concurring in part and dissenting in part:
I must respectfully but strongly disagree with today’s resourceful and well-intentioned opinion, which abuses circuit precedent in a manner that I have not heretofore seen on this court. Judge Berrigan’s reasoning reflects a misunderstanding of the manner in which we, as a common law court, apply and interpret our prior cases.
Specifically, Judge Berrigan attempts to change circuit law by declaring that several recent panels have misinterpreted prior precedent. This eviscerates our well-established rule that one panel cannot overrule another, even if the panel majority believes that earlier interpretations were in error. Concluding that such an approach counsels judicial anarchy, I dissent from that portion of the opinion that deals with Grabowski’s cell assignment.
On the merits, Judge Berrigan’s holding is contrary to the overwhelming weight of authority from other circuits in failure-to-protect cases involving pretrial detainees. In addition to announcing an erroneous standard, her opinion has the unintended consequence of rewarding racist conduct in prison. If this opinion were binding circuit law— which it most decidedly is not because it contravenes existing caselaw — a white racist could ensure himself segregated housing in jail by doing what Grabowski indisputably did: referring to a black legal assistant as a “nigger bitch” and threatening (apparently in reference to another inmate) to “cut that nigger’s throat.”
*1399Moreover, Judge Berrigan’s bold pronouncement is made in a routine case, without oral argument, and in which the plaintiff appears pro se. At the very least, the court should review this matter en banc to ensure that if we are to announce so dramatic a shift in circuit law, we do so with forewarning and plenary deliberation and in a manner that adequately reconciles existing caselaw.
I.
A.
Before discussing the merits of the instant case, I will address the interpretive flaw in Judge Berrigan’s opinion, for that aspect of the opinion has odious consequences far beyond the case at hand. Heretofore, this circuit has carefully abided by the well-tested maxim that one panel of this court cannot overrule another, even if it disagrees with the prior panel’s holding. See, e.g., Texas Refrigeration Supply v. FDIC, 953 F.2d 975, 983 (5th Cir.1992). A “purpose of institutional orderliness” is served by “our insistence that, in the absence of intervening Supreme Court precedent, one panel cannot overturn another panel, regardless of how wrong the earlier panel decision may seem to be.” Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 (5th Cir.1987).
That rule is usually applied where a panel has addressed a res nova issue and announced a new rule of law. Once that has occurred, no subsequent panel may overrule the prior panel.
The ease sub judice presents a variation on that scenario. Several years ago, in the seminal case on this issue,1 a panel made certain holdings but left some questions unanswered because their answer was not necessary to the disposition of the case. Subsequently, other panels have interpreted that case; those interpretations are holdings and constitute binding circuit precedent. They in no way overrule or undermine the seminal panel but merely fill in the gaps not specifically covered by that panel’s analysis.
Now, Judge Berrigan has decided that three subsequent panels incorrectly interpreted the initial case.2 She does not consider herself bound by the later panels, so she stoutly establishes her own line of authority. One could conclude that this is presumptuous; even if not, it is wholly unauthorized and contrary to our rule of orderliness.
This method of reasoning should not be allowed to stand. It permits any panel majority to undermine settled circuit law by declaring that an entire line of eases has “misinterpreted” earlier authority and therefore need not be followed.3
A recent example will show how this court has handled similar interpretive questions heretofore. In Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir.1985), we imposed the heightened pleading standard in 42 U.S.C. § 1983 eases. Elliott involved individual defendants. In Palmer v. City of San Antonio, 810 F.2d 514, 516-17 (5th Cir.1987), however, a panel interpreted Elliott to apply to municipal defendants and, on the basis of Elliott, imposed the heightened pleading standard in suits against them, as well.
Palmer’s, extension of Elliott to municipal defendants was questioned, but there is no doubt that subsequent panels considered themselves bound by it. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954 F.2d 1054, 1057 (5th Cir.1992) (applying Palmer but complaining that “[t]he Palmer court did not explain why the heightened pleading requirement should be extended to defendant municipalities, con*1400sidering that municipalities cannot claim the immunity defense”), rev’d, — U.S.-, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Accord id. at 1060-61 (Goldberg, J., concurring).
Importantly, there was no suggestion that panels after Palmer could simply declare that Palmer had misinterpreted Elliott and thus did not constitute binding circuit precedent. Only when the Supreme Court decided Leatherman, rejecting the heightened pleading standard as to municipalities, was Palmer effectively overruled.4
B.
I will now show how these generalities apply to the instant case. As I have stated, the seminal case is Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir.1986), in which, as Judge Berrigan observes, this court declared that the Due Process Clause “accords state pretrial detainees rights not available to convicted inmates.” Id. at 1224. This was dictum, for Judge Berrigan correctly interprets Alberti to conclude that “the violence and sexual abuse were so widespread in the jail that the conditions violated even the greater Eighth Amendment standard against cruel and unusual punishment.” As the higher Eighth Amendment standard was satisfied, there was no specific holding as to whether a different standard should be applied to the failure to protect pretrial detainees.
Judge Berrigan, however, now declares that three subsequent unanimous panels have misinterpreted Alberti in this respect. In the failure-to-protect context for pretrial detainees, the first such case to interpret Alberti was Williams v. County of El Paso, 966 F.2d 676 (table), No. 91-8505 (5th Cir. June 3, 1992) (per curiam) (unpublished). There, the plaintiff, a pretrial detainee, alleged a Fourteenth Amendment violation from a stabbing incident in which he was permanently injured. A per curiam panel of Judges Jolly, Davis, and Smith applied the deliberate indifference standard, stating that that standard had been adopted by this circuit in Johnston v. Lucas, 786 F.2d 1254, 1259-60 (5th Cir.1986). We specifically held that the mention of “reasonable protection” of prisoners in Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir.1983), “was not meant to create a reasonableness standard in deciding whether the duty was violated.” Williams, op. at 13.
Judge Berrigan correctly observes that Johnston is distinguishable from the instant case because Johnston involved a convicted inmate, not a pretrial detainee. The significance of Williams is that there, we discussed at length the issue presented here: whether the plaintiff’s status as pretrial detainee or convicted prisoner is determinative. We acknowledged that in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), upon which Judge Berrigan partly relies, “[t]he Supreme Court [drew] a distinction between convicted prisoners and pretrial detainees.” Williams, op. at 13.
In Williams, we observed that “Stokes ... did not discuss whether there is any difference between the rights enjoyed by pretrial detainees and by convicted persons in the failure-to-protect context_” Williams, op. at 13-14. We distinguished the denial-of-medical-eare eases, in which “we have held that pretrial detainees are entitled to reasonable medical care unless the failure to supply it is reasonably related to a legitimate governmental objective.” Williams, op. at 14 (citing Jones v. Diamond, 636 F.2d 1364, 1378 (5th Cir. Jan.1981) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), overruled on other grounds, International Woodworkers of Am. v. Champion Int’l Corp., 790 F.2d 1174 (5th Cir.1986) (en banc), aff'd, 482 U.S. 437, 107 *1401S.Ct. 2494, 96 L.Ed.2d 385 (1987); Cupit v. Jones, 835 F.2d 82, 85 (5th Cir.1987)).
The Williams panel then addressed whether, in a failure-to-protect case, the same standard was to be applied to pretrial detainees as to prisoners. The Williams court answered this question definitively in the affirmative.
First, the Williams panel noted that Stokes had not discussed the matter. Williams, op. at 13. Then, the Williams court described the import of Alberti as follows: “Although [in Alberti ] we recognized that Bell [v. Wolfish] established greater rights for pretrial detainees than for convicted persons, we did not attempt to formulate a different standard for pretrial detainees for a failure-to-protect claim.” Williams, op. at 14. Citing with approval Redman v. County of San Diego, 942 F.2d 1435, 1442-43 (9th Cir.1991), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992), and Anderson v. Gutschenritter, 836 F.2d 346, 349 (7th Cir.1988), we held as follows: “Until this court determines ... that something less than deliberate indifference applies to pretrial detainees in the failure-to-protect context, deliberate indifference is the standard to be applied in this case.” Id. (emphasis added).
Importantly, the Williams panel did not attempt to undermine Alberti but merely interpreted it. At that point, Williams became circuit law, binding on all subsequent panels, including the instant panel for which Judge Berrigan writes.
If there was any doubt that Williams had announced the standard to be applied, that uncertainty was erased two months later by Sodie v. Canulette, 973 F.2d 923 (table), No. 91-3620 (5th Cir. Aug. 13, 1992) (per curiam) (unpublished). In Sodie, the plaintiff, also a pretrial detainee, claimed his constitutional rights were violated when prison officials failed to protect him from attack at the hands of another inmate. Significantly, the per curiam panel (Judges King, Davis, and Wiener) reasoned as follows:
Our standard for a failure-to-protect claim brought by a convicted inmate is deliberate indifference. Johnson [Johnston] v. Lucas, 786 F.2d 1254, 1259-60 (5th Cir.1986). This court has refused to find a distinction between convicted inmates and pretrial detainees in a failure-to-protect context. Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir.1986).... We therefore apply the deliberate indifference standard here.
Sodie, op. at 5-6 (emphasis added). We cited, with approval, Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), and Redman and Anderson, constituting caselaw from two other circuits applying the deliberate indifference standard to pretrial detainees in the failure-to-protect context.
