                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2005

Woloszyn v. Lawrence
Precedential or Non-Precedential: Precedential

Docket No. 03-2390




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                                          PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                     No: 03-2390

   PATRICIA A. WOLOSZYN, ADMINISTRATRIX
 OF THE ESTATE OF RICHARD LEE WOLOSZYN, JR.
  ON BEHALF OF THE ESTATE OF RICHARD LEE
  WOLOSZYN JR., AND PATRICIA A. WOLOSZYN,
ADMINISTRATRIX OF THE ESTATE OF RICHARD LEE
WOLOSZYN, JR. ON BEHALF OF THE NEXT OF KIN OF
         RICHARD LEE WOLOSZYN, JR.,

                                        Appellant

                                   v.

   COUNTY OF LAWRENCE; WILLIAM F. HALL,
   WARDEN OF THE LAWRENCE COUNTY JAIL;
  MATTHEW GRAZIANI, and/or MICHAEL SAINATO

      Appeal from the United States District Court
        for the Western District of Pennsylvania
                (Civil No. 01-cv-01361)
         District Judge: Hon. Arthur J. Schwab

                 Argued: May 12, 2004

    Before: NYGAARD, MCKEE and CHERTOFF,

                           1
                        Circuit Judges

              (Opinion filed: January 28, 2005)

CHARLES E. EVANS, ESQ.
MARK E. MILSOP, ESQ. (Argued)
Evans, Portnoy, Quinn & O’Connor
36th Floor
One Oxford Centre
301 Grant Avenue
Pittsburgh, PA 15219
Attorneys for appellant

JOHN P. SIEMINSKI, ESQ. (Argued)
Burns, White & Hickton, L.L.C.
120 Fifth Avenue
Suite 2400
Pittsburgh, PA 15222
Attorneys for appellees

                          OPINION

McKEE, Circuit Judge.

       We are asked to review the district court’s grant of
summary judgment in favor of individual and municipal
defendants in a suit brought pursuant 42 U.S.C. § 1983 and
Pennsylvania’s Wrongful Death and Survival statutes, 42 PA.
C ONS. S TAT. A NN. §§ 8301, 8302. The suit arises from the
jailhouse suicide of a pre-trial detainee. For the reasons that
follow, we will affirm.

                              2
                          I. FACTS

        On July 21, 1999, Richard Lee Woloszyn, Jr., was
arrested by local police after attempting to burglarize a private
residence in Ellwood City, Pennsylvania. The officers took
Woloszyn to the Ellwood City Police Station where he
voluntarily waived his right to counsel and signed a statement
admitting the illegal entry. Following arraignment on those
charges, police took Woloszyn to the Lawrence County
Correctional Facility (“LCCF”) where he was to be held. In an
Incident Investigation Report, Officer List wrote that on the
way to the LCCF, he and Lieutenant Gilchrist spoke with
Woloszyn who “appeared to be in good spirits and was joking
. . .”. Officer List also wrote:

       He told us how he got caught cheating on his
       wife with the neighbor lady. I told him he better
       watch that his wife might kick his butt. He
       advised us that he was lucky that they didn’t have
       a gun in his house because she would have shot
       him years ago. Then he said maybe that might
       have been the best thing for everybody. I told
       him not to talk like that.

According to List, “[Woloszyn] appeared to be in good
spirits[]” when they arrived at the LCCF. In his deposition,
List testified that Woloszyn did not show any signs of
depression on the way to the LCCF. On the contrary, List
testified that Woloszyn was “in fairly good spirits” and was
“talking and joking with us.”


                               3
       After arriving at the LCCF, Woloszyn was interviewed
by Correction Officer Linda Hartman-Swanson. In her
affidavit, she stated that while he was being booked, Woloszyn

       was very remorseful and distant. He was not
       answering my questions, but wanted to talk about
       how he had failed as a father and a person. He
       talked about how when he was young the
       children would come to him, but now they would
       go to his wife instead, he said “that really hurts
       me.” He said that he was glad that he got caught
       because he wanted it to stop, he was on a 24 hour
       rampage, he had done every drug possible from
       alcohol to heroin, to crack cocaine and acid.

