Cornel J. Rosario v. Daniel R. Braw

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2072
C ORNEL J. R OSARIO , as Special Administrator of the
Estate of Marc J. Rosario, deceased,
Plaintiff-Appellant,
v.
D ANIEL R. B RAWN, JEFFREY A. SCHWITZ, and
A DAM C. W INKLER,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-0590—Patricia J. Gorence, Magistrate Judge.
A RGUED O CTOBER 31, 2011—D ECIDED M ARCH 1, 2012
Before K ANNE and W ILLIAMS, Circuit Judges, and
D EG UILIO , District Judge.Œ
K ANNE, Circuit Judge. In May 2008, Washington
County Sheriff deputies responded to a call indicating
Œ
The Honorable Jon E. DeGuilio, United States District Court
for the Northern District of Indiana, sitting by designation.
2 No. 11-2072
that Marc Rosario had left the home he shared with his
parents, and that he was possibly a danger to himself
and others. The responding officers located Marc and
eventually determined that he should be involuntarily
committed pursuant to Wis. Stat. § 51.15. During Marc’s
initial evaluation at a nearby hospital, the officers discov-
ered a nylon wallet on Marc’s person, but their search
was not thorough enough to discover that the wallet
contained a concealed razor blade. Later that morning
while still in police custody, Marc regained possession
of the razor blade during his transport from the hospital
to the Winnebago Mental Health Institute. As he sat
quietly in the back seat of the squad car, Marc used the
concealed razor blade to commit suicide. As Special
Administrator to Marc’s estate, Marc’s father, Cornel
Rosario filed a § 1983 suit alleging that the officers were
deliberately indifferent towards Marc’s risk of suicide
in violation of the Fourteenth Amendment. Finding
that Rosario could not overcome the high hurdle
imposed by the deliberate indifference standard, the
district court entered summary judgment for the defen-
dants. We affirm.
I. B ACKGROUND
Although tragic, the facts here are generally undisputed.
Just after midnight on May 8, 2008, Cornel Rosario
called the Washington County, Wisconsin Sheriff’s De-
partment to report that his son Marc had just left home
and was possibly a danger to himself and others. Deputy
Daniel Brawn took the call at which time the dispatcher
No. 11-2072 3
informed Brawn that Marc had access to knives. At ap-
proximately 1:06 a.m., Deputy Brawn located Marc a
short distance from the Rosario home. After Deputy
Brawn made contact with the subject, Marc explained
that he was undergoing a “transformation” into a “fire-
flying serpent.” Deputy Brawn also noticed the highly
unusual rate at which Marc was consuming water.
Clearly concerned with Marc’s mental state, Deputy
Brawn contacted his supervisor, Sergeant Ryan Herman,
to discuss the best course of action, including whether
it was prudent to involuntarily commit Marc pursuant
to Wis. Stat. § 51.15.1 Sergeant Herman and Deputy
Brawn agreed that Marc should initially be taken to
the Acute Care Services division of the Washington
County Department of Human Services (“ACS”) for
further evaluation before making a § 51.15 determination.
To transport Marc to ACS, Deputy Brawn placed
Marc in handcuffs. Because of Marc’s larger stature,
Deputy Brawn used two sets of handcuffs to make
Marc more comfortable—one cuff was placed on each
wrist and joined in the middle of Marc’s back. Before
placing Marc in his squad car, Deputy Brawn searched
Marc during which he located and removed a three-to-
four-inch pocket knife, a cigarette lighter, and a chain
wallet containing a large amount of cash. After the
1
Under Wisconsin law, “A law enforcement officer . . . may
take an individual into custody if the officer . . . has cause to
believe that the individual is mentally ill, is drug dependent,
or is developmentally disabled . . . .” Wis. Stat. § 51.15(1)(a).
