NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 21-1416 

________________ 

DOMINIQUE DIORIO, (administratrix of the estate of Joseph Diorio), 

 Appellant 

v. 

 

SUPERINTENDENT LAUREL R. HARRY; L.P.N. KATHERINE MACKIE; R.N. UZA 

JESUSA JACOBY; R.N. JOSEPH SILVA; M.D. R LAURENCE; R.N. BETH HERB; 

PH.D. LUCAS MALISHCHAK; WILLIAM WARNER; JAMES SIMMS; JAMES 

PREBICH; ANTHONY RICCI; BLAINE HUGNEY; MICHELLE NARDOZZI 

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-16-cv-01678) 

Magistrate Judge: Honorable Karoline Mehalchick** 

Submitted Pursuant to L.A.R. 34.1(a) on 

December 13, 2021 

________________ 

Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges

(Opinion filed: August 1, 2022) 

OPINION*

*

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

GREENAWAY, JR., Circuit Judge

Losing a loved one to suicide is a tragic event. When such tragedy occurs while 

one is in custody is also baffling. Unfortunately, all tragedies do not provide those 

grieving with a path to recovery in civil litigation. Here, Appellant appeals the District 

Court’s grant of summary judgment to Defendants—state employees—after the suicide 

of her husband while in custody at a state correctional institution. The District Court’s 

grant of summary judgment was not in error. We will affirm.

I

The Pennsylvania Department of Corrections maintains procedures for assessing a 

detainee’s mental health once an individual arrives and throughout their period in 

custody. The procedures include transferring prior suicide risk screenings and 

conducting new ones, such as when a person is placed in the Restricted Housing Unit 

(“RHU”). The procedures also include immediately referring to psychologists any 

individual who presents certain risk indicators of suicide, and contingencies for times 

when practitioners are unavailable. 

Mr. Joseph Diorio entered State Correctional Institution (“SCI”) Graterford on 

May 5, 2014. Upon entry, he completed two Suicide Indicator Checklists, in addition to 

a mental health questionnaire. He answered affirmatively to three risk indicators on the 

first checklist, and to one risk indicator on the second checklist. These indicator 

** Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties consented to the 

Magistrate Judge conducting all proceedings and ordering the entry of final judgment. 
3

categories included “Inmate shows signs of depression,” “Inmate has recent family 

change,” and “Inmate has recent legal status change.” The first checklist also included a 

note that he “fe[lt] depressed” and had a daughter born the prior month. Although in his 

Initial Reception Mental Health Questionnaire he reported that he did not have a history 

of suicide attempts, he reported having seen a psychologist two years prior following the 

death of his father in 2012. He also revealed that he had a history of depression, may 

have taken drugs within “[d]ays” of arriving to the facility, and had been prescribed 

psychotropic medication in the past. He denied current suicidal ideations or past 

instances of trying to hurt or kill himself. 

When he was transferred to SCI Camp Hill four days later, Mr. Diorio disclosed in 

his transfer system paperwork that he had had a history of depression, though he again 

denied current thoughts of self-harm. He also denied being on any current medication. 

Because of his history of depression and anxiety, the facility placed Mr. Diorio on a list 

for follow-up services with the psychology department. However, the next day, Mr. 

Diorio was placed in the RHU pending a hearing on misconduct for refusing to return to 

his cell and swearing at an officer in protest. Unbeknownst to any prison personnel, Mr. 

Dioro was allegedly being harassed by other detainees and incorrectly targeted as both

gay and a child molester. 

When he arrived at the RHU, he completed another suicide checklist. Mr. Diorio 

answered affirmatively to one of the suicide risk indicators, but denied suicidal ideations

or other hallucinations. Because it was a weekend, at a time when a psychologist was 

unavailable, licensed practical nurse Katherine Mackie (“Mackie”) was contacted. She 
4

conducted a follow-up assessment that same day. During the assessment, Mr. Diorio 

once again did not reveal any issues with other detainees. He disclosed this information 

three days later, on May 13, 2014, during the misconduct hearing. He also, for the first 

time, requested protective custody and shared that he feared for his life. The hearing 

examiner did not report Mr. Diorio’s fears to anyone. Mr. Diorio committed suicide the 

next day on May 14, 2014. 

