Joann Cavalieri, as Plenary Guardian of the Estate of Steven Cavalieri, a Disabled Person v. Donald Shepard

MANION, Circuit Judge,

dissenting.

The threshold inquiry we must undertake in a qualified immunity analysis is whether plaintiffs allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). I disagree with the court’s conclusion that the facts most favorable to the plaintiff are sufficient to allow a jury to conclude that Officer Shepard acted with deliberate indifference or with a reckless disregard for Steven Cavalieri’s safety while Steven was detained at the Champaign County Correctional Facility (CCCF). Even if Shepard violated Steven’s constitutional right by not informing CCCF of his suicide risk, he may nevertheless be shielded from liability for civil damages if his actions did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A constitutional right is clearly established when its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In this case, Shepard did not have reasonable notice at the time of Steven’s incarceration that the conduct alleged by the plaintiffs was unconstitutional. I therefore respectfully dissent.

The court finds that because Shepard failed to communicate Steven Cavalieri’s possible suicide risk to intake officials at the CCCF, a jury could find that Shepard was deliberately indifferent under the Eighth and Fourteenth Amendments. Under the deliberate indifference standard Mrs. Cavalieri must allege facts that show that Shepard was aware of Steven’s suicide risk and nevertheless acted or failed to act with deliberate indifference to a substantial risk of serious harm to Steven’s health or safety. Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). See also West v. Waymire, 114 F.3d 646, 651 (7th Cir.1997) (“plaintiff must prove that the defendant, knowing that the plaintiff (or someone) was at serious risk of being harmed, decided not to do anything to prevent that harm from occurring even though he could easily have done so”) (emphasis added). Because suicide is a serious medical risk, the alleged facts in this case must show, under the deliberate indifference standard, that Shepard demonstrated a “reckless disregard for the known serious medical need, by inaction or woefully inadequate action.” Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir.1998); Sanville v. McCaughtry, 266 F.3d 724, 740-41 (7th Cir.2001) (holding that “[t]o be liable under the Eighth Amendment for an inmate’s suicide, ‘a prison official must be cognizant of the significant likelihood that an inmate may imminently seek to take his own life and must fail to take reasonable steps to prevent the inmate from performing this act’ ” (citation omitted)). An official may not be liable for mere negligence. Farmer, 511 U.S. at 836, 114 S.Ct. 1970. See also, Soto v. Johansen, 137 F.3d 980, 981 (7th Cir.1998) (“mere negligence or even gross negligence does not constitute deliberate indifference”) (internal quotations and citation omitted). Moreover, officials may also escape liability “if they responded reasonably to the risk, even if *625the harm ultimately was not averted.” Farmer, 511 U.S. at 844, 114 S.Ct. 1970. However, by labeling as deliberate indifference Shepard’s failure to communicate Steven’s mother’s and girlfriend’s concerns over his suicide risk to CCCF intake officials, the court has equated deliberate indifference with negligence. It is undisputed that Shepard did in fact take responsive action to Steven’s emotional distress, but the court incorrectly holds that a jury could find that Shepard violated Steven’s constitutional rights because he did not follow a better course of action.

The facts most favorable to Mrs. Cavali-eri cannot establish that Shepard was deliberately indifferent to Steven Cavalieri’s risk of suicide. Instead, under the “woefully inadequate” standard, Hudson, 148 F.3d at 863, Shepard’s rather intensive involvement with Steven should reduce rather than increase his liability for deliberate indifference. Nevertheless, it appears that court faults Shepard for being too attentive by remaining personally involved with the case.

After he arrived for duty, Shepard was sent to the location where Steven had just been captured after the kidnaping and three-hour standoff with the SWAT team. As the plaintiffs brief notes, “A SWAT operation is a major event, and one involving hostages did not occur often in Cham-paign.” Clearly everyone at the correctional facility was fully aware of the crisis, as well as Shepard when he conducted a one-hour interview with Steven at the city jail after he was first arrested. Steven was then transferred to the CCCF, where he had been incarcerated under suicide watch only weeks earlier.

