Renee Palakovic v. John Wetzel

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 16-2726
_____________

RENEE PALAKOVIC, as Administrator of the Estate of
Brandon Palakovic;
DARIAN PALAKOVIC, as Administrator of the Estate
of Brandon Palakovic,
Appellants

v.

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
 _____________

On 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
_____________

Argued January 12, 2017

Before: SMITH, Chief Judge, JORDAN, and
SHWARTZ, Circuit Judges

(Filed: April 14, 2017)

Bret Grote [ARGUED]
Abolitionist Law Center
P.O. Box 8654
Pittsburgh, PA 15221

Michael J. Healey
Healey & Hornack
247 Fort Pitt Boulevard
4th Floor
Pittsburgh, PA 15222

Counsel for Appellants
2
Howard G. Hopkirk [ARGUED]
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120

Counsel for Corrections Officials Appellees

Alan S. Baum
Cassidy L. Neal [ARGUED]
Matis Baum & O’Connor
444 Liberty Avenue
Suite 300, Four Gateway Center
Pittsburgh, PA 15222

Counsel for Appellees Dr. Daleep Rathore,
Dr. Carol Eidsvoog, and MHM, Inc.

Witold J. Walczak
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213

Counsel for Amicus Appellants

________________

OPINION
________________
3
SMITH, Chief Judge.

Brandon 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 dismissals.

I.

The following allegations appear in the amended
complaint.1 Brandon Palakovic2 was convicted of

1
The allegations of the original complaint are consistent
with the allegations of the amended complaint but
provide fewer details. Where appropriate in our
discussion of the specific claims raised in the original
complaint, we have relied upon the allegations as set
forth in the original, rather than the amended, complaint.
2
For purposes of clarity, and intending no disrespect, we
refer throughout this opinion to Brandon Palakovic by his
4
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 screening.

Brandon 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. 653, 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 health roster.

first name and to his parents, the plaintiffs, as the
Palakovics.
3
“J.A.” refers to the parties’ Joint Appendix.
5
 Brandon 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. 82.
According 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 treatments.

The 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,
6
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.”4 J.A. 68 (footnote
omitted).

During 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.

4
Neither the original complaint nor the amended
complaint specifies the amount of time Brandon spent in
solitary confinement during his 13-month incarceration at
SCI Cresson, describing his stays there as “numerous,”
“repeated,” and “multiple.” See, e.g., J.A. 69.
7
 According 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. 78–79.
Notably, 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
8
prisoners.” J.A. 79; Department of Justice May 31, 2013
Findings Letter, https:// www.justice.gov/sites/
default/files/crt/legacy/2013/06/03/cresson_findings_5-
31-13.pdf (last visited April 4, 2017).

Among 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 Report.
Brandon committed suicide on July 16, 2012,
while in solitary confinement. He was 23 years old.

II.

As 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
9
District of Pennsylvania, naming a number of prison
officials and mental healthcare providers.5 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.6 The defendants filed motions under Rule

5
Specifically, the original complaint named John Wetzel
(Secretary of the Pennsylvania DOC), Kenneth Cameron
(SCI Cresson’s Superintendent), Jamie Boyles (SCI
Cresson’s Deputy Superintendent for Facilities
Management), Jamey Luther (SCI Cresson’s Deputy
Superintendent for Centralized Services), Dr. James
Harrington (SCI Cresson’s Chief Psychologist), Dr.
Daleep Rathore (MHM employee and head of psychiatric
care at SCI Cresson), Michelle Houser (Unit Manager in
SCI Cresson’s Secure Special Needs Unit and Special
Needs Unit), Morris Houser (Manager of SCI Cresson’s
Mental Health Unit), Francis Pirozzola (SCI Cresson’s
Security Captain), Shawn Kephart (Pennsylvania DOC’s
Director of the Treatment Services Bureau), MHM (the
company under contract with the Pennsylvania DOC to
provide mental healthcare services at SCI Cresson), and
six John Doe defendants.
6
The constitutional claims initially were brought
pursuant to the Eighth and Fourteenth Amendments, but
10
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 June 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.”7
Palakovic v. Wetzel, No. 3:14-cv-145, 2015 WL
3937499, at *4 (W.D. Pa. June 26, 2015) (First

later court filings clarified that the Palakovics were
pursuing claims under the Eighth Amendment only. The
Palakovics also presented an Americans with Disabilities
Act claim and two state law claims; the resolution of
those claims is not at issue in this appeal.
7
Although the District Court declared that “even if the
vulnerability to suicide standard were inapplicable to
either of Plaintiffs’ two Eighth Amendment claims, the
result would be the same,” First Dismissal, 2015 WL
3937499 at *4, it did not elaborate upon this statement.

11
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.
On 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.8 They also pled an Eighth Amendment
“failure to train” claim against the supervisory officials.9

8
Count I against SCI Cresson mental health personnel
(Drs. Harrington, Rathore, and Eidsvoog; Dr. Eidsvoog
had not been named in the original complaint); Count II
against corrections officers (Reed, Kushner, Dous,
Boyles, and Luther; Reed, Kushner, and Dous had not
been named in the original complaint); Count III against
supervisory officials (Wetzel, Cameron, Boyles, and
Luther); and Count V against MHM.
9
The amended complaint also set forth claims for
medical neglect, discrimination on the basis of disability,
wrongful death, and a survival action. The disposition of
those claims is not relevant to this appeal. The amended
complaint did not name several of the officials that had
been named in the original complaint—specifically,
12
 Two 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.10 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.

Michelle Houser, Morris Houser, Francis Pirozolla,
Shawn Kephart, and the six John Does.
10
Defendants Dous, Reed, and Kushner were not served
and did not file a motion to dismiss.
13
 III.
A.