Appellant, widow and administratrix of Mr. Diorio’s estate, sued the named 

Defendants, all of whom are state employees of the Pennsylvania Department of 

Corrections. 1 Appellant sought various damages on four counts arising under 42 U.S.C. 

§ 1983 and state law. The District Court granted summary judgment to Defendants on all 

four counts. Appellant now appeals.2

 

II

The District Court had jurisdiction over the federal civil rights and state law

claims pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction to review 

the District Court’s summary judgment ruling pursuant to 28 U.S.C. § 1291. 

1 Although all of the individual Defendants were employees of the State, not all held 

positions at SCI Camp Hill. 

2 Appellant’s lawsuit named Laurel Harry, Joseph Silva, Lucas Malishchak, Beth Herb, 

Katherine Mackie, Liza Jacoby, James Simms, William Warner, James Prebich, Anthony 

Ricci, Blaine Hugney, and Michelle Nardozzi. In her brief in opposition to the motion 

for summary judgment, Appellant voluntarily dismissed her claims against Jacoby, 

Laurence, Silva, Warner, Simms, Prebich, Ricci, Hugney, and Nardozzi. The District 

Court nevertheless granted summary judgment as to all Appellees, including the 

voluntarily dismissed Appellees. On appeal, Appellant challenges the grant of summary 

judgment as to all Appellees, including those she previously had claimed to have 

voluntarily dismissed. We address this issue in Section III, infra.
5

This Court exercises plenary review and applies the same standards as the district 

court when reviewing motions for summary judgment. Hall v. Millersville Univ., 22 

F.4th 397, 402 (3d Cir. 2022). Summary judgment is appropriate only if “the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We may only review “the record as 

it existed at the time summary judgment was entered.” Webb v. City of Phila., 562 F.3d 

256, 259 (3d Cir. 2009) (citation and internal quotation marks omitted). 

III

Appellant appeals the District Court’s grant of summary judgment on four claims 

arising under 42 U.S.C. § 1983: deliberate indifference, Monell/failure to train liability, 

supervisory liability, and conspiracy in violation of state law. We hold that summary 

judgment was appropriately granted to Defendants-Appellees on all claims, and we will 

address each claim in turn. Before turning to the merits, however, we must address the 

District Court’s decision to grant summary judgment to all named defendants. 

Appellant’s lawsuit originally named Laurel Harry, Joseph Silva, Lucas 

Malishchak, Beth Herb, Katherine Mackie, Liza Jacoby, James Simms, William Warner, 

James Prebich, Anthony Ricci, Blaine Hugney, and Michelle Nardozzi. In her brief in 

opposition to the motion for summary judgment, Appellant purported to voluntarily 

dismiss her claims against Jacoby, Laurence, Silva, Warner, Simms, Prebich, Ricci, 

Hugney, and Nardozzi. Without issuing a court order or further addressing the 

purportedly dismissed defendants, the District Court granted summary judgment as to all 

defendants. This was error. 
6

Federal Rule of Civil Procedure 56(a) provides that a court granting summary 

judgment “should state on the record the reasons for granting or denying the motion.” 

Fed. R. Civ. P. 56(a). Here, the District Court acknowledged Appellant’s purported 

dismissal of several defendants, but it never stated any other reason for granting summary 

judgment as to the “dismissed” defendants. To the extent that the District Court granted 

summary judgment on the basis of a dismissal that never occurred, that decision was in 

error. 3

 Accordingly, we will vacate District Court’s grant of summary judgment as to 

Defendants Jacoby, Laurence, Silva, Warner, Simms, Prebich, Ricci, Hugney, and 

Nardozzi and remand with instructions to either enter an order dismissing the claims 

against those defendants or to enter a summary judgment order with reasons.

A. Deliberate Indifference

The Eighth Amendment of the Constitution of the United States prohibits 

inhumane conditions or treatment of incarcerated persons. Farmer v. Brennan, 511 U.S. 

