Cappel v. Aston Twp. Fire Dep't

693 F.Supp.3d 467

Keisha CAPPEL, Alfonso Jones, the Estate of Tamika Jones v. ASTON TOWNSHIP FIRE DEPARTMENT, Township of Aston,Prospect Crozer, LLC, Prospect CCMC, LLC,Chief Michael Evans, Eoin Marshall, Aaron Kisela

CIVIL ACTION NO. 23-155

United States District Court, E.D. Pennsylvania

Filed September 19, 2023

Kirk W. Mylander, Mylander Law, Sherwood, OR, Adam M. Share, Edward S. Robson, Robson & Robson P.C., King of Prussia, PA, for Keisha Cappel, Alfonso Jones.

Kirk W. Mylander, Mylander Law, Sherwood, OR, Adam M. Share, Robson & Robson P.C., King of Prussia, PA, for The Estate of Tamika Jones.

Andrew R. Benedict, Bardsley, Benedict & Cholden, LLP, Philadelphia, PA, Robert E. Brookman, BBC Law, LLP, Philadelphia, PA, for Aston Township Fire Department, Chief Michael Evans, Eoin Marshall, Aaron Kisela.

Donald J. Brooks, Jr., Andrew John Bond, Eckert Seamans Cherin & Mellott, LLC, Philadelphia, PA, for Prospect Crozer, LLC, Prospect CCMC, LLC.

MEMORANDUM

MURPHY, District Judge

During the COVID-19 pandemic, Tamika Jones's family called 911 because Ms. Jones was struggling to breath, could not walk, and had extremely low blood-oxygen levels. According to the complaint, the EMTs who responded — concerned for their own safety — refused to treat her. They left without Ms. Jones and called off an advanced life support team that had also arrived to help her. Ms. Jones died the next day.

Ms. Jones's survivors brought this case, and it will proceed through discovery on several claims. The immediate question is whether — taking the allegations as true — Ms. Jones's constitutional rights were violated. There is no generally recognized constitutional right to emergency services. But there is something called the "state-created danger" doctrine, which essentially says that state actors might violate your constitutional rights if they do something that puts you in danger. In other words, did the EMTs act to make Ms. Jones more vulnerable to harm than if had they done nothing? We hold that they did not. The allegations fail to state a plausible claim under the Fourteenth Amendment because the EMTs did not create a danger, increase a preexistent risk of danger, or make Ms. Jones more vulnerable to some danger that did not exist prior to their acts.

Outside of the constitutional claims, the personal representative of Ms. Jones's estate (her sister) also sues under Title II of the Americans with Disabilities Act and Pennsylvania law. Her well-pleaded allegations demonstrate a plausible "regarded as" disability claim under the ADA against the municipality and its fire department. And a few of her Pennsylvania state law claims will also move to discovery.

I. Factual Allegations¹

On January 17, 2021, Alfonso Jones started to have trouble breathing. DI 50-2 ¶ 32. His family suspected he had COVID-19. See id. ¶¶ 32-34. He collapsed in his home, and his family called 911 for help. Id. ¶¶ 32, 33. The responding emergency medical technicians (EMTs), however, did not take him to the hospital. Id. ¶ 33. Instead, Keisha Cappel had to drive Mr. Jones to get treatment. Id. ¶ 34.

Five days later, Mr. Jones's daughter, Tamika Jones, developed similar symptoms. Id. ¶ 35. Ms. Cappel — this time caring for her sister — had an oximeter to measure the oxygen in Ms. Jones's blood. Id. ¶ 35. Ms. Cappel first tested the oximeter on herself and measured a 99% blood-oxygen level. Id.

Ms. Jones's blood-oxygen level was much lower — 42%. Id. Her low oxygen percentage, difficulty breathing, and struggle to walk caused Ms. Cappel to act. Id. Seeking medical guidance, Ms. Cappel called her mother-in-law, a former nurse, who told Ms. Cappel that she should call 911. Id. So Ms. Cappel called Delaware County's 911 center and explained Ms. Jones's condition. Id. ¶ 36.

A Basic Life Support (BLS) unit and Advanced Life Support (ALS) unit were deployed in response. Id. ¶ 36, 38.² On their way to Ms. Jones's house, the BLS unit — consisting of Eoin Marshall and Aaron Kisela (together, "the EMT-Bs") — "discussed" how Mr. Kisela would remain outside of the home, and how they would "pressure" Ms. Jones into "not go[ing] to the hospital regardless of her medical needs." Id. ¶ 53. The particular BLS unit normally dispatches "two career EMT-Bs," but Mr. Marshall was a new employee. Id. ¶ 38.

The BLS unit arrived at Ms. Jones's house first. Id. ¶¶ 38-39. Paramedic Brian Doherty — part of the ALS unit — arrived three minutes after. Id. ¶ 39. Mr. Marshall followed Ms. Cappel into the basement where Ms. Jones was, id. ¶ 40, while Mr. Kisela "stayed outside the front door," id. ¶ 39.

Ms. Cappel explained Ms. Jones's condition to Mr. Marshall, including her low blood-oxygen level. Id. ¶ 40. Mr. Marshall questioned whether Ms. Jones could actually have a 42% blood-oxygen level, saying it was "impossible because if it were [42%] she would be dead." Id. (alteration in original). Mr. Marshall then used his own oximeter on Ms. Jones, which showed a 35% blood-oxygen level. Id. ¶ 41. Nevertheless, he said that oximeters cannot be trusted because "they never work." Id.

