                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 09-1048
                                     ___________

                  DEAN VARGO, an adult incompetent by his parent
                    and natural guardian PATRICIA A. VARGO,
                                                           Appellant
                                          v.

PLUM BOROUGH; PLUM BOROUGH POLICE DEPARTMENT; ROBERT PAYNE,
individually and in his capacity as Chief of Police; ERIC SCHLARP, individually and in
    his capacity as a police officer of Plum Borough; DARRYL D. GRANATA, JR.,
  individually and in his capacity as a police officer of Plum Borough; DONALD LEE
  TEMPLE, JR., individually and in his capacity as a police officer of Plum Borough;
   LISA A. LINN, individually and in her capacity as dispatcher for the Plum Borough
                        Police Department and for Plum Borough
                                        ___________

                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-06-cv-01574)
                   District Judge: The Honorable Joy Flowers Conti
                                     ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 12, 2010

                 Before: SLOVITER and NYGAARD, Circuit Judges.
                              and RESTANI,* Judge.


                                (Filed : April 19, 2010)



       *Honorable Jane A. Restani, Chief Judge for the United States Court of
International Trade, sitting by designation.
                                        ___________

                                OPINION OF THE COURT
                                     ___________

NYGAARD, Circuit Judge.

       Dean Vargo was arrested by Plum Borough police for failure to appear for a trial.

He was taken to the Plum Borough Police Station and placed in a holding cell. No other

prisoners were in the cell with him. After he was locked into the cell, the police officers

left the station to respond to another call, leaving the police dispatcher alone in the

station. The dispatcher, able to monitor Vargo in the holding cell on a closed-circuit

television, noticed Vargo attempting to commit suicide by hanging himself with his shirt,

which he had fastened to the cell bars. Station policy, however, prohibited the dispatcher

from entering cells occupied by prisoners, even in cases of emergency. Thus, the

dispatcher could not attempt a rescue, but did contact police officers. Vargo did not die,

but suffered severe brain damage as a result of his suicide attempt.

       Vargo, by his parent and guardian, sued, asserting claims under 42 U.S.C. § 1983

and Pennsylvania tort law. The District Court first dismissed the state law claims, finding

immunity for the Borough and its police officers. Following discovery, the District Court

granted summary judgment to the Borough and its officers on Vargo’s remaining § 1983

claim. We will affirm essentially for the reasons set forth in the Magistrate Judge’s

Report and Recommendation as adopted by the District Court. We will, however, briefly

outline our ratio decidendi on some of the issues raised by Vargo on appeal.

                                              2
                                             I.

       We begin with the District Court’s dismissal of Vargo’s state law claims. Here,

the District Court properly determined that the Pennsylvania Political Subdivision Tort

Claims Act gave Plum Borough and its police officers immunity from suit. The Act

provides that “no local agency shall be liable for any act of the local agency or employees

thereof or any other person.” 42 Pa. Cons. Stat. § 8541. Vargo relies on a dissenting

opinion in Pennsylvania State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwlth. Ct. 2003).

This, however, does not rescue his claim. The Magistrate Judge correctly relied on the

majority opinion in Klimek and did not err by holding the Borough immune from suit

under Pennsylvania law.

       Vargo additionally argues that the allegations contained in Count III of his

complaint allege willful misconduct, not negligence. He argues that because the Borough

police officers knew that he was in an agitated state and under the influence of narcotics

when arrested, he was vulnerable to suicide. This, however, does not amount to willful

misconduct. As we have held, willful misconduct under Pennsylvania law is a

“demanding level of fault,” and we have found it synonymous with an allegation of an

“intentional tort.” See Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (citing Renk v.

City of Pittsburgh, 641 A.2d 289, 294 (Pa. 1994); Bright v. Westmoreland County, 443

F.3d 276, 287 (3d Cir. 2006)). Vargo does not allege any intent by the Borough or

Borough police officers to cause harm nor does his complaint allege that the Appellees



                                             3
were “substantially certain” that Vargo would attempt suicide. Id. Without these specific

allegations, there can be no finding of willful misconduct and it was not error for the

District Court to dismiss Vargo’s complaint.

