                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2002

Brown v. Comm PA Emergency
Precedential or Non-Precedential: Precedential

Docket No. 01-3234




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PRECEDENTIAL

       Filed August 8, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3234

CHARMAINE BROWN; ORAL DOUGLAS, in their
individual capacities and as Administrators of the Estate
of Shacquiel A. Douglas

       Appellants

v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
HEALTH EMERGENCY MEDICAL SERVICES TRAINING
INSTITUTE; CITY OF PHILADELPHIA; MARK STEWART,
individual and official capacity; JOHN CAFFEY, individual
and official capacity

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 99-cv-04901)
District Judge: The Honorable Herbert J. Hutton

Argued April 18, 2002

Before: NYGAARD, AMBRO, and KRAVITCH,*
Circuit Judges.

(Filed: August 8, 2002)

_________________________________________________________________

* Honorable Phyllis A. Kravitch, Circuit Judge for the United States
Court of Appeals for the Eleventh Circuit, sitting by designation.


       David J. Berney, Esq. (Argued)
       Nancy G. Rhoads, Esq.
       Sheller Ludwig & Badey
       1528 Walnut Street, 3rd Floor
       Philadelphia, PA 19102
        Counsel for Appellants

       Jane L. Istvan, Esq. (Argued)
       Richard G. Feder, Esq.
       City of Philadelphia Law Department
       1515 Arch Street, One Parkway
       Philadelphia, PA 19102
        Counsel for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge:
This civil rights lawsuit arises out of the tragic death of
Appellants’ one-year-old son after choking on a grape. The
District Court granted summary judgment for the City
because there was no genuine issue of material fact, and it
concluded that deliberate indifference by city policymakers
had not been shown. The District Court also granted
summary judgment for Stewart and Caffey because it
concluded that the federal claim was barred by a prior state
judgment. Because there is no constitutional right to rescue
services, competent or otherwise, Appellants have failed to
state a constitutional claim, and we will affirm.

I.

Shacquiel Douglas, the one-year-old son of Appellants
Charmaine Brown and Oral Douglas, was at the residence
of Angela Morris, his maternal aunt. While there, Shacquiel
choked on a grape. Morris dialed "911" at 11:06:22 a.m.
and informed the operator that her nephew was choking on
a grape. The 911 operator called Appellees Mark Stewart
and John Caffey, who were emergency medical technicians
("EMTs") at Engine 73, Fire House at 76th Street and

                                2


Ogontz Avenue in Philadelphia. The operator then informed
Morris that "[r]escue is gonna come help you." At
approximately 11:10:24 a.m., Morris again called 911 to
determine when the EMTs would arrive. Morris was
informed that "[r]escue was on the way." At approximately
11:14:50 a.m., when the EMTs still had not arrived, Morris
placed a third call to the 911 operator and was again told
that help was on the way.

Stewart and Caffey arrived at Morris’s residence at
approximately 11:16:35 a.m., which is about ten minutes
after the initial 911 call had been placed. They transported
Shacquiel to Germantown Hospital and tried to restore
Shacquiel’s breathing during the trip. Once at the hospital,
the grape was removed from Shacquiel’s throat. He was
then transferred to St. Christopher’s Hospital for Children
where he died two days later due to "asphyxia by choking."

Appellants filed a civil complaint in the Court of Common
Pleas of Philadelphia County against Stewart and Caffey
alleging a state tort cause of action based on the same facts
as their federal claim. The Court of Common Pleas granted
Stewart and Caffey’s motion for summary judgment and
dismissed all claims against them.

Then, Appellants, in their individual capacities and as
administrators of Shacquiel’s estate, filed a civil rights
lawsuit under 42 U.S.C. S 1983 against the City of
Philadelphia, and Stewart and Caffey in their individual
and official capacities.1 Count I of the Complaint asserts a
S 1983 claim against Stewart and Caffey for alleged
violations of their son’s life, liberty, personal security, and
bodily integrity without due process of law in violation of
the Fourteenth Amendment and for deprivation of their
son’s rights, privileges, and immunities secured by the laws
and Constitution of the Commonwealth of Pennsylvania.
Count II asserts a S 1983 claim against the City for
violations of the Commonwealth Constitution and the
Fourth and Fourteenth Amendments. The claims arising
_________________________________________________________________

1. The Commonwealth of Pennsylvania Department of Health was also
sued, but that claim was dismissed because it was barred by Eleventh
Amendment sovereign immunity. Brown v. Pennsylvania, No. 99-4901,
2000 WL 562743, at *3 (E.D. Pa. May 8, 2000).

