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Kulp v. Veruete

November 1, 2006

TIMOTHY D. KULP, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF TIMOTHY M. KULP, DECEASED; AND CAROL L. KULP, PLAINTIFFS
v.
SONIA VERUETE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Muir, District Judge.

Complaint Filed 08/25/2003

OPINION

I. Introduction

The procedural history of this case is set forth in prior orders of court and we will not repeat that history other than as needed to address the pending motions for summary judgment. This action arises out of the suicide of Plaintiffs' son, Timothy M. Kulp, while incarcerated at the Centre County Prison.

On June 29 and July 1, 2004, we issued orders which dismissed the bulk of the claims set forth in an amended complaint filed on May 3, 2004. After those orders were issued the only matters remaining were a motion to dismiss a so-called "Corrected First Amended Complaint" and claims against 10 "John Doe" Defendants. On July 27, 2004, Plaintiffs filed a notice of appeal from our orders of June 29 and July 1, 2004. On July 28, 2004, we dismissed the "Corrected First Amended Complaint." With respect to the appeal, the Court of Appeals on September 9, 2004, granted a defense motion to amend the case caption to reflect only those parties named in the amended complaint. The Defendants named in the amended complaint were the following individuals: (1) Sonia Veruete, Lieutenant; (2) Shannon Quick, Counselor; (3) James E. Smith, Lieutenant: (4) Timothy Gallu, Counselor; (5) David C. Knepp, correctional officer; (6) Terry L. McClellan, correctional officer; (7) Wilmer S. Andrews, Jr., correctional officer; (8) correctional officer Shearer; (9) Eric R. Gates, correctional officer; (10) Scott L. Stefanko, correctional officer; and (11) John Does No. 1-10.

On February 10, 2006, the Court of Appeals reversed our orders of June 29 and July 1, 2004 and remanded the case to us for further proceedings. The Court of Appeals relying on Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988)(hereinafter referred to as "Colburn I") stated that "[l]ike the complaint in Colburn I, as supplemented by the memorandum, the Amended Complaint in this case contains numerous facts which, when viewed in their totality and supplemented by information obtained in discovery, might support an inference of liability on the part of some or all of the Prison employees." Doc. 126-2, Not Precedential Slip Opinion, p. 10. The Court of Appeals further stated that the amended complaint "was dismissed before they had an opportunity for discovery, and 'any expectation of factual sufficiency was premature.'" Id. at 11. On March 6, 2006, the Court of Appeals issued a certified copy of the judgment in lieu of a formal mandate.

On March 8, 2006, we issued a scheduling order setting a discovery deadline of July 21, 2006, a dispositive motions deadline of August 1, 2006, a pretrial conference for October 2, 2006, and jury selection for November 2, 2006. On July 10, 2006, Plaintiffs filed a motion for a one month extension of all scheduling deadlines. On July 11, 2006, we issued an order placing the case on the December, 2006, trial list and adjusting the scheduling deadlines in accordance with that trial list. The dispositive motion deadline under that order was September 1, 2006.

On August 30, 2006, Defendant Gallu filed a motion for summary judgment, a statement of material facts, evidentiary materials and a supporting brief. Plaintiffs filed a brief in opposition on September 26, 2006.

On August 31, 2006, Defendants Veruete, Smith, Stefanko, Knepp, McClellan, Andrews, Gates and Shearer filed a motion for summary judgment, a statement of material facts, evidentiary materials and a supporting brief. On September 25, 2006, Plaintiff filed a brief in opposition.

On September 1, 2006, Defendant Shannon Quick filed a motion for summary judgment, a statement of material facts, evidentiary materials, and a supporting brief. Plaintiffs filed a brief in opposition on September 25, 2006.

The motion for summary judgment filed by Defendants Veruete, Smith, Stefanko, Knepp, McClellan, Andrews, Gates and Shearer and the motion for summary judgment filed by Defendant Quick became ripe for disposition on October 13, 2006, when those Defendants elected not to file reply briefs. Defendant Gallu's motion for summary judgment became ripe for disposition on October 16, 2006, when he elected not to file a reply brief.

II. Legal Standard

The court will consider the motions for summary judgment under the well-known and accepted standards to be considered in determining whether or not to grant summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986); Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Federal Rule of Civil Procedure 56(c) requires that the court render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). If, however, "the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." Advisory Committee Notes to Fed. R. Civ. P. 56(e)(1963 Amend.). Furthermore, the evidence and inferences therefrom must be viewed in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 585.

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation, 477 U.S. at 323. This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

Rule 56 provides that, where a summary judgment motion is made and properly supported, the adverse party must show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of its case that a reasonable judge or jury could find in its favor. Celotex Corporation, 477 U.S. at 322-23.

When addressing a motion for such a judgment, our inquiry focuses on "whether the evidence presents a sufficient disagreement to require [a trial] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52(emphasis added).

As summarized by the Advisory Committee on Civil Rules, "[t]he very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Fed. R. Civ. P. 56, Advisory Committee Note to 1963 Amendment.

