Paige Ray-Cluney v. Charles Palmer

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18-1429 & 18-1438

LAERA D. REED and PAIGE RAY-CLUNEY,

Plaintiffs-Appellants,

v.

CHARLES PALMER,

Defendant-Appellee.

____________________

Appeals from the United States District Court for the

Western District of Wisconsin.

Nos. 17-cv-590 & 17-cv-591 — Barbara B. Crabb, Judge.

____________________

ARGUED SEPTEMBER 13, 2018 — DECIDED OCTOBER 9, 2018

____________________

Before FLAUM, MANION, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. The State of Iowa declared Laera

Reed and Paige Ray-Cluney delinquent youths and sent them

to a juvenile institution in Wisconsin. Plaintiffs filed suit un-

der 42 U.S.C. § 1983 against multiple Wisconsin officials and

Charles Palmer, the Director of the Iowa Department of Hu-

man Services, alleging they suffered from the excessive use of

isolation cells and excessive force. A district court in the West-

ern District of Wisconsin dismissed plaintiffs’ claims against

2 Nos. 18-1429 & 18-1438

Palmer at the pleading stage on the basis of qualified immun-

ity, and plaintiffs now appeal. For the reasons below, we re-

verse.

I. Background

A. Factual Background

In January 2014, the State of Iowa closed the Iowa Girls

State Training School in Toledo, Iowa. Defendant Charles

Palmer, Director of the Iowa Department of Human Services,

subsequently contracted with the State of Wisconsin to use

the Wisconsin Girls State Training School (also known as

“Copper Lake”) in Irma, Wisconsin. Under the terms of the

agreement, Iowa agreed to pay Wisconsin $301 per day for

each child.

According to plaintiffs, Copper Lake comes with a disrep-

utable history. They claim that, since its opening in 2011, it

“has had a very high turnover rate of employees,” leading to

“over worked and untrained staff.” They further assert that

between 2012 and 2016, the facility received criticism from

multiple Wisconsin circuit court judges regarding its “sordid”

and “inhumane” treatment of juveniles. Plaintiffs claim a

state criminal probe into Copper Lake began in 2015.

Iowa juvenile courts ordered plaintiffs Paige Ray-Cluney

and Laura Reed to be placed at Copper Lake on March 10 and

June 4, 2015, respectively. At the time, both girls were sixteen

years old. Plaintiffs claim that during their stays, Copper Lake

staff subjected them to prolonged periods of “isolation,”1

1 Specifically, plaintiffs allege

that Reed spent at least thirty-four days

in isolation between August and October 2015, and another thirty to forty

days in isolation between November 2015 and February 2016. They allege

Ray-Cluney spent at least four weeks in isolation between June 29 and

Nos. 18-1429 & 18-1438 3

which involved spending approximately twenty-two out of

twenty-four hours each day in a seven-foot by ten-foot con-

crete cell furnished with only a metal cot and a thin mattress.

They allege these isolation cells had urine stains on the floor

and wall, and only one window “covered by a thick cage re-

ducing light that [could] pass through.” They claim that dur-

ing their limited periods of release, they were only allowed to

“shower, clean [their] room[s], receive 15 minutes to exercise,

receive 10-15 minutes to write a letter, and use the restroom.”

If any time remained, they were required to sit in chairs by

themselves and were “not allowed to speak.” They allege they

were not released from isolation for meals and received little

or no educational instruction. Both plaintiffs attempted sui-

cide.

In addition to solitary confinement, plaintiffs also claim

they were subjected to excessive force. Reed alleges that, dur-

ing one of her periods of isolation, a security guard pulled her

“fingers through the food tray slot in the cell door,” causing

“scrapes and bleeding.” She further asserts that, on an occa-

sion when she attempted self-harm by placing her head un-

derneath her cot, the same security guard stood on top of the

cot in order to tighten it against her neck. She also alleges the

security guard “slammed her against [her] cell wall with such

force as to leave a contusion on her head and a laceration on

her lips.” Meanwhile, Ray-Cluney alleges she was “placed in

restraints so tight that they left her arm purple” and “had her

September 14, 2015, and all but three days in isolation between September

14 and December 15, 2015. Overall, Reed believes she was held in isolation

for over two months and Ray-Cluney asserts she was in isolation for over

five months.