The 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 952.11

11
Rule 41(a)(1)(B) of the Federal Rules of Civil
Procedure provides that a voluntary dismissal is without
prejudice, unless the order states otherwise. Where a
dismissal is without prejudice, the judgment may not be
final and appealable under 28 U.S.C. § 1291. See
Borelli, 532 F.2d at 951. Here, the voluntary dismissal
order was silent as to whether the claims against
Kushner, Reed, and Dous were dismissed with prejudice.
At oral argument, however, counsel for the Palakovics
clarified that the dismissal was with prejudice and that
the Palakovics have abandoned all claims against
Kushner, Reed, and Dous. This is sufficient to render the
voluntary dismissal final for purposes of appeal.

14
 B.
We 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).

“A 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
15
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 Cir. 2010)).

C.
The 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.
In 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
16
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,12 they have not waived those
claims. We may therefore review the District Court’s
First Dismissal.
In 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.

12
The Palakovics could have more clearly preserved their
original claims by “specifically refer[ring] to or
adopt[ing]” them in the amended complaint. W. Run.
Student Hous. Assocs., 712 F.3d at 171.
17
 Here, 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.

We 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.13

13
In contrast with theories dismissed by a legal ruling,
parties voluntarily dropped from an amended complaint
18
 IV.
Before 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.

do not remain in the case. See Atkinson, 473 F.3d at 518
(“It would be unjust under these circumstances to enable
[plaintiff] to drag [a defendant] back into this case after
[that defendant], by [plaintiff’s] own decision, was
dropped as a defendant.”). Accordingly, the claims
asserted against the four defendants named in the original
complaint who were dropped from the amended
complaint (Michelle Houser, Morris Houser, Francis
Pirozzola, and Shawn Kephart) are waived and may not
be challenged on appeal. We will not consider any
claims in the original complaint as they applied to those
four defendants.

19
 In 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 obligation to protect her against that risk. Id. The
District Court granted the officials’ motion to dismiss for
failure to state a claim. Id.

We reversed.14 We first examined cases holding
that inmates who had been victims of violence by other
inmates could bring claims under the Eighth Amendment
against their custodians where those custodians
deliberately or recklessly disregarded the risk to those
inmates’ safety. Id. at 667–68. We reasoned that such

14
Because Colburn I was decided long before Iqbal and
Twombly, we applied the standard of review then in
effect: taking all well-pleaded allegations as true, we
construed the complaint in a light most favorable to the
plaintiff and determined whether there was a reasonable
reading of the pleadings under which she may be entitled
to relief. Colburn I, 838 F.2d at 665–66 (citing Estate of
Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d
Cir. 1985)).
20
cases can be analogized to the scenario in which the acts
causing the injury to the prisoner are those of the prisoner
herself. Id. at 668. We further concluded that the
fundamental protections afforded to prisoners under the
Eighth Amendment, like personal security, are also
afforded to pre-trial detainees. Id. Although the Eighth
Amendment does not apply directly to pre-trial detainees,
see Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000),
we concluded that the Due Process Clause of the
Fourteenth Amendment provides pre-trial detainees at
least as much protection for personal security as the level
guaranteed to prisoners by the Eighth Amendment.
Colburn I, 838 F.2d at 668.
We recognized that it would be inappropriate to
place custodial officials in a position in which they must
guarantee that an inmate will not commit suicide. Id. at
669. We decided, however, that this consideration
should not preclude the possibility of a § 1983 cause of
action:
Of course we agree that custodial officials
cannot be placed in the position of
guaranteeing that inmates will not commit
suicide. On the other hand, if such officials
know or should know of the particular
vulnerability to suicide of an inmate, then
the Fourteenth Amendment imposes on
them an obligation not to act with reckless
indifference to that vulnerability.
21
Id. at 669. Because Colburn adequately alleged that the
defendants in her case acted with such reckless
indifference, we held that Colburn could—and did—state
a § 1983 claim against prison officials for their failure to
prevent Melinda’s suicide. Id. at 670–71.
After remand and a period of discovery, the
District Court granted summary judgment in the prison
officials’ favor. The matter then returned to this Court
via a second appeal. Colburn II, 946 F.2d 1017.
In Colburn II, we recognized that “Colburn I
established the standard of liability to be applied in this
circuit in prison suicide cases.” Id. at 1023. We
explained that the vulnerability to suicide framework is
simply a more specific application of the general rule set
forth in Estelle v. Gamble, 429 U.S. 97, 104 (1976),
which requires that prison officials not be deliberately
indifferent to the serious medical needs of prisoners. In
essence, a “particular vulnerability to suicide” is just one
type of “serious medical need.” Colburn II, 946 F.2d at
1023.
We then examined more closely what it means to
have a “particular vulnerability to suicide.” We observed
that an individual’s particular vulnerability to suicide
“speaks to the degree of risk inherent in the detainee’s
condition.” Id. at 1024. That degree of risk must be a
“strong likelihood, rather than a mere possibility, that
self-inflicted harm will occur.” Id. (citations omitted).
22
We explained that a detainee’s “strong likelihood” of
suicide “must be ‘so obvious that a lay person would
easily recognize the necessity for’ preventative action.”
Id. at 1025 (citing Monmouth Cty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
In addition to the particular vulnerability of the
detainee, we also required a relatively high level of
culpability on the part of prison officials before holding
them accountable, i.e., reckless or deliberate indifference
to that “strong likelihood” of suicide. We declined to
precisely define these terms, instead observing that
liability may attach only where the officials’ culpability
is something beyond mere negligence. Colburn II, 946
F.2d at 1024–25. We noted other situations in which
custodians had been found to “know” of a particular
vulnerability to suicide—including, for example, where
“they have had actual knowledge of an obviously serious
suicide threat, a history of suicide attempts, or a
psychiatric diagnosis identifying suicidal propensities.”
Id. at 1025 n.1.
Applying these principles in Colburn II, we
determined that Colburn failed to establish a violation of
Melinda’s Fourteenth Amendment right to Due Process
based upon prison officials’ deliberate indifference to her
particular vulnerability to suicide. Viewing the
developed record in the light most favorable to Colburn,
a rational trier of fact could have concluded only that,
upon her arrest, prison officials knew or should have
23
known that Melinda was intoxicated, had had an
argument with her boyfriend, had tried to ingest three
pills, had a bullet in her pocket, and had faint scars on her
forearm. Id. at 1026–27. Given these facts, we upheld
the District Court’s determination that, as a matter of law,
Melinda’s particular vulnerability was not sufficiently
obvious to hold the prison officials accountable for
failing to prevent her suicide. Id. at 1027.
Finally, we revisited this framework in Woloszyn
v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005). In
that case, Richard Lee Woloszyn was arrested for
attempted burglary and was taken into police custody.
Id. at 316. Several hours later, he was found hanging by
his neck in his cell. Id. at 318. His estate filed a § 1983
action seeking to hold prison officials accountable for
failing to prevent the suicide. Id. at 318–19. After
discovery, the District Court granted summary judgment
in favor of the prison officials. Id. at 319.
On appeal, we first considered the culpability
element set forth in Colburn I and Colburn II—i.e., that
officials “knew or should have known” of a strong
likelihood of suicide. As we did in the Colburn cases, we
once again recognized that while Eighth Amendment
standards do not directly control in pretrial detainee
cases, the “deliberate indifference” standard that applies
to officials under the Eighth Amendment probably is the
“equivalent” to the “should have known” element in a
vulnerability to suicide case involving a detainee.
24
Woloszyn, 396 F.3d at 321. To the extent the issue
remained open, we opted not to conclusively resolve it
because we determined that the developed record was
devoid of evidence of Woloszyn’s “particular
vulnerability to suicide.” Id. at 321–22.
Among other things, the record demonstrated that
Woloszyn had been in good spirits and had specifically
denied being suicidal. Id. at 322. While there was one
witness who testified that Woloszyn had been remorseful
and distant and had discussed both a recent drug and
alcohol binge and his feelings of failure as a father, the
court concluded that “such statements, without more, are
[not] sufficient to create a genuine issue of material fact
regarding knowledge of Woloszyn’s vulnerability to
suicide. They do not show that there was ‘a strong
likelihood, rather than a mere possibility, that self-
inflicted harm will occur.’” Id. at 322–23. We therefore
affirmed the District Court’s grant of summary judgment
in favor of the defendants.
***
In sum, our case law teaches that, when a plaintiff
seeks to hold a prison official liable for failing to prevent
a detainee’s suicide, a pre-trial detainee may bring a
claim under the Due Process Clause of the Fourteenth
Amendment that is essentially equivalent to the claim
that a prisoner may bring under the Eighth Amendment.
Thus, whether a pre-trial detainee or a convicted
25
prisoner, 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.15 We must now
consider the application of these principles, where
appropriate, to Brandon Palakovic’s circumstances.
V.

