Cagle Ex Rel. Estate of Butler v. Sutherland

[PUBLISH]

IN THE U NITED STATES COU RT O F APPEALS

FOR TH E ELEVE NTH C IRCU IT FILED
U.S. COURT OF APPEALS
_____________________________
ELEVENTH CIRCUIT
JUNE 18, 2003
No. 02-13131 THOMAS K. KAHN
_____________________________ CLERK

D. C. D ocket N o. 00-026 79 CV -AR-J

CYNTHIA CAGLE,
as pers onal repres entative of the Es tate
of Danny R ay Butler, de cease d, bringing
claims on behalf of Danny Ray Butler’s
heirs and survivors,

Plaintiff-Appellee,
versus

DAVID SUTHERLAND,
in his individual capacity,
ALLEN COLE,
in his individual capacity,

Defendants-Appellants.

-----------------------------------------------------------------------------------

_____________________________

No. 02-13651
_____________________________

D. C. D ocket N o. 00-026 79 CV -AR-J
CYNTHIA CAGLE,
as pers onal repres entative of the Es tate
of Danny R ay Butler, de cease d, bringing
claims on behalf of Danny Ray Butler’s
heirs and survivors,

Plaintiff-Appellee,
versus

WINSTON COUNTY,
a county in the State of Alabama,
WINSTON COUNTY COMMISSION,
the governing bod y of Winston C ounty,

Defendants-Appellants.

_________________________________________

Appeals from the U nited States District Co urt
for the Northe rn District of Alaba ma
_________________________________________

(June 18, 2003)

Befo re EDM ON DSON , Chief Judge , and KR AVITC H and GIBSON *, Circuit
Judges.

________________
* Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.

2
PER CURIAM:

This cas e arises from a suicide a t a ja il.

Cynthia Cagle, on behalf of the estate of her brother Danny Ray Butler, filed

this section 1983 action against Winston County, the County Commission

(collectively “ Winston Co unty” or “ the C ounty”), and vario us county officials in

their individual capacities. Defendants moved for summary judgment. The district

court denied summary judgment to Winston C ounty, Sheriff David S utherland and

Jailer Allen Cole but granted it to the other defenda nts. Winston Co unty, Sheriff

Sutherland, and Jaile r Co le ap pea l.1 Becaus e none of de fendants ac ted with

deliberate indifference to Butler’s constitutional rights, we vacate the denial of

summary judgment a nd remand w ith instructions to grant summa ry judgment to the

defendants.

1
The district court amended its order denying Winston County’s motion for summary
judgment to certify the order for an interlocutory appeal. The district court said the question of
whether the constitutional rights of a pretrial detainee can be established by a preexisting consent
decree was a controlling question of law. We granted the petition for an interlocutory appeal.
Winston County v. Cagle, No 02-90027 (11th Cir. July 5, 2002) (order granting permission to
appeal)
Sheriff Sutherland and Jailer Cole may appeal without a section 1292(b) certification
because their motions raised the defense of qualified immunity. “The district court’s rejection of a
qualified immunity defense is a ‘final decision under the collateral order doctrine over which this
court has jurisdiction pursuant to 28 U.S.C. § 1291.’” Brent v. Ashley, 247 F.3d 1294, 1298
n.3(11th Cir. 2001) (quoting Harris v. Board of Educ., 105 F.3d 591, 594 (11th Cir.1997)).
Altho ugh both the County’s appeal and Sutherland and Cole’s appeal arose from the same
litigation and both appeals are from the same order, they came to us as different cases. Because
the cases are related and contain similar issues, we have consolidated them for the purposes of
this opinion.

3
 BACKGROUND

This case arises out of the suicide of Donnie Ray Butler while he was

detained in the Winston County Jail.

A. The Suicide

Butle r wa s arrested by State Troope r Max Holt for DU I sho rtly after s ix

o’clock in the evening on 23 September 1999. Butler had failed a field sobriety test

and blew a .162 on an Alcosensor test. Butler was taken to Winston County Jail by

Deputy Bryan Kirkpatrick while Trooper Holt waited for a tow truck.

