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Wargo v. Schuylkill County

November 14, 2008

JEAN WARGO, PLAINTIFF
v.
SCHUYLKILL COUNTY; GENE BERDANIER, ACTING WARDEN, SCHUYLKILL COUNTY PRISON; FRANK CORI, SCHUYLKILL COUNTY DISTRICT ATTORNEY; WILLIAM BALDWIN, PRESIDENT JUDGE SCHUYLKILL COUNTY; MICHAEL KRYJAKP; LT. M. FLANNERY; AND LT. RIZZARDI, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court are defendants' motions for summary judgment in this case. Having been fully briefed and argued, the matter is ripe for disposition. Background

This case arises from the death of Tristan Wargo. Wargo committed suicide while incarcerated in the Schuylkill County Prison ("SCP") on November 6, 2004. (Corrected Statement of Material Facts in Support of Motion for Summary Judgment on Behalf of Schuylkill County Defendants (Doc. 55) (hereinafter "County Defendants' Statement") at ¶ 1).

The plaintiff in this case is Jean Wargo, who was Tristan Wargo's grandmother and is the administratrix of his estate. (Id. at ¶ 4(a)). Jean Wargo was not aware that her grandson had previously attempted suicide. (Id. at ¶ 4(c)). Tristan Wargo never spoke to his grandmother about any emotional problems. (Id.). Tristan spoke to Jean two or three times while he was in prison. (Id. at ¶ 4(d)). He asked her to have his father visit him in prison. (Id.). Two days before he killed himself, Tristan called to ask his grandmother to put up bail for him. (Id.). She refused. (Id.). Tristan did not reveal to his grandmother that he was having any problems in prison, but simply asked her to help him get out. (Id.).

The defendants who remain in the case are: Schuylkill County; Gene Berdanier, acting warden of the prison since December 2004; Frank Cori, former chairman of the Schuykill County Prison Board ("Board"); Hon. William E. Baldwin, President Judge of Schuylkill County and Prison Board member; Michael Kryjak, former prison counselor, who is now deceased; Lt. Michael Flannery, a prison supervisor at the time of the incident; Lt. Rizzardi, a prison officer who placed Tristan in the cell where he died and was responsible for checking him every hour before he died. (Id. at ¶ 5(a-g)).

Tristan Wargo was in jail because on October 28, 2004 he had used a shotgun to rob the The Standard Drugstore in McAdoo, Pennsylvania. (Id. at ¶ 4(d)). He stole around $7,000. (Id.). Plaintiff points out that Tristan Wargo started using Oxycontin to treat a back injury. (Plaintiff's Counterstatement of Material Facts (Doc. 62-2) (hereinafter "Plaintiff's Statement" at ¶ 1-2). Once cut off from his prescribed medication, Wargo began to steal from the pharmacy that had previously filled his prescription. (Id. at ¶ 3). Arrest on those charges landed Tristan Wargo in the Schuylkill County Prison. (Id. at ¶ 4). He had never been arrested before the events that led to his death. (Id. at ¶ 5).

After his arrest on October 28, 2004, Police Chief John Petrilla transported Wargo to court, where the judge set bail at $50,000 straight cash. (Id. at ¶ 8). Petrilla then took Wargo to the SCP. (Id.). During this entire period, Wargo expressed remorse for his actions, but did not make any threats to harm himself or express any suicidal thoughts. (Id.).

Tristan Wargo arrived at the prison around 7:45 p.m. (Plaintiff's Statement at ¶ 7). Correctional Officers Wowak and Murton booked him when he arrived. (County Defendant's Statement at ¶ 9). The officers did not notice any risks of suicidal behavior, but denied that he had been hospitalized recently or seen by any psychiatric doctor. (Id. at ¶¶ 10-11). Wargo disclosed heart and back problems to the officers. (Id. at ¶ 12). He reported that he was prescribed medication for these problems. (Id. at ¶ 13). The officers noticed that Wargo appeared to be experiencing withdrawal symptoms. (Id.). Once these conditions were noticed, officers placed Wargo in a medical holding cell and ordered a check every hour. (Id. at ¶ 15). Once informed by plaintiff of his likely withdrawal from Oxycontin, Lt. Rizzardi ordered Wargo placed in a medical holding cell and ordered one-hour checks. (Id.). Plaintiff contends that these checks were not performed as directed, but were limited only to "cursory hourly checks." (Plaintiff's Statement at ¶ 25).

