Estate S. Novak v. County of Wood

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3270

Estate of Shannon Novack, deceased,
by its personal representative, Susan Turbin,
and Susan Turbin,

Plaintiffs-Appellants,

v.

County of Wood, a municipal corporation,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98-C-0850-S--John C. Shabaz, Chief Judge.

Argued March 27, 2000--Decided August 7, 2000

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

Flaum, Chief Judge. The estate of Shannon Novack
and Susan Turbin brought suit against the County
of Wood (the "County") under 42 U.S.C. sec. 1983,
alleging that the County deprived Novack of his
Eighth Amendment rights when it failed to prevent
his suicide during his incarceration in the Wood
County Jail ("WCJ"). The district court granted
summary judgment in favor of the defendant. For
the reasons stated herein, we affirm.

I. BACKGROUND

On December 22, 1997, Shannon Novack was
diagnosed by Dr. Edward Root as a paranoid
schizophrenic who tended to be impulsive and who
was a possible suicide risk. Dr. Root prescribed
medication to address Novack’s condition. On
December 29, 1997, while he was with his mother
Susan Turbin and grandmother Gladys Jaehn, Novack
became agitated and threatened to kill himself.
Turbin convinced Novack to voluntarily commit
himself at the Norwood Mental Health Center
("Norwood"). However, when Turbin and Novack
arrived at Norwood, Novack changed his mind about
being committed and left the facility.
 A short time later, Novack was arrested by an
officer from the Marshfield Police Department on
outstanding warrants and taken to the Marshfield
police station. Shortly thereafter, Wood County
Deputy Sheriff Rick Kirst transported Novack from
the police station to the Wood County Jail.
Deputy Kirst talked with Turbin and Kenneth
Wahlstrand, an employee at Norwood, regarding
Novack’s condition. Deputy Kirst told Turbin and
Wahlstrand that he would notify WCJ staff of
Novack’s potential for suicide and that jail
personnel would watch him closely. When Deputy
Kirst met with Deputy Raymond Starks to transfer
Novack to WCJ, he informed Starks that Novack was
a suicide risk and should be watched closely.
Neither Kirst nor Starks thought that Novack
behaved in an unusual manner during their contact
with him.

Novack was booked into WCJ by Officer Denise
Ellis, who conducted a medical screening of
Novack as part of standard WCJ procedure. The
medical screening is intended to identify
physical or mental problems that an inmate may
possess. In his responses to the medical
screening questions, Novack indicated that he had
seen mental health professionals in the past,
including a visit to Dr. Root earlier in the
week, but stated that he was not considering
suicide and had never attempted suicide. Deputy
Starks then informed Officer Ellis that Novack
was a suicide risk and that WCJ staff should
watch him accordingly. Deputy Starks also told
Officer Ellis that Novack had been at Norwood
earlier in the day but had not been admitted.
Officer Ellis concluded that Novack had a
possible mental illness based on the information
provided by Deputy Starks and the medical
screening.

Officer Ellis decided to place Novack in an
observation cell which is normally used for
inmates on suicide watch. The WCJ officer on duty
the following day was not informed of the reasons
for Novack’s placement in the observation cell.
Novack remained in the observation cell until
about 2:00 p.m. the next day when he was taken to
court and it was determined that he would remain
in custody because of a probation violation. Upon
his return from court, Novack was placed in a
two-person cell in the general jail population.
Officer King, the supervisor on duty at the time,
does not know who made the decision to place
Novack in the general population instead of in
the observation cell or why that decision was
made.

The following day, December 31, 1997, Dr. Root
telephoned WCJ to prescribe new medication for
Novack. WCJ personnel filled the prescription and
administered the medication to Novack during the
remainder of his stay at WCJ.

During the following two weeks, Annalee Miller,
an inmate housed in the cell next to Novack’s,
heard Novack pounding on the cell walls on a
daily basis and periodically giggling
uncontrollably. Miller reported Novack’s behavior
to WCJ officers and expressed concern that Novack
might be in need of mental health care. Novack’s
cell-mate Lewis England also saw Novack regularly
pounding on the cell walls and thought he was in
need of mental health care. However, WCJ
personnel did not observe any unusual behavior by
Novack during his stay at WCJ.

