Woodward, Harriett G v. Correctional Medical ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3147
HARRIETT G. WOODWARD, Special Administrator
of the Estate of Justin Farver, deceased,
Plaintiff-Appellee,
v.
CORRECTIONAL MEDICAL SERVICES
OF ILLINOIS, INC.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 6010—Robert W. Gettleman, Judge.
____________
ARGUED FEBRUARY 24, 2004—DECIDED MAY 17, 2004
____________
Before POSNER, RIPPLE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. After 23-year-old Justin Farver
hanged himself with a bed sheet while a pretrial detainee
at the Lake County (Illinois) jail, Harriet Woodward, his
grandmother and the special administrator of his estate,
sued Correctional Medical Services (“CMS,” a private
contractor hired by Lake County to provide medical and
mental health services at its jail), CMS agents—nurse
Karen Dean, social worker Joel Mollner, and Dr. Michael
2 No. 03-3147
Fernando—the sheriff of Lake County, and Alan Myres, a
Lake County deputy sheriff, under 42 U.S.C. § 1983 and
an Illinois wrongful death statute. During pretrial proceed-
ings, the Lake County sheriff and deputy Myres settled
with the estate and the estate dismissed its state law
wrongful death claims against the remaining defendants.
After a 3-week trial, a jury found that CMS and its social
worker, Mollner, acted with deliberate indifference to
Farver’s health and safety. The jury exonerated the other
two CMS agents, nurse Dean and Dr. Fernando. Compensa-
tory damages of $250,000 and punitive damages against
CMS totaling $1.5 million were awarded.
After the jury’s adverse verdict, CMS and Mollner moved
for judgment as a matter of law under Rule 50(b) and for a
new trial and a remittitur under Rule 59. The district court
(Judge Robert W. Gettleman) denied the motions. Citing the
deliberate indifference test for § 1983 liability under
Farmer v. Brennan, 511 U.S. 825 (1994), the judge found
that the estate “presented abundant evidence from which
the jury could conclude that Mollner and CMS met these
standards.” The judge also specifically found that the trial
testimony “allowed a reasonable jury to conclude that
[Mollner] was not credible” and that he “was deliberately
hostile to suicidal inmates including Justin.” Judge
Gettleman also concluded that CMS’s “management’s
deliberate indifference to its staff’s violations” of CMS’s
written policies and procedures was “sufficient to allow a
jury to conclude that CMS tolerated if not encouraged the
custom or practice that encompassed deliberate indifference
to the substantial danger posed to the life and health of
suicidal inmates including Justin.”
The judge also rejected evidentiary challenges to the
testimony of the estate’s expert, Dr. Robert Greifinger, find-
ing that “his testimony alone, in my view, would have
supported the jury’s verdict.” The judge also held that it
No. 03-3147 3
was proper to admit evidence that CMS nurses reported for
duty while under the influence of drugs and alcohol and
that CMS’s management was aware of that misconduct and
condoned it. In denying CMS’s motion for a remittitur,
Judge Gettleman found that punitive damages were
reasonable and “not out of line.” Both CMS and Mollner
appealed, but Mollner has settled up with the estate. So the
only matter before us at this time is CMS’s challenge to the
verdict against it. We view the facts, in this fact-intensive
case, in the light most favorable to the jury’s verdict.
In 1996, Lake County published a “request for proposals”
seeking bids from private contractors to provide medical
and mental health services to the inmates at its jail. Be-
cause incarcerated inmates present a well-recognized risk
of suicide, the county’s request for proposals mandated that
any service provider that contracted to provide mental and
medical health services at the jail would conduct prelimi-
nary screening of inmates to identify those who presented
a suicide risk. Lake County also required immediate
assessment of all high-risk inmates in its request for
proposals.
CMS submitted a bid proposal which contained detailed
representations of preliminary screening and assessment
services, including screening for potential suicide risks.
CMS represented to Lake County that health-trained per-
sonnel would perform all such screenings. Specifically,
CMS’s proposal promised that:
CMS will utilize a suicide identification form approved
by Lake County Jail officials to be completed by medical
personnel at the time of intake. Developed in 1985 by
jail suicide specialist Joe Rowan and adopted for CMS’s
use in 1986, this program has drastically reduced the
number of attempted and successful suicides in jail
populations.
4 No. 03-3147
If an inmate has been identified as suicidal or poten-
tially suicidal, immediate referral to the mental health
staff will be made so that appropriate housing and in-
tervention can be started.
Mr. Mollner will monitor inmates identified as at-risk
for self-harm frequently until he is able to verbalize
that they are no longer suicidal.
Training sessions will be offered to facility staff to sup-
port suicide prevention efforts.
