Cavalieri, Joann v. Shepard, Donald

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3745
JOANN CAVALIERI, AS PLENARY GUARDIAN
OF THE ESTATE OF STEVEN CAVALIERI,
A DISABLED PERSON,
Plaintiff-Appellee,
v.
DONALD SHEPARD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 99-CV-2121—Michael P. McCuskey, Judge.
____________
ARGUED MAY 24, 2002—DECIDED FEBRUARY 24, 2003
____________
Before POSNER, MANION, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Steven Cavalieri is in
a vegetative state after attempting suicide in a holding
cell in the Champaign County Correctional Facility (the
CCCF). Steven’s mother, Joann Cavalieri, brought this
action under 42 U.S.C. § 1983 as the guardian of her son’s
estate, claiming that Steven attempted suicide after Don-
ald Shepard, a police officer with the City of Champaign
(the City), and others acted with deliberate indifference
to his risk of suicide. Shepard now appeals from the dis-
2 No. 01-3745
trict court’s denial of his motion for summary judgment
and claim of qualified immunity. We affirm.
I
Although this is an interlocutory appeal, Shepard is
entitled to bring it now, because he is raising the question
whether he should have prevailed on his defense of quali-
fied immunity, based on the facts taken in the light most
favorable to Mrs. Cavalieri. See Mitchell v. Forsyth, 472
U.S. 511, 525-26 (1985). We must resolve a qualified im-
munity issue as early as possible in the proceedings,
because it is an “immunity from suit rather than a mere
defense to liability.” Saucier v. Katz, 533 U.S. 194, 200
(2001) (emphasis in original). We present the facts below
in the light most favorable to Mrs. Cavalieri, because
we have no appellate jurisdiction to the extent disputed
facts are central to the case. See Johnson v. Jones, 515
U.S. 304 (1995).
On June 4, 1998, Steven kidnaped Stephanie Rouse, his
former girlfriend, and took her from Champaign to a re-
mote area of Urbana. Using a gun, he threatened to kill
both Rouse and himself. Rouse convinced Steven to drive
back to town, and then she called his mother from a pub-
lic phone. After speaking with Rouse, Mrs. Cavalieri
called the Crisis Hotline in Champaign County. Rouse lat-
er placed a call to the Crisis Hotline as well. The Crisis
Hotline contacted the Metropolitan Computer Aided
Dispatch (METCAD), which called the City Police De-
partment.
The Champaign Police Department dispatched two
officers who were instructed that there was a hostage
situation involving a man with a gun. At approxi-
mately 3:00 a.m., the officers knocked on Rouse’s door; a
male responded, but he refused to let the officers inside.
The officers then called a hostage negotiation team and
No. 01-3745 3
contacted Rouse by telephone. Rouse denied that Steven
was present and that she might need assistance, but
she also refused to leave her apartment. This standoff
continued for several hours until approximately 6:00 a.m.,
when a member of the hostage negotiation team spoke
with Mrs. Cavalieri. She advised the officers that her
son was suicidal and needed to go to a hospital.
About an hour later, the SWAT team entered the apart-
ment using pepper spray. They immediately handcuffed
and removed all the occupants, including Steven, who
was found hiding under a kitchen cabinet. Rouse was
briefly interviewed at the scene. After the SWAT team
located Steven, Rouse informed the officers of the events of
the evening, specifically telling them that Steven had
threatened to kill both himself and her.
After Steven arrived at the City jail, he met with defen-
dant Shepard for approximately one hour. Steven asked
Shepard if he could speak to a mental health counselor,
and Shepard explained that jail personnel would arrange
for him to speak with someone. At around 10:00 a.m.,
Steven was transferred to the CCCF. Despite the official
transfer, Shepard remained personally involved with the
case and continued to participate in interviews with both
Rouse and Mrs. Cavalieri.
First, Shepard joined an ongoing interview with Rouse.
