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Cheryl Miller v. Jolene Harbaugh

October 19, 2012


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 5381--Suzanne B. Conlon, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.


Before BAUER, KANNE, and WOOD, Circuit Judges.

The State of Illinois, through its Department of Juvenile Justice, runs a number of youth detention facilities, to which minors convicted in juvenile delinquency proceedings may be committed if a less restrictive option is not appropriate. See Juvenile Court Act of 1987, 705 ILCS 405/5-750(1). This case involves the sad fate of one such minor, Jamal Miller, who was incarcerated at Illinois Youth Center (IYC) St. Charles, and briefly at IYC Kewanee, at the age of 16. Jamal had a history of mental illness and was known to have attempted suicide at least three times. Sometime in the early morning of September 1, 2009, Jamal hanged himself from the top bunk in his room. He was not dis- covered in time to save him. The present lawsuit, brought by his mother on her own behalf and as his representa- tive, accuses a number of state officials of deliberate indifference to Jamal's serious mental illness, in violation of his Fourteenth Amendment rights (analogous for this purpose to Eighth Amendment rights). The district court granted summary judgment for the defendants, and we affirm.


When Jamal arrived at IYC St. Charles in November 2008, the Reception and Classification Unit, which deter- mines where new residents will be housed and what services they require, referred him for assessment by a mental health professional. Dr. Mallikarjuna Kanneganti, a private psychiatrist, conducted Jamal's assessment. His conclusions were grim: he noted in his report that Jamal had a history of Attention Deficit Hyperactivity Disorder, major depression, bipolar disorder, psychosis, behavior disorders, and anger and drug abuse coun- seling. Over the years, Jamal had taken numerous psycho- tropic medications. His behavioral history included delinquency, gang affiliations, anger, aggression, setting of fires, cruelty to animals, putting a gun to a cousin's head, threatening to kill teachers, learning disabilities, alcohol abuse, and cannabis use. This array of problems had resulted in five hospitalizations, most recently about five months earlier, when Jamal had tried to commit suicide by cutting himself with a machete. Dr. Kanneganti also recorded an additional suicide attempt in January 2007, when Jamal had tried to suffocate himself with a pillow, and another when Jamal had tried to hang himself. For his part, Jamal denied that he had manic or depressive symptoms, that he was de- pressed, or that he had experienced suicidal thoughts since his June 2008 attempt. Dr. Kanneganti decided to prescribe Prozac and lithium for him.

Initially, Jamal was assigned to IYC St. Charles's Special Treatment Unit, which is reserved for residents with chronic mental health disorders involving mild to moderate symptoms and "manageable" suicide risk. After a short time there, the classification personnel recommended that Jamal be transferred to the substance abuse program in the Special Treatment Unit at IYC Kewanee. The latter unit was reserved for residents with acute mental health disorders and moderate to high suicide risk, though it was also the only unit with a program that combined mental health treatment and substance abuse treatment. Dr. Jennifer Jaworski (one of the defendants in our case), the Behavioral Health Services Administrator for the Department as a whole, approved the transfer, and so Jamal was moved to IYC Kewanee in February 2009.

In April 2009, the Kewanee staff placed Jamal on suicide watch, in response to his assault of another resident and his statement that he was "going to make it worse for [him]self." Five days later, the watch was ended, after he denied any current suicidal or homicidal thoughts. In May 2009, Dr. Victor Kersey, a clinical psy- chologist normally assigned to IYC Kewanee and another defendant, returned from a one-year stint in Iraq. Only then did he become acquainted with Jamal, largely through Jamal's disciplinary infractions. He also learned through his staff that Jamal was not complying with the rules of the Mental Illness Substance Abuse (MISA) program at Kewanee. This noncompliance resulted in Jamal's dismissal from the program for 30 days, while he stayed in the Special Treatment Unit and was subject to a "behavior contract." Jamal satis- fied the terms of this contract and was re-admitted to the MISA program. But his restoration was brief: he misbehaved again, and after eight days he was kicked out. All 24 members of Kewanee's treatment staff, led by Dr. Kersey, then met to decide what to do with Jamal. They concluded that his biggest problems were anger and aggression, and that he was otherwise stable. Since he was not benefitting from the MISA program at Kewanee, they recommended that he be transferred back to IYC St. Charles. Dr. Kersey prepared a memoran- dum explaining this decision; he shared the memo with defendant Dr. Jolene Harbaugh, the head of mental health services at St. Charles, and Dr. Jaworski. Persuaded that Jamal should be returned to St. Charles, Dr. Jaworski gave her approval, and the transfer took place on August 5, 2009.

