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VIERO v. BUFANO

May 15, 1996

EDITH M. VIERO, Special Administrator of the Estate of John Rosario, Jr., deceased, Plaintiff,
v.
DIANE BUFANO, MARCIA LITTLE, VICTOR BROOKS, WILLIAM CARTER and DUANE PORTER, Defendants.



The opinion of the court was delivered by: SHADUR

 On March 2, 1993 14 year old John Rosario, Jr. ("Rosario") committed suicide while in the custody of the Illinois Department of Corrections ("Department") at its St. Charles Youth Correctional Facility ("St. Charles"). Edith Viero ("Viero"), Rosario's mother and the Special Administrator of his Estate, has filed this action under 42 U.S.C. ┬ž 1983 ("Section 1983"), *fn1" contending that Rosario's suicide stemmed from a violation of his constitutional rights by Illinois juvenile court probation officer Diane Bufano ("Bufano") and by four of Department's employees--Marcia Little ("Little"), Victor Brooks ("Brooks"), William Carter ("Carter") and Duane Porter ("Porter"). Essentially Viero asserts that each of the five defendants was including a need to be protected from his own suicidal tendencies.

 Bufano, Little and Brooks *fn2" have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. Both sides have substantially complied with this District Court's General Rule ("GR") 12(M) and 12(N), *fn3" and the motion is fully briefed and ripe for decision. For the reasons stated in this memorandum opinion and order, defendants' motion is denied (except to a limited extent as to Brooks).

 Summary Judgment Principles

 Under familiar Rule 56 principles defendants have the burden of establishing both the lack of a genuine issue of material fact and that they are entitled to a judgment as a matter of law ( Celotex v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Summary judgment is appropriate only if the record reveals that no reasonable jury could conclude that defendants violated Rosario's constitutional rights. This Court is called upon to draw inferences in the light most favorable to nonmovant Viero, but it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). What follows in the Facts section is thus a factual statement drawn from the parties' submissions, with any differences between them resolved in Viero's favor. For that reason this opinion will refer to matters in Viero's version as established facts and not merely as contentions.

 Facts

 On November 6, 1992 Rosario had a confrontation with Viero at their home, during which he broke a window and threatened to strike her (Brooks Dep. Ex. 3 at 22-23). That incident, along with previous behavioral problems, *fn4" led Viero to have Rosario admitted to Hartgrove Hospital ("Hartgrove") on December 17, 1992 (D. 12(M) P7). On a form filled out at the time of admission, psychiatrist Dr. Ralph Newman preliminarily concluded that Rosario had a mental illness or emotional disturbance requiring hospitalization, as evidenced by (V. Ex. 3):

 
violent behavior including fighting, stealing and gang involvement. Pt. has been running away from home and not attending school placing himself in danger.

 Dr. Newman's provisional diagnosis was "major depression with conduct disorder" (V. Ex. 2 at 1).

 During his stay at Hartgrove Rosario was diagnosed with Attention Deficit Hyperactivity Disorder and, in addition to required participation in individual and group therapy, he was prescribed 10 milligrams of Ritalin administered three times per day (D. Ex. 4 at 2). Rosario responded positively to that course of treatment (id.):

 
He responded with a decrease in impulsive and hyperactive behavior. His school performance improved and he was getting into fewer conflicts with peers.

 Rosario remained in the hospital until he was discharged on January 19, 1993. On the preceding day Dr. Newman had prepared a handwritten "discharge summary," recording the same diagnosis of Attention Deficit Hyperactivity Disorder (id.). Dr. Newman also recommended in the discharge summary that Rosario should continue taking 10 milligrams of Ritalin three times per day (id.). That version of the discharge summary was distributed both to Bufano and to St. Charles.

 Dr. Newman also prepared a more detailed, typed discharge summary dated January 19, 1993 (V. Ex. 2). Nothing in the record reflects that the second version of the discharge summary was either sent to or requested by Bufano or by anyone at St. Charles. Nonetheless, because it chronicles in more detail Rosario's life history and hospitalization and thus informs this Court's analysis, several points deserve mention:

 
1. In the "Provisional Diagnoses" section (id. at 1), the typed summary notes that when Rosario was admitted to Hartgrove Dr. Newman's principal provisional diagnosis was "Major Depression with Conduct Disorder," and the secondary provisional diagnosis was a notation as to the need to "Rule out ADHD" (referring to Attention Deficit Hyperactivity Disorder).
 
2. In the "History of Present Illness" section (id. at 2) the summary states:
 
He is running away from home and is alleged to have expressed suicidal ideation in the past, planning to stab himself with a knife.
 