In order to implement effectively its suicide prevention
program, CMS represented to Lake County that CMS would
recruit and hire trained and experienced employees,
hopefully ones with prior experience working in jails.
CMS, as it turned out, was the successful bidder, and
soon a contract was agreed to whereby it would be the sole
provider of mental and medical health services to inmates
at the Lake County jail. The contract incorporated the
terms and conditions set forth in Lake County’s request for
proposals and CMS’s responsive bid. In particular, CMS
agreed to provide a detailed and rigorous suicide risk iden-
tification and prevention program.
CMS promulgated its suicide identification and pre-
vention program in a policy and procedures manual. The
manual directed CMS employees to implement CMS’s pro-
cedures to identify and treat potentially suicidal inmates at
the earliest possible moment. Specifically, CMS mandated
that inmates be screened for suicide potential immediately
upon admission to the jail. CMS medical personnel were
required to perform the initial screening by completing a
mental health intake screening form designed to detect
potential suicide risks. The directive in CMS’s manual was
clear: “Whenever an inmate . . . reports a risk of self-
destructive behavior, immediate assistance will be pro-
vided.”
No. 03-3147 5
CMS’s mental health intake screening form consisted of
a single page divided into six sections: Suicide Potential
Screening, Psychiatric Screening, Behavioral Observations,
Summary, Disposition, and Comments. CMS policy dictates
that any employee administering the mental health screen-
ing and completing the CMS form was required to
be qualified to do so. CMS even produced an instructional
videotape that detailed how the form was to be used and
described the danger suicide potential presented in jail
settings. All CMS medical personnel were supposed to com-
plete suicide identification and prevention training as part
of their job orientation, and a critical portion of that
training was to watch the videotape. In the videotape,
according to a transcript of it admitted during the trial,
CMS employees are told:
Suicide is the tenth major cause of death in the
United States. Some studies indicate the risk among
inmates is 5 times higher than that within the commu-
nity.
We are responsible for the care and supervision of the
inmates in our custody. Care includes protecting the
inmate from himself or herself and from others. Care
includes ensuring access to needed medical treatment.
Since inmates are removed from their community
support systems, it is our responsibility that they have
support within the facility.
Do not take the easy way and mark a line through all
the no’s. It can be difficult to convince a jury that the
screening was completed in a thoughtful manner, or the
documentation suggests a cursory approach to the
screening process.
The intake mental health screening has been de-
signed to assist in identifying at-risk inmates upon
admission to the facility so appropriate measures can be
taken to minimize self-destructive . . . behavior. The
6 No. 03-3147
purpose of the screening process is to identify inmates
requiring further evaluation. If there is any doubt, the
inmate should be referred.
Expresses thoughts about killing self. Directly ask the
inmate, “Are you thinking about killing yourself?”
Although you may be uncomfortable asking this ques-
tion, research indicates that the most accurate way of
differentiating a suicidal from a nonsuicidal person is
by simply asking the person about suicidal thoughts.
Even if the inmate does not make direct suicide state-
ments, such as “I am thinking of killing myself” or
“I want to die,” you should be alert to indirect suicide
statements, such as “I won’t be a burden anymore,” “I
have nothing to live for,” or “No one will miss me while
I am gone.” These feelings should be explored by asking
the additional questions about potential suicidal
thoughts. Any direct or indirect suicidal statement
should be scored a yes. When this question is scored a
yes, notify your shift commander and refer to mental
health.
If there are any circles in the shaded areas or the to-
tal number of yes’s is 8 or more, your shift commander
should be alerted and the inmate referred for further
evaluation. If mental health staff are not on site, the
inmate should be placed in a protective environment
until the evaluation can be completed.
The intake screening form directed medical personnel to
alert the jail’s shift commander and to refer an inmate for
mental health evaluation whenever an inmate responded
“yes” to certain critical questions, including question num-
ber eight: “Expresses thoughts about killing self.” When an
inmate expressed thoughts of killing himself to the intake
screener, the screener’s training mandated that the inmate
be marked as “suicidal” and having an “acute mental health
problem.” The screener was also directed to refer the
No. 03-3147 7
inmate to “suicide prevention procedures,” including a
“mental health referral ASAP.”
CMS’s suicide prevention procedures included notifying
correction staff about the inmate’s suicide risk, housing the
inmate in a safe cell, and placing him on “suicide watch”
where he would be physically checked every 15 minutes by
correctional guards. CMS’s suicide prevention procedures
also dictated that a mental health evaluation be done as
quickly as possible. CMS’s policy further required its
employees to implement appropriate mental health treat-
ment after the mental health evaluation. Under CMS’s
written policy, its employees were required to continue
suicide precautions until a CMS mental health professional
determined that the treatment had eliminated the risk that
an inmate might attempt to take his own life.
