PALAKOVIC et al v. WETZEL et al
Filing
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MEMORANDUM OPINION AND ORDER granting 9 Motion to Dismiss for Failure to State a Claim; granting 10 Motion to Dismiss. It is further Ordered that Plaintiffs are granted 21 days from the date of this order to file an amended complaint, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 6/26/2015. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RENEE and DARIAN PALAKOVIC,
as Administrators of the Estate of
BRANDON PALAKOVIC,
Plaintiffs,
v.
JOHN WETZEL, KENNETH CAMERON,
JAMIE BOYLES, JAMEY LUTHER,
JAMES HARRINGTON, DR. RATHORE,
MICHELLE HOUSER, MORRIS
HOUSER, FRANCIS PIROZZOLA,
JOHN DOE #1, #2, JOHN DOES #3-6,
MHM, INC.,
Defendants.
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CIVIL ACTION NO. 3:14-145
JUDGE KIM R. GIBSON
MEMORANDUM OPINION
I.
Introduction
This civil rights action arises from the suicide of Brandon Palakovic while he was
incarcerated at the State Correctional Institution at Cresson (“SCI Cresson”) and housed
in the prison’s Restricted Housing Unit (“RHU”). Plaintiffs—Palakovic’s parents and the
administrators of his estate—have asserted various civil rights claims against Defendants,
alleging violations of the Eighth and Fourteenth Amendments to the Constitution and the
Americans with Disabilities Act (“ADA”), as well as state law claims. Presently before the
Court are Defendants’ motions to dismiss (ECF Nos. 9, 10)1 the complaint pursuant to
ECF No. 9 is a motion to dismiss filed by the “Corrections Defendants,” including John Wetzel,
Kenneth Cameron, Jamie Boyles, Jamey Luther, James Harrington, Michelle Houser, Morris
Houser, and Francis Pirozzola. ECF No. 10 is a motion to dismiss filed by the “Mental Health
Defendants,” including Dr. Rathore and MHM, Inc.
1
Federal Rule of Civil Procedure 12(b)(6). Having reviewed the motions and briefs, along
with the applicable law, and for the reasons explained below, the Court will GRANT
Defendants’ motions to dismiss. However, Plaintiffs will be granted leave to file an
amended complaint.
II.
Jurisdiction
The Court has jurisdiction over the federal constitutional claims pursuant to 28
U.S.C. § 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1983. The Court has supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is proper under
28 U.S.C. § 1391(b)(2) because a substantial portion of the events giving rise to the claims
occurred in the Western District of Pennsylvania.
III.
Background
This case involves the untimely death of Brandon Palakovic, who committed
suicide while he was incarcerated at SCI Cresson. The following facts are alleged in the
complaint, which the Court will accept as true for the sole purpose of deciding the
pending motions.
Palakovic was sentenced to serve 16-48 months imprisonment for burglarizing an
occupied structure. (ECF No. 1 ¶ 21). Palakovic began his sentence in June 2011 and was
incarcerated at SCI Cresson. (Id.). During the thirteen months while he was at SCI
Cresson, Palakovic was “repeatedly subjected to solitary confinement via placement in the
prison’s Restricted Housing Unit (RHU), characterized by extreme deprivations of social
interaction and environmental stimulation, abusive staff, and inadequate to non-existent
2
mental health care.”
(Id. ¶ 22).
According to Plaintiffs, “Defendants created and
sustained conditions of solitary confinement in the RHU that subjected Brandon Palakovic
to torture, causing him to take his own life.” (Id. ¶ 24). Four days before his death,
Palakovic was placed in solitary confinement for a minor rules violation. (Id. ¶ 45). On
July 17, 2012, Palakovic committed suicide. (Id. ¶ 24). Palakovic had a history of mental
health issues as a child and was institutionalized for mental health reasons on four
occasions and had been diagnosed with various mental illnesses. (Id. ¶ 25).
Palakovic’s parents, as administrators of his estate, commenced this action by
filing a five-count complaint on September 8, 2014. (ECF No. 1). Count I asserts a claim
for deliberate indifference to the deprivation of basic human needs in violation of the
Eighth and Fourteenth Amendments to the Constitution. (Id. ¶¶ 139-40). Count II asserts
a claim for deliberate indifference to serious medical needs in violation of the Eighth and
Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 141-42). Count III
asserts a claim for discrimination on the basis of a disability in violation of the Americans
with Disabilities Act (“ADA”). (Id. ¶¶ 143-45). Count IV asserts a wrongful death claim
under Pennsylvania law.
(Id. ¶¶ 146-51).
Count V asserts a survival action under
Pennsylvania law. (Id. ¶¶ 152-54).
Defendants now move to dismiss the complaint. (ECF Nos. 9, 10). The parties
have fully briefed the Court on the pending motions (see ECF Nos. 11, 13, 17, and 18), and
this matter is now ripe for adjudication.
3
IV.
