KAPP v. WETZEL et al

Filing 41

OPINION AND ORDER granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim, denying 25 Motion to Dismiss for Failure to State a Claim and dismissing Defendant Wetzel from the case. Signed by Chief Magistrate Judge Maureen P. Kelly on 5/10/17. (ard)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAREN KAPP, individually and as
Administrator of the Estate of her minor son,
ZACHARY PROPER,
Plaintiff,
v.
JOHN E. WETZEL, ERIC BUSH, ROBERT
MARSH, MHM SERVICES, MURRAY
THOMPSON, YIN HA YUN, KAREN
MARUSA, and MARK NICHOLSON,
Defendants.

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Civil Action No. 16-1380
Chief Magistrate Judge Maureen P. Kelly

Re: ECF Nos. 20 and 25

OPINION
KELLY, Chief Magistrate Judge
Plaintiff Karen Kapp (“Plaintiff’”), individually and as the administrator of the estate of
her minor son Zachary Proper (“Zachary”), brings the instant civil action stemming from the
Zachary’s death by suicide, at the age of 15, while incarcerated at the State Correctional
Institution at Pine Grove (“SCI Pine Grove”). Presently before the Court are two Motions to
Dismiss: (1) one filed by Defendants Eric Bush, Robert Marsh, Karen Marusa, Mark Nicholson,
Murray Thompson and John E. Wetzel 1 (collectively, “the Corrections Defendants”), ECF No.
20; and (2) one filed by Defendants MHM Services (“MHM”) and Yin Ha Yun (“Dr. Yun”)
(collectively, “the Mental Health Defendants”), ECF No. 25.
For the following reasons, the Corrections Defendants’ Motion to Dismiss, ECF No. 20,
will be granted in part and denied in part and the Mental Health Defendants’ Motion to Dismiss
will be denied.
1

In her Response to the Motions to Dismiss, Plaintiff concedes that her claims against Defendant John E. Wetzel
are insufficient and does not oppose his Motion to Dismiss. ECF No. 37 at 5. Accordingly, the Corrections
Defendants’ Motion to Dismiss is granted as to Defendant Wetzel and he will be dismissed from the case.

I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed her Complaint on September 6, 2016. ECF No. 1. Therein, she makes the

following allegations.
On October 7, 2012, when he was 13 years old, Zachary murdered his grandparents. Id.
¶ 16. He pled guilty to murder in the third degree and was sentenced to 30 to 80 years’
imprisonment. Id. ¶ 17. On January 16, 2014, Zachary was transferred to SCI Pine Grove. Id.
¶ 18. SCI Pine Grove primarily houses youthful offenders. Id.
Following his transfer to SCI Pine Grove, Zachary was evaluated by mental health staff.
Id. ¶ 19. The evaluation revealed that Zachary had a significant history of depression, physical
and sexual abuse, suicidal ideation, multiple suicide attempts, hearing voices, psychiatric
hospitalization and substance abuse.

Id.

Zachary was prescribed multiple psychiatric

medications at the time of his transfer. Id. On January 17, 2014, Dr. Yun, a psychiatrist at SCI
Pine Grove, changed one of Zachary’s medications, substituting Risperdal for Abilify. Id. ¶¶ 2,
20. On January 25, 2014, the medication was decreased at Zachary’s request. Id. ¶ 20. Between
January and July of 2014, Dr. Yun repeatedly changed Zachary’s psychiatric medications and/or
dosages. Id. ¶ 21. In June of 2014, Zachary began regularly refusing to take some or all of his
psychiatric medications. Id. ¶ 22. Between June 15, 2014, and September 2, 2014, Zachary
signed approximately 25 releases related to his refusal to take his medication. Id. ¶¶ 23-24. No
action was taken to address Zachary’s medication non-compliance. Id. ¶ 25. Close in time to his
fifteenth birthday, July 27, 2014, Zachary quit his job cleaning bathrooms. Id. ¶ 26. Zachary
had enjoyed this job as it provided him an opportunity to leave his cell. Id. On July 29, 2014, 2
Zachary saw Dr. Yun. Id. ¶ 27. Dr. Yun’s report from this meeting does not mention Zachary’s

2

The Complaint states this date as July 29, 2013. ECF No. 1 ¶ 27. It is apparent from context that the year should
be 2014.

