Michele Donnell v. Correctional Health 10-1211 De

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-1211
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MICHELE LOGLISCI DONNELL, Individually and as Executrix of the Estate of
GREGORY JAMES DONNELL, deceased,

Appellant
v.

CORRECTIONAL HEALTH SERVICES, INC.; COUNTY OF OCEAN; OCEAN
COUNTY DEPARTMENT OF CORRECTIONS; THEODORE HUTLER, Individually
and as a Warden for Ocean County Department of Corrections; NOUREDDINE
HENDERSON; ROBERT BURNS; JESSICA CLAYTON; MICHAEL HARTMAN;
WILLIAM BOETTGER; ERIC ZENTZIS; ROBERT C. STUERZE; MARTIN S.
PASKO; V. HUGHES (CORRECTIONAL OFFICERS); DONATO J. SANTANGELO;
MARIA ALICEA; KATHY PETROWSKY; DEBBIE FILARSKI; CARMEN
THOMAS; MICHELLE GAITO (MEDICAL STAFF); JANE DOES 1-10 (Said Names
Representing Fictitious Individual Ocean County Correctional Facility); JOHN & JANE
DOES 11-20 (Said Names Representing Fictitious Individual Physicians and Healthcare
Providers at Ocean County Correctional Facility whose True Names are unknown at this
time); ABC BUSINESS 1-5 (Said Names Representing a Fictitious Corporation,
Partnership, Association or Sole Proprietor, True Names Unknown at this Time)
_____________

Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-09-cv-03485-001)
District Judge: Honorable Joel A. Pisano
_____________

Submitted Under Third Circuit LAR 34.1(a)
November 18, 2010

Before: BARRY, CHAGARES and VANASKIE, Circuit Judges

(Filed December 17, 2010)
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 OPINION OF THE COURT
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VANASKIE, Circuit Judge.

Michele Loglisci Donnell, individually and as executrix of the Estate of Gregory

James Donnell, appeals the orders of the District Court granting summary judgment

against her and denying her motion for reconsideration. For the reasons that follow, we

will affirm in part, vacate in part, and remand for further proceedings.

I.

On July 13, 2009, Donnell, individually and as executrix of the Estate of her late

husband, Gregory James Donnell (“Mr. Donnell”), initiated this action in the United

States District Court for the District of New Jersey against the County of Ocean, the

Ocean County Department of Corrections, the warden and several correctional officers of

the Ocean County Department of Corrections, Correctional Health Services, Inc.

(“CHS”), and several CHS employees. The Complaint alleged violations of Mr.

Donnell’s Fifth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983

(Counts I, II, and III)1 arising out of Mr. Donnell’s suicide on the third day of his pretrial

detention at the Ocean County Jail. Donnell also alleged conspiracy under 42 U.S.C.

1
As clarified by Donnell in her memorandum in opposition to the Ocean County
Defendants’ motion for summary judgment, Count I, brought against all defendants,
alleged “deliberate indifference to [Mr. Donnell’s] serious medical needs and . . . failure
to provide [Mr. Donnell] essential supervision, medication and/or medical care.” (A. 78.)
Counts II and III alleged that Ocean County, the Ocean County Department of
Corrections, and CHS “fail[ed] to detain [Donnell] in a[n] adequately designed cell” and
“fail[ed] to train or adequately supervise their employees to ensure the constitutional
rights of inmates are not violated by the actions of its employees or agents.” (Id.)
2
§ 1985 (Count IV), in addition to violations of the New Jersey Constitution (Count V),

and a number of state tort claims (Counts VI, VII, VIII, and IX).

On September 8, 2009, less than two months after Donnell initiated this litigation,

the County of Ocean, the Ocean County Department of Corrections, the warden, and the

correctional officers (collectively, the “Ocean County Defendants”) moved for summary

judgment. On December 15, 2009, the District Court granted summary judgment in favor

of all defendants. It appears that the District Court believed that all defendants in the

action, including CHS – the independent contractor providing medical services at the

Ocean County Jail – and its employees (collectively, the “CHS Defendants”), had moved

for summary judgment. With respect to Donnell’s § 1983 claims, the District Court

concluded that “[w]hile . . . there is no dispute as to whether the Defendants acted under

color of state law” (A. 7), Donnell had failed to present sufficient evidence to create a

genuine issue of material fact as to whether defendants had violated Mr. Donnell’s

constitutional rights.

