Alfredo Miranda v. County of Lake , 900 F.3d 335 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1603
ALFREDO MIRANDA, Administrator of Estate of Lyvita Gomes,
Plaintiff-Appellant,
v.
COUNTY OF LAKE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 4439 — Sharon Johnson Coleman, Judge.
____________________
ARGUED DECEMBER 6, 2017 — DECIDED AUGUST 10, 2018
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
WOOD, Chief Judge. In the fall of 2011, Lyvita Gomes failed
to show up for jury duty. This minor infraction triggered a
series of events that led to her untimely death in the early days
of 2012. She wound up in the county jail, where she refused
to eat and drink. The medical providers who worked at the
Jail did little other than monitoring as she wasted away in her
2 No. 17-1603
cell. By the time she was sent to the hospital, it was too late to
save her.
Alfredo Miranda, the administrator of Gomes’s estate,
brought an action under 42 U.S.C. § 1983 and assorted state-
law theories against Lake County, the Jail officials (the
“County defendants”), and Correct Care Solutions (CCS, the
Jail’s contract medical provider) and its employees (the “med-
ical defendants”). The district court dismissed the County de-
fendants at summary judgment. The medical defendants pro-
ceeded to trial, but halfway through the proceeding the court
granted judgment as a matter of law under Federal Rule of
Civil Procedure 50(a) for them on some claims. The Estate pre-
vailed to a modest degree on another claim, and part of the
case resulted in a mistrial. Our principal ruling in response to
the Estate’s appeal is that the Rule 50(a) judgment was prem-
ature, and so further proceedings are necessary.
I
A
On October 12, 2011, an officer arrested Gomes, a 52-year-
old Indian national, for failing to appear for jury duty. (In
hindsight, this was the County’s first misstep: as a non-citi-
zen, Gomes was categorically ineligible to serve as a juror.
705 ILCS 305/2(a)(4).) Gomes pulled away from the officer as
he attempted to arrest her. That action earned her a second
charge of resisting arrest. The officers took Gomes to
Lake County Jail, where she made statements that landed her
on suicide watch the next day. But she did not stay at the Jail
long. On October 14, Gomes was transferred to the custody of
the federal Immigration and Customs Enforcement (ICE) ser-
vice, which released her within a few days.
No. 17-1603 3
Roughly two months later, on December 14, after failing
to appear in court on the resisting-arrest charge, Gomes found
herself back in the Lake County Jail. Though officials initially
placed her in the general population, it quickly became appar-
ent that her physical and mental health were deteriorating,
and so she was moved.
On December 16, CCS’s Director of Mental Health,
Jennifer Bibbiano (a social worker), performed a mental
health evaluation on Gomes. Bibbiano documented that
Gomes had ingested no food or water since arriving at the Jail
two days earlier. As a result, Gomes was transferred the next
day to the Jail’s medical pod for closer monitoring. On
December 18, staff placed Gomes on suicide watch and the
hunger strike protocol. At that point, after she had gone four
days without food or water, staff weighed her for the first time
and recorded a weight of 146 pounds. Over the next ten days,
this number plummeted; by December 28, Gomes weighed
only 128 pounds.
During this period, social workers and physicians contin-
ued to assess Gomes daily. Defendant Dr. Rozel Elazegui, an
internist, saw Gomes on December 22 and 27. In several pro-
gress notes, the CCS staff reported various symptoms of de-
hydration, such as skin tenting. Gomes’s refusal to eat or
drink and her unresponsiveness often prevented the medical
staff from recording her vital signs and collecting any blood
or urine samples. For most of this time, Gomes lay in bed and
refused to speak.
As Gomes’s physical condition worsened, concerns about
her mental state grew. When Gomes appeared in court on De-
cember 20, the judge ordered a mental fitness examination.
On December 22, Gomes was identified as needing an urgent
4 No. 17-1603
psychiatric visit. That prompted a visit two days later from
psychiatrist Hargurmukh Singh, who first met Gomes then
and diagnosed her with a “psychotic disorder not otherwise
specified.” He prescribed no medication. After seeing Gomes
again on December 27, Dr. Singh concluded that her psycho-
sis rendered her unable to understand the risks of not eating
and unable to participate in her treatment plan. But his only
advice to Dr. Elazegui, who wanted to perform an involun-
tary blood draw for monitoring purposes, was that Elazegui
could do so if push came to shove.
Around this time the officials in charge of Lake County Jail
entered the picture. On December 26, Wayne Hunter, the Jail’s
acting chief, was first notified by email that Gomes was in the
Jail and was refusing medical treatment and tests. Hunter re-
ceived assurances that CCS staff were monitoring Gomes’s
condition and that they would provide him with any updates.
Two days later, Hunter personally went down to Gomes’s cell
in a futile attempt to persuade her to eat. On December 27,
Scott Fitch, the liaison between the correctional and medical
staff, learned about Gomes. He too asked for updates. Fitch
called Gomes’s public defender, entreating her to visit and en-
courage her client to eat. Sheriff Mark Curran did not hear
about Gomes until December 29, the day she left the Jail. That
same day, Jail officials went to court to get Gomes formally
released from custody.
Also on December 29, Dr. Young Kim, another CCS intern-
ist, returned to work from a vacation. Dr. Kim was surprised
to learn that Gomes had remained in the Jail while continuing
to refuse all food and drink. (A few stray comments in
Gomes’s medical records suggest that she may have rubbed
water on her body and perhaps taken a few sips of water from
No. 17-1603 5
her sink. But the record as a whole implies little to no water
intake.) Dr. Kim immediately called an ambulance to take
Gomes to the hospital for evaluation and treatment of her de-
hydration and psychosis. Unfortunately, this intervention
came too late. On January 3, 2012, five days after arriving at
the hospital, Gomes died. The autopsy opined that she died
of “Complications of Starvation and Dehydration.” The man-
ner of death was suicide.