Hartman-Swanson asked Captain Adamo to keep Woloszyn in
the booking area rather than assign him to a cell. She claimed
that Adamo initially agreed, but changed his mind after Annette
Houck, the LCCF nurse on duty, cleared Woloszyn for Housing
Unit B (“HB Unit”). Prisoners are placed there for observation
before being placed in the general jail population. According
to Hartman-Swanson, Capt. Adamo told her that he would put
Woloszyn on five minute checks . However, Capt. Adamo also
said that he would follow the nurse’s advice.

       Hartman-Swanson testified in her deposition that
Woloszyn told her that he was not suicidal. One of the
questions on the LCCF Booking Questionnaire asked if “the
inmate’s conversation or actions suggest the risk of suicide” and
had a place to check either “yes” or “no.” Hartman-Swanson
completed that form by checking, “no.”

                               4
       Nurse Houck performed a medical assessment of
Woloszyn at the LCCF. Woloszyn was polite, cooperative, alert
and not agitated. His respiration and blood pressure were
normal and he was oriented to person, place and time.
Although the nurse was aware that Woloszyn had claimed to be
under the influence of street drugs, he did not appear to be
under the influence of drugs or alcohol during her assessment.
Woloszyn told Houck that he was not being treated by a
psychiatrist and had no psychiatric history. According to
Houck, Woloszyn did not request a counselor or physician at
any point during his medical assessment. Based upon her
medical assessment, Houck did not believe that Woloszyn
should be placed on suicide watch. In her opinion, there was no
indication that he intended to harm himself. She therefore
informed Adamo that Woloszyn was medically stable and could
be placed in the HB Unit. She did, however, recommend that
Woloszyn be checked hourly for signs of alcohol withdrawal.
Consistent with Houck’s recommendation, Adamo placed
Woloszyn on one hour checks based upon concerns related to
alcohol withdrawal.

       Correction Officer Sainato escorted Woloszyn from the
booking area to HB Unit. He did not observe anything unusual
about Woloszyn’s mood or behavior. Correction Officer
Graziani, the officer on duty in the HB Unit when Woloszyn
arrived there at 7:20 p.m., also noticed nothing unusual or
remarkable about Woloszyn’s behavior. When Woloszyn
arrived in HB Unit Woloszyn was able to state and spell his
name when Graziani asked him to, and Graziani then placed
Woloszyn in his cell. When Graziani later asked Woloszyn

                              5
what kind of drink he wanted in the morning, Woloszyn yelled
back that he wanted juice.

        The record also contains an unsworn statement from
Wayne Shaftic, an inmate in the cell next to Woloszyn. Shaftic
claims that Woloszyn requested a counselor, and that Woloszyn
was yelling, screaming, and kicking for more than 45 minutes,
but that no one responded. Specifically, Shaftic’s statement
said, in relevant part:

      You could tell the kid was strung out. He was
      confused. . . . He wanted to see a counselor and
      was told to go to his cell, “lay it down” and they
      would contact a counselor in the morning. He
      said he shouldn’t be here, that he needed a
      counselor. He said he needed help, he didn’t
      belong here. . . . I hear the kid in the cell going
      nuts, yelling and screaming and punching the
      metal top bunk. The kid was loud, real loud. . . .
      And the kid was screaming loudly. He screamed
      disjointedly about himself. . . . Like self blame.
      I could tell he was kicking his locker also. It was
      a constant commotion for at least 45 minutes until
      I talked to him. No one had come up to his cell.
      The guard at the desk all of this time was
      Matthew Graziani and he was looking thru
      vacation brochures. He never made a walk
      around until I started to talk to the kid. . . .
      [Woloszyn] said he had been partying for the last
      3 days and he could not be in this cell – he
      needed to get out of the cell. . . . I believe

                              6
       Graziani made his walk around about 6 p.m. and
       I watched him. That day Graziani never even
       looked in our cells. He didn’t say anything and
       didn’t look our way. He walked past us, went to
       the end, turned around and walked past us a
       second time.

