Peet v. Beard et al

Filing 102

MEMORANDUM OPINION re 79 MOTION for Summary Judgment filed by Renee Zobitnee, David Pierre, Manda Steinour-Eger, John A. Palakovich, Scott Seese. Signed by Magistrate Judge Martin C. Carlson on May 12, 2015. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE PEET,
Plaintiff
v.
JEFFREY A. BEARD, et al.,
Defendants

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Civil No. 3:10-CV-482
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION AND STATEMENT OF THE CASE
On March 16, 2008, at around 10:00 p.m., Lawrence Peet, an inmate in the

custody of the Pennsylvania Department of Corrections previously housed at the State
Correctional Institution at Camp Hill, suffered the second of two seizures that day
while he was lying on his bunk, which was situated next to a scalding hot radiator.
After his second seizure of the day, Peet collapsed out of his bed and became trapped
against the radiator, with his face in direct contact with the burning surface. The
record indicates that a frantic scene then ensued within the cell and on the cell block,
with Peet’s cellmate screaming for help and other inmates causing a commotion.
Nevertheless, according to some evidence in the record, the response to the
emergency was slow, and it took anywhere from five to ten minutes before

corrections officers arrived at the cell door. Meanwhile, Peet was convulsing, spitting
up blood, all the while with his face pinned against the radiator for as long as 15
minutes before corrections officers entered the cell and provided aid. Although the
parties dispute whether corrections officers responded adequately under the
circumstances, what is not disputed is that by the time correctional officers arrived,
Peet’s face had been in direct contact with the radiator for several minutes, and the
results were ghastly:

Peet suffered extreme burns, facial disfigurement, and

permanent blindness in his right eye. He required extensive hospitalization in a burn
unit and had multiple surgeries, including skin grafts.
Peet commenced this civil action on March 3, 2010, asserting claims against
more than 50 DOC officials and employees. Peet alleged that the defendants violated
his constitutional rights through their deliberate indifference to his epileptic
condition, in violation of the Eighth Amendment to the United States Constitution,
and that their indifference resulted in Peet suffering his second seizure unsupervised
in a cell, and resulted in Peet sustaining severe injury. Peet also alleged that the
defendants violated his due process rights under a “state created danger” theory of
liability, asserting that the defendants affirmatively acted in a manner that exposed
to Peet a foreseeable and increased risk of serious harm that later ensued.

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The parties subsequently engaged in extensive discovery. Following this
process, and the exchange of expert reports, Peet agreed to dismiss all but five of the
original defendants, whom he determined had direct involvement in the constitutional
deprivations alleged. Following this stipulated dismissal, Peet continues to assert his
claims against the former Superintendent of SCI-Camp Hill, John Palakovich; Unit
Manager Renee Zobitne; Sergeant Scott Seese; and Corrections Officers David Pierre
and Manda Steinour-Eger (collectively, the “defendants”). Peet seeks to hold
Palakovich and Zobitne liable for the alleged constitutional violations based upon
their asserted failures as supervisors, and their own deliberate indifference to policies
and procedures that exacerbated his risk of injury. Peet’s claims against the
remaining three defendants are based on his allegation that they were indifferent to
the risk of harm that Peet faced by returning to his prison cell that contained a hot
radiator after suffering a serious seizure; and that they responded in a dilatory and
indifferent manner after Peet suffered the seizure that resulted in his severe injuries.
The remaining defendants have moved for summary judgment on Peet’s claims,
and the motion is fully briefed. Upon consideration, the motion will be granted in
part and denied in part.

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II.

FACTUAL BACKGROUND1
On or around January 11, 2008, Lawrence Peet was transferred from the

Lancaster County Jail to SCI-Camp Hill. During his initial intake at the state prison,
Peet was subjected to a physical examination, after which it was noted that Peet was
5' 9" and weighed 360 pounds. He presented with a history of coronary artery
disease, having suffered a heart attack in 1995. The records suggest that Peet had a
constellation of serious medical challenges, as it was also noted that he suffered from
hypertension, chronic venous insufficiency, obesity, and lymphedema. (Doc. 92, Ex.
4.)
On March 7, 2008, Peet suffered a seizure at SCI-Camp Hill. The seizure was
serious enough that it required him to be transported from the prison to Holy Spirit
The parties have submitted voluminous evidentiary records to the Court,
and have offered competing statements of fact. Although the defendants seem to
suggest that the Court should ignore some factual evidence in the record that the
plaintiff identified, or that the plaintiff should not be permitted to interpose facts
that are not directly responsive to assertions that the defendants have made, we
disagree. The familiar standard applicable to summary judgment practice requires
that we consider the evidence in the record in the light most favorable to the nonmoving party, and resolve reasonable inferences in his favor. Summary judgment
is appropriate only if there is no evidence in the record to support the plaintiff’s
version of the events alleged, and to support the claims asserted. The plaintiff has
presented a factual narrative, with supporting evidence, that provides some factual
support for his deliberate indifference claims, and we present that factual narrative
as the background to this case for purposes of resolving the pending motion only.
The plaintiff, of course, bears the burden of proof on all elements of his remaining
claims.
1

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Hospital for follow-up care. Also as of this date, a document prepared at SCI-Camp
Hill indicated that around this time it was known that Peet suffered from “seizure
disorder.” (Id., Ex. 6.)
While at Holy Spirit, Peet suffered another seizure that lasted approximately
two minutes. (Id., Ex. 7.) Dr. Alan C. Teplis, who treated Peet, noted that Peet had
a “history of seizure disorder.” Peet stayed at Holy Spirit under the care of physicians
until March 11, 2008, when he was returned to SCI-Camp Hill. (Id., Ex. 8.) At this
time, Peet was medically evaluated by staff at the prison, and was admitted to the
infirmary and prescribed anti-seizure medication. (Id., Ex. 9.) The following day,
Peet was discharged and returned to his cell on the prison’s A-block. Despite having
Peet returned to his cell, Dr. Barry Beaven noted on Peet’s medical chart that he
“need[ed] follow-up for seizures,” and he requested Peet’s records from Holy Spirit.
(Id., Ex. 10.)
Peet was housed in cell B1-16, which was located on the bottom tier of Ablock. (Id., Ex. 11.) Peet was celled with Allen James Reeves, with Peet using the
bottom bunk and Mr. Reeves having the top. The cell measured roughly 6' 10" in
width by approximately 11' 5" in length. (Id., Ex. 13.) The cell also contained a
radiator that was situated adjacent to Peet’s bunk. Evidence in the record indicates
that the radiators in the cells at the prison would sometimes reach temperatures
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sufficient to allow inmates to boil water for coffee. (Doc. 92, Ex. 12, Dep. of Allen
Reeves, at 33.)
On March 16, 2008, nine days after Peet suffered his first seizure that required
his transfer to Holy Spirit Hospital, at approximately 7:15 p.m., Peet suffered another
seizure while in his cell. At that time, Reeves was in the cell with Peet, and during
his deposition described what he witnessed. Reeves attested that he was in his bunk
reading a book when the entire bunk frame began shaking. (Id., Ex. 12, Reeves Dep.
at 11-12.) Reeves hopped off the bed and saw that Peet’s “tongue was kind of
hanging out of his mouth a little bit and his eyes were rolling back into his head.” (Id.
at 12.) Reeves perceived that Peet required help, and thus got “on the door” and
began banging on the gate and yelling down the tier in an effort to alert unit staff that
there was an emergency that required immediate attention. (Id. at 12, 22-25.) During
this time, Reeves heard other inmates also shouting and yelling, even cynically
encouraging Reeves to simply “let [Peet] die.” (Id. at 23.) Reeves further testified
that despite his shouting and the noise that was building in the unit, it took between
five and ten minutes for corrections officers to reach the cell door. According to
Reeves, it took as much as an additional 7 minutes before medical personnel arrived
to render care.