B
The Estate filed this action against Lake County,
Sheriff Curran, Hunter, Fitch, CCS, Dr. Elazegui, Dr. Singh,
Bibbiano, and two more social workers, Ruth Muuru and
Edith Jones. It raised due process claims under 42 U.S.C.
§ 1983, state statutory and common law tort claims, violations
of international treaty obligations, and claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Only
the claims against the medical defendants went to trial.
But the jury never had the opportunity to resolve some of
those claims. At the close of the Estate’s presentation of evi-
dence, the court entered judgment as a matter of law under
Rule 50(a) for social workers Muuru and Jones on all claims
against them. The court also concluded that the Estate had
failed to present enough evidence to reach the jury on the
question whether the medical defendants caused Gomes’s
death; it therefore granted them judgment as a matter of law
on that part of the case. The only question remaining for the
jury was the Estate’s due process claim for inadequate medi-
cal care, limited to the pain and suffering Gomes experienced
while in the Jail. The jury failed to reach a unanimous verdict
regarding the conduct of Dr. Elazegui and Dr. Singh but it
held social worker Bibbiano liable. It awarded the Estate
6 No. 17-1603
$119,000 in compensatory damages, which Bibbiano has paid
in full.
The Estate does not challenge the jury verdict, but it takes
issue with four aspects of the proceedings below: first, the dis-
trict court’s dismissal of the County defendants; second, the
judgment as a matter of law on causation of death; third, the
court’s ruling barring the Estate from pursuing one of its the-
ories of recovery under the Due Process Clause; and fourth,
the court’s instruction on the applicable legal standard. While
we find no merit in its first point, we conclude on the latter
three that the Estate is entitled to the opportunity to try its full
case against the medical defendants before a jury.
II
A
We start with the Estate’s attempt to revive some of the
claims against the County defendants. It first challenges the
district court’s conclusion that the Jail’s chief, Hunter, and li-
aison, Fitch, were not deliberately indifferent to Gomes’s in-
adequate medical care in violation of her due process rights.
We need not delve into the nuances of the standard for such a
claim, because the Estate faces an insurmountable hurdle in-
dependent of that standard. We have long recognized the fact
that correctional institutions (like most entities in a modern
economy) engage in the division of labor. See Greeno v. Daley,
414 F.3d 645, 656 (7th Cir. 2005) (citation omitted). When de-
tainees are under the care of medical experts, non-medical jail
staff may generally trust the professionals to provide appro-
priate medical attention. E.g., Rice ex rel. Rice v. Corr. Med.
Servs., 675 F.3d 650, 676, 678–79 (7th Cir. 2012); see also Rasho
No. 17-1603 7
v. Elyea, 856 F.3d 469, 478–79 (7th Cir. 2017) (holding that med-
ical professionals were not liable when sued in their capacity
as “prison administrators and policymakers, not treaters”).
We will not find a jail official to have acted with deliberate
indifference if she reasonably relied on the judgment of med-
ical personnel. E.g., Greeno, 414 F.3d at 655–56; Estate of Perry
v. Wenzel, 872 F.3d 439, 458–59 (7th Cir. 2017). On the other
hand, if jail officials had reason to know that their medical
staff were failing to treat or inadequately treating an inmate,
liability is possible. King v. Kramer, 680 F.3d 1013, 1018 (7th
Cir. 2012); Rice, 675 F.3d at 676.
Nothing in this record justifies a finding of personal liabil-
ity against the County defendants. Hunter and Fitch received
assurances that CCS staff were regularly monitoring Gomes.
They requested periodic updates on her condition. The med-
ical providers informed Hunter and Fitch that Gomes was sta-
ble and promised to send her to the hospital if necessary.
Knowing that the CCS employees were on the case, Hunter
and Fitch were entitled to rely on their professional judg-
ments. See Arnett v. Webster, 658 F.3d 742, 756 (7th Cir. 2011)
(“This is not a case where [the plaintiff] was being completely
ignored by medical staff.”). The fact that they expressed con-
cern about Gomes’s condition and tried directly and indi-
rectly to get her to eat does not make them culpable.
Because we find that Fitch and Hunter’s reasonable reli-
ance on their medical providers shields them from liability
under section 1983, we need not consider the County defend-
ants’ alternative arguments for dismissal.
8 No. 17-1603
B
While the Estate has apparently abandoned its claim that
Sheriff Curran is individually liable for Gomes’s inadequate
medical care, it is still trying to pursue an official-capacity
claim about the Jail’s allegedly deficient hunger-strike policy.
As an Illinois sheriff, Curran has final policymaking authority
over jail operations. DeGenova v. Sheriff of DuPage Cnty.,
209 F.3d 973, 976 (7th Cir. 2000). He is thus a proper party for
a claim under Monell v. Department of Social Services of
New York, 436 U.S. 658, 690–91 (1978), targeted at policies and
customs that deprive inmates of their federal rights. Id. Monell
liability is possible even if no individual official is found de-
liberately indifferent. Glisson v. Ind. Dep’t of Corr., 849 F.3d 372,
379 (7th Cir. 2017) (en banc).