       Prisoners in the HB unit were checked every 30
minutes.1 At 8:14 p.m., Graziani began to check the HB Unit.
 He finished by 8:20 p.m. At approximately 8:52 p.m., Graziani
found Woloszyn hanging by the neck in his cell. Woloszyn had
apparently taken a sheet from his cell bunk, tied it to an
unscreened ceiling vent in his cell, and hanged himself.
Graziani called a “code blue” and attempted to prop Woloszyn
up to alleviate the pressure on his neck. Correction Officers
Sainato and Stiles then entered the cell and assisted Graziani in
untying the sheet that was knotted around Woloszyn’s neck.
They checked Woloszyn’s pulse and respiration, and found
none.

      Stiles and Graziani then began performing CPR while
another corrections officer was sent for a protective breathing
mask.2 Although a protective mask should have been kept in


       1
       Graziani testified that he was told to check on Woloszyn
every hour for signs of alcohol withdrawal.
       2
        Although it is not clear from the record, we assume that
a “protective breathing mask,” is a mask designed to afford
some measure of hygiene to persons performing CPR.

                               7
the HB Unit, none could be found. However, Officers Graziani
and Stiles began taking turns performing chest compression and
mouth-to-mouth resuscitation without waiting for a protective
breathing mask. When the mask finally did arrive, Graziani
initially inserted it backwards. The error was immediately
corrected,3 however, and thereafter the mask was used properly
as Officers Graziani, Stiles, Piatt and Hartman-Swanson took
turns performing mouth-to-mouth resuscitation and chest
compressions. They continued until paramedics arrived and
took Woloszyn to the hospital where he died.

           II. DISTRICT COURT PROCEEDINGS

        Woloszyn’s widow, Patricia, filed the instant § 1983
action and state wrongful death and survival actions against
Lawrence County, William F. Hall, the warden of LCCF, and
Correction Officers Graziani and Sainato. Mrs. Woloszyn filed
the action in her capacity as administratrix of Woloszyn’s estate.
 To state a claim under § 1983, a plaintiff “must allege both a
deprivation of a federally protected right and that this
deprivation was committed by one acting under color of state
law.” Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997). Mrs.


       3
        In her affidavit, Hartman-Swanson explains: “I went
down to observe how they were doing CPR. They were using
a one way mask which was turned the wrong way so they were
not getting any air into him. I turned the mask around and
started breathing. I had to show Captain Adamo how to do
compressions.” However, in his deposition, Graziani testified
that he turned the mask around.

                                8
Woloszyn alleged violations of Woloszyn’s Eighth and
Fourteenth Amendment rights. 4 The defendants filed an answer
denying liability. After discovery, the district court granted the
defendants’ motion for summary judgment, and this appeal
followed.

                      III. DISCUSSION

       We exercise plenary review of the district court’s grant
of summary judgment. Curley v. Klein, 298 F.3d 271, 276 (3d
Cir. 2002). “[W]e review the record to determine whether the
defendants, the moving parties, have demonstrated that there is
no genuine issue of material fact.” Colburn v. Upper Darby
Township, 946 F.2d 1017, 1020 (3d Cir. 1991). In order to
defeat the defendants’ motion, the plaintiff “must introduce
more than a scintilla of evidence showing that there is a genuine
issue for trial; she must introduce evidence from which a
rational finder of fact could find in her favor.” Id. (citation and
internal quotations omitted).

        Mrs. Woloszyn presents two arguments in her appeal.
First, she argues that the district court erred in granting
summary judgment to Correction Officer Graziani because he
failed to make five minute checks on Woloszyn and failed to
have a breathing mask available in a proper location in HB
Unit. Second, she argues that it was error to grant summary


       4
         For clarity, we will refer to the decedent, Richard Lee
Woloszyn, Jr. as “Woloszyn,” and we will refer to his wife,
Patricia, as “Mrs. Woloszyn,” or “Woloszyn’s wife.”

                                9
judgment to Lawrence County and Warden Hall because the
LCCF failed to have adequate polices, procedures and training
in place.

                A. General Legal Principles.

        Woloszyn was a pre-trial detainee when he committed
suicide. We first examined liability under § 1983 for such
suicides in Colburn v. Upper Darby Township, 838 F.2d 663 (3d
Cir. 1988) (“Colburn I”). There, we held that “if [custodial]
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.” Id. at 669. We later elaborated upon that
standard in Colburn v. Upper Darby Township, 946 F.2d 1017
(3d Cir. 1991) (“Colburn II”), where we wrote that

       a plaintiff in a prison suicide case has the burden
       of establishing three elements: (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.

