Cathy Minix v. Frank Canarecci

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-2001 & 09-2817

C ATHY M INIX,

Plaintiff-Appellant,

v.

F RANK C ANARECCI, JR., et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 05 C 144—Robert L. Miller, Jr., Judge.

A RGUED D ECEMBER 2, 2009—D ECIDED F EBRUARY 26, 2010

Before B AUER, K ANNE, and T INDER, Circuit Judges.

T INDER, Circuit Judge. While incarcerated at the

St. Joseph County Jail, Gregory Zick, an inmate with a

history of suicidal tendencies, took his own life. Zick’s

mother, Cathy Minix, brought suit under 42 U.S.C. § 1983

against several jail officials for their alleged deliberate

indifference to Zick’s suicide risk. The district court

granted summary judgment in favor of the defendants.

We affirm.

2 Nos. 09-2001 & 09-2817

I. Background

Gregory Zick was a mental health patient at Indiana’s

Richmond State Hospital. In March 2003, Zick was on

leave from the hospital at the request of his mother, Cathy

Minix, to attend a family funeral. Unfortunately, Zick

became separated from Minix and, on March 22, was

arrested on charges of theft and battery.

Zick was incarcerated at the St. Joseph County

Jail. During booking, jail personnel noted that Zick had

laceration scars on his wrist and neck, and Zick admitted

to attempting suicide in the previous month. It was

also learned that Zick was taking several prescription

medications to inhibit suicidal thoughts, and the jail

arranged for Zick to continue receiving those medications.

The jail provided for inmates’ health care by contracting

with outside companies. Memorial Home Care, Inc. had

an agreement with the jail to provide medical, dental, and

psychiatric care. Dr. Douglas David was a Memorial

employee who performed medical director services at

Memorial’s jail facility, and Nurse Jeanne James was

the manager of the facility who supervised the nursing

staff. The jail also had an agreement with Madison

Center, Inc., a community mental health center, to

provide mental health services on a referral basis.

Shortly after Zick’s incarceration, a jail classification

officer wrote a letter to Nurse James indicating that Zick

should be placed on a suicide watch in light of his

recent suicide attempt and depressed attitude. Zick was

accordingly housed in medical segregation for observa-

tion. A few days later, on March 27, Madison employee

Nos. 09-2001 & 09-2817 3

Christine Lonz met with Zick during her weekly visit to

the jail for mental heath assessments. Lonz, who had

experience but no formal licensure in mental health

treatment, did not review Zick’s medical chart or list of

medications. She also did not speak with any jail

personnel regarding Zick’s condition or learn that he

had been placed on a suicide watch. During her deposi-

tion, Lonz testified that she could not recall the specifics

of her conversation with Zick, only that he was generally

polite and cooperative. After speaking with Zick, Lonz

filed a brief report noting that Zick denied having

suicidal thoughts.

The same day as Lonz’s assessment, Nurse James pre-

pared a form requesting that Zick be taken off suicide

watch in medical segregation and transferred into the

general population, noting that Zick denied having

suicidal tendencies.

About a month later, on April 21, Zick refused his

medications, and jail officers noted that a blade was

missing from Zick’s razor. Officers moved Zick to medical

segregation for a suicide watch and charged Zick with

“attempted suicide,” improper use of materials, and

disruptive conduct. Over the next two days of observa-

tion in medical segregation, nurses reported that Zick

was alert and polite and denied suicidal thoughts, and

on April 23, James arranged for Zick’s transfer out of

medical segregation. Because Zick had been charged

with attempted suicide and other violations, he was

transferred to disciplinary segregation rather than back

into the general population. A jail officer saw Zick in his

4 Nos. 09-2001 & 09-2817

cell at dinner time, just after 4:00 p.m., but the next re-

corded check on Zick was not until 11:00 p.m., when an

officer discovered that Zick had used his bed sheet to

hang himself from the bars on his cell window. A nurse

soon arrived and determined that Zick was unresponsive.

Minix, as the personal representative of Zick’s estate,

brought a § 1983 action against multiple defendants,

including Madison Center, Lonz, Memorial Home Care,

Nurse James, Dr. David, the St. Joseph County Sheriff

(Frank Canarecci, Jr.), and several other jail and county

officials. Minix alleged that the defendants violated

Zick’s Eighth and Fourteenth Amendment rights by

displaying deliberate indifference to his risk of sui-

cide. Minix also raised supplemental claims under

Indiana law.

