Appendix — Arocho v. Lehigh County County (No. 07-1361)

Supreme Court brief2008

Ask Donna

What actually matters in this document.

Text

Q Supreme Cor U.S.

® 071361 APR25 2008

No. ____ OFFIOE OF THE CLERK

Hy the Supreme Court of the Wyited States

RUTH AROCHO, As Administratrix of the ESTATE

OF ENRIQUE RENE VERAS, WADAYS VERAS,

and RUTH AROCHO As Parent and Natural

Guardian of Crystal Veras,and Yashera Veras

Petitioners

“VS ~

COUNTY OF LEHIGH and DALE MEISEL,

Respondents

On Petition for Writ of Certiorari to

The Supreme Court of Pennsylvania

APPENDIX VOLUME II

(Pages 64-147)

DAVID L. DERATZIAN

Counsel of Recard

GEORGE S. KOUNOUPIS

Hahalis & Kounoupis, P.C.

20 East Broad Street

Bethlehem, PA 18018

(610) 865-2608

Attorneys for Petitioner

TABLE OF CONTENTS

Volume II

Lehigh County Prison Policy 5.5

National Commission on Correctional

Health Care Standard

Wexford Health Source Inc. Policies

on Suicide Prevention

Assessment by Lindsay Hayes

Complaint

Petition for Allowance of Appeal to

The Pennsylvania Supreme Court

107

BEST AVAILABLE COPY

To provide written procedures regarding Lehigh County Prison’s suicide prevention

program in order to proteci mmates from self-harm or death.

This policy applies to staff and inmates at Lehigh County Prison.

It is the policy of Lehigh County Prison to provide specia! housing, increased levels of

observ ation, and medical restraint to those inmates who display self-destructive behavior.

Natianal Commission on Correctional Health Care (NCCHC) Standards for Health

Services in Jails 1996-J-05, J-10, J-51

ACA-3-ALDF-4E-11 ACA-3-ALDF-4E-32

ACA-3-ALDF-4E-12 ACA-3-ALDF-4E-34

ACA-3-ALDF-4E-16 ACA-3-ALDF-4E-37

ACA-3-ALDF-4E-20 AUA-3-ALUF 4GE- 38

37 PA Code 95.232

PA Memai Hearn Act ui 1976

IDENTIFICATION & REFERRALS:

. AS pasl OF ihe initial Receiviiyy Sucen, Reyisteicd wu Licensed fractical Nurses shall cvaluate all inmatoc

for suicide risk.

. Any inmate who expresses suicidal ideation or behaviors to a staff member shall be immediately referred

TO Medical stall.

. The refernng staff person shall generate an incident report, and the Shifi Commander shall forward a copy

to the medical department.

2. ASSESSMENT AND COMMUNICATION:

A. A nurse or psyctuatrist will evaluate any inmate who has been identitied as a potential! suicide risk.

. Mt the evaluator concludes that the inmate requires an ince-asad level of care, tho digpastion may include

close observations, suicide precautions or medica! restraint.

(n@ Gtsposttion strali be Cun uiicated to the | lousing Unit Offioor by phone.

D. Medical siafi shall compiete the Medica) Status Form including disposition and level of a

required. A copy of the form shail be distributed to the Shift Commander, Treatment Department

MousINg Uri Olfiver.

. In the case of suicide precautions, the form must be immediately signed by the Shift Commander prior to

distribution. The Shitt Commander shall forward a copy to the Housing Unit Officer (see attachment #1).

F. The Medical Staff shall enter the disposition in the special needs computer program.

3. MONITORING AND HOUSING:

A. Levels ot increased observation and care.

1) Close Observation:

a) Close observation includes a specified time interval for checking an inmate's behavior.

b) Close observation is documerited by the Housing Unit Officer on the Psychiatric Check Report anc

subiuitied to the Mcdion! Dopartmont at the onc of each chitt

c) Medical staff will review the check reporis each shift for any significant changes in behavio j

{attachment #2).

Suicide Precaution: This involves the inmate in an open-barred cell for direct observation, removing, ;

the inmate's clothing and all other cell contents. :

a) The Housing Unit Otficer chall iccus a hnavy hlankel in cood structural Condition to the inmate.

b) The Nurse shail place the inmate on Finger Foods/No Utensil status.

©) Tho Houcing Unit Officer chall nffer a riaily shower to the inmate and directly supervise the inmaty .

showering.

d) The Housing Unit Otficer shall monitor the inmate at regular fifteen-minute intervals (no mor

than fifteen mirudas hatween checks). The checks are staggered so that there is no predictabl —

patter for the inmate to use in planning suicide.

The Housing Unit Officer shall document suicide checks on the psychiainc check form and subm

it tn the medical department at the end of each shift.

Medical staff will review the check report each shift for any significant changes in behavior.

Medical staff will have dailv contact with the inmate.

in the event of an official visitor (i.¢. attomey, parole official) the inmate wil! be dressed ar'

escorted to the appropriate visit area and remain under direct visual} observation by the escortiq

ntfirer

App. 68 5.5 SUICIDE PRECAUTION

Page 3

Medical Resiraints: Upon a physician's order, an innate may be piaced in the Restraint Chair (RC) if

he or she exhibits extreme behavior potentially or actually harmful to self or others and no other less

resirictve weatment is appropriate.

a) The RC is the only approved form of medical restraint.

b) Staff supervising the placing of an inmate into the Restraint Chair must be trained in its use.

c) Medical personne! musi check the initial application of resuaints to ensure circulation is not

impaired.

G) tne inmate will be Uressed bi Clulhing appropriate to tomporaturo unlece othorwice cnarified hy

the mental health order.

e) Medical staff shall make an assessment every two hours of the inmate's behavior, position,

restraims, and heuits cay sevuds (ived, water, climination and cioanlinecs) and encure tha narris

are met.

The Housing Unit Officer shall monitor the inmate at irregular fifteen-minute intervais (no more

Wall Merwe cubsuiss between checks).

The Housing Unit Officer shall document medical restraint checks on a Psychiatric Check Report

Form and submit them to the Medica) Depastment at the end of each shift.

Medical staff will review the check report each shift for any significant changes in behavior.

The Housing Unit Officer sali document each time the inmate is released from medical restraints,

ur tlie: reason for not relcasing the roctrainte.

Medical restraint orders shall not exceed 24 hours.

Medica! ecstraints hall not bo removed withait a physician's order with the following exception.

The Housing Unit Officer shal’ remove the restraints every two hours for ten minutes unless the

inmate is extremely agilaied. The inmate musi be monitored continuously when out of medical

restraints.

B. inmate Monitors

1) Inmate monitors may be assigned at the discretion of the medical stalf to assist Correctional Staff in

diroctly observing inmatec whn ara an cinsa observations, suicide precautions and medical restraints.

2) inmate monitors do not relieve staff from their responsibility to check on the Condition of the inmate.

Effective Date Apni 2U, 2uu)

Edward G. Sweeney, a

STANDARDS FOR HEALTH

SERVICES IN JAILS

NATIONAL COMMISSION ON

CORRECTIONAL HEALTH CARE

(oe . Special Needs and Services

| —

An infirmary is an area within the confinement facility arenmmoadating two ar more

inmates for a period of 24 hours or more, expressly set up and operated for the purpose

of caring for patients who are not in need of hospitalization or placement in a licensed

nursing care facility. Infirmary care is defined as inpatient bed care by or under the

supervision of a registered nurse for an illmess or diagnosis that requires limited

observation and/or management but does not require admission to a licensed hospital or

nursing care facility.

The determination of sufficient and apprepriate health care personnel is based .on the

number of patients, the severity of their illnesses, and the level of care required for cach

and should he addressed in the staffing plan (see J-23). Being within sight or hearing .

of a health care staff person means that the inmate-paticnt readily can gain the person’s

attention. Call lights and buzzer systems are useful ways of ensuring this.

Advancement of the quality of care in this type of medical area begins with the

assignment of respoasibility to one physician. Depending upon the size of the infirmary,

this physician may be employed part- or full-time.

Nursing care policies and procedures should be consistent with professionally recognized

standards of nursing practice and in accordance with the nursing practice act and

licensing requirements of the state. Policies and procedures should be developed on the

basis of current scientific knowledge and take into account new equipment and current

practices.

ihe inpatient record should include admitting uvtes, a Uischaipe plan (sce J-42

Continuity of Care) including a summary if the patient has been discharged. and

complete documentation of the care and treatment given. If the inpatient record is

retained ceparately fram the outpatient record, a enpy of the discharge summary from the

inpatient facility should be placed in the inmate’s outpatient chart.

A licensed nursing care facility ei homage long-term or rehabilitative care to patients with

chronic physical oc mental disabilities.

J-34 Suicide Preveutivu (cascutial)

Written policy and defined procedures require, and actual practice demonstrates, that the jail

hae a program for identifying and responding to suicidal individuals. The program

components include identification, training, assessment, monitoring, bousing, referral,

communication, intervention, notification, reporting, review, and critical incident debriefing.

National Cammission on Correctional Health Care App. 69

While inmates may become suicidal at any point during their stay, high-risk periods —

include the time immediately upon admission to a facility (especially if inmates are ~

intnvieated from alcohol or other drugs); after adjudication, when the inmate is rctumed |

to a facility from court; following the receipt of bad news regarding self or family (such

as serious illness or the Joss of a loved one); and after suffering some type of humiliation

or rejection. Individuals who are in the early stages of recovery from severe depression

Siti

may be at risk as well.

Key components of a suicide pzcvention program include the following:

Identification. The receiving screening form should contain observation and 4

interview items related to the inmate’s potential suicide risk (see the sample .

screening forms and guidelines in Appendix F).

Training. All staff members who work with inmates should be trained to _

recognize verbal and behavioral cues thai indicate potential suicide. The plan —

should include inittal aud subseyucut training.

Assessment. This should be conducted by a qualified mental health ©

profecsional, whn designates the inmate’s level of suicide risk.

Monitoring. The plan should specify the facility’s procedures for monitoring 4

an inmate who has been identified as potentially suicidal. Regular, documented

supervision should be maintained. (Keter to sample suicide precaution prutucul

in Appendix F for further discussion on monitoring.)

Huusing. A suicidal inmato chould not be housed or left alane An appropriate 4

level of observation must be maintained. If 2 sufficiently large staff.is not

available that constant supervision can be provided when needed, the inmate ~

should not be isolated. Rather, s/he should be housed with another resident or

in a dormitory and checked every 10-15 minutes. An inmate assessed as being |

a high suicide risk always should be observed on a continuing, uninterrupted ~

basis or transferred to an appropriate health care facility. The room should be

as nearly suicide-proof as possible (i.c., withuut protrusions of any kind that a

would enable the inmate to hang him/herself).

Reforral. The plan shauld epecify the procedures for referring potentially :

suicidal inmates and attempted suicides to mental] health care providers or —

facilities.

bai

o> © Special Needs and Services

Communication. Procedures should exist for communication between health

care and correctional personnel regarding the status of the inmate (see J-60).

Intervention. The plan should address how to handle a suicide in progress,

including appropriate first-aid measures.

Notification. Procedures should be in place “or notifying jail administrators,

outside authorities, and family members of potential, attempted; or completed

suicides.

- Reporting. Procedures for documenting the identification and monitoring of

potential or attempted suicides should be detailed, as should procedures for

reporting a completed suicide.

. “Review. The plan should specify the procedures for medical and administrative |

review if a suicide or a serious suicide attempt (as defined by the suicide plan)

does occur.

. Critical incident debriefing. Responding to and/or observing a suicide in

progress can be exuemely siressful fur staff aud .inmatcs. The plan should

specify the procedures for offering critical incident debriefing to al] affected

personnel and inmates.

J-52 Intoxication and Withdrawal (cssential)

The responsible physician has approved written policy, procedures, and specitic protocols tor

inmates under the influence of alcohol or other drugs or those undergoing withdrawal.

Inmates experiencing severe intoxication (overdose) or withdrawal are immediately transferred

to @ licensed acute cuic furility. Cstablished guidclinos for the treatment and observation of

individuals manifesting mild or moderate symptoms of intoxication or withdrawal from

alcohol and other drugs are developed and followed. Individuals at risk for progression to

more severe levele of intoxication or withdrawal are kept under constant observation by

qualified bealth professionals or health-trained correctional officers. Mediccl detoxification

is done only under medical supervision in accordance with local, state, and federal laws.

1scussi

Significant percentages of inmates admitted to correctional institutions bave a history of

alculul ur other drug abuse. Newly incarcerated individuals may enter intoxicated or

develop symptoms of alcohol or other drug withdrawal. Alcohol withdrawal is the

abstinence syndrome with the highest mortality rate, although opiate and tranquilizer

withdrawal are. on occasion, life-threatening. Barbiturate withdrawal, while rare in

Wexford Heah® Sources, Inc.

Guidelines and Standards far Correctional Health Care - tails

Suicide Prevention - Essential

Subject: Suicide Prevention; J-51.0U

Purpose: To outline program to effectively addiess the risk of suicide within the inmate

population.

Procedure: 1. Inmates will be evaluated for potential suicide risk at intake, as outlined in

Policy 30.00, Receiving Screening,

2. Potentially suicidal inmates wil] be managed as outlined in Policy 51.01,

Management of Potentially Suicidal Inmates.

3. Administrative review of completed suicides wii] be as outlined in Policy

10.00, Procedures in the Event of an Inmate Death.

4. Training of correctional) staff in the identification and management of

suicide risk will be as outlined in Policy 19.00, Training for Correctional

Officers.

5. Since observing a suicide in progress can be extremely stressful for staff

and inmates, critical incident debriefing measures will be offered to all

pespuinding teoalals aac pessuiuacl, as well as to ubsciving usetes. The |

Health Care Unit Administrator shall appoint a health care staff member

qualified to refer affected persons to a mental health professional.

Refereners National Conmnission on Cosvectionsd Health Care’ Standards for Health Services in Jails, 1996 3-51

3 Ase Keanderde for Adult Lacal [Neterntem Berchroe, rd Pdituen, 1001) tial NEAR.

Es NX aa

Health Care Unit Administrator Date

_ ell bd ta

ee —

Medical Director Date

154

_ Wexford Heaith Sources, Inc.

Guidelines and Standards for Correctional Health Care - Jaile

Management of Potentially Suicidal Inmates

Suicide Preveutium - Munaygement of Potentally Suicidal Inmates; J-5 1.01

To establish guidelines and procedures to manage suicidal, or potentially suicidal

inmates, caneictent with cemwity requirements and accepted mental health

practices.

Whenever an inmate demonstrates or reports a nsk for self-destructive behavior,

immediate assistance will be provided.

Precaution procedures will be implemented until] evaluation by mental

health otalT,

Mental health evaluation will determine the subsequent actions needed to

provide the inmate support and monitoring during critical period

Institutiona) staff will be trained in the identification of potentially suicidal

inmates. Signs of risk for self-destructive behavior include the following:

a. Inmate engages in, or atiempts to engage in behavior with potential

for self-harm (e.g., swallows razor blades, places plastic bag over

head, sclf-mutilation).

Inmate threatens to attempt suicide.

Pee Aye

Health Care Unit Administrator

6k Im ke

Medical Director

Wexford Heaffit Sources, Inc.

(Guidelines and Standarde far Carrectinnal Health Care - Taile

Procedure:

Management of Potentially Suicidal Inmates (Continued)

Inmate talks about suicide or self-injurious behavior with staff or

other inmate(s).

Inmate has a documented history of previous suicide attempt(s) or

self-harm.

Inmate exhibits markedly sad, tearful behavior, or reduced

emotional reactivity.

Inmate makes vague references w death.

Inmate exhibits dramatic shift from depression to elation, or

agitated depreccinn tn calm

Inmate appears withdrawn with minimal responding, typically in

flat ermotionless tone.

Inmate informed of significant family crisis (¢.g., death of family

member, divorce).

Inmate has recently been sentenced, or denied release.

Inmate has canflicting feelings about impending release.

Referral of Potentially Suicidal Inmate

Inmate who has attempted suicide will receive immediate medical

attention. Once emergency medical treatment is completed, mental

health staff wil) perform evaluation.

In all incidents of suicide, or suicidal attempts resulting in

hospitalization, the Health Care Unit Administrator will be notified

immediately.

Any staff member of the institution concerned that an inmate may

be potentially suicidal will inform the medica} staff immediately.

156

Wexford Heatth Sources, Inc.

Guidelines and Standards for Carractinnal Realth Care ~ Jaile

Management of Potentially Suicidal Inmates (Continued)

Procedure: a. An inmate identified as potentially suicidal will be evaluated as

soon as possible by mental health staff. Pending evaluation, the

inmate will be kept under constant observation.

3. Evaluation of Potentially Suicida] Inmate

a. Evaluation by mental health staff will include, but not be limited to

the assessment of the following:

1. Inmates mental] status

- fuunates self-report or behavior resuluing tn referral

% Current suicidal risk (ideation, plans, lethality of plan, recent

stressors, goal or behavior)

&. Histary of snicidal hehavinr / ideation, haw often, when

method used or contemplated, why, Consequences of prior

attempts / gestures

5. Inmates report of his/her potential for suicidal behavior

b. Mental health staff will consult with =sychiatrist to assist in

evaluation if needed.

“s. Whenever mental health staff feels unable to make judgment of

current suicide potential, the inmate will be managed as potentially

snicidal

4, Disposition

a. If mental health staff determines that suicide threat was issued as a

manipulative gesture, inmate presents no evidence of psychological

distress, and inmate denies current suicidal) ideation / intention, the

inmate wil) be rctumed to housing unit with recommendation that

mental health staff be contacted if nceded.

b. If mental health staff determines that inmate is depressed and/or

’ anxious, but not an actual suicide msk, the inmate will be

counscled and returned to housing unit. Inmate will be monitoreé

by mental health staff until the presenting symptoms have remitted.

157

References Nat

Guidelines and Standards far Correctional Hoalth Carc - Jails

Management of Potentially Suicidal Inmates (Continued)

Cc.

Wexford Heaffhi Sources, Inc.

if mental health statf determines that inmate is in danger of

immediate or delayed self-harm, the inmate will be place under

suicide precautions.

S. Precautions for potentially suicidal inmate.

Inmate will be placed in area designated hy security tn permit close

observation. If constant observation cannot be maintained, inmate

will be place in area with other inmates, but having restricted

access to instruments for self-harm.

If a stripped cel) is used for close observation, security staff wil!

inspect cell prior to inmate placement to ensure no items available

far potential self-harm.

Inmate will only be allowed personal property appropriate to level

of suicidal potential. If risk of suicide is clear and immetfiate.

inmate will be stipped of all clothing and issued one blanket.

Inmate who is engaging in self-injurious behavior after placement

in: sculusius coll will be Considered sor transieT to inpatient

psychiatric setting.

Inmate will he nhserved at leact every chift by the nursing staff.

These observations will be documenied by completion of Mental

Health Observation form.

Inmate in suicide precaution status will be evaluated daily by

medical staff, or psychiatrist when available. Staff will consider

transfer to an inpatient psychiatric setting if suicide potential

Pcisish.

| Commission oa Correctional Health Care: Standards fos Health Sesveces ia Jails, 1996. 3-51.

American Carrectiona! Acsocianoa: Standards for Aduh Loca) Deienuon Facilnies, 3rd Edition. 1991. J-ALDF-4E-34.

158

App. 76

ASSESSMENT OF AROCHO v. LEHIGH COUNTY, ET. AL.

Introduction

Detailed below is this writer's assessment of the above captioned case. Such assessment :

based upon revicw of documents supplied to date and identified below. As such, this wii or

reserves the option of amending and/or enlarging upon this assessment if subsequent do ents |

bccome avaliable.

By way of background, this writer is a project director of the Nationa] Center on Institution |

and Alternatives, with an office in Mansfield, Massachusetts. A nationally recognized expert in the

field of suicide prevention in correctional facilities, this writer has served as project director for t 2

only fra natinnal UES hicticn Nepartment-finded chidies of jail, prisnn, and juvenile cnicide

Since 1986, this writer has also served as editor and project director for the Jail Suicide/Mentas

Health Update newsletter, a quarterly publication devoted to research, training and prevention that

is funded by the U.S. Justice Department. This writer has authored over 60 other publications in the

area of suicide prevention in jail, prison, and juvenile facilities. These publications are listed in the

curriculum vitae attached as Exhibit !.

In addition, cince 1983, this writer has served as a consultant in providing staff training and

program assessmenvdevclopment services in the area of suicide prevention in correctional facilitie

to numerous local and state jurisdictions throughout the country. ‘his wmniter also serves as th: :

suicide prevention consultant to the Special Litigation Section of the U.S. Justice Department’-

Civil Rights Division in its investigation of conditions of confinement in various correctionar

facilities, serves as an expert consultant to court systems in the development and monitoring of jait

App277

and juvenile suicide prevention programs; and serves as a consultant to several state departments of

correction and state juvenile correctional agencics in the area of suicide prevention. Further, this

writer has served as an expert witness/consultant in over 240 litigation cases involving suicide in

carrectional facilities, and has heen qualified as an expert in hoth federal and state courts throughout

the country.

This writer was a recent past recipient of the National Commission on Correctional

Health Care’s Award of Excellcnce for outstanding contribution in the field of suicide prevention

in correctional facilities. This writer’s work has been cited in the suicide prevention sections of

various state and national correctional health care standards, and training curricula has been

utilized by hundrodu of correctional agencies throughout the country.

Finally, as a result of research, technical assistance, and consultant work in the area of

suicide prevention in correctional facilities, this writer has reviewed and/or cxamined over 1,500

causes of suicide in jail, prison, and juvenile facilities throughout the country during the past 25

years.

Ducuurcuis Review od

The following documents were reviewed in preparation of this assessment. They include:

Complaint in Civil Action; Answer and New Matter; Plaintiffs’ Answer to Defendants’ New

Matter; Defendants’ Response to Plaintiffs’ First Request for the Production of Documents;

Defendants’ Answers to Plaintiffs’ Expert Interrogatories; Defendants’ Response to Plaintiffs’ First

Set of Interrovatories: various arrest and Lehigh County Prison records of Ennque Veras:; various

Apes7a

medical and mental health records of Mr. Veras while he was confined in the Lehigh County Prison

incident reports/statements written by various |_chigh County Prison personnel regarding Mr. Vera:

suicide attempts in the Lehigh County Prison on February 10, February 11, March 30, October 2" :

OActoher IR and December 4, 2002. as wel! as his suicide on December 5. 2002: DV Divideotar

recording of Mr. Veras’ housing unit during the afternoon of December 5, 2002; lesson plan an

class rosters of Lehigh Cousity Prison’s suicide prevention taining from 1995 thru 2002; beter

reports regarding a prior inmate suicide and prior inmate suicide a‘tempts in the Lehigh Count

Prison; various |ehigh County Prison policies, including suicide prevention, inmate monitor,

health care, an¢ use of force and application of restraints; and deposition transcripts of Dal

Albright, John Donate, David Dreisbach, David Eitemiller, Ronald Kiefer, Clifford Knappenberge ;

Robert McFadden, Dale Meisel, Nelson Santingo, Garry Siers, Fetwand Swerney, Alex Thea

MD, Gregory Thomas, John Urban, and Tyrone Wright.

Finally, this writer has relied upon the Commonwealth of Pennsylvania's Title 37, Chapte

95. County Correctional Institutions; the American Correctiona! Association (ACA)’s Standare

for Adult Local Detention Facilities, Third Edition (1991) and pertinent Supplements; as well as th :

National Commission on Correctional Health Care (NCCHC)’s Standards for Health Services 1

Juils (1996).

Case Analysis

The Complaint contains several allegations that the Defendants displayed both negligenc —

and deliberate indifference to Enrique Veras, the proximate result of which was his suicide in # :

Lehigh Cnty Prison on the afiernwon of December 5, 2002. This writer was asked by plaintiff.

App 4a

counsel to examine the Complaint, as well as pertinent documents available in this case to date, and

give an opinion as to whether, through policy and practice, the actions and/or inactions by the

Defendants were either contrary or inconsistent with both national jail standards and standard

correctional practice, and were the proximate causes of Mr. Veras’ death.

According to available records, 45-year-old inrique Versa was hrst contined in the Lehigh

County Prison on February 8, 2002 for various charges, including alleged criminal attempt at

kidnapping, unlawful restraint, and aggravated assault. He was assessed as being both mentally ill

and suicidal soon after his confincment. During the intake process, Mr. Veras became incoherent

and it was determined that he had suffered from an overdose of his psychotropic medication. A

razor blade was later found in hie clothes. Mr. Veras wus placed on suicide precautions with the

requirement of observation at 15-minute intervals. Two days later on February 10, he was observed

to be bleeding from self-inflicted lacerations on his right wrist. He was provided treatment by

nursing staff and remained or suicide precautions with observation at 15-minute intervals. The

following day (February !1), Mr. Veras was observed with a noose around his neck and tied to the

cell bars. The ligature was removed and he remained on suicide precautions. On March 30, he was

again placed on suicide precautions with the requirement of observation at 15-minute intervals for

slf-injurious behavior. Mr. Vcras was releascd from the Lehigh County Prison on April 2, 2002.

Mr. Veras was again confined in the Lehigh County Prison on October 27, 2002 for charges

that included alleged aggravated assault and reckless endangerment. At the scene of arrest, he

threatened suicide by placing a knife to his throat. He also appeared depressed (‘feeling so bad”)

and threatened suicide (“can’t live anymore”) during the intake process. Mr. Veras self-reported a

App-80

history of mental illness, psychiatric hospitalization, and psychotropic medication. He also .

observable scars from previous self-inflicted injuries. He was placed on suicide precautions in he

reception unit (1D2) with the requirement of observation at 15-minute intervals. Several hours

Mr. Veras began to engage in celf-injurinuc hehavine hy repeatedly throwing himcelf on the

and wall of his ccll causing head trauma, and was placed in a restraint chair and

psychotropic medication. He continued to be observed as ‘quite tearful and depressed.” Mr. Ven

was subsequently removed from the restraint chair but remained on suicide precautions with "

requirement of observation at 15-minute intervals. The following day (October 28), Mr. Veras

found hanging from the cell bars by a blanket that he had torn into strips. Although the a

nurse declared that “he’s gone,” Mr. Veras remained conscious and was placed in a restraint ¢ as

aftcr continuing to threaten suicide. Ifo was subsoquontly roleased from the rectraint chair

remained on suicide precautions. On November 4, Mr. Veras was relocated to the mental health

(1D1) and remained on suicide precautions until Novembcr 14. Although Mr. Veras rer

housed in the mental health unit, as a result of his suicidal behavior, as well as assaultive behavior

staff, he was punished by receiving a sanction of disciplinary segregation.

During the evening of December 4, 2002, Mr. Veras was requested to change cells in th

micrital lealus unit. He icfusal, bounce very agitatal aal was fucfully nnioved from the unit an

relocated in the segregation unit (3C1) at approximately 8:50pm. Upon placement in bi

segregation cell, Mr. Veras remained agitated and began to engage in various forms of sel Finjuriow

behavior, including banging his head against the floor, bunk and wall; climbing on the top bunk ane

purposely falling off to the concrete floor, attempting to flush is head down the toilet; and trying i

Apps ey

hang himself by tying his underwear around his neck and to the towel bar in the cell. He was again

placed in a restraint chair.

A fow hours later at approximately 19:39 am an Necember §, 2007), Mr. Veras was released

from the restraint chair and placed on suicide precautions with the requirement of observation at 15-

minute intervals. For unexplained reasons, he was reportedly observed at 4U-minute intervals

during the next several hours. Beginning at approximately 7:30am, the officers’ logs reflected

observation at exact 15-minute intervals. ‘The last documented observation of Mr. Veras on suicide

precautions occurred at 4:00pm on December 5, 2002. At approximately 4:16pm, a correctional

officer found Mr. Veras hanging from the cell bars by strip of bed sheet. (According to the

videvuape roouidiiyg Of three Insusing unit and the suicide attempt, tho last timo that an officer was in

the housing unit was approximately 3:45pm and that officer did not walk past Mr. Veras’ cell. Mr.

Veras is secn on the videotape to be tying the sheet to the cell bars at 3:56pm and the sheet is visible

from that time forward until he was found hanging 20 minutes later at 4:16pm.) The officer called

for back-up personne] and several correctional stuff arrived shortly thereafter and assisted in cutting

the sheet away from the hars. The cell door was opened and Mr. Veras was placed on the floor.

Other correctional personne) arrived in the housing area and stood around the victim.

Approximately two minutes later at 4:19pm, medical sualT arrived wad initiated Gaudivpulusnasy

resuscitation. At approximately 4:29pm, emergency medical services personnel arrived and

continued life-saving measures. Mr. Veras was then transported to a local hospital and

subsequently pronounced dead.

Opinions

Based upon rcvicw of the case file materials and above summary, this writer offers th

following opinions. Firsi, there was overwhelming evidence to show that Enrique Veras was ai

a continuing high rivk for cuicide in the Lehigh County Prison, and that continuing high risk .

known to the defendants and various personnel. Second, the Lehigh County Prison had gro: ly

inadequatc policies and practices in the area the suicide prevention (particularly levels of

observation and safe housing) that were the proximate causes of Mr. Veras’ suicide because ri

was Teasonable to ussume that the provision of grossly inadequate supervision for continuing i

risk suicidal behavior, as well as placement in a dangerous cell, would ultimately result in t

suicide. ‘The basis for these opinions is offered below.

1) Notice of Continuing High Suicide Risk

There was overwhelming evidence to show that Enrique Veras was at a continuing hig)”

risk for suicide in the Lehigh County Prison, and that continuing high risk was known to thy

Defendants and various personnel. Prison officials and staff disregarded this obvious high rst

hy failing te take appropriate steps to ensure Mr. Veras’ safety during his periodic confinemen :

in the Lehigh County Prison from February 8 thorough December 5, 2002. Such action (of

inaction) was completely unreasonabdile and lackcd Common sense.

Mr. Vcras‘ continuing high risk for suicide during his confinement in the Lehigh County

Prison was graphically exemplified by the following known facts: 1) he had a history of menta-

illness, psychiatric hospitalization, and psychotropic medication; 2) he was observed to kk

doprosacd, agitated, incohorent, “quite toarful” and crying, and dicplaying numerous celf-inflictes ©

App Sea

injuries and scars, 3) he self-reported both depression (“feeling so bad’) and suicidal ideation

(“can’t live anymore”), as well as requested to remain in the restraint chair when feeling the impulse

to engage in suicidal behavior, and 4) engaged in self-injurious behavior on a least seven separate

occasions (immediately prior to or) during his confinement:

psychotropic medication,

on February 10 when he was observed to be bleeding from lacerations on his

right wrist,

on February 11 when he was observed with a noose around his neck and tied

to the ccil bars,

on March 30 when he was observed engaging in self-injurious behavior,

on October 27 when he repeatedly threw himself on the floor and wall of his

cet! causing head trauma,

on October 28 when he was found hanging from the cc!) bars by a blanket

that ho had torn into stripo, and

on December 4, 2002 when he observed banging his head agaizst the floor,

bunk and wall; climbing on the top bunk and pusposely falling off to the

concrete floor, attempting to flush is head down the toilet; and trying to hang

himself by tying his underwear around his neck and to the towel har in the

cell.

Despite Enrique Veras’ continuing high risk for suicide during his confinement in the Lehigh

County Prison, the response from the Defendants and staff was the following: placement on

suicide precautions in various unsafe cells with the requirement of observation that did not include

constant observation (sce below), periodic assessment by contracted medical and mental health

staff. psychotropic medication. and periodic placement for u few hours in a restraint chair. These

responses were grossly inadequate because Mr. Veras was permitted to continuc to engage in self-

injury and ultimately commitued suicide in de Cavility

2) Grossty Inadequate Policies and Practices

‘The Lehigh County Prison had grossly inadequate policies and practices in the area

auicide prevention (particularly levele of obcervatinn and <afe honing) that were the proxi )

causes of Mr. Veras’ suicide. A written suicide prevention policy is a prerequisite for running :

correctional facility. \he importance of written policy in suicide prevention is clearly stated 0

the American Correctional Association (ACA)'s Standards for Adult Local Detention Facil /

(3-ADLF-4E-34): “There is a written suicide prevention and intervention program that

reviewed and approved by a qualified medical or mental health professional.”' In addition, t :

National Commission on Correctional Health Care (NCCHC)’s Standards for Health Service

July U-351) voquites cal: jail w have a written suicide prevention plan that includes the

following components: identification, training, assessment, monitoring, housing, refe

communication, intervention, notification, reporting and review.“

The Lehigh County Prison’s suicide prevention policy (No. 5.5, effective April 20, 2001)

states that the facility will “provide special. housing. increased levels of observation, and medical

restraint to those inmates who display self-destructive behavior.” The policy references both :

ACA and NCCHCL standards, and Vale Meisel, warden of dive Lehigh Cuumy Prisou, aal Cdward

Sweeney, director of corrections for Lehigh County, both testified in their respective depositions |

that the suicide prevention policy was largely based upon ACA and NCCHC standards, Yet

"American Correctional Association (1991), Standards for Adult Local Detention Facilities (3rd Edition),

Lanham, MU: Author.

2National Commission on Correctional Health Care (1996), Standards for Health Services in Jails (3rd

kdition), Chicago, IL: Author,

aod Qs

although Policy 5.5 includes provisions for identification, assessment/ communication, and

observation, it is not consistent with ACA and NCCHC standards and is grossly inadequate.

Far evample, ACA standard 3-AL.DF-3D-O8 states that:

Written policy, procedure, and practice require that all special

management inmates are personally observed by a correctional officer at

least every JU minutes on an irregular scheduic. Inmates who ure vivier

or mentally disordered or who demonstrate unusual or bizarre behavior

receive more frequent observation, suicidal inmates are under continuous

observation (emphasis aria)

In addition, ACA standard 3-ALDF-4E-34 states that:

There is a written suicide prevention and intervention program that ts

reviewed and approved by « qualified medical or mental health

professional. Ali staff with responsibility for inmate supervision are

trained in tho implementation of the program.

Comment: The program should include specific procedures for intake

screening, identification, and supervision of suicide-prone inmates.

Finally, ACA standard 3 ALDF 1D 12 ctatee that all correctional staff are required to

have annual instruction in suicide prevention (“signs of suicide risk” and suicide precautions”).

The Lehigh County Prison’s suicide prevention policy is also in violation of NCCHC

standards. For example, NCCHC’s suicide prevention standard (J-51) requires the following:

1) Identification. The receiving screening form should contain

observation and interview itcms related to the inmate’s potential suicide

risk.

2) Training. All staff members who work with inmates should be trained

to recognize verbal and behavioral cues that indicate potential suicide. The

man should include initial and subscaucn’ training.

aed. bs

3) Assessment. This should be conducted by a qualified mental health

professional], who designates the inmate's level of suicide risk.

4) Monitoring. The pian should specify die [wility’s proceduics fu

monitoring an inmate who has been identified as potentially suicidal.

Regular, documented supervision should be maintained.

5) Housing. A suicidal inmate should not be housed or left alone. An

appropriate Icvel of observation must be maintained. If a sufficiently large

staff is not available that constant supervision can be provided when

needed, the inmate should noi be 1sofated. Kather, s/he should be housed

with another resident or in a dormitory and checked every 10-15 minutes.

An inmate assessed as being a high suicide risk always should be observed

on a continning, wninterrupted hacic ar tranvferred ta an appropriate

health care facility. The room should he as nearly suicide-proof as

possible (i.¢., without protrusions of any kind thai would enable the inmaie

to hang him/herself). (Emphasis added)

6) Referral. The plan should specify the procedures for referring

potentially suicidal inmates and attempted suicides to mental! health care

providers or facilitiou.

7) Communication. Procedures should exist for communication between

health care and correctional personne! regarding the status of the inmate.

8) Intervention. The plan should address how to handle a suicide in

progress, including appropriate first-aid measures.

9) Notification. Procedures should be in place for notifying jail

administrators, outside authorities, and family members of potential,

attempted, or completed suicides.

10) Reporting. Procedures for documenting the identification and

monitoring of potential or attempted suicides should be detailed, as should

pruceduics fur sepurting a completed suicide.

if) Review. The plan should specify the procedures for medical and

administrative review if a suicide or a serious suicide attempt (as defined

by the suicide plan) does occur.

12) Critical incident debriefing. Responding to and/or observing a

suicide tn progress can be catrcrucly stiessful fur stall aed ituuates. The

plan should specify the procedures for offering critical incident debriefing

to all affected personnel and inmates.

pod. 37

The Lehigh County Prison’s suicide prevention policy provides two levels of observation

for suicidal inmates: suicide precaution and close observation. According to both the policy and

deposition testimony in this case, there is little discernable difference between the two

supervision levele In practice, inmates an euiride precaution status are stripped naked of their

clothing, all items (with the exception of a blanket) are removed from the cell, and they are

observed “at irregular 15-minute imtervals (no more than 15 minutes between checks). The

checks are staggered so that there is no predictable pattern for the inmate to use in planning

suicide.” Inmates on close observation status are allowed to retain their clothing and other

possessions and are observed at staggered 15-minute intervals. (It should be noted that, contrary

to Lehigh County Prison policy, Mr. Veras was observed for several hours on December 5 at 30-

minute intervals, and wan raroly observed at ctaggered or “irregular” {S-.minute intervals while

on cither close observation or suicide precaution status. Instead, the officers’ logs were recorded

at exact 15-minute intervals.)

Most importantly, according to the suicide prevention policy and deposition testimony of

most deponents, both the policy and the practice of the Defendants was not to provide constant

observation to high risk suicidal inmates (i.c., “under continuous observation” per ACA

standards wt “on u curdinuiny, uningers upted busis” per MCCLIIC standards) confined within tho

Lehigh County Prison.

As exemplified in Mr. Veras’ case, the placement of an inmate identified as a continuing

high risk for suicide on an observation level requiring supervision at 15-minute intervals is grossly

inadequate and contrary tn national correctional standards and standard correctional practices that

pod ta

require constant observation and consideration for hospitalization. Observation at 15

intervals is routinely reserved for inmates assessed as being either at low or moderate risk for

suicide. [1 defies common sense to expect thal observation at 15-minute intervals will successful ,

thwart the cnicide attempts of a highly suicidal individual.

In tact, the Lehigh County Prison was emphatically wamed of Mr. Veras” liph tisk suic

behavior when, upon his discharge from the emergency room of Sacred Heart Hospita) on Octo “1

27, 2002, the physician stated: “BE ABSOLUTELY WATCHFUL OF HIS BEHAVIOR |

CONSIDER THIS PATIENT HIGH RISK FOR REPEATED SEIF-INJURY. MUST HAVE

SOMFONE WATCHING HIM AT ALL TIMES.” A review of all available records in this casa’

indicates that the dofendanto and their ctaff never placed Mr. Veras on ennctant ahxvervatinn

considered psychiatric hospitalization for his continuing high risk suicidal behavior. Such inactic ;

was unconscionabic because it was reasonable to assumc that the provision of grossly inadequate

supervision for continuing high risk suicidal behavior would ultimately result in his suicide.

Further. the deposition testimony in this case revealed that even the alleged observatior

of Mr. Veras at 15-minute intervals was not always performed by an officer physically walking

past nts Cell, but rauter by ae uffice: stativncd tsidc Ux coatiol] booth which was cstimated to be |

between 30 and 40 feet from Mr. Veras’ ccll and partially obstructed by the stairway. Ale

Thomas, MD. a consulting psychiatrist to the Lehigh County Prison, stated in his deposition (a |

pages 32-33) that it would be improper for a control booth officer to be responsible for th

observation of suicidal inmates, and that he was unawure that such a practice was occurring a

the | chigh Camnty Prison

As previously stated, the lasi time that an officer was in Mr. Veras’ housing unit on

December 5 was al approximately 3:45pm and that officer did not walk past Mr. Veras’ cell. Mr.

Verac can he ceen on the videotane to he tying the sheet to the cell bars at 3:56pm and the sheet is

visible from that time forward until he was found hanging 20 minutes later at 4:16pm. It is obvious

that none o! the ofhcers assigned to the housing unil {including the control officer) adequately

observed Mr. Veras prior to his death, the proximate causc of which was his ability to successfully

commit suicide. In essence, had the Defendants and their staff followed standard correctional

practices and national correctional standards, Mr. Veras would have been observed on constant

observation following his most recent high risk self-injurious behavior on December 4 and not had

the ability to sucwcusfully commit cuicide on Docember 5, 2005.

With regard to housing of suicidal inmates, consistent with national correctional

standards and standard practices in correctional facilities throughout the country, housing

assignments should be based on the ability to maximize staff interaction with the inmate,

avoiding assignments that heighten the depersonalizing aspects of incarceration. Ideally, suicidal

inmates should be housed in the general population, mental health unit, or medical infirmary,

tuvated clusc tu siaff All cclls designated to housc suicidal inmates should be suicide resistant,

free of all obvious protrusions, and provide full visibility. These cells should contain tamper-

proof light fixtures and ceiling air vents that arc protrusion-free. No cell housing a suicidal

inmate should have open-faced bars. Rather, each cell door should contain a heavy gauge Lexan

(or equivalent grade) glass panel that is large enough to allow staff a full and unobstructed view

of the cell interior. Cclls housing suicidal inmates should not contain any electrical switches or

roo) So ;

outlets, bunks with holes and ladders, towel racks on desks and sinks, radiator vents, corde 1

telephones of any length, clothing hooks (of any kind), or any other object that provides an ¢: ,

anchoring device for hanging. As reitcrated in the NCCHC standards, “The room should be as

nearly cuicide-proof as possible (i.e., withant prntmisinns of any kind that would enable th .

inmate to hang him/hersclf).”

Although Lehigh County Prison’s suicide prevention policy requires “special housing!

for suicidal inmates, the policy did not contain any description as to the type of housing provide '

to such inmates. According to the deposition testimony in this case, suicidal inmates can t ;

placed in a varicty of housing units in the Lehigh County Prison. According to the records, nor 7 ;

uf these plaweancuts provided safe housing for suicidal inmates because, at a minimum, oul

contain open-faced bars, shelves with clothing hoo’s, metal bunks, and towel racks attached E

desks. In Mr. Veras’ casc, he was placed on suicide precautions in the reception, mental health

and segregation units, and hc was able to attempt suicide in cach of these units. For example, he

was found hanging from the cell bars in the reception unit on October 28, tried to hang himself

fram the towel har attached to the desk in his cell in the segreyation unit on December 4, aul

successfully committed suicide by hanging himself from the cell bars the following day om

December >. For inexplicabic reasons, Mr. Vcras was also able w attempt (and cunmnit) suicide |

with ligatures that were prohibited from being in his cell, including a blanket and sheet.

Given the fact the inmates have historically attempted and/or committed suicide in the

Lehigh County Prison utilizing 4 variety of dangerous anchoring devices (including a successfu

cuicide by hanging of an inmate utilizing a shelf with clothing hanks in Inly 1905 and a hanging

Ape &1

attempt of a inmate utilizing the open-faced bars in February 2000), it is particularly troubling

that Mr. Veras was placed in a cell on suicide precautions that contained protrusions that were

obvious and previously known to be dangerous by the Defendants. Also troubling was the fact

that Edward Sweeney, | CP Director af Corrections, stated in his deposition (at pages 79-80) that

Mr. Veras was placcd in a cell that was not safe for housing suicidal inmates and that there were

not any suicide-resistant cells in the tacility {at pages 82-845). In fact, the Defendants

promulgated a suicide prevention policy that required a suicidal inmate to be placed in a

dangerous cell (i.e., “Suicide Precaution: This involves the inmate in an open-barred cell”), and

Director Sweeney admitted during his deposition that Mr. Vcras’ cell door “obviously is not

suicidc-proof in that somcone could certainly tie something to the door” (at page 80).

When questioned during their respective depositions regarding why Lexan paneling was

not installed on the barred doors of cells housing suicidal inmates, Messrs. Meisel and Sweeney

offered similarly inadequate responses, ranging from not having heard of Lexan paneling to the

belief that inmates would smear feces on the paneling thus obstructing visibility. Yct heavy

gauge Lexan (or equivalent grade) glass paneling is commonly known and utilized in jail and

prison facilities throughout the country to cover bars of cells housing suicida] inmates. The

Defeudunts had several uptivus tu lvusc suicidal inmates in safe cclls, including the placoment

of heavy gauge Lexan {or equivalent grade) glass paneling on selective cells utilized to house

suicidal inmates, housing suicidal inmates in cells that did not have open-barred doors, and

ensuring that suicidal inmates were provided with constant observation of a correctional officer

who was stationed directly outside the cell. The Defendants chosc none of these or other options

App b2

and simply continued to allow these obviously dangerous cells to be utilized for housing suicidal

inmates.

Finally, this writer has reviewed Lehieh County Prison’s 4-hour “In-Custody Suicide |

Prevention” training lesson plan developed in 1999. Overail, the lesson plan is very good an 7

based in large part on this writer's Suicide prevenuion walning curricula, Huwevei, o icvicw :

the Class Roster revealed that the workshop for in-service suicide prevention training was

offered at 1-hour, not 4-hour, durations. In addition, as shown below, contrary to both ACA and

NCCHC standards, the Class Roster indicated that the 14 Lehigh County Prison personnel who

were deposed in this case either never received suicide prevention training or received it

infrequently from 1995 through 2002: |

Dale Albright — no training

John Donate ~ no training

David Dreisbach — received training March 1995 and November 1998

David Ejitemiller — received training May 2001

Ronald Kiefer — received training September 1998 and April 1999

Clitiord Knappenberger — no training

Robert McFadden — received training November 1998

Dale Meisel — no training

Nelsun Santiago reecived training May 1997, Ootuber 1900 and April 2002

Garry Stercz — received training October 1996 and October 1999

Edward Sweency — no training

Gregary Thomas — no training

John Urban - received training October 1999

Tyrone Wright — received training July 1996 and April 1999

*eeoeeee?¢¢#¢e¢e@e@%8?ee# se

poo 8s

Summary and Conclusions

In summary, it would be this writer’s opinion that: 1) there was overwhelming evidence

to show that Enrique Veras was at a continuing high risk for suicide in the Lehigh County Prison,

and thai cantinning high risk was known to the Defendants and various personnel: 2) despite

knowledge that Mr. Veras was a continuing high risk for suicide, the Defendants and various

personnel never placcd Mr. Veras on constant Observation nor considered psychilauic

hospitalization; 3) the Defendants had grossly inadequate policies and practices in the area of

suicide prevention (particularly levels of observation and safe housing) that were the proximate

causes of Mr. Veras’ suicide because it was reasonable to assume that the provision of grossly

inadequate supervision for continuing high risk suicidal behavior, as well as placement in a

dangorous cell, would ultimately result in his suicide; and 4) the Nefendante’ actinns and inactions

in not taking adcquate precautions to manage Mr. Veras’ continuing high risk for suicide

reflected both negligence and deliberate indifference to his health and safety.

In conclusion, the suicide of Enrique Veras in the Lehign County Prison on December 5,

2002 was among a handful of the worst cases that this writer has reviewed during the past 25

years. His death was clearly preventable and the actions/inactions displayed by the Defendants

and various personncl can only be described ao unconscionable.

Respectfully Submitted By:

fan

Lindsay M. Hayes

Octobcr 31. 2005

FE Te Dn Ne RO

EXHIBIT 1

App. 95

VITAE

LINDSAY M. HAYES

PERSONAL INFORMATION

Office Address: National Center on Institutions and Alternatives

40 Lamem Lane

Mansfield, Massachusetts 02048

Contact [nformation: (S08) 337-8806

(U8) 337/-3U8S - tacsimile

E-Mail: Liayesta@msn.com

Date of Birth: June 5, 1985

Marital Status: Married, four children

ACADEMIC BACKGROUND

Master of Science — Administration of Justice (1978); The American University,

Washington. D.C.

Bachelor of Arts ~ Sociology (1977), Ithaca College, New York

SUMMARY

Lindsay M. Hayes is a Project Director of the National Center on Institutions and Altermatives, with an office in

Mansficld. Macsachnsets He is natianally reengnized as an expert in the field af cuicide prevention within jeile,

prisons and juvenile facilities. Mr. Hayes serves as a technical assistance consultanv/expert by conducting training

seminars and assessing inmate and juvenile suicide prevention practices in various state and lucai jurisdictions

throughout the country.

Mr, Hayes has conducted the only four national studies of jail, prison, «nd juvenile suicide (And Durkness Closes

ja...National Study of Jail Suicides in 1981, National Study of Juil Suicides: Seven Years Later in 1988, Prison

Suicide: An Overview and Guide to Prevention in 1995, and Juvenile Suicide in Confinement: A National Survey in

2004). The jail and prison suicide studies were conducted through contracts with the Nationa) Instiwte of

Corrections (NIC), U.S. Justice Department, whereas the first national study of juvenile suicide in confinement was

conducted through a contract with the Office of Juvenile Justice and Delinquency Prevention, U.S. Justice

Department.

Mr. Hayes has acted as an expert witness/consultant in over 240 suicide litigation cases, as well as appointed to assist

special masters in the development and implementation of suicide prevention policies in several adult and juvenile

correctional systems under court jurisdiction. He is also a suicide prevention consultant to the U.S Justice

Department’s Civil Right Division (Special Litigation Section) in its investigations of conditions of confinement in

both adult and juvenile correctional facilities throughout the country.

Mr. Hayes serves as editor/project director of the Jail Suicide/Mentul Health Update, a quarter\y newsletter devoted

lv research, taining, prevention, and litigation Uiai is funded by NIC; and is a consulting editor and editorial board

member ot Suicide and Life-Threatening Behaviar, Une olficial scientific jounal of the American Association of

Suicidolozy, as well as editorial board member of Crisis: The Journal of Crisis intervention and Suicide Prevention,

App. %6

the olficial screntific yournal of the International Association of Suicide Prevention. Mr. Hayes has authored over 50

publications in the area of suicide prevention within jail, prison and juvenile facilities, including model training

curricula on both adult inmate and juvenile suicide prevention.

AS a result of research, technical assistance, and expert witness consultant work im the area of suicide prevention in

currectional facilities, Mr. Hayes has reviewed and/or examined over 1,500 cases of suicide in jail, prison, and

juvenile facilities throughout the country during the past 24 years. In 2001, Mr. Hayes was presented with the

National Commission on Correctional Health Care’s Award of Excellence for outstanding contribution in the field of

suicide prevention tie correcitondl factifaies. Hts work bas been Cited In the suicide prevention sections 0! various

state and national correctional health care standards.

App. 97

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY,

3 PENNSYLVANIA

4 CIVIL DIVISION — LAW

RUTH AROCHO, As Administratrix : No.: 2003-C-3235

of the ESTATE OF ENRIQUE RENE :

VERAS and WADAYS VERAS and RUTH :

AROCHO as Parent and Guardian of :

CRYSTAL VERAS and YASHERA VERAS H

JURY TRIAL DEMANDED

COUNTY OF LEHIGH and DALE MEISEL

NOTICE

§ YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS

— SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20)

DAYS AFTER THIS PLEADING !S SERVED BY ENTERING A WRITTEN APPEARANCE

PERSONALLY OR BY ATTORNEY, AND FILING IN WRITING WITH THE COURT YOUR

DEFENSES AND OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE

WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A

JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE

FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR OTHER CLAIMS OR RELIEF

REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS

IMPORTANT TO YOU.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ON~E. IF YOU DO NOT

HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET

FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. tHIS OFFICE CAN

PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO

PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES

TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

LEHIGH REFERRAL SERVICE £3

LEHIGH COUNTY BAR ASSOCIATION oe ae

Old Courthouse, Room 304 = te :

Fifth and Hamilton Streets go

Allentown, Pennsylvania 18105 aa 2

Telephone: (610) 433-7094 =o 2:

SS oe

HAHALIS & KO IS, P.C.

— Se

Da\4fL. DératZian, Esquire

Attorney I.D. # 49841

20 East Broad Street

Bethlehem, PA 18018

(610) 865-2608

App. 99

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY,

PENNSYLVANIA

RUTH AROCHO, As Administratrix : No.; 2003-C-3235

of the ESTATE OF ENRIQUE RENE :

VERAS and WADAYS VERAS and RUTH

AROCHO as Parent and Guardian of

CRYSTAL VERAS and YASHERA VERAS

JURY TRIAL DEMANDED

Vv.

COUNTY OF LEHIGH and DALE MEISEL

COMPLAINT IN CIVIL ACTION

I, PARTIES

Plaintiff Ruth Arocho is an adult female citizen and resident of the

Commonwealth of Pennsylvania, and is the duly appointed administrator of

the Estate of Enrique Rene Veras, Deceased, and Parent and Natural

Guardian of Minor Plaintiffs Crystal Veras and Yashera Veras.

Plaintiff Wadays Veras is an adult male citizen and resident of the

Commonwealth of Pennsylvania.

At all times material hereto, Plaintiffs Wadays Veras, Crystal Veras and

Yashera Veras were the children of Ruth Arocho and Enrique Rene Veras,

Deceased, and heirs at law of Enrique Rene Veras, Deceased.

Defendant, County of Lehigh, maintains its principal office at Lehigh County

Government Center, Allentown, Pennsylvania, and maintains operates and

administers the Lehigh County Prison, in Allentown, Pennsylvania, and at all

times has been a “public entity” under 42 U..S.C. § 12131.

egies

App. 100

5. Defendant, Dale Meisel (hereinafter “Meisel”), is an adult male citizen and

resident of the Commonwealth of Pennsylvania. Meisel is currently serving

' in his capacity as Warden of the Lehigh County Prison and is responsible for

the formulation and/or implementation of practices, policies, and J

procedures, as well as the day to day operation and overseeing and command

and control of certain segments of the Lehigh County Prison, and who at all

times relevant hereto was acting within the scope of his duties and authority,

under color or title of state or municipal public law or ordinance and

supervised or controlled one or more of the other Defendants herein in their

conduct or actions, or acted in concert with them in the performance of their

conduct or actions.

6. At all times relevant hereto, Defendant County acted by and/or failed to act

by and through the conduct of its officers, managers, agents and employees,

including but not limited to Meisel, all acting within the scope and course of

their employment.

7. At all relevant times herein, Defendants County and Meisel knew, or had

reason to know, of the actions and inaction alleged herein and/or has

personally participated in some of said actions complained of herein, and are

ultimately responsible for same.

II. FACTS

8. Onor about December 5, 2002, Plaintiffs Deceased was incarcerated at the

Lehigh County Prison.

10.

11.

12.

13.

14.

App. 101

Because of a significant history of mental illness, Plaintiff's Decedent was

placed on “suicide watch.”

Upon information and belief, the policies and practices of Lehigh County as

pertain to the Lehigh County Prison provide that prisoners on suicide watch

are maintained under constant video surveillance.

While Plaintiffs Decedent was on video surveillance by employees, agents

and representatives of Defendant County of Lehigh, he fashioned a noose

from his bedding, and hanged himself in his cell.

Upon information and belief, the policies and practices of the County of

Lehigh were the direct and proximate cause of the constitutional harm

caused to Plaintiff.

As the direct and foreseeable result of the policies and practices of Defendant

County, Plaintiffs have been deprived of the support, society and

companionship of Plaintiff's Decedent.

As the direct and foreseeable result of the policies and practices of Defendant

County, Enrique Veras has been deprived of life, liberty and property, all in

violation of his rights under the United States Constitution, particularly as

guaranteed by the First, Fourth, Fifth and Eighth Amendments thereto.

App. 102

III. CAUSES OF ACTION

15.

COUNT I

PLAINTIFFS

Vv.

COUNTY OF LEHIGH AND DALE MEISEL

VIOLATIONS OF 42 U.S.C, § 1983

Paragraphs 1 through 14 inclusive, are incorporated by reference as if fully

set forth at length herein.

16. The Defendants acted in concert with each other, and all Defendants acted

under color of law, and violated the rights of the Plaintiffs Decedent by

depriving him of his constitutionally protected right to free speech and to be

free from malicious prosecution, false arrest, retaliatory prosecution, and

other rights as guaranteed by the First, Fourth, Fifth and Fourteenth

Amendments to the United States Constitution, in that Plaintiffs Decedent

was subjected to terms and conditions of incarceration in violation of his

rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments.

. The actions of all the Defendants, collectively and individually in planning,

conducting, and carrying out the incarceration of the Plaintiff's Decedent's

person and the subsequent actions deprived the Plaintiff of his constitutional

rights as guaranteed by the First, Fourth, Fifth, Eighth and Fourteenth

Amendments to the Constitution, Section 8 of the Pennsylvania Constitution,

and 42 U.S.C. Section 1983 in, inter alia, the following manners:

a. In the unreasonable use of police power and

authority, detention and prosecution;

App. 103

b. In the intentional cr negligent infliction of emotional

distress upon the Plaintiffs Decedent, designed or

calculated to punish the Plaintiff's Decedent;

c. In the development, implementation, and carrying out

of a policy, practice or procedure which fails to

adequately supervise and secure the person of

Plaintiff's Decedent and deprivation of constitutional

rights of citizens, such as the Plaintiff's Decedent;

d. In failing to develop, implement and carry out policies

prescribing proper conduct of Corrections Officers

when surveilling inmates to provide protection to the

protected inmates of the Defendant County to be safe

and secure in their persons and property;

e. In developing, implementing, and carrying out a

policy, practice, or procedure or custom which made

no reasonable or proper provision for application of

law to provide protection to the inmates of the

Defendant County to be safe and secure in their

persons and property;

f. In failing to properly train, supervise, monitor and

control the actions of all the Defendants so that

proper procedures could be accomplished safely;

g. In failing to properly develop, implement and carry

out a policy, practice, or procedure or custom which

conformed with the Constitutional requirements in

arrest, imprisonment, and prosecution of persons

such as the Plaintiff's Decedent; and

18. Asa direct and proximate result of the a foresaid actions and omissions of

all Defendants, tie Plaintiff has suffered the following injuries and losses and

is entitled to the following damages:

a. loss of the use, benefit and enjoyment of lite

and personal freedom of movement and

association;

App. 104

b. physical and mental pain and suffering and

anguish;

c. loss of valuable and inalienable rights to be

free from illegal imprisonment, free from

loss of freedom of association;

d. loss of income and future earning capacity;

e. loss of reputation;

f. punitive damages which are justified by the

outlandish and outrageous conduct, actions,

and omissions of one or more of the.

Defendants as aforesaid;

g. attorney's fees and costs to defend against

the criminal action; and

COUNTY OF LEHIGH AND DALE MEISEL

WRONGFUL DEATH — 42 P.C.S.A. § 8301

19. Pa:agraphs 1 through 18 inclusive, are incorporated by reference as if fully

set forth «:t length herein.

20.As a direct and proximate result of the negligent and/or intentional actions

of Defendants, Plaintiff has suffered the following damages and losses:

guidance, tutelage, and mora] upbringing;

funeral and medical expenses;

the total earnings that would have been earned by the

Plaintiffs Decedent during his life;

the economic value of the Plaintiff's Decedent’s life;

special expenses provided for in 42 Pa. Cons. Stat. Ann. §

App. 105

8301(c);

f. Such other damages as are cognizable in law.

COUNT III

ESTATE OF ENRIQUE VERAS

COUNTY OF LEHIGH AND DALE MEISEL

SURVIVAL ~ 42 Pa.C.S.A. § 8302

21. Paragraphs 1 through 20 inclusive, are incorporated by reference as if fully

set forth at length herein

22.As a direct and proximate result of the negligent and/or intentional actions

of Defendants, Plaintiffs Decedent suffered pain, suffering, loss of income,

companionship, loss of life’s pleasures, and such other damages as are

cognizable at law.

V. PRAYER FOR RELIEF

23.Plaintiffs incorporates by reference paragraphs 1 through 22 of their

Complaint as though fully set forth at length herein.

WHEREFORE, Plaintiff respectfully requests the Court to:

a. Exercise jurisdiction over their claims;

b. Issue declaratory and injunctive relief declaring the above-described

practices to be unlawful, and enjoining their past and continued

effects;

c. Award them compensatory damages, including but not limited to

reimbursement of all medical and psychological expenses; back pay

and future earnings and loss of earning capacity in the amount of

wages and benefits, damages for their mental, psychological and

emotional injuries, anguish, humiliation, anxiety, physical and mental

pain and suffering and loss of life's pleasures, all of which may be

permanent, together with interest, resulting from Defendants’ unlawful

and tortious conduct;

d. Award them attorneys’ fees and costs; and

e. Grant such other relief as the Court deems just and equitable.

Plaintiff demands trial by jury.

Dated: December 8, 2004

HAHALIS & KOVNGUPIS, P.C.

DAVID LSDERATZIAN

Attorney I.D. # 49841

20 East Broad Street

Bethlehem, PA 18018

(610) 865-2608

Attorneys (or Plaintiffs

App. 107

IN THE SUPREME COURT FOR THE COMMONWEALTH OF

PENNSYLVANIA

No.

RUTH AROCHO, As Administratrix of the ESTATE OF

ENRIQUE RENE VERAS, WADAYS VERAS, and RUTH

AROCHO As Parent and Natural Guardian of Crystal Veras

and Yashera Veras

Petitioners

-VS-

COUNTY OF LEHIGH and DALE MEISEL,

Respondents

PETITION FOR ALLOWANCE OF APPEAL

Petition for Allowance of Appeal from the Order of the

Commonwealth Court No. 1008 CD 2006 dated May 3, 2007

Affirming the Order of the Court of Common Pleas of Lehigh County —

No. 2003-C-3235 dated April 26, 2006 Granting Defendants’ Motion ©

for Summary Judgment :

DAVID L. DERATZIAN, ESQUIRE

GEORGE S. KOUNOUPIS, ESQUIRE

HAHALIS & KOUNOUPIS, P.C.

20 East Broad Street

Bethlehem, PA 18018

(610) 865-2608

Attorneys for Petitioners

TABLE OF CONTENTS

PRE A CU DINED BOOBs ccc nsewdsudocsnnvcesnons cece veccsncccesocessexe ill

STATEMENT OF BASIS OF JURISDICTION ...................... oe

REFERENCE TO REPORT OF OPINIONS SPEEA os vcstntsasndonnss 2

lc ishsuvancncévavecseercatheaseeseas si sccveseencodeisen 3

RPA Feaes CAO INGS PRC reS SUI 1 PLD. 00 -ccnrnccccccccceeccescces iipaitcoheneiiihennbudile 4

re ee CPOE GPR vai sasisecswntavenssscesdveveneresseevecssnusiees 5

PETITION FOR ALLOWANCE OF APPEAL ............2..0seceeeeees 14

REASONS SUPPORTING ALLOWANCE OF THE APPEAL....... 17

CONCLUSION

APPENDICIES

A. Adjudication Orders of the Court of Common Pleas

{April 26, 2006)

B. Order & Opinion of the Commonwealth Court

of Pennsylvania {May 3, 2007}

C. Pertinent Laws Pursuant to Pa.R.A.P. 1115 (7)

CERTIFICATE OF SERVICE

App. 109

TABLE OF AUTHORITIES

FEDERAL CASES

Bell v. Wolfish, 441 U.S. 520 (1979) 31

Brown v. Pa. Dep't of Health Emergency Med. Servs. Training

Inst., 318 F.3rd 473, 482-483 (3rd Cir. 2003) 24

Canton v. Harris, 489 U.S. 378, 385 (1989) 25

Collins v. City of Harker Heights, 503 U.S. 115, 122, 117 L.

Ed. 2d 261, 112 S. Ct. 1061 (1992) 25

Estelle v. Gamble, 429 U.S. 97, 103, {1976) 28

Farmer v. Brennan, 511 U.S. 825, 847 (1994) passim

Gates v. Cook, 376 F.3rd 323 (Sth Cir. 2004) 31

Monell v. Department of Social Services of the City of New

York, 436 U.S. 658, 691 (1978) 25, 26

Montgomery v. Pinchak, 294 F.3rd 492, 499 (3rd Cir. 2002)21

Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 {1986) 31

Trigalet v. City of Tulsa, Oklahoma, 239 F.3d 1150 (10th Cir.

2001) 24

Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th Cir. 1994) 24

Youngberg v. Romeo, 457 U.S. 307 (1982) 28

App. 110

STATE CASES

Boyle v. Pennsylvania R. Co., 403 Pa. 614, 616 (Pa. 1961) 30

Commonwealth, Dep't of Public Welfare, Farview State Hosp.

v. Kallinger, 134 Pa. Cmwith. 415, 423 (Pa. Cmwlth. 1990)28

Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 345

A.2d 758 {1975) 33

Hadar v. Avco Corp., 2005 PA Super 326, *12 (Pa. Super.

2005) 30

Hamil v. Bashline, 481 Pa. 256, 266-267, 392 A.2d 1280 {Pa.

1978) 33, 34

Hightower-Warren v. Silk, 548 Pa. 459 34

Mackowick v. Westinghouse Electric Corporation, 373 Pa.

Super. 434, 541 A.2d 749, 750-51 (Pa. Super. 1988) 30

Morningstar v. Hallett, 2004 PA Super 337 35

Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670

(1967) 32, 33

Robbins v. Cumberland County Children and Youth Services,

802 A.2d 1239, 1250-1251 (Pa. Cmwith. 2002) 23, 27

Thomas v. City of Philadelphia, 804 A.2d 97, 112 (Pa. Cmwith.

2002) 23

Weisman v. Sauder Chevrolet Co., 402 Pa. 272, 167 A.2d 308

(1961) 33

Young v. DOT, 560 Pa. 373, 376-77, 744 A.2d 1276, 1278

(2000) 33

ili

App. 111

UNITED STATES CONSTITUTION

Eighth Amendment

Fourteenth Amendment

FEDERAL STATUTES

42 U.S.C. § 1983

STATE STATUTES

42 Pa.C.S. § 724

42 Pa.C.S.A. § 762

STATE RULES

Pa.R.A.P. 1115

17, 20, 21, 22, 26,

31, App. A-37

App. A-38

STATEMENT OF THE BASIS FOR THE JURISDICTION

The Pennsylvania Supreme Court has jurisdiction over this

Petition for Allowance of Appeal from a final order of the

Commonwealth Court pursuant to 42 Pa.C.S. § 724. The

Commonwealth Court had jurisdiction over an appeal from the

final order of the Court of Common Pleas of Lehigh County,

Pennsylvania granting Summary Judgment in favor of Lehigh

County and Warden Dale Meisel pursuant to 42 Pa.C.S.A. §

762.

REFERENCE TO REPORT OF OPINIONS BELOW

On April 26, 2006, the Court of Common Pleas, Lehigh

County granted Defendants’ Motion for Summary Judgment. A

copy of the Opinion and Order is attached as Exhibit A. On

May 3, 2007, the Commonwealth Court of Pennsylvania

affirmed the Court of Common Pleas. A copy of the May 3,

2007 Order and the Opinion of the Commonwealth Court is

attached hereto as Exhibit B.

App. 114

ORDER IN QUESTION

AND NOW, this 3% day of May, 2007, the Order of the Court of

Common Pleas of Lehigh County in the above-captioned

matter, entered April 26, 2006, is hereby AFFIRMED.

/s/Mary Hannah Leavitt, Judge

See Appendix B for the Commonwealth Court’s Order and

Opinion.

QUESTIONS PRESENTED

Whether the Commonwealth Court erred in

applying the decisions of the United States

Supreme Court in Farmer v. Brennan and Collins

v. City of Harker Heights in holding that

Lehigh County Could Not be Held Liable for a

Constitutionally Infirm Prison Suicide Prevention

Policy?

Whether the Commonwealth Court erred in

holding that Petitioners could not establish an

unconstitutional condition of confinement for an

inmate at risk of suicide where Plaintiff has

proffered an unrebutted expert report that the

conditions are constitutionally deficient?

App. 116

STATEMENT OF THE CASE

The facts surrounding the death of Enrique Veras were

stated by the Court of Common Pleas of Lehigh County as

follows: *

A. MR. VERAS’ HISTORY OF #£SUICIDE

ATTEMPTS AT LEHIGH COUNTY PRISON

In February of 2002 Enrique Veras was incarcerated and

immediately placed on “suicide precaution” status. On

February 11, 2002, Mr. Veras tied a makeshift rope around

his neck and tied it to the bars in a suicide attempt. Mr.

Veras was returned to “suicide precaution” status on March

30, 2002 and remained on this status until he was released

from Lehigh County Prison on April 2, 2002.

Enrique Veras'- returned to Lehigh County Prison on

October 27, 2002, at which time he was placed on “suicide

precaution” status. At the time of his arrest on October 27,

Enrique Veras threatened to kill himself by placing a knife at

his neck. He was seen at Sacred Heart Hospital, resulting in

the following recommendation: “BE ABSOLUTELY WATCHFUL

‘ Except as noted with citation, the recitation of the facts are those found by the

Court of Cominon Pleas.

App. 177

OF HIS BEHAVIOR. CONSIDER THIS PATIENT HIGH RISK

FOR REPEATED SELF-INJURY. MUST HAVE SOMEONE

WATCHING HIM AT ALL TIMES.”2

During the intake process at Lehigh County Prison, he

expressed depression and threatened suicide. He gave a

history of mental illness, psychiatric hospitalization and

psychotropic medication. He was placed on _ suicide

precautions in the rece: ‘ion unit (1D2} with the requirement

of observation at fifteen minute intervals. While there and

under observation, Mr. Veras began throwing himself on the

floor and wall of his cell causing ..ead trauma. His was placed

in the restraint chair and remained on fifteen minute

observation for suicide precautions.‘

The next day, again while on suicide precautions, Mr.

Veras fashioned a noose from bedding, and was found hanging

from the cell bars.5 The murse that responded opined “he’s

gone,” but in fact Mr. Veras remained conscious and was

placed in the restraint chair. After two and a half hours, he

* RR. v.1at p. 75a.

> RR. v. 1 at p. 76a.

* Id.

>RR.v.1at p. 79a

App. 118

was released from *he restraint chair and remained on suicide

precautions of fifteer. mimute observation.®

On November 4, 2002, Enrique Veras was transferred to

the Mental Health Unit and remained on “suicide precaution”

status. Enrique Veras was removed from “suicide

precaution” status on November 14, 2002.7

Subsequently, on December 4, 2002, Enrique Veras

began to engage in self-injurious behavior. Consequently,

Enrique Veras’ was placed in a “suicide precaution cell”,

specifically Cell 3223 that is located in the Administrative

Segregation/Disciplinary Segregation Unit. A Corrections

officer in a booia in the pod is responsible for monitoring the

intimate on suicide precautions. If the correctional init in the

booth cannot observe the inmate from the control booth, one

of the other Corrections Officers on the pod is required to go to

the cell in order to check on the inmate.

The policies of the Lehigh County Prison require that a

cell to be used as a “suicide precaution cell” must be subject

” Although not found as a fact by the Court, this removal coincided with Mr. Veras being placed

in Disciplinary Segregation for destruction of property mm connection with his October 28 suicide

attempt. RR. v.! at p. 80a.

App. 119

to the best sight line available from the control booth, and be

an “open bar” cell. The cells used by Lehigh County Prison as

“suicide precaution cells” are supposed to have direct access

to the officers and in the visual field of the officers most of the

time to make sure that there is nothing that the prisoners can

hang themselves with or hang onto.

Immediately upon being placed in the cell in 3Cl1, Mr.

Veras began banging his head on the floor, bunk and wall;

throwing himself from the top bunk onto the floor, attempted

to flush his head down the toilet, and trying to hang himself

by tying his underwear around his neck and to the towel bar

in the cell. He was again placed in the restraint chair.®

As a result, Enrique Veras was given a blanket and was

stripped naked, and upon authorization from the medical

department, was placed in a restraint chair between 8:45 P.M.

and 9:00 P.M.. Between 10:30 P.M. and 10:45 P.M.,

correctional officers attempted to remove Enrique Veras from

the restraint chair, but Enrique Veras_ refused to leave the

restraint chair, stating that he would harm himself if he were

* Id.

App. 120

removed. The medical department placed Enrique Veras on

“suicide precaution” status at 11:18 P.M. Enrique Veras was

removed from the restraint chair at 12:30 A.M. on December

5, 2002.

On December 5, 2002 at approximately 4:10 P.M.

Enrique Veras was found in Cell 3223 standing with his back

to the cell door with a ligature around his neck and tied to the

cell door. The ligature was characterized as bed linen or a

sheet. The correctional officers immediately cut the ligature

and summoned medical attention. Enrique Veras was

transferred to the hospital where he was pronounced dead at

4:54 P.M.

B. Lehigh Coumuty Prison’s Suicide Prevention

Policy

1. Policy Relating to Monitoring Seriously

Suicidal Inmates

Lehigh County Prison has a suicide prevention policy (No.

5.5, effective April 5, 2001) which states that the facility will

“provide special housing, increased levels of observation, and

medical restraint to those inmates who display self-destructive

App. 121

behavior.”° The policy references bcing based upon standards

for suicide prevention policies separately promulgated by the

American Correctional Associate (ACA) and the National

Commission on Correctional Health Care {NCCHC). The

County has never contended that these standards are not

applicable to them.

The ACA standards require a provision that mandates

constant observation for suicidal inmates.!° The NCCHC

standards require that an inmate assessed as a high suicide

risk be observed on a “continuing, uninterrupted basis or be

transferred to an appropriate health facility.”!1 Corrections

Director Edward Sweeney has testified that the Lehigh County

Prison suicide prevention policy was based upon those

standards. !?

According to the references section of the LCP policy, a

National Corrections Institute Publication was also consulted.

That publication,’ is a report prepared by Lindsay Hayes,

*RR. v.1at p. 59a.

RR. v.1atp. 51a

"RR. v. Lat p. $7a - 58a; 73a.

"RR. v. iat p. 1042.

'S Excerpted at RR. at pp. 47a - 58a.

Plaintiffs expert in this case. Director Sweeney reviewed

Lindsay Hayes’ publications in the process of issuing the LCP

Suicide Prevention policy.14 The recommendations in that

report echo the NCCHC requirements for continuous

observation of actively suicidal inmates on a one-on-one basis,

either by a member of the corrections staff or a fellow inmate.

The LCP policy does not require constant observation of

inmates at high risk of suicide, nor does the policy on its face

even provide for the possibility of constant observation.

Director Sweeney, who issued the policy, had no explanation

for why there was no _ specific provision for constant

observation. He stated that there was no reason to omit this

classification. !>

The Corrections Officer in the booth, has a view of the

cell in which Mr. Veras was housed (3C1), which is partially

obstructed by a staircase.'6

“RR. v. at p. 102a.

RR. v.1at p. 105a.

'* A photograph of the view from the Desk in the Control Booth from which Mr.

Veras was supposed to be observed is contained in the record and is

reproduced in Appellant’s Brief to the Commonwealth Court at p. 10.

App. 123

2. Policy Relating to Housing Seriously

Suicidal Inmates

The NCCHC standard requires that a cell designated for

suicide prevention “be as nearly suicide-proof as possible {i.e.

without protrusions of any kind that would enable the inmate

to hang him/herself.”!? However, the cells used as “suicide

prevention” cells at LCP are not suicide resistant in that there

are multiple ligature anchor points accessible to the inmate.!®

The Lehigh County Prison policy provides for only two

levels of observation for suicidal inmates: suicide precautions

and close observation.'!° The policy does not delineate any real

difference betwcen the monitoring of inmates in the two levels,

and the deposition testimony of all of the witnesses reveals

that the only difference is whether the inmate is maintained

clothed or stripped naked.

The suicide prevention cells at LCP all have open face

bars, towel bars, and clothing hooks, all of which are potential

"RR. v.1atp. 18a - 21a; 73a.

"RR. v.1at p. 16a — 1174.

* R.R. v.1 at p. 60a. The policy also provides for medical restraint (ie. the “restraint

chair”) as a temporary measure. R.R. at p. $ia.

App. 124

and easily recognizable ligature anchor points.2° Director

Sweeney has understood that the cells with open faced bars,

including the one in which Mr. Veras committed suicide, are

not safe for suicidal inmates in that the open bar cells provide

multiple ligature points.2! Director Sweeney stated that an

open bar cell is not suicide resistant, since “obviously .

someone could certainly tie something to the door.”22 Director

Sweeney also understood that that there are no suicide

resistant cells at the Lehigh County Prison.23

» Tn fact, the Lehigh County Prison policy requires that open bar cells be used for suicide

prevention. R.R. v. 1 at p. 125a. The Warden designates what cells are used for suicide

prevention. R.R. v. 1 at p. 125a. However, Director Sweeney was the Warden at the time

that the suicide cells were designated, and current Warden, Dale Meisel, did not change

the designations when he became Warden.

1 R.R.v. 1 at p. 116a — 1172.

Id.

™ RR. v. 1 at p. 119a — 120a.

Pas

App. 125

PETITION FOR ALLOWANCE OF APPEAL

The United States Supreme Court has held that a prison

official may be liable under 42 U.S.C. § 1983 if he knew that

the inmate faced a substantial risk of serious harm and

disregarded that risk by failing to take reasonable measures to

abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994). In this

case, the record is clear that Enrique Veras faced a substantial

risk of serious harm from suicide. Lehigh County conceded not

only that Mr. Veras had a peculiar risk of suicide, but that the

prison officials knew that he did.

Under Farmer, the only remaining question was whether

Lehigh County Prison failed to take reasonable measures to

abate the risk to Mr. Veras. However, rather than follow the

clear directions of the United States Supreme Court, both the

Court of Common Pleas and the Commonwealth Court

embarked upon a parallel enquiry as to whether the general

record of suicides and suicide attempts at the Lehigh County

Prison put the prison officials on notice of the need for

different suicide precautions.

App. 126

This enquiry was improper because Farmer set up two

distinct methods of proof as to whether there was a

substantial risk of harm from suicide: one enquiry when the

prison officials did not have actual notice of a peculiar risk to

a particular inmate; and a separate enquiry where the prison

officials had recognized that a particular inmate was at risk of

suicide. The tests are mutually exclusive. In this case, Lehigh

County Prison officials had recognized that Enrique Veras was

at imminent risk of suicide, and had placed him on suicide

precautions. At the time of his death by suicide, he had been

on suicide precautions for approximately eighteen hours.

There was no need to further enquire into whether there was a

general risk at the prison.

The Commonwealth Court further erred in opining that

whether the second part of the Farmer test, whether the prison

officials took reasonable precautions to abate the known risk

of suicide to the inmate, was a question for the Court. The

Commonwealth Court cites to Farmer for this startling and

unprecedented rule, but fails to designate from whence it was

drawing this rule. In fact, no such statement is made in

App. 127

Farmer, and the delegation of the question of whether

reasonable steps were taken to the Court is contrary to

precedent of the Commonwealth of Pennsylvania and the

Federal Courts.

The record supported the conclusion that Lehigh County

Prison knew that the provisions that it made for housing

suicidal inmates was not proper, and therefore that the

precautions were not reasonable. The lower courts erred in

deciding the question of reasonableness as a matter of law,

and also erred in completely disregarding the uncontested

opinion of Plaintiffs expert, Lindsay Hayes, that the LCP

procedures were constitutionally infirm.

App. 128

REASONS SUPPORTING ALLOWANCE OF THE APPEAL

I. The Commonwealth Court Did Not Follow the

Controlling Decisions of the United States

Supreme Court in Farmer v. Brennan and Collins

v. City of Harker Heights

A. The Commonwealth Court Failed to Properly

Apply Farmer v. Brennan

The United States Supreme Court has imposed § 1983

liability in a prison suicide case where the prison officials are

“deliberately indifferent” to the inmates peculiar vulnerability

to suicide. “Deliberate indifference” is a term of art the

meaning of which has developed over time. The controlling

decision by the United States Supreme Court defines the

standard as “a prison official may be held liable under the

Eighth Amendment for denying humane _conditions of

confinement only if he knows that inmates face a substantial

risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Farmer v. Brennan, 511

U.S. 825, 847 (1994).

The Court in Farmer parsed the first requirement into

two subparts,

CREA.

ag _ 2 Swipe aes

Ee age pan ea OS

App. 129

{1) the detainee had a particular vulnerability

to suicide; and

{2) the custodial officer or officers knew of that

vulnerability

911 U.S. at 836 (“the official must both be aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference’).

The Farmer opinion equates the last factor with a breach of

duty. 511 U.S. at 845 (“Whether one puts it in terms of duty

or deliberate indifference, prison officials who act reasonably

cannot be found liable under the Cruel and Unusual

Punishments Clause.”)

The Supreme Court explained that the term “deliberate

indifference" lies “somewhere between the poles of negligence

at one end and purpose or knowledge at the other." Farmer,

511 U.S. at 836. It is by this standard - and only this

standard — that the Lower Courts were required to consider

this case. As demonstrated below, the Lower Courts erred by

confusing standards set forth in pre-Farmer cases and those

applicable in other kinds of § 1983 cases.

Knowledge of Vulnerability

In this case, LCP and Warden Meisel conceded for the

purposes of their Motion for Summary Judgment that these

factors are supported by the record. Even if they had not so

conceded, it is undisputed that Enrique Veras had been

diagnosed as an immediate suicide risk, and was on Suicide

Precautions at the time of his death. Therefore, the standard

is met that Enrique Veras had a particular vulnerability to

suicide (by virtue of the undisputed diagnosis) and the

custodial officers knew of that vulnerability (they maintained

him on suicide precautions).

The Lower Courts both placed great emphasis on the lack

of a significant history of prior suicides at the Lehigh County

Prison. Under Farmer, the record of prior suicides and

suicide attempts may be relevant to the subjective knowledge

enquiry, but only if there was no evidence of subjective

knowledge of a particular vulnerability to suicide of the inmate

in question.

App. 131

Whether a _ prison official had the

requisite knowledge of a substantial risk

is a question of fact

* * *

and a factfinder may conclude that a

prison official knew of a substantial risk

from the very fact that the risk was

obvious

* * *

(jf an Eighth Amendment plaintiff

presents evidence showing that a

substantial risk of inmate attacks was

"longstanding, pervasive, well-

documented, or expressly noted by prison

officials in the past, and _ the

circumstances suggest that the

defendant-official being sued had been

exposed to information concerning the

risk and thus ‘must have known' about it,

then such evidence could be sufficient

to permit a tner of fact to find that the

defendant-official had actual knowledge

of the risk

Farmer, 511 U.S. at 842-43. Since there is no question that

the prison and its top officials had actual knowledge of Mr.

Veras’ particular vuinerability, the prior record (for lack

thereof) of suicide attempts is not a proper consideration.

2. Reasonable Measures to Abate the Risk

There is both an objective and a subjective component to a

deliberate indifference claim - Did the prison official have

App. 132

subjective knowledge of a peculiar or general risk; and were

the measure taken to abate the risk objectively reasonable.

Farmer, 511 U.S. at 846 (“to survive summary judgment, he

must come forward with rene from which it can be

inferred that the a fendant-officials were at the time suit was

filed, and are at the time of summary judgment, knowingly

and unreasonably disregarding an objectively intolerable risk

of harm”); See also Montgomery v. Pinchak, 294 F.3rd 492, 499

(3¢ Cir. 2002). The only question at issue on Summary

Judgment in this case was the second question: whether the

Lehigh County Prison failed to take objectively reasonable

steps to abate the danger to Enrique Veras. Farmer, 511 U.S.

at 847 (“a prison official may be held liable under the Eighth

Amendment for denying humane conditions of confinement

only if he knows that inmates face a substantial risk of serious

harm and disregards that risk by failing to take reasonable

measures to abate it.”)

The Commonwealth Court also erred in requiring proof of

sctenter. Appendix B, p. 8; 2007 Pa. Commw. LEXIS 197, *27.

In so holding, the Commonwealth Court mistakenly relied

App. 133

upon the opinion of the Third Circuit in Simmons v. City of ]

Philadelphia, 947 F.2d at 1060-1061. n13. However, the 7

Supreme Court repudiated such a requirement in Farmer.

The standard of purposeful or knowing conduct is not

necessary to satisfy the requirement of deliberate indifference.

Id. at 836. The Supreme Court further clarified that it did not

intend to require a plaintiff to show an intent to harm on the

part of the pmson, nor did it require direct evidence of the

prison’s knowledge of the vulnerability. 511 U.S. at 842. Nor

must an Eighth Amendment claimant show that a prison

official acted or failed to act believing that harm actually would

befall an inmate; it is enough that the official acted or failed to

act despite his knowledge of a substantial risk of serious

harm. Id. at 842.

The Commonwealth Court has Consistently

Misapplied Collins v. City of Harker Heights

As to the Liability of a Municipality for

Constitutional Torts Committed by Municipal

Actors Who Themselves Have No § 1983

Liability

The Commonwealth Court has linked municipal liability

under Section 1983 to proof that a municipal actor is liable for

a constitutional tort. In this case, the Commonwealth Court

engaged in an extensive analysis of the liability of Warden

Meisel, 2007 Pa. Commw. LEXIS 197, *20-32, ultimately

holding that Warden Meisel was not liable under § 1983. The

Court then disposed of the Monell claim against Lehigh

County, holding that

This Court has expressly adopted the

Trigalet analysis. Thomas v. City of

Philadelphia, 804 A.2d 97, 112 (Pa.

Cmwith. 2002) {"We hold, therefore, that

in the absence of an _ underlying

unconstitutional action by employees of

the City .. ., we will not consider the

question of whether the City [has liability]

. . .".); Robbins v. Cumberland County

Children and Youth Services, 802 A.2d

1239, 1250-1251 (Pa. Cmwilth. 2002)

{accepting the “reasoning of the vast

majority of federal circuits, which adopt

the gencral rule that a municipality

App. 135

cannot be liable unless there is a

constitutional violation by the municipal

actor causing the plaintiffs harm").

2007 Pa. Commw. LEXIS 197, *34.

The Court recited the “Jrigalet” analysis as

-€@ municipality cannot be held liable in a

Section 1983 action in the absence of a

predicate unconstitutional act by the

municipality's employee. Even if the

municipality's actions are arbitrary or even

“conscience shocking, in a _ constitutional

sense" the municipality cannot be held liable

under Section 1983. Id. [Trigaiet v. City of

Tulsa, Oklahoma, 239 F.3d 1150 (10th Cir.

2001)] at 1151. This is because a claim of

“inadequate training [or] supervision . . . under

§ 1983 cannot be made out against a

supervisory authority absent a finding of a

constitutional violation by the _ person

supervised." Id. at 1154 {quoting Webber uv.

Mefford, 43 F.3d 1340, 1344-45 (10th Cir.

1994)).

2007 Pa. Commw. LEXIS 197, *33-34. This is an

accurate statement of the law, as the Third Circuit recognized

in Brown v. Pa. Dep't of Health Emergency Med. Servs. Training

inst., 318 F.3rd 473, 482-483 (3 Cir. 2003). However, a

municipality may be held independently liable for a

substantive due process violation even in situations where

App. 136

none of its employees are liable, but have nonetheless violated

plaintiffs constitutional rights, Collins v. City of Harker

Heights, 503 U.S. 115, 122, 117 L. Ed. 2d 261, 112 S. Ct.

1061 (1992) (emphasizing “the separate character of the

inquiry into the question of municipal responsibility and the

question whether a_ constitutional violation occurred.").

However, “It is not enough that a municipality adopted with

deliberate indifference a policy of inadequately training its

officers. There must be a “direct causal link” between the

policy and a constitutional violation,” Canton v. Harris, 489

U.S. 378, 385 (1989).

This distinction between municipal liability where no

municipal actor has liability under § 1983, and where no

municipal actor has violated constitutional nghts, is a crucial

one, and one which the Commonwealth Court clearly does not

understand. A governmental entity is liable under Section

1983 where action pursuant to a municipal policy or custom

causes a constitutional tort. Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 691 (1978). “[I]t

is when execution of a government's policy or custom...

App. 137

inflicts the injury that the government as an entity is

responsible under § 1983." Id. at 694.

Fourth Amendment claims such as excessive force or

arrest without probable cause by police, as in Canton and

Monell, by necessity require action by a municipal employee —

a police officer - to bring about the constitutional harm. An

Eighth Amendment claim, on the other hand, arises out of

taking no action in reliance upon a policy which dictates that

no action be taken. The municipal actor (ie. the corrections

officers) who are directly involved with the inmate would have

no liability for their inaction, because they are acting in

accordance with a facially {from the their perspective) valid

policy.

The Commonwealth Court mistakenly found that

Pctitioncrs based their appcal on Fagan v. City of Vineland,

1993 U.S. App. LEXIS 20327 {3 Cir. 1993), affd 22 F.3rd

1296 (3° Cir. 1994}(en band. Recognizing that the Fagan

decision was roundly criticized, not for its actual holding, but

for the implication of that holding, the Commorwealth Court

refused to follow Fagan in Robbins, wich held that “a

App. 138

municipality cannot be liable unless there is a constitutional

violation by the municipal actor causing plaintiffs harm.” 802

A.2d at 1251. The implication that the Commonwealth Court

was rejecting was that there could be municipal liability even if

the actions of the municipal actors did not violate the

Constitution. Even the Third Circuit has repudiated this in

Brown.

In Robbins, the Commonwealth Court held that a child

protective services agency had no duty under § 1983 to protect

a child that was not in its custody from private violence, and

as there was no breach of any constitutional duty, it was

irrelevant whether any municipal policy was improper. The

Court never considered whether the County policies were

infirm, because the Plaintiff simply failed in its proof that there

was any duty owed by the municipal actor.

In Brown, the Plaintiff alleged thatthe City of

Philadelphia had a number of policies involving EMTs which

were enacted with deliberate indifference and which caused

harm to them and their son. Like the Commonwealth Court in

Robbins, The Third Circuit held that they failed to cstablish

App. 139

that the City's policies caused constitutional harm because the

City was under no constitutional obligation to provide 4

competent rescue services to Plaintiff from privately-caused

harm.

However, there is a clear and established obligation to

protect an inmate from a known risk of suicide. Youngberg v.

Romeo, 457 U.S. 307 (1982); Estelle v. Gamble, 429 U.S. 97,

103, (1976); Commonwealth, Dep't of Public Welfare, Farview

State Hosp. v. Kallinger, 134 Pa. Cmwlith. 415, 423 (Pa.

Cmwith. 1990). The Courts’ disagreement with Fagan is

therefore not pertinent to this case, and proper enquiry can be

made into the constitutional adequacy of the Lehigh County

Prison Suicide Policy.

As set forth above, the duty in this case has been

established, since Mr. Veras had a particular vulnerability to

suicide which was recognized by the prison by putting him on

suicide precautions. Defendants did not contest, and in fact

admitted, and the Court accordingly found that the suicide

prevention policy was an official policy enacted by Warden

Meisel and ratified by Director Sweeney. The question

« . “i i “ ‘ , eee ath AR ahs ie tie tig ewer ays)

ee ERG BE ey Cee ED RI GED OPI Ae eee NP MEMS be ee ee MTS ew vie Cee ae PE OM Cet fee mR Se)

App. 140

remains as to whether those precautions were a reasonable

effort to abate the vulnerability to suicide. If not, then the

Corrections Officers’ actions in compliance with and in

furtherance of those policies would be in violation of the

Constitution, even if none of them would be liable under the

“shocks the conscience” standard. That is the question that

remains to be decided by a jury.

Il. The Commonwealth Court Erred in Permitting the

Question of “Reasonableness” of the Prison

Suicide Prevention Policies to be Decided by the

Court Rather than By a Factfinder

a. Whether Conduct is Reasonable is a Jury

Question

The Commonwealth Court held that the question of

whether the Prison’s response to the known threat of suicide

was a question for the Court, referring without citation to

Farmer. Appendix B, p. 9; 2007 Pa. Commw. LEXIS 197, *31.

(“It is for the courts to determine, under Farmer, whether

particular conduct is so unreasonable as to constitute the

infliction of cruel and unusual punishment.”) The

Commonwealth Court docs not state wherc in Farmer it has

found this pronouncement, and in fact, the Supreme Court q

has not so delegated this question.

The reasonableness of a particular course of action is

the quintessential jury question. See Boyle v. Pennsylvania R.

Co., 403 Pa. 614, 616 (Pa. 1961); Mackowick v. Westinghouse

Electric Corporation, 373 Pa. Super. 434, 541 A.2d 749, 750-51

(Pa. Super. 1988); Hadar v. Avco Corp., 2005S PA Super 326,

*12 (Pa. Super. 2005). Appellants identified two major issues

relating to whether the County took “reasonable measures to

abate the risk.” First, the LCP policy does not require, or on

its face even provide for, constant uninterrupted observation of

inmate on suicide precautions, as set forth in the NCCHC

standards, and what obscrvation required is conducted from a

place that has inadequate sightlines to permit a proper level of

observation from the Control Booth. Second, the suicide cell

on 3Cl is dangerous for suicidal inmates in that it provides

multiple ligature anchor points on which an inmate may hang

himself.

The Lower Courts misinterpreted the decision of the

United States Supreme Court in Bell v. Wolfish, 441 U.S. 520

oz, ats Silks Sead Fu 6 ta IA a Nh POPE Se ge RNP Ne. ee Pears Ae MT Pe SP NEE OE Be te EE TRIO ROM, Se gel ee Cee LS

hie Sah EN ay iy x Sy bs) - 3 Eo ; ve Dp { Po cis ee

App. 142

(1979) in which the Court held that published standards for

prison conditions, while not determinative of constitutional

requirements, may be instructive as the accepted standards

for prison conditions. 441 U.S. at 543 n. 27. While NCCHC

and ACA standards are not binding standards, they are

certainly evidence of what are reasonable steps to abate the

risk of suicide. Gates v. Cook, 376 F.3rd 323 (5 Cir. 2004)(

ACA accreditation and compliance with standards are relevant

considerations but not dispositive of compliance with the

Eighth Amendment (citing Bel).

In fact, the LCP suicide prevention policy is based upon

both sets of standards, but follows neither. The prison was

not able to explain its decision not to follow the standards.

This salle a clear question of whether the decision — thc

product of deliberation - was reasonable. An unreasonable

decision which is the product of deliberation is “deliberate

indifference.” Pembaur v. City of Cincinnati, 475 U.S. 469,

483-84 (1986)("municipal liability under § 1983 attaches

where a deliberate choice to follow a course of action is made

from among various alternatives by the official or officials

App. 143

responsible for establishing final policy with respect to the

subject matter in question.") The Lower Courts impermissibly

intruded into the fact finding function of the jury in

determining that the decision to depart from accepted industry

standards was reasonable.

b. The Court May Not Make a Decision on

Reasonableness As a Matter of Law ir the Face

of Expert Evidence that the Conduct Was Not

Reasonable

Expert testimony is often employed to help jurors

understand issues and evidence which is outside of the

average juror's normal realm of experience. We have stated

that, the employrnent of testimony of an expert rises from

necessity, a necessity burn of the fact that the subject matter

of the inquiry is one involving special skill and training beyond

the ken of the ordinary layman. Reardon v. Meehan, 424 Pa.

460, 465, 227 A.2d 667, 670 (1967). Conversely, if all the

primary facts can be accurately described to a jury and if the

jury is as capable of comprehending and understanding such

facts and drawing correct conclusions from them as are

App. 144

witresses possessed of special training, experience or

observation, then there is no need for the testimony of an

expert. Young v. DOT, 560 Pa. 373, 376-77, 744 A.2d 1276,

1278 (2000). Although there do not appear to be any reported

cases on the question of whether expert testimony is

mandatory in a § 1983 case, standards for the incarceration of

seriously suicidal inmates are not within the common ken of a

layperson, and expert testimony is therefore required.

Normally a plaintiff may establish his case with any

evidence, direct or circumstantial. Where, however, the

ultimate determinations lie beyond the knowledge or expertise

of the average layperson, expert testimony is permitted {and

sometimes required) to aid the jury in its understanding of the

factors involved and the teaching of the pertinent discipline

with respect thereto. Reardon v. Meehan, 424 Pa. 460, 227

A.2d 667 (1967); Weisman v. Sauder Chevrolet Co., 402 Pa.

272, 167 A.2d 308 {1961); Densler v. Metropolitan Edison Co.,

235 Pa.Super. 585, 345 A.2d 758 (1975); Hamil v. Bashline,

481 Pa. 256, 266-267, 392 A.2d 1280 (Pa. 1978)

App. 145

The question of whether competent and unchallenged

expert evidence on a material issue itself precludes Summary

Judgment was addressed by this Court in the context of

medical negligence in Hamil. In that case, the Court noted

that

Whereas typically a plaintiff alleges that a

defendant's act or omission set in motion a

force which resuited in harm, the theory of the

present case is that the defendant's act or

omission failed in a duty to protect against

harm from another source. To resolve such a

claim a fact-finder must consider not only

what did occur, but also what might have

occurred, te., whether the harm would have

resulted from the independent source even if

defendant had performed his service in a non-

negligent manner

481 Pa. at 270, 392 A.2d at 1287. The Court therefore held

that where there is at issue the adequacy of services rendered

therefore, a prima facie case of liability is established by expert

testimony. The Court therefore reversed the award in favor of

Defendants.

Similarly, in Hightower-Warren v. Silk, 548 Pa. 459; 698

A.2d 52 {1997}, this Court held without reliance on Hamu, that

judgment was improperly entered against Plaintiff, and she

App. 146

was entitled to a jury trial because the proffered testimony of

her expert, when all inferences were drawn her favor,

established a prima facie case.

One recent reported case suggests that where a Plaintiff

has produced relevant and admissible expert evidence, it is

error to grant Summary Judgment. In Morningstar v. Hailett,

2004 PA Super 337, P16 (Pa. Super. Ct. 2004), the Superior

Court reversed the Court of Common Pleas of Franklin

County’s entry of summary judgment on the issue of whether

the grant of summary judgment was in error in denying her

the opportunity to present expert evidence and testimony. In

that case, the Court of Common Pleas had ruled that the

expert evidence in question would not be admitted. The

Superior Court overruled both the exclusion and the grant of

Summary judgment, holding that there was no support in the

record for the exclusion of the proffered testimony, and that

since the testimony is directly relevant to the claim Summary

Judgment was inappropriatc.

There is no principled distinction between a medical

negligence case, in which the theory is that the defendant's

‘

PRP ee Oe ae

seeps

App. 147

omission failed in a duty to protect against harm from another ~

source, and a section 1983 conditions of confinement case, in 4

which the theory is the same. In this case, there has been no :

consideration of Plaintiff's expert evidence at all. Both the .

Court of Common Pleas and the Commonwealth Court have

never suggested that Mr. Hayes testimony would not be ’

admissible.

CONCLUSION

The Court of Common Pleas once recognized that this is ;

not a case which is clear and free from doubt as to whether ;

the Lehigh County Prison and Warden Meisel acted reasonably

in response to a known risk of serious injury. This was the j

correct decision. Thereafter, this case took a tortuous route,

made even more convoluted by the errors discussed herein.

This Petition for Allowance of Appeal requests that this

Honorable Court correct the errors of law perpetuated by the

Commonwealth Court in the interest of all future inmates who

are threatened by suicidal ideation.

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