Colburn II, 946 F.2d at 1023.

      In Colburn II, we explained that Colburn I rested
primarily upon the Supreme Court’s decision in Estelle v.
Gamble, 429 U.S. 97 (1976). Estelle involved an Eighth
Amendment claim arising from allegations of inadequate

                                10
medical care.5 Colburn II, 946 F.2d at 1023. We noted in
Colburn II that the Supreme Court held in Estelle, that “prison
officials violate the Eighth Amendment’s proscription of cruel
and unusual punishment when they exhibit ‘deliberate
indifference to serious medical needs of prisoners.’” Colburn II,
at 1023. (citing Estelle, 429 U.S. at 104). The Estelle standard
“‘requires deliberate indifference on the part of prison officials
and [that] the prisoner’s medical needs . . . be serious.’”
Colburn II, 946 F.2d at 1023 (quoting Monmouth County
Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.
1987)).



       5
         Because a pre-trial detainee has not been convicted of
any crime, the due process clause of the Fourteenth Amendment
prohibits the state from imposing punishment. Bell v. Wolfish,
441 U.S. 520, 535 (1979). Nevertheless, in developing our
jurisprudence on pre-trial detainees’ suicides we looked to the
Eighth Amendment, which prohibits the infliction of cruel and
unusual punishment on convicted prisoners, because the due
process rights of pre-trial detainees are at least as great as the
Eighth Amendment rights of convicted and sentenced prisoners,
see Boring v. Kozakiewicz, 833 F.2d 468, 471-472 (3d Cir.
1987), and because “no determination has as yet been made
regarding how much more protection unconvicted prisoners
should receive.” Kost v. Kozakiewicz, 1 F.3d 176, 188 n.10 (3d
Cir. 1993). See Whitley v. Albers, 475 U.S. 312, 327 (1986)
(noting that the Court has reserved the question of whether pre-
trial detainees are entitled to greater protections than convicted
prisoners “outside the prison security context.”)

                               11
       The detainee’s condition must be such that a
       failure to treat can be expected to lead to
       substantial and unnecessary suffering, injury, or
       death. Moreover, the condition must be one that
       has been diagnosed by a physician as requiring
       treatment or one that is so obvious that a lay
       person would easily recognize the necessity for a
       doctor’s attention.

Colburn II, 946 F.2d at 1023 (citation and internal quotations
omitted).

        A particular vulnerability to suicide represents a serious
medical need. Colburn II, 946 F.2d at 1023. “The requirement
of a ‘particular vulnerability to suicide’ speaks to the degree of
risk inherent in the detainee’s condition.” Colburn II, 946 F.2d
at 1024. “[T]here must be a strong likelihood, rather than a
mere possibility, that self-inflicted harm will occur.” Id.
(citations omitted).

        However, “[e]ven where a strong likelihood of suicide
exists, it must be shown that the custodial officials ‘knew or
should have known’ of that strong likelihood.” Colburn II, 946
F.2d at 1024. “[I]t is not necessary that the custodian have a
subjective appreciation of the detainee’s ‘particular
vulnerability.’” Id. at 1024-25. “Nevertheless, there can be no
reckless or deliberate indifference to that risk unless there is
something more culpable on the part of the officials than a
negligent failure to recognize the high risk of suicide.” Id. at
1025. Therefore, the “should have known” element


                               12
       does not refer to a failure to note a risk that would
       be perceived with the use of ordinary prudence.
       It connotes something more than a negligent
       failure to appreciate the risk of suicide presented
       by a particular detainee, though something less
       than subjective appreciation of that risk. The
       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. (citation and internal quotations omitted).

