Renee Palakovic v. John Wetzel

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-2726

_____________

RENEE PALAKOVIC, as Administrator of the Estate of

Brandon Palakovic;

DARIAN PALAKOVIC, as Administrator of the Estate

of Brandon Palakovic,

Appellants

v.

JOHN WETZEL; KENNETH CAMERON;

JAMIE BOYLES; JAMEY LUTHER;

DR. JAMES HARRINGTON;

DR. DALEEP RATHORE; MICHELLE HOUSER;

MORRIS HOUSER; FRANCIS PIROZZOLA;

JOHN DOES #1, #2; JOHN DOES # 3-6;

MHM INC; DR. CAROL EIDSVOOG;

HEARING EXAMINER ROBERT REED;

CORRECTIONAL OFFICER KUSHNER;

SERGEANT DOUS

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 3-14-cv-00145

District Judge: Honorable Kim R. Gibson

_____________

Argued January 12, 2017

Before: SMITH, Chief Judge, JORDAN, and

SHWARTZ, Circuit Judges

(Filed: April 14, 2017)

Bret Grote [ARGUED]

Abolitionist Law Center

P.O. Box 8654

Pittsburgh, PA 15221

Michael J. Healey

Healey & Hornack

247 Fort Pitt Boulevard

4th Floor

Pittsburgh, PA 15222

Counsel for Appellants

2

Howard G. Hopkirk [ARGUED]

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Counsel for Corrections Officials Appellees

Alan S. Baum

Cassidy L. Neal [ARGUED]

Matis Baum & O’Connor

444 Liberty Avenue

Suite 300, Four Gateway Center

Pittsburgh, PA 15222

Counsel for Appellees Dr. Daleep Rathore,

Dr. Carol Eidsvoog, and MHM, Inc.

Witold J. Walczak

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213

Counsel for Amicus Appellants

________________

OPINION

________________

3

SMITH, Chief Judge.

Brandon Palakovic, a mentally ill young man who

was imprisoned at the State Correctional Institution at

Cresson, Pennsylvania (SCI Cresson), committed suicide

after repeatedly being placed in solitary confinement.

His parents, Renee and Darian Palakovic, brought this

civil rights action after their son’s death. The District

Court dismissed the family’s Eighth Amendment claims

against prison officials and medical personnel for failure

to state a claim upon which relief can be granted. We

write today to clarify and elaborate upon the legal

principles that apply to Eighth Amendment claims arising

out of prison suicides. For the reasons that follow, we

will vacate the District Court’s dismissals.

I.

The following allegations appear in the amended

complaint.1 Brandon Palakovic2 was convicted of

1

The allegations of the original complaint are consistent

with the allegations of the amended complaint but

provide fewer details. Where appropriate in our

discussion of the specific claims raised in the original

complaint, we have relied upon the allegations as set

forth in the original, rather than the amended, complaint.

2

For purposes of clarity, and intending no disrespect, we

refer throughout this opinion to Brandon Palakovic by his

4

burglarizing an occupied structure in Perry County,

Pennsylvania, and was sentenced by the state court to a

term of 16–48 months’ imprisonment. In April 2011, he

arrived at the State Correctional Institution at Camp Hill,

Pennsylvania (SCI Camp Hill), for processing and

classification. Those procedures included a mental

health screening.

Brandon informed SCI Camp Hill mental health

staff that he had attempted suicide in the past and had

engaged in self-harm as recently as August 2010. He

also advised staff that he experienced periodic thoughts

of self-harm and suicide, and that he had made plans

about how to kill himself. Brandon was diagnosed with a

number of serious mental disorders, including alcohol

dependence, anti-social personality disorder, and impulse

control disorder. He was identified as a “suicide

behavior risk,” J.A. 653, and was classified as “Stability

Rating D,” signifying “a substantial disturbance of

thought or mood which significantly impairs judgment,

behavior, capacity to recognize reality, or cope with the

ordinary demands of life,” J.A. 66. It is the lowest

stability rating given a prisoner in the Pennsylvania

Department of Corrections (DOC) system. He was,

accordingly, placed on the prison mental health roster.

first name and to his parents, the plaintiffs, as the

Palakovics.

3

“J.A.” refers to the parties’ Joint Appendix.

5

Brandon was transferred to SCI Cresson in June

2011. During his incarceration at SCI Cresson, he

reported feeling depressed, exhibited signs of depression,

and acknowledged suicidal thoughts and a wish to die.

His nickname within the prison became “Suicide.” Yet

no comprehensive suicide risk assessment was

performed. Brandon did not receive psychological

counseling, drug and alcohol counseling, group therapy,

or interviews in clinically appropriate settings; any

mental health interviews were conducted “through the

cell door slot in the solitary confinement unit.” J.A. 82.

According to the amended complaint, mental

healthcare at SCI Cresson was seriously deficient in

many respects. Specifically, the amended complaint

alleged that SCI Cresson had insufficient psychiatric

staff, failed to ensure adequate frequency of mental

health appointments, failed to provide proper oversight of

medication regimes, kept poor medical records, and did

not train staff on the proper response to prisoners with

mental illness. In addition, it was allegedly the practice

at SCI Cresson that medications to treat mental illness

were inadequately monitored for effectiveness and were

used as a substitute for other, more effective treatments.

The amended complaint further alleged that SCI

Cresson’s practice for dealing with mentally ill prisoners

like Brandon was to relegate them to solitary

confinement. This meant that because of Brandon’s

particular mental illnesses and lack of proper treatment,

6

his behavior was “going to continually land him in

solitary confinement unless there was an intervention on

his behalf.” J.A. 85. Therefore, over the course of his

thirteen months at SCI Cresson, Brandon “was repeatedly

subjected to solitary confinement via placement in the

prison’s Restricted Housing Unit (RHU), characterized

by extreme deprivations of social interaction and

environmental stimulation, abusive staff, and inadequate

to non-existent mental health care.”4 J.A. 68 (footnote

omitted).

During his “multiple 30-day stints in solitary

confinement,” J.A. 69, Brandon was exposed to extreme

and trying conditions. He was isolated for approximately

23 to 24 hours each day, in a tiny cement cell of less than

100 square feet with only small slit windows affording

him minimal outside visibility. He was not permitted to

make phone calls, his possessions were limited to one

small box, and his social interaction and environmental

stimulation were severely reduced. Brandon was

permitted just one hour of exercise five days out of each

week, which took place in an outdoor cage only slightly

larger than his cell.

4

Neither the original complaint nor the amended

complaint specifies the amount of time Brandon spent in

solitary confinement during his 13-month incarceration at

SCI Cresson, describing his stays there as “numerous,”

“repeated,” and “multiple.” See, e.g., J.A. 69.

7

According to the amended complaint, prison

officials were aware that exposure to these conditions

carried mental health risks. The majority of incidents of

self-harm at SCI Cresson—including suicides and suicide

attempts—took place in solitary confinement. In 2011,

14 of the 17 documented suicide attempts (more than

80%) occurred in the prison’s solitary confinement units.

There also were “dozens of incidents” in which prisoners

on the mental health roster engaged in self-harm, “while

just two such incidents occurred in the general

population.” J.A. 78–79.

Notably, during Brandon’s incarceration, the

United States Department of Justice (DOJ) announced

that it would be undertaking an investigation into

“allegations that SCI Cresson provided inadequate

mental health care to prisoners who have mental illness,

failed to adequately protect such prisoners from harm,

and subjected them to excessively prolonged periods of

isolation, in violation of the Eighth Amendment to the

U.S. Constitution.” J.A. 77. As part of that

investigation, the DOJ conducted a site visit from March

19 to 22, 2012—also while Brandon was incarcerated—

during which it interviewed administrative staff, medical

staff, and prisoners. That investigation, as described in a

report issued on May 31, 2013 (the “DOJ Report”),

revealed “a wide array of policies and practices that were

responsible for systemic deficiencies in SCI Cresson’s

treatment of mentally ill and intellectually disabled

8

prisoners.” J.A. 79; Department of Justice May 31, 2013

Findings Letter, https:// www.justice.gov/sites/

default/files/crt/legacy/2013/06/03/cresson_findings_5-

31-13.pdf (last visited April 4, 2017).