After the arrest, Shepard participated in an interview with the victim, Stephanie Rouse, where she spoke of Steven’s suicide threats. He also interviewed Steven’s mother where she informed him that she wanted to make arrangements for Steven to see a counselor. Mrs. Cavalieri also informed Shepard that during Steven’s stay at CCCF one month earlier he was on suicide watch. Shepard placed a subsequent call to Steven at the CCCF at 11:00 a.m. where he informed Steven that his mother would be contacting him about counseling. During this last discussion, Steven told Shepard that he was fine and looking forward to seeing his mother. Finally, Shepard directed Mrs. Cavalieri to County Medical Health so that she could arrange for Steven to speak to a counselor. When Shepard called the CCCF three hours later to inform them that Rouse had complained that Steven was making harassing calls to her, he was informed that Steven had attempted suicide.

This hands-on activity on Steven’s behalf cannot be described as deliberate indifference to Steven’s condition. No doubt, in Shepard’s two calls to the CCCF he had ample opportunity to inform someone that he thought Steven might pose a suicide risk. Yet one of those calls was specifically placed to Steven personally in order to check on his welfare and inform him about Mrs. Cavalieri’s ongoing efforts to secure counseling. As a matter of law, Shepard’s time, attention and concern were reasonable responses to Cavalieri’s suicide risk and therefore cannot be described as “woefully inadequate.” See Perkins v. Lawson, 312 F.3d 872, 875-76 (7th Cir.2002) (finding no deliberate indifference when steps were taken to obtain treatment for inmate); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.1983) (finding officers had not acted with deliberate indifference because, in part, they had taken reasonable actions to prevent suicide).1 When examining a claim for deliberate indifference we are obligated to examine *626the totality of the circumstances surrounding the alleged actions or inaction. Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir.1999); see also Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir.1996) (holding that isolated instances of neglect “cannot support a finding of deliberate indifference”)- At most it was a negligent act for Shepard not to inform CCCF (where Steven had been under suicide watch only a month earlier) of Steven’s current suicide risk. See Lewis v. Richards, 107 F.3d 549, 553-54 (7th Cir. 1997) (stating that “[e]xercising poor judgment, however, falls short of meeting the standard of consciously disregarding a known risk to his safety”). Under the court’s analysis, would Shepard be off the hook had he not shown continued concern for Steven’s case and not spent additional time with the victim and his mother? Had Shepard simply called CCCF and said that Steven was a possible suicide risk, he apparently would have been dismissed from the case with the other defendants.

Deliberate indifference cannot rest on negligent actions or inactions, but must instead rest on reckless indifference to the plight of an inmate. See Mathis v. Fairman, 120 F.3d 88 (7th Cir.1997) (holding that prison officials could not be held liable under the reckless disregard standard for a prisoner’s suicide when their actions were neghgent at most). A single example of alleged neglect, based on choosing one reasonable course of action over another, will not create a jury question as to deliberate indifference, especially when the court has previously held that “showing deliberate indifference through a pattern of neglect entails a heavy burden.” Dunigan, 165 F.3d at 591 (7th Cir.1999) (emphasis added). The standard threshold for “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). By equating possible negligence with deliberate indifference the court has impermissi-bly lowered the bar for prisoner claims under the Eighth and Fourteenth Amendments.