Standard of Review
Defendants move to dismiss the complaint pursuant to Rule 12(b)(6). The Federal
Rules of Civil Procedure require that a complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule
12(b)(6) allows a party to seek dismissal of a complaint or any portion of a complaint for
failure to state a claim upon which relief can be granted. Although the federal pleading
standard has been “in the forefront of jurisprudence in recent years,” the standard of
review for a Rule 12(b)(6) challenge is now well established. Fowler v. UPMC Shadyside,
578 F. 3d 203, 209 (3d Cir. 2009).
In determining the sufficiency of a complaint, a district court must conduct a twopart analysis. First, the court must separate the factual matters averred from the legal
conclusions asserted. See Fowler, 578 F. 3d at 210. Second, the court must determine
whether the factual matters averred are sufficient to show that plaintiff has a “plausible
claim for relief.” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The
complaint need not include “detailed factual allegations.” Phillips v. County of Allegheny,
515 F. 3d 224, 231 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
Moreover, the court must construe the alleged facts, and draw all inferences
gleaned therefrom, in the light most favorable to the non-moving party. See id. at 228
(citing Worldcom, Inc. v. Graphnet, Inc., 343 F. 3d 651, 653 (3d Cir. 2003)). However, “legal
conclusions” and “[t]hreadbare recitals of the elements of a cause of action . . . do not
suffice.” Iqbal, 556 U.S. at 678. Rather, the complaint must present sufficient “factual
4
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Sheridan v. NGK Metals Corp., 609 F. 3d 239, 263 n.27 (3d Cir.
2010) (quoting Iqbal, 556 U.S. at 678).
Ultimately, whether a plaintiff has shown a “plausible claim for relief” is a
“context specific” inquiry that requires the district court to “draw on its judicial
experience and common sense.”
Iqbal, 556 U.S. at 679.
The relevant record under
consideration includes the complaint and any “document integral or explicitly relied on in
the complaint.” U.S. Express Lines, Ltd. v. Higgins, 281 F. 3d 383, 388 (3d Cir. 2002) (citing
In re Burlington Coat Factory Sec. Litig., 114 F. 3d 1410, 1426 (3d Cir. 1997)). If a complaint
is vulnerable to dismissal pursuant to Rule 12(b)(6), the district court must permit a
curative amendment, irrespective of whether a plaintiff seeks leave to amend, unless such
amendment would be inequitable or futile. Phillips, 515 F. 3d at 236; see also Shane v.
Fauver, 213 F. 3d 113, 115 (3d Cir. 2000).
V.
Discussion
The Corrections Defendants have filed a motion to dismiss the complaint, arguing
that Plaintiffs have failed to state a cognizable Eighth Amendment claim arising from
Palakovic’s suicide, that Plaintiffs have failed to sufficiently allege the personal
involvement of several of the Corrections Defendants in the underlying constitutional
violations, that Plaintiffs’ ADA claim against the Corrections Defendants in their
individual capacities is not cognizable as a matter of law, and that Plaintiffs’ state law
claims for wrongful death and survivorship are barred by sovereign immunity.
5
In
response, Plaintiffs “concede that Counts Four and Five are appropriately dismissed
against all [Corrections] Defendants except Dr. Harrington.” (ECF No. 17 at 1). However,
Plaintiffs argue that the complaint states cognizable Eighth Amendment conditions of
confinement and mental health claims against each of the Corrections Defendants, that
Plaintiffs’ ADA claim is properly asserted against the Corrections Defendants in their
official capacities, and that Plaintiffs’ state law claims against Dr. Harrington are not
barred by sovereign immunity.
The Mental Health Defendants have also filed a motion to dismiss the complaint,
arguing that Plaintiffs have failed to establish that Defendants acted with deliberate
indifference to support Plaintiffs’ Eighth and Fourteenth Amendment claims, that
Plaintiffs have failed to allege a cognizable discrimination claim under the ADA, and that
the facts alleged in the complaint do not support a claim for punitive damages. Plaintiffs
concede that Count III should be dismissed as to the Mental Health Defendants, MHM,
Inc., and Dr. Rathore. (ECF No. 18 at 1).2 However, Plaintiffs contend that the complaint
adequately alleges facts supporting cognizable Eighth Amendment claims for deliberate
indifference to conditions of confinement and serious medical needs, and that the
complaint adequately alleges facts supporting a claim for punitive damages.
As Plaintiffs explain, the Mental Health Defendants “are not subject to liability under the [ADA],
as courts have held that as private contractors they do not meet the ‘public entity’ requirement of
Title II.” (ECF No. 18 at 14; see also ECF No. 13 at 6-7).
2
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A. Counts I and II – Eighth and Fourteenth Amendment Claims
In Counts I and II of the complaint, Plaintiffs allege violations of Palakovic’s
Eighth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. “To state a claim
under § 1983, a plaintiff must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged deprivation was committed
by a person acting under color of state law.” Tatsch-Corbin v. Feathers, 561 F. Supp. 2d 538,
543 (W.D. Pa. 2008) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
The Eighth Amendment prohibits the infliction of cruel and unusual punishment.
To state a claim under the Eighth Amendment, Plaintiffs must establish that Defendants
acted with deliberate indifference to Palakovic. See Tatsch-Corbin, 561 F. Supp. 2d at 543.
In the context of prison suicide cases, “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 Cnty., 348 F. App’x 756, 759 (3d Cir. 2009) (quoting Colburn v. Upper Darby Twp.,
838 F. 2d 663, 669 (3d Cir. 1988)); see also Clentscale v. Beard, No. 3:07-cv-307, 2008 WL
3539664, at *2 (W.D. Pa. Aug. 13, 2008). The Supreme Court has instructed that deliberate
indifference occurs when a prison official “knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
This Court has previously summarized the deliberate indifference standard in
prison suicide cases as follows:
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“[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 officer or 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 Township,
946 F. 2d 1017, 1023 (3d Cir. 1991). In order to establish liability, Plaintiffs
must prove that [Defendants] “[knew] of and disregard[ed] an excessive
risk to the inmate’s health or safety.” Natale v. Camden County Correctional
Facility, 318 F. 3d 575, 582 (3d Cir. 2003) (citing Farmer v. Brennan, 511 U.S.
825, 837 (1994)). Plaintiffs must show that [Defendants were] “aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exist[ed], and [that she drew] the inference.” Natale, 318 F.
3d at 582; Farmer, 511 U.S. at 837. A factfinder may determine the actor’s
knowledge through “circumstantial evidence” or “may conclude that [an
actor] knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842.
Tatsch-Corbin, 561 F. Supp. 2d at 543-44.
Plaintiffs have asserted two distinct, though related, claims under the Eighth and
Fourteenth Amendments.
First, Plaintiffs assert a claim alleging a “conditions of
confinement” claim. Second, Plaintiffs assert a claim alleging deliberate indifference to a
serious medical need. Both claims are premised on allegations that SCI Cresson treated
mentally ill prisoners, including Palakovic, with deliberate indifference by “warehousing”
them in solitary confinement housing units. The legal principles set forth above apply to
both of these claims. The Court will separately evaluate each claim under this Circuit’s
deliberate indifference test, as stated above.
1. Count I – Conditions of Confinement
In Count I (ECF No. 1 ¶¶ 139, 140), Plaintiffs allege that Defendants violated
Palakovic’s constitutional right to be free from cruel and unusual punishment by placing
him in conditions of solitary confinement, which are “known to cause harm to
8
psychologically vulnerable individuals.”
Plaintiffs contend that Defendants were
deliberately indifferent by placing Palakovic in solitary confinement, given his mental
health vulnerabilities, which deprived him of basic human needs of environmental
stimulation, social interaction, mental health, and physical health.
To begin, this Court notes that this case involves a prison suicide and that the
“vulnerability to suicide” standard used by courts in this Circuit applies to Plaintiffs’
allegations. Plaintiffs argue that the vulnerability to suicide standard is inapplicable to
this case. (See ECF No. 17 at 12-14). The Court disagrees. The ultimate harm alleged by
Plaintiffs is Palakovic’s death by suicide, which Plaintiffs allege was caused by
Defendants’ deliberate indifference. Thus, the vulnerability to suicide standard provides
the necessary framework for evaluating Plaintiffs’ claims.
Nevertheless, even if the
vulnerability to suicide standard were inapplicable to either of Plaintiffs’ two Eighth
Amendment claims, the result would be the same. For the reasons explained below,
Plaintiffs have failed to allege sufficient facts to plausibly establish that Defendants were
deliberately indifferent to Palakovic’s conditions of confinement or his serious medical
needs in relationship to his mental health issues.
As detailed above, the law concerning the standard of liability to be applied in
prison suicide cases is well-settled in this Circuit. Importantly, the Third Circuit has held
[I]f [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. Thus, 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 officer or officers knew or should have known
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of that vulnerability, and (3) those officers acted with reckless
indifference to the detainee’s particular vulnerability.
Colburn, 946 F. 2d at 1023 (citations and quotations omitted). Here, Plaintiffs have not
alleged facts sufficient to establish any of these elements to state a plausible claim for
relief.
First, Plaintiffs have not alleged facts showing that Palakovic had a particular
vulnerability to suicide. The Third Circuit has explained that a particular vulnerability to
suicide means that “there must be a strong likelihood, rather than a mere possibility, that
self-inflicted harm will occur.” Woloszyn v. County of Lawrence, 396 F. 3d 314, 320 (3d Cir.
2005); see also Estate of Puza v. Carbon Cnty., 586 F. Supp. 2d 271, 277 (M.D. Pa. 2007).
Plaintiffs’ complaint is devoid of any factual allegations that there was a strong likelihood
that self-inflicted harm would occur. The only allegations in the complaint that relate to
Palakovic’s vulnerability to suicide are that Palakovic was taking an anti-depressant that
had as a side effect suicidal thoughts and that a DOJ Report published a year after his
death concluded that he had a history of self-harm and suicide attempts:
[Palakovic] was prescribed the anti-depressant Celexa while at SCI
Cresson.
According to clinical studies, suicidal thoughts and impulses are some of
Celexa’s side effects.
[Palakovic] had “a history of self-harm and suicide attempts . . .”
(ECF No. 1 ¶¶ 27, 28, 37). However, these allegations are insufficient to establish a strong
likelihood that Palakovic would inflict self-harm. See, e.g., Litz v. City of Allentown, 896 F.
Supp. 1401, 1410 (E.D. Pa. 1995) (collecting cases discussing allegations that are sufficient
to establish a vulnerability to suicide).
