Ziccardi v. Philadelphia PRECEDENTIAL
Filed April 30, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1895
*JOSEPH ZICCARDI, ESQ., as
ADMINISTRATOR OF THE ESTATE OF JAMES SMITH
v.
CITY OF PHILADELPHIA;
ROGER MORFITT; JOSEPH
DIFRANCESCA
Joseph DiFrancesca and
Roger Morfitt,
Appellants
*(Amended -- See Court's Order dated 3/14/02)
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Court Judge: Honorable Mary A. McLaughlin
(D.C. No. 99-cv-05484)
Argued: January 15, 2002
Before: ALITO and ROTH, Circuit Judges, and
SCHWARZER,* Senior District Judge.
(Opinion Filed: April 30, 2002)
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* The Honorable William W Schwarzer, Senior District Judge for the
Northern District of California, sitting by designation.
RICHARD G. FEDER (Argued)
Chief Deputy City Solicitor (Appeals)
SARA E. RICKS
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Counsel for Appellants
EDWARD T. LAWLOR, Jr. (Argued)
297 S. Newtown Street Road
Newtown Square, PA 19073
LEONARD A. COHEN
2401 Pennsylvania Avenue,
Suite 1C-51
Philadelphia, PA 19130
Counsel for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal from a district court order denying a
motion for summary judgment based on qualified immunity
in an action under 42 U.S.C. S 1983. The action was filed
by James Smith, now deceased, against two Philadelphia
Fire Department paramedics and the city. Smith alleged
that the paramedics rendered him a quadriplegic by lifting
him after he had fallen from a wall and sustained spinal
injury. He claimed that the actions of the paramedics
violated his rights under the Due Process Clause of the
Fourteenth Amendment. The district court held that the
summary judgment record was sufficient to show that the
paramedics acted with subjective deliberate indifference
and therefore denied their summary judgment motion. To
the extent that this appeal raises issues of law, we affirm
the decision of the district court. To the extent that the
appeal disputes the district court's identification of the
facts that are subject to genuine dispute, we dismiss the
appeal for lack of appellate jurisdiction.
2
I.
In the early morning hours of May 16, 1998, after a night
of drinking, James Smith, then 24 years old, went to his
aunt's residence in Philadelphia, where he often stayed.
App. at 5a. He was not able to enter the house because he
did not have a key and no one responded to his knocks on
the door. Id. He therefore sat down on the wall in front of
the house and eventually fell asleep. Id. He apparently fell
from the wall and dropped about eight feet to the sidewalk
below. Id. After Smith fell, several neighbors heard him
groaning and yelling, but by all accounts he was moving his
legs and arms. Id.
Joseph DiFrancesca and Roger Morfitt ("the appellants"),
Philadelphia Fire Department paramedics, responded to a
911 call placed by a neighbor. According to Maceo
Gatewood, a neighbor, the following then occurred. When
the paramedics approached Smith, they asked him what
his name was and what was wrong. Supp. App. at 5b. He
said: "I'm hurt. I hurt my head." Id. Smith repeated several
times that he had hurt his neck.2 App. at 144a-45a. One of
the paramedics said: "[G]et up. Are you drunk?" and "[G]et
up or we're going to call the police." Id. at 182a-83a. Smith
responded, "I can't get up." Id. at 183a. After nudging
Smith a few times and again asking him to get up, the
paramedics each grabbed one of Smith's arms and
"snatched him up and threw each arm over their shoulders
and dr[agged] him to the . . . stretcher," which they had
removed from the ambulance and placed in the street. Id.
at 183a-84a. Gatewood said that the paramedics "snatched
up" Smith "pretty hard" and that after they did so his head
jerked back. Id. at 185a. In Gatewood's words, Smith "sort
of got real limp after that, like everything started hanging
on him," and he did not move his arms or legs thereafter.
Id.
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2. Gatewood said that these remarks were made"after the ambulance got
there," App. at 144a, but the defendants assert that the record does not
show whether these alleged remarks were made when the paramedics
were within earshot. Appellants' Br. at 5 n.1. The defendants also note
that neither Smith nor Roberta Brown, who was on the scene, recounted
these remarks.
3
Another neighbor, Roberta Brown, gave the following
account. She said that when the paramedics arrived at the
scene, she told them that Smith was called "Man," and they
said: "[G]et up, Man. Get up before we call the police.
