Opinion

McCracken v. Fulton County

Court
District Court, M.D. Pennsylvania
Filed
May 28, 2020
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PATRICK MCCRACKEN, : CIVIL ACTION NO. 3:19-CV-1063

Administrator of the Estate of :

JEFFREY ALLEN MCCRACKEN, : (Chief Judge Conner)

:

Plaintiff :

:

v. :

:

FULTON COUNTY, et al., :

:

Defendants :

MEMORANDUM

Plaintiff Patrick McCracken commenced this civil rights action on behalf

of the estate of his late father, Jeffrey Allen McCracken. Plaintiff asserts various

constitutional and state-law claims against more than four dozen state and county

defendants, all arising from his father’s tragic suicide while detained at Bedford

County Prison in June 2017. Before the court are plaintiff’s amended complaint,

motions to dismiss filed by all defendants, the report of Magistrate Judge Karoline

Mehalchick, and several defense objections to that report.

I. Factual Background & Procedural History

The facts alleged in plaintiff’s amended complaint are these. On June 24,

2017, decedent Jeffrey Allen McCracken (“McCracken”) got into an argument with

his girlfriend, Keri Moore, at their home in Fulton County, Pennsylvania. (See Doc.

17 ¶ 47). McCracken and Moore had been having relationship problems for the past

two months, and McCracken was “depressed and emotionally distraught” after the

argument. (Id. ¶¶ 47-48). At some point, Moore ended the conversation and went to

bed. (See id. ¶ 49).

Plaintiff alleges that around 1:00 a.m. on June 25, 2017, “McCracken called

for Moore to come out of the bedroom” and then “reached for a loaded shotgun and

put its barrel to his mouth in an attempt to kill himself.” (Id. ¶ 49). Plaintiff further

alleges that “Moore lunged to get the gun away from McCracken when the gun

discharged and shot into the ceiling.” (Id. ¶ 50). Moore’s sister was also present at

the time and attempted, unsuccessfully, to take the gun from McCracken as he left

the home. (See id.) Moore called 911 and informed the dispatcher that McCracken

“had tried to kill himself with a gun.” (Id. ¶ 51).

The dispatcher relayed this information over the radio, and Pennsylvania

State Police (“PSP”) Troopers Jason Pierotti and Seth Sprague were dispatched to

the couple’s home. (Id. ¶¶ 52-53). Moore and her sister informed the troopers that

McCracken was suicidal. (Id. ¶ 53). The troopers searched for McCracken to no

avail before being advised by their supervisor, PSP Corporal Ellis Barnett, to return

to PSP barracks and initiate criminal charges against McCracken. (Id.) Trooper

Pierotti asked Moore and her sister to return to PSP barracks with the troopers to

provide formal statements. (Id. ¶ 54). At the barracks, both women reiterated that

McCracken had attempted to shoot himself. (See id.) Trooper Pierotti prepared

charges against McCracken for recklessly endangering another person, simple

assault, and discharging a firearm into an occupied structure, and a warrant issued

for McCracken’s arrest. (Id. ¶ 55).

At approximately 10:00 a.m., PSP Corporal Jeff Remeikas and PSP

Troopers James Dountas, Chris Bourne, and Zachary Beers returned to McCracken

and Moore’s home, where they found and arrested McCracken. (Id. ¶ 56). After

returning to PSP barracks, Trooper Dountas read McCracken his Miranda rights

and McCracken relayed essentially the same version of events as Moore and her

sister: that he had retrieved his shotgun and threatened to kill himself following an

argument with Moore and that, when Moore tried to take the gun, it fired into the

ceiling. (Id. ¶ 57).

McCracken was arraigned on the charges in Fulton County and ordered

detained pending his preliminary hearing. (Id. ¶ 59). Due to overcrowding in

Fulton County’s jail and pursuant to a contract with neighboring Bedford County,

McCracken was detained at Bedford County Prison. (Id. ¶¶ 16, 59-60). Plaintiff

avers that as many as 28 different individuals may have transported McCracken

from his arraignment to Bedford County Prison. (Id. ¶ 61). Specifically, he states

that McCracken was transported to Bedford County Prison by:

Fulton County Sheriff Keith Stains and/or Fulton County

Deputy Sheriff John Doe # 1-5, and/or Bedford County

Sheriff Charwin Reichelderfer, and/or Bedford County

Deputy Sheriff John Doe #1-5, and/or Trooper Jason

Pierotti, and/or Trooper Seth Sprague, and/or Corporal

Ellis Barnett, and/or Trooper James Dountas, and/or

Trooper Chris Bourne, and/or Corporal Jeff Reimekas,

and/or Trooper Zachary Beers, and/or Trooper John

Doe #s 1-8, and/or Constable Normal Sheffield.

