United States District Court, E.D. Pennsylvania
May 26, 2004.
PATRICIA DEEMER, Individually and as Representative and as Administrator of the Estate of Wade Evan Deemer
COUNTY OF CHESTER (BOROUGH OF WEST CHESTER), et al
The opinion of the court was delivered by: JACOB HART, Magistrate Judge
ORDER AND OPINION
Patricia Deemer ("Mrs. Deemer") has brought this action,
individually, and as a representative of the estate of her former
husband, Wade Evan Deemer. Defendants, the County of Chester (Borough of
West Chester) ("West Chester") and Scott Bohn, the West Chester Borough
Chief of Police, have moved to dismiss the case on the pleadings under
Fed.R.Civ.Pr. 12(c). For the reasons set forth below, I will grant
their motion in part and deny it in part.
I. Factual and Procedural Background
On August 24, 2002, Wade Evan Deemer hanged himself while detained in
the holding cell of the West Chester County Police Station. Complaint at
¶ 23. In Count I, Mrs. Deemer has alleged that Defendants violated
Mr. Deemer's constitutional rights in violation of 42 U.S.C. § 1983
through their "policies and procedures, and through their failure to
train police personnel concerning the safety and psychological needs of
incarcerated persons in their custody." Complaint at ¶ 26. In the
second and third counts of her complaint, Mrs. Deemer alleges "Special
Relationship" and "State Created Danger," as separate theories for
recovery under 42 U.S.C. § 1983. She has also alleged pendent claims
under state law. In their motion to dismiss, Defendants maintain that Mrs. Deemer's
claims all fail at the pleading stage, primarily because she has not
alleged that any individual who came into contact with Mr. Deemer knew
that he was likely to commit suicide.
II. Legal Standards
A. Dismissal on the Pleadings
The Honorable R. Barclay Surrick recently summarized the law regarding
dismissal on the pleadings under Fed.R.Civ.Pr. 12(c):
In reviewing a motion pursuant to Fed.R.Civ.Pr.
12(c) we apply the same standard used to review a
motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6). Constitution Bank v. DiMarco,
815 F. Supp. 1154, 147 (E.D. Pa. 1993). We may not
grant a judgment on the pleadings under Rule 12(c)
"unless the movant clearly establishes that no
material issue of fact remains to be resolved and
that he is entitled to judgment as a matter of
law." Corestates Bank. N.A. v. Huls Am.,
Inc., 176 F.3d 187, 193 (3d Cir. 1999)
(quoting Kruzits v. Okuma Macn. Tool.
Inc., 40 F.3d 52, 54 (3d Cir. 1994)). We must
"view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most
favorable to the nonmoving party." Jablonski
v. Pan Am. World Airways. Inc., 863 F.2d 289,
290 (3d Cir. 1988) (quoting Society Hill
Civil Association v. Harris, 632 F.2d 1045,
1054 (3d Cir. 1980)). Of course, to survive a
motion for judgment on the pleadings, "the
plaintiff must set forth facts, and not mere
conclusions, that state a claim as a matter of
law." Allstate Transportation Co., Inc. v.
SEPTA, C.A. No. 97-1482, 1998 WL 67550 at *1
(E.D. Pa. Feb. 13, 1998).
Nesmith v. Independence Blue Cross, Civ. A. No. 02-2894,
2004 WL 253524 at *3 (E.D. Pa. Feb. 10, 2004).
B. Theories of Municipal Liability Under § 1983
As to Count I, the plaintiff in a prisoner suicide case must show that
(1) the detainee had a particular vulnerability to suicide; (2) the
custodial officer or officers knew of that vulnerability; (3) the
officers acted with reckless indifference to the detainee's
vulnerability. Farmer v. Brennan, 511 U.S. 825. 837-838 (1994):
Colburn v. Upper Darby Township ("Colburn IT"), 946 F.2d 1017, 1023 (3d Cir. 1990); Colburn v. Upper
Darby Township, ("Colburn I"), 838 F.2d 663, 668-69 (3d
Liability has also been imposed upon custodial institutions with regard
to the harm caused to inmates by third parties, or by the inmate himself,
on the basis that the custodial relationship gives rise to a "special
relationship" creating an affirmative duty on the part of the institution
to protect the detainee. Morse v. Lower Merion School District,
132 F.3d 902, 907 (3d Cir. 1997); Commonwealth Bank & Trust Co.,
N.A. v. Russell, 823 F.2d 12, 16 (3d Cir. 1987).
