Alfredo Miranda v. County of Lake

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-1603

ALFREDO MIRANDA, Administrator of Estate of Lyvita Gomes,

Plaintiff-Appellant,

v.

COUNTY OF LAKE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4439 — Sharon Johnson Coleman, Judge.

____________________

ARGUED DECEMBER 6, 2017 — DECIDED AUGUST 10, 2018

____________________

Before WOOD, Chief Judge, and EASTERBROOK and

HAMILTON, Circuit Judges.

WOOD, Chief Judge. In the fall of 2011, Lyvita Gomes failed

to show up for jury duty. This minor infraction triggered a

series of events that led to her untimely death in the early days

of 2012. She wound up in the county jail, where she refused

to eat and drink. The medical providers who worked at the

Jail did little other than monitoring as she wasted away in her

2 No. 17-1603

cell. By the time she was sent to the hospital, it was too late to

save her.

Alfredo Miranda, the administrator of Gomes’s estate,

brought an action under 42 U.S.C. § 1983 and assorted state-

law theories against Lake County, the Jail officials (the

“County defendants”), and Correct Care Solutions (CCS, the

Jail’s contract medical provider) and its employees (the “med-

ical defendants”). The district court dismissed the County de-

fendants at summary judgment. The medical defendants pro-

ceeded to trial, but halfway through the proceeding the court

granted judgment as a matter of law under Federal Rule of

Civil Procedure 50(a) for them on some claims. The Estate pre-

vailed to a modest degree on another claim, and part of the

case resulted in a mistrial. Our principal ruling in response to

the Estate’s appeal is that the Rule 50(a) judgment was prem-

ature, and so further proceedings are necessary.

I

A

On October 12, 2011, an officer arrested Gomes, a 52-year-

old Indian national, for failing to appear for jury duty. (In

hindsight, this was the County’s first misstep: as a non-citi-

zen, Gomes was categorically ineligible to serve as a juror.

705 ILCS 305/2(a)(4).) Gomes pulled away from the officer as

he attempted to arrest her. That action earned her a second

charge of resisting arrest. The officers took Gomes to

Lake County Jail, where she made statements that landed her

on suicide watch the next day. But she did not stay at the Jail

long. On October 14, Gomes was transferred to the custody of

the federal Immigration and Customs Enforcement (ICE) ser-

vice, which released her within a few days.

No. 17-1603 3

Roughly two months later, on December 14, after failing

to appear in court on the resisting-arrest charge, Gomes found

herself back in the Lake County Jail. Though officials initially

placed her in the general population, it quickly became appar-

ent that her physical and mental health were deteriorating,

and so she was moved.

On December 16, CCS’s Director of Mental Health,

Jennifer Bibbiano (a social worker), performed a mental

health evaluation on Gomes. Bibbiano documented that

Gomes had ingested no food or water since arriving at the Jail

two days earlier. As a result, Gomes was transferred the next

day to the Jail’s medical pod for closer monitoring. On

December 18, staff placed Gomes on suicide watch and the

hunger strike protocol. At that point, after she had gone four

days without food or water, staff weighed her for the first time

and recorded a weight of 146 pounds. Over the next ten days,

this number plummeted; by December 28, Gomes weighed

only 128 pounds.

During this period, social workers and physicians contin-

ued to assess Gomes daily. Defendant Dr. Rozel Elazegui, an

internist, saw Gomes on December 22 and 27. In several pro-

gress notes, the CCS staff reported various symptoms of de-

hydration, such as skin tenting. Gomes’s refusal to eat or

drink and her unresponsiveness often prevented the medical

staff from recording her vital signs and collecting any blood

or urine samples. For most of this time, Gomes lay in bed and

refused to speak.

As Gomes’s physical condition worsened, concerns about

her mental state grew. When Gomes appeared in court on De-

cember 20, the judge ordered a mental fitness examination.

On December 22, Gomes was identified as needing an urgent

4 No. 17-1603

psychiatric visit. That prompted a visit two days later from

psychiatrist Hargurmukh Singh, who first met Gomes then

and diagnosed her with a “psychotic disorder not otherwise

specified.” He prescribed no medication. After seeing Gomes

again on December 27, Dr. Singh concluded that her psycho-

sis rendered her unable to understand the risks of not eating

and unable to participate in her treatment plan. But his only

advice to Dr. Elazegui, who wanted to perform an involun-

tary blood draw for monitoring purposes, was that Elazegui

could do so if push came to shove.

Around this time the officials in charge of Lake County Jail

entered the picture. On December 26, Wayne Hunter, the Jail’s

acting chief, was first notified by email that Gomes was in the

Jail and was refusing medical treatment and tests. Hunter re-

ceived assurances that CCS staff were monitoring Gomes’s

condition and that they would provide him with any updates.

Two days later, Hunter personally went down to Gomes’s cell

in a futile attempt to persuade her to eat. On December 27,

Scott Fitch, the liaison between the correctional and medical

staff, learned about Gomes. He too asked for updates. Fitch

called Gomes’s public defender, entreating her to visit and en-

courage her client to eat. Sheriff Mark Curran did not hear

about Gomes until December 29, the day she left the Jail. That

same day, Jail officials went to court to get Gomes formally

released from custody.

Also on December 29, Dr. Young Kim, another CCS intern-

ist, returned to work from a vacation. Dr. Kim was surprised

to learn that Gomes had remained in the Jail while continuing

to refuse all food and drink. (A few stray comments in

Gomes’s medical records suggest that she may have rubbed

water on her body and perhaps taken a few sips of water from

No. 17-1603 5

her sink. But the record as a whole implies little to no water

intake.) Dr. Kim immediately called an ambulance to take

Gomes to the hospital for evaluation and treatment of her de-

hydration and psychosis. Unfortunately, this intervention

came too late. On January 3, 2012, five days after arriving at

the hospital, Gomes died. The autopsy opined that she died

of “Complications of Starvation and Dehydration.” The man-

ner of death was suicide.

B

The Estate filed this action against Lake County,

Sheriff Curran, Hunter, Fitch, CCS, Dr. Elazegui, Dr. Singh,

Bibbiano, and two more social workers, Ruth Muuru and

Edith Jones. It raised due process claims under 42 U.S.C.

§ 1983, state statutory and common law tort claims, violations

of international treaty obligations, and claims under the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Only

the claims against the medical defendants went to trial.

But the jury never had the opportunity to resolve some of

those claims. At the close of the Estate’s presentation of evi-

dence, the court entered judgment as a matter of law under

Rule 50(a) for social workers Muuru and Jones on all claims

against them. The court also concluded that the Estate had

failed to present enough evidence to reach the jury on the

question whether the medical defendants caused Gomes’s

death; it therefore granted them judgment as a matter of law

on that part of the case. The only question remaining for the

jury was the Estate’s due process claim for inadequate medi-

cal care, limited to the pain and suffering Gomes experienced

while in the Jail. The jury failed to reach a unanimous verdict

regarding the conduct of Dr. Elazegui and Dr. Singh but it

held social worker Bibbiano liable. It awarded the Estate

6 No. 17-1603

$119,000 in compensatory damages, which Bibbiano has paid

in full.

The Estate does not challenge the jury verdict, but it takes

issue with four aspects of the proceedings below: first, the dis-

trict court’s dismissal of the County defendants; second, the

judgment as a matter of law on causation of death; third, the

court’s ruling barring the Estate from pursuing one of its the-

ories of recovery under the Due Process Clause; and fourth,

the court’s instruction on the applicable legal standard. While

we find no merit in its first point, we conclude on the latter

three that the Estate is entitled to the opportunity to try its full

case against the medical defendants before a jury.

II

A

We start with the Estate’s attempt to revive some of the

claims against the County defendants. It first challenges the

district court’s conclusion that the Jail’s chief, Hunter, and li-

aison, Fitch, were not deliberately indifferent to Gomes’s in-

adequate medical care in violation of her due process rights.

We need not delve into the nuances of the standard for such a

claim, because the Estate faces an insurmountable hurdle in-

dependent of that standard. We have long recognized the fact

that correctional institutions (like most entities in a modern

economy) engage in the division of labor. See Greeno v. Daley,

414 F.3d 645, 656 (7th Cir. 2005) (citation omitted). When de-

tainees are under the care of medical experts, non-medical jail

staff may generally trust the professionals to provide appro-

priate medical attention. E.g., Rice ex rel. Rice v. Corr. Med.

Servs., 675 F.3d 650, 676, 678–79 (7th Cir. 2012); see also Rasho

No. 17-1603 7

v. Elyea, 856 F.3d 469, 478–79 (7th Cir. 2017) (holding that med-

ical professionals were not liable when sued in their capacity

as “prison administrators and policymakers, not treaters”).

We will not find a jail official to have acted with deliberate

indifference if she reasonably relied on the judgment of med-

ical personnel. E.g., Greeno, 414 F.3d at 655–56; Estate of Perry

v. Wenzel, 872 F.3d 439, 458–59 (7th Cir. 2017). On the other

hand, if jail officials had reason to know that their medical

staff were failing to treat or inadequately treating an inmate,

liability is possible. King v. Kramer, 680 F.3d 1013, 1018 (7th

Cir. 2012); Rice, 675 F.3d at 676.

Nothing in this record justifies a finding of personal liabil-

ity against the County defendants. Hunter and Fitch received

assurances that CCS staff were regularly monitoring Gomes.

They requested periodic updates on her condition. The med-

ical providers informed Hunter and Fitch that Gomes was sta-

ble and promised to send her to the hospital if necessary.

Knowing that the CCS employees were on the case, Hunter

and Fitch were entitled to rely on their professional judg-

ments. See Arnett v. Webster, 658 F.3d 742, 756 (7th Cir. 2011)

(“This is not a case where [the plaintiff] was being completely

ignored by medical staff.”). The fact that they expressed con-

cern about Gomes’s condition and tried directly and indi-

rectly to get her to eat does not make them culpable.

Because we find that Fitch and Hunter’s reasonable reli-

ance on their medical providers shields them from liability

under section 1983, we need not consider the County defend-

ants’ alternative arguments for dismissal.

8 No. 17-1603

B

While the Estate has apparently abandoned its claim that

Sheriff Curran is individually liable for Gomes’s inadequate

medical care, it is still trying to pursue an official-capacity

claim about the Jail’s allegedly deficient hunger-strike policy.

As an Illinois sheriff, Curran has final policymaking authority

over jail operations. DeGenova v. Sheriff of DuPage Cnty.,

209 F.3d 973, 976 (7th Cir. 2000). He is thus a proper party for

a claim under Monell v. Department of Social Services of

New York, 436 U.S. 658, 690–91 (1978), targeted at policies and

customs that deprive inmates of their federal rights. Id. Monell

liability is possible even if no individual official is found de-

liberately indifferent. Glisson v. Ind. Dep’t of Corr., 849 F.3d 372,

379 (7th Cir. 2017) (en banc).

