Colburn v. Upper Darby Township

OPINION OF THE COURT SLOVITER, Circuit Judge. I. Issue This action was filed under 42 U.S.C. § 1983 alleging that the suicide of decedent by a self-inflicted gun wound while she was detained in police custody apparently for public drunkenness was a result of constitutional violations by the officials responsible for her custody and the municipality which employs them. The district court, without permitting amendment, dismissed the complaint. In determining whether the district court erred as a matter of law, we must look once again to our precedent on the extent of factual specificity required in civil rights complaints and on the nature of conduct which constitutes a constitutional deprivation. II. Facts Sue Ann Colburn, the administratrix of the estate of Melinda Lee Stierheim, filed this action against Upper Darby Township (Upper Darby); the Upper Darby police department; Diane Miller, both individually and in her official capacity as an Upper Darby police officer; Martin Kerns, both individually and in his official capacity as Upper Darby police commissioner; and James Ward, both individually and in his official capacity as Upper Darby mayor. The facts, as set forth in the original complaint, are as follows. At approximately 5:00 p.m. on April 30, 1985, Stierheim, dressed in blue denim shorts and a halter top and “visibly intoxicated”, was taken into custody by the Upper Darby police. — 665 — Before placing Stierheim in a jail cell, Miller, the police matron on duty at the time, searched Stierheim. Miller did not find any handgun concealed on Stierheim’s person. Approximately four hours later, while in her cell, Stierheim shot herself with a handgun. Stierheim died later that night, becoming the third person since 1982 to have committed suicide while in Upper Darby police custody. The complaint alleges that Miller’s search and supervision of Stierheim was negligently and/or recklessly performed, that defendants have exhibited a “custom of laxity regarding the supervision and monitoring of their jail cells and in searching individuals taken into police custody,” and that defendants’ “failure to provide adequate supervision and monitoring of their jail cells and their failure to provide adequate training to police officers-matrons in searching individuals taken into police custody amounts to gross negligence and a deliberate indifference to the safety and lives of individuals taken into custody and detained.” App. at 8. It is also alleged that defendants “knew or had reason to know from their observation that [Stier-heim] was a suicidal risk.” App. at 10. The inadequate search and supervision are alleged to have been the proximate cause of Stierheim’s death. Recovery is sought under 42 U.S.C. § 1983 for deprivation of Stierheim’s constitutional rights under the Eighth and Fourteenth Amendments.1 Defendants moved for dismissal of the complaint. They argued, inter alia, that the complaint failed to plead with the requisite factual specificity a constitutional deprivation sufficient to support a due process claim against any of the defendants; that with respect to Kerns and Ward, the complaint failed to allege facts supporting individual liability; that the complaint failed to plead with requisite specificity an official custom or policy sufficient to support municipal liability; and that since Stierheim was not convicted of any crime, she could assert no Eighth Amendment claim. The district court granted the motion to dismiss without opinion. After the court’s order dismissing but within the time allowed by stipulation approved by the court, Colburn filed an answer to the motion to dismiss and a supporting memorandum.2 Colburn also moved for reconsideration. In the court’s opinion denying reconsideration, it explained that it dismissed the section 1983 due process claim against Miller individually because negligent actions cannot produce constitutional deprivations actionable under section 1983, and because “[t]he facts as stated lack sufficient specificity to tie together the allegedly inadequate frisk and the subsequent suicide.” App. at 110. Similarly, the court dismissed the section 1983 due process claims against all defendants in their official capacities because “[a] conclusory allegation that a municipal police force is lax in carrying out its duties is the exact type of negligent behavior the Supreme Court intended to exclude from the scope of section 1983,” and because “[t]he extension of municipal liability to cover unforeseeable and tragic events caused directly by the superseding actions of a third party is beyond the realm of cognizable section 1983 violations.” App. at 111. The court also held that the Eighth Amendment was inapplicable since Stierheim was unconvicted. Colburn appeals from the order that denied her motion for reconsideration and thereby granted defendants’ motion to dismiss. III. The Pleading Standard To sustain the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), “‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,’ and determine whether, under any reasonable read — 666 — ing of the pleadings, the plaintiff may be entitled to relief.” Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985) (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir.1977) (per curiam)). The dual policy concerns of protecting state officials from a deluge of frivolous claims and providing state officials with sufficient notice of the claims asserted to enable preparation of responsive pleadings have led us to impose on section 1983 claims the additional pleading requirement that the “complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.” Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981); see also Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 67 (3d Cir.1986); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir.1976). The heightened specificity requirement for section 1983 claims does not alter the general standard for ruling on motions to dismiss under Rule 12(b)(6). See Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). As we stated in Frazier, “the crucial questions are whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer.” 785 F.2d at 68; accord District Council 47, American Federation of State, County and Municipal Employees v. Bradley, 795 F.2d 310, 313 (3d Cir.1986). We have routinely held that complaints comply with this standard if they allege the specific conduct violating the plaintiff’s rights, the time and the place of that conduct, and the identity of the responsible officials. See id. at 314; Frazier, 785 F.2d at 68-70; Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978). A plaintiff is not required to provide either proof of her claims or “a proffer of all available evidence” because in civil rights cases “much of the evidence can be developed only through discovery” of materials held by defendant officials. Frazier, 785 F.2d at 68, quoted with approval in District Council 47, 795 F.2d at 313. Moreover, we have held that “failure to permit amendment of a complaint dismissed for want of specific allegations constitutes an abuse of discretion.” Ross, 638 F.2d at 650; see also District Council 47, 795 F.2d at 316. Of course, the district court need not permit an amendment that would be insufficient to cure the deficiency in the original complaint. See Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (per curiam) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)); 3 J. Moore, Moore’s Federal Practice § 15.10, at 15-106 & n. 5 (2d ed. 1985). A review of the record provides ample explanation why plaintiff did not file a motion to amend her complaint. Defendants filed their motion to dismiss on May 16,1986. Stipulations between counsel, approved by the court, extended plaintiffs time to answer or otherwise move with respect to defendants’ motion to dismiss until June 27, 1986. Nonetheless, by order signed June 23, 1986 and entered June 24, 1986, the district court granted what it termed the “unopposed” motion to dismiss for the reasons stated therein. On June 27, 1986, within the time of the extension previously approved by the court, plaintiff filed her answer and a forty page memorandum in opposition to the motion to dismiss which referred to additional facts in support of her cause of action. Plaintiff argued, inter alia, that the complaint was pled in sufficient detail, but also requested, if necessary, that the court “permit plaintiff to amend the complaint following completion of discovery.” App. at 75. Because the court had already dismissed the complaint, plaintiff also filed on the same day a motion for reconsideration of the district court’s order. It might have been preferable for plaintiff to have appended her proposed amended complaint to a motion so that the district court would have had before it the precise allegations that plaintiff was prepared to make. Under the circumstances, and in particular because of the court’s premature dismissal order, we do not deem plaintiff’s failure to file a formal motion to amend — 667 — dispositive. We have repeatedly directed the district courts in section 1983 cases to consider proposed amendments, even in the absence of a petition for leave to amend. See, e.g., Rotolo, 532 F.2d at 923. As Judge Garth, writing for the court in District Council 47, 795 F.2d at 316, stated: “The fact that [plaintiff] appealed the dismissal of this complaint rather than seeking leave to amend pursuant to Fed.R.Civ. P. 15(a) before the district court should not prejudice the plaintiffs____ [W]e have never required plaintiffs to request leave to amend following a district court’s dismissal of a complaint.” Plaintiff's counsel advised us at oral argument that plaintiff is in a position to file an amended complaint that will include allegations referred to in her memorandum filed in the district court. App. at 70-72. Therefore we need not decide whether the complaint as originally filed was properly dismissed; it is more expedient to consider whether the allegations of the complaint together with those that counsel has represented plaintiff would make if given leave to amend would state a claim under section 1983. In reviewing the sufficiency of civil rights complaints, we cannot avoid noting the difficulty plaintiffs and their counsel may have in attempting to accommodate this court’s requirement of factual specificity with amended Fed.R.Civ.P. 11. That rule equates the signature of an attorney or party signing a pleading with a certificate that the pleading “is well grounded in fact,” and requires plaintiffs to make “some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the law.” Fed.R.Civ.P. 11 Advisory Committee’s Notes concerning 1983 Amendment. However, the Advisory Committee has