                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-1590
MARIA E. MATOS, on behalf of all wrongful death
beneficiaries of LUIS R. MATOS, JR., Deceased,
and as Special Administrator of the ESTATE OF
LUIS R. MATOS, JR.; CARLITO MAXWELL, a minor,
son of the Decedent; ANASTHASIA SANCHEZ,
daughter of the Decedent; CHRISTINA DIAZ,
daughter of the Decedent; and BENJAMIN DIAZ,
son of the Decedent,
                                      Plaintiffs-Appellants,
                            v.

WILLIAM O’SULLIVAN; AMY LIPCAMAN;
ROSE J. COX, M.A.; CHARLES R. BARTELS, M.S.;
and JUDITH A. TERRELL, M.D.,
                                  Defendants-Appellees.
                     ____________
          Appeal from the United States District Court
              for the Central District of Illinois.
            No. 99-3190—Jeanne E. Scott, Judge.
                        ____________
       ARGUED MAY 16, 2003—DECIDED JULY 2, 2003
                    ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
ROVNER, Circuit Judges.
 FLAUM, Chief Judge. In August 1998 Luis Matos com-
mitted suicide by hanging himself in his cell at the West-
2                                                No. 02-1590

ern Illinois Correctional Facility. Maria Matos, the de-
ceased’s sister and guardian of his estate, and Luis Matos’s
children (collectively “the Estate”) brought this action under
42 U.S.C. § 1983 and Illinois state law, claiming that pris-
on warden William O’Sullivan, correctional officer and
crisis team member Amy Lipcaman, prison intake psy-
chologist Charles Bartels, prison treating psychologist
Dr. Rose Cox, and prison treating physician Dr. Judith
Terrell, each violated Luis Matos’s constitutional rights
by acting with deliberate indifference to his risk of suicide.
The Estate now appeals from the district court’s grant
of summary judgment in favor of all defendants on the fed-
eral § 1983 claim and the court’s decision not to exercise
jurisdiction over the Illinois state law claims. We affirm.


                     I. BACKGROUND
  Luis Matos first entered the Illinois prison system on
August 9, 1996, at the Joliet Correctional Center (“Joliet”).
At that time he participated in a routine mental health
screening interview with Illinois Department of Correc-
tions employee Charles Bartels, who holds a masters
degree in clinical psychology and counseling. Bartels’s
report of his interview with Matos stated:
    This 35 year old was seen on 8/9/96 for screening
    without benefit of any corroborative data except
    which he was willing and able to reveal. He was alert.
    He was oriented in three spheres. Mood was appropri-
    ate. Affect was within normal limits. A history of
    substance abuse was admitted. Current substance
    abuse was admitted. . . . Present suicidal ideation is
    denied. Present evidence of major depression was not
    noted. Hallucinations were denied. A history of psy-
    chiatric treatment was denied. Anticipated difficulties
    of adjustment were denied. Present family contact
No. 02-1590                                              3

   was reported. Need for present mental health ser-
   vices was denied.
Also on that day, Matos provided information about his
mental health to a different prison employee who re-
corded it on a “Reception and Periodic Medical History”
form. This form stated that Matos had a history of psycho-
logical treatment, had suffered from manic depression-
schizophrenia, had attempted suicide in 1995 by jumping
in front of a train, and was in urgent need of a mental
health referral. There is no other evidence in the record
indicating that Matos suffered from any psychiatric or
psychological problems during his initial 10-month term
of imprisonment in Joliet.
  Matos was on supervised release from his 1996 sen-
tence when he was arrested for driving under the influence
of alcohol and without a license in November 1997. He
served his time for these infractions in the custody of
DuPage County, Illinois, until June 18, 1998, at which
time he returned to the custody of the Illinois Depart-
ment of Corrections to serve the remainder of his 1996
sentence for violating the terms of his supervised release.
At Joliet, Matos again underwent the routine “Reception
and Classification” intake process, and again was inter-
viewed by Charles Bartels. Bartels’s report on Matos in
1998 was nearly identical to the one from the 1996 inter-
view, except that Matos was asked a few additional ques-
tions in 1998 about his history of sexual abuse or assault.
Matos apparently did not fill out a new “Reception and
Periodic Medical History” form at this time, and there is
no evidence that the information from the 1996 form
was provided to or known by Bartels or any other De-
partment of Corrections employee when Matos re-entered
the Illinois prison system in 1998.
  A week later, on June 26, 1998, Matos was transferred
from Joliet to the Western Illinois Correctional Facility
4                                             No. 02-1590

