Currie v. Chhabra, No. 12-2709 (7th Cir. 2013)

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Okoro was arrested without a warrant on suspicion of a misdemeanor property crime. For unknown reasons, Okoro never received a “Gerstein hearing” to determine probable cause during his two months of incarceration. Okoro, then 23, had Type I diabetes, which he could control by monitoring his blood sugar levels. While he was in college, however, he was diagnosed with schizophrenia, which compromised his ability to care for his diabetes. Immediately after his arrest, Okoro’s relatives began calling to inform correctional employees and medical staff of his conditions. Okoro was detained in his cell, usually in isolation, and was dependent on jail employees and medical staff to monitor his blood sugar level and provide insulin shots. On December 23, 2008, Okoro collapsed in his cell. An autopsy revealed that Okoro’s death was the result of diabetic ketoacidosis, a buildup of acidic ketones in the bloodstream that occurs when the body runs out of insulin. A doctor and a nurse, employed by the healthcare company that contracts with the jail, moved for dismissal of the estate’s suit under 42 U.S.C. 1983. The district court denied their qualified immunity claims. The Seventh Circuit affirmed, stating that the record easily supports a finding of deliberate indifference to Okoro’s serious medical condition.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 12 2709 JACLYN CURRIE, as personal representative, Administrator for the Estate and on behalf of the Heirs of PHILLIP OKORO, Plaintiff Appellee, v. JOGENDRA CHHABRA, et al., Defendants Appellants. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 09 cv 866 MJR Michael J. Reagan, Judge. ____________________ ARGUED MAY 29, 2013 DECIDED AUGUST 20, 2013 ____________________ Before BAUER, WOOD, and TINDER, Circuit Judges. WOOD, Circuit Judge. Phillip Okoro spent the last 69 days of his short life which ended two days before Christmas, on December 23, 2008, at age 23 in a Williamson County, Illinois jail cell. An autopsy determined that his death resulted from diabetic ketoacidosis, a life threatening condition associated with untreated Type I diabetes. Jaclyn 2 No. 12 2709 Currie, Okoro s sister and the administrator of his estate, brought suit in federal court, alleging violations of Okoro s federal constitutional rights and state law. Two of the named defendants, Dr. Jogendra Chhabra and Nurse Marilyn Ann Reynolds, were employees of a private company (Health Professionals, Ltd.) under contract to provide medical services to the county s inmates at the time of Okoro s death. Shortly before trial, Chhabra and Reynolds filed a motion to dismiss Currie s complaint, asserting qualified immunity on Currie s Fourth Amendment claims. The district court denied the motion, and Chhabra and Reynolds filed this interlocutory appeal. We affirm. I Okoro was arrested without a warrant at his residence on October 15, 2008, on suspicion of having committed a misdemeanor property crime. The Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest, usually within 48 hours. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991) (discussing Gerstein v. Pugh, 420 U.S. 103 (1975)). For unknown reasons, Okoro never received such a Gerstein hearing during his two months of incarceration. Williamson County contracts with Health Professionals, Ltd. to provide medical care for arrestees and inmates held at the county jail. As a teenager, Okoro was diagnosed with Type I diabetes, which he was able to control with careful monitoring of his blood sugar levels. But his problems worsened while he was in college, when he was diagnosed with schizophrenia. The latter disease compromised his ability to monitor and care for his diabetes. Immediately No. 12 2709 3 after his arrest, Okoro s family members began calling the Williamson County jail to inform correctional employees and medical staff of Okoro s mental illness and diabetic condition. According to the complaint, during his time at the jail Okoro was under the care of Dr. Chhabra and Nurse Reynolds. For the most part, he was detained in his cell, usually in isolation, and thus he was dependent on jail employees and medical staff to monitor his blood sugar level, provide insulin shots, and deliver other necessary medical care. On December 23, 2008, Okoro collapsed in his cell; he was pronounced dead at the Heartland Regional Medical Center. An autopsy revealed that Okoro s death was the re sult of diabetic ketoacidosis, a buildup of acidic ketones in the bloodstream that occurs when the body runs out of insu lin. See Mayo Clinic Staff, Diabetic