The focus of the Estate’s Monell claim is Lake County Jail’s
hunger-strike policy. That policy required four things: (1) the
immediate notification of medical staff when an inmate be-
gins a hunger strike; (2) documentation of meal refusals and
immediate notification of a command officer after an inmate’s
third consecutive meal refusal; (3) the command’s investiga-
tion and communication with medical staff as needed; and
(4) a conference including the health services administrator
and the chief or deputy chief of corrections about the best
course of action. The Estate finds the policy lacking in some
respects, including the timing of notification and consulta-
tion, follow-up procedures if the hunger strike continues,
methods to review past suicidality, and guidance on what to
look for and how to document an inmate’s condition on sui-
cide watch.
The Estate’s concerns may be valid, but it has not shown
that the Sheriff was deliberately indifferent in enacting this
No. 17-1603 9
policy. Though hunger strikes may be common in jails, as
amici suggest, Gomes went longer without food and water
than anyone else in the Jail’s experience. This does not give
the Sheriff a free pass, since a single incident can be enough
for liability where a constitutional violation was highly fore-
seeable. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917,
929 (7th Cir. 2004) (rejecting the notion of a “‘one free suicide’
pass”). But this is not a case in which the Jail knew that hunger
strikes were a risk yet did nothing. It had a system in place,
and that system included a series of reasonable measures.
The Estate presented no evidence that would allow a trier
of fact to conclude that some feature in the Jail’s policy caused
Gomes’s death. Once Jail staff learned about her refusal to eat
or drink, they stayed in regular communication with CCS’s
medical personnel. See Belbachir v. Cnty. of McHenry, 726 F.3d
975, 983 (7th Cir. 2013). It is unclear whether anyone con-
nected the dots between Gomes’s suicidal statements in Octo-
ber and her condition in December, but that is irrelevant be-
cause staff identified Gomes as actively suicidal almost from
the start of her second detention. There is no reason to think
that additional guidance in the hunger-strike policy would
have made a difference in Gomes’s deterioration. Summary
judgment was appropriate on this Monell claim.
C
We can be brief with the Estate’s complaint that the
County defendants failed to comply with their international
treaty obligations. Article 36 of the Vienna Convention guar-
antees a foreign national the right to have her home country’s
consular office notified when she is detained. Vienna Conven-
tion on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77;
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
10 No. 17-1603
When Gomes, an Indian national, was detained in October,
ICE officials informed her of her Article 36 rights. No one re-
peated this advice when Gomes was taken back into custody
in December. Still, we think summary judgment is appropri-
ate, though for reasons different from those mentioned by the
district court.
The district court was concerned that the Estate failed to
mention section 1983 when raising this claim, see Jogi v. Voges,
480 F.3d 822, 825 (7th Cir. 2007) (Jogi II), but “complaints need
not plead legal theories,” and so that alone does not support
dismissal, see id. at 826. Another strike against the Estate, ac-
cording to the district court, was the lack of evidence connect-
ing Gomes’s death with the failure to notify. Indeed, when
given the opportunity to speak with the Indian consulate in
October, Gomes chose not to do so. Nonetheless, we have yet
to explore the question whether a plaintiff is required to show
actual harm in order to recover for an Article 36 violation, or
if this is more in the nature of a failure to receive required Mi-
randa warnings.
We need not wrestle with that issue now, however, be-
cause our case is easily resolved on the more straightforward
ground of qualified immunity. The County officials are im-
mune from suit if it was not clearly established in 2011 that
their conduct violated the Vienna Convention. See Pearson v.
Callahan, 555 U.S. 223, 245 (2009). Article 36 charges “compe-
tent authorities” with notifying foreign nationals. The term
“competent authorities” includes booking officers. Mordi v.
Zeigler, 770 F.3d 1161, 1166–1167 (7th Cir. 2014). Consistent
with this precedent, the Jail’s written policy places the notifi-
cation obligation exclusively with booking officers. But the
Estate did not sue the officer who booked Gomes. And, as we
No. 17-1603 11
acknowledged in 2014, the boundaries of who else might
qualify as a competent authority have “yet to be fixed.” Mordi,
770 F.3d at 1167. Because it was not clearly established who,
beyond the booking officer, had a duty to inform Gomes of
her consular rights, the County defendants are entitled to
qualified immunity.
D
The Estate also seeks to reinstate a Monell claim based on
the County’s alleged failure to train Jail staff to notify detain-
ees of their consular rights. A failure-to-train claim is actiona-
ble only if the failure amounted to deliberate indifference to
the rights of others. City of Canton v. Harris, 489 U.S. 378, 388
(1989). Deliberate indifference exists where the defendant
(1) failed “to provide adequate training in light of foreseeable
consequences”; or (2) failed “to act in response to repeated
complaints of constitutional violations by its officers.” Sorn-
berger v. City of Knoxville, 434 F.3d 1006, 1029–30 (7th Cir.
2006). In essence, the defendant must have actual or construc-
tive notice of a problem. See Robles v. City of Fort Wayne, 113
F.3d 732, 735 (7th Cir. 1997).
Here, Sheriff Curran had neither. The Estate points to no
evidence indicating that detainees repeatedly complained
about the absence of consular notification. The parties try to
paint the problem as rampant or nonexistent, but the record
does not support either extreme.
Sheriff Curran did not fail to act in the face of foreseeable
violations. Lake County Jail has had a policy about consular
notification since at least October 2005. In addition to requir-
ing booking officers to inform detainees, the policy specified
that all officers who work at the booking desk “shall receive
12 No. 17-1603
appropriate training,” including a video, handouts, and a
training session. Sheriff Curran testified that he knew about
this policy and was never notified that it was not being fol-
lowed. Thus, at most, Sheriff Curran was negligent in failing
to ensure that the Jail’s training protocol was being imple-
mented. This is not enough to establish that he was deliber-
ately indifferent to detainees’ rights. See Rice, 675 F.3d at 675(requiring that “the failure to train reflect[] a conscious choice
among alternatives”). The Sheriff did not display deliberate
indifference, and so we need not consider the County defend-
ants’ alternative arguments.