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Sergeant Scott Seese and Corrections Officers David Pierre and Amanda
Steinour-Eger were on-duty on A-block from 2:00 p.m. to 10:00 p.m. on March 16,
2008. (Doc. 92, Ex. 14.) Sergeant Seese testified that he responded to Peet’s first
seizure, and that when he encountered Peet he was “laying there with eyes wide open
and kind of panting.” (Doc. 92, Ex. 15, Dep. of Scott Seese, at 26.) Thereafter, Nurse
Jane Ann Snyder responded and assessed Peet in the cell for between 5 and 10
minutes, before Peet was taken by wheelchair to the dispensary for further follow-up
and evaluation. (Doc. 92, Ex. 15, Seese Dep. at 27, 37; Ex. 17, Dep. of Jane Ann
Snyder, at 84-86.)
Approximately 30 minutes later, Nurse Marcie Boyer determined that Peet
could be returned to his cell via wheelchair. (Doc. 92, Ex. 18, Dep. of Marcie of
Boyer, at 83, 85-86; Ex. 12, Reeves Dep. at 13, 28, 36; Ex. 15, Seese Dep. at 47, 64.)
Reeves testified that he was surprised to see Peet return so soon after suffering a
seizure that had left him looking “delirious.” (Id., Ex. 12, Reeves Dep. at 13.)
Reeves expressed his own opinion that Peet might still require medical attention or
at least supervision, but Reeves’s concerns were not persuasive, and Peet was
returned to the cell. (Id. at 13, 28.) At this point, staff apparently departed.
Three hours later, at approximately 10:00 p.m., trouble struck when Peet
suffered his second seizure of the day, and his second seizure in three hours. (Doc.
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92, Ex. 20.) Reeves again felt the bunk shaking, and when he jumped down realized
that Peet was in the midst of another fit. (Doc. 92, Ex. 12, Reeves Dep. at 13, 31-32.)
During this seizure, however, Peet fell out of his own bunk and his head became
wedged in the space between the bottom of his bunk and the hot radiator. (Id., at 14,
32-33.) Reeves tried to render assistance to his cellmate, but was unable to move Peet
because of his size and weight and perhaps the way in which he was trapped. Reeves
testified that Peet was shaking and spitting up blood. After attempting to help Peet
for a minute, Reeves went to the door and began screaming and yelling to alert
correctional staff about the emergency taking place in the cell. Once again, other
inmates on the block created a loud commotion in response. (Id., at 14-15, 34, 61.)
Reeves testified that despite his yelling and the noise created by other inmates,
it again took another 5 to 10 minutes for staff to respond - despite the fact that Peet
had suffered a seizure just hours earlier. And the circumstances of this particular
seizure were tragic due to Peet having become trapped against a scalding radiator
until staff came to his assistance as many as 15 minutes after the seizure started. (Id.
at 15, 60, 64.) After correctional officers first arrived, Reeves testified that they took
no immediate action, allowing as many as 5 more minutes to elapse before they
opened the cell door to provide assistance. (Id. at 15.) Thus, according to Reeves,
Peet’s face remained pinned against the radiator for 15 minutes before it was removed
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and medical treatment could be provided. At this point, when the officers notified
medical that Peet needed attention, Reeves said Peet “wasn’t moving anymore.” (Id.)
As it happens, only minutes before Peet suffered his second seizure, Sergeant
Seese was making the final rounds of his shift before he finished work at 10:00 p.m.
During rounds at approximately 9:50 p.m., Seese stopped by Peet’s cell and told him
that he would notify the next shift about his medical condition and about the seizure
he had suffered earlier that day. At that time, Seese recalls that Peet told him he felt
“groggy”. (Doc. 92, Ex. 15, Seese Dep. at 28-29.) Seese then left to complete some
end-of-shift paperwork. Approximately two minutes later, Seese heard that “a ruckus
was going on back in the cellblock. Inmates were screaming, yelling, needed help.”
(Id.)
According to Seese, he responded to the commotion within a minute of hearing
yelling by other inmates and Reeves; his testimony is contradicted by that offered by
Reeves, who claims it took at least five minutes before anyone arrived at the cell
door. Seese states that he was the first staff member to arrive, and that he turned
lights on in the unit and notified medical staff that an emergency required their
assistance. (Id. at 42, 51-52, 81-82.) Seese stated that he could see Peet lying face
down in the cell, and that it appeared the inmate might be vomiting blood, and had
blood coming from his face. (Id.) Despite calling for medical attention and
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witnessing what appeared to be a seriously injured inmate, Seese did not enter the
cell, but waited outside the cell for medical personnel to arrive. (Id.)
Nurses Douglas McKinney and Lynn Joseph Overbaugh responded to the block
to provide emergency care. (Doc. 92, Ex. 16.) Nurse McKinney testified that when
they arrived at the cell, Peet remained in the midst of a seizure, was nonresponsive,
and was convulsing. (Doc. 92, Ex. 21, Dep. of Douglas McKinney, at 50-51.) After
medical entered the cell, Peet was removed from the radiator, and was dragged out
of the cell atop a sheet that had been tucked beneath him. (Id. at 35, 54-56, 58.)
Peet’s seizure continued for another 3 to 4 minutes, during which time Nurse
McKinney remained at a distance from Peet and phoned the dispensary for a gurney.
(Id. at 61-62.)
Peet’s injuries were determined to be quite serious, and he was accordingly
transported by ambulance to the Hershey Medical Center. During his transport, Peet
reportedly seized again, as notes indicate that at that time he had been in the throes
of a “tonic/colonic seizure.” (Doc. 92, Ex. 22.) One of the doctors at Hershey
Medical Center, Dr. Daniel K. French, wrote notes indicating that Peet presented with
severe burns sustained during the course of a seizure and contact with a radiator that
lasted upwards of 30 minutes; though it is unclear how the doctor would have been
capable of determining the duration of the contact. Dr. French noted that Peet had
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serious burns on the right side of his face, his left arm, his right eye, and had
additionally suffered a C2 fracture. (Id., at 1-2.) During this initial assessment, it was
determined that the severity of Peet’s burns necessitated a transfer to the Lehigh
Valley Hospital Burn Center for proper care. It appears that corrections staff initially
balked at Dr. French’s referral to the burn hospital, but relented after he insisted that
such acute treatment was imperative. (Id., at 2-3.) According to Peet, the delay in his
transfer subjected him to additional pain and suffering. (Doc. 90, at 10 n.5.)
Upon his admission at Lehigh Valley Hospital Burn Center, Peet was given last
rites, though he did recover following a lengthy period of treatment and
convalescence. Peet was treated at the facility for approximately six weeks, and was
discharged on April 29, 2008. (Doc. 92, Ex. 24.) During his stay at the burn center,
Peet had several surgeries performed on him to treat 2nd and 3rd degree burns,
including skin grafts, which resulted in permanent scarring and loss of vision in his
right eye. (Doc, 92, Ex. 25.)
Less than two years later, Peet initiated the instant action, alleging that the
defendants’ decision to allow him to be placed unsupervised in a cell with a scalding
radiator during a time when he had been suffering regular seizures constituted
deliberate indifference to his serious medical needs of which the defendants were, or
should have been aware; and that their response to his emergency situation following
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the second seizure also demonstrated deliberate indifference in the face of a desperate
situation that resulted in Peet sustaining ghastly injuries. Peet also alleges that the
defendants’ conduct was so egregious that it violated Peet’s substantive due process
rights, as he claims that the defendants are liable under the state created danger
doctrine because they created the harm, or enhanced a known risk of danger that
ultimately caused Peet’s burn injuries.
Following discovery, the defendants have moved for summary judgment on all
of Peet’s claims. The defendants contend that any serious risk of injury to Peet from
being placed in a cell with a hot radiator was not foreseeable, and thus argue that
based on the evidence in the record no jury could reasonably conclude that the
defendants were deliberately indifferent to Peet’s medical needs or that they
affirmatively increased Peet’s risk of suffering a foreseeable harm. The defendants
also argue that the facts of record, taken in the light most favorable to Peet, do not
support a claim that anyone responding to Peet’s emergent medical situation exhibited
deliberate indifference, or responded in a dilatory or otherwise inappropriate manner.
In large measure, the defendants not only defend their own conduct and the adequacy
of their training and response, but they also blame Peet for failing to file grievances
regarding his housing status if he actually believed it presented a danger in light of
his condition, and they endeavor to argue that the fact that Peet did not file grievances
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about this matter prior to being badly injured is somehow dispositive of their own
liability. Additionally, the defendants suggest that they must be protected from any
liability because the decision to return Peet to his cell was one made by a nurse who
is not even employed by the Department of Corrections. Finally, the defendants
argue that they are entitled to qualified immunity on all of Peet’s claims.
The parties have fully briefed the motion, which is now ripe for disposition.
For the reasons that follow, the motion will be denied with respect to Peet’s deliberate
indifference claims, because the record evidence is replete with disputes that are
relevant to a determination of whether the corrections officers on duty were
deliberately indifferent in their care for Peet, and particularly with respect to their
response to the incident. The record also contains evidence that, taken in the light
most favorable to Peet, could support a finding of liability against defendants
Palakovich and Zobitne. We also do not find that the defendants are entitled to
qualified immunity on these claims.
In contrast, we find that Peet’s claims for due process violations under the
state-created danger doctrine are not supported, as there is a lack of evidence that by
returning Peet to his cell at the direction of medical, the defendants were affirmatively
enhancing a foreseeable risk that Peet would suffer injury. Instead, the evidence
establishes a disputed factual issue relating to Peet’s claims that the defendants were
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deliberately indifferent and failed to act, bur does not show that they affirmatively
acted in a way that enhanced the risk to Peet.
III.

STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:
A party may move for summary judgment, identifying each
claim or defense – or the part of each claim or defense – on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. The court should
state on the record the reasons for granting or denying the
motion.