        “[N]either the due process clause with its focus on
arbitrariness and abuse of power, nor the Eighth Amendment
with its focus on the unnecessary and wanton infliction of pain,
imposes liability for a negligent failure to protect a detainee
from self-inflicted injury.” 946 F.2d at 1024. We referred to
that level of culpability as “reckless indifference” in Colburn I.
838 F.2d at 669. In Williams v. Borough of West Chester, 891
F.2d 458, 465 (3d Cir. 1989), a case decided after Colburn I but
before Colburn II, we referred to the heightened culpability that
is required as “deliberate indifference.” However, we did not
elaborate upon those terms in either case. It was not necessary
to elaborate upon either term in Colburn II. Instead, we simply
said that “a level of culpability higher than a negligent failure
to protect from self-inflicted harm is required and . . . this
requirement is relevant to an evaluation of the first two Colburn

                                13
I elements as well as the third.” 946 F.2d at 1024.

       The phrase, “deliberate indifference” first appeared in
Estelle v. Gamble. 429 U.S. at 104. However, the Court did not
define the term with precision. Rather, the Court explained that
it was “a state of mind more blameworthy than negligence.”
Farmer v. Brennan, 511 U.S. 825, 835 (1994). The Court did
more precisely define the phrase in Farmer v. Brennan.
However, there, the Court was referring to the degree of
culpability that would support liability under the Eighth
Amendment. The Court explained:

       [A] prison official cannot be found liable under
       the Eighth Amendment for denying an inmate
       humane conditions of confinement unless the
       official knows of and disregards an excessive risk
       to inmate health and safety; the official must both
       be aware of facts from which the inference could
       be drawn that a substantial risk of serious harm
       exists, and he must also draw the inference.

511 U.S. at 837.

      In Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001),
we placed the following gloss on Farmer:

       To be liable on a deliberate indifference claim, a
       . . . prison official must both know of and
       disregard an excessive risk to inmate health or
       safety. The . . . element of deliberate indifference
       is subjective, not objective . . . meaning that the

                               14
       official must actually be aware of the existence of
       the excessive risk; it is not sufficient that the
       official should have been aware. However,
       subjective knowledge on the part of the official
       can be proved by circumstantial evidence to the
       effect that the excessive risk was so obvious that
       the official must have known of the risk. Finally,
       a defendant can rebut a prima facie demonstration
       of deliberate indifference either by establishing
       that he did not have the requisite level of
       knowledge or awareness of the risk, or that,
       although he did know of the risk, he took
       reasonable steps to prevent the harm from
       occurring.

256 F.3d at 133 (citations, internal quotations and brackets
omitted).

       Farmer defined “deliberate indifference” in the context
of the claim of a convicted prisoner under the Eighth
Amendment. It does not, therefore, directly control our analysis
here because, as we have explained, Woloszyn’s claim arises
under the Due Process Clause of the Fourteenth Amendment.
Nevertheless, because our § 1983 jurisprudence in custodial
suicides borrows the term “deliberate indifference” from Eighth
Amendment jurisprudence, “deliberate indifference” may be
equivalent to the “should have known” element required for §
1983 liability under the Fourteenth Amendment pursuant to
Colburn I and II. However, we need not attempt to reconcile
those two phrases here because there is no evidence on this
record that Woloszyn had a particular vulnerability to suicide.

                               15
Accordingly, his wife can not establish the first element under
Colburn I and II.

                  B. Liability of Graziani.

     Woloszyn’s wife argues that, considering Hartman-
Swanson’s affidavit and Shaftic’s unsworn statement,

       it is clear that Woloszyn was assigned to unit HB
       where . . . Graziani was the assigned corrections
       officer. At the time of Woloszyn’s transfer, he
       was the subject of an order requiring five minute
       suicide checks. After arriving at unit HB,
       Woloszyn requested a counselor. Thereafter,
       Woloszyn engaged in behavior which would have
       alerted any reasonable person to a problem
       including yelling, screaming, and punching which
       . . . Shaftic described as Woloszyn going “nuts.”
       In spite of all of this, . . . Graziani, by his own
       admission to . . . [Hartman-Swanson] “was
       supposed to do five minute checks but did not go
       up to check until he was found.”

Mrs. Woloszyn argues that Graziani was therefore aware of
Woloszyn’s vulnerability to suicide because he was ordered to
perform 5 minute checks, and his failure to do so establishes the
requisite reckless indifference to Woloszyn’s vulnerability.

