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Johnson v. Rimmer

United States Court of Appeals, Seventh Circuit

August 30, 2019

Lloyd N. Johnson, Plaintiff-Appellant,
Karen Rimmer, et al., Defendants-Appellees.

          Argued February 22, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:14-cv-01408-LA - Lynn Adelman, Judge.

          Before Ripple, Manion, and Brennan, Circuit Judges.

          Ripple, Circuit Judge.

         Lloyd Johnson brought this action under 42 U.S.C. § 1983 against various employees and officials of the Milwaukee County Medical Health Complex ("MHC"), MHC itself, Milwaukee County, and the County's Department of Health and Human Services. His claims center on an incident of substantial self-mutilation that occurred while he was in the care of MHC. Mr. Johnson alleged that the defendants violated his Fourteenth Amendment rights by providing constitutionally inadequate medical care, which led to his self-mutilation. Mr. Johnson also brought claims under Monell v. Department of Social Services, 436 U.S. 658 (1978), in which he alleged that the institutional defendants maintained unconstitutional policies, procedures, and customs that caused his injuries. He further maintained that defendants engaged in a conspiracy to cover up the constitutionally inadequate care. In addition to these federal claims, Mr. Johnson brought associated state-law claims.

         The defendants moved for summary judgment, and the district court granted the motion in favor of all defendants on all of Mr. Johnson's federal claims. It declined to retain jurisdiction over the state-law claims. Mr. Johnson now brings this appeal, challenging only the district court's decision in favor of two individual defendants: Dr. David Ma-cherey and Nurse Ade George. For reasons set forth in the following opinion, we affirm the judgment of the district court.




         Mr. Johnson suffers from a variety of mental ailments, including paranoid schizophrenia, major depressive disorder recurrent, obsessive compulsive disorder, and borderline personality disorder. Starting in mid-2011, he had been admitted intermittently to MHC for treatment. During one of these stays, on March 18, 2012, Mr. Johnson substantially harmed himself, leading to this present suit.

         The relevant sequence of events began on February 28, 2012, when Mr. Johnson voluntarily admitted himself to MHC with complaints of depression, delusional thoughts, auditory hallucinations, and suicidal ideations. Mr. Johnson's intake records at that admission reflect that he previously had attempted suicide or self-harm and that he told the intake nurse that "his ears are in the shape that they are in (keloids) because he pulled on his penis in the past and after that, they grew the keloids."[1] He was diagnosed with a psychotic disorder but was released twenty-two hours after admission. MHC discharged Mr. Johnson because his condition had improved; he had asked to be released; and the attending physician had determined there were no grounds to detain him at MHC against his will.

         On March 3, 2012, while staying at his stepmother's house, Mr. Johnson used a pair of scissors to sever his testicles, cut off both his earlobes, and remove a portion of skin from his penis. Milwaukee Police took him to Froedtert Hospital for treatment. He remained there until March 8, when he was transferred to MHC pursuant to a petition for emergency detention.[2] At MHC, he was assigned a private bedroom with a private bathroom in the Intensive Treatment Unit ("ITU"), a locked area reserved for the highest-risk patients.[3] Upon admission, he was placed on 1:1 observation status, which required that he never be left alone or out of sight of an assigned nurse.[4]

         On March 9, Mr. Johnson met with Dr. David Macherey for an incoming assessment. At the time, Dr. Macherey was the psychologist and treatment director in the ITU. He diagnosed Mr. Johnson with bipolar disorder[5] and noted that the most recent episode was mixed, [6] severe, and psychotic. Dr. Macherey concluded that Mr. Johnson's explanations for his self-mutilation were various and delusional. He also determined that Mr. Johnson had auditory hallucinations, difficulty concentrating, poor self-esteem, and impaired judgment. He specifically noted Mr. Johnson's lack of concern about his recent behavior. As a result of these conclusions, Dr. Macherey determined that Mr. Johnson was at significant risk of self-harm. He ordered that Mr. Johnson remain on 1:1 observation to ensure against further self-mutilating behavior.