Fed. R. Civ. P. 56(a). For purposes of Rule 56, a fact is material if proof of its
existence of nonexistence might affect the outcome of the suit under the applicable
substantive law. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408,
412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). For an issue to be genuine, “all that is required is that sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve
the parties’ differing versions of the truth at trial.” Id. (quoting Anderson, 477 U.S.
at 248-49).
Accordingly, in support of a motion for summary judgment, the moving party
must show that if the evidence of record were reduced to admissible evidence in
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court, it would be insufficient to allow the non-moving party to carry its burden of
proof. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). Provided the moving party
has satisfied this burden, “its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380
(2007). Instead, if the moving party has carried its burden, the non-moving party
must then respond by identifying specific facts, supported by evidence, which show
a genuine issue for trial, and may not rely upon the allegations or denials of its
pleadings. See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007); see also Fed. R.
Civ. P. 56(c).
In adjudicating the motion, the court must view the evidence presented in the
light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all
reasonable inferences in the light most favorable to the non-moving party, Big Apple
BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Where the non-moving party’s evidence contradicts the movant’s, then the nonmovant’s must be taken as true. Id. Additionally, the court is not to decide whether
the evidence unquestionably favors one side or the other, or to make credibility
determinations, but instead must decide whether a fair-minded jury could return a
verdict for the plaintiff on the evidence presented. Id. at 252; see also Big Apple

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BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has
instructed that:
To raise a genuine issue of material fact . . . the opponent
need not match, item for item, each piece of evidence
proffered by the movant. In practical terms, if the
opponent has exceeded the “mere scintilla” threshold and
has offered a genuine issue of material fact, then the court
cannot credit the movant’s version of events against the
opponent, even if the quantity of the movant’s evidence far
outweighs that of its opponent. It thus remains the
province of the factfinder to ascertain the believability and
weight of the evidence.
Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d
464, 476 (3d Cir. 2011).
IV.

DISCUSSION
A.

Deliberate Indifference Under the Eighth Amendment

Peet’s claims that the defendants violated his rights under the Eighth
Amendment by housing him in unreasonably dangerous conditions in light of his
medical circumstances, and by responding in an unreasonably dilatory manner to his

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last seizure during which he suffered burning and disfiguring injury. These claims
form the heart of this lawsuit.
The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” With
respect to prisoner confinement, the Eighth Amendment obligates the government “to
provide medical care for those whom it is punishing by incarceration.” Estelle v.
Gamble, 429 U.S. 97, 103 (1976); see also Farmer v. Brennan, 511 U.S. 825, 832-33
(1994); Reynolds v. Wagner, 128 F.3d 166, 172-73 (3d Cir. 1997). “An inmate must
rely on prison authorities to treat his medical needs; if the authorities fail to do so,
those needs will not be met. In the worst cases, such a failure may actually produce
physical torture or a lingering death.” Estelle, 429 U.S. at 103 (quoting In re
Kemmler, 136 U.S. 436, 447 (1890)).
In Estelle, the United States Supreme Court held that prison officials violate
the Eighth Amendment’s proscription of cruel and unusual punishment when they
exhibit “deliberate indifference to serious medical needs of prisoners.” 429 U.S. at
104. The standard that Estelle established “requires [both that there be] deliberate
indifference on the part of the prison officials and [that] the prisoner’s medical needs
. . . be serious.” Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987) (quoting West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978)).
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Under this two-prong test, an inmate must first objectively establish a deprivation of
medical care, or the result of such deprivation, the result of which was sufficiently
serious to implicate a constitutional violation. Montgomery v. Pinchak, 294 F.3d
492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). An
inmate’s medical need is serious under this standard when it “has been diagnosed by
a physician as requiring treatment or . . . is so obvious that a lay person would easily
recognize the necessity for a doctor’s attention.”

Monmouth County Corr.

Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations and
internal quotations omitted). Secondly, the inmate-plaintiff must show that prison
officials subjectively knew of the deprivation and “disregard[ed] an excessive risk to
[the] inmate[’s] health or safety.” Natale v. Camden County Corr. Facility, 318 F.3d
575, 582 (3d Cir. 2003).
Thus, in the medical context, a constitutional violation under the Eighth
Amendment occurs only when state officials are deliberately indifferent to an
inmate’s serious medical needs. Estelle, 429 U.S. at 105. To establish a violation of
his constitutional right to adequate medical care in accordance with this standard,
Peet is thus required to point to evidence that demonstrates (1) a serious medical
need, and (2) acts or omissions by prison officials that indicate deliberate indifference
to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); see also Woloszyn
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v. County of Lawrence, 396 F.3d 314, 321 (3d Cir. 2005) (for a claim of deliberate
indifference against a prison official to survive, “the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”). The Third Circuit has found deliberate
indifference where a prison official: “(1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical
treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.” Rouse, 182 F.3d at 197. The Third
Circuit has also held that “[n]eedless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose, . . . violates the Eighth
Amendment.” Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003).
In summary, deliberate indifference to a serious medical need involves the
“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104. Such
indifference may be evidenced by an intentional refusal to provide care, delayed
provision of medical treatment for non-medical reasons, denial of prescribed medical
treatment, denial of reasonable requests for treatment that results in suffering or risk
of injury, Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct
in the face of resultant pain and risk of permanent injury,” White v. Napoleon, 897
F.2d 103, 109 (3d Cir. 1990). The Third Circuit has held that prison officials act with
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deliberate indifference when (1) reasonable requests for medical treatment are denied,
exposing the inmate to undue suffering or the threat of further injury; (2) necessary
medical treatment is delayed for non-medical reasons; (3) arbitrary or burdensome
procedures are erected to create treatment delays to suffering prisoners; and (4)
inmates are presented from receiving access and treatment from capable medical
professionals. See Lanzaro, 834 F.2d at 346-47.
At the same time, it is also clear that the mere misdiagnosis of a condition or
medical need, or negligent treatment provided for a condition, is not actionable as an
Eighth Amendment claim because medical malpractice is not a constitutional
violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Singletary v. Pa.
Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2002) (claims of medical malpractice,
absent evidence of a culpable state of mind, do not constitute deliberate indifference
under the Eighth Amendment). Instead, deliberate indifferent represents a much
higher standard, one that requires “obduracy and wantonness, which has been likened
to conduct that includes recklessness or a conscious disregard of a serious risk.”
Rouse, 182 F.3d at 197 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

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B.

There are Disputed Issues of Fact Regarding the Adequacy of the
Defendants’ Response to and Treatment of Peet’s Serious Medical
Needs

The defendants argue that the evidence compels summary judgment in favor
of the responding officers and Sergeant Seese, as they contend that there are no facts
that could show that they responded in a dilatory manner to Peet’s needs after
becoming aware of them, or that when they responded their treatment of Peet was
deliberately indifferent. The defendants also press the Court to grant summary
judgment in their favor because Peet had been treated by medical professionals at the
prison, and thus the defendants suggest that they should be immunized from any
responsibility for responding to or monitoring Peet’s condition since he had been
cleared by medical personnel to be returned to his cell. We disagree that the evidence
warrants summary judgment, as there are numerous facts which, if believed, could
support Peet’s claims against these defendants.
First, we reject the defendants apparent suggestion that it is somehow Peet’s
fault that he was housed in a cell with a burning radiator, despite having demonstrated
on multiple occasions that he was prone to seizures, and after he had in fact suffered
seizures that required outside hospitalization and a trip to prison infirmary – only
hours before his second seizure. The defendants make this argument in an effort to
show that nobody can predict when a seizure will occur and, therefore, they can have
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no liability for returning Peet to his cell in his known condition. The defendants thus
note that “Peet was able to have his medical situation evaluated by medical staff upon
his request or file a grievance regarding the radiator in his cell. Inmate Peet himself
knew that he was subject to seizures because he had taken medication for his seizure
disorder from 1980 through 2005.” (Doc. 83, at 11-12.) Additionally, the defendants
note that “Peet knew that there was a radiator in the cells where he was housed on
“A” and “B” blocks, but never told any guards that the radiator was too hot.” (Id.)
The defendants even suggest that Peet’s claims should somehow be found to be
unexhausted because he failed to file a grievance asking to be placed in a different
cell. The defendants cite to no authority that stands for the proposition that it is up
to an inmate to ensure his own safety while in custody, and that his failure to file an
anticipatory grievance or request a cell transfer to avoid future hazards somehow
forecloses his ability to enforce his rights under the Eighth Amendment. The law is
clear that it is defendants who have control over Peet, and, therefore, bear the
custodial obligation to ensure that his medical needs are not disregarded.2
This argument is further undermined by the fact that Peet suffered his
second seizure just hours after suffering a previous seizure that required a trip to
the prison infirmary for care, and shortly after Peet had been housed in an outside
medical facility where he was being treated for seizure disorder. The defendants’s
suggestion that it was Peet who had the responsibility for ensuring his own safety
and housing circumstances is not only legally untenable, but it suggests that the
defendants – who are constitutionally obliged to provide reasonably for the
2