                                3


under the Commonwealth Constitution and the Fourth
Amendment were dismissed, so only the Fourteenth
Amendment claim remained.

The District Court granted the City of Philadelphia’s
motion for summary judgment because it found that
Appellants had failed to raise a genuine issue of material
fact and because Appellants had not shown "deliberate
indifference" by City policymakers. Brown v. City of
Philadelphia, No. CIV.A. 99-4901, 2001 WL 884555, at *6
(E.D. Pa. July 31, 2001). The District Court also granted
Stewart and Caffey’s motion for summary judgment
because it concluded that Appellants’ federal lawsuit
against Stewart and Caffey was barred under principles of
claim preclusion by the prior state court judgment. Id. at
*10. It is from this order that Brown and Douglas now
appeal.

We review grants of summary judgment de novo and
apply the same test as the District Court. Blair v. Scott
Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). We
may affirm the District Court on any basis which has
support in the record. Bernitsky v. United States, 620 F.2d
948, 950 (3d Cir. 1980).

II.

This case presents another example of a trend among
plaintiffs who try to transmute their garden variety torts
into cases of federal constitutional dimension. Here,
parents of a deceased child are trying to hold liable the
EMTs for their failure to save him, and the City for its
failure to adequately train its EMTs. Appellants allege that
42 U.S.C. S 1983, and the substantive component of the
Fourteenth Amendment’s Due Process Clause, provide them
a cause of action under the federal Constitution. Whether
citizens have a constitutional right to receive competent
rescue services is an issue that we have not addressed. We
now conclude that the Constitution confers no such right.

A. No Duty to Rescue

The starting point for any discussion of a state’s failure

                                4
to provide rescue services is DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989),
where the Supreme Court held that the Due Process Clause
generally does not require the government to provide
intervention or rescue services. Id. at 196-97. The facts in
DeShaney were "undeniably tragic." Id. at 191. Joshua
DeShaney’s father had been awarded custody of the young
boy in divorce proceedings. Id. Over a period of time, the
Department of Social Services became aware that Joshua
was being abused by his father. Id. at 192. A caseworker
made visits to the DeShaney home, and noticed suspicious
injuries to Joshua, which she recorded along with her belief
that someone in the home was abusing Joshua, but she
took no further action. Id. at 192-93. Eventually, Joshua’s
father beat the four-year-old child so severely that he
suffered irreparable brain damage and will likely spend his
entire life institutionalized. Id. If ever a set of facts cried out
for intervention and protection from some person or entity,
it was the facts in DeShaney. Nonetheless, the Supreme
Court held that the State had no constitutional obligation to
rescue Joshua DeShaney from his father’s cruelty. 2

The Court reached its decision by carefully examining the
text and history of the Fourteenth Amendment’s Due
Process Clause. That clause provides:

       No State shall . . . deprive any person of life, liberty, or
       property, without due process of law.

The Court noted that when claimants such as Joshua
DeShaney argue that they have been deprived of life or
liberty by the state’s failure to provide adequate protection,
they are invoking the substantive component, rather than
the procedural component, of the Due Process Clause. Id.
at 195. That is, they argue not that they have been
deprived of life or liberty without the State following
adequate procedural safeguards, but rather that the State
is categorically required to prevent harm in certain
instances. Id.
_________________________________________________________________

2. As in DeShaney, our reference to "State" and "government" "refers
generically to state and local governmental entities and their agents."
DeShaney, 489 U.S. at 195 n.1.

                                5


Looking to the constitutional text, the Court observed
that

       nothing in the language of the Due Process Clause
       itself requires the State to protect the life, liberty, and
       property of its citizens against invasion by private
       actors. The 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. It forbids the
       State itself to deprive individuals of life, liberty, or
       property without "due process of law," but its language
       cannot fairly be extended to impose an affirmative
       obligation on the State to ensure that those interests
       do not come to harm through other means.

