Troy Hammer v. Samantha Schwartz-Oscar ( 2022 )

NONPRECEDENTIAL DISPOSITION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 July 20, 2022 *
Decided July 20, 2022
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1718
TROY G. HAMMER, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-C-444
SAMANTHA SCHWARTZ-OSCAR, et al., William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
When Troy Hammer, who was an inmate at Wisconsin’s Green Bay Correctional
Institute, expressed suicidal thoughts, he was strip-searched and placed on observation,
though he still managed to cut himself. Later, he sued several correctional officers and
medical providers for failing to protect him from a known and serious risk of self-harm,
in violation of the Eighth Amendment. The district court entered summary 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. 21-1718 Page 2
for the defendants. Because the record shows that the defendants reacted with prompt
and reasonable measures, not deliberate indifference, we affirm.
We recount the facts established at summary judgment in the light most
favorable to Hammer. See Lisle v. Welborn, 933 F.3d 705, 710 (7th Cir. 2019). One evening,
Hammer told Lieutenant Daniel Cushing, a supervisory correctional officer, that he
wanted to die and needed restraints to prevent his suicide. Hammer had a history of
threatening and attempting self-harm, and so Cushing called Samantha Schwartz-
Oscar, the prison’s psychologist, who had Cushing place Hammer on “close”
observation. Accordingly, Cushing had officers strip-search Hammer, place him in an
observation cell, and check on him every 15 minutes. Schwartz-Oscar did not think a
more restrictive approach—such as placing Hammer in restraints or constantly
monitoring him—was necessary at the time, given that Hammer had recently done well
on close observation, he seemed cooperative despite his suicidal thoughts, and he had
not injured himself seriously in any prior self-harm incident—though he had, in the
past, sneaked razors past strip searches.
An hour later, Hammer made two 4-centimeter cuts on one of his wrists using a
small razor he had concealed during the strip search. One correctional officer, Michael
Dedering, checked on Hammer around this time. He attested that he did not see
Hammer in the act of cutting himself, though Hammer suspects otherwise. Another
officer checked on Hammer shortly after, saw him cutting at his wrists, and
immediately brought him to the health unit where a nurse dressed his cuts. There,
Hammer warned that he would cut his neck if not restrained. Cushing reported the
incident to Schwartz-Oscar, who put Hammer on constant observation.
Back in the same observation cell, Hammer again cut himself, this time making a
7-centimeter laceration on his neck. Because Hammer was under constant observation,
an officer witnessed the incident, restrained Hammer, and took him to the health unit,
where his cuts were treated, and it was determined that he needed to go to an outside
hospital for further evaluation. Cushing escorted Hammer to the hospital. He also
reported the incident to Schwartz-Oscar, who instructed Cushing to put Hammer in
restraints when he returned from the hospital. Cushing did so.
Hammer later sued Schwartz-Oscar, Cushing, Dedering, the prison nurse, and
several other correctional officers for failing to prevent him from harming himself in
violation of the Eighth Amendment. See 42 U.S.C. § 1983. He also asserted that
No. 21-1718 Page 3
Schwartz-Oscar and the nurse committed medical malpractice under state law by
failing to restrain him after he first expressed suicidal thoughts.
The eight defendants moved for summary judgment, and the court granted their
motion. No reasonable jury could conclude Schwartz-Oscar reacted indifferently to
Hammer’s risk of self-harm, the court ruled, because she put him on close, then
constant, observation, and finally in restraints. Nor was Cushing indifferent, the court
added, given that he reported Hammer’s conduct to Schwartz-Oscar and carried out her
commands. As for the other officers and the nurse, the court explained that because
they observed Hammer, escorted him to the health unit as needed, and treated his
wounds, no jury could find them deliberately indifferent to Hammer’s needs. Finally,
the court dismissed the state-law claim because the defendants were not covered by
Wisconsin’s malpractice statute and were not properly sued for negligence.
On appeal, 1 Hammer contests the conclusion that the evidence required judgment
for the defendants. He contends that his Eighth Amendment claim against Schwartz-
Oscar and Cushing must survive because they displayed deliberate indifference by not
restraining him immediately after his credible threat of self-harm. He also argues that
summary judgment for Dedering is precluded by the evidence that the guard shrugged
his shoulders and walked away when he saw that Hammer was cutting himself.
