Kathleen Paine v. Richard Cason ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1487
K ATHLEEN P AINE, as guardian of the estate of
Christina Rose Eilman,
Plaintiff-Appellee,
v.
R ICHARD C ASON, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 3173—Virginia M. Kendall, Judge.
A RGUED S EPTEMBER 20, 2010—D ECIDED A PRIL 26, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
E ASTERBROOK, Chief Judge. Police arrested Christina
Eilman on May 7, 2006, outside Chicago’s Midway
Airport. Eilman had arrived from California, her home
state, on May 5, and on May 6 she tried to return. When
a ticket agent at Frontier Airlines told Eilman that she
lacked a reservation, Eilman threw a tantrum and was
2 No. 10-1487
escorted from the airport. On May 7 she purchased a
ticket from Southwest Airlines but behaved so oddly
while waiting to board the airplane that agents called
the police, who again escorted her from the airport. (The
district court’s opinion, 689 F. Supp. 2d 1027 (N.D. Ill.
2010), recounts the details; we provide only an outline.)
Eilman walked to the rail and bus terminal of the
Chicago Transit Authority, immediately outside the
airport, where she started singing loudly, ranting about
the price of oil, and screaming at other persons with
her face only inches from theirs. She would not or
could not stop, despite multiple requests, leading to
her arrest.
Eilman, 21 and in college, had been in an auto
accident the previous year. She recovered physically
but developed bipolar disorder, spending 37 days in a
mental hospital. (Whether the accident caused the
bipolar disorder or just aggravated an existing condition
is not important.) Eilman failed to take prescribed
psychotropic medicines and had relapses. Experts in
this litigation concluded that, during May 5 to 8, 2006,
Eilman was in an acute manic phase. She did not tell
the police about her mental-health background, how-
ever, and was uncooperative after her arrest—sometimes
refusing to answer questions, sometimes screaming, some-
times providing false or unresponsive answers. Phone
calls from her mother and her stepfather told officers
in Chicago that Eilman had bipolar disorder, but the
officers did not believe the stepfather (they thought
that the call was fake), and the officer who took the
calls from Kathleen Paine, Eilman’s mother, failed to tell
No. 10-1487 3
anyone else or record the information in Eilman’s file.
While Eilman was in custody, some officers thought
that she was just being difficult, some thought that
she was on drugs (expert reports relate that metham-
phetamine could cause similar symptoms), some
thought that she was no worse than the run of loud
and uncooperative people who don’t want to be in cus-
tody, and those who thought that she needed mental-
health care were ignored or overruled.
Police took Eilman from Midway Airport to the Eighth
District station, at 3515 West 63rd Street, 2.6 miles from
the airport by road (as are the other distances in
this opinion). She was in custody from midafternoon
of May 7 until that evening, when Lt. Earnest, the watch
commander, decided that Eilman would be charged
and held until she qualified for release on bond. That
decision led to Eilman’s transfer to the Second District
station at 5101 South Wentworth Avenue, about 5.7 miles
from the Eighth District station (and 7.3 miles from the
airport). The Second District has a holding facility for
women; the Eighth District does not. While at the
Second District, Eilman alternated between calm and
manic conduct, sometimes chatting amiably while some-
times screaming, chanting rap lyrics, smearing menstrual
blood on the cell’s walls, and taking off her clothes.
Officers processed the paperwork to release her on an
individual-recognizance bond. Eilman signed the bond
at about 6:30 PM on May 8 and walked out of the
stationhouse.
She had no idea where she was and did not do the most
sensible things—hail a taxi or head for a CTA station
4 No. 10-1487
(three were nearby) and get out of the area during the
remaining daylight. (Sunset that day was 7:57 PM .) It was
evening; the police station was close to the Robert Taylor
Homes, a public-housing project with an exceptionally
high crime rate; the police had not returned her cell
phone, so she could not easily summon aid; she was
lost, unable to appreciate her danger, and dressed in a
manner that attracted attention (a cutoff top with a
bare midriff, short shorts, and boots); and she is white
and well off while the local population is predominantly
black and not affluent, causing her to stand out as a
person unfamiliar with the environment and thus a
potential target for crime. Officer Pauline Heard saw
Eilman standing, with a puzzled look, in the station-
house’s parking lot. Heard pointed toward 51st Street.
