Dequarius D. Fitzpatrick v. CHAD NYS, Sergeant

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 26, 2021*
Decided July 27, 2021
Before
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-3004
DEQUARIUS D. FITZPATRICK,
Plaintiff-Appellant,
v.
CHAD NYS, Sergeant,
Defendant-Appellee.
Appeals from the United States District
Court for the Eastern District of Wisconsin.
No. 19-C-1024
William C. Griesbach,
Judge.
O R D E R
Dequarius Fitzpatrick, an inmate imprisoned at Green Bay Correctional
Institution, was forcibly removed from his cell and put on suicide watch after he sliced
himself with a razor. Later, he sued a prison sergeant for responding with deliberate
indifference to his earlier warnings of suicidal thoughts. See 42 U.S.C. § 1983. The
district court entered summary judgment against him. On appeal, Fitzpatrick challenges
that decision and two discovery rulings. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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The events are disputed; we present the version that favors Fitzpatrick, the party
against whom judgment was entered. Thomas v. Martija, 991 F.3d 763, 767 (7th Cir.
2021). Fitzpatrick suffers from depression and has a history of self-harm. Late one night,
he told Bradley Wenzlaff, a prison guard, that he felt suicidal and asked to be placed on
mental-health observation. Wenzlaff left to go find the sergeant on duty, Chad Nys.
Chaos broke out before Wenzlaff could return with Nys, however. Water began
gushing out of a number of cells on Fitzpatrick’s tier, and Fitzpatrick’s fellow inmates
started shouting about toilets overflowing. At the same time, one inmate threatened to
hang himself with a bedsheet. While guards cleared water from the tier, Nys rushed to
deal with that inmate. Meanwhile, Fitzpatrick and his cellmate also began shouting and
barricaded themselves in their cell.
The parties dispute what else happened during these events. Fitzpatrick says he
told Nys in two separate encounters that he felt suicidal. In the first, shortly after the
flooding began, Nys asked Fitzpatrick to calm down because he was trying to get the
water cleaned up. The second encounter took place after Fitzpatrick and his cellmate
barricaded themselves in their cell. Fitzpatrick showed Nys a razor, upon which Nys
told Fitzpatrick that he was not suicidal and that, in any event, there were no
observation cells available. (Inmates in this unit evidently were permitted to possess
razors.) As Nys walked away, Fitzpatrick says, he shouted at Nys that he could not be
left unattended. Nys, for his part, has attested that neither interaction occurred.
Soon after, Fitzpatrick slashed his arm with the razor on the inside of his elbow,
reopening a wound he had previously inflicted. He proceeded to paint the walls with
his blood. His cellmate shouted for help, and a guard who had been mopping water in
front of the cell radioed Nys for assistance.
Nys rushed to Fitzpatrick’s cell and ordered Fitzpatrick to stop harming himself.
When Fitzpatrick continued to splatter blood over the walls and muttered about killing
himself, Nys incapacitated him with pepper spray. A team of guards then forcibly
removed Fitzpatrick from his cell and took him to the restricted housing unit.
In that unit, a nurse saw dried blood on Fitzpatrick’s forearm and a trail of blood
that he had left behind. Fitzpatrick initially refused to let her examine him and stood
mute in an observation cell, covering his wound. Later, he showed the nurse his cut,
and she documented a “1-2 cm” laceration that was not actively bleeding but required
follow-up. Fitzpatrick accepted a band-aid to cover it. When psychiatric staff examined

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him, he denied further intentions to self-harm. A psychologist continued to treat him
for depression, and he has since harmed himself and experienced suicidal thoughts.
Two years after the incident, Fitzpatrick sued Nys for not immediately granting
his request to be placed on observation status.
Discovery was contentious. Fitzpatrick, who had received incident reports
suggesting that his injury was photographed and the cell extraction taped, sought to
obtain visual evidence of the incident. Prison officials responded that only two videos
remained and neither documented the cell extraction. Fitzpatrick then moved to compel
the production of the materials he had requested and asked for spoliation sanctions.
See F ED. R. C IV. P. 37(e). The district court denied the motion. The court could not
compel the production of materials that did not exist, it reasoned, and Fitzpatrick had
no evidence rebutting attestations by an inmate-complaint examiner that those
materials were inadvertently destroyed before he initiated his lawsuit.
After Nys moved for summary judgment, Fitzpatrick sought a default judgment
against him as a sanction for destroying evidence and perjuring himself—Nys
committed perjury, Fitzpatrick urged, by making statements in his declaration that
were inconsistent with an incident report submitted by Wenzlaff. Nys saw no
inconsistencies between the two documents and stood by his attestations. The court
denied the motion. Questions remained over whether Nys’s account was accurate, the
court observed, but that was not enough to support a finding of perjury or require a
default judgment.
Later, Fitzpatrick cross-moved for summary judgment, and the district court
entered judgment for Nys. The court concluded that Fitzpatrick sustained nothing but
superficial cuts and scratches in the aftermath of the incident, so he had not established
that he faced any objectively serious medical condition. Further, no reasonable jury
could conclude that Nys responded unreasonably to Fitzpatrick’s suicide threat under
the circumstances—flooding on the tier and a suicide attempt by another prisoner.
On appeal, Fitzpatrick begins by challenging the two discovery rulings. First, he
maintains that the court should have sanctioned Nys for failing to produce the videos
and photos he requested. Reports from other guards establish that such evidence
existed, he argues, and the materials would have documented Nys’s indifference to his
condition and the severity of his injuries. The videos, he believes, contained audio of
Nys stating “I didn’t think you were serious” after Fitzpatrick slashed himself. And the
photos would have depicted blood pooled on his cell floor and splattered on the walls.

