In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1002
ABDELKADER RACHID BELBACHIR, administrator of the estate
of HASSIBA BELBACHIR, deceased,
Plaintiff‐Appellant,
v.
COUNTY OF MCHENRY, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 06 C 1392 — Philip G. Reinhard, Judge.
____________________
ARGUED JUNE 6, 2013 — DECIDED AUGUST 12, 2013
____________________
Before POSNER, ROVNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Hassiba Belbachir committed sui‐
cide in McHenry County Jail, a local Illinois jail in which she
was confined at the request of federal authorities pending a
removal hearing. An Algerian citizen, aged 27, she had en‐
tered the United States as a visitor in November 2004. She
overstayed and in February of the following year flew from
Chicago to England (we don’t know why), where the immi‐
2 No. 13‐1002
gration authorities detained her for about a week and then
returned her to Chicago. U.S. immigration authorities took
her into custody upon arrival and placed her in the McHen‐
ry County Jail, which has a contract with the federal gov‐
ernment to house persons detained by order of those author‐
ities. She was to remain there until her removal hearing, an‐
ticipated to take place within a couple of weeks. She planned
to ask at the hearing for asylum in the United States on the
ground that she had a well‐founded fear of being persecuted
should she be returned to Algeria.
Her first day in the jail was March 9; she killed herself on
March 17. Her estate brought suit against a variety of de‐
fendants under both 42 U.S.C. § 1983—arguing that they had
deprived Belbachir of her life without due process of law—
and Illinois tort law. The district judge relinquished the sup‐
plemental state law claims when he granted summary
judgment in favor of all the defendants with respect to the
section 1983 claims. The plaintiff has appealed from the dis‐
missal only of six of the defendants: McHenry County itself;
the county sheriff and the director of the McHenry County
Jail; and three employees of the Centegra Health System, a
private firm that the County had hired to provide medical
services at the jail.
The defendants argue to begin with that the doctrine of
the law of the case requires their dismissal because the
ground on which the district court dismissed the other de‐
fendants is equally applicable to them. Even if it is, the ar‐
gument fails. The doctrine of law of the case “never blocks a
higher court from examining a decision of an inferior tribu‐
nal.” Payne v. Churchich, 161 F.3d 1030, 1038 n. 9 (7th Cir.
1998) (internal quotation marks and citations omitted); see
No. 13‐1002 3
also Marseilles Hydro Power LLC v. Marseilles Land & Water
Co., 481 F.3d 1002, 1004 (7th Cir. 2007). A plaintiff’s decision
to abandon a defendant on appeal, when other defendants
remain in the case, is not an acknowledgment that the dis‐
missal was sound, and is therefore not a basis on which the
remaining defendants can plead waiver or forfeiture.
The plaintiff rightly bases her federal claims on 42 U.S.C.
§ 1983, which imposes tort liability on state and local em‐
ployees, and sometimes their employer, and sometimes oth‐
er state and local agents, for violating federal rights. Had the
contract between the federal government and McHenry
County to house aliens suspected of being forbidden to enter
or remain in the United States made the county jail a federal
instrumentality and its personnel (maybe including Cente‐
gra’s employees, though they were not employees of the jail)
federal officers, the jail staff would be suable for federal con‐
stitutional violations under the doctrine of Bivens v. Six Un‐
known Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), rather than under section 1983. But the contract
did not federalize McHenry County Jail, which continued to
house nonfederal as well as federal prisoners. Cases similar
to this, allowing section 1983 claims by federal prisoners
against county or city employees, are legion. See, e.g., Hunter
v. Amin, 583 F.3d 486 (7th Cir. 2009); Lewis v. Downey, 581
F.3d 467, 471 n. 3 (7th Cir. 2009); Ortiz v. Downey, 561 F.3d
664 (7th Cir. 2009); Grieveson v. Anderson, 538 F.3d 763 (7th
Cir. 2008); Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010); Wil‐
son v. Blankenship, 163 F.3d 1284 (11th Cir. 1998). And cf.
Logue v. United States, 412 U.S. 521, 529–30 (1973), a jail‐
suicide suit under the Federal Tort Claims Act. See 28 U.S.C.
§ 1346.
4 No. 13‐1002
Although Centegra’s employees are not public employ‐
ees, they rightly do not deny that in performing functions
that would otherwise be performed by public employees,
they were acting under color of state law and therefore could
be sued under section 1983. See, e.g., West v. Atkins, 487 U.S.