Rouse explained once again that Steven had threatened
to kill her and commit suicide himself. Rouse also told
Shepard that this kidnaping came just a month after Steven
was arrested for criminal trespass at Rouse’s apart-
ment. Finally, Rouse told Shepard that Steven claimed
that he would kill himself if he ever returned to jail.
Next, Shepard interviewed Mrs. Cavalieri. Mrs. Cavalieri
told Shepard that she wanted to make arrangements to
ensure that her son saw a counselor. She also explained
that her son’s mental condition was fragile, and she told
4 No. 01-3745
Shepard about the calls to the Crisis Line the night before.
Finally, she told Shepard that Steven had been on suicide
watch the month before at the CCCF, while he was be-
ing held there in conjunction with his criminal trespass
arrest. Shepard advised Mrs. Cavalieri that Steven’s mind
was “on overload,” that he seemed very upset, and that
he believed Steven would need counseling. Mrs. Cavalieri
told Shepard that Steven needed to be on suicide watch
and should not be left alone. Shepard responded by promis-
ing Mrs. Cavalieri that Steven would not be alone.
Around 11:00 a.m., Shepard called the CCCF to speak
with Steven. He informed Steven that Mrs. Cavalieri was
with him and that she would arrange for him to have a
counselor. During this conversation Steven told Shepard
that he was doing fine and that he was looking forward
to seeing his mother. Shepard then directed Mrs. Cavalieri
to County Mental Health so that she could arrange for
Steven to speak with a counselor.
Shepard asserts that after completing these interviews,
he did not subjectively believe that Steven was a suicide
risk. He emphasizes that Steven seemed calm when they
spoke on the phone, was without weapons, and that dur-
ing their phone conversation he stated that he was do-
ing fine. Unfortunately, this was far from the case.
After Steven was transferred to the CCCF, he was not
placed on suicide watch. Steven himself did not alert
the CCCF staff to the fact that he was having suicidal
thoughts. Indeed, during his intake he denied all the
events of the early morning (having the gun, harming or
threatening anyone, having suicidal thoughts or ever
attempting to commit suicide). He did ask to speak to a
mental health advisor, and was told he would receive one,
but no advisor came before his attempt on his life. Steven
was assigned to a holding cell in the booking area while
he awaited further processing. The holding cell contained
No. 01-3745 5
a telephone with a strong metal cord. Later that after-
noon, Shepard called the CCCF to instruct the guards to
put a stop to Steven’s phone calls, as he had been making
annoying calls to Rouse. Shepard was then informed
that around 2:10 p.m., Steven had been found unconscious,
hanging from the wire telephone cord. To this day, he
has not regained consciousness and remains in an unre-
sponsive state. He now lives in a nursing home near his
mother.
II
As the Supreme Court recently reminded us, in order
to decide whether a defendant is entitled to qualified
immunity, we must first determine whether (taking the
facts in the light most favorable to the plaintiff) a consti-
tutional right was violated, and second, if those facts
would demonstrate a violation, we must decide whether
the right in question was clearly established at the time
the events took place. Saucier, 533 U.S. at 200. We re-
view these issues de novo, Dufour-Dowell v. Cogger, 152
F.3d 678, 680 (7th Cir. 1998). Viewing the record in the
light most favorable to Mrs. Cavalieri, we conclude that
Shepard can prevail in this case only if certain disputed
facts are resolved in his favor by a trier of fact. Put differ-
ently, taking the facts from the required perspective, we
conclude that Steven’s constitutional rights were vio-
lated and that these rights were clearly established as
of mid-1998.
A
As an initial matter, we must determine whether Mrs.
Cavalieri has alleged facts that would show that Shepard’s
conduct violated her son’s constitutional rights. Mrs.
