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Fijalkowski v. Wheeler

United States District Court, E.D. Virginia, Alexandria Division

February 12, 2019

MATEUSZ FIJALKOWSKI, Plaintiff,
v.
M. WHEELER, et al, Defendants.

          MEMORANDUM OPINION

          T. S. ELLIS, III UNITED STATES DISTRICT JUDGE

         This case arises from a somewhat bizarre and nearly tragic set of events. Plaintiff, a citizen and resident of Poland, claims Officers Wheeler, Adcock, Blakely, Bronte-Tinkew, Clark, Grande, Jakowicz, Labarca, McNaught, Mulhern, and Zesk ("the police defendants") are liable for violating plaintiffs Fourteenth and Fourth Amendment rights pursuant to 42 U.S.C. § 1983[1] and for gross negligence under Virginia law. Plaintiff also brings a claim of negligence against defendants Brooks, a lifeguard and plaintiffs former co-worker, and American Pool Inc., plaintiffs former employer ("the pool defendants"). The police defendants and the pool defendants have each moved to dismiss plaintiffs Complaint on a variety of grounds.

         At issue on defendants' motions to dismiss are the following questions:

(i) Are the police defendants entitled to qualified immunity with respect to plaintiffs Fourteenth Amendment claim brought pursuant to § 1983?
Put differently, did the police defendants violate plaintiffs "clearly established" substantive due process rights by preventing a lifeguard from taking timely steps to rescue plaintiff from drowning himself?
(ii) Did the police defendants violate plaintiffs substantive due process rights by their own failure to prevent plaintiff from drowning himself?
(iii) Did the police defendants violate plaintiffs right against unreasonable seizure by failing to prevent plaintiff from drowning himself after securing plaintiff within the fenced-in area around the pool?
(iv) Did the police defendants' failure to prevent plaintiff from drowning himself constitute gross negligence?
(v) Does Virginia's workers compensation scheme cover plaintiffs negligence claims against the pool defendants and thus deprive this court of subject matter jurisdiction over that claim?

         I.

         The standards that govern a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), Fed. R. Civ. P., and a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P., are well settled and thus require only brief elaboration.

         Pursuant to Rule 12(b)(6), a complaint must be dismissed when the plaintiff fails to state a claim upon which relief can be granted. The district court must examine the face of the complaint and, taking all allegations of fact as true and construing them in the light most favorable to plaintiff, decide whether the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         A party may also seek dismissal of the complaint pursuant to Rule 12(b)(1) on the ground that the court lacks subject matter jurisdiction to decide the claims alleged in the complaint. Similar to a 12(b)(6) motion, the district court must assume the truth of the facts alleged in the complaint and decide whether the complaint alleges facts upon which subject matter jurisdiction can be based.[2] Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

         II.

         The following facts are derived from the well-pleaded allegations in the Complaint, which are taken as true for the purposes of a motion to dismiss.[3] See Papasan v. Attain, 478 U.S. 265, 283 (1986).

         In the spring of 2016, plaintiff signed up for a program that would allow him to work in the United States for the summer. Compl. ¶ 6. Plaintiff obtained employment with defendant American Pool Inc. as a pool attendant at the Riverside Apartments swimming pool in Fairfax County, Virginia. Id. ¶¶ 7, 9. On May 23, 2016, plaintiff arrived in the United States, and three days later plaintiff began his employment with defendant American Pool Inc. Id. ¶ 9. Defendant American Pool Inc. trained plaintiff to clean the pool, arrange deck chairs, and check the pH level of the water. Id. ¶ 10. Plaintiff did not know how to swim, and defendant American Pool Inc. did not require him to perform lifeguarding duties as part of his employment. Id. ¶¶ 10, 16.

         On May 30, 2016, plaintiff arrived for work at the Riverside Apartments pool. At some point that afternoon, plaintiff experienced a psychotic episode, [4] which was caused by plaintiffs bipolar disorder. Id. ¶¶ 2, 13, 53. Plaintiff exhibited irrational behavior, such as arguing with guests over the colored wristbands required for entry into the pool and grabbing one young woman by the arm and ripping off her wristband. Id. ¶ 11. Plaintiff began talking to himself in Polish and walking around the pool without purpose and appeared to be emotionally or mentally distressed. Id. Defendant Brooks, who was a lifeguard also employed by defendant American Pool Inc., witnessed plaintiffs behavior and called for police assistance. Id. ¶ 12. The police defendants responded to the pool a few minutes later. Id. ¶¶ 13, 14.

         When the police defendants arrived, the police attempted to communicate with plaintiff several times, but plaintiff did not acknowledge the police defendants. Id. ¶ 14. Instead, plaintiff blew a lifeguard whistle and continually moved away from the police defendants. Id. After discussing how to proceed, the police defendants directed all pool patrons to leave the pool area and locked the fence that surrounded the pool. Id. ¶ 17. The only individuals that remained inside the fenced-in pool area were plaintiff, defendant Brooks, and the police defendants. Id. Defendant Brooks informed the police defendants about plaintiffs behavior and told the police defendants that plaintiff was experiencing a psychotic episode. Id. ¶ 15. Defendant Brooks also told the police defendants that plaintiff could not swim. Id. ¶ 16. According to the Complaint, the police defendants understood that plaintiffs serious mental health crisis and related behavior made plaintiff a potential risk of harm to himself and to others at the pool. Id. ¶ 19.

