NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOAN MULLIN, ADMINISTRATRIX OF THE 

ESTATE OF ROBERT MULLIN, deceased,

and JOAN MULLIN, individually,

 Plaintiffs,

 v.

ADMINISTRATOR KAREN BALICKI, et 

al.,

 Defendants.

 CIVIL ACTION NO. 11-247 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

The Plaintiffs, Joan Mullin, individually and as administratrix 

of the estate of Robert Mullin, her son, (hereinafter “Plaintiffs”) 

bring this action against the following individual defendants in 

their “personal, individual and professional capacities” who 

represent the Department of Corrections of the State of New Jersey, 

South Woods State Prison, and Central Reception & Assignment 

Facility: Administrator Karen Balicki (hereinafter “Balicki”);

Director Robert Patterson (hereinafter “Patterson”); and Director 

Marie Dunlap-Pryce (hereinafter “Dunlap-Pryce”). (See dkt. entry 

no. 102, 2nd Am. Compl. (hereinafter “Compl.”).)

1 Plaintiffs 

 

1 Before the Court is Plaintiffs’ Second Amended Complaint. 

(See dkt. entry no. 129, 3-8-13 Order at 1; dkt. entry no. 143, 5-

14-13 Order at 1 n.1.) References to “Complaint” hereinafter refer 

to this Second Amended Complaint.
2

further bring this action against the following individuals in 

their “personal, individual and professional capacities”: Jane 

Byrd, L.P.N. (hereinafter “Byrd”); Erin Marusky, R.N. (hereinafter 

“Marusky”); Officer Dimler (hereinafter “Dimler”); and Beatrice

Teel, R.N. (hereinafter “Teel”). (See id.) Plaintiffs also name 

as defendants Kintock Group and Mercer County. (See id.)

Mercer County was dismissed from the action by stipulation of 

the parties on March 22, 2011. (See dkt. entry no. 15, Stip. of 

Dismissal as to Mercer County.) Plaintiffs also agreed to the 

dismissal of the claims against Marusky by order of the Court on 

May 2, 2013. (See dkt. entry no. 139, 5-2-13 Order.) 

Before the Court are the separate motions by Byrd to dismiss 

the claims asserted against her and by Balicki, Patterson, DunlapPryce, Dimler, and Teel (hereinafter “DOC Defendants”) to dismiss 

the claims asserted against them for failure to state a claim

pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c). 

(See dkt. entry no. 144, Byrd’s Mot. to Dismiss; dkt. entry no. 
3

145, DOC Defs.’ Mot. to Dismiss.)2 For the reasons that follow, 

the Court will deny the part of the motion to dismiss concerning 

the individual-capacity, constitutional claims against Byrd, and 

the Court will grant the remainder of the separate motions to 

dismiss in their entirety.

I. ALLEGATIONS IN THE COMPLAINT

Plaintiffs’ claims are based on the suicide of Robert Mullin

(hereinafter “the decedent”) while incarcerated in the State of New 

Jersey. Specifically, Plaintiffs allege that the decedent was 

incarcerated for about six to eight years through January 17, 2009, 

 

2 Byrd and Dimler filed answers on October 24, 2012 and April 

9, 2013 respectively. (See dkt. entry no. 108, Byrd Answer; dkt. 

entry no. 134, Dimler Answer.) Both preserved the grounds for 

dismissal at issue before the Court by raising failure to state a 

claim as an affirmative defense in their answers. With respect to 

these two defendants, the motions pending are Rule 12(c) motions 

for judgment on the pleadings for failure to state a claim since 

these defendants have filed responsive pleadings. See Turbe v. 

Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991) (stating that 

Rule 12(b)(6) motions must be filed before a responsive 

pleading, but that “[a] Rule 12(c) motion for judgment on the 

pleadings may be filed after the pleadings are closed. . . . 

Rule 12(h)(2) provides that a defense of failure to state a 

claim upon which relief can be granted may also be made by a 

motion for judgment on the pleadings.”); Fed.R.Civ.P. 12(h)(2). 

As to the remaining defendants who have not filed responsive 

pleadings, the pending requests for relief are pursuant to Rule 

12(b)(6) for failure to state a claim upon which relief may be 

granted. Counsel for Dimler described the nature of the request

for all the DOC Defendants as being pursuant to Rule 12(b)(6). 

This was in error, as the filing of Dimler’s answer renders that 

request to be pursuant to Rule 12(c). See Turbe, 938 F.2d at 428. 

Byrd’s motion was properly labeled as a Rule 12(c) motion. Because 

the standard for a Rule 12(b)(6) motion applies to both the Rule 

12(c) and the Rule 12(b)(6) motions pending, see id., the Court 

will hereinafter address them by reference to Rule 12(b)(6).
4

the date of his death. (Compl. at ¶ 11.) In May of 2008, he was 

transferred from prison to a halfway house operated and managed by 

The Kintock Group (hereinafter “Kintock”). (Id. at ¶ 12.) The 

decedent was to be released from Kintock around April to June of 

2009 following his completion of the therapy, work studies, and 

rehabilitative services. (Id. at ¶ 13.) However, while residing 

at Kintock, the decedent had been fired from his job. (Id. at ¶ 

23.) 

On January 15, 2009, while at Kintock, the decedent exhibited 

a deterioration in his mental status and became aggressive. (Id.

at ¶ 14.) Illegal substances, including cocaine and opiates, were 

found in his possession. (Id. at ¶ 15.) Also, in the presence of 

a Kintock caseworker, the decedent swallowed a handful of pills 

that he identified as medication for depression. (Id. at ¶ 16.) 

The decedent was subsequently transferred to South Woods State 

Prison, where he was medically evaluated, and he tested positive 

for opiates and cocaine. (Id. at ¶¶ 17-18.) On January 16, 2009, 

he was transferred to the Central Reception & Assignment Facility 

(hereinafter “CRAF”), “under the custodial care, supervision, 

management and control” of Balicki, Patterson, and Dunlap-Pryce 

(hereinafter “Supervisory Defendants”). (Id. at ¶ 18.) Plaintiffs 

further allege that between January 15 and 17, 2009, the decedent 

“also was treated by and was under the custodial care, supervision, 
5

management, and control of the Trenton Psychiatric Hospital,” and 

its employees and staff. (Id. at ¶ 19.)

Plaintiffs allege that Kintock’s file on the decedent

indicated that he had an extensive drug history and a high risk of 

abusing drugs and alcohol. (Id. at ¶¶ 21-22.) Also, Plaintiffs 

allege that the decedent had a history of mental illness and 

suicide attempts. (Id. at ¶¶ 24, 40.) At various points from 2005 

until the time of his death, the decedent had been hospitalized for 

mental illness, had used medication for his psychiatric conditions, 

and had considered or attempted suicide. (Id. at ¶¶ 40-41, 43-49.) 