Cavalieri first claimed violations of the Fourth Amend-
6 No. 01-3745
ment, but she now correctly asserts that Steven’s claim,
which she is pursuing as his guardian, arises (if at all)
under the Fourteenth Amendment. See Bell v. Wolfish,
441 U.S. 520, 535 n.16 (1979). The Eighth Amendment
does not apply to pretrial detainees, but as a pretrial
detainee, Steven was entitled to at least the same pro-
tection against deliberate indifference to his basic needs
as is available to convicted prisoners under the Eighth
Amendment. Id.; Payne v. Churchich, 161 F.3d 1030, 1039-
41 (7th Cir. 1998); Tesch v. County of Green Lake, 157 F.3d
465, 473 (7th Cir. 1998). Under both the Eighth and
Fourteenth Amendment standards, the plaintiff has the
burden of showing that (1) the harm to the plaintiff was
objectively serious; and (2) that the official was deliberately
indifferent to her health or safety. Farmer v. Brennan, 511
U.S. 825, 833 (1994); Payne, 161 F.3d at 1041 (“A detainee
establishes a § 1983 claim by demonstrating that the
defendants were aware of a substantial risk of serious
injury to the detainee but nevertheless failed to take
appropriate steps to protect him from a known danger.”).
The question is whether Shepard was aware that Stev-
en was on the verge of committing suicide (which, if it
occurred, surely would qualify as a serious harm). If the
trier of fact believes Mrs. Cavalieri’s account, the answer
is yes. We realize that according to Shepard, the only
facts available to him were (1) Rouse’s statement that
Steven attempted to kill her and himself, but that she had
calmed him down and he apologized; (2) that Steven
was calm when interviewed; (3) that Steven did not have
a weapon and was under custody; and (4) that Steven
said he was fine when Shepard spoke with him over the
phone. Unfortunately for Shepard, if other evidence in the
record is credited, a trier of fact could conclude that
he knew much more. Since we must take the facts in the
light most favorable to Mrs. Cavalieri, we must also
consider four additional facts: (1) that Shepard told Mrs.
No. 01-3745 7
Cavalieri that Steven was upset during his interview;
(2) that Mrs. Cavalieri told Shepard that Steven should
be on suicide watch; (3) that Shepard knew that Stev-
en had been on suicide watch only a month before; and
(4) that Rouse told Shepard that Steven had warned her
that he would kill himself if he was ever returned to the
jail.
Shepard argues that the fact that Steven had no weapon
with him and was under the CCCF’s custody trumps the
testimonial evidence of the information he had at his
disposal. Unfortunately, these precautions are not al-
ways enough to prevent this kind of event. Although
weapons are obviously not permitted in jails and pris-
ons, there are high rates of suicide in prisons (higher than
in the general population), and even higher rates among
pretrial detainees. See, e.g., Jutzi-Johnson v. United States,
263 F.3d 753, 757 (7th Cir. 2001). As a result, prisons
and jails have developed procedures for dealing with
prisoners who display suicidal tendencies, such as remov-
ing items that could be used as a suicide weapon, like
sheets or a sturdy telephone cord, or not leaving those
prisoners unattended.
Shepard’s deposition testimony that he did not think
Steven was on the verge of suicide is also not enough to
eliminate a genuine issue of fact. We recognize that
“strange behavior alone, without indications that that
behavior has a substantial likelihood of taking a sui-
cidal turn, is not sufficient to impute subjective knowledge
of a high suicide risk to jail personnel.” Estate of Novack
ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th
Cir. 2000). Indeed, had no one informed Shepard that
Steven was at risk of suicide, this would be a different
case. But both Mrs. Cavalieri and Rouse testified that they
had alerted Shepard to this specific risk. Shepard was
not forced to operate only on the basis of a brief observation,
cf. Mathis v. Fairman, 120 F.3d 88, 91-92 (7th Cir. 1997)
8 No. 01-3745
(odd or unusual behavior without more did not place offi-
cers on notice that a detainee was at risk for suicide when
the officers were unaware of any suicidal tendencies in the
detainee). In the present posture of this case, we must take
as a given that Shepard was aware that Steven had been
arrested for attempting to kill both himself and Rouse, and
that he had learned from both women that Steven was
at risk for suicide.