3 While we have recognized that Federal Rule of Civil Procedure 41(a)(1)(A) allows a 

plaintiff to dismiss claims against individual defendants without a court order, see Noga 

v. Fulton Financial Corp. Employee Benefit Plan, 19 F.4th 264, 271 n.3 (3d Cir. 2021) 

(citing Young v. Wilky Carrier Corp., 150 F.2d 764, 764 (3d Cir. 1945)), that rule only 

allows for voluntary dismissal via either: “(i) a notice of dismissal before the opposing 

party serves either an answer or a motion for summary judgment; or (ii) a stipulation of 

dismissal signed by all parties who have appeared,” Fed. R. Civ. P. 41(a)(A). Here, 

Appellant only “dismissed” the other defendants in her brief in opposition after a motion 

for summary judgment was filed, and there is no record of a signed stipulation by all 

parties. Accordingly, Rule 41(a) did not permit voluntary dismissal by Appellant. 

Instead, the District Court should have issued a court order pursuant to Federal Rule of 

Civil Procedure 41(a)(2) or granted summary judgment with reasoning as to the 

purportedly dismissed defendants in accordance with Federal Rule of Civil Procedure 

56(a). 
7

825, 832–33 (1994) (citations omitted). Under this Amendment, the suicide of a person 

in correctional custody may support recovery under 42 U.S.C. § 1983. Colburn v. Upper 

Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (citations omitted) (“Colburn II”). But, 

such claims “present[] difficult issues because no state actor directly inflicted harm on 

[the individual].” Id. at 1023. 

The successful appellant must show that state officials were deliberately or 

recklessly indifferent to the risk of suicide. Farmer, 511 U.S. at 828 (citations omitted) 

(“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an 

inmate violates the Eighth Amendment.”). This showing entails demonstrating: (1) that 

the person who committed suicide had a particular vulnerability to suicide; (2) that the 

custodial official knew or should have known about; and (3) that the custodial official 

acted with deliberate or reckless indifference to the person’s particular vulnerability. 

Palakovic v. Wetzel, 854 F.3d 209, 218 (3d Cir. 2017) (citations omitted). These three 

elements are conjunctive, so the absence of one is fatal to the claim. Colburn II, 946 F.2d 

at 1026–27 (disposing of a deliberate indifference claim where the custodial official did 

not know or have reason to know of the decedent’s particular vulnerability to suicide). 

In the case before us, the District Court found that although Mr. Diorio had a 

particular vulnerability to suicide, correctional officials did not know of that 

vulnerability. We disagree with the District Court that Mr. Diorio had a particular 

vulnerability to suicide.4

 Further, even assuming for the sake of argument that a 

4 The District Court did not reach the deliberate or reckless indifference element. 

Generally, we will not address an issue that has not first been passed on by the district 
8

reasonable juror could conclude that the state knew or should have known of the 

vulnerability, there is no evidence that the state acted with deliberate indifference to that 

knowledge. Thus, as explained further below, we will affirm the District Court’s grant of 

summary judgment to Defendants on the deliberate indifference claim.

1. Particular Vulnerability

A particular vulnerability to suicide “speaks to the degree of risk inherent in the 

detainee’s condition.” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005) 

(citation and internal quotation marks omitted). There must be a “strong likelihood, 

rather than a mere possibility, that self-inflicted harm will occur.” Id. (quoting Colburn 

II, 946 F.2d at 1024). This “strong likelihood of suicide . . . [must also have been] so 

obvious that a lay person would easily recognize the necessity for preventative action.” 

Id. (quoting Colburn II, 946 F.2d at 1025). The District Court found that Appellant

presented sufficient evidence for a reasonable juror to conclude that Mr. Diorio had a 

particular vulnerability to suicide. We disagree. 

Our precedent requires that in order to satisfy particular vulnerability, there must 

be a “strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.” 

Woloszyn, 396 F.3d at 320. Based on this standard, the facts in the record here are 

court. Goldenstein v. Repossessors Inc., 815 F.3d 142, 149 (3d Cir. 2016). However, 

“when the factual record is developed and the issues provide purely legal questions, upon 

which an appellate court exercises plenary review,” we may make an exception. Id.

