McCullough v. Clinton County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DARLA MCCULLOUGH, Administratrix

of the Estate of John Milford McCullough,

CIVIL ACTION NO. 4:23-CV00171

Plaintiff,

v. (MEHALCHICK, J.)

CLINTON COUNTY, et al.,

Defendants.

MEMORANDUM

This action was commenced by Darla McCullough (“Plaintiff”) as the Administratrix

of the Estate of John Milford McCullough (“Mr. McCullough”) by filing a complaint against

Defendants Clinton County (“the County”), Wellpath, LLC (“Wellpath”), Jeremy Shank

(“Officer Shank”), Lieutenant Muthler (“Officer Muthler”), Officer Etters, Officer Iantha

King (“Officer King”), Officer Young, William Detterline (“Nurse Detterline”), and

Christina Mazzulla (“Nurse Mazzulla”) on January 31, 2023. (Doc. 1). The operative

amended complaint was filed on September 11, 2023, against the aforementioned Defendants

and Supplemental Health Care Services, Inc. (“SHC”) (collective, Defendants”). (Doc. 58).

The amended complaint alleges violations of the Fourteenth Amendment pursuant 42 U.S.C.

§ 1983 (“§ 1983”), the Americans with Disabilities Act, and the Rehabilitation Act. (Doc. 58).

Presently before the Court are four motions to dismiss filed by Defendants. (Doc. 64; Doc.

64; Doc. 65; Doc. 76).

I. BACKGROUND AND PROCEDURAL HISTORY

The following factual summary is taken from the amended complaint. This case arises

from the death of Mr. McCullough while he was in the care and custody of Clinton County

Correctional Facility (“CCCF”). Plaintiff alleges that at the time of his incarceration, Mr.

McCullough had “a particular vulnerability to suicide and demonstrated a strong likelihood

that he would attempt suicide.” (Doc. 58, ¶ 102). On October 18, 2021, a family member of

Mr. McCullough filed a 302 application for the involuntary emergency examination and

treatment of Mr. McCullough. (Doc. 58, ¶ 25). 911 was called and local police and troopers

from Pennsylvania State Police-Lamar arrived at Mr. McCullough’s home to find him

barricaded with a loaded shotgun and plans to kill himself. (Doc. 58, ¶ 26). Mr. McCullough

also expressed intent to kill Plaintiff “so she was not left behind.” (Doc. 58, ¶ 29). Ultimately,

Mr. McCullough was convinced to be transported by police to UPMC Williamsport. (Doc.

58, ¶ 31). There, he was evaluated in the emergency room and noted to be depressed, suicidal,

and “severely mentally disabled and in need of treatment.” (Doc. 58, ¶¶ 32-34). Mr.

McCullough reported that he intended to shoot himself and if not for the “police involvement

he would have committed suicide by gunshot.” (Doc. 58, ¶¶ 32, 34). From UPMC

Williamsport, Mr. McCullough was transferred to UPMC Altoona, where again he was

documented to be suicidal. (Doc. 58, ¶ 37).

Mr. McCullough was discharged from UPMC Altona and transported to CCCF on

October 22, 2021. (Doc. 58, ¶ 39). According to CCCF intake documentation, Mr.

McCullough appeared to be suicidal and was experiencing thoughts of self-harm. (Doc. 58, ¶

39). According to the amended complaint, at this time the County, Wellpath, and their staff

were informed of the events of October 18, 2021, and that Mr. McCullough had been

committed under a 302 order due to suicidal behaviors. (Doc. 58, ¶ 43). Still, after being

triaged and screened, Mr. McCullough was not placed on suicide watch. (Doc. 58, ¶¶ 45-49).

Instead, Mr. McCullough was placed in general population where he was given a mat, two

sheets, a blanket, and assigned to a cell with a cellmate. (Doc. 58, ¶¶ 50, 59, 71).

On October 24, 2021, Mr. McCullough’s cellmate reported that Mr. McCullough had

fallen out of his top bunk and onto the ground of their cell. (Doc. 58, ¶ 72). According to

Plaintiff, Mr. McCullough’s fall was an attempt to injure or kill himself, as evidenced by

injuries specifically to his neck. (Doc. 58, ¶ 81). Still, upon his return to CCCF, Mr.

McCullough was not placed on suicide watch. (Doc. 58, ¶ 82). Mr. McCullough was instead

put on a behavioral watch, where he was to be monitored under constant video surveillance.

(Doc. 58, ¶¶ 83-84, 86-87). According to Plaintiff, the correctional officers were remiss in their

duties to survey Mr. McCullough. (Doc. 58, ¶¶ 86-87). On October 26, 2021, Ms. McCullough

hung himself from a pipe with a bed sheet. (Doc. 58, ¶ 87). Plaintiff asserts that Mr.

McCullough’s death is recorded on video. (Doc. 58, ¶ 88).

In her amended complaint, Plaintiff asserts the following Counts: Count I: Fourteenth

Amendment Deliberate Indifference against Officer Muthler, Officer King, Officer Etters,

Officer Young, Officer Shank, Nurse Detterline, and Nurse Mazzulla; Count II: Fourteenth

Amendment Deliberate Indifference against the County, Wellpath, and SHC; Count III:

Violation of the Americans with Disabilities Act (“ADA”) against the County; Count IV:

Violation of the Rehabilitation Act (“RA”) against the County; and Count V: Fourteenth

Amendment State-Created Danger against the County and Officer Shank. (Doc. 58). As

relief, Plaintiff seeks damages, including punitive damages, attorneys’ fees and costs. (Doc.

58, at 27-28).

On September 24, 2023, Nurse Detterline filed a motion to dismiss. (Doc. 63). On

September 25, 2023, Officer Etters, Officer King, Officer Muthler, Officer Shank, and Officer

Young (collectively, “Correctional Officer Defendants”) and the County (collectively,

“County Defendants”) filed a motion to dismiss. (Doc. 64). On September 25, 2023, Nurse

Mazzulla and Wellpath (collectively, “Wellpath Defendants”) filed a motion to dismiss.

(Doc. 65). On October 9, 2023, Nurse Detterline, County Defendants, and Wellpath

Defendants each filed a brief in support of their respective motions. (Doc. 67; Doc. 68; Doc.

69). On October 13, 2023, Plaintiff filed a brief in opposition to both Nurse Detterline and

Wellpath Defendants’ motions to dismiss. (Doc. 70; Doc. 71). On October 20, 2023, Plaintiff

filed a brief in opposition to County Defendants’ motion to dismiss. (Doc. 72). County

Defendants filed a reply brief on November 13, 2023. (Doc. 77). Neither Nurse Detterline nor

the Wellpath Defendants have opted to file a reply brief and the time to do so has passed.

On November 13, 2023, SHC filed a motion to dismiss, or in the alternative, a motion

for summary judgment. (Doc. 76). On November 27, 2023, SHC filed a brief in support of

their motion. (Doc. 78). On December 11, 2023, Plaintiff filed a brief in opposition. (Doc.

79). On December 26, 2023, SHC filed a reply brief. (Doc. 80). Accordingly, all four motions

to dismiss are ripe and ready for discussion. (Doc. 63; Doc. 64; Doc. 65; Doc. 76). For the

following reasons, Nurse Detterline, Wellpath Defendants, and SHC’s motions to dismiss

will be DENIED. (Doc. 63; Doc. 65; Doc. 76). County Defendants’ motion to dismiss will

be DENIED in part and GRANTED in part. (Doc. 64).

II. LEGAL STANDARDS

A. MOTION TO DISMISS

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 are 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)). Although a court must accept the factual allegations in a 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)). Additionally, a court

need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated

Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

In Ashcroft v. Iqbal, the United States Supreme Court held that, when considering a

motion to dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” 556 U.S. 662, 679 (2009).

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

statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating a

motion to dismiss, a 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).

B. 42 U.S.C. SECTION 1983

Plaintiff asserts federal civil rights claims pursuant to 42 U.S.C. § 1983, which provides

a private cause of action for violations of federal constitutional rights. The statute 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 City v. Tuttle, 471 U.S. 808, 816 (1985). To succeed on

a 42 U.S.C. § 1983 claim, a plaintiff must demonstrate 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).