4 Nos. 18-1429 & 18-1438

head rammed against the wall of the cell.” Finally, both plain-

tiffs claim Copper Lake staff sprayed them with mace on mul-

tiple occasions.

B. Procedural Background

Plaintiffs separately filed suit in the Western District of

Wisconsin on August 1, 2017. They each asserted violations of

the Fourth, Eighth, and Fourteenth Amendments under 42

U.S.C. § 1983 for cruel and unusual punishment, excessive

force, and deprivation of due process. They additionally

brought common law claims for intentional infliction of emo-

tional distress and negligence. Finally, Reed alleged multiple

violations of the Iowa state constitution.

The named defendants in both cases were almost entirely

Wisconsin officials associated with Copper Lake.2 The lone

exception was Palmer. According to the complaints in each

case: the state of Iowa, by and through Palmer, contracted

with the state of Wisconsin to use the Copper Lake facility;

Palmer had custody of both plaintiffs in June 2015 pursuant

to court orders; the State of Iowa, by and through Palmer,

“monitored and received reports concerning [plaintiffs’] con-

finement at Copper Lake”; and Palmer knew or should have

known of Copper Lake’s use of isolation cells and, despite this

knowledge, failed to remove the Iowa girls, failed to ensure

2 These defendants included Copper Lake’s current and former Super-

intendent, Deputy Superintendent, Director of Security, Corrections Unit

Supervisor, and security guards, as well as the Wisconsin Administrator

of Juvenile Corrections.

Nos. 18-1429 & 18-1438 5

Copper Lake’s staff were properly trained and supervised,

and acted with deliberate indifference in doing so.3

Palmer moved to dismiss the claims against him in both

cases. He raised multiple legal objections, including: (1) lack

of personal jurisdiction; (2) forum non conveniens; (3) Eleventh

Amendment immunity; (4) failure to state a claim upon which

relief may be granted; (5) absolute immunity; (6) qualified im-

munity; (7) lack of personal responsibility; and (8) failure to

exhaust administrative remedies related to the tort claims.

Palmer also argued that the district court should abstain from

determining the contours of the state constitutional claims

raised in Reed’s complaint.

The district court concluded that it “need not address”

Palmer’s personal jurisdiction defense because it could “re-

solv[e] the suit on the merits.” Specifically, the court found

that no law clearly established “what the [C]onstitution re-

quires of a government official in [Palmer’s] position under

similar circumstances.” As a result, the court held qualified

immunity barred plaintiffs’ federal constitutional claims. The

court further dismissed plaintiffs’ common law claims for fail-

ure to exhaust administrative remedies and declined to exer-

cise supplemental jurisdiction over the remaining state con-

stitutional claims.4 This appeal followed.5

3Plaintiffs do not allege that Palmer had any knowledge of Copper

Lake’s use of excessive force.

4 Plaintiffs do not challenge this aspect of the district court’s ruling,

and they have filed a complaint in Iowa state court asserting all of their

state law claims.

5The district court entered a partial judgment in favor of Palmer pur-

suant to Federal Rule of Civil Procedure 54(b). See Fed. R. Civ. P. 54(b)

6 Nos. 18-1429 & 18-1438

II. Discussion

A. Qualified Immunity

We review the district court’s qualified immunity analysis

on a Rule 12(b)(6) motion de novo. Ewell v. Toney, 853 F.3d

911, 918 (7th Cir. 2017). In doing so, “we consider the facts,

including all reasonable inferences from them, in the light

most favorable to the nonmoving party.” Id. at 918–19.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their con-

duct does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified im-

munity balances two important interests—the need to hold

public officials accountable when they exercise power irre-

sponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties rea-

sonably.” Id. “The defense provides ‘ample room for mistaken

judgments’ and protects all but the ‘plainly incompetent and

those who knowingly violate the law.’” Green v. Newport, 868

F.3d 629, 633 (7th Cir. 2017) (quoting Wheeler v. Lawson, 539

F.3d 629, 639 (7th Cir. 2008)).

“A state official is protected by qualified immunity unless

the plaintiff shows: ‘(1) that the official violated a statutory or

constitutional right, and (2) that the right was “clearly estab-

lished” at the time of the challenged conduct.’” Kemp v. Liebel,

(“[W]hen multiple parties are involved, the court may direct entry of a

final judgment as to one or more, but fewer than all, … parties … if the

court expressly determines that there is no just reason for delay.”). Plain-

tiffs’ claims against the Wisconsin defendants remain pending.