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The district court permissibly denied the request for sanctions. A spoliation
sanction is proper only when a party has a duty to preserve evidence because he knew,
or should have known, that litigation was imminent. Trask-Morton v. Motel 6 Operating
L.P., 534 F.3d 672, 681 (7th Cir. 2008). A showing of bad faith is also necessary. F ED. R.
C IV. P. 37(e); Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013). Here, Fitzpatrick had
no evidence suggesting that Nys destroyed evidence to hide illicit conduct. And he was
unable to refute an inmate-complaint examiner’s attestations that no photos remained
and the videos had been inadvertently written over in the two years preceding the suit.
Second, Fitzpatrick challenges the denial of his request for a default judgment
based on Nys’s perjury. The alleged perjury concerns the factual dispute over whether
Nys visited Fitzpatrick’s cell before Fitzpatrick slashed himself. As evidence of perjury,
Fitzpatrick points to apparent inconsistencies between Nys’s declaration and Wenzlaff’s
statement in his incident report that he “notified Sgt. Nys of [an incident involving
Fitzpatrick] and relieved him … so he could go speak to … Fitzpatrick.” Fitzpatrick
regards these discrepancies as conclusive proof that Nys lied when he attested that he
appeared at Fitzpatrick’s cell only once, after Fitzpatrick already had cut himself.
Here too the court appropriately exercised its discretion to deny the motion.
Perjury is the “false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” Montano v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008) (citation omitted).
As the district court observed, questions remain over whether Nys’s declaration
provides an accurate account of events. But it is unclear whether Wenzlaff’s report and
Nys’s declaration conflict, much less whether the apparent inconsistencies result from
faulty memory or willful falsehood. A factfinder would not be required to accept
Fitzpatrick’s version of what happened.
We turn now to the merits. To reach a jury on his claim of deliberate indifference,
Fitzpatrick had to present evidence of “an objectively serious medical need that a
defendant correctional officer responded to with deliberate indifference, thereby
resulting in some injury.” Lord v. Beahm, 952 F.3d 902, 904 (7th Cir. 2020); Petties v.
Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) (en banc). The risk of suicide is an objectively
serious medical condition, and it is well established that prisoners have the right to be
free from deliberate indifference to such a risk while in custody. Lord, 952 F.3d at 904;
Lisle v. Welborn, 933 F.3d 705, 716 (7th Cir. 2019) (collecting cases).
Fitzpatrick first challenges the district court’s determination that he failed to
present evidence of an objectively serious medical condition. He argues that he would

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have produced more evidence of the severity of his injury had Nys turned over the
requested photographs and video footage. Moreover, he contends, the only reason he
was not injured more seriously was that guards intervened as quickly as they did.
But even if we accept that Fitzpatrick was at serious risk of suicide and his
injuries were worse than the district court believed, no jury could conclude that Nys
recklessly ignored his condition. On Fitzpatrick’s version of events, Nys raced to his cell
three times after being alerted of Fitzpatrick’s crisis, despite facing two simultaneous
emergencies—flooding at the unit and a suicide threat by another inmate. Though Nys
did not accede to Fitzpatrick’s request to be taken immediately to observation, Nys did
not leave Fitzpatrick unattended: Guards were mopping water in front of Fitzpatrick’s
cell. And Fitzpatrick does not dispute that Nys rushed to his aid and prevented further
self-harm after learning that he had cut himself.
Fitzpatrick insists that a factual dispute remains over when Nys first learned that
he was suicidal, permitting an inference that Nys recklessly ignored his condition.
Fitzpatrick maintains that Nys must have known that he faced a substantial risk of
harm as soon as he brandished the razor with which he intended to kill himself. And,
he says, videos of the cell extraction would have revealed an oral admission by Nys that
he did not heed Fitzpatrick’s warning of suicidal thoughts.
But we agree with the district court that this evidence does not create a material
dispute over whether Nys was indifferent to his plight. To defeat summary judgment,
Fitzpatrick needed evidence that Nys knew he was at substantial risk of taking his life
and intentionally disregarded the risk. Collins v. Seeman, 462 F.3d 757, 761 (7th Cir.
2006). Fitzpatrick acknowledges that Nys intervened immediately upon learning that he
had harmed himself. And he has no evidence that Nys knew of his unstable mental-
health history or realized the gravity of his threats amid the chaotic circumstances on
the prison floor. Further, as Fitzpatrick tells it, Nys did not believe that his warnings
were sincere. Given the steps Nys took upon learning that Fitzpatrick had cut himself,
the district court correctly determined that Nys’s actions—even under Fitzpatrick’s
version of the events—do not reflect “something approaching a total unconcern” for his
welfare. Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (internal citations omitted)
(officers’ failure to prevent detainee from attempting suicide in the backseat of car on
way to involuntary commitment did not permit inference of deliberate indifference in
light of subsequent attempts to get him aid).
AFFIRMED

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