Back at St. Charles, Jamal was screened again the day after his arrival for risk of suicide and was found to be stable. Three days later, Dr. Kanneganti evaluated him and also found him not to be suicidal. During that meeting, Jamal asked if he could be taken off the medica- tions he had been taking for his mental disorders, and Dr. Kanneganti agreed to do so. The doctor later ex- plained that in his view, Jamal did not meet the criteria for forced medication because he was not gravely disabled nor did he pose a likelihood of harm to himself or others. On August 9, Jamal was transferred to a different housing unit and placed alone in a room with a metal-frame bunk bed. There was no mattress on the top bunk. At that time, single-bed rooms were available elsewhere in the St. Charles facility.

On August 12, 18, 25, and 28, Jamal saw a psychologist at St. Charles for mental health treatment. In a report written on August 29 and signed on August 31, the psy- chologist reported that Jamal seemed oriented, alert, confident, and stable, and that he showed no signs of suicidal ideation, hallucinations, or other severe mental illness. Unfortunately, his assessment proved to be wrong.

An incident that took place during the afternoon of August 31 seems to have triggered the events that led to Jamal's suicide. Around 4:30 p.m., Juvenile Justice Specialist (JJS) Natalie Finley asked the residents to line up after dinner to go to the gym. Jamal became disruptive and started to argue with her. She told him to quiet down and get in line; JJS Sean Kincade came over to help. Later that evening, Jamal apologized to Finley, and she responded that tomorrow is a new day. At 10:00 p.m., JJS Marcia Kozel started her shift. She was supposed to conduct safety checks of the rooms every 15 minutes; this involved shining her flashlight into the room and recording her checks. When she started her check at 3:09 a.m., the residents were all asleep and the lights were out. She checked A wing first, and then B wing, where Jamal's room was located. When she got there, she looked in the window and thought that she saw him in a squatting position. She turned away, continued her rounds, and then passed his room on the way back. At that point she realized that something was wrong: Jamal's face was against the top of the bunk and there was something around his neck. Kozel immedi- ately called an emergency code over her radio and ran for help. She and another specialist entered his room, found him hanging from the top bunk with a sheet, and cut him down. They started CPR; a nurse came to help; and eventually paramedics arrived. It was too late, however. Before his death, Jamal had posted notes on the walls and door of his cell. One of them was directed to Finley. It said that she "pushed [him] over the edge." He also put a note reading "RIP Jamal Damerco Miller" on his door, but Kozel testified that she did not see it.


On August 26, 2010, Miller filed the present lawsuit under 42 U.S.C. § 1983 and state law against the various Departmental and institutional actors who allegedly had some part to play in Jamal's death. Although she initially named others, in this appeal she has whittled the list down to five people: Kurt Friedenauer, the acting director of the Department at the time of Jamal's death; Bobby Moore, the superintendent of IYC St. Charles at the relevant time; Dr. Jaworski, the Behavioral Health Services Administrator for the Department; Dr. Harbaugh, the Treatment Administrator at IYC St. Charles, and thus the person responsible for overseeing all health services there; and Dr. Kersey, the clinical psychologist at IYC Kewanee who recom- mended Jamal's transfer back to IYC St. Charles.

The district court granted the defendants' motion for summary judgment in an order dated October 19, 2011, in which it dismissed the federal claims with prejudice and opted not to exercise supplemental jurisdiction over the state claims and thus dismissed them with- out prejudice. Because Miller's theory with respect to Friedenauer, Moore, Jaworski, and Harbaugh focused on their adoption of policies--notably the use of bunk beds for potentially suicidal residents--the district court referred to them as the "supervisory defendants." Because there is no vicarious liability under Section 1983, these defendants could be liable only if they personally did something that violated Jamal's rights. The court recog- nized that an official may be liable if he or she is responsi- ble for a systematic condition that violates the Constitu- tion, or for a failure to intervene. Nevertheless, the court concluded, even assuming that the use of the bunk beds violated the Constitution and the necessary personal involvement was shown, the four supervisory defendants were entitled to qualified immunity. In the district court's opinion, no clearly established law indi- cated that the suicide prevention measures in place at IYC St. Charles were inadequate for purposes of the Fourteenth and Eighth Amendments. As for ...

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