Cheryl Miller v. Dr. Jolene Harbaug

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3418

C HERYL M ILLER,

Plaintiff-Appellant,

v.

JOLENE H ARBAUGH, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 C 5381—Suzanne B. Conlon, Judge.

A RGUED S EPTEMBER 19, 2012—D ECIDED O CTOBER 19, 2012

Before B AUER, K ANNE, and W OOD , Circuit Judges.

W OOD , Circuit Judge. The State of Illinois, through

its Department of Juvenile Justice, runs a number of

youth detention facilities, to which minors convicted in

juvenile delinquency proceedings may be committed if a

less restrictive option is not appropriate. See Juvenile

Court Act of 1987, 705 ILCS 405/5-750(1). This case

involves the sad fate of one such minor, Jamal Miller,

who was incarcerated at Illinois Youth Center (IYC)

2 No. 11-3418

St. Charles, and briefly at IYC Kewanee, at the age of 16.

Jamal had a history of mental illness and was known to

have attempted suicide at least three times. Sometime in

the early morning of September 1, 2009, Jamal hanged

himself from the top bunk in his room. He was not dis-

covered in time to save him. The present lawsuit, brought

by his mother on her own behalf and as his representa-

tive, accuses a number of state officials of deliberate

indifference to Jamal’s serious mental illness, in violation

of his Fourteenth Amendment rights (analogous for this

purpose to Eighth Amendment rights). The district court

granted summary judgment for the defendants, and

we affirm.

I

When Jamal arrived at IYC St. Charles in November

2008, the Reception and Classification Unit, which deter-

mines where new residents will be housed and what

services they require, referred him for assessment by a

mental health professional. Dr. Mallikarjuna Kanneganti,

a private psychiatrist, conducted Jamal’s assessment.

His conclusions were grim: he noted in his report that

Jamal had a history of Attention Deficit Hyperactivity

Disorder, major depression, bipolar disorder, psychosis,

behavior disorders, and anger and drug abuse coun-

seling. Over the years, Jamal had taken numerous psycho-

tropic medications. His behavioral history included

delinquency, gang affiliations, anger, aggression, setting

of fires, cruelty to animals, putting a gun to a cousin’s

head, threatening to kill teachers, learning disabilities,

No. 11-3418 3

alcohol abuse, and cannabis use. This array of problems

had resulted in five hospitalizations, most recently

about five months earlier, when Jamal had tried to

commit suicide by cutting himself with a machete.

Dr. Kanneganti also recorded an additional suicide

attempt in January 2007, when Jamal had tried to

suffocate himself with a pillow, and another when Jamal

had tried to hang himself. For his part, Jamal denied that

he had manic or depressive symptoms, that he was de-

pressed, or that he had experienced suicidal thoughts

since his June 2008 attempt. Dr. Kanneganti decided

to prescribe Prozac and lithium for him.

Initially, Jamal was assigned to IYC St. Charles’s

Special Treatment Unit, which is reserved for residents

with chronic mental health disorders involving mild

to moderate symptoms and “manageable” suicide risk.

After a short time there, the classification personnel

recommended that Jamal be transferred to the substance

abuse program in the Special Treatment Unit at IYC

Kewanee. The latter unit was reserved for residents

with acute mental health disorders and moderate to

high suicide risk, though it was also the only unit with

a program that combined mental health treatment and

substance abuse treatment. Dr. Jennifer Jaworski (one

of the defendants in our case), the Behavioral Health

Services Administrator for the Department as a whole,

approved the transfer, and so Jamal was moved to

IYC Kewanee in February 2009.

