                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3418

C HERYL M ILLER,
                                                  Plaintiff-Appellant,
                                  v.

JOLENE H ARBAUGH, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 10 C 5381—Suzanne B. Conlon, Judge.



   A RGUED S EPTEMBER 19, 2012—D ECIDED O CTOBER 19, 2012




 Before B AUER, K ANNE, and W OOD , Circuit Judges.
   W OOD , Circuit Judge. The State of Illinois, through
its Department of Juvenile Justice, runs a number of
youth detention facilities, to which minors convicted in
juvenile delinquency proceedings may be committed if a
less restrictive option is not appropriate. See Juvenile
Court Act of 1987, 705 ILCS 405/5-750(1). This case
involves the sad fate of one such minor, Jamal Miller,
who was incarcerated at Illinois Youth Center (IYC)
2                                               No. 11-3418

St. Charles, and briefly at IYC Kewanee, at the age of 16.
Jamal had a history of mental illness and was known to
have attempted suicide at least three times. Sometime in
the early morning of September 1, 2009, Jamal hanged
himself from the top bunk in his room. He was not dis-
covered in time to save him. The present lawsuit, brought
by his mother on her own behalf and as his representa-
tive, accuses a number of state officials of deliberate
indifference to Jamal’s serious mental illness, in violation
of his Fourteenth Amendment rights (analogous for this
purpose to Eighth Amendment rights). The district court
granted summary judgment for the defendants, and
we affirm.


                             I
  When Jamal arrived at IYC St. Charles in November
2008, the Reception and Classification Unit, which deter-
mines where new residents will be housed and what
services they require, referred him for assessment by a
mental health professional. Dr. Mallikarjuna Kanneganti,
a private psychiatrist, conducted Jamal’s assessment.
His conclusions were grim: he noted in his report that
Jamal had a history of Attention Deficit Hyperactivity
Disorder, major depression, bipolar disorder, psychosis,
behavior disorders, and anger and drug abuse coun-
seling. Over the years, Jamal had taken numerous psycho-
tropic medications. His behavioral history included
delinquency, gang affiliations, anger, aggression, setting
of fires, cruelty to animals, putting a gun to a cousin’s
head, threatening to kill teachers, learning disabilities,
No. 11-3418                                             3

alcohol abuse, and cannabis use. This array of problems
had resulted in five hospitalizations, most recently
about five months earlier, when Jamal had tried to
commit suicide by cutting himself with a machete.
Dr. Kanneganti also recorded an additional suicide
attempt in January 2007, when Jamal had tried to
suffocate himself with a pillow, and another when Jamal
had tried to hang himself. For his part, Jamal denied that
he had manic or depressive symptoms, that he was de-
pressed, or that he had experienced suicidal thoughts
since his June 2008 attempt. Dr. Kanneganti decided
to prescribe Prozac and lithium for him.
  Initially, Jamal was assigned to IYC St. Charles’s
Special Treatment Unit, which is reserved for residents
with chronic mental health disorders involving mild
to moderate symptoms and “manageable” suicide risk.
After a short time there, the classification personnel
recommended that Jamal be transferred to the substance
abuse program in the Special Treatment Unit at IYC
Kewanee. The latter unit was reserved for residents
with acute mental health disorders and moderate to
high suicide risk, though it was also the only unit with
a program that combined mental health treatment and
substance abuse treatment. Dr. Jennifer Jaworski (one
of the defendants in our case), the Behavioral Health
Services Administrator for the Department as a whole,
approved the transfer, and so Jamal was moved to
IYC Kewanee in February 2009.
  In April 2009, the Kewanee staff placed Jamal on
suicide watch, in response to his assault of another
4                                              No. 11-3418

resident and his statement that he was “going to make it
worse for [him]self.” Five days later, the watch was
ended, after he denied any current suicidal or homicidal
thoughts. In May 2009, Dr. Victor Kersey, a clinical psy-
chologist normally assigned to IYC Kewanee and another
defendant, returned from a one-year stint in Iraq. Only
then did he become acquainted with Jamal, largely
through Jamal’s disciplinary infractions. He also learned
through his staff that Jamal was not complying with
the rules of the Mental Illness Substance Abuse
(MISA) program at Kewanee. This noncompliance
resulted in Jamal’s dismissal from the program for
30 days, while he stayed in the Special Treatment Unit
and was subject to a “behavior contract.” Jamal satis-
fied the terms of this contract and was re-admitted to
the MISA program. But his restoration was brief: he
misbehaved again, and after eight days he was kicked
out. All 24 members of Kewanee’s treatment staff, led
by Dr. Kersey, then met to decide what to do with
Jamal. They concluded that his biggest problems were
anger and aggression, and that he was otherwise stable.
Since he was not benefitting from the MISA program
at Kewanee, they recommended that he be transferred
back to IYC St. Charles. Dr. Kersey prepared a memoran-
dum explaining this decision; he shared the memo
with defendant Dr. Jolene Harbaugh, the head of mental
health services at St. Charles, and Dr. Jaworski. Persuaded
that Jamal should be returned to St. Charles, Dr. Jaworski
gave her approval, and the transfer took place on
August 5, 2009.
  Back at St. Charles, Jamal was screened again the day
after his arrival for risk of suicide and was found to be
No. 11-3418                                             5

stable. Three days later, Dr. Kanneganti evaluated him
and also found him not to be suicidal. During that
meeting, Jamal asked if he could be taken off the medica-
tions he had been taking for his mental disorders, and
Dr. Kanneganti agreed to do so. The doctor later ex-
plained that in his view, Jamal did not meet the criteria
for forced medication because he was not gravely
disabled nor did he pose a likelihood of harm to himself
or others. On August 9, Jamal was transferred to a
different housing unit and placed alone in a room with
a metal-frame bunk bed. There was no mattress on the
top bunk. At that time, single-bed rooms were available
elsewhere in the St. Charles facility.
   On August 12, 18, 25, and 28, Jamal saw a psychologist
at St. Charles for mental health treatment. In a report
written on August 29 and signed on August 31, the psy-
chologist reported that Jamal seemed oriented, alert,
confident, and stable, and that he showed no signs of
suicidal ideation, hallucinations, or other severe mental
illness. Unfortunately, his assessment proved to be wrong.
  An incident that took place during the afternoon of
August 31 seems to have triggered the events that led
to Jamal’s suicide. Around 4:30 p.m., Juvenile Justice
Specialist (JJS) Natalie Finley asked the residents to
line up after dinner to go to the gym. Jamal became
disruptive and started to argue with her. She told him
to quiet down and get in line; JJS Sean Kincade came
over to help. Later that evening, Jamal apologized to
Finley, and she responded that tomorrow is a new day.
At 10:00 p.m., JJS Marcia Kozel started her shift. She was
6                                             No. 11-3418

supposed to conduct safety checks of the rooms every
15 minutes; this involved shining her flashlight into the
room and recording her checks. When she started her
check at 3:09 a.m., the residents were all asleep and
the lights were out. She checked A wing first, and then
B wing, where Jamal’s room was located. When she
got there, she looked in the window and thought that
she saw him in a squatting position. She turned away,
continued her rounds, and then passed his room on the
way back. At that point she realized that something
was wrong: Jamal’s face was against the top of the bunk
and there was something around his neck. Kozel immedi-
ately called an emergency code over her radio and ran
for help. She and another specialist entered his room,
found him hanging from the top bunk with a sheet, and cut
him down. They started CPR; a nurse came to help; and
eventually paramedics arrived. It was too late, however.
Before his death, Jamal had posted notes on the walls
and door of his cell. One of them was directed to
Finley. It said that she “pushed [him] over the edge.” He
also put a note reading “RIP Jamal Damerco Miller” on
his door, but Kozel testified that she did not see it.


