Cornel J. Rosario v. Daniel R. Braw

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2072

C ORNEL J. R OSARIO , as Special Administrator of the

Estate of Marc J. Rosario, deceased,

Plaintiff-Appellant,

v.

D ANIEL R. B RAWN, JEFFREY A. SCHWITZ, and

A DAM C. W INKLER,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-C-0590—Patricia J. Gorence, Magistrate Judge.

A RGUED O CTOBER 31, 2011—D ECIDED M ARCH 1, 2012

Before K ANNE and W ILLIAMS, Circuit Judges, and

D EG UILIO , District Judge.Œ

K ANNE, Circuit Judge. In May 2008, Washington

County Sheriff deputies responded to a call indicating

Œ

The Honorable Jon E. DeGuilio, United States District Court

for the Northern District of Indiana, sitting by designation.

2 No. 11-2072

that Marc Rosario had left the home he shared with his

parents, and that he was possibly a danger to himself

and others. The responding officers located Marc and

eventually determined that he should be involuntarily

committed pursuant to Wis. Stat. § 51.15. During Marc’s

initial evaluation at a nearby hospital, the officers discov-

ered a nylon wallet on Marc’s person, but their search

was not thorough enough to discover that the wallet

contained a concealed razor blade. Later that morning

while still in police custody, Marc regained possession

of the razor blade during his transport from the hospital

to the Winnebago Mental Health Institute. As he sat

quietly in the back seat of the squad car, Marc used the

concealed razor blade to commit suicide. As Special

Administrator to Marc’s estate, Marc’s father, Cornel

Rosario filed a § 1983 suit alleging that the officers were

deliberately indifferent towards Marc’s risk of suicide

in violation of the Fourteenth Amendment. Finding

that Rosario could not overcome the high hurdle

imposed by the deliberate indifference standard, the

district court entered summary judgment for the defen-

dants. We affirm.

I. B ACKGROUND

Although tragic, the facts here are generally undisputed.

Just after midnight on May 8, 2008, Cornel Rosario

called the Washington County, Wisconsin Sheriff’s De-

partment to report that his son Marc had just left home

and was possibly a danger to himself and others. Deputy

Daniel Brawn took the call at which time the dispatcher

No. 11-2072 3

informed Brawn that Marc had access to knives. At ap-

proximately 1:06 a.m., Deputy Brawn located Marc a

short distance from the Rosario home. After Deputy

Brawn made contact with the subject, Marc explained

that he was undergoing a “transformation” into a “fire-

flying serpent.” Deputy Brawn also noticed the highly

unusual rate at which Marc was consuming water.

Clearly concerned with Marc’s mental state, Deputy

Brawn contacted his supervisor, Sergeant Ryan Herman,

to discuss the best course of action, including whether

it was prudent to involuntarily commit Marc pursuant

to Wis. Stat. § 51.15.1 Sergeant Herman and Deputy

Brawn agreed that Marc should initially be taken to

the Acute Care Services division of the Washington

County Department of Human Services (“ACS”) for

further evaluation before making a § 51.15 determination.

To transport Marc to ACS, Deputy Brawn placed

Marc in handcuffs. Because of Marc’s larger stature,

Deputy Brawn used two sets of handcuffs to make

Marc more comfortable—one cuff was placed on each

wrist and joined in the middle of Marc’s back. Before

placing Marc in his squad car, Deputy Brawn searched

Marc during which he located and removed a three-to-

four-inch pocket knife, a cigarette lighter, and a chain

wallet containing a large amount of cash. After the

1

Under Wisconsin law, “A law enforcement officer . . . may

take an individual into custody if the officer . . . has cause to

believe that the individual is mentally ill, is drug dependent,

or is developmentally disabled . . . .” Wis. Stat. § 51.15(1)(a).

