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October 13, 1995

EDITH M. VIERO, etc., Plaintiff,
DIANE BUFANO, et al., Defendants.

The opinion of the court was delivered by: SHADUR


 Edith Viero ("Viero"), as Special Administrator of the Estate of her son John Rosario, Jr. ("Rosario"), has sued Illinois Juvenile Court Probation Officer Diane Bufano ("Bufano") and four employees of the Illinois Department of Corrections ("Department")--Marcia Little ("Little"), Victor Brooks ("Brooks"), Mr. Carter ("Carter") and Mr. Porter ("Porter")--under 42 U.S.C. ยง 1983 ("Section 1983"). Viero's Complaint alleges that Rosario's constitutional rights were violated while he was an inmate at the St. Charles Illinois Youth Correctional Facility ("St. Charles"), resulting in his death by suicide.

 Bufano and Little have moved for dismissal of the Complaint under Fed. R. Civ. P. ("Rule") 12(b)(6), *fn1" claiming:


1. Viero states no claim under Section 1983 because she has not adequately alleged that Bufano and Little violated the Eighth Amendment. *fn2"


2. Bufano and Little are entitled to qualified immunity.


3. This action should be dismissed as an official capacity suit.


4. Bufano is entitled to absolute immunity under the doctrine of "quasi-judicial" immunity.


5. Viero has failed to state a claim under Illinois state law.

 For the reasons stated in this memorandum opinion and order, this Court denies Bufano and Little's motion in its entirety, and Viero is granted leave to amend the Complaint to clarify the fact that she is suing defendants in their individual rather than their official capacities.


 On December 17, 1992 14-year-old Rosario was confined for mental treatment and evaluation at Hartgrove Hospital ("Hartgrove") in Chicago, Illinois, initially diagnosed as suffering from major depression. Hartgrove's records reflect that Rosario "expressed suicidal ideation during psychological and social work evaluations" there and also that he and his grandmother "related an incident in which he planned to take his own life by stabbing himself." *fn3" Sometime in January 1993 Rosario was discharged from Hartgrove with a "guarded" prognosis, a prescription for 10 milligrams of ritalin three times a day and a diagnosis of attention deficit hyperactivity disorder, severe psychosocial stresses and poor adaptive functioning.

 Upon his discharge from Hartgrove, Rosario was placed in Department's custody and was taken to St. Charles. At the time of Rosario's intake Viero advised Little (an employee of Department located at St. Charles) of Rosario's mental history, medication needs and suicidal thoughts. Viero also told Bufano (Rosario's probation officer) of Rosario's mental history, diagnosis and condition and provided Bufano with his prescription medication.

 Despite those warnings both Bufano and Little acted with a "total indifference to [Rosario's] safety": *fn4"


1. "Bufano failed to take steps to assure [Rosario] received his medication, and to assure that [Rosario's] mental health history, diagnosis and suicidal ideation were adequately communicated to the Illinois Department of Corrections."


2. "Little failed to assure that [Rosario] received his medication, and to assure that he received adequate counseling and observation in view of his mental history and diagnosis."

 On March 2, 1993, while still in custody at St. Charles, Rosario committed suicide by hanging himself. That was a direct and proximate result of Bufano's and Little's failures.

 Section 1983 Claim

 Section 1983 actions require a two-tiered showing: (1) "the conduct complained of was committed by a person acting under color of state law" and (2) "this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States" ( Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)). Here Bufano and Little do not take issue with the allegation that each was acting under color of state law. What they do challenge is Viero's ability to establish any constitutional violation.

 For that purpose it is well to take a brief look at just which constitutional provisions are at issue. Although Complaint P11 speaks of the Fourth and Fourteenth Amendments, both sides' memoranda emphasize Eighth Amendment jurisprudence. And to the extent that those constitutional provisions may arguably implicate different standards, this Court cannot sort matters out in the present posture of the case. It is of course conventional wisdom that the Fourth Amendment protects arrestees, that the Fourteenth Amendment as such protects pretrial detainees and that the Eighth Amendment protects convicted prisoners. But the Complaint does not cabin Rosario within one of those categories, so it does not answer the question of which Amendment to apply.

 Fortunately the Complaint's substantive allegations provide a way out of that dilemma. Because a pretrial detainee's due process rights are at least as great as a convicted prisoner's Eighth Amendment rights ( Hall v. Ryan, 957 F.2d 402, 405 (7th Cir. 1992)) and because Rosario was clearly one or the other, the question of Rosario's specific status--and a more specific determination of that status' accompanying rights--need not now be addressed if Viero's claim can meet the higher Eighth Amendment burden.

 Any "prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate" ( Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1974 (1994))--including his or her indifference to the inmate's "serious medical needs" ( Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)) or the substantial risk of the inmate's suicide *fn5" -- violates the Eighth Amendment's prohibition of cruel and unusual punishment. To survive the present motion to dismiss, then, Viero must sufficiently allege (1) that Rosario presented a substantial risk of suicide or at least a serious medical need and (2) Bufano and Little were deliberately indifferent to that substantial risk or serious need.

