The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court are two motions for summary judgment. (Docs. 60 & 65.) The first motion, (Doc. 60), was filed by Defendants Greenleaf, Palakovich, Smeal, Weaver, Nasrallah and Kuhns (the "Commonwealth Defendants"). The second motion, (Doc. 65), was filed by Defendants Mental Health Management Correctional Services, Inc. ("MHM") and Doctor Franz Bauer (the "Medical Defendants"). For the reason discussed below, the Medical Defendants' motion will be granted and the Commonwealth Defendants' motion will be granted in part and denied in part.
Plaintiff is the father of Decedent Joseph Kapa, Jr., and brings this lawsuit against the above-named Defendants as the administrator of his estate.
John Palakovich was the Superintendent of the State Correctional Institution at Smithfield ("SCI-Smithfield"), where Kapa was housed, from August 2003 to December 2007. (Commonwealth Defs.' Statement of Material Facts ("SMF") ¶ 1.) George Weaver was the Health Care Administrator at SCI-Smithfield from 1993 to November 2008. (Id. ¶¶ 3,6.) Weaver was the liaison between the DOC and staff members contracted through the medical department.
Wade Kuhns was a Sergeant at SCI-Smithfield in 2007. (Id. ¶ 37.) Paul Nasrallah was a corrections officer assigned to the Restricted Housing Unit ("RHU") at SCI-Smithfield in 2007. (Id. ¶ 29.) Craig Greenleaf was a corrections officer assigned to various blocks throughout SCI-Smithfield in 2007. (Id. ¶ 43.)
MHM contracts with the Pennsylvania Department of corrections to provide psychiatric and psychological care to inmates. Dr. Franz Bauer was a psychiatrist employed by MHM from 2003 to March 2007.
1. Kapa's Mental Health History
Joseph Kapa, Jr. entered the Pennsylvania Department of Corrections on September 28, 1992. (Medical Defs.' SMF ¶ 1.) At that time, Kapa exhibited no depression or psychotic symptoms, but began receiving treatment for restlessness and anxiety. (Id. ¶ 2.) Kapa continued to receive treatment off and on for various diagnoses while incarcerated. He was diagnosed throughout his prison term with, inter alia, borderline personality disorder with antisocial traits, depression with psychosis, conversion disorder, impulse control disorder, substance abuse in forced remission, and bipolar disorder. Prison psychiatrists placed Kapa in a psychiatric observation cell ("POC") numerous times during his incarceration for medical issues and for threats of self harm or harm to others, (Id. ¶¶ 4, 13, 17, 25, 28, 32, 39, 52, 56, 64, 73, 84) including an apparent attempted suicide by hanging in December 2002 (Id. ¶ 33).
Kapa was seen by various psychiatric staff members during his incarceration, but the only medical staff who is a party to this case is Dr. Bauer, whose treatment of Kapa will be discussed at greater length below. In the weeks leading up to his death Kapa was in and out of the POC. Specifically, on June 14, 2007, Kapa was admitted to the POC, where doctors disagreed over the diagnosis of his mental issues. (Id. ¶ 105.) While in the POC at that time, Kapa made comments to medical staff of his desire to end his life by hanging or cutting himself. (Id. ¶ 106.) He later denied having these thoughts of self harm. Kapa was released from the POC on June 20, 2007, but returned on June 21, 2007, when he threatened to hang himself if left in his cell. Once in the POC, Kapa again denied having suicidal thoughts. On June 22, upon being cleared by the Program Review Committee ("PRC"), Kapa left the POC and returned to the RHU. At this time, Kapa was being prescribed Elavil, Dilantin, Valproic Acid, Prozac and Klonopin.*fn3 (Id. ¶ 105.)
2. The Day of Kapa's Death
Kapa was released from the POC to the H Block RHU on June 22, 2007.
(Commonwealth Defs.' SMF ¶67.) Officers in the RHU observed Kapa every
fifteen minutes from June 22, 2007, through June 24, 2007.*fn4
(Id. ¶ 68.) On June 24, Kapa complained to officers on the 2
p.m. to 10 p.m. shift about his medications. (Id. ¶ 70.)
On June 25, the day of Kapa's suicide, Defendants Kuhns, Nasrallah, and Greenleaf worked the 6 a.m. to 2 p.m. shift in the H Block RHU. (Id. ¶¶ 37, 40, 41.) On that date, an inmate, Thomas Smith, observed Kapa arguing with a female nurse about his medication. (Pl.'s Ex. 38, at 14:22.) Smith observed Defendant Kuhns, who was escorting the nurse, say to Kapa, "well, if you feel that way, then go ahead and take your life." (Id. at 15:2-3.) Lamont Bullock, another inmate on the H Block RHU on June 25, 2007, observed Kapa say to Defendant Greenleaf that Kapa was going to kill himself, to which Greenleaf responded "go ahead; that he didn't give a F." (Commonwealth Defs.' Ex. J, at 17:25.) Defendant Greenleaf denied this conversation took place. (Pl.'s Ex. 22, Greenleaf Depo., at 13:9-14.) Bullock also stated that he (Bullock) told Defendant Greenleaf that Kapa was going to harm or kill himself, and that the officers should "do something about that." (Pl.'s Ex. 4, at 11-12.) That same day, Bullock claims he heard Kapa cry out to Defendant Kuhns twice. Although Bullock does not recall what Kapa cried out, he observed Kuhns ignore Kapa's cries and walk away without saying anything. (Commonwealth Defs.' Ex. J, at 18:25 & 19:1-2.) Defendant Kuhns refutes this fact claiming Kapa never called out to him. (Pl.'s Ex. Depo., at 46:2-7.)
On June 25, 2007, no fifteen minute observations were conducted on Kapa between 1 p.m. and 2 p.m. (Doc. 81, Pl.'s SMF ¶ 118.) When the 2 p.m. to 10 p.m. shift took over on the H Block RHU that day, Defendant Kuhns, the sergeant of the 6 a.m. to 2 p.m. shift, did not report anything as being out of the ordinary to the incoming officers. (Commonwealth Defs.' SMF ¶ 81.) Plaintiff refutes the veracity of this statement. (Doc. 81, Pl.'s SMF ¶81.) Fifteen minute checks on Kapa resumed at 2 p.m. According to the observation forms, Kapa lay on his bunk during the 2, 2:15, and 2:30 p.m. observations, and sat at his desk eating an apple at 2:45 p.m. (Pl.'s Ex. 8, Psychiatric Observation Monitoring Form, June 25, 2007.) At approximately 3 p.m., officers found Kapa hanging from the top bunk rail in his cell by a sheet tied into a noose. (Commonwealth Defs.' SMF ¶ 91.)
3. Roles of Supervisory Defendants Palakovich and Weaver in Kapa's Care
Defendant Palakovich was the Superintendent of SCI-Smithfield from August 2003 through December 2007. George Weaver was the Health Care Administrator and was the liason between the DOC and contracted staff in the medical department. Plaintiff admits that Palakovich did not make medical decisions regarding inmates, but disputes the same for Weaver because it was Weaver's job to review inmate grievances in connection with medical decisions and/or medication. (Commonwealth Defs.' SMF ¶ 7; Pl.'s SMF ¶ 7.) Defendants agree that all inmate grievances regarding the medical department were reviewed by Weaver, but the parties dispute when Weaver actually "used" all the means he had available to investigate grievances, or merely "had access to" means to investigate grievances. (Commonwealth Defs.' SMF ¶ 8; Pl.'s SMF ¶ 8.) The court finds this to not be a material fact seeing as Plaintiff points to nothing in the record in this case to indicate Weaver "had access to" but did not "use" the resources available to him to investigate grievances he received, specifically grievances from Kapa.
On May 5, 2007, Kapa sent a grievance to Palakovich complaining he had been assaulted by guards while housed in the Allegheny County Prison and that staff were not responding to his inmate request slips for medical and psychiatric help due to this assault.*fn5 (Doc. 81, Pl.'s SMF ¶ 128.)*fn6 Palakovich responded to Kapa's request by stating "[y]ou have been seen by the medical and psychological staff and they will address yoru [sic] medical issues. Appeal dismissed." (Id. ¶ 129.)