It is significant that Sodie mentions Alber-ti and plainly relies upon and interprets it. A year later, Sodie and Williams were cited and followed in Banana v. McNeel, 5 F.3d 1495 (table), No. 92-7184 (5th Cir. Sept. 22, 1993) (unpublished). There, the plaintiff, a pretrial detainee, claimed Fourteenth Amendment violations based upon the alleged failure of jail officials to protect him from assaults from other inmates. The panel (Judges Garwood, Davis, and Smith) applied the deliberate indifference standard and stated that it is “required under Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991).” Banana, op. at 2 (footnote omitted). In Banana, importantly, we noted that in Sodie and Williams, we had held that in failure-to-protect eases, a court must apply a deliberate indifference test.
Judge Berrigan avoids the first post-AZ&er-ti case — Williams—by stating that the Williams “panel overlooked the message of Alberti.” But this is just another way of saying that Judge Berrigan disagrees with the Williams panel’s interpretation of Alber-ti.
Judge Berrigan certainly has the right to express her disagreement with the way in which the post-AZ&erii jurisprudence has developed — much as the Leatherman panel expressed discomfort with Palmer’s interpretation of Elliott. But in accordance with our rule of orderliness, Judge Berrigan cannot overrule Williams or its progeny, Sodie and Banana, merely by declaring that those pan*1402els of this court misunderstood and misapplied prior circuit law.5
Although Judge Berrigan discards Williams, Sodie, and Banana, she relies upon the contrary precedent of Parker v. Carpenter, 978 F.2d 190 (5th Cir. Nov. 20, 1992), decided three months after Sodie and about a year before Banana. In Parker, a pretrial detainee alleged that he was improperly moved to a dangerous cell and that once injured, he was denied proper medical care. In an opinion by Judge Thornberry (joined by Judges Higginbotham and Barksdale), the panel, without mentioning or considering the deliberate indifference standard, stated that the test for both claims was whether the state action was “reasonably related to a legitimate governmental objective.” Id. at 192.
The Parker panel was correct in its test for medical care, based upon Cupit v. Jones, 835 F.2d 82, 85 (5th Cir.1987), upon which it relied. In the failure-to-protect context, however, that panel was without authority to overrule (sub silentio) Williams and Sodie, of which the Parker panel presumably was unaware.6
The instant panel is bound by Williams and Sodie, not by Parker, because in the event of two conflicting precedents, the prior opinion controls. Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 n. 2 (5th Cir.1992). By this rule, Banana also correctly reflects the law of this circuit in the failure-to-protect context by its adherence to Williams and Sodie.7
Accordingly, Judge Berrigan misunderstands the manner in which this court interprets and applies its existing precedent. Her opinion is not the law of this circuit, as she has no authority to overrule this court’s well-established precedents, Williams, Sodie, and Banana.
II.
Judge Berrigan’s opinion is also notable in that it makes no mention of the law in other circuits. Significantly, the overwhelming weight of authority among the circuits is to the effect that the deliberate indifference standard applies to pretrial detainees. See Anderson v. County of Kern, 45 F.3d 1310, 1312-13 (9th Cir.1995) (citing Redman v. County of San Diego, 942 F.2d 1435, 1442-43 (9th Cir.1991) (en banc) (failure to protect pretrial detainee from rape), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992)) (placement of suicidal and mentally disturbed pretrial detainees in safety cells); Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1185-94 (11th Cir.1994) (complaint by juvenile detainee regarding medical care and protection from sexual assault); Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir.1994) (medical care); Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir.1994) (deliberate indifference standard applied to all conditions-of-confinement cases); Massey v. Rufo, 14 F.3d 44, 1994 WL 12326, *1, 3 n. 1 (table), 1994 U.S.App. LEXIS 6202, at *2 n. 1 (1st Cir. Jan. 14, 1994) (per curiam) (unpublished) (citing Bell v. Wolfish, 441 U.S. at 535 n. 16, 99 S.Ct. at 1873 n. 16, Elliott v. Cheshire County, 940 F.2d 7, 10 & n. 2 (1st Cir.1991) (medical care)); Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir.1993) (nonmedical conditions of confinement); Gray v. Farley, 13 F.3d 142, 146 (4th Cir.1993) (medical care); Anderson v. Gutschenritter, 836 F.2d 346, 348-49 (7th Cir.1988) (failure to protect pretrial detainee from assaults from other inmates); Molton v. City of Cleveland, 839 F.2d 240, 243 (6th *1403Cir.1988) (medical care), cert. denied, 489 U.S. 1068, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989).
