Estate of Cole by Pardue v. Fromm

• Decision Date: 12 August 1996
• Docket Number: No. 95-4087,95-4087
• Citation: 94 F.3d 254
• Parties: The ESTATE OF Max G. COLE, by its Administratrix Lois PARDUE, and Lois Pardue, Plaintiffs-Appellants, v. Jackie FROMM, Phill Spires, Dan Beck, Katie Grier Easton, Clement Morris, and Nancy Butler, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 254

94 F.3d 254

The ESTATE OF Max G. COLE, by its Administratrix Lois PARDUE, and Lois Pardue, Plaintiffs-Appellants, v. Jackie FROMM, Phill Spires, Dan Beck, Katie Grier Easton Clement Morris, and Nancy Butler, Defendants-Appellees.

No. 95-4087.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1996.

Decided Aug. 12, 1996.

Hamid R. Kashani (argued), Indianapolis, IN, David A. Nowak, Columbus, IN, for Estate of Max G. Cole, Lois Pardue.

Robert W. Wright, Burton M. Harris (argued), Mary M. Lueders, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Jackie Fromm.

Robert W. Wright, Burton M. Harris (argued), Locke, Reynolds, Boyd & Weisell, Indianapolis IN, for Phill Spires, Dan Beck, Katie Grier Easton, Clement Morris.

Burton M. Harris, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, Robert J. Shula, Catherine Mannweiler Treen (argued), Lowe, Gray, Steele & Darko, Indianapolis, IN, Richard S. Pitts, Hoffman, Drewry, Hancock & Simmons, Indianapolis, IN, for Nancy Butler.

Before BAUER, ESCHBACH, and FLAUM, Circuit Judges.

ESCHBACH, Circuit Judge.

Plaintiffs-Appellants estate of Max G. Cole and Lois Pardue, Cole's mother, ("plaintiffs") appeal from entry of summary judgment in favor of defendants. Max Cole was a pretrial detainee confined to an acute care inpatient psychiatry unit at Wishard Memorial Psychiatry Ward in Indianapolis in July, 1991. Cole committed suicide by asphyxiating himself with a plastic sanitary bag which was used to line a linen hamper in the psychiatry ward. Plaintiffs brought suit against a number of health care providers who assisted in Cole's treatment in one way or another. Defendant Jackie Fromm was a registered nurse, defendant Katie Grier Easton was a graduate nurse, and defendants Phill Spires, Dan Beck, and Clement Morris were nursing mental health clinicians (collectively, the "nurses"). Defendant Dr. Nancy Butler was a licensed psychiatrist and served as the Inpatient Director and a staff psychiatrist.

Plaintiffs claim that defendants violated Max Cole's due process rights under the Fourteenth Amendment because they were "deliberately indifferent" to the risk that Cole would commit suicide while in their care and that defendants are liable for damages under 42 U.S.C. § 1983. This action was originally instituted in state court. It was removed to federal court by defendants. Defendants moved to dismiss for lack of subject matter jurisdiction and filed motions for summary judgment. The district court granted defendants' motions for summary judgment. We affirm the district court's entry of summary judgment in favor of defendants.

I.

We review the grant of summary judgment de novo. Many of the facts in this case are undisputed. We draw all reasonable inferences from these facts in favor of the non-moving party, here the plaintiffs. Williams v. Ramos, 71 F.3d 1246, 1248 (7th Cir.1995). We review the remaining, disputed evidence in the light most favorable to plaintiffs and affirm only if no genuine issue of material fact exists. Fed.R.Civ.P. 56. With the appropriate standard of review in mind, we discuss the relevant facts.

Max Cole was transferred to Wishard because he was "running face first into walls" at the Marion County Jail and had been in a fight with another inmate. Upon his arrival at Wishard Memorial Hospital (the "Hospital"), Cole was treated for abrasions to his face and forehead. Cole was agitated, out of control, and attempted to leave the emergency room. Cole, therefore, was placed in restraints. Dr. Verkota Rao, a physician specializing in psychiatry, evaluated Cole and determined that he was experiencing symptoms of a drug-induced psychosis. Rao ordered Cole admitted to the Hospital in the BU2 unit, a small and secured unit reserved for unstable patients with acute psychiatric problems. Rao prescribed an antipsychotic drug for Cole and placed Cole on potential assault, suicide, and elopement precautions at the time of his admission.

Dr. Butler, a board certified psychiatrist and the Hospital's Medical Director of In-Patient Psychiatry, was Cole's attending physician. On July 2, the day after Rao's evaluation and Cole's admittance to the Hospital, Dr. Butler reviewed Cole's medical chart and conducted an independent mental status examination. Cole was depressed and reported having hallucinations telling him to commit suicide. Dr. Butler committed Cole to the BU2 unit. Dr. Butler classified Cole as "potentially suicidal," the lower of the two levels of suicide precautions. Dr. Butler did not believe that Cole was a "high risk" patient even though Cole reported to Dr. Butler that he heard voices telling him to commit suicide, because Cole did not express a present intent to commit suicide. In addition, Cole spoke logically and coherently, Dr. Butler felt that his hallucinations were directed mostly toward hurting others, and Cole disavowed a desire to act on his hallucinations. Dr. Butler concluded that Cole's behavior was more likely caused by drug-induced psychosis than by a personality disorder.

The Hospital has two levels of precautions for patients with possible suicidal tendencies. These levels are labelled "potential suicide precautions" and "high risk suicide precautions." The Hospital requires that a doctor make the decision to institute or to discontinue either of these precautions. The purpose of the "potential suicide precautions" is to "provide ongoing assessment and intervention of patients who exhibit or verbalize suicidal ideations." The policy requires "close observation" and regular, but not constant, monitoring of the patient by the caregiver. Patients subject to "potential suicide precautions" generally move freely about the BU2 unit and they have access to the restrooms. The policy requires Hospital staff to conduct an initial search for contraband of the areas to which the patient has access and additional searches thereafter on an "as needed" basis.

The purpose of "high risk" suicide precautions is to "provide a safe and therapeutic environment for those patients who exhibit or verbalize serious suicidal intention." Hospital staff provides continuous one-to-one monitoring of patients that are classified "high risk." In addition, the staff carefully searches the patient's room, locker, and personal belongings for contraband both upon initiation of the precautions and during every shift thereafter. None of the nursing defendants had any input into, or responsibility for, the creation or development of the Hospital's suicide risk classification policy. Dr. Butler approved the suicide risk classification policy for implementation.

Dr. Butler last examined Cole on July 3, 1991. Dr. Butler's opinion at that time was that Cole did not need a change in his precautions because he did not exhibit signs suggesting that he was contemplating suicide. On July 4, at 9:55 p.m., Cole came to the dayroom and requested a cigarette from nurse Fromm. Fromm gave Cole a cigarette and Cole told her that he felt better. About 25 minutes later, Cole was found to have committed suicide in his room. Cole was in his bed with the sheets covering himself and he had a plastic bag over his head.

The nursing defendants testified that they knew that the Hospital used plastic bags to line the soiled linen hampers in the two restrooms in the BU2 unit. The Hospital's policy that requires use of the plastic liners was designed to comply with Indiana State Board of Health regulations governing communicable disease control policies. Dr. Butler testified at her deposition that she was not aware that the plastic bags were used in the restroom, but we assume for purposes of this appeal that a reasonable jury could have found that she was aware of the plastic bags. Several of the defendants, including Dr. Butler, admitted that they were aware that plastic bags can be used for committing suicide and all of the nursing defendants admitted that they would have confiscated a plastic bag from Cole if they had witnessed him obtaining it, which they did not.

There is no evidence, however, that any defendant perceived the presence of the plastic bags in the BU2 unit to be a danger to Cole or other patients. In addition, no person who had worked in the BU2 unit, visited it, or inspected it had ever recognized that the bags posed a risk to the patients and no person had called such risk to the Hospital's attention. Finally, there was no evidence that any BU2 unit patient had ever tried to harm himself or herself with a plastic bag prior to Cole's suicide.

II.

In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court held that a prison official may be held liable under the Eighth Amendment for acting with "deliberate indifference" to inmate health or safety only if he knows that the inmate faces a "substantial risk of serious harm" and disregards that risk by failing to take reasonable measures to abate it. The Court rejected an objective test for deliberate indifference and held that liability will lie only if "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at ----, 114 S.Ct. at 1979. The Court adopted the definition of "reckless" as defined in criminal law, which "permits a finding of recklessness only when a person disregards a risk of harm of which he is aware." Id. at ---- - ----, 114 S.Ct. at 1978-79. The Court determined, however, that a plaintiff may establish subjective awareness of the risk by proof of the risk's obviousness.

Whether a prison official had the requisite knowledge of a substantial risk if [sic] a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude that a prison official knew of a substantial...