filed: December 6, 1990; As Corrected January 4, 1991.
On Appeal From the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 88-0780.
Becker, Greenberg, Circuit Judges and Dumbauld, District Judge.*fn*
This is an appeal from the district court's grant of summary judgment against plaintiff/appellant Ricky Shaw, a profoundly retarded man who resides at the state mental institution located in Embreeville, Pennsylvania. Shaw brought an action for damages under 42 U.S.C. § 1983 (1982) against some twenty-four employees of Embreeville, alleging that they had deprived him of constitutionally protected rights to freedom from unreasonable bodily restraint and to safe conditions of confinement. Shaw presents three federal claims. First, he asserts that he was unconstitutionally restrained when a seatbelt was wrapped around his legs in order to secure him to his wheelchair. Second, Shaw contends that various defendants failed to protect him from abuse, and that this nonfeasance resulted in his assault on February 3, 1986. Third, he submits that even in the wake of that incident, defendants still took no steps to protect him, and that this nonfeasance resulted in a much more serious sexual assault on February 15, 1986.
Shaw argues that the district court committed legal error in three particular respects: (1) in excluding affidavits of his expert witnesses on the ground that they were not founded on personal knowledge; (2) in evaluating defendants' conduct under a deliberate indifference standard of fault, rather than the standard articulated in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), which inquires whether treatment of an involuntarily institutionalized mental patient was "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323; and (3) in concluding that the record contained insufficient evidence for a jury to find that any of the defendants were personally responsible for the alleged deprivations of Shaw's constitutional rights. Shaw contends that when all of the evidence is considered and the correct legal standard is applied, the record contains genuine issues of material fact with regard to defendants' liability on each claim.
It is clear that the district court erred to the extent that it excluded the experts' affidavits solely because they were not based on personal knowledge. See Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975). To the extent that the affidavits assumed facts about this case unsupported by the record, however, the expert opinions were properly disregarded. See Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 745 F.2d 248, 262 (3d Cir. 1984), cert. denied, 471 U.S. 1016, 85 L. Ed. 2d 303, 105 S. Ct. 2021 (1985). We conclude that the experts' opinions should have been considered with respect to the third claim, but not the first two.
We conclude that the district court also erred to the extent that it applied a deliberate indifference standard in assessing the culpability of all defendants. Although that standard governs the liability of the nonprofessional employee-defendants, we hold that the Youngberg professional judgment standard should have been applied to the primary care professionals, supervisors and administrators named as defendants. Under either standard, however, we conclude that Shaw's first two claims were rightly rejected by the district court. There is insufficient evidence to support a finding that Shaw was, in fact, significantly restrained. In addition, the defendants' behavior prior to the February 3 incident can be characterized, at most, as simple negligence and thus does not rise to the level of egregiousness required under either standard.
The district court did err, however, in granting summary judgment to all defendants on Shaw's third claim, relating to the February 15 incident. We conclude that Shaw has produced evidence sufficient to show that seven of the professional defendants may have failed to exercise professional judgment in providing for his safety after February 3. As to the remaining seventeen defendants, we are satisfied that the record does not contain sufficient evidence for Shaw to survive summary judgment. Accordingly, we will affirm in part, reverse in part, and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY*fn1
Shaw has an I.Q. of ten and the mental development of a ten-month-old infant. Now about forty, he has been involuntarily institutionalized since the age of four. Shaw lived at Embreeville Center, a large state institution for the mentally retarded, from 1972 until after the events giving rise to this action. While at Embreeville, Shaw lived in a closed ward with 15 other retarded individuals. Unable to walk, Shaw spends the majority of his time sitting in a wheelchair or crawling about under his own volition. Shaw is not toilet-trained and is unable to dress himself or to attend to his own needs. He requires virtually constant supervision.
Shaw's wheelchair was equipped with a seatbelt to prevent him from falling out of the chair. Defendant T. Max Williams, Shaw's attending physician, instructed that the belt be wrapped around Shaw's waist during transport to prevent him from slipping out of the chair. There is some evidence that the seatbelt often remained fastened much longer than necessary for safe transport. Nevertheless, when positioned around Shaw's waist, the belt did not prevent Shaw from leaving his chair. When he desired, he was able to unbuckle the seatbelt and slip onto the floor, where he could crawl about at will.
On some occasions, however, certain Embreeville staff would wrap the seatbelt under one of Shaw's legs and over the other in order to keep him more firmly secured. The record suggests that this manner of securing Shaw was somewhat more restrictive than tying the belt around his waist, although he apparently could still get out of the wheelchair. Defendant Jane Cosner, a member of the direct care staff, testified that the fastening of the seatbelt in this manner prevented Shaw from slipping down under the belt and that it made it "difficult" for him to move. Another direct care employee, defendant Thomas Saunders, testified that although the belt was "more restrictive" when tied around Shaw's legs than when around his waist, Shaw was nonetheless able to wriggle out of the wheelchair when he wanted to. The record reflects, moreover, that the seatbelt was not wrapped around Shaw's legs in this manner very often. According to defendant Deborah Brown, for example, Shaw spent about three quarters of each day in the wheelchair, yet she never noticed the belt wrapped around his legs. Although Saunders admits to being instructed in this manner of securing Shaw in the wheelchair when he first began working on the ward, he also states that the method was not commonly employed. Other defendants are in general agreement that if the belt was wrapped around Shaw's legs at all, it was done on an infrequent basis, and there was no direct evidence to the contrary.
On February 3, 1986, Shaw disappeared from his ward for over an hour. When he was found, the staff discovered that his clothes had been tampered with and that there was blood in his diaper. Dr. Williams examined Shaw and discovered two one-quarter inch lacerations around his anus. He concluded that these injuries were most likely the result of forced penetration by a hard object and possibly of sexual assault. An internal abuse investigation was conducted, which failed to uncover the exact cause of Shaw's injury. Dr. Williams later retreated from his initial diagnosis of sexual assault, testifying at his deposition that Shaw's injury might have been due to other causes, such as rectal digging. Other Embreeville employees, however, testified that when Shaw was found on February 3, his fingernails were clean.
The record indicates that before the February 3 incident, Embreeville had provided Shaw with adequate care and appropriate treatment, and that Shaw had suffered no previous injuries at Embreeville, either accidental or inflicted. There is no indication that violence against other inmates occurred with any degree of frequency before February 3, or that any violence had been perpetrated upon other residents of Shaw's ward. Defendant Barbara Anderson later told police that two female patients in another ward at Embreeville had been sexually assaulted a few months before the incident. However, the record does not contain any abuse investigation report regarding these assaults, any other documentation of these assaults, or even corroborating testimony of these assaults by other Embreeville employees.
Except for conducting the internal abuse investigation, the Embreeville staff failed to take any additional precautions to protect Shaw after the February 3 incident. The staff failed to transfer him to another ward, failed to increase the level of Shaw's supervision, failed to report the incident to the state police as required by its policy manual, and failed to isolate Shaw from James Ingram, a member of the Embreeville housekeeping staff, who by February 14 had emerged from the investigation as a leading suspect in the February 3 incident.
On February 15, twelve days after the initial incident, Shaw once again disappeared from his ward. When he was located, examination revealed a deep laceration around the base of his penis. Dr. Williams ordered Shaw taken to a local hospital, where he received medical attention. The hospital contacted the police, whose investigation of both incidents failed to identify the perpetrator. Among the staff who had access to Shaw on February 15 were Ingram; Saunders, who had been previously convicted of violent felonies; and Mary Gelnett, a direct care employee, who had been transferred from another ward because she was suspected of abusing another resident. Soon after February 15, Ingram disappeared from Embreeville without a trace.
Shaw, by his parent and next friend Jessie B. Strain, brought an action for damages under 42 U.S.C. § 1983, alleging that he was harmed as a result of defendants' failure to provide him with reasonable conditions of safety and freedom from bodily restraint. Shaw sued some twenty-four defendants, including Dr. Williams, his primary care physician; members of the primary care staff who had wrapped the seatbelt around his legs; members of the staff assigned to watch over him on both February 3 and February 15; and various administrative and supervisory officials ranging from the Director of Embreeville to Shaw's program coordinator.
After extensive discovery, all defendants moved for summary judgment. At that point, the record contained expert witness affidavits introduced by Shaw bearing on each of his three claims. In support of his bodily restraint claim, Shaw submitted two affidavits by medical professionals and one by a custodial professional. Respectively, the affidavits characterize the use of the seatbelt around Shaw's legs as "the tying of an individual into a wheelchair," (Fitzgerald affid.), "ty[ing] someone up into a chair 10 to 14 hours a day" so as to "prevent [him] from movement," (Tislow affid.), and "ty[ing] his legs around and through . . . so as to prevent him from moving," (Dillon affid.).
Shaw also presented expert opinions regarding the conduct of the Embreeville staff as it related to both assaults. Dr. Roy Fitzgerald opined that allowing the February 3 incident to occur was "beyond any medical standard," given the occurrence of two prior assaults and Shaw's need for constant supervision. Dr. Richard Tislow stated that Dr. Williams had an "obligation," after the February 3 incident, to (1) conduct appropriate medical tests to determine whether a sexual assault had in fact occurred (such as checking for semen in the anus), and (2) provide additional protection for Shaw (given the likelihood that an assault had occurred). Michael Dillon, a custodial professional, echoed Fitzgerald's statements and further testified that the custodial officials at Embreeville had the same obligations to Shaw that Tislow imputed to Williams. Dillon also opined that they had a "fundamental obligation" to inform the police immediately of the February 3 incident.
The district court granted summary judgment in favor of all defendants as to all claims. ...