(“Western”) to serve out his sentence. A few days after
he arrived at Western, Matos was evaluated by staff
psychologist Dr. Rose Cox due to the recent death of his
father. Dr. Cox’s report of June 30, 1998, stated:
    Inmate denies reports of any suicidal ideations or
    homicidal ideations at the present time. Inmate
    states he doesn’t want counseling. Inmate states he is
    feeling depressed however, he is not suicidal. Inmate
    was crying on during session while processing feeling
    of frustration dealing with recent death of father.
    Inmate he wanted to know if he could talk to his mother
    by phone. . . . I have encouraged this inmate to come
    for counseling however, he declined. No further follow
    up at this time. Will refer this inmate to see Dr.
    Newman for psychotropic consultation. I have re-
    quested therapeutic call for 5 minutes only be granted
    to the inmate to call his family.
A few days later, Matos asked to speak with one of the
prison’s crisis team members about his feelings of depres-
sion, frustration, and confusion related to the death of
his father. Correctional officer and crisis team member
Amy Lipcaman immediately responded to his request
and interviewed Matos within five minutes of receiving
his call. Her report of July 4, 1998, stated that Matos
was “having troubles coping with two recent deaths in
family (mother and father),”1 was unable to “find com-
fort from family due to transferring in [to Western from
Joliet] and being assigned to locked down wing,” and
was “very emotional but felt he could resolve the prob-
lem. Did not feel he wanted to hurt himself or others at
this time.” Lipcaman’s report also stated that Matos
would be referred to a psychologist.


1
  In fact, only Matos’s father had died. His mother, Aida
Velazques, is still alive.
No. 02-1590                                                5

  Not long after his conversation with Lipcaman, Matos
suffered a seizure and was taken to the prison’s health
care unit for observation. The following day, on July 13,
1998, Dr. Judith Terrell, Medical Director of the health
care unit, treated Matos for his seizure disorder. After
examining Matos and reviewing the lab reports from his
initial physical, which was conducted on July 2 by an-
other of the prison’s doctors, Dr. Terrell increased Matos’s
prescription for his seizure medication, Phenobarbital. Dr.
Terrell also noted that Matos showed no signs of com-
promised mental ability from his seizure activity, nor
of delusions, hallucinations, or psychopathology; never-
theless, Dr. Terrell referred Matos to Dr. Cox for a “follow-
up evaluation.”
  Following Dr. Terrell’s referral, Matos met again with Dr.
Cox on July 15. Dr. Cox’s report of this session states
that Matos was alert and lucid, that he denied any sui-
cidal or homicidal ideations, and that he gave no indica-
tion of delusions or hallucinations, although he admitted
to feeling distressed about his father’s death. Dr. Cox
noted that no crisis watch was needed and that Matos
should enroll in the prison’s stress management program.
Dr. Cox stated in her affidavit, and it is undisputed by
the Estate, that it was her professional opinion follow-
ing her sessions with Matos that he did not pose a threat
to himself or others. Had he posed such a threat, Dr.
Cox stated that she would have arranged immediately
for precautions to be put into place.
  Dr. Terrell saw Matos again on July 20 for follow-up
treatment for his seizures. Dr. Terrell’s report from
her exam stated that Matos was non-compliant with his
seizure medication and complained of drowsiness from
taking another prescribed medication; as before, Dr.
Terrell did not observe any evidence of mental incapacity,
delusions, hallucinations, or psychopathology. Matos had
blood drawn a few days later and the test again showed
6                                              No. 02-1590

his medication levels to be sub-therapeutic. On August 4,
1998, a nurse met with Matos to discuss with him the
importance of taking his seizure medication daily. There
is no evidence of further seizure activity before Matos’s
death on August 8, nor any evidence that the seizures or
his preventative medications contributed in any way to
Matos’s suicide.
  As additional evidence of Matos’s alleged predisposi-
tion to suicide, the Estate submitted the expert report
of Dr. Ronald Shlensky, a board-certified psychiatrist
specializing in forensic psychiatry, and the affidavit of
Maria Matos, the deceased’s sister. Dr. Shlensky opined
that “it was quite clear that [Matos] was psychotically
depressed and suicidal” and that he possessed “almost
every single danger sign of a suicide risk.” Dr. Shlensky
based his opinion on (1) Matos’s self-reported history
of suffering from manic depression, (2) his attempted
suicide in 1995, (3) his history of substance abuse, (4) his
frequent complaints of depression, (5) the recent loss of
his father, and (6) the higher rate of suicide among in-
mates in Matos’s age group. Maria Matos stated that
her brother called her almost daily from Western, was
often crying, and at least once told her that he was think-
ing of committing suicide. Maria does not claim that
she informed any of the defendants or other staff at West-
ern of her brother Luis’s alleged suicide threat.
  On August 8, 1998, Matos was found by a correctional
officer hanging by a bed sheet and boot lace in his cell.
Attempts to revive him using CPR failed, and Matos
was pronounced dead by suicide.


                     II. DISCUSSION
  We review the district court’s grant of summary judg-
ment to the defendants de novo, viewing all facts and
drawing all reasonable inferences in favor of the Estate.
No. 02-1590                                              7

See Melton v. Melton, 324 F.3d 941, 944 (7th Cir. 2003);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The Estate argues that each of the defendants, through his
or her deliberate indifference to Matos’s risk of suicide,
violated Matos’s constitutional right to receive adequate
medical supervision and care during his confinement. A
successful § 1983 claim based on a violation of the Eighth
Amendment requires the Estate to prove two things: (1)
that the harm to Matos was objectively, sufficiently
serious and a substantial risk to his health or safety,
and (2) that the individual defendants were deliberately
indifferent to Matos’s health and safety. See Farmer v.
Brennan, 511 U.S. 825, 832 (1994); Estelle v. Gamble, 429
U.S. 97, 103-06 (1976); Estate of Novack v. County of
Wood, 226 F.3d 525, 529 (7th Cir. 2000). The first prong
is satisfied here since suicide is an objectively serious
harm. Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir.
2001). In dispute in this case is the second prong, which
requires the Estate to prove that each individual defen-
dant subjectively knew that Matos was at substantial
risk of committing suicide and that each individual de-
fendant intentionally disregarded that risk. Novack, 226
F.3d at 529. We have said that deliberate indifference
requires a showing of more than mere or gross negligence,
but less than purposeful infliction of harm. Perkins v.
Lawson, 312 F.3d 872, 875 (7th Cir. 2002); Proffitt v.
Ridgway, 279 F.3d 503, 506 (7th Cir. 2002) (explaining
that deliberate indifference to prisoner’s safety implies
avoidance of known risk, not merely foreseeable risk).
  The Estate cannot prevail on its § 1983 claim because
it has failed to produce any evidence showing that the
defendants had actual knowledge of Matos’s risk of suicide.
In particular, two undisputed facts defeat appellants’
claim. First, Matos never told any of the defendants that
he felt suicidal or depressed beyond his control during
his incarceration at Western, despite having been asked
8                                             No. 02-1590

