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Estate of Perry v. Wenzel

United States Court of Appeals, Seventh Circuit

September 18, 2017

Estate of James Franklin Perry, et al, Plaintiffs-Appellants,
v.
Cheryl Wenzel, et al, Defendants-Appellees.

          Argued January 5, 2017

         Appeals from the United States District Court for the Eastern District of Wisconsin. No. 2:12-cv-00664 - Rudolph T. Randa, Judge.

          Before Posner, [*] Manion, and Williams, Circuit Judges.

          Williams, Circuit Judge.

         James Franklin Perry died on the floor of the Milwaukee County Criminal Justice Facility less than 24 hours after Milwaukee City police officers arrested him. Shortly after he was arrested, Perry suffered a seizure. The City transported him to the hospital where he received treatment. But, after he returned to the City jail, the City failed to provide Perry with medical care even though he displayed signs of deteriorating health. Instead, they shackled him and placed a spit mask over his face. The City officers ignored his cries for help, his complaints that he could not breathe, and transferred him to the County's Criminal Justice Facility.

         After arriving at the County's Criminal Justice Facility, the County nurses decided that Perry was medically unfit to be booked into the jail. Yet, they provided him with no medical care and failed to remove the spit mask, which was seeping blood. When a nurse finally removed the spit mask, it was clear that Perry was no longer breathing. Although emergency efforts were taken, they were unsuccessful and Perry died on the County facility's floor. Perry's estate and his minor son (to whom we will collectively refer to as "Perry") brought suit against a number of police and corrections officers and the County's nurses pursuant to 42 U.S.C. § 1983, alleging that the failure to provide Perry with any medical care while he was in their custody violated his constitutional rights. Perry also brought a Monell claim against the City, alleging that it had a de facto policy of failing to investigate in custody deaths and ignoring medical complaints made by its detainees. Lastly, Perry brought state law claims against the individual defendants. The defendants filed for summary judgment, which the district court granted on all claims.

         On appeal, Perry contends that the district court improperly weighed the evidence and ignored factual disputes on his § 1983 claim. We agree. On this record, which includes surveillance footage from both the City and County facilities, a jury could conclude that Perry is entitled to relief on his § 1983 claims.

         The defendants contend that even if the district court erred by improperly weighing the evidence regarding Perry's § 1983 claims, it properly concluded that they were entitled to qualified immunity. We disagree, because in 2010, it was clearly established that a detainee such as Perry was entitled to objectively reasonable medical care and failing to provide any medical care in light of a serious medical need was objectively unreasonable. As a result, qualified immunity is not a bar to Perry's suit. But, we agree with the district court that Perry's Monell claim is not viable because he has failed to adequately support these claims with admissible evidence.

         Finally, Perry argues that the district court improperly concluded that the defendants were entitled to governmental immunity on his state-law claims of negligence and wrongful death. We agree, in part. The district court erred when it determined that the defendant nurses were entitled to immunity, because under Wisconsin law, the medical discretion exception to governmental immunity applies to their actions. But, we find that the officer defendants were entitled to immunity, because the medical discretion exception is narrow and does not extend to police or correctional officers.

         I. BACKGROUND

         Because Perry appeals from a grant of summary judgment against him, we construe the evidence and take all reasonable inferences in his favor. See e.g., Ortiz v. City of Chi., 656 F.3d 523, 527 (7th Cir. 2011).

         A. Perry's Arrest

         Shortly after 2:00 a.m. on September 13, 2010, Perry was arrested by Milwaukee police officers after a traffic stop and he was transported to the City's Prisoner Processing Section ("PPS"), where he was processed. As part of this processing, at approximately 5:45 a.m., an initial medical intake screening interview was conducted. The Medical Receiving Screening Form from that interview indicates that Perry told the officer conducting the interview that he suffered from seizures as a result of a previous head injury and that his seizures were treated twice a day with medication. Perry also stated that he had not taken his medication the afternoon before. Even though he had not taken his medication, the City did not give or get him any medication.

         After being screened and disclosing his medical condition to the officers, Perry was placed in a large holding cell. This cell-known as "the bullpen"-was capable of holding up to 150 detainees at a time. In the bullpen, approximately 12 hours after he was arrested, Perry had a seizure. During the seizure, Perry struck his head on the concrete floor. Afterwards, Perry was able to communicate and was cooperative with officers. The Milwaukee Fire Department was summoned, and emergency medical technicians attended to Perry's medical needs in the PPS.

         B. Perry Is Treated at Hospital

         Perry was then transported by private ambulance to the Aurora Sinai Medical Center with Officer Corey Kroes while his partner, Officer Crystal Jacks, followed behind in a police car. In the ambulance, Perry was awake, but appeared tired and did not talk very much. After arriving at the hospital, Perry was cooperative with medical professionals and was able to answer their questions.

         The two officers remained with Perry while he was treated in the emergency room. Shortly after arriving, Perry informed the officers and hospital personnel that he had to use the bathroom to have a bowel movement. He was able to slowly walk to the bathroom on his own. He was neither wobbly nor unsteady. He also walked back to his bed on his own. But, after returning from the bathroom, he had at least two more seizures. According to Officer Kroes, after each seizure, Perry became more tired, weak, and less responsive. To treat his seizures, Perry was given Dilantin, a drug used to prevent seizures, and Ativan, a sedative also used to treat seizures. Perry began to mumble, occasionally screamed out, and began to drool.

         Both Officers Kroes and Jacks were concerned about Perry's condition and why he did not seem to be improving. Officer Jacks expressed her concern to the hospital medical staff, who told her that his condition had changed because of the medication he had been given. But a doctor said that Perry could stay in the emergency room a short time longer so that he could rest. So, the officers stayed in the hospital for another 30 minutes. The officers also insist that the message from the medical staff was clear: Perry's drowsy condition was because of the medication and that he was going to be released. In fact, according to Officer Kroes, one of the nurses told him that Perry was simply faking his condition.

         Officer Jacks was concerned that Perry was going to be released, so she called the PPS supervisor, Lieutenant Karl Rob-bins. She told him that although Perry attempted to dress himself to leave the hospital, he was unable to do so on his own. She also told him that Perry was unable to walk. Officer Jacks asked whether they should return Perry to the PPS, or take him to the County's Criminal Justice Facility ("CJF"), where nurses were available. Lieutenant Robbins instructed the officers to return to the PPS with Perry and that he could not be transferred to the CJF since his paperwork was not complete. According to Officer Kroes, Lieutenant Robbins told them that they somehow had to get Perry back to the PPS, even if it meant calling for extra officers to come help carry him. However, Lieutenant Robbins contends that he never received a report that Perry's condition had deteriorated. Instead, he asserts that he was told that Perry was not cooperating at the hospital.

         Nonetheless, at approximately 6:45 p.m., Perry was discharged. Although his medical record states that he was "alert and appropriate upon [discharge], " according to the officers, Perry was unable to walk on his own and was unsteady on his feet. As a result, he was unable to get into a wheelchair on his own, and the officers had to assist him in doing so. The officers placed Perry, handcuffed, in the back seat of their police vehicle. Officer Jacks placed him in his seat belt. Perry was not combative or otherwise uncooperative. The two officers then drove Perry back to the PPS, which was only minutes away from the hospital.

         The hospital provided the officers with Perry's discharge paperwork. This paperwork noted that Perry had suffered from a seizure and indicated that the most common cause of a recurrent seizure was a missed dose of seizure medication. Additionally, the paperwork identified side effects from the Dilantin he had received. These side effects included, "[w]ob-bly gait, poor balance or coordination, slurred speech, jerky eye movement, drowsiness." Lastly, the paperwork instructed Perry to "GET PROMPT MEDICAL ATTENTION" if he, among other things, experienced unusual irritability, drowsiness or confusion or remained confused for more than 30 minutes after a seizure. Officer Jacks understood this to mean that if Perry's condition changed, they should return him to the hospital. The officers brought this paperwork back to the PPS with them, where, at some point, they gave it to Lieutenant Robbins, their commanding officer.

         C. Perry Returned to PPS

         After returning to the PPS, Officers Kroes and Jacks were met in the garage by two additional police officers, Officers Froilan Santiago and Rick Bungert, who assisted in removing Perry from the police car, as he was unable to get out on his own. Surveillance video from the PPS shows the officers dragging Perry into the elevator, where they placed him on the floor with his feet out in front of him.

         When the elevator reached the fifth floor, the surveillance video showed that the four officers, two holding his arms and two holding his feet, carried Perry down the hallway. The officers placed Perry on the floor, as they waited for a cell to be assigned. While he was on the floor, Officer Bungert placed him in a compression hold, as Perry moaned and complained that he was in pain. He also yelled out, at various times, "Jesus, just kill me."

         One of the officers said that Perry was starting to resist their hold, by pushing against them. The officers repeatedly told Perry to "behave himself/' as he continually moaned. Another officer, exactly whom is unclear from the video, stated that Perry was simply "faking it." Eventually, while still on the floor of the PPS hallway, Perry defecated and urinated in his pants. No one inquired as to whether Perry had done that intentionally, or whether this was an unintentional action that might suggest that he needed further medical treatment. Nor did Perry ever receive a new pair of pants.

         Lieutenant Robbins was present in the hallway while Officer Bungert applied the compression hold to Perry. He spoke briefly to Perry and both the officers who were restraining Perry, while he waited for another officer to retrieve a beverage for him from an area outside of the camera's view. As Lieutenant Robbins walked away, he laughed. He never inquired as to Perry's medical condition or whether he needed medical assistance. And, even though it was obvious that Perry had defecated and urinated, like his subordinates, Lieutenant Robbins did not inquire as to whether this was a voluntary act. The smell was so strong, however, that Officer Jacks eventually became physically ill and vomited.

         Approximately 10 minutes after Perry was returned to the PPS, and after he noticed that Perry was spitting and drooling, Officer Alexander Ayala requested a spit mask.[1] While Perry's face is not visible on the video, as the officers applied the spit mask, one stated, "he's spitting!" But, it is unclear whether Perry was spitting or drooling, and taking the facts in the light most favorable to Perry, we must assume as he contends, that this was not an aggressive act. Police Aide, Jacob Ivy, retrieved the mask and helped the officers place it over Perry's face.