On Minix’s deliberate indifference claim, the district

court granted summary judgment in favor of all defen-

dants except Memorial, Dr. David, and the Sheriff in

his official capacity. The court found a triable issue on

whether Memorial and the Sheriff were liable for main-

taining inadequate suicide-prevention policies at the

jail. As for David, the court determined that a jury could

find that David acted with deliberate indifference in

delegating the authority to assess suicidal inmates to

an unqualified nursing staff.

Upon the defendants’ motion to reconsider, however,

the district court reversed its summary judgment ruling

with respect to Memorial and David. The court acknowl-

edged that, in its initial ruling, the court erroneously

relied on the opinion of one of Minix’s experts,

Nos. 09-2001 & 09-2817 5

Dr. Gutierrez, who concluded that the jail nursing staff

lacked the required training to assess Zick’s suicide risk.

The court further determined that Gutierrez’s opinion

was not reliable enough to be admitted as expert

evidence under Federal Rule of Evidence 702. With the

exclusion of Gutierrez’s opinion, Minix’s evidence

was insufficient to avoid summary judgment on her

deliberate indifference claim against Memorial and David.

That left Minix’s official-capacity claim against the

Sheriff as the only federal claim in the lawsuit. But the

Sheriff made Minix an offer of judgment in the amount

of $75,000 pursuant to Federal Rule of Civil Procedure

68. Minix accepted the offer, and the district court

entered judgment against the Sheriff, who has since

paid Minix the judgment amount. Having resolved all of

Minix’s federal claims, the district court declined to

exercise supplemental jurisdiction over Minix’s state-

law claims and dismissed those claims without prejudice.

Minix appeals the district court’s adverse summary

judgment ruling on her deliberate indifference claim

with respect to only defendants Lonz, Madison Center,

Nurse James, Dr. David, and Memorial Home Care. The

portions of the judgment dismissing the other jail and

county officials are not appealed.

II. Analysis

A. Jurisdiction and Mootness

We begin by addressing whether we have jurisdiction

over this appeal, and specifically, whether Minix’s accep-

6 Nos. 09-2001 & 09-2817

tance of the Sheriff’s $75,000 offer of judgment mooted

this case. Minix is entitled to only one full compensation

for any single, indivisible injury caused by the

defendants, who are each jointly and severally liable for

that injury. Watts v. Laurent, 774 F.2d 168, 179 (7th Cir.

1985). So if the Sheriff’s $75,000 offer of judgment was

full compensation for Minix’s injury, Minix could not

recover more compensation from any other defendant.

Minix would be left with no viable claim for com-

pensatory damages against the other defendants in this

appeal, suggesting that her appeal is moot.

Still, even assuming that the Sheriff’s offer fully com-

pensated Minix’s injury (which is doubtful, when com-

pared with verdicts in other jail suicide cases, see, e.g.,

Woodward v. Corr. Med. Servs., 368 F.3d 917, 920, 930

(7th Cir. 2004) (upholding $250,000 in compensatory

and $1.5 million in punitive damages)), we conclude

that the offer does not moot Minix’s appeal. Instead,

Minix’s acceptance of the Sheriff’s offer merely gives

the remaining defendants a possible defense that, should

they be found liable, Minix is precluded from recovering

additional compensatory damages from them. See Re-

statement (Second) of Judgments § 49 (1982) (“A judgment

against one person liable for a loss does not terminate a

claim that the injured party may have against another

person who may be liable therefor.”); Restatement (Second)

of Torts § 885(3) & cmt. e (1979) (Compensation paid

by one jointly and severally liable tortfeasor diminishes

the plaintiff’s claim against the remaining tortfeasors.).

