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Kapp v. Wetzel

United States District Court, W.D. Pennsylvania

May 10, 2017

KAREN KAPP, individually and as Administrator of the Estate of her minor son, ZACHARY PROPER, Plaintiff,



         Plaintiff 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[1] (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.

         For the 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.


         Plaintiff filed her Complaint on September 6, 2016. ECF No. 1. Therein, she makes the following allegations.

         On 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.

         Following 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, [2]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.

         Beginning 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. Id.

         Beginning 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.

         On 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.

         At 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.

         Plaintiff 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.

         On 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.


         As the 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).


         A. The Corrections Defendants' Motion to Dismiss

         1.Count I: Section 1983

         a. Allegations of constitutional violations

         The 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.

         In 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).

         Although 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 omitted).

         A 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 marks omitted).

         Recently, the United States Court of Appeals for the Third Circuit reiterated that:

… [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).

         Plaintiff 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 Stress Disorder;
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 several weeks;
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 term;
11. Zachary had recently quit his job;
12. Zachary had stopped calling his mother.

ECF No. 1 ¶ 40.

         Plaintiff 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 to Defendants:

1. Failure to schedule and carry out psychiatric appointments and other appointments for mental health care with ...

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