ESTATE OF SHAWN MORCHO v. YEADON BOROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTATE OF SHAWN MORCHO, BY : CIVIL ACTION

AND THROUGH YAHMAE CARSON :

AND ASONGWED GEORGE MORCHO, : NO. 22-3245

AS ADMINISTRATORS OF THE :

ESTATE OF SHAWN MORCHO :

Plaintiff :

:

v. :

:

YEADON BOROUGH, et al. :

Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. January 2, 2024

MEMORANDUM OPINION

INTRODUCTION

This civil action arises out of the tragic suicide of Shawn Morcho (“Shawn”), who took his

own life while a pretrial detainee at the Yeadon Borough jail. Plaintiffs Yahmae Carson and

Asongwed George Morcho, Shawn’s parents and co-administrators of Shawn’s Estate

(“Plaintiffs”), filed this action against the Yeadon Borough and several officers/employees of the

Yeadon Borough Police Department (collectively, “Defendants”),1 under 42 U.S.C. § 1983 for the

violation of Shawn’s substantive due process rights.

Before this Court is Defendants’ motion to dismiss filed pursuant to Federal Rule of Civil

Procedure 12(b)(6), in which Defendants seek dismissal of the bulk of Plaintiffs’ claims on the

basis that Plaintiffs have not alleged facts sufficient to meet their pleading burden as to each

defendant on each claim. Plaintiffs oppose the motion. The issues raised in the motion have been

1 Defendants included the following: Yeadon Borough, Yeadon Borough Police Department, Chief

of Police Shawn Burns, Matt Barr, Fergie Ingram, Leah Cesanek, Joseph Houghton, Nichols Tokonitz,

Phillip Stephens, and Patricia Scheerle.

fully briefed and are ripe for disposition. For the reasons set forth, Defendants’ motion to dismiss

is granted, in part, and denied, in part.

BACKGROUND

When ruling on a motion to dismiss, this Court must accept as true all factual allegations

in a plaintiff’s operative complaint and construe the facts alleged in the light most favorable to the

plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (citing Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009)). The facts relevant to the underlying motion and alleged in the

third amended complaint are as follows:

On July 5, 2020, at approximately 11:48 a.m., Shawn’s

mother, Yahmae Carson (“Carson”), placed a 911 call requesting

that Shawn be taken to a rehabilitation facility for substance abuse

and mental health issues. Defendants Matt Barr, Nicholas

Tokonitz, and Phillip Stephens (collectively, the “Responding

Officers”) responded to the call knowing that they were responding

to a domestic disturbance and that Shawn was allegedly

intoxicated. Notes from the 911 call indicate that Shawn was on

drugs, acting irrationally, and needed to be removed from the

apartment and taken to the Recovery Centers of America, a

rehabilitation facility. At approximately 11:55 a.m., Defendant

Barr arrived at Carson and Shawn’s shared residence. Shortly

thereafter, Defendants Stephens and Tokonitz arrived at the

residence.

Upon the Responding Officers’ arrival at the residence,

Carson told the Responding Officers that Shawn needed help, was

in distress, had been taking drugs, was acting irrationally and

inappropriately, and was suffering from a mental health crisis.

Carson requested that the Responding Officers take Shawn to the

Recovery Centers of America for emotional assistance and perhaps

substance abuse treatment. One or more of the Responding Officers

then entered the apartment and observed Shawn sitting next to a

large, full bag of marijuana and drinking a beer. Carson pleaded

with the Responding Officers to assist Shawn and to communicate

with her when Shawn arrived at Recovery Centers of America. She

also advised that she would meet Shawn at the rehabilitation center.

The Responding Officers told Carson that there was an

outstanding warrant for Shawn’s arrest. Pursuant to the warrant, the

Responding Officers arrested and handcuffed Shawn and took him

into police custody. Shawn asked the Responding Officers “if they

could leave his bag of weed at the apartment.” The Responding

Officers transported Shawn to the police station. While traveling to

the police station, Shawn exhibited irrational behavior, continually

asked for his “weed bag,” stated that he was going to exit the moving

vehicle, talked to himself, asked the officers to take him to work,

and stated that “if I get fired, I’m going to be way different.” Shawn

also asked Defendant Barr if he could have his marijuana returned

to him or if the police “could just take some and leave him the rest.”

At 12:10 p.m., Shawn entered the Yeadon Borough Police

Department under the custody and control of at least one of the

Responding Officers. One of the Responding Officers placed

Shawn into Cell #1, a holding cell equipped with a video monitoring

system that showed the individuals held in the cell. Despite the

presence of numerous police officers, detectives, and other

personnel at the police station, no one was monitoring the video

system or Shawn in his cell. Nonetheless, the video monitoring

system captured Shawn’s behavior inside the cell between 12:13

p.m. and 12:58 p.m.

As captured by the video monitoring system, at 12:13 p.m.,

Shawn was pacing and acting listless in his cell, and took off his

shirt and then put it back on. At 12:35 p.m., Shawn again removed

his shirt, placed it around his neck, climbed onto a bench, tied the

shirt to a bar in the ceiling, and hung himself. All these actions were

captured on the video monitoring system. At 12:58 p.m., Defendant

Barr checked on Shawn and discovered him hanging. Defendant

Barr attempted to render assistance. Paramedics arrived three

minutes later at 1:01 p.m. At 1:42 p.m., Shawn was pronounced

dead at Mercy Fitzgerald Hospital.

Plaintiffs allege that no one performed a mental health

screening, risk screening, self-harm screening, or other type of

safety screening on Shawn at any time during his detention at the

Yeadon Borough Police Department jail. Further, no one took any

action to reduce the risk of Shawn harming himself while in

detention, despite the Responding Officers’ knowledge of Shawn’s

mental state at the time of his arrest.

LEGAL STANDARD

Federal Rule of Civil Procedure (“Rule”) 12(b)(6) governs motions to dismiss for failure

to state a claim. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the court

“must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal

conclusions.” Fowler, 578 F.3d at 210–11. The court must determine “whether the facts alleged

in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at

211 (quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the

plaintiff’s entitlement to relief; it must “show such an entitlement with its facts.” Id. (internal

quotation marks and citation omitted). “[W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.

8(a)) (alterations in original). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Id. To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege

facts sufficient to “nudge[] their claims across the line from conceivable to plausible.” Twombly,

550 U.S. at 570.

DISCUSSION

Plaintiffs assert six separate federal and state law claims against the Individual Defendants

and Yeadon Borough premised on each Defendants’ alleged responsibility for Shawn’s suicide

death while a pretrial detainee at the Yeadon Borough prison. Defendants move to dismiss all but

Plaintiffs’ Fourteenth Amendment claim against Defendant Barr at Count I and the Monell claim

asserted against Yeadon Borough at Count II. Defendants’ arguments are addressed in turn.

Count I: Civil Rights Claims

Against All Individual Defendants

At Count I of the third amended complaint Plaintiffs assert claims against the Individual

Defendants pursuant to 42 U.S.C. § 1983 for the violation of Shawn’s Fourteenth Amendment due

process rights.2 Plaintiffs assert these claims under both the state-created danger theory and the

deliberate indifference theory. Defendants contend that all claims should be dismissed against all

the Individual Defendants except for the claim against Defendant Barr.

Section 1983 enables plaintiffs to bring civil actions against any person who, acting under

the color of state law, deprives another of rights, privileges, or immunities secured by the

Constitution and/or laws of the United States. 42 U.S.C. § 1983. The statute does not specifically

confer rights on individuals; rather, it serves as a vehicle “for vindicating federal rights elsewhere

conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989). Here, to establish a claim under

§ 1983, Plaintiffs must allege facts sufficient to plausibly show that the Individual Defendants,

acting under the color of state law, deprived Shawn of his rights secured by the Constitution or

other federal law. Robb v. City of Phila., 733 F.2d 286, 290-91 (3d Cir. 1984).

Plaintiffs assert that the Individual Defendants violated Shawn’s Fourteenth Amendment

due process rights when they took and/or failed to take various actions that ultimately resulted in

Shawn taking his own life while in pretrial custody. The Fourteenth Amendment provides that a

state shall not “deprive any person of life, liberty, or property without due process of law.” U.S.

