RENEE PALAKOVIC, as Administrator of the Estate of Brandon Palakovic; DARIAN PALAKOVIC, as Administrator of the Estate of Brandon Palakovic, Appellants
JOHN WETZEL; KENNETH CAMERON; JAMIE BOYLES; JAMEY LUTHER; DR. JAMES HARRINGTON; DR. DALEEP RATHORE; MICHELLE HOUSER; MORRIS HOUSER; FRANCIS PIROZZOLA; JOHN DOES #1, #2; JOHN DOES # 3-6; MHM INC; DR. CAROL EIDSVOOG; HEARING EXAMINER ROBERT REED; CORRECTIONAL OFFICER KUSHNER; SERGEANT DOUS
January 12, 2017
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
Grote [ARGUED]Abolitionist Law Center, Michael J. Healey
Healey & Hornack, Counsel for Appellants.
G. Hopkirk [ARGUED] Office of Attorney General of
Pennsylvania, Counsel for Corrections Officials Appellees
S. Baum Cassidy L. Neal [ARGUED] Matis Baum &
O'Connor, Counsel for Appellees Dr. Daleep Rathore, Dr.
Carol Eidsvoog, and MHM, Inc.
J. Walczak American Civil Liberties Union, Counsel for Amicus
Before: SMITH, Chief Judge, JORDAN, and SHWARTZ, Circuit
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
following allegations appear in the amended
complaint. Brandon Palakovic 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
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, 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
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.
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
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." J.A. 68 (footnote
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.
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.
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:// www.justice.gov/sites/
(last visited April 4, 2017).
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
committed suicide on July 16, 2012, while in solitary
confinement. He was 23 years old.
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. 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. 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.
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."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.
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. They also pled an
Eighth Amendment "failure to train" claim against
the supervisory officials.
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. 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.
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.
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).
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
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.
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,  they have not
waived those claims. We may therefore review the District
Court's First Dismissal.
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.
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.
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.
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.
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 ...