In April 2009, the Kewanee staff placed Jamal on

suicide watch, in response to his assault of another

4 No. 11-3418

resident and his statement that he was “going to make it

worse for [him]self.” Five days later, the watch was

ended, after he denied any current suicidal or homicidal

thoughts. In May 2009, Dr. Victor Kersey, a clinical psy-

chologist normally assigned to IYC Kewanee and another

defendant, returned from a one-year stint in Iraq. Only

then did he become acquainted with Jamal, largely

through Jamal’s disciplinary infractions. He also learned

through his staff that Jamal was not complying with

the rules of the Mental Illness Substance Abuse

(MISA) program at Kewanee. This noncompliance

resulted in Jamal’s dismissal from the program for

30 days, while he stayed in the Special Treatment Unit

and was subject to a “behavior contract.” Jamal satis-

fied the terms of this contract and was re-admitted to

the MISA program. But his restoration was brief: he

misbehaved again, and after eight days he was kicked

out. All 24 members of Kewanee’s treatment staff, led

by Dr. Kersey, then met to decide what to do with

Jamal. They concluded that his biggest problems were

anger and aggression, and that he was otherwise stable.

Since he was not benefitting from the MISA program

at Kewanee, they recommended that he be transferred

back to IYC St. Charles. Dr. Kersey prepared a memoran-

dum explaining this decision; he shared the memo

with defendant Dr. Jolene Harbaugh, the head of mental

health services at St. Charles, and Dr. Jaworski. Persuaded

that Jamal should be returned to St. Charles, Dr. Jaworski

gave her approval, and the transfer took place on

August 5, 2009.

Back at St. Charles, Jamal was screened again the day

after his arrival for risk of suicide and was found to be

No. 11-3418 5

stable. Three days later, Dr. Kanneganti evaluated him

and also found him not to be suicidal. During that

meeting, Jamal asked if he could be taken off the medica-

tions he had been taking for his mental disorders, and

Dr. Kanneganti agreed to do so. The doctor later ex-

plained that in his view, Jamal did not meet the criteria

for forced medication because he was not gravely

disabled nor did he pose a likelihood of harm to himself

or others. On August 9, Jamal was transferred to a

different housing unit and placed alone in a room with

a metal-frame bunk bed. There was no mattress on the

top bunk. At that time, single-bed rooms were available

elsewhere in the St. Charles facility.

On August 12, 18, 25, and 28, Jamal saw a psychologist

at St. Charles for mental health treatment. In a report

written on August 29 and signed on August 31, the psy-

chologist reported that Jamal seemed oriented, alert,

confident, and stable, and that he showed no signs of

suicidal ideation, hallucinations, or other severe mental

illness. Unfortunately, his assessment proved to be wrong.

An incident that took place during the afternoon of

August 31 seems to have triggered the events that led

to Jamal’s suicide. Around 4:30 p.m., Juvenile Justice

Specialist (JJS) Natalie Finley asked the residents to

line up after dinner to go to the gym. Jamal became

disruptive and started to argue with her. She told him

to quiet down and get in line; JJS Sean Kincade came

over to help. Later that evening, Jamal apologized to

Finley, and she responded that tomorrow is a new day.

At 10:00 p.m., JJS Marcia Kozel started her shift. She was

6 No. 11-3418

supposed to conduct safety checks of the rooms every

15 minutes; this involved shining her flashlight into the

room and recording her checks. When she started her

check at 3:09 a.m., the residents were all asleep and

the lights were out. She checked A wing first, and then

B wing, where Jamal’s room was located. When she

got there, she looked in the window and thought that

she saw him in a squatting position. She turned away,

continued her rounds, and then passed his room on the

way back. At that point she realized that something

was wrong: Jamal’s face was against the top of the bunk

and there was something around his neck. Kozel immedi-

ately called an emergency code over her radio and ran

for help. She and another specialist entered his room,

found him hanging from the top bunk with a sheet, and cut

him down. They started CPR; a nurse came to help; and

eventually paramedics arrived. It was too late, however.

Before his death, Jamal had posted notes on the walls

and door of his cell. One of them was directed to

Finley. It said that she “pushed [him] over the edge.” He

also put a note reading “RIP Jamal Damerco Miller” on

his door, but Kozel testified that she did not see it.

