Wargo v. Schuylkill County et al

Filing 74

MEMORANDUM and ORDER granting defendants' 52 58 Motions for Summary Judgment; Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 11/14/08 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JEAN WARGO, : No. 3:06cv2156 Plaintiff : : (Judge Munley) : v. : : SCHUYLKILL COUNTY; : GENE BERDANIER, Acting Warden, : Schuylkill County Prison; : FRANK CORI, Schuylkill County : District Attorney; : WILLIAM BALDWIN, President : Judge Schuylkill County; : MICHAEL KRYJAKp; : LT. M. FLANNERY; and : LT. RIZZARDI, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are defendants' motions for summary judgment in this case. Having been fully briefed and argued, the matter is ripe for disposition. B a c k g ro u n d T h is case arises from the death of Tristan W a rg o . Wargo committed suicide while incarcerated in the Schuylkill County Prison ("SCP") on November 6, 2004. (Corrected Statement of Material Facts in Support of Motion for Summary Judgment o n Behalf of Schuylkill County Defendants (Doc. 55) (hereinafter "County D e fe n d a n ts ' Statement") at ¶ 1). The plaintiff in this case is Jean W a rg o , who was Tristan W a rg o 's

g ra n d m o th e r and is the administratrix of his estate. (Id. at ¶ 4(a)). Jean W a rg o was n o t aware that her grandson had previously attempted suicide. (Id. at ¶ 4(c)). Tristan W a rg o never spoke to his grandmother about any emotional problems. (Id.). Tristan spoke to Jean two or three times while he was in prison. (Id. at ¶ 4(d)). He a s k e d her to have his father visit him in prison. (Id.). Two days before he killed h im s e lf, Tristan called to ask his grandmother to put up bail for him. (Id.). She re fu s e d . (Id.). Tristan did not reveal to his grandmother that he was having any p ro b le m s in prison, but simply asked her to help him get out. (Id.). The defendants who remain in the case are: Schuylkill County; Gene B e r d a n ie r, acting warden of the prison since December 2004; Frank Cori, former c h a irm a n of the Schuykill County Prison Board ("Board"); Hon. W illia m E. Baldwin, P re s id e n t Judge of Schuylkill County and Prison Board member; Michael Kryjak, fo rm e r prison counselor, who is now deceased; Lt. Michael Flannery, a prison s u p e rvis o r at the time of the incident; Lt. Rizzardi, a prison officer who placed Tristan in the cell where he died and was responsible for checking him every hour before he d ie d . (Id. at ¶ 5(a-g)). T ris ta n W a rg o was in jail because on October 28, 2004 he had used a s h o tg u n to rob the The Standard Drugstore in McAdoo, Pennsylvania. (Id. at ¶ 4(d)). He stole around $7,000. (Id.). Plaintiff points out that Tristan W a rg o started using O xyc o n tin to treat a back injury. (Plaintiff's Counterstatement of Material Facts (Doc. 6 2 -2 ) (hereinafter "Plaintiff's Statement" at ¶ 1-2). Once cut off from his prescribed

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m e d ic a tio n , W a rg o began to steal from the pharmacy that had previously filled his p re s c rip tio n . (Id. at ¶ 3). Arrest on those charges landed Tristan W a rg o in the S c h u ylk ill County Prison. (Id. at ¶ 4). He had never been arrested before the events th a t led to his death. (Id. at ¶ 5). After his arrest on October 28, 2004, Police Chief John Petrilla transported W a rg o to court, where the judge set bail at $50,000 straight cash. (Id. at ¶ 8). Petrilla then took W a rg o to the SCP. (Id.). During this entire period, W a rg o e xp re s s e d remorse for his actions, but did not make any threats to harm himself or e xp re s s any suicidal thoughts. (Id.). Tristan W a rg o arrived at the prison around 7:45 p.m. (Plaintiff's Statement at ¶ 7). Correctional Officers W o w a k and Murton booked him when he arrived. (County Defendant's Statement at ¶ 9). The officers did not notice any risks of s u ic id a l behavior, but denied that he had been hospitalized recently or seen by any p s yc h ia tric doctor. (Id. at ¶¶ 10-11). Wargo disclosed heart and back problems to th e officers. (Id. at ¶ 12). He reported that he was prescribed medication for these p ro b le m s . (Id. at ¶ 13). The officers noticed that W a rg o appeared to be e xp e rie n c in g withdrawal symptoms. (Id.). Once these conditions were noticed, o ffic e rs placed W a rg o in a medical holding cell and ordered a check every hour. (Id. a t ¶ 15). Once informed by plaintiff of his likely withdrawal from Oxycontin, Lt. R iz z a rd i ordered W a rg o placed in a medical holding cell and ordered one-hour c h e c k s . (Id.). Plaintiff contends that these checks were not performed as directed,

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b u t were limited only to "cursory hourly checks." (Plaintiff's Statement at ¶ 25). W a rg o underwent a medical evaluation at the prison on October 28, 2004. (Defendant's Statement at ¶ 16). He reported that he had an allergy to the antid e p re s s a n t W e llb u trin . (Id.). He listed his current medications as Oxycontin, N e u ro n tin , Skelaxin and Spirazide. (Id.). Wargo told doctors that he had taken O xyc o n tin for 2 ½ years, that he had a hole in his heart, arrythmia, congenital heart d is e a s e and 5 ruptured discs in his back. (Id.). He reported that he only took O xyc o n tin per prescription. (Id.). A physical exam revealed plaintiff was within n o rm a l limits. (Id.). Early in the morning on October 30, 2004, W a rg o told correctional staff that he h a d taken 10-12 Oxycontin tablets that he had smuggled into the jail in his rectum. (Id. at ¶ 17). Though Lt. Flannery went to the cell to examine W a rg o and found n o th in g visibly wrong with him, he nevertheless ordered that W a rg o be placed in a h o ld in g cell, kept under observation and dressed in a special clothing (a "gown") d e s ig n e d to minimize the risk of suicide. (Id. at ¶ 18). Flannery also ordered checks e ve ry fifteen minutes. (Id.). W a rg o never told any prison officials that he had taken th e drugs in an attempt to commit suicide. (Statement of Undisputed Facts in S u p p o r t of Motion for Summary Judgment on Behalf of Defendant Michael Kryjak (D o c . 58-3) (hereinafter "Kryjak Statement") at ¶ 17). The prison counselor who s a w W a rg o after these incidents, Defendant Michael Kryjak, considered W a rg o 's b e h a vio r typical of a drug addict and not evidence of an intent to commit suicide. (Id.