4 No. 11-2072
search, Marc agreed that speaking with a priest at Holy
Hill Basilica might calm his nerves. Deputy Brawn and
Deputy Michael Anderson transported Marc to Holy
Hill at approximately 1:38 a.m., only to find that a priest
was unavailable. A few minutes later, ACS mental
health specialist, Matt Wiedmeyer, arrived at the church
in an attempt to further assess Marc’s condition. Unable
to gather any information from Marc, Wiedmeyer
departed twenty minutes later. At 2:30 a.m., Marc was
given permission to step out of the squad car to stretch
his legs. Deputy Brawn also stepped away momentarily
to discuss Marc’s condition with officers who had
spoken with Marc’s parents. Out of the car but still in
handcuffs, Marc repositioned his hands in such a way
that allowed him to break his eyeglass lenses. Marc then
attempted to use the broken lenses to cut his wrists, but
Deputies Anderson and Brawn restrained Marc before
he harmed himself.
Based on the totality of Marc’s behavior, Deputy
Brawn was now convinced that Marc should be involun-
tarily detained according to § 51.15. Deputies Brawn
and Anderson transported Marc to St. Joseph’s Hos-
pital for a preliminary medical screening. Deputy Adam
Winkler and Wiedmeyer met Deputies Brawn and Ander-
son at the hospital. On the way to St. Joseph’s, Deputy
Brawn kept the squad car’s interior dome light on to
monitor Marc. Marc behaved normally during the trans-
port. Upon arriving, Marc was taken to an examination
room, where both of his wrists were handcuffed to the
bed rails. For approximately three hours, Dr. James
Erickson and several nurses monitored Marc and per-
No. 11-2072 5
formed various medical tests. Marc generally cooperated
with each procedure, although he occasionally leaned
over the bed railing at a forty-five degree angle. Seeing
this unusual movement, Deputy Brawn asked Marc if
everything was okay, at which point Marc resumed
sitting on the bed in a normal, upright position. Another
time, Marc gave a thumbs-up response to Deputy Brawn
after being asked whether everything was okay.
Marc’s only other movement during his examination
was when he used one of his hands to motion to his
left rear pants pocket. Noticing Marc’s hand, Deputy
Winkler went to Marc’s bedside and removed a thin,
nylon tri-fold wallet, which had not been discovered
during Deputy Brawn’s previous pat-down search.
Deputy Winkler removed the contents of the wallet,
which included cash, a plastic card similar to a credit
card, and a small silver foil packet. Of the officers in
the hospital room, only Deputy Winkler held the foil
packet, which the contents to him felt soft. Deputy
Brawn commented that the foil packet resembled a Band-
Aid. The deputies never actually opened the foil
packet even though one side of the package con-
tained the words “Surgical Blade.” Had Deputy Winkler
or anyone else actually opened the foil packet, they
would have discovered a small razor blade consistent
with the writing on the package. The parties agree
that the deputies did not read the “Surgical Blade” text
or realize that the packet actually contained a razor
blade. Having satisfied himself with his inspection,
Deputy Winkler placed each item back in the nylon
6 No. 11-2072
wallet and placed the wallet inside one of Marc’s shoes,
which were located on the floor at the foot of Marc’s
bed. Before leaving the hospital, Marc regained posses-
sion of his wallet, and thus, the razor blade. Although
there is some dispute whether a St. Joseph’s nurse
returned the wallet to Marc or Marc himself simply
placed it in his pocket, the only relevant fact for our
purposes is that Marc regained possession of the razor
blade. The parties do not dispute that the Sheriff’s De-
partment formally disciplined Deputies Brawn and
Winkler in part for failing to observe Marc regain pos-
session of his wallet.
At the conclusion of the St. Joseph’s examination,
the Winnebago Mental Health Institute in Oshkosh
agreed to accept Marc for admission as a § 51.15 pa-
tient. Deputy Jeffrey Schwitz assisted Deputy Brawn
with Marc’s transport to Oshkosh. Before leaving, the
deputies placed Marc in belly chains—a type of restraint
where individual cuffs attach to a steel chain placed
around the person’s waist. Deputy Schwitz twice
searched the rear of the squad car for weapons or other
foreign objects before allowing Marc to enter. The
officers did not search Marc’s person before leaving
for Oshkosh.