On December 29, 2009, Donnell filed a motion for reconsideration. Pertinent to

this appeal, Donnell argued that the District Court had made a clerical error in granting

summary judgment in favor of the non-moving CHS Defendants and requested that all

nine counts be reinstated against them. Donnell additionally argued that the District

Court had erred in granting summary judgment in favor of the CHS Defendants on the

state tort claims on the ground that Donnell had failed to comply with the notice of claim

requirements of the New Jersey Tort Claims Act (“NJTCA”). Donnell argued that those

3
requirements apply only to public entities and public employees – not private actors like

the CHS Defendants.

The District Court granted in part and denied in part Donnell’s motion for

reconsideration. As relevant here, the District Court initially noted that Donnell’s federal

claims (Counts I, II, III, and IV) were dismissed as to all defendants. Addressing

Donnell’s request that all nine counts be reinstated against the non-moving CHS

Defendants, the District Court in a footnote observed that “in light of the fact that 42

U.S.C. § 1983 claims require a state actor, the acts of the seven non-public entities could

not constitute a § 1983 violation.” (A. 19 n.1.) The District Court went on to clarify its

disposition of the state tort claims. Because, as Donnell noted in her motion for

reconsideration, the notice of claim requirements under the NJTCA do not apply to tort

claims against independent contractors, the District Court revised its earlier dismissal of

the state tort claims (Counts VI, VII, VIII, and IX) as to all defendants, dismissing the

claims only as to the Ocean County Defendants. Having dismissed all of Donnell’s

federal claims, the District Court declined to exercise supplemental jurisdiction over the

state tort claims against the CHS Defendants, and the claim under the New Jersey

Constitution (Count V) against all defendants.

Donnell appeals the orders granting summary judgment and granting and denying

in part her motion for reconsideration insofar as they concern the CHS Defendants and

4
the District Court’s decision to decline exercise of supplemental jurisdiction.2 Donnell

challenges the District Court’s assertion that the CHS Defendants could not qualify as

“state actors” against whom Donnell could pursue a cause of action under § 1983.

Donnell argues that the CHS Defendants acted under color of state law in treating

Donnell, and asserts that she has stated a valid cause of action under § 1983 against them.

Donnell accordingly requests that the Court reinstate the § 1983 claims (Counts I, II, and

III) against the CHS Defendants, as well as the state law claims over which the District

Court declined to exercise supplemental jurisdiction after it dismissed the federal claims,

namely, the state tort claims (Counts VI, VII, VIII, and, IX) against the CHS Defendants,

and the claim under the New Jersey Constitution (Count V) against all defendants.

II.

The District Court had jurisdiction over Donnell’s federal law claims pursuant to

28 U.S.C. §§ 1331 and 1343, and over her state law claims pursuant to 28 U.S.C.

§ 1367(a). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s order granting summary judgment. Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010). “We review a denial of a

2
Donnell does not challenge the District Court’s determination that she failed to
present sufficient evidence to defeat the Ocean County Defendants’ summary judgment
motion on her federal law and state tort claims. Nor does she challenge the District
Court’s denial of her motion for reconsideration insofar as it concerned the federal law
and state tort claims asserted against the Ocean County Defendants. Thus, we need not
address those aspects of the District Court’s rulings. The only relief that Donnell seeks
on this appeal in relation to the Ocean County Defendants is the reinstatement of her state
constitutional claim against them in the event that the dismissal of the federal law claims
against the CHS Defendants is reversed. Finally, Donnell does not seek reinstatement of
the § 1985 claim against the CHS Defendants presented in Count IV.
5
motion for reconsideration for abuse of discretion, but we review the District Court’s

underlying legal determinations de novo and factual determinations for clear error.”

Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010)

(citation omitted).

Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c)(2) (2009).3 District courts may grant summary judgment sua sponte in

appropriate circumstances. Gibson v. Mayor & Council of Wilmington, 355 F.3d 215,

222 (3d Cir. 2004). A court may not enter judgment, however, without “first placing the

adversarial party on notice that the court is considering a sua sponte summary judgment

motion” and providing that party “an opportunity to present relevant evidence in

opposition to that motion.” Chambers Dev. Co. v. Passaic Cnty. Utils. Auth., 62 F.3d

582, 584 n.5 (3d Cir. 1995). Notice is satisfied if “the targeted party had reason to

believe the court might reach the issue and received a fair opportunity to put its best foot

forward.” Gibson, 355 F.3d at 223 (quoting Leyva v. On the Beach, Inc., 171 F.3d 717,

720 (1st Cir. 1999)) (internal quotation marks omitted). We have recognized an

exception to the notice requirement in cases where summary judgment is granted sua

sponte where the following conditions are present: “(1) the point at issue is purely legal;

3
We note that despite the recent amendments to Rule 56(c), “[t]he standard for
granting summary judgment remains unchanged.” Fed. R. Civ. P. 56 Advisory
Committee Notes, 2010 Amendments.
6
(2) the record was fully developed[;] and (3) the failure to give notice does not prejudice

the party.” Gibson, 355 F.3d at 219. We, however, have not yet decided whether a sua

sponte grant of summary judgment would be appropriate in a case where some but not all

three conditions are present. Id. at 224.

III.

The record does not indicate that the District Court gave any notice to Donnell

before granting summary judgment sua sponte in favor of the CHS Defendants.4 Nor do

we think that the Ocean County Defendants’ motion for summary judgment put Donnell

on notice of the possibility that summary judgment might also be granted in favor of the

CHS Defendants. Indeed, Donnell’s memorandum in opposition, styled “Plaintiff’s

Memorandum of Points and Authorities In Opposition To The Summary Judgment

Motion of [the Ocean County Defendants],” exclusively addressed whether the Ocean

County Defendants were entitled to summary judgment, indicating that Donnell was not

on notice that the District Court would also be contemplating a grant of summary

judgment in favor of the CHS Defendants.

4
Because it appears that the District Court believed that all defendants in the
action had moved for summary judgment, its order directing entry of summary judgment
in favor of the CHS Defendants was more likely a clerical error, as opposed to a sua
sponte determination. However, after being made aware by Donnell’s motion for
reconsideration that not all defendants had moved for summary judgment, the District
Court nonetheless reiterated in the order disposing of the motion for reconsideration that
it was dismissing the federal claims as to all defendants. We consequently construe the
District Court’s grant of summary judgment to the CHS Defendants as one made sua
sponte.
7
 Furthermore, none of the three conditions that would permit us to waive the notice

requirement are present in this case. First, the decision to grant summary judgment was

not based on a “purely legal” issue.5 A plaintiff in a pretrial detainee prison suicide case

must establish each of the following three elements to establish a violation of due

process: “(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.”6 Colburn v.

