WOOD v. CITY OF LANCASTER et al

Filing 43

MEMORANDUM AND ORDER THAT DR. STEPHEN POWERS'S MOTION TO AMEND HIS SUMMARY JUDGMENT MOTION IS GRANTED. DR STEPHEN POWERS'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. DR ROBERT DOE'S MOTION IS GRANTED. THE MOTION FILED BY LANCASTER COUNTY, WARDEN VINCENT GUARINI, TROY WALTZ, AND JAMES FLAHERTY IS GRANTED IN PART. ALL CLAIMS AGAINST LANCASTER COUNTY, WARDEN VINCENT GUARINI, AND TROY WALTZ ARE DISMISSED. IN ALL OTHER RESPECTS, THAT MOTION IS DENIED. BY JANUARY 20/09, THE REMAINING PARTI ES SHALL JOINTLY REPORT BY FAX (215-580-2156) TO CHAMBERS WHETHER A SETTLEMENT CONFERENCE WOULD BE FRUITFUL. JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT LANCASTER COUNTY, ROBERT DOE, STEPHEN POWERS, TROY WALTZ, VINCENT GUARINI AND AGAINST PLAINTIFF CURTIS WOOD WITH EACH SIDE TO BEAR ITS OWN COSTS. SIGNED BY HONORABLE STEWART DALZELL ON 1/13/09. 1/13/09 ENTERED AND COPIES MAILED, E-MAILED.(lisad, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CURTIS WOOD v. CITY OF LANCASTER, et al. : : : : : MEMORANDUM Dalzell, J. January 13, 2009 CIVIL ACTION NO. 06-3033 Plaintiff Curtis Wood, administrator of the estate of Devon Lee Reid, sued the City of Lancaster, Pennsylvania, certain of its police officers, Lancaster County, and certain of its prison officials and personnel for their alleged involvement in Reid's death on September 17, 2004 while in Lancaster County Prison ("LCP"). Wood later voluntarily dismissed his claims against the City of Lancaster and its police officers. We have already granted summary judgment in favor of defendants Darlene Cauler and Elizabeth Haddox, two nurses at LCP. The remaining defendants are Lancaster County, Warden Vincent Guarini, Corrections Officer James Flaherty, Mental Health Counselor Troy Waltz (together the "County defendants"), Dr. Robert Doe, who was the prison medical director in 2004, and Dr. Stephen Powers, who was the prison psychiatrist in 2004. Wood asserts violations of the Americans with Disabilities Act ("ADA") and state law wrongful death claims against all the remaining defendants. He asserts Eighth and Fourteenth Amendment deliberate indifference claims pursuant to 42 U.S.C. 1983 against Dr. Doe, Dr. Powers, Waltz, and Flaherty. Wood also asserts a Monell claim against Lancaster County and Warden Guarini, as the decision-maker for the prison, as well as a supervisory liability claim against Warden Guarini. All defendants have moved for summary judgment on each claim against them. We resolve those motions now. I. Factual Background We will first describe certain LCP policies, procedures, departments, and personnel to place the events from July 16, 2004 to September 17, 2004 in context. We will then at length detail the events culminating in the death of Devon Lee Reid, and finally consider the plaintiff's expert medical reports and Dr. Doe's explanation of his service to his late patient. A. Lancaster County Prison LCP's medical and mental health policies, procedures, and personnel play a significant role in this case. We shall first describe Warden Guarini's role in establishing LCP's mental health policies and procedures. We will next present the roles that Dr. Doe and Dr. Powers respectively played in the hospital, 2 and what administrative and diagnostic procedures they used. shall then view LCP's mental health policies and procedures in effect when Reid was incarcerated there. We 1. Warden Guarini Pl.'s Warden Guarini was the chief executive of LCP. Mem. Ex. N [Guarini Dep.] at 5. policy. Id. He had a hand in most LCP Warden Guarini formulated LCP mental health and medical policy in consultation with the prison medical director. Id. His role was to work out the security implications and concerns attendant to implementing an overall medical policy. Id. Medical staff made all medical and mental health decisions, and other than those medical staff administratively reporting to Warden Guarini, he did not exercise any specific oversight of the medical staff or of their decisions. Id. at 6-7. 2. Doctors Doe and Powers Dr. Robert Doe and Dr. Stephen Powers, respectively the prison's medical director and psychiatrist, were independent contractors. Doe Mem. Ex. 2 [Doe Dep.] at 10; Powers Mem. Ex. C [Powers Dep.] at 33. Dr. Doe supervised the medical department and was responsible for medical decisions and signing off on the actions 3 of nurses and mental health counselors. Doe Dep. at 21. In particular, Dr. Doe had to sign off on any additions to an inmate-patient's charts, any drug prescriptions, and any changes to Suicide Status. Id. at 84-85. When an inmate complained about a medical issue, a nurse would initially evaluate the inmate and either treat him or put him on a schedule to see the doctor. Id. at 35. Dr. Doe would only examine an inmate if a Id. at 35. nurse referred that inmate to him. Although Dr. Doe was the medical director of the prison, he did not have significant oversight over how Dr. Powers treated patients. Dr. Doe would review some cases with Dr. Powers, but this was primarily for the purpose of his own edification rather than as a means of supervising Dr. Powers. Powers Dep. at 37-38. In general, Dr. Doe deferred to the psychiatrists and mental health counselors on most mental health decisions. Doe Dep. at 31-32 Dr. Powers spent two half-days each week at the prison seeing inmates. Powers Dep. at 34. Dr. Powers only saw patients Id. at 36. He referred to him by mental health counselors. relied on the prison personnel to provide him with information about an inmate's problematic behavior. Id. at 40. It was also understood that the counselors and corrections officers would 4 update Dr. Powers about changes in, or worsening of, a particular inmate's behavior. Id. at 40-41. Although Dr. Powers relied on the counselors and corrections officers to bring him patients and news about the changes in their behavior, he did not rely on their assessments of the inmates' behavior when making his diagnoses. Id. at 69-70. 3. Mental Health Status Policy and Procedure LCP had four official levels of suicide status and mental health status. Pl.'s Mem. Ex. D at 1020-21. LCP placed an inmate on Suicide Status I if the inmate stated that he or she planned suicide and would act on it. Id. at 1020. When on this status, corrections officers were required to make random checks to personally observe the inmate every fifteen minutes. would place an inmate on Suicide Status II if that inmate "expresse[d] hopelessness, but has no current plan on how they would harm themselves." Id. Again, when an inmate was placed on Id. LCP this status, corrections officers must make random fifteen minute checks. Id. If an inmate was placed on either Suicide Status I Id. or II, they had to be housed in a cell with a camera. Mental Health Status Levels III and IV were not suicide watch status. Id. at 1021. LCP used these Levels to observe 5 inmates who "exhibit[ed] signs of mental health concerns [through] his thoughts or actions" or the "individual need[ed] to be observed, so a further determination can be made concerning individual['s] mental status." Id. at 1021. These two Levels constituted Medical Observation Status, and only required corrections officers to make random checks every thirty minutes. Id. LCP did not require inmates on these mental health status levels to be housed in a camera cell. After making the decision to put an inmate on Suicide Status or Medical Observation Status, medical staff would have an inmate on such status transferred to the Medical Housing Unit ("MHU"). Id. at 1022. Medical staff then submitted an unusual activity report, assessed the patient's clinical conditions and mental status, and notified the medical director to get a verbal order for the level of Suicide Status. Id. Medical staff were to review the mental health status of inmates in the MHU at least every twenty-four hours. Id. at 1025-31. During their fifteen and thirty minute random checks on inmates in the MHU, corrections officers were to speak to the inmate and see if he or she responded. Doe Dep. at 71; Guarini Dep. at 22. If they were nonresponsive, the officer was to call a code that would bring down nurses and other medical staff on duty. 6 Doe Dep. at 71-72. According to the official procedures, the decision to put an inmate on, or take him off, Suicide Status was to be a "medical staff decision" about which the prison physician had the final say. Pl.'s Mem. Ex. D at 1022, 1025-31. During Reid's incarceration at LCP, the prison physician in question was Dr. Doe. Doe Dep. at 31. But other medical staff, i.e., nurses and mental health counselors, could take "precautionary measures" when the prison physician was not available. 