The Complaint alleges that this was reflected in various medical 

records and intake forms; however, with the exception of the 

records from Kintock, the Complaint does not allege that the 

defendants had actual knowledge of these records or the information 

contained therein in January of 2009. (See, e.g., id. at ¶¶ 40-41, 

43-48.) 

On January 14, 2009, three days before his death, the 

decedent’s medical records reflect that he “was seen at South Woods 

State Prison, following a transfer from Kintock to Detention/ECU, 

and the diagnosis of ‘mood disorder,’ a family history of suicide, 

and a history of being a suicide risk.” (Id. at ¶ 49.) The 

Complaint does not indicate whether the particular defendants in 
6

this matter were aware of the January 14, 2009 records or their 

content. 

According to the Complaint, Byrd and Teel, as agents of the 

Supervisory Defendants, examined and evaluated the decedent on 

January 16, 2009. (Id. at ¶ 39.) Byrd performed a nursing intake 

on this date, and the decedent allegedly responded in the 

affirmative to the following questions: (1) “have you ever been 

hospitalized or treated for psychiatric illness”; and (2) “have you 

ever considered or attempted suicide.” (Id. at ¶ 50.) The 

decedent’s medical records from this same date included a 

“diagnosis of ‘mood disorder,’ a family history of suicide, and a 

history of being a suicide risk.” (Id.) On January 16, 2009 at 

CRAF or South Woods State Prison, Byrd cleared the decedent 

medically for placement in the general prison population. (Id. at 

¶¶ 51, 56.)

At approximately 4:23 AM on January 17, 2009, Dimler, who was 

allegedly the corrections officer responsible for caring for and 

treating the decedent, found the decedent unresponsive after the 

decedent had hung himself with what limited records indicate was a 

self-made noose from a bed sheet. (Id. at ¶¶ 25-26.) After this 

discovery, Teel was summoned, an unnamed officer or medical 

provider performed CPR, and the decedent was pronounced dead at 

4:49 AM. (Id. at ¶¶ 30-31, 57.)
7

The Complaint asserts that Kintock failed to advise or notify 

Byrd, Teel, and Dimler about the decedent’s mental-health and 

substance-abuse issues. (Id. at ¶ 56.) The Complaint further 

alleges that Dimler and Teel “knew or should have known” of the 

decedent’s history of attempted suicide, mental illness, and 

substance abuse from the transfer records from Kintock. (Id. at ¶¶ 

27, 33.) The Complaint alleges that they failed to “review, 

evaluate, or follow” transfer records from Kintock in determining 

what level of care to provide to the decedent, including treatment 

for his intoxication and one-on-one supervision. (Id. at ¶ 36.) 

The Complaint asserts that Byrd and Teel failed to evaluate the 

decedent for intoxication, as was required by policy and procedure. 

(Id. at ¶ 53.) According to the Complaint, had these defendants 

properly evaluated the decedent and reviewed his medical records, 

the decedent “would have been transferred to the infirmary and/or 

been placed under constant supervision without the ability to harm 

himself.” (Id. at ¶ 54.) Moreover, Dimler and Teel purportedly 

“knew that policy and procedure required direct and constant 

supervision and monitoring, and yet failed to abide by said policy 

and procedure, evidencing a gross indifference” to the decedent’s 

welfare. (Id. at ¶¶ 28, 34.) Specifically, both permitted the 

decedent to be in a cell with materials including bed sheets that 

could be used to inflict self-harm. (Id. at ¶¶ 29, 36.) 
8

According to the Complaint, the decedent’s history of suicide 

attempts, mental-health issues, and recent drug abuse were known or 

should have been known to Dimler, Teel, Byrd, Kintock, and the 

Supervisory Defendants. (Id. at ¶¶ 60-64.) However, the 

individual defendants, including Teel and Dimler, failed to provide 

adequate supervision to the decedent. (Id. at ¶¶ 60-61.) The 

Complaint alleges that the failures of these individual defendants 

“were the direct and proximate cause of the self-harm and suicide 

by” the decedent. (Id. at ¶ 55.) 

The Complaint also asserts that the Supervisory Defendants 

failed to follow their own policy and procedure requiring them to 

familiarize themselves with an inmate’s transfer records and failed 

to ensure that the decedent was properly treated and supervised for 

drug addiction and suicide risk. (Id. at ¶¶ 64-65.) The Complaint 

also claims that these Supervisory Defendants failed to enact and 

enforce procedures and policies that required their staff to review 

transfer records or that provided for the treatment of 

intoxication, and these failures foreseeably led to the decedent’s 

suicide. (Id. at ¶ 66.)

Plaintiffs initially brought this action on January 14, 2011; 

however, the complaint at issue before the Court is the Second

Amended Complaint, which was filed September 21, 2012. The 

Complaint asserts six counts pursuant to 42 U.S.C. § 1983 
9

(hereinafter “section 1983”) and the New Jersey Civil Rights Act 

(hereinafter “NJCRA”), N.J.S.A. 10:6-1 et seq.: 

(1) deprivation of the decedent’s constitutional rights 

under the Fourteenth, First, Fourth, Fifth, and Sixth 

Amendments of the United States Constitution (id. at ¶¶ 73-

94);

(2) deprivation of the decedent’s constitutional rights 

under the New Jersey Constitution, Article 12, the right to 

be free from cruel and unusual punishment, and Article 1, 

the right to due process (id. at ¶¶ 95-104); 

(3) negligent hiring, training and supervision of employees 

and agents (id. at ¶¶ 105-18);

(4) intentional and negligent infliction of emotional 

distress (id. at ¶¶ 119-34);

(5) abuse of process by Supervisory Defendants and Kintock 

(id. at ¶¶ 135-44); and

(6) medical malpractice by, inter alia, Byrd and Teel (id.

at ¶¶ 145-62).

Plaintiff seeks compensatory and punitive damages, funeral 

expenses, interest, attorneys’ fees, and litigation costs.

II. GOVERNING STANDARD

When considering a motion to dismiss for failure to state a 

claim, the court must accept the facts pleaded in the complaint as 

true and draw all inferences in favor of the plaintiff. Phillips 

v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). “[O]nly a 

complaint that states a plausible claim for relief survives a 

motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 

“A claim has facial plausibility when the plaintiff pleads factual 
10

content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Id. at 678. 

This plausibility standard is not a “probability requirement.” The 

standard merely requires “more than a sheer possibility that the 

defendant has acted unlawfully.” Id.; see also Phillips, 515 F.3d 

at 234.

