Eric Conner v. Scott Rubin-Asch ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2019 ∗
Decided November 4, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-1626
ERIC D. CONNER, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 17-CV-1388
SCOTT RUBIN-ASCH, et al., David E. Jones,
Defendants-Appellees. Magistrate Judge.
ORDER
Eric Conner, a Wisconsin inmate, sued a prison psychologist and eight
correctional officers for retaliation and deliberate indifference because they removed
him from clinical observation, despite his threats of self-harm, after he refused to speak
with psychological staff. Conner attempted suicide later that day. The district court
entered summary judgment for the defendants. Because Conner lacks evidence that any
defendant acted with deliberate indifference or a retaliatory motive, we affirm the
judgment.
∗
We have agreed to decide the case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1626 Page 2
When Conner transferred to the Wisconsin Secure Program Facility in Boscobel
in September 2016, he had a long history of threatening suicide and attempting to harm
himself (or, possibly, simulating self-harm) while incarcerated. It is undisputed that
Conner threatened self-harm in an attempt to obtain a private cell and a facility transfer
while at another prison. Conner’s first suicide attempt after transferring to WSPF
occurred in February 2017. He affixed a bedsheet to his showerhead and wrapped it
around his neck. His feet never left the ground, and he sustained no physical injuries.
After this incident, prison staff removed Conner from administrative segregation
(where he was housed because of his diagnoses of anti-social personality disorder and
PTSD) and placed him under clinical observation in the psychological services unit
(“PSU”). Clinical observation is a temporary, nonpunitive status for inmates who pose
an immediate danger to their own safety or the safety of others due to mental illness.
While under observation, Conner refused to speak with PSU staff except to state that he
wanted to be transferred to the Wisconsin Resource Center in Oshkosh.
Conner was released from observation in early March after he told a doctor that
he was not having thoughts of self-harm. But the next day, he tied a sheet to his neck
and climbed a fence in the recreation yard. He climbed down from the fence
voluntarily, without sustaining any physical injuries, and PSU staff placed him back on
clinical observation. Conner made several additional attempts, or at least simulations, of
self-harm while under clinical observation: at various times, he banged his head on his
window, placed a breakfast bag over his head, and wrapped his security smock around
his neck. Each time, Conner stopped his attempt before prison staff had to intervene,
and he did not sustain any injuries from these incidents. PSU staff frequently tried to
evaluate Conner’s mental state and need for continued observation, but Conner refused
to speak with them, or with an outside psychiatrist. He would speak only with security
staff.
On April 20, 2017, the prison’s supervisory psychologist, Dr. Scott Rubin-Asch,
ordered Conner’s removal from clinical observation because he had not demonstrated
recent suicidality (he last attempted self-harm on April 4), and he was not engaging
with PSU staff. Rubin-Asch believed that removing Conner from clinical observation
would improve the likelihood that Conner would have constructive dialogue with
psychological staff. Within minutes of hearing about this order, Conner told a
correctional officer—who told Rubin-Asch—that he would harm himself if he was
forced off clinical observation. The doctor attested that it was his professional opinion
that Conner’s statements were not genuine and were motivated by his desire to remain
No. 19-1626 Page 3
where he was. Conner refused to leave his cell, so a team of correctional officers forcibly
removed him and placed him back in administrative segregation. Conner made more
threats of self-harm during the extraction.
Several hours later, Conner tied his clothing around the showerhead of his cell
and around his neck for approximately one minute. When a guard threatened to
intervene, Conner voluntarily removed the clothing from his neck, then walked to his
cell door to be handcuffed. He did not sustain any injuries, but was placed back under
clinical observation.
Conner sued Rubin-Asch and the correctional officers who removed him from
his observation cell for their deliberate indifference to his threats of self-harm and
suicidal feelings. He also claimed that Rubin-Asch retaliated against him by removing
him from observation for refusing to speak to PSU staff. During discovery, Conner
moved for spoliation sanctions when he learned prison officials did not download the
video of his cell extraction to external media before the camera’s memory was taped
over. Conner had twice asked the prison’s security director, within two months of the
extraction, to save the video. The parties both moved for summary judgment, and the
district court granted the defendants’ motion. The court also denied Conner’s motion
for spoliation sanctions.
On appeal, Conner maintains that Rubin-Asch violated the Eighth Amendment
by removing him from clinical observation despite his threats of self-harm. He further
contends that the doctor’s medical opinion—that Conner’s suicide attempts and threats
of self-harm were not genuine—is unreliable since the doctor did not document that
opinion in his earlier medical reports. Conner also maintains that the correctional-
officer defendants were deliberately indifferent by following Rubin-Asch’s order to
remove him from observation despite his threats of self-harm.
