Fahy wrote seemingly unanswered letters to his wife expressing his anticipation and

excitement to be released. On Thursday, September 28, 1999 Fahy received a detention order. It
was issued from the Circuit Court of Dupage County and stated “The Court having reviewed the
People of the State of Illinois’ Sexually Violent Person’s petition and the documents incorporated
therein, hereby determines that there is cause to believe that Dale Robert Fahy, [] is eligible for
commitment under subsection (f) of section 35 of the Sexually Violent Persons Commitment Act,
725 ILCS 207.” The court then ordered Fahy to be detained by IDOC and to appear in court on
September 30, 1999, Stateville medical officials were not notified that Fahy was served with the
order, nor is there evidence that any prison official saw Fahy acting differently. Later that day, Fahy
hanged himself. Both Plaintiff and Chawla stated they beliove that it was the detention order that
pushed Fahy to kill himself and in Chawla’s professional judgment, the order of detention

“absolutely devastated [Fahy][to] where he just gave up.” (PIf.’s Resp. Chawla’s Stmt. 44.)

DISCUSSION

Inorder fora party to prevail ona motion for summary judgment, “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] show
that there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). At this stage, we may not weigh the evidence or make
any eredibitity determinations. Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view
all evidence and draw all inferences in favor of the nonmoving party. Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003). Summary judgment is appropriate only when the record as a whole

establishes that no reasonable jury could find for the non-moving party. /d.


respondeat superior or agency claim, Smith and Page cannot be held liable for Fahy’s suicide.

Polk v. Dobson, 454 ULS, 312 (1982).

Il. Defendant Lisenberg

Steven Eisenberg was the head of the psychology department at Stateville, and Plaintiff
contends that Fisenberg is liable for Fahy’s suicide because, as supervisor of the department, he
should have known of Fahy’s condition and, in turn, taken the appropriate measures to prevent
his suicide. Plaintiff asserts that, because Eisenberg had authority to place an inmate in the
infirmary and he failed to do so, he is deliberately indifferent. Eisenberg argues that the
psychology department was not involved in Faby’s treatment, nor did his staff have knowledge of
Fahy’s suicidal tendencies. Thus, Eisenberg contends he is precluded from liability for Fahy’s
suicide.

Plaintiff's arguments are misplaced. As noted, when an inmate first entered Stateville in
1999, if the psychiatrist perceives the inmate to be in need of psychological services, Eisenberg
would be notified through a Referral Form. Eisenberg testified, however, that his department did
not necessarily treat all psychiatric patients, as Referral Forms were not completed with every
patient with mental health issucs. Rather, it was the psychiatrists who determined whether the
psychology department needed to be involved. Plaintiff has not established that Eisenberg was in
a position to treat Fahy or that he reviewed his file while Fahy was alive. Further, there is no
testimony or evidence to indicate that Refertal Form was completed or that Eisenberg was
personally made aware of Fahy’s existence. The only indication of the potential involvement
from the psychology department is Chawla’s notes in the Progress Form. As stated, this form is
kept only in the inmates’ psychiatry folder and not shared with other prison departments. An

10


that it would likely result in a substantial risk to the prisoner’s health or safety. Second, the
individual defendants must be shown to have been deliberately indifferent to that risk. Collins v.
Seeman, 42 \'.3d 757 (7th Cir. Sep. 11, 2006)(citing Matos ex. rel. Matos y. O'Sullivan, 335 F.3d
553, 556 (7th Cir. 2003); Harmer, 511 U.S. at 832.