Even assuming that Shepard knew about Steven’s
suicidal inclinations, Mrs. Cavalieri cannot prevail on Stev-
en’s claim unless she can also establish that Shepard acted
with deliberate indifference to this risk. Deliberate indif-
ference “describes a state of mind more blameworthy
than negligence,” and “something less than acts or omis-
sions . . . with knowledge that harm will result.” Farmer,
511 U.S. at 825. Applying a subjective recklessness test,
the Court in Farmer found that “a prison official cannot
be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to
inmate health or safety.” Id. at 837. The same holds for a
pretrial detainee’s claim under the Fourteenth Amendment.
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 believ-
ing 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.
Shepard insists that he did all that was required of
him, and that even on the record taken in the light
most favorable to Steven, no reasonable trier of fact
could find that he was deliberately indifferent to Steven’s
suicide risk. He focuses on two specific actions he took:
first, his telephone call to Steven to “check on his welfare”
and tell him that his mother was coming to see him, and
No. 01-3745 9
second, his offer to Mrs. Cavalieri to help her arrange for
Steven to see a counselor. Of course, Shepard was not
required to take perfect action or even reasonable action,
even assuming he was aware of the suicide risk; his ac-
tion must be reckless before § 1983 liability can be
found. Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir.
2001). On the other hand, Mrs. Cavalieri is not required
to show that Shepard intended that Steven harm him-
self. Boncher v. Brown County, 272 F.3d 484, 487 (7th
Cir. 2001). On this record, we conclude that the facts tak-
en most favorably to Mrs. Cavalieri would show that
Shepard was deliberately indifferent to Steven’s safety.
Indeed, if we consider Mrs. Cavalieri’s version of events,
Shepard may have deliberately misled her. He told her
that Steven would not be alone and he also behaved as if
he understood the severity of the information she pro-
vided him regarding Steven’s mental health, yet he did
not even take immediate measures that would have
been quite easy for him, such as passing her warnings
along to the CCCF staff. Perhaps Mrs. Cavalieri would
have gone directly to the CCCF if she had known that
Shepard did not intend to inform anyone of their con-
versation. Moreover, Shepard had multiple opportunities
to present this information to the CCCF. His two calls
to the CCCF demonstrate the ease with which he could
have conveyed the information after Steven was trans-
ferred. Perhaps a jury would not believe this version, but
on this record, a jury could find that Shepard’s actions
were reckless.
B
Having established that Mrs. Cavalieri has alleged
facts that, if proven, show that Shepard violated a consti-
tutional right, we must still address Shepard’s argument
that he is entitled to qualified immunity because the
10 No. 01-3745
constitutional right Steven is asserting was not clearly
established at the time of these events. Saucier, 533 U.S.
at 201. Whether a right is clearly established “must be
undertaken in light of the specific context of the case, not
as a broad general proposition.” Id. The right must be
clear enough that “a reasonable official would understand
that what he is doing violates that right.” Id. at 202.
Although the officer must have knowledge of the right, it
is not necessary that a case be “on all fours” with this
one for the case to go to a jury. Montville v. Lewis, 87 F.3d
900, 902 (7th Cir. 1996). Instead, the question we must
ask is whether the law provided Shepard with “fair warn-
ing” that his conduct was unconstitutional. Hope v. Pelzer,
122 S.Ct. 2508, 2516 (2002) (rejecting the Eleventh Cir-
cuit standard that a previous case must be “fundamen-
tally similar” to be clearly established).
Although Shepard and Mrs. Cavalieri differ over how
the constitutional right should be characterized, we
agree with the district court that at bottom, the right
Mrs. Cavalieri asserts on behalf of Steven is the right to
be free from deliberate indifference to suicide. There is
no doubt that this right was clearly established prior
to Steven’s 1998 suicide attempt. See Hall v. Ryan, 957
F.2d 402, 406 (7th Cir. 1992).
