Estate of Gavin Wallmow , by its Special Administrators Matthew and Michelle Wallmow v. Oneida County

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2141
ESTATE OF GAVIN WALLMOW , by its Special
Administrators Matthew and Michelle Wallmow,
Plaintiff-Appellant,
v.
O NEIDA C OUNTY , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 22-cv-241-jdp — James D. Peterson, Chief Judge.
____________________
A RGUED F EBRUARY 8, 2024 — DECIDED A PRIL 17, 2024
____________________
Before EASTERBROOK, S CUDDER , and S T. EVE, Circuit Judges.
ST. EVE, Circuit Judge. On the Fourth of July, 2021, police
booked Gavin Wallmow into an Oneida County jail. Four
days later he died by suicide in his cell. His is a tragic story.
But it does not, as his estate alleges, implicate the Constitu-
tion. The district court reached the same conclusion in grant-
ing summary judgment to the defendants, and we affirm.

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2 No. 23-2141
I. Background
Since this case arose on summary judgment, we recount
the facts in the light most favorable to Wallmow’s estate. See
Moran v. Calumet City, 54 F.4th 483, 491 (7th Cir. 2022).
On July 4, 2021, Rhinelander Police Department officers
arrested Gavin Wallmow and took him to the county jail after
he violated the terms of his probation. The department gath-
ers information on arrestees on a standardized form called a
“gray sheet.” For Wallmow, the arresting officer marked “no”
in each of four places based on his interactions with Wallmow:
“threat of suicide,” “medical problems,” “violent behavior,”
and “other.” Once Wallmow arrived at the jail, a correctional
officer named Sergeant Glenn Kortenhof reviewed the gray
sheet before asking Wallmow stock booking questions. Some
of these aimed at determining if he had suicidal tendencies:
Wallmow represented that he was not feeling suicidal, had no
suicidal or self-mutilation inclinations, suffered from no men-
tal disability, and was not under psychiatric care. Kortenhof
noted that Wallmow did not display any odd behavior and
appeared lucid, though he had been drinking. In keeping with
the jail’s coronavirus protocols, officers booked Wallmow into
a single-occupancy cell.
Two days later Alexis Bunce, Wallmow’s probation officer,
paid him a visit. Things went smoothly at first, with Wallmow
again denying suicidality. Then Bunce asked Wallmow what
had happened with his sister—police were investigating alle-
gations that Wallmow had sexually assaulted her—and the
conversation took a dark turn. Wallmow’s demeanor trans-
formed. He began to alternately laugh and cry, say “demonic”
things, and hit himself. He worried aloud that his parents
planned to “psionically” harm him. He said Bunce was

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No. 23-2141 3
“talking to a dead man.” And he suggested that at a psychiat-
ric treatment facility, medical personnel might force him to
drink his intestines from a cup. At one point he told Bunce he
felt his skin burning as he entered hell.
Understandably concerned, Bunce called Katie Rudolph,
a corrections officer at the jail. Bunce relayed that Wallmow
was acting oddly, that he had been hitting himself, and that
he was having “demonic” thoughts. The call lasted less than
a minute.
In turn, Rudolph called Wallmow’s cell block, telling the
on-duty officer to watch out for him. Next, following depart-
ment policy, Rudolph called her boss, Sergeant Carrie
Holewinski, recounting Bunce’s observations that Wallmow
was acting oddly, that he had been hitting himself, and that
he was having “demonic” thoughts. There may have been
more to both calls—Bunce to Rudolph, Rudolph to
Holewinski—but the record is inconclusive on that point. At
any rate, Holewinski took note on a “muster,” a log officers
use to pass information from one shift to the next. Her entry
read: “Keep an eye on Wallmow in Secure G 3. According to
his probation agent, he was acting a little weird and talking
about ‘demonic’ stuff.” While in that cell block, Wallmow was
the subject of observation at least 37 times per day through a
combination of cell checks, walkthroughs, and head counts.
During this time he behaved normally.
Two days later, July 8, Officer Matthew Turkiewicz and a
nurse asked Wallmow at 6:15 PM if he might like to be tested
for coronavirus; a negative test would mean a move into the
general population. Wallmow agreed. While the pair admin-
istered the test, Wallmow behaved normally, and the results
came back negative. But rather than moving immediately into