“[T]he tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal 

conclusions. Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.” 

Iqbal, 556 U.S. at 678. Legal conclusions “must be supported by 

factual allegations.” Id. at 679. 

A civil-rights complaint must “‘contain a modicum of factual 

specificity, identifying the particular conduct of defendants that 

is alleged to have harmed the plaintiffs.’” Freedman v. City of 

Allentown, 853 F.2d 1111, 1114 (3d Cir. 1988) (quoting Ross v. 

Meagan, 638 F.2d 646, 650 (3d Cir. 1981)).3 The court must look 

past any conclusory allegations regarding the willfulness of the 

defendants’ conduct or the defendants’ reckless disregard of the 

 

3 Plaintiffs assert civil-rights claims under section 1983 and 

under the NJCRA, the state counterpart of section 1983 for 

violation of rights secured under New Jersey’s Constitution. See

Green v. Corzine, No. 09-1600, 2011 WL 735719, at *7 (D.N.J. Feb. 

22, 2011). The “NJCRA is generally interpreted to be coextensive 

with its federal counterpart.” Id. Unless otherwise stated, the 

analysis and determinations with respect to the section 1983 claims 

apply equally to claims under the NJCRA.
11

rights of the victim; the court will focus on “the factual scenario 

itself to examine whether the conduct alleged, viewed most 

favorably to plaintiffs, is reasonably susceptible to falling 

within the conclusions alleged.” Id. at 1115. 

In situations in which more specific allegations may 

demonstrate that the conduct at issue falls within section 1983’s 

ambit, district courts are required to permit amendment to the 

complaint. Id. at 1114. “Furthermore, when the lack of factual 

specificity is fairly attributable to defendants’ control of 

required information, we have permitted the action to proceed to a 

reasonable amount of discovery to help [plaintiff] make the 

necessary showing to prove her case.” Id. (internal quotation 

marks and citation omitted). 

III. ANALYSIS 

A. Official-Capacity Claims4

Balicki, Patterson, Dunlap-Pryce, Dimler, Teel, and Byrd 

(hereinafter “Movants”) seek dismissal of the official-capacity 

claims (both state and federal) asserted against them based on 

state-sovereign immunity under the Eleventh Amendment. The 

Eleventh Amendment states, “The judicial power of the United States 

 

4 Plaintiffs have named several of the individual defendants 

in their “personal, individual, and professional capacities.” 

Based on the nomenclature in our federal jurisprudence, the Court 

construes this to mean that the individuals are sued in their 

individual and official capacities.
12

shall not be construed to extend to any suit in law or equity, 

commenced or prosecuted against one of the United States by 

citizens of another state, or by citizens or subjects of any 

foreign state.” U.S. Const. amend. XI. With a few exceptions, the 

Eleventh Amendment prevents a state entity from being a defendant 

in a lawsuit. This state-sovereign immunity extends to state 

officials who are sued for money damages in their official 

capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 169-70

(1985). However, Congress can abrogate state-sovereign immunity 

through an unequivocal expression, or a state can waive its own 

immunity to suit. Coll. Sav. Bank v. Fla. Prepaid Postsecondary 

Educ. Expense Bd., 527 U.S. 666, 670 (1999).

The parties do not dispute that Movants are state officials, 

and thus, when sued in their official capacities, the Eleventh 

Amendment issues arise. In this case, the Complaint seeks monetary 

damages as opposed to prospective relief against these state 

officials sued in their official capacities. Congress did not 

abrogate state-sovereign immunity in section 1983. Graham, 473 

U.S. at 169 n.17. And the State of New Jersey has not waived its 

sovereign immunity in federal courts. Thus, none of the exceptions 

to the Eleventh Amendment’s bar on monetary relief against state 

officials in their official capacity are present in this case. 
13

In addition to these immunity issues, there are other

deficiencies with respect to Plaintiffs’ official-capacity claims 

pursuant to section 1983, which provides:

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory 

or the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other 

person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to 

the party injured in an action at law, suit in equity, 

or other proper proceeding for redress . . . .

42 U.S.C. § 1983. But states, and state officials in their 

official capacities, are not “persons” for section 1983 purposes. 

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-65 (1989).

Because Movants in their official capacities are immune from 

suit and because they are not “persons” under section 1983, the 

Court will dismiss the portions of the Complaint seeking relief 

against these state officials in their official capacities. In 

fact, having realized their mistake of law, Plaintiffs have stated 

that they are willing to stipulate that there is no officialcapacity liability in this matter. (See dkt. entry no. 147, Pls.’ 

Opp’n to DOC Defs.’ Mot. to Dismiss at 11-13; dkt. entry no. 148, 

Pls.’ Opp’n to Byrd’s Mot. to Dismiss at 9.) Any references in the 

Complaint to official-capacity liability will no longer be viable. 
14

B. Individual-Capacity Claims

The Eleventh Amendment does not bar the individual-capacity 

claims, and state officials in their individual capacities are 

“persons” for the purposes of a section 1983 suit. Hafer v. Melo, 

502 U.S. 21, 30-31 (1991). 

1. State Common-Law Claims

With respect to the common-law claims against the Movants in 

their individual capacities, New Jersey state law pursuant to New 

Jersey’s Tort Claims Act (hereinafter the “TCA”) limits the 

circumstances in which state officials and state entities can be 

held liable for negligence under state law. N.J.S.A. 59:1-1 to 12-

3. Because the TCA applies only to state-law claims and “provides 

no immunity” from constitutional claims brought under section 1983, 

Tice v. Cramer, 627 A.2d 1090, 1105 (N.J. 1993), the Court will 

analyze the remaining individual-capacity state common-law claims 

separately from the constitutional claims. 

Movants have asserted that the alleged conduct at issue is 

shielded from liability under state law by the TCA. Specifically, 

Movants argue that, pursuant to N.J.S.A. 59:6-5 and 6-6, public 

entities and employees are immune for “failing to diagnose a mental 

condition, and for any decision to confine a person for mental 

illness.” (DOC Defs.’ Mot. to Dismiss at 14; see also Byrd’s Mot. 

to Dismiss at 8, 11.) Those sections provide:
15

a. Neither a public entity nor a public employee is 

liable for injury resulting from diagnosing or failing 

to diagnose that a person is afflicted with mental 

illness or is a drug dependent person or from failing to 

prescribe for mental illness or drug dependence;

provided, however, that nothing in this subsection 

exonerates a public entity or a public employee who has 

undertaken to prescribe for mental illness or drug 

dependence from liability for injury proximately caused 

by his negligence or by his wrongful act in so 

prescribing.

b. Nothing in subsection a. exonerates a public entity 

or a public employee from liability for injury 

proximately caused by a negligent or wrongful act 

or omission in administering any treatment prescribed 

for mental illness or drug dependence.

