Estate of Rice Ex Rel. Rice v. Correctional Medical Services

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-2804 & 10-2389

E STATE OF N ICHOLAS D. R ICE,
deceased, by: R ICK D. R ICE and
D IANE J. W ALDROP, co-personal
representatives,
Plaintiff-Appellant,
v.

C ORRECTIONAL M EDICAL
S ERVICES, a Missouri corporation, et al.,

Defendants-Appellees.

Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
Nos. 06 C 697 and 09 C 319—Robert L. Miller, Jr.,
and Rudy Lozano, Judges.

A RGUED D ECEMBER 3, 2010—D ECIDED M ARCH 20, 2012

Before F LAUM, R OVNER, and E VANSΠ, Circuit Judges.

Œ
Circuit Judge Evans died on August 10, 2011, and did not
participate 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. 09-2804 & 10-2389

R OVNER, Circuit Judge. Nicholas D. Rice died in the
Elkhart County Jail in December 2004, nearly fifteen
months after he was booked at the jail pending trial on a
charge of attempted bank robbery. Rice was known to
suffer from schizophrenia, and shortly before his death
a judge had found him incompetent to stand trial. Al-
though he was seen by mental health professionals
while he was being detained, Rice frequently refused to
take his prescribed medications, cooperate with medical
personnel at the jail, eat his meals, or bathe himself. He
was briefly hospitalized at psychiatric and other medical
facilities on several occasions during the period of his
confinement, and at the time of his death he was awaiting
placement at a state psychiatric facility pursuant to the
judge’s finding of incompetence. Rice died as a result of
psychogenic polydipsia (excessive water drinking), which
is a disorder known to manifest in a minority of persons
with schizophrenia. Following Rice’s death, his parents,
representing his estate (the “Estate”), filed suit in federal
court pursuant to 42 U.S.C. § 1983, alleging among other
things that jail officials and medical personnel had de-
prived Rice of due process by exhibiting deliberate indif-
ference to his declining mental and physical condition.
The district court entered summary judgment against the
Estate on its section 1983 claims, finding in part that
correctional and medical personnel had not consciously
disregarded Rice’s medical needs and that the ultimate
cause of his death was not reasonably foreseeable to
them. Estate of Rice ex rel. Rice v. Correctional Med. Servs.,
No. 06 C 697, Opinion & Order, 2009 WL 1748059 (N.D.
Ind. June 17, 2009) (Miller, J.). The Estate then filed a
Nos. 09-2804 & 10-2389 3

second federal suit, invoking the court’s diversity juris-
diction, in which it reasserted the state wrongful death
claims that the judge in the first suit had dismissed
without prejudice after disposing of the federal claims.
The judge in the second suit dismissed that case on
the basis of collateral estoppel, reasoning that his col-
league’s finding as to the foreseeability of the cause of
Rice’s death precluded recovery on any of the state
claims. Estate of Rice ex rel. Rice v. Correctional Med. Servs.,
No. 09 C 319, Order (N.D. Ind. May 17, 2010) (Lozano, J.)
(unpublished). The Estate appeals both judgments. On
review of the record, we conclude that a material dispute
of fact precludes summary judgment on one of the
Estate’s section 1983 claims: that his conditions of con-
finement were inhumane. We also conclude that the
district court erred in dismissing his state claims. We
therefore affirm in part and reverse in part.

I.
On March 5, 2003, Rice, then twenty years old, walked
into the KeyBank in Nappanee, Indiana, and announced
to a teller that he had a bomb that he would detonate if
he was not given money. Then, without explanation and
without having taken any money, Rice walked out of
the bank. He made his way back to his hometown of
Stevensville, Michigan, in a car he had stolen that morning
from a neighbor. As he drove back into Stevensville,
the owner of the car spotted Rice and summoned the
police. Rice was jailed in Berrien County, Michigan, on
a charge of auto theft.
4 Nos. 09-2804 & 10-2389

It soon became apparent to the Michigan authorities
that Rice had mental difficulties. Rice had begun to
exhibit mental problems while he was in high school,
and he was eventually diagnosed as suffering from undif-
ferentiated schizophrenia. Schizophrenia is a chronic
mental illness which interferes with a person’s ability
to accurately perceive what is going on around him, to
distinguish fact from fantasy, and to regulate his emo-
tions. Although Rice was prescribed medications for his
illness, he did not take them consistently and stopped
taking them altogether once he was no longer covered
by his parents’ health insurance. Not long after he was
jailed in Michigan, various physical and mental prob-
lems—including weight loss, unresponsiveness, and lack
of hygiene—resulted in Rice’s hospitalization, a finding
that he was not competent to stand trial, and eventually
his commitment to the Kalamazoo Psychiatric Hospital
for a period of nearly two months. The therapy and
medication that Rice received during his commitment
resulted in a marked improvement in his condition.
His mother would later testify that Rice was in the best
condition he had been in for quite some time. By the time
Rice was discharged from the psychiatric hospital in
late August 2003, Indiana authorities had identified him
as the suspect in the KeyBank robbery, and a bench
warrant was issued for his arrest. After the Michigan
charges against him were resolved, Rice was transferred
to the Elkhart County Jail in Indiana, where he was
booked on a charge of attempted robbery on September 8,
2003. His bail was set at $20,000.
Nos. 09-2804 & 10-2389 5

The Elkhart County Jail had an ongoing contract
with Correctional Medical Services (“CMS”) to provide
comprehensive health care services to inmates of the jail.
To serve the general medical needs of the jail’s inmate
population, CMS provided the jail with a staff which, in
2004, included the equivalent of approximately six full-
time licensed practical nurses, one full-time registered
nurse, one half-time social worker, and a physician who
served as the jail’s medical director. CMS in turn con-
tracted with Oaklawn Psychiatric Center in Goshen,
Indiana, to provide psychiatric services to jail inmates
as needed. Pursuant to that contract, mental health treat-
ment decisions were reserved to Oaklawn and one of
its physicians, Dr. Bryce B. Rohrer. Rohrer is board-
certified in family medicine rather than psychiatry, but
he has practiced family psychiatry for many years (his
specialty is drug and alcohol addiction), and by the time
of Rice’s detention he had been providing psychiatric
services to the jail for the previous ten years. Rohrer
generally spent one-half day per week at the jail.
The CMS medical personnel who performed a screening
upon Rice’s arrival at the jail had access to his medical
records and were aware of his psychiatric history and
the psychotropic medications he had been prescribed
for his schizophrenia. Dr. Rohrer met with Rice two
days after he was booked into the jail and wrote him a
prescription for Seroquel, an anti-psychotic medication
that he had been taking prior to his transfer from Michi-
gan. When Rohrer examined Rice several weeks later, Rice
had been placed in the jail’s “tank” because he was not
communicating. Rohrer’s notes indicate that Rice was not
taking his prescribed medication but was practicing self-
6 Nos. 09-2804 & 10-2389

care. Rohrer was not sure if he was eating. Rohrer con-
cluded that Rice’s behavior was likely explained by
psychosis, a traumatic event, or malingering (i.e., feigning
illness for secondary gain) and noted his intent to hos-
pitalize Rice at Oaklawn if further observation revealed
that Rice was not eating or was outwardly psychotic.
In late October, Rohrer petitioned an Indiana state
court to involuntarily commit Rice to a mental facility
for a period of seventy-two hours, explaining that Rice
was “refusing psychotropic medication and refusing to
eat, refusing to communicate most of [the] time, diagnosed
as schizophrenic.” R. 198-70 at 3. The court granted the
petition, and Rice was admitted to Oaklawn. He was
given an intramuscular injection of Haldol, a psycho-
tropic medication, upon his arrival at Oaklawn, but his
treating physician there, Dr. Salvador Ceniceros, who is
board-certified in both psychiatry and neurology, con-
cluded in short order that there was no probable cause
to believe that Rice met the criteria for involuntary com-
mitment or forced medication. Ceniceros would later
testify that Rice showed no signs of psychosis, answered
his questions plainly and coherently, interacted with
others appropriately, was eating and drinking, and ac-
cepted medication voluntarily. At Ceniceros’ instruction,
Rice was discharged back to the jail less than twenty-four
hours after he was admitted.1

1
Subsequently, in December 2003, Ceniceros was asked to
evaluate Rice’s competency to stand trial. He concluded that
Rice was competent.
Nos. 09-2804 & 10-2389 7

In the following months, Rice continued to exhibit the
sort of behavior at the jail which had led Rohrer to seek
his involuntary commitment to Oaklawn in October.
Rohrer’s notes from November 2003 and January 2004
indicated that although at times Rice was communicative
and appeared to be doing better, at other times he
was refusing to take his medication and uncommunica-
tive and that his psychotic disorder appeared to be wor-
sening.
On November 16, 2003, Rice struck his cellmate in the
eye, causing the cellmate to seek medical attention.
When Rice subsequently refused an instruction by the
correctional staff to step out of the cell, Officer Jennifer
Shelton directed her colleague, Jason Koontz, to spray
Rice’s face with pepper foam, and Rice was then placed
in a restraint chair. Nurses Cindy Lambright and Joy
Bell were present when Rice was pepper-sprayed, and
they helped rinse his face and eyes. Rice later refused
multiple invitations to leave the restraint chair and re-
mained there for a period of over eighteen hours. Ulti-
mately he was dragged from the chair and into a cell
by jail staff.
In mid-November, Rohrer ordered the nursing staff to
administer an intramuscular injection of Haldol to Rice
every four weeks provided that he did not object. One
such shot was given to Rice, in early December. Rice
subsequently asked Rohrer to put him back on Seroquel
instead, and Rohrer acceded. But in January 2004, Rohrer
noted that Rice was again uncommunicative and some-
times refused to take his medication. Rohrer increased
8 Nos. 09-2804 & 10-2389

Rice’s prescribed dosage of Seroquel and directed that
he be returned to Haldol injections if he refused to take
the Seroquel.
Rohrer did not see Rice from February 10—when
Rice was again refusing his medication, and Rohrer had
to visit Rice in his cell because Rice otherwise refused to
see Rohrer—until May 11, 2004. During that time, the
nursing staff saw him regularly and observed more of
the same behavior that Rohrer himself had documented
previously. Nurse Lambright noted in February that
Rice refused to take his medications or to wear clothing.
His continuing refusal to take medications became
a frequent refrain in the subsequent notations of the
jail’s medical staff.
By April, jail officials, in apparent recognition of the
particular challenges that Rice presented, were re-
questing that his condition and behavior be thoroughly
documented. That month, Captain Brad Rogers, the jail’s
commander, asked that he be updated on Rice’s status
at the jail. In response to that request, Nurse Rebecca
Hess, a regional manager for CMS who supervised
nurses at both the Elkhart County Jail and other facilities,
wrote a one-page memorandum to Rogers and Lieutenant
Fred Call, the jail’s warden, concisely summarizing
Rice’s history at the jail. Hess noted that efforts had
been made to monitor Rice’s weight beginning in Decem-
ber 2003 due to his periodic refusal to eat. She added
that there had been no significant changes in Rice’s
weight since that time, although he frequently refused
to be weighed. Rice also continued to refuse his medica-
Nos. 09-2804 & 10-2389 9

tions and often refused to see Rohrer. In addition, he
refused to leave his cell for visits with family or with
his attorney. On April 15, Call emailed a memorandum
to the jail’s supervisory staff directing that all out-of-the
ordinary occurrences involving Rice be videotaped and
or reported, both to document Rice’s behavior on these
occasions and to assist his attorney in taking appropri-
ate action. “I’m attempting to work with the public de-
fender office to show this person m[a]y need . . . help. . . .
So I would appreciate your reports. The sooner we
can get this individual help the better off for all of us.”
R. 198-80 at 20. As a result of that directive, the record
includes video recordings of several instances in the
ensuing months in which jail staff forcibly removed
Rice from his cell and showered him.
By the end of April, Rice’s condition appears to have
deteriorated further. In an April 30 note, Lambright
reported that officers had to physically remove Rice
from his cell during a “shake down” when he refused to
leave the cell on his own. Lambright noted that Rice
was unable to stand, that his entire body was jaundiced,
that he had a large, three-inch area of dark skin over
his coccyx, and that when officers picked him up, dead
skin cells sloughed off his body in large numbers. He
refused to speak. Rice repeatedly refused to see his
parents when they came to the jail.
Dr. Paul J. Yoder, a psychologist at Oaklawn, evaluated
Rice on April 28, 2004, at the request of Rice’s attorney.
Based on Rice’s catatonic and unresponsive behavior,
Rice’s counsel was concerned that he was not able to
10 Nos. 09-2804 & 10-2389

assist in his defense, notwithstanding the prior findings
by two psychiatrists (including Ceniceros) that Rice was
competent to stand trial. Rice was largely unresponsive
when Yoder interviewed him. It was clear to Yoder
that Rice suffered from schizophrenia, and that Rice’s
functioning improved when he took his medications
and worsened when he did not. In his report of May 4,
2004, Yoder considered whether the catatonia Rice dis-
played might be due to malingering rather than to his
mental illness. There were reports from the jail sug-
gesting that Rice altered his behavior depending on
whether or not he was being observed. Rice might be
feigning catatonia in the hope that he could avoid trial or
be found not guilty by reason of insanity, Yoder pos-
ited. “However, given Nicholas’ documented history
of poor functioning and poor insight when not being
treated, this seems very unlikely as a motivating factor
for his current behavior.” R. 198-127 at 7-8. Yoder consid-
ered other potential motives for Rice to pretend he was
more ill than he was, but ultimately was skeptical of
the notion that Rice was intentionally and genuinely
malingering. He pointed out that the overt symptoms
of schizophrenia can wax and wane even when one is
not being treated. “Regardless [of] [Rice’s] actual motive
and whether or not he is aware of it, it does not appear
that he is engaged in this type of malingering behavior
when his illness is being effectively treated. As a result,
it is my opinion that the malingering is itself the product
of his mental illness.” R. 198-127 at 8. Yoder therefore
concluded that Rice was not competent to assist his at-
torney with his defense. “The record is clear that Nicholas
Nos. 09-2804 & 10-2389 11

is severely mentally ill.” R. 198-127 at 8. Yoder recom-
mended that the court consider ordering Rice’s com-
pliance with psychiatric treatment (i.e., that he be
forcibly medicated), and noted that given how well
Rice responded to involuntary treatment in Michigan,
it was likely that Rice’s symptoms would remit within
four to six weeks. “At that point it should be possible
to more clearly distinguish between symptoms of schizo-
phrenia and ongoing malingering.” R. 198-127 at 8.
On May 11, Rohrer concluded that Rice should again
be committed to a psychiatric facility for observation
and evaluation for the possibility of involuntary medica-
tion. Rohrer’s notes indicate that Rice was refusing to see
him, refusing his medications, did not communicate,
did not practice self-care, ate only junk food in lieu of
regular meals, and appeared to be developing bedsores.
In his petition to the court for an order of involuntary
commitment and forced medication, Rohrer noted that
Rice was “psychotic” and “unable to perform self-care.”
R. 192-9 at 47. The court granted the petition.
Rice was transferred to Oaklawn that same day.
On arrival at the facility, he was catatonic and had to be
lifted out of the transport van. However, once again
his behavior appears to have changed dramatically fol-
lowing his arrival at the hospital. Ceniceros noted that
Rice was cooperating, showering, eating, drinking and
agreeing to take his prescribed medication. Ceniceros
surmised that Rice was malingering in order to get out
of jail, and he again concluded that there was “no prob-
able cause to believe that [Rice] meets the criteria for
12 Nos. 09-2804 & 10-2389