(Id. ¶ 61). Plaintiff maintains that each of these individuals knew or should

have known that McCracken was a suicide risk. (See id. ¶ 66).

The amended complaint offers little insight into what happened when

McCracken arrived at Bedford County Prison. Plaintiff avers that transporting

officers “failed in their duty” to apprise prison staff that McCracken had recently

attempted suicide. (See id. ¶¶ 61-66). Plaintiff alleges that prison medical and

corrections staff—specifically, Doctor John Doe; Debra Slick, RN; Liana Altemus,

RN; Katherine Barrett, RN; Todd Haskins; John/Jane Doe #1-5; Warden Troy

Nelson; Correctional Officer Darrell Holliday; and Correctional Officers John Doe

#1-5—knew or should have known that McCracken was at risk for suicide, although

plaintiff does not reconcile this allegation with his claim that transporting officials

failed to relay that information. (See id. ¶ 68). Plaintiff then asserts that, “despite

knowing that McCracken was depressed, distraught[,] and had recently attempted

suicide,” medical staff marked on intake forms that McCracken was not suicidal,

referred him to general population, provided no medical treatment, and did not

place him on suicide watch. (See id. ¶¶ 70-72). Because of overcrowding issues,

McCracken was “housed by himself” in the prison’s gymnasium. (Id. ¶ 71).

Sometime during his two-day detention at Bedford County Prison,

McCracken called Moore. (See id. ¶ 75). The call was monitored by Correctional

Officer Holliday “and/or” five John Doe correctional officers. (Id.) During the call,

McCracken told Moore that he had written a suicide note and described where she

could find it. (Id.) Neither Correctional Officer Holliday nor any of the John Doe

correctional officers placed McCracken on suicide watch, referred him for

psychiatric evaluation, or otherwise acted to protect him. (Id.)

On June 27, 2017, McCracken entered the gymnasium’s bathroom

unsupervised and hung himself by attaching his bedsheet to the bathroom door’s

metal retractor. (Id. ¶ 76). Correctional Officer Holliday discovered McCracken at

approximately 5:55 a.m. (Id. ¶ 77). Lifesaving measures were unsuccessful, and

McCracken was pronounced dead. (Id. ¶ 78).

Plaintiff commenced this action on behalf of McCracken’s estate on

June 24, 2019. The matter is currently proceeding via plaintiff’s first amended

complaint. The amended complaint names 52 defendants in total, as follows:

• The Fulton County defendants, consisting of Fulton County, the

Fulton County Commissioners (Stuart Ulsh, Rodney L. McCray, and

Larry R. Lynch), Sheriff Stains, and five John Doe deputy sheriffs;

• The Bedford County defendants, consisting of Bedford County,

Sheriff Reichelderfer, five John Doe deputy sheriffs, Warden Nelson,

Correctional Officer Holliday, and five John Doe correctional officers;

• The PSP defendants, consisting of Colonel Robert Evanchick in his

capacity as Commissioner of the PSP,1 Trooper Pierotti, Trooper Sprague,

Corporal Barnett, Trooper Dountas, Trooper Bourne, Corporal Reimekas,

Trooper Beers, and eight John Doe PSP troopers;

• The medical defendants, consisting of PrimeCare Medical, Inc., Doctor

Doe, Todd Haskins, Nurse Slick, Nurse Altemus, Nurse Barrett, and five

John Doe and Jane Doe PrimeCare Medical employees; and

• Constable Normal Sheffield.

(See generally Doc. 1). Plaintiff asserts the following claims: in Count I, a Section

1983 claim for deliberate indifference to a known risk of suicide against all named

1 Colonel Evanchick was confirmed as PSP Commissioner on June 4, 2019,

and is automatically substituted as the defendant in this action. See FED. R. CIV. P.