22

Moreover, the record is replete with evidence showing that the defendants and
the DOC generally knew that responding to inmate medical needs was a priority, and
yet there is also evidence that this priority – which was in fact official DOC policy
– was not heeded. Indeed the DOC policy in effect at the time of the events in this
case provided that “Corrections officers and other staff shall be trained in accordance
with Department policy 5.1.1, Staff Development and Training, in the following
areas:

(1) response to health-related situations, within four minutes upon

notification/realization of the emergency.” (Doc. 92, Ex. 28, Emergency Response
Policy) (emphasis added.) Superintendent Palakovich acknowledged this policy, and
that it applied to all staff members who might come into contact with inmates,
including both corrections officers and medical staff. (Doc. 81, Ex. I, Palakovich
Dep. at 122-25.) Palakovich also testified that the reason for the policy was to ensure
that inmates were provided medical care and treatment as quickly as possible, and he
testified that emergency response times in excess of four minutes would constitute a
violation of DOC policy.
The defendants concede that there is a dispute in the record about how long it
took to respond to Inmate Reeve’s cries of alarm after Peet’s second seizure began
inmate’s safety and to provide medical care – bore no obligation for taking into
consideration Peet’s medical needs and conditions. We disagree with the
defendants’ suggestion in this regard, and the law does not support this assertion.
23

around 10:00 p.m., but argue that this evidence, even taken in the light most favorable
to Peet would not support a finding that any of the defendants was deliberately
indifferent to Peet’s circumstances. In support of this argument, the defendants urge
the Court to embrace the view that Reeve’s shouting and screaming for help for a
period of time of up to 10 minutes was insufficient to notify corrections staff that
there was an actual emergency that required attention. (Doc. 83, at 15.) As support
for this assertion, the defendants rely exclusively on testimony from Palakovich, who
also said that notification does not begin until an officer arrives at the scene of a bona
fide emergency and confirms that assistance is needed. The defendants provide no
legal support for the view that the Superintendent of a prison can, through his own
testimony, establish when an emergency has occurred, or when staff became notified
of that emergency. Moreover, the defendants’ assertions here are entirely divorced
from the undisputed facts that the defendants knew that just hours earlier, Inmate
Reeves had similarly alerted staff to Peet’s first seizure, and Sergeant Seese had
testified that he had just seen Peet, and realized that he might need follow-up. In the
context of this case, at minimum, there is a question of fact as to whether Reeves and
other inmates on the block who had again caused a crescendo of noise in response to
Peet’s second seizure put corrections staff on notice that something very serious was
underway.
24

Moreover, Peet has submitted an expert report by Daniel Vazquez, the former
Warden of San Quentin Prison and a correctional consultant with over 36 years of
experience in the field in support of his position that the officers on duty were slow
to respond in this case, and unreasonably so. (Doc. 92, Ex. 29, Vazquez Report.)
Vazquez opined that given the small size and configuration of A-block, officers in the
vicinity could have easily responded within four minutes. Mr. Vazquez stated as
follows in his report:

Measurements taken of the cell block showed that the
block was approximately 111 feet in length with cells
located on 2 separate levels or tiers on either side of the
block. There was also a common area that separated the
tiers and cells. The “bubble” or secure command center
was situated in the middle of “A” block and was located
approximately 49 feet from Mr. Peet’s cell. At the time of
Mr. Peet’s seizure and burn injuries, one officer was
assigned to the control bubble while the other two officers
remained posted and roving on the block. Given the short
distance between the command center and Mr. Peet’s cell,
it is my opinion that Sgt. Seese, the supervisor on duty and
the other two correctional officers on duty, Officer
Steinour-Eger and Officer Pierre, could and should have
easily been able to comply with the 4 minute emergency
response time limit. In fact, given the relatively small size
of “A” block, it is difficult to understand how and why
three correctional officers assigned to monitor and
supervise inmates took so long to get to Mr. Peet after
being alerted to his medical emergency by Mr. Reeves.
Under the circumstances, and given the short distances
involved, it is not unreasonable to expect and envision an
25

appropriate response time on the part of the officers on
duty that evening to be less than a minute, and perhaps
only a few seconds, depending on their proximity to Mr.
Peet’s cell at the time the cry for help was made.
In my opinion, a 5-10 minute delay by three officers in
responding to a medical emergency involving an inmate
located on a relatively small block and approximately 49
feet away from the command bubble is completely
unacceptable conduct under any objective standard
governing emergency response time by any properly
trained correctional staff. It is certainly a violation of DOC
policy governing emergency response time by correctional
staff.
(Id., at 11; Doc. 92, Ex. 13, Diagram of A-Block.) Even Superintendent Palakovich
agreed that officers should have been capable of responding within four minutes after
being notified of an emergency, and that a 5-10 minute delay was “unacceptable,”
and, had he known about the delayed response, he would have disciplined the officers
who were late to respond. (Doc. 92, Ex. 27, Palakovich Dep. at 130-32, 135-36, 14246.)
There is thus disputed evidence in the record as to whether Sergeant Seese and
the other corrections officers assigned to A-block were slow to respond to the
emergency taking place in Peet’s cell.
There is also disputed evidence about the adequacy of the officers’ response
once they reached the cell door. Peet’s cellmate, Allen Reeves, testified that after

26

arriving at the cell door, officers waited up to an additional five minutes before
entering the cell and rendering aid to Peet, who continued to have his face pinned
against a scalding radiator. Indeed, Sergeant Seese testified that when he arrived, he
believed he saw Peet vomiting blood and that he could see blood coming from Peet’s
face. We agree with the plaintiff’s expert, Daniel Vazquez, that if a factfinder found
these facts in Peet’s favor, it could support a finding of deliberate indifference:

Further, as Mr. Reeves testified was the case, if another 5
minutes passed before Sgt. Seese, Officer Steinour-Eger
and /or Officer Pierre even opened the cell door to render
aid to Mr. Peet, who at the time would have been helpless
and incapacitated because of the seizure and suffering
increasingly severe burn injuries to his face and body as a
result of being wedged or pinned against the scalding hot
radiator, it is my opinion that such a further delay in
accessing the cell and rendering aid to Mr. Peet would be
inexcusable and constitute outrageous conduct, particularly
given the ability of officers to communicate by hand held
radios and since cell gates would be controlled
electronically by the correctional staff from the “A” Block
Control Bubble. Upon witnessing Mr. Peet’s predicament
and need for immediate help, there was no reason for
officers on duty to delay another 5 minutes before
accessing the cell. According to Mr. Reeve’s testimony, as
much as 15 minutes may have passed between the time he
notified correctional officers on duty of Mr. Peet’s
emergency, and the time they actually opened and entered
his cell to pull him off a scalding hot radiator.

27

(Doc. 92, Ex. 29, Vazquez Rep. at 11-12.) Here, too, Palakovich agreed with
Vazquez that if as much time elapsed as Reeves claims, he would have considered the
delay in entering the cell and rendering aid to be “egregious” and to demonstrate a
lack of concern for the inmate’s health. (Doc. 92, Ex. 27, Palakovich Dep. at 135-36,
139-40.) Simply put, we believe that viewing the record in the light most favorable
to the plaintiff, a reasonable jury could conclude that Sergeant Seese, and Officers
Pierre and Steinour-Eger showed deliberate indifference to Peet’s serious and
manifest medical needs by delaying their response to an emergency that followed
closely on the heels of an earlier seizure and a similar commotion by inmates, and by
delaying their entry into the cell to provide aid even though Peet appeared to them to
be in extreme distress.3 The defendants’ motion for summary judgment with respect
The defendants also suggest that they are entitled to summary judgment
because Peet had been under the care of medical professionals at the prison, and,
therefore, the defendants had no duty to follow up on Peet’s condition, or take any
steps to reasonably ensure his care when he was returned to his cell. The law does
not support the defendants’ assertion in this regard, as the majority in Barkes
emphasized “that nonmedical prison officials may ‘be chargeable with the Eighth
Amendment scienter requirement of deliberate indifference’ when the possess
actual knowledge or have reason to believe that prison medical staff are
mistreating or failing to treat inmates’ serious medical conditions.” Barkes, 766
F.3d at 329 (quoting Spruill, 372 F.3d at 236). Furthermore, this Eighth
Amendment claim involves a discrete issue that was uniquely with the province of
responding correctional staff, and was not the subject of medical deference. The
question of whether staff acted with deliberate indifference when the left Peet’s
head and face wedged against a red-hot radiator for minutes resulting in pain,
scarring and blindness is not a matter of medical opinion, where staff needed to
3

