Abdelkader Rachid Belbachir, administrator of the estate of Hassiba Belbachir, deceased, Plaintiff-Appellant,
County of McHenry, et al, Defendants-Appellees.
Argued June 6, 2013
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 06 C 1392 — Philip G. Reinhard, Judge.
Before Posner, Rovner, and Wood, Circuit Judges.
Posner, Circuit Judge.
Hassiba Belbachir committed suicide 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 entered 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 immigration 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 McHenry County Jail, which has a contract with the federal government to house persons detained by order of those authorities. She was to remain there until her removal hearing, anticipated 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 defendants 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 supplemental 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 dismissal 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 defendants is equally applicable to them. Even if it is, the argument fails. The doctrine of law of the case "never blocks a higher court from examining a decision of an inferior tribunal." Payne v. Churchich, 161 F.3d 1030, 1038 n. 9 (7th Cir. 1998) (internal quotation marks and citations omitted); see 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 employees, and sometimes their employer, and sometimes other 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 Centegra's employees, though they were not employees of the jail) federal officers, the jail staff would be suable for federal constitutional violations under the doctrine of Bivens v. Six Unknown 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); Wilson 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.
Although Centegra's employees are not public employees, 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 Services, 675 F.3d 650, 670–73 (7th Cir. 2012); Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 824–26 (7th Cir. 2009); Conner v. Donnelly, 42 F.3d 220, 224–25 (4th Cir. 1994). Otherwise 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 question 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 criminal—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 "substantial." 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).
The Fourth Amendment forbids unreasonable searches and seizures. The immigration authorities, reasonably believing that Belbachir was inadmissible to the United States, were entitled to detain her pending the hearing on her application 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 challenged, 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 protection 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 Sherburne, 849 F.2d 1117, 1120–21 (8th Cir. 1988)—namely protection from harm caused by a defendant's deliberate indifference 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 asylum application is ruled on. She was not a convicted criminal; and "persons who have been involuntarily committed 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 curiam); 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 defendants by detaining Belbachir deprived her of an alternative source of protection from danger but also that in failing to protect her (as only they could do) they acted with deliberate 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, ...