IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DENISE GIANDONATO, AS
ADMINISTRATRIX FOR THE ESTATE
OF DENNIS A. MANDI,
Plaintiff,
v.
MONTGOMERY COUNTY, MONTGOMERY
COUNTY CORRECTIONAL FACILITY,
WARDEN ROTH, DR. ROCIO NELL,
EMSA, MONTGOMERY COUNTY
EMERGENCY SERVICES, and DR.
BOB DOE,
Defendants.
Civil Action
No.97-CV-0419
Gawthrop, J. May , 1998
MEMORANDUM
Before the court in this 42 U.S.C. § 1983 prisoner wrongful
death action are two summary judgment motions, one by defendants
Montgomery County Correctional Facility and Warden Roth, and the
other by defendants Dr. Rocio Nell and Montgomery County
Emergency Services ("MCES"). Upon the following reasoning,
defendants MCCF and Warden Roth’s motion shall be denied, and
defendants Dr. Nell and MCES’s motion shall be denied in part and
granted in part.
2
I. Background
On October 13, 1995, Dennis Mandi was arrested, resulting in
his incarceration at the Montgomery County Correctional Facility
(“MCCF”). After he informed the medical personnel during his
intake medical screening that he was undergoing drug dependency
withdrawal, he was placed in the general population. Five days
later, after fighting with another inmate, Mr. Mandi was moved to
separation. On October 20, 1995, after Mr. Mandi jumped head
first off a top bunk, he told prison officials that he had
attempted to commit suicide and stated that he would try again
until he succeeded. As a result of this incident, Mr. Mandi was
classified as suicidal, transferred to the prison’s psychiatric
wing, and placed in four point restraints for a twenty-four hour
period.
While housed in the psychiatric wing, Mr. Mandi was
evaluated and treated primarily by two individuals: Dr. Rocio
Nell and Dr. Robert Wlodarczyk ("Dr. Bob"). The prison had
contracted with Dr. Bob’s employer, EMSA, to provide medical
services, including psychiatric and psychological services, to
inmates at the prison. Under the contract terms, Dr. Bob was
responsible for the daily interaction with the inmates. EMSA
subcontracted with Dr. Nell’s employer, MCES, to provide a
psychiatrist, Dr. Nell, on-site at the prison five hours per
week, and on-call services twenty-four hours a day, seven days a
week. Generally, an inmate requesting psychiatric services would
first be evaluated by an EMSA nurse, who would refer the inmate
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to Dr. Bob, who would then, if necessary, refer the inmate to Dr.
Nell for further observation. However, if an inmate threatened
suicide, the prison officials would contact Dr. Nell directly,
since she was responsible for the housing and monitoring
decisions concerning suicidal inmates.
On October 25, 1995, Dr. Bob telephoned Dr. Nell and
informed her that Mr. Mandi, who was still housed in the
psychiatric wing, was expressing feelings of paranoid ideation,
auditory hallucinations, feelings that others were plotting
against him, and general agitation. Dr. Nell prescribed
medication for his symptoms of paranoia. On October 27, 1995,
Dr. Nell conducted her first in-person examination of Mr. Mandi.
Although Dr. Nell had not reviewed Mr. Mandi’s medical records,
she consulted with Dr. Bob who knew that Mr. Mandi had jumped
head-first off the top bunk. They claim, however, to have
discussed only Mr. Mandi’s paranoid ideation. During the exam,
Dr. Nell noted that Mr. Mandi was restless, agitated, and very
suspicious. Again, Dr. Nell prescribed medication only for Mr.
Mandi’s paranoia.
One month later, on November 24, 1995, Dr. Nell examined Mr.
Mandi for the second time, at which point she discontinued Mr.
Mandi’s medication because he refused to take it, claiming that
his fears were based in reality. Following the examination, Mr.