In the case of a suicide, the first element is automatically met “as [i]t goes without saying
that ‘suicide is a serious harm.’” 7d. (citing Sanville vy. McCaughtry, 266 F.3d 724, 733 (7th Cir.
2001)). A plaintiff may establish the second element by showing the prison officials knew of,
and disregarded, a serious medical need about which they had knowledge. /armer, 511 US at
$55 (stating that there can be no liability under the Eighth Amendment for a prison official unless
the official knows of and disregards an excessive risk to an inmate’s 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.”) Eighth Amendment liability requires
“morc than ordinary lack of duc care for the prisoner’s interests or safety.” Farmer, 511 US at
835. The deliberate indifference standard “imposes a high hurdic for a plaintiff to overcome.”
Collins, 42 F.3d at *12. It is not enough that a prison official “should have” been aware ofa
danger; the official must know, he must have failed to connect the risk that may result in injury,
and he also must have failed to act to avoid the risk. /d. at *8 (referring to Estate af Novack ex
rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th Cir. 2000)); Haley v. Gross, 86 F.3d 630,
640 (7th Cir. 1996); see also Lewis v. Richards, 107 F.3d 549, 553 (7th Cir, 1997) (stating to
incur culpability, would of or should of known is not enough.) Liability cannot attach if “the
defendants simply were not alerted to the likelihood that [the inmate] was a genuine suicide

risk.” Jd; Boncher ex rel. Boncher v, Brown County, 272 F.3d 484, 488 (7th Cir. 2001). Finally,


Additionally, when “undisputed facts give rise to disputed inferences,” summary judgment

is not appropriate. /arley-Davidson Motor Co., Inc. v. Powersports, Inc., 319 F.3d 973, 989 (7th
Cir. 2003) (ruling that “the choice between reasonable inferences from facts is a function of the fact-
finder”); See also Ramirez vy. Nutrasweet Co., 1997 U.S, Dist. Lexis 17111, at *7 (N.D. Ill. Oct. 27,
1997) (“if the evidence presented by the parties is subject to conflicting interpretations, or if
reasonable minds could differ as to its significance, summary judgment must not be granted”) (citing
O'Connor y. Chicago Transit Auth., 985 ¥.2d 1366 (7th Cir. 1993)). Initially, the moving party must
inform the court of the basis for the motion, but it is then the non-moving party’s obligation to
present specific facts showing there is a genuine issuc for trial. FED. R. Crv. P. 56(e). A party must
present more than a scintilla of evidence to defeat summary judgment and may not rest upon “the
mere allegations or denials of the adverse party’s pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” FED. R. C1v. P. 56(e); see also Senner v. Northcentral
Technical College, 113 F.3d 750, 757 (7th Cir. 1997).

Plaintiff asserts that Defendants violated § 1983 because they knew or should have
known of Fahy’s suicidal tendencies and their deliberate indifference caused Fahy’s suicide.
Defendants argue that summary judgement is appropriate because Plaintiff cannot establish a
Scction 1983 deliberate indifference violation. The Lighth Amendment places a duty on prison
officials “to protect prisoners from violence at the hands of other prisoners” and themselves.
Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted). Inmates may
challenge the conditions of their confinement, Wilson v Seiter, 501 U.S. 294, 299-300 (1991), or
the conduct of prison officials. Farmer, 511 U.S, 825. To prove a Section 1983 claim based
upon a violation of the Eighth Amendment, a plaintiff must establish both an objective and a

subjective standard. First, the harm the prisoner was exposed to must be so objectively serious

6


no affirmative evidence to establish that Smith had knowledge of Fahy. For example, there is no

evidence of chart reviews or examination records to show that Smith examined Fahy or that he
was aware that Fahy was placed at Stateville. Further, there are no allegations that Smith ever
monitored Fahy’s well-being. Plaintiff's assertion that Smith should have had knowledge is
simply not enough to establish deliberate indifference. Because Plaintiff has offered nothing to
show us that Smith had knowledge of Fahy’s risk to himself, Smith cannot be considered to have
been deliberately indifferent.

Similarly, Warden Page may not be considered liable for Fahy’s suicide. Plaintiff states
that Page is liable because, as warden, he implemented policy and procedure, and those policies
and procedures were inadequate to address Fahy’s medical needs.

Tt is well established that an individual cannot be held liable in a Section 1983 action
unless he caused, or participated in, the constitutional deprivation. Pepper v Oak, 430 F, 3d 805,
810 (7thh Cir. 2005)(citing Wolf-Lillie v Sonquist, 699 F.2d 864 869 (7th Cir. 1983), Further, in
order to state a claim against a supervisory defendant in his individual capacity, the plaintiff must
allege facts which show that the supervisory defendant knew of, and consented to, the alleged
constitutional deprivation. Chavez v. Ill. State Police, 251 F.3d 612, 652 (7thh Cir. 2001).