The focus of the Estate’s Monell claim is Lake County Jail’s

hunger-strike policy. That policy required four things: (1) the

immediate notification of medical staff when an inmate be-

gins a hunger strike; (2) documentation of meal refusals and

immediate notification of a command officer after an inmate’s

third consecutive meal refusal; (3) the command’s investiga-

tion and communication with medical staff as needed; and

(4) a conference including the health services administrator

and the chief or deputy chief of corrections about the best

course of action. The Estate finds the policy lacking in some

respects, including the timing of notification and consulta-

tion, follow-up procedures if the hunger strike continues,

methods to review past suicidality, and guidance on what to

look for and how to document an inmate’s condition on sui-

cide watch.

The Estate’s concerns may be valid, but it has not shown

that the Sheriff was deliberately indifferent in enacting this

No. 17-1603 9

policy. Though hunger strikes may be common in jails, as

amici suggest, Gomes went longer without food and water

than anyone else in the Jail’s experience. This does not give

the Sheriff a free pass, since a single incident can be enough

for liability where a constitutional violation was highly fore-

seeable. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917,

929 (7th Cir. 2004) (rejecting the notion of a “‘one free suicide’

pass”). But this is not a case in which the Jail knew that hunger

strikes were a risk yet did nothing. It had a system in place,

and that system included a series of reasonable measures.

The Estate presented no evidence that would allow a trier

of fact to conclude that some feature in the Jail’s policy caused

Gomes’s death. Once Jail staff learned about her refusal to eat

or drink, they stayed in regular communication with CCS’s

medical personnel. See Belbachir v. Cnty. of McHenry, 726 F.3d

975, 983 (7th Cir. 2013). It is unclear whether anyone con-

nected the dots between Gomes’s suicidal statements in Octo-

ber and her condition in December, but that is irrelevant be-

cause staff identified Gomes as actively suicidal almost from

the start of her second detention. There is no reason to think

that additional guidance in the hunger-strike policy would

have made a difference in Gomes’s deterioration. Summary

judgment was appropriate on this Monell claim.

C

We can be brief with the Estate’s complaint that the

County defendants failed to comply with their international

treaty obligations. Article 36 of the Vienna Convention guar-

antees a foreign national the right to have her home country’s

consular office notified when she is detained. Vienna Conven-

tion on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77;

Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).

10 No. 17-1603

When Gomes, an Indian national, was detained in October,

ICE officials informed her of her Article 36 rights. No one re-

peated this advice when Gomes was taken back into custody

in December. Still, we think summary judgment is appropri-

ate, though for reasons different from those mentioned by the

district court.

The district court was concerned that the Estate failed to

mention section 1983 when raising this claim, see Jogi v. Voges,

480 F.3d 822, 825 (7th Cir. 2007) (Jogi II), but “complaints need

not plead legal theories,” and so that alone does not support

dismissal, see id. at 826. Another strike against the Estate, ac-

cording to the district court, was the lack of evidence connect-

ing Gomes’s death with the failure to notify. Indeed, when

given the opportunity to speak with the Indian consulate in

October, Gomes chose not to do so. Nonetheless, we have yet

to explore the question whether a plaintiff is required to show

actual harm in order to recover for an Article 36 violation, or

if this is more in the nature of a failure to receive required Mi-

randa warnings.

We need not wrestle with that issue now, however, be-

cause our case is easily resolved on the more straightforward

ground of qualified immunity. The County officials are im-

mune from suit if it was not clearly established in 2011 that

their conduct violated the Vienna Convention. See Pearson v.

Callahan, 555 U.S. 223, 245 (2009). Article 36 charges “compe-

tent authorities” with notifying foreign nationals. The term

“competent authorities” includes booking officers. Mordi v.

Zeigler, 770 F.3d 1161, 1166–1167 (7th Cir. 2014). Consistent

with this precedent, the Jail’s written policy places the notifi-

cation obligation exclusively with booking officers. But the

Estate did not sue the officer who booked Gomes. And, as we

No. 17-1603 11

acknowledged in 2014, the boundaries of who else might

qualify as a competent authority have “yet to be fixed.” Mordi,

770 F.3d at 1167. Because it was not clearly established who,

beyond the booking officer, had a duty to inform Gomes of

her consular rights, the County defendants are entitled to

qualified immunity.

D

The Estate also seeks to reinstate a Monell claim based on

the County’s alleged failure to train Jail staff to notify detain-

ees of their consular rights. A failure-to-train claim is actiona-

ble only if the failure amounted to deliberate indifference to

the rights of others. City of Canton v. Harris, 489 U.S. 378, 388

(1989). Deliberate indifference exists where the defendant

(1) failed “to provide adequate training in light of foreseeable

consequences”; or (2) failed “to act in response to repeated

complaints of constitutional violations by its officers.” Sorn-

berger v. City of Knoxville, 434 F.3d 1006, 1029–30 (7th Cir.

2006). In essence, the defendant must have actual or construc-

tive notice of a problem. See Robles v. City of Fort Wayne, 113

F.3d 732, 735 (7th Cir. 1997).

Here, Sheriff Curran had neither. The Estate points to no

evidence indicating that detainees repeatedly complained

about the absence of consular notification. The parties try to

paint the problem as rampant or nonexistent, but the record

does not support either extreme.