5
As noted above, in the order granting in part and denying in part Donnell’s
motion for reconsideration, the District Court observed that “in light of the fact that 42
U.S.C. § 1983 claims require a state actor, the acts of the seven non-public entities could
not constitute a § 1983 violation.” (A. 19 n.1.) We believe that this statement may be
interpreted in two ways. The District Court may have meant that because the CHS
Defendants are private entities, they could not be state actors for the purposes of § 1983.
Certainly, a dismissal of the § 1983 claims against the CHS Defendants on such a basis
would have been improper. Section 1983 authorizes claims alleging the deprivation of
federal rights against every “person” acting “under color of” state law, 42 U.S.C. § 1983,
and it is well-settled that private actors may be regarded as acting under color of state
law. Alternatively, the District Court may have meant that the CHS Defendants were not
acting under color of state law, and thus could not be liable under § 1983. This
conclusion would also be erroneous; we do not think there is any dispute that the CHS
Defendants, though not directly employed by the state, acted under color of state law in
providing medical services to Mr. Donnell at the Ocean County Jail. See West v. Atkins,
487 U.S. 42, 54 (1988) (“[A] physician employed by [a state] to provide medical services
to state prison inmates[] act[s] under color of state law for purposes of § 1983 when
undertaking his duties in treating [a prisoner’s] injury.”). Notably, the CHS Defendants
on appeal do not even argue that they were not acting under color of state law.
Ultimately, because we find the District Court clearly erred in holding that the CHS
Defendants were not state actors who could be held liable under § 1983, for the purposes
of our analysis we assume that the District Court granted summary judgment in favor of
the CHS Defendants on the same basis that it granted summary judgment to the Ocean
County Defendants – that Donnell failed to create a genuine issue of material fact as to
the asserted liability of the CHS Defendants on her § 1983 claims.
6
We note that because Mr. Donnell was a pretrial detainee and not a convicted
prisoner, Donnell’s § 1983 claims are cognizable under the Due Process Clause of the
8
Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (internal quotation marks

omitted). Certainly, whether Mr. Donnell had a particular vulnerability to suicide,

whether the individual CHS Defendants knew or should have known of the vulnerability,

and whether the individual CHS Defendants acted with reckless indifference to that

vulnerability require a fact-intensive assessment of the record. Consequently, the failure

to provide Donnell notice that the District Court was considering summary judgment in

favor of the individual CHS Defendants cannot be waived on the basis that summary

judgment in their favor involved the resolution of purely legal issues.

In this regard, we have recognized a distinction between corrections defendants

and health care defendants in the context of claims involving indifference to an inmate’s

health care issues. Thus, for example, in Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.

2004), and Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993), we sustained the

dismissal of corrections defendants but reversed the dismissal of health care defendants in

the context of claims asserting that both types of defendants had been deliberately

indifferent to the inmate’s health care needs. As we explained in Spruill:

If a prisoner is under the care of medical experts . . . , a non-
medical prison official will generally be justified in believing
that the prisoner is in capable hands. This follows naturally
from the division of labor within a prison. Inmate health and
safety is promoted by dividing responsibility for various
aspects of inmate life among guards, administrators,

Fourteenth Amendment, as opposed to the Cruel and Unusual Punishment Clause of the
Eighth Amendment. See Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987)
(“Pretrial detainees are not within the ambit of the Eighth Amendment but are entitled to
the protections of the Due Process clause.”).
9
 physicians, and so on. Holding a non-medical prison official
liable in a case where a prisoner was under a physician’s care
would strain this division of labor. Moreover, under such a
regime, non-medical officials could even have a perverse
incentive not to delegate treatment responsibility to the very
physicians most likely to be able to help prisoners, for fear of
vicarious liability.

Spruill, 372 F.3d at 236. Where, as here, the record suggests that the prison delegated to

a private company the responsibility of conducting medical assessments of newly-

admitted inmates, it may be that corrections defendants could not have the requisite

culpable state of mind, while the health care professionals could be found liable.

Thus, the fact that the plaintiff cannot show the requisite state of mind with respect

to corrections defendants does not mean that the plaintiff would be unable to present a

triable issue of fact as to health care defendants. In this case, Donnell did not have the

opportunity (or need) to marshal her evidence as to the CHS Defendants, who answered

the Complaint, participated in discovery, and did not join the Ocean County Defendants’

summary judgment motion.

Second, we cannot conclude that the record here was fully developed. On October

23, 2009, the District Court issued an “Initial Scheduling Order,” which required

discovery to be completed by December 31, 2009. The District Court granted summary

judgment on December 15, 2009, approximately two weeks prior to the discovery

deadline. Although the record fails to make clear the exact status of discovery between

the CHS Defendants and Donnell at the time of the grant of summary judgment,

according to Donnell, discovery was ongoing with five CHS parties – CHS, Dr. Donato J.

