Christopher Davis-Clair v. Correctional Officer Turck

NONPRECEDENTIAL DISPOSITION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 February 14, 2018*
Decided March 13, 2018
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-2148
CHRISTOPHER DAVIS-CLAIR, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 17-CV-389-JPS
OFFICER TURCK, et al., J.P. Stadtmueller,
Defendants-Appellees. Judge.
ORDER
Christopher Davis-Clair, a Wisconsin prisoner, appeals the dismissal of his suit
against prison staff for violating the Eighth Amendment. See 42 U.S.C. § 1983. He
alleges they ignored warnings that he would attempt suicide (as he later tried) if he was
ordered to be transferred to a prison far from his family. The district judge dismissed
the complaint for failure to state a claim because Davis-Clair did not plausibly allege
* The defendants were not served in the district court and are not participating in
this appeal. The 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. 17-2148 Page 2
that any defendant was indifferent to his risk of suicide. That reasoning was correct, so
we affirm.
We accept as true the allegations in Davis-Clair’s complaint and its attachment.
See FED. R. CIV. P. 10(c); Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). Prison
administrators at Green Bay Correctional Institution considered transferring
Davis-Clair to a higher security prison after he received two major conduct reports.
Upon learning of his impending transfer, Davis-Clair confided to a prison social worker
that this transfer “was not a good idea” because the other prison was “far away” from
his home and without family visits he would attempt suicide. He also wrote to the
prison’s psychological services unit asking “to see someone” because he thought that
transferring him “away from his family … would make him suicidal.” He never
received a response from that unit.
The Program Review Committee held a hearing on the transfer issue, and Davis-
Clair asked the committee members to have someone check on him “if I get approved to
go to” the higher security prison because “I know I will attempt suicide.” Two
committee members, identified as O’Dell and Fancois, promised to report Davis-Clair’s
comment to the supervisors of psychological services and the security staff at both his
current and future institutions. And in the hearing report regarding the transfer, the
committee ordered that Davis-Clair’s comment regarding “self-harm … be
communicated” to the staff of the new prison.
After the committee issued its report, a correctional officer identified only as
Turck broke the news to Davis-Clair that he was being transferred. Davis-Clair
responded, “I need you to get the psychologist over here because if not you all are
going to have to send me to observation.” (Under prison regulations, prisoners who
pose a danger to themselves or others may be placed under observation for monitoring.
WIS. ADMIN. CODE DOC § 311.04(1).) Turck replied, “Just pack your shit and [we] will
get to that later,” and then briefly walked away. Davis-Clair began to cut his wrist with
a razor blade. Minutes later Turck returned, ordered Davis-Clair to stop, and
summoned a sergeant who convinced Davis-Clair to stop cutting himself. Turck then
placed him in observation.
Davis-Clair sued five officials alleging that they were deliberately indifferent to
his risk of suicide: the social worker, the supervisor of psychological services, Program
Review Committee members O’Dell and Fancois, and Officer Turck. At screening the
judge dismissed the complaint with prejudice for failure to state a claim. 28 U.S.C.
§ 1915A. The judge reasoned that Davis-Clair did not plausibly allege that any
No. 17-2148 Page 3
defendant knew of, and was indifferent to, a substantial risk that Davis-Clair might
attempt suicide.
We take a fresh look at Davis-Clair’s complaint. See Arnett, 658 F.3d at 751.
To plead an Eighth Amendment claim, he needed to allege plausibly that prison staff
(1) knew of a significant likelihood that he would imminently attempt suicide and
(2) failed to take reasonable steps to prevent his attempt. See Estate of Miller ex rel.
Bertram v. Tobiasz, 680 F.3d 984, 989–90 (7th Cir. 2012); Sanville v. McCaughtry, 266 F.3d
724, 737 (7th Cir. 2001). The gist of his complaint is that the defendants knew but
ignored that a transfer would make him suicidal and he would not have harmed
himself had psychological services been provided.
