FERENCZ v. MEDLOCK et al

Filing 130

MEMORANDUM OPINION AND ORDER granting in part and denying in part [123, 124, 125] Defendants' Objections to R&R; denying 126 Plaintiff's Objections to R&R; granting in part and denying in part 73 Motion for Summary Judgment; granting in part and denying in part 75 Motion for Summary Judgment; granting in part and denying in part 78 Motion for Summary Judgment; denying 82 Motion for Summary Judgment; and adopting the R&R except as modified therein; all as further explained in the opinion. Signed by Judge Terrence F. McVerry on 7/8/14. (mh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHANNON FERENCZ,
Administratrix of the Estate of Cade
Stevens,
Plaintiff,
v.
LARRY MEDLOCK,
BRIAN MILLER,
GEARY O’NEIL,
BARRY SIMON,
JOHN DOE ##1, 2, 3 AND 4,
PRIMECARE MEDICAL, INC.,
LOUIS KRUKOWSKY, and
FAYETTE COUNTY,
PENNSYLVANIA,
Defendants.

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Civil Action No. 11 – 1130
District Judge Terrence F. McVerry
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court are Objections filed by all parties (ECF Nos. 123, 124, 125 and
126) to the Report and Recommendation (“R&R”) issued on May 15, 2014 by Chief Magistrate
Judge Lisa P. Lenihan (ECF No. 120), which addressed the parties’ cross-motions for summary
judgment. Plaintiff has filed responses in opposition to the Objections filed by Defendants. The
Objections are ripe for disposition. The standard of review is de novo.

Factual and Procedural Background
This case arises from a tragic situation, namely, the suicide death of Cade Stevens, a
pretrial detainee at the Fayette County Prison on September 12, 2009. The R&R has thoroughly
1

set forth the factual record, including disputed matters, and that recitation is adopted herein.
Plaintiff Shannon Ferencz is the decedent’s mother and the administratrix of his estate.
Named as Defendants are Larry Medlock, the now-retired warden of Fayette County Prison;
Brian Miller, the Deputy Warden in 2009; Corrections Officers Geary O’Neil and Barry Simon;
Louis Krukowsky, a counselor at the prison; Fayette County; PrimeCare Medical Incorporated
(“Primecare”), which was contracted by Fayette County to provide medical care to inmates; and
Primecare nurse-employees Carol Younkin and Timmee Burnsworth. The Second Amended
Complaint asserts the following claims: Count I encompasses multiple civil rights violations
under 42 U.S.C. § 1983 for deliberate indifference to the serious health needs of Stevens1; Count
II is a survival action under Pennsylvania state law; and Count III is a wrongful death action
under Pennsylvania state law. On October 17, 2012, Chief Magistrate Judge Lenihan held that
the claims against nurses Younkin and Burnsworth were untimely and dismissed each of them as
parties to this case. On May 28, 2014, the “John Doe” Defendants were also dismissed from this
case.
To briefly summarize, when viewed in the light most favorable to Plaintiff, the record
reflects a series of events by which Stevens’ death could allegedly have been prevented. At 8:30
a.m. on September 11, Nurse Younkin performed an initial interview and assessed Stevens as a
“12” on the Intake Suicide Screening form. It is undisputed that according to prison and
Primecare policy (and the face of the form itself), if the total screening score is 8 or more, the
inmate must be placed on a suicide watch, which would trigger robust precautionary measures.
The intake nurse does not have discretion to not place such an inmate on suicide watch. Only a
1

This style of pleading makes resolution on summary judgment difficult, because numerous
claims and legal theories, against various different Defendants, have been lumped into a single
count of the complaint.
2

psychiatrist would have had authority to not place or remove an inmate from suicide watch.
CSMF ¶ 35.

Nevertheless, despite having knowledge of this policy, Nurse Younkin did not

place Stevens on suicide watch.2 Instead, Nurse Younkin placed Stevens on a less-stringent drug
withdrawal watch and arranged with Dr. Delio to begin a heroin withdrawal treatment protocol.
At 12:30 p.m. that day, Nurse Younkin met with counselor Krukowsky and Deputy
Warden Miller as members of the Inmate Classification Committee (“ICC”) to determine where
Stevens should be housed. The ICC would not have met if Stevens had been classified as suicidal
in the initial screening by Younkin because he would have automatically been put on suicide
watch.