To get past summary judgment on a deliberate-indifference claim, Hammer had
to furnish evidence from which a reasonable jury could find that the defendants
knowingly and unreasonably failed to respond to a serious risk of harm. See Farmer v.
Brennan, 511 U.S. 825, 844–45 (1994); Lord v. Beahm, 952 F.3d 902, 904 (7th Cir. 2020).
Genuine suicidal ideation is an objectively serious medical condition, and prisoners
have a right to be free from deliberate indifference to the associated risk of serious
harm. Lord, 952 F.3d at 904; Lisle, 933 F.3d at 716 (collecting cases).
Judgment for Schwartz-Oscar and Cushing was proper, despite Hammer’s
contention that they each knew about his history of concealing razors and therefore
knew he needed to be placed in restraints once he threatened self-harm. First, there is
no evidence that Schwartz-Oscar disregarded a substantial risk of harm. The record
shows that at each juncture, Schwartz-Oscar applied professional judgment and made
individualized decisions to protect Hammer. See Petties v. Carter, 836 F.3d 722, 729
1
We construe Hammer’s late-filed reply brief as a motion to file it instanter,
grant the motion, and consider the reply brief in resolving this appeal.
No. 21-1718 Page 4
(7th Cir. 2016) (en banc) (to show deliberate indifference, the decision must reveal “an
absence of professional judgment”). When Hammer first expressed suicidal threats, she
ordered close observation, which required that he be strip-searched, deprived of objects
that could be used for self-harm, and put into a safer cell. This was a permissible
response to the circumstances at the time, including Hammer’s cooperative demeanor,
his lack (to Schwartz-Oscar’s knowledge) of objects for self-harm, and the previous
efficacy of close observation. When Hammer later acted on his warnings of self-harm,
Schwartz-Oscar evolved her response by ordering constant observation and, later,
restraints. Hammer contends that Schwartz-Oscar should have ordered restraints
earlier, but inmates are not entitled to demand a particular response to risk, so long as
the defendant does not act with deliberate indifference. See Arnett v. Webster, 658 F.3d
742, 758 (7th Cir. 2011). And Hammer furnished no evidence that the decision to put
him on observation rather than in restraints was not based on Schwartz-Oscar’s
professional judgment. Id. at 758–59.
Second, as to Cushing, who reported Hammer’s conduct to Schwartz-Oscar and
carried out her recommendations, there is no evidence of a culpable state of mind. At
each stage—when he learned that Hammer was feeling suicidal, when Hammer cut his
wrists, and when Hammer cut his neck—Cushing promptly called Schwartz-Oscar for
advice about how best to respond. He carried out Schwartz-Oscar’s instructions and, as
result, each time Hammer attempted to self-harm, an officer was nearby and intervened
to save his life. True, Hammer asked Cushing for restraints, but Cushing was permitted
to rely on Schwartz-Oscar’s advice about psychological matters, including how to
respond to a patient’s suicidal threats. See Arnett, 658 F.3d at 755.
Summary judgment for the remaining defendants was also sound. Regarding
Michael Dedering, Hammer lacked evidence this officer saw Hammer cutting himself
and walked away. Though Hammer attested that Dedering did so, Hammer cannot
swear to what another person saw, and his suspicion by itself is not evidence that raises
a dispute when Dedering testified that he did not see Hammer cutting himself. See Gabb
v. Wexford Health Sources, Inc., 945 F.3d 1027, 1034 (7th Cir. 2019). As for the other
defendants, Hammer raises no argument on appeal specific to them, and so he has
waived any challenge. See Wonsey v. City of Chicago, 940 F.3d 394, 398–99 (7th Cir. 2019).
Lastly, Hammer appeals the summary judgment on his state-law claims, but
neither Schwartz-Oscar nor the health-unit nurse can be sued under Wisconsin’s
medical-malpractice statute because neither is a “physician” or “nurse anesthetist.”
See WISC. STAT. §§ 655.001, 655.002. And to the extent Hammer sought to sue these
No. 21-1718 Page 5
defendants for negligence, that claim fails because Hammer never served the state
attorney general with notice of the claim, as is required. See id. § 893.82(5m).
AFFIRMED