concurring in part and dissenting in part.
In my view the correctional officers are entitled to claim qualified immunity because Phillips has not “allege[d] facts [in the complaint] which, if true, would show that [each officer] being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.2001).
At the heart of this case lies the Eighth Amendment which proscribes “cruel and unusual punishment.” U.S. Const, amend. VIII. Ordinarily, any state jailer who imposes such punishment may be made to respond in damages.
The Supreme Court has held that when the victim of mistreatment by the jailers is a pretrial detainee, his entitlement to recovering damages is rooted in the Due Process Clause of the Fourteenth Amendment. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). The pretrial detainee succeeds in alleging an Eighth Amendment violation or something analogous to it merely by asserting “deliberate indifference to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Additionally, jailers may he held liable to pretrial detainees for “deliberate indifference” to the detainee’s “serious medical needs” if the complainant can prove that the accused jailer “[1] subjectively perceived facts from which to infer substantial risk to the prisoner, [2] that he did in fact draw the inference, and [3] that he then disregarded that risk.” Comstock, 273 F.3d at 703.
In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court explicitly imposed a requirement that a defendant must be shown to be subjectively culpable in order to conclude that he was deliberately indifferent *546to the needs of a prisoner: It is axiomatic that an “official[ ] who lacked knowledge of a risk cannot be said to have inflicted punishment.” Farmer, 511 U.S. at 844, 114 S.Ct. 1970. At the same time, the Court acknowledged that there may be instances where the circumstances are so obvious that any reasonable person in the position of the jailer must have known that the prisoner was at serious risk. This proposition must be understood, however, in the context of the whole of the Farmer opinion, which explicitly rejected an objective test alone for determining when an officer is deliberately indifferent to a serious medical need.
A state actor/jailer is, of course, immune from suit for injury and even death of a pretrial detainee unless each of the elements of a “deliberate indifference” claim is alleged with specificity in the § 1983 complaint.
The majority opinion uses the “obviousness” rationale to conclude that each officer “had to” have known of the serious risk to Phillips’s health and was therefore purposefully indifferent to her. But whether each officer knew or did not know of Phillips’s condition is not the point; the issue is whether the plaintiff has alleged specific facts asserting that each jailer did know of the seriousness of Phillips’s health problems because he perceived facts sufficient to infer it; that he drew the inference; and that he chose to disregard the risk. It is clear to me that Phillips has not made these allegations.
Phillips has not alleged facts that each defendant-correctional officer was deliberately indifferent to Phillips’s serious medical needs for two principal reasons: 1) the absence of allegations that each officer was aware of facts from which he must have concluded that Phillips was at serious risk; and 2) the absence of allegations of fact asserting that each officer chose to, and did, disregard the inference that he had drawn that Phillips was at serious risk. Phillips’s jailers and other personnel expended considerable effort in trying to get to the root cause of her illness. Certainly, it cannot be concluded that each officer must have known that she was at serious risk and that the treatment method employed was insufficient to address this need. And the scant and generalized allegations of Phillips’s complaint do not assert that the correctional officers actually perceived that she was at serious risk.
It is important to remember that at all times, the burden remains with Phillips to show that each of the correctional officers is not entitled to qualified immunity. Rather than alleging facts that demonstrate that each defendant was deliberately indifferent to Phillips’s serious medical needs, Phillips presents only broad and conclusory allegations that the correctional officers were present during periods in which Phillips’s health deteriorated and therefore must have known of the seriousness of her illness, and knowingly failed to take measures to help Phillips that in lawsuit hindsight they might have taken.
These allegations, although spread over a lengthy and detailed complaint, do not allege facts sufficient to defeat the correctional officers’ claims of qualified immunity.
Therefore I would REVERSE the denial of qualified immunity to all of the correctional officers and concur in the remainder of my brother’s opinion.