Mandi was released back into the general population. Two days
later, after Mr. Mandi told prison officials that he felt like
jumping off the second floor building and that he was "ready to
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pop," Dr. Nell ordered Mr. Mandi transferred back to the
psychiatric unit for observation, classified as suicidal. Later
that evening, a nurse reported to Dr. Nell that Mr. Mandi had
stated that he no longer felt suicidal and that he wanted to be
returned to the general population. Dr. Nell ordered that Dr.
Bob examine Mr. Mandi as soon as possible, but Dr. Bob was
unavailable until the next morning. Dr. Bob arrived at the
prison the next day at 8:00 a.m. and had not yet examined Mr.
Mandi when, at approximately 1:00 p.m., he was found hanging in
his cell by his jumpsuit. Mr. Mandi died at Suburban General
Hospital on November 29, 1995.
During the time that Mr. Mandi was incarcerated at MCCF,
EMSA incorporated a written suicide policy into its contract for
services, which contract was signed by Warden Roth. Among other
things, as part of the effort to prevent suicidal gestures and
suicide attempts, the policy announced that the correctional
staff and medical personnel should cooperate to monitor suicidal
inmates every fifteen minutes. The activity sheets maintained by
the correctional staff indicate that the monitoring of suicidal
inmates, such as Mr. Mandi, did not conform to this standard.
For example, on the date of his suicide, Mr. Mandi was observed
by a correctional officer at approximately 11:00 a.m., when he
served Mr. Mandi his lunch tray, but was not seen again until he
was found hanging in his cell at approximately 1:00 p.m.
Moreover, Dr. Nell, Warden Roth, and other correctional officers
deny knowledge that there was a policy stating that suicidal
5
inmates should be visually checked every fifteen minutes.
Rather, even though Warden Roth was generally informed of
suicidal inmates during his daily rounds of the facility, there
were no planned tours by security for those inmates who had been
designated as suicidal.
II. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). Unless
evidence in the record would permit a jury to return a verdict
for the non-moving party, there are no issues for trial, and
summary judgment becomes appropriate. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In considering a motion for
summary judgment, a court does not resolve factual disputes or
make credibility determinations and must view facts and
inferences in the light most favorable to the party opposing the
motion. Siegel Transfer, Inc. v. Carrier Express, Inc. , 54 F.3d
1125, 1127 (3d Cir. 1995). The party opposing the summary
judgment motion must come forward with sufficient facts to show
that there is a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986).
III. Discussion
Dr. Nell and MCES argue that they are entitled to summary
judgment because plaintiff cannot demonstrate that they had
1 "A detainee is entitled under the Due Process Clause of the
Fourteenth Amendment to, at a minimum, . . . no less a level of medical care
than that required for convicted prisoners by the Eighth Amendment." Colburn
v. Upper Darby Twnshp., 838 F.2d 633, 668 (3d Cir. 1988); Boring v.
Kozakiewicz, 833 F.2d 468 (3d Cir. 1987).
6
knowledge of Mr. Mandi’s vulnerability to suicide, and further,
that they did not act with deliberate indifference in treating
Mr. Mandi. Similarly, Warden Roth and MCCF argue that because
Warden Roth did not have subjective knowledge of Mr. Mandi’s
vulnerability to suicide, summary judgment should be entered in
their favor. They further assert that Warden Roth should be
afforded qualified immunity against plaintiff’s claims, and that
plaintiff cannot demonstrate that MCCF had a policy or custom
that violated any of Mr. Mandi’s constitutional rights.
A. Warden Roth
To state a claim for relief under 42 U.S.C. § 1983 for
denial of medical treatment, a prisoner must allege facts or
omissions sufficiently harmful to evidence "deliberate
indifference to serious medical needs." Estelle v. Gamble, 429
U.S. 97, 106 (1976)(setting forth standard for violations of
prisoners’ Eighth Amendment rights).1 With respect to suicidal
inmates, a custodial official may be liable in damages only if he
acts with “deliberate indifference” to the individual’s
psychological needs. Williams v. Borough of West Chester, 891
F.2d 458 (3d Cir. 1989). Specifically, to establish individual
liability against a custodial officer, a plaintiff must establish
three elements: "(1) the detainee had a 'particular vulnerability
to suicide,' (2) the custodial officer knew or should have known
7
of that vulnerability, and (3) the officer 'acted with reckless
indifference' to the detainees' vulnerability." Colburn v. Upper
Darby Twnshp., 946 F.2d 1017, 1023 (3d Cir. 1991)("Colburn
II")(citing Colburn v. Upper Darby Twnshp., 838 F.2d 633 (3d
Cir. 1988))("Colburn I").
