Joe Marsh, Leroy Owens v. Butler County, Alabama, the Butler County Commission , 268 F.3d 1014 ( 2001 )

EDMONDSON, Circuit Judge;

This case is about Rule 12(b)(6) of the Federal Rules of Civil Procedure and the defense of qualified immunity.¹ We first decide whether Plaintiffs have sufficiently stated a claim against a County, its governing body, and its Sheriff for deliberate indifference to unsafe conditions at the county jail and for deliberate indifference to the serious medical needs of Plaintiff Owens following an assault. And if so, we then must decide whether the stated claims survive in the face of an asserted defense of qualified immunity. The district court dismissed the case altogether. We reverse the district court’s order, except for the dismissal of certain claims alleged against the Sheriff and the dismissal of the claim against the County for deliberate indifference to Owens’s serious medical needs.

For the sufficiency of the complaint, the Supreme Court has given us this guidance: “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A complaint is also subject to dismissal under Rule 12(b)(6) when its allegations — on then-face — show that an affirmative defense bars recovery on the claim. See Quitter v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984) vacated on petition for rehearing, reinstated by 764 F.2d 1400 (11th Cir.1985) (saying that complaint essentially is “self-defeating” when claim adequately stated but includes matters of avoidance that preclude pleader’s ability to recover, because plaintiffs “own allegations show that the defense exists”); see also, Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir.1981) (saying that affirmative defense alleging failure to bring Title VII claim to EEOC in timely fashion was properly asserted in 12(b)(6) motion to dismiss); Kincheloe v. Farmer, 214 F.2d 604, 605 (7th Cir.1954) (when “allegations of [plaintiffs] complaint erected [the affirmative defense]... it was his duty in order to extricate himself therefrom to plead any exceptions upon which he relied”); Barter & Sons v. Dinkler Hotels Co., 199 F.2d 854, 855 (5th Cir.1952) (holding that affirmative defense of res judicata can be raised properly and decided in 12(b)(6) motion).

Once the affirmative defense of qualified immunity is advanced, the allegations of the complaint take on great importance in a lawsuit. “Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (“At the [12(b)(6)] stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.’ ”). The Supreme Court has urged us to apply the affirmative defense of qualified immunity at the earliest possible stage in litigation because the defense is immunity from suit and not from damages only. See Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in the litigation.”); Mitchell, 105 S.Ct. at 2815 (entitlement of qualified immunity is “immunity from suit rather than a mere defense to liability; and.. .is effectively lost if a case is erroneously permitted to go to trial”).

We have applied the qualified immunity defense at the 12(b)(6) stage before. See, e.g., Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.2001); Denno v. School Board of Volusia County, 218 F.3d 1267, 1275 (11th Cir.2000); Kyle v. Chapman, 208 F.3d 940, 943 (11th Cir.2000); Maggio v. Sipple, 211 F.3d 1346, 1355 (11th Cir.2000) (reversing district court’s failure to grant 12(b)(6) motion to dismiss because defendants entitled to qualified immunity). We apply the qualified immunity defense to dismiss a complaint at the 12(b)(6) stage where, (1) from the face of the complaint, (2) we must conclude that (even if a claim is otherwise sufficiently stated), (3) the law supporting the existence of that claim— given the alleged circumstances—was not already clearly established, (4) to prohibit what the government-official defendant is alleged to have done, (5) before the defendant acted.

Two more points are worth mentioning preliminarily. The complaint was drafted by lawyers. Plaintiffs have at all times been represented by legal counsel. In addition, never in the district court did Plaintiffs seek to amend the complaint (for example, by adding facts), even after the complaint’s sufficiency had been specifically challenged and the qualified immunity defense expressly advanced by opposing counsel and even after a recommendation to dismiss had been made by the magistrate judge.

A complete copy of the complaint is made an appendix to this opinion. Accepting all well-pleaded factual allegations (with reasonable inferences drawn favorably to Plaintiffs) in the complaint as true, we will summarize the allegations.²

I. The Allegations

While incarcerated, Plaintiffs Joe Marsh (“Marsh”), a convicted inmate, and Leroy Owens (“Owens”), a pretrial detainee (together “Plaintiffs”) were assaulted and injured by other prisoners in the Butler County Jail (the “Jail”). Defendants Butler County, Alabama, and the Butler County Commission were sued as the government entities responsible under state law for properly maintaining, operating and funding the Jail.³ Defendant Diane Harris (the “Sheriff’), Sheriff of Butler County, was sued in her individual and official capacities as the party responsible under state law for the Jail’s general supervision and control.⁴ The Sheriff has acted as the final policymaker of Butler County for those aspects of jail operation under her control.

In Counts I and II of the Complaint, Plaintiffs allege that Defendants’ deliberate indifference to the unreasonably dangerous conditions at the Jail deprived Plaintiffs of their Eighth Amendment and Fourteenth Amendment rights under the United States Constitution. In Count III of the Complaint, Owens claims that Defendants’ deliberate indifference to his serious medical needs deprived him of his rights under the Fourteenth Amendment.⁵

The Jail was an old building that had become extremely dilapidated by the summer of 1996. Inmates were able to obtain makeshift weapons by cannibalizing- parts of the decaying building. Lack of adequate monitoring of the inmates allowed inmate activities to go mostly unchecked. Locks to the doors of the inmates’ cells did not work, resulting in the inability of the guards to lock down the prisoners. Because prisoners were never locked down, jailers were afraid to conduct visual inspections of inmate cells on the second floor; most of the inmate population was kept on the second floor. No visual or audio surveillance system was in place on the second floor, nor, did prisoners have means to contact guards other than by screaming or banging on the walls. Jailers never conducted prisoner headcounts.

Often, only one jailer was on duty at the Jail at a time. This single jailer was responsible for controlling the entire inmate population, administering inmate intake and release, controlling the gate and fence surrounding the Jail, supervising visitation and outdoor exercise, handling mail, coordinating food service, dispensing medication, supervising trustees, answering the Jail telephone, and (at times) answering calls to the Butler County Sheriffs Department and operating the dispatch radio. Because the Jail was understaffed, inmate trustees were given many responsibilities for taking care of other inmates and maintaining the operation of the Jail.

In August 1995, the jail inspector for the Alabama Department of Corrections recommended that all Butler County jailers be trained in jail-management seminars. By the time of the incidents underlying the complaint, few jailers had been so trained. Written procedures did not govern the Jail’s operations.

Inmates entering the Jail were not screened for mental impairments or for whether they had conflicts with other inmates in the Jail. No system of classification existed at the Jail: pretrial detainees were housed with convicted inmates, nonviolent offenders with violent offenders, juveniles with adults, and mentally ill persons with those in good mental health. Never were prisoners disciplined or segregated for assaulting other inmates, destroying jail property, or threatening jailers. The Jail contained four eight-person cells, one four-person cell, trustee cells, two holding cells, one isolation cell and a cell for female inmates; but sometimes more than 50 inmates were imprisoned at the Jail.

Jail Administrator Thelma Teague (“Teague”) told the Sheriff several times that the Jail needed more staff. In February 1996, the jail inspector for the Alabama Department of Corrections informed Defendants that the Jail was not reasonably secure. Defendants also received many complaints and requests for assistance from prisoners. A letter from prisoner-rights advocates told Defendants that the Jail conditions posed “an immediate and serious threat to the safety of the inmates” and made inmates “highly vulnerable to assault by other inmates.”

On 2 July 1996, four inmates assaulted Joe Marsh in his cell. He was struck in the head with a metal pipe, beaten for several minutes, and cut with a screwdriver. During the assault other inmates yelled and banged on the walls attempting to get the attention of jailers. No jailer came upstairs until 10 to 15 minutes after the assault ended. Marsh suffered lacerations across his forehead, on the back of his head and on his back. The bone above his eyebrow was broken. Marsh was taken to a hospital where he received medical treatment for his injuries. His left eye now droops, and he has nerve damage in his forehead as a result of the assault. He continues to suffer from frequent headaches and nightmares.

The four attackers were never disciplined for the assault on Marsh. Two days later (and after the attack on Owens) one of the four attackers discharged a fire extinguisher into Marsh’s cell where he was resting, nearly suffocating him.

Owens, a paranoid schizophrenic, was a pretrial detainee who was placed in the general population at the Jail. On 3 July 1996, the same four inmates who assaulted Marsh attacked Owens.

Owens was attacked in the dayroom on the second floor. He was hit in the head with a metal pipe and hit with a watercooler. His head was smashed into a table, and he was kicked, stomped, stabbed and beaten for 30 minutes to an hour. Other inmates called for the jailer to assist Owens. During the assault, the attackers returned to their cells when they suspected a jailer was on the way. When the attackers realized that no help for their victim was coming, they returned to the dayroom to continue the assault.

When the assault started, only one jailer was on duty. When he heard the cries for help he called the Greenville City Police. When the police arrived, they refused to go onto the second floor. The jailer called the Sheriff and Jail Administrator Teague, but both refused to come to the Jail. Chief Deputy Hartley (“Hartley”) was called and did come to the Jail.

Twenty minutes after the assault ended, Hartley walked upstairs and brought Owens downstairs. Owens was taken to a hospital shortly after midnight on 4 July. His injuries were treated. Owens was discharged from the hospital to the care of the Butler County Sheriffs Department. Two deputies signed a discharge sheet which instructed them to monitor Owens’s level of consciousness, pupils, vision, and coordination, and to call the hospital immediately if a change occurred.

Back at the Jail, Hartley instructed Owens to sign his own bond, pursuant to Defendants’ policy and custom of releasing sick or injured inmates. Hartley then drove Owens to a motel near the 1-65 interstate highway and released him. Owens’s clothes were bloody, and he was in his bare feet. The clerks at the motel refused to rent him a room and called the police. The police officer who responded to the call followed Owens as he wandered across the 1-65 overpass and then ordered the clerk at another motel to rent Owens a room.

