In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1321 

LLOYD N. JOHNSON, 

Plaintiff-Appellant, 

v.

KAREN RIMMER, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Eastern District of Wisconsin. 

No. 2:14-cv-01408-LA — Lynn Adelman, Judge. 

____________________ 

ARGUED FEBRUARY 22, 2019 — DECIDED AUGUST 30, 2019 

____________________ 

Before RIPPLE, MANION, and BRENNAN, Circuit Judges. 

RIPPLE, Circuit Judge. Lloyd Johnson brought this action 

under 42 U.S.C. § 1983 against various employees and officials of the Milwaukee County Medical Health Complex 

(“MHC”), MHC itself, Milwaukee County, and the County’s 

Department of Health and Human Services. His claims center on an incident of substantial self-mutilation that occurred 

while he was in the care of MHC. Mr. Johnson alleged that 

the defendants violated his Fourteenth Amendment rights 
2 No. 18-1321 

by providing constitutionally inadequate medical care, 

which led to his self-mutilation. Mr. Johnson also brought 

claims under Monell v. Department of Social Services, 436 U.S. 

658 (1978), in which he alleged that the institutional defendants maintained unconstitutional policies, procedures, and 

customs that caused his injuries. He further maintained that 

defendants engaged in a conspiracy to cover up the constitutionally inadequate care. In addition to these federal claims, 

Mr. Johnson brought associated state-law claims. 

The defendants moved for summary judgment, and the 

district court granted the motion in favor of all defendants 

on all of Mr. Johnson’s federal claims. It declined to retain 

jurisdiction over the state-law claims. Mr. Johnson now 

brings this appeal, challenging only the district court’s decision in favor of two individual defendants: Dr. David Macherey and Nurse Ade George. For reasons set forth in the 

following opinion, we affirm the judgment of the district 

court. 

I. 

BACKGROUND 

A. 

Mr. Johnson suffers from a variety of mental ailments, including paranoid schizophrenia, major depressive disorder 

recurrent, obsessive compulsive disorder, and borderline 

personality disorder. Starting in mid-2011, he had been admitted intermittently to MHC for treatment. During one of 

these stays, on March 18, 2012, Mr. Johnson substantially 

harmed himself, leading to this present suit. 

The relevant sequence of events began on February 28, 

2012, when Mr. Johnson voluntarily admitted himself to 
No. 18-1321 3

MHC with complaints of depression, delusional thoughts, 

auditory hallucinations, and suicidal ideations. Mr. Johnson’s intake records at that admission reflect that he previously had attempted suicide or self-harm and that he told 

the intake nurse that “his ears are in the shape that they are 

in (keloids) because he pulled on his penis in the past and 

after that, they grew the keloids.”1 He was diagnosed with a 

psychotic disorder but was released twenty-two hours after 

admission. MHC discharged Mr. Johnson because his condition had improved; he had asked to be released; and the attending physician had determined there were no grounds to 

detain him at MHC against his will. 

On March 3, 2012, while staying at his stepmother’s 

house, Mr. Johnson used a pair of scissors to sever his testicles, cut off both his earlobes, and remove a portion of skin 

from his penis. Milwaukee Police took him to Froedtert 

Hospital for treatment. He remained there until March 8, 

when he was transferred to MHC pursuant to a petition for 

emergency detention.2 At MHC, he was assigned a private 

bedroom with a private bathroom in the Intensive Treatment 

Unit (“ITU”), a locked area reserved for the highest-risk patients.3 Upon admission, he was placed on 1:1 observation 

 

1 R.78-1 at 2. A keloid is a type of raised scar that can occur where the 

skin has healed after an injury. 

2 See Wis. Stat. § 51.15(1)(ar)(4) (providing that the state may take a person into temporary custody if the individual is mentally ill and evinces a 

substantial probability of physical harm to himself). 

3 All patients and visitors are searched before entering the ITU. They are 

prohibited from having any sort of sharp objects on their persons while 

in the ITU. 
4 No. 18-1321 

status, which required that he never be left alone or out of 

sight of an assigned nurse.4

On March 9, Mr. Johnson met with Dr. David Macherey 

for an incoming assessment. At the time, Dr. Macherey was 

the psychologist and treatment director in the ITU. He diagnosed Mr. Johnson with bipolar disorder5 and noted that the 

most recent episode was mixed,6 severe, and psychotic. 

Dr. Macherey concluded that Mr. Johnson’s explanations for 

his self-mutilation were various and delusional. He also determined that Mr. Johnson had auditory hallucinations, difficulty concentrating, poor self-esteem, and impaired judgment. He specifically noted Mr. Johnson’s lack of concern 

about his recent behavior. As a result of these conclusions, 

 

4 This regimen includes when the patient is asleep or using the bathroom. Policies provide that while either a nurse or doctor may initiate 1:1 

observation, a physician must review and confirm a nurse-initiated observation. Further, any 1:1 observation must be reevaluated every twenty-four hours to determine whether the heightened observation should 

continue. 

5 Dr. Macherey described bipolar disorder as 

tend[ing] to follow a pattern where typically a person becomes 

manic, the mania runs its course, and quite often, without treatment, a person might enter a depressive episode following the 

mania. And then there can also be periods of fairly stable behavior where the person, for all intents and purposes, doesn’t appear to have a mental illness. 

R.69-2 at 11–12 (Macherey Dep. 40:18–41:13). He also asserted that, with 

treatment, people with bipolar disorder could stay stable indefinitely. 

6 A mixed state occurs when a bipolar individual experiences both mania 

and depression at the same time. Persons in a mixed state are at a higher 

risk of self-harm. Id. at 12 (Macherey Dep. 41:17–42:09). 
No. 18-1321 5

Dr. Macherey determined that Mr. Johnson was at significant risk of self-harm. He ordered that Mr. Johnson remain 

on 1:1 observation to ensure against further self-mutilating 

behavior. 

