Jaclyn Currie , as personal representative, Administrator for the Estate v. Jogendra Chhabra

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 OKORO,
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 MAY 29, 2013 — D ECIDED A UGUST 20, 2013
____________________
Before BAUER , WOOD, and T INDER , Circuit Judges.
WOOD, 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. Jaclyn

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2 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. Immediately

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No. 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 to

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4 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.
MILLER & MARY K AY KANE , FEDERAL 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.

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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,

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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 that

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No. 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 claims

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8 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 Eighth

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No. 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‐

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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. REV. 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 on

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No. 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” throughout

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12 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 forgiving

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No. 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.

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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.

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