                            II
  On August 26, 2010, Miller filed the present lawsuit
under 42 U.S.C. § 1983 and state law against the various
Departmental and institutional actors who allegedly
had some part to play in Jamal’s death. Although she
initially named others, in this appeal she has whittled
the list down to five people: Kurt Friedenauer, the acting
No. 11-3418                                                 7

director of the Department at the time of Jamal’s death;
Bobby Moore, the superintendent of IYC St. Charles
at the relevant time; Dr. Jaworski, the Behavioral
Health Services Administrator for the Department;
Dr. Harbaugh, the Treatment Administrator at IYC
St. Charles, and thus the person responsible for
overseeing all health services there; and Dr. Kersey,
the clinical psychologist at IYC Kewanee who recom-
mended Jamal’s transfer back to IYC St. Charles.
  The district court granted the defendants’ motion for
summary judgment in an order dated October 19, 2011, in
which it dismissed the federal claims with prejudice
and opted not to exercise supplemental jurisdiction
over the state claims and thus dismissed them with-
out prejudice. Because Miller’s theory with respect to
Friedenauer, Moore, Jaworski, and Harbaugh focused on
their adoption of policies—notably the use of bunk beds
for potentially suicidal residents—the district court
referred to them as the “supervisory defendants.” Because
there is no vicarious liability under Section 1983, these
defendants could be liable only if they personally did
something that violated Jamal’s rights. The court recog-
nized that an official may be liable if he or she is responsi-
ble for a systematic condition that violates the Constitu-
tion, or for a failure to intervene. Nevertheless, the
court concluded, even assuming that the use of the
bunk beds violated the Constitution and the necessary
personal involvement was shown, the four supervisory
defendants were entitled to qualified immunity. In the
district court’s opinion, no clearly established law indi-
cated that the suicide prevention measures in place at
8                                               No. 11-3418

IYC St. Charles were inadequate for purposes of the
Fourteenth and Eighth Amendments. As for Dr. Kersey,
the court found no evidence in the record that would
permit a trier of fact to find that he was deliberately
indifferent when he decided to transfer Jamal from
IYC Kewanee back to IYC St. Charles. Since that was
Miller’s only theory with respect to him, the court con-
cluded that he was entitled to summary judgment.


                             III
                             A
  In her appeal from the judgments in favor of the super-
visory defendants, Miller asserts that the district court
erred in several respects: first, in its holding that their
use of the bunk beds was not deliberately indifferent
to Jamal’s rights under the Eighth and Fourteenth Amend-
ments; second, in its holding that Miller could not
prevail unless she could prove that Jamal faced a
present or imminent risk of suicide; and third, in its
finding that the supervisory defendants were entitled to
qualified immunity. (For convenience, we refer only to
the Eighth Amendment in the discussion that follows,
even though we recognize that juvenile facilities may
not be administering the kind of “punishment” that is
given to adult prisoners. The standards under the Four-
teenth and Eighth Amendments do not differ for our
purposes.) All of these points overlap, however. One
must show that the plaintiff has alleged a violation of a
constitutional right to overcome an assertion of qualified
immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
No. 11-3418                                              9

The question whether the duty to take more active anti-
suicide measures arises only when the risk is imminent
informs the question whether these defendants have
violated Jamal’s constitutional rights. The remainder of
the qualified immunity defense—whether the rights in
question were clearly established—also depends on
what rights are at stake. We thus consider all three
points together.
  Miller’s primary argument is that the kind of bunk
bed that was in use at IYC St. Charles was, in effect, a
death trap for any resident inclined to suicide. And, she
continues, St. Charles housed a great number of such
people. From 2000 up until the date of Jamal’s death, there
were 2,929 total suicide attempts at that facility alone.
System-wide, of that number there were 625 “moderately
serious” attempts, and 169 “serious” attempts. Six resi-
dents actually did commit suicide, and three of those
(including one at St. Charles) were accomplished by
hanging from the same type of metal-frame bunk bed
that Jamal used. Within a day or so of Jamal’s death, the
Special Treatment Unit at St. Charles was re-designated
as single-bunk only. Shortly thereafter, Superintendent
Moore made an emergency funding request to replace
all of the bunk beds at St. Charles with single beds,
and that request was granted and eventually implemented.
  Director Friedenauer acknowledged in his deposition
testimony that the Department knew that the metal-
frame bunk beds might be used for suicide. He also knew
that there had been other attempts before Jamal’s death,
including some involving the bunk beds. The beds had
10                                              No. 11-3418