Const. amend. XIV, § 1. However, the Constitution “cannot fairly be extended to impose an

affirmative obligation on the State to ensure that those interests do not come to harm through other

2 In response to Defendants’ motion, Plaintiffs concede that their § 1983 claims are only properly

asserted for violations of Shawn’s Fourteenth Amendment rights rather than his Eighth Amendment rights,

since he was a pretrial detainee. (See Pls.’ Opp., ECF 43, at p. 5). This Court agrees and will treat Plaintiffs’

claims as if asserted as such.

means,” such as, by the acts of other private individuals. DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 195 (1989). This is true even if governmental interference “may be

necessary to secure [those] interests.” Id. at 196. “If the Due Process Clause does not require the

State to provide its citizens with particular protective services, it follows that the State cannot be

held liable under the Clause for injuries that could have been averted had it chosen to provide

them.” Id. at 196-97. Generally, courts have recognized that the due process clause’s purpose is

to “protect people from the State, not to ensure that the State protected them from each other.” Id.

at 196; see also Morrow v. Balaski, 719 F.3d 160, 166 (3d Cir. 2013).

Interpreting DeShaney, the United States Court of Appeals for the Third Circuit (the “Third

Circuit”) found that it “stands for the harsh proposition that even though state officials know that

a person is in imminent danger of harm from a third party, the fourteenth amendment imposes

upon those state officials no obligation to prevent that harm.” Horton v. Flenory, 889 F.2d 454,

457 (3d Cir. 1989). Notwithstanding, the Third Circuit has held that a state may be liable for its

failure to protect citizens against private violence when the state (1) enters into a “special

relationship” with the individual plaintiff or (2) creates a danger which results in foreseeable injury

to a discrete plaintiff (the state-created danger exception). See Ye v. United States, 484 F.3d 634,

637 (3d Cir. 2007); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996). As such, the harsh

holding of DeShaney and its progeny “is limited . . . to situations in which the state is not involved

in the harm, either as a custodian or as an actor.” Horton, 889 F.2d at 457.

Ordinarily, the so-called “state-created danger” theory of liability is invoked and applied

in situations where the plaintiff (or other harmed individual) was not in the custody of or in a

special relationship with the state actors. Here, it is undisputed that Plaintiffs have alleged facts

to substantiate that Shawn was in the physical custody of the state at the time of his death.

Notwithstanding, Defendants have pointed to no authority, and this Court is unaware of any such

authority, that precludes a plaintiff from pursuing a § 1983 claim under the state-created danger

theory for harm suffered while in the physical custody of the state.3 Accordingly, this Court will

address Plaintiffs’ § 1983 claims against the Individual Defendants under both the state-created

danger theory and the deliberate indifference theory.

State-Created Danger Theory

To state a claim under the state-created danger theory, Plaintiffs must plead facts sufficient

to plausibly show:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the

conscience;

(3) a relationship between the state and the plaintiff existed such that

the plaintiff was a foreseeable victim of the defendant’s acts, or a

member of a discrete class of persons subjected to the potential harm

brought about by the state’s actions, as opposed to a member of the

public in general; and

(4) a state actor affirmatively used his or her authority in a way that

created a danger to the citizen or that rendered the citizen more

vulnerable to danger than had the state not acted at all.

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal citations and footnotes

omitted). Here, the Individual Defendants argue that Plaintiffs’ § 1983 claims against them fail

3 The Individual Defendants argue that the state-created danger theory is not applicable in a case

such as this where the harm was ultimately the result of a suicide. Courts in this circuit, however, have

considered § 1983 claims asserted under the state-created danger theory in cases where the harm was the

result of a suicide. See, e.g., Haberle v. Troxell, 885 F.3d 171, 176–78 (3d Cir. 2018) (considering § 1983

claim under state-created danger theory where harm caused by suicide); Sanford v. Stiles, 456 F.3d 298,

303-04 (3d Cir. 2006) (same); McDonald-Witherspoon v. City of Phila., 2017 WL 3675408, at *6 (E.D. Pa.

Aug. 25, 2017) (considering a § 1983 claim under both the state-created danger theory and deliberate

indifference theory where prisoner committed suicide); Dimitris v. Lancaster Cnty. Prison Bd., 2002 WL

32348283, at *9 (E.D. Pa. June 7, 2002) (same). Notably, despite arguing that Plaintiffs cannot assert their

§ 1983 claims under a state-created danger theory, Defendants spend the majority of their brief arguing that

Plaintiffs have not met their burden under the state-created danger theory.

under the state-created danger theory because Plaintiffs have not alleged the requisite affirmative

action required to satisfy the fourth element. This Court agrees.