1022. Dr. Doe testified that a physician had to sign off on the decision to move an inmate into or out of the camera cell, but that a mental health counselor or nurse usually would make the initial decision. Doe Dep. at 31. Counselors and nurses Pl.'s Mem. Ex. D at could also move an inmate onto or off of Suicide Status or Medical Observation Status without a physician examining the inmate. Id. at 47-48. Dr. Doe would not personally evaluate the inmate in a camera cell, or talk with the counselors about the decision, but he would review the note made in the progress chart and sign off on the decision. Id. If there was a medical problem with an inmate, it was the obligation of the nurses to notify a physician. Id. at 32. If there was a psychiatric issue, then it was the obligation of the nurses to notify the 7 mental health counselors who, if necessary, would notify the psychiatrist. Id. at 32-33. Dr. Doe could occasionally disagree with the mental health counselors' assessments. Id. at 84. Dr. Doe rarely saw a Doe patient before signing off on a change in suicide status. Dep. at 93. He testified that he had done it perhaps two or Id. If the nurse or three times during his ten years at LCP. mental health counselor was uncertain about making the change, the physician would see the inmate. Id. If the nurse or mental health counselor was certain in their judgment, Dr. Doe would defer to it. Id. at 93-94. B. The Death of Devon Lee Reid Devon Lee Reid was twenty-six years old, six feet four inches tall, and weighed about 265 pounds when he entered LCP on July 16, 2004. time in LCP. Doe Mem. Ex. 1 at 87. This was not his first He had been jailed several times before, and had had contact with some, if not all, of the people involved in this case. Doe Dep. at 24; Powers Dep. at 74, 83-84, 87-94; Waltz Those who were asked said that Reid had been a Dep. at 10. likeable fellow, was somewhat shy and was easily bullied by those 8 smaller than he. Flaherty Dep. at 34; Pl.'s Mem. Ex. G11 at 7, Ex. G2 [Waltz Dep.] at 42-43. 1. Reid's Prior Mental Health History Reid had been hospitalized for mental health issues seven or eight times. Powers. Dep. at 50, Ex. 4. On November 6, 2002, Reid was admitted to Lancaster General Hospital because he had purposefully overdosed on medication and drank bleach. Powers Dep. Ex. 5. The psychiatrist who saw Reid noted that Reid stated that he suffered from auditory hallucinations and fears that someone was out to get him. Id. That psychiatrist diagnosed Reid as paranoid schizophrenic and prescribed medication. Id. On April 10, 2003, while incarcerated at LCP, Reid met with Dr. Robin Miller. Powers Dep. at 74, Ex. 4. Reid told Dr. Miller that he was having bad hallucinations that told him to kill himself. Id. Dr. Miller diagnosed Reid as suffering from paranoid schizophrenia and prescribed Haldol and Cogentin for The exhibits attached to plaintiff's memoranda have two exhibits G. Further confusing the issue, both Exhibits G consist of different depositions of Troy Waltz. We will refer to the September 25, 2008 Waltz deposition as Exhibit G1, and the October 17, 2008 Waltz deposition as G2. Since we will quote more extensively from the October 17 deposition, we will use the shorthand "Waltz Dep." to refer to that deposition. 9 1 him. Id. Later that year, while still at LCP, Reid met with Dr. Stephen Powers, who had taken over as the prison psychiatrist from Dr. Miller. Reid and Dr. Powers initially met on September Powers 25, 2003 as a follow-up to Reid's visit with Dr. Miller. Dep. at 83-84, Ex. 3. During this visit, Reid told Dr. Powers that he did not recall any hallucinations, his tongue was protruding for the past couple of months, and he felt stiff and slow. Id. Dr. Powers observed that Reid was communicative and Id. Dr. Powers reduced the dose of Haldol that in good spirits. Reid was taking, and began to question the diagnosis of paranoid schizophrenia. Id. Dr. Powers had planned to meet with Reid again on October 23, 2003, but Reid declined the visit. 87, Ex. 7. Powers Dep. at Either through Dr. Powers going to Reid's cell or the counselor's reports, Dr. Powers recorded in a progress note that Reid was not showing any behavioral problems though his tongue was still protruding, but less so. Id. Dr. Powers followed up with Reid on November 28, 2003. Powers Dep. at 89-93, Ex. 8. During this visit, Dr. Powers observed that Reid stated that he was having trouble breathing and speaking, which Dr. Powers attributed to the reduction in the 10 Haldol dose. Id. Reid also stated that he thought people had Powers Dep. at 90. Dr. Powers "worked together against him." noted that when Reid said this he was smiling and unafraid, which was not what Dr. Powers would have expected from someone diagnosed as paranoid. Id. at 91-92. Dr. Powers decided to take Id. at 92. Reid off the Haldol and replace it with Vitamin E. Dr. Powers still diagnosed Reid as a chronic paranoid schizophrenic, but was now much less certain -- his notes reflected the possibility that this had been the diagnosis because it "[a]lways made sense to counselors." Id. Dr. Powers met with Reid again on January 16, 2004. Powers Dep. at 93-94, Ex. 9. Dr. Powers recorded that Reid was "[g]etting [a]long", "[h]aving trouble keeping food down", "[h]aving sharp chest pains and gained a lot of weight." 93. Id. at Dr. Powers also noted that Reid seemed cheerful, responsive, Id. at 94. Id. Based on all not suicidal, and was relating well and openly. Reid's tongue had also stopped bothering him. of this, Dr. Powers began to "seriously doubt schizophrenic diagnosis", and decided to cease medicating Reid with psychotropic drugs. Id. At some point after this, Reid was released from LCP. 11 2. Back in LCP On July 15, 2004, City of Lancaster Police arrested Reid. After subduing him, the police took Reid to the hospital because they had hit him with a baton on the leg and wrist. Pl.'s Mem. Ex. B at 59-61. After an evaluation at the hospital, Reid was brought to LCP at about 8:20 a.m. on July 16, 2004.2 Id. at 58. Initially, LCP personnel interviewed Reid about his medical history. He completed two different questionnaires in which he complained about pain in his wrist and legs, told his interviewers that he suffered from schizophrenia and bi-polar disorder, had been hospitalized for mental health issues, and had attempted suicide two or three years earlier. Lancaster County Def.'s Mem. Ex. D. Id. at 88; On one of the forms, Reid also stated that he was not taking any medications at the time for his mental illness. Lancaster County Def.'s Mem. Ex. D. Id. A nurse also interviewed Reid on July 16, 2004. Ex. E. During this interview Reid stated that he had been committed "for 'acute anxiety attack'", suffered from bi-polar Wood contends, and the defendants do not object, that Reid was a pretrial detainee during his final incarceration at LCP. We accept that he was a pretrial detainee for the purposes of these motions. 12 2 disorder and paranoid schizophrenia, and had been taking Seroquel for his mental issues while committed but had stopped since his release because he felt he did not need them. Id. The nurse Id. noted that Reid should be scheduled to see the psychiatrist. The next day, the same nurse again examined Reid, this time for the pain in Reid's right wrist and bruising on both thighs, which Reid stated resulted from the police subduing him. Id. On July 20, 2004 a nurse examined Reid's wrist again, and treated him for a laceration. Id. Ex. F. Two days later, another nurse examined Reid for complaints of burning urination and green discharge, and prescribed antibiotics. Id. On August 2, 2004, Reid requested medical attention because there were green spots on his underwear, he had pain in his chest and throat, and he was coughing up mucus. Id. Ex. H. Id. Reid was given cold medication and scheduled for a sick call. That same day, Sherry Gerhart of the Lancaster County Mental Health Mental Retardation Office ("MHMR") emailed mental health counselor Troy Waltz. Pl.'s Mem. Ex. G1 at 15-18, Ex. 2. The email consisted of a list of individuals incarcerated at LCP who were also patients of MHMR. Id. Waltz explained that he had emailed Gerhart a list of incarcerated individuals that he thought may have been MHMR patients to find out who each one's 13 MHMR case manager might be. Waltz Dep. at 6-7. Although Gerhart provided Waltz with Reid's case manager's name, there is no record that Waltz contacted this case manager. Id. at 8. On August 5, 2004, defendant Dr. Doe examined Reid for continued complaints about his wrist. Mem. Ex. I; Doe Dep. at 33. lateral right wrist. Lancaster County Def.'s Dr. Doe observed swelling over the Reid explained to Dr. Doe Id. Id. Dr. Doe ordered At no time Doe Dep. at 34. that the injury occurred during his arrest. an x-ray and a follow-up visit a week later. during this visit did Reid complain about chest pains or shortness of breath. Id. at 33-34. A private company evaluated the x-ray on August 6, 2004 and determined that Reid had a fracture of his right wrist. Lancaster County Def.'s Mem. Ex. J. That day Reid made another request for medical attention. Id. Ex. K. Reid again complained of green spots on his underwear and coughing up mucus; he also stated that he was dizzy, experiencing blurry vision, feeling nauseous, and suffering from chest pains. Id. Four days later, Dr. Doe's physician's assistant examined Reid regarding these symptoms. Id. Ex. I. The physician's assistant noted that the chest pains signaled a 14 diagnosis of costochondritis3 because Reid's chest wall was tender to palpation, i.e., the pain could be reproduced by touching the area, and Reid's lungs were "[c]lear to auscultation," i.e., the physician's assistant listened to Reid's lungs and determined they were clear. Doe Dep. at 69, 90-91; The Lancaster County Def.'s Mem. Ex. I; Pl.'s Mem. Ex. B at 91. physician's assistant recorded Reid's complaints about blurred vision and dizziness as well as tenderness in his right wrist. Pl.'s Mem. Ex. B at 91. The progress note also reflects that when Reid told the physician's assistant that he only drank six cups of water each day, the physician's assistant encouraged Reid to double his intake. Id. Lancaster On August 12, 2004, Dr. Doe saw Reid again. County Def.'s Mem. Ex. N; Doe Dep. at 36. It is uncertain whether the physician's assistant's notes were part of the chart at the time Dr. Doe saw Reid. Doe Dep. 37-38. However, Dr. Doe did review the August 10, 2004 progress note the physician's "Costochondritis is an inflammation of the cartilage that connects a rib to the breastbone (sternum). It causes sharp pain in the costosternal joint -- where your ribs and breastbone are joined by rubbery cartilage. Pain caused by costochondritis may mimic that of a heart attack or other heart conditions...Most cases of costochondritis have no apparent cause." MayoClinic.com found at h t t p : / / w w w . m a y o c l i n i c . c o m / h e a lt h / c o s t o c h o n d r i t i s / D S 0 0 6 2 6 . 3 15 assistant had completed before seeing Reid. Lancaster County Def.'s Mem. Ex. I. Doe Dep. at 40-41; Dr. Doe did not recall Reid complaining about his chest during his August 12, 2004 visit, and Dr. Doe concentrated his attention on Reid's wrist. 36, 39, 40, 41. Doe Dep. at Dr. Doe referred Reid to an orthopedic Id. at 41; specialist, who Reid saw on August 23, 2004.4 Lancaster County Def.'s Mem. Ex. N, Q. Reid in person again. Doe Dep. at 43. Dr. Doe did not meet with On August 17, 2004, Reid again sought medical attention. Lancaster County Def.'s Mem. Ex. O. Reid complained of headaches, chest pains, back pain, lightheadedness when standing, phlegm in his throat, and problems with his kidneys, bladder, and stomach. Id. He also specifically requested that he be tested for "multiple sclerosis, emphysema, cancer, West Nile virus, mercury, diabetes, anemia, sickle cell, hernia, transverse myelitis, and Guillain-Barre." Id. Two days later, On August 23, 2004, Dr. Edward Maley, the orthopedic surgeon to whom Dr. Doe had referred Reid, examined Reid and took another set of x-rays of his right wrist. Lancaster County Def.'s Mem. Ex. Q. Dr. Maley acknowledged that the wrist was tender and the earlier x-rays showed a fracture, but stated that the more recent ones did not show a fracture. Id. Nonetheless, Dr. Maley offered to splint Reid's wrist, but Reid declined. Id. Dr. Maley scheduled a follow-up visit for one month later. Id. Ex. N. 16 4 Reid reiterated his request for testing and added Hepatitis C and scabies to the list of potential ailments. Id. Ex. P. A nurse responded to Reid's medical request and asked him to list the specific symptoms he was experiencing because LCP "would not test you unless you have symptoms." Id. 3. On And Off Suicide Status On August 28, 2004, Reid informed one of the nurses that he had "just decided" that he was "going to kill himself," and at 4:15 a.m. Reid was placed on Suicide Status I in a camera cell. Id. Ex. R. That same day at about 7:00 p.m., a mental Id. health counselor, Carrie McWilliams, interviewed Reid. McWilliams noted that Reid stated that he was regularly being robbed and having problems on his cell block and that "he would not be suicidal if moved to any block but 3-1." Id. McWilliams noted that Reid was making eye contact, was smiling, was not exhibiting suicidal ideation, and should be removed from suicide status. Id. At around 9:15 p.m. Reid refused to be moved to cell block 3-2, and McWilliams met with Reid again. Id. Ex. S, T. McWilliams noted this time that Reid said that "he could not go to 3-1 or 3-2. [Reid] stated that he would rather move to C-2, 17 but said he would end up right back in MHU. [Reid] said he could not guarantee his safety on C-2." Id. Ex. S. McWilliams noted that she believed that Reid was manipulating the prison rules, but that he should be kept on Suicide Status I because of his "threats of self-harm." Id. For the next day and a half Reid remained on Suicide Status I in the MHU without incident. Id. At about 9:30 a.m. on August 30, 2004, mental health counselor Troy Waltz interviewed Reid. Id. Waltz noted that Reid stated that "he needs to be moved off of MHU now [because] people are 'crazy down here.' suicidal." Id. [Reid] states he is fine, not Waltz noted that Reid was smiling, attentive, Id. Waltz also alert, and did not exhibit suicidal ideation. noted that he believed Reid was "malingering" and should be removed from all status. Id. That same day, at about 5:00 p.m., the Associate Warden of LCP formally notified Reid that the prison was placing him on manipulation status for a thirty day period because of his actions over the previous days.5 Id. Ex. When personnel at LCP believe that an inmate is manipulating the prison's rules or policies to gain inappropriate benefits or advantage, then the prison would put that inmate on "manipulation status". Lancaster County Def.'s Mem. Ex. U; Guarini Dep. at 36. Manipulation status restricts an inmate's privileges, e.g., no personal phone calls, no time at the gym, no 18 5 U. Reid was returned to cell block 3-2. See id. Ex. V. At about 10:15 p.m. on September 1, 2008, corrections officers on cell block 3-2 called the medical department to have a nurse come and check on Reid because he had cut his wrists. Id. The nurse went down to Reid's cell and observed that he had dried and fresh blood on his face, hands, and shirt, he had a laceration on his left wrist, and prison personnel had found a pen that had been torn apart and sharpened. Id. The nurse cleaned and treated Reid's wrist, but did not refer Reid to Dr. Doe because the wound was superficial. Id; Doe Dep. at 47. The nurse noted in the progress report that Reid was "slow to respond, mumbling, shaking." Lancaster County Def.'s Mem. Ex. V. That same night McWilliams interviewed Reid in the cell block. Id. She noted that Reid stated that he had cut his Id. wrists with a pen "because he could not call his parents." He also stated that he was "'not feeling well,' [but that] he would be alright where he was." Id. McWilliams recorded that his was exhibiting suicidal ideation, and had him placed on Suicide Status I. Id. At about 7:00 a.m. the next day, corrections officers commissary access. Id. 19 took Reid out of his cell. Pl.'s Mem. Ex. E at 606. Reid had been urinating and defecating on the cell floor during the night and a working party was called to clean the mess. During this time Waltz interviewed Reid. Id. Id. Ex. W. Reid stated that he was not feeling well and asked if he could make a phone call. Id. Waltz permitted him to do so. Id. Reid called his grandmother and talked to her for about half an hour. Id. Waltz also noted that Reid said that "he would like to be Id. Waltz observed that Reid's put back on his medication." speech was slow and his mood was melancholy, but that he was not exhibiting suicidal ideation. Medical Observation Status. Id. Id. Waltz had Reid upgraded to At about 11:05 p.m. the corrections officer on duty in the MHU noted that McWilliams stopped by Reid's cell. Reid tried to convince McWilliams to let him have a second phone call. Pl.'s Mem. Ex. E at 607. The next morning, at about 7:15 a.m., a working party was once again called to clean out Reid's cell because he had urinated and defecated all over it. Id. at 609. At about 11:27 p.m. that night, Reid began striking the camera in his cell while singing. Id. at 608. The corrections officer on duty at the time tried to get Reid to stop but he 20 would not. Id. The officer also noted that "Reid tried to disrupt other inmates and provoke them" but did not provide further detail. Id. As a result of his conduct, the supervisor Id. took away Reid's "block out" privileges for the next day. The next morning, at about 7:15 a.m., the working party again cleaned Reid's cell. shower. Reid was given new clothes and a Id; Lancaster County Def.'s Mem. Ex. Z at 585. At about 2:30 p.m. on September 5, 2004, the corrections officer on duty observed that Reid did not eat his lunch and laid on the floor of his cell during the entire shift. Pl.'s Mem. E at 610; Lancaster County Def.'s Mem. Ex. Z at 584. The officer tried to communicate with Reid, but Reid would only stare and did not respond verbally. Id. The next morning the corrections officer on duty noted that Reid did not eat his morning meal. Mem. Ex. Z at 583. Lancaster County Def.'s At about 3:25 p.m. that same day, another corrections officer noted that Reid was "placing feces on his cell floor" and had "not returned [the] styrofoam tray" on which he was served lunch. Pl.'s Mem. Ex. E at 610; see also Lancaster County Def.'s Mem. Ex. Z at 582. At about 12:45 a.m. on September 7, 2004, a working crew was called to clean Reid's cell. 21 Pl.'s Mem. Ex. E at 611; Lancaster County Def.'s Mem. Ex. Z at 98. The corrections officer on duty noted that Reid refused to change his clothes despite their being soiled. Pl.'s Mem. Ex. E at 611. Reid was lying in the fetal position and did not verbally respond to the corrections officers. Lancaster County Def.'s Mem. Ex. Z at 98. Reid did obey orders by the corrections officers to go into another cell, and told them that he could not walk: he crawled from his befouled cell to a clean one, and then crawled back once the working party had finished. Id. At 7:00 a.m. that same day, the corrections officer on duty noted that Reid did not eat breakfast, did not move from the cell floor, and refused, once again, to change his clothes. Pl.'s Mem. Ex. E at 611. At about 8:45 a.m. that day, mental health counselor Waltz came to Reid's cell to interview him. Lancaster County Def.'s Mem. Ex. W; Waltz Dep. at 28-29. found Reid lying on the cell floor. Waltz. Id. Waltz Reid did not respond to Id. After this Waltz noted the cell smelled of urine. visit, Waltz scheduled Reid for a visit with the prison psychiatrist, defendant Dr. Powers, for September 9, 2004. In preparation for this visit, Waltz completed a Id. 22 checklist form that Dr. Powers had created.6 128; Powers Dep. at 64. Pl.'s Mem. Ex. B at Waltz noted Reid's bizarre behavior and wrote that Reid "lays in one position and doesn't move for hours, sometimes days. [sic)" Id. Urinates on himself. defecates on cell floor Waltz also noted that Reid did not talk to himself Id. Waltz and did not exhibit signs of anger or aggressiveness. recorded that he believed that Reid's behavior was genuine and he was not being manipulative or exaggerating his symptoms. Id. Waltz also marked on the checklist that Reid was not "[v]ery pleased with his/herself" and was "easily insulted," and wrote that Reid exhibited a "[d]epressed mood." Id. On September 8, 2004, the corrections officer on duty noted that Reid did not eat his evening meal. at 613. Pl.'s Mem. Ex. E The next day Reid "was cleaned as well as could be" and Id. sent to Dr. Powers. 4. September 9, 2004 Visit With Dr. Powers Powers Dr. Powers met with Reid for about an hour. Dr. Powers created a checklist of questions that the prison mental health counselors were to complete prior to inmate-patient visits with Dr. Powers. Powers' Mem. Ex. C at 63-64. Powers used the checklist to screen patients and get an idea of what category of mental illness the counselor believed the inmatepatient fell into. Id. 23 6 Dep. at 71; see Waltz Dep. at 90. Dr. Powers could not say whether he reviewed Reid's complete medical history before their visit, but he did review some portion of his notes from his prior visits with Reid. Powers Dep. at 46-49, 61. From this review, Dr. Powers gleaned that Reid had had some problems with certain drugs that other doctors had prescribed medication for his mental health issues. Id. at 46-47. During the visit, Dr. Powers asked questions relating to Reid's medical and personal history -including previous medical commitments -- whether he abused drugs, what injuries he had previously received, and family and work history. Id. at 50-52. Dr. Powers testified that during the course of the visit Reid did not mention any physical or medical problems he was experiencing. Id. at 59-60. Dr. Powers noted that he saw Reid because Reid was "[d]efecating, screaming, urine on the floor...voices...[l]ying on the floor...[s]tays in position times [hours] per day... [d]epressed mood." Id. at 49. When Reid arrived for the visit, Dr. Powers noted that Reid's pants were soiled and he jiggled his left breast. Id. Dr. Powers observed that Reid's speech was "within normal limits", that he was upbeat and nonchalant when talking and his speech was logical and coherent. Id. at 53, 57. Dr. Powers found that many of his observations of Reid 24 were inconsistent with a diagnosis of paranoid schizophrenia. Dr. Powers testified that Reid's upbeat demeanor when speaking was "totally incongruent with a diagnosis of schizophrenia." at 53. Dr. Powers would expect that someone suffering from Id. paranoid schizophrenia would display "a lack of affect, a lack of anything much. A lack of connectiveness...sometimes fear, which And I am seeing can also generate, sometimes, anxiety, anger. none of those." Id. at 53-54. Dr. Powers also found that Reid's Dr. coherence undercut the diagnosis of paranoid schizophrenia. Powers testified that "[o]ne of the cardinal symptoms of schizophrenia is disorganized thought process which will, if active at the time, manifest as disorganized speech. Anything from rambling around to failure to answer questions...[but what Reid] wanted to say came out very clearly." Id. at 54-55. From their conversation, Dr. Powers noted that there was "no signs of blocking, thought disorder, or hallucinations." Id. at 55. Dr. Powers also observed that Reid exhibited "[n]o evident depressive affect," which Dr. Powers took to imply that Reid's cutting of his wrist with the pen was not a suicidal act. Id. at 57-58. Dr. Powers believed that Reid had injured himself for the purpose of getting a phone call, which suggested that he was manipulating the prison rules and was not actually suicidal. 25 Id. Dr. Powers considered it significant that Reid had so much "insight" into his condition. Id. at 55-56. Dr. Powers testified that Reid requested to be put back on medication and sent to a hospital. Id. at 55. Dr. Powers stated that the characteristic of schizophrenia with "the highest frequency, the one that accounted for the most discriminating power to diagnose schizophrenia, was the lack of understanding that the patient was ill [, i.e., t]he lack of understanding that he needed a hospital or medication." Id. at 56. Based on the visit, Dr. Powers found there was "[n]o consistent clinical picture or behavior." Id. at 62. Dr. Powers diagnosed Reid as "malingering...Rule out bipolar disorder," but strongly doubted that Reid suffered from bipolar disorder.7 at 58. Dr. Powers determined that Reid should not take any Id. psychotropic drugs and should return for a follow-up visit in six to eight weeks. Id. at 62. Although he did not give the counselors any specific instructions, Dr. Powers testified that Dr. Powers also testified that in his experience every instance of smearing feces (save one particularly strange incident) was linked to mania. Powers Dep. at 65-67. Both Dr. Doe and Warden Guarini testified that smearing feces and ingesting urine were manipulative tactics other inmates had used in the past. Doe Dep. at 50, 59; Guarini Dep. at 14. 26 7 "[i]t would be understood that if there was agitation, disturbing behavior, it would be recorded by the correctional officers and by the counselors for my next visit to the prison." Id. at 63. Waltz often sat in on Dr. Powers's sessions with inmates, but he could not recall whether he was present for the September 9, 2004 session with Reid. Waltz Dep. at 36, 91. Waltz did testify that he disagreed with Dr. Powers's diagnosis that Reid was malingering, but he was not certain whether he conveyed his disagreement to Dr. Powers. Id. at 51. 5. The Last Week After his meeting with Dr. Powers, Reid was taken back to his cell. Pl.'s Mem. Ex. E at 615. He did not eat his evening meal that day, but kept the styrofoam tray in the cell. Id. That night the corrections officer on duty noted that Reid "did state to this officer he tired [sic] of playing this game and he wants to give up. the morning." Id. at 614. I advised him to talk to a counselor in The next day, the corrections officer on duty noted that "Dr. Powers prison phys [sic] is not impressed with inmate Reid, Devon at 1080 [unreadable] has no plans to do anything with this inmate. Manipulation for sure." Id. at 616. 27 On September 11, 2004 Reid refused his block out time, and also refused to give up the tray that he had kept in his cell. Id. at 617. That morning the corrections officer on duty noted that Reid still had the tray and he would not get another one (or any food, one presumes) until he returned the tray. Id. That afternoon prison personnel removed Reid from his cell, gave him a shower, gave him new prison clothing, and cleaned out his cell. Id. Reid also returned the tray he had in his cell as Id. The next well as the one he was given for lunch that day. day the corrections officers on duty recorded that Reid ate neither his breakfast nor his lunch. Id. at 618. On September 13, 2004, Waltz cleared Reid to be moved to a non-camera cell, and LCP did so. Pl.'s Mem. Ex. E at 620. Pl.'s Mem. Ex. B at 133; Waltz could not recall whether he met with Reid in person on September 13th or whether he relied solely on Dr. Powers's evaluation to transfer Reid to a non-camera cell. Waltz Dep. at 48-49. At about noon the next day, someone in the MHU called for a nurse to evaluate Reid, stating that there was "seizure activity." Pl.'s Mem. Ex. B at 133; Lancaster County Def.'s Mem. Nurse Darlene Cauler went Ex. EE [Cauler Dep.] at 68, 69-70. down to the Unit and found Reid naked, lying face down on the 28 floor. Cauler Dep. at 68. Nurse Cauler opened the door to the cell and Reid looked up at her, made eye contact, and proceeded to lap up his own urine off the floor. Id. Nurse Cauler recorded in the progress note that Reid had no history of seizure activity and did not exhibit any of the signs of having had a seizure. Pl.'s Mem. Ex. B at 133; Cauler Dep. at 69 ("Someone having seizures does not make direct eye contact first and foremost"). Nurse Cauler testified that she spoke briefly with Reid and then he got up and walked back farther into his cell, assuring her that there had been no seizure activity. Cauler Dep. at 78 ("Nothing that I saw, nothing that he did was indicative of typical seizure activity...you don't just come out of a seizure and stand up"). Nonetheless, Nurse Cauler put Reid Pl.'s on Suicide Status I, and had him moved to a camera cell. Mem. Ex. B at 133, Ex. E at 622; Cauler Dep. at 69. The corrections officers on duty over the next two days did not record any incidents involving Reid in the prison's pass book until just past 1:00 a.m. on September 17, 2004, when corrections officer James Flaherty found Reid unresponsive and called a "Code Blue". See Pl.'s Mem. Ex. E at 622-23. There are also no medical progress notes involving Reid from this time because no mental health counselors visited Reid as Waltz 29 acknowledged they should have. Ex. B at 132-33. Waltz Dep. at 76-77; Pl.'s Mem. We do have a DVD from the camera in his cell Pl.'s Mem. Ex. O. from September 16. 2004 until Reid died. 6. Video Footage of Reid's Last Twenty-six Hours The camera in Reid's cell recorded the last twenty-six hours of his life. Id. During most of this time Reid laid or Id. At the beginning of the Id. at sat naked on the floor of his cell. footage we see Reid has two styrofoam trays in his cell. 2004-09-16 00:00:16. At about 6:50 a.m. someone outside of the cell places something on the ground just outside of the cell's floor slot. Id. at 2004-09-16 06:49:39. Something is again left outside of Reid's cell's floor slot just before 5:40 p.m. that day. Id. at 2004-09-16 17:39:43. In neither instance does the camera record Reid bringing whatever is placed outside the floor slot into his cell.8 Reid started September 17, 2004 much as he did the day The Lancaster County defendants assert that these objects are food trays, which Reid declined to bring into his cell. Lancaster County Def.'s Mem. at 12 n.2. The Lancaster County defendants also assert that corrections officers left another tray for Reid just before 2:00 p.m. on September 16, 2004. Id. We cannot discern anything placed outside of Reid's cell at that time. Lancaster County Def.'s Reply Ex. C at 2004-09-16 13:52:05. 30 8 before -- lying and moving around on the floor of his cell. Id. at 2004-09-17 00:06:03-00:44:48. Twice Reid makes his way over to the toilet and sticks his head into it, but we cannot discern from the DVD for what purpose. 