involuntary commitment.” R. 192-9 at 50. He diag-
nosed Rice with undifferentiated schizophrenia and/or
malingering, and for the second time discharged Rice
back to the jail less than twenty-four hours after he
was committed. His discharge notes concluded with the
following observations: “This morning [Rice] is alert,
cooperative, and oriented x 3. He denies any current
suicidal or homicidal ideation. Thoughts are linear and
goal directed. . . . He also denies hallucination in all
five senses. There is no looseness of association or flight
of ideas noted. Intelligence appears to be average based
on fund of knowledge and vocabulary; judgment and
insight appear [to be] intact. . . .” R. 198-145 at 16.
Shortly after his return to the jail, Rice was placed in
the administrative segregation unit, known as Ward
One, where he could be observed more closely. Previously
Rice had been housed in the medical ward as well as
other areas of the jail, but according to Rogers, medical
personnel at the jail had asked that Rice not be returned
to the medical ward given his poor hygiene and con-
duct. In Ward One, he was assigned to cell number 5A,
which we are told was the cell most easily viewed from
the first-floor control room across from Ward One.
Because the cells in Ward One were single-occupancy
units, Rice had no cellmate. He was allowed out of the
cell one hour per day. Rice remained in the administra-
tive segregation unit until his death seven months later.
In June 2004, an Indiana circuit court judge found that
Rice was competent to stand trial on the bank robbery
charge. At the invitation of and with the agreement of
Nos. 09-2804 & 10-2389 13

the parties, the judge made that finding without a
hearing and based solely on his review of the written
reports of the three professionals (including Ceniceros
and Yoder) who had evaluated Rice.
After examining all reports the Court finds the De-
fendant to be competent to assist his counsel and
further notes that the Defendant was able to con-
verse with the presiding judge in open court and
express himself and answer questions appropriately.
The Court further notes that Paul J. Yoder’s written
report indicates there is some reasonable belief
that this Defendant may be faking his catatonic state
since he was reported to sleep on a top bunk and
the officers did not put him there. Additionally, he
has been seen out of his cell on a number [of] occasions
and as soon as he spots an officer he freezes and
becomes unresponsive. The Court notes that he was
responsive in open court and appeared to be well-
oriented on the date of hearing herein (June 10, 2004).
R. 198-51 at 2-3. The court set Rice’s case for trial on
December 6, 2004.
Despite the competency finding, Rice continued to
exhibit abnormal behavior at the jail:
– Captain Rogers would later testify that by June,
“I think we were all concerned about his mental
capacity . . . .” R. 198-20 at 18, Rogers Dep. 109.
– On June 25, 2004, another inmate assaulted Rice in
his cell by poking him in the groin with a broomstick
through the bars of his cell door. Rather than move
14 Nos. 09-2804 & 10-2389

in order to avoid the broomstick, Rice simply stood
in place, catatonic, while he was assaulted. The attack
left visible welts on his back, buttocks, and side.
– On August 2, 2004, Rice cut his neck with a dispos-
able razor from which he had bent or broken off the
plastic guard in order to expose a portion of the
blade. Lambright, on being summoned to Rice’s cell,
found him holding a towel over the wound. The one-
inch laceration, although located over his carotid
artery, was superficial. Rice later told Nurse
Sharrone Jones, who became the jail’s charge nurse
in 2004, “I just hurt myself,” R. 198-37 at 26, and
when asked why by Nurse Lambright, he remarked
“I just felt like it,” R. 198-14 at 11. He was taken to
Goshen General Hospital for treatment and the
wound was sutured. Rice denied any effort to
commit suicide, and the physician who treated him
in the hospital’s emergency room, Dr. David E. Van
Ryn, agreed that he was not genuinely suicidal.
Upon being returned to the jail, Rice was placed in
a restraint chair for a period of eighteen hours, evi-
dently to ensure that he would not harm himself
again. When Rohrer met with Rice the following
day, Rice told him, “I won’t talk to you. I’m not psy-
cho.” R. 198-37 at 27. Rohrer indicated in his notes
that he thought Rice might be malingering. After
investigating the incident, Nurse Hess concluded
that Rice had not attempted to kill himself. Given
that conclusion, neither CMS nor the jail followed
their suicide prevention policies by placing Rice
under heightened observation.
Nos. 09-2804 & 10-2389 15

– Shortly after this incident, Rice experienced a dizzy
spell and hit his head on his cell door, resulting in
a one-inch laceration between his eyes. CMS per-
sonnel treated the wound, but other than lab work,
no additional action was taken.
– Rice’s abysmal lack of hygiene continued. On
August 18, 2004, Lieutenant Call emailed several jail
staff members indicating that “[i]t’s time for Mr. Rice
to get another shower and have his room cleaned.” R.
198-122 at 2. When correctional officer Stephanie
Snyder emailed later that day to report that “[i]t
was a very dirty job but we accomplished it,” R. 198-
122 at 2, Captain Rogers replied to thank the
officers involved. “A person has to feel some
empathy toward someone like Nick Rice, who has to
be in such a pathetic state of mind to allow himself
to get into such a dirty physical state and to behave
as he does.” R. 198-122 at 2.
During this time period, Rice was not eating regular
meals. In July 2004, Rogers emailed a memorandum to
the jail’s supervisory officers instructing them to be
more proactive in ensuring that food was made avail-
able to inmates like Rice (whom he cited by name) who
exhibited a reluctance to eat. He admonished staff not
to construe an inmate’s silence at meal distribution
times as a refusal to eat. He also directed that food be
left inside rather than outside of an inmate’s cell, noting
that “[i]f the meal is left inside, Rice will typically eat
it.” R. 98-118 at 2.
By the Fall of 2004, however, Rice’s weight had
dropped significantly. A video of him being showered
16 Nos. 09-2804 & 10-2389

on September 30 reveals him to have been quite thin, if not
gaunt. As of the beginning of October, Rice, who was six
feet, two inches tall, weighed just 132 pounds, some fifty
pounds less than he did at the time of his admission in
2003. A nurse noted the presence of a sore or sores on
his hips. On October 5, Rohrer noted that Rice had lost
a significant amount of weight, was still refusing to eat
or to take medication, appeared to be exhibiting the
early onset of bedsores, and required medical attention.
For the third and final time, Rohrer sought Rice’s in-
voluntary commitment to an inpatient psychiatric
facility for additional care. In support of the petition,
Rohrer wrote that “[Rice] is seriously medically [and]
psychiatr[ically] ill and needs intensive medical care
as well as [the] availability of psychiatric care.” R. 192-9
at 56. “Oaklawn Hosp[ital] would not be able to pro-
vide the intensive medical care,” he added. R. 192-9 at
56. Rohrer explained that in addition to having
serious psychiatric difficulties, Rice was “dying from
malnourishment.” R. 192-9 at 54. The court granted an-
other seventy-two hour commitment. The order iden-
tified four hospitals at which Rice could be placed, in
the discretion of the Sheriff: Oaklawn, Goshen Gen-
eral Hospital, Bowen Center, and Elkhart General
Hospital for Behavioral Medicine (“Elkhart General”).
R. 192-9 at 57.
Rohrer had requested that Rice be committed to a
hospital where psychiatric care was available, and it
was Rohrer’s intent that he be taken to Elkhart General,
which had an inpatient psychiatric unit. However, that
Nos. 09-2804 & 10-2389 17

hospital refused Rice’s admission in the mistaken
belief that it did not have a contract with the jail.
Instead, Rice was taken to Goshen General Hospital,
which unlike Elkhart General had no psychiatric
unit. He was admitted and observed by Dr. Allison P.
Mathew, who found him to be suffering from symp-
toms of dehydration and mild malnutrition. After rehy-
drating Rice and encouraging him to eat, Dr. Mathew
concluded that he had been medically stabilized. She
assumed that upon discharge, he would be “sent back to
Oaklawn for further psychiatric evaluation and manage-
ment.” R. 198-45 at 27. But when she consulted by tele-
phone the following morning with Dr. Ceniceros at
Oaklawn, he opined in light of what Dr. Mathew told
him that Rice did not pose an imminent danger to
himself or others. According to Mathew, Ceniceros
added that he would not accept Rice for admission
to Oaklawn in view of his previous conclusion that
Rice was malingering, although Ceniceros denies that
he said this. Dr. Mathew discharged Rice back to the
jail on October 6 with instructions that he be encouraged
to eat, given high protein shakes if he would take them,
continue on his current medications, and follow up
with the Oaklawn psychiatrist (presumably Rohrer)
within a week.
Upon Rice’s return to the jail, CMS staff made various
efforts to improve Rice’s nutrition and more generally to
convince him to eat more food. Nurse Jones instructed
the jail’s food service to provide Rice with high-protein
Resource® Health Shakes twice daily, along with two
milks at all meals and extra juice for breakfast. When
18 Nos. 09-2804 & 10-2389

the jail’s medical director, Dr. Alan Bierlein, assessed
Rice on October 25, he issued a second order that Rice be
provided with extra food. It appears that there was
some delay in obtaining high-protein shakes and that
Rice initially was provided with Carnation ® Instant
Breakfast drinks in lieu of the prescribed protein shakes,
but otherwise he was provided with extra food by the
jail’s food service as instructed. In addition, there is
evidence that CMS nurses saw Rice several times daily
following his return from the hospital. As they had
since his weight loss was first noted, the nurses
brought him extra snacks, encouraged him to eat, and
urged him to take his medications. These efforts met
with mixed results. Rice continued to refuse many of
his meals. On the other hand, he frequently did eat his
breakfast, and the record indicates that Rice did not lose
additional weight following his return to the jail. And
in marked contrast to his typically reclusive and unre-
sponsive behavior, Rice just three days before his death
walked out of his cell and showered himself when
invited to do so.
Other problems persisted, however. Rice regularly
refused to take his medication. He was often uncom-
municative. He typically did not bathe himself or other-
wise attend to his own hygiene. Joshua Shaw, an inmate
who was housed in the cell next to Rice, indicated that
Rice was “always naked, he had unbelievable odor due
to his total lack of hygiene, feces on his body, urine
through out his cell, also rotting, uneaten food strewn
through out his cell.” According to Shaw, Rice rarely
spoke, other than to mumble “go away, go away, go
away, go away.” R. 277-105 at 3.
Nos. 09-2804 & 10-2389 19

When Rohrer saw Rice on November 9, 2004, he wrote:
“Refuses to communicate and closes his eyes. Is observed
at times getting up [and] eating [and] can run through
[the] unit (did this recently), but refuses all help [and]
has to practically be carried to get shower by staff.
Uncompt. caked feces, refusing all meds. ” R. 198-37 at
34. Rohrer ordered the nurses to discontinue Rice’s anti-
psychotic medications (which he was not taking) and to
ask him weekly whether he would resume taking
them. Rohrer planned to see him again in a month.
On December 6, 2004, the judge presiding over Rice’s
criminal case reversed his earlier competency assessment
and found Rice incompetent to stand trial. The judge
committed Rice to the custody of the Indiana Division
of Mental Health and ordered Sheriff Michael E. Books
to deliver Rice to a facility designated by the Division.
The Division in turn designated the Logansport State
Hospital, a psychiatric facility, which accepted Rice for
admission. However, because there was no bed available
at that time, Rice remained at the jail until space
opened up. Unfortunately, Rice died before that happened.
Late in the evening of December 17, 2004, inmate
Shaw heard Rice gulping water and vomiting in his cell.
In the ensuing hours, Shaw and other inmates in the
administrative segregation unit “mule-kicked” their cell
doors in an effort to get someone’s attention, but
according to Shaw’s account, no one ever responded.
Jail policy required the guards to conduct hourly checks
of all inmates in the administrative segregation unit,
but crediting Shaw’s account, one may infer that neither
20 Nos. 09-2804 & 10-2389

a guard nor anyone else on duty in the overnight hours
ever checked on Rice.
At approximately 4:30 a.m. on December 18. Rice was
found dead in his cell. A frothy pink discharge was
noted near his mouth. Autopsies would later reveal
that Rice died of acute cardiac arrhythmia triggered by
a lethal decline in the sodium level in his blood, which
was in turn caused by his excessive consumption of
water in the hours prior to his death.
Psychogenic polydipsia, a disorder characterized by
excessive thirst and compulsive water drinking, is a
poorly understood phenomenon that occurs in between
six and twenty percent of patients with psychiatric dis-
orders, and most commonly is seen in patients with
schizophrenia. Brian Dundas, M.D., Melissa Harris, B.S.,
and Meera Narasimhan, M.D., Psychogenic Polydipsia
Review: Etiology, Differential, and Treatment, 9 C URRENT
P SYCHIATRY R EPORTS 236, 236 (2007). It is undisputed
in this case that the disorder can occur both in indivi-
duals who are taking medication for their schizophrenia
and those who are not, and that unless an individual
has previously experienced a bout of psychogenic
polydipsia, there are no known warning signs that
enable medical professionals to predict whether or when
he or she will ever suffer from this disorder. How great
the risk is that a schizophrenic individual suffering
from psychogenic polydipsia will in turn experience
hyponatremia, sometimes described colloquially as
“water toxicity,” is a matter of dispute on the record in
this case. Dr. John Pless, a forensic pathologist who
Nos. 09-2804 & 10-2389 21

offered evidence on behalf of the defense, wrote in his
report that inappropriate hormone secretion, which
causes a compulsive water drinker to retain water and
excrete electrolytes, thus causing one’s blood sodium
level to drop, is “commonly seen” in people with schizo-
phrenia. R. 169-5 at 2. Although he tried to withdraw
that statement in a subsequent affidavit (in which he
asserted that the phenomenon is “exceedingly rare,”
R. 281-10 at 3 ¶ 20, and that the odds of death due
to excessive water intake were one in a million, R. 281-10
at 3 ¶ 21), the district court excluded the retraction
from evidence. Our research indicates that of all those
individuals who do experience psychogenic polydipsia,
only ten to twenty percent experience hyponatremia as
a result of their compulsive water drinking. Psychogenic
Polydipsia Review, 9 C URRENT P SYCHIATRY R EPORTS at 236.
The autopsies also support the conclusion that Rice
was to some degree underweight and malnourished (the
parties’ experts differ as to the degree) at the time of his
death. Defense expert Dr. Daniel Scherb indicated that
Rice’s recorded weight at death was seventy-five to
eighty percent of what would be ideal. Although at least
one expert for the Estate opined that malnutrition
played a role in Rice’s death, others found no evidence
that this was true, and based on the arguments that
the parties made on summary judgment, the district court
found there to be no dispute that Rice died as a result
of compulsive water drinking rather than malnutrition.
2009 WL 1748059, at *5 & n.5. The Estate does not
quarrel with this finding on appeal.
22 Nos. 09-2804 & 10-2389

The Estate brought this suit under 42 U.S.C. § 1983
against jail officials (in both their official and individual
capacities), jail guards, CMS and Oaklawn, CMS nurses
who worked at the Elkhart County jail, and Drs. Rohrer
and Ceniceros, among others. The Estate contended that
jail officials and staff had subjected Rice to inhumane
conditions of confinement, used excessive force against
him, failed to protect him from harm inflicted by other
inmates, employed policies and customs that reflected
institutional indifference to the constitutional right of
a mentally ill inmate to adequate medical (including
psychiatric) care and protection from self-inflicted harm,
and individually displayed deliberate indifference to
his well-being. The Estate alleged that CMS and Oak-
lawn also followed policies and customs that reflected
deliberate indifference to the plight of mentally ill
inmates who lack the ability to care for themselves.
The nurses employed by CMS to care for inmates at the
jail were alleged to have manifested deliberate indif-
ference to Rice’s declining health and self-destructive
tendencies. The Estate charged Drs. Rohrer and Ceniceros
with deliberate indifference to Rice’s need for more
intensive and proactive psychiatric treatment than he
could obtain at the jail. In addition to the federal claims,
the Estate asserted wrongful death claims under
Indiana law against all defendants.
Following two years of extensive discovery, the de-
fendants moved for summary judgment. Judge Miller
granted their motions as to each of the section 1983
claims. We shall discuss the particular allegations under-
lying these claims, and the grounds on which the court
Nos. 09-2804 & 10-2389 23

entered summary judgment, as we address each claim
in turn below. As we have noted, the court also relin-
quished jurisdiction over the wrongful death claims
premised on state law. When the Estate subsequently re-
filed the wrongful death claims—now limited to the
CMS defendants alone—in federal court, Judge Lozano
dismissed them on the basis of Judge Miller’s determina-
tion that the particular cause of Rice’s death was not
reasonably foreseeable to the defendants.

