Ponzini et al v. Monroe County et al

Filing 64

MEMORANDUM AND OPINION - For the reasons set forth in this Memorandum Opinion, Defendants' Motions to Dismiss will be Denied, but Defendant Jesse Cleare's Motion for Judgment on the Pleadings will be Granted. Aseparate Order will follow.Signed by Honorable Robert D. Mariani on 9/19/12. (jfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER PONZINI, et al.
Plaintiffs

3:11·cy·0413

Y.

(JUDGE MARIANI)
MONROE COUNTY, et al.
Defendants
MEMORANDUM OPINION
Presently before the Court are: (1) a Motion to Dismiss by Defendant Alex T.
Thomas ('Thomas") (Doc. 47); (2) a Motion to Dismiss by Defendants PrimeCare Medical,
Inc., Dr. Deborah Wilson, Christina Rowe, Wendy Johnson, Paul S. James, Grace Ramos,
and Patrica Bauer (collectively, "Medical Defendants") (Doc. 50); and (3) and a Motion for
Judgment on the Pleadings by Defendant Jesse Cleare (Doc. 59). For the reasons set
forth below, both Motions to Dismiss (Docs. 47 and 50) will be denied, but Jesse Cleare's
Motion for Judgment on the Pleadings (Doc. 59) will be granted.

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JURISDICTION

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This matter is properly before the Court based upon federal question jurisdiction

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pursuant to 28 U.S.C. § 1331, while the state law claims are properly before the Court
pursuant to its supplemental jurisdiction.

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BACKGROUND
The Court will accept as true all of the well-pleaded facts in Plaintiffs' Complaint,
drawing all reasonable inferences in favor of Plaintiffs as the non-moving parties. The
pertinent facts are as follows:
Plaintiffs, the co-administrators of the Estate of Mumun Barbaros ("Decedent"), filed
an initial Complaint in this matter on March 3, 2011 (Doc. 1). On June 23, 2011, Plaintiffs
filed an Amended Complaint, to which several defendants 'filed the pending motions to
dismiss and the motion for judgment on the pleadings.
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In their Amended Complaint, Plaintiffs allege that on March 18,2009, Decedent was
admitted to the Monroe County Correctional Facility ("MCCF") "following his arrest for a
number of alleged crimes." (Pis.' Am. Compl. at 1f 39, ECF Dkt. 43.) "At the time of

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[Decedent's] intake, [D]efendants conducted an intake interview." (Pis.' Am. Compl. at 1f
40.) Plaintiffs allege that Decedent advised Defendants during his intake interview that he

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"took Paxil and Trazodone on a daily basis." (Pis.' Am. Compl. at 1f 41.) Plaintiffs aver that
Decedent was "noted to have psychological issues which included among other things,
depression and the conditions that are associated with major depression." (PiS.' Am.

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Compl. at 1f 42.)
Plaintiffs maintain that U[~rom the time he entered MCCF on March 18,2009 through

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the evening of March 20, 2009, despite repeated request (sic) to the medical defendants

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and the correctional officer defendants, [Decedent] was denied his Paxil and Trazodone."

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(Pis.' Am. Compl. at ~ 44.) Plaintiffs assert that U[o]n March 20, 2009, during his

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arraignment, Decedent complained to Judge John Whitesell that he had not been receiving

his medication since his incarceration." (Pis.' Am. Compl. at ~ 45.) The Complaint avers

that "Judge Whitesell asked the police officers escorting [Decedent] back to MCCF to relay
Decedent's concerns." (Pis.' Am. Compl. at ~ 46.) The Complaint further avers that

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"Defendants failed to provide Decedent with his Trazodone medication from the time he
entered MCCF until the evening of March 20, 2009." (Pis.' Am. Compl. at ~ 48.) Plaintiffs
also state that "Defendant failed to provide Decedent with his Paxil medication from the time
he entered MCCF until the morning of March 21,2009." (Pis.' Am. Compl. at ~ 49.)
Plaintiffs assert that Paxil is a drug with a "short half-life and leaves a user's system
very quickly," and that its withdrawal symptoms include "worsening of underlying anxiety or
depreSSion, headache, tremor or 'shakes', gastrointestinal distress and fatigue, all of which
were present in Decedent during his incarceration." (Pis.' Am. Compl. at W50-51.)
"Suicidal thoughts are common withdrawal symptoms as well." (Pis.' Am. Compl. at ~ 52.)
Plaintiffs maintain that "[d]espite the fact that [D]efendants were aware of [Decedent's]
condition, including his withdrawal from Paxil, he was not placed on suicide watch or seen
by any of the medical defendants until March 20, 2009." (Pis.' Am. Compo at ~ 53.) "Even
after being seen for a psychiatric evaluation, [Decedent] was not placed on suicide watch,
nor provided any special psychiatric care." (Pls.'s Am. Compl. at ~ 54.)