Shepard argues, however, that the present case repre-
sents an extension of earlier law because Steven was
transferred from the custody of the Champaign Po-
lice Department (his employer) to the custody of the
CCCF, a county facility. He likens this case to Collignon
v. Milwaukee County, 163 F.3d 982 (7th Cir. 1998), in
which this court found that Milwaukee County was not
responsible for the suicide of a pretrial detainee who
killed himself after being released to his parents. The
most important difference between Collignon and this
case, however, is that in Collignon the detainee left state
custody upon his transfer, and here Steven remained in
No. 01-3745 11
state custody. Nothing in Collignon implies that the
court was establishing a general rule of non-liability for
transferees. In fact, Shepard’s argument implies that he
did not have to pass along any information to his col-
leagues in the county jail. No responsible officer in
Shepard’s position would have taken such a position. If
Steven had been armed, Shepard could not have stayed
silent and waited to see if the CCCF officials found the
weapon; if Steven was prone to violent outbursts, Shepard
similarly could not have left his colleagues and the
other county detainees at Steven’s mercy. While there
are different arms of state government, the walls between
them are not as high as Shepard implies. To the contrary,
each must keep the other informed about material facts,
including suicide risks. See Farmer, 511 U.S. at 832(officials required to take adequate measures in response
to known risk); see also Viero v. Bufano, 901 F.Supp. 1387,
1394 (N.D. Ill. 1995) (adequate measures include com-
municating likely suicide risk to transferee correctional
facility). Even the Collignon court conceded that it would
have been facing a different problem if the officials had
known that the detainee was a likely suicide risk. Id.
at 990.
Of course, the law did not require Shepard to sit by
the telephone all day, communicating with the CCCF
about transferred prisoners. The question is what he
was supposed to do in the face of the knowledge of a life-
threatening situation that he actually had. He made sev-
eral telephone calls to the CCCF, but he passed by the
opportunity to mention that he had been informed that
Steven was a suicide risk, and that the jail itself had
recognized this only a month earlier. If Shepard had known
that a detainee had an illness that required life-saving
medication, he would also have had a duty to inform the
CCCF, or any other entity that next held custody over the
detainee. See Egebergh v. Nicholson, 272 F.3d 925, 927-28
(7th Cir. 2001) (denying a qualified immunity defense
12 No. 01-3745
where police officers knew that the arrestee was an insulin-
dependent diabetic, knew that such people need regular
insulin injections, knew that the failure to give injections
was potentially fatal, and nonetheless failed to make sure
the injections were given, with fatal consequences).
We conclude that the law as it existed at the time of
Steven’s suicide attempt provided Shepard with fair no-
tice that his conduct was unconstitutional. Hope, 122
S.Ct. at 2516. The rule that officials, including police
officers, will be “liable under section 1983 for a pre-trial
detainee’s suicide if they were deliberately indifferent to
a substantial suicide risk,” Hall v. Ryan, 957 F.2d 402,
406 (7th Cir. 1992), was clearly established prior to 1998.
The fact that several state agencies were working togeth-
er on his case, and that Steven happened to attempt sui-
cide in the county’s facility rather than at the police sta-
tion, does not change this analysis.
III
The judgment of the district court is AFFIRMED.
MANION, Circuit Judge, dissenting. The threshold in-
quiry we must undertake in a qualified immunity anal-
ysis is whether plaintiff’s allegations, if true, establish
a constitutional violation. Saucier v. Katz, 533 U.S. 194,
201 (2001). I disagree with the court’s conclusion that the
facts most favorable to the plaintiff are sufficient to al-
low a jury to conclude that Officer Shepard acted with
deliberate indifference or with a reckless disregard for
Steven Cavalieri’s safety while Steven was detained at
No. 01-3745 13
the Champaign County Correctional Facility (CCCF). Even
if Shepard violated Steven’s constitutional right by not
informing CCCF of his suicide risk, he may nevertheless
be shielded from liability for civil damages if his actions
did not violate “clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A
constitutional right is clearly established when its con-
tours are “sufficiently clear that a reasonable official
would understand that what he is doing violates that
right. . . . [I]n the light of pre-existing law the unlawfulness
must be apparent.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). In this case, Shepard did not have reasonable
notice at the time of Stephen’s incarceration that the
conduct alleged by the plaintiffs was unconstitutional. I
therefore respectfully dissent.
