226 F.3d 876 (7th Cir. 2000)
Gregory May, Plaintiff-Appellee,v.Michael F. Sheahan, Defendant-Appellant.
No. 99-3140
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 2, 2000Decided September 8, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 C 0395--David H. Coar, Judge.[Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Evans and Williams,  Circuit Judges.
Williams, Circuit Judge.


1
Pretrial detainee  Gregory May brought suit against Cook County  Sheriff Michael Sheahan and unnamed Sheriff's  Department employees, alleging that the  conditions of confinement faced by detainees  taken to Cook County Hospital are  unconstitutional in several respects, as well as  illegal under the Americans with Disabilities Act  (ADA). Sheahan moved to dismiss May's suit in the  district court on a variety of grounds, including  qualified immunity. The district court concluded  that Sheahan has qualified immunity from May's  ADA claim, but otherwise denied Sheahan's motion  to dismiss. Sheahan has filed this interlocutory  appeal to challenge the district court's  rejection of his qualified immunity defense with  respect to May's surviving claims. We affirm.


2
* In early January 1999, Gregory May was arrested  for possession of a controlled substance. Unable  to post bond, May was held at Cook County Jail in  the custody of Cook County Sheriff Michael  Sheahan, who oversees the jail. Seven days later,  May, who suffers from AIDS, was taken by  ambulance to Cook County Hospital. At the  hospital, May claims he was subject to various  Sheriff's Department policies that violated his  rights.


3
One such policy allegedly requires hospital  detainees to be shackled, hand and foot, to their  beds despite the 24-hour presence of an armed  guard. May claims that as a result of this policy  he has been shackled to his bed 24 hours-a-day,  which has caused him physical and emotional pain  and has impeded his ability to assist in his own  defense. Another policy supposedly provides that  hospital detainees will not be taken to assigned  court dates and will not be otherwise  accommodated (by telephone or video conference,  for example). Pursuant to this policy, May claims  that he has been unable to present a motion to  reduce his bond or attend any court appearances.  Still other policies allegedly restrict or deny  hospital detainees access to their lawyers,  visitors, legal materials, telephones,  typewriters or computers, books and magazines,  and recreational activities. According to May,  because of these policies he has been denied  access to his attorney, has been unable to  receive visitors, has been prevented from  assisting in his own defense, and has had limited  or no access to various ordinary amenities of  confinement in Cook County Jail.


4
Based on these allegations, May asserted four  claims against Sheriff Sheahan: (1) that the  different treatment afforded jail detainees and  hospital detainees violates his constitutional  right to equal protection; (2) that Sheahan's  restrictive hospital detainee policies violate  his constitutional right of access to the courts;  (3) that Sheahan's policy of shackling all  hospital detainees to their beds around the clock  violates his constitutional right to freedom from  bodily restraint; and (4) that Sheahan's  restrictive hospital detainee policies violate  the ADA. Sheahan filed a motion to dismiss May's  complaint under Fed. R. Civ. P. 12(b)(6),  arguing, among other things, that qualified  immunity protected him from liability. The  district court granted Sheahan's motion with  respect to May's ADA claim against Sheahan in his  individual capacity on qualified immunity  grounds, but denied the motion in all other  respects. Exercising his right to take an  interlocutory appeal from an order rejecting a  qualified immunity defense, see Mitchell v.  Forsyth, 472 U.S. 511, 524-30 (1985), Sheahan now  appeals the district court's qualified immunity  rulings on May's three constitutional claims.