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Plaintiffs also assert that Defendants "were aware that persons who present with the

symptoms being displayed by [Decedent] require prompt and specialized medical care and
attention." (Pis.' Am. Compl. at ~ 55.) "Further all [D]efendants, including the medical
defendants and the correctional officer defendants, were aware that someone who suffers
from major depression and has been denied medication such as Paxil, poses a suicide risk."
(Pis.' Am. Compl. at ~ 56.) Plaintiffs also aver that "Defendants observed [Decedent's]
deteriorating condition and were aware he was at a substantially increased risk of suicide
because of his deteriorating condition." (Pis.' Am. Compl. at ~ 57.) "At no time between
March 18, 2009 and March 22, did any of the [D]efendants, or any other employees of
Defendants Monroe County or PrimeCare, take steps to ensure that [Decedent] received
necessary medical care and attention for withdrawal symptoms." (Pis. Am. Compl. at ~ 64.)
Plaintiffs maintain that during the period in which Decedent was incarcerated at MCCF they
were aware that he should have been monitored closely and placed on suicide watch. (See
Pis.' Am. Compl. at ~ 67.) Plaintiffs assert that although Decedent was not on suicide
watch, they insist that the inmate housed in an adjacent cell was on such a watch, and that
Defendant Cleare was expected to pass the neighboring cell, and by virtue of its location,
the Decendent's cell, every fifteen minutes. (See Pis.' Am. Compl. at ~ 68-69.) Plaintiffs
aver that Defendant Cleare falsified documents demonstrating that he properly made his
rounds every fifteen minutes, and that Defendant Cleare's failure to properly maintain a
suicide watch on Decedent's neighbor facilitated Decedent's own suicide. (See Pis.' Am.
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Compl. at mr 68-70.} Decedent "killed himself by swallowing shreds of his own t-shirt."

(Pis.' Am. Compl. at 1l71.)
Plaintiffs allege that Defendants were "deliberately indifferent" to Decedent's serious
medical needs. (See Pis.' Am. Compl. at 11 85.) Plaintiffs assert six separate causes of
action, two federal and four state: (counts 1and 3) cruel and unusual punishment under the
Eighth Amendment and/or due process violations under the Fourteenth Amendment; (count
2) intentional infliction of emotional distress; (count 4) medical malpractice; (count 5)
wrongful death; and (count 6) a survival action pursuant to the Pennsylvania Survival Act,
42 Pa. C.S.A. § 8302.
STANDARD

These matters are presented to the district court as both motions to dismiss and a
motion for judgment on the pleadings. In light of the Supreme Court's decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937
(2009), the Middle District of Pennsylvania has adopted the following standard by which to
treat motions to dismiss. "[no survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face."
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). In Iqbal, the Court emphasized
that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id.
at 1950. Furthermore, U[d]etermining whether a complaint states a plausible claim for relief
will ... be a context-specific task that requires the reviewing court to draw on its judicial
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experience and common sense." Id. (citation omitted); McTernan v. City of York, 577 F.3d

521,530 (3d Cir. 2009).
District courts confronted by a motion to dismiss should engage in a two-step
analysis. First, the district court should accept all well-pleaded facts as true, but may reject
mere legal conclusions. Second, the district court should then determine whether the facts,
as asserted, establish a "plausible claim for relief." Iqbal, 129 S.Ct. at 1950. Thus, a
complaint must "show" an entitlement to relief with facts, as a mere allegation that a plaintiff
is entitled to relief is insufficient to withstand amotion to dismiss. See Philips v. Co. of
Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). As the Supreme Court instructed in Iqbal,
U[w]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - that the
pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949.
Similarly, judgment on the pleadings will "not be granted unless the movant clearly
establishes there are no material issues of fact, and he is entitled to judgment as a matter of
law." Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005)(citing Soc'y YHiII
Civil Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). The Court "must view the facts
presented in the pleadings and the inferences to be drawn therefrom in the light most
favorable to the nonmoving party." Id.