During the ride to the jail, Butler told Deputy Kirkpatrick that Butler’s

girlfriend re cently hanged hers elf at the C arbon Hill City Jail. 2 When they arrived at

the Winston County Jail, Officer Mark Taylor prepared to administer an intoxilizer

test to Butler. Butler refused to take the te st. Butler told O fficer Taylor about

2
The Carbon Hill City Jail is not the same jail as the one in this case and is not controlled by
any defendant in this case.

4
Butler’s friend’s suicide and s aid that the C arbon Hill police de partment 3 had done

that to her.

After talking with Butler, Officer Taylor spoke to Jailer Cole. Officer Taylor

told Jailer Co le that he should w atch Butler and check o n him frequently.4 Trooper

Holt arrived at the jail and started working on the admissions paperwork. He asked

Butler a series of questions on Butler’s medical history and mental health. Butler

answered all the questions and did not indicate a history of mental health problems.

Butler did, how ever, tell Troo per Holt that if Butler had to stay in jail all night, he

would kill himself.

Because Butler was intoxicated, the officers placed Butler in Cell One which

was mo nitored by a vide o camera . Dep uty Kirkpatrick w ent to the ce ll and

removed items that he thought Butler c ould use to hurt himse lf, leaving only the

3
No defendant in this case is associated with the Carbon Hill police department.
4
Jailer Cole claims that he was unaware of Butler’s suicide threats and thought he was just
supposed to watch Butler because he was intoxicated. Officer Taylor said he told Jailer Cole
about the threat s. The district court presumed that Jailer Cole was aware that Butler was a
suicide risk for the sake of deciding the issue at summary judgment. The district court noted that
Jailer Cole was instructed to check on Butler frequently, that he was aware Butler had been
placed in Cell One where he could be observed via a video camera, that potentially dangerous
items had been removed from the cell, and t hat Butler’s belt and shoelaces had been t aken. We
agree with the district court’s conclusion that it was reasonable to infer Jailer Cole was aware of
the suicide risk. At the summary judgment stage, we make reasonable inferences in favor of the
nonmoving party. For the purpose of deciding Jailer Cole’s appeal, we will infer that Jailer Cole
was aware Butler was a suicide risk.

5
bunk bed s and a ma ttress pa d. M eanwhile, b ecause of Butler’s suicide threat,

Trooper Holt had Butler remove his belt and shoelaces and empty his pockets.

Butler was placed in the cell by himself to prevent him from harming someone else

or himself. Troop er Holt and D eputy Kirkpa trick aske d the inmates in the a djacent

cell to watch Butler: A peephole between the cells allowed the inmates to check on

each other.

After completing the p aperw ork, Tro oper Ho lt checked on Butler and left the

jail. At 9:00 p.m. , Jailer Co le performed a cell check a nd found nothing out of the

ordinary. At 9:30 p.m., Deputy Kirkpatrick left the jail. When Deputy Kirkpatrick

left the jail, Jailer Cole was the only county employee remaining at the jail. It was

the p olicy of the Winston Co unty S heriff’ s Office to have only one pe rson at the ja il

at night.5 At 10:46 p.m. Jailer Cole performed another cell check.6 Jailer Cole saw

Butler “sitting upright against the wall with some thing hanging from the top bunk

5
Sheriff Sutherland twice had asked the County Commission to provide funding for an
additional nighttime jailer. The first request was made in 1995 as a response to a jailbreak. This
request was denied. The second request was made in September 1998 because Sheriff Sutherland
was concerned about escapes. This request was still pending before the Commission when Butler
committed suicide. Funding was eventually granted.
6
Jailer Cole also testified that he performed a check at 10:30 p.m. and found Butler sitting on
the mattress smoking a cigarette. This check was not recorded in the jailer’s log book. At the
summary judgment stage, disputed facts must be viewed in the light most favorable to t he
nonmoving party. See Dolihite v. Maughon, 74 F.3d 1027, 1040 (11th Cir. 1996). Fo r the
purpose of this appeal, we will assume that Jailer Cole did not perform a check between 9:00 and
10:46 p.m.

