In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐2353 and 16‐3130
ESTATE OF JAMES FRANKLIN PERRY,
et al.,
Plaintiffs‐Appellants,
v.
CHERYL WENZEL, et al.,
Defendants‐Appellees.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12‐cv‐00664 — Rudolph T. Randa, Judge.
____________________
ARGUED JANUARY 5, 2017 — DECIDED SEPTEMBER 18, 2017
____________________
Before POSNER, MANION, and WILLIAMS, Circuit Judges.
*
WILLIAMS, Circuit Judge. James Franklin Perry died on the
floor of the Milwaukee County Criminal Justice Facility less
than 24 hours after Milwaukee City police officers arrested
him. Shortly after he was arrested, Perry suffered a seizure.
Circuit Judge Posner retired on September 2, 2017, and did not par-
*
ticipate in the decision of this case, which is being resolved by a quorum
of the panel under 28 U.S.C. § 46(d).
2 Nos. 16‐2353 and 16‐3130
The City transported him to the hospital where he received
treatment. But, after he returned to the City jail, the City failed
to provide Perry with medical care even though he displayed
signs of deteriorating health. Instead, they shackled him and
placed a spit mask over his face. The City officers ignored his
cries for help, his complaints that he could not breathe, and
transferred him to the County’s Criminal Justice Facility.
After arriving at the County’s Criminal Justice Facility, the
County nurses decided that Perry was medically unfit to be
booked into the jail. Yet, they provided him with no medical
care and failed to remove the spit mask, which was seeping
blood. When a nurse finally removed the spit mask, it was
clear that Perry was no longer breathing. Although emer‐
gency efforts were taken, they were unsuccessful and Perry
died on the County facility’s floor. Perry’s estate and his minor
son (to whom we will collectively refer to as “Perry”) brought
suit against a number of police and corrections officers and
the County’s nurses pursuant to 42 U.S.C. § 1983, alleging that
the failure to provide Perry with any medical care while he
was in their custody violated his constitutional rights. Perry
also brought a Monell claim against the City, alleging that it
had a de facto policy of failing to investigate in custody deaths
and ignoring medical complaints made by its detainees.
Lastly, Perry brought state law claims against the individual
defendants. The defendants filed for summary judgment,
which the district court granted on all claims.
On appeal, Perry contends that the district court improp‐
erly weighed the evidence and ignored factual disputes on his
§ 1983 claim. We agree. On this record, which includes sur‐
veillance footage from both the City and County facilities, a
Nos. 16‐2353 and 16‐3130 3
jury could conclude that Perry is entitled to relief on his § 1983
claims.
The defendants contend that even if the district court erred
by improperly weighing the evidence regarding Perry’s § 1983
claims, it properly concluded that they were entitled to qual‐
ified immunity. We disagree, because in 2010, it was clearly
established that a detainee such as Perry was entitled to ob‐
jectively reasonable medical care and failing to provide any
medical care in light of a serious medical need was objectively
unreasonable. As a result, qualified immunity is not a bar to
Perry’s suit. But, we agree with the district court that Perry’s
Monell claim is not viable because he has failed to adequately
support these claims with admissible evidence.
Finally, Perry argues that the district court improperly
concluded that the defendants were entitled to governmental
immunity on his state‐law claims of negligence and wrongful
death. We agree, in part. The district court erred when it de‐
termined that the defendant nurses were entitled to immun‐
ity, because under Wisconsin law, the medical discretion ex‐
ception to governmental immunity applies to their actions.
But, we find that the officer defendants were entitled to im‐
munity, because the medical discretion exception is narrow
and does not extend to police or correctional officers.
I. BACKGROUND
Because Perry appeals from a grant of summary judgment
against him, we construe the evidence and take all reasonable
4 Nos. 16‐2353 and 16‐3130
inferences in his favor. See e.g., Ortiz v. City of Chi., 656 F.3d
523, 527 (7th Cir. 2011).
A. Perry’s Arrest
Shortly after 2:00 a.m. on September 13, 2010, Perry was
arrested by Milwaukee police officers after a traffic stop and
he was transported to the City’s Prisoner Processing Section
(“PPS”), where he was processed. As part of this processing,
at approximately 5:45 a.m., an initial medical intake screening
interview was conducted. The Medical Receiving Screening
Form from that interview indicates that Perry told the officer
conducting the interview that he suffered from seizures as a
result of a previous head injury and that his seizures were
treated twice a day with medication. Perry also stated that he
had not taken his medication the afternoon before. Even
though he had not taken his medication, the City did not give
or get him any medication.
After being screened and disclosing his medical condition
to the officers, Perry was placed in a large holding cell. This
cell—known as “the bullpen”—was capable of holding up to
150 detainees at a time. In the bullpen, approximately 12
hours after he was arrested, Perry had a seizure. During the
seizure, Perry struck his head on the concrete floor. After‐
wards, Perry was able to communicate and was cooperative
with officers. The Milwaukee Fire Department was sum‐
moned, and emergency medical technicians attended to
Perry’s medical needs in the PPS.
B. Perry Is Treated at Hospital
Perry was then transported by private ambulance to the
Aurora Sinai Medical Center with Officer Corey Kroes while
his partner, Officer Crystal Jacks, followed behind in a police
Nos. 16‐2353 and 16‐3130 5
car. In the ambulance, Perry was awake, but appeared tired
and did not talk very much. After arriving at the hospital,
Perry was cooperative with medical professionals and was
able to answer their questions.
The two officers remained with Perry while he was treated
in the emergency room. Shortly after arriving, Perry informed
the officers and hospital personnel that he had to use the bath‐
room to have a bowel movement. He was able to slowly walk
to the bathroom on his own. He was neither wobbly nor un‐
steady. He also walked back to his bed on his own. But, after
returning from the bathroom, he had at least two more sei‐
zures. According to Officer Kroes, after each seizure, Perry be‐
came more tired, weak, and less responsive. To treat his sei‐
zures, Perry was given Dilantin, a drug used to prevent sei‐
zures, and Ativan, a sedative also used to treat seizures. Perry
began to mumble, occasionally screamed out, and began to
drool.
Both Officers Kroes and Jacks were concerned about
Perry’s condition and why he did not seem to be improving.
Officer Jacks expressed her concern to the hospital medical
staff, who told her that his condition had changed because of
the medication he had been given. But a doctor said that Perry
could stay in the emergency room a short time longer so that
he could rest. So, the officers stayed in the hospital for another
30 minutes. The officers also insist that the message from the
medical staff was clear: Perry’s drowsy condition was because
of the medication and that he was going to be released. In fact,
according to Officer Kroes, one of the nurses told him that
Perry was simply faking his condition.
6 Nos. 16‐2353 and 16‐3130
Officer Jacks was concerned that Perry was going to be re‐
leased, so she called the PPS supervisor, Lieutenant Karl Rob‐
bins. She told him that although Perry attempted to dress
himself to leave the hospital, he was unable to do so on his
own. She also told him that Perry was unable to walk. Officer
Jacks asked whether they should return Perry to the PPS, or
take him to the County’s Criminal Justice Facility (“CJF”),
where nurses were available. Lieutenant Robbins instructed
the officers to return to the PPS with Perry and that he could
not be transferred to the CJF since his paperwork was not
complete. According to Officer Kroes, Lieutenant Robbins
told them that they somehow had to get Perry back to the PPS,
even if it meant calling for extra officers to come help carry
him. However, Lieutenant Robbins contends that he never re‐
ceived a report that Perry’s condition had deteriorated. In‐
stead, he asserts that he was told that Perry was not cooperat‐
ing at the hospital.
Nonetheless, at approximately 6:45 p.m., Perry was dis‐
charged. Although his medical record states that he was “alert
and appropriate upon [discharge],” according to the officers,
Perry was unable to walk on his own and was unsteady on his
feet. As a result, he was unable to get into a wheelchair on his
own, and the officers had to assist him in doing so. The offic‐
ers placed Perry, handcuffed, in the back seat of their police
vehicle. Officer Jacks placed him in his seat belt. Perry was not
combative or otherwise uncooperative. The two officers then
drove Perry back to the PPS, which was only minutes away
from the hospital.