28

to Sergeant Seese and Officers Pierre and Steinour-Eger on the plaintiff’s Eighth
Amendment claims will be denied.4

defer to a doctor’s advice.
The plaintiff has argued that there are additional reasons why summary
judgment is unwarranted, including that certain facts in the record suggest that
officers and medical staff had received no training in responding to emergencies
within the time limits prescribed by DOC policies, and because there were
inadequate policies in place to assist prison staff in communicating with one
another about inmate-related health issues. We find it unnecessary to summarize
the competing evidence in the record regarding these matters, which the plaintiff
has offered in opposition to the defendants’ motion for summary judgment,
because we find that the disputed facts in the record regarding the defendants’
responsiveness to Peet’s acute medical needs on its own makes summary judgment
unwarranted. The fact that we do not summarize and discuss these additional
matters in this memorandum does not preclude the plaintiff from presenting
evidence regarding these other potentially relevant issues at trial.
We do pause to note, however, that there is evidence to show not only that
the officers who were on duty on March 16, 2008, were entirely unaware that Peet
had suffered seizures, and there is evidence to show that where the medical staff
had important information about a particular inmate who suffered from an acute
condition, that information was not even communicated to corrections officers
responsible for monitoring the inmate. (Doc. 92, Ex. 15, Seese Dep. at 38, 79.)
Sergeant Seese testified that he had “no use” for that type of information. (Id., at
79.) Officer Pierre testified that he was unaware that Peet had been hospitalized
just over a week before March 16, and he was even unaware that Peet had suffered
a seizure earlier during his shift. (Doc. 92, Ex. 31, Pierre Dep. at 12, 92.) Only
Officer Steinour-Eger testified that she knew Peet was taking anti-seizure
medication because of some time he had spent in the infirmary, but her knowledge
apparently was merely fortuitous because she testified that the medical staff “don’t
let us know [the inmates’] medical condition . . . .” (Doc. 92, Ex. 32, SteinourEger Dep. at 21.) In addition to evidence showing the medical staff did not
communicate this type of information to corrections officers responsible for
checking on patients during their shifts, there is evidence showing that even the
medical staff on duty on March 16 were unaware of Peet’s condition, or that he
4

29

C.

Personal Involvement by Defendants Palakovich and Zobitne

Section 1983 provides a cause of action against “every person who,” under
color of state law, “subjects or causes to be subjected,” another person to a
deprivation of a federally protected right. 42 U.S.C. § 1983. It is and has long been
hornbook law that in order to be liable on a claim brought pursuant to 42 U.S.C. §
1983, a defendant must have had personal involvement in the alleged constitutional
violation. Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (“A defendant in
a civil rights action ‘must have personal involvement in the alleged wrongs to be
liable,’ and ‘cannot be held responsible for a constitutional violation which he or she
neither participated in nor approved.’”) (internal citations omitted.)

Personal

involvement may be proven not only by showing that the defendant had actual, direct
involvement in the violation, but also through proof of personal direction or of actual
knowledge and acquiescence in the violation. Evancho v. Fisher, 423 F.3d 347, 353
(3d Cir. 2005); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1987). To prove
personal involvement through acquiescence requires that a plaintiff demonstrate that
the defendant had contemporaneous knowledge of the alleged wrongdoing, and actual

had suffered a seizure earlier in the evening. (Doc. 92, Ex. 21, McKinney Dep. at
77, 83; Ex. 30, Overbaugh Dep. at 77-78.)
30

supervisory authority over the alleged violator. Robinson v. Pittsburgh, 120 F.3d
1286, 1293-94 (3d Cir. 1997).
Thus, it is well established that section 1983 liability cannot be predicated upon
the application of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662,676 (2009);
Bistrian v. Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012); Durmer v. O’Carroll, 991 F.2d
64, 69 n.14 (3d Cir. 1993). Therefore, in the absence of respondeat superior as a
basis for liability, a defendant may only be charged with violations arising from his
own involvement in the constitutional tort alleged. Barkes v. First Corr. Med., Inc.,
766 F.3d 307, 316 (3d Cir. 2014).
The defendants have seized upon this familiar, bedrock principle of § 1983
litigation, and have asserted that the Court must grant summary judgment in favor of
defendants Palakovich and Zobitne because they were not present at the time of
Peet’s injury, and were not personally involved in rendering aid, or in making the
decision to return Peet to his cell, or in the allegedly dilatory and indifferent response
to his urgent medical needs. Recent guidance from the Third Circuit Court of
Appeals in this area, however, teaches that the potential liability of these supervisory
defendants is not nearly a matter as simple as the defendants suggest. The Third
Circuit has reaffirmed that in cases involving allegations of deliberate indifference
to inmate medical need, supervisors may indeed face liability if through their own
31

failure to train and supervise subordinate staff who were involved in the injuries
suffered, provided that there is evidence to show that the supervisors themselves were
deliberately indifferent. We explain further below.
In Ashcroft v. Iqbal, the United States Supreme Court issued a decision that
caused many courts to reassess their jurisprudence regarding the availability of
supervisory liability in § 1983 litigation. 556 U.S. 662 (2009). For its part, the Third
Circuit for a time declined “to wade into the muddied waters of post-Iqbal
‘supervisory liability,’” Bistrian v. Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012), but in
2014 the Court found occasion to do so in Barkes v. First Correctional Medical, Inc.,
766 F.3d 307 (3d Cir. 2014). In a decision that thoroughly surveyed the treatment of
this issue by other circuits post-Iqbal, and carefully assessed the effect of Iqbal on the
Third Circuit’s own precedent in the area, the Court found that supervisory liability
survived Iqbal, and that the Court’s precedent in Sample v. Diecks, 885 F.2d 1099 (3d
Cir. 1989) setting forth the necessary elements that must be proven to establish
supervisory liability remained good law. However, the court’s decision was nuanced,
and focused specifically on claims of supervisory liability arising out of an instance
of alleged deliberate indifference to an inmate’s serious medical needs – precisely the
issue presented in the instant litigation.

32

This aspect of the Third Circuit’s decision in Barkes is important, as one of the
central holdings in that case is that “because the state of mind necessary to establish
a § 1983 or Bivens claim varies with the constitutional provision at issue, so too does
the state of mind necessary to trigger liability in a supervisory capacity.” 766 F.3d
at 318. Accordingly, blanket assertions that summary judgment is warranted in these
cases by mere reference to familiar cases holding that supervisors must have
“personal involvement” in the underlying tortious conduct alleged are insufficient,
because the kind of personal involvement necessary to support a supervisory liability
claim depends on the claim asserted. Id. at 319 (“the mental state required to impose
supervisory liability will vary with the underlying tort.”). Agreeing with several
courts that had reached that conclusion, the Third Circuit stated as follows, speaking
specifically about the legal standard applied in Eighth Amendment claims of
deliberate indifference:
We do not read Iqbal to have abolished supervisory
liability in its entirety. Rather, we agree with those courts
that have held that, under Iqbal, the level of intent
necessary to establish supervisory liability will vary with
the underlying constitutional tort alleged. In this case, the
underlying tort is the denial of adequate medical care in
violation of the Eight Amendment’s prohibition on cruel
and unusual punishment, and the accompanying mental
state is subjective deliberate indifference.

33

Id.5 Indeed, the court of appeals expressly found that supervisory liability in the
context of a deliberate indifference claim flows directly from the nature of the tort,
and is consonant with the teaching of Iqbal:

This subtle but key point from Barkes is critical in § 1983 litigation,
because different constitutional torts have different mental states that are required
in order for liability to be imposed. For example, the Third Circuit found that in
cases alleging excessive force by an officer, the law requires a plaintiff to show
deliberate action on the part of a defendant. Id. at 321. For that reason, it is not
enough to assert supervisory liability against an official based an omission or a
failure to act, since deliberate action is a critical element of th claim. Id.
Likewise, in Iqbal, the Supreme Court noted that “purpose rather than knowledge
is required to impose Bivens liability on the subordinate for unconstitutional
discrimination; the same holds true for an official charged with violations arising
from his or her supervisory responsibilities.” 556 U.S. at 678. The Third Circuit
has read this language to mean that “the [Supreme] Court expressly tied the level
of intent necessary for superintendent liability to the underlying constitutional
tort.” Barkes, 766 F.3d at 318. As the Barkes majority noted, other circuits have
carefully drawn distinctions between the mental state required for particular torts
when determining whether supervisory liability will lie. For example, in T.E. v.
Grindle, the Seventh Circuit recognized that Iqbal had abrogated its precedent that
permitted plaintiffs to recover from supervisors who were deliberately indifferent
toward a subordinate’s purposeful discrimination, “because in a discrimination
claim Iqbal requires that ‘a plaintiff must show that the supervisor possessed . . .
discriminatory intent.” Barkes, 766 F.3d at 319 (quoting T.E. v. Grindle, 599 F.3d
583, 585-87 (7th Cir. 2010)). In contrast, the Seventh Circuit found that a
plaintiff’s substantive due process claim could continue against a supervisor, for
which the court held that “[w]hen a state actor’s deliberate indifference deprives
someone of his or her protected liberty interest . . ., that actor violates the
Constitution, regardless of whether the actor is a supervisor or subordinate.” Id.
Accordingly, as the Third Circuit summed up its overview of the circuit decisions
post-Iqbal, “the mental state necessary for supervisory liability tracks with the
mental state required for the underlying tort.” Id. at 319.
5

