IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DeSHANTA HINTON : 4:14-cv-0854

AS EXECUTRIX FOR THE ESTATE :

OF GREGORY HINTON, :

 :

 :

Plaintiff, : (Judge Brann)

v. :

 :

UNITED STATES OF AMERICA, :

RONNIE R. HOLT and :

JANE & JOHN DOE, :

 :

Defendants. :

M E M O R A N D U M

February 20, 2015

I. BACKGROUND:

 Plaintiff, DeShanta Hinton, the executrix of Gregory Hinton’s Estate, filed a

wrongful death/survival action under Federal Tort Claims Act (“FTCA”) and a Bivens

claim in the United States District Court for the Eastern District of Pennsylvania

against the United States of America, Warden Ronnie R. Holt and John and Jane Doe

on December 20, 2013. (ECF No. 1). The action was transferred to this Court at the

request of the United States of America on May 5, 2014. (ECF No. 8). The Plaintiff

subsequently filed an amended complaint on August 21, 2014. (ECF No. 18). The

amended complaint states three causes of action: first, a FTCA claim against the

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United States; second, lack of proper medical care under the Eighth Amendment

against all Defendants; and finally, a state law negligence claim against Defendants

Holt and Doe. (ECF No. 18. 7-10). 

On October 6, 2014, Defendants filed a Motion to Dismiss and in the

alternative, for Summary Judgment. (ECF No. 20). This motion is based on the

following arguments: first, Plaintiff failed to submit an administrative tort claim;

second, Plaintiff failed to file a certificate of merit for medical negligence claims; and

third Plaintiff failed to allege or establish any legitimate constitutional claims.

For the reasons which follow, the FTCA and the Eighth Amendment claims will

be dismissed. Additionally, in the event that the Plaintiff fails to successfully amend

her complaint with federal claims, the Court will decline to exercise its supplemental

jurisdiction over the state law negligence claims. 

II. DISCUSSION:

A. Motion to Dismiss Standard- Fed. R. Civ. P. 12(b)(6)

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), a court must view all allegations stated in the complaint as true and construe

all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding,

467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984); Kost v. Kozakiewicz, 1 F.3d

176, 183 (3d Cir. 1993). However, “the tenet that a court must accept as true all of the

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[factual] allegations contained in the complaint is inapplicable to legal

conclusions.”Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009) (internal citations omitted). In ruling on such a motion, the court primarily

considers the allegations of the pleading, but is not required to consider legal

conclusions alleged in the complaint. Kost, 1 F.3d at 183. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678. At the motion to dismiss stage, the court considers

whether plaintiff is entitled to offer evidence to support the allegations in the

complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the allegations

in the complaint, plaintiff has not pled enough facts to state a claim to relief that is

plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,

167 L. Ed. 2d 929 (2007). “Determining whether a complaint states a plausible claim

for relief will . . . be a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

 “In considering a Rule 12(b)(6) motion, we must be mindful that federal courts

require notice pleading, as opposed to the heightened standard of fact pleading.” 

Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, *4, 2008 WL 1969311 (W.D.

Pa. May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "'requires only

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a short and plain statement of the claim showing that the pleader is entitled to relief,'

in order to 'give the defendant fair notice of what the...claim is and the grounds on

which it rests,'" Twombly, 127 S.Ct. at 1964 (citing Conley v. Gibson, 355 U.S. 41, 47,

78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). However, even under this lower notice pleading

standard, a plaintiff must do more than recite the elements of a cause of action, and

then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 WL

1969311 at *3. Instead, a plaintiff must make a factual showing of his entitlement to

relief by alleging sufficient facts that, when taken as true, suggest the required

elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged -- but it has not “shown”-- “that the pleader is

entitled to relief.” Iqbal, 556 U.S. at 679, citing Fed. R. Civ. P. 8(a). The failure-tostate-a-claim standard of Rule 12(b)(6) “streamlines litigation by dispensing with

needless discovery and fact finding.” Neitzke v. Williams, 490 U.S. 319, 326-27, 109

S. Ct. 1827, 104 L. Ed. 2d 338 (1989). A court may dismiss a claim under Rule

12(b)(6) where there is a “dispositive issue of law.” Id. at 326. If it is beyond a

doubt that the non-moving party can prove no set of facts in support of its allegations,

then a claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

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B. Allegations in the Complaint

Accepting as true all of the allegations in the complaint as the Court is obliged

to do, the facts are as follows. Gregory Hinton (hereinafter “decedent”) was arrested

and convicted of armed robbery in the United States District Court for the Eastern

District of Virginia. ECF No. 18 at 2. Decedent was sentenced to life imprisonment

on January 5, 2001. Id. Plaintiff alleges that according to prison records, decedent

attempted suicide twice on February 20, 2001 and again on March 3, 2001.1 Id. As

a result of these suicide attempts, Plaintiff avers that decedent was transferred to a

medical center for federal prisoners. Id. at 3. In May 2001,2

 the decedent was

transferred to Federal Correctional Institution, Allenwood, Pennsylvania (“FCI

Allenwood”). Id. 

