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Kelley v. Bradford County

March 23, 2010


The opinion of the court was delivered by: Judge Vanaskie


This action arises out of the tragic suicide of Alan C. Kelley ("Kelley") while he was incarcerated at the Bradford County Correctional Facility ("BCCF"). Plaintiff Theresa A. Kelley, individually and as administratrix of the estate of her late son, brings this civil rights action pursuant to 42 U.S.C. § 1983 and state tort law.*fn1 Before the Court is Defendant's motion for summary judgment. (Dkt. Entry 17.) For the reasons that follow, Defendants' motion will be granted.

I. Background

A. Facts

On Wednesday, September 7, 2005, Kelley was released on parole from the BCCF on the condition that he report to a substance abuse treatment center. On Friday, September 9, 2005, Kelley was apprehended for leaving the treatment center to which he had been paroled; he was immediately returned to BCCF.

Upon admission to BCCF, Kelley was evaluated by Portia Johnson, an employee of Northern Tier Counseling Services, which contracts with BCCF to perform mental health screening and counseling. Johnson conducted an "Initial Mental Health Screening," the purpose of which was to assess whether Kelley was a suicide risk or needed any follow-up mental health care. (See Portia Johnson Dep., Dkt. Entry 21-4, at 6.) Johnson has a Master's Degree in Psychology, ( 5), and has had in-service/on-the-job training to recognize suicide threats in inmates. (Id. at 8.) Johnson ultimately determined, despite past attempts at suicide and recurrent

suicidal ideation, that Kelley did not have the then-current intent to commit suicide.*fn2 (Id. at 19.) Although she did not believe that he was suicidal, Johnson referred Kelley to her colleague, Steven Wilmot, for further counseling. Specifically, she wrote Wilmot a note asking that he follow-up with Kelley. (Steven Wilmot Dep., Dkt. Entry 21-8 at 8.) Mr. Wilmot followed up with Kelley on Monday, September 12, 2005 -- three days after he was admitted to BCCF.

At the time of his follow-up, Steven Wilmot -- also an employee of Northern Tier Counseling Services with a Master's Degree in Counseling and Psychology, (id. at 5) -- understood that Kelley was upset about having to come back to BCCF after leaving the treatment center to which he had been paroled, and that Johnson wanted him to follow-up with Kelley to "make sure that he was okay." (Id. at 9.) Wilmot spent forty-five minutes interviewing Kelley. During that time Kelley did not mention anything that would lead Wilmot to believe that he was a suicide risk. (Id. at 15.) Wilmot, however, could not recall during his deposition whether he was aware of Kelley's prior suicide attempts and history of depression. (Id. at 12.)

In the end, neither Johnson nor Wilmot believed that Kelley was at risk of committing suicide. (Johnson Dep., Dkt. Entry 21-4 at 19; Wilmot Dep., Dkt. Entry 21-8 at 15.) If they had determined that he was a suicide risk, Kelley would have been placed on suicide watch. In the past, whenever either Johnson or Wilmot placed someone on suicide watch, their orders were followed by prison personnel. (Johnson Dep., Dkt. Entry 21-4 at 32; Wilmot Dep., Dkt. Entry 21-8 at 20.) Despite being prescribed an antidepressant -- fluoxetine (Prozac) -- and an antipsychotic -- risperdal -- the record is ambiguous about whether Kelley received any medication while at BCCF.*fn3

Ultimately, it was determined that Kelley should be placed in the general population, and no suicide or special watch was directed by any physician or mental health professional. On Thursday, September 15, 2005, at approximately 1:00 p.m., Kelley was moved from the classification unit to cell B-10, which is a general population cell. At some point, between 11:30 p.m. on September 15, 2005 and 2:00 a.m. on September 16, 2005, Kelley committed suicide. His body was discovered by Defendant Kapichok at 7:08 a.m. on September 16, 2005.

According to Defendant Kapichok's deposition, on the night of September 15, 2005, fellow corrections officer Jessica Saxon counted Kelley at 11:30 p.m., and observed that he was sitting on his bed. (William Kapichok Dep., Dkt. Entry 21-7 at 7-8.) During his rounds that night, Kapichok observed Kelley laying on the floor of his cell. (Id. at 8.) It was fairly common for inmates to sleep on the floor because it was cooler there than on their bunks. (Id.) This practice was going on for a long time, but since Kelley's suicide, BCCF no longer allows anyone to sleep on the floor unless they have a medical clearance. (Id. at 17; Losinger Dep., Dkt. Entry 21-5 at 34.) Kapichok's last count was at 7:08 a.m. on September 16, 2005. (Id., at 21.) During this count, Kapichok noticed that something did not look right with the way Kelley was positioned on the floor. At his deposition, Kapichok testified:

I counted the last three of four cells there and I turned around and I was walking back down the tier and I looked in from a different direction and something didn't look right and I put my head up to the door and I said are you all right in there. I shook the door and no response so I called central and told them to open the door and when I took the step in, I could see what he did. (Id., at 13.) When asked whether Kelley was in basically the same position that Kapichok had seen him all evening, he responded, "[y]eah, that I can recall." (Id.)

The cell that Kelley was housed in had only a 4" by 20" window in the door. (Losinger Dep., Dkt. Entry 21-5 at 31.) The lights in the cells are turned off at 11:30 p.m. each night, which means that the only light comes from the hallway. (Id. at 32-33.) When a corrections officer performs his rounds, "he would take his flashlight and shine it through that four inch by [twenty] inch window and look and see, check for an inmate." (Id. at 31.)

Defendant BCCF has a written suicide prevention policy. (See BCCF Suicide Precautions Policy, Dkt. Entry 21-4 at 37-39.) This policy was in place at the time of Kelley's death. BCCF also conducts suicide prevention training twice per year. (Connie Morgenstern Dep., Dkt. Entry 21-3 at 20; Kevin Losinger Dep., Dkt. Entry 21-5 at 13-14.)

B. Procedural History

Plaintiff filed the complaint on August 21, 2007, (Dkt. Entry 1), asserting that Defendants acted with intentional malice and reckless indifference by detaining Kelley rather than taking him for appropriate mental health/psychiatric care, and that this reckless indifference violated Kelley's rights under the Fifth and Fourteenth Amendments. Plaintiff further asserts that Defendant Bradford County is liable because it failed to adequately train its agents concerning suicide prevention. Plaintiff contends that Defendants' conduct violated Kelley's Eighth Amendment right to be free from cruel and unusual punishment, and to receive proper medical care and attention while confined under state authority. Finally, Plaintiff brings state law tort claims sounding in wrongful death and a survival action.

On March 27, 2009, Defendants filed an Amended Motion for Summary Judgment.*fn4

(Dkt. Entry 17.) Defendants filed their brief in support on April 5, 2009. (Dkt. Entry 18.) After receiving additional time with leave of court, Plaintiff filed an opposing brief and other documents on May 11, 2009. (Dkt. Entries 21-22.) Defendants filed their reply brief on May 21, 2009. (Dkt. Entry 23.) The motion is ripe for disposition.

II. Standard of Review

Summary judgment is proper when "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is an evidentiary basis sufficient to allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).

The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Upon such a showing, the burden then shifts to the non-moving party to present "specific facts showing the existence of a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party may not simply sit back and rest on the allegations of its complaint; instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324 (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of ...

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