34

Iqbal held that state officials are liable only for their own
unconstitutional actions. The essence of the type of claim
we approved in Sample is that a state official, by virtue of
his or her own deliberate indifference to known
deficiencies in a government policy or procedure, has
allowed to develop an environment in which there is an
unreasonable risk that a constitutional injury will occur,
and that such an injury does occur. Liability in such a
situation is, as Iqbal requires, imposed not vicariously but
based on the supervisor’s own misconduct, because to
exhibit deliberate indifference to such a situation is a
culpable mental state under the Eighth Amendment.
Id. at 320 (original emphasis); see also Starrr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
2011) (“[W]hen a supervisor is found liable based on deliberate indifference, the
supervisor is being held liable for his or her own culpable action or inaction, not held
vicariously liable for the culpable action or inaction of his or her subordinates.”).6
In its analysis, the court reaffirmed its prior holding in Sample in which the
court enunciated a four-part test to be applied when determining whether an official
may be held liable on a claim that he or she failed to supervise, train or supervise
subordinates. The court first found that supervision is defined broadly in this context
to “entail[], among other things, training, defining expected performance by

The Third Circuit underscored its point that supervisory liability claims
must be considered based upon the nature of the constitutional tort alleged when it
cautioned that it would “leave for another day the question of whether an under
what circumstances a claim for supervisory liability derived from a violation of a
different constitutional provision remains valid.” Id. at 320.
6

35

promulgating rules or otherwise, monitoring adherence to performance standard, and
responding to unacceptable performance whether through individualized discipline
or further rulemaking.” 885 F.2d 1099, 1116 (3d Cir. 1989). With supervision thus
being defined broadly, the Court’s four-part test provides that a plaintiff must
identify a supervisory policy or practice that the supervisor
failed to employ, and then prove that: (1) the policy or
procedures in effect at the time of the alleged injury created
an unreasonable risk of a constitutional violation; (2) the
defendant-official was aware that the policy created an
unreasonable risk; (3) the defendant was indifferent to that
risk; and (4) the constitutional injury was caused by the
failure to implement the supervisory practice or procedure.
Id. at 1118; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 135 (3d Cir. 2001)
(“Sample’s four-part test provides the analytical structure . . ., it being simply the
deliberate indifference test applied to the specific situation of a policymaker.”). In
Barkes, the court confirmed that this test remains the appropriate analytical
framework for these claims following Iqbal. 766 F.3d at 330.
Mindful of the Third Circuit’s recent guidance in this field of supervisory
liability claims for deliberate indifference to an inmate’s serious medical needs, we
turn to the defendants’ argument that defendants Palakovich and Zobitne are entitled
to summary judgment in their favor because they assertedly had no personal
involvement in the alleged constitutional violations.

36

The defendants argue that Palakovich had absolutely no personal involvement
in the incidents that gave rise to this lawsuit, but was instead the Superintendent of
SCI-Camp Hill for two and a half years, from December 2007 until April 2010, when
he retired. Despite being the Superintendent, the defendants suggest that Palakovich
had little role in many aspects of SCI-Camp Hill’s operations, and no involvement in
any matter relevant to Peet’s claims. In support of these assertions regarding
Palakovich’s asserted lack of personal involvement, the defendants rely exclusively
on Palakovich’s own deposition testimony. (Doc, 81, Ex. I.)
During his tenure, Palakovich maintained responsibility for inmate grievances,
public information, litigation coordination, and other administrative tasks related to
the operation of the prison. (Id., at 32, 33.) The defendants place great reliance on
the apparently undisputed fact that there is no evidence to show that Palakovich had
any interaction with Peet aside from learning about the incident wherein Peet suffered
burns. (Id., at 110.) Palakovich also testified that he processed an extraordinary
occurrence report relating to the matter, but otherwise had no direct involvement in
or connection to the incident. (Id., at 82.) Then the defendants also argue that despite
being the Superintendent with overall responsibility for the prison, Palakovich
nonetheless had no authority to dictate medical treatment of inmates, and that any
decision about what to do with an inmate with seizure disorder is a matter committed
37

entirely to the discretion of medical personnel. (Id., at 64, 69.) Likewise, the
defendants note evidence that Palakovich was not personally involved in decisions
about whether inmates needed outside medical care, or even in the day-to-day celling
decisions for particular inmates. (Id., at 104-05.)
The defendants acknowledge that Palakovich, as Superintendent, had a role to
play in terms of disciplining staff, but argue he had no “direct responsibility” for
training any of the corrections officers or medical staff. (Id., at 45, 88, 154.) The
defendants further minimize Palakovich’s scope of authority by noting that prison
policies and procedures are promulgated by the DOC Central Office, and not by
officials at SCI-Camp Hill. (Id., at 38-39.) The defendants maintain that Palakovich
was not involved in creating these procedures, (id., at 41), or in creating any of the
ACA Accreditation Standards that serve as a model used by the DOC, (id., at 35).
Based upon these assertions alone, the defendants insist that “Peet cannot point to any
action by Palakovich to show he had any involvement in the staff’s response to his
seizure.” (Doc. 83, at 7.)
As an initial matter, the deposition testimony cited is a mere fraction of all that
Palakovich testified to, and other testimony makes clear that while Palakovich may
not have had the authority to dictate a medical course of treatment, he acknowledged
that “their operations, their supervision, their conduct within the prison was governed
38

by [him], ultimately, as the superintendent of the facility.” (Id., at 64.) More
importantly, the defendants’ exclusive focus on Palakovich’s asserted inability to
make medical decisions and his lack of direct interaction with Peet misses the salient
focus that the Third Circuit highlighted in Barkes, which is on whether Palakovich’s
own conduct in his role as a supervisor was itself deliberately indifferent with respect
to policies and procedures within the prison.
As noted, in a case involving claims of deliberate indifference, the plaintiff
must show that (1) the policy or procedures in effect at the time of the alleged injury
created an unreasonable risk of a constitutional violation; (2) the defendant-official
was aware that the policy created an unreasonable risk; (3) the defendant was
indifferent to that risk; and (4) the constitutional injury was caused by the failure to
implement the supervisory practice or procedure. Sample, 885 F3d. at 1118. The
plaintiff has highlighted numerous places in the record that could support his claim
that Palakovich was deliberately indifferent by failing to ensure that correctional
officers within the chain of command at the prison received proper training and
instruction, particularly with respect to response times in emergency situations, and
the provision of emergency medical treatment to inmates. (Doc. 81, Ex. I, at 44.) In
particular, Peet notes that official policy dictated that emergency response times were
to be within four minutes, something that Palakovich himself acknowledged was
39

expected of staff. Nevertheless, there is evidence in the record to show that SCICamp Hill officers on duty on the day of the alleged incident had never been trained
in effective response times, and indeed were entirely unaware of the 4-minute
maximum response time expected until they learned of it during discovery in this
case. (Doc. 92, Ex. 31, Pierre Dep., at 5, 9, 51.) Likewise, DOC nurses who were
also under Palakovich’s supervision and ultimate authority were also never trained
regarding expected response times. (Doc. 92, Ex. 21, McKinney Dep. at 28-29.)
Moreover, other evidence also indicates that Palakovich would have disciplined
subordinate staff if he were to have learned that they failed to respond timely to an
emergent situation involving an inmate because such a failure would be tantamount
to exhibiting “a disregard for those medical needs” and a “lack of concern” for the
inmate’s well-being. (Doc. 81, Ex. I, Palakovich Dep. at 135-136, 147.)
Thus the evidence reveals a potentially stark contrast between what defendant
Palakovich describes as his understanding of the medical emergency response policy,
a policy he was charged with implementing, and the general lack of awareness of that
policy among those who were charged with Peet’s safety during the critical moments
when he lay disabled with his face wedged against a scalding radiator. This gulf
could have been bridged by essential training, understanding, awareness and
communication, but the factual record is largely silent on this score, leaving the gulf
40

between the superintendent’s expectations, and staff awareness of those expectations
unbridged.
Given these unresolved factual questions, we believe that summary judgment
would not be appropriate on a supervisory failure-to-train claim. We recognize that
“[e]stablishing . . . liability on a failure to train claim under § 1983 is difficult.”
Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).7 “Generally, deficient
training can only amount to the requisite deliberate indifference ‘where the failure to
train has caused a pattern of violations.’ Berg v. County of Allegheny, 219 F.3d 261,
276 (3d Cir.2000). However, an exception exists and a ‘failure to train’ . . . claim
may proceed absent a pattern of violations only where (1) ‘a violation of federal
rights may be a highly predictable consequence of a failure to equip law enforcement
officers with specific tools [or skills] to handle recurrent situations,’ and (2) the
likelihood of recurrence and predictability of the violation of a citizen's rights ‘could
justify a finding that [the] policymakers' decision not to train an officer reflected
“deliberate indifference” to the obvious consequence of the policymakers'
choice—namely, a violation of a specific constitutional or statutory right.’ Kline, 255
Fed.Appx. at 629 (quoting Board of County Commissioners of Bryan County v.

