SUNDQUIST v. KOVICH et al

Filing 57

OPINION. Signed by Judge Joel A. Pisano on 7/1/2014. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

______________________________
RICHARD SUNDQUIST,
Plaintiff,
v.
STACY UDIJOHN, et al.
Defendants.

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Civil No. 11-05364 (JAP)
OPINION

PISANO, District Judge.
Plaintiff Richard Sundquist filed this current action on September 16, 2011, alleging that his
constitutional rights were violated when he was not afforded a timely civil commitment hearing in
accordance with New Jersey’s civil commitment statute. Before this Court are two motions for
summary judgment: one filed by Plaintiff and one filed by Defendants [ECF Nos. 48, 49]. The
Court decides these matters without oral argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons set forth below, the Court will deny Plaintiff's motion for summary judgment and
grant Defendants’ motion for summary judgment.
I.

Background
The Court finds that the following facts are supported by the evidence of record and are

undisputed. 1

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These facts are derived from Plaintiff's Statement of Undisputed Facts and the exhibits attached to
Plaintiff’s Motion, Defendants' Statement of Material Facts and the exhibits attached to Defendants' Motion,
as well as the other filings of record in this case.

At all times relevant here, the Office of Court Coordination (“OCC”) at Trenton Psychiatric
Hospital (“TPH”) employed Donald Newsom, Principal Clerk Typist, Stacy Udijohn, Clerk Typist,
and Manoj Thomas, Health Information Management Administrator and Privacy Officer. Mr.
Newsom is not a defendant here. Defendant Thomas was in charge of the OCC. Defendant Dr.
Lawrence Rossi is the Clinical Director of TPH, and he supervised the OCC. Defendant Dr. Evan
Feibusch is the Chief of Psychiatry at TPH. He reports to Dr. Rossi, and supervise the members of
the psychiatric staff. Defendant Theresa McQuaide is the Chief Executive Officer of TPH.
Generally, the OCC unit operates as a “clearing house” in that it processes information
received from the courts and sends it out to designated areas. If a court orders a patient to be civilly
committed, the OCC notifies the treatment team that the commitment process needs to be started.
Once the information is passed on to the patient’s treatment team, it is up to the treatment team to
decide what to do with the patient and begin the civil commitment process. The OCC’s job is only
to collect information, enter the data, and pass it along. The OCC does not follow-up any
notification sent to a treatment team, apparently because the treatment teams know to immediately
start the commitment process as part of their employment responsibilities. The OCC would not
know if the evaluations were not done by the treatment teams unless the OCC was contacted by
someone from the courts asking where the evaluations were on a patient.
The treatment team meets with the patient to see if he meets commitment criteria and, if so,
prepares the appropriate certifications for the court. Once the commitment papers are prepared,
they are not sent back to the OCC, but are rather sent to the Admissions Unit for forwarding to the
court for a temporary commitment order to be signed. Once the order is signed, it is returned to the
OCC, which then forwards it to the county adjuster who schedules the initial hearing.

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Plaintiff Richard Sundquist was admitted to the TPH on June 24, 2009 pursuant to an order
dated May 8, 2009 by Judge Morley in Burlington County, New Jersey, for evaluation of his
competency to stand trial on criminal charges. The order scheduled a competency hearing for
August 21, 2009. Patients committed pursuant to such an order are referred to administratively as
on “IST” (incompetent to stand trial) status. On August 7, 2009, Dr. Carolina E. Diao prepared a
report finding Plaintiff incompetent to stand trial. This report was sent to the Court on August 12,
2009. After the hearing held on August 21, 2009, Judge Morley’s law clerk called the OCC. The
clerk told Mr. Newsom that a new hearing had been scheduled for November 6, 2009, and that a
report would be due two weeks prior to that date. No former order was entered.
On October 8, 2009, however, Judge Morley entered an order dismissing Plaintiff’s criminal
charges and ordering that he be civilly committed pursuant to N.J. Stat. Ann. § 30:4–27.20. The
order also required the prosecutor’s office to forward certain discovery materials and the reason that
the court was seeking civil commitment to the county adjuster, who was thereafter ordered to
forward the documents to the judge presiding over the civil commitment hearing, to the defendant’s
attorney, and to the attorney who would represent the State at the hearing. This order was not sent
to the OCC.
Because no one at TPH had notice that Plaintiff’s legal status had changed, Dr. Rumiana
Radic prepared the previously-ordered report on October 20, 2009, finding that the Plaintiff was
now competent to stand trial. On October 26, 2009, Mr. Newsom called the Court to see if Dr.
Radic had to attend the scheduled November 6, 2009 hearing, and asked if Plaintiff could be sent
back to jail because Dr. Radic had found Plaintiff competent. He was told that the hearing was not
on the schedule and that someone would get back to him. On October 27, 2009, Judge Morely’s
team leader spoke to Mr. Newsom and informed him of the dismissal and civil commitment order,

