                            In the

 United States Court of Appeals
               For the Seventh Circuit

No. 08-3719

E LISHA H UNTER, individually and as Personal
Representative of the Estate of Stanley Bell, deceased,

                                             Plaintiff-Appellant,
                                v.


H ETAL A MIN, M.D., et al.,
                                          Defendants-Appellees.


             Appeal from the United States District Court
                  for the Southern District of Illinois.
    No. 3:07-cv-00296-DRH-PMF—David R. Herndon, Chief Judge.


       A RGUED M AY 5, 2009—D ECIDED O CTOBER 1, 2009




 Before R IPPLE and SYKES, Circuit Judges, and L AWRENCE,
District Judge.
  L AWRENCE, District Judge. Elisha Hunter filed this
action on her own behalf and as personal representative




   The Honorable William T. Lawrence, United States District
Judge for the Southern District of Indiana, is sitting by designa-
tion.
2                                                No. 08-3719

of the estate of her deceased brother, Stanley Bell, against
numerous defendants whom she alleged were liable
for Bell’s death in the St. Clair County, Illinois, jail. The
district court granted summary judgment in favor of all of
the defendants on all of Hunter’s claims; Hunter now
appeals portions of that ruling. For the reasons set forth
in this opinion, we affirm in part and reverse and
remand in part the judgment of the district court.


                    I. BACKGROUND
                          A. Facts
  When Stanley Bell arrived at the St. Clair County, Illinois,
jail on April 13, 2005, as a federal pretrial detainee, he
was taking three prescription medications: amitriptyline,
an antidepressant that was prescribed as a sleep aid;
Prozac, an antidepressant; and hydroxyzine, an antihista-
mine that is used to treat anxiety. Because amitriptyline
was barred at the jail pursuant to an Illinois Department
of Corrections policy, Dr. Hetal Amin, a psychiatrist
who was under contract with the jail, was consulted by
jail personnel the day after Bell’s arrival regarding his
prescription for the drug. Dr. Amin prescribed a differ-
ent sleep aid, trazodone, in place of amitriptyline.
  On April 21, 2005, during his regular weekly visit to the
jail, Dr. Amin met with Bell to conduct a psychiatric
examination. Bell, who suffered from bipolar affective
disorder, became highly agitated and refused to talk
with Dr. Amin in the presence of a jail officer, insisting
that he was entitled to a private consultation with the
doctor. It was the jail’s policy—consistent with a state
No. 08-3719                                              3

regulation—that a correctional officer be present during
all inmate medical examinations. In the case of Bell,
Dr. Amin felt it was especially important for his own
safety to have an officer present because Bell’s file indi-
cated that he had attacked an officer at another institu-
tion. A standoff ensued, with Bell growing increasingly
belligerent and refusing to participate in an examination
until the jail officer left the room and Dr. Amin refusing
to conduct the examination without the jail officer
being present.
  Dr. Amin explained to Bell that his medications would
be discontinued unless he was able to conduct an exam-
ination; Bell still refused to submit to an exam in the
presence of a jail officer. Dr. Amin then determined that
Bell was refusing treatment and asked Bell to sign a
“Release of Responsibility” form so indicating. Bell
refused to sign the form, instead wadding it up and
throwing it. Dr. Amin believed that Bell was experiencing
a manic episode, which he attributed to the fact that
Bell was taking an antidepressant (Prozac) which can
cause manic episodes in individuals with bipolar disor-
ders. Therefore, Dr. Amin decided that the best course of
action would be to discontinue Bell’s antidepressant, which
he believed would bring him down from his manic epi-
sode. Dr. Amin also suspected that Bell should be taking
a mood stabilizer, but he could not make that determina-
tion without conducting an examination. Because Bell
refused to consent to an examination, Dr. Amin discontin-
ued all of Bell’s medications and planned to try to
examine him again the following week when he returned
to the jail. Unfortunately, Bell committed suicide on April
23, 2005, leaving behind a note that said, among other
4                                                No. 08-3719

things, that St. Clair County was responsible for his death
because it had taken away his medication.


                  B. Proceedings Below
  Hunter’s complaint asserted a claim pursuant to 42
U.S.C. § 1983 against Dr. Amin, St. Clair County Sheriff
Mearl Justice, and St. Clair County, as well as two counts
of medical malpractice (one alleging loss of chance of
survival and the other alleging wrongful death) against
those defendants plus two unnamed employees of the
jail. The district court dismissed the medical malpractice
claims against Sheriff Justice early in the case; that
ruling has not been appealed. The defendants later
moved for summary judgment on the remaining claims;
those motions were granted in their entirety and the
district court entered judgment in favor of all of the
defendants.1


                     II. DISCUSSION
  Hunter filed a timely appeal in which she addresses two
aspects of the district court’s ruling.2 First, she appeals
the court’s ruling that the County’s policy of requiring a
corrections officer to be present during psychiatric exami-



1
  The district court dismissed sua sponte Hunter’s claims
against the unnamed defendants; that ruling is not appealed.
2
  Hunter does not appeal the district court’s ruling regarding
either her § 1983 claim against Dr. Amin or her medical mal-
practice claims against the County.
No. 08-3719                                               5

nations at the jail did not violate Bell’s constitutional
right to adequate mental health treatment. Second, she
appeals the court’s determination that, as a result of
Bell’s refusal of treatment, Dr. Amin had no duty toward
him and therefore cannot be liable for medical malpractice.
  We review the district court’s grant of summary judg-
ment de novo. Federal Rule of Civil Procedure 56(c) pro-
vides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” In ruling on a motion for summary judg-
ment, the admissible evidence presented by the non-
moving party must be believed and all reasonable infer-
ences must be drawn in the non-movant’s favor. Zerante v.
DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). However, “[a]
party who bears the burden of proof on a particular
issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is
a genuine issue of material fact that requires trial.”
Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th
Cir. 2007).


       A. Section 1983 Claim Against the County
  The district court found that the County’s policy of
requiring a corrections officer to be present during psychi-
atric examinations at the jail did not violate Bell’s con-
stitutional right to adequate mental health treatment and
therefore granted summary judgment in favor of the
6                                               No. 08-3719

County on Hunter’s § 1983 claim. Hunter challenges
that finding.
  “A municipality may be liable for harm to persons
incarcerated under its authority if it maintains a policy
that sanctions the maintenance of prison conditions that
infringe upon the constitutional rights of the prisoners.”
Estate of Novack ex rel. Turbin v. County of Wood, 226
F.3d 525, 530-31 (7th Cir. 2000) (citation and internal
quotation marks omitted). Municipal liability under § 1983
is appropriate only when the policy in question is the
“direct cause” or “moving force” behind a constitutional
violation. Id.
  In this case, while there is no question that the jail had
an express policy that prevented Bell from speaking to
Dr. Amin without a jail officer being present, that policy
did not cause any violation of Bell’s constitutional rights.
Hunter correctly notes that the Illinois Rules of Civil
Procedure provide that physician-patient communica-
tions are, with certain enumerated exceptions, privileged
from disclosure in legal actions. See 735 ILCS 5/8-802. In
addition, the Illinois Mental Health and Developmental
Disabilities Confidentiality Act (“the Act”) provides that
communications between a patient and a psychiatrist
are confidential and may not be disclosed except under
certain circumstances. 740 ILCS 110/3(a). Clearly, how-
ever, neither of these statutes creates or suggests the
existence of a constitutional right of any kind. Both stat-
utes, as well as the federal patient-therapist privilege
recognized in Jaffee v. Redmond, 518 U.S. 1 (1996), to
which Hunter also cites, govern the disclosure of patient-
No. 08-3719                                                   7

therapist communications after the fact, not the circum-
stances under which they are made.
  Indeed, rather than supporting Hunter’s assertion that
Bell had a right to speak with Dr. Amin privately, the
Act recognizes that communications between a therapist
and a patient may take place in the presence of other
persons. See 740 ILCS 110/2 (defining “communication” as
including “any communication made by a recipient or
other person to a therapist or to or in the presence of
other persons during or in connection with providing
mental health or developmental disability services to a
recipient”). The Act then prohibits disclosure of such
communications by anyone, not just by the therapist. 740
ILCS 110/3 (“All records and communications shall be
confidential and shall not be disclosed except as
provided in this Act.”). In other words, under Illinois law
Bell’s communications with Dr. Amin were equally
privileged whether they took place in the presence of a
corrections officer or not.
  As a pretrial detainee, Bell had a constitutional right to
adequate mental health treatment. Hunter points to no
evidence that suggests that Bell could not receive
adequate mental health treatment in the presence of a
corrections officer, and we find that he did not have
the right to an examination by Dr. Amin without the
corrections officer remaining in the room.3 Therefore, the


3
  This is an especially easy conclusion to reach given that the
purpose of the County’s policy is to protect medical providers
                                                  (continued...)
8                                                    No. 08-3719

policy to which Hunter points did not violate Bell’s
constitutional rights and the district court correctly
found that there is no basis for holding the County
liable under § 1983.


    B. Medical Malpractice Claims Against Dr. Amin
  The district court granted summary judgment in favor
of the defendants on Hunter’s medical malpractice
claims. Hunter appeals that ruling only with regard to
Dr. Amin.
  The district court, citing Curtis v. Jaskey, 759 N.E.2d 962,
967 (Ill. App. Ct. 2001), ruled that
    the physician-patient relationship creates a duty for
    the physician to provide competent medical care to
    the patient. A medical malpractice action is predicated
    on such a duty. However, where the patient expressly
    refuses to consent to a medical procedure, no duty


3
   (...continued)
from being attacked by offenders and a “high degree of defer-
ence” is given “to the discretion of prison administration to
adopt policies and practices to maintain the safety and security
of this country’s penitentiaries.” Board v. Farnham, 394 F.3d 469,
477 (7th Cir. 2005) (citations and internal quotation marks
omitted). Indeed, the need for such a policy is supported by
the fact that it is mandated by an Illinois regulation that applies
to all county jails and provides: “When a physician or other
medical personnel attends patients at the facility, a jail officer
shall be present to maintain order, prevent theft of medication,
equipment or supplies, and to assure an orderly process.” 20
Ill. Adm. Code § 701.90(f)(2).
No. 08-3719                                              9

   arises on behalf of the physician to perform the pro-
   cedure. Ergo, the physician cannot be held liable
   for failing to perform the duty.
That is a correct statement of Illinois law and supports
a finding that Dr. Amin cannot be held liable for failing
to conduct an examination of Bell, inasmuch as the
record is quite clear that Bell refused to consent to the
examination offered by Dr. Amin because of the
presence of the jail officer.
   The problem is that Hunter’s malpractice claim against
Dr. Amin is not based solely on the fact that Dr. Amin
did not conduct an examination of Bell. Rather, both
Hunter’s complaint and her brief in opposition to
Dr. Amin’s motion for summary judgment make clear
that she also alleges that Dr. Amin committed malpractice
by discontinuing Bell’s medication. Dr. Amin argues
that he had no choice but to do so because Bell had
refused treatment. The fact is, however, that Bell did not
refuse to continue his medication; rather, he refused to
submit to a psychiatric examination by Dr. Amin. There
is no evidence to support Dr. Amin’s bare assertion that
it was necessary for Bell to be examined by him in order
for his previously-prescribed medication to be con-
tinued; indeed, Dr. Amin offers no explanation of why
that would be the case. The assertion is belied by the fact
that Bell had been at the jail for over a week before
Dr. Amin’s attempt to examine him and had been taking
his medication during that time. The fact that Dr. Amin
attempted to examine Bell on that particular day had
nothing to do with Bell himself; it was simply the day
that Dr. Amin was scheduled to see patients at the jail.
10                                               No. 08-3719

Further, a week earlier Dr. Amin had changed Bell’s
prescribed sleep aid from amitriptyline to trazodone,
demonstrating that he could and did make decisions
regarding Bell’s medications without examining him.
The decision to discontinue Bell’s medication was
another such decision.
  Dr. Amin’s deposition testimony is that he believed
that Bell was experiencing a manic episode that was
caused by the antidepressant he was taking. Therefore, he
decided to discontinue Bell’s antidepressant, which he
believed would bring him down from his manic episode
and allow him to conduct a psychiatric examination on
his next visit. That was a treatment decision to which a
duty attached. Whether the other elements of a medical
malpractice claim—violation of the standard of care and
proximate cause—also are present in this case remains be
seen, as those issues were not raised in the district court.