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DISCUSSION
Defendants filed two Motions to Dismiss and a Motion for Judgment on the
Pleadings. Each motion will be discussed in turn.

I.

Motions to Dismiss
The moving Defendants' Motions to Dismiss posit that Plaintiffs have failed to state a

claim under 28 U.S.C. § 1983, and that simple claims for medical malpractice should not be
turned into claims for constitutional violations "merely because the victim is a prisoner."

(See Thomas Sr. in Supp. Mot. to Dismiss at 4, ECF Dkt. 47.) The crux of Plaintiffs' Section
1983 claims arise from the allegation that Defendants were deliberately indifferent to
Decedent's serious medical needs and thus violated his right to be free from cruel and
unusual punishment under the Eighth Amendment and/or violated his due process rights
under the Fourteenth Amendment. The contours of the law in this area are well-defined:
"While the Eighth Amendment does not apply to pre-trial detainees, the Due Process
Clause of the Fourteenth Amendment does provide them with a right to adequate medical
treatment that is analogous to a prisoner's rights under the Eighth Amendment." Gray v.

City of Detroit, 399 F.3d 612,615-616 (6th Cir. 2005)(citing City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)). At the time of his
incarceration, Decedent was a pre-trial detainee; thus, any claim predicated upon Eighth
Amendment violations cannot survive as a matter of law. Plaintiffs' argument, however, that
Decedent's due process rights under the Fourteenth Amendment were violated remains
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tenable under this framework. Accordingly, the Court will evaluate Plaintiffs' "Fourteenth

Amendment claim for inadequate medical care under the standard used to evaluate similar
claims brought under the Eighth Amendment." See Natale v. Camden County Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003). It should be noted, however, that the Court
further analyzes the alleged constitutional deprivation in light of the Third Circuit's holding in
Montgomery v. Ray, 145 F. App'x 738 (3d Cir. 2005), in which the Court found that the
Eighth Amendment "only acts as a -noar for due process inquiries into medical and non­
medical conditions of pretrial detainees." Id. at 740. Specifically, this Court must also
consider "whether the conditions of confinement (or here, inadequate medical treatment)
amounted to punishment prior to an adjudication of guilt." See id. (citing Hubbard v. Taylor,
399 F.3d 150, 158 (3d Cir. 2005)).
A. Plaintiffs' Section 1983 Claim
Both Motions to Dismiss argue that when a prisoner has received medical treatment,
courts should be reluctant to second guess the decisions of medical personnel and
constitutionalize claims that are otherwise premised upon state tort law. See United States
ex rei. Walker v. Fayette County Pennsylvania, 599 F.2d 573, 575 n.2 (3d Cir. 1979). "In
sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise
to acivil rights cause of action, and an inmate's disagreement with medical treatment is
insufficient to establish deliberate indifference." Isley v. Beard, No. 02-2006, 2009 WL
3199694, at *4 (M.D. Pa. Sept. 29, 2009). The facts presented in Plaintiffs' Complaint,
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assumed as true for the purpose of deciding this motion, indicate that Decedent was not

given a medical evaluation until March 20, 2009, although he arrived at the MCCF on March
18, 2009. Plaintiffs' Complaint further alleges that the types of medication prescribed to
Decedent have severe withdrawal symptoms and a Ushort half-life and leaves a user's
system very quickly." (See Pis.' Am. Compl. at mr-52.) Plaintiffs maintain that Defendants
behaved in a deliberately indifferent manner when they failed to provide Decedent with
medicine to treat depression and other psychological issues. Defendants move to dismiss
Plaintiffs' Amended Complaint on the grounds that Plaintiffs' do not sufficiently allege that
Decedent was treated with deliberate indifference, and that Plaintiffs' claim for medical
malpractice should not be transformed into a constitutional violation.
When Decedent was incarcerated at the MCCF on March 18, 2009, the prison
conducted an intake interview in which Decedent informed prison officials that he required
Paxil and Trazodone on a daily basis. Plaintiffs allege that prison officials noted that
Decedent had psychiatric issues, including major depression. Plaintiffs further allege that
Decedent was not provided with Trazodone until the evening of March 20, 2009, and Paxil
on the morning of March 21,2009, despite Decedent's repeated requests to medical and
prison officials.
Defendants argue that Decedent was seen by medical staff on multiple occasions,
including for a psychological examination, and provided with all necessary medication within
72 hours of incarceration. While it is true that umere disagreement with [a prison medical
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staffs'] prescription decision without more, does not state an Eighth Amendment violation,"