Owens awoke the next day in terrible pain and called his grandmother’s house. His sisters came to the motel where Owens had spent the night. An ambulance was called, and Owens returned to the hospital where a doctor prescribed pain medication. Because of the assault at the Jail, Owens still experiences pain and limited mobility in his right shoulder and uncontrollable shaking in his right arm.

II. Proceedings in the District Court

Plaintiffs filed their complaint in 1997. Without filing an answer, Defendants filed their motions to dismiss. The Sheriffs motion, among other things, asserted qualified immunity. Plaintiffs filed responses to the motions. The magistrate judge made his recommendations to grant Defendants’ motions to dismiss. Plaintiffs filed their objections to the magistrate’s recommendations with the district court. The district court adopted, approved and affirmed the magistrate judge’s recommendations and granted the County’s and the Sheriffs motions to dismiss.

III. Claims Against The County for Jail Conditions⁶

The Eighth Amendment prohibits cruel and unusual punishment. The Supreme Court says that prison officials will be liable for violating the Eighth Amendment when they are deliberately indifferent to the substantial risk of serious harm to inmates. Put differently, officials, to be liable, must be aware of a substantial risk of serious harm to the inmates and not take reasonable measures to alleviate that risk. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1982-83, 128 L.Ed.2d 811 (1994).

A local government can be directly responsible for a constitutional violation due to its acts or omissions. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (“a municipality may be liable under section 1983 for a single decision by its legislative body... ”) (citing Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)). A local government, however, will be liable under section 1983 only for acts for which the local government is actually responsible. Turquitt v. Jefferson Cty., Ala., 137 F.3d 1285, 1287 (11th Cir.1998). Alabama counties have no responsibility for daily operation of county jails and no authority to dictate how jails are run, but the County is charged with erecting and maintaining jails.⁷ Id. at 1289-90. Therefore, the County will have violated Plaintiffs’ Eighth Amendment rights if its failure to maintain the Jail constituted deliberate indifference to a substantial risk of serious harm to the prisoners.

Plaintiffs allege in the complaint that the physical conditions of the Jail, the maintenance of which was the County’s responsibility, presented an objective substantial risk of serious harm to the inmates. They allege the locks on the doors to cells did not work, preventing inmates from being locked down. The structure of the Jail was so dilapidated that inmates could fashion weapons from pieces of the building. And no video or audio surveillance system was in place to check on the inmates.

Plaintiffs allege that the County was aware of the conditions. Plaintiffs say these things put the County on notice: a report from the Alabama Department of Corrections filed in February 1996; faultfinding inspection reports from several state agencies; complaints from prisoners; a letter (outlining dangerous conditions) from a prisoner-rights advocacy organization; and a complaint filed in a lawsuit on 14 May 1996, seeking declaratory and in-junctive relief on behalf of the prisoners in the Jail.

We accept that conditions in a jail facility that allow prisoners ready access to weapons, fail to provide an ability to lock down inmates, and fail to allow for surveillance of inmates pose a substantial risk of serious harm to inmates. In addition, Plaintiffs’ allegations that the County received many reports of the conditions but took no remedial measures is sufficient to allege deliberate indifference to the substantial risk of serious harm faced by inmates in the Jail.

Plaintiffs’ complaint also properly alleges the causal connection between the County’s failure to maintain the Jail and the assaults on Marsh and Owens. For example, that the locks on the doors to cells did not work prevented the isolation of prisoners from each other and gave attackers ready access to Plaintiffs. We conclude that Plaintiffs sufficiently allege a constitutional violation by Butler County to survive the County’s motion to dismiss.

IV. The Claims Against Sheriff Harris

A. Official-Capacity Claims Against the Sheriff

Authority over inmates is expressly granted to Alabama Sheriffs. See Turquitt, 137 F.3d at 1289 (saying “the sheriff has control over the inmates in the jail, the employees of the jail, and the jail itself’ and the “sheriff [ ] has the duty to . ensure that inmates do not come to harm” (citing Ala.Code § 14-6-1)). The authority the Sheriff has over the Jail is totally independent of the county commission; so, the “sheriff acts exclusively for the state rather than for the county in operating a county jail.” Id. at 1288. For this reason, Alabama sheriffs are considered arms of the state and protected by sovereign immunity in suits against them in their official capacity. The complaint against the Sheriff in her official capacity was thus properly dismissed. The Sheriff can be subject to suit only in her individual capacity, to which she might be entitled to qualified immunity.

B. Individual-Capacity Claims Against Sheriff Harris for Conditions at the Jail (Counts I and II)

To overcome a Rule 12(b)(6) motion based on the defense of qualified immunity, Plaintiffs must allege conditions that, in the light of the already clearly established law at the time of the incident, obviously amounted to cruel and unusual punishment under the Eighth Amendment. In the qualified immunity analysis, we generally first determine whether a plaintiff has stated a claim for a constitutional violation at all. See Stanley v. City of Dalton, 219 F.3d 1280, 1285 (11th Cir.2000).

A prison official’s deliberate indifference to a known, substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993). An Eighth Amendment violation will occur when a substantial risk of serious harm, of which the official is subjectively aware, exists and the official does not “respond! ] reasonably to the risk.” Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1982-83, 128 L.Ed.2d 811 (1994). A plaintiff must also show that the constitutional violation caused his injuries.

In Farmer, the Court was chiefly concerned with defining the level of intent required of an official to violate the Eighth Amendment — the subjective element of the tort; but Farmer also explained that two objective elements are part of an Eighth Amendment violation. First, an objectively substantial risk of serious harm to prisoners must exist. See Id. at 1977. Second, once it is established that the official is aware of this substantial risk, the official must react to this risk in an objectively unreasonable manner. See Id. at 1983.

In this case, Plaintiffs allege these conditions at the Jail: 1) there was no segregation of nonviolent inmates from violent inmates, pretrial detainees from convicted criminals, juveniles from adults, or inmates with mental disorders from those without mental disorders, 2) at times the Jail housed more prisoners than the cells could accommodate, 3) the Jail was routinely understaffed, 4) no head.counts of prisoners were made to make sure they were all accounted for, 5) locks on cell doors were not functional, allowing inmates to roam freely at all hours of the day, 6) homemade weapons were readily available by fashioning weapons from material torn from the dilapidated structure of the Jail, 7) no lock down of prisoners in their cells occurred at any point during the day or night, 8) cells were not visually inspected, 9) no jailer was assigned to maintain prisoners’ security on the second floor where most of the inmates were housed, 10) the Jail was not operated in accordance with written policies, 11) inmates were not screened for mental health, medical conditions or conflicts with other prisoners before entering the Jail, and 12) prisoners were not disciplined or segregated when they attempted to escape, threatened jailers, destroyed property or assaulted other inmates.

Taken as a whole, these alleged conditions, if true, present an objectively substantial risk of serious harm — including the risk of inmate-on-inmate attacks — to inmates. This risk violates the Eighth Amendment’s requirement “that inmates be furnished with basic human needs, one of which is ‘reasonable safety.’ ” Helling, 113 S.Ct. at 2480-81 (quoting DeShaney v. Winnebago County Dept. Social Services, 489 U.S. 189, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989)).

Plaintiffs also allege that Harris was aware of the risk: she was provided with faultfinding, -inspection reports by state agencies, reports outlining the conditions that existed at the Jail; with many complaints from prisoners and requests for assistance; with correspondence from prisoners’ lawyers detailing the staffing problems and warning of a “serious threat to the safety of inmates”; and with a lawsuit filed in the district court in May 1996, seeking injunctive and declaratory relief on behalf of the inmates at the Jail. In addition, the conditions at the Jail are alleged to be longstanding and pervasive. These allegations are sufficient to plead that the Sheriff was subjectively aware of the substantial risk to inmate safety at the Jail. See Farmer, 114 S.Ct. at 1979 (“[T]he 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.”).

Still, a prison official will only violate the Eighth Amendment if the official’s response to the conditions posing the substantial risk of serious harm is unreasonable. See Farmer, 114 S.Ct. at 1982-83. Plaintiffs allege that Harris did absolutely nothing to alleviate the conditions at the Jail, despite repeated warnings and recommendations for how conditions could be improved. This alleged lack of action is not reasonable under the alleged circumstances.

Plaintiffs also allege that the dangerous conditions caused their injuries. Conditions, like those in this case, where violent prisoners are allowed free reign of a jail with easy access to weapons without proper supervision by guards could be found to have caused the assaults on Plaintiffs.

We conclude that Plaintiffs adequately allege 1) an objective, substantial risk of serious harm to inmates existed, 2) the Sheriff was subjectively aware of this risk, 3) the Sheriff responded in an objectively unreasonable way to this known risk, and 4) the constitutional violation caused Plaintiffs’ injuries. Plaintiffs, therefore, allege sufficiently that Sheriff Harris violated their Eighth Amendment rights.

But, the Sheriff, in her individual capacity, might be entitled to qualified immunity — barring Plaintiffs’ suit against her — even if the complaint states an otherwise valid claim for an Eighth Amendment violation.⁸ See Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1151 (11th Cir.1994) (en banc)(saying “[i]mmunity contemplates exemption from liability that would otherwise exist on the merits”). A government-officer defendant is entitled to qualified immunity unless, at the time of the incident, the “preexisting law dictates, that is, truly compel[s],” the conclusion for all reasonable, similarly situated public officials that what Defendant was doing violated Plaintiffs’ federal rights in the circumstances. Id. at 1150.

