Anne Francisco v. Tom Villmer

United States Court of Appeals

For the Eighth Circuit

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No. 23-1036

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Anne Francisco, parents; Thurman Francisco, parents; Tyler Francisco, son of

Joshua Francisco, deceased

Plaintiffs - Appellants

v.

Corizon Health, Inc.; Corizon, LLC

Defendants

Tom Villmer; Gregory Rhodes; Kimberly Scallion; Jason England; Michael Griffin

Defendants - Appellees

Lisa Sanderson; Moses Ambilichu; Marion McIntyre; Rajendra Gupta; Does, 1-30

Defendants

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: November 14, 2023

Filed: July 26, 2024

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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.

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ERICKSON, Circuit Judge.

The parents and child of Joshua Francisco (the “Family”) appeal the district

court’s1 grant of summary judgment in favor of Thomas Villmer, Gregory Rhodes,

Kimberly Scallion, Jason England, and Michael Griffin in this 42 U.S.C. § 1983

action alleging a violation of the Eighth Amendment. We affirm.

I. BACKGROUND

On July 22, 2014, Joshua Francisco was placed at the Farmington Correctional

Center (“FCC”) to serve his sentence for aggravated stalking. At that time, Rhodes,

England, Griffin, and Scallion were correctional officers at FCC. Rhodes was a

Functional Unit Manager, England was a sergeant, Griffin was a Corrections Officer

I, and Scallion was a case manager. Villmer was the warden.

Francisco suffered from mental illness, and FCC provided him with treatment.

The Missouri Department of Corrections contracted with Corizon to provide

professional mental health services to Francisco and other inmates at FCC.

During Francisco’s 93 days at FCC, correctional officers placed him on

suicide watch four times when his statements or actions indicated that he might be a

danger to himself. Corizon mental health professionals performed an evaluation of

Francisco before they determined he was well enough to leave suicide watch each

time. When Francisco refused to take the prescribed medication for his

schizoaffective disorder, bipolar type, mental health professionals held an

involuntary medication hearing to ensure Francisco took his medication.

1

The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri.

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At Francisco’s request, on October 2, 2014, FCC placed him in protective

custody. On October 8, 2014, the Admissions/Discharge committee determined

Francisco was eligible for the Social Rehabilitation Unit (“SRU”), which would

provide him with more frequent contact with mental health professionals. When the

time came for Francisco to move to SRU, he refused.

On October 21, 2014, a mental health professional performed rounds in the

administrative segregation unit. Francisco denied having any mental health

concerns or complaints, and the doctor observed him to be “functioning adequately.”

On the morning of October 22, 2014, Francisco’s cellmate told England that

Francisco was suicidal and that there was a noose in their cell. Francisco repeatedly

told England and Griffin that he was not suicidal. England ordered a cell search and

a strip search of Francisco and his cellmate. Neither search produced a noose.

Scallion separately interviewed Francisco on October 22, and Francisco also

told her that he was not suicidal and had no intention of hurting himself. Despite

Francisco’s repeated statements to correctional officers that he was not suicidal, a

correctional officer found Francisco hanging from a light fixture at approximately

9:20 that night.

II. DISCUSSION

Our review of the district court’s grant of summary judgment is de novo.

Corwin v. City of Independence, 829 F.3d 695, 698 (8th Cir. 2016). “Whether a

given set of facts entitles the official to summary judgment on qualified immunity

grounds is a question of law. But if there is a genuine dispute concerning predicate

facts material to the qualified immunity issue, there can be no summary judgment.”

Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003) (quoting Greiner v. City of

Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994)).

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A. Deliberate Indifference

A government official is protected by qualified immunity “as long as their

actions could reasonably have been thought consistent with the rights they are

alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). To

defeat the protection of qualified immunity, the plaintiff must (1) assert a violation

of a constitutional or statutory right, (2) that was “clearly established” at the time of

the violation, and (3) that a “reasonable official would have known that the alleged

action indeed violated that right.” Liebe v. Norton, 157 F.3d 574, 577 (8th Cir.

1998).

The Family have met the first two steps of this inquiry. It is clearly established

that the Eighth Amendment’s prohibition on cruel and unusual punishment applies

to protecting prisoners from deliberate indifference to serious medical needs and that

a risk of suicide by an inmate is a serious medical need. Gregoire v. Class, 236 F.3d

413, 417 (8th Cir. 2000). To overcome qualified immunity then, the Family must

present a genuine dispute about a predicate material fact regarding the third step of

the inquiry.