Nurse Younkin did not inform Krukowsky or Miller of Stevens’ Intake Suicide

Screening score. Stevens was assigned to Cell B-1 on B-Range, with no cell mate assigned. The
cell was equipped with a video surveillance camera in service.
Younkin administered the first two doses of Stevens’ heroin withdrawal medication. A
factfinder could determine that Primecare Nurse Sabatula did not give Stevens his prescribed
dose of the appropriate medication at bedtime that evening.3 It is undisputed that Primecare
Nurse Burnsworth did fail to administer the withdrawal medication to Stevens at 8:00 a.m. the
next morning.4
The “movement sheet” which would have conveyed the enhanced observation needs
regarding Stevens was apparently not fully distributed throughout the institution.

Shift

commander Mauro, control room officer Strickler, assigned floor officer Simon, and roving
relief officer O’Neil all testified that they were not notified that Stevens had been placed on any
Nurse Younkin personally knew Stevens, who was a friend of her son.
Sabatula asserts that she administered the prescribed dose of medication at bedtime, but she
allegedly does not appear on the video footage.
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Burnsworth’s paperwork reflects that she had, in fact, given this medication. Her explanation,
which the factfinder could disbelieve, was that she was “working ahead” on her paperwork.
2

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type of special (suicide or drug withdrawal) watch. Although counselor Krukowsky was the
person who usually distributed the movement sheet, it is unclear who was responsible for this
task and apparently there was not a policy which ensured that such watch information was fully
communicated to all necessary personnel.
Officer O’Neil had some limited, unremarkable interactions with Stevens during his
regular shift on Friday, September 11. Officer Simon began his shift at 7:30 a.m. on Saturday,
September 12. Simon testified that he did a head count upon commencement of his shift, and
again visually observed Stevens at approximately 8:35-8:40 a.m. and 9:00 a.m. Officer Simon
testified that at approximately 9:30 a.m., he could see Stevens continuing to lay on his bunk. At
9:32 a.m. (based on the video time stamp), Stevens began pacing and tied his bed sheet to the
bars of his cell. At 9:33 a.m., Officer Simon left his chair and walked toward the control room
area off-camera.5 From 9:33 until 9:41 a.m., no officer was visibly on duty at the work station,
which was located approximately 20 feet from Stevens’ cell. At 9:34 a.m., Stevens tied the other
end of the sheet around his neck and attempted to hang himself. After a few minutes, he climbed
back down and laid back on his bunk. The sheet remained tied to the bars. From 9:37-9:39,
Stevens made another suicide attempt. At 9:40 a.m., Stevens again tied the sheet around his
neck. At 9:41 a.m., Officer Simon reappeared briefly and Officer O’Neil (assigned as a rover
that day) appeared on camera to relieve Simon for a 15-minute break.6 A jury could find that

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The police investigation report reflects that Simon made a floor inspection at 9:38 a.m. Simon
was subsequently fired for falsification of this inspection report.
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Officer Simon did not return to the work area after his break until after the suicide was
reported. However, he may have technically been on-post (but off-camera) if the jury finds that
he was in the passageway and conversing with the corrections officer in the control room for 2030 minutes. See Arbitration Opinion.
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O’Neil propped his feet up on a chair and took a nap for the next 24 minutes.7 At 9:41, Stevens
hanged himself again. At 9:43, his body stopped moving. At 10:05 a.m., Officers Yatsko and
Isler entered the work area; Yatsko saw Stevens on the monitor and alerted the control room; and
the officers went into Stevens’ cell and were unsuccessful in their attempt to resuscitate him.
All parties moved for summary judgment (ECF Nos. 73, 75, 78, 82). The R&R of
Magistrate Judge Lenihan recommended that: (1) the summary judgment motion filed by Fayette
County, counselor Krukowsky, Warden Medlock and Assistant Warden Miller be granted as to
Counts 2 and 3 (Pennsylvania Wrongful Death and Survival claims) based on immunity under
the Pennsylvania Political Subdivision Tort Claims Act, and denied in all other respects; (2) the
motion for summary judgment filed by Primecare be granted in part and denied in part as to
Counts 2 and 3 because Nurse Younkin’s actions constituted “professional negligence” while the
actions of Nurse Sabatula and Nurse Burnsworth constituted “ordinary negligence,” and denied
as to Count 1; (3) the summary judgment motion filed by Officers O’Neil and Simon be granted
as to Counts 2 and 3 based on immunity under the Pennsylvania Political Subdivision Tort
Claims Act, and denied in all other respects; and (4) Plaintiff’s motion for summary judgment be
denied. The instant Objections followed.