Wargo underwent a medical evaluation at the prison on October 28, 2004. (Defendant's Statement at ¶ 16). He reported that he had an allergy to the antidepressant Wellbutrin. (Id.). He listed his current medications as Oxycontin, Neurontin, Skelaxin and Spirazide. (Id.). Wargo told doctors that he had taken Oxycontin for 2 1/2 years, that he had a hole in his heart, arrythmia, congenital heart disease and 5 ruptured discs in his back. (Id.). He reported that he only took Oxycontin per prescription. (Id.). A physical exam revealed plaintiff was within normal limits. (Id.).

Early in the morning on October 30, 2004, Wargo told correctional staff that he had taken 10-12 Oxycontin tablets that he had smuggled into the jail in his rectum. (Id. at ¶ 17). Though Lt. Flannery went to the cell to examine Wargo and found nothing visibly wrong with him, he nevertheless ordered that Wargo be placed in a holding cell, kept under observation and dressed in a special clothing (a "gown") designed to minimize the risk of suicide. (Id. at ¶ 18). Flannery also ordered checks every fifteen minutes. (Id.). Wargo never told any prison officials that he had taken the drugs in an attempt to commit suicide. (Statement of Undisputed Facts in Support of Motion for Summary Judgment on Behalf of Defendant Michael Kryjak (Doc. 58-3) (hereinafter "Kryjak Statement") at ¶ 17). The prison counselor who saw Wargo after these incidents, Defendant Michael Kryjak, considered Wargo's behavior typical of a drug addict and not evidence of an intent to commit suicide. (Id. at ¶ 20).

Correctional Officers reported two incidents involving Tristan Wargo over the next few days. On October 30, 2004, an officer filed an incident report relating that Wargo had removed the thread from his mattress. (Defendants' Statement at ¶ 19). The officer removed the thread from the inmate, as well as the mattress. (Id.). Lt. Flannery maintained the order that plaintiff wear a gown and be subjected to fifteen-minute checks after this incident. (Id.). On October 31, 2004, another correctional officer filed a report that indicated Wargo had complained that something was in his eye. (Id. at ¶ 21). The officer noted that a staple appeared to be sticking out of Wargo's eye. (Id.). Lt. Flannery investigated, discovered the staple, and pulled it out. (Id.). The staple apparently served to keep open a piercing in Wargo's eyebrow. (Id.). Officers reported no other incidents involving Wargo's behavior. (Id. at ¶ 24). Lt. Flannery testified that he had never placed Wargo on suicide watch and did not consider the reported incidents evidence of Wargo's desire to harm himself. (Id. at ¶ 22). Plaintiff contends that the level of observation and restriction ordered by Flannery are the equivalent of a suicide watch. (Plaintiff's Statement at ¶ 14).

Defendant Michael Kryjak, a prison counselor, met with Tristan Wargo on November 1, 2004.*fn1 (County Defendants' Statement at ¶ 23). Kryjak reported that Wargo had not expressed any desire to commit suicide. (Id.). No other prison personnel reported that Wargo had expressed any suicidal thoughts. (Kryjak's Statement at ¶ 29). He also testified that he was not aware of plaintiff's destruction of his mattress or other "incidents" while incarcerated. (Id. at ¶¶ 38, 43-44). Nevertheless, Kryjak recommended that Wargo's behavior while in jail and his obvious "issues" with prescription drug use required that observation of him be maintained. (Defendants' Statement at ¶ 23). Kryjak testified at his deposition that he had other contact with Wargo, periodically visiting him at his cell and speaking with him. (Kryjak's Statement at ¶ 23). He recommended observation of Wargo because Wargo was not complying with guard's orders, was a drug addict, had smuggled drugs into the jail, and had reported that he spit up dark blood. (Id. at ¶ 26).