(citation and internal quotation marks omitted). The deliberate indifference element 

presents a legal question. The case before us is an appeal from a motion for summary 

judgment, which indicates that the record is fully, factually developed. Therefore, in 

Section III.A.3, infra, we address the final element of the deliberate indifference claim 

even though the District Court did not. 
9

insufficient for a reasonable juror to conclude that Mr. Diorio was particularly vulnerable 

to suicide at the time it occurred.

Among other opinions, Appellant’s expert’s report stated that: (1) individuals who 

newly arrive to a correctional institution are at a heightened risk for suicide; (2) it is well 

known in the medical field that combined depression and anxiety heightens the risk of 

suicide; (3) a more thorough, formal evaluation should have been completed sooner and 

Mr. Diorio should have been monitored until the evaluation occurred; and (4) individuals 

who fear for their safety and request protective custody are “at extremely high risk for 

suicide if that protective custody is denied.” R.R. 28–29. Yet, the underlying facts in 

this case fall short of the “strong likelihood” standard as we have recently applied it.

In Palakovic, we concluded that the decedent had a particular vulnerability to 

suicide. Palakovic, 854 F.3d at 230. The decedent there informed staff that he had 

attempted suicide in the past and engaged in self-inflicted harm within 8 months of 

arriving at the state facility. Id. at 216. In fact, the decedent had also informed staff that 

he had “made plans about how to kill himself.” Id. The decedent also had “an array of

serious mental health issues” known to heighten the risk of self-harm, id. at 226, 230,

received the Pennsylvania Department of Correction’s lowest mental health stability 

rating, id. at 216, and experienced “‘multiple 30[-]day stints in solitary confinement’” 

while at the facility, id. at 217. Even more, all of this happened in the context of a visit

by the United States Department of Justice specifically investigating allegations that the 

facility had “provided inadequate mental health care to prisoners who have mental 
10

illness, [and] failed to adequately protect such prisoners from harm[,]” among other 

issues. Id. 

There are notable differences between Palakovic and the present case. Although 

Mr. Diorio presented with three suicide risk indicators in his first questionnaire, he 

reported a single risk for each of his two succeeding questionnaires. Further, whereas the 

decedent in Palakovic had a history of self-harm and revealed to staff his plans to kill 

himself, Mr. Diorio repeatedly denied current suicidal ideations or past instances of 

trying to hurt or kill himself. Palakovic, 854 F.3d at 216. As to his confinement, 

although Mr. Diorio spent three days in the RHU, this duration was far less than the 

multiple 30-day stints preceding the decedent’s suicide in Palakovic. Id. at 216–17. 

Finally, though Mr. Diorio had a history of depression, the record does not show the same 

“array of serious mental health issues” that contributed to the strong likelihood of the 

decedent’s suicide in Palakovic. Id. at 226.

Under the facts presented, we cannot conclude, as is necessary, that Mr. Diorio’s 

suicide was “so obvious that a lay person would easily recognize the necessity for 

preventative action.” Woloszyn, 396 F.3d at 320 (citation and internal quotation marks 

omitted). Therefore, we disagree with the District Court on this prong. 

2. Subjective Knowledge

Proving a particular vulnerability is only the threshold requirement of a deliberate 

indifference claim. A successful appellant must also demonstrate that the custodial 

officials knew or should have known of the vulnerability. Colburn II, 946 F.2d at 1024. 

The custodial officials need not have “a subjective appreciation of the detainee’s 
11

‘particular vulnerability’ . . . [yet there must be] something more culpable on the part of 

the officials than a negligent failure to recognize the high risk of suicide.” Id. at 1025. 

The District Court concluded that Appellant was unable to satisfy this element. It 

reasoned that “Mackie did not have actual knowledge as to Decedent’s vulnerability to 

suicide because she did not view any of the documents that would have pointed to an 

assumption of such vulnerability.” R.R. 97. Although our case law does not require 

actual knowledge, Colburn II, 946 F.2d at 1024, there must still be enough in the record 

to establish that defendants knew or should have known that the harm would come about. 