Legal Analysis
The Court appreciates the diligent and comprehensive efforts of the Magistrate Judge in
this difficult case. The Court writes separately to explain its different conclusions on some of the

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Officer O’Neil denies that he slept. The Court must consider the facts in the light most
favorable to the non-moving party.
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dispositive legal issues and to provide further guidance for the remaining parties as to the issues
to be determined at trial.
The Magistrate Judge correctly articulated the legal principles which govern prison
suicide cases in the Third Circuit.

Plaintiff’s § 1983 claim is grounded in the Eighth

Amendment’s prohibition against cruel and unusual punishment, as incorporated into the
Fourteenth Amendment. A plaintiff in a prison suicide case has the burden of establishing three
elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officers
knew or should have known of that vulnerability, and (3) those officers “acted with reckless
indifference” to the detainee's particular vulnerability. Colburn v. Upper Darby Twp., 946 F.2d
1017, 1023 (3d Cir. 1991) (“Colburn II”).
As explained in Colburn II, it is difficult to succeed on such claims because no state actor
directly inflicted the harm. Thus, Plaintiff must establish that a defendant acted with “deliberate
indifference” to a serious medical need, i.e., the inmate’s particular vulnerability to suicide. This
is a narrow and difficult standard. Simple negligence is not enough. Id. at 1024. Rather, a
plaintiff must establish that prison officials knew or should have known that there was “a strong
likelihood, rather than a mere possibility, that self-inflicted harm will occur.” Id. (Emphasis
added). To rise to a “strong likelihood,” Plaintiff must establish that the risk of suicide was “so
obvious that a lay person would easily recognize the necessity for preventative action.” Id. at
1025. The risk must be based on individual symptoms rather than group characteristics. Courts
are not permitted to infer, in hindsight, “from the prisoner's act of suicide itself that the prison
officials were recklessly indifferent in their obligation to a take reasonable precautions to protect
the safety of prisoners entrusted to their care.” Freedman v. City of Allentown, 853 F.2d 1111,

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1115 (3d Cir.1988). With that overview, the Court must review and address the § 1983 claims
against the various Defendants.8

A. Corrections Officers O’Neil and Simon
Plaintiff asserts two distinct theories as to why Officers O’Neil and Simon knew or
should have known of Stevens’ particular vulnerability to suicide: (1) the visible evidence of his
prior unsuccessful suicide attempts that morning; and (2) that they had information about his
drug withdrawal status, as communicated on the movement sheet. The Magistrate Judge
recommended that these claims survive for trial. The Court agrees in part and disagrees in part.
The Court agrees with the Magistrate Judge that summary judgment is not appropriate on
the “prior unsuccessful attempts” theory. A reasonable jury could conclude that O’Neil and/or
Simon knew or should have known that Stevens had a strong likelihood of suicide based on the
two unsuccessful attempts that morning. Their work station was within a few feet of Stevens’
cell; the attempts took place over ten minutes; they were visible on the video monitor; and the
sheet was left tied to the bars. A jury could find that the risk of suicide was “so obvious that a
lay person would easily recognize the necessity for preventative action.” In sum, a reasonable
jury could conclude that O’Neil and/or Simon were deliberately indifferent to these attempts.
Thus, this theory of liability under § 1983 should survive for trial.
On the other hand, Officers O’Neil and Simon are entitled to summary judgment on the
“drug withdrawal” theory.9 It is undisputed that Stevens was not placed on a suicide watch, so at