6
around his neck.” Jailer Cole immediately went to call Deputy Slocumb and Officer

Taylor for assistance.7

Officer Taylor arrived at the jail at 10:49, and Deputy Slocumb arrived

shortly thereafter. Jailer Cole ga ve them the ce ll keys, and the y procee ded to

Butler’s cell. Jailer Co le remained in the o ffice and called an ambulance, She riff

Sutherland, Chief Deputy Wright, Deputy Kirkpatrick, Trooper Holt and the District

Attorney’s office. When Officer Taylor reached the cell, he observed that Butler

had hanged himself. Butler had used the elastic from his underwear to hang himself.

Taylor checked for a pulse, fo und none, cut Butler down, checked again, and still

found no pulse.

Deputy Slocumb observed that Butler was still warm but was cooler than

normal to the touc h. Neither O fficer Taylor nor De puty Slocumb a ttempted to

resuscitate Butler. The paramedics arrived shortly afterward, and they also did not

attempt to resuscitate Butler. Butler was pronounced dead.

7
Jailer Cole did not attempt to cut down Butler because the Winston County Sheriff’s policy
prevents anyone from entering a jail cell without backup. The policy exists to prevent inmates
from attempting to escape by faking suicide or another medical emergency.

7
B. The Praytor Order

In the early 1980's the Winston County Jail was involved in a jail-condition

lawsuit, Praytor v. T ownse nd. The co mplaint focused o n jail living conditions and

did not mention suicide . In Praytor, the parties reached a settlement; and the district

court entere d a c onsent d ecree a dop ting the terms o f the s ettle ment: Praytor v.

Towns end, CV-8 0-HM-2 50-S (N.D . Ala. June 8, 19 84)[hereinafter Praytor order].

The Praytor order req uired, among o ther things, a minimum of two full-time

personne l on duty betw een 5 p. m. and 8 a .m., ade quate tw o-way c ommunication,

and hourly pris oner che cks . Although both Sheriff Sutherland , who to ok o ffice in

1995, and the current County Commissioner did not know about the Praytor order, it

bound them as successors in interest. The Praytor court made no findings that the

conditions in the Winston County Jail were ever unconstitutional or that the order

was necessary to prevent constitutional violations.

C. This litigation

On 22 September 2000, Cagle brought this section 1983 action against

Winston County, Alabama, the Winston County Commission, Sheriff Sutherland,

8
Chief Deputy Wright, Deputy Kirkpatrick and Jailer Cole. Defendants moved for

summary judgment. The district co urt granted C hief Deputy W right’s and D eputy

Kirkpatrick’s motions. The district court said that neither violated the Praytor order

and that, the refore, they w ere entitled to q ualified immunity.8 The district court

denied summary judgment to the other defendants because it determined that they

violated the mandates of the Praytor order. The district court apparently believed

that the Praytor violation equated to a violation of Butler’s constitutional rights. The

district court also said the Praytor order clea rly established the law, de feating

Sheriff Sutherland’s and Jailer Cole’s claims of qualified immunity.

DISCUSSION

We re view the de nial of summary judgment de novo. LaChance v. Duffy’s

Draft House, Inc., 146 F.3 d 832, 834 (11 th Cir. 199 8). W e view the fac ts in the

light most favorable to the plaintiff. Dolihite v. Maughon ex rel. Videon, 74 F.3d

1027, 1040 (11th Cir. 1996). A defendant’s entitlement to qualified immunity is a

question of law to be reviewed de novo. Id.

8
Cagle does not appeal, and we decide nothing about, the grant of summary judgment to
Chief Deputy Wright and Deputy Kirkpatrick.

9
 Because Butler was a pretrial detainee, his section 1983 claims are based on

the due process clause of the Fourteenth Amendment. Belcher v. C ity of Foley,

Ala., 30 F.3d 13 90, 139 6 (11th C ir. 1994 ). “ [I]n a prisoner suic ide c ase , to prevail

under sec tion 1983 for violation o f substantive rights, und er . . . the . . . fourteenth

amendment, the plaintiff must show that the jail official displayed ‘delibera te

indifference’ to the prisoner’s taking of his own life.” Edward s v. Gilbert, 867 F.2d

1271, 1274-75 (11th Cir. 1989). The deliberate indifference standard “requires a

strong likelihood rather than a mere pos sibility that the self-inflictio n of ha rm will

occur.” Popham v. City of Talladega , 908 F.2d 1561, 1563 (11th Cir. 1990)

(emp hasis ad ded ). “ [T]he mere oppo rtunity for s uicide, w ithout more, is clea rly

insufficient to impose liability on those charged with the care of prisoners.” Tittle v.