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and faxed him a copy of the October 8, 2009 Order. Plaintiff’s criminal attorney confirmed that he
forgot to send a copy of the order to TPH, and apologized to Mr. Newsom.
On the same day, October 27, 2009, Mr. Newsom sent an email to Anita Tillman and Dr.
Radic, and copied Defendants Feibusch, Thomas, and Udijohn, as well as Drs. Georges Dubois and
Rajani Patel, and David Kensler. Drs. Dubois and Patel were two other psychiatrists in Plaintiff’s
unit. Mr. Newsom advised them of his discovery and informed them that “the team must begin the
commitment process.” See Certification of Stacy Udijohn (“Udijohn Cert.”) Ex. F. Ms. Tillman is
the program coordinator of the treatment team on Drake East Two, the unit to which Plaintiff was
assigned. It was her responsibility to make sure the evaluations for civil commitment were
completed and that the civil commitment process was done in a timely matter. Mr. Newsom also
faxed a copy of the Order to Ms. Tillman. Mr. Kensler, the Complex Administrator of the unit in
which Plaintiff resided, sent an email to Mr. Newsom, Ms. Tillman, and Dr. Radic in reply to Mr.
Newsom’s email, asking if Plaintiff met the commitment criteria. The record indicates that there
was no reply to this email until November 17, 2009.
On November 17, 2009, Defendant Udijohn learned for the first time that nothing had been
done in response to the emails sent by Mr. Newsom and Mr. Kensler. She then sent an email
directed to Mr. Kensler, Ms. Tillman, Dr. Dubois, and Dr. Patel, informing them of the lapse and
inquiring to if Plaintiff met the criteria to be civilly committed. Ms. Tillman responded in an email
that she had reviewed the case and discovered Plaintiff “was being carried by Unit Nursing staff as
an IST and [she] did correct the problem this morning.” Id. at Ex. G.
Plaintiff learned that the criminal charges against him had been dismissed during a meeting
with his treatment team on October 29, 2009. It is disputed whether or not Plaintiff informed a
social worker and psychologist at that time that he wished to be released. On November 18, 2009,

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Plaintiff informed Marilyn Spensley, a senior advocate with Disability Rights New Jersey who was
working with him in an unrelated forced medication case, that he was being held without a valid
commitment order. It does not appear that Plaintiff alerted anyone else that he was being held
without a valid commitment order.
On November 19, 2009, Drs. Patel and Dubois prepared Clinical Certifications for
Involuntary Commitment for Plaintiff, and an Application for Involuntary Commitment was
presented to the Court that same day. On November 20, 2009, a Temporary Order for Involuntary
Commitment was entered, scheduling a hearing on the need for continued involuntary commitment
for December 10, 2009. This hearing was scheduled by the appropriate county adjuster. When the
court calendar was finalized the Friday before the week the hearing was scheduled for, the hearing
date was moved up to December 9, 2009. On December 9, 2009, the initial civil commitment
hearing was conducted, and an order civilly committing Plaintiff was entered. Plaintiff was placed
on continued commitment status until September 9, 2010, at which time he was placed on Continual
Extension Pending Placement (“CEPP”) Status. Plaintiff was eventually discharged on October 29,
2010. There is no evidence that there has been any other instances prior to Plaintiff where a patient
at TPH did not have a timely civil commitment hearing. Plaintiff would have been treated no
differently if he was on IST or involuntary commitment status.
Plaintiff instituted this action on September 16, 2011, alleging that the Defendants violated
N.J. Stat. Ann. § 30:4–27.10, which requires that a person involuntarily committed to a psychiatric
hospital have a civil commitment hearing within twenty days of initial inpatient admission. Under
the First Count of Plaintiff’s Complaint, Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging
that this detention without a hearing for sixty-three days denied Plaintiff of liberty without due
process of law, constituting a violation of his rights under the Fifth and Fourteenth Amendments of