25(d).

defendants; in Count II, a Section 1983 claim for inadequate medical care against

the medical defendants; in Count III, a Section 1983 substantive due process claim

against all defendants alleged to be involved in McCracken’s transport; in Count IV,

a Section 1983 substantive due process claim against Correctional Officer Holliday

and the John Doe correctional officers; in Count V, a claim against Fulton County

and its commissioners, Bedford County, both counties’ sheriffs, PrimeCare Medical,

Commissioner Evanchick, and Warden Nelson for maintaining customs and policies

that are deliberately indifferent to detainees’ constitutional rights; in Count VI, a

state-law claim for medical professional negligence against the medical defendants2;

and in Counts VII and VIII,3 state-law wrongful death and survival actions against

all defendants.

The five groups of defendants filed separate motions to dismiss, and Judge

Mehalchick issued a report recommending that we grant in part and deny in part

those motions. All parties except plaintiff and the PSP defendants have lodged

objections to the report.

2 Plaintiff titles this claim “Plaintiff v. PMC, DOCTOR,” (Doc. 17 at 34), but

the enumerated paragraphs thereafter reference all medical defendants by name,

(see id. ¶¶ 146-147). We construe the claim as being asserted against all medical

defendants.

3 The amended complaint styles both the wrongful-death count and the

separate survival count as “Count VII.” (See Doc. 17 at 34-35). For clarity, we refer

to the counts sequentially: the wrongful-death count as Count VII and the survival

count as Count VIII.

II. Legal Standards

A. Review of a Magistrate Judge’s Report and Recommendation

When a party objects to a magistrate judge’s report and recommendation,

the district court undertakes de novo review of the contested portions of the report.

See E.E.O.C. v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting 28 U.S.C.

§ 636(b)(1)); see also FED. R. CIV. P. 72(b)(3). We afford “reasoned consideration” to

any uncontested portions of the report before adopting them as the decision of the

court. City of Long Branch, 866 F.3d at 100 (quoting Henderson v. Carlson, 812 F.2d

874, 878 (3d Cir. 1987)).

B. Rule 12(b)(6) Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),

the court must “accept all factual allegations as true, construe the complaint in the

light most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County

of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

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

misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion

The pending Rule 12(b)(6) motions raise a constellation of challenges

to plaintiff’s amended complaint, chief among them that the pleading is long on

supposition and short on fact. Defendants also raise varying immunity defenses,

seek to strike certain requests for attorney’s fees and punitive damages, and ask us

to dismiss allegations of joint and several liability. Judge Mehalchick recommends

that we grant sovereign immunity to the PSP defendants as to plaintiff’s state-law

claims, dismiss plaintiff’s request for punitive damages as to all defendants on the

wrongful-death count and as to the municipal entities on all counts, and strike all

claims of joint and several liability. Judge Mehalchick opines that the amended

complaint otherwise adequately pleads all claims and should be allowed to proceed

against all defendants. It is this latter recommendation that is met with robust

defense objections.

We begin by identifying the points on which we agree with Judge

Mehalchick. We agree that the PSP defendants are entitled to sovereign immunity

as to the state-law claims asserted against them. (See Doc. 51 at 22-24). We also

agree that the request for punitive damages must be stricken as to all defendants on

the wrongful-death count and as to the municipal defendants on all counts, (id. at

27-29), and that plaintiff alleges no facts to support joint and several liability, (id. at

29-30). There are no objections to these aspects of the report, and we perceive no

clear error in Judge Mehalchick’s analysis of these issues. See FED. R. CIV. P. 72(b),

advisory committee notes. Accordingly, we will adopt these portions of Judge

Mehalchick’s analysis as the decision of the court. We turn our attention to the

challenged aspects of the report, beginning with the constitutional claims.4

4 The PSP defendants have not moved to dismiss the federal constitutional

claims against them. (See Doc. 42). The balance of our discussion pertains to the

Fulton and Bedford County defendants, the medical defendants, and Constable

Sheffield. Where our analysis infra refers to the “transporting officers,” that phrase

excludes the PSP defendants.