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4 No. 23-2141
the general population, Wallmow remained in his same block.
From the “secure pod,” a place where correctional officers
may safely sit and monitor those cells, Wallmow’s cell was
visible on closed-circuit camera, though not with the naked
eye. Officers in the secure pod had to perform a visual cell
check once per hour or more. One could do this without leav-
ing the pod, relying instead on the camera.
Later that evening, an officer named Reed Symonds took
over as the secure pod operator. Symonds knew from the
muster to keep an eye on Wallmow. He also reviewed the
booking information on Wallmow, including the gray sheet
suggesting no risk of suicide. Symonds conducted required
visual cell checks at 7:31, 8:10, and 9:01 PM. Each passed une-
ventfully.
Cameras recorded much of what follows, but the record-
ing cuts in and out. Here is what we know: At 9:04 PM, Wall-
mow sits down on the bottom bunk of his cell. The camera
cuts out. When it restores the picture at 9:06, Wallmow has
hung a mattress cover from his bed over the top bunk, occlud-
ing a view of the bottom bunk. The jail’s rules prohibited this
practice, but even so, some inmates would break the rule for
privacy. By 9:07, Wallmow’s legs can be seen kneeling by the
bed. Then he extends his legs, curls up, and extends his legs
again. His head cannot be seen behind the cover. He seems to
be in a plank position with his arms on the bed and legs on
the floor. Again the camera cuts out. From what we can dis-
cern at 9:16, Wallmow appears to be lying outstretched, legs
on the floor and torso on the bottom bunk. He is still for the
remainder of the recording.
At 9:43 Symonds ran another cell check. (That was 42
minutes after the last one, which complies with the once-per-

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No. 23-2141 5
hour policy.) He does not remember whether he noticed the
bunk covering. At 9:49, Turkiewicz took over as the secure
pod operator. A minute later, Turkiewicz conducted his own
cell check and reported no issues. He did see the mattress
cover, but does not remember seeing Wallmow.
At 10:00 Kortenhof and Symonds came to lock down the
block. That process entails checking the cells by walking
past—not just reviewing the video. At 10:10, Kortenhof
reached Wallmow’s cell to find Wallmow kneeling with his
knees on the ground and torso on the bunk. After quickly ob-
taining backup, Kortenhof entered the cell, where Wallmow
lay unresponsive. Kortenhof found Wallmow’s pants tied
around his neck, with their other end tied to the bed. Wall-
mow’s face was purple, and he was bleeding from his nose.
Kortenhof and others tried to resuscitate Wallmow without
success. An ambulance rushed Wallmow to the hospital,
where doctors ultimately pronounced him dead at 11:36 that
same night.
Wallmow’s estate brought a series of constitutional claims
under 42 U.S.C. § 1983 on the theory that the jailers failed to
protect Wallmow from himself. The defendants are Rudolph,
Holewinski, Symonds, Turkiewicz, and Oneida County. The
claims run against the officers in their individual capacities,
and against the County as a Monell claim. The district court
granted summary judgment for the defendants, applying
constitutional standards that require the Estate to show that
the defendants’ individual behavior was objectively unrea-
sonable. That element doomed the Estate’s claims because the
district court held the record did not support an inference that
any defendant knew Wallmow faced a serious risk of harm.
And as for the County, the court found no reason to think its

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6 No. 23-2141
policies were so plainly inadequate as to justify liability with-
out any pattern of suicides to put it on notice. The Estate ap-
pealed.
II. Analysis
The district court was correct. We begin by explaining why
no defendant acted in an “objectively unreasonable” manner
before turning to the Estate’s Monell claim, which falls short
for want of an offending policy.
A. Individual Defendants
The Estate claims Rudolph, Holewinski, Symonds, and
Turkiewicz failed to protect Wallmow from himself. Claims
like these can fall under the Fourth or Fourteenth Amend-
ment, depending on the person’s status. “Before a finding of
probable cause, the Fourth Amendment protects an arrestee;
after such a finding, the Fourteenth Amendment protects a
pretrial detainee.” Pulera v. Sarzant, 966 F.3d 540, 549 (7th Cir.
2020). Because the standards are often interchangeable, we
need not always decide which standard applies to dispose of
a case. Id. at 550.
This case is one of those. We have not decided the applica-
ble constitutional provision where, as here, the injured party
came in on a probation hold and awaited adjudication at the
time of the harm. See Estate of Clark v. Walker, 865 F.3d 544, 546
n.1 (7th Cir. 2017). But the parties agreed to use the Fourteenth
Amendment below and have abided by that choice here. Re-
gardless, nothing relevant separates the Fourth and Four-
teenth Amendments in this context.
Under either test, a plaintiff must show that declining to
take preventative action was “objectively unreasonable.” Pul-
era, 966 F.3d at 550. More specifically, that standard asks a

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No. 23-2141 7
plaintiff to establish that a “defendant did not take reasonable
available measures to abate [the] risk, even though a reasonable
officer in the circumstances would have appreciated the high degree
of risk involved—making the consequences of the defendant’s
conduct obvious.” Kemp v. Fulton County, 27 F.4th 491, 496
(7th Cir. 2022). And factfinders may consider only infor-
mation available at the time, resisting the temptation to em-
ploy “the 20/20 vision of hindsight.” Kingsley v. Hendrickson,
576 U.S. 389, 397 (2015). Last note: the inquiry takes a broad
view, looking at any “objective circumstances potentially rel-
evant to a determination” of reasonableness. Id. These include
the prevailing penal circumstances at the facility, accounting
for the need to “preserve internal order and discipline and to
maintain institutional security.” Id. (quoting Bell v. Wolfish,
441 U.S. 520, 540 (1979)).
Our past cases have applied this law to jailhouse suicides,
together setting forth key principles for assessing objective
unreasonableness. An “express statement that [the deceased]
was not considering suicide” from the deceased himself
weighs heavily against objective unreasonableness. Pulera,
966 F.3d at 551; see also Jump v. Village of Shorewood, 42 F.4th
782, 794 (7th Cir. 2022). That conclusion flows from a recogni-
tion of on-the-ground circumstances: practically speaking,
“[n]ot every prisoner who shows signs of depression can or
should be put on suicide watch.” Id. (cleaned up). The facts
should point directly at suicidality, for a deceased’s “general
distress and history of psychiatric treatment would give a rea-
sonable officer notice of general distress and a history of psy-
chiatric treatment, not risk of suicide.” Jump, 42 F.4th at 794.
For that reason, “when an officer has no reason to think a de-
tainee is suicidal, it is not objectively unreasonable to take no
special precautions.” Id. at 793.

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8 No. 23-2141
This case is in the mold of Pulera and Jump, which were
themselves “factually indistinguishable” from one another.
Id. In both those cases, as in this one, the detainee was intoxi-
cated at the time of booking and confirmed at booking that he
was not contemplating suicide. Id. In Pulera, as here, the de-
ceased had spoken with medical professionals without giving
any sign of suicidality. 966 F.3d at 546–47. And in both cases,
the deceased showed some warning signs: Pulera told others
that he might die without anti-anxiety medication, id. at 546,
and another in the cell block reported Pulera “dragging his
thumb across his neck as if he was going to harm himself,” id.
at 545, while in Jump the deceased was seen “slamming his
body against the cell bars,” 42 F.4th at 793. We affirmed the
summary judgment for the defendants in both those cases.
We do the same today because, even viewed in the light
most favorable to the Estate, the record does not support that
“the consequences of the defendant’s conduct [were] obvi-
ous.” Kemp, 27 F.4th at 496. To be sure, Wallmow’s talk with
Bunce ended on a disturbing note. But no defendant handled
the situation in an objectively unreasonable way.
Before turning to the individualized arguments, though,
the Estate notes that the Fourteenth Amendment standard can
make an officer liable if he “was aware of a serious risk of
harm in some form.” Velez v. Johnson, 395 F.3d 732, 736 (7th
Cir. 2005). That much is true: the Fourteenth Amendment ex-
tends past deaths by suicide and sweeps in less grave injuries.
But the Estate makes too much of this rule. In Velez, there
could be no doubt about a serious risk of harm. The plaintiff
had already told the defendant guard about a conflict with the
eventual aggressor—and when the conflict escalated to a rape
at knifepoint, the plaintiff pushed an “emergency call

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No. 23-2141 9
button.” Id. The guard “did nothing.” Id. This case is different:
where in Velez the guards sat on their hands despite the in-
mate’s call for aid, these officers took numerous steps to “keep
an eye” on Wallmow even as he insisted he would not harm
himself, telling Kortenhof at booking that he had no “suicidal
or self mutilation tendencies.” They were not on notice of any
serious risk of harm, even considered more broadly. That flaw
plagues each of the Estate’s claims. And none of its arguments
particular to one or another defendant saves them from sum-
mary judgment.
Rudolph and Holewinski. The Estate urges us to hold this
pair to the same standard as a reasonable officer at booking.
Piecing that argument together with the jail’s rule requiring
booking officers to refer disturbed inmates to a mental health
provider, it infers that Rudolph and Holewinski violated the
Constitution by failing to do so. That conclusion does not fol-
low. As the Estate admits, “a violation of a jail policy is not a
constitutional violation.” Pulera, 966 F.3d at 551. Seeking to
surmount that hurdle, the Estate suggests the jail’s policy
bears at least some probative force toward objective reasona-
bleness. It marshals two out-of-circuit precedents. See Darden
v. City of Fort Worth, 880 F.3d 722, 732, n.8 (5th Cir. 2018);
Gutierrez v. City of San Antonio, 139 F.3d 441, 448–49 (5th Cir.
1998). Those cases, though, were different. Both involved pol-
icies meant to apprise officers of severe, non-obvious risks,
such as the chance that cuffing an obese person’s hands be-
hind their back and laying them down might cause asphyxia-
tion. To borrow our language from Kemp, the policy “ma[de]
the consequences of the defendant’s conduct obvious” in-
stead of obscure. 27 F.4th at 496. Officers need no such policy
to know what risks mental illness poses, though, so these
cases prove little.

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10 No. 23-2141
The Estate’s next argument faults Rudolph and
Holewinski for not ensuring that certain details made it to the
end of the communication chain. Bunce, the probation officer,
told Rudolph that Wallmow was acting strangely, talking
about demons, and hitting himself. (The Estate argues a jury
could infer Bunce told Rudolph more, relying on the two
women’s foggy memories on the call’s specifics. But a “lack of
recollection of [one’s] conversation … does not create a genu-
ine issue of fact” about its contents. Hernandez ex rel. Hernan-
dez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011). That does not
pass muster at summary judgment.)
Holewinski recorded only those first two facts in the mus-
ter, not logging that Wallmow had hit himself. The objective
unreasonableness prong asks a plaintiff to show “a reasonable
officer in the circumstances would have appreciated the high
degree of risk involved.” Kemp, 27 F.4th at 496. No high de-
gree of risk was involved in declining to record the detail
about Wallmow hitting himself. Holewinski acted quickly
and took down the gist, that Wallmow had been behaving
oddly and merited extra attention. The result of the two con-
versations was the note in the muster to keep an eye on Wall-
mow. Both Rudolph and Holewinski behaved reasonably by
acting quickly on the information they had rather than wait-
ing to put together a complete account.
Turkiewicz and Symonds. The Estate charges the cell block
operators with failing to act when Wallmow used his bed cov-
ering to obscure the view of his bed. A jail policy prohibited
inmates from putting up such coverings, but officers rarely
enforced the rule. So too with these officers: Symonds does
not recall seeing the sheet, and Turkiewicz saw it but did not
immediately take it up with Wallmow. By that time, the