Despite the explicit recognition that the risk of suicide
presented a unique and critical problem in a jail, the evi-
dence at trial showed that CMS routinely failed to comply
with its own directives on how risks were assessed and
monitored. Willie Clark, a CMS nurse, testified that the
environment at the jail was “very lax, unprofessional.” For
example, she testified that she was only made aware of
the policies and procedures manual after she asked for
it. Furthermore, CMS personnel purposely delayed ordering
prescribed medication for inmates in hopes that the inmates
would be transferred to the Department of Corrections and
out of CMS’s care.
Clark and another CMS nurse, Uleese Rachael Schreiner,
also testified that CMS routinely had a month-long backlog
of intake evaluation of inmates, contrary to written CMS
policy and procedures. Schreiner reported this situation to
nurse Therese Fryksdale, CMS’s “chief of health administra-
tion,” but nothing happened. Nurse Schreiner testified that
she was encouraged by her CMS supervisors to disregard
CMS’s written policy and procedures. Nurse Clark testified
8 No. 03-3147
that she “was instructed by my administrator [Fryksdale]
to go to booking and refuse people so that CMS would not
get stuck with medical bills, even if it seemed relatively
minor, because if they went out later, CMS would have to
pay for it if they were booked. So I was to try and turn
people away.” According to Clark, Fryksdale told her “we
don’t send people out until they’re at the point of imminent
death.” When Clark told Fryksdale this contradicted
written policy, Fryksdale responded, “I’m sorry, kiddo,
that’s the way it is.”
Nurse Clark also testified that she observed a CMS nurse
under the influence of drugs and incapable of performing
her duties and that she reported it to Fryksdale. Nurse
Clark, who had previously worked in an alcohol rehabilita-
tion center, further testified that she reported to Fryksdale
about another nurse who was under the influence of alcohol
at work and that Fryksdale acknowledged that this nurse
had alcohol impairment problems in the past. Nurse
Schreiner stated that she also observed nurses under the
influence of alcohol at work and reported this misconduct
repeatedly to Fryksdale, who ignored the situation, as well
as to Robert Morse, CMS’s regional director, who responded
that Schreiner should simply go home if she did not like to
work with impaired nurses. With this evidence in mind, we
turn to Justin Farver’s stay at the jail, which commenced on
September 24, 1998.
Farver arrived at the jail charged with attempted sexual
assault of his 12-year-old niece. Nurse Dean, who had never
done a mental health intake screening for CMS, was called
to the jail booking area to meet Farver soon after he
arrived. Dean had no prior experience in psychiatric nurs-
ing, mental health nursing, jail nursing, or suicide diagno-
sis. Moreover, she did not complete the 90-day orientation
program and did not document the completion of a single
element of the orientation checklist during the 60-day per-
iod she worked for CMS (nurses were required to check off
No. 03-3147 9
items on an orientation checklist as they completed them).
Dean, moreover, did not view the intake screening video-
tape and never read CMS’s policy and procedures relating
to intake screening, identifying risk of suicide behavior, or
handling identified candidates. Dean’s entire training for
how to conduct a mental health intake screening consisted
of observing a few intakes performed by a more experienced
nurse. Dean was told to follow the instructions on the
mental health intake form and to fill it out completely.
When Dean first met Farver, she immediately noticed,
among other things, that he had cerebral palsy which lim-
ited his dexterity and caused his hands to shake. Dean
asked Farver questions on the intake screening form, noting
“Yes” to question number 8, “Expresses thoughts of killing
self.” She also noted that Justin had a history of psychiatric
treatment and suicide attempts. Despite those responses,
Dean failed to complete the form by indicating that Farver
presented a suicide risk in the “Summary” or “Disposition”
sections. She also failed both to alert the jail’s shift com-
mander about Farver’s condition or refer him for an imme-
diate mental health evaluation. Due to these failings,
Farver was lodged into the jail without suicide precautions
and he was not put on the jail’s suicide watch. He was also
not referred for an expedited mental health evaluation, and
the correctional staff was not notified that he posed a
suicide risk.
Although Dean’s intake performance did not comply
with CMS’s manual, Susan Buckley, CMS regional vice-
president, testified that Dean “did a good job with that
intake form.” Dean’s direct supervisor, Fryksdale, ac-
knowledged that the intake directives regarding suicide
prevention were often ignored. She testified that Dean’s
failure to initiate suicide prevention measures in Farver’s
case was consistent with standard operating practice at the
jail.
10 No. 03-3147
Pursuant to a court order—presumably because he had
cerebral palsy (according to deputy Myres his hands were
always shaking and he had trouble walking)—Farver was
held in a cell in the jail’s “medical pod.” Inmate Larry
Dungey, in a cell next to Farver’s cell, regularly noticed that
Farver was depressed and that he frequently became upset
and cried. Farver even told Dungey, “I can’t take it any-
more.” During his entire stay, Farver was not placed on
“suicide watch,” which would have required a heightened
degree of supervision.
