Charmaine Brown, et al. v. Commonwealth of Pennsylvania Department of Health Emergency Services Training Institute, et al.

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
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
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).

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
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.

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
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
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
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.

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
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.

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.

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.

* * *

Click the case caption above for the full
text of the Court's opinion.

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.

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