2

medication non-compliance or that he quit his job. Id. Further, despite recent medication
adjustments and medication non-compliance, Dr. Yun did not schedule a follow-up appointment
with Zachary. Id.
Beginning in March, 2014, Zachary had treatment approximately once a month with a
Psychological Services Specialist, usually Defendant Marusa. Id. ¶ 28. On August 13, 2014,
Zachary reported to Defendant Marusa that he was crying and experiencing emotions he had not
felt in a long time. Id. ¶ 29. He expressed regret for killing his grandparents and stated that he
was having “mind flashes” and dreams about them. Id. When he left the appointment, however,
Zachary was “fine” and was laughing. Id. Defendant Marusa did not take any action on the
information obtained in this meeting. Id.
Beginning on or about September 1, 2014, Zachary stopped calling Plaintiff. Id. ¶ 30.
Plaintiff called SCI Pine Grove every day that week and reported the missing calls, expressing
her fear that Zachary might commit suicide. Id. The representatives she talked to told her they
were aware of Zachary’s prior suicide attempts and would “keep an eye on him.” Id.
On September 8, 2014, Marusa met with Zachary and reported that he was on “transition
status,” a form of discipline, but that this was “just a little setback.” Id. ¶ 31. As of that date,
Zachary had not taken any of his medications except for Celexa for at least three weeks. Id. ¶ 32.
Also, as of that date, Zachary had not been examined or evaluated by Dr. Yun or any other
psychiatrist for nearly six weeks. Id. ¶ 33.
At 10:30 p.m. on September 8, 2014, Defendant Nicholson observed Zachary alive in his
cell. Id. ¶ 34. During Defendant Nicholson’s next round, at approximately 11:05 p.m., he found
Zachary lifeless in his cell. Id. ¶ 36. Zachary had hung himself from the frame of his bunk bed

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with a bed sheet. Id. ¶ 35. After efforts to resuscitate him failed, Zachary was pronounced dead
at approximately 11:47 p.m. Id. ¶ 36.
Plaintiff sets forth three counts in the Complaint: (1) Count I: a civil rights action
pursuant to 42 U.S.C. § 1983 against all Defendants for violations of Zachary’s constitutional
rights, ECF No. 1 ¶¶ 38-43; (2) Count II: a state law wrongful death/medical negligence claim
against Defendants MHM, Yun, Marsh, Thompson and Marusa; and (3) Count III: a state law
survival/medical negligence claim against all Defendants.
On November 3, 2016, the Corrections Defendants filed a Motion to Dismiss and a Brief
in Support. ECF Nos. 20-21. On November 7, 2016, the Mental Health Defendants filed a
Motion to Dismiss and a Brief in Support. ECF No. 25-26. On December 29, 2016, Plaintiff
filed a Response to the Motions to Dismiss. ECF No. 37. On January 18, 2017, the Mental
Health Defendants filed a Reply to the Response. ECF No. 40. The Motions to Dismiss are now
ripe for review.
II.

STANDARD OF REVIEW
As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007), a complaint may properly be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on
its face.” Id. at 570. In assessing the merits of a claim subject to a motion to dismiss, a court
must accept all alleged facts as true and draw all inferences gleaned therefrom in the light most
favorable to the non-moving party. Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir.
2008) (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). A pleading
party need not establish the elements of a prima facie case at this stage; the party must only “put
forth allegations that ‘raise a reasonable expectation that discovery will reveal evidence of the

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necessary element[s].’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quoting
Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)). The
scope of review may extend to “matters of public record, orders, exhibits attached to the
complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
III.

DISCUSSION
A.

The Corrections Defendants’ Motion to Dismiss
1.

Count I: Section 1983
a.