42, 49–54 (1988); Rice ex rel. Rice v. Correctional Medical Ser‐
vices, 675 F.3d 650, 670–73 (7th Cir. 2012); Rodriguez v. Plym‐
outh Ambulance Service, 577 F.3d 816, 824–26 (7th Cir. 2009);
Conner v. Donnelly, 42 F.3d 220, 224–25 (4th Cir. 1994). Oth‐
erwise state and local government could immunize itself
from liability under section 1983 by replacing its employees
with independent contractors.
Arriving at the merits, we meet at the threshold the ques‐
tion of the proper standard for determining liability. The
plaintiff argues that for want of any judicial or even quasi‐
judicial determination that Belbachir was or might be a crim‐
inal—her detention in the jail was a civil commitment—the
proper standard of liability is that of reasonableness, the
standard under the Fourth Amendment (made applicable to
state action by interpretation of the due process clause of the
Fourteenth Amendment) for the seizure of a person. See,
e.g., Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011);
Sallenger v. City of Springfield, 630 F.3d 499, 503 (7th Cir.
2010); Aldini v. Johnson, 609 F.3d 858, 866 (6th Cir. 2010). The
defendants, seconded by the district judge, contend that the
proper standard is “deliberate indifference” (to the risk of
suicide), a standard they interpret as requiring knowledge
(not just suspicion or reason to know) that the risk is “sub‐
stantial.” And there are cases that say that too. E.g., Estate of
Miller v. Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012); Porro v.
Barnes, supra, 624 F.3d at 1325–26; Edwards v. Johnson, 209
F.3d 772, 778 (5th Cir. 2000).
No. 13‐1002 5
The Fourth Amendment forbids unreasonable searches
and seizures. The immigration authorities, reasonably be‐
lieving that Belbachir was inadmissible to the United States,
were entitled to detain her pending the hearing on her appli‐
cation for asylum; in fact the applicable regulation required
them to do that. 8 C.F.R. § 235.3(b)(4)(ii). As the validity of
the regulation, and therefore of her detention, is not chal‐
lenged, she was in the same position as a lawfully arrested
pretrial detainee, Porro v. Barnes, supra, 624 F.3d at 1325–26;
Edwards v. Johnson, supra, 209 F.3d at 778, who cannot com‐
plain of an unreasonable seizure in violation of the Fourth
Amendment but is entitled, by the due process clause of the
Fifth or Fourteenth Amendments, to at least as much protec‐
tion as convicted criminals are entitled to under the Eighth
Amendment, City of Revere v. Massachusetts General Hospital,
463 U.S. 239, 244 (1983); Rice ex rel. Rice v. Correctional Medical
Services, supra, 675 F.3d at 664; Gibson v. County of Washoe,
290 F.3d 1175, 1187 (9th Cir. 2002); Boswell v. County of Sher‐
burne, 849 F.2d 1117, 1120–21 (8th Cir. 1988)—namely protec‐
tion from harm caused by a defendant’s deliberate indiffer‐
ence to the detainee’s safety or health. See, e.g., City of Revere
v. Massachusetts General Hospital, supra, 463 U.S. at 244; King
v. Kramer, 680 F.3d 1013, 1017 (7th Cir. 2012); Padilla v. Yoo,
678 F.3d 748, 759 (9th Cir. 2012); Ramos v. Patnaude, 640 F.3d
485, 489 (1st Cir. 2011). In Forrest v. Prine, 620 F.3d 739, 744
(7th Cir. 2010), we added to “at least”—“and probably
more.”
Belbachir was detained only because an alien determined
to be inadmissible upon arrival in the United States who
seeks asylum is required to be detained until his or her asy‐
lum application is ruled on. She was not a convicted crimi‐
nal; and “persons who have been involuntarily committed
6 No. 13‐1002
are entitled to more considerate treatment … than criminals
whose conditions of confinement are designed to punish.”
Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982). True, Romeo
had been committed because of profound mental retardation
rather than because of any violation of law. He may there‐
fore have deserved greater protection than a person who
may well be an illegal alien, which was Belbachir’s status,
though she had a shot at asylum. She might be analogized
instead to a person who having been lawfully arrested and
failed to make bail is being held in jail pending trial. But that
person will have received a probable cause hearing before a
judicial officer within 48 hours of arrest. County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991). Belbachir was detained
indefinitely without any hearing.
By depriving her for an indefinite time of any source of
protection (including protection against herself) other than
persons employed by or working at or managing the jail, the
jail personnel became obligated by ordinary tort principles
to provide her with reasonable care. Dezort v. Village of
Hinsdale, 342 N.E.2d 468, 472–73 (Ill. App. 1976); Gordon v.
City of New York, 517 N.E.2d 1331, 1332 (N.Y. 1987) (per curi‐
am); Thornton v. City of Flint, 197 N.W.2d 485, 493 (Mich.