explained that, “[t]he standard is one of reasonableness under the circumstances.” Id. One of the circumstances to be considered is whether the plaintiff is in a position to know or acquire the relevant factual details. The administratrix in this action is in a particularly difficult position because Stierheim is dead and the results of defendants’ investigations into the incident are apparently not a matter of public record. Defendants have not yet responded to plaintiff’s interrogatories and her requests for production of documents. We must take these factors in consideration in determining whether, at this preliminary stage, we can hold as a matter of law that plaintiff’s allegations cannot reasonably be read to state a claim under section 1983. IV. The Requirements of a Section 1983 Claim Defendants do not dispute that the complaint sufficiently alleges one of the two prerequisites of a section 1983 action, that the conduct complained of must be committed by a person acting under color of state law. Instead they challenge the complaint’s sufficiency in alleging the second requirement, that the conduct complained of deprived the plaintiff of a right or privilege secured by the Constitution or the laws of the United States. See Riley v. Jeffes, 777 F.2d 143, 145 (3d Cir.1985). They argue that the failure to prevent Stierheim’s suicide does not rise to the level of a constitutional violation since they have no obligation “to protect a prisoner from self-destructive behavior.” Appellees’ Brief at 28. We cannot accept the defendants’ argument that a prisoner’s suicide can never give rise to a section 1983 violation. Cases where the injury to the victim is caused by violence from persons other than the defendant officials acting under color of law present difficult issues. In Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir.1987), we considered whether a section 1983 complaint could be sustained against custodial officials for their allegedly reckless actions in maintaining an insecure jail from which a dangerous prisoner escaped and thereafter murdered nearby residents. In upholding the district court’s dismissal of the complaint, we distinguished between the relationship of custodial officials and the general public, at issue in Russell, and the relationship of custodial officials and persons in their custody. We held that the escaped prisoner’s — 668 — crime against a member of the general public could not reasonably be attributed to the custodial officials. Id. at 17. On the other hand, we stated that “[a] prisoner is, by virtue of his or her custody, in a special relationship with the custodial authorities and dependent upon them for protection.” Id. at 16. We continued, “[i]f the authorities recklessly disregard the prisoner’s safety, they may be liable under § 1983 for actions performed by another inmate.” Id. In our earlier opinion in Davidson v. O’Lone, 752 F.2d 817 (3d Cir.1984) (in banc), aff'd sub nom. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed. 2d 677 (1986), we considered the claim of a prison inmate who suffered a deprivation of a liberty interest through an attack by another inmate. We reasoned that “[b]ecause an inmate is not free to leave the confines which s/he is forced to share with other prisoners, the state bears the responsibility for the inmate’s safety.” Davidson, 752 F.2d at 821. We stated that liability may be imposed on prison officials, even for assaults which they did not commit, “if there was intentional conduct, deliberate or reckless indifference to the prisoner’s safety, or callous disregard on the part of prison officials.” Id. at 828. We reaffirmed that where prison officials infringed a liberty interest by intentional conduct, gross negligence, or reckless indifference, or an established state procedure, the matter is actionable under section 1983. Id.3 We see no reason not to apply a similar construction of section 1983 when the acts causing the injury are those of the prisoner herself. A detainee is entitled under the Due Process Clause of the Fourteenth Amendment to, at a minimum, no less protection for personal security than that afforded convicted prisoners under the Fourteenth Amendment and no less a level of medical care than that required for convicted prisoners by the Eighth Amendment. See Boring v. Kozakiewicz, 833 F.2d 468, 471-72 (3d Cir.1987); Norris v. Frame, 585 F.2d 1183, 1187 (3d Cir.1978); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1079-80 (3d Cir.1976); see also City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983) (detainee’s due process rights are at least as great as prisoner’s Eighth Amendment rights); Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed. 2d 447 (1979) (pretrial detainees have additional due process right to freedom from punishment). In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court held that prison officials were entitled to search inmates and their cells to discover contraband in order to prevent prison violence. The violent behavior referred to included not only prisoners’ assaults against prison staff, visitors, and other prisoners, but also prisoners’ suicides. In that connection, the Court stated: Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self restraint ... During 1981 and the first half of 1982, ... there were over 125 suicides in [state and federal prisons]. Id. at 526, 