The hospital provided the officers with Perry’s discharge
paperwork. This paperwork noted that Perry had suffered
from a seizure and indicated that the most common cause of
Nos. 16‐2353 and 16‐3130 7
a recurrent seizure was a missed dose of seizure medication.
Additionally, the paperwork identified side effects from the
Dilantin he had received. These side effects included, ”[w]ob‐
bly gait, poor balance or coordination, slurred speech, jerky
eye movement, drowsiness.” Lastly, the paperwork instructed
Perry to “GET PROMPT MEDICAL ATTENTION” if he,
among other things, experienced unusual irritability, drowsi‐
ness or confusion or remained confused for more than 30
minutes after a seizure. Officer Jacks understood this to mean
that if Perry’s condition changed, they should return him to
the hospital. The officers brought this paperwork back to the
PPS with them, where, at some point, they gave it to Lieuten‐
ant Robbins, their commanding officer.
C. Perry Returned to PPS
After returning to the PPS, Officers Kroes and Jacks were
met in the garage by two additional police officers, Officers
Froilan Santiago and Rick Bungert, who assisted in removing
Perry from the police car, as he was unable to get out on his
own. Surveillance video from the PPS shows the officers drag‐
ging Perry into the elevator, where they placed him on the
floor with his feet out in front of him.
When the elevator reached the fifth floor, the surveillance
video showed that the four officers, two holding his arms and
two holding his feet, carried Perry down the hallway. The of‐
ficers placed Perry on the floor, as they waited for a cell to be
assigned. While he was on the floor, Officer Bungert placed
him in a compression hold, as Perry moaned and complained
that he was in pain. He also yelled out, at various times, “Je‐
sus, just kill me.”
8 Nos. 16‐2353 and 16‐3130
One of the officers said that Perry was starting to resist
their hold, by pushing against them. The officers repeatedly
told Perry to “behave himself,” as he continually moaned. An‐
other officer, exactly whom is unclear from the video, stated
that Perry was simply “faking it.” Eventually, while still on
the floor of the PPS hallway, Perry defecated and urinated in
his pants. No one inquired as to whether Perry had done that
intentionally, or whether this was an unintentional action that
might suggest that he needed further medical treatment. Nor
did Perry ever receive a new pair of pants.
Lieutenant Robbins was present in the hallway while Of‐
ficer Bungert applied the compression hold to Perry. He spoke
briefly to Perry and both the officers who were restraining
Perry, while he waited for another officer to retrieve a bever‐
age for him from an area outside of the camera’s view. As
Lieutenant Robbins walked away, he laughed. He never in‐
quired as to Perry’s medical condition or whether he needed
medical assistance. And, even though it was obvious that
Perry had defecated and urinated, like his subordinates, Lieu‐
tenant Robbins did not inquire as to whether this was a vol‐
untary act. The smell was so strong, however, that Officer
Jacks eventually became physically ill and vomited.
Approximately 10 minutes after Perry was returned to the
PPS, and after he noticed that Perry was spitting and drooling,
1
Officer Alexander Ayala requested a spit mask. While Perry’s
face is not visible on the video, as the officers applied the spit
mask, one stated, “he’s spitting!” But, it is unclear whether
1
A spit mask, also referred to as an expectorant shield, is a hood‐like
piece of material that is placed over a detainee’s face to prevent the de‐
tainee from being able to spit on officers or other individuals.
Nos. 16‐2353 and 16‐3130 9
Perry was spitting or drooling, and taking the facts in the light
most favorable to Perry, we must assume as he contends, that
this was not an aggressive act. Police Aide, Jacob Ivy, retrieved
the mask and helped the officers place it over Perry’s face.
After the spit mask was applied, the officers could no
longer see Perry’s face. Perry screamed, “help me” and that he
could not see. He continued to yell, “you’re killing me,” and
that he was unable to breathe. Officer Kroes responded to
Perry’s complaint that he could not breathe by stating, “if
you’re talking, you’re breathing.” Perry, still moaning, was
2
then carried by five officers to cell A3. As he was carried to‐
wards the cell, Lieutenant Robbins stated, “now, we’re going
to treat you like we used to treat prisoners … like animals.”
There is no dispute that Lieutenant Robbins, who was later
investigated for this incident, made this statement, which is
also captured on the surveillance footage.3
Before Perry was placed in the cell, the officers removed
his handcuffs and shackles. However, they left his spit mask
2
Perry asserts that another prisoner witnessed the officers drop him
on his face as they were carrying him to cell A3. These allegations are con‐
tained in a police investigation report. We cannot consider these state‐
ments because they are hearsay, for which there is no exception that ren‐
ders them admissible. See Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir.
2016) (noting that the court must find that each layer of hearsay contained
in a police report is admissible before it can consider the entirety of the
report); see also FED. R. EVID. R. 805 (“Hearsay within hearsay is not ex‐
cluded by the rule against hearsay if each part of the combined statements
conforms with an exception to the rule.”).
3
At the conclusion of the investigation, he was given two options: re‐
sign or accept a demotion. He chose to resign and is no longer a member
of the Milwaukee Police Department.
10 Nos. 16‐2353 and 16‐3130
on. Officer Margarita Diaz‐Berg, the Assistant Jailer on duty
that evening, conducted a wellness check of Perry every 15
minutes. While she noticed that he had removed his spit
mask, she also heard him grunting and saw him rolling on the
floor. But, she took no action to determine whether he was ex‐
periencing a medical emergency.
Perry could not be transferred to the CJF until his paper‐
work was completed and because Perry was exhibiting “inap‐
propriate behavior” Lieutenant Robbins expedited it. Around
8:30 p.m., Officer Diaz‐Berg opened the door to cell A3 so that
Officers Frank Salinsky and Richard Lopez could remove
Perry. Perry was compliant as they placed him in handcuffs
and shackles once more. The spit mask was also secured over
his face. Officer Ayala assisted the officers in escorting Perry,
who walked with assistance to the elevator. When the elevator
arrived in the garage, Perry had to be dragged out to the po‐
lice car.
After he was removed from cell A3, Officer Diaz‐Berg and
Lieutenant Robbins observed spots of blood on the floor
where Perry had been. Additionally, Andy Puechner, a janitor
at PPS, observed blood, saliva, urine, and feces on the cell’s
floor. No one, however, relayed this information to the
County. Nor did anyone inquire as to whether these bodily
excretions were caused by a medical condition.
D. Perry Transferred to CJF
Before transferring Perry to the CJF, a County facility, the
City called the facility to inform County officials that they
were transporting a “combative prisoner.” At 8:41 p.m., Perry
arrived at the CJF. Two cameras in the pre‐booking facility
captured the following events.
Nos. 16‐2353 and 16‐3130 11
Two City Officers, Officers Salinsky and Lopez, dragged
Perry into CJF. They were assisted by two County Correc‐
tional Officers, Anthony Arndt and Kelly Kieckbusch. An‐
other City Officer, Stephon Bell, was stationed at a desk by the
door into the CJF’s pre‐booking area, where he served as a li‐
aison between the City and the County as prisoners were
transferred between the two entities. Perry remained in his
soiled clothing from earlier in the day, was fully shackled, and
was wearing the spit mask. Corrections Officer Kieckbusch
noticed that the mask had blood on it. And, while Corrections
Officer Kieckbusch had been told that Perry was a combative
prisoner, she did not observe that he was combative when he
arrived to the CJF. While Corrections Officer Kieckbusch tes‐
tified that Perry “didn’t appear to want to walk,” she could
not say whether Perry was able to walk. Again, taking the
facts in the light most favorable to Perry, we assume that he
was unable to walk when he arrived at the County facility and
was not behaving in a combative manner, which, to the extent
relevant, is for a jury to determine.
The four officers placed Perry on the floor. While sur‐
rounded by the officers, Perry continued to slowly squirm.