App. 1972); Restatement (Second) of Torts § 314A(4) (1965).
Neither the guards nor the members of the medical staff
were involved in the decision to detain her; but they were
her custodians, responsible therefore for her safety.
But ordinary tort principles do not govern suits charging
federal constitutional torts. If we assimilate Belbachir’s case
not to that of Romeo or McLaughlin but to that of a prison
inmate, then the plaintiff must prove not only that the de‐
fendants by detaining Belbachir deprived her of an alterna‐
No. 13‐1002 7
tive source of protection from danger but also that in failing
to protect her (as only they could do) they acted with delib‐
erate indifference to the danger, though if the danger was
obvious the defendants’ deliberateness (that is, their
knowledge of the risk) could be inferred. Farmer v. Brennan,
511 U.S. 825, 842–43 (1994); Doe v. St. Francis School District,
694 F.3d 869, 871 (7th Cir. 2012); Estate of Miller v. Tobiasz, su‐
pra, 680 F.3d at 990; Prude v. Clarke, 675 F.3d 732, 735 (7th Cir.
2012); Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009).
We do not have to choose among standards of care in this
case, however. Even under the toughest possibly applicable
standard, that of deliberate indifference, one defendant, Vic‐
ki Frederick, should not have been dismissed from the suit;
and even under the most lenient standard, that of Youngberg
v. Romeo, which resembles though is not identical to a negli‐
gence standard, see 457 U.S. at 319–25, the other defendants
were properly dismissed. (As we’ll see, they may have been
negligent, but no causal relation between their negligence
and the suicide was shown.)
We begin with deliberate indifference and defendant
Frederick—a licensed clinical social worker employed by
Centegra—noting first that the application of the standard of
deliberate indifference varies with circumstances, as this
case illustrates. Had Belbachir been a known violent crimi‐
nal, security needs might have made it difficult for the
guards and medical personnel to provide her with the same
level of protection, including protection from herself, as
would be possible in a different environment. If the risk of
suicide is enhanced by isolation, nevertheless regard for the
safety of other prisoners may preclude allowing a prisoner
to have a cellmate. But this is not such a case.
8 No. 13‐1002
The suicide rate in jails has fallen a great deal in recent
years; it was estimated to be 9 times the rate in the general
population in 1988 and “only” 3 times that rate in 2005.
Lindsay M. Hayes, National Study of Jail Suicide: 20 Years Later
46 (National Center on Institutions and Alternatives, April
2010). Yet even the lower ratio is frighteningly high. And the
risk of a jail suicide is concentrated in the first week of deten‐
tion—48 percent of jail suicides occur then. Christopher J.
Mumola, Suicide and Homicide in State Prisons and Local Jails 8
(U.S. Bureau of Justice Statistics, Aug. 2005). Belbachir killed
herself on the eighth day.
She was not a criminal and was no danger to any person
in the jail, whether staff member, detainee, or visitor. She
was an obvious suicide risk who should have been hospital‐
ized or at least placed on suicide watch, during which a
guard would have glanced into her cell every 10 minutes.
There are more elaborate forms of suicide watch (see “Sui‐
cide Watch,” Wikipedia, http://en.wikipedia.org/wiki/
Suicide_watch (visited Aug. 8, 2013))—for it needn’t take 10
minutes to kill oneself. But there is no contention that the
jail’s method of suicide watch was inadequate, let alone con‐
stitutionally deficient.
We don’t have to recite the depressing facts that culmi‐
nated in her strangling herself with her socks. It is enough
simply to reproduce at the end of this opinion the report of
the intake screening by a guard and the mental health pro‐
gress notes by defendant Frederick—the only potentially
culpable Centegra employee, as we’ll see.
The guard who filled out the intake report changed Bel‐
bachir’s answer “yes” to the question “Are you currently ex‐
tremely depressed or feeling suicidal?” to “no.” He stated in
No. 13‐1002 9
his deposition that he had simply made a mistake initially,
in circling “yes” when he meant “no.” Maybe so, but a jury
would not have to believe him. It might find that he’d been
afraid of getting into trouble by having answered “yes” but
then having failed to place Belbachir on suicide watch, and
so he changed “yes” to “no.” There is conflicting evidence on
when he changed it. He is not, however, a defendant.