We also note that, even if Minix were precluded from

seeking additional compensatory damages, the possi-

Nos. 09-2001 & 09-2817 7

bility of punitive damages would avoid mootness with

respect to several defendants. Minix’s complaint

demands, in addition to compensatory damages, punitive

damages against the defendants in this case. Although

the principle of joint and several liability prevents

Minix from recovering duplicative compensatory

damages, it does not affect the defendants’ individual

liability for punitive damages, which are assessed sepa-

rately against each defendant. Bosco v. Serhant, 836 F.2d

271, 281 (7th Cir. 1987) (clarifying that the principle of one

full recovery applies only to compensatory, not punitive,

damages). Moreover, the $75,000 judgment paid by the

Sheriff could not have been towards any punitive

damages claim, since Minix obtained that judgment

against the Sheriff in his official rather than individual

capacity. This official-capacity claim against the Sheriff

is considered one against a municipality, and municipali-

ties are immune from punitive damages in § 1983 suits.

United States ex rel. Chandler v. Cook County, Ill., 277 F.3d

969, 977 (7th Cir. 2002) (citing City of Newport v. Fact

Concerts, 453 U.S. 247, 271 (1981)); see also Hill v. Shelander,

924 F.2d 1370, 1374 (7th Cir. 1991) (“[P]unitive damages

[may] be recovered against a government actor only in

an individual capacity suit.”). It follows as a matter of

law that Minix has not recovered any punitive damages

from the Sheriff or anyone else, and her punitive

damages claims against the individual defendants in

this appeal—Lonz, James, and David—present a live

controversy.

8 Nos. 09-2001 & 09-2817

B. Deliberate Indifference Liability Under § 1983

We review de novo the district court’s grant of sum-

mary judgment for the defendants, construing the

evidence and all reasonable inferences in favor of Minix.

Johnson v. Saville, 575 F.3d 656, 659 (7th Cir. 2009) (citation

omitted).

The Eighth Amendment’s ban on “cruel and unusual

punishments” requires prison officials to take reasonable

measures to guarantee the safety of inmates, including

the provision of adequate medical care. Farmer v.

Brennan, 511 U.S. 825, 832 (1994). Although the Eighth

Amendment applies only to convicted persons, pretrial

detainees like Zick are entitled to the same basic

protections under the Fourteenth Amendment’s due

process clause. Accordingly, we apply the same legal

standards to deliberate indifference claims brought

under either the Eighth or Fourteenth Amendment.

Thomas v. Cook County Sheriff’s Dep’t, 588 F.3d 445, 452 n. 1

(7th Cir. 2009).

An Eighth Amendment claim based on inadequate

medical care contains two elements: (1) the prisoner

suffered an objectively serious harm that presented a

substantial risk to his safety, and (2) the defendants

were deliberately indifferent to that risk. Collins v.

Seeman, 462 F.3d 757, 760 (7th Cir. 2006). In this prison

suicide case, the first element is automatically satisfied

because “it goes without saying that suicide is a serious

harm.” Id. (quotation omitted). The second, “deliberate

indifference” element requires a dual showing “that the

defendant: (1) subjectively knew the prisoner was at

Nos. 09-2001 & 09-2817 9

substantial risk of committing suicide and (2) inten-

tionally disregarded the risk.” Id. at 761 (citing Matos

ex rel. Matos v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003)).

With these standards in mind, we address whether

Minix has shown a genuine issue of material fact on her

deliberate indifference claims against each of the five

defendants in this appeal—Lonz, Madison Center, Nurse

James, Dr. David, and Memorial Home Care. Minix has

sued Lonz, James, and David in both their individual

and official capacities. In the sections that follow, our

discussions of each of the three individual defendants

pertain to Minix’s individual-capacity claims. As for

Minix’s official-capacity claims against the individual

defendants, we treat those claims the same as Minix’s

claims against these defendants’ corporate employers,

Madison Center and Memorial Home Care. See Kentucky

v. Graham, 473 U.S. 159, 165-66 (1985).

1. Lonz

Beginning with Christine Lonz, the Madison Center

employee who assessed Zick shortly after his incarcera-

tion, we conclude that Lonz is entitled to summary judg-

ment because she lacked knowledge of “the significant

likelihood that [Zick] may imminently seek to take his

own life.” Collins, 462 F.3d at 761. Lonz assessed Zick in

March 2003, after he was first placed on a suicide watch.

During that assessment, Zick was polite and coopera-

tive and denied having suicidal thoughts. It is also undis-

puted that Lonz did not know about Zick’s suicidal

history or even about his placement on the suicide

10 Nos. 09-2001 & 09-2817

watch. Absent any knowledge of Zick’s risk of suicide,

it cannot be said that Lonz was deliberately indifferent

to that risk. See id. at 761 n.2 (noting that prison

officials lacked knowledge of medical records that indi-

cated the inmate’s suicidal tendencies); Matos, 335 F.3d

at 557 (noting that officials were unaware of a prior

recorded suicide attempt).