104 S.Ct. at 3200. Significant for our purposes is the Court’s statement that prison administrators “are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves.” Id. at 526-27, 104 S.Ct. at 3200-01. The viability of a section 1983 complaint arising from the suicide of a pretrial detain — 669 — ee was considered in depth in Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182 (5th Cir.1986). In that case a boy who exhibited agitation and aberrant behavior when arrested for burglary and theft and who had previously had a nervous breakdown, a fact communicated to the arresting officer, committed suicide shortly after being placed in solitary confinement. In reversing the dismissal of the complaint, Judge Wisdom, writing for the majority, stated that “the defendants had a duty, at a minimum, not to be deliberately indifferent to [the detainee’s] serious medical needs.” Id. at 1187. He continued: A serious medical need may exist for psychological or psychiatric treatment, just as it may exist for physical ills. A psychological or psychiatric condition can be as serious as any physical pathology or injury, especially when it results in suicidal tendencies. And just as a failure to act to save a detainee from suffering from gangrene might violate the duty to provide reasonable medical care absent an intervening legitimate government objective, failure to take any steps to save a suicidal detainee from injuring himself may also constitute a due process violation. Id. at 1187 (footnotes omitted). The principal theory of the complaint in Partridge was that the boy’s death was “caused by the detention center’s custom or policy of allowing jail procedures that are callous to the point of deliberate indifference to detainees, especially detainees in need of protection from injuring themselves or others.” Id. at 1185. The court held that “to the extent that the claim rests on the detention center’s deliberate and systematic lack of adequate care for detainees, it alleges the kind of arbitrariness and abuse of power that is preserved as a component of the due process clause in Daniels [v. Williams, [474 U.S. 327] 106 S.Ct. 662 [88 L.Ed.2d 662] (1986)].” Id. at 1187. Other courts have similarly sustained the viability of complaints alleging that officials have demonstrated deliberate indifference to detainees’ suicidal tendencies. See Roberts v. City of Troy, 773 F.2d 720, 724-25 (6th Cir.1985); Madden v. City of Meriden, 602 F.Supp. 1160, 1163-64 (D.Conn.1985); see also Jackson v. Chicago, 645 F.Supp. 926, 927-28 (N.D.Ill.1986); Matje v. Leis, 571 F.Supp. 918, 930 (S.D.Ohio 1983). This court has suggested that such a showing will support section 1983 liability, rejecting a similar claim only because the plaintiffs had failed to prove at trial anything more than negligence on the part of the police officers. See Patzig v. O’Neil, 577 F.2d 841, 847-48 (3d Cir.1978). Defendants rely on two district court cases, Williams v. City of Lancaster, Pennsylvania, 639 F.Supp. 377 (E.D.Pa.1986) and Grant v. City of Philadelphia, No. 83-5424 (E.D.Pa. Dec. 5, 1985) [Available on WESTLAW, 1985 WL 4290], where plaintiffs’ section 1983 actions based on the suicide of pretrial detainees were unsuccessful. Neither of those cases involved a motion to dismiss the complaint. Instead, both cases were decided on summary judgment following discovery. Thus, for example, based on the material before it on summary judgment, the district court in Williams was able to conclude that defendants’ action could not be termed more than negligence and that “the officers’ failure to seek out medical care cannot be said to be a deliberate or reckless indifference to Williams’ health and safety.” Williams, 639 F.Supp. at 383. A similar conclusion was reached by the same court in Grant. Since the case before us was decided on a motion to dismiss the complaint rather than on a motion for summary judgment, and there has been no discovery, we need not consider whether this court would have decided those cases the same way. Of course we agree that custodial officials cannot be placed in the position of guaranteeing that inmates will not commit suicide. On the other hand, if such officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability. In Estate of Bailey by Oare v. County of York, 768 F.2d 503, 508 (3d Cir.1985), — 670 — this court further elucidated this issue when we held: The allegations of the complaint may fairly be read to allege conduct rising to the level of deliberate indifference, reckless disregard, or gross negligence by the agency and by its supervisory officials fairly attributable to policies and practices of the agency. They allege more than the mere “negligent monitoring of the mother’s household,” as stated by the dissent. They therefore adequately meet the standard of conduct encompassed by § 1983. See, e.g., Voutour v. Vitale, 761 F.2d 812, 820-22, 823 (1st Cir.1985); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981). We have not yet had occasion to define “gross negligence” or distinguish it from “reckless disregard” or “reckless indifference” in the civil rights context.4 Even if we were convinced that there could be a meaningful distinction between these terms for purposes of section 1983 actions, it would be premature to attempt to draw such a fine line at this stage of the proceeding. Since the Supreme Court has recognized the