                      C. Jurisdiction
   There is one final issue that merits a brief discussion. We
clearly have jurisdiction over this appeal, inasmuch as
it includes a 42 U.S.C. § 1983 claim. However, it is not
clear whether jurisdiction over Hunter’s malpractice
claim is dependent on the supplemental jurisdiction
statute, 28 U.S.C. § 1367, or whether diversity jurisdiction
is present. Hunter asserts the latter; however, neither
Hunter’s complaint nor her jurisdictional statement sets
forth the states of citizenship of the individual parties,
but rather indicates only where they reside. “[R]esidence
and citizenship are not synonyms and it is the latter
No. 08-3719                                              11

that matters for purposes of diversity jurisdiction.”
Meyerson v. Harrah’s East Chicago Casino, 299 F.3d 616,
617 (7th Cir. 2002). In addition, Hunter sues both individu-
ally and as the personal representative of Bell’s estate,
and “the federal diversity statute treats ‘the legal rep-
resentative’ of a decedent’s estate (or the estate of an
infant or an incompetent) as a citizen of the same state
as the decedent.” Gustafson v. zumBrunnen, 546 F.3d 398,
400-01 (7th Cir. 2008) (citing 28 U.S.C. § 1332(c)(2)).
No mention of Bell’s state of citizenship at the time of
his death is contained in the record, although Hunter’s
counsel suggested at oral argument that he was a citizen
of Missouri. Because only state law claims now remain
in this case, the district court should determine on
remand whether the requirements for diversity juris-
diction are satisfied. If they are not, the court should
then determine whether it is appropriate to continue
to exercise supplemental jurisdiction over Hunter’s
malpractice claims. See Leister v. Dovetail, Inc., 546 F.3d
875, 882 (7th Cir. 2008) (“When the federal claim in a
case drops out before trial, the presumption is that the
district judge will relinquish jurisdiction over any sup-
plemental claim to the state courts.”).


                       Conclusion
  For the reasons set forth above, the judgment of the
district court is affirmed with regard to Hunter’s § 1983
claim against the County. With regard to Hunter’s medical
malpractice claims against Dr. Amin, the grant of sum-
12                                              No. 08-3719

mary judgment is reversed and remanded for further
proceedings consistent with this opinion.

                      A FFIRMED in part and R EVERSED and
                                       R EMANDED in part.




  S YKES, Circuit Judge, dissenting. I agree with my col-
leagues that summary judgment for St. Clair County on
Hunter’s § 1983 claim was appropriate. I disagree, how-
ever, with the majority’s decision to reinstate
Hunter’s medical-malpractice claim against Dr. Amin.
The district court properly entered summary judgment
against Hunter on that claim as well, and I would
affirm the judgment in its entirety.
   Under Illinois law “[t]he duty of a physician to render
competent medical care arises as a consequence of the
physician-patient relationship.” Curtis v. Jaskey, 759 N.E.2d
962, 968 (Ill. App. Ct. 2001). A physician must have the
patient’s consent before rendering treatment. “Absent
consent, whether express or implied, a physician has no
right to render medical treatment to a patient.” Id. The
Illinois Supreme Court has emphasized that “a patient
normally must consent to medical treatment of any kind.”
Keiner v. Cmty. Convalescent Ctr. (In re Estate of Longeway),
549 N.E.2d 292, 297 (Ill. 1989) (emphasis added). And
“because a physician must obtain consent from a
patient prior to initiating medical treatment, . . . the
No. 08-3719                                              13

patient has a common law right to withhold consent and
thus refuse treatment.” Id. This “incorporates all types
of medical treatment, including life-saving or life-sustain-
ing procedures.” Id. Accordingly, where a patient refuses
consent to treatment, Illinois holds that no duty to
render competent treatment arises and no action for
medical malpractice may be maintained. See Curtis, 759
N.E.2d at 968 (“Where a patient refuses to consent to
a medical procedure, no duty arises on behalf of a physi-
cian to perform that procedure such that the physician
can be held liable for failing to perform it.”).
  My colleagues conclude that although these prin-
ciples preclude liability predicated on Dr. Amin’s failed
attempt to conduct a psychiatric examination of Bell,
the doctor nonetheless may be held liable for discon-
tinuing Bell’s medication. I disagree. As the foregoing
authorities make clear, a physician’s right to render
medical treatment—and therefore his duty to render
competent treatment—arises when a physician-patient
relationship is established and depends upon the patient’s
consent. Prescribing medication is a form of medical
treatment. Here, a physician-patient relationship was not
established and therefore a right to treat did not arise
because Bell refused to consent to the psychiatric exam-
ination that was a necessary predicate to Dr. Amin’s
treatment decisions—including the decision to prescribe
medication for the treatment of Bell’s then-extant psychiat-
ric condition. Because Bell refused to consent to the
examination, Dr. Amin had no right to render treat-
ment—no right, that is, to prescribe medication. As such,
there is no duty and therefore no basis for a medical-
malpractice action.
14                                             No. 08-3719