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Catchings v. Marrow, 160 F. App'x 256,258 (3d Cir. 2005)(internal citations omitted), the

current matter as it is presented to the Court is somewhat different. Here, Plaintiffs not only
disagree with the medical treatment provided to Decedent, but they allege that it was
wrongfully withheld for non-medical reasons for an unreasonable period given the type of
treatment required.
In order to establish a violation of a detainee's "constitutional right to adequate
medical care, evidence must show (i) a serious medical need, and (ii) acts or omissions by
prison officials that indicate deliberate indifference to that need." Natale, 318 F.3d at 582
(citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
Plaintiffs' have established that Decedent suffered from psychological conditions,
including major depression, which required daily medication. The question confronted by
the Court, therefore, is whether the Defendants were deliberately indifferent to Decedent's
serious medical needs.
"Deliberate indifference is a 'subjective standard of liability consistent with
recklessness as the term is defined in cnminallaw.'" Natale, 318 F.3d at 582 (quoting Nicini
v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)). The Supreme Court has held in order to find a

prison official liable for deliberate indifference, Plaintiffs must provide proof that the official
"knows of and disregards an excessive risk to inmate health or safety." Natale, 318 F.3d at
582 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811
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(1994)). The official must be "both [] aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and ... draw the inference." Natale,
318 F.3d at 582 (citing Farmer, 511 U.S. at 837)). To survive a motion to dismiss on this
issue, Plaintiffs must sufficiently allege facts that tend to prove Defendants are guilty of such
deliberate indifference.
The Third Circuit has found deliberate indifference to exist in cases where there was
"objective evidence that [a] plaintiff had serious need for medical care," and such evidence
was ignored by prison officials. See Nicini, 212 F.3d at 815 n. 14. The Third Circuit has
also found deliberate indifference in cases where "necessary medical treatment is delayed
for non-medical reasons." See Monmouth County Corr. Inst. Inmates v. Landaro, 834 F.2d

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326,247 (3d Cir. 1987)(citing Ancata v. Prison Health Servs., 769 F.2d 700,704 (11th Cir.

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1985)); see also Natale, 318 F.3d at 582-84 (denying defendant's motion for summary

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judgment on the grounds that prison officials ignored a prisoner's need for insulin when

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evidence on the record indicated that prison officials had knowledge of the prisoner's

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diabetic condition).

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Plaintiffs' Amended Complaint provides sufficient allegations that Defendants may
have acted with deliberate indifference to the serious medical needs of Decedent. Although
Defendants cite numerous holdings for the proposition that courts should not second guess
the medical treatment provided by prison officials, Plaintiffs' Amended Complaint goes
beyond questioning the provision of specific treatment and raises the possibility that prison
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officials knew that Decedent suffered from a severe medical condition and did not attempt to
provide appropriate, necessary care in a timely manner. At this preliminary stage, it would
be inappropriate for the Court to make any 'findings of fact or to cast doubt upon any
allegations as set forth in Plaintiffs' Amended Complaint. If all facts alleged in Plaintiffs'
Amended Complaint are construed in Plaintiffs' favor, Plaintiffs establish acognizable claim
under the Fourteenth Amendment.
Although Defendants are correct in their assertion that medical malpractice is not
transformed into a constitutional violation merely because the victim is a prisoner, see
Estelle v. Gamble, 429 U.S. 97, 106,97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and that only

unnecessary and wanton pain or deliberate indifference to the serious medical needs of a
prisoner rises to the level of a constitutional violation, the Court is unable to discern at this
juncture, and under the specific circumstances in this case, whether or not Plaintiffs will be
able to ultimately prove their case. In considering a motion to dismiss, however, the Court
need only determine whether Plaintiffs' state a viable cause of action based upon the
presumptively true facts contained in their pleadings. In the present matter, Plaintiffs meet
this initial threshold, and their Section 1983 claim under the Fourteenth Amendment will be
permitted to move forward.
B. Plaintiffs' Provision of a Certificate of Merit
Medical Defendants assert that Plaintiffs have failed to file a proper certificate of
merit as required under Pa. R. Civ. P. 1042.3(a). That rule states, in full:
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In any action based upon an allegation that a licensed professional deviated
from an acceptable professional standard, the attorney for the plaintiff, or the
plaintiff if not represented, shall file with the complaint or within sixty days
after the filing of the complaint, a certificate of merit signed by the attorney or
party that either: (1) an appropriate licensed professional has supplied a
written statement that there exists a reasonable probability that the care, skill
or knowledge exercised or exhibited in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable professional standards
and that such conduct was a cause in bringing about the harm, or (2) the