Minix criticizes Lonz’s assessment of Zick, claiming that

any qualified mental health professional would have

probed more deeply into Zick’s psychological history

and discovered his recent suicidal tendencies. Assuming

that Lonz’s assessment was inadequate, the fact that

she “ ‘should have been aware’ ” of Zick’s risk of suicide is not

enough to show the required, actual knowledge of

serious harm. Collins, 462 F.3d at 761 (quoting Estate of

Novack ex rel. Turbin v. County of Wood, 226 F.3d 525,

529 (7th Cir. 2000)). Lonz’s alleged incompetence in

assessing Zick shows, at most, negligence, which is insuf-

ficient for Minix to avoid summary judgment on her

deliberate indifference claim. See Matos, 335 F.3d at 557.

2. Madison Center

Lonz’s employer, Madison Center, is a corporation that

contracted with the jail to perform the public function of

providing mental health services to inmates. Such con-

tractors are treated the same as municipalities for

liability purposes in a § 1983 action. See Woodward v. Corr.

Med. Servs., 368 F.3d 917, 927 n.1 (7th Cir. 2004). “A munici-

pality may be liable for harm to persons incarcerated

Nos. 09-2001 & 09-2817 11

under its authority ‘if it maintains a policy that sanctions

the maintenance of prison conditions that infringe

upon the constitutional rights of the prisoners.’ ” Novack,

226 F.3d at 530 (quoting Payne v. Churchich, 161 F.3d

1030, 1043 (7th Cir. 1998)). The municipal policy or

practice must be the “direct cause” or “moving force”

behind the constitutional violation, which a plaintiff

may show directly by demonstrating that the policy is

itself unconstitutional. Id. at 530-31. If a plaintiff cannot

identify any formal policy that is unconstitutional, the

plaintiff may show deliberate indifference through “a

series of bad acts” creating an inference that municipal

officials were aware of and condoned the misconduct

of their employees. Id. at 531 (quotation omitted).

Minix does not identify any unconstitutional policy

that Madison adopted or condoned. Instead, Minix

argues that Madison acted with deliberate indifference

by sending an employee as unqualified as Lonz to assess

mental health patients at the jail. Without more evidence

that Madison was aware either that its employees were

routinely providing inadequate care or that Lonz in

particular was unqualified, Madison’s decision to send

Lonz to the jail is not enough for municipal liability. Cf.

Woodward, 368 F.3d at 927-28 (reviewing evidence that a

medical services contractor repeatedly acquiesced in

its employees’ inadequate training and failure to follow

procedure). Even if Lonz deprived Zick of adequate

medical care, this “single instance of allegedly uncon-

stitutional conduct does not demonstrate [Madison’s]

deliberate indifference” to inmates’ medical needs.

Novack, 226 F.3d at 531.

12 Nos. 09-2001 & 09-2817

Minix makes much of Madison’s representation to the

jail that Lonz was a Qualified Mental Health Professional

(“QMHP”), as that term is defined in the section of the

Indiana Administrative Code providing standards for

Medicaid-eligible mental health services. See 405 Ind.

Admin. Code 5-21-1(c). Lonz was not a QMHP, Minix

claims, because she lacked a master’s or doctoral degree

in one of specified disciplines such as psychiatry, psy-

chology, and social work. See id. § 1(c)(4). Minix’s reading

of the Code is too narrow, for the relevant section also

confers QMHP status on someone “with documented

education, training, or experience, comparable or equiva-

lent” to that acquired through the specified degrees. Id.

§ 1(c)(6). Although Lonz might have been short on

formal licenses or degrees, she had obtained course

work, training, and other experience in fields such as

community health, mental illness, and the treatment of

prisoners. More importantly, without evidence that

Madison was on notice of inadequate inmate care by

Lonz, we do not see how the full scope of Lonz’s qualifica-

tions is relevant to establishing Madison’s deliberate

indifference.