On May 7, 2007, Kapa again wrote to Palakovich stating "I am still suffering and urinating blood. Along with other problems as well . . . The officers in EB have been trying to get me to see psych and medical for almost two weeks and got no response. They the officers said there has been a major change in my behavior since my return and no stability in the psyc [sic] department."*fn7 (Id. ¶ 130.)
Palakovich responded on May 8, 2007, but did not address Kapa's complaint regarding his failure to be seen by the psychiatric department. (Id. ¶ 131.)
On May 12, 2007, Kapa wrote a grievance to Palakovich stating that he should not have been sent back to SCI-Smithfield because he had been assaulted in the Allegheny County Jail, and thus, should have remained at that facility. (Id. ¶ 132.) Palakovich responded on May 15, 2007, claiming that SCI-Smithfield could refuse to accept Kapa back from Allegheny County because Kapa was serving a state imposed sentence. (Id. ¶ 133.)
On June 23, 2007, Kapa wrote to Palakovich one last time stating that no one from the State Police had contacted him regarding his Allegheny County Jail assault allegations and asking that a recent misconduct he had received be reduced. (Id. ¶ 136.) Palakovich responded on June 26, 2007, that Kapa needed to contact the Allegheny County District Attorney's office regarding his assault, and that his misconduct had been reduced to a Class 2. (Pl.'s Ex. 13, Allegheny Grievance Packet, at 24.)
As for Defendant Weaver, Kapa wrote to him on April 25, 2007, complaining about physical injuries as a result of the Allegheny County Jail assault. (Pl.'s SMF ¶ 139.) Weaver responded on May 9, 2007, stating that although he found "it hard to believe that Allegheny County staff assaulted you on purpose," it was not an issue because Kapa's medical needs were being taken care of by staff at SCI-Smithfield. (Pl.'s Ex. 13, Allegheny Grievance Packet, at 4.) In addition, Weaver informed Kapa that if it was found that there was merit to Kapa's assault claims, the DOC would take corrective action. (Id.) Weaver also told Kapa that the safest place for him was at Smithfield and that Weaver was "glad [Kapa] was back." (Id.)
On April 24, 2007, Kapa again wrote Weaver stating that his mind was racing, and that he was having trouble because there was no permanent psychiatrist currently in place at SCI-Smithfield and his medication was therefore being frequently changed. (Pl.'s SMF ¶ 141.) On May 9, 2007, Weaver responded with the following, "I respect your concern to have a long term psychiatrist to provide you care. However, psychiatrist care may be provided by using several physicians. As I review your medical record I find that you have seen the psychiatrist four times since returning to Smithfield on 4/16. Therefore your need is fulfilled. Your grievance is dismissed without ruling on merit, for you are asking for a personal preference - having one long term physician to manage your medication. We can not always provide this personal preference." (Pl.'s Ex. 13, Allegheny Grievance Packet, at 2.)
On May 9, 2007, Kapa wrote to Weaver regarding his medication "my meds keep getting changed and switched which has me on a rolorcoaster [sic] of emotions. No permenent [sic] phsyc [sic] etc . . . no stabilility [sic]. I'm urinating blood on a daily basis along with back, rib, neck, emotional and mental sufferring [sic]. My block COs tried for almost two wks [sic] to have me seen to know [sic] avail. They said theve [sic] seen a major decline in my behavior since my return etc . . ." (Pl.'s Ex. 13, Allegheny Grievance Packet, at 22.) In his response dated May 21, 2007, Weaver addressed Kapa's physical medical concerns and, in addition, regarding Plaintiff's mental health, Weaver wrote, "Your psychotropic medications have been changed several times. Several different psychiatrists have seen you. Be advised that several psychiatrists have provided Smithfield with service in the last few months. Since the ordering of medications is under the sole responsibility of the doctors, you need to tell them your desire to stay with the same medications. I cannot change your medications, but I do agree with your point of view. I will mention your concern to our current doctor. Untimely [sic], you need to talk with the doctor on your visits and tell him/her of your concern." (Pl.'s Ex. 13, Allegheny Grievance Packet, at 23.)
