In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3233
E STATE OF JESSIE M ILLER,
By Robert Bertram, Special
Administrator, et al.,
Plaintiffs-Appellees,
v.
R YAN T OBIASZ, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Wisconsin
No. 10 CV 807—William M. Conley, Chief Judge.
A RGUED F EBRUARY 24, 2012—D ECIDED M AY 24, 2012
Before R OVNER and M ANION, Circuit Judges, and
C OLEMAN, District Judge.
C OLEMAN , District Judge. Jessie Miller committed
suicide while incarcerated at the Columbia Correctional
The Honorable Sharon Johnson Coleman, District Judge
for the United States District Court for the Northern District
of Illinois, is sitting by designation.
2 No. 11-3233
Institute (“CCI”). Miller’s minor siblings brought this
action under 42 U.S.C. § 1983, claiming that Miller com-
mitted suicide after several staff members at CCI acted
with deliberate indifference to Miller’s serious medical
condition involving a long history of suicide attempts, self-
harm, and mental illness. The district court granted
qualified immunity to the management level de-
fendants, the Wisconsin Resource Center (“WRC”) defen-
dants, and the nurse who was called after Miller
had committed suicide. The remaining defendants 1 ,
including CCI staff members, Jennifer/Janel Nickel2 ,
Ryan Tobiasz, Lieutenant Boodry, Captain M. Johnson,
Sergeant Severson, Officer Millard, Officer Herbrand,
Officer Bath, and Officer Quade, seek interlocutory
appeal from the district court’s denial of qualified im-
munity. We affirm.
I. Background
The CCI defendants are allowed to bring this interlocu-
tory appeal now because they are raising the question of
whether they should have been dismissed based on the
defense of qualified immunity. See Mitchell v. Forsyth, 472
1
At oral argument, there appeared to be some disagreement
about the number of defendants remaining in the case. Plaintiff
suggested only Nickel, Tobiasz and the two guards on duty
remain defendants. Defendants asserted that based on the
District Court’s ruling nine defendants remain.
2
Nurse Nickel is referred to variously as Janel Nickel and
Jennifer Nickel, and was previously unidentified Jane Doe.
No. 11-3233 3
U.S. 511, 525-26, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). The
issue of qualified immunity is “immunity from suit
rather than a mere defense to liability,” and thus we must
determine its application as early in the proceedings as
possible. Saucier v. Katz, 533 U.S. 194, 200, 150 L. Ed. 2d
272, 121 S. Ct. 2151 (2001) (emphasis in original). The
facts below are presented in the light most favorable
to Miller.
Jessie Miller had suffered from mental health issues
since the age of five. Over the years, Miller engaged in
various types of self-harm and attempted suicide on
several occasions. His mental health issues, self-harm
and suicidal ideation were well documented. During
his incarceration, Miller attempted suicide at Dane
County Jail on November 10, 2007, and then again at
Dodge Correctional Institute on June 4, 2008. Miller
was transferred to WRC due to his suicide attempts.
While at WRC, Miller continued to harm himself by
swallowing razor blades and other sharp objects and
banging his head against the walls. At some point, he
stated that he would commit suicide if returned to a
Wisconsin Department of Corrections facility. Three days
after being transferred to CCI on June 19, 2009, Miller
committed suicide by hanging himself with a bedsheet.
He was twenty-two years old.
Miller’s minor siblings filed the instant lawsuit
on Miller’s behalf alleging violation of Miller’s Eighth
Amendment rights based on defendants’ deliberate
indifference to Miller’s serious medical condition (his
mental illness and suicide risk). After obviously careful
4 No. 11-3233
consideration in a lengthy memorandum opinion and
order, the District Court granted qualified immunity
dismissal to seventeen of the approximately twenty-six
defendants, including the management level defendants,
WRC defendants and the nurse who was called after
Miller had committed suicide. The appellants are CCI
staff including the intake nurse (Nickel), the psych-
ology associate (Tobiasz), and several prison guards that
were on duty the night Miller committed suicide (Bath,
Boodry, Herbrand, Johnson, Millard, Quade and Severson).
