West v. Schwebke

• Citation: 333 F.3d 745
• Decision Date: 20 June 2003
• Docket Number: No. 02-4298.,02-4298.
• Parties: Edwin C. WEST, et al., Plaintiffs-Appellees, v. Kurt SCHWEBKE, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

333 F.3d 745

Edwin C. WEST, et al., Plaintiffs-Appellees, v. Kurt SCHWEBKE, et al., Defendants-Appellants.

No. 02-4298.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2003.

Decided June 20, 2003.

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Kristin M. Kerschensteiner (argued), Wisconsin Coalitioln for Advocacy, Madison, WI, for plaintiffs-appellees.

Jody J. Schmelzer (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for defendants-appellants.

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Like most other states, Wisconsin holds some sex offenders past the ends of their prison sentences. Those deemed "sexually violent persons" are subject to civil commitment of indefinite duration under Wis. Stat. ch. 980. See Adams v. Bartow, 330 F.3d 957 (7th Cir.2003). Plaintiffs are among those detained, or committed, under Chapter 980. They were held in the Wisconsin Resource Center until June 2001, when all but one were moved to the Sand Ridge Secure Treatment Center. Individual treatment plans used at the Resource Center contemplated the possibility that misconduct would lead to what the state calls "therapeutic seclusion": placement in a cell that contains only a concrete platform (which serves as a bed), a toilet, and a sink. Detainees in seclusion often were deprived of clothing and other amenities. Secluded detainees were allowed out, in shackles, one hour a day on weekdays and not at all on weekends (when staffing levels were lower). When the staff thought that secluded detainees might be ready for return to the general population, they were allowed out two hours a day, but still kept in restraints. One plaintiff was held in seclusion for 82 consecutive days (and more than 100 days all told in 1998); all plaintiffs have been held in seclusion for at least 20 consecutive days.

In this suit under 42 U.S.C. § 1983 the detainees contend that "therapeutic seclusion" as practiced in the Wisconsin Resource Center violated their rights under the due process clause of the fourteenth amendment. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Sand Ridge has different policies, not challenged in this litigation; the one plaintiff who remains at the Resource Center is being held for violation of probation and not as a civil detainee, so the suit has become one for damages rather than injunctive relief. In response to defendants' motion for summary judgment — a motion that sought the benefit of qualified immunity, if not victory on the merits — the detainees offered the affidavits of two respected psychiatrists, one of whom (Kenneth Tardiff) had been chairman of the American Psychiatric Association's task force on the appropriate uses of seclusion and restraint. These experts concluded unequivocally that the duration over which the Resource Center applied seclusion was medically inappropriate and universally condemned by the psychiatric profession as a therapeutic tool. One of the affiants went further and opined that any contrary view could not represent an honest, professional judgment. Defendants offered contrary affidavits from three experts of their own, psychiatrists with enough fortitude to risk being labeled dishonest and unprofessional. The district court concluded that this dispute within the profession prevents summary judgment. See West v. Macht, 235 F.Supp.2d 966 (E.D.Wis.2002). The judge lopped off some additional claims and granted summary judgment to some defendants; we limit this opinion to the remaining claims and parties. Defendants now pursue an interlocutory appeal, arguing that qualified immunity entitles them to an immediate end to what is left of the litigation. See Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

Plaintiffs' claims rest on the principle articulated in Youngberg that "[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." 457 U.S. at 321-22, 102 S.Ct. 2452. Although the Court rejected in Youngberg an argument that the state must establish the "necessity" of applying to detainees restraints or other forms of close custody, it concluded that a state still must ensure that considered judgment has been exercised. Detainees are entitled to "the exercise of professional judgment as to the needs of residents" (id. at 322, 102 S.Ct. 2452); if professional judgment leads to the conclusion that restraints are necessary for the well-being of the detainee (or others), then the Constitution permits those devices. Cf. Bell v. Wolfish, 441 U.S. 520, 539-40, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (similar conclusion with respect to pretrial detainees, who like civil detainees are held for reasons other than punishment). Seling v. Young, 531 U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001), generalizes the proposition this way: "due process requires that the conditions and duration of confinement ... bear some reasonable relation to the purpose for which persons are committed."

Defendants allow that these rules may be apt for normal detainees, such as the profoundly retarded plaintiff in Youngberg who was committed because, with an 18-month-old mind in a 33-year-old body, he was unable to control his impulses and had become too unruly for his family to handle. By contrast, defendants contend, persons committed under Chapter 980 are "nontraditional" detainees who may be handled more roughly. The word "nontraditional" is a mantra in defendants' briefs. Yet Seling, a case about persons detained as sexually dangerous predators, quoted favorably from Youngberg. So did Foucha v. Louisiana, 504 U.S. 71, 79-80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), which held that persons charged with crime, and acquitted on the ground of insanity, may not be held in civil commitment beyond the time when they no longer pose a danger to self or others. To the extent that plaintiffs are uncontrollably violent, and thus pose a danger to others, Wisconsin is entitled to hold them in segregation for that reason alone; preserving the safety of the staff and other detainees takes precedence over medical goals. So we said in Thielman v. Leean, 282 F.3d 478 (7th Cir.2002); so the district judge held in this very case. Just as a pretrial detainee may be put in isolation — indeed, may be punishe...