Approximately a minute and a half later, the officers moved
Perry to the bench across from the nurses’ station. As he was
moved, his pants fell down around his ankles, exposing his
clearly soiled undergarments. After he was placed on the
bench, Perry continued to writhe and shake. Because the
video does not have sound, it is unclear how much noise he
made.
According to the County’s policy, each inmate received a
medical screening “to identify inmates who perhaps ought
12 Nos. 16‐2353 and 16‐3130
not be accepted into jail custody until they have been medi‐
cally evaluated and cleared for admission.” While Corrections
Officer Kieckbusch sought a nurse to attend to Perry, Sergeant
Fatrena Hale, attempted to communicate with Perry. But,
Perry’s responses were unintelligible. In her report, Sergeant
Hale noted that “[b]lood was seeping” from Perry’s spit mask.
According to Nurse Nicole Virgo, a registered nurse who
worked four shifts a month at the CJF as a “pool nurse,” an
unidentified correctional officer approached her and asked
her to evaluate Perry. That correctional officer told Nurse
Virgo that Perry had recently been to the hospital. So, Virgo
looked at his medical records, which indicated that Perry had
suffered from a seizure and had been given seizure medica‐
tion at the hospital earlier that day. The discharge notes did
not indicate that Perry had a heart condition or had suffered
from chest pain or difficulty breathing.
At 8:45 p.m., Nurse Virgo approached Perry and spoke to
him from a distance. Although she contends that she knew
something was wrong with Perry the minute she saw him, the
video clearly shows that she never touched Perry, never took
his vitals, and did not remove his spit mask. While Nurse
Virgo observed that Perry was not labored in his breathing,
she also observed “profuse blood” on his spit mask and that
he had soiled himself—two conditions that she believed were
signs of distress. During this interaction, Corrections Officers
Kieckbusch and Arndt physically restrained Perry on the
bench. After 32 seconds, Nurse Virgo walked away to call the
attending physician to get an official order allowing her to re‐
fuse to book Perry into the CJF.
Almost a minute after Nurse Virgo walked away, Correc‐
tions Officers Kieckbusch and Arndt allowed Perry to slide to
Nos. 16‐2353 and 16‐3130 13
the floor, as Officers Salinsky and Lopez walked back towards
the entrance to the CJF. Once Perry was on the floor, Correc‐
tions Officer Kieckbusch walked away, leaving Corrections
Officer Arndt standing by Perry’s side. Perry continued to roll
around on the floor, in shackles and the spit mask, with his
pants around his ankles. Nurse Virgo returned to Perry, ap‐
pearing to ask him additional questions. But, she neither
touched Perry nor removed his blood‐stained spit mask.
Again, Nurse Virgo left Perry’s side.
While Perry was laying on the floor, Nurse Cheryl Wenzel
stood behind the nurses’ station observing him. As Perry con‐
tinued to roll around on the floor in front of Corrections Of‐
ficer Arndt, she too did nothing. At 8:48 p.m., Sergeant Hale
called for an ambulance to come to the facility. Yet, no medical
attention was provided to Perry. At 8:49 p.m., Corrections Of‐
ficer Arndt walked away, and Perry was left alone on the floor
of the CJF. Over a two‐minute period, Perry continued to
writhe around, his movements slowing over time.
At 8:51 p.m., Nurse Wenzel instructed Officers Salinsky
and Lopez to lift Perry’s body up. While they did so, she stood
at a distance from Perry. She then asked the officers to remove
his spit mask so that she could wipe his face off with a towel.
But, when she did, Perry’s head fell backwards, his eyes rolled
back into his head, and it became clear that he was no longer
breathing. It was also clear that the amount of blood around
Perry’s mouth was much more significant than it had ap‐
peared with the spit mask over his face. For the first time since
Perry returned from the hospital, at 8:52 p.m., his vital signs
were taken by Nurse Wenzel, who discovered that Perry no
longer had a pulse.
14 Nos. 16‐2353 and 16‐3130
A medical emergency was called at 8:52 p.m. and emer‐
gency efforts were taken to revive Perry. Officer Abie Douglas
delivered the CJF’s resuscitation bag to the nurses and re‐
turned to his post in the booking room. Officer Sheila Jeff de‐
livered an Automated External Defibrillator (“AED”) to the
area, and then, like Officer Douglas, returned to her post in
the booking room.
Although the Milwaukee Fire Department was dispatched
to the CJF and life‐saving measures were employed, efforts to
revive Perry were unsuccessful. He was pronounced dead at
approximately 9:21 p.m., less than 24 hours after he was first
arrested. An autopsy revealed that Perry died from a coronary
artery thrombosis, or as the medical examiner explained, he
had a clot in one of the heart’s blood vessels that deprived
Perry’s heart of blood and oxygen.
E. Procedural History
On June 8, 2012, Perry’s Estate and his minor son (to whom
we will refer to collectively as “Perry”) filed a complaint in
Wisconsin state court. On June 29, 2012, the defendants peti‐
tioned to remove the case to the United States District Court
for the Eastern District of Wisconsin pursuant to 28 USC
§ 1441(a) and (c). Perry filed an Amended Complaint, the op‐
erative complaint in this action, on March 25, 2013, which con‐
tained claims pursuant to 42 U.S.C. § 1983 and state‐law
claims including negligence and wrongful death. It named as
defendants Milwaukee County and a group of its employees:
Cheryl Wenzel, Deputy Kickbush, Nicole Virgo, Tina Watts,
Fatrena Hale, Sheriff David A. Clarke, Kelly Kieckbusch, Abie
Douglas, Anthony Arndt, Sheila Jeff, Darius Holmes, and
Richard E. Schmidt, the City of Milwaukee and a group of its
Nos. 16‐2353 and 16‐3130 15
employees: Richard Lopez, Frank Salinsky, Stephon Bell, Mar‐
garita Diaz‐Berg, Alexander Ayala, Froilan Santiago, Karl
Robbins, Crystal Jacks, Corey Kroes, Rick Bungert, Luke Lee,
Jacob Ivy, Shannon Jones, Richard Menzel, Police Chief Ed‐
ward Flynn, Roman Galaviz, and Victor Beecher, and the Wis‐
4
consin County Mutual Insurance Corporation.
1. District Court Granted Summary Judg‐
ment
After the close of discovery, the defendants filed a motion
5
for summary judgment. Although Perry presented his § 1983
claims in his Amended Complaint as Eighth Amendment de‐
liberate indifference claims, the district court held that be‐
cause Perry was a pre‐trial detainee who had yet to receive his
probable cause hearing, his claims were governed by the ob‐
jectively unreasonable standard of the Fourth Amendment.
But, even under this more lenient standard, the district court
determined that Perry’s claims failed, as it was reasonable for
the City officers to attribute Perry’s change in behavior to the
medications he received while in the hospital. Likewise, the
4
Also named as defendants were the Aurora Sinai Medical Center, Dr.
Paul Coogan, and Nurse Rebecca Potterton. These claims were later dis‐
missed with prejudice on March 3, 2014 pursuant to a stipulation between
the parties.
5
Perry did not oppose summary judgment on his state constitutional
claim and his individual liability § 1983 claims against defendants Jones,
Menzel, Galaviz, Beecher, Watts, Douglas, and Schmidt.
16 Nos. 16‐2353 and 16‐3130
district court concluded that the claims against the County de‐
fendants also failed because, among other things, Perry was
never in its custody, as Nurse Virgo had rejected his booking.
Further, the district court concluded that even if Perry had
established his Fourth Amendment claims, qualified immun‐
ity barred his suit, as reasonable officers would disagree as to
whether the officers’ actions before and after Perry was dis‐
charged from the hospital were objectively unreasonable.
Perry also failed to establish that the City was liable pursuant
to Monell v. Department of Social Services of City of New York, 436
U.S. 658 (1978), because, according to the district court, such
6
liability was dependent upon the individual officers’ liability.
And, because the individual officers were not liable, the dis‐
trict court found that Monell liability did not attach.
With regard to the state law claims, the district court found
the defendants had not breached their duty to treat Perry with
ordinary care. Even if they had, the district court reasoned
that they were entitled to discretionary immunity under Wis‐
7
consin law, and therefore Perry’s claims were barred. There‐
fore, the district court granted the motions for summary judg‐
ment in their entirety and dismissed Perry’s suit.
