Michelle McDonald-Witherspoon v. City of Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1019
______________
MICHELLE MCDONALD-WITHERSPOON,
Individually and as adminstratrix of the estate of Kenyada Jones,
Appellant
v.
CITY OF PHILADELPHIA; WARDEN GERALD MAY; CORIZON HEALTH, INC.;
VIVIAN GANDY, MD; MARIAMMA SAMUEL, RN; JENNIFER MARCINKOWSKI,
MA; MHM SERVICES INC, a/k/a MHM Correctional Services, Inc.; DEBORAH
HARRIS-WHITE, LSW; CHERYL BLADWIN, MSW; AMBER E. BROWNE;
JEANETTE PALMER
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cv-01914)
District Judge: Hon. John R. Padova
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 10, 2021
______________
Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.
(Filed: December 21, 2021)
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
This appeal addresses whether the District Court correctly dismissed federal and
state claims against the City of Philadelphia (the “City”), the Philadelphia Adult Parole
and Probation Department (“PAPPD”), and probation officers Amber Browne and Janette
Palmer arising from the death of an incarcerated adult who struggled with schizophrenia
and depression. For the reasons set forth below, the District Court properly dismissed all
claims, and we will therefore affirm.
I
Kenyada Jones had a history of mental illness, including schizophrenia and
depression. He was arrested during a visit with his probation officer, Amber Browne,
and her supervisor, Janette Palmer, and held at Curran-Fromhold Correctional Facility.
While there, he overdosed on blood pressure medication and died.
Jones’ mother, Plaintiff Michelle McDonald-Witherspoon, sued, among others, the
City, PAPPD, Browne, and Palmer (collectively, “Defendants”) in Pennsylvania state
court, asserting violations of 42 U.S.C. § 1983, the Americans with Disabilities Act
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
2
(“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and
state law. After the case was removed to the United States District Court for the Eastern
District of Pennsylvania, Defendants moved to dismiss the complaint. The District Court
granted the motions in part and denied them in part (“First Order”). See McDonald-
Witherspoon v. City of Philadelphia (“McDonald I”), No. CV 17-1914, 2017 WL
3675408 (E.D. Pa. Aug. 25, 2017).
Plaintiff filed an amended complaint that asserted largely the same claims but
added factual allegations and additional defendants not at issue in this appeal.
Defendants moved to dismiss the amended complaint, which the District Court granted in
part and denied in part (“Second Order”). See McDonald-Witherspoon v. City of
Philadelphia (“McDonald II”), No. CV 17-1914, 2018 WL 4030702 (E.D. Pa. Aug. 23,
2018).1
Following discovery, the City, Browne, and Palmer moved for summary judgment
on the surviving claims, which the District Court granted (“Third Order”). See
McDonald-Witherspoon v. City of Philadelphia (“McDonald III”), 481 F. Supp. 3d 424(E.D. Pa. 2020).
Plaintiff appeals the portions of the District Court’s orders concerning certain
1
The District Court granted Plaintiff leave to file a second amended complaint but
only to identify the names of additional defendants not at issue in this appeal. Plaintiff
filed a second amended complaint, but the Court struck portions of it as exceeding the
permitted amendments. Plaintiff did not appeal this order.
3
claims against the City, PAPPD, Browne, and Palmer.2
II3
Plaintiff asserts that the District Court erred in its First Order, which dismissed
(1) Plaintiff’s § 1983 “deliberate indifference to serious medical need” claim against
Browne and Palmer; and (2) Plaintiff’s ADA claim against PAPPD. To determine
whether dismissal under Fed. R. Civ. P. 12(b)(6) was warranted, we accept as true and
recite below the complaint’s relevant factual allegations.
In her complaint, Plaintiff alleged that Jones was a “disabled individual, having a
permanent and serious disability diagnosed as paranoid schizophrenia, schizoaffective
disorder, depressive disorder, bipolar disorder, psychotic disorder and/or similar
diagnoses” and that “[t]his mental disorder caused [Jones] to be weaker and more
vulnerable than the general population and in need of special assistance.” J.A. 26
(Complaint) ¶ 9. Plaintiff then alleged that while “on parole/probation for a DUI charge,
[Jones] visited his parole officer Browne where he was seen and handled by Browne and
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We
have jurisdiction under 28 U.S.C. § 1291.
3
We review de novo a district court’s order granting a motion to dismiss under
Federal Rule of Procedure 12(b)(6). In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267,
273 (3d Cir. 2004). To survive a Rule 12(b)(6) motion, “a complaint must contain
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) (quotation marks omitted). We
disregard “a pleading’s legal conclusions” but “assume all remaining factual allegations
to be true” and construe them in the light most favorable to the plaintiff. Connelly v.
Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016).
4
Palmer,” and that Plaintiff “told Browne that [Plaintiff] was on her way to Browne’s
office to pick up [Jones],” but that “by the time she got there, [Jones] had already been
taken away” to jail. J.A. 26 (Complaint) ¶ 12.
A
The District Court dismissed Plaintiff’s § 1983 deliberate indifference to serious
medical need claim, construing it as a “vulnerability to suicide claim” and concluding
that the allegations against Browne and Palmer were “insufficient to plausibly show that
Browne and Palmer acted with reckless indifference to Jones’s vulnerability to suicide.”
McDonald I, 2017 WL 3675408, at *6. We agree that the § 1983 claim warranted
dismissal, but affirm the dismissal on slightly different grounds. Before us, and in her
complaint, Plaintiff asserts a deliberate indifference to serious medical need claim that is
broader than a vulnerability to suicide claim.
“[D]eliberate indifference to serious medical needs of prisoners . . . [is conduct]
proscribed by the Eighth Amendment,” and therefore, “deliberate indifference to a
prisoner’s serious illness or injury states a cause of action under [42 U.S.C.] § 1983.”
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). To succeed on this claim, a plaintiff must
demonstrate “(1) that the defendants were deliberately indifferent to [his] medical needs
and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999) (citing Estelle, 429 U.S. at 106). The deliberate indifference element requires that
the defendant “recklessly disregard a substantial risk of serious harm,” and therefore
5
negligence or medical malpractice is not enough. Palakovic v. Wetzel, 854 F.3d 209, 227
(3d Cir. 2017) (citations omitted). Generally, deliberate indifference is met when the
defendant “(1) knows of a prisoner’s need for medical treatment but intentionally refuses
to provide it; (2) delays necessary medical treatment based on a non-medical reason; or
(3) prevents a prisoner from receiving needed or recommended medical treatment.”
Rouse, 182 F.3d at 197.
Here, the complaint does not plausibly allege that Browne and Palmer
intentionally refused to provide Jones medical care or otherwise recklessly disregarded a
substantial risk of serious harm. Rather, the complaint reveals that Jones received
medical care precisely because of Browne and Palmer’s decision to detain him. The
adequacy of that medical care, however, is not alleged to be within their control. See
Giddings v. Joseph Coleman Ctr., 473 F. Supp. 2d 617, 626 (E.D. Pa. 2007) (holding that
a parole officer’s decision to “take[] [an inmate] to a nearby prison where he would
receive, and actually did receive, immediate medical attention” for a self-inflicted cut
observed the day prior “fall[s] far short of the level of delay and denial of necessary
treatment required to rise to the level of an Eighth Amendment violation”), aff’d, 278 F.
App’x 131 (3d Cir. 2008) (non-precedential). Thus, the complaint does not plausibly
allege that Browne and Palmer intentionally refused to provide Jones medical care,
delayed providing him medical treatment, or prevented him from receiving medical care.
Therefore, the District Court appropriately dismissed Plaintiff’s deliberate indifference
6
claim.4
B
The District Court also correctly dismissed Plaintiff’s ADA claim against PAPPD
because Eleventh Amendment immunity bars the claim.
The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. amend. XI. The “immunity extends to entities that are
considered arms of the state.” Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524,
545 (3d Cir. 2007). However, Congress can abrogate the immunity when acting within
its constitutional authority. Id. at 550. In Title II of the ADA, Congress acted within its
constitutional authority in abrogating the immunity when a Title II claim concerns
“conduct that actually violates the Fourteenth Amendment.” United States v. Georgia,
546 U.S. 151, 159 (2006) (emphasis omitted).
Here, PAPPD’s Eleventh Amendment immunity bars Plaintiff’s ADA Title II
4
Plaintiff included no additional factual allegations in the amended complaint to
overcome this dismissal, and her attempts to include additional factual allegations in the
second amended complaint exceeded the limited amendments the District Court
permitted. See Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir.
2002) (“A District Court has discretion to deny a plaintiff leave to amend where the
plaintiff was put on notice as to the deficiencies in his complaint, but chose not to resolve
them.”). Therefore, the First Order’s dismissal is not impacted by the subsequent
pleadings.