obligation of prison officials to take reasonable measures to guarantee the safety of inmates, our inquiry is merely whether the putative amended complaint can fairly be construed as alleging a violation of that duty sufficient to constitute deprivation of Stierheim’s due process rights. V. Sufficiency of the Complaint A. The complaint in this case alleges that defendants knew or should have known that Stierheim was a suicide risk. App. at 10. While this allegation standing alone may not have met this court’s standard for a modicum of factual specificity in civil rights complaints, plaintiff, in her memorandum in opposition to defendants’ motion to dismiss in the district court, buttressed her complaint allegation with the following facts which could be asserted in an amended complaint: (1) that the Upper Darby police were familiar with Stierheim from previous encounters as a result of her relationship with members of the “Warlocks” motorcycle gang; (2) that on the day before her suicide the Upper Darby police had been called to Stierheim’s apartment after Stierheim had jumped from the window following an argument with her boyfriend; (3) that Stierheim was extremely depressed for personal reasons; (4) that Stierheim had obvious scars on her right wrist from a previous suicide attempt; (5) that the detaining officer had to prevent Stierheim from swallowing three Valium pills she had removed from her purse; (6) that Stierheim was detained by the police “for her own protection”; and (7) that Miller found a live round of ammunition in Stierheim’s pocket. App. at 70-71.5 We cannot conclude that as a matter of law that these allegations are insufficient to state a claim under section 1983 against Miller, the custodial official, in her individual capacity. It does not appear that plaintiff’s proposed amended complaint is frivolous, or that such a complaint would give defendants insufficient notice to enable them to file an answer. Plaintiff is therefore entitled to a reasonable amount of discovery to help her make the necessary showing to prove her case. For example, — 671 — presumably defendants found the gun that killed Stierheim. Discovery could show whether it is conceivable that the gun could have been concealed in a body cavity (which was suggested by defendants at oral argument). It follows that the district court erred in dismissing the complaint against Miller in her individual capacity without permitting an amendment that sufficiently states a claim under section 1983. The complaint as proposed to be amended is sufficient to withstand a motion to dismiss by Miller.6 B. Defendant Upper Darby Township7 cannot be held liable in a section 1983 action for its employees’ actions solely on the basis of respondeat superior. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978). It can be liable only if the action alleged to be unconstitutional either "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers” or is “visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id. at 690-91, 98 S.Ct. at 2035-36. Even in the absence of formal policymak-ing activity, “an ‘official policy’ may be inferred ‘from informal acts or omissions of supervisory municipal officials,’ ” Estate of Bailey by Oare v. County of York, 768 F.2d at 506 (quoting Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980)), although not from the misconduct of a single low-level officer. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 821-24 (plurality opinion), 830-31, 105 S.Ct. 2427, 2435-37 (plurality opinion), 2439-40, 85 L.Ed.2d 791 (Brennan, J., concurring); see also Bartholomew v. Fischl, 782 F.2d 1148, 1154 (3d Cir.1986) (“it is possible that a ‘single instance’ of misconduct by a poli-cymaking city official could provide the basis for an inference that an official policy existed.” (emphasis added)). Moreover, as we stated in Davidson, 752 F.2d at 828, “when officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such failure would support a claim under § 1983. See, e.g., Murray v. City of Chicago, 634 F.2d 365 (7th Cir.1980), cert. dismissed sub. nom. Finley v. Murray, 456 U.S. 604, 102 S.Ct. 2226, 72 L.Ed.2d 366 (1982).” Colburn’s complaint alleges that Miller, Upper Darby, Ward (the Mayor), the Upper Darby police, and Kerns (the Police Commissioner), “have exhibited a custom of laxity regarding the supervision and monitoring of their jail cells and in searching individuals taken into police custody.” App. at 8. The defendants argue that a “custom of laxity” cannot be the type of custom sufficient to support municipal liability under section 1983. Appellees’ Brief at 8. To the contrary, we have made clear our position that “an ‘official policy’ may be inferred ‘from informal acts or omissions of supervisory municipal officials.’ ” Estate of Bailey by Oare v. County of York, 768 F.2d at 506 (citation omitted) (emphasis added); see also Wellington v. Daniels, 717 F.2d 932, 935 (4th Cir.1983). — 672 — In Black v. Stephens, 662 F.2d 181, 189-91 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 72 L.Ed.2d 475 (1982), it was the failure of the police chief to take certain actions, i.e. delaying disciplinary investigations into conduct of an officer charged with excessive force and failure to file citizens’ complaints about excessive force in the officers’ permanent personnel file, that provided the basis for the inference of the police chief’s “policy of encouraging the use of excessive force.” That evidence led us to uphold a jury’s finding of liability against the police chief and the City of Allentown, on the basis of a “governmental policy.” In Partridge v. Two Unknown Police Officers, 791 F.2d at 1188-89, the Fifth Circuit held that the allegation that the Houston police department “had a custom of inadequate monitoring of suicidal detainees which amounted to a policy of denying them medical care” satisfied the requirements of Monell. In this case plaintiff has done more than merely allege a “custom of laxity” which can be inferred from the “[defendants’ failure to provide adequate supervision and monitoring of their jail cells”. That allegation alone might not satisfy our requirement for a “modicum of factual specificity” in civil rights cases. However, plaintiff has alleged that Stierheim was the third person to commit suicide while in police custody at the Upper Darby Township police department jail since November 1982. App. at 8. The two prior suicides can be viewed as providing the governing body of Upper Darby with actual or constructive knowledge of the alleged custom of inadequate monitoring of jail cells. See Partridge, 791 F.2d at 1189. In short, we cannot hold that the complaint provides no basis for finding liability against Upper Darby or its governing officials in their official capacity. Although it may be difficult for plaintiff to prove the “ ‘nexus between the policy ... and the infringement of constitutional rights’ ”, see Talbert v. Kelly, 799 F.2d 62, 67 (3d Cir.1986) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d at 507), we cannot say at this stage of the proceeding that such a nexus is so implausible that the complaint cannot be maintained. Therefore, the district court erred in dismissing the complaint as to Upper Darby and Miller, Kerns and Ward in their official capacities. C. On the other hand, we do not believe that the action can be maintained against defendants on the basis of the broad allegation that they failed to adequately train officers in searching and supervision of detainees. See App. at 9. In Chinchello v. Fenton, 805 F.2d 126, 134 (3d Cir.1986), we held that allegations regarding a supervisory official’s “failure to train, supervise, and discipline” prison officials would not support a claim that the supervisory official’s conduct “violate[d] a clearly established constitutional duty.” See also Krisko v. Oswald, 655 F.Supp. 147, 152 (E.D.Pa.1987) (failure to train police insufficient to support municipal liability for constitutional violation). We do not suggest that there are no circumstances in which a deficient training policy can form the basis for municipal liability under section 1983. See, e.g., Voutour v. Vitale, 761 F.2d 812, 819-22 (1st Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986); Rymer v. Davis, 754 F.2d 198, 200-01 (6th Cir.), vacated and remanded in light of City of Oklahoma City v. Tuttle sub nom. City of Shepardsville, Kentucky v. Rymer, 473 U.S. 901, 105 S.Ct. 3518, 87 L.Ed.2d 646 reaff'd after remand, 775 F.2d 756 (6th Cir.1985). Moreover, even the four Justices of the Supreme Court who voted not to dismiss the writ of certiorari in a case where liability of a city had been sustained on the basis of a grossly negligent policy of inadequate training agreed that section 1983 liability against a municipality can be premised on failures to train amounting to “reckless disregard for or deliberate indifference to” individuals’ rights. City of Springfield, Massachusetts v. Kibbe, — U.S. -, 107 S.Ct. 1114, 1121, 94 L.Ed.2d 293 (1987) (O’Connor, J., joined by Rehnquist, C.J., White, J., and Powell, J., dissenting from dismissal of writ of certiorari — 673 — to Kibbe v. City of Springfield, 111 F.2d 801 (1st Cir.1985)). However, in Chinchello we suggested that at a minimum such liability could be imposed “only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval to the offending subordinate.” Id. at 133 (footnote omitted). In this case, we distinguish between the allegations that in essence claim that defendants had a custom of inadequately monitoring the jails for potential suicides, which we have sustained at least at this stage of the proceeding, and allegations that they failed to train police officers-matrons, like Miller, in proper search techniques. There is nothing alleged other than the isolated instance of Miller’s failure to detect Stierheim’s handgun in frisking the scantily clothed Stierheim to support maintaining this action on the basis of inadequate training.8 Therefore, on remand the district court should strike these allegations unless plaintiff can amend the complaint to satisfy the two-pronged test enunciated in Chinchello. D. Finally, the complaint contains no allegations that either Kerns or Ward was personally involved in any activity related to Stierheim’s death. For this reason, Col-burn’s claims against Kerns and Ward in their individual capacities were properly dismissed. VI. The Dissenting Opinion It is unproductive to respond to each of the dissent’s mischaracterizations of the majority’s opinion and legal precedent.9 We comment only on the three principal points made by Judge Garth: his stringent fact pleading standard; his exclusion of suicide as a basis for a due process violation; and his insistence that intent is a prerequisite for