         That same day, Dr. Thomas Harding, the Medical Director of MHC, also examined Mr. Johnson. He concurred with Dr. Macherey's assessment and prescribed a variety of drugs to treat Mr. Johnson's mental ailments. Dr. Harding and Dr. Macherey then established a goal for Mr. Johnson to "report freedom from [auditory hallucinations] and demonstrate clear[, ] reality[-]based thinking within 7 days."[7]

         Later that day, Mr. Johnson found a metal object and inserted the object into his pants. Mr. Johnson could have used this object to harm himself, but the staff quickly noticed his action and took the object from him. Nurse Remedios Azcueta testified that when Mr. Johnson hid the metal object, he said that "he wanted to die" and that "[i]t hurts."[8]

         Over the next five days, [9] Mr. Johnson continued to be on the 1:1 observation protocol. He remained in a state of anx-iousness, and had disorganized and tangential thoughts, delusions, and auditory hallucinations. Mr. Johnson reported that he did not regret his act of self-harm. Further, although the records indicate that such thoughts became more sporadic over time, Mr. Johnson continued to express that he wished to remove his genitals. For example, on the morning of March 14, he told a nurse that he still wanted to harm himself by removing his genitals and, if he could, he would do it at MHC. That same day, Mr. Johnson reported that his medications were not working.

         On March 15, Mr. Johnson's treatment team, which included Dr. Macherey, Dr. Harding, Nurse Mary Holtz, psychiatric social worker Candace Coates, and occupational therapist Sue Erato, met with Mr. Johnson to determine the next steps in his treatment. The record reflects that Mr. Johnson participated cooperatively in this conference, reported that the medication was helping, and indicated that the auditory hallucinations that he had been experiencing had become cloudy and less troublesome. Dr. Harding determined that Mr. Johnson was improving because he articulated a desire for therapy, was able to identify personal strengths and goals, slept better, denied having suicidal thoughts, and was future-oriented. Both physicians, however, noted that Mr. Johnson's thought process still was disorganized. Mr. Johnson's medical records reflect that the treatment goal for "absence of plan for self harm x3 days was extended."[10]Mr. Johnson remained on 1:1 observation following the meeting.

         Prior to the March 15 meeting, Nurse Holtz noted during her morning shift that Mr. Johnson continued to have bizarre thoughts, although he reported that his ongoing auditory hallucinations had become background noise. She also documented that Mr. Johnson denied having ideations of suicide or self-harm. She noted that Mr. Johnson told her that he could not believe that he had harmed himself on March 3. That night, Nurse Azcueta documented that Mr. Johnson was depressed.[11] She also noted that Mr. Johnson's "thoughts] [we]re improving [with] medications" and that he "stated no thoughts of self[-]harm."[12] Further, her notes reflect that Mr. Johnson interacted with other patients in the ITU and cooperated during his dressing change.

         Dr. Macherey next examined Mr. Johnson on March 16.[13]He documented that, although Mr. Johnson remained depressed, his thinking had been organized for almost forty-eight hours and he denied any thoughts of self-harm.[14]Dr. Macherey's notes also reflect that Mr. Johnson still demonstrated loose associations and had not yet met the treatment plan's goal of showing reality-based thinking for seven days without auditory hallucinations.[15]

         During her morning shift that day, Nurse Holtz noted that Mr. Johnson's "thoughts [we]re reality[-]based" and that he "denie[d] any thoughts of self-harm."[16] She also documented that Mr. Johnson was "depressed" about the harm he had done to himself and was "overwhelmed" by his medical problems.[17] Around 3:00 p.m., Dr. Macherey removed Mr. Johnson from 1:1 observation status. He testified that he believed Mr. Johnson's condition was improving because Mr. Johnson was no longer ignoring his medical problems, showed an appreciation for his acts of self-harm, and had stopped expressing an intent to harm himself. Dr. Harding concurred with Dr. Macherey's assessment, and the rest of his treatment team did not object to the decision to remove Mr. Johnson from 1:1 observation.[18]