When looking at the preexisting case law, courts, dealing with qualified immunity defenses, must always keep in mind the great distinction between following a precedent and extending a precedent. Two sets of circumstances may be “nearly” the same, but “nearly” can make a great legal difference at the edge. Because fair and clear notice to government officials is the cornerstone of qualified immunity, courts must diligently analyze the preexisting case .law to determine whether it really did provide plain notice to every reasonable government official that the pertinent conduct, in the specific circumstances, would clearly violate preexisting federal law.

The deliberate indifference standard of the Eighth Amendment basically places a duty on jailers to act reasonably to keep inmates safe. A “duty-to-act-reasonably” standard, by itself, is almost always too general a proposition to give meaningful notice to a public official that what he, in the specific circumstances, is doing violates established federal law.⁹ See generally, Stornelli v. United States Gypsum Co., 134 F.2d 461, 462 (2d Cir.1943) (Learned Hand, J.) (where the court was comparing jury’s responsibility in applying specific duty imposed by statute to that imposed by common law duty to take reasonable care saying “[i]t is true we think of the common-law duty as though it were imposed before the event, because it demands only ‘reasonable’ care; but that does not specify the conduct required and creates a duty incapable of being known in advance, and it is ascertained and imposed only retroactively.. .it is legislation in par-vo [in little]”).

When the facts of previous precedents are necessary to give clear warning that certain conduct in specific circumstances will violate federal law, we must look at the facts in the precedent and at the facts that confronted the government official in the case before the court. The two sets of facts must be materially similar. For qualified immunity purposes, a preexisting precedent is materially similar to the circumstances facing an official when the specific circumstances facing the official are enough like the facts in the precedent that no reasonable, similarly-situated official could believe that the factual differences between the precedent and the circumstances facing the official might make a difference to the conclusion about whether the official’s conduct was lawful or unlawful, in the light of the precedent. Thus, every fact need not be identical. But minor variations in some facts (the precedent lacks an arguably significant fact or contains an additional arguably significant fact not in the circumstances now facing the official) might be very important and, therefore, be able to make the circumstances facing an official materially different from the preexisting precedents, leaving the law applicable — in the circumstances facing the official — not clearly established when the defendant official acted.

To apply properly this “materially similar” principle, the court, surveying the relevant area of law, must discern the facts that were material to the federal law violation in similar preexisting cases.¹⁰ These facts then must be compared to the facts alleged in the case before the court. If there is an absence of a fact (or the presence of an additional fact) in the case before the court, the court must determine whether that fact might make a difference to any reasonable official who had to determine whether his conduct violated federal law in the circumstances in the immediate case. If the court determines that the variance might make a difference, the precedent — when factual particularity is needed to establish the law — cannot clearly establish the law applicable to the circumstances facing the defendant.

The district court in this case concluded the preexisting law was not clearly established, at the pertinent time, that the conditions at the Jail posed a substantial risk of serious harm to prisoners in the Jail. The district court recognized the troubling conditions at the Jail; but the district court seemed to conclude that, because this case presented no allegations of past serious injuries to prisoners at the Jail, the preexisting case law was too different from this case to have clearly established the law applicable to the alleged circumstances. We think the district court erred.

We accept that at least three of our decisions did clearly establish, at the pertinent time, that the conditions of confinement Plaintiffs allege did pose a substantial risk of serious harm to inmates. See Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir.1995); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974).¹¹ These cases contained facts on the conditions of confinement very similar to the facts alleged in this case on the conditions of confinement.¹²

It is true that each of these earlier eases also had, as part of the facts, that the pertinent institution had a history of inmate assaults with serious injuries. And this case lacks that alleged fact. But that factual variance cannot make a difference. As the Supreme Court had written (before the Plaintiffs were injured in the case), an Eighth Amendment violation can arise from unsafe conditions of confinement even if no assault or similar physical injury has yet occurred. See Helling, 113 S.Ct. at 2481 (Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of harm); see also Collier, 501 F.2d at 1300-01 (concluding that risk to inmates posed by exposed electrical wiring, deficient firefighting measures and mingling of inmates with contagious diseases constituted Eighth Amendment violation even though no showing was made that prisoners had been injured or had contracted disease due to these conditions). See generally Farmer, 114 S.Ct. at 1983 (relief available to plaintiff subjected to unsafe conditions even if no harm has yet befallen him).

We conclude, considering the preexisting case law of this circuit (which had cases with very similar facts) and of the Supreme Court (which made it plain that lack of physical injury did not mean that no Eighth Amendment violation had been established), that no reasonable sheriff could have concluded that the alleged conditions at the Jail failed to pose a substantial risk of serous harm, although no serious injury was alleged to have occurred at the Jail before the injuries suffered by Plaintiffs. That the alleged jail conditions posed no substantial risk of serious harm is incapable of being convincingly argued, considering the preexisting law.

Given that a substantial risk of serious harm was present, an Eighth-Amendment defendant might still be entitled to qualified immunity on a different basis: if he responded in a way that was arguably reasonable — in the light of the clearly established preexisting law — to the substantial risk of serious harm to inmates. But at the time of the assaults in this case, it was clearly established in this Circuit that it is an unreasonable response for an official to do nothing when confronted with prison conditions — -like the conditions alleged in this case — that pose a risk of serious physical harm to inmates. See LaMarca v. Turner, 995 F.2d 1526, 1537-38 (11th Cir.1993) (noting number of measures prison official should have taken to respond to unconstitutional ‘conditions at prison).

In this case, Plaintiffs allege that no measures were taken to improve conditions at the Jail. For example, the locks on the cells were never fixed; and supervision of the inmates was never improved. We conclude, therefore, that Plaintiffs adequately allege facts which (if true) show that, at the time of the incident, the Sheriffs acts were not even arguably reasonable in the light of the clearly established law.

On the jail conditions, the Sheriff — at the Rule 12 stage — is unentitled to qualified immunity for the claim that she was deliberately indifferent to the threat of serious harm to Plaintiffs.

C. Individual-Capacity Claims against Sheriff Harris for Deliberate Indifference to Plaintiff Owens’s Serious Medical Needs (Count III)

Plaintiff Owens’s claim against the Sheriff for deliberate indifference to his serious medical needs fails to state a claim upon which relief can be granted.¹³ We stress that the deputy who released Owens in the manner alleged in the complaint was not sued; so, his situation is not before us. We also stress that the Sheriff can have no respondeat superior liability for a section 1983 claim. See Geter v. Wille, 846 F.2d 1352, 1354 (11th Cir.1988) (“Supervisory officials cannot be held liable for the acts of employees solely on the basis of respondeat superior.”). See also Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (“Section 1983 will not support a claim based on a respondeat superior theory of liability.”). Owens makes no allegation that the Sheriff personally participated in Owens’s release. Nor does Owens allege that the Sheriff was aware of the particular circumstances of Owens’s medical condition when he was released or of the manner of his release on the night of the assault.¹⁴ The Sheriffs potential liability, therefore, can be only policymaker liability. But the complaint is insufficient to state a claim against the Sheriff as a policymaker.¹⁵

Owens alleges that the Sheriff had a “policy of releasing sick or injured inmates,” and concluded that the policy was “developed and implemented... with deliberate indifference to the medical needs of Owens after his assault.”¹⁶ Owens alleges no facts from which a fact-finder could find that the Sheriff actually knew that her release policy posed a sufficiently substantial risk of serious harm to inmates.

Owens does not allege that the Sheriff— on or before 3 July 1996 — was aware of earlier violations of Eighth and Fourteenth Amendment rights flowing from this kind of policy or from the release of other sick or injured inmates. Cf. Chestnut v. City of Quincy, 513 F.2d 91, 92 (5th Cir.1975)(in-dicating that complaint alleging police supervisor had notice of past culpable conduct of subordinates and failed to prevent recurrence of such misconduct states section 1983 claim for personal liability). Owens never alleges one such bad, earlier release incident at the jail.

An official cannot be held liable just for instituting a facially constitutional policy. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989) (saying no policymaker liability exists when subordinate applies facially valid constitutional policy in unconstitutional manner). See also Schmelz v. Monroe County., 954 F.2d 1540, 1544 (11th Cir.1992 ) (concluding no personal liability for Sheriff who instituted facially constitutional policy). Cf. Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding municipality liable for facially unconstitutional policy).¹⁷ In this case, Owens alleges that the Sheriff had a policy of releasing sick or injured inmates. We believe such a policy, on its face, violates no constitutional guarantees and is not a facially unconstitutional policy. See United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) (for policy to be facially unconstitutional it is required “that no set of circumstances exists under which the Act would be valid”). As Plaintiffs’ counsel wrote in their Reply Brief, such a release policy could be applied humanely and properly. We specifically reject the idea that the policy, on its face, is “obviously” a danger to inmates to the degree that the allegation of the policy itself is an allegation of personal awareness on the Sheriffs part of an excessive risk of serious harm to inmates just because the policy exists.

Owens’s allegation that the way the policy was applied by the Chief Deputy for Owens’s release violated his federal rights is also insufficient to state a claim against the Sheriff personally. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1300 n. 11, 89 L.Ed.2d 452 (1986) (discussing City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), and saying that single incident of unconstitutional conduct by nonpolicymaking official is insufficient to show that the “unconstitutional act was taken pursuant to a municipal policy” (emphasis in the original)). See also Caldwell v. City of Elwood, 959 F.2d 670 (7th Cir.1992) (explaining that allegation of single incident does not support reasonable inference of policy or custom). As we have already said, Owens — when he alleges the wrongful release of a sick or injured inmate — alleges only the single incident involving him. He alleges no past pattern of inmate releases that, if proved, might support that this Sheriff had a policy or custom of releasing inmates with deliberate indifference to their serious medical needs.

For similar reasons, Owens has failed to allege sufficient facts showing that the Sheriff can be held personally liable for inadequate training about the manner of releasing sick or injured inmates. Unless a policymaker knows of the need to train an officer in a particular subject area, no liability can arise from failure to train him. See Gold v. City of Miami 151 F.3d 1346, 1351 (11th Cir.1998).