4 No. 11-2072

search, Marc agreed that speaking with a priest at Holy

Hill Basilica might calm his nerves. Deputy Brawn and

Deputy Michael Anderson transported Marc to Holy

Hill at approximately 1:38 a.m., only to find that a priest

was unavailable. A few minutes later, ACS mental

health specialist, Matt Wiedmeyer, arrived at the church

in an attempt to further assess Marc’s condition. Unable

to gather any information from Marc, Wiedmeyer

departed twenty minutes later. At 2:30 a.m., Marc was

given permission to step out of the squad car to stretch

his legs. Deputy Brawn also stepped away momentarily

to discuss Marc’s condition with officers who had

spoken with Marc’s parents. Out of the car but still in

handcuffs, Marc repositioned his hands in such a way

that allowed him to break his eyeglass lenses. Marc then

attempted to use the broken lenses to cut his wrists, but

Deputies Anderson and Brawn restrained Marc before

he harmed himself.

Based on the totality of Marc’s behavior, Deputy

Brawn was now convinced that Marc should be involun-

tarily detained according to § 51.15. Deputies Brawn

and Anderson transported Marc to St. Joseph’s Hos-

pital for a preliminary medical screening. Deputy Adam

Winkler and Wiedmeyer met Deputies Brawn and Ander-

son at the hospital. On the way to St. Joseph’s, Deputy

Brawn kept the squad car’s interior dome light on to

monitor Marc. Marc behaved normally during the trans-

port. Upon arriving, Marc was taken to an examination

room, where both of his wrists were handcuffed to the

bed rails. For approximately three hours, Dr. James

Erickson and several nurses monitored Marc and per-

No. 11-2072 5

formed various medical tests. Marc generally cooperated

with each procedure, although he occasionally leaned

over the bed railing at a forty-five degree angle. Seeing

this unusual movement, Deputy Brawn asked Marc if

everything was okay, at which point Marc resumed

sitting on the bed in a normal, upright position. Another

time, Marc gave a thumbs-up response to Deputy Brawn

after being asked whether everything was okay.

Marc’s only other movement during his examination

was when he used one of his hands to motion to his

left rear pants pocket. Noticing Marc’s hand, Deputy

Winkler went to Marc’s bedside and removed a thin,

nylon tri-fold wallet, which had not been discovered

during Deputy Brawn’s previous pat-down search.

Deputy Winkler removed the contents of the wallet,

which included cash, a plastic card similar to a credit

card, and a small silver foil packet. Of the officers in

the hospital room, only Deputy Winkler held the foil

packet, which the contents to him felt soft. Deputy

Brawn commented that the foil packet resembled a Band-

Aid. The deputies never actually opened the foil

packet even though one side of the package con-

tained the words “Surgical Blade.” Had Deputy Winkler

or anyone else actually opened the foil packet, they

would have discovered a small razor blade consistent

with the writing on the package. The parties agree

that the deputies did not read the “Surgical Blade” text

or realize that the packet actually contained a razor

blade. Having satisfied himself with his inspection,

Deputy Winkler placed each item back in the nylon

6 No. 11-2072

wallet and placed the wallet inside one of Marc’s shoes,

which were located on the floor at the foot of Marc’s

bed. Before leaving the hospital, Marc regained posses-

sion of his wallet, and thus, the razor blade. Although

there is some dispute whether a St. Joseph’s nurse

returned the wallet to Marc or Marc himself simply

placed it in his pocket, the only relevant fact for our

purposes is that Marc regained possession of the razor

blade. The parties do not dispute that the Sheriff’s De-

partment formally disciplined Deputies Brawn and

Winkler in part for failing to observe Marc regain pos-

session of his wallet.

At the conclusion of the St. Joseph’s examination,

the Winnebago Mental Health Institute in Oshkosh

agreed to accept Marc for admission as a § 51.15 pa-

tient. Deputy Jeffrey Schwitz assisted Deputy Brawn

with Marc’s transport to Oshkosh. Before leaving, the

deputies placed Marc in belly chains—a type of restraint

where individual cuffs attach to a steel chain placed

around the person’s waist. Deputy Schwitz twice

searched the rear of the squad car for weapons or other

foreign objects before allowing Marc to enter. The

officers did not search Marc’s person before leaving

for Oshkosh.