During the trip from St. Joseph’s to Winnebago
Mental Health Institute, Deputy Schwitz drove, Deputy
Brawn sat in the front passenger seat, and Marc sat in
the back seat. In the squad car, a solid steel partition
containing a sliding Plexiglas and mesh panel separated
Marc from the deputies. Because of the divider, the depu-
No. 11-2072 7
ties were unable to observe Marc’s hands during trans-
port, although Deputy Schwitz could observe Marc’s
face through the rearview mirror. Additionally, Deputy
Brawn occasionally asked Marc if he was okay, to which
Marc responded affirmatively by grunting or sitting
upright. Deputy Brawn, turning his head toward the
back seat, also noticed that Marc would sometimes lean
to one side of the squad car, but Deputy Brawn con-
sidered such movements to be normal during longer
trips. Neither officer noticed any unusual behavior
from Marc until he slumped over in the back seat. As
Marc slumped over, Deputy Schwitz noticed that Marc’s
face and neck were covered in blood. Seeing Marc’s
injuries, Deputy Schwitz activated the car’s emergency
lights and drove to the Winnebago County Sheriff’s
Department. Meanwhile, Deputy Brawn placed a 911 call
requesting that an ambulance meet the squad car in
the Sheriff’s Department’s parking lot. Upon the depu-
ties’ arrival, they both got out of the vehicle and at-
tempted to administer first aid to Marc, including
placing a large gauze bandage on his open wounds.
Marc fought the deputies’ efforts and he even managed
to tear off the bandage. The paramedics took over
Marc’s medical care when they arrived, but Marc ulti-
mately died in the parking lot of self-inflicted wounds
to his neck. Marc had used the razor blade from the
foil packet to cut himself.
As the Special Administrator for his son’s estate,
Cornel Rosario brought a 42 U.S.C. § 1983 suit against
Deputies Brawn and Schwitz and former Deputy
8 No. 11-2072
Winkler (collectively, the “defendants” or “officers”)
alleging the officers were deliberately indifferent to
Marc’s risk of suicide in violation of the Fourteenth
Amendment. The defendants moved for summary judg-
ment on June 15, 2010. By the consent of the parties,
Magistrate Judge Gorence considered the motion and
granted summary judgment in favor of the defendants.
Cornel Rosario filed this timely appeal.
II. A NALYSIS
Summary judgment is appropriate only when “the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). We review
grants of summary judgment de novo, Berry v. Chicago
Transit Auth., 618 F.3d 688, 690 (7th Cir. 2010), viewing
the record in the light most favorable to Rosario and
drawing all reasonable inferences in his favor, McCann
v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).
Although we have previously cautioned against weighing
evidence at summary judgment, Kodish v. Oakbrook
Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010),
we have also said that “a factual dispute is ‘genuine’
only if a reasonable jury could find for either party,”
SMS Demag Aktiengesellschaft v. Material Scis. Corp.,
565 F.3d 365, 368 (7th Cir. 2009). On appeal, Rosario
primarily argues that the district court erred by granting
summary judgment for the defendants. Rosario also
preemptively argues that the officers are not entitled to
qualified immunity.
No. 11-2072 9
A. Deliberate Indifference
The Eighth Amendment’s ban on cruel and unusual
punishment includes a proscription against deliber-
ately indifferent treatment towards prisoners. Farmer v.