         At MHC, the nursing staff conducted rounds every fifteen minutes to check on the whereabouts and well-being of each patient.[19] Once removed from 1:1 observation, Mr. Johnson was subject to these well-being checks. Further, nurses conducted "change of shift rounds" at the start of each shift; the nurses observed the whereabouts and well-being of each patient and checked the safety of each patient room, each bathroom, the common area, the treatment room, and all other areas of the ITU. Also, twice per shift, a staff member conducted environmental rounds, which involved a tour of the entire ITU with an emphasis on finding any safety hazards.[20]

         On March 18, Nurse George evaluated Mr. Johnson on her morning shift. She noted that, although he presented a flat affect, he communicated better, continued to express regret for the harm he had caused himself, and denied having any hallucinations or harmful ideations. Sometime before 12:30 p.m., Nurse George changed the dressing on Mr. Johnson's wound.[21] Mr. Johnson testified that she changed his dressing in his bathroom and used bandage scissors to cut the yellow, gauze-like bandages while doing so. Nurse George testified that she changed Mr. Johnson's dressing in the treatment room, that she never used scissors during his treatment, and that she never carried scissors on her person.[22]

         At approximately 4:00 p.m. on March 18, Mr. Johnson approached the nursing station of the ITU. He handed the nursing staff a pair of bandage scissors and towels soaked in blood. He stated, "I cut my dick."[23] His penis was completely severed from his body. Mr. Johnson was rushed to Froedtert Hospital, where his penis was surgically reattached.

         In the immediate aftermath of the incident, multiple MHC employees reported that Mr. Johnson said that he found the scissors in his bathroom.[24] He testified that the scissors were "[u]nder a pair of dry napkins, like hand towel napkins" in his bathroom and that he harmed himself shortly after finding them.[25] The scissors that he used were metal-handled medical scissors manufactured by a company from which MHC had purchased that type of scissors. In his deposition, Mr. Johnson was unable to identify how the scissors got to the bathroom and how long they had been there.[26]

         According to the record evidence, no one saw scissors in Mr. Johnson's bathroom prior to the incident. During the post-incident investigation, the housekeeping contractor who cleaned Mr. Johnson's bathroom in the morning of March 18 reported that he did not observe any unusual items and that he did not have scissors on his cleaning cart or on his person.[27] The daily documentation of nurse rounds "indicates that the bathroom had been checked for safety at 7 AM and at 3 PM on 3/18 as part of the shift to shift handoff."[28] Nurse Azcueta testified that she checked the bathroom at the start of the afternoon shift on March 18 and that she did not find any contraband. The defendants admit, in their response to Mr. Johnson's proposed findings of fact, that a nursing assistant conducted a well-being check just fifteen minutes prior to the incident.[29]

         The record contains testimony that Mr. Johnson might have obtained scissors from somewhere other than his bathroom. Nurse Karen Rimmer testified that, when Mr. Johnson returned to MHC, he told her first that he found the scissors at Froedtert Hospital before he altered his story and said that he had found them in his bathroom.[30] Mr. Johnson testified that he did not remember this conversation.[31] Others stated that rubberized office scissors were kept in an electrical-type box located inside the nurse's office; although the box was inside a locked or otherwise nurse-supervised office, the box itself was unlocked. Nurses also testified that metal-handled medical scissors were kept in a box or drawer in the treatment room. There also is evidence that, beyond patient treatment, the exam room was used at times as an "overflow interview room[], for patient phone calls and for lab draws."[32] MHC staff testified that patients always were supervised while in the treatment room and that the room was locked when not in use. Finally, Nurse Ellison, charged with the initial investigation into the incident, reported that he had observed Mr. Johnson talking to a housekeeping contractor around 1:45 p.m. on March 18.[33] During Nurse Ellison's investigation, this contractor explained that he knew Mr. Johnson, but had not seen him for a few years. The contractor recounted that Mr. Johnson "was smiling" and said, "I have to tell you something/' but that the contractor told him he could not talk at that time.[34] According to the contractor, the exchange lasted no more than five minutes. MHC's entire investigation into the incident was unable to determine the source of the scissors.