10
Likewise, Plaintiffs have not alleged facts showing that Defendants knew or
should have known about Palakovic’s particular vulnerability to suicide. Knowledge of
an inmate’s particular vulnerability to suicide can be established through psychiatric
history—“Custodians have been found to ‘know’ of a particular vulnerability to suicide
when they have had actual knowledge of an obviously serious suicide threat, a history of
suicide attempts, or a psychiatric diagnosis identifying suicidal propensities.” Colburn,
946 F. 2d at 1025; Tatsch-Corbin, 561 F. Supp. 2d at 544. Importantly, the complaint is
devoid of any allegations that Defendants in this case had any knowledge of Palakovic’s
vulnerability to suicide. While the complaint cites to a DOJ Report that states Palakovic
had “a history of self-harm and suicide attempts,” there are no allegations that any of the
Defendants knew of this history of self-harm or suicide attempts at the time that
Palakovic was incarcerated at SCI Cresson. The complaint does not allege that Palakovic
attempted suicide or expressed a desire to commit suicide while a prisoner. Likewise,
while the complaint alleges that Palakovic had a history of mental illness, had been
diagnosed with various mental disorders, and had been placed on the prison’s mental
health roster and was receiving treatment,3 the complaint does not allege that any of
Palakovic’s mental illnesses or diagnosis were accompanied by suicidal propensities.
3
Specifically, the complaint alleges:
[Palakovic] had a history of mental health issues as a child. He had been
institutionalized for mental health reasons on four occasions since age 11.
While incarcerated at SCI Cresson, [Palakovic] was on the mental health roster,
indicating that he had a need for mental health care.
[Palakovic] was prescribed the anti-depressant Celexa while at SCI Cresson.
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Finally, the complaint fails to allege facts showing that Defendants were
deliberately indifferent to that vulnerability. Deliberate indifference in the prison suicide
context requires that Defendants “knew of a strong likelihood of suicide and disregarded
that risk by failing to take reasonable measures to address it.” Estate of Puza, 586 F. Supp.
2d at 277.
Analysis of this factor requires a subjective examination rather than an
objective one. Id. In other words, “the court must examine what the prison officials were
actually aware of as opposed to what they should have been aware of.” Id., at 277-78
(citing Woloszyn, 396 F. 3d at 321). A complaint may allege that a defendant has exhibited
deliberate indifference to a prisoner’s vulnerability for suicide in one of several ways. For
example, a defendant might have taken affirmative action directly leading to the
prisoner’s suicide. Allegations of such direct action are sufficient to withstand dismissal.
See Freedman v. City of Allentown, Pa., 853 F. 2d 1111, 1115 (3d Cir. 1988). Likewise, a
complaint will withstand a Rule 12(b)(6) challenge where it alleges that a defendant
actually knew of the suicidal tendencies of a particular prisoner and ignored the
responsibility to take reasonable precautions. Id. Finally, “when the factual scenario
presented by plaintiff suggests that defendants should have known that the prisoner was
a suicide risk, and failed to take necessary and available precautions to protect the
prisoner from self-inflicted wounds, the complaint will survive dismissal.” Id. Here,
Plaintiffs have failed to allege facts showing any of these scenarios.
According to clinical studies, suicidal thoughts and impulses are some of
Celexa’s side effects.
(ECF No. 1 ¶¶ 25, 26, 27, 28).
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In sum, the complaint is devoid of any allegations to plausibly establish that
Palakovic had a particular vulnerability to suicide or that Defendants knew or should
have known about Palakovic’s vulnerability to suicide. The allegations in the complaint
that Defendants knew that Palakovic was on an anti-depressant, that he had a history of
mental illness, and that he was receiving mental health care at the prison are not sufficient
to establish that Defendants were aware of any risk of suicide. Similarly, the allegation in
paragraph 37 that Palakovic had “a history of self-harm or suicide attempts” is a
conclusion from a Department of Justice Report published nearly one year after
Palakovic’s death. But, despite this alleged report,4 nowhere do Plaintiffs allege that any
of the Defendants had any knowledge of Palakovic’s history of suicide attempts or
suicidal thoughts. There are no allegations in the complaint that Palakovic attempted
suicide while at the prison or made his suicidal thoughts or tendencies known to
Defendants. While the Department of Justice might have made a finding that Palakovic
had a history of suicide attempts, that allegation is insufficient to establish that the
Defendants themselves knew of and disregarded the risk of suicide. Woloszyn v. Cnty. of
Lawrence, 396 F. 3d 314, 320 (3d Cir. 2005) (“Even where a strong likelihood of suicide
exists, it must be shown that the custodial officials ‘knew or should have known’ of that
strong likelihood.”) (quoting Colburn v. Upper Darby Township, 946 F. 2d 1017, 1024 (3d
Cir. 1991)). There are simply no facts in the complaint alleging that Defendants knew of
or should have known of the strong likelihood that Palakovic would commit suicide.
The DOJ Report, while referenced in the complaint, has not been made part of the record before
the Court. Additionally, Defendants argue that it is not appropriate for this Court’s consideration
on the instant motions to dismiss.