A.
Returning to the first constitutional claim
presented in the original complaint, “Plaintiffs contend
that Defendants were deliberately indifferent by placing
[Brandon] in solitary confinement, given his mental
health vulnerabilities, which deprived him of basic
human needs of environmental stimulation, social

15
In Colburn II, we did not precisely define the terms
“deliberate indifference” or “reckless indifference,”
concluding that, whichever formulation is employed, it
indicates a level of culpability beyond mere negligence.
946 F.2d at 1024. We once again do not find it necessary
to parse these phrases to determine whether there is some
distinction between them.
26
interaction, mental health, and physical health.” First
Dismissal, 2015 WL 3937499 at *4. Considering this
claim, the District Court determined “that this case
involves a prison suicide and that the ‘vulnerability to
suicide’ standard used by courts in this Circuit applies to
Plaintiffs’ allegations.” Id. It concluded that the original
complaint failed to state a claim because it did not allege
facts sufficient to satisfy any of the three prongs of a
vulnerability to suicide claim.16 Id. at *5–6.

16
The District Court reasoned: “First, Plaintiffs have not
alleged facts showing that [Brandon] had a particular
vulnerability to suicide” because the complaint was
“devoid of any factual allegations that there was a strong
likelihood that self-inflicted harm would occur.” First
Dismissal, 2015 WL 3937499 at *5. Next, the District
Court concluded that “Plaintiffs have not alleged facts
showing that Defendants knew or should have known
about [Brandon’s] particular vulnerability to suicide.” Id.
The District Court observed, for example, that “nowhere
do Plaintiffs allege that any of the Defendants had any
knowledge of [Brandon’s] history of suicide attempts or
suicidal thoughts. There are no allegations in the
complaint that [Brandon] attempted suicide while at the
prison or made his suicidal thoughts or tendencies known
to Defendants.” Id. at *6. Finally, the District Court
concluded that the complaint failed to allege facts
27
 The Palakovics have consistently argued that this
claim should not have been considered through the lens
of the vulnerability to suicide framework. They sought
to hold prison officials accountable for injuries that
Brandon experienced during his periods of isolation in
solitary confinement while he was alive, not to hold
officials accountable (at least, not directly accountable)
for failing to prevent his death. Their claim was
independent of a particular vulnerability to suicide on
Brandon’s part.

To at least some degree, the District Court was
persuaded to apply the vulnerability to suicide framework
to the Palakovics’ claims because of our language in
Colburn II that “Colburn I established the standard of
liability to be applied in this circuit in prison suicide
cases.” Colburn II, 946 F.2d at 1023. We clarify today
that this statement indicates that the vulnerability to
suicide framework applies when a plaintiff seeks to hold
prison officials accountable for failing to prevent a prison
suicide. It does not, however, preclude other types of
claims, even if those claims also relate to an individual
who committed suicide while in prison.

Here, to the extent Brandon could have brought an
Eighth Amendment claim contesting his conditions of

showing that the defendants were deliberately indifferent
to any vulnerability. See id.

28
confinement while he was alive, his family should not be
precluded from doing so because he has passed away.
We agree with the Palakovics that their original claim
need not have to fit within the vulnerability to suicide
framework, and the District Court erred in dismissing it
solely for that reason.