That same day, Dr. Thomas Harding, the Medical Director of MHC, also examined Mr. Johnson. He concurred with 

Dr. Macherey’s assessment and prescribed a variety of drugs 

to treat Mr. Johnson’s mental ailments. Dr. Harding and 

Dr. Macherey then established a goal for Mr. Johnson to “report freedom from [auditory hallucinations] and demonstrate clear[,] reality[-]based thinking within 7 days.”7 

Later that day, Mr. Johnson found a metal object and inserted the object into his pants. Mr. Johnson could have used 

this object to harm himself, but the staff quickly noticed his 

action and took the object from him. Nurse Remedios 

Azcueta testified that when Mr. Johnson hid the metal object, he said that “he wanted to die” and that “[i]t hurts.”8 

Over the next five days,9 Mr. Johnson continued to be on 

the 1:1 observation protocol. He remained in a state of anxiousness, and had disorganized and tangential thoughts, delusions, and auditory hallucinations. Mr. Johnson reported 

 

7 R.78-7 at 1. The defendants assert that this goal referred to conditions 

that must be met prior to discharge from MHC; Mr. Johnson contends 

that this goal refers to conditions that must be met before he could be 

removed from 1:1 observation status. 

8 R.69-6 at 13–14 (Azcueta Dep. 48:11–49:11). 

9 On March 13, the petition for Mr. Johnson’s emergency detention was 

withdrawn, and he signed an agreement voluntarily admitting himself to 

MHC. 
6 No. 18-1321 

that he did not regret his act of self-harm. Further, although 

the records indicate that such thoughts became more sporadic over time, Mr. Johnson continued to express that he 

wished to remove his genitals. For example, on the morning 

of March 14, he told a nurse that he still wanted to harm 

himself by removing his genitals and, if he could, he would 

do it at MHC. That same day, Mr. Johnson reported that his 

medications were not working. 

On March 15, Mr. Johnson’s treatment team, which included Dr. Macherey, Dr. Harding, Nurse Mary Holtz, psychiatric social worker Candace Coates, and occupational 

therapist Sue Erato, met with Mr. Johnson to determine the 

next steps in his treatment. The record reflects that Mr. Johnson participated cooperatively in this conference, reported 

that the medication was helping, and indicated that the auditory hallucinations that he had been experiencing had become cloudy and less troublesome. Dr. Harding determined 

that Mr. Johnson was improving because he articulated a desire for therapy, was able to identify personal strengths and 

goals, slept better, denied having suicidal thoughts, and was 

future-oriented. Both physicians, however, noted that 

Mr. Johnson’s thought process still was disorganized. 

Mr. Johnson’s medical records reflect that the treatment goal 

for “absence of plan for self harm x3 days was extended.”10

Mr. Johnson remained on 1:1 observation following the 

meeting. 

Prior to the March 15 meeting, Nurse Holtz noted during 

her morning shift that Mr. Johnson continued to have bizarre 

 

10 R.70-8 at 2. 
No. 18-1321 7

thoughts, although he reported that his ongoing auditory 

hallucinations had become background noise. She also documented that Mr. Johnson denied having ideations of suicide or self-harm. She noted that Mr. Johnson told her that 

he could not believe that he had harmed himself on March 3. 

That night, Nurse Azcueta documented that Mr. Johnson 

was depressed.11 She also noted that Mr. Johnson’s 

“thought[s] [we]re improving [with] medications” and that 

he “stated no thoughts of self[-]harm.”12 Further, her notes 

reflect that Mr. Johnson interacted with other patients in the 

ITU and cooperated during his dressing change. 

Dr. Macherey next examined Mr. Johnson on March 16.13

He documented that, although Mr. Johnson remained depressed, his thinking had been organized for almost forty-eight hours and he denied any thoughts of self-harm.14

Dr. Macherey’s notes also reflect that Mr. Johnson still 

demonstrated loose associations and had not yet met the 

 

11 See R.70-12 at 29. 

12 Id. at 30; see also R.69-6 at 22 (Azcueta Dep. 82:12–83:15). 

13 March 16 was the last day that Dr. Macherey and Dr. Harding saw 

Mr. Johnson prior to Mr. Johnson’s incident of self-mutilation. Citing his 

medical records, Mr. Johnson notes that no medical doctor saw him over 

the weekend on March 17 and March 18. Relying on the same records, 

Mr. Johnson asserts that Dr. Macherey did not provide any instructions 

for Mr. Johnson’s ongoing care and safety during the weekend. The defendants respond that there was an onsite physician who was aware of 

Mr. Johnson’s needs. 

14 Mr. Johnson denies that forty-eight hours had passed since he had any 

thoughts of self-harm. He calculates the time as closer to thirty-six hours. 
8 No. 18-1321 

treatment plan’s goal of showing reality-based thinking for 

seven days without auditory hallucinations.15

During her morning shift that day, Nurse Holtz noted 

that Mr. Johnson’s “thoughts [we]re reality[-]based” and 

that he “denie[d] any thoughts of self-harm.”16 She also documented that Mr. Johnson was “depressed” about the harm 

he had done to himself and was “overwhelmed” by his medical problems.17 Around 3:00 p.m., Dr. Macherey removed 

Mr. Johnson from 1:1 observation status. He testified that he 

believed Mr. Johnson’s condition was improving because 

Mr. Johnson was no longer ignoring his medical problems, 

showed an appreciation for his acts of self-harm, and had 

stopped expressing an intent to harm himself. Dr. Harding 

concurred with Dr. Macherey’s assessment, and the rest of 

his treatment team did not object to the decision to remove 

Mr. Johnson from 1:1 observation.18

 

15 Defendants argue that this seven-day plan reflected goals that must be 

met prior to discharge from the MHC. See supra note 7. 

16 R.70-12 at 32. 

17 Id. 

18 Nurse Karen Rimmer testified that, during a debriefing following 

Mr. Johnson’s later act of self-mutilation, she did not agree with the decision to remove Mr. Johnson from 1:1 observation at the time the order 

was made and that other nurses thought similarly. She further testified 

that, when she made those statements at the debriefing, a supervisor said 

that the physicians had concerns about the costs of too many 1:1 observations. Nurse Rimmer was not part of Mr. Johnson’s treatment team but 

was assigned to his 1:1 care at different points. The defendants note that 

Nurse Rimmer did not work on March 16. Nurse Ade George also testified that it was not normal for patients to be removed from 1:1 observation status on Fridays going into weekends; March 16, 2012 was a Friday. 

(continued ... ) 
No. 18-1321 9

At MHC, the nursing staff conducted rounds every fifteen minutes to check on the whereabouts and well-being of 

each patient.19 Once removed from 1:1 observation, 

Mr. Johnson was subject to these well-being checks. Further, 

nurses conducted “change of shift rounds” at the start of 

 

( ... continued) 

Additionally, Dr. Mitchell Dunn, Mr. Johnson’s expert, opined that it 

was “premature” to remove Mr. Johnson from 1:1 observation and that 

Mr. Johnson should have remained on that level of observation for “another couple of weeks” and not “a matter of a couple of days.” R.79-11 at 

34, 35 (Dunn Dep. 118:05–07, 120:10–13). Dr. Dunn suggested that 

[t]he fact that Mr. Johnson had already made a significant attempt to cut off his penis and had already cut off 

his testicles and cut his earlobes indicated a desire and 

awareness to engage—and a willingness to engage in 

significant self-harmful behavior that ... was not fully 

appreciated by either Dr. Macherey or Dr. Harding. 

Id. at 26 (Dunn Dep. 87:12–18). Dr. Dunn noted that Mr. Johnson hurt 

himself just sixty hours after previously being discharged from MHC 

following his brief February visit; in Dr. Dunn’s opinion, Mr. Johnson’s 

behavior was unpredictable. Id. at 27 (Dunn Dep. 89:03–91:10). 

The defendants note that Dr. Dunn also testified that removal of a 

patient from 1:1 observation is a legitimate course of treatment and a 

matter of clinical judgment, and that there are no established standards 

in the field of psychiatry for the use of 1:1 observation. Additionally, 

Dr. Dunn stated that the length of time a patient should be under 1:1 observation varies based on specifics to the patient. Dr. Dunn further noted 

that 1:1 observation can be harmful to the patient because it is very intrusive. The defendant’s expert, Dr. Kenneth Robbins, opined that Dr. Macherey’s decision was reasonable. 

19 Additionally, at the relevant time, the ITU was divided into three 

“zones” for additional monitoring: one nursing staff member continuously roamed two of the zones while a second nurse did the same with 

the third zone. An additional nurse was assigned to assist the other two. 
10 No. 18-1321 

each shift; the nurses observed the whereabouts and wellbeing of each patient and checked the safety of each patient 

room, each bathroom, the common area, the treatment room, 

and all other areas of the ITU. Also, twice per shift, a staff 

member conducted environmental rounds, which involved a 

tour of the entire ITU with an emphasis on finding any safety hazards.20

On March 18, Nurse George evaluated Mr. Johnson on 

her morning shift. She noted that, although he presented a 

flat affect, he communicated better, continued to express regret for the harm he had caused himself, and denied having 

any hallucinations or harmful ideations. Sometime before 

12:30 p.m., Nurse George changed the dressing on 

Mr. Johnson’s wound.21 Mr. Johnson testified that she 

changed his dressing in his bathroom and used bandage 

scissors to cut the yellow, gauze-like bandages while doing 

so. Nurse George testified that she changed Mr. Johnson’s 

dressing in the treatment room, that she never used scissors 

during his treatment, and that she never carried scissors on 

her person.22 

 

20 Mr. Johnson asserts that the nurses did not always conduct their 

rounds as required by MHC policy. 

21 The time of the chart entry that recorded the dressing change was 

12:30 p.m. See R.79-12 at 46–47 (George Dep. 45:15–46:17). Consequently, 

the dressing must have been changed before that time. 

22 In records from an investigation conducted following Mr. Johnson’s 

incident of self-harm, Nurse Steven Ellison recounts that, in an interview 

on March 28, Nurse George claimed that she changed Mr. Johnson’s 

dressing in the treatment room and did not use scissors because the 

bandages were precut four-inch by four-inch squares and she could tear 

(continued ... ) 
No. 18-1321 11

At approximately 4:00 p.m. on March 18, Mr. Johnson 

approached the nursing station of the ITU. He handed the 

nursing staff a pair of bandage scissors and towels soaked in 

blood. He stated, “I cut my dick.”23 His penis was completely severed from his body. Mr. Johnson was rushed to 

Froedtert Hospital, where his penis was surgically reattached. 

In the immediate aftermath of the incident, multiple 

MHC employees reported that Mr. Johnson said that he 

found the scissors in his bathroom.24 He testified that the 

 

( ... continued) 

the tape with her hands. Other nurses testified that the bandages used 

were precut and that Mr. Johnson’s dressing changes did not require 

scissors. 

There is evidence that other nurses carried scissors on their persons 

and had used scissors during Mr. Johnson’s dressing changes on days 

prior to March 18. At the time, MHC did not have a specific policy regarding the use and inventory of scissors beyond the “safeguards on [sic] 

a psychiatric hospital.” R.69-13 at 5 (Bergersen Dep. 14:20). Additionally, 

though Nurse George testified that MHC policy required all dressing 

changes be done in the treatment room, other nurses, including supervisors, testified that dressing changes could be done in either the treatment 

room or the bathroom. 

23 R.78-4 at 18. 

24 In Nurse Steve Ellison’s documentation from his investigation, he recounts his own movements on that day and records that, immediately 

after the incident, Mr. Johnson told him, “Don’t be mad at no body [sic], 

they didn’t give them to me. They were in my room, a bathroom. It was a 

blessing they were left. I had to do it.” R.78-18 at 6. Nurse Suprina 

Gunn-Hayes, who was with Nurse Ellison at the time, wrote a memo 

recounting that Mr. Johnson said, “I cut my dick off it had to go, no one 

gave me the scissors I found them in the bathroom.” Id. at 8. Nurse Mike 

(continued ... ) 
12 No. 18-1321 

scissors were “[u]nder a pair of dry napkins, like hand towel 

napkins” in his bathroom and that he harmed himself shortly after finding them.25 The scissors that he used were metalhandled medical scissors manufactured by a company from 

which MHC had purchased that type of scissors. In his deposition, Mr. Johnson was unable to identify how the scissors 

got to the bathroom and how long they had been there.26 

According to the record evidence, no one saw scissors in 

Mr. Johnson’s bathroom prior to the incident. During the 

 

( ... continued) 

Sonney-Kamanski wrote an email to Jennifer Bergerson, then the director 

of acute services, around midnight on the day of the incident, recounting 

that the nursing assistant who had accompanied Mr. Johnson to the hospital reported that “[t]he patient told the ER DOC that he found the scissors in a bathroom.” Id. at 9. Nurse Azcueta also testified that Mr. Johnson said he had found the scissors in the bathroom; Nurse Azceuta does 

not recall when Mr. Johnson made this statement. Finally, Dr. Sara 

Coleman visited Mr. Johnson at Froedtert Hospital on March 19 to determine whether Mr. Johnson should be involuntarily committed to 

MHC following his physical treatment for his injury. She testified that 

Mr. Johnson told her that he found the scissors in the bathroom. 

25 R.69-1 at 18 (Johnson Dep. 65:03–09, 66:04–08). 

26 Mr. Johnson testified that he was asleep in his room from about 9:00 or 

10:00 a.m. until he woke at about 3:30 or 3:45 p.m. Id. at 17 (Johnson Dep. 

62:08–64:14). He stated that, when he woke, he cleaned his room, found 

the scissors, and injured himself. Id. at 17–18 (Johnson Dep. 64:18–66:08). 

Mr. Johnson responded “I don’t remember” or “I don’t recall” to the following questions: “Were there people that would come and clean your 

room or your bathroom during the time you were a patient?” Id. at 17 

(Johnson Dep. 64:01–02); “[D]o you know whether any staff checked in 

on you while you were sleeping that day?” Id. (Johnson Dep. 64:15–16); 

“And did you see any staff members between when you woke up and 

when you injured yourself?” Id. at 18 (Johnson Dep. 66:01–03). 
No. 18-1321 13

post-incident investigation, the housekeeping contractor 

who cleaned Mr. Johnson’s bathroom in the morning of 

March 18 reported that he did not observe any unusual 

items and that he did not have scissors on his cleaning cart 

or on his person.27 The daily documentation of nurse rounds 

“indicates that the bathroom had been checked for safety at 7 

AM and at 3 PM on 3/18 as part of the shift to shift 

handoff.”28 Nurse Azcueta testified that she checked the 

bathroom at the start of the afternoon shift on March 18 and 

that she did not find any contraband. The defendants admit, 

in their response to Mr. Johnson’s proposed findings of fact, 

that a nursing assistant conducted a well-being check just 

fifteen minutes prior to the incident.29

The record contains testimony that Mr. Johnson might 

have obtained scissors from somewhere other than his bathroom. Nurse Karen Rimmer testified that, when Mr. Johnson 

returned to MHC, he told her first that he found the scissors 

at Froedtert Hospital before he altered his story and said that 

 

27 The contractor also affirmed that the cleaning cart was always within 

his control or locked. 

28 R.78-2 at 9. The Root Cause Analysis and Improvement Plan, developed by MHC following the incident, notes that “interviews with staff ... 

suggested that while the sheets may be initialed, the checks are not always done.” Id. Bergerson testified that this statement referred to finding 

that rounds were not done in a standardized way and not that rounds 

were not done at all. 

29 Nurse Azcueta testified that she checked the bathroom during the 

well-being check in question. Later, she testified that a nursing assistant 

might have been the individual who did the well-being check. Nurse 

Rimmer testified that such was the case. The nursing assistant was not 

deposed. 
14 No. 18-1321 

he had found them in his bathroom.30 Mr. Johnson testified 

that he did not remember this conversation.31 Others stated 

that rubberized office scissors were kept in an electrical-type 

box located inside the nurse’s office; although the box was 

inside a locked or otherwise nurse-supervised office, the box 

itself was unlocked. Nurses also testified that metal-handled 

medical scissors were kept in a box or drawer in the treatment room. There also is evidence that, beyond patient 

treatment, the exam room was used at times as an “overflow 

interview room[], for patient phone calls and for lab 

draws.”32 MHC staff testified that patients always were supervised while in the treatment room and that the room was 

locked when not in use. Finally, Nurse Ellison, charged with 

the initial investigation into the incident, reported that he 

had observed Mr. Johnson talking to a housekeeping contractor around 1:45 p.m. on March 18.33 During Nurse Ellison’s investigation, this contractor explained that he knew 

Mr. Johnson, but had not seen him for a few years. The contractor recounted that Mr. Johnson “was smiling” and said, 

 

30 See R.69-10 at 8 (Rimmer Dep. 27:04–06). Nurse Rimmer also testified 

that she had been told that Mr. Johnson went to Froedtert Hospital at 

some point prior to March 18. According to the Root Cause Analysis and 

Improvement Plan, “[t]he patient did not leave the unit during his stay.” 

R.78-2 at 8. Nurse Azcueta testified that Mr. Johnson had an appointment scheduled on March 12 but that the appointment was rescheduled 

to March 19. 

31 See R.69-1 at 19 (Johnson Dep. 72:04–07). 

32 R.78-2 at 9. 

33 The housekeeping contractor estimated this conversation occurred at 

3:00 p.m. 
No. 18-1321 15

“I have to tell you something,” but that the contractor told 

him he could not talk at that time.34 According to the contractor, the exchange lasted no more than five minutes. 