Despite CMS policy that required a prompt mental health
evaluation soon after the initial screening, 7 days went by
before Farver was evaluated by a mental health profes-
sional—CMS’s jail social worker, Mollner. CMS’s published
policy also required that medical records be complete and
available for review by the health care staff when treating
inmates. Mollner did not review Farver’s medical chart
before interviewing him. And that chart, it should be
recalled, included nurse Dean’s mental health intake
screening form, which documented Farver’s history of
mental health problems, psychiatric hospitalizations, and
suicide attempts.
Mollner acknowledged that a function of the mental
health evaluation, and the form that flowed from it, was to
provide subsequent treating professionals with knowledge
about a patient. Mollner did not check Farver’s chart before
evaluating him on October 1. Mollner testified that it was
not his regular practice to review the charts of inmates
prior to conducting a mental health evaluation. He de-
scribed this practice of not reviewing an inmate’s chart
variously as clinically beneficial—“Many times I go in there
[without reviewing the chart] and get a fresh impression,
not be biased.”—or as a response to his workload—“I could
have [made it a practice to review an inmate’s chart before
conducting a mental health evaluation]. But to do as many
that had to be done . . . it took a considerable amount of
No. 03-3147 11
time. They had to go pretty smoothly. To have to keep going
back and checking on everything, it never would have been
possible.”
Mollner testified that he was not aware of the following
information on the intake form: that nurse Dean had circled
“Yes” on question number 8, “Expresses thoughts of killing
self”; she had noted a significant mental health history; she
had documented several previous psychiatric hospitaliza-
tions; and she noted that Farver had a number of suicide
attempts in his past. Mollner’s direct supervisor, Fryksdale,
approved of Mollner’s habit of not reviewing an inmate’s
chart prior to conducting a mental health evaluation.
Mollner asserted that immediately before he evaluated
Farver, someone in the jail heard him expressing suicidal
thoughts and that “it never crossed his mind that Justin
was not on [suicide] watch.”
Mollner completed a CMS mental health intake evalua-
tion in connection with his October 1 interview. Mollner
noted on the form that Farver
• had approximately 10 prior psychiatric hospitali-
zation, the most recent in 1995 following a suicide
attempt;
• had undergone outpatient mental health counseling;
• had a history of having prescribed psychotropic
medication;
• was feeling depressed and not himself; and
• “Feels current suicidal proclivities.”
Mollner recommended that Farver be treated for depression
and indicated on the form that he be referred to the CMS
psychiatrist for evaluation. Pursuant to CMS’s manual,
Mollner was required to ensure that an inmate in Farver’s
condition would be placed in an appropriate setting pending
a psychiatric evaluation. This was not done.
12 No. 03-3147
Although Mollner documented that Farver was expressing
“current suicidal proclivities,” he did nothing to see that
Farver was placed on suicide watch or housed in a safe cell
pending a psychiatrist’s examination. The record also shows
that Mollner had a history of resisting placement of inmates
on suicide watch. Mollner challenged possible suicide
referrals made to him by both nurses and guards and
became irate when other staff at the jail made suicide
precaution referrals. For example, Mollner took an inmate
off a suicide watch ordered by Clark, complaining that she
was “making work for him, because now he had to go and
evaluate all these people.” When Mollner’s resistance to
following CMS’s suicide prevention procedures was reported
to Fryksdale, she responded, according to nurse Clark, “Oh,
that’s just Joe. Don’t let it bother you. He gets like that.”
Mollner also did not take any steps to arrange for Farver
to see the CMS psychiatrist, Dr. Fernando, until October
11—7 days after Mollner saw Farver and 14 days after he
arrived at the jail. Mollner, however, did tell Dr. Fernando
that Farver was being referred because of his recent
thoughts of suicide. Mollner states that he delayed referring
Farver to the psychiatrist because he claimed Farver said
he would refuse medication. But there is no documented
evidence that Farver refused medication at any time.
Being CMS’s psychiatrist in October 1998 was not
Dr. Fernando’s regular job but rather one of two “moonlight-
ing” positions he held in addition to his psychiatric resi-
dency, which in itself demanded 70 to 100 hours of his time
each week. Fernando also conducted group psychotherapy
sessions each week and worked one day each weekend at
the Lake County jail. Prior to working for CMS, Fernando
had no correctional experience. Nor did CMS provide Dr.
Fernando with its manual of procedures.
Dr. Fernando saw Farver on October 11. The doctor noted
that Farver was expressing “suicidal ideation.” Dr.