B.
A claim of inhumane prison conditions may rise to
the level of an Eighth Amendment violation where the
prison official “deprived the prisoner of the minimal
civilized measure of life’s necessities” and “acted with
deliberate indifference in doing so, thereby exposing the
inmate to a substantial risk of serious damage to [his]
future health.” Parkell v. Danberg, 833 F.3d 313, 335
(3d Cir. 2016) (quoting Chavarriaga v. N.J. Dep’t of
Corr., 806 F. 3d 210, 226 (3d Cir. 2015)).

The original complaint alleged that several
defendants were either responsible for Brandon’s
repeated placement in solitary confinement or indirectly
responsible through policies and practices that led to his
repeated confinement there.17 For instance, the

17
A supervisor may be directly liable under the deliberate
indifference test set forth in Farmer v. Brennan, 511 U.S.
825 (1994), if the supervisor “knew or w[as] aware of
and disregarded an excessive risk to the plaintiff[’s]
health or safety[.]” Beers-Capitol v. Whetzel, 256 F.3d
29
Palakovics alleged that supervisory officials Wetzel,
Cameron, Boyles, Luther, and Harrington “all upheld
policies and practices [at SCI Cresson] of sentencing
prisoners to solitary confinement based on behavior that
was caused by mental illness and intellectual disability.”
J.A. 18. In addition, Wetzel, Cameron, Boyles and
Luther had responsibility for, among other things,
disciplinary proceedings and punishment and policies
pertaining to the use of solitary confinement. Finally,
Boyles and Luther were members of the “Program
Review Committee,” which was directly responsible “for
oversight of the RHU, including review of the
appropriateness of placement in the RHU for individual
prisoners.” J.A. 25–26.
The next question, then, is whether those
defendants with responsibility for Brandon’s placement
in solitary confinement were alleged to have sufficient

120, 135 (3d Cir. 2001). A plaintiff “can show this by
establishing that the risk was obvious.” Id. There is
some question as to whether a supervisor may be held
indirectly liable for deficient policies under Sample v.
Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)), as the
Supreme Court may have called the so-called Sample test
into question in Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Because the Palakovics have plausibly alleged a claim
based on direct supervisory liability, we need not
consider the unresolved nature of the Sample test today.
30
knowledge that the conditions there were inhumane for
him in light of his mental illness. Before we turn to the
Palakovics’ particular allegations, we first acknowledge
the robust body of legal and scientific authority
recognizing the devastating mental health consequences
caused by long-term isolation in solitary confinement. In
our recent decision, Williams v. Secretary of the
Pennsylvania Department of Corrections, 848 F.3d 549
(3d Cir. 2017), we observed a growing consensus—with
roots going back a century—that conditions like those to
which Brandon repeatedly was subjected can cause
severe and traumatic psychological damage, including
anxiety, panic, paranoia, depression, post-traumatic stress
disorder, psychosis, and even a disintegration of the basic
sense of self identity.18 Id. at 566–67. And the damage

18
While Williams addressed Due Process claims brought
by death row inmates, the conditions on death row there
mirror in many respects those of the RHU as described in
the Palakovics’ amended complaint, including enclosure
in a small windowless cement cell for the majority of
each day, severely limited social contact, and little
exercise or exposure to fresh air. See Williams, 848 F.3d
at 554–55, 563. In Williams, we determined that
indefinite confinement in such conditions, when the
initial justification for the confinement ceased to exist,
caused an atypical and significant hardship relative to the
ordinary incidents of prison life, thereby giving rise to a
protected liberty interest. Id. at 561–64.
31
does not stop at mental harm: “Physical harm can also
result. Studies have documented high rates of suicide
and self-mutilation amongst inmates who have been
subjected to solitary confinement. These behaviors are
believed to be maladaptive mechanisms for dealing with
the psychological suffering that comes from isolation.”
Id. at 567–68 (citations omitted). Against this backdrop
of the extremely serious and potentially dire
consequences of lengthy exposure to the conditions of
solitary confinement, we turn to the sufficiency of the
Palakovics’ claim that prison officials who were aware of
his history of mental illness permitted Brandon to be
repeatedly exposed to inhumane conditions of
confinement and acted with deliberate indifference in
doing so.

The original complaint adequately alleged that the
prison diagnosed Brandon with an array of serious
mental health issues and placed him on a mental health
roster, making it quite reasonable to infer that prison
officials had (or should have had) knowledge of those
diagnoses. The complaint further alleged that Wetzel
and his subordinates were aware that the conditions of
solitary confinement “cause severe psychological harm,
exacerbate pre-existing mental health problems, and
generated the majority of suicides, suicide attempts, and
acts of self-harm at SCI Cresson and throughout the
entire [Pennsylvania DOC].” J.A. 15. While perhaps a
somewhat conclusory allegation on its own, this was
32
buttressed by allegations of the officials’ specific
awareness of suicides and instances of self-harm that had
occurred just before Brandon’s confinement, and was
underscored by the Department of Justice’s announced
investigation, which it conducted for the express purpose
of determining whether SCI Cresson routinely subjected
mentally ill prisoners (like Brandon) to unnecessarily
harmful conditions of confinement.
Considering these factual allegations in light of the
increasingly obvious reality that extended stays in
solitary confinement can cause serious damage to mental
health, we view these allegations as more than sufficient
to state a plausible claim that Brandon experienced
inhumane conditions of confinement to which the prison
officials—Wetzel, Cameron, Boyles, Luther, and
Harrington—were deliberately indifferent.19 We
therefore conclude that the District Court should have
allowed this claim to proceed to discovery.20

19
In contrast, we have not identified any allegations that
could plausibly establish that Dr. Rathore or MHM had
any role in Brandon’s placement in solitary confinement.
Accordingly, the claim was properly dismissed as to
these defendants.
20
To the extent the Palakovics attempted to bring any
Eighth Amendment claims against the prison officials in
their official capacities, such claims were properly
33
 C.

