In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3140

Gregory May,

Plaintiff-Appellee,

v.

Michael F. Sheahan,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 0395--David H. Coar, Judge.


Argued June 2, 2000--Decided September 8, 2000



      Before Flaum, Chief Judge, and Evans and Williams,
Circuit Judges.

      Williams, Circuit Judge. 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.

I

      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.

      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.

      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

      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.

      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).

      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.
      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.

      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.

       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).

      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.

      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.

      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

      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.

      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

      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).

      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.

      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

      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.

      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,

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.
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.

      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

      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.

      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.

      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

      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.



/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., Nos. 99-1163, 99-1823, 2000 WL
760690, at *4 (7th Cir. June 13, 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.