N.J.S.A. 59-6-5.

Neither a public entity nor a public employee is liable 

for any injury resulting from determining in accordance 

with any applicable enactment: (1) whether to confine a 

person for mental illness or drug dependence; (2) the 

terms and conditions of confinement for mental illness 

or drug dependence; (3) whether to parole, grant a leave 

of absence to, or release a person from confinement for 

mental illness or drug dependence.

N.J.S.A. 59:6-6.

Courts interpret these provisions broadly, and close calls in 

application are resolved in favor of immunity, not liability. See, 

e.g., Charpentier v. Godsil, 937 F.2d 859, 865 (3d Cir. 1991); 

Greenway Dev. Co. v. Bor. of Paramus, 750 A.2d 764, 767 (N.J. 

2000); Ludlow v. City of Clifton, 702 A.2d 506, 508 (N.J. App. Div. 

1997); Perona v. Twp. of Mullica, 636 A.2d 535, 539 (N.J. App. Div. 

1994). These provisions reflect and advance New Jersey’s public 
16

policy in favor of providing immunity to public employees for their 

discretionary decision making. Perona, 636 A.2d at 539, 541.

The New Jersey Appellate Division stated that the immunity 

conferred by N.J.S.A. 59:6-6 is not limited only to confinement 

within a “mental institution” and that the linchpin for such 

immunity “is a discretionary decision whether to confine a person 

for the care and treatment of mental illness rather than the 

particular type of facility in which a person may be confined.” 

Ludlow, 702 A.2d at 508. Immunity is also not limited to 

physicians and can apply to any public employee, including police 

officers. Perona, 636 A.2d at 539. Additionally, immunity is not 

limited to final decisions on whether to confine a person for 

mental illness; it applies to all determinations in the commitment 

process. Ludlow, 702 A.2d at 508.

The broad construction of these immunities has led courts to 

apply them in a wide range of circumstances. For example, the 

Appellate Division in Perona v. Township of Mullica found that 

police officers were immune from suit in circumstances similar to 

those presented by this case. 636 A.2d 535. The police officers 

had responded to a domestic violence complaint and learned that Mr. 

Perona was attempting to prevent Mrs. Perona from taking a walk by 

herself because she had written him what he interpreted to be a 

suicide note. Id. at 537. Mrs. Perona denied having suicidal 
17

intent, indicating that the note merely reflected her wishes if she 

were to fail to return home -- if she decided to hitchhike for 

example. Id. The officers were satisfied with her explanation and 

left the Peronas’ home. Shortly thereafter, Mrs. Perona attempted 

suicide by walking in front of traffic on a nearby highway. Id. 

The Appellate Division concluded that the officers’ decision not to 

take Mrs. Perona into custody or confinement was immune from 

liability under N.J.S.A. 59:6-6. Id. at 541.

In Predoti v. Bergen Pines County Hospital, the Appellate 

Division determined that a hospital was immune under N.J.S.A. 59:6-

6. 463 A.2d 400 (N.J. App. Div. 1983). The plaintiff, who was 

diagnosed as suffering from “schizophrenia chronic undifferentiated 

suicidal,” was assigned to the closed ward of the hospital where he 

was placed in restraints. Four days later, he was transferred to a 

less-restricted open ward after responding well to treatment. Id.

at 401. Two days later, while on an escorted walk for open-ward 

patients, the plaintiff detached from the group and was injured by 

an automobile when he attempted to cross a highway. Id. at 402. 

The court concluded that the hospital was not liable for the 

plaintiff’s injuries under N.J.S.A. 59:6-6 and stated, “Decisions 

affecting confinement of the mentally ill are usually highly 

predictive and though reasonable can lead to a demonstrably bad 

result. . . . By immunizing these difficult decisions the 
18

Legislature allows them to be made in an appropriate atmosphere 

free from the fear of suit.” Id. at 402-03.

In McNesby v. State of New Jersey, Department of Human 

Services, the Appellate Division again ruled in favor of immunity. 

555 A.2d 1186 (N.J. App. Div. 1989). The plaintiff’s decedent, who 

had a history of psychiatric illness and suicidal tendencies, was 

involuntarily committed to a psychiatric hospital, and upon his 

admittance, the hospital took suicide precautions, which involved 

keeping him within the sight of a staff member at all times. 

However, after several days, hospital staff determined that these 

precautions were no longer necessary, and he was transferred into a 

“step-up” ward, where he was allowed intervals of unsupervised 

access to the hospital grounds. Id. at 1187-88. The plaintiff’s 

decedent subsequently set himself on fire, resulting in his death, 

and the plaintiff brought suit against the State. The plaintiff 

alleged that, unlike Predoti, she was not claiming negligence based 

on the decision to transfer the decedent to a less restrictive 

ward, but rather based on the failure to properly supervise the 

decedent following the transfer. Id. at 1189. On those facts, the 

Appellate Division ruled that the State was immune from liability 

under N.J.S.A. 59:6-6 because the State did not simply fail to 

properly supervise but instead made a deliberate choice to provide 

the decedent with unsupervised time, which was an integral part of 
19

the treatment plan to prepare him for his release to the community. 

Id.

With respect to immunity under N.J.S.A. 59:6-6 in this case, 

Movants argue that the gravamen of the Complaint is that the 

defendants, who knew or should have known of the decedent’s history 

of mental illness, substance abuse, and suicidal tendencies, 

cleared the decedent to be released into the general prison 

population rather than isolating him or providing him with constant 

supervision. (See, e.g., Byrd’s Mot. to Dismiss at 8, 12.) Thus, 

Movants contend that they are immune from suit because the claims 

relate to their alleged failure to properly confine the decedent 

based on his mental illness and substance abuse under N.J.S.A. 

59:6-6.

Plaintiffs argue that such immunity is inapplicable here and

N.J.S.A. 59:6-6 immunity relates to “whether to commit a person for 

mental illness, as well as the terms and conditions of confinement 

‘for mental illness or drug dependence.’” (Pls.’ Opp’n to DOC 

Defs.’ Mot. to Dismiss at 23; Pls.’ Opp’n to Byrd’s Mot. to Dismiss 

at 11-12.) Plaintiffs contend that the Complaint alleges that 

decedent was incarcerated, not that he was confined for mentalhealth treatment. (Pls.’ Opp’n to Byrd’s Mot. to Dismiss at 11-12; 

Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss at 23.) According to 

Plaintiffs, the immunity at issue applies only to confinement in 
20

facilities that render treatment for mental health. (Pls.’ Opp’n

to Byrd’s Mot. to Dismiss at 12-13.) With respect to Byrd, 

Plaintiffs further argue that part of their claims rests on her 

alleged failure to review the decedent’s transfer records and 

follow prison protocol, and these actions are outside of the 

purview of the immunity conferred by N.J.S.A. 59:6-6. (Id. at 13-

14.) 