7
claim. PAPPD is an arm of Pennsylvania. The complaint alleges that employees of
PAPPD “unlawfully” searched, arrested, and incarcerated Jones based upon his mental
disability and race, J.A. 26-27, 29 (Compl. ¶¶ 13, 14, 24, 30), but these conclusory
assertions, without more, are insufficient to plausibly allege that PAPPD violated Jones’
Fourteenth Amendment rights. Therefore, the District Court appropriately dismissed
Plaintiff’s ADA claim against PAPPD.5
III
Plaintiff also appeals the Second Order’s dismissal of Plaintiff’s claim under § 504
of the Rehabilitation Act, 29 U.S.C. § 794, against PAPPD. Focusing on the allegations
in the amended complaint, her § 504 claim against PAPPD is based on the actions of its
employees, Browne and Palmer.
Section 504 of the Rehabilitation Act provides, in relevant part, that “[n]o . . .
individual with a disability . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 29 U.S.C. §
794(a). To successfully assert a § 504 claim, a plaintiff must prove, among other things,
that the “disabled” person was “precluded from participating in a program or receiving a
5
To the extent Plaintiff challenges the District Court’s dismissal of her § 1983
equal protection claim against PAPPD, the First Order likewise appropriately dismissed
the claim as barred by PAPPD’s Eleventh Amendment immunity. See Kentucky v.
Graham, 473 U.S. 159, 169 n.17 (1985) (explaining that Ҥ 1983 was not intended to
abrogate a State’s Eleventh Amendment immunity”).
8
service or benefit because of [his] disability.” CG v. Pa. Dep’t of Educ., 734 F.3d 229,
235 (3d Cir. 2013) (citing Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of
Educ., 587 F.3d 176, 189 (3d Cir. 2009)). This element “requires disability to be the sole
cause of discrimination,” which means “an alternative cause is fatal to a[] [Rehabilitation
Act] claim because disability would no longer be the sole cause.” Id. at 236 n.11.
The amended complaint alleges alternative causes for Browne and Palmer’s
decision to detain of Jones: (1) because of Jones’ psychiatric disability, and (2) for Jones’
own safety because he was unstable and his car was unfit to drive. This alternative cause,
which is unrelated to Jones’ disability, is fatal to Plaintiff’s Rehabilitation Act claim, and
therefore the District Court properly dismissed this claim.
IV6
Plaintiff also appeals the Third Order, which granted summary judgment on her
(1) state-created danger claim against Browne and Palmer; (2) equal protection claim
against Palmer and Browne; (3) Monell claim against the City; and (4) state tort claims
against Browne and Palmer. Discovery produced the factual record upon which the
6
Our review of the Third Order granting summary judgment is plenary, Mylan
Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013), and we view the
facts and make all reasonable inferences in favor of the nonmovant Plaintiff, Hugh v.
Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On summary judgment,
the moving party is entitled to judgment as a matter of law when the nonmoving party
fails to make “a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
9
summary judgment motions were based, and we next recite the material facts.
Jones had a history of drug use and mental illness, including schizophrenia and
depression. One day while on probation7 and living with Plaintiff, Jones had a manic
episode and exhibited signs of paranoia. Concerned for Jones’ safety, his family
members attempted to disable his vehicle to prevent him from leaving the house. They
were unsuccessful, and Jones drove away.
Plaintiff, afraid for her son’s safety, called Jones’ probation officer, Browne,
asking that she invite Jones to her office where Plaintiff would meet Jones and
involuntarily commit him. Jones arrived at Browne’s office in a “manic” state, with
smoke emanating from the hood of his car. J.A. 382. Browne notified Plaintiff that
Jones had arrived, but after over two hours of Jones becoming increasingly agitated,
Palmer obtained an arrest warrant based on Jones’ probation violation for having an open
bill related to a DUI offense committed while on probation. By the time Plaintiff arrived
at the office, Jones had already been taken to jail.
At the jail, Jones met with several social workers and healthcare professionals who
prescribed, among other things, blood pressure medication, which Jones was allowed to
keep on his person (“KOP”). During his initial and follow-up evaluations, Jones denied
both having suicidal thoughts and engaging in prior suicide attempts. Four days after
7
Jones was on parole for an aggravated assault conviction when he committed a
DUI, but the parties usually refer to him as having been on probation.
10
entering the jail, Jones overdosed on the blood pressure medication and died.