Allegations of constitutional violations

The Corrections Defendants assert that Plaintiff’s allegations in Count I fall short of
asserting a claim for constitutional violations and instead, at best, assert a state law claim of
professional liability. ECF No. 21 at 3-5. Specifically, the Corrections Defendants baldly assert
that “the allegations contained in Count I of Plaintiff’s Complaint fail to assert cognizable claims
for any violation of a constitutionally afforded right.” ECF No. 21 at 4.
In order to succeed on a Section 1983 claim, a claimant must show: (1) the conduct
complained of was performed by a person acting under color of state law; and (2) this conduct
deprived the claimant of rights, privileges, or immunities secured by the Constitution or laws of
the United States. 42 U.S.C. § 1983; Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).
Although the allegations in Count I refer separately to violations of Zachary’s rights
under the Eighth and Fourteenth Amendments, the constitutional violation alleged in Count I,
Defendants’ alleged disregard for Zachary’s serious medical need, i.e., a particular vulnerability
to suicide, must be evaluated according to Eighth Amendment standards. See Albright v. Oliver,
510 U.S. 266, 273 (1994)(holding that “where a particular Amendment provides an explicit

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textual source of constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process [of the Fourteenth
Amendment], must be the guide for analyzing these claims.”)(citation omitted).
A refusal to provide medical care to a prisoner violates the Eighth Amendment's
prohibition of “cruel and unusual punishment.” U.S. Const. amend. VIII. “Regardless of how
evidenced,” whether “manifested by prison doctors in their response to the prisoner’s need or by
prison guards in intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed,” “deliberate indifference to a prisoner’s serious
illness or injury states a cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). A particular vulnerability to suicide is a serious medical need encompassed within the
rule of Estelle. Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014), rev’d on other
grounds, Taylor v. Barkes, 135 S. Ct. 2042 (2015) (citation and quotation marks omitted).
Recently, the United States Court of Appeals for the Third Circuit reiterated that:
… [O]ur case law teaches that, when a plaintiff seeks to hold a prison
official liable for failing to prevent a detainee's suicide … a plaintiff must
show: (1) that the individual had a particular vulnerability to suicide,
meaning that there was a “strong likelihood, rather than a mere possibility,”
that a suicide would be attempted; (2) that the prison official knew or
should have known of the individual's particular vulnerability; and (3) that
the official acted with reckless or deliberate indifference, meaning
something beyond mere negligence, to the individual's particular
vulnerability.
Palakovic v. Wetzel, No. 16-2726, 2017 U.S. App. LEXIS 6438 at *19-20 (3d Cir. filed April
14, 2017).
Plaintiff alleges that Defendants were aware of facts and circumstances which put them
on notice that Zachary presented an objective and excessive risk of suicide, including:
1.

Zachary was diagnosed with depression;

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2. Zachary has previously been diagnosed with Post Traumatic Stress
Disorder;
3. Zachary had a history of suicide attempts;
4. Zachary had history of physical and sexual abuse;
5. Zachary had a history of abusing controlled substances;
6. Zachary required medication to treat his mental illnesses;
7. Zachary had been refusing his psychiatric medication for several
weeks;
8. Zachary had recently, for the first time, expressed remorse for the
murder of his grandparents;
9. Zachary had been emotional and had been tearful thinking about his
grandparents;
10. Zachary had recently been sentenced to a lengthy prison term;
11. Zachary had recently quit his job;
12. Zachary had stopped calling his mother.
ECF No. 1 ¶ 40.
Plaintiff alleges that, despite knowledge of these facts and circumstances, Defendants
violated Zachary’s Eighth Amendment rights when they failed to take reasonable action to
protect Zachary from harming himself. Id. ¶ 41. Specifically, Plaintiff attributes the following
failures to Defendants:
1. Failure to schedule and carry out psychiatric appointments and other
appointments for mental health care with appropriate frequency;
2. Failure to recognize that Zachary presented a heightened risk of
suicide;
3. Failure to properly monitor Zachary’s compliance with prescribed
medication;
4. Failure to properly respond to Zachary’s medication non-compliance;
5. Failure to place Zachary under close supervision;
6. Failure to place Zachary in a safe environment which would have
prevented him from committing suicide;
7. Failure to properly observe Zachary’s condition while in custody;
8. Failure to conduct appropriately frequent cell checks;
9. Failure to remove bed sheets and/or bunk beds with ligature tie off
points from Zachary’s cell.
Id.
Contrary to the bald assertion of Corrections Defendants that Plaintiff’s allegations fail to
establish a cognizable claim for a violation of a constitutionally afforded right, the allegations
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clearly establish a plausible claim of deliberate indifference to Zachary’s particular vulnerability
to suicide resulting in his death. At this early stage of the case, such a showing is sufficient to
sustain a claim for a constitutional violation. Accordingly, the Corrections Defendants’ Motion
to Dismiss on this basis is denied.
b.