Jefferson County Comm’n, 10 F.3d 15 35, 1540 (11th Cir. 1994 ).

A. Winston C ounty and the C ounty Commiss ion

To subject a county to liability under section 1983 the plaintiff must show that

the constitutional violation occurred as a result of a county policy. Id. “[A ] plaintiff

must show that the municipal action was taken with the requisite degree of

culpability and must demonstrate a direct causal link between the municipal action

10
and the deprivation of federal rights.” Bd. of the C ounty Comm’ rs of Bryan C ounty

v. Brown, 117 S .Ct. 13 82, 13 88 (199 7). “[P ]roof that a municipality’s legislative

bod y or a uthorized de cisio nmak er ha s inte ntionally deprived a pla intiff of a fede rally

protected right necessarily establishes that the municipality acted culpably.” Id. at

1389.

Cagle argued that the County acted with deliberate indifference when it failed

to provide funding for an additional nighttime jailer despite Praytor’s requireme nts

and Sheriff Sutherland’s requests. T he district court determined a reas onable jury

could conc lude that this inaction w as a co unty policy; that the po licy violated the

inmates’ constitutional rights; and that the violation proximately caused Butler’s

death. The district court apparently reached this conclusion based on a belief that

Praytor defined the constitutional rights of prisoners and detainees in the Winston

County Ja il. The court reje cted the C ounty’s argume nts that it lacked the funds to

pay for an additional jailer, noting “[s]hortage of funds is not a justification for

continuing to deny citizens their constitutional rights.”

Section 19 83 provide s in relevant part:

Every pers on who, under color o f any statute, o rdinance, re gulation,
custom or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other pers on within the jurisdiction there of to the dep rivation of any
rights, privileges, or immunities secured by the Constitution and laws,

11
 shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.

42 U. S.C. § 1983. When e valuating a local governme nt’s sec tion 1983 liability “a

court ‘looks only to whether the municipality has conformed to the requirements of

the Federal Constitution and statutes.’” Maine v. Thiboutot, 100 S.Ct. 2502, 2504

(1980) (q uoting Owen v. City of Independence, 100 S.Ct. 139 8, 1415 (1980)). A

consent decree, like the Praytor order, w hich arises out o f a voluntary settlement

and is not based upon a finding of -- and is not expressly intended to remedy a --

violation of the Constitution cannot create or expand constitutional rights. See

Gre en v. Mc Kas kle, 788 F.2d 1116, 1123 (5th Cir. 1988)(“such orders do not

create ‘ rights, privileges or immunities sec ured by the C onstitution and law s’”); see

also Klein v. Zavaras, 80 F.3d 432, 4 35 (10th C ir. 1996); Martel v. Fridovich, 14

F.3d 1, 3 (1st Cir. 1 993); DeG idio v. Pung, 920 F.2d 525, 534 (8th Cir. 1990).

Such orde rs often place requirements o n litigants that go beyond the minimum

requirements o f the Constitution. B ecause the orders cannot cre ate or exp and

constitutional rights, a section 1983 claim cannot be based solely on a violation of

the order. 9

9
Consent decrees are court orders and can readily be enforced by contempt citations and the
court’s inherent powers. Consent decrees are not automatically enforceable through civil actions
under section 1983. Because consent decrees are enforceable through contempt, little need exists

12
 Cagle concedes, in her brief, that consent decrees can neither create nor

expand constitutional rights. She says, however, that the consent decree can still be

relevant to a section 1983 action. She claims that the Praytor order put Winston

County on notice of the understaffing problem and, in this sense, that the violation

of the order establishes deliberate indifference to the risk of jail suicide. We

disagree.