The fourth element of the state-created danger exception requires a plaintiff to allege facts

to establish that state actors “used their authority to create an opportunity that otherwise would not

have existed.” Kneipp, 95 F.3d at 1208. To meet this requirement, Plaintiffs must allege facts

showing that each of the Individual Defendants: (1) exercised his/her authority; (2) took an

affirmative action; and (3) said affirmative action created a danger to Shawn or rendered him more

vulnerable to danger than had the Individual Defendants not acted at all. Ye, 484 F.3d at 639. “[I]t

is [the] misuse of state authority, rather than a failure to use it, that can violate the Due Process

Clause.” Bright, 443 F.3d at 282. In other words, “[l]iability under the state-created danger theory

is predicated upon the states’ affirmative acts which work to the plaintiffs’ detriments in terms of

exposure to danger.” D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d

Cir. 1992). To satisfy this fourth element, Plaintiffs must also allege facts to establish “a direct

causal relationship between the affirmative act of [each Individual Defendant] and [Shawn’s]

harm.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 432 (3d Cir. 2006) (explaining that “the fourth

element is satisfied where the state’s action was the ‘but for cause’ of the danger faced by the

plaintiff”).

In Morrow v. Balaski, the Third Circuit provided further guidance for distinguishing

“affirmative acts” from non-actionable “omissions” in the state-created danger context. 719 F.3d

160 (3d Cir. 2013). There, the plaintiffs alleged that school authorities permitted a criminally

adjudicated delinquent to return to school after serving a suspension for assaulting two fellow

students. Id. at 164. Upon her return, school authorities allowed the delinquent student to board

a bus on which one of the two students she had previously assaulted was riding. Id. The plaintiffs

argued that the school created a danger by affirmatively permitting the delinquent student to return

to school rather than expelling her. Id. at 179. Rejecting the plaintiffs’ argument, the Third Circuit

held that plaintiffs could not satisfy the fourth prong of the state-created danger exception by

simply recasting the omissions upon which the claims were based as affirmative acts. “[M]erely

restating the Defendants’ inaction as an affirmative failure to act does not alter the passive nature

of the alleged conduct.” Id.

Here, in the third amended complaint, Plaintiffs allege the following purported “affirmative

conduct of Defendants:”4

(a) Affirmatively ordering Shawn Morcho into a holding cell at the

Yeadon Borough Police Department when they knew he was not

going to be monitored;

(b) Affirmatively walking away from the cell when they knew

Shawn Morcho would not be monitored;

(c) Affirmatively choosing not to perform any type of pre-detainee

screening including mental health screening, risk assessment,

health screening, suicidal tendency screen and all other pre-

detainee screenings, which are all required by state law and/or

required by policy of Defendant Yeadon Borough;

(d) Affirmatively choosing not to assign personnel to monitor

Shawn Morcho either by reasonable cell checks or under

reasonable monitoring by closed circuit video;

(e) Affirmatively choosing not to monitor Shawn Morcho by

reasonable cell checks or by closed circuit video;

(f) Affirmatively choosing to have officers leave the station or

otherwise purposely having the station understaffed;

(g) Affirmatively and intentionally choosing to not perform any

screening;

4 In the third amended complaint, Plaintiffs lump all Defendants together, merely asserting that

“Defendants” engaged in the list of affirmative acts. The third amended complaint, however, contains no

allegations specific to any of the Individual Defendants other than Defendants Barr, Tokonitz, and Stephens.

(h) Affirmatively and intentionally choosing to disregard signs of

distress in and potential for self-harm by Shawn Morcho;

(i) Defendant Burns affirmatively condoned, approved, acquiesced,

tolerated, participated in and allowed all defendants behavior as

described above to continue; [and]

(j) Other affirmative conduct, which can only be disclosed upon

discovery.

(Third Am. Compl., ECF 38, at ¶ 115(a-j)). Like the plaintiffs in Morrow, Plaintiffs attempt to

characterize their claims as being based on affirmative acts of the Individual Defendants. A fair

reading of the third amended complaint, however, demonstrates otherwise. At the heart of each of

the above allegations is an omission or a failure to act. Specifically, each allegation is premised

on the Individual Defendants’ failure to monitor Shawn’s cell, failure to assign sufficient personnel

to monitor the cell, and failure to perform any kind of pre-detainee screening. Plaintiffs’ attempt

to frame the Individual Defendants’ alleged conduct as affirmative acts by merely placing the word

“affirmatively” before what clearly amount to omissions and/or failures does “not alter the passive

nature of the alleged conduct.” Morrow, 719 F.3d at 179. Under the well-settled case law, such

“omissions are insufficient to trigger substantive due process liability.” Kaucher, 455 F.3d at 435.5

Absent allegations of actionable affirmative conduct by each of the Individual Defendants,

Plaintiffs have not established viable claims under the state-created danger exception.

