Estate of James H. Boncher v. Brown County, 01-1447

• Decision Date: 27 November 2001
• Docket Number: No. 01-1447,01-1447
• Citation: 272 F.3d 484
• Parties: (7th Cir. 2001) Estate of James H. Boncher, by Bernice Boncher, Special Administrator, et al., Plaintiffs-Appellants, v. Brown County, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 484

272 F.3d 484 (7th Cir. 2001)Estate of James H. Boncher, by Bernice Boncher, Special Administrator, et al., Plaintiffs-Appellants, v.Brown County, et al., Defendants-Appellees.

No. 01-1447

In the United States Court of Appeals For the Seventh Circuit

Argued September 5, 2001

Decided November 27, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin.No. 98 C 1217--Rudolph T. Randa, Judge.

Before Flaum, Chief Judge, and Posner and Ripple, Circuit Judges.

Posner, Circuit Judge.

James Boncher committed suicide in a cell of the Brown County(Wisconsin) jail, and this suit, brought by his estate under 42 U.S.C. sec. 1983, charges that the jail officials, and the County itself, were deliberately indifferent to the risk of Boncher's suicide and so deprived him of his life without due process of law.Bell v. Wolfish, 441 U.S. 520, 535 n. 16(1979);Salazar v. City of Chicago, 940 F.2d 233, 239-40(7th Cir.1991).The district court granted summary judgment for the defendants.

Boncher had been arrested after a domestic altercation.He had a long history of alcoholism and had attempted suicide at least three times, but this history was not known to the arresting officers or the personnel of the jail.Nor did they know that he had often told his ex-wife that he planned to kill himself in jail so that a lawsuit could be filed on behalf of his children.Interviewed during the booking process, Boncher answered "yes" when asked whether he had mental or emotional problems, and to the follow-up question whether he had ever attempted suicide answered, "Yeah, a couple days ago, but I am fine now."He said this in what the officers thought a joking manner--his entire manner since the arrest had been jovial and cooperative, and the officers thought him a "happy drunk"--and when they followed up his answer by asking him whether he had any suicidal inclinations, he laughed and said he was "fine."One officer said, "It seemed like he was joking around and that's the impression that we got."So they put him in a regular cell rather than the jail's suicide-watch cell.He died within 45 minutes of being placed in the cell by hanging himself with a bedsheet.

The intake officers who decided that Boncher was not a suicide risk are not defendants.The claim is that the people running the jail, including the county sheriff, who is acknowledged to be Brown County for purposes of this case because he had the final authority in the county's governance structure for managing the jail, McMillian v. Monroe County, 520 U.S. 781, 784-85(1997);Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84(1986)(plurality opinion), were deliberately indifferent to the risk of suicide.As we noted recently, jail suicides are frequent relative to suicides of free people or even of prison (as distinct from jail) inmates.And the risk is concentrated in the early days and even hours of being placed in jail, before the inmate has had a chance to adjust to his dismal new conditions.Jutzi-Johnson v. United States, 263 F.3d 753, 757(7th Cir.2001).Jail managers who decided to take no precautions against the possibility of inmate suicide--to have no policy, for example no suicide-watch option--would be guilty of deliberate indifference in the relevant sense, Manarite v. City of Springfield, 957 F.2d 953, 957(1st Cir.1992);Greason v. Kemp, 891 F.2d 829, 839(11th Cir.1990);they would be ignoring a known and serious risk of death of persons under their control for whose safety they are responsible.

The risk is claimed to have been particularly acute here because there had been five suicides in the Brown County jail in the five years preceding Boncher's suicide.According to the plaintiffs' expert, Lindsay Hayes, a criminologist who specializes in the study of jail suicide, this number of suicides was unusually high.He is a reputable criminologist, but in this case, as in two others we've discovered (Thacker v. Franklin County, No. 94APE01- 01, 1994 WL 283672, at *4(Ohio App.1994)("Hayes' affidavit generally lacks specificity and fails to indicate the facts underlying his conclusions"), and Boyd v. Harper, 702 F. Supp. 578, 582(E.D. Va.1988)(conclusion didn't support proposition for which it was offered)), his evidence was useless and should have been excluded under the Daubert standard.Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592- 95(1993);Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141(1999);Elliott v. CFTC, 202 F.3d 926, 934(7th Cir.2000);cf.Mid-State Fertilizer Co. v. Exchange National Bank of Chicago, 877 F.2d 1333, 1339(7th Cir.1989).It is not the number of suicides that is a meaningful index of suicide risk and therefore of governmental responsibility, Frake v. City of Chicago, 210 F.3d 779, 782(7th Cir.2000);Manarite v. City of Springfield, supra, 957 F.2d at 958, but the suicide rate, Horn by Parks v. Madison County Fiscal Court, 22 F.3d 653, 661(6th Cir.1994); and it is not even the rate by itself, but rather the rate relative to the "background" suicide rate in the relevant free population (the population of the area from which the jail draws its inmates) and to the rate in other jails.No evidence was presented that would have enabled an estimate of any of these rates--not even the population of Brown County was put into the record.Hayes admitted at his deposition that he had neither conducted nor consulted any studies that would have enabled him to compare the Brown County jail suicide rate with that of the free population in the county or that of other jails.

There was still another oversight-- failure to allow for normal variance.It would not be sound to condemn a jail administrator if the rate of suicide in his population was within one or two standard deviations of the rate elsewhere, for that little variance might well be due to chance, or at least to factors over which he had not control.Every statistical distribution has an upper tail, and there is no constitutional principle that whoever is unlucky enough to manage the prisons in the upper tail of the distribution of suicides must pay damages.

The deficiencies of Hayes's deposition compel us to treat Brown County's jail as one of average suicide risk and ask whether there is evidence from which it can be inferred that the jail management was deliberately indifferent to that risk.The plaintiffs emphasize the lack of training of the intake officers and the inadequacy of the checklist that they used in interviewing newly booked-in prisoners to determine whether they are suicide risks.The officers had only the most general training in recognizing a suicide risk, and this made them heavily dependent on the form.The form is poor, because while it contains a box to check if the prisoner has...