00:41:55. Id. at 2004-09-17 00:39:30, The camera records Reid lying on his back and stopping Id. at 2004-09-17 00:44:48. movement at about 12:45 a.m. Corrections officer James Flaherty was working at the MHU on the night of September 16-17, 2004. [Flaherty Dep.] at 54. Pl.'s Mem. Ex. F Flaherty had gone on shift around midnight, and had done the first of his room checks at about 12:10. Id. The video footage from that time does not reflect DVD anyone coming to the cell window before Reid stops moving. at 2004-09-17 00:06:03-00:44:48. But Flaherty testified that Reid was singing hymns during the night, and Flaherty did not look directly into the cell to check on Reid until he stopped singing. Flaherty Dep. at 12, 57. Flaherty recalled that after his second round of checks Reid had stopped singing, so he called into the cell. Id. at 57. When Reid did not respond, Flaherty testified that he looked into the cell, saw Reid was not moving, and called the "Code Blue". Id. at 57-58. The camera in Reid's cell recorded someone coming to Reid's cell and flashing a light onto his body just after 12:56 31 a.m. DVD at 2004-09-17 00:56:18-00:56:27. Id. Reid does not seem to move or respond to the light. The person with the light returned to the cell window at just past 1:12 a.m. and again flashed the light on Reid. Id. at 2004-09-17 01:12:01-01:12:21. This time the person at the window kept the light on Reid for some time. Id. (we note no motion is captured between 01:12:04 and 01:12:16, i.e., there is a gap in the DVD's continuity, yet the flashlight remains in the same spot at both ends of this gap, implying that the light did not move from Reid's face where it was focused). Medical staff entered Reid's cell shortly after 1:15 a.m. and began assessing Reid's condition. 132, Ex. P at 150-53, Ex. O at 01:15:07. respiration. PL.'s Mem. Ex. B at They found no pulse or Medical Pl.'s Mem. Ex. B at 132, Ex. P. 152-3. staff applied an automated external defibrillator and attempted CPR. Pl.'s Mem. Ex. B at 132. The defibrillator detected "no shockable rhythms", and Reid's pupils were fixed and dilated. Id. They then called 911. Id. When paramedics arrived, they applied an EKG to Reid and found that he was asystolic, i.e., without cardiac electrical activity. Devon Lee Reid was dead. Id. 32 7. Autopsy Report Pl.'s Mem. Dr. Wayne K. Ross performed Reid's autopsy. Ex. Q at 214. Dr. Ross recorded that Reid's body was a "well- built, well-nourished male who measures 76" and weighs 225 +/pounds by visual examination." Id. at 215. Dr. Ross also noted that the body smelled of urine and there were traces of toilet paper in the hair, beard, mouth, throat, stomach, arms, and thighs. Id. Upon examining Reid's lungs, Dr. Ross observed Id. at clots that completely blocked the pulmonary arteries. 217. Dr. Ross determined that Reid's death was natural and the Id. at 214, 222. Other cause of death was pulmonary emboli. than the emboli, Dr. Ross noted that Reid also had the sickle cell trait, and did not note any other specific issues with Reid's body. D. Medical Expert Testimony Plaintiff presents the opinions of two medical experts, Dr. Robert B. Greifinger and Dr. Raymond F. Patterson. The former opined on the quality and nature of the medical care provided to Reid at LCP. Pl.'s Mem. Ex. R. The latter opined on the quality and nature of the psychiatric care Reid received and how it may have played a role in Reid's death. Pl.'s Mem. Ex. S. 33 1. Dr. Greifinger's Report To prepare his report, Dr. Greifinger reviewed the complaint, Reid's LCP medical, legal, and behavioral files, the autopsy report, Reid's medical records from Lancaster General Hospital relating to the July 15, 2004 injury Reid sustained from police, Reid's medical records from Penn State Hershey Medical Center, and his other, pre-incarceration medical files. Mem. Ex. R [Greifinger Report] at 2. Pl.'s Dr. Greifinger found that Dr. Powers had misdiagnosed Reid as malingering and Reid actually did suffer from paranoid schizophrenia. Id. at 3, 4-5. Dr. Greifinger also found that the autopsy report noted "a carboxyhemoglobin measurement of 11% (normal 4-8%) [indicating] that Mr. Reid had pulmonary compromise for some time." Id. at 5. Dr. Greifinger stated that the autopsy report's determination that Reid had "a BUN of 127 and a creatinine of 7.9 mg/dl" suggested that he was severely dehydrated. Id. Dr. Greifinger concluded that "Reid was a victim of neglect." Id. In particular, Dr. Greifinger faulted LCP for not scheduling Reid for immediate psychiatric and physical evaluations. Id. at 3, 5. He also faulted them for not getting Reid's previous psychiatric medical history sooner so they could "formulate a treatment plan for him." 34 Id. Dr. Greifinger criticizes LCP personnel for failing to "intervene in sufficient time to save Mr. Reid's life...they each made choices...that lead to pain, suffering, starvation, dehydration, and a humiliating death on the floor of a cell filled with feces and urine." at 6. Id. Dr. Greifinger opines that "[e]ven if custody and heath care staff relied on Dr. Power's [sic] misdiagnosis of malingering it shocks the conscience that so many people could stand by and watch the horror of Mr. Reid's physical and mental decompensation, starvation, dehydration, and death." Id. 2. Dr. Patterson's Report Dr. Patterson reviewed the complaint, Reid's LCP medical, legal, and behavioral files, the autopsy report, Reid's medical records from Lancaster General Hospital from July 15, 2004, his Penn State Hershey Medical Center records, deposition transcripts from Dr. Powers, Nurse Darlene Cauler, and Nurse Elizabeth Haddox, and the LCP Policies and Procedures. Mem. Ex. S [Patterson Report] at 1. Dr. Patterson came to four conclusions. First, he Pl.'s believed that Dr. Powers failed "to properly diagnose and treat Mr. Reid" because Dr. Powers did not review Reid's hospital records or incorporate what was in them into his diagnosis. Id. 35 at 3. Second, Dr. Patterson concluded that LCP and its personnel failed "to provide adequate treatment planning" by giving mental health counselors and licensed practical nurses ("LPN") too much responsibility, e.g., mental health counselors scheduling patient visits for Dr. Powers and LPNs modifying inmate's suicide status and providing medications without physical examinations. Id. Third, Dr. Patterson concluded that placing Reid on "manipulation status...may very well have contributed to the mental health and medical staff's failure to properly evaluate his complaints." Id. Specifically, Dr. Patterson stated that Reid's "bizarre behavior includ[ing] smearing feces, licking his own urine from the floor, and lying in a fixed position for several hours at a time do not appear to have been properly evaluated." Id. E. Dr. Doe's Review When confronted with Reid's complete medical file, Reid's bizarre behavior, and his complaints about chest pains, Dr. Doe testified as to why these facts would not have affected his diagnosis. Dr. Doe stated that blood clots like those that killed Reid can cause hypoxia, i.e., insufficient levels of oxygen in the blood or tissue, which in turn can cause strange behavior. Doe Dep. at 60 ("if someone is low on oxygen they can 36 have behavior changes"). But Dr. Doe testified that Reid's odd behavior would not have prompted a different diagnosis because Dr. Doe had never seen mental changes as the presenting complaint prior to pulmonary emboli. Id. ("in the years of working in the emergency room, I saw lots of pulmonary emboli, and I never saw anybody with mental changes being the presenting complaint"). Dr. Doe also testified that when he saw Reid in August of 2004 there is no mention of the legs. The chest pain is very clearly musculoskeletal. And there's not anything raised on the vital signs there that would be any alarm. Low pulse, normal blood pressure, normal respiratory rate, all speak against there being anything active at that time. Id. at 66. Moreover, Dr. Doe was "relatively certain" that he had treated Reid for chest pain in the past, and it had been a musculoskeletal issue then as well. Powers Dep. at 93. Dr. Doe testified that the top three reasons for blood clots leading to emboli were "a clotting disorder that [one is] born with," "recent major surgery," and when one has "been immobile, such as, like being on an airplane for a long period of time and not being able to move around." Id. at 67-68. None of Doe Dep. at 91-92; see also these conditions was present in Reid's case. 37 Dr. Doe testified that he would be alerted to potential pulmonary emboli by "unilateral, swollen, painful, calf, leg, thigh...being the focus of their complaint...then subsequently, shortness of breath, sometimes associated with intermittent sharp chest pain...