10
Santangelo, Dr. Michelle Gaito, Maria Alicea, and Carmen Thomas, but had not yet

begun with the remaining two CHS parties – Debbie Filarski and Kathy Petrowsky

(apparently due to the fact that Filarski had never filed an answer, and Donnell had been

unable to effect service on Petrowsky). Furthermore, it appears that Donnell had not

obtained any discovery from the Ocean County Defendants prior to the entry of summary

judgment.7 In light of the incomplete state of discovery, we are unable to conclude that

the District Court granted summary judgment in favor of the non-moving CHS

Defendants on anything other than a notably undeveloped record.

Third, we cannot conclude that the failure to give Donnell notice that the District

Court was considering a sua sponte grant of summary judgment did not prejudice

Donnell. Again, the issue of whether the individual CHS Defendants violated Mr.

Donnell’s due process rights involves highly fact-specific inquiries, and there is no

indication that the factual record was fully developed below. With notice and an

opportunity to oppose the grant of summary judgment in favor of the CHS Defendants,

Donnell could have presented facts indicating a genuine issue for trial as to the § 1983

7
As part of her motion for reconsideration, Donnell requested that the District
Court reinstate Counts I, II, and III of the Complaint against the Ocean County
Defendants to allow Donnell an opportunity to conduct discovery. The District Court
denied Donnell’s request on the ground that she had failed to file an affidavit under Rule
56(f) identifying “with specificity what particular information is sought; how, if
uncovered, it would preclude summary judgment; and why it has not previously been
obtained.” Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002) (internal quotation
marks omitted). Inasmuch as we find that Donnell did not have notice of the possible
grant of sua sponte summary judgment in favor of the CHS Defendants, Donnell’s failure
to comply with Rule 56(f) with respect to the Ocean County Defendants’ motion for
summary judgment is of no consequence to our conclusion that the record below was not
fully developed.
11
liability of the individual CHS Defendants. Indeed, if Donnell possessed sufficient

evidence to raise a triable issue of fact on the § 1983 liability of the individual CHS

Defendants, she “was under no formal compulsion to marshal[] . . . [that] evidence,”

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir. 1990), in a response to

the Ocean County Defendants’ motion for summary judgment. Furthermore, to the

extent Donnell did not possess sufficient evidence to create a triable issue of fact on the

§ 1983 liability of the individual CHS Defendants, we cannot be sure that further

discovery from CHS and its employees would not have yielded such evidence.

Consequently, we cannot rule out the possibility that Donnell was not prejudiced by the

entry of summary judgment in favor of the CHS Defendants.

Accordingly, we conclude that because Donnell did not have “reason to believe

the court might reach the issue” and did not “receive[] a fair opportunity to put [her] best

foot forward[,]” Gibson, 355 F. 3d at 223 (quoting Leyva, 171 F.3d at 720) (internal

quotation marks omitted), and because none of the recognized exceptions to the notice

requirement are applicable, the District Court erred in granting summary judgment sua

sponte in favor of the CHS Defendants.

IV.

For the foregoing reasons, we will affirm the grant of summary judgment in favor

of the Ocean County Defendants on Donnell’s federal claims (Counts I, II, III, and IV)

and state tort claims (Counts VI, VII, VIII, and IX), affirm the grant of summary

judgment in favor of the CHS Defendants on Donnell’s § 1985 claim (Count IV), vacate

12
the grant of summary judgment in favor of the CHS Defendants on Donnell’s § 1983

claims (Counts I, II, and III), and remand for further proceedings. Additionally, because

we will reverse the grant of summary judgment in favor of the CHS Defendants on

Donnell’s § 1983 claims, we will also reverse the dismissal for lack of supplemental

jurisdiction over the state tort claims (Counts VI, VII, VIII, and IX) against the CHS

Defendants and the New Jersey Constitution claim (Count V) against both the CHS

Defendants and the Ocean County Defendants. On remand, the District Court should

reevaluate whether to exercise supplemental jurisdiction over these state law claims.

13