MHC’s entire investigation into the incident was unable to 

determine the source of the scissors. 

B. 

On November 5, 2014, Mr. Johnson brought this action 

against the MHC, its employees and officials, Milwaukee 

County, and the Milwaukee County Department of Health 

and Human Services seeking damages for the injuries he suffered while in the care of MHC. In the first of his two federal 

claims under 42 U.S.C. § 1983, Mr. Johnson alleged that the 

defendants’ inadequate medical care deprived him of his 

right to substantive due process. According to Mr. Johnson, 

the defendants’ care was constitutionally inadequate because removing him from 1:1 observation status and allowing him to possess scissors created the circumstances that 

permitted him to injure himself. Second, relying on Monell v. 

Department of Social Services, 436 U.S. 658 (1978), Mr. Johnson 

alleged that MHC, Milwaukee County, and its Department 

of Health and Human Services maintained unconstitutional 

policies, procedures, and customs that had caused his injuries. Relatedly, Mr. Johnson claimed that the defendants 

conspired to cover up their constitutionally inadequate care. 

Mr. Johnson also brought state-law claims arising out of the 

same event. 

In due course, the defendants moved for summary 

judgment. They contended that, because Mr. Johnson volun-

 

34 R.78-18 at 10. 
16 No. 18-1321 

tarily had committed himself to MHC, he had no substantive 

due process rights under the Fourteenth Amendment. 

Moreover, they continued, any such claims failed on the 

merits. Removing Mr. Johnson from 1:1 observation, they 

submitted, was simply a matter of professional judgment. 

Under our decision in Collignon v. Milwaukee County, 163 

F.3d 982 (7th Cir. 1998), they submitted, removing him from 

such close observation was not such a serious departure 

from accepted practice as to constitute a constitutional deprivation. With respect to access to the scissors, the defendants contended that Mr. Johnson could not “cite to any evidence to suggest that the scissors he used to sever his penis 

were deliberately left for him to find.”35 Consequently, they 

argued, he was “left with nothing more than a claim that the 

scissors were accidentally or inadvertently left behind,” and 

“inadvertence [wa]s insufficient to sustain a § 1983 claim.”36 

In his opposition to the motion for summary judgment, 

Mr. Johnson contended that there was sufficient evidence to 

permit a jury to conclude that, by removing him from 1:1 observation, the defendants were deliberately indifferent to his 

serious medical condition. With respect to access to the scissors, Mr. Johnson contended that he was “entitled to the reasonable inference that a nurse left her bandage scissors in his 

bathroom.”37 “At a minimum,” Mr. Johnson continued, 

“there [wa]s a reasonable inference ... that the three nurses 

identified as conducting bandage changes in [his] room, 

 

35 R.67 at 15. 

36 Id. 

37 R.76 at 19 (emphasis added) (capitalization and bold removed). 
No. 18-1321 17

George, Azcueta and Plum were deliberately indifferent or 

recklessly disregarded [his] needs.”38 Other than noting that 

Nurse George’s bandage change was closest in time to his 

incident of self-harm, Mr. Johnson did not suggest how a jury might conclude that it was more likely than not that a particular nurse left the scissors in the bathroom. 

The district court granted the defendants’ motion. It held 

that Mr. Johnson could not sustain his claim regarding his 

removal from 1:1 care because no jury could find, on the record made by the parties, that the medical staff’s decision was 

a substantial departure from accepted professional norms. 

The court concluded that, at most, the facts showed that removing Mr. Johnson from 1:1 care was negligent, and mere 

negligence is not sufficient to sustain a constitutional claim. 

The district court also held that Mr. Johnson could not go 

forward with his claim that the defendants deprived him of 

substantive due process by exposing him to the scissors. It 

reasoned that mistakenly leaving scissors in the bathroom 

was only negligence. The court also noted that, regardless, 

Mr. Johnson failed to submit sufficient proof that any individual defendant was personally responsible for the scissors 

ending up in his possession.39 

The district court also rejected Mr. Johnson’s Monell claim 

and conspiracy claim. With no other federal claims remaining, the district court declined to exercise supplemental ju-

 

38 Id. at 21 (emphasis added).

39 Because the district court found there was no violation of 

Mr. Johnson’s rights, it did not address whether he had substantive due 

process rights as a voluntarily admitted patient in the first place. 
18 No. 18-1321 

risdiction over Mr. Johnson’s state-law claims. Mr. Johnson 

timely appealed. He only challenges the district court’s decision in favor of two individual defendants: Dr. David Macherey and Nurse Ade George. 

II. 

DISCUSSION 

We review the district court’s decision on summary 

judgment de novo. E.T. Prods., LLC v. D.E. Miller Holdings, 

Inc., 872 F.3d 464, 467 (7th Cir. 2017). Summary judgment is 

proper when the moving party demonstrates that there is no 

genuine dispute as to any material fact and that it is entitled 

to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when the evidence is such 

that a reasonable jury could return a verdict for the nonmoving party.” Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 

401 (7th Cir. 2018) (internal quotation marks omitted). “[A] 

court may not make credibility determinations, weigh the 

evidence, or decide which inferences to draw from the facts; 

these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 

770 (7th Cir. 2003). When ruling on a motion for summary 

judgment, we, like the district court, view the record in the 

light most favorable to the nonmoving party. Id. However, 

“inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Carmody, 

893 F.3d at 401 (internal quotation marks omitted). 
No. 18-1321 19

A. 