These cases deal with failure-to-train claims in a Monell setting but are, in
our view, equally applicable to supervisory failure-to-train liability.
7

41

Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 1391 137 L.Ed.2d 626, 642 (1997)).”
White v. Brommer, 747 F. Supp. 2d 447, 463 (E.D. Pa. 2010).
While this is undeniably an exacting standard of proof, here the evidence, albeit
disputed, when viewed in a light most favorable to the plaintiff would permit a
finding of supervisory failure-to-train liability. The nature of this policy, which deals
with emergency medical responses, underscores the gravity of adequate staff
knowledge and training. The consequences which can be expected flow from a
failure to train on the proper response to a medical emergency are also highly
predictable, and include death, severe injury, maiming, scarring and intense pain and
suffering, matters which can rise to the level of constitutional violations. Defendant
Palakovich’s assertion that he knew of the policy and would have punished those who
failed to comply with the policy affirm his subjective understanding of the importance
of compliance with these procedures. Thus, we have a situation where it can arguably
be asserted that “(1) ‘a violation of federal rights may be a highly predictable
consequence of a failure to equip law enforcement officers with specific tools [or
skills] to handle recurrent situations,’ and (2) the likelihood of recurrence and
predictability of the violation of a citizen's rights ‘could justify a finding that [the]
policymakers' decision not to train an officer reflected “deliberate indifference” to the
obvious consequence of the policymakers' choice—namely, a violation of a specific
42

constitutional or statutory right.’ ” White v. Brommer, 747 F. Supp. 2d 447, 463
(E.D. Pa. 2010). Yet, the evidence, and particularly the staff assertions that they were
totally unaware of a policy that called for a four minute response to a medical
emergency in which it is alleged that an inmate was being blinded, scarred and burned
by a radiator for an extended period of time, permits an inference that there was a
failure-to-train in this case that rose to a matter of potentially constitutional
dimensions.
Thus, while it may be true that Palakovich did not personally make decisions
about where to house Peet, or about when he should be released from medical and
returned to his cell, or even about when and how to train officers, there is evidence
showing that (1) he ultimately was responsible for the prison’s operation, (2) he was
responsible for ensuring that corrections staff were trained effectively to address
emergency situations appropriately, and (3) staff was untrained in responding to
emergencies, even though Palakovich apparently had an expectation that staff would
respond effectively to inmate emergencies and could face discipline if they did not
do so in accordance with DOC policy.
The defendants’ suggestion that medical staff are entirely independent of
Palakovich, or somehow that they and their decisions fell outside the ambit of his
authority, is not legally tenable, and does not provide a basis for summary judgment
43

in light of Barkes. The Third Circuit was confronted by very similar assertions in
Barkes, and rejected them decisively. In that case, the defendants had argued that
they were entitled to qualified immunity because “it was not clearly established that
they, as non-medical prison administrators, had a constitutional supervisory duty over
the medical staff.” 766 F.3d at 327. The defendants had relied upon Spruill, supra,
for this proposition, but the Third Circuit highlighted other language in that decision
that substantially narrowed its scope depending on the facts alleged, noting that
corrections staff are only insulated from liability if there is no other countervailing
evidence or reason to believe that there were inadequacies in medical care. The court
specifically observed that dismissal of claims against non-medical personnel was
appropriate in Spruill because “the plaintiff had failed to plead facts suggesting that
the official was aware of the alleged inadequacies in medical care, not because prison
administrators are categorically exempt from a supervisory role over medical
personnel.” Id. (citing Spruill v. Gillis, 372 F.3d 218, 236-37 & n.12). In Barkes, the
court found that there was a dispute in the record over whether prison administrators
failed effectively to supervise the prison’s contract medical providers, who
themselves were alleged to have had insufficient suicide-prevention policies, and
whether those combined shortcomings created an unreasonable risk of Eighth
Amendment violations. Id. The record in the instant case is similarly in conflict, and
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the plaintiff has done an adequate job of identifying facts that could show that SCICamp Hill administrators, including Superintendent Palakovich, were indifferent to
their role as supervisors overseeing both corrections staff and medical staff at the
prison, and that this indifference – in the face of Peet’s serious and documented
medical needs – arose to the level of constitutional misconduct.
The result is the same with Zobitne. Zobitne was the Unit Manager of A-block
in March 2008. As part of her duties, Zobitne was in charge of and supervised
housing units, and in this role was responsible for overseeing on-duty officers,
sergeants, and inmates within the unit. (Doc. 92, Ex. 34, Deposition of Renee
Zobitne, at 7.) The plaintiff has pointed to evidence to show that in spite of being
responsible over officers and inmates in the unit, Zobitne knew almost nothing about
Peet, even after he had been taken out of the prison for acute medical treatment, and
after he returned to prison. Indeed, Ms. Zobitne testified that she “didn’t know any
of [Peet’s] medical issues . . . I just knew he walked a little funny on the side of his
foot . . . He was fairly recognizable on the block . . . That’s pretty much all I knew of
him.” (Id., at 16.) Ms. Zobitne acknowledged that she did not know that Peet had
been taken to Holy Spirit on March 7, 2008, or that he had been taken to the
dispensary for observation in the evening on March 16, 2008, the same night he
suffered his fateful injury. (Id.) It is true that Zobtine was not working during the
45

shift that Peet suffered his second seizure, and the defendants place great weight on
this point in their argument that she had no personal involvement in the incident. But
Peet is arguing not that Zobitne was involved in the actual response to his emergency,
but instead that she was deliberately ignorant of the medical conditions and needs of
the inmates housed in her unit, over which she had responsibility.
Peet again relies on the expert report of Daniel Vazquez, the former Warden
of San Quentin Prison, in support of his claims that Zobitne’s lack of knowledge
regarding the inmates on her unit, and her failure to obtain medical information about
those inmates, particularly acute cases like Peet, could be tantamount to deliberate
indifference:
In my opinion, as part of her unit management
responsibilities, Ms. Zobitne should have had much more
knowledge of any inmate with medical needs or existing
conditions necessitating specialized supervision and
coordinated the communication of such information
between the medical and correctional staff. It seems
incomprehensible that the unit manager of “A” Block
would be so uninformed about major events occurring on
her block and have no memory or information about an
inmate taken to an outside hospital after having suffered a
seizure or that she would receive information regarding
Mr. Peet’s seizure and burn injuries as a result of “talk on
the block.” In Mr. Peet’s case, it was her responsibility and
duty as a supervisor and manager of inmates to know that
Mr. Peet had been diagnosed with seizure disorder and that
he had been hospitalized at an outside facility on March 7,
2008 and to coordinate and communicate an appropriate
46

plan for heightened supervision. It was also Ms. Zobitne’s
job to manage the officers assigned to the block in such a
manner that accounted for inmate safety. Had she been
knowledgeable about Mr. Peet’s prior medical history and
seizure disorder, Ms. Zobitne could have re-assigned Mr.
Peet to a cell closer to the command bubble, or to a lower
bunk in a housing unit that did not have a steam generated
radiator heating.
(Doc. 92, Ex. 29, Vazquez Rep. at 24.) Indeed, the defendants do acknowledge that
Ms. Zobitne was empowered to recommend a change to an inmate’s housing
assignment if his medical condition suggested it was either necessary or beneficial,
but they maintain that she cannot be liable in this case because she remained ignorant
of Peet’s conditions. This is how the defendants insist that Ms. Zobitne was not
personally involved: because she remained unaware of Peet’s condition – even
though it was serious and known – and because she, therefore, took no action of any
kind, she could have no personal involvement in this incident. As discussed above,
after Barkes, we do not believe that the defendants have demonstrated that Ms.
Zobitne had no personal involvement; instead, they have highlighted evidence that
could show she was deliberately indifferent to Peet’s circumstances and the danger
that was presented by his housing circumstances coupled with his unstable medical
circumstances. That does not immunize Zobitne from the claims in this case.

47

Although the defendants place great weight on their contention that the
corrections officers and non-medical staff do not have access to inmate medical
information, this contention seems both inaccurate and also problematic, both from
the perspective of inmate well-being and this litigation. Zobitne herself testified that
Unit Managers can access inmate medical charts and other information, and can pull
medical status summaries in order to assist in making appropriate housing
determinations for inmates. Thus, the defendants argue that Ms. Zobitne should be
dismissed because she did nothing to learn anything about Peet’s medical conditions,
which were serious enough to require a stay at an outside hospital and to require
follow up on a known seizure disorder, and because she did nothing with respect to
altering his housing. This lack of inquiry, knowledge or action on the part of a unit
manager does not, on this record, warrant summary judgment for lack of personal
involvement, and it may be probative of deliberate indifference on Zobitne’s part.
Furthermore, there is also evidence that could show that Zobitne believed that
staff would have been unable to monitor Peet’s condition more closely in any event,
because the unit had more than 200 inmates, and rounds on the unit were conducted
once every 30 minutes, since it would have been “impractical” to do anything more.
(Id., at 53.) Once again, Vazquez offered his opinion that concerns about potential

48

staffing shortages should not be allowed to trump the constitutional requirement that
inmate medical needs be taken into account:
In light of her supervisory role over the officers assigned
to “A” block, it is also my opinion that she had the
authority to require correctional officers to provide
specialized or more frequent level of supervision of Mr.
Peet to ensure his safety, but simply refused to exercise it
because of perceived staffing issues.
(Doc. 92, Ex. 29, Vazquez Rep. at 24.)
Considering the evidence that Peet’s condition was serious and that Zobitne
could have but did not take any steps to learn about Peet’s medical circumstances
despite those circumstances having only recently required his outside hospitalization,
and the evidence that Zobitne could have but declined to learn about Peet’s condition
or to use his medical information in order to arrange for arguably more appropriate
housing or to provide greater supervision of this inmate, we do not find that summary
judgment is warranted simply because Zobitne did not have a direct hand in
responding to or caring for Peet after he suffered his second seizure. We read Barkes
to require that summary judgment be denied based on the evidence and expert
opinions discussed above, since that evidence is probative as to whether Zobitne’s
ignorance of Peet’s condition, and her failure to do anything to follow up on and even
learn about his condition, was deliberately indifferent.