You're only drunk, get up." App. at 186a. Smith responded:
"I'm hurt." Id. at 187a. The paramedics then each took one
of his arms and "yanked him up." Id. In Brown's words,
Smith then "started hollering, `Miss Burt, Miss Burt, tell
them to put me down. I can't move.' And they yanked him
up and his head went back." Id. at 186a-87a. The
paramedics then got the stretcher; one lifted his feet and
the other lifted the upper part of his body, and they put
him on the stretcher and took him away. Id. at 187a.
Smith recounted what happened as follows. When the
paramedics arrived, he was on his stomach, and they told
him to get up. App. at 83a-84a. He replied: "I can't get up."
Id. at 85a. They then said: "Get up before we call the cops
on you." Id. Smith responded: "I can't move. I can't get up."
Id. at 86a. The paramedics then rolled him on his back,
each paramedic grabbed an arm, and they "pulled" or
"yanked" him up. Id. As they pulled him up, his neck
"snapped back." Id. at 87a. In Smith's words, "it was like
somebody hit a light switch and [he] just went completely
numb" below the neck. Id. at 87a-88a. The paramedics
then laid him down, got the stretcher, put him on the
stretcher, and transported him to a hospital. Id . at 88a-
89a.
When Smith reached the hospital, the doctors recognized
the seriousness of his condition and stabilized his neck by
putting him in a hard collar and placing him on a board.
App. at 208a. He was diagnosed with permanent
quadriplegia. Id. at 7a. A physician who treated Smith at
the hospital stated:
It is a medical certainty that [the paramedics] should
have immobilized his cervical spine prior to moving
him. To have, instead, lifted him by his arms and then
by his shoulders and legs is unconscionable. It is my
opinion within a reasonable degree of medical
certainty, that Mr. Smith's quadriplegia is directly
attributable to the actions of the paramedics.
4
Id. at 213a.
Dr. Stephan Lynn, an expert in emergency medical
services, reviewed the records and opined that the
paramedics "demonstrated incredible and shockingly
deliberate indifference to Mr. James Smith and to his needs
as an injured person seeking ambulance assistance." App.
at 225a.
In October 1999, Smith filed a complaint in the Court of
Common Pleas of Philadelphia County, asserting due
process claims against the two paramedics and the city.
The complaint alleged that the paramedics' actions in lifting
him improperly had deprived him of his liberty interest in
bodily integrity. The complaint also alleged that the
paramedics' conduct was in accordance with an established
city custom of treatment toward intoxicated individuals and
that the paramedics' conduct resulted from the city's failure
to provide proper training despite prior instances of
mistreatment.
The defendants removed the case to the United States
District Court for the Eastern District of Pennsylvania and,
after discovery, moved for summary judgment. The
individual defendants asserted the defense of qualified
immunity, but the district court refused to grant summary
judgment on that ground. The court held that "a reasonable
jury could find that the defendant paramedics acted with
deliberate indifference and in a manner that shocks the
conscience in injuring the plaintiff." Dist. Ct. Op. at 2. The
district court also concluded that "clearly established law at
the time of the incident provided sufficient guidance to the
defendants about the unconstitutionality of their conduct."
Id. In addition, the court denied the city's request for
summary judgment because that request was based solely
on the contention that no underlying due process violation
could be established. Id. The individual defendants then
took this appeal.3
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3. While the appeal was pending, Smith died, and Joseph Ziccardi, Esq.,
the administrator of his estate, was substituted as the plaintiff.
5
II.
On appeal, the appellants first contend that the district
court applied the wrong legal standard in denying their
summary judgment motion. They argue that, "[a]t an
absolute minimum," the plaintiff was required to show that
they had "actual knowledge" that he had suffered a serious
spinal injury and that they nevertheless moved him"with
actual deliberate indifference to his safety." Appellants' Br.
at 10. The appellants also contend that even proof of
"actual deliberate indifference" may not suffice and that,
under our decision in Miller v. City of Philadelphia, 174
F.3d 368 (3d Cir. 1999), "a state of mind that approaches
an `an intent to harm' plaintiff is required to prove a
constitutional violation in the instant context." Id. at 13.