Defendant Byrd responds that, in this case, the confinement 

that results in immunity under N.J.S.A. 59:6-6 “is not the 

confinement arising from criminal conduct, but rather the choice 

not to confine for mental illness.” (Dkt. entry no. 150, Byrd’s 

Reply Br. in Support of Mot. to Dismiss at 6.)5 Byrd analogizes 

her decision to release the decedent into the general prison 

population to the decision of an emergency room doctor discharging 

a patient from a general hospital rather than placing the patient 

on suicide watch. (Id.) Byrd asserts that the case law 

contradicts Plaintiffs’ contention that the confinement for the 

purposes of this immunity must be in a mental institution. (Id. at 

6-9.) Byrd further argues that N.J.S.A. 59:6-6 applies even if 

Plaintiffs cast their claims as those for negligent supervision

because “[t]he statutory immunity of N.J.S.A. 59:6-6 applies to all 

actions and inactions by the defendant which related to the 

 

5 The DOC Defendants did not reply to the Plaintiffs’ 

Opposition to their motion to dismiss.
21

determination of whether to confine the decedent for mental 

illness.” (Id. at 10-12.)

The Court agrees with Movants and concludes that they are 

immune from liability for Plaintiffs’ state common-law claims based 

on N.J.S.A. 59:6-6. The case law demonstrates wide-ranging 

applicability of this type of immunity. It applies to police 

officers confining (or failing to confine) individuals for mentalhealth reasons. See Perona, 636 A.2d at 541. It applies even 

where the potential confinement would not be in a mental 

institution, but rather would be in police custody or in another 

ward of a hospital not specific to mental health. See id.; 

Predoti, 463 A.2d at 402-03. The Court therefore rejects 

Plaintiffs’ arguments that the potential confinement under this 

provision must be in a mental institution. 

The Court is not persuaded by Plaintiffs’ attempts to remove 

this case from the realm of the provision’s immunity based on the 

fact that the decedent was already confined because he was 

incarcerated. The decision before Movants was whether to further 

confine the decedent from the general prison population as a result 

of potential mental-health issues. Movants decided against such 

confinement, and therefore, their decision is one considering 

“whether to confine a person for mental illness or drug 

dependence.” N.J.S.A. 59:6-6. 
22

The Court finds no merit in Plaintiffs’ arguments that these 

facts are outside of the provision’s purview because they are 

claims for negligent supervision and failure to review transfer 

records. The immunity afforded by N.J.S.A. 59:6-6 applies to all 

the decisions and conduct leading up to the decision whether to 

confine the individual. See Ludlow, 702 A.2d at 508. The 

purported failure of Byrd to review the transfer records would be 

conduct in the process to the ultimate confinement decision. And a 

claim of negligent supervision implies a duty to supervise, but in 

this case, as in McNesby, Movants made a deliberate decision not to 

supervise the decedent any more than they would the general prison 

population because they did not deem such supervision necessary. 

See McNesby, 555 A.2d at 1189. For these reasons, the Court 

concludes that Movants are immune from liability for the state 

common-law claims.

Because the Court finds that Movants are immune from liability 

in their individual capacities on the state common-law claims based 

on the operation of N.J.S.A. 59:6-6, the Court need not address 

their potential immunity under N.J.S.A. 59:6-5.6 Moreover, because 

Movants are immune from liability on the New Jersey state-law 

 

6 The DOC Defendants also reference potential immunity under 

N.J.S.A. 59:6-4 without elaboration. That section relates to the 

failure to make, or to adequately make, a physical or mental 

examination. Because the Court has resolved this issue on the 

applicability of N.J.S.A. 59:6-6, the Court declines to address 

potential immunity under N.J.S.A. 59:6-4. 
23

claims, the Court declines to consider Byrd’s argument that she is 

not a “person” for the purposes of the NJCRA. (See Byrd’s Mot. to 

Dismiss at 16-17.) And lastly, the Court need not address the DOC 

Defendants’ argument that Plaintiffs improperly filed a late Notice 

of Claim, in violation of the TCA, N.J.S.A. 59:8-8 and 8-9, which 

is a procedural bar to recovery. (See DOC Defs.’ Mot. to Dismiss 

at 14-16.)

2. Constitutional Claims

The immunities established in the TCA do not provide immunity 

for the constitutional claims presented under section 1983. Tice, 

627 A.2d at 1105. The Court will analyze the individual-capacity 

constitutional claims for the adequacy of the pleadings and not for 

immunity-type issues.

The Court of Appeals for the Third Circuit has had occasion to 

consider under which circumstances liability can be imposed under 

section 1983 for prison suicides. See Colburn v. Upper Darby Twp., 

838 F.2d 663, 667, 669 (3d Cir. 1988) (hereinafter “Colburn I”); 

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) 

(hereinafter “Colburn II”). A plaintiff bringing a section 1983 

claim based on a prison suicide “has the burden of establishing 

three elements: (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 
24

reckless indifference’ to the detainee’s particular vulnerability.” 

Colburn II, 946 F.2d at 1023. This standard balances two competing 

principles. First, “a section 1983 claim arising from a prisoner’s 

suicide is not per se precluded merely because the injury resulted 

from the prisoner’s own self-destructive behavior.” Freedman, 853 

F.2d at 1115. And second, “a prison custodian is not a guarantor 

of a prisoner’s safety.” Id.

The Court of Appeals for the Third Circuit has declined to 

define “reckless indifference” in this standard but stated that it

implies that there was “a strong likelihood,” not just a mere 

possibility, of self-harm, and this standard requires that the 

custodial officials “‘knew or should have known’ of that strong 

likelihood.” Colburn II, 946 F.2d at 1024. Relying on the 

jurisprudence of sister circuits, the Court of Appeals for the 

Third Circuit stated, “Custodians have been found to ‘know’ of a 

particular vulnerability to suicide when they have had actual 

knowledge of an obviously serious suicide threat, a history of 

suicide attempts, or a psychiatric diagnosis identifying suicidal 

propensities.” Id. at 1025 n.1. With respect to the phrase 

“should have known,” the court explained that its meaning is 

distinct from its usual meaning for tort-law purposes:

[The phrase] does not refer to a failure to note a risk 

that would be perceived with the use of ordinary 

prudence. It connotes something more than a negligent 

failure to appreciate the risk of suicide presented by 
25

the particular detainee, though something less than a 

subjective appreciation of that risk. The “strong 

likelihood” of suicide must be “so obvious that a lay 

person would easily recognize the necessity for”

preventative action; the risk of self-inflicted injury 

must not only be great, but also sufficiently apparent 

that a lay custodian’s failure to appreciate it 

evidences an absence of any concern for the welfare of 

his or her charges.