Owens never alleges that he was wrongfully released because Chief Deputy Hart-ley, the person who actually released him, was inadequately trained to deal with the usual and recurring situations of releasing sick or injured inmates. The complaint does say, when describing the general jail conditions, that the state corrections department had “recommended” that all jail employees be trained at jail management seminars and that, by 1996, “almost no one who worked at the jail — including the sheriff, the jail administrators, and most jailers” had been professionally trained. But the complaint allegations never say that Chief Deputy Hartley did not have the recommended professional training. And the complaint never says that the “on the job” training for release of inmates was inadequate. Moreover, the complaint does not say that Chief Deputy Hartley released Owens in the manner he did because of inadequate training. Furthermore, the complaint does not allege facts indicating that the Sheriff knew that Deputy Hartley’s lack of training (if any) about releasing inmates posed an excessive risk of serious harm to inmates. And from the well-pleaded factual allegations in the complaint, no inferences can be reasonably drawn to make up for the missing facts. “[P]leadings must be something more than an ingenious academic exercise in the conceivable.” United States v. Students Challenging Regulatory Ag. Proc., 412 U.S. 669, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973).

About his release from jail, the information presented in the complaint is insufficient. For Count III, Owens has faded to state a claim for a constitutional violation against the Sheriff personally — as a policymaker.

Even if the complaint did state a claim against the Sheriff for a constitutional violation on account of the policy of releasing sick or injured inmates, we — in the alternative — conclude that the Sheriff would be entitled to qualified immunity. To defeat the Sheriffs qualified immunity defense, Owens must show that the preexisting applicable law was so clearly established in July 1996 that every reasonable Sheriff would have known that releasing sick and injured inmates would violate the constitutional rights of inmates. This legal clarity did not exist.

The Constitution, on its face, says nothing about medical care due inmates. The right to medical care was inferred by the Supreme Court. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976); Helling, 113 S.Ct. at 2480. And the scope of that right is, therefore, necessarily defined by case law. In July 1996, no case law established that releasing a sick or injured prisoner violated a constitutional right to receive care for a serious medical condition. To the best of our knowledge, no reported decision in this country had ever held such a thing.

In Estelle, the Supreme Court interpreted the Eighth Amendment’s words against “cruel and unusual punishments,” and, for the first time, determined that governments — presented with an inmate with a serious medical condition — had an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle, 97 S.Ct. at 290. The Court reasoned that, “[a]n inmate must rely on prison authorities to treat his medical needs; if authorities fail to do so, those needs will not be met.” Id. Under Estelle, the critical fact supporting the obligation on the government is the fact of incarceration: the prisoner cannot get his own care, nor can anyone from outside the jail get to him to help him.

In 1989, the Supreme Court restated this rationale — the importance of confinement — in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), a Fourteenth Amendment case. The Court wrote “[t]he affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” Id. at 1005-06.

It is the Estelle line of cases, cases which deal with deliberate indifference to an inmate’s serious medical needs, that bears the most on our study of the preexisting law and this case. See Helling, 113 S.Ct. at 2480; West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988) (saying that in Estelle the Court held that the State has constitutional obligation to provide adequate medical care to those whom it has incarcerated because inmate must rely on prison authorities to treat his medical needs); Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (saying that the Estelle decision “rested on the fact, recognized by common law and legislatures, that ‘an inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met’ ”). See also DeShaney, 109 S.Ct. at 1005.

In each of the cases in this line, the main fact is the fact of continuing incarceration of a sick or injured inmate.¹⁸ And whatever was written in the opinions should be read in the context of the fact of continuing incarceration. “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in eonneetion with the case in which those expressions are used.” Cohens v. Virginia, 19 U.S. 264 (6 Wheat.), 5 L.Ed. 257 (1821) (Marshall, C.J.).

In none of these earlier cases was the inmate complaining about his total release from confinement. “Release from confinement” is a highly material fact for Count III in this case. So, this case is materially different from every case cited by Plaintiffs or found by us, particularly cases decided before July 1996. Considering the absence of preexisting precedent dealing with the release of sick or injured inmates, we must conclude that a reasonable sheriff, in July 1996, could determine that the fact of his having a policy of releasing sick or injured inmates — that is, giving inmates their liberty' — could make all the difference on whether a medical-needs-related violation of the Federal Constitution would arise for the sick or injured inmates.

Not only was the legal landscape, in July 1996, totally barren of cases deciding that giving a sick or injured prisoner his liberty would violate his federal rights,¹⁹ the only case to our knowledge that had earlier discussed the pertinent legal point reached the opposite conclusion. Fewer than two months before the incidents underlying this case, a federal district judge in California had written — in a reasoned opinion- — that a sick prisoner who was released on parole had no claim for denial of medical care because, “[a]t the time of his parole, plaintiff was not suffering from a ‘deprivation of liberty’ that precluded him from obtaining medical care; accordingly, plaintiff had no constitutional guarantee of State-provided medical care.” Wakefield v. Thompson, No. C 95-0137 FMS (N.D.Cal. Apr. 30, 1996).²⁰

The decided cases, preexisting the inmate release underlying this suit, said that the decisive fact which obligated a prison official to provide medical care to a prisoner is the fact of the prisoner’s involuntary-confinement, confinement that prevented the prisoner from obtaining care from other sources. By releasing a prisoner (for example, at a public place), a sheriff can enable the prisoner to obtain care from other sources (something that eventually happened in this very case). A reasonable Sheriff in 1996 could believe that releasing sick and injured inmates was lawful. The “fact of confinement” in the preexisting cases limited the duty of jailers and — more important for qualified immunity purposes — removed the power of the preexisting precedents to put sheriffs on fair and clear notice that releasing injured prisoners certainly would constitute deliberate indifference to an inmate’s serious medical needs.

It is simply not true that the federal law in July 1996 was already so clearly established to prohibit a policy of releasing sick or injured inmates that reasonable sheriffs would know the policy was unlawful. The Sheriff therefore is entitled to immunity for her policy of releasing sick and injured inmates.²¹

V. Conclusion

From the complaint’s allegations, we conclude that Plaintiffs have sufficiently stated a claim against the County and the Sheriff for the conditions at the Butler County Jail. We also conclude that Plaintiffs have insufficiently alleged that the Sheriff personally is liable for deliberate indifference to Owens’s serious medical needs. In addition, we conclude that the Sheriff in her official capacity is immune from suit. Moreover, we conclude that, if the allegations against the Sheriff are otherwise sufficient to state a claim, the Sheriff in her individual capacity is immune from suit for deliberate indifference to Owens’s serious medical needs.

The district court’s order is REVERSED, except for the dismissal of all claims against the Sheriff in her official capacity and for the dismissal of the claims against the County and the Sheriff, in her individual capacity, on deliberate indifference to Owens’s serious medical needs.

The case is REMANDED for further proceedings on Counts I and II.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION. Joe MARSH and Leroy Owens, Plaintiffs, v. BUTLER COUNTY, ALABAMA; the Butler County Commission; and Diane Harris, Sheriff of Butler County, in her individual and official capacity, Defendants.

Civil Action No. 97-0-1421-N.

Sept. 25,1997.

COMPLAINT

I.INTRODUCTION

1. This is a civil rights action brought by two men injured at the Butler County Jail (“the jail”) due to the deliberate indifference of government officials responsible for their protection and care.

2. In July 1996 the jail was out of control. Because the locks had not worked for months, most inmates on the second floor were never locked down in individual cells. Because inmates were never locked down, and because the jail was severely understaffed, jailers did not enter and monitor inmate living areas. Inmates were not segregated based on their proclivity for violence or reasons for confinement. Those who misbehaved were not disciplined or even isolated. Some inmates obtained weapons from the outdoor exercise yard or by vandalizing the dilapidated jail facility itself. Repeated requests for additional staff at the jail were denied, and the staff that existed was not professionally trained to operate the facility in a secure manner.

3. An intolerable risk of inmate violence resulted from these conditions and practices. This risk, of which defendants were fully aware, manifested itself in brutal assaults against plaintiffs Joe Marsh and Leroy Owens. On July 2, 1996, Marsh was repeatedly beaten, kicked, and stabbed by four inmates on the jail’s second floor. The next day, the same four inmates beat Owens, a diagnosed paranoid schizophrenic who had been placed in general population. For more than 30 minutes, they smashed Owens’s head against a metal table, beat him with a water cooler and a pipe, stabbed, punched, and stomped him.

4. Both Marsh and Owens required emergency medical treatment for their injuries. Marsh was returned to the jail, where he was again attacked by the inmates who had beaten him before. After receiving treatment for numerous wounds and bruises, Owens- — -in barefeet and bloody clothes, the left side of his face swollen beyond recognition — was taken by a deputy sheriff to a motel along the 1-65 highway at 3 a.m. and abandoned. No provision was made for his care. After the motel refused to rent him a room, Owens wandered across the interstate overpass, looking for a place to sleep.

5. As a result of these events, plaintiffs Marsh and Owens suffered serious physical injury, pain, and suffering. These events occurred because of the deliberate indifference of defendants Butler County, the Butler County Commission, and Sheriff Diane Harris. In this action, plaintiffs seek compensatory and punitive damages against these defendants as allowed by law.

II.JURISDICTION

6. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4), and the United States Constitution.

III. VENUE

7. The Middle District of Alabama is an appropriate venue for this action under 28 U.S.C. § 1391(b)(1) because defendants reside in this district.

8. The Middle District of Alabama is also an appropriate venue under 28 U.S.C.' § 1391(b)(2) because “a substantial part of the events or omissions giving rise to the claim[s] occurred” in this district.

IV. PARTIES

9. Plaintiff Joe Marsh is currently held at the Atmore Work Release Center. Between March 28 and August 6, 1996, Marsh was imprisoned at the Butler County Jail. At the time of the events described in this Complaint, Marsh had been convicted of an offense and was awaiting transfer to a state correctional institution.

10. Plaintiff Leroy Owens is a resident of Butler County, Alabama. Between July 1 and the early morning of July 4, 1996, Owens was detained at the Butler County Jail. On July 18, Owens was involuntarily committed to a mental hospital.

11. Defendants Butler County, Alabama, and the Butler County Commission are sued as the government entities responsible under state law for properly maintaining, operating, and funding the jail. See, e.g., Ala.Code §§ 11-12-14, 11-12-15(a), 11-14-10, 11-14-20, 11-14-22, 11-16-28, 14-6-19, 14-6-81, 14-6-96, 14-6-105 (1975). At all times relevant to the events described herein, the actions and omissions of Butler County and the Butler County Commission have been taken under color of law.

12. Defendant Diane Harris is sued in her official capacity as Sheriff of Butler County. As Sheriff, Harris oversees the general operation of the jail. She is responsible under state law for the jail’s general supervision and control. See, e.g., Ala.Code §§ 11-14-21, 11-16-29, 14-6-1, 14-6-4, 14-6-8, 14-6-17, 14-6-19, 14-6-21, 14 — 6—40, 14-6-94, 14-6-95, 14-6-96, 14-6-97 (1975). At all times relevant to the events described herein, the actions and omissions of Sheriff Harris have been taken under color of law, and Sheriff Harris has acted as a final policymaker of Butler County for those aspects of jail operation under her control.

V. FACTUAL ALLEGATIONS

Conditions at the Butler County Jail

13. The Butler County Jail (“the jail”) is located approximately 100 yards from the county courthouse in downtown Green-ville, Alabama. It is a two-story building made of cement and brick, surrounded by a small yard and a metal fence.

14. The first floor of the Jail consists of an open room where jailers sit during their shifts, a cell for female inmates, an isolation cell, trustee cells, a booking/legal interview room, a kitchen, and various storage rooms and hallways. The second floor of the Jail is divided into two sides; the front side and the back side. There are two eight-person cells and a dayroom on the front side. There is one four-person cell, two eight-person cells, and a small dayroom on the back side. There are also holding cells on each side of the second floor.

15. The jail was constructed in 1929 and 1930. Defendants have failed to maintain the facility adequately over the years, and by the summer of 1996 it was extremely dilapidated. Sewage leaked from overhead pipes. Showers were covered with rust, mildew, and peeling paint. Sinks and toilets were dilapidated and inoperable. Hallways were littered with trash. Windows were cracked and could not be closed. Shards of broken glass lay in window sills. Rats, cockroaches, and other rodents and vermin entered the jail through broken windows and cracks in the walls.

16. The poor physical condition of the jail and defendants’ inadequate monitoring practices allowed some inmates to vandalize, break windows, and rip metal pipes and other dangerous objects from the structure. In addition, inmates were able to obtain screwdrivers, sticks, and “shanks” from the outside exercise yard, due in part to the jail’s low perimeter fence and defendants’ failure to supervise and search inmates.

17. Since at least 1995, the locks to inmate cells on the second floor (except holding cells) were inoperable. As a consequence, during the summer of 1996 inmates were never locked down in individual cells. On each side of the second floor, 24 hours per day, they could open cell doors and walk into the hall, other cells, or the dayrooms at will.

18. Because inmates on both sides were never locked down, jailers were too afraid to conduct visual inspections of inmate cells on the second floor. While jailers would sometimes stand at the door to each side, look down the hallway, and listen for noise, they could not from that position look into cells and monitor the health and safety of inmates. There was no visual or audio surveillance system in place on the second floor. No jailer was assigned to the second, floor. Jailers did not conduct “counts” to determine whether inmates were alive and well.

19. In August 1995, the jail inspector for the Alabama Department of Corrections recommended that all Butler County jailers be trained at a jail management seminar. Nevertheless, by July 1996 almost no one who worked at the jail— including the Sheriff, the jail administrator, and most jailers — had received any professional training. Once hired, jailers immediately began work at the jail and were supposed to learn their duties “on the job.”

20. The jail was not operated in accordance with written policies and procedures. Although a single copy of a policy manual, drafted between 1981 and 1987, lay in a desk drawer, its content bore no relation to actual conditions and practices at the jail during the summer of 1996.

21. The jail was grossly understaffed. Often, only one jailer worked there at a time — despite the fact that jailers were responsible for controlling the entire inmate population (which has sometimes exceeded 50 inmates); administering inmate intake and release; controlling the electronic gate for the fence surrounding the jail; supervising visitation and outdoor exercise; handling mail; coordinating food service; dispensing medication; supervising trustees; and answering the jail telephone. On weekends and between 5 p.m. and 8 a.m. on weekdays, jailers were also responsible for answering telephone calls to the Butler County Sheriffs Department and operating the dispatch radio. Due to their overwhelming responsibilities at the jail, jailers had to rely on unsupervised inmate trustees to perform such tasks as distributing medicine, unloading supplies, and even handling the jail’s keys.

22. Jailers spent most of their time on duty sitting at a desk at the entrance to the jail on the first floor. From this room jailers could not view any of the inmate cells, dayrooms, or the kitchen. Most inmate living areas at the jail went totally unsupervised.

23. Inmates on the second floor were unable to contact jailers directly. To get the attention of jailers or inmate trustees, inmates had to shout out the windows or bang on the walls. Jailers often did not respond.

24. Inmates entering the jail were not screened. Jailers did not ask new inmates about their mental health background or other medical conditions. They did not ask inmates whether they had conflicts with persons already imprisoned at the jail.

25. No system of classification existed at the jail. Pretrial detainees were not segregated from convicted inmates. Violent offenders were not segregated from non-violent offenders. Misdemeanants were not segregated from felons. Mentally ill persons were not segregated from those in good mental health. Juveniles were not segregated from adults. Several jailers only considered the availability of bed space when deciding where to place new inmates. These failures created an intolerably high risk of intimidation, assault, and other abuse among inmates at the jail.

26. No system of discipline existed at the jail. The jail did not discipline or even segregate inmates who cursed, flooded cells, broke windows, destroyed property, attempted to escape, threatened jailers, or assaulted other inmates.

27. During the first six months of 1996, there were at least three separate inmate escapes from the jail. Each escape occurred when only one jailer was on duty. After each escape, Jail Administrator Thelma Teague advised Sheriff Harris that the jail needed more staff. Butler County Commissioners were repeatedly informed that more staff was needed at the jail. The jail inspector for the Alabama Department of Corrections repeatedly advised Butler County to release jailers from radio dispatch duty so that they could concentrate on supervising the jail.

28. In February 1996, the jail inspector for the Alabama Department of Corrections informed defendants that the jail was not reasonably secure.

29. Defendants’ policies and customs created a substantial risk of serious harm to inmates at the jail. All defendants knew and should have known about this risk, which was longstanding, pervasive, well-documented, and apparent to any knowledgeable observer. They were further placed on notice by the critical inspection reports of several state agencies; numerous inmate complaints and requests for assistance; a letter from the undersigned counsel dated April 26, 1996, describing security deficiencies at the jail¹; and a Complaint filed in this Court on May 14, 1996, seeking injunctive and declaratory relief on behalf of all inmates at the jail.²

30. By July 1996, all defendants had failed to take measures to abate this substantial risk of serious harm. They did not improve the physical condition of the jail or maintenance practices. They did not repair the locks on the second floor. They did not improve supervision of inmates at the jail. They did not search the jail for weapons. They did not improve jailer training. They did not begin to administer the jail in accordance with relevant written policies and procedures. They did not increase staffing at the jail or relieve jailers of their non-jail-related responsibilities. They did not implement screening, classification, or disciplinary procedures.

31. As a result of defendants’ deliberate indifference to the substantial risk of serious harm to inmates at the jail, Joe Marsh and Leroy Owens were the victims of brutal inmate assaults in July 1996.

Assault of Joe Marsh

32. On the early afternoon of July 2, on the back side of the second floor, four inmates entered the cell where Joe Marsh was resting on a bunk bed. One of the inmates challenged Marsh to go into the dayroom and fight. When Marsh refused, the inmate struck him across the head with a metal pipe.

33. The other three inmates joined in and assaulted Marsh for several minutes. They punched, kicked, and hit Marsh with the pipe while he was balled up in the corner. One inmate cut Marsh with a screwdriver while the other three held him.

34. During the assault, other inmates on the back side shouted and pounded on the walls, trying to get help from the jailers downstairs. After being struck one last time in the head by the pipe, Marsh managed to walk, holding his hand over his eye, toward the entrance to the back side. Marsh’s face and head were covered in blood.

35. As a result of the assault, Marsh suffered lacerations across his forehead, on the back of his head, and on his back. The bone above Marsh’s left eyebrow was crushed. His left eye droops, and he has nerve damage in his forehead. Since he left the jail, Marsh has suffered frequent headaches and nightmares about the assault.

36. Ten to fifteen minutes after the assault ended, jailer Subrena Stone came upstairs to get Marsh. Investigator Kenny Harden drove Marsh in his patrol car to the emergency room at Stabler Memorial Hospital. Marsh identified to Harden the four inmates who assaulted him. After returning to the jail, Marsh was placed in a holding cell on the back side.

37. No actions were taken against the four inmates on the back side who brutally assaulted Marsh. They were not disciplined, segregated, or interrogated. They were not transferred to a different jail or even out of general population. Neither they nor the jail were searched for weapons.

38. On the afternoon of July 3, jailer Stone overheard two of these four inmates plotting to pull her into their cell and assault her. Stone did not discipline or segregate these inmates. Later that evening, the same four inmates assaulted Leroy Owens.