the question numerous times during intake interviews,
psychological evaluations, crisis counseling, and physical
exams. And second, not one of the defendants who inter-
viewed or examined Matos—each of whom was trained
in psychology, social work, medicine, or crisis response—
ever determined after seeing him that he exhibited sui-
cidal or delusional tendencies or that he needed to be
placed on crisis or suicide watch. Beyond their interac-
tions with and observations of Matos, the defendants
had only one other piece of information that might
have suggested to them that he was at risk of commit-
ting suicide, the “Reception and Medical History” form.
This form recorded the fact that Matos had once, years
earlier, attempted suicide by jumping in front of a train,
but all of the defendants insist that they never saw this
form and the Estate cannot rebut their assertions.
  Even if we assume that this form should have been
included in Matos’s medical history and reviewed by the
defendants, it still does not prove that the defendants
intentionally disregarded a known risk to Matos’s safety.
Considering these facts and being mindful of our duty
to draw all inferences in favor of the Estate, we can at
most suppose that the defendants should have known
not to take “no” for an answer when Matos told them he
was not suicidal. But that inference, if it leads anywhere,
leads only to negligence, and we have already said that
deliberate indifference implies a level of misconduct
more severe than negligence. See Proffitt, 279 F.3d at 506.
  The Estate, recognizing that it lacks direct evidence of
the defendants’ knowing disregard of Matos’s suicidal
tendencies, contends that we should nevertheless infer
the requisite intent from the very fact that the risk to
Matos was so obvious. See Farmer v. Brennan, 511 U.S.
825, 842 (1994). Based on the expert opinion of Dr.
Shlensky, the Estate argues that several pieces of infor-
mation about Matos (i.e., his history of suffering from
No. 02-1590                                               9

manic depression, his attempted suicide in 1995, his his-
tory of substance abuse, and his frequent complaints of
depression related to the recent loss of his father and his
transfer to the lock down wing) add up to only one con-
clusion: that Matos was quite clearly psychotically de-
pressed and suicidal. The Estate insists that the defen-
dants should have ascertained Matos’s risk of suicide
through these several factors and should not now escape
liability for his suicide simply because Matos never
actually told them he was suicidal.
  The main flaw in the Estate’s reasoning is that it ig-
nores the context in which this allegedly obvious diag-
nosis of suicidal depression should have occurred: a
prison. As a population, prison inmates are around nine
times more likely to commit suicide than free persons,
and yet not every prisoner who shows signs of depression
or exhibits strange behavior can or should be put on
suicide watch. See, e.g., Cavalieri v. Shepard, 321 F.3d
616621 (7th Cir. 2003); Jutzi-Johnson v. United States,
263 F.3d 753, 757 (7th Cir. 2001). The fact that Matos
felt distress over the death of his father, expressed unhap-
piness with his transfer to a locked-down wing of the pris-
on, and complained of general malaise related to his
incarceration is neither surprising nor remarkable. Against
this backdrop, we certainly will not impute actual knowl-
edge of Matos’s risk of suicide to the defendants.


                    III. CONCLUSION
  Were we dealing with a case of simple negligence, the
Estate’s argument, based largely on what the defen-
dants should have known about the severity of Matos’s
depression, might be more compelling. But we are instead
evaluating a § 1983 claim which requires a showing of
deliberate indifference to Matos’s safety while he was
incarcerated under the defendants’ watch. The evidence
10                                           No. 02-1590

shows that Matos received a great deal of medical and
psychiatric attention during his brief stay at Western in
the summer of 1998; it also reveals that not one of the
defendants who came into contact with Matos ever sup-
posed, nor actually knew, that Matos posed a grave risk to
his own life. The Estate has not established that any
defendant intentionally disregarded a known risk to
Matos’s health and safety; therefore, the district court’s
grant of summary judgment to all defendants on the fed-
eral § 1983 claim, as well as its decision to dismiss the
Illinois state law claims, is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-2-03