II.
A. C ONDITIONS OF C ONFINEMENT
The Estate contends that owing to the deliberate indif-
ference of jail officials and staff, from Sheriff Books on
down to the guards, Rice’s conditions of confinement
were inhumane. In particular, the Estate alleges that his
cell was often filthy and unsanitary, that uneaten food
was left to rot there, that his skin was sometimes caked
with his own feces, that he had an extremely foul body
odor owing to the long periods of time during which
he went unbathed, and that he either developed or
was on the verge of developing bedsores on multiple
occasions (although apparently these were healing at the
time of his death). Although there may be unresolved
questions as to how often and for how long these condi-
tions occurred, there is no genuine dispute that they did
in fact occur. They are documented not only in the dec-
laration from inmate Joshua Shaw, who was housed in
the administrative segregation unit in the cell next to
Rice’s, but also in various notations and memoranda
24 Nos. 09-2804 & 10-2389

written by Dr. Rohrer, the nursing staff, and jail
officials, and to some extent in the video recordings of
the instances in 2004 in which Rice was removed from
his cell and showered by jail staff. Nor is there any
mystery as to why these conditions occurred: Rice
typically refused to shower or perform any sort of self-
care whatsoever, left much of the food delivered to his
cell untouched, and lay naked and unmoving on his bunk
for most of the time. The record (including the videos)
reveals that the jail did intervene on occasion to clean
both Rice and his cell (there is some evidence that Rice
was eventually showered on a weekly basis, although
neither the jail’s shower log nor the videos confirm
this), but the gist of the Estate’s claim is that there were
significant periods of time during which the jail’s staff
members simply turned their back on the condition of
Rice’s person and cell, knowing that he was living in
his own filth.
Incarcerated persons are entitled to confinement under
humane conditions which provide for their “basic human
needs.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct.
2392, 2399 (1981); see also Farmer v. Brennan, 511 U.S. 825,
832, 114 S. Ct. 1970, 1976 (1994); Helling v. McKinney, 509
U.S. 25, 33, 113 S. Ct. 2475, 2480-81 (1993); Gillis v. Litscher,
468 F.3d 488, 493 (7th Cir. 2006) (prison has duty to pro-
vide, inter alia, adequate sanitation and hygienic materi-
als); Board v. Farnham, 394 F.3d 469, 482-83 (7th Cir. 2005)
(personal hygiene items). Because Rice was a pretrial
detainee, it is the due process clause of the Fourteenth
Amendment rather than the Eighth Amendment’s pro-
scription against cruel and unusual punishment which
Nos. 09-2804 & 10-2389 25

is the source of this right. See Bell v. Wolfish, 441 U.S.
520, 535-37, 99 S. Ct. 1861, 1872-73 (1979). How-
ever, courts still look to Eighth Amendment case law
in addressing the claims of pretrial detainees, given that
the protections of the Fourteenth Amendment’s due
process clause are at least as broad as those that the
Eighth Amendment affords to convicted prisoners, City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct.
2979, 2983 (1983); Brown v. Budz, 398 F.3d 904, 910 (7th
Cir. 2005); Collignon v. Milwaukee County, 163 F.3d 982, 988
(7th Cir. 1998), and the Supreme Court has not yet deter-
mined just how much additional protection the Four-
teenth Amendment gives to pretrial detainees. Woloszyn
v. County of Lawrence, 396 F.3d 314, 319 n.5 (3d Cir.
2005); Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259
n.1 (7th Cir. 1996); see also Weiss v. Cooley, 230 F.3d 1027,
1032 (7th Cir. 2000) (“there is little practical difference
between the two standards”). A claim that the condi-
tions of an inmate’s confinement were constitutionally
inadequate proceeds through a two-step inquiry. We
consider first whether the adverse conditions com-
plained of were “sufficiently serious,” such that the
acts or omissions of prison officials giving rise to these
conditions deprived the prisoner of a “minimal civilized
measure of life’s necessities.” Farmer, 511 U.S. at 834, 114
S. Ct. at 1977; Chapman, 452 U.S. at 347, 101 S. Ct. at 2399.
If the answer to that question is yes, we consider
whether prison officials were deliberately indifferent to
the adverse conditions. Farmer, 511 U.S. at 834, 114 S.
Ct. at 1977; Wilson v. Seiter, 501 U.S. 294, 302-04, 111 S. Ct.
2321, 2326-27 (1991). An official is deliberately indif-
26 Nos. 09-2804 & 10-2389

ferent when he is subjectively aware of the condition or
danger complained of, but consciously disregards it.
Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; Minix v. Canarecci,
597 F.3d 824, 831 (7th Cir. 2010); Sanville v. McCaughtry,
266 F.3d 724, 734 (7th Cir. 2001); see also Connick v. Thomp-
son, 131 S. Ct. 1350, 1360 (2011).
The district court disposed of this claim largely on
the ground that Rice himself created the unsanitary
conditions. The jail did not prevent Rice from showering
or keeping his cell clean and, on occasion, showered
him and cleaned out his cell for him. In the court’s
view, this is what distinguished the instant case from
Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (per
curiam), in which we held that assigning an inmate to a
cell in which, inter alia, feces and blood covered the
wall, presented a triable issue of fact as to whether he
was deliberately deprived of his Eighth Amendment
right to incarceration in humane conditions. Here, by
contrast, “[t]he conditions Mr. Rice endured were self-
inflicted and don’t give rise to a claim of deliberate indif-
ference.” 2009 WL 1748059, at *11 (citing Isby v. Clark,
100 F.3d 502, 505-06 (7th Cir. 1996) (noting that if the
inmate is the cause of the conditions of which he com-
plains, his Eighth Amendment claim is tenuous)). The
court did acknowledge that “Mr. Rice’s behavior was
driven by his mental illness,” but chose to account for
that factor in considering his need for mental health
treatment rather than whether jail officials were deliber-
ately indifferent to the conditions of his confinement. Id.
The court also added, somewhat more cryptically, that
“[u]nder the circumstances of this case, Mr. Rice’s unsani-
Nos. 09-2804 & 10-2389 27

tary condition wasn’t sufficiently serious to constitute
a constitutional violation. Prison conditions may be
harsh and uncomfortable without violating the Eighth
Amendment’s prohibition against cruel and unusual
punishment.” Id.
We conclude, contrary to the district court, that whether
jail officials were deliberately indifferent to Rice’s condi-
tions of confinement presents a material dispute of fact
that the factfinder must resolve at trial. That Rice
himself created the unsanitary conditions of which his
Estate complains certainly is a fact relevant to this claim,
as our decision in Isby makes clear. 100 F.3d at 505-06.
But given Rice’s mental condition, it by no means fore-
closes the claim, as the district court appears to have
assumed. As we noted in Freeman v. Berge, 441 F.3d 543,
546 (7th Cir. 2006), and Hall v. Ryan, 957 F.2d 402, 406
(7th Cir. 1992), prison officials have an obligation to
intervene when they know a prisoner suffers from self-
destructive tendencies. There is evidence that Rice
may have been malingering, and it is possible that a
factfinder might conclude that Rice’s failure of self-care
was knowing, voluntary, and deliberate rather than the
product of his mental illness. But there is also a wealth
of evidence in the record that would support a contrary
finding that Rice truly became incapable of caring
for himself as a result of his schizophrenia and that jail
officials were well aware of this. In light of that evidence,
a factfinder reasonably could conclude that Rice was
not responsible for the conditions of his cell and his
person, and that prison officials, who were aware of
these conditions and of Rice’s illness, were responsible
28 Nos. 09-2804 & 10-2389

for them in the sense that they did not make more consci-
entious efforts to bathe Rice and to clean his cell. No
doubt Rice’s behavior placed the jail in a difficult posi-
tion; and a factfinder might conclude that even if jail
officials could have done more, they were not delib-
erately indifferent to the cleanliness of Rice’s person
and cell. For example, the record does confirm that jail
staff did shower Rice and clean out his cell on multiple
occasions. However, in view of evidence suggesting
that uneaten food was allowed to accumulate in Rice’s
cell, that he went for long periods without being
showered, and that the stench of his cell and his person
were overwhelming, this claim cannot be resolved on
summary judgment.
For the same reasons, we cannot sustain the district
court’s alternative conclusion that the conditions of
Rice’s confinement were not sufficiently serious to sup-
port his Fourteenth Amendment claim. Perhaps a fact-
finder could reach that conclusion. As the district court
noted, prison conditions may be uncomfortable, even
harsh, without being inhumane. See Farmer, 511 U.S. at
832, 114 S. Ct. at 1976. But on this record, granting
the Estate the benefit of all inferences to which it is
entitled on summary judgment, a factfinder reasonably
could conclude that the conditions of Rice’s confinement
exceeded mere discomfort and were constitutionally
unacceptable. See, e.g., Gillis, 468 F.3d at 493-94 (evidence
that prisoner was stripped naked and placed in cell
without, inter alia, adequate sanitation sufficient to sur-
vive summary judgment); Vinning-El v. Long, supra, 482
F.3d at 924 (holding defendants were not entitled to
qualified immunity on Eighth Amendment claim that
Nos. 09-2804 & 10-2389 29

inmate was subjected to unsanitary and otherwise inhu-
mane confinement for period of three to six days) (coll.
cases).

B. A DMINISTRATIVE S EGREGATION
The Estate has a separate conditions-of-confinement
claim relating to Rice’s prolonged assignment to Ward
One, the administrative segregation unit of the jail. The
record indicates that Rice was housed in that unit
for approximately seven months, from mid-May, 2004,
until his death the following December. Ostensibly, he was
assigned to that unit so that he could be more readily
monitored and because his behavior made his assign-
ment elsewhere in the jail problematic. (None of the
briefs in this case, unfortunately, discuss with any par-
ticularity the nature of this jail’s administrative segrega-
tion unit and what types of inmates were housed
there.) One of the Estate’s experts, Dr. Joe Goldenson,
opined that Rice should have been in placed in the jail’s
medical ward, where he had been placed on previous
occasions, instead of administrative segregation, be-
cause “[i]t is a well established fact that individuals
with psychiatric problems decompensate when they are
in extreme isolation.” R. 157-2 at 18 ¶ 7.
We may make short work of this claim because, as the
district court noted, the Estate has provided “little sup-
port” for it. 2009 WL 1748059, at *12. Dr. Goldenson’s
analysis certainly suggests that a prolonged placement
in segregation might have adverse effects on someone
30 Nos. 09-2804 & 10-2389

in Rice’s condition; and our own decision in Walker v.
Shansky, 28 F.3d 666, 673 (7th Cir. 1994), recognizes
that prolonged confinement in administrative segrega-
tion may constitute a violation of the Eighth Amend-
ment (and therefore the Fourteenth), depending on the
duration and nature of the segregation and whether
there were feasible alternatives to that confinement. (We
note, however, that the claim in Walker also included
allegations that the inmate had been denied water for
periods of up to one week, had been given inadequate
time to exercise, and had been subject to physical
abuse.) But the Estate has not discussed in any detail
what alternative placements were available to the jail
nor, more importantly, has it documented the differ-
ences those placements would have made in terms of
Rice’s social isolation. We take it as a given that the
Estate does not believe he should have been placed in
the general population of the jail, as its other claims
are premised on the notion that Rice should have been
monitored more rather than less closely than he
was—and it is undisputed that he was placed in adminis-
trative segregation for that very purpose. Rice had been
placed in the medical ward on prior occasions, and pre-
sumably had he been assigned to that ward rather than
to administrative segregation he would have received
as much if not more medical attention than he did in
segregation. But the record suggests that Rice was not
returned to the medical ward at the request of the
jail’s medical staff. It also indicates that Rice had
daily contact with medical personnel in administrative
segregation. More to the point, the Estate does not ex-
Nos. 09-2804 & 10-2389 31

plain why placement in the medical ward or any other
unit of the jail would have reduced the likelihood of
decompensation due to isolation. All we know is that
Rice had one hour each day to mingle with other
prisoners while he was housed in administrative seg-
regation (which the record indicates he often declined);
we do not know what additional opportunities for
social interaction he would have had in other feasible
placements within the jail. It is not too much to expect
the Estate’s lawyers, when complaining about the debil-
itating effects of the jail’s housing decisions, to identify
feasible alternatives and to tender evidence supporting
the contention that Rice likely would have fared better
in one of those alternative placements. This they have
not done.