We also conclude that Minix failed to produce

evidence that any unconstitutional practice by Madison

in this case was the “direct cause” of Zick’s suicide, as

required for municipal liability. Lonz’s allegedly inade-

quate assessment took place in March 2003, shortly

after Zick’s incarceration at the jail and initial placement

on a suicide watch. It was not until late April when

different jail officials, not employed by Madison, placed

Zick on his second suicide watch and began a series of

Nos. 09-2001 & 09-2817 13

actions that led to Zick’s death. Given this sequence of

events, no causal link exists between Madison’s conduct

and Zick’s “successful suicide attempt” that occurred

several weeks later. See Woodward, 368 F.3d at 928; cf.

Thomas, 588 F.3d at 454-55 (finding a link between the

practice of failing to review medical requests and the

inmate’s death).

3. James

Turning to the defendants associated with Memorial

Home Care, we begin with Minix’s claim against Nurse

James, who managed Memorial’s facility at the jail. After

Zick’s placement on suicide watches in both March

and April 2003, it was James’s recommendations that led

to Zick’s removal from suicide watch and transfer out

of medical segregation. Shortly after the second transfer,

Zick hanged himself in his cell. Although in hindsight

the decision to release Zick from medical observation

might have been a mistake, Minix’s evidence fails to

show that James acted with deliberate indifference to

a known risk that Zick would take his own life.

Prior to his final release from medical segregation

in April 2003, Zick had been under observation for two

days, during which time he denied suicidal thoughts

and was generally alert and positive. He displayed

similar behavior shortly before his release from the first

suicide watch. Given Zick’s denials of suicide, James had

no actual knowledge that Zick would “imminently seek

to take his own life.” Collins, 462 F.3d at 761 & n.2 (noting

that the inmate denied having suicidal thoughts); see also

14 Nos. 09-2001 & 09-2817

Matos, 335 F.3d at 557 (finding that prison mental health

professionals lacked knowledge of a serious risk where

the inmate never said that he felt suicidal). Even had

Zick displayed “strange behavior” raising a suspicion

that he might harm himself, we would hesitate to find

a triable issue on whether James deliberately disregarded

a substantial risk of suicide. Novack, 226 F.3d at 530. Here,

Zick displayed no such strange behavior or any obvious

signs that he was an imminent suicide risk. Cf. Thomas,

588 F.3d at 452-53 (finding deliberate indifference based

on prison officials ignoring an inmate’s visible symptoms

of serious illness).

To be sure, medical experts could—and did—criticize

James’s evaluations of Zick. Minix points to expert opin-

ions produced during the summary judgment pro-

ceedings indicating that James displayed poor judgment

in releasing Zick from suicide watch, and that she

should not have taken Zick’s denials of suicide at face

value. Still, to the extent that James committed an error

in judgment, that error “leads only to negligence,” not to

deliberate indifference. Matos, 335 F.3d at 557 (The defen-

dants’ failure “not to take ‘no’ for an answer when

Matos told them he was not suicidal” did not show deliber-

ate indifference.).

4. David

Dr. David, a director of medical services at Memorial’s

jail facility, was not directly involved in Zick’s treatment

except to approve the prescription medications that he

received at the jail. This lack of direct participation makes

Nos. 09-2001 & 09-2817 15

Minix’s individual-capacity claim against David more

difficult, since individual liability under § 1983 requires

“personal involvement in the alleged constitutional

deprivation.” Palmer v. Marion County, 327 F.3d 588, 594

(7th Cir. 2003). To be personally liable under these cir-

cumstances, David must have condoned or acquiesced

in a subordinate’s unconstitutional treatment of Zick.

See id.

Although Minix’s evidence may cast doubt on David’s

performance as a medical director, it does not support

an inference that David condoned any unconstitutional

practice by Memorial employees. David, who started at

the jail just a few weeks before Zick’s arrival in

March 2003, testified that he was unfamiliar with certain

aspects of the jail’s suicide-prevention procedures, in-

cluding how much training and experience the jail

nurses had in assessing an inmate’s suicide risk. And as

discussed, expert testimony questioned Nurse James’s

treatment of Zick, suggesting that her own experience

ultimately proved inadequate. Missing from the record,

however, is evidence suggesting that David was aware

that James or any other nurse was performing incom-

petent assessments of suicidal inmates but nevertheless

acquiesced in that practice. Cf. Woodward, 368 F.3d at 927

(discussing supervisors’ approval of their employees’

disregard for suicide-watch procedures). Nothing

indicates that Memorial employees had a history of

providing incompetent care or otherwise disregarding

jail policy for suicide prevention. See Novack, 226 F.3d at

531 (finding no evidence of a pattern of suicide that

would support an inference that jail policies for treating

16 Nos. 09-2001 & 09-2817

mentally ill inmates were inadequate). Without knowl-

edge of the allegedly unconstitutional care that James

provided, David cannot be liable by mere virtue of his

supervisory status. Palmer, 327 F.3d at 594.