         On November 5, 2014, Mr. Johnson brought this action against the MHC, its employees and officials, Milwaukee County, and the Milwaukee County Department of Health and Human Services seeking damages for the injuries he suffered while in the care of MHC. In the first of his two federal claims under 42 U.S.C. § 1983, Mr. Johnson alleged that the defendants' inadequate medical care deprived him of his right to substantive due process. According to Mr. Johnson, the defendants' care was constitutionally inadequate because removing him from 1:1 observation status and allowing him to possess scissors created the circumstances that permitted him to injure himself. Second, relying on Monell v. Department of Social Services, 436 U.S. 658 (1978), Mr. Johnson alleged that MHC, Milwaukee County, and its Department of Health and Human Services maintained unconstitutional policies, procedures, and customs that had caused his injuries. Relatedly, Mr. Johnson claimed that the defendants conspired to cover up their constitutionally inadequate care. Mr. Johnson also brought state-law claims arising out of the same event.

         In due course, the defendants moved for summary judgment. They contended that, because Mr. Johnson volun- tarily had committed himself to MHC, he had no substantive due process rights under the Fourteenth Amendment. Moreover, they continued, any such claims failed on the merits. Removing Mr. Johnson from 1:1 observation, they submitted, was simply a matter of professional judgment. Under our decision in Collignon v. Milwaukee County, 163 F.3d 982 (7th Cir. 1998), they submitted, removing him from such close observation was not such a serious departure from accepted practice as to constitute a constitutional deprivation. With respect to access to the scissors, the defendants contended that Mr. Johnson could not "cite to any evidence to suggest that the scissors he used to sever his penis were deliberately left for him to find."[35] Consequently, they argued, he was "left with nothing more than a claim that the scissors were accidentally or inadvertently left behind," and "inadvertence [wa]s insufficient to sustain a § 1983 claim."[36]

         In his opposition to the motion for summary judgment, Mr. Johnson contended that there was sufficient evidence to permit a jury to conclude that, by removing him from 1:1 observation, the defendants were deliberately indifferent to his serious medical condition. With respect to access to the scissors, Mr. Johnson contended that he was "entitled to the reasonable inference that a nurse left her bandage scissors in his bathroom."[37] "At a minimum," Mr. Johnson continued, "there [wa]s a reasonable inference ... that the three nurses identified as conducting bandage changes in [his] room, George, Azcueta and Plum were deliberately indifferent or recklessly disregarded [his] needs."[38] Other than noting that Nurse George's bandage change was closest in time to his incident of self-harm, Mr. Johnson did not suggest how a jury might conclude that it was more likely than not that a particular nurse left the scissors in the bathroom.

         The district court granted the defendants' motion. It held that Mr. Johnson could not sustain his claim regarding his removal from 1:1 care because no jury could find, on the record made by the parties, that the medical staff's decision was a substantial departure from accepted professional norms. The court concluded that, at most, the facts showed that removing Mr. Johnson from 1:1 care was negligent, and mere negligence is not sufficient to sustain a constitutional claim. The district court also held that Mr. Johnson could not go forward with his claim that the defendants deprived him of substantive due process by exposing him to the scissors. It reasoned that mistakenly leaving scissors in the bathroom was only negligence. The court also noted that, regardless, Mr. Johnson failed to submit sufficient proof that any individual defendant was personally responsible for the scissors ending up in his possession.[39]

         The district court also rejected Mr. Johnson's Monell claim and conspiracy claim. With no other federal claims remaining, the district court declined to exercise supplemental ju- risdiction over Mr. Johnson's state-law claims. Mr. Johnson timely appealed. He only challenges the district court's decision in favor of two individual defendants: Dr. David Ma-cherey and Nurse Ade George.



         We review the district court's decision on summary judgment de novo. E.T. Prods., LLC v. D.E. Miller Holdings, Inc.,872 F.3d 464, 467 (7th Cir. 2017). Summary judgment is proper when the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party." Carmody v. Bd. of Trs. of Univ. of III.,893 F.3d 397, 401 (7th Cir. 2018) (internal quotation marks omitted). "[A] court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). When ruling on a motion for summary judgment, we, like the district court, view the record in the light most ...

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