      However, her argument reads too much into this record.
Woloszyn was not subject to five minute suicide checks. In fact,
he was not under five minute checks at all. Adamo did tell

                               16
Hartman-Swanson that he would put Woloszyn on five minute
checks, but Hartman-Swanson also affirmed that Adamo
thereafter stated he would follow the nurse’s advice. Nurse
Houck testified that W oloszyn was polite, cooperative and alert,
and oriented in place and time. Woloszyn did not request a
counselor or psychiatrist and, absent Shaftic’s “statement,” there
was no indication that Woloszyn needed one or that he intended
to harm himself. Therefore, Houck did not place Woloszyn on
a suicide watch or order five minute checks on his cell. Instead,
she merely placed him on one hour checks for signs of alcohol
withdrawal. Accordingly, Adamo placed Woloszyn on one hour
checks as the nurse suggested or ordered, but he was to be
observed for signs of withdrawal; he was not on a suicide watch
as Mrs. Woloszyn now argues.

       Furthermore, Mrs. Woloszyn has not shown that there are
any genuine issues of material fact as to Woloszyn’s particular
vulnerability to suicide. As we explained in Colburn II, “the
requirement of a ‘particular vulnerability to suicide’ speaks to
the degree of risk inherent in the detainees condition. . . .
[T]here must be ‘a strong likelihood, rather than a mere
possibility, that self-inflicted harm will occur.’” 946 F.3d at
1024. Officer List testified that when he, Lt. Gilchrist and
Woloszyn arrived at the LCCF, Woloszyn appeared to be in
good spirits and was talking and joking with them. Hartman-
Swanson affirmed that Woloszyn specifically denied being
suicidal. Additionally, Hartman-Swanson indicated in the
Booking Questionnaire that there was nothing in Woloszyn’s
conduct or actions that suggested that Woloszyn was suicidal.
As we have just noted, Nurse Houck did not recommend a
suicide watch because Woloszyn’s medical assessment did not

                               17
suggest that was necessary or appropriate. Graziani and Sainato
both testified that Woloszyn’s behavior upon arrival at the HB
unit was unremarkable.         Finally, Graziani testified that
Woloszyn spelled his name to him and told Graziani that he
wanted a glass of juice in the morning.

       Mrs. Woloszyn argues that statements in Hartman-
Swanson’s affidavit demonstrate that Woloszyn had a particular
vulnerability to suicide. As noted above, Hartman-Swanson said
that Woloszyn was remorseful and distant, was not answering
her questions, was talking about having failed as a father; and
he admitted having been on a 24 hour drug and alcohol binge.
 However, we do not think such statements, without more, are
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.”

       We also must disagree with Mrs. Woloszyn’s
interpretation of another reference in the Hartman-Swanson
affidavit. In her affidavit, Hartman-Swanson stated:

      Matthew Graziani told me he was supposed to do
      five minute checks but did not go up to check
      until [Woloszyn] was found. He was remorseful
      at the time and said “but Linda I did not go up
      and check on him.” More recently Matthew
      Graziani said it was no big thing, it was just
      another druggy. This was a couple of days later.

That statement would allow a reasonable juror to conclude that

                              18
Graziani should have been checking on Woloszyn every five
minutes and that he failed to do so. It would also allow the fact
finder to conclude that Graziani was callous and unsympathetic.
However, it would still not establish a particular vulnerability
that would create a strong likelihood of suicide. That reference
to Graziani does not, therefore, advance the appropriate inquiry
under Colburn I and II.

        The only evidence that could raise a genuine issue of
material fact on this record is Shaftic’s unsworn statement. The
district court did not consider that statement. The court
reasoned that since the statement was not in affidavit form, it
was not “sufficient . . . to rely upon . . . in disposing of the
pending motion for summary judgment.”            We believe the
court’s handling of that unsworn statement was appropriate. See
Adickes v. S. H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)
(noting that an unsworn statement does not satisfy the
requirements of Fed.R.Civ.P. 56(e)).

       Woloszyn’s wife did file an appropriate motion to
prevent the entry of summary judgment under Fed.R.Civ.P.
56(f).     That Rule, captioned “When Affidavits are
Unavailable,” provides:

       Should it appear from the affidavits of a party
       opposing the motion that the party cannot, for
       reasons stated, present by affidavit facts essential
       to justify the party's opposition, the court may
       refuse the application for judgment or may order
       a continuance to permit affidavits to be obtained
       or depositions to be taken or discovery to be had

                               19
         or may make such other order as is just.

