Freedman v. City of Allentown

BROTMAN, District Judge,

concurring in part and dissenting in part.

In its recent Colburn decision, this court left no doubt that the Fourteenth Amendment imposes a duty on custodial officials not to act with reckless indifference to the suicidal tendencies of their detainees if they knew or should have known of their detainees’ particular vulnerability to suicide. Colburn v. Upper Darby Twp., 838 F.2d 663, 669 (3d Cir.1988). It properly recognized that detainees are entitled to the same freedom from harm under the due process clause as that afforded convicted prisoners, and that this liberty interest is not sacrificed simply because the injury is self-inflicted. Id. at 668. Colburn concluded that § 1983 liability can properly attach to custodial officials whose conduct with regard to their detainees rises above mere negligence, regardless of who actually committed the offending assault. Id.

Colburn, like the case presently before us, involved an appeal from a 12(b)(6) dismissal of plaintiff’s complaint. Integral to the court’s decision to reverse the district judge’s ruling was the procedural posture of the case at the time the claims were dismissed. The litigation was still in its infancy, with no facts having been adduced other than those alleged in the “amended” complaint. In particular, with regard to the claim against Officer Miller, the police officer who conducted the search of the decedent before she was placed in her jail cell, this court stressed that plaintiff was entitled to “a reasonable amount of discovery” to assist her in making the necessary showing to prove her case. Id. at 670. The Colburn court stated unequivocally that plaintiff need do no more than merely allege the particular conduct in purported violation of the decedent’s rights with a “modicum of factual specificity.” Id. at 666, citing, Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981). It concluded that plaintiff’s allegations against the searching officer and those against the municipal defendants, at least with regard to the claim for inadequate monitoring and supervision, were sufficient to satisfy this threshold pleading burden. However, in the case at bar, the majority has concluded inexplicably that the plaintiffs’ allegations are insufficient to withstand a 12(b)(6) dismissal, and it is here where I part company with my brethren.

I have no quarrel with the dismissal of plaintiffs’ claims against Officers George LaFaver and Robert Hendricks, against whom nothing is alleged which could give rise to § 1983 liability. In fact, the complaint fails to allege any personal involvement by either of these two police officers in the events surrounding Freedman’s suicide. I also do not take issue with the 12(b)(6) dismissal of the claim against probation officer Kroboth whose conduct in failing to notify Detective Balliet of Freedman’s prior suicide attempt, although far from commendable, was, at most, an unfortunate breach of his duty of due care. The majority’s analogy to the conduct of the defendant prison official in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), is particularly apropos. See Majority Op. at 1117. Therefore, I concur with the result reached by the majority as to these three individual defendants.

However, I find the majority’s affirmance of the district court’s dismissal of the claims against Detective Balliet and the municipal defendants inconsistent with this court’s holding in Colburn and I must, therefore, respectfully dissent.

*1119A. DETECTIVE BALLIET

Plaintiffs’ complaint alleges that Freedman was questioned by Detective Balliet for over two and one-half hours concerning possible violations of Pennsylvania’s Prescription Law after his unexplained “appearance” at the Allentown Police Station. It was during this lengthy interrogation when Balliet allegedly asked Freedman whether he had any scars on his body, in response to which Freedman rolled up his sleeves and “revealed large prominent scars on his wrists and inside of his elbows and neck.” See Appellants’ Brief, Appendix 7a. These scars were designated postmortem by a forensic pathologist as “suicide hesitation cuts.” The complaint also alleges that these same scars were “readily apparent” on the decedent’s body at the time Freedman was searched by unidentified police officers after his arrest. It is on the basis of the factual allegations stated above that plaintiffs conclude that the actions of defendant police officers “constituted willful misconduct and were intentional and deliberate and in reckless disregard of plaintiffs’ decedent’s rights, not merely negligence.” Id. at 10a.

There can be no question that plaintiffs’ conclusory allegation that defendants’ conduct under the circumstances was, at minimum, “reckless” is in conformity with the legal standard recognized in Colburn for imposing § 1983 liability on officials acting under color of state law. See Colburn, 838 F.2d at 669. However, the central issue confronting this court is whether the allegations in support of this conclusory statement can, as a matter of law, rise to the level of something more than mere negligence. Stated hypothetically, the relevant inquiry is whether a police officer’s failure to recognize “prominent” scars on a detainee’s elbows, wrists and neck can ever amount to anything more than simple negligence? The majority’s answer is an unequivocal “no”; however, it offers no basis for its conclusion other than the unillumi-nating statement that “the failure to recognize them [the scars] as such [“suicide hesitation cuts”], without more, amounts only to negligence and therefore fails to support a claim' under Section 1983 [citation omitted].”

I remain unconvinced that Detective Bal-liet’s inability to recognize the tell-tale signs of a high suicide risk individual can never amount to “recklessness." I fail to see how the majority can be so resolute in its position without knowing the extent of the police officer’s background and training in detecting suicide risks and in suicide prevention, in addition to his prior experience with prisoners who have taken their own lives or attempted unsuccessfully to do so. None of the information concerning the officer’s knowledge, experience and professional competence would likely be known even to the most diligent civil rights plaintiff at the pleadings stage, and, therefore, he should be entitled to adduce such pertinent facts through discovery.