dismissed. Official capacity claims are treated as brought
against the State, which is not a “person” under § 1983.
Hafer v. Melo, 502 U.S. 21, 26 (1991). Claims under
§ 1983 may proceed only against the defendants in their
individual capacities. See id. at 31.
34
 We next consider the Palakovics’ claim that all
defendants violated Brandon’s constitutional rights by
providing inadequate mental healthcare treatment.21 In
assessing the Palakovics’ serious medical needs claim,
the District Court first observed that “as explained above,
the complaint has not alleged that [Brandon] had a
particular vulnerability to suicide.” First Dismissal, 2015
WL 3937499 at *8. The District Court went on to
conclude that “the complaint does not allege facts
showing that Defendants were deliberately indifferent to
[Brandon’s] serious medical needs related to his mental
health treatment at the prison,” id., because he received
some mental health care while at SCI Cresson:
“[Brandon] was placed on the prison’s mental health
roster, he was prescribed medication, and he was visited
by mental health staff,” id. at *9.22 We disagree with
both conclusions. Neither the failure to plead a particular
vulnerability to suicide nor the acknowledgment that

21
Specifically, the named defendants were prison
officials Wetzel, Cameron, Boyles, Luther, and
Harrington and medical providers Rathore and MHM.
22
While Brandon’s placement on the mental health roster
appears to signify that he required mental health
treatment, we see no basis for a conclusion that
placement on the prison mental health roster alone is a
form of treatment.

35
Brandon received some mental healthcare during his
incarceration precludes this claim.

The Eighth Amendment prohibits prison officials
from being deliberately indifferent to an inmate’s serious
medical needs.23 Estelle v. Gamble, 429 U.S. 97, 104
(1976). “To act with deliberate indifference to serious
medical needs is to recklessly disregard a substantial risk
of serious harm.” Giles v. Kearney, 571 F.3d 318, 330
(3d Cir. 2009). While we have recognized that a
particular vulnerability to suicide qualifies as a serious
medical need, see Colburn II, 946 F.2d at 1023, a
vulnerability to suicide is not the sole need on which the
Palakovics’ claim was focused. Rather, the Palakovics
sought to hold prison officials and mental healthcare staff
accountable for failing to meet Brandon’s serious need
for mental healthcare.

As masters of their complaint, the Palakovics
wished to bring this claim without regard to Brandon’s
particular vulnerability (or lack thereof) to suicide, and

23
A medical need is serious where it “has been diagnosed
by a physician as requiring treatment” or is “so obvious
that a lay person would easily recognize the necessity” of
medical attention. Monmouth Cty. Corr. Inst. Inmates,
834 F.2d at 347. It is undisputed that the allegations of
the complaint demonstrated that Brandon Palakovic had a
serious need for mental healthcare treatment.

36
instead wished to pursue a more general claim under
Estelle that the SCI Cresson officials were deliberately
indifferent to Brandon’s serious need for adequate mental
healthcare and that this indifference led to injury in the
form of deterioration of Brandon’s condition ultimately
leading to his suicide. In other words, they were, once
again, not attempting to directly claim that the prison
officials should be held liable for failing to prevent
Brandon’s suicide.
Where a prisoner has received some amount of
medical treatment, it is difficult to establish deliberate
indifference, because prison officials are afforded
considerable latitude in the diagnosis and treatment of
prisoners. See Durmer v. O’Carroll, 991 F.2d 64, 67 (3d
Cir. 1993). Allegations of mere negligent treatment or
even medical malpractice do not trigger the protections
of the Eighth Amendment. Estelle, 429 U.S. at 105–06.
“Where a prisoner has received some medical attention
and the dispute is over the adequacy of the treatment,
federal courts are generally reluctant to second guess
medical judgments and to constitutionalize claims which
sound in state tort law.” United States ex rel. Walker v.
Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979)
(internal quotations and citation omitted). Deference is
given to prison medical authorities in the diagnosis and
treatment of patients, and courts “disavow any attempt to
second-guess the propriety or adequacy of a particular
course of treatment . . . [which] remains a question of
37
sound professional judgment.” Inmates of Allegheny Cty.
Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting
Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977))
(alterations in original).

Nonetheless, there are circumstances in which
some care is provided yet it is insufficient to satisfy
constitutional requirements. For instance, prison officials
may not, with deliberate indifference to the serious
medical needs of the inmate, opt for “an easier and less
efficacious treatment” of the inmate’s condition. West v.
Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting
Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).
Nor may “prison authorities deny reasonable requests for
medical treatment . . . [when] such denial exposes the
inmate ‘to undue suffering or the threat of tangible
residual injury.’” Monmouth County Corr. Inst. Inmates,
834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d
857, 860 (6th Cir. 1976)). And, “knowledge of the need
for medical care [may not be accompanied by the] . . .
intentional refusal to provide that care.” Id. (alterations
in original) (quoting Ancata v. Prison Health Servs., 769
F.2d 700, 704 (11th Cir. 1985)).

Brandon Palakovic suffered from serious mental
healthcare issues: He had informed prison mental health
staff of prior suicide attempts and self-injury; he had
been diagnosed with a number of serious mental
disorders; and the prison labeled him “Stability Rating
D” and placed him on the prison mental health roster.
38
And SCI Cresson personnel did treat Brandon’s mental
illness while he was an inmate. Specifically, according
to the original complaint, Brandon was prescribed
antidepressant medication and was visited by psychology
staff on three occasions.
The Palakovics claim that, despite this minimal
treatment, the defendants intentionally or recklessly
provided Brandon with mental healthcare that was so
grossly deficient that it violated the Constitution. They
alleged, for instance, that Brandon requested counseling
from a psychiatrist, but his request was ignored and a
psychiatrist did not provide treatment. They further
alleged that medical staff refused to provide Brandon
with necessary forms of treatment and instead relied only
on medication—but then neglected to ever evaluate the
efficacy of the medication, even after Brandon himself
advised staff that the medications were not effective.