At 10:00 p.m. on January 17, 1998, WCJ officers
entered Novack’s cell to give him his prescribed
medication. At 12:05 a.m. on January 18, jail
personnel returned to Novack’s cell and
discovered that Novack had hung himself using a
bed sheet. Susan Turbin, Novack’s mother, brought
suit on behalf of Novack’s estate and on her own
behalf against Wood County alleging that the
County had deprived her son of his Eighth
Amendment rights by having inadequate policies
and practices for treating mentally ill inmates
and by failing to adequately train WCJ personnel
to provide necessary mental health care to her
son that would have prevented his suicide. The
district court granted summary judgment in favor
of the County, and the plaintiffs now appeal.

II. DISCUSSION

We review the district court’s grant of summary
judgment in favor of the County de novo. See
Johnson v. University of Wisc. Eau-Claire, 70
F.3d 469, 477 (7th Cir. 1995). We look at all
evidence in the light most favorable to the
plaintiffs and draw all reasonable inferences in
their favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
Prison inmates have an Eighth Amendment right
to be confined under conditions that provide
"adequate food, clothing, shelter, and medical
care." Farmer v. Brennan, 511 U.S. 825, 832
(1994) (quoting Hudson v. Palmer, 468 U.S. 517,
526-27 (1984)). In addition, prison officials are
responsible for taking reasonable steps to
guarantee the safety of the inmates in their
charge. Id. To make out a claim for a violation
of an inmate’s Eighth Amendment right to adequate
conditions of confinement, a plaintiff must make
two showings: "First, the danger to the inmate
must be objectively serious, posing a substantial
risk of serious harm. Second, the prison official
must have a sufficiently culpable state of mind--
one of ’deliberate indifference’ to inmate health
or safety." Haley v. Gross, 86 F.3d 630, 640-41
(7th Cir. 1996); see Farmer, 511 U.S. at 834.

"Deliberate indifference," as it is used in the
Eighth Amendment context, comprehends more than
mere negligence but less than the purposeful or
knowing infliction of harm. See Farmer, 511 U.S.
at 836; Estelle v. Gamble, 429 U.S. 97, 106
(1976); Haley, 86 F.3d at 641. Deliberate
indifference requires that a prison official know
of and disregard a substantial risk of serious
harm to inmate health or safety. See Farmer, 511
U.S. at 837. The deliberate indifference standard
is a subjective one. It is not enough that there
was a danger of which a prison official
objectively should have been aware. "[T]he
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.

Shannon Novack committed suicide while
incarcerated in the Wood County Jail. The
plaintiffs argue that Novack’s suicide was the
result of WCJ policies and practices that
reflected the County’s deliberate indifference to
the medical needs of mentally ill inmates.
Suicide is a "serious harm" and prison officials
must take reasonable preventative steps when they
are aware that there is a substantial risk that
an inmate may attempt to take his own life. See
Estate of Cole v. Fromm, 94 F.3d 254, 259 (7th
Cir. 1996) (holding that defendant prison
officials "may be liable for [an inmate’s]
suicide if they were deliberately indifferent to
a substantial suicide risk"); see also Collignon
v. Milwaukee County, 163 F.3d 982, 990 (7th Cir.
1998); Payne v. Churchich, 161 F.3d 1030, 1041
(7th Cir. 1998). Mere knowledge that an inmate is
behaving violently or "acting in a ’freaky’
manner" is not sufficient to impute awareness of
a substantial risk of suicide. State Bank of St.
Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.
1983); see also Mathis v. Fairman, 120 F.3d 88,
91 (7th Cir. 1997). In order to be liable under
the Eighth Amendment, a prison official must be
cognizant of the significant likelihood that an
inmate may imminently seek to take his own life
and must fail to take reasonable steps to prevent
the inmate from performing this act. See
Collignon, 163 F.3d at 990 (holding that even
placing an inmate on suicide watch may not
demonstrate a subjective awareness of a
substantial risk of imminent suicide); Camic, 712
F.3d at 1146 (holding that officers took
reasonable measures to prevent an inmate’s
suicide where they were unaware that the inmate
was a high suicide risk but removed the
prisoner’s belt and shoe laces in order to guard
against suicide attempts).
 In this case, when Shannon Novack was first
brought to the WCJ, jail officials were informed
that he had been at a mental health facility
earlier in the day and that he was a potential
risk for suicide. Novack was then questioned
concerning his mental health, and he responded
that he was not contemplating suicide and had
never attempted suicide. In addition, neither the
sheriff’s deputies who transported Novack to WCJ
nor the jail personnel who initially admitted him
were aware of any suicidal behavior exhibited by
Novack. Nevertheless, Novack was placed in an
observation cell until he was taken to court the
next day. Novack did not exhibit any suicidal
behavior during this time. When Novack’s
psychiatrist Dr. Root contacted the jail the next
day, he prescribed medication for Novack but did
not inform WCJ that Novack was a suicide risk.
Other inmates apparently informed jail personnel
that Novack was behaving strangely by pounding on
the walls of his cell and giggling. However,
strange behavior alone, without indications that
that behavior has a substantial likelihood of
taking a suicidal turn, is not sufficient to
impute subjective knowledge of a high suicide
risk to jail personnel. See Mathis, 120 F.3d at
91; Camic, 712 F.2d at 1146. Novack did not take
his life until more than two weeks after he was
incarcerated at WCJ. While he may have exhibited
some bizarre behavior during that time, he
evidenced no behavior that put jail officials on
notice that there was a significant likelihood
that he would attempt to harm himself. We cannot
conclude on this record that WCJ personnel were
subjectively aware that Novack posed a high risk
of suicide and were deliberately indifferent to
that risk.