To survive summary judgment on his deliberate indifference claims, Conner
needed evidence from which a reasonable jury could find that the defendants
knowingly and unreasonably failed to respond to an objectively serious risk of harm.
See Farmer v. Brennan, 511 U.S. 825, 844–45 (1994); Wilson v. Adams, 901 F.3d 816, 820
(7th Cir. 2018). When the serious risk at issue is attempted suicide, a defendant acts
knowingly and unreasonably if that defendant “(1) subjectively knew the prisoner was
at substantial risk of committing suicide and (2) intentionally disregarded the risk.”
Lisle v. Welborn, 933 F.3d 705, 716–17 (7th Cir. 2019) (quoting Collins v. Seeman, 462 F.3d
757, 761 (7th Cir. 2006)). This requires “more than mere or gross negligence, but less
No. 19-1626 Page 4
than purposeful infliction of harm.” Matos v. O'Sullivan, 335 F.3d 553, 557 (7th Cir.
2003).
Here, a reasonable jury could not find that the defendants intentionally
disregarded a known, substantial risk of harm because Rubin-Asch made a reasoned
decision that removing Conner from clinical observation was safe and was the best
decision for Conner’s mental health needs. See Farmer, 511 U.S. at 845. After months of
closely observing Conner in the PSU, Rubin-Asch concluded that his threats and
attempts at self-harm were not genuine, and that Conner did not actually pose a danger
to himself. Because Rubin-Asch’s decision was based on his professional judgment, it
must be afforded deference. See McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013). And,
contrary to Conner’s assertion that the doctor’s opinion was contrived, the record
shows that Rubin-Asch had previously expressed concern that Conner wished to
remain under clinical observation because he believed it could result in a facility
transfer. See Wilson, 901 F.3d at 821. The record contains no medical evidence or expert
testimony contradicting the doctor’s opinion or otherwise demonstrating that his
decision was “a substantial departure from accepted professional judgment.” McGee,
721 F.3d at 481.
And, finally, the correctional-officer defendants who extracted Conner from his
cell were entitled to rely on Rubin-Asch’s professional opinion that Conner no longer
belonged under clinical observation. Id. at 483. Indeed, the record shows that no
correctional officer had the authority to override PSU staff’s judgment about whether
any inmate should be on clinical observation.
Conner next argues that the district court erred in concluding that Rubin-Asch
did not retaliate against Conner by removing him from clinical-observation status after
he refused to speak to PSU staff. The district court determined Conner made a
prima facie claim of retaliation, namely: (1) he engaged in a protected activity; (2) he
suffered a deprivation likely to deter him from engaging in the protected activity; and
(3) his protected activity was a motivating factor in the defendant’s decision to retaliate.
See Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018). But the court concluded that
Rubin-Asch met his burden of showing that Conner would have been removed from
clinical observation even if he had not refused to talk.
Rubin-Asch established that he would have released Conner from observation
even if he had cooperated with PSU staff’s attempts to evaluate him. See Hasan v. U.S.
Dep’t. of Labor, 400 F.3d 1001, 1005–06 (7th Cir. 2005). Clinical observation is a temporary
No. 19-1626 Page 5
restrictive environment for inmates who are a present danger to themselves or others.
Rubin-Asch made a professional judgment based on his own observations that Conner
was not a current threat to himself, and the record supports that he removed Conner
from observation on that basis. Conner offered his own speculation but no evidence to
rebut Rubin-Asch’s justification or show that it was pretextual. See id. at 1006; see Thayer
v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).
Conner last argues that the district court abused its discretion by not sanctioning
the defendants for failing to preserve the video of his cell extraction. See FED. R. CIV. P.
37(e). A spoliation sanction is proper only when a party has a duty to preserve evidence
because it knew, or should have known, that litigation was imminent. Trask-Morton v.
Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008). Furthermore, a showing of bad
faith—like destroying evidence to hide adverse information—is a prerequisite to
imposing sanctions for missing evidence. Id. Conner presented no evidence that any
defendant destroyed the video to hide illicit conduct; he therefore cannot rebut the
defendants’ attestations that the video was written over (pursuant to normal practices)
without first having been downloaded and saved. At most, Conner points to
negligence, not bad faith. Therefore, the district court did not abuse its discretion in
denying sanctions.
AFFIRMED