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a t ¶ 20). Correctional Officers reported two incidents involving Tristan W a rg o over the n e xt few days. On October 30, 2004, an officer filed an incident report relating that W a rg o had removed the thread from his mattress. (Defendants' Statement at ¶ 19). The officer removed the thread from the inmate, as well as the mattress. (Id.). Lt. F la n n e ry maintained the order that plaintiff wear a gown and be subjected to fifteenm in u te checks after this incident. (Id.). On October 31, 2004, another correctional o ffic e r filed a report that indicated W a rg o had complained that something was in his e ye . (Id. at ¶ 21). The officer noted that a staple appeared to be sticking out of W a rg o 's eye. (Id.). Lt. Flannery investigated, discovered the staple, and pulled it o u t. (Id.). The staple apparently served to keep open a piercing in W a rg o 's e ye b ro w . (Id.). Officers reported no other incidents involving W a rg o 's behavior. (Id. a t ¶ 24). Lt. Flannery testified that he had never placed W a rg o on suicide watch and d id not consider the reported incidents evidence of Wargo's desire to harm himself. (Id. at ¶ 22). Plaintiff contends that the level of observation and restriction ordered b y Flannery are the equivalent of a suicide watch. (Plaintiff's Statement at ¶ 14). Defendant Michael Kryjak, a prison counselor, met with Tristan W a rg o on N o ve m b e r 1, 2004.1 (County Defendants' Statement at ¶ 23). Kryjak reported that W a rg o had not expressed any desire to commit suicide. (Id.). No other prison p e rs o n n e l reported that W a rg o had expressed any suicidal thoughts. (Kryjak's

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Kryjak is now deceased. 5

S ta te m e n t at ¶ 29). He also testified that he was not aware of plaintiff's destruction o f his mattress or other "incidents" while incarcerated. (Id. at ¶¶ 38, 43-44). Nevertheless, Kryjak recommended that W a rg o 's behavior while in jail and his o b vio u s "issues" with prescription drug use required that observation of him be m a in ta in e d . (Defendants' Statement at ¶ 23). Kryjak testified at his deposition that h e had other contact with W a rg o , periodically visiting him at his cell and speaking w ith him. (Kryjak's Statement at ¶ 23). He recommended observation of W a rg o b e c a u s e W a rg o was not complying with guard's orders, was a drug addict, had s m u g g le d drugs into the jail, and had reported that he spit up dark blood. (Id. at ¶ 2 6 ). Defendants increased W a rg o 's privileges during his days in the prison as his b e h a vio r improved. (Defendants' Statement at ¶ 24). The prison provided W a rg o w ith a uniform on November 3, 2004. On November 4, 2004, the prison ordered that c h e c k s of W a rg o be reduced to every 30 minutes. (Id.). The prison also gave him a b la n k e t on that day. (Id.). The next day, the prison allowed W a rg o to eat his food off a tray and use plastic utensils. (Id.). W a rg o met again with Kryjak on November 5, 2004. (Id. at ¶ 25). Kryjak re p o rte d that W a rg o had not mentioned any psychiatric history, but instead c o m p la in e d about back problems. (Id.). This back injury led W a rg o to begin a b u s in g prescription pain medication. (Id.). After the conversation, Kryjak re c o m m e n d e d that W a rg o be placed in the general population. (Id.). Because of

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o ve rc ro w d in g , W a rg o agreed that he should be placed in "E-block." (Id.). In, Eb lo c k , prisoner are isolated in their cells 23 hours a day and guards cannot see into th e cells on the Block. (Plaintiff's Statement at ¶ 34). The prison transferred W a rg o to E-Block and placed him in a single cell on N o ve m b e r 5, 2004. (Defendants' Statement at ¶ 26). The next day, Correctional O ffic e r Stephen Bloschichak performed a check at 12:25 p.m. (Id. at ¶ 27). Bloschichak recalls that at the time of the check he saw W a rg o standing in his cell, e ith e r next to the desk or the top bunk. (Id.). Lt. Rizzardi, making rounds to deliver m e d ic a tio n , discovered W a rg o hanging from a sheet in his cell at 12:35 p.m. (Id. at ¶ 28). Rizzardi radioed for assistance from other guards. (Id. at 29). He ran into the c e ll and tried to hold W a rg o up to reduce the pressure on his neck. (Id.). W a rg o s e e m e d still to be breathing. (Id.). Within 15 seconds, another correctional officer c a m e into the cell and helped cut W a rg o down. (Id.). Wargo and Rizzardi combined to give W a rg o CPR until emergency medical technicians arrived at the cell. (Id.). The EMTs continued to provide CPR until they left the prison with W a rg o at 2:58. (Id. at ¶ 30). They transferred W a r g o to Good Samaratin Regional Medical Center, w h e re he was pronounced dead at 3:07 p.m. (Id. at ¶ 31). An autopsy performed the next day declared suicide as the cause of death. (Id. at ¶ 32). Investigators fo u n d a suicide note in Tristan W a rg o 's cell, which stated that "I have passed up the o p p o rtu n ity to kill myself too many times but I'm not going to do it this time. Suicide w a s always the plan . . . I have been trying to kill myself since I got into this place but

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n o w I have a REAL way to do it." (Plaintiff's Statement at ¶ 38). Plaintiff Jean W a r g o filed a complaint in this court on November 2, 2006 (Doc. 1 ). The complaint raises four counts. Count I, brought pursuant to 42 U.S.C. § 1 9 8 3 , alleges deliberate indifference to W a rg o 's serious medical needs in violation of th e Fourth and Fourteenth Amendments. The count contends that defendants, d e s p ite knowledge of W a rg o 's past, drug addiction problems, and attempts to harm h im s e lf in prison, did nothing to attempt to prevent him from taking his own life. Count II, also brought pursuant to 42 U.S.C. § 1983, alleges a violation of plaintiff's F irs t and Fourteenth Amendment rights through the pattern, practice and policy of th e County and members of the prison board. Count III, brought pursuant to the W ro n g fu l Death Act (presumably under Pennsylvania law), alleges damages for the p la in tiff related to that death. Count IV seeks damages under the Pennsylvania S u rviva l Act. T h e parties engaged in discovery. They eventually agreed to dismiss certain o f the original defendants. At the close of discovery, the remaining defendants filed m o tio n s for summary judgment (Docs. 52, 58). The parties then briefed the issues, b rin g in g the case to its present posture. J u r i s d ic t i o n A s plaintiff brings her claims pursuant to 42 U.S.C. § 1983, the court has ju ris d ic tio n pursuant to 28 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws or treaties of the

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U n ite d States."). The court has supplemental jurisdiction over plaintiff's state-law c la im pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district courts h a ve original jurisdiction, the district courts shall have supplemental jurisdiction over a ll other claims that are so related to claims in the action within such original ju ris d ic tio n that they form part of the same case or controversy under Article II of the U n ite d States Constitution."). Legal Standard T h e defendants have filed motions for summary judgment. Granting summary ju d g m e n t is proper if the pleadings, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any, show that there is no genuine is s u e as to any material fact and that the moving party is entitled to judgment as a m a tte r of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R . CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged fa c tu a l dispute between the parties will not defeat an otherwise properly supported m o tio n for summary judgment; the requirement is that there be no genuine issue of m a te ria l fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (e m p h a s is in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. International Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a

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re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. Where the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Discussion T h e defendants, in separate motions by Defendant Kryjak (Doc. 58) and the o th e r defendants (the "County Defendants") (Doc. 52) raise several grounds for g ra n tin g summary judgment. The court will address them in turn, as appropriate. i. Section 1983/Prison Suicide P la in tiff contends that defendants should be liable for violating Tristan W a rg o 's rig h ts by not preventing his suicide. A plaintiff seeking to prevail on a prison suicide c la im pursuant to Section 1983 must establish three elements: (1) that the detainee h a d a "particular vulnerability to suicide"; (2) the custodial officer or officers knew or s h o u ld have known of that vulnerability; and (3) those officers "acted with reckless in d iffe re n c e " to the detainee's particular vulnerability. To create liability, "the risk of s e lf-in flic te d injury must not only be great, but also sufficiently apparent that a lay c u s to d ia n 's failure to appreciate it evidences an absence of any concern for the w e lfa re of his or her charges." Woloszyn v. County of Lawrence, 396 F.3d 314, 320 10

