United States ex rel. Gittlemacker v. County of Philadelphia, No. 17393.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSTALEY, FREEDMAN and ALDISERT, Circuit
Citation413 F.2d 84
Decision Date10 July 1969
Docket NumberNo. 17393.
PartiesUNITED STATES of America ex rel. Jack and Ethel GITTLEMACKER, et al., Appellants, v. COUNTY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA; Mr. J. McAllister, Attorney at Law; Philadelphia General Hospital et al.; Williamsport Hospital, Pennsylvania et al.; Joseph R. Brierley, Superintendent State Correctional Institution, Philadelphia, Pennsylvania.

413 F.2d 84 (1969)

UNITED STATES of America ex rel. Jack and Ethel GITTLEMACKER, et al., Appellants,
v.
COUNTY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA; Mr. J. McAllister, Attorney at Law; Philadelphia General Hospital et al.; Williamsport Hospital, Pennsylvania et al.; Joseph R. Brierley, Superintendent State Correctional Institution, Philadelphia, Pennsylvania.

No. 17393.

United States Court of Appeals Third Circuit.

Argued June 10, 1969.

Decided July 10, 1969.


413 F.2d 85

Thomas J. Tumola, Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for appellants.

Matthew W. Bullock, Jr., Philadelphia, Pa. (Frank J. Pfizenmayer, Asst. City Sol.; Edward G. Bauer, Jr., City Sol., Philadelphia, Pa., on the brief), for City of Philadelphia, etc.

S. Asher Winikoff, Deputy Atty. Gen., Commonwealth of Penn., Harrisburg, Pa. (William C. Sennett, Atty. Gen., Harrisburg, Pa., on the brief), for Commonwealth of Pennsylvania.

William J. O'Brien, Philadelphia, Pa. (Pepper, Hamilton & Scheetz, Philadelphia, Pa., on the brief), for Williamsport Hospital.

Before STALEY, FREEDMAN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This is an appeal from an order of the district court which dismissed appellants' complaint on the basis that it failed to state a claim upon which relief can be granted. It was a pro se complaint requesting damages for personal injuries sustained by the wife plaintiff, allegedly caused by the failure of the various named defendants to provide essential and required medical care to her while she was a state prisoner. The district court treated the action as one brought under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983 and, upon consideration of motions made by certain of the defendants, entered an order of dismissal.

It becomes necessary, therefore, to examine the pleadings to determine whether, in the context of the Civil Rights Act, it was appropriate to dismiss

413 F.2d 86
the complaint in favor of all the named defendants

Because the County of Philadelphia, by virtue of the City-County Consolidation Amendment to the Pennsylvania Constitution, is merged into the city, we have the threshold question to meet: is the city a "person" under the Civil Rights Act's provisions that "Every person who * * * subjects * * * any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable * *." This issue was directly answered by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that a municipality was not such a "person" contemplated by the Civil Rights Act of 1871.1 Accordingly, there can be no claim upon which relief can be granted under the Civil Rights Act of 1871 against a municipality. Similarly, because Philadelphia General Hospital is a city-owned institution which operates as part of city government (Philadelphia Home Rule Charter, § 3-100(f), § 3-903) it stands on the same footing as the municipal defendant. We conclude it was appropriate to dismiss the action against these two defendants.

The same may also be said of the commonwealth of Pennsylvania. The doctrine of Monroe has been extended to the states in their capacities as parties defendant in such cases.2 On this basis, the action was properly dismissed against the defendant Commonwealth of Pennsylvania. We hasten to add, however, that although we concur in the action of the court below in dismissing the complaint against this defendant, we do not condone the failure of this defendant to file appropriate pleadings. The trial court was careful to extend a broad overview to the subject matter of the plaintiffs' complaint because of its pro se format;3 it

413 F.2d 87
was equally generous to treat the Commonwealth of Pennsylvania as if it had filed a motion to dismiss as had the other defendants. That this failure to comply with basic and fundamental rules of procedure has not operated adversely to this defendant is no indication that such inexcusable dereliction will find acceptance in the future.4

