In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2933

Martha Sanville, individually and as
trustee for the heirs and next of kin
of Matthew A. Sanville, deceased,

Plaintiff-Appellant,

v.

Gary McCaughtry; Jane Gamble; Curtis Bender;
Ivy Scaburdine (f/k/a Ivy Podish); Eric
Schroeder; Glenn Gilgenbach; Jodine Deppisch; Narinder
Saini, Ph.D.; Gary Ankarlo, Ph.D.; Stephen
J. Fleck, Ph.D.; Yogesh Pareek, Ph.D.; Carl
L. Cihlar, Ph.D.; John Does Nos. 1-5, all
in their individual and official
capacities,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin, Milwaukee Division.
No. 99 C 715--Rudolph T. Randa, Judge.

Argued February 13, 2001--Decided September 21, 2001



  Before Manion, Kanne, and Evans, Circuit
Judges.

  Kanne, Circuit Judge. Matt Sanville, a
mentally ill inmate incarcerated at the
Waupun Correctional Institution in
Wisconsin, committed suicide when he was
left unsupervised for approximately five
hours. His mother, Martha Sanville, filed
this lawsuit in federal district court,
alleging that a number of prison
officials violated Matt’s Eighth
Amendment rights through their deliberate
indifference to Matt’s/1 serious medical
needs. While we affirm the district
court’s dismissal of plaintiff’s claims
against the prison wardens and the
medical professionals who treated Matt,
we find that Mrs. Sanville has pleaded
sufficient facts to survive a motion to
dismiss her complaint against several
prison guards. We thus affirm in part and
reverse in part, and remand the remaining
claims for further proceedings.

I.   History
  Matt Sanville suffered, as do a
significant number of prison inmates,
from a serious mental health problem. At
various times in his life, doctors
diagnosed Matt with major depressive
disorder, aggressive conduct disorder,
bipolar disorder, dysthymic disorder,
adjustment disorder, mixed personality
disorder, and manic depression. While
they might have disagreed as to Matt’s
precise medical condition, the doctors
unanimously agreed that Matt needed to be
medicated to control his illness. His
adult life was characterized by a history
of suicide attempts, hospitalizations,
and drug treatments directed towards
managing his multiple mental disorders.

  Matt did not agree that he needed to be
medicated and, during an unmedicated
period in July 1997, he was arrested for
assaulting his mother. When prosecutors
charged Matt with assault, his court-
appointed attorney moved for a competency
evaluation, which the state judge
ordered. The medical professional who
examined Matt, Harlan R. Heinz, Ph.D.,
concluded that he was "significantly
depressed and acutely psychotic,
rendering him incompetent to stand
trial." He also found that Matt 1)
"showed significant lack of insight by
reporting his thinking was fine," 2) "was
not able to make his needs known," and 3)
was "not competent to refuse medication
or treatment for his mental condition."
Matt’s attorney agreed with this
assessment and prepared an incompetency
defense.

  Matt, however, would not admit his
incompetency, and his first attorney
withdrew as a result. Matt’s second
attorney acceded to Matt’s assessment of
his own competency and Matt was allowed
to plead no contest to the battery
charge. His presentence investigation
report noted that Matt had received
thirty conduct reports during his
confinement--for such infractions as
covering his cell light, plugging
toilets, and throwing feces and urine on
staff--all of which occurred while he was
not medicated. At sentencing on January
5, 1998, Matt’s mother pleaded with the
court not to send Matt to prison,
asserting that he was not a danger as
long as he was medicated. The prosecutor
concurred, stating that he disagreed with
the PSI’s recommendation that Matt should
go to prison--he even went so far as to
note that "I do not believe that sending
a person to the Wisconsin State Prison
system is the best place to deal with a
person’s mental illness." Although the
Judge noted that Matt was probably
mentally ill, he sentenced him to the
maximum term in prison. Matt began
serving his sentence at the Dodge
Correctional Institute (hereinafter
"Dodge") on January 7, 1998.

  Mrs. Sanville wrote a letter to the
evaluator at Dodge explaining that Matt’s
conduct was the result of mental illness
and relaying the opinions conveyed about
Matt’s mental health during the court
proceedings. On Matt’s second day at
Dodge, Dr. Carl L. Cihlar, the first of
the doctor-defendants, performed an
intake screening of Matt and incorrectly
reported that Matt did not have a mental
illness. While noting Matt’s history of
suicide attempts, the report also stated
that Matt had never taken any medication
to help with "anxiety, depression, mood
swings, thinking problems, hearing voices
or seeing things, or controlling [his]
behavior." Plaintiff alleges that Dr.
Cihlar was aware of Matt’s troubled
history, including the conclusions of Dr.
Heinz’s pretrial competency evaluation.
Towards the end of the month, Matt was
again evaluated, this time by a
classification specialist at Dodge, and
she determined that Matt was presently
medicated with psychotropic drugs. Her
report also noted Matt’s numerous
behavioral problems during his
unmedicated stay in the county jail.

  Matt arrived at Waupun Correctional
Institution (WCI) on February 26, 1998. A
week after his admission, Matt was seen
for a psychiatric follow-up by Dr. Yogesh
Pareek, the second of the doctor-
defendants. Because Matt was having
problems with nausea and vomiting, Dr.
Pareek advised him to go off his
psychotropic medication until the
problems subsided. As it turned out, Matt
had an inflamed appendix, which required
an emergency appendectomy on March 6,
1998.