Ketoacidosis, http://www. mayoclinic.com/health/diabetic ketoacidosis/DS00674 (last visited Aug. 20, 2013). Currie s complaint alleges that Oko ro s death was completely preventable and would not have occurred had Okoro received adequate medical care, including regular testing of his blood sugar levels and suffi cient insulin to keep his blood sugar level steady. Currie filed her initial complaint on October 14, 2009, naming as defendants various jail officials, Williamson County, Chhabra and Reynolds, and Health Professionals, Ltd. The initial iterations of her complaint alleged that the defendants acted with deliberate indifference to Okoro s medical needs, suggesting a claim that the defendants violated Okoro s due process rights under the Fourteenth Amendment. See Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003) ( The Eighth Amendment does not apply to 4 No. 12 2709 pretrial detainees, but as a pretrial detainee, [Plaintiff] was entitled to at least the same protection [under the Due Process Clause] against deliberate indifference to his basic needs as is available to convicted prisoners under the Eighth Amendment. ). At the close of discovery, however, in response to the defendants motion for summary judgment, Currie argued for the first time that the Fourth Amendment s objectively unreasonable standard should govern. See Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007) ( [C]onditions of confinement for pretrial detainees ¦ who have not yet had a judicial determination of probable cause (a Gerstein hearing) are ¦ governed by the Fourth Amendment and its objectively unreasonable standard. ). The court accepted this argument, ordered Currie to file an amended complaint to reflect this theory, and dismissed without prejudice Currie s previous complaint. See FED. R. CIV. P. 16(c)(2)(B); 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1525 (3d ed. 2012). Hours after this ruling, Currie settled with the jail offi cials and Williamson County, leaving Chhabra, Reynolds, and Health Professionals, Ltd. as the sole remaining defend ants. Upon receipt of Currie s revised complaint alleging objectively unreasonable conduct, Chhabra, Reynolds, and Health Professionals filed a motion to dismiss, asserting qualified immunity because the Fourth Amendment has not been applied to licensed medical professional[s] subcon tracted to care for state detainees. The court denied this mo tion. Only Chhabra and Reynolds are before us on appeal. No. 12 2709 5 II Before turning to the heart of the appeal, we must address Currie s argument that this court lacks jurisdiction to hear Chhabra and Reynolds s interlocutory appeal because their motion to dismiss was procedurally improper. Currie maintains that Chhabra and Reynolds should have asserted qualified immunity promptly when the district court ruled that it would use a Fourth Amendment framework to assess Currie s constitutional claims. Instead, they waited to receive Currie s amended complaint. The district court wasted little ink rejecting this argument as disingenuous, explaining that it was not until Currie filed her final amended complaint (which, for the first time, alleged that the defendants conduct was objectively unreasonable ) that her pleadings reasonably suggested that the Fourth Amendment was applicable. There is no merit at all in this argument. To begin with, we remind parties again that there is no duty to plead legal theories. See, e.g., Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011); Hatmaker v. Mem l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); Aaron v. Mahl, 550 F.3d 659, 666 (7th Cir. 2008). It therefore does not matter whether the complaint mentioned the Fourth Amendment, the Fourteenth Amendment, or neither, so long as it provided adequate no tice of the plaintiff s claim to the defendants. As for qualified immunity in particular, even though ideally an immunity defense should be resolved at the earliest stage possible, Ta mayo v. Blagojevich, 526 F.3d 1074, 1090 (7th Cir. 2008), that is a guideline, not a rigid rule. Here, the district court did not abuse its discretion when it entertained the defendants qualified immunity argument. See Jogi v. Voges, 480 F.3d 822, 6 No. 12 2709 836 (7th Cir. 2008) (district court may, in its sound discretion, consider belated assertion of qualified immunity defense in procedurally complex cases). Nothing approaching a juris diction problem bars our consideration of the court s ruling. III On the merits, the defendants first contention is that Currie has failed to state a claim, since [t]he Fourth Amendment does not govern the provision of medical ser vices to [a pre Gerstein hearing] arrestee by a contracted medical care professional. (In the interest of clarity, we use the term arrestee to refer to a person who has not had a Gerstein hearing; we use the term pre trial detainee to refer to someone who has had a Gerstein hearing or its equiva lent.) The fact that the defendants operate under a contract with the County is immaterial here, since they concede that they provid[ed] their medical services under a government contract fulfilling a governmental function. See West v. At kins, 487 U.S. 42 (1988) (delivery of medical treatment to prisoner by part time contract physician qualifies as state action for purposes of 42 U.S.C. § 1983). The defendants real argument is that the Fourth Amendment never governs con stitutional claims alleging inadequate provision of medical care to an arrestee by a nurse or doctor, regardless of the de fendant s employment arrangement. Although the Supreme Court has provided relatively lit tle guidance regarding the constitutional rights of arrestees and pretrial detainees, see Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (noting, without deciding, the question whether Fourth Amendment protections extend through the period of pretrial detention), this court s cases foreclose the defendants argument. In Villanova v. Abrams, we held that No. 12 2709 7 the Fourth Amendment governs the period of confinement between arrest without a warrant and the [probable cause determination], 972 F.2d 792, 797 (7th Cir. 1992), and we have since applied the Fourth Amendment s objectively unreasonable standard to both conditions of confinement and medical care claims brought by arrestees who have not yet had their Gerstein hearing. See Ortiz v. City of Chicago, 656 F.3d 523 (7th Cir. 2011) (medical care); Williams v. Rodri guez, 509 F.3d 392 (7th Cir. 2007) (medical care); Sides v. City of Chicago, 496 F.3d 820 (7th Cir. 2007) (medical care); Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir. 2006) (conditions of confinement). Other courts have so ruled as well. See, e.g., Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011); Al dini v. Johnson, 609 F.3d 858, 860 (6th Cir. 2010); Pierce v. Multnomah Cnty., 76 F.3d 1032, 1043 (9th Cir. 1996); see gen erally Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. PENN. L. REV. 1009, 1013 (2013) (endorsing familiar Fourth Amendment standard of reasonableness under the circumstances [to] govern the treatment of arrestees until there has been a judicial determination of probable cause ). The defendants attempt to distinguish Ortiz, Williams, and Sides as cases involving the objectively unreasonable denial of medical care by jailers, not the objectively unrea sonable provision of medical care by doctors and nurses. A jailer might violate an arrestee s Fourth Amendment rights by unreasonably denying the arrestee access to insulin, the defendants urge, but a health care professional who unrea sonably withholds insulin does not. This argument lacks support in law or logic. [T]he State [has] a constitutional duty to provide adequate medical treatment to those in its custody, and constitutional claims 8 No. 12 2709 may be brought against medical care providers, regardless of the precise terms of [their] employment, when they voluntarily assume[] that obligation by contract. West, 487 U.S. at 55 56. This basic principle, first announced in the Eighth Amendment context, applies with equal force to claims brought by pre trial detainees who have had a proba ble cause hearing, see, e.g., King v. Kramer, 680 F.3d 1013 (7th Cir. 2012) (Fourteenth Amendment claim against nurses em ployed by Health Professionals, Ltd.), and to constitutional claims brought by arrestees who have not yet had a probable cause hearing. True, the named defendants in our earlier Fourth Amendment medical care cases were lockup keep ers (Ortiz and Williams) and police detectives (Lopez), but from the perspective of the arrestee, it matters not a whit whether it is the jailer or the doctor whose conduct deprives him of life saving medical care. This is why our Fourth Amendment cases speak broadly of claims involving the provision of medical care, Ortiz, 656 F.3d at 538, not simply the denial of medical care by a jailer (as the defendants would have it). The defendants counter that we should recognize a special carve out for doctors and nurses because the Fourth Amendment s objectively unreasonable standard resembles the standard for the common law tort of negligence, and Section 1983 is not intended for negligence. But the implicit premise behind that description of Section 1983 is that the constitutional provision at issue is the Fourteenth Amendment or the Eighth Amendment. We have no quarrel with the proposition that a prison inmate s complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth No. 12 2709 9 Amendment, Estelle v. Gamble, 429 U.S. 97, 106 (1976). But different constitutional provisions, and thus different standards, govern depending on the relationship between the state and the person in the state s custody. See Graham v. Connor, 490 U.S. 386, 394 95 & n.10 (1989); Belbachir v. County of McHenry, No. 13 1002, slip op. at 4 7 (7th Cir. Aug. 12, 2013) (discussing constitutional standards in civil commitment, immigration, and criminal contexts). During the (ordinarily brief) time between a warrantless arrest and a judicial determination of probable cause, before the state s interest in continued detention has been estab lished, greater solicitude to presumptively innocent arrestees is warranted. Indeed, this concern prompted Justice Scalia to dissent in Riverside, because he thought that 48 hours was too long to satisfy the requirement of a prompt hearing a requirement, he pointed out, that had as its primary benefi ciaries the innocent ¦ those so blameless that there was not even good reason to arrest them. 500 U.S. at 71 (Scalia, J., dissenting). The Riverside majority was also concerned about the problem of prolonged detention based on incorrect or unfounded suspicion. 500 U.S. at 52. (Okoro, unfortunately, was experiencing prolonged detention, and no one will ever know if the suspicion that led to his arrest was well founded.) The relevant legal standard for arrestees who have been seized but who have not yet had their probable cause hearing, we conclude, comes from the Fourth Amendment, not the Fourteenth, and certainly not the Eighth. The issue is whether the state actor s response to [the arrestee] s medi cal needs was objectively unreasonable and caused the harm of which [the arrestee] complains. Ortiz, 656 F.3d at 530 (discussing factors that inform Fourth Amendment analysis). If jail officials fear that this framework might im 10 No. 12 2709 pose too onerous a burden on them or their agents, there is an obvious solution: the responsible officials can ensure that arrestees receive a prompt determination of probable cause, as the Fourth Amendment already requires. See Cnty. of Riv erside, 500 U.S. at 56; see also Struve, The Conditions of Pretrial Detention, supra, 161 U. PENN. L. REV. at 1013. IV The defendants next argue that even if their conduct violated Okoro s Fourth Amendment rights, qualified immunity is proper because no previous decision applied the Fourth Amendment to analyze the reasonableness of health care provided by contracted medical professionals to arrestees being held by the police in jail. If there is any lack of clarity in our previous cases, how ever, it is only with respect to the threshold issue whether the defense of qualified immunity is ever available to private medical care providers like the defendants. See Sain v. Wood, 512 F.3d 886 (7th Cir. 2008) (assuming, for the purposes of this case only, that prison doctor may be entitled to assert qualified immunity). This ambiguity is of no help to the de fendants: if private medical care professionals are categori cally barred from claiming immunity, like guards employed by a privately run prison facility, Richardson v. McKnight, 521 U.S. 399 (1997), it is unnecessary to consider whether the de fense may be invoked by Chhabra and Reynolds on these particular facts. The Supreme Court recently considered the question whether an individual hired by the government to do its work is prohibited from seeking [absolute or qualified] im munity, solely because he works for the government on No. 12 2709 11 something other than a permanent or full time basis. Filarsky v. Delia, 132 S. Ct. 1657, 1660 (2012). It held that immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full time employee, or on some other basis. Id. at 1665. On the other hand, the Filarsky Court reaffirmed the holding of Richardson categorically rejecting immunity for the private prison employees there; in so doing, the Court emphasized that the incentives of the private market suffice to protect employees when a private firm, systematically organized to assume a major lengthy administrative task ... for profit and potentially in competition with other firms, assumes re sponsibility for managing an institution. 