Nos. 18-1429 & 18-1438 7

877 F.3d 346, 350–51 (7th Cir. 2017) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011)). “If either inquiry is answered in

the negative, the defendant official” is protected by qualified

immunity. Green, 868 F.3d at 633 (quoting Gibbs v. Lomas, 755

F.3d 529, 537 (7th Cir. 2014)). “In order to avoid ‘[u]nnecessary

litigation of constitutional issues’ and expending scarce judi-

cial resources that ultimately do not impact the outcome of

the case,” courts “may analyze the ‘clearly established’ prong

without first considering whether the alleged constitutional

right was violated.” Kemp, 877 F.3d at 351 (alteration in origi-

nal) (quoting Pearson, 555 U.S. at 236–37). The district court

adopted that approach here.

Under the clearly established prong, “the burden is on

plaintiffs to demonstrate the alleged violation of their [consti-

tutional] right[s] was ‘clearly established.’” Id. “To be clearly

established at the time of the challenged conduct, the right’s

contours must be sufficiently clear that every reasonable offi-

cial would have understood that what he is doing violates

that right … .” Id. (alteration in original) (quoting Gustafson v.

Adkins, 803 F.3d 883, 891 (7th Cir. 2015)). “[T]he crucial ques-

tion [is] whether the official acted reasonably in the particular

circumstances that he or she faced.” Id. (alterations in original)

(emphasis added) (quoting Plumhoff v. Rickard, 134 S. Ct. 2012,

2023 (2014)).

Ordinarily, to show that the law was “clearly established,”

plaintiffs must point to a “closely analogous case” finding the

alleged violation unlawful. Findlay v. Lendermon, 722 F.3d 895,

899 (7th Cir. 2013). They need not point to an identical case,

“but existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (per curiam) (quoting al-Kidd, 563 U.S. at

8 Nos. 18-1429 & 18-1438

741); see also Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016)

(“The law is ‘clearly established’ when ‘various courts have

agreed that certain conduct is a constitutional violation under

facts not distinguishable in a fair way from the facts presented

in the case at hand.’” (quoting Campbell v. Peters, 256 F.3d 695,

701 (7th Cir. 2001))). “[W]e look first to controlling Supreme

Court precedent and our own circuit decisions on the issue.”

Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000). If no

controlling precedent exists, “we broaden our survey to in-

clude all relevant caselaw in order to determine ‘whether

there was such a clear trend in the caselaw that we can say

with fair assurance that the recognition of the right by a con-

trolling precedent was merely a question of time.’” Id. (quot-

ing Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir.

1989)); see also al-Kidd, 563 U.S. at 742 (requiring a “robust

‘consensus of cases of persuasive authority’” (quoting Wilson

v. Layne, 526 U.S. 603, 617 (1999))).

Alternatively, “[i]n some rare cases, where the constitu-

tional violation is patently obvious, the plaintiffs may not be

required to present the court with any analogous cases.” Ja-

cobs, 215 F.3d at 767. Instead, plaintiffs can demonstrate

clearly established law by proving the defendant’s conduct

was “so egregious and unreasonable that … no reasonable

[official] could have thought he was acting lawfully.” Abbott

v. Sangamon County, 705 F.3d 706, 724 (7th Cir. 2013). Outra-

geous conduct “obviously will be unconstitutional.” Safford

Unified Sch. Dist. No. 1 v. Redding, 557 U.S 364, 377 (2009). “But

even as to action less than an outrage, ‘officials can still be on

notice that their conduct violates established law … in novel

factual circumstances.’” Id. at 377–78 (alteration in original)

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

Nos. 18-1429 & 18-1438 9

Importantly, “[b]efore we can determine if the law was

clearly established, ‘the right allegedly violated must be de-

fined at the appropriate level of specificity.’” Kemp, 877 F.3d

at 351 (quoting Wilson, 526 U.S. at 615). “The Supreme Court

has ‘repeatedly told courts … not to define clearly established

law at a high level of generality.’” Volkman v. Ryker, 736 F.3d

1084, 1090 (7th Cir. 2013) (alteration in original) (quoting al-

Kidd, 563 U.S. at 742); see, e.g., Kiesla v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam); White v. Pauly, 137 S. Ct. 548, 552

(2017) (per curiam); Mullenix, 136 S. Ct. at 308; Plumhoff, 134 S.