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These rights are well-established, such that the qualified immunity analysis parallels the
underlying consideration of whether such rights were violated.
9
The Magistrate Judge noted the officers’ defense to this theory, R&R at 27 n.28, but did not
fully analyze their legal argument.
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most the officers were aware that he was on a drug withdrawal watch. The Court of Appeals for
the Third Circuit has clearly and repeatedly held that the increased risk of suicide due to
intoxication or drug withdrawal cannot support a deliberate indifference claim. See Woloszyn v.
County of Lawrence, 396 F.3d 314, 322-23 (3d Cir. 2005) (finding no genuine issue of material
fact as to whether a pre-trial detainee had a particular vulnerability to suicide, despite the
detainee's intoxication, fluctuating mood, and reported distress about his family situation); See
also Colburn II, 946 F.2d at 1026–27 (holding that intoxication does not create an issue of
material fact regarding a particular risk of suicide). The record in this case is less alarming than
that in Wargo v. Schuylkill County, 348 Fed. Appx. 756 (3d Cir. 2009), in which the detainee
exhibited symptoms of drug addiction and withdrawal, attempted to take 10-12 oxycontin pills
that he smuggled into the prison; cut open his mattress; and had a staple removed from his eye.
Nevertheless, in Wargo the Court of Appeals affirmed summary judgment in favor of Defendants
and explained that the detainee’s interactions with prison officials (prior to the suicide attempt)
did not demonstrate a strong likelihood of a particular vulnerability to suicide. Accordingly,
officers O’Neal and Simon are entitled to summary judgment on the “drug withdrawal” theory.
It is undisputed that all of the Defendants, except Primecare, are immune from liability
under Pennsylvania tort law. The Court concurs with the R&R that these Defendants are entitled
to summary judgment on Counts 2 and 3. Accordingly, the motion for summary judgment filed
by O’Neil and Simon will be granted in part and denied in part as to Count 1, and granted as to
Counts 2 and 3. The only issue remaining for trial as to O’Neil and/or Simon is whether they
were deliberately indifferent to the prior suicide attempts.

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B. Deputy Warden Miller and Counselor Krukowsky
As an initial matter, it is undisputed that Deputy Warden Miller had no role in policymaking. Thus, the only theory of liability asserted against Miller and Krukowsky arises out of
their participation on the Inmate Classification Committee (“ICC”). Plaintiff contends that their
failure to ask Nurse Younkin about Stevens’ score on the Intake Suicide Screening form rises to
the level of “deliberate indifference.”

The Magistrate Judge recommended that this claim

proceed to trial. The Court concludes that Miller and Krukowsky are entitled to summary
judgment.
It is undisputed that pursuant to Primecare and prison policy, if the initial suicide
screening results in a score of 8 or more, the inmate must be placed on suicide watch. In
accordance with this policy, placement on suicide watch is not discretionary. Thus, in Stevens’
case, the ICC should never have met. Nurse Younkin acted in violation of the policy. It is also
undisputed that Nurse Younkin, the third member of the ICC, did not tell Miller or Krukowsky
that she had failed to follow this policy or that Stevens actually scored “12” on the Intake Suicide
Screening form. To the contrary, Younkin told Miller and Krukowsky that she was personally
acquainted with Stevens and that he denied being suicidal. There is no evidence in the record by
which a reasonable jury could conclude that Miller or Krukowsky knew or should have known of
a strong likelihood that Stevens had a particular vulnerability to suicide. Nurse Younkin failed to
share that information. Nor is there any evidence in the record by which a reasonable jury could
conclude that Miller and/or Krukowsky should have known that Younkin had violated the

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suicide-screening policy.

Accordingly, Miller and Krukowsky10 cannot be held to have acted

with deliberate indifference and are entitled to summary judgment on all counts. They will be
dismissed as parties to this action.

C. Fayette County and Primecare – Municipal Liability
The Second Amended Complaint asserts a number of theories of municipal liability
against Fayette County and/or its medical contractor Primecare based on alleged unconstitutional
policies and practices. Although the Magistrate Judge commented that not all of these theories
were meritorious, the R&R recommended that summary judgment be denied on these claims. To
provide for a more orderly and focused trial, the Court will clarify the parameters of the claim(s)
remaining for trial.
The R&R correctly set forth the legal principles which govern municipal liability. To
summarize, Plaintiff must establish that the alleged deprivation of Stevens’ constitutional rights
was caused by an official government policy or custom. Galarza v. Szalczyk, 745 F.3d 634, 639
(3d Cir. 2014).