The court finds that because Shepard failed to com-
municate Steven Cavalieri’s possible suicide risk to in-
take officials at the CCCF, a jury could find that Shepard
was deliberately indifferent under the Eighth and Four-
teenth Amendments. Under the deliberate indifference
standard Mrs. Cavalieri must allege facts that show that
Shepard was aware of Steven’s suicide risk and never-
theless acted or failed to act with deliberate indifference
to a substantial risk of serious harm to Steven’s health
or safety. Farmer v. Brennan, 511 U.S. 825, 836 -37 (1994).
See also West v. Waymire, 114 F.3d 646, 651 (7th Cir. 1997)
(“plaintiff must prove that the defendant, knowing that
the plaintiff (or someone) was at serious risk of being
harmed, decided not to do anything to prevent that harm
from occurring even though he could easily have done so”)
(emphasis added). Because suicide is a serious medical
risk, the alleged facts in this case must show, under the
deliberate indifference standard, that Shepard demon-
strated a “reckless disregard for the known serious med-
ical need, by inaction or woefully inadequate action.”
14 No. 01-3745
Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir. 1998);
Sanville v. McCaughtry, 266 F.3d 724, 740-41 (7th Cir.
2001) (holding that “[t]o be liable under the Eighth Amend-
ment 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’ ” (citation omitted)). An official may
not be liable for mere negligence. Farmer, 511 U.S. at
836. See also, Soto v. Johansen, 137 F.3d 980, 981 (7th Cir.
1998) (“mere negligence or even gross negligence does
not constitute deliberate indifference”) (internal quota-
tions and citation omitted). Moreover, officials may also
escape liability “if they responded reasonably to the risk,
even if the harm ultimately was not averted.” Farmer, 511
U.S. at 844. However, by labeling as deliberate indiffer-
ence Shepard’s failure to communicate Steven’s mother’s
and girlfriend’s concerns over his suicide risk to CCCF
intake officials, the court has equated deliberate indif-
ference with negligence. It is undisputed that Shepard
did in fact take responsive action to Steven’s emotional
distress, but the court incorrectly holds that a jury
could find that Shepard violated Steven’s constitutional
rights because he did not follow a better course of action.
The facts most favorable to Mrs. Cavalieri cannot estab-
lish that Shepard was deliberately indifferent to Steven
Cavalieri’s risk of suicide. Instead, under the “woefully
inadequate” standard, Hudson, 148 F.3d at 863, Shepard’s
rather intensive involvement with Steven should re-
duce rather than increase his liability for deliberate
indifference. Nevertheless, it appears that court faults
Shepard for being too attentive by remaining personally
involved with the case.
After he arrived for duty, Shepard was sent to the
location where Steven had just been captured after
No. 01-3745 15
the kidnapi ng and three-hour standoff with the SWAT
team. As the plaintiff’s brief notes, “A SWAT operation is
a major event, and one involving hostages did not occur
often in Champaign.” Clearly everyone at the correctional
facility was fully aware of the crisis, as well as Shepard
when he conducted a one-hour interview with Steven at
the city jail after he was first arrested. Steven was then
transferred to the CCCF, where he had been incarcerated
under suicide watch only weeks earlier.
After the arrest, Shepard participated in an interview
with the victim, Stephanie Rouse, where she spoke of
Steven’s suicide threats. He also interviewed Steven’s
mother where she informed him that she wanted
to make arrangements for Steven to see a counselor.
Mrs. Cavalieri also informed Shepard that during Stev-
en’s stay at CCCF one month earlier he was on suicide
watch. Shepard placed a subsequent call to Steven at
the CCCF at 11:00 a.m. where he informed Steven that
his mother would be contacting him about counseling.
During this last discussion, Steven told Shepard that
he was fine and looking forward to seeing his mother.