While we accept that the Praytor order is releva nt to the delibera te

indifference inquiry, its violation, standing alone , does not estab lish deliberate

indifference. It is merely one element in the inquiry. To establish a defendant’s

deliberate indifference, the plaintiff has to show that the defendant had “(1)

subjective knowledge of a risk of serious harm; [and] (2) disregard[ed] . . . that

risk; (3) by conduct that is more than mere negligence.” McElligott v. Foley, 182

F.3d 124 8, 1255 (11th Cir. 19 99). In the ca se o f a county defend ant, the plaintiff

must point to a policy that demonstrates the County’s deliberate indifference. See

Tittle , 10 F.3d at 1540 (Counties ma y be liable for violations of co nstitutional rights

only when such violations occur as a result of an official county policy).

to allow suits under section 1983. C.f. Middlesex County Sewerage Authority v. National Sea
Clammers Assoc., 101 S.Ct. 2615, 2626 (1981)(“When the remedial devices provided in a
particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional
intent to preclude the remedy of suits under § 1983.”).

13
 Because this case is a jail suicide case, Cagle must show that the County’s

failure to fund a seco nd, nighttime jailer was deliberately indifferent to a “ ‘strong

likelihood, rather tha n a mere po ssibility,’ that suicide w ould result from [the

County’s] actions or inaction.” Tittle , 10 F.3d at 154 0 (citatio n omitted). C agle

argues that the Praytor order and Sheriff Sutherland’s request for an additional

nighttime jailer demonstrate the County’s awareness of a strong likelihood for

suicide. Neither thing does so.

The Praytor order de rived from a jail-condition clas s action. S uicide was no

factor in that litigation. The word “suicide” appears nowhere in the Praytor

complaint and nowhere in the Praytor order. Sheriff Sutherland’s requests for an

additional nighttime jailer were based on his conce rns about e scape . His reque sts

make no me ntion of a risk of suicide. These fac ts fall short of estab lishing that the

County was aware of a strong likelihood of suicide. In addition, no evidence shows

that, before Butler, any prisoner had ever committed suicide in Winston County Jail.

Nothing in the record required C ounty officials to conclude that co mmonly prisoners

in the Winston County Jail were substantially likely to attempt suicide. See Tittle ,

10 F.3d at 1540 (“The p laintiffs cite no authority that suppo rts the argument tha t the

occurrence of two suicides and twenty-seven attempted suicides in the jail requires

14
County officials to conclude that all prisoners of the Jefferson County Ja il are

substantially likely to attempt suicide.”).

The record contains no facts that show the County was truly aware that

prisoners in the Winston County Jail were likely to attempt suicide. The County’s

decision to fund no additional nighttime watcher was not deliberately indifferent to a

substantial likelihood of detainee suicide. Popham, 908 F.2 d at 156 5 (fact that no

night guard was on duty at the jail and that the Mayor decided to leave the position

unfilled did not establish deliberate indifference).

B. Sheriff Sutherland

Cagle proceed ed a gains t She riff Sutherla nd base d on his failure to tra in

properly Jailer C ole a nd the other e mployees of the ja il on suicide prevention; his

failure, in violation of the Praytor order, to have two employees at the jail at night;

and his failure, also in violation of the Praytor order, to have the c ells checked eve ry

hour. The district court said that Sheriff Sutherland retained qualified immunity for

his alleged failure to train Jailer Cole and the o ther alleged acts -- or omissions --

not prohibited by the Praytor order. T he district court c oncluded S heriff Sutherland

was not protected by qualified immunity fo r violations of Praytor.

15
 “Go vernment officials performing discre tionary functions are e ntitled to

qualified immunity ‘insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Hartley v. Pa rnell, 193 F.3 d 1263 , 1268 (11th Cir. 1 999) (quo ting Harlow v.

Fitzgerald, 102 S .Ct. 27 27, 27 38 (198 2)). Bec ause She riff Sutherland was a cting

within his discretionary authority, our inquiry focuses on two questions, “first . . .

whether there is ‘an underlying constitutional violation,’ [and] second, . . . whether

the law the p ublic official is alleged to have violated was ‘ clearly estab lished’ at the

time of incidents giving rise to the suit.” Taylor v. Ad ams, 221 F.3d 1254, 1257

(11th Cir. 2000)(citations omitted).