         The police defendants called one of plaintiffs Polish roommates and a Polish-speaking police officer to the pool to attempt to communicate with plaintiff, whose English was poor. Id. ¶¶ 6, 21, 25. Again, plaintiff would not acknowledge either the Polish-speaking officer or plaintiffs Polish roommate. Id. ¶¶ 21, 25.

         Plaintiff continued to exhibit unusual and erratic behavior. Plaintiff paced around the pool and continued to talk to himself, apparently praying in Polish. Id. ¶ 24. Plaintiff threw his cell phone into the deep end of the pool and then walked into the pool, submerging himself in the deep end, which was eight feet deep. Id. ¶¶ 24, 37. After recovering the cell phone, plaintiff emerged from the pool. Plaintiff then threw his cell phone into the deep end of the pool a second time. Again, plaintiff walked into the pool and submerged himself underwater. And again, plaintiff emerged from the pool after recovering the cell phone. Plaintiff then climbed into a lifeguard tower and shouted and blew his whistle for no reason. The police defendants continued to attempt to communicate with plaintiff, but plaintiff did not respond. Id. ¶ 24.

         After some period of time, plaintiff finally stood calmly and silently for about one minute near the ladder at the shallow end of the pool. Id. ¶¶ 26, 28. Plaintiff then walked slowly to the ladder and entered the water a third time. Id. ¶ 28. The police defendants neither ordered plaintiff not to re-enter the pool nor physically prevented plaintiff from re-entering the pool. Id. ¶ 27.

         Plaintiff again walked into the deep end of the pool and submerged himself underwater. Id. ¶¶ 28, 29. Defendant Brooks and the police defendants stood around the pool and watched plaintiff. Id. ¶ 30. After some period of time, plaintiff grabbed onto the pool's drain cover underwater in the deep end and struggled not to surface. Plaintiff eventually vomited underwater and then stopped moving. Id. ¶ 31. After being underwater for one minute and twenty-two seconds, plaintiff released the air retained in his lungs. The police defendants and defendant Brooks continued to stand around the pool and look at plaintiff underwater. Id. ¶ 32. According to the Complaint, the police defendants and defendant Brooks should have recognized that plaintiff was at risk of drowning after plaintiff had been submerged for thirty seconds and had released the air from his lungs. Id. ¶¶34, 39.

         At some point in time unspecified by the Complaint, defendant Brooks expressed that he needed to enter the pool to rescue plaintiff. Id. ¶ 40. As a trained lifeguard with access to rescue equipment, defendant Brooks was fully capable of rescuing plaintiff. Id. ¶ 41. Nonetheless, one or more of the police defendants ordered defendant Brooks not to enter the pool. Id. ¶ 40. Although defendant Brooks did not agree with the police defendants, defendant Brooks obeyed the police defendants' order. Id. ¶ 42.

         After plaintiff had been submerged for over two and one-half minutes, defendant Brooks again requested permission from the police defendants to dive into the pool and rescue plaintiff. This time the police defendants gave defendant Brooks permission to dive into the pool. Id. ¶ 43. Defendant Brooks brought plaintiffs body to the surface, and several of the police defendants removed their belts and jackets and jumped into the pool to help drag plaintiff out of the pool. Id. ¶¶ 45, 47. In total, plaintiff had been submerged for two minutes and forty-four seconds. Id. ¶ 46.

         The police defendants began to perform cardio-pulmonary resuscitation ("CPR") on plaintiff. Id. ¶ 47. Emergency medical technicians ("EMTs") arrived about two minutes later and used a ladder to climb over the locked pool fence to reach plaintiff. Id. ¶ 48. Upon arrival, the EMTs found that plaintiff was not breathing and did not have a pulse. Id. ¶ 49. The EMTs continued CPR and applied an automatic external defibrillator to plaintiffs chest. Id. ¶ 50. The EMTs revived plaintiff and transported plaintiff to Fairfax Hospital Emergency Department. Id. ¶ 51.

         Plaintiff remained in the hospital's Heart and Vascular Institute until June 8, 2016. Thereafter, plaintiff was transferred to the hospital's psychiatric unit, where he was diagnosed with bipolar disorder and was found to have suffered from psychosis, thought disorganization, delusions, and paranoia on May 30, 2016. Plaintiff retained only scattered memories of what had occurred during his psychotic episode. Id. ¶ 53. On June 14, 2016, plaintiff was discharged from the hospital and returned to Poland with his father. Id. ¶ 54.

         Based on these facts, plaintiff has brought suit to recover damages for the physical and mental injury, emotional distress, and medical expenses caused by the conduct allegedly taken by defendants in response to plaintiffs psychotic episode and attempt to drown himself. Specifically, plaintiff claims the police defendants are liable for violating plaintiffs Fourteenth and Fourth Amendment rights pursuant to 42 U.S.C. § 1983 and for gross negligence under Virginia law. Plaintiff also advances claims of negligence under Virginia ...


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