Estate of Clark v. Walker, s. 16-3560 & 16-3644

Citation865 F.3d 544
Decision Date26 July 2017
Docket NumberNos. 16-3560 & 16-3644,s. 16-3560 & 16-3644
Parties ESTATE OF Ryan L. CLARK, Plaintiff-Appellee, v. Bruce WALKER and Tina Kuehn, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Jeff Scott Olson, Attorney, Madison, WI, for PlaintiffAppellee.

Charles H. Bohl, Attorney, Husch Blackwell LLP, W. Patrick Sullivan, Steven Elmer, M. Susan Maloney, Attorneys, Siesennop & Sullivan, Milwaukee, WI, for DefendantsAppellants.

Before Flaum, Kanne, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Ryan Clark committed suicide five days after entering the custody of the Green Lake County Jail in Wisconsin. The officers on duty at the time of his death did not know that Clark had a high risk of committing suicide. When he entered the jail, however, he was assessed as having a maximum risk of suicide. The intake staff who were aware of that risk—Officer Bruce Walker and Nurse Tina Kuehn—had not initiated the jail's suicide prevention protocol. Clark's estate brought this suit under 42 U.S.C. § 1983 alleging that Walker and Kuehn violated Clark's Eighth Amendment rights by acting with deliberate indifference toward his serious risk of suicide.

Walker and Kuehn moved for summary judgment. They argued there was insufficient evidence to allow a jury to find deliberate indifference, and they invoked qualified immunity. In a detailed order, the district court denied their motions. See Estate of Clark v. County of Green Lake , No. 14-C-1402, 2016 WL 4769365 (E.D. Wis. Sept. 12, 2016). The court found numerous issues of material fact regarding Clark's suicide risk, the defendants' knowledge of that risk, and who was responsible for initiating the suicide protocol (Walker or Kuehn). The court also rejected defendants' qualified immunity arguments. As a preliminary matter, the court determined that Kuehn was unable to invoke qualified immunity because she was a private contractor, not a government employee. On the merits, the court ruled that both defendants were not shielded by qualified immunity because it was clearly established in the Seventh Circuit that inmates have the right to be free from deliberate indifference to a known risk of suicide. Both defendants appealed.

Because this is an appeal from a denial of summary judgment, our jurisdiction is quite limited. We have jurisdiction to review only the denial of qualified immunity and only to the extent the denial turned on questions of law. This narrows our consideration to two issues: whether Nurse Kuehn was entitled to qualified immunity as a private medical contractor, and whether it was clearly established that Clark had a right to be free from deliberate indifference to his serious risk of suicide. We agree with the district court on both points, so we affirm its denial of summary judgment for these two defendants.1

I. Factual and Procedural Background
A. Clark's History of Suicidal Behavior

Our review on appeal from denial of summary judgment based on qualified immunity is limited to questions of law, so we recount the facts as stated by the district court in its assessment of the summary judgment record. See Locke v. Haessig , 788 F.3d 662, 665 (7th Cir. 2015).

Ryan Clark struggled for years with alcoholism and depression. In 2009 he was released from Wisconsin state prison after serving time for his fifth offense of operating a vehicle under the influence of alcohol. His release was subject to extended supervision. Over the next two years he was admitted to the Green Lake County Jail approximately eight times. Each time his extended-supervision officer placed him on a "hold" due to alleged violations of his supervision rules, and each time he was intoxicated.

Jail records show that Clark received regular medical treatment for depression while in custody. He was frequently given medication for depression, such as sertraline

and fluoxetine, and his jail record stated that he experienced "anxiety attacks" when he did not receive his medication. The jail records also documented Clark's serious risk of suicide. This included documentation of instances of self-harm, including a suicide attempt in 2011. At times in the past, the jail had put Clark on "Special Watch Observation," where he was observed every fifteen minutes to prevent suicide.

B. Intake, Confinement, and Suicide

On May 23, 2012, Clark was admitted once more to the Green Lake County Jail because he violated supervision rules by drinking alcohol. His breath test showed a blood alcohol level of 0.27, more than three times the legal limit for driving. Defendant Walker performed the intake process. Following standard practice, Walker administered the Spillman Initial Inmate Assessment, which is a software program that includes a suicide risk assessment. The program provides questions for the intake officer to ask the inmate, and it uses the inmate's responses to estimate his suicide risk.

Based on Clark's responses, the Spillman Assessment calculated that he was at a "maximum" suicide risk. According to the jail administrator, the Spillman Assessment is not dispositive, and officers have discretion to initiate the suicide protocol based on other factors, such as when an inmate expressly says that he is contemplating suicide. Walker testified that he thought the Spillman Assessment automatically produced a maximum suicide rating for all inmates intoxicated at the time of the test. Officer testimony indicated that officers made discretionary determinations about suicide risk without psychological training on suicide prevention or an under-standing of how the Spillman Assessment functioned.

After completing the suicide assessment reflecting maximum risk, Walker placed Clark in the holding cell to wait for Nurse Kuehn's routine medical intake. He left the Spillman Assessment for her review. Walker did not, however, implement the jail's suicide prevention protocol, which requires special precautions for inmates at risk of committing suicide. For instance, officers are supposed to check jail records to determine if the inmate has a prior history of suicidal behavior. Walker did not conduct this check, which would have shown a prior suicide attempt while in jail. Nor did Walker place Clark in a suicide prevention cell, initiate monitoring of Clark, or refer him to a mental health provider. The district court also found a factual dispute between Walker and Nurse Kuehn over who was responsible for initiating the suicide protocol.

Nurse Kuehn performed Clark's medical intake. Kuehn worked for Correctional Healthcare Companies, a company contracted by the jail to provide medical services. During the intake, Kuehn documented that Clark was taking antidepressant medication but could not remember the name of his medicine while he was intoxicated. She never followed up to learn Clark's medication. She placed Clark's Spillman Assessment in his medical chart, but she also did not take steps pursuant to the jail policy to mitigate Clark's risk of suicide. She did not refer Clark to a mental health counselor, which she had done for Clark in the past. Nor did she inform jail staff of Clark's suicide risk. Instead of assigning Clark to the cell designed for suicide prevention, she assigned him to a cell for alcohol detoxification

. Inmates in detoxification cells are alone 24 hours a day. Kuehn later testified that she was aware that alcohol detoxification increases the risk of suicide. She also testified that she knew Clark would experience extreme isolation in the detoxification cell. Kuehn followed up with Clark several times after his initial intake.

Four nights later, Clark committed suicide, on May 28 shortly after midnight. The officers on duty at the time were unaware that Clark posed a suicide risk. He was not in the suicide prevention cell, and neither Walker nor Kuehn had notified them of any risk. The officer monitoring the security cameras did not observe Clark's suicide. The video recording shows that Clark's preparation and suicide took approximately thirty minutes. Clark fashioned a noose with pieces of fabric and tied it to his bedroll. He used his bedroll as a counterweight by placing it over a little dividing wall in his cell, and then hanged himself by letting his body sag on the other side of the wall. An officer discovered Clark's body approximately one hour later, but it was too late to revive him.

C. Procedural History

In November 2014 Clark's estate brought suit under 42 U.S.C. § 1983 alleging deliberate indifference to Clark's risk of suicide. The estate named as defendants Green Lake County and Officers Walker, Schoenscheck, and Pflum (the "County Defendants"). The estate also named Kuehn and Correctional Healthcare Companies, Inc. (the "Medical Defendants"). The County Defendants moved to dismiss or alternatively for summary judgment. The Medical Defendants also moved for summary judgment. The district court denied the County Defendant's motion to dismiss and then granted summary judgment on the Eighth Amendment claim for all defendants other than Walker and Kuehn.2

The court found that genuine issues of material fact precluded summary judgment for Walker and Kuehn. As an initial matter, Walker and Kuehn both disputed who was responsible for initiating the suicide protocol. The court also concluded that the estate offered sufficient evidence to allow a jury to find that Walker and Kuehn acted with deliberate indifference to Clark's risk. Finally, the court rejected defendants' qualified immunity arguments. After reviewing our precedent, the court held that the immunity defense should not extend to Kuehn as a private contractor. Nonetheless, the court went on to consider the merits of the qualified immunity defense for both defendants and determined that the defense failed because it was clearly established in 2012 in the Seventh Circuit that deliberate indifference to an inmate's serious risk of suicide violates the ...

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