PHILADELPHIA – A pair of Philadelphia Fire Department EMT’s are seeking to dismiss a willful misconduct claim, from the lawsuit brought by the estate of a Massachusetts man who died after suffering an opiate overdose.
Jonathon O. Dowd (as Father and Administrator of the Estate of Jonathon B. Dowd, deceased) of Pocasset, Mass. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 28 versus the City of Philadelphia and Philadelphia Police Department Officers 1-3.
At the time of his death, Jonathon B. Dowd was 28 years old and a resident of Biddeford, Me.
“Dowd arrived in Philadelphia by train on the afternoon of Feb. 12, 2020. Dowd worked for Kimball and Sons Tree Services, a corporation registered in Maine, that had a contract to remove trees in Pennsylvania,” the suit stated.
“Joshua Shumaker, a coworker of Dowd’s at Kimball and Sons Tree Services, met Dowd at the 30th Street Station in Philadelphia. He intended to drive Dowd to their shared hotel room.”
Prior to arriving at their hotel, Dowd requested that Shumaker take him to get something to eat and the two young men decided to go to a local Chinese food restaurant.
Upon arriving at the Chinese food restaurant, Dowd went into the establishment alone and remained there for some time before returning to Shumaker’s vehicle. Soon thereafter, Shumaker recognized that Dowd was in distress and that he may be experiencing an opioid overdose.
As Shumaker was not from Philadelphia and did not know where the nearest hospital was located, he proceeded to a Rite Aid pharmacy on North Broad Street, where he explained the situation to a pharmacist on site – who then called 911 and also administered Naloxone, a medicine used to reverse the effects of an opiate overdose, to Dowd.
Upon receiving the Naloxone, the suit says Dowd became “disoriented and agitated.” Dowd was 5’10” tall and weighed 151 pounds, the suit said.
“At approximately 5:20 pm, police officers arrived at the scene. Dowd was lying on the ground at the time Defendant Officer 1, Defendant Officer 2, and Defendant Officer 3 arrived. Upon seeing defendant officers’ vehicle lights, Dowd stood up and started to speak mostly unintelligible words. Defendant Officer 1 shouted directions at Dowd. Dowd approached Defendant Officer 1,” the suit stated.
“When Dowd approached defendant officers, Officer 1 grabbed Dowd by the back of the head and slammed Dowd’s head into a nearby vehicle. Officer 1 then threw Dowd to the pavement face-first. An unknown individual that previously served as a Philadelphia Police Officer happened to be at the Rite Aid at the time, and intervened to assist Officer 1 by holding Dowd in a prone position and into the pavement. Officer 2 also intervened to hold Dowd down. Officer 3 intervened to hold Dowd’s feet.”
According to the suit, Defendant Officer 2 or Defendant Officer 3 put Dowd into handcuffs. While handcuffed and lying prone on the ground, Dowd yelled to defendant officers that he could not breathe and pleaded “Help me, daddy.”
Officer 1 responded by viciously punching Dowd in the face and head four times with a closed fist.
Around this time, a team from the Philadelphia Fire Department arrived on the scene with an ambulance. Defendant officers placed Dowd prone on a gurney and moved him into the ambulance.
The ambulance left the scene and traveled to Albert Einstein Medical Center in Philadelphia. On the way to Albert Einstein Medical Center, Dowd went unconscious. A paramedic turned Dowd into a supine position and administered CPR. Though paramedics attempted to resuscitate Dowd, their efforts were in vain and he remained unresponsive.
“Dowd died in the ambulance on his way to Albert Einstein Medical Center. Dowd was pronounced dead by Dr. Shawn Sethi in the Albert Einstein Medical Center’s Emergency Room at 5:58 pm. The cause of death was blunt force trauma to the face and head,” per the suit.
“Defendant City has provided some training to some officers on the use and likely effects of Naloxone. It has not provided such training to all police officers, including defendant officers. Defendant officers continue to work for Defendant City and have not received any formal discipline for the incident.”
The City filed an answer to the complaint on July 1, denying the complaint’s charges in their entirety and putting forth seven affirmative defenses.
After an amended complaint was filed on July 14, defendant officers Daniel Mitchell and Lindsay Moore filed an answer to it on Sept. 23. In addition to denying the plaintiff’s charges, the officers asserted eight separate affirmative defenses.
Defendants Simon Chernov and Bernard Baker filed an answer to the complaint on Oct. 4, also asserting qualified immunity in protecting their actions in responding to the events in question.
“Answering defendants’ conduct did not shock the conscience. Plaintiff’s claims are barred by collateral estoppel, res judicata, and/or judicial estoppel. Plaintiff’s claims are barred and/or limited by the applicable period of the statute of limitations. Plaintiff’s complaint fails to state a cause of action upon which relief may be granted. Plaintiff has failed to mitigate his damages,” the answer stated, in part.
“Plaintiff’s claims for punitive damages should be dismissed. Answering defendants are entitled to qualified immunity. At all relevant times, answering defendants acted in an objectively reasonable manner. Merely negligent or careless conduct on the part of answering defendants fails to support a cause of action under 42 U.S.C. Section 1983. The conduct of answering defendant was carried out in good faith and without malice.”
The answer’s affirmative defenses contended that the plaintiff’s claims “are barred and/or limited by the provisions of the Pennsylvania Comparative Negligence Act and the contributory negligence of plaintiff.”
“Plaintiff’s claims are barred and/or limited by the doctrine of assumption of the risk and by the Political Subdivision Tort Claims Act. Answering defendant is entitled to official immunity pursuant to Pennsylvania law,” the defenses said.
UPDATE
After a second amended complaint was filed on Feb. 11, defendants Chernov and Baker responded with a partial motion for failure to state a claim on Feb. 19, as to the lone count of “willful misconduct.”
“Plaintiff contends that moving defendants’ conduct constituted ‘willful misconduct’ under the Political Subdivision Tort Claims Act (PSTCA). This claim must be dismissed because willful misconduct is a not a cause of action. The PSTCA immunizes local agencies, such as the City of Philadelphia, from civil liability for state law causes of action unless the conduct in question falls within one of nine statutorily defined waivers of that immunity. PSTCA immunity extends to employees of the local agency, thus immunizing those employees from liability for acts which do not fall within the waivers of immunity,” the dismissal motion stated.
“Relevant for purposes of this motion, an employee of a local agency loses the protections of the PSTCA if ‘it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct. While ‘willful misconduct’ is a defense to a government employee’s assertion of PSTCA immunity, ‘willful misconduct’ is not recognized as a cause of action under Pennsylvania law.’ Thus, the courts of this Circuit have repeatedly and regularly dismissed attempts to assert ‘willful misconduct’ as a stand-alone cause of action. As such, plaintiff’s ‘willful misconduct’ claim should be dismissed with prejudice.”
For counts of violation of the Fourth Amendment for excessive force resulting in death, for failure to intervene, for failure to train in exhibiting deliberate indifference, violation of the Fourteenth Amendment for substantive due process and assault, battery and willful misconduct under Pennsylvania common law, the plaintiff is seeking compensatory and punitive damages, attorney’s fees and costs, pre- and post-judgment interest, other relief that the Court deems just and proper under either law or equity and a trial by jury.
The plaintiff is represented by Adam T. Wolfe of Shollenberger Januzzi & Wolfe in Enola, and Scott P. Stedjan of Killian & Gephart, in Harrisburg.
The defendants are represented by Andrew Pomager of the City of Philadelphia’s Law Department and Nicholas A. Cummins of Bennett Bricklin & Saltzburg, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-01945
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com