Schultz v. Sillman

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0688n.06

Filed: August 10, 2005

No. 04-1507

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES T. SCHULTZ, Personal )

Representative of the Estate of James A.

)

Schultz, Deceased,

)

)

Plaintiff-Appellee,

)

) ON APPEAL FROM THE UNITED

v.

STATES DISTRICT COURT FOR

)

THE EASTERN DISTRICT OF

) MICHIGAN

ROBERT SILLMAN,

)

)

Defendant-Appellant.

)

Before: COLE and SUTTON, Circuit Judges; BARZILAY, Judge.*

BARZILAY, Judge. This action, filed under 42 U.S.C. § 1983, arises from the suicide

of James A. Schultz (“Schultz,” “the decedent”) while he was incarcerated at the State Prison of

Southern Michigan (“SMI”), Jackson, Michigan. Plaintiff-Appellee (“Plaintiff”) alleged that

certain corrections officers violated Schultz’s Eighth Amendment right to be free from cruel and

*

The Honorable Judith M. Barzilay, Judge of the United States Court of International

Trade, sitting by designation.

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unusual punishment. Appellant, Officer Robert Sillman (“Defendant”, “Sillman”), and

Defendant Sergeant Probst, another corrections officer at the facility, asserted the defense of

qualified immunity and moved for summary judgment. The district court dismissed the claims

against Sergeant Probst, but denied summary judgment to Sillman, finding that there was an

issue of material fact as to his liability. In this appeal, Sillman challenges the district court’s

denial of his motion for summary judgment. As explained below, we affirm the lower court’s

denial of summary judgment in this case.

I. BACKGROUND AND PROCEDURAL HISTORY

In its order of March 23, 2004, the district court fully presented the facts as it discussed

the standards governing review of a motion for summary judgment. Here, we recite those facts

relevant to the pending appeal. Schultz committed suicide some time between 2:00 a.m. and

2:18 a.m. on December 17, 2001, while he was held on the base level of SMI’s administrative

segregation unit (“Ad. Seg. unit”).1 On that date, Sillman worked as an officer on duty on the

base level during the third shift, from 10 p.m. to 2 a.m. As an officer on duty, Sillman was

responsible for making “rounds” every half hour. JA 337. Rounds involved approaching each

cell and ensuring that every inmate was present and breathing. JA 337. He was also responsible

for making two counts during his shift, which involved a more extensive verification of the

status of inmates housed on the base level. JA 337. Sillman testified that it was his duty to

1

Schultz was assigned to Ad. Seg. for “protective segregation” because he had been

threatened by another prisoner. JA 54, 391.

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identify and prevent suicide attempts by the prisoners during his shift, and that he was trained to

respond to suicidal gestures. JA 335, 337.

The record contains two versions of what transpired on the night of Schultz’s death.

Sillman generally testified that Schultz did not exhibit any suicidal behavior. Sillman

remembered that during his first round, at 10 p.m., Schultz complained to him about his pain

from a recurring kidney problem, and Sillman told him to take his medication. JA 108. Upon

eight subsequent rounds, between 10:30 a.m. and 2:00 a.m., Sillman found that Schultz was

either lying down quietly or doing something that was not “out of the ordinary.” JA 108-111.

Sillman did recall hearing a sound of someone kicking a cell door some time before 2:00 a.m.

JA 106. The sound came from the south end of the level where Schultz’s cell was located. JA

106. Sillman could not remember whether it was Schultz who kicked the cell door. JA 106.

When Sillman went to investigate, the kicking ceased. JA 107. At 2:18 a.m. another officer

discovered Schultz hanging by a bed sheet from the bars of his cell’s window. The record

includes a suicide note that was found in the decedent’s cell. Schultz wrote that he was taking

his life because he could no longer endure the pain caused by his kidney stone. JA 581-584.