More specifically, the second prong of the Colburn II test
has further been held to require that the prison "official ha[ve]
a subjective awareness of a substantial risk of serious harm.
Thus, a plaintiff must show actual awareness of the risk, not
just that the risk would have been perceived by an objective
reasonable person." Litz v. City of Allentown, 896 F. Supp.
1401, 1410 (E.D. Pa. 1995); see also Farmer v. Brennan, 511 U.S.
825 (1994)(holding that to be deliberately indifferent, prison
officials must know the facts from which the harm or risk of harm
could be inferred, and must actually draw the inference). As to
the third prong, "deliberate indifference in a pretrial detainee
suicide case must amount to more than an assertion of a negligent
failure to protect the detainee from his/her own actions." Robey
v. Chester County, 946 F. Supp. 333, 337 (E.D. Pa. 1996).
Warden Roth argues immunity: that the question of whether he
was deliberately indifferent to Mr. Mandi’s needs should not go
to the jury, because he is entitled to qualified immunity against
plaintiff’s § 1983 claims. The doctrine of qualified immunity
shields “government officials performing discretionary functions
. . . from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
8
rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The defendant bears the
burden of proving that he is entitled to qualified immunity. Id.
at 815; Stoneking v. Bradford Area School Dist. , 882 F.2d 720,
726 (3d Cir. 1989). Whether an official may prevail in his
qualified immunity defense depends upon the "objective
reasonableness of [his] conduct as measured by reference to
clearly established law." Davis v. Scherer, 468 U.S. 183, 191
(1984)(quoting Harlow, 457 U.S. at 818). However, "there does
not have to be 'precise factual correspondence' between the case
at issue and a previous case in order for a right to be clearly
established.'" Burns v. County of Cambria, Pa., 971 F.2d 1015,
1024 (3d Cir. 1992)(quoting People of Three Mile Island v.
Nuclear Reg. Comm’rs, 747 F.2d 139, 144-145 (3d Cir. 1984)).
At the time of the relevant conduct, Warden Roth did,
indeed, have a clearly established duty not to act with
deliberate indifference to Mr. Mandi’s serious medical needs.
Nevertheless, Warden Roth is entitled to immunity if he knew or
should have known of Mr. Mandi’s vulnerability to suicide, and
based on the information available to him, he reasonably could
have believed that he addressed Mr. Mandi’s vulnerability with
something more responsive than reckless or deliberate
indifference.
In this case, there exist jury questions as to whether
Warden Roth knew of Mr. Mandi’s vulnerability to suicide, whether
the suicide monitoring policy was sufficient to meet the
9
prisoners’ serious psychiatric needs, and whether Warden Roth’s
acquiescence to the lack of proper suicide policy constitutes
deliberate indifference that was causally connected to Mr.
Mandi’s suicide. I conclude that plaintiff has adduced
sufficient evidence to support findings of fact that would
constitute a violation by Warden Roth of Mr. Mandi’s clearly
established constitutional rights. This constrains a denial of
Warden Roth’s assertion of qualified immunity and precludes
granting summary judgment.
B. MCCF
Supervisory liability for state employee’s unconstitutional
conduct exists under § 1983. However, it is based not on the
ground of respondeat superior, but rather on actual knowledge and
acquiescence. See, e.g., Baker v. Monroe Township, 50 F.3d 1186,
1194 (3d Cir. 1995); Andrews v. City of Philadelphia, 895 F.2d
1469, 1478 (3d Cir. 1990). Municipal defendants “can be held
liable under § 1983 only if the plaintiff can establish a policy
or custom on the part of the municipality,” Robey, 946 F. Supp.
at 338, for which a causal nexus can be shown between that policy
and the violation of constitutional rights. See Monell v. Dept.
of Social Servs., 436 U.S. 658, 690 (1978).
