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Despite finding that a man with AIDS waited too long before filing a federal civil rights suit against the City of Philadelphia for allegedly being denied treatment by emergency workers, a federal judge has ruled that the case may go forward because the U.S. Justice Department has now intervened as a co-plaintiff. In its motion to intervene in John Gill Smith’s case, lawyers from the Justice Department’s civil rights division claim the incident violated a 1994 settlement in United States v. City of Philadelphia in which the city promised to train its emergency workers to treat AIDS patients properly. In the suit, Smith claims that on Feb. 20, 2001, he believed he was having a heart attack, and that his domestic partner called 911. Two emergency medical technicians — Katherine Ceschan and Joanie Kounen — responded to the call, but allegedly refused to offer any treatment when they were informed that Smith had AIDS. Smith claims he was forced to exit his home on his own and board the ambulance without the EMTs’ assistance, and that he was told to sit next to the back door of the ambulance, as far away as possible from the EMT riding in the rear of the ambulance. The suit alleges that one of the EMTs told Smith: “If you cough on me, I can press charges against you.” Smith claims he was obviously suffering upon his arrival at Frankford Hospital, but that the EMTs refused to touch him and ordered him to exit the ambulance and walk to a wheelchair on his own. Due to a lengthy wait for treatment at the hospital, Smith claims he ultimately left to undergo further testing at Hahnemann Hospital, where he was diagnosed with a torn chest muscle rather than a heart attack. Deputy City Solicitor Lynne A. Sitarski moved for dismissal of Smith’s suit, arguing that his federal claims were filed beyond the two-year statute of limitations since he did not file suit until December 2003. Now a federal judge has ruled that while the city is correct in faulting Smith for filing suit too late, the case may go forward because the Justice Department’s federal claims were filed on time. In his 15-page opinion in Smith v. City of Philadelphia, Senior U.S. District Judge Thomas N. O’Neill Jr. concluded that Smith’s claim under Title II of the Americans with Disabilities Act was filed beyond the two-year statute of limitations. O’Neill rejected Smith’s argument that he was entitled to “equitable tolling” of the statute because he had filed a timely complaint with the Pennsylvania Human Relations Commission over the February 2001 incident. The doctrine of equitable tolling simply did not apply, O’Neill found, because Smith “could have raised his federal claims prior to the expiration of the limitations period without prejudicing his state claims.” O’Neill found that “neither Title II of the ADA nor the Rehabilitation Act include a requirement that a plaintiff exhaust his or her administrative remedies before filing suit in federal court.” But that ruling did not put Smith out of court, because O’Neill also found that since the Justice Department’s federal claims were filed on time, the court had the power to exercise supplemental jurisdiction over Smith’s state law claims. Even though the Justice Department didn’t intervene in Smith’s case until August 2004, O’Neill found that its claim was timely because the ADA prohibits the Justice Department from bringing a claim until it has notified the defendant of the alleged violation and determined that compliance cannot be secured voluntarily. O’Neill noted that the Justice Department lawyers first notified the city in March 2004 that they were investigating Smith’s claim, and by late July had notified the city that they intended to intervene. In the July letter, O’Neill noted, the Justice Department “inquired whether [the city] had an interest in resolving the matter.” After three weeks with no response from the city, O’Neill said, the Justice Department intervened in Smith’s case in mid-August. Smith’s lawyers — Ronda Goldfein of the AIDS Law Project of Pennsylvania and Gregory L. Liacouras of Liacouras & Smith — urged O’Neill to apply the doctrine of equitable tolling to allow Smith to pursue the federal claims. But O’Neill found that the federal equitable tolling doctrine applies only if the defendant has “actively misled” the plaintiff about his cause of action, if the plaintiff has “in some extraordinary way” been prevented from asserting his or her rights, or if the plaintiff has timely asserted his or her rights mistakenly in the “wrong forum.” Goldfein and Liacouras argued that Smith qualified under the final prong since his complaint before the PHRC was filed in a timely fashion, but in the wrong forum. O’Neill disagreed, saying the PHRC could not be considered the “wrong forum” since it had jurisdiction over his claim and power to grant relief. But O’Neill concluded that despite the dismissal of Smith’s federal claims, he is nonetheless allowed to pursue his state law claims in federal court because the Justice Department’s timely claims preserved federal jurisdiction. “The situation here is unique,” O’Neill wrote, “because while I have original jurisdiction over the intervening plaintiff’s claims, Smith’s federal claims are time-barred.” Ordinarily, O’Neill said, when a plaintiff’s federal claim is time-barred and there is no basis for diversity jurisdiction, his pendent claims under state law cannot be maintained in federal court. But O’Neill found that the statute on federal supplemental jurisdiction “does not appear to require that I have jurisdiction over Smith’s federal claims in order to exercise supplemental jurisdiction over his state law claims.” Instead, O’Neill said, the statute is more broadly worded and allows for exercise of supplemental jurisdiction in “any civil action of which the district courts have original jurisdiction.” O’Neill concluded that since he had jurisdiction over the Justice Department’s federal claims, he had the power to exercise jurisdiction over Smith’s state law claims because they are “based on the same set of facts.”

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