II

On August 26, 2010, Miller filed the present lawsuit

under 42 U.S.C. § 1983 and state law against the various

Departmental and institutional actors who allegedly

had some part to play in Jamal’s death. Although she

initially named others, in this appeal she has whittled

the list down to five people: Kurt Friedenauer, the acting

No. 11-3418 7

director of the Department at the time of Jamal’s death;

Bobby Moore, the superintendent of IYC St. Charles

at the relevant time; Dr. Jaworski, the Behavioral

Health Services Administrator for the Department;

Dr. Harbaugh, the Treatment Administrator at IYC

St. Charles, and thus the person responsible for

overseeing all health services there; and Dr. Kersey,

the clinical psychologist at IYC Kewanee who recom-

mended Jamal’s transfer back to IYC St. Charles.

The district court granted the defendants’ motion for

summary judgment in an order dated October 19, 2011, in

which it dismissed the federal claims with prejudice

and opted not to exercise supplemental jurisdiction

over the state claims and thus dismissed them with-

out prejudice. Because Miller’s theory with respect to

Friedenauer, Moore, Jaworski, and Harbaugh focused on

their adoption of policies—notably the use of bunk beds

for potentially suicidal residents—the district court

referred to them as the “supervisory defendants.” Because

there is no vicarious liability under Section 1983, these

defendants could be liable only if they personally did

something that violated Jamal’s rights. The court recog-

nized that an official may be liable if he or she is responsi-

ble for a systematic condition that violates the Constitu-

tion, or for a failure to intervene. Nevertheless, the

court concluded, even assuming that the use of the

bunk beds violated the Constitution and the necessary

personal involvement was shown, the four supervisory

defendants were entitled to qualified immunity. In the

district court’s opinion, no clearly established law indi-

cated that the suicide prevention measures in place at

8 No. 11-3418

IYC St. Charles were inadequate for purposes of the

Fourteenth and Eighth Amendments. As for Dr. Kersey,

the court found no evidence in the record that would

permit a trier of fact to find that he was deliberately

indifferent when he decided to transfer Jamal from

IYC Kewanee back to IYC St. Charles. Since that was

Miller’s only theory with respect to him, the court con-

cluded that he was entitled to summary judgment.

III

A

In her appeal from the judgments in favor of the super-

visory defendants, Miller asserts that the district court

erred in several respects: first, in its holding that their

use of the bunk beds was not deliberately indifferent

to Jamal’s rights under the Eighth and Fourteenth Amend-

ments; second, in its holding that Miller could not

prevail unless she could prove that Jamal faced a

present or imminent risk of suicide; and third, in its

finding that the supervisory defendants were entitled to

qualified immunity. (For convenience, we refer only to

the Eighth Amendment in the discussion that follows,

even though we recognize that juvenile facilities may

not be administering the kind of “punishment” that is

given to adult prisoners. The standards under the Four-

teenth and Eighth Amendments do not differ for our

purposes.) All of these points overlap, however. One

must show that the plaintiff has alleged a violation of a

constitutional right to overcome an assertion of qualified

immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

No. 11-3418 9

The question whether the duty to take more active anti-

suicide measures arises only when the risk is imminent

informs the question whether these defendants have

violated Jamal’s constitutional rights. The remainder of

the qualified immunity defense—whether the rights in

question were clearly established—also depends on

what rights are at stake. We thus consider all three

points together.

Miller’s primary argument is that the kind of bunk

bed that was in use at IYC St. Charles was, in effect, a

death trap for any resident inclined to suicide. And, she

continues, St. Charles housed a great number of such

people. From 2000 up until the date of Jamal’s death, there

were 2,929 total suicide attempts at that facility alone.

System-wide, of that number there were 625 “moderately

serious” attempts, and 169 “serious” attempts. Six resi-

dents actually did commit suicide, and three of those

(including one at St. Charles) were accomplished by

hanging from the same type of metal-frame bunk bed

that Jamal used. Within a day or so of Jamal’s death, the

Special Treatment Unit at St. Charles was re-designated

as single-bunk only. Shortly thereafter, Superintendent

Moore made an emergency funding request to replace

all of the bunk beds at St. Charles with single beds,

and that request was granted and eventually implemented.