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the United States Constitution. The Second Count alleges that the Defendants subjected Plaintiff to
an unreasonable seizure of his person in violation of the Fourth Amendment, and the Third Count
alleges that Defendants denied Plaintiff the day in court to which he was entitled in violation of the
First Amendment.
On July 17, 2010, this Court granted in part and denied in part Defendants’ motion for
summary judgment. The case was allowed to proceed against Defendants Udijohn, McQuaide, and
Rossi in their individual capacities. Plaintiff then obtained leave from the Court to file a First
Amended Complaint. This Amended Complaint added two new defendants, Mr. Thomas and Dr.
Feibusch, but the factual allegations and claims remained unchanged from the original complaint.
After discovery concluded, these pending motions for summary judgment were filed.
II.

Standard of Review
Federal Rule of Civil Procedure 56(a) provides that “a court shall 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 substantive law identifies
which facts are material. “Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact raises a “genuine” issue “if the evidence is
such that a reasonable jury could return a verdict” for the non-moving party. Healy v. N.Y. Life Ins.
Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988).
The Court must consider all facts and their logical inferences in the light most favorable to
the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
The Court shall not “weigh the evidence and determine the truth of the matter,” but need determine
only whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. While the moving

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party bears the initial burden of showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party to “set forth specific facts showing that
there is a genuine issue for trial.” Id. at 250. If the nonmoving party has failed “to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial, . . . there can be no genuine issue of material fact, since a
complete failure of proof concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir.
1992) (quotation omitted). If the non-moving party fails to demonstrate proof beyond a “mere
scintilla” of evidence that a genuine issue of material fact exists, then the Court must grant summary
judgment. Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1363 (3d Cir. 1992).
III.

Discussion
In their motion for summary judgment, Defendants argue that Plaintiff has failed to establish

a constitutional violation and that, even if he had, Defendants are entitled to qualified immunity.
Defendants also argue that Defendants Rossi, McQuaide, Feibusch, and Thomas cannot be found
liable, because Plaintiff is suing them on a theory of respondeat superior. Plaintiff has likewise
moved for summary judgment, arguing that each Defendant has violated his right to due process
under the law.
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his
constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .

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42 U.S.C. § 1983. Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the
violation of a right secured by the Constitution or laws of the United States, and second, that the
alleged deprivation was committed or caused by a person acting under color of state law. See
Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also
West v. Atkins, 487 U.S. 42, 48 (1988).
“Under § 1983, every person who, acting under color of state law, ‘subjects or causes to be
subjected’ another person to a deprivation of a federally secured right is liable for that
transgression.” Sample v. Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989). There are two ways one can
be liable under § 1983: “One can be liable for one's own constitutional tort, that is, for ‘subjecting’
the plaintiff to the constitutional violation. Or one can be liable, under appropriate circumstances,
for someone else's constitutional tort, that is, for ‘causing’ the plaintiff to be subjected to the
constitutional violation.” Id. A plaintiff must prove “specific conduct by state officials which
violates some constitutional right of the complainant . . . .” Gittlemacker v. Prasse, 428 F.2d 1, 3
(3d Cir. 1970)
In order to be liable under § 1983 as supervisors, individual state officials must have
“personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the
operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). If a party is alleging that a supervisor
was inadequate or otherwise failed in his or her duties as a supervisor, a plaintiff may not merely
“argue that the constitutionally cognizable injury would not have occurred if the supervisor had
done more than he or she did.” Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)
(citing Diecks, 885 F.2d at 1118). This is because a “‘person’ is not the ‘moving force [behind] the
constitutional violation’ of a subordinate, unless that ‘person’—whether a natural one or a

