Estate of Miller, Ex Rel. Bertram v. Tobiasz

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3233

E STATE OF JESSIE M ILLER,

By Robert Bertram, Special

Administrator, et al.,

Plaintiffs-Appellees,

v.

R YAN T OBIASZ, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Wisconsin

No. 10 CV 807—William M. Conley, Chief Judge.

A RGUED F EBRUARY 24, 2012—D ECIDED M AY 24, 2012

Before R OVNER and M ANION, Circuit Judges, and

C OLEMAN, District Judge.Œ

C OLEMAN , District Judge. Jessie Miller committed

suicide while incarcerated at the Columbia Correctional

Œ

The Honorable Sharon Johnson Coleman, District Judge

for the United States District Court for the Northern District

of Illinois, is sitting by designation.

2 No. 11-3233

Institute (“CCI”). Miller’s minor siblings brought this

action under 42 U.S.C. § 1983, claiming that Miller com-

mitted suicide after several staff members at CCI acted

with deliberate indifference to Miller’s serious medical

condition involving a long history of suicide attempts, self-

harm, and mental illness. The district court granted

qualified immunity to the management level de-

fendants, the Wisconsin Resource Center (“WRC”) defen-

dants, and the nurse who was called after Miller

had committed suicide. The remaining defendants 1 ,

including CCI staff members, Jennifer/Janel Nickel2 ,

Ryan Tobiasz, Lieutenant Boodry, Captain M. Johnson,

Sergeant Severson, Officer Millard, Officer Herbrand,

Officer Bath, and Officer Quade, seek interlocutory

appeal from the district court’s denial of qualified im-

munity. We affirm.

I. Background

The CCI defendants are allowed to bring this interlocu-

tory appeal now because they are raising the question of

whether they should have been dismissed based on the

defense of qualified immunity. See Mitchell v. Forsyth, 472

1

At oral argument, there appeared to be some disagreement

about the number of defendants remaining in the case. Plaintiff

suggested only Nickel, Tobiasz and the two guards on duty

remain defendants. Defendants asserted that based on the

District Court’s ruling nine defendants remain.

2

Nurse Nickel is referred to variously as Janel Nickel and

Jennifer Nickel, and was previously unidentified Jane Doe.

No. 11-3233 3

U.S. 511, 525-26, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). The

issue of qualified immunity is “immunity from suit

rather than a mere defense to liability,” and thus we must

determine its application as early in the proceedings as

possible. Saucier v. Katz, 533 U.S. 194, 200, 150 L. Ed. 2d

272, 121 S. Ct. 2151 (2001) (emphasis in original). The

facts below are presented in the light most favorable

to Miller.

Jessie Miller had suffered from mental health issues

since the age of five. Over the years, Miller engaged in

various types of self-harm and attempted suicide on

several occasions. His mental health issues, self-harm

and suicidal ideation were well documented. During

his incarceration, Miller attempted suicide at Dane

County Jail on November 10, 2007, and then again at

Dodge Correctional Institute on June 4, 2008. Miller

was transferred to WRC due to his suicide attempts.

While at WRC, Miller continued to harm himself by

swallowing razor blades and other sharp objects and

banging his head against the walls. At some point, he

stated that he would commit suicide if returned to a

Wisconsin Department of Corrections facility. Three days

after being transferred to CCI on June 19, 2009, Miller

committed suicide by hanging himself with a bedsheet.

He was twenty-two years old.

Miller’s minor siblings filed the instant lawsuit

on Miller’s behalf alleging violation of Miller’s Eighth

Amendment rights based on defendants’ deliberate

indifference to Miller’s serious medical condition (his

mental illness and suicide risk). After obviously careful

4 No. 11-3233

consideration in a lengthy memorandum opinion and

order, the District Court granted qualified immunity

dismissal to seventeen of the approximately twenty-six

defendants, including the management level defendants,

WRC defendants and the nurse who was called after

Miller had committed suicide. The appellants are CCI

staff including the intake nurse (Nickel), the psych-

ology associate (Tobiasz), and several prison guards that

were on duty the night Miller committed suicide (Bath,

Boodry, Herbrand, Johnson, Millard, Quade and Severson).

II. Discussion

A complaint must be dismissed if the allegations do not

state a plausible claim. See Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.