4
13
Likewise, there are no allegations that Palakovic had any suicidal thoughts as a
side effect of the anti-depressant that he was taking. Instead, the only averments linking
Defendants to Palakovic’s suicide are allegations that Defendants placed Palakovic in
solitary confinement, despite knowing that he had mental health issues and knowing that
conditions of solitary confinement exacerbate mental health issues which could lead to
self-harm or suicide. (ECF No. 1 ¶¶ 23, 24, 29, 30). For example, Plaintiffs allege that
Defendants were aware that placing a mentally ill prisoner in solitary confinement may
“cause severe psychological harm, exacerbate pre-existing mental health problems, and
generated the majority of suicides, suicide attempts, and acts of self-harm.” (ECF No. 1 ¶
23). However, this allegation is insufficient under the vulnerability to suicide standard to
state a plausible claim for relief.
Plaintiffs simply have not alleged facts showing that any of the Defendants knew
about Palakovic’s particular vulnerability to suicide. Plaintiffs’ generalized allegations
concerning mentally ill prisoners placed in solitary confinement are insufficient to state a
plausible claim for relief under the Eighth Amendment.
Accordingly, Defendants’
motions to dismiss Count I will be granted.
2. Count II – Deliberate Indifference to Serious Medical Needs
In Count II of the complaint (ECF No. 1 ¶¶ 141, 142), Plaintiffs allege that
Defendants violated Palakovic’s Eighth and Fourteenth Amendment rights through their
deliberate indifference to his serious medical need for mental health care.
“[I]n the
context of Eighth Amendment claims based on medical care, a plaintiff must demonstrate
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deliberate indifference to a serious medical need.” Baker v. Younkin, 529 F. App’x 114, 115
(3d Cir. 2013). “Prison officials violate the Eighth Amendment’s proscription of cruel and
unusual punishment when they exhibit ‘deliberate indifference to serious medical needs
of prisoners.’” Colburn v. Upper Darby Twp., 946 F. 2d 1017, 1023 (3d Cir. 1991) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “To act with deliberate indifference to serious
medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v.
Kearney, 571 F. 3d 318, 330 (3d Cir. 2009). The deliberate indifference standard in this
context is two-pronged: “‘[i]t requires deliberate indifference on the part of the prison
officials and it requires the prisoner’s medical needs to be serious.’”
Scherer v.
Pennsylvania Dep’t of Corr., No. 3:04-cv-191, 2007 WL 4111412, at *12 (W.D. Pa. Nov. 16,
2007) (quoting Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F. 2d 326,
346 (3d Cir. 1987)). A “serious medical need” is one “that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a lay person would easily
recognize the necessity for a doctor’s attention. A medical need is also serious where the
denial of treatment would result in the ‘unnecessary and wanton infliction of pain,’ or ‘a
life-long handicap or permanent loss.’” Atkinson v. Taylor, 316 F. 3d 257, 272–73 (3d Cir.
2003) (citations omitted). The Third Circuit has recognized that a “particular vulnerability
to suicide” represents a “serious medical need.” Colburn, 946 F. 2d at 1023.
A prison official displays deliberate indifference when he (1) knows of a prisoner’s
need for medical treatment yet refuses to administer it; (2) delays medically necessary
treatment for non-medical reasons; or (3) prevents a prisoner from receiving needed or
recommended treatment. May v. Cash, No. 3:13-cv-00069, 2014 WL 295717, at *6 (W.D. Pa.
15
Jan. 23, 2014); see also Rouse v. Plantier, 182 F. 3d 192, 197 (3d Cir. 1999)). Stated another
way, the inquiry is whether the defendant in question displayed an “obduracy and
wantonness” that demonstrates a recklessness or a conscious disregard of a serious risk to
the prisoner’s health and safety. See Rouse, 182 F. 3d at 197 (citing Whitley v. Alders, 475
U.S. 312, 319 (1986) and Farmer v. Brennan, 511 U.S. 825, 842 (1994)). Demonstrating mere
negligence or even professional malpractice does not on its own amount to deliberate
indifference that would sustain an Eighth Amendment claim. Spruill v. Gillis, 372 F. 3d
218, 235 (3d Cir. 2004).
Here, Plaintiffs have not alleged sufficient facts in their complaint to establish a
plausible claim for relief under the Eighth and Fourteenth Amendment of deliberate
indifference to Palakovic’s serious medical need for mental health care. Initially, the
Court notes that, as explained above, the complaint has not alleged that Palakovic had a
particular vulnerability to suicide.
Additionally, the complaint does not allege facts
showing that Defendants were deliberately indifferent to Palakovic’s serious medical
needs related to his mental health treatment at the prison.
The complaint describes
Palakovic’s mental health treatment at SCI Cresson as follows:
[Palakovic] had a history of mental health issues as a child. He had been
institutionalized for mental health reasons on four occasions since age 11.
He had been given [numerous] diagnoses during his childhood.
While incarcerated at SCI Cresson, [Palakovic] was on the mental health
roster, indicating that he had a need for mental health care.
[Palakovic] was prescribed the anti-depressant Celexa while at SCI
Cresson.
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[Palakovic] experienced decompenation during his times in solitary
confinement, as he was unable to cope with the conditions in the RHU
due to his mental health needs, causing psychological deterioration.
