Dejesus et al v. The State of Delaware et al

Filing 79

MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 7/26/2021. (nmf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ORLANDO & PAULETTE
DEJESUS, FATHER AND
MOTHER AND NEXT OF KIN OF
BLAISE DEJESUS, DECEASED,

Plaintiffs,

Civil Action No. 15-1065-CFC

v.
LT. TODD DRACE, et al.,
Defendants.

Daniel C. Herr, LAW OFFICE OF DANIEL C. HERR LLC, Wilmington,
Delaware

Counsel for Plaintiffs
Ryan T. Costa, STATE OF DELA WARE DEPARTMENT OF WSTICE,
Wilmington, Delaware

Counsel for Defendants

MEMORANDUM OPINION

July 26, 2021
Wilmington, Delaware

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This case comes to me on remand from the Third Circuit. Pending before
me is Defendants Todd Drace, John Kirlin, and Tiffani Starkey's renewed motion
for summary judgment of the deliberate indifference claim for damages Plaintiffs
filed under 42 U.S.C. § 1983 . D.I. 73 . Defendants are correctional officers
employed by the Delaware Department of Corrections (DOC). They worked in the
segregated housing unit (SHU) of the James T. Vaughn Co1Tectional Center the
day Blaise DeJesus committed suicide in an SHU cell. Plaintiffs, the parents of
DeJesus, base their§ 1983 claim on alleged violations of the Eighth and
Fourteenth Amendments of the United States Constitution.
I granted Defendants' original motion for summary judgment after
determining that Defendants were not deliberately indifferent to DeJesus's
vulnerability to suicide. Plaintiffs appealed that decision. The Third Circuit found
that Plaintiffs had alleged a claim of deliberate indifference to a serious medical
need that was "distinct from a claim that Defendants were deliberately indifferent
to a vulnerability to suicide." DeJesus v. Delaware, 833 F. App'x 936, 939 (3d
Cir. 2020). The Court held that "[b]ecause these are two different claims, and the
District Court did not examine one of them," id. at 940, a remand was warranted
for me "to determine whether Defendants are entitled to summary judgment on

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Plaintiffs' claim that Defendants were deliberately indifferent to DeJesus's serious
medical need," id. at 937. I have studied the Third Circuit's decision and the
parties' briefing filed in connection with Defendants' motion and I agree with
Defendants that they are entitled to summary judgment.

I.

BACKGROUND
The following statement of facts is taken from Plaintiffs' brief filed in

opposition to Defendants' motion:

Background . . . The parties agree that DeJesus
came to the Specialized Housing Unit (the "SHU") in
early August 2014 after taking various opiates. Medical
professionals had just discharged him from the prison
infirmary.

****
Inmate Testimony: Inmate Warren Wilson
testified that he was housed in the SHU and recalled
DeJesus coming onto Wilson's tier in August 2014.
Wilson explained that DeJesus was "disheveled," "going
through withdrawal," and that he was not supposed to be
in the SHU. Wilson explained he overheard DeJesus
saying this to another inmate, Derris Gibson. Wilson
further explained that "[e]very time the correctional
officers come on the tier, he kept telling them he needed
to talk to somebody, that, you know, he - he wasn't in his
right state of mind and that he needed some help, and
they just kept brushing him off." Wilson further testified
that DeJesus told the correctional officers that "he
wanted to see somebody. He wanted to talk to
somebody." Wilson overheard this during two or three
occasions that evening. Each time, DeJesus said "I need
to see somebody, you know, I'm sick. I'm not right,

