THORNTON et al v. CITY OF PITTSBURGH et al

Filing 14

First MOTION to Dismiss re: 1 Amended Complaint by NORMAN AUVIL, MARK A. BOCIAN, CITY OF PITTSBURGH, RON CURRY, JOSIE DIMON, ANDREW LAGOMARSINO, KIM LONG, ROBERT J. MCCAUGHAN, RONALD W. ROMANO. (Attachments: # 1 Proposed Order) (Doherty, John) Modified on 12/2/2010. (plh)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THERESA E. THORNTON and JEREMIAH
C. MITCHELL, as Co-Administrators of the
Estate of Curtis L. Mitchell, deceased;

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)
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Plaintiffs,
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v.
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CITY OF PITTSBURGH; ROBERT J.
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MCCAUGHAN; MARK A. BOCIAN; RONALD )
V. ROMANO; JOSIE DIMON; ANDREW
)
LAGOMARSINO; KIM LONG; NORMAN
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AUVIL; RON CURRY; ALLEGHENY
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COUNTY; and COUNTY OF ALLEGHENY
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DEPARTMENT OF EMERGENCY
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SERVICES,
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Defendants.
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CIVIL DIVISION
No: 10-cv-01436
Judge Gary L. Lancaster
Defendants’ Motion to Dismiss Plaintiffs’
Amended Complaint Pursuant to Fed. R.
Civ. P. 12(b)(6).
Filed on Behalf of Defendants: City of
Pittsburgh; Robert J. McCaughan; Mark A.
Bocian; Ronald V. Romano; Josie Dimon;
Andrew Lagomarsino; Kim Long; Norman
Auvil; and Ron Curry.

FED. R. CIV. P. 12(b)(6) MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
AND NOW come Defendants, City of Pittsburgh, Robert J. McCaughan, Mark A. Bocian, Ronald V.
Romano, Norman Auvil, Ron Curry, Kim Long, Andrew Lagomarsino and Josie Dimon, by and through
undersigned counsel, John F. Doherty, Associate City Solicitor and Daniel D. Regan, City Solicitor, and
submit this 12(b)(6) Motion to Dismiss For Failure to State A Claim and Brief in Support and, in support
thereof, aver the following:
1.

Defendants hereby incorporate by reference Defendants’ Brief in Support of this 12(b)(6)

Motion To Dismiss, attached hereto, as if fully set forth herein.
I.

FACTS
2.

The relevant facts, rendered with greater particularity in Defendants’ accompanying Brief in

Support of this 12(b)(6) Motion to Dismiss, arise out of three (3) failed attempts, during an ongoing,
catastrophic snow emergency during February 5 and 6, 2010, to reach the residence of, and render aid to

Decedent, Curtis Mitchell, who had either himself or by and through his girlfriend, Ms. Sharon Edge,
contacted by telephone Allegheny County 9-1-1 to request a City of Pittsburgh Emergency Medical
Services (EMS) ambulance. (Amended Complaint ¶¶ 20-37)
3.

On the second of the two initial attempts, Defendant Medic, Josie Dimon, was unable to

cross the nearby Elizabeth Street Bridge and was discharged when informed that Decedent would not walk
to meet her waiting ambulance. (Amended Complaint ¶ 28)
4.

On the Third and final failed attempt, Defendant Medic, Andrew Lagomarsino, was

dispatched pursuant to Decedent’s request and crossed the Bridge but stopped approximately one block
from Decedent’s home, where, after Ms. Edge informed 9-1-1 that Decedent was sleeping, he departed.
(Amended Complaint ¶¶ 34-37)
5.

Throughout the duration of the alleged events complained of in Plaintiffs’ Amended

Complaint, Decedent, Mitchell, and girlfriend, Edge, spoke with Defendant Dispatcher, Kim Long, who on at
least one occasion suggested that Decedent “needed to take a bus” to the hospital. (Amended Complaint
¶¶ 41-42).
6.