5 As noted by the Third Circuit in Bright, it has “never found a state-created danger claim to be

meritorious without an allegation and subsequent showing that state authority was affirmatively exercised.”

443 F.3d at 282 (emphasis added). Further, “state actors cannot ‘use their authority’ to create such an

opportunity by failing to act.” Id. at n.6; see also Brown v. Sch. Dist. of Phila., 456 F. App’x 88, 92 (3d Cir.

2011) (holding that a school district’s “lack of affirmative action” was “fatal to [plaintiffs’] §

1983 claim”); Kaucher, 455 F.3d at 433, n.11 (collecting cases in which Third Circuit held that defendant’s

“failures to act cannot form the basis of a valid § 1983 claim”).

Deliberate Indifference Theory

As correctly acknowledged by the Individual Defendants, Plaintiffs also assert their § 1983

claims against the Individual Defendants under the deliberate indifference theory. Defendants’

only apparent challenge to Plaintiffs’ claim under this theory is that Plaintiffs have not alleged any

facts with respect to the Individual Defendants, other than Defendant Barr, who was responsible

for Shawn’s arrest.6

It is well established in the Third Circuit that the suicide of a pretrial detainee can form the

basis of a deliberate indifference claim under § 1983. Colburn v. Upper Darby Twp. (“Colburn

II”), 946 F.2d 1017 (3d Cir. 1991). To assert a viable § 1983 claim premised on a pretrial

detainee’s suicide, a plaintiff must allege facts sufficient to plausibly show: (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. Palakovic v. Wetzel, 854 F.3d 209, 223-24 (3d Cir. 2017). “The

requirement of a ‘particular vulnerability to suicide’ speaks to the degree of risk inherent in the

detainee’s condition.” Colburn II, 946 F.2d at 1024. “[T]here must be a strong likelihood, rather

than a mere possibility, that self-inflicted harm will occur.” Id. (citations omitted). However,

“[e]ven where a strong likelihood of suicide exists, it must be shown that the custodial officials

‘knew or should have known’ of that strong likelihood.” Id. “[I]t is not necessary that the

custodian have a subjective appreciation of the detainee’s ‘particular vulnerability.’” Id. at 1024–

25. “Nevertheless, there can be no reckless or deliberate indifference to that risk unless there is

6 Defendants argue that a § 1983 claim premised on a suicide cannot be brought under a deliberate

indifference theory, but rather must be brought under reckless indifference. This argument is misplaced.

The Third Circuit has recognized that the two standards are the same. See Williams v. Borough of W.

Chester, 891 F.2d 458, 464 n.10 (3d Cir. 1989); see also Dimitris v. Lancaster Cnty. Prison Bd., 2002 WL

32348283, at *5 n.2 (E.D. Pa. June 7, 2007) (“We make no distinction between ‘reckless indifference’ and

‘deliberate indifference’ for the purpose of this summary judgment motion.”).

something more culpable on the part of the officials than a negligent failure to recognize the high

risk of suicide.” Id. at 1025. As such, the “should have known” element:

does not refer to a failure to note a risk that would be perceived with

the use of ordinary prudence. It connotes something more than a

negligent failure to appreciate the risk of suicide presented by a

particular detainee, though something less than subjective

appreciation of that risk. The strong likelihood of suicide must be

so obvious that a lay person would easily recognize the necessity for

preventative action; the risk of self-inflicted injury must not only be

great, but also sufficiently apparent that a lay custodian's failure to

appreciate it evidences an absence of any concern for the welfare of

his or her charges.

Id. (citation and internal quotations omitted).

In their motion, the Individual Defendants do not direct any arguments at any of the three

specific requirements set forth above. Instead, they merely assert that “[t]here is simply no basis

to argue that others, including the police secretary, Patricia Scheerle, are responsible for this

prisoner. No one other than Officer Barr took the decedent into custody and transported him back

to the police station.” (Defs’. Mot., ECF 41, at pp. 8-9). Construing this argument liberally, the

Individual Defendants essentially argue that Plaintiffs have failed to allege facts to show the

requisite personal involvement by any of the Individual Defendants other than Defendant Barr.