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pretty much." Wilson overheard DeJesus speaking to
Kirlin and Starkey.
Gibson testified that he recalled DeJesus coming
into the SHU. Gibson testified he overheard DeJesus tell
correctional officers that he needed a phone call. Gibson
testified that he knew DeJesus was withdrawing from
drugs. Gibson overheard DeJesus tell Drace that he was
feeling anxious, and Drace told DeJesus to "lay his ass
down." Gibson further testified that he believes he
overheard DeJesus tell Kirlin that he needed to see
mental health and that he "[couldn't] take being [there]."
Gibson also recalled DeJesus mention mental health and
the phone call to Starkey.
Inmate Jason Gryzbowski also recalled DeJesus
coming into the SHU. Gryzbowski testified that DeJesus
complained to [] Kirlin and Starkey every time rounds
were being made, stating he "can't take being in the
room." DeJesus said he needed to speak with someone.
Kirlin and Starkey "kept blowing him off." DeJesus
complained about this five to six times.
Last, Michael Jones recalled DeJesus coming into
the SHU. He heard DeJesus asking for a phone call, but
Starkey mocked DeJesus to Kirlin saying that DeJesus
was "crying" and then both Starkey and Kirlin laughed.
DeJesus also said he needed to speak to someone and that
he was not supposed to be in the SHU.

****
The DOC Investigation Results: The DOC
concluded that Kirlin violated policy by failing to ensure
that proper wellness checks ("checks and punches")
occurred every thirty minutes. In fact, the DOC
concluded that no security checks and phone punches
were conducted for approximately two hours. The DOC
explained that such checks are required to ensure the
"security of both staff and offenders."
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Kirlin claims he did not know DeJesus was having
mental health issues, but admits that [if] he would have
known this, he would have "cuffed him and called, and
moved him to the interview room, and then notify mental
health to come talk with him." As a result, there was a
known protocol in place for mental health distress
precisely like DeJesus's.
D.I. 76 at 1-4 (citations omitted). 1

II.

LEGAL STANDARDS
A court must grant summary judgment "if the movant shows that 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). The moving party bears the burden of
demonstrating the absence of any genuine issues of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the burden of persuasion at trial would be on

1

I copied Plaintiffs' statement of facts in its entirety except in three respects: I
deleted a reference in a heading to the DOC's suicide prevention policy, a
description of that policy, and a statement that DeJesus hung himself after DOC
employees failed to conduct proper wellness checks. I made these deletions
because Plaintiffs emphasized on appeal, and the Third Circuit agreed, that
Plaintiffs' vulnerability to suicide claim was distinct from their serious medical
need claim. See DeJesus, 833 F. App'x at 939 (noting that Plaintiffs had argued
that they had "established a sufficient record to show [Defendants] were
deliberately indifferent to [DeJ esus' s] serious medical condition (aside from
suicide[] itself)") (alterations in original) (emphasis added) (citations omitted); id.
(holding that Plaintiffs' claim of deliberate indifference to a serious medical need
is "distinct from [the] claim that Defendants were deliberately indifferent to a
vulnerability to suicide"); id. at 940 (holding that indifference to vulnerability to
suicide and indifference to a serious medical rieed are "two different claims, and
the District Court did not examine one of them").
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the non-moving party, then the moving party may satisfy its burden of production
by pointing to an absence of evidence supporting the non-moving party's case,
after which the burden of production then shifts to the non-movant to demonstrate
the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Williams v. Borough of West
Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989).

Material facts are those "that could affect the outcome" of the proceeding.
Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). "[A] dispute about a

material fact is genuine if the evidence is sufficient to permit a reasonable jury to
return a verdict for the non-moving party." Id. (internal quotation marks omitted).
A non-moving party asserting that a fact is genuinely disputed must support such
an assertion by: "(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations, ... admissions, interrogatory answers, or other materials;
or (B) showing that the materials cited [by the opposing party] do not establish the
absence ... of a genuine dispute .... " Fed. R. Civ. P. 56(c){l). The non-moving
party's evidence "must amount to more than a scintilla, but may amount to less (in
the evaluation of the court) than a preponderance." Williams, 891 F.2d at 460-61.
The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Wishldn v.

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Potter, 4 76 F .3d 180, 184 (3d Cir. 2007). "[T]he facts asserted by the nonmoving
party, if supported by affidavits or other evidentiary material, must be regarded as
true ...." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.
1996). If "there is any evidence in the record from any source from which a
reasonable inference in the [nonmoving party's] favor may be drawn, the moving
party simply cannot obtain a summary judgment." Id.

