MCLEAN v. CITY OF PHILADELPHIA
MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM IS GRANTED; ETC.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/20/16. 12/21/16 ENTERED AND E-MAILED AND FAXED BY CHAMBERS.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA
DECEMBER 20 , 2016
Presently before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim.
(ECF No. 3.) For the following reasons, Defendant’s Motion will be granted.
Factual Background 1
Plaintiff’s Amended Complaint alleges that on January 12, 2013, Plaintiff Jacquelyn
McLean requested emergency services and transportation to a nearby hospital. (Am. Compl. ¶¶
4-5, ECF No. 1.) Defendant City of Philadelphia and its employees, who operated a Philadelphia
Fire Department Rescue Ambulance (hereinafter, the “ambulance”), responded and arrived at
5716 Malcom Street in Philadelphia, Pennsylvania at approximately 10:00 a.m. (Id. ¶ 4.) Upon
their arrival, City employees directed Plaintiff to ambulate herself into the ambulance. (Id. ¶ 7.)
As she entered the ambulance without assistance from Defendant, Plaintiff fell backwards out of
the ambulance and landed on the ground. (Id. ¶ 8.) Plaintiff suffered injuries to her ankle, neck,
and back. (Id. ¶ 9.)
For the purpose of this Motion, the factual allegations in the Amended Complaint are
taken as true. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989).
On January 7, 2015, Plaintiff filed a Complaint against Defendant in the Court of
Common Pleas in Philadelphia. (Notice of Removal ¶ 1, ECF No. 1.) On February 2, 2015,
Plaintiff filed an Amended Complaint. The Amended Complaint asserts claims under 42 U.S.C.
Section 1983 for violations of Plaintiff’s civil rights under the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution. (Am. Compl. ¶ 19.) 2 On February
25, 2015, Defendant filed a Notice of Removal to this Court. Defendant subsequently filed a
Motion to Dismiss for Failure to State a Claim. Plaintiff filed an Answer to Defendant’s Motion
to Dismiss. (ECF No. 7.)
Under Federal Rule of Civil Procedure 8(a)(2), “[a] pleading that states a claim for relief
must contain a short and plain statement of the claim showing that the pleader is entitled to
relief.” Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to
state a claim upon which relief can be granted. A motion under Rule 12(b)(6), tests the
sufficiency of the complaint against the pleading requirements of Rule 8(a). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A
Plaintiff’s Amended Complaint alleges negligence and recklessness on the part of
Defendant. However, in a footnote in the Memorandum of Law attached to Plaintiff’s Answer to
Defendant’s Motion to Dismiss, Plaintiff states: “The Amended Complaint seeks to impose
liability upon the City solely based upon a Section 1983 claim and raises no claims under the
Tort Claims Act.” Accordingly, Plaintiff is not pursuing any state law claims.
complaint that merely alleges entitlement to relief, without alleging facts that show entitlement,
must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Courts
need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements . . . .” Iqbal, 556 U.S. at 678. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at 679. This
‘“does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556).
In determining whether dismissal of the complaint is appropriate, courts use a two-part
analysis. Fowler, 578 F.3d at 210. First, courts separate the factual and legal elements of the
claim and accept all of the complaint’s well-pleaded facts as true. Id. at 210-11. Next, courts
determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
“‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). Given the nature of
the two-part analysis, “‘[d]etermining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.’” McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009) (quoting
Iqbal, 556 U.S. at 679).
Section 1983 Liability
Section 1983 states in relevant part that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . the deprivation of any rights . . . secured by the Constitution and
laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. A “person”
includes local government units and municipalities. See Monell v. Dep’t of Soc. Servs. of New
York, 436 U.S. 658, 690 (1978). “A cause of action under Section 1983 requires only two
allegations: a person has deprived the plaintiff of a federal right, and that person acted under
color of state or territorial law.” Goldwire v. City of Phila., No. 15-2856, 2015 WL 5334314, at
*2 (E.D. Pa. Sept. 11, 2015) (citing Gomez v. Toledo, 446 U.S. 635 (1980)). Here, Plaintiff
asserts that she was deprived of a number of her rights. Plaintiff alleges that the conduct of
Defendant violated her constitutional rights to be free from “unreasonable searches and seizures,
rights to medical care in custody, rights to be free from cruel and unusual punishment, rights to
privacy, right to bodily integrity, right to safety, and to substantive and procedural due process,
as guaranteed by the Fourth, Fifth, Eighth and Fourteenth Amendments . . . .” (Am. Compl. ¶
19.) Clearly, no facts are alleged from which this Court could even consider violations of the
Fourth, Fifth, and Eighth Amendments. Only the Fourteenth Amendment substantive due
process claim warrants discussion.
