United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2019∗

Decided November 4, 2019

Before

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1626

ERIC D. CONNER,

Plaintiff-Appellant,

v.

SCOTT RUBIN-ASCH, et al.,

Defendants-Appellees.

Appeal from the United States District 

Court for the Eastern District of Wisconsin.

No. 17-CV-1388

David E. Jones,

Magistrate Judge.

O R D E R

Eric Conner, a Wisconsin inmate, sued a prison psychologist and eight 

correctional officers for retaliation and deliberate indifference because they removed

him from clinical observation, despite his threats of self-harm, after he refused to speak 

with psychological staff. Conner attempted suicide later that day. The district court 

entered summary judgment for the defendants. Because Conner lacks evidence that any 

defendant acted with deliberate indifference or a retaliatory motive, we affirm the 

judgment.

 

∗ We have agreed to decide the case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-1626 Page 2

When Conner transferred to the Wisconsin Secure Program Facility in Boscobel 

in September 2016, he had a long history of threatening suicide and attempting to harm 

himself (or, possibly, simulating self-harm) while incarcerated. It is undisputed that

Conner threatened self-harm in an attempt to obtain a private cell and a facility transfer

while at another prison. Conner’s first suicide attempt after transferring to WSPF

occurred in February 2017. He affixed a bedsheet to his showerhead and wrapped it 

around his neck. His feet never left the ground, and he sustained no physical injuries. 

After this incident, prison staff removed Conner from administrative segregation

(where he was housed because of his diagnoses of anti-social personality disorder and 

PTSD) and placed him under clinical observation in the psychological services unit 

(“PSU”). Clinical observation is a temporary, nonpunitive status for inmates who pose 

an immediate danger to their own safety or the safety of others due to mental illness. 

While under observation, Conner refused to speak with PSU staff except to state that he 

wanted to be transferred to the Wisconsin Resource Center in Oshkosh.

Conner was released from observation in early March after he told a doctor that 

he was not having thoughts of self-harm. But the next day, he tied a sheet to his neck 

and climbed a fence in the recreation yard. He climbed down from the fence 

voluntarily, without sustaining any physical injuries, and PSU staff placed him back on 

clinical observation. Conner made several additional attempts, or at least simulations, of 

self-harm while under clinical observation: at various times, he banged his head on his 

window, placed a breakfast bag over his head, and wrapped his security smock around 

his neck. Each time, Conner stopped his attempt before prison staff had to intervene, 

and he did not sustain any injuries from these incidents. PSU staff frequently tried to 

evaluate Conner’s mental state and need for continued observation, but Conner refused 

to speak with them, or with an outside psychiatrist. He would speak only with security 

staff.

On April 20, 2017, the prison’s supervisory psychologist, Dr. Scott Rubin-Asch, 

ordered Conner’s removal from clinical observation because he had not demonstrated 

recent suicidality (he last attempted self-harm on April 4), and he was not engaging 

with PSU staff. Rubin-Asch believed that removing Conner from clinical observation 

would improve the likelihood that Conner would have constructive dialogue with 

psychological staff. Within minutes of hearing about this order, Conner told a 

correctional officer—who told Rubin-Asch—that he would harm himself if he was 

forced off clinical observation. The doctor attested that it was his professional opinion 

that Conner’s statements were not genuine and were motivated by his desire to remain 
No. 19-1626 Page 3

where he was. Conner refused to leave his cell, so a team of correctional officers forcibly 

removed him and placed him back in administrative segregation. Conner made more

threats of self-harm during the extraction. 

Several hours later, Conner tied his clothing around the showerhead of his cell 

and around his neck for approximately one minute. When a guard threatened to 

intervene, Conner voluntarily removed the clothing from his neck, then walked to his 

cell door to be handcuffed. He did not sustain any injuries, but was placed back under

clinical observation. 

Conner sued Rubin-Asch and the correctional officers who removed him from 

his observation cell for their deliberate indifference to his threats of self-harm and 

suicidal feelings. He also claimed that Rubin-Asch retaliated against him by removing 

him from observation for refusing to speak to PSU staff. During discovery, Conner 

moved for spoliation sanctions when he learned prison officials did not download the 

video of his cell extraction to external media before the camera’s memory was taped 

over. Conner had twice asked the prison’s security director, within two months of the 

extraction, to save the video. The parties both moved for summary judgment, and the 

district court granted the defendants’ motion. The court also denied Conner’s motion 

for spoliation sanctions. 