III. Summary Judgment Record

The following rendition of the facts of this case is gleaned from the summary judgment record submitted by the parties, which includes the amended complaint, deposition transcripts, state court documents and prison records.

On August 26, 2001, a criminal complaint with an affidavit of probable cause attached was filed against Timothy M. Kulp by Officer John A. Torres, Jr., of the Pennsylvania State University ("PSU") Police Department. The complaint and affidavit of probable cause were filed before District Justice Ronald J. Horner in Centre Hall, Pennsylvania.

According to the complaint and affidavit of probable cause, Timothy M. Kulp on August 25, 2001, at approximately 2:45 a.m., entered Mifflin Hall, a building located on the Pennsylvania State University campus which housed female students with the permission of a female student housed in that building. After entering Mifflin Hall, the female student who permitted him to do so observed Kulp attempt to enter several rooms between rooms # 120 and #117 by pushing on locked residence hall room doors. It is alleged that at 4:05 a.m. Kulp entered room 302 and lay down next to the female occupant of the room who was sleeping. The female occupant was awakened by the conduct of Kulp which included having his "right hand up her shorts resting on her thigh and vagina."

The affidavit of probable cause reveals that Kulp's next stop was room 105. It is alleged Kulp entered that room between 4:45 a.m. and 5:00 a.m. entered a bed occupied by a female student and "kissed her on the lips" and "touch[ed] her indecently without her consent." Kulp allegedly "had one hand beneath her shirt on her breast and the other hand down the front of her pants and underwear and on her vagina." Kulp thereafter entered room 301 at approximately 5:20 a.m. and lay down on the bed of a third female student without her consent.

On August 25, 2001, Police Officer Torres received reports about Kulp's entry into rooms 105, 301 and 302 of Mifflin Hall. Officer Torres spoke to the female occupant of room 105 at about 3:57 p.m. on August 25, 2001. At 5:15 p.m. on August 25, 2001, Ronald Schreffler, an investigator with the PSU Police Department, spoke to the female occupant of room 301. At 7:00 p.m. on August 25, 2001, an officer spoke with the female student who permitted Kulp to enter Mifflin Hall and observed Kulp attempt to enter several rooms.

At 7:25 p.m. on August 25, 2001, Investigator Schreffler interviewed Kulp at the PSU Police Department. During the course of that interview Kulp admitted that he entered Mifflin Hall and engaged in the conduct outlined above.

Officer Torres at 8:00 p.m. on August 25, 2001, also interviewed Kulp. Officer Torres summarizes that interview in the affidavit of probable cause as follows:

Kulp stated he went to Phi Delta Theta fraternity for a party on 8/25/01. At this fraternity, Kulp said he consumed beer and vodka and smoked marijuana from a bong. Kulp stated he then went to another fraternity and continued to consume alcohol. Kulp stated he then walked back onto the PSU campus. Kulp stated he intentionally walked to Mifflin Hall to find female companionship. Kulp stated he was looking for someone to hold and love as well as have sex with. Kulp stated he arrived at Mifflin Hall. Kulp stated he was not a resident of Mifflin Hall. Kulp stated he could not remember the means by which he entered. Kulp stated he then wanted female companionship so he intentionally started going room by room pushing on doors to find unlocked ones. When asked, Kulp stated his intentions were to get into bed with a female to hold her and possibly have sex with her. He said he just wanted to be with someone. When asked how many residence hall rooms Kulp entered, he stated he could not give a number, but that it was "a lot." Kulp admitted to fondling the breasts and vaginas of an unknown number of females in Mifflin Hall. When asked, Kulp stated he did not have the permission or consent of any of the occupants to enter their respective residence hall rooms or get into bed with them or have any physical contact with them.

With respect to Kulp's entry into room 302, Officer Torres at 10:00 p.m. interviewed the female occupant of that room.

After all the interviews were conducted, the criminal complaint and affidavit of probable cause were prepared and an arrest warrant was obtained from District Justice Horner. Kulp was charged as follows:

Offense Grade # of Counts Section of Title 18 of the Pennsylvania Crimes Code Burglary Felony of the 3 3502(a) First Degree

Criminal Felony of the 1 3503(a)(1)(I) Trespass Third Degree

Indecent Misdemeanor of 2 3126(a)(1)(4) Assault Second Degree

Harassment Summary Offense 3 2709(a)(1) Criminal Felony of the Attempt First Degree 1 901(a) Kulp was arraigned on the charges before District Justice Horner and then transported to the Centre County Prison by Officers Torres and Hess. The officers along with Kulp arrived at the Centre County Prison at 2:24 a.m. on August 26, 2001. The criminal complaint and affidavit of probable cause were included in Kulp's commitment documentation.