2. District Court Awarded Sanctions and
Costs
The County defendants also filed a motion for sanctions
pursuant to 28 U.S.C. § 1927. The district court concluded that
6
Perry did not oppose summary judgment on his Monell claim against
the County.
7
Perry also did not oppose summary judgment with regard to his
state‐law conspiracy claim against Officers Bell and Jones.
Nos. 16‐2353 and 16‐3130 17
Perry’s attorneys should have known that their claims were
baseless after reviewing the surveillance footage from the CJF
and taking the depositions of two County employees who tes‐
tified that Perry was never booked into the County’s custody.
The court also noted that counsel engaged in “repetitive, abu‐
sive and argumentative conduct” during depositions. There‐
fore, the district court concluded that sanctions were appro‐
priate and granted the County’s motion. It did not, however,
allow Perry’s counsel the opportunity to be heard before im‐
posing such sanctions. Instead, the district court entered an
order awarding the County defendants $288,999.38 in sanc‐
tions, attorney’s fees, and costs. This appeal followed.
II. ANALYSIS
On appeal, we review a district court’s grant of summary
judgment de novo. Suarez v. W.M. Barr & Co., Inc., 842 F.3d 513,
517 (7th Cir. 2016). We must construe all facts in the light most
favorable to Perry as the non‐moving party. Westfield Ins. Co.
v. Natʹl Decorating Serv., Inc., 863 F.3d 690, 695 (7th Cir. 2017),
rehʹg and suggestion for rehʹg en banc denied (Aug. 14, 2017).
Summary judgment is only appropriate where “there is no
genuine dispute as to any material fact and the movant is en‐
titled to judgment as a matter of law.” FED. R. CIV. P. R. 56(a).
Here, Perry brings individual liability and Monell claims
pursuant to § 1983 and state law claims of negligence and
wrongful death. We address each claim in turn.
A. Perry’s § 1983 Claims
To establish his § 1983 claim, Perry must demonstrate that
the individual defendants: (1) acted under the color of state
law; and (2) deprived him of a constitutional right. Colbert v.
City of Chi., 851 F.3d 649, 656 (7th Cir. 2017). Here, there is no
18 Nos. 16‐2353 and 16‐3130
dispute that all of the named defendants were acting in their
official capacities as state actors during the events on the night
of September 13, 2010.
Perry’s Amended Complaint contends that he is entitled to
relief because the defendants violated his Eighth Amendment
rights when they acted with deliberate indifference to his
medical needs. But, Perry, who had been in custody for less
than 24 hours when he died, never received a probable cause
hearing. Therefore, the district court properly concluded that
it is the Fourth Amendment, and not the Eighth, that governs
Perry’s claims. See Williams v. Rodriguez, 509 F.3d 392, 403 (7th
Cir. 2007) (noting that claims challenging the conditions of
confinement brought by “pretrial detainees … who have not
yet had a judicial determination of probable cause (a Gerstein
hearing), are instead governed by the Fourth Amendment”)
(citing Lopez v. City of Chi., 464 F.3d 711, 719 (7th Cir. 2006));
see also Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir.
2007) (noting that the governing standard for a claim of inad‐
equate medical care prior to a probable cause determination
is the Fourth Amendment’s reasonableness standard). So, to
succeed on his claim, Perry must demonstrate that the offic‐
ers’ actions were “objectively unreasonable under the circum‐
stances,” a less demanding standard than the Eighth Amend‐
ment’s deliberate indifference standard. Williams, 509 F.3d at
403 (citing Lopez, 464 F.3d at 720).
The City defendants contend that Perry is precluded from
asserting his claims under the Fourth Amendment because
his Amended Complaint failed to do so. This argument is
without merit because, as we have noted before, “there is no
duty to plead legal theories.” Currie v. Chhabra, 728 F.3d 626,
629 (7th Cir. 2013). Therefore, as long as Perry’s Amended
Nos. 16‐2353 and 16‐3130 19
Complaint provided adequate notice to the defendants of his
claims, it is immaterial whether it mentioned the Fourth or the
Eighth Amendment. Id.
It is clear from the Amended Complaint that Perry’s claims
were based on his belief that he received constitutionally in‐
adequate medical care while in the defendants’ custody. And,
it cannot be said that the defendants were prejudiced by the
Amended Complaint’s failure to invoke the proper Amend‐
ment. Rather, because the defendants were clearly aware that
Perry had yet to receive a judicial probable cause determina‐
tion at the time of his death, the Amended Complaint suffi‐
ciently placed the defendants on notice of the nature of Perry’s
§ 1983 claims, and that they arose under the Fourth Amend‐
ment. Therefore, the district court did not err in reaching the
merits of Perry’s § 1983 claims.
1. Summary Judgment on Perry’s § 1983 Claims
Was Improperly Granted
“[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his
safety and general well‐being.” DeShaney v. Winnebago Cty.
Depʹt of Soc. Servs., 489 U.S. 189, 199–200 (1989). When consid‐
ering whether the medical care provided comported with the
objectively reasonable requirement of the Fourth Amend‐
ment, we are guided by four factors: “(1) whether the officer
has notice of the detaineeʹs medical needs; (2) the seriousness
of the medical need; (3) the scope of the requested treatment;
and (4) police interests, including administrative, penological,
or investigatory concerns.” Ortiz, 656 F.3d at 530 (citing Wil‐
liams, 509 F.3d at 403).
20 Nos. 16‐2353 and 16‐3130
Here, the defendants do not (and cannot) argue that the
scope of the requested treatment—returning Perry to a hospi‐
tal or simply checking his vital signs to see if further treatment
was necessary—was too onerous or unreasonable. Nor do the
defendants contend that the fourth prong, the interest of po‐
lice, weighed against doing so. Rather, on appeal, the defend‐
ants argue that Perry cannot establish the first two prongs—
notice and a serious medical need. Our ultimate inquiry, how‐
ever, is “whether the conduct of each defendant was objec‐
tively reasonable under the circumstances.” Id. at 531.
a. City Defendants
The district court concluded that it was reasonable for the
City’s police officers named as defendants to presume that af‐
ter Perry was discharged from the hospital, “he was fine for
8
the time‐being.” R. 143 at 20. It also determined that the of‐
ficers were reasonable in attributing Perry’s “behavioral is‐
sues” to either the medication he had received and seizures
he had suffered or Perry’s desire not to comply with the po‐
lice. But, in coming to these conclusions, the district court im‐
properly credited the officers’ testimony that they never per‐
ceived that Perry was in distress while he was in their custody
and prior to collapsing on the floor of the CJF. This was an
error, as it ignores the district court’s obligation at summary
judgment to consider the evidence in the light most favorable
to Perry and to refrain from making credibility determina‐
tions. See Deets v. Massman Const. Co., 811 F.3d 978, 982 (7th
Cir. 2016) (noting that “credibility determination[s] may not
8
All record citations are to the record in the United States District
Court for the Eastern District of Wisconsin
Nos. 16‐2353 and 16‐3130 21
be resolved at summary judgment.”); see also Anderson v. Lib‐
erty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determi‐
nations, the weighing of the evidence, and the drawing of le‐
gitimate inferences from the facts are jury functions, not those
of a judge … .”).
Additionally, the district court placed too much emphasis
on the fact that the City sought medical care for the seizure
Perry suffered in the bullpen. To be clear, this treatment is rel‐
evant to our analysis. But, simply because Perry received
treatment at some point during his detention does not com‐
pletely absolve the officers from liability as a matter of law.
Rather, his hospitalization must be considered among the
other facts when determining whether or not the officers were
reasonable in the way that they treated Perry after his return
from the hospital. After review of the record, we find that fac‐
tual disputes abound that require the case to be submitted to
a jury.