See Palakovic, 854 F.3d at 229–31. Such is not the case here. 

Appellant argues that licensed practical nurse Mackie lied under oath when she 

denied knowledge of Mr. Diorio’s particular vulnerability to suicide. She asserts that 

Mackie’s truthfulness is something for a jury to determine. 5

 The evidence that might be 

5 In addition to discussing Mackie’s deposition, Appellant also discusses the depositions 

of Beth Herb and Ezioma Onwukanjo, both of whom were registered nurses at the 

facility. Appellant asserts that Herb’s deposition clearly shows that Mr. Diorio’s records 

(i.e., his prior suicide risk indicator checklists) would have been transferred from SCI 

Graterford to SCI Camp Hill as a matter of processing. Appellant’s Br. at 12 (citing R.R. 

235–36). In the cited deposition pages for Herb, Herb’s response to the question whether 

“medical and psychological records come with [transferees]” was “[t]hat’s my 

understanding, yes.” R.R. 236. However, although Herb stated that she had “seen” the 

initial mental health questionnaire, the deposition question and response were unclear as 

to when Herb saw the form and in what context. Id. For instance, she could have seen 

the form in preparation for the deposition. As the transcript later clarified, Herb was 

being deposed as a designated representative for Rule 30(b)(6) purposes; she was “not a 

fact witness” because she “had no interaction at all . . . with Mr. Diorio.” Id. at 238. 

Appellant also asserts that Onwukanjo, who is not a defendant in this lawsuit, 

affirmatively testified that she saw Mr. Diorio’s medical chart. Appellant’s Br. at 12 

(citing R.R. 129–32). In her deposition, Onwukanjo stated that she reviewed Mr. 

Diorio’s medical chart and referred him to psychology because he was not on medication. 
12

pointed to in the record in support of this element appears as a part of hypotheticals posed 

to Mackie during her deposition. At the time, Mackie admitted that the prior forms 

would normally be something included in the transferred medical files. Thus, the earlier 

May 5 suicide risk indicator checklists would have been “something that [she] could have 

seen.” Id. 187 (emphasis added). Further, answering hypothetically, Mackie affirmed 

that if she had before her Mr. Diorio’s “history . . .[of] anxiety, depression, [and] zero 

meds,” she would have viewed it as “clinically significant.” R.R. 195. Yet, these 

responses do not point to affirmative knowledge about a strong likelihood of suicide. 

Mackie’s answers to the hypotheticals posed do not negate her repeated assertions 

that she “d[id] not recall” seeing the earlier intake paperwork prior to conducting the preRHU screening. R.R. 185, 191. Further, at most, these deposition responses might show

a “negligent failure to recognize the . . . risk of suicide[,]” which is not enough to prevail 

on this element of the claim. Colburn II, 946 F.2d at 1025.

Our recent cases have also evinced stronger factual support than present here when

concluding that officials were aware of a decedent’s particular vulnerability to suicide. 

As noted before, in Palakovic, we discussed the custodial officials’ awareness of the 

Yet, even having reviewed Mr. Diorio’s medical chart does not make it reasonable for us 

to infer that the facility knew or should have known of the impending suicide. We have 

already concluded that Mr. Diorio did not have a particular vulnerability to suicide, so 

there was no strong likelihood that one would occur or that the facility could have 

anticipated. Further, she also stated that she “[did not] recall seeing” Mr. Diorio’s initial 

reception mental health questionnaire. R.R. 131. We decline to decide this possibility as 

a matter of law and, in any event, it would not be enough to prevail on a deliberate 

indifference claim. 
13

decedent’s past suicide attempts, his low stability rating, his multiple mental illness 

diagnoses known to heighten the risk of self-harm, his placement on a “mental health 

roster[,]” and an ongoing federal Justice Department investigation for failure to provide 

adequate care to detainees with mental health needs. Palakovic, 854 F.3d at 216–7, 229–

30. Here, although Mr. Diorio had a history of depression and anxiety, he did not have a 

similar array of mental health issues. It is also undisputed that he repeatedly denied to 

staff past acts of self-harm and experiencing suicidal ideations or hallucinations. This 

situation does not compare to the decedent in Palakovic who informed staff of his past 

attempts and future plans of suicide. Id. at 216. As such, it is not “quite reasonable to 

infer that prison officials had (or should have had) knowledge of” Mr. Diorio’s

impending suicide. Palakovic, 854 F.3d at 226. 