In this case, Plaintiff has failed to allege any affirmative link between Fahy’s suicide and
Page. Page was not at all familiar with, nor had he ever met, Fahy. Plaintiff has not alleged that
Page reviewed any reports regarding Fahy’s arrival or his medical condition. There is nothing to
suggest that Page was personally aware that Fahy was even at Stateville, much less that he was
capable of seriously harming himself. Also, there is no support that Page knew of, and consented
to, the alleged constitutional deprivation. Absent that showing, Page cannot be considered to
have been deliberately indifferent. Furthermore, because Section 1983 will not support a

9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHERINE FAHY, individually and
as special administrator for the Estate
of DALE FAHY, deceased,
Plaintiff,
v. No. 01 C 7532
Wayne R. Andersen
JAMES PAGE, warden at Stateville Correctional District Judge

Facility, JOSEPH SMITH, medical director at
Stateville Correctional Facility, STEVEN EISENBERG
director of psychology and or psychiatry at Stateville
Correctional Facility, AMAR CHAWLA, doctor at
Stateville Correctional Facility and JOHN DOE,
correctional officer at Stateville Correctional Facility,

wee eS SS eS Se SS Se

Defendants.

MEMORANDUM OPINION AND ORDER
Catherine Fahy has sued Defendants under 42 U.S.C. § 1983, alleging that Dr. Joseph Smith,

Warden James Page, Steven Eisenberg, and Dr. Amar Chawla, collectively (“ Defendants”), deprived
her late husband, Dale Fahy, of his constitutional rights while he was in custody of Stateville
Correctional Facility (“Stateville”), Plaintiff alleges that, because of Defendants’ inaction, Fahy’s
medical needs were not met and, as a result, Fahy hanged himself. Currently, before the court is
Defendants’ motions for summary judgment pursuant to Federal R.Civ. P. 56. For the reasons stated
below, Defendants Joseph Smith, James Page, and Steven Eiscnberg’s motions for summary

judgment are granted and Defendant Amar Chawla’s motion for summary judgment is denicd.


An assertion of malpractice or that he ought to have known, alone, does not establish the

deliberate indifference necessary to sustain an Eighth Amendment claim. Collignon v. Milwaukee
County, 163 F.3d 982, 990 (7th Cir. 1998); Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996).
However, liability attaches when a defendant ignores actual knowledge of a substantial risk of
serious harm. /d.(citing Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996).

In this case, Chawla used his professional judgment and, based on his examinations and
assessments, he felt there was no substantial risk that Fahy would commit suicide. As stated,
professional judgment should not be scrutinized in an Eighth Amendment context. But, because
Chawla was aware of Fahy’s previous suicidal ideations, we believe that Chawla was on notice
that Fahy may have been a risk to himself, The determination of whether Chawla’s knowledge of
Fahy’s history and medical needs was sufficient to establish deliberate indifference presents a
factual question that should be reserved for the trier of fact. Thus, summary judgment, as to

Chawla, is not appropriate.

CONCLUSION

Construing all relevant facts in a light most favorable to Plaintiff, we conclude that a fair-
minded jury could not find that Smith, Page, or Eisenberg were deliberately indifferent to Fahy’s
suicidal state of mind. Furthermore, because Chawla was aware of Fahy’s history, we belicve
there are enough facts to question whether Chawla had the requisite knowledge to establish
deliberate indifference. Accordingly, Smith, Page and Eisenberg’s motions for summary

judgment are granted and Chawla’s motion for summary judgment is denied.

12


official Referral Form, that alerts the psychology department that therc is a need for further

therapy was not completed. Thus, Eisenberg was not apprised of Fahy’s mental health issues.
Lisenberg admits that Faby saw a social worker for the purpose of discharge planning, but he
maintains that he never knew of, or spoke with, Fahy about his mental health. (Eisenberg
Dep 150-53).