C. E XCESSIVE F ORCE
As we noted in our factual summary, on November 16,
2003, Rice struck his cellmate in the eye. When correct-
ional officers ordered him out of the cell, he did not
comply and remained standing in his cell. Officer Koontz,
at the direction of Officer Shelton, sprayed pepper foam
into Rice’s face in an effort to secure Rice’s compliance
with their orders. Rice was then placed in a restraint
chair. Nursing staff helped rinse the pepper foam
from Rice’s eyes. After some period of time, jail staff
attempted to release Rice from the restraint chair, but
Rice was unwilling to leave the chair and ultimately
remained there for a total of eighteen hours. The Estate
contends that the use of the pepper foam, along with
32 Nos. 09-2804 & 10-2389

his prolonged confinement in the restraint chair,
amounted to excessive force.2
The use of force qualifies as excessive for the purpose
of Eighth Amendment and due process jurisprudence
when it entails the “ ‘unnecessary and wanton infliction
of pain.’ ” Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct.
1078, 1084 (1986) (quoting Ingraham v. Wright, 430 U.S.
651, 670, 97 S. Ct. 1401, 1412 (1977)). That the degree
of force used appears in retrospect to have been unrea-
sonable is not sufficient to establish a constitutional
violation. Id. at 319, 106 S. Ct. at 1084. Where, as here,
force is employed in the course of resolving a disturb-
ance, the pertinent inquiry is “ ‘whether force was ap-
plied in a good faith effort to maintain or restore disci-
pline or maliciously and sadistically for the very pur-
pose of causing harm.’ ” Id. at 320-21, 106 S. Ct. at 1085
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)
(Friendly, J.)). Factors relevant to that inquiry include
whether jail officials perceived a threat to their safety
and the safety of other inmates, whether there was a
genuine need for the application of force, whether the
force used was commensurate with the need for force,
the extent of any injury inflicted, and whatever efforts
the officers made to temper the severity of the force

2
Rice was also placed in a restraint chair and left there for a
similarly prolonged period of time on August 2, 2004, after he
cut his neck with a razor and received treatment at Goshen
General Hospital for the injury. But the Estate does not cite
this incident in connection with its excessive force claim.
Nos. 09-2804 & 10-2389 33

they used. Id. at 321, 106 S. Ct. at 1085. See also Forrest v.
Prine, 620 F.3d 739, 744-75 (7th Cir. 2010); Lewis v.
Downey, 581 F.3d 467, 475-77 (7th Cir. 2009).
The district court characterized the force employed by
jail officials on this occasion not as excessive, but as
“justified and restrained,” applied in good faith, and re-
sulting in no significant injury to Rice, 2009 WL 1748059,
at *13, and the Estate’s cursory treatment of this claim
on appeal has not convinced us that the court erred
in its analysis. Although the Estate contends that Rice
posed no threat to anyone, it does not dispute either
that Rice had been fighting with his cellmate or that
he failed to comply with the directive that he step out
of his cell. A fight among two inmates certainly poses
a danger to the inmates involved as well as the jail
officials who must intervene to stop it. Rice’s mental
illness may explain why he stood unmoving when
ordered out of the cell, as the Estate suggests, but the
Estate cites no evidence showing that the officer who
sprayed Rice’s face with pepper foam appreciated that
he was unable, as opposed to unwilling, to comply with
the order and employed the pepper spray maliciously
rather than in a good faith effort to restore order. The
same is true as to the decision to place Rice in a restraint
chair. The Estate contends in passing that jail officials
violated multiple internal rules in deploying pepper
spray, treating Rice for the effects of that spray, and
then leaving him in the restraint chair for hours on end,
but fails to discuss the relevant rules and how specifically
they were violated. That Rice was left in the chair for
eighteen hours does give one pause. Yet, it is undisputed
34 Nos. 09-2804 & 10-2389

that Rice himself refused to leave the chair when invited
to do so. This too may have been due to Rice’s mental
illness, and to the extent jail officials and/or CMS nurses
recognized this possibility, they may have had some
obligation not to leave him in the chair. But removing
Rice from the chair against his will itself required the
use of force (recall that Rice ultimately had to be dragged
from the chair), so the nurses along with the guards
were in a damned-if-you-do, damned-if-you-don’t situa-
tion. The Estate does not identify what alternative steps
jail officials should have taken, let alone discuss why
their actions would enable a jury to find that they acted
maliciously and sadistically as opposed to negligently
or reasonably. The district court appropriately entered
summary judgment against the Estate on this claim.

D. F AILURE TO P ROTECT
The Estate next argues that the district court erred in
granting summary judgment as to its claim that the jail
failed to protect Rice from assaults by other inmates. The
claim is based on two incidents: (1) the just-discussed
November 16, 2003, incident in which Rice fought with
his cellmate, and (2) the incident on June 25, 2004, in
which inmate Montie George poked a broomstick through
the bars of Rice’s cell and repeatedly struck Rice in
the groin area, resulting in visible welts on his body. The
district court in its ruling discussed only the second
of these two incidents, concluding that summary judg-
ment was warranted because there was no evidence
that either the jail or for that matter Rice expected the
Nos. 09-2804 & 10-2389 35

attack, which the court described as a “random” one. 2009
WL 1748059, at *14.
Jail officials have a duty to protect inmates from
violent assaults by other inmates. Farmer v. Brennan, supra,
511 U.S. at 833, 114 S. Ct. at 1976-77. They incur liability
for the breach of that duty when they were “aware of
a substantial risk of serious injury to [an inmate] but
nevertheless failed to take appropriate steps to protect
him from a known danger.” Guzman v. Sheahan, 495 F.3d
852, 857 (7th Cir. 2007) (quoting Butera v. Cottey, 285 F.3d
601, 605 (7th Cir.2002)); see also Santiago v. Walls, 599 F.3d
749, 758-59 (7th Cir. 2010).
The evidence in this case would not support a finding
that jail officials were aware of but did not appropriately
respond to a substantial risk that Rice might be as-
saulted. We know little about the first incident in 2003
other than that Rice struck his cellmate. The defendants
represent that Rice actually instigated that fight; but
even if he did not, the Estate points to no evidence sug-
gesting that the jail was on notice of the possibility
that Rice was at substantial risk of an assault from an-
other inmate and that jail officials knew of this risk. Nor
has the Estate identified any connection between this
incident and the second one—they occurred in different
units of the jail and involved different inmates—which
might suggest that the later incident was foreseeable
in light of the former.
The Estate submitted an affidavit from inmate George,
who assaulted Rice with the broomstick, explaining that
he attacked Rice because he had become fed up with
36 Nos. 09-2804 & 10-2389

the smell emanating from Rice’s cell. But the district
court excluded from evidence George’s affidavit, along
with another affidavit and a declaration from two
other inmates who were housed in the administrative
segregation unit with Rice,3 because the Estate had not
disclosed these three inmates as prospective witnesses
as required by Federal Rule of Civil Procedure 26(a) and
(e), and the court surely did not abuse its discretion in
so ruling. Although the Estate had obtained the names
of these individuals from the defendants during dis-
covery, the Estate did not disclose them as witnesses
until responding to the defendants’ motions for sum-
mary judgment, and by that time, discovery had closed
and the defendants could not depose them. The omission
was neither substantially justified nor harmless, such
that it might be overlooked pursuant to Rule 37(c)(1).
As the district court rightly observed, “The defendants
aren’t required to guess which of the many individuals
identified during discovery the Estate intends to use to
support its claims—that is the sort of indirection
the disclosure rules are designed to avoid.” 2009 WL
1748059, at *8.

3
Collectively, the affidavits and declaration from these in-
mates reiterated Shaw’s account of what happened the night
that Rice died—i.e., that they heard Rice’s distress and at-
tempted without success to gain the attention of the guards—
and also asserted that Rice’s health was in an obvious state
of decline during the final months of his life, that Rice did not
always receive his meals, that his cell was frequently littered
with uneaten food, and that his hygiene was noticeably poor.
Nos. 09-2804 & 10-2389 37

Without George’s affidavit, the second attack on Rice
indeed appears to have been random, just as the district
court characterized it. But even with the explanation
provided by George’s affidavit, there would be no basis
on which to conclude that the jail was aware of a sub-
stantial risk of injury to Rice. Jail personnel certainly
were aware that Rice had a hygiene problem, but so far
as the record reveals, they had no notice that he was at
risk of assault because of that problem, particularly
within the more secure confines of the administrative
segregation unit.

E. IS C ENICEROS A S TATE A CTOR?
The Estate’s claim against Dr. Ceniceros is primarily
focused on his refusal to admit Rice to Oaklawn in
October 2004. Recall that Dr. Rohrer, concerned that
Rice was in peril of dying, had obtained a court order
authorizing Rice’s involuntary commitment to one of
four inpatient facilities, and Rohrer had attempted to
have Rice admitted to Elkhart General Hospital. But
after Elkhart General refused to admit Rice in the
mistaken belief that it had no contract with the jail, Rice
was instead taken to Goshen, where he was seen by
Dr. Mathew. Although Rice was determined to be medi-
cally stable, Dr. Mathew consulted by telephone with
Dr. Ceniceros as to whether Rice might need inpatient
psychiatric care, which Goshen was not equipped to
provide. But Ceniceros allegedly told Mathew that he
did not believe Rice met the criteria for involuntary
admission and, based on his prior observations of Rice,
38 Nos. 09-2804 & 10-2389

that he was likely malingering. The Estate contends that
Ceniceros’ refusal to admit Rice sight unseen, despite
familiarity with Rice’s schizophrenia, his troubled
history at the jail, as well as his colleague Rohrer’s con-
clusion that Rice was in urgent need of inpatient care,
amounted to deliberate indifference to Rice’s condition.
Ceniceros’ employer, Oaklawn, had contractually under-
taken to provide inpatient psychiatric services to jail
inmates who needed it, and so, in the Estate’s view,
Ceniceros was a state actor vis-à-vis the psychiatric care
that he provided to (or withheld from) inmates. In the
Estate’s view, then, if Ceniceros was deliberately indif-
ferent to Rice’s psychiatric condition as alleged, he could
be liable as a state actor for his indifference just as CMS’s
nurses could be and, for that matter in the same way
that Ceniceros’ colleague, Dr. Rohrer—himself an Oak-
lawn physician—could be.
The district court disposed of the claim against
Ceniceros on the ground that he was not a state actor,
contrary to the Estate’s contention. The court focused
on Rice’s prior commitments to Oaklawn in October
2003 and May 2004, rather than Ceniceros’ refusal to
admit Rice in October 2004. The record, as the court
understood it, indicated that Ceniceros had accepted
Rice for treatment at Oaklawn on the two prior oc-
casions not by virtue of Oaklawn’s contract with CMS,
but rather pursuant to the court orders which com-
mitted Rice involuntarily to Oaklawn for observation
and treatment. 2009 WL 1748059, at *16. Presumably,
although the court did not address the events of Octo-
ber 2004, the court likewise would have emphasized
Nos. 09-2804 & 10-2389 39

that Rice’s commitment to Oaklawn was being sought
on that occasion not pursuant to Oaklawn’s contract
with the jail but pursuant to the court’s order
authorizing Rice’s involuntary commitment to one of
four facilities, including Oaklawn. The court acknowl-
edged that the Supreme Court’s decision in West v.
Atkins, 487 U.S. 42, 51, 108 S. Ct. 2250, 2256 (1988), recog-
nizes that private physicians may be deemed state
actors when they provide medical care to prisoners at
the prison. But the court concluded that West’s rationale
does not extend to a private psychiatrist who accepts
an inmate into his care pursuant to an emergency com-
mitment order. 2009 WL 1748059, at *16. Providing psy-
chiatric care to an individual who has been involun-
tarily committed for such care is not a function tradition-
ally reserved to the state, the court reasoned. Id. Be-
cause, in the court’s view, Dr. Ceniceros did not serve
a public function in caring for Rice, his role was not that
of a state actor.
We have our doubts as to whether the district court
was correct in categorizing Ceniceros as a private rather
than a state actor. Rice was treated by Ceniceros in ful-
fillment of the jail’s obligation to provide medical care,
including necessary psychiatric care, to Rice as an
inmate of the jail. The orders committing Rice to a
private facility simply reflect a judicial determina-
tion, solicited by Rohrer as the jail’s mental health care
provider, that Rice required more intensive psychiatric
treatment than could be provided to him at the jail, and
treatment that had to be provided without his consent.
And the record suggests that it was not happenstance
40 Nos. 09-2804 & 10-2389

or judicial fiat that resulted in Oaklawn’s selection as
the facility to which Rice would be committed on the
first two occasions in October 2003 and May 2004 (and
as one of the four facilities to which he could have been
committed in October 2004). Rather, the facts support
the inference that Rice was committed to Oaklawn
because of Oaklawn’s voluntary, contractual undertaking
to provide psychiatric services to the jail’s inmates.4
The commitment orders did not alter Rice’s status as
a pretrial detainee. Because he was incarcerated, the jail
had an obligation to address Rice’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976).
That obligation included a duty to provide psychiatric
care to Rice as needed. Sanville v. McCaughtry, supra, 266
F.3d at 734; Wellman v. Faulkner, 715 F.2d 269, 272 (7th
Cir. 1983).
If Rice had been committed to the state’s own facility
for treatment by state-employed physicians, there would
be no question that those physicians would qualify as
state actors who could be liable for any deliberate indif-
ference to his psychiatric needs: “ ‘Institutional physi-
cians assume an obligation to the mission that the

4
We note that when Rohrer sought Rice’s admission to Elkhart
General in October 2004, that hospital refused to accept Rice
in the erroneous belief that it had no contractual arrangement
with the jail. This suggests that neither Elkhart nor any of the
other three facilities designated in the court’s commitment
order were obligated to accept Rice in the absence of a con-
tractual relationship with the jail.
Nos. 09-2804 & 10-2389 41

State, through the institution, attempts to achieve.’ ” West,
487 U.S. at 51, 108 S. Ct. at 2256 (quoting Polk County
v. Dodson, 454 U.S. 312, 320, 102 S. Ct. 445, 451 (1981)).
This would be true whether Rice were committed to a
psychiatric unit within the jail, cf. Washington v. Harper,
494 U.S. 210, 110 S. Ct. 1028 (1990) (prisoner medicated
against his will at prison medical facility), or instead
transferred to a state-owned facility outside of the jail,
cf. Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452
(1982) (recognizing that state facility for mentally
disabled has duty to provide, among other things, safe
conditions of confinement to mentally disabled adult
who was involuntarily committed to that facility); see
also Collignon v. Milwaukee County, supra, 163 F.3d at 987
(“When a state actor such as Milwaukee County deprives
a person of his ability to care for himself by incarcerating
him, detaining him, or involuntarily committing him,
it assumes an obligation to provide some minimal level
of well-being and safety.”) (coll. cases).
That Rice was instead committed to the care of a
private psychiatrist—or, in the third instance, was
refused care by that psychiatrist—whose employer
had contracted to provide psychiatric care to the jail’s
inmates, arguably does not alter the analysis materially.
The Supreme Court has not yet addressed whether
medical care provided to a prisoner in a private facility
outside of the prison walls constitutes state action. How-
ever, in West, the Court held that medical care provided
on the grounds of the prison by a private physician under
contract with the state does constitute state action: “Re-
spondent, as a physician employed by North Carolina to
42 Nos. 09-2804 & 10-2389

provide medical services to state prison inmates, acted
under color of state law for purposes of § 1983 when
undertaking his duties in treating petitioner’s injury. Such
conduct is fairly attributable to the State.” 487 U.S. at 54,
108 S. Ct. at 2258. Although the court cited the location
of the treatment as one factor supporting its conclusion,
id. at 56 n.15, 108 S. Ct. at 2259 n.15, nothing in its analysis
suggests that the result necessarily would have been
different had the care been provided at a private facility.
See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
827 (7th Cir. 2009) (“The state clearly does not relieve
itself of its responsibility to provide medical care solely
on account of the venue where those services are ren-
dered.”) (citing Conner v. Donnelly, 42 F.3d 220, 225-26 (4th
Cir. 1994) (deeming private physician who treated pris-
oner’s injury in physician’s office outside prison to be
state actor). Instead, central to the court’s analysis was
that the care was provided under contract with the
prison in fulfillment of the prison’s obligation to pro-
vide for the inmate’s medical needs.
That is arguably just as true here as it was in West.
One might infer that on each of the three occasions
when the court ordered Rice’s involuntary commitment,
Ceniceros and Oaklawn became involved not because
the court chose Oaklawn for its own reasons, or because
Oaklawn was otherwise obliged to provide psychiatric
care to all who sought it, as an emergency room might
be, cf. Rodriguez, 577 F.3d at 827-28, but rather because
Oaklawn had voluntarily agreed to provide inpatient
psychiatric care to the jail’s inmates when needed. As
we observed in Rodriguez:
Nos. 09-2804 & 10-2389 43

