Whiting, Bobbi J. v. Marathon Sheriff ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3515
BOBBI JO WHITING,
Plaintiff-Appellant,
v.
MARATHON COUNTY SHERIFF ’S DEPARTMENT,
RANDY HOENISCH, RON POSPYCHALLA,
JOHN REED, and PAUL FAUST,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-84—John C. Shabaz, Judge.
____________
ARGUED APRIL 9, 2004—DECIDED AUGUST 30, 2004
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Bobbi Jo Whiting sued the
Marathon County, Wisconsin Sheriff’s Department and
certain of its employees and officials under 42 U.S.C. § 1983,
alleging she suffered damages as a result of her exposure to
a substantial risk of injury to which the defendants were
deliberately indifferent. The district court granted defendants’
motion for summary judgment, Whiting appealed, and we
now affirm.
2 No. 03-3515
I. Background
Before delving into the particular facts surrounding the
incident giving rise to Whiting’s complaint, we need to re-
view the salient details of Whiting’s connection to Donald
Smith. In 1996, Whiting met a twenty-seven year-old Smith
when she was only fifteen. A romantic relationship devel-
oped, resulted in the birth of a child in October of 1999, and
continued for an additional one to two years.
At some point, the relationship soured. In 2001, Smith,
while incarcerated at the Marathon County Jail, attempted
to convince a friend to murder Whiting. As a result, on
August 14, 2001, Smith was formally charged in Marathon
County Circuit Court with conspiracy to commit homicide.
At the conclusion of the August 14 hearing, the judge entered
an “Order for No Contact Provision.” The order prohibited
Smith from having any contact with Whiting, whether in
person, by telephone, in writing, or through any third par-
ties. It further stated that a violation of the order would be
punishable by criminal contempt, including revocation of
various jail privileges. One copy of the order was provided
to Smith and another was placed in Smith’s Marathon
County Jail file.
We next recap the circumstances leading to the instant
cause of action. On March 21, 2002, Whiting was brought to
the Marathon County Jail on a probation hold issued by her
probation agent.1 She arrived around seven or eight o’clock
in the evening. Standard intake and booking procedures
were followed. The next morning, a thorough intake
interview was performed by Classification Officer Susan
Rye. As reflected on the “Classification Interview Form,”
1
Interestingly, the probation hold was based upon statements by
Smith, indicating that Whiting attempted to hire him to kill her
current fiancé. An investigation resulted, but no charges stemming
from Smith’s allegations were ever filed.
No. 03-3515 3
Whiting told Rye that she had a high-risk pregnancy and
that Smith was a known enemy. However, the form reflects
that Whiting did not request protective custody. Nor did
Whiting inform Rye (or the first intake officer) that there
was an outstanding court order prohibiting Smith from
contacting Whiting.
On the morning of March 23, 2002, Whiting was told that
she had an attorney visit, although she was not advised
that it was attorney Frederick Voss, counsel for Smith, who
had requested to speak with her. Defendant-guard Paul
Faust, who had no personal knowledge of the no-contact
order, escorted Whiting to the visiting area of the jail. As
they walked past the visiting rooms, Whiting saw Smith,
attorney Voss, and another individual in one of the rooms.
Because the remainder of the visiting rooms were empty,
Faust asked Voss if he was the attorney who wanted to
speak with Whiting. Attorney Voss responded that he was.
Whiting then waited outside the visiting room for approx-
imately ten minutes. While she waited, brief verbal and
non-verbal exchanges took place between Whiting, Smith,
and attorney Voss. Eventually, Faust instructed Whiting to
enter the visiting room, which she did. At no time prior to
or during Whiting’s encounter with Smith and attorney
Voss did she complain to Faust about speaking with Smith
or inform Faust of the no-contact order.
Although attorney Voss undeniably knew there was a court
order prohibiting Smith from contacting Whiting, shock-
ingly, Voss did not inform Faust of the order and, at least
on this record, appears to have intentionally orchestrated
the face-to-face meeting between Smith and Whiting in
clear violation of the order.
After Whiting entered the visiting room, a forty-five min-
ute exchange followed among Whiting, Smith, and attorney
Voss. During the conversation, Whiting claims Smith, in the
presence of attorney Voss, attempted to convince Whiting to
4 No. 03-3515
change her testimony regarding certain charges against
Smith. Smith also touched Whiting numerous times on her
leg. When Whiting refused to change her testimony, Smith
began to threaten her. And as Whiting continued to rebuff
Smith’s entreaties, he became increasingly agitated,
grinding his teeth and raising his arms and fists in strong,
threatening gestures. Smith at one point even shouted,
“You and I are going to box!”
When Faust eventually returned to the visiting room,
Whiting immediately left with him. And once out of Smith’s
earshot she exclaimed, “I was not supposed to be in that
room! There’s a no-contact order!”, and requested to speak
with Police Officer Hagenbucher. The next day, Hagenbucher
visited Whiting. She recounted the events of the previous
day and Hagenbucher assured her that she should not have
been in the visiting room with Smith. Whiting was subse-
quently removed from the Marathon County Jail pending
completion of the investigation into her probation hold.