Brennan, 511 U.S. 825, 832 (1994). “Although the Eighth
Amendment applies only to convicted persons, pretrial
detainees . . . are entitled to the same basic protections
under the Fourteenth Amendment’s due process clause,”
and we apply the same deliberate indifference standard
in both types of cases. Minix v. Canarecci, 597 F.3d
824, 831 (7th Cir. 2010). That said, a successful § 1983
deliberate indifference claim requires Rosario to prove
that “(1) the harm that befell the prisoner [is] objectively,
sufficiently serious and a substantial risk to his or her
health or safety, and (2) the individual defendants
were deliberately indifferent to the substantial risk to
the prisoner’s health and safety.” Collins v. Seeman, 462
F.3d 757, 760 (7th Cir. 2006). In suicide cases, the
objective element “is met by virtue of the suicide itself,
as it goes without saying that suicide is a serious harm.”
Id. (quoting Sanville v. McCaughtry, 266 F.3d 724, 733 (7th
Cir. 2001)). As such, Rosario turns our attention to the
second element, where we have long required a dual
showing in prison-suicide cases. Namely, Rosario must
prove that the defendants “(1) subjectively knew the
prisoner was at substantial risk of committing suicide
and (2) intentionally disregarded the risk.” Minix, 597
F.3d at 831 (quoting Collins, 462 F.3d at 761). For
purposes of summary judgment, the officers acknowl-
edge that they subjectively knew Marc was at a
substantial risk of committing suicide. Thus, the only
10 No. 11-2072
issue for our review is whether Rosario satisfied his
summary judgment burden by showing that the officers
intentionally disregarded Marc’s risk of suicide.
Rosario’s hope for reversal rests almost entirely on
his misinterpretation of a district court opinion in
Mombourquette v. Amundson, 469 F. Supp. 2d 624 (W.D.
Wis. 2007), and the cases on which it relied, see, e.g.,
Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006);
Sanville, 266 F.3d at 737. The district court in Mombour-
quette correctly concluded that a defendant can be
found liable for deliberate indifference if she was aware
of the risk and did not respond reasonably to that risk.
Id. at 637. But, Rosario’s reading of Mombourquette,
Borello, and Sanville clings to the reasonableness of the
officers’ actions in an apparent attempt to equate
the deliberate indifference standard with a negligence
standard. In doing so, he highlights three instances
where the officers acted unreasonably: (1) they failed to
fully inspect the foil packet containing the razor blade;
(2) they allowed Marc to regain possession of the foil
packet; and (3) they failed to monitor Marc during the
trip to Winnebago Mental Health Institute. To Rosario,
each action was unreasonable in light of what the
officers knew about Marc’s condition.
As a threshold matter, Rosario is wrong to focus
so heavily on Mombourquette’s use of the term reason-
able. Although we require that prison officials act rea-
sonably when presented with a detainee’s substan-
tial risk of harm, Peate v. McCann, 294 F.3d 879, 882
(7th Cir. 2002), we do not assess the officers’ actions
No. 11-2072 11
according to a mere negligence standard. To the con-
trary, we have consistently held that deliberate indif-
ference “requires a showing of more than mere or gross
negligence.” Collins, 462 F.3d at 762 (quoting Matos ex rel.
Matos v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003));
see also Borello, 446 F.3d at 749; Woodward v. Corr. Med.
Servs. of Ill., 368 F.3d 917, 926 (7th Cir. 2004); Soto v.
Johansen, 137 F.3d 980, 981 (7th Cir. 1998); Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997); Snipes v. DeTella,
95 F.3d 586, 590 (7th Cir. 1996). And Mombourquette is
no different. 469 F. Supp. 2d at 637 (“The deliberate
indifference standard requires more than a finding of
negligence but less than a showing of intentional harm.”).
We have even characterized the standard as imposing
a high hurdle on plaintiffs because it requires a
“showing as something approaching a total unconcern
for the prisoner’s welfare in the face of serious risks.”
Collins, 462 F.3d at 762 (citation and quotation marks
omitted). In other words, the officers may escape liability
even if they did not take perfect action. See Cavalieri v.