39. The next day, after a trustee opened the door to the back side, two of the four inmates who had assaulted Marsh and Owens grabbed a fire extinguisher, walked to the holding cell, and discharged its contents into Marsh’s cell. The chemicals from the extinguisher filled the cell. Marsh nearly suffocated.

Assault of Leroy Owens

40. Since at least 1979, Leroy Owens has suffered from mental illness. He has been diagnosed as a paranoid schizophrenic with borderline intellectual functioning. He has been institutionalized in a number of mental hospitals. In 1996, his condition grew worse. By the summer, he frequently told others that he was a “prophet of God” and went walking on “journeys” for days at a time.

41. On July 1, 1996, Leroy Owens was arrested and brought to the jail. He was charged with misdemeanor harassment. The affidavit used to obtain an arrest warrant stated that Owens was a “mental patient” who was “talking nonsense.”

42. Arriving at the jail, Owens was not asked any questions about his mental illness or other health problems. He was placed in general population on the back side of the second floor.

43. On July 2, Owens’s grandmother called the jail to ask if his medicine, Lithium, could be brought to the jail. She explained that Owens was “mental.” Owens’s uncle brought the medicine to the jail that afternoon.

44. At the jail, Owens’s mental condition was evident. He continued to say that he was a prophet of God. One inmate told a jailer that Owens needed to be moved because he was “not right in the head” and was aggravating other inmates. Some inmates began to harass Owens and complain about his hygiene. They forced him to move from cell to cell. They moved his shoes and put his mattress on the floor.

45. Owens asked jailer Subrena Stone to place him in a cell by himself. She refused, stating that the jail was full.

46. On the evening of July 3, after being shoved, Owens walked from the middle cell to the dayroom. The same four inmates who had assaulted Marsh now followed Owens.

47. In the dayroom, one of these four inmates hit Owens over the head with a metal pipe. Another hit him with a water cooler. They smashed his head against a metal table, kicked, stomped, stabbed, and beat him. Blood spurted over the floor and wall. Owens grabbed the cell bars and screamed. He could not breathe.

48. When the assault began, other inmates on both sides of the second floor began to pound on the walls and call out for help. “They’re killing him up here,” one inmate yelled. Owens himself screamed for help. No one came upstairs.

49. Jailer Preston Nicholson was the only person on duty at the jail. After the assault started, he heard the pounding and yelling of inmates. Nicholson called the Greenville City Police. Two city police officers arrived, but refused to go upstairs. Nicholson then called Sheriff Harris and Jail Administrator Thelma Teague. Both refused to come to the jail. Nicholson then called Chief Deputy Phillip Hartley, who came to the jail.

50. The assault on Owens lasted between 30 minutes to an hour. Several times, the four inmates thought they heard the rustling of keys coming up the stairs. They stopped beating Owens and ran back to their cells. When they realized that no one was coming upstairs, however, they returned to the dayroom and continued to beat Owens.

51. Finally, the assault ended. Owens lay in a pool of blood on the dayroom floor. Inmates continued to yell for help.

52. About twenty minutes after the assault ended, Chief Deputy Hartley walked upstairs, opened the door to the back side dayroom, and brought Owens downstairs. Owens was transported to Stabler Hospital at 12:17 a.m. on July 4. During the ambulance ride, paramedics suctioned blood from Owens’s oral airway. He was treated at the hospital for pronounced swelling, contusions, and pain in his jaw, shoulder, head, eyes, back, chest and along his ribs. Stitches were given for several wounds. A hole was torn through his lip.

53. At 3:10 a.m. on July 4, Stabler Hospital discharged Owens into the care of the Butler County Sheriffs Department. Both Hartley and Deputy Sheriff Benny Lowery signed a discharge sheet which instructed the Sheriffs Department to follow specific procedures to care for Owens’s head wounds and other injuries. It instructed them to monitor his level of consciousness, pupils, vision, and coordination, and to call the hospital immediately if any change occurred.

54. The Sheriffs Department did not follow the directions given by medical personnel. Instead, back at the jail, pursuant to defendants’ policy and custom of releasing sick or injured inmates, Hartley instructed Owens to sign his own bond. At approximately 3:30 a.m., Hartley drove Owens to the Thrifty Inn near the 1-65 interstate highway. Owens was in bare-feet. His clothes were bloody. His face was severely swollen and bruised. After Owens got out of the car, Hartley drove away.

55. The clerks at the Thrifty Inn refused to rent Owens a room and called the Greenville Police. An officer followed in his car as Owens walked. Owens wandered across the 1-65 overpass dazed and in pain. A Waffle House restaurant denied him entry because of his bare feet. Finally, the city police officer ordered the clerk at the Holiday Inn to rent Owens a room, where he went to sleep.

56.The next day, after Owens awoke, he was in terrible pain. He called his grandmother’s house. Owens’s sisters came to the motel. An ambulance was called. Paramedics took Owens back to the hospital, where the doctor prescribed pain medication. Family members took the following photograph of Owens’s condition:

[[Image here]]

57.Still in pain, Owens returned to Stabler Hospital for treatment on July 8. On July 18, the Probate Court of Butler County involuntarily committed Leroy Owens to Searcy Mental Hospital. Owens has since been released. Because of the assault at the jail, he still experiences pain and limited mobility in his right shoulder, and has uncontrollable shaking in his right arm.

58. Butler County, the Butler County Commission, and Sheriff Harris were the final decisionmakers for the policies and customs that led to the injuries suffered by-Marsh and Owens. These policies and customs were developed and implemented with deliberate indifference to the substantial risk of serious harm faced by inmates Marsh and Owens at the jail, and with deliberate indifference to the medical needs of Owens after his assault.

VI. CAUSES OF ACTION

59. Plaintiffs Marsh and Owens support the following claims by reference to the previous paragraphs of this Complaint:

Count I

60. Defendants’ deliberate indifference to the substantial risk of serious harm to inmates at the Butler County Jail deprived Joe Marsh of his rights under the Eighth and Fourteenth Amendments to the United States Constitution.

Count II

61. Defendants’ deliberate indifference to the substantial risk of serious harm to inmates at the Butler County Jail deprived Leroy Owens of his rights under the Fourteenth Amendment to the United States Constitution.

Count III

62. Defendants’ deliberate indifference to the serious medical needs of Leroy Owens deprived him of his rights under the Fourteenth Amendment to the United States Constitution.

VII. PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully pray that this Court:

1.Assume jurisdiction over this action.

2. Declare that the acts and omissions described herein violated plaintiffs’ rights under the Constitution and laws of the United States.

3. Enter judgment in favor of plaintiffs Marsh and Owens for compensatory and punitive damages, as allowed by law, against each defendant, jointly and severally.

4. Award plaintiffs the costs of this lawsuit and reasonable attorney’s fees.

5. Order such additional relief as this Court may deem just and proper.

Robert E. Toone

Southern Center for Human Rights

83 Poplar Street, N.W.

Atlanta, Georgia 30303-2122

Telephone: (404) 688-1202

Attorney for Plaintiffs

On the Complaint

Michael Goodwin, J.D. Candidate 1998,

University of Louisville School of Law

Shaun Palmer, J.D. Candidate 1999,

Harvard Law School

Kelley Paul, J.D. Candidate 1998, Santa

Clara University School of Law

1 . The Supreme Court has set out the important policy considerations supporting the defense of qualified immunity for government officers sued for money damages in their individual capacities. See e.g. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (qualified immunity helps protect government officials from expenses of litigation, prevents diversion of energy from pressing public issues and alleviates deterrent effect of threat of lawsuits on people's acceptance of public office).

The basic law of this circuit for qualified immunity is set out in Lassiter v. Alabama A&M University, 28 F.3d 1146 (11th Cir.1994) (en banc). See Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.1997) (en banc) (“The principles of qualified immunity set out in Lassiter v. Alabama A&M Univ., continue to be the guiding directives for deciding cases involving the question of a state actor’s entitlement to qualified immunity in this circuit”) (internal citation omitted).

2 . A trial or other proceedings might show the actual facts to be different from the allegations set out here as "facts.”

3 . The Butler County Commission is the governing body of Butler County; so the liability analyses for the two entities are identical. They will be referred to together as the "County” for the remainder of the opinion.

4 . A reader of the complaint may wonder if the complaint actually purports to sue the Sheriff in her individual capacity. It does not.

According to Fed.R.Civ.P. 8(a), a complaint must contain, "1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, 2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 3) a demand for judgment for the relief the pleader seeks.”

In this case, that part of the complaint which purports to state the claim against Harris does specifically address the capacity in which the Sheriff is sued. It says these words about capacity: “Defendant Diane Harris is sued in her official capacity as Sheriff of Butler County.” Thus, the complaint's "statement of a claim” does not purport to make a claim against the Sheriff in her individual capacity.

The caption to the complaint contains these words: "Diane Harris, Sheriff of Butler County, in her individual and official capacity.” But the caption of the complaint is not part of the statement of the claim under Rule 8. The caption is something apart, being mandated by a different rule: Fed.R.Civ.P. 10. The caption is chiefly for the court's administrative convenience. It may, however, sometimes be useful to look at the caption—when the Rule 8 statement of a claim is ambiguous about a party’s capacity—to settle pleading ambiguities. See Hobbs v. E.E. Roberts, 999 F.2d 1526, 1529-30 (11th Cir.1993) (using several factors, including caption, to resolve ambiguity of whether official sued in official or individual capacity). To use the Rule 10 caption to create an ambiguity when the statement of the claim is itself not ambiguous is incorrect.