Personal involvement

The Corrections Defendants next assert that Plaintiff has failed to specifically allege the
personal involvement of the individual Corrections Defendants in any cognizable claim, instead
attributing all allegations to Defendants in general. ECF No. 21 at 5-8.
It is well established that “[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.” Baraka v.
McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). Personal involvement in the alleged wrongdoing
may be shown “through allegations of personal direction or of actual knowledge and
acquiescence.”

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
In the Complaint, Plaintiff alleges that all of the Corrections Defendants had knowledge
of Zachary’s background and circumstances and that each acted in a particular way which, in
light of that knowledge, led to Zachary’s death.

An examination of the allegation as to

individual Corrections Defendants follows.
(1)

Defendant Bush

Plaintiff alleges that Defendant Bush, superintendent of SCI Pine Grove, was responsible
for the training, supervision, direction and conduct of all SCI Pine Grove personnel and for
ensuring the health and safety of inmates, particularly the availability and provision of adequate

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medical treatment. ECF No. 1 ¶¶ 5-6. At this stage of the case, these allegations, coupled with
his alleged knowledge of the particular facts and circumstances of Zachary’s history and
condition, are sufficient to support a Section 1983 claim against Defendant Bush.
(2)

Defendant Marsh

Plaintiff alleges that Defendant Marsh, the Pennsylvania Department of Corrections
Licensed Psychologist Director, was responsible for creating, executing and enforcing policies
ensuring adequate mental health treatment for inmates at SCI Pine Grove. Id. ¶¶ 6-7. At this
stage of the case, these allegations, coupled with his alleged knowledge of the particular facts
and circumstances of Zachary’s history and condition, are sufficient to support a Section 1983
claim against Defendant Marsh.
(3)

Defendant Thompson

Plaintiff alleges that Defendant Thompson, a Licensed Psychologist Manager at SCI Pine
Grove, was responsible for supervision of mental health care provided to inmates at SCI Pine
Grove, including Zachary. Id. ¶ 9. Further, Defendant Thompson evaluated Zachary following
his transfer to SCI Pine Grove and thus had direct knowledge of Zachary’s history. Id. ¶ 19. At
this stage of the case, these allegations, coupled with his alleged knowledge of the particular
facts and circumstances of Zachary’s history and condition, are sufficient to support a Section
1983 claim against Defendant Thompson.
(4)

Defendant Marusa

Plaintiff alleges that, in March of 2014, Zachary began monthly treatments with a
Psychological Services Specialist, “usually Defendant Marusa.” Id. ¶ 28. Plaintiff further
alleges that:
On August 13, 2014, Zachary reported to Defendant Marusa that he was
experiencing “emotions and feelings like crying that he had not experienced in a
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long time.” He expressed regret for killing his grandparents, stated that he has
having “mind flashes” and dreams involving them. However, when he left the
appointment he “was fine” and “was laughing.” On information and belief,
Defendant Marusa did not report this information to anyone or take any action
based on this information.
Id. ¶ 29.
Plaintiff also alleges that, on September 8, 2014, the date of Zachary’s suicide, Defendant
Marusa met with Zachary and reported that “he was on ‘transition status,’ which is a form of
discipline, but that this was ‘just a little setback.’” Id. ¶ 31.
At this stage of the case, these allegations of Defendant Marusa’s knowledge of
Zachary’s prior and recent history and his involvement with Zachary’s treatment are sufficient to
support a Section 1983 claim against Defendant Marusa.
(5)

Defendant Nicholson

Plaintiff alleges that Defendant Nicholson, a corrections officer, observed Zachary alive
in his cell at approximately 10:30 p.m. on September 8, 2014, and then discovered Zachary
“lifeless” at 11:05 p.m. Id. ¶¶ 34, 36. At this stage of the case, these allegations, coupled with
his alleged knowledge of the particular facts and circumstances of Zachary’s history and
condition, are sufficient to support a Section 1983 claim against Defendant Nicholson.
Based on this review, the Motion to Dismiss of the Corrections Defendants is denied on
the basis of lack of personal involvement.
2.