Id. The Court also found no duty to protect or rescue in the
history of the amendment. The Court noted that "the Due
Process Clause of the Fourteenth Amendment was intended
to prevent government ‘from abusing [its] power, or
employing it as an instrument of oppression.’ " Id. at 196
(quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986)).
The Clause was intended "to protect the people from the
State, not to ensure that the State protected them from
each other." Id. Since the State is not constitutionally
required by the Due Process Clause to provide protective
services, the Court found that there can be no liability
when the State fails to provide such services, even if it
would have prevented the private injury from occurring. Id.
at 196-97.

1. "Special Relationship" Exception

Two exceptions to DeShaney’s general rule that the State
is not required to provide protective or rescue services have
been recognized by the courts. The first was articulated by
the Court in DeShaney and has been called the "special
relationship" exception. The Court found that, although the
State has no general obligation to provide protective
services, "[i]t is true that in certain limited circumstances
the Constitution imposes upon the State affirmative duties
of care and protection with respect to particular
individuals." Id. at 198. The Court recognized that "when
the State takes a person into its custody and holds him

                                  6


there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his
safety and general well-being." Id. at 199-200. This "special
relationship" has been found in cases involving prisoners,
pre-trial detainees, persons in police custody, and persons
in mental institutions. See Collins v. City of Harker Heights,
503 U.S. 115, 127 (1992) (collecting cases). The Court has
explained the rationale for the rule as follows:

       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--e.g., food,
       clothes, shelter, medical care, and reasonable safety--it
       transgresses the substantive limits on state action set
       by the Eighth Amendment and the Due Process
       Clause. The affirmative duty to protect arises not from
       the State’s knowledge of the individual’s predicament
       or from its expressions of intent to help him, but from
       the limitation which it has imposed on his freedom to
       act on his own behalf.

Id. at 200 (citations omitted).
2. State-Created Danger Exception

The other exception to DeShaney’s general rule that the
State has no affirmative constitutional obligation to protect
or rescue is called the "state-created danger" exception and
involves situations where the State caused the harm or
made someone more vulnerable to an existing harm. This
exception was not clearly defined by the Court in
DeShaney, but has been developed by the inferior courts
based upon the Court’s statement in DeShaney that

       [w]hile the State may have been aware of the dangers
       that Joshua faced in the free world, it played no part
       in their creation, nor did it do anything to render him
       any more vulnerable to them. That the State once took
       temporary custody of Joshua does not alter the
       analysis, for when it returned him to his father’s
       custody, it placed him in no worse position than that
       in which he would have been had it not acted at all;
       the State does not become the permanent guarantor of

                                7


       an individual’s safety by having once offered him
       shelter.

Id. at 201.

We adopted the state-created danger theory of liability in
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). To state a
claim for a civil rights violation under the state-created
danger theory, a plaintiff must show: (1) the harm
ultimately caused was foreseeable and fairly direct; (2) the
state actors’ conduct "shocks the conscience"; (3) there
existed some relationship between the State and the
plaintiff; and (4) the state actors used their authority to
create an opportunity that otherwise would not have
existed for the third party to cause harm. Id. at 1208 (citing
Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.
1995)); County of Sacramento v. Lewis, 523 U.S. 833, 846
(1998) (recognizing that the "shocks the conscience"
standard is the appropriate measure for evaluating
executive abuses of power). The "relationship" required by
the third element of this test is different than the
"relationship" in the "special relationship" exception to
DeShaney discussed above. In the context of the state-
created danger theory, the "relationship" requirement
implies that there was contact between the parties such
that the plaintiff was a foreseeable victim in the tort sense.
Kneipp, 95 F.3d at 1209 n.22. On the other hand, the
"relationship" which is part of the "special relationship"
exception embodies a custodial element because the State
has deprived the individual of the liberty necessary to care
for himself. Id.

B. No Duty to Provide Competent Rescue Services

It is hornbook tort law that although an individual
generally has no duty to rescue, once voluntarily
undertaken, a rescue must not be performed negligently.
See Restatement (Second) of Torts SS 314, 323 (1965). One
might infer from the general rule that, although the State is
not constitutionally required to provide rescue services,
once the State undertakes a rescue, it must do so
competently as a matter of federal constitutional law. Such
an inference, however, incorrectly conflates state tort law

                                8


and federal constitutional law. The Supreme Court has
repeatedly stated that "the Due Process Clause of the
Fourteenth Amendment . . . does not transform every tort
committed by a state actor into a constitutional violation."
DeShaney, 489 U.S. at 202 (collecting cases). Although
state tort law might provide a remedy for a state’s negligent
rescue attempt, it neither logically nor legally follows that
federal constitutional law must do the same.