The plaintiffs argue, however, that WCJ
personnel would have been aware that Novack posed
a substantial suicide risk had they been
adequately trained to handle mentally ill
inmates. Ordinarily, a prison official does not
violate the Eighth Amendment when he should have
been aware of a risk that harm would befall an
inmate but was not actually subjectively aware of
that risk. See Farmer, 511 U.S. at 838 ("[A]n
official’s failure to alleviate a significant
risk that he should have perceived but did not,
while no cause for commendation, cannot under our
cases be condemned as the infliction of
punishment."). However, a municipality, rather
than an individual, may violate the Eighth
Amendment where a risk of serious harm was so
patently obvious that the municipality must have
been aware of risk of harm and, by failing to act
to rectify it, sanctioned the harmful conduct.
See Jackson v. Marion County, 66 F.3d 151, 152
(7th Cir. 1995); Farmer, 511 U.S. at 841 (noting
that allegations that individual officers
violated Eighth Amendment rights are examined
using a subjective awareness standard while
allegations of municipal misconduct receive an
objective analysis).

A municipality may be liable for harm to
persons incarcerated under its authority "if it
maintains a policy that sanctions the maintenance
of prison conditions that infringe upon the
constitutional rights of the prisoners." Payne,
161 F.3d at 1043. This liability is not founded
on a theory of vicarious liability or respondeat
superior that holds a municipality responsible
for the misdeeds of its employees. See City of
Canton v. Harris, 489 U.S. 378, 385 (1989);
Pembaur v. City of Cincinnati, 475 U.S. 469, 479
(1986). Rather, a municipal policy or practice
must be the "direct cause" or "moving force"
behind the constitutional violation. See City of
Oklahoma v. Tuttle, 471 U.S. 808, 820 (1985);
City of Canton, 489 U.S. at 385; Monell v.
Department of Soc. Servs., 436 U.S. 658, 691
(1978). In other words, "it is when execution of
a government’s policy or custom . . . inflicts
the injury that the government as an entity is
responsible under sec. 1983." Monell, 436 U.S. at
694. That a constitutional injury was caused by
a municipality may be shown directly by
demonstrating that the policy itself is
unconstitutional. See id. at 694-95 (holding that
a municipality may be liable under sec. 1983 for
a policy that requires pregnant women to take
unpaid leave before leave was required for
medical reasons because the policy itself is
unconstitutional). Municipal liability may also
be demonstrated indirectly "by showing a series
of bad acts and inviting the court to infer from
them that the policymaking level of government
was bound to have noticed what was going on and
by failing to do anything must have encouraged or
at least condoned, thus in either event adopting,
the misconduct of subordinate officers." Jackson,
66 F.3d at 152.

