In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3140

Gregory May,

Plaintiff-Appellee,

v.

Michael F. Sheahan,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 0395--David H. Coar, Judge.

Argued June 2, 2000--Decided September 8, 2000

 Before Flaum, Chief Judge, and Evans and Williams,

Circuit Judges.

 Williams, Circuit Judge. Pretrial detainee

Gregory May brought suit against Cook County

Sheriff Michael Sheahan and unnamed Sheriff’s

Department employees, alleging that the

conditions of confinement faced by detainees

taken to Cook County Hospital are

unconstitutional in several respects, as well as

illegal under the Americans with Disabilities Act

(ADA). Sheahan moved to dismiss May’s suit in the

district court on a variety of grounds, including

qualified immunity. The district court concluded

that Sheahan has qualified immunity from May’s

ADA claim, but otherwise denied Sheahan’s motion

to dismiss. Sheahan has filed this interlocutory

appeal to challenge the district court’s

rejection of his qualified immunity defense with

respect to May’s surviving claims. We affirm.

I

 In early January 1999, Gregory May was arrested

for possession of a controlled substance. Unable

to post bond, May was held at Cook County Jail in

the custody of Cook County Sheriff Michael

Sheahan, who oversees the jail. Seven days later,

May, who suffers from AIDS, was taken by

ambulance to Cook County Hospital. At the

hospital, May claims he was subject to various

Sheriff’s Department policies that violated his
rights.

 One such policy allegedly requires hospital

detainees to be shackled, hand and foot, to their

beds despite the 24-hour presence of an armed

guard. May claims that as a result of this policy

he has been shackled to his bed 24 hours-a-day,

which has caused him physical and emotional pain

and has impeded his ability to assist in his own

defense. Another policy supposedly provides that

hospital detainees will not be taken to assigned

court dates and will not be otherwise

accommodated (by telephone or video conference,

for example). Pursuant to this policy, May claims

that he has been unable to present a motion to

reduce his bond or attend any court appearances.

Still other policies allegedly restrict or deny

hospital detainees access to their lawyers,

visitors, legal materials, telephones,

typewriters or computers, books and magazines,

and recreational activities. According to May,

because of these policies he has been denied

access to his attorney, has been unable to

receive visitors, has been prevented from

assisting in his own defense, and has had limited

or no access to various ordinary amenities of

confinement in Cook County Jail.

 Based on these allegations, May asserted four

claims against Sheriff Sheahan: (1) that the

different treatment afforded jail detainees and

hospital detainees violates his constitutional

right to equal protection; (2) that Sheahan’s

restrictive hospital detainee policies violate

his constitutional right of access to the courts;

(3) that Sheahan’s policy of shackling all

hospital detainees to their beds around the clock

violates his constitutional right to freedom from

bodily restraint; and (4) that Sheahan’s

restrictive hospital detainee policies violate

the ADA. Sheahan filed a motion to dismiss May’s

complaint under Fed. R. Civ. P. 12(b)(6),

arguing, among other things, that qualified

immunity protected him from liability. The

district court granted Sheahan’s motion with

respect to May’s ADA claim against Sheahan in his

individual capacity on qualified immunity

grounds, but denied the motion in all other

respects. Exercising his right to take an

interlocutory appeal from an order rejecting a

qualified immunity defense, see Mitchell v.

Forsyth, 472 U.S. 511, 524-30 (1985), Sheahan now

appeals the district court’s qualified immunity

rulings on May’s three constitutional claims.

II

 Before we come to the merits of Sheahan’s

appeal, we must address a jurisdictional

question. The order Sheahan appeals decided a
motion to dismiss directed at May’s Amended

Complaint. While this appeal was pending,

however, May twice further amended his complaint,

both times with the district court’s permission,

so that his Third Amended Complaint now appears

to be the operative complaint in the district

court./1 If these subsequent amended complaints

have, in fact, superseded May’s original Amended

Complaint, the present appeal would be moot

because there would no longer be a live dispute

over whether Sheahan is entitled to qualified

immunity based on the allegations in the Amended

Complaint. Cf. Chan v. Wodnicki, 67 F.3d 137, 140

(7th Cir. 1995) (fact that trial occurred

rendered pre-trial appeal moot); 13A Charles Alan

Wright et al., Federal Practice and Procedure

sec. 3533.10, at 436 (2d ed. 1984). Thus, this

appeal would have to be dismissed for lack of

jurisdiction. See Arizonans for Official English

v. Arizona, 520 U.S. 43, 67-74 (1997); Wright et

al., supra, sec. 3533.10, at 436.

 Such a result, however, depends on whether

May’s second and third amended complaints

supersede his original Amended Complaint, a

question that turns on the district court’s

authority to accept the second and third amended

complaints despite the pendency of this appeal.

As a general matter, a notice of appeal "divests

the district court of its control over those

aspects of the case involved in the appeal."

Griggs v. Provident Consumer Discount Co., 459

U.S. 56, 58 (1982). Under this rule, the district

court retains jurisdiction to act only if the

order being appealed or the proceeding before the

district court is a discrete matter ancillary to

the issues under consideration in the other

court. Kusay v. United States, 62 F.3d 192, 193-

94 (7th Cir. 1995).

 Applying this rule to interlocutory qualified

immunity appeals under Mitchell v. Forsyth,

supra, Apostol v. Gallion, 870 F.2d 1335, 1337-38

(7th Cir. 1989), held that a notice of appeal

presumptively deprives the district court of

jurisdiction to proceed with a trial on the

merits of the claims on appeal. The Apostol court

concluded that whether a public official

asserting immunity should face a trial "is

precisely the aspect of the case involved in the

appeal" because the ultimate question in a

Forsyth appeal is whether a public official

should have to undergo the burdens of litigation.

870 F.2d at 1338 (internal quotations omitted).

In this appeal, we face the related but

unresolved issue of whether a district court

retains jurisdiction to allow proceedings short

of trial to go forward during the pendency of a

proper Forsyth appeal.
 To resolve this issue we must determine whether

such proceedings are "aspects of the case

involved in the appeal." In the years since

Apostol, the Supreme Court has made clear that a

Forsyth appeal implicates more than just a public

official’s right to avoid a trial, it also

protects a public official from burdensome

pretrial proceedings, including, most notably,

discovery. Behrens v. Pelletier, 516 U.S. 299,

305-08 (1996). Thus, there can be no doubt that

a Forsyth appeal divests a district court of the

authority to order discovery or conduct other

burdensome pretrial proceedings.

 But what about a district court’s authority to

accept an amended complaint? It might be argued

that the filing of an amended complaint places

little or no particular burden on a defendant

public official and, thus, does not involve (and

is ancillary to) whether the public official

should have to undergo the burdens of litigation.

Moreover, allowing a district court to accept an

amended complaint during the pendency of a

Forsyth appeal might better conserve judicial

resources on appeal by short-circuiting (that is,

making moot) any appeal involving a complaint on

which the plaintiff no longer wishes to stand.

Under such a rule, successive Forsyth appeals

involving successive complaints would be less

likely.

 Ultimately, however, these arguments are not

persuasive. To begin with, an order allowing the

plaintiff to file an amended complaint that

supersedes the complaint at issue in a pending

Forsyth appeal plainly implicates "an aspect of

the case involved in the appeal." The question a

court of appeals must answer in a Forsyth appeal

following the denial of a motion to dismiss is

whether the defendant public official is entitled

to qualified immunity (and can therefore avoid

the burdens of further litigation) based on the

allegations in the plaintiff’s complaint.

Behrens, 516 U.S. at 306-09; Forsyth, 472 U.S. at

526. Allowing a plaintiff to alter the

allegations in his or her complaint would have an

obvious effect on a pending Forsyth appeal. Thus,

unlike certain other interlocutory appeals, a

Forsyth appeal is not the sort of discrete and

ancillary matter that can be decided in isolation

from the remainder of the case against the public

official in his or her individual capacity./2

Stewart v. Donges, 915 F.2d 572, 576 (10th Cir.

1990).

 Moreover, allowing a plaintiff to file an

amended complaint while a Forsyth appeal is

pending does place a litigation burden on a

defendant public official. In response to each

amended complaint, the public official will
likely want to file an answer and a motion to

dismiss, and possibly appeal any unfavorable

decision. Having to take these steps compromises

a defendant public official’s right to avoid the

burdens of litigation. Of course, depriving the

district court of jurisdiction to accept an

amended complaint during a Forsyth appeal will

not forever prevent a plaintiff from amending his

or her complaint, but it will give the court of

appeals the opportunity to both pass on many of

the allegations the plaintiff will likely end up

relying on and offer guidance to the district

court (and the parties) on the legal issues

involved in the case. By doing so, the court of

appeals can limit the burden on the defendant

public official in responding to any post-appeal

amended complaint, a result consistent with the

purpose of a Forsyth appeal.

 Furthermore, the risk that judicial resources

might be wasted by successive Forsyth appeals

regarding complaints the plaintiff no longer

wishes to stand on is mitigated by two facts.

First, as the Supreme Court has recognized,

successive Forsyth appeals are uncommon. Behrens,

516 U.S. at 310. This makes sense since

successive appeals on what will typically be

similar, if not identical, issues only add to the

litigation burdens faced by public officials. The

incentive is for public officials to wait for a

point in the case when they have a chance to

dispose of all the claims against them without

the risk that the plaintiff will subsequently

file (and the district court will accept) a

superseding amended complaint. Second, district

judges are divested of jurisdiction over aspects

of a case involved in a Forsyth appeal only if

the appeal is colorable. Apostol, 870 F.2d at

1339. If a district court certifies the appeal to

be frivolous, it may proceed forward with the

case despite the pendency of the appeal. Id.; see

also Behrens, 516 U.S. at 310-11 (approving this

practice). Thus, district court proceedings need

not be delayed by successive appeals that raise

only issues previously decided.

 Finally, to the extent that the case law

relating to a district court’s jurisdiction while

a Forsyth appeal is pending tends to support any

particular resolution of the precise issue

presented by this case, it tends to support our

resolution. For instance, in an Eleventh

Amendment interlocutory appeal that relied on

Apostol in determining whether the district court

retained jurisdiction during the appeal, this

court described Apostol’s holding broadly as

requiring a stay of all proceedings to protect a

defendant’s right to be free of litigation.

Goshtasby v. Board of Trustees, 123 F.3d 427, 428

(7th Cir. 1997). Likewise, the Tenth Circuit has
concluded, albeit in dicta, that "an

interlocutory appeal from an order refusing to

dismiss on . . . qualified immunity grounds

relates to the entire action and, therefore, it

divests the district court of jurisdiction to

proceed with any part of the action against an

appealing defendant." Stewart, 915 F.2d at 576.

In accordance with this authority, and for the

compelling reasons detailed above, we conclude

that a Forsyth appeal deprives a district court

of jurisdiction to accept an amended complaint

filed while the appeal is pending. Therefore, the

amended complaints May filed while this appeal

was pending are nullities and the complaint in

effect when this appeal was filed, his original

Amended Complaint, is the operative document.

Accordingly, this appeal is not moot, and our

jurisdiction is secure.

III

 Government officials performing discretionary

functions are entitled to a qualified immunity

that shields them from damages liability "insofar

as their conduct does not violate clearly

established statutory or constitutional rights."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Whether an official may be held personally liable

for his or her unlawful actions, therefore, turns

on "the objective legal reasonableness of the

action, assessed in light of the legal rules that

were clearly established at the time it was

taken." Wilson v. Layne, 526 U.S. 603, 614 (1999)

(internal quotations omitted). In order to be

"clearly established," the contours of a right

asserted must be sufficiently clear that a

reasonable official would understand that what he

or she is doing violates that right. Anderson v.

Creighton, 483 U.S. 635, 640 (1987). However, a

plaintiff need not show that the very action in

question has previously been held unlawful. Id.

 In applying this legal framework to review a

qualified immunity claim, we ask two questions:

(1) whether the plaintiff has asserted a

violation of a constitutional right, and (2)

whether the applicable constitutional standards

were clearly established at the time in question.

Levenstein v. Salafsky, 164 F.3d 345, 351 (7th

Cir. 1998); Erwin v. Daley, 92 F.3d 521, 525 (7th

Cir. 1996). In answering these questions,

however, we do not abandon the ordinary standards

of review. Therefore, since Sheahan’s qualified

immunity claims arise from a motion to dismiss

under Fed. R. Civ. P. 12(b)(6), we review the

district court’s ruling de novo, accepting as

true May’s factual allegations and drawing all

reasonable inferences in his favor. Levenstein,

164 F.3d at 347.
A. Equal Protection Claim

 In support of his equal protection claim, May

alleged that pursuant to the policies of Sheriff

Sheahan and for no legitimate reason, pre-trial

detainees housed in Cook County Jail are treated

differently than those at Cook County Hospital.

Specifically, according to May’s complaint,

hospital detainees, unlike jail detainees, are

not taken to court on assigned court dates and

are shackled to their beds. Likewise, again

according to May’s complaint, hospital detainees

do not have the same access as jail detainees to

lawyers, legal materials, reading materials,

various prison programs, and visitors. In the

prison context, the Equal Protection Clause of

the Fourteenth Amendment requires inmates to be

treated equally, unless unequal treatment bears

a rational relation to a legitimate penal

interest. Hudson v. Palmer, 468 U.S. 517, 523

(1984) (citing Lee v. Washington, 390 U.S. 333

(1968) (per curiam)); Williams v. Lane, 851 F.2d

867, 881 (7th Cir. 1988).

 Sheahan primarily argues that hospital detainees

and jail detainees do not warrant equal treatment

because they are not similarly situated and

different treatment is rationally related to

security concerns. It is not the case, however,

that any difference in the nature of a detainee’s

confinement justifies different treatment. See

Williams, 851 F.2d at 881-82 (affirming a

decision finding an equal protection violation in

the different treatment afforded two groups of

prisoners). Sometimes detainees in different

sorts of confinement are similarly situated for

the purposes of the challenged policy. Therefore,

as the district court recognized, the problem

with Sheahan’s argument is that it can be

accepted only after one assesses the strength and

nature of Sheahan’s security concerns as well as

the amount and kind of similarity in the

situations of hospital detainees and jail

detainees. At the motion to dismiss stage, it is

premature to make such factual assessments. See

Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d

959, 962-63 (7th Cir. 1996). If at the summary

judgment stage, the evidence indicates that

hospital detainees and jail detainees are not

similarly situated with respect to the purposes

of the challenged policies and that Sheahan’s

security or other concerns justify different

treatment, then Sheahan will be entitled to a

favorable ruling. But, at this stage, it is

enough that May’s allegations are recognizable as

and consistent with an equal protection claim.

 Sheahan further argues that, at the time in

question, it was not clearly established that his

treatment of hospital detainees would violate the
equal protection clause. However, Williams v.

Lane makes clear that differences in treatment

among inmates in different confinement situations

will support an equal protection claim. 851 F.2d

at 881. Sheahan complains that Williams involved

prison inmates in segregation, not hospital

detainees, but a perfect match with the facts of

a prior case is not required to defeat a

qualified immunity claim. Wilson, 526 U.S. at

614-15; Anderson, 483 U.S. at 640. It is enough

that Williams establishes that inmates in

different confinement situations are entitled to

equal treatment absent a legitimate reason for

different treatment. After Williams, the contours

of the right May asserts were sufficiently clear

that Sheahan should have understood that treating

hospital detainees and jail detainees differently

without a legitimate reason would be

unconstitutional./3 Accordingly, the district

court did not err in refusing to dismiss May’s

equal protection claim.

B. Access to the Courts Claim

 In setting out his access to the courts claim,

May alleged that Sheriff Sheahan’s restrictive

hospital detainee policies preclude him from

appearing in court, impede his access to his

attorney, and prevent him from assisting in his

own defense. Those seeking to vindicate their

rights in court enjoy a constitutional right of

access to the courts that prohibits state actors

from impeding one’s efforts to pursue legal

claims. Lewis v. Casey, 518 U.S. 343, 350-54

(1996); Bounds v. Smith, 430 U.S. 817, 821-23

(1977). To prove a violation of this right, a

plaintiff must demonstrate that state action

hindered his or her efforts to pursue a nonfrivolous legal claim and that consequently the

plaintiff suffered some actual concrete injury.

Lewis, 518 U.S. at 350-54.

 Sheahan defends against this claim primarily by

arguing that May failed to allege an actual

injury and thus cannot state a claim. Admittedly,

May’s allegations in this regard are vague. But,

his complaint can be read to allege that he has

been detained longer than would otherwise be

necessary if he could go to court. In relevant

part, he alleged,

Plaintiff will not be taken to any scheduled

court appearances thereby delaying the final

disposition of his case; causing him to remain in

custody for a longer period of time; preventing

him from requesting a lowering of his bond as a

result of his serious illness; delaying all other

motions which require his personal attendance;

and impeding his access to his attorney.
Under the generous standards applicable to a

complaint reviewed on a motion to dismiss, this

allegation is sufficient to state an access to

the courts claim.

 Sheahan further contends that, at the time in

question, it was not clearly established that his

alleged policies could violate a detainee’s right

of access to the courts. However, numerous

precedents recognize a detainee’s right of access

to the courts, both as a general matter and with

respect to legal assistance and participation in

one’s case. Bounds, 430 U.S. at 821-25; Procunier

v. Martinez, 416 U.S. 396, 419 (1974) (limit on

access to attorney), overruled in part on other

grounds by Thornburgh v. Abbott, 490 U.S. 401,

413-14 (1989); Penny v. Shansky, 884 F.2d 329,

330 (7th Cir. 1989) (limit on ability to appear

in court); Johnson ex rel. Johnson v. Brelje, 701

F.2d 1201, 1207-08 (7th Cir. 1983) (limit on

access to attorney); Harris v. Pate, 440 F.2d

315, 316-17 (7th Cir. 1971) (interference with

ability to prepare defense). A policy both

preventing detainees from going to court and

limiting drastically their access to attorneys

has obvious problems under these precedents. As

such, it was clearly established, at the time in

question, that Sheahan’s alleged policies could

violate a detainee’s right of access to the

courts./4 Accordingly, the district court did

not err in denying Sheahan’s motion to dismiss

May’s access to the courts claim.

C. Substantive Due Process Claim

 In support of his freedom from bodily restraint

claim, May alleged that pursuant to Sheriff

Sheahan’s policy of shackling hospital detainees

to their beds, he was shackled to his bed around

the clock despite his weakened state and despite

being watched by armed guards./5 The Due Process

Clause of the Fourteenth Amendment prohibits the

use of bodily restraints in a manner that serves

to punish a pre-trial detainee. Youngberg v.

Romeo, 457 U.S. 307, 316 (1982); Bell v. Wolfish,

441 U.S. 520, 535-37 (1979); Murphy v. Walker, 51

F.3d 714, 717-18 (7th Cir. 1995). The use of

bodily restraints constitutes punishment in the

constitutional sense if their use is not

rationally related to a legitimate non-punitive

government purpose or they appear excessive in

relation to the purpose they allegedly serve.

Wolfish, 441 U.S. at 561.

 Sheahan principally argues that his practice of

shackling hospital detainees is rationally

related to his legitimate security concerns.

Certainly, shackling all hospital detainees

reduces the risk of a breach of security and thus

furthers a legitimate non-punitive government
purpose. But, it is hard to see how shackling an

AIDS patient to his or her bed around the clock,

despite the continuous presence of a guard, is an

appropriate policy for carrying out this purpose.

Such a policy is plainly excessive in the absence

of any indication that the detainee poses some

sort of security risk. Cf. Wolfish, 441 U.S. at

539 n.20 ("[L]oading a detainee with chains and

shackles and throwing him in a dungeon may ensure

his presence at trial and preserve the security

of the institution. But it would be difficult to

conceive of a situation where conditions so

harsh, employed to achieve objectives that could

be accomplished in so many alternative and less

harsh methods, would not support a conclusion

that the purpose for which they were imposed was

to punish."). Perhaps after some discovery

Sheahan can produce evidence justifying both his

shackling policy in general and his shackling of

May in particular, but May’s allegations are more

than adequate to survive a motion to dismiss.

 Sheahan also argues that, at the time in

question, it was not clearly established that

around the clock shackling of a hospital detainee

would violate the Constitution. Sheahan’s

argument, however, relies on characterizing the

relevant constitutional right in a way that

essentially demands precedent involving an almost

identical factual scenario. Such particularity is

not required. Wilson, 526 U.S. at 614-15;

Anderson, 483 U.S. at 640. It is enough that

precedent establishes that pretrial detainees may

not be shackled without a good penological or

medical reason. See Murphy, 51 F.3d at 718.

Accordingly, the district court did not err in

refusing to dismiss May’s freedom from bodily

restraint claim.

IV

 May’s complaint adequately states a claim for

each of the constitutional violations he alleges

and the contours of each of the constitutional

rights he asserts was clearly established at the

time in question. Therefore, Sheriff Sheahan is

not entitled to qualified immunity on the

constitutional claims May asserts. Accordingly,

we Affirm the district court’s order denying

Sheahan’s motion to dismiss with respect to these

claims.

/1 May’s amended complaints have added new

allegations and provided factual detail regarding

his original allegations, in addition to

identifying the unnamed defendants and joining

additional plaintiffs.
/2 The scope of the divestiture of jurisdiction

effected by a Forsyth appeal is limited, however.

The district court has authority to proceed

forward with portions of the case not related to

the claims on appeal, such as claims against

other defendants or claims against the public

official that cannot be (or simply are not)

appealed. Still, a district court might find it

best to stay an entire case pending the

resolution of a Forsyth appeal. See, e.g.,

Monfils v. Taylor, 165 F.3d 511, 518-19 (7th Cir.

1998).

/3 In an effort to establish that legal uncertainty

does exist, Sheahan cites Rivera v. Sheahan, No.

97 C 2735, 1998 WL 531875, at *6 (N.D. Ill. Aug.

14, 1998), which rejected one detainee’s somewhat

similar equal protection claim. However, that

decision was based on the sufficiency of the

plaintiff’s allegations, not any ruling on the

legality of Sheahan’s policies. Therefore, even

if a single district court decision were

sufficient to create legal uncertainty (and it is

not, see generally Burgess v. Lowery, 201 F.3d

942, 944-46 (7th Cir. 2000)), the decision

Sheahan relies on will not do.

/4 In arguing for the opposite conclusion, Sheahan

again cites Rivera v. Sheahan, which rejected a

somewhat similar access to the courts claim. 1998

WL 531875, at *6. But, for the same reasons

articulated in supra note 3, Rivera does not

create any legal uncertainty with respect to the

contours of the right of access to the courts May

asserts.

/5 As the district court recognized, May’s complaint

also suggests a claim that Sheahan’s practice of

shackling May to his bed amounted to deliberate

indifference to a serious medical need (also a

due process violation, see Zentmyer v. Kendall

County, Ill., Nos. 99-1163, 99-1823, 2000 WL

760690, at *4 (7th Cir. June 13, 2000)), but May

does not pursue this theory on appeal. May,

however, does pursue on appeal allegations that

the limitations Sheahan has placed on his phone,

mail, and visitation rights violate due process,

but these allegations are not in his complaint so

we will not consider any claims that might be

based on these allegations either.