In a supplemental incident report prepared on August 30, 2001, Officer Torres explains what occurred when he arrived at the Centre County Prison. In that report Officer Torres states in relevant part as follows:

On 26 August 2001 at [2:24 a.m.], this officer and Officer Hess arrived at the Centre County Jail with Kulp. Officers then entered the holding area of the jail and this officer spoke with the CCJ Lt. in charge at the intake holding area. This officer spoke to Lt. Sonia Vervete (sic). Lt. Vervete (sic) was advised by this officer that Kulp was non-violent with officers. The Lt. was also advised that Kulp exhibited bazaar behavior including mood swings while in the custody of officers. The Lt. was told that Kulp told officers in the interview that he was diagnosed as bi-polar (sic) and manic depressive but was not taking his medications as prescribed. Lt. Vervete (sic) was told that Kulp was question (sic) by this officer concerning his mental status and he made no threats or expressed in any way that he was thinking of harming himself. Lt. Vervete (sic)was advised to keep an eye on him due to the above. Lt. Vervete (sic) made the statement to this officer that she noticed right away that "something was up" with him. The Lt. advised that they (staff) would keep and (sic) eye on him. Lt. Vervete (sic) was also advised that Kulp had charges pending against him in Pottstown, PA . . . .

Doc. 154, Exhibit 2 to Plaintiffs' Brief in Opposition (emphasis added).

Several documents were generated at or about the time of Kulp's commitment to the Centre County Prison. First, there is a document which has been referred to by Plaintiffs as "Kulp's Adjustment Record." Doc. 154, Exhibit 7 to Plaintiffs' Brief in Opposition. That document is a printed form. At the top of the document is the name "Kulp, Timothy Michael" which is handwritten. Under the "Name" section in the "Remarks" section of the document is the handwritten notation "cooperative, upset." Next to the "Remarks" section is the "Date Received" section with the handwritten date "8-26-01." Under the date received section is the "Cell No." section which is handwritten in as "THU 1." Next to the cell number is a section entitled "Placed By" with the name "Lt. Veruete" handwritten. Below these introductory sections of the form is a columnar comment section which notes the date, time, comment and officer's signature. There are only two comments on the document. The first comment is dated "3-26-01." The time is noted as "02:20." The comment is "cooperative, upset" and the signature is illegible. The second comment is dated "3-26-01. The time is noted as "0752 AM." The comment is as follows:

"Centre County Can Help" Shannon Quick is [illegible] to interview inmate. (See attached report) states after the interview that inmate is not a threat to himself at this time. Suggests he see prison counselor tomorrow and further suggests we keep an eye on him. (Emphasis added.) This comment was signed by "Lt. Smith." It is not clear whether the sections of the top portion of this document (Name, Remarks, Date Received, Cell No. and Placed By) were completed at the same time.

The top portion of "Kulp's Adjustment Record" indicates that Kulp was placed in cell number "THU 1." Defendant Veruete during her deposition testified that "THU 1" referred to Temporary Housing Unit 1 which was close to the intake or commitment area. However, she also testified that Kulp was not placed in Temporary Housing Unit 1 until after the commitment process was completed and she had spoken to Defendant Knepp regarding his observations that Kulp was "upset."

Defendant Knepp during his deposition testified that the commitment process, including the suicide prevention screening, took between 20 and 45 minutes to complete. We further know from prison records that Defendant Veruete called Centre County Can Help at 2:58 a.m. after speaking to Defendant Knepp about his concern that Kulp was "upset." If the commitment process took 20 minutes then Kulp would have been placed in Temporary Housing Unit 1 sometime between 2:40 a.m. and 2:58 a.m on August 26, 2001. If we accept Officer Torres's report that he arrived at Centre County Prison at 2:24 a.m., Kulp would have been placed in Temporary Housing Unit 1 sometime between 2:44 a.m and 2:58 a.m. Even before Shannon Quick of Centre County Can Help was contacted, Defendant Veruete decided to place Kulp in Temporary Housing Unit 1 so that he could be observed more easily.

As noted above, the officer's signature with respect to the first comment on the "Adjustment Record" is illegible. However, the handwriting in the introductory portion of that document is very similar to the handwriting of the first comment, i.e., "cooperative, upset." Defendant Knepp testified during his deposition that he did not complete the introductory portion of the "Adjustment Record" and that the illegible signature was not his signature.

During the commitment process a document entitled "Medical Observation Report" was prepared. See Doc. 154, Exhibit 9 to Plaintiffs' Brief in Opposition. The document provided to us consists of two pages. At the top of the first page are the words "Medical Observation Report Centre County" The document then sets forth, inter alia, the name of the decedent and his sex, race, birth date, booking number, and social security number. A series of medical questions commences approximately halfway down the first page. The "Medical Questions" portion of the two page document states in relevant part as follows:

Medical Questions Answers are Y=Yes, N or Blank=No, R=Refused to Answer Order Question Y/N/R Brief Note

1 ANSWERED UNRELIABLE N

2 ANSWERS UNAVAILABLE N

3 SEVERE MENTAL PROBLEM N

4 BLEEDING N

5 BREATHALYZER READING N

6 COUGHING/SPITTING N

7 DIFFICULTY BREATHING N

8 DIFFICULTY MOVING N

9 D.T.'S N

10 DRUG INFLUENCE N

11 FEVER N

12 ...


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