  To be more specific, the undisputed facts are as follows:
Bell was booked into the St. Clair County Jail a week
before Dr. Amin’s failed attempt to examine him. When
he arrived, he was taking certain prescriptions for
bipolar disorder. One was Prozac, an antidepressant;
another was Elavil (amitriptyline), sometimes prescribed
as a sleep aid. Elavil was classified as a “concern medica-
tion” under Illinois Department of Corrections policy, and
the department did not permit its use in Illinois correc-
tional facilities. Accordingly, Dr. Amin substituted an
alternative sleep aid—trazodone—and scheduled Bell
for an examination the following week during his
regular visit to the jail.
  As my colleagues explain, at that appointment Bell
became agitated at the presence of a correctional officer.
He was told that the officer was required to remain in
the room during the examination, and at this his
agitation increased. Dr. Amin made a tentative judgment
based on Bell’s behavior that he was suffering a manic
episode and needed a different mix of psychotropic
medications. The doctor testified in his deposition that
Prozac can cause mania in patients with bipolar disorder
and he thought Bell should stop taking it; he also
suspected Bell needed a mood stabilizer. But the doctor
needed to conduct a full psychiatric examination before
prescribing medications.
  Dr. Amin tried to explain to Bell that he needed to
conduct the examination in order to prescribe medication
and that Bell’s medication would be discontinued if he
refused to be examined. This only angered Bell more
No. 08-3719                                             15

and he ultimately refused to be examined. He was given
a “Release of Responsibility” form, which he crumpled
up and threw away. Dr. Amin planned to attempt
another exam the following week. But based on Bell’s
refusal to consent to the psychiatric examination, his
prior medications were discontinued and no new ones
were prescribed. Bell committed suicide before his next
appointment with Dr. Amin.
  My colleagues have concluded that the discontinuation
of Bell’s prior medications is separately actionable even
though the failed psychiatric examination is not.
They base this conclusion on a subsidiary one: that the
psychiatric examination was not necessary for Dr. Amin
to continue to prescribe the medications Bell was taking
when he entered the jail. Maj. op. at 9. There is no
support for this in the record. Drug-prescription decisions
are medical decisions, and Hunter presented no expert
medical evidence to contradict Dr. Amin’s testimony
that he needed a current psychiatric examination
before prescribing medications.
  My colleagues point to the fact that when Bell first
arrived at the jail, Dr. Amin substituted trazodone for
amitriptyline, Bell’s previously prescribed sleep aid, and
that he made this decision without examining Bell.
This does not establish that the psychiatric exam was
unnecessary to Dr. Amin’s prescription decisions at the
time he first attempted to examine Bell. It is undisputed
that Dr. Amin made the drug substitution upon Bell’s
admission to the jail because state regulations pro-
hibited the use of amitriptyline. That Bell was continued
16                                             No. 08-3719

on this substitute sleep aid and his other medications
during his first week in the jail—before he saw Dr. Amin—
does not establish that a psychiatric examination was
unnecessary to the treatment decisions Dr. Amin needed
to make when he first saw Bell a week later. At the time
of his admission into the jail, Bell had not yet seen
Dr. Amin or refused the psychiatric examination, and
his continued receipt of his prior prescription medica-
tions during this interim period falls within Illinois’
doctrine of implied consent. Curtis, 759 N.E.2d at 967-68
(consent is implied based on an existing emergency or
other circumstances under which the patient’s actual
consent cannot be obtained).
  But when actual consent to treat has been sought and
refused, this doctrine falls away and the doctor has no
right to treat. Id. at 968. Once Bell refused to consent to
the psychiatric examination, Dr. Amin lacked the right
to render treatment. This meant he had no right to pre-
scribe medications—either those Bell had been taking or
new medications. Because of Bell’s refusal, no physician-
patient relationship was established and no right or duty
to treat arose. Therefore, there is no basis for medical-
malpractice liability. The district court properly entered
summary judgment for Dr. Amin. Accordingly, I must
respectfully dissent.




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