Shepard, 321 F.3d 616, 622 (7th Cir. 2003) (defendant’s
“action must be reckless before § 1983 liability can be
found”); Peate, 294 F.3d at 882 (“Prison officials
who actually knew of a substantial risk to inmate health
or safety are free from liability if they responded reason-
ably to the risk, even if the harm ultimately was not
averted.”).
With the correct deliberate indifference standard in
hand, we agree with the district court that Rosario pre-
sented little evidence suggesting that the officers acted
recklessly or that they deliberately ignored Marc’s
12 No. 11-2072
suicidal tendencies. Instead, the overall picture of the
officers’ actions towards Marc is one of protection
and compassion. For example, Deputy Brawn searched
Marc on contact and removed a pocket knife from
his possession; Deputy Brawn took Marc to Holy Hill
Basilica in an effort to relax Marc; the officers allowed
Marc to stretch his legs at Holy Hill; an ACS mental
specialist was called to the scene to assess Marc’s condi-
tion; the officers immediately sought medical atten-
tion when Marc displayed self-destructive behavior at
Holy Hill; Marc was placed in two sets of handcuffs
during the first transport and then belly chains during
the second transport in order to make his ride more
comfortable; Deputy Brawn kept the police cruiser’s
dome light on during the trip to St. Joseph’s as a means
of monitoring Marc; Deputy Brawn asked Marc at St.
Joseph’s whether he was comfortable or whether he
was feeling okay; similarly, Deputy Brawn occasionally
asked Marc if he was okay during the trip to Oshkosh;
Deputy Brawn immediately radioed for medical help
when Marc started bleeding; and both deputies per-
sonally administered first aid to Marc in spite of his
resistance.
Admittedly, the officers’ actions were not perfect.
Specifically, the officers should have paid greater
attention to the objects in Marc’s nylon wallet and
they should have immediately inventoried the wallet
for safekeeping. But this inattention to detail, although
ultimately tragic, does not support a constitutional
claim that the officers intentionally disregarded Marc’s
known safety risks. We do not require perfection.
No. 11-2072 13
Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004).
Rather, we require Rosario to prove that the officers’
conduct was “something approaching a total unconcern”
for Marc’s welfare, Collins, 462 F.3d at 762, and evidence
of such mistreatment is absent. The undisputed record
reveals Deputy Winkler felt the foil packet and noted
that it felt soft. Likewise, Deputy Brawn commented
that the packet appeared to be a Band-Aid. The fact
that the deputies were concerned enough to search
Marc’s person and inspect the contents of the wallet
contradicts Rosario’s theory that the officers were delib-
erately indifferent to Marc’s condition. The record
also does not suggest that either deputy was reckless
in permitting Marc to regain possession of his wallet.
Rather, Deputy Winkler specifically placed the wallet
in Marc’s shoe as a means of keeping the items away
from the still-handcuffed Marc. Even though the officers
took their eyes off the wallet for some period of time,
that evidence does not support an inference that
the officers recklessly allowed Marc to harm himself.
Throughout their time with Marc, the officers plainly
did more right than wrong. When we review the to-
tality of their actions that night, we conclude that the
officers did not act with deliberate indifference even
if there were isolated missteps along the way.
B. Qualified Immunity
Rosario also preemptively argues that the officers are
not entitled to qualified immunity. The district court
appropriately did not consider this argument because
14 No. 11-2072
Rosario did not establish that the officers deprived
Marc of a constitutional right. Because we find that the
officers did not deprive Marc of his Fourteenth Amend-
ment right to due process, we need not consider
Rosario’s argument. Pearson v. Callahan, 555 U.S. 223,
236 (2009); Van den Bosch v. Raemisch, 658 F.3d 778, 786
(7th Cir. 2011).
III. C ONCLUSION
We hold that Rosario did not produce sufficient evi-
dence tending to show that the officers were deliberately
indifferent towards Marc’s risk of suicide. Because no
reasonable jury could find in Rosario’s favor, we A FFIRM
the district court’s grant of summary judgment for the
defendants.
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