Estate James Boncher v. Brown County ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1447
Estate of James H. Boncher,
by Bernice Boncher, Special
Administrator, et al.,
Plaintiffs-Appellants,
v.
Brown County, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 1217--Rudolph T. Randa, Judge.
Argued September 5, 2001--Decided November 27, 2001
Before Flaum, Chief Judge, and Posner and
Ripple, Circuit Judges.
Posner, Circuit Judge. James Boncher
committed suicide in a cell of the Brown
County (Wisconsin) jail, and this suit,
brought by his estate under 42 U.S.C.
sec. 1983, charges that the jail
officials, and the County itself, were
deliberately indifferent to the risk of
Boncher’s suicide and so deprived him of
his life without due process of law. Bell
v. Wolfish, 441 U.S. 520, 535 n. 16
(1979); Salazar v. City of Chicago, 940
F.2d 233, 239-40 (7th Cir. 1991). The
district court granted summary judgment
for the defendants.
Boncher had been arrested after a
domestic altercation. He had a long
history of alcoholism and had attempted
suicide at least three times, but this
history was not known to the arresting
officers or the personnel of the jail.
Nor did they know that he had often told
his ex-wife that he planned to kill
himself in jail so that a lawsuit could
be filed on behalf of his children.
Interviewed during the booking process,
Boncher answered "yes" when asked whether
he had mental or emotional problems, and
to the follow-up question whether he had
ever attempted suicide answered, "Yeah, a
couple days ago, but I am fine now." He
said this in what the officers thought a
joking manner--his entire manner since
the arrest had been jovial and
cooperative, and the officers thought him
a "happy drunk"--and when they followed
up his answer by asking him whether he
had any suicidal inclinations, he laughed
and said he was "fine." One officer said,
"It seemed like he was joking around and
that’s the impression that we got." So
they put him in a regular cell rather
than the jail’s suicide-watch cell. He
died within 45 minutes of being placed in
the cell by hanging himself with a
bedsheet.
The intake officers who decided that
Boncher was not a suicide risk are not
defendants. The claim is that the people
running the jail, including the county
sheriff, who is acknowledged to be Brown
County for purposes of this case because
he had the final authority in the
county’s governance structure for
managing the jail, McMillian v. Monroe
County, 520 U.S. 781, 784-85 (1997);
Pembaur v. City of Cincinnati, 475 U.S.
469, 483-84 (1986) (plurality opinion),
were deliberately indifferent to the risk
of suicide. As we noted recently, jail
suicides are frequent relative to
suicides of free people or even of prison
(as distinct from jail) inmates. And the
risk is concentrated in the early days
and even hours of being placed in jail,
before the inmate has had a chance to
adjust to his dismal new conditions.
Jutzi-Johnson v. United States, 263 F.3d
753, 757 (7th Cir. 2001). Jail managers
who decided to take no precautions
against the possibility of inmate
suicide--to have no policy, for example
no suicide-watch option--would be guilty
of deliberate indifference in the
relevant sense, Manarite v. City of
Springfield, 957 F.2d 953, 957 (1st Cir.
1992); Greason v. Kemp, 891 F.2d 829, 839
(11th Cir. 1990); they would be ignoring
a known and serious risk of death of
persons under their control for whose
safety they are responsible.
The risk is claimed to have been
particularly acute here because there had
been five suicides in the Brown County
jail in the five years preceding
Boncher’s suicide. According to the
plaintiffs’ expert, Lindsay Hayes, a
criminologist who specializes in the
study of jail suicide, this number of
suicides was unusually high. He is a
reputable criminologist, but in this
case, as in two others we’ve discovered
(Thacker v. Franklin County, No. 94APE01-
01, 1994 WL 283672, at *4 (Ohio App.
1994) ("Hayes’ affidavit generally lacks
specificity and fails to indicate the
facts underlying his conclusions"), and
Boyd v. Harper, 702 F. Supp. 578, 582
(E.D. Va. 1988) (conclusion didn’t
support proposition for which it was
offered)), his evidence was useless and
should have been excluded under the
Daubert standard. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-
95 (1993); Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999); Elliott v.
CFTC, 202 F.3d 926, 934 (7th Cir. 2000);
cf. Mid-State Fertilizer Co. v. Exchange
National Bank of Chicago, 877 F.2d 1333,
1339 (7th Cir. 1989). It is not the
number of suicides that is a meaningful
index of suicide risk and therefore of
governmental responsibility, Frake v.
City of Chicago, 210 F.3d 779, 782 (7th
Cir. 2000); Manarite v. City of
Springfield, supra, 957 F.2d at 958, but
the suicide rate, Horn by Parks v.
Madison County Fiscal Court, 22 F.3d 653,
661 (6th Cir. 1994); and it is not even
the rate by itself, but rather the rate
relative to the "background" suicide rate
in the relevant free population (the
population of the area from which the
jail draws its inmates) and to the rate
in other jails. No evidence was presented
that would have enabled an estimate of
any of these rates--not even the
population of Brown County was put into
the record. Hayes admitted at his
deposition that he had neither conducted
nor consulted any studies that would have
enabled him to compare the Brown County
jail suicide rate with that of the free
population in the county or that of other
jails.