Plaintiff avers that the decedent’s medical history from 2001 and 2004 shows

a persistent depression diagnosis. Id. at 4. Plaintiff alleges that decedent received

1 This date appears to be written in error as 2011 in the amended complaint. The

attached Exhibit C referencing this incident is dated as March 3, 2001. This

exhibit was attached to Plaintiff’s brief in opposition to the motion to dismiss

and/or in the alternative for summary judgment. 

2 This date appears to be written in error because an attached Exhibit D referencing

decedent’s transfer is dated as May 11, 2001. This exhibit was attached to

Plaintiff’s brief in opposition to the motion to dismiss and/or in the alternative for

summary judgment.

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prescription medication for his depression and, while on this medication, decedent

made no attempts at suicide. Id. Plaintiff alleges that FCI Allenwood abruptly

discontinued decedent’s mental health care and did so on the recommendation of a

doctor whom, Plaintiff avers on information and belief, is neither a therapist nor a

psychologist but an osteopathic physician. Id.

Plaintiff alleges that Defendant Holt was made aware of decedent’s mental

health on at least three different occasions. Id. at 2-4. Defendant Holt, who was the

associate warden of custody at FCI Allenwood, received two memoranda referencing

the decedent’s mental health. Id at 3. Both memoranda reported on decedent’s

involvement in assaults with other inmates. Id. The memoranda notified Defendant

Holt that the decedent had “arrived from a medical center on a psych/psych evaluation

transfer.” Id. Finally, Plaintiff alleges that a signature that appears to be Defendant

Holt’s is on a central inmate monitoring review. Id. at 4. This report included the

following notation from the associate warden, custody: “Life sentence, numerous

medical trips from ALP, most recent 6-20-07. USE EXTREME CAUTION.” The

Plaintiff alleges that these documents show that Defendant Holt had actual knowledge

of the decedent’s mental health history. Id. at 3.

Plaintiff further alleges that decedent’s work assignment gave him both the

opportunity as well as the tools to aid in his suicide. Id. Plaintiff was assigned to be

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a janitor at FCI Allenwood and this position allowed him to have unrestricted access

to the janitorial supply room. ECF No. 18 at 4. On January 12, 2012, Plaintiff alleges

that the decedent went into the supply room unsupervised and proceeded to commit

suicide with available supplies. Id.

C. Analysis

1. FTCA Claim

Count I alleges that the United States was negligent under the FTCA.

Specifically, Plaintiff asserts that employees at FCI Allenwood: (1) negligently and

recklessly assigned the decedent to a job assignment which gave him access to tools

he used to commit suicide; (2) negligently trained its employees to monitor inmates

with histories of suicide attempts; (3) negligently discontinued decedent’s mental

health treatment; and (4) negligently trained Federal Bureau of Prison (“BOP”) staff

concerning appropriate jobs for inmates with serious mental health issues. Defendants

respond to this assertion by alleging that Plaintiff did not fully exhaust her

administrative remedies before bringing the FTCA action.

In general, the United States enjoys sovereign immunity from suit unless it

otherwise consents to be sued. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456

(3d Cir. 2010). The FTCA constitutes “a limited waiver of the United States'

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sovereign immunity.” Id. The Act provides that the United States shall be liable, to

the same extent as a private individual, “for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his office or employment.” 28

U.S.C. §2674. As a prerequisite to suit under the FTCA, a claim must first be

presented to the appropriate federal agency and be denied, or be deemed to be denied

by the agency. 28 U.S.C. § 2675 (a).

Plaintiff does not allege that she exhausted all available remedies before filing

this complaint. Instead, for the first time in her memorandum in opposition to the

motion to dismiss, Plaintiff introduces a letter addressed to Defendant Holt, a copy of

which was sent to the Director of the North East Regional Office for the Federal

Bureau of Prisons. ECF. No. 30 Exhibit J. This letter informs the warden that legal

action has been taken against him for the death of Gregory Hinton. Id. The letter,

dated April 2012, reads in its entirety as follows:

I am writing this note to put you on formal notice of a legal action

under 42 USC 1983 or a Bivens action in regard to the death of

Gregory Hinton on January 12, 2012. In addition, the notice is being

served upon you to specifically comply with the requirements of 42

PA. C.S. §5522.

As to the fact specific details of the notice requirement of 42 Pa.C.S. 

§5522, Mr. Hinton was living at FCC Allenwood at the time of his

death and facts circumstances of his death are that he died in your

facility.