Sillman’s testimony is contradicted by the testimony of Keith Thompson, an inmate

whose cell was two cells away from Schultz’s cell on the night in question. Thompson testified

that beginning some time between 9 p.m. and 10 p.m., Schultz made repeated complaints about

pain, and that the officer on duty, fitting Sillman’s description, spoke twice to Schultz. JA 196-

198, 205. Schultz made requests to go to the hospital, saying that “he was busting” and that he

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needed emergency medical attention. JA 198. Thompson described that Schultz sounded as if

he was crying, and that he was “crying for attention.” JA 197-198. The officer on duty taunted

Schultz, saying something akin to “quit playing . . . – you always are playing. You’re not going

nowhere tonight,” and “you’re faking . . . . We’re not taking your ass nowhere.” JA 203, 205.

Schultz was physically agitated, kicking his cell door and yelling, at least till 12:30 a.m., when

Thompson fell asleep. JA 206. When Thompson woke up around 2:00 a.m., he heard a

commotion as if the officer on duty was “catching up on the rounds.” JA 199-200.

As part of its case, Plaintiff presented evidence of Shultz’s suicidal tendencies and

evidence suggesting that Sillman could have been aware of those tendencies. Schultz had a

recorded history of two suicide attempts and a prior incident where he faked suicide in order to

obtain medical treatment for his kidney stone. During his first attempted suicide, on July 10,

2001, Schultz hanged himself with a bed sheet while he was incarcerated in the Ad. Seg. unit.

JA 146-157. After this attempt, Schultz was held on suicide watch until July 12, 2001, when he

was released by a staff psychologist. JA 158-164, 514-521. Schultz again attempted to commit

suicide on September 23, 2001. This attempt also occurred while he was housed in the Ad. Seg.

unit. Schultz swallowed a handful of pills and required emergency medical attention. After he

was treated at a hospital, he was returned to SMI and again placed on suicide watch on the base

level of the Ad. Seg. unit, where he stayed till September 27, 2001. JA 165-167, 168-182, 522-

523. The prison records establish that while Schultz was on suicide watch, Sillman worked two

shifts: one shift as a roving officer on September 23, 2001 and another shift on the first level on

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September 26, 2001. JA 184, 188. As a roving officer, he had to provide assistance to all floors

of the unit as he was needed. JA 372.

Finally, Schultz’s feigned suicide attempt also took place while he was incarcerated in

the Ad. Seg. unit and was motivated by his kidney pain. The prison records show that Schultz

began complaining about his kidney stone pain on November 28, 2001, the day before the

incident, and that he was given emergency treatment. JA 559-561, 564-565. His complaints

continued on November 29, 2001, and a sergeant in charge was told by the prison’s Health

Services to bring Schultz to the emergency room if his pain persisted. JA 562. At that time,

Schultz told the sergeant that he had taken 89 pills “in order to die.” JA 565. Schultz seemed to

have feigned committing suicide in order get prompt medical attention. JA at 563. Schultz was

not placed on suicide watch following this incident.

In his testimony, Sillman acknowledged that he heard about Schultz’s feigned suicide

attempt, specifically that he heard that he “faked taking pills.” JA 113. The prison records show

that Sillman was working a shift the night Schultz feigned suicide and knew of the incident from

others. JA 113, 564. Sillman also admitted that he heard about Schultz’s kidney stone

complaints. JA 114. Finally, he recalled that Schultz was held in an observation cell at some

point in the three months preceding Schultz’s death, acknowledging that Schultz may have been

on suicide watch. JA 100, 102.

On summary judgment, the district court found that a reasonable jury could conclude that

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Defendant Sillman had subjective knowledge of a strong likelihood that Schultz would harm

himself, and that he recklessly disregarded that risk on December 17, 2001. By viewing the

evidence in the light most favorable to the plaintiff, and making all reasonable inferences in his

favor, the district court determined that Sillman (1) knew of the decedent’s suicidal tendencies,

(2) knew that those tendencies were provoked by the decedent’s painful kidney condition, and

(3) perceived that the decedent presented a substantial suicide risk on the night in question, and

yet disregarded that risk.