The plaintiffs argue that the policies in place
to train WCJ personnel on the proper treatment of
mentally ill inmates were so inadequate that the
County was on notice at the time Shannon Novack
was incarcerated that there was a substantial
risk that he would be deprived of necessary
medical care in violation of his Eighth Amendment
rights. The plaintiffs allege that because of
inadequate WCJ policies and practices concerning
the treatment of mentally ill inmates, WCJ
officers were unaware that Novack posed a
significant suicide risk and failed to take
reasonable steps to prevent him from taking his
own life.

As noted above, the plaintiffs may prove their
allegation that the County was deliberately
indifferent to the constitutional violations WCJ
personnel were inflicting on mentally ill inmates
by presenting either a series of unconstitutional
acts from which it may be inferred that the
County knew WCJ officers were violating the
constitutional rights of WCJ inmates and did
nothing or by direct evidence that the WCJ
policies, practices or training methods were
unconstitutional. Plaintiffs have not shown that
there was a pattern of suicide at WCJ from which
we can draw the inference that the County was
aware that WCJ policies for treating mentally ill
inmates at risk for suicide were inadequate and
chose to do nothing in the face of this
knowledge. Even if we were to find that Novack’s
suicide itself was a result of unconstitutional
conduct, a single instance of allegedly
unconstitutional conduct does not demonstrate a
municipality’s deliberate indifference to the
constitutional rights of its inhabitants./1 See
Tuttle, 471 U.S. at 823-24 ("Proof of a single
incident of unconstitutional activity is not
sufficient to impose liability under Monell,
unless proof of the incident includes proof that
it was caused by an existing, unconstitutional
municipal policy."); Jackson, 66 F.3d at 152. In
the absence of a series of constitutional
violations from which deliberate indifference can
be inferred, the plaintiffs must show that the
policy itself is unconstitutional.

As evidence that WCJ policies themselves were
constitutionally inadequate the plaintiffs first
point to several instances where the policies and
practice of WCJ differ from the requirements of
state statute./2 While state law violations
should be of concern to Wood County and the State
of Wisconsin, they do not form the basis for
imposing sec. 1983 liability. See White v. Olig,
56 F.3d 817, 820 (7th Cir. 1995); Burgess v.
Ryan, 996 F.2d 180, 184 (7th Cir. 1993); Martin
v. Tyson, 845 F.2d 1451, 1455 (7th Cir. 1988). It
is only when municipal policy fails to meet
federal constitutional or statutory standards
that sec. 1983 liability may be imposed. See
Tuttle, 471 U.S. at 816. Section 1983 provides no
remedy for failure to meet state law
requirements.

Next, the plaintiffs present expert testimony
from a psychiatrist who points out numerous flaws
in the WCJ policies for treating mentally ill
inmates and states the opinion that these
deficiencies contributed to Novack’s death. While
the expert’s opinion may demonstrate that WCJ
personnel could have done more to become aware of
the danger that Novack posed to himself based on
the strange behavior that he was exhibiting, that
opinion does not indicate that WCJ policies
caused jail personnel to be deliberately
indifferent in the face of a patently obvious
suicide risk. In other words, the evidence
presented by the plaintiffs has not shown that
but for WCJ policies, WCJ personnel would have
been aware that Novack posed a high risk of
suicide and would have taken reasonable steps to
prevent him from taking his own life. We have
found that WCJ officers in this case were not
deliberately indifferent to the suicide risk
posed by Novack, and we cannot conclude that the
officers would have been aware of that risk had
it not been for the County policies that caused
their deliberate indifference./3

III. CONCLUSION

For the foregoing reasons, the district court’s
grant of summary judgment to the defendant is
Affirmed.

/1 While the plaintiffs make reference in their
Statement of Facts to another suicide that
occurred at WCJ one month prior to Novack’s
incarceration, they do not argue that this
incident put WCJ on notice that its policies and
practices posed a substantial risk to the safety
of WCJ inmates.