II. Discussion
A complaint must be dismissed if the allegations do not
state a plausible claim. See Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937 (2009). “The Court explained in Iqbal that ‘the plausi-
bility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defen-
dant has acted unlawfully.’ ” Atkins v. City of Chicago, 631
F.3d 823, 831 (7th Cir. 2011) (quoting Iqbal, 129 S. Ct. at
1949). As this Court recently explained in Atkins, “the fact
that the allegations undergirding a plaintiff’s claim could
be true is no longer enough to save it.” Atkins, 631
F.3d at 831. Thus, after Twombly and Iqbal, a plaintiff
must plead facts that suggest a right to relief beyond the
speculative level. Id. at 832.
Qualified immunity protects government officials
from individual liability for actions taken while per-
forming discretionary functions, unless their conduct
No. 11-3233 5
violates clearly established statutory or constitutional
rights of which a reasonable person would have known.
See Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th
Cir. 2000). Thus, in order to determine whether a
prison official is entitled to qualified immunity the
Court has two tasks. First, taking the facts in the light
most favorable to the plaintiff, we must determine
whether a constitutional right was violated. Second, if
the factual allegations demonstrate a constitutional viola-
tion, we then decide whether the right in question was
clearly established at the time of the occurrence.
Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003)
(citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). We review
these issues de novo. Jacobs v. City of Chicago, 215
F.3d 758, 765 (7th Cir. 2000).
We therefore begin by examining whether the
plaintiffs have alleged facts sufficient to plausibly
support the claim that the CCI defendants’ conduct
violated Miller’s constitutional rights. The same standard
applies for pretrial detainees and incarcerated indi-
viduals, though pursuant to the Fourteenth Amendment
rather than the Eighth Amendment. See Payne v. Churchich,
161 F.3d 1030, 1039-41 (7th Cir. 1998). The seminal case
describing constitutional violations under the Eighth
Amendment is Farmer v. Brennan, 511 U.S. 825, 832 (1994).
In Farmer, the Supreme Court held that prison officials
have a duty to “ensure that inmates receive adequate
food, clothing, shelter, and medical care.” Id. To deter-
mine whether an inmate’s Eighth Amendment rights
were violated by a deprivation, we examine the alleged
violation both objectively and subjectively. “First, the
6 No. 11-3233
deprivation alleged must be objectively, sufficiently
serious.” Sanville v. McCaughtry, 266 F.3d 724, 733 (7th
Cir. 2001) (quoting Farmer, 511 U.S. at 832). “Second,
the mental state of the prison official must have been
‘one of deliberate indifference to inmate health or
safety.’ ” Id.
In order to satisfy the first element, when a claim is
based upon the failure to prevent harm, the plaintiff
must show that the inmate was “incarcerated under
conditions posing a substantial risk of serious harm.”
Id. This Court has stated in numerous cases that, “suicide
is a serious harm.” See, e.g., Estate of Cole v. Fromm,
94 F.3d 254, 261 (7th Cir. 1996); see also Estate of Novack
ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th
Cir. 2000); Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992).
Under the second prong, “deliberate indifference”, “a
prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane condi-
tions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
Sanville, 266 F.3d at 734 (quoting Farmer, 511 U.S. at 837).
The question for us is whether, when viewing all well-
pleaded allegations in the complaint and construing
all reasonable inferences in the light most favorable to
Miller, it is plausible that each of the defendants-appel-
lants were subjectively aware of Miller’s serious medical
condition (i.e., that he was a suicide risk) and either
No. 11-3233 7
knowingly or recklessly disregarded it. If the answer
to that question is yes, then plaintiff has adequately
pleaded a constitutional violation and we ask whether
the right was clearly established at the time of the incident.
The defendants-appellants are in different positions
in terms of what they knew of Miller: Defendant Nickel,
a registered nurse at CCI, reviewed Miller’s chart upon
his arrival from WRC, conducted the transfer screening,
referred him to the Psychological Services Unit (“PSU”)
and checked “Yes” on the transfer form indicating that
Miller was on psychological medications; Defendant
Tobiasz, a psychological associate in the PSU at CCI,
personally met with Miller after a referral from Nickel
to determine whether he should be placed in Dis-
ciplinary Segregation or within CCI’s Special Manage-
ment Unit (“SMU”); Bath, Boodry, Herbrand, Johnson,
Millard, Quade, Severson were the prison security staff
on duty the day of Miller’s suicide. Millard made
rounds in the SMU at 11:00 p.m. on the night in
question and saw Miller on the floor of his cell but that
nothing appeared amiss. Severson found Miller on
the floor with no pulse and a ligature around his neck
at 11:58 p.m. Quade arrived next, called the control
booth, and asked why no alarm had sounded. Bath
arrived to see Miller lying on his back with white cloth
around his neck and ran to the control booth to get a
rescue knife. Boodry directed Bath to return to the
control booth and get a shield before entering Miller’s cell.