III.

DISCUSSION
In remanding this case, the Third Circuit instructed that when a plaintiff

seeks to hold a prison official liable for deliberate indifference to a serious medical
need under the Eighth Amendment or the Due Process Clause of the Fourteenth
Amendment, the plaintiff must show that three circumstances existed: "( 1) he had a
serious medical need, (2) defendants were deliberately indifferent to that need, and
(3) the deliberate indifference caused harm or physical injury to the plaintiff."
DeJesus, 833 F App'x at 940 (citations omitted). I will grant Defendants' motion
because I find that the record evidence does not support a finding that DeJesus had
a serious medical need aside from vulnerability to suicide, that Defendants were
deliberately indifferent to that need, or that Defendants' deliberate indifference
caused a harm or injury to DeJesus distinct from his vulnerability to suicide.

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A.

Whether DeJesus Suffered from a Serious Medical Need

Plaintiffs argue that the medical need Defendants were deliberately
indifferent to was "DeJesus' s serious mental anguish and distress." D .I. 76 at 5.
But they do not elaborate further on what symptoms this mental anguish and
distress consisted of outside of DeJesus' s vulnerability to suicide; nor do they
claim that DeJesus had any specific mental health illness. They do not cite any
case that examines "serious mental anguish and distress" as an independent serious
medical need unassociated with a mental illness or a vulnerability to suicide. The
only case they cite where a mental health condition is the identified serious
medical need in a deliberate indifference claim is Palakovic v. Wetzel, where,
unlike here, the inmate "was diagnosed with a number of serious mental disorders,
including alcohol dependence, anti-social personality disorder, and impulse control
disorder" and "exhibited signs of depression." 854 F.3d 209, 216 (3d Cir. 2017).
Plaintiffs also argue that "a failure to respond to an inmate's request for
medical care is sufficient to establish a 'serious' medical condition." D.I. 76 at 6.
But this argument collapses the threshold inquiry of whether DeJesus had a serious
medical need with the independent question of whether Defendants were
deliberately indifferent to that need.
In Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d
326,347 (3d Cir. 1987), the Third Circuit held that a medical need is serious if (1)

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it "has been diagnosed by a physician as requiring treatment," (2) it "is so obvious
that a lay person would easily recognize the necessity for a doctor's attention," or
(3) where the denial of treatment would result in the "unnecessary and wanton
infliction of pain[,] ... a life-long handicap or permanent loss." Here, the record
does not support a finding that DeJesus suffered from a serious medical need
independent of his vulnerability to suicide.
First, there is no record evidence that DeJesus's mental distress had been
diagnosed by a physician as requiring treatment. Second, the record evidence does
not suggest that DeJesus' s condition or the statements he made while in the SHU
would have made his mental distress and anguish so obvious that a lay person
would have recognized the necessity for medical attention. This is so especially
given the fact that medical professionals had cleared and discharged DeJesus from
the infirmary on the same day and just before Defendants are alleged to have
encountered DeJesus.
While there is inmate testimony that DeJesus looked disheveled and that he
told Defendants he wanted to speak to someone, wanted to leave the SHU, did not
feel well, and wanted "mental health," this testimony, even if true, does not support
a finding that medical attention was obviously urgently necessary. That DeJesus
looked "disheveled" would not have made it obvious that he needed immediate
medical attention. DeJesus may have looked disheveled for many reasons

