Cupp v. County of Lycoming

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PAMELA CUPP, individually and

on behalf of the ESTATE OF

ASHLEY CUPP, deceased, et al., CIVIL ACTION NO. 3:20-cv-001784

Plaintiffs, (SAPORITO, M.J.)

v.

COUNTY OF LYCOMING, et al.,

Defendants.

MEMORANDUM

This federal civil rights action arises out of the death of Ashley

Cupp on February 22, 2019. At the time of her death, Cupp was

incarcerated at Lycoming County Prison. She was a pretrial detainee,

awaiting a probation revocation hearing.

This original complaint in this action was filed on September 30,

2020, by the decedent’s mother, Pamela Cupp, appearing through

counsel. She brings this action in her personal capacity, in her role as

administrator of the decedent’s estate, and in her role as guardian of the

decedent’s two minor children, Z.B. and L.C. The plaintiff filed an

amended complaint on December 21, 2020. (Doc. 17.)

The seven-count amended complaint names seventeen defendants.

These include the County of Lycoming and sixteen individual defendants

employed by it at Lycoming County Prison: (1) Brad Shoemaker, warden

of the prison; (2) Ryan Barnes, deputy warden; (3) Christopher Ebner,

deputy warden; (4) Monica Laird, corrections officer; (5) Lacey Swaine,

corrections officer; (6) Maggie Marshall, corrections officer; (7) Jerrica

Mull, corrections officer; (8) Dr. William, Keenan, Jr., a physician and

medical director of the prison; (9) Dr. Janice Schifferli, a physician; (10)

Maelynne Murphy, licensed practical nurse; (11) Erin Dvorscak, licensed

practical nurse; (12) Andrea Hoover, licensed practical nurse; (13) Kim

Poorman, licensed practical nurse; (14) Iesha Glover, licensed practical

nurse; (15) Nicole Dawson, licensed practical nurse; and (16) Tara

Savage, licensed practical nurse. The amended complaint names each of

the individual defendants in both official and personal capacities.

The amended complaint alleges that the decedent was denied

adequate medical care while incarcerated at Lycoming County Prison,

resulting in her death on February 22, 2019. Based on this, the plaintiff

brings multiple § 1983 claims against the defendants on alternative legal

theories, and she brings a supplemental state-law medical negligence

claim against the two physician defendants. Sorting themselves into two

separately represented groups, the defendants have moved to dismiss the

amended complaint for failure to state a claim upon which relief can be

granted. (Doc. 35; Doc. 38.) Both motions are fully briefed and ripe for

decision. (Doc. 39; Doc. 43; Doc. 46; Doc. 49; Doc. 50; Doc. 51.)

I. FACTUAL BACKGROUND

In February 2018, the decedent, Ashley Cupp, pleaded guilty to

third-degree retail theft, for which she was sentenced to serve a period of

3 to 11 months in jail, to be followed by a consecutive 25-month period

under the supervision of a county intermediate punishment program

(“IPP”). Commonwealth v. Cupp, Docket No. CP-41-CR-0000234-2018

(Lycoming Cty. (Pa.) C.C.P.).1 See generally 42 Pa. Cons. Stat. Ann.

§ 9804; Commonwealth v. Wegley, 829 A.2d 1148, 1152–53 (Pa. 2003)

(discussing IPP sentencing, a “sentencing option . . . between probation

and incarceration”).

In September 2018, for reasons that are not alleged in the amended

1 In addition to the allegations of the amended complaint, we have

considered the publicly available docket record of the decedent’s state

court criminal proceedings. A district court, of course, may properly take

judicial notice of state court records, as well as its own. See Fed. R. Evid.

201; Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child

& Youth Servs. of Chester Cty., 108 F.3d 486, 498–99 (3d Cir. 1997);

Pennsylvania v. Brown, 373 F.2d 771, 778 (3d Cir. 1967).

complaint or evident from the state court records, a bench warrant was

issued for Cupp’s arrest. See Commonwealth v. Cupp, Docket No. CP-41-

CR-0000234-2018 (Lycoming Cty. (Pa.) C.C.P.). On or about October 25,

2018, Cupp was taken into custody and incarcerated at Lycoming County

Prison as a pretrial detainee, pending a probation violation hearing. See

id. On February 22, 2019, while in custody, Cupp died due to

complications of a cardiac condition.