Ct. at 2023. Instead, “[t]he dispositive question is ‘whether the

violative nature of particular conduct is clearly established.’”

Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). In

other words, “the clearly established law must be ‘particular-

ized’ to the facts of the case.” White, 137 S. Ct. at 552 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also

Volkman, 736 F.3d at 1090 (“[T]he Seventh Circuit has long

held that ‘the test for immunity should be whether the law

was clear in relation to the specific facts confronting the public

official when he acted.’” (quoting Colaizzi v. Walker, 812 F.2d

304, 308 (7th Cir. 1987))).

B. Qualified Immunity Defenses at the Rule 12(b)(6)

Stage

Because a qualified immunity defense so closely depends

“on the facts of the case,” a “complaint is generally not dis-

missed under Rule 12(b)(6) on qualified immunity grounds.”

Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). “A mo-

tion under Rule 12(b)(6) can be based only on the complaint

itself, documents attached to the complaint, documents that

are critical to the complaint and referred to in it, and infor-

mation that is subject to proper judicial notice.” Geinosky v.

10 Nos. 18-1429 & 18-1438

City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). These

sources rarely develop a robust factual record, given that, at

the pleading stage, a plaintiff need only “state a claim to relief

that is plausible on its face.” Archer v. Chisholm, 870 F.3d 603,

612 (7th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). To state a “plausible” claim, a plaintiff need

not include every detail or fact related to the basis of her alle-

gations. Rather, she only needs to include “enough details

about the subject-matter of the case to present a story that

holds together.” Catinella v. County of Cook, 881 F.3d 514, 516

(7th Cir. 2018) (quoting Swanson v. Citibank, N.A., 614 F.3d 400,

404 (7th Cir. 2010)).

The plausibility standard creates tension at this stage of

litigation between developing the requisite facts for a well-in-

formed qualified immunity determination and preserving a

government official’s right to avoid the burdens of pretrial

matters, including discovery. See Behrens v. Pelletier, 516 U.S.

299, 308 (1996). We have recognized that tension, noting:

[I]t appears that in some cases, a complaint may

be dismissed under Rule 12(b)(6) on qualified

immunity grounds .… In that case, while the

plaintiff may have stated a claim, it is not one

“upon which relief can be granted” and a court

may properly address this purely legal question

under Rule 12(b)(6). However, in many cases,

the existence of qualified immunity will depend

on the particular facts of a given case. In those

cases, the plaintiff is not required initially to

plead factual allegations that anticipate and

overcome a defense of qualified immunity . …

The district court then has a variety of means at

Nos. 18-1429 & 18-1438 11

its disposal to move the case incrementally for-

ward in order to address the qualified immun-

ity issue at the earliest possible stage, so that a

defendant who is immune from suit is not put

through the time, effort and expense of defend-

ing himself against a claim upon which, ulti-

mately, no relief can be granted.

Jacobs, 215 F.3d at 765 n.3 (citations omitted); see also id. at 775

(Easterbrook, J., concurring in part and concurring in the

judgment) (“Rule 12(b)(6) is a mismatch for immunity and al-

most always a bad ground of dismissal.”). Other circuits have

made similar observations. See, e.g., Wesley v. Campbell, 779

F.3d 421, 433–34 (6th Cir. 2015); Thomas v. Kaven, 765 F.3d

1183, 1194 (10th Cir. 2014); Owens v. Balt. City State’s Attorneys

Office, 767 F.3d 379, 396 (4th Cir. 2014); Barnett v. Mount Vernon

Police Dep’t, 523 F. App’x 811, 813 (2d Cir. 2013); Thomas v. In-

dependence Township, 463 F.3d 285, 299 (3d Cir. 2006); Chesser

v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).

In short, “[a]sserting a qualified immunity defense via a

Rule 12(b)(6) motion … subjects the defendant to a more chal-

lenging standard of review than would apply on summary

judgment.” Thomas, 765 F.3d at 1194 (quoting Peterson v. Jen-

sen, 371 F.3d 1199, 1201 (10th Cir. 2004)). Under the former, “it

is the defendant’s conduct as alleged in the complaint that is

scrutinized for ‘objective legal reasonableness.’” Behrens, 516

U.S. at 309. Under the latter, “the plaintiff can no longer rest

on the pleadings, and the court looks to the evidence before it

(in the light most favorable to the plaintiff) when conducting

the [qualified immunity] inquiry.” Id. (citation omitted).

12 Nos. 18-1429 & 18-1438

C. Palmer’s Qualified Immunity Defense

Given this backdrop, the district court acted prematurely

in deciding Palmer’s entitlement to qualified immunity at the

motion to dismiss stage. The court found that, during the time

period alleged in the complaints, no law clearly established

“what the [C]onstitution requires of a government official in

[Palmer’s] position under similar circumstances.”

Palmer’s position is determined with reference to the well-

pleaded factual allegations in plaintiffs’ complaints, which

are taken as true and considered in the light most favorable to

plaintiffs on a Rule 12(b)(6) motion to dismiss. See Ewell, 853

F.3d at 918–19. According to the complaints, Palmer con-

tracted with the state of Wisconsin to place juveniles, includ-

ing plaintiffs, in the Copper Lake facility. The complaints fur-

ther allege that both plaintiffs were in Palmer’s custody pur-

suant to state court orders. Moreover, Palmer monitored and

received reports concerning Reed’s and Ray-Cluney’s condi-

tions of confinement at Copper Lake. Based on these reports,

plaintiffs allege Palmer “knew or should have known of the

systemic and excessive use of isolation cells at Copper Lake,”

and “[d]espite such knowledge, Palmer failed to remove the

Iowa girls placed at Copper Lake and acted with deliberate

indifference in doing so.” These allegations are sufficient to

withstand a Rule 12(b)(6) motion to dismiss.

Plaintiffs have sufficiently alleged that their constitutional

rights were violated through excessive use of isolation cells at

Copper Lake. Supreme Court precedent is not clear about

whether state juvenile detention facility conditions should be

judged under the Eighth Amendment’s Cruel and Unusual

Punishment Clause or the Fourteenth Amendment’s Due Pro-

cess Clause. See Gary H. v. Hegstrom, 831 F.2d 1430, 1431–32

Nos. 18-1429 & 18-1438 13

(9th Cir. 1987) (“The Supreme Court has not announced the

appropriate federal standards by which to judge state juvenile

detention facility conditions.”); Santana v. Collazo, 714 F.2d

1172, 1179 (1st Cir. 1983) (same). Indeed, the Court expressly

avoided deciding this question in Ingraham v. Wright, 430 U.S.

651, 669 n.37 (1977).

In a case over forty years ago, we applied the Eighth

Amendment’s cruel and unusual punishment standard to

evaluate the use of corporal punishment and tranquilizing

drugs at a juvenile correctional institution. See Nelson v. Heyne,

491 F.2d 352, 354–57 (7th Cir. 1974). Under that test, a prison’s

deprivation must be an “objectively, ‘sufficiently serious’ …

denial of ‘the minimal civilized measure of life’s necessities,’”

and the state actor “must have a ‘sufficiently culpable state of

mind.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations

omitted). Using this standard, a district court recently held, in

the context of a preliminary injunction motion, that juvenile

isolation is likely unconstitutional. See V.W. ex rel. Williams v.

Conway, 236 F. Supp. 3d 554, 584 (N.D.N.Y. 2017) (“[T]he use

of disciplinary confinement on juveniles [was] not reasonably

calculated to restore prison safety and, even when it [was],

disciplinary isolation at the [detention center] continue[d]

long after any safety concerns had been abated.”).

Meanwhile, other circuits have applied the Fourteenth

Amendment’s “more protective” Due Process Clause in eval-

uating juvenile detention center conditions. Gary H., 831 F.2d

at 1432 (evaluating management of facility for adolescent

wards of the juvenile court); see also A.J. ex rel. L.B. v. Kierst, 56

F.3d 849, 854 (8th Cir. 1995) (juvenile pretrial detainees); H.C.

v. Jarrard, 786 F.2d 1080, 1084–85 (11th Cir. 1986) (same); San-

tana, 714 F.2d at 1179–81 (juvenile residents of industrial

14 Nos. 18-1429 & 18-1438

school); Milonas v. Williams, 691 F.2d 931, 942 & n.10 (10th Cir.

1982) (private school for juvenile boys with behavioral and

mental health problems). This standard is more protective in

that “Eighth Amendment scrutiny is appropriate only after

the State has complied with the constitutional guarantees tra-

ditionally associated with criminal prosecutions.” Ingraham,

430 U.S. at 671 n.40. “Where the State seeks to impose punish-

ment without such an adjudication, the pertinent constitu-

tional guarantee is the Due Process Clause of the Fourteenth

Amendment.” Id.

To determine “the constitutionality of conditions or re-

strictions of pretrial detention” using a Fourteenth Amend-

ment due process inquiry, courts must first evaluate “whether

those conditions amount to punishment of the detainee,” be-

cause “a detainee may not be punished prior to an adjudica-

tion of guilt in accordance with due process of law.” Bell v.

Wolfish, 441 U.S. 520, 535 (1979). Still, “restrictions on liberty”

are permissible so long as they are “reasonably related to le-

gitimate government objectives and not tantamount to pun-

ishment.” Youngberg v. Romeo, 457 U.S. 307, 320 (1982); see also

Bell, 441 U.S. at 538 (“A court must decide whether the disa-

bility is imposed for the purpose of punishment or whether it

is but an incident of some other legitimate governmental pur-

pose.”). To make this determination, courts “weigh[] the indi-

vidual’s interest in liberty against the State’s asserted rea-

sons” for their restraint. Youngberg, 457 U.S. at 320.

At the time plaintiffs were allegedly in Palmer’s custody,

isolation of pre-trial juvenile detainees not “reasonably re-

lated to a legitimate governmental objective,” Bell, 441 U.S. at

539, could rise to the level of a constitutional violation. Here,

plaintiffs’ complaints plausibly allege that they were kept in

Nos. 18-1429 & 18-1438 15

isolation at Copper Lake for excessive amounts of time.

Caselaw clearly establishes that such conduct could violate

the Fourteenth and/or the Eighth Amendment.

On the present record, however, it is impossible to deter-

mine whether such a constitutional violation occurred in

plaintiffs’ cases. We know the respective complaints allege

plaintiffs spent an inordinate amount of time at Copper Lake

in isolation. However, we do not know the reasons behind

their seclusion. We therefore cannot evaluate, under the Four-

teenth Amendment, whether Palmer—or the other defend-

ants—acted reasonably pursuant to a “legitimate governmen-

tal objective” or instead unlawfully “punished” plaintiffs. See

Bell, 441 U.S. at 535, 539. Nor can we determine, under the

Eighth Amendment, whether Palmer had a “sufficiently cul-

pable state of mind.” See Farmer, 511 U.S. at 834. In sum, as

one district court recently concluded in denying a motion to

dismiss Eighth and Fourteenth Amendment claims arising

from a plaintiff’s isolated confinement at an Iowa juvenile

home:

Whether the alleged actions herein were “rea-

sonably related to a legitimate institutional in-

terest,” or were for the “legitimate purpose” of

containing Plaintiff’s violent behavior, requires a

factual inquiry that cannot be accomplished at this

stage of proceedings so long as Plaintiff has al-

leged facts that generate a plausible claim. Tak-

ing the complaint in its entirety, Defendants’

current legal arguments [did] not render im-

plausible the allegations in the complaint. Ad-

ditionally, … even if a legitimate purpose for

isolating a detainee is provided, a due process

16 Nos. 18-1429 & 18-1438

violation may still occur if the conditions im-

posed are excessive in relation to the nonpuni-

tive purpose, a further factual inquiry …. Accord-

ingly, Defendants have not shown that they are

entitled to qualified immunity on the face of the

compliant.

Turner v. Palmer, 84 F. Supp. 3d 880, 883–84 (S.D. Iowa 2015)

(emphasis added) (citation omitted). The same reasoning ap-

plies here. Plaintiffs have plausibly alleged their constitu-

tional rights were violated at Copper Lake when they were

placed in isolation “without justification.” On the face of

plaintiffs’ complaints alone, Palmer has not shown he is enti-

tled to qualified immunity.

This case involves the added wrinkle that plaintiffs were

housed in Wisconsin, not in Iowa. In other words, Palmer was

not one of the Copper Lake officials placing plaintiffs in isola-

tion. Rather, plaintiffs allege Palmer only contracted with

Wisconsin to send juveniles to Copper Lake and later “re-

ceived” and “monitored” reports regarding the juveniles sent

there. According to the district court, this made the claims

against Palmer “completely different” from other cases where

the defendants “actually controlled and operated the institu-

tion in which the abuse had occurred and ‘oversaw the use of

the isolation cells in which [the] plaintiff was confined.’” (al-

teration in original) (quoting Turner, 84 F. Supp. 3d at 882). In

the district court’s view, no law clearly establishes what the

Constitution requires of an official in Palmer’s unique pos-

ture.

Palmer’s additional degree of separation is a distinguish-

ing feature of this litigation, but at the motion to dismiss stage,

our conclusion does not change. Under DeShaney v. Winnebago

Nos. 18-1429 & 18-1438 17

County Department of Social Services, it is clearly established

that the Due Process Clause “forbids the State itself to deprive

individuals of life, liberty, or property without ‘due process

of law,’” but does not “impose an affirmative obligation on

the State to ensure that those interests do not come to harm

through other means.” 489 U.S. 189, 195 (1989). It is equally

established, however, that an exception to the DeShaney prin-

ciple arises “if the state has a ‘special relationship’ with a per-

son, that is, if the state has custody of a person, thus cutting

off alternate avenues of aid.” Monfils v. Taylor, 165 F.3d 511,

516 (7th Cir. 1998). In such cases, the State “assumes at least a

rudimentary duty of safekeeping.” Hutchinson ex rel. Baker v.

Spink, 126 F.3d 895, 900 (7th Cir. 1997).

On multiple occasions, we have applied the “special rela-

tionship” exception to cases where “the State removes a child

from her natural parents.” Id.; see also Camp v. Gregory, 67 F.3d

1286, 1296–98 (7th Cir. 1995); K.H. v. Morgan, 914 F.2d 846, 849

(7th Cir. 1990). Thus, “once a state removes a child from her

parents’ custody,” it “assumes a duty of safekeeping” due to

the restraints it places on the liberty of the child. Berman v.

Young, 291 F.3d 976, 982 (7th Cir. 2002), as amended on denial of

reh’g (June 26, 2002). Such a duty is violated when the State

“place[s] a child in custody with foster parents it knows are

incompetent or dangerous.” Hutchinson, 126 F.3d at 900; see

also Waubanascum v. Shawano County, 416 F.3d 658, 665 (7th

Cir. 2005).

This case differs from Berman and Waubanascum; plaintiffs

were placed at an out-of-state institution, not a private foster

care home. Nevertheless, in K.H., we defined the relevant con-

stitutional right as “the right of a child in state custody not to

18 Nos. 18-1429 & 18-1438

be handed over by state officers to a foster parent or other cus-

todian, private or public whom the state knows or suspects to

be a child abuser.” 914 F.2d at 852 (emphasis added and then

removed); see also id. at 851 (“[T]he Constitution requires the

responsible state officials to take steps to prevent children in

state institutions from deteriorating physically or psychologi-

cally.” (emphasis added)). This language encompasses

Palmer’s alleged role here.6 Allegations against Palmer are

6The D.C. Circuit’s decision in Smith v. District of Columbia, 413 F.3d

86 (D.C. Cir. 2005), reinforces this conclusion. There, the District of Colum-

bia placed delinquent youths in so-called “independent living programs”

run by private companies: such placements were made, and could only be

changed by, court order. Id. at 89, 91. One such youth placed in this pro-

gram was murdered while living at his assigned apartment. Id. at 90. The

deceased’s grandmother filed due process claims against not only the pri-

vate apartment complex and the independent living program, but also the

District. Id. The District argued it was not liable because the deceased

could not “meaningfully be said to have been in the District’s custody

when he was murdered” given this contractual relationship with the pri-

vate company housing the deceased. Id. at 94. The D.C. Circuit disagreed:

“[T]he District’s legal custody over [the deceased was] a good indicator

that it had a duty to look after him.” Id. (emphasis added). It analogized

the case to decisions “holding that children in foster care are in state cus-

tody for substantive due process purposes and … that in placing them in

foster homes and monitoring their progress, the state owes them a consti-

tutional duty of care.” Id. at 95 (collecting cases). According to the court,

“[l]ike such children, [the deceased] not only looked to the government as

primary guardian of his needs, but, absent District approval, also lacked

freedom to seek alternate arrangements—precisely the two circumstances

courts have found create … custody in the foster care situation.” Id.