III. DISCUSSION

The four motions to dismiss raise common issues. Nurse Detterline, County

Defendants, Wellpath Defendants, and SHC all request this Court dismiss Plaintiff’s claims

for deliberate indifference against them, contained in Count I and Count II of the amended

complaint. (Doc. 67, at 6; Doc. 68, at 2; Doc. 69, at 5; Doc. 78, at 5). County Defendants

additionally request this Court dismiss Count III and Count IV against the County, in which

Plaintiff respectively alleges violations of the ADA and RA. (Doc. 68, at 2). Lastly, County

Defendants argue Plaintiff’s Fourteenth Amendment State Created Danger claims against

Shank and the County in Count V should also be dismissed. (Doc. 68, at 2).

Plaintiff maintains she has sufficiently alleged each of the claims contained in her

amended complaint. (Doc. 70; Doc. 71; Doc. 72; Doc. 79). The Court will address the

deliberate indifference issues together, grouping the individual defendants and the entities.

The Court will then address the remaining claims and arguments.

A. COUNT I: FOURTEENTH AMENDMENT DELIBERATE INDIFFERENCE

AGAINST INDIVIDUAL DEFENDANTS

In Count I of the amended complaint, Plaintiff asserts her a Fourteenth Amendment

deliberate indifference claim against the individual defendants Nurse Detterline, Nurse

Mazzulla, Officer King, Officer Etters, Officer Muther, Officer Shank, and Officer Young.

(Doc. 58, at 16). The suicide of a pretrial detainee can support a recovery in a § 1983 action

as a violation of the Fourteenth Amendment to the United States Constitution.1 Colburn v.

Upper Darby Twp., 946 F.2d 1017, 1023 (1991) (“Colburn II”); Plasko v. City of Pottsville, 852 F.

Supp. 1258 (E.D. Pa. 1994); Simmons v. City of Phila., 947 F.2d 1042, 1067 (3d Cir. 1991).

Such claims “present [ ] difficult issues because no state actor directly inflicted harm” on the

prisoner. Swan by Carello v. Daniels, 923 F. Supp. 626, 631 (D. Del. 1995) (quoting Colburn II,

946 F.2d at 1023). Therefore, a plaintiff must show that state officials were deliberately

indifferent in failing to prevent the self-inflicted harm. Colburn II, 946 F.2d at 1023. When a

plaintiff seeks to hold a custodial official liable for failing to prevent an inmate’s suicide,

whether a pre-trial detainee or a convicted prisoner, the plaintiff must show: (1) the individual

had a particular vulnerability to suicide, meaning that there was strong likelihood, rather than

a mere possibility, of a suicide attempt; (2) the custodial official knew or should have known

of that vulnerability; and (3) the official acted with reckless indifference to the individual’s

particular vulnerability. Alexander v. Monroe County, 734 F. Appx. 801, 804 (3d Cir. 2018);

Colburn II, 946 F.2d at 1023.

1 The claims of pre-trial detainees implicate the Fourteenth Amendment rather than

the Eighth Amendment’s cruel and unusual punishment provision. Pierre v. Richards, No.

4:23-CV-02044, 2024 WL 643294, at *5 (M.D. Pa. Feb. 15, 2024). “However, it does not

appear that the United States Court of Appeals for the Third Circuit has established or

adhered to a different standard with respect to Fourteenth Amendment pretrial detainee

medical care claims versus those raised by incarcerated individuals under the Eighth

Amendment.” Pierre, 2024 WL 643294, at *5. Accordingly, the Court will apply existing

Eighth Amendment jurisprudence as well as Fourteenth Amendment case law to Plaintiff’s

Fourteenth Amendment prison suicide deliberate indifference claims. Pierre, 2024 WL

643294, at *5.

The first element which requires a showing that the detainee had a “particular

vulnerability to suicide” “speaks to the degree of risk inherent in the detainee's condition.”

Colburn II, 946 F.2d at 1024. With presence of such risk, the second element requires the

plaintiff to either show subjective knowledge of the vulnerability or that the official should

have known that the detainee was particularly vulnerable. Colburn II, 946 F.2d at 1024-25.

“Should have known,” in this context, goes beyond knowledge with ordinary prudence or

negligence but is less than subjective appreciation of the risk. Colburn II, 946 F.2d at 1025

(explaining that a defendant’s failure to recognize large prominent scars on a decedent’s

wrists, elbows, and neck as indicative of suicidal tendencies amounted only to negligence

precluding liability) (citing Freedman v. City of Allentown, 853 F.2d 1111, 1116 (3d Cir. 1988)).

Element three, deliberate or reckless indifference, is a willingness to ignore a foreseeable

danger to the detainee’s vulnerability, or conscience-shocking behavior in unhurried

situations. Kedra v. Schroeter, 876 F.3d 424, 446 (3d Cir. 2017) (quoting Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997); Vargas v. City of Phila., 783 F.3d 962, 973 (3d Cir.

2015)).

1. Mr. McCullough’s Particular Vulnerability to Suicide

First, the Court must determine whether Plaintiff has alleged Mr. McCullough had a

particular vulnerability to suicide. To meet her pleading burden, Plaintiff must allege facts

sufficient to support there was a “strong likelihood” rather than a mere possibility that self-

harm would occur to Mr. McCullough. See Hinton v. United States, No. 4:14-CV-0854, 2015

WL 737584, at *5 (M.D. Pa. Feb. 20, 2015) (a plaintiff must establish that there is a “strong

likelihood, rather than a mere possibility, that self-inflicted harm will occur.” (quoting Colburn

II, 946 F.2d at 1024)). To constitute a “strong likelihood” the risk must be so obvious that a

lay person would easily recognize the necessity for preventative action. Palakovic v. Wetzel, 854

F.3d 209, 222 (3d Cir. 2017) (quoting Colburn II, 946 F.2d at 1025). Courts have found this

threshold is met where a decedent was at some time diagnosed with depression and suicidal

tendencies, had previously attempted self-harm, had been hospitalized for psychiatric care,

and recently had expressed suicidal ideation. See, e.g., Redclift v. Schuylkill Cnty., No. 4:21-CV-

1866, 2022 WL 3973824, at *5 (M.D. Pa. Aug. 31, 2022) (concluding plaintiff had established

the decedent had a particular vulnerability to suicide where the complaint alleged decedent

suffered from multiple mental illnesses, suicidal tendencies, had a history of past suicide

attempts, and has been hospitalized for psychiatric treatment in the past). “When a mentally

ill, depressed person has attempted to kill himself multiple times [and] has engaged in self-

harm, ... it cannot be said as a matter of law that the risk of suicide is nothing more than a

‘mere possibility.’” Palakovic, 854 F.3d at 230.

Plaintiff has alleged Mr. McCullough was “involuntarily hospitalized pursuant to a

302 order for suicidal ideations immediately preceding his commitment to CCCF.” (Doc. 58,

¶ 171). Plaintiff has alleged that Mr. McCullough had a documented psychiatric history and

had expressed thoughts about suicide along with a plan to kill himself to medical professionals

just days before his suicide. (Doc. 58, ¶ 52). Further, Plaintiff alleges Mr. McCullough

attempted to kill himself while at CCCF. (Doc. 58, ¶¶ 76, 77, 81). This attempt resulted in

Mr. McCullough falling from his top bunk, being hospitalized briefly, and injuring his neck.

(Doc. 58, ¶¶ 76, 77, 81). Lastly, while Mr. McCullough was not placed on suicide watch at

CCCF, Plaintiff alleges he was placed on a behavioral watch and assigned to a cell with

constant video observation because of his behaviors and documented mental history. (Doc.

58, ¶¶ 85-87). Combined, these allegations are sufficient to establish Mr. McCullough had a

particular vulnerability to suicide, thus satisfying prong one of the deliberate indifference

analysis as to all individually named defendants. See Brown v. Monsalud, No. 1:20-CV-0849,

2021 WL 4502238, at *6 (M.D. Pa. Sept. 30, 2021) (prisoner-plaintiff with extensive mental

health history, past suicide attempts, and need for vision sustaining medication sufficiently

pleaded his particular vulnerability to suicide to set forth a plausible deliberate indifference

claim); see Mullin v. Balicki, No. 11-CV-247, 2019 WL 2315044, at *5 (D.N.J. May 31, 2019)

(finding that a “documented history of suicidal behavior [along with a history of mental illness

and other suggestions] clearly indicates that there was a ‘strong likelihood, rather than a mere

possibility that self-inflicted harm would occur.’”); see Stuart v. Pierce, No. 17-934, 2022 WL

605821, at *6 (D. Del. Feb. 24, 2022) (decedent that had been placed on suicide watch and

presented other indications of suicidal tendencies demonstrated a particular vulnerability to

suicide); see Zheng v. Palakovich, No. 4:09-CV-1028, 2010 WL 1508521, at *5 (M.D. Pa. Apr.

13, 2010) (concluding plaintiff pled a particular vulnerability to suicide where he had been

diagnosed with depression and suicidal tendencies, requested psychiatric help on multiple

occasions and was concerned with the danger he posed to himself). Accordingly, Plaintiff’s

claim as to each individual defendant will turn on whether that defendant knew or should

have known of Mr. McCullough’s particular vulnerability to suicide, and whether that

defendant was recklessly indifferent to Mr. McCullough’s particular vulnerability to suicide.

Alexander, 734 F. App'x at 804.

2. Knowledge of Mr. McCullough’s Vulnerability to Suicide

To satisfy prong two of the deliberate indifference analysis, “the plaintiff must plead

facts that show that the strong likelihood of suicide was so obvious that a layperson would

easily recognize the necessity for preventative action.” Colburn, 946 F.2d at 1025. “It is not

necessary that the custodian have a subjective appreciation of the detainee's ‘particular

vulnerability. . . [n]evertheless, there can be no reckless or deliberate indifference to that risk

unless there is something more culpable on the part of the officials than a negligent failure to

recognize the high risk of suicide.’” McAndrew v. Northumberland Cnty., No. 4:22-CV-00834,

2023 WL 5351994, at *4 (M.D. Pa. Aug. 21, 2023) (quoting Woloszyn v. Cnty. of Lawrence, 396

F.3d 314, 320 (3d Cir. 2005)). The Court will review the application of prong two as to each

individual defendant. When determining whether a custodial official has knowledge of an

inmate’s particular vulnerability to suicide, courts look to whether the official has knowledge

of past suicide attempts or a “psychiatric diagnosis identifying suicidal propensities.”

Palakovic, 854 F.3d at 222-23 (quoting Colburn II, 946 F.2d at 1024-25).

a. Nurse Detterline

Plaintiff has plausibly alleged that Nurse Detterline had actual knowledge of Mr.

McCullough’s particular vulnerability to suicide because the amended complaint provides

Nurse Detterline knew of Mr. McCullough’s past suicide attempts and his “psychiatric

diagnosis identifying suicidal propensities.” Palakovic, 854 F.3d at 222-23. First, according to

the amended complaint, Nurse Detterline was advised that Mr. McCullough “had been

committed under a 302 order with suicidal ideations following the events that took place on

October 18, 2021 during which he threatened to kill himself and/or others.” (Doc. 58, ¶ 43).

Second, the amended complaint alleges Nurse Detterline was provided with a “Data Sheet”

indicating Mr. McCullough was suicidal and experiencing thoughts of self-harm. (Doc. 58,

¶¶ 51, 52; Doc. 71, at 12). Third, the amended complaint alleges that Nurse Detterline himself

reported that Mr. McCullough was experiencing suicidal thoughts and that Mr. McCullough

had a possible plan for suicide. (Doc. 58, ¶¶ 51-52, 66-67). These allegations are sufficient to

satisfy Plaintiff’s burden to plead that Nurse Detterline had knowledge of Mr. McCullough’s

particular vulnerability to suicide. See Redclift, 2022 WL 3951356, at *6 (finding the second

element of a deliberate indifference claim met where officials were told the individual was

mentally ill, had suicidal tendencies, and had a history of suicide attempts); see also Schiavone

v. Luzerne County, No. 21-1686, 2022 WL 3142615, at *5 (M.D. Pa. Aug. 5, 2022) (finding

prong two of a prison suicide deliberate indifference claim was sufficiently pled as to medical

defendants where the decedent had documented mental health issues, hospitalizations for

mental health, and had contemplated suicide in the prior year); see also Myers v. Clinton Cnty.

Corr. Facility, No. 3:21-CV-00867, 2023 WL 8117711, at *5 (M.D. Pa. July 11, 2023), report

and recommendation adopted, No. CV 3:21-867, 2023 WL 8117703 (M.D. Pa. Sept. 26, 2023)

(finding the second prong of deliberate indifference analysis was satisfied where a nurse was

informed of decedent’s prior hospitalization and psychiatric history); see also Brown, 2021 WL

4502238, at *6 (prisoner-plaintiff with extensive mental health history, past suicide attempts,

and need for vision sustaining medication sufficiently pleaded his particular vulnerability to

suicide as to set forth a plausible deliberate indifference claim). Accordingly, prong two of

Plaintiff’s deliberate indifference claim is met as to Nurse Detterline.

b. Nurse Mazzulla

Plaintiff has plausibly alleged that Nurse Mazzulla had actual knowledge of Mr.

McCullough’s particular vulnerability to suicide because the amended complaint provides

Nurse Mazzulla, like Nurse Detterline, knew of Mr. McCullough’s past suicide attempts and

his “psychiatric diagnosis identifying suicidal propensities.” Palakovic, 854 F.3d at 222-23.

According to Plaintiff’s amended complaint, Nurse Mazzulla was aware of Mr.

McCullough’s risk of self-harm and his bizarre behavior. (Doc. 58, ¶ 120). During her triage

of Mr. McCullough, she indicated that there was “a reason to believe that arrestee may be

suicidal, dangerous to himself or others.” (Doc. 58, ¶ 45). Plaintiff further alleges that all

nurses, including Nurse Mazzulla, were notified that Mr. McCullough had been committed

under a 302 order with suicidal ideations and that Mr. McCullough had recently threatened

to kill himself. (Doc. 58, ¶ 43). Accordingly, for similar reasons as to Nurse Detterline,

Plaintiff has met her burden of demonstrating Nurse Mazzulla had knowledge of Mr.

McCullough’s vulnerability to suicide for the purpose of a motion to dismiss.

c. Correctional Officer Defendants

Plaintiff has also sufficiently pled that the Correctional Officer Defendants each had

actual knowledge of Mr. McCullough’s mental health challenges and suicidal tendencies.

(Doc. 58, ¶ 109). The amended complaint provides that Correctional Officer Defendants

“were all aware that Mr. McCullough had been incarcerated at CCCF following his 302

commitment related to suicidal activity.” (Doc. 58, ¶ 109). When an official has “actual

knowledge of a history of suicide attempts” it is understood that they “know” of the subject’s

particular vulnerability to suicide. Palakovic, 854 F.3d at 230-31. Even beyond Plaintiff’s

allegation that all Correctional Officer Defendants were notified of Mr. McCullough’s past

suicidal activity, Plaintiff alleges Correctional Officers King, Etters, Young and Muthler “all

knew of Mr. McCullough’s suicidal tendencies and that he was suicidal based on his

placement on behavioral watch and in a cell that had constant video surveillance.” (Doc. 58,

¶¶ 110-111, 117; Doc. 72, at 15); cf. McAndrew, 2023 WL 5351994, at *5 (“Because [Decedent]

was on suicide watch, and the Jail and COs knew or should have known that fact, the

Amended Complaint's allegations satisfy this prong.”). Accordingly, at this very early stage

of the litigation, Plaintiff has again sufficiently pled prong two of her deliberate indifference

claim as it relates to the Correctional Officer Defendants. See Redclift, 2022 WL 3951356, at

*7 (finding correctional officers had actual knowledge of a decedent’s particular vulnerability

to suicide where they had actual knowledge of past suicide related activity).

3. Reckless Indifference to Mr. McCullough’s Particular Vulnerabilities

Reckless or deliberate indifference to the risk of suicide requires a showing of

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

high risk.” Palakovic, 854 F.3d at 231 (quoting Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 320

(3d Cir. 2005)). In a prison context, reckless indifference implies "a willingness to ignore a

foreseeable danger to the detainee's vulnerability, or conscience-shocking behavior in

unhurried situations." Kedra v. Schroeter, 876 F.3d 424, 446 (3d Cir. 2007). That considered,

“a prison custodian is not a guarantor of a prisoner's safety, and therefore the fact that a

suicide took place is not enough on its own to establish that prison officials were recklessly

indifferent in failing to take precautions to protect prisoners entrusted to their care.” Wargo v.

Schuykill County, 348 F. App'x 756, 759 (3d Cir. 2009) (quoting Freedman v. City of Allentown,

853 F.2d 1111, 1115 (3d Cir. 1988)). “‘Because of the nature of the [vulnerability-to-suicide]

analysis,’ determinations as to whether a plaintiff can establish deliberate indifference or

merely negligence in prison suicide cases ‘are very fact sensitive.’” Carlos v. York Cty., No.

1:15-CV-1994, 2019 WL 6699710, at *18, (M.D. Pa. Dec. 9, 2019) (quoting Estate of Puza v.

Carbon County, 586 F. Supp. 2d 271, 278 (M.D. Pa. 2007)). “Courts in the Third Circuit have

also required a plaintiff to plead causation, which has been stated to be a ‘causal nexus.’”

McAndrew, 2023 WL 5351994, at *5.

a. Nurse Detterline

Plaintiff has sufficiently pled that Nurse Detterline acted recklessly indifferent to Mr.

McCullough’s particular vulnerability to suicide by not recommending Mr. McCullough be

put on suicide watch. See Myers, 2023 WL 8117711, at *6 (finding prong three of the prison-

suicide reckless indifference claim met where medical defendants knew about the decedent’s

vulnerability to suicide but failed to place them on suicide watch). As alleged by Plaintiff, Mr.

McCullough was first placed into general population by Nurse Detterline despite recognizing

Mr. McCullough has expressed suicidal thoughts and had a plan to kill himself. (Doc. 58, ¶¶

50, 52). Even after Mr. McCullough’s October 24, 2021, suicide attempt at CCCF, Nurse

Detterline still not did place Mr. McCullough on suicide watch, ensure he had appropriately

suicide-proof accommodations, or restrict Mr. McCullough’s access to implements of suicide

such as bedsheets. (Doc. 58, ¶¶ 48-54, 66-70, 79-82, 121, 122); see DeJesus v. State, 210 F. Supp.

3d 620, 626 (D. Del. 2016) (“Defendants' failure to follow routine housing assignments or to

perform timely rounds while being aware of decedent's particular vulnerability to suicide is

sufficient to plausibly demonstrate a reckless indifference to decedent's particularized

needs.”); cf. McAndrew v. Northumberland Cnty., No. 4:22-CV-00834, 2023 WL 5351994, at *5

(M.D. Pa. Aug. 21, 2023) (finding a jail’s placement of a decedent in a room with a top bunk

despite suicidal vulnerabilities sufficient to allege reckless indifference). Thus, because the

amended complaint adequately alleges that Nurse Detterline “ignored foreseeable danger”

given McCullough’s particular vulnerabilities, Plaintiff has met her pleading burden as to her

deliberate indifference claim against Nurse Detterline at this stage of the litigation. See

Schiavone, 2022 WL 3142615, at *5 (finding plaintiff plausibly alleged reckless indifference

where the decedent was released into general population without adequate mental health

care, especially considering her history of hospitalizations and suicidal ideations).

Additionally, the Court notes that Plaintiff has satisfied the causation requirement as to Nurse

Detterline because Nurse Detterline’s failure to place Mr. McCullough on suicide watch

despite his actual knowledge of Mr. McCullough’s vulnerability to suicide facilitated his

suicide. McAndrew, 2023 WL 5351994, at *5 (“[Plaintiff] sufficiently satisfies the causation

requirement, as Jail staff's decision to place [Decedent] in the wrong kind of room gave her

access to the fixture that she used to facilitate her suicide.”). Accordingly, Nurse Detterline’s

Motion to Dismiss will be DENIED. (Doc. 63).

b. Nurse Mazzulla

According to the amended complaint,

Nurse Mazzulla was aware of Mr. McCullough’s risk of self-harm and his

bizarre behavior, but she did not place Mr. McCullough on suicide watch, did

not restrict his access to ligature that could be used to commit suicide, did not

refer Mr. McCullough for mental health help and instead simply cleared Mr.

McCullough for entry into CCCF.

(Doc. 58, ¶ 120).

Wellpath Defendants argue that Plaintiff’s claims against Nurse Mazzulla at most

suggest she was negligent. (Doc. 67, at 12). According to Wellpath Defendants, “[a]s averred

in the Amended Complaint, although Ms. Mazzulla did not place Mr. McCullough on suicide

watch, he was still being processed for medical intake by others who could have made that

designation and, even so, he was still placed in an observation cell for regular monitoring.”

(Doc. 67, at 13). Plaintiff maintains Nurse Mazzulla was recklessly indifferent to Mr.

McCullough’s suicidal vulnerabilities because she failed to place Mr. McCullough on suicide

watch despite her triage notes, in which she recognized Mr. McCullough was displaying

“bizarre and aggressive behavior” and that there was “a reason to believe that arrestee may

be suicidal, dangerous to himself or others.” (Doc. 58, ¶ 45). The Court agrees.

Assuming Plaintiff’s allegations are true, Nurse Mazzulla had a duty to immediately

place Mr. McCullough on suicide watch, or otherwise take necessary precautions, and her

failure to do so amounts reckless indifference. Lewis, 2016 WL 7239937, at *4 (“when the

factual scenario presented by a plaintiff suggests that the defendant should have known that

a prisoner was a suicide risk, and failed to take necessary and available precautions to protect

the prisoner from self-inflicted wounds, the complaint will survive dismissal.”). Further,

Plaintiff has satisfied the causation requirement as to Nurse Mazzulla because, as with Nurse

Detterline, Plaintiff has that alleged because Nurse Mazzulla failed to place Mr. McCullough

on suicide watch, Mr. McCullough was able to commit suicide. Accordingly, Wellpath

Defendants’ motion to dismiss is DENIED as to Plaintiff’s deliberate indifference claim

against Nurse Mazzulla. (Doc. 65); see Schiavone, 2022 WL 3142615, at *5 (finding plaintiff

plausibly alleged reckless indifference where the decedent was released into general

population without adequate mental health care, especially considering her history of

hospitalizations and suicidal ideations).

c. Correctional Officer Defendants

According to Plaintiff, Correctional Officer Defendants were each recklessly

indifferent to Mr. McCullough’s vulnerability to suicide. (Doc. 72, at 17). First, Plaintiff

alleges Officer Shank was recklessly indifferent to Mr. McCullough’s vulnerability to suicide

because he provided Mr. McCullough “with ligature that could be used for suicide despite his

known and documented suicidal tendencies” despite his knowledge of Mr. McCullough’s

suicidal past. (Doc. 58, ¶ 107; Doc. 72 at 17).; See Nealman v. Laughlin, No. 1:15-CV-1579,

2016 WL 4539203, at *9 (M.D. Pa. Aug. 31, 2016) (opting not to dismiss a prison-suicide

deliberate indifference claim against a nurse because, “despite defendants' knowledge of

[Decedent’s] mental state and potential for self-harm,” decedent did not receive immediate

medical treatment and was given instrumentality with which they committed suicide).

Second, Plaintiff alleges that Officer Muthler, Officer King, Officer Etters, and Officer Young

were recklessly indifferent when they failed to monitor Mr. McCullough personally and when

they failed to monitor his cell via surveillance video, despite the fact Mr. McCullough was

supposed to be on behavioral watch and checked every thirty minutes and also suject to 24/7

video surveillance. (Doc. 58, ¶¶ 63, 110-111; Doc. 72 at 17-18). Finally, Plaintiff contends that

all Correctional Officer Defendants acted with deliberate indifference when they failed to

recommend Mr. McCullough for suicide watch at any point during his four days at CCCF,

despite their actual knowledge that Mr. McCullough was particularly vulnerable to suicide

and their knowledge of past suicide attempt. (Doc. 58, ¶¶ 107, 109-114; Doc. 72. at 18).

Plaintiff has also sufficiently pled the causation requirement as to Correctional Officer

Defendants because she has alleged that their decisions facilitated Mr. McCullough’s suicide.

See McAndrew, 5351994, at *5) (“McAndrew sufficiently satisfies the causation requirement,

as Jail staff's decision to place Ms. McAndrew in the wrong kind of room gave her access to

the fixture that she used to facilitate her suicide.”)

All this considered, Plaintiff has satisfied her burden to plead that the Correctional

Officer Defendants were recklessly indifferent to Mr. McCullough’s suicidality. The

Correctional Officers took no action to put Mr. McCullough on suicide watch, adhere to their

monitoring duties put in place because of his suicidal vulnerabilities, or otherwise act to

protect Mr. McCullough from self-harm. McCracken v. Fulton Cnty., No. 3:19-CV-1063, 2020

WL 2767577, at *7 (M.D. Pa. May 28, 2020) (finding a reckless indifference claim sufficiently

pled where plaintiff alleged correctional officers had knowledge that the decent was suicidal,

but took no action to have them evaluated, placed on suicide watch, or “otherwise protect[]

[him,] from himself”); see also Redclift, 2022 WL 3951356, at *7 (“Plaintiff alleges that

[correctional officer] was aware of [Decedent’s] vulnerability to suicide and recklessly ignored

that risk by failing to tell the Prison about that risk. [] Thus, the deliberate indifference to

suicide claim against [correctional officer] will survive.”); see also Myers, 2022 WL 21757200,

at *5 (finding reckless indifference prong of a prison suicide deliberate indifference claim met

where correctional officers provided decedent with instrumentality through which they were

able to commit suicide, despite knowledge of their mental health history and suicidal

vulnerability); cf. McAndrew, 2023 WL 5351994, at *5 (finding correctional officer’s placement

of a suicidal inmate in a room with a top bunk sufficient to show reckless indifference at the

motion to dismiss stage). Accordingly, County Defendants’ Motion to Dismiss Plaintiff’s

deliberate indifference claims against the Correctional Officer Defendants will be DENIED.

B. COUNT II: FOURTEENTH AMENDMENT DELIBERATE INDIFFERENCE

AGAINST THE COUNTY, WELLPATH, AND SHC

In Count II of the amended complaint, Plaintiff asserts Fourteenth Amendment

deliberate indifference claims against the County, Wellpath, and SHC. (Doc. 58, at 20).

According to Plaintiff, “The County, Wellpath and SHC had policies, customs and/or

practices that resulted in the violation of Mr. McCullough’s Fourteenth Amendment rights.”

(Doc. 58, ¶ 126). “A municipality, such as [the] County, cannot be held liable under 42 U.S.C.

§ 1983 for the unconstitutional acts of its employees on a theory of respondeat superior.” Monell

v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). The County can, however,

be held liable for its own unconstitutional acts. Connick v. Thompson, 563 U.S. 51, 60 (2011).

“A municipality or other local government may be liable under this section if the

governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes a person ‘to

be subjected’ to such deprivation.” Connick, 563 U.S. at 60. To impose liability on the County

under § 1983, Plaintiff must prove that “action pursuant to official municipal policy” caused

her injury or that she was injured by a failure or inadequacy by the municipality that “reflects

a deliberate or conscious choice.” Monell, 436 U.S. at 691; Forrest v. Parry, 930 F.3d 93, 105

(3d Cir. 2019). This second method of proving liability “arose in the failure-to-train context,

but applies to other failures and inadequacies by municipalities, including those related to

supervision and discipline of its ... officers.” Forrest 930 F.3d at 105. “A plaintiff asserting a

municipal liability claim based on a failure or inadequacy of training, supervision, or

discipline does not need to show an unconstitutional policy.” Evans v. Columbia Cnty., No.

1:20-CV-00722, 2024 WL 115202, at *34 (M.D. Pa. Jan. 10, 2024). Instead, the plaintiff must

demonstrate that the County’s failure to train, supervise, or discipline amounted “to deliberate

indifference on the part of the municipality.” Forrest, 930 F.3d at 106.

In the context of a prison suicide, a plaintiff must “(1) identify specific training not

provided that could reasonably be expected to prevent the suicide that occurred and (2)

demonstrate that the risk reduction associated with the proposed training is so great and so

obvious” that failing to offer it “can reasonably be attributed to a deliberate indifference to

whether the detainees succeed in taking their lives.” Bingham v. Lancaster Cnty., No. 5:22-CV-

02769-JMG, 2024 WL 23139, at *11 (E.D. Pa. Jan. 2, 2024) (quoting Palakovic, 854 F.3d at

233). “A pattern of similar constitutional violations by untrained employees is ordinarily

necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563

U.S. at 62; see also Bingham, 2024 WL 23139, at *11. “A county policymaker's ‘continued

adherence to an approach that they know or should know has failed to prevent tortious

conduct by employees may establish the conscious disregard for the consequences of their

action—the deliberate indifference—necessary to trigger municipal liability.’” Bingham, 2024

WL 23139, at *11 (quoting Connick, 563 U.S. at 62).

1. The County

The amended complaint sufficiently alleges that the County promulgated a policy or

custom that denied suicidal inmates with appropriate suicide care and prevention for the

purpose of County Defendants’ instant motion to dismiss. In the amended complaint,

Plaintiff asserts the County’s suicide policy was “a paper policy only that was not utilized by

the County” and that the policy denied “suicidal inmates with appropriate and necessary

items to prevent suicide, including suicide proof clothing and blankets, as well as appropriate

living quarters such as suicide-proof cells.” (Doc. 58, ¶¶ 128, 134). Further, Plaintiff alleges

the County had a policy or practice of employing temporary nurses who lacked “necessary

knowledge and/or skills to provide constitutionally adequate inmate health care.” (Doc. 58,

¶¶ 139, 141). Lastly, the amended complaint contains allegations that the County had a policy

or practice of failing to consistently monitor inmates on behavioral watch and that the system

for discerning an inmate’s placement was faulty, which resulted in harm. (Doc. 58, ¶¶ 137-

138).

These allegations are sufficient at this early stage of litigation, as a “plaintiff is not

obligated to plead with special particularity the exact policies and practices that were in place,

prior to taking any discovery into the alleged policies, and explain exactly how these precisely

alleged policies caused or contributed to [an individual's] injuries.” Rodriguez v. City of Phila.,

No. 14-CV-7362, 2015 WL 4461785, at *3 (E.D. Pa. July 21, 2015); see also Reed v. City of

Philadelphia, No. CV 20-3640, 2021 WL 2529915, at *3 (E.D. Pa. June 17, 2021).

Accordingly, Plaintiff has met her burden as it relates to her Fourteenth Amendment

deliberate claim against the County. See Bucek v. Allegheny Cnty., No. 2:22-CV-940-NR, 2023

WL 4594840, at *3 (W.D. Pa. July 18, 2023) (finding plaintiff had stated a sufficient deliberate

indifference claim against a county where the complaint alleged the county maintained a

policy where inmates did not receive proper suicide care and that the county had failed to

correct defective policies and training procedures); see Redclift, 2022 WL 3973819, at *9

(finding plaintiff had sufficiently pled a deliberate indifference claim pursuant Monell where

plaintiff had pled staff were not trained correctly); Reed, 2021 WL 2529915, at *3 (“[a]t this

stage of the proceedings, plaintiff's allegations with respect to the lack of training on

monitoring and treating detainees at risk of suicide are sufficient to state a Monell claim against

the City based on a failure to train theory.”); Lewis v. Cnty. of Northumberland, No. 4:14-CV-

02126, 2016 WL 7239937, at *5 (M.D. Pa. Dec. 15, 2016) (allegations that the county failed

to properly train and supervise staff in monitoring suicidal inmates and practice of failing to

place suicidal inmates on suicide watch were sufficient at the motion to dismiss stage). County

Defendants’ motion to dismiss Plaintiff’s deliberate indifference claim as it relates to the

County will be DENIED.

2. Wellpath & SHC

Similar to municipal liability, a private organization may only be held liable for a

constitutional violation under § 1983 if they maintain an unconstitutional custom or policy.

Under § 1983, “a private corporation contracted by a prison to provide healthcare for inmates

cannot be held liable on a respondeat superior theory; rather, pursuant to [Monell], a private

corporation can be held liable for constitutional violations only if it has a custom or policy

exhibiting deliberate indifference to a prisoner's serious medical needs.” Gannaway v. Prime

Care Medical, Inc., 150 F. Supp. 3d 511, 530 (E.D. Pa. 2015); see also Carlos v. York Cnty., No.

1:15-CV-1994, 2019 WL 6699710, at *28 (M.D. Pa. Dec. 9, 2019). Thus, as was true with her

deliberate indifference claim against the County, for the purpose of the instant motions to

dismiss Plaintiff must allege both Wellpath and SHC maintained “a custom or policy

exhibiting deliberate indifference to prisoners’ particular vulnerabilities to suicide.” Carlos,

2019 WL 6699710, at *28.

Plaintiff alleges Wellpath and SHC instituted and maintained policies denying suicidal

inmates with appropriate care, including suicide-proof living quarters, and had improper

supervision policies for suicidal inmates. (Doc. 58, ¶¶ 128-134). The amended complaint also

alleges that both Wellpath and SHC failed to properly train their staff on adequate suicide

prevention procedures and the proper placement of suicidal inmates. (Doc. 58, ¶¶ 134-136).

Again, drawing all reasonable inferences in Plaintiff’s favor, the Court finds she had

sufficiently pled her deliberate indifference claim against both Wellpath and SHC at this early

stage of the litigation. See Lewis, 2016 WL 7239937, at *5 (allegations that a prison’s medical

provider failed to properly train and supervise staff in monitoring suicidal inmates and

practice of failing to place suicidal inmates on suicide watch were sufficient for plaintiff’s

deliberate indifference claim to survive dismissal). “It is necessary that this issue proceed to

discovery because evidence concerning the existence of any improper policies, customs, or

procedures will be addressed in the discovery process, and the presence of a dispute of

material fact as to such policies or procedures may be determined through a future motion for

summary judgment.” Lewis, 2016 WL 7239937, at *5. Accordingly, Wellpath Defendants and

SHC’s motions to dismiss will be DENIED as they relate to Plaintiff’s deliberate indifference

claims against Wellpath and SHC.2 (Doc. 65; Doc. 76).

C. COUNT III: VIOLATION OF THE AMERICANS DISABILITY ACT & COUNT

IV: VIOLATION OF THE REHABILITATION ACT AGAINST THE COUNTY

In Count III and Count IV of the amended complaint, Plaintiff alleges that the County

violated the ADA and the RA. (Doc. 58, at 23- 25). According to Plaintiff, prior to his death

Mr. McCullough was disabled within the meaning of the ADA and the RA because he was

suicidal, struggled with mental health related illness including psychosis, and suffered

depression. (Doc. 58, ¶¶ 149-151). Plaintiff alleges “the County denied Mr. McCullough his

rights under the Americans with Disabilities Act [and the RA] by failing to accommodate his

known disabilities and implement necessary suicide-prevention methods, namely, keeping

Mr. McCullough in a suicide smock, providing him a knot-proof suicide blanket, and/or

keeping Mr. McCullough in a suicide-proof cell.” (Doc. 58, ¶ 152). County Defendants argue

these claims should be dismissed.

Under Title II of the ADA, “no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

2 SHC argues that the Court should consider staffing agreements between the SHC and

the CCCF that are attached to their motion as an exhibit and dismiss Plaintiff’s claim against

it using a summary judgment standard. (Doc. 78, at 7). According to SHC, “Under the terms

of the staffing agreements Wellpath, LLC was responsible for making the final determination

that any of SHC’s provided personnel were suitable and had the ‘documented competencies

and experience…for the designated assignment.’” (Doc. 78, at 7). SHC alleges that under this

agreement, they cannot be considered “state actors” for the purposes of § 1983. (Doc. 78, at

7). Plaintiff responds that “that SCH [sic] neither tries, nor would it be valid if it tried, to

contract away the constitutional obligation it undertook by participating in the provision of

health care within a jail.” (Doc. 78, at 7). Further, that discovery is need on this issue. (Doc.

79, at 21). As averred by Plaintiff, SHC’s arguments and their attached staffing agreements

are better considered after discovery. (Doc. 79, at 21). Looking just at the face of the complaint

and Plaintiff’s allegations, her § 1983 deliberate indifference claim against SHC survives.

42 U.S.C. § 12132. To establish a claim under Title II of the ADA, a plaintiff must allege that:

“(1) he is a qualified individual with a disability; (2) he was either excluded from participation

in or denied the benefits of some public entity’s services, programs, or activities; and (3) such

exclusion, denial of benefits, or discrimination was by reason of his disability.” McPherson v.

County of Dauphin, No. 19-1865, 2020 WL 1558206, at *2 (M.D. Pa. Mar. 24, 2020). The RA

requires the same showing but applies only to “any program or activity receiving Federal

financial assistance” and requires a plaintiff to demonstrate that their disability was the sole

reason for the discrimination, not merely one reason. 29 U.S.C. § 794(a); CG v. Pa. Dep't Educ.,

734 F.3d 229, 235–36 (3d Cir. 2013).

“[D]ecisions about a prisoner's medical treatment generally do not give rise to a claim

under the ADA.” Nunez v. Prime Care Health, Inc., No. 19-CV-859, 2019 WL 1400466, at *1

n.3 (E.D. Pa. Mar. 27, 2019) (collecting cases). These claims would inevitably fail because

the ADA and RA “prohibit[ ] disability-based discrimination, ‘not inadequate treatment for

the disability.’” Kokinda v. Pennsylvania Dep't of Corr., 663 F. App'x 156, 159 (3d Cir. 2016)

(quotation omitted). However, a plaintiff may demonstrate a cognizable claim under the

ADA and the RA if they allege a disabled detainee was denied a reasonable accommodation

that would have granted them meaningful access to prison activities and programs, including

those that implicate medical care. McDonald-Witherspoon v. City of Philadelphia, 481 F. Supp.

3d 424, 439 (E.D. Pa. 2020), aff'd, No.21-1019, 2021 WL 6101246 (3d Cir. Dec. 21, 2021).

The parties’ arguments as to the applicability of the ADA and the RA are unclear. 3

3 The County Defendants counter that “Plaintiff does not allege these restrictions were

ordered by the medical department” and that “Plaintiff cannot overcome the lack of a single

claim that McCullough made statements to corrections officers that he was suicidal or that he

acted in a manner, at the CCCF, suggesting he was vulnerable to suicide.” (Doc. 68, at 22).

County Defendants maintain that “Plaintiff pleads insufficient facts to demonstrate the

Based upon their briefing, it appears that the parties here again argue whether the Correctional

Officer Defendants had actual notice that Mr. McCullough was suicidal, and thus in this

context, was a qualified individual with a disability. (Doc. 68, at 21-23; Doc. 72, at 21-22).

Regardless, reviewing the sufficiency of Plaintiff’s allegations as they relate to her ADA and

RA claims, the Court finds Plaintiff has not satisfied her burden.

For prongs one and two the of the necessary analysis, Plaintiff has arguably alleged

sufficient facts. First, Plaintiff has provided Mr. McCullough was a qualified individual by

alleging “Mr. McCullough was disabled within the meaning of the Americans with

Disabilities Act and the Rehabilitation Act because he was suicidal, had mental health issues

and suffered with depression.” (Doc. 58, ¶ 149). Ultimately, this is a question of fact that

“ordinarily should be resolved by a jury.” McKissick v. Cnty. of York, No. 1:09-CV-1840, 2011

WL 5117621, at *2 (M.D. Pa. Oct. 25, 2011). Next, according to the amended complaint, the

County did not provide Mr. McCullough with reasonable accommodations because they

denied him adequate mental health care and a suicide proof cell and a suicide proof blanket.

(Doc. 58, ¶¶ 155-57). “[I]n dictum, the Supreme Court has stated that a prison's refusal to

accommodate inmates’ disabilities ‘in such fundamentals as mobility, hygiene, medical care,

and virtually all other prison programs’ constitutes a denial of the benefits of a prison's

services, programs, or activities.” Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 290 (3d

Cir. 2019). Applying this logic to the facts alleged here, a prison discriminates when they fail

to accommodate an inmate’s need for suicide related medical care or safe accommodations.4

County knew that McCullough’s federally protected right to be free from disability

discrimination was violated at the CCCF.” (Doc. 68, at 23).

4 This premise is distinct from the Third Circuit’s conclusion that inadequate medical

treatment cannot form the basis of an ADA or RA claim. See, e.g., Kokinda v. Pa. Dep't of Corr.,

663 F. App'x. 156, 159 (3d Cir. 2016). To sufficiently alleged an ADA or RA claim, plaintiff

See Schiavone, 2022 WL 3142615, at *8 (finding plaintiff sufficiently alleged her ADA and RA

claims where she alleged decedent was denied access to medical care in the prison); cf.

McKissick v. Cty. of York, No. 1:09-CV-01840, 2010 WL 1930132, at *7 (M.D. Pa. Mar. 19,

2010) (allowing an ADA claim to proceed where prison officials refused to provide a detainee

with drug treatment); but see Talley v. PA Dep't of Corr., No. CV 19-1687, 2019 WL 6050744

(E.D. Pa. Nov. 14, 2019) (“A denial of treatment for a disability [in a prison] is not actionable

under the ADA and RA.”). Thus, because she alleges Plaintiff was denied necessary suicide

prevention care, Plaintiff arguably has sufficiently pled prong two of her ADA and RA claims.

(Doc. 58, ¶ 152). However, the Court need not decide so definitively, because Plaintiff has

clearly failed to allege Mr. McCullough was denied medical care or safe accommodations

because of his status as a disabled person, or in other words, because he was experiencing

mental illness. Cf. Talley v. PA Dep't of Corr., 2019 WL 6050744, at *5 (dismissing RA and

ADA claims because plaintiff failed to allege facts supporting their averment that they were

denied access to prison activities because of discrimination based on their mental illness,

instead pointing to the fact that the prisoner was denied access to activities because they were

subject to surveillance due to their own claims of being suicidal). To meet her burden as to

prong three of her ADA and RA claims, Plaintiff must also allege “facts sufficient to show”

that Mr. McCullough had been excluded from reasonable accommodations “by reason of”

must allege they were denied access to medical care rather than just stating the medical

treatment received was inadequate or deficient. See Kloss v. Correct Care Sols., No. 1:18-CV-

0025, 2018 WL 6268270, at *4 n.4 (W.D. Pa. Oct. 31, 2018) (stating that “[d]enying access

to medications is not, however, a medical judgment or medical negligence, and such claims

can be actionable under the ADA”), report and recommendation adopted sub nom. CV 18-25,

2018 WL 6266921 (W.D. Pa. Nov. 30, 2018); see also McKissick v. Cty. of York, No. 1:09-CV-

01840, 2010 WL 1930132, at *7 (M.D. Pa. Mar. 19, 2010) (allowing an ADA claim to proceed

where prison officials refused to provide a detainee with methadone).

his disability. Brown v. Pa. Dep't of Corr., 290 F. App'x 463, 467 (3d Cir. 2008) (quoting 42

U.S.C. § 12132). Here, Plaintiff’s allegation that the County failed to accommodate Mr.

McCullough with adequate means of suicide prevention does not support the inference that

Mr. McCullough was denied said accommodation because he was suicidal or experiencing

mental illness. Plaintiff’s circular averment that “The County’s choice not to provide Mr.

McCullough with reasonable accommodations for his disability constituted discrimination

against him on the basis of his disability,” is insufficient to meet to her pleading burden even

at this early stage of the litigation. (Doc. 58, ¶ 153). Accordingly, the Court will GRANT the

County Defendants’ motion to dismiss the ADA and RA claims against the County. See

Brown v. Deparlos, 492 F. App'x 211, 215 (3d Cir. 2012) (affirming the dismissal of an ADA

claim where plaintiff failed to provide facts alleging that alleged inadequate medical care was

given because of a disability); see also Kokinda v. Pennsylvania Dep't of Corr., No. 2017 WL

4049255, at *9 (W.D. Pa. Aug. 29, 2017), report and recommendation adopted, 2017 WL 4046347

(W.D. Pa. Sept. 12, 2017), aff'd, 779 F. App'x 938 (3d Cir. 2019) (dismissing an ADA claim

where “the complaint allege[d], at most, that Plaintiff received inadequate treatment and

accommodations for his [disability]” without demonstrating the inadequate care was because

of the alleged disability).

D. COUNT V: FOURTEENTH AMENDMENT STATE-CREATED DANGER

AGAINST OFFICER SHANK AND THE COUNTY

In Count V, Plaintiff brings a state-created danger claim against the County and

Officer Shank. (Doc. 58, at 26). According to Plaintiff, “the County and Officer Shank placed

Mr. McCullough in a position of danger that he otherwise would not have faced.” (Doc. 58,

¶ 166). Whereas the State typically has no obligation to protect its constituents from harm, a

plaintiff may seek recovery under § 1983 under the state-created danger theory. Kneipp v.

Tedder, 95 F.3d 1199 (3d Cir. 1996). To state a claim under the state-created danger theory,

Plaintiff must allege:

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); see also Est. of

Morcho by & Through Carson v. Borough, No. CV 22-3245, 2024 WL 21940, at *4

(E.D. Pa. Jan. 2, 2024).

To show Officer Shank and the County affirmatively used their authority to create a

danger, Plaintiff “must allege facts showing [Defendants]: (1) exercised his/her authority; (2)

took an affirmative action; and (3) said affirmative action created a danger to [Mr.

McCullough] or rendered him more vulnerable to danger than had the Individual Defendants

not acted at all.” Est. of Morcho by & Through Carson, 2024 WL 21940, at *4; Bright, 443 F.3d

at 281.

County Defendants argue that Mr. McCullough’s suicide was not foreseeable to the

County or Officer Shank and that element one of Plaintiff’s state-created danger claim is

insufficiently pled. (Doc. 68, at 24). Further, County Defendants aver that “Plaintiff does not

allege Shank was aware McCullough was committed under a 302 with suicidal ideation or

that he threatened to kill himself.” (Doc. 68, at 24). Plaintiff directly refutes this assertion,

stating, “all Individual Defendants, including Officer Shank, are alleged to have been aware

that Mr. McCullough was incarcerated CCCF follow his 302 commitment related to suicidal

activity.” (Doc. 72, at 23). The amended complaint supports Plaintiff’s argument. (Doc. 58,

¶ 109). To show that Mr. McCullough’s suicide was foreseeable, Plaintiff again must allege

that the relevant actors “actual knowledge or an awareness of risk that [was] sufficiently

concrete to put [them] on notice of the harm.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 238

(3d Cir. 2008). Plaintiff points to specific allegations in the amended complaint to support her

position that the County had knowledge of Mr. McCullough’s vulnerability to suicide,

including allegations of Mr. McCullough’s pre-incarceration suicidal behavior, Mr.

McCullough’s “post-incarceration conduct where he tied a ligature around his neck in an

attempt to end his life,” which resulted in his hospitalization, and the fact that Mr.

McCullough was affirmatively documented at CCCF as suicidal. (Doc. 58, ¶¶ 25-37, 39, 45,

68, 71-81). The Court agrees with Plaintiff that these allegations together are sufficient to

provide that Officer Shank and the County “had actual notice or awareness of the risk that

[was] sufficiently concrete as to put [them] on notice of the risk.” Phillips, 515 F.3d at 238; see

Mears v. Connolly, 24 F.4th 880, 884 (3d Cir. 2022). At this early stage of the litigation, Plaintiff

has met her burden as to element one of her state-create danger claim.

The County Defendants next contend, without further elaboration as to why, that

“neither the County or Shank affirmatively used authority in a way that created a danger to

McCullough or that rendered him more vulnerable to danger than had they not acted at all.”

(Doc. 68, at 25). Whether Plaintiff’s state-created danger claim survives is dependent on

whether Officer Shank (1) exercised his authority; (2) took an affirmative action; and (3) said

affirmative action created a danger to [Mr. McCullough] or rendered him more vulnerable to

danger than had [he] not acted at all.” Est. of Morcho by & Through Carson, 2024 WL 21940, at

*4. Here, Plaintiff alleges Officer Shank used his authority to take the affirmative act of issuing

Mr. McCullough a sheet that could be used to take his own life, instead of a suicide proof

blanket. (Doc. 58, at 18, 26-27). Plaintiff alleges that this action caused danger to Mr.

McCullough because in effect, Officer Shank gave Mr. McCullough a tool he could use to

commit suicide despite having actual knowledge of the risk posed by doing so. (Doc. 58, ¶

174). Thus, drawing all reasonable inferences in favor of Plaintiff, the Court finds she has

sufficiently alleged her state-created danger claim. Considering the under-development of

parties’ arguments to the contrary, at this early stage of the litigation Plaintiff’s state-created

danger claim survives. See Kedra v. Schroeter, 876 F.3d 424 (3d Cir. 2017) (“In sum, because

the allegations in Appellant's complaint collectively give rise to the inference that [Defendant]

acted with actual knowledge of a substantial risk of lethal harm. . . Appellant has adequately

pleaded her state-created danger claim” (internal citation omitted)). Accordingly, County

Defendants’ motion to dismiss this claim is DENIED.

E. QUALIFIED IMMUNITY

Finally, County Defendants argue that the Correctional Officer Defendants are

protected by qualified immunity for the deliberate indifference claims against them.5 (Doc.

68, at 25-26). County Defendants argue the Correctional Officer Defendants are entitled to

qualified immunity because “Plaintiff has not plausibly pleaded that nonmedically trained

corrections officers should have known that Nurses Mazzulla and Detterline were not

properly assessing McCullough and did not provide proper medical restrictions.” (Doc. 68, at

26). According to Plaintiff, County Defendants wrongly frame their argument in the context

of a denial of medical care case, where the Third Circuit has established “A vulnerability to

suicide claim is distinct from more generalized claims regarding the adequacy of medical

5 County Defendants do not discuss Officer Shank’s entitlement to qualified immunity

for his state-created danger claim.

care.” (Doc. 72, at 25); see Palakovic, 854 F.3d at 227; McCracken, 2020 WL 2767577, at *7.

Citing McCracken, Plaintiff avers “[i]t is clearly established in this circuit that custodial officials

may be liable for deliberate indifference to a detainee's known vulnerability to suicide.” (Doc.

72, at 25); 2020 WL 2767577, at *7.

The qualified immunity doctrine protects government officials from liability for civil

damages “in so far as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). Courts consider two prongs when determining whether an official

is entitled to qualified immunity: “(1) whether the official violated a constitutional right; and

(2) whether the right was clearly established.” McAndrew v. Northumberland Cnty., No. 4:22-

CV-00834, 2023 WL 408905, at *6 (M.D. Pa. Jan. 25, 2023). A right is “clearly established”

when “[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). “The Supreme Court has stated that this standard does not require a case directly on

point but requires that ‘existing precedent must have placed the statutory or constitutional

question beyond debate.’” Redclift, 2022 WL 3951356, at *11 (quoting al-Kidd, 563 U.S. at

741).

Because the Court has already found Plaintiff has alleged viable constitutional claims

against the Correctional Officer Defendants, the focus of this inquiry will be on whether Mr.

McCullough’s rights were clearly established at the time they were allegedly violated. See

Stuart v. Pierce, 587 F. Supp. 3d 127, 140 (D. Del. 2022) (In the context of a prison suicide

case, stating “Because it has already been determined that [Plaintiff] alleges viable claims of

constitutional violations, this analysis focuses on the second prong—whether [Plaintiff’s]

rights were clearly established at the time of the alleged violation.”). “There is a clearly

established ‘standard of liability to be applied in [the Third Circuit] in prison suicide cases.’”

DeJesus v. State, 210 F. Supp. 3d 620, 625 (D. Del. 2016) (quoting Colburn v. Upper Darby Twp.,

946 F.2d 1017, 1023 (3d Cir. 1991)). “[T]here is no question that a pretrial detainee can assert

a Fourteenth Amendment claim against custodial officers for deliberate indifference to his

risk of suicide while in their custody” in the Third Circuit. Redclift, 2022 WL 3951356, at *11

(internal quotation omitted); see Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017). “If custodial

officials kn[e]w or should [have] know[n] of the particular vulnerability to suicide of an

inmate, then the Fourteenth Amendment imposes on them an obligation not to act with

reckless indifference to that vulnerability.” DeJesus, 210 F. Supp. 3d at 625; see also Redclift,

2022 WL 3951356, at *12. “As early as 1998, district courts in this circuit recognized such a

clearly established right, without regard of limiting liability to officers who had actual custody

of the inmate at the time of the suicide.” Redclift, 2022 WL 3951356, at *12; see Owens v. City

of Phila., 6 F. Supp. 2d 373, 376-77 (E.D. Pa. 1998). Accordingly, courts in this circuit have

denied qualified immunity claims in the context of prison suicide deliberate indifference

claims. See Redclift, 2022 WL 3951356, at *12; see also McCracken, 2020 WL 2767577, at *11

n.7.

At the motion to dismiss stage, the Court is singularly concerned with whether Plaintiff

has sufficiently pled a claim upon which relief may be granted. Fe. R. Civ. P. 12(b)(6). Here,

it is not plain from the face of the complaint, or from County Defendants arguments, that

Correctional Officer Defendants are entitled to qualified immunity. Considering Plaintiff’s

thorough pleadings, the Court believes discovery would assist in answering this question. “It

will be more appropriate to address the qualified immunity claim in the summary judgment

context as the court will be able to examine the evidence of record.” Zvonek v. Walters, No.

3:20CV1185, 2024 WL 759865, at *3 (M.D. Pa. Feb. 23, 2024) Accordingly, considering this

Circuit’s case law6 and “the disfavored nature of ruling on qualified immunity issues at the

pleading stage,” the Court finding Correctional Officer Defendants’ entitlement to qualified

immunity is not clear based solely on the face of the complaint. Therefore, the Court will

DENY the Correctional Officer Defendants’ invocation of qualified immunity at this time.7

6 The Supreme Court has yet to resolve whether clearly established law may be

determined through just the precedent of the circuit in which the district court sits, or whether

there must be a consensus of circuits or only through Supreme Court decisions. See D.C. v.

Wesby, 583 U.S. 48, 591 n.8 (2018) (“We have not yet decided what precedents—other than

our own—qualify as controlling authority for purposes of qualified immunity.”); see also

Reichle v. Howards, 566 U.S. 658, 665–666, (2012) (reserving the question whether court of

appeals decisions can be “a dispositive source of clearly established law”).

7 The Court acknowledges the 2015 Supreme Court case Taylor v. Barkes. 575 U.S. 822

(2015). In Taylor, the Supreme Court reversed a Third Circuit decision denying the

Commissioner of the Delaware Department of Corrections (“DOC”) and a prison warden’s

motion for summary judgment based on their entitlement to qualified immunity. Taylor, 575

U.S. at 824. Like the case at bar, Taylor involved an incarcerated individual who committed

suicide while in the care and custody of the DOC. Taylor, 575 U.S. at 824. According to the

Supreme Court, in 2004 when the suicide took place, there was not a clearly established right

to “proper and adequate suicide prevention protocols” under the Constitution. Taylor, 575

U.S. at 824, 827. Specifically, the Supreme Court stated, “no precedent on the books in 2004

would have made clear to petitioners that they were overseeing a system that violated the

Constitution.” Taylor, 575 U.S. at 827. Notably, Taylor implicated defendants’ duty to

establish procedures to identify vulnerable individuals. Taylor, 575 U.S. at 826-27.The case at

bar involves the deliberate indifference of individual defendants with actual knowledge of an

inmate’s particular vulnerability to suicide. Since 2004, this area of law has been further

developed. In the 2005 case, Woloszyn v. County of Lawrence, the Third Circuit explained the

applicability of the deliberate indifference standard to prison suicide cases involving pre-trial

detainees and asserted under the Fourteenth Amendment. 396 F.3d 314 (3d Cir. 2005). In

2017, the Third Circuit reiterated that the Constitution “prohibits prison officials from being

deliberately indifferent to an inmate's serious medical needs,” and that the Third Circuit has

“recognized that a particular vulnerability to suicide qualifies as a serious medical need.”

Palakovic, 854 F.3d, at 227. This right was further expanded by the Third Circuit in the 2018

case Alexander v. Monroe County. 734 F. App'x 801 (3d Cir. 2018). Because the Court finds that

it is not clear from the face of the complaint that Correctional Officer Defendants are entitled

to qualified immunity, the Court will reserve further examination of the County Defendants’

qualified immunity defense for the more appropriate summary judgment context.

Redclift, 2022 WL 3951356, at *12.

IV. LEAVE TO AMEND

The Third Circuit has instructed that if a 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). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave

to amend.’” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d

Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). In this

case, Plaintiff has already filed an amended complaint. (Doc. 58). Further, the majority of the

claims asserted therein survive despite each being challenged in Defendants’ motions to

dismiss. (Doc. 58). Accordingly, the Court will not grant leave to amend at this time. (Doc.

58).

V. CONCLUSION

For the foregoing reasons, Nurse Detterline, Wellpath Defendants, and SHC’s

motions to dismiss are DENIED. (Doc. 63; Doc. 65; Doc. 76). County Defendants’ motion

to dismiss will is DENIED in part and GRANTED in part. (Doc. 64). Plaintiff’s claims

asserted under the ADA and RA against the County, Count III and Count IV of her amended

complaint, are DISMISSED. (Doc. 58). An appropriate Order follows.

BY THE COURT:

Dated: April 4, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge