Pulera v. Sarzant, 19-2291

966 F.3d 540

Zachary PULERA, Plaintiff-Appellant,

v.Victoria SARZANT, et al., Defendants-Appellees.

No. 19-2291

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2020

Decided July 15, 2020

David J. Lang, Attorney, Judge, Lang & Katers, LLC, Wauwatosa, WI, James J. Gende, II, Attorney, Gende Law Offices, S.C., Pewaukee, WI, for Plaintiff-Appellant

Matteo Reginato, Attorney, Remzy D. Bitar, Attorney, Municipal Law & Litigation Group, S.C., Waukesha, WI, for Defendants-Appellees Victoria Sarzant, Dennis Zawilla, Shane Gerber

Colin J. Casper, Attorney, Michael S. Murray, Attorney, Dustin Todd Woehl, Attorney, Kasdorf, Lewis & Swietlik S.C., Milwaukee, WI, for Defendant-Appellee Visiting Nurse Community Care, Inc.

Patricia E. Putney, Esq., Attorney, Sheila M. Sullivan, Attorney, Bell, Moore & Richter, S.C., Madison, WI, for Defendant-Appellee Karen Butler

Before Flaum, Barrett, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Police arrested Zachary Pulera on suspicion of bail jumping and brought him to the Kenosha County Pre-Trial Facility. Just under forty-eight hours later, Pulera attempted to hang himself in his cell. Fortunately, correctional officers noticed, swiftly cut him down, and called for an ambulance that saved his life.

Over his two days at the facility, Pulera never told any official that he was contemplating suicide. This appeal asks whether a long list of officials nevertheless unreasonably responded to other possible signs that Pulera was in distress, so that they may face liability for his injuries under 42 U.S.C. § 1983. The district court concluded there was no genuine dispute that all officials responded reasonably to the information each had, so it granted the defendants’ motions for summary judgment. We affirm the judgment.

I. Background

A. Intake

In the early morning of Saturday, April 21, 2012, police stopped Edward Burke for a suspected hit-and-run. Pulera, Burke’s cousin, was in the car’s passenger seat, drunk. Officers arrested both men: Burke for the hit-and-run and Pulera for drinking in violation of a condition of his bond pending trial on state battery charges. According to the arresting officer’s report (the accuracy of which Pulera does not dispute), Pulera appeared drunk but exhibited no suicidal behavior while in transit. When Pulera arrived at the facility, the intake officer on duty, Victoria Sarzant, and her supervisor, Dennis Zawilla, reviewed the arresting officer’s report and placed Pulera and Burke in temporary holding cells across from each other.

Burke testified that he could just barely see and hear Pulera through their respective cell doors and the distance of the hall, but what he witnessed alarmed him. Though the solid door muffled the sounds and the small cell windows constrained his view, Burke saw that Pulera was "dragging his thumb across his neck as if he was going to harm himself" and muttering "I’ll just take myself out" because he was "done," all of which Burke understood by reading Pulera's lips. This went on for a while, and Burke testified that unidentified officers "in the vicinity" should have seen and heard Pulera, too. After about an hour, though, an officer took Burke out of his holding cell and booked him into the facility proper. Burke told the officer who transferred him, as well as one or two others, that he was concerned about Pulera hurting himself. Each brushed Burke off and, a few hours later, he left the facility.

Meanwhile, Pulera stayed in his holding cell. Although Sarzant had reported that Pulera was cooperative, if intoxicated, at 2 AM, he started to become more disruptive. By 5 AM, he was standing on a bench, pounding the door, and shouting. Based on this behavior—which Pulera explained was because he was cold and wanted a jacket—Sarzant held off on booking him and, near the end of her shift, prepared a report explaining why. Sarzant wrote that she saw no evidence Pulera was suicidal, just combative and possibly still intoxicated. Zawilla reviewed this report, too, and Pulera does not dispute the accuracy of its contents either.

After the shift change, Shane Gerber began the booking process. He screened Pulera using a standard form with medical and mental health questions and wrote down that Pulera’s mother had died a month ago (but not that she had committed suicide) and that Pulera was prescribed medications. Pulera testified that he may have told Gerber of his mother’s cause of death and that his brother had also committed suicide about a year before. The rest of the form Pulera thought accurate. It reflects that Gerber saw no behavior suggesting a risk of suicide, and that Pulera answered "no" when asked whether he had ever contemplated or was presently contemplating suicide and to a battery of questions reflecting possible suicide risk factors.