II

5
Before we come to the merits of Sheahan's  appeal, we must address a jurisdictional  question. The order Sheahan appeals decided a  motion to dismiss directed at May's Amended  Complaint. While this appeal was pending,  however, May twice further amended his complaint,  both times with the district court's permission,  so that his Third Amended Complaint now appears  to be the operative complaint in the district  court.1 If these subsequent amended complaints  have, in fact, superseded May's original Amended  Complaint, the present appeal would be moot  because there would no longer be a live dispute  over whether Sheahan is entitled to qualified  immunity based on the allegations in the Amended  Complaint. Cf. Chan v. Wodnicki, 67 F.3d 137, 140  (7th Cir. 1995) (fact that trial occurred  rendered pre-trial appeal moot); 13A Charles Alan  Wright et al., Federal Practice and Procedure  sec. 3533.10, at 436 (2d ed. 1984). Thus, this  appeal would have to be dismissed for lack of  jurisdiction. See Arizonans for Official English  v. Arizona, 520 U.S. 43, 67-74 (1997); Wright et  al., supra, sec. 3533.10, at 436.


6
Such a result, however, depends on whether  May's second and third amended complaints  supersede his original Amended Complaint, a  question that turns on the district court's  authority to accept the second and third amended  complaints despite the pendency of this appeal.  As a general matter, a notice of appeal "divests  the district court of its control over those  aspects of the case involved in the appeal."  Griggs v. Provident Consumer Discount Co., 459  U.S. 56, 58 (1982). Under this rule, the district  court retains jurisdiction to act only if the  order being appealed or the proceeding before the  district court is a discrete matter ancillary to  the issues under consideration in the other  court. Kusay v. United States, 62 F.3d 192, 193-  94 (7th Cir. 1995).


7
Applying this rule to interlocutory qualified  immunity appeals under Mitchell v. Forsyth,  supra, Apostol v. Gallion, 870 F.2d 1335, 1337-38  (7th Cir. 1989), held that a notice of appeal  presumptively deprives the district court of  jurisdiction to proceed with a trial on the  merits of the claims on appeal. The Apostol court  concluded that whether a public official  asserting immunity should face a trial "is  precisely the aspect of the case involved in the  appeal" because the ultimate question in a  Forsyth appeal is whether a public official  should have to undergo the burdens of litigation.  870 F.2d at 1338 (internal quotations omitted).  In this appeal, we face the related but  unresolved issue of whether a district court  retains jurisdiction to allow proceedings short  of trial to go forward during the pendency of a  proper Forsyth appeal.


8
To resolve this issue we must determine whether  such proceedings are "aspects of the case  involved in the appeal." In the years since  Apostol, the Supreme Court has made clear that a  Forsyth appeal implicates more than just a public  official's right to avoid a trial, it also  protects a public official from burdensome  pretrial proceedings, including, most notably,  discovery. Behrens v. Pelletier, 516 U.S. 299,  305-08 (1996). Thus, there can be no doubt that  a Forsyth appeal divests a district court of the  authority to order discovery or conduct other  burdensome pretrial proceedings.


9
But what about a district court's authority to  accept an amended complaint? It might be argued  that the filing of an amended complaint places  little or no particular burden on a defendant  public official and, thus, does not involve (and  is ancillary to) whether the public official  should have to undergo the burdens of litigation.  Moreover, allowing a district court to accept an  amended complaint during the pendency of a  Forsyth appeal might better conserve judicial  resources on appeal by short-circuiting (that is,  making moot) any appeal involving a complaint on  which the plaintiff no longer wishes to stand.  Under such a rule, successive Forsyth appeals  involving successive complaints would be less  likely.


10
Ultimately, however, these arguments are not  persuasive. To begin with, an order allowing the  plaintiff to file an amended complaint that  supersedes the complaint at issue in a pending  Forsyth appeal plainly implicates "an aspect of  the case involved in the appeal." The question a  court of appeals must answer in a Forsyth appeal  following the denial of a motion to dismiss is  whether the defendant public official is entitled  to qualified immunity (and can therefore avoid  the burdens of further litigation) based on the  allegations in the plaintiff's complaint.  Behrens, 516 U.S. at 306-09; Forsyth, 472 U.S. at  526. Allowing a plaintiff to alter the  allegations in his or her complaint would have an  obvious effect on a pending Forsyth appeal. Thus,  unlike certain other interlocutory appeals, a  Forsyth appeal is not the sort of discrete and  ancillary matter that can be decided in isolation  from the remainder of the case against the public  official in his or her individual capacity.2  Stewart v. Donges, 915 F.2d 572, 576 (10th Cir.  1990).