132 S.Ct. at 1667 (quoting Richardson, 521 U.S. at 413). In a detailed opinion tracking the Court s analysis in Filarsky, the Sixth Circuit recently held that a doctor provid ing psychiatric services to inmates at a state prison is not en titled to assert qualified immunity. McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) (discussing the historical roots of immunity for similarly situated parties and the history and purpose of § 1983); see also Hasher v. Hayman, 2013 WL 1288205 (D.N.J. Mar. 27, 2013) (private medical employees failed to establish that they are entitled to assert a qualified immunity defense, even after Filarsky ). We find the Sixth Circuit s reasoning persuasive, though we need not defini tively decide the issue today; even if our defendants were entitled to seek qualified immunity as a general matter, we would conclude that the defense is not applicable here. The contours of Okoro s Fourth Amendment rights were sufficiently clear that a reasonable official would under stand that what he is doing violates that right throughout 12 No. 12 2709 the period of Okoro s detention. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Chhabra and Reynolds urge otherwise, based only on the argument that our previous Fourth Amendment medical care cases spoke only of officers (and not medical care providers ). That is too slender a reed for us, particularly since officials can be on notice that their conduct violates established law even in the absence of earlier cases involving fundamentally similar [or] materi ally similar facts. Hope v. Pelzer, 536 U.S. 730, 741 (2002). As we already have explained, nothing in our opinions hints at some special Fourth Amendment exemption for health care professionals; we discussed wrongdoing by officers and lockup keepers because those were the positions the de fendants held. Indeed, we rejected an argument much like Chhabra and Reynolds in Ortiz, where the defendants urged that in 2004 (the time of the alleged wrongdoing in that case) no decision had applied the Fourth Amendment to analyze the reasonableness of the provision of medical care to arrestees. 656 F.3d at 538. We acknowledged that this was probably true, since Williams and Sides were not de cided until three years later, but even then we rejected the defense. It was quite clear in 2004, we said, that the Fourth Amendment protects a person s rights until she has had a probable cause hearing. Id. It was no less clear in De cember 2008, when Okoro collapsed in his cell, that the same Fourth Amendment standard applies to the wrongdoing al leged here. Finally, the defendants suggest they are entitled to quali fied immunity because [t]here is nothing indicating that [Chhabra and Reynolds] had any understanding of the de cedent s status, and thus, they had no way of knowing that the Fourth Amendment, rather than some more forgiving No. 12 2709 13 constitutional provision, would govern this particular ar restee s medical care. This argument is not altogether frivo lous, since qualified immunity may apply to some mistakes of fact, see Pearson v. Callahan, 129 S. Ct. 808, 815 (2009), but it cannot prevail here. It assumes that health care providers calibrate the level of medical care they provide to a jail in mate based on their assessment of the inmate s legal status, taking advantage of the right to be sloppy where the stand ard is lower. We sincerely hope that this is not how Chhabra, Reynolds, and Health Professionals, Ltd. go about caring for those in the State s custody. Indulging the possibility that the defendants really do undertake such a crass triage, however, we would expect them to exercise particular care in sorting the jail s residents into the proper constitutional camps, par ticularly after our 2007 decisions in Williams and Sides. See Crowder v. Lash, 687 F.2d 996, 1007 (7th Cir. 1982) ( A rea sonably competent public official is expected to know the law governing his conduct. ). If the defendants truly tailor their care (or lack thereof) in this fashion, then their failure to ascertain Okoro s correct status cannot be characterized as a reasonable mistake, and their qualified immunity claim still fails. Saucier, 533 U.S. at 205 ( The concern of the im munity inquiry is to acknowledge that reasonable mistakes can be made ¦ . ) (emphasis added). Moreover, as we already indicated at the outset, we do not consider any argument based on the Fourteenth Amendment to be forfeited. This record easily supports a finding of deliberate indifference to Okoro s serious medical condition. In short, these defendants had no reason to think that their actions would be measured by anything less than the Fourteenth Amendment s standard, which has applied to pretrial detainees for decades. 14 No. 12 2709 V We AFFIRM the order of the district court denying quali fied immunity to Chhabra and Reynolds and REMAND for further proceedings consistent with this opinion.

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