 Suicide Risk

 As a special application of the already-stated Eighth Amendment principles, prison officials may not display deliberate indifference to a "strong likelihood" that an inmate will attempt suicide ( Torraco, 923 F.2d at 235-36 (1st Cir. 1991); Edwards v. Gilbert, 867 F.2d 1271, 1274-76 (11th Cir. 1989)). As a measure of risk, State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir. 1983) has contrasted "strong likelihood" with a "mere possibility."

 Deciding whether an inmate presents a substantial enough risk of suicide to qualify as a "strong likelihood" (rather than a "mere possibility" or some other lesser degree of risk) involves a case-by-case fact-specific determination (see Bell, 937 F.2d at 1343-44, citing cases and discussing facts that tend to establish an increased risk of suicide--such as prior psychological counseling, unusual behavior, prior suicide attempts, or expressions of suicidal tendencies). At this threshold pleading stage, however, the question is only whether it appears beyond doubt that Viero can prove no set of facts that would show Rosario presented a substantial risk of suicide.

 As already stated, Rosario was a 14-year-old with a history of severe psychological and psychosocial problems. Just a few months before his death he was confined for mental treatment and given a prescription for ritalin. And he had expressed his suicidal tendencies on at least two occasions.

 From those allegations it cannot be said that Viero will undoubtedly be unable to establish that Rosario presented a substantial suicide risk. That is enough to require denial of the Bufano-Little motion.

 Serious Medical Need

 Even if the Complaint had not sufficiently alleged the existence of a substantial suicide risk, it would still survive the current motion, for nearly two decades ago Estelle, 429 U.S. at 104 established that prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's "serious medical needs." Although Estelle originally used the phrase in the context of physical health needs, it has since been applied to mental health needs as well ( Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983)).

 To qualify for Eighth Amendment protection, a physical or mental health need must meet a threshold level of severity. For a brief discussion of the line between serious and non-serious medical needs, see this Court's opinion in Leslie v. Doyle, 868 F. Supp. 1039, 1045-46 (N.D. Ill. 1994). As Partee v. Lane, 528 F. Supp. 1254, 1260 (N.D. Ill. 1991) has put it:


That a medical need is "serious," for the purpose of a section 1983 action, can be established either by showing that a physician has diagnosed it as mandating treatment or by demonstrating that the condition was so obvious that even a lay person would recognize the necessity of a doctor's attention.

 In this instance the Complaint alleges that Rosario was diagnosed as suffering from several psychological disorders, he had recently been released from confinement for mental treatment and he was given a prescription for the drug ritalin. While the determination whether a physical or mental health need is serious may often involve some hair-splitting, Viero's allegations certainly suffice to survive a motion to dismiss.

 Deliberate Indifference

 That leads to the second half of the Estelle-Farmer formulation: the need to allege sufficiently that Bufano and Little displayed deliberate indifference to Rosario's plight ( Popham v. City of Talladega, 908 F.2d 1561, 1563-64 (11th Cir. 1990)(per curiam)). Farmer, 114 S. Ct. at 1978-80 defined that Eighth Amendment standard (dealt with there in the context of prison officials' duty to protect against inmate-on-inmate violence) to be the equivalent of the criminal law's recklessness concept. Thus deliberate indifference goes beyond mere negligence and requires a showing of conscious disregard of a known risk or condition. It contains both a subjective inquiry--did the official know *fn6" of the risk or condition (id. at 1979)?--and an objective inquiry--did the official take reasonable steps in response (114 S. Ct. at 1982-83)? Thus to be held liable Bufano and Little must have known of Rosario's serious medical needs or substantial suicide risk (or both) and must have acted in conscious disregard of that need or risk (or both) by failing to take adequate measures in response. *fn7"

 Again the Complaint's allegations are sufficient to meet the Farmer standard of deliberate indifference. Viero alleges that she personally advised both Bufano and Little of Rosario's mental history and medication needs and also advised Little that Rosario had suicidal thoughts. That ascribes knowledge of Rosario's psychological problems and suicidal tendencies directly to Little and at least inferentially to Bufano. *fn8"

 Viero also alleges that Bufano and Little did not take adequate measures in response. Both failed to assure that Rosario received his medication, Bufano did not communicate mental health information to Department and Little did not see to it that Rosario received adequate counseling and observation. Those allegations--especially in light of the fact that on a Rule 12(b)(6) motion all reasonable inferences are to be drawn in Viero's favor--are enough to preserve the Section 1983 claim against dismissal. *fn9"

 Qualified Immunity

 Bufano and Little also seek dismissal on qualified immunity grounds. That defense turns on the "objective legal reasonableness" of their actions ( Hall, 957 F.2d at 404). And actions are considered objectively unreasonable if the allegedly-violated right is "clearly established in a sufficiently particularized sense at the time of the actions at issue" (id.). In other words, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right" ( Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)).

