NOT PRECEDENTIAL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)
2

_______________

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 
3

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 
4

requires “„a level of culpability higher than a negligent failure to protect from selfinflicted 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. 
5

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 
6

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.