Counts II and III: Wrongful Death and Survival Action/Medical
Negligence

In Count II of the Complaint, Plaintiff alleges a claim of Wrongful Death/Medical
Negligence and in Count III for Survival/Medical Negligence. Specifically, Plaintiff asserts that
Mental Health Defendants MHM and Yun and Corrections Defendants Marsh, Thompson and
Marusa were directly responsible for the provision of medical care to Zachary, ECF No. 1 ¶ 45;
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they had a duty to provide him with reasonable medical care and to prevent him from causing
harm to himself, id. ¶ 46; and Defendants were negligent, wanton and reckless in the provision of
medical services to Zachary, id. ¶¶ 47-52.
In the Motion to Dismiss and Brief in Support, the Corrections Defendants argue that
Counts II and III: (1) are barred by sovereign immunity, ECF No. 21 at 8-11; and (2) fail to state
a claim, id. at 12-13
a.

Sovereign immunity

The Commonwealth of Pennsylvania, as well its officials and employees acting with the
scope of their official duties, enjoy sovereign immunity from suit with limited exceptions. 1 PA.
CONS. STAT. § 2310. The exceptions for which the Pennsylvania General Assembly has waived
sovereign immunity are: (1) vehicle liability; (2) medical-professional liability; (3) care, custody
or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5)
potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store
sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 PA. CONS. STAT. § 8522(b).
The exception relevant to this case is that of medical-professional liability, defined as “Acts of
health care employees of Commonwealth agency medical facilities or institutions or by a
Commonwealth employee who is a doctor, dentist, nurse or related health care personnel.” Id.
§ 8522(b)(3).
In this case, Defendants Marsh, Thompson and Marusa, the Corrections Defendants
against whom these claims are brought, are health care personnel in a Commonwealth institution.
As such, sovereign immunity is not applicable to the claims against them. As to the other
Corrections Defendants, Bush and Nicholson, who are not health care personnel, Plaintiff does
not make specific reference to them in Counts II and III of the Complaint. Accordingly, the

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Corrections Defendants’ Motion to Dismiss based on sovereign immunity is denied as to
Defendants Marsh, Thompson and Marusa and granted as to Defendants Bush and Nicholson.
b.

Wrongful Death and Survival Acts

In further support of their Motion to Dismiss as to Counts II and III, the Corrections
Defendants assert that wrongful death and survival actions are not substantive and independent
causes of action.

ECF No. 21 at 12-13.

This underdeveloped argument disregards the

allegations of negligent acts and omissions upon which these claims are premised.
The statutory authorization for a wrongful death action in Pennsylvania, is found at 42
PA. CONS. STAT. § 8301(a), which provides: “[a]n action may be brought … to recover damages
for the death of an individual caused by the wrongful at or neglect or unlawful violence or
negligence of another ....”

Further, the statutory authorization for a survival action in

Pennsylvania is found at 42 PA. CONS. STAT. § 8302, which provides: “[a]ll causes of action or
proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the
death of one or more joint plaintiffs or defendants.”
Plaintiff based her claims of wrongful death/medical negligence and survival/medical
negligence on the following failures of the relevant Defendants:
1. Failure to order close behavioral observation of Zachary;
2. Failure to assign him to or keep him in an acute mental health pod;
3. Failure to provide an adequate treatment plan while incarcerated;
4. Failure to adequately assess his response to medications;
5. Failure to adequately document and address his refusal of medication;
6. Failure to institute proper suicide precautions;
7. Failure to remove[] items including bed sheets and bunk beds with
ligature tie off points from his cell;
8. Failure to adequately supervise and observe inmates with mental
illnesses.
ECF No. 1 ¶¶ 48, 57, 58.