More broadly, according to the Palakovics, Dr.
Harrington—chief psychologist at SCI Cresson and the
individual with responsibility for mental health services
throughout the prison—expressly prohibited medical
personnel from speaking with mentally ill prisoners in
solitary confinement “for more than 1–2 minutes at a
time through solid steel doors.” J.A. 27. They further
alleged that SCI Cresson had “systemic deficiencies” in
mental healthcare treatment, and failed “to adhere to the
minimal components of a constitutional prison mental
health care system”—conclusions that the DOJ reached
39
in its investigation. J.A. 20–21. These systemic
deficiencies included punishing the mentally ill rather
than treating them, a fragmented mental healthcare
program with insufficient staffing and poor diagnostic
procedures, and a failure to have any program to identify,
treat, or supervise prisoners at risk for suicide.
According to the Palakovics, “SCI Cresson’s lack of a
systematic program for screening and evaluating
prisoners in need of mental health care caused officials to
understate, delay, and ignore Brandon Palakovic’s need
for mental health care during his confinement.” J.A. 22.
And there is a final, key component to the
Palakovics’ claim, which takes it from the realm of mere
negligence to a potential claim of constitutional
magnitude: the defendants permitted Brandon—with his
fragile mental health condition and history of self-harm
and suicide attempts—to be repeatedly subjected to the
harsh and unforgiving confines of solitary confinement.
Allegedly ignoring the prison’s express written policy,
which acknowledges that placement of mentally ill
prisoners in solitary confinement can increase the
potential for suicide due to the “inherent stress” of those
conditions, the defendants nonetheless “substituted
solitary confinement for treatment.”24 J.A. 22. Thus, the

24
The supervisory defendants (Wetzel, Cameron, Luther
Boyles, and Harrington) are not alleged to have been
personally responsible for Brandon’s mental healthcare
40
defendants are alleged to have affirmatively contributed
to causing Brandon’s serious mental health conditions to
deteriorate. J.A. 16 (“Although Brandon had a ‘history
of self-harm and suicide attempts, he continued to be
placed in isolation, eventually leading to his death.’”
(quoting DOJ Report)).

Considering these allegations and recognizing the
high bar the Palakovics must meet in order to ultimately
prevail, we conclude that they have presented allegations

treatment. Nevertheless, the Palakovics adequately
alleged that the supervisory defendants were directly
responsible for the allegedly unreasonable and dangerous
practice at SCI Cresson of substituting solitary
confinement for mental healthcare treatment, and that
those supervisors knew such placement in solitary
confinement could increase the risk of suicide. The
Palakovics further alleged that, despite that knowledge
and the obviousness of the risk, the supervisory
defendants did nothing. Therefore, the Palakovics
presented a plausible claim of direct supervisory liability
sufficient to survive a motion to dismiss. See Beers-
Capitol, 256 F.3d at 135 (“to make out a claim of
deliberate indifference based on direct liability” plaintiffs
must allege “that the defendants knew or were aware of
and disregarded an excessive risk to the plaintiffs’ health
or safety”).

41
sufficient to state a plausible claim warranting discovery:
Despite receiving some minimal care, Brandon received
mental health treatment while at SCI Cresson that fell
below constitutionally adequate standards, and the
defendants—both the mental healthcare personnel
providing treatment and the supervisory officials and
medical corporation responsible for the prison’s mental
healthcare treatment policies—were deliberately
indifferent to Brandon’s serious medical needs. Thus,
this claim, too, should have survived dismissal.

VI.
After the District Court’s First Dismissal made
clear that their claims would not proceed beyond the
pleading stage if those claims did not include allegations
meeting the vulnerability to suicide framework, the
Palakovics amended their complaint to set forth four
vulnerability to suicide claims and a failure to train
claim. The District Court dismissed those claims as well.
A.
1.
The amended complaint alleged that Brandon
disclosed to prison personnel his history of suicide
attempts, including an attempt in the recent past, his
periodic thoughts of both self-harm and suicide, and even
that he had made specific plans about how he would go

42
about killing himself. He had been diagnosed with an
array of serious mental illnesses, exhibited signs of
depression, shared his suicidal thoughts with prison staff,
and expressed a wish to die. Unsurprisingly, after the
prison considered these indications, it labeled him a
“suicide behavior risk.” J.A. 65. Despite these
allegations, the District Court concluded that the
amended complaint was insufficient to “establish a strong
likelihood that Palakovic would inflict self-harm.”
Second Dismissal, 2016 WL 707486 at *6. We cannot
agree.
When a mentally ill, depressed person has
attempted to kill himself multiple times, has engaged in
self-harm, declares he has been thinking about killing and
harming himself, and has made an actual plan of how he
would carry out his own suicide, it cannot be said as a
matter of law that the risk of suicide is nothing more than
a “mere possibility.” Woloszyn, 396 F.3d at 322 (quoting
Colburn II, 946 F.2d at 1024). Brandon’s suicidal
propensities were so readily apparent that his fellow
inmates nicknamed him “Suicide.” J.A. 69; see Colburn
II, 946 F.2d at 1025 (there is a “strong likelihood” where
a lay person would recognize the necessity for preventive
action). If we were to conclude that Brandon’s
circumstances were insufficient to allege a “particular
vulnerability to suicide,” it is difficult to imagine how
any plaintiff could ever succeed in doing so.

43
 Our statements in Woloszyn and Colburn II
requiring a plaintiff to demonstrate a “strong likelihood”
of self-harm were never intended to demand a heightened
showing at the pleading stage by demonstrating—as the
District Court seemed to require here—that the plaintiff’s
suicide was temporally imminent or somehow clinically
inevitable. A particular individual’s vulnerability to
suicide must be assessed based on the totality of the facts
presented. In our view, the sum of the facts alleged in
the amended complaint are more than sufficient to
support plausible inferences that there was a “strong
likelihood” that self-inflicted harm would occur, and that
Brandon therefore suffered from a particular
vulnerability to suicide.
2.