/2 The plaintiffs assert that WCJ policy and
practice did not comport with state statutes
requiring more frequent observation of mentally
ill inmates than inmates in the general
population, documentation of observation of
inmates, maintenance of procedures for addressing
non-emergency medical situations, and segregation
of mentally ill inmates from non-mentally ill
inmates.

/3 The dissent contends that WCJ personnel’s "bad
acts" of "routinely" ignoring several WCJ
policies could create an inference that the
County was deliberately indifferent to Novack’s
Eighth Amendment rights. However, the "bad acts"
from which municipal liability may be indirectly
inferred must be a "pattern of conduct or a
series of acts violative of constitutional
rights." Powe v. City of Chicago, 664 F.2d 639,
651 (7th Cir. 1981). The plaintiffs have not
presented any evidence that WCJ personnel
regularly ignored established WCJ policies,
rather than simply failing to follow certain
policies in the singular instance of their
treatment of Novack. Furthermore, the failure to
follow a policy calling for documenting an
inmate’s refusal to eat or for frequently
observing an inmate who is on suicide watch is
not itself an infliction of cruel or unusual
punishment that violates the Eighth Amendment.
See, e.g., Estate of Cole, 94 F.3d at 261
(holding that failure to observe an inmate who
was on suicide watch more frequently than once
each hour did not violate the Eighth Amendment);
Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th
Cir. 1996) ("In order to violate the Eighth
Amendment, the condition of confinement must be
a denial of ’basic human needs’ or ’the minimal
civilized measure of life’s necessities.’")
(quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). Because the plaintiffs have not
presented evidence of a "series" of
constitutional violations, or of any
constitutional violations at all, there is no
"bad acts" evidence from which County liability
may be inferred under Monnel.

In the absence of indirect evidence, the
plaintiffs are required to show that WCJ policies
themselves are unconstitutional. However, WCJ
policies call for jail personnel to evaluate
inmates for suicide risk and take reasonable
measures to protect inmates when they become
aware that a risk is present. The plaintiffs do
not claim at this stage that WCJ personnel were
inadequately trained to carry out these policies.
While we agree with the dissent that there are
additional policies that could improve WCJ’s
treatment of its mentally ill inmates, the
plaintiffs’ proffered evidence does not
demonstrate that WCJ’s existing policies fall
below the constitutional standards mandated by
the Eighth Amendment. See Anderson v. Romero, 72
F.3d 518, 524 (7th Cir. 1995) ("The Eighth
Amendment forbids cruel and unusual punishments;
it does not require the most intelligent,
progressive, humane, or efficacious prison
administration.").

Williams, Circuit Judge, dissenting. I generally
agree with my colleagues’ legal analysis but find
that genuine issues of material fact preclude
summary judgment. I agree with the majority’s
determination that the Eighth Amendment is
implicated only when prison officials are
cognizant of a significant likelihood that an
inmate may imminently seek to take his own life.
Thus, we have not found prison officials liable
for prison suicides without an allegation of
suicidal tendencies, evidence of past suicide
attempts, or warnings of suicidal conditions. See
Payne v. Churchich, 161 F.3d 1030, 1042 (7th Cir.
1998), cert. denied, 527 U.S. 1004 (1999).
Moreover, behaving in a strange or bizarre manner
is not enough to put prison officials on notice
that an inmate is a substantial suicide risk. See
Mathis v. Fairman, 120 F.3d 88 (7th Cir. 1997);
State Bank of St. Charles v. Camic, 712 F.2d 1140
(7th Cir. 1983).

In Novack’s case, however, genuine issues of
material fact exist for a reasonable jury to find
that prison officials were aware of a substantial
risk that he may imminently commit suicide. For
example, when Novack was booked into the Wood
County Jail, Deputy Raymond Starks of the Wood
County Sheriff’s Department informed Officer
Denise Ellis that Novack was a suicide risk and
that the jail staff should watch him accordingly.
Officer Ellis also knew that Novack had been at
Norwood Mental Health Center earlier that day.
Furthermore, she wrote "watch" on Novack’s
medical screening inventory. She was aware that
Novack had been diagnosed in the past with a
mental illness, and she concluded that Novack had
a possible mental illness.