A. Individual Liability Claims

Plaintiff’s core claims arise under Section 1983 of Title 42 of the United

States Code. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. 42 U.S.C. § 1983. The statute is not a source

of substantive rights, but serves as a mechanism for vindicating rights otherwise

protected by federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp

v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish Section 1983 liability, a

plaintiff must prove a deprivation of a “right secured by the Constitution and the

laws of the United States . . . by a person acting under color of state law.” Kneipp,

95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995)).

Defendants do not dispute their status as state actors for purposes of

Section 1983. Our sole inquiry is whether any defendant engaged in conduct that

deprived McCracken of rights secured by the United States Constitution. Although

plaintiff assigns different labels to each of Counts I through IV, at bottom he asserts

a singular constitutional grievance: that all defendants were deliberately indifferent

to McCracken’s known vulnerability of suicide.5 (See Doc. 17 ¶¶ 89-135; see also

Doc. 35 at 7-17; Doc. 40 at 11-15; Doc. 41 at 12-18; Doc. 48 at 10-15).

5 Several defendants have construed plaintiff’s amended complaint as also

stating a state-created danger claim, presumably based on plaintiff’s allegations

that the defendants involved in McCracken’s transport “used their authority to

create an opportunity for danger that otherwise would not have existed.” (See Doc.

17 ¶¶ 110-111). Plaintiff disclaims that construction of his pleading. (Doc. 41 at 16;

see Doc. 40 at 12-13; Doc. 48 at 14-15). Accordingly, we do not consider a state-

created danger theory of liability.

The suicide of a pretrial detainee may support a Fourteenth Amendment

claim against state officials who are aware of and act with reckless indifference to a

detainee’s “particular vulnerability” to suicide. The Third Circuit Court of Appeals

recognized liability for such claims in Colburn v. Upper Darby Township (“Colburn

I”), 838 F.2d 663 (3d Cir. 1988), and later elaborated on the applicable standard in

Colburn v. Upper Darby Township (“Colburn II”), 946 F.2d 1017 (3d Cir. 1991),

and Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005). To plead a viable

Section 1983 detainee-suicide claim, a plaintiff must allege facts demonstrating that

(1) the detainee had a “particular vulnerability” to suicide, (2) custodial officials

“knew or should have known” of that vulnerability, and (3) those officials “acted

with reckless indifference” to the known risk of suicide. Woloszyn, 396 F.3d at 319

(quoting Colburn II, 946 F.2d at 1023).

The moving defendants focus primarily on the second element. They

contend that plaintiff has failed to allege any facts to support the conclusion that

each defendant knew or should have known of McCracken’s particular vulnerability

to suicide. (See Doc. 24 at 11-12; Doc. 34 at 7-8; Doc. 36 at 8-10; Doc. 46 at 11-12). As

to all defendants but the correctional officers, we agree.

“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.” Colburn

II, 946 F.2d at 1024. The Third Circuit explained in Colburn II that a plaintiff need

not show subjective knowledge—only that the defendant should have known that

the detainee in question was particularly vulnerable to suicide. Id. at 1024-25. The

court articulated the standard as follows:

“[S]hould have known,” as used in Colburn I, is a

phrase of art with a meaning distinct from its usual

meaning in the context of the law of torts. It 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 the 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

be not only 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. at 1025 (emphasis added) (internal citations omitted).

Plaintiff asserts in conclusory fashion that all 52 defendants “knew or

should have known” of the circumstances underlying McCracken’s arrest and

detention. (See Doc. 17 ¶¶ 61, 66, 68). But as to nearly all moving defendants, the

amended complaint is devoid of facts to support this legal conclusion. The most

extreme example is the Fulton County Commissioners, who are included in the

deliberate-indifference count based solely on the claim that they somehow “knew”

that McCracken was vulnerable to suicide and failed to act. (Id. ¶ 90). Yet plaintiff

does not offer a single factual allegation linking these defendants to McCracken’s

arrest, transport, or detention, or explain how they otherwise should have known

that McCracken may have been suicidal. We will dismiss plaintiff’s deliberate-

indifference claim against the Fulton County Commissioners for both lack of

personal involvement and failure to plead the knowledge element.