Also throughout the duration of these alleged events, Defendants Robert J. McCaughan,

Mark A. Bocian and Ronald V. Romano were Chief of Pittsburgh EMS, Deputy Chief of Pittsburgh EMS and
Ambulance Division Chief of Pittsburgh EMS, respectively, while Defendants Norman Auvil and Ron Curry
were at all relevant times district chiefs which are roving field supervisors. (Amended Complaint ¶¶ 12-14
and 18-19)
II.

CRITERIA FOR EVALUATING A RULE 12(B)(6) MOTION TO DISMISS
7.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint “for

failure to state a claim upon which relief can be granted.” See, Fed. R.Civ.P., Rule 12(b)(6).
8.

When considering a 12(b)(6) motion, the court must accept as true all facts alleged in the

complaint and reasonable inferences that can be drawn from them. See, e.g. H.J. Inc. v. Northwestern

Bell Tel. Co., 492 U.S. 229, 249-50, 106 L.Ed.2d 195, 109 S.Ct. 2893 (1989) (dicta); Doe v Delie, 257
F.3d 309, 313 (3d. Cir. 2001) (dicta); Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000) (dicta).
9.

However, the fact that a Court must assume as true all facts alleged, does not mean the

Court must accept as true unsupported conclusions and unwarranted inferences: generalized, conclusory
factual allegations are not sufficient to withstand a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal,
_U.S._, 129 S.Ct. 1937, 1950 (2009).
10.

This principle, once applied to the allegations in Plaintiffs’ Amended Complaint, demands

the dismissal of each claim against the City of Pittsburgh and its employees.
III.

MOTIONS TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE GRANTED
A.

11.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted Under 42 U.S.C. § 1983

42 U.S.C. § 1983 does not itself create any substantive rights, City of Oklahoma v.

Tuttle, 471 U.S. 808 (1985); rather it provides a civil remedy to individuals who have sustained a
deprivation of rights established by the United States Constitution or federal law and caused by persons
acting under color of state law. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
12.

Plaintiffs’ Amended Complaint identifies eleven (11) individuals or persons who allegedly

acted under color of state law, and this Motion to Dismiss and attached Brief in Support thereof address the
conduct of the eight (8) individuals noted in the foregoing as well as the City of Pittsburgh, itself considered
a person for purposes of claims brought under § 1983. See Monell v. Dep’t of Social Servs., 436 U.S.
658, 690 (1978).
13.

Any action brought under § 1983 requires Plaintiffs’ to establish two essential elements:
a.

Whether a person acting under color of state law engaged in the conduct
forming the basis of the complaint; and

b.

Whether the conduct deprived a person of his or her rights, privileges or
immunities secured by the Constitution of the United States.

14.

The “conduct” in question is an alleged failure to rescue the Decedent following his

telephone call to 9-1-1, which at best demonstrates various omissions rather than actions. (See Amended
Complaint, generally, ¶¶ 20-47.)
15.

However, the Supreme Court has held that the Due Process clause is phrased as a

limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.
DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195 (1989).
16.

The Third Circuit further declared there is “no federal constitutional right to rescue

services, competent or otherwise.” Brown v. Pennsylvania Dep’t of Health Emergency Medical Servs.
Training Inst., 318 F.3d 473, 478 (3d Cir. 2003).
17.

Therefore, in the absence of any constitutional right to rescue services, the Amended

Complaint does not state a cause of action against either the City of Pittsburgh or its employees and must
be dismissed.
B.

18.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted Under State-Created Danger Exception To 42 U.S.C.
§ 1983

The Supreme Court and subsequent appellate courts have recognized only two (2) narrow

exceptions to the foregoing no-duty rule: the special relationship exception, not implicated by Plaintiffs
herein, and the state-created danger exception. See DeShaney, 489 U.S. 189, 195 (1989) and Kneipp v.
Tedder, 95 F.3d 1199, 1209 (3d Cir. 1996).
19.

The state-created danger exception provides for the imposition of a particularized duty to

protect an individual when “the state, through its affirmative conduct, creates or enhances a danger for the
individual,” Brown, 318 F.3d at 483, and requires the satisfaction of all four (4) conjunctive elements:
a.

there existed some relationship between the state and the plaintiff;

b.

c.

the harm ultimately caused was foreseeable and fairly direct; and

d.