The first prong of the qualified immunity analysis
requires the Court to determine whether plaintiff ade-
8 No. 11-3233
quately pleaded a constitutional violation against each
defendant. It is plausible that both Nickel and Tobiasz
had actual knowledge that Miller was a suicide risk.
Nickel reviewed Miller’s file that indisputably con-
tained his history of self-harm and suicide attempts.
While Tobiasz did not review Miller’s file, he met with
Miller and was aware of his history of self-harm and
chose to place him in the SMU. Both the Supreme Court
and the Seventh Circuit have held that “[i]f the circum-
stances suggest that the defendant-official being sued
had been exposed to information concerning the risk
and thus ‘must have known’ about it, then such
evidence could be sufficient to permit a trier of fact to
find that the defendant official had actual knowledge of
the risk.” Sanville, 266 F.3d at 737 (quoting Farmer, 511
U.S. at 842). Thus, with respect to Nickel and Tobiasz
this Court should proceed to determine whether they
took reasonable steps to prevent the harm.
The complaint alleges that the security officers knew
or should have known of Miller’s mental illness and
suicide attempts because he was adjudicated mentally
ill, had court-ordered medications which he refused to
take at 8:30 p.m. the night he died, and he had a
well documented history of suicidal behavior. These
allegations along with the fact that Miller was housed
in the SMU, where inmates in need of greater super-
vision are placed, support the reasonable inference that
the security officers were exposed to information con-
cerning Miller’s suicide risk. While discovery may prove
otherwise, their knowledge of the risk can reasonably
be inferred at this very early stage of the litigation.
No. 11-3233 9
The next part of the deliberate indifference analysis
for determining whether plaintiff adequately pleaded a
constitutional violation is whether the defendants took
reasonable steps to prevent the harm. Plaintiff alleges
that Nickel took no action to assure Miller’s safety, but
also alleges that she referred Miller to the PSU, noted
that he should be on psychiatric medication and denied
access to “incapacitating agents.” Thus, according to the
allegations in the complaint, Nickel did take some ac-
tion. It is unclear what more Nickel had the authority
to do. While she maybe could have communicated
Miller’s condition better, that is perhaps only negligence
and even gross negligence does not state a claim for
deliberate indifference. Yet, at the same time viewing
the allegations in the light most favorable to plaintiff,
it is plausible that Nickel’s omission of Miller’s condi-
tion and history from her transfer form constituted indif-
ference to the risk of serious harm. With respect to
Tobaisz, although his report suggests that he had not
reviewed Miller’s chart and file, presumably he would
have greater access to Miller’s chart and file from WRC
as a medical professional than the security defendants.
At the pleading stage, it is perhaps more prudent to
allow plaintiff to proceed with discovery on this claim.
Plaintiff also alleges sufficient facts to suggest that
the security defendants failed to take reasonable steps
to prevent the harm. According to the complaint, the
security officers failed to call for medical attention
despite finding Miller with no pulse and not breathing
on the floor of his cell with a white cloth wrapped around
his neck. Plaintiff further alleges that the security officers
10 No. 11-3233
waited to assemble an entry team and then applied re-
straints before removing the ligature from around
Miller’s neck.
Having established that plaintiff has alleged facts that,
if proven, show the defendants violated a constitutional
right, we must evaluate whether they would be entitled
to qualified immunity under the second prong of the
qualified immunity analysis; that the constitutional
right must be clearly established. The defendants urge
this Court to apply a very high threshold for this prong.
They argue for an examination of this prong in such
a specific manner that virtually nothing besides inten-
tionally harmful actions could be “clearly established.”
Under defendants’ analysis, for a right to be clearly
established there must be precedent holding that a
prisoner has a constitutional right specific to the
conduct alleged. However, the cases in this circuit have
understood the term “right” in a broader sense. For
example, in Cavalieri v. Shepard, we stated that the right
that Cavalieri was asserting is “the right to be free from
deliberate indifference to suicide.” 321 F.3d 616, 623 (7th
Cir. 2003) (citing Hall v. Ryan, 957 F.2d 402, 406 (7th Cir.