The appellants maintain that we have jurisdiction to
consider both of their arguments under the collateral order
doctrine first recognized in Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), but they read the relevant
precedents too broadly. In Mitchell v. Forsyth , 472 U.S. 511
(1985), the Supreme Court held that "a district court's
denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is an appealable `final decision' "
under the collateral order doctrine. Id. at 530 (emphasis
added). In Johnson v. Jones, 515 U.S. 304 (1995), the Court
made it clear that the collateral order doctrine does not
permit an appeal from an order denying a motion for
summary judgment if the issue raised is "whether or not
the evidence in the pretrial record [is] sufficient to show a
genuine issue of fact for trial." Id. at 307.
Johnson involved an action under 42 U.S.C.S 1983
against five police officers for use of excessive force in
effecting an arrest. Id. Three of the officers moved for
summary judgment, arguing that there was insufficient
evidence in the summary judgment record to permit a
reasonable finder of fact to find that they were present
when the plaintiff was beaten. Id. The district court denied
this motion, concluding that there was enough evidence to
defeat summary judgment. Id. at 308. The officers appealed
and invoked the collateral order doctrine, but the Supreme
Court unanimously held that appellate jurisdiction was
lacking. Id. The Court held that Mitchell does not authorize
6
an appeal from an order denying summary judgment if the
order, "though entered in a `qualified immunity' case,
determines only a question of `evidence sufficiency,' i.e.,
which facts a party may, or may not, be able to prove at
trial." Id. at 313. As we understand Johnson, if a defendant
in a constitutional tort case moves for summary judgment
based on qualified immunity and the district court denies
the motion, we lack jurisdiction to consider whether the
district court correctly identified the set of facts that the
summary judgment record is sufficient to prove; but we
possess jurisdiction to review whether the set of facts
identified by the district court is sufficient to establish a
violation of a clearly established constitutional right.4 See
Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204,
208 (3d Cir. 2001).
The appellants urge us to read Johnson to apply only to
evidentiary questions regarding conduct as opposed to
intent. Relying chiefly on Jeffers v. Gomez, 267 F.3d 895,
907-10 (9th Cir. 2001), they argue that Johnson permits us
to entertain a collateral order appeal that challenges a
district court's decision denying summary judgment on the
ground that there is a genuine issue of fact as to whether
the defendant acted with the intent required by the
particular constitutional claim asserted. We cannot agree.
In our view, Johnson clearly applies to factual disputes
about intent, as well as conduct.
First, we see nothing in the Johnson Court's reasoning
that supports a distinction between issues of conduct and
issues of intent. Referring to the requirement of the
collateral order doctrine that an appeal must present an
issue completely separate from the merits of the case,
Johnson observed that "[w]here . . . a defendant simply
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4. We reject the appellants' suggestion that Saucier v. Katz, 533 U.S. 194
(2001), somehow narrowed Johnson. Saucier never referred to Johnson
and said nothing whatsoever about appellate jurisdiction. Nor do we read
Brown v. Armenti, 247 F.3d 69 (3d Cir. 2001), as supporting appellants'
position. In Brown, we quoted Behrens v. Pelletier, 516 U.S. 299, 313
(1996), stating that Johnson held "that determinations of evidentiary
sufficiency at summary judgment are not immediately appealable merely
because they happen to arise in a qualified-immunity case." 247 F.3d at
77.
7
wants to appeal a district court's determination that the
evidence is sufficient to permit a particular finding of fact
after trial, it will often prove difficult to find any such
`separate' question -- one that is significantly different from
the fact-related legal issues that likely underlie the
plaintiff 's claim on the merits." Johnson , 515 U.S. at 314.
This reasoning applies equally to questions regarding proof
of conduct and proof of intent. The latter are no more
separable from the merits of the case than the former.
The Johnson Court also noted that "the existence, or
nonexistence, of a triable issue of fact [ ] is the kind of issue
that trial judges, not appellate judges, confront almost
daily," and the Court added that "[i]nstitutionally speaking,
appellate judges enjoy no comparative expertise in such
matters." Id. at 316. Again, this reasoning applies equally
to questions regarding conduct and intent.
Finally, Johnson reasoned that "the close connection
between [the kind of issue raised in the case before it] and
the factual matter that will likely surface at trial means
that the appellate court, in the many instances in which it
upholds a district court's decision denying summary
judgment, may well be faced with approximately the same
factual issue again, after trial, with just enough change
brought about by the trial testimony to require it, once
again, to canvass the record." Id. at 316-17. This, the Court
observed, would result in an "unwise use of appellate
courts' time." Id. at 317. These observations, too, seem
equally applicable to issues of conduct and intent. Thus,
the reasoning of Johnson lends no support to the
appellants' proffered distinction between conduct and
intent.