Less than two weeks before his death, [Palakovic] requested one-on-one
counseling with a psychiatrist. The psychiatrist ignored [Palakovic’s]
request and did not provide [Palakovic] with any treatment.
Psychology staff visited [Palakovic] in December of 2011 and May of
2012. He was ordered for a June psychiatric visit, but this visit did not
occur until 11 days before his suicide on July 16.
[Palakovic] also expressed concern that his medications were not
working.
The level of mental health care provided to [Palakovic] was grossly
deficient, manifesting a deliberate indifference to his serious medical
need for mental health care. Interviews in clinically appropriate settings
were inadequate or non-existent.
Mental health staff only provided [Palakovic] with medication for his
mental health needs, refusing other forms of necessary treatment.
(ECF No. 1 ¶¶ 25, 26, 27, 38-43). These allegations demonstrate that Palakovic had a
serious medical need. The facts in the complaint show that Palakovic had significant
mental health issues, for which the prison was required to provide adequate treatment
and care.
However, the complaint’s allegations fail to show that Defendants were
deliberately indifferent to Palakovic’s serious medical needs.
Indeed, Palakovic was
placed on the prison’s mental health roster, he was prescribed medication, and he was
visited by mental health staff.
While the complaint alleges that Palakovic’s request for
one-on-one counseling was ignored, the complaint avers that he had a psychiatrist visit
just 11 days prior to his death. Likewise, while the complaint avers that the health care
provided to Palakovic was “grossly deficient, manifesting a deliberate indifference to his
serious medical need,” the complaint fails to allege any facts beyond these legal
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conclusions and threadbare recitals of the elements to plausibly establish the cause of
action asserted.
The test for evaluating a claim that a prison failed to provide adequate medical
treatment in violation of the Eighth Amendment “affords considerable latitude to prison
medical authorities in the diagnosis and treatment of the medical problems of inmate
patients.”
Inmates of Allegheny Cnty. Jail v. Pierce, 612 F. 2d 754, 762 (3d Cir. 1979).
“[A]llegations amounting only to malpractice or mere negligence have consistently been
held not to raise issues of constitutional import.” Litz v. City of Allentown, 896 F. Supp.
1401, 1409 (E.D. Pa. 1995).
Indeed, “[w]here the plaintiff has received some care,
inadequacy or impropriety of the care that was given will not support an Eighth
Amendment claim.”
Dimitris v. Lancaster Cnty. Prison Bd., No. 00-cv-3739, 2002 WL
32348283, at *6 (E.D. Pa. June 7, 2002) (quoting Norris v. Frame, 585 F. 2d 1183, 1186 (3d Cir.
1978)); see also McClain v. Kale, No. 1:10-cv-0035, 2013 WL 5272816, at *9 (M.D. Pa. Sept. 17,
2013) (“deliberate indifference is generally not found when some significant level of
medical care has been offered to the inmate”).
Plaintiffs’ allegations simply fail to
plausibly establish that Defendants engaged in deliberate indifference to a serious medical
need. In fact, the complaint establishes that Palakovic was on the mental health roster, he
was being treated with medication for his diagnosed mental illnesses, and he was
receiving visits from the prisons mental health staff.
Accordingly, because Plaintiffs have failed to establish a plausible claim for relief
under the Eighth Amendment, the Court will grant Defendants’ motions to dismiss Count
II of the complaint.
18
B. Count III – Discrimination on the Basis of Disability
In Count III of the complaint (ECF No. 1 ¶¶ 143-145), Plaintiffs allege that
Defendants violated Palakovic’s rights under the ADA by denying him access to services,
programs, and activities available at SCI Cresson because of his serious mental illness.
Plaintiffs aver that Defendants refused to “make a reasonable accommodation that would
enable [Palakovic] to have access to services, programs, and activities available to
prisoners without serious mental illness.” (Id. ¶ 145). As an initial matter, Plaintiffs
concede that Count III should be dismissed as to Defendants Dr. Rathore and MHM, Inc.
(See ECF No. 18 at 1, 14). As such, the Court will dismiss Count III as to the Mental
Health Defendants, Dr. Rathore and MHM, Inc., with prejudice.
The Corrections Defendants argue that an ADA claim is not cognizable against the
Corrections Defendants in their personal capacities. (See ECF No. 11 at 7). The law is well
settled that individuals, sued in their official capacities, are not “public entities” under the
ADA and are not subject to liability under Title II of the ADA. See, e.g., Emerson v. Thiel
College, 296 F. 3d 184, 189 (3d Cir. 2002) (individuals are not subject to liability under Titles
I or II of the ADA); O’Donnell v. Pennsylvania Dep’t of Corr., 790 F. Supp. 2d 289, 308 (M.D.
Pa. 2011). Accordingly, Plaintiffs’ ADA claim against the Defendants in their individual
capacities is barred as a matter of law and will be dismissed. However, Plaintiffs argue
that the ADA claims are properly asserted against the Defendants in their official
capacities.
Title II of the ADA provides, in relevant part, that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
19
denied the benefits of the services or activities of a public entity or be subjected to
discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to services,
programs, and activities provided within correctional institutions.