Lastly, even assuming for the sake of argument that a reasonable juror could 

conclude that staff knew or should have known of the risk of harm, Appellant is unable to 

show that the officials acted with deliberate indifference to this risk. 

3. Deliberate Indifference

Once an appellant demonstrates that there was a particular vulnerability to suicide,

which custodial officials knew or should have known about, the appellant must then show 

that the custodial officials acted with deliberate indifference in failing to prevent the harm 

that occurred. Colburn II, 946 F.2d at 1023. Deliberate indifference is a high bar. 

Acting with deliberate indifference to a risk of suicide “is to recklessly disregard a 

substantial risk of serious harm.” Palakovic, 854 F.3d at 227 (citation and internal 

quotation marks omitted). Although in this context our Court has declined to further 
14

define the terms “deliberate indifference” and “reckless indifference,” we have stated that 

the necessary behavior is more than a mere “negligent failure to recognize the high risk 

of suicide.” Colburn II, 946 F.2d at 1025; see also Palakovic, 854 F.3d at 224 n.15 

(declining to precisely define the terms) and Woloszyn, 396 F.3d at 320–21 (same).

Here, it does not appear that the officials acted with reckless or deliberate 

indifference to Mr. Diorio’s risk. For instance, Mr. Diorio was in custody for a total of 

11 days; five days at the Camp Hill facility where the suicide occurred. This is not a 

substantial amount of time for staff to become aware of the impending suicide, given the 

repeated responses to intake surveys about no past attempts at self-harm and no current 

suicidal ideationss or other hallucinations. All the more, Mr. Diorio’s 11 days in custody, 

at two separate facilities, is significantly less than the duration of custody prior to the 

suicide in other cases where there was a finding of deliberate indifference. See e.g., 

Palakovic, 854 F.3d at 216 (discussing events over decedent’s thirteen-month stay in a 

state facility). There is also no allegation that the facility failed to have any procedures in 

place or conducted no screening whatsoever. Palakovic, 854 F.3d at 217 (discussing an 

allegation that the facility “lack[ed] . . . a systematic program for screening and 

evaluating prisoners” and that “no comprehensive suicide risk assessment was 

performed.”) In fact, at the time of his death, there was a psychological evaluation 

pending for Mr. Diorio. 
15

We conclude that the record does not support that officials showed a reckless or 

deliberate indifference to the risk of suicide. We will affirm the District Court’s grant of 

summary judgment on the deliberate indifference claim.

6

B. Monell and Supervisory Liability

1. Monell Municipal Liability 

Appellant’s next claim rests upon the alleged failure to train and supervise 

subordinates. Under Monell v. Department of Social Security of the City of New York, a

person may bring a § 1983 claim against local government officials as “‘persons’ within 

the meaning of 42 U.S.C. § 1983.” 436 U.S. 658, 662 (1978). This local government 

liability can arise where there was a failure to train or institute appropriate policies and 

procedures, and that failure amounted to a “deliberate indifference to the rights of persons 

with whom the [custodial official] c[a]me into contact.” City of Canton v. Harris, 489 

U.S. 378, 388 (1989). 

Monell liability applies only to local governments. Monell, 436 U.S. at 690 n.54 

(“Our holding today is, of course, limited to local government units which are not 

considered part of the State for Eleventh Amendment purposes.”) Here, the individual 

defendants are employees of the State. Consequently, liability against the defendants

cannot be sustained under Monell, and summary judgment was properly granted. 