Second, at least one passage in Johnson refers directly to
questions of intent and suggests that the Court specifically
contemplated that its decision would not allow interlocutory
appeals regarding the sufficiency of the evidence of intent.
The Court wrote:
[Q]uestions about whether or not a record
demonstrates a `genuine' issue of fact for trial, if
appealable, can consume inordinate amounts of
appellate time. Many constitutional tort cases , unlike
8
the simple `we didn't do it' case before us, involve
factual controversies about, for example, intent--
controversies that, before trial, may seem nebulous. To
resolve these controversies -- to determine whether
there is or is not a triable issue of fact about such a
matter -- may require reading a vast pretrial record,
with numerous conflicting affidavits, depositions, and
other discovery materials.
Id. at 316 (emphasis added). We thus reject the appellants'
reading of Johnson.
III.
With this understanding of the scope of our appellate
jurisdiction in mind, we address the specific arguments
raised by the appellants. As noted, the appellants' first
argument is that, at an absolute minimum, the plaintiff is
required to show that they acted with subjective deliberate
indifference and that the district court did not apply this
standard. This is a question of law, and it is therefore
properly before us, but we reject the argument on the
merits for the simple reason that the district court did
apply the subjective indifference standard. The district
court wrote:
Most courts have held that the deliberate indifference
standard requires a showing of "subjective deliberate
indifference" . . . . A subjective standard would require
that the defendants actually knew of Smith's injuries.
The record reveals sufficient facts from which a
reasonable jury could find that the defendants inferred
that Smith was seriously injured.
Dist. Ct. Op. at 18-19. After recounting some of what the
neighbors had said, the court concluded:
Whether DiFrancesca and Morfitt actually did draw the
inference that Smith was seriously injured from these
facts is an issue for a jury to decide. The Court finds
that a reasonable fact-finder would be able to find that
the paramedics had actual knowledge of the fact that
Smith was seriously injured.
9
Id. at 20. The appellants' argument that the district court
did not apply the "subjective deliberate indifference" test is
thus entirely without merit.
The real thrust of the appellants' argument appears to be
that the summary judgment record is insufficient to prove
that they acted with subjective deliberate indifference. Since
the district court held to the contrary, they reason that the
court must not in fact have applied the right legal standard.
The appellants state that, while the district court's opinion
contains language "purporting to apply . . . the . . .
subjective test of actual knowledge, the district court in
reality applied a reasonable-person objective, negligence-
like standard." Appellants' Br. at 10. The appellants'
argument is an attempt to circumvent Johnson by
disguising what is in truth an evidentiary argument as a
legal argument. The disguise is transparent, and we
dismiss the appellants' appeal to the extent that it presses
this evidentiary issue.
IV.
A.
The appellants' remaining argument is that even
"subjective deliberate indifference" is not enough. In the
district court, the appellants argued that the plaintiff was
required to prove that they acted with an actual intent to
harm him. See Dist. Ct. Op. at 9. The appellants' briefs on
appeal did not advance this argument, and at oral
argument, however, counsel for the appellants specifically
stated, in response to a question, that he was not arguing
that an actual intent to harm is needed. Instead, the
appellants have fallen back on the position that something
more than subjective deliberate indifference but less than
actual intent to harm is required. Relying on a phrase in
Miller, they contend that the requisite intent is "gross
negligence or arbitrariness that indeed `shocks the
conscience.' " Miller, 174 F.3d at 375-76. The question
whether something more than subjective deliberate
indifference must be shown in this case is a legal question
that we may entertain in this appeal.
10
B.
The intent needed to support a substantive due process
claim is a question that has long troubled our court. See,
e.g., Davidson v. O'Lone, 752 F.2d 817 (3d Cir. 1984) (en
banc), aff 'd, 474 U.S. 344 (1986); Fagan v. City of
Vineland, 22 F.3d 1283 (3d Cir. 1994) (en banc); Nicini v.
