[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-11994 February 24, 2005
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00036 CV-6
MOLLIE JO PURCELL,
as natural parent and administrator
of the Estate of Matthew Shawn Morgan,
Plaintiff-Appellee,
versus
TOOMBS COUNTY, GA,
Defendant,
ALVIE KIGHT, JR.,
individually and in his official
capacity as Sheriff of Toombs County,
JERRY WHITE,
individually and in his official capacity
as Detention Administrator of Toombs County,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
__________________________
(February 24, 2005)
Before EDMONDSON, Chief Judge, BIRCH and FARRIS*, Circuit Judges.
EDMONDSON, Chief Judge:
While detained at the Toombs County Jail, Matthew Morgan was beaten
and injured by three other inmates. Mollie Jo Purcell brought this action, pursuant
to 42 U.S.C. § 1983, on behalf of Morgan, her now deceased son. She alleged that
Toombs County, Sheriff Kight and Jail Administrator White violated Matthew
Morgan’s Eighth and Fourteenth Amendment rights in failing to prevent this
inmate-on-inmate attack.
The district court denied Defendants Kight and White qualified immunity in
their individual capacities and also denied Defendant Kight Eleventh Amendment
immunity from suit in his official capacity. We conclude that the district court
erred in denying Kight and White qualified immunity. In addition, given our en
banc decision in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003)(en banc), we
conclude that the Eleventh Amendment precludes suit against Sheriff Kight, in his
official capacity, for establishing the jail policies and other jail practices pertinent
to Purcell’s claims. Therefore, we reverse.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
2
Background
On 9 February 1999, Matthew Morgan was arrested and incarcerated in the
Toombs County Jail.1 Morgan had been arrested for two misdemeanors, but he
also had an outstanding felony-probation warrant pending.
Morgan asked for and was assigned to cell 5, where his friends
from the “street” were being held.2 On the night of 21 February 1999, three
inmates in cell 5 attacked Morgan while he was asleep. The daytime lights had
been turned off.3 The three inmates kicked and punched Morgan repeatedly,
leaving Morgan beaten on the prison floor.4
1
Morgan had been incarcerated sixteen times at Toombs County Jail by 9 February 1999 and, by
all accounts, was never before involved in a violent altercation with other inmates.
For this appeal, we resolve all the properly disputed facts in accord with Plaintiff’s view of
the facts.
2
In making cell assignments for inmates, correction officers consider the “type of crime that was
committed, race, age, . . . their health” and whether problems exist between individual inmates.
Correction officers normally will not assign inmates to cells where all other inmates are of another
race. But Morgan, a white male, was an exceptional case: he repeatedly had been incarcerated at the
Jail, knew many of its inmates, and asked to be placed in an all-black cell because those inmates
were his friends from the “street.”
3
The overhead lights were normally turned off at 11 p.m, leaving only night lights on in the cells.
4
Defendants contend Matthew Morgan took some money from one of the attackers, Johnny “Ike”
McClain. Witness accounts support this contention but largely from hearsay evidence. Regardless
of whether Matthew Morgan took the money, McClain seemingly thought he did and, in retaliation,
recruited two other inmates (Lashon Holloway and Romato Kent) to assist in attacking Morgan.
3
At the time of the incident, the Toombs County Jail held 118 inmates and
was staffed at normal levels, having five officers on duty.5 Jailers Brown and
Dickerson, both stationed in the control tower, became aware of the altercation
when they heard a “banging noise” in cell 5.6 Brown turned on the overhead
daytime lights; and after the lights warmed up, the officers saw Morgan lying on
the second-level floor.7 Brown then phoned the Jail’s front office, reaching jail
staffer Smith and Sergeant Hill who came back to the scene of the incident.
Shortly thereafter, another officer called an ambulance that arrived around ten or
eleven minutes later. Morgan was then taken to a hospital.8
Kight took office as Toombs County’s newly elected sheriff in November
1998. Before the incident involving Matthew Morgan, Sheriff Kight had directed
5
The Toombs County Jail had eight housing units (128-bed total capacity) containing individual
cells on two levels that formed a circle around the central control tower.
6
Both Jailers Brown and Dickerson testified to having difficulties seeing from the tower into the
cells at night during lights out. Sergeant Hill, the booking sergeant, testified that he had at one time
notified Jail Administrator White that it was difficult for jailers in the control tower to view what
was happening in the inmate sleeping areas after lights out. According to Hill, White had
maintenance crews come on several occasions to make the existing lights “work properly.”
The Jail, built in 1993, originally had a functioning intercom system with call boxes in the
cells. The intercom system, however, was no longer functional in most of the cells, including cell
5. Nothing evidences an attempt to repair this intercom system.
7
Daniel Morgan, the victim’s brother, who was incarcerated in an adjacent cell, said that seven
to ten minutes elapsed between when the beating began and when the lights came on and then
another five minutes before jailers attended to Matthew Morgan.
8
Morgan spent two months in a coma, sustaining permanent mental impairment. He later
committed suicide in 2000.
4
that a new commissary system be instituted at the Toombs County Jail. The new
computerized commissary system would keep up with inmate funds without the
inmates having to keep money on their persons. The new commissary system,
however, had not been put in place by the day of the Matthew Morgan incident.
At the time of the pertinent incident, the Toombs County Jail had a policy that
allowed inmates to have up to $30 for making purchases from vending machines.9
Record evidence shows that some inmates would gamble with money while
playing card games, and Deputy Michael Harlin testified that some fights resulted
over card games.10
Daniel Morgan (Matthew Morgan’s brother) gave deposition testimony that
several inmate-on-inmate fights occurred at the Jail during the months before
9
Jailers periodically conducted shakedowns to ensure inmates did not have more than the allowed
$30. The record, however, also shows that this inspection was not a fool-proof system; and some
inmates might at times accumulate amounts of cash in excess of $30.
10
In her unverified Amended Complaint, Plaintiff alleges that an inmate, Elroy Odom, was beaten
by fellow cellmates in an effort to steal Odom’s money. But, Odom was not deposed; and no
affidavit appears in the record on his behalf. The record evidence we see that might potentially
support this incident actually does not: Jail Administrator White testified that the only thing he
could recall about Odom was that “maybe somebody is supposed to have stole something from him.
. . . I don’t remember nobody attacking him.”
5
Matthew Morgan’s beating.11 Three fights were evidenced by his testimony.12
One of the fights involved an inmate named “Tank” who Matthew Morgan could
hear being beaten by a group of inmates in another cell. Daniel Morgan was able
to notice that it took jailers “about five minutes” to arrive and help “Tank.” Daniel
Morgan also recalled two black inmates, “Head” and James Polk, beating up three
Hispanic inmates and witnessed “two white guys square off [] over a meal[.]”
Mollie Jo Purcell, Matthew Morgan’s mother, filed this lawsuit alleging that
Sheriff Kight and Jail Administrator White, in their individual and official
capacities, violated Morgan’s Eighth and Fourteenth Amendment rights in failing
to prevent this inmate-on-inmate beating.13 On the conclusion of discovery,
11
Daniel Morgan appears to have been incarcerated at the Toombs County Jail beginning on 5
January 1999.
12
Daniel Morgan also testified to having heard through others of an incident where a black
inmate, Rogers, attacked a Hispanic inmate at night by pulling a sheet over the Hispanic inmate’s
head and smashing the Hispanic inmate’s face with a steel-toed boot. But we -- like the district court
-- will not consider this specific evidence in support of Purcell’s case on summary judgment:
objected-to hearsay. See Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir. 1999) (stating that
hearsay evidence may not be considered on summary judgment unless it can be “reduced to
admissible form”).
13
The Eighth Amendment applies to convicted inmates. A pretrial detainee’s “constitutional
rights arise not from the Eighth Amendment, but from the Due Process Clause of the Fourteenth
Amendment.” Hale v. Tallapoosa County, 50 F.3d 1579, 1582 n.4 (11th Cir. 1995). At the time of
the 9 February 1999 incident, Morgan was a pretrial detainee on many charges; Morgan was also
being held for having violated the terms of his probation from a prior felony conviction. Whether
or not we treat Morgan as a pretrial detainee or a convicted prisoner makes no difference. “[T]he
standard for providing basic human needs to those incarcerated or in detention is the same under
both the Eighth and Fourteenth Amendments.” Marsh v. Butler County, Ala., 268 F.3d 1014, 1024
n.5 (11th Cir. 2001)(en banc). In this case, we will refer only to the Eighth Amendment.