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Further, Plaintiff alleges “grossly inadequate treatment” of Zachary in the following
ways:
1. Failure to provide appropriately frequent psychiatric follow-up visits
given the many adjustments to [Zachary’s] medication and his frequent
refusal of medication;
2. Failure to provide appropriate psychopharmacological management
leading to progressive worsening of depression;
3. Failure to provide adequate supervision of an acutely depressed
juvenile inmate with several identified risk factors for suicide;
4. Failure to provide appropriately frequent mental health evaluations;
5. Failure to provide appropriately in depth mental health evaluations;
6. Failure to provide adequate supervision to protect [Zachary] from
carrying out a course of action to commit suicide.
Id. ¶¶ 50, 57, 58.
The above allegations form a basis for plausible claims of liability for wrongful
death/medical negligence and survival/medical negligence. Thus, the Corrections Defendants’
Motion to Dismiss is denied as to Counts II and III in this regard.
B.

The Mental Health Defendants’ Motion to Dismiss
1.

Count I: Section 1983
a.

Respondeat superior

The Mental Health Defendants argue that Plaintiff cannot proceed against MHM Services
under a theory of respondeat superior. ECF No. 26 at 5-6. Indeed, for § 1983 purposes, a
defendant “cannot be held responsible for the acts of its employees under a theory of respondeat
superior or vicarious liability.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir.
2003). However, the United States Court of Appeals for the Third Circuit has held that a
contracted health care provider, such as MHM, could be held liable if the plaintiff shows that
there was a relevant policy or custom and that the policy or custom caused the constitutional
violation the plaintiff alleges. Id. Such a policy or custom may exist “where the policymaker

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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.” Id. (citations and quotation marks omitted).
In this case, Plaintiff alleges:
Defendants failed to promulgate, implement and ensure compliance with
adequate policies and procedure for the protection of inmates and the
prevention of inmate self-harm and suicide in violation of Plaintiff’s rights
under the Fourteenth Amendment to the United States Constitution in the
following particular respects:
1. Failure to employ qualified medical professionals to provide mental
health services to inmates a[t] SCI Pinegrove;
2. Failure to properly train employees at SCI Pinegrove to recognize and
respond to inmates who present a heightened risk of suicide;
3. Failure to adopt adequate procedures for evaluating and monitoring
inmates for risk of suicide;
4. Failure to provide adequate medical care to inmates who present a
heightened risk of suicide;
5. Failure to require sufficiently frequent cell checks on inmate who
exhibit a heightened risk of suicide;
6. Failure to adopt adequate procedures for monitoring and treatment of
inmates who present a heightened risk of suicide;
7. Failure to remove bedsheets and bunk beds from the cells of inmates
who present a heightened risk of suicide;
8. Failure to adequately monitor medication compliance and respond to
non-compliance by inmates who exhibit significant risk factors for suicide;
9. Failure to adequately supervise inmates with mental illnesses;
10. Failure to provide a safe environment that would have prevented
Zachary from committing suicide.
ECF No. 1 ¶ 42.
These allegations are sufficient to support a plausible claim against MHM based on a
policy or custom which caused a constitutional violation. Accordingly, the Motion to Dismiss on
this basis is denied.
b.

Personal involvement

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The Mental Health Defendants, like the Corrections Defendants, argue that Plaintiff has
failed to specifically allege the personal involvement of the individual Mental Health Defendants
in any cognizable claim, instead attributing all allegations to Defendants in general. ECF No. 26
at 4-5. An examination of the allegations as to the individual Mental Health Defendants follows.
(1)

Dr. Yun

Plaintiff alleges that Dr. Yun, a psychiatrist employed by MHM to provide psychiatric
service to inmates at SCI Pine Grove, evaluated Zachary following his transfer. ECF No. 1
¶¶ 10, 19. Plaintiff further alleges that Dr. Yun changed Zachary’s medication on January 17,
2014, substituting Risperdal for Abilify. Id. ¶ 20. On January 25, 2014, Dr. Yun decreased this
medication at Zachary’s request. Id. Between January and July of 2014, Dr. Yun repeatedly
changed Zachary’s psychiatric medications and/or dosages. Beginning in June of 2014, Zachary
began to regularly refuse to take his medication. Id. ¶ 22. On July 29, 2014, Dr. Yun saw
Zachary. Id. ¶ 27. Dr. Yun’s report from that meeting does not mention Zachary’s medication
non-compliance or the fact that Zachary had recently quit his job. Id. Dr. Yun did not schedule
a follow-up appointment with Zachary. Id.
These allegations establish that Dr. Yun was the last psychiatrist to see Zachary before
his suicide. Further, coupled with the inferences to which Plaintiff is entitled at this stage of the
litigation of Dr. Yun’s knowledge of Zachary’s prior and recent history, these allegations
establish a plausible claim that Dr. Yun acted with reckless or deliberate indifference to
Zachary’s particular vulnerability to suicide. Thus, the Motion to Dismiss based on a lack of
personal involvement will be denied.