 

Id. at 1025 (internal citation omitted).

The Court of Appeals for the Third Circuit in Colburn I and 

Colburn II had the opportunity to analyze the standard for a 

section 1983 claim based on a prison suicide both at the motion-todismiss stage and the summary-judgment stage. In that case, 

Melinda Lee Stierheim, who was visibly intoxicated, was taken into 

custody by the Upper Darby police. Colburn I, 838 F.2d at 664. 

Diane Miller, a custodial official with the Upper Darby police 

department, searched her, but did not find a handgun. Id. at 665. 

About four hours later, Stierheim shot herself in her cell with a 

handgun. Id. Stierheim’s mother, Sue Ann Colburn, as the 

administratrix of Stierheim’s estate sued the town, the police 

department, Miller, and several other individuals under section 

1983 for deprivation of Stierheim’s constitutional rights. Id.

The court, in the decision on the motion to dismiss, detailed 

the allegations of the complaint to determine whether they were 

insufficient as a matter of law to assert section 1983 claims based 

on a prison suicide against custodial officials in their individual 
26

capacities. Id. at 670.7 These facts included that: (1) the 

police were familiar with Stierheim from previous encounters as a 

result of her relationship with gang members; (2) the day before 

her suicide, the police had been called to her apartment after she 

had jumped out of a window during a fight with her boyfriend; (3) 

Stierheim was depressed; (4) she had obvious scars on her wrist 

from a prior suicide attempt; (5) an officer had to prevent her 

from swallowing three Valium pills that she had in her purse; (6) 

she was detained “for her own protection” by police; and (7) Miller 

discovered a round of ammunition in Stierheim’s pocket. Id. On 

the basis of these facts, the court ruled that it could not 

conclude that these allegations were insufficient as a matter of 

law to state a section 1983 individual-capacity claim against 

Miller, the custodial official who had searched Stierheim and had 

failed to discover the handgun in her possession. Id.

Following the remand in Colburn I and further development of 

the record during discovery, the court granted summary judgment in 

favor of the defendant. Colburn II, 946 F.2d at 1027. Further 

discovery revealed that the incident where Stierheim jumped out a 

window the day before her suicide did not appear to be a suicide 

 

7 The court was relying not only on the complaint but also on 

the plaintiff’s memorandum in opposition to the motion to dismiss, 

which detailed specific facts that could be asserted in an amended 

complaint depending on the court’s ruling on the motion to dismiss. 

Colburn I, 838 F.2d at 670.
27

attempt but rather an effort to escape from her boyfriend. Id. at 

1026. She accepted help from police officers in getting down when 

they arrived. Id. 

With respect to the other allegations regarding what Miller 

knew on the night in question, the court explained that while a 

trier of fact may infer that scars on Stierheim’s arms were the 

result of a suicide attempt, the record demonstrated that no one 

noticed these scars on the evening of her suicide. Id. Nothing in 

the record developed through discovery indicated “that Stierheim 

had ever been diagnosed as suffering from a mental illness 

characterized by a high risk of self-inflicted harm” or that there 

was any other indication that Stierheim was vulnerable to suicide. 

Id. While the plaintiff had relied on Stierheim’s intoxication as 

an indicator of vulnerability to suicide, the court noted its 

agreement with the majority of other circuits, “which have refused 

to recognize intoxication as a factor sufficient to trigger the 

duty to guard against self-inflicted injury.” Id. The court 

further reasoned that Stierheim’s possession of a bullet -- that 

was discovered by Miller during the search -- without more, was not 

an indicator of suicidal tendencies. Id. at 1027. Finally, the 

court concluded that, while consumption of a large quantity of 

drugs could manifest suicidal intent, the three pills that Miller 
28

believed that Stierheim had tried to swallow were insufficient to 

“make it apparent that a detainee is on the verge of suicide.” Id.

The court was convinced, following the development of the 

record through discovery, “that no fair-minded jury could conclude 

. . . that Stierheim had a particular vulnerability to suicide of 

which Miller should have been aware.” Id. Thus, the court 

affirmed the district court’s grant of summary judgment in favor of 

Miller. Id.

Following Colburn I and Colburn II, the Court of Appeals for 

the Third Circuit has had several opportunities to apply the 

standard for section 1983 claims based on prison suicides. In 

Freedman v. City of Allentown, the court found that the plaintiffs’ 

allegations that the decedent prisoner had prominent scars on his 

wrists, when viewed in the light most favorable to the plaintiffs, 

amounted merely to negligence and did not state a viable section 

1983 claim. 853 F.2d at 1116. While there were allegations that 

the decedent prisoner had suicidal tendencies and had previously 

attempted suicide, the allegations did not suggest that this was 

known to the individual police officers but rather that the 

probation officer knew about the decedent’s suicidal past and 

failed to mention it to the officers. Id. at 1115. For these 

reasons, the court affirmed the dismissal of the complaint against 

the police officers. See id. at 1116.
29

Similarly, in Kulp v. Veruete, following discovery, the court 

affirmed the district court’s grant of summary judgment where the 

defendants had recognized that the decedent had some emotional 

issues and potentially “passive suicidal thoughts,” but two 

counselors, after extended evaluations, did not think it was

necessary to place the decedent on suicide watch. 267 Fed.Appx. 

141, 144 (3d Cir. 2008). 

Where the allegations in the complaint demonstrate concrete, 

direct knowledge on the part of the defendant officials of the 

decedent’s suicidal tendencies and an inexplicable disregard of the 

warning signs, a motion to dismiss should be denied. For example, 

in Tatsch-Corbin v. Feathers, the complaint averred that the 

decedent was released into the general prison population as opposed 

to being placed on suicide watch even though: the defendant 

officials had specific, direct knowledge of the decedent’s history 

of mental-health issues and suicide attempts; the decedent 

indicated he was considering killing himself to an intake officer; 

and the decedent made additional suicide threats to prison 

officials as he was escorted to and from a hearing the day before 

his suicide. 561 F.Supp.2d 538, 540-542 (W.D. Pa. 2008). The 

United States District Court for the Western District of 

Pennsylvania concluded on these facts that a jury could find that 
30

officials acted with deliberate indifference to the decedent’s 

condition and, thus, denied the motion to dismiss. Id. at 544.

Plaintiffs in this case argue that the standard for section 

1983 liability in prison suicide cases is established by the facts. 