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No. 23-2141 11
comprehensive cell check was just twenty minutes away. It
would have afforded a good time to apprise Wallmow of the
rule.
The cell block operators acted reasonably in waiting to en-
force the rule. That is especially so since these covers often
hung from inmates’ beds, affording them privacy. The cell
block operators had seen many covers arranged like this one,
and no inmate at the jail had ever died by suicide, let alone by
using a sheet to shield the act from view. And so the conse-
quences of leaving the cover in place were not obvious, and
in turn there was no objectively unreasonable conduct.
This case is like Jump and Pulera before it. The jail’s em-
ployees were concerned about Wallmow’s behavior, so they
took precautions. At least 37 times per day, officers checked
on Wallmow without seeing anything amiss. Four hours be-
fore he made the attempt on his life, a nurse saw Wallmow,
administered a COVID test, and noted no disturbance or un-
usual behavior. Tragedy struck in spite of all this, but that fact
does not render the precautions constitutionally inadequate.
B. The County
That leaves the Estate’s claim against the County, which
suffers from a more fundamental defect. Because the Estate’s
suit proceeds under 42 U.S.C. § 1983, under which municipal-
ities’ liability does not flow from employees’ bad acts, it must
prove the County’s own involvement under Monell v. Depart-
ment of Social Services, 436 U.S. 658 (1978). That entails a three-
part test: the Estate must show “(1) an action pursuant to a
municipal policy, (2) culpability, meaning that policymakers
were deliberately indifferent to a known risk that the policy
would lead to constitutional violations, and (3) causation,

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12 No. 23-2141
meaning the municipal action was the ‘moving force’ behind
the constitutional injury.” Hall v. City of Chicago, 953 F.3d 945,
950 (7th Cir. 2020). We need not go past the first.
At bottom, the Estate fails on the first prong because the
“policy” it alleges is not a policy at all. Although the facts bear
out the Estate’s claim that officers did not always conduct cell
checks with unflagging rigor—often allowing inmates to
leave bed coverings hanging and not always putting eyes on
each inmate, since the cameras did not show all parts of each
cell—the jail’s on-point policy did call on officers to observe
each inmate at least once an hour and to look for such abnor-
malities. The Estate’s response is to argue the lax enforcement
of the policy is a custom in the jail that amounts to a policy
decision. Such claims can prevail only where the lax practice
was “so pervasive that acquiescence on the part of policymak-
ers was apparent.” Hildreth v. Butler, 960 F.3d 420, 426 (7th Cir.
2020) (quoting Phelan v. Cook County, 463 F.3d 773, 790 (7th
Cir. 2006)).
That bar is too high to clear on these facts. To be sure, Sy-
monds testified that some rules and regulations enjoyed
stricter enforcement than others, and that the rule against
hanging bed coverings fell on the slacker side. But he also ex-
plained that the cell block that housed Wallmow was for
newer inmates, and longer-tenured inmates would have been
told “you can’t hang stuff.” Officers did enforce the policy,
even if not against newcomers. There was no acquiescence on
the County’s part in ignoring the policy, no custom of allow-
ing inmates that small privacy.
Nor can the Estate establish, as it must, that the county’s
inaction bore a “known or obvious risk” of causing constitu-
tional violations. Bd. of Comm'rs of Bryan Cnty. v. Brown, 520

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No. 23-2141 13
U.S. 397, 410 (1997). The undisputed evidence here reveals
that Wallmow’s was the first death by suicide in the jail’s 20-
year history. Only once before had an inmate made a serious
attempt on his own life, and on that occasion an officer inter-
vened to save his life.
III. Conclusion
Wallmow’s fate is tragic. Jails should, and often do, have
policies that help connect people at risk of death by suicide to
mental health resources and get them the help they need. In-
deed, Oneida County Jail has those policies and those re-
sources, though no one brought them to bear on Wallmow.
The problem with the Estate’s claim is that we cannot indulge
the temptation to employ hindsight. Wallmow thrice disa-
vowed that he was at risk, the jail took him at his word, and
after his talk with Bunce nothing indicated otherwise. So the
jail resolved to keep an eye on Wallmow without taking more
intrusive steps. That course complies with the Constitution’s
requirements.
The judgment of the district court is
A FFIRMED.

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