Filed: Feb. 10, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-10-2006 Kulp v. Veruete Precedential or Non-Precedential: Non-Precedential Docket No. 04-3139 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Kulp v. Veruete" (2006). 2006 Decisions. Paper 1603. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1603 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-10-2006 Kulp v. Veruete Precedential or Non-Precedential: Non-Precedential Docket No. 04-3139 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Kulp v. Veruete" (2006). 2006 Decisions. Paper 1603. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1603 This decision is brought to you for free and open access by the Opinions of the United S..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-10-2006
Kulp v. Veruete
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3139
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Kulp v. Veruete" (2006). 2006 Decisions. Paper 1603.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1603
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3139
TIMOTHY D. KULP, Individually and as Administrator
of the Estate of Timothy M. Kulp, Deceased; CAROL L. KULP,
Appellants
v.
SONIA VERUETTE, Individually and as Lieutenant at Centre County Prison;
SHANNON QUICK, Individually and as counselor employed by Centre County Can
Help and agent of Centre County Prison and/or Centre County; LIEUTENANT SMITH,
Individually and as Lieutenant at Centre County Prison; TIMOTHY GALLU,
Individually and as Counselor at Centre County Prison; DAVID C. KNEPP, C.O.,
Individually and as Correctional Officer at Centre County Prison; C.O. MCCLELLAN,
Individually and as Correctional Officer at Centre County Prison; C.O. ANDREWS,
Individually and as Correctional Officer at Centre County Prison; C.O. SHEARER,
Individually and as Correctional Officer at Centre County Prison; C.O. GATES,
Individually and as Correctional Officer at Centre County Prison; C.O. STEFANKO,
Individually and as Correctional Officer at Centre County Prison;
JOHN DOES, No. 1-10
(Amended per Order dated 9/9/04)
Appeal from the United States District Court for the
Middle District of Pennsylvania
(D.C. Civil Action No. 03-cv-01474)
District Judge: Honorable Malcolm Muir
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2006
Before: BARRY and AMBRO, Circuit Judges, and
DEBEVOISE*, Senior District Court Judge
(Filed: February 10, 2006)
OPINION OF THE COURT
DEBEVOISE, Senior District Judge
Appellants, Timothy D. Kulp1 and Carol L. Kulp, are the parents of Timothy M.
Kulp, (“Kulp”) who committed suicide while incarcerated at the Centre County Prison
(the “Prison”) in Pennsylvania. The parents commenced an action in the District Court
against the appellees, employees of the Prison, pursuant to 42 U.S.C. § 1983 and state
law. They appeal from orders of the District Court dismissing their First Amended
Complaint (the “Complaint”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim. We will reverse.
I. Background
The Complaint named ten persons as defendants in their individual and official
capacities. Because the District Court granted the defendants’ motion to dismiss under
Rule 12(b)(6), we take the factual background of this case from the Complaint and accept
all allegations contained therein as true. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d
*
Honorable Dickinson R. Debevoise, Senior District Court Judge for the District of New
Jersey, sitting by designation.
1
Timothy D. Kulp appeals individually and as administrator of the estate of Timothy M.
Kulp.
2
Cir. 1994).
Lieutenants Sonia Veruette and Smith were responsible for implementing
appropriate policies of the Prison, supervising its staff and pretrial detainees, and
establishing suicide watch and appropriate observation of pretrial detainees. Shannon
Quick and Timothy Gallu were counseling or healthcare employees at the Prison.
Correctional Officers Knepp, McClellan, Andrews, Shearer, Gates and Stefanko had
responsibility for executing appropriate policies and procedures at the Prison, supervising
pretrial detainees and, among other duties, implementing suicide watch and appropriate
observation and handling pretrial detainees requiring suicide watch.