During the trip from St. Joseph’s to Winnebago

Mental Health Institute, Deputy Schwitz drove, Deputy

Brawn sat in the front passenger seat, and Marc sat in

the back seat. In the squad car, a solid steel partition

containing a sliding Plexiglas and mesh panel separated

Marc from the deputies. Because of the divider, the depu-

No. 11-2072 7

ties were unable to observe Marc’s hands during trans-

port, although Deputy Schwitz could observe Marc’s

face through the rearview mirror. Additionally, Deputy

Brawn occasionally asked Marc if he was okay, to which

Marc responded affirmatively by grunting or sitting

upright. Deputy Brawn, turning his head toward the

back seat, also noticed that Marc would sometimes lean

to one side of the squad car, but Deputy Brawn con-

sidered such movements to be normal during longer

trips. Neither officer noticed any unusual behavior

from Marc until he slumped over in the back seat. As

Marc slumped over, Deputy Schwitz noticed that Marc’s

face and neck were covered in blood. Seeing Marc’s

injuries, Deputy Schwitz activated the car’s emergency

lights and drove to the Winnebago County Sheriff’s

Department. Meanwhile, Deputy Brawn placed a 911 call

requesting that an ambulance meet the squad car in

the Sheriff’s Department’s parking lot. Upon the depu-

ties’ arrival, they both got out of the vehicle and at-

tempted to administer first aid to Marc, including

placing a large gauze bandage on his open wounds.

Marc fought the deputies’ efforts and he even managed

to tear off the bandage. The paramedics took over

Marc’s medical care when they arrived, but Marc ulti-

mately died in the parking lot of self-inflicted wounds

to his neck. Marc had used the razor blade from the

foil packet to cut himself.

As the Special Administrator for his son’s estate,

Cornel Rosario brought a 42 U.S.C. § 1983 suit against

Deputies Brawn and Schwitz and former Deputy

8 No. 11-2072

Winkler (collectively, the “defendants” or “officers”)

alleging the officers were deliberately indifferent to

Marc’s risk of suicide in violation of the Fourteenth

Amendment. The defendants moved for summary judg-

ment on June 15, 2010. By the consent of the parties,

Magistrate Judge Gorence considered the motion and

granted summary judgment in favor of the defendants.

Cornel Rosario filed this timely appeal.

II. A NALYSIS

Summary judgment is appropriate only when “the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). We review

grants of summary judgment de novo, Berry v. Chicago

Transit Auth., 618 F.3d 688, 690 (7th Cir. 2010), viewing

the record in the light most favorable to Rosario and

drawing all reasonable inferences in his favor, McCann

v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).

Although we have previously cautioned against weighing

evidence at summary judgment, Kodish v. Oakbrook

Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010),

we have also said that “a factual dispute is ‘genuine’

only if a reasonable jury could find for either party,”

SMS Demag Aktiengesellschaft v. Material Scis. Corp.,

565 F.3d 365, 368 (7th Cir. 2009). On appeal, Rosario

primarily argues that the district court erred by granting

summary judgment for the defendants. Rosario also

preemptively argues that the officers are not entitled to

qualified immunity.

No. 11-2072 9

A. Deliberate Indifference

The Eighth Amendment’s ban on cruel and unusual

punishment includes a proscription against deliber-

ately indifferent treatment towards prisoners. Farmer v.