The Third Circuit has made it clear that the “Due Process Clause does not require the
State to provide rescue services” and that the clause does not “place an affirmative obligation on
the State to provide competent rescue services if it chooses to provide them.” Brown v. Pa.
Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 478 (3d Cir. 2003); see
also Salazar v. City of Chi., 940 F.2d 233, 237 (7th Cir. 1991) (“Government generally has no
constitutional duty to provide rescue services to its citizens, and if it does provide such services,
it has no constitutional duty to provide competent services to people not in its custody.” (citation
omitted)). Two exceptions exist under this non-liability rule. If a municipality has a “special
relationship” with the plaintiff or if a municipality “places the [plaintiff] in a position of danger,”
then it may be held liable. See Brown, 318 F.3d at 478. In addition, a city may be liable if the
execution of its policy or custom inflicts injury on another. Monell, 436 U.S. at 694.
A special relationship is created and a municipality or state has an affirmative duty to
protect another “when the State by the affirmative exercise of its power so restrains an
individual’s liberty that it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.
189, 200 (1989). This relationship only arises when a “comprehensive custodial relationship”
occurs. Torisky v. Schweiker, 446 F.3d 438, 445 (3d Cir. 2006). The special relationship
exception has been interpreted by the Third Circuit as requiring physical custody, such as
“incarceration, institutionalization or other similar restraint[s] of personal liberty.” Id. (internal
citation and quotation marks omitted); see also Sanford v. Stiles, 456 F.3d 298, 304 n.4 (3d Cir.
2006) (stating that the special relationship “is a very limited exception”). Custody is of
importance because “it deprive[s] the individual of the liberty necessary to care for himself.”
Brown, 318 F.3d at 479. Moreover, the custody must be involuntary. A special relationship is
not created by voluntary custody. Sanders v. City of Phil., 513 F. Supp. 2d 439, 446 (E.D. Pa.
2007); see also D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1373
(3d Cir. 1992).
In this case, Plaintiff simply alleges that a special relationship formed between the parties
because Defendant undertook “an affirmative act to provide Plaintiff medical care.” (Am.
Compl. ¶ 15.) Clearly, Plaintiff has failed to plead facts sufficient to establish the creation of a
special relationship. There are no facts to suggest that Plaintiff was either in physical custody or
restrained in any way when her injuries occurred. There are also no facts which would allow this
Court to infer that Plaintiff was deprived of the liberty to care for herself. In fact, the pleadings
suggest otherwise. Plaintiff was free to get into the ambulance and she was also free to leave the
ambulance if she so chose. (Id. ¶ 7.) No special relationship was created here.
A municipality may also incur Section 1983 liability for a substantive due process
violation of the Fourteenth Amendment under the state-created danger doctrine. Henry v. City of
Erie, 728 F.3d 275, 281 (3d Cir. 2013). To establish a state-created danger claim, Plaintiff must
establish the following four elements:
(1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor
acted with a degree of culpability that shocks the conscience; (3) a relationship
existed between the state and the plaintiff . . . ; and (4) the state actor
affirmatively used his or her authority in a way that created a danger to the citizen
or that rendered the citizen more vulnerable to danger than had the state acted at
Id. at 282. Liability attaches when “the state acts to create or enhance a danger that deprives the
plaintiff of his or her Fourteenth Amendment right to substantive due process.” Morrow v.
Balaski, 719 F.3d 160, 177 (3d Cir. 2013) (emphasis in original). The degree of wrongfulness
needed to reach the conscience-shocking level is dependent upon the circumstances of a
particular case. See Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999). However,
“[m]ere negligence is not enough to shock the conscience.” Sanford, 456 F.3d at 311.