See Chisolm v.
McManimon, 275 F. 3d 315, 325 (3d Cir. 2001) (citing Pennsylvania Dept. of Corrections v.
Yeskey, 524 U.S. 206 (1998)). To state a claim for relief under Title II of the ADA, a plaintiff
must allege that (1) he is a qualified individual, (2) with a disability, and (3) he was
excluded from participation in or denied the benefits of the services, programs, or
activities of a public entity, or was subjected to discrimination by any such entity, (4) by
reason of his disability. Johnson v. Inglebread, No. 13-cv-262, 2013 WL 3830504, at *4 (W.D.
Pa. July 24, 2013). The Court will focus its analysis on the third and fourth elements.
In the complaint, Plaintiffs allege that “[p]lacing [Palakovic] in the RHU deprived
him of access to services, program opportunities, and other activities accorded to general
population prisoners.” (ECF No. 1 ¶¶ 49, 76-81). Further, the complaint alleges that
Defendants placed Palakovic “in solitary confinement in the RHU on account of his
serious mental illness.” (Id. ¶ 70). Such allegations fail to state a plausible claim that
Palakovic was excluded from participation in a service, program, or activity of the prison
by reason of his disability in violation of Title II of the ADA. Plaintiffs do not allege what
“services, program opportunities, and other activities” Palakovic was deprived of.
Similarly, the complaint contains no factual averments concerning how Palakovic’s
placement in the RHU was in any way related to his disability. Instead, the complaint
simply alleges that Palakovic “spent multiple 30-day stings in solitary confinement in the
RHU” and that “[f]our days before his death, [Palakovic] was again placed in solitary
20
confinement for a minor rules violation that was eligible for information resolution
instead of disciplinary time.” (Id. ¶¶ 29, 45).5 This Court has previously considered
identical allegations to those advanced in the complaint sub judice:
The fact that a prisoner possesses a qualifying disability of mental illness
under the ADA . . . does not mean that any discipline imposed upon him
must be a measured imposition of discipline in light of his disability.
This is because the discipline of RHU housing imposed on the Decedent
does not equate with denying benefits to the Decedent. See Atkins v.
County of Orange, 251 F. Supp. 2d 1225, 1231-1232 (S.D. N.Y. 2003) (finding
that placement of mentally ill inmates within “keeplock isolation” did not
equate to a denial of services under the ADA in the absence of an
allegation of such denial; mentally ill inmates were not disparately
treated from other inmates who were also a “danger to [themselves] or
others”). . . . [T]he placement of Decedent in the RHU did not result
from the hearing officer’s discrimination against prisoners with mental
illness, rather, it resulted from the “misconduct.” . . . Any implication in
[the complaint] that the Decedent could not be disciplined by being
placed in the RHU because it would be detrimental to his mental health
and thus violative of the ADA . . . is not denial of a service or program
under such statutes. The Court understands that the Plaintiff’s claim
under the ADA . . . relates to the proper treatment of the Decedent
through the services and programs made available to him in light of his
disability. The Court does not believe the ADA . . . requires housing of
disabled inmates in a certain level of confinement, a certain institution, or
a certain security level as such assignments are primarily matters of
security delegated to the discretion of the individual state correctional
departments.
Scherer v. Pennsylvania Dep’t of Corr., No. 3:2004-cv-191, 2007 WL 4111412, at *9 (W.D. Pa.
Nov. 16, 2007). In sum, Plaintiffs have failed to allege facts showing that Defendants
somehow discriminated against Palakovic on the basis of a disability when they placed
The complaint also alleges that “Defendants John Does 1 and 2 failed to take into account the
extent that Brandon’s behavior was the consequence of serious mental illness.” (ECF No. 1 ¶ 48).
However, this allegation is not made against the other Defendants in the case. Furthermore, the
complaint does not allege how Palakovic’s behavior resulting in disciplinary action was in any way
related to his serious mental illness.
5
21
him in the RHU for disciplinary reasons. See West v. Varano, No. 1:10-cv-2637, 2013 WL
4607427, at *9 (M.D. Pa. Aug. 29, 2013); Green v. Coleman, No. 2:13-cv-00008, 2013 WL
6185172, at *8 (W.D. Pa. Nov. 26, 2013) aff’d, 575 F. App’x 44 (3d Cir. 2014) (dismissing
prisoner’s ADA claim where there were no specific allegations that plaintiff was being
denied access to any benefits, programs, or activities due to any disability). Accordingly,
Plaintiffs’ ADA claim against the Defendants will be dismissed.
C. Counts IV and V – State Law Claims for Wrongful Death and Survivorship
In Count IV of the complaint (ECF No. 1 ¶¶ 146-151), Plaintiffs assert a claim for
wrongful death pursuant to 42 Pa.C.S. § 8301 against all of the Defendants. In Count V of
the complaint (ECF No. 1 ¶¶ 152-154), Plaintiffs assert a survival action pursuant to 20
Pa.C.S. § 3373 and 42 Pa.C.S. § 8302 against all of the Defendants. The Corrections
Defendants have moved to dismiss both of these state law claims arguing that both claims
are barred by sovereign immunity and that Plaintiffs have failed to state a cognizable
claim under the relevant statutes. (ECF No. 11 at 8-11).