On or about 2:20 a.m. on August 26, 2001, eighteen year old Kulp was committed
to the Prison as a pretrial detainee on charges of burglary, criminal attempt at burglary,
criminal trespass, misdemeanor indecent assault and summary harassment. The
commitment documentation, consisting of a Police Criminal Complaint and Affidavit of
Probable Cause, reflected that Kulp, while drunk and after smoking marijuana, entered,
without the consent or knowledge of the occupants, the dormitory rooms of at least three
sleeping Penn State female students, lay next to them, and indecently fondled them during
the early morning hours of August 25.
During Kulp’s commitment, Officer McClellan noted that he had alcohol addiction
and mental illness, and that he was cooperative but upset. Officer Knepp conducted a
suicide prevention screening at about 2:30 a.m. He knew or should have known of the
commitment documentation and the Inmate Commitment Summary Report. Officer
3
Knepp noted on Kulp’s Suicide Prevention Screening Questionnaire that Kulp was
worried about his current situation, but, contrary to all the documentation previously
referred to, incorrectly noted on the Questionnaire that Kulp did not have a psychiatric
history or take psychiatric medication, that his alleged crime was not shocking in nature,
and that Kulp did not show signs of depression or appear anxious, afraid, angry,
embarrassed, or ashamed. Officer Knepp reported on the Questionnaire that he did not
notify the Shift Commander or refer Kulp to Mental Health. As a result of the
Questionnaire Kulp was assigned to an initial 48 hours administrative segregation under
regular supervision.
Officer Knepp failed to complete the Questionnaire accurately and failed to notify
the Shift Commander of Kulp’s condition. He failed to refer Kulp to Mental Health and
failed to take steps to obtain a mental health examination or further health treatment. He
did not have Kulp placed on a suicide watch, and he did not have Kulp appropriately
observed, nor did he remove from Kulp’s possession items that could be used in a suicide
attempt.
At about 7:52 a.m. on August 26, Quick, the counselor and healthcare employee,
examined Kulp. She knew or should have known the contents of all the foregoing
documentation. Kulp informed Quick that his motive for the charged crimes was that he
wanted to wake up next to another person, implying loneliness, depression, and/or
another vulnerable emotional or mental state.
Quick noted in her Consultation Record that Kulp: (a) was depressed, labile,
4
tearful, confused and anxious; (b) expressed problems with his family and suffered from
alcohol and marijuana abuse; (c) had relationship issues and mood swings with impulsive
behavior; (d) had been diagnosed with bipolar disorder but declined to take his
medication; (e) was having passive suicidal thought in the form of believing that things
could not get worse; and (f) was very anxious about his arrest and related his current
situation to family and friends. Quick further noted that, although she did not believe
Kulp appeared to pose a threat to himself at that time, he had the potential to
decompensate rapidly. Quick recommended that Kulp see a counselor, be placed in a cell
by the guards, and be under observation. She failed specifically to request that Kulp be
placed on a suicide watch and failed to report his vulnerability so that it could be properly
acted upon. She failed to have Kulp appropriately observed, and she did not have
removed from Kulp’s possession items that could be used in a suicide attempt.
Lieutenant Smith, who knew or should have known of all of the previously
mentioned documentation, noted at about 7:52 a.m. on August 26, 2001, that Quick had
reported that Kulp was not a threat to himself at that time, that Kulp should see a prison
counselor the next day and that an eye should be kept on Kulp. Knowing of Kulp’s
vulnerability to suicide from the above documentation, Lieutenant Smith nevertheless
failed to have Kulp placed on suicide watch, or to have Kulp appropriately observed. He
failed to remove from Kulp’s possession items which could be used in a suicide attempt.
Lt. Veruette had the responsibility of assigning Kulp’s cell and observation status.
She knew, or should have known, on the basis of the contents of the aforementioned
5
documentation, that Kulp had a particular vulnerability to suicide and should be kept
under observation. She assigned Kulp to Cell No. THU1, failing to have Kulp placed on
suicide watch or appropriately observed. She failed to have removed from Kulp’s
possession items that could be used in a suicide attempt.