11
Moreover, allowing a plaintiff to file an  amended complaint while a Forsyth appeal is  pending does place a litigation burden on a  defendant public official. In response to each  amended complaint, the public official will  likely want to file an answer and a motion to  dismiss, and possibly appeal any unfavorable  decision. Having to take these steps compromises  a defendant public official's right to avoid the  burdens of litigation. Of course, depriving the  district court of jurisdiction to accept an  amended complaint during a Forsyth appeal will  not forever prevent a plaintiff from amending his  or her complaint, but it will give the court of  appeals the opportunity to both pass on many of  the allegations the plaintiff will likely end up  relying on and offer guidance to the district  court (and the parties) on the legal issues  involved in the case. By doing so, the court of  appeals can limit the burden on the defendant  public official in responding to any post-appeal  amended complaint, a result consistent with the  purpose of a Forsyth appeal.


12
Furthermore, the risk that judicial resources  might be wasted by successive Forsyth appeals  regarding complaints the plaintiff no longer  wishes to stand on is mitigated by two facts.  First, as the Supreme Court has recognized,  successive Forsyth appeals are uncommon. Behrens,  516 U.S. at 310. This makes sense since  successive appeals on what will typically be  similar, if not identical, issues only add to the  litigation burdens faced by public officials. The  incentive is for public officials to wait for a  point in the case when they have a chance to  dispose of all the claims against them without  the risk that the plaintiff will subsequently  file (and the district court will accept) a  superseding amended complaint. Second, district  judges are divested of jurisdiction over aspects  of a case involved in a Forsyth appeal only if  the appeal is colorable. Apostol, 870 F.2d at  1339. If a district court certifies the appeal to  be frivolous, it may proceed forward with the  case despite the pendency of the appeal. Id.; see  also Behrens, 516 U.S. at 310-11 (approving this  practice). Thus, district court proceedings need  not be delayed by successive appeals that raise  only issues previously decided.


13
Finally, to the extent that the case law  relating to a district court's jurisdiction while  a Forsyth appeal is pending tends to support any  particular resolution of the precise issue  presented by this case, it tends to support our  resolution. For instance, in an Eleventh  Amendment interlocutory appeal that relied on  Apostol in determining whether the district court  retained jurisdiction during the appeal, this  court described Apostol's holding broadly as  requiring a stay of all proceedings to protect a  defendant's right to be free of litigation.  Goshtasby v. Board of Trustees, 123 F.3d 427, 428  (7th Cir. 1997). Likewise, the Tenth Circuit has  concluded, albeit in dicta, that "an  interlocutory appeal from an order refusing to  dismiss on . . . qualified immunity grounds  relates to the entire action and, therefore, it  divests the district court of jurisdiction to  proceed with any part of the action against an  appealing defendant." Stewart, 915 F.2d at 576.  In accordance with this authority, and for the  compelling reasons detailed above, we conclude  that a Forsyth appeal deprives a district court  of jurisdiction to accept an amended complaint  filed while the appeal is pending. Therefore, the  amended complaints May filed while this appeal  was pending are nullities and the complaint in  effect when this appeal was filed, his original  Amended Complaint, is the operative document.  Accordingly, this appeal is not moot, and our  jurisdiction is secure.

III

14
Government officials performing discretionary  functions are entitled to a qualified immunity  that shields them from damages liability "insofar  as their conduct does not violate clearly  established statutory or constitutional rights."  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Whether an official may be held personally liable  for his or her unlawful actions, therefore, turns  on "the objective legal reasonableness of the  action, assessed in light of the legal rules that  were clearly established at the time it was  taken." Wilson v. Layne, 526 U.S. 603, 614 (1999)  (internal quotations omitted). In order to be  "clearly established," the contours of a right  asserted must be sufficiently clear that a  reasonable official would understand that what he  or she is doing violates that right. Anderson v.  Creighton, 483 U.S. 635, 640 (1987). However, a  plaintiff need not show that the very action in  question has previously been held unlawful. Id.


