# Appendix — Arocho v. Lehigh County County (No. 07-1361) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1413%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## 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 64 67 71 76 97 107 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 ee 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) j. k. 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 a. 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. a. 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 Se 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 o 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: © upon intake on February 8 when it was suspected that he overdosed on 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 . 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 v. 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: a 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 v. 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: a. b. c. 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 14 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. ep 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 6 Id ” 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. il 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. 12 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. ve N Pas $f os sl 9; 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. 4 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 1S 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. 16 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, 17 CREA. Lh ee 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. 18 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 20 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 21 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. 22 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 23 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 24 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... 25 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 26 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 27 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 28 « . “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 30 Fs 'G 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 31 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 32 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) 33 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 34 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 35 ‘ q 4 % ‘ 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 simply ignored this evidence. Indeed, Lehigh County has © 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. 36 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1413%3A2. Public record. Not legal advice.