Among other things, the DOJ reported a “system-

wide failure of security staff to consider mental health

issues appropriately,” a “fragmented and ineffective”

mental healthcare program, insufficient mental healthcare

staffing to meet the prison population’s needs, “[p]oor

screening and diagnostic procedures,” poor

recordkeeping “contributing to a dysfunctional system

that undermined continuity of care,” “[d]eficient

oversight mechanisms, including the failure to collect

necessary information on critical incidents, such as acts

of self-harm,” and a lack of training in the proper

response to warning signs by prisoners with serious

mental illness. J.A. 79–80 (citing DOJ Report).

Although Brandon was incarcerated at SCI Cresson while

the DOJ conducted its investigation, he died before it

issued its Report.

Brandon committed suicide on July 16, 2012,

while in solitary confinement. He was 23 years old.

II.

As executors of their son’s estate, Brandon’s

parents filed a five-count civil rights complaint on July 9,

2014 in the United States District Court for the Western

9

District of Pennsylvania, naming a number of prison

officials and mental healthcare providers.5 In that

complaint, the Palakovics presented claims under the

Eighth Amendment that all defendants had been

deliberately indifferent to both inhumane conditions that

Brandon experienced while in solitary confinement and

to Brandon’s serious medical need for mental

healthcare.6 The defendants filed motions under Rule

5

Specifically, the original complaint named John Wetzel

(Secretary of the Pennsylvania DOC), Kenneth Cameron

(SCI Cresson’s Superintendent), Jamie Boyles (SCI

Cresson’s Deputy Superintendent for Facilities

Management), Jamey Luther (SCI Cresson’s Deputy

Superintendent for Centralized Services), Dr. James

Harrington (SCI Cresson’s Chief Psychologist), Dr.

Daleep Rathore (MHM employee and head of psychiatric

care at SCI Cresson), Michelle Houser (Unit Manager in

SCI Cresson’s Secure Special Needs Unit and Special

Needs Unit), Morris Houser (Manager of SCI Cresson’s

Mental Health Unit), Francis Pirozzola (SCI Cresson’s

Security Captain), Shawn Kephart (Pennsylvania DOC’s

Director of the Treatment Services Bureau), MHM (the

company under contract with the Pennsylvania DOC to

provide mental healthcare services at SCI Cresson), and

six John Doe defendants.

6

The constitutional claims initially were brought

pursuant to the Eighth and Fourteenth Amendments, but

10

12(b)(6) of the Federal Rules of Civil Procedure to

dismiss the complaint for failure to state a claim upon

which relief can be granted.

On June 26, 2015, the District Court entered a

memorandum opinion and order granting the motions to

dismiss. Rejecting the Palakovics’ arguments to the

contrary, the District Court concluded that, because the

case involved a prison suicide, the “vulnerability to

suicide” legal framework applied and required the

Palakovics to establish that: “(1) the detainee had a

‘particular vulnerability to suicide,’ (2) the custodial

officer or officers knew or should have known of that

vulnerability, and (3) those officers ‘acted with reckless

indifference’ to the detainee’s particular vulnerability.”7

Palakovic v. Wetzel, No. 3:14-cv-145, 2015 WL

3937499, at *4 (W.D. Pa. June 26, 2015) (First

later court filings clarified that the Palakovics were

pursuing claims under the Eighth Amendment only. The

Palakovics also presented an Americans with Disabilities

Act claim and two state law claims; the resolution of

those claims is not at issue in this appeal.

7

Although the District Court declared that “even if the

vulnerability to suicide standard were inapplicable to

either of Plaintiffs’ two Eighth Amendment claims, the

result would be the same,” First Dismissal, 2015 WL

3937499 at *4, it did not elaborate upon this statement.

11

Dismissal) (quoting Colburn v. Upper Darby Township

(Colburn II), 946 F.2d 1017, 1023 (3d Cir. 1991)).

Because they did not plead facts sufficient to satisfy the

vulnerability to suicide framework, the District Court

dismissed the claims with leave to amend.

On August 7, 2015, the Palakovics filed their

amended complaint. They did not re-plead the claims set

forth in the original complaint and instead presented four

vulnerability to suicide claims against four groups of

defendants.8 They also pled an Eighth Amendment

“failure to train” claim against the supervisory officials.9

8

Count I against SCI Cresson mental health personnel

(Drs. Harrington, Rathore, and Eidsvoog; Dr. Eidsvoog

had not been named in the original complaint); Count II

against corrections officers (Reed, Kushner, Dous,

Boyles, and Luther; Reed, Kushner, and Dous had not

been named in the original complaint); Count III against

supervisory officials (Wetzel, Cameron, Boyles, and

Luther); and Count V against MHM.

9

The amended complaint also set forth claims for

medical neglect, discrimination on the basis of disability,

wrongful death, and a survival action. The disposition of

those claims is not relevant to this appeal. The amended

complaint did not name several of the officials that had

been named in the original complaint—specifically,

12

Two groups of defendants filed a second set of

motions under Rule 12(b)(6) of the Federal Rules of Civil

Procedure to dismiss the complaint for failure to state a

claim upon which relief can be granted.10 On February

22, 2016, the District Court granted the motions and

dismissed the Eighth Amendment claims. See Palakovic

v. Wetzel, No. 3:14-cv-145, 2016 WL 707486 (W.D. Pa.

Feb. 22, 2016) (Second Dismissal). The District Court

again granted leave to amend, but the Palakovics

declined to file a second amended complaint. Instead, on

April 15, 2016, they filed a motion to voluntarily

withdraw the claims against the three remaining

defendants (Kushner, Reed, and Dous) pursuant to Rule

41(a)(2) of the Federal Rules of Civil Procedure for the

express purpose of filing this appeal. The District Court

granted the motion, noting that the Palakovics had

indicated an intention to stand on the amended complaint.

The District Court entered judgment in favor of the

defendants, and the Palakovics timely appealed.

Michelle Houser, Morris Houser, Francis Pirozolla,

Shawn Kephart, and the six John Does.

10

Defendants Dous, Reed, and Kushner were not served

and did not file a motion to dismiss.

13

III.

A.

The District Court had jurisdiction pursuant to 28

U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction to

review a final order of the District Court under 28 U.S.C.

§ 1291. Although we generally do not exercise

jurisdiction where a District Court dismisses a complaint

without prejudice and grants leave to amend, see Borelli

v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976),

such an order is final and reviewable under § 1291

where, as here, a party declares an intention to stand on

the complaint, id. at 952.11

11

Rule 41(a)(1)(B) of the Federal Rules of Civil

Procedure provides that a voluntary dismissal is without

prejudice, unless the order states otherwise. Where a

dismissal is without prejudice, the judgment may not be

final and appealable under 28 U.S.C. § 1291. See

Borelli, 532 F.2d at 951. Here, the voluntary dismissal

order was silent as to whether the claims against

Kushner, Reed, and Dous were dismissed with prejudice.

At oral argument, however, counsel for the Palakovics

clarified that the dismissal was with prejudice and that

the Palakovics have abandoned all claims against

Kushner, Reed, and Dous. This is sufficient to render the

voluntary dismissal final for purposes of appeal.

14

B.

We conduct a plenary review of an order granting

a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). See Allen ex rel. Martin v. LaSalle

Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). The Rules

of Civil Procedure demand that a plaintiff present “only

‘a short and plain statement of the claim showing that the

pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957)) (alteration in original).

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal

quotation marks omitted).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id.; see also Sheridan v. NGK

Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir. 2010). To

assess the sufficiency of a complaint under Twombly and

Iqbal, a court must: “First, . . . ‘tak[e] note of the

elements a plaintiff must plead to state a claim.’ Second,

. . . identify allegations that, ‘because they are no more

than conclusions, are not entitled to the assumption of

truth.’ Finally, ‘where there are well-pleaded factual

15

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an

entitlement for relief.’” Burtch v. Milberg Factors, Inc.,

662 F.3d 212, 221 (3d Cir. 2011) (internal quotation

marks omitted) (quoting Santiago v. Warminster Twp.,

629 F.3d 121, 130 (3d Cir. 2010)).

C.

The Palakovics seek to appeal the District Court’s

First Dismissal, although they did not re-plead their

original conditions of confinement and serious medical

need claims in the amended complaint. Nor did they

express an intention to preserve those claims for appeal.

As an initial matter, then, we must consider whether

appellate review of the First Dismissal has been waived.

In general, an interlocutory order—like the First

Dismissal order here—merges with the final judgment

and is reviewable on appeal from the final judgment

entered in the case. See In re: Westinghouse Sec. Litig.,

90 F.3d 696, 706 (3d Cir. 1996). Also in general, an

amended pleading—like the amended complaint here—

supersedes the earlier pleading and renders the original

pleading a nullity. See W. Run Student Hous. Assocs.,

LLC v. Huntington Nat’l Bank, 712 F.3d 165, 171 (3d

Cir. 2013); 6 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1476 (3d ed. 2010).

Obviously, there is considerable tension between these

two principles as we consider the matter before us—a

16

tension that can be resolved only by deciding which

principle prevails. Under the circumstances presented,

we conclude that, while it would have been preferable for

the Palakovics to have taken express, affirmative

measures to ensure the preservation of their original

claims for appellate review,12 they have not waived those

claims. We may therefore review the District Court’s

First Dismissal.

In United States ex rel. Atkinson v. Pennsylvania

Shipbuilding Co., we observed that “the proper rule

allows plaintiffs to appeal dismissals despite amended

pleadings that omit the dismissed claim provided

repleading the particular cause of action would have been

futile.” 473 F.3d 506, 516 (3d Cir. 2007). We went on

to explain that “[r]epleading is futile when the dismissal

was ‘on the merits.’ A dismissal is on the merits when it

is with prejudice or based on some legal barrier other

than want of specificity or particularity.” Id. (emphasis

added). Thus, when a pleading “error” goes to the legal

requirements of a cause of action, the dismissal is likely

on the merits and should be reviewable on appeal. Id. at

517 n.17.

12

The Palakovics could have more clearly preserved their

original claims by “specifically refer[ring] to or

adopt[ing]” them in the amended complaint. W. Run.

Student Hous. Assocs., 712 F.3d at 171.

17

Here, the District Court’s First Dismissal states

that the Eighth Amendment claims in the original

complaint were dismissed for factual insufficiency. Yet

that conclusion rested upon the District Court’s

application of the vulnerability to suicide framework.

The Palakovics contend that application of that

framework was legal error.

We conclude that the claims in the original

complaint were dismissed on legal grounds, rather than

due to a lack of factual specificity. See id. at 517. It is

apparent that the District Court would not have been

satisfied by a more detailed factual account to support the

Palakovics’ claims. Additional facts simply would not

have addressed the legal flaw that provided the basis for

dismissal—i.e., the failure to plead allegations supporting

a vulnerability to suicide claim. Because repleading

would have been futile, the legal argument that the

vulnerability to suicide framework never should have

been applied is properly raised on appeal. Moreover, if

there were any doubt, Atkinson directs that such doubt

must be resolved in favor of the Palakovics and, thus, in

favor of appellate review. Id. Accordingly, the Eighth

Amendment claims as set forth in the original complaint

have not been waived and we will consider whether the

District Court properly dismissed them.13

13

In contrast with theories dismissed by a legal ruling,

parties voluntarily dropped from an amended complaint

18

IV.

Before turning to our review of the District Court’s

First Dismissal, it is necessary that we take a close look

at the vulnerability to suicide framework that guided the

District Court’s decisionmaking process. Our

vulnerability to suicide jurisprudence is set forth in three

primary cases: Colburn v. Upper Darby Township

(Colburn I), 838 F.2d 663 (3d Cir. 1988); Colburn v.

Upper Darby Township (Colburn II), 946 F.2d 1017 (3d

Cir. 1991); and Woloszyn v. County of Lawrence, 396

F.3d 314 (3d Cir. 2005). These cases addressed claims

that prison officials violated the Constitution by failing to

protect pre-trial detainees from harming themselves. We

discuss each in turn.

do not remain in the case. See Atkinson, 473 F.3d at 518

(“It would be unjust under these circumstances to enable

[plaintiff] to drag [a defendant] back into this case after

[that defendant], by [plaintiff’s] own decision, was

dropped as a defendant.”). Accordingly, the claims

asserted against the four defendants named in the original

complaint who were dropped from the amended

complaint (Michelle Houser, Morris Houser, Francis

Pirozzola, and Shawn Kephart) are waived and may not

be challenged on appeal. We will not consider any

claims in the original complaint as they applied to those

four defendants.

19

In Colburn I, Melinda Lee Stierheim was arrested

for public intoxication. Colburn I, 838 F.2d at 664. Four

hours after her arrest, while in police custody, she died

from a self-inflicted gunshot wound. Id. at 665. Sue

Ann Colburn, Melinda’s mother and administratrix of her

estate, filed a § 1983 complaint against prison officials

alleging, inter alia, that they violated Melinda’s

constitutional rights because they knew or should have

known that Melinda was a suicide risk and therefore had

an obligation to protect her against that risk. Id. The

District Court granted the officials’ motion to dismiss for

failure to state a claim. Id.

We reversed.14 We first examined cases holding

that inmates who had been victims of violence by other

inmates could bring claims under the Eighth Amendment

against their custodians where those custodians

deliberately or recklessly disregarded the risk to those

inmates’ safety. Id. at 667–68. We reasoned that such

14

Because Colburn I was decided long before Iqbal and

Twombly, we applied the standard of review then in

effect: taking all well-pleaded allegations as true, we

construed the complaint in a light most favorable to the

plaintiff and determined whether there was a reasonable

reading of the pleadings under which she may be entitled

to relief. Colburn I, 838 F.2d at 665–66 (citing Estate of

Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d

Cir. 1985)).

20

cases can be analogized to the scenario in which the acts

causing the injury to the prisoner are those of the prisoner

herself. Id. at 668. We further concluded that the

fundamental protections afforded to prisoners under the

Eighth Amendment, like personal security, are also

afforded to pre-trial detainees. Id. Although the Eighth

Amendment does not apply directly to pre-trial detainees,

see Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000),

we concluded that the Due Process Clause of the

Fourteenth Amendment provides pre-trial detainees at

least as much protection for personal security as the level

guaranteed to prisoners by the Eighth Amendment.

Colburn I, 838 F.2d at 668.

We recognized that it would be inappropriate to

place custodial officials in a position in which they must

guarantee that an inmate will not commit suicide. Id. at

669. We decided, however, that this consideration

should not preclude the possibility of a § 1983 cause of

action:

Of course we agree that custodial officials

cannot be placed in the position of

guaranteeing that inmates will not commit

suicide. On the other hand, if such officials

know or should know of the particular

vulnerability to suicide of an inmate, then

the Fourteenth Amendment imposes on

them an obligation not to act with reckless

indifference to that vulnerability.

21

Id. at 669. Because Colburn adequately alleged that the

defendants in her case acted with such reckless

indifference, we held that Colburn could—and did—state

a § 1983 claim against prison officials for their failure to

prevent Melinda’s suicide. Id. at 670–71.

After remand and a period of discovery, the

District Court granted summary judgment in the prison

officials’ favor. The matter then returned to this Court

via a second appeal. Colburn II, 946 F.2d 1017.

In Colburn II, we recognized that “Colburn I

established the standard of liability to be applied in this

circuit in prison suicide cases.” Id. at 1023. We

explained that the vulnerability to suicide framework is

simply a more specific application of the general rule set

forth in Estelle v. Gamble, 429 U.S. 97, 104 (1976),

which requires that prison officials not be deliberately

indifferent to the serious medical needs of prisoners. In

essence, a “particular vulnerability to suicide” is just one

type of “serious medical need.” Colburn II, 946 F.2d at

1023.

We then examined more closely what it means to

have a “particular vulnerability to suicide.” We observed

that an individual’s particular vulnerability to suicide

“speaks to the degree of risk inherent in the detainee’s

condition.” Id. at 1024. That degree of risk must be a

“strong likelihood, rather than a mere possibility, that

self-inflicted harm will occur.” Id. (citations omitted).

22

We explained that a detainee’s “strong likelihood” of

suicide “must be ‘so obvious that a lay person would

easily recognize the necessity for’ preventative action.”

Id. at 1025 (citing Monmouth Cty. Corr. Inst. Inmates v.

Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).

In addition to the particular vulnerability of the

detainee, we also required a relatively high level of

culpability on the part of prison officials before holding

them accountable, i.e., reckless or deliberate indifference

to that “strong likelihood” of suicide. We declined to

precisely define these terms, instead observing that

liability may attach only where the officials’ culpability

is something beyond mere negligence. Colburn II, 946

F.2d at 1024–25. We noted other situations in which

custodians had been found to “know” of a particular

vulnerability to suicide—including, for example, where

“they have had actual knowledge of an obviously serious

suicide threat, a history of suicide attempts, or a

psychiatric diagnosis identifying suicidal propensities.”

Id. at 1025 n.1.

Applying these principles in Colburn II, we

determined that Colburn failed to establish a violation of

Melinda’s Fourteenth Amendment right to Due Process

based upon prison officials’ deliberate indifference to her

particular vulnerability to suicide. Viewing the

developed record in the light most favorable to Colburn,

a rational trier of fact could have concluded only that,

upon her arrest, prison officials knew or should have

23

known that Melinda was intoxicated, had had an

argument with her boyfriend, had tried to ingest three

pills, had a bullet in her pocket, and had faint scars on her

forearm. Id. at 1026–27. Given these facts, we upheld

the District Court’s determination that, as a matter of law,

Melinda’s particular vulnerability was not sufficiently

obvious to hold the prison officials accountable for

failing to prevent her suicide. Id. at 1027.

Finally, we revisited this framework in Woloszyn

v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005). In

that case, Richard Lee Woloszyn was arrested for

attempted burglary and was taken into police custody.

Id. at 316. Several hours later, he was found hanging by

his neck in his cell. Id. at 318. His estate filed a § 1983

action seeking to hold prison officials accountable for

failing to prevent the suicide. Id. at 318–19. After

discovery, the District Court granted summary judgment

in favor of the prison officials. Id. at 319.

On appeal, we first considered the culpability

element set forth in Colburn I and Colburn II—i.e., that

officials “knew or should have known” of a strong

likelihood of suicide. As we did in the Colburn cases, we

once again recognized that while Eighth Amendment

standards do not directly control in pretrial detainee

cases, the “deliberate indifference” standard that applies

to officials under the Eighth Amendment probably is the

“equivalent” to the “should have known” element in a

vulnerability to suicide case involving a detainee.

24

Woloszyn, 396 F.3d at 321. To the extent the issue

remained open, we opted not to conclusively resolve it

because we determined that the developed record was

devoid of evidence of Woloszyn’s “particular

vulnerability to suicide.” Id. at 321–22.

Among other things, the record demonstrated that

Woloszyn had been in good spirits and had specifically

denied being suicidal. Id. at 322. While there was one

witness who testified that Woloszyn had been remorseful

and distant and had discussed both a recent drug and

alcohol binge and his feelings of failure as a father, the

court concluded that “such statements, without more, are

[not] sufficient to create a genuine issue of material fact

regarding knowledge of Woloszyn’s vulnerability to

suicide. They do not show that there was ‘a strong

likelihood, rather than a mere possibility, that self-

inflicted harm will occur.’” Id. at 322–23. We therefore

affirmed the District Court’s grant of summary judgment

in favor of the defendants.

***

In sum, our case law teaches that, when a plaintiff

seeks to hold a prison official liable for failing to prevent

a detainee’s suicide, a pre-trial detainee may bring a

claim under the Due Process Clause of the Fourteenth

Amendment that is essentially equivalent to the claim

that a prisoner may bring under the Eighth Amendment.

Thus, whether a pre-trial detainee or a convicted

25

prisoner, a plaintiff must show: (1) that the individual

had a particular vulnerability to suicide, meaning that

there was a “strong likelihood, rather than a mere

possibility,” that a suicide would be attempted; (2) that

the prison official knew or should have known of the

individual’s particular vulnerability; and (3) that the

official acted with reckless or deliberate indifference,

meaning something beyond mere negligence, to the

individual’s particular vulnerability.15 We must now

consider the application of these principles, where

appropriate, to Brandon Palakovic’s circumstances.

V.

A.

Returning to the first constitutional claim

presented in the original complaint, “Plaintiffs contend

that Defendants were deliberately indifferent by placing

[Brandon] in solitary confinement, given his mental

health vulnerabilities, which deprived him of basic

human needs of environmental stimulation, social

15

In Colburn II, we did not precisely define the terms

“deliberate indifference” or “reckless indifference,”

concluding that, whichever formulation is employed, it

indicates a level of culpability beyond mere negligence.

946 F.2d at 1024. We once again do not find it necessary

to parse these phrases to determine whether there is some

distinction between them.

26

interaction, mental health, and physical health.” First

Dismissal, 2015 WL 3937499 at *4. Considering this

claim, the District Court determined “that this case

involves a prison suicide and that the ‘vulnerability to

suicide’ standard used by courts in this Circuit applies to

Plaintiffs’ allegations.” Id. It concluded that the original

complaint failed to state a claim because it did not allege

facts sufficient to satisfy any of the three prongs of a

vulnerability to suicide claim.16 Id. at *5–6.

16

The District Court reasoned: “First, Plaintiffs have not

alleged facts showing that [Brandon] had a particular

vulnerability to suicide” because the complaint was

“devoid of any factual allegations that there was a strong

likelihood that self-inflicted harm would occur.” First

Dismissal, 2015 WL 3937499 at *5. Next, the District

Court concluded that “Plaintiffs have not alleged facts

showing that Defendants knew or should have known

about [Brandon’s] particular vulnerability to suicide.” Id.

The District Court observed, for example, that “nowhere

do Plaintiffs allege that any of the Defendants had any

knowledge of [Brandon’s] history of suicide attempts or

suicidal thoughts. There are no allegations in the

complaint that [Brandon] attempted suicide while at the

prison or made his suicidal thoughts or tendencies known

to Defendants.” Id. at *6. Finally, the District Court

concluded that the complaint failed to allege facts

27

The Palakovics have consistently argued that this

claim should not have been considered through the lens

of the vulnerability to suicide framework. They sought

to hold prison officials accountable for injuries that

Brandon experienced during his periods of isolation in

solitary confinement while he was alive, not to hold

officials accountable (at least, not directly accountable)

for failing to prevent his death. Their claim was

independent of a particular vulnerability to suicide on

Brandon’s part.

To at least some degree, the District Court was

persuaded to apply the vulnerability to suicide framework

to the Palakovics’ claims because of our language in

Colburn II that “Colburn I established the standard of

liability to be applied in this circuit in prison suicide

cases.” Colburn II, 946 F.2d at 1023. We clarify today

that this statement indicates that the vulnerability to

suicide framework applies when a plaintiff seeks to hold

prison officials accountable for failing to prevent a prison

suicide. It does not, however, preclude other types of

claims, even if those claims also relate to an individual

who committed suicide while in prison.

Here, to the extent Brandon could have brought an

Eighth Amendment claim contesting his conditions of

showing that the defendants were deliberately indifferent

to any vulnerability. See id.

28

confinement while he was alive, his family should not be

precluded from doing so because he has passed away.

We agree with the Palakovics that their original claim

need not have to fit within the vulnerability to suicide

framework, and the District Court erred in dismissing it

solely for that reason.

B.

A claim of inhumane prison conditions may rise to

the level of an Eighth Amendment violation where the

prison official “deprived the prisoner of the minimal

civilized measure of life’s necessities” and “acted with

deliberate indifference in doing so, thereby exposing the

inmate to a substantial risk of serious damage to [his]

future health.” Parkell v. Danberg, 833 F.3d 313, 335

(3d Cir. 2016) (quoting Chavarriaga v. N.J. Dep’t of

Corr., 806 F. 3d 210, 226 (3d Cir. 2015)).

The original complaint alleged that several

defendants were either responsible for Brandon’s

repeated placement in solitary confinement or indirectly

responsible through policies and practices that led to his

repeated confinement there.17 For instance, the

17

A supervisor may be directly liable under the deliberate

indifference test set forth in Farmer v. Brennan, 511 U.S.

825 (1994), if the supervisor “knew or w[as] aware of

and disregarded an excessive risk to the plaintiff[’s]

health or safety[.]” Beers-Capitol v. Whetzel, 256 F.3d

29

Palakovics alleged that supervisory officials Wetzel,

Cameron, Boyles, Luther, and Harrington “all upheld

policies and practices [at SCI Cresson] of sentencing

prisoners to solitary confinement based on behavior that

was caused by mental illness and intellectual disability.”

J.A. 18. In addition, Wetzel, Cameron, Boyles and

Luther had responsibility for, among other things,

disciplinary proceedings and punishment and policies

pertaining to the use of solitary confinement. Finally,

Boyles and Luther were members of the “Program

Review Committee,” which was directly responsible “for

oversight of the RHU, including review of the

appropriateness of placement in the RHU for individual

prisoners.” J.A. 25–26.

The next question, then, is whether those

defendants with responsibility for Brandon’s placement

in solitary confinement were alleged to have sufficient

120, 135 (3d Cir. 2001). A plaintiff “can show this by

establishing that the risk was obvious.” Id. There is

some question as to whether a supervisor may be held

indirectly liable for deficient policies under Sample v.

Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)), as the

Supreme Court may have called the so-called Sample test

into question in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Because the Palakovics have plausibly alleged a claim

based on direct supervisory liability, we need not

consider the unresolved nature of the Sample test today.

30

knowledge that the conditions there were inhumane for

him in light of his mental illness. Before we turn to the

Palakovics’ particular allegations, we first acknowledge

the robust body of legal and scientific authority

recognizing the devastating mental health consequences

caused by long-term isolation in solitary confinement. In

our recent decision, Williams v. Secretary of the

Pennsylvania Department of Corrections, 848 F.3d 549

(3d Cir. 2017), we observed a growing consensus—with

roots going back a century—that conditions like those to

which Brandon repeatedly was subjected can cause

severe and traumatic psychological damage, including

anxiety, panic, paranoia, depression, post-traumatic stress

disorder, psychosis, and even a disintegration of the basic

sense of self identity.18 Id. at 566–67. And the damage

18

While Williams addressed Due Process claims brought

by death row inmates, the conditions on death row there

mirror in many respects those of the RHU as described in

the Palakovics’ amended complaint, including enclosure

in a small windowless cement cell for the majority of

each day, severely limited social contact, and little

exercise or exposure to fresh air. See Williams, 848 F.3d

at 554–55, 563. In Williams, we determined that

indefinite confinement in such conditions, when the

initial justification for the confinement ceased to exist,

caused an atypical and significant hardship relative to the

ordinary incidents of prison life, thereby giving rise to a

protected liberty interest. Id. at 561–64.

31

does not stop at mental harm: “Physical harm can also

result. Studies have documented high rates of suicide

and self-mutilation amongst inmates who have been

subjected to solitary confinement. These behaviors are

believed to be maladaptive mechanisms for dealing with

the psychological suffering that comes from isolation.”

Id. at 567–68 (citations omitted). Against this backdrop

of the extremely serious and potentially dire

consequences of lengthy exposure to the conditions of

solitary confinement, we turn to the sufficiency of the

Palakovics’ claim that prison officials who were aware of

his history of mental illness permitted Brandon to be

repeatedly exposed to inhumane conditions of

confinement and acted with deliberate indifference in

doing so.

The original complaint adequately alleged that the

prison diagnosed Brandon with an array of serious

mental health issues and placed him on a mental health

roster, making it quite reasonable to infer that prison

officials had (or should have had) knowledge of those

diagnoses. The complaint further alleged that Wetzel

and his subordinates were aware that the conditions of

solitary confinement “cause severe psychological harm,

exacerbate pre-existing mental health problems, and

generated the majority of suicides, suicide attempts, and

acts of self-harm at SCI Cresson and throughout the

entire [Pennsylvania DOC].” J.A. 15. While perhaps a

somewhat conclusory allegation on its own, this was

32

buttressed by allegations of the officials’ specific

awareness of suicides and instances of self-harm that had

occurred just before Brandon’s confinement, and was

underscored by the Department of Justice’s announced

investigation, which it conducted for the express purpose

of determining whether SCI Cresson routinely subjected

mentally ill prisoners (like Brandon) to unnecessarily

harmful conditions of confinement.

Considering these factual allegations in light of the

increasingly obvious reality that extended stays in

solitary confinement can cause serious damage to mental

health, we view these allegations as more than sufficient

to state a plausible claim that Brandon experienced

inhumane conditions of confinement to which the prison

officials—Wetzel, Cameron, Boyles, Luther, and

Harrington—were deliberately indifferent.19 We

therefore conclude that the District Court should have

allowed this claim to proceed to discovery.20

19

In contrast, we have not identified any allegations that

could plausibly establish that Dr. Rathore or MHM had

any role in Brandon’s placement in solitary confinement.

Accordingly, the claim was properly dismissed as to

these defendants.

20

To the extent the Palakovics attempted to bring any

Eighth Amendment claims against the prison officials in

their official capacities, such claims were properly

33

C.

dismissed. Official capacity claims are treated as brought

against the State, which is not a “person” under § 1983.

Hafer v. Melo, 502 U.S. 21, 26 (1991). Claims under

§ 1983 may proceed only against the defendants in their

individual capacities. See id. at 31.

34

We next consider the Palakovics’ claim that all

defendants violated Brandon’s constitutional rights by

providing inadequate mental healthcare treatment.21 In

assessing the Palakovics’ serious medical needs claim,

the District Court first observed that “as explained above,

the complaint has not alleged that [Brandon] had a

particular vulnerability to suicide.” First Dismissal, 2015

WL 3937499 at *8. The District Court went on to

conclude that “the complaint does not allege facts

showing that Defendants were deliberately indifferent to

[Brandon’s] serious medical needs related to his mental

health treatment at the prison,” id., because he received

some mental health care while at SCI Cresson:

“[Brandon] was placed on the prison’s mental health

roster, he was prescribed medication, and he was visited

by mental health staff,” id. at *9.22 We disagree with

both conclusions. Neither the failure to plead a particular

vulnerability to suicide nor the acknowledgment that

21

Specifically, the named defendants were prison

officials Wetzel, Cameron, Boyles, Luther, and

Harrington and medical providers Rathore and MHM.

22

While Brandon’s placement on the mental health roster

appears to signify that he required mental health

treatment, we see no basis for a conclusion that

placement on the prison mental health roster alone is a

form of treatment.

35

Brandon received some mental healthcare during his

incarceration precludes this claim.

The Eighth Amendment prohibits prison officials

from being deliberately indifferent to an inmate’s serious

medical needs.23 Estelle v. Gamble, 429 U.S. 97, 104

(1976). “To act with deliberate indifference to serious

medical needs is to recklessly disregard a substantial risk

of serious harm.” Giles v. Kearney, 571 F.3d 318, 330

(3d Cir. 2009). While we have recognized that a

particular vulnerability to suicide qualifies as a serious

medical need, see Colburn II, 946 F.2d at 1023, a

vulnerability to suicide is not the sole need on which the

Palakovics’ claim was focused. Rather, the Palakovics

sought to hold prison officials and mental healthcare staff

accountable for failing to meet Brandon’s serious need

for mental healthcare.

As masters of their complaint, the Palakovics

wished to bring this claim without regard to Brandon’s

particular vulnerability (or lack thereof) to suicide, and

23

A medical need is serious where it “has been diagnosed

by a physician as requiring treatment” or is “so obvious

that a lay person would easily recognize the necessity” of

medical attention. Monmouth Cty. Corr. Inst. Inmates,

834 F.2d at 347. It is undisputed that the allegations of

the complaint demonstrated that Brandon Palakovic had a

serious need for mental healthcare treatment.

36

instead wished to pursue a more general claim under

Estelle that the SCI Cresson officials were deliberately

indifferent to Brandon’s serious need for adequate mental

healthcare and that this indifference led to injury in the

form of deterioration of Brandon’s condition ultimately

leading to his suicide. In other words, they were, once

again, not attempting to directly claim that the prison

officials should be held liable for failing to prevent

Brandon’s suicide.

Where a prisoner has received some amount of

medical treatment, it is difficult to establish deliberate

indifference, because prison officials are afforded

considerable latitude in the diagnosis and treatment of

prisoners. See Durmer v. O’Carroll, 991 F.2d 64, 67 (3d

Cir. 1993). Allegations of mere negligent treatment or

even medical malpractice do not trigger the protections

of the Eighth Amendment. Estelle, 429 U.S. at 105–06.

“Where a prisoner has received some medical attention

and the dispute is over the adequacy of the treatment,

federal courts are generally reluctant to second guess

medical judgments and to constitutionalize claims which

sound in state tort law.” United States ex rel. Walker v.

Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979)

(internal quotations and citation omitted). Deference is

given to prison medical authorities in the diagnosis and

treatment of patients, and courts “disavow any attempt to

second-guess the propriety or adequacy of a particular

course of treatment . . . [which] remains a question of

37

sound professional judgment.” Inmates of Allegheny Cty.

Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting

Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977))

(alterations in original).

Nonetheless, there are circumstances in which

some care is provided yet it is insufficient to satisfy

constitutional requirements. For instance, prison officials

may not, with deliberate indifference to the serious

medical needs of the inmate, opt for “an easier and less

efficacious treatment” of the inmate’s condition. West v.

Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting

Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).

Nor may “prison authorities deny reasonable requests for

medical treatment . . . [when] such denial exposes the

inmate ‘to undue suffering or the threat of tangible

residual injury.’” Monmouth County Corr. Inst. Inmates,

834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d

857, 860 (6th Cir. 1976)). And, “knowledge of the need

for medical care [may not be accompanied by the] . . .

intentional refusal to provide that care.” Id. (alterations

in original) (quoting Ancata v. Prison Health Servs., 769

F.2d 700, 704 (11th Cir. 1985)).

Brandon Palakovic suffered from serious mental

healthcare issues: He had informed prison mental health

staff of prior suicide attempts and self-injury; he had

been diagnosed with a number of serious mental

disorders; and the prison labeled him “Stability Rating

D” and placed him on the prison mental health roster.

38

And SCI Cresson personnel did treat Brandon’s mental

illness while he was an inmate. Specifically, according

to the original complaint, Brandon was prescribed

antidepressant medication and was visited by psychology

staff on three occasions.

The Palakovics claim that, despite this minimal

treatment, the defendants intentionally or recklessly

provided Brandon with mental healthcare that was so

grossly deficient that it violated the Constitution. They

alleged, for instance, that Brandon requested counseling

from a psychiatrist, but his request was ignored and a

psychiatrist did not provide treatment. They further

alleged that medical staff refused to provide Brandon

with necessary forms of treatment and instead relied only

on medication—but then neglected to ever evaluate the

efficacy of the medication, even after Brandon himself

advised staff that the medications were not effective.

More broadly, according to the Palakovics, Dr.

Harrington—chief psychologist at SCI Cresson and the

individual with responsibility for mental health services

throughout the prison—expressly prohibited medical

personnel from speaking with mentally ill prisoners in

solitary confinement “for more than 1–2 minutes at a

time through solid steel doors.” J.A. 27. They further

alleged that SCI Cresson had “systemic deficiencies” in

mental healthcare treatment, and failed “to adhere to the

minimal components of a constitutional prison mental

health care system”—conclusions that the DOJ reached

39

in its investigation. J.A. 20–21. These systemic

deficiencies included punishing the mentally ill rather

than treating them, a fragmented mental healthcare

program with insufficient staffing and poor diagnostic

procedures, and a failure to have any program to identify,

treat, or supervise prisoners at risk for suicide.

According to the Palakovics, “SCI Cresson’s lack of a

systematic program for screening and evaluating

prisoners in need of mental health care caused officials to

understate, delay, and ignore Brandon Palakovic’s need

for mental health care during his confinement.” J.A. 22.

And there is a final, key component to the

Palakovics’ claim, which takes it from the realm of mere

negligence to a potential claim of constitutional

magnitude: the defendants permitted Brandon—with his

fragile mental health condition and history of self-harm

and suicide attempts—to be repeatedly subjected to the

harsh and unforgiving confines of solitary confinement.

Allegedly ignoring the prison’s express written policy,

which acknowledges that placement of mentally ill

prisoners in solitary confinement can increase the

potential for suicide due to the “inherent stress” of those

conditions, the defendants nonetheless “substituted

solitary confinement for treatment.”24 J.A. 22. Thus, the

24

The supervisory defendants (Wetzel, Cameron, Luther

Boyles, and Harrington) are not alleged to have been

personally responsible for Brandon’s mental healthcare

40

defendants are alleged to have affirmatively contributed

to causing Brandon’s serious mental health conditions to

deteriorate. J.A. 16 (“Although Brandon had a ‘history

of self-harm and suicide attempts, he continued to be

placed in isolation, eventually leading to his death.’”

(quoting DOJ Report)).

Considering these allegations and recognizing the

high bar the Palakovics must meet in order to ultimately

prevail, we conclude that they have presented allegations

treatment. Nevertheless, the Palakovics adequately

alleged that the supervisory defendants were directly

responsible for the allegedly unreasonable and dangerous

practice at SCI Cresson of substituting solitary

confinement for mental healthcare treatment, and that

those supervisors knew such placement in solitary

confinement could increase the risk of suicide. The

Palakovics further alleged that, despite that knowledge

and the obviousness of the risk, the supervisory

defendants did nothing. Therefore, the Palakovics

presented a plausible claim of direct supervisory liability

sufficient to survive a motion to dismiss. See Beers-

Capitol, 256 F.3d at 135 (“to make out a claim of

deliberate indifference based on direct liability” plaintiffs

must allege “that the defendants knew or were aware of

and disregarded an excessive risk to the plaintiffs’ health

or safety”).

41

sufficient to state a plausible claim warranting discovery:

Despite receiving some minimal care, Brandon received

mental health treatment while at SCI Cresson that fell

below constitutionally adequate standards, and the

defendants—both the mental healthcare personnel

providing treatment and the supervisory officials and

medical corporation responsible for the prison’s mental

healthcare treatment policies—were deliberately

indifferent to Brandon’s serious medical needs. Thus,

this claim, too, should have survived dismissal.

VI.

After the District Court’s First Dismissal made

clear that their claims would not proceed beyond the

pleading stage if those claims did not include allegations

meeting the vulnerability to suicide framework, the

Palakovics amended their complaint to set forth four

vulnerability to suicide claims and a failure to train

claim. The District Court dismissed those claims as well.

A.

1.

The amended complaint alleged that Brandon

disclosed to prison personnel his history of suicide

attempts, including an attempt in the recent past, his

periodic thoughts of both self-harm and suicide, and even

that he had made specific plans about how he would go

42

about killing himself. He had been diagnosed with an

array of serious mental illnesses, exhibited signs of

depression, shared his suicidal thoughts with prison staff,

and expressed a wish to die. Unsurprisingly, after the

prison considered these indications, it labeled him a

“suicide behavior risk.” J.A. 65. Despite these

allegations, the District Court concluded that the

amended complaint was insufficient to “establish a strong

likelihood that Palakovic would inflict self-harm.”

Second Dismissal, 2016 WL 707486 at *6. We cannot

agree.

When a mentally ill, depressed person has

attempted to kill himself multiple times, has engaged in

self-harm, declares he has been thinking about killing and

harming himself, and has made an actual plan of how he

would carry out his own suicide, it cannot be said as a

matter of law that the risk of suicide is nothing more than

a “mere possibility.” Woloszyn, 396 F.3d at 322 (quoting

Colburn II, 946 F.2d at 1024). Brandon’s suicidal

propensities were so readily apparent that his fellow

inmates nicknamed him “Suicide.” J.A. 69; see Colburn

II, 946 F.2d at 1025 (there is a “strong likelihood” where

a lay person would recognize the necessity for preventive

action). If we were to conclude that Brandon’s

circumstances were insufficient to allege a “particular

vulnerability to suicide,” it is difficult to imagine how

any plaintiff could ever succeed in doing so.

43

Our statements in Woloszyn and Colburn II

requiring a plaintiff to demonstrate a “strong likelihood”

of self-harm were never intended to demand a heightened

showing at the pleading stage by demonstrating—as the

District Court seemed to require here—that the plaintiff’s

suicide was temporally imminent or somehow clinically

inevitable. A particular individual’s vulnerability to

suicide must be assessed based on the totality of the facts

presented. In our view, the sum of the facts alleged in

the amended complaint are more than sufficient to

support plausible inferences that there was a “strong

likelihood” that self-inflicted harm would occur, and that

Brandon therefore suffered from a particular

vulnerability to suicide.

2.

The District Court also determined that the

amended complaint did not allege facts “showing that

Defendants knew or should have known about

[Brandon’s] particular vulnerability to suicide” because

the Palakovics “only generally allege that Defendants

‘were aware of’ or ‘were familiar with’ [Brandon’s]

medical history, vulnerability to suicide, and his

nickname of ‘Suicide.’” Second Dismissal, 2016 WL

707486 at *6. We do not read the amended complaint so

narrowly.

The Palakovics plausibly alleged that defendants

Harrington, Rathore, Eidsvoog, Boyles, and Luther all

44

knew of Brandon’s particular vulnerability to suicide, or

if they did not actually know, at least should have known.

We have observed that prison officials “know” of a

particular vulnerability to suicide where they have had

actual knowledge of a history of suicide attempts or a

diagnosis identifying suicidal propensities. See Colburn

II, 946 F.2d at 1025 n.1. Brandon had attempted suicide

on prior occasions and told prison officials so. The

prison identified Brandon as a “suicide behavior risk”

and rated him “Stability Rating D,” diagnosed him with

multiple, serious mental illnesses known to heighten the

risk of self-harm, and placed him on the “mental health

roster.” The Palakovics allege that all of this information

was set forth in Brandon’s records, which the corrections

officers and medical staff must have—or, at the very

least, should have—reviewed when considering both his

treatment and whether or not to repeatedly place him in

solitary confinement. These facts, taken together, are

sufficient to support a reasonable inference that prison

officials and medical personnel knew or should have

known of Brandon’s particular vulnerability to suicide.

3.

Finally, the District Court concluded that the

amended complaint failed to adequately plead deliberate

indifference on the part of any defendant. In so doing,

the District Court erroneously applied a subjective test,

examining what the officials “were actually aware of as

opposed to what they should have been aware of.”

45

Second Dismissal, 2016 WL 707486 at *7. Yet our case

law is clear: It is not necessary for the custodian to have

a subjective appreciation of the detainee’s particular

vulnerability. Woloszyn, 396 F.3d at 320 (quoting

Colburn II, 946 F.2d at 1024–25). Rather, we have held

that “reckless or deliberate indifference to that risk” only

demands “something more culpable on the part of the

officials than a negligent failure to recognize the high

risk of suicide.” Id. (citation omitted).

After applying the incorrect standard, the District

Court then unnecessarily required the Palakovics to

demonstrate one of three limited factual circumstances—

specifically, where: (1) a defendant took affirmative

action directly leading to the suicide; (2) a defendant

actually knew of the suicidal tendencies of a particular

prisoner and ignored the responsibility to take reasonable

precautions; or (3) a defendant failed to take “necessary

and available precautions to protect the prisoner from

self-inflicted wounds.” Second Dismissal, 2016 WL

707486 at *7 (citing Freedman v. City of Allentown, 853

F.2d 1111, 1115–16 (3d Cir. 1988)). The District Court

observed, “Plaintiffs have failed to allege facts showing

any of these scenarios.” Id.

While these factual scenarios provide helpful

guidance in determining whether a case meets the

vulnerability to suicide standard, each case will present

unique circumstances and should be considered on its

own facts. A failure to track the precise contours of our

46

prior caselaw should not, by itself, compel a conclusion

that a plaintiff has failed to state a vulnerability to suicide

claim. Here, in our assessment, the Palakovics

adequately alleged that the defendants knew of both

Brandon’s particular vulnerability to suicide and his

mental health care needs, but—in disregard of that

knowledge—repeatedly placed him (or permitted his

placement) in solitary confinement, where they knew that

the risk of suicide and mental harm was even greater.

This claim is amply supported by specific factual

allegations.

First, as addressed in the preceding section,

Brandon’s vulnerability was known (or should have been

known) by prison officials. Second, according to the

Palakovics, it was common knowledge that the prison

was being investigated by the DOJ for “provid[ing]

inadequate mental health care to prisoners who have

mental illness, fail[ing] to adequately protect such

prisoners from harm, and subject[ing] them to

excessively prolonged periods of isolation, in violation of

the Eighth Amendment of the U.S. Constitution.” J.A.

77. And, it can hardly be disputed that it is widely

known and understood that solitary confinement is

“characterized by extreme deprivation of social

interaction and environmental stimulation.” J.A. 68.

Finally, and perhaps most importantly, prison officials

were aware of a history of self-harm and suicide in SCI

Cresson’s solitary confinement unit in the recent past: In

47

2011 alone, “14 of the 17 documented suicide attempts at

SCI Cresson occurred in the solitary confinement units,”

J.A. 78, and there were “dozens of incidents involving

prisoners on the mental health roster engaging in self-

harm in the isolation units, while just two such incidents

occurred in the general population.” J.A. 78–79.

These non-conclusory allegations support an

inference that, despite knowing of Brandon’s

vulnerability and the increased risk of suicide that

solitary confinement brings, the defendants disregarded

that risk and permitted Brandon to be repeatedly isolated

in solitary confinement anyway. That is sufficient to

satisfy the plausibility standard and proceed to discovery

on the vulnerability to suicide claims as to defendants

Harrington, Rathore, Eidsvoog, Boyles, and Luther.

B.

The Palakovics also asserted a vulnerability to

suicide claim against MHM, the corporation providing

medical services at SCI Cresson. To state a claim against

a private corporation providing medical services under

contract with a state prison system, a plaintiff must allege

a policy or custom that resulted in the alleged

constitutional violations at issue. Natale v. Camden Cty.

Corr. Facility, 318 F.3d 575, 583–84 (3d Cir. 2003).

Therefore, the question is whether the Palakovics

sufficiently alleged that MHM had a policy or custom

48

that resulted in a violation of Brandon’s Eighth

Amendment rights.

According to the amended complaint, MHM “was

responsible for under-staffing psychiatric staff, not

providing necessary forms of mental health treatment

such as suicide risk assessments and counseling, failing

to ensure adequate frequency of mental health

appointments and that such be conducted in a clinically

appropriate setting, and failing to provide proper medical

oversight of medication regimes.” J.A. 76. Further,

MHM “was aware that SCI Cresson was warehousing

people who were seriously mentally ill and those who

were vulnerable to suicide in solitary confinement, that

this practice was psychologically harmful and medically

contraindicated, and they did nothing to intervene on

behalf of their incarcerated patients.” Id. The Palakovics

buttressed these allegations with findings from the DOJ’s

investigation and subsequent Report. The DOJ Report,

as restated and alleged in the amended complaint,

specifically found that the mental health care provided by

SCI Cresson during the time of Brandon’s incarceration

suffered serious problems including “a dearth of mental

health treatment,” “insufficient[] staff[ing],” and “poor

screening and diagnostic procedures.” J.A. 79–80

(quoting DOJ Report).

The Palakovics alleged that MHM’s policies of

understaffing and failing to provide proper treatment

resulted in Brandon’s isolation, untreated mental illness,

49

and eventual suicide. At the motion to dismiss stage,

these allegations are sufficient to proceed to discovery.

Absent discovery, the Palakovics could not possibly have

any greater insight into MHM’s exact policies or their

impact on Brandon.

C.

Next, the Palakovics raised a vulnerability to

suicide claim against supervisory defendants Wetzel,

Cameron, Luther, and Boyles based upon policies and

practices at SCI Cresson, and a related claim for a failure

to train SCI Cresson staff “on how to manage prisoners

with serious mental illness and those that were vulnerable

to suicide in a manner that would not cause mental health

injuries.” J.A. 88.

As previously discussed, a plaintiff may state an

Eighth Amendment claim against a supervisor based on

policies or practices where the plaintiff alleges that the

supervisors “knew or were aware of and disregarded an

excessive risk to the [plaintiff’s] health or safety[.]”

Beers-Capitol, 256 F.3d at 135. In somewhat cursory

fashion, the District Court held that the Palakovics failed

to allege facts sufficient to establish supervisory

liability.25 Second Dismissal, 2016 WL 707486 at *8.

25

Although the District Court applied the Sample test, we

analyze the supervisory liability claims under the Farmer

test. See supra n.17. In any event, both tests are satisfied

50

We conclude, in disagreement with the District Court,

that the risk here was alleged with sufficient specificity

and factual support to be so obvious that the Palakovics

did plead a plausible claim for supervisory liability.

The Palakovics claimed that the supervisory

defendants established a policy whereby mentally ill and

suicidal prisoners like Brandon were repeatedly placed in

solitary confinement rather than provided with adequate

mental health treatment. In the Palakovics’ view, the risk

of suicide created by repeatedly placing mentally ill

prisoners in a small cement cell with minimal outside

visibility, few possessions, and limited human interaction

is obvious. And, even if it were not obvious, the prior

experience of the supervisors—who were aware of other

instances of suicide and self-harm by prisoners in solitary

confinement—made them aware of the unreasonable risk.

Among other things, the Palakovics cite a specific

incident in May of 2011, less than a year before

Brandon’s suicide, in which another mentally ill prisoner

committed suicide while in solitary confinement. They

allege that the supervisory defendants would have been

aware of that and similar recent incidents of self-harm.

They further allege that the DOJ’s investigation, initiated

by a showing that the risk was “so great and so obvious”

because “the risk and the failure of supervisory officials

to respond will alone support” supervisory liability.

Beers-Capitol, 256 F.3d at 134–35.

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eight months before Brandon’s suicide, would have

contributed to their awareness of the potential dangers of

holding mentally ill and suicidal prisoners in solitary

confinement.

Similar to the policy claim, a failure to train claim

requires a plaintiff to “identify a failure to provide

specific training that has a causal nexus with his or her

injury and must demonstrate that the failure to provide

that specific training can reasonably be said to reflect a

deliberate indifference to whether constitutional

deprivations of the kind alleged occur.” Colburn II, 946

F.2d at 1030. Specifically, in a prison suicide case, this

means that the 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 the

failure of those responsible for the content of the training

program to provide it can reasonably be attributed to a

deliberate indifference to whether the detainees succeed

in taking their lives.” Id.

According to the Palakovics, despite the risk and

the obviousness of the need to correct it, the supervisors

failed to train officials on how to recognize and properly

manage seriously mentally ill and suicidal prisoners,

failed to provide suicide prevention training, failed to

provide training on the adverse impact of solitary

confinement on those with mental illness, and failed to

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train non-medical staff on the importance of consulting

with mental health care providers concerning discipline

and management of mentally ill prisoners. The

supervisors were alleged to have provided essentially no

training on suicide, mental health, or the impact of

solitary confinement, and simply acquiesced in the

repeated placement of mentally ill prisoners like Brandon

in solitary confinement.

According to the Palakovics, the supervisors were

responsible for the policies concerning the treatment of

mentally ill prisoners that gave rise to an unreasonable

risk of Brandon’s suicide, as well as the failure to provide

specific types of training that could reasonably have

prevented it. We must take the factual allegations of the

amended complaint as true, and those facts are sufficient

to support claims against the supervisory defendants.

VII.

Based on the foregoing, we conclude that the

Palakovics properly pleaded claims under the Eighth

Amendment in both their original and amended

complaints. Accordingly, we will vacate the District

Court’s dismissal orders entered on June 26, 2015, and

February 22, 2016, and will remand this matter to the

District Court for further proceedings. On remand, the

District Court should permit the Palakovics to file a

second amended complaint setting forth their Eighth

Amendment claims concerning conditions of

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confinement, inadequate mental healthcare, vulnerability

to suicide, and failure to train.26

26

We reiterate that any second amended complaint may

not plead claims against the three voluntarily dismissed

defendants (Kushner, Reed, and Dous) or the defendants

named in the original complaint who were not named in

the amended complaint (Michelle Houser, Morris

Houser, Francis Pirozzola, Shawn Kephart, and John

Does #1-6), as the Palakovics have abandoned their

claims against each of those individuals. See supra,

notes 11, 13. In addition, the Eighth Amendment claims

should proceed against the remaining defendants in their

individual capacities only. See supra, note 20.

54