No. 03-3147 13
Fernando diagnosed Farver as suffering from a major de-
pressive disorder and possibly a bipolar disorder. He con-
cluded that Farver posed a risk of suicide. But, like nurse
Dean and Mollner before him, Dr. Fernando did nothing to
ensure that Farver was put on suicide watch: he did not
review the available records to determine Farver’s custody
status and took no action to ensure that suicide prevention
steps were taken. He prescribed medication to treat
Farver’s depression symptoms but he acknowledged that it
would take at least several days, and as long as a number
of weeks, for the medication to become effective. Farver was
returned to his cell in the jail’s medical pod.
Two days later, on October 13, Farver was on “lockdown,”
meaning he was confined to his cell and thus unable to go
to the facility’s “day room” with other inmates. He was
distraught and upset and made repeated inquiries about
being taken off lockdown. Sometime after noon, Farver was
observed in his cell. He was pacing and agitated. Later,
Farver was seen under his blankets “moving around.”
At about 1:00 p.m., an inmate, Dungey, left the day room
and returned to his cell. He saw Farver hanging from a bed
sheet slung around four garment hooks attached to his cell
wall. Dungey called for help. Myres came into the pod from
his glassed-in observation area, followed by Fryksdale.
Myres took off Farver’s homemade noose. CPR and other
efforts proved futile.
At trial, Woodward’s expert witness, Dr. Greifinger, after
testifying to his qualifications as a trained and experienced
physician and consultant in the areas of prisons and health
care, stated that Farver’s suicide was caused by a “system
failure” resulting from CMS’s practice of ignoring its own
policies and procedures. He stated that “once procedures are
written, the staff have to be trained. They have to be told
what the expectations are, and they have to become prac-
ticed at implementing those expectations.” Most suicides
14 No. 03-3147
are preventable, and “in cases where there are warning
signs, where there are red flags, the suicides are absolutely
preventable.”
Here, Dr. Greifinger had no quarrel with CMS’s suicide
prevention procedures, screening form, and instructional
video, stating that it was “based on some very good re-
search.” The problem, Dr. Greifinger testified, was that
CMS systematically ignored its own suicide prevention
procedures. He noted that Farver “came in almost scream-
ing for help,” and that he had “never seen [a suicide risk]
that was more [clearly documented] than this case.”
Dr. Greifinger then described the ways in which CMS
failed to follow its procedures with regard to Farver. Dean
was not properly trained and failed to complete the mental
health intake form. Pursuant to CMS’s written policy, Dean
should have alerted the jail’s shift commander and referred
Farver for mental health evaluation, neither of which Dean
did. Greifinger noted that Fryksdale ratified Dean’s faulty
execution of the intake interview, stating that she “felt it
was okay to ignore the procedure.” Moreover, Greifinger
testified, neither Mollner nor Dr. Fernando made any effort
to ensure that CMS’s suicide prevention procedures were
implemented and did not advise the jail guards to place
Farver on suicide watch, even though Farver’s responses to
screening questions indicated that he was suicidal.
With those facts in mind, we turn to CMS’s main argu-
ment on appeal, that Woodward failed to establish that
CMS was deliberately indifferent to the risk that Farver
might commit suicide. CMS insists that it did all that was
required of it and that, even on the record taken in the light
most favorable to Farver, no reasonable trier of fact could
find that it was deliberately indifferent to Farver’s suicide
risk. As CMS recognizes, it has a heavy burden on appeal.
To sustain overturning a jury verdict, the record must
demonstrate no “legally sufficient evidentiary basis for a
No. 03-3147 15
reasonable jury to find for the non-moving party.” Payne v.
Milwaukee County, 146 F.3d 430, 432 (7th Cir. 1998). We
are obliged to leave the judgment undisturbed unless the
moving party can show that “no rational jury could have
brought in a verdict against [him].” EEOC v. G-K-G, Inc., 39
F.3d 740, 745 (7th Cir. 1994).
A successful § 1983 claim based on a violation of the
Eighth Amendment in this case requires proof of two
things: (1) that the potential harm to Farver was suffi-
ciently serious, and (2) that CMS was deliberately indif-
ferent to his health and safety. See Matos ex rel. Matos v.
O’Sullivan, 335 F.3d 553, 556-57 (7th Cir. 2003) (citing
Farmer v. Brennan); Estelle v. Gamble, 429 U.S. 97, 103-06
(1976). The first prong is obviously satisfied here. So the
dispute is over whether CMS was deliberately indifferent.
We have said that deliberate indifference requires a
showing of more than mere negligence (or even gross negli-
gence) but less than purposeful infliction of harm. Matos,
335 F.3d at 557; Perkins v. Lawson, 312 F.3d 872, 875
(7th Cir. 2002). “A detainee establishes a § 1983 claim by
demonstrating that the defendants were aware of a sub-
stantial risk of serious injury to the detainee but neverthe-
less failed to take appropriate steps to protect him from a
known danger.” Payne for Hicks v. Churchich, 161 F.3d
1030, 1041 (7th Cir. 1998). Although this is a “high hurdle
for a plaintiff,” Peate v. McCann, 294 F.3d 879, 882 (7th Cir.