Before we address the merits of Mr. Johnson’s specific 

substantive due process claims,40 we first outline the general 

contours of the constitutional protections he asserts. In 

DeShaney v. Winnebago County Social Services Department, 489 

U.S. 189 (1989), the Supreme Court determined that the Due 

Process Clause of the Fourteenth Amendment “generally 

confer[s] no affirmative right to governmental aid, even 

where such aid may be necessary to secure life, liberty, or 

property interests of which the government itself may not 

deprive the individual.” Id. at 196. “[N]othing in the language of the Due Process Clause,” said the Court, “requires 

the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Id. at 195. Instead, 

“[t]he Clause is phrased as a limitation on the State’s power 

to act, not as a guarantee of certain minimal levels of safety 

and security.” Id. 

DeShaney does note, however, that “in certain limited circumstances[,] the Constitution imposes upon the State af-

 

40 In his reply brief, Mr. Johnson argues that the State violated his rights 

to procedural due process because it did not follow its procedures when 

committing him. Mr. Johnson forfeited this argument by raising it for the 

first time on appeal and in his reply brief. See Williams v. Dieball, 724 F.3d 

957, 961 (7th Cir. 2013) (“[A] party may not raise an issue for the first 

time on appeal.”) (quoting Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 

841 (7th Cir. 2010)). Mr. Johnson’s attempt to shoehorn this argument 

into the voluntariness analysis, see Reply Br. 2 (“Johnson’s confinement 

was not voluntary because he was denied all procedural due process 

rights” (bold omitted)), does not affect the result: as discussed above, the 

voluntary nature of Mr. Johnson’s commitment is not a question we need 

to decide. 
20 No. 18-1321 

firmative duties of care and protection with respect to particular individuals.” Id. at 198. First, due process rights arise 

when there is a special relationship between the government 

and the individual. Second, the state is constitutionally obligated to provide aid where it has created the danger. 

Mr. Johnson submits that both exceptions apply. He contends that Dr. Macherey and Nurse George can be liable under the special relationship exception because he was “not 

free to leave MHC’s custody.”41 Moreover, he argues that 

Nurse George affirmatively placed him in a danger he otherwise would not have faced. 

1. 

“When a state actor ... deprives a person of his ability to 

care for himself by incarcerating him, detaining him, or involuntarily committing him, it assumes an obligation to provide some minimum level of well-being and safety.” Collignon v. Milwaukee Cty., 163 F.3d 982, 987 (7th Cir. 1998) (citations omitted). This obligation includes meeting the person’s medical needs while he is in custody. Id. at 988–89. 

To determine whether the state provided adequate care, 

the Supreme Court requires that we “make certain that professional judgment in fact was exercised.” Youngberg v. Romeo, 457 U.S. 307, 321 (1982) (internal quotation marks omitted). This review is deferential: a professional’s decision42 “is 

 

41 Appellant’s Br. 34. 

42 The Court defined a professional as “a person competent, whether by 

education, training or experience, to make the particular decision at issue” and contemplated that someone with a degree in medicine or nursing was such a person in the case of treatment decisions. Youngberg v. 

Romeo, 457 U.S. 307, 323 n.30 (1982). 
No. 18-1321 21

presumptively valid” and “liability may be imposed only 

when the decision by the professional is such a substantial 

departure from accepted professional judgment, practice, or 

standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 

323. 

In a medical context, the Youngberg professional judgment standard first requires that the plaintiff show that his 

medical need was objectively serious. Collignon, 163 F.3d at 

989. Then, the plaintiff must prove that the treatment decision was a substantial departure from the accepted professional standard.43 Id. A plaintiff does so by establishing “(1) 

that the professional knew of the serious medical need, and 

(2) disregarded that need.” Id. Knowledge can be proved if 

the trier of fact can conclude the plaintiff’s medical need was 

“obvious.” Id. Disregard of that need can be proved “only if 

the professional’s subjective response was so inadequate that 

it demonstrated an absence of professional judgment, that is, 

 

43 Mr. Johnson submits that the professional judgment standard “requires a showing of something more than negligent wrongdoing but 

something less than intentional wrongdoing—something akin to criminal recklessness.” Appellant’s Br. 31. Although we have used this language when describing the deliberate indifference standard, see Collignon, 163 F.3d at 988, determining that Dr. Macherey or Nurse George 

violated Mr. Johnson’s substantive due process rights requires the more 

specific professional judgment standard, which applies to professionals 

like “physicians, psychiatrists, and nurses within their area of professional expertise.” Id. at 989. We have been clear that this standard asks 

whether the medical professional substantially departed from accepted 

professional standards. See King v. Kramer, 680 F.3d 1013, 1018–19 (7th 

Cir. 2012). 
22 No. 18-1321 

that no minimally competent professional would have so responded under those circumstances.” Id.

44

2. 

The state-created danger exception to the rule in 

DeShaney is also well established. 

 

44 Dr. Macherey and Nurse George argue that we need not consider 

whether the evidence establishes the special relationship exception to 

DeShaney’s general rule. According to Dr. Macherey and Nurse George, 

Mr. Johnson voluntarily committed himself to MHC and, therefore, the 

special relationship exception is inapplicable here. Courts generally 

agree that individuals who voluntarily admit themselves to a state-run 

mental health facility do not have substantive due process rights simply 

because they are in the state’s custody. See, e.g., Campbell v. State of Washington DSHS, 671 F.3d 837, 843 (9th Cir. 2011) (“Mere custody, however, 

will not support a special relationship claim where a person voluntarily 

resides in a state facility under its custodial rules.” (internal quotation 

marks omitted)); Torisky v. Schweiker, 446 F.3d 438, 446 (3d Cir. 2006)

(“[A] custodial relationship created merely by an individual’s voluntary 

submission to state custody is not a ‘deprivation of liberty’ sufficient to 

trigger the protections of Youngberg.”); Brooks v. Giuliani, 84 F.3d 1454, 

1466–67 (2d Cir. 1996) (holding there was no “duty to exercise professional judgment” because the plaintiffs were not under a “state-imposed 

restraint” (internal quotation marks omitted)). 

