McCurdy v. Dodd, Civil Action No: 99-CV-5742 (E.D. Pa. 2/28/2000)

• Decision Date: 28 February 2000
• Docket Number: Civil Action No: 99-CV-5742.
• Parties: BOBBY McCURDY Plaintiff, v. KIRK DODD, CHRISTOPHER DIPASQUALE, JOHN MOUZON, BADGE NO. 5293, DAVE THOMAS, SCOTT WALLACE, THE CITY OF PHILADELPHIA, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

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BOBBY McCURDY Plaintiff, v. KIRK DODD, CHRISTOPHER DIPASQUALE, JOHN MOUZON, BADGE NO. 5293, DAVE THOMAS, SCOTT WALLACE, THE CITY OF PHILADELPHIA, Defendants.

Civil Action No: 99-CV-5742.

United States District Court, E.D. Pennsylvania.

February 28, 2000.

MEMORANDUM and ORDER

CLIFFORD SCOTT GREEN, Senior Judge.

Presently before the Court is Defendants' Motion to Dismiss the Plaintiff's Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), and the Plaintiff's response thereto. For the foregoing reasons, the Motion will be granted in part and denied in part.

FACTUAL AND PROCEDURAL HISTORY

On October 1, 1998, Philadelphia Police Officer Christopher DiPasquale shot and fatally wounded Donta Dawson. The Philadelphia County Register of Wills subsequently appointed Cynthia Dawson, the natural mother of Donta Dawson, as the sole administratrix of Donta Dawson's estate. Cynthia Dawson then commenced a civil action, individually and as administratrix of Donta Dawson's estate, against Kirk Dodd, Christopher DiPasquale, John Mouzon, Dave Thomas, Scott Wallace and The City of Philadelphia. In her civil action, Ms. Dawson set forth claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1988, for deprivation of the decedent's civil rights, 42 U.S.C. § 1983 for deprivation of her liberty interest in parenthood, and the Pennsylvania Survival and Wrongful Death statutes for pecuniary losses associated with Donta Dawson's death.

On August 10, 1999, Cynthia Dawson and the above-named defendants filed a petition for leave to settle or compromise the civil action. I subsequently entered an order approving the settlement amount and distribution of payment of costs and attorneys' fees, but denied the petition to determine distribution between heirs without prejudice to Cynthia Dawson applying to the appropriate state court for approval of the distribution of settlement proceeds. Cynthia Dawson then filed a petition to approve distribution of the settlement proceeds between heirs in the Court of Common Pleas for Philadelphia County. That petition is currently pending before the state court.

On October 26, 1999, Bobby McCurdy, the alleged natural father of Donta Dawson, filed this civil action in the Court of Common Pleas of Philadelphia County, asserting civil rights claims against the above-named defendants, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988. The named Defendants removed the action to federal court and then filed this motion to dismiss Plaintiff McCurdy's claims pursuant to Fed.R.Civ.P. 12(b)(6).

STANDARD OF REVIEW

A court deciding a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), must draw all reasonable inferences in favor of the nonmoving party and must dismiss the cause of action only if it is clear that no relief could be granted under any set of facts consistent with the allegations of the complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984).

III. DISCUSSION

Whether Plaintiff McCurdy may maintain a cause of action against the named defendants on behalf of the Decedent Donta Dawson under 42 U.S.C. § 1983. In Counts I, II, and III of his Complaint, Plaintiff McCurdy attempts to bring a cause of action, pursuant to 42 U.S.C. § 1983, for the violation of the decedent, Donta Dawson's civil rights. Defendants move to dismiss these claims, arguing, inter alia, that federal law does not provide for the survival of section 1983 claims brought on behalf of Donta Dawson after his death. (Defs.'s M. to Dismiss at 4). Defendants further argue that to the extent that decedent Donta Dawson's civil rights claims may be brought pursuant to 42 U.S.C. § 1988, Plaintiff McCurdy is not the proper plaintiff to assert these claims. Id. at 6.

The language set forth in 42 U.S.C. § 1983 does not specifically address whether claims brought pursuant to the statute survive the death of the party seeking damages for injury. See Moor v. County of Almeeda, 411 U.S. 693, 702, n. 14, 93 S.Ct. 1785, 1792 (1973). However, 42 U.S.C. § 1988 provides that the federal courts' jurisdiction to decide a section 1983 suit will be governed by applicable state law when there is no controlling federal law on a particular point. See 42 U.S.C. § 1988. In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991 (1978), the Supreme Court applied section 1988 and held that in the absence of any federal law controlling the survival of section 1983 suits, the question of whether a section 1983 claim survives the death of a plaintiff is governed by the local state's survival statute, so long as that statute is "not inconsistent with the Constitution and laws of the United States." Id. at 588-90, 98 S.Ct. at 1994. Therefore, to determine whether Plaintiff McCurdy may bring his section 1983 claims on behalf of the decedent Donta Dawson, I will look to the Pennsylvania survival statutes.¹

Pursuant to Pennsylvania's survivorship statute, "all causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants." 42 Pa.C.S.A. 8302. In applying 42 Pa.C.S.A. 8302, the Pennsylvania Supreme Court has determined that the proper plaintiff to assert claims under the statute is the decedent's administrator. See Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1998). In the instant case, Plaintiff McCurdy is seeking to recover damages for claims brought on behalf of the decedent Donta Dawson, pursuant to 42 U.S.C. § 1983. Therefore, he must adhere to the requirements set forth in the Pennsylvania survival statute. Since Plaintiff McCurdy is not the administrator of Donta Dawson's estate, he is not the proper plaintiff to assert the decedent's section 1983 claims. Therefore, Counts I, II and III of the Plaintiff's Complaint must be dismissed.²

Whether Plaintiff McCurdy may maintain a Section 1983 action for Loss of Familial Companionship.

In Count IV of Plaintiff McCurdy's Complaint, he asserts a section 1983 claim, in his own right, alleging that the defendants' treatment of Donta Dawson deprived him of his liberty interest in the companionship of his child. (Pl.'s Compl. at 85-87). Here, Plaintiff McCurdy does not seek to recover damages for injuries suffered by Donta Dawson; rather, he seeks recovery for his own constitutional injuries stemming from Donta Dawson's death. The question that arises in connection with Count IV of the plaintiff's complaint, therefore, is whether a parent may maintain a section 1983 loss of companionship claim relating to the defendants' treatment of his adult child. Our Court of Appeals has held that a parent whose child has died as a result of unlawful state action may, in certain circumstances, maintain an action under section 1983 for the deprivation of his liberty interest in parenthood. See Estate of Bailey v. County of York, 768 F.2d 503, 509, n. 7 (3d Cir. 1985).³ Therefore, instead of precluding Plaintiff McCurdy, the alleged natural father of the decedent Donta Dawson, from bringing an action for loss of companionship of his adult child at this stage of the litigation, I will deny ...