15
In applying this legal framework to review a  qualified immunity claim, we ask two questions: (1) whether the plaintiff has asserted a  violation of a constitutional right, and (2)  whether the applicable constitutional standards  were clearly established at the time in question.  Levenstein v. Salafsky, 164 F.3d 345, 351 (7th  Cir. 1998); Erwin v. Daley, 92 F.3d 521, 525 (7th  Cir. 1996). In answering these questions,  however, we do not abandon the ordinary standards  of review. Therefore, since Sheahan's qualified  immunity claims arise from a motion to dismiss  under Fed. R. Civ. P. 12(b)(6), we review the  district court's ruling de novo, accepting as  true May's factual allegations and drawing all  reasonable inferences in his favor. Levenstein,  164 F.3d at 347.

A.  Equal Protection Claim

16
In support of his equal protection claim, May  alleged that pursuant to the policies of Sheriff  Sheahan and for no legitimate reason, pre-trial  detainees housed in Cook County Jail are treated  differently than those at Cook County Hospital.  Specifically, according to May's complaint,  hospital detainees, unlike jail detainees, are  not taken to court on assigned court dates and  are shackled to their beds. Likewise, again  according to May's complaint, hospital detainees  do not have the same access as jail detainees to  lawyers, legal materials, reading materials,  various prison programs, and visitors. In the  prison context, the Equal Protection Clause of  the Fourteenth Amendment requires inmates to be  treated equally, unless unequal treatment bears  a rational relation to a legitimate penal  interest. Hudson v. Palmer, 468 U.S. 517, 523  (1984) (citing Lee v. Washington, 390 U.S. 333  (1968) (per curiam)); Williams v. Lane, 851 F.2d  867, 881 (7th Cir. 1988).


17
Sheahan primarily argues that hospital detainees  and jail detainees do not warrant equal treatment  because they are not similarly situated and  different treatment is rationally related to  security concerns. It is not the case, however,  that any difference in the nature of a detainee's  confinement justifies different treatment. See  Williams, 851 F.2d at 881-82 (affirming a  decision finding an equal protection violation in  the different treatment afforded two groups of  prisoners). Sometimes detainees in different  sorts of confinement are similarly situated for  the purposes of the challenged policy. Therefore,  as the district court recognized, the problem  with Sheahan's argument is that it can be  accepted only after one assesses the strength and  nature of Sheahan's security concerns as well as  the amount and kind of similarity in the  situations of hospital detainees and jail  detainees. At the motion to dismiss stage, it is  premature to make such factual assessments. See  Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d  959, 962-63 (7th Cir. 1996). If at the summary  judgment stage, the evidence indicates that  hospital detainees and jail detainees are not  similarly situated with respect to the purposes  of the challenged policies and that Sheahan's  security or other concerns justify different  treatment, then Sheahan will be entitled to a  favorable ruling. But, at this stage, it is  enough that May's allegations are recognizable as  and consistent with an equal protection claim.


18
Sheahan further argues that, at the time in  question, it was not clearly established that his  treatment of hospital detainees would violate the  equal protection clause. However, Williams v.  Lane makes clear that differences in treatment  among inmates in different confinement situations  will support an equal protection claim. 851 F.2d  at 881. Sheahan complains that Williams involved  prison inmates in segregation, not hospital  detainees, but a perfect match with the facts of  a prior case is not required to defeat a  qualified immunity claim. Wilson, 526 U.S. at  614-15; Anderson, 483 U.S. at 640. It is enough  that Williams establishes that inmates in  different confinement situations are entitled to  equal treatment absent a legitimate reason for  different treatment. After Williams, the contours  of the right May asserts were sufficiently clear  that Sheahan should have understood that treating  hospital detainees and jail detainees differently  without a legitimate reason would be  unconstitutional.3 Accordingly, the district  court did not err in refusing to dismiss May's  equal protection claim.