In Robey, plaintiffs claimed that Chester County prison
"ha[d] not followed the minimal practice in the field of personal
observation of inmates and that th[at] evidence[d] an
unconstitutional policy or practice on the part of Chester
County,” which made it liable for the suicide of one of the
2 Dr. Nell and Warden Roth were sued both in their official and
individual capacities. Claims against officials in their official capacities
are equivalent to claims against the government entity itself. See W.B. v.
Matula, 67 F.3d 484, 499 (3d Cir. 1995). Because plaintiff has adduced facts
evidencing a policy or custom on the part of the correctional and medical
staff which a jury could conclude constitutes deliberate indifference to
suicidal prisoners’ needs, summary judgment for Dr. Nell and Warden Roth in
their official capacities must also be denied.
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prison’s inmates. Robey, 946 F. Supp. at 338. The court found
that this allegation "produced enough facts of record to create a
question of material fact with regard to the policy allege[d] and
the requisite causation required to sustain that claim." Id.
Because, here, plaintiff similarly alleges that it was the
prison’s failure to practice the fifteen-minute check that
resulted in Mr. Mandi’s suicide, that allegation presents a
genuine issue of material fact. Thus, I must deny summary
judgment for MCCF.2
C. Dr. Nell and MCES
1. Section 1983 Claim
Allegations merely stating a claim for medical malpractice
do not support a § 1983 claim for deliberate indifference to
serious medical needs. Estelle, 429 U.S. at 105-106 ("[A]
complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment."). Moreover, no
Eighth Amendment claim "is stated when a doctor disagrees with
the professional judgment of another doctor." White v. Napoleon,
897 F.2d 103, 110 (3d Cir. 1990). Thus, even "f the doctor's
judgment is ultimately shown to be mistaken, at most what would
3 “As soon as possible,” often abbreviated ASAP, does indeed express
some urgency by its very words. It goads one out of the starting blocks more
abruptly than, for example, “With all deliberate speed,” though seemingly less
so than “Right now!” “Immediately!” or “At once!”
11
be proved is medical malpractice, not an Eighth Amendment
violation." Id.
I find that a genuine issue of material fact exists as to
whether Dr. Nell’s treatment of Mr. Mandi constitutes deliberate
indifference or negligence, thus precluding the grant of summary
judgment for Dr. Nell. Viewing the facts in the light most
favorable to the non-moving party, plaintiff has produced facts
sufficient to permit a trier of fact to find that Dr. Nell had
actual knowledge of Mr. Mandi’s serious risk of suicide and that
her treatment of Mr. Mandi constituted deliberate indifference to
that risk. Dr. Nell did order Dr. Bob to examine Mr. Mandi "as
soon as possible"3 after his various statements to the
correctional and medical staff, together with his suicidal
gestures, gave her reason to know that Mr. Mandi was vulnerable
to suicide. She did not, however, prescribe any medication,
order a constant watch, or otherwise take steps to minimize the
risk of suicide could be construed as being deliberately
indifferent to Mr. Mandi’s psychological needs. After all, Dr.
Nell was the person responsible for the housing and monitoring
directives for suicidal inmates. Whether her conduct constituted
deliberate indifference is further brought into question by the
fact that Dr. Nell did little to ensure that the prison’s
policies, which were promulgated with the specific purpose of
12
preventing exactly that which occurred in the present case, were
followed.
2. Medical Malpractice Claim
I find, however, that Dr. Nell is immune, under 42 Pa. C.S.
§ 8501 et seq., the Political Subdivision Tort Claims Act
("PSTCA"), against plaintiff’s medical malpractice claim.. In
Walls v. Hazelton State General Hospital , 629 A.2d 232 (Pa.