Plaintiff must also show that the decision-maker(s) had notice that a

constitutional violation could occur and acted with deliberate indifference to this risk, such that
the municipality was the “moving force” behind the injury alleged. Berg v. County of Allegheny,
219 F.3d 261, 276 (3d Cir. 2000). An alleged failure to adequately train municipal employees
can ordinarily be considered deliberate indifference only when the failure has caused a pattern of
violations. Id. However, a plaintiff may also succeed by showing that a violation of federal
rights may be a “highly predictable consequence of a failure to equip law enforcement officers
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For the reasons set forth above, even if Krukowsky failed to deliver the movement sheet, he
cannot be held liable for deliberately disregarding a risk of suicide based on his knowledge of
Stevens’ drug withdrawal status. Stevens told Krukowsky that he was not suicidal.
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with specific tools to handle recurring situations.” Id. (citing Board of County Comm. of Bryan
County v. Brown, 520 U.S. 397, 409 (1997)). For example, in Berg the Court held that the
County’s failure to double-check to prevent typographical errors on a warrant led to an obvious
risk of an unlawful arrest of the wrong person.
Unfortunately, the risk that an inmate may attempt to commit suicide in prison is a
“recurring situation.” Indeed, the prison had a suicide screening protocol in place. However, the
evidentiary record reflects that the prison and Primecare apparently had no policy in place to
ensure that the results of that screening (i.e., placement on suicide watch and/or drug withdrawal
watch) were fully communicated to all relevant personnel, including the floor officers
responsible for conducting such watches. Apparently, it was counselor Krukowsky’s usual
“practice” to distribute the movement sheet which contained this information, but it is unclear
who -- if anyone -- was ultimately responsible for this essential task. In this case, numerous
officers, including the control room and floor officers, testified that they were not notified that
Stevens had been placed on any type of special watch. Obviously, a failure to communicate that
an inmate was to be on suicide watch would frustrate efforts to prevent that inmate’s suicide.
The Court will not countenance Defendants’ citation to HIPAA as a justification for their
refusal to fully communicate Stevens’ risk of suicide.11 As the Magistrate Judge aptly explained,
HIPAA contains an exception which specifically permits use of such medical information by
correctional institutions to protect the health and safety of inmates. R&R at 39-41; 45 C.F.R. §
164.512(k)(5).

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The Court does not regard the failure to share medical records as a distinct theory of municipal
liability. Rather, it is one aspect of the broader alleged policy failure to ensure that all special
watch needs were to be fully communicated.
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The Court concludes that this is the only theory of municipal liability which remains for
trial. The record does not support deliberate indifference by the municipal Defendants based on,
inter alia, the alleged lack of a policy which required officers to actually look at the video
screens12; the alleged failure to monitor officers at their work stations; the alleged failure to have
the video system operational; the alleged practice of misclassifying inmates; the alleged failures
in policy regarding administration of medications; the alleged failures to train; or the alleged
errors raised in the Johnson v. Medlock case. See generally Second Amended Complaint.
Indeed, Plaintiff has not pursued most of these theories. Each of these theories fails due to a lack
of evidentiary support and/or the lack of the requisite highly predictable causal link to Stevens’
suicide necessary to establish deliberate indifference.
In summary, the motion for summary judgment as to municipal liability will be denied in
part, based on the alleged lack of a policy to communicate special watch needs, and granted in all
other respects.

D. Warden Medlock – Supervisory Liability
To hold a supervisor liable because his policies or practices led to an Eighth Amendment
violation, the plaintiff must identify a specific policy or practice that the supervisor failed to
employ and show that: (1) the existing policy or practice created an unreasonable risk of the
Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created;

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The video screens were prominently placed, and it was not unreasonable to assume that even
minimally attentive officers would at least glance at them. Indeed, the video footage reflects that
Officer Yatsko noticed Stevens immediately upon entering the work area and looking at the
monitor. There is no evidence of a pattern of guards ignoring the video monitors, such that the
need for a specific policy should have been readily apparent.
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(3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or
practice.” Beers–Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001).
For the reasons set forth above, the Court has concluded that the prison’s policy (or lack
thereof) for ensuring full communication of inmate watch information may constitute deliberate
indifference. Because Warden Medlock was allegedly responsible for prison policies, he may be
held liable in his supervisory policymaking role, even though he had no personal knowledge or
involvement in the actual events surrounding the suicide. See, e.g., Sparks v. Susquehanna
County, 2009 WL 922489 at *8-10 (M.D. Pa. 2009). All other claims against Warden Medlock
will be dismissed.