Whether a reasonable official would have known that his actions violated an

established right involves both an objective and subjective component. Liebe, 157

F.3d at 577. The objective component concerns whether a serious deprivation

occurred. Id. The subjective component examines the official’s state of mind to

determine whether he acted with deliberate indifference. Id.

Deliberate indifference is more than negligence or gross negligence. See

Gibson v. Weber, 433 F.3d 642, 646 (8th Cir. 2006) (gross negligence is insufficient

to establish deliberate indifference); Lambert v. City of Dumas, 187 F.3d 931, 937

(8th Cir. 1999) (negligence is insufficient to establish deliberate indifference).

Deliberate indifference must rise to the level of criminal recklessness. Gregoire, 236

F.3d at 417. There must be a “strong likelihood” that the inmate would harm

himself. Lambert, 187 F.3d at 937 (citations omitted). Even when an official knows

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of the strong likelihood of risk of suicide by an inmate, the official is not liable for a

subsequent injury if he responded reasonably. Gregoire, 236 F.3d at 418.

The Family alleges that several correctional officers failed to follow the

FCC’s written suicide intervention policy, which they argue creates a dispute of

material fact. Regardless of whether any officer failed to follow a written policy,

the “[f]ailure to follow written procedures does not constitute per se deliberate

indifference.” Luckert v. Dodge County, 684 F.3d 808, 819 (8th Cir. 2012). The

relevant inquiry is whether the official’s acts violated Francisco’s constitutional

rights. We turn now to address each official’s conduct.

1. England

On October 22, correctional officer Joseph Gooch notified England that

Francisco’s cellmate claimed Francisco was suicidal and had a noose. England did

not ignore the allegation. Instead, England immediately performed an investigation.

England interviewed Francisco, who repeatedly told England that he was not

suicidal. This was England’s first and only interaction with Francisco, and England

had no knowledge of Francisco’s suicide watch history at that time.

In an attempt to create a dispute of material fact against England, the Family

claims that Darrell Wagganer wrote in his suicide investigation report that England

did not talk to Francisco. A review of the report reveals the opposite. Wagganer

noted multiple times that England spoke to Francisco and that Francisco repeatedly

told England that he was not suicidal. Wagganer also wrote that he interviewed

Gooch, who was a witness to England’s conversation with Francisco, and he

corroborated England’s statements that Francisco repeatedly stated he was not

suicidal. Therefore, it is undisputed that England talked to Francisco who told

England he was not suicidal.

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In addition to Francisco’s statements to England, it is undisputed that England

ordered two searches, and neither produced a noose. Cellmate claims about the

condition of a fellow inmate are insufficient to put guards on actual notice of an

excessive risk to an inmate’s safety. Yellow Horse v. Pennington County, 225 F.3d

923, 928 (8th Cir. 2000). In this case, the cellmate’s statements were especially

unreliable when it turned out his claim about the presence of a noose was revealed

to be false following the searches. England’s actions do not rise to the level of

criminal recklessness required for deliberate indifference. Gregoire, 236 F.3d at

417.

2. Griffin

In response to Gooch’s radio call for England, Griffin arrived at Francisco’s

cell shortly after England started his investigation. Griffin heard the cellmate state

that Francisco was “driving me nuts and he’s suicidal.” From previous experience,

Griffin knew that inmates had falsely claimed that their cellmate was suicidal

because they didn’t like the cellmate and wanted a new one.

Griffin was aware that Francisco had previously been on suicide watch, but

he heard Francisco adamantly tell England at least twice on October 22 that he was

not suicidal. On October 21, the same day the mental health professional determined

Francisco was not at risk of self-harm, Francisco also told Griffin that he was not

suicidal. Because England was his superior, Griffin left the decision to him on

whether to remove Francisco from his cell. Griffin did not act with deliberate

indifference. See Yellow Horse, 225 F.3d at 928 (finding no disregard for an

excessive risk to the inmate’s health or safety).

3. Scallion

Scallion also interviewed Francisco on October 22. Francisco told her that he

was not suicidal. She was also aware that no noose was discovered during the cell

search and strip search.

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Scallion had a history with Francisco that included talking with him on a daily

basis, and she believed she had developed a rapport with him. In the past, when

Francisco felt suicidal, he told Scallion. Scallion knew Francisco’s suicide watch

history. However, an inmate’s previous suicidal tendencies do not require officials

to regard him as indefinitely suicidal. See id. (finding no deliberate indifference

when the inmate was placed on, and removed from, suicide watch twice in the span

of five days); see also Brabbit as Tr. for Bild v. Capra, 59 F.4th 349, 354 (8th Cir.

