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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

The opinion of the court was delivered by: JACOB HART, Magistrate Judge


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 Cir. 1988).*fn1

  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. 2003).

  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. at 521.

  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 capacities.
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.

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