Alberti v. Sheriff of Harris County, Tex.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-2946
LAWRENCE R. ALBERTI, ET AL.,
Plaintiffs,
versus
THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.,
Defendants-Third Party
Plaintiffs-Appellees,
versus
ANN RICHARDS, THE GOVERNOR OF THE
STATE OF TEXAS, ET AL.,
Defendants-Third Party
Defendants-Appellants.
No. 91-2996
IN RE: GOVENOR ANN RICHARDS, ET AL.,
Petitioners.
No. 91-6062
LAWRENCE R. ALBERTI, ET AL.,
Plaintiffs-Appellees,
versus
THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.,
Defendants-Third Party
Plaintiffs, Appellees-
Cross Appellants,
versus
ANN RICHARDS, THE GOVERNOR
OF TEXAS, ET AL.,
Third Party Defendants,
Appellants-Cross Appellees.
No. 91-6206
LAWRENCE R. ALBERTI,
Plaintiff,
versus
THE SHERIFF OF HARRIS COUNTY, ET AL.,
Defendants-Third Party
Plaintiffs-Appellees,
versus
ANN RICHARDS, THE GOVERNOR
OF TEXAS, ET AL.,
Defendants-Third Party
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
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(November 20, 1992)
Before REAVLEY, HIGGINBOTHAM, and DUHÉ, Circuit Judges.
PER CURIAM:
I
In Alberti I, 937 F.2d 984 (5th Cir. 1991), we affirmed
virtually all of the rulings by the district court except we
remanded for findings required by the Supreme Court's intervening
decision in Wilson v. Seiter, 111 S.Ct. 2321 (1991). We remanded
to allow the district court to find whether the state and county
had acted with deliberate indifference. Alberti I, 937 F.2d at
1000. We left to the judgment of the district court whether
additional hearings or evidence was necessary. Id.
The district court did not hold hearings but found on the
basis of the record evidence that the state and the county acted
with deliberate indifference to the constitutional rights of felons
in the Harris County jail.
II
The state's arguments repeat many earlier made. The county
presents more difficult questions.
In Alberti I we observed that there was "strong if not
compelling evidence of deliberate indifference to the plight of
these ready-felons." 937 F.2d at 999.1 Nonetheless, the state
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The State points out that our prior statements regarding
the officials' deliberate indifference are not the law of the
case because they were dicta in the earlier decision.
Nonetheless, I think it is unlikely that the State can change the
mind of this exact same panel a little over a year later about
the probability that they were deliberately indifferent.
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argues that the finding of deliberate indifference is clearly
erroneous. The state suggests that it is not chargeable with
knowledge of the jail conditions. The record, however,
demonstrates that the state knew that by refusing to accept felons
it was causing severe overcrowding in Harris County jails.
The state's second argument denies liability because its
officers had a good faith, objectively reasonable belief that the
state owed county prisoners no duty. The state relies upon
principles of qualified immunity under Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982), and its requirement that the law be "clearly
established at the time an action occurred." As plaintiffs point
out, this doctrine is applicable only as a defense to the
individual liability of persons. Owen v. City of Independence, 445
U.S. 622 (1980). The state enjoys no protection from any qualified
immunity of a state official.
The closely related argument that given the asserted legal
uncertainty of state duty it could not be found to have acted with
deliberate indifference has more force. The state points to
uncertainty of state responsibility for the care of felons in the
county jail in light of rulings by the Ruiz court and legislation
proposed by the Texas legislature; both signaled that prisoners who
are ready for transfer to TDC remain the responsibility of the
county until their transfer to TDC. We are not persuaded. The
state elected to refuse felons to solve its own problems of
overcrowding. We are not persuaded that the state's duty was so
uncertain, as we explained in Alberti I.
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The state also asserts that we should apply the higher
standard of "malicious or sadistic intent." In Seiter, the Supreme
Court held that the level of intent required to constitute cruel
and unusual punishment depends upon the constraints facing the
official. As examples, the Court contrasted actions responding to
a prison disturbance, which must be taken quickly, under pressure,
and with concern for compelling safety concerns with the provision
of medical care to prisoners which "does not ordinarily clash with
other equally important governmental responsibilities." We read
Seiter to hold that the constraints imposed on the officer which
justify the "malicious and sadistic" standard must at least be of
an emergency or immediate nature.
The state argues that it could not relieve overcrowding
because the legislature would not appropriate more funds for prison
expansion and it was constrained by concern for public safety
inherent in early release of felons. Justice Scalia's opinion in
Seiter leaves open how difficulty in funding might negate the
intent requirement. In Alberti I, we noted that "before Seiter, it
was well established in this circuit that inadequate funding will
not excuse the perpetuation of unconstitutional conditions of
confinement." 937 F.2d at 999, citing Smith v. Sullivan, 611 F.2d
1039, 1044 (5th Cir. 1980). How the Supreme Court will develop the
"funding" defense to eighth amendment violations is not certain.
Regardless, the evidence that an absence of funding made the state
unable to accept the convicted felons is equivocal. Indeed, the
state has at earlier times pointed to the Ruiz decree's setting of
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population levels as the culprit. But as we explained in
Alberti I, that decree was no barrier to the state's constitutional
duty. The concern about the release of felons is the flip-side of
the inadequate funding argument: if the state would simply expand
its prison facilities, no excess release of prisoners would be
necessary. We find no error in the finding by the district court
that the state was deliberately indifferent and find no occasion
for further exploring the "funding" defense.
The district court's conclusion that the county was
deliberately indifferent to the unconstitutional conditions in its
jail is not so easy. The record is mixed. There is evidence of
"arguably formidable constraints" facing the county including the
dramatic increase in the number of state ready-felons being kept in
the county jail, largely beyond the county's control to prevent.
Nonetheless, the district court found that the jails would exceed
"constitutional capacity" with all ready-felons removed.
Whether county efforts to relieve overcrowding were sufficient
to avoid a finding of deliberate indifference is a close case. The
county can point to several things it did to reduce the jail
population. Some of these were successful; some were not through
the failure of other participants in the legal system to do their
part. For example, the county encouraged local judges to use
pretrial release for certain low-risk offenders, but the Special
Master found that the judges were reluctant to do so. On the other
hand, the county has continued to operate the jail over its
constitutional capacity for some time. As we indicated in Alberti
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I, "[w]hile the huge jump in the population of ready-felons might
weigh against a finding of deliberate indifference, other facts
could weigh in favor of such a finding." 937 F.2d at 1000. The
district judge was intimately familiar with the push and shove of
state government and its response to sorry prison conditions. This
trial judge was uniquely informed of the county "mental state" and
we decline to upset it. In short, the district court's finding of
deliberate indifference is not clearly erroneous.
The county defendants assert problems with the remedies
imposed against them by the district court. We declined to address
the remedial issues in Alberti I. The main argument seems to be
that the district court abused its discretion by imposing a cap on
the jail population. The county defendants argue that this is the
most intrusive remedy and therefore an abuse of discretion. Ruiz
v. Estelle, 679 F.2d 1115, 1144 (5th Cir. 1982). A numerical cap
on the number of prisoners is not an overly intrusive remedy. It
gives the county maximum flexibility in determining on its own how
to meet the population goals. The remaining contentions are
without merit.
AFFIRMED.
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