Nor does plaintiff articulate how any of the transporting officers—other than

the PSP defendants involved in McCracken’s arrest—had the requisite knowledge

to support deliberate-indifference liability. Plaintiff avers that transporting officers

should have information about the circumstances surrounding a detainee’s arrest,

but plaintiff does not allege that the transporting officers did have that information

here. (See id. ¶ 62). There is no allegation that transporting officers had a copy of

or access to the criminal complaint or other records from which they could have

gleaned information about McCracken’s arrest, or that they were present in court

when that information may have been discussed. Stripped of its “[t]hreadbare

recitals” concerning what plaintiff thinks these defendants ought to have known,

see Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555), the amended complaint

fails to state a claim against the transporting officers.

The same infirmities plague plaintiff’s amended complaint against the

medical defendants and most correctional defendants. As to the bulk of these

defendants—viz., Doctor John Doe, Nurse Slick, Nurse Altemus, Nurse Barrett,

someone named “Todd Haskins,” five John and Jane Doe employees of PrimeCare

Medical, and Warden Nelson—the amended complaint offers only a bare assertion

that they “knew or should have known that McCracken had just attempted suicide,

and was a serious risk of suicide.” (Id. ¶ 68). Again, a legal conclusion without

factual foundation. We have no description of the prison’s intake or screening

processes from which to discern what these defendants might have learned about

McCracken. And we have no indication of what interactions, if any, the defendants

had with McCracken during those processes. There is simply no factual basis for

the conclusion that these individuals knew or should have known of McCracken’s

suicide attempt or then-existing suicidality. We will thus dismiss the deliberate-

indifference claims against the medical defendants and Warden Nelson.6

Plaintiff’s related claim against the medical defendants for inadequate

medical care fails for the same reason. To prevail on a claim that prison officials

were deliberately indifferent to a serious medical or mental-health need, a plaintiff

must plead that detaining officials knew or should have known of, and consciously

disregarded, an excessive risk to detainee health and safety. Natale v. Camden Cty.

Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citation omitted); see also Woloszyn,

396 F.3d at 320-21 (citations omitted). In the detainee-suicide context, this claim

concerns alleged inadequacies in mental-health treatment leading up to the suicide

and is distinct from and broader than any deliberate-indifference claim arising from

the suicide itself. Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017). Nonetheless,

the claim still requires plaintiff to allege facts demonstrating that medical staff were

aware of a serious mental-health need. Because the amended complaint contains

no such facts, this claim must be dismissed as well.

We reach a different conclusion as to Correctional Officer Holliday and

the five John Doe correctional officers, as to whom the amended complaint passes

muster. Plaintiff alleges that these defendants monitored one of McCracken’s

6 We address plaintiff’s supervisory-liability claim against Warden Nelson

separately, infra.

phone calls and overheard him talking about his suicide note and explaining to his

girlfriend where in their home to find it. (Doc. 17 ¶ 75). Plaintiff further alleges

that, despite this knowledge, the correctional officers took no action to ensure that

McCracken was evaluated, placed on suicide watch, or otherwise protected from

himself. (Id.) These allegations suffice for Rule 12(b)(6) purposes—that is, they

“raise a reasonable expectation that discovery will reveal evidence” that these

defendants knew or should have known of, and were deliberately indifferent to,

McCracken’s particular vulnerability to suicide. See Twombly, 550 U.S. at 556. We

will therefore deny the Bedford County defendants’ motion to dismiss as pertains

to the claims against Correctional Officer Holliday and the John Doe correctional

officers.7

7 The correctional officer defendants cursorily invoke the qualified immunity

defense. (See Doc. 34 at 14). Qualified immunity protects a state actor who has

committed a constitutional violation if the injured party’s rights were not “clearly

established” when the individual acted. Pearson v. Callahan, 555 U.S. 223, 244-45

(2009). No liability will attach if a reasonable actor could have believed the conduct

in question was in compliance with settled law. Id.; see also Springer v. Henry, 435

F.3d 268, 280 (3d Cir. 2006). It is clearly established in this circuit that custodial

officials may be liable for deliberate indifference to a detainee’s known vulnerability

to suicide. See Colburn I, 838 F.2d 663; Colburn II, 946 F.2d 1017; Woloszyn, 396

F.3d 314. Defendants do not dispute this point. Rather, they contend that “not

following through” when they learned McCracken had written a suicide note was

“at worst . . . negligence” for which they are entitled to qualified immunity. (Doc. 34

at 14). We disagree. For the reasons set forth above, we find that plaintiff has pled

a plausible constitutional violation against the correctional officers and we decline

to afford qualified immunity to them at this juncture.