  While in the hospital, Matt remained off
his medication. On March 10, his mother
contacted the hospital to express concern
that Matt had been taken off his
medication. After the prison was
contacted, the staff physician assured
her that Matt’s anti-psychotic medication
had been reordered.

  On March 26, 1998, about a week after
his release from the hospital, Matt saw
Dr. Pareek for the second time. Dr.
Pareek noted that Matt had a "history of
psychotic disorder, but he [was] refusing
to take medication" and that Matt denied
"ever hearing voices or ever seeing
things [or] ever being paranoid." The
doctor decided to discontinue
psychotropic medication "at the patient’s
request." His notes indicated that he
would "see [Matt] again in eight weeks.
The patient is competent and he knows
what is right and wrong." A week later,
however, Matt and Dr. Pareek had another
session. Matt had not taken any
medication since the date of the
appendicitis incident, March 5, and indi
cated that he no longer wanted medication
or psychiatric services. Dr. Pareek’s
treatment plan stated "I will not
schedule him as he is not taking any
medication and he does not want to."

  While he was unmedicated, Matt’s
behavior became increasingly bizarre. In
April, he defied an order to return to
his cell, for which he was sent to
solitary confinement. In early May, he
scrawled venomous, nonsensical threats on
his bed sheets ("kill the rapest [sic]
and snitches" and "go to hell"). On June
9, he flushed his socks and underwear
down the toilet. Yet he also displayed
some evidence of competence (perhaps
consistent with his diagnosis that he
exhibited "very paranoid behavior with
sense of reality"). The day prior to the
sock flushing incident he requested that
he be placed in an anger management class
(he was placed on a waiting list). He
also filed a lawsuit based upon the
failure of one correctional officer to
respond to his requests for medical
attention during the appendicitis
incident.

  In late June, Matt asked to see a
psychiatrist. When Dr. Pareek arrived,
Matt reported no mental health concerns
and persisted in his decision to remain
off his medication. Dr. Pareek provided
neither treatment nor medication to Matt.
At this point, Matt had lost seventeen
pounds since his admission to WCI.
  On July 11, 1998, Matt assaulted another
inmate and was placed in segregation.
Just prior to being placed there, Matt
drafted a document that he entitled his
last will and testament. This document--
collected by correctional staff at an
undetermined time--was addressed to
Matt’s mother and contemplated Matt’s
imminent death.

  While in segregation, Matt’s bizarre
behavior continued. After receiving
conduct reports for refusing to return
his meal tray and bag lunch, Matt was
served "nutri-loaf"--a meal ground up
into a loaf that could be eaten without
utensils. He did not eat these loaves and
thus began to lose weight rapidly. His
subsequent autopsy confirmed that he lost
about forty-five pounds during his five
months at WCI, nearly twenty-five of
which were in the final month of his life
(after his placement in segregation).
Matt wrote to his mother and complained
about the nutri-loaf;/2 upon receipt of
the letter, she called the manager of the
Health Services Unit at WCI and relayed
her concern that Matt was paranoid,
suicidal, and in serious trouble.
  On July 24, 1998, Dr. Stephen Fleck, the
third doctor-defendant, visited Matt in
his cell in response to Mrs. Sanville’s
phone call. Dr. Fleck was, however,
satisfied with Matt’s insistence that he
had no plans to harm himself. Matt again
refused clinical and psychiatric
services. Dr. Fleck’s report did not make
any reference to Matt’s weight.

  Matt repeatedly asked the guards to
bring him a regular meal but his requests
were ignored. He reported to many prison
employees that he was unable to eat the
nutri-loaf. His failure to eat and his
corresponding weight loss was allegedly
known to, at a minimum, the prison guards
who fed him (including defendant Ivy
Scaburdine).

  Matt mailed a letter to his mother on
July 27, 1998, which prison officials
read. The letter conveyed that Matt
thought he was being retaliated against
because of the lawsuit that he had filed,
asked for help in finding an attorney,
requested clinical services, and again
told Mrs. Sanville that he was not eating
the nutri-loaf. That same day Matt
requested to see someone from clinical
services, and Dr. Fleck visited him at
his cell. Dr. Fleck’s report indicated
that Matt said his mood was not good but
that "[h]e denied any thoughts and plans
to harm himself . . . ." The notes
continued:

I again recommended a face-to-face. He
again refused, stating "I can take care
of myself." I again suggested he put in
an interview request to see Y. Pareek,
M.D., Psychiatry, to discuss the option
of medication. He stated, "I don’t need
any drugs, I’m handling it myself." . . .
I will follow up in four to six weeks to
monitor his status.

Later the same day, Matt again requested
to see someone from clinical services.
Dr. Fleck received this request on July
28, and scheduled an appointment for July
30, 1998, three days after the request.
Matt told prison guards sometime during
these two days that he was going to kill
himself, but no action was taken.

  On July 29, 1998, the day of Matt’s
suicide, correctional officer Ivy
Scaburdine, one of the guard-defendants,
made her morning rounds to pass out
breakfast. Matt had covered all of the
openings in his cell with paper--the
vents, the call box, and the window--so
that it was nearly impossible to see
inside. This was in violation of prison
policy. Scaburdine did not serve Matt
breakfast, instead skipping his cell and
continuing on her rounds. When she made
the rounds to serve lunch, Matt’s window
was still covered, thus she did not serve
him at that time either. All of the
defendant guards observed Matt’s covered
cell window at some point during the day,
but none took any action.

  While his cell window was covered, Matt
ripped his pillowcase into strips, wet
the strips in his sink, and then tied the
strips together, thus fashioning a noose.
He slid the noose around his neck and
tied it to the handicap railing along the
west wall of his cell. He managed to
position himself so that his weight would
pull the noose tighter until he gradually
lost consciousness and died.

  At approximately 2:48 p.m., correctional
officer Eric Schroeder, one of the guard-
defendants, was making his rounds. When
he passed Matt’s cell he noticed that
"inmate Sanville was sitting on his floor
in his cell up against the left wall of
his cell with the left side of his body
against the wall." He further noted that
"[Matt] had his window partially covered
with toilet paper making it somewhat
difficult to see into his cell."
Schroeder, who was not regularly assigned
to the segregation unit, decided not to
take any action. He had been instructed
that he should assume inmates who ignored
him were simply refusing supplies.

  Schroeder claims that he returned to
Matt’s cell at 2:57 p.m. with officer
Glenn Gilgenbach, another guard-
defendant. Gilgenbach offered Matt his
dinner several times and Matt did not
respond. Schroeder wrote in his report
that "I then went to the window and
observed that he hadn’t moved since
supplies were offered, nine minites [sic]
ago." Schroeder then attempted to call
the sergeant for the segregation block,
Ann Ingolia, but was unable to reach her
because the battery in his radio was
dead.

  At approximately 3:00 p.m., Schroeder
left to retrieve Ingolia. Ingolia
followed Schroeder to the door of the
cell, peered inside, and noticed that
Matt had a sheet around his neck. She
instructed Gilgenbach and Schroeder to
continue feeding the other inmates while
she called Captain Don Strahota to alert
him to a possible suicide. Ingolia then
returned to the cell to wait for the
first responders. Upon arrival, they
attempted unsuccessfully to revive Matt.
At 3:10 p.m., rescue efforts ceased and
Matt was pronounced dead. Matt was last
seen alive by the defendants at 10:00
a.m.

  The prison file provided to the doctor
who performed the autopsy indicated "a
past history of suicide attempt" and
further disclosed that, as of February 7,
1998, Matt was "psychotic but in
remission with a Navane treatment."
Matt’s weight was estimated at 110-120
pounds. The autopsy concluded that "[a]
diagnosis of suicide is reasonable but it
sure would have been nice to have him
more persuaded to take medication and
seek psychiatric help."

  Mrs. Sanville filed this lawsuit in the
United States District Court for the
Eastern District of Wisconsin on July 25,
1999, raising federal claims under 42
U.S.C. sec. 1983-- alleging that the
various defendants violated Matt’s Eighth
Amendment rights--and pendent state law
negligence and medical malpractice
claims. The defendants moved to dismiss
the action pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure and
filed a corresponding motion for a
protective order prohibiting discovery
until the court ruled on the motion to
dismiss. On June 29, 2000, the court
granted defendants’ motion to dismiss the
federal claims on qualified immunity
grounds and declined to retain
jurisdiction of the ancillary state law
negligence claims. See Sanville v.
McCaughtry, No. 99-C-715, slip op. (W.D.
Wis. June 28, 2000). Plaintiff appeals
this judgment.

II.    Analysis

A.    Standard of Review

  We review dismissals under Rule 12(b)(6)
of the Federal Rules of Civil Procedure
de novo, examining a plaintiff’s factual
allegations and any inferences reasonably
drawn therefrom in the light most
favorable to the plaintiff. See Marshall-
Mosby v. Corporate Receivables, Inc., 

, 326 (7th Cir. 2000). Dismissal
under Rule 12(b)(6) is proper only if the
plaintiff could prove no set of facts in
support of her claims that would entitle
her to relief. See Conley v. Gibson, 

, 45-46, 

, 

(1957); Veazey v. Communications &
Cable of Chi., Inc., 

, 854
(7th Cir. 1999). "[I]f it is possible to
hypothesize a set of facts, consistent
with the complaint, that would entitle
the plaintiff to relief, dismissal under
Rule 12(b)(6) is inappropriate." 

(citing Graehling v.
Village of Lombard, Ill., 

,
297 (7th Cir. 1995)).

  The district court ruled that the
defendants were entitled to qualified
immunity. See Sanville, slip op at 31.
"Qualified immunity shields government
officials performing discretionary
functions from liability for civil
damages unless their conduct violates
clearly established statutory or
constitutional rights of which a
reasonable person would have known." See
Campbell v. Peters, 

, 699
(7th Cir. 2001) (citing Anderson v.
Creighton, 

, 640, 

, 

(1987)). We review
a district court’s grant of qualified
immunity de novo. See 

reach the merits of Mrs.
Sanville’s claims, there are two
important issues which we must address,
neither of which were discussed by the
district court or raised by the parties.
Plaintiff alleges that the defendants are
liable under 42 U.S.C. sec. 1983, which
"requires proof that the defendants were
acting under color of state law and that
the defendants’ conduct violated the
plaintiff’s rights, privileges, or
immunities secured by the Constitution or
laws of the United States." Chavez v.
Ill. State Police, 

, 651 (7th
Cir. 2001) (quotation omitted). Mrs.
Sanville sued each of the defendants in
their official and individual capacities,
and the district court dismissed all of
these claims based upon the doctrine of
qualified immunity. Sanville, slip op. at
31. The dismissal of the official
capacity claims was not proper, as "it is
well established that the qualified
immunity doctrine does not apply to
official capacity claims." Ruffino v.
Sheahan, 

, 700 (7th Cir.
2000).

  Yet there is another twist. Official
capacity suits are actions against the
government entity of which the official
is a part. See Wolf-Lillie v. Sonquist,

, 870 (7th Cir. 1983). To sue
the defendants in their official
capacities means that Mrs. Sanville is
really suing the state entities: the
Waupun Correctional Institution and the
Dodge Correctional Institution./3 As we
have recognized previously, however,
"section 1983 does not authorize suits
against states." Power v. Summers, 

, 818 (7th Cir. 2000). We
conclude, therefore, that the official
capacity claims seeking money damages
from the defendants should have been
dismissed on the basis that they may not
be sustained under sec. 1983.

  We thus turn to the remaining claims--
the individual capacity claims to which
the defendants asserted qualified
immunity as a defense. The court must
first decide whether the plaintiff’s
factual allegations would, if proven,
"show the state actor’s conduct violated
a constitutional right." Billings v.
Madison Metro. Sch. Dist., 

,
816 (7th Cir. 2001) (citing Saucier v.
Katz, 

, 2156 (2001)). If
so, then we proceed to the second step of
the analysis, which is to determine
"whether the right was clearly
established." 

with this
framework, we begin by reviewing
plaintiff’s substantive claim that the
defendants violated Matt’s Eighth
Amendment rights; where necessary, we
will proceed to consider whether those
rights were clearly established at the
time of the violation.


B. Did the Defendants’ Conduct Violate
Matt’s Eighth Amendment Rights?

  Prison officials have a duty, in light
of the Eighth Amendment’s prohibition
against cruel and unusual punishment, to
"ensure that inmates receive adequate
food, clothing, shelter, and medical
care." Farmer v. Brennan, 

,
832, 

, 

(1994). To determine whether an inmate’s
Eighth Amendment rights were violated by
a deprivation, we examine the
allegedviolation both objectively and
subjectively. See 

"First, the
deprivation alleged must be, objectively,
sufficiently serious." 

Second, the mental state of the
prison official must have been "one of
deliberate indifference to inmate health
or safety." 

  Plaintiff alleges, essentially, that the
conditions of Matt’s incarceration were
such that there was a substantial risk
that Matt would commit suicide and that
the defendants were deliberately
indifferent to this risk. When a claim is
based upon the failure to prevent harm,
in order to satisfy the first element the
plaintiff must show that the inmate was
"incarcerated under conditions posing a
substantial risk of serious harm." 

without saying that "[s]uicide is a
serious harm." Estate of Cole by Pardue
v. Fromm, 

, 261 (7th Cir.
1996) (quotation omitted); see also
Estate of Novack ex rel. Turbin v. County
of Wood, 

, 529 (7th Cir.
2000); Hall v. Ryan, 

, 406
(7th Cir. 1992) (recognizing that
prisoners have a constitutional right "to
be protected from self-destructive
tendencies," including suicide) (citing
Joseph v. Brierton, 

(7th
Cir. 1984)). In this case, not only was
there a risk of serious harm but that
harm actually materialized--Matt
committed suicide. It would be difficult
to think of a more serious deprivation
than to be deprived of life, and thus
plaintiff’s claim clearly satisfies the
first element. Cf. Reed v. McBride, 

, 852 (7th Cir. 1999) ("A
condition is objectively serious if
failure to treat it could result in
further significant injury or unnecessary
and wanton infliction of pain.")
(internal quotation omitted) (collecting
cases).

  We should note that the injury could be
framed in a more particularized fashion
with respect to the various groups of
defendants. The need for a mental illness
to be treated could certainly be
considered a serious medical need. See

(citing Hudson v. McHugh, 

, 863 (7th Cir. 1998), for the
proposition that unmedicated epilepsy
"posed a ’serious threat’ to a prisoner’s
health"). Further, there is the
additional possibility that Matt was
physically unable to eat the nutri-loaf
that he was being served (the complaint
states both that he refused his food and
that he was unable to eat it). We have
held that withholding food from an inmate
can, in some circumstances, satisfy the
first Farmer prong. See 

"the amount and duration of the
deprivation" would be relevant to whether
the deprivation amounted to an objective
violation of the Eighth Amendment).
Whether these facts would support a
finding that Matt was denied food is not
something we need to resolve, as we have
already concluded that Matt demonstrated
a serious medical need.

  We therefore turn to the second element
of the Farmer framework: whether the
defendants were deliberately indifferent
to the risk that Matt would commit
suicide. See 

. The
meaning of the "deliberate indifference"
prong has recently been clarified by the
Supreme Court: "a prison official cannot
be found liable under the Eighth
Amendment for denying an inmate humane
conditions of confinement unless the
official knows of and disregards an
excessive risk to inmate health or
safety; the official must both be aware
of facts from which the inference could
be drawn that a substantial risk of
serious harm exists, and he must also
draw the inference." 

. With this framework in mind, we
consider Mrs. Sanville’s claims against
the various defendants.

1. The Medical Defendants: Cihlar,
Pareek, Fleck/4

  Plaintiff alleges that the doctors knew
that Matt’s refusal to accept care was a
symptom of his mental illness and that by
deferring to his stated wishes, they
deliberately disregarded the substantial
risk that he would commit suicide. Thus,
because they allowed him to remain
unmedicated without taking further
precautions to ensure his safety,
plaintiff alleges that the doctors were
deliberately indifferent to Matt’s
serious medical need.

  This situation is undeniably tragic. Yet
"a complaint that a physician has been
negligent in diagnosing or treating a
medical condition does not state a valid
claim of medical mistreatment under the
Eighth Amendment." Estelle v. Gamble, 

, 106, 

, 

(1976). To avoid dismissal, Mrs.
Sanville must plead sufficient facts to
demonstrate that a fact-finder could
infer deliberate indifference from the
doctors’ treatment decisions.
"[D]eliberate indifference may be
inferred . . . when the medical
professional’s decision is such a
substantial departure from accepted
professional judgment, practice, or
standards as to demonstrate that the
person responsible did not base the
decision on such a judgment." 

-62. We examine Mrs.
Sanville’s claims against each of the
doctor-defendants in turn.

  Plaintiff asserts that Dr. Cihlar,
during the screening interview at Dodge,
incorrectly found that Matt did not have
a mental health illness and that he was
not medicated with anti-psychotics. While
Dr. Cihlar’s conclusions about Matt’s
mental health may have been negligently
drawn, stating that Matt did not have a
mental illness does not establish
deliberate indifference to Matt’s
condition. To violate the Eighth
Amendment the official must knowingly
disregard a substantial risk to inmate
health or safety, see 

. Not noticing that an inmate exhibits
a serious medical need does not violate
the Constitution because not noticing
that a need exists is not considered
"punishment" under relevant Supreme Court
precedent. See 

Further, we note that his failure to
recognize Matt’s condition did not
prevent Matt from getting subsequent
treatment for his mental illness.

  Mrs. Sanville accuses Dr. Pareek and Dr.
Fleck of failing to provide treatment and
medication to Matt even though they were
aware of Matt’s history of mental
illness, which was well-documented in his
base file at WCI. She also claimed that
they knew that Matt was incapable of
making his own decisions regarding
medication and that he had a history of
asking for help and then denying any need
for it. Dr. Pareek advised Matt to
discontinue taking his medication--based
upon his professional judgment that the
medicine was causing Matt’s stomachaches-
-and later determined that Matt was
competent and did not need to be
medicated. While plaintiff takes issue
with the correctness of these decisions,
a complaint that a physician negligently
treated Matt’s mental illness does not
state a valid Eighth Amendment medical
mistreatment claim. See 

. Plaintiff thus asserts that
advising Matt to stop taking his
medication was such a substantial
departure from accepted professional
judgment that a jury could infer
deliberate indifference. To determine
whether this is the case, we ask whether
a minimally competent doctor in Dr.
Pareek’s shoes would have been aware of a
substantial risk that allowing Matt to
remain unmedicated would result in
serious harm. See 

-
63. Here, we cannot find that the risk
was such that Dr. Pareek’s actions were
deliberately indifferent. Matt saw Dr.
Pareek on March 5, March 26, April 2, and
in late June of 1998. The last of these
dates was over a month before Matt
committed suicide. In April, Matt stated
that he no longer wanted medication or
psychiatric services, and Dr. Pareek
deferred to those wishes. At the time of
Dr. Pareek’s June visit, Matt had been
off his medication for three months
(since March 5) and there is no
indication that Matt was, at that time,
suicidal or in danger of harming himself.
Recognizing that "a medical professional
must consider [an inmate’s] conflicting
rights," Dr. Pareek seemingly determined
that Matt’s desire to be free from
medication outweighed his right (or need)
to receive psychotropic drugs for his
mental illness. See 

(noting that an inmate had both an
Eighth Amendment right to be restrained
so that he would not injure himself and a
Fourteenth Amendment right to be free
from restraint).

  Although we wish Dr. Pareek could have
prevented Matt’s suicide, physicians do
not practice with a crystal ball in hand.
We thus conclude that plaintiff has not
presented evidence from which a trier of
fact could find that Dr. Pareek was
deliberately indifferent to the
substantial risk that Matt would commit
suicide. See 

.

  Finally, we turn to Dr. Fleck. Dr. Fleck
saw Matt two times in the days
immediately preceding Matt’s suicide, and
his notes indicate that he was concerned
about Matt’s welfare. He recommended that
Matt come in for a face-to-face visit and
that he see Dr. Pareek to discuss the
option of medication. Matt responded by
stating: "I don’t need any drugs, I’m
handling it myself." Mrs. Sanville points
out that Matt was dangerously underweight
at the time of Dr. Fleck’s June 27, 1998
visit. She alleges that, by deferring to
the opinion of a mentally ill and
suicidal inmate, Dr. Fleck abdicated his
professional judgment and that, at the
least, he should have taken extra
precautions with regard to Matt’s health
and well-being. These claims are
undeniably emotionally appealing. That a
doctor would defer to the discretion of a
mentally ill inmate may be troubling to a
layperson, particularly when the doctor
appeared to recognize that Matt needed to
be medicated. And we would hope that
additional precautions would have been
taken if they were thought to be
necessary. Plaintiff has not provided us
with any reason, however, to find that
Dr. Fleck’s choices were not made in the
exercise of his professional judgment.
While Mrs. Sanville would have preferred
the doctor to be less deferential to
Matt’s requests and more forceful in pur
suing the option of medicating him, we
agree with the district court that Dr.
Fleck’s actions and medical notes counsel
against a finding of deliberate
indifference. Sanville, slip op. at 21.

  In sum, the evidence does not support a
finding that the medical professionals at
WCI were deliberately indifferent to
Matt’s serious medical needs. He was seen
by medical professionals eleven times
over the five months that he was
incarcerated and most of these visits
took place shortly after they were
requested. Plaintiff points to Dr.
Flick’s failure to see Matt promptly
after his July 27th request, yet Dr.
Flick had already seen Matt once that
day. There is no indication that the
doctor was aware that Matt was suicidal
or in serious harm at that time (if, in
fact, Matt was suicidal at that time).
Further, Dr. Flick did not even receive
the request until July 28th, at which
time he scheduled Matt for an appointment
on July 30th. Under the circumstances,
this delay cannot be considered
deliberately indifferent. See Gutierrez
v. Peters, 

, 1374 (7th Cir.
1997) (finding no deliberate indifference
where the inmate "repeatedly received
treatment over [a] ten-month period and
that at most he experienced an isolated
occasion or two where he did not receive
prompt treatment"); cf. 

(distinguishing prior Seventh
Circuit cases where "the totality of the
[inmate’s] medical care" counseled
against a finding of deliberate
indifference, and holding that the court
was faced with one of those instances in
which "mistreatment for a short time
would be evidence of a culpable state of
mind") (quotation omitted).

  It is troubling that this young man’s
suicide might have been prevented had he
been taking his prescribed psychotropic
medication. The ultimate problem seems to
be that none of the doctors ever noted
that Matt might be a suicide risk, an
observation that would not have seemed
too obscure considering his mental
illness and history of suicide attempts.
Yet the doctors’ failure to correctly
diagnose and treat Matt is not, in this
instance, evidence of anything more than
medical malpractice. Though we find that
plaintiff’s claims against the doctor-
defendants were properly dismissed by the
district court, we note that plaintiff is
certainly free to pursue her state law
medical malpractice claims in state
court./6

2. The Guards: Scaburdine, Schroeder,
Gilgenbach, John Does Nos. 1-5/7

  Mrs. Sanville accuses several
correctional officers at WCI of knowing
that Matt was likely to commit suicide
but failing to reasonably respond to this
risk. To be liable under the Eighth
Amendment for an inmate’s suicide, "a
prison official must be cognizant of the
significant likelihood that an inmate may
imminently seek to take his own life and
must fail to take reasonable steps to
prevent the inmate from performing this
act." 

(citations
omitted). However, "an Eighth Amendment
claimant need not show that a prison
official acted or failed to act believing
that harm actually would befall an
inmate; it is enough that the official
acted or failed to act despite his
knowledge of a substantial risk of
serious harm." 

.
Whether a prison official had the
requisite knowledge is a question of
fact. See 

circumstances
suggest that the defendant-official being
sued had been exposed to information
concerning the risk and thus ’must have
known’ about it, then such evidence could
be sufficient to permit a trier of fact
to find that the defendant-official had
actual knowledge of the risk." 

Prison officials can still show that
they were unaware of the risk--this is a
subjective inquiry--or that they were
aware of the risk but that they responded
reasonably to it, "even if the harm
ultimately was not averted." 

45. Thus we ask 1) were the prison
officials aware of the substantial risk
that Matt might take his own life and, if
so, 2) did they "take reasonable steps to
prevent the inmate from performing this
act." 

.

a.   Awareness of the Substantial Risk

  Plaintiff claims that, once Matt covered
his cell openings with toilet paper, the
guards were aware of the substantial risk
that Matt would commit suicide. She
asserts that the guards already knew: 1)
that Matt had written a last will and
testament contemplating his imminent
death and telling his mother how to carry
on his affairs after he died; 2) that
Matt told certain guards that he planned
to commit suicide; 3) that he had
attempted suicide in the past; 4) that he
had a long history of mental illness; 5)
that he was not eating and was
dangerously thin; and 6) that his mother
had called the prison to alert them that
he was paranoid, suicidal, and in
trouble.
  It seems quite possible that, under the
facts as alleged by the plaintiff, the
guards could have been aware of the risk
that Matt would commit suicide.
Particularly if Matt told them that he
was suicidal, that alone should have been
enough to "impute awareness of a
substantial risk of suicide." 

. It is true that "strange be
havior alone, without indications that
that behavior has a substantial
likelihood of taking a suicidal turn, is
not sufficient to impute subjective
knowledge of a high suicide risk to jail
personnel." 

Thus, if the
inmate was a normally functioning
individual with no history of mental
illness or suicide attempts, who had not
recently lost nearly one-third of his
body weight or written letters to his
mother contemplating his death, then
maybe papering up his cell would not be
enough to put the guards on notice that
something was wrong. Matt was not a
normally functioning individual, however,
and it would not be inconsistent with the
alleged facts to find that he did "put
jail officials on notice that there was a
significant likelihood that he would
attempt to harm himself." 

Amendment does not allow officials to
turn a blind eye to the activities of an
inmate, particularly one who is suicidal.
We thus find that plaintiff’s complaint
should not have been dismissed because
she has alleged sufficient facts that, if
proven, would entitle her to relief
against the WCI guards. See 

(finding that plaintiff
raised a genuine issue of material fact
regarding the defendants’ knowledge of
Howard’s suicidal tendencies); cf.

(Williams, J.,
dissenting) ("[W]e have more than
Novack’s strange and bizarre behavior. We
also have evidence that jail officials
knew that Novack was a suicide risk and
had a possible mental illness.").
  Defendants contend that they were not
aware of any risk that Matt would harm
himself, and assert that plaintiff cannot
survive the first Farmer prong. We find
their arguments unconvincing. First,
defendants contend that the only way the
guards would have known many of these
facts is if they had read Matt’s prison
file, which they characterize as an
unreasonable endeavor. While we do not
need to address whether the guards should
be familiar with the mental health
histories of the prison’s inmates, it
seems contrary to defendants’ assertions
that the guards could have been aware of
many of the facts alleged by plaintiff
without reading Matt’s file (for example:
that Mrs. Sanville had called the prison
to express concern over Matt’s condition,
and that Matt had written a last will and
testament, lost a significant amount of
weight, and said that he planned to
commit suicide). Second, defendants
allege that the fact that Matt was
requesting food other than the nutri-loaf
and that he had filed a complaint the
week before his suicide indicates that
the guards would not have thought that
Matt was a substantial suicide risk. What
the guards thought, however, is not an
issue for us to resolve--it is an issue
for a trier of fact. See 

. Third, the defendants criticize
the plaintiff for doing nothing more than
alleging facts. Yet, under the
requirements of notice pleading, Mrs.
Sanville does not have to prove her
factual and legal allegations at this
stage, she need only show that relief is
possible. See 

;
Bartholet v. Reishauer A.G. (Zurich), 

, 1078 (7th Cir. 1992).
Plaintiff has certainly met this
standard. Of course, this is not the end
of the inquiry. During discovery, the
parties will undoubtedly explore in
greater detail whether the "prison
official[s] had the requisite knowledge
of a substantial risk" to Matt’s health.

.

b. Whether the Defendants Took
Reasonable Steps

  While it remains to be seen whether the
defendants were actually aware of the
substantial risk to Matt’s health, there
seems to be no evidence that the
defendants "[took] reasonable steps to
prevent the inmate from [committing
suicide]" as is required by our case law.

. Matt was last
seen alive by the defendants at 10:00
a.m. In the five hours during which
Matt’s cell window was covered with
toilet paper, there was no apparent
attempt to discern whether he was stable.
The guards did not use the video camera
to check on Matt, nor did anyone take any
action until approximately 3:00 p.m. If
the defendants were aware of the alleged
risk, failing to determine what was going
on in Matt’s cell could easily be
considered egregious enough to rise to
the level of deliberate indifference. The
evidence here clearly supports an
inference that at least some of the
guards, if not all of them, were aware of
Matt’s serious medical need and
demonstrated deliberate indifference to
that need.

  There are a number of reasons why
defendants assert that the guards cannot
be found liable, none of which we find
meritorious. Contrary to defendants’
allegations, the fact that we have
already found that the doctors cannot be
held liable does not erect a legal bar
that prevents anyone else in the prison
from being held liable. See 

-08 (finding that the claims
against the doctor defendants amounted,
at most, to medical malpractice, but
remanded to the Court of Appeals for
consideration of "whether a cause of
action has been stated against the other
prison officials" including the prison
warden). Defendants further assert that
the guards cannot be held liable because
they relied upon the doctors’
determination that Matt was not a suicide
risk. The record, however, at least as
currently developed, does not support
this assertion. There is no evidence
indicating that any of the doctors
actually determined that Matt was not
suicidal, much less that they then
informed the guards that Matt was not
suicidal and that the guards then decided
not to act based on that information. Our
review is intended to determine whether
the plaintiff could prevail under any set
of facts, not whether the defendant could
win under any set of facts. Likewise, the
fact that Matt was seen by mental health
professionals eleven times during his
incarceration does not prevent us from
finding that someone--whether a guard or
a warden or otherwise--was deliberately
indifferent to his serious medical needs.
The guards’ liability is not premised
upon the acts or omissions of the medical
professionals, it is premised upon their
own deliberate indifference to Matt’s
condition.

  We will thus consider, subsequently,
whether this was a clearly established
law at the time of defendants’ actions to
determine whether this claim should be
reinstated. We first turn to consider
plaintiff’s claims against the final
group of defendants--the wardens.

3. The Wardens: Warden Gary McCaughtry,
Deputy Warden Jane Gamble

  Mrs. Sanville alleges that the wardens
failed to adopt and enforce adequate
suicide prevention policies and that they
also failed to train and supervise the
guards and doctors./8 Because we have
already determined that plaintiff’s
official capacity claims against
McCaughtry and Gamble should have been
dismissed, we need only consider the
claims against the wardens in their
individual capacities. The plaintiff
faces a substantial challenge because
failure to train claims are usually
maintained against municipalities, not
against individuals, see, e.g., Williams
v. Heavener, 

, 532 (7th Cir.
2000); Kitzman-Kelley v. Warner, 

, 459 (7th Cir. 2000), and, in the
Eighth Amendment context, such claims may
only be maintained against a
municipality. See 

(noting that the standard applied in City
of Canton v. Harris, 

, 109 S.
Ct. 1197, 

(1989), was
not "an appropriate test for determining
the liability of prison officials under
the Eighth Amendment as interpreted in
our cases").

