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Herman v. County of York

April 18, 2007


The opinion of the court was delivered by: Judge Jones



Two Motions are pending before this Court. First, two of the Defendants ("the County Defendants") in the above-captioned action, the County of York ("the County") and Thomas Hogan ("Warden Hogan"), filed a Motion for Summary Judgment on March 1, 2007. (Rec. Doc. 35). Second, the three remaining Defendants ("the PHS Defendants"), Prison Health Services, Inc. ("PHS"), Tamara Krzywulak,*fn1 and Kimberly Windon, filed a Motion for Summary Judgment on March 1, 2007. (Rec. Doc. 37). For the reasons that follow, the Motions shall be granted in part and denied in part.


On December 5, 2005, Plaintiff Deborah Herman ("Plaintiff") filed her Complaint in the above-captioned action. (Rec. Doc. 1). By July 27, 2006, all Defendants had filed their Answers. (See Rec. Docs. 3, 13).

On March 1, 2007, the County and Warden Hogan filed a Motion for Summary Judgment. (Rec. Doc. 35). On same date, PHS, Tamara Krzywulak, and Kimberly Windon filed their Motion for Summary Judgment. (Rec. Doc. 37). Although only one (1) Reply Brief has been filed, the time in which to file the other has passed. Thus, the Motions are ripe for disposition.


Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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. See id. at 325.

Rule 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. See 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 their case that a reasonable jury could find in its favor. See Celotex, 477 U.S. at 322-23.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.


Although the parties agree as to the general circumstances that led to the filing of the instant action, they disagree about some of the particularities thereof. Accordingly, in our disposition of the instant Motions, we will, where necessary, view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party, Plaintiff.

On April 9, 2003, Michael Herman ("Herman" or "Decedent") attempted to commit suicide multiple times. (Rec. Doc. 44, P-17 at 1). Because of the methods by which he made his attempts, Herman was involuntarily committed to the York Hospital for a period of ten (10) days and criminally charged with several offenses. (Rec. Docs. 44, P-17 at 1; 36, ¶ 1; 38, ¶ 1).

Following his release from the hospital, Herman pled guilty to the charges of burglary, theft, criminal mischief, and a firearms violation, all stemming from the events of April 9, 2003. As a result, on September 4, 2003, the Honorable Penny Lee Blackwell of the York County Court of Common Pleas sentenced Herman to serve six (6) to twenty-three (23) months. (Rec. Docs. 36, ¶ 1; 38, ¶ 1). On same date, Judge Blackwell approved Herman to serve the aforementioned sentence on house arrest and probation. (See Rec. Docs. 36, ¶ 1; 38, ¶ 1). However, because Herman did not comply with the terms of probation, on December 23, 2003, Judge Blackwell sentenced him to serve his six (6) to twenty-three (23) months at the York County Prison ("YCP"), and Herman was committed to YCP. (Rec. Docs. 36, ¶ 2; 38, ¶ 2). Notably, the sentencing Order included language requiring a mental health evaluation. (Rec. Doc. 36, Exh. 1).

Upon Herman's admission to YCP on December 23, 2003, Corrections Officer Stough ("CO Stough") completed a form entitled "Intake Medical Screen" regarding Herman. (Rec. Doc. 44, Exh. P-1). Therein, CO Stough indicated: 1) that based on his observations, Herman's "behavior/appearance" did not suggest a risk of suicide; 2) that Herman reported attempting suicide six (6) months prior; and 3) that Herman reported taking Depakote and Wellbutrin, two anti-depressants. (Rec. Doc. 44, Exh. P-1).

Sometime thereafter on December 23, 2003, Kimberly Windon ("Nurse Windon"), a licensed practical nurse ("LPN") employed by PHS who worked at YCP, talked with Herman and completed a form entitled "Admission Medical Evaluation."*fn2 (Rec. Docs. 36, ¶ 4; 38, ¶ 4; 37; Exh. B). During their discussion, Herman indicated that he had made at least one suicide attempt within the past six (6) to seven (7) months; that he had been hospitalized for psychiatric reasons; that he suffered from mental illness, namely attention deficient hyperactivity disorder ("ADHD") and bi-polar disorder (doc. 37, Exh. B); and that although he had been taking Depokote and Wellbutrin, he had run out of them one (1) month prior and had taken none since. (Rec. Docs. 36, ¶¶ 5-6; 37, ¶¶ 6-7; 38, ¶¶ 5-6; 39, ¶¶ 6-7). However, Herman denied current suicidal ideation. (Rec. Docs. 37, ¶ 6; 39, ¶¶ 6-7). Nevertheless, Herman's self-reporting caused Nurse Windon to characterize Herman as an emergent priority, meaning YCP's policy required that he be seen for a mental health evaluation within five (5) days. (Rec. Docs. 36, ¶ 9; 38, ¶ 9).

