Dubovsky, ex rel. Estate of Dubovsky v. City of
Philadelphia
No. Civ.A.04-CV-467, 2005 WL 113016 (E.D. Pa. 2005)
Plaintiff's adopted son William had FAS and mental health problems. As
a teenager, William lived in a full-time residential services program (the
"Lodge"). William's mental illness did not improve while at the Lodge and
became so acute that he voluntarily signed himself into Friend's
Hospital--an institution that provides inpatient and partial hospital
services to individuals suffering from mental illness. Upon his discharge
from Friend's Hospital, William returned to the Lodge, but failed to
receive the one-on-one supervision that was promised to him by the
Philadelphia Office of Mental Health and Mental Retardation. Shortly
after returning to the Lodge, William wandered away unescorted, was struck
by a car and died.
Plaintiff filed a Section 1983 suit, claiming that the City's failure to
provide William adequate care violated William's due process rights. The
court held that the "custodial relationship" exception to the general rule
that the Due Process Clause does not afford the right to government
protection did not apply because William voluntarily placed himself into a
custodial relationship with the government. In addition, the court held
that the "state-created danger" exception did not apply in this case
because although the City could have minimized the danger William was in,
the City did not create that danger.
The fact of William's FAS diagnosis was not discussed in the court's
decision.