[n]ot reproducible by pressing on the chest, [and] an abnormal set of vital signs like tachycardia, respiratory rates increased, hypotension." Id. at 80. Again, none of these symptoms was present when the physician's assistant or Dr. Doe examined Reid. Id. at 81. Of particular significance to Dr. Doe was the fact that Reid's chest pains were reproducible by touch. Id. Dr. Doe testified that this was a common complaint among twenty to thirty year olds, and was most commonly "caused by stress, emotional problems, [or] recent overexertion." Id. He stated that if the pain was reproducible by touch and there were no other symptoms present, then stress was the most likely cause and Dr. Doe would not have been prompted to run any further tests. II. Analysis9 Id. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Anderson v. 38 9 Wood asserts a variety of claims against these defendants. We will first consider the 1983 claim for violations of the Eighth and Fourteenth Amendments of the U.S. Constitution that plaintiff asserts against Waltz, Flaherty, Dr. Doe, and Dr. Powers. Next we will consider the Monell and supervisory liability claims against Lancaster County and Vincent Guarini, and then turn to the ADA claims. examine Wood's wrongful death claims. Finally, we will Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Whenever a factual issue arises which cannot be resolved without a credibility determination, at this stage the Court must credit the non-moving party's evidence over that presented by the moving party. Liberty Lobby, 477 U.S. at 255. The moving party bears the initial burden of proving that there is no genuine issue of material fact in dispute. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). Once the moving party carries this burden, the nonmoving party must "come forward with 'specific facts showing there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). The non-moving party must present something more than mere allegations, general denials, vague statements, or suspicions. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992); Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982). It is not enough to discredit the moving party's evidence, the nonmoving party is required to "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Liberty Lobby, 477 U.S. at 257 (emphasis in original). A proper motion for summary judgment will not be defeated by merely colorable or insignificantly probative evidence. See Liberty Lobby, 477 U.S. at 249-50. Also, If the non-moving party has the burden of proof at trial, then that party must establish the existence of each element on which it bears the burden. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 39 A. Eighth and Fourteenth Amendment Claims Wood asserts a 1983 claim against Waltz, Flaherty, Dr. Doe, and Dr. Powers for violating Reid's Eighth and Fourteenth Amendment rights. When one is a prisoner, his claims of inadequate medical care are analyzed under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). But when one is a pretrial detainee, his claims are analyzed under the Due Process Clause of the Fourteenth Amendment. City of Revere v. In fact, a Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). pretrial detainee cannot look to the Eighth Amendment for protection because those protections do not attach "until after [the State] has secured a formal adjudication of guilt in accordance with due process of law."10 Id. Neither the U.S. Supreme Court nor our Court of Appeals has determined the precise contours of this particular Fourteenth Amendment protection. We do know that the Fourteenth Amendment affords pretrial detainees protections "at least as great as the Eighth Amendment protections available to a convicted prisoner." Id. Courts have taken teaching from the Eighth Amendment when fashioning Fourteenth Amendment protections that cover the same Since it is undisputed that Reid was a pretrial detainee, we will dismiss plaintiff's Eighth Amendment claims. 40 10 area. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005); Kost v. Kozakiewicz, 1 F.3d 176, 188 n.10 (3d Cir. 1993). The Fourteenth Amendment protections would appear to be somewhat greater.11 The Eighth Amendment provides protections against "cruel and unusual punishment" while the Fourteenth Amendment protects against all punishment. Hubbard, 399 F.3d at 166 (discussing Bell v. Wolfish, 441 U.S. 520, 536-37 (1979).12 Pretrial detainees "are entitled to at least as much protection as convicted prisoners, so the protections of the Eighth Compare Harvey v. Chertoff, 263 Fed. Appx. 188, 191 (3d Cir. 2008) ("We previously have found it constitutionally adequate to analyze pretrial detainees' claims of inadequate medical care under the familiar deliberate indifference standard...and we do so here as well. To act with deliberate indifference to serious medical needs...is to recklessly disregard a substantial risk of serious harm.") (internal citations omitted) with Montgomery v. Ray, 145 Fed. Appx. 738, 739-40 (3d Cir. 2005) ("The District Court correctly noted that a claim involving inadequate medical treatment of a federal pretrial detainee is analyzed pursuant to the Due Process Clause of the Fifth Amendment. However, the Court...then improperly concluded that claims for inadequate medical care are evaluated under the same standards as Eighth Amendment claims. [W]e recently clarified that the Eighth Amendment only acts as a floor for due process inquiries into medical and non-medical conditions of pretrial detainees.") (internal citations omitted). "The Government concededly may detain [a pretrial detainee] to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment". 41 12 11 Amendment would seem to establish a floor of sorts." at 188 n.10 (noting that the Supreme Court has made no Kost 1 F.3d determination "regarding how much more protection unconvicted prisoners should receive"). Thus, a plaintiff can sustain a Fourteenth Amendment claim of inadequate medical and mental health care if he establishes that the defendants were deliberately indifferent to the pretrial detainee's serious medical needs. Natale v. Camden County Correctional Facility, But 318 F.3d 575, 581-82 (3d Cir. 2003); Kost, 1 F.3d at 185. the inverse is not true. Were we to deny such a claim for failing to meet the deliberate indifference standard, we would not be acting consistently with the dictates of Bell v. Wolfish. See Hubbard, 399 F.3d at 165-67. Neither our Court of Appeals nor the Supreme Court have directly addressed what precise standard applies to a pretrial detainee's Fourteenth Amendment claim for inadequate medical care. See Woloszyn v. County of Lawrence, 396 F.3d 314, 320 n.5. But our Court of Appeals has set a standard to (3d Cir. 2005). examine liability for 1983 cases involving suicides of pretrial detainees: "(1) the detainee had a 'particular vulnerability to suicide,' (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers 'acted 42 with reckless indifference' to the detainee's particular vulnerability." Id. at 319 (quoting Colburn v. Upper Darby Twp., Although this standard only 946 F.2d 1017, 1023 (3d Cir. 1991)). applies to 1983 pretrial detainee suicide cases, it relies on the proposition that "[a] particular vulnerability to suicide represents a serious medical need." Id. at 320. Thus, substituting the general for the specific, the applicable standard ought to be that prison personnel are liable for 1983 claims for pretrial detainee inadequate medical treatment claims if (1) the detainee had a serious medical need, (2) prison personnel knew or should have known of that need, and (3) prison personnel acted with reckless indifference to that detainee's need. Our Court of Appeals has not clarified whether acting with the Fourteenth Amendment's requisite "reckless indifference" to the risk is the same as acting with the Eighth Amendment's "deliberate indifference" to that risk. Id. at 321. But the scienter requirements differ under the two standards. To be sure, the Eighth and Fourteenth Amendments do not "impose liability for negligent failure" to provide adequate medical care. But the Fourteenth Amendment provides for liability for "something more than a negligent failure to appreciate the risk...though something less than subjective 43 appreciation of that risk." Id. at 320 (internal citation omitted); see also Farmer v. Brennan, 511 U.S. 825, 835 (1994) ("deliberate indifference describes a state of mind more blameworthy than negligence"). The Eighth Amendment deliberate indifference standard requires that the defendant have a subjective appreciation of the risks to the plaintiff and act with conscious disregard of that risk. Id. at 837-38. But the Fourteenth Amendment permits recovery if the defendant knew or should have known about the risk. Woloszyn, 396 F.3d at 319. It would not make sense to require conscious disregard of a risk that defendant should have known but did not actually know. Instead, reckless indifference amounts to a "failure to appreciate [a risk, which] evidences an absence of any concern for the welfare of his or her charges." 