For example, discovery might reveal that Detective Balliet was a veteran police officer who had received extensive training in suicide prevention and had become well-versed in detecting the indicia of suicidal propensities. It is not unlikely that this was not the first time that such a veteran officer would have seen bodily markings similar to the ones on the decedent’s body in the course of his duties, nor is it improbable that he would have come into contact with a prisoner bearing such markings who had committed or attempted to commit suicide. Surely, a reasonable jury could conclude that a police officer possessing such knowledge, training and experience acted “in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” See W. Page Keeton, Prosser and Keeton on Torts § 34, at 213 (5th ed. 1984).

The majority distinguishes this case from Colburn on the ground that the amended complaint in Colburn alleged “more” than a simple failure to recognize prominent body scars as indicia of suicidal propensity. The court concluded that Colburn’s pleading was sufficient to withstand 12(b)(6) dismissal because it also alleged that (1) the police had been summoned to the decedent’s apartment the night before her suicide after she had jumped from a window *1120following an argument with her boyfriend; (2) the detaining officer had to prevent the decedent from swallowing three Valium pills she had removed from her purse; (3) a police officer had found a live round of ammunition in the decedent’s pocket at the time of her arrest; and (4) the decedent had used a gun to take her own life, a weapon which Officer Miller had allegedly failed to discover after searching the scantily clad prisoner. See Majority Op. at 1116. The majority’s position simply begs the question: Why is the aggregation of alleged facts 1-4 above sufficient to state a claim, whereas the allegation of a failure to recognize scars as suicide marks, standing alone, is not. The majority’s unhelpful response appears to be: “I know recklessness when I see it, and I just don’t see it here.”

Concededly, plaintiffs allegations against Officer Miller in Colburn present a stronger case for § 1983 liability than do those against Detective Balliet in the case at bar. However, the weight of the evidence is not our concern here; the factfinder will make this determination at trial. We are merely called upon to assess the sufficiency of plaintiffs’ § 1983 complaint. As if self-evident, the majority has ruled, as a matter of law, that a police officer’s failure to recognize prominent elbow, wrist and neck scars on a prisoner’s body as warning signs of a suicidal risk can never amount to more than mere negligence. I cannot share the majority’s conviction on this point, and strongly believe that the plaintiffs have drafted a complaint which contains the “modicum of factual specificity” required in actions brought under the civil rights statutes to state a claim for relief. Ross v. Meagan, 638 F.2d at 650. This is particularly true in a case such as this where the person whose constitutional rights have allegedly been violated is not alive to give his version of the events. See Colburn, 838 F.2d at 667.

B. MUNICIPAL DEFENDANTS

In the case at bar, the majority affirms the district court’s dismissal of both of plaintiffs’ claims against the City of Allentown and its supervisory officials. Those claims allege (1) a failure to create a system of visual surveillance or monitoring of prisoners with known suicidal tendencies, and (2) a failure to adequately train their police officers “in the lawful and effective handling of mentally disturbed persons.” Appellants’ Brief, Appendix 10a. Finding the dismissal of these claims incongruous with the reasoning of Colburn, I must disagree with the majority’s conclusion.

Plaintiffs’ first claim against municipal defendants is treated by the majority in a cursory fashion, with no attempt made to explain the different result reached on precisely the same claim supported by almost identical factual allegations in Colburn. The conclusion reached by the majority is, once again, unsupported by any analysis. It states merely that “[tjhere is not even a modicum of factual support for this claim.” See Majority Op. at 1116. This statement is puzzling in light of this court’s contrary ruling in Colburn.

In that case, the complaint alleged that the municipality and its officials had “exhibited a custom of laxity regarding the supervision and monitoring of their jail cells_” Colburn, 838 F.2d at 671. In response to defendants’ argument that a “custom of laxity” regarding the monitoring of jail cells could not support municipal liability under § 1983, this court expressly recognized, as the majority does here, that an “official policy” can be inferred “ ‘from informal acts or omissions of supervisory municipal officials.’ ” Id., citing, Estate of ginal). Using this legal principle as a springboard, the Colburn court went on to hold that the allegations contained in plaintiff’s pleadings were sufficient to satisfy the “modicum of factual specificity” requirement for § 1983 actions. Of sole importance to the court in reaching its decision with regard to this claim was the allegation in plaintiff’s complaint that the decedent’s suicide had been the third such suicide in the Upper Darby jail in four years:

... [Pjlaintiff has alleged that Stierheim was the third person to commit suicide *1121while in police custody at the Upper Darby Township Police Department jail since November 1982 [citation omitted]. The two prior suicides can he viewed as providing the governing body of Upper Darby with actual or constructive knowledge of the alleged custom of inadequate monitoring of jail cells. See Partridge, 791 F.2d at 1189. In short, we cannot hold that the complaint provides no basis for finding liability against Upper Darby or its governing officials in their official capacity. Although it may be difficult for plaintiff to prove the “ ‘nexus between the policy.... and the infringement of constitutional rights/ ” [citation omitted], we cannot say at this stage of the proceeding that such a nexus is so implausible that the complaint cannot be maintained.