E. Primecare – Vicarious Liability for Negligence
At Counts 2 and 3, Plaintiff asserts that Primecare is vicariously liable for the negligence
of its nurse-employees Younkin, Sabatula and Burnsworth. Primecare does not dispute its status
as an employer. Instead, it argues that the allegations of misconduct constitute “professional
negligence” for which Plaintiff failed to submit a certificate of merit pursuant to Pa. R.C.P.
1042.3. The Magistrate Judge concluded that the actions of nurses Sabatula and Burnsworth
constituted “ordinary negligence” such that they survive for trial, but that the actions of Nurse
Younkin constituted “professional negligence” such that they are procedurally barred. Although
the Pennsylvania law which delineates these theories is less than clear, the Court concludes that
the actions of all three nurses constitute ordinary negligence.
The “certificate of merit” requirement in Rule 1042.3 was intended to weed out frivolous
claims which allege that medical and other professionals deviated from acceptable professional
standards of care. But Rule 1042.3 was not intended to be a procedural trap to strike down
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potentially meritorious claims sounding in ordinary negligence. Ditch v. Waynesboro Hospital,
17 A.3d 310, 318-19 (Pa. 2011) (Todd, J., dissenting). In Ditch, Justice Todd urged the
Pennsylvania Supreme Court to address the boundary between ordinary negligence and
professional negligence in the medical context. Id. at 316-17.
The distinction between professional and ordinary negligence is not based on the identity
of the defendant, but upon the nature of the alleged negligent conduct. “[N]ot every act by a
professional or his or her subordinates involves professional standards or judgments. Some
simply require common sense.” Id. at 319. Thus, in Merlini v. Gallitzin Water Authority, 980
A.2d 502, 506-08 (Pa. 2009), the Pennsylvania Supreme Court held that although the negligence
claim was brought against a professional engineer in the context of his work performance, the
claim constituted ordinary negligence because the alleged misconduct (installing a water line
without a right-of-way) did not involve professional judgment beyond the scope of common
sense. Similarly, in Balter v. United States, 2014 WL 1365905 at *25 (M.D. Pa. April 7, 2014),
the Court recently held that an inmate’s claim against a prison medical provider sounded in
ordinary negligence rather than medical malpractice. As the Court explained, the claim did not
involve the exercise of medical judgment, but instead alleged administrative errors (failures to
schedule a followup appointment) which were within the realm of common knowledge.
Another way to articulate the applicable test is whether the actions complained of involve
technical complexity or esoteric issues involving medical judgment beyond the realm of common
knowledge and experience, or are matters of nonmedical, administrative, ministerial, or routine
service, which a jury is competent to determine. Ditch, 17 A.3d at 318. In Merlini, the
Pennsylvania Supreme Court explained:

“the most distinguishing feature of professional

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malpractice is the need for expert testimony to clarify complex issues for a jury of laypersons.”
980 A.2d at 506.
Applying these principles to the facts of this case, the Court concludes that the alleged
conduct of all three nurses constitutes ordinary negligence. The Court adopts the R&R as to the
alleged failure of nurses Sabatula and Burnsworth to administer Stevens’ drug withdrawal
medication. The nurses had no discretion to refuse to provide those doses. By the same token,
Nurse Younkin had no discretion in failing to put Stevens on a suicide watch. Importantly, her
professional judgment in administering the intake suicide examination is not at issue – it is
undisputed that Younkins gave Stevens a score of 12. The only alleged negligence is her failure
to follow the mandatory Primecare and prison policy when a score of 12 is recorded. Nurse
Younkin’s conduct did not involve medical judgment – indeed, the policy was designed to
eliminate any professional discretion by the intake nurse and to make placement on suicide
watch mandatory.13 No expert testimony is necessary. It is within the realm of common sense.
Accordingly, a Rule 1042.3 certificate of merit is not required and Primecare may be held
vicariously liable for the alleged negligent actions or inactions of all three nurses. In summary,
Primecare’s motion for summary judgment on Counts 2 and 3 will be denied.
Plaintiff has objected to the R&R and seeks judgment in her favor on these claims. The
Court concludes that trial is necessary. In considering summary judgment in favor of Plaintiff,
the Court must construe the evidentiary record in the light most favorable to Defendants. For
example, Nurse Sabatula testified that she did, in fact, administer the bedtime dose of medication

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Only a psychiatrist had authority to remove an inmate from suicide watch. CSMF ¶ 35.
Younkin testified that her refusal to follow the policy was based on her personal knowledge of
Stevens, who was a friend of Younkin’s son, as well as her general disagreement with the
number of points assessed on the screening form for drug withdrawal symptoms.
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and Nurse Burnsworth testified that she would have given the morning dose, but for the suicide.
There are also questions of causation. In sum, the Court agrees with the R&R and Plaintiff’s
motion for summary judgment will be denied.