  The doctrine of respondeat superior does
not apply to sec. 1983 actions; thus to
be held individually liable, a defendant
must be "personally responsible for the
deprivation of a constitutional right."

(quotation
omitted); see also 

("Section 1983 creates a cause of
action based upon personal liability and
predicated upon fault."). A defendant
"will be deemed to have sufficient
personal responsibility if he directed
the conduct causing the constitutional
violation, or if it occurred with his
knowledge or consent." 

. This definition recognizes that
the individual does not have to have
participated directly in the deprivation.
See McPhaul v. Board of Comm’rs of
Madison Co., 

, 566 (7th Cir.
2000) (quotation omitted). Thus, a
supervisor may be liable for "deliberate,
reckless indifference" to the misconduct
of subordinates. See 

. ("The supervisors must know about
the conduct and facilitate it, approve
it, condone it, or turn a blind eye for
fear of what they might see.")
(quotations omitted).

  Mrs. Sanville accuses defendants of
tolerating a number of transgressions
which she contends rose to the level of
systematic failure: 1) on four separate
occasions, three guards ignored the paper
on Matt’s cell; 2) the camera in his cell
was not active the entire three weeks he
was in segregation; 3) Matt lost nearly
one-third of his body weight while in
segregation; and 4) the guards allegedly
received no suicide prevention training.
None of these allegations, however,
suggest that the wardens were personally
responsible for any deprivation. Nor does
plaintiff allege that they "turned a
blind eye" to any particular conduct of
the remaining defendants. We thus agree
with the district court that plaintiff
has alleged no facts that would support a
finding of liability with respect to the
wardens.

C. Was the Right Clearly Established at
the Time of the Violation?
  We must now consider whether the guards
may be held liable under sec. 1983, or
whether they are entitled to qualified
immunity. We have recently set forth the
framework for making this determination:

Qualified immunity protects government
officials from individual liability under
Section 1983 for actions taken while
performing discretionary functions,
unless their conduct violates clearly
established statutory or constitutional
rights of which a reasonable person would
have known. Thus, before liability will
attach, the contours of the right must be
sufficiently clear that a reasonable
official would understand that what he is
doing violates that right.
Brokaw v. Mercer County, 

,
1022 (7th Cir. 2000) (internal quotation
and citations omitted). There can be
little debate that it was clearly
established, long before 1998, "that
prison officials will be liable under
Section 1983 for a pretrial detainee’s
suicide if they were deliberately
indifferent to a substantial suicide
risk." 

. Further,
"[i]t was clearly established in 1986
that police officers could not be
deliberately indifferent to a detainee
who is in need of medical attention
because of a mental illness or who is a
substantial suicide risk. Deliberate
indifference to a prisoner’s medical
needs constitutes cruel and unusual
punishment in violation of the Eighth
Amendment." 

Thus, we find
that the guards are not immune from
individual liability in this case./9

III. Conclusion

  In light of the foregoing analysis, we
AFFIRM the district court’s dismissal of
Mrs. Sanville’s Eighth Amendment claims
against the doctor-defendants and the
wardens, and REVERSE the district court’s
dismissal of her claims against the
guards.

FOOTNOTES

/1 For the sake of clarity, we will refer to Matt
Sanville as "Matt," and to Martha Sanville as
"Mrs. Sanville."

/2 He wrote a letter to his mom, dated July 23,
1998, stating: "the guards are trying to feed me
gag loaf (nasty)--I can’t eat it."

/3 We take judicial notice of the fact that both
these entities are state prisons: the Waupun
Correctional Institution is a state penitentiary
and the Dodge Correctional Institution is the
correctional treatment center at Waupun. See Wis.
Stat. sec. 302.01.

/4 Plaintiff’s complaint also challenged the actions
of Narinder Saini, Ph.D., and Gary Ankarlo, Ph.D.
On appeal, plaintiff did not present analysis
with respect to these doctors, thus we do not
address them here.

/5 The Supreme Court has rejected the argument that,
under the subjective test for deliberate indif-
ference, "prison officials will be free to ignore
obvious dangers to inmates." 

. However, even if a risk is obvious--i.e.,
even if it was well- documented in Matt’s file
that he had a mental illness that, if left
untreated, would pose substantial risk to his
health--the prison official is not liable under
the Eighth Amendment if "the obvious escaped
him." 

n.8

/6 The district court’s denial to exercise supple-
mental jurisdiction over these claims is still
appropriate given the disposition of those claims
here.

/7 Plaintiff’s complaint also challenged the actions
of Curtis Bender and Jodine Deppisch. On appeal,
plaintiff did not present analysis with respect
to these defendants, thus we do not address them
here.

/8 The defendants contend that these allegations
were not in plaintiff’s district court complaint.
We found otherwise: both were included in Count
I (alleging violations of Matt’s Eighth Amendment
rights), paragraph 139.

/9 The district court relied upon State Bank of St.
Charles v. Camic, 

(7th Cir. 1983),
to support its conclusion that the defendants
were entitled to qualified immunity. See Sanville
v. McCaughtry, No. 99-C-715, slip op. at 14 (W.D.
Wis. June 28, 2000). Camic did not address quali-
fied immunity; rather, that case found that the
district court’s grant of summary judgment was
proper because the plaintiff did not raise "a
question of material fact as to whether the
defendants had knowledge of . . . suicidal ten-
dencies on the part of [the inmate]." 

.