II. DISCUSSION

A. Appellate Jurisdiction and Qualified Immunity

A district court’s denial of qualified immunity is an appealable final decision under 28

U.S.C. § 1291 “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This

Court evaluates qualified immunity using a tripartite inquiry:

First, we determine whether the facts viewed in the light most favorable to the

plaintiff[] show that a constitutional violation has occurred. Second, we

determine whether the right that was violated was a clearly established right of

which a reasonable person would have known. Finally, we determine whether the

plaintiff has alleged sufficient facts, and supported the allegations by sufficient

evidence, to indicate that what the official allegedly did was objectively

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unreasonable in light of the clearly established constitutional right[].

Toms v. Taft, 338 F.3d 519, 524 (6th Cir. 2003) (internal citations omitted).

Plaintiff claims that Sillman violated Schultz’s Eighth Amendment right by being

deliberately indifferent to Schultz’s serious medical needs. Appellee’s Br. at 20-21. In order to

sustain a § 1983 claim against an officer for failure to provide medical care, a plaintiff must

show that (1) the medical need at issue was objectively “sufficiently serious,” and (2) the

defendant had subjective knowledge of the serious medical need from which to infer substantial

risk of harm to the prisoner and deliberately disregarded that risk. Comstock v. McCrary, 273

F.3d 693, 703 (6th Cir. 2001).

The district court denied Sillman’s motion for summary judgment on the qualified

immunity defense finding a genuine issue of material fact as to Schultz’s Eighth Amendment

claim against Sillman. On appeal, Sillman contends that Plaintiff failed to show that Sillman

violated Schultz’s Eighth Amendment right and challenges some of the district court’s inferences

from the evidence presented by Plaintiff. While Sillman entangles the legal basis of his appeal

with factual disputes about the kind of inferences that the lower court found a reasonable jury

could draw from the evidence, Sillman challenges the district court’s conclusions that the facts

presented by the plaintiff amounted to a violation of the Eighth Amendment right and whether

that right was clearly established.

In this appeal, the court does not consider whether Plaintiff’s evidence, as construed by

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the defendant, is sufficient to present a genuine issue for trial as to Sillman’s subjective

knowledge. See Johnson v. Jones, 515 U.S. 304, 314 (1995) (denials of qualified immunity may

not be reviewed on interlocutory appeal insofar as “a defendant simply wants to appeal a district

court’s determination that the evidence is sufficient to permit a particular finding of fact after

trial.”). “[R]egardless of the district court’s reasons for denying qualified immunity, we may

exercise jurisdiction over the . . . appeal to the extent it raises questions of law.” Williams v.

Mehra, 186 F.3d 685, 689-90 (6th Cir. 1999) (en banc) (quoting Dickerson v. McClellan, 101

F.3d 1151, 1157 (6th Cir. 1996)); see Farm Labor Org. Comm. v. Ohio State Highway Patrol,

308 F.3d 523, 531 n.3 (6th Cir. 2002) (retaining jurisdiction despite the parties’ disagreement on

the facts to decide the legal issue of qualified immunity based on the plaintiff’s version of the

facts). The court’s review in this case is limited to the question of whether “all of the conduct

which the District Court deemed sufficiently supported for purposes of summary judgment met

the Harlow standard of ‘objective legal reasonableness.’” Behrens v. Pelletier, 516 U.S. 299,

313 (1996) (quoting Harlow, 457 U.S. at 819 (“The public interest in deterrence of unlawful

conduct and in compensation of victims remains protected by a test that focuses on the objective

legal reasonableness of an official’s acts.”)). Thus we review the purely legal issues of whether,

based on the facts interpreted most favorably to the plaintiff, Sillman’s conduct constituted, as a

matter of law, deliberate indifference to a substantial risk of suicide in violation of the Eighth

Amendment right against cruel and unusual punishment and whether that right was clearly

established.

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B. The Eighth Amendment Violation

Plaintiff contends that Sillman violated Schultz’s Eighth Amendment rights by being

deliberately indifferent to Schultz’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97,

104-05 (1976). Deliberate indifference to a prisoner’s serious medical needs is established when

(1) the medical need is objectively “sufficiently serious”; and (2) the official “subjectively

perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the

inference, and that he then disregarded that risk.” Comstock, 273 F.3d at 703. The Supreme

Court held that the requisite culpability is at least recklessness, which requires a subjective

showing that the defendant was aware of the risk of harm. Farmer v. Brennan, 511 U.S. 825,

836 (1994).