Officers can be placed on notice of a serious medical con‐
dition either by word or through observation of the detainee’s
physical symptoms, Williams, 509 F.3d at 403, both of which
were present here. Officers Kroes and Jacks were with Perry
at the hospital. They observed him have multiple seizures and
saw him receive treatment and medication. Both admit that
they had concerns about Perry returning to the PPS and
whether that was a proper course of action. Because of their
concerns, Officer Jacks called Lieutenant Robbins to discuss
how to proceed. Taking the facts in the light most favorable to
Perry, Lieutenant Robbins’ response was that the officers were
to do whatever it took to bring Perry back to the PPS despite
their concerns.
22 Nos. 16‐2353 and 16‐3130
When Perry was discharged to Officers Kroes and Jacks,
they were provided with his discharge instructions. The in‐
structions put these officers on notice that if Perry were to ex‐
perience certain changes in his physical or mental state, he
should be returned to the hospital. The instructions directed
Perry to “GET PROMPT MEDICAL ATTENTION” if he expe‐
rienced, among other things, “unusual irritability, drowsiness
or confusion,” if he remained “confused for more than 30
minutes after a seizure” or if he had a fever over 100.4 degrees.
When they returned with Perry to the police station, Perry
was unable to walk. So they, along with Officers Froilan San‐
tiago and Rick Bungert, dragged Perry, a known seizure vic‐
tim returning from the hospital, into the facility. Sometime af‐
ter their arrival at the PPS, Officers Kroes and Jacks provided
the discharge instructions to their commanding officer, Lieu‐
tenant Robbins, placing him on notice of the hospital’s guid‐
ance.
While he was on the floor and surrounded by Officers
Kroes, Jacks, Santiago, Bungert, Ayala, Lee, and Police Aide
Ivy, Perry began to moan. He also defecated and urinated. A
jury could view Perry’s actions on the video and find that this
constituted a change in Perry’s condition that put the officers
on notice of a serious medical need. The jury could also con‐
clude that it was unreasonable for these officers not to seek
medical care on Perry’s behalf.
The jury could also consider Perry’s own words and con‐
clude that there was a change in his condition that put the of‐
ficers on notice of a serious medical need. On the surveillance
video, Perry can be heard crying out, “help me,” “you are kill‐
ing me,” and that he was in pain. The officers placed this man,
who had just returned from the hospital after having multiple
Nos. 16‐2353 and 16‐3130 23
seizures, in a compression hold. We cannot, as a matter of law,
say that the officers were reasonable in ignoring Perry’s cries
for help and in their actions, especially in light of his physical
condition at the time and the medical issues that were known
to the officers restraining him.
After Perry, who again was known to have just suffered
from a series of seizures only hours before, had already defe‐
cated and urinated, he began to spit or drool into his lap. But,
the officers still did not obtain medical care for him. Nor did
they check his vitals or take any other actions to determine
whether Perry was having a medical event. Rather, the offic‐
ers contend that they perceived this behavior as that of a com‐
bative or uncooperative prisoner. So, they placed a spit mask
over Perry’s face. Officer Ayala noticed a “slight tint of red in
some of his saliva, and a spot of red‐tinted saliva on his chin,”
while doing so. Yet, he did not inquire into the source of the
blood or whether it was indicative of a medical issue. And,
even when Perry began to complain that he could not breathe,
additional statements from which a jury could conclude
placed the officers on notice of a serious medical need, the of‐
ficers did nothing. Instead, Officer Kroes responded to Perry’s
complaint by stating, “If you’re talking, you’re breathing.”
While the officers contend that their response was objec‐
tively reasonable because Perry’s actions were consistent with
those of a combative or uncooperative prisoner, this is again,
a factual dispute that must be determined by a jury. The same
is true of their assertion that they believed that Perry was
simply exhibiting the side effects of the medication he had re‐
ceived while in the hospital. While his inability to walk might
be considered a side effect spelled out in his discharge instruc‐
tions, nowhere in those instructions is the inability to control
24 Nos. 16‐2353 and 16‐3130
one’s bowels or saliva listed as side effects. Therefore, it was
improper for the district court to conclude that there was no
factual dispute regarding whether the officers were on notice
of a serious medical issue after Perry was discharged from the
hospital. That is for a jury to decide.
Likewise, the district court erred in concluding that Lieu‐
tenant Robbins responded in an objectively reasonable man‐
ner. Lieutenant Robbins can be seen on the video interacting
with Perry, who was restrained on the ground, having soiled
himself, moaning, and complaining that he was in pain. In‐
stead of directing his subordinates to take Perry back to the
hospital, Lieutenant Robbins is seen on the video laughing as
he walked away from Perry. And, when Perry was later car‐
ried to cell A3, Lieutenant Robbins is clearly heard telling him
that “now, we’re going to treat you like we used to treat pris‐
oners … like animals.”
Lieutenant Robbins contends that his actions were reason‐
able and that he even expedited Perry’s paperwork so that he
could be transferred more quickly to the CJF, as Perry was ex‐
hibiting “inappropriate behavior.” Further, he attempts to of‐
fer benign explanations for both his laughing and his com‐
ment to Perry. But, the jury could conclude that Lieutenant
Robbins was on notice of Perry’s serious medical need from
his observations of Perry and his discharge instructions. The
jury could also take his barbaric comment and laughing as an
objectively unreasonable response to that serious need. Fur‐
ther, a jury could consider his decision and actions to expedite
Perry’s transfer as evidence that he knew that Perry had a se‐
rious medical need, but did not want to manage that need in
Nos. 16‐2353 and 16‐3130 25
his facility, passing the buck to another facility to do so in‐
stead. Summary judgment was improperly granted as to
Lieutenant Robbins.
Officer Diaz‐Berg helped carry Perry to cell A3 and was
responsible for conducting wellness checks on Perry while he
was in the cell. She knew that he had been to the hospital ear‐
lier that day because of the seizure he experienced in the bull‐
pen. While Perry was in cell A3, she observed him every 15
minutes and heard him making grunting noises and rolling
around. Yet, she did nothing to inquire about his condition.
Later, she opened the cell so that the officers could remove
Perry and transport him to the CJF. After the officers removed
Perry, she entered the cell and noticed that there was blood on
the floor where Perry had been. Although she notified Lieu‐
tenant Robbins about the blood, she did not make any efforts
to contact the County or to ensure that Perry had received
medical treatment. And, Officer Diaz‐Berg does not assert
that reporting her observations to Lieutenant Robbins should
absolve her from liability. Rather, her argument rests on her
belief that she did not observe Perry experiencing a medical
emergency while in cell A3. For the reasons we discuss above,
this is not sufficient to establish that summary judgment is
appropriate. A jury could infer from these facts that she was
on notice that Perry had a serious medical need and her fail‐
ure to take action while he was in the cell, or after she discov‐
ered the blood, was objectively unreasonable.
Officers Lopez and Salinsky’s actions could also be consid‐
ered objectively unreasonable. Although, Officer Diaz‐Berg
contends that Perry walked to the elevator after he was re‐
moved from cell A3, the surveillance video shows that Offic‐
ers Lopez and Salinsky had to drag Perry out of the elevator
26 Nos. 16‐2353 and 16‐3130
to their police car. Additionally, while there is evidence that
these officers provided Perry’s discharge papers to the
County, they did not verbally indicate anything about his
medical condition at the PPS or his earlier hospitalization. The
jury could infer from Perry’s physical condition that when he
arrived at the CJF, the officers were on notice of his serious
medical condition and their failure to take him to the hospital
was objectively unreasonable. Officers Lopez and Salinsky do
not assert that they did not have the authority to take Perry to
the hospital. Rather, their arguments, like those of Officer
Diaz‐Berg, are based on their assertion that Perry was not ex‐
periencing a medical emergency in their custody. Alterna‐
tively, a jury could decide that these officers acted reasonably
in that they transported Perry to a facility, the CJF, where they
knew that medical staff would attend to his needs. Yet, this is
not a decision that we can make.