It is well-settled that for an individual defendant to be liable under § 1983, said individual

must have had some personal involvement in the wrongdoing. See, e.g., Evancho v. Fisher, 423

F.3d 347, 353 (3d Cir. 2005). As such, to assert a viable claim, “a plaintiff must allege facts

sufficient to raise a plausible inference that the defendants were personally involved in violating

the plaintiff’s constitutional rights.” Thomas v. Barkley, 2013 WL 4786124, at *6 (W.D. Pa. Sept.

6, 2013) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1990-91 (3d Cir. 1995)); see also Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (holding that the defendant “must have personal

involvement in the alleged wrongs”). “Personal involvement can be shown through allegations of

personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. These

allegations “must be made with appropriate particularity.” Id.; see also Evancho, 423 F.3d at 353

(affirming dismissal of a complaint that did not “contain even a remote suggestion that [the

supervisor] had contemporaneous, personal knowledge of [the alleged constitutional violation] and

acquiesced in it”). In a case involving a suicide, a plaintiff must allege facts sufficient to plausibly

show, inter alia, that each individual defendant was aware of, or should have been aware of, the

decedent’s vulnerability to suicide and exhibited deliberate indifference to that vulnerability. See

McDonald-Witherspoon v. City of Phila., 2017 WL 3675408, at *6 (E.D. Pa. Aug. 25, 2017)

(dismissing § 1983 claims against two officers where plaintiff failed to allege facts sufficient to

plausibly show that each of the officers was aware of the vulnerability to suicide and acted with

reckless indifference to the vulnerability).

As set forth above, Plaintiffs allege that the three Responding Officers (Defendants Barr,

Takonitz, and Stephens) observed and/or were made aware of various facts that placed them on

notice that Shawn was suffering from a mental health crisis, and that despite this information, the

Responding Officers transported Shawn to prison (rather than to the treatment facility as requested

by Shawn’s mother) and placed him in a holding cell. Plaintiffs, however, do not allege any facts

that could plausibly show that any of the other Individual Defendants—Defendants Burns, Ingram,

Cesanek, Houghton, or Scheerle—were aware or even should have been aware of Shawn’s

vulnerability to suicide. Indeed, Plaintiffs expressly allege that the Responding Officers’

observations were not conveyed to the other Individual Defendants:

[Responding Officers] failed to communicate the officers’

observations in transporting and interacting with Shawn Morcho in

the vehicle on the way to the police station, and observations while

at the station, to other employees, including Defendant Patricia

Scheerle, and others who had the responsibility of monitoring at

least the closed-circuit video of Shawn Morcho as well as to conduct

personal inspection of his cell on a reasonable basis.

(Third Am. Compl., ECF 38, at ¶ 84). In the absence of any such allegations, Plaintiffs have not

met their pleading burden with respect to the requisite reckless indifference by these Individual

Defendants to Shawn’s particular vulnerability to suicide. Accordingly, Plaintiffs’ § 1983 claims

against Defendants Burns, Ingram, Cesanek, Houghton, and Scheerle are dismissed.

Notably, Defendants concede throughout their motion that Plaintiffs’ Fourteenth

Amendment claim against Defendant Barr should survive. (See Defs’. Mot., ECF 41, at pp. 8-9).

Defendants base this concession on their acknowledgment that Officer Barr “took decedent into

custody and transported him back to the police station.” (Id.). That concession, however, applies

equally with respect to the other two Responding Officers, Defendants Takonitz and Stephens.

Therefore, for the same reasons that Defendants concede that Plaintiffs have pled a Fourteenth

Amendment claim against Officer Barr, Plaintiffs have also pled a Fourteenth Amendment claim

against Officers Takonitz and Stephens.

Count III: Intentional Conduct Claim Under State Law

Against All Individual Defendants

At Count III of the third amended complaint, Plaintiffs assert claims for “intentional

conduct” under Pennsylvania state law against all the Individual Defendants premised on the same

conduct underlying their § 1983 claims. Though Defendants are correct that there is no cause of

action for “intentional conduct,” Count III can be construed as Plaintiffs’ attempt to assert

unspecified claims for intentional torts. Even so construed, however, Plaintiffs have not alleged

any facts to support any intentional torts. Accordingly, Defendants’ motion to dismiss Count III

is granted.