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(2)

MHM Services

As set forth above, Plaintiff’s allegations are sufficient to support a plausible Section
1983 claim against MHM based on a policy or custom which caused a constitutional violation.
No further personal involvement is necessary. Accordingly, the Motion to Dismiss on this basis
is denied.
c.

Vulnerability to suicide

In support of their Motion to Dismiss, the Mental Health Defendants next argue that
Plaintiff has failed to establish that Zachary had a particular vulnerability to suicide. ECF No. 26
at 6-8. In opposing the Motion, Plaintiff argues at length that Defendants knew of Zachary’s risk
of suicide and had received repeated notice from his loved ones.

ECF No. 37 at 2-3.

Vulnerability to suicide is shown by a “strong likelihood of suicide” which is “so obvious
that a lay person would easily recognize the necessity for preventative action.” Colburn v. Upper
Darby Township, 946 F.2d 1017, 1025 (3d Cir. 1991) (citation and quotation marks omitted).
However, as the United States Court of Appeals for the Third Circuit recently explained, at the
pleading stage, a plaintiff need not demonstrate that the decedent’s suicide was temporally
imminent or clinically inevitable.

Palakovic, 2017 U.S. App. LEXIS 6438 at *34.

An

individual’s vulnerability to suicide must be assessed based on the totality of the facts presented.
Id.
At this early stage of the instant litigation, the sum of the facts alleged in the Complaint
are sufficient to support a plausible inference that there was a “strong likelihood” that selfinflicted harm/suicide would occur, and that Zachary therefore suffered from a particular
vulnerability to suicide. The Motion to Dismiss on this basis is denied. 3

3 The Mental Health Defendants make two additional arguments which need not be addressed in light of the
determination that Plaintiff’s Section 1983 claim is based on Eighth Amendments standards and Zachary’s particular

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IV.

CONCLUSION
For the foregoing reasons, the Corrections Defendants’ Motion to Dismiss, ECF No. 20,

will be granted in part and denied in part and the Mental Health Defendants’ Motion to Dismiss,
ECF No. 25, will be denied. An appropriate Order follows.
ORDER
AND NOW, this 10th day of May, 2017, IT IS HEREBY ORDERED that the Mental
Health Defendants’ Motion to Dismiss, ECF No. 25, is DENIED.
IT IS FURTHER ORDERED that, as to Corrections Defendant Wetzel, the Corrections
Defendants’ Motion to Dismiss, ECF No. 20, is GRANTED with prejudice. Defendant Wetzel is
dismissed from the case.
IT IS FURTHER ORDERED that, as to Corrections Defendants Marsh, Thompson and
Marusa, the Corrections Defendants’ Motion to Dismiss, ECF No. 20, is DENIED.
IT IS FURTHER ORDERED that, as to Corrections Defendants Bush and Nicholson, the
Corrections Defendants’ Motion to Dismiss, ECF No. 20, is DENIED as to Count I and
GRANTED as to Counts II and III.
Pursuant to Rule 4 of the Federal Rules of Appellate Procedure, any party wishing to
appeal from this Order must do so within thirty (30) days by filing a notice of appeal as provided
in Rule 3, Fed. R. App. P., with the Clerk of Court, United States District Court, 700 Grant
Street, Room 3110, Pittsburgh, PA 15219.
BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

vulnerability to suicide: (1) an argument that Plaintiff fails to plead an otherwise-based Eighth Amendment claim;
and (2) an argument that Plaintiff fails to establish a Fourteenth Amendment claim. ECF No. 26 at 8-9.

17

cc:

All counsel of record via CM/ECF

18