Plaintiff must present evidence that Eisenberg was aware of the prisoncr’s psychological
history. 7d; See also Matos ex. rel. Matos v. O'Sullivan, 335 F.3d 553, 557-58 (7th Cir.
2003)(stating “not every prisoner who shows signs of depression or exhibits strange behavior can
or should be put on suicide watch.) Plaintiff again fails to meet her heavy burden and has failed
to present any supported facts or evidence to show that Eisenberg had actual knowledge of Fahy
or his condition. Simply because the prisoner had consulted with a prison psychiatrist or
psychologist does not, alone, indicate that all Defendants had sufficient knowledge of a risk.
Collins, 42 F.3d at *9. Therefore, deliberate indifference is also not established as to Defendant

Eisenberg.

Il. Defendant Chawla

Finally, Plaintiff claims that Chawla, the examining psychiatrist, is liable because he
knew of Fahy’s history and psychiatric needs and was deliberately indifferent to them. Chawla
argues that summary judgment is appropriate because, after he reviewed Fahy’s file and
examined him on three separate occasions, Chawla found no indication that Fahy would seriously
harm himself. Therefore, Chawla states, he was without the requisite knowledge that Fahy posed

a serious risk to himself.



“prison officials who act reasonably cannot be found liable [or deliberately indifferent] under the

Crucl and Unusual Punishments Clause. Farmer, 511 US at 845.

In the case at bar, Plaintiff states that all Defendants knew or should have known of
Fahy’s suicidal state of mind because they were each in a direct or supervisory position to
evaluate Fahy’s state of mind. Plaintiff asserts that Defendants’ failure to recognize Fahy’s
problems resulted in his suicide. It is not enough, however, that a defendant ought to have had
the knowledge in order to establish an Eighth Amendment violation. Rather, Plaintiff must
present evidence to establish that cach Defendant had actual knowledge of Kahy’s suicidal
tendencies and then consciously chose to disregard them. We examine each defendant, in tum,

to determine whether each had knowledge of Fahy’s condition.

I. Defendants Smith and Page

Plaintiff asserts that Smith, in his position as medical director, should have had
knowledge of all psychiatric patients. Smith contends that, becausc there is no evidence to
support that he was aware of Fahy’s arrival and mental condition, he cannot be liable. We agree.

Fahy was on psychotropic drugs and was secn by psychiatrist, Dr. Chawla, within hours
of his arrival at Stateville. At the initial meeting, Dr. Chawla did not find Fahy to be suicidal and
did not place him in the infirmary because of his condition, Accordingly, there was no need to
inform the medical director of Fahy’s arrival because he did not require any special provisions or
placement within the infirmary. Smith contends that, absent the need for his intervention or
some special risk that Fahy presented, he was not immediately informed of a new inmate’s
arrival at Stateville. Although he would be apprised of all non-urgent medical conditions at his
monthly medical meetings, that mecting did not occur during Fahy’s time at Stateville. There is

8


Under Illinois law, when an inmate on psychotropic medication arrives at a prison, the inmate
must be seen by a psychiatrist within twenty-four hours. Fahy was on Sinequan when he arrived at
Stateville and, accordingly, on the very day of his arrival the treating psychiatrist, Chawla, met wi th
him. Chawla determined that Fahy was not in any imminent danger to himself or others, he
continued Fahy’s prescription, and scheduled him for a follow up appointment. Chawla testified
that he would not have refilled that prescription for a suicidal patient because it is lethal if taken in
overdose, When inmates transfer between facilities, their files and medical records are transferred
with them, but Chawla testified that initially he was not informed that Fahy had a history of suicide
attempts and that the July 1999 police reports were not included in Fahy’s medical file. However,
Chawla admits that, in a closer examination of Fahy’s file, he became aware of Fahy’s previous
suicide-watch status. (Chawla Dep Vol. I at 81, 90.) Upon discovering this, Chawla expedited
Fahy’s next appointment to six days later, as opposed to the usual three or four weeks that normally
passes before a new inmate receives a follow up evaluation. (Chawla Dep. Vol II at 114-115).
Chawla met with Fahy on September 21 and September 25, 1999 and, after both meetings, Chawla
confirmed his initial diagnosis that Fahy may have had an adjustment disorder and was not suicidal.
Chawla stated he did not believe Fahy was suicidal because Fahy did not express ideas of
hopelessness, helplessness, or worthlessness and that “his affect was full or broad in range and mood
was euthymic.” Chawla also affirmed that had he detected suicidal ideations, he would have placed
Fahy on suicide watch at Stateville. (Chawla Dep, Tl, p 74). Dr. Smith, Warden Page, and Mr.
Eisenberg claim they never met Dale Faby, nor were they involved in his treatment at Stateville in

any way. (PI's Addtl. Stmt. 54).