Morra, 212 F.3d 798 (3d Cir. 2000) (en banc). The Supreme
Court most recently discussed this issue in City of
Sacramento v. Lewis, 523 U.S. 833 (1998), a police chase
case. After noting that " `[t]he touchstone of due process is
protection of the individual against arbitrary action of
government," id. at 845 (quoting Wolf v. McDonnell, 418
U.S. 539, 558 (1974)), the Court added that "the cognizable
level of executive abuse of power" is "that which shocks the
conscience." Id. at 846. The Court stated that "conduct
intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely
to rise to the conscience-shocking level." Id . at 849. The
Court acknowledged that it had held that "deliberate
indifference," as opposed to an intent to harm, was
sufficient in one context, medical treatment of pretrial
detainees. Id. at 849-50. In that situation, the Court
observed, deliberation about the proper course of conduct
"is not only feasible but obligatory under a regime that
incapacitates a prisoner to exercise ordinary responsibility
for his own welfare." Id. at 851. The Court contrasted "the
custodial prison situation" with a police chase. Id. at 853.
The Court stressed that a police officer, in deciding whether
to begin or break off a chase, does not have time to
deliberate and must balance the risks of a chase against
the risks of permitting the suspect to escape. Id. The Court
therefore held that in a police chase case an actual intent
to harm must be shown. Id. at 854.
We have applied Lewis in several subsequent cases. In
Miller, on which the appellants rely, a mother and her
children claimed that a social worker violated their
substantive due process rights by taking actions that led to
an emergency ex parte order removing the children from the
mother's custody due to suspected child abuse. Miller, 174
F.3d at 370-71. Noting that "a social worker acting to
separate parent and child . . . rarely will have the luxury of
11
proceeding in a deliberate fashion," we held that"the
standard of culpability for substantive due process
purposes must exceed both negligence and deliberate
indifference, and reach a level of gross negligence or
arbitrariness that indeed `shocks the conscience.' " Id. at
375-76.
In Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000), we
considered a substantive due process claim asserted by a
minor against a caseworker from the New Jersey Division of
Youth and Family Services based on the minor's abuse in
what we viewed as tantamount to a foster home. Id. at 800.
We analogized the situation of a minor placed in a foster
home with that of an institutionalized person and noted
that the caseworker had time to make unhurried judgments
in deciding whether to permit the minor to remain in the
home. Id. at 807. We thus distinguished Miller and held
that a standard of deliberate indifference was appropriate.
Id. at 810-11.
C.
The appellants' current argument -- that Smith is
required to prove something more than subjective deliberate
indifference but less than an intent to harm -- was never
raised in the district court. Instead, the appellants argued
in the district court that an intent to harm is needed. They
maintained that the intent-to-harm standard adopted in
Lewis should apply and stated: "Paramedics are similarly
situated to pursuing police officers and their actions should
be held to the same consci[ence] shocking standard. They
make decisions in haste, under pressure, and without the
luxury of a second chance." App. at 262a. Although the
appellants cited and briefly discussed Miller in their papers,
they never mentioned that the standard applied in Miller
required less than an intent to injure, and they never
argued -- even as a back-up argument -- that this lesser
standard should be applied. See App. at 263a.
We generally do not address arguments that were not
made in the district court and we therefore decline to
consider the appellants' current argument as a ground for
reversing the decision of the district court. See Bailey v.
12
United Airlines, 279 F.3d 194, 202 (3d Cir. 2002); Brown v.
Philip Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001).
However, because it would be inefficient for us to remand
this case to the district court without clarifying whether
Miller requires proof of more than subjective deliberate
indifference, we will address that question.
We agree with the appellants that Miller, which is of
course binding on us, mandates at least something more
than subjective deliberate indifference as that term is
defined in Farmer v. Brennan, 511 U.S. 825 (1994).5 Miller
is important here for at least two reasons. First, the lead
plaintiff in Miller (the mother) -- like Smith in this case and
unlike the plaintiff in Nicini -- was not in a situation
analogous to institutionalization, but the court nevertheless
held that an actual intent to harm was not needed to
support the due process claim. Miller, 174 F.3d at 375-76.