a due process violation. First, the dissent’s extreme view of this court’s fact pleading standard may be read as suggesting that it can be used as a vehicle by which we can rid ourselves of litigation alleging civil rights violations. However, our “modicum of factual specificity” standard for evaluating section 1983 complaints was not designed to subvert the Congressional purpose behind section 1983. That statute “was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well.” Owen v. City of Independence, 445 U.S. 622, 651, 100 S.Ct. 1398, 1416, 63 L.Ed.2d 673 (1980). No precedent authorizes a federal court to dismiss this potentially meritorious claim of a constitutional violation when the relevant facts were known only to Stierheim, who is dead, and defendants, who have declined to provide the available information. As we noted in Part III supra, the claim is not a frivolous one, and defendants, who have vastly superior access than the plaintiff to the relevant facts, — 674 — should be well able to file an answer to the complaint, when amended. The dissent posits that because Stierheim was dressed in a halter top and denim shorts, the gun was concealed in a body cavity discoverable only by a “constitutionally suspect” intrusive search. Dissenting at 683 n. 14. The undeveloped record discloses no factual basis for the dissent’s hypothesis. All the majority holds is that plaintiff is entitled to proceed beyond a Rule 12(b)(6) dismissal to discovery.10 Second, the dissent believes that there is no room in the broad protection provided by the Fourteenth Amendment for claims based on suicide unless the police assisted or encouraged the act. Dissent at 682. Thus, in Judge Garth’s view, prison officials may sit idly by watching as a vulnerable inmate takes her own life as long as they neither supply the gun nor egg her on. In Judge Garth’s narrow view of the Fourteenth Amendment no disregard, no matter how callous, can amount to a Fourteenth Amendment violation. He would allow only a state tort negligence action. Dissent at 681 n. 11. Fortunately, neither this court nor the Supreme Court has accepted that position. Instead, the applicable precedent recognizes that custodial authorities have an obligation to protect those placed within their custody and, under certain circumstances, that obligation includes protection from self-inflicted wounds. Finally, Judge Garth, apparently eager to rush in where the Supreme Court has, as yet, declined to tread, would have us “fill in the undefined area that remains” in determining what constitutes a violation of the Fourteenth Amendment due process guarantee. Dissent op. at 677. We prefer to adhere to the established principle that courts should not dash headlong into constitutional pronouncements. In his dissent, Judge Garth, who continuously merges the Eighth and the Fourteenth Amendment standards, argues that the Supreme Court opinions in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed. 2d 677 (1986), adopted the position that conduct “tantamount to intent” is one of the requisite elements of a viable cause of action alleging a violation of the Due Process Clause. Dissent op. at 676 n. 2.11 The dissent’s wish may be father to the thought. There is no clearer evidence that there was no such holding than the Court’s own statement that it “recently reserved the general question ‘whether something less than intentional conduct, such as recklessness or “gross negligence” is enough to trigger the protections of the Due Process Clause.’ ” Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) (quoting Daniels v. Williams, 106 S.Ct. at 667 n. 3) (emphasis added). In Daniels, the Court recognized that conduct covered by section 1983 would undoubtedly fall between the poles of negligence and intentional conduct when it stated that, “[t]he difference between one end of the spectrum negligence — and the other — intent—is abundantly clear.” Daniels v. Williams, 106 S.Ct. at 667. The dissent argues that litigants and district court judges need to be provided with a reliable standard for section 1983 claims. Dissent op. at 684 n. 17. Notably, the Supreme Court, when faced with an analogous argument, responded by “declinpng] to trivialize the due process clause in an effort to simplify constitutional litigation.” Daniels, 474 U.S. at 335, 106 S.Ct. at 667. Judge Garth’s emotional call for an in banc hearing overlooks that just three years ago this court, in banc, reviewed the applicable principles and gave some guidance (which Judge Garth now criticizes as dictum). However, we decided to “eschew prescribing a comprehensive litmus test to deter — 675 — mine which actions are or are not within § 1983, particularly since such a test has so far eluded the Supreme Court.” Davidson v. O’Lone, 752 F.2d at 827. Although we may be required to limn the boundaries more specifically when the issue is before us, this is a particularly inappropriate case in which to enunciate the dictum proffered by the dissent. After discovery, the facts might show neither gross negligence nor reckless disregard of Stierheim’s constitutional rights or both. On the other hand, discovery might disclose even such “obduracy and wantonness”, see Whitley, 475 U.S. at 319, 106 S.Ct. at 1084, as would fit within Judge Garth’s restrictive view of due process. Unless this matter proceeds beyond a dismissal, the facts will not