Mr. Marshall did not check Ms. Jones's vital signs, id. ¶ 41, until Ms. Cappel demanded that he do so, see id. ¶ 47. Mr. Marshall listened to Ms. Jones's lungs using a stethoscope and said they sounded clear. Id. And when Ms. Cappel asked Mr. Marshall "why [Ms. Jones] was panting rapidly like a dog," Mr. Marshall replied, "[t]hat's what Covid patients look like." Id. ¶ 46.

Mr. Marshall also told Ms. Jones that he "could" take her to a hospital, but her best option was staying home because "they will just bring you back home." Id. Ms. Jones asked Mr. Marshall what he would do under the circumstances, to which Mr. Marshall responded, "I'd stay here. They are really wanting people to stay home. Your best chance is to stay here." Id. So, Ms. Jones remained in her basement.³

Mr. Marshall went back upstairs after finishing his evaluation. Id. ¶ 51. He asked Mr. Kisela — his partner and the more senior EMT-B — whether he wanted to evaluate Ms. Jones. Id. Mr. Kisela declined and said that he had "a wife and kids to think about." Id. ¶ 51.⁴ Nor did Paramedic Doherty — part of the ALS unit — evaluate Ms. Jones. Instead, Mr. Kisela instructed Paramedic Doherty to "leave the scene" after he sat outside the Jones's home for about three minutes. Id. ¶ 43. And following the evaluation, the EMT-Bs summarized their interaction with Ms. Jones in an "incident report" — writing "No Patient [was] Assessed." Id. ¶ 54.

Ms. Jones's condition worsened. The next day, Ms. Jones's family called 911 again. Id. ¶ 56. Unfortunately, this time, the first responders could not aid Ms. Jones, and she was pronounced dead. Id. ¶ 57. Her "primary cause of death was bilateral lobar pneumonia, with a secondary cause of 'probable Covid-19.' " Id. ¶ 57.

II. Motions to Dismiss

Ms. Cappel, in her individual capacity and as "the duly appointed representative of the Estate of Tamika Jones,"⁵ sued a number of parties in the wake of these tragic events. DI 50-2 ¶ 2. She claims several of them violated Ms. Jones's constitutional rights under 42 U.S.C. § 1983, as well as state law.

First, Ms. Cappel alleges that the responding EMT-Bs deprived Ms. Jones of her Fourteenth Amendment rights "by engaging in affirmative conduct that placed [Ms.] Jones in greater danger." Id. ¶ 65. Second, she asserts a Monell⁶ claim against Aston Township Fire Department (the Fire Department) and Aston Township for implementing policies, customs, or practices that violated Ms. Jones's due process rights. See id. ¶¶ 70-75. Third, she alleges that supervisors from Aston Township's Fire Committee and the Fire Department violated Ms. Jones's rights through their "aware[ness] . . . allow[ance], approv[al], and ratifi[cation]" of unconstitutional policies, customs, or practices. See id. ¶¶ 76-83.

Fourth, Ms. Cappel alleges that the Fire Department and Aston Township unlawfully discriminated against Ms. Jones under the Americans with Disabilities Act (ADA) and Rehabilitation Act. See id. ¶¶ 84-96, 97-104. Fifth, Ms. Cappel brings a host of Pennsylvania state law claims against several parties.⁷

Ms. Cappel's state law claims specifically include Prospect Crozer, LLC, and Prospect CCMC. The Prospect companies contract with Aston Township "to provide advanced life support (ALS) medics based at" the Fire Department. Id. ¶ 17. They "are involved in training BLS paramedics, as well as developing or setting policy for" the Fire Department. Id. ¶ 18. Prospect Crozer, LLC and Prospect CCMC, LLC answered Ms. Cappel's amended complaint,⁸ leaving the Fire Department⁹ and Aston Township¹⁰ as the parties requesting dismissal. See DI 34, 39.

A. The Fire Department's Motion to Dismiss

The thrust of the Fire Department's motion is that qualified immunity shields Mr. Marshall and Mr. Kisela from liability. See DI 39-1 at 3-25.

The Fire Department argues Ms. Jones has no "constitutional right" to emergency services. See id. at 4-11. It argues that neither a "special relationship" nor "state-created danger" transforms Ms. Cappel's claim of "non-feasance" into some constitutionally guaranteed, "affirmative obligation on the [s]tate" to rescue or provide for Ms. Jones. Id. at 5 (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). The Fire Department also maintains that the "novel" COVID-19 pandemic made Ms. Jones's right to emergency services far from "clearly established." Id. at 24.

Further, the Fire Department attacks Ms. Cappel's supervisory liability claim under § 1983. It argues that Ms. Cappel's claims against the department's supervisors are too "broadly stated" to support a viable cause of action. See id. at 25-26. And the Fire Department also argues that Pennsylvania's Political Subdivision Tort Claims Act (PSTCA) bars Ms. Cappel's state law causes of action. See id.¹¹

Ms. Cappel responds by enunciating "five separate physical actions" taken by...