Eilman began walking but did not leave the neighbor-
hood. She stopped in the J & J Fish Restaurant at
5401 South Wentworth. The restaurant’s staff and cus-
tomers have related that she was babbling and acting
strangely.
No. 10-1487 5
This map shows the location of the police station
(the arrow) and the restaurant (the pin); M symbols
indicate the nearest CTA stations (bus stops are un-
marked); the Robert Taylor Homes were east of Federal
Street between 39th and 54th Streets. Chicago began
6 No. 10-1487
demolishing the buildings in 2005, but some of the struc-
tures were still there in May 2006, with many apartments
empty as residents had been evicted in anticipation
of the demolition, which was completed in 2007. Vacant
apartments, like vacant buildings, render an area more
dangerous because such places can become havens for
criminals.
Eilman left the restaurant, walked two blocks north
(and one block east), and joined a cluster of 15 to 20
people on a street corner outside 5135 South Federal
Street, one of the project’s high-rise buildings. She ac-
companied several young men to Apartment 702, which
was vacant and had been taken over as a hangout. Some
of the occupants told her that it was unsafe and that
she should leave, but Eilman was too confused to act
on that advice. One man nonetheless led her to his grand-
mother’s house, but when Eilman said that she needed
a place to sleep for the night she was returned to Apart-
ment 702. About five hours after the police let Eilman
go, Marvin Powell found her there, forced others out,
and raped her at knifepoint. People outside tried and
failed to break down the door in time to save Eilman.
Trying to escape, Eilman jumped out the window,
which was seven stories above ground. She may have
been pushed or thrown out but cannot tell us what hap-
pened, because although she survived the fall her
brain was seriously damaged. She has undergone years
of physical therapy, but her brain functioning is perma-
nently that of a child. This suit under 42 U.S.C. §1983
against the City of Chicago and 13 police officers
(or civilian aides at the police stations) was filed by
No. 10-1487 7
Kathleen Paine, Eilman’s mother, in her capacity as
Eilman’s guardian. The district court granted judgment
in favor of some defendants but denied others’ motion
to dismiss. On this interlocutory appeal 10 of the
13 individual defendants contend that they are pro-
tected by qualified immunity.
The district court rejected the defendants’ claim of
immunity because, in the judge’s view, detainees’ right
to medical care is clearly established—and because a
reasonable jury could find that Eilman needed care, and
the police knew it. An interlocutory appeal from a
qualified-immunity decision is limited to legal issues,
see Johnson v. Jones, 515 U.S. 304 (1995), so we accept the
district court’s conclusion that Eilman’s captors knew
that she was mentally disabled (or were reckless in disre-
garding the signs observable to them). This has allowed
us to omit a great deal of factual detail.
Although the district court saw only one legal theory,
Paine actually has three, and these require separate
treatment. The first theory is the one the district judge
discussed: the right to medical care while in custody.
The second theory is that Eilman should have been
kept in custody longer to facilitate medical care. These
theories are related but distinct. The first theory takes
the time of release as given and asks what medical treat-
ment is required while custody continues; the second
emphasizes the medical care and asks how this affects
the time of release. Paine’s third theory is that the defen-
dants gratuitously put Eilman in danger by releasing
her where and when they did, and in a mental state
8 No. 10-1487
that left Eilman unable to protect herself. These three
theories have different implications for qualified immu-
nity. We address them in order.
1. Police must provide care for the serious medical
conditions of persons in custody. See Farmer v. Brennan,
511 U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97 (1976).
That right is clearly established. See Ortiz v. Chicago,
656 F.3d 523 (7th Cir. 2011) (discussing this duty and
why it applies even if the custody is expected to be
short). See also Cobige v. Chicago, 651 F.3d 780 (7th Cir.
2011). As we have already explained, whether the
police should have understood that Eilman had a
serious medical condition is a factual issue that cannot
be decided on an interlocutory appeal.
