                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                           NOT PRECEDENTIAL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.




                                            11