         After the spit mask was applied, the officers could no longer see Perry's face. Perry screamed, "help me" and that he could not see. He continued to yell, "you're killing me, " and that he was unable to breathe. Officer Kroes responded to Perry's complaint that he could not breathe by stating, "if you're talking, you're breathing." Perry, still moaning, was then carried by five officers to cell A3.[2] As he was carried towards the cell, Lieutenant Robbins stated, "now, we're going to treat you like we used to treat prisoners ... like animals." There is no dispute that Lieutenant Robbins, who was later investigated for this incident, made this statement, which is also captured on the surveillance footage.[3]

         Before Perry was placed in the cell, the officers removed his handcuffs and shackles. However, they left his spit mask on. Officer Margarita Diaz-Berg, the Assistant Jailer on duty that evening, conducted a wellness check of Perry every 15 minutes. While she noticed that he had removed his spit mask, she also heard him grunting and saw him rolling on the floor. But, she took no action to determine whether he was experiencing a medical emergency.

         Perry could not be transferred to the CJF until his paperwork was completed and because Perry was exhibiting "inappropriate behavior" Lieutenant Robbins expedited it. Around 8:30 p.m., Officer Diaz-Berg opened the door to cell A3 so that Officers Frank Salinsky and Richard Lopez could remove Perry. Perry was compliant as they placed him in handcuffs and shackles once more. The spit mask was also secured over his face. Officer Ayala assisted the officers in escorting Perry, who walked with assistance to the elevator. When the elevator arrived in the garage, Perry had to be dragged out to the police car.

         After he was removed from cell A3, Officer Diaz-Berg and Lieutenant Robbins observed spots of blood on the floor where Perry had been. Additionally, Andy Puechner, a janitor at PPS, observed blood, saliva, urine, and feces on the cell's floor. No one, however, relayed this information to the County. Nor did anyone inquire as to whether these bodily excretions were caused by a medical condition.

         D. Perry Transferred to CJF

         Before transferring Perry to the CJF, a County facility, the City called the facility to inform County officials that they were transporting a "combative prisoner." At 8:41 p.m., Perry arrived at the CJF. Two cameras in the pre-booking facility captured the following events.

         Two City Officers, Officers Salinsky and Lopez, dragged Perry into CJF. They were assisted by two County Correctional Officers, Anthony Arndt and Kelly Kieckbusch. Another City Officer, Stephon Bell, was stationed at a desk by the door into the CJF's pre-booking area, where he served as a liaison between the City and the County as prisoners were transferred between the two entities. Perry remained in his soiled clothing from earlier in the day, was fully shackled, and was wearing the spit mask. Corrections Officer Kieckbusch noticed that the mask had blood on it. And, while Corrections Officer Kieckbusch had been told that Perry was a combative prisoner, she did not observe that he was combative when he arrived to the CJF. While Corrections Officer Kieckbusch testified that Perry "didn't appear to want to walk, " she could not say whether Perry was able to walk. Again, taking the facts in the light most favorable to Perry, we assume that he was unable to walk when he arrived at the County facility and was not behaving in a combative manner, which, to the extent relevant, is for a jury to determine.

         The four officers placed Perry on the floor. While surrounded by the officers, Perry continued to slowly squirm. Approximately a minute and a half later, the officers moved Perry to the bench across from the nurses' station. As he was moved, his pants fell down around his ankles, exposing his clearly soiled undergarments. After he was placed on the bench, Perry continued to writhe and shake. Because the video does not have sound, it is unclear how much noise he made.

         According to the County's policy, each inmate received a medical screening "to identify inmates who perhaps ought not be accepted into jail custody until they have been medically evaluated and cleared for admission." While Corrections Officer Kieckbusch sought a nurse to attend to Perry Sergeant Fatrena Hale, attempted to communicate with Perry. But, Perry's responses were unintelligible. In her report, Sergeant Hale noted that "[b]lood was seeping" from Perry's spit mask.

         According to Nurse Nicole Virgo, a registered nurse who worked four shifts a month at the CJF as a "pool nurse, " an unidentified correctional officer approached her and asked her to evaluate Perry. That correctional officer told Nurse Virgo that Perry had recently been to the hospital. So, Virgo looked at his medical records, which indicated that Perry had suffered from a seizure and had been given seizure medication at the hospital earlier that day. The discharge notes did not indicate that Perry had a heart condition or had suffered from chest pain or difficulty breathing.

         At 8:45 p.m., Nurse Virgo approached Perry and spoke to him from a distance. Although she contends that she knew something was wrong with Perry the minute she saw him, the video clearly shows that she never touched Perry, never took his vitals, and did not remove his spit mask. While Nurse Virgo observed that Perry was not labored in his breathing, she also observed "profuse blood" on his spit mask and that he had soiled himself-two conditions that she believed were signs of distress. During this interaction, Corrections Officers Kieckbusch and Arndt physically restrained Perry on the ...


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