Finally, Shepard directed Mrs. Cavalieri to County Med-
ical Health so that she could arrange for Steven to speak
to a counselor. When Shepard called the CCCF three
hours later to inform them that Rouse had complained
that Steven was making harassing calls to her, he was
informed that Steven had attempted suicide.
This hands-on activity on Steven’s behalf cannot be
described as deliberate indifference to Steven’s condition.
No doubt, in Shepard’s two calls to the CCCF he had
ample opportunity to inform someone that he thought
Steven might pose a suicide risk. Yet one of those calls
was specifically placed to Steven personally in order to
check on his welfare and inform him about Mrs. Cavalieri’s
ongoing efforts to secure counseling. As a matter of law,
Shepard’s time, attention and concern were reasonable
16 No. 01-3745
responses to Cavalieri’s suicide risk and therefore cannot
be described as “woefully inadequate.” See Perkins v.
Lawson, 312 F.3d 872, 875-76 (7th Cir. 2002) (finding no
deliberate indifference when steps were taken to obtain
treatment for inmate); State Bank of St. Charles v. Camic,
712 F.2d 1140, 1146 (7th Cir. 1983) (finding officers had
not acted with deliberate indifference because, in part,
they had taken reasonable actions to prevent suicide).1
1
Deliberate indifference has been found when the state actor
did nothing or next to nothing in response to a substantial sui-
cide or health risk. See Egebergh v. Nicholson, 272 F.3d 925, 927-
28 (7th Cir. 2001) (holding that a jury could infer that police
officers were deliberately indifferent to insulin dependent pa-
tient when they transported him to another jail without adminis-
tering an insulin shot); Sanville v. McCaughtry, 266 F.3d 724,
740-41 (7th Cir. 2001) (holding that plaintiff had stated a claim
of deliberate indifference as to prison guards when they did
nothing for several hours in response to suicidal prisoner’s cov-
ering of the window of his prison cell); Reed v. McBride, 178 F.3d
849, 854 (7th Cir. 1999) (holding that where prison officials knew
about periodic substantial deprivations of food and medicine to
a prisoner and did nothing for almost two years to remedy the
situation, the prisoner met his burden to show an inadequate
response). See also, Jacobs v. West Feliciana Sheriff ’s Dept.,
228 F.3d 388, 395-99 (5th Cir. 2000) (holding that sheriff and
deputy could be found to be deliberately indifferent to plain-
tiff ’s suicide risk when they took some preventative measures but
those measures were obviously inadequate and therefore not
objectively reasonable); Woodward v. Myres, 2002 WL 31744663(N.D. Ill. 2002) (finding that plaintiff had alleged sufficient
facts to establish that intake nurse, sheriff and correctional
facility doctor had acted with deliberate indifference when no
actions were taken protect suicidal detainee); Wilson v. Genessee
Co., 2002 WL 745975 (E.D. Mich. 2002) (finding arresting offi-
cers could be found deliberately indifferent when they did noth-
ing in response to arrestee’s substantial suicide risk); Viero v.
(continued...)
No. 01-3745 17
When examining a claim for deliberate indifference we
are obligated to examine the totality of the circumstances
surrounding the alleged actions or inaction. Dunigan ex
rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th
Cir. 1999); see also Gutierrez v. Peters, 111 F.3d 1364, 1375
(7th Cir. 1996) (holding that isolated instances of neg-
lect “cannot support a finding of deliberate indifference”).
At most it was a negligent act for Shepard not to inform
CCCF (where Steven had been under suicide watch only
a month earlier) of Steven’s current suicide risk. See
Lewis v. Richards, 107 F.3d 549, 553-54 (7th Cir. 1997)
(stating that “[e]xercising poor judgment, however, falls
short of meeting the standard of consciously disregarding
a known risk to his safety”). Under the court’s analysis,
would Shepard be off the hook had he not shown con-
tinued concern for Steven’s case and not spent additional
time with the victim and his mother? Had Shepard sim-
ply called CCCF and said that Steven was a possible sui-
cide risk, he apparently would have been dismissed from
the case with the other defendants.