6 Our Court has, by no means, established the egregious facts in Palakovic as the floor for 

successful deliberate indifference claims. Yet, other cases from our Court have similarly 

denied relief on lesser facts. See e.g., Colburn II, 946 F.2d at 1025–27 and Woloszyn, 

396 F.3d at 322–24. Regardless, district courts must rigorously analyze the facts alleged 

or the record before it in any given case prior to finding that a plaintiff cannot move 

forward on a deliberate indifference claim.
16

2. Section 1983 Supervisory Liability 

Likewise, the District Court properly concluded that the record also did not 

support supervisory liability for the named defendants. 

Monell does not embrace respondeat superior as a cognizable claim under its

doctrine. Monell, 436 U.S. at 691. But, our Court has recognized in limited 

circumstances that supervisors may be held liable for the unlawful conduct of 

subordinates. Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210, 227 (3d Cir. 

2015). For supervisory liability to attach in civil rights cases, defendants must have had

“personal involvement in the alleged wrongs.” Id. at 222 (citing Rode v. Dellarciprete, 

845 F.3d 1195, 1207 (3d Cir. 1998)); see also Rizzo v. Goode, 423 U.S. 362, 377 (1976) 

(requiring defendants to have played an “affirmative part” in the unlawful conduct). 

Personal involvement entails “the defendant’s participation in or actual knowledge of and 

acquiescence in the wrongful conduct.” Chavarriaga, 806 F.3d at 222. (citations

omitted). To the extent that a supervisor may be held liable for a subordinate, the policy 

or practice must, in part, have created an unreasonable risk of injury to which the 

supervisor was indifferent. Id. 

Chavarriaga succinctly sets forth these requirements. For supervisory liability 

under § 1983, an appellant must:

(1) identify the specific supervisory practice or procedure that the 

supervisor failed to employ, and show that (2) the existing custom and 

practice without the identified, absent custom or procedure created an 

unreasonable risk of the ultimate injury, (3) the supervisor was aware that 

this unreasonable risk existed, (4) the supervisor was indifferent to the risk; 

and (5) the underling’s violation resulted from the supervisor’s failure to 

employ that supervisory practice or procedure.
17

Id. (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)). 

Here, Appellant asserts that Defendants Herb, Malishchak, and Harry were 

“directly responsible for policy and procedure [at] SCI Camp Hill.” Appellant’s Br. at 

16. Yet, even assuming, without deciding, that these defendants were supervisors for 

purposes of this claim, the record does not support that: (1) an existing policy or practice 

that they failed to employ created an unreasonable risk of injury; (2) the supervisors were 

aware that the unreasonable risk existed, (3) the supervisors were indifferent to the risk;

and (4) the subordinate employee’s violation resulted from the supervisor’s failings. 

Chavarriaga, 806 F.3d at 227. The facility had policies that required early and continued 

assessment of an individual’s mental health. The policies included reviewing prior 

suicide risk screenings and conducting new ones. They also included immediately

referring to psychologists individuals who presented certain risk factors, and 

contingencies for times when practitioners were unavailable. 

Appellant alleges a practice where licensed practical nurses were permitted to 

make decisions, which purportedly should have been the domain of the facility’s 

registered nurses. Even assuming, without deciding, this were the case, the record and 

argument on appeal are devoid of additional facts that could support § 1983 liability for 

supervisors under a policy or practice theory. Namely, the record does not support a 

conclusion that supervisors were aware of and indifferent to an unreasonable risk of 

injury, and that a subordinate’s allegedly unlawful conduct resulted from the supervisor’s 

failings.
18

We will affirm the grant of summary judgment to Defendants on both the Monell

and supervisor liability claims. 

C. Conspiracy

On appeal, Appellant’s brief does not address the conspiracy claim, for which the 

District Court also granted summary judgment in favor of Defendants. Therefore, 

because Appellants forfeited this issue, we will not address it. Barna v. Bd. of Sch. Dirs., 

877 F.3d 136, 147 (3d Cir. 2017) (“‘[F]orfeiture is the failure to make the timely 

assertion of a right,’ an example of which is an inadvertent failure to raise an argument.”

(alteration in original) (quoting United States v. Olano, 507 U.S. 725, 733 (2017))).

IV

For the foregoing reasons, we will affirm in part and vacate in part the District 

Court’s grant of summary judgment on all claims.