Count IV: Inadequate Supervision Claims Under § 1983

Against All Individual Defendants

At Count IV of the third amended complaint, Plaintiffs assert § 1983 claims against all

Individual Defendants for “inadequate supervision.” Underlying these purported claims are

Plaintiffs’ allegations that the Individual Defendants failed to adequately supervise Shawn while

he was detained. As Defendants correctly argue, there is no cognizable § 1983 claim for

inadequate supervision of a detainee separate from that asserted in Count I of the third amended

complaint. Plaintiffs’ reliance on S.M. v. Lincoln Cnty., 874 F.3d 581 (8th Cir. 2017) to suggest

otherwise is misplaced. In S.M., the court addressed a Monell claim against a municipality

premised upon the municipality’s failure to adequately supervise one of its employees, not a

detainee. Id. at 584. There is no legal support for a § 1983 claim premised on the failure to

supervise a detainee, separate from the ordinary § 1983 claims asserted in Count I. Accordingly,

Defendants’ motion to dismiss Count IV is granted with respect to all Individual Defendants.

Count VI: Negligence Claim Based on the Real Property Exception

Against All Defendants

At Count VI of the third amended complaint, Plaintiffs assert a negligence claim against

all Defendants under the real property exception to the governmental immunity provided by the

Pennsylvania Political Subdivision Tort Claims Act (the “Tort Claims Act”), 42 Pa. Cons. Stat. §

8541. Defendants argue that Plaintiffs’ negligence claim, as pled, does not fall within the narrow

real estate exception. This Court agrees.

The Tort Claims Act provides a general cloak of immunity for local governmental units

and their employees. 42 Pa. Cons. Stat. § 8541. However, the real estate exception at § 8542(b)(3)

permits a cause of action for injuries arising out of “the care, custody or control of real property in

the possession of the local agency. . . .” Id. at § 8542(b)(3). Because § 8542(b)(3) is an exception

to the general rule of governmental immunity, it must be strictly construed and narrowly

interpreted. Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1123 (Pa. 1987). In the seminal case

interpreting this exception, the Supreme Court of Pennsylvania held that “the real estate exception

can be applied only to those cases where it is alleged that the artificial condition or defect of the

land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose

acts are outside the statute’s scope of liability.” Id. at 1124.

In Harding v. Galyias, 544 A.2d 1060 (Pa. Commw. Ct. 1988), the Commonwealth Court

of Pennsylvania addressed claims, similar to those asserted here, brought under the real estate

exception. The Harding Court described the allegations as follows:

The injury for which Appellants seek compensation in these cases is

death. The act which resulted in death was suicide by hanging. Each

act was committed by Scott Harding and Christopher Cooper

themselves. The condition of the jail facilities may have made it

easier for the hanging to be accomplished, but the condition of the

jail facilities themselves did not cause the death of either Scott

Harding or Christopher Cooper.

Id. at 1065. Relying on Mascaro, the court concluded, as a matter of law, that the claims did not

fall within the real estate exception. Id.

Here, Plaintiffs’ negligence claims against Defendants are identical to those in Harding.

As such, Plaintiffs have not alleged that the design, defect, or condition of the holding cell itself

caused Shawn’s death. Rather, at best, Plaintiffs have alleged that the condition of the cell

facilitated Shawn in taking his own life. As a matter of law, such claim falls outside the limited

real estate exception. Accordingly, Defendants’ motion to dismiss is granted as to Count VI.

Count V: Wrongful Death and Survivor Act

Claims Against All Defendants

At Count V of the third amended complaint, Plaintiffs bring claims against all Defendants

under the Pennsylvania Wrongful Death Act, 42 Pa. Cons. Stat. § 8301 et seq., and the

Pennsylvania Survivor Act, 42 Pa. Cons. Stat. § 8302 et seq. In their motion to dismiss, Defendants

correctly argue that these statutes do not provide substantive causes of action, but rather provide

the means by which an estate or survivor can seek remedies for unlawful conduct that results in

death. See Johnson v. City of Phila., 105 F. Supp. 3d 474, 483 (E.D. Pa. 2015). Because wrongful

death and survival actions are not independent causes of action, a plaintiff asserting these claims

must assert some other independent, cognizable claim to survive a motion to dismiss the wrongful

death and survival claims. Lansberry v. Altoona Area Sch. Dist., 356 F. Supp. 3d 486, 504 (W.D.