In order to satisfy the objective component, Plaintiff must allege facts establishing that

the medical need at issue was sufficiently serious. See Estelle, 429 U.S. at 104. Plaintiff claims

that Schultz’s suicidal state was a serious medical need that was deliberately disregarded. See

Appellee’s Br. at 22. While recognizing that suicidal tendencies constitute a serious medical

need, Sillman instead argues that the objective prong is not met because Schultz only exhibited

behavior related to his kidney stone pain – the medical condition that did not correlate with the

cause of the decedent’s death, the suicide. Sillman thus challenges the plaintiff’s theory of

liability claiming that the evidence shows that Sillman would have been deliberately indifferent

only to Schultz’s kidney condition, and that because Schultz’s death did not result from the

kidney stone, Sillman was not liable. See Appellant Br. at 32-33. However, Plaintiff charged

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Sillman with ignoring Schultz’s behavior of complaining, crying, and other potential suicidal

gestures on the night of his death, knowing about Schultz’s past suicidal tendencies. Appellee

Br. at 24-26; Schultz v. Probst, No. 02-74088, at 16 (E.D. Mich. Mar. 23, 2004).

It has been well settled in this circuit that an inmate’s “psychological needs may

constitute serious medical needs, especially when they result in suicidal tendencies.” Comstock,

273 F.3d at 703 (quoting Horn v. Madison County Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994)).

Although there is no general right to “be screened correctly for suicidal tendencies,” once a

prison official has been “alerted to a prisoner’s serious medical needs,” including his

psychological needs, the official has an obligation to offer medical care. Id. at 702 (denying

summary judgment to a prison psychologist who initially had the prisoner under suicide watch

but released him the next day when he said he was no longer suicidal, where expert testimony

indicated that the psychologist’s examination was “grossly substandard.” Id. at 709).

Under the subjective prong, Plaintiff must prove that the official was deliberately

indifferent to the prisoner’s serious medical needs. Plaintiff can establish deliberate indifference

by showing that the official subjectively perceived facts from which to infer substantial risk of

suicide to the prisoner, that he actually drew that inference and then disregarded the risk of harm.

Farmer, 511 U.S. at 837. Because suicide is a difficult event to predict, this Court inquires

“‘whether the decedent showed a strong likelihood that he would attempt to take his own life in

such a manner that failure to take adequate precautions amounted to deliberate indifference to

the decedent’s serious medical needs.’” Gray v. City of Detroit, 399 F.3d 612, 616 (6th Cir.

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2005) (quoting Barber v. City of Salem, 953 F.2d 232, 239-40 (6th Cir. 1992)). Plaintiff need

not prove that Sillman acted “for the very purpose of causing harm or with knowledge that harm

will result,” Farmer, 511 U.S. at 835, or that he had an “express intent to inflict unnecessary

pain.” Scicluna v. Wells, 345 F.3d 441, 445 (6th Cir. 2003) (internal citation omitted).

Importantly, a prison official may “not escape liability if the evidence show[s] that he merely

refused to verify underlying facts that he strongly suspected to be true, or declined to confirm

inferences of risk that he strongly suspected to exist.” Farmer, 511 U.S. at 843 n.8.

While the legal standard for deliberate indifference is a question of law, a finding of

deliberate indifference in a particular case is a mixed question of law and fact. See Williams,

186 F.3d at 690. Because the district court found that there is a genuine issue of material fact as

to Sillman’s actual knowledge, the court assumes the facts and inferences as Plaintiff alleged

them. The court’s task is to review whether, viewing the evidence in the light most favorable to

the plaintiff, the district court’s legal determination that Sillman could have acted with deliberate

indifference was correct.

