United States District Court, W.D. Pennsylvania
KAREN KAPP, individually and as Administrator of the Estate of her minor son, ZACHARY PROPER, Plaintiff,
JOHN E. WETZEL, ERIC BUSH, ROBERT MARSH, MHM SERVICES, MURRAY THOMPSON, YIN HA YUN, KAREN MARUSA, and MARK NICHOLSON, Defendants. Re: ECF 20 and 25
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
Karen Kapp (“Plaintiff'”), individually and
as the administrator of the estate of her minor son Zachary
Proper (“Zachary”), brings the instant civil
action stemming from the Zachary's death by suicide, at
the age of 15, while incarcerated at the State Correctional
Institution at Pine Grove (“SCI Pine Grove”).
Presently before the Court are two Motions to Dismiss: (1)
one filed by Defendants Eric Bush, Robert Marsh, Karen
Marusa, Mark Nicholson, Murray Thompson and John E.
Wetzel (collectively, “the Corrections
Defendants”), ECF No. 20; and (2) one filed by
Defendants MHM Services (“MHM”) and Yin Ha Yun
(“Dr. Yun”) (collectively, “the Mental
Health Defendants”), ECF No. 25.
following reasons, the Corrections Defendants' Motion to
Dismiss, ECF No. 20, will be granted in part and denied in
part and the Mental Health Defendants' Motion to Dismiss
will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
filed her Complaint on September 6, 2016. ECF No. 1. Therein,
she makes the following allegations.
October 7, 2012, when he was 13 years old, Zachary murdered
his grandparents. Id. ¶ 16. He pled guilty to
murder in the third degree and was sentenced to 30 to 80
years' imprisonment. Id. ¶ 17. On January
16, 2014, Zachary was transferred to SCI Pine Grove.
Id. ¶ 18. SCI Pine Grove primarily houses
youthful offenders. Id.
his transfer to SCI Pine Grove, Zachary was evaluated by
mental health staff. Id. ¶ 19. The evaluation
revealed that Zachary had a significant history of
depression, physical and sexual abuse, suicidal ideation,
multiple suicide attempts, hearing voices, psychiatric
hospitalization and substance abuse. Id. Zachary was
prescribed multiple psychiatric medications at the time of
his transfer. Id. On January 17, 2014, Dr. Yun, a
psychiatrist at SCI Pine Grove, changed one of Zachary's
medications, substituting Risperdal for Abilify. Id.
¶¶ 2, 20. On January 25, 2014, the medication was
decreased at Zachary's request. Id. ¶ 20.
Between January and July of 2014, Dr. Yun repeatedly changed
Zachary's psychiatric medications and/or dosages.
Id. ¶ 21. In June of 2014, Zachary began
regularly refusing to take some or all of his psychiatric
medications. Id. ¶ 22. Between June 15, 2014,
and September 2, 2014, Zachary signed approximately 25
releases related to his refusal to take his medication.
Id. ¶¶ 23-24. No action was taken to
address Zachary's medication non-compliance. Id.
¶ 25. Close in time to his fifteenth birthday, July 27,
2014, Zachary quit his job cleaning bathrooms. Id.
¶ 26. Zachary had enjoyed this job as it provided him an
opportunity to leave his cell. Id. On July 29, 2014,
Zachary saw Dr. Yun. Id. ¶
27. Dr. Yun's report from this meeting does not mention
Zachary's medication non-compliance or that he quit his
job. Id. Further, despite recent medication
adjustments and medication non-compliance, Dr. Yun did not
schedule a follow-up appointment with Zachary. Id.
in March, 2014, Zachary had treatment approximately once a
month with a Psychological Services Specialist, usually
Defendant Marusa. Id. ¶ 28. On August 13, 2014,
Zachary reported to Defendant Marusa that he was crying and
experiencing emotions he had not felt in a long time.
Id. ¶ 29. He expressed regret for killing his
grandparents and stated that he was having “mind
flashes” and dreams about them. Id. When he
left the appointment, however, Zachary was “fine”
and was laughing. Id. Defendant Marusa did not take
any action on the information obtained in this meeting.
on or about September 1, 2014, Zachary stopped calling
Plaintiff. Id. ¶ 30. Plaintiff called SCI Pine
Grove every day that week and reported the missing calls,
expressing her fear that Zachary might commit suicide.
Id. The representatives she talked to told her they
were aware of Zachary's prior suicide attempts and would
“keep an eye on him.” Id.
September 8, 2014, Marusa met with Zachary and reported that
he was on “transition status, ” a form of
discipline, but that this was “just a little
setback.” Id. ¶ 31. As of that date,
Zachary had not taken any of his medications except for
Celexa for at least three weeks. Id. ¶ 32.
Also, as of that date, Zachary had not been examined or
evaluated by Dr. Yun or any other psychiatrist for nearly six
weeks. Id. ¶ 33.
10:30 p.m. on September 8, 2014, Defendant Nicholson observed
Zachary alive in his cell. Id. ¶ 34. During
Defendant Nicholson's next round, at approximately 11:05
p.m., he found Zachary lifeless in his cell. Id.
¶ 36. Zachary had hung himself from the frame of his
bunk bed with a bed sheet. Id. ¶ 35. After
efforts to resuscitate him failed, Zachary was pronounced
dead at approximately 11:47 p.m. Id. ¶ 36.
sets forth three counts in the Complaint: (1) Count I: a
civil rights action pursuant to 42 U.S.C. § 1983 against
all Defendants for violations of Zachary's constitutional
rights, ECF No. 1 ¶¶ 38-43; (2) Count II: a state
law wrongful death/medical negligence claim against
Defendants MHM, Yun, Marsh, Thompson and Marusa; and (3)
Count III: a state law survival/medical negligence claim
against all Defendants.
