Culver-Union Township Ambulance Service v. Steindler

CHEZEM, Judge,

concurring in result.

I respectfully disagree with the basis upon which the majority reaches its conclusion as to Issue II. I do not agree that a claim exists under 42 U.S.C. § 1983 . The majority put forth the two-part test relied upon by the United States Supreme Court which determines whether a plaintiff who asserts a § 1983 claim against a municipality has met the burden of stating a claim upon which relief can be granted. Collins v. City of Harker Heights, Tex. (1992), - U.S. -, -, 112 S.Ct. 1061, 1066 , 117 L.Ed.2d 261 The first element of the test asks whether plaintiff's harm was caused by a constitutional violation. If this element of the test is not met, Executrix's complaint for relief under § 1983, as a matter of law, will not withstand the motion to dismiss or the motion for judgment on the pleadings under any set of facts. Id.

The majority correctly notes that § 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution that it describes." Maj. Op., supra. We must therefore look directly to the Constitution to determine whether Appellants owed decedent a constitutional duty.

The most familiar office of the Due Process Clause is to provide a guarantee of fair procedure in connection with any deprivation of life, liberty, or property by a State. It is unclear from the face of the complaint whether Executrix alleges a substantive or procedural violation of due process. However, the "process" that the Constitution guarantees in connection with any deprivation of liberty includes a continuing obligation to satisfy certain minimal custodial standards. Id. at 200. Violation of the rights of a patient who is confined by the State in either a prison or mental facility could rise to the level of a procedural due process violation. Procedural due process is designed to protect those persons whose liberty has been involuntarily deprived by the State. Collins, - U.S. at -, 112 S.Ct. at 1069 . Providing medical services to the general public *708 is not a procedwral due process requirement of any municipality. Id. Accordingly, we are limited in our analysis to substantive due process.

Consequently, the issue is whether Executrix's complaint for relief under § 1983 may be grounded upon a claim of substantive due process: whether citizens who are not involuntarily confined by the State have a substantive constitutional right to municipally-provided medical services. If there is no such right, a claim under § 1983 cannot stand, regardless of whether a municipal policy limiting life saving devices "to a selected few individuals" demonstrates reckless indifference to a decedent's rights. "The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this [substantive due process] field." Id. at --, 112 S.Ct. at 1068 .

The majority concedes that Collins stands for the proposition that "a claim which asserts a cognizable constitutional deprivation as a result of "execution of a municipal policy" gives rise to a viable § 1983 dispute." Maj. Op., supra. There must be a cognizable constitutional deprivation. I agree with the majority that the generality noted in Deshaney is not applicable to every situation. For example, in situations where procedural due process protection attaches, as with involuntarily-confined inmates or mental patients, De-shaney does not apply.

However, it is clear that Executrix's claim cannot fall under the penumbra of a procedural due process violation. 1 The Due Process Clause "is not a guarantee against incorrect or ill-advised personnel decisions." Bishop v. Wood (1976), 426 U.S. 341, 350 , 96 S.Ct. 2074, 2080 , 48 L.Ed.2d 684 . Nor, as a general rule, does a State have a constitutional duty to provide substantive services for those within its border. Youngberg v. Romeo (1982), 457 U.S. 307, 319 , 102 S.Ct. 2452, 2460 , 73 LEd.2d 28; Horris v. McRae (1980), 448

U.S. 297, 100 S.Ct. 2671 , 65 LEd.2d 784. Unless we are willing to expand the concept of substantive due process "beyond the limits of judicial cognizance," we cannot say that Executrix's claim falls under the protection of substantive due process.

Executrix's claim is analogous to a state law tort claim: Appellants may have breached their duty of care through negligent medical care. Because the Due Process Clause "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society," Daniels v. Williams (1986), 474 U.S. 327, 382 , 106 S.Ct. 662, 665 , 88 L.Ed.2d 662 , the Due Process Clause should not be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law. Collins, - U.S. at --, 112 S.Ct. at 1070 .

Because there was no constitutional violation, the claim asserted under § 1983 cannot be sustained on any legal ground in the record. I would reverse the trial court's decision to deny Appellant's motion to dismiss on the § 1983 claim. It is therefore unnecessary to discuss whether the § 1983 claim survives the death of decedent.

. The majority relies upon Ross v. United States in support of and cites Andrews v. Wilkins in relation to its proposition that Executrix's claim should survive a motion to dismiss. It should be noted that these cases from separate circuits demonstrate differing outcomes on similar facts. The United States Supreme Court settled the split among the circuits in 1992. Collins is dispositive of the issiie of whether a § 1983 claim can withstand a motion to dismiss.