Finally, Count III asserts a claim under the theory of "state-created
danger", whereby a state actor can be held liable for harm caused by a
third party to the plaintiff where:
(1) [T]he harm ultimately caused was foreseeable
and fairly direct; (2) the state actor acted in
willful disregard for the safety of the plaintiff;
(3) there existed some relationship between the
state and the plaintiff; and (4) the state actors
used their authority to create an opportunity that
otherwise would not have existed for the third
party's crime to occur.
Schieber v. City of Philadelphia, 320 F.3d 409
, 417 (3d Cir.
Despite the phrasing in Schieber, it is clear that a
third-party is not necessary, since the state-created danger theory was
originally applied in a case where police detained and then released an
obviously intoxicated woman, who froze to death on her way home.
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). C. Individual Liability
An individual can be held liable under § 1983 for civil rights
violations only where is it shown that he personally performed, directed,
or knowingly participated in an illegal act. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In
Rode, the plaintiff alleged that Pennsylvania's Governor and
Attorney General had the responsibility for supervising the people who
had personal contact with her, and that, therefore, they could be held
liable for failing to prevent those people from committing allegedly
discriminatory acts. Id. The Court of Appeals for the Third
Circuit found that this was insufficient to create personal liability
on the part of the Governor or the Attorney General, and dismissed both
of them as defendants.
In an older case, but one which is even closer to the facts here, a
plaintiff who was injured by a fellow inmate alleged in his complaint
that the Commissioner of Corrections and the Superintendent of the
correctional facility breached a duty to him for (among other things)
failing to provide adequate training to the guards for the protection of
inmates. Curtis v. Everette, 489 F.2d 516, 520-521 (3d Cir.
1973). The plaintiff specifically wrote in his complaint: "[T]he
allegations are made, not on the basis of respondeat superior, but on the
basis of personal liability of the acts by the defendants." Id.
The Third Circuit Court of Appeals nevertheless affirmed the lower
court's dismissal of the case against the Commissioner and the
Superintendent, because there was in the complaint "no allegation of
facts indicating intentional action by these defendants `under color of
state law subjecting plaintiff or causing plaintiff to be subjected to
deprivation of his civil rights." Id. III. Discussion
A. Theories of Municipal Liability
As I have mentioned, Defendants' criticisms of the first three counts
of Mrs. Deemer's Complaint center around their position that Mrs. Deemer
has not alleged facts which would support a subjective knowledge on their
part that Mr. Deemer was predisposed to suicide. As to the first count,
Defendants cite Farmer. As to the claim of a special
relationship, Defendants maintain that "without knowledge that Deemer was
a suicide risk, Defendants could not have been deliberately indifferent
to Deemer's needs." Defendants' Memorandum of Law at 10.
Similarly, with respect to the state-created danger theory, Defendants
argue that Mrs. Deemer has not pleaded sufficient facts to support the
first, second and fourth points set forth in Schieber. Here
again, their reasoning is that "plaintiff does not allege that any West
Chester police officer had actual knowledge that Deemer was a suicide
risk." Defendants' Memorandum at 12. Therefore, Defendants could not have
acted with a willful disregard for Mr. Deemer's safety. Id. at
13. Defendants also argue that they did not create an opportunity that
otherwise would not have existed for Deemer to commit suicide.
It is true that Mrs. Deemer's complaint contains language suggesting
that she was looking to a "known or should have known" standard.
Nevertheless, when all alleged facts, and the inferences to be drawn
therefrom, are considered in the light most favorable to Mrs. Deemer, I
find that material issues of fact exist which preclude dismissal on the
pleadings. Mrs. Deemer has alleged in her complaint that Mr. Deemer suffered from
depression, alcoholism and bipolar disorder, and, crucially, that upon
incarceration, his "mental health decompensation was readily apparent and
unambiguous." Complaint at ¶¶ 6 and 15. This allegation is
supported by testimony from an acquaintance of Mr. Deemer's, referred to
as "G.C.", who occupied the neighboring cell, and who stated that Mr.
