Bradich, Delores v. City of Chicago ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3626
DELORES BRADICH, Administrator of
the Estate of Melvin Bradich,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 7998—Charles R. Norgle, Judge.
____________
ARGUED JUNE 7, 2005—DECIDED JULY 1, 2005
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Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. When police arrested
Melvin Bradich on October 23, 1999, he was drunk—fitting,
as the reason for his arrest was a warrant for driving while
intoxicated. He was no stranger to the lockup; this was his
twenty-fourth arrest. Police booked him and put him in a
cell at the stationhouse, pending his arraignment and
transfer to the county jail. At this point matters departed
from routine, because within 90 minutes Bradich had
hanged himself. Officers could not revive him, nor could an
emergency medical team dispatched by the fire department.
2 No. 04-3626
Delores Bradich, his mother and the administrator of his
estate, contends that the arresting officers, the lockup
keepers, and the City of Chicago all violated his constitu-
tional rights by failing to protect him from the risk of
suicide and react properly once they discovered the hang-
ing. The district court granted summary judgment in
defendants’ favor, ruling that the Estate has not established
that any of them had exhibited deliberate indifference to
Bradich’s mental-health needs before the hanging or his
parlous condition afterward. 2004 U.S. Dist. LEXIS 2478(N.D. Ill. Feb. 17, 2004).
Many of the Estate’s claims can be dispatched swiftly.
The arresting officers did not violate any of Bradich’s rights
by taking him into custody on an outstanding warrant and
handing him over at the lockup for detention. The lockup
keepers did not display deliberate indifference to a substan-
tial risk of suicide by putting Bradich in a regular cell, and
allowing him to keep his civilian clothes, rather than
placing him on suicide watch or sending him to a hospital
until he sobered up. (On the constitutional deliberate in-
difference standard for pretrial detainees’ medical needs,
see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Matos v.
O’Sullivan, 335 F.3d 553, 556-57 (7th Cir. 2003).) Bradich
had been arrested many times before yet never attempted
to injure himself, and he did not have a mental-health
history implying any disposition toward suicide. That the
lockup had experienced two (unsuccessful) suicide attempts
by other prisoners during the preceding month does not
imply that Bradich posed any elevated risk of suicide.
The Estate contends that intoxication substantially in-
creases the suicide risk but offers no medical or psychiatric
evidence to support that proposition. Bradich may have
taken barbiturates as well as alcohol (he had some tablets
in his pocket when arrested, though no drugs other than
alcohol were detected in his blood after his death), but
again the Estate does not offer data or expert testimony
No. 04-3626 3
suggesting that the combination predisposes to suicide, let
alone that the lockup keepers knew of this enhanced risk.
We canvassed some of the data in Jutzi-Johnson v.
United States, 263 F.3d 753 (7th Cir. 2001), and need not
repeat what was said there. This is a weaker case (with
respect to the events that preceded the hanging) than was
Jutzi-Johnson, where we held even a negligence standard
had not been met.
As for Chicago: municipalities are not vicariously liable
under 42 U.S.C. §1983 for their employees’ errors. See
Monell v. New York City Department of Social Services, 436
U.S. 658 (1978). They are liable only for their own policies.
The record in this case shows that some of these policies
were not followed—for example, the City’s rules called for
close monitoring of the cells (intoxicated prisoners must be
checked in person or by closed-circuit video every 15
minutes), and the lockup keepers did not follow this rule.
The record suggests that they were playing cards and
watching television instead of watching the monitors that
displayed what the prisoners were doing. None of Chicago’s
policies is constitutionally inadequate; indeed, the Estate
does not take issue with any of them. Its argument, rather,
is that Chicago did not ensure that all of its employees
followed all of its policies all of the time. That theory of
liability is incompatible with Monell.
The Estate does not argue that the City systematically
fails to enforce its written policies and instead maintains
informal policies that violate the Constitution. The record
does not contain data implying that the suicide rate in
Chicago’s lockups is abnormally high. The Estate concen-
trates on the facts of this case, and the employment history
of the lockup keepers on duty, rather than anything from
which an informal policy of general applicability could be
inferred. That one lockup keeper was not retrained ac-
cording to the City’s policies is a shortcoming in the enforce-
4 No. 04-3626
ment of sound policies, not an independent violation of the
Constitution. See Collins v. Harker Heights, 503 U.S. 115,
122-24 (1992).
