West, Edwin v. Schwebke, Kurt

In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-4298

EDWIN C. WEST, et al.,

Plaintiffs-Appellees,

v.

KURT SCHWEBKE, et al.,

Defendants-Appellants.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99-C-0147—Lynn Adelman, Judge.

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ARGUED MAY 23, 2003—DECIDED JUNE 20, 2003

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Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. Like most other states,

Wisconsin holds some sex offenders past the ends of their

prison sentences. Those deemed “sexually violent per-

sons” are subject to civil commitment of indefinite dura-

tion under Wis. Stat. ch. 980. See Adams v. Bartow, No. 02-

3234 (7th Cir. June 3, 2003). Plaintiffs are among those

detained, or committed, under Chapter 980. They were

held in the Wisconsin Resource Center until June 2001,

when all but one were moved to the Sand Ridge Secure

Treatment Center. Individual treatment plans used at

the Resource Center contemplated the possibility that

misconduct would lead to what the state calls “therapeutic

2 No. 02-4298

seclusion”: placement in a cell that contains only a con-

crete platform (which serves as a bed), a toilet, and a

sink. Detainees in seclusion often were deprived of cloth-

ing and other amenities. Secluded detainees were al-

lowed out, in shackles, one hour a day on weekdays and

not at all on weekends (when staffing levels were lower).

When the staff thought that secluded detainees might

be ready for return to the general population, they were

allowed out two hours a day, but still kept in restraints.

One plaintiff was held in seclusion for 82 consecutive

days (and more than 100 days all told in 1998); all plain-

tiffs have been held in seclusion for at least 20 consecutive

days.

In this suit under 42 U.S.C. §1983 the detainees con-

tend that “therapeutic seclusion” as practiced in the

Wisconsin Resource Center violated their rights under the

due process clause of the fourteenth amendment. See

Youngberg v. Romeo, 457 U.S. 307 (1982). Sand Ridge

has different policies, not challenged in this litigation; the

one plaintiff who remains at the Resource Center is be-

ing held for violation of probation and not as a civil de-

tainee, so the suit has become one for damages rather

than injunctive relief. In response to defendants’ motion

for summary judgment—a motion that sought the benefit

of qualified immunity, if not victory on the merits—the

detainees offered the affidavits of two respected psychia-

trists, one of whom (Kenneth Tardiff) had been chairman

of the American Psychiatric Association’s task force on

the appropriate uses of seclusion and restraint. These

experts concluded unequivocally that the duration over

which the Resource Center applied seclusion was medi-

cally inappropriate and universally condemned by the

psychiatric profession as a therapeutic tool. One of the

affiants went further and opined that any contrary view

could not represent an honest, professional judgment.

Defendants offered contrary affidavits from three experts

No. 02-4298 3

of their own, psychiatrists with enough fortitude to risk

being labeled dishonest and unprofessional. The district

court concluded that this dispute within the profes-

sion prevents summary judgment. See West v. Macht, 235

F. Supp. 2d 966 (E.D. Wis. 2002). The judge lopped off

some additional claims and granted summary judgment

to some defendants; we limit this opinion to the remain-

ing claims and parties. Defendants now pursue an interloc-

utory appeal, arguing that qualified immunity entitles

them to an immediate end to what is left of the litigation.

See Behrens v. Pelletier, 516 U.S. 299 (1996).

Plaintiffs’ claims rest on the principle articulated in

Youngberg that “[p]ersons who have been involuntarily

committed are entitled to more considerate treatment

and conditions of confinement than criminals whose

conditions of confinement are designed to punish.” 457 U.S.

at 321-22. Although the Court rejected in Youngberg

an argument that the state must establish the “necessity”

of applying to detainees restraints or other forms of close

custody, it concluded that a state still must ensure that

considered judgment has been exercised. Detainees are

entitled to “the exercise of professional judgment as to the

needs of residents” (id. at 322); if professional judgment

leads to the conclusion that restraints are necessary

for the well-being of the detainee (or others), then the

Constitution permits those devices. Cf. Bell v. Wolfish, 441

U.S. 520, 539-40 (1979) (similar conclusion with respect to

pretrial detainees, who like civil detainees are held for

reasons other than punishment). Seling v. Young, 531

U.S. 250, 265 (2001), generalizes the proposition this way:

“due process requires that the conditions and duration

of confinement . . . bear some reasonable relation to the

purpose for which persons are committed.”

Defendants allow that these rules may be apt for nor-

mal detainees, such as the profoundly retarded plaintiff

in Youngberg who was committed because, with an 18-

4 No. 02-4298

month-old mind in a 33-year-old body, he was unable to

control his impulses and had become too unruly for his

family to handle. By contrast, defendants contend, persons

committed under Chapter 980 are “nontraditional” detain-

ees who may be handled more roughly. The word “non-

traditional” is a mantra in defendants’ briefs. Yet Seling,

a case about persons detained as sexually dangerous

predators, quoted favorably from Youngberg. So did Foucha

v. Louisiana, 504 U.S. 71, 79-80 (1992), which held that

persons charged with crime, and acquitted on the ground

of insanity, may not be held in civil commitment beyond

the time when they no longer pose a danger to self or

others. To the extent that plaintiffs are uncontrollably

violent, and thus pose a danger to others, Wisconsin is

entitled to hold them in segregation for that reason alone;

preserving the safety of the staff and other detainees

takes precedence over medical goals. So we said in

Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002); so the

district judge held in this very case. Just as a pretrial

detainee may be put in isolation—indeed, may be punished

for violating institutional rules, provided that the jailers

furnish notice and an opportunity for a hearing, see

Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002)—so a civil

detainee may be isolated to protect other detainees from

aggression. Institutions may employ both incapacita-

tion and deterrence to reduce violence within their

walls—though if mental limitations render a detainee

insensible to punishment, the only appropriate goal would

be incapacitation. Either way, if at trial defendants can

establish that their use of seclusion was justified on

security grounds, they will prevail without regard to the

question whether extended seclusion is justified as a

treatment. There is nothing that invocation of im-

munity can do for them, however, as long as the evidence

is in conflict on the question whether a reasonable per-

son could have thought the use of seclusion appropriate

from a security perspective.

No. 02-4298 5

Qualified immunity is available unless the rules of law

on which plaintiffs rely are so clearly established that

a reasonable state actor is bound to understand how

they apply to the situation at hand. See, e.g., Saucier v.

Katz, 533 U.S. 194 (2001); Anderson v. Creighton, 483

U.S. 635 (1987). Defendants acted after Foucha had made

it clear that Youngberg applies to civil detainees who

have committed criminal acts. See also, e.g., Allen v.

Illinois, 478 U.S. 364 (1986). This leaves only the ques-

tion whether defendants’ use of seclusion could be jus-

tified on either security or treatment grounds—and the

district judge thought this question unresolvable short

of trial, given the clash of expert opinions. An interlocutory

immunity appeal may not be used to present factual

disputes for pretrial appellate resolution. See Johnson

v. Jones, 515 U.S. 304 (1995). “A court required to rule

upon the qualified immunity issue must consider . . . this

threshold question: Taken in the light most favorable to

the party asserting the injury, do the facts alleged show

the [public official’s] conduct violated a constitutional

right?” Saucier, 533 U.S. at 201 (emphasis added). Taken

in the light most favorable to the plaintiffs, the record in

this case shows that defendants kept plaintiffs in seclu-

sion for periods far exceeding what could be justified

by considerations of either security or treatment. Now

maybe plaintiffs’ experts are wrong, but it will take a

trial to sort matters out.

To get anywhere on this appeal, defendants would

have to establish that no decision by a person with an

advanced degree is open to question in litigation. Defen-

dants have masters degrees in psychology. Their legal

position boils down to a contention that holders of such

degrees never need fear liability, even if the whole med-

ical profession and every published scholarly article are

against them. We grant the proposition, which may be

found in Youngberg itself, that states are entitled to

experiment. Detainees need not receive optimal treat-

6 No. 02-4298

ment, and the Constitution does not immediately fall

into line behind the majority view of a committee ap-

pointed by the American Psychiatric Association. In a

world of uncertainty about how best to deal with sexually

dangerous persons, there is room for both disagreement

and trial-and-error; all the Constitution requires is that

punishment be avoided and medical judgment be exer-

cised. But this is a far cry from saying that anything

goes—that if the holder of a masters degree in psychology

were to decide that sex offenders should be lobotomized

and subject to daily electroshock “therapy,” no court

could gainsay that decision. Prisons may attract those

members of the profession most disposed to stern mea-

sures, which makes some outside supervision vital.

What sets this case apart from others in which the

defendants received immunity, such as Allison v. Snyder,

No. 03-1570 (7th Cir. June 19, 2003), is that respected

experts have opined, on plaintiffs’ behalf, that the defen-

dants’ choices exceed the scope of honest professional

disagreement. Plaintiffs must show something worse

than a mistake about a matter open to bona fide disagree-

ment or genuine uncertainty. But if a trier of fact con-

cludes that the Resource Center’s use of seclusion was

designed to inflict extra punishment for the plaintiffs’ sex

crimes, rather than to treat their condition or protect

others from new violence, then the plaintiffs are entitled

to damages.

AFFIRMED

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-20-03