As an initial matter, Plaintiffs concede that Counts IV and V should be dismissed
as to the following Corrections Defendants:
John Wetzel, Kenneth Cameron, Jamie
Boyles, Jamey Luther, Michelle Houser, Morris Houser, and Francis Pirozzola. (See ECF
No. 17 at 1, 17). As such, the Court will dismiss Counts IV and V as to these Department
of Corrections Defendants, with prejudice.
Nevertheless, Plaintiffs argue that the
wrongful death and survivor claims against Dr. Harrington, and the Mental Health
22
Defendants—MHM, Inc., and Dr. Rathore—are not barred by sovereign immunity. (See
ECF No. 17 at 17). The Court need not decide this issue.
Plaintiffs’ wrongful death claim and survival action “cannot be brought . . . as
claims in-and-of themselves, because an underlying claim . . . is needed for these claims to
be cognizant.”
Salvio v. Amgen, Inc., 810 F. Supp. 2d 745, 757 (W.D. Pa. 2011).
Accordingly, because the Court dismisses the underlying civil rights claims (Counts I–III),
the Court will also grant Defendants’ motions to dismiss Plaintiffs’ wrongful death claim
and survival action, without prejudice, dependent on Plaintiffs’ ability to sufficiently
plead their underlying constitutional claims in an amended complaint. See id.
D. Leave to Amend
The law is well settled that, “if a complaint is subject to a Rule 12(b)(6) dismissal, a
district court must permit a curative amendment unless such an amendment would be
inequitable or futile.” Phillips v. County of Allegheny, 515 F. 3d 224, 245 (3d Cir. 2008).
Likewise, Federal Rule of Civil Procedure 15 embodies a liberal approach to amendment
and directs that “leave shall be freely given when justice so requires” unless other factors
weigh against such relief. Dole v. Arco Chemical Co., 921 F. 2d 484, 486–87 (3d Cir. 1990).
Factors that weigh against amendment include “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Amendment is futile
“if the amended complaint would not survive a motion to dismiss for failure to state a
23
claim upon which relief could be granted.” Alvin v. Suzuki, 227 F. 3d 107, 121 (3d Cir.
2000).
A district court may therefore “properly deny leave to amend where the
amendment would not withstand a motion to dismiss.” Centifanti v. Nix, 865 F. 2d 1422,
1431 (3d Cir. 1989); Davis v. Holder, 994 F. Supp. 2d 719, 727 (W.D. Pa. 2014). In light of
these legal principles favoring the opportunity to amend a deficiently pleaded complaint,
the Court will grant Plaintiffs leave to amend.
VI.
Conclusion
For the reasons stated above, the Court will grant Defendants’ motions to dismiss
Plaintiffs’ complaint, but will grant Plaintiffs leave to amend their complaint.
An appropriate order follows.
24
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RENEE and DARIAN PALAKOVIC,
as Administrators of the Estate of
BRANDON PALAKOVIC,
)
)
)
)
Plaintiffs,
CIVIL ACTION NO. 3:14-145
)
)
v.
JUDGE KIM R. GIBSON
)
)
JOHN WETZEL, KENNETH CAMERON,
JAMIE BOYLES, JAMEY LUTHER,
JAMES HARRINGTON, DR. RATHORE,
MICHELLE HOUSER, MORRIS
HOUSER, FRANCIS PIROZZOLA,
JOHN DOE #1, #2, JOHN DOES #3-6,
MHM, INC.,
)
)
)
)
)
)
)
)
Defendants.
)
ORDER
AND NOW, this 26th day of June 2015, upon consideration of the Defendants'
motions to dismiss (ECF No. 9, 10), and for the reasons set forth in the accompanying
memorandum,
IT IS HEREBY ORDERED that Defendants' motions are GRANTED and
Plaintiffs' complaint (ECF No. 1) is dismissed as follows:
(1) Count I of the complaint is dismissed as to all Defendants with leave to
amend.
(2) Count II of the complaint is dismissed as to all Defendants with leave to
amend.
(3) Count III of the complaint is dismissed as to Dr. Rathore and MHM, Inc.,
without leave to amend. Count III of the complaint is dismissed as to the
remaining Defendants, in their official capacities, with leave to amend.
(4) Count IV of the complaint is dismissed as to Defendants John Wetzel, Kenneth
Cameron, Jamie Boyles, Jamey Luther, Michelle Houser, Morris Houser, and
Francis Pirozzola, without leave to amend.
Count IV of the complaint is
dismissed as to Defendants James Harrington, Dr. Rathore, and MHM, Inc.,
with leave to amend.
(5) Count V of the complaint is dismissed as to Defendants John Wetzel, Kenneth
Cameron, Jamie Boyles, Jamey Luther, Michelle Houser, Morris Houser, and
Francis Pirozzola, without leave to amend.
Count V of the complaint is
dismissed as to Defendants James Harrington, Dr. Rathore, and MHM, Inc.,
with leave to amend.
IT IS FURTHER ORDERED that Plaintiffs are granted 21 days from the date of
this order to file an amended complaint.
BY THE COURT:
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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