Gerber also checked the facility's database for a "mental health special instruction" connected to Pulera but found none. This procedure resulted from a 2011 policy change to reduce the risk of inmate suicides after a string of attempts at the facility. The facility’s database includes an instruction in the file of any arrestee who its officials had previously placed on "level one" suicide watch (the more restrictive and protective of the two levels the facility recognized). If a booking officer saw the instruction, he had to alert a supervisor, who would then perform a second, more thorough mental health risk assessment. During a prior stint at the facility in 2011, a crisis worker had placed Pulera on suicide watch after he told a nurse that he felt "really depressed" and his "mind was mess[ed] up" after his brother’s suicide. The parties agree that the worker ordered only the less restrictive level two watch, however, so Pulera’s file did not contain a special instruction in 2012. Without the instruction, the facility’s policy required Gerber to order the additional risk assessment only if Pulera showed signs of contemplating suicide or had three risk factors. The death of a family member was one such factor, but Gerber found no others, so he placed Pulera in general population without requesting a second look.

B. Medical Requests

Over the course of his day and a half in general population, Pulera submitted three inmate medical requests relating to his prescription medications—clonazepam and tramadol. Clonazepam is a benzodiazepine that Pulera was apparently prescribed for anti-anxiety purposes. Tramadol is an opioid pain-reliever that he used to treat chronic pain from a back injury.

Pulera submitted his first request a few hours after booking, around noon on Saturday. Cleaned of spelling errors, it said "I need my clonazepam and tramadol. My family is dropping them off. For my pain, anxiety, and depression." At around 4:30, Nurse Erica Rea responded, telling Pulera that he was under the care of the jail doctor and that she would notify the doctor after his family dropped off the medications.

As it turns out, Pulera’s brother, William, had brought the prescriptions earlier that afternoon, and Rea reviewed them minutes after responding to the request. She saw that Pulera had refilled his prescription the day before, so he should have used just a couple of doses. Instead, the bottles contained only 34 out of the expected 60 clonazepam tablets, and 81 out of 120 tramadol tablets. She never asked, and no one ever discovered, where the missing pills went.

A half hour later, Rea called Dr. Karen Butler, the facility’s medical director, who worked remotely except on Tuesdays. Rea reported the missing pills and asked whether she should distribute Pulera’s prescriptions while he was in the jail. Dr. Butler declined to set up a regimen at that time and Rea noted that order in Pulera’s chart. Testifying at her deposition, Dr. Butler explained that she made this decision based on the missing pills, which she believed might be a sign of abuse and could have made further dosages dangerous. Neither Dr. Butler nor Rea recorded these thoughts in the medical record. Nevertheless, the jail’s written policy supported her decision; it states, as a default rule, that non-compliant medications would not be continued while in custody.

That evening, at around 8 PM, Pulera sent his second request. Clarified, it read "My heart hurts. I can’t breathe. I need my meds or I can die. My heart is pounding. They are here, I need you to please bring me my meds ASAP. Thank you."

Rea’s shift had ended, so Nurse Denise Gilanyi received this request instead. She called a correctional officer to check on Pulera around 9 PM, and the officer said that Pulera was in no distress: he just wanted his medications. Gilanyi knew that Dr. Butler had decided not to set up the medications just hours before, and that neither prescription was "lifesaving," so she did nothing further. Near the end of her shift, at 5:55 AM, she wrote back to Pulera that the doctor had not set up any medications.

Pulera sent the third and final request on Sunday afternoon. This one—again cleaned up—said, "I can’t eat, sleep. I am throwing up and I am dizzy. I can’t breathe. I need my blood pressure taken. Please see me. My brother and mother just died. I need my clonazepam. I am sick." Within minutes, the nurse on duty, Markella Reed, responded, telling Pulera someone would check his blood pressure. Reed testified that she based this immediate response on her guess that Dr. Butler would order a blood pressure check, once they talked.

Reed further testified that between receiving the request and responding, she, like Gilanyi, had called a correctional officer. This officer reported that Pulera was complaining he had a cold, walking around, making phone calls, and asking for a TV remote. Unlike Gilanyi, though, Reed did not add this conversation to the chart when it happened. Instead, she wrote it in a late entry the next day, after Pulera’s suicide attempt.

When Reed called Dr. Butler, a few hours later, her prediction proved accurate. Dr. Butler ordered a...