DiJoseph v. City of Philadelphia

• Decision Date: 31 January 1997
• Docket Number: Civil Action No. 95-1803.
• Citation: 953 F.Supp. 602
• Parties: Andrew DiJOSEPH, et al., Plaintiffs, v. CITY OF PHILADELPHIA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 602

953 F.Supp. 602

Andrew DiJOSEPH, et al., Plaintiffs, v. CITY OF PHILADELPHIA, et al., Defendants.

Civil Action No. 95-1803.

United States District Court, E.D. Pennsylvania.

January 31, 1997.

Armando A. Pandola, Jr., Philadelphia, PA, for Andrew DiJoseph, Barbara DiJoseph.

Jeffrey M. Scott, Assistant City Solicitor, Philadelphia, PA, for City of Philadelphia, Richard Neal, Carmen Vuotto, Deborah Mattiacci, George Hairston.

MEMORANDUM

ANITA B. BRODY, District Judge.

Plaintiff Andrew DiJoseph ("DiJoseph") brings this motion for reconsideration ("Motion for Reconsideration") of the judgment I entered in favor of defendant police officers Deborah Mattiacci and George Hairston, Philadelphia Police Commissioner Richard Neal, and the City of Philadelphia in DiJoseph v. City of Philadelphia, 947 F.Supp. 834 (E.D.Pa.1996), 1996 WL 691534 (No. 95-1803, Oct. 22, 1996) (DiJoseph I).¹ DiJoseph alleges that Officers Mattiacci and Hairston violated his Fourteenth Amendment substantive due process rights under the state-created danger doctrine by failing to take the necessary action to properly secure him. In DiJoseph I, I granted qualified immunity to Officers Mattiacci and Hairston because I found that the state-created danger doctrine was not clearly established law at the time the incidents in question occurred. Because I granted the officers qualified immunity, I did not reach the merits of DiJoseph's state-created danger claim in DiJoseph I. DiJoseph now urges me to reconsider my ruling of qualified immunity in light of case law that predates the shooting of DiJoseph that references and/or applies the state-created danger doctrine. Because upon closer examination I now conclude that the state-created danger doctrine was clearly established in the Third Circuit at the time DiJoseph was shot, I must address for the first time the viability of DiJoseph's state-created danger claim as it pertains to Officers Mattiacci and Hairston. In addition, DiJoseph requests that I reconsider liability for Officers Mattiacci and Hairston because he claims they allowed him to be called a "barricaded man," even though they knew, in fact, that he was not.²

DiJoseph also requests me to reconsider summary judgment I granted in favor of Police Commissioner Neal and the City of Philadelphia. DiJoseph contends that City policy does not differentiate between the treatment of barricaded persons and mentally disturbed individuals.³ Because he was not a criminal, had not threatened anyone, and had not harmed anyone, DiJoseph claims that treating him as a barricaded person indicates that the City has adopted an unconstitutional policy or practice whereby noncriminals are treated as criminals; that is, mentally disturbed individuals are treated as barricaded persons. This policy, he asserts, facilitated this unfortunate shooting and denied DiJoseph of his substantive due process right of liberty. DiJoseph therefore maintains that Commissioner Neal and the City of Philadelphia should be held liable because of the inadequacy of the City's policies concerning emotionally disturbed individuals.⁴

Upon consideration of the parties' submissions, I will grant plaintiff's Motion for Reconsideration. I will also grant summary judgment with respect to Officers Mattiacci and Hairston because I conclude that DiJoseph has failed to establish a state-created danger claim against them. Furthermore, I will grant summary judgment with respect to Commissioner Neal because DiJoseph fails to demonstrate Neal's personal involvement with the actions that give rise to this action. Finally, I will also grant summary judgment with respect to the City of Philadelphia because DiJoseph has failed to state a claim under § 1983 against it.

As the facts of this case are set forth fully in DiJoseph I, I will recite only the facts relevant to this motion here.