When a party enters into a contractual relationship
with the state’s penal institution to provide specific
medical services to inmates, it is undertaking freely,
and for consideration, responsibility for a specific
portion of the state’s overall obligation to provide
medical care for incarcerated persons. In such a cir-
cumstance, the provider has assumed freely the
same liability as the state. Similarly, when a person
accepts employment with a private entity that con-
tracts with the state, he understands that he is a
accepting the responsibility to perform his duties
in conformity with the constitution.
Id. at 827. Had it been possible for Rice to receive
inpatient care from Ceniceros on the premises of the jail,
there would be no question that Ceniceros would qualify
as a state actor under both West and Rodriguez. And the
district court’s focus on the court-ordered nature of
Rice’s commitments implicitly presumes that had Rice
been accepted for admission at Oaklawn in the absence
of such an order, the same might be true. Cf. Rodriguez,
577 F.3d at 830 (assuming that claim against private
ambulance service for alleged deliberate indifference
during inmate’s transport from prison to hospital would
be viable if, inter alia, transportation was provided pur-
suant to contract with prison system); id. at 831-32
(private hospital that accepted inmate for care pursuant
to contract could be liable as state actor).
The court viewed the judicial commitment orders as
superseding Oaklawn’s voluntary assumption of the
jail’s duty to provide psychiatric care to its inmates. But
44 Nos. 09-2804 & 10-2389

the record suggests that the orders had much more to
do with overruling Rice’s will than with Oaklawn’s
willingness to treat Rice on its premises. Rohrer sought
the court orders because Rice, among other things, was
refusing to take his anti-psychotic medications. As we
discuss below, provided he did not pose a danger to
himself or others, Rice had that right. He was committed
involuntarily for inpatient treatment so that, in part,
he could be forcibly medicated. One could infer that
Oaklawn’s status did not change as a result of the
court orders—it was still providing exactly the sort of
inpatient psychiatric care that it had contractually
agreed to provide. Indeed, Oaklawn and Ceniceros re-
mained free to reject Rice’s admission, as evidenced
by Ceniceros’ outright refusal to admit Rice in October
2004. Elkhart General itself refused Rice’s admission
in October 2004 in the mistaken belief that it had no
contract to provide inpatient care to the jail’s inmates. On
these facts, a factfinder might conclude that Oaklawn
and Ceniceros were not dragooned into treating Rice
as a result of the court’s commitment orders, but
rather had voluntarily assumed that role by virtue of
Oaklawn’s contract with the jail. Cf. Rodriguez, 577
F.3d at 831 (hospital which declined to provide non-
emergency care to prisoner because it lacked contract
with prison system, and instead provided only such
emergency care as it would have provided to any mem-
ber of general public, did not constitute state actor).
We need not ultimately resolve Ceniceros’ status,
however, because as we discuss later in this opinion, we
conclude that the facts do not support a finding of delib-
Nos. 09-2804 & 10-2389 45

erate indifference on Ceniceros’ part. We have voiced
our doubts about the district court’s conclusion that
Ceniceros was not a state actor because that is the
sole basis on which the district court resolved the
Estate’s claim against Ceniceros and because, given
the widespread practice of outsourcing jail and prison
medical services to private contractors, it is certain
that this issue will recur. We do not consider what we
have said here to be binding, but we do wish any
future court’s exploration of this issue to take into con-
sideration the circumstances we have highlighted as
relevant to the state-actor determination.

F. O FFICIAL P OLICY OR C USTOM C LAIMS
The Estate has sued Sheriff Books, the keeper of the
jail, and two other officials of the jail (Captain Rogers,
jail commander, and Lieutenant Call, warden) in their
official capacities, along with CMS and Oaklawn, seeking
to hold them liable for customs or policies—including
the failure to train their respective staffs to deal appro-
priately with mental illness—which the Estate believes
contributed to Rice’s death. The Estate cites Books and
the jail for a laundry list of omissions and failures which
it contends evinces the jail’s indifference to mentally
ill inmates with self-destructive tendencies. In particular,
it criticizes Books for (1) inadequate training and super-
vision of the jail staff generally; (2) not adequately
training Rogers and Call and the rest of the jail staff in
the appropriate treatment of mentally ill inmates; (3) not
having adequate policies in place to deal with severe
46 Nos. 09-2804 & 10-2389

mental illness; (4) not educating Rogers as to the jail’s
suicide prevention policy and not ensuring that this policy
was followed after Rice cut his neck; (5) having a policy
conditioning the transfer of an inmate to a psychiatric
facility on Oaklawn’s approval (which Ceniceros repeat-
edly refused to give), and, knowing of Rice’s condition,
not exercising his own purported authority to transfer
Rice to such a facility; (6) not ensuring compliance with
the jail policy requiring hourly checks on inmates in
administrative segregation, which the Estate alleges
were not made on the night of Rice’s death; and (7) inade-
quate training of jail staff as to the use of force on
mentally ill inmates, and/or faulty policies as to the use
of force on such inmates. As to CMS, which was responsi-
ble for the general medical care of the jail’s inmates, the
Estate’s theory is that inaction on the part of CMS’s
nursing staff at a minimum reflects a failure to adequately
train its staff to properly care for mentally ill inmates like
Rice, if not a policy and practice of ignoring the medical
needs of such inmates. The Estate reasons that Rice’s
mental illness was known from the outset of his incar-
ceration, and by the close of 2003 his overall decline was
apparent in his refusal to take his medication, weight
loss, repeated state of undress, and recorded observations
that he was psychotic. Yet, according to the Estate, the
nurses took no meaningful steps to correct Rice’s down-
ward spiral. They remained passive in the ensuing
months even as Rice’s physical and mental states contin-
ued to decline. By way of example, the Estate notes the
lack of any affirmative evidence in the jail’s shower log
that Rice was showered between November 2003 and
Nos. 09-2804 & 10-2389 47

August 2004, along with the nurses’ purported failure to
take appropriate steps after Rice cut his neck with the
razor. Finally, the Estate contends that Oaklawn too
is responsible for Rice’s demise through the actions
of Ceniceros, whom it characterizes as Oaklawn’s
decisionmaker by virtue of his unfettered discretion vis-à-
vis the admission of inmates to Oaklawn’s facility. The
Estate alleges that Ceniceros recklessly wrote Rice off as
a malingerer and refused his admission to Oaklawn
in October 2004 despite his colleague Rohrer’s conclu-
sion that Rice was in danger of dying from malnourish-
ment and Dr. Mathew’s consultation with him as to
the possibility of psychiatric intervention.
The district court found that the evidence did
not support the imposition of municipal or corporate
liability against any of these defendants. The court found
that because the Sheriff was entitled generally to defer
to medical professionals as to the appropriate treatment
of mentally ill prisoners, there was nothing delib-
erately indifferent about the jail’s practice of leaving to
Oaklawn the decision whether or not to transfer a par-
ticular inmate to a facility outside of the jail for treatment.
2009 WL 1748059, at *18. And the Estate had cited no
authority for its contention that Sheriff Books could
have ordered such a transfer on his own. Id. As to the
adequacy of the training and supervision that the Sheriff
had provided to Rogers and Call and the rest of the
jail’s staff, the Estate had not shown any causal link
between the purported deficiencies and any short-
comings in the medical and psychological care provided
48 Nos. 09-2804 & 10-2389

to Rice. Id., at *19. Books had in no way impeded
or interfered with Rice’s treatment by the medical pro-
fessionals and was entitled to rely on them to provide
adequate care to Rice. Id. Finally, assuming that person-
nel had failed to follow the jail’s suicide prevention
policy after Rice cut his neck, and assuming that this
failure was reflective of a policy or practice rather
than being a one-time omission, there was no proof
that this had anything to do with Rice’s eventual death:
Rice did not, after all, commit suicide. Id. With respect
to CMS, the court saw no evidence of a custom or
policy reflecting indifference to the needs of mentally ill
inmates like Rice. Id., at *20-*21. CMS nurses had
generally seen Rice three times every day and had made
efforts to care for him. Id., at *20. Decisions as to Rice’s
psychiatric care were reserved to Rohrer and Oaklawn
pursuant to the contract between CMS and Oaklawn,
and the record indicated that CMS personnel relied
upon and carried out Rohrer’s instructions and com-
municated with him regularly to keep him apprised
of Rice’s condition. Id. Finally, to the extent that the
nurses were responsible for the decision not to put Rice
on suicide watch following the razor incident, there was
no evidence that they exhibited deliberate indifference
in making that decision. Id. Last, as to Oaklawn, the
court found the Estate’s claim deficient in that it was
based solely on the individual actions of Rohrer and
Ceniceros rather than any custom or policy of Oaklawn
itself. Id., at *21.
Private corporations acting under color of state law
may, like municipalities, be held liable for injuries
Nos. 09-2804 & 10-2389 49

resulting from their policies and practices. Monell v. Dep’t
of Social Servs. of City of New York, 436 U.S. 658, 690-91,
98 S. Ct. 2018, 2035-36 (1978); Rodriguez v. Plymouth Ambu-
lance Serv., supra, 577 F.3d at 822 (Monell framework
applies to private corporation acting under color of state
law) (citing Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir.
2008)). In order to recover against a municipal or
corporate defendant under section 1983, it is not
enough for the plaintiff to show that an employee of
the municipality or corporation violated his constitu-
tional rights; he must show that his injury was the result
of the municipality’s or corporation’s official policy or
custom. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479-
80, 106 S. Ct. 1292, 1298 (1986) (plurality); City of
Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S. Ct. 2427,
2432-33 (1985); Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-
36. “[M]unicipal liability under § 1983 attaches where—
and only where—a deliberate choice to follow a course
of action is made from among various alternatives”
by municipal policymakers. City of Canton, Ohio v. Harris,
489 U.S. 378, 389, 109 S. Ct. 1197, 1205 (1989) (quoting
Pembaur, 475 U.S. at 483-84, 106 S. Ct. at 1300-01) (plural-
ity)). An official policy or custom may be established
by means of an express policy, a widespread practice
which, although unwritten, is so entrenched and well-
known as to carry the force of policy, or through the
actions of an individual who possesses the authority to
make final policy decisions on behalf of the municipality
or corporation. E.g., Milestone v. City of Monroe, Wis.,
665 F.3d 774, 780 (7th Cir. 2011); Waters v. City of Chicago,
580 F.3d 575, 581 (7th Cir. 2009). The plaintiff must also
50 Nos. 09-2804 & 10-2389

show a direct causal connection between the policy or
practice and his injury, in other words that the policy
or custom was the “ ‘moving force [behind] the constitu-
tional violation.’ ” Harris, 489 U.S. at 389, 109 S. Ct. at 1205
(quoting Monell, 436 U.S. at 694, 98 S. Ct. at 2038, and
Polk County v. Dodson, supra, 454 U.S. at 326, 102 S. Ct. at
454). The failure to provide adequate training to its em-
ployees may be a basis for imposing liability on a munici-
pality or private corporation, but as with any other
policy or practice for which the plaintiff seeks to hold
the municipal or corporate defendant liable, the plaintiff
must show that the failure to train reflects a conscious
choice among alternatives that evinces a deliberate indif-
ference to the rights of the individuals with whom
those employees will interact. Ibid.
We affirm the district court’s judgment as to these
claims. The Estate has not identified evidence suf-
ficient for the factfinder to conclude that any of the
three sets of defendants maintained a policy or custom
evincing deliberate indifference to the needs of mentally
ill prisoners that resulted in harm to Rice.
Beginning with Sheriff Books and the jail supervisors,
we note that most of the errors and omissions cited by
the Estate have to do with how Rice’s mental illness
and the manifestations of that illness were handled by
the jail staff. The jail certainly has an obligation to
provide for the psychiatric care of its inmates pursuant
to its constitutional obligation to address their serious
medical needs. See Sanville v. McCaughtry, supra, 266 F.3d
at 734; Wellman v. Faulkner, supra, 715 F.2d at 272. But the
Nos. 09-2804 & 10-2389 51

Estate makes no allegation that the jail had any sort
of policy or practice that deprived inmates of reasonable
access to medical and psychiatric professionals or inter-
fered in some way with the treatment prescribed by
those professionals. The closest to such an allegation
is the Estate’s charge that the jail would not transfer an
inmate to a psychiatric facility without Oaklawn’s
approval and that Sheriff Books failed to exercise his
own purported authority to transfer Rice without such
approval. The Estate’s expert, Ken Katsaris, former
sheriff of Leon County, Florida (Tallahassee), opined
that Books had this authority and should have exercised
it in Rice’s case. But as the district court noted, jail
officials ordinarily are entitled to defer to the judgment
of medical professionals. Arnett v. Webster, 658 F.3d 742,
755 (7th Cir. 2011); Johnson v. Doughty, 433 F.3d 1001, 1010
(7th Cir. 2006); Brownell v. Figel, 950 F.2d 1285, 1291-92
(7th Cir. 1991). Certainly jail officials may not turn a
blind eye to an inmate in distress or to obvious incompe-
tence on the part of the physicians and nurses treating
its inmates. See Arnett, 658 F.3d at 755-56. However,
although it cannot be denied that Rice fared poorly
within the confines of the jail, no evidence cited to us
would permit a factfinder to conclude that Books,
Rogers, or Call should have second-guessed the judg-
ment of Drs. Rohrer or Ceniceros or any other medical
professional as to how Rice should be treated and sought
care for him elsewhere. The Estate, in broad strokes,
criticizes the training of jail staff generally and
their training in the handling of mentally ill prisoners
in particular, but has not explained how any particular
52 Nos. 09-2804 & 10-2389

omission in their training harmed Rice. Its only specific
contention is that personnel did not follow the jail’s
suicide prevention policy after Rice cut his neck with
a razor. But there are multiple and obvious flaws with
this theory: (1) the Estate does not come to grips with
the fact that a CMS nurse, Hess, concluded after looking
into the incident that it was not, in fact, a suicide at-
tempt—a view shared by the physician who saw Rice
at Goshen General Hospital; (2) even assuming it was
a suicide attempt, no showing has been made that the
failure to follow the suicide prevention policy was some-
thing other than an aberration; (3) Rice’s subsequent
death, as the district court rightly emphasized, was
not the result of suicide but rather as the result of his
psychogenic polydipsia; and (4) assuming, as the Estate
evidently does, that placing Rice on suicide watch would
have made it more likely that his compulsive water
drinking and its lethal effects would have been
discovered by jail personnel in time to save his life,
the Estate does not explain why the jail should be held
liable for the failure to follow a policy that is aimed at
a danger altogether distinct from the one that actually
killed Rice. The staff’s alleged failure to conduct
the requisite hourly checks of the administrative seg-
regation unit on the night Rice died arguably has a
more direct and foreseeable connection to his death,
assuming that such checks are designed to detect the
very sort of sudden and unexpected occurrence that
killed Rice. But as with the failure to observe the dictates
of the suicide prevention policy, the Estate has made
no attempt to argue that the failure to conduct the
Nos. 09-2804 & 10-2389 53