We have not decided whether the Due Process Clause
requires states to provide adequate or competent rescue
services when they have chosen to undertake these
services. Other appellate courts addressing this question
have held that states have no constitutional obligation to
provide competent rescue services. See Salazar v. City of
Chicago, 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."); Bradberry v. Pinellas County,
789 F.2d 1513, 1517 (11th Cir. 1986) ("The Constitution,
as opposed to local tort law, does not prohibit grossly
negligent rescue attempts nor even the grossly negligent
training of state officers."); see also Archie v. City of Racine,
847 F.2d 1211 (7th Cir. 1988) (en banc); Jackson v. City of
Joliet, 715 F.2d 1200 (7th Cir. 1983).

We too now hold that there is no federal constitutional
right to rescue services, competent or otherwise. The Due
Process Clause does not require the State to provide rescue
services, so it would be nonsensical to try to interpret that
clause to place an affirmative obligation on the State to
provide competent rescue services if it chooses to provide
those services at all. Plaintiffs might argue that because the
Fourteenth Amendment prohibits the State from depriving
him of life or liberty without due process, it follows that the
State cannot deprive him of life or liberty by its negligence.
This argument must fail, though, because the State played
no part in the act -- feeding Shacquiel the grape-- that
ultimately caused his death. The state’s negligence, if there
was any, was merely that it failed to interrupt the event
which ultimately killed him.

                                9


III.
A. Stewart and Caffey

Appellants allege that EMTs Stewart and Caffey violated
their son’s constitutional rights in that: (1) Stewart and
Caffey failed to "exercise the well-established and
universally recognized protocols for choking situations"; (2)
neither Stewart nor Caffey attempted to "reach down and
directly" remove the grape from Shacquiel’s throat; (3)
Stewart and Caffey did not arrive at the Morris residence in
a more timely manner because they could not locate
Weaver Street on the station map; (4) when Stewart and
Caffey left the station house to look for the Morris
residence, they were lost; and (5) Stewart and Caffey were
never provided "information on the neighborhood in which
they were responsible for providing emergency services,"
and they failed to familiarize themselves with the
neighborhood. Brown, 2000 WL 562743, at *1.

The District Court awarded summary judgment to
Stewart and Caffey because it concluded that Appellants’
federal suit was barred by the prior state court action,
which Appellants filed and lost. Appellants now argue that
the District Court’s application of res judicata was
incorrect. We need not decide that issue because, as we
explained above, Shacquiel Douglas had no constitutional
right to be rescued from choking on a grape, nor did he
have a constitutional right to be provided with competent
rescue services if rescue was undertaken at all. That is the
general rule of DeShaney and its progeny. Additionally,
neither of the two exceptions to DeShaney apply.

First, the "special relationship" exception does not apply.
That exception only applies "when the State takes a person
into its custody and holds him there against his will."
DeShaney, 489 U.S. at 199-200. Shacquiel Douglas was not
in the state’s custody nor was he held against his will. This
is not a case where "the State by the affirmative exercise of
its power so restrains an individual’s liberty that it renders
him unable to care for himself." Id. at 200.

Second, Appellants argue the "state-created danger"
exception applies. In an attempt to state a claim under this

                                10


theory of liability, they followed the elements of the test we
set forth in Kneipp in alleging:

       (a) [Stewart and Caffey’s] actions created foreseeable
       and fairly direct harm to the decedent and the
       plaintiffs; (b) their actions evidenced willful disregard of
       harm to the decedent and the plaintiffs; (c) a
       relationship existed between the parties; and (d) their
       actions created and/or increased a danger to the
       decedent that otherwise would not have existed.

Compl. at P 36. We need to consider only one of the Kneipp
elements to understand why Appellants’ state-created
danger claim must fail. Appellants allege that Stewart and
Caffey’s actions "created and/or increased a danger to the
decedent that otherwise would not have existed." This is
incorrect. The danger facing Shacquiel Douglas was a grape
that was stuck in his throat. Neither the Commonwealth
nor the city nor Stewart and Caffey had anything to do with
that; the danger already existed when Stewart and Caffey
arrived on the scene. Although Stewart and Caffey may
have failed to rescue Shacquiel successfully from that pre-
existing danger, we have already said that they had no
constitutional obligation to do so. We will, therefore, affirm
the District Court’s award of summary judgment to Stewart
and Caffey.