There was still another oversight--
failure to allow for normal variance. It
would not be sound to condemn a jail
administrator if the rate of suicide in
his population was within one or two
standard deviations of the rate
elsewhere, for that little variance might
well be due to chance, or at least to
factors over which he had not control.
Every statistical distribution has an
upper tail, and there is no
constitutional principle that whoever is
unlucky enough to manage the prisons in
the upper tail of the distribution of
suicides must pay damages.
The deficiencies of Hayes’s deposition
compel us to treat Brown County’s jail as
one of average suicide risk and ask
whether there is evidence from which it
can be inferred that the jail management
was deliberately indifferent to that
risk. The plaintiffs emphasize the lack
of training of the intake officers and
the inadequacy of the checklist that they
used in interviewing newly booked-in
prisoners to determine whether they are
suicide risks. The officers had only the
most general training in recognizing a
suicide risk, and this made them heavily
dependent on the form. The form is poor,
because while it contains a box to check
if the prisoner has mental or emotional
problems, the only follow-up question is,
has he ever attempted suicide? Missing is
any recognition of the possibility that
the inmate might be about to make his
first attempt (presumably not all those
jail suicides that we’ve mentioned are of
previous attempters, though we have no
information on the point) and that it
might succeed. One would think at a
minimum that the inmate who admitted to
mental or emotional problems would be
asked what they were. If he answered that
he suffered from clinical depression,
that would alert the officers to a
possible suicide risk, since clinical
depression is a significant risk factor
for suicide.
All this said, we don’t think it adds up
to evidence of deliberate indifference,
especially in light of the fact that the
Brown County jail is conceded to have
been in compliance with the state’s
minimum standards for suicide prevention
by jails. (Not that violation of a state
law would demonstrate a denial of due
process, e.g., Novack ex rel. Turbin v.
County of Wood, 226 F.3d 525, 531-32 (7th
Cir. 2000), or compliance with state law
be an automatic defense, since the state
law might not comply with constitutional
standards.) There is no suggestion that
anyone desired Boncher’s suicide or any
doubt that the intake officers believed
that he was joking about a previous
suicide attempt and that he was not a
serious suicide risk. Sanville v.
McCaughtry, 266 F.3d 724, 737-38 (7th
Cir. 2001), is therefore distinguishable,
because there, amidst other evidence of
profound mental disturbance, the
plaintiff’s decedent said he was
suicidal, rather than denying it, as
Boncher denied it, as did the plaintiff’s
decedent in Estate of Novack ex rel.
Turbin v. County of Wood, supra, where we
affirmed summary judgment for the
defendants, 226 F.3d at 528, 532; similar
cases are Heggs v. Grant, 73 F.3d 317,
320-21 (11th Cir. 1996) (per curiam), and
Estate of Cartwright v. City of Concord,
618 F. Supp. 722, 728 (N.D. Cal. 1985),
aff’d, 856 F.2d 1437 (9th Cir. 1988). The
defendants simply were not alerted to the
likelihood that Boncher was a genuine
suicide risk. Cf. Jutzi-Johnson v. United
States, supra, 263 F.3d at 756-58.
The plaintiff is left to argue that the
defendants exhibited deliberate
indifference to suicide risk by failing
to train the intake officers or adopt a
better intake questionnaire. It is not
clear what good the better training would
have done, at least in this case; the
basic judgment the intake officers had to
make was whether Boncher was joking, and
that is not a judgment likely to be much
assisted by special training. Cf. Estate
of Novack ex rel. Turbin v. County of
Wood, supra, 226 F.3d at 532; Horn by
Parks v. Madison County Fiscal Court,
supra, 22 F.3d at 661. The form is
defective, but because of a rather subtle
problem--the failure to specify probing
follow-up questions for inmates who
indicate mental or emotional problems.
That is a serious deficiency and one that
ought to be corrected, if only to shield
the defendants from liability for common-
law negligence in suits under state law.
But like other courts to consider the
issue, we don’t see how such a slip, at
worst careless, could be proof evidence
of something much worse, a deliberate
failure to deal with a known high risk of
death. See Yellow Horse v. Pennington
County, 225 F.3d 923, 927-28 (8th Cir.
2000); Heggs v. Grant, supra, 73 F.3d at
320-21; Horn by Parks v. Madison County
Fiscal Court, supra, 22 F.3d at 661; Rel
lergert by Rellergert v. Cape Girardeau
County, 924 F.2d 794, 797 (8th Cir.
1991); Belcher v. Oliver, 898 F.2d 32,
34-35 (4th Cir. 1990); Molton v. City of
Cleveland, 839 F.2d 240, 246 (6th Cir.
1988).
There was no constitutional violation,
and so there is no occasion to consider
the individual defendants’ defense of
qualified immunity. Estate of Phillips v.
City of Milwaukee, 123 F.3d 586, 597 (7th
Cir. 1997).
Affirmed.