On appeal, Conner maintains that Rubin-Asch violated the Eighth Amendment 

by removing him from clinical observation despite his threats of self-harm. He further 

contends that the doctor’s medical opinion—that Conner’s suicide attempts and threats 

of self-harm were not genuine—is unreliable since the doctor did not document that

opinion in his earlier medical reports. Conner also maintains that the correctionalofficer defendants were deliberately indifferent by following Rubin-Asch’s order to 

remove him from observation despite his threats of self-harm.

To survive summary judgment on his deliberate indifference claims, Conner 

needed evidence from which a reasonable jury could find that the defendants 

knowingly and unreasonably failed to respond to an objectively serious risk of harm.

See Farmer v. Brennan, 511 U.S. 825, 844–45 (1994); Wilson v. Adams, 901 F.3d 816, 820 

(7th Cir. 2018). When the serious risk at issue is attempted suicide, a defendant acts 

knowingly and unreasonably if that defendant “(1) subjectively knew the prisoner was 

at substantial risk of committing suicide and (2) intentionally disregarded the risk.”

Lisle v. Welborn, 933 F.3d 705, 716–17 (7th Cir. 2019) (quoting Collins v. Seeman, 462 F.3d 

757, 761 (7th Cir. 2006)). This requires “more than mere or gross negligence, but less 
No. 19-1626 Page 4

than purposeful infliction of harm.” Matos v. O'Sullivan, 335 F.3d 553, 557 (7th Cir. 

2003).

Here, a reasonable jury could not find that the defendants intentionally 

disregarded a known, substantial risk of harm because Rubin-Asch made a reasoned 

decision that removing Conner from clinical observation was safe and was the best 

decision for Conner’s mental health needs. See Farmer, 511 U.S. at 845. After months of 

closely observing Conner in the PSU, Rubin-Asch concluded that his threats and 

attempts at self-harm were not genuine, and that Conner did not actually pose a danger 

to himself. Because Rubin-Asch’s decision was based on his professional judgment, it 

must be afforded deference. See McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013). And, 

contrary to Conner’s assertion that the doctor’s opinion was contrived, the record 

shows that Rubin-Asch had previously expressed concern that Conner wished to 

remain under clinical observation because he believed it could result in a facility 

transfer. See Wilson, 901 F.3d at 821. The record contains no medical evidence or expert 

testimony contradicting the doctor’s opinion or otherwise demonstrating that his 

decision was “a substantial departure from accepted professional judgment.” McGee, 

721 F.3d at 481.

And, finally, the correctional-officer defendants who extracted Conner from his 

cell were entitled to rely on Rubin-Asch’s professional opinion that Conner no longer 

belonged under clinical observation. Id. at 483. Indeed, the record shows that no 

correctional officer had the authority to override PSU staff’s judgment about whether 

any inmate should be on clinical observation.

Conner next argues that the district court erred in concluding that Rubin-Asch

did not retaliate against Conner by removing him from clinical-observation status after 

he refused to speak to PSU staff. The district court determined Conner made a 

prima facie claim of retaliation, namely: (1) he engaged in a protected activity; (2) he 

suffered a deprivation likely to deter him from engaging in the protected activity; and 

(3) his protected activity was a motivating factor in the defendant’s decision to retaliate. 

See Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018). But the court concluded that 

Rubin-Asch met his burden of showing that Conner would have been removed from 

clinical observation even if he had not refused to talk.

Rubin-Asch established that he would have released Conner from observation 

even if he had cooperated with PSU staff’s attempts to evaluate him. See Hasan v. U.S. 

Dep’t. of Labor, 400 F.3d 1001, 1005–06 (7th Cir. 2005). Clinical observation is a temporary 
No. 19-1626 Page 5

restrictive environment for inmates who are a present danger to themselves or others.

Rubin-Asch made a professional judgment based on his own observations that Conner 

was not a current threat to himself, and the record supports that he removed Conner 

from observation on that basis. Conner offered his own speculation but no evidence to 

rebut Rubin-Asch’s justification or show that it was pretextual. See id. at 1006; see Thayer 

v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).

Conner last argues that the district court abused its discretion by not sanctioning 

the defendants for failing to preserve the video of his cell extraction. See FED. R. CIV. P.

37(e). A spoliation sanction is proper only when a party has a duty to preserve evidence 

because it knew, or should have known, that litigation was imminent. Trask-Morton v. 

Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008). Furthermore, a showing of bad 

faith—like destroying evidence to hide adverse information—is a prerequisite to 

imposing sanctions for missing evidence. Id. Conner presented no evidence that any 

defendant destroyed the video to hide illicit conduct; he therefore cannot rebut the 

defendants’ attestations that the video was written over (pursuant to normal practices) 

without first having been downloaded and saved. At most, Conner points to 

negligence, not bad faith. Therefore, the district court did not abuse its discretion in 

denying sanctions. 

AFFIRMED