Sheriff Curran did not fail to act in the face of foreseeable

violations. Lake County Jail has had a policy about consular

notification since at least October 2005. In addition to requir-

ing booking officers to inform detainees, the policy specified

that all officers who work at the booking desk “shall receive

12 No. 17-1603

appropriate training,” including a video, handouts, and a

training session. Sheriff Curran testified that he knew about

this policy and was never notified that it was not being fol-

lowed. Thus, at most, Sheriff Curran was negligent in failing

to ensure that the Jail’s training protocol was being imple-

mented. This is not enough to establish that he was deliber-

ately indifferent to detainees’ rights. See Rice, 675 F.3d at 675

(requiring that “the failure to train reflect[] a conscious choice

among alternatives”). The Sheriff did not display deliberate

indifference, and so we need not consider the County defend-

ants’ alternative arguments.

III

We turn now to the Estate’s claims against Drs. Elazegui

and Singh, which the district court partially blocked on the

ground that there was not enough evidence of causation to

reach the jury. Though the Estate assigns error to the court’s

ruling on a motion in limine and its jury instruction, we need

reach these decisions only if we reverse on causation. This is

because neither ruling prejudiced the Estate on the claim that

did go to the jury. Under the single recovery rule, defendants

are jointly and severally liable for the full amount of compen-

satory damages that result from an indivisible harm; a plain-

tiff can recover only once for those damages. Janusz v. City of

Chi., 832 F.3d 770, 774, 777 (7th Cir. 2016); Minix v. Canarecci,

597 F.3d 824, 829–30 (7th Cir. 2010). The Estate has already

been fully compensated for Gomes’s suffering at the Jail, since

Bibbiano paid the assessed $119,000. It has not, however, re-

ceived any compensation for Gomes’s death. We thus turn to

the question whether that issue too should have gone to the

jury.

No. 17-1603 13

A

The court granted judgment as a matter of law on the Es-

tate’s constitutional and state-law wrongful death claims

against Drs. Elazegui and Singh because it thought that no ra-

tional jury could conclude that their actions caused Gomes’s

death. It identified two evidentiary gaps: first, the lack of ex-

pert testimony explaining what the notation of “Complica-

tions of Starvation and Dehydration” in the autopsy report

meant and how those complications related to Gomes’s death;

and second, the lack of expert testimony about what took

place during the five days between Gomes’s transfer to the

hospital and her death. We consider this decision de novo.

Holder v. Ill. Dep’t of Corr., 751 F.3d 486, 490 (7th Cir. 2014).

We start with the Estate’s claim under the Fourteenth

Amendment’s Due Process clause for inadequate medical

care.1 Although Dr. Elazegui and Dr. Singh were employed by

a private company that contracted with Lake County to pro-

vide detainees’ medical care, they are considered state actors

amenable to suit under section 1983. West v. Atkins, 487 U.S.

42, 54–56 (1988). They are not, however, entitled to qualified

immunity. Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016)

(en banc). Moreover, they concede both that Gomes’s medical

condition was objectively serious and that the evidence would

have permitted the jury to conclude the doctors acted with

1 We do so because this was the claim that supports the district court’s

subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343; the Estate

relied on the court’s supplemental jurisdiction, 28 U.S.C. § 1367, for its

state-law theories. It is possible that the alienage branch of diversity juris-

diction may also have existed, see 28 U.S.C. § 1332(a)(2), but this was not

explored.

14 No. 17-1603

deliberate indifference. Our focus is thus exclusively on cau-

sation.

To recover on its due process claim, the Estate had to pre-

sent “‘verifying medical evidence’ that the delay” in medical

care “caused some degree of harm.” Williams v. Liefer, 491 F.3d

710, 715 (7th Cir. 2007) (citation omitted). It did not, however,

bear the burden of proving that but for the medical defend-

ants’ inaction, Gomes would definitely have lived. It would

have been enough for the Estate to show that the resulting

harm was a diminished chance of survival. See Murrey v.

United States, 73 F.3d 1448, 1453–54 (7th Cir. 1996); Holton v.

Mem’l Hosp., 176 Ill. 2d 95, 119 (1997) (recognizing the lost

chance doctrine in Illinois). While expert testimony could be

used as “verifying medical evidence,” medical records alone

could suffice. Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.

2008); Williams, 491 F.3d at 715.

The record contains ample evidence from which a jury

could infer that Drs. Elazegui and Singh’s inaction dimin-

ished Gomes’s chances of survival. First, it shows that she

died from starvation and dehydration. Under Illinois law, au-

topsy reports are prima facie evidence of their findings and

conclusions, including cause of death. 725 ILCS 5/115-5.1. The

report here did not mince words about Gomes’s cause of

death—“Complications of Starvation and Dehydration”—or

her manner of death—“suicide.” The coroner implicitly ruled

out the possibility that Gomes died from any hospital-based

illnesses or other causes. The report is clear: not eating or

drinking caused her death. (Hospital records underscore this

conclusion. On the day she arrived at the hospital, Gomes was

already experiencing acute liver and renal failure. For present

purposes, however, we disregard these records, because they

No. 17-1603 15

were excluded from trial at the request of the medical defend-

ants, and the Estate has not challenged that exclusion on ap-

peal.)

Moreover, the Estate’s expert witnesses testified that the

doctors’ failure to transfer Gomes to the hospital sooner al-

lowed her deterioration to reach a dangerous point. Psychia-

try expert Dr. James Gilligan repeatedly testified that

Dr. Singh contributed to Gomes’s death by failing to initiate

her transfer from the Jail to the hospital. Furthermore,

Dr. Singh (a psychiatrist, recall) knew that Gomes was clini-

cally incompetent, but he took no steps to treat her even

though she was endangering her life. Dr. Gilligan concluded

that Dr. Singh’s “failure to act … contributed to [Gomes’s]

death.” Internal medicine expert Dr. Jack Raba testified that

Gomes’s pulse on December 25 was an “ominous sign,” rais-

ing the possibility of cardiovascular problems, electrolyte or

metabolic imbalances, or renal failure. He added that Gomes’s

blood pressure clearly indicated dehydration. Dr. Raba said it

was “impossible” not to consider that Gomes was starting to

show signs of organ failure. These “absolute signs” signaled

that Gomes urgently needed to be admitted to a hospital for

bloodwork and possibly forced feeding and medication.

Dr. Raba concluded that Dr. Elazegui’s failure to intervene

“contributed to [Gomes’s] ultimate demise and death.”

The prison doctors’ testimony lent support to Dr. Raba’s

expert opinion on causation. When Dr. Elazegui spoke with

Gomes on December 22, he informed her that starvation

risked organ failure and death. He asked to be informed when

her weight loss hit 18%, since that number indicates an in-

creased risk of organ failure. Dr. Kim’s testimony was also rel-

16 No. 17-1603

evant to the causation question. When he returned from vaca-

tion, he was concerned that Gomes could go into respiratory

failure or cardiac arrest at any minute (and unlike the others,

he promptly acted on this concern).

Taken together, this evidence was enough to support an

inference on the jury’s part that the delay in sending Gomes

to the hospital resulted in her death, or at least lessened her

chance of survival.

Our analysis applies with equal force to the Estate’s state

malpractice claims. See 740 ILCS 180/1. Under this theory, the

Estate had to show that the physicians’ negligent failure to

comply with the standard of care proximately caused

Gomes’s injury. See Sullivan v. Edward Hosp., 209 Ill. 2d 100,

112 (2004). In Illinois, proximate cause “must be established

by expert testimony to a reasonable degree of medical cer-

tainty.” Morisch v. United States, 653 F.3d 522, 531 (7th Cir.

2011) (citation omitted). An expert’s opinion on the connec-

tion between a delay in treatment and injury must be factually

supported in order to be submitted to the jury. Wiedenbeck v.

Searle, 385 Ill. App. 3d 289, 293–94 (2008).

The proximate-cause inquiry encompasses both cause-in-

fact and legal cause. Palay v. United States, 349 F.3d 418, 432

(7th Cir. 2003). For there to be legal cause, a reasonable person

must have been able to foresee that the plaintiff’s injury

would result from his conduct. Id. For cause-in-fact, the plain-

tiff must show that but for the defendant’s conduct, the injury

would not have occurred. Id. Again, the injury can be the de-

cedent’s lost chance at survival. Holton, 176 Ill. 2d at 119.

A jury would have been permitted to find legal cause here.

By their own admission, Drs. Elazegui and Singh knew that if

No. 17-1603 17

Gomes continued to refuse food and fluids, she could die.

They warned her as much. The record also contained support

for cause-in-fact. The experts opined that the medical defend-

ants’ inaction contributed to Gomes’s death. This was not im-

permissibly conclusory for an expert opinion. See FED. R.

EVID. 705; see also Wilson v. Clark, 84 Ill. 2d 186, 196 (1981)

(adopting Federal Rule of Evidence 705 for Illinois). The med-

ical defendants are right that an expert’s testimony in a mal-

practice case cannot be based on “sheer, unsubstantiated

speculation.” Wiedenbeck, 385 Ill. App. 3d at 293. But the opin-

ions here suffered from no such flaw, and the defendants

were free to cross-examine the experts about what led them

to draw their conclusions. Wilson, 84 Ill. 2d at 194. Based on

Drs. Raba and Gilligan’s expert testimony, a jury could have

found that the defendants’ inaction more likely than not con-

tributed to Gomes’s decreased chance of survival and her ul-

timate death. The Estate is entitled to a new trial in which it

can present these arguments to a jury.

B

Since the Estate is entitled to a new trial against the medi-

cal defendants, we will also say a few words about its chal-

lenge to the district court’s decision to bar all reference to the

theory that the medical defendants violated the Due Process

Clause by failing to protect Gomes from harming herself. Our

review is for abuse of discretion. Perry v. City of Chi., 733 F.3d

248, 252 (7th Cir. 2013).2

2 Once again, it is worth recalling that a person may recover only once

for a given set of injuries. At this stage, however, no one has had any oc-

casion to consider whether state law and federal law overlap so much that

the elements supporting each theory are the same, or that full relief could

18 No. 17-1603

The Supreme Court has declared that “competent per-

sons” have a due-process “right to refuse lifesaving hydration

and nutrition.” Washington v. Glucksberg, 521 U.S. 702, 723

(1997) (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,

279 (1990)). But this right does not extend to incarcerated per-

sons who have been deemed incompetent. Freeman v. Berge,

441 F.3d 543, 546 (7th Cir. 2006). For these detainees, jails have

a duty “to prevent the prisoner from giving way” to the “un-

usual psychological strain” caused by incarceration. Id. at 547.

We repeatedly have recognized a jail or prison official’s

failure to protect an inmate from self-harm as one way of es-

tablishing deliberate indifference to a serious medical need.

E.g., Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989–

90 (7th Cir. 2012); Collins v. Seeman, 462 F.3d 757, 760–61 (7th

Cir. 2006). The obligation to intervene covers self-destructive

behaviors up to and including suicide. Rice, 675 F.3d at 665;

Cavalieri v. Shepard, 321 F.3d 616, 620–22 (7th Cir. 2003). The

duty applies “when suicide takes the form of starving oneself

to death.” Freeman, 441 F.3d at 547; accord Rodriguez v. Briley,

403 F.3d 952, 953 (7th Cir. 2005).

In barring this theory, the court reasoned that the Estate

had not presented evidence that Gomes’s suicidal ideation

and mental illness were “so acute” that the defendants should

have known about them and protected her from herself. See

Seventh Circuit Pattern Civil Jury Instruction 7.19 (rev. 2017)

(an element of a failure-to-protect-from-self-harm claim is

that the defendant was aware or strongly suspected a strong

likelihood of serious self-harm). The court attached particular

be recovered under either. Reconciliation of those theories is something

better done by the district court on remand.

No. 17-1603 19

weight to testimony from Gomes’s family members and the

administrator that she was a devout Catholic who had no his-

tory of mental illness and would not have committed suicide.

In the past, we have taken into account jail officials’

knowledge of a decedent’s mental health history or warnings

from family members, as that information pertains to the de-

fendants’ subjective awareness of a problem. E.g., Payne for

Hicks v. Churchich, 161 F.3d 1030, 1042 (7th Cir. 1998). But that

is not the use to which the court put the testimony of Gomes’s

family. It jumped from the fact that Gomes was a Catholic to

an assumption that the defendants were aware of her reli-

gious affiliation, but there is no evidence that they knew any

such thing. Furthermore, mental illness and suicide regretta-

bly afflict devout members of all religious groups. While a

jury could consider testimony from Gomes’s family when as-

sessing this theory of recovery, it was not the court’s role to

accept the family opinion as an undisputed fact.

And in any event, the trial record was filled with evidence

supporting a finding that the medical defendants knew that

Gomes was at great risk of death by starvation and dehydra-

tion, and that she was unable to think rationally. On Decem-

ber 27, Dr. Singh deemed her not competent and concluded

that she did not understand the risks of refusing to eat. Before

then, CCS staff documented Gomes’s suicidal ideation and

placed her on suicide watch. Dr. Elazegui had warned Gomes

that if she continued to refuse nutrition, she could die. The

defendants’ records reveal that they were aware that Gomes

was at serious risk of causing her own death. The district court

abused its discretion by prohibiting the Estate from pursuing

this line of argument. At the next trial, the Estate must be al-

lowed to argue this theory of recovery to the jury.

20 No. 17-1603

C

Finally, we consider whether the district court properly in-

structed the jury on intent. We evaluate the jury instructions

anew when deciding if they accurately state the law. Sanchez

v. City of Chi., 880 F.3d 349, 355 (7th Cir. 2018).

The Supreme Court first recognized an incarcerated per-

son’s right to receive adequate medical treatment in Estelle v.

Gamble, 429 U.S. 97 (1976), which concerned a convicted pris-

oner. In that case, the Court concluded that deliberate indif-

ference to a prisoner’s serious medical need violates the

Eighth Amendment’s protection against cruel and unusual

punishment. Id. at 104–05. The “deliberate indifference”

standard requires a showing that the defendant had a “suffi-

ciently culpable state of mind” and asks whether the official

actually believed there was a significant risk of harm. Pittman

ex rel. Hamilton v. Cnty. of Madison, 746 F.3d 766, 775–76 (7th

Cir. 2014).

This subjective standard is closely linked to the language

of the Eighth Amendment, which prohibits the infliction of

“cruel and unusual punishments.” The Supreme Court has in-

terpreted this to ban only the “unnecessary and wanton inflic-

tion of pain.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The

Court has applied the deliberate-indifference standard not

just to medical-care problems, but also to other types of

claims. See Farmer, 511 U.S. at 837 (failure-to-protect); Wilson

v. Seiter, 501 U.S. 294, 303 (1991) (conditions of confinement).

Pretrial detainees stand in a different position: they have

not been convicted of anything, and they are still entitled to

the constitutional presumption of innocence. Thus, the pun-

No. 17-1603 21

ishment model is inappropriate for them. Kingsley v. Hendrick-

son, 135 S. Ct. 2466, 2475 (2015) (“[P]retrial detainees (unlike

convicted prisoners) cannot be punished at all, much less ‘ma-

liciously and sadistically.’” (citations omitted)); Bell v. Wolfish,

441 U.S. 520, 535 (1979) (“For under the Due Process Clause,

a detainee may not be punished prior to an adjudication of

guilt in accordance with due process of law.”). Yet they also

are protected from certain abusive conditions. The difference

is that the claims of state detainees being held on probable

cause arise under the Fourteenth Amendment’s Due Process

Clause. Collins v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017).

That said, we have typically assessed pretrial detainees’

medical care (and other) claims under the Eighth Amend-

ment’s standards, reasoning that pretrial detainees are enti-

tled to at least that much protection. E.g., Minix, 597 F.3d at

831; Board v. Farnham, 394 F.3d 469, 477–78 (7th Cir. 2005). In

conducting this borrowing exercise, we have grafted the

Eighth Amendment’s deliberate indifference requirement

onto the pretrial detainee situation. Cavalieri, 321 F.3d at 620.

Missing from this picture has been any attention to the differ-

ence that exists between the Eighth and the Fourteenth

Amendment standards.

The Supreme Court recently disapproved the uncritical

extension of Eighth Amendment jurisprudence to the pretrial

setting in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). There

the Court held that a pretrial detainee bringing an excessive-

force claim did not need to prove that the defendant was sub-

jectively aware that the amount of force being used was unrea-

sonable. Id. at 2472–73. Rather, the plaintiff needed only to

show that the defendant’s conduct was objectively unreasona-

ble. Id. Kingsley, it is worth emphasizing, was a Fourteenth

22 No. 17-1603

Amendment Due Process case. Indeed, the Court took pains

to reiterate the basic principles that apply to pretrial detain-

ees:

Several considerations have led us to conclude that the

appropriate standard for a pretrial detainee’s excessive

force claim is solely an objective one. For one thing, it

is consistent with our precedent. We have said

that “the Due Process Clause protects a pretrial de-

tainee from the use of excessive force that amounts to

punishment.” Graham [v. Connor, 490 U.S. 386,] 395,

n. 10 [1989]. And in Bell [v. Wolfish, 441 U.S. 520

(1979)], we explained that such “punishment” can con-

sist of actions taken with an “expressed intent to pun-

ish.” 441 U.S., at 538. But the Bell Court went on to ex-

plain that, in the absence of an expressed intent to pun-

ish, a pretrial detainee can nevertheless prevail by showing

that the actions are not “rationally related to a legitimate

nonpunitive governmental purpose” or that the actions

“appear excessive in relation to that purpose.” Id., at

561.

135 S. Ct. at 2473 (emphasis added).

Though Kingsley’s direct holding spoke only of excessive-

force claims, two of our sister circuits have held that its logic

is not so constrained. The Ninth Circuit first extended Kings-

ley’s objective inquiry to detainees’ Fourteenth-Amendment

failure-to-protect claims. Castro v. Cnty. of L.A., 833 F.3d 1060,

1070–71 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831

(2017). Since then, that court has applied the Kingsley holding

more broadly to a medical-need claim brought by a pretrial

detainee. Gordon v. Cnty. of Orange, 888 F.3d 1118, 1120, 1122–

25 (9th Cir. 2018). The Second Circuit followed suit, applying

No. 17-1603 23

the objective standard to detainees’ Fourteenth-Amendment

complaints about their conditions of confinement; in the pro-

cess it overruled a decision applying a subjective test to a

medical-care claim. Darnell v. Pineiro, 849 F.3d 17, 34–35

(2d Cir. 2017) (overruling Caiozzo v. Koreman, 581 F.3d 63

(2d Cir. 2009)); see Wilson, 501 U.S. at 303 (medical care is a

condition of confinement). Later, the Second Circuit expressly

applied an objective standard to a claim of deliberate indiffer-

ence to a serious medical condition. Bruno v. City of Schenec-

tady, No. 16-1131, 2018 WL 1357377, at *2–*3 (2d Cir. Mar. 16,

2018) (unpublished) (asking “whether a ‘reasonable person’

would appreciate the risk to which the detainee was sub-

jected”). Other courts of appeals have contemplated the same

reading of Kingsley. Richmond v. Huq, 885 F.3d 928, 938 n.3

(6th Cir. 2018) (not applying Kingsley, which neither party

raised, but recognizing the “shift in Fourteenth Amendment

deliberate indifference jurisprudence [that] calls into serious

doubt whether [the plaintiff] need even show that the individ-

ual defendant-officials were subjectively aware of her serious

medical conditions and nonetheless wantonly disregarded

them”).

The Eighth, Eleventh, and Fifth Circuits have chosen to

confine Kingsley to its facts—that is, to Fourteenth-Amend-

ment claims based on excessive-force allegations in a pretrial

setting. E.g., Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4

(8th Cir. 2018); Dang by & through Dang v. Sheriff, Seminole

Cnty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); Alderson v. Con-

cordia Parish Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017)

(following circuit precedent and concluding that the issue

was not directly raised). It is worth noting, however, that a

concurring judge in Alderson advocated reconsideration of the

24 No. 17-1603

subjective standard to detainees’ other claims in light of

Kingsley. Id. at 424–25 (Graves, J., specially concurring in part).

Some circuits have continued to analyze inadequate med-

ical treatment claims under the deliberate indifference stand-

ard without grappling with the potential implications of

Kingsley. E.g., Duff v. Potter, 665 F. App’x 242, 244–45 (4th Cir.

2016) (applying the objective reasonableness standard to a de-

tainee’s excessive-force claim but not his medical-need claim,

which it affirmed on forfeiture grounds).

We have not yet expressly weighed in on the debate. Since

Kingsley, we have continued to duplicate the Eighth Amend-

ment inquiry for claims of deficient medical treatment. E.g.,

Phillips v. Sheriff of Cook Cnty., 828 F.3d 541, 554 n.31 (7th Cir.

2016). But we have acknowledged that Kingsley has “called

into question” our case law treating the “protections afforded

by” the Eighth and Fourteenth Amendments as “‘functionally

indistinguishable’ in the context of a claim about inadequate

medical care.” Smego v. Jumper, 707 F. App’x 411, 412 (7th Cir.

2017); accord Collins, 851 F.3d at 731.

Because the answer may make a difference in the retrial of

Gomes’s claims, we think it appropriate to address the proper

standard at this time. We begin with the fact that the Supreme

Court has been signaling that courts must pay careful atten-

tion to the different status of pretrial detainees. In this respect,

Kingsley does not stand alone. See, e.g., Manuel v. City of Joliet,

137 S. Ct. 911 (2017) (allowing Fourth Amendment challenges

to pretrial detention even beyond the start of legal process).

The Court has cautioned that the Eighth Amendment and

Due Process analyses are not coextensive. See Kingsley,

135 S. Ct. at 2475 (“The language of the two Clauses differs,

and the nature of the claims often differs.”); Currie v. Chhabra,

No. 17-1603 25

728 F.3d 626, 630 (7th Cir. 2013) (“[D]ifferent constitutional

provisions, and thus different standards, govern depending

on the relationship between the state and the person in the

state’s custody.”). We see nothing in the logic the Supreme

Court used in Kingsley that would support this kind of dissec-

tion of the different types of claims that arise under the Four-

teenth Amendment’s Due Process Clause. To the contrary, the

Court said that “[t]he language of the [Eighth and Fourteenth

Amendments] differs, and the nature of the claims often dif-

fers. And, most importantly, pretrial detainees (unlike con-

victed prisoners) cannot be punished at all, much less ‘mali-

ciously and sadistically.’” 135 S. Ct. at 2475 (citations omitted).

We thus conclude, along with the Ninth and Second Circuits,

that medical-care claims brought by pretrial detainees under

the Fourteenth Amendment are subject only to the objective

unreasonableness inquiry identified in Kingsley.

Although the defendants failed to mention Parratt v. Tay-

lor, 451 U.S. 527 (1981), overruled in part on other grounds by

Daniels v. Williams, 474 U.S. 327, 330–31 (1986), and thus have

forfeited any argument based on that case, we see nothing in

Parratt that points in the opposite direction. There the Su-

preme Court held that plaintiffs may not bring claims under

the Due Process Clause where state law provides an adequate

remedy. 451 U.S. at 543–44. Though the Estate has brought

state malpractice claims in addition to its due-process claim,

the availability of parallel and even overlapping forms of re-

covery does not doom its constitutional claim. See Zinermon

v. Burch, 494 U.S. 113, 124 (1990); Armstrong v. Daily, 786 F.3d

529, 539 (7th Cir. 2015). Parratt applies only to certain proce-

dural-due-process claims. The violation of which the Estate

complains derives from the substantive aspect of the Due Pro-

cess Clause. See Youngberg v. Romeo, 457 U.S. 307, 315–16

26 No. 17-1603

(1982); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,

244 (1983); Collignon v. Milwaukee Cnty., 163 F.3d 982, 988

(7th Cir. 1998). In this situation, there is no amount of process

that would justify a decision to sit by and leave serious medi-

cal needs unattended. Parratt is thus beside the point.

We also see no conflict between this application of Kingsley

and the Supreme Court’s later decision in Daniels v. Williams,

474 U.S. 327 (1986). Daniels overruled part of Parratt and held

(or underscored) that negligent conduct does not offend the

Due Process Clause. Id. at 330–31. The defendants here worry

that an objective-reasonableness standard will impermissibly

constitutionalize medical malpractice claims, because it

would allow mere negligence to suffice for liability. A careful

look at Kingsley, however, shows that this is not the case; the

state-of-mind requirement for constitutional cases remains

higher.

Here is what the Court had to say about this problem in

Kingsley:

We consider a legally requisite state of mind. In a case

like this one, there are, in a sense, two separate state-

of-mind questions. The first concerns the defendant’s

state of mind with respect to his physical acts—i.e., his

state of mind with respect to the bringing about of cer-

tain physical consequences in the world. The second

question concerns the defendant’s state of mind with

respect to whether his use of force was “excessive.”

Here, as to the first question, there is no dispute. As to

the second, whether to interpret the defendant’s phys-

ical acts in the world as involving force that was “ex-

cessive,” there is a dispute. We conclude with respect

to that question that the relevant standard is objective

No. 17-1603 27

not subjective. Thus, the defendant’s state of mind is

not a matter that a plaintiff is required to prove.

135 S. Ct. at 2472. As applicable here, the first of those inquir-

ies asks whether the medical defendants acted purposefully,

knowingly, or perhaps even recklessly when they considered

the consequences of their handling of Gomes’s case. See id. at

2472, 2474 (discussing purposeful or knowing conduct and

leaving open the possibility that recklessness would also suf-

fice). The courts of appeals that have applied Kingsley to de-

tainees’ claims in contexts other than excessive force have

taken that step, while continuing to recognize that it will not

be enough to show negligence or gross negligence. Gordon,

888 F.3d at 1125 (under Kingsley, a detainee must “prove more

than negligence but less than subjective intent—something

akin to reckless disregard” (quoting Castro, 833 F.3d at 1071));

accord Darnell, 849 F.3d at 36 & n.16. As Kingsley instructs, the

second step is the objective one.

The allegations here easily fit the mold of Gordon, Darnell,

and Castro. A properly instructed jury could find that

Drs. Elazegui and Singh made the decision to continue ob-

serving Gomes in the jail, rather than transporting her to the

hospital, with purposeful, knowing, or reckless disregard of

the consequences. (The jury could also reject such a conclu-

sion.) It would be a different matter if, for example, the medi-

cal defendants had forgotten that Gomes was in the jail, or

mixed up her chart with that of another detainee, or if

Dr. Elazegui forgot to take over coverage for Dr. Kim when

he went on vacation. Such negligence would be insufficient to

support liability under the Fourteenth Amendment, even

though it might support state-law liability. Here, there is evi-

dence that Drs. Elazegui and Singh deliberately chose a “wait

28 No. 17-1603

and see” monitoring plan, knowing that Gomes was neither

eating nor drinking nor competent to care for herself. See Glis-

son, 849 F.3d at 380, 382 (recognizing inaction as a choice). Be-

cause the Estate does not claim merely negligent conduct, a

jury must decide whether the doctors’ deliberate failure to act

was objectively reasonable.

IV

Any death is a great loss, but one as preventable as

Gomes’s is especially disturbing. On this record, a jury could

have found that the intentional and knowing inaction of

Drs. Elazegui and Singh caused Gomes’s death. We therefore

REVERSE and REMAND for new trial of the Estate’s claim

against them, as it relates to Gomes’s death. We AFFIRM the

district court’s grant of summary judgment to the County de-

fendants.