2023) (per curiam) (finding no deliberate indifference when officials removed

inmate from the highest level of supervision after inmate stated he was no longer

suicidal).

On October 21, Francisco’s cellmate told Scallion that “something bad was

going to happen.” Scallion talked to Francisco, and he stated that he was not

suicidal. A mental health professional also met with and evaluated Francisco on

October 21 and determined that Francisco was not suicidal.

Scallion observed a gradual improvement in Francisco’s behavior prior to his

death. Based on Scallion’s previous history with Francisco when he would admit he

was suicidal, and his statements to her on October 22 that he was not suicidal,

Scallion’s decision 2 to take no further action does not rise to the level of criminal

recklessness. Gregoire, 236 F.3d at 417.

4. Rhodes

Rhodes did not talk to Francisco on October 22. He talked to Scallion and

two other case managers about Francisco. In addition, Rhodes reviewed the video

recording of the searches involving Francisco, which corroborated the correctional

officers’ statements that there was no noose.

2

The Family cites Scallion’s testimony where, after she learned of Francisco’s

death, she wished she would have put him on suicide watch. Hindsight is not the

test for deliberate indifference. Gregoire, 236 F.3d at 419. Instead, we must evaluate

the official’s actions based upon the information she knew prior to the death. Id.

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While Rhodes knew that Francisco had previously been on suicide watch,

prior suicide watch history alone is insufficient to establish that Francisco was

suicidal on October 22. See Yellow Horse, 225 F.3d at 928 (finding no deliberate

indifference when the inmate was removed from suicide watch following

improvement in his mental condition). Rhodes knew that there was an allegation of

a noose in the cell and proof that the allegation was false. He relied on the

information provided by Scallion and two other case managers regarding Francisco’s

state of mind that day. Rhodes’ conduct fails to constitute deliberate indifference.

Id.

5. Villmer

Villmer was neither aware of the cellmate’s allegations nor participated in the

decisions made regarding Francisco on October 22. It is undisputed that he was not

aware of the events until after they occurred. Therefore, the district court properly

granted summary judgment to Villmer on the deliberate indifference claim.

B. Monell Liability

The remaining claim against Villmer is for an unconstitutional custom,

practice, or policy. Liability for an unconstitutional custom, practice, or policy under

42 U.S.C. § 1983 rests with the responsible governmental entity. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978); see also Corwin, 829 F.3d at 700

(discussing a municipality’s liability for a policy or custom). Because Villmer is not

a governmental entity, he is not a proper party for this claim.

The Family next conflates Monell liability with a claim for failure to properly

supervise or train. The Family did not allege a claim for failure to supervise or train

against Villmer in their Complaint, so this claim is not properly before us. See

Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir. 2012)

(stating that a court must refuse to consider claims not alleged in the complaint).

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Finally, the Family returns to the deliberate indifference standard to argue that

Villmer is liable for an unconstitutional custom or practice. In the context of a

custom or practice, there must be personal involvement by the supervisor in

“creating, applying, or interpreting a policy . . . .” Jackson v. Nixon, 747 F.3d 537,

543 (8th Cir. 2014).

The alleged custom or practice is that an inmate must say the “magic words”

that he is suicidal before he will be placed on suicide watch and no other words or

indicia of intent to harm oneself will suffice. It is undisputed that Villmer did not

make such a policy. It is also undisputed that Corizon, not Villmer, was responsible

for training FCC staff on suicide prevention. Because there was no personal

involvement by Villmer in the alleged “magic words” custom or practice, this claim

also fails. Id.

Finally, on the topic of a “magic words” policy, to the extent any correctional

facility has a policy or custom that requires placing an inmate on suicide watch only

when the inmate tells a guard he is suicidal, such a policy is unacceptable. If

correctional officials have sufficient other indicators from the inmate of intent to

harm oneself or credible witness testimony to that effect, then staff should attempt3

to protect the inmate from himself. For example, at one point, Francisco used a piece

of glass to make superficial cuts on his skin, and a correctional officer placed him

on suicide watch in the absence of Francisco stating he was going to harm himself.

A correctional facility’s policy should contain language that requires action under

similar circumstances.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed.

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3

“Jails are neither required to provide suicide-proof institutions, nor must they

ensure against suicide ever happening.” Brabbit as Tr. for Bild, 59 F.4th at 353

(citations omitted).

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