What happened after the hanging, however, has more po-
tential to produce liability. Officers Hilbring, Simmons, and
Walker were on duty in the stationhouse. Simmons and
Walker testified by deposition that they noticed Bradich
hanging about 6:15 p.m. and ran to his cell. According to
their depositions, Bradich appeared to be alive. They had
trouble opening the cell door because of the way Bradich had
tied the ligature. Simmons obtained a knife from the
kitchen, and the officers used this to free Bradich from the
ligature and open the cell door. Simmons and Walker were
joined by Captain Hilbring, the watch commander, who had
come down from the second floor in response to the commo-
tion. Simmons shouted at, slapped, and shook Bradich in an
attempt to restart his breathing. (Of the three, only Hilbring
has training in cardio-pulmonary resuscitation, and Hilbring
did not use his knowledge; shouting, slapping, and shaking
are not CPR techniques.) Only after these efforts failed did
Walker call for medical personnel. The ambulance was
dispatched at 6:25 P.M., implying that the trio at the lockup
had waited ten minutes to summon assistance. By the time
paramedics reached his cell at 6:34 P.M., Bradich was dead.
These times could be inaccurate. But on summary judg-
ment, when the non-moving party receives the benefit of all
reasonable inferences, see Hunt v. Cromartie, 526 U.S. 541(1999), we must assume that the officers took ten minutes
to seek help—and that they wasted much of that interval.
Defendants describe themselves as frantically trying to
save Bradich during those ten minutes, and this is why the
district judge concluded that deliberate indifference had not
been established. Maybe it was negligent of officers who did
not know (or did not use) CPR techniques to make a rescue
attempt, the district judge thought, but the officers were
No. 04-3626 5
doing their best. The problem with this view is that it draws
inferences in the officers’ favor rather than the Estate’s.
Why did it take all three officers to provide unhelpful as-
sistance? Two might have done what they could, while the
third phoned for help (which would take only a minute) and
then rejoined the others. Why did two officers who lacked
CPR training think that they should shout at a hanging
prisoner rather than call for help? Why did the officer with
CPR training not use his skills? The Estate’s preferred
answer is that the three officers are dissembling about their
activities during the critical ten minutes. As the Estate sees
things, delay in calling for outside assistance was a deliber-
ate choice, not a side effect of devoted rescue attempts.
The Estate believes that the three officers spent most of
the ten minutes altering their log books and tidying the cell
to disguise their violations of required procedures. Medical
personnel found Bradich wearing a T-shirt that the lockup
keepers said had been the ligature; this was unusual, to say
the least. Perhaps, the Estate suggests, the officers disposed
of the actual ligature and other items to hide the fact that
they had allowed Bradich too much clothing and other
forbidden things in his cell. In this court, defendants say
that Bradich had at least three T-shirts, two of which he
used to make the ligature; but why was all this clothing in
his possession? Some changes were made in the log books
during the ten minutes; defendants concede that they noted
the suicide attempt in their logs, and if they took the time to
do that (itself a violation of regulations) maybe they erased
or rearranged other entries to cover the traces of improper
conduct following Bradich’s arrest. Protecting one’s employ-
ment interests while an inmate chokes to death would
exemplify deliberate indifference to serious medical needs.
See Tlamka v. Serrell, 244 F.3d 628 (8th Cir. 2001); Ellis v.
Washington County, 198 F.3d 225 (6th Cir. 1999). That
failing would lead to liability if an earlier call for help could
have saved Bradich’s life, a question on which the evidence
6 No. 04-3626
is skimpy. And if the Estate is right about what happened
during the ten minutes, the lockup keepers are not entitled
to qualified immunity: no reasonable officer could think that
the Constitution allowed him to cover up his own miscon-
duct at the expense of a prisoner’s life.
Further proceedings may vindicate the lockup keepers’
position that the delay was much less than ten minutes
and that they provided well-meaning, if inept, care in the
interim, but matters are too uncertain to allow summary
judgment. The judgment of the district court with respect to
Hilbring, Simmons, and Walker is vacated, and the case is
remanded for trial. With respect to all other defendants the
judgment is affirmed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-05