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municipality—has exhibited deliberate indifference to the plight of the person deprived.” Diecks,
885 F.2d at 1118 (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)) (citation omitted).
The plaintiff must also “persuade the court that there is a relationship between the ‘identified
deficiency’ and the ultimate injury.’” Brown, 269 F.3d at 216 (quoting Diecks, 885 F.2d at 1118).
If the party is alleging that the supervisor defendant has created or established a practice or policy
that has creates an unreasonable risk of a constitutional violation, a party can establish supervisory
liability by:
(1) identify the specific supervisory practice or procedure that the supervisor failed
to employ, and show that (2) the existing custom and practice without the identified,
absent custom or procedure created an unreasonable risk of the ultimate injury, (3)
the supervisor was aware that this unreasonable risk existed, (4) the supervisor was
indifferent to the risk; and (5) the underling's violation resulted from the supervisor’s
failure to employ that supervisory practice or procedure.
Id.
Plaintiff argues that each of the Defendants have subjected or personally caused Plaintiff’s
deprivation of liberty “by retaining custody and control of Plaintiff without initiating civil
commitment proceedings against him in a timely matter so that he would have a civil commitment
hearing within 20 days of his admission to TPH.” Am. Compl. ¶ 14. Specifically, Plaintiff argues
that each Defendant failed to act when they had a duty to in order to insure that Plaintiff would not
be confined without a valid legal order, and also argues that the “defendants acted with deliberate
indifference to the fact that there was no system or procedure in place to insure that the plaintiff, or
any other patient at TPH, would not be confined with a valid legal order.” Pl.’s Opp. Br. at 10.
A.

Defendant Stacy Udijohn

Defendant Udijohn has been employed by the State of New Jersey as a Clerk Typist at the
TPH in the OCC since 2007, and was employed in such a position on October 8, 2009. As the
undisputed facts establish, the OCC operated essentially as a “clearing house,” passing along
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information to the necessary treatment team and then checking involuntary commitment papers for
completeness before sending them to the appropriate county adjuster for scheduling of commitment
hearings. Accordingly, as a Clerk Typist in the OCC, if Defendant Udijohn received a court order
mandating that an individual be civilly committed, she would notify all the members of the
individual’s treatment team, alerting them that the commitment process needs to start to determine
if the patient meets the criteria to be committed. Thereafter, the treatment team was responsible for
processing the appropriate certifications for the court. The OCC was not responsible for telling the
treatment team to have the commitment papers done by a certain date, because the treatment team
was supposed to process them immediately. After the treatment team completed the commitment
papers, they would send the papers to the Admissions Unit (a distinct unit from the OCC) for
forwarding to the Court for a temporary order of commitment to be signed by a judge. The papers
were then returned to the hospital, specifically to the Admissions Unit. A copy of the papers were
then sent to the OCC, where Udijohn was responsible for logging that information into the logbook
and sending the notice and commitment papers to the appropriate country adjuster. The county
adjuster was responsible for scheduling the hearing for the civil commitment, and then returning a
copy of the commitment papers and the hearing notice to the OCC.
It is undisputed that Defendant Udijohn was copied on the email that Mr. Newsom sent on
October 27, 2009, which explained the failure of Plaintiff’s criminal defense attorney to send a copy
of the October 8 Court Order that mandated Plaintiff be civilly committed and advising the
treatment team to begin the commitment process. It is also undisputed that Udijohn was not
responsible for any further response once the treatment team was alerted and that the email was not
addressed to her nor asked her to do anything. Further, when Udijohn was eventually alerted to
Plaintiff’s situation, she immediately acted in accordance with her job. She reached out to the

