                                                NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                         _______________

                              No. 11-4174
                            _______________

                          MARVA BAEZ,
       INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE
                 OF LUIS VILLAFANE, DECEASED,

                                                Appellant

                                     v.

 LANCASTER COUNTY; VINCENT GUARINI, WARDEN LANCASTER COUNTY
PRISON; CORRECTIONAL OFFICER BYRD; CORRECTIONALOFFICER SHEPPO;
 CORRECTIONAL OFFICER PLUMBER; DOE 1-10, CORRECTIONAL OFFICERS;
 JACOBS, CORRECTIONAL SERGEANT; PRIMECARE MEDICAL INC., CARL A.
         HOFFMAN, JR., D.O., CCHP, PRESIDENT AND CORPORATE
     MEDICAL DIRECTOR; DR.ROBERT DOE; NURSE CINDY DICKERT

                            _______________

              On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                      (D.C. Civil No. 5-09-cv-02745)
              District Judge: Honorable Lawrence F. Stengel
                            _______________

              Submitted Pursuant to Third Circuit LAR 34.1(a)
                               June 8, 2012

     BEFORE: SCIRICA, GREENAWAY, JR. and COWEN, Circuit Judges

                            (Filed: July 2, 2012)
                                     _______________

                                        OPINION
                                     _______________


COWEN, Circuit Judge.

       Plaintiff brought this action pursuant to 42 U.S.C. § 1983 on behalf of her brother,

Luis Villafane, who took his own life while in pretrial detention at Lancaster County

Prison (“LCP”) from September 22, 2008 through November 19, 2008. Plaintiff alleges

that defendants violated Villafane‟s Eighth and Fourteenth Amendment rights because

they were deliberately indifferent to Villafane‟s serious medical condition, which led to

his suicide, and used excessive force on Villafane while he was in custody. The district

court granted defendants‟ motion for summary judgment and dismissed plaintiff‟s claims.

       We review a grant of summary judgment de novo and apply the same standard as

the district court. Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). Under that standard,

we conclude that there are no genuine issues of material fact and will affirm the district

court‟s judgment. Id.

       (A)    To establish a claim for deliberate indifference on the basis of Villafane‟s

suicide, plaintiff must show “(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 v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Even

assuming that Villafane had a “particular vulnerability to suicide,” no reasonable juror


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could conclude, based on the evidence, that the likelihood of suicide was “so obvious” or

“easily recognized” to a layperson that the officers “knew or should have known” of that

vulnerability. Woloszyn v. County of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005). Here,

Villafane expressed a suicidal ideation to Officer Jacob while being taken to the medical

unit. The following day he was evaluated by the psychologist who did not think that

Villafane was suicidal. Nevertheless, Villafane remained in the medical unit and under

suicide watch for approximately a week. He showed signs of improvement and was taken

off suicide watch, given access to sheets and his possessions, and remained in the medical

unit for approximately another ten days. His psychologist observed that he had improved

and Villafane asked to go back to general population. The day before Villafane was

transferred back to general population by Officer Byrd, he had been evaluated by the

psychologist who confirmed that Villafane was not suicidal. Byrd testified that Villafane

seemed in good spirits. Considering that no suicide attempt was ever made while in

detention and Villafane had been given access to bed sheets and his possessions while

still in the medical unit, the possibility that he might commit suicide as evidenced by his

suicidal ideations 18 days earlier does not support a “„strong likelihood of suicide . . . so

obvious that a lay person would easily recognize‟” it. Id. (quoting Colburn, 946 F.2d at

1025). Indeed, the likelihood that Villafane would harm himself was not obvious to the

psychologist, let alone a layperson.

       There is also no evidence of “reckless indifference.” “Reckless indifference” has

been treated synonymously with “deliberate indifference” and “gross negligence,” and


                                              3
requires “„a level of culpability higher than a negligent failure to protect from self-

inflicted harm.‟” Id. at 321 (quoting Colburn, 946 F.2d at 1025). When Villafane

expressed his suicidal thoughts to Jacob, Jacob alerted the nurse and Villafane was

subsequently put on suicide watch. He was under the care and evaluation of the

psychologist for the entire 18 days that he was in the medical unit, and taken off suicide

watch after 7 days. For the brief time Villafane was under Byrd‟s charge, the evidence

suggests that Byrd was sensitive to his mental state of mind and checked in with him to

ensure that he was okay. He told Villafane to talk to him if he needed anything. Nothing

in Byrd‟s interactions with Villafane suggested that Villafane was suicidal.

       Even in the light most favorable to the plaintiff, the evidence suggests that all

those in charge of Villafane were sensitive to a potential that Villafane was suicidal and

took more than necessary precautions based on the available information and

circumstances as they appeared. Indeed, the only evidence that suggests that defendants

were anything less than sensitive to Villafane‟s state of mind was a speculation by one of

the inmate witnesses that Officer Shepos told Villafane to kill himself on the day of the

incident; the parties agree that Officer Shepos was not working that day. Even if he had

been, since there is no other evidence that Shepos knew or should have known of a

substantial risk that Villafane would harm himself, this potential comment by Shepos is

not sufficient for plaintiff to succeed on her deliberate indifference claim. And nothing

suggests who else heard that comment and could be considered to have been deliberately

indifferent to it. See Williams v. Borough of West Chester, Pa., 891 F.2d 458, 466 (3d Cir.


                                              4
1989) (plaintiffs had adduced some circumstantial evidence tending to show deliberate

indifference, but it was not enough to survive summary judgment). In light of the

foregoing, the defendants were not deliberately indifferent to Villafane‟s medical needs.

       (B)    The only actions implicated by plaintiff‟s excessive force claim are those of

Sergeant Jacob. Jacob used an Electronic Body Immobilization Device (“EBID”) to

subdue Villafane when he refused to return to his cell after several requests and a physical

struggle. To establish a claim for use of excessive force in violation of the Due Process

Clause of the Fourteenth Amendment, plaintiff must show that the force used was applied

“maliciously and sadistically to cause harm” and not “in a good-faith effort to maintain or

restore discipline.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). In making this inquiry,

the Supreme Court has highlighted five factors: “(1) the need for the application of the

force;” (2) “the relationship between the need and the amount of force that was used;” (3)

“the extent of the injury inflicted;” (4) “the extent of the threat to the safety of staff and

inmates, as reasonably perceived by responsible officials on the basis of facts known to

them;” and (5) “any efforts made to temper the severity of a forceful response.” Whitley v.

Albers, 475 U.S. 312, 321 (1986).

       Here, Sergeant Jacob used the EBID only after repeated attempts to get Villafane

to return to his cell and the use of less force did not work. He used the EBID for

approximately ten seconds, subdued Villafane, and took him to the medical unit for

treatment of his injuries. There is no evidence that malice instigated the use of force. In

light of the necessity to maintain order and Villafane‟s disobedience, Sergeant Jacob‟s


                                               5
conduct does not “shock[ ] the conscience.” Fuentes v. Wagner, 206 F.3d 335, 349 (3d

Cir. 2000).

       (C)     Plaintiff must establish an underlying constitutional violation to attribute

liability to the County pursuant to Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

658 (1978). For the foregoing reasons, she has not done so. The claim against Warden

Guarini in his official capacity is duplicative of the suit against the County. As a result,

summary judgment was properly granted in favor of the County and Warden Guarini in

his official capacity.

       The judgment of the district court is affirmed.




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