Ivey v. Harney

• Decision Date: 23 January 1995
• Docket Number: No. 94-2839,94-2839
• Citation: 47 F.3d 181
• Parties: Bobby IVEY, Plaintiff-Appellee, v. Michael K. HARNEY, et al., Defendants. Appeal of ILLINOIS DEPARTMENT OF CORRECTIONS.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 181

47 F.3d 181

Bobby IVEY, Plaintiff-Appellee, v. Michael K. HARNEY, et al., Defendants Appeal of ILLINOIS DEPARTMENT OF CORRECTIONS.

No. 94-2839.

United States Court of Appeals Seventh Circuit.

Argued Nov. 28, 1994.

Decided Jan. 23, 1995.

Matthew A. Rooney, Ronald G. Hayden (argued), Mayer, Brown & Platt, Chicago, IL, for plaintiff-appellee.

Susan Frederick Rhodes, Asst. Atty. Gen., Chicago, IL (argued), for Illinois Dept. of Corrections.

Michael W. Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, for LaSalle County Comm., Anthony Condi and Ed Adams.

Robert J. Baron, Roos, Pitts & Poust, Joliet, IL, for Dr. Haney.

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

While confined at the jail in LaSalle County, Illinois, Bobby Ivey slipped in the shower and hurt his back. He filed an action under 42 U.S.C. Sec. 1983, contending that the medical care provided for his injury violated his rights under the eighth amendment to the Constitution, applied to the states by the fourteenth. By making a claim under the Constitution rather than the common law of torts, Ivey undertook a difficult task. To prevail, he must establish that the defendants intentionally inflicted needless suffering. He may be able to do this by showing that the defendants were "deliberately indifferent" to his "serious medical needs," see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), but this formula itself requires proof that "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, --- U.S. ----, ----, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). The district court recruited counsel to help Ivey make the required demonstration. Counsel concluded that expert medical evidence is called for and located a physician who is willing to examine Ivey.

Problem: the physician is in Chicago, and Ivey is imprisoned at the Taylorville Correctional Center, more than 200 miles away. The physician does not make house calls, let alone range so far from his office. Potential solution: the Illinois Department of Corrections can transport Ivey to Chicago, supervise him during the examination, and return him to Taylorville. Objection: the Illinois Department of Corrections does not make house calls, either. Transportation and lodging for a prisoner and guards is expensive. There is also a risk of escape or mayhem, for Ivey is no shrinking violet. He has been convicted of aggravated criminal assault, aggravated battery, and aggravated criminal sexual abuse. See People v. Ivey, 267 Ill.App.3d 310, 204 Ill.Dec. 695, 642 N.E.2d 157 (3d Dist.1994). The State of Illinois has nothing to do with the litigation against the sheriff, chief jailer, and chief medical officer of LaSalle County. And 28 U.S.C. Sec. 2241(c) creates a formidable legal obstacle, providing that "[t]he writ of habeas corpus shall not extend to a prisoner unless ... (5) [i]t is necessary to bring him into court to testify or for trial." (None of the other subsections is relevant.) Ivey does not want to come "into court"; he wants to visit a potential expert witness. Counterstroke: Bypass Sec. 2241 and rely on 28 U.S.C. Sec. 1651(a), which provides that federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." A writ directing his custodian to transport him to Chicago for physical examination would aid his cause, and therefore is "appropriate," Ivey insisted. So the district court held and issued the writ.

The Department of Corrections has appealed, as a custodian ordered to produce its prisoner may do even though the litigation between the parties continues. Jackson v. Vasquez, 1 F.3d 885, 887-88 (9th Cir.1993); Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 561 (7th Cir.1986). The custodian is a stranger to Ivey's suit against the three employees of LaSalle County; the order to transport Ivey to Chicago is the only, and therefore the "final," decision in this collateral proceeding. The custodian cannot appeal from the final judgment in the Sec. 1983 suit, and, even if it could, the appeal would be too late, so appellate jurisdiction is secure under the collateral order doctrine in light of the importance of the unresolved legal issue the Department presents. Cf. Digital Equipment Corp. v. Desktop Direct, Inc., --- U.S. ----, ---- - ----, 114 S.Ct. 1992, 2001-03 (1994).