(3 d Cir. 2005). Liability cannot lie for negligence; the risk of self-inflicted harm must b e obvious. The burden for proving liability in a prison suicide case is a difficult one to meet, since "a prison custodian is not the guarantor of a prisoner's safety. We c a n n o t infer from the prisoner's act of suicide itself that the prison officials were re c k le s s ly indifferent in their obligation to a take reasonable precautions to protect th e safety of prisoners entrusted to their care." Freedman v. City of Allentown, 853 F .2 d 1111, 1115 (3d Cir. 1988). The defendants argue that the evidence does not demonstrate that plaintiff h a d any particular vulnerability to suicide before he killed himself on November 6, 2 0 0 4 . To establish that the decedent represented a "particular vulnerability to s u ic id e , the plaintiff must demonstrate "a strong likelihood, rather than a mere p o s s ib ility, that self-inflicted harm will occur.'" Wolosyzn, 396 F.3d at 320. D e fe n d a n ts point to a number of facts that demonstrate that plaintiff did not have a p a rtic u la r and noticeable vulnerability to suicide.2

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The facts cited by the defendants include: The arresting officer did not observe any suicidal threats, ideation or behavior; Wargo made no attempt to harm himself during tranport to prison, and did not express a desire to do so; The Chief of Police who transported Wargo to prison did not warn guards that W argo suffered from suicidal tendencies; W argo did not manifest any desire to harm himself or express any suicidal thoughts when he was processed into the prison; Officers did not ignore a self-report of drug addiction and ordered that Wargo be placed under observation for that condition; Officers did not consider Wargo's disruptive behavior as evidence of a suicidal intent; Pulling thread out of prison mattresses, as Wargo did, was a common 11

H e re , the plaintiff apparently contends that Wargo's past psychiatric history, drug addiction and relative youth points to a particular vulnerability to suicide. Evidence indicates that in late 2000, almost five years before his arrest, W a rg o was a d m itte d to a psychiatric hospital. (See Discharge Summary (Doc. 63-2) attached as a n Exh. P2 to Plaintiff's Exhibits to Brief in Opposition to Defendants' Motion for S u m m a ry Judgment (Doc. 63)). He complained of sexual abuse, severe depression a n d a desire to kill himself. (Id.). No other evidence in the record, however, in d ic a te s that this condition persisted at the time he was arrested. In addition, p e o p le who knew W a rg o well and spoke with him while he was incarcerated re p o rte d that they did not consider him likely to harm himself. Wargo's grandmother, th e plaintiff in this action, testified that she spoke to the decedent two or three times b y telephone while he was in prison. (See Deposition of Jean W a rg o , Exh. 59 to C o u n ty Defendants' Motion for Summary Judgment (Doc. 52-57) at 31). In their c o n ve rs a tio n s , W a rg o asked his grandmother to "tell his father to come and see him" a n d inquired about when that visit would occur. (Id.). He also asked his

practice among inmates. They pulled the mattresses apart and crawled inside to get warm; Pulling the staple out of Wargo's eye came at his request. Officers determined that it had been used to keep an eyebrow piercing open. Officers did not consider this a suicide attempt; W hen interviewed, Wargo complained of medical issues, but never reported a desire to kill himself; Observation of Wargo and reports thereof did not reveal any suicidal behavior until he killed himself; and No member of Wargo's family ever advised defendants of a history of suicide attempts. 12

g ra n d m o th e r to help him make bail by pledging her home as security. (Id.). Despite h is desire for release, W a rg o did not report "any problems in jail" to his grandmother; "he just wanted out." (Id. at 32). Joseph H. Krawczyk, who visited W a rg o several times in prison, reported that he had not suspected that Tristan would commit suicide. (Deposition of Joseph K r a w c z yk , Exh. 2 to Michael Kryjak's Motion for Summary Judgment (hereinafter "K r a w c y z k Dep.") (Doc. 58-5) at 42). Krawcyzk had known W a rg o for around two ye a rs , and considered himself "like his uncle." (Id. at 6). "Anytime he had a problem h e talked to [Krawcyzk's] daughter, come up and visit, hung out. It was like having a n o th e r son. Talked to me about anything he wanted." (Id.). Though Wargo "lo o k e d like he was death warmed over, like he was hurting," Krawczyk did not see T ris ta n as "somebody I knew who would do it. I didn't think he would do it but, you k n o w , he could have been." (Id. at 42). He saw W a rg o "in pain," but did not tell a n yo n e at the prison that he had the potential to harm himself. (Id. at 43). Only in re tro s p e c t did he think that he should have warned guards. (Id.). On Krawcyzk's fin a l visit to the prison, guards informed him that W a rg o had committed suicide. (Id. a t 44). He called the guard a "liar" and demanded proof that W a rg o had really killed h im s e lf. (Id.). The court finds that the evidence is not sufficient to establish that W a rg o re p re s e n te d a particular vulnerability to suicide when he arrived at prison, particularly in light of the fact that none of Wargo's behavior during his arrest, transport to

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p ris o n , and initial interviews indicated that he had a desire to harm himself. In a d d itio n , none of W a rg o 's family members or friends reported that they suspected he w o u ld harm himself after his arrest. Krawcyzk, who claimed to be as close an uncle to the decedent, at first refused to believe that W a rg o had killed himself. He had not s e e n any reason to suspect that suicide was imminent. Courts have found a lack of a particular vulnerability to suicide in cases where an inmate denies suicidal ideation a n d family members report that they did not suspect such activity would occur. See, e .g ., Herman v. County of York, 482 F. Supp. 2d 554, 565 (M.D. Pa. 2007) (finding th a t "in the face of [decedent's] repeated denials of suicidal ideation and, indeed, his o w n family's testimony that they did not suspect that he was suicidal . . . we see no re a s o n that their decision not to place [decedent] on suicide watch would fall outside o f their professional judgment.). Schuenemann v. United States, No. 05-2565, 2006 W L 408404, *3 (3d Cir. Feb. 23, 2006) (finding no particular vulnerability to suicide w h e n "ten witnesses, including [decedent's] close family members, observed him . . . [o ve r a period of days and] [n]one of those individuals claimed that [decedent] was a c tin g abnormally or that he gave any indication that he was going to inflict harm u p o n himself."). P la in tiff also points to evidence from expert sources that indicates that persons exhibiting W a rg o 's characteristics­young, first time offenders with drug p ro b le m s ­ a re more likely to commit suicide than other inmates. (See Timothy E. R in g , Ed.D., CONSULTATION REPORT IN THE UNITED STATES DISTRICT COURT FOR THE