hourly checks on the night of Rice’s death was a common
and known practice at the jail rather than an isolated
occurrence. Cf. Woodward v. Correctional Med. Servs of Ill.,
Inc., 368 F.3d 917, 929 (7th Cir. 2004) (evidence that
CMS knew of and condoned violations of its written
policies supported imposition of corporate liability).
Finally, although the Estate complains that staff
members were not given adequate instruction as to the
proper use of force against mentally ill prisoners, it
offers no detail as to what specifically was lacking in
their training and how better training would have
altered their conduct when Rice fought with his cellmate
or when he refused to remove himself from a restraint
chair, for example. We said earlier that the Estate’s
custom or practice allegations against Books and the
jail amounted to a laundry list, and we reiterate that
point here: The Estate has made a series of conclusory
allegations without in most instances making even a
rudimentary attempt to identify a policy or practice
which was the moving force between a constitutional
harm that Rice suffered.
The case against CMS fares little better. CMS’s nurses
were arguably best situated to observe Rice’s decline not
only because they saw him on a daily basis, knew of his
diagnosis, and witnessed firsthand his frequent refusals
to be medicated, to communicate, and to eat, but also
because as medical professionals they likely would have
appreciated the connection between those behaviors
and Rice’s schizophrenia as well as the potential ramifica-
tions of his seclusion, lack of self-care, and weight loss.
The record does not suggest, as the Estate at points does,
54 Nos. 09-2804 & 10-2389

that the nurses simply threw up their hands while
Rice’s health declined. They did make regular efforts to
convince him to eat and to take his prescribed medica-
tions; and so far as the record reveals, they faithfully
reported his condition to the physicians who were
charged with overseeing his care. The Estate may have
a point when they assert that the nurses could have
done more to ensure that Rice was cleaned up more
regularly than the record indicates that he was. But even
if we assume that the nursing staff failed Rice in this
or other respects, the Estate, beyond criticizing the suf-
ficiency of their training, has once again made no effort
to identify a policy or practice that would support a
finding that CMS itself was deliberately indifferent to
the plight of mentally ill prisoners like Rice. Insofar as the
nurses, too, are criticized for the response to the razor
incident, we repeat the point that there is no evidence
linking this one incident to some broader policy or
practice of CMS.
As for Oaklawn, the district court rightly pointed out
that the Estate’s claim rests entirely on the acts of
Rohrer and Ceniceros as opposed to some policy or
custom attributable to the hospital. The acts of an indi-
vidual with policymaking authority can be attributed
to the corporation that employs him, Pembaur, 475 U.S.
at 480, 106 S. Ct. at 1298-99, and this is the theory that
the Estate presses on appeal. Ceniceros, it argues, had
final say on whether an inmate like Rice could be
admitted to Oaklawn, and thus he was a policymaker in
that respect. This is the extent of its abbreviated argu-
ment. The district court did not address this theory in its
Nos. 09-2804 & 10-2389 55

thorough decision, and for good reason: It was not argued
below. We have reviewed the written memorandum that
the Estate submitted in opposition to the defendants’
motions for summary judgment, R. 276, and also the
transcript of the oral argument that the district court
held on those motions, R. 349, and nowhere did we find
any argument, let alone a developed one, making a case
that Ceniceros should be treated as a policymaker for
Oaklawn. Even in this court, the argument is so sum-
marily made that Oaklawn has neither noticed nor re-
sponded to it. We therefore deem the argument forfeited,
and because this is not the extraordinary case that might
warrant overlooking the forfeiture, see Shlahtichman v. 1-800
Contacts, Inc., 615 F.3d 794, 803 (7th Cir. 2010), we will
not address it.

G. D ELIBERATE INDIFFERENCE OF JAIL O FFICIALS
The Estate asserts that two groups of jail personnel are
liable for Rice’s death. These include four of the guards
who were on duty the night that Rice died (officers
Shelton, Scott Eisenhour, Kimberly Baxter, and Samantha
Werth) as well as Books, Rogers, and Call, this time in
their individual capacities. The Estate’s theory is that
the entire staff of the jail, from supervisors to guards,
was aware that Rice was severely mentally ill. Even if
jail personnel were unaware of the possibility that he
might die from water toxicity brought on by compulsive
water drinking, the Estate reasons, there were fifteen
months of warning signs prior to his death that
Rice could not care for himself and suffered from self-
56 Nos. 09-2804 & 10-2389

destructive tendencies, and a jury could find that
staff members were subjectively aware of the substantial
risk that Rice might harm himself fatally in some way.
That knowledge, the Estate argues, compelled the jail
defendants to keep Rice under close watch in order to
prevent him from hurting himself. Certainly once Rice
had cut his throat with the razor in August 2004, he
should have been treated as a suicide risk, the Estate
reasons: “Had Defendants followed their own suicide
prevention policies, the likelihood of Nicholas’s death
would have been greatly diminished or prevented.” Estate
Br. 45. Instead, they ignored the risk, and thus increased
the odds that Rice might injure himself to the point
of death before anyone could intervene. And the guards
on duty the night Rice died allegedly did not comply
with the jail’s standing rule that inmates housed in the
administrative segregation unit be checked upon hourly
and did not respond to the door-kicking of inmates
who heard Rice’s distress.
The district court rejected the deliberate indifference
claims against these defendants on the ground that jail
staff, even if they did appreciate the gravity of Rice’s
mental illness, had no warning that Rice might
experience the psychogenic polydipsia that caused his
death. With respect to the guards, the court assumed,
consistent with inmate Shaw’s affidavit, that they had
not made hourly checks of the administrative segregation
unit on the night Rice died. 2009 WL 1748059, at *5, *22.
Still, the court believed that the guards could not be
characterized as deliberately indifferent to Rice’s plight
because there was no evidence that those guards in par-
Nos. 09-2804 & 10-2389 57

ticular knew of his serious medical condition and, even
if they did, they could not have foreseen his death from
water intoxication. Id., at *22. And assuming that other
inmates in the unit with Rice had indeed kicked their
doors when they heard Rice in distress, the evidence
did not suggest that their entreaties included any
warning that Rice was in extremis and needed medical
attention. Id. In short, the guards were not alerted to the
need to regularly monitor Rice to prevent an occurrence
of the kind that resulted in his death. Id. As for Books,
Rogers, and Call, the court agreed that they were aware
of Rice’s medical condition. Id., at *23. But they were
entitled to rely on the expertise of medical personnel as
to the appropriate care of Rice, and they granted Rice
access to medical treatment, did not interfere with
said treatment, and did not withhold relevant informa-
tion from the medical professionals. Id. There was no
evidence that jail managers should have questioned
the judgment of those professionals, especially where
medical personnel had access to medical records that
jail officials themselves were forbidden under federal
law from seeing. Id.
Although we do not concur with the district court’s
reasoning in all respects, we nonetheless conclude that the
district court correctly granted summary judgment to
these defendants. A factfinder might conclude that the
guards exhibited a generalized recklessness with respect
to the safety of the inmates housed on Ward One by
failing to conduct hourly checks of the administrative
segregation unit. But there is no evidence that the
guards were subjectively aware of the possibility that
58 Nos. 09-2804 & 10-2389

Rice might engage in a behavior such as compulsive
water drinking that would cause him to die within a
matter of hours and that they consciously disregarded
that risk. Nor is there evidence that the jail’s super-
visors were aware of such a possibility. On this record,
a factfinder could not reasonably conclude that any of
the jail personnel were deliberately indifferent to this
sort of risk.
A reading of the record favorable to the Estate cer-
tainly would support a finding that the guards failed to
conduct hourly checks of the administrative segregation
unit on the night of Rice’s death. Inmate Shaw, who
was housed in the cell next to Rice’s, averred in his af-
fidavit that over the course of multiple hours during
which Rice could be heard vomiting, no guard came
to check on inmates in the unit, even after Shaw and
other inmates began mule-kicking their doors in an unsuc-
cessful effort to gain the guards’ attention. Although
the named guards and the jail insist that hourly checks
on the unit were made, and that nothing out of the ordi-
nary was apparent, Shaw’s affidavit is enough to create
a factual dispute on this point, as the guards’ counsel
rightly concedes. Payne v. Pauley, 337 F.3d 767, 772-73
(7th Cir. 2003). If no checks were made, a factfinder
certainly could conclude that the guards who were re-
quired to make those checks were indifferent to the
concerns underlying the rule mandating those checks.
Surprisingly, not only do the briefs fail to discuss
the purpose and nature of the jail’s administrative seg-
regation unit and the types of inmates who are placed
Nos. 09-2804 & 10-2389 59

in that unit, they also omit any discussion of the reasons
for the hourly check rule. Administrative segregation
is often used to isolate from the general population of
the prison inmates who either pose a danger to other
inmates or who may be especially vulnerable to assaults
by other inmates. But we do not know whether the ad-
ministrative segregation unit in Elkhart’s county jail
was regularly used (and was known by the guards to be
used) as a place to house prisoners who required
frequent observation because they were medically fragile
or likely to harm themselves. Proof along those lines
might support a finding that the guards appreciated
the risk they were taking by not conscientiously making
their rounds. Cf. Arnett v. Webster, supra, 658 F.3d at 755
(“Non-medical defendants simply cannot ignore an in-
mate’s plight.”); Sanville v. McCaughtry, supra, 266 F.3d at
739 (“If the [guards] were aware of the alleged risk [of
suicide], failing to determine what was going on in [the
inmate’s] cell could easily be conduct egregious to rise
to the level of deliberate indifference.”). But no such
evidence is cited to us. Rice’s mental illness appears
to have been common knowledge at the jail, and so we
may assume for the sake of argument that each of
the guards on duty knew of his illness. Yet there is no
evidence that any of them, even if they were aware of
his full history at the jail (including his weight loss,
inability to care for himself, and frequent catatonia)
knew that he might engage in behavior like compulsive
water drinking that could quickly result in his death
absent intervention by the jail staff.
60 Nos. 09-2804 & 10-2389

The Estate’s reliance on the razor incident as sufficient
to place jail staff on notice of the risk to Rice is under-
standable, as that is the only prior incident that might
fall into the category of self-destructive behavior neces-
sitating immediate intervention. But the incident was
investigated by nurse Hess and deemed not to be a
suicide attempt. As we have noted, her view was shared
by the physician at Goshen Hospital who treated Rice
for his wound. And, again, Rice ultimately did not com-
mit suicide. Rather than deliberately harming him-
self, he suffered a compulsion to drink excessive water
which resulted in a drop in his blood sodium levels and
a heart attack. Categorizing both incidents as manifesta-
tions of Rice’s self-destructive tendencies, and insisting
that the incident with the razor blade was enough to
make the jail staff aware that Rice might harm himself
involuntarily and inadvertently, ignores the substantial
differences between the two incidents and the lack of any
warning whatsoever that Rice might die as a result of
a phenomenon like psychogenic polydipsia. So even if
the guards recklessly failed to conduct hourly checks
as they were required to do, no reasonable factfinder
could find that they knew of, and were deliberately
indifferent to, a risk that Rice might come to medical
harm like cardiac arrhythmia brought on by water
toxicity were he not checked on regularly. See State Bank
of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir. 1983)
(even if defendant police officers disregarded estab-
lished procedures, such as conducting hourly checks of
detainees, deliberate indifference not shown in absence
of evidence that defendants were actually aware that
Nos. 09-2804 & 10-2389 61

detainee who killed himself was a suicide risk, and rea-
sonable precautions against suicide had otherwise
been taken); see also Cagle v. Sutherland, 334 F.3d 980, 987-88
(11th Cir. 2003) (per curiam) (failure to conduct hourly
checks of detainees as required by prior consent decree
insufficient by itself to establish deliberate indifference
to detainee who committed suicide, absent evidence that
defendants had actual knowledge of risk that a detainee
was likely to commit suicide); Hott v. Hennepin County,
Minn., 260 F.3d 901, 907-08 (8th Cir. 2001) (deputy’s
alleged failure to conduct requisite hourly checks of
special needs section of detention center insufficient to
show deliberate indifference to needs of inmate who
killed himself, where evidence did not show deputy’s
awareness of substantial risk that an inmate might
commit suicide); Timson v. Juvenile & Jail Facility Mgmt.
Servs., Inc., 355 F. App’x 283, 286 (11th Cir. 2009) (per
curiam) (non-precedential decision) (deliberate indiffer-
ence not shown despite failure of guards to check jail
inmates every thirty minutes as required by their
corporate employer’s policy, where evidence did not
show guards had reason to be suspicious that inmate
had suicidal tendencies).
Accepting the Estate’s version of the facts as true, the
possibility that the guards did not respond to the
kicking and shouting of other inmates is particularly
disturbing. We do not agree that simply because the
inmates did not somehow expressly signal that there
was a medical emergency, the guards were not placed
on notice that an inmate was in medical distress. Presum-
ably that information would have been conveyed had
62 Nos. 09-2804 & 10-2389

any guard heard the commotion and responded;
and medical distress would be one possibility that the
inmates’ urgent kicking would convey. The whole point
of the door-kicking, one may infer, was to alert the
guards that something was amiss and convince them
to come into the unit so that they could be told just
what that was. Either none of the named guards heard
the kicking and shouting, or one or more of them did
hear it and simply did not bother to investigate.
Nonetheless there are at least two problems with this
claim that foreclose relief to the Estate. First, there is no
discussion in the Estate’s brief as to which of the four
named guards, if any, would have been in a position to
hear the door-kicking of the inmates on Ward One. We
know very little about how the jail, and the administra-
tive segregation unit in particular, was monitored in the
overnight hours; nor do we know where any of the four
named guards was stationed in the jail on the night of
Rice’s death. Was the jail so small that vigorous door-
kicking in Ward One would have been heard anywhere
on the premises? Even if not, would the assigned
rounds of all four of the named guards—apart from
conducting hourly checks of Ward One itself—have at
least brought them within hearing range of the admin-
istrative segregation unit at some point during the
hours immediately prior to Rice’s death, such that
they would have heard the kicking? Such questions
are left unaddressed by the briefs. Second, the Sheriff’s
counsel, at oral argument both before the district court
and this court, and without contradiction by the
Estate, noted that the guard (Bruno Martinsky) who was
Nos. 09-2804 & 10-2389 63

stationed in the control room just across the hall from
the administrative segregation unit on the night of
Rice’s death—and was thus in a position to have heard
any commotion on Ward One—had been dismissed
from the litigation by the Estate. See R. 349 at 50.
Our discussion as to the jail supervisors (Books, Call,
Rogers) may be much more brief. The Estate does not
contend that any of these three defendants was respon-
sible (in his individual capacity) for the failure to check
on Rice the night he died. Its theory instead is that
these defendants were all aware of Rice’s severe
mental illness and his increasingly pitiful condition and
should have, at the least, taken steps to monitor his
condition more closely, as by putting him on suicide
watch, so that his compulsive water drinking on the
night of his death would not have gone unnoticed.
We have already disposed of the notion that the jail
should have put Rice on suicide watch. It appears that
Rice was put in the administrative segregation unit at
least in part to monitor him more closely, and we are
told that his assigned cell (5A) was the cell most
easily seen from the control room across the hall. It
also appears that as Rice’s condition deteriorated, jail
administrators made more of an effort to keep track of
his weight, showering, and so forth. We may assume
that jail officials, short of treating Rice as a suicide
risk, could have done more to watch Rice. (We have
already observed that a jury could find jail personnel
liable for deliberate indifference to his conditions of
confinement.) But what precludes the Estate from re-
covering against these officials for Rice’s death is the
64 Nos. 09-2804 & 10-2389

lack of any evidence that they were on notice of the type
of risk that materialized when Rice unexpectedly began
to consume excessive amounts of water. Jail officials
had no forewarning of that type of event, or of the risk
that he might die suddenly when it occurred.