Although the district court expressed some doubt on this score--suggesting in footnote 2 that it would order Ivey brought to Chicago under Sec. 2241 "in the event that the Court of Appeals concludes that the All Writs Act was improperly invoked"--Sec. 2241(c) prevents a district court from issuing a writ of habeas corpus that directs a custodian to produce a prisoner for a physical examination. Not just "does not authorize" such a step; Sec. 2241(c) forbids it by providing that the "writ of habeas corpus shall not extend to a prisoner unless" one of five criteria obtains. A desire, even a pressing need, for an examination by a potential expert witness does not satisfy any of the five. Ivey depicts the limitations in Sec. 2241(c) as lacunae, which a court may fill in the exercise of sound discretion. The belief that omissions from statutes authorize judicial creativity infuses the district court's analysis, so we pause to inquire what it means to call an omission from a statute a "gap."

Laws often require or permit a court to do something without providing details. Omission leaves in place the common law powers of the federal courts, and using these interstitial powers the courts put flesh on the statutory bones. Rivera v. Santirocco, 814 F.2d 859 (2d Cir.1987), provides a good example. Section 2241(c)(5) authorizes the writ of habeas corpus ad testificandum. The court may direct the custodian to produce the prisoner in court as a witness. What happens if the testimony takes two days? Where does the prisoner stay overnight? For that matter, who guards the prisoner in court? The statute does not say; neither, however, does it subtract from the court's common law powers to control such details. The second circuit ordered the Marshals Service and the FBI to take custody of a state prisoner while the trial continues. Having a secure power to produce the prisoner, the court specified particulars. Our case, by contrast, does not entail questions such as "how?" or "what next?".

Statutory lists may create a second category of gaps. Suppose Sec. 2241(c) began: "The writ of habeas corpus shall extend to a prisoner when ...", followed by the same list that now appears. Such a statute leaves open the question whether other circumstances also justify a writ of habeas corpus. True, one might chant the words espressio unius est exclusio alterius, but this maxim never answers the question whether the statutory list is designed as a floor or a ceiling. Section 2241(c) as we have rewritten it might mean that a prisoner is entitled to a writ of habeas corpus in the identified cases, leaving others to judicial discretion; or it might mean that only in the listed circumstances is the prisoner even eligible for the writ. Language alone does not distinguish the two possibilities (and there are other ways to read such a text). Knowledge of the history of habeas corpus as a common law writ would aid the interpretive project. A judge versed in history might readily read the (rewritten) Sec. 2241(c) as codifying traditional uses of the writ while leaving to the future the decision whether other circumstances also justify commanding a custodian to produce a prisoner.

Before Sec. 2241(c) took its current form, the Supreme Court understood the statutory authority to issue writs of habeas corpus, then part of Sec. 1651, in this way. Price v. Johnston, 334 U.S. 266, 278-86, 68 S.Ct. 1049, 1056-61, 92 L.Ed. 1356 (1948), held that a court of appeals may direct a warden to produce a prisoner for oral argument. Allowing a prisoner to argue his case in the district court has the sanction of history and is implied by the authorization to produce a prisoner for "trial"; the Court thought that the continuation of a case on appeal is sufficiently similar to justify the same treatment, if the court of appeals deems it prudent. Producing a prisoner in court is a standard function of the writ. Similarly, United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), held that a court may use Sec. 1651 to authorize the installation of a pen register device on a telephone line, because this is similar to the power to issue search warrants and wiretap orders. Statutes and rules governing warrants and wiretaps neither authorize nor forbid pen registers; knowledge that most new features in the law of search and seizure had developed through the common law, and only then been codified, led the Court to treat the statutory list of authorized orders as a floor rather than a ceiling. Because an order to install a pen register is a cousin to an order authorizing a wiretap--a pen register requires the same sort of access to telephone lines but intercepts only the numbers dialed rather than the contents of phone conversations--the Court thought such an order "agreeable to the usages and principles of law" under Sec. 1651(a). See also, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). Once again, however, this category of statutory "gap" requires language that is open-ended; Sec. 2241(c) in its current incarnation is close-ended, a ceiling rather than a floor.

Still a third kind of gap arises when for one reason or another the normal rule does not apply to some class of cases. The court...