Plaintiff alleges that Sillman ignored Schultz’s behavior of crying and other potential

suicidal gestures, while knowing that Schultz had past suicidal tendencies. Plaintiff argues that a

reasonable jury could infer that Sillman knew that Schultz had been on suicide watch based on

the following evidence: (1) Sillman worked two shifts while Schultz was on suicide watch on the

base level of the Ad. Seg. unit – one shift as a roving officer and the other shift as a guard on the

first level; (2) Sillman’s testimony recalling that Schultz was held in an observation cell about

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three months prior to the night in question, acknowledging that Schultz may have been on

suicide watch. JA 184, 188, 100, 102. Plaintiff also cites Sillman’s testimony that he knew that

Schultz feigned a suicide attempt to get medical attention at the end of November 2001, less than

a month prior to Schultz’s actual suicide on December 17, 2001. JA 113, 342, 564. Finally,

Plaintiff refers to Sillman’s acknowledgment that he knew about Schultz’s recurring kidney

stone pain. JA 114. Although Sillman’s knowledge about the history of Schultz’s suicidal

tendencies may have been incomplete, this evidence pieced together and viewed in the light most

favorable to Plaintiff supports the claim that Sillman possessed knowledge that would put a

reasonable officer on notice that the inmate had suicidal propensities. Schultz, No. 02-74088, at

17.

As the district court concluded and we agree, this knowledge coupled with Schultz’s

behavior on the night in question suggests that the decedent showed a strong likelihood that he

would take his own life. In order to properly view the evidence in the light most favorable to the

plaintiff, the court must credit inmate Thompson’s testimony. Thompson’s testimony supports

Plaintiff’s claim that on the night of December 17, 2001, during Sillman’s shift, Schultz

complained about his kidney pain, made requests to go to the hospital, and “cried for attention.”

JA 197-198. While no evidence directly shows that Schultz’s behavior was self-injurious,

Thompson’s testimony establishes that Schultz was despondent and loudly cried out for

attention. Defendant argues that in order for a corrections officer to be liable under the Eighth

Amendment for deliberate indifference, the officer must have actual knowledge that there is a

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strong likelihood of suicide. Appellant Br. at 33. Sillman argues that the “substantial risk” that

Sillman could have inferred from Schultz’s complaints on the night of December 17 was merely

the risk that he could suffer complications from his kidney pain and not that he might have killed

himself. Appellant Br. at 33. But, as the lower court concluded, a reasonable jury could find

that Sillman knew that Schultz had exhibited suicidal tendencies “in conjunction with pain

associated with his kidney stone.” Schultz, No. 02-74088, at 20. Such a finding would

strengthen the foreseeability of a suicide when the inmate is desperate and agitated because of

kidney stone pain.

Despite the inherent unpredictability of human behavior, including suicide, there are

physical and verbal gestures that, considering the person exhibiting them in a particular context,

objectively indicate suicidal behavior. See, e.g., Gray, 399 F.3d at 616. In Gray, a pre-trial

detainee began talking loudly and destroying items in his holding cell, including the sink, toilet,

and phone. 399 F.3d at 614. The detainee was moved temporarily to a “suicide cell” for a day

for the sole purpose of preventing further destruction of city property. Id. The inmate did not

verbally express suicidal intent, but he began having chest pains and the prison officials moved

him to a hospital cell. Id. at 614-15. After a few hours, the inmate began banging on his cell

door and yelling. Id. at 615. Different guards at the hospital handcuffed the inmate in order to

restrain his agitated behavior. Id. Just an hour later, the inmate committed suicide using a

hospital gown to hang himself. Id. The Court held that the inmate did not demonstrate a “strong

likelihood” of committing suicide for the hospital guards to perceive, noting that the only way

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that an officer could have concluded that the inmate was a suicide risk was to have the collective

knowledge of every other officer about the decedent’s suicidal gestures. Id. at 616 (affirming the

district court’s grant of summary judgment in favor of the defendants based on the qualified

immunity defense).

Sillman argues that based on Gray, he did not have the requisite knowledge that the

decedent was suicidal. However, Gray is distinguishable from this case because the district

court did not impute other officials’ knowledge of Schultz’ past suicide attempts to Sillman;

rather, the district court found that there was evidence in the record that Sillman himself was

aware of the past suicide attempts, one of which was feigned. Schultz’s repeated complaints,

yelling, and kicking of his cell door, if believed, provided sufficient evidence that he was acting

in a suicidal manner in light of his prior history.