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M IDDLE DISTRICT OF PENNSYLVANIA, Included as Exh. P21 to Plaintiff's Statement (D o c . 63-2) (hereinafter "Ring Report")). Plaintiff's expert argues that W a rg o re p o rte d to the prison with "a variety of significant risk factors for suicidality." (Id. at 3 ). Dr. Ring points to W a rg o 's youth, the severity of the crime he had committed and h is awareness of it, his addiction to Oxycontin and his likely withdrawal from the drug a s factors that made him likely to commit suicide. (Id. at 4-7). Plaintiff contends that s u c h information indicates that Wargo represented a particular vulnerability to s u ic id e . The court is not convinced, because case law requires that the evidence e s ta b lis h that the particular individual, not members of a demographic class to which th e individual belongs, exhibits a particular vulnerability to suicide. See, e.g., Joines v. Twp. of Ridley, 229 Fed. Appx. 161, 164 (3d Cir. 2007) (finding that a young, in to xic a te d and apparently irrational prisoner did not suffer from a particular vu ln e ra b ility to suicide, even though an expert identified those characteristics as re p re s e n tin g a heightened risk, because decedent's "behavior in no way d e m o n s tra te d that he was inclined toward self-inflicted harm.").3 Plaintiff has p ro d u c e d no evidence that W a rg o himself represented the suicide risk that would c re a te liability for the prison, and the court cannot ascribe to him a particular vu ln e ra b ility based on broad social and demographic characteristics. Moreover, even if the court were to conclude that Tristan W a rg o suffered from

The court recognizes that Joines, as an unpublished opinion, does not have precedential value. The court nevertheless finds the reasoning used in the case persuasive and cites the case for that reason. 15

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a particular vulnerability to suicide, the evidence does not establish that defendants k n e w or should have known of that vulnerability. To establish that the defendants k n e w or should have known of W a r g o 's particular vulnerability, plaintiff must a d va n c e evidence that "[t]he `strong likelihood' of suicide [was] `so obvious that a lay p e rs o n would easily recognize the necessity for' preventative action [and] the risk of s e lf-in flic te d injury must be not only great, but also sufficiently apparent that a lay c u s to d ia n 's failure to appreciate it evidences an absence of any concern for the w e lfa re of his or her charges." Colburn, 946 F.2d at 1025. The evidence establishes that prison officials were aware of W a rg o 's reported d ru g addiction and potential withdrawal and acted to prevent problems related to that c o n d itio n when Wargo reported to the prison. Such evidence does not establish, h o w e ve r, that defendants knew or should have know of a particular vulnerability to s u icid e on the decedent's part. Instead, that evidence establishes that defendants k n e w decedent was a drug addict; such knowledge does not make defendants a w a re that plaintiff was likely to commit suicide. Plaintiff argues that other in fo rm a tio n possessed by the defendants should have made them aware that W a rg o w a s a danger to himself. She points to three incidents she contends should have m a d e the defendants aware of Tristan W a rg o 's particular vulnerability to suicide: his a lle g e d ingestion of 10-12 Oxycontin Tablets; his pulling of threads from his m a ttre s s ; and a staple that may have become lodged in his eye. A review of each of the individual defendants' contact with the decedent

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re ve a ls that these incidents did not evidence a likelihood of suicide so obvious that th e defendants lacked any concern for W a rg o 's welfare by failing to notice it.4 Lt. R iz z a rd i was not aware of any of these three incidents; instead, Rizzardi helped p r o c e s s W a r g o when he entered te prison. He testified that when Tristan W a r g o first a rrive d he was "quiet" and not "rowdy," but was simply "polite" and willing to "answer [h is ] questions." (Deposition of Scott Rizzardi, Unnumbered Exh. to Plaintiff's Brief in Opposition, (Doc. 63-4) (hereinafter "Rizzardi Dep.") at 52). Wargo told Rizzardi d u rin g his intake that he would be suffering from Oxycontin withdrawal. (Id. at 22). Armed with this information, Rizzardi assigned the decedent to a holding cell. (Id. at 2 3 ). W a rg o did not inform Rizzardi of any suicidal ideation, and Rizzardi testified that W a rg o 's placement in a holding cell was based solely on a desire to spare W a rg o th e conflict with other inmates that could come during withdrawal. (Id.).5 As such,

Only the three individual defendants discussed here had any contact with the decedent between the time he entered the prison and his suicide. None of the other individual defendants had any such contact. The parties agree that Lt. Rizzardi cannot be liable. The court also agrees with the defendants that summary judgment should be granted to Defendants Berdanier, Cori and Baldwin because plaintiff adduced no evidence that establishes they could be liable in their individual capacities, but only as the makers of policy that plaintiff contends violated W argo's rights. Since "`[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity,'" the court finds that the claims against "the defendant officials in their official capacities are only a duplication of the counts asserted against the Township itself." Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55 (1978); Kentucky v. Graham, 473 U.S. 159, 166 (1985)). As such, those defendants would be dismissed from the case regardless of the court's decision on liability against the County and Defendants Flannery and Kryjak. 17
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R iz z a rd i did not possess any evidence that W a rg o intended to harm himself; he c a n n o t be liable based on these facts. Defendant Flannery, in his capacity as supervising Lieutenant, was made a w a re of each of these incidents. Flannery heard from an incident report that W a rg o claimed to have ingested 10-12 Oxycontin pills. (Deposition of Michael F la n n e ry , Unnumbered Exh. to Plaintiff's Brief in Opposition (Doc. 63-6) (hereinafter "F la n n e ry Dep.") at 18). After speaking with him and finding him normal, Flannery p la c e d him in a cell in a gown and ordered 15 minute checks.6 (Id. at 29-30). F la n n e ry found Wargo "talking normally, he was not like­you know, anything out of th e ordinary." (Id. at 21). W a rg o did not explain to Flannery when he had taken the The parties disagree about whether placing Wargo in a gown and ordering frequent checks should be considered placing him on suicide watch. Defendants contend that such orders amounted only to closer observation, and did not indicate that they considered W argo likely to attempt suicide. Plaintiff contends that the prison placed Wargo on suicide watch, as evidenced by these actions. Plaintiff's complaint, however, is not that the prison placed Wargo in a gown and ordered frequent checks, but that officials took him off these restrictions after several days and placed him a setting where he would be able to harm himself. The evidence indicates that Wargo did not exhibit any additional disruptive or potentially suicidal behavior after the last of the three incidents in question occurred on October 31 and he was released to the cell where he killed himself on November 6. Even if a juror were to conclude that Wargo had exhibited a desire to harm himself during the three incidents in question, that juror would also have to find that a reasonable person would not conclude that "[t]he `strong likelihood' of suicide [was] `so obvious that a lay person would easily recognize the necessity for' preventative action [and] the risk of selfinflicted injury must be not only great, but also sufficiently apparent that a lay custodian's failure to appreciate it evidences an absence of any concern for the welfare of his or her charges." Colburn, 946 F.2d at 1025. Nothing in Wargo's behavior signaled that careful watch remained necessary. He had not expressed a desire to harm himself in the intervening days, and did not appear withdrawn or extraordinarily depressed. Allowing W argo access to more normal prison conditions after he exhibited normal behavior could not be considered display of "an absence of any concern for [his] welfare." Id. The prison cannot be expected to keep a close watch on an inmate who no longer displays a need for that watch. 18
6