I. Facts

On September 22, 1993, Officers Deborah Mattiacci and George Hairston of the Philadelphia Police Department responded to a radio report of a burglary at 6524 Dorel Street, Philadelphia, DiJoseph's residence. Dep. Deborah Mattiacci at 10. When the officers arrived, DiJoseph met them and had a gun in his possession. Dep. George Hairston at 13. Officer Hairston disarmed DiJoseph. Id. Although DiJoseph claimed that someone had attempted to break into his home, the officers found no such evidence. Id. Concerned about DiJoseph's anxious behavior, Officer Hairston telephoned Barbara DiJoseph, DiJoseph's Wife, at work regarding the sensibility of DiJoseph having a gun in his possession. Id. at 14. Ms. DiJoseph told the officers that it was safe for her husband to possess a gun despite his behavior and that her husband had a permit for the gun. Id. at 18. Ms. DiJoseph also advised the officers that DiJoseph suffered from psychological problems, was on medication⁵ and in therapy, and that he had been carjacked approximately one week before and that he had been acting more paranoid ever since. Barbara DiJoseph Aff. ¶ 2. Although the officers returned the gun to DiJoseph before leaving, they nevertheless visited Ms. DiJoseph at her workplace to further discuss further her husband's anxious behavior. Dep. George Hairston at 19.

Shortly after speaking to Ms. DiJoseph in person, Officers Mattiacci and Hairston received a police radio call of a man holding hostages at the DiJoseph's residence. Id. at 21-22. Officer Hairston called for a supervisor to assist them on the scene, id. at 24, and shortly thereafter, Lt. Anthony Guidice, a supervisor, arrived.⁶ Id. at 24. Based upon DiJoseph's "irrational" behavior, Lt. Guidice declared DiJoseph to be a "barricaded man."⁷ Dep. Anthony Guidice at 23. Ultimately, DiJoseph was shot by a police officer, Carmen Vuotto, and he contends, inter alia, that the City of Philadelphia Police Department's unconstitutional policies regarding the treatment of mentally disturbed individuals as barricaded persons is responsible for his injuries.

II. Discussion

DiJoseph requests reconsideration of summary judgment in favor of Officers Mattiacci and Hairston for violating his Fourteenth Amendment substantive due process rights under the state-created danger theory for giving the handgun back to DiJoseph and failing to take him into custody for an immediate mental evaluation. In addition, DiJoseph requests reconsideration of the judgment in favor of Officers Mattiacci and Hairston on the grounds that they affirmatively allowed him to be declared a barricaded man, even though they allegedly knew that he was not. Moreover, DiJoseph requests reconsideration of the judgment in favor of Police Commissioner Neal and the City of Philadelphia on the basis that the City has adopted an unconstitutional policy or practice by treating emotionally disturbed individuals as barricaded persons.

I will deal with each claim in turn.

A. State-Created Danger

DiJoseph claims that Officers Mattiacci and Hairston violated his Fourteenth Amendment substantive due process rights under the state-created danger doctrine when they returned his gun to him despite obvious indications that he was emotionally disturbed. Because the officers failed to properly secure him by taking the handgun away from him and taking him into custody for a mental evaluation, DiJoseph asserts that they increased his risk of harm. While I held in DiJoseph I that Officers Mattiacci and Hairston were entitled to qualified immunity on summary judgment, DiJoseph contends that they are not entitled to qualified immunity because the state-created danger theory of liability was clearly established on September 22, 1993, the date DiJoseph was shot. I will first review my former conclusion that the state-created danger doctrine was not clearly established at the time of this incident. Because upon closer inspection I determine that it was clearly established, I will then examine for the first time whether DiJoseph has sufficiently established a prima facie violation of the state-created danger doctrine to withstand defendants' Motion for Summary Judgment.

The state-created danger doctrine was triggered by DeShaney v. Winnebago Co. Dep't of Social Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).⁸ In DeShaney, the Court considered whether the Fourteenth Amendment substantive due process clause imposed an affirmative duty upon a state to protect a child from his abusive father while within his father's custody. While holding that no affirmative duty existed, the Court acknowledged that:

While 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.

Id. at 201, 109 S.Ct. at 1006. Thus, as courts have interpreted this statement, state-created danger exists "`[w]hen state actors knowingly place a person in danger, the due process clause of the constitution ... render[s] them accountable for the foreseeable injuries that result from their conduct.'" Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995) (quoting Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 199 (5th Cir.), cert. denied ___ U.S. ___, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995)). To be liable under the state-created danger doctrine, the state actor must have created the danger to the plaintiff, increased the plaintiff's risk of harm, or made the plaintiff more vulnerable to the harm. Kneipp v. Tedder, 95 F.3d 1199, 1207 (3d Cir.1996). As Judge Richard A. Posner of the Seventh Circuit states, "If the state puts a man in a position of danger ... and then fails to protect him, it will not be heard to say that its role was merely passive." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982).

The Third Circuit formally adopted the state-created danger theory as a viable mechanism for establishing constitutional violations under 42 U.S.C. § 1983 in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1...