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Plaintiff contends that this letter should be considered analogous to filing an

administrative complaint to the BOP because it gave the agency an opportunity to

conduct an investigation and make its own findings. ECF No. 30 at 10. 

Be that as it may, Plaintiff’s letter fails to meet the applicable procedural

requirements dictated by law. To satisfy the presentment requirement, the appropriate

federal agency must receive an executed Standard Form 95 or other written

notification of the alleged tortious incident and the alleged injuries, together with a

claim for money damages in a sum certain. 28 C.F.R. § 14.2(a). A letter may satisfy

the requirement of presenting the claim to the agency if it gives the agency appropriate

notice and includes a statement of damages. Tucker v. U. S. Postal Serv., 676 F.2d

954, 959 (3d. Cir. 1982). 

The April 2012 letter fails to state a "sum certain amount for injuries or losses

alleged to have occurred by reason of the incident," despite arguments to the contrary.

White–Squire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir.2010); see also

Hoffenberg v. United States, 504 F. App'x 81, 83 (3d Cir. 2012) (claimant failed to

demand an amount for damages specific to his medical malpractice injuries); see also

Roma v. United States, 344 F.3d 352, 362-63 (3d Cir. 2003)(stating that the

presentment requirement is satisfied when the plaintiff “(1) gives the agency written

notice of his or her claim sufficient to enable the agency to investigate and (2) places

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a value on his or her claim” (quoting Tucker v. United States Postal Serv., 676 F.2d

954, 958-59 (3d Cir. 1982)); Bialowas v. United States, 443 F.2d 1047, 1050 (3d. Cir.

1982)(An administrative claim form that fails to state a sum certain for money

damages does not constitute a proper claim.) 

Finally, Plaintiff also attaches as an exhibit, a letter addressed to the Assistant

United States Attorney for the Eastern District of Pennsylvania which states that

$250,000 is demanded in relation to the lawsuit against Defendant Holt. ( ECF No. 30

Exhibit K). Plaintiff has neither alleged nor indicated that a copy of this letter was sent

to the BOP. Based upon the discussion above, this cannot serve as the equivalent of

notifying the BOP of the damages resulting from the death of the decedent.

This count must therefore be dismissed for non-exhaustion of administrative

remedies.

2. Eighth Amendment Claim

 Count II alleges that decedent was denied proper medical care under the Eighth

Amendment and as a result committed suicide. To assert such a claim, a plaintiff in

a prisoner suicide case must prove specific facts which show that “(1) the decedent

had a particular vulnerability to suicide; (2) the custodial officer or officers knew or

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should have known of that vulnerability and (3) those officers acted with reckless

indifference to the decedent’s vulnerability.” Colburn v. Upper Darby Twp., 946 F.2d

1017, 1024 (3rd Cir. 1991). 

a. Vulnerability to Suicide

To establish a particular vulnerability to suicide, a plaintiff must establish that

there is a “strong likelihood, rather than a mere possibility, that self-inflicted harm will

occur.” Colburn II, 946 F.2d, 1024. The facts alleged here are not sufficient to

establish decedent's vulnerability to suicide, and do not reach the "strong likelihood”

threshold that is generally required. See, Zheng v. Palakovich, No. CIV. 4:09-1751,

2010 WL 3718022 ( M.D. Pa. Sept. 20, 2010)( Rambo, J.) (holding that sufficient

facts had been pled where the decedent was diagnosed with depression and suicidal

tendencies, had requested psychiatric help on multiple occasions, and stated in these

requests that he was afraid that he would hurt himself); Finney v. Palakovich, No.

4:09-1751, 2010 WL 2902731 (M.D. Pa. July 23, 2010)( Rambo, J.) (holding that

sufficient facts had been pled where the decedent was in and out of psychiatric care

nearly every month from June 2007 to December 2007 and was put on fifteen minute

observation when released for psychiatric care, presumably because he posed a danger

to himself); Kapa v. Palakovich, No. 1:09-CV-0371, 2011 WL 5520321 (M.D. Pa.

Nov. 14, 2011)(Rambo, J.) (finding that a reasonable trier of fact could conclude that

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the decedent had a particular vulnerability to suicide because he had been in and out

of care at least fifteen times since the beginning of his incarceration, threatened or

attempted self harm and told staff while in psychiatric care that he wanted to end his

life). See also, e.g., Vargo ex rel. Vargo v. Plum Borough 376 F. App'x 212, 216 (3d

Cir. 2010)(finding that nothing in the record established that the pretrial detainee had

a particular vulnerability to suicide because he did not exhibit any behavior that would

lead anyone to believe that he would commit suicide.)