Sillman also argues that he did not have subjective knowledge of Schultz’s risk of

suicidal behavior because Sillman thought that Schultz was “faking.” As observed by the district

court, even Sillman’s comments to Schultz that he was “faking” could be interpreted to mean

that Sillman, knowing about the decedent’s prior fake suicide, believed that Schultz was feigning

another attempt, not just physical pain. Schultz, No. 02-74088, at 22. Additionally, Sillman’s

responsibility is not diminished if he declined to investigate the possibility of risk. See Farmer,

511 U.S. at 843 n.8. If, as Thompson testified, Schultz repeatedly cried for help, Sillman should

have investigated whether Schultz was contemplating suicide. The district court thought it

possible that a reasonable jury could determine that Sillman knew of at least one of Schultz’s

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past suicide attempts, that Sillman suspected that Schultz’s medical condition could trigger

suicide, and that Sillman ignored Schultz’s repeated pleas and cries for help. Schultz, No. 02-

74088, at 22. In that case, Plaintiff would have demonstrated that Sillman recklessly disregarded

a substantial risk that Schultz would commit suicide.2 While there is no factually apposite

precedent in this circuit, the Seventh Circuit has held that a jury is entitled to find deliberate

indifference if a prison official, who knew of an inmate’s suicidal tendencies, failed to provide

aid to that inmate in response to his erratic behavior. Hall v. Ryan, 957 F.2d 402, 405 (7th Cir.

1992); see also Rodgers v. Chapleau, No. 99-5276, 2000 U.S. App. LEXIS 30209, at **13-14

(6th Cir. Nov. 22, 2000) (unpublished per curiam opinion) (finding a triable issue of fact as to

the defendant’s liability where the decedent told the defendant guard that he was going to

commit suicide and the guard knew about the prisoner’s suicidal tendencies).

C. Whether the Right Was Clearly Established

Once we have established that Plaintiff’s version of the facts demonstrates a violation of

his constitutional right, the court next decides whether at the time of the suicide, in December

2

Jurors are permitted to consider circumstantial evidence and make inferences in

determining whether Sillman had the requisite level of culpability. See Farmer, 511 U.S. at 848

(a fact finder is entitled to rely on circumstantial evidence in determining whether the defendant,

in an Eighth Amendment case, had the requisite knowledge and that such knowledge can be

established “by reliance on any relevant evidence.”); Curry v. Scott, 249 F.3d 493, 507-08 (6th

Cir. 2001) (reversing summary judgment for the defendants, finding that pertinent evidence in

the guard’s employment record was sufficient for a jury to reasonably infer that the defendants

knew about a substantial risk of harm to the inmate from that guard, and that the issue of the

defendants’ knowledge should be left to the trier of fact.).

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2001, a reasonable officer would have known that his conduct was unlawful. Anderson v.

Creighton, 483 U.S. 635, 640 (1987). While this analysis is particularized and fact-specific, the

plaintiff does not have to show that the court has had a “fundamentally similar” or “materially

similar” case in order for a clearly established right to apply here. Saucier v. Katz, 533 U.S. 194,

205 (2001); Hope v. Pelzer, 536 U.S. 730, 741 (2002). The jurisprudence of the Sixth Circuit

has established a clear right of a prisoner not to have his psychological medical needs, in the

form of suicidal tendencies, treated with deliberate indifference. See, e.g., Comstock, 273 F.3d at

711; Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994); Danese v. Asman,

875 F.2d 1239, 1243-44 (6th Cir. 1989). Based on this case law, a reasonable officer would

know that recklessly disregarding a known risk of an inmate’s suicide would violate the inmate’s

Eighth Amendment right. Importantly, Sillman does not contest that there is clearly established

law that would hold a corrections officer liable for deliberate indifference to the risk of suicide if

an inmate demonstrates a strong likelihood that he would commit suicide. Therefore, if a jury

determines that Schultz demonstrated a strong likelihood of suicide, and that Sillman was aware

of this likelihood but chose to disregard it, Sillman’s actions would constitute a violation of

Schultz’s clearly established Eighth Amendment right to receive medical treatment for his

suicidal tendencies.

Accordingly, the denial of the summary judgment entered by the district court is

affirmed.

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