1937 (2009). “The Court explained in Iqbal that ‘the plausi-

bility standard is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a defen-

dant has acted unlawfully.’ ” Atkins v. City of Chicago, 631

F.3d 823, 831 (7th Cir. 2011) (quoting Iqbal, 129 S. Ct. at

1949). As this Court recently explained in Atkins, “the fact

that the allegations undergirding a plaintiff’s claim could

be true is no longer enough to save it.” Atkins, 631

F.3d at 831. Thus, after Twombly and Iqbal, a plaintiff

must plead facts that suggest a right to relief beyond the

speculative level. Id. at 832.

Qualified immunity protects government officials

from individual liability for actions taken while per-

forming discretionary functions, unless their conduct

No. 11-3233 5

violates clearly established statutory or constitutional

rights of which a reasonable person would have known.

See Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th

Cir. 2000). Thus, in order to determine whether a

prison official is entitled to qualified immunity the

Court has two tasks. First, taking the facts in the light

most favorable to the plaintiff, we must determine

whether a constitutional right was violated. Second, if

the factual allegations demonstrate a constitutional viola-

tion, we then decide whether the right in question was

clearly established at the time of the occurrence.

Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003)

(citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). We review

these issues de novo. Jacobs v. City of Chicago, 215

F.3d 758, 765 (7th Cir. 2000).

We therefore begin by examining whether the

plaintiffs have alleged facts sufficient to plausibly

support the claim that the CCI defendants’ conduct

violated Miller’s constitutional rights. The same standard

applies for pretrial detainees and incarcerated indi-

viduals, though pursuant to the Fourteenth Amendment

rather than the Eighth Amendment. See Payne v. Churchich,

161 F.3d 1030, 1039-41 (7th Cir. 1998). The seminal case

describing constitutional violations under the Eighth

Amendment is Farmer v. Brennan, 511 U.S. 825, 832 (1994).

In Farmer, the Supreme Court held that prison officials

have a duty to “ensure that inmates receive adequate

food, clothing, shelter, and medical care.” Id. To deter-

mine whether an inmate’s Eighth Amendment rights

were violated by a deprivation, we examine the alleged

violation both objectively and subjectively. “First, the

6 No. 11-3233

deprivation alleged must be objectively, sufficiently

serious.” Sanville v. McCaughtry, 266 F.3d 724, 733 (7th

Cir. 2001) (quoting Farmer, 511 U.S. at 832). “Second,

the mental state of the prison official must have been

‘one of deliberate indifference to inmate health or

safety.’ ” Id.

In order to satisfy the first element, when a claim is

based upon the failure to prevent harm, the plaintiff

must show that the inmate was “incarcerated under

conditions posing a substantial risk of serious harm.”

Id. This Court has stated in numerous cases that, “suicide

is a serious harm.” See, e.g., Estate of Cole v. Fromm,

94 F.3d 254, 261 (7th Cir. 1996); see also Estate of Novack

ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th

Cir. 2000); Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992).

Under the second prong, “deliberate indifference”, “a

prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane condi-

tions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the

inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.”

Sanville, 266 F.3d at 734 (quoting Farmer, 511 U.S. at 837).

The question for us is whether, when viewing all well-

pleaded allegations in the complaint and construing

all reasonable inferences in the light most favorable to

Miller, it is plausible that each of the defendants-appel-

lants were subjectively aware of Miller’s serious medical

condition (i.e., that he was a suicide risk) and either

No. 11-3233 7

knowingly or recklessly disregarded it. If the answer

to that question is yes, then plaintiff has adequately

pleaded a constitutional violation and we ask whether

the right was clearly established at the time of the incident.

The defendants-appellants are in different positions

in terms of what they knew of Miller: Defendant Nickel,

a registered nurse at CCI, reviewed Miller’s chart upon

his arrival from WRC, conducted the transfer screening,

referred him to the Psychological Services Unit (“PSU”)

and checked “Yes” on the transfer form indicating that

Miller was on psychological medications; Defendant

Tobiasz, a psychological associate in the PSU at CCI,

personally met with Miller after a referral from Nickel

to determine whether he should be placed in Dis-

ciplinary Segregation or within CCI’s Special Manage-

ment Unit (“SMU”); Bath, Boodry, Herbrand, Johnson,

Millard, Quade, Severson were the prison security staff

on duty the day of Miller’s suicide. Millard made

rounds in the SMU at 11:00 p.m. on the night in

question and saw Miller on the floor of his cell but that

nothing appeared amiss. Severson found Miller on

the floor with no pulse and a ligature around his neck

at 11:58 p.m. Quade arrived next, called the control

booth, and asked why no alarm had sounded. Bath

arrived to see Miller lying on his back with white cloth

around his neck and ran to the control booth to get a

rescue knife. Boodry directed Bath to return to the

control booth and get a shield before entering Miller’s cell.