1992). Here, plaintiff asserts the same right. We there-
fore conclude that that right was clearly established in
2009 as it was in 1998. See also Sanville v. McCaughtry,
266 F.3d 724 (7th Cir. 2001).
For the reasons stated herein, we affirm the denial
of dismissal based on qualified immunity for the
defendants-appellants.
A FFIRMED.
No. 11-3233 11
M ANION, Circuit Judge, concurring in part, dissenting
in part. I concur with the court’s conclusion that, at this
early stage of the proceedings, defendants Nickel,
Tobiasz, Millard, and Severson should not be granted
qualified immunity. As I see it, however, the remaining
defendants (Bath, Boodry, Herbrand, Johnson, and Quade)
are entitled to qualified immunity. Therefore, I concur
in part and dissent in part.
Jessie Miller led a tragically short and troubled life.
Exposed to cocaine while in utero, Miller was born into
a broken home on December 3, 1987. He soon became a
ward of the state and spent his childhood years rotating
through 54 foster homes. Miller was also physically and
sexually abused and, not surprisingly, developed numer-
ous mental health issues. He jumped from the top of a
three-story building at age 16, which signaled the
genesis of what would become a veritable obsession
with suicide attempts and ideation. Those attempts
appeared to increase in frequency and severity after
Miller was incarcerated, culminating in his final,
successful attempt at the Columbia Correctional
Institute (“CCI”) on June 22, 2009.
As the court correctly notes, at this preliminary stage
we must determine whether the plaintiff has pleaded
“sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
court correctly recites the qualified-immunity standard;
that is, we must determine whether a constitutional right
12 No. 11-3233
was violated and whether the right in question was
clearly established at the time of the incident. Pearson
v. Callahan, 555 U.S. 223, 232, 236 (2009).
The plaintiff claims that the defendants subjected
Miller to cruel and unusual punishment under the Eighth
Amendment, as applied to the states by the Fourteenth
Amendment. Specifically, the plaintiff claims that the
defendants deprived Miller of proper supervision and
care. The Supreme Court has recognized that certain
deprivations fall under the cruel-and-unusual rubric. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). A depriva-
tion claim has two elements, one objective and one sub-
jective. First, the deprivation must be, objectively, suffi-
ciently serious. Second, the prison official’s subjective
state of mind must have been one of deliberate indif-
ference to an inmate’s health or safety. Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001).
There is no question that the first element was suffi-
ciently pleaded. We have held elsewhere that the risk of
suicide is a serious harm. Id. Therefore, where prison
officials deprive a prisoner who has known suicidal
tendencies of the necessary medical and preventive care,
and then that prisoner actually commits suicide, the
prisoner has suffered a serious harm and thus “clearly
satisfies the first element.” Id. The second element, how-
ever, requires a more in-depth analysis. We must look
at each defendant to determine whether the plaintiff
has sufficiently pleaded that they were deliberately
indifferent to Miller’s health and safety. In doing so, the
court must apply the following standard:
No. 11-3233 13
“[A] prison official cannot be found liable under
the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must
also draw the inference.”
Farmer, 511 U.S. at 837. The question, then, is whether
the plaintiff has sufficiently pleaded facts that support
allegations that each official subjectively knew that there
was a substantial risk that Miller would commit suicide,
yet failed to take reasonable steps to prevent him from
doing so. Sanville, 266 F.3d at 737.
As the court carefully notes, the plaintiff has pleaded
sufficient facts to show that Nickel and Tobiasz were
aware, or should have been aware, of Miller’s condition
and that they recognized his need for heightened care
and scrutiny. Therefore, the court correctly affirmed the
district court’s denial of qualified immunity. Perhaps
Millard and Severson did not have the same detailed
knowledge of Miller’s condition, but it is reasonable at
this stage of the proceedings to impute knowledge of
Miller’s suicidal tendencies to those two officers who
were on patrol in the area of the prison where Miller
was incarcerated—Housing Unit 7 of the Special Manage-
ment Unit—just before and at the time Miller’s suicide
occurred. I agree that the plaintiffs have pleaded
sufficient facts that, taken as true, could indicate a failure
of either or both of them to prevent Miller’s suicide.
14 No. 11-3233
Therefore, I join the court’s opinion to deny qualified
immunity to Millard and Severson at this preliminary
stage.