Pa. 2018). For the reasons discussed above, Plaintiffs have asserted cognizable § 1983 claims

against Defendants Barr, Tokonitz, and Stephens. Notably, Defendant Yeadon Borough has not

moved to dismiss the Monell claim against it. Accordingly, Defendants’ motion to dismiss Count

V is denied as to Defendants Barr, Tokonitz, Stephens, and Yeadon Borough. Because Plaintiffs

have not alleged a viable claim against any of the other Individual Defendants, Count V is

dismissed only as to Defendants Burns, Ingram, Cesanek, Houghton, and Scheerle.

Qualified Immunity

Defendants argue that, except for Defendant Barr, the remaining Individual Defendants are

entitled to qualified immunity based on their lack of involvement with Shawn prior to his suicide.

As set forth above, only Plaintiffs’ claims against the Responding Officers survive Defendants’

underlying motion to dismiss. Thus, this Court need only address Defendants’ qualified immunity

argument as to the Responding Officers.

Qualified immunity is an affirmative defense that shields government officials from

personal liability for civil damages. Lane v. Franks, 134 S. Ct. 2369, 2381 (2014). “Under this

doctrine, courts may not award damages against a government official in his personal capacity

unless ‘the official violated a statutory or constitutional right,’ and ‘the right was ‘clearly

established’ at the time of the challenged conduct.’” Id. (citations omitted). To determine whether

a defendant is entitled to qualified immunity, a court must consider: (1) whether the defendant

violated a constitutional right; and (2) whether the right was clearly established, such that it would

have been clear to a reasonable person that the conduct was unlawful under the circumstances.

Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir. 2011) (citing Saucier v. Katz, 533 U.S. 194,

201-02 (2001)). In making this determination, the court must view the facts “in the light most

favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 (2007). The

defendant seeking to invoke qualified immunity, however, bears the burden of showing its

applicability. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).

While qualified immunity “‘should be considered at the earliest possible state, a genuine

issue of material fact may preclude’ dismissal on qualified immunity.” Womack v. Smith, 2009

WL 5214966, at *4 (M.D. Pa. 2009) (citing Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002)).

“Qualified immunity shall be upheld on a 12(b)(6) motion only when the defense is established on

the face of the complaint.” Id. (internal quotations and citation omitted); see also Newland v.

Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (cautioning “that it is generally unwise to

venture into a qualified immunity analysis at the pleading stage as it is necessary to develop the

factual record in the vast majority of cases”).

In their motion, Defendants essentially argue that the Responding Officers are entitled to

qualified immunity because Plaintiffs have not alleged facts to plausibly show that the Responding

Officers had the requisite knowledge of Shawn’s vulnerability to suicide.7 As discussed, however,

Defendants concede that Plaintiffs have asserted a viable § 1983 claim against Defendant Barr.

Further, the factual underpinnings of Plaintiffs’ claims against Defendant Barr are the same as

7 Though briefly reciting the two requirements for qualified immunity, Defendants do not provide

any argument with respect to the “clearly established” prong.

those underlying their claims against Defendants Tokonitz and Stephens. Thus, at this stage of the

proceedings, Plaintiffs have asserted viable § 1983 claims against Defendants Barr, Stephens, and

Tokonitz. Therefore, Defendants’ motion to dismiss on the basis of qualified immunity is denied.

CONCLUSION

For the reasons set forth, Defendants’ motion to dismiss is granted with respect to: (1) all

claims asserted against Defendants Burns, Ingram, Cesanek, Houghton, and Scheerle at Counts I

III, IV, V, and VI of the third amended complaint; (2) all claims asserted against Defendants Barr,

Tokonitz, and Stephens at Count I premised on the state-created danger theory; and (3) all claims

against asserted against all Defendants at Counts III, IV, and VI.

Defendants’ motion to dismiss is denied with respect to the claims asserted against

Defendants Barr, Tokonitz, and Stephens at Counts I and V of the third amended complaint,

premised on the deliberate indifference/reckless indifference theories. An Order consistent with

this Memorandum Opinion follows.

Since Defendants did not move to dismiss Plaintiffs’ Fourteenth Amendment claim against

Defendant Barr at Count I nor the Monell claim against Yeadon Borough at Count II of the third

amended complaint, these claims remain.

NITZA I. QUIÑONES ALEJANDRO, J.