In the matter at hand, Plaintiff alleges that decedent attempted to kill himself

three times over the period of his eleven-year incarceration. As noted above, the first

two attempts were allegedly made on February 20, 2001 and the third on March 3,

2001, all shortly after decedent was sentenced to life imprisonment. Plaintiff also

alleges that decedent was prescribed antidepressant medication and while on this,

made no further suicide attempts. Decedent, according to Plaintiff, was abruptly taken

off the medication in April 2006, six years before his suicide. 

Plaintiff does not allege any facts indicating that during the nearly six- year

period following the discontinuation of the antidepressant medication, the decedent

demonstrated any suicidal ideation. While this death, like all deaths in prison, was in

its own way a tragedy, this Court must conclude that the decedent presented no

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vulnerability to suicide after April 2006. Consequently, the first prong of the Colburn

test has not been met.

b. Defendant's Knowledge 

To satisfy the second prong of the Colburn test articulated by the Third Circuit,

the plaintiff must plead facts that show that the strong likelihood of suicide was so

obvious that a layperson would easily recognize the necessity for preventative action.

946 F.2d, 1025. “Further the risk of self-inflicted must be sufficiently apparent that

a lay custodian's failure to appreciate it evidences the absence of any concern for the

welfare of his or her charges.” Id.

Plaintiff alleges that as associate warden of custody, Defendant Holt, a

layperson, knew or should have known of decedent's history of suicide because two

memoranda written in 2001 and 2002 were directed to his attention. These

memoranda reported on the decedent's involvement in assaults with other inmates. 

The memoranda also noted that the decedent had transferred to FCI Allenwood on a

psych/psych evaluation transfer from a federal medical center. 

 Plaintiff also relies on an inmate monitoring review, dated October 28, 2007,

to show that the Defendant Holt was aware of the decedent's suicidal history. This

report states that the decedent had numerous medical trips from ALP and advises that

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extreme caution is to be used and is allegedly signed by Defendant Holt. Curiously,

none of these documents placed Defendant Holt on notice that the decedent was

depressed or a suicide risk. Even assuming for the moment that these documents

adequately put Defendant Holt on adequate notice of the decedent's suicide ideations,

Plaintiff has failed to plead facts that would make it sufficiently apparent to the

Defendant, that the decedent held suicidal thoughts years later. See Joines v. Twp. of

Ridley, 229 F. App'x 161, 163 (3d Cir. 2007) (concluding that an incident in 1998,

almost four years prior to the date at issue, was too remote in time to expect a law

enforcement officer to remember one incident that did not lead to an arrest.) Plaintiff

has therefore failed to meet this prong of the test.

c. Deliberate Indifference

 The third prong of the Colburn test recognizes that there must be a link

between the prison official's knowledge and his disregard of the prisoner's particular

risk. 946 F.2d, 1025. Here, the plaintiff is required to prove that the prison official

“know[s] of and disregard[s] an excessive risk to inmate health and safety.”

Woloszynv. Cnty. of Lawrence, 396 F.3d 314, 321 (3d Cir. 2005) (quoting BeersCapitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001)). Deliberate indifference is more than

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mere negligence, and a prison official cannot be held liable for failing to recognize the

necessity for preventative action. Colburn, 946 F.2d, 1025; Kulp v. Veruete, 267 Fed.

App'x 141, 143 (3d Cir. 2008).

Plaintiff alleges that Defendant Holt disregarded decedent's risk of suicide by

assigning him to be a janitor. In this capacity, decedent had unrestricted access to the

supply room and ultimately used these supplies to aid in his suicide. Simply assigning

decedent to janitorial duties is not deliberate indifference, given that Plaintiff has

failed to demonstrate that Defendant Holt understood that decedent might commit

suicide using janitorial supplies. In Brandt v. PrimeCare Med., Inc., the court held

that Plaintiff provided sufficient evidence via an expert report, to establish that two

defendant doctors were deliberately indifferent in their treatment of the inmate by

prematurely removing him from a stripped cell into general population even though

he had mental problems) No. 1:11-CV-1692, 2013 WL 3863936 (M.D. Pa. July 24,

2013)( Caldwell, J.) Unlike the Brandt case, Plaintiff provides no other facts which

point to Defendant Holt’s deliberate indifference aside from decedent’s work

assignment. The Plaintiff also fails to meet this final prong of the Colburn test.

3. Count III

 Plaintiff’s concluding count sets forth a state law negligence claim against

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Defendants Holt and Doe. In the event that the Plaintiff fails to successfully amend

her complaint, the Court will decline to exercise its supplemental jurisdiction

governing this issue.

III. CONCLUSION:

In sum, and for the reasons set forth above, the motion to dismiss is granted.

The Plaintiff is granted leave to file an amended complaint within twenty-one (21)

days of the date of the Order which accompanies this memorandum. 

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

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