Upon entering Lycoming County Prison in October 2018, Cupp was

screened for medical and mental health conditions. She suffered from

serious and known medical conditions, including an aortic valve

replacement, cardiomyopathy, bipolar disorder, depression, anxiety,

post-traumatic stress disorder, and opioid dependence. In particular, she

had ongoing heart-related symptoms, and she had been prescribed

various daily medications by her cardiologist. She also had a known

history of significant and serious mental health conditions and suicide

attempts.

Although Cupp requested her medications, including in particular

those prescribed by her cardiologist, she did not receive them consistently

at Lycoming County Prison. Throughout her incarceration there, Cupp

complained of and requested medical care for various medical problems,

including swollen and painful legs, red lines on her legs, numbness in her

legs and body, difficulty breathing, chest pain, nausea, general malaise,

and high blood pressure. While incarcerated, she was observed by

unidentified inmates, jail staff, and medical staff as having significant

physical problems, including swelling, difficulty walking, falling, crying

out in pain, crying out for help, having ice-cold legs, being drenched in

sweat, difficulty breathing, gasping for air, extreme difficulty standing,

inability to get up to eat, inability to get up to shower, and inability to

get up to use the restroom. Cupp repeatedly requested medical assistance

while incarcerated, both verbally and in writing, and both directly and

indirectly through other inmates, but she was not provided with any

assistance by jail or medical staff. She complained that her medications

were not working and were making her feel funny. Cupp’s frequent cries

of pain and for help were ignored by unspecified defendants.

Cupp’s physical condition deteriorated such that other inmates

found it necessary to assist her by helping her get to the shower, picking

her up after falls, helping her to get dressed, brushing her hair, rubbing

her back, retrieving items for her, getting her water, helping her elevate

her painfully swollen legs, helping her submit medical requests, showing

jail staff the red lines on her legs, telling the jail staff that she was having

trouble breathing, asking jail staff to feel her ice-cold legs, placing rags

soaked in hot water on her legs, and obtaining cloths soaked in cold water

for her head. Due to feeling unwell, being in pain, and being too weak to

get out of her bed, Cupp ate little while incarcerated.

At the time she entered the Lycoming County Prison, Cupp was

detoxing. Despite knowledge that she was detoxing, unspecified

defendants failed to properly place her in a detoxification protocol.

Despite her history of mental health conditions and a known history of

suicide attempts, she was not referred for mental health evaluation or

treatment, and she did not receive any psychiatric care or medication.

Despite her serious medical conditions, Cupp was temporarily

transferred several times to other county prisons, purportedly due to

overcrowding at Lycoming County Prison. Despite her serious medical

conditions, Cupp was placed in the general population while at Lycoming

County Prison. Despite her serious medical conditions, Cupp was

assigned a top bunk and placed on the upper tier of cells at Lycoming

County Prison, requiring her to use stairs to access other locations,

including the restroom and shower.

In the days before her death, Cupp was scheduled for the extraction

of multiple teeth, but her dental treatment provider refused to perform

the extractions until her medical problems—specifically her cardiac

issues—were evaluated and treated. Despite being aware of Cupp’s

continuing cardiac issues and the dental treatment provider’s concerns,

unspecified defendants failed to provide necessary medical treatment.

Despite her serious medical conditions and obviously declining

health, Cupp was not sent for medical treatment outside the prison.

Despite her serious medical conditions and obviously declining health,

Cupp was not provided with necessary medications. She was not

counseled regarding the taking of her medications, nor were her

medications reviewed to determine whether they should be adjusted.

Throughout the night of her death, Cupp screamed and cried out

for help, she complained of not feeling well and being in pain, and she

was gasping for air. No one from the jail’s correctional or medical staff

responded to Cupp’s cries for help. Her demise was not discovered until

she failed to respond for morning head count on February 22, 2019.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The plaintiff has brought this federal civil rights action primarily

under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim,

the plaintiff must establish that the defendant, acting under color of state

law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct, time, place, and persons responsible

for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005).

