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Palakovic v. Wetzel

United States Court of Appeals, Third Circuit

April 14, 2017

RENEE PALAKOVIC, as Administrator of the Estate of Brandon Palakovic; DARIAN PALAKOVIC, as Administrator of the Estate of Brandon Palakovic, Appellants

          Argued January 12, 2017

         On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 3-14-cv-00145 District Judge: Honorable Kim R. Gibson

          Bret Grote [ARGUED]Abolitionist Law Center, Michael J. Healey Healey & Hornack, Counsel for Appellants.

          Howard G. Hopkirk [ARGUED] Office of Attorney General of Pennsylvania, Counsel for Corrections Officials Appellees

          Alan S. Baum Cassidy L. Neal [ARGUED] Matis Baum & O'Connor, Counsel for Appellees Dr. Daleep Rathore, Dr. Carol Eidsvoog, and MHM, Inc.

          Witold J. Walczak American Civil Liberties Union, Counsel for Amicus Appellants

          Before: SMITH, Chief Judge, JORDAN, and SHWARTZ, Circuit Judges.


          SMITH, Chief Judge.

         Brandon Palakovic, a mentally ill young man who was imprisoned at the State Correctional Institution at Cresson, Pennsylvania (SCI Cresson), committed suicide after repeatedly being placed in solitary confinement. His parents, Renee and Darian Palakovic, brought this civil rights action after their son's death. The District Court dismissed the family's Eighth Amendment claims against prison officials and medical personnel for failure to state a claim upon which relief can be granted. We write today to clarify and elaborate upon the legal principles that apply to Eighth Amendment claims arising out of prison suicides. For the reasons that follow, we will vacate the District Court's dismissals.


         The following allegations appear in the amended complaint.[1] Brandon Palakovic[2] was convicted of burglarizing an occupied structure in Perry County, Pennsylvania, and was sentenced by the state court to a term of 16-48 months' imprisonment. In April 2011, he arrived at the State Correctional Institution at Camp Hill, Pennsylvania (SCI Camp Hill), for processing and classification. Those procedures included a mental health screening.

         Brandon informed SCI Camp Hill mental health staff that he had attempted suicide in the past and had engaged in self-harm as recently as August 2010. He also advised staff that he experienced periodic thoughts of self-harm and suicide, and that he had made plans about how to kill himself. Brandon was diagnosed with a number of serious mental disorders, including alcohol dependence, anti-social personality disorder, and impulse control disorder. He was identified as a "suicide behavior risk, " J.A. 65[3], and was classified as "Stability Rating D, " signifying "a substantial disturbance of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or cope with the ordinary demands of life, " J.A. 66. It is the lowest stability rating given a prisoner in the Pennsylvania Department of Corrections (DOC) system. He was, accordingly, placed on the prison mental health roster.

         Brandon was transferred to SCI Cresson in June 2011. During his incarceration at SCI Cresson, he reported feeling depressed, exhibited signs of depression, and acknowledged suicidal thoughts and a wish to die. His nickname within the prison became "Suicide." Yet no comprehensive suicide risk assessment was performed. Brandon did not receive psychological counseling, drug and alcohol counseling, group therapy, or interviews in clinically appropriate settings; any mental health interviews were conducted "through the cell door slot in the solitary confinement unit." J.A. 82.

         According to the amended complaint, mental healthcare at SCI Cresson was seriously deficient in many respects. Specifically, the amended complaint alleged that SCI Cresson had insufficient psychiatric staff, failed to ensure adequate frequency of mental health appointments, failed to provide proper oversight of medication regimes, kept poor medical records, and did not train staff on the proper response to prisoners with mental illness. In addition, it was allegedly the practice at SCI Cresson that medications to treat mental illness were inadequately monitored for effectiveness and were used as a substitute for other, more effective treatments.

         The amended complaint further alleged that SCI Cresson's practice for dealing with mentally ill prisoners like Brandon was to relegate them to solitary confinement. This meant that because of Brandon's particular mental illnesses and lack of proper treatment, his behavior was "going to continually land him in solitary confinement unless there was an intervention on his behalf." J.A. 85. Therefore, over the course of his thirteen months at SCI Cresson, Brandon "was repeatedly subjected to solitary confinement via placement in the prison's Restricted Housing Unit (RHU), characterized by extreme deprivations of social interaction and environmental stimulation, abusive staff, and inadequate to non-existent mental health care."[4] J.A. 68 (footnote omitted).