claim that the defendant deviated from an acceptable professional standard is

based solely on allegations that other licensed professionals for whom this

defendant is responsible deviated from an acceptable professional standard,

or (3) expert testimony of an appropriate licensed professional is unnecessary
for prosecution of the claim.
The Superior Court of Pennsylvania has held that a certificate of merit "must be 'filed
within sixty days of the original complaint, notwithstanding the filing of preliminary objections
and/or an amended complaint." Ditch v. Waynesboro Hosp., 917 A.2d 317,326 (Pa. Super.
2007). Defendants assert that Plaintiffs have failed to file any certificate of merit; however,

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the record indicates that Plaintiffs filed acertificate of merit concurrently with their original
complaint. (See Pis.' Complaint, ECF Dkt. 1.) The certificate of merit filed by Plaintiffs
specifically applies to all Medical Defendants named in Plaintiffs' Complaint. Accordingly,
Medical Defendants' argument that Plaintiffs' medical malpractice claim must be dismissed
for their failure to provide certificates of merit with regard to each named Medical Defendant
fails as a matter of law.
C. Intentional Infliction of Emotional Distress

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Medical Defendants contend that Plaintiffs claim for intentional infliction of emotional
distress ("liED") must be dismissed because Plaintiffs "cannot prove any set of facts in
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support of their claim which would entitle them to relief." (See Medical Defs.' Sr. in Supp.

Mot. to Dismiss, at 6, ECF Dkt. 51.) Although the parties agree that the contours of an liED
claim are unsettled in Pennsylvania, see Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650,
652 (Pa. 2000), the Superior Court has held:
When an intentional infliction of emotional distress claim is dismissed upon
demurrer, the appropriate legal standard to be applied in reviewing the claim
is whether the complaint sufficiently pleads the claim in a manner that
corresponds, "at a minimum," with the provisions of the Restatement
(Second) of Torts, § 46(1), Outrageous Conduct Causing Severe Emotional
Distress.
Reardon v. Allegheny College, 926 A.2d 477, 487 n. 12 (Pa. Super. 2007).

Section 46 of the Restatement (Second) of Torts, inter alia, holds:
One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such
bodily harm.
Taylor, 754 A.2d at 652 (quoting Restatement (Second) of Torts § 46).

The Superior Court's holding in Reardon, supra, establishes that to be found liable
for liED, the defendant's conduct "must be so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in any civilized society." Reardon, 926 A.2d at 488 (quoting Hoy v.
Angelone, 720 A.2d 745, 753-54 (Pa. 1998)). Given the nature of the claims Plaintiffs lodge

against Defendants, it would be premature to dismiss the liED claim at this time, and it is
appropriate to permit Plaintiffs to engage in discovery on this issue. At this stage, Plaintiffs
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assert that it is outrageous conduct to have denied Decedent necessary psychiatric

medication. Plaintiffs' claim for liED is adequately pleaded, and supported by sufficient
factual allegations, so that it remains a viable claim and should properly proceed to
discovery. The Court, however, has serious reservations about the validity of this claim in
light of existing state law. We note that the cases in which the courts of Pennsylvania have
found a cause of action for liED truly present what from any vantage point is deliberately
extreme and outrageous conduct. See, e.g., Papieves v. Lawrence, 263 A.2d 118 (Pa.
1970)(defendant, after striking and killing plaintiffs son with automobile, and after failing to
notify authorities or seek medical assistance, buried body in a field where discovered two
months later and returned to parents); Banyas v. Lower Bucks Hosp., 437 A.2d 1236 (Pa.
Super. Ct. 1981)(defendants intentionally fabricated records to suggest that plaintiff had
killed athird party which led to plaintiff being indicted for homicide); Chuy v. Philadelphia
Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979)(defendant's team phYSician released to

press information that plaintiff was suffering from fatal disease, when physician knew such
information was false). Nevertheless, at this juncture, we will allow Plaintiffs' cause to
proceed while recognizing that the obstacles to such a claim under the case law are indeed
formidable.
D. Policies and Procedures
Medical Defendants assert that "[c]orporate medical providers are only held liable for
constitutional violations if they had policies or customs that caused constitutional violations."
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(See Medical Defs.' Br. in Supp. Mot. to Dismiss at 9.) The Third Circuit's decision in Natale

is instructive:

Not all state action rises to the level of a custom or policy. A policy is made

"when a decisionmaker possess[ing] final authority to establish municipal

policy with respect to the action issues a final proclamation, policy or edict." A

custom is an act "that has not been formally approved by an appropriate

decisionmaker," but that is "so widespread as to have the force of law.

Natale, 318 F.3d at 584 (internal citations omitted).
The Third Circuit continued:
There are three situations where acts of a government employee may be

deemed to be the result of a policy or custom of the governmental entity for

whom the employee works, thereby rendering the entity liable under § 1983.
The first is where "the appropriate officer or entity promulgates a generally
applicable statement of policy and the subsequent act complained of is simply
an implementation of that policy." The second occurs where "no rule has
been announced as policy but federal law has been violated by an act of the
policymaker itself." Finally, a policy or custom may also exist where "the
policymaker has failed to act affirmatively at all, [though] the need to take
some action to control the agents of the government 'is so obvious, and the
inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have
been deliberately indifferent to the need.'"

Natale, 318 F.3d at 584 (internal citations omitted).
In the present matter, Plaintiffs' Amended Complaint alleges that the individual
defendants violated Decedent's constitutional rights as a result of certain policies, customs,
and procedures promulgated by Monroe County and PrimeCare Medical, Inc. Plaintiffs
state a cause of action and provide a sufficient factual basis in support thereof. Specifically,
the Amended Complaint alleges:
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105. The violations of [Decedent's] constitutional rights, [Decedent's]

damages, and the conduct of the individual defendants were directly and

proximately caused by the encouragement, tolerance, ratification of, and/or

deliberate indifference of Monroe County PrimeCare to, policies, practices,

and/or customs of refusing, delaying, failing to coordinate, or otherwise

interfering with inmates' necessary treatment with medical specialists.

106. The violations of [Decedent's] constitutional rights, [Decedent's]

damages, and the conduct of the individual defendants were directly and

proximately caused by the failure of Monroe County and PrimeCare, with

deliberate indifference, to develop and implement policies, practices, and

procedures to ensure that inmates receive proper follow-up medical care or

medical care from medical specialists and to ensure that inmates are placed

on suicide watch when necessary.

Pis. Am. Compl. at

mr 106-106.

It is necessary that this issue proceed to discovery because evidence concerning tl1e
existence of any improper policies, customs, or procedures will be addressed in the
discovery process, and the presence of a dispute of material fact as to such policies or
procedures may be determined through a future motion for summary judgment. At the
motion to dismiss stage, Plaintiffs need only to state a cause of action in accordance with
the standards set forth in Iqbal and Twombly, and Plaintiffs have again exceeded this
threshold. Accordingly, Medical Defendants' motion to dismiss on these grounds will be
denied.

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II. Motion for Judgment on the Pleadings

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Corrections Officer Jesse Cleare ("Cleare") moves to dismiss the claims against him
on three separate grounds. He asks whether: (1) Plaintiffs set forth a cause of action under
42 U.S.C. § 1983 when the Amended Complaint admits that Decedent was evaluated by
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health care professionals and was treated accordingly; (2) Cleare's failure to observe an
inmate in a neighboring cell violated any constitutional right of Decedent; and (3) Cleare is