5. Memorial Home Care

Like Madison Center, Memorial Home Care is a corpora-

tion that contracted with the jail to provide medical

services, so Memorial is treated the same as a municipality

for liability purposes under § 1983. To prevail on her

deliberate indifference claim, Minix must show that a

policy either adopted or condoned by Memorial caused

Zick to receive constitutionally inadequate care. See

Novack, 226 F.3d at 530.

Memorial was subject to the jail’s policy of providing

proper health care to inmates, which required Memorial

to maintain an adequate health care staff at the jail. With

respect to suicide prevention specifically, jail policy

required that an inmate identified as possibly suicidal

be assessed by a nurse as soon as possible, followed by

continuous observation.

Minix does not directly challenge these jail policies or

identify any Memorial policy that was itself unconstitu-

tional. Instead, Minix argues that Memorial violated jail

policy by failing to ensure that suicidal inmates received

care from persons with adequate psychiatric training.

But similar to the failings in Minix’s claim against

Madison Center, Minix lacks evidence that Memorial

condoned a widespread practice of providing inadequate

Nos. 09-2001 & 09-2817 17

mental health care to inmates. Even if Zick received

inadequate care from James or other nurses, this isolated

failure would not show that Memorial had notice of

ongoing conduct by its employees that created a sub-

stantial risk of harm. Cf. id. at 531 (“[A] series of bad acts”

may support an inference that the municipality “was

bound to have noticed what was going on . . . .” (quotation

omitted)).

As additional support for her claim against Memorial,

Minix points to the report of her expert, Dr. Gutierrez,

indicating that the jail’s nursing staff did not have the

training required to competently assess an inmate’s risk

of suicide. The district court, however, found that

Gutierrez’s report was too unreliable to be admitted as

an expert opinion under Federal Rule of Evidence 702, so

we must determine whether the court abused its discre-

tion in excluding this evidence, see Smith v. Ford Motor

Co., 215 F.3d 713, 717 (7th Cir. 2000).

Rule 702 allows “a witness qualified as an expert by

knowledge, skill, experience, training, or education” to

testify as to “scientific, technical, or other specialized

knowledge,” where such knowledge “will assist the trier

of fact.” To be admissible under Rule 702, the expert’s

opinion must offer more than a “bottom line.” Wendler &

Ezra, P.C. v. Am. Int’l Group, Inc., 521 F.3d 790, 791 (7th Cir.

2008) (per curiam) (quotation omitted). The expert must

explain the methodologies and principles supporting the

opinion. See Fed. R. Evid. 702 (requiring that expert

testimony be “the product of reliable principles and

methods”); Smith, 215 F.3d at 718 (“[T]he role of the

18 Nos. 09-2001 & 09-2817

court is to . . . examine the methodology the expert has

used in reaching his conclusions.”).

We conclude that the district court acted within its

discretion in excluding Gutierrez’s report. In the relevant

portion of the report, Gutierrez asserted that taking an

inmate off suicide watch was “beyond the scope of educa-

tion, training, and experience for Nursing Personnel

employed at the Jail in March and April of 2003.” Gutierrez

cited no medical standards or principles in support of

that conclusion. Given Gutierrez’s failure to explain his

methodology, the district court could conclude that the

report offered “nothing of value to the judicial process.”

Wendler, 521 F.3d at 791 (quotation omitted). Minix there-

fore cannot rely on Gutierrez’s report to avoid sum-

mary judgment.

III. Conclusion

Zick’s suicide was tragic, but the evidence produced

was not enough to overcome the “high hurdle” set by the

deliberate indifference standard for liability under § 1983.

Collins, 462 F.3d at 762. We A FFIRM the grant of summary

judgment in favor of the defendants.

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