We agree with the district judge that Davis-Clair has “plead[ed] facts [that] show
he has no claim.” McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). A risk of
future harm must be “sure or very likely” to give rise to “sufficiently imminent
dangers” before an official can be liable for ignoring that risk. See Baze v. Rees, 553 U.S.
35, 50 (2008) (Roberts, C.J., plurality opinion) (emphasis omitted); Helling v. McKinney,
509 U.S. 25, 33–34. (1993). Davis-Clair remarked to the social worker that he would
attempt suicide at some unspecified time after his transfer. That does not convey an
imminent risk. Davis-Clair responds that the social worker—and the other defendants,
for that matter—violated section 311.04(1) of the Wisconsin Administrative Code, which
he believes required them to place him in observation status. But the Constitution does
not require compliance with state law. Snowden v. Hughes, 321 U.S. 1, 11 (1944); Whitman
v. Nesic, 368 F.3d 931, 935 n.1 (7th Cir. 2004).
The claim against the supervisor of the psychological services unit also fails
because the complaint’s allegations preclude a reasonable inference that the supervisor
recklessly disregarded a significant risk of imminent suicide. See Estate of Miller,
680 F.3d at 989. Davis-Clair’s note to the psychological services unit, like his statement
to the social worker, reflected that he might attempt suicide after a transfer and thus it
did not convey an imminent risk. Similarly, the report of the Program Review
Committee communicated no imminent risk. Davis-Clair alleges that he told committee
members that he would attempt suicide if he was approved for transfer to the higher
security prison, but this comment does not state when he might make his attempt. Even
if we assume that imminence is implied and further assume that the comment was
reported to the supervisor of the psychological services unit, Davis-Clair alleges only
that the supervisor did not respond to a single, secondhand report. That is an allegation
of negligence, which is insufficient to state a claim for deliberate indifference.
No. 17-2148 Page 4
See Collignon v. Milwaukee County, 163 F.3d 982, 988–89 (7th Cir. 1998). This is not a case
where the supervisor is alleged to have disregarded several notices of an imminent risk
of suicide, including firsthand reports directly from the prisoner, as was the case with
the nurse and psychological services worker in Estate of Miller, 680 F.3d at 989–91.
Davis-Clair’s allegations against Turck reveal that the officer responded
reasonably under the circumstances. A “request to see a psychiatric crisis counselor
does not, standing alone, put a prison officer on notice of the imminent possibility of
suicide.” Pittman ex rel. Hamilton v. County of Madison, 746 F.3d 766, 777 (7th Cir. 2014).
Davis-Clair commented about needing to go to “observation.” Turck told him to
prepare for the transfer, left the cell momentarily, and returned minutes later to see
Davis-Clair harming himself. Turck intervened immediately, helped stop the suicide
attempt, and delivered him to observation. An official who responds reasonably to a
risk of harm is not deliberately indifferent to it even if the official fails to avert the harm.
See Farmer v. Brennan, 511 U.S. 825, 844 (1994); Estate of Miller, 680 F.3d at 990.
The claims against committee members O’Dell and Francois collapse because
Davis-Clair’s allegations reveal that they too responded reasonably to his comment
about self-harm. After hearing Davis-Clair say that he would attempt suicide if
approved for transfer, they took two protective measures. First, they decided that
psychological services and security staff at both institutions needed to know about the
comment, and their hearing report ordered that these officials be notified. That was a
reasonable response. Davis-Clair has relied on the committee report and the instruction
in it for part of his claim, so we may too. See Carroll v. Yates, 362 F.3d 984, 986 (7th Cir.
2004) ("[D]ismissal on the basis of facts in [a pleading exhibit] is proper only if the
plaintiff relies upon it ‘to form the basis for a claim or part of a claim.’” (quoting
Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753–54 (7th Cir. 2002))).
AFFIRMED