Deliberate indifference cannot rest on negligent actions
or inactions, but must instead rest on reckless indiffer-
ence to the plight of an inmate. See Mathis v. Fairman, 120
F.3d 88 (7th Cir. 1997) (holding that prison officials could
not be held liable under the reckless disregard standard
for a prisoner’s suicide when their actions were negligent
at most). A single example of alleged neglect, based on
choosing one reasonable course of action over another, will
not create a jury question as to deliberate indifference,
1
(...continued)
Bufano, 925 F.Supp. 1374, 1384 (N.D. Ill. 1996) (finding that
a fact question existed as to officer’s deliberate indifference when
officer did not take any reasonable steps in response to suicide
risk of transferee).
18 No. 01-3745
especially when the court has previously held that “show-
ing deliberate indifference through a pattern of neglect
entails a heavy burden.” Dunigan, 165 F.3d at 591 (7th
Cir. 1999) (emphasis added). The standard threshold for
“liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.” County
of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). By
equating possible negligence with deliberate indifference
the court has impermissibly lowered the bar for prisoner
claims under the Eighth and Fourteenth Amendments.
Even if we were to proceed with the qualified immunity
analysis it has not been established that under the facts
of this case, “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202. Under the standard for liability
for deliberate indifference described in West v. Waymire,
it is clear that Shepard did, in fact, do something to al-
leviate the risk of Steven’s suicide. West, 114 F.3d at 651.
Under this standard, and the wealth of case law equating
deliberate indifference with inaction or woefully inade-
quate action, supra n. 1, Shepard would not have under-
stood that his conduct was unlawful. The court cites Viero
v. Bufano, 901 F.Supp. 1387 (N.D. Ill. 1995), as standing
for the proposition that adequate measures in response
to a suicide risk necessarily include communicating such
risk to personnel at the correctional facility. In a subse-
quent proceeding in that same case, the district court
noted that the officer did much less than just fail to com-
municate the prisoner’s substantial risk of suicide to the
committing institution. Viero v. Bufano, 925 F.Supp. 1374,
1384 (N.D. Ill. 1996). The officer also failed to take the
prisoner’s Ritalin prescription from her mother, and, in
short, failed to “take any such reasonable steps in response”
to the victim’s medical needs. That is not what occurred
in this case. The court also cites Egebergh v. Nicholson,
272 F.3d 925, 927-28 (7th Cir. 2001) as relevant to the
No. 01-3745 19
proposition that an officer must communicate all known
medical information to the custodial entity. However, in
Egebergh the officers in question were not liable for delib-
erate indifference because they failed to communicate to
Cook County Jail personnel that the diabetic prisoner had
future medical needs. Id. Rather, the court stated that “a
jury could infer that they knew that depriving him of his
morning shot [when he was in the offending officer’s sole
custody] would endanger his health and that they deprived
him of it for no better reason than to get him out of the
police station.” Id. at 928. I agree with the court that on the
date of Cavalieri’s nearly successful suicide attempt it
was clearly established that a police officer on duty could
not act with deliberate indifference toward a pretrial
detainee who the officer believed was a substantial sui-
cide risk. Estate of Cole v. Fromm, 94 F.3d 254, 258 (7th
Cir. 1996). However, under this standard, an officer is only
required to act reasonably, and as a matter of law, Shepard
took reasonable actions in this case.
Obviously if a jury believes Shepard when he testifies
that he honestly believed, after talking with Steven, that
he was not a suicide risk at that time, he will not be
found to be deliberately indifferent. But before going to
a jury the plaintiff must allege that Shepard knew of the
risk (not just should have known), knew that he should
inform CCCF personnel of the risk, but deliberately or
recklessly failed to do so. Instead, the plaintiff has at
most alleged a negligent failure to inform CCCF of the
suicide risk. That is not enough. Shepard should have
been granted summary judgment along with the other
named defendants.
20 No. 01-3745
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-24-03