WILKES-BARRE, Pa. (CN) – A bus driver does not have to face claims that he assaulted an Alzheimer’s patient who tried to expose his own penis while boarding without paying, a federal judge ruled.
Joe Andrews says he was diagnosed with Alzheimer’s disease in 2000, but living independently under his wife’s care until his alleged confrontation with the Monroe County Transit Authority and bus driver Charles Jordan.
“On October 8, 2009, the Andrews went shopping at Walmart,” according to the court’s summary of Andrews’ revised amended complaint. “While checking out, Mr. Andrews wandered away from his wife and left the store. He then attempted to board a Transit Authority bus. After trying to board the bus without paying, Mr. Jordan, the driver, asked him what he was doing. Mr. Andrews, who was visibly confused and nonverbal, then began to take out his penis.
“Mr. Jordan proceeded to yell at Mr. Andrews. Mr. Jordan then grabbed Mr. Andrews, shoved him repeatedly, and threw him off the bus and onto the sidewalk. Mr. Jordan then shut the door to the bus. Mr. Jordan’s attack was not yet completed, however, as he proceeded to reopen the bus door while Mr. Andrews was lying on the sidewalk, exit the bus, and recommence verbally and physically assaulting Mr. Andrews.”
“As a result, Mr. Andrews fractured his hip and required hip replacement surgery. Because of the fall, Mr. Andrews’ mental condition deteriorated rapidly, and he required frequent hospitalization. Now he is currently institutionalized and completely incompetent. And, as Mrs. Andrews passed away from breast cancer in December 2009, the Andrews were deprived off their last two months together as husband and wife.”
Andrews sued the transit authority and Jordan along with the executor of his wife’s estate, Elgin McCargo, claiming that Jordan routinely acted violently toward bus passengers. The revised amended complaint alleges state-created danger in violation of the federal due-process clause, as well as battery and vicarious liability under state law.
U.S. District Judge A. Richard Caputo dismissed the case with prejudice for failure to state a claim.
“While the court does not take lightly the allegations contained in the revised amended complaint regarding the Transit Authority’s disregard and/or indifference to the needs of disabled passengers, because plaintiffs’ claim is predicated on the Transit Authority’s inaction, as opposed to any affirmative acts, the court is compelled by controlling law to dismiss plaintiffs’ claim,” Caputo wrote.
“Plaintiffs have not sufficiently pled the ‘affirmative act’ element of a ‘state-created danger’ claim and the court declines to exercise jurisdiction over the state laws claims,” the 17-page decision concludes. “Moreover, because on this set of facts plaintiffs cannot establish a ‘state-created danger’ claim, plaintiffs’ claim will be dismissed with prejudice.”