Novack was then placed in an observation cell
that is normally used for inmates on suicide
watch./1 However, there is no record that the
jail officials paid close attention to Novack
while he was in the observation cell.
Furthermore, without consulting any mental health
experts or insuring that he would be subject to
suicide watch scrutiny, the officials
inexplicably transferred him to the general jail
population.

While in jail, Novack took psychotropic medicine
prescribed by his psychiatrist. There is no
record of the jail officials insuring that he
took his medicine when they handed it to him.
Furthermore, his jailers did not make any record
of closely observing Novack to watch his reaction
to this prescription medicine. During his time in
general population, his mental health did not
improve. He pounded on his cell walls almost
every day and was subject to regular uncontrolled
fits of laughing and giggling. He did not eat all
of his meals, he lost weight, and his appearance
was unkept. However, jail staff never conducted
a full medical evaluation of Novack.

The facts at issue here are similar to those in
Hall v. Ryan, 957 F.2d 402 (7th Cir. 1992), where
we ruled that a jury, and not the court, must
determine whether jail officials were aware of a
substantial suicide risk. In Hall, we affirmed
the district court’s denial of defendants’
summary judgment motion. We agreed that the
detainee’s estate raised genuine issues of
material fact whether defendants were aware that
the detainee/2 was a substantial suicide risk.
See id. at 405. After his arrest, the detainee
became excited and belligerent. He urinated on
the floor and swore at the police officers. See
id. at 403. Moreover, he had threatened to commit
suicide when he was arrested by the same police
department nine months prior to the incident in
question. See id. at 403-04. The detainee’s prior
arrest report states that he has attempted
suicide several times. See id. at 404. Based on
the detainee’s behavior on the day of his arrest
and his prior encounters with this police
department, we found that the plaintiff had
raised genuine issues of material fact whether
defendants knew that the detainee was a serious
suicide risk. See id. at 405./3

As in Hall, we have more than Novack’s strange
and bizarre behavior. We also have evidence that
jail officials knew that Novack was a suicide
risk and had a possible mental illness. Finally,
the jail staff failed to conduct a full medical
evaluation and failed to subject Novack to any
suicide watch scrutiny. Consequently, from this
evidence, a reasonable factfinder could conclude
that there existed a substantial risk that Novack
would imminently commit suicide and that jail
officials knew of this risk, yet failed to act.

The majority opinion seems to discount this
evidence and instead focuses on the fact that
Novack told the intake officer that he was not
contemplating suicide. Moreover, the majority
opinion focuses on the conversation between Dr.
Root, Novack’s psychiatrist, and jail officials,
where Root did not mention that Novack had any
suicidal tendencies. These facts do not, however,
allow us to draw a legal conclusion that Wood
County Jail officials were not deliberately
indifferent to a substantial risk that Novack
would harm himself.

The County of Wood is the only remaining
defendant. Local government liability cannot be
based upon the theory of respondeat superior. As
the majority opinion indicates, however,
municipal liability can be demonstrated
indirectly if a court can infer from a series of
bad acts that policymakers were condoning
subordinates’ misconduct. See Jackson v. Marion
County, 66 F.3d 151, 152 (7th Cir. 1995).

A reasonable jury could find that Wood County’s
customs and lack of procedures caused the
deliberate indifference to Novack’s Eighth
Amendment rights. First, the jury could find that
there was a custom of not following certain
procedures as it relates to mentally ill inmates
and that this custom caused Novack’s suicide. For
example, evidence suggests that the following
jail policies were routinely ignored: (1)
referral of mentally ill inmates to medical
staff; (2) segregation of mentally ill from
non-mentally ill inmates; (3) suicide watch for
at-risk inmates where they are checked and a log
completed every 15 minutes; (4) medicine consumed
in front of officers; and (5) officers
determining and documenting the reason that
inmates decline food. By ignoring these policies,
a reasonable jury could find that the jail showed
deliberate indifference toward inmates who, like
Novack, already had a demonstrated risk of
suicide. Consequently, a jury could properly
infer from these "bad acts" that Wood County Jail
condoned this conduct./4