The District Court also determined that the
amended complaint did not allege facts “showing that
Defendants knew or should have known about
[Brandon’s] particular vulnerability to suicide” because
the Palakovics “only generally allege that Defendants
‘were aware of’ or ‘were familiar with’ [Brandon’s]
medical history, vulnerability to suicide, and his
nickname of ‘Suicide.’” Second Dismissal, 2016 WL
707486 at *6. We do not read the amended complaint so
narrowly.
The Palakovics plausibly alleged that defendants
Harrington, Rathore, Eidsvoog, Boyles, and Luther all
44
knew of Brandon’s particular vulnerability to suicide, or
if they did not actually know, at least should have known.
We have observed that prison officials “know” of a
particular vulnerability to suicide where they have had
actual knowledge of a history of suicide attempts or a
diagnosis identifying suicidal propensities. See Colburn
II, 946 F.2d at 1025 n.1. Brandon had attempted suicide
on prior occasions and told prison officials so. The
prison identified Brandon as a “suicide behavior risk”
and rated him “Stability Rating D,” diagnosed him with
multiple, serious mental illnesses known to heighten the
risk of self-harm, and placed him on the “mental health
roster.” The Palakovics allege that all of this information
was set forth in Brandon’s records, which the corrections
officers and medical staff must have—or, at the very
least, should have—reviewed when considering both his
treatment and whether or not to repeatedly place him in
solitary confinement. These facts, taken together, are
sufficient to support a reasonable inference that prison
officials and medical personnel knew or should have
known of Brandon’s particular vulnerability to suicide.
3.

Finally, the District Court concluded that the
amended complaint failed to adequately plead deliberate
indifference on the part of any defendant. In so doing,
the District Court erroneously applied a subjective test,
examining what the officials “were actually aware of as
opposed to what they should have been aware of.”
45
Second Dismissal, 2016 WL 707486 at *7. Yet our case
law is clear: It is not necessary for the custodian to have
a subjective appreciation of the detainee’s particular
vulnerability. Woloszyn, 396 F.3d at 320 (quoting
Colburn II, 946 F.2d at 1024–25). Rather, we have held
that “reckless or deliberate indifference to that risk” only
demands “something more culpable on the part of the
officials than a negligent failure to recognize the high
risk of suicide.” Id. (citation omitted).
After applying the incorrect standard, the District
Court then unnecessarily required the Palakovics to
demonstrate one of three limited factual circumstances—
specifically, where: (1) a defendant took affirmative
action directly leading to the suicide; (2) a defendant
actually knew of the suicidal tendencies of a particular
prisoner and ignored the responsibility to take reasonable
precautions; or (3) a defendant failed to take “necessary
and available precautions to protect the prisoner from
self-inflicted wounds.” Second Dismissal, 2016 WL
707486 at *7 (citing Freedman v. City of Allentown, 853
F.2d 1111, 1115–16 (3d Cir. 1988)). The District Court
observed, “Plaintiffs have failed to allege facts showing
any of these scenarios.” Id.

While these factual scenarios provide helpful
guidance in determining whether a case meets the
vulnerability to suicide standard, each case will present
unique circumstances and should be considered on its
own facts. A failure to track the precise contours of our
46
prior caselaw should not, by itself, compel a conclusion
that a plaintiff has failed to state a vulnerability to suicide
claim. Here, in our assessment, the Palakovics
adequately alleged that the defendants knew of both
Brandon’s particular vulnerability to suicide and his
mental health care needs, but—in disregard of that
knowledge—repeatedly placed him (or permitted his
placement) in solitary confinement, where they knew that
the risk of suicide and mental harm was even greater.
This claim is amply supported by specific factual
allegations.
First, as addressed in the preceding section,
Brandon’s vulnerability was known (or should have been
known) by prison officials. Second, according to the
Palakovics, it was common knowledge that the prison
was being investigated by the DOJ for “provid[ing]
inadequate mental health care to prisoners who have
mental illness, fail[ing] to adequately protect such
prisoners from harm, and subject[ing] them to
excessively prolonged periods of isolation, in violation of
the Eighth Amendment of the U.S. Constitution.” J.A.
77. And, it can hardly be disputed that it is widely
known and understood that solitary confinement is
“characterized by extreme deprivation of social
interaction and environmental stimulation.” J.A. 68.
Finally, and perhaps most importantly, prison officials
were aware of a history of self-harm and suicide in SCI
Cresson’s solitary confinement unit in the recent past: In
47
2011 alone, “14 of the 17 documented suicide attempts at
SCI Cresson occurred in the solitary confinement units,”
J.A. 78, and there were “dozens of incidents involving
prisoners on the mental health roster engaging in self-
harm in the isolation units, while just two such incidents
occurred in the general population.” J.A. 78–79.

These non-conclusory allegations support an
inference that, despite knowing of Brandon’s
vulnerability and the increased risk of suicide that
solitary confinement brings, the defendants disregarded
that risk and permitted Brandon to be repeatedly isolated
in solitary confinement anyway. That is sufficient to
satisfy the plausibility standard and proceed to discovery
on the vulnerability to suicide claims as to defendants
Harrington, Rathore, Eidsvoog, Boyles, and Luther.

B.

The Palakovics also asserted a vulnerability to
suicide claim against MHM, the corporation providing
medical services at SCI Cresson. To state a claim against
a private corporation providing medical services under
contract with a state prison system, a plaintiff must allege
a policy or custom that resulted in the alleged
constitutional violations at issue. Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 583–84 (3d Cir. 2003).
Therefore, the question is whether the Palakovics
sufficiently alleged that MHM had a policy or custom

48
that resulted in a violation of Brandon’s Eighth
Amendment rights.

