Belbachir v. McHenry Cnty., IL, No. 13-1002 (7th Cir. 2013)

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Belbachir, an Algerian citizen, 27 years old, entered the U.S. as a visitor in 2004. She overstayed and, in 2005, flew from Chicago to England, where immigration authorities returned her to Chicago. She was placed in the McHenry County Jail, which has a contract with the federal government to house detainees. She planned to seek asylum on the ground that she had a well‐founded fear of being persecuted if returned to Algeria. She committed suicide by strangling herself with her socks about eight days after arriving at the jail. Her estate sued under 42 U.S.C. 1983, arguing that defendants had deprived Belbachir of her life without due process of law, and under Illinois tort law. The district judge granted summary judgment in favor of defendants with respect to the section 1983 claims. The plaintiff appealed only with respect to McHenry County; the county sheriff and the director of the jail; and three employees of Centegra, a private firm, hired to provide medical services at the jail. The Seventh Circuit reversed with respect to one Centegra employee, who was aware of Belbachir’s suicidal thoughts and depressed condition, but failed to take action. The court otherwise affirmed.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 1002 ABDELKADER RACHID BELBACHIR, administrator of the estate of HASSIBA BELBACHIR, deceased, Plaintiff Appellant, v. COUNTY OF MCHENRY, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 06 C 1392 Philip G. Reinhard, Judge. ____________________ ARGUED JUNE 6, 2013 DECIDED AUGUST 12, 2013 ____________________ Before POSNER, ROVNER, and WOOD, Circuit Judges. POSNER, Circuit Judge. Hassiba Belbachir committed sui cide in McHenry County Jail, a local Illinois jail in which she was confined at the request of federal authorities pending a removal hearing. An Algerian citizen, aged 27, she had en tered the United States as a visitor in November 2004. She overstayed and in February of the following year flew from Chicago to England (we don t know why), where the immi 2 No. 13 1002 gration authorities detained her for about a week and then returned her to Chicago. U.S. immigration authorities took her into custody upon arrival and placed her in the McHen ry County Jail, which has a contract with the federal gov ernment to house persons detained by order of those author ities. She was to remain there until her removal hearing, an ticipated to take place within a couple of weeks. She planned to ask at the hearing for asylum in the United States on the ground that she had a well founded fear of being persecuted should she be returned to Algeria. Her first day in the jail was March 9; she killed herself on March 17. Her estate brought suit against a variety of de fendants under both 42 U.S.C. § 1983 arguing that they had deprived Belbachir of her life without due process of law and Illinois tort law. The district judge relinquished the sup plemental state law claims when he granted summary judgment in favor of all the defendants with respect to the section 1983 claims. The plaintiff has appealed from the dis missal only of six of the defendants: McHenry County itself; the county sheriff and the director of the McHenry County Jail; and three employees of the Centegra Health System, a private firm that the County had hired to provide medical services at the jail. The defendants argue to begin with that the doctrine of the law of the case requires their dismissal because the ground on which the district court dismissed the other de fendants is equally applicable to them. Even if it is, the ar gument fails. The doctrine of law of the case never blocks a higher court from examining a decision of an inferior tribu nal. Payne v. Churchich, 161 F.3d 1030, 1038 n. 9 (7th Cir. 1998) (internal quotation marks and citations omitted); see No. 13 1002 3 also Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1004 (7th Cir. 2007). A plaintiff s decision to abandon a defendant on appeal, when other defendants remain in the case, is not an acknowledgment that the dis missal was sound, and is therefore not a basis on which the remaining defendants can plead waiver or forfeiture. The plaintiff rightly bases her federal claims on 42 U.S.C. § 1983, which imposes tort liability on state and local em ployees, and sometimes their employer, and sometimes oth er state and local agents, for violating federal rights. Had the contract between the federal government and McHenry County to house aliens suspected of being forbidden to enter or remain in the United States made the county jail a federal instrumentality and its personnel (maybe including Cente gra s employees, though they were not employees of the jail) federal officers, the jail staff would be suable for federal con stitutional violations under the doctrine of Bivens v. Six Un known Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than under section 1983. But the contract did not federalize McHenry County Jail, which continued to house nonfederal as well as federal prisoners. Cases similar to this, allowing section 1983 claims by federal prisoners against county or city employees, are legion. See, e.g., Hunter v. Amin, 583 F.3d 486 (7th Cir. 2009); Lewis v. Downey, 581 F.3d 467, 471 n. 3 (7th Cir. 2009); Ortiz v. Downey, 561 F.3d 664 (7th Cir. 2009); Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008); Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010); Wil son v. Blankenship, 163 F.3d 1284 (11th Cir. 1998). And cf. Logue v. United States, 412 U.S. 521, 529 30 (1973), a jail suicide suit under the Federal Tort Claims Act. See 28 U.S.C. § 1346. 