aid and, when taken in higher doses, is an antidepressant. After July 29, 1999, Fahy was not again
placed on suicide watch. On September 15, 1999, Fahy was transferred to Stateville.

As a practice at Stateville in 1999, if prison officials knew that a prisoner had expressed
thoughts of helplessness, hopelessness, worthlessness, or suicide, the prisoner was placed in a special
psychiatric care unit within the prison. This placement was usually initiated by the treating
psychiatrist, The medical director and warden would have been alerted of anew inmates’ psychiatric
issues only if their intervention was needed to assist in placing the inmates, Non-urgent medical and
psychological matters were discussed at the medical director’s monthly staffmeetings. Ifthe treating
psychiatrist believed that an inmate would benefit from seeing a psychologist or social worker, a
mental health referral form (“Referral Form”) was generated and sent to the psychology department.
Once the psychology department received this Referral Form, the inmate would then be assigned to
a psychologist or social worker for continued therapy. The Medical Progress Note Form (‘Progress
Form”) was an internally used document for the psychiatrists to record their impressions of visits
with patients, On the Progress Form, there is a section to indicate whether the psychiatrist believed
the patient should receive further assistance from the psychology department. However, the Progress
From was kept within the inmate's psychiatry file and was generally not forwarded to other
departments like the Referral Form was. Chawla completed a Progress Form during his meetings
with Fahy on September 15, September 21, and Scptember 25, 1999. On the latter two forms,
Chawla indicated that Fahy may benefit from continued therapy through the psychology department.
However, there is no evidence or assertion that Chawla completed a Referral Form or that the

psychology department was made aware of any need for involvement.



BACKGROUND

Dale Fahy was a resident of Will County, Illinois. At the time of Fahy’s death,
Defendants were all working at Stateville. Joseph Smith was the medical director, James Page
was the warden, Steven Eisenberg was the director of psychology, and Amar Chawla was a
psychiatrist.

On December 18, 1989, Fahy pled guilty to two counts of aggravated criminal scxual assault
after being charged with molesting two children, He was sentenced to fiftecn years imprisonment.
Fahy served seven and one half years in prison and, under the terms of his sentence, was to remain
on parole until September 28, 1999. A condition of his parole was that, if he violated any criminal
laws, he would return to prison to serve the remainder of his parole. Fahy was to report toa parole
officer once a week. In June or July 1999, Fahy’s one year old daughter was believed to have been
sexually abused and Fahy, who was suspected of the abuse, was told he could no longer stay at his
home. Fahy failed to report to his parole officer, and he was arrested by Downer’s Grove police on
July 15, 1999 for violation of his parole and for unlawful possession of a firearm by a felon.

When he was taken into custody, he stated he intended to commit suicide. Fahy was taken
to Good Samaritan Hospital and the records there indicate that Fahy was depressed and suicidal. He
was placed on suicide watch by the Downer’s Grove Police Department. On July 16, 1999, Fahy
was transferred to the Will County Sheriff's Department and was again placed on suicide watch, On
July 22, 1999, Fahy was transferred to the State of Illinois’ Department of Corrections in Danville,
Illinois (“Danville”), At Danville, Fahy, once again, was on suicide watch. [Te was placed on 50

milligrams of Sinequan, which is a psychiatric medication that, taken in low doses, serves asa sleep


For the reasons stated above, Defendants Joseph Smith, James Page, and Steven

Eisenberg’s respective motions [63] [73] [73] for summary judgment are granted and Defendant

Amar Chawla’s motion {78] for summary judgment is denied.

It is so ordered. L), o ooh C. WA ee

7 Wayne R. Andersen
United States District Court

Dated: puta Y £007