not been replaced, however, because despite his efforts,
he could not obtain funding from the Illinois legislature
to do so. Superintendent Moore was also aware that the
bunk beds could be used for suicides. He, too, mentioned
the lack of funding during the time before Jamal’s
death. Immediately afterwards, however, Moore desig-
nated the Special Treatment Unit at St. Charles as single-
bed only, and he ordered new beds.
   Miller collected evidence showing that it would have
been relatively easy to dismantle the metal bunk beds
so as to eliminate the top bunk. They were modular
and, she asserts, could have been taken apart and con-
verted to single beds. (Other testimony indicated that
the task involved more than a simple screwdriver:
Moore noted that the beds were secured to the wall
and thus removal required some effort.) Miller pointed
to a report by the John Howard Association (which ad-
vertises itself as a group that “works to achieve a fair,
humane and cost-effective criminal justice system by
promoting adult and juvenile prison reform” on its
website, www.thejha.org). The Association reported that
the bunk beds were an obvious danger. (Interestingly,
in a report of a monitoring visit to St. Charles issued
May 17, 2011, the Association complained that the
facility as of that time had still not eliminated the bunk
beds. Only in the report of its visit on April 3, 2012, did
it find that all of the problematic beds had been replaced.)
  In their brief, the supervisory defendants point out
that neither the Department nor IYC St. Charles was
indifferent to the risk of suicide. Superintendent Moore
No. 11-3418                                                 11

recommended to Director Friedenauer that the Master
Plan for the Department (which had split off from the
Illinois Department of Corrections only in 2005) should
include replacing the living units at St. Charles. He identi-
fied a number of features of the rooms that could be used
for self-harm, including not only the bunk beds, but
also the sinks, toilets, and vents. Friedenauer followed
through with a recommendation in the 2007 Master
Plan for new single-bed living units, but the legislature
did not respond. Indeed, in 2009 the entire repair and
maintenance budget for the Department was only $150,000.
  Director Friedenauer took other measures, however,
while he was pursuing capital improvements. He put
in place protocols for mental health assessments, he
put suicide prevention on the agenda at almost every
quarterly meeting, he required suicide prevention
meetings at each facility, he developed a training video
for this purpose, and he ordered every staff member to
carry a “Knife for Life” that could be used in emergencies
such as Jamal’s. In addition, the staff at St. Charles con-
ducted cell checks every 15 minutes throughout the
day and night, and the record demonstrates that
Jamal’s cell was properly checked.
  In order to defeat the defendants’ summary judgment
motion on her Eighth Amendment claim, Miller had to
present evidence that would permit a finding that the
defendants were subjectively aware of the risks posed
by the bunk beds to persons with a history comparable
to Jamal’s and that they recklessly failed to take appro-
priate steps to alleviate that risk. See Farmer v. Brennan, 511
12                                              No. 11-3418

U.S. 825, 843 (1994); Frake v. City of Chicago, 210 F.3d 779,
781-82 (7th Cir. 2000). With respect to the latter point,
we have held that defendants cannot be thought to be
reckless if the remedial step was not within their power.
See Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997)
(“officials do not act with ‘deliberate indifference’ if
they are helpless to correct the protested conditions”). On
the other hand, the Supreme Court has intimated that
an argument that rests solely on fiscal constraints cannot
negate a finding that “cruel and unusual punishment”
is being imposed. Wilson v. Seiter, 501 U.S. 294, 301-02
(1991).
  We are willing to assume, for present purposes, that
Miller presented enough evidence to support a finding
that the supervisory defendants were subjectively
aware of the suicide risks posed by the bunk beds and
that alternate measures such as dismantling them or
assigning residents to single-bed rooms were feasible.
We therefore have no need to decide whether the
evidence of the changes at St. Charles in the wake of
Jamal’s death was excludable as a subsequent remedial
measure for purposes of Federal Rule of Evidence 407,
or if it instead was admissible to show feasibility of
precautionary measures, as permitted by the rule. But
even if the evidence, viewed favorably to Miller, would
support a finding of a constitutional violation, we must
still consider the second part of the qualified immunity
inquiry—the question whether any duty the defendants
had was clearly established.
  As the Supreme Court reaffirmed most recently in
Pearson v. Callahan, 555 U.S. 223 (2009), a plaintiff seeking
No. 11-3418                                                  13

to defeat a defense of qualified immunity must establish
two things: first, that she has alleged a deprivation of a
constitutional right; and second, that the right in
question was “clearly established.” Id. at 232. Although
Saucier v. Katz, 533 U.S. 194 (2001), had dictated that these
questions always had to be considered in the order in
which we have stated them, the Court retreated from
that position in Pearson and returned to a regime
under which either issue could be taken up first. 555
U.S. at 236. We are therefore free to decide first whether
the right that Miller has alleged was clearly established.
In undertaking this analysis, it is critical to find the
correct level of specificity. It is not enough, for instance, to
say that it is clearly established that those operating
detention facilities must not engage in cruel or unusual
punishment. The way that the right is translated into
the particular setting makes a difference. The plaintiff
must show that the contours of the right are “sufficiently
clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987).
  That is why it is not enough for Miller to show that
residents of juvenile detention facilities have a right not
to be housed in unsafe conditions. But what does the
law show about the duty of state officials to adopt mea-
sures designed to thwart the actions of a suicidal resi-
dent? We have held that prison officials violate the
Eighth Amendment if they are “cognizant of the sig-
nificant likelihood that an inmate may imminently seek
to take his own life” and then “fail to take reasonable
steps to prevent the inmate from performing this act.”
14                                              No. 11-3418

Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001)
(internal quotation marks omitted). In Cavalieri v.
Shepard, 321 F.3d 616 (7th Cir. 2003), we found that the
facts were disputed on the question whether a jail
official “was aware that [plaintiff’s son] was on the
verge of committing suicide.” Id. at 620. Prison officials
have also been found potentially liable where they failed
to take reasonable steps to remedy conditions such as
extreme cold or heat that posed a danger to all prisoners.
See Dixon, 114 F.3d at 642.
   In asking us to hold that state officials violate the Con-
stitution when they fail to prevent the suicides of
inmates who are not actively or “imminently” suicidal,
however, Miller is asking us to extend the duties of the
facility’s officials in an important way. She also sug-
gests without support that the law has clearly estab-
lished which steps to avert suicides must be taken, on
pain of personal liability if they are not. We take these
points in turn.
  It is one thing to impose a duty on detention facility
personnel or prison guards to intervene actively when
they see a resident or inmate who is, as we put it in
Cavalieri, on the verge of suicide. If the state officers can
observe or are told that their detainee is indeed so dis-
turbed that his next step is likely to be suicide, and yet
they do nothing, it is fair to say that they have gone
beyond mere negligence and entered the territory of the
deliberately indifferent. This is why Cavalieri and Sanville
spoke of “imminence” or “the verge” of action. If Miller
believes that this has not been the law of this circuit, she
No. 11-3418                                             15

is mistaken. If she is arguing instead that we should
change that standard, she has essentially conceded that
the rule she proposes is not clearly established. Mental
illness, including suicidal ideation, comes in many
degrees of severity. For those who have had only a
fleeting notion that suicide might be the answer, psychi-
atric care is normally the responsible option to take,
rather than putting that person in a padded cell under 24-
hour surveillance. Jamal’s case fell somewhere between
these two extremes. He had a lengthy history of mental
disturbances and disorders, wholly apart from the
question of suicide, and he had tried to take his own
life three times. At both times he entered IYC St. Charles,
he appeared to the professionals there who evaluated
him to be on a more solid footing. The law as it stood at
the time Jamal was being assessed by the St. Charles
personnel did not clearly require more from them.
  It is possible, however, that Miller admits that much,
since her primary argument is that the true violation
here was St. Charles’s failure to house Jamal (and other
juveniles with histories of mental illness and suicide
attempts) in rooms without dangerous bunk beds. We
accept, as we must, the fact that the supervisory defen-
dants knew that the metal bunk beds had been, and could
be again, used by a resident for self-destruction. But so
could other items in the room. In this respect, the facts
of our case strongly resemble those in Frake. There, the
City of Chicago used jail cells that had horizontal bars.
Using his jacket, the decedent hanged himself from the
bar in his cell. 210 F.3d at 781. The decedent’s father
sued on the theory that the Chicago jails had a history
16                                              No. 11-3418

of inmates hanging themselves on those bars, and thus
that the City’s failure to redesign the cells represented
deliberate indifference. Id. at 782. We rejected that
theory, both because there was no allegation that
the decedent was actively suicidal at the time he was
admitted to the jail, and because (even recognizing that
no one wants even one suicide) the number of such
events was too small to give rise to constitutional liabil-
ity. Id. With respect to the latter point, we em-
phasized the fact that the City had taken other measures
to prevent suicides in the jail, including screening for
suicidal ideation, confiscation of items that could be
used for self-harm, and checking cells every 15 minutes. Id.
  We understand that there are some differences be-
tween this case and Frake. Proportionally, the number of
suicides is higher here; the residents here are juveniles
whose mental health histories are well known; and there
is evidence that single beds were available. Had we
found deliberate indifference in Frake, this case would
have seemed to be a stronger application of the same
rule. But we did not. Furthermore, nothing in Frake indi-
cated under what circumstances a small number of sui-
cides might lead to liability. And cell design was not the
only variable in either case. In both Frake and in our
case, the detention authorities took other precautions
against the possibility that inmates or residents who
did not appear to be imminently suicidal might unex-
pectedly make an attempt. Any of the supervisory de-
fendants who read Frake would have thought that he or
she was acting within constitutional boundaries.
No. 11-3418                                               17

  Even if IYC St. Charles’s decision to use the metal
bunk beds in rooms occupied by mentally disturbed,
but not imminently suicidal, residents amounted to
deliberate indifference, and thus amounted to a viola-
tion of Jamal’s constitutional rights, the law in this area
was not clearly established enough to defeat the super-
visory defendants’ claim of qualified immunity.


                             B
  All that remains is the appeal against Dr. Kersey,
the psychologist at IYC Kewanee who authorized Jamal’s
transfer back to IYC St. Charles. Miller believes that this
was a deliberately indifferent act on Dr. Kersey’s part,
because he knew that St. Charles used the dangerous
bunk beds and he knew that Jamal was a suicide risk.
But Dr. Kersey’s involvement with Jamal was minimal,
and no rational trier of fact could find evidence of deliber-
ate indifference in it. Dr. Kersey had nothing to do
with Jamal at Kewanee until May 2009, when he
returned from his tour of duty in Iraq. At that point, he
became aware of Jamal’s unsuccessful participation in
the drug abuse program. After a meeting with the entire
24-person treatment staff of Kewanee, the collective
decision was that Jamal should be returned to St.
Charles. Perhaps this group was mistaken in its belief
that Jamal would do better in the less structured atmo-
sphere of St. Charles, but that does not demonstrate
deliberate indifference. Nor does Dr. Kersey’s memo
to Drs. Harbaugh and Jaworski explaining why the
staff had come to this conclusion demonstrate anything
18                                             No. 11-3418

close to deliberate indifference. Even assuming, as we
must, that Dr. Kersey knew that St. Charles was still
using the metal bunk beds, he had no idea which
room Jamal would be given or that St. Charles’s other
suicide prevention measures would prove to be inade-
quate.


                            IV
  Jamal Miller was a very troubled young man, and it
is likely that everyone who cared for him regrets that
they were not able to forestall his suicide. But the fact
that more measures, or different measures, might have
been undertaken, and that those measures might have
been successful (though even this is not certain) is not
enough to support liability under the Constitution
against any of the defendants now before us. The
district court chose to dismiss Miller’s state claims with-
out prejudice, and we have no comment on how any
of them should be resolved. We therefore A FFIRM
the judgment of the district court.




                          10-19-12
