APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 99-cv-04901) District Judge: The Honorable Herbert J. Hutton
Before: Nygaard, Ambro and Kravitch, Circuit Judges
The opinion of the court was delivered by: Nygaard, Circuit Judge.
Sur Panel Rehearing Submitted September 12, 2002
We vacated our prior opinion in this appeal and granted panel rehearing to clarify certain issues raised by the Appellants in their petition for en banc reconsideration.
Appellants, Charmaine Brown and Oral Douglas, filed a civil rights complaint against the Commonwealth of Pennsylvania Department of Health, the City of Philadelphia and two emergency medical technicians, Mark Stewart and John Caffey. Litigation arose out of the tragic death of Appellants' one-year-old son. The District Court granted summary judgment for the City because there was no genuine issue of material fact and concluded that deliberate indifference by city policymakers had not been demonstrated. The District Court also granted summary judgment for Stewart and Caffey because it concluded that the Appellants' federal claim was barred by a prior state judgment. We will affirm, although for different reasons than given by the District Court.
Shacquiel Douglas, the one-year-old son of Charmaine Brown and Oral Douglas, was at the residence of Angela Morris, his maternal aunt. While there, Shacquiel choked on a grape. Morris dialed "911" at 11:06:22 a.m. and informed the operator that her nephew was choking on a grape. The 911 operator called Appellees Mark Stewart and John Caffey, who were emergency medical technicians at Engine 73, Fire House at 76th Street and Ogontz Avenue in Philadelphia. The operator then informed Morris that "[r]escue is gonna come help you." At 11:10:24 a.m., Morris again called 911 to determine when the EMTs would arrive. Morris was informed that "[r]escue was on the way." At 11:14:50 a.m., when the EMTs still had not arrived, Morris placed a third call to the 911 operator and was again told that help was on the way.
Stewart and Caffey arrived at Morris's residence at 11:16:35 a.m., ten minutes after the initial 911 call had been placed. They transported Shacquiel to Germantown Hospital and tried to restore Shacquiel's breathing during the trip. Once at the hospital, the grape was removed from Shacquiel's throat. He was then transferred to St. Christopher's Hospital for Children where he died two days later due to "asphyxia by choking."
Appellants filed a civil complaint in the Court of Common Pleas of Philadelphia County against Stewart and Caffey alleging a state tort cause of action based on the same facts as their federal claim. The Court of Common Pleas granted Stewart and Caffey's motion for summary judgment and dismissed all claims against them.
Appellants, in their individual capacities and as administrators of Shacquiel's estate, next filed a civil rights lawsuit in federal court under 42 U.S.C. 1983 against the City of Philadelphia, and Stewart and Caffey in their individual and official capacities. Count I of the Complaint asserts a 1983 claim against Stewart and Caffey for alleged violations of their son's life, liberty, personal security, and bodily integrity without due process of law in violation of the Fourteenth Amendment and for deprivation of their son's rights, privileges, and immunities secured by the laws and Constitution of the Commonwealth of Pennsylvania. Count II asserts a 1983 claim against the City for violations of the Commonwealth Constitution and the Fourth and Fourteenth Amendments. The claims arising under the Commonwealth Constitution and the Fourth Amendment were dismissed, so only the Fourteenth Amendment claim remained.
The District Court granted the City of Philadelphia's motion for summary judgment because it found that Appellants had failed to raise a genuine issue of material fact and because Appellants had not shown "deliberate indifference" by City policymakers. Brown v. City of Philadelphia, No. Civ.A. 99-4901, 2001 WL 884555, at *6 (E.D. Pa. July 31, 2001). The District Court also granted Stewart and Caffey's motion for summary judgment because it concluded that Appellants' federal lawsuit against Stewart and Caffey was barred under ...