d ru g s , or why he took them, and Flannery was unsure whether W a rg o was "really b e in g straightforward with" him. (Id. at 26). Flannery also received a report that W a rg o had pulled a handful of string from his mattress. (Id. at 35). He testified that h e did not take any action to determine why W a rg o had done so "[b]ecause basically w e have had this done before." (Id. at 36). Other inmates had "opened" up m a ttre s s e s "because they were cold and [wanted to] crawl inside." (Id. at 38). Flannery had never heard of an inmate harming himself with materials from the m a ttr e s s . (Id. at 43). Flannery also removed the staple that had been lodged in p la in tiff's eye or eyebrow.7 Flannery testified that he did not call the medical d e p a rtm e n t to remove the staple because prisoners frequently used staples "[t]o k e e p piercing holes open, ears, eyes, nose. Try anything they will." (Id. at 46). W a r g o 's use of the staple therefore did not concern Flannery. (Id.). Flannery spoke w ith W a rg o while removing the staple and found his demeanor had not changed fro m their earlier encounters. (Id. at 60). Flannery did not regard any of these in c id e n ts as evidence that W a rg o intended to harm himself. (Id. at 58). Defendant Kryjak interviewed W a rg o after he claimed to have ingested 10-12 The parties dispute where the staple was when Flannery removed it. Flannery in his testimony insisted that he removed the staple from Wargo's eyebrow. The incident report, however, related that the staple was in his eye itself. (Flannery Dep. at 44-47). In any case, the fact that Wargo did not accompany the reports of the staple in or near his eye with any other unusual behavior, acted calmly when Flannery came to remove it, and did not tell anyone that he intended to harm himself is evidence that a reasonable person would not have seen such behavior as evidence of an obvious likelihood of suicide. Moreover, in Flannery's experience inmates frequently used staples to keep piercings open, and thus he did not have reason to assume that Wargo's use of a staple was an attempt to inflict harm on himself. 19
7

O xyc o n tin tablets. (Deposition of Michael Kryjak, Unnumbered Exh. to Plaintiff's B r ie f in Opposition (Doc. 63-12) (hereinafter "Kryjak Dep.") at 46). Kryjak c o n s id e re d W a rg o 's action in taking the drugs "abnormal," but not suicidal. (Id. at 4 8 ). In his experience, addicted prisoners often attempted to smuggle drugs into jail. (Id. at 48-49). He was unaware whether 10-12 tablets was an excessive amount of O xyc o n tin to consume. (Id.). Wargo had told Kryjak that he was addicted to the d ru g s and likely to go through withdrawal, but Kryjak did not believe that W a rg o 's w ithd ra w a l would necessarily make him suicidal. (Id. at 49). Kryjak was not aware o f the other two incidents. (Id. at 61-62). Kryjak spoke with W a rg o several times between November 1 and November 5 , 2005. (Id. at 67). Kryjak prepared a report of his November 1, 2005 meeting with W a rg o . (Incident Report prepared November 1, 2004, Exh. P15 to Plaintiff's Brief in O p p o s itio n (Doc. 63-2)). According to Kryjak, W a rg o "did not express any suicidal id e a tio n ." (Id.). Still, Kryjak recommended that W a rg o remain under observation "d u e to his actions here at S.C.P. as well as resident's issues with prescription pain k ille rs ." (Id.). W a rg o complained that "the confinement was making him crazy," and th a t he desired release from the holding cell. (Id. at 68). Kryjak reported that by N o ve m b e r 5, 2005, "Tristan became a very pleasant compliant individual." (Kryjak D e p . at 72). Kryjak made the decision to move W a rg o out of his holding cell and to g ive him prison clothing, sheets and a blanket. (Id. 76, 106). In recommending that re le a s e , Kryjak reported that W a rg o denied any "psychiatric history" and complained

20

m o s tly of back problems that had led to an addiction to prescription pain pills. (Incident Report Exh. 23 to County Defendants' Motion for Summary Judgment (D o c . 52-26)). Concluding that W a rg o had "no reported psychiatric history and no m e d ica l issues, Kryjak recommended his placement in the general population." (Id.). W a rg o agreed to the recommendation. (Id.). The court finds that this evidence does not establish that these defendants k n e w or should have known that Wargo had a particular vulnerability to suicide. W a rg o never expressed to anyone a desire to kill himself after his arrest, and all the e vid e n c e indicates that he behaved calmly and rationally in his interactions with g u a rd s and other prison personnel. None of the facts here adduced­that W a rg o m a y have ingested numerous Oxycontin tablets but did not display any unusual b e h a vio r after doing so, that he ripped threads from his mattress but did not attempt in any way to harm himself with them, and that he had a staple somewhere in or n e a r his eye that an officer had to remove­would have made W a r g o 's intentions "so o b vio u s that a lay person would easily recognize the necessity for preventative a c tio n ." Colburn, 946 F.2d at 1025. Plaintiff also contends that the defendants should have been aware of d e c e d e n t's past history of psychiatric treatment and history of depression, and this a w a re n e s s should have alerted them to a particular vulnerability to suicide on W a rg o 's part. The Third Circuit Court of Appeals has noted that "[c]ustodians have b e e n found to `know' of a particular vulnerability to suicide when they have had

21

a c tu a l knowledge of an obviously serious suicide threat, a history of suicide a tte m p ts , or a psychiatric diagnosis identifying suicidal propensities." Colburn, 946 F .2d at 1025 n.1. No evidence, however, indicates that the defendants were aware o f W a rg o 's history of psychiatric treatment when he arrived at the prison. Instead, th e evidence shows that W a rg o denied to guards and counselors that he had a p s yc h ia tric history. Instead, he informed them that he had a drug addiction and w o u ld probably face withdrawal symptoms. Reports also indicate that W a rg o 's b e h a vio r was normal when he arrived at the prison and that he conversed with g u a rd s in a normal fashion. As such, defendants neither knew or should have k n o w n of W a rg o 's past history of severe depression and suicidal ideation. Plaintiff's argument that W a r g o 's reported allergy to W e llb u t rin should have p u t defendants on notice of W a rg o 's potential mental health problems is similarly u n a va ilin g . Even assuming that defendants should have recognized W e llb u trin as a n anti-depressant, no evidence indicates that W a rg o informed the guards when he h a d last taken W e llb u trin or that he still had a prescription for any anti-depressant. In any case, the question this matter is whether defendants knew or should have k n o w n of a particular vulnerability to suicide. Mere knowledge that a prisoner was at s o m e unspecified point in the past prescribed an anti-depressant, without more, d o e s not put anyone on notice of a particular vulnerability to suicide. Millions of A m e ric a n s take anti-depressant medication, and no rational lay-person would

22

a s s u m e that all of those people are likely to commit suicide.8 Indeed, the training th a t the defendants received about depression emphasized that "[h]ow long s o m e o n e must take a psychotherapeutic medication depends on the disorder. Many d e p re s s e d and anxious people may need medication for a single period­perhaps for s e ve ra l months­and then never have to take it again." (Training: FTAC's Serious M e n ta l Illness: W h a t Corrections Officers Need to Know, Exh. 11 to County D e fe n d a n ts ' Motion (Doc. 52-14) at 42). The facts in this case are like those in Colburn v. Upper Darby Township, 946 F .2d 1017 (3d Cir. 1991). In Colburn, the Court of Appeals found that the trial court h a d properly granted summary judgment to a jail guard who had searched the d e c e d e n t. The guard knew that the decedent "was intoxicated, she had an a rg u m e n t with her boyfriend, she had tried to ingest three pills, and a bullet had been fo u n d and removed from her pocket." Id. at 1026. A post-mortem examination had a ls o revealed faint scars that could have come from a previous suicide attempt