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entitled to immunity under 42 Pa. C.S.A. § 8541?
A. Plaintiffs Section 1983 Claim Against Cleary
The Third Circuit established the standard to be applied by district courts in
evaluating prisoner suicide cases in Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir.
1988). In that case, the Court held that "if [custodial] officials know or should know of the
particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on
them an obligation not to act with reckless indifference to that vulnerability." Wargo v.
Schuylkill County, 348 F. App'x 756,759 (3d Cir. 2009)(citing Colburn, 838 F.2d at 669)).
The plaintiff therefore has the burden to establish three elements: (1) the detainee had a
"particular vulnerability to suicide," (2) the custodial officer knew or should have known of
that vulnerability, and (3) those officers "acted with reckless indifference" to the detainee's
particular vulnerability. See Wargo, 348 F. App'x at 759 (citing Colburn v. Upper Darby
Twp., 946 F.2d 1017, 1023 (3d Cir. 1991)).
The Third Circuit has repeatedly affirmed that Ilia prison custodian is not a guarantor
of aprisoner's safety,' and therefore the fact that a suicide took place is not enough on its
own to establish that prison officials were recklessly indifferent in failing to take reasonable
precautions to protect prisoners entrusted to their care." Wargo, 348 F. App'x at 759
(quoting Freedman v. City ofAllentown, 853 F.2d 1111, 1115 (3d Cir. 1988)). In order to
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show a detainee had a particular vulnerability to suicide, the plaintiff must show that there
was "a strong likelihood, rather than a mere possibility, that self-inflicted harm [would]
occur." Wargo, 348 F. App'x at 759 (quoting Woloszyn v. County of Lawrence, 396 F.3d
314,320 (3d Cir. 2005)). "It is not enough to show that the detainee fits within acategory of
persons who may be more likely to commit suicide." Id. 11nstead, in this case, the Estate
has the burden of demonstrating that [Decedent] himself had a particular vulnerability to
suicide." Id.
In the present matter, Plaintiffs have alleged facts which, taken as true, do not
support a Section 1983 claim against Cleare. Plaintiffs' Amended Complaint admits that
Decedent was examined by prison medical personnel on March 20, 2008. The Amended
Complaint also admits that prison medical personnel made the decision to refrain from
placing Decedent on suicide watch. Cleare argues that he was not in a position to override
the decisions made by the prison medical staff, and that he should not be held accountable
for their alleged miSjudgments. As the Court noted in Ellison v. Scheipe, 570 F. Supp. 1361
(E.D. Pa. 1983), "prison officials cannot be required to second guess the medical judgment
of the [staff] physician." Id. at 1363. In the present matter, Cleare, who serves as a
corrections officer, should not be held responsible for the decisions of medical personnel as
to whether Decedent should have been placed on a suicide watch. The Third Circuit's
precedent demonstrates that Cleare should not be held responsible for Decedent's suicide
because although Decedent may belong to a "category of persons more likely to commit

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suicide, that is not enough to establish an individual risk." Wargo, 348 F. App'x at 761. As
the Third Circuit noted in Colburn, the detainee must have a "particular vulnerability" to
suicide. See Colburn, 838 F.2d at 669. Plaintiffs' Amended Complaint, even while granting
every factual inference in their favor, does not establish that Cleare had any reason to know
that Decedent had a "particular vulnerability" to commit suicide. Plaintiffs' Amended
Complaint clearly shows that medical personnel evaluated Decedent, and it is not Cleare's
job, or place, to question the recommendations of medical personnel.
Further, Plaintiffs maintain that Cleare was derelict in his duties when he failed to
routinely inspect the cell of Decedent's neighbor who was placed on suicide watch.
Plaintiffs posit that Cleare's failure to appropriately make his assigned rounds contributed to
Decedent's death because it is likely that the suicide would have been prevented if Cleare
passed the neighboring cell in which Decedent took his own life. Plaintiffs'speculative
argument is misplaced. Deliberate indifference requires that Cleare have subjective
knowledge of a "particular vulnerability" of the Decedent to commit suicide. Although Cleare

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likely had such subjective knowledge concerning the vulnerability of Decedent's neighbor,

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the Amended Complaint does not adequately allege that Cleare had such knowledge with
regard to Decedent. Cleare had no heightened responsibility to ensure Decedent's safety

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because the prison medical staff did not place Decedent on suicide watch and Cleare was
not the guarantor of Decedent's safety. See Wargo, 348 F. App'x at 759.

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Accordingly, Defendant Jesse Cleare's Motion for Judgment on the Pleadings will be
granted.
CONCLUSION

For the reasons set forth in this Memorandum Opinion, Defendants' Motions to
Dismiss will be Denied, but Defendant Jesse Cleare's Motion for Judgment on the
Pleadings will be Granted. Aseparate Order will follow.:.-.__

DATE: September 19, 2012
obert D. Mariani
United States District Judge

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