Regarding the claim against the Williamsport Hospital, an examination of the specific averment against the hospital indicates that it sounds in negligence only;5 it rises no higher than an averment of a tort alleging medical malpractice. In Kent v. Prasse, 385 F.2d 406 (3 Cir. 1967) we held that a tort committed by a state official acting under color of law is not, in and of itself, sufficient to show an invasion of a person's rights under the Act. In Com. of Pa. ex rel. Gatewood v. Hendrick, 368 F.2d 179 (3 Cir. 1966), cert. den. Gatewood v. Hendrick, 386 U.S. 925, 87 S.Ct. 899, 17 L.Ed.2d 797 (1967), we ruled that alleged improper medical treatment by prison authorities is not a denial of rights secured by the federal Constitution Consequently, we conclude that Williamsport Hospital's motion to dismiss was properly granted.

The two remaining parties named as defendants in the proceeding below are individuals. At oral argument, however, we granted appellants' motion that they be removed as parties, and accordingly we have dismissed the appeal as to J. McAllister and Joseph R. Brierley, Superintendent State Correctional Institution, Philadelphia.

One last point remains. Assuming a new posture, the appellants urge that it was error for the lower court to view the action solely as a proceeding under...

To continue reading

Request your trial
146 practice notes
  • Landsman & Funk Pc v. Skinder–strauss Associates, Nos. 09–3532
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 4 Abril 2011
    ...Sill, 49 U.S. 441, 448–49, 8 How. 441, 12 L.Ed. 1147 (1850); [640 F.3d 104] United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 88 (3d Cir.1969). That fundament of our jurisdiction rings as true today at it did in 1799, when the Supreme Court held that “[a] circuit co......
  • Padgett v. Stein, No. 72-487 Civil.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 16 Diciembre 1975
    ...v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; United States ex rel. Gittlemacker v. County of Philadelphia, 3 Cir. 1969, 413 F.2d 84, cert. denied, 1970, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691. Bykofsky v. Borough of Middletown, M.D.Pa.1975, 389 F.Supp. 836, 5 Each floor of......
  • Monell v. Department of Social Services of City of New York, No. 407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 8 Marzo 1976
    ...Page 263 Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2 Cir. 1970); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3 Cir. 1969); Williford v. California, 352 F.2d 474, 476 (9 Cir. 1965). By like token, a department of such government is not a "person",......
  • Muzquiz v. City of San Antonio, No. 74-3177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 8 Octubre 1975
    ...493 F.2d 586 (CA5), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974); U. S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (CA3, 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); U. S. ex rel. Lee v. Illinois, 343 F.2d 120 (CA7, 1965); Will......
  • Request a trial to view additional results
146 cases
  • Landsman & Funk Pc v. Skinder–strauss Associates, Nos. 09–3532
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 4 Abril 2011
    ...Sill, 49 U.S. 441, 448–49, 8 How. 441, 12 L.Ed. 1147 (1850); [640 F.3d 104] United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 88 (3d Cir.1969). That fundament of our jurisdiction rings as true today at it did in 1799, when the Supreme Court held that “[a] circuit co......
  • Padgett v. Stein, No. 72-487 Civil.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 16 Diciembre 1975
    ...v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; United States ex rel. Gittlemacker v. County of Philadelphia, 3 Cir. 1969, 413 F.2d 84, cert. denied, 1970, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691. Bykofsky v. Borough of Middletown, M.D.Pa.1975, 389 F.Supp. 836, 5 Each floor of......
  • Monell v. Department of Social Services of City of New York, No. 407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 8 Marzo 1976
    ...Page 263 Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2 Cir. 1970); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3 Cir. 1969); Williford v. California, 352 F.2d 474, 476 (9 Cir. 1965). By like token, a department of such government is not a "person",......
  • Muzquiz v. City of San Antonio, No. 74-3177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 8 Octubre 1975
    ...493 F.2d 586 (CA5), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974); U. S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (CA3, 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); U. S. ex rel. Lee v. Illinois, 343 F.2d 120 (CA7, 1965); Will......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT