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August 18, 1995

STEVEN A. LITZ, ESQUIRE, Guardian for the Estate and Person of BOBBY F. CHAIN, JR. Plaintiff,

The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 Van Antwerpen, J.

 August 18, 1995

 This civil rights action, brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and the Eighth and Fourteenth Amendments to the United States Constitution, arises out of the attempted suicide of Bobby Chain Jr. while he was being held in a holding cell. The complaint also asserts supplemental state law claims. On July 18, 1992, Bobby Chain, Jr. attempted to hang himself using his socks in a holding cell at the Allentown, Pennsylvania Police Department. Plaintiff, Stephen A. Litz, Esq., Guardian for the Estate and Person of Bobby Chain Jr., seeks to recover damages resulting from the attempted suicide. There has been an opportunity for discovery and defendants have moved for summary judgment on all counts.


 On July 18, 1992, plaintiff's ward, Bobby F. Chain, Jr. ("Chain"), attempted to commit suicide while in custody in a holding cell at the lockup of the City of Allentown Police Department ("Department"). Chain was given medical attention and his death was prevented. Nevertheless, plaintiff alleges that the suicide attempt resulted in permanent brain damage to Chain, who has been adjudicated incapacitated. Plaintiff, Chain's guardian, seeks damages against defendants with respect to this suicide attempt. *fn1"

 From 1981 to 1992, Chain was involved in over twenty (20) incidents with the Allentown Police Department. Nine of these incidents involved public drunkenness and resulted in Chain being held in custody until he became sober. Over the years, a number of officers of the Allentown Police Department became familiar with Chain.

 In particular, Officers Charles Kulp and Douglas Marsteller were familiar with Chain. On the evening of July 17, 1992, they responded to a call for a hit and run accident and discovered Chain at a street corner in an intoxicated state. Officer Ronald Miller also responded to the call. Chain told the officers that he had been talking with the driver of a car which then pulled away and ran over his foot. Kelp arrested Chain for public drunkenness and took him into custody so he could be held until he became sober. Chain passively resisted, but with some coaxing, he was arrested without incident. Officer Kulp testified that he told Chain:

. . . you're pretty drunk you know. We have an obligation. We have a responsibility. And I told Ronnie we better arrest him for public drunk and take him in.
And we were trying to do it as peacefully as possible. I would say at that point that Bobby was a passive resister. He wasn't resisting overtly. He just was failing to respond to our commands. And he would remain stiff, was -- we were trying to put him in the car.
And I just kept talking, Come on, Bobby, you know that we have got to do this, you know we have to. This is the way it is. Hey, you can sleep it off, couple of hours you'll be out of here. You know the way it works. You know the system. . . .

 Deposition of Officer Charles W. Kulp, 4/19/95 at 28-29. Officer Miller transported Chain to the city lockup.

 At that time, Wayne Stephens was Chief of Police of the City of Allentown and responsible for all executive functions of the Department. Prior to Chain's arrest, the Allentown Police Department had implemented various policies in order to ensure the protection of prisoners. For example, police officers were required to remove prisoners' belts, excess clothing, shoelaces and personal effects. In addition, video cameras were installed in the cells.

 At 1:57 a.m. on July 18, 1995, Sergeant Brad Fulmer was working in police headquarters when Chain was brought into the city lockup. He also was familiar with Chain. Pursuant to standard procedure, Chain's shoes, belt and personal effects were taken. Chain continued to be uncooperative until he was castigated by Fulmer.

 At approximately 2:07 a.m., Chain was placed in a jail cell wearing his shirt, pants and two pairs of socks.

 Defendant Officer Richard Schaffer was the duty officer at the lockup when Chain was placed in the holding cell. Like other officers, he had become familiar with Chain over a period of several years. Usually, the only prisoners who were held at the lockup for any period of time were intoxicated persons who were kept until they became sober. Other types of offenders were processed and released or moved to the County jail.

 As duty officer, in addition to administrative duties, Schaffer was responsible for prisoners once they were brought into a cell. Department regulations require the duty officer to enter the holding cell area every thirty (30) minutes to observe each prisoner personally. If the prisoner has known suicidal tendencies or says he might try to commit suicide, physical checks are required every fifteen (15) minutes. In addition, the duty officer has, on his desk, a TV monitor for each cell in the holding area.

 At around 2:15 a.m. or 2:20 a.m., while in the cell, Chain was hollering, banging on the walls, swearing, asking why he could not go home, and yelling about finding the officers' telephone numbers and addresses. Chain also made lewd comments and blew kisses at an Emergency Medical Technician who was in the area of the holding cell.

 Through the monitor, Schaffer noticed Chain standing on the cell bench holding his shirt over the camera, yelling at the camera, and unsuccessfully trying to hang his shirt over the camera. It is difficult to hang anything over the camera because of its design. Schaffer testified he was about to go into Chain's cell when another officer presented him with paperwork. Schaffer did not enter the cell. Schaffer saw Chain on the monitor as he stepped off the bench, lost his balance, and "flopped down" on the end of the bench. Schaffer stated it did not appear that Chain was hurt. He then became quiet and lay down on the bench.

 Deposition testimony revealed that when a prisoner touched one of the cameras in the cell, some of the officers would admonish the prisoner, take clothing away, threaten to shackle the prisoner, or actually shackle the prisoner to the cell bench, depending on the individual and whether the individual heeded the warnings. Schaffer, however, did not enter the holding cell nor did he admonish Chain. Rather, he began to perform some of his administrative duties.

 When asked at his deposition if he had considered shackling Chain to the bench located in the cell, Schaffer responded in the negative, explaining

 Deposition of Officer Richard Schaffer, 1/4/95 at 75.

 At some point thereafter, Chain managed to block the camera, remove the two pairs of socks he was wearing, tie three of the socks in a loop around his neck and around a bar on the cell door, and hang himself.

 From his position at the front desk, Schaffer saw a shirt over the camera and saw something tied to the cell bar. Schaffer then entered the cell block area and discovered Chain hanging by the socks in almost a sitting position.

 With the assistance of other officers and Emergency Medical Technicians, Schaffer cut the socks and began emergency medical procedures. The Emergency Medical Technicians reported that they had been summoned at 2:30 a.m. Eventually, Chain was placed on a litter, taken to an ambulance and transported to a hospital. Chain survived the incident but is alleged to have suffered brain damage.

 Plaintiff claims the City of Allentown, Stephens, Schaffer and various unknown officers violated Chain's constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution, and that compensation is due under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff also asserts various tort claims against defendants under Pennsylvania law.

 Lamentably, this is not the first time a prisoner has attempted to commit suicide at the Allentown Police Department. In 1986, a prisoner hung himself from a ceiling grate. In response, mesh was placed over the grate, and windows were cut into the cell block and the duty officer's wall so that the officer could see into the cell block area directly. In 1989, a prisoner hung himself in his cell by using his socks. In response, video cameras were placed in the cells, high intensity lighting was installed, and locks and doors were updated. *fn2" From 1989 to July 19, 1992, several other suicides were attempted but none were successful.

 At the time of Chain's attempted suicide, the Department had implemented certain policies. When a prisoner was brought in, police officers would remove belts, excess clothing and shoelaces. As we noted, video cameras were in installed in the cells. The duty officer would personally observe each prisoner at certain intervals. If a person attempted or indicated a willingness to attempt a suicide, he would be placed on a fifteen (15) minute watch and Crisis Intervention would be called to take the person away to a mental health facility. If the duty officer left his desk, he was required to inform ...

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