H. D ELIBERATE INDIFFERENCE OF CMS N URSES
The Estate’s claims against the individual nurses who
cared for Rice at the jail fall into three categories: (1) a
claim based on the failure to note Rice’s distress on the
night Rice died; (2) a claim based on the incident in
which Rice was pepper-sprayed by a guard and then
left for a prolonged period in the restraint chair; and
(3) a claim based on the adequacy of the care Rice
received from the nurses over the period of his incar-
ceration at the jail. The claim as to the night of Rice’s
death is focused on Lambright. Because Lambright was
on duty at the jail on the night that Rice died, and
because she was aware of his condition and history at
the jail, the Estate appears to suggest that Lambright
should have been checking on Rice herself over the
course of the evening. Relatedly, the Estate contends
that Lambright, being aware of the razor incident,
should have seen to it that Rice was placed on suicide
watch, so that he would have been monitored more
closely and so that the distress associated with his psycho-
genic polydipsia would have been noticed. Lambright
is also cited for the response to the pepper-spray inci-
dent, along with Bell. The Estate’s contention is that the
two nurses displayed deliberate indifference by not
Nos. 09-2804 & 10-2389 65

doing more to prevent and/or remediate the guards’ use
of pepper spray and by leaving Rice shackled in a
restraint chair for eighteen hours. As to the totality of
Rice’s care at the jail, Hess, Lambright, Bell, and Jones
are named along with Nurse Florence Makousky and
social worker Margaret Miller. The Estate reasons that
their deliberate indifference may be inferred from their
alleged failure to heed multiple warning signs that
Rice’s mental illness was severe and to pursue more
proactive intervention rather than blindly deferring to
the physicians whose own conduct was, in the Estate’s
view, far too passive. See Berry v. Peterman, 604 F.3d 435,
443 (7th Cir. 2010) (a nurse’s deference to physician
“may not be blind or unthinking, particularly if it is
apparent that the physician’s order will harm the patient”).
The district court gave primary emphasis to two
points in rejecting the Estate’s claim against CMS’s
nurses. First, it stressed that the nurses were entitled to
defer to the medical judgment of Oaklawn, Ceniceros,
and Rohrer as to the appropriate treatment of Rice. 2009
WL 1748059, at *24. Second, the court noted that the
nursing staff visited Rice multiple times daily, monitored
his weight, regularly made efforts to get him to eat
more, and also encouraged him to take the medications
prescribed by Dr. Rohrer. Id., at *24, *26. Although the
court agreed that more could have been done to
monitor Rice’s condition and to treat his illness, it
found the evidence insufficient to support an inference
that the nurses were deliberately indifferent to Rice’s
serious medical needs. Id., at *26.
66 Nos. 09-2804 & 10-2389

We agree with the district court that the record does
not support a finding that any of the CMS nurses
ignored a known medical risk in caring for Rice. To
begin with a point we have made already, Rice died not
as a result of any volitional self-destructive tendencies
that were known to the nursing staff but rather due to
a compulsion to drink large amounts of water that,
so far as anyone knew, Rice had never experienced
before. Moreover, as the district judge pointed out, deci-
sions as to Rice’s treatment—including a decision to
medicate him against his will, which might have
reduced the likelihood of psychogenic polydipsia—
belonged to Rice’s physicians rather than his nurses.
Nurse Lambright was on duty the night Rice died, and
the Estate appears to fault her for not ensuring that he
was checked on regularly and/or for failing to check on
Rice herself. But the Estate points us to no evidence
that Lambright was under an obligation to check on
Rice and the other inmates in the administrative seg-
regation unit hourly, for example, nor does it cite any
evidence that Lambright was within hearing range of
the unit such that she would have heard the kicking of
the other inmates in that unit. Insofar as it might have
been within Lambright’s province to admonish the
guards to make their own hourly checks of Ward One,
the notion that she should have exercised that authority
is premised on Lambright’s knowledge of the incident
in which Rice had cut his neck with the razor. Again,
however, we reject the Estate’s contention that an
incident that could have been understood as a suicide
attempt (although CMS did not construe it as such) was
Nos. 09-2804 & 10-2389 67

sufficient to make Lambright or any other nurse aware
that Rice was at risk for an entirely distinct harm such
as compulsive water drinking.
It is true that a nurse may not unthinkingly defer
to physicians and ignore obvious risks to an inmate’s
health, Berry, 604 F.3d at 443; but with one possible ex-
ception we mention below (and which the Estate does
not pursue), there is no evidence that any nurse con-
sciously disregarded Rice’s schizophrenia or its mani-
festations. Jones’ testimony indicates that she and her
colleagues saw Rice three or more times daily (when
they distributed pills and made their rounds of the segre-
gation unit), 5 monitored his condition and reported it
to his physicians, attempted to convince him to take his
medications, and tried to get him to eat more. They
redoubled their efforts in the latter regard after Rice
returned to the jail following his brief hospitalization
at Goshen General Hospital, with the result that Rice’s
weight loss ceased.
We have considered whether a factfinder could
conclude that the nurses were indifferent to the state of
Rice’s nutrition, given his weight loss and the mild to
moderate malnutrition detected postmortem. Contrary
to the defendants, we believe that Rice’s malnutrition
would be actionable regardless of whether it contributed
to his death. See Farmer v. Brennan, supra, 511 U.S. at 832,

5
As the district court noted, the Estate did not effectively
dispute this fact in response to the defendants’ statement
of material facts below. 2009 WL 1748059, at *5 n.4.
68 Nos. 09-2804 & 10-2389

114 S. Ct. at 1976 (citing provision of “adequate food” as
among prison officials’ duties); Wilson v. Seiter, supra, 501
U.S. at 303, 111 S. Ct. at 2326-27 (citing food as a condi-
tion of confinement); Reed v. McBride, 178 F.3d 849, 852,
853-54 (7th Cir. 1999) (alleged deprivation of food states
Eighth Amendment claim depending on amount and
duration of deprivation); Freeman v. Berge, supra, 441
F.3d at 546 (prison has duty to force-feed mentally
ill prisoner if necessary to prevent starvation to degree
which might seriously impair his health). Perhaps a
factfinder could find some negligence on the part of
the nurses in this regard, given the extent of Rice’s
weight loss before his hospitalization and their evident
ability to help stop his weight loss after he was hospital-
ized without resorting to extraordinary measures like
forced feeding. But we see no evidence that the nurses
ever ignored the risks to Rice’s health posed by his
failure to eat. They were trying to get Rice to eat well
before he was hospitalized; and if their efforts were
more effective after the hospitalization, it was not, so far
as the record reveals, because they were deliberately
indifferent to the problem earlier.
The individual incidents that the Estate cites as
examples of indifference by the nurses do not alter our
conclusion that the nurses were not deliberately indif-
ferent to Rice’s condition. For example, it faults Nurses
Lambright and Bell for standing by while Officer Shelton
ordered that Rice be pepper-sprayed following the alter-
cation with his cellmate and then leaving Rice in
the restraint chair for eighteen hours. This is an echo of
the Estate’s excessive force claim, and it does not call
Nos. 09-2804 & 10-2389 69

into question the nurses’ response to Rice’s medical needs
(recall that the nurses helped cleanse Rice’s face of the
pepper spray, and that Rice refused to leave the restraint
chair when invited to do so). The razor incident is men-
tioned once again, but we have already addressed
that. Finally, Nurse Bell, as evidenced by her own notes,
once told Rice (in response to his refusal to eat, take
his medications, and communicate) that “acting like
this won’t get [you] out of jail like before.” R. 198-37 at 5.
Bell evidently thought that Rice was malingering, but
she was not alone in that perception, and even if she
was mistaken, the remark does not support the conclu-
sion that she was deliberately indifferent to Rice’s
mental health or that she deliberately or recklessly with-
held medical care that Rice needed.
There arguably might be one respect in which a
factfinder might conclude that the nurses were delib-
erately indifferent, and that has to do with the state of
Rice’s hygiene and self-care. We noted earlier with
respect to the conditions of confinement claim against
the jail officials and guards that there is evidence that
Rice went unshowered for long enough periods of time
and that his body was visibly filthy and so malodorous
that other inmates complained about the smell. There
was also the one incident in which dead skin sloughed
off of Rice’s person as guards lifted him off his bunk.
Bedsores, or the beginnings of such sores, were also noted
on his body at times. As we have noted, jail personnel,
including doctors and nurses, have an obligation to
protect an inmate from his own self-destructive ten-
dencies, in this case Rice’s failure to clean himself. A
70 Nos. 09-2804 & 10-2389

factfinder possibly could conclude that Rice’s failure of
self-care was a result of his schizophrenia and that the
nurses, who saw Rice on a daily basis when he was in the
administrative segregation unit, appreciated as much.
Certainly there is evidence that the nurses made some
efforts to address the problem: For example, Jones, the
charge nurse, volunteered to come into the jail on her
own time to shower Rice. Nonetheless, given the
evidence that Rice went unbathed for significant periods
of time, was developing bedsores, and had skin
sloughing off his body when lifted up off of his bed, it is
conceivable that a jury would find that the nursing staff
had consciously disregarded the consequences of Rice’s
failure to care for himself and thus deprived him (or
helped to deprive him) of humane conditions of con-
finement. Depriving Rice of sanitary conditions of con-
finement would be actionable regardless of whether
the deprivation played a role in his death. Cf. Vinning-El
v. Long, supra, 482 F.3d at 924 (sustaining viability of
claim that inmate was subjected to unsanitary and other-
wise inhumane confinement for period of three to six
days) (coll. cases).
The Estate does not make such an argument as to
the nurses, however. We therefore pursue the issue
no further.

I. D ELIBERATE INDIFFERENCE OF D R. R OHRER
The Estate contends that Dr. Rohrer knew that Rice
required inpatient psychiatric care and was deliberately
indifferent to Rice’s need for such care in failing to
Nos. 09-2804 & 10-2389 71

obtain it for him. Rohrer knew that Rice’s condition
was declining: His notes reflect his knowledge of Rice’s
weight loss, Rice’s refusal to take his medications, his
unwillingness to communicate, and his otherwise psy-
chotic behavior. On three separate occasions he peti-
tioned for Rice’s involuntary commitment to a psychiatric
facility, observing on the third occasion in October 2004
that Rice was in peril of dying. Yet, after Dr. Ceniceros
at Oaklawn returned Rice to the jail within twenty-four
hours in the first two instances, concluding that Rice
did not meet the criteria for involuntary commitment
and likely was malingering, Rohrer simply acceded to
Ceniceros’ assessment and took no further action. In the
third instance, Rohrer sought Rice’s admission to a dif-
ferent facility (Elkhart General), which refused the ad-
mission in the mistaken belief that it did not have a
contract with the jail to treat inmates. Rice was
then taken to Goshen Hospital, where he was declared
medically stable and returned to the jail after Ceniceros
refused his admission to Oaklawn. When, two months
later, Rice was found incompetent to stand trial, he was
designated for admission to Logansport State Hospital,
which put him on a waiting list. In the view of one
of the defense experts, Dr. Daniel Scherb, there was a
meritorious argument that Rohrer should have con-
sidered securing a court order authorizing Rice to be
forcibly medicated and fed by means of a feeding tube.
Although Scherb did not believe that Rice’s refusal to
eat and take medication factored into his death, he ac-
knowledged the possibility that had Rice been medi-
cated, he might not have experienced the psychogenic
72 Nos. 09-2804 & 10-2389

polydipsia that ultimately resulted in his death. Estate
experts opined more affirmatively that had Rice been
involuntarily medicated, he would not have died. Thus,
in the Estate’s view, Rohrer may be found liable for
failing to prescribe an effective course of treatment—
including involuntary admission to a psychiatric facility
and/or forced medication—to prevent Rice’s death.
As with the Estate’s claims against the CMS nurses
and the jail’s staff, the district court rejected this claim
for want of proof that Rohrer was deliberately indif-
ferent to Rice’s condition. Again, the court emphasized
that Rice’s medical needs had not been ignored. 2009 WL
1748059, at *26. Rohrer, like the other medical defendants,
was aware of Rice’s schizophrenia and took steps to
treat it: He visited Rice regularly, monitored his condi-
tion between visits, prescribed psychotropic medica-
tion subject to Rice’s willingness to take it, and peti-
tioned for his commitment to inpatient facilities on three
separate occasions. Id., at *25. Although Rohrer saw
Rice only once in late 2004 following Rice’s return to
the jail from Goshen Hospital, he did instruct the nurses
to ask Rice weekly whether he would resume his med-
ications; he knew that Rice was eating some food; and
the Estate presented no evidence that any particular
psychiatric care, other than forced medication, would
have improved his medical condition. Id. Second, the
court pointed out that Rice enjoyed both a right under
Indiana statutory law to refuse medical treatment as
well as a significant liberty interest recognized by the
Supreme Court in Washington v. Harper, supra, 494 U.S.
210, 110 S. Ct. 1028, in avoiding unwanted anti-psychotic
Nos. 09-2804 & 10-2389 73

drugs. Id. Rice could not be forcibly medicated without
affording him procedural protections, which among
other things entailed a proof of an overriding justifica-
tion for involuntary medication along with a finding
that the drugs were medically appropriate. Id. Where,
as in this case, a doctor’s obligation to address his
patient’s serious medical needs conflicts with the
patient’s right to refuse treatment, the proper resolution
of the conflict implicates the physician’s medical judg-
ment. Id., at *25-*26. Third, because Rice had not experi-
enced compulsive water drinking prior to the night he
died, his death as a result of psychogenic polydipsia,
hyponatremia, and cardiac arrhythmia was not rea-
sonably foreseeable to Rohrer. Id., at *26. Finally,
assuming, consistent with the criticisms of Rice’s care
expressed by the Estate’s experts, that Rohrer could
have done more to treat Rice’s schizophrenia, a jury
still lacked any basis on which to find that Rohrer
was guilty of deliberate indifference to Rice’s serious
medical needs. Id.
We view it as a somewhat closer question than others
whether Rohrer was entitled to summary judgment. In
resolving the claims against the jail staff, we have
stressed that they could justifiably rely on the judgment
of the medical professionals, and we have similarly
observed that the nurses were entitled to rely on the
judgment of the physicians. Rohrer was the medical
professional who was responsible for making decisions
as to how Rice’s schizophrenia should be treated. To the
extent that Rice’s condition demanded inpatient care,
forced medication, or forced nutrition, Rohrer was the
74 Nos. 09-2804 & 10-2389