Here, the plaintiff has asserted federal civil rights claims under

several alternative theories of liability. In Count I, she claims that

unspecified defendants were deliberately indifferent to the decedent’s

serious medical needs while incarcerated, in violation of the decedent’s

Fourteenth Amendment substantive due process rights,2 and in Count II,

she seeks to impose municipal liability on the County and supervisory

liability on Shoemaker, Barnes, Ebner, and Keenan for that same

2 The parties dispute whether this action involves the decedent’s

rights under the substantive due process clause of the Fourteenth

Amendment or under the cruel and unusual punishment clause of the

Eighth Amendment. The plaintiff has relied on the Fourteenth

Amendment, while the defendants argue that, as a probation violator,

the decedent’s rights arose out of the Eighth Amendment instead. But

until a hearing is held and parole is actually revoked, “a parole violator

is no different from a pretrial detainee who is merely awaiting trial and

who, until conviction and sentencing, cannot commence service of a term

of imprisonment.” United States v. Dobson, 585 F.2d 55, 59 (3d Cir. 1978);

see also Rosario v. Strawn, Civil Action No. 19-1040, 2020 WL 6730975,

at *6 (W.D. Pa. July 29, 2020). Thus, the decedent had the status of a

pretrial detainee—not a convicted inmate—at the time of the underlying

events, and the plaintiff has properly pleaded violations of her

substantive due process rights under the Fourteenth Amendment.

conduct by their employees or subordinates.3 In Count III, she claims

that unspecified defendants failed to intervene to protect the decedent

from the deliberate indifference of other, unspecified defendants to the

decedent’s serious medical needs, in violation of the decedent’s

Fourteenth Amendment substantive due process rights, and in Count IV,

she seeks to impose municipal liability on the County and supervisory

liability on Shoemaker, Barnes, Ebner, and Keenan for that same

conduct by their employees or subordinates. In Count V, she claims that

unspecified defendants failed to protect the decedent from her own

suicidal action, in violation of the decedent’s Fourteenth Amendment

substantive due process rights, and in Count VI,4 she seeks to impose

municipal liability on the County and supervisory liability on

Shoemaker, Barnes, Ebner, and Keenan for that same conduct by their

employees or subordinates.5

3 In Counts II, IV, and VI, the plaintiff has alleged that the warden,

both deputy wardens, and the medical director were “chief policymakers”

for the jail, against whom she asserts § 1983 supervisory liability claims.

4 Count VI is mislabeled in the amended complaint as a second

“Count IV.”

5 The amended complaint includes a Count VII as well—mislabeled

as a second “Count V”—asserting state-law medical negligence claims

against the two physician defendants, Dr. Keenan and Dr. Schifferli.

A. Official Capacity Claims

The amended complaint names all of the sixteen individual

defendants in both official and personal capacities. It names their

employer, the County of Lycoming, as a defendant to all counts as well.

But “[o]fficial capacity actions are redundant where the entity for which

the individuals worked is named.” Highhouse v. Wayne Highlands Sch.

Dist., 205 F. Supp. 3d 639, 646 (M.D. Pa. 2016) (dismissing official

capacity claims against municipal officials as redundant when

municipality was also named as a defendant). “As long as the government

entity receives notice and an opportunity to respond, an official-capacity

suit is, in all respects other than name, to be treated as a suit against the

entity.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985).

Accordingly, the plaintiff’s claims against all sixteen individual

defendants in their official capacity will be dismissed as redundant

because their employer—Lycoming County—is also named in the

amended complaint, pursuant to the Court’s inherent authority to control

its docket and avoid duplicative claims. See Dewees v. Haste, 620 F. Supp.

2d 625, 630 (M.D. Pa. 2009) (dismissing official-capacity claims against

county prison officials where county was also named as a defendant); see

also Janowski v. City of N. Wildwood, 259 F. Supp. 3d 113, 131–32

(D.N.J. 2017); Korth v. Hoover, 190 F. Supp. 3d 394, 402–03 (M.D. Pa.