Defendants increased Wargo's privileges during his days in the prison as his behavior improved. (Defendants' Statement at ¶ 24). The prison provided Wargo with a uniform on November 3, 2004. On November 4, 2004, the prison ordered that checks of Wargo be reduced to every 30 minutes. (Id.). The prison also gave him a blanket on that day. (Id.). The next day, the prison allowed Wargo to eat his food off a tray and use plastic utensils. (Id.).

Wargo met again with Kryjak on November 5, 2004. (Id. at ¶ 25). Kryjak reported that Wargo had not mentioned any psychiatric history, but instead complained about back problems. (Id.). This back injury led Wargo to begin abusing prescription pain medication. (Id.). After the conversation, Kryjak recommended that Wargo be placed in the general population. (Id.). Because of overcrowding, Wargo agreed that he should be placed in "E-block." (Id.). In, E-block, prisoner are isolated in their cells 23 hours a day and guards cannot see into the cells on the Block. (Plaintiff's Statement at ¶ 34).

The prison transferred Wargo to E-Block and placed him in a single cell on November 5, 2004. (Defendants' Statement at ¶ 26). The next day, Correctional Officer Stephen Bloschichak performed a check at 12:25 p.m. (Id. at ¶ 27). Bloschichak recalls that at the time of the check he saw Wargo standing in his cell, either next to the desk or the top bunk. (Id.). Lt. Rizzardi, making rounds to deliver medication, discovered Wargo hanging from a sheet in his cell at 12:35 p.m. (Id. at ¶ 28). Rizzardi radioed for assistance from other guards. (Id. at 29). He ran into the cell and tried to hold Wargo up to reduce the pressure on his neck. (Id.). Wargo seemed still to be breathing. (Id.). Within 15 seconds, another correctional officer came into the cell and helped cut Wargo down. (Id.). Wargo and Rizzardi combined to give Wargo CPR until emergency medical technicians arrived at the cell. (Id.). The EMTs continued to provide CPR until they left the prison with Wargo at 2:58. (Id. at ¶ 30). They transferred Wargo to Good Samaratin Regional Medical Center, where he was pronounced dead at 3:07 p.m. (Id. at ¶ 31). An autopsy performed the next day declared suicide as the cause of death. (Id. at ¶ 32). Investigators found a suicide note in Tristan Wargo's cell, which stated that "I have passed up the opportunity to kill myself too many times but I'm not going to do it this time. Suicide was always the plan... I have been trying to kill myself since I got into this place but now I have a REAL way to do it." (Plaintiff's Statement at ¶ 38).

Plaintiff Jean Wargo filed a complaint in this court on November 2, 2006 (Doc. 1). The complaint raises four counts. Count I, brought pursuant to 42 U.S.C. § 1983, alleges deliberate indifference to Wargo's serious medical needs in violation of the Fourth and Fourteenth Amendments. The count contends that defendants, despite knowledge of Wargo's past, drug addiction problems, and attempts to harm himself in prison, did nothing to attempt to prevent him from taking his own life. Count II, also brought pursuant to 42 U.S.C. § 1983, alleges a violation of plaintiff's First and Fourteenth Amendment rights through the pattern, practice and policy of the County and members of the prison board. Count III, brought pursuant to the Wrongful Death Act (presumably under Pennsylvania law), alleges damages for the plaintiff related to that death. Count IV seeks damages under the Pennsylvania Survival Act.

The parties engaged in discovery. They eventually agreed to dismiss certain of the original defendants. At the close of discovery, the remaining defendants filed motions for summary judgment (Docs. 52, 58). The parties then briefed the issues, bringing the case to its present posture.

Jurisdiction

As plaintiff brings her claims pursuant to 42 U.S.C. § 1983, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States."). The court has supplemental jurisdiction over plaintiff's state-law claim pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the ...


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