Fed.R.Civ.P. 56(f). Shaftic’s unsworn statement was dated
March 28, 2000. In an affidavit attached to the Rule 56(f)
motion, counsel for Mrs. Woloszyn affirmed that he was unable
to obtain a sworn affidavit from Shaftic because he was a
fugitive. However, counsel also intimated that Shaftic had been
incarcerated at the LCCF, but that prison officials had informed
counsel that Shaftic had been released. In any event,
Woloszyn’s wife asked the district court to deny the defendants’
motion for summary judgment because she could not then locate
Shaftic to obtain his sworn statement or depose him.

         In denying Mrs. Woloszyn’s Rule 56(f) motion, the court
wrote:

         It is further noted, that nearly 3 years after the
         “statement” was provided, and only after briefing
         and conferences with this Court occurred with
         respect to summary judgment, that [Mrs.
         Woloszyn] moved this Court pursuant to F.R.C.P.
         56(f) to deny summary judgment. That Motion
         was denied based upon the fact that the [she] had
         previously responded in substance to the pending
         Motion for Summary Judgment.

Mrs. Woloszyn does not now argue that the district court abused




                                20
its discretion in denying her Rule 56(f) motion.6 Rather, she
contends that the court should have granted it without giving
reason or authority for that contention. Moreover, she does not
now claim that she would have been able to obtain an affidavit
from Shaftic or depose him had she been afforded that
opportunity.

       Finally, Mrs. Woloszyn argues that the district court erred
by granting summary judgment to Graziani because Graziani
failed “to maintain a breathing mask in a proper location.”
However, that argument borders on frivolity. Earlier, we noted
that Stiles and Graziani performed CPR while another
corrections officer went to look for a protective breathing mask.
 In Mrs. Woloszyn’s view, “Graziani’s failure to maintain a
breathing mask in its designated location is an independent basis
for denial of summary judgment” because it shows his deliberate
indifference. However, she points to nothing in the record that
suggests that Graziani was responsible for ensuring that a
protective breathing mask would always be present in HB Unit.
 More importantly, Stiles and Graziani immediately initiated
CPR on Woloszyn without waiting for a protective mask to
arrive. They continued administering CPR, apparently in
disregard for their own safety and hygiene, until Corrections
Officer Piatt returned with a protective breathing mask. Aside
from suggesting that Graziani’s deposition is self-serving, Mrs.
Woloszyn offers nothing to contradict Graziani’s testimony that


       6
       We review the district court’s denial of a Rule 56(f)
motion for discovery under an abuse of discretion standard.
Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002).

                               21
he started CPR immediately. Moreover, Mrs. Woloszyn does
not claim that immediate use of a protective breathing mask
would somehow have prevented Woloszyn’s death.

      Thus, even assuming arguendo that Graziani was
responsible for ensuring that a protective mask was available in
the HB Unit, its unavailability has no bearing on the issues here.
Colburn II, 946 F.2d at 1024.

              C. Liability of Lawrence County.

        Mrs. Woloszyn argues that the county is liable because
it failed to train its corrections officers to identify and prevent
suicides, and failed to provide them with readily available
equipment to resuscitate inmates who might attempt suicide.

       Municipal liability can be predicated upon a failure to
train. City of Canton v. Harris, 489 U.S. 378 (1989).7
However, a municipality is only liable for failing to train when
that “failure amounts to ‘deliberate indifference to the
[constitutional] rights of persons with whom the police come in
contact.’” Colburn II, at 1028 (quoting City of Canton, 489 U.S.
at 388).

       Only where a municipality’s failure to train its
       employees in relevant respect evidences a


       7
        In City of Canton, the plaintiff claimed that her
constitutional rights were violated when she was denied medical
care while detained in municipal jail.

                                22
       “deliberate indifference” to the rights of its
       inhabitants can such a shortcoming be properly
       thought of as a city “policy or custom” that is
       actionable under § 1983. . . . Only where a failure
       to train reflects a “deliberate” or “conscious”
       choice by a municipality – a “policy” as defined
       by our prior cases – can a city be liable for such a
       failure under § 1983.