Chief Flynn asserts that there is no basis for a § 1983 per‐
sonal liability claim against him because he was not person‐
ally involved in the events that occurred on September 10,
2013. We need not address this argument, however, as the
Amended Complaint does not plead an individual liability §
1983 claim against Flynn.
b. County Defendants
Perry’s claims against the County defendants did not
begin until after the City defendants dragged and essentially
deposited Perry on the floor of the County facility with soiled
pants, an awful stench, and in an alarming medical state. We
acknowledge that the County defendants encountered Perry
under very different circumstances than the City defendants
found him. Still, we evaluate Perry’s claims as they are made
Nos. 16‐2353 and 16‐3130 27
against the County defendants, and defer any factual ques‐
tions about the relative culpability of City defendants versus
County defendants as questions for trial.
The district court concluded that Perry’s § 1983 claims
against the County defendants failed as a matter of law be‐
cause Perry was never in the County’s custody and therefore,
none of the County defendants owed him a constitutional
duty. However, the district court’s conclusion that Perry was
not in the County’s custody was based upon Nurse Virgo’s de‐
cision not to accept Perry as an inmate because of the condi‐
tion in which he arrived. We disagree with the district court’s
analysis, as it improperly substituted the County’s booking
policy for the proper constitutional analysis.
It is the Fourth Amendment and not a County’s policy that
governs Perry’s claim. The district court erred when it permit‐
ted the County, via its own policy, to determine whether or
not the United States Constitution applied to its actions. Such
a rule would allow municipalities to easily isolate themselves
from liability by enacting policies that have the effect of dic‐
tating when their constitutional duties begin. We reject this
rule.
Instead, the district court should have applied the consti‐
tutional analysis for determining whether a seizure has oc‐
curred, as the Fourth Amendment protects “against unrea‐
sonable searches and seizures.” U.S. CONST. amend. IV. When
determining whether there has been a seizure, “the traditional
approach is whether the person believed he was ‘free to
leave.’” Carlson v. Bukovic, 621 F.3d 610, 618 (7th Cir. 2010).
This is an objective standard, which focuses on how a reason‐
able person in the suspect’s position would have understood
the situation. Qian v. Kautz, 168 F.3d 949, 954 (7th Cir. 1999)
28 Nos. 16‐2353 and 16‐3130
(citing Sprosty, 79 F.3d at 642; California v. Beheler, 463 U.S.
1121, 1125 (1983)).
Here, no reasonable jury could conclude that Perry was
not in the County’s custody. County officers assisted in drag‐
ging Perry into the facility and placed him inside the facility,
behind a door that could only be opened by a County officer.
Further, while Nurse Virgo examined Perry, two County of‐
ficers (not City officers) physically restrained him on the
bench. A reasonable person in Perry’s position would not have
believed that he was free to leave the County facility. Further,
a reasonable person would have believed that it was the
County that was restricting his movement, based upon the
fact that the County controlled the entrance and that County
Correctional Officers were physically restraining him. There‐
fore, we hold that Perry was in the County’s custody when he
died even though the formal booking process was not com‐
pleted.
Despite concluding that Perry was not in the County’s cus‐
tody at any point on the night of September 13, 2010, the dis‐
trict court also concluded that Perry failed to establish that the
County defendants’ actions were objectively unreasonable
under the circumstances. In coming to this conclusion the
court noted that Nurses Virgo and Wenzel “did everything in
their power to help Perry upon his arrival at the County Jail.”
R. 143 at 20. But, after viewing the surveillance footage from
that night, we are unable to come to the same conclusion.
Admittedly, Perry was only in the County’s custody for a
short period of time. Yet, the jury could view the video from
that night and disagree with the district court’s characteriza‐
tion of the nurses’ actions. Nurse Virgo, the first medical pro‐
fessional to come into contact with Perry after he was released
Nos. 16‐2353 and 16‐3130 29
from the hospital, interacted with Perry for just over 30 sec‐
onds after he first arrived. There is evidence that his spit mask
was “seeping blood,” yet, Nurse Virgo did not remove the
mask to determine why Perry was bleeding or the blood’s
origin. She did not take his vitals or even touch him. It was
only after Nurse Wenzel removed Perry’s mask almost seven
minutes later that Nurse Virgo first touched Perry when ren‐
dering emergency aid. And, while Nurse Virgo contends that
she knew that Perry was medically unfit to be booked from
her first interaction with him, she did not immediately call for
help. Rather, three minutes passed before an ambulance was
called. Further, it is not clear, based upon this record, whether
the ambulance was told it was urgent to come at that time or
if that message was only relayed to emergency dispatchers at
8:52 p.m., when a medical emergency was finally declared.
The district court improperly concluded that there was no fac‐
tual dispute as to whether Nurse Virgo’s actions were objec‐
tively reasonable.
The same is true of the district court’s conclusion regard‐
ing Nurse Wenzel’s actions. Although she was not initially
summoned to attend to Perry, she was present in the CJF and
chose to stand at the nurses’ station to observe Perry rather
than render any treatment. Ultimately, she decided to remove
Perry’s mask, which revealed his dire condition. The County
misses the point when it argues that it was only then that the
nurses knew that Perry was experiencing a medical emer‐
gency. Rather, a jury could determine that it was this delay in
removing the mask, which the County seems to assert con‐
cealed the emergent nature of Perry’s condition, that was ob‐
jectively unreasonable. On this record, summary judgment
was inappropriate with regard to the two nurses.
30 Nos. 16‐2353 and 16‐3130
c. Summary Judgment Appropriate for De‐
fendants Arndt, Kieckbusch, Hale, Bell,
Clarke, Holmes, and Jeff
While we take issue with the district court’s decision to
grant summary judgment to Nurses Virgo and Wenzel, we
agree that the officers present in the County facility were en‐
titled to summary judgment. These officers were not medical
professionals. Therefore, they were entitled to rely upon the
nurses’ professional judgment without subjecting themselves
to § 1983 liability. See Greeno v. Daley, 414 F.3d 645, 656 (7th Cir.
2005) (“If a prisoner is under the care of medical experts ... a
non‐medical prison official will generally be justified in be‐
lieving that the prisoner is in capable hands.”) (quoting Spruill
v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (internal quotation
marks omitted)); see also Arnett v. Webster, 658 F.3d 742, 755
(7th Cir. 2011) (“Non‐medical defendants … can rely on the
expertise of medical personnel.”). Therefore, summary judg‐
ment was appropriately granted with regard to Corrections
Officers Arndt and Kieckbusch, and Sergeant Hale. Summary
judgment was also appropriate with regard to Officer Bell, a
City Officer who was stationed at the CJF, as he too was enti‐
tled to rely upon the nurses’ medical judgment. Although Of‐
ficers Salinsky and Lopez were also present in the CJF, a jury
could determine that their actions prior to arriving at the CJF
were objectively unreasonable such that liability should at‐
tach. Therefore, we reiterate that summary judgment was in‐
appropriately granted with regard to these two officers.
We also find that summary judgment was appropriate
with regard to Sheriff Clarke and Corrections Officers Jeff and
Holmes. Individual liability pursuant to § 1983 “requires per‐
sonal involvement in the alleged constitutional deprivation.”
Nos. 16‐2353 and 16‐3130 31
Colbert, 851 F.3d at 657 (quoting Minix v. Canarecci, 597 F.3d
824, 833 (7th Cir. 2010) (internal quotation marks omitted)).
After discovery, Perry has not been able to demonstrate that
these three defendants were personally involved in the denial
of medical care. There is no allegation that Sheriff Clarke was
even present in the facility that night. Corrections Officer
Jeff’s involvement was limited to retrieving the AED device
that was used to render emergency care to Perry. She then re‐
turned to her post in the booking room. There is no allegation
that her actions were objectively unreasonable, and therefore,
this minimal involvement is not sufficient to invoke liability.
Lastly, Corrections Officer Holmes was assigned to the control
tower that night. Perry has not offered any evidence to con‐
tradict the County’s assertion that Corrections Officer Holmes
was not permitted to leave that post, as he controlled entry
into the CJF. Therefore, summary judgment was appropri‐
ately granted with regard to these three defendants.
d. Causation Sufficiently Established
The City defendants assert that summary judgment was
also appropriate because Perry failed to establish causation.