B.  Access to the Courts Claim

19
In setting out his access to the courts claim,  May alleged that Sheriff Sheahan's restrictive  hospital detainee policies preclude him from  appearing in court, impede his access to his  attorney, and prevent him from assisting in his  own defense. Those seeking to vindicate their  rights in court enjoy a constitutional right of  access to the courts that prohibits state actors  from impeding one's efforts to pursue legal  claims. Lewis v. Casey, 518 U.S. 343, 350-54  (1996); Bounds v. Smith, 430 U.S. 817, 821-23  (1977). To prove a violation of this right, a  plaintiff must demonstrate that state action  hindered his or her efforts to pursue a non-  frivolous legal claim and that consequently the  plaintiff suffered some actual concrete injury.  Lewis, 518 U.S. at 350-54.


20
Sheahan defends against this claim primarily by  arguing that May failed to allege an actual  injury and thus cannot state a claim. Admittedly,  May's allegations in this regard are vague. But,  his complaint can be read to allege that he has  been detained longer than would otherwise be  necessary if he could go to court. In relevant  part, he alleged,


21
Plaintiff will not be taken to any scheduled  court appearances thereby delaying the final  disposition of his case; causing him to remain in  custody for a longer period of time; preventing  him from requesting a lowering of his bond as a  result of his serious illness; delaying all other  motions which require his personal attendance;  and impeding his access to his attorney.


22
Under the generous standards applicable to a  complaint reviewed on a motion to dismiss, this  allegation is sufficient to state an access to  the courts claim.


23
Sheahan further contends that, at the time in  question, it was not clearly established that his  alleged policies could violate a detainee's right  of access to the courts. However, numerous  precedents recognize a detainee's right of access  to the courts, both as a general matter and with  respect to legal assistance and participation in  one's case. Bounds, 430 U.S. at 821-25; Procunier  v. Martinez, 416 U.S. 396, 419 (1974) (limit on  access to attorney), overruled in part on other  grounds by Thornburgh v. Abbott, 490 U.S. 401,  413-14 (1989); Penny v. Shansky, 884 F.2d 329,  330 (7th Cir. 1989) (limit on ability to appear  in court); Johnson ex rel. Johnson v. Brelje, 701  F.2d 1201, 1207-08 (7th Cir. 1983) (limit on  access to attorney); Harris v. Pate, 440 F.2d  315, 316-17 (7th Cir. 1971) (interference with  ability to prepare defense). A policy both  preventing detainees from going to court and  limiting drastically their access to attorneys  has obvious problems under these precedents. As  such, it was clearly established, at the time in  question, that Sheahan's alleged policies could  violate a detainee's right of access to the  courts.4 Accordingly, the district court did not err in denying Sheahan's motion to dismiss  May's access to the courts claim.

C.  Substantive Due Process Claim

24
In support of his freedom from bodily restraint  claim, May alleged that pursuant to Sheriff  Sheahan's policy of shackling hospital detainees  to their beds, he was shackled to his bed around  the clock despite his weakened state and despite  being watched by armed guards.5 The Due Process  Clause of the Fourteenth Amendment prohibits the  use of bodily restraints in a manner that serves  to punish a pre-trial detainee. Youngberg v.  Romeo, 457 U.S. 307, 316 (1982); Bell v. Wolfish,  441 U.S. 520, 535-37 (1979); Murphy v. Walker, 51  F.3d 714, 717-18 (7th Cir. 1995). The use of  bodily restraints constitutes punishment in the  constitutional sense if their use is not  rationally related to a legitimate non-punitive  government purpose or they appear excessive in  relation to the purpose they allegedly serve.  Wolfish, 441 U.S. at 561.