2016); Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423,

431–32 (E.D. Pa. 1998).

B. Individual Defendants

The amended complaint brings personal-capacity § 1983 damages

claims against sixteen different individual defendants. The amended

complaint identifies each of these sixteen individual defendants by name

and job title. Four of the defendants—Shoemaker, Barnes, Ebner, and

Keenan—are identified as “chief policymakers” in the three municipal

liability counts.6 The amended complaint alleges the factual

circumstances giving rise to the plaintiff’s federal civil rights claims,

mostly in the passive tense, but it ascribes no conduct whatsoever to any

of the individual named defendants. All allegedly wrongful conduct is

attributed only generally to “Defendants,” “prison employees,” “medical

providers,” “jail or medical staff,” and “no one.”

“This type of pleading fails to satisfy Rule 8 ‘because it does not

6 Dr. Keenan is also alleged to be the “medical director in charge of

maintaining the health care system in the Lycoming County Prison” in

the medical negligence count.

place Defendants on notice of the claims against each of them.’” Mills v.

Ethicon, Inc., 406 F. Supp. 3d 363, 386 (D.N.J. 2019); see also Caristo v.

Blairsville-Saltsburg Sch. Dist., 370 F. Supp. 3d 554, 569 n.21 (W.D. Pa.

2019) (“Without separately alleging the conduct of each Defendant,

Defendants are not on notice of their conduct.”). See generally Prater v.

Am. Heritage Fed. Credit Union, 351 F. Supp. 3d 912, 916 (E.D. Pa. 2019)

(“Rule 8 requires that pleadings provide enough information to put a

defendant on sufficient notice to prepare their defense and also ensure

that the Court is sufficiently informed to determine the issue.”) (internal

quotation marks omitted). Group pleading such as this, lumping sixteen

defendants together without setting forth what each particular

defendant is alleged to have done, is impermissibly vague. See Mills, 406

F. Supp. 3d at 386–87. “Alleging that ‘Defendants’ undertook certain

illegal acts—without more—injects an inherently speculative nature into

the pleadings, forcing both the Defendants and the Court to guess who

did what to whom when. Such speculation is anathema to contemporary

pleading standards.” Id. at 387.

Moreover, this vague pleading fails to state a § 1983 claim upon

which relief can be granted. It is well established that “[c]ivil rights

claims cannot be premised on a theory of respondeat superior. Rather,

each named defendant must be shown, via the complaint’s allegations, to

have been personally involved in the events or occurrences which

underlie a claim.” Millbrook v. United States, 8 F. Supp. 3d 601, 613 (M.D.

Pa. 2014) (citation omitted) (emphasis added). As previously explained

by the Third Circuit:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs . . . . [P]ersonal

involvement can be shown through allegations of

personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Although a

supervisor cannot encourage constitutional violations, a supervisor has

“no affirmative constitutional duty to train, supervise or discipline so as

to prevent such conduct.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.

1986).

Here, there are no specific allegations regarding the conduct of any

individual defendant. Absent any specific allegations of personal

involvement by these defendants, the plaintiff has failed to state a

plausible § 1983 claim against any of them. See Simonton v. Ryland-

Tanner, 836 Fed. App’x 81, 84 (3d Cir. 2020) (per curiam); Evancho, 423

F.3d at 353; see also Caristo, 370 F. Supp. 3d at 569 n.21 (“Plaintiff must

plead facts demonstrating the specific personal involvement of each

Individual Defendant as to any Constitutional deprivations she alleges.

Group pleading as to such matters will not suffice.”).

Accordingly, the plaintiff’s claims against all sixteen individual

defendants in their personal capacity will be dismissed as impermissibly

vague, pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, and

for failure to state a claim upon which relief can be granted, pursuant to

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

C. Municipal Liability: Denial of Adequate Medical Care

Count II of the amended complaint seeks to hold Lycoming County

liable for the allegedly unconstitutional conduct of its employees or

agents in connection with the death of Ashley Cupp.