         During his "multiple 30-day stints in solitary confinement, " J.A. 69, Brandon was exposed to extreme and trying conditions. He was isolated for approximately 23 to 24 hours each day, in a tiny cement cell of less than 100 square feet with only small slit windows affording him minimal outside visibility. He was not permitted to make phone calls, his possessions were limited to one small box, and his social interaction and environmental stimulation were severely reduced. Brandon was permitted just one hour of exercise five days out of each week, which took place in an outdoor cage only slightly larger than his cell.

         According to the amended complaint, prison officials were aware that exposure to these conditions carried mental health risks. The majority of incidents of self-harm at SCI Cresson-including suicides and suicide attempts-took place in solitary confinement. In 2011, 14 of the 17 documented suicide attempts (more than 80%) occurred in the prison's solitary confinement units. There also were "dozens of incidents" in which prisoners on the mental health roster engaged in self-harm, "while just two such incidents occurred in the general population." J.A. 78-79.

         Notably, during Brandon's incarceration, the United States Department of Justice (DOJ) announced that it would be undertaking an investigation into "allegations that SCI Cresson provided inadequate mental health care to prisoners who have mental illness, failed to adequately protect such prisoners from harm, and subjected them to excessively prolonged periods of isolation, in violation of the Eighth Amendment to the U.S. Constitution." J.A. 77. As part of that investigation, the DOJ conducted a site visit from March 19 to 22, 2012-also while Brandon was incarcerated- during which it interviewed administrative staff, medical staff, and prisoners. That investigation, as described in a report issued on May 31, 2013 (the "DOJ Report"), revealed "a wide array of policies and practices that were responsible for systemic deficiencies in SCI Cresson's treatment of mentally ill and intellectually disabled prisoners." J.A. 79; Department of Justice May 31, 2013 Findings Letter, https:// default/files/crt/legacy/2013/06/03/cresson_findings_5-31-13.pdf (last visited April 4, 2017).

         Among other things, the DOJ reported a "system-wide failure of security staff to consider mental health issues appropriately, " a "fragmented and ineffective" mental healthcare program, insufficient mental healthcare staffing to meet the prison population's needs, "[p]oor screening and diagnostic procedures, " poor recordkeeping "contributing to a dysfunctional system that undermined continuity of care, " "[d]eficient oversight mechanisms, including the failure to collect necessary information on critical incidents, such as acts of self-harm, " and a lack of training in the proper response to warning signs by prisoners with serious mental illness. J.A. 79-80 (citing DOJ Report). Although Brandon was incarcerated at SCI Cresson while the DOJ conducted its investigation, he died before it issued its Report.

         Brandon committed suicide on July 16, 2012, while in solitary confinement. He was 23 years old.


         As executors of their son's estate, Brandon's parents filed a five-count civil rights complaint on July 9, 2014 in the United States District Court for the Western District of Pennsylvania, naming a number of prison officials and mental healthcare providers.[5] In that complaint, the Palakovics presented claims under the Eighth Amendment that all defendants had been deliberately indifferent to both inhumane conditions that Brandon experienced while in solitary confinement and to Brandon's serious medical need for mental healthcare.[6] The defendants filed motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted.

         On June 26, 2015, the District Court entered a memorandum opinion and order granting the motions to dismiss. Rejecting the Palakovics' arguments to the contrary, the District Court concluded that, because the case involved a prison suicide, the "vulnerability to suicide" legal framework applied and required the Palakovics to establish that: "(1) the detainee had a 'particular vulnerability to suicide, ' (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers 'acted with reckless indifference' to the detainee's particular vulnerability."[7]Palakovic v. Wetzel, No. 3:14-cv-145, 2015 WL 3937499, at *4 (W.D. Pa. June 26, 2015) (First Dismissal) (quoting Colburn v. Upper Darby Township (Colburn II), 946 F.2d 1017, 1023 (3d Cir. 1991)). Because they did not plead facts sufficient to satisfy the vulnerability to suicide framework, the District Court dismissed the claims with leave to amend.

         On August 7, 2015, the Palakovics filed their amended complaint. They did not re-plead the claims set forth in the original complaint and instead presented four vulnerability to suicide claims against four groups of defendants.[8] They also pled an Eighth Amendment "failure to train" claim against the supervisory officials.[9]

          Two groups of defendants filed a second set of motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted.[10] On February 22, 2016, the District Court granted the motions and dismissed the Eighth Amendment claims. See Palakovic v. Wetzel, No. 3:14-cv-145, 2016 WL 707486 (W.D. Pa. Feb. 22, 2016) (Second Dismissal). The District Court again granted leave to amend, but the Palakovics declined to file a second amended complaint. Instead, on April 15, 2016, they filed a motion to voluntarily withdraw the claims against the three remaining defendants (Kushner, Reed, and Dous) pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure for the express purpose of filing this appeal. The District Court granted the motion, noting that the Palakovics had indicated an intention to stand on the amended complaint. The District Court entered judgment in favor of the defendants, and the Palakovics timely appealed.