6
Defendants moved for summary judgment. Defendants argued that insufficient
evidence existed on the record to support a conclusion that Morgan’s
constitutional rights had been violated and also argued that Defendants, in their
individual capacities, were entitled to qualified immunity. In addition, both
Sheriff Kight and Jail Administrator White urged that the Eleventh Amendment
protected them from suit in their official capacities.14
Discussion
I. Claims Against Sheriff Kight and Jail Administrator White in their Individual
Capacities.
The district court denied summary judgment to Defendants Kight and
White, in their individual capacities, rejecting their defense of qualified immunity
to Purcell’s § 1983 claims.
We have jurisdiction over this appeal because the Supreme Court and this
Court long ago determined that a district court’s denial of a claim of qualified
immunity is an appealable interlocutory order. Mitchell v. Forsyth, 105 S.Ct.
2806, 2817 (1985); Jones v. Cannon, 174 F.3d 1271, 1280 (11th Cir. 1999). This
14
Toombs County is no party to this interlocutory appeal.
7
court reviews de novo the denial of qualified immunity on summary judgment,
construing the evidence in the light most favorable to Plaintiff. Jones, 174 F.3d at
1281.
“Qualified immunity protects government officials performing discretionary
functions from civil trials [] and from liability if their conduct violates no clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Lassiter v. Alabama A&M University, Board of Trustees, 28 F.3d
1146, 1149 (11th Cir. 1994)(en banc)(quoting Harlow v. Fitzgerald, 102 S.Ct.
2727, 2738 (1982)). This immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” McCoy v. Webster, 47 F.3d 404, 407 (11th
Cir. 1995) (quoting Malley v. Briggs, 106 S.Ct. 1092, 1096 (1986)). For the
purposes of this appeal, we will decide two things: (1) whether the summary
judgment evidence, viewed in the light most favorable to Purcell, shows a
violation of a constitutional right; and, if so (2) whether that right was, on 21
February 1999, already clearly established in such a particularized way to make
obvious the conclusion for all reasonable, similarly situated jail officials that what
Defendants were doing violated Plaintiff’s federal rights under the circumstances.
Marsh v. Butler County, Ala., 268 F.3d 1014, 1024 n.5 (11th Cir. 2001)(en banc).
8
Violation of a Constitutional Right
The Eighth Amendment, which the Supreme Court has extended to the
States, prohibits the infliction of “cruel and unusual punishments.” U.S. Const.
amend. VIII. “We begin with the proposition that, while the Constitution does not
require prisons to be comfortable, it also does not permit them to be inhumane,
‘and it is now settled that the . . . conditions under which [a prisoner] is confined
are subject to scrutiny under the Eighth Amendment.’” Jordan v. Doe, 38 F.3d
1559, 1564 (11th Cir. 1994) (citations omitted). “‘[P]rison officials have a duty
. . . to protect prisoners from violence at the hands of other prisoners.’ . . . It is not,
however, every injury suffered by one prisoner at the hands of another that
translates into [a] constitutional liability. . . .” Farmer v. Brennan, 114 S.Ct. 1970,
1976-77 (1994) (citations omitted).15
To show a violation of Morgan’s Eighth Amendment rights, Plaintiff must
“produce sufficient evidence of (1) a substantial risk of serious harm; (2) the
defendants’ deliberate indifference to that risk; and (3) causation.” Hale v.
Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). To be deliberately
15
When enforcing the duty to provide “reasonable safety” to inmates, such a standard requires
“due regard for prison officials’ ‘unenviable task of keeping dangerous men in safe custody under
humane conditions.’” Farmer, 114 S.Ct. at 1983 (citations omitted).
9
indifferent a prison official must know of and disregard “an excessive risk to
inmate health or safety; the 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.” Farmer, 114 S.Ct. at 1979. We will not allow the
advantage