November 3, 2016, the Corrections Defendants filed a Motion
to Dismiss and a Brief in Support. ECF Nos. 20-21. On
November 7, 2016, the Mental Health Defendants filed a Motion
to Dismiss and a Brief in Support. ECF No. 25-26. On December
29, 2016, Plaintiff filed a Response to the Motions to
Dismiss. ECF No. 37. On January 18, 2017, the Mental Health
Defendants filed a Reply to the Response. ECF No. 40. The
Motions to Dismiss are now ripe for review.
STANDARD OF REVIEW
United States Supreme Court explained in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may
properly be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) if it does not allege “enough facts
to state a claim to relief that is plausible on its
face.” Id. at 570. In assessing the merits of
a claim subject to a motion to dismiss, a court must accept
all alleged facts as true and draw all inferences gleaned
therefrom in the light most favorable to the non-moving
party. Phillips v. County of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008) (citing Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). A
pleading party need not establish the elements of a prima
facie case at this stage; the party must only “put
forth allegations that ‘raise a reasonable expectation
that discovery will reveal evidence of the necessary
element[s].'” Fowler v. UPMC Shadyside,
578 F.3d 203, 213 (3d Cir. 2009) (quoting Graff v.
Subbiah Cardiology Associates, Ltd., 2008 WL 2312671
(W.D. Pa. June 4, 2008)). The scope of review may extend to
“matters of public record, orders, exhibits attached to
the complaint and items appearing in the record of the
case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
The Corrections Defendants' Motion to Dismiss
I: Section 1983
Allegations of constitutional violations
Corrections Defendants assert that Plaintiff's
allegations in Count I fall short of asserting a claim for
constitutional violations and instead, at best, assert a
state law claim of professional liability. ECF No. 21 at 3-5.
Specifically, the Corrections Defendants baldly assert that
“the allegations contained in Count I of
Plaintiff's Complaint fail to assert cognizable claims
for any violation of a constitutionally afforded
right.” ECF No. 21 at 4.
order to succeed on a Section 1983 claim, a claimant must
show: (1) the conduct complained of was performed by a person
acting under color of state law; and (2) this conduct
deprived the claimant of rights, privileges, or immunities
secured by the Constitution or laws of the United States. 42
U.S.C. § 1983; Kost v. Kozakiewicz, 1 F.3d 176,
184 (3d Cir. 1993).
the allegations in Count I refer separately to violations of
Zachary's rights under the Eighth and Fourteenth
Amendments, the constitutional violation alleged in Count I,
Defendants' alleged disregard for Zachary's serious
medical need, i.e., a particular vulnerability to
suicide, must be evaluated according to Eighth Amendment
standards. See Albright v. Oliver, 510 U.S. 266, 273
(1994)(holding that “where a particular Amendment
provides an explicit textual source of constitutional
protection against a particular sort of government behavior,
that Amendment, not the more generalized notion of
substantive due process [of the Fourteenth Amendment], must
be the guide for analyzing these claims.”)(citation
refusal to provide medical care to a prisoner violates the
Eighth Amendment's prohibition of “cruel and
unusual punishment.” U.S. Const. amend. VIII.
“Regardless of how evidenced, ” whether
“manifested by prison doctors in their response to the
prisoner's need or by prison guards in intentionally
denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed, ”
“deliberate indifference to a prisoner's serious
illness or injury states a cause of action under §
1983.” Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). A particular vulnerability to suicide is a serious
medical need encompassed within the rule of Estelle.
Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d
Cir. 2014), rev'd on other grounds, Taylor
v. Barkes, 135 S.Ct. 2042 (2015) (citation and quotation
the United States Court of Appeals for the Third Circuit
… [O]ur case law teaches that, when a plaintiff seeks
to hold a prison official liable for failing to prevent a
detainee's suicide … a plaintiff must show: (1)
that the individual had a particular vulnerability to
suicide, meaning that there was a “strong likelihood,
rather than a mere possibility, ” that a suicide would
be attempted; (2) that the prison official knew or should
have known of the individual's particular vulnerability;
and (3) that the official acted with reckless or deliberate
indifference, meaning something beyond mere negligence, to
the individual's particular vulnerability.
Palakovic v. Wetzel, No. 16-2726, 2017 U.S. App.
LEXIS 6438 at *19-20 (3d Cir. filed April 14, 2017).
alleges that Defendants were aware of facts and circumstances
which put them on notice that Zachary presented an objective
and excessive risk of suicide, including:
1. Zachary was diagnosed with depression;
2. Zachary has previously been diagnosed with Post Traumatic
3. Zachary had a history of suicide attempts;
4. Zachary had history of physical and sexual abuse;
5. Zachary had a history of abusing controlled substances;
6. Zachary required medication to treat his mental illnesses;
7. Zachary had been refusing his psychiatric medication for
8. Zachary had recently, for the first time, expressed
remorse for the murder of his grandparents;
9. Zachary had been emotional and had been tearful thinking
about his grandparents;
10. Zachary had recently been sentenced to a lengthy prison
11. Zachary had recently quit his job;
12. Zachary had stopped calling his mother.
ECF No. 1 ¶ 40.
alleges that, despite knowledge of these facts and
circumstances, Defendants violated Zachary's Eighth
Amendment rights when they failed to take reasonable action
to protect Zachary from harming himself. Id. ¶
41. Specifically, Plaintiff attributes the following failures
1. Failure to schedule and carry out psychiatric appointments
and other appointments for mental health care with