physician in a position to pursue such care on Rice’s
behalf. In fact, Rohrer did seek Rice’s involuntary ad-
mission to Oaklawn for seventy-two hours for forced
medication as well as observation on two occasions, only
to have Ceniceros conclude that Rice was malingering
and order him returned to the jail within twenty-four
hours. Yet, it is undisputed that Rohrer had the ability
to have Rice admitted to another facility, which is what
he tried to do in October 2004, only to run into Elkhart
General’s mistaken belief that it had no contract with
the jail and Ceniceros’ refusal to admit him at Oaklawn
when Dr. Mathew explored that possibility with him.
The Estate contends that had Rohrer sought Rice’s ad-
mission to another facility sooner than he did, or alterna-
tively sought authority to medicate Rice involuntarily
at the jail (assuming that was possible), then the odds
of Rice engaging in compulsive water drinking, and ex-
periencing the fatal complications of that polydipsia,
might have been reduced, as Dr. Scherb theorized. Grant-
ing it the benefit of those inferences, the Estate has
shown a plausible nexus between Rohrer’s treatment
decisions and Rice’s death.
But ultimately we agree with the district court that the
Estate has made at most a case for negligence on the
part of Dr. Rohrer. On this record, no reasonable fact-
finder could characterize Rohrer’s treatment decisions
as being deliberately indifferent to Rice’s serious
medical needs, or, put another way, that his decisions
represented “ ‘such a substantial departure from ac-
cepted professional judgment, practice, or standards
as to demonstrate that [he] actually did not base the
Nos. 09-2804 & 10-2389 75

decision[s] on such a judgment.’ ” Collignon v. Milwaukee
County, supra, 163 F.3d at 989 (quoting Youngberg v. Romeo,
supra, 457 U.S. at 323, 102 S. Ct. at 2462); see also id. at 988-89
(discussing professional judgment standard as a variant
of Eighth Amendment deliberate indifference standard
and noting there is little difference between the two).
As the district court rightly noted, Rice had a statutory
and a constitutional right, provided he did not pose a
danger to himself or others, to refuse the very medica-
tions that might have mitigated the symptoms of his
schizophrenia and lessened the odds of him experi-
encing psychogenic polydipsia. See Harper, 494 U.S. at 221-
22, 110 S. Ct. at 1036-37 (1990); Ind. Stat. 12-27-5-1, 12-27-5-
2 (formerly Ind. Stat. 16-14-1.6-7); In re Mental Commit-
ment of M.P., 510 N.E.2d 645, 647-48 (Ind. 1987); see also
Sanville v. McCaughtry, supra, 266 F.3d at 736. Rohrer
was aware that Rice’s unwillingness to take his prescribed
anti-psychotic medications was adversely affecting his
mental and physical health, and for that very reason he
did try, on three separate occasions, to have Rice invol-
untarily committed for treatment. But as it turned out,
Rohrer’s colleague, Ceniceros, concluded that Rice was
not psychotic and likely malingering and had him
returned to the jail on the first two occasions and
refused his admission outright in the third instance
after Elkhart General turned Rice away and Goshen’s
Dr. Mathew spoke to him about the possibility of his
admission to Oaklawn. Ceniceros, unlike Rohrer, was
board-certified in psychiatry. Even if we assume that it
was imprudent for Rohrer to accept Ceniceros’ assess-
ment, no evidence supports an inference that Rohrer
76 Nos. 09-2804 & 10-2389

was consciously disregarding a risk to Rice’s well-being.
Rohrer believed that involuntary, inpatient treatment
was warranted, but his colleague found no need for it.
By October 2004, when Rohrer concluded that Rice’s
life was in danger, it was obviously clear to Rohrer that
medical intervention was required notwithstanding
what Ceniceros may have thought—thus Rohrer’s deci-
sion to seek Rice’s admission to a facility other than
Oaklawn. Despite the failure of that effort, Rice was
declared medically stable by the physicians at Goshen
Hospital and returned to the jail with a directive that
his diet be supplemented. After that, his weight loss,
which was one of the major reasons Rohrer had sought
his hospitalization, ceased. And once Rice was declared
incompetent to stand trial in December, he was on
a waiting list for admission to Logansport. Given the
stabilization of Rice’s weight, there is nothing in the
record suggesting that Rohrer was aware of a serious risk
to Rice’s life, and certainly there was no warning that
Rice might experience the psychogenic polydipsia that
led to his death. We assume, as the district court did, that
Rohrer and the other medical professionals at the jail
could have done more generally to monitor Rice’s condi-
tion and could have tried sooner and more forcefully
to have his schizophrenia treated involuntarily. Perhaps
a factfinder could find that Rohrer breached the duty of
care he owed to Rice by failing to do more than he did
to monitor and treat Rice’s mental illness. Some of the
gaps in time between Rohrer’s visits to Rice, and in par-
ticular the fact that Rohrer only saw Rice once fol-
lowing his return to the jail in October 2004, are troubling
Nos. 09-2804 & 10-2389 77

given Rohrer’s own concern that Rice’s condition was
declining. But the Estate has not shown how any such
omissions harmed Rice, and we cannot characterize
any omission on his part as deliberate indifference to
Rice’s medical needs.
Earlier in this opinion, we expressed our doubts as to
the district court’s conclusion that Ceniceros did not
qualify as a state actor. The district court never pro-
ceeded beyond that threshold question, but assuming
that Ceniceros was a state actor, we believe that he
would still be entitled to summary judgment on
grounds similar to those we have just articulated as to
Rohrer. Ceniceros was obviously much more removed
from Rice’s day-to-day condition than Rohrer was. In-
deed, on the occasions that Ceniceros observed Rice first-
hand, Rice behaved far differently than he did at the
jail, which was what led Ceniceros to conclude that
Rice was not in need of inpatient treatment and/or
forced medication. But even if Ceniceros is charged with
Rohrer’s knowledge, the claim against Ceniceros is not
strong enough to survive summary judgment. The best
argument that can be made against Ceniceros is that,
knowing of the concerns that twice led Rohrer to seek
Rice’s commitment to Oaklawn, he should not so
hastily have discharged Rice from Oaklawn on the two
occasions Rice was sent there, and he should not have
refused Rice’s admission in October 2004 when Dr.
Mathew at Goshen consulted with him on the need for
inpatient psychiatric care. Although we view this ques-
tion too as closer than others in this case, given the non-
psychotic behavior that Rice had displayed at Oaklawn,
78 Nos. 09-2804 & 10-2389

we do not believe that a reasonable factfinder could
conclude that Ceniceros was deliberately indifferent as
opposed to negligent (at worst) in discounting the possi-
bility that Rice was so seriously mentally ill as to need
inpatient care and forcible medication. There is evidence
that the malingering Ceniceros perceived itself could
have been due to Rice’s schizophrenia (Dr. Yoder, the
Oaklawn psychologist who evaluated Rice’s competency
in April 2004, so opined), but there is no real dispute
that Rice did exhibit signs of manipulative behavior,
and whether this behavior was due to Rice’s illness or
simply to his desire to get out of jail was a matter on
which reasonable professionals could (and did) disagree.
That point aside, Ceniceros, like Rohrer, had no warning
that Rice might experience compulsive water drinking,
and therefore did not consciously disregard the circum-
stances that led to Rice’s death.

J. S TATE C LAIMS
As we noted earlier in our factual summary, after
granting summary judgment in favor of the defendants
on all of the federal claims, Judge Miller relinquished
jurisdiction over the Estate’s state-law claims for
wrongful death (which included claims of negligence,
gross negligence, and wilful and wanton misconduct)
once he determined that the Estate had not properly
alleged the existence of diversity jurisdiction over those
claims (and concluding that diversity appeared to be
lacking). 2009 WL 1748059, at *27. The Estate then nar-
rowed the list of defendants named in its state-law claims
Nos. 09-2804 & 10-2389 79

to citizens of states other than Michigan (of which the
Estate is a citizen) and re-filed these claims against
the CMS defendants alone in federal court, expressly
invoking the court’s diversity jurisdiction. The new suit
was assigned to Judge Lozano, who dismissed the
claims on the basis of collateral estoppel.
The linchpin of the collateral estoppel ruling was
Judge Miller’s finding, in disposing of the deliberate
indifference claims, that “ ‘it wasn’t reasonably fore-
seeable that Mr. Rice would suffer from cardiac
arrhythmia due to hyponatremia arising from Mr. Rice’s
ingestion of excessive amounts of water over a short
period of time.’ ” Estate of Rice ex rel. Rice v. Correctional
Med. Servs., No. 09 C 319, Order at 2-3 (N.D. Ind. May 17,
2010) (quoting 2009 WL 1748059, at *26). Judge Lozano
noted that in order to recover for wrongful death under
Indiana law, the Estate would have to prove, inter alia,
that a defendant breached a duty that he or she owed
to Rice, and that the breach proximately caused an injury
to Rice. Id. at 6. The foreseeability of an injury is a funda-
mental test of proximate cause. Id. at 6. But Judge Miller
had already determined, in his summary judgment
ruling on the federal claims, that Rice’s death as a result
of compulsive water drinking was not reasonably fore-
seeable. Although the legal theory underlying the
federal claims (deliberate indifference) differed from
that underlying the state claims (negligence), the specific
issue of foreseeability did not differ. Id. at 7-9. In order
to prevail on its state claims, the Estate would inevitably
have to prove that death as a result of psychogenic
polydipsia was a foreseeable risk to Rice that the CMS
80 Nos. 09-2804 & 10-2389

defendants had a duty to guard against. Id. at 9-10.
Judge Miller unequivocally determined that Rice’s death
by water ingestion was not reasonably foreseeable. Id. at
10. Given that the parties had spent three years
litigating the case, including the foreseeability of Rice’s
death, in the litigation before Judge Miller, the Estate
had enjoyed a full and fair opportunity to litigate that
issue. Id. at 10-11. Judge Miller’s finding on this point
was thus entitled to collateral estoppel effect, barring
the Estate from relitigating the question in the context
of its state claims.
The Estate contends that it is inequitable to give
Judge Miller’s finding as to the foreseeability of Rice’s
death preclusive effect as to the state claims. Because
the federal claims of deliberate indifference are governed
by a distinct standard, and because Judge Miller in rec-
ognition of the difference expressly abstained from ad-
dressing the possibility that any of the defendants, in-
cluding the CMS defendants, were negligent, it would
be unfair to dispose of the state claims on the basis of
his foreseeability finding.
We agree that Judge Miller’s finding as to foreseeability
should not be given preclusive effect, because it was
unnecessary for him to resolve the issue of foreseeability
in order to dispose of the Estate’s deliberate indifference
claims. Because Judge Miller’s decision was a federal
judgment, we look to federal common law for the criteria
governing preclusion. Taylor v. Sturgell, 553 U.S. 880,
891, 128 S. Ct. 2161, 2171 (2008); Firishchak v. Holder, 636
F.3d 305, 308 (7th Cir. 2011), cert. denied, 2012 WL 538406
Nos. 09-2804 & 10-2389 81

(U.S. Feb. 21, 2012). For a federal court’s ruling on a
particular issue to be given preclusive effect, that issue
must have been both actually and necessarily decided in
the prior action. Id.; see also R ESTATEMENT (SECOND) OF
JUDGMENTS § 27 & comment h (1982) (prior determination
of issue must have been, inter alia, “essential to the judg-
ment”). No one disputes that Judge Miller actually
decided that Rice’s death due to psychogenic polydipsia
was not reasonably foreseeable to the CMS defendants
(among others), but the pertinent question is whether it
was necessary for him to decide that question. The
Estate is on the right track when it emphasizes the
material differences between the federal claims of deliber-
ate indifference and the state claims of negligence. Such
differences do not, in and of themselves, prevent an
invocation of collateral estoppel, as Judge Lozano quite
rightly pointed out. E.g., Taylor, 553 U.S. at 892, 128 S. Ct.
at 2171 (citing New Hampshire v. Maine, 532 U.S. 742, 748-
49, 121 S. Ct. 1808, 1814 (2001)). But such distinctions
do shed light on whether it was necessary for the court
in prior litigation to reach a particular issue. In order
for the Estate to succeed on its claim that the med-
ical defendants were deliberately indifferent to Rice’s
serious medical needs, it was necessary to show that
the defendants consciously disregarded a known risk, not
merely a reasonably foreseeable risk, to Rice’s safety and
well-being. See Knight v. Wiseman, 590 F.3d 458, 463
(7th Cir. 2009), and Matos ex rel. Matos v. O’Sullivan, 335
F.3d 553, 557 (7th Cir. 2003), both citing Proffitt v.
Ridgway, 279 F.3d 503, 506 (7th Cir. 2002). Although the
parties before Judge Miller spent a fair amount of time
82 Nos. 09-2804 & 10-2389

talking about whether it was foreseeable to the medical
defendants that Rice might suffer a bout of psychogenic
polydipsia, the relevant question was whether they
knew Rice was at risk for polydipsia yet consciously
disregarded the risk (the subjective inquiry called for
by the deliberate indifference standard) rather than
whether the risk was reasonably foreseeable to them
(which is the objective inquiry that typifies negligence
cases). See Knight, 590 F.3d at 463. Thus, when
Judge Miller concluded that none of the medical defen-
dants were deliberately indifferent to the possibility that
Rice might experience psychogenic polydipsia, he was
necessarily finding that they were not subjectively
aware of this risk and in turn did not consciously
disregard it. And that was all that he needed to find.
His broader observation that Rice’s compulsive water
drinking, and in turn the possibility that he might die
from it, were not reasonably foreseeable to these defen-
dants was unnecessary to his ruling on the deliberate
indifference claims. In the words of the Restatement, his
finding as to foreseeability was “not essential to the
judgment.” R ESTATEMENT (SECOND) OF JUDGMENTS § 27
& comment h. See, e.g., George E. Hoffman & Sons, Inc. v.
Int’l Brotherhood of Teamsters, 617 F.2d 1234, 1246 n.31
(7th Cir. 1980); Gen. Conference Corp. of Seventh-Day Ad-
ventists v. McGill, 617 F.3d 402, 413-14 (6th Cir. 2010), cert.
denied, 131 S. Ct. 2097 (2011); Ass’n of Bituminous Contrac-
tors, Inc. v. Andrus, 581 F.2d 853, 860 (D.C. Cir. 1978).
There are, at the same time, unmistakable hints else-
where in Judge Miller’s opinion that he did not intend
Nos. 09-2804 & 10-2389 83

to make any ruling that would preclude the Estate’s state-
law claims. In particular, the judge expressly stated that
he was not speaking to the possibility that the medical
defendants (including, of course, the CMS defendants)
may have been negligent. 2009 WL 1748059, at *24 (“the
Estate’s state law malpractice claims remain, so no dis-
cussion is appropriate as to whether the medical care
provided by the defendants fell below the applicable
standard of care under Indiana law”); id., at *23 (“De-
liberate indifference is not medical malpractice . . . .”)
(internal quotation marks and citations omitted). We
are confident that had he been asked whether
he meant to render a finding on the foreseeability of
psychogenic polydipsia that would be preclusive as to
the Estate’s state-law claims, the judge would have an-
swered that he did not. See id., at *27.
We therefore conclude that Judge Miller’s finding as to
the foreseeability of Rice’s polydipsia should not be
accorded preclusive effect as to the state-law claims. No
other basis for affirming the dismissal of those claims
has been argued to us. Consequently, those claims
will be remanded to the district court for further pro-
ceedings. It may make sense to consolidate the litiga-
tion over those claims with what remains of the federal
suit before Judge Miller. As the substance of the state
claims has not yet been addressed by the district court
and has not been argued in this court, nothing we
have said in this opinion should be construed as
speaking to the merits of those claims.
84 Nos. 09-2804 & 10-2389

III.
For the foregoing reasons, in No. 09-2804, we affirm
in part and reverse in part the district court’s entry
of summary judgment in favor of the defendants,
and in No. 10-2389, we reverse the district court’s deci-
sion to dismiss on the basis of collateral estoppel.
We remand both cases to the district court for further
proceedings consistent with this opinion.

3-20-12