The Center for Disease Control and Prevention (CDC) has reported that in 2002 more than 5 percent of American men and more than 10 percent of American women reported that they had used an anti-depressant drug in the previous month. Center for Disease Control and Prevention, HEALTH, UNITED STATES, 2007 W IT H CHARTBOOK ON TR END S IN THE HEALTH OF AMERICANS, at 88, available at http://www.cdc.gov/nchs/data/hus/hus07.pdf#fig36. Thus, many Americans have or will suffer from depression at some point in their lives, and use pharmaceuticals to treat the condition. The suicide rate in the United States in 2005 was 11.01 deaths per 100,000 population. Center for Disease Control and Prevention, SUICIDE FACT SHEET, SUMMER 2008, available at www.cdc.gov/ncipc/dvp/suicide/suicide_data_sheet.pdf. The rate of antidepressant use therefore far exceeds the rate of suicide. Accordingly, the fact that a person at one time took an anti-depressant to which he was allergic would perhaps make a prison guard aware that an inmate faced depression sometime in his past, but would not put anyone on notice that the person was likely to commit suicide. 23

8

"ye a rs earlier." Id. No one at the jail had noticed these scars. Id. The decedent h a d never been diagnosed with "a mental illness characterized by a high risk of selfin flic ted harm." Id. No evidence suggested that the defendant "was or should have b e e n aware of anything else in [decedent's] past suggesting that she had a particular vu ln e ra b ility to suicide." Id. Similarly, in Freedman v. City of Allentown, the court fo u n d that granting a motion to dismiss plaintiff's prison-suicide-related case was p ro p e r. The police officers who supervised and processed the decedent had not b e e n informed of his suicidal tendencies. Freedman, 853 F.2d at 1116. Still, d e c e d e n t had "large, prominent scars on his wrists, inside of his elbows and neck" a n d the defendants had observed them. Id. Failing to recognize such scars as e vid e n c e of suicidal tendencies, however, "amount[ed] only to negligence" and could n o t give rise to a Section 1983 claim. Id. Here, W a rg o had a past history of suicidal th o u g h ts of which he never made the defendants aware. No one at the prison knew o f his past psychiatric treatment, and no one in W a rg o 's family warned guards of his p a s t condition. W a rg o allegedly took drugs while in prison, though the drugs did not c h a n g e his behavior and were not accompanied by any claims of a desire to harm h im s e lf. W a rg o possessed a device (the staple) that could cause him harm, but how o r if he planned to use it to hurt himself remained unclear. In short, as in Colburn, n o th in g in W a rg o 's behavior made his intentions so obvious that "a lay custodian's fa ilu re to appreciate it evidences an absence of any concern for the welfare of his or h e r charges." Colburn, 946 F.2d at 1025.

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A c c o rd in g ly , the court finds that summary judgment is warranted for all of the in d ivid u a l defendants on plaintiff's Section 1983 prison-suicide claim. The evidence d o e s not indicate that W a rg o represented a particular vulnerability to suicide when h e entered the prison. Even if he had, the evidence also indicates that defendants' in te ra c tio n s with him did not alert them to this particular vulnerability. The legal s ta n d a rd in this area provides for liability in cases where prison officials callously ig n o re d what should have been an obvious vulnerability to suicide on the decedent's p a rt. W h ile the court is sympathetic to the plaintiff's loss, the evidence here does not m e e t that exacting standard. As such, the court must dismiss this claim.9 ii. Policy and Practice D e fe n d a n ts also seek summary judgment on plaintiff's claims against the C o u n ty . Respondeat superior liability does not exist for municipalities in Section 1 9 8 3 cases. The Supreme Court has held that "[o]nly where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to th e rights of its inhabitants can such a shortcoming be properly thought of as a city `p o lic y or custom' that is actionable under § 1983." City of Canton v. Harris, 489 U .S . 378, 389 (1989). Further, "[w]hen a plaintiff alleges that a municipality has not d ire c tly inflicted an injury, but has caused an employee to do so, stringent standards o f culpability and causation must be applied to ensure that the municipality in a §

Because the court finds that no evidence could support these initial elements of a prison-suicide-related claim, the court finds it unnecessary to address whether defendants' behavior in caring for Wargo amounted to reckless indifference. 25

9

1 9 8 3 suit is not held liable solely for the conduct of its employee." Reitz v. County of B u c k s , 125 F.3d 139, 145 (3d Cir. 1997). These strict standards exist because "in e n a c tin g § 1983, Congress did not intend to impose liability on a municipality unless d e lib e ra te action attributable to the municipality itself is the `moving force' behind the p la in tiff's deprivation of federal rights." Board of the County Commissioners of Bryan C o u n ty, Oklahoma v. Brown, 520 U.S. 397, 399 (1997). In order to prevail on such a claim, "a plaintiff seeking to impose liability on a m u n ic ip a lity under § 1983 [must] identify a municipal `policy' or `custom' that caused th e plaintiff's injury." Id. at 403. Liability attaches either to an official policy or to a "cu s tom " that constitutes a "practice . . . so widespread as to have the force of law." Id. at 404. In the prison suicide context, "the plaintiff must (1) identify specific tra in in g not provided that could reasonably be expected to prevent the suicide that o c c u rre d , and (2) must demonstrate that the risk reduction associated with the p ro p o s e d training is so great and so obvious that the failure of those responsible for th e content of the training program to provide it can reasonably be attributed to d e lib e ra te indifference to whether the detainees succeed in taking their lives." W o lo s z yn , 396 F.3d at 325 (quoting Colburn, 946 F.2d at 1029-30). The Defendant County's brief contains exhibits that demonstrate the a d m is s io n s and suicide prevention policies in place at the prison when W a rg o a r rive d there. The SCP "Offender Admission Procedures" require officers to refuse "to accept into custody any offender who requires immediate medical attention or

26

w h o gives clear signs of serious mental illness." (Offender Admission Procedures, E x h . 1 to County Defendants' Motion for Summary Judgment (Doc. 52-4) at 2). The s ta ff member in charge of admissions also undertakes an "initial risk assessment on e a c h committed offender based on any evidence that he or she may be suicidal, p ro n e to victimization or violence, or may be a potential protective custody case or p re s e n t some other special management need." (Id.). Among the risk factors a d d re s s e d by the procedures include "suicidal tendencies, history of past suicide a tte m p ts or threats;" health problems; substance abuse or addiction; mental health s ta b ility ; vulnerability/victimization risk; history of sexual assaults, either in or out of p ris o n . (Id.). The procedures also require staff to "be alert for offenders who display s ig n s of mental illness or suicidal inclinations." (Id. at 3). Staff who discover such p ro b le m s are required to "refer [the prisoner] to the Shift Lieutenant and medical staff for immediate evaluation while maintaining direct, constant supervision at all times." (Id.). In that setting, staff is also required to remove "all potentially harmful objects" fro m the holding cell, `"including belts and shoelaces." (Id.). The prison also established a policy on Medical and Health Care Screening (H e a lth Care Screening, Exh. 2 to Defendants' Motion (Doc. 52-5)). This document s e rve s to describe the procedures used for establishing and maintaining medical re c o rd s . (Id.). The procedures require that a screening form be created to record a n d document an inmate's health issues. (Id.). Those completing the form were re q u ire d to document information on an inmates "mental health problems or history