According to the amended complaint, MHM “was
responsible for under-staffing psychiatric staff, not
providing necessary forms of mental health treatment
such as suicide risk assessments and counseling, failing
to ensure adequate frequency of mental health
appointments and that such be conducted in a clinically
appropriate setting, and failing to provide proper medical
oversight of medication regimes.” J.A. 76. Further,
MHM “was aware that SCI Cresson was warehousing
people who were seriously mentally ill and those who
were vulnerable to suicide in solitary confinement, that
this practice was psychologically harmful and medically
contraindicated, and they did nothing to intervene on
behalf of their incarcerated patients.” Id. The Palakovics
buttressed these allegations with findings from the DOJ’s
investigation and subsequent Report. The DOJ Report,
as restated and alleged in the amended complaint,
specifically found that the mental health care provided by
SCI Cresson during the time of Brandon’s incarceration
suffered serious problems including “a dearth of mental
health treatment,” “insufficient[] staff[ing],” and “poor
screening and diagnostic procedures.” J.A. 79–80
(quoting DOJ Report).
The Palakovics alleged that MHM’s policies of
understaffing and failing to provide proper treatment
resulted in Brandon’s isolation, untreated mental illness,
49
and eventual suicide. At the motion to dismiss stage,
these allegations are sufficient to proceed to discovery.
Absent discovery, the Palakovics could not possibly have
any greater insight into MHM’s exact policies or their
impact on Brandon.
C.

Next, the Palakovics raised a vulnerability to
suicide claim against supervisory defendants Wetzel,
Cameron, Luther, and Boyles based upon policies and
practices at SCI Cresson, and a related claim for a failure
to train SCI Cresson staff “on how to manage prisoners
with serious mental illness and those that were vulnerable
to suicide in a manner that would not cause mental health
injuries.” J.A. 88.
As previously discussed, a plaintiff may state an
Eighth Amendment claim against a supervisor based on
policies or practices where the plaintiff alleges that the
supervisors “knew or were aware of and disregarded an
excessive risk to the [plaintiff’s] health or safety[.]”
Beers-Capitol, 256 F.3d at 135. In somewhat cursory
fashion, the District Court held that the Palakovics failed
to allege facts sufficient to establish supervisory
liability.25 Second Dismissal, 2016 WL 707486 at *8.

25
Although the District Court applied the Sample test, we
analyze the supervisory liability claims under the Farmer
test. See supra n.17. In any event, both tests are satisfied
50
We conclude, in disagreement with the District Court,
that the risk here was alleged with sufficient specificity
and factual support to be so obvious that the Palakovics
did plead a plausible claim for supervisory liability.

The Palakovics claimed that the supervisory
defendants established a policy whereby mentally ill and
suicidal prisoners like Brandon were repeatedly placed in
solitary confinement rather than provided with adequate
mental health treatment. In the Palakovics’ view, the risk
of suicide created by repeatedly placing mentally ill
prisoners in a small cement cell with minimal outside
visibility, few possessions, and limited human interaction
is obvious. And, even if it were not obvious, the prior
experience of the supervisors—who were aware of other
instances of suicide and self-harm by prisoners in solitary
confinement—made them aware of the unreasonable risk.
Among other things, the Palakovics cite a specific
incident in May of 2011, less than a year before
Brandon’s suicide, in which another mentally ill prisoner
committed suicide while in solitary confinement. They
allege that the supervisory defendants would have been
aware of that and similar recent incidents of self-harm.
They further allege that the DOJ’s investigation, initiated

by a showing that the risk was “so great and so obvious”
because “the risk and the failure of supervisory officials
to respond will alone support” supervisory liability.
Beers-Capitol, 256 F.3d at 134–35.
51
eight months before Brandon’s suicide, would have
contributed to their awareness of the potential dangers of
holding mentally ill and suicidal prisoners in solitary
confinement.

Similar to the policy claim, a failure to train claim
requires a plaintiff to “identify a failure to provide
specific training that has a causal nexus with his or her
injury and must demonstrate that the failure to provide
that specific training can reasonably be said to reflect a
deliberate indifference to whether constitutional
deprivations of the kind alleged occur.” Colburn II, 946
F.2d at 1030. Specifically, in a prison suicide case, this
means that the plaintiff must (1) “identify specific
training not provided that could reasonably be expected
to prevent the suicide that occurred” and (2)
“demonstrate that the risk reduction associated with the
proposed training is so great and so obvious that the
failure of those responsible for the content of the training
program to provide it can reasonably be attributed to a
deliberate indifference to whether the detainees succeed
in taking their lives.” Id.
According to the Palakovics, despite the risk and
the obviousness of the need to correct it, the supervisors
failed to train officials on how to recognize and properly
manage seriously mentally ill and suicidal prisoners,
failed to provide suicide prevention training, failed to
provide training on the adverse impact of solitary
confinement on those with mental illness, and failed to
52
train non-medical staff on the importance of consulting
with mental health care providers concerning discipline
and management of mentally ill prisoners. The
supervisors were alleged to have provided essentially no
training on suicide, mental health, or the impact of
solitary confinement, and simply acquiesced in the
repeated placement of mentally ill prisoners like Brandon
in solitary confinement.
According to the Palakovics, the supervisors were
responsible for the policies concerning the treatment of
mentally ill prisoners that gave rise to an unreasonable
risk of Brandon’s suicide, as well as the failure to provide
specific types of training that could reasonably have
prevented it. We must take the factual allegations of the
amended complaint as true, and those facts are sufficient
to support claims against the supervisory defendants.

VII.

Based on the foregoing, we conclude that the
Palakovics properly pleaded claims under the Eighth
Amendment in both their original and amended
complaints. Accordingly, we will vacate the District
Court’s dismissal orders entered on June 26, 2015, and
February 22, 2016, and will remand this matter to the
District Court for further proceedings. On remand, the
District Court should permit the Palakovics to file a
second amended complaint setting forth their Eighth
Amendment claims concerning conditions of
53
confinement, inadequate mental healthcare, vulnerability
to suicide, and failure to train.26

26
We reiterate that any second amended complaint may
not plead claims against the three voluntarily dismissed
defendants (Kushner, Reed, and Dous) or the defendants
named in the original complaint who were not named in
the amended complaint (Michelle Houser, Morris
Houser, Francis Pirozzola, Shawn Kephart, and John
Does #1-6), as the Palakovics have abandoned their
claims against each of those individuals. See supra,
notes 11, 13. In addition, the Eighth Amendment claims
should proceed against the remaining defendants in their
individual capacities only. See supra, note 20.
54