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In sum, there is disputed evidence in the record that makes summary judgment
inappropriate for either defendants Palakovich or Zobitne, and the motion for
summary judgment on Peet’s Eighth Amendment claims will be denied with respect
to these defendants as well.
D.

Qualified Immunity

The defendants argue that even if they are not entitled to summary judgment
on the merits of Peet’s Eighth Amendment claims, they should nevertheless be
granted qualified immunity from the claims. We disagree that qualified immunity is
available on the current record.
The doctrine of qualified immunity shields government officials “from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects public
officials “from undue interference with their duties and from potentially disabling
threats of liability.” Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005).
In accordance with this doctrine, government officials will be immune from suit in
their individual capacities unless, “taken in the light most favorable to the party
asserting the injury, . . . the facts alleged show the officer’s conduct violated a
constitutional right” and “the right was clearly established” at the time of the
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objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may
exercise their discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in consideration of the circumstances
presented by the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 129 S.
Ct. 808, 818 (2009).
“The relevant dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. This inquiry
“must be undertaken in light of the specific context of the case.” Id. at 201.
Accordingly, “to decide whether a right was clearly established, a court must consider
the state of the existing law at the time of the alleged violation and the circumstances
confronting the officer to determine whether a reasonable state actor could have
believed his conduct was lawful.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253
(3d Cir. 2010).
The defendants’ argument that they are entitled to qualified immunity is little
more than a rehash of their arguments on the substantive merits of Peet’s claims.
There is no question that at the time of the injuries in this case, and the events that
form the basis of the plaintiff’s claims, it was well established that prison officials
were obligated to provide inmates in their care and custody with appropriate medical
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care, and to avoid being deliberately indifferent to their serious medical needs.
Estelle v. Gamble, 429 U.S. 97 (1976).

Likewise, it was established that a

correctional officer who delays providing medical care may violate the Eighth
Amendment. Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). The Third Circuit last
year emphasized that prison officials may be charged with deliberate indifference if
they have actual knowledge or have reason to believe that prison medical staff are
failing to treat inmates’ serious medical conditions. Barkes, 766 F.3d at 329; see also
id. at 328 (noting that prison administrators are “under an obligation to take
reasonable measures to guarantee the safety of inmates themselves.”) (quoting
Hudson v. v. Palmer, 468 U.S. 517, 526 (1984)).
The defendants do not dispute that the law in this field was well-established in
March 2008; they simply argue that there is no evidence to show that they violated
that well-established right. We have found that there exist disputed issues of fact on
precisely that question, and summary judgment is thus not warranted on grounds that
the defendants are entitled to qualified immunity on Peet’s Eighth Amendment
claims.
E.

State-Created Danger

Peet also argues that the same conduct of the defendants that forms the basis
for his deliberate indifference claims also supports a claim for a substantive due
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process violations under a “state created danger” theory of liability. Although this
is a somewhat close issue, we do not find that the evidence supports the plaintiff’s
claims here.
“A state actor generally owes no duty to protect an individual against violence
from a third person.” Bright v. Westmoreland County, 380 F.3d 729, 736 (3d Cir.
2004). Accordingly, although the Due Process Clause of the Fourteenth Amendment
forbids states from depriving “any person of life, liberty, or property, without due
process of law,” U.S. Const. amend. XIV, § 1, it imposes no converse obligation that
the government aid or protect its citizens. Jiminez v. All Am. Rathskeller, Inc., 503
F.3d 247, 255 (3d Cir. 2007) (citing DeShaney v. Winnebago County Dep’t of Soc.
Servs., 489 U.S. 189, 196 (1989)). As the Supreme Court explained in DeShaney, the
protections afforded by the Fourteenth Amendment “cannot fairly be extended to
impose an affirmative obligation on the State to ensure that those interests do not
come to harm through other means,” in particular through the actions of private
parties. DeShaney, 489 U.S. at 195.
However, although a state “does not become the permanent guarantor of an
individual’s safety by having once offered him shelter,” id. at 189, the state may
violate the constitution where its actions are “affirmatively employed in a manner that
injures a citizen or renders him ‘more vulnerable to injury from another source than
53

he or she would have been in the absence of state intervention.’” Bright, 443 F.3d at
281 (citing Schieber v. City of Phila., 320 F.3d 409, 416 (3d Cir. 2003)). This is what
is commonly referred to as the “state-created danger” doctrine, which provides that
although a state has no constitutional obligation to help its citizens, it may be liable
for its “affirmative acts which work to plaintiffs’ detriment in terms of exposure to
danger.” D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d
Cir. 1992).
In order to make out a claim under the state created danger doctrine, a plaintiff
must demonstrate the following four elements: (1) the harm ultimately caused was
foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that
shocks the conscience; (3) a relationship between the state and the plaintiff existed
such that “the plaintiff was a foreseeable victim of the defendant’s acts,” or a
“member of a discrete class of persons subjected to the potential harm brought about
by the state’s actions,” as opposed to a member of the public in general; and (4) a
state actor affirmatively used his or her authority in a way that created a danger to the
citizen or that rendered the citizen more vulnerable to danger than had the state not
acted at all. Bright, 443 F.3d at 281. This final requirement is critical in cases
involving claims based upon a state created danger theory: “[l]iability . . . [must be]
predicated upon the states’ affirmative acts which work to the plaintiff’s detriment
54

in terms of exposure to danger. It is the misuse of state authority, rather than a
failure to use it, that can violate the Due Process Clause.” Barkes, 766 F.3d at 321
(quoting Phillips v. Cnty of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (original
emphasis).
Upon consideration of the five remaining defendants and the scope of their
alleged involvement in the incidents that led to Peet’s severe burn injuries; and
mindful of the four-part test that must be satisfied for a claim to lie, we find that
Peet’s claims for substantive due process violations fail. These particular claims are
predicated entirely on the failure of the defendants to supervise Peet adequately in
light of his serious medical condition at the time, as well as the defendants decision
to return Peet to his cell after he was released from the dispensary following the first
seizure he suffered on March 16.

This fact substantially undermines Peet’s

contention that the specific injuries in this case were fairly foreseeable. That decision
to return Peet to his cell was apparently made simply because medical personnel, who
are not parties in this case, determined that Peet was in sufficient shape to be returned
to his cell where, it must be noted, he had never suffered injuries like he did following
his second seizure on March 16. Although we find that there are disputed issues of
fact with respect to whether the defendants were deliberately indifferent to Peet’s
serious medical needs, and whether the responded appropriately to those needs and
55

Peet’s medical emergency, we do not find that there is sufficient evidence that the
remaining defendants undertook affirmative acts that placed Peet at enhanced risk of
suffering the injuries that he later suffered, and that those injuries were foreseeable
and fairly direct. The absence of sufficient evidence to show affirmative conduct on
the part of the remaining defendants effectively forecloses Peet’s claims here.
V.

CONCLUSION
In the end, this is an action involving a tragic set of circumstances involving

an inmate with a cascading array of health problems, chief among them a seizure
disorder that in March 2008 was unstable. Those circumstances led to the plaintiff
suffering an extraordinary set of injuries, and lifelong disfigurement, and led to the
filing of this litigation. Following discovery, we find that the evidence that has been
adduced could support the plaintiff’s claims that the remaining defendants were
deliberately indifferent to his serious medical needs on March 16, 2008, and that their
response to his serious medical condition was dilatory and inadequate. That same
evidence, however, falls short of demonstrating that the same defendants
affirmatively put in motion the events that ultimately resulted in the plaintiff’s second
seizure, and the injuries that sadly ensued, or that they took affirmative action to
increase the risk of its occurrence. Accordingly, the defendants’ motion for summary
judgment will be denied with respect to the plaintiff’s Eighth Amendment claims, and
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granted with respect to his claims that the defendants violated his substantive due
process.
An appropriate order consistent with this memorandum shall issue separately.

57