We have not addressed directly the extent to which the voluntariness 

of one’s committal to the state’s custody bears on due process rights under DeShaney. Like the district court, we do not need to determine 

whether a voluntary commitment can be de facto involuntary for the 

purposes of the Due Process Clause or whether Mr. Johnson’s commitment was functionally involuntary. As we will discuss later, even if 

Mr. Johnson has due process rights under the special relationship exception, he cannot show that Dr. Macherey and Nurse George deprived him 

of those rights. 
No. 18-1321 23

We have established a three-part test for such claims. 

King ex. rel King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 

817–18 (7th Cir. 2007).45 First, “the state, by its affirmative 

acts, must create or increase a danger faced by an individual.” Id. at 818. Second, “the failure on the part of the state to 

protect an individual from such a danger must be the proximate cause of the injury to the individual.” Id. Third, “the 

state’s failure to protect the individual must shock the conscience.” Id. “Only ‘the most egregious official conduct’ will 

satisfy this stringent inquiry. Making a bad decision, or even 

acting negligently, does not suffice to establish the type of 

conscience-shocking behavior that results in a constitutional 

violation.” Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 

647, 654–55 (7th Cir. 2011) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)) (citation omitted). Unlike the special relationship exception, custody or lack thereof plays no 

role in the state-created danger analysis. See Martin v. 

Shawano-Gresham Sch. Dist., 295 F.3d 701, 708 (7th Cir. 2002). 

B.

Turning to Mr. Johnson’s claims against Dr. Macherey, 

Mr. Johnson contends that Dr. Macherey provided inadequate medical care, in violation of his due process rights, by 

 

45 In King ex. rel King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 n.3 

(7th Cir. 2007), we noted that the circuits apply the state-created danger 

doctrine differently. We determined that the variations among the circuits did not “reflect fundamental doctrinal differences” because all approaches limit liability to “conduct that violates an individual’s substantive due process rights” by being “arbitrary in the constitutional sense, 

i.e., shocks the conscience.” Id. 
24 No. 18-1321 

removing him from 1:1 observation status. Analyzed under 

either of the exceptions to the DeShaney rule, our inquiry is 

basically the same: whether Dr. Macherey knew that 

Mr. Johnson suffered from an objectively serious condition 

and whether Dr. Macherey responded to that knowledge in 

a way “no minimally competent” medical professional 

“would have so responded under those circumstances.” Collignon, 163 F.3d at 989 (reviewing actions under professional 

judgment exception); Jackson, 653 F.3d at 654–55 (observing 

that a “bad decision” does not suffice to show a state-created 

danger; instead, when “public officials have time for reasoned deliberation in their decisions, the officials’ conduct 

will only be deemed conscience shocking when it ‘evinces a 

deliberate indifference to the rights of the individual’” (quoting King ex rel. King, 496 F.3d at 819)).46 No one disputes that 

Mr. Johnson’s medical condition was objectively serious or 

that Dr. Macherey knew of Mr. Johnson’s condition. Thus, 

we focus on whether no minimally competent medical professional would have removed Mr. Johnson from 1:1 care. 

We conclude that no reasonable fact finder could find that 

Dr. Macherey’s decision was outside the bounds of a competent medical professional’s judgment. 

Mr. Johnson points to several facts that, in his view, 

would support a jury’s determination that Dr. Macherey 

failed to exercise the constitutionally required level of professional judgment. First, Mr. Johnson expressed his wish to 

 

46 See Appellant’s Br. 30 (noting that “[u]nder either standard, a claim 

against a health care provider acting within his or her area of expertise 

requires a showing that the provider failed to exercise ‘professional 

judgment’” and citing Collignon). 
No. 18-1321 25

harm himself at least six to eight times while at MHC, including two days prior to his removal from 1:1 observation. 

Second, on the day after his arrival at MHC, Mr. Johnson 

managed to find a metal object and briefly insert it into his 

pants, stating that “he wanted to die” and that “[i]t hurts.”47

Third, at the time he was removed from 1:1 care, Mr. Johnson’s nurses documented that he was depressed, was overwhelmed, and still demonstrated loose associations. Similarly, Mr. Johnson had not yet met his treatment plan’s goal of 

showing reality-based thinking without auditory hallucinations when he was removed from 1:1 care. Fourth, one of 

Mr. Johnson’s caregivers at MHC, Nurse Rimmer, testified 

that she disagreed with the decision to remove Mr. Johnson 

from 1:1 care but was not asked her opinion prior to the decision. Likewise, Mr. Johnson’s expert opined that it was 

“premature” to remove Mr. Johnson from 1:1 observation 

and that Mr. Johnson should have remained on that status 

for “another couple of weeks” and not a “matter of a couple 

of days.”48 Fifth, Nurse Rimmer testified that, after the incident, one of her supervisors said that the physicians had 

concerns about the cost of 1:1 observations.49 Sixth, Dr. Ma-

 

47 R.69-6 at 14 (Azcueta Dep. 48:11–49:11). 

48 R.79-11 at 34–35 (Dunn Dep. 118:05–07, 120:10–13). 

49 This is an out of court statement offered for the truth of the matter asserted. We do not need to determine whether it falls outside of the definition of hearsay or within an exception to the hearsay rule because, 

even accepting that costs were a consideration, Mr. Johnson cannot show 

that no minimally competent medical professional would have removed 

him from 1:1 care. See Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016) 

(noting that “cost of treatment is a factor in determining what constitutes 

adequate, minimum-level care” as long as medical personnel do not 

(continued ... ) 
26 No. 18-1321 

cherey described in his own testimony that people with bipolar disorder can have periods of fairly stable behavior. Finally, Mr. Johnson first harmed himself just sixty hours after 

being discharged from his prior voluntary stay at MHC in 

February. 