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appropriate treatment team and informed them of the background of the case, and asked the
treatment team if Plaintiff met the criteria for commitment, explaining that something needed to be
done “ASAP.” See Declaration of Stacy Udijohn Ex. G. This was also the first time that Udijohn
learned that no action had been taken in response to Mr. Newsom’s email. Three days after Udijohn
alerted the treatment team, a temporary order for involuntary commitment was entered and a
hearing was scheduled on the need for the continued involuntary commitment of Plaintiff.
Plaintiff argues that Udijohn failed to “follow through” with the civil commitment process
by not paying attention to the fact that the certificates were not submitted immediately. The OCC,
however, was not responsible for processing initial commitment evaluations; rather, once they
notified the relevant treatment team of the necessity of starting a commitment evaluation, their
responsibility ended until such time as they received a temporary commitment order from the
Admissions Unit and forwarded it to the county adjuster to schedule a hearing. Further, simply
being copied on an email sent by her co-worker is not enough to impose a duty on Udijohn.
Rather, Udijohn acted promptly as soon as it can be fairly said that she had actual knowledge of
Plaintiff’s situation, as she emailed the treatment team to begin the commitment process of Plaintiff
as soon as possible, stressing the urgency of Plaintiff’s situation. Udijohn was not responsible for
processing initial commitment evaluations nor was there a duty on her to follow up after she
notified the treatment team to begin the commitment process; she was only responsible for notifying
the treatment team of the necessity to do so. The Court will not impose liability on Udijohn for
failing to do something she had no legal responsibility to do. Overall, Plaintiff has failed to point to
any action or omission on Defendant Udijohn’s part that violated Plaintiff’s constitutional rights.
See Gittlemacker, 428 F.2d at 3. Accordingly, the Court finds that these undisputed facts do not

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create a genuine issue for trial and will deny Plaintiff’s motion for summary judgment and enter
judgment in favor of Defendant Udijohn.
B.

Supervisor Defendants

Defendants McQuaide, Rossi, Thomas, and Feibusch all have supervisory positions at TPH.
Plaintiff’s claims against these Defendants are based on their failure to execute their individual
responsibilities as supervisors in such a way as to avoid violating Plaintiff’s rights. Therefore, the
Court must review the alleged inadequacy of their supervision. See Brown, 269 F.3d at 216.
First, Plaintiff argues that Defendant McQuaide was “responsible for the admission and
retention of [P]laintiff to TPH . . .” and that she “failed to implement or promulgate any policies
regarding her supervision of the admission and retention of patients to TPH.” Pl.’s Br. at 11. The
record, however, is completely devoid of any evidence that McQuaide was actually aware of
Plaintiff’s presence at TPH until it was brought to her attention after the events at issue here.
Because McQuaide supervises a staff of approximately 1,200 employees who care for
approximately 450 patients, it is unreasonable to assert that McQuaide should, by reason of being
CEO, know of every patient that enters TPH.
Next, with regard to Plaintiff’s assertions regarding the policies that McQuaide allegedly
failed to implement, Plaintiff has failed to prove the necessary elements under the Diecks test, see
885 F.2d at 1118; importantly, Plaintiff has failed to specifically identify anything that McQuaide
failed to do that evidences her deliberate indifference. While “deliberate indifference to a known
risk will ordinarily be demonstrated by evidence that the supervisory official failed to respond
appropriately in the face of an awareness of a pattern of such injuries,” the record in this case does
not affirmatively show a pattern of injuries similar to Plaintiff. Id. Nor does it show any indication
that Defendant McQuaide was aware of any such incident. Rather, it appears that Plaintiff is

