Dudosh v. Warg, Civ. A. No. 85-4066.
Citation | 668 F. Supp. 944 |
Decision Date | 06 August 1987 |
Docket Number | Civ. A. No. 85-4066. |
Parties | Edward DUDOSH, Administrator of the Estate of Kathleen Dudosh v. Daniel WARG; Dean Schwartz; and the City of Allentown |
Court | U.S. District Court — Eastern District of Pennsylvania |
Richard Makoul, Richard Orlosky, Allentown, Pa., for plaintiff.
Robert G. Hanna, Jr., Philadelphia, Pa., for defendants.
On May 18, 1987, we granted in part and denied in part the defendants' motion for summary judgment, 665 F.Supp. 381. Both the plaintiff and the defendants have moved for reconsideration of that Order, the plaintiff asserting that we erred in granting the defendants partial summary judgment and the defendants contending that we erred in failing to grant their motion in its entirety. The plaintiff has also requested, if we deny its Motion For Reconsideration, that we certify for appeal pursuant to 28 U.S.C.A. § 1292(b) (West Supp. 1987) that portion of our Order granting the defendants partial summary judgment. In response, the defendants request, if we deny their Motion For Reconsideration, that we also certify for appeal, if we grant the plaintiff's Motion For Certification, that portion of our Order denying them summary judgment. Our Memorandum and Order of May 18 speak for themselves, and we see no need for a lengthy review of the basis for and effect of our decision. Stated succinctly as possible, we granted both the individual defendants and the municipal defendant summary judgment as to the plaintiff's Fourteenth Amendment due process claim on the ground, inter alia, that the defendants possessed no constitutional duty to provide the decedent with police protection, adequate or otherwise, and therefore, their failure to provide her with such protection could in no way have constituted a violation of her substantive due process rights under the Fourteenth Amendment. We denied the defendants summary judgment on the plaintiff's Fourteenth Amendment equal protection claim on the ground that we could not say that a reasonable jury could not conclude on the basis of the evidence of record that the individual defendants unlawfully discriminated against the decedent, either on the basis of her sex or the nature of the complaint she filed, in the manner in which they handled her request for assistance.1
We also granted in part and denied in part the municipal defendant's motion for summary judgment as to the claims asserted against it in the context of the plaintiff's equal protection claim.2 Here, the plaintiff asserted two theories of liability against the City: a "custom" theory and a "failure to train" theory. We denied the City summary judgment as to the "custom" theory on the ground that there was enough evidence of record upon which a jury could find that the City had, through its silence and/or acquiescence, adopted a policy or custom of discriminating against women and/or those who filed domestic complaints in the manner in which they handled requests for assistnace from such individuals. We granted the City summary judgment as to the plaintiffs "failure to train" theory on the ground that the plaintiff had failed to adduce sufficient evidence upon which a jury could reasonably conclude that the City had inadequately trained its police officers such that it could be said that its failure to train constituted a reckless disregard for or deliberate indifference to the constitutional right of its citizens to equal protection of the law.
The plaintiff asserts that we committed a variety of factual errors in our decision. As noted in our earlier opinion, however, we are not permitted in the context of resolving a summary judgment motion to engage in the "finding" of facts. We may not draw our own inferences from the record, but rather, must draw all reasonable inferences from the evidence of record in favor of the nonmoving party.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted in favor of the moving party only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." (Emphasis added.) In applying this standard, we engage ourselves in a three step analysis. The first step is to examine the record and determine whether there are any genuine issues of fact. If so, all reasonable inferences must be drawn in favor of the nonmoving party. The second step is to determine whether the disputed issues of fact are material, i.e., do they have an effect upon our decision as to whether the moving party is entitled to judgment as a matter of law. If such disputed issues of fact are not material, they present no impediment to the entry of summary judgment. The third and final step in our analysis is to take the proper facts of record, and apply them to the relevant statutory or case law.
Here, the plaintiff first states that we erred in "finding" that the Allentown Police Department did not know of Miller's assault upon the decedent which allegedly required her hospitalization and that the Department did not know that Miller had assaulted the decedent while she was hospitalized. The plaintiff also claims that we erred in our statement of the "undisputed" facts of this case as to certain aspects surrounding the decedent's "hospitalization". The plaintiff is to an extent correct.
In our prior decision, we stated as follows:
Dudosh v. City of Allentown, et al., 665 F.Supp. 381, 384 (E.D.Pa.1987).
At the time we issued our decision, we were not cognizant of the fact that the decedent's petition for the PFA Order, as well as the Order itself, had been served upon the Allentown Police Department. (See Plaintiff's Brief in Opposition to Defendant's Motion For Summary Judgment, Doc. # 16, Ex. "D", ¶ E)3 Thus, we must deem the individual defendants, as well as the municipal defendant, to have been aware of the allegations contained in the decedent's petition for the PFA Order.
As to our statements regarding the decedent's hospitalization, we also erred in our statement that the decedent was discharged from the hospital July 19, 1984, only one day after she had been admitted. According to the plaintiff, the hospital records clearly indicate that the decedent was admitted to the hospital on July 19, 1984, and discharged on July 27, 1984. This is also in error. The "admission form" pertaining to the decedent, as reproduced by plaintiff's counsel, indicates that the decedent was admitted to the hospital on July 18, 1984. (Plaintiff's Motion For Reconsideration, Doc. # 19, Ex. "B".) It is true that the plaintiff was not discharged from the hospital until July 27, 1984. (Id. at "Discharge Summary".)4
We find no error, however, in our statement that "nowhere do the hospital records refer to any physical injuries which required that she be hospitalized." Dudosh v. City of Allentown, et al., 665 F.Supp. at 384 (Emphasis added.) According to plaintiff's counsel, "The records indicate that Decedent was admitted to the hospital after being referred there by Crisis Prevention due to the fact that Miller had beaten Decedent over a period of days immediately after his discharge from the state hospital." (Plaintiff's Brief In Support Of Motion For Reconsideration, Doc. # 19, p. 4.) It does not follow from this, however, that the decedent was hospitalized because of physical injuries she received at the hands of Miller.
The hospital "progress record" does indeed describe contusions, abrasions and rashes over various parts of the decedent's body at the time of her admission. The same hospital records, though, indicate that the decedent's "admitting diagnosis" was a "depressive disorder". As stated in our prior opinion, the only inference which may be drawn from the records is that the decedent was admitted to the hospital because of an emotional disturbance, albeit apparently caused by Miller's conduct, and not because of any physical condition. Plaintiff's counsel's continued assertions to the contrary are disingenuous and incredulous.5
The plaintiff next asserts that we erred in our statement that neither of the individual defendants heard any of the conversation which occurred...
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