1025. Colburn, 946 F.2d at Thus, reckless indifference here is "knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Restatement (Second) of Torts 500. "[M]ere disagreement as to the proper medical treatment [cannot] support a claim of an eighth amendment violation," but a 44 plaintiff establishes an inadequate medical treatment claim under the Eighth Amendment when prison officials and doctors, "with deliberate indifference to the serious medical needs of the inmate, opt for an easier and less efficacious treatment of the inmate's condition." Monmouth Cty Correctional Inmates v. Lanzaro, 834 F.2d 326, 346, 347 (3d Cir. 1987) (internal quotations omitted). Therefore, in the Fourteenth Amendment context, a constitutional violation will lie when a prison official or doctor recklessly adopts an easier and less efficacious treatment of an inmate's condition. For a condition to qualify as a serious medical need "the detainee's condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury, or death." 946 F.2d at 1023). Woloszyn, 396 F.3d at 320 (quoting Colburn, Furthermore, "the condition must be one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Id. Here, there are two possible serious medical needs: (1) the condition climaxing in Reid's pulmonary emboli, and (2) Reid's mental health issues. Wood argues that we should treat But Wood these two conditions as a single serious medical need. 45 cannot point to any evidence that would establish that had the medical staff of the prison handled Reid's mental health issues differently he would not have suffered pulmonary emboli. Without some evidence linking the two together, we cannot treat these conditions as one. We now turn to the specific claims against each of the defendants. 1. Dr. Robert Doe The record establishes that Dr. Doe did not know of any condition Reid had that would lead to pulmonary emboli, but Wood contends that Dr. Doe should have known about such a condition. Wood argues that there are specific instances that should have prompted Dr. Doe to re-examine and re-diagnose Reid. Wood points to Reid's inability or unwillingness to stand up when moving from cell to cell on September 7, his September 14 "seizure" activity, and his complaints of chest pains as events that Dr. Doe knew or should have known about which ought to have prompted him to change his diagnosis or examine Reid again. Dr. Greifinger stated that "[e]ven with clear knowledge of his mental and physical condition, including chest pain, and his clear mental and physical decompensation, including smearing feces and 46 unresponsiveness on his cell floor, health care and security staff did nothing but ignore his life-threatening condition for two whole months." Pl.'s Mem. Ex. R at 5-6. But Dr. Greifinger's statements are conclusory and fail to establish causation, i.e., that if a doctor had known of Reid's chest pains and the other events before his death that that doctor would have diagnosed Reid as having a condition that could result in pulmonary emboli. There is also nothing in Dr. Greifinger's or Dr. Patterson's reports that contradict or call into doubt Dr. Doe's analysis of why Reid's physical condition did not indicate the likelihood of pulmonary emboli. Dr. Doe testified that the symptoms Reid had reported led him to believe that his chest pains were musculoskeletal and a recurring, non-life-threatening condition that Dr. Doe had seen Reid exhibit before. Doe Dep. at 80-81, 90-91. Nothing in plaintiff's expert reports undermines Both of Wood's experts acknowledge that Dr. Doe's analysis. diagnosing pulmonary emboli is difficult, and do not state whether Reid presented the tell-tale signs of such emboli. Greifinger Report at 5-6; Patterson Report at 4. Although plaintiff's experts found fault with the level of care LCP personnel provided Reid, nothing in their reports undermined Dr. 47 Doe's explanations of why he would have ruled out pulmonary emboli based on the facts that Reid reported at the time he examined him. What plaintiff's experts attest to is that Dr. Doe should have diagnosed Reid with a condition that led to pulmonary emboli, but that is a disagreement about Dr. Doe's diagnosis which cannot be the basis for a Fourteenth Amendment inadequate medical treatment claim. Wood also contends that since Nurse Cauler observed seizure activity and Dr. Doe signed off on the progress note, that Dr. Doe should have examined Reid and, thus, avoided the eventual pulmonary emboli and associated pain and suffering. But Nurse Cauler testified that Reid's behavior when she saw him was inconsistent with seizure activity, and the progress note reflected Nurse Cauler's conclusion. Cauler Dep. at 68, 69, 78. Unless Dr. Doe had reason to disbelieve Nurse Cauler's assessment, there would be no reason for Dr. Doe to examine Reid again. Wood cannot point to anything that suggests either subjectively or objectively that Dr. Doe should have known that Nurse Cauler's assessment was incorrect. Unless Wood can point to a principle that doctors should disbelieve their nurses' observations, his claim cannot proceed on this point. This leaves the September 7 incident when Reid crawled 48 between cells rather than walk. One can infer that Dr. Doe knew about this incident because the unusual activity report the corrections officer filled out was copied to the medical department. Lancaster County Def.'s Mem. Ex. Z at 98. But Dr. Doe's failure to deduce from this incident that Reid may have a condition that would result in pulmonary emboli can, at most, amount to negligence, which is insufficient to sustain a Fourteenth Amendment claim. Wood also seeks to hold Dr. Doe liable for failure to provide adequate mental health care to Reid. Both Dr. Doe's and Dr. Powers's testimony establish that Dr. Doe deferred to Dr. Powers and the mental health counselors when it came to psychiatric cases, and only examined and serviced inmates suffering from the simplest of mental health problems. at 18, 31-32; Powers Dep. at 38. Doe Dep. Wood argues that Dr. Doe's failure to properly oversee Dr. Powers amounts to a constitutional injury to Reid. But while Dr. Doe's accepting Dr. Powers's diagnoses and deferring to him in mental health cases might conceivably be considered negligence, we do not believe it rises so high. In any event, such hypothesized negligence cannot amount to a constitutional violation and so we shall dismiss all Fourteenth Amendment claims against Dr. Doe. 49 2. Dr. Stephen Powers Wood argues that Dr. Powers knew that Reid had mental health issues but "chose to ignore his illness and the records revealing the illness." Pl.'s Resp. to Powers's Mem. at 28. Wood faults Dr. Powers for failing to get Reid's full mental health history, thus compromising his diagnosis: "What Dr. Powers is not saying is that when Mr. Reid came for his mental status examination, Mr. Reid had a long record of mental illness and that, had Dr. Powers properly reviewed the record, he would have discovered Mr. Reid's history of chronic mental illness and treatment with powerful antipsychotic medication, as well as Mr. Reid's history of suic

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