4. Dr. Bauer's Treatment of Kapa
Kapa was first seen by Dr. Franz Bauer on November 21, 2003. (Medical Defs.' SMF ¶ 62.) At that time Kapa was under a lot of personal stress and was threatening harm if he were housed with another inmate. Accordingly, Dr. Bauer recommended a temporary single-cell order and diagnosed Kapa as having impulse control disorder. (Id.) Dr. Bauer again saw Kapa on December 22, 2003, during which time it was noted that Kapa seemed to be having impulse control issues and wanted to leave without waiting for prescriptions to be filled. (Id. ¶ 63.) On January 9, 2004, Kapa threatened self-harm and was admitted to the POC by Dr. Bauer. (Id. ¶ 64.) Plaintiff remained in the POC for five days, and upon discharge Dr. Bauer noted "[Patient] was kept safe. He will return to his block. He will again get so angry- impulsive- not safe for himself [and] others . . . . If it happens again, which it will, we know more how to manage the storm." (Pl.'s Ex. 30, Inpatient Unit Summary of Dr. Bauer, at 2.) On January 14, 2004, Dr. Bauer again saw Kapa. At this meeting Kapa stated, "I play no game - I have not eaten in the chow hall since April 16, '03; I'm going to cut up under my arms, side of my neck, the back of my legs. I don't have to eat." (Medical Defs.' SMF ¶ 68.) In response to this Dr. Bauer wrote, "[w]e are not playing games, but we are watching him doing his thing - to get out of POC . . . He wants to maintain a stance of control!" (Id.) Two days later, on January 14, 2004, Kapa was eating again and stating that he wished to leave the POC. (Id. ¶ 69.) In addition, Kapa received a dismissal of previous misconduct charges and was now stating he was no longer suicidal. (Id.) On this date, Dr. Bauer also saw Kapa and noted "[d]ifferent attitude today, he started eating, wants to return to the general population." (Id. ¶ 70.) Kapa was not threatening self-harm and he was released from the POC.
When Dr. Bauer saw Kapa again on January 30, 2004, he was mildly manic but was not expressing suicidal thoughts. Dr. Bauer made a plan to see Kapa again in thirty days. (Id. ¶ 71.) This follow-up was conducted on February 25, 2004, during which time Kapa refused medication but had no suicidal ideation. (Id. ¶ 72.)
On March 18, 2004, Kapa was again admitted to the POC after cutting both of his arms saying he tried to kill himself but the razor was too dull. He claimed that the staff was "having fun at his expense." (Id. ¶ 73.) On March 19, 2004, Dr. Bauer saw Kapa noting his mood was defiant and demanding and that his emotions were not in control. Kapa also told Dr. Bauer "I wish I had finished it." (Id. ¶ 77.) After calming down in the POC, he claimed he was no longer self destructive and was released on March 22, 2004. It was the opinion of Dr. Bauer that Kapa enjoyed the attention he received when acting out. In addition, he believed Kapa was "attention-seeking" and chose not to order medication for Kapa because he did not want Kapa to think he was a "star performer." (Id. ¶ 79.)
Dr. Bauer saw Kapa again on May 3, 2004. Kapa did not want medication and Dr. Bauer wrote as his future plan to "help [Kapa] get out and stay there!" (Id. ¶ 80.) Dr. Bauer again visited Kapa on June 21, 2004, and noted that Kapa was "full of vigor" and looking for a job upon his release. Dr. Bauer made a plan to see Kapa again in sixty days. (Id. ¶ 81.) On August 13, 2004, Dr. Bauer followed up with Kapa again. Kapa said he still did not want medication, and Dr. Bauer agreed to see him in ninety days. (Id. ¶ 82.) Dr. Bauer saw Kapa again on November 2, 2004, and he claimed to have a positive attitude towards his upcoming release. Dr. Bauer said he would see him again in ninety days. (Id. ¶ 83.)
On December 27, 2004, Dr. Bauer admitted Kapa to the POC due to impulse control disorder and conflicts with other inmates in his block. When Kapa originally arrived at the POC he did so voluntarily, asking for a transfer to another institution, but not explaining his reasons. He denied suicidal ideation. Kapa had skipped eight meals, but eventually agreed to drink a nutritional supplement so he could be released from the POC. (Id. ¶ 86.) Dr. Bauer noted Kapa was "habitually controlling what he [could] get away with and more . . . we cooperated with him to ...