4 No. 13 1002 Although Centegra s employees are not public employ ees, they rightly do not deny that in performing functions that would otherwise be performed by public employees, they were acting under color of state law and therefore could be sued under section 1983. See, e.g., West v. Atkins, 487 U.S. 42, 49 54 (1988); Rice ex rel. Rice v. Correctional Medical Ser vices, 675 F.3d 650, 670 73 (7th Cir. 2012); Rodriguez v. Plym outh Ambulance Service, 577 F.3d 816, 824 26 (7th Cir. 2009); Conner v. Donnelly, 42 F.3d 220, 224 25 (4th Cir. 1994). Oth erwise state and local government could immunize itself from liability under section 1983 by replacing its employees with independent contractors. Arriving at the merits, we meet at the threshold the ques tion of the proper standard for determining liability. The plaintiff argues that for want of any judicial or even quasi judicial determination that Belbachir was or might be a crim inal her detention in the jail was a civil commitment the proper standard of liability is that of reasonableness, the standard under the Fourth Amendment (made applicable to state action by interpretation of the due process clause of the Fourteenth Amendment) for the seizure of a person. See, e.g., Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011); Sallenger v. City of Springfield, 630 F.3d 499, 503 (7th Cir. 2010); Aldini v. Johnson, 609 F.3d 858, 866 (6th Cir. 2010). The defendants, seconded by the district judge, contend that the proper standard is deliberate indifference (to the risk of suicide), a standard they interpret as requiring knowledge (not just suspicion or reason to know) that the risk is sub stantial. And there are cases that say that too. E.g., Estate of Miller v. Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012); Porro v. Barnes, supra, 624 F.3d at 1325 26; Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000). No. 13 1002 5 The Fourth Amendment forbids unreasonable searches and seizures. The immigration authorities, reasonably be lieving that Belbachir was inadmissible to the United States, were entitled to detain her pending the hearing on her appli cation for asylum; in fact the applicable regulation required them to do that. 8 C.F.R. § 235.3(b)(4)(ii). As the validity of the regulation, and therefore of her detention, is not chal lenged, she was in the same position as a lawfully arrested pretrial detainee, Porro v. Barnes, supra, 624 F.3d at 1325 26; Edwards v. Johnson, supra, 209 F.3d at 778, who cannot com plain of an unreasonable seizure in violation of the Fourth Amendment but is entitled, by the due process clause of the Fifth or Fourteenth Amendments, to at least as much protec tion as convicted criminals are entitled to under the Eighth Amendment, City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983); Rice ex rel. Rice v. Correctional Medical Services, supra, 675 F.3d at 664; Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002); Boswell v. County of Sher burne, 849 F.2d 1117, 1120 21 (8th Cir. 1988) namely protec tion from harm caused by a defendant s deliberate indiffer ence to the detainee s safety or health. See, e.g., City of Revere v. Massachusetts General Hospital, supra, 463 U.S. at 244; King v. Kramer, 680 F.3d 1013, 1017 (7th Cir. 2012); Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012); Ramos v. Patnaude, 640 F.3d 485, 489 (1st Cir. 2011). In Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010), we added to at least and probably more. Belbachir was detained only because an alien determined to be inadmissible upon arrival in the United States who seeks asylum is required to be detained until his or her asy lum application is ruled on. She was not a convicted crimi nal; and persons who have been involuntarily committed 6 No. 13 1002 are entitled to more considerate treatment ¦ than criminals whose conditions of confinement are designed to punish. Youngberg v. Romeo, 457 U.S. 307, 321 22 (1982). True, Romeo had been committed because of profound mental retardation rather than because of any violation of law. He may there fore have deserved greater protection than a person who may well be an illegal alien, which was Belbachir s status, though she had a shot at asylum. She might be analogized instead to a person who having been lawfully arrested and failed to make bail is being held in jail pending trial. But that person will have received a probable cause hearing before a judicial officer within 48 hours of arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Belbachir was detained indefinitely without any hearing. By depriving her for an indefinite time of any source of protection (including protection against herself) other than persons employed by or working at or managing the jail, the jail personnel became obligated by ordinary tort principles to provide her with reasonable care. Dezort v. Village of Hinsdale, 342 N.E.2d 468, 472 73 (Ill. App. 1976); Gordon v. City of New York, 517 N.E.2d 1331, 1332 (N.Y. 1987) (per curi am); Thornton v. City of Flint, 197 N.W.2d 485, 493 (Mich. App. 1972); Restatement (Second) of Torts § 314A(4) (1965). Neither the guards nor the members of the medical staff were involved in the decision to detain her; but they were her custodians, responsible therefore for her safety. But ordinary tort principles do not govern suits charging federal constitutional torts. If we assimilate Belbachir s case not to that of Romeo or McLaughlin but to that of a prison inmate, then the plaintiff must prove not only that the de fendants by detaining Belbachir deprived her of an alterna No. 13 1002 7 tive source of protection from danger but also that in failing to protect her (as only they could do) they acted with delib erate indifference to the danger, though if the danger was obvious the defendants deliberateness (that is, their knowledge of the risk) could be inferred. Farmer v. Brennan, 511 U.S. 825, 842 43 (1994); Doe v. St. Francis School District, 694 F.3d 869, 871 (7th Cir. 2012); Estate of Miller v. Tobiasz, su pra, 680 F.3d at 990; Prude v. Clarke, 675 F.3d 732, 735 (7th Cir. 2012); Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009). We do not have to choose among standards of care in this case, however. Even under the toughest possibly applicable standard, that of deliberate indifference, one defendant, Vic ki Frederick, should not have been dismissed from the suit; and even under the most lenient standard, that of Youngberg v. Romeo, which resembles though is not identical to a negli gence standard, see 457 U.S. at 319 25, the other defendants were properly dismissed. (As we ll see, they may have been negligent, but no causal relation between their negligence and the suicide was shown.) We begin with deliberate indifference and defendant Frederick a licensed clinical social worker employed by Centegra noting first that the application of the standard of deliberate indifference varies with circumstances, as this case illustrates. Had Belbachir been a known violent crimi nal, security needs might have made it difficult for the guards and medical personnel to provide her with the same level of protection, including protection from herself, as would be possible in a different environment. If the risk of suicide is enhanced by isolation, nevertheless regard for the safety of other prisoners may preclude allowing a prisoner to have a cellmate. But this is not such a case. 8 No. 13 1002 The suicide rate in jails has fallen a great deal in recent years; it was estimated to be 9 times the rate in the general population in 1988 and only 3 times that rate in 2005. Lindsay M. Hayes, National Study of Jail Suicide: 20 Years Later 46 (National Center on Institutions and Alternatives, April 2010). Yet even the lower ratio is frighteningly high. And the risk of a jail suicide is concentrated in the first week of deten tion 48 percent of jail suicides occur then. Christopher J. Mumola, Suicide and Homicide in State Prisons and Local Jails 8 (U.S. Bureau of Justice Statistics, Aug. 2005). Belbachir killed herself on the eighth day. She was not a criminal and was no danger to any person in the jail, whether staff member, detainee, or visitor. She was an obvious suicide risk who should have been hospital ized or at least placed on suicide watch, during which a guard would have glanced into her cell every 10 minutes. There are more elaborate forms of suicide watch (see Sui cide Watch, Wikipedia, http://en.wikipedia.org/wiki/ Suicide_watch (visited Aug. 8, 2013)) for it needn t take 10 minutes to kill oneself. But there is no contention that the jail s method of suicide watch was inadequate, let alone con stitutionally deficient. We don t have to recite the depressing facts that culmi nated in her strangling herself with her socks. It is enough simply to reproduce at the end of this opinion the report of the intake screening by a guard and the mental health pro gress notes by defendant Frederick the only potentially culpable Centegra employee, as we ll see. The guard who filled out the intake report changed Bel bachir s answer yes to the question Are you currently ex tremely depressed or feeling suicidal? to no. He stated in No. 13 1002 9 his deposition that he had simply made a mistake initially, in circling yes when he meant no. Maybe so, but a jury would not have to believe him. It might find that he d been afraid of getting into trouble by having answered yes but then having failed to place Belbachir on suicide watch, and so he changed yes to no. There is conflicting evidence on when he changed it. He is not, however, a defendant. Frederick s mental health progress notes, composed on March 14, three days before Belbachir s suicide, on the basis of an interview that Frederick had conducted with Belbachir earlier that day, stated that Belbachir was suicidal and suf fering from a major depressive disorder a warning sign for suicide and described in detail a host of deeply alarm ing symptoms. Frederick denigrates the gravity of her notes by arguing what in another context would be comical that Belbachir had denied having a specific suicide plan. The implication is that if Belbachir had said, I intend to commit suicide as soon as I formulate a specific plan for how to do so, but not before, Frederick would have replied, okay, but tell us when you have devised your plan so that we can pre vent your carrying it out, but that otherwise Frederick was entitled to do nothing. The intake report is dated March 9; the mental health progress notes are dated five days later. The deterioration in Belbachir s mental state is apparent from a comparison of these documents, which we append to this opinion. Freder ick did not report the contents of her mental health progress notes to any of the guards. And despite the alarming con tents of those notes, neither she nor any other member of the medical staff had any further contact with Belbachir after March 14, three days before her death. Frederick denies hav 10 No. 13 1002 ing seen the intake report, although it was in Belbachir s medical file, to which Frederick had access. The risk of suicide was obvious to Frederick. The defend ants argue that the risk was small. That is imprecise. The risk, in the sense of the probability that it would materialize (5 percent, 20 percent, etc.), was unknown. But when an ad verse consequence is very great, the failure to take a simple, inexpensive, obvious, and indeed prescribed measure to avert it is inexcusable. In economic terms, an expected loss can be expressed as P x L, where P is the probability that the loss will occur and L is the magnitude of the loss if it occurs. Even if the probability is low, if the loss if the probability materializes is very great, as it was here, and the burden (i.e., cost), B, of preventing the event causing the loss (the suicide) is very low, as it seems to have been here, as well, the failure to take preventive action may be negligent (if B is smaller than P x L the famous Hand formula for negligence, United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)), or worse than negligent if B is much lower than P x L, as ap pears to have been the case here too. And even if the varia bles cannot be quantified, often they can at least be approx imated. The defendants could have placed Belbachir in a mental hospital or at least on suicide watch. These were simple and obvious precautions against a risk of suicide. A severely de pressed person who has hallucinations, acute anxiety, and feelings of hopelessness and helplessness and who cries con tinually, talks incessantly of death, and is diagnosed as sui cidal, is in obvious danger, and if the danger (known to a defendant) can be averted at slight cost, the failure to try to avert it is willful. Cavalieri v. Shepard, 321 F.3d 616, 620 21 No. 13 1002 11 (7th Cir. 2003); Sanville v. McCaughtry, 266 F.3d 724, 737 38 (7th Cir. 2001); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1244 45 (9th Cir. 2010); Coleman v. Parkman, 349 F.3d 534, 539 (8th Cir. 2003); Comstock v. McCrary, 273 F.3d 693, 704, 709 10 (6th Cir. 2001). The district judge reviewed the facts in detail but regard ing the medical staff concluded simply that none of them subjectively knew [that Belbachir] was at substantial risk of committing suicide. But as the judge didn t explain what he meant by substantial in this context we can give no weight to his conclusion. Nor are the facts so one sided as to justify taking from a jury the issue of defendant Frederick s refusal to act in the face of a significant risk of suicide known to her. The other Centegra defendants, however, were properly dismissed, and would have been even under a negligence standard. The nurse who found Belbachir dead in her cell, and whom the plaintiff accuses of having exhibited willful disregard for Belbachir s welfare by failing to attempt cardi opulmonary resuscitation, cannot be held liable. The attempt would have done no good. Belbachir was already dead, as confirmed by a prompt attempt to resuscitate her by means of a defibrillator, which registered no pulse. Thus an elemen tary requirement of liability causation was missing. As for Centegra Nurse Manager Kaplan (Frederick s boss), there is no evidence that she knew that Belbachir was suicidal. She treated Belbachir for panic attacks and anxiety, and recommended both that she be given a roommate (which she was, initially) and that she be transferred to the med pod (the part of the jail in which detainees requiring medical treatment were confined); and that was also done. But Frederick didn t tell Kaplan that Belbachir was suicidal. 12 No. 13 1002 Kaplan didn t review Frederick s notes until after Belbachir s death, but there is no evidence that her failure to do so was a dereliction of duty. Last we consider whether McHenry County may also be liable for failing to prevent Belbachir s suicide. None of the guards is a defendant, and the county sheriff is sued only in his official capacity, which means that the suit against him is really against the County, the government agency that em ploys him. Kentucky v. Graham, 473 U.S. 159, 165 66 (1985); Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008). The jail s director (the only other County employee named as a defendant) is sued in his personal capacity. But there is no evidence of his complicity in the acts (or rather omissions to act) that failed to reduce the risk of suicide to Belbachir, so we affirm his dismissal from the case. The judge said that the County could not be liable unless one of its employees was. That s incorrect. What s true is that if a County employee were liable, the County itelf would not be liable merely by virtue of the doctrine of re spondeat superior; the doctrine is inapplicable in section 1983 cases. But an institution can violate section 1983 just as an individual can. The plaintiff complains that the County failed to provide annual training to its jail staff on how to recognize the risk of suicide (the members of the staff did receive such training when they were hired), failed to have a written suicide prevention policy, and lacked policies governing communi cation between the medical staff and the guards. Granted that the sheriff, the County s policymaker regarding the jail, knew of the suicide risk to prisoners, especially new prison ers there had been a number of suicide attempts in the No. 13 1002 13 previous 10 years (though precisely how many we don t know) nevertheless the grounds on which the plaintiff ac cuses the sheriff of deliberate indifference to the risk of sui cide are thin. The facts in cases in which a county jail or oth er local jail (or its sheriff) have been held liable for deliberate indifference to prisoners safety or health are much more fa vorable to the plaintiff than the facts in this case. See Thomas v. Cook County Sheriff s Dep t, 604 F.3d 293, 302 04 (7th Cir. 2010); Duvall v. Dallas County, 631 F.3d 203, 208 09 (5th Cir. 2011) (per curiam); Long v. County of Los Angeles, 442 F.3d 1178, 1188 89 (9th Cir. 2006); Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir. 2004). It s difficult to see why formal policies would be neces sary to assure adequate communication between the guards and the members of the medical staff, since they work side by side. More troublesome is the failure either to have pro vided annual training or to have had a written policy; with neither, a lot of weight was being placed on guards memory, though no doubt the suicide attempts jogged their memory. But at worst the sheriff s failure to take the addi tional measures that the plaintiff thinks necessary was negli gent, and maybe not even that. For while the immigration authorities, who monitor the jail s treatment of its federal prisoners, rated the jail s suicide prevention policy defi cient in 2002, they rated it acceptable in both 2003 and (the last evaluation before Belbachir committed suicide) 2004. Shortly after the suicide, it is true, the immigration authori ties, in what may be an example of hindsight bias, found fault with the jail s suicide prevention policies for (1) forgo ing annual training of the jail staff in suicide prevention; (2) having only an incomplete or inconsistent policy governing intake screenings; (3) lacking written procedures on when to 14 No. 13 1002 place detainees on, or remove them from, suicide watch; and (4) sometimes allowing guards to perform the required 10 minute checks of prisoners on suicide watch by intercom ra ther than visually. But there is no evidence that the sheriff was aware of any of these failures except the first. And even if the sheriff was culpable for failing to discov er and correct the deficiencies argued by the plaintiff, there is no evidence that correcting them before Belbachir arrived at the jail would have prevented her suicide. Once again a causal relation between fault and injury is missing. The criti cal failure to prevent Belbachir s suicide occurred when de fendant Frederick, having decided that Belbachir was not suicidal, failed to tell the guards to put her on suicide watch. Two of the three deficiencies of which the plaintiff com plains the absence of annual training and of a written sui cide prevention policy are addressed to the guards rather than to the medical staff. The third the absence of a policy governing communication between the medical staff and the guards could not have played a causal role either, because Frederick, not thinking that Belbachir was a suicide risk, had no warning to communicate to the guards. The judgment must be reversed and the case remanded for trial, limited however to defendant Frederick. The dis missal of the supplemental state law claims against Centegra and its employees is vacated as well, since the premise of the dismissal was the dismissal of all the federal claims, and we are restoring one of them. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. No. 13 1002 15 APPENDIX: INTAKE QUESTIONNAIRE AND MENTAL HEALTH PROGRESS NOTES 16 No. 13 1002 No. 13 1002 17 18 No. 13 1002

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