III
We turn now to the Estate’s claims against Drs. Elazegui
and Singh, which the district court partially blocked on the
ground that there was not enough evidence of causation to
reach the jury. Though the Estate assigns error to the court’s
ruling on a motion in limine and its jury instruction, we need
reach these decisions only if we reverse on causation. This is
because neither ruling prejudiced the Estate on the claim that
did go to the jury. Under the single recovery rule, defendants
are jointly and severally liable for the full amount of compen-
satory damages that result from an indivisible harm; a plain-
tiff can recover only once for those damages. Janusz v. City of
Chi., 832 F.3d 770, 774, 777 (7th Cir. 2016); Minix v. Canarecci,
597 F.3d 824, 829–30 (7th Cir. 2010). The Estate has already
been fully compensated for Gomes’s suffering at the Jail, since
Bibbiano paid the assessed $119,000. It has not, however, re-
ceived any compensation for Gomes’s death. We thus turn to
the question whether that issue too should have gone to the
jury.
No. 17-1603 13
A
The court granted judgment as a matter of law on the Es-
tate’s constitutional and state-law wrongful death claims
against Drs. Elazegui and Singh because it thought that no ra-
tional jury could conclude that their actions caused Gomes’s
death. It identified two evidentiary gaps: first, the lack of ex-
pert testimony explaining what the notation of “Complica-
tions of Starvation and Dehydration” in the autopsy report
meant and how those complications related to Gomes’s death;
and second, the lack of expert testimony about what took
place during the five days between Gomes’s transfer to the
hospital and her death. We consider this decision de novo.
Holder v. Ill. Dep’t of Corr., 751 F.3d 486, 490 (7th Cir. 2014).
We start with the Estate’s claim under the Fourteenth
Amendment’s Due Process clause for inadequate medical
care.1 Although Dr. Elazegui and Dr. Singh were employed by
a private company that contracted with Lake County to pro-
vide detainees’ medical care, they are considered state actors
amenable to suit under section 1983. West v. Atkins, 487 U.S.
42, 54–56 (1988). They are not, however, entitled to qualified
immunity. Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016)
(en banc). Moreover, they concede both that Gomes’s medical
condition was objectively serious and that the evidence would
have permitted the jury to conclude the doctors acted with
1 We do so because this was the claim that supports the district court’s
subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343; the Estate
relied on the court’s supplemental jurisdiction, 28 U.S.C. § 1367, for its
state-law theories. It is possible that the alienage branch of diversity juris-
diction may also have existed, see 28 U.S.C. § 1332(a)(2), but this was not
explored.
14 No. 17-1603
deliberate indifference. Our focus is thus exclusively on cau-
sation.
To recover on its due process claim, the Estate had to pre-
sent “‘verifying medical evidence’ that the delay” in medical
care “caused some degree of harm.” Williams v. Liefer, 491 F.3d
710, 715 (7th Cir. 2007) (citation omitted). It did not, however,
bear the burden of proving that but for the medical defend-
ants’ inaction, Gomes would definitely have lived. It would
have been enough for the Estate to show that the resulting
harm was a diminished chance of survival. See Murrey v.
United States, 73 F.3d 1448, 1453–54 (7th Cir. 1996); Holton v.
Mem’l Hosp., 176 Ill. 2d 95, 119 (1997) (recognizing the lost
chance doctrine in Illinois). While expert testimony could be
used as “verifying medical evidence,” medical records alone
could suffice. Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.
2008); Williams, 491 F.3d at 715.
The record contains ample evidence from which a jury
could infer that Drs. Elazegui and Singh’s inaction dimin-
ished Gomes’s chances of survival. First, it shows that she
died from starvation and dehydration. Under Illinois law, au-
topsy reports are prima facie evidence of their findings and
conclusions, including cause of death. 725 ILCS 5/115-5.1. The
report here did not mince words about Gomes’s cause of
death—“Complications of Starvation and Dehydration”—or
her manner of death—“suicide.” The coroner implicitly ruled
out the possibility that Gomes died from any hospital-based
illnesses or other causes. The report is clear: not eating or
drinking caused her death. (Hospital records underscore this
conclusion. On the day she arrived at the hospital, Gomes was
already experiencing acute liver and renal failure. For present
purposes, however, we disregard these records, because they
No. 17-1603 15
were excluded from trial at the request of the medical defend-
ants, and the Estate has not challenged that exclusion on ap-
peal.)
Moreover, the Estate’s expert witnesses testified that the
doctors’ failure to transfer Gomes to the hospital sooner al-
lowed her deterioration to reach a dangerous point. Psychia-
try expert Dr. James Gilligan repeatedly testified that
Dr. Singh contributed to Gomes’s death by failing to initiate
her transfer from the Jail to the hospital. Furthermore,
Dr. Singh (a psychiatrist, recall) knew that Gomes was clini-
cally incompetent, but he took no steps to treat her even
though she was endangering her life. Dr. Gilligan concluded
that Dr. Singh’s “failure to act … contributed to [Gomes’s]
death.” Internal medicine expert Dr. Jack Raba testified that
Gomes’s pulse on December 25 was an “ominous sign,” rais-
ing the possibility of cardiovascular problems, electrolyte or
metabolic imbalances, or renal failure. He added that Gomes’s
blood pressure clearly indicated dehydration. Dr. Raba said it
was “impossible” not to consider that Gomes was starting to
show signs of organ failure. These “absolute signs” signaled
that Gomes urgently needed to be admitted to a hospital for
bloodwork and possibly forced feeding and medication.
Dr. Raba concluded that Dr. Elazegui’s failure to intervene
“contributed to [Gomes’s] ultimate demise and death.”
The prison doctors’ testimony lent support to Dr. Raba’s
expert opinion on causation. When Dr. Elazegui spoke with
Gomes on December 22, he informed her that starvation
risked organ failure and death. He asked to be informed when
her weight loss hit 18%, since that number indicates an in-
creased risk of organ failure. Dr. Kim’s testimony was also rel-
16 No. 17-1603
evant to the causation question. When he returned from vaca-
tion, he was concerned that Gomes could go into respiratory
failure or cardiac arrest at any minute (and unlike the others,
he promptly acted on this concern).
Taken together, this evidence was enough to support an
inference on the jury’s part that the delay in sending Gomes
to the hospital resulted in her death, or at least lessened her
chance of survival.
Our analysis applies with equal force to the Estate’s state
malpractice claims. See 740 ILCS 180/1. Under this theory, the
Estate had to show that the physicians’ negligent failure to
comply with the standard of care proximately caused
Gomes’s injury. See Sullivan v. Edward Hosp., 209 Ill. 2d 100,
112 (2004). In Illinois, proximate cause “must be established
by expert testimony to a reasonable degree of medical cer-
tainty.” Morisch v. United States, 653 F.3d 522, 531 (7th Cir.
2011) (citation omitted). An expert’s opinion on the connec-
tion between a delay in treatment and injury must be factually
supported in order to be submitted to the jury. Wiedenbeck v.
Searle, 385 Ill. App. 3d 289, 293–94 (2008).
The proximate-cause inquiry encompasses both cause-in-
fact and legal cause. Palay v. United States, 349 F.3d 418, 432
(7th Cir. 2003). For there to be legal cause, a reasonable person
must have been able to foresee that the plaintiff’s injury
would result from his conduct. Id. For cause-in-fact, the plain-
tiff must show that but for the defendant’s conduct, the injury
would not have occurred. Id. Again, the injury can be the de-
cedent’s lost chance at survival. Holton, 176 Ill. 2d at 119.
A jury would have been permitted to find legal cause here.
By their own admission, Drs. Elazegui and Singh knew that if
No. 17-1603 17
Gomes continued to refuse food and fluids, she could die.
They warned her as much. The record also contained support
for cause-in-fact. The experts opined that the medical defend-
ants’ inaction contributed to Gomes’s death. This was not im-
permissibly conclusory for an expert opinion. See FED. R.
EVID. 705; see also Wilson v. Clark, 84 Ill. 2d 186, 196 (1981)
(adopting Federal Rule of Evidence 705 for Illinois). The med-
ical defendants are right that an expert’s testimony in a mal-
practice case cannot be based on “sheer, unsubstantiated
speculation.” Wiedenbeck, 385 Ill. App. 3d at 293. But the opin-
ions here suffered from no such flaw, and the defendants
were free to cross-examine the experts about what led them
to draw their conclusions. Wilson, 84 Ill. 2d at 194. Based on
Drs. Raba and Gilligan’s expert testimony, a jury could have
found that the defendants’ inaction more likely than not con-
tributed to Gomes’s decreased chance of survival and her ul-
timate death. The Estate is entitled to a new trial in which it
can present these arguments to a jury.
B
Since the Estate is entitled to a new trial against the medi-
cal defendants, we will also say a few words about its chal-
lenge to the district court’s decision to bar all reference to the
theory that the medical defendants violated the Due Process
Clause by failing to protect Gomes from harming herself. Our
review is for abuse of discretion. Perry v. City of Chi., 733 F.3d
248, 252 (7th Cir. 2013).2
2 Once again, it is worth recalling that a person may recover only once
for a given set of injuries. At this stage, however, no one has had any oc-
casion to consider whether state law and federal law overlap so much that
the elements supporting each theory are the same, or that full relief could
18 No. 17-1603
The Supreme Court has declared that “competent per-
sons” have a due-process “right to refuse lifesaving hydration
and nutrition.” Washington v. Glucksberg, 521 U.S. 702, 723
(1997) (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,
279 (1990)). But this right does not extend to incarcerated per-
sons who have been deemed incompetent. Freeman v. Berge,
441 F.3d 543, 546 (7th Cir. 2006). For these detainees, jails have
a duty “to prevent the prisoner from giving way” to the “un-
usual psychological strain” caused by incarceration. Id. at 547.
We repeatedly have recognized a jail or prison official’s
failure to protect an inmate from self-harm as one way of es-
tablishing deliberate indifference to a serious medical need.
E.g., Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989–
90 (7th Cir. 2012); Collins v. Seeman, 462 F.3d 757, 760–61 (7th
Cir. 2006). The obligation to intervene covers self-destructive
behaviors up to and including suicide. Rice, 675 F.3d at 665;
Cavalieri v. Shepard, 321 F.3d 616, 620–22 (7th Cir. 2003). The
duty applies “when suicide takes the form of starving oneself
to death.” Freeman, 441 F.3d at 547; accord Rodriguez v. Briley,
403 F.3d 952, 953 (7th Cir. 2005).
In barring this theory, the court reasoned that the Estate
had not presented evidence that Gomes’s suicidal ideation
and mental illness were “so acute” that the defendants should
have known about them and protected her from herself. See
Seventh Circuit Pattern Civil Jury Instruction 7.19 (rev. 2017)
(an element of a failure-to-protect-from-self-harm claim is
that the defendant was aware or strongly suspected a strong
likelihood of serious self-harm). The court attached particular
be recovered under either. Reconciliation of those theories is something
better done by the district court on remand.
No. 17-1603 19
weight to testimony from Gomes’s family members and the
administrator that she was a devout Catholic who had no his-
tory of mental illness and would not have committed suicide.
In the past, we have taken into account jail officials’
knowledge of a decedent’s mental health history or warnings
from family members, as that information pertains to the de-
fendants’ subjective awareness of a problem. E.g., Payne for
Hicks v. Churchich, 161 F.3d 1030, 1042 (7th Cir. 1998). But that
is not the use to which the court put the testimony of Gomes’s
family. It jumped from the fact that Gomes was a Catholic to
an assumption that the defendants were aware of her reli-
gious affiliation, but there is no evidence that they knew any
such thing. Furthermore, mental illness and suicide regretta-
bly afflict devout members of all religious groups. While a
jury could consider testimony from Gomes’s family when as-
sessing this theory of recovery, it was not the court’s role to
accept the family opinion as an undisputed fact.
And in any event, the trial record was filled with evidence
supporting a finding that the medical defendants knew that
Gomes was at great risk of death by starvation and dehydra-
tion, and that she was unable to think rationally. On Decem-
ber 27, Dr. Singh deemed her not competent and concluded
that she did not understand the risks of refusing to eat. Before
then, CCS staff documented Gomes’s suicidal ideation and
placed her on suicide watch. Dr. Elazegui had warned Gomes
that if she continued to refuse nutrition, she could die. The
defendants’ records reveal that they were aware that Gomes
was at serious risk of causing her own death. The district court
abused its discretion by prohibiting the Estate from pursuing
this line of argument. At the next trial, the Estate must be al-
lowed to argue this theory of recovery to the jury.
20 No. 17-1603
C
Finally, we consider whether the district court properly in-
structed the jury on intent. We evaluate the jury instructions
anew when deciding if they accurately state the law. Sanchez
v. City of Chi., 880 F.3d 349, 355 (7th Cir. 2018).
The Supreme Court first recognized an incarcerated per-
son’s right to receive adequate medical treatment in Estelle v.
Gamble, 429 U.S. 97 (1976), which concerned a convicted pris-
oner. In that case, the Court concluded that deliberate indif-
ference to a prisoner’s serious medical need violates the
Eighth Amendment’s protection against cruel and unusual
punishment. Id. at 104–05. The “deliberate indifference”
standard requires a showing that the defendant had a “suffi-
ciently culpable state of mind” and asks whether the official
actually believed there was a significant risk of harm. Pittman
ex rel. Hamilton v. Cnty. of Madison, 746 F.3d 766, 775–76 (7th
Cir. 2014).
This subjective standard is closely linked to the language
of the Eighth Amendment, which prohibits the infliction of
“cruel and unusual punishments.” The Supreme Court has in-
terpreted this to ban only the “unnecessary and wanton inflic-
tion of pain.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The
Court has applied the deliberate-indifference standard not
just to medical-care problems, but also to other types of
claims. See Farmer, 511 U.S. at 837 (failure-to-protect); Wilson
v. Seiter, 501 U.S. 294, 303 (1991) (conditions of confinement).
Pretrial detainees stand in a different position: they have
not been convicted of anything, and they are still entitled to
the constitutional presumption of innocence. Thus, the pun-
No. 17-1603 21
ishment model is inappropriate for them. Kingsley v. Hendrick-
son, 135 S. Ct. 2466, 2475 (2015) (“[P]retrial detainees (unlike
convicted prisoners) cannot be punished at all, much less ‘ma-
liciously and sadistically.’” (citations omitted)); Bell v. Wolfish,
441 U.S. 520, 535 (1979) (“For under the Due Process Clause,
a detainee may not be punished prior to an adjudication of
guilt in accordance with due process of law.”). Yet they also
are protected from certain abusive conditions. The difference
is that the claims of state detainees being held on probable
cause arise under the Fourteenth Amendment’s Due Process
Clause. Collins v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017).
That said, we have typically assessed pretrial detainees’
medical care (and other) claims under the Eighth Amend-
ment’s standards, reasoning that pretrial detainees are enti-
tled to at least that much protection. E.g., Minix, 597 F.3d at
831; Board v. Farnham, 394 F.3d 469, 477–78 (7th Cir. 2005). In
conducting this borrowing exercise, we have grafted the
Eighth Amendment’s deliberate indifference requirement
onto the pretrial detainee situation. Cavalieri, 321 F.3d at 620.
Missing from this picture has been any attention to the differ-
ence that exists between the Eighth and the Fourteenth
Amendment standards.
The Supreme Court recently disapproved the uncritical
extension of Eighth Amendment jurisprudence to the pretrial
setting in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). There
the Court held that a pretrial detainee bringing an excessive-
force claim did not need to prove that the defendant was sub-
jectively aware that the amount of force being used was unrea-
sonable. Id. at 2472–73. Rather, the plaintiff needed only to
show that the defendant’s conduct was objectively unreasona-
ble. Id. Kingsley, it is worth emphasizing, was a Fourteenth
22 No. 17-1603
Amendment Due Process case. Indeed, the Court took pains
to reiterate the basic principles that apply to pretrial detain-
ees:
Several considerations have led us to conclude that the
appropriate standard for a pretrial detainee’s excessive
force claim is solely an objective one. For one thing, it
is consistent with our precedent. We have said
that “the Due Process Clause protects a pretrial de-
tainee from the use of excessive force that amounts to
punishment.” Graham [v. Connor, 490 U.S. 386,] 395,
n. 10 [1989]. And in Bell [v. Wolfish, 441 U.S. 520(1979)], we explained that such “punishment” can con-
sist of actions taken with an “expressed intent to pun-
ish.” 441 U.S., at 538. But the Bell Court went on to ex-
plain that, in the absence of an expressed intent to pun-
ish, a pretrial detainee can nevertheless prevail by showing
that the actions are not “rationally related to a legitimate
nonpunitive governmental purpose” or that the actions
“appear excessive in relation to that purpose.” Id., at
561.
135 S. Ct. at 2473 (emphasis added).
Though Kingsley’s direct holding spoke only of excessive-
force claims, two of our sister circuits have held that its logic
is not so constrained. The Ninth Circuit first extended Kings-
ley’s objective inquiry to detainees’ Fourteenth-Amendment
failure-to-protect claims. Castro v. Cnty. of L.A., 833 F.3d 1060,
1070–71 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831(2017). Since then, that court has applied the Kingsley holding
more broadly to a medical-need claim brought by a pretrial
detainee. Gordon v. Cnty. of Orange, 888 F.3d 1118, 1120, 1122–
25 (9th Cir. 2018). The Second Circuit followed suit, applying
No. 17-1603 23
the objective standard to detainees’ Fourteenth-Amendment
complaints about their conditions of confinement; in the pro-
cess it overruled a decision applying a subjective test to a
medical-care claim. Darnell v. Pineiro, 849 F.3d 17, 34–35
(2d Cir. 2017) (overruling Caiozzo v. Koreman, 581 F.3d 63(2d Cir. 2009)); see Wilson, 501 U.S. at 303 (medical care is a
condition of confinement). Later, the Second Circuit expressly
applied an objective standard to a claim of deliberate indiffer-
ence to a serious medical condition. Bruno v. City of Schenec-
tady, No. 16-1131, 2018 WL 1357377, at *2–*3 (2d Cir. Mar. 16,
2018) (unpublished) (asking “whether a ‘reasonable person’
would appreciate the risk to which the detainee was sub-
jected”). Other courts of appeals have contemplated the same
reading of Kingsley. Richmond v. Huq, 885 F.3d 928, 938 n.3
(6th Cir. 2018) (not applying Kingsley, which neither party
raised, but recognizing the “shift in Fourteenth Amendment
deliberate indifference jurisprudence [that] calls into serious
doubt whether [the plaintiff] need even show that the individ-
ual defendant-officials were subjectively aware of her serious
medical conditions and nonetheless wantonly disregarded
them”).
The Eighth, Eleventh, and Fifth Circuits have chosen to
confine Kingsley to its facts—that is, to Fourteenth-Amend-
ment claims based on excessive-force allegations in a pretrial
setting. E.g., Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4
(8th Cir. 2018); Dang by & through Dang v. Sheriff, Seminole
Cnty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); Alderson v. Con-
cordia Parish Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017)
(following circuit precedent and concluding that the issue
was not directly raised). It is worth noting, however, that a
concurring judge in Alderson advocated reconsideration of the
24 No. 17-1603
subjective standard to detainees’ other claims in light of
Kingsley. Id. at 424–25 (Graves, J., specially concurring in part).
Some circuits have continued to analyze inadequate med-
ical treatment claims under the deliberate indifference stand-
ard without grappling with the potential implications of
Kingsley. E.g., Duff v. Potter, 665 F. App’x 242, 244–45 (4th Cir.
2016) (applying the objective reasonableness standard to a de-
tainee’s excessive-force claim but not his medical-need claim,
which it affirmed on forfeiture grounds).
We have not yet expressly weighed in on the debate. Since
Kingsley, we have continued to duplicate the Eighth Amend-
ment inquiry for claims of deficient medical treatment. E.g.,
Phillips v. Sheriff of Cook Cnty., 828 F.3d 541, 554 n.31 (7th Cir.
2016). But we have acknowledged that Kingsley has “called
into question” our case law treating the “protections afforded
by” the Eighth and Fourteenth Amendments as “‘functionally
indistinguishable’ in the context of a claim about inadequate
medical care.” Smego v. Jumper, 707 F. App’x 411, 412 (7th Cir.
2017); accord Collins, 851 F.3d at 731.
Because the answer may make a difference in the retrial of
Gomes’s claims, we think it appropriate to address the proper
standard at this time. We begin with the fact that the Supreme
Court has been signaling that courts must pay careful atten-
tion to the different status of pretrial detainees. In this respect,
Kingsley does not stand alone. See, e.g., Manuel v. City of Joliet,
137 S. Ct. 911 (2017) (allowing Fourth Amendment challenges
to pretrial detention even beyond the start of legal process).
The Court has cautioned that the Eighth Amendment and
Due Process analyses are not coextensive. See Kingsley,
135 S. Ct. at 2475 (“The language of the two Clauses differs,
and the nature of the claims often differs.”); Currie v. Chhabra,
No. 17-1603 25
728 F.3d 626, 630 (7th Cir. 2013) (“[D]ifferent constitutional
provisions, and thus different standards, govern depending
on the relationship between the state and the person in the
state’s custody.”). We see nothing in the logic the Supreme
Court used in Kingsley that would support this kind of dissec-
tion of the different types of claims that arise under the Four-
teenth Amendment’s Due Process Clause. To the contrary, the
Court said that “[t]he language of the [Eighth and Fourteenth
Amendments] differs, and the nature of the claims often dif-
fers. And, most importantly, pretrial detainees (unlike con-
victed prisoners) cannot be punished at all, much less ‘mali-
ciously and sadistically.’” 135 S. Ct. at 2475 (citations omitted).
We thus conclude, along with the Ninth and Second Circuits,
that medical-care claims brought by pretrial detainees under
the Fourteenth Amendment are subject only to the objective
unreasonableness inquiry identified in Kingsley.
Although the defendants failed to mention Parratt v. Tay-
lor, 451 U.S. 527 (1981), overruled in part on other grounds by
Daniels v. Williams, 474 U.S. 327, 330–31 (1986), and thus have
forfeited any argument based on that case, we see nothing in
Parratt that points in the opposite direction. There the Su-
preme Court held that plaintiffs may not bring claims under
the Due Process Clause where state law provides an adequate
remedy. 451 U.S. at 543–44. Though the Estate has brought
state malpractice claims in addition to its due-process claim,
the availability of parallel and even overlapping forms of re-
covery does not doom its constitutional claim. See Zinermon
v. Burch, 494 U.S. 113, 124 (1990); Armstrong v. Daily, 786 F.3d
529, 539 (7th Cir. 2015). Parratt applies only to certain proce-
dural-due-process claims. The violation of which the Estate
complains derives from the substantive aspect of the Due Pro-
cess Clause. See Youngberg v. Romeo, 457 U.S. 307, 315–16
26 No. 17-1603
(1982); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
244 (1983); Collignon v. Milwaukee Cnty., 163 F.3d 982, 988
(7th Cir. 1998). In this situation, there is no amount of process
that would justify a decision to sit by and leave serious medi-
cal needs unattended. Parratt is thus beside the point.
We also see no conflict between this application of Kingsley
and the Supreme Court’s later decision in Daniels v. Williams,
474 U.S. 327 (1986). Daniels overruled part of Parratt and held
(or underscored) that negligent conduct does not offend the
Due Process Clause. Id. at 330–31. The defendants here worry
that an objective-reasonableness standard will impermissibly
constitutionalize medical malpractice claims, because it
would allow mere negligence to suffice for liability. A careful
look at Kingsley, however, shows that this is not the case; the
state-of-mind requirement for constitutional cases remains
higher.
Here is what the Court had to say about this problem in
Kingsley:
We consider a legally requisite state of mind. In a case
like this one, there are, in a sense, two separate state-
of-mind questions. The first concerns the defendant’s
state of mind with respect to his physical acts—i.e., his
state of mind with respect to the bringing about of cer-
tain physical consequences in the world. The second
question concerns the defendant’s state of mind with
respect to whether his use of force was “excessive.”
Here, as to the first question, there is no dispute. As to
the second, whether to interpret the defendant’s phys-
ical acts in the world as involving force that was “ex-
cessive,” there is a dispute. We conclude with respect
to that question that the relevant standard is objective
No. 17-1603 27
not subjective. Thus, the defendant’s state of mind is
not a matter that a plaintiff is required to prove.
135 S. Ct. at 2472. As applicable here, the first of those inquir-
ies asks whether the medical defendants acted purposefully,
knowingly, or perhaps even recklessly when they considered
the consequences of their handling of Gomes’s case. See id. at
2472, 2474 (discussing purposeful or knowing conduct and
leaving open the possibility that recklessness would also suf-
fice). The courts of appeals that have applied Kingsley to de-
tainees’ claims in contexts other than excessive force have
taken that step, while continuing to recognize that it will not
be enough to show negligence or gross negligence. Gordon,
888 F.3d at 1125 (under Kingsley, a detainee must “prove more
than negligence but less than subjective intent—something
akin to reckless disregard” (quoting Castro, 833 F.3d at 1071));
accord Darnell, 849 F.3d at 36 & n.16. As Kingsley instructs, the
second step is the objective one.
The allegations here easily fit the mold of Gordon, Darnell,
and Castro. A properly instructed jury could find that
Drs. Elazegui and Singh made the decision to continue ob-
serving Gomes in the jail, rather than transporting her to the
hospital, with purposeful, knowing, or reckless disregard of
the consequences. (The jury could also reject such a conclu-
sion.) It would be a different matter if, for example, the medi-
cal defendants had forgotten that Gomes was in the jail, or
mixed up her chart with that of another detainee, or if
Dr. Elazegui forgot to take over coverage for Dr. Kim when
he went on vacation. Such negligence would be insufficient to
support liability under the Fourteenth Amendment, even
though it might support state-law liability. Here, there is evi-
dence that Drs. Elazegui and Singh deliberately chose a “wait
28 No. 17-1603
and see” monitoring plan, knowing that Gomes was neither
eating nor drinking nor competent to care for herself. See Glis-
son, 849 F.3d at 380, 382 (recognizing inaction as a choice). Be-
cause the Estate does not claim merely negligent conduct, a
jury must decide whether the doctors’ deliberate failure to act
was objectively reasonable.
IV
Any death is a great loss, but one as preventable as
Gomes’s is especially disturbing. On this record, a jury could
have found that the intentional and knowing inaction of
Drs. Elazegui and Singh caused Gomes’s death. We therefore
REVERSE and REMAND for new trial of the Estate’s claim
against them, as it relates to Gomes’s death. We AFFIRM the
district court’s grant of summary judgment to the County de-
fendants.