City of Canton, 489 U.S. at 389. Therefore, not all failures or
lapses in training will support liability under § 1983. M oreover,
“‘the identified deficiency in [the] training program must be
closely related to the ultimate [constitutional] injury.” Colburn
II, 946 F.2d at 1028 (quoting City of Canton, 489 U.S. at 391).
In City of Canton, the Court stressed that a plaintiff asserting a
failure to train theory is “required to prove that the deficiency in
training actually caused [the constitutional violation, i.e.,] the
[police custodian’s] indifference to her medical needs.” City of
Canton, at 391.

      In discussing liability for a failure to train claim in the
context of a prison suicide, we have explained:

       City of Canton teaches that . . . [i]n a prison
       suicide case, [under § 1983] . . . the plaintiff must
       (1) identify specific training not provided that
       could reasonably be expected to prevent the
       suicide that occurred, and (2) must 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

                                23
       the training program to provide it can reasonably
       be attributed to a deliberate indifference to
       whether the detainees succeed in taking their
       lives.

Colburn II, 946 F.2d at 1029-30.

       Here, Woloszyn’s wife points to the affidavit and report
of R. Paul McCauley, Ph.D., a professor of criminology and
former chairperson of the Department of Criminology at Indiana
University of Pennsylvania. He identified the following as
deficiencies in Lawrence County’s training:

       The facility failed to have in place appropriate
       intake documents necessary to the evaluation and
       prevention of suicide;

       The facility failed to have in place a policy which
       would have resulted in Woloszyn either being
       placed in a cell for prisoners at risk for suicide or
       with another person. Instead, Mr. Woloszyn was
       assigned to a cell with vented bunk (i.e. with an
       open hole through which a blanket could be tied)
       and a blanket. Mr. Woloszyn’s suicide occurred
       by use of the vent and blanket;

       The staff was not qualified to assess and prevent
       suicide;

       Emergency medical equipment was not located
       and personnel were not properly trained in its use.

                                24
        The training deficiencies McCauley identified are as
broad and general as they are conclusory. Prof. McCauley does
not identify specific training that would have alerted LCCF
personnel to the fact that Woloszyn was suicidal as Colburn I
and II require. He also concludes that Hartman-Swanson “was
not trained in suicide prevention and did not have a way to
formally prepare a meaningful suicide risk assessment for Mr.
Woloszyn.” However, he never identified specific training that
could reasonably have caused Hartman-Swanson to assess
whether Woloszyn’s behavior and demeanor indicated that
Woloszyn posed a risk of suicide.8

        McCauley also opined that Lawrence County’s training
was deficient because emergency medical equipment was not
available in HB Unit and personnel were not properly trained in
its use. This alleged deficiency relates to Mrs. Woloszyn’s
claim that a protective breathing mask was not immediately
available, and that it was inserted backwards when finally
brought to the HB unit. However, we have already explained
that Stiles and Graziani started CPR without waiting for a
protective breathing mask, and there is no suggestion that they
did so improperly. Therefore, we fail to see the significance of
the initial absence of a breathing mask. In addition, even if
Graziani’s improper initial insertion of the breathing mask
resulted from a lack of training, nothing suggests that it was a


       8
        For purposes of our analysis, we assume arguendo that
Woloszyn’s conversation with Hartman-Swanson suggested a
“particular vulnerability to suicide.”

                              25
significant factor in Woloszyn’s tragic death.

       The initial unavailability of a breathing mask, and
Graziani’s improper insertion of it arguably establishes simple
negligence, but is little more than a red herring insofar as our
inquiry into deliberate indifference is concerned.

                D. Liability of Warden Hall.

       Mrs. Woloszyn argues that Warden Hall is individually
liable because, as warden of LCCF, he failed “to implement
proper training, policies and procedures.” Warden Hall can be
liable individually under § 1983. See Stoneking v. Bradford
Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989). The
training, policies and procedures that Mrs. Woloszyn relies
upon to establish Hall’s liability are rooted in the McCauley
affidavit that we have just discussed. We have explained that
that affidavit fails to specify training that could have alerted
LCCF personnel to Woloszyn’s potential for suicide.
Accordingly, the district court did not err in granting summary
judgment to Warden Hall.

                    IV. CONCLUSION

       For all of the above reasons, we will affirm the district
court’s grant of summary judgment to the custodial officials
responsible for Woloszyn’s custody and the governmental unit
which employs them.




                              26