A
We will first examine Plaintiff’s Fourteenth amendment state-created danger
claim. To prevail, a plaintiff must prove: (1) “the harm ultimately caused was
foreseeable and fairly direct,” (2) “the state actor acted in willful disregard for the safety
of the [victim],” (3) “there existed some relationship between the state and the [victim],”
and (4) “the state actors used their authority to create an opportunity that otherwise would
not have existed for the [harm] to occur.” Est. of Smith v. Marasco, 430 F.3d 140, 153
(3d Cir. 2005) (citations omitted). The second element is satisfied only when the state
actor’s conduct “shocks the conscience.” Id. The “exact degree of wrongfulness
necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a
particular case,” and when the state actor is in a “hyperpressurized environment” (as
opposed to a situation where the state actor has “the luxury of proceeding in a deliberate
fashion”) conscience-shocking behavior usually requires a showing that the state official
“deliberately harmed the victim.” Id. (citation omitted).
Here, Browne and Palmer were in a hyperpressurized environment. One officer
observed Jones arrive at PAPPD’s office driving “very erratically, driving from one side
to the other trying to park the vehicle almost hitting people out of control,” J.A. 439, with
his car smoking from the hood. Browne explained that when Jones arrived at her office,
he was in a “manic” state, his “demeanor was just kind of all over the place, [he] was
11
very loud,” “he was bouncing from question to question,” and “[a]t one point, he bust out
in song and sung [Browne] a full song very loudly.” J.A. 382. Browne’s supervisor,
Palmer, also met with Jones and explained that Jones was “extremely agitated,”
“rambling,” “pushing the table,” and that he “banged the wall” with his hands. J.A. 429-
30. Palmer recounted that Jones was frustrated because he “wanted to go to New York to
save his brother from ISIS.” J.A. 430. After over two hours of Jones becoming
increasingly agitated and expressing an intent to leave the state in an unfit automobile,
Browne and Palmer detained Jones for a violation of probation and took him “into
custody . . . for his own safety.” J.A. 237. Given Jones’ behavior and Browne and
Palmer’s concerns for his safety, no reasonable jury could have found that Browne and
Palmer’s decision to detain Jones, particularly given that they obtained a warrant for his
arrest based upon an independent violation of probation, was conscience-shocking
behavior. Therefore, the District Court properly granted summary judgment in favor of
Browne and Palmer on Plaintiff’s state-created danger claim.
B
The District Court also correctly granted summary judgment in favor of Browne
and Palmer on Plaintiff’s equal protection “class of one” claim.
To prevail on a Fourteenth Amendment equal protection clause claim under a
“class of one” theory, a plaintiff must prove “(1) the defendant treated him differently
from others similarly situated, (2) the defendant did so intentionally, and (3) there was no
12
rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d
225, 239 (3d Cir. 2006) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000)).
Here, Plaintiff has not satisfied the first and third elements. Plaintiff failed to
identify similarly situated individuals who Browne and Palmer treated differently. See
id. at 239. Additionally, given Jones’ behavior at the probation office coupled with the
fact that Browne and Palmer learned that Jones “was in technical violation [of his
probation],” J.A. 431, and that he intended to leave the state, which itself would violate
the terms of his probation, no reasonable juror could find that Browne and Palmer had no
rational basis for detaining Jones. Therefore, the District Court properly granted
summary judgment in favor of Browne and Palmer on this claim.
C
The District Court also correctly granted summary judgment in favor of the City
on Plaintiff’s § 1983 Monell claim.
Under Monell, a plaintiff “must demonstrate that the violation of his rights was
caused by either a policy or a custom of the municipality.” Berg v. Cnty. of Allegheny,
219 F.3d 261, 275 (3d Cir. 2000) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978)). Thus, the plaintiff must “identif[y] a municipal policy or custom [that he
claims violates his rights and then . . .] he must demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the injury alleged.” Id. at 276
13(quotation marks and citation omitted). If “the policy or custom does not facially violate
federal law, causation can be established only by demonstrat[ing] that the municipal
action was taken with ‘deliberate indifference’ as to its known or obvious consequences.”
Id. (quotation marks and citation omitted). In other words, “[a] showing of simple or
even heightened negligence will not suffice.” Id.There are two policies that may be implicated here, but neither provides a basis for
relief. First, the City maintained a policy on inmate suicide prevention (the “Policy”).
The Policy instructs “[a]ll correctional staff [to] remain alert for indications that inmates
are possible self-injury risks” and requires them to conduct “a formal, self-injury risk
assessment process, and standardized observation and intervention procedures” to ensure
proper monitoring. J.A. 443.8 Here, staff members conducted two self-harm evaluations
of Jones during his four-day imprisonment, and, during both evaluations, Jones denied
having suicidal thoughts or engaging in prior suicide attempts. Given these denials,
which contributed to a staff member’s assessment that Jones’ “[s]uicide risk appear[ed]
low at this time,” J.A. 258, no reasonable juror could find that the City was the “moving
force” behind Jones’ suicide, Berg, 219 F.3d at 276, or that the City was deliberately
indifferent to a known or obvious risk of Jones committing suicide.