The first prong of the qualified immunity analysis

requires the Court to determine whether plaintiff ade-

8 No. 11-3233

quately pleaded a constitutional violation against each

defendant. It is plausible that both Nickel and Tobiasz

had actual knowledge that Miller was a suicide risk.

Nickel reviewed Miller’s file that indisputably con-

tained his history of self-harm and suicide attempts.

While Tobiasz did not review Miller’s file, he met with

Miller and was aware of his history of self-harm and

chose to place him in the SMU. Both the Supreme Court

and the Seventh Circuit have held that “[i]f the circum-

stances suggest that the defendant-official being sued

had been exposed to information concerning the risk

and thus ‘must have known’ about it, then such

evidence could be sufficient to permit a trier of fact to

find that the defendant official had actual knowledge of

the risk.” Sanville, 266 F.3d at 737 (quoting Farmer, 511

U.S. at 842). Thus, with respect to Nickel and Tobiasz

this Court should proceed to determine whether they

took reasonable steps to prevent the harm.

The complaint alleges that the security officers knew

or should have known of Miller’s mental illness and

suicide attempts because he was adjudicated mentally

ill, had court-ordered medications which he refused to

take at 8:30 p.m. the night he died, and he had a

well documented history of suicidal behavior. These

allegations along with the fact that Miller was housed

in the SMU, where inmates in need of greater super-

vision are placed, support the reasonable inference that

the security officers were exposed to information con-

cerning Miller’s suicide risk. While discovery may prove

otherwise, their knowledge of the risk can reasonably

be inferred at this very early stage of the litigation.

No. 11-3233 9

The next part of the deliberate indifference analysis

for determining whether plaintiff adequately pleaded a

constitutional violation is whether the defendants took

reasonable steps to prevent the harm. Plaintiff alleges

that Nickel took no action to assure Miller’s safety, but

also alleges that she referred Miller to the PSU, noted

that he should be on psychiatric medication and denied

access to “incapacitating agents.” Thus, according to the

allegations in the complaint, Nickel did take some ac-

tion. It is unclear what more Nickel had the authority

to do. While she maybe could have communicated

Miller’s condition better, that is perhaps only negligence

and even gross negligence does not state a claim for

deliberate indifference. Yet, at the same time viewing

the allegations in the light most favorable to plaintiff,

it is plausible that Nickel’s omission of Miller’s condi-

tion and history from her transfer form constituted indif-

ference to the risk of serious harm. With respect to

Tobaisz, although his report suggests that he had not

reviewed Miller’s chart and file, presumably he would

have greater access to Miller’s chart and file from WRC

as a medical professional than the security defendants.

At the pleading stage, it is perhaps more prudent to

allow plaintiff to proceed with discovery on this claim.

Plaintiff also alleges sufficient facts to suggest that

the security defendants failed to take reasonable steps

to prevent the harm. According to the complaint, the

security officers failed to call for medical attention

despite finding Miller with no pulse and not breathing

on the floor of his cell with a white cloth wrapped around

his neck. Plaintiff further alleges that the security officers

10 No. 11-3233

waited to assemble an entry team and then applied re-

straints before removing the ligature from around

Miller’s neck.

Having established that plaintiff has alleged facts that,

if proven, show the defendants violated a constitutional

right, we must evaluate whether they would be entitled

to qualified immunity under the second prong of the

qualified immunity analysis; that the constitutional

right must be clearly established. The defendants urge

this Court to apply a very high threshold for this prong.

They argue for an examination of this prong in such

a specific manner that virtually nothing besides inten-

tionally harmful actions could be “clearly established.”

Under defendants’ analysis, for a right to be clearly

established there must be precedent holding that a

prisoner has a constitutional right specific to the

conduct alleged. However, the cases in this circuit have

understood the term “right” in a broader sense. For

example, in Cavalieri v. Shepard, we stated that the right

that Cavalieri was asserting is “the right to be free from

deliberate indifference to suicide.” 321 F.3d 616, 623 (7th

Cir. 2003) (citing Hall v. Ryan, 957 F.2d 402, 406 (7th Cir.