Conclusion
In summary, for the reasons set forth above, the Court concludes that only the following
claims remain outstanding for resolution at trial: (1) § 1983 against officers O’Neil and Simon
for deliberate indifference to the prior suicide attempts; (2) § 1983 municipal liability against
Fayette County and Primecare for lack of a policy to communicate special watch needs; (3) §
1983 claim against Warden Medlock for lack of a policy to communicate special watch needs;
and (4) Pennsylvania tort liability claims against Primecare for the alleged ordinary negligence
of nurses Younkin, Sabatula and Burnsworth. Defendants’ motions for summary judgment will
be granted in all other respects. Plaintiff’s motion for summary judgment will be denied.
Defendants Miller and Krukowsky will be dismissed from the case and the caption will be
modified accordingly.
An appropriate Order follows.

McVerry, J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHANNON FERENCZ,
Administratrix of the Estate of Cade
Stevens,
Plaintiff,
v.
LARRY MEDLOCK,
BRIAN MILLER,
GEARY O’NEIL,
BARRY SIMON,
JOHN DOE ##1, 2, 3 AND 4,
PRIMECARE MEDICAL, INC.,
LOUIS KRUKOWSKY, and
FAYETTE COUNTY,
PENNSYLVANIA,
Defendants.

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Civil Action No. 11 – 1130
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) District Judge Terrence F. McVerry
) Chief Magistrate Judge Lisa Pupo
Lenihan
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ORDER OF COURT
AND NOW, this 8th day of July, 2014, for the reasons set forth in the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that the
Objections to the Report and Recommendation issued on May 15, 2014 by Chief Magistrate
Judge Lisa P. Lenihan filed by Fayette County, Krukowsky, Medlock and Miller (ECF No. 123)
are GRANTED IN PART AND DENIED IN PART; the Objections filed by Primecare Medical
Incorporated (ECF No. 124) are GRANTED IN PART AND DENIED IN PART; the Objections
filed by officers O’Neil and Simon (ECF No. 125) are GRANTED IN PART AND DENIED IN
PART; and the Objections filed by Plaintiff (ECF No. 126) are DENIED.

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The MOTION FOR SUMMARY JUDGMENT filed by Fayette County, Krukowsky,
Medlock and Miller (ECF No. 73) is DENIED IN PART at Count 1 as to Fayette County and
Medlock regarding the prison policy for communicating special watch needs, and GRANTED in
all other respects, and Krukowsky and Miller are hereby dismissed as parties;
The MOTION FOR SUMMARY JUDGMENT filed by Primecare (ECF No. 75) is
DENIED IN PART at Count 1 regarding the prison policy for communicating special watch
needs, DENIED IN PART at Counts 2 and 3 regarding the negligence of nurses Younkin,
Sabatula and Burnsworth, and GRANTED in all other respects;
The MOTION FOR SUMMARY JUDGMENT filed by officers O’Neil and Simon (ECF
No. 78) is DENIED IN PART at Count 1 regarding the prior suicide attempts, and GRANTED
in all other respects; and
The MOTION FOR SUMMARY JUDGMENT filed by Plaintiff (ECF No. 82) is
DENIED.
IT IS FURTHER ORDERED that the Report and Recommendation dated May 15,
2013 (ECF No. 120), is ADOPTED as the opinion of the Court except as modified herein.

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The caption is hereby amended as follows:
SHANNON FERENCZ,
Administratrix of the Estate of Cade
Stevens,
Plaintiff,
v.
LARRY MEDLOCK, GEARY
O’NEIL, BARRY SIMON,
FAYETTE COUNTY and
PRIMECARE MEDICAL, INC.,
Defendants.

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Civil Action No. 11 – 1130
District Judge Terrence F. McVerry
Chief Magistrate Judge Lisa Pupo Lenihan

By the Court:
s/Terrence F. McVerry
United States District Judge
cc: Counsel of Record
(Via ECF Electronic Mail)

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