Director Friedenauer acknowledged in his deposition

testimony that the Department knew that the metal-

frame bunk beds might be used for suicide. He also knew

that there had been other attempts before Jamal’s death,

including some involving the bunk beds. The beds had

10 No. 11-3418

not been replaced, however, because despite his efforts,

he could not obtain funding from the Illinois legislature

to do so. Superintendent Moore was also aware that the

bunk beds could be used for suicides. He, too, mentioned

the lack of funding during the time before Jamal’s

death. Immediately afterwards, however, Moore desig-

nated the Special Treatment Unit at St. Charles as single-

bed only, and he ordered new beds.

Miller collected evidence showing that it would have

been relatively easy to dismantle the metal bunk beds

so as to eliminate the top bunk. They were modular

and, she asserts, could have been taken apart and con-

verted to single beds. (Other testimony indicated that

the task involved more than a simple screwdriver:

Moore noted that the beds were secured to the wall

and thus removal required some effort.) Miller pointed

to a report by the John Howard Association (which ad-

vertises itself as a group that “works to achieve a fair,

humane and cost-effective criminal justice system by

promoting adult and juvenile prison reform” on its

website, www.thejha.org). The Association reported that

the bunk beds were an obvious danger. (Interestingly,

in a report of a monitoring visit to St. Charles issued

May 17, 2011, the Association complained that the

facility as of that time had still not eliminated the bunk

beds. Only in the report of its visit on April 3, 2012, did

it find that all of the problematic beds had been replaced.)

In their brief, the supervisory defendants point out

that neither the Department nor IYC St. Charles was

indifferent to the risk of suicide. Superintendent Moore

No. 11-3418 11

recommended to Director Friedenauer that the Master

Plan for the Department (which had split off from the

Illinois Department of Corrections only in 2005) should

include replacing the living units at St. Charles. He identi-

fied a number of features of the rooms that could be used

for self-harm, including not only the bunk beds, but

also the sinks, toilets, and vents. Friedenauer followed

through with a recommendation in the 2007 Master

Plan for new single-bed living units, but the legislature

did not respond. Indeed, in 2009 the entire repair and

maintenance budget for the Department was only $150,000.

Director Friedenauer took other measures, however,

while he was pursuing capital improvements. He put

in place protocols for mental health assessments, he

put suicide prevention on the agenda at almost every

quarterly meeting, he required suicide prevention

meetings at each facility, he developed a training video

for this purpose, and he ordered every staff member to

carry a “Knife for Life” that could be used in emergencies

such as Jamal’s. In addition, the staff at St. Charles con-

ducted cell checks every 15 minutes throughout the

day and night, and the record demonstrates that

Jamal’s cell was properly checked.

In order to defeat the defendants’ summary judgment

motion on her Eighth Amendment claim, Miller had to

present evidence that would permit a finding that the

defendants were subjectively aware of the risks posed

by the bunk beds to persons with a history comparable

to Jamal’s and that they recklessly failed to take appro-

priate steps to alleviate that risk. See Farmer v. Brennan, 511

12 No. 11-3418

U.S. 825, 843 (1994); Frake v. City of Chicago, 210 F.3d 779,

781-82 (7th Cir. 2000). With respect to the latter point,

we have held that defendants cannot be thought to be

reckless if the remedial step was not within their power.

See Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997)

(“officials do not act with ‘deliberate indifference’ if

they are helpless to correct the protested conditions”). On

the other hand, the Supreme Court has intimated that

an argument that rests solely on fiscal constraints cannot

negate a finding that “cruel and unusual punishment”

is being imposed. Wilson v. Seiter, 501 U.S. 294, 301-02

(1991).

We are willing to assume, for present purposes, that

Miller presented enough evidence to support a finding

that the supervisory defendants were subjectively

aware of the suicide risks posed by the bunk beds and

that alternate measures such as dismantling them or

assigning residents to single-bed rooms were feasible.

