The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendants MHM Correctional Services ("MHM") and Dr. Eugene Polmueller's renewed motion to dismiss, (Doc. 81), Plaintiff's second amended complaint, (Doc. 80), pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendants' motion will be granted in part and denied in part.
Plaintiff, Evelyn Finney, is the mother and Administratrix of the estate of Clifford Finney.*fn2 (Compl. ¶ 1.) Finney was a prisoner housed at all times relevant to this complaint at SCI-Rockview and SCI-Smithfield.*fn3 (Id. ¶¶ 12, 13.)
Defendants who brought this motion are MHM and Dr. Eugene Polmueller. MHM is a private company providing mental health services to SCI-Smithfield. Dr. Polmueller is the director of psychiatry at SCI-Smithfield, and is employed by MHM. (Id. ¶ 5.)
In June of 2007, Finney was threatening to harm himself and was placed in the Psychiatric Observation Cell ("POC") from June 14, 2007, to June 19, 2007. (Id. ¶ 41.) On June 30, 2007, Finney again threatened to harm himself and was placed back in the POC until July 6, 2007. (Id. ¶ 42.) On July 6, 2007, Finney was involuntarily committed to the Mental Health Unit ("MHU") at Rockview. (Id. ¶ 43.) He was kept there until July 25, 2007, during which time he was considered severally mentally disabled. (Id.) Finney was again in the POC from July 31, 2007, to August 20, 2007, after harming himself with a razor. (Id. ¶ 44.) The next month, from September 5, 2007, through September 11, 2007, Finney was in the POC after attempting to hang himself. (Id. ¶ 45.) In October, Finney was hearing voices which told him to hang himself and was admitted to the POC from October 2, 2007, to October 7, 2007. (Id. ¶ 46.)
On November 2, Finney's mother called a counselor and told her she had received a note from her son stating "If I'm found dead the officers did it." (Id. ¶ 47.) This same month Finney was placed back in the POC from November 21, 2007, to November 28, 2007. (Id. ¶ 48.) He was placed back in the POC because he planned on using his bed sheets to commit suicide and because he refused to take his psychiatric medications. In addition, he was still occasionally hearing voices. (Id.)
On November 28, 2007, Finney was released to the Restricted Housing Unit ("RHU") despite telling the releasing psychiatrist that he was not ready to go and that if he was released he would hurt a correctional officer. (Id. ¶ 49.) This psychiatrist believed Finney was being manipulative. (Id.) This same day, he was placed on fifteen minute observation in the RHU. On December 1, 2007, he was taken off fifteen minute observation by the guards but was not seen by a psychiatrist. (Id.)
On December 2, 2007, at approximately 2 p.m., Finney was found dead in his cell after hanging himself with a bed sheet. (Id. ¶¶ 15, 50.) A search of his cell uncovered nine pills-- eight psychiatric medications and one Benadryl. (Id. ¶ 50.)
On September 10, 2009, Plaintiff filed the original complaint. (Doc. 1.) Plaintiff amended the complaint and re-filed it on September 16, 2009. (Doc. 6.) On December 4, 2009, Defendants MHM and Dr. Eugene Polmueller filed a motion to dismiss Plaintiff's amended complaint.*fn4 (Doc. 25.) However, no supporting brief was filed and on December 29, 2009, the court issued a rule to show cause why the motion should not be deemed withdrawn. (Doc. 30.) On January 12, 2010, Defendants responded to the rule to show cause and attached a proposed brief, (Doc. 40), which the court accepted on January 28, 2010, (Doc. 46).
On February 2, 2010, Plaintiff filed a brief in opposition to Defendants' motion to dismiss. (Doc. 48.) On February 19, 2010, Defendants' filed their reply brief. (Doc. 56.) At this time, the motion was ripe for disposition. However, on April 30, 2010, Plaintiff filed a motion requesting permission to file a second amended complaint and brief in support. (Docs. 70, 71.) Defendants filed a brief in opposition on May 26, 2010. (Doc. 78.) On June 29, 2010, the court issued an order granted Plaintiff leave to file a second amended complaint. (Doc. 79.) Additionally, the court allowed Defendants to either file a new motion to dismiss, or proceed on the motion they filed on December 4, 2009.*fn5 (Id.) On July 9, 2010, Defendants filed a motion titled ...