Second, a reasonable jury could find that the
lack of certain jail procedures demonstrates
deliberate indifference toward suicide risk
inmates. Arden Geisler, the administrator of the
jail since 1978, is responsible for policies and
procedures at the Wood County Jail. Wisconsin
state law makes the sheriff or other jailkeeper
responsible for enacting a policy and procedure
manual for the operation of the jail. See Wis.
Stat. sec. 302.365(1)(a). The following
procedures were not in place at Wood County Jail:
(1) no health appraisal is conducted by a health
care professional, even when initial screening
warrants it; (2) a supervisor may remove an
inmate from a suicide watch without consulting
with a health professional; (3) no mental health
professional examines an inmate after he is put
on suicide watch; and (4) suicide risk
assessments are not performed, even when initial
screening warrants it. By failing to implement
procedures to involve health care professionals
in the care taking of mentally ill inmates who
are specific suicide risks, a reasonable jury
could find that the Wood County Jail showed
deliberate indifference toward inmates who are
known suicide risks.

While the district court should review the
whole record, it must draw all reasonable
inferences in favor of the nonmovant and can
neither weigh the evidence nor make any
credibility determinations. Cf. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097,
2110 (2000)./5 "Credibility determinations, the
weighing of the evidence, and drawing of
legitimate inferences from the facts are jury
functions, not those of a judge." Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986).
Consequently, we must give credence to the
numerous facts that support plaintiffs’
allegations that Wood County Jail officials were
aware of a substantial risk that Novack may
imminently commit suicide. The weighing of this
evidence is the sole province of the jury--not
the district court, or this court. The district
court’s grant of summary judgment in favor of
Wood County Jail should be reversed. Accordingly,
I respectfully dissent.

/1 The majority cites Collignon v. Milwaukee County,
163 F.3d 982, 990 (7th Cir. 1998), for the
proposition that placing an inmate on suicide
watch may not demonstrate a subjective awareness
of a substantial risk of imminent suicide.
Collignon, however, concerns an inmate who killed
himself after being released to the custody of
his parents. The issue in Collignon was whether
officials had a constitutional obligation to
devise a treatment plan for the inmate, not
whether they could have prevented his suicide
while he was in custody.

/2 Pretrial detainees, who are protected under the
Fourteenth Amendment’s Due Process Clause for
maltreatment while in custody, receive the same
protection as inmates. See Payne, 161 F.3d at
1041.

/3 Other courts have denied summary judgment motions
by defendants in similar situations. See Greason
v. Kemp, 891 F.2d 829, 831-32, 835 (11th Cir.
1990) (finding that a factfinder could conclude
that defendants were deliberately indifferent to
decedent’s needs because defendants were aware
that decedent had contemplated suicide, continued
to have suicidal tendencies, and was taking
antidepressants); Cabrales v. County of Los
Angeles, 886 F.2d 235 (9th Cir. 1989) (finding
deliberate indifference because the same jailers
had rescued decedent from a previous suicide
attempt); Partridge v. Two Unknown Police
Officers, 791 F.2d 1182 (5th Cir. 1986) (finding
deliberate indifference because defendants knew
that decedent had attempted suicide in a previous
confinement); Viero v. Bufano, 925 F. Supp. 1374,
1377-78, 1388 (N.D. Ill. 1996) (finding genuine
issue of material fact because defendants knew
about decedent’s emotional health, his
depression, his thoughts of suicide, and his need
for medication); Guglielmoni v. Alexander, 583 F.
Supp. 821 (D. Conn. 1984) (finding genuine issue
because inmate hanged himself after previous
faked suicide); Matje v. Leis, 571 F. Supp. 918
(S.D. Ohio 1983) (finding genuine issue because
inmate’s counsel had informed jailers of
decedent’s suicide threats).

/4 Moreover, the jail was arguably under
constructive notice that some of its policies
were not working. Less than a month before Novack
was incarcerated, another prisoner committed
suicide while supposedly under continuous
surveillance in the observation cell.

/5 While Reeves involved a judgment as a matter of
law, the summary judgment analysis is identical.
See 120 S. Ct. at 2110 ("[T]he standard for
granting summary judgment ’mirrors’ the standard
for judgment as a matter of law, such that ’the
inquiry under each is the same.’" (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-51 (1986))).