27

a n d mental status"'; "history of substance abuse"; "history of suicide attempt"; and "o th e r apparent medical or mental health problems." (Id.). Another local policy d e s c rib e d routine screening procedures established at the prison designed to id e n tify "acute illness, infectious disease and suicide risk at S.C.P." (Routine S c re e n in g Procedures, Exh. 3 to County Defendants' Motion (Doc. 52-6). The policy re q u ire s that a screening take place that "include[s] questions and observation in te n d e d to identify mentally impaired offenders who may have problems adapting to the detention setting or who may be imminently dangerous to themselves or others." (Id.). The local policy on suicide prevention and intervention also provides for "a s u icid e prevention program [which] will operate under the direction of mental health s ta ff." (Suicide Prevention and Intervention, Exh. 4 to County Defendants' Motion (D o c . 52-7)). The policy provides that the program "will operate under the direction o f mental health staff to prevent offenders from harming themselves in any way and s p e c ific a lly to intervene in suicidal behavior." (Id.). The policy required that any o ffe n d e r "exhibit[ing] behavior that is suicidal, homicidal or otherwise extremely in a p p r o p r ia te " be moved to a medical cell to be observed. (Id.). The policy also re q u ire s that a psychiatric evaluation of the prisoner be arranged. (Id.). The policy a ls o required training of staff members to recognize indicators of potential suicide, s u c h as a "past history of suicide attempts"; "active discussion of suicide plans"; "d ra s tic " changes "in eating, sleeping or other personal habits"; a "crisis" in the p ris o n e r's personal life, "such as sentencing"; and a "loss of interest in activities or

28

re la tio n s h ip s the offender had previously enjoyed or engaged in." (Id.). Finally, a memorandum issued by Deputy W a rd e n Berdanier on August 10, 2 0 0 0 establishes prison policy for dealing with "suicide threats." (Suicide Threats, E x h . 5 to County Defendants' Brief (Doc. 52-8)). Under this policy, "if a resident ve rb a liz e s a suicidal threat to an officer, that officer should radio the shift Lieutenant to come to the location to evaluate." (Id.). The Lieutenant, upon hearing "any form o f self-harm/suicide ideation . . . should . . . move the resident to a medical or h o ld in g cell for observation." (Id.). In addition, the policy ordered the removal of all c lo th in g from the resident, the provision of a paper gown and the institution of fifteen m in u te checks. (Id.). The Lieutenant was also ordered to write a report of the re s id e n t's behavior and insure that the Counselor's Officer received the report. (Id.). If confronted with an actual suicide attempt, the shift Lieutenant was to contact the w a rd e n and Counselor Kryjak. (Id.). The policy also provides that when "a resident re s p o n d s being a recipient of psychiatric/mental health treatment and is acting in an o b s e rva b le bizarre manner" during intake questioning that resident should be placed in a "holding/medical cell with a standing order of 15 minute checks." (Id.). The o ffic e r was to write a report and issue the inmate normal jail wear, unless his b e h a vio r counseled against such treatment. (Id.). The prison also provided training for corrections officers on prisoner's mental h e a lth issues. (See Serious Mental Illness: What Corrections Officers Need to K n o w , Exh. 11 to County Defendants' Motion (Doc. 52-14)). Defendants Kryjak,

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F la n n e ry and Rizzardi all attended this training, which took place on February 11, 2 0 0 4 . (Id. at 1). The materials associated with this training addressed serious m e n ta l illnesses, such as schizophrenia, bipolar disorder and major depression. (Id. a t 12). The program also examined the relationship between depression and s u b s ta n c e abuse and dependence. (Id. at 14). The training also discussed the p r e v a le n c e of mental illness in prisons and the likelihood of violent behavior by such in m a te s . (Id. at 25-28). The training on depression included a description of the c o n d itio n and its symptoms, which included an "utterly dejected mood" and a "h o p e le s s " outlook. (Id. at 39). Other symptoms identified included a "loss of in te re s t in other people," a sense of personal worthlessness, a slowing of thoughts a n d actions, "persistent sadness," guilt, insomnia, oversleeping, lethargy, suicidal th o u g h ts or actions and irritability, complaints of headaches, digestive disorders, and p a in . (Id.). The training listed likely medications, such as Zoloft, W e llb u trin and C e le xa . (Id.). Officers also learned of the medication process; the training described th e purpose of such medication and its varying uses and effects on patients. (Id. at 4 1 -4 2 ). The training also provided officers with statistics on national suicide rates and th e rates of suicide among various demographic groups and a list of "risk factors" for s u ic id e . (Id. at 52-53). Materials noted that "more than 90 percent of suicide victims h a ve had a mental and/or substance abuse disorder." (Id.) (emphasis in original). Further, the suicide risk for a person with "a diagnosable depression" is six times

30

g re a te r than for a person not suffering from the illness. (Id.). In prisons, adults "with d e p re s s io n who also abuse drugs or alcohol" were more likely to attempt suicide. (Id.). Though the training noted that "[m]any people have one or more risk factors a n d are not suicidal," officers nevertheless received a list of such factors that in c lu d e d a "prior suicide attempt; family history of mental disorder or substance a b u s e ; family history of suicide; family violence, including physical or sexual abuse; fire a rm s in the home; incarceration; and exposure to the suicidal behavior of others." (Id. at 54) (emphasis in original). Officers were encouraged in the training to ask in m a te s if they had thought about suicide, whether they had a plan to kill themselves o r taken any steps to complete that plan and whether they had ever attempted to kill o r harm themselves in the past. (Id. at 55). The training materials also provided lists o f the causes of suicide among prisoners "clues" to warn officers that an inmate m ig h t attempt suicide. (Id. at 59-60). Plaintiff points to several alleged deficiencies in these policies and training. She argues that the forms the prison provided officers for making an initial a s s e s s m e n t of inmates were inadequate. They did not provide officers with a list of q u e s tio n s meant to elicit critical information about a prisoner's suicide risk. The fo rm s apparently did not encourage officers to ask prisoners about their past and s e a rc h for several factors that would have revealed a predisposition to suicide. Therefore, the defendants were unaware that W a rg o had a mother who was an a lc o h o lic , that he had been the victim of abuse by a stepfather and other caregivers,