Plaintiffs assert that Defendants’ “failure to follow protocol 

despite specific knowledge that it could lead to self-inflicted 

harm, including the failure to properly monitor and supervise the 

inmate in his cell and/or allow bedsheets in the cell among other 

failures can amount to deliberate indifference sufficient to impose 

individual liability.” (Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss 

at 19.) 

The Court will consider this standard with respect to the 

allegations against the defendants individually. According to the 

Complaint, Dimler was responsible for supervising the decedent once 

he had been released into the general prison population through the 

time of his suicide. (Compl. at ¶ 26.) Teel was the medical 

provider responsible for the decedent’s care and supervision from 

the time he was placed in the general prison population until his 

death. (Id. at ¶ 32.) Dimler and Teel “knew or should have known 

of the history of suicide and psychiatric illness suffered by” the 

decedent and that the decedent was an addict at a high risk for 

suicide. (Id. at ¶¶ 27, 33, 62.) According to the Complaint, both

disregarded the decedent’s risk of suicide and violated policy and 
31

procedure, by failing to adequately monitor the decedent, allowing 

him to be in his cell with materials that could harm him, and 

failing to intervene to prevent the suicide. (Id. at ¶¶ 28-29, 34-

35, 60, 61.) The Complaint also asserts that Dimler and Teel 

failed to review the transfer records from Kintock in order to 

determine what level of supervision was required. (Id. at ¶ 36, 

62.) Dimler and Teel also purportedly failed to evaluate the 

decedent for intoxication as was required by prison policy and 

procedure. (Id. at ¶ 53.)

The Court finds that the conclusory allegations with respect 

to Dimler and Teel are insufficient as a matter of law and fail to 

demonstrate -- even when viewed with all inferences in Plaintiffs’ 

favor -- that they would have had any reason to be concerned about 

the decedent’s risk of suicide. See Freedman, 853 F.2d at 1114 

(stating that court must look past conclusory allegations). With 

respect to the allegations that Dimler and Teel failed to review 

the transfer records or evaluate the decedent for intoxication, the 

Court finds that these conclusory allegations, even if taken as

true, would merely establish negligence and would fall short of the 

reckless indifference required by Colburn II. 946 F.2d at 1023. 

Plaintiffs have not pled -- beyond conclusory statements that 

merely restate the legal standard -- actual knowledge on the part 

of Dimler or Teel. Id. at 1025 n.1. Nor have Plaintiffs pled that
32

they “should have known” of the decedent’s vulnerability to 

suicide, as the Complaint fails to point to any actions of the 

decedent that would have alerted Dimler or Teel to the fact that he 

was a suicide risk. Plaintiffs have not alleged how Teel and 

Dimler, in the course of their duties, would have been aware of the 

decedent’s particular vulnerability. This “should have known” 

standard requires “something more than a negligent failure to 

appreciate the risk of suicide,” and the Complaint, viewed in the 

light most favorable to Plaintiffs, does not provide allegations 

capable of satisfying this standard. Id. at 1025. Therefore, the 

Complaint will be dismissed in its entirety as to Dimler and Teel.

In contrast, the Court finds that the Complaint, when viewed 

in the light most favorable to Plaintiffs with all inferences drawn 

in their favor, states a claim against Byrd in her individual 

capacity under section 1983 for a prison suicide. The Complaint 

alleges that Byrd performed a nursing intake on January 16, 2009 

and noted that the decedent had answered in the affirmative to 

questions regarding whether he had a history of suicidal tendencies 

and whether he had been hospitalized or treated for psychiatric 

illness. (Compl. at ¶ 50.) Despite this, Byrd purportedly cleared 

the decedent to be placed into the general prison population. (Id.

at ¶ 59.) The Court finds that these specific allegations of 

Byrd’s basis for knowledge of the decedent’s vulnerability to 
33

suicide are sufficient to overcome a motion to dismiss. Colburn II

-- in reliance of the jurisprudence of other circuits --

specifically states that actual knowledge may be based on a history 

of suicidal tendencies. 946 F.2d at 1025 n.1. Plaintiffs have 

adequately pled a section 1983 individual-capacity claim against 

Byrd following a prison suicide based on her actual knowledge of 

the decedent’s particular vulnerability. 

Plaintiffs request that, if the Court deems any of the claims 

insufficient (for example the individual-capacity claims against 

Dimler and Teel), the Court permit additional discovery to assist 

in the development of the claims in the Complaint. (Pls.’ Opp’n to 

Byrd’s Mot. to Dismiss at 15-16; Pls.’ Opp’n to DOC Defs.’ Mot. to 

Dismiss at 24.) The Court concludes that the lack of specificity 

is not “fairly attributable to the defendants’ control of required 

information.” See Freedman, 853 F.2d at 1114. The Court finds 

that these allegations seek to impose liability against these 

defendants on a negligence standard, which is not permitted for 

prison suicide cases. Therefore, the Court declines to permit 

discovery to allow development of the claims against Dimler and 

Teel.

C. Supervisory Liability

With regard to the liability of the Supervisory Defendants, 

Plaintiffs refer to federal jurisprudence on section 1983 municipal 
34

liability under Monell v. Department of Social Services of the City 

of New York, 436 U.S. 658 (1978). (See Pls.’ Opp’n to DOC Defs.’ 

Mot. to Dismiss at 14-16.) In contrast to state government 

defendants, the Eleventh Amendment does not bar damage awards 

against municipalities and municipal officials in their official 

capacity. Monell, 436 U.S. at 690 n.54, 55. Likewise, municipal 

officers named in their official capacities are “persons” for 

section 1983 purposes. Id. at 690 n.55. 

The one municipal defendant here -- Mercer County -- was 

dismissed from the action by stipulation of the parties on March 

22, 2011. (See Stip. of Dismissal as to Mercer County.) 

Plaintiffs and Movants consistently treat all the individual 

defendants as state officials, not municipal officials. As 

discussed, these officials enjoy immunity under the Eleventh 

Amendment when sued in their official capacity. Thus, Plaintiffs’

citations to municipal liability under Monell and its progeny are 

irrelevant. (See Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss at 14-

16.)

Notwithstanding Monell’s inapplicability, supervisory 

liability under section 1983 is possible. However, such liability 

must be premised on the supervisory defendant’s personal 

involvement in the wrongs; “it cannot be predicated solely on the 

operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 
35

1195, 1207 (3d Cir. 1988); see also Polk Cnty. v. Dodson, 454 U.S. 

312, 325 (1991). 

There are two theories under which supervisory liability may 

be premised for section 1983 purposes. A.M. v. Luzerne Cnty. Juv.