To satisfy the third prong, there must be a relationship between the parties “such that the
plaintiff was a foreseeable victim in the tort sense, and not in the custodial sense because the
Plaintiff cites older Third Circuit cases with second prongs that state, “the state actors
acted in willful disregard for the safety of the plaintiff.” See, e.g., Brown, 318 F.3d at 479;
Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). The most recent Third Circuit precedent
follows the Supreme Court in using the “shocks the conscience” standard. See Sanford, 456 F.3d
at 305 (“The [Supreme] Court held that generally, in a due process challenge to executive action,
the threshold question is whether the government officer’s actions ‘shock the contemporary
conscience.’” (citing Lewis, 523 U.S. at 847 n.8)).
State has deprived the individual of the liberty necessary to care for himself.” Brown, 318 F.3d
at 479. The fourth prong requires the municipality to carry out an affirmative act. See Sanford,
456 F.3d at 311. In order for a state danger to be created, a municipality’s affirmative act must
expose the plaintiff to danger. See Bright v. Westmoreland Cty., 443 F.3d 276, 282 n.6 (3d Cir.
2006). Passive inaction does not constitute an affirmative act. Morrow, 719 F.3d at 178.
Here, Plaintiff alleges that Defendant failed to assist Plaintiff as she stepped into the
ambulance. (Am. Compl. ¶ 8.) Without more, Plaintiff has failed to plead sufficient facts to
establish that a danger was created by Defendant. Even assuming that the first and third prongs
have been satisfied, sufficient facts do not exist to allow this Court to infer that the second or
fourth prongs have been established. Plaintiff contends that Defendant’s conduct was so
egregious that it is conscience shocking. (Id. ¶ 10.) However, Plaintiff has failed to plead any
facts which illustrate how failing to assist Plaintiff into the ambulance was anything more than
mere negligence. Plaintiff offers no facts as to why Plaintiff required emergency services and
why her condition or factual circumstances would have prevented her from ambulating herself.
Without factual support, such an assertion is merely conclusory. Moreover, without pleading
facts alleging how Defendant’s affirmative act exposed Plaintiff to a danger in entering the
ambulance, it cannot be inferred how the forth prong of the state-created danger doctrine has
been satisfied. Accordingly, no plausible claim for relief exists under the state-created danger
A municipality “may not be held liable under Section 1983 through the respondeat
superior doctrine.” Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990). A
municipality may be liable, however, if the execution of its policy or custom causes a plaintiff’s
injury. Monell, 436 U.S. at 694. A policy occurs when a “‘decisionmaker possess[ing] final
authority to establish municipal policy with respect to the action issues an official proclamation,
policy, or edict.’” Andrews, 895 F.2d at 1480 (quoting Pembaur v. City of Cincinnati, 475 U.S.
469, 481 (1986)). A custom is a “persistent and widespread” practice of state officials that is so
“permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Monell,
436 U.S. at 690.
“[I]t is incumbent upon a plaintiff to show that a policymaker is responsible either for the
policy or, through acquiescence, for the custom.” Andrews, 895 F.2d at 1480. To establish a
substantive due process violation by a municipality through a Monell claim, “a plaintiff must
show that executive action was ‘so ill-conceived or malicious that it shocks the conscience.’”
Mulholland v. Gov’t Cty. of Berks, Pa., 706 F.3d 227, 241 (3d Cir. 2013) (quoting Miller v. City
of Phila., 174 F.3d 368, 375 (3d Cir. 1999)). Defining conduct that shocks the conscience does
not draw on any traditional standard of liability from tort law but rather refers to “conduct
intended to injure in some way unjustifiable by any government interest.” Cty. Of Sacramento v.
Lewis, 523 U.S. 833, 849 (1998).
Here, Plaintiff alleges that Defendant executed a policy or custom that created an
unreasonable risk of harm, which caused Plaintiff’s injuries, and that Defendant was aware of the
need for additional or different policies. (Am. Compl. ¶¶ 12, 17-18.) We are satisfied that
Plaintiff has failed to plead sufficient facts from which to infer that the execution of a policy or
custom caused the Plaintiff’s constitutional deprivations. For example, no facts are pled that a
policy existed directing city fire department employees to instruct people in need of emergency
services to ambulate themselves. Plaintiff simply makes the bald assertion, without basis, that
Defendant had a policy or custom that caused her harm. (Id. ¶ 12.) This is exactly the kind of
meritless claim that warrants dismissal.
For the foregoing reasons, Defendant’s Motion to Dismiss will be granted and Plaintiff’s
Complaint will be dismissed.
An appropriate Order follows.
BY THE COURT:
R. BARCLAY SURRICK, J.
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