Richard Badway v. City of Philadelphia

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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NO. 10-2149
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RICHARD BADWAY
EXECUTOR OF THE ESTATE OF RICHARD BADWAY, JR.
Appellant

v.

CITY OF PHILADELPHIA

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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 2-07-cv-01333)
District Judge: Hon. John R. Padova

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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 7, 2011

BEFORE: JORDAN, GREENAWAY, JR., and
STAPLETON, Circuit Judges

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(Opinion filed February 11, 2011 )
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OPINION OF THE COURT
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STAPLETON, Circuit Judge:

Richard Badway, Jr., collapsed at 1:00 A.M. on October 22, 2005. His

girlfriend immediately called 911 and was assured that Ahelp was on the way.@

Appellant=s Br. at 7. Tragically, help did not arrive in time to prevent his death.

The cause of death was cardiac dysrhythmia. Richard=s executor brought this

civil rights action under 42 U.S.C. ' 1983 against the City of Philadelphia,

asserting that it Aknew that its EMS custom, policy, and procedures could cause

death, and acted with deliberate indifference as to Philadelphians= right to life

guaranteed by the Fourteenth Amendment.@ Appellant=s Br. at 15. The District

Court granted summary judgment to the City, and this appeal followed.

We will affirm for the reasons set forth in the thorough opinion of the

District Court. The Due Process Clause Aforbids 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.@

DeShaney v. Winnebago Cnty. Soc. Servs. Dep=t, 489 U.S. 189, 195 (1989).

Thus, Athere is no federal constitutional right to rescue services, competent or

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otherwise@ and the Fourteenth Amendment does not Aplace an affirmative

obligation on the State to provide competent rescue services if it chooses to

provide them.@ Brown v. Pa. Dep=t of Health Emergency Med. Servs. Training

Inst., 318 F.3d 473, 478 (3d Cir. 2003). Appellant does not maintain before us

that the two exceptions to these principles B the special relationship exception

and the state-created danger exception B are applicable here.

Appellant contends that once the state undertakes to provide emergency

services B whether or not those services are constitutionally mandated in the first

place B it must do so in a way that does not cause constitutional injury. As

Appellant sees it, by inducing the public to rely on flawed emergency services,

the City is liable for the deprivation of Richard=s life. However, that is essentially

the same argument that we rejected in Brown. In that case, the plaintiffs alleged

that Athe City of Philadelphia had a number of policies involving [emergency

medical technicians] which were enacted with deliberate indifference and which

caused harm to them and their son.@ Brown, 318 F.3d at 483. We determined

that A[e]ven 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.@ Id.

(original emphasis). Though Appellant seems to argue that it was the delay in the

arrival of paramedics that caused Richard=s death and that the delay thus

amounts to an affirmative harm that resulted in the deprivation of Richard=s
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constitutionally protected right to life, Appellant has really only re-framed the

assertion made by the plaintiffs in Brown, namely that inadequate emergency

services constitute a constitutional deprivation because, if those services were

delivered properly, there would have been a different and better outcome from

the emergency in question. While we sympathize deeply with Appellant in the

untimely death of his son, Appellant has not, for the same reasons explained in

Brown, alleged Aa >direct causal link= between the policy [regarding emergency

services] and a constitutional violation.@ Id. at 482. Consequently, the judgment

of the District Court will be affirmed.

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