But it is clear from the pleadings and the attached
documentation that defendants Bath, Boodry, Herbrand,
Johnson, and Quade were not patrolling Housing Unit 7
on the night that Miller committed suicide. Rather, those
defendants were assigned to other areas of CCI and only
responded after Severson placed an emergency radio
call after he found Miller unresponsive in his cell. The
complaint contains no allegation that these response
team officers even knew of Miller’s existence—let alone
his suicidal tendencies.
Yet the court imputes the same knowledge to the re-
sponse team officers as it did to Millard and Severson
simply because the complaint alleges that the response
team officers knew or should have known of Miller’s
suicidal tendencies and the related warning signs. (Op.
at 8.) That is not a plausible allegation, and the court
should ignore it. We require “actual knowledge” on
the part of prison officials to satisfy the subjective compo-
nent of a deprivation claim. Sanville, 266 F.3d at 737.
We may impute actual knowledge to prison officials
“[i]f ‘the circumstances suggest that the defendant-official
being sued had been exposed to information con-
cerning the risk and thus must have known about it.’ ” Id.
(quoting Farmer, 511 U.S. at 842). But the complaint does
not point to any such circumstance in this case. The
court’s opinion would require prison security guards to
have knowledge of every single inmate’s health issues
No. 11-3233 15
in the entire facility—even those in areas of the facility
that the officers are not patrolling. Moreover, prison
security guards would need to gain that knowledge
almost immediately on an inmate’s transfer into the
facility (recall that Miller committed suicide a mere
three days after transferring to CCI). A fair reading of
the “actual knowledge” standard does not stretch a
security guard’s responsibility that far.
But even if the response team officers could be
charged with some knowledge of Miller’s suicidal ten-
dencies, the plaintiff still has not sufficiently pleaded
that those officers acted unreasonably. The essence of
the plaintiff’s allegations against the response team
officers is that the officers failed “to react quickly upon
seeing an inmate with a bed sheet wrapped around
his neck.” The pleadings and supporting documentation
do not support this conclusory assertion.
It is undisputed that Severson placed an emergency
radio call at 11:58 p.m. on June 22, 2009, informing
other officers that Miller was laying unresponsive in
his cell. Officers Quade, Bath, Herbrand, and Boodry
responded to Housing Unit 7 within a few minutes of
this call. On arrival, Bath briefly returned to the control
room to get a rescue knife while Boodry retrieved a plexi-
glass shield. Within four minutes of receiving the
radio call, the officers performed an “emergency cell
entry,” securing Miller’s body with restraints while
cutting away the ligature from around his neck. All of
this occurred without waiting for Johnson—the senior
officer—who arrived on the scene at 12:07 a.m.
16 No. 11-3233
The plaintiff complains that the officers took too long
to enter Miller’s cell, alleging that Bath’s and Boodry’s
retrieval of the rescue knife and plexi-glass shield caused
an undue delay in reaching the unresponsive Miller.
Further, the plaintiff alleges that the officers acted unrea-
sonably in their attempts to prevent Miller’s suicide
because they restrained Miller before cutting away the
ligature. Neither of these allegations, taken as true, sup-
ports the argument that the response team officers
acted unreasonably. As we have noted elsewhere, “[a]ll
that can be expected is that guards act responsibly
under the circumstances that confront them.” Riccardo v.
Rausch, 375 F.3d 521, 525 (7th Cir. 2004). This necessarily
requires guards to “discriminate between serious risks
of harm and feigned or imagined ones, which is not an
easy task given the brief time and scant information
available to make each of the many decisions that fill
every day’s work.” Id. Because the alleged time period
between the emergency radio call and the response
team’s entry into Miller’s cell was so short, and the offi-
cers’ alleged actions that caused the minor delays
were eminently reasonable and necessary to ensure the
officers’ (and Miller’s) safety, the plaintiff has failed
to plead sufficient facts that, even taken as true, could
plausibly show that the response team officers failed
to take reasonable steps to prevent Miller’s suicide.
In sum, I concur with the court’s conclusion that defen-
dants Nickel, Tobiasz, Millard, and Severson are not
entitled to a qualified-immunity defense at this stage of
the proceedings. But based on the foregoing analysis,
the response team officers—Bath, Boodry, Herbrand,
No. 11-3233 17
Johnson, and Quade—are entitled to qualified immunity.
Therefore, I respectfully dissent from that part of the
court’s opinion.
5-24-12