No other circuit has come close to the sweeping statement Judge Berrigan makes today: that “in all conditions of confinement actions, medically related or otherwise, ... [t]he test is whether the official action was reasonably related to a legitimate government purpose....” To that extent, Judge Berrigan unnecessarily creates a circuit split by authoring an opinion at odds with the well-reasoned views of the above-cited courts of appeals.
III.
Finally, I must comment on the factual substance of the present case. Grabowski is, apparently, an avowed white racist. He claims the Constitution was violated when he was assigned to a cell with black inmates. In her opinion for the panel majority, Judge Berrigan expresses no cognizance of the extremely sensitive and volatile nature of this dispute.
Grabowski claims he was assigned to be housed with blacks because he was known to have engaged in racially derogatory outbursts and threats. We must be careful not to define the law in such a way that Grabow-ski and others can ensure themselves of racially segregated prison living simply by exhibiting racism openly and in such a way that they voluntarily expose themselves to physical danger at the hands of other inmates.
Judge Berrigan imposes the “reasonable governmental objective” standard regarding the decision to put Grabowski in integrated living conditions. But requiring such a showing is wholly unreasonable, as pretrial detainees are transferred as part of legitimate, day-to-day prison operations. In Bell, 441 U.S. at 539 n. 20, 99 S.Ct. at 1874 n. 20, the Court indicated that state officials do not have to justify facially legitimate prison measures absent a showing of punitive intent. This is precisely what Judge Berrigan’s opinion, does, however.
Moreover, it seems, intuitively, that racially integrated housing should be the presumption, and segregation the rare exception. Instead, Judge Berrigan’s opinion treats this sensitive issue as benignly as we normally would treat routine conditions of confinement such as the temperature of the cells or the taste of the food. In so doing, Judge Berri-gan fails to address the problems that can be created by enunciating a standard that could well result in an increase in segregated conditions in our prisons and jails.
IV.
In summary, the standard that Judge Ber-rigan attempts to announce today is substantively unwise and, more importantly, contravenes established Fifth Circuit law. Accordingly, that standard most decidedly is not the binding law of this circuit, though if it is not overruled en banc it certainly will be cited, by other plaintiffs in Grabowski’s circumstance, as the law of the circuit, thus leading to confusion in this court’s jurisprudence. Despite Judge Berrigan’s diligent and heartfelt efforts, I must conclude that her holding is unauthorized and imprudent, and accordingly, I respectfully dissent.
ORDER
March 14, 1995.
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.BY THE COURT:
A majority of the judges in active service, on the court’s own motion, having determined to have this case reheard en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The clerk will specify a briefing schedule for the filing of supplemental briefs.
. That case is Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir.1986), which I discuss at more length, infra.
. Specifically, in regard to the initial Fifth Circuit case, Judge Berrigan opines that one panel "overlooked [its] message”; a second panel’s interpretation of it "was an unfortunate error”; and a third panel “overlooked the prior precedent."
. By Judge Berrigan's reasoning, any panel would be free, at any time, to override an entire line of interpretive jurisprudence by declaring that those panels had misinterpreted an earlier case from this court or the Supreme Court. For example, all of this court’s cases interpreting bedrock decisions such as Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc), could be undermined by this device.
. The point of this discussion is that a panel cannot overrule, or declare void, a prior panel's interpretation of earlier circuit caselaw, even if it appears flawed. Where the prior panel was aware of, discussed, and attempted to apply that caselaw, its interpretation itself becomes binding caselaw that can be overruled only by action of the en banc court or the Supreme Court.
More commonly, our rule of orderliness comes into play when two panels become "ships passing in the night.” A subsequent panel may be unaware of an earlier holding and, consequently, may reach a contrary result. No interpretation is involved, as the later panel makes no mention of the earlier case. In such an instance, we can easily say that the later opinion is a nullity; any other rule would invite judicial chaos.
. The same reasoning applies to Judge Berri-gan’s attempt .to avoid Sodie by declaring that its interpretation of Alberti “was an unfortunate error.” Similarly, Judge Berrigan accuses the Banana panel of "overlook[ing] the prior precedent of Alberti.” While Banana does not cite Alberti, it relies squarely upon Sodie and Williams, both of which expressly interpret and apply Alberti.
. This is a good example of "ships passing in the night.” See supra note 4. The Parker panel made no effort to interpret or reconcile Williams or Sodie for the good reason that, evidently, it did not know of their existence. Nor does Parker even mention Alberti. Plainly, Parker cannot prevail in the wake of these prior cases, and Judge Berrigan's attempt to rely upon it is misguided.
. It goes without saying that the Banana panel was not bound by Parker, which, as I have explained, is not circuit precedent because it directly contravenes the earlier precedent established by Williams and Sodie.