31

in c lu d in g a therapist who sexually molested him, that he had been treated for severe d e p re s s io n , and had attempted suicide multiple times. Prison counseling policies a ls o did not require Kryjak to inquire into any of these suicide factors. Plaintiff also c ritic ize s prison policies that made Defendant Kryjak the "gatekeeper" for access to p s yc h ia tric services, but did not require that guards report to him any questionable or in a p p ro p ria te behavior on an inmate's part. This policy prevented W a rg o from g e ttin g the treatment he needed, and prevented Kryjak from learning about W a rg o 's d e s tru c tio n of the mattress and the staple lodged (perhaps) in his eye. P la in tiff also provides an expert report written by Lindsay M. Hayes, project d ire c to r of the National Center on Institutions and Alternatives. Hayes is editor of the J a il Suicide/Mental Health Update Newsletter and has authored more than 60 a rtic le s on jail suicide prevention. Hayes terms the prison's suicide policies "grossly in a d e q u a te ." (Assessment of W a rg o v. Schuykill County, et Al, Exh. P16 to Plaintiff's B r ie f in Opposition (Doc. 63-2) at 12). Though the policies required that inmates p la c e d on suicide watch receive a "psychiatric evaluation," the prison employed only a part-time consulting psychiatrist, and no psychiatrist ever assessed W a rg o 's risk of s u ic id e . (Id. at 12-13). Hayes contends that the prison had a practice of allowing p e rs o n s not trained in psychiatry to discharge inmates from suicide watch, and that this practice placed potentially suicidal inmates in danger. (Id. at 13). The expert

a ls o contends that the prison's written suicide prevention policy was inadequate. (Id. a t 15-16). This written policy consisted of two documents, a one-page narrative that

32

d e s c rib e d warning signs and directed the reader to other documents, which included a one-page memorandum on suicide threats written by Deputy W a rd e n Berdanier. (Id. at 16). This written policy was "grossly inadequate" because it did not provide g u id a n c e on how to identify at-risk inmates and offered little guidance on how to m a n a g e suicidal inmates. (Id.). Further, the policy did not discuss the intake s c re e n in g process, had an inadequate intake form and had no requirement that staff re p o rt dangerous behavior to counselors. (Id.). A n o th e r expert report supplied by the plaintiff, that of Dr. Timothy Ring, a lic e n s e d psychologist, also criticized the suicide prevention policies followed by the d e fe n d a n t county. (See Ring Report). After explaining the several risk factors which h e contends made W a rg o likely to commit suicide, Dr. Ring argues that the prison s h o u ld have engaged in "[a] more in-depth psychological assessment" that would h a ve revealed W a rg o 's history of depression, the severity of his drug addiction and th e chronic pain that led to that addiction. (Id. at 7). Such an assessment would h a ve led the prison to an inpatient hospitalization that would have assessed his d e p re s s ive state and placed him on a more careful and longer suicide watch. (Id.). Ring also contends that the prison's failure to have a "qualified mental health p ro fe s s io n a l"e va lu a te W a rg o , instead leaving the task to Kryjak, represented an e rro r that led to W a rg o 's death. (Id. at 8). Kryjak lacked any professional license to s e re as a counselor and had no training in evaluating mental health problems. (Id. at 9 ). Moreover, Ring insists, the qualified mental health professional on the staff was

33

n o t available to treat W a rg o and was never given critical information about his c o n d itio n . (Id. at 11). Communication between guards and mental health staff was in a d e q u a te and fell far below professional standards. (Id.). Plaintiff's criticisms of these policies center around what mandating a more d e ta ile d collection of data would have revealed to the defendants about W a rg o 's h is to ry of family difficulties, substance and sexual abuse, and past depression and s u icid e attempts. W ith o u t such information, the jail could not conduct an adequate s u ic id e assessment, and these failings led to W a rg o 's death. Prison policies did not c o n ta in specific mandates to solicit such information, either to intake processors or to counselors like Kryjak. Similarly, the prison in practice did not make adequate re fe rr a ls to a psychiatrist when an inmate engaged in inappropriate and questionable b e h a v io r mandatory, but instead relied on guards to report such behavior to Kryjak, w h o then had the option of referring inmates. Plaintiff also argues that the prison h a d a practice or policy of allowing inmates who had recently been on suicide watch o r close observation to be transferred to E-Block, where they would have enough iso la tio n to harm themselves. These policies, she claims, led to W a rg o 's suicide. The court finds that plaintiff has not met her burden of presenting evidence th a t a jury could conclude proves that "the risk reduction associated with the p ro p o s e d training is so great and so obvious that the failure of those responsible for th e content of the training program to provide it can reasonably be attributed to d e lib e ra te indifference to whether the detainees succeed in taking their lives."

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W o lo s z yn , 396 F.3d at 325. "W h e n evaluating the magnitude and obviousness of th e risk involved, the relevant risk is not the suicide risk in the absence of a p re ve n tio n program but the additional reduction in suicide risks that would have been o c c a s io n e d by the addition of the proposed training." Colburn, 946 F.2d at 1030. Here, the additional training proposed by the plaintiff consists in part of an intake fo rm with specific questions that would allegedly lead to a clearer identification of in m a te s with suicide risks because their personal histories and chemical d e p e n d e n c ie s . The evidence indicates, however, that training for guards explained th e very risks that plaintiff identifies and urged guards to be aware of them. Similarly, plaintiff's contention that referral to a psychiatrist when inappropriate b e h a vio r occurred should have been mandatory and not left to Kryjak's discretion w o u ld not seem to a reasonable jury an obvious risk reduction; not all unusual, d is ru p tiv e , or inappropriate behavior is suicidal, and leaving referral to an e xp e rie n c e d counselor does not represent deliberate indifference to a serious risk. Finally, W a rg o 's confinement in Block E was contrary to prison policy for those on s u ic id e watch; plaintiff has not identified a deficiency in that area. A jury could not fin d that the prison ignored risk reductions so obvious that deliberate indifference to w h e th e r inmates would take their lives occurred. Accordingly, no reasonable juror could find that the defendants followed p o lic ie s so deficient that defendants could be liable for Wargo's suicide. Summary ju d g m e n t is appropriate for the defendants on plaintiff's failure-to-train claim.

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ii. State law claims P la in tiff raises claims under Pennsylvania law against various defendants. Because the court has found that plaintiff cannot prevail on any of her federal claims, e xe rc isin g pendant jurisdiction over those state-law claims would be inappropriate h e re . If the federal claims in a case are dismissed prior to trial, the state claims s h o u ld be dismissed as well. United Mine W o rk e rs v. Gibbs, 383 U.S. 715, 726 (1 9 6 6 ). Conclusion T ris ta n W a rg o 's death was a tragedy, and the court sympathizes with the d e s ire of his surviving loved ones to obtain some degree of redress for their loss. Federal law, however, limits recovery in prison suicides to those cases where the b e h a vio r of prison officials was so egregious that it represented deliberate in d iffe re n c e to an obvious risk. That was not the case here. The court has found th a t no evidence indicates that plaintiff suffered from a particular vulnerability to s u ic id e when he arrived at the Schuylkill County Prison. The court has also found th a t none of the prison's suicide-prevention policies were so lacking as to present a d e lib e ra te indifference to the chance that a prisoner would commit suicide. The c o u rt will therefore grant the defendants' motions for summary judgment. An a p p ro p r ia te order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JEAN WARGO, : No. 3:06cv2156 Plaintiff : : (Judge Munley) : v. : : SCHUYLKILL COUNTY; : GENE BERDANIER, Acting Warden, : Schuylkill County Prison; : FRANK CORI, Schuylkill County : District Attorney; : WILLIAM BALDWIN, President : Judge Schuylkill County; : MICHAEL KRYJAK; : LT. M. FLANNERY; and : LT. RIZZARDI, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 14th day of November 2008, the defendants' motions for summary judgment (Docs. 52, 58) are hereby GRANTED. The Clerk of Court is d ire c te d to CL