Nevertheless, we accept this case and will decide this case as one in which the complaint purports to sue the Sheriff in both her official and individual capacities. The reason is that, in the district court, the parties and the district judge clearly litigated the case in that way. The Sheriff, from the start, advanced the defense of qualified immunity: a defense that is valid only against claims asserted against a government official in her individual capacity. Never did the Sheriff challenge the complaint on the specific ground that it did not even purport to assert a claim against her except in her official capacity. Pursuant to Fed.R.Civ.P. 15(b), "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Although Rule 15 uses the word ''tried,” we accept Rule 15(b) as a guide — by way of analogy, at the appellate level — for cases never tried, but litigated on motions.

5 . Marsh was a convicted criminal at the Jail and therefore entitled to Eighth Amendment protection. Owens, however, was a pretrial detainee, to whom the Eighth Amendment does not apply. See Tittle v. Jefferson County Comm’n., 10 F.3d 1535, 1539 n. 3 (11th Cir.1994) {en banc) (citing Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 1412-13 n. 40, 51 L.Ed.2d 711 (1977)). Plaintiffs mentioned — but did not argue — in a footnote in their brief to the panel that it is not altogether plain that the subjective deliberate-indifference standard applies in Fourteenth Amendment cases for pretrial detainees. See generally Tallahassee Mem’l Reg’l Med. Ctr. v. Brown, 815 F.2d 1435, 1445 n. 16 (11th Cir.1987) (single footnote in appellant’s brief is not enough to present issue). The panel decided the case as essentially an Eighth Amendment case. Marsh v. Butler County, 225 F.3d 1243, 1256 n. 6 (11th Cir.2000). In the en banc brief, Plaintiffs, in a couple of sentences, mention the issue of possible differences between the Eighth and Fourteenth Amendments; but Plaintiffs do not argue the point. We have said that the standard for providing basic human needs to those incarcerated or in detention is the same under both the Eighth and Fourteenth Amendments. See Hamm v. DeKalb Cty., 774 F.2d 1567, 1573-74 (11th Cir.1985); Lancaster v. Monroe Cty., 116 F.3d 1419, 1425 n. 6 (11th Cir.1997) (minimum standard for providing medical care to pretrial detainee under Fourteenth Amendment is same as minimum standard required under Eighth Amendment for convicted prisoner). Given the lack of argument, we do not consider or decide en banc whether or how the Eighth and Fourteenth Amendment standards differ. See generally Tapley v. Collins, 211 F.3d 1210, 1217 n. 10 (11th Cir.2000) (nature of briefing impacts on court’s discretion to decide issues). We accept our precedents treating the Amendments as the same in the context of incarceration. We will refer to the Amendments interchangeably, most often referring to the Eighth.

6 . We address the claims against the County in detail only for the conditions of confinement. Plaintiffs also allege deliberate indifference to Owens's serious medical needs based on his release. They make this claim against Defendants in general, which would seem to include the County. Nothing indicates, however, that the County was involved in the alleged deprivation of medical care to Owens. Moreover, under Alabama law the County is not responsible for assuring procedures are in place for inmates to get medical care. Alabama law assigns counties a "limited role in building and funding the jails.” See Turquitt v. Jefferson Cty., Ala., 137 F.3d 1285, 1290 (11th Cir.1998) (en banc). Therefore, the County is not a responsible party for the alleged tort of deliberate indifference to Owens’s medical needs. This claim was properly dismissed against the County. Therefore, this opinion will address the deliberate-indifference-to-serious-medical-needs claim (Count III) only in the context of the Sheriff’s liability.

7 . The County has the duly to construct and to maintain a jail of sufficient size and strength to house the inmates. See Ala.Code §§ 11-14-10, 11-14-13 (1989). Looking to Alabama case law to define the County's responsibilities under the statute, we see that "the [Alabama] legislature intended to require the county commission to keep a jail and all equipment therein in a state of repair to preserve it from failure or decline.” Keeton v. Fayette Cty., 558 So.2d 884, 886 (Ala.1989) (summary judgment for County improper when Plaintiff alleged negligence in County’s maintenance of jail); cf. Turquitt, 137 F.3d at 1290 (en banc) (concluding no county liability for improper operations of the jail). Under Alabama law, a county might be liable when the physical conditions of the jail have deteriorated and pose a serious threat to the safety of inmates and when those conditions have caused the injury to the inmates.

8 . "A claim of immunity is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated.” Mitchell, 105 S.Ct. at 2816; Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2154, 150 L.Ed.2d 272 (2001) (ruling on qualified immunity requires a separate analysis "not susceptible of fusion with the question of whether there was [a constitutional violation]”). For example, as we have just discussed, if a sheriff responds reasonably to unsafe jail conditions, the sheriff will avoid liability on the merits of an Eighth Amendment claim. But, in addition, if a sheriff responds in an arguably reasonable way to unsafe jail conditions, the sheriff will avoid suit pursuant to the defense of qualified immunity. See Lassiter, 28 F.3d at 1149 ("Unless a government agent's act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit.”) (citing Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986)); cf. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558 (11th Cir.1993) ("When an officer asserts qualified immunity, the issue is not whether probable cause existed in fact, but whether the officer had 'arguable' probable cause to arrest.”).

Government officials are not required to err on the side of caution. See Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984). And qualified immunity recognizes "the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). Qualified immunity is meant to allow government officials to act with "independence and without fear of consequences” when the law is not clearly established. Id. at 2739.

Take a complaint’s facts as true. If reasonable people could disagree about whether a sheriff — in the light of the then clearly established law — responded reasonably to the complaint's alleged circumstances, qualified immunity must apply; the sheriff has responded in an arguably reasonable way. The plaintiff's allegations on their face show that relief against the official, in his individual capacity, is barred by the defense of qualified immunity. The law applicable to the alleged circumstances facing the official was not already clearly established, that is, a reasonable government official could not truly know when he acted whether the acts were lawful or unlawful under the federal law. See Harlow v. Fitzgerald, 102 S.Ct. at 2738 (official could not "fairly be said to 'know' that the law forbade conduct not previously identified as unlawful” when law not clearly established).

For a court to conclude that — in the light of the clearly established law at the pertinent time — a hypothetical jury, considering all the complaint's alleged facts as true, could decide that the defendant responded unreasonably is not sufficient to overcome the qualified immunity defense raised in a Rule 12(b)(6) motion. This formulation is nothing more than saying that reasonable people might or might not think — this is, could disagree about whether— the government actor behaved unreasonably. It is this kind of situation — that is, one where the alleged facts (accepted as true) leave the legal consequences uncertain — for which the defense of qualified immunity was designed.

In Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1186 (11th Cir.1994), we see some dicta: "a finding of deliberate indifference necessarily precludes a finding of qualified immunity”. We reject that dicta because it incorrectly jumbles the merits of an Eighth Amendment violation with the separate concept of an immunity defense.

9 . We acknowledge that preexisting case law, tied to the precise facts, is not in every situation essential to establish clearly the law applying to the circumstances facing a public official so that a reasonable official would be put on fair and clear notice that specific conduct would be unlawful in the faced, specific circumstances. See United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) ("[A] general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question.”) (discussing 18 U.S.C. § 242); Lassiter, 28 F.3d at 1150 n. 4 (leaving open possibility that "occasionally the words of a federal statute or federal constitutional provision will be specific enough to establish the law applicable to particular circumstances clearly and to overcome qualified immunity even in the absence of case law”); Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.2000) (recognizing narrow exception of not requiring preexisting case law when "the official's conduct ‘was so far beyond the hazy border’ between constitutional and unconstitutional conduct, that the official had to know he was violating the Constitution [the Fourth Amendment] even without case-law on point”) (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.1997)).

Some general statements of law are capable of giving fair and clear warning in some circumstances: the occasional "obvious clarity” cases per Lanier. But in other cases, as Lanier says, "a very high degree of prior factual particularity may be necessary.” 117 S.Ct. at 1227. Especially where the applicable legal standard is a highly general one, such as "to act reasonably” or "to act with probable cause,” preexisting case law, that has applied the general law to specific circumstances, will almost always be necessary to draw the bright line that is capable of honestly giving fair and clear notice that an official’s conduct will violate federal law. See Anderson, 107 S.Ct. at 3040 (noting that pertinent qualified immunity question in probable-cause case is "fact-specific” question of whether a reasonable official could have believed, in light of clearly established law, that official’s behavior was lawful under circumstances); Lassiter, 28 F.3d at 1150 (en banc) (stating that "general propositions” have little to do with qualified immunity, and the bright line that must be crossed to surrender qualified immunity "is not found in abstractions — to act reasonably, to act with probable cause, and so forth — but in studying how these abstractions have been applied in concrete circumstances”) (quoting Barts, 865 F.2d at 1194); Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1573, 1575 (Edmondson, J., dissenting) approved en banc, 998 F.2d 923 (11th Cir.1993) (”[w]hen considering whether the law applicable to certain facts is clearly established, the facts of the cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar.”); Jenkins, 115 F.3d at 826 (reasonableness standard was not principle that provided adequate warning because that general standard could not apply with "obvious clarity” to concrete circumstances faced by school officials). See also Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001) ("This inquiry [whether a legal right was already clearly established], it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition”); Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1699-1700, 143 L.Ed.2d 818 (1999) (saying "the right allegedly violated must be defined at the appropriate level of specificity....”). Thus, in the present case, when we have denied qualified immunity, we have done so because we believe that fact-specific, preexisting case law did put reasonable sheriffs on clear notice given the alleged circumstances.

The defense of qualified immunity bars absolutely a judge and jury from making, in effect, new law for a case to fit the particular circumstances that faced the public official at the time of the pertinent event and then applying this new law basically retroactively in the case to make an award of damages. If a public official is to be punished by an imposition of damages against him personally, the punishment must be for violating some clear, legal duty he — in the light of the specific circumstances before him — plainly already had at the time of the pertinent event, and not for violating what is, in effect, some new legal duty recognized or announced by the judge and jury in the official’s trial, long after the time of the pertinent event.