Colburn, 838 F.2d at 672 (emphasis added).

Plaintiffs’ allegations at bar are completely indistinguishable from those in Col-burn. Plaintiffs’ complaint in this case alleges that “[a]n attempted suicide in the precise manner in which the plaintiffs’ decedent killed himself occurred approximately one-year prior by another detainee in the defendant jail” and that “at least one actual suicide” had occurred in the same jail at some unspecified prior time. See Appellants’ Brief, Appendix at 8a. Yet, notwithstanding allegations almost identical to those in Colburn, the majority here, without explanation, finds them insufficient to withstand a motion to dismiss. I fail to perceive a meaningful distinction between the two cases on this particular claim.

The majority’s parenthetical reference to the alleged existence of a special monitoring cell (the so-called “pink room”) suggests that it believes that such an allegation vitiates plaintiffs’ inadequate monitoring claim. See Majority Op. at 1116. We know nothing more about this special cell than its mere existence and can draw no conclusions about its effectiveness as a monitoring device at this early stage in the litigation.1 Just as it would be improper to dismiss, on a 12(b)(6) motion, a prisoner’s claim against a prison and its supervisory officials for failure to establish adequate medical facilities for the inmates simply because of the alleged existence of a prison infirmary, it is equally improper to dismiss plaintiffs’ claim for inadequate monitoring and surveillance just because of the alleged existence of a special booking cell. Although the existence of such a facility might be a relevant factual consideration at trial, it is not dispositive at this stage in the litigation.

Finally, with regard to plaintiffs’ claim against the municipal defendants for inadequate training of their police officers, my disagreement with the majority is a basic one. In Chinchello v. Fenton, 805 F.2d 126 (3d Cir.1986), Judge Stapleton acknowledged that this circuit has traditionally been reluctant “to infer supervisory approval of unconstitutional conduct from inaction on the part of the supervisor.” Id. at 133. He observed, however, that those circuits more amenable to such a position have found liability where there was “both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval to the offending subordinate.” Id. at 133 (footnote omitted).

In Colburn, this court more enthusiastically embraced the notion that a deficient training policy can form the basis of § 1983 liability, noting that four Justices of the Supreme Court had recently agreed with this proposition in a case involving a plaintiff who asserted a claim against a municipality alleging grossly inadequate training of its police officers. Colburn, 838 F.2d at 672, citing, City of Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987) (O’Connor, J., joined by Rehnquist, C.J., White, J. and Powell, J., dissenting from dismissal of writ of certiorari to Kibbe v. City of Springfield, 777 F.2d 801 (1st Cir.1985)) (inadequacy of police training *1122may serve as a basis for § 1983 liability where failure to train amounts to a reckless disregard of or deliberate indifference to the rights of persons within the city’s domain). Applying the two-pronged Chin-chello test to the facts in Colburn, this court concluded that plaintiffs pleadings lacked any allegations to support her claim of inadequate training, other than the isolated incident of Officer Miller’s failure to detect the decedent’s handgun after searching her at the Upper Darby jail. Colburn, 838 F.2d at 673. However, rather than simply affirming the dismissal of this claim, the Colburn court provided plaintiff with an opportunity to amend her complaint on remand to satisfy the two-pronged Chinchello standard. The court should do no less here.

I concur with the majority’s conclusion that plaintiffs’ complaint contains “not even a modicum of factual support for the allegation that the City deliberately elected not to fund or carry out training.” See Majority Op. at 1116. However, the same was true in Colburn, and yet this court permitted plaintiff to amend her complaint to satisfy Chinchello’s two-part test. I see no cogent reason for deviating from that course in the case at bar.

In sum, I believe that the majority’s opinion represents a marked and unnecessary departure from this court’s decision in Col-burn. In that case, this court recognized the great difficulty civil rights plaintiffs have in satisfying the court’s requirement of factual specificity in their pleadings, Colburn, 838 F.2d at 667, and stated that they are “not required to provide either proof of [their] claims or ‘a proffer of all available evidence’ because in civil rights cases ‘much of the evidence can be developed only through discovery’ of materials held by defendant officials.” Id. at 666, quoting, Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3d Cir.1986). The result reached by the majority in the case at bar renders these words hollow.

Plaintiffs have included sufficient factual allegations in support of their assertion of recklessness to move this case beyond the pleadings stage. Should no additional information emerge from discovery which would bolster plaintiffs’ allegations, then this matter might be ripe for summary judgment adjudication. However, at this posture of the case, plaintiffs should be afforded the same opportunity to develop their case that the Colburn plaintiff was given, and should not be denied a federal forum for their claims simply because their factual allegations lacked volume.

. I note that plaintiffs’ claim against municipal defendants is for their failure to establish an "effective means" of monitoring high suicide risks, and not merely for their failure to establish any means of supervision. See Appellants’ Brief, Appendix 9a.