Whiting claims that as a result of her encounter with Smith,
she suffered from extreme stress and anxiety, for which
medical treatment was required. This stress and anxiety,
she asserts, also led her to develop a high-risk pregnancy
plagued by various complications, culminating in a prema-
ture delivery (an odd allegation given that she indicated to
Rye that her pregnancy was high-risk on March 22, one day
prior to her encounter with Smith). She also states that
since her son’s birth on September 5, 2002, he has experienced
significant health problems, caused by Whiting’s stress during
her pregnancy. Based upon these injuries, on February 20,
2003, Whiting filed suit under 42 U.S.C. § 1983 against the
Marathon County Sheriff’s Department, an agency of the
County of Marathon, a governmental subdivision of the
state of Wisconsin; Randy Hoenisch, the Marathon County
Sheriff; Ron Pospychalla, the Chief Deputy Sheriff; John
Reed, the Jail Administrator; and Faust. She alleged that
the defendants’ deliberate indifference to an objectively ser-
No. 03-3515 5
ious risk of harm to Whiting violated the Due Process
Clause of the Fourteenth Amendment.
Whiting initially stated her claim under Fourteenth
Amendment because she was (arguably) a pre-trial detainee
at the time of March 23 incident. However, later, in her
brief in opposition to the defendants’ summary-judgment
motion, Whiting indicated that her claim might actually
arise under the Eighth Amendment as she may have had
ordinary prisoner status at the time her probation hold was
effected. The distinction is immaterial since the legal
standard for a § 1983 claim is the same under either the
Cruel and Unusual Punishment Clause of the Eighth
Amendment or the Due Process Clause of the Fourteenth
Amendment. Cavalieri v. Shepard, 321 F.3d 616, 620 (7th
Cir. 2003); see also Washington v. LaPorte County Sheriff’s
Dep’t, 306 F.3d 515, 517 (7th Cir. 2002) (“The protections
for pretrial detainees are at least as great as the Eighth
Amendment protections available to a convicted prisoner,
and we frequently consider the standards to be analogous.”
(internal citation and quotations omitted)). Hence, we do
not decide whether Whiting was a pretrial detainee or a
prisoner, and we treat her claim as arising under the
Eighth Amendment, just as the district court did.
The district court granted the defendants’ subsequent mo-
tion for summary judgment, and Whiting timely appealed.
For the following reasons, we affirm.
II. Analysis
We review de novo the district court’s decision to grant
summary judgment and, in doing so, consider the evidence
in the light most favorable to the nonmoving party. Martin
v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 705 (7th Cir.
2002). Summary judgment is appropriate only “if the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that
6 No. 03-3515
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
A prison official’s deliberate indifference to a substantial
risk of serious harm to an inmate violates the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994).
The Supreme Court in Farmer considered the correct
definition of “deliberate indifference.” Id. at 835-40. After
comparing deliberate indifference with common-law tort
recklessness, the Court expressly rejected an objective test
for deliberate indifference. Id. at 837. Because a subjective
recklessness test for deliberate indifference “isolates those
who inflict punishment,” the Court concluded that it is the
appropriate requirement in Eighth Amendment suits against
prison officials. Id. at 839 (emphasis added). “[A] prison of-
ficial cannot be found liable under the Eighth Amendment . . .
unless the official knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware
of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 837. In this case, Farmer is in-
disputably dispositive.
Whiting conceded at oral argument that none of the
named individual defendants had actual knowledge of the
no-contact order. Therefore, under Farmer, none can be held
liable for any of Whiting’s alleged injuries.
Perhaps understanding this unavoidable outcome, in her
brief to this court, Whiting waived her appeal as to defendant
Faust “because he personally lacked [the necessary] know-
ledge.” Unfortunately, with respect to the other named
defendants, Whiting labors under the misguided notion that
the knowledge of the intake-officer or Classification Officer
Rye can be imputed to Sheriff Hoenisch, Deputy Sheriff
Pospychalla, and Jail Administrator Reed. But Farmer, since
it requires the defendant-official to have actual knowledge of
No. 03-3515 7
the risk, foreclosed imputed knowledge as the basis for an
Eighth Amendment claim of deliberate indifference.
Perhaps Hoenisch, Pospychalla, and Reed failed to alleviate
a significant risk of harm they should have perceived, but
though this is “no cause for commendation, [it] cannot . . .
be condemned as the infliction of punishment.” Id. at 838.
Put differently, Whiting sued the wrong parties—those
who lacked actual knowledge of both the risk Smith posed
to Whiting generally, and the no-contact order specifically.
Concomitantly, Whiting’s decision to forego suit against the
intake officer and/or Classification Officer Rye remains a
riddle. Moreover, at oral argument, surprisingly, neither
party knew whether attorney Voss had been disciplined in
any way by the Wisconsin agency responsible for lawyer
regulation, held in criminal contempt for willfully violating
the no-contact order under Wisconsin’s counterpart to 18
U.S.C. § 402 (because, as Smith’s attorney, Voss was also
bound by the court’s no-contact order, see, e.g., Fed. R. Civ.
P. 65(d)), or if any complaint at all had been lodged against
this—attorney.
Whiting’s claims against the Sheriff’s Department are
also doomed. In short, the Marathon County Sheriff’s
Department is not a legal entity separable from the county
government which it serves and is therefore, not subject to
suit.2 Buchanan v. Kenosha, 57 F. Supp. 2d 675, 678 (E.D.
Wis. 1999) (citing cases). As with the individual defendants,
Whiting sued the wrong party.
2
We make no determination as to the viability of a § 1983 action
against Marathon County based upon the Sheriff’s Department’s
policies and customs regarding persons identified by prisoners as
known enemies and/or no-contact orders entered against inmates.
8 No. 03-3515
III. Conclusion
For the foregoing reasons, 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—8-30-04