1992). Here, plaintiff asserts the same right. We there-

fore conclude that that right was clearly established in

2009 as it was in 1998. See also Sanville v. McCaughtry,

266 F.3d 724 (7th Cir. 2001).

For the reasons stated herein, we affirm the denial

of dismissal based on qualified immunity for the

defendants-appellants.

A FFIRMED.

No. 11-3233 11

M ANION, Circuit Judge, concurring in part, dissenting

in part. I concur with the court’s conclusion that, at this

early stage of the proceedings, defendants Nickel,

Tobiasz, Millard, and Severson should not be granted

qualified immunity. As I see it, however, the remaining

defendants (Bath, Boodry, Herbrand, Johnson, and Quade)

are entitled to qualified immunity. Therefore, I concur

in part and dissent in part.

Jessie Miller led a tragically short and troubled life.

Exposed to cocaine while in utero, Miller was born into

a broken home on December 3, 1987. He soon became a

ward of the state and spent his childhood years rotating

through 54 foster homes. Miller was also physically and

sexually abused and, not surprisingly, developed numer-

ous mental health issues. He jumped from the top of a

three-story building at age 16, which signaled the

genesis of what would become a veritable obsession

with suicide attempts and ideation. Those attempts

appeared to increase in frequency and severity after

Miller was incarcerated, culminating in his final,

successful attempt at the Columbia Correctional

Institute (“CCI”) on June 22, 2009.

As the court correctly notes, at this preliminary stage

we must determine whether the plaintiff has pleaded

“sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The

court correctly recites the qualified-immunity standard;

that is, we must determine whether a constitutional right

12 No. 11-3233

was violated and whether the right in question was

clearly established at the time of the incident. Pearson

v. Callahan, 555 U.S. 223, 232, 236 (2009).

The plaintiff claims that the defendants subjected

Miller to cruel and unusual punishment under the Eighth

Amendment, as applied to the states by the Fourteenth

Amendment. Specifically, the plaintiff claims that the

defendants deprived Miller of proper supervision and

care. The Supreme Court has recognized that certain

deprivations fall under the cruel-and-unusual rubric. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994). A depriva-

tion claim has two elements, one objective and one sub-

jective. First, the deprivation must be, objectively, suffi-

ciently serious. Second, the prison official’s subjective

state of mind must have been one of deliberate indif-

ference to an inmate’s health or safety. Sanville v.

McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001).

There is no question that the first element was suffi-

ciently pleaded. We have held elsewhere that the risk of

suicide is a serious harm. Id. Therefore, where prison

officials deprive a prisoner who has known suicidal

tendencies of the necessary medical and preventive care,

and then that prisoner actually commits suicide, the

prisoner has suffered a serious harm and thus “clearly

satisfies the first element.” Id. The second element, how-

ever, requires a more in-depth analysis. We must look

at each defendant to determine whether the plaintiff

has sufficiently pleaded that they were deliberately

indifferent to Miller’s health and safety. In doing so, the

court must apply the following standard:

No. 11-3233 13

“[A] prison official cannot be found liable under

the Eighth Amendment for denying an inmate

humane conditions of confinement unless the official

knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must

also draw the inference.”

Farmer, 511 U.S. at 837. The question, then, is whether

the plaintiff has sufficiently pleaded facts that support

allegations that each official subjectively knew that there

was a substantial risk that Miller would commit suicide,

yet failed to take reasonable steps to prevent him from

doing so. Sanville, 266 F.3d at 737.

As the court carefully notes, the plaintiff has pleaded

sufficient facts to show that Nickel and Tobiasz were

aware, or should have been aware, of Miller’s condition

and that they recognized his need for heightened care

and scrutiny. Therefore, the court correctly affirmed the

district court’s denial of qualified immunity. Perhaps

Millard and Severson did not have the same detailed

knowledge of Miller’s condition, but it is reasonable at

this stage of the proceedings to impute knowledge of

Miller’s suicidal tendencies to those two officers who

were on patrol in the area of the prison where Miller

was incarcerated—Housing Unit 7 of the Special Manage-

ment Unit—just before and at the time Miller’s suicide

occurred. I agree that the plaintiffs have pleaded

sufficient facts that, taken as true, could indicate a failure

of either or both of them to prevent Miller’s suicide.

14 No. 11-3233

Therefore, I join the court’s opinion to deny qualified

immunity to Millard and Severson at this preliminary

stage.