In support of this argument, the City notes that Perry died of
a heart condition, not a seizure, and that this heart condition
was unknown to the officers in his presence that night.
The City is correct that to prevail on his § 1983 claims,
Perry must demonstrate that the unconstitutional actions al‐
leged caused him harm. See Ortiz, 656 F.3d at 530. In Ortiz, we
discussed this requirement and noted:
Where an obviously ill detainee
dies in custody and the defend‐
antsʹ failure to provide medical
32 Nos. 16‐2353 and 16‐3130
care is challenged, the causation
inquiry is quite broad: “the consti‐
tutional violation in question here
is the failure to provide adequate
medical care [ ] in response to a se‐
rious medical condition, not
‘causing her death.’”
Ortiz, 656 F.3d at 535 (quoting Gayton v. McCoy, 593 F.3d 610,
619 (7th Cir. 2010) (alteration in original)). So, if a plaintiff “of‐
fers evidence that allows the jury to infer that a delay in treat‐
ment harmed an inmate, there is enough causation evidence
to reach trial.” Gayton, 593 F.3d at 624–25. This is true here,
where the jury could infer that although Perry ultimately died
of a heart condition, it was the delay in providing any treat‐
ment that caused the harm, i.e., his death on the floor of the
CJF. Therefore, we reject the City’s argument that there is in‐
sufficient evidence of causation to survive its motion for sum‐
mary judgment.
e. Qualified Immunity Inappropriate
The defendants contend that the district court properly
concluded that qualified immunity barred Perry’s § 1983
claims. As a question of law, we review qualified immunity
determinations de novo. See Estate of Clark v. Walker, No. 16‐
3560, 2017 WL 3165632, at *4 (7th Cir. July 26, 2017). Qualified
immunity “protects public servants from liability for reason‐
able mistakes made while performing their public duties.”
Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013). We en‐
gage in a two‐part inquiry when determining whether quali‐
fied immunity bars suit: “(1) whether the facts, taken in the
light most favorable to the plaintiff, make out a violation of a
constitutional right, and (2) whether that constitutional right
Nos. 16‐2353 and 16‐3130 33
was clearly established at the time of the alleged violation.”
Gill v. City of Milwaukee, 850 F.3d 335, 340 (7th Cir. 2017) (quot‐
ing Allin v. City of Springfield, 845 F.3d 858, 862 (7th Cir. 2017)
(internal quotation marks omitted)). Having found that the
first element has been met, we now must determine whether
the right was clearly established.
A right is “clearly established” if it is “sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015) (quoting Reichle v. Howards, 132 S.Ct. 2088,
2093 (2012) (internal quotation marks omitted)). If the right
was clearly established, then qualified immunity is not a bar
to suit. Washington v. Haupert, 481 F.3d 543, 547 (7th Cir. 2007).
While the Supreme Court has warned that we must not define
“clearly established law at a high level of generality,” it has
also instructed that there need not be a case directly on point.
Mullenix, 136 S. Ct. at 308 (quoting Ashcroft v. al–Kidd, 563 U.S.
731, 741 (2011) (internal quotation marks omitted)). Nonethe‐
less, “existing precedent must have placed the … constitu‐
tional question beyond debate.” Al‐Kidd, 563 U.S. at 741.
The defendants urge us to narrowly define Perry’s right.
But, in doing so, they are essentially urging us to conclude
that because there is no case with the exact same fact pattern,
qualified immunity applies. That is not what the qualified im‐
munity analysis requires us to do. Rather, we find that in Sep‐
tember 2010, it was clearly established that the Fourth
Amendment governed claims by detainees who had yet to re‐
ceive a judicial probable cause determination. See Williams,
509 F.3d at 403 (“Claims regarding conditions of confinement
for pretrial detainees such as Williams, who have not yet had
34 Nos. 16‐2353 and 16‐3130
a judicial determination of probable cause (a Gerstein hear‐
ing), are instead governed by the Fourth Amendment and its
objectively unreasonable standard.”). In 2007, in Williams, we
identified the four factors later articulated in Ortiz, and upon
which we have relied to evaluate the merits of Perry’s claims.
And, if by 2010, it was clearly established that an officer or
prison nurse’s actions were judged by the objectively reason‐
able standard of the Fourth Amendment, the failure to take
any action in light of a serious medical need would violate that
standard. Because Perry has met his burden at summary judg‐
ment of establishing that there was a violation of his constitu‐
tional rights and that that right was clearly established in
2010, his claims must be submitted to a jury for consideration.
B. Perry’s Monell Claims Fail
The district court concluded that because it found that the
officers’ conduct did not result in a constitutional violation,
Monell liability could not attach. But, because we have found
that the claims against the individual defendants must be sub‐
mitted to a jury, we must address whether the same is true of
Perry’s Monell claims. A municipal entity may not be held lia‐
ble pursuant to § 1983 solely because it employed the consti‐
tutional tortfeasor. See Monell v. Depʹt of Soc. Servs. of City of
New York, 436 U.S. 658, 691 (1978) (holding that liability pur‐
suant to the doctrine of respondeat superior is unavailable un‐
der § 1983). Rather, a municipality can “be held liable under
§ 1983 only for its own violations of federal law.” Los Angeles
Cty., Cal. v. Humphries, 562 U.S. 29, 36 (2010) (citing Monell, 436
U.S. at 694). To invoke Monell liability, Perry must demon‐
strate that there was an “official policy, widespread custom,
or action by an official with policy‐making authority [that]
Nos. 16‐2353 and 16‐3130 35
was the ‘moving force’ behind his constitutional injury.” Dan‐
iel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016) (quoting Dixon
v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016)).
Perry asserts that Chief Flynn and the City of Milwaukee
are liable under Monell for two reasons. First, because the Po‐
lice Department and its policymakers failed to institute an in‐
ternal review of in‐custody deaths and to discipline officers
for their involvement in those incidents. Second, because the
Police Department had an unwritten policy of ignoring its de‐
tainees’ medical complaints, particularly complaints regard‐
ing trouble breathing. Perry contends that there was a de facto
policy of failing to care for the medical needs of prisoners in
the City’s custody.
But to support this assertion, Perry simply refers to the al‐
legations in his Amended Complaint that there were 12 in‐
custody deaths prior to the night he was taken into custody
and that no investigation followed those deaths. See, e.g., Ap‐
pellants’ Br. at 39 (“As set forth in Plaintiffs’ Complaint, twelve
individuals died in the City’s custody from March 7, 2000 for‐
ward.”). This is not sufficient to meet his burden at summary
judgment, as a plaintiff must do more than simply point to
the allegations in his complaint. See, e.g., Shermer v. Illinois
Depʹt of Transp., 171 F.3d 475, 478 (7th Cir. 1999) (noting that it
is well‐settled that “a non‐moving party may not rely solely
on the allegations in his complaint to defeat summary judg‐
ment.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
Further, it is also well‐established that Perry must do more
than simply rely upon his own experience to invoke Monell
liability. See Daniel, 833 F.3d at 734. Therefore, Perry’s Monell
claim based upon the City’s failure to adequately investigate
36 Nos. 16‐2353 and 16‐3130
in‐custody deaths and to discipline its officers for their in‐
volvement in these incidents fails, and summary judgment
was appropriate.
Second, Perry asserts that the City and Chief Flynn are li‐
able for enacting an unwritten policy of ignoring detainee’s
medical complaints. Perry contends that because Chief Flynn
testified that the phrase, “If you’re talking, you’re breathing,”
was an adage that was used during training, there was a de
facto policy of failing to provide medical attention to those
who complained of difficulty breathing. But, this argument
misconstrues the record evidence. The record indicates that
this adage was used as part of a training program that taught
City officers how to assess whether an individual had an
emergent medical need. There is no evidence that this was the
end of the inquiry, but rather the phrase was used as one as‐
pect of an overall inquiry into an individual’s health. While
here, Officer Kroes used the adage, as discussed above, in a
way that the jury might conclude was evidence of his objec‐
tively unreasonable response to Perry’s complaints, a reason‐
able jury could not conclude that this was a City policy or cus‐
tom sufficient to invoke Monell liability. Therefore, summary
judgment is appropriate on this aspect of Perry’s Monell claim
as well.