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). First, “[i]ndividual 

defendants who are policymakers may be liable under § 1983 if it is 

shown that such defendants, with deliberate indifference to the 

consequences, established and maintained a policy, practice or 

custom which directly caused [the] constitutional harm.” Id.

(internal quotations and citation omitted). Second, “a supervisor 

may be personally liable under § 1983 if he or she participated in 

violating the plaintiff’s rights, directed others to violate them, 

or, as the person in charge, had knowledge of and acquiesced in his 

subordinates’ violations.” Id.; see also Rode, 845 F.2d at 1207. 

This second theory essentially requires that the acts or omissions

of the supervisor were the “moving force” behind the harm. Sample 

v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989); Jackson v. Taylor, 

No. 05-823, 2006 WL 2347429, at *2 (D. Del. May 12, 2006).

“Allegations of participation or actual knowledge and acquiescence, 

however, must be made with appropriate particularity.” Rode, 845 

F.2d at 1207. 

The DOC Defendants argue that, based on the foregoing, the

Complaint is deficient with respect to the Supervisory Defendants –
36

- Balicki, Patterson, and Dunlap-Pryce. Specifically, the DOC 

Defendants argue that the Complaint lacks specific facts regarding:

(1) the conduct of the Supervisory Defendants; and (2) which policy 

or procedure they failed to follow or implement. (DOC Defs.’ Mot. 

to Dismiss at 12-14.) Plaintiffs counter that the alleged facts 

demonstrate “both the direct knowledge and participation of the 

Supervisory Defendants in obtaining and reviewing transfer records 

of inmates in their facilities” and that the Supervisory Defendants 

failed “to enact, implement and enforce policies and procedures”

for: (1) the review of transfer records; and (2) the treatment of 

individuals with addiction/intoxication issues or who pose a risk 

of self-harm/suicide. (Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss 

at 18.) Plaintiffs claim that this “foreseeably led to the suicide 

of Mullin and which evidenced a gross indifference and reckless 

disregard for the rights of” the decedent. (Id.) Plaintiffs argue 

that it is unreasonable to expect them to be able to identify the 

exact policy at issue, as, without discovery, Plaintiffs do not 

have access to internal department policies and procedures. (Id.

at 19.)

The Court of Appeals for the Third Circuit has addressed 

claims against supervisory defendants in the prison suicide context

under similar facts. In Colburn I, despite allowing the claims to 

proceed over a motion to dismiss against the custodial official who 
37

was personally involved in alleged wrongdoing, the court dismissed 

the claims against the supervisory defendants -- the police 

commissioner of Upper Darby Township and the mayor of Upper Darby -

- in their individual capacities because the complaint lacked 

allegations that these supervisory defendants were personally 

involved in any of the activities related to the decedent’s 

suicide. Colburn I, 838 F.2d at 673. 

The Court finds the Complaint in this case to be similarly 

deficient with respect to the Supervisory Defendants. The 

Complaint identifies Balicki, Patterson, and Dunlap-Pryce as 

“supervisory official[s].” (Compl. at ¶¶ 2-4.) The Complaint 

alleges that the decedent was in the custodial care of the 

Supervisory Defendants and that agents of the Supervisory 

Defendants examined the decedent. (Id. at ¶¶ 37, 39.) The 

Complaint alleges that the Supervisory Defendants “knew or should 

have known based on daily intake records at their disposal that” 

the decedent was being transferred to their care and that he had a 

history of suicide attempts, psychiatric problems, and drug abuse. 

(Id. at ¶ 63.) Under policy and procedure, Plaintiffs aver that 

the Supervisory Defendants were required to know the status of 

inmates brought into their facilities and to review the transfer 

records. (Id. at ¶ 64.) Plaintiffs allege that the Supervisory 

Defendants failed to review these records and to ensure that the 
38

decedent was properly treated as a suicide risk. (Id. at ¶ 65.) 

Finally, Plaintiffs assert that the Supervisory Defendants failed 

to enact and enforce policies and procedures requiring the review 

of transfer records and the proper treatment of those who had 

addiction problems or who were a suicide risk. (Id. at ¶ 66.) 

The Court finds that, as in Colburn I, these allegations are 

insufficient to survive a motion to dismiss. The Complaint lacks 

any allegations that these Supervisory Defendants were personally 

involved in the actions at issue. See Colburn I, 838 F.2d at 673. 

Plaintiffs do not allege that these Supervisory Defendants 

participated, directed, or acquiesced in the violation of the 

decedent’s rights. See A.M., 372 F.3d at 586.

While Plaintiffs also seek to hold the Supervisory Defendants 

liable under the policy or practice theory of supervisory 

liability, see id., the Court finds that the Complaint is far too 

conclusory with respect to any deficiencies in any policy or 

practice. And while Plaintiffs have argued that it is unreasonable 

to expect them to identify the policy or procedure without 

discovery, the Court will not allow a fishing expedition into the 

operations of the state department of corrections absent any 

indication by Plaintiffs that such discovery will be fruitful. For 

these reasons, the Court will dismiss the claims asserted against 

the Supervisory Defendants in their entirety.
39

D. Punitive Damages

Plaintiffs have requested punitive damages against the 

individual defendants. Punitive damages are available for section 

1983 claims when the conduct of the defendant “involves reckless or 

callous indifference to the federally protected rights of others.” 

Smith v. Wade, 461 U.S. 30, 56 (1983). This is true even when the 

underlying liability standard for compensatory damages is that of 

recklessness. Id. Where the facts allege reckless conduct, and 

the allegations of the complaint with respect to that conduct are 

found to be sufficient to withstand a motion to dismiss, a court 

may decline to dismiss punitive-damage claims at the motion-todismiss stage. See, e.g., Tatsch-Corbin, 561 F.Supp.2d at 545.

The claims asserted against the majority of the defendants

will be dismissed, thereby resulting in the dismissal of the 

punitive-damage claims against these defendants as well. However, 

with respect to Byrd, the Court has found that the Complaint 

adequately pleads a claim for relief. Therefore, the Court 

declines to dismiss Plaintiffs’ request for punitive damages 

asserted against Byrd at his juncture.

IV. CONCLUSION

The Court for the reasons stated above, will (1) grant the 

motion to dismiss by Balicki, Patterson, Dunlap-Pryce, Dimler and 

Teel, (2) deny the motion for judgment on the pleadings by Byrd 
40

insofar as it concerns individual-capacity, constitutional claims 

asserted against her, and (3) otherwise grant Byrd’s motion. 

Remaining before the Court in this matter are Plaintiffs’ claims 

against Kintock (which did not move to dismiss any claims) and the 

constitutional claims against Byrd in her individual capacity. The 

Court will issue an appropriate Order.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: November 1, 2013