         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction to review a final order of the District Court under 28 U.S.C. § 1291. Although we generally do not exercise jurisdiction where a District Court dismisses a complaint without prejudice and grants leave to amend, see Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976), such an order is final and reviewable under § 1291 where, as here, a party declares an intention to stand on the complaint, id. at 952.[11]


         We conduct a plenary review of an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). The Rules of Civil Procedure demand that a plaintiff present "only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir. 2010). To assess the sufficiency of a complaint under Twombly and Iqbal, a court must: "First, . . . 'tak[e] note of the elements a plaintiff must plead to state a claim.' Second, . . . identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'" Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (internal quotation marks omitted) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)).


         The Palakovics seek to appeal the District Court's First Dismissal, although they did not re-plead their original conditions of confinement and serious medical need claims in the amended complaint. Nor did they express an intention to preserve those claims for appeal. As an initial matter, then, we must consider whether appellate review of the First Dismissal has been waived.

         In general, an interlocutory order-like the First Dismissal order here-merges with the final judgment and is reviewable on appeal from the final judgment entered in the case. See In re: Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996). Also in general, an amended pleading-like the amended complaint here- supersedes the earlier pleading and renders the original pleading a nullity. See W. Run Student Hous. Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165, 171 (3d Cir. 2013); 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2010). Obviously, there is considerable tension between these two principles as we consider the matter before us-a tension that can be resolved only by deciding which principle prevails. Under the circumstances presented, we conclude that, while it would have been preferable for the Palakovics to have taken express, affirmative measures to ensure the preservation of their original claims for appellate review, [12] they have not waived those claims. We may therefore review the District Court's First Dismissal.

         In United States ex rel. Atkinson v. Pennsylvania Shipbuilding Co., we observed that "the proper rule allows plaintiffs to appeal dismissals despite amended pleadings that omit the dismissed claim provided repleading the particular cause of action would have been futile." 473 F.3d 506, 516 (3d Cir. 2007). We went on to explain that "[r]epleading is futile when the dismissal was 'on the merits.' A dismissal is on the merits when it is with prejudice or based on some legal barrier other than want of specificity or particularity." Id. (emphasis added). Thus, when a pleading "error" goes to the legal requirements of a cause of action, the dismissal is likely on the merits and should be reviewable on appeal. Id. at 517 n.17.

         Here, the District Court's First Dismissal states that the Eighth Amendment claims in the original complaint were dismissed for factual insufficiency. Yet that conclusion rested upon the District Court's application of the vulnerability to suicide framework. The Palakovics contend that application of that framework was legal error.

         We conclude that the claims in the original complaint were dismissed on legal grounds, rather than due to a lack of factual specificity. See id. at 517. It is apparent that the District Court would not have been satisfied by a more detailed factual account to support the Palakovics' claims. Additional facts simply would not have addressed the legal flaw that provided the basis for dismissal-i.e., the failure to plead allegations supporting a vulnerability to suicide claim. Because repleading would have been futile, the legal argument that the vulnerability to suicide framework never should have been applied is properly raised on appeal. Moreover, if there were any doubt, Atkinson directs that such doubt must be resolved in favor of the Palakovics and, thus, in favor of appellate review. Id. Accordingly, the Eighth Amendment claims as set forth in the original complaint have not been waived and we will consider whether the District Court properly dismissed them.[13]


         Before turning to our review of the District Court's First Dismissal, it is necessary that we take a close look at the vulnerability to suicide framework that guided the District Court's decisionmaking process. Our vulnerability to suicide jurisprudence is set forth in three primary cases: Colburn v. Upper Darby Township (Colburn I), 838 F.2d 663 (3d Cir. 1988); Colburn v. Upper Darby Township (Colburn II), 946 F.2d 1017 (3d Cir. 1991); and Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005). These cases addressed claims that prison officials violated the Constitution by failing to protect pre-trial detainees from harming themselves. We discuss each in turn.

         In Colburn I, Melinda Lee Stierheim was arrested for public intoxication. Colburn I, 838 F.2d at 664. Four hours after her arrest, while in police custody, she died from a self-inflicted gunshot wound. Id. at 665. Sue Ann Colburn, Melinda's mother and administratrix of her estate, filed a § 1983 complaint against prison officials alleging, inter alia, that they violated Melinda's constitutional rights because they knew or should have known that Melinda was a suicide risk and therefore had an ...

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