“On its face, § 1983 makes liable ‘every person’ who deprives

another of civil rights under color of state law.” Burns v. Reid, 500 U.S.

478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In

Monell v. Department of Social Services, 436 U.S. 658 (1978), the

Supreme Court of the United States established that municipalities and

other local governmental units are included among those “persons”

subject to liability under § 1983. Id. at 690. Lycoming County is such a

municipality subject to liability as a “person” under § 1983. See id. at 694;

Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013).

But “[u]nder Monell, a municipality cannot be subjected to liability

solely because injuries were inflicted by its agents or employees.” Jiminez

v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).

Rather, a municipality can be liable under § 1983 only if the conduct

alleged to be unconstitutional either “implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers” or is “visited pursuant to

governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decision-making channels.”

Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.”

Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy,

attribute it to the [municipality] itself, and show a causal link between

execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

As the Third Circuit has explained:

There are three situations where acts of a government

employee may be deemed to be the result of a policy or

custom of the governmental entity for whom the

employee works, thereby rendering the entity liable

under § 1983. The first is where the appropriate officer

or entity promulgates a generally applicable statement

of policy and the subsequent act complained of is

simply an implementation of that policy. The second

occurs where no rule has been announced as policy but

federal law has been violated by an act of the

policymaker itself. Finally, a policy or custom may also

exist where the policymaker has failed to act

affirmatively at all, though the need to take some

action to control the agents of the government is so

obvious, and the inadequacy of existing practice so

likely to result in the violation of constitutional rights,

that the policymaker can reasonably be said to have

been deliberately indifferent to the need.

Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)

(citations, internal quotation marks, and brackets omitted).

Here, the amended complaint has alleged the third type of

municipal liability—a complete failure by the County to impose any

policy at all with regard to the immediate medical treatment and

medication needs of inmates with serious medical conditions. The

allegations of the amended complaint skate perilously close to being

conclusory. See, e.g., Yoast v. Pottstown Borough, 437 F. Supp. 3d 403,

441 (2020) (“Yoast’s . . . allegation that PrimeCare does not have a policy

‘to address the medical needs of inmates with serious medical conditions’

is a conclusory allegation which the Court does not credit.”). But based

on the facts alleged with respect to the utter failure of jail and medical

staff to respond Cupp’s entreaties for medical care over the course of

months, despite her allegedly well known serious medical needs, we find

the allegations sufficient to support a plausible Monell claim against the

County under this third category identified in Natale. See Kitchen v.

Clinton Cty., No. 3:19-CV-1936, 2020 WL 3052864, at *4–*5 (M.D. Pa.

June 8, 2020).

Accordingly, with respect to Count II of the amended complaint,

asserting a municipal liability claim against Lycoming County based on

the deliberate indifference of its employees or agents to the decedent’s

serious medical needs, the County’s motion to dismiss will be denied.

D. Municipal Liability: Failure to Intervene

The municipal liability claim asserted in Count IV of the amended

complaint is identical to the municipal liability claim asserted in Count

II; other than its heading, Count IV is a verbatim reproduction of Count

II. “As a matter of judicial economy, courts should dismiss a claim if it is

duplicative of another claim in the same suit.” Wultz v. Islamic Republic

of Iran, 755 F. Supp. 2d 1, 81 (D.D.C. 2010). “Duplicative claims are those

that stem from identical allegations, that are decided under identical

legal standards, and for which identical relief is available.” Id. Because

Count IV “does not present any legal or factual theories that are not

already subsumed in” Count II, we will dismiss Count IV as duplicative.

Rodriguez v. Lab. Corp. of Am. Holdings, 13 F. Supp. 3d 121, 128 (D.D.C.

2014).

Accordingly, Count IV of the amended complaint will be dismissed

as duplicative, pursuant to the Court’s inherent authority to control its

docket and avoid duplicative claims.