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

Amendment applies only to convicted persons, pretrial

detainees . . . are entitled to the same basic protections

under the Fourteenth Amendment’s due process clause,”

and we apply the same deliberate indifference standard

in both types of cases. Minix v. Canarecci, 597 F.3d

824, 831 (7th Cir. 2010). That said, a successful § 1983

deliberate indifference claim requires Rosario to prove

that “(1) the harm that befell the prisoner [is] objectively,

sufficiently serious and a substantial risk to his or her

health or safety, and (2) the individual defendants

were deliberately indifferent to the substantial risk to

the prisoner’s health and safety.” Collins v. Seeman, 462

F.3d 757, 760 (7th Cir. 2006). In suicide cases, the

objective element “is met by virtue of the suicide itself,

as it goes without saying that suicide is a serious harm.”

Id. (quoting Sanville v. McCaughtry, 266 F.3d 724, 733 (7th

Cir. 2001)). As such, Rosario turns our attention to the

second element, where we have long required a dual

showing in prison-suicide cases. Namely, Rosario must

prove that the defendants “(1) subjectively knew the

prisoner was at substantial risk of committing suicide

and (2) intentionally disregarded the risk.” Minix, 597

F.3d at 831 (quoting Collins, 462 F.3d at 761). For

purposes of summary judgment, the officers acknowl-

edge that they subjectively knew Marc was at a

substantial risk of committing suicide. Thus, the only

10 No. 11-2072

issue for our review is whether Rosario satisfied his

summary judgment burden by showing that the officers

intentionally disregarded Marc’s risk of suicide.

Rosario’s hope for reversal rests almost entirely on

his misinterpretation of a district court opinion in

Mombourquette v. Amundson, 469 F. Supp. 2d 624 (W.D.

Wis. 2007), and the cases on which it relied, see, e.g.,

Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006);

Sanville, 266 F.3d at 737. The district court in Mombour-

quette correctly concluded that a defendant can be

found liable for deliberate indifference if she was aware

of the risk and did not respond reasonably to that risk.

Id. at 637. But, Rosario’s reading of Mombourquette,

Borello, and Sanville clings to the reasonableness of the

officers’ actions in an apparent attempt to equate

the deliberate indifference standard with a negligence

standard. In doing so, he highlights three instances

where the officers acted unreasonably: (1) they failed to

fully inspect the foil packet containing the razor blade;

(2) they allowed Marc to regain possession of the foil

packet; and (3) they failed to monitor Marc during the

trip to Winnebago Mental Health Institute. To Rosario,

each action was unreasonable in light of what the

officers knew about Marc’s condition.

As a threshold matter, Rosario is wrong to focus

so heavily on Mombourquette’s use of the term reason-

able. Although we require that prison officials act rea-

sonably when presented with a detainee’s substan-

tial risk of harm, Peate v. McCann, 294 F.3d 879, 882

(7th Cir. 2002), we do not assess the officers’ actions

No. 11-2072 11

according to a mere negligence standard. To the con-

trary, we have consistently held that deliberate indif-

ference “requires a showing of more than mere or gross

negligence.” Collins, 462 F.3d at 762 (quoting Matos ex rel.

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

see also Borello, 446 F.3d at 749; Woodward v. Corr. Med.

Servs. of Ill., 368 F.3d 917, 926 (7th Cir. 2004); Soto v.

Johansen, 137 F.3d 980, 981 (7th Cir. 1998); Luttrell v.

Nickel, 129 F.3d 933, 936 (7th Cir. 1997); Snipes v. DeTella,

95 F.3d 586, 590 (7th Cir. 1996). And Mombourquette is

no different. 469 F. Supp. 2d at 637 (“The deliberate

indifference standard requires more than a finding of

negligence but less than a showing of intentional harm.”).

We have even characterized the standard as imposing

a high hurdle on plaintiffs because it requires a

“showing as something approaching a total unconcern

for the prisoner’s welfare in the face of serious risks.”

Collins, 462 F.3d at 762 (citation and quotation marks

omitted). In other words, the officers may escape liability

even if they did not take perfect action. See Cavalieri v.