Even if we were to proceed with the qualified immunity analysis it has not been established that under the facts of this *627case, “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. Under the standard for liability for deliberate indifference described in West v. Waymire, it is clear that Shepard did, in fact, do something to alleviate the risk of Steven’s suicide. West, 114 F.3d at 651. Under this standard, and the wealth of case law equating deliberate indifference with inaction or woefully inadequate action, supra n. 1, Shepard would not have understood that his conduct was unlawful. The court cites Viero v. Bufano, 901 F.Supp. 1387 (N.D.Ill.1995), as standing for the proposition that adequate measures in response to a suicide risk necessarily include communicating such risk to personnel at the correctional facility. In a subsequent proceeding in that same case, the district court noted that the officer did much less than just fail to communicate the prisoner’s substantial risk of suicide to the committing institution. Viero v. Bufano, 925 F.Supp. 1374, 1384 (N.D.Ill.1996). The officer also failed to take the prisoner’s Ritalin prescription from her mother, and, in short, failed to “take any such reasonable steps in response” to the victim’s medical needs. That is not what occurred in this case. The court also cites Egebergh v. Nicholson, 272 F.3d 925, 927-28 (7th Cir.2001) as relevant to the proposition that an officer must communicate all known medical information to the custodial entity. However, in Egebergh the officers in question were not liable for deliberate indifference because they failed to communicate to Cook County Jail personnel that the diabetic prisoner had- future medical needs. Id. Rather, the court stated that “a jury could infer that they knew that depriving him of his morning shot [when he was in the offending officer’s sole custody] would endanger his health and that they deprived him of it for no better reason than to get him out of the police station.” Id. at 928. I agree with the court that on the date of Cavalieri’s nearly successful suicide attempt it was clearly established that a police officer on duty could not act with deliberate indifference toward a pretrial detainee who the officer believed was a substantial suicide risk. Estate of Cole v. Fromm, 94 F.3d 254, 258 (7th Cir.1996). However, under this standard, an officer is only required to act reasonably, and as a matter of law, Shepard took reasonable actions in this case.

Obviously if a jury believes Shepard when he testifies that he honestly believed, after talking with Steven, that he was not a suicide risk at that time, he will not be found to be deliberately indifferent. But before going to a jury the plaintiff must allege that Shepard knew of the risk (not just should have known), knew that he should inform CCCF personnel of the risk, but deliberately or recklessly failed to do so. Instead, the plaintiff has at most alleged a negligent failure to inform CCCF of the suicide risk. That is not enough. Shepard should have been granted summary judgment along with the other named defendants.

. Deliberate indifference has been found when the state actor did nothing or next to *626nothing in response to a substantial suicide or health risk. See Egebergh v. Nicholson, 272 F.3d 925, 927-28 (7th Cir.2001) (holding that a jury could infer that police officers were deliberately indifferent to insulin dependent patient when they transported him to another jail without administering an insulin shot); Sanville v. McCaughtry, 266 F.3d 724, 740-41 (7th Cir.2001) (holding that plaintiff had stated a claim of deliberate indifference as to prison guards when they did nothing for several hours in response to suicidal prisoner's covering of the window of his prison cell); Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999) (holding that where prison officials knew about periodic substantial deprivations of food and medicine to a prisoner and did nothing for almost two years to remedy the situation, the prisoner met his burden to show an inadequate response). See also, Jacobs v. West Feliciana Sheriff’s Dept., 228 F.3d 388, 395-99 (5th Cir.2000) (holding that sheriff and deputy could be found to be deliberately indifferent to plaintiff’s suicide risk when they took some preventative measures but those measures were obviously inadequate and therefore not objectively reasonable); Woodward v. Myres, 2002 WL 31744663 (N.D.Ill. 2002) (finding that plaintiff had alleged sufficient facts to establish that intake nurse, sheriff and correctional facility doctor had acted with deliberate indifference when no actions were taken protect suicidal detainee); Wilson v. Genesse Co., 2002 WL 745975 (E.D.Mich. 2002) (finding arresting officers could be found deliberately indifferent when they did nothing in response to arrestee’s substantial suicide risk); Viero v. Bufano, 925 F.Supp. 1374, 1384 (N.D.Ill. 1996) (finding that a fact question existed as to officer’s deliberate indifference when officer did not lake any reasonable steps in response to suicide risk of transferee).