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improperly relying on a theory of respondeat superior, and has failed to establish any wrongdoing
on McQuaide’s behalf. Accordingly, the Court finds that there is no genuine issue for trial, and
summary judgment must be entered in favor of Defendant McQuaide.
Plaintiff also argues that Defendant Rossi was liable because he was the clinical director at
TPH and should have been aware that Plaintiff was ordered to be civilly committed by the October
8 Order and failed to order Dr. Feibusch to immediately assign a psychiatrist to conduct the
evaluations. Plaintiff asserts that Defendant Rossi “had no policy or mechanism in place in the
OCC to ensure that civil commitment hearings would be held on a timely basis.” Pl.’s Opp. Br. at
14. The record, however, fails to show any evidence that Dr. Rossi was aware that Plaintiff had
been ordered to be civilly committed on October 8. While the record is not clear when Dr. Rossi
found out about Plaintiff, there is no evidence that he was copied on the initial October 27 email or
Udijohn’s November 17 email, nor is there any evidence of any individual telling him about
Plaintiff’s case. The Court cannot assume that Dr. Rossi knew about Plaintiff simply because he
was the clinical director. Without any evidence that Dr. Rossi knew about Plaintiff, there is no
basis to Plaintiff’s argument that Dr. Rossi should have told Dr. Feibusch to appoint someone to
immediately begin an evaluation. Further, this argument ignores the policy in place at the TPH, in
which a treatment team knew to immediately begin the commitment process once they received
notice of a court order. See Diecks, 885 F.2d at 1110 (explaining that “not every official who is
aware of a problem exhibits indifference by failing to resolve it” if “there are procedures in place
calling for others to pursue the matter”). Plaintiff’s argument is based more upon speculation than
the actual record. Importantly, he has failed to identify any “specific acts or omission of the
supervisor that evidence deliberate indifference” or to persuade the court that there is a relationship
between the identified deficiency and the ultimate injury.” Brown, 269 F.3d at 216 (internal

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quotation omitted). Finally, for the same reason that Plaintiff’s argument concerning the lack of
policy in place for Defendant McQuaide, the Court finds no basis for Plaintiff’s argument
concerning the alleged lack of policy or mechanism in place to ensure that civil commitment
hearings were timely. Accordingly, the Court finds that there is no genuine issue for trial, and
summary judgment must be entered in favor of Defendant Rossi.
Next, Plaintiff alleges that Dr. Feibusch, as the chief of psychiatry, displayed deliberate
indifference to Plaintiff’s constitutional violation by failing to require his subordinates to perform
the evaluations on Plaintiff in a timely manner. Specifically, Plaintiff argues that Dr. Feibusch’s
“lack of response and failure to order his subordinates to evaluate the plaintiff in a timely manner
was what ultimately caused the plaintiff to be held at TPH illegally for 63 days.” Pl.’s Opp. Br. at
16. Plaintiff, however, has failed to provide any factual basis for these arguments. While it is true
that Dr. Feibusch was copied on the email sent out October 27 by Mr. Newsom, the email was not
directed at him and did not ask him to do anything. The standard procedure at TPH was that the
treatment team would be directed to begin commitment proceedings by the OCC; here, the
treatment team was instructed to begin the proceedings on October 27. As the Third Circuit
expressed in Diecks, “obviously, not every official who is aware of a problem exhibits indifference
by failing to resolve it,” particularly “when there are procedures in place calling for others to pursue
the matter.” 885 F.2d at 1110. There is no evidence that Dr. Feibusch had any reason to think that
the treating psychiatrist would not timely start the process; for example, there was no evidence that
such an event had happened before or that the treating psychiatrist might not timely start the process
making it a risk that such an incident may occur. It may be the case that if Dr. Feibusch had ordered
his subordinates to evaluate Plaintiff it might have been done sooner; on the other hand, it may have
been the case that it still would not have been done until Udijohn sent out her email. Such a