be brought to light. VII. Conclusion For the reasons set forth above, we will affirm that part of the district court’s order dismissing the complaint as to Kerns and Ward in their individual capacities, we will reverse the district court’s order dismissing the complaint against the other defendants and we will remand for further proceedings in accordance with this opinion. Footnotes [1] The complaint also alleges a state law claim for wrongful death and a state law survival action. The dismissal of the complaint as a whole in federal court was without prejudice to plaintiffs state law claims. Only the dismissal of the section 1983 claim is before us on appeal. [2] The court explained that the stipulation "crossed paths with the motion." App. at 109. [3] Two judges of the six judges who joined the in banc opinion in Davidson did not join the reference to "gross negligence". See 752 F.2d at 828 n. 8. However, two of the dissenting judges, Judge Gibbons, now Chief Judge, and Judge Higginbotham, would have held that negligence alone stated a claim under section 1983. It thus follows that six of the nine judges who considered that case in banc subscribed to the "gross negligence" standard. It is unreasonable to suggest, as the dissent does, that we cannot infer the adherence of Chief Judge Gibbons and Judge Higginbotham to the in banc court’s majority view expressed in Davidson that conduct that is grossly negligent or recklessly indifferent is covered by section 1983 just because the dissenters’ position that would have gone farther was rejected by the Supreme Court. See Dissenting op. at 679 n. 7. [4] One approach has been suggested in Doe v. New York City Department of Social Services, 649 F.2d 134, 143 (2d Cir.1981), where the court said: On repeated occasions this court has drawn attention to the close affinity of the concepts, gross negligence and deliberate indifference---- One is a type of conduct, and the other a state of mind. Nevertheless, the two are closely associated, such that gross negligent conduct creates a strong presumption of deliberate indifference. Id. at 143 (citations and footnote omitted). We take no position on this approach at this time. [5] In considering the sufficiency of the allegations, we do not consider hypothetical possibilities alluded to by plaintiff’s counsel that Stier-heim may have been shot by another inmate or a guard, or his statement that a subsequent investigation suggested that she had been beaten. Counsel concedes that until given discovery into the circumstances of Stierheim’s death, he is unable to make any such allegation in an amended complaint. [6] Judge Becker agrees, given the applicable pleading standard, see part III, supra, that the panel’s decision does not turn on whether Col-burn can survive a motion for summary judgment or a directed verdict. Judge Becker notes in his view that, unless gross negligence means something less than "deliberate indifference” or "reckless disregard,” a question left open in Davidson v. O'Lone, 752 F.2d 817, 828 (3d Cir.1984), Colburn cannot survive a motion for summary judgment or directed verdict without developing, by way of discovery (or proof at trial), facts beyond those set forth in her proposed amended complaint, see pp. 670-71, supra. [7] We treat Upper Darby Township and named defendant Upper Darby Police Department as one entity. Appellees contend the Police Department is not a "person” subject to liability under section 1983. If plaintiff persists in her suit against that entity, the district court will have to consider whether the Upper Darby Police Department is an appropriate defendant. [8] The allegation of the two prior suicides does not satisfy the requirement that there have been "a prior pattern of similar incidents” in the absence of any allegation that these suicides were tied to inadequate searches. [9] For example, compare the majority’s statement: "A detainee is entitled under the Due Process Clause of the Fourteenth Amendment to, at a minimum, no less protection for personal security than that afforded convicted prisoners under the Fourteenth Amendment and no less a level of medical care than that required for convicted prisoners by the Eighth Amendment,” Majority op. at 668 (emphasis added), with the dissent’s alteration, i.e., "the majority understandably equates the protections afforded prisoners under the Eighth Amendment with the protections afforded detainees under the Due Process Clause of the Fourteenth Amendment.” Dissent op. at 676-77 (emphasis added). Also, there is absolutely nothing in this court's in banc opinion in Davidson v. O'Lone, 752 F.2d 817, to support the dissent’s statement that that decision "recognized the requirement that some level of intent be pleaded and proved in a § 1983 due process claim.” Dissent op. at 676 n. 3. The statement is particularly questionable given the authorship of the majority’s opinion there and here. [10] Again, compare the majority’s opinion. Majority op. at 670-71, with the dissent's mischarac-terization of it at Dissent op. at 683-85. [11] We note the inconsistency in Judge Garth’s opinion stating, on the one hand, that the Supreme Court has held intent is a required element of a due process claim, see, e.g., Dissent op. at 676 n. 2, and, on the other hand, that we should step in because the Supreme Court has given no "definitive guidance”, id. at 677.