E. Municipal Liability: Failure to Protect from Suicide

Count VI of the amended complaint asserts a municipal liability

claim against Lycoming County based on the deliberate indifference of

its employees or agents to the particular vulnerability to suicide of the

decedent. See generally Colburn v. Upper Darby Twp., 946 F.2d 1017,

1023 (3d Cir. 1991) (outlining elements of a prison suicide § 1983 claim).

But, while the decedent may have had a history that included prior

suicide attempts, there is no allegation in the amended complaint that

she committed or attempted to commit suicide during the period of

incarceration at issue in this case. In the absence of the allegation of an

attempt to commit suicide or any injury whatsoever to the decedent that

resulted from the alleged conduct of the County and its employees with

respect to her particular vulnerability to suicide, we find the plaintiff has

failed to state a plausible claim of deliberate indifference to serious

medical needs based on the decedent’s particular vulnerability to suicide.

See Stribling v. Brock, Case No. 15-cv-03336-YGR (PR), 2017 WL 950803,

at *12–*13 (N.D. Cal. Mar. 10, 2017) (granting summary judgment where

inmate made no attempt to commit suicide).

Accordingly, Count VI of the amended complaint will be dismissed

for failure to state a claim upon which relief can be granted, pursuant to

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

F. State-Law Medical Negligence Claim

In Count VII of the amended complaint, the plaintiff asserts

medical negligence claims against Dr. Keenan and Dr. Schifferli, both of

whom are alleged to be County employees.7 As municipal employees,

these defendants are immune from medical negligence claims under the

Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa.

Cons. Stat. Ann. § 8541 et seq. See Giandonato v. Montgomery Cty., No.

Civ. A. 97-CV-0419, 1998 WL 314694, at *6 (E.D. Pa. May 22, 1998)

(finding physician contracted to provide psychiatric services to inmates

at county jail was immune from medical malpractice claims under the

PSTCA); Daniel v. City of Philadelphia, Civ. A. No. 88-6849, 1989 WL

45752, at *2 (E.D. Pa. May 1, 1989) (“Local governments and their

employees are immune from claims of medical malpractice under [the

7 In her brief in opposition, the plaintiff requests leave to amend

this claim, pointing to a margin note in the physician defendants’ brief in

which they stated that they are not county employees, but rather provide

medical services to inmates under a contract with the county. We note

that whether the physicians are considered “employees” who fall within

the scope of PTSCA immunity or “independent contractors” who do not

appears to be a fact-intensive question. Compare Giandonato v.

Montgomery Cty., No. Civ. A. 97-CV-0419, 1998 WL 314694, at *6 (E.D.

Pa. May 22, 1998) (finding physician who provided psychiatric services

to inmates at county jail under contract was entitled to PTSCA

immunity), with Helsel v. Complete Care Servs., L.P., 797 A.2d 1051,

1054–58 (Pa. Commw. Ct. 2002) (finding administrator of county-owned

health care facility was an independent contractor not entitled to PTSCA

immunity). We have granted leave to amend more generally below, but

in response to the plaintiff’s express request, we note that amendment of

this claim does not appear to be futile.

PSTCA].”); Henagan v. Katz, 509 A.2d 1387, 1388 (Pa. Commw. Ct. 1986)

(finding medical negligence claim against physician employed by city

agency was barred by the PSTCA).

Accordingly, Count VII of the amended complaint will be dismissed

for failure to state a claim upon which relief can be granted, pursuant to

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

G. Leave to Amend

The Third Circuit has instructed that, if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile, Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004). In her briefs, the plaintiff has requested leave to amend if claims

are dismissed, and it does not appear to us that amendment would be

futile. Therefore, the amended complaint will be dismissed with leave to

amend.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions to dismiss will

be granted in part and denied in part. All official-capacity claims against

the individual defendants and Count IV of the amended complaint will

be dismissed as duplicative. All personal-capacity § 1983 claims against

the individual defendants will be dismissed as impermissibly vague and

for failure to state a claim upon which relief can be granted. Counts VI

and VII of the complaint will be dismissed for failure to state a claim

upon which relief can be granted. The plaintiff will be granted leave to

file an amended complaint.

An appropriate order follows.

Dated: September 30, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge