Sign In
  • April 24, 2024

    Failure to Enforce Rule Against Jail Cell Coverings Not Unreasonable

    The estate of a man who took his own life in a county jail failed to show that correctional officers were objectively unreasonable when they failed to enforce a rule that prohibits coverings that obscure views into cells, the U.S Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    A Male Prisoner, Clad In An Orange Jumpsuit, Sitting On The Bed In His Cell With His Head Down On His Knees As a Guard In a Navy Blue Uniform Strides PastApril 24, 2024 – The estate of a man who took his own life in a county jail failed to show that correctional officers were objectively unreasonable when they failed to enforce a rule that prohibits coverings that obscure views into cells, the U.S Court of Appeals for the Seventh Circuit has ruled in Estate of Gavin Wallmow v. Onedia County, No. 23-2141 (April 17, 2024).

    On July 4, 2021, officers with the Rhinelander Police Department arrested Gavin Wallmow on a probation violation. The police took him to the county jail.

    Wallmow told Sergeant Glenn Kortenhof, a correctional officer, that he didn’t feel suicidal, had no inclinations toward suicide or self-mutilation, wasn’t suffering from a medical disability, and wasn’t under psychiatric care.

    ‘Demonic Things’

    Wallmow’s probation officer, Alexis Bunce, visited him in the jail on July 6. The probation officer asked Wallmow what happened with Wallmow’s sister – the police were investigating Wallmow for allegedly sexually assaulting his sister.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Wallmow laughed, then began to cry, then laughed again. He began to say “demonic things” and hit himself.

    Wallmow said he was worried about his parents attacking him “psionically.” Bunce “was talking to a dead man,” Wallmow said.

    Wallmow said that if he went to a psychiatric facility, the staff might force him to drink his intestines from a cup.

    Wallmow then told Bunce that he felt fire on his skin as he entered hell.

    Added to the Muster

    Bunce called Katie Rudolph, one of the jail’s correctional officers.

    Bunch told Rudolph that Wallow was acting strangely and hitting himself; she also told Rudolph that Wallmow was having “demonic” thoughts.

    Rudolph called the cell block where Wallmow was incarcerated. She told the on-duty officer there to watch out for Wallmow.

    Rudolph also called her supervisor, Sergeant Carrie Holewinski, and passed along Bunce’s report on Wallmow’s behavior.

    Holewinski made a note about Wallmow on the muster, a log that’s passed from one officer to another at shift change.

    Grim Discovery

    Sitting in a secure pod, the correctional officers could view Wallmow’s cell on a closed-circuit video feed. They were required to do visual cell checks, using the video feed, at least once an hour.

    On July 8, correctional officer Reed Symonds used the video feed to do three visual cell checks on Wallmow between 7:31 p.m. and 9:01 p.m. Symonds saw nothing unusual during the three cell checks.

    Kortenhof and correctional officer Matthew Turkiewicz locked down the cell block at 10 p.m. At 10:10 p.m, they found Wallmow kneeling on the ground in his cell with his torso on the bunk bed.

    Wallow had tied one end of his pants around his neck, the other to the bed. His face was purple, and he was bleeding from the nose.

    Wallow was taken to the hospital by ambulance. Doctors at the hospital pronounced Wallow dead at 11:36 p.m.

    Family Sues County

    Wallmow’s estate sued Oneida County and the correctional officers in the U.S. District Court for the Western District of Wisconsin, under 42 U.S.C. section 1983.

    The estate alleged that correctional officers had violated Wallmow’s constitutional rights by failing to protect him from himself.

    The district court concluded that the Estate failed to show that the correctional officers’ behavior was objectively unreasonable and granted summary judgment for the County.

    The estate appealed.

    Wallmow’s Own Statement

    Writing for a three-judge panel, Judge Amy St. Eve explained that under Seventh Circuit caselaw, an express statement by the victim of a jailhouse suicide that he or she wasn’t considering suicide weighs heavily against finding defendants in a section 1983 were objectively unreasonable.

    “‘[W]hen an officer has no reason to think a detainee is suicidal, it is not objectively unreasonable to take no special precautions,’” St. Eve. wrote.

    The Estate argued that Holewinski’s failure to note in the muster that Wallmow had hit himself was objectively unreasonable.

    However, Judge St. Eve wrote, “Holewinski acted quickly and took down the gist, that Wallmow had been behaving oddly and merited extra attention.”

    “Both Rudolph and Holewinski behaved reasonably by acting quickly on the information they had rather than waiting to put together a complete account,” St. Eve wrote.

    Rule Rarely Enforced

    The Estate also argued that Turkiewicz and Symonds were objectively unreasonable when they failed to act after Wallmow used his bed cover to obscure the camera’s view of his bed.

    But Judge St. Eve noted that the correctional officers rarely enforced a rule against putting up such coverings.

    “The cell block operators acted reasonably in waiting to enforce the rule,” St. Eve wrote. “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.”

    ‘No Acquiescence’

    Judge St. Eve concluded that the Estate’s claim against the County must fail because Wallmow’s death was not attributable to an act pursuant to a County policy.

    The Estate argued that correctional officers at the jail routinely failed to enforce the rule against putting up coverings.

    But St. Eve pointed out that while Symonds testified that the correctional officers enforced some rules more strictly than others, he also testified that Wallmow’s cell block was for new inmates, and that the correctional officers would have told an inmate who’d been at the jail for a longer period that he couldn’t put up a covering.

    “There was no acquiescence on the County’s part in ignoring the policy, no custom of allowing inmates that small privacy,” Judge St. Eve wrote.

    She also concluded that the Estate had failed to show that County’s inaction carried a “known or obvious risk” of a constitutional violation.

    “The undisputed evidence here reveals that Wallmow’s was the first death by suicide in the jail’s 20-year history,” St. Eve. wrote.

    If you or someone you know is experiencing suicidal thoughts or a crisis, please reach out immediately to the Suicide Prevention Lifeline at 800-273-8255 or text HOME to the Crisis Text Line at 741741. These services are free and confidential.

    Need help? Want to update your email address?
    Contact Customer Service, (800) 728-7788

    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

    State Bar of Wisconsin Logo

Join the conversation! Log in to leave a comment.

News & Pubs Search

Format: MM/DD/YYYY