# Thomas L. Bowers, Administrator of the Estate of Marguerite Anne Bowers, Deceased v. Robert A. Devito, M.D. > Court of Appeals for the Seventh Circuit · September 2, 1982 · 686 F.2d 616 URL: https://www.frixlaw.com/law-library/cases/9469613 ## Case - **Full name:** Thomas L. BOWERS, Administrator of the Estate of Marguerite Anne Bowers, Deceased, Plaintiff, v. Robert A. DeVITO, M.D., Et Al., Defendants - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** September 2, 1982 - **Citations:** 686 F.2d 616 - **Precedential status:** Published - **Opinion:** Dissent by Wood - **Judges:** Pell, Wood, Posner - **Cited by:** 360 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469613 ## How later opinions describe it (automated extraction) - holding state facility acted affirmatively when it released a schizophrenic man who murdered someone one year later because “[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was mere… - finding that no right had been violated when inmate who had repeatedly attacked women with knives was released from commitment and subsequently killed a woman with a knife - holding that when the State puts an individual in a position of danger from the acts of a third party, the State may be liable under § 1983 - affirming summary judgment for defendants in a suit based on. a murder committed by an offender released from mental health center where he had been committed after being found not guilty by reason of insanity for earlier murder ## Opinion text HARLINGTON WOOD, Jr., Circuit Judge, dissenting. I respectfully dissent because I am concerned about this case sliding by us under Fed.R.App.P. 34 dispensing with oral argument after it was disposed of on motions in the district court. The problems are current and I believe deserve to be more fully developed factually and legally. After that I might adopt the majority view, but I am not confident of that position now. To put it bluntly, a schizophrenic with a history of criminal violence was turned loose on the public after a short detention with the opportunity to do it again, and he took advantage of that opportunity. It appears that Vanda in connection with a 1969 conviction had been diagnosed as a “borderline psychotic.” In a 1970 conviction for a knife attack on a minor, he was diagnosed as a “schizoid personality.” Then, after those forecasts of future trouble, Vanda was charged in 1971 with the knife murder of a minor. The schizophrenic diagnosis was again confirmed; and again confirmed in 1974. In 1975 he was found not guilty of that murder by reason of insanity and committed to the Illinois Department of Mental Health. However, less than a year later he was certified as no longer dangerous to himself or others and discharged under an aftercare plan to the Family Service and Mental Health Center of Oak Park. Under that plan he lived elsewhere but showed up at the Center periodically for medication and counseling. Vanda, after about a year, while enjoying the freedom of that program, attacked and killed the plaintiff’s decedent with a knife. Those familiar with Vanda surely could not have been totally surprised by his latest violence. The plaintiff charges the state and private defendants, in their treatment and supervision of Vanda, with wilful, malicious, callous, and reckless indifference, and with disregard for decedent’s safety and life, all in violation of the Fourteenth Amendment. Martinez v. California, 444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), which the majority notes, was narrowly written to apply to a parole release, nevertheless admittedly has a strong impact on this case. As noted by the majority, plaintiff argues that the Martinez parole standard should not apply to a person who has committed a murder, but after being found not guilty by reason of insanity, is committed to a mental health facility. Had Vanda not been found insane, the public could have rightfully expected him to have been found guilty and thereafter to have been protected from him for a substantial period of years. But, instead, having been found insane, Vanda was put back on the street in about a year, a potential public menace. The standard applicable to Vanda for his release from a mental facility, whatever it is, I assume is one based on established professional criteria developed by medical science. It is not the same type of judgment made by a parole board based primarily on the inmate’s past history and institutional behavior. I doubt if a schizophrenic, like Vanda, can be expected merely to “have learned his lesson,” be habilitated, and thereafter be transformed into a law abiding citizen. . In the depositions of some of the defendants, it is admitted that Vanda’s condition *620 produced a pronounced potential for violence and that he was one of only a few patients from among thousands of others in custody with that same dangerous potential. There was also some agreement among defendants that a schizophrenic, like Vanda, cannot be cured and that a relapse into active schizophrenia could result in extreme violence. I believe these unique problems, not found in the ordinary parole situation, need the exploration of a trial. Martinez must further be considered because in that case, even though only months intervened between parole release and murder, it was found to be too remote. Again, there is a distinction because in the present case the release of Vanda by the state defendants was conditioned upon continuing treatment for him by private defendants at the Center. There is obviously some close relationship between the state and private programs. Vanda was still a part of the program when he murdered his next victim. I would, therefore, not view his latest violence as a remote occurrence based on time alone. Martinez also notes that the parole board was not aware that the next victim in that case was in any special danger as distinguished from the public at large. So far as I am aware, the defendants in the present case likewise had no reason to be aware of any special danger for the particular victim. Possibly the ordinary criminal on parole may in some circumstance exercise discretion over his choice of victims. If so, a parole board might, at times, have some warning that a particular inmate, motivated by revenge, for instance, might have designs on a particular victim. A schizophrenic, however, may not be able to exercise that same criminal discretion so that his choice of victims may be as large as the public itself. Knowledge of special danger to a particular person in parole cases may not be relevant in mental cases. Then there is the brief affidavit of the recognized expert. Over a third of the affidavit lists his impressive distinctions, but on its merits, I find the remainder of the affidavit to be less than impressive. The expert’s general conclusion is that the conduct of the private defendants was in accordance with applicable professional standards of medical and psychiatric care. That conclusion is based upon a review of the records and depositions. There is no suggestion that the expert interviewed the defendants or Vanda. The affidavit does not even identify the malady with which Vanda was afflicted, nor suggest what the proper treatment of it may be, what results can ordinarily be expected, or what the prevailing standard may be against which a fact-finder might have some basis to measure the particular conduct of the private defendants. I view the affidavit as little more than one doctor putting in a good word for another member of his profession. For some reason the plaintiff did not respond to the affidavit, in Judge Aspen’s words, in a “meaningful manner.” Even so, I do not believe the affidavit is sufficient to form an adequate basis for summary judgment in this situation. This case for me is in a gray area, but on the basis of the present record and state of the law, I am not prepared to conclude that plaintiff cannot possibly be entitled to relief under any facts which might be proved in support of his allegations. I would give him the chance to try to make his case in court. Therefore, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469613. Public record. Not legal advice.