This case closely resembles Smith. Just as the District retained legal

custody of the deceased in Smith, plaintiffs here allege that Palmer and the

Iowa Department of Human Services retained legal custody for their well-

being. Although Palmer argues that plaintiffs’ placement was technically

made—and controlled—by judicial rather than executive order, that same

Nos. 18-1429 & 18-1438 19

not limited to his role in signing the contract that led to plain-

tiffs’ placement at Copper Lake: Plaintiffs further allege that

Palmer retained custody and received reports detailing their

excessive isolation, yet took no steps to remove them from the

facility and was deliberately indifferent in doing so.

The district court critiqued plaintiffs’ failure to “provide

any details” about the reports Palmer allegedly received or

what his alleged monitoring entailed. However, as noted

above, plaintiffs do not need to provide such details to cross

the “plausibility” threshold at this stage: they need only in-

clude enough facts in their complaint “to present a story that

holds together.” Catinella, 881 F.3d at 516 (quoting Swanson

614 F.3d at 404); see also Archer, 870 F.3d at 612 (“A claim has

the requisite plausibility [to survive a motion to dismiss]

‘when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.’” (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009))). Construing the well-pleaded facts and

reasonable inferences in plaintiffs’ favor, as we must, it can be

reasonably inferred that Palmer had custody of plaintiffs

while they were at Copper Lake and that he had the

knowledge, responsibility, and influence to request removal

of plaintiffs from the facility.

Palmer’s remaining objections are undermined by the pre-

liminary stage of the proceedings. He argues, for example,

that he “did not have direct custody of the Plaintiffs.” But this

is directly contradicted by plaintiffs’ complaints, which state

fact did not prevent the Smith court from holding the District liable. Nor

did the fact that the District contracted its day-to-day hands-on responsi-

bilities to an outside entity, which is precisely what Palmer did here,

change the court’s decision.

20 Nos. 18-1429 & 18-1438

they were both in “custody of … Palmer” during their time at

Copper Lake. He further complains that plaintiffs “cannot

show that … [he] actually knew either girl was at risk of harm

at the time of her placement.” Maybe so. At this juncture,

however, we are tied to plaintiffs’ well-pleaded allegations,

which expressly allege that Palmer “knew or should have

known of the systemic and excessive use of isolation cells.”

Of course, the above discussion does not preclude Palmer

from securing qualified immunity later.7 It is entirely possi-

ble, for example, that plaintiffs did not endure the extent of

isolation that they allege. It is equally feasible that such soli-

tary confinement was ordered pursuant to a legitimate gov-

ernmental objective, or that plaintiffs will be unable to mar-

shal evidence to show that defendants’ actions substantially

departed from accepted standards. Plaintiffs might also over-

state Palmer’s true level of involvement or his actual or con-

structive knowledge of the allegedly unconstitutional activ-

ity. If so, the district court would possess the authority to re-

visit the issue. In the meantime, however, this case is one that

would greatly benefit from a more robust record. In short, alt-

hough qualified immunity defenses should be decided at “the

earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S.

224, 227 (1991), the determination whether qualified immun-

ity exists for Palmer depends on “particular facts” that are not

yet in the record. See Jacobs, 215 F.3d at 765 n.3.

7 It also does not preclude Palmer from reasserting any of his defenses

that the district court declined to address on the initial motion to dismiss,

including his personal jurisdiction defense. Cf. Transamerica Ins. Co. v.

South, 125 F.3d 392, 399 (7th Cir. 1997) (failure of an appellee to raise on

appeal all alternative grounds for affirming district court’s decision does

not operate as a waiver).

Nos. 18-1429 & 18-1438 21

Such a result does not condemn the district court to un-

necessary litigation or impede Palmer’s potential right to be

free from suit. The district court has “a variety of means … to

move the case incrementally forward in order to address the

qualified immunity issue at the earliest possible stage.” Id. For

instance, “[t]he Rule 12(e) motion for a more definite state-

ment is perhaps the best procedural tool available to the de-

fendant to obtain the factual basis underlying a plaintiff’s

claim for relief.” Thomas, 463 F.3d at 301. Alternatively, if ad-

ditional evidence is needed to develop the factual record, the

district court may “limit the timing, sequence, frequency, and

extent of that discovery under Rule 26.” Id. And of course, de-

fendants can move for summary judgment under Rule 56. Id.

III. Conclusion

For the foregoing reasons, we REVERSE the judgment of the

district court in favor of Palmer on plaintiffs’ claims against

him and REMAND for further proceedings consistent with this

opinion.