Frederick’s mental health progress notes, composed on
March 14, three days before Belbachir’s suicide, on the basis
of an interview that Frederick had conducted with Belbachir
earlier that day, stated that Belbachir was suicidal and suf‐
fering from a “major depressive disorder”—a warning sign
for suicide—and described in detail a host of deeply alarm‐
ing symptoms. Frederick denigrates the gravity of her notes
by arguing—what in another context would be comical—
that Belbachir had denied having a specific suicide plan. The
implication is that if Belbachir had said, “I intend to commit
suicide as soon as I formulate a specific plan for how to do
so, but not before,” Frederick would have replied, “okay, but
tell us when you have devised your plan so that we can pre‐
vent your carrying it out,” but that otherwise Frederick was
entitled to do nothing.
The intake report is dated March 9; the mental health
progress notes are dated five days later. The deterioration in
Belbachir’s mental state is apparent from a comparison of
these documents, which we append to this opinion. Freder‐
ick did not report the contents of her mental health progress
notes to any of the guards. And despite the alarming con‐
tents of those notes, neither she nor any other member of the
medical staff had any further contact with Belbachir after
March 14, three days before her death. Frederick denies hav‐
10 No. 13‐1002
ing seen the intake report, although it was in Belbachir’s
medical file, to which Frederick had access.
The risk of suicide was obvious to Frederick. The defend‐
ants argue that the risk was small. That is imprecise. The
risk, in the sense of the probability that it would materialize
(5 percent, 20 percent, etc.), was unknown. But when an ad‐
verse consequence is very great, the failure to take a simple,
inexpensive, obvious, and indeed prescribed measure to
avert it is inexcusable. In economic terms, an expected loss
can be expressed as P x L, where P is the probability that the
loss will occur and L is the magnitude of the loss if it occurs.
Even if the probability is low, if the loss if the probability
materializes is very great, as it was here, and the burden (i.e.,
cost), B, of preventing the event causing the loss (the suicide)
is very low, as it seems to have been here, as well, the failure
to take preventive action may be negligent (if B is smaller
than P x L—the famous Hand formula for negligence, United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)),
or worse than negligent if B is much lower than P x L, as ap‐
pears to have been the case here too. And even if the varia‐
bles cannot be quantified, often they can at least be approx‐
imated.
The defendants could have placed Belbachir in a mental
hospital or at least on suicide watch. These were simple and
obvious precautions against a risk of suicide. A severely de‐
pressed person who has hallucinations, acute anxiety, and
feelings of hopelessness and helplessness and who cries con‐
tinually, talks incessantly of death, and is diagnosed as sui‐
cidal, is in obvious danger, and if the danger (known to a
defendant) can be averted at slight cost, the failure to try to
avert it is willful. Cavalieri v. Shepard, 321 F.3d 616, 620–21
No. 13‐1002 11
(7th Cir. 2003); Sanville v. McCaughtry, 266 F.3d 724, 737–38
(7th Cir. 2001); Clouthier v. County of Contra Costa, 591 F.3d
1232, 1244–45 (9th Cir. 2010); Coleman v. Parkman, 349 F.3d
534, 539 (8th Cir. 2003); Comstock v. McCrary, 273 F.3d 693,
704, 709–10 (6th Cir. 2001).
The district judge reviewed the facts in detail but regard‐
ing the medical staff concluded simply that none of them
“subjectively knew [that Belbachir] was at substantial risk of
committing suicide.” But as the judge didn’t explain what he
meant by “substantial” in this context we can give no weight
to his conclusion. Nor are the facts so one‐sided as to justify
taking from a jury the issue of defendant Frederick’s refusal
to act in the face of a significant risk of suicide known to her.
The other Centegra defendants, however, were properly
dismissed, and would have been even under a negligence
standard. The nurse who found Belbachir dead in her cell,
and whom the plaintiff accuses of having exhibited willful
disregard for Belbachir’s welfare by failing to attempt cardi‐
opulmonary resuscitation, cannot be held liable. The attempt
would have done no good. Belbachir was already dead, as
confirmed by a prompt attempt to resuscitate her by means
of a defibrillator, which registered no pulse. Thus an elemen‐
tary requirement of liability—causation—was missing.
As for Centegra Nurse Manager Kaplan (Frederick’s
boss), there is no evidence that she knew that Belbachir was
suicidal. She treated Belbachir for panic attacks and anxiety,
and recommended both that she be given a roommate
(which she was, initially) and that she be transferred to the
“med pod” (the part of the jail in which detainees requiring
medical treatment were confined); and that was also done.
But Frederick didn’t tell Kaplan that Belbachir was suicidal.
12 No. 13‐1002
Kaplan didn’t review Frederick’s notes until after Belbachir’s
death, but there is no evidence that her failure to do so was a
dereliction of duty.