 Here the "actions at issue" occurred between January and March 1993, when the law was already clear (as the earlier discussion shows) that prison officials violate the Eighth Amendment when they are deliberately indifferent to a strong likelihood that an inmate will commit suicide or to an inmate's serious medical needs relating to physical or mental health. While Bufano and Little admit in their motion and accompanying memoranda that this general principle was clearly established they argue that--in the context of the specific factual situation facing them--its contours were not sufficiently particularized to put a reasonable person on notice that their actions amounted to a violation.

 But that position distorts the teaching of Anderson and its progeny. It is the essential equivalent of urging that the decided cases were white-horse cases while this is a black-horse case--a distinction without a difference. Here the Complaint sufficiently alleges (1) that Bufano and Little knew enough about Rosario's serious mental health needs and his substantial suicide risk to require them to respond and (2) that they nevertheless acted in conscious disregard of--in Eighth Amendment parlance, they were deliberately indifferent to--Rosario's serious medical needs and substantial suicide risk. That is enough to strip them of any putative qualified immunity because, as Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992) put it:


A finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of the inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law.

 Bufano and Little are not entitled to qualified immunity at this stage of the litigation.

 Official Capacity

 Bufano and Little also ask for dismissal because the Complaint purportedly seeks damages against them in their official capacities, a claim barred by the Eleventh Amendment. In support they invoke the bright-line rule announced in Kolar v. County of Sangamon, 756 F.2d 564, 568-69 (7th Cir. 1985) that where a plaintiff does specify that state-actor defendants are being sued individually, it will be presumed that they are being sued in their official capacities.

 While that bright-line approach provides a useful means for weeding out claims that impermissibly seek to tap the state treasury, it is most often a trap for plaintiffs' counsel who really want to target individually named defendants but are unaware of the Kolar doctrine. After all, plaintiffs must perforce identify defendants as public officeholders to establish that they are state actors in order to bring Section 1983 into play at all. Thus Kolar, if applied blindly and rigorously, *fn10" may cause a Section 1983 complaint to carry its own inadvertent death warrant. This Court of course honors and applies Kolar, but in the present situation--where P. Mem. 5-6 says that this action (filed originally in the Circuit Court of Cook County under state, rather than federal, pleading rules) was intended as an individual action--the appropriate course is to let the Complaint stand on condition that Viero's counsel file an amendment to confirm that in writing.

 Bufano and Quasi-Judicial Immunity

 As quoted earlier, Complaint P11(a) alleges that Bufano "failed to take adequate steps to assure [Rosario] received his medication, and to assure that [Rosario's] mental health history, diagnosis and suicidal ideation were adequately communicated to the Illinois Department of Corrections." Juvenile Court probation officer Bufano claims that because she obtained information about Rosario in the course of performing a social investigation for purposes of a judicial dispositional hearing, she is entitled to absolute immunity because she was performing a function "intimately associated with the judicial phase of the criminal process." For that proposition she points to Spaulding v. Nielsen, 599 F.2d 728, 729 (5th Cir. 1979)(per curiam).

 Although absolute immunity is generally not available to probation officers, our Court of Appeals (like the Fifth Circuit in Spaulding) recognizes a "quasi-judicial" immunity for "non-judicial officials whose official duties have an integral relationship with the judicial process" ( Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986)). But the burden of establishing entitlement to absolute immunity rests on its proponent ( Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 124 L. Ed. 2d 391, 113 S. Ct. 2167, 2169 & n.4 (1993); Walrath v. United States, 35 F.3d 277, 281 (7th Cir. 1994)), and Bufano does not come even close to meeting that Burden.

 It is difficult to see how Bufano's failure to assure that Rosario received his medication and her failure adequately to communicate information as to Rosario's mental health has anything to do with the judicial process. *fn11" Merely because she was also preparing a report for use at a dispositional hearing, she is not shielded from the responsibility of conveying to Department the critical information that she had about Rosario's mental and physical health. *fn12"

 State Law Claim

 Bufano and Little also argue, citing Dezort v. Village of Hinsdale, 35 Ill. App. 3d 703, 711, 342 N.E.2d 468, 474 (2d Dist. 1976), that to state a claim under Illinois law the Complaint must allege that Rosario was "incapable of exercising ordinary care for his own protection." Dezort imposes no such requirement. *fn13" Even apart from the fact that Illinois pleading rules do not apply in this federal court although Illinois substantive law provides the rules of decision ( Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965)), Bufano and Little are wrong under Illinois law as well.

 They also support their motion to dismiss by making a cryptic argument about contributory negligence as a bar to recovery. This Court need not address the validity of that contention, for by definition no such potential affirmative defense taints the validity of a complaint.


 As stated at the outset of this opinion, the Bufano-Little motion to dismiss is denied on all grounds. Viero is granted leave to amend the Complaint on or before October 23, 1995 to confirm that this is an individual-capacity lawsuit. In the meantime (and understanding that such a nominal amendment, involving only the prayer for relief, is in the works), Bufano and Little are ordered to answer the existing Complaint on or before that same October 23 date. This action is set for a status hearing at 9 a.m. November 8, 1995.

 Milton I. Shadur

 Senior United States District Judge

 Date: October 13, 1995

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