Relying solely on the Praytor violations, the district c ourt answ ered bo th

questions “yes.” As explained above, this approach was error. The Praytor order

did not define, create or enlarge Butler’s constitutional rights. Therefore,

section 1983 liability cannot be established merely because Praytor’s terms were not

followed. A constitutional violation can only be established if Sheriff Sutherland’s

polic ies w ere ado pted with de liberate indifferenc e to a substantia l risk of suicide in

the jail.

Because Sheriff Sutherland was not at the jail that night and was not involved

in the arrest and detention of Butler, his section 19 83 liability (like that of the

16
County) must be ba sed solely on his status as a policymaker. 10 As d iscusse d in

relation to the C ounty’s liability, no evidenc e existed tha t would indicate to

policymakers, such as Sheriff Sutherland, that a strong likelihood of prisoner

suicides existed in the Winston County Jail. The jail had no history of suicide,

Praytor did not address suicide, and Sheriff Sutherland’s own req uests for more

personnel were not directed a t suicide. Bec ause no evide nce shows that S heriff

Sutherland w as aw are of a stro ng risk of suicide at the jail, his policy of only having

one nighttime jailer cannot be deliberately indifferent to this risk. See Popham,

908 F.2d at 1565.

Becaus e Sheriff Sutherland did no t act with de liberate indifference to a strong

risk of suicide, he did not violate Butler’ s constitutional rights. B ecause no

underlying constitutional violation exists, Sheriff Sutherland is entitled to summary

judgment.

C. Jaile r Co le

10
Because Sheriff Sut herland is only liable based on his status as a policymaker, he cannot be
liable for Jailer Cole’s failure to check the cells every hour. The record clearly indicates that
Sheriff Sutherland had an unwritten policy of hourly cell checks. In her brief, Cagle concedes this
hourly check was the policy.

17
 Cagle pro ceede d against Ja iler Cole bas ed on his failure to ente r the cell and

cut down Butler upon finding him and on Cole’s failure, in violation of the Praytor

order, to check the cells on an hourly basis.11 The district court granted summary

judgment to Jailer Cole on his failure to cut Butler down because of qualified

immunity. Again relying on Praytor, the district court decided Jailer Cole was not

protecte d by qualified immunity for his failure to complete ho urly checks o f the

cells.12

The law on one point is clear: “A priso n custodian is not the guara ntor o f a

prisoner’s safety.” Popham, 908 F.2 d at 156 4 (citation omitted). “Abs ent

knowledge of a detainee’s suicidal tendencies . . . [the] failure to prevent suicide has

never been held to constitute deliberate indifference.” Id. Because we presume that

11
Whether Jailer Cole was instructed to check the jail every hour or every two hours is
disputed. Chief Deputy Wright claims he told Jailer Cole to check the jail every hour consistent
with Sheriff Sutherland’s policy; Jailer Cole claims he was instructed to check the jail every two
hours. For the sake of deciding Jailer Cole’s appeal, we will presume that Jailer Cole was
instructed to check the jail every hour.
12
Cagle argues that Jailer Cole should not be entitled to qualified immunity because he was
not performing a discretionary function. She claims he had no discretion on when to check the
jail. But, we have said that “a government official can prove he acted within the scope of his
discretionary authority by showing ‘objective circumstances which would compel the conclusion
that his actions were undertaken pursuant to the performance of his duties and within the scope of
his authority.’” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)(quoting Baker v. Norman,
651 F.2d 1107, 1121 (5th Cir. 1981)). Jailer Cole was performing his duties within the scope of
his authority, and the district court did no t err when it determined that he was acting within his
discretionary authority.

18
Jailer Cole was aware of Butler’s suicide threats, we must look to see whether Jailer

Cole’s acts w ere deliberately indifferent to this risk.

We c onclude that -- und er the facts o f this case -- Ja iler Cole’s a llowing one

hour and forty minute s to elap se b etw een jail checks w as not delibe rate ly

indifferent. Praytor required the ja ilor to check the cells every hour. But Praytor

did not establish a constitutional right to hourly jail checks, and Praytor was not

focused on preventing suicide.