B. City of Philadelphia

Appellants also allege that the City of Philadelphia
violated Shacquiel’s constitutional rights under the"policy
or custom" theory of S 1983 municipal liability. A
municipality may be held liable if a constitutional violation
was caused by action taken pursuant to a municipal policy
or custom. Monell v. Dep’t of Soc. Servs. of the City of New
York, 436 U.S. 658, 691 (1978). But a municipality cannot
be liable solely as an employer because there is no
respondeat superior theory of municipal liability in S 1983
actions. Id. "Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under S 1983." Id. at 694.

                                11


The Supreme Court has recognized that "under certain
circumstances" a municipality may be liable underS 1983
for a failure to adequately train its police officers. City of
Canton v. Harris, 489 U.S. 378, 380 (1989). The first
question in any case alleging municipal liability for a failure
to train is "whether there is a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation." Id. at 385. Furthermore"the inadequacy of
police training may serve as the basis for S 1983 liability
only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police
come into contact." Id. at 388.

We have held it is possible for a municipality to be held
independently liable for a substantive due process violation
even in situations where none of its employees are liable.
Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994).3 In
Fagan we held "that a municipality can be liable under
section 1983 and the Fourteenth Amendment for a failure
to train its police officers with respect to high-speed
automobile chases, even if no individual officer
participating in the chase violated the Constitution." Id. at
1294. However, for there to be municipal liability, there still
must be a violation of the plaintiff ’s constitutional rights.
Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992)
(emphasizing "the separate character of the inquiry into the
question of municipal responsibility and the question
whether a constitutional violation occurred."). It is not
enough that a municipality adopted with deliberate
indifference a policy of inadequately training its officers.
_________________________________________________________________

3. We note that there is a split among the courts of appeals on this
issue. Some courts have explicitly rejected our holding in Fagan. See
Trigalet v. City of Tulsa, 239 F.3d 1150, 1154-55 (10th Cir. 2001), cert.
denied, 122 S. Ct. 40 (2001); Young v. City of Mount Ranier, 238 F.3d
567, 579 n.9 (4th Cir. 2001); Evans v. Avery, 100 F.3d 1033, 1040 (1st
Cir. 1996); Thompson v. Boggs, 33 F.3d 847, 859 n.11 (7th Cir. 1994).
One panel of this court has even questioned the panel opinion in Fagan.
See Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 n.13 (3d Cir. 1995).
But other courts have agreed with our opinion in Fagan. See Fairley v.
Luman, 281 F.3d 913 (9th Cir. 2002), petition for cert. filed, 71 U.S.L.W.
3021 (U.S. June 24, 2002) (No. 01-1882). This debate has no bearing
upon the present case, however, because we find no constitutional
violation by either the City or its employees.

                                12


There must be a "direct causal link" between the policy and
a constitutional violation. Canton, 489 U.S. at 385.

This is where Appellants’ municipal liability claim fails.
They allege that the City of Philadelphia had a number of
policies involving EMTs which were enacted with deliberate
indifference and which caused harm to them and their son.
Even if we accept everything Appellants allege as true, they
will have still failed to establish that the City’s policies
caused constitutional harm. The City was under no
constitutional obligation to provide competent rescue
services. The failure of the City and its EMTs to rescue
Shacquiel Douglas from privately-caused harm was not an
infringement of Appellants’ constitutional rights. 4 There has
been no constitutional harm alleged. There can be no
municipal liability under S 1983.

IV.

States are not constitutionally obligated to provide rescue
services to their citizens, nor are they constitutionally
required to provide competent rescue services when they
voluntarily choose to undertake this task. Because
Appellants have failed to state a violation of their federal
constitutional rights, we will affirm the order of the District
Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

4. This case is different from our recent decision in Ziccardi v. City of
Philadelphia, 288 F.3d 57 (3d Cir. 2002). The paramedics in that case
allegedly rendered the plaintiff a quadriplegic by forcefully pulling him off
the ground by his arms and throwing him over their shoulders. Id. at 59.
The allegation in Ziccardi was not that paramedics had failed to rescue
the plaintiff from a pre-existing injury--as is the allegation in the present
case--rather it was that the paramedics actually caused the injury in the
first place.
                                13