We therefore have no need to decide whether the

evidence of the changes at St. Charles in the wake of

Jamal’s death was excludable as a subsequent remedial

measure for purposes of Federal Rule of Evidence 407,

or if it instead was admissible to show feasibility of

precautionary measures, as permitted by the rule. But

even if the evidence, viewed favorably to Miller, would

support a finding of a constitutional violation, we must

still consider the second part of the qualified immunity

inquiry—the question whether any duty the defendants

had was clearly established.

As the Supreme Court reaffirmed most recently in

Pearson v. Callahan, 555 U.S. 223 (2009), a plaintiff seeking

No. 11-3418 13

to defeat a defense of qualified immunity must establish

two things: first, that she has alleged a deprivation of a

constitutional right; and second, that the right in

question was “clearly established.” Id. at 232. Although

Saucier v. Katz, 533 U.S. 194 (2001), had dictated that these

questions always had to be considered in the order in

which we have stated them, the Court retreated from

that position in Pearson and returned to a regime

under which either issue could be taken up first. 555

U.S. at 236. We are therefore free to decide first whether

the right that Miller has alleged was clearly established.

In undertaking this analysis, it is critical to find the

correct level of specificity. It is not enough, for instance, to

say that it is clearly established that those operating

detention facilities must not engage in cruel or unusual

punishment. The way that the right is translated into

the particular setting makes a difference. The plaintiff

must show that the contours of the right are “sufficiently

clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987).

That is why it is not enough for Miller to show that

residents of juvenile detention facilities have a right not

to be housed in unsafe conditions. But what does the

law show about the duty of state officials to adopt mea-

sures designed to thwart the actions of a suicidal resi-

dent? We have held that prison officials violate the

Eighth Amendment if they are “cognizant of the sig-

nificant likelihood that an inmate may imminently seek

to take his own life” and then “fail to take reasonable

steps to prevent the inmate from performing this act.”

14 No. 11-3418

Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001)

(internal quotation marks omitted). In Cavalieri v.

Shepard, 321 F.3d 616 (7th Cir. 2003), we found that the

facts were disputed on the question whether a jail

official “was aware that [plaintiff’s son] was on the

verge of committing suicide.” Id. at 620. Prison officials

have also been found potentially liable where they failed

to take reasonable steps to remedy conditions such as

extreme cold or heat that posed a danger to all prisoners.

See Dixon, 114 F.3d at 642.

In asking us to hold that state officials violate the Con-

stitution when they fail to prevent the suicides of

inmates who are not actively or “imminently” suicidal,

however, Miller is asking us to extend the duties of the

facility’s officials in an important way. She also sug-

gests without support that the law has clearly estab-

lished which steps to avert suicides must be taken, on

pain of personal liability if they are not. We take these

points in turn.

It is one thing to impose a duty on detention facility

personnel or prison guards to intervene actively when

they see a resident or inmate who is, as we put it in

Cavalieri, on the verge of suicide. If the state officers can

observe or are told that their detainee is indeed so dis-

turbed that his next step is likely to be suicide, and yet

they do nothing, it is fair to say that they have gone

beyond mere negligence and entered the territory of the

deliberately indifferent. This is why Cavalieri and Sanville

spoke of “imminence” or “the verge” of action. If Miller

believes that this has not been the law of this circuit, she

No. 11-3418 15

is mistaken. If she is arguing instead that we should

change that standard, she has essentially conceded that

the rule she proposes is not clearly established. Mental

illness, including suicidal ideation, comes in many

degrees of severity. For those who have had only a

fleeting notion that suicide might be the answer, psychi-

atric care is normally the responsible option to take,

rather than putting that person in a padded cell under 24-

hour surveillance. Jamal’s case fell somewhere between

these two extremes. He had a lengthy history of mental

disturbances and disorders, wholly apart from the

question of suicide, and he had tried to take his own

life three times. At both times he entered IYC St. Charles,

he appeared to the professionals there who evaluated

him to be on a more solid footing. The law as it stood at

the time Jamal was being assessed by the St. Charles

personnel did not clearly require more from them.

It is possible, however, that Miller admits that much,

since her primary argument is that the true violation

here was St. Charles’s failure to house Jamal (and other

juveniles with histories of mental illness and suicide

attempts) in rooms without dangerous bunk beds. We

accept, as we must, the fact that the supervisory defen-

dants knew that the metal bunk beds had been, and could

be again, used by a resident for self-destruction. But so

could other items in the room. In this respect, the facts

of our case strongly resemble those in Frake. There, the

City of Chicago used jail cells that had horizontal bars.

Using his jacket, the decedent hanged himself from the

bar in his cell. 210 F.3d at 781. The decedent’s father

sued on the theory that the Chicago jails had a history

16 No. 11-3418

of inmates hanging themselves on those bars, and thus

that the City’s failure to redesign the cells represented

deliberate indifference. Id. at 782. We rejected that

theory, both because there was no allegation that

the decedent was actively suicidal at the time he was

admitted to the jail, and because (even recognizing that

no one wants even one suicide) the number of such

events was too small to give rise to constitutional liabil-

ity. Id. With respect to the latter point, we em-

phasized the fact that the City had taken other measures

to prevent suicides in the jail, including screening for

suicidal ideation, confiscation of items that could be

used for self-harm, and checking cells every 15 minutes. Id.

We understand that there are some differences be-

tween this case and Frake. Proportionally, the number of

suicides is higher here; the residents here are juveniles

whose mental health histories are well known; and there

is evidence that single beds were available. Had we

found deliberate indifference in Frake, this case would

have seemed to be a stronger application of the same

rule. But we did not. Furthermore, nothing in Frake indi-

cated under what circumstances a small number of sui-

cides might lead to liability. And cell design was not the

only variable in either case. In both Frake and in our

case, the detention authorities took other precautions

against the possibility that inmates or residents who

did not appear to be imminently suicidal might unex-

pectedly make an attempt. Any of the supervisory de-

fendants who read Frake would have thought that he or

she was acting within constitutional boundaries.

No. 11-3418 17

Even if IYC St. Charles’s decision to use the metal

bunk beds in rooms occupied by mentally disturbed,

but not imminently suicidal, residents amounted to

deliberate indifference, and thus amounted to a viola-

tion of Jamal’s constitutional rights, the law in this area

was not clearly established enough to defeat the super-

visory defendants’ claim of qualified immunity.

B

All that remains is the appeal against Dr. Kersey,

the psychologist at IYC Kewanee who authorized Jamal’s

transfer back to IYC St. Charles. Miller believes that this

was a deliberately indifferent act on Dr. Kersey’s part,

because he knew that St. Charles used the dangerous

bunk beds and he knew that Jamal was a suicide risk.

But Dr. Kersey’s involvement with Jamal was minimal,

and no rational trier of fact could find evidence of deliber-

ate indifference in it. Dr. Kersey had nothing to do

with Jamal at Kewanee until May 2009, when he

returned from his tour of duty in Iraq. At that point, he

became aware of Jamal’s unsuccessful participation in

the drug abuse program. After a meeting with the entire

24-person treatment staff of Kewanee, the collective

decision was that Jamal should be returned to St.

Charles. Perhaps this group was mistaken in its belief

that Jamal would do better in the less structured atmo-

sphere of St. Charles, but that does not demonstrate

deliberate indifference. Nor does Dr. Kersey’s memo

to Drs. Harbaugh and Jaworski explaining why the

staff had come to this conclusion demonstrate anything

18 No. 11-3418

close to deliberate indifference. Even assuming, as we

must, that Dr. Kersey knew that St. Charles was still

using the metal bunk beds, he had no idea which

room Jamal would be given or that St. Charles’s other

suicide prevention measures would prove to be inade-

quate.

IV

Jamal Miller was a very troubled young man, and it

is likely that everyone who cared for him regrets that

they were not able to forestall his suicide. But the fact

that more measures, or different measures, might have

been undertaken, and that those measures might have

been successful (though even this is not certain) is not

enough to support liability under the Constitution

against any of the defendants now before us. The

district court chose to dismiss Miller’s state claims with-

out prejudice, and we have no comment on how any

of them should be resolved. We therefore A FFIRM

the judgment of the district court.

10-19-12