Notably, the parties dispute whether CO Stough or Nurse Windon were qualified to perform the so-called "screening" of Herman that one or both of them conducted on December 23, 2003. However, it appears quite clear to this Court that their meetings with, and preparation of forms regarding, Herman constitute, at a minimum, attempt(s) to comply with that portion of YCP's suicide prevention policy that required all inmates to be screened immediately following their admission, and prior to their classification and release into any particular section of the prison. (Rec. Doc. 44, Exh. P-12 at 5).

On December 24, 2003, because of Nurse Windon's December 23, 2003 referral (docs. 36, ¶ 7; 38, ¶ 7), and in accordance with YCP's policies and procedures (docs. 36, ¶ 10; 38, ¶ 10), Herman was seen by a so-called mental health nurse, Tamara Krzywulak ("Nurse Krzywulak"), also an LPN and an employee of PHS who worked at YCP. (Rec. Docs. 37, ¶ 8; 39, ¶ 8). During their meeting, Herman indicated that he was stable without medication and did not wish to take it, and he again denied being depressed or having suicidal thoughts. (Rec. Docs. 37, ¶ 9; 39, ¶ 9). As a result of her meeting with Herman, Nurse Krzywulak completed a form entitled "Referral for Psychological Services," wherein she assessed Herman as being oriented "x3" and calm. (Rec. Doc. 37, Exh. C).

During his meeting with Nurse Krzywulak, Herman also requested placement in the general population. (Rec. Docs. 37, ¶ 10; 39, ¶ 10). However, although Herman was nineteen (19) years of age, he looked younger, so Nurse Krzywulak "cleared" Herman to the juvenile housing area rather than the general population. (Rec. Docs. 37, ¶ 10; 39, ¶ 10). She also encouraged him to return for mental health services if necessary. (Rec. Docs. 36, ¶ 13; 36, ¶ 13). Thus, on December 24, 2003, following Nurse Krzywulak's so-called "clearing," Herman was reclassified to NE 1A, and placed in that portion of YCP. (Rec. Docs. 36, ¶ 26; 38, ¶ 26).

The following day, on December 25, 2003, Herman's aunt, Brenda Doucette ("Doucette"), and other family members visited Herman, and he did not appear to them to be depressed or at risk of hurting himself. (Rec. Docs. 37, ¶ 11; 39, ¶ 11). Specifically, Doucette testified that she did not ask Herman whether he was taking medications, but that she was "encouraged" by him. Doucette further testified that "Michael always had a habit of making me think he was going to do better, and I was encouraged because I thought he would." (Rec. Docs. 37, ¶ 12; 39, ¶ 12; 37, Exh. E at 28).

Four (4) days after his placement in NE 1A, on December 28, 2003, Herman met with his counselor,*fn3 Veersammay Carpen ("Counselor Carpen"), and reported that he did not have any problems in the North Block. Rather, "he said, that coming to prison is like taking a long vacation. He has nothing to worry about. He sleeps when he wants to and watch[es] tv when he wants to. He said, that he is doing good. He did not have any concerns or questions." (Rec. Docs. 36, ¶ 27; 36, Exh. 5; 38, ¶ 27). Moreover, neither Counselor Carpen, Warden Hogan, nor Corrections Officer Jorge Alvarez ("CO Alvarez") had noted anything that indicated that Herman may have been suicidal. (Rec. Docs. 37, ¶ 14; 39, ¶ 14).

Herman was again visited by his family on January 1, 2004. (Rec. Docs. 37, ¶ 13, 39, ¶ 13). Indeed, Herman's mother, Plaintiff herein, testified that looking back on it now, she can "absolutely not" recall any indication that Herman was suicidal when she saw him on said date. (Rec. Docs. 37, ¶ 13; 39, ¶ 13; 37, Exh. F at 75).

On January 5, 2004, another employee of PHS, Nurse Bev Hamrick ("Nurse Hamrick") conducted an initial physical examination of Herman. (Rec. Docs. 37, ¶ 15; 39, ¶ 15). She assessed Herman's medical status as alert and oriented "x3," but recorded a bi-polar history. (Rec. Docs. 37, ¶ 15; 39, ¶ 15). There was nothing else out of the ordinary concerning the physical examination. (Rec. Docs. 37, ¶ 15; 39, ¶ 15).

However, on January 6, 2004, CO Alvarez was summoned to the North Block because of an altercation between Herman and another inmate. (Rec. Docs. 37, ¶ 16; 39, ¶ 16). Herman admitted striking the other inmate with a bar of soap in a sock, and may have indicated that an altercation had also occurred between the two inmates the prior evening. (Rec. Docs. 36, ¶ 29; 37, ¶ 16; 39, ¶ 16). As a result of the altercation(s), disciplinary proceedings were initiated against both inmates for fighting, and Herman was sent to YCP's medical facility for evaluation of a minor injury. (Rec. Docs. 37, ¶ 16; 39, ¶ 16). Accordingly, Nurse Margie Spangler ("Nurse Spangler") examined ...

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