Deemer was "in despair." Chester County Detective's Statement Form for
G.C., attached as Exhibit E to Defendants' Answer. The Defendants respond
that Mr. Deemer was calm at all times. However, given the conflicting
evidence, Mr. Deemer's affect is clearly an evidentiary issue.
Mrs. Deemer has also alleged that information that Mr. Deemer was a
suicide risk was set forth on his intake form. Complaint at ¶ 14.
This, too, is supported by a report generated by the Defendants, who
reported that Mr. Deemer stated that he had considered suicide in the
past, although he was not considering it at that moment. Report of
Officer Michael Heidelbaugh, attached as Exhibit D to Defendants' Answer.
Moreover, Mrs. Deemer has alleged in her Complaint that Mr. Deemer told
G.C. very explicitly of his intention to commit suicide. Complaint at
¶ 16. This, too, is contained in the report attached to the Answer as
Exhibit E. Defendants counter that there is no evidence that G.C. told
any one of them of Mr. Deemer's plans. Nevertheless, in light of the
undisputed fact that Mr. Deemer's cell was monitored by continuous live
video feed, I agree with Mrs. Deemer that the issue of whether this
conversation might have been overheard is a disputed matter of fact.
It is important to remember that the lack of facts directly proving
actual knowledge of Mr. Deemer's risk of suicide would not even
necessarily be fatal at the summary judgment stage. In Farmer,
the United States Supreme Court explained that circumstantial evidence
was relevant on this point. The Court added: "a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the
risk was obvious." 511 U.S. at 842. Obviously, this lack of direct
evidence should be far less fatal in a 12(c) motion, filed
before the conclusion of discovery.
The Defendants also argue that Mrs. Deemer has not alleged that they
created an opportunity that otherwise would not have existed for Mr.
Deemer to commit suicide, as is required for a state-created danger
claim. However, Mrs. Deemer has alleged that Mr. Deemer's mental problems
were apparent, yet Defendants took no action to provide him with the
needed mental health care, but simply left him, inadequately supervised,
in a detention cell. This amounts to a claim, identical to the successful
claim in Kneipp, that Defendants created the opportunity for
Mr. Deemer's death by failing to protect him from himself.
Given the apparent factual issues raised by the pleadings in this case,
I will deny Defendants' motion with respect to the first three counts of
the Complaint in this action.
B. Chief of Police Scott Bohn's Individual Liability
The only reference to Chief Bohn in the Complaint is this:
Defendant Borough of West Chester Chief of Police,
Scott Bohn, is employed by the Borough of West
Chester, and is the person who is in direct
control of police policies, procedures, practices
and training concerning the arrest and detention
of suspects within the Borough and within the
Borough's Police facilities. Defendant Bohn is a
state actor for purposes of 42 U.S.C. § 1983.
He is being sued in his individual and official
Complaint at ¶ 3.
In response to Defendants' motion, Mrs. Deemer has already acknowledged
that her claims against Bohn in his official capacity are duplicative of
her claims against the municipality itself. See Will v. Michigan Department of State Police,
491 U.S. 58, 71 (1989); Kentucky v. Graham 473 U.S. 159, 165-66
(1985); Brandon v. Holt, 469 U.S. 464, 471-72 (1985). For this
reason, she does not contest the dismissal of these claims.
Moreover, Rode v. Dellarciprete and Curtis v.
Everette leave no doubt that Bohn cannot be retained as a defendant
in his individual capacity because Mrs. Deemer has not pleaded facts
which show that he took any intentional action to subject Mr. Deemer to
deprivation of his civil rights, or, in the words of the Court of Appeals
for the Third Circuit in Rode, that he personally performed,
directed, or knowingly participated in an illegal act. It is not
sufficient to allege that an official can be assumed to have taken
certain unspecified acts because he had the power to control other
Defendants. Accordingly, I will grant Defendants' motion as it relates to
the counts against Bohn in his individual capacity.
AND NOW, this day of May, 2004, upon consideration of Defendants'
Motion for Judgment on the Pleadings, docketed as Document No. 8,
Plaintiffs Answer thereto, and Defendants' Reply Memorandum, it is hereby
ORDERED that the motion is GRANTED IN PART and DENIED IN PART:
1. The motion is GRANTED in that all counts
asserted against Scott Bohn, West Chester
Borough Chief of Police are DISMISSED;
2. The motion is otherwise DENIED.