Rosario v. Brawn

• Decision Date: 01 March 2012
• Docket Number: No. 11–2072.,11–2072.
• Citation: 670 F.3d 816
• Parties: Cornel J. ROSARIO, as Special Administrator of the Estate of Marc J. Rosario, deceased, Plaintiff–Appellant, v. Daniel R. BRAWN, Jeffrey A. Schwitz, and Adam C. Winkler, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

670 F.3d 816

Cornel J. ROSARIO, as Special Administrator of the Estate of Marc J. Rosario, deceased, Plaintiff–Appellant,

v.Daniel R. BRAWN, Jeffrey A. Schwitz, and Adam C. Winkler, Defendants–Appellees.

No. 11–2072.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 31, 2011.Decided March 1, 2012.

Timothy S. Trecek (argued), Attorney, Habush, Habush & Rottier S.C., Milwaukee, WI, for Plaintiff–Appellant.

Charles H. Bohl (argued), Andrew A. Jones, Attorneys, Whyte Hirschboeck Dudek S.C., Milwaukee, WI, for Defendants–Appellees.

Before KANNE and WILLIAMS, Circuit Judges, and DEGUILIO, District Judge.^*KANNE, Circuit Judge.

In May 2008, Washington County Sheriff deputies responded to a call indicating 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 discovered 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 defendants. We affirm.

I. Background

Although tragic, the facts here are generally undisputed. Just after midnight on May 8, 2008, Cornel Rosario called the Washington County, Wisconsin Sheriff's Department 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 informed Brawn that Marc had access to knives. At approximately 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 “fireflying 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 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 involuntarily detained according to § 51.15. Deputies Brawn and Anderson transported Marc to St. Joseph's Hospital for a preliminary medical screening. Deputy Adam Winkler and Wiedmeyer met Deputies Brawn and Anderson 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 transport. 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 performed 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 BandAid. The deputies never actually opened the foil packet even though one side of the package contained 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 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 possession 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 Department formally disciplined Deputies Brawn and Winkler in part for failing to observe Marc regain possession 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 patient. 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 deputies were unable to observe Marc's hands during transport, 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 considered 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 deputies' arrival, they both got out of the vehicle and attempted 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 ultimately 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 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...