20.

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 not acted at all;

the state actor acted with a degree of culpability that shocks the
conscience.

As to the “special relationship element” this Circuit does not recognize the requisite

relationship absent some showing—not averred here—that the state impermissibly limited Decedent’s
freedom to act on his own behalf. See Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006); Ye
v. United States, 484 F.3d 634 (3d Cir. 2007).
21.

In addition, a successful claim requires some allegation—again absent from the Amended

Complaint—that 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 that had the state not acted at all.” Sanford v.
Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006).
22.

“[A]n expression of intent to help, is not an affirmative act sufficient to trigger constitutional

obligations.” Ye, 484 F.3d at 641.
23.

Alternatively, Plaintiffs admit sufficient facts that confirm this Decedent did not rely on any

such expression by Defendant, negating any conclusory, legal assertions to the contrary. (See Amended
Complaint ¶ 42)
24.

Finally, in order to establish liability, a state official’s action must be so ill conceived or

malicious that it shocks the conscience. Brown, 318 F.3d at 480 (quoting Miller v. City of Philadelphia,
174 F.3d 368, 368 (3d Cir. 1999).
25.

Rather than plead any facts of conscience-shocking conduct, Plaintiffs merely assert

various omissions, notwithstanding that the “indefensible passivity” and “nonfeasance” of which Plaintiffs

complain here “do not rise to the level of a constitutional violation.” Brown, 318 F.3d at 479 (quoting D.R. v.
Middle Bucks Area Vocational Tech. Sch., 972 F.2d at 1376.
26.

Based on the foregoing and various factual admissions more clearly delineated in

Defendants’ accompanying Brief, Plaintiffs’ state-created danger claim against the City of Pittsburgh and its
employees must be dismissed.
C.

27.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted In Each Separate § 1983 Action Against Each
Employee of the City of Pittsburgh

A finding of personal liability of an official requires an identical showing that the official,

acting under color of law, caused the deprivation of a federal right. Taylor v. Altoona Area Sch. Dist., 513
F. Supp.2d 540, 571 (W.D.Pa. 2007) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
28.

Plaintiffs factual allegations with respect to the named individual Defendants vary from

nonexistent (for example, Defendants McCaughan, Bocian and Romano are mentioned nowhere other than
to name them as parties to this action) to vague references to various omitted acts.
29.

However, the Third Circuit has “never found a state-created danger claim to be meritorious

without an allegation and subsequent showing that state authority was affirmatively exercised.” Bright, 443
F.3d at 282 (emphasis added).
30.

Absent any affirmative showing, Plaintiffs’ claims against these individual Defendants must

be dismissed.
D.

31.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted As Recovery Against The City Of Pittsburgh And Its
Agents For Gross Negligence Is Barred By The Political Subdivisions
Tort Claims Act, 42 Pa. C.S.A. §§ 8541 et seq.

The Commonwealth of Pennsylvania does not recognize varying degrees of negligence.

Ferrick Excavating & Grading Co. v. Senger Trucking Co., 484 A.2d 744, 749 (Pa. 1984), and “even
where an employee acts with a degree of culpability equivalent to recklessness, Pennsylvania law

nevertheless affords him immunity.” Bright v. Westmorland County, 443 F.3d 276, 287 (3d Cir. 2006)
(citing Williams v. City of Philadelphia, 569 A.2d 419, 421-22 (Pa. Commw. Ct. 1995).
32.

If this Court chooses to interpret these claims as simple negligence, these claims are

barred under the Political Subdivisions Tort Claims Act, 42 Pa. C.S.A. §§ 8541 et seq.
33.

Defendant City of Pittsburgh is a local municipal agency of the Commonwealth. (Amended

Complaint ¶ 7)
34.

Municipalities such as the City of Pittsburgh and any employees thereof acting within the

scope of their duties are immune from tort suit absent successful pleading within one of the eight (8) narrow
exceptions identified under the Act. 42 Pa. C.S.A. §§ 8541 and 8542.
35.