10 . When case law is needed to "clearly establish” the law applicable to the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state. See Jenkins, 115 F.3d at 827 n. 4. We do not understand Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), to have held that a "consensus of cases of persuasive authority” from other courts would be able to establish the law clearly. Id. at 1700. Each jurisdiction has its own body of law, and splits between jurisdictions on matters of law are not uncommon. We do not expect public officials to sort out the law of every jurisdiction in the country.

11 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted all decisions of the Fifth Circuit handed down prior to close of business on 30 September 1981 as binding precedent in this circuit.

12 . In Hale, evidence was presented of these conditions: 1) prisoners were not segregated based on their proclivity for violence, 2) there was only one jailer on duty, 3) the jailer’s quarters were out of earshot and eyesight of the prisoners' cell, and 4) fights occurred between inmates on a regular basis resulting in injuries requiring medical attention and hospitalization. In Williams, the court concluded that the totality of the circumstances posed a substantial risk of serious harm due to inmate violence. The circumstances in the prison showed this environment: 1) widespread possession of weapons, 2) no confiscation of weapons, 3) no segregation of violent from nonviolent inmates, 4) previous assaults, 5) overcrowding, 6) too few guards to supervise properly inmates, and 7) multiple reports of stabbing, some resulting in death. In Collier, the court concluded that these conditions pose a serious risk of harm to inmates: 1) possession of weapons by prisoners, 2) no established procedure for confiscating weapons, 3) lack of classification according to severity of offense, 4) no procedure for reporting previous assaults, 5) overcrowding, 6) lack of supervision by guards, 7) custodial responsibility assigned to incompetent and untrained inmates, and 8) at least 27 reported instances of armed assaults by inmates on other inmates.

In this case, Plaintiffs allege these things: 1) widespread possession of weapons by inmates, 2) weapons were not confiscated from prisoners, 3) no segregation of nonviolent inmates from violent inmates, pretrial detainees from convicted criminals, juveniles from adults, or inmates with mental disorders from those without mental disorders, 4) no discipline of inmates for violent behavior and previous assaults on other inmates, 5) at times the Jail housed more prisoners than the cells could accommodate, 6) the Jail was understaffed, 7) inadequate supervision by jailers, and 8) unsupervised prisoner trustees had custodial duties for other prisoners.

13 . In the law, being released completely from confinement seems to be something different from a condition of confinement. The deliberate indifference standard has been used for conditions-of-confinement cases. Today, when the act that is supposed to be wrongful is a total release from custody, we have accepted — because no one argued otherwise— that the deliberate indifference standard would be the correct one to apply. We have looked at the complaint in that light and with an eye on Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). We, however, do not rule out that, if a total release from confinement can violate a prisoner’s federal rights at all, he might have to show the release was done "maliciously and sadistically for the very purpose of causing harm.” See generally Id. at 1978. What standard is applicable seems questionable. We leave the question undecided because it has not been raised, argued or briefed in this case. We also do not take into account the debatable nature of this most basic question when we write about whether the law was clearly established for the purposes of qualified immunity.

14 . The complaint does allege that the Sheriff was called by a deputy during the assault of Owens at the Jail and that the Sheriff did not come to the Jail. The Chief Deputy came. Nothing alleges that the Sheriff was aware of who was being assaulted, the severity of the assault, or that an inmate would have to go to the hospital. According to the complaint, Owens received medical care after the time of the call to the Sheriff. There is no allegation that the Sheriff was aware of Owens's condition after he received the medical care at the hospital or aware that Owens was going to be released from the Jail or that the Sheriff refused to listen or to confer with the Chief Deputy about whether or how Owens should be released.

15 .Before the complaint was dismissed, Plaintiffs were on notice that they might not have sufficiently alleged that the Sheriff was deliberately indifferent to Owens’s medical needs. The Sheriff’s motion to dismiss argued that Plaintiffs failed to allege a constitutional violation because they failed to allege "personal participation,” or "any type of policy she enacted which caused the injuries.”

The magistrate judge's recommendations concluded that Plaintiffs failed to allege an Eighth Amendment violation. Plaintiffs filed objections to the magistrate judge’s recommendation but did not seek to amend the complaint. Even after the district court dismissed their claims, Plaintiffs did not seek to amend the complaint. When Plaintiffs have had ample opportunity to request to amend their complaint, but have failed to do so, nothing compels us to remand to allow them to amend. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir.1999) (where we affirmed dismissal without remand to amend when plaintiff failed to request leave to amend the complaint in district court); Long v. Satz, 181 F.3d 1275, 1280 (11th Cir.1999) (same). See generally Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2206-07, 45 L.Ed.2d 343 (1975) (concluding, in context of motion to dismiss for lack of standing, that after opportunity to amend to include "particularized allegations of fact deemed supportive of plaintiffs standing,” complaint must be dismissed if standing not adequately apparent from complaint).

16 . In the light of the usual pleading requirements of Fed. Rule Civil Proc. 8(a), unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal. See Stanton v. United States, 434 F.2d 1273, 1276 (5th Cir.1970). See also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974). We count the "developed and implemented ... with deliberate indifference to the medical needs language in this unsupported-conclusion category. See generally Mass. School of Law v. American Bar, 142 F.3d 26, 40 (1st Cir.1998) (a review court need not "swallow plaintiff’s invective hook, line and sinker; bald assertions unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited”).

17 . In considering the Sheriffs potential personal liability as a policymaker, we have looked at decisions involving the liability of local governments as policymakers. The local government precedents are not directly on point. The reason is that the standard for imposing policymaker liability on a local government is more favorable to plaintiffs than is the standard for imposing policymaker liability on a Sheriff or other jail official in his personal capacity in a case like this one. Farmer, 114 S.Ct. at 1981. Still, the local government cases can guide us by analogy; if a local government would not be liable as a policymaker a fortiori there is no personal liability.

18 . Plaintiffs also point out a number of Eleventh Circuit cases that are part of the same line. Plaintiffs argue these cases clearly established that "intentional interference with prescribed” treatment amounts to a constitutional violation. See Young v. City of Augusta, 59 F.3d 1160, 1169 (11th Cir.1995); Howellv. Evans, 922 F.2d 712 (11th Cir.1991), vacated as settled, 931 F.2d 711, reinstated, by unpublished order (11th Cir. June 24, 1991); Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir.1988); Aldridge v. Montgomery, 753 F.2d 970, 972 (11th Cir.1985). But, in each of these cases the facts were materially different from the case now before us: the plaintiffs in these cases were not released and were alleging deprivation of medical care while they remained incarcerated.

19 . Plaintiffs cite a case decided in 1998 from the Sixth Circuit concluding that police officers were not entitled to qualified immunity when they released a vagrant whom they had arrested earlier in the evening for public drunkenness. See Davis v. Brady, 143 F.3d 1021, 1027 (6th Cir.1998). Besides the fact that Davis is not a decision binding in this circuit and was decided close to two years after Owens's release, Davis involved no claim of deliberate indifference to serious medical needs. Furthermore, in Davis, unlike in this case, the Defendants were not the local-government employer or the supervisors of the police: not policymakers sued as such. In Davis, the defendants were the specific police officers who actually released plaintiff (when he was drunk) at a dangerous place. See Id. at 1023.

20 . We take seriously the idea of "clearly established.” When, around the pertinent time, a district judge is writing that a kind of conduct does not violate the Constitution at all, we need to be particularly careful before concluding that the law was already truly clearly established to be the opposite of the judge’s opinion. See Denno, 218 F.3d at 1274; Barts, 865 F.2d at 1193. See also Wilson, 119 S.Ct. at 1701 (1999) (stating that when judges disagree on constitutional question it is unfair to subject officials to money damages for picking wrong side in debate).

By the way, we know that the Ninth Circuit, in 1999, did not agree totally with the district court's view. The appellate court decided that a specific corrections officer did, if the allegations were true, demonstrate deliberate indifference to the inmate’s serious medical needs in violation of the Constitution. Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir.1999). The allegations were that the corrections officer personally handled the pertinent inmate’s release and allegedly declined to provide the inmate, at the time of release, with a two-week supply of medications which a prison physician had prescribed and instructed be provided on the inmate’s release to the inmate (who, without the medication, would suffer a relapse of his mental disorder, causing violent outbursts). Id. at 1162. The material facts in Wakefield differ from the material facts in this case. And the Ninth Circuit in Wakefield addressed no defense of qualified immunity.

21 . We need not reach the question of whether the Sheriff might be entitled to qualified immunity on other, more specific, grounds. For example, preexisting cases had not yet defined, even generally, the point at which some risk of harm becomes — by virtue of the circumstances surrounding a policy to release sick or injured inmates — "a substantial risk of serious harm” for the purposes of the law. We need not focus so finely, considering the law was not clearly established at an even higher level of generality, that is, on whether a release from confinement could violate the Federal Constitution at all.

1 . This letter stated in part that the defendants’ "chronic understaffing poses an immediate and serious threat to the safety of the inmates”; that their inadequate monitoring procedures made inmates "highly vulnerable to assault by other inmates”; that their failure to classify and segregate inmates by their proclivity for violence, reasons for confinement, or mental condition resulted "in a substantial risk of- serious harm to inmates”; and that jailers’ "lack of formal training endangers the inmates’ safety and welfare.” Letter from Robert Toone to Sheriff Diane Harris and Commission Chairman Oliver Brooks (April 12, 1996).

2 . Joe Marsh was one of eight named plaintiffs in this lawsuit. Ball et al. v. Butler County et al., Civil Action No. 96-A-0808-N (M.D.Ala.). No administrative remedies were available at the jail at the time of the events alleged in the present action.