Last we consider whether McHenry County may also be
liable for failing to prevent Belbachir’s suicide. None of the
guards is a defendant, and the county sheriff is sued only in
his official capacity, which means that the suit against him is
really against the County, the government agency that em‐
ploys him. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985);
Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008). The
jail’s director (the only other County employee named as a
defendant) is sued in his personal capacity. But there is no
evidence of his complicity in the acts (or rather omissions to
act) that failed to reduce the risk of suicide to Belbachir, so
we affirm his dismissal from the case.
The judge said that the County could not be liable unless
one of its employees was. That’s incorrect. What’s true is
that if a County employee were liable, the County itelf
would not be liable merely by virtue of the doctrine of re‐
spondeat superior; the doctrine is inapplicable in section
1983 cases. But an institution can violate section 1983 just as
an individual can.
The plaintiff complains that the County failed to provide
annual training to its jail staff on how to recognize the risk of
suicide (the members of the staff did receive such training
when they were hired), failed to have a written suicide‐
prevention policy, and lacked policies governing communi‐
cation between the medical staff and the guards. Granted
that the sheriff, the County’s policymaker regarding the jail,
knew of the suicide risk to prisoners, especially new prison‐
ers—there had been a number of suicide attempts in the
No. 13‐1002 13
previous 10 years (though precisely how many we don’t
know)—nevertheless the grounds on which the plaintiff ac‐
cuses the sheriff of deliberate indifference to the risk of sui‐
cide are thin. The facts in cases in which a county jail or oth‐
er local jail (or its sheriff) have been held liable for deliberate
indifference to prisoners’ safety or health are much more fa‐
vorable to the plaintiff than the facts in this case. See Thomas
v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 302–04 (7th Cir.
2010); Duvall v. Dallas County, 631 F.3d 203, 208–09 (5th Cir.
2011) (per curiam); Long v. County of Los Angeles, 442 F.3d
1178, 1188–89 (9th Cir. 2006); Blackmore v. Kalamazoo County,
390 F.3d 890, 900 (6th Cir. 2004).
It’s difficult to see why formal policies would be neces‐
sary to assure adequate communication between the guards
and the members of the medical staff, since they work side
by side. More troublesome is the failure either to have pro‐
vided annual training or to have had a written policy; with
neither, a lot of weight was being placed on guards’
memory, though no doubt the suicide attempts jogged their
memory. But at worst the sheriff’s failure to take the addi‐
tional measures that the plaintiff thinks necessary was negli‐
gent, and maybe not even that. For while the immigration
authorities, who monitor the jail‘s treatment of its federal
prisoners, rated the jail’s suicide‐prevention policy “defi‐
cient” in 2002, they rated it acceptable in both 2003 and (the
last evaluation before Belbachir committed suicide) 2004.
Shortly after the suicide, it is true, the immigration authori‐
ties, in what may be an example of hindsight bias, found
fault with the jail’s suicide prevention policies for (1) forgo‐
ing annual training of the jail staff in suicide prevention; (2)
having only an incomplete or inconsistent policy governing
intake screenings; (3) lacking written procedures on when to
14 No. 13‐1002
place detainees on, or remove them from, suicide watch; and
(4) sometimes allowing guards to perform the required 10‐
minute checks of prisoners on suicide watch by intercom ra‐
ther than visually. But there is no evidence that the sheriff
was aware of any of these failures except the first.
And even if the sheriff was culpable for failing to discov‐
er and correct the deficiencies argued by the plaintiff, there
is no evidence that correcting them before Belbachir arrived
at the jail would have prevented her suicide. Once again a
causal relation between fault and injury is missing. The criti‐
cal failure to prevent Belbachir’s suicide occurred when de‐
fendant Frederick, having decided that Belbachir was not
suicidal, failed to tell the guards to put her on suicide watch.
Two of the three deficiencies of which the plaintiff com‐
plains—the absence of annual training and of a written sui‐
cide‐prevention policy—are addressed to the guards rather
than to the medical staff. The third—the absence of a policy
governing communication between the medical staff and the
guards—could not have played a causal role either, because
Frederick, not thinking that Belbachir was a suicide risk, had
no warning to communicate to the guards.
The judgment must be reversed and the case remanded
for trial, limited however to defendant Frederick. The dis‐
missal of the supplemental state law claims against Centegra
and its employees is vacated as well, since the premise of the
dismissal was the dismissal of all the federal claims, and we
are restoring one of them.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
No. 13‐1002 15
APPENDIX: INTAKE QUESTIONNAIRE AND MENTAL HEALTH
PROGRESS NOTES
16 No. 13‐1002
No. 13‐1002 17
18 No. 13‐1002