# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 13, 2013 *

Decided June 19, 2013

Before

JOEL M. FLAUM

, Circuit Judge

MICHAEL S. KANNE

, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 12

‐ 2122

B. MICHAEL SCHNEIDER,

Plaintiff

‐ Appellant,

v.

COUNTY OF WILL, ILLINOIS, et al.,

Defendants

‐ Appellees. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 08 C 3054

Robert W. Gettleman

Judge

.

O R D E R

Michael Schneider spent 20 days in jail after a judge in Will County, Illinois, held

him in criminal contempt. In this lawsuit he claims under 42 U.S.C. § 1983 that the county

sheriff and the jail warden should have released him after 10 days and, by holding him

longer, violated the Eighth Amendment. Schneider also claims under Illinois law that the

defendants intentionally caused him emotional distress by assigning him to a poorly NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* This successive appeal has been submitted to the original panel under Operating

Procedure 6(b). After examining the briefs and record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.

See F ED

. R. A PP

. P. 34(a)(2)(C).No. 12

‐ 2122 Page 2

ventilated cell with an ill and talkative child molester. Schneider anticipates that Will

County will indemnify the sheriff and warden, so the county is named as a third defendant.

See 28 U.S.C. § 1367(a); Coles v. City of Chicago

, 361 F.Supp.2d 740, 746 n.5 (N.D. Ill. 2005)

(“[I]t is common, and indeed advisable, for a plaintiff who expects a public entity to

indemnify a Section 1983 judgment to add that entity as a defendant on the indemnity claim

during the pendency of the Section 1983 case.”).

The district court initially accepted the premise, made in a motion to dismiss, that

the sheriff and warden simply had carried out instructions from the judge and thus shared

the judge’s absolute immunity. On that basis the court dismissed the Eighth Amendment

claim and declined to exercise supplemental jurisdiction over Schneider’s state

‐ law claim.

We overturned that decision and remanded for further proceedings. Schneider v. Cnty. of

Will

, 366 F. App’x 683 (7th Cir. 2010). Not only did we conclude that quasi

‐ judicial

immunity is a defense too steeped in facts for resolution on a motion to dismiss, but we also

expressed skepticism that the sheriff or warden could enjoy absolute, rather than qualified,

immunity. On remand, after a year of discovery, the district court granted summary

judgment for the defendants. This time the court reasoned that Schneider lacks evidence

tying the sheriff to the decision to keep him jailed, that quasi

‐ judicial immunity indeed

shields the warden from liability, and that both men are immune from Schneider’s state

‐ law

claim under the Local Governmental and Governmental Employees Tort Immunity Act, 745

ILCS 10/1

‐ 101 to 10

‐ 101. Schneider again appeals. We conclude that disputed issues of

material fact foreclose the grant of summary judgment for the warden and county on

Schneider’s constitutional claim, and thus we vacate the judgment in part and remand for

trial.

The following factual account is drawn from the evidence at summary judgment,

which we review in the light most favorable to Schneider. See Foskett v. Great Wolf

Resorts, Inc.

, 518 F.3d 518, 522 (7th Cir. 2008). In May 2007, Schneider attended a hearing in

the Circuit Court of Will County during a lawsuit to foreclose the mortgage on his fiancée’s

home. The presiding judge, James Garrison, held Schneider in contempt of court after he

disrupted the proceeding and attempted to file several frivolous motions on behalf of his

fiancée. The court sent a contempt mittimus to Paul Kaupas, the county sheriff, directing

him to take Schneider into custody and hold him for 20 days or “until released by process of

law.” There is no evidence that the sheriff himself read the mittimus.

Twelve days into his sentence, Schneider delivered (through his fiancée) a letter to

Michael O’Leary, the warden of the Will County Adult Detention Facility. Schneider’s

conduct in jail had been satisfactory, and thus, he asserted, he should have been released

after 10 days because the County Jail Good Behavior Allowance Act, 730 ILCS 130/3,

mandates day

‐ for

‐ day credit for good behavior. Sheriff Kaupas also received a copy of thisNo. 12

‐ 2122 Page 3

letter and faxed it to Warden O’Leary after concluding that O’Leary was best situated to

address Schneider’s concern.

Warden O’Leary took action by seeking advice from Mary Niemann, the supervisor

responsible for managing records and calculating release dates for prisoners. During a

discovery deposition, O’Leary testified that, according to Nieman, judges in Will County do

not want prisoners in the jail to receive credit for good behavior unless approval is noted on

the mittimus, which Judge Garrison had not done. O’Leary wanted more assurance, he

explained, so he told Niemann to contact the judge for confirmation. She told him later,

O’Leary insisted, that she had contacted “the court” and confirmed that Schneider was

supposed to serve the full 20 days. At her deposition, however, Niemann did not remember

contacting the court, though she vaguely recalled O’Leary instructing her to call Judge

Garrison. After communicating with Niemann, O’Leary sent Schneider (and Sheriff Kaupas)

a letter stating that the credits for good behavior did not apply—the letter does not mention

any communication with the court—and Schneider remained jailed for a total of 20 days.

On appeal Schneider challenges the dismissal of his federal and state claims as

against both Sheriff Kaupas and Warden O’Leary. We can dispense quickly with the sheriff

and with Schneider’s emotional distress claim. On this record a jury could not conclude that

the sheriff was deliberately indifferent to the possibility that Schneider was being held

unlawfully; after receiving Schneider’s letter, Kaupas delegated the matter to O’Leary, an

act that he reasonably could have expected to resolve the problem. See Burke v. Johnston

, 452

F.3d 665, 669 (7th Cir. 2006) (discussing elements of deliberate indifference claim in context

of unlawful incarceration); Greeno v. Daley

, 414 F.3d 645, 656 (7th Cir. 2005) (referring

medical grievance to doctor is not deliberate indifference). Neither could a jury find for

Schneider on his claim for intentional infliction of emotional distress: Not only is that claim

frivolous in light of Schneider’s failure to show the defendants’ personal involvement in

selecting his cellmate, see Feltmeier v. Feltmeier

, 798 N.E.2d 75, 80 (Ill. 2003); McGrath v. Fahey

,

533 N.E.2d 806, 809 (Ill. 1988), but under Illinois law both Kaupas and O’Leary are

absolutely immune from supervisory liability under Illinois’ Local Governmental and

Governmental Employees Tort Immunity Act, s ee 745 ILCS 10/4

‐ 103; see also Payne v.

Churchich

, 161 F.3d 1030, 1044 (7th Cir. 1998).

More difficult is the Eighth Amendment claim against Warden O’Leary. Although

we signaled in our previous decision that quasi

‐ judicial immunity seemed an ill fit for this

case, the district court nevertheless relied on that ground in dismissing this claim against

the warden. That reliance was mistaken. As an initial matter, we note that O’Leary himself

did not rely on quasi

‐ judicial immunity in moving for summary judgment, and it was error

for the district court to invoke that defense sua sponte without even inviting Schneider to

respond. See Dawson v. Newman

, 419 F.3d 656, 660 (7th Cir. 2005); Older Inst., Inc. v. Forde

,No. 12

‐ 2122 Page 4

333 F.3d 832, 836 (7th Cir. 2003). More importantly, the record does not support application

of the defense.

The reach of quasi

‐ judicial immunity is limited. Forrester v. White

, 484 U.S. 219, 224

(1988); Richman v. Sheahan

, 270 F.3d 430, 436 (7th Cir. 2001). Our previous decision explains

that a prisoner’s accusation that jailers “failed to give proper credit for time served is not an

attack on the judge’s sentence, but on the manner of executing that sentence. ” Schneider

, 366

F. App’x at 685. Thus, we observed, situations where administrators confined a prisoner

beyond the expiration of his sentence “typically involve qualified, not absolute, immunity.”

Id

. at 685–86.

Warden O’Leary never spoke with Judge Garrison, and we have never held that

indirect instructions like those “the court” purportedly relayed to O’Leary though Niemann

can confer absolute immunity. See Dunn v. City of Elgin, Ill.

, 347 F.3d 641, 648 (7th Cir. 2003)

(“Illinois police officers are simply required to look for some indicia of authority from an

Illinois court before enforcing an order.”); see also Hernandez v. Sheahan

, 455 F.3d 772, 776

(7th Cir. 2006) (reviewing immunity conferred by strict compliance with written custody

order); Richman v. Sheahan

, 270 F.3d at 433, 436 (reviewing immunity conferred by judge’s

spoken orders to bailiffs); Moss v. Kopp

, 559 F.3d 1155, 1167 (10th Cir. 2009) (immunity

conferred by written order). In fact, on this record a jury could not reasonably find that

Niemann spoke with the judge directly rather than to court staff (if she spoke to anyone at

all). Moreover, O’Leary does not, and cannot, assert that he simply executed a routine,

unambiguous mittimus from Judge Garrison. A mittimus instructing jailers to hold a

prisoner for a specific term unless “released by process of law” is ambiguous or, much

worse for O’Leary, a directive to comply with the County Jail Good Behavior Allowance Act.

The case is reminiscent of Hernandez

, where we held that even though the defendant

‐ jailors

had been ordered by a court to take custody of the plaintiff, that order did not immunize

them against the plaintiff’s claim that they ignored his repeated pleas of mistaken identity

because the order did not specifically forbid them from investigating such pleas. 455 F.3d at

776. The warden deemed the mittimus ambiguous, which is why he sought guidance from

Niemann. And though O’Leary perhaps could have asserted qualified immunity, he waived

that defense by ignoring our suggestion that it be explored on remand. See Merritt v. Broglin

,

891 F.2d 169, 171 n.4 (7th Cir. 1989); Walsh v. Mellas

, 837 F.2d 789, 799 (7th Cir. 1988).

The warden’s fallback position is no better. He argues that a jury could not

reasonably find that his response to Schneider’s correspondence constituted deliberate

indifference. According to O’Leary, he did enough by asking Niemann to investigate

Schneider’s entitlement to good time and then later confirming that she had spoken with

“the court.” The latter point cannot help him at summary judgment: When Niemann was

deposed she did not recall relaying instructions from Judge Garrison or even contacting theNo. 12

‐ 2122 Page 5

court, leaving the jury to disbelieve O’Leary’s story that Niemann had confirmed the

judge’s directive that Schneider serve all 20 days. Also fueling that negative inference is the

absence of support for O’Leary’s account from the judge, as well as O’Leary’s failure to

mention Niemann’s purported contact with Judge Garrison in his letter to Schneider.

A jury would not have reason to doubt Niemann’s testimony that Warden O’Leary

asked her for advice on how to proceed, but that conversation does not obviate the need for

a trial. A jailer is deliberately indifferent when he does nothing, Armstrong v. Squadrito

, 152

F.3d 564, 580 (7th Cir. 1998); Haygood v. Younger

, 769 F.2d 1350, 1355 (9th Cir. 1985)

(en banc), or when he takes action that is so inept or ineffectual that deliberate indifference

can be inferred, Burke

, 452 F.3d at 669; Moore v. Tartler

, 986 F.2d 682, 687 (3d Cir. 1993); see

also Arnett v. Webster

, 658 F.3d 742, 751 (7th Cir. 2011) (noting that a prison doctor

demonstrates deliberate indifference by pursuing treatment so “blatantly inappropriate as

to evidence intentional mistreatment”). Seeking legal advice, see Dahl v. Weber

, 580 F.3d 730,

734 (8th Cir. 2009), or asking a judge for written clarification, see Moore

, 986 F.2d at 687, are

reasonable steps that preclude finding deliberate indifference, but O’Leary did neither.

Niemann is not a lawyer, and although O’Leary easily could have contacted the local state’s

attorney for advice, see 55 ILCS 5/3

‐ 9005(a)(7), he did not. (O’Leary did send the state’s

attorney a copy of his letter to Schneider, but that was on June 11, 2007, at the earliest—only

two days before Schneider’s miscalculated release date.)

Further evidence of deliberate indifference is Warden O’Leary’s unquestioning

acceptance of Niemann’s interpretation of the mittimus. She told O’Leary that Judge

Garrison did not want Schneider to be given credit for good behavior since the mittimus

does not affirmatively say to award him credit, but judges in Illinois have no power to deny

or rescind credit for good behavior, which for prisoners confined in county jails is a

statutory right under state law. See People v Whitmore

, 728 N.E.2d 1267, 1270 (Ill. App. Ct.

2000), People v. Bailey

, 600 N.E.2d 1267, 1269 (Ill. App. Ct. 1992). A cursory examination of

the statute Schneider cited in his letter would have raised suspicions, even in the mind of a

layman, that Niemann had misinterpreted the mittimus. A jury reasonably could conclude

that O’Leary’s chosen course of action—continuing Schneider’s imprisonment based on a

layperson’s dubious evaluation of Schneider’s legal concern—was so deficient as to

constitute deliberate indifference, and we remand for trial on that question. Schneider’s

indemnity claim against Will County will join it on remand. See Wilson v. City of Chicago

, 120

F.3d 681, 683–85 (7th Cir. 1999); Coles

, 361 F.Supp.2d at 746 n.5.

Schneider’s remaining contentions are without merit and do not warrant discussion.

The order granting summary judgment for Warden O’Leary on Schneider’s claim under the

Eighth Amendment and Will County under state indemnification law is VACATED, andNo. 12

‐ 2122 Page 6

the case is REMANDED for trial on those claims. In all other respects the judgment is

AFFIRMED.