Allen Frake, in his capacity as Special Administrator of the Estate of Robert Frake v. the City of Chicago, a municipal corporation

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2367
ALLEN FRAKE, in his capacity as Special
Administrator of the Estate of Robert Frake,
Plaintiff-Appellant,
v.
THE CITY OF CHICAGO, a municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 1221--James B. Zagel, Judge.
Argued February 16, 2000--Decided April 24, 2000
Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. A person arrested in
Chicago is likely to find himself in a detention
facility at a district police station. Because of
a potential for suicide, lockup personnel at
detention facilities (jailers, in ordinary
English) are required to make observations of
people as they arrive--observations of signs of
pain or injury, of infection, of drug or alcohol
intoxication, despondency, and whether the person
is carrying medication. In addition, jailers must
ask the detainee whether he has ever tried to
commit suicide and whether he has any serious
medical or mental problems. Regardless of
observations and the answers given to the
questions, jailers also take away belts,
shoelaces, mufflers, ties, and other items which
could be converted into ligatures. After the
person is placed in a cell, the jailers check the
cell every 15 minutes. In addition, the district
watch commander and the desk sergeant are
required personally to inspect the lockup at
least twice during their tour of duty, which
results in a number of inspections which far
exceeds the one-inspection-per-hour requirement
in the State of Illinois "Municipal Jail and
Lockup Standards." If it seems likely that a
person is suicidal, other precautions are taken,
such as placing the person in a cell which can be

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continuously observed and replacing the person’s
clothing with a paper suit. In addition, the City
provides jail workers with training in suicide
awareness.
Despite these precautions, which no one contends
were neglected in this case, Robert Frake--who
was arrested for possession of a small amount of
cocaine--managed to hang himself in his cell at
the District 12 Chicago Police Department lockup.
His father, as administrator of Robert’s estate,
has brought this lawsuit/1 under 42 U.S.C. sec.
1983, claiming that the one thing which would
have prevented Robert’s suicide is the thing
which was not done. The City had done nothing
about the horizontal metal bars in the cells. It
was from a horizontal bar that Robert Frake
hanged himself with his jacket, which he had been
allowed to keep. The task of the district court
(and now us) is to look beyond the obvious and
regrettable tragedy to determine whether the City
deprived Robert Frake, a pretrial detainee, of
his right to life in violation of the Due Process
Clause of the Fourteenth Amendment. The district
court thought not and granted summary judgment
for the City, a decision which we review de novo
under the familiar principle that summary
judgment is proper when there is no genuine issue
of material fact and the moving party is entitled
to judgment as a matter of law. We construe all
facts in the light most favorable to the
nonmoving party and draw all inferences in his
favor. Holtz v. J.J.B. Hilliard W.L. Lyons, Inc.,
185 F.3d 732 (7th Cir. 1999).
The only defendant in this case is the City of
Chicago. For liability to attach against a
municipality under sec. 1983, a plaintiff must
show that "deliberate action attributable to the
municipality directly caused a deprivation of
federal rights." Board of County Comm’rs v.
Brown, 520 U.S. 397, 415 (1997). A plaintiff must
show that municipal policymakers made a
"deliberate choice" among various alternatives
and that the injury was caused by the policy.
Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986).
In this case it is Robert Frake’s due process
rights with which we are concerned. He was a
pretrial detainee, not found guilty of a crime,
and therefore he could not be "punished." For
that reason, his treatment in the detention
facility is analyzed under the Due Process
Clause, rather than the Eighth Amendment’s
prohibition against cruel and unusual
punishments. Bell v. Wolfish, 441 U.S. 520
(1979). But like the protection afforded a
convicted prisoner under the Eighth Amendment, a
detainee is protected from the "deliberate

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indifference" of officials. County of Sacramento
v. Lewis, 523 U.S. 833 (1998); Antonelli v.
Sheahan, 81 F.3d 1422 (7th Cir. 1996).
Specifically, when the claim is based on a jail
suicide we have determined that the protection a
detainee receives is the same as that received by
an inmate claiming inadequate medical attention
under the Eighth Amendment. Mathis v. Fairman,
120 F.3d 88 (7th Cir. 1997); Payne for Hicks v.
Churchich, 161 F.3d 1030 (7th Cir. 1998), cert.
denied, 119 S. Ct. 2339 (1999). A finding of
deliberate indifference requires a showing that
the officials were aware of a substantial risk of
serious injury to the detainee but nevertheless
failed to take appropriate steps to protect him
from a known danger. Id. See also Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Salazar v.
City of Chicago, 940 F.2d 233 (7th Cir. 1991). A
defendant is not, however, required to guarantee
the detainee’s safety. The existence or
possibility of other better policies which might
have been used does not necessarily mean that the
defendant was being deliberately indifferent.
Manarite By and Through Manarite v. City of
Springfield, 957 F.2d 953 (1st Cir. 1992).
Frake contends that the history of suicides in
the Chicago detention facilities coupled with the
fact that the City continues to put detainees
alone in cells with horizontal cross-bars
requires a conclusion that the City is, in fact,
deliberately indifferent. He claims that from
December 4, 1990, until November 18, 1997, there
were 20 other suicides and 163 attempted suicides
by hanging, a number which he finds convincing
proof of the City’s liability. The City says the
figures are suspect and inadmissible, but in any
case do not add up to deliberate indifference. It
says that during that period the Chicago Police
Department made 2,111,640 nontraffic arrests,
which would mean, at most, that .0087 percent of
arrests resulted in suicides or attempted
suicides by hanging. The City does not argue that
the number of suicides is acceptable, merely that
it does not give rise to constitutional
liability.
We do not think that numbers can tell the whole
story. It is possible that one or two suicides
coupled with other evidence could add up to
deliberate indifference in a proper case. The
fact of an unfortunate, but not outrageous,
number of suicides, however, given other
precautions which may be taken, might not. See
Manarite.
Neither can the construction of the jail cells
be viewed in isolation. As we have noted, many
precautions are taken to ensure the safety of
detainees. Given the fact that the City took

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other precautions with detainees, we cannot find
that the continued use of the cells as
constructed equals deliberate indifference. See
also Payne for Hicks.
Another factor which is instructive, but not
conclusive, of the issue in this case is that the
type of cell used in Chicago detention facilities
is authorized by the State of Illinois Municipal
Jail and Lockup Standards for new construction.
The standards allow a steel grille or reinforced
solid masonry. Frake does not present evidence
that the City’s cells or the Illinois standards
fall outside the range of professional judgment
about cell design.
The City is entitled to summary judgment. Frake
has raised no genuine issue of material fact
which might lead to a conclusion that the City
maintains a policy which is deliberately
indifferent to the risks of putting detainees in
the existing cells. There is no evidence that
anyone had knowledge that Robert Frake was
suicidal. The screening process used in the
detention facility is thorough. The lockup
personnel receive training. There is no dispute
that the cells are checked every 15 minutes or
that obviously dangerous items are removed from
the detainee’s possession. The death of Robert
Frake was a tragedy. But the record shows that as
a matter of law the City of Chicago was not
deliberately indifferent to his welfare. The
decision of the district court is, therefore,
AFFIRMED.
/1 The case, originally filed in state court in
Illinois, was removed by the City of Chicago to
the federal District Court for the Northern
District of Illinois.

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