The second policy involves allowing inmates to keep certain medications in their
8
Plaintiff does not argue that the Policy is facially invalid, but instead asserts that
staff acting under the Policy improperly failed to prevent Jones’ suicide.
14
possession, rather than requiring them to obtain the medication from the dispensary. Dr.
Vivian Gandy, a healthcare provider at the jail, explained that “[n]ormally for specific
medication, narcotics, seizure meds, those meds would not be given KOP, but for
hypertensive meds, that could be KOP unless there was some specific reason for that
individual not to have it on [his] person” and “[t]here was no reason” for her to order ‘no
KOP’ here because she did not know of Jones’ prior suicide attempts and Jones did not
say that he was having suicidal thoughts. D.C. Dkt. No. 93-14. Even if in hindsight the
healthcare professionals acting under these policies improperly assessed Jones’ suicide
risk before permitting him to keep his blood pressure medication on his person, this does
not establish that there was a policy of indifference that would subject the City to Monell
liability. See Palakovic, 854 F.3d at 228 (explaining that where there is a “dispute . . .
over the adequacy of the treatment, federal courts are generally reluctant to second guess
medical judgments and to constitutionalize claims which sound in state tort law,” and will
“[d]efer[]” to prison medical authorities’ “diagnosis and treatment of patients” (quotation
marks omitted)). Therefore, the District Court properly granted summary judgment in
favor of the City on Plaintiff’s Monell claim.
D
Finally, the District Court correctly granted summary judgment in favor of
Browne and Palmer on Plaintiff’s state law tort claims because they were protected by
15
sovereign immunity when their actions led to Jones’ arrest and incarceration.
Pennsylvania “officials and employees acting within the scope of their duties[]
shall continue to enjoy sovereign immunity and official immunity and remain immune
from suit except [when Pennsylvania] specifically waive[s] the immunity.” 1 Pa. Cons.
Stat. Ann. § 2310. Pennsylvania looks to the Restatement (Second) of Agency to
determine whether conduct is within the scope of one’s employment. See Butler v. Flo-
Ron Vending Co., 557 A.2d 730, 736 (Pa. Super. Ct. 1989). An employee acts within the
scope of her employment when the employee’s conduct (1) “is the kind [the employee] is
employed to perform,” (2) “occurs substantially within the authorized time and space
limits,” and (3) “is actuated, at least in part, by a purpose to serve the [employer].”
Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting Restatement (Second)
of Agency § 228, analyzing Pennsylvania sovereign immunity). Actions that are not
expressly authorized by the employer may still be within the scope of employment “if
they are clearly incidental to the [employer]’s business.” Shuman Estate v. Weber, 419
A.2d 169, 173 (Pa. Super. Ct. 1980).
Plaintiff does not dispute that Browne and Palmer obtained a warrant for Jones’
arrest for a technical violation of probation or that they did so during their workday and
while they were at the PAPPD office. Plaintiff nevertheless argues that Browne and
Palmer were not acting within the scope of their employment because they “lied to the
judge directly” in securing the warrant. Appellant Br. at 23. Plaintiff, however, concedes
16
that “attempting to leave the state . . . is a technical [] violation” of Jones’ supervision,
Appellant Br. at 23, and the record shows that Jones “wanted to go to New York to save
his brother from ISIS,” J.A. 430. Plaintiff also does not dispute that Jones had been
arrested for a DUI offense, which was a violation of his probation. Given Jones’ stated
intention to leave Pennsylvania, which itself would violate his probation, and the fact his
recent DUI arrest violated his probation, nothing in the record suggests that Browne and
Palmer sought the warrant for a reason unconnected to their employment. Because no
reasonable juror could find that Browne and Palmer acted outside the scope of their
employment, the District Court properly held that they were entitled to sovereign
immunity on Plaintiff’s state law claims.9
V
For the foregoing reasons, we will affirm.
9
We will not consider Plaintiff’s Fourth Amendment argument against Browne
and Palmer because Plaintiff did not plead a Fourth Amendment unlawful seizure claim
against them in either her initial or first amended complaint. Furthermore, her allegations
concerning this claim in the second amended complaint were struck as beyond the scope
of the permitted amendment and Plaintiff did not appeal the order striking those
allegations. See Hamer v. LivaNova Deutschland GmbH, 994 F.3d 173, 179 n.23 (3d
Cir. 2021) (“Because those claims were not raised in his complaint, we cannot consider
them now as a basis for appeal.”).
17