Gallu, a prison counsel, examined Kulp at 3:30 p.m. on August 26. He knew or
should have known of the previously mentioned documentation. He reported about his
consultation after Kulp committed suicide, stating that “(a) Kulp was quiet and polite; (b)
they discussed Kulp’s family and mental health history; (c) Kulp informed Defendant
Gallu of his bipolarism and refusal to take his medication; (d) Defendant Gallu told Kulp
that he would like to refer him to the MH/MR Unit of Centre County so that he could be
evaluated and possibly set up with a psychiatrist, urged Kulp to take his medication, and
stated that now might be a good time to get help. Kulp agreed and said he would meet
with a Mental Health Liaison. When asked if he were suicidal or had a history of suicide,
Kulp replied in the negative.” (Complaint, para. 32.)
Based upon his observations and the various reports, Gallu knew, or should have
known, that Kulp had a particular vulnerability to suicide. Nevertheless, he failed to take
appropriate action. Instead he wrote that Kulp gave no indication of a desire to harm
himself and reported that information to a Deputy Warden of the prison.
Kulp received no further counseling or mental health examination or treatment.
He was not placed in a suicide watch, nor were items which could be used in a suicide
attempt taken from him.
6
On August 27, 2001, at about 10:30 p.m., Lieutenant Veruette and Officers
McClellan, Andrews, Shearer, Gates and Stefanko were on duty at the prison. Officers
McClellan, Andrews and Shearer conducted a routine watch tour of the prison housing
areas and observed Kulp sitting on his bed. All of these officers knew, or reasonably
should have known, that they were to keep Kulp under observation as a potential suicide
risk but failed to do so. They also failed to remove from him items which he could use in
committing suicide. At approximately 11:06 p.m., when he could not see Kulp from the
main door of the THU housing area, McClellan entered the housing area and found Kulp
hanging by a shoelace around his neck.
In addition to alleging these facts, the Complaint alleged generally that each prison
employee acted with deliberate indifference to Kulp’s vulnerability to suicide, and that
their actions and inactions caused Kulp’s death in violation of his right to life, liberty and
property guaranteed by the Fourteenth Amendment to the United States Constitution.
II. The District Court Proceedings
The Prison employees filed three motions to dismiss the original complaint. The
District Court granted each of the motions without prejudice to the right of the parents to
file an amended complaint. The parents filed their First Amended Complaint (the
Complaint), which dropped a number of defendants but changed little else of substance.
Thereupon Quick moved to dismiss the Complaint, and subsequently the other Prison
employees did likewise. The District Court granted the motions, dismissing the federal
claims with prejudice and dismissing the state law claims without prejudice to the
7
parents’ right to pursue those claims in the State Court.”2 This appeal followed.
III. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We have plenary review over a district
court’s grant of a motion to dismiss for failure to state a claim and we review the District
Court’s decision de novo, applying the same legal standard as the trial court to the same
record. Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004); Omnipoint
Commc’ns Enters., L.P. v. Newtown Twp.,
219 F.3d 240, 242 (3d Cir. 2000). A motion
to dismiss pursuant to Federal Rule 12(b)(6) should be granted only if, “accepting as true
the facts alleged and all reasonable inferences that can be drawn therefrom,” there is no
reasonable reading upon which the plaintiff may be entitled to relief. Colburn v. Upper
Darby Twp.,
838 F.2d 663, 665-66 (3d Cir. 1988) (Colburn I).
IV. Discussion
The District Court fully recognized the limited circumstances in which a motion to
dismiss a complaint can be granted and emphasized the heavy burden a plaintiff carries in
a prison suicide case brought under 42 U.S.C. § 1983. Colburn v. Upper Darby
Township, 946 F.2d 1017 (3d Cir. 1991) (Colburn II). The plaintiff in such a case “has
the burden of establishing three elements: (1) the detainee had a ‘particular vulnerability
2
The District Court dismissed the parents’ Corrected First Amended Complaint on
procedural and substantive grounds. That pleading had been filed simply to correct an oversight
in the drafting of the caption and liability allegations of the First Amended Complaint - the
omission of Officer McClellan. The District Court had in any event treated McClellan as a party
to the proceedings and had previously dismissed the action against him.
8
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.” Id. at 1023.
The District Court held that as to each prison official the Amended Complaint
“suffers from the same defects as the original complaint. It contains boilerplate,
conclusory language which we are not obliged to accept as true. The principal example
of this conclusory language is that [the Defendants] ‘knew or should have known that
Kulp had a particular vulnerability to suicide and acted with deliberate indifference.’”
(A. 62a, A. 72a).
Referring to the information each Prison employee is alleged to have received and
to the action or inaction attributed to each of them, the Court concluded that those
allegations were insufficient to permit the case to proceed:
As we observed in prior orders, the requirement of a particular vulnerability
to suicide requires that there be a strong likelihood of self-inflicted harm
rather than a mere possibility. Nothing alleged in the amended complaint
suggests a strong likelihood of suicide. Moreover, there are no allegations
in the amended complaint from which it could be concluded that
Defendants were deliberately indifferent. Indeed the factual allegations set
forth in the amended complaint reveal efforts by Defendants to provide
Kulp with care.
(A. 63a, A. 72A-73a).
Colburn II, upon which the District Court relied, was in a different procedural
posture from the present case. It concerned the granting of a summary judgment after full
9
discovery had been taken. The present case is akin to Colburn I.
In Colburn I, the original complaint alleged in general terms that defendants knew,
or should have known, that the detainee in question was a suicide risk. We observed that
“[w]hile this allegation standing alone may not have met this court’s standard for a
modicum of factual specificity in civil rights complaints, plaintiff, in her memorandum in
opposition to defendants’ motion to dismiss in the district court, buttressed her complaint
allegation with [a number of facts] which could be asserted in an amended complaint.”
Colburn I at 670. The opinion listed the facts.
Like the complaint in Colburn I, as supplemented by the memorandum, the
Amended Complaint in this case contains numerous facts which, when viewed in their
totality and supplemented by information obtained in discovery, might support an
inference of liability on the part of some or all of the Prison employees. It is premature to
decide at this stage of the proceeding the full extent of each person’s knowledge and the
entirety of his or her actions. As we stated in Colburn I, “[p]laintiff is therefore entitled
to a reasonable amount of discovery to help her make the necessary showing to prove her
case.” Id. at 670.
The District Court here held the parents to a higher standard of pleading than is
required. As we have stated:
The Defendants likewise argue on appeal that Alston’s complaint lacked
sufficient factual support. But a plaintiff need not plead facts. To
withstand a 12(b)(6) motion, a plaintiff need only make out a claim upon
which relief can be granted. If more facts are necessary to resolve or clarify
the disputed issues, the parties may avail themselves of the civil discovery
10
mechanisms under the Federal Rules.
…
The need for discovery before testing a complaint for factual sufficiency is
particularly acute for civil rights plaintiffs, who often face informational
disadvantages.
…
Because Alston’s complaint was dismissed before an opportunity for
discovery, any expectation of factual sufficiency was premature. It is a first
principle of federal civil procedure that litigants “are entitled to discovery
before being put to their proof.” Bennett v. Schmidt, 153 F.3d 516, 519 (7th
Cir. 1998).
Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004).
In the present case, the parents’ Complaint was dismissed before they had an
opportunity for discovery, and “any expectation of factual sufficiency was premature.” It
was error to dismiss the Complaint at that stage of the proceeding.
V. Conclusion
For the foregoing reasons, we will reverse the judgment of the District Court and
remand the case for further proceedings consistent with this opinion.
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