But it is clear from the pleadings and the attached

documentation that defendants Bath, Boodry, Herbrand,

Johnson, and Quade were not patrolling Housing Unit 7

on the night that Miller committed suicide. Rather, those

defendants were assigned to other areas of CCI and only

responded after Severson placed an emergency radio

call after he found Miller unresponsive in his cell. The

complaint contains no allegation that these response

team officers even knew of Miller’s existence—let alone

his suicidal tendencies.

Yet the court imputes the same knowledge to the re-

sponse team officers as it did to Millard and Severson

simply because the complaint alleges that the response

team officers knew or should have known of Miller’s

suicidal tendencies and the related warning signs. (Op.

at 8.) That is not a plausible allegation, and the court

should ignore it. We require “actual knowledge” on

the part of prison officials to satisfy the subjective compo-

nent of a deprivation claim. Sanville, 266 F.3d at 737.

We may impute actual knowledge to prison officials

“[i]f ‘the circumstances suggest that the defendant-official

being sued had been exposed to information con-

cerning the risk and thus must have known about it.’ ” Id.

(quoting Farmer, 511 U.S. at 842). But the complaint does

not point to any such circumstance in this case. The

court’s opinion would require prison security guards to

have knowledge of every single inmate’s health issues

No. 11-3233 15

in the entire facility—even those in areas of the facility

that the officers are not patrolling. Moreover, prison

security guards would need to gain that knowledge

almost immediately on an inmate’s transfer into the

facility (recall that Miller committed suicide a mere

three days after transferring to CCI). A fair reading of

the “actual knowledge” standard does not stretch a

security guard’s responsibility that far.

But even if the response team officers could be

charged with some knowledge of Miller’s suicidal ten-

dencies, the plaintiff still has not sufficiently pleaded

that those officers acted unreasonably. The essence of

the plaintiff’s allegations against the response team

officers is that the officers failed “to react quickly upon

seeing an inmate with a bed sheet wrapped around

his neck.” The pleadings and supporting documentation

do not support this conclusory assertion.

It is undisputed that Severson placed an emergency

radio call at 11:58 p.m. on June 22, 2009, informing

other officers that Miller was laying unresponsive in

his cell. Officers Quade, Bath, Herbrand, and Boodry

responded to Housing Unit 7 within a few minutes of

this call. On arrival, Bath briefly returned to the control

room to get a rescue knife while Boodry retrieved a plexi-

glass shield. Within four minutes of receiving the

radio call, the officers performed an “emergency cell

entry,” securing Miller’s body with restraints while

cutting away the ligature from around his neck. All of

this occurred without waiting for Johnson—the senior

officer—who arrived on the scene at 12:07 a.m.

16 No. 11-3233

The plaintiff complains that the officers took too long

to enter Miller’s cell, alleging that Bath’s and Boodry’s

retrieval of the rescue knife and plexi-glass shield caused

an undue delay in reaching the unresponsive Miller.

Further, the plaintiff alleges that the officers acted unrea-

sonably in their attempts to prevent Miller’s suicide

because they restrained Miller before cutting away the

ligature. Neither of these allegations, taken as true, sup-

ports the argument that the response team officers

acted unreasonably. As we have noted elsewhere, “[a]ll

that can be expected is that guards act responsibly

under the circumstances that confront them.” Riccardo v.

Rausch, 375 F.3d 521, 525 (7th Cir. 2004). This necessarily

requires guards to “discriminate between serious risks

of harm and feigned or imagined ones, which is not an

easy task given the brief time and scant information

available to make each of the many decisions that fill

every day’s work.” Id. Because the alleged time period

between the emergency radio call and the response

team’s entry into Miller’s cell was so short, and the offi-

cers’ alleged actions that caused the minor delays

were eminently reasonable and necessary to ensure the

officers’ (and Miller’s) safety, the plaintiff has failed

to plead sufficient facts that, even taken as true, could

plausibly show that the response team officers failed

to take reasonable steps to prevent Miller’s suicide.

In sum, I concur with the court’s conclusion that defen-

dants Nickel, Tobiasz, Millard, and Severson are not

entitled to a qualified-immunity defense at this stage of

the proceedings. But based on the foregoing analysis,

the response team officers—Bath, Boodry, Herbrand,

No. 11-3233 17

Johnson, and Quade—are entitled to qualified immunity.

Therefore, I respectfully dissent from that part of the

court’s opinion.

5-24-12