Second, Miller's reason for holding that more than
deliberate indifference had to be shown -- the social
worker's need to act without "the luxury of proceeding in a
deliberate fashion," id. at 375 -- seems equally applicable
here. While the record in the present case does not suggest
that the appellants had any particular need to move Smith
quickly -- for example, he was not in a dangerous location
and did not appear to have any other medical problems
requiring prompt movement -- the social worker in Miller
similarly does not appear to have had a need to make a
split-second decision. What the Miller court seems to have
had in mind was the need for the social worker to act in a
matter of hours or minutes. Nevertheless, the Miller court
held that the nature of the situation faced by the social
worker mandated proof of something more than subjective
deliberate indifference, and this holding seems to require
the application of a similar standard here.
We must thus attempt to determine exactly what Miller
required. The appellants have seized upon the phrase"a
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5. In Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), which preceded
Lewis, we held that deliberate indifference sufficed in a case in which
state actors placed the plaintiff in a dangerous situation and the plaintiff
was harmed by a nongovernmental actor. The case before us is not a
"state created danger" case and is not governed by Kneipp.
13
level of gross negligence or arbitrariness that indeed
`shocks the conscience.' " Id. at 375-76. The Miller court
used this phrase as one part of its explanation of the
ground for affirming a grant of summary judgment for the
social worker, and we do not think that the phrase was
intended as a precise articulation of the governing legal
standard.6
So what did Miller require? We can approach an answer
by noting what Miller did not demand. As noted, Miller
expressly stated that the defendant social worker need not
have acted with the purpose of causing the relevant harm,
namely, removal of the children without good cause. Id. at
375. Nor did Miller suggest that the defendant had to have
known that this harm was practically certain to result.7 On
the other hand, Miller demanded something more than
deliberate indifference, which requires (in the sense
applicable here) that a person consciously disregard"a
substantial risk of serious harm." Farmer, 511 U.S. at 836.
Miller thus appears to have demanded proof of something
less than knowledge that the harm was practically certain
but more than knowledge that there was a substantial risk
that the harm would occur. A simple way of putting this is
that Miller mandated proof that the defendant was aware of
more than a substantial risk -- let us say a great risk --
that there was no good cause for the removal of the
children.
This reading of Miller is supported by Miller's discussion
of Croft v. Westmoreland County Children & Youth Services,
103 F.3d 1123 (3d Cir. 1997), in which parents were told
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6. The phrase is not well suited for that purpose. "[A]rbitrariness" is a
general requirement for a substantive due process violation, see Lewis,
523 U.S. at 846, not a specification of a precise degree of intent. And
"gross negligence" is a lower level of intent than even tort-law
recklessness, which is, in turn, lower than criminal-law recklessness or
subjective deliberate indifference. Id. at 849.
7. Compare Model Penal Code S 2.02(2)(b) (a person acts "knowingly" with
respect to a result if the person is aware that the result is "practically
certain" to occur). In Farmer v. Brennan, 511 U.S. 825, 839 (1994), the
Supreme Court referred to the Model Penal Code's definition of
recklessness, and therefore reference to the Model Penal Code's carefully
constructed categorization of intent is appropriate here.
14
that their daughter would be immediately removed from the
home and placed in foster care unless the father left the
home and avoided any contact with the daughter while an
investigation was conducted to determine whether he was
sexually abusing her. Id. at 1124. Noting that the defendant
social worker in that case had no evidence of abuse except
an anonymous tip based on hearsay and that the social
worker had not even formed an opinion as to whether
abuse had occurred, the Croft court held that the plaintiff
parents and child had adduced sufficient evidence to
establish a substantive due process violation. Id. at 1127.
The court stressed that the defendant caseworker's conduct
was "arbitrary" and completely without reasonable
evidentiary support. Id. As the court stated in Miller:
[T]he social worker was acting solely on the basis of a
sixth-level hearsay statement and had not personally
formed an opinion as to whether abuse was likely.
Breaking the parent-child bond under these
circumstances, we held, was an arbitrary abuse of
government power.
Miller, 174 F.3d at 375. Another way of putting the same
point is that the social worker, in ordering the father's
removal, consciously disregarded a great risk that there
had been no abuse.
In summary, then, we understand Miller to require in a
case such as the one before us, proof that the defendants
consciously disregarded, not just a substantial risk, but a
great risk that serious harm would result if, knowing Smith
was seriously injured, they moved Smith without support
for his back and neck. On remand in the present case, we
believe that the district court should apply this standard
and instruct the jury accordingly if one is empaneled.
V.
For the reasons explained above, this appeal is dismissed
in part, and the order of the district court denying the
appellants' motion for summary judgment is affirmed.
15
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
16