Miller v. Hertz

420 F. App'x 629
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 19, 2011
DocketNo. 10-1127
StatusPublished

This text of 420 F. App'x 629 (Miller v. Hertz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Hertz, 420 F. App'x 629 (7th Cir. 2011).

Opinion

ORDER

James Miller seeks damages under 42 U.S.C. § 1983 claiming that, while he was awaiting trial in Madison County, Illinois, on two counts of murder, the sheriff and superintendent of the jail violated his right to due process by confining him in segregation on “suicide watch” for over two years. On appeal he challenges the grant of summary judgment for the two defendants. We uphold that decision.

[631]*631Except as noted, the following facts are undisputed. Miller was first placed on suicide watch on August 5, 2003. After learning from his attorney that he might face the death penalty, Miller tore fabric from his mattress, braided it into a rope, used some of that rope to tie shut the door to his cell, and used the rest to try to hang himself. Guards broke in and rescued Miller, and later that day Dr. Kenneth Gilbert, a psychiatrist, interviewed him and recommended “standard suicide precautions,” including segregation and observation by staff every 15 minutes. Dr. Gilbert noted that Miller previously had been prescribed medication for depression, and he diagnosed Miller as having severe post-traumatic stress disorder and depression. He could not be certain, however, whether Miller’s attempt was “depression related or a ‘rational suicide’ based on assessment of his probable prison term.” Under the direction of defendant Joseph Gulash, the jail superintendent, Miller was moved to a different segregation unit (he was in segregation already, after stabbing another prisoner with a pencil), put on a 15-minute watch, and stripped of his clothing, mattress, and personal property. (He was given clothing after 3 to 4 days.) Miller later acknowledged that these precautions had indeed been necessary to prevent him from killing himself.

During the following month, medical staff disagreed about the scope of the precautions necessary to safeguard Miller. Five days after Miller’s suicide attempt, a social worker interviewed him and concluded that he no longer was suicidal. She recommended to Gulash that the suicide watch be ended and that Miller be allowed a mattress or sleeping bag (though nothing more). But Dr. Daniel Cuneo, a psychologist, formed a different opinion after evaluating Miller eleven days later at the direction of the judge presiding over his state criminal case. Dr. Cuneo concluded that Miller was competent to stand trial but still presented a high risk of suicide and should be “continued on suicide precautions.” Miller had been hearing voices, Dr. Cuneo reported, and appeared extremely depressed. He had a history of numerous suicide attempts, some of them manipulative. For example, the doctor wrote, Miller had declared a hunger strike immediately- after his recent attempt. Dr. Cuneo noted that in the past Miller had refused to take prescribed medications. Miller also exhibited an “extremely low frustration tolerance level” and currently was experiencing extreme stress.

The suicide watch continued, and near the end of the first month, Gulash issued a memorandum to jail personnel clarifying what Miller was allowed to have in his cell. The precautions would continue, Gulash said, but Miller would be given two sleeping bags specially designed for suicidal inmates, a set of clothing, and permission to read newspapers and his mail whenever his social worker or attorney visited. (According to Miller, Gulash had been reluctant to give Miller access to his mail because of concern that he would use it to fashion a weapon.)

Dr. Gilbert continued to monitor Miller. After a meeting in November 2003, he documented that Miller was unstable and still contemplating suicide. Miller described having two personalities, one weak and unable to cope and the other strong and invulnerable. The doctor recommended that Miller be moved to a psychiatric hospital instead of remaining at the jail in isolation, but there is no evidence that he followed up on this advice or that Miller and his defense team supported the proposal. Dr. Gilbert met with Miller again in January 2004. Afterward he documented that Miller had refused his medications three times during December. But otherwise, Dr. Gilbert noted, Miller had [632]*632followed his medication regime and was not experiencing suicidal thoughts. The doctor expressed concern that Miller’s prolonged isolation had precipitated a “significant reduction of function” but did not elaborate. Dr. Gilbert concluded that Miller should remain in segregation though it was time to reconsider the continuing restrictions. He added that Miller had acknowledged that a return to suicide watch would be necessary if he refused to take his medications.

Dr. Gilbert’s view did not prevail, and Miller’s defense team requested the opinion of psychologist Michael Armour, who interviewed Miller in January. Miller told Dr. Armour that he had attempted suicide four or five times since 2002 and had not been taking his medications before the August attempt. Dr. Armour concluded that Miller posed a security concern because of his impulsiveness and history of trying to harm himself. Further, because of Miller’s low tolerance for frustration, Dr. Armour cautioned against housing Miller with more than a few other prisoners. He suggested moving Miller to a cell by himself or with one other prisoner but with fewer restrictions than he faced in his current isolation. Dr. Armour acknowledged, however, that any change for Miller depended on him continuing to take his prescribed medications. He did not say whether he knew that Miller had refused those medications several times recently. Miller’s defense team forwarded Dr. Armour’s recommendation to defendant Robert Hertz, the sheriff, and asked him to move Miller out of his restrictive confinement. Hertz forwarded the letter to his chief deputy, but there is no evidence the deputy responded to Miller.

After Dr. Armour’s evaluation, Dr. Gilbert met with Miller at least three more times. Within three weeks of Dr. Armour emphasizing that any relaxation in Miller’s restrictive confinement must be conditioned on his continued use of prescribed medications, Miller told Dr. Gilbert that “Jay,” the stronger of his dual personalities, had directed him to stop taking the drugs. Dr. Gilbert opined that Miller was approaching sensory deprivation and needed a stimulus such as mail or a newspaper. The doctor prescribed additional medications and noted that Miller — though cooperative during the meeting — had punched the guard who escorted him back to his cell. Dr. Gilbert interviewed Miller on two more occasions in April 2004, concluded that he was no longer suicidal, and recommended moving him to the special housing unit.

In early April 2004, Gulash wrote to the chief deputy about Miller’s situation. He recounted Miller’s history: the stabbing of another prisoner, his attempted suicide, the placement on suicide watch, and the recommendation from Dr. Cuneo, a court-appointed psychologist, that suicide precautions continue. Gulash also acknowledged that Dr. Gilbert had proposed moving Miller out of isolation to a psychiatric hospital and that a concerned nurse had advocated giving Miller a mattress. Gulash suggested asking Dr. Cuneo to reevaluate Miller. Gulash’s report was forwarded to the state attorney’s office, which responded by telling him to “follow the suicide watch protocol” that was in place. If Miller’s conditions needed to change, Gulash was informed, his lawyers could seek the trial judge’s intervention. Gulash also memorialized an April 2004 conversation with a supervisor at the Office of Jail and Detention Standards at the Illinois Department of Corrections.

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Bluebook (online)
420 F. App'x 629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-hertz-ca7-2011.