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statement is purely speculative, and is nothing more than an attempt to argue that Plaintiff’s injury
would not have occurred if Dr. Feibusch did more. This is insufficient. See Diecks, 885 F.2d at
1118. At worst, Dr. Feibusch could be called negligent, but the record needs to establish a question
of fact regarding Dr. Feibusch’s alleged deliberate indifference, a standard that requires a state of
mind greater than mere negligence. See Herman v. Clearfield Cnty., 836 F. Supp. 1178, 1184
(W.D. Pa. 1993) aff’d, 30 F.3d 1486 (3d Cir. 1994) (“The phrase ‘deliberate indifference’ was
coined by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), to describe a state of
mind less than willful but greater than negligence.”). There is no such evidence in the record.
Therefore, the Court finds that there is no genuine issue for trial, and summary judgment must be
entered in favor of Defendant Feibusch.
Finally, Plaintiff argues that Defendant Thomas, as the supervisor of the OCC, was
deliberately indifferent to Plaintiff’s rights when he neither spoke with his supervisor, Dr. Rossi, nor
reached out to the treatment team to request the documents he needed to initiate the civil
commitment process in a timely manner. Once again, this argument is unsupported by the record.
It is undisputed that Thomas was copied on the email that Mr. Newsom sent out on October 27,
alerting the treatment team that they should start the commitment process. It is also undisputed that
the OCC’s obligations ended there until such time as they received a temporary commitment order
from the Admissions Unit and forwarded it to the county adjuster to schedule a hearing. Once
Udijohn discovered that the commitment process had not yet begun, she notified the treatment team
once again to immediately start the commitment process. While Defendant Thomas could reach out
to the treatment team and/or his supervisor if he knew that there was a report missing, there is no
evidence on the record that he was ever told that the report was missing. His job was to supervise
the OCC, in its role as the TPH “clearing house.” There is no dispute that the OCC employees

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immediately notified the treatment team when they received notice of the October 8 Order, as well
as when they were alerted to the fact that Plaintiff had no legal status. Defendant Thomas’s liability
seems to be based upon the fact that he was copied on the October 27 email, but the email did not
instruct him to do anything. Accordingly, the Court finds that there is no genuine issue for trial, and
summary judgment must be entered in favor of Defendant Thomas.
Overall, Plaintiff seems to be relying on the argument that his “constitutionally cognizable
injury would not have occurred if the superior had done more than he or she did.” Diecks, 885 F.2d
at 1118. As the Diecks Court recognized, this is not enough. Plaintiff’s claims for supervisory
liability against any of the named supervisor Defendants needed to establish that each or any
Defendant “exhibited deliberate indifference to the plight of the person deprived.” Id. The facts
here do not create any genuine factual dispute regarding the actions of Defendants here. Although
Plaintiff argues that Defendants each subjected or caused Plaintiff to be subjected to having his
constitutional rights violated, his conclusory and speculative allegations do not create a jury issue or
establish liability on the parts of the Defendants. 2 Because the record could not lead a rational trier
of fact to find for Plaintiff, there is no genuine issue for trial and summary judgment must be
entered in favor of the supervisory Defendants as well. See Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

The Court cannot help but wonder what the actual case was in this situation. If Plaintiff had
started his civil commitment process earlier, he would have been in no better or worse position.
Plaintiff was eventually civilly committed when he had his hearing, and was involuntary committed
until October 29, 2010. While the Court recognizes the very serious constitutional violation of
being deprived of one’s liberty, it does not appear that Plaintiff was actually deprived of any actual
“liberty.” Rather, he was a patient at TPH who was (wrongly) labeled as an IST until he was
eventually civilly committed from December 2009 until October 2010. There is no dispute that
patients are treated the same whether they are classified as IST or involuntary committed.
2

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IV.

Conclusion
Overall, it appears that there was a period of time in which Plaintiff was being held in TPH

without a lawful order, which is a violation of his constitutional rights. This incident, however, was
unintentional and appears to have been the first of its kind. Without any awareness that there may
be a problem with the procedure, the Court cannot find Defendants liable for putting faith in it
successfully working. Likewise, the Court cannot impose liability on Defendants for failing to go
above and beyond what their job entails. Instead, the record reveals that there was a breakdown in
the administrative procedure at TPH that was quickly fixed once Defendant Udijohn found out that
no action had been taken in response to a colleague’s earlier email. Accordingly, for the forgoing
reasons, the Court must grant summary judgment in favor of Defendants and deny Plaintiff’s
motion for summary judgment. An appropriate Order accompanies this Opinion.

/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.

Dated: July 1, 2014

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