C. Perry’s State‐Law Claims Against the Nurses With‐
stand Summary Judgment, Not Non‐Medical De‐
fendants
The district court granted the defendants’ motion for sum‐
mary judgment on Perry’s negligence and wrongful death
claims finding that the defendants did not breach their duty
to treat Perry with ordinary care. But, for the same reasons
that we conclude that the district court erred in finding that
Nos. 16‐2353 and 16‐3130 37
the defendants acted reasonably in their interactions with
Perry, we must also find that it erred in concluding that there
was no breach of a duty. Nonetheless, we agree with parts of
the district court’s immunity analysis.
Under Wisconsin law, the doctrine of governmental im‐
munity is quite broad. As the Wisconsin Supreme Court
noted, it “provides that state officers and employees are im‐
mune from personal liability for injuries resulting from acts
performed within the scope of their official duties.” Pries v.
McMillon, 784 N.W.2d 648, 654 (Wis. 2010) (citing Kimps v. Hill,
546 N.W.2d 151, 156 (Wis. 1996)). There are four exceptions to
this broad doctrine: “(1) the performance of ministerial duties;
(2) the performance of duties with respect to a ‘known dan‐
ger;’ (3) actions involving medical discretion; and (4) actions
that are ‘malicious, willful, and intentional.’” Bicknese v. Su‐
tula, 660 N.W.2d 289, 296 (Wis. 2003).
Here, Perry asserts that governmental immunity does not
bar his state‐law claims because they involve the application
9
of medical discretion, an exception first recognized by the
Wisconsin Supreme Court in Scarpaci v. Milwaukee County, 292
N.W.2d 816 (Wis. 1980). In Scarpaci, the plaintiffs brought suit
against the medical examiner’s office after an autopsy was
performed on their deceased child against their express
wishes. The Wisconsin Supreme Court concluded that the de‐
cision to conduct an autopsy was a discretionary act, because
“the legislature envisioned the medical examiner as making
inquiry into the facts, applying the statutes to the facts, and
making a decision whether to proceed with an autopsy on the
9
Perry has not asserted that any other exception might apply to his
claims, and has therefore, waived any such argument.
38 Nos. 16‐2353 and 16‐3130
basis of the medical examinerʹs subjective evaluation of the
facts and the law.” Id. at 826. Nevertheless, the court con‐
cluded that the medical examiner was not entitled to govern‐
mental immunity for his actions in performing the autopsy.
While such actions, the court reasoned, were discretionary in
nature, that “discretion [was] medical, not governmental.” Id.
at 827; see also Gordon v. Milwaukee Cty., 370 N.W.2d 803, 806
(Wis. Ct. App. 1985) abrogated on other grounds by Kimps v. Hill,
523 N.W.2d 281 (Wis. Ct. App. 1994) (finding governmental
immunity inapplicable to a negligence claim based upon a
psychiatrist’s examination and diagnosis of the plaintiff pris‐
oner because these actions required the use of medical, not
governmental discretion).
We agree with Perry that governmental immunity does
not bar the claims against Nurses Virgo and Wenzel. While
these two defendants were acting within the scope of their
employment, they were, like the defendants in Scarpaci and
Gordon, applying their medical knowledge to the facts and cir‐
cumstances before them. Because they were exercising their
medical discretion, pursuant to Scarpaci, governmental im‐
munity does not act as a bar to suit.
However, we do find that governmental immunity bars
the state‐law claims against the non‐medical defendants. Un‐
der Wisconsin law, the doctrine is extremely broad. And, Wis‐
consin courts have been unwilling to extend the reasoning of
Scarpaci to defendants who are not medical professionals. See,
e.g., Kimps v. Hill, 523 N.W.2d 281, 285 (Wis. App. Ct. 1994)
(noting the limited reach of the medical discretion exception
and declining to extend its reasoning to another setting); see
also DeFever v. City of Waukesha, 743 N.W.2d 848, 853 (Wis.
App. Ct. 2007) (noting that Wisconsin courts have repeatedly
Nos. 16‐2353 and 16‐3130 39
refused to extend the Scarpaci exception beyond the medical
context). So, we must decline Perry’s invitation to expand
upon it. Even though we have grave concerns about the offic‐
ers’ actions on the night that Perry died, the state‐law claims
of negligence and wrongful death must be dismissed against
the non‐medical defendants as these defendants are immune
under Wisconsin law. Governmental immunity, as provided
under Wisconsin law, however, applies only to state‐law
claims. It is not applicable to Perry’s claims brought pursuant
to 42 U.S.C. § 1983. See Cody v. Dane Cty., 625 N.W.2d 630, 640
(Wis. App. Ct. 2001).
D. Sanctions Not Appropriately Granted
The district court concluded that sanctions were appropri‐
ate pursuant to 28 U.S.C. § 1927. The court came to this con‐
clusion for three reasons. First, because Perry’s counsel should
have known that his claims against the County were meritless
as he was never accepted into the County’s custody. Second,
because Perry pursued baseless claims against two defend‐
ants—Corrections Officers Douglas and Jeff—even though
these officers were only in the same room as Perry for less
than 30 seconds each. Third, the district court cited to Perry’s
counsel’s “repetitive, abusive and argumentative conduct”
during deposition discovery.
We review a district court’s decision to award sanctions for
the abuse of discretion. United States v. Rogers Cartage Co., 794
F.3d 854, 862 (7th Cir. 2015). Section 1927 permits a court to
enter sanctions against a lawyer who “so multiplies the pro‐
ceedings in any case unreasonably and vexatiously.” 28 U.S.C.
§ 1927. Sanctions awarded under § 1927 are to be paid by the
lawyer, who must ʺsatisfy personally the excess costs, ex‐
penses, and attorneysʹ fees reasonably incurred because of
40 Nos. 16‐2353 and 16‐3130
such conduct.” Id. A court may impose sanctions if the attor‐
ney “acted in an objectively unreasonable manner by engag‐
ing in a serious and studied disregard for the orderly process
of justice … or where a claim [is] without a plausible legal or
factual basis and lacking in justification.” Lightspeed Media
Corp. v. Smith, 761 F.3d 699, 708 (7th Cir. 2014) (quoting Walter
v. Fiorenzo, 840 F.2d 427, 433 (7th Cir. 1998) (internal quotation
mark omitted)). While an attorney’s subjective bad faith is suf‐
ficient to impose § 1927 sanctions, a court need not make such
a finding. Hunt v. Moore Bros., Inc., 861 F.3d 655, 659 (7th Cir.
2017). Rather, a finding of objective bad faith will support an
award of sanctions. Id. (quoting Boyer v. BNSF Ry. Co., 824 F.3d
694, 708 (7th Cir. 2016)).
Here, the district court, in large part, based its conclusion
that sanctions were appropriate on its finding that Perry was
never in the County’s custody. As we have discussed at length
above, the district court erred when in substituted the
County’s booking policy for the proper Fourth Amendment
seizure inquiry. Therefore, the district court abused its discre‐
tion when it determined that the claims against the County
were without a legal or factual basis.
But, we do agree that Perry’s claims against Officers Doug‐
las and Jeff were without a factual basis. Although Perry did
not oppose summary judgment with regards to Corrections
Officer Douglas, to this day he maintains a claim against Cor‐
rections Officer Jeff. These claims are without merit and Perry
was on notice of the baseless nature of his claims once he was
in receipt of the surveillance footage from the County. While
we vacate the sanctions award because of the district court’s
reliance upon an erroneous conclusion of law, we remand
with instructions to the district court to reconsider the award
Nos. 16‐2353 and 16‐3130 41
in light of the entirety of this opinion. It is within the district
court’s discretion to determine whether the failure to dismiss
these officers from the suit and/or counsel’s conduct during
discovery warrants an award of sanctions.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part and REVERSE
in part the district court’s grant of summary judgment to the
defendants. We further VACATE the district court’s order
awarding the County defendants sanctions and remand with
instruction to reconsider the award in light of this opinion.