Cmwlth. 1993), a case in which a physician was similarly on-call
to provide services to a state hospital, the court held that
because the "jury could have concluded that [the physician] was a
'person who is acting or who has acted on behalf of a government
unit' under Section 8501," that physician was entitled to
immunity against claims of negligence. Id. at 237. Similarly, I
find here that Dr. Nell should be entitled to immunity against
plaintiff’s claims of negligence.
Under the PSTCA, state employees are afforded immunity from
liability for their negligent acts. See 42 Pa. C.S. § 8541.
State actors can only be sued for negligence in eight specific
categories allowed under § 8542. Moreover, the PSTCA denies
immunity to individual defendants whose acts constitute "actual
malice or willful misconduct." See 42 Pa. C.S. § 8550. In this
case, plaintiff has not alleged a cause of action that falls into
any of the eight enumerated exceptions to governmental immunity
or to allege state law claims based on malice or willful
4 In her opposition to defendants’ motion for summary judgment,
plaintiff attempts to argue that summary judgment should be denied because
defendants’ actions constitute "willful misconduct." Aside from belatedly
attempting to bring a claim against defendants for willful misconduct that was
not included in any prior pleadings, there are no facts alleged that could be
seen to constitute "willful misconduct." Under Pennsylvania law, "willful
misconduct" for which an employee of a local agency is not immune is
misconduct that the employee recognizes as misconduct and that is carried out
with the intention of achieving that exactly wrongful purpose. In re City of
Philadelphia Litig., 938 F. Supp. 1264, 1273 (E.D. Pa. 1996). Here, even if
it is found that defendants acted with deliberate indifference to Mr. Mandi’s
psychological needs, this is not equivalent to finding “willful misconduct”
and therefore, does not require the denial of Dr. Nell’s immunity against
plaintiff’s state law claims under the PSTCA.
5 As summary judgment has been granted on the claims of negligence
against MCES’s agent, Dr. Nell, plaintiff cannot proceed against MCES on these
claims.
13
misconduct.4 Accordingly, I find that Dr. Nell has immunity from
plaintiff’s negligence claims, and shall thus grant summary
judgment for Dr. Nell on those claims. 5
D. MCES
MCES will be liable only if its policies or procedures are
unconstitutional or are the "moving force" behind the
unconstitutional violation of Mr. Mandi’s rights. Monell, 436
U.S. at 694-95, Colburn II, 946 F.2d at 1027-29. It is unclear
whether, in fact, MCES implemented any policies or reasonable
measures addressing Dr. Nell’s treatment of inmates who posed a
serious risk of suicide. Thus, that MCES had meager, inadequate,
or non-existent procedures could lead a jury to conclude that its
policies are so inadequate and ineffective as to demonstrate
deliberate indifference toward the psychiatric needs of MCCF’s
inmates, including Mr. Mandi’s.
An order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DENISE GIANDONATO, AS
ADMINISTRATRIX FOR THE ESTATE
OF DENNIS A. MANDI,
Plaintiff,
v.
MONTGOMERY COUNTY, MONTGOMERY
COUNTY CORRECTIONAL FACILITY,
WARDEN ROTH, DR. ROCIO NELL,
EMSA, MONTGOMERY COUNTY
EMERGENCY SERVICES, and DR.
BOB DOE ,
Defendants.
Civil Action
No.97-CV-0419
O R D E R
AND NOW, this day of May, 1998, Defendants Montgomery
County Correctional Facility’s and Warden Roth’s Motion for
Summary Judgement is DENIED, and Defendants Dr. Rocio Nell’s and
Montgomery County Emergency Service’s Motion for Summary Judgment
on Plaintiff’s negligence claims is GRANTED, and DENIED as to
Plaintiff’s claims under 42 U.S.C. § 1983.
BY THE COURT:
_______________________________
Robert S. Gawthrop, III J.
Here's a video made in 1968 about the atrocities at Pennhurst _http://www.youtube.com/watch?v=YG33HvIKOgQ