2002), he “need not show that a prison official acted or
failed to act believing that harm actually would befall an
inmate; it is enough that the official acted or failed to act
despite his knowledge of a substantial risk of serious harm.”
Farmer, 511 U.S. at 842.
With respect to CMS, we have stated that a corporate
16 No. 03-3147
entity1 violates an inmate’s constitutional rights “if it
maintains a policy that sanctions the maintenance of prison
conditions that infringe upon the constitutional rights of the
prisoners.” Estate of Novack ex rel. v. County of Wood, 226
F.3d 525, 530 (7th Cir. 2000) (quoting Payne, 161 F.3d at
1043). “This liability is not founded on a theory of vicarious
liability or respondeat superior that holds a municipality
responsible for the misdeeds of its employees. Rather, a
municipal policy or practice must be the ‘direct cause’ or
‘moving force’ behind the constitutional violation. Id.
(internal citations omitted). In other words, “it is when
execution of a government’s policy or custom . . . inflicts the
injury that the government as an entity is responsible
under § 1983.” Id. at 531 (internal citation omitted).
In Novack we noted that there are two routes a plaintiff
may take to establish municipal liability. First, a constitu-
tional injury caused by a municipality may be “shown
directly by demonstrating that the policy itself is unconstitu-
tional.” Id. More specific for this case, municipal liability
can also be demonstrated indirectly “by showing a series of
bad acts and inviting the court to infer from them that the
policymaking level of government was bound to have
noticed what was going on and by failing to do anything
must have encouraged or at least condoned, thus in either
event adopting, the misconduct of subordinate officers.” Id.
(quoting Jackson v. Marion County, 66 F.3d 151, 152 (7th
Cir. 1995)).
Applying this standard, we find that there was enough
1
CMS has admitted that it was acting under color of state law as
a contractor performing the public function of running a jail.
Therefore, it is treated the same as a municipality for purposes of
§ 1983. See Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766
n.6 (7th Cir. 2002) (“For purposes of § 1983, we have treated a
private corporation acting under color of state law as though it
were a municipal entity.”).
No. 03-3147 17
evidence for the jury to conclude that CMS’s actual practice
(as opposed to its written policy) towards the treatment of
its mentally ill inmates was so inadequate that CMS was on
notice at the time Farver was incarcerated that there was
a substantial risk that he would be deprived of necessary
care in violation of his Eighth Amendment rights. First, the
evidence established that CMS failed to adequately train its
employees. Dean, who as we noted conducted Farver’s
intake proceedings, never completed her 90-day orientation
program, never reviewed CMS’s intake screening instruc-
tional video, never read CMS’s manual concerning conduct-
ing intake screening and identifying and handling potential
suicide risks, and never documented that she completed any
of the orientation steps. Nor is Dean’s lack of training an
isolated incident. Nurse Clark testified, for example, that
she received the manual only after she asked for it. CMS,
moreover, condoned the practice of its employees not
completing its mental health intake forms. Furthermore,
Mollner testified that he did not review the intake forms, a
practice which CMS management knew about and again
permitted. Fryksdale also had knowledge that Mollner
would challenge suicide watch referrals and was resistant
to having a person be put on suicide watch. Again,
Fryksdale allowed such a practice. Here, both Fryksdale
and Morse knew of CMS employees’ disregard for written
policies and yet did nothing to ensure that they followed
those procedures.
There was “a direct causal link,” moreover, between
CMS’s deviation from its established policy and Farver’s
suicide. Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 404 (1997). As the Court stated in Monell, “[I]t is
when execution of [an entity’s] . . . custom . . . inflicts the
injury that the [entity] . . . is responsible under § 1983.”
Monell v. N.Y. City Dep’t of Soc. Svcs., 436 U.S. 658, 694
(1978). Here, a reasonable jury could find that CMS’s
custom of repeatedly failing to follow proper procedures led
18 No. 03-3147
to Farver’s successful suicide attempt. The record shows
that CMS employees knew that Farver was suicidal. Farver
told Dean that he had attempted to kill himself in 1995.
Mollner, moreover, learned that just before he interviewed
Farver, Farver was overheard expressing thoughts of
suicide. Mollner also was told that Farver had ten prior
psychiatric hospitalizations, a history of violent behavior,
and, as Mollner noted, had depressing thoughts. As Dr.
Greifinger stated, Farver “came in almost screaming for
help.” Had CMS ensured that its own written policies were
followed, nurse Dean would have notified the correction
staff immediately that Farver was suicidal and ensured
that he was placed on suicide watch. Farver would therefore
have been physically checked on by correctional guards
every 15 minutes. Furthermore, Mollner and Dr. Fernando
would have made certain that Farver was put on such a
watch. If any had acted, Farver would almost certainly not
have been allowed to lie in his bed all day unchecked,
making a noose out of a bed sheet.2 He would, moreover,
have been moved to a room without hooks on the wall.
Under its own written policies, furthermore, Dean would
have also made a “mental health referral ASAP.” There
would not have been a delay before Farver was ultimately
seen by Dr. Fernando. At the very least, the medication Dr.
2
A reasonable jury was entitled to reject CMS’s defense that
being put on suicide watch wouldn’t have made a difference
because a guard checked on Farver 9 minutes before he hanged
himself. As Judge Gettleman noted:
[I]t’s highly probable in my view, at least the jury had
sufficient evidence to conclude that Justin took much longer
than nine minutes to fashion a noose from a bed sheet,
stretch it over the row of hooks, put it around his head, and
hang himself to death. Indeed, it must have taken him an
extended period of time to do all that, given his dexterity
limitations. Evan a casual suicide watch . . . would have
detected this activity.
No. 03-3147 19
Fernando prescribed would have had a chance to take effect
before Farver took his own life. The reality is that CMS’s
actual policy and practice caused its employees to be
deliberately indifferent to Farver’s serious health needs.
Novack, relied on by CMS, does not lead to a different
result. In Novack the plaintiffs relied on flaws in the jail’s
policies for treating mentally ill patients. We affirmed the
grant of summary judgment for defendants, however, be-
cause none of these policies were shown to have “caused jail
personnel to be deliberately indifferent . . . . In other words,
the evidence presented by the plaintiffs has not shown that
but for [the defendants’] policies, [ ] personnel would have
been aware that Novack posed a high risk of suicide and
would have taken reasonable steps to prevent him from
taking his own life.” Novack, 226 F.3d at 532. In contrast,
here there was a direct connection between inadequate
CMS policies—not training its employees properly, permit-
ting nurses not to completely fill out intake forms, allowing
Mollner’s practice of not reviewing intake forms, and
condoning Mollner’s resistance to putting inmates on
suicide watch—and Farver’s death for the jury to hold CMS
liable.
Next, CMS argues that since the jury found nurse Dean
not liable, the nature of her training and her treatment of
Farver cannot be properly used as a basis for § 1983 lia-
bility against CMS. Indeed, in Durkin v. City of Chicago,
341 F.3d 606, 615 (7th Cir. 2003), we stated that “a muni-
cipality cannot be found liable if there is no finding that the
individual officer is liable on the underlying substantive
claim” (citing City of Los Angeles v. Heller, 475 U.S. 796,
799 (1986) (per curiam)). Here, however, Mollner was found
liable, and nurse Dean’s lack of training and carelessness
was therefore relevant towards establishing CMS’s deliber-
ate indifference towards the welfare of its inmates.
Finally, we cannot leave unaddressed CMS’s claim that
20 No. 03-3147
“the plaintiff’s failure to introduce evidence of any suicide
at the Lake County jail besides Farver’s dooms plaintiff’s
efforts to prove a custom or practice.” CMS does not get a
“one free suicide” pass. The Supreme Court has expressly
acknowledged that evidence of a single violation of federal
rights can trigger municipal liability if the violation was a
“highly predictable consequence” of the municipality’s fail-
ure to act. See Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S.
at 409. Here, there was a direct link between CMS’s policies
and Farver’s suicide. That no one in the past committed
suicide simply shows that CMS was fortunate, not that it
wasn’t deliberately indifferent. Moreover, we note that
CMS’s liability is based on much more than a single
instance of flawed conduct, such as one poorly trained
nurse. It was based on repeated failures to ensure Farver’s
safety—by Dean, by Mollner, and by Dr. Fernando—as well
as a culture that permitted and condoned violations of
policies that were designed to protect inmates like Farver.
Here, the deliberate indifference to Farver’s safety was
demonstrated by CMS’s condoning of its employees not
following policies. As we recently noted, “Jail managers who
decided to take no precautions against the possibility of
inmate suicide—to have no policy, for example no suicide-
watch option—would be guilty of deliberate indifference in
the relevant sense . . . .” Boncher v. Brown County, 272 F.3d
484, 486 (7th Cir. 2001). For all intents and purposes,
ignoring a policy is the same as having no policy in place in
the first place. The jury was entitled to conclude that CMS
was liable under § 1983, and Judge Gettleman did not err
in denying CMS’s post-verdict motion for judgment as a
matter of law.
We next turn to CMS’s argument that Judge Gettleman
abused his discretion in denying CMS’s motion for a new
trial. CMS contends that it is entitled to a new trial based
on “irrelevant” and “highly prejudicial” evidence that Judge
Gettleman permitted the jury to hear, specifically evidence
concerning the impaired nurse, intake backlogs, and claims
No. 03-3147 21
that medical care for other inmates was not provided or
delayed. CMS claims that this evidence was only introduced
to inflame the jury.
A party seeking to reverse a district court’s denial of a
motion for a new trial “bears a particularly heavy burden.”
Lowe v. Consolidated Freightways of Delaware, Inc., 177
F.3d 640, 641 (7th Cir. 1999). A new trial may be granted in
the event of an error in the admission of evidence only if the
improperly admitted evidence had a “substantial influence
over the jury” and the result was “inconsistent with sub-
stantial justice.” David v. Caterpillar, Inc., 324 F.3d 851,
864 (7th Cir. 2003). See also Fed. R. Civ. P. 61 (“No error in
either the admission or the exclusion of evidence . . . is
ground for granting a new trial or for setting aside a verdict
or for vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice.”).
We have recognized that “evidentiary errors satisfy this
standard only if a significant chance exists that they
affected the outcome of the trial.” Hasham v. California
State Bd. of Equalization, 200 F.3d 1035, 1048 (7th Cir.
2000).
Here, evidence that CMS violated its written policies was
relevant to determining its liability. The jury was entitled
to conclude from all of the evidence that CMS was on notice
that its employees ignored the medical needs of inmates
and that such a practice could result in an inmate success-
fully committing suicide. We also note that CMS’s failure to
act in the face of known violations of its written policies is
relevant circumstantial evidence to show CMS’s knowledge
and state of mind. See Farmer, 511 U.S. at 842 (“Whether
a prison official had the requisite knowledge of a substan-
tial risk [of serious harm] is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence . . . .”). Federal Rule of Evidence
404(b), moreover, permits the introduction of evidence of
22 No. 03-3147
other acts. Such evidence is relevant and admissible to
show a custom or practice by a municipality. In any event,
in the face of other evidence of CMS’s disregard for its
suicide policies in Farver’s case, we do not believe the result
was an unfair trial.
Finally, CMS argues that the jury’s punitive damage
award should be vacated. First, it contends that the record
failed to establish a basis for punitive damages. Moreover,
it argues that the award was based on evidence that was
unfairly prejudicial, irrelevant, and inflammatory. We note
that CMS does not raise a constitutional challenge to the
punitive damage verdict. Cf. State Farm Mut. Auto. Ins. Co.
v. Campbell, 123 S. Ct. 1513, 1520 (describing the con-
stitutional limitations on punitive damage awards). Thus,
we review Judge Gettleman’s decision not to grant a remit-
titur only for abuse of discretion. See Cooper Indus., Inc. v.
Letterman Tool Group, Inc., 532 U.S. 424, 433 (2001).
Punitive damages are recoverable in § 1983 actions where
the defendant had a reckless or callous disregard to the
federally protected rights of others. Smith v. Wade, 461 U.S.
30, 35, 51 (1983). This is the same standard as for § 1983
liability, “[B]oth require a determination that the defen-
dants acted with deliberate indifference or reckless disre-
gard . . . .” Walsh v. Mellas, 837 F.2d 789, 801 (7th Cir.
1988). As we noted above, there is ample evidence for the
jury to conclude that CMS was deliberately indifferent to
the risk of suicide within the jail. Both Clark and Schreiner
described a routine disregard for policies and procedures
which was condoned by CMS management. Nurses were not
properly trained, Mollner did not review intake forms and
resisted placing inmates on suicide watch, Fryksdale and
Morse tolerated nurses who were intoxicated and refused to
refer ill patients to the hospital in order to save money. All
of this evidence established a corporation that had little
regard for the inmates whose care it was charged with.
No. 03-3147 23
Nor did Judge Gettleman abuse his discretion in his
evidentiary rulings. In making its argument, CMS relies
heavily on State Farm Mutual. In that case, the Supreme
Court emphasized that “[a] defendant’s dissimilar acts, in-
dependent from the acts upon which liability was premised,
may not serve as the basis for punitive damages.
A defendant should be punished for the conduct that
harmed the plaintiff, not for being an unsavory individual
or business.” 123 S. Ct. at 1523. That case, however, is
distinguishable. There, the trial court admitted evidence of
conduct at State Farm offices in other states, although such
conduct was proper and lawful in those jurisdictions. Here,
the court admitted conduct only regarding CMS’s deliberate
indifference to the medical care of the inmates in the Lake
County jail.
We have considered CMS’s remaining arguments and find
them unpersuasive. The judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-17-04