25
Sheahan principally argues that his practice of  shackling hospital detainees is rationally  related to his legitimate security concerns.  Certainly, shackling all hospital detainees  reduces the risk of a breach of security and thus  furthers a legitimate non-punitive government  purpose. But, it is hard to see how shackling an  AIDS patient to his or her bed around the clock,  despite the continuous presence of a guard, is an  appropriate policy for carrying out this purpose.  Such a policy is plainly excessive in the absence  of any indication that the detainee poses some  sort of security risk. Cf. Wolfish, 441 U.S. at  539 n.20 ("[L]oading a detainee with chains and  shackles and throwing him in a dungeon may ensure  his presence at trial and preserve the security  of the institution. But it would be difficult to  conceive of a situation where conditions so  harsh, employed to achieve objectives that could  be accomplished in so many alternative and less  harsh methods, would not support a conclusion  that the purpose for which they were imposed was  to punish."). Perhaps after some discovery  Sheahan can produce evidence justifying both his  shackling policy in general and his shackling of  May in particular, but May's allegations are more  than adequate to survive a motion to dismiss.


26
Sheahan also argues that, at the time in  question, it was not clearly established that  around the clock shackling of a hospital detainee  would violate the Constitution. Sheahan's  argument, however, relies on characterizing the  relevant constitutional right in a way that  essentially demands precedent involving an almost  identical factual scenario. Such particularity is  not required. Wilson, 526 U.S. at 614-15;  Anderson, 483 U.S. at 640. It is enough that  precedent establishes that pretrial detainees may  not be shackled without a good penological or  medical reason. See Murphy, 51 F.3d at 718.  Accordingly, the district court did not err in  refusing to dismiss May's freedom from bodily  restraint claim.

IV

27
May's complaint adequately states a claim for  each of the constitutional violations he alleges  and the contours of each of the constitutional  rights he asserts was clearly established at the  time in question. Therefore, Sheriff Sheahan is  not entitled to qualified immunity on the  constitutional claims May asserts. Accordingly,  we Affirm the district court's order denying  Sheahan's motion to dismiss with respect to these  claims.



Notes:


1
 May's amended complaints have added new  allegations and provided factual detail regarding  his original allegations, in addition to  identifying the unnamed defendants and joining  additional plaintiffs.


2
 The scope of the divestiture of jurisdiction  effected by a Forsyth appeal is limited, however.  The district court has authority to proceed  forward with portions of the case not related to  the claims on appeal, such as claims against  other defendants or claims against the public  official that cannot be (or simply are not)  appealed. Still, a district court might find it  best to stay an entire case pending the  resolution of a Forsyth appeal. See, e.g.,  Monfils v. Taylor, 165 F.3d 511, 518-19 (7th Cir.  1998).


3
 In an effort to establish that legal uncertainty  does exist, Sheahan cites Rivera v. Sheahan, No.  97 C 2735, 1998 WL 531875, at *6 (N.D. Ill. Aug.  14, 1998), which rejected one detainee's somewhat  similar equal protection claim. However, that  decision was based on the sufficiency of the  plaintiff's allegations, not any ruling on the  legality of Sheahan's policies. Therefore, even  if a single district court decision were  sufficient to create legal uncertainty (and it is  not, see generally Burgess v. Lowery, 201 F.3d  942, 944-46 (7th Cir. 2000)), the decision  Sheahan relies on will not do.


4
 In arguing for the opposite conclusion, Sheahan  again cites Rivera v. Sheahan, which rejected a  somewhat similar access to the courts claim. 1998  WL 531875, at *6. But, for the same reasons  articulated in supra note 3, Rivera does not  create any legal uncertainty with respect to the  contours of the right of access to the courts May  asserts.


5
 As the district court recognized, May's complaint  also suggests a claim that Sheahan's practice of  shackling May to his bed amounted to deliberate  indifference to a serious medical need (also a  due process violation, see Zentmyer v. Kendall  County, Ill., 220 F.3d 805, 810 (7th Cir.2000)), but May  does not pursue this theory on appeal. May,  however, does pursue on appeal allegations that  the limitations Sheahan has placed on his phone,  mail, and visitation rights violate due process,  but these allegations are not in his complaint so  we will not consider any claims that might be  based on these allegations either.