3. This statement is set out in the "Mental Status Upon Admission" section (id.):
 
Mood was depressed, tearful, and labile.
 
4. In part the "Treatment Data: Treatment Plan, Response and Clinical Course" section says (id. at 3):
 
5. In the "Discharge Diagnoses" section (id. at 1) Dr. Newman's principal diagnosis was "Attention Deficit Hyperactivity Disorder," with a secondary diagnosis of "Conduct Disorder." Dr. Newman also recorded Rosario's ratings as "severe" under "Psychosocial Stressor" and "poor" under "Highest Level of Adaptive Functioning." He then described Rosario's prognosis as "guarded" (id. at 5).

 Because he had already been adjudged delinquent on November 23, 1992 (D. Ex. 11 at 2), Rosario faced a dispositional hearing immediately upon his discharge from Hartgrove. *fn5" At the request of Judge Charles May (who would preside over the dispositional hearing), Bufano prepared a January 13, 1993 supplemental social investigation report for the January 19 hearing (D. 12(M) P15). *fn6" While preparing the report Bufano spoke with hospital social worker Carolyn Zafiris ("Zafiris"), with an unnamed nurse, with Viero and with Rosario himself (id. PP11-12, 16). She contends that none of the persons to whom she spoke gave her any indication that Rosario was a suicide risk. But Viero says that when she spoke with Bufano she expressed "her concerns about [Rosario's] emotional health, his depression, his hyperactivity, his thoughts of suicide and his need for medication," and that Bufano acknowledged that she was aware of Rosario's "nerve" problem (V. 12(N) PP16, 39).

 After preparing her January 13 report, Bufano also had access to two pieces of information from Hartgrove (D. 12(M) P13): the handwritten discharge summary of January 18, 1993 and a copy of a January 19, 1993 letter from Zafiris to Judge May (D. Ex. 5). Zafiris' letter described the progress that Rosario had made while at Hartgrove, but it also recommended continued individual and family therapy.

 Bufano admits that she knew that Rosario was supposed to continue taking Ritalin after his discharge from Hartgrove (Bufano Dep. 45-47). Moreover, Viero swears that she had Rosario's Ritalin prescription filled and tried to give it to Bufano to take with Rosario to St. Charles, but that Bufano refused (Viero Aff. P10).

 At the January 19, 1993 dispositional hearing, Judge May committed Rosario to Department's custody for a term of 90 days (D. 12(M) P17). That same day Bufano provided Department with a packet of information that included the January 13, 1992 supplemental social investigation and copies of two earlier social investigation reports; a November 30, 1992 summary progress report; the January 18, 1993 handwritten discharge summary from Hartgrove; Zafiris' January 19, 1993 letter; the juvenile court petition; and a copy of the police report from the November 6, 1992 incident (id. P18).

 Little administered the suicide screening to Rosario, and according to the Suicide Screening Form Rosario answered "yes" to two questions. First, as to the question "Have you ever been given medication for a mental illness?," Little wrote down Rosario's response as "sm. white pill for nerves -- last taken 1-19-93 a.m. @ Hosp. for ADHD" (D. Ex. 8). Little also recorded a "yes" answer to this question:

 
Have you ever thought about hurting yourself? If yes, explain: When, do you have a plan, what is it?

 Little summarized Rosario's answer as "2 yrs ago -- mom's x boyfriend used to beat him."

 At the bottom of the suicide screening questionnaire Little checked two boxes to indicate that there should be a referral to a mental health professional and the crisis team leader. She then turned the form over to shift supervisor Robert Gibson ("Gibson")(D. 12(M) P29). *fn7" Gibson spoke with mental health professional David Hanchett ("Hanchett") about whether Rosario should be placed in the general population. Gibson memorialized the conclusion they reached on the Suicide Screening Form (this seems to be what D. Ex. 8 says):

 
Mr. Hanchett was called and he agreed that youth was not in crisis at this time; youth appeared to be in good humour and no signs of depression.

 Again Viero swears to a version different from Little's. According to Viero she had a telephone conversation with Little at the time of Rosario's admission to St. Charles, during which she "discussed [her] worries about [Rosario], his depression, his needs for medication for hyperactivity and talked with [Little] about [Rosario's] previous ideas of committing suicide" (Viero Aff. P11).

 Rosario was placed in the general population at St. Charles and never saw a mental health professional. He did see Dr. Gerry Cerniak for a physical exam as part of the intake procedure, and Dr. Cerniak, upon noting Rosario's Ritalin prescription, recommended that Rosario see a psychiatrist (P. Ex. 4). ...


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