Ronald Kupsky v. Tenesa McLaren ( 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NONPRECEDENTIAL DISPOSITION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 January 7, 2019 *
Decided January 15, 2019
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-2270
RONALD KUPSKY, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 18-C-385
TENESA McLAREN, et al., William C. Griesbach,
Defendants-Appellees. Chief Judge.
ORDER
Ronald Kupsky, a Wisconsin inmate, appeals the dismissal of his suit against
prison medical staff for violating the Eighth Amendment. He alleges that the staff acted
with deliberate indifference by ignoring his warnings that he would attempt suicide if
they did not provide mental-health treatment and allow him to eat his meals alone in
*
The defendants were not served in the district court and are not participating in
this appeal. Some defendants are identified only by last name, so we use the names and
titles in the complaint. We agreed to decide this 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. 18-2270 Page 2
his cell. The district judge screened his complaint, determined that Kupsky did not
plausibly allege that any defendant was indifferent to his risk of suicide, and dismissed
the complaint. We affirm.
We accept as true the allegations in Kupsky’s complaint and its attachments. See
FED. R. CIV. P. 10(c); Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). Kupsky
alleges essentially that several doctors and their supervisor in the psychological services
unit at his prison were indifferent to his need for medical care, causing him to harm
himself and even attempt suicide.
The first doctor to treat Kupsky was Dr. Tenesa McLaren, his “main clinical
contact.” He had been directed to her by an unidentified employee in the psychological
services unit whom he had warned that he did not think that he could keep from
engaging in self-harm “under [his] current placement status.” Kupsky met with
Dr. McLaren but alleges that she and her supervisor were both indifferent to his risk of
suicide. Dr. McLaren provisionally diagnosed him with “Other Specified Personality
Disorder with schizoid personality features” but refused to provide any further
treatment. Kupsky attached to his complaint Dr. McLaren’s clinical report, which states
that Kupsky did “not meet all criteria for a diagnosis of Schizoid Personality Disorder”
and that he denied during the interview having any present suicidal ideations or a
history of mental-health treatment. Kupsky complained about Dr. McLaren to her
supervisor, Dr. S. Schmidt, and requested a new doctor. Dr. Schmidt refused the
request.
When Dr. McLaren took temporary leave, Kupsky was assigned to Dr. DeBlanc,
who Kupsky found equally unsatisfactory. He alleges that she also refused treatment
and that he later harmed himself “to the point [he] was bleeding.” The unit then placed
him on observation status to prevent future self-harm. While on observation Kupsky
was reassigned to another doctor, Dr. Torria Van Buren, who also refused to treat him.
According to Dr. Van Buren’s attached report, she placed Kupsky—despite showing
“no evidence of a thought disorder”—on observation status after several recent reports
of “suicidal ideation and urges to harm himself.” Kupsky later met with another doctor
who placed him on “feed-cell” status, meaning he had approval to eat alone in his cell.
Dr. McLaren eventually returned to work, and Kupsky alleges that she continued
to ignore his suicide risk. She informed him that his three-month stint on feed-cell
status would not be extended. Kupsky alleges that he warned her that ending his
feed-cell status would result in him “going back on obs[ervation],” to which
Dr. McLaren replied, “that’s fine.” Kupsky says that he was placed on observation
No. 18-2270 Page 3
status “multiple times” after his meeting with Dr. McLaren, and once he was
transported to an emergency room after drinking four ounces of shampoo in an attempt
to commit suicide.
Kupsky brought this Eighth Amendment action against Drs. McLaren, DeBlanc,
Schmidt, and Van Buren, alleging they all were deliberately indifferent to his risk of
suicide. See 42 U.S.C. § 1983. Kupsky seeks damages, an injunction mandating his
transfer to a mental-health institution for treatment, and in the interim an assignment to
the Behavioral Health Unit with a feed-cell status.
At screening the district court dismissed Kupsky’s complaint with prejudice for
failing to state a claim. The judge concluded that Kupsky did not specify what any
defendant failed to do that contributed to his injury other than refusing to extend his
feed-cell status permanently. Kupsky’s allegations, the judge added, make clear that he
was not in imminent danger of harm when he spoke to the defendants. The judge
explained that to give rise to a sufficiently imminent danger, a risk of future harm must
be more likely than was the case alleged here.
On appeal Kupsky asserts generally that his complaint was sufficient to show
that he was entitled to relief. To plead an Eighth Amendment claim, Kupsky needed to
allege that his harm was “objectively, sufficiently serious” and that the defendants acted
with “deliberate indifference to [his] health or safety.” Farmer v. Brennan, 511 U.S. 825,
834 (1994) (internal quotation marks omitted). “To be liable under the Eighth
Amendment for an inmate’s suicide, a prison official must be cognizant of the
significant likelihood that an inmate may imminently seek to take his own life and must
fail to take reasonable steps to prevent the inmate from performing this act.” Sanville
v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001) (internal quotation marks omitted).
First, Kupsky’s complaint fails to state a claim against Drs. McLaren, DeBlanc
and Van Buren. A suicide attempt obviously presents a serious harm. Estate of Miller ex
rel. Bertram v. Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012). But Kupsky’s allegations do not
plausibly support any inference of deliberate indifference: by his own account,
Drs. McLaren, DeBlanc, and Van Buren placed him on observation status “multiple
times” upon his self-harm warnings. See State Bank of St. Charles v. Camic, 712 F.2d 1140,
1146 (7th Cir. 1983) (removing an inmate’s belt and shoelaces are reasonable
precautions precluding the possibility of deliberate indifference). Kupsky counters that
observation status is not treatment, but it is the process that Wisconsin has adopted for
preventing self-harm, see WIS. ADMIN. CODE DOC § 311.04(1) (explaining that the
purpose of observation is “to ensure the safety of the inmate or the safety of others”),
No. 18-2270 Page 4
and the Eighth Amendment requires only that the defendants take reasonable steps to
prevent the “unnecessary and wanton infliction of pain,” Estelle v. Gamble, 429 U.S. 97,
105–06 (1976).
Second, Kupsky also fails to state a claim against Dr. Schmidt. Kupsky may have
complained to Dr. Schmidt about Dr. McLaren’s care and even requested another
doctor, but his complaint bears no hint that Dr. Schmidt was ever aware of—let alone
recklessly disregarded—any suicide risk. Even though Dr. Schmidt’s signature appears
on two reports drafted by Dr. McLaren, both reports state that Kupsky denied thoughts
of suicide or self-harm.
Lastly, Kupsky’s allegations do not support the conclusion that he faced a risk of
future injury that was sufficiently imminent. For an official to be liable for ignoring a
risk of future harm, the harm must be “‘sure or very likely to’ … give rise to ‘sufficiently
imminent dangers.’” Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality opinion)
(emphasis omitted) (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). But Kupsky
alleged only that he warned defendants that he would need to go “back on
obs[ervation]” at some unspecified time in the future after he was removed from feed-
cell status. This warning is too vague to convey an imminent risk.
Because the district court dismissed Kupsky’s complaint for failure to state a
claim, see 28 U.S.C. § 1915(g), he has incurred a strike on appeal in addition to the one
accrued in the district court, see Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).
AFFIRMED