What appellants say about this theory is not that the
law was too uncertain to establish Eilman’s right to
medical care. It is instead that Paine has not established
causation. As appellants see things, Paine’s theory is not
really that a lack of medical care led to Eilman’s injury
so much as it is a lack of custody that did so. That is,
Eilman did not suffer (while in custody) a heart attack,
appendicitis, or other acute medical episode that caused
injury. Her condition was the same before her arrest as
it was after her release. Eilman’s injury came from
what happened after her release, not from the manic
episode while in custody.
Causation is another factual issue not suited to resolu-
tion on an interlocutory appeal, however. It is not related
to the question whether there is a clearly established
right to medical care while in custody.
No. 10-1487 9
Perhaps lack of causation could be so glaring that
the plaintiff would not even have standing to present a
particular claim for relief. But we cannot rule out the
possibility that Paine could show that Eilman suffered
some injury from the manic episode itself during the
hours of her custody. More: the rape and brain injury
might be traceable to the lack of care while Eilman was
in custody. A psychiatrist called to the stationhouse
might have administered Eilman’s prescribed psycho-
tropic medication, which she had failed to take. This
might have enabled Eilman to protect herself after she
was released. That plausible theory of causation cannot
be rejected on this interlocutory appeal.
2. Paine could have been satisfied had her daughter
been released in a way that allowed her to return to
California and receive treatment from her own medical
providers. Similarly, Paine could have been satisfied
had her daughter been kept in a cell until Paine reached
Chicago and could escort her home. This leads us to
ask whether there is a clearly established right to be
held in custody, as distinct from a right to the medical
care needed to avoid pain or injury while custody con-
tinues. But we start with the question whether the
police must protect people from private violence.
DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), holds that the Constitution
does not create a right to be protected from criminal
predators. The officers observe that Powell, not the
police, assaulted Eilman and insist that there is no
right—let alone the sort of clearly established right
10 No. 10-1487
needed to overcome a claim of immunity—to be de-
tained. While in a manic phase, Eilman was unable to
take care of herself, but three-year-old Joshua DeShaney
was even less capable of self-protection; the Justices
held in DeShaney that neither a potential victim’s help-
lessness nor the state’s knowledge that failure to
intervene exposes a vulnerable person to a risk of
crime requires the state to offer protection.
Had the police honored their duty to provide med-
ical care by referring Eilman for a psychiatric evaluation,
she would not have been released where and when she
was and would not have been in Apartment 702 the
evening of May 8, 2006. That would solve the DeShaney
problem, but only if there is a right to have custody
extended in order to provide additional medical care. We
do not think, however, that there is a clearly estab-
lished right to have custody extended for this reason.
The decisions on which Paine relies hold only that care
is required for the serious medical needs of those in
custody (what we are calling Paine’s first theory). A con-
tention that the police didn’t keep Eilman in custody
long enough is fundamentally different. Unlike the
arrestee in Ortiz, who died while in custody because the
police blocked her access to medications, Eilman was
released in the same mental condition as when she had
been arrested. If the police arrest someone for public
drunkenness and discover that he needs dialysis and a
liver transplant, they need not extend the custody so
that he can receive medical care at public expense; the
state is free to let him go in the condition in which he
No. 10-1487 11
was found. Similarly when the appropriate medical care
is a warm bed. Persons stopped on suspicion of intox-
ication don’t have a “right to be detained” until sober,
lest they come to harm while drunk. Paine does not
cite, and we could not find, any decision establishing
a right to be held in custody pending medical treatment
(or even a medical problem’s self-resolution, as with
the clearance of alcohol from the blood).
Our decision in Stevens v. Green Bay, 105 F.3d 1169(7th Cir. 1997), illustrates the limited force of an argu-
ment that police must detain someone for treatment.
Stevens, who was drunk, got into a fight in a bar.
Bouncers threw him out. Police could have arrested
him but chose not to. They drove him to a public phone,
from which he could call friends to pick him up. Instead
of calling for aid, however, Stevens wandered off and,
too intoxicated to protect himself, stepped into the path
of a car and was killed. Relying on DeShaney, we held
that the police did not have any duty to take Stevens
into custody or drive him to a hospital; it was enough,
Stevens concluded, that the police left Stevens no worse
off than when they found him. See also, e.g., King v. East
St. Louis School District 189, 496 F.3d 812 (7th Cir.
2007) (school not required to detain a pupil in order
to prevent her from walking through a high-crime neigh-
borhood). If police had stopped Eilman at the airport
and released her promptly, with a citation for disorderly
conduct, she would not have had a legitimate grievance
against the officers had she come to harm at a criminal’s
hands five hours later. Although Atwater v. Lago Vista,
532 U.S. 318 (2001), holds that police are entitled to
12 No. 10-1487
make custodial arrests for minor offenses, no decision
of which we are aware holds that they are required to
do so, whether or not the person would be better off
when in custody than when free.
Doubtless when the police do take someone into
custody, prevent him from getting medical care, fail to
supply a replacement for that care, and thus cause
his condition to deteriorate, there is a constitutional
problem—at least when the medical condition is
serious and the officers are deliberately indifferent to the
problem. So the Supreme Court held in Farmer, and its
conclusion is equally applicable to pretrial detainees.
Ortiz is a good example. But Paine does not contend
that Eilman would have obtained mental-health care
for herself had she been free on May 8, 2006—recall
that Eilman had been at liberty for the preceding days
yet failed either to seek treatment or take her medica-
tions, though Paine’s own experts concluded that
Eilman had been in an acute manic phase since May 5.
Nor does Paine contend that Eilman’s mental condition
deteriorated because of the custody.
Apart from the principle underlying DeShaney
and Stevens—that the Constitution is a charter of
negative liberties rather than a source of rights to protec-
tion or treatment—is the fact that a “right to be detained
for medical care” would put police in a bind. Evidence
in Portis v. Chicago, 613 F.3d 702, 704 (7th Cir. 2010),
suggests that 10% of all persons arrested in Chicago are
drunk or high on drugs, and a similar portion may have
some mental illness. Existing law creates a right to be
No. 10-1487 13
released on bail (for bailable crimes) as promptly
as possible, with 48 hours as the outside time
before presentation to a judicial officer who can make
an authoritative decision. See County of Riverside v.
McLaughlin, 500 U.S. 44 (1991). When it is possible,
police who do not need to hold someone for an appear-
ance in court must release people faster. Gramenos v.
Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986), suggests
that in some circumstances even four hours may be
excessive. In Portis a district court ordered the City
to pay damages for not releasing one category of
arrestees in less than two hours; we reversed that
decision, holding that the sole numerical line is the
one from McLaughlin, but did not retreat from Gramenos
and other decisions that the constitutional standard
of reasonableness often may call for release before
48 hours.
A competing “right to be detained” would put police
in a damned-if-you-do, damned-if-you-don’t situation.
Officers aren’t psychiatrists and would have trouble
separating persons who really need mental-health care
(or other medical care) from persons who are faking
or trying to make pests of themselves. Sending even a
modest fraction of arrested persons for mental-health
evaluation could swamp medical facilities—police in
Chicago make about 250,000 arrests annually, many
for minor infractions (such as Eilman’s) that ordinarily
are followed by prompt release. If the threat of finan-
cial liability induces the police to send any significant
portion of these to hospitals, the average time in custody
will go up (a mental-health evaluation requires two to
14 No. 10-1487
seven days, according to expert affidavits in this rec-
ord)—and for many of these people the extra time in
custody will be unwelcome and unnecessary. In a suit
such as this the judges don’t see the costs of false
positives (people referred for a lengthy evaluation
who could have been set free earlier), but they still
must consider the deprivation of liberty that these
false positives would entail.
What Paine has in mind is a constitutional parallel to
the “duty to stabilize” requirement in the Emergency
Medical Treatment and Active Labor Act, 42 U.S.C.
§1395dd. A person who arrives at a hospital’s emergency
room cannot be released until the medical condition
has been stabilized. Legislatures are free to create such
entitlements; the judiciary is not supposed to use §1983
in this fashion, as if the Constitution were a source
of authority to create a federal common law of torts
by public employees and apply it retroactively to
police officers who acted six years ago. More: people
who present themselves to emergency rooms want
medical care, so the problem of false positives is less
serious. Many arrested persons desperately want to be
released, so they can go home; they would not be
made better off by a doctrine that induced police to
detain them for mental-health evaluation or emergency-
room care whenever there was some question about
their physical or mental health.
But we need not and do not decide whether—and, if so,
when—there is a constitutional right to have custody
prolonged so that more or better medical care may be
No. 10-1487 15
provided. This is a qualified-immunity appeal, and the
critical question is whether plaintiff’s claim rests on a
“clearly established” right. See Messeschmidt v. Millender,
132 S. Ct. 1235, 1244–45 (2012). Paine relies principally
on decisions such as Farmer and Ortiz that concern
medical care during custody. She has not cited, and we
did not find, cases establishing (clearly or otherwise)
a right to be kept in custody, beyond the time when
release otherwise would occur, so that medical care
can be provided.
3. We arrive at Paine’s third theory. The police
arrested Eilman at Midway Airport, where she was safe,
and let her go 7.3 miles away, just before nightfall, in a
dangerous neighborhood. Data in the record show that
sexual assaults are 15 times more common, per capita, in
the precinct where Eilman was released than around
Midway Airport. And that is the figure for the local
populace. Eilman stood out because of her attire and
behavior; she was less aware than local residents of the
need for precautions and less able to take precautions to
the extent that she may have been aware of the need. She
was at considerably more than 15 times the risk of a
person near Midway Airport. And the police, who not
only created the extra risk by moving Eilman but also
were aware of the crime problem in and near the
Robert Taylor Homes—and, we must assume, aware that
Eilman was mentally unstable and unable to protect
herself—did nothing to mitigate that risk.
They did not warn Eilman about the neighborhood’s
dangers. They did not walk her to the nearest CTA
16 No. 10-1487
station (parallel to driving Stevens to a phone), from
which she could have reached a safer neighborhood
in minutes. They did not drive her back to the airport,
where she could have used her ticket to return to Cali-
fornia. They did not put Eilman in contact with her
mother, who had called the stationhouse repeatedly.
Her mother could have called a car service to pick
Eilman up and drive her to a hotel (or the airport), and
told her to remain at the stationhouse until the car ar-
rived. They did not even return Eilman’s cell phone,
which she could have used to summon aid. They might
as well have released her into the lions’ den at the
Brookfield Zoo. See Bowers v. DeVito, 686 F.2d 616, 618
(7th Cir. 1982), which anticipated DeShaney but added
that throwing someone into a snake pit would violate
the due process clause.
It is clearly established that state actors who, without
justification, increase a person’s risk of harm violate
the Constitution. Some decisions call this a special-rela-
tionship exception to DeShaney, but we prefer to avoid
the jargon. There’s no need to hunt for “special relation-
ships” (what makes one “special,” anyway?), and it is
misleading to treat augmented risk as an “exception” to
DeShaney. As we’ve mentioned, DeShaney rests on the
understanding that the due process clause establishes
a right to be let alone, not a right to be assisted. State
actors who needlessly create risks of harm violate the
due process clause by depriving persons of life, liberty,
or property without process (no one offered Eilman a
hearing on the question whether she should be released
in a dangerous place while unable to protect herself).
No. 10-1487 17
Several decisions in this and other circuits hold that
people propelled into danger by public employees have
a good claim under the Constitution. White v. Rochford,
592 F.2d 381 (7th Cir. 1979), is an example. Police
stopped a car and arrested the driver for drag racing.
They took the driver to the police station and left the
car, and its three remaining occupants, at the side of
the Chicago Skyway, a busy limited-access highway. All
three occupants were minors, and two of the three
were children. Drag racing is dangerous, but the situa-
tion of the children deteriorated when the police took
away the driver and left them stranded. When it
became too cold for them to stay in the car, they got
out, crossed the eight-lane expressway, and went
hunting for a public call box. Eventually they phoned
home and were picked up. They escaped being hit by
a car or attacked and robbed, but one of the three, a five-
year-old asthmatic, spent a week in a hospital as a result
of the ordeal, and all three suffered fright and other
mental distress. They had a good claim against the
police who left them in danger. Later decisions show
that DeShaney did not disturb that conclusion.
For example, Reed v. Gardner, 986 F.2d 1122 (7th Cir.
1993), holds that police violate the due process clause
by arresting the driver of a car and leaving its keys in
the hands of an intoxicated adult, who then endangers
third parties. (The drunk in Reed crossed the center line
while speeding and plowed into another car, one of
whose occupants died.) Wood v. Ostrander, 879 F.2d 583(9th Cir. 1989), also illustrates the principle that officials
violate the Constitution by gratuitously increasing the
18 No. 10-1487
risks of crime. A police officer stopped a car for driving
with its high-beam lights on, arrested the driver, and
called for a tow truck to have the car impounded.
The officer left the car’s passenger stranded in a high-
crime area. The passenger walked toward her home
until she accepted a ride from an unknown man, who
raped her. Wood held that leaving the passenger in
the lurch violated the due process clause; arresting the
driver had materially increased the passenger’s risks.
4. A detainee does not have a clearly established con-
stitutional right that release be delayed pending mental-
health treatment, but it is clearly established that the
police may not create a danger, without justification, by
arresting someone in a safe place and releasing her in a
hazardous one while unable to protect herself, and it is
also clearly established that police must arrange for
medical treatment of serious conditions while custody
continues.
Ten of the defendants have appealed. Some are
entitled to immunity under the approach we have taken,
some are not, and for two it may be necessary to hold
further proceedings to reach a conclusion. We briefly
discuss the evidence concerning each of the appellants.
Richard Cason was the arresting officer at Midway
Airport. He tried to persuade Eilman to leave the Airport
and arrested her only when her disruptive conduct con-
tinued. Paine does not deny that there was probable
cause to arrest Eilman. Cason told other officers at the
Eighth District that Eilman may need medical care.
No. 10-1487 19
That his advice was not followed does not support per-
sonal liability. Cason is entitled to qualified immunity.
Rosendo Moreno was on duty at Midway Airport and
assisted Cason in making the arrest. The record does
not show whether Moreno, like Officer Cason, suggested
to personnel at the Eighth District that Eilman receive
mental-health treatment. But an officer who makes
an arrest is not responsible for providing medical care
while the person is in custody, or for deciding where
and when the person will be released. Moreno is
entitled to qualified immunity.
David Berglind, a sergeant at the Eighth District, con-
ducted an intake evaluation of Eilman. He accepted
at face value Eilman’s statement that she did not
require mental-health care (even though Eilman cried
and chanted rap lyrics during Berglind’s interview of
her) and that the pills in her possession were for the
control of acne. Actually they were for the control of
her bipolar disorder. Berglind did not perform an inde-
pendent check, though it should have been possible to
look up the function of the drugs Eilman was carrying.
It is unclear, however, whether Berglind saw the medi-
cine bottles himself; they may have been confis-
cated by Officer Delia, who is not a defendant. Berglind
recommended against summoning a physician or psychi-
atrist to examine Eilman. Because, as we have already
explained, the reasonableness of that conclusion con-
cerns the merits rather than the existence of a clearly
established right, Berglind is not entitled to qualified
immunity. The possibility that Berglind’s superiors
20 No. 10-1487
would not have called medical assistance even if
Berglind had recommended it also is a question on the
merits rather than a basis of qualified immunity.
Carson Earnest, a lieutenant at the Eighth District,
was the watch commander and had ultimate responsi-
bility for detainees’ safety and welfare. He received
conflicting recommendations: Cason told him that
Eilman needed a psychiatric evaluation, and Berglind
told him that she didn’t. He sided with Berglind. It is
not clear whether Earnest observed any of Eilman’s
strange conduct. Earnest treated the call from Eilman’s
father as a prank; the record does not show why.
Although Johnson v. Jones puts such factual issues off-
limits on an interlocutory appeal, each defendant is
entitled to have the district court decide whether he or
she violated clearly established rights. On remand, the
district court should conduct whatever proceedings
are appropriate to determine whether, taking the facts
in the light most favorable to Paine, Earnest violated
Eilman’s clearly established right to medical care
while she was at the Eighth District. Earnest can be
liable only for what he did; there is no doctrine of super-
visory liability for the errors of subordinates such
as Berglind. See Ashcroft v. Iqbal, 556 U.S. 662, 676–77
(2009).
Teresa Williams, the lockup keeper at the Second
District, had a role parallel to Berglind’s. Like him, she
concluded and told her superiors that Eilman did not
require medical care. Like Berglind, she is not entitled to
qualified immunity.
No. 10-1487 21
Pamela Smith was a watch officer at the Second Dis-
trict. She received one of Paine’s calls and did
nothing in response; she did not even note the call in
the log. She was responsible for preparing Eilman’s
individual-recognizance bond and collecting the posses-
sions that were to be returned on her release. She is
potentially liable under both the failure-to-treat and
the augmented-danger-on-release theories, and not
entitled to qualified immunity on either theory.
Pauline Heard was a lockup officer (apparently a sub-
ordinate of Williams) at the Second District. She does
not appear to have been responsible for either evaluating
Eilman’s need for medical care or making the decision
to release her. Paine emphasizes, as the basis of
Heard’s liability, the fact that she pointed Eilman
toward 51st Street after her release. Providing walking
directions to someone who has already been released
on bond does not violate clearly established rights
under either the failure-to-treat theory or the augmented-
danger theory. Unless the record has other facts that
the parties have not discussed, Heard is entitled to quali-
fied immunity.
Sharon Stokes, a detention aide at the Second District,
inventoried Eilman’s possessions and found the psycho-
tropic medication. She concluded from Eilman’s
conduct that Eilman “appeared to be irrational” but did
not tell her superiors about this conclusion, or about
the drugs. She is potentially liable on the failure-to-
treat theory and not entitled to qualified immunity.
22 No. 10-1487
Cynthia Hudson, a detention aide at the Second
District, was responsible for evaluating inmates. Hudson
observed Eilman behaving in a mentally unstable way,
such as smearing menstrual blood on her cell walls,
and Hudson transferred another person out of Eilman’s
cell because of Eilman’s inappropriate behavior. Yet
she did nothing to alert other personnel at the station-
house (or so a trier of fact could conclude). She is not
entitled to qualified immunity on the failure-to-treat
theory. (She was not involved in Eilman’s release.)
Catonia Quinn, another detention aide, had the same
duties as Hudson. Like Hudson, Quinn saw Eilman
behave in ways that suggested the need for mental-
health care. Like Hudson, Quinn did not pass this infor-
mation to those responsible for making decisions. She
is not entitled to qualified immunity on the failure-to-
treat theory.
Benita Miller, the desk sergeant at the Second
District who ignored a call from Paine and made the
decisions not to provide Eilman with medical
assistance and to release her without any assistance in
getting out of the neighborhood, prevailed in the
district court and is not an appellant. 2008 U.S. Dist.
L EXIS 91575 at •27–38 (N.D. Ill. Nov. 8, 2008). We do not
express any view on whether this part of the district
court’s decision is sound; resolution of Miller’s situation
must await an appeal from the final decision.
The narration in this opinion has taken the facts in
the light most favorable to Paine; only a trial can
determine whether any of the non-immune defendants
No. 10-1487 23
is liable. Similarly, a trial would be needed to examine
any justifications the defendants may offer for their
behavior and any explanations they have for the
apparent failure to refer Eilman to a physician or do
anything to mitigate the risks she faced when she
was turned out the door. The district court’s decision
is affirmed with respect to six of the appellants,
reversed with respect to two, and remanded for pro-
ceedings consistent with this opinion with respect to
the remaining two.
4-26-12