Plaintiffs have not pled facts sufficient to constitute a cognizable claim under any of these

exceptions, therefore all negligence claims against the City of Pittsburgh and each of the named individual
Defendants, as employees thereof, must be dismissed.
E.

36.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted For Willful Misconduct Under Pennsylvania Law

Willful misconduct is not itself a cause of action, but rather describes the level of culpability

associated with a particular breach of duty, and Plaintiffs must therefore plead some underlying claim
sounding in negligence. 42 Pa. C.S.A. § 8542; Steiner v. City of Pittsburgh, 509 A.2d 1368, 1370 (Pa.
Commw. Ct. 1986).
37.

Specifically, Plaintiffs have not included as is required of them allegations of some duty

owed by the state actor to the specific injured complainant, largely because none exists under
Pennsylvania law. See e.g. Thomas v. City of Philadelphia, 574A.2d 1205 (Pa. Commw. Ct. 1990),
appeal denied, 593 A.2d 429 (Pa. 1990).

38.

In addition to the lack of any underlying duty supportive of Plaintiffs’ claim, Plaintiffs

neglect to aver sufficient facts of intentionality to sustain a claim of willful misconduct as is required at law.
Robbins v. Cumberland County Children & Youth Servs., 802 A.2d 1239, 1253 (Pa. Commw. Ct. 2002).
39.

The Third Circuit has long required a showing equivalent to an intentional tort, however,

Plaintiffs herein have not included any facts from which this Court could infer such intent. Brown v.
Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2001) (citing Delate v. Kolle, 667 A.2d 1218, 1221 (Pa.
Commw. Ct. 1995).
F.

40.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted As Willful Misconduct Claims Against The City Of
Pittsburgh Are Barred Under State Law

While both the City and its employees are categorically immune from any acts which fall

short of willful misconduct under the Political Subdivisions Tort Claims Act, 42 Pa. C.S.A. §§ 8541 et seq.,
any act which rises to a level of culpability deemed willful misconduct, while it may de-immunize the
perpetrating employee, “simultaneously places that claim outside the category of claims for which a local
agency can be held liable.” See e.g. Thomson v. Wagner, 631 F. Supp. 2d 664, 689 (W.D.Pa. 2008).
41.

Therefore, no matter the resulting determination of this Court, either all defendants are

immune from a finding of negligence or, in the alternative, upon a finding of willful misconduct, the City of
Pittsburgh is alone immune from liability and any claims charging the City with willful misconduct must be
dismissed.
G.

42.

Fed. R. Civ. P. 12(b)(6) Failure To State A Claim Upon Which Relief
May Be Granted As Vicarious Liability Claims Against The City Of
Pittsburgh Are Improper Under Both 42 U.S.C. § 1983 and State Tort
Claims

As to the federal claims, no municipal entity may be vicariously liable for a constitutional

violation brought under 42 U.S.C. § 1983 “solely because it employs a tortfeasor.” Monell v. Dep’t of
Social Servs., 436 U.S. 658, 691-92 (1978).

43.

Turning to Plaintiffs’ state tort claims, municipal liability is governed exclusively by the

Political Subdivisions Tort Claims Act, which states that “no local agency shall be liable for any damages on
account of any injury to a person or property caused by any act of the local agency or any employee
thereof or any other person.” 42 Pa. C.S.A. § 8541.
44.
IV.

Therefore, Plaintiffs’ vicarious liability claims must be dismissed for failure to state a claim.

CONCLUSION
WHEREFORE, Plaintiffs herein have failed to state a claim upon which relief may be granted

against Defendants City of Pittsburgh and any of its named, individual employees, and Defendants
respectfully request this Honorable Court Grant this Motion and dismiss Plaintiffs Amended Complaint with
prejudice.

Respectively Submitted,
/s/John F. Doherty, Esquire
John F. Doherty, Esquire
Associate City Solicitor
Pa. I.D. No. 56418
/s/ Daniel D. Reagan
Daniel D. Reagan
City Solicitor
Pa. I.D. No. 89141
City of Pittsburgh Department of Law
313 City-County Building
414 Grant Street
Pittsburgh, PA 15219
412-255-2016