B. Supervisory and Municipal Liability Claims

In Count V, plaintiff asserts a claim against Fulton County and its

commissioners, Bedford County, both counties’ sheriffs, PrimeCare Medical, PSP

Commissioner Evanchick, and Bedford County Prison Warden Nelson. Therein,

plaintiff alleges that these defendants maintain an unconstitutional policy, custom,

or practice of failing to implement suicide screening, monitoring, intervention, or

treatment protocols. (See Doc. 1 ¶ 138). Plaintiff also alleges that these defendants

have failed to train employees in suicide screening, monitoring, intervention, and

treatment. (See id. ¶ 140). All defendants except Commissioner Evanchick move to

dismiss this claim.

Municipalities and other local governments are “persons” for Section 1983

purposes, Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978), but such entities

are not responsible for every constitutional tort committed by their employees, see

Connick v. Thompson, 563 U.S. 51, 60 (2011). To bring a Section 1983 claim against

a municipality, a plaintiff “must show that they were deprived of ‘rights, privileges,

or immunities secured by the Constitution and laws,’ and that the deprivation of

those rights was the result of an official government policy or custom.” Mulholland

v. Gov’t Cty. of Berks, 706 F.3d 227, 238 (3d Cir. 2013). The Third Circuit has

explained that, for municipal liability to attach, the plaintiff must establish that the

municipal policy or custom was itself unconstitutional or was the “moving force”

behind the constitutional deprivation. Thomas v. Cumberland County, 749 F.3d

217, 222 (3d Cir. 2014) (citation omitted). When a challenged policy or custom is not

facially unconstitutional, a plaintiff can meet the causation requirement “only by

demonstrating that the municipal action was taken with deliberate indifference as

to its known or obvious consequences”—“[a] showing of simple or even heightened

negligence will not suffice.” Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.

2000) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997)).

A plaintiff may bring a policy-based Monell claim for an alleged failure

to train employees. Thomas, 749 F.3d at 222. A failure-to-train claim requires

the plaintiff to show that the alleged training deficiency amounts to “deliberate

indifference” to the constitutional rights of individuals who will encounter the

untrained employees. See id. (quoting Carter v. City of Philadelphia, 181 F.3d 339,

357 (3d Cir. 1999)). This standard is demanding—it requires evidence that the

municipality “disregarded a known or obvious consequence” of its deficient

training program. Connick, 563 U.S. at 61 (quoting Brown, 520 U.S. at 410). The

alleged training deficiency must be closely related to the constitutional injury

suffered by the plaintiff. Id.

Certain individual defendants, too, may be held liable on a custom-or-policy

theory. The Third Circuit has explained that defendants in supervisory roles may

be liable if they “established and maintained a policy, practice[,] or custom which

directly caused [the] constitutional harm.” Santiago, 629 F.3d at 129 n.5 (second

alteration in original) (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,

372 F.3d 572, 586 (3d Cir. 2004)). To prevail on such a claim, a plaintiff must allege

that the supervisory defendant is a governmental policymaker—i.e., “an official

with final policymaking authority”—who either established or enforced policies that

were directly responsible for the claimed constitutional injury. Chavarriaga v. N.J.

Dep’t of Corr., 806 F.3d 210, 223 (3d Cir. 2015) (quoting Sample v. Diecks, 885 F.2d

1099, 1114, 1118 (3d Cir. 1989)).

