### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 2709

J ACLYN C URRIE

, as personal representative,

Administrator for the Estate and on behalf

of the Heirs of P HILLIP O KORO

, Plaintiff

‐ Appellee

,

v.

J OGENDRA C HHABRA

, 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

.

____________________

A RGUED M AY 29, 2013

— D ECIDED A UGUST 20, 2013

____________________

Before B AUER

, W OOD

, and T INDER

, Circuit Judges

.

W OOD

, 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. Jaclyn2 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. ImmediatelyNo. 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 to4 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 F ED

. R.

C IV

. P. 16(c)(2)(B); 6A C HARLES A LAN W RIGHT

, A RTHUR R.

M ILLER & M ARY K AY K ANE

, F EDERAL P RACTICE AND

P ROCEDURE § 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 thatNo. 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. P ENN

. L. R EV

. 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 claims8 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 EighthNo. 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. P ENN

. L. R EV

. 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 onNo. 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” throughout12 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 forgivingNo. 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 A FFIRM the order of the district court denying quali

‐

fied immunity to Chhabra and Reynolds and R EMAND for

further proceedings consistent with this opinion.