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unrelated to experiencing serious mental distress. DeJesus's alleged statements to
Officers Kirlin and Starkey that he needed to speak to (or call) someone, that he
needed help, and that he couldn't take being in the SHU also would not have made
it obvious to a layperson that he was experiencing serious mental anguish and
distress. DeJesus may have wanted to speak to someone, receive help, and leave
the SHU for reasons that had no connection to a mental health condition. Prisons
in general, and special housing units especially, are not pleasant places to be. It's
hard to conceive of an individual who would not feel anguish and distress if
confined to a special housing unit. In the same conversations in which DeJesus
stated that he needed to speak to someone and needed help, he also said he "wasn't
supposed to be in the SHU." D.I. 76, Ex. B at 8: 15, see also D.I. 76, Ex. Eat
14:14-16. As common sense suggests and as Officer Starkey noted, "it is not
uncommon for inmates to say that they should not be in SHU." D.I. 75 at A-34 ,r
3. Even ifDeJesus had requested to one officer that he be permitted to talk to
"mental health," that statement by itself would not have made it so obvious to a
layperson that DeJesus was experiencing "serious mental anguish and distress" that
urgently required medical attention.
Plaintiffs argue that "O]ust because a mental health condition is not readily
visible (such as, perhaps, a physical trauma) does not render it any less serious."
D.I. 76 at 11. And, of course, it is often the case that a mental illness or a hidden

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physical condition such as internal bleeding or a cancer is very "serious," as that
term is used generally. But "serious medical need" carries a specific meaning in
the context of§ 1983 deliberate indifference claims. Unless the inmate's condition
was diagnosed by a doctor as requiring treatment, the condition is not a "serious
medical need" if it would not have been obvious to a layperson that the inmate
needed medical care. This rule makes sense. We don't require prison guards to
earn medical degrees and thus we don't hold them liable for their failure or
inability to diagnose medical conditions that a layperson would not recognize.
Third, Plaintiffs do not allege that DeJesus suffered "unnecessary and
wanton infliction" of pain, permanent loss, or injury aside from the anguish and
distress he suffered that made him vulnerable to suicide. 2 Nor could they. Because

2

I note that a claim of deliberate indifference to an inmate's vulnerability to
suicide can encompass deliberate indifference to the inmate's anguish and distress
that led him to attempt or commit suicide-i.e., that made him vulnerable to
suicide. See, e.g., Hensley v. Bucks Cty. Corr. Facility, 2016 WL 4247637, at
* I 0-11 (E.D. Pa. Aug. 11, 2016) (holding that plaintiff "sufficiently alleged that he
had a particular vulnerability to suicide" where he had attempted suicide before
and had complained that he "was experiencing undue mental stress" and was
"starting to get depressed and feel like [he is] losing [his] mind"); Carroll v.
Lancaster Cty., 301 F. Supp. 3d 486, 500 (E.D. Pa. Mar. 14, 2018) (finding that
plaintiffs supported "their argument that [the decedent] had a particular
vulnerability to suicide" in part by pointing to an intake form that showed that
decedent "had been the victim of a sexual offense, lacked close friends or family in
the community, had recently experienced a significant loss, was worried about
major problems, had a history of mental health treatment and was overly anxious,
panicked, afraid or angry"). When I previously addressed Plaintiffs' deliberate
indifference claim based on DeJesus's vulnerability to suicide, I considered the
mental anguish and distress he suffered that led him to commit suicide.
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it would not have been obvious to a layperson that DeJesus was experiencing
serious mental anguish and distress distinct from his vulnerability to suicide and
because there is no evidence that Defendants knew that DeJesus was experiencing
serious mental anguish and distress distinct from his vulnerability to suicide, it
cannot be said that Defendants unnecessarily and wantonly inflicted on him pain or
injury distinct from his vulnerability to suicide.
In short, because the record evidence does not support a finding that DeJesus
suffered from a serious medical need aside from his vulnerability to suicide,
Plaintiffs' distinct claim of deliberate indifference to a serious medical need fails
as a matter of law.

B.