Ordinarily, a pattern of prior constitutional violations will give notice to a

municipal actor that existing training or policies are constitutionally problematic,

and continued adherence to the original practices will demonstrate the “conscious

disregard” required to establish deliberate indifference. See Thomas, 749 F.3d at

223 (citation omitted); see also Berg, 219 F.3d at 276. In rare situations, however,

the need to act may be “so obvious” that failing to do so could rise to the level of

deliberate indifference even without a pattern of prior violations. Thomas, 749 F.3d

at 223 (quoting City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)); see also Berg,

219 F.3d at 276 (same). This “single-incident” liability turns on “[t]he likelihood

that the situation will recur and the predictability that an officer lacking specific

tools to handle the situation will violate citizens’ rights.” Thomas, 749 F.3d at 223-24

(alteration in original) (quoting Brown, 520 U.S. at 409). Plaintiff does not allege a

pattern of prior violations sufficient to put any municipal defendant on notice that

its existing practices or policies might be constitutionally infirm. (See generally

Doc. 17). Presumably, plaintiff intends to proceed on a single-incident theory.

The bulk of this count fails to state a claim. As against Fulton County, its

commissioners and sheriff, and PrimeCare Medical, the absence of an underlying

constitutional violation defeats a custom-or-policy theory of liability. A supervisory

liability claim “necessarily includes as an element an actual violation at the hands of

subordinates or employees.” Santiago, 629 F.3d at 130. Same for a Monell claim:

municipal liability cannot lie “if there is no violation in the first place.” Mulholland,

706 F.3d at 238 n.15 (citations omitted). We held supra that the amended complaint

fails to plead a constitutional violation attributable to any individual Fulton County

or PrimeCare Medical employee. We will thus dismiss the derivative Monell claims

against Fulton County and PrimeCare Medical and the supervisory liability claims

against the Fulton County Commissioners and Sheriff Stains.

Our analysis differs slightly as to Bedford County and Warden Nelson.

Because we have found that plaintiff failed to allege a constitutional violation by

Sheriff Reichelderfer or the John Doe deputy sheriffs for their alleged involvement

in McCracken’s transport, any Monell claim against Bedford County arising from

the transport fails too. See Mulholland, 706 F.3d at 238 n.15 (citations omitted);

Santiago, 629 F.3d at 130. To the extent Count V concerns Bedford County’s alleged

transport-related customs or policies, we must dismiss that claim.

However, plaintiff does state a plausible custom-or-policy claim against

Bedford County and Warden Nelson arising from the inactions of the correctional

officers. Specifically, we held supra that plaintiff has adequately pled a plausible

constitutional violation as to Correctional Officer Holliday and the other unnamed

correctional officers based on their alleged awareness of and deliberate indifference

to McCracken’s risk of suicide. Bedford County’s only challenge to this claim is that

plaintiff has not identified a municipal policy, practice, or custom to support his

Monell claim. (Doc. 34 at 12). That argument, however, is refuted by the amended

complaint.

Plaintiff alleges that both Bedford County and Warden Nelson have long

maintained a custom or policy of failing to provide adequate screening, monitoring,

intervention, or treatment of potentially suicidal detainees, and that both the county

and the warden failed to train correctional officers to recognize or respond to signs

of suicidality. (Doc. 17 ¶¶ 138, 140). What is more, plaintiff claims that defendants’

failure to implement such procedures was a conscious choice motivated, at least in

part, by a “desire to save money.” (Id. ¶ 139). Whether these allegations are true

is not for us to decide; that will be borne out in discovery. For our purposes at this

Rule 12(b)(6) stage, plaintiff has sufficiently stated a claim for an unconstitutional

policy or custom against Bedford County and Warden Nelson arising from alleged

deliberate indifference to McCracken’s known risk of suicide during his detention.

C. State-Law Claims

Plaintiff asserts three state-law claims: a medical professional negligence

claim in Count VI against the medical defendants, and statutory wrongful-death

and survival claims against all defendants in Counts VII and VIII, respectively. We

take up each of these claims, and the defendants’ challenges to them, below.

1. Medical Professional Negligence

The Pennsylvania Supreme Court has articulated four elements for a

medical professional negligence claim: to prevail, a plaintiff must establish that

(1) the defendant owed a duty to the patient, (2) the defendant breached that duty,

(3) the defendant’s breach was “the proximate cause of, or a substantial factor in,”

the patient’s harm, and (4) damages suffered by the patient “were a direct result of

that harm.” Thierfelder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012) (quoting Mitzelfelt

v. Kamrin, 584 A.2d 888, 891 (Pa. 1990)). The existence and scope of a defendant’s

duty turns, in part, on “the nature of the risk imposed and foreseeability of the

harm incurred.” Id. at 1275 (quoting Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa.