Jaile r Co le was a ware that Butler’s b elt, his shoelace s and the contents of his

pockets had been confiscated. Jailer Cole was also aware that Butler’s cell had

been stripped of implements that might assist suicide. While these facts indicated

Butler was a suicide risk, they also decreased the risk. These acts show a lack of

deliberate indifference on the part of jail personnel and decreased the likelihood that

Butler would commit suicide. See Popham, 908 F.2d at 1564. Jailer Cole was not

required to foresee that B utler would ha ng hims elf with the elas tic fro m his

underwear. 13

Furthermore, Jailer Cole did not ignore Butler. He was instructed to watch

Butler, and he did. The re cord reflects that Jailer Co le observe d Butler through the

13
We do not know of -- and the parties do not cite -- any case where another inmate
anywhere had committed suicide in the unusual way that Butler did.

19
TV monitor a t least every 1 5 minutes. C losed circuit TV monitoring reflects

concern for a prisoner’s welfare and a lack of deliberate indifference. Id. The TV

camera reached almost all of the cell. 14 “The fac t that the came ra did not pick up

every co rner of the cell might be evidence o f negligence, b ut co uld ha rdly

demonstrate deliberate indifference.” Id.

14
In Jailer Cole’s deposition, Cagle’s lawyer questioned Jailer Cole on how much of the cell
was seen by the camera.

Q. Could the camera see all of t he cell?

A. It could see almost all of t he cell.

Q. What part of the cell could it not see?

A. It could not see just below the top bunk on the -- if you’re facing the cell, the left-
hand side of the cell.

Q. So if someone were in the bottom bunk on the left-hand side of the cell, you could
not o bserve that person?

A. You could see them, you just could not see maybe from their mid section up if they
had been sitting up. If they were laying down, you could observe pretty much
every bit of them.

Q. Okay.

A. But if they were sitting up with their back against the wall, you could see them and
see their movements as far as their hands and feet, but as far as from somewhere
midways up, you could not see their face, no.

Q. From about their waist or their hips up?

A. Yes.

20
 Assuming that Jailer Cole was aware that Butler had threatened suicide,

Cagle po ints to no evidenc e estab lishing that Jailer Cole ac ted with de liberate

indifference to this risk. Jailer Cole did not violate Butler’s constitutional rights.15

CONCLUSION

The Praytor consent decree did not control this case. No defendant was

deliberately indifferent to the risk that Butler wo uld commit suicide. T he

circumstance s, even view ed in Plaintiff’s favor, will not supp ort a finding and

conclusion of deliberate indifference on the part of Defendants. Butler’s

15
Even if Jailer Cole had violated the Constitution, he likely would be entitled to qualified
immunity, having violated no clearly established constitutional rights. We are not aware of any of
our cases or any case from the United States or Alabama Supreme Courts that would have put
Jailer Cole on notice that his acts, given the circumstances, were clearly unconstitutional. Praytor
does not do the job; a consent decree like Praytor cannot establish constitutional rights, and
obviously it cannot clearly establish constitutional rights. A precedent with materially similar
facts is not always required; but for a federal right to be clearly established, the applicable law
“‘must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Hope v. Pelzer, 122 S.Ct. 2508, 2515 (2002)(quoting Anderson v.
Creighton, 107 S.Ct. 3034, 3039 (1987)). Here, if Jailer Cole examined the precedent s he could
reasonably conclude that his conduct -- monitoring via TV cameras (and visiting the cell, at least
once, during each hour of the night) an inmate who had been stripped of his belt, shoelaces and so
on, and confined in a stripped cell -- was reasonable and was not nearly deliberately indifferent.
See Popham, 908 F.2d at 1564. Even if we were to determine that the Constitution required
more then Jailer Cole did, we could not say that requirement was already clearly established.

21
constitutional rights we re not violated. The district co urt’s orde r is VAC ATED and

the case is REM ANDED with instructions to enter judgment in favor of Defendants.

VACATED AND REMANDED.

22