Whether Defendants Were Deliberately Indifferent to DeJesus's
Need

Even if Plaintiffs could establish that DeJesus suffered from a serious
medical need aside from vulnerability to suicide, the record evidence does not
support a finding that Defendants were deliberately indifferent to that need. To
show deliberate indifference, a plaintiff must show "that the official knows of and
disregards an excessive risk to inmate health or safety." Natale v. Camden Cty.
Corr. Facility, 318 F .3d 575, 582 (3d Cir. 2003) (internal quotation marks and

citation omitted). The officers must be both "aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and ...
draw that inference." Id. (citation omitted).
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Here, Plaintiffs have not adduced record evidence showing that Defendants
knew, were aware of, or failed to respond to an excessive risk to DeJesus's health
or safety distinct from a vulnerability to suicide. Plaintiffs argue that DeJesus' s
dishevelment, his request to speak with someone and make a phone call, his
statements that he did not belong in the SHU, felt sick and was "not right" and
anxious, and his potentially asking to speak "with mental health" raise a genuine
issue of material fact that Defendants knew and were deliberately indifferent to
DeJesus's serious mental distress. D.I. 76 at 6-8. But these statements indicated
at most that DeJesus was possibly experiencing mental distress. They do not rise
to the level of showing that Defendants inferred that DeJesus was experiencing
mental distress and were deliberately indifferent to that distress. See Hargrove v.

City of Phi/a., 1995 WL 584490, at *2 (E.D. Pa. Oct. 3, 1995) ("An officer is
deliberately indifferent to the medical needs of a person in custody when there is 'a
strong likelihood, rather than a mere possibility, that ... harm will occur' to the
person ...." (citing Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d Cir.
1991))). Plaintiffs' argument is essentially that Defendants should have recognized
from DeJesus's statements that he was in severe mental distress. But deliberate
indifference "requires more than evidence that the defendants should have
recognized the excessive risk and responded to it; it requires evidence that the

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defendant must have recognized the excessive risk and ignored it." Beers-Capitol
v. Whetzel, 256 F.3d 120, 138 (3d Cir. 2001) (emphasis in original).
Plaintiffs also argue that Defendants' failure to conduct proper wellness
checks on DeJesus supports their argument that Defendants were deliberately
indifferent. D.I. 76 at 8-9. While the record does contain evidence that Officer
Kirlin was negligent in failing to complete area checks and phone punches in the
SHU, negligence does not amount to deliberate indifference. See Farmer v.
Brennan, 511 U.S. 825, 835 (1994) ("[D]eliberate indifference entails something
more than mere negligence ....").
Lastly, there is inmate testimony in the record that Officer Drace responded
with sarcasm to DeJesus's request for a phone call, D.I. 76, Ex.Cat 14:4-14, that
Officers Starkey and Kirlin laughed when DeJesus was crying while asking for a
phone call, D.I. 76, Ex.Eat 10:17-20, 12:4-21, and that Officers Starkey and
Kirlin brushed offDeJesus's requests, D.I. 76, Ex. D at 9:20-22. These reactions
and responses, though perhaps not sufficiently sympathetic to DeJesus's emotional
state at the time, do not rise to the level of deliberate indifference.
In short, the record, viewed in the light most favorable to Plaintiffs, does not
support a finding that DeJesus suffered from a serious medical need aside from
vulnerability to suicide or that Defendants acted with deliberate indifference to a

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serious medical need. Accordingly, Plaintiffs' claim of deliberate indifference to a
serious medical need fails as a matter of law.

C.

Whether Defendants' Deliberate Indifference Caused Harm or
Physical Injury to DeJesus

The record evidence also does not support a finding that Defendants' alleged
deliberate indifference caused harm or physical injury to DeJesus aside from his
vulnerability to suicide. As discussed above, Plaintiffs emphasized on appeal, and
the Third Circuit agreed, that Plaintiffs' vulnerability to suicide claim was distinct
from their serious medical need claim. Plaintiffs have not identified and there is no
record evidence on which to base a finding of a resulting harm or injury that
DeJesus suffered separate from the distress that made DeJesus vulnerable to and
ultimately a victim of suicide.

IV.

CONCLUSION
For the foregoing reasons, I will grant Defendants' motion for summary

judgment.
The Court will enter an order consistent with this Memorandum Opinion.

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