2000)). The ultimate question in medical professional negligence cases is whether

the defendant’s conduct “fell below the standard of care” owed to the patient. Id.

at 1264 (quoting Brannan v. Lankenau Hosp., 417 A.2d 196, 199 (Pa. 1980)).

Plaintiff’s negligence claim against the medical defendants is based on

the same allegations underlying his Section 1983 claims: he contends that these

defendants knew of and disregarded McCracken’s vulnerability to suicide and thus

fell short of their duties as medical professionals. (See Doc. 17 ¶¶ 145-148). The

sum total of plaintiff’s allegations are that the medical defendants “had a duty to

comply with generally accepted medical standards of care in their treatment of . . .

McCracken,” that they “violated their duty of care,” and that this violation was “a

direct and proximate cause and substantial factor in bringing about” McCracken’s

death. (Id.) The problem, once again, is that the amended complaint offers no facts

to support these sweeping conclusions. Accordingly, we must dismiss plaintiff’s

medical professional negligence claims against the medical defendants.

2. Wrongful Death and Survival

Plaintiff asserts claims against all defendants under Pennsylvania’s wrongful-

death and survival statutes. See 42 PA. CONS. STAT. §§ 8301, 8302. These statutes do

not create independent causes of action; rather, they are derivative in the sense that

the substance of the claim derives from the injury to the decedent. See id.; see also

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. Ct. 2013) (quoting

Kaczorowski v. Kalkosinski, 184 A. 663, 664 (Pa. 1936)). In other words, where no

underlying tort has been pled, there can be no wrongful-death or survival action.

See Kaczorowski, 184 A. at 664; Pisano, 77 A.3d at 660; see also Moyer v. Rubright,

651 A.2d 1139, 1143 & n.3 (Pa. Super. Ct. 1994). Plaintiff acknowledges that these

claims are derivative of, and rise and fall with, his Section 1983 and common-law

medical professional negligence claims. (See Doc. 48 at 16; see also Doc. 17 at 35,

36). Consequently, we will dismiss the wrongful-death and survival counts as to all

defendants except the correctional officer defendants, Bedford County, and Warden

Nelson.

D. Leave to Amend

Courts must generally grant leave to amend before dismissing a civil

rights claim if a curative amendment is conceivable. Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Except for the legal defects identified by

Judge Mehalchick and not challenged by plaintiff, the deficiencies identified in

this memorandum are factual rather than legal in nature. Curable amendment is

conceivable as to the constitutional and common-law claims against the Fulton

County defendants, Sheriff Reichelderfer, the Bedford County John Doe deputy

sheriffs, the medical defendants, and Constable Sheffield. Therefore, while we will

dismiss the claims against these defendants pursuant to Rule 12(b)(6), we will do so

without prejudice and with leave to amend.

Lastly, we address the issue of placeholder defendants which, based on

the analysis above, are winnowed to five John Doe correctional officers at Bedford

County Prison. Unnamed John and Jane Doe defendants may be allowed to stand

in for the party they represent “until discovery permits the intended defendants to

be installed.” Francis v. Northumberland County, 636 F. Supp. 2d 368, 398 (M.D.

Pa. 2009) (quoting Johnson v. City of Erie, 834 F. Supp. 873, 878 (W.D. Pa. 1993)).

The Bedford County defendants suggest that plaintiff has impermissibly “rendered

a descriptive class [of correctional officers] without any specifics.” (Doc. 34 at 16-

17). We disagree since, as explained above, the universe of potential defendants to

be substituted is quite limited: the claim pertains only to those correctional officers

who monitored McCracken’s phone call to his girlfriend and overheard McCracken

describe the existence and location of a suicide note in their home. We emphasize

that nothing in this opinion shall preclude these John Doe defendants from filing an

appropriate motion to dismiss once they are named, and we encourage plaintiff to

identify the John Doe defendants by name as soon as discovery allows.

IV. Conclusion

For all of the above reasons, we will grant in part and deny in part the

pending motions to dismiss. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: May 28, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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