Shepard, 321 F.3d 616, 622 (7th Cir. 2003) (defendant’s

“action must be reckless before § 1983 liability can be

found”); Peate, 294 F.3d at 882 (“Prison officials

who actually knew of a substantial risk to inmate health

or safety are free from liability if they responded reason-

ably to the risk, even if the harm ultimately was not

averted.”).

With the correct deliberate indifference standard in

hand, we agree with the district court that Rosario pre-

sented little evidence suggesting that the officers acted

recklessly or that they deliberately ignored Marc’s

12 No. 11-2072

suicidal tendencies. Instead, the overall picture of the

officers’ actions towards Marc is one of protection

and compassion. For example, Deputy Brawn searched

Marc on contact and removed a pocket knife from

his possession; Deputy Brawn took Marc to Holy Hill

Basilica in an effort to relax Marc; the officers allowed

Marc to stretch his legs at Holy Hill; an ACS mental

specialist was called to the scene to assess Marc’s condi-

tion; the officers immediately sought medical atten-

tion when Marc displayed self-destructive behavior at

Holy Hill; Marc was placed in two sets of handcuffs

during the first transport and then belly chains during

the second transport in order to make his ride more

comfortable; Deputy Brawn kept the police cruiser’s

dome light on during the trip to St. Joseph’s as a means

of monitoring Marc; Deputy Brawn asked Marc at St.

Joseph’s whether he was comfortable or whether he

was feeling okay; similarly, Deputy Brawn occasionally

asked Marc if he was okay during the trip to Oshkosh;

Deputy Brawn immediately radioed for medical help

when Marc started bleeding; and both deputies per-

sonally administered first aid to Marc in spite of his

resistance.

Admittedly, the officers’ actions were not perfect.

Specifically, the officers should have paid greater

attention to the objects in Marc’s nylon wallet and

they should have immediately inventoried the wallet

for safekeeping. But this inattention to detail, although

ultimately tragic, does not support a constitutional

claim that the officers intentionally disregarded Marc’s

known safety risks. We do not require perfection.

No. 11-2072 13

Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004).

Rather, we require Rosario to prove that the officers’

conduct was “something approaching a total unconcern”

for Marc’s welfare, Collins, 462 F.3d at 762, and evidence

of such mistreatment is absent. The undisputed record

reveals Deputy Winkler felt the foil packet and noted

that it felt soft. Likewise, Deputy Brawn commented

that the packet appeared to be a Band-Aid. The fact

that the deputies were concerned enough to search

Marc’s person and inspect the contents of the wallet

contradicts Rosario’s theory that the officers were delib-

erately indifferent to Marc’s condition. The record

also does not suggest that either deputy was reckless

in permitting Marc to regain possession of his wallet.

Rather, Deputy Winkler specifically placed the wallet

in Marc’s shoe as a means of keeping the items away

from the still-handcuffed Marc. Even though the officers

took their eyes off the wallet for some period of time,

that evidence does not support an inference that

the officers recklessly allowed Marc to harm himself.

Throughout their time with Marc, the officers plainly

did more right than wrong. When we review the to-

tality of their actions that night, we conclude that the

officers did not act with deliberate indifference even

if there were isolated missteps along the way.

B. Qualified Immunity

Rosario also preemptively argues that the officers are

not entitled to qualified immunity. The district court

appropriately did not consider this argument because

14 No. 11-2072

Rosario did not establish that the officers deprived

Marc of a constitutional right. Because we find that the

officers did not deprive Marc of his Fourteenth Amend-

ment right to due process, we need not consider

Rosario’s argument. Pearson v. Callahan, 555 U.S. 223,

236 (2009); Van den Bosch v. Raemisch, 658 F.3d 778, 786

(7th Cir. 2011).

III. C ONCLUSION

We hold that Rosario did not produce sufficient evi-

dence tending to show that the officers were deliberately

indifferent towards Marc’s risk of suicide. Because no

reasonable jury could find in Rosario’s favor, we A FFIRM

the district court’s grant of summary judgment for the

defendants.

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