We must assess the record in the light most favorable to 

Mr. Johnson, the nonmovant. We therefore accept the facts 

proffered by Mr. Johnson and make all reasonable inferences 

from those facts. But we do not ignore the other evidence 

suggesting that at least some minimally competent doctors 

would have, like Dr. Macherey, removed Mr. Johnson from 

1:1 observation status. Over the course of his care at MHC, 

Mr. Johnson underwent frequent assessments, and his medical team noted several facts indicating an improving condition, including that (1) after stating that he still wished to 

remove his genitals on the morning of March 14, Mr. Johnson stopped mentioning that he intended to harm himself 

and denied, on multiple occasions to different MHC staff, 

that he had any harmful ideations; (2) during a March 15 

treatment meeting with his treatment team, Mr. Johnson was 

cooperative, articulated a desire for therapy, was futureoriented, exhibited organized thinking, and identified personal strengths and goals; (3) starting on March 15, 

Mr. Johnson reported multiple times that his hallucinations 

were becoming cloudy and less troublesome; (4) on the night 

of March 15, Mr. Johnson reported that his medications were 

working; (5) on the day he was removed from 1:1 care, 

 

( ... continued) 

“simply resort to an easier course of treatment that they know is ineffective”). 
No. 18-1321 27

March 16, Mr. Johnson had denied any ideations of 

self-harm for almost two days; (6) over time, Mr. Johnson 

began to show a brighter affect and engage positively with 

other patients in the unit; and (7) Mr. Johnson had started 

sleeping better and eating more. 

Dr. Macherey, moreover, did not make the decision to 

remove Mr. Johnson from 1:1 observation unilaterally; 

Dr. Harding concurred with Dr. Macherey’s assessment that 

Mr. Johnson had improved enough to be removed from 1:1 

observation and other members of Mr. Johnson’s treatment 

team did not object to Dr. Macherey’s decision. Mr. Johnson’s own expert, despite his ultimate conclusion that removing Mr. Johnson from 1:1 care was premature, also testified that the intrusive nature of 1:1 observation can be harmful to the patient, that there are no established standards in 

the field of psychiatry for the use of 1:1 observation, and that 

removing a person from 1:1 care is a legitimate course of 

treatment. Finally, Dr. Macherey’s expert opined that the decision to remove Mr. Johnson from 1:1 care was reasonable. 

Dr. Macherey testified that he believed that Mr. Johnson’s condition had improved sufficiently to justify his removal from 1:1 observation. Specifically, Dr. Macherey noted that Mr. Johnson was no longer ignoring his medical 

problems, that he had showed an appreciation for his prior 

actions, and that he had stopped expressing an intent to 

harm himself. 

Considering Mr. Johnson’s documented improvement, 

the consensus of his treatment team that removing him from 

1:1 observation was appropriate, and the recognition that, at 

some point, 1:1 care is too restrictive for the patient, a reasonable factfinder could not find that no minimally competent 
28 No. 18-1321 

doctor would have made the same decision. As we have 

said, “evidence that some medical professionals would have 

chosen a different course of treatment is insufficient to make 

out a constitutional claim.” Petties v. Carter, 836 F.3d 722, 729 

(7th Cir. 2016). We make no determination as to whether 

Dr. Macherey was negligent; the Due Process Clause requires that Mr. Johnson demonstrate a more egregious lapse 

of professional performance. See Pyles v. Fahim, 771 F.3d 403, 

409 (7th Cir. 2014); Jackson, 653 F.3d at 654–55. The district 

court correctly granted summary judgment in favor of 

Dr. Macherey on Mr. Johnson’s constitutional claim. 

C.

We next examine Mr. Johnson’s constitutional claim 

against Nurse George. He submits two theories of liability. 

First, he argues that Nurse George violated his due process 

rights by providing inadequate medical care. Second, he 

contends that Nurse George affirmatively placed him in a 

position of danger in which he otherwise would not have 

been.50 Both theories require, in the end, that Mr. Johnson 

establish that Nurse George left the scissors used by 

Mr. Johnson to harm himself in his bathroom, despite her 

being aware of the specific risks that sharp objects posed to 

him. However, on the basis of the record made in the district 

court, no reasonable factfinder could determine that Nurse 

 

50 Mr. Johnson did not make this argument before the district court. The 

defendants, however, do not argue that Mr. Johnson forfeited his 

state-created danger theory by failing to raise it in the district court. Further, they have fully briefed the issue before us and presented defenses 

at oral argument. Consequently, we will address the argument on appeal.
No. 18-1321 29

George, as opposed to another treating nurse, left the scissors that Mr. Johnson eventually used. 

In an action under § 1983, the plaintiff must establish individual liability. See Estate of Perry v. Wenzel, 872 F.3d 439, 

459 (7th Cir. 2017). Thus, Mr. Johnson must be able to establish Nurse George’s “personal involvement in the alleged constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 

649, 657 (7th Cir. 2017). Before the district court, however, 

Mr. Johnson did not argue that there was sufficient evidence 

from which a jury could conclude by a preponderance of the 

evidence that Nurse George was the nurse who left the scissors in his bathroom. Rather, he simply argued that the district court should make a “reasonable inference that a nurse 

left her bandage scissors in his bathroom” and maintained, 

simultaneously, that Nurse George or Nurse Azcueta or

Nurse Plum left the scissors.51 Mr. Johnson did not point to 

any evidence that would allow the jury to winnow the field 

from three to one, nor did he otherwise explain how a jury 

could choose from among these three possible tortfeasors. 

We agree with the district court’s conclusion: the fact “[t]hat 

one of three individuals (only two of whom are defendants) 

may have left scissors in Johnson’s bathroom is not enough 

to establish individual liability.”52

Mr. Johnson did not submit sufficient evidence to establish that a jury could find by a preponderance of the evidence that Nurse George left scissors in his bathroom. Accordingly, we must affirm the grant of summary judgment. 

 

51 R.76 at 18, 20 (emphasis added) (capitalization and bold removed). 

52 R.88 at 9–10. 
30 No. 18-1321 

Conclusion 

The district court correctly granted the defendants’ motion for summary judgment. Its judgment is therefore affirmed. 

 AFFIRMED