                                              II.

       Because Vargo was a pretrial detainee, we analyze his § 1983 claims under the

Fourteenth Amendment’s substantive due process protection against arbitrary abuse of

government power, his Eighth Amendment protection from cruel and unusual punishment

having not yet attached. See Colburn v. Upper Darby Twp. (Colburn I), 838 F.2d 663,

668 (3d Cir. 1988).

       Municipalities, which are considered “persons” under § 1983, may be liable for

constitutional torts if two prerequisites are met: (1) the plaintiff's harm was caused by a

constitutional deprivation; and (2) the municipal entity is responsible for that violation.

Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). A government entity may

not be held vicariously liable for the constitutional violations of its agents under a theory

of respondeat superior. Id. at 122. Instead, municipal entities are only liable under § 1983

“when execution of a government’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible for under § 1983.” Monell v. Dept.

of Social Services, 436 U.S. 658, 694 (1978).




                                               4
       In Colburn v. Upper Darby Twp. (Colburn II), we explained that a plaintiff in a

pretrial detainee prison suicide case must establish each of the following three elements to

establish a violation of due process: (1) the detainee had a “particular vulnerability to

suicide;” (2) the custodial officer or officers should have known of that vulnerability; and

(3) those officers “acted with reckless indifference” to the detainee’s particular

vulnerability. 946 F.2d 1017, 1024 (3d Cir. 1991). Under the first prong, the plaintiff

must show that there was a “strong likelihood, rather than a mere possibility, that

self-inflicted harm will occur.” Id. The second prong reflects the requirement that “[t]he

strong likelihood of suicide must be so obvious that a lay person would easily recognize

the necessity for preventative action; the risk of self-inflicted injury must not only be

great, but also sufficiently apparent that a lay custodian’s failure to appreciate it evidences

an absence of any concern for the welfare of his or her charges.” Id. at 1025. Finally, the

third prong recognizes that there must be a link between the prison official’s knowledge

and his disregard of the prisoner’s particular risk. Although we have not developed the

exact contours of the third prong, we have suggested that it is similar to the “deliberate

indifference” standard applied to a claim brought under the Eighth Amendment, which

requires the plaintiff to prove that the prison official “know[s] of and disregard[s] an

excessive risk to inmate health and safety.” Woloszyn v. County of Lawrence, 396 F.3d

314, 321 (3d Cir. 2005) (quoting Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001)).




                                              5
       Based upon the evidence of record, the District Court determined that Vargo could

not prove that he had a particular vulnerability to suicide. We agree with that conclusion.

No witness observed or claimed that Vargo was acting abnormally or that he gave any

indication that he was going to inflict harm upon himself. Additionally, testimony

indicated that if Vargo had exhibited any behavior or made any articulable threat to his

personal safety, he would not have been left alone in the cell. Finally, the record clearly

establishes that Vargo had no history of suicide attempts and that his family was unaware

if Vargo was afflicted with any mental health problems.

       We find persuasive the District Court’s conclusion that Vargo did not present any

evidence that an additional screening method would have aided him, especially where

those individuals who knew Vargo have testified that he gave no indication that he

wished to harm himself. For example, the record relates that people who knew Vargo

were “shocked” by his suicide attempt. See Colburn II, 946 F.2d at 1026 (commenting

that similar evidence seeking to establish that heavy intoxication is a “serious red flag” of

a predisposition to commit a jailhouse suicide was insufficient to establish a particular

vulnerability to suicide). We have instructed that the Colburn test is detainee-specific, and

here, Vargo simply failed to submit sufficient evidence to create an issue of fact that there

was a “strong likelihood” that he would commit suicide.

                                             III.




                                              6
       As to the remaining issues presented on appeal, we will affirm essentially for the

reasons set forth in the Magistrate Judge’s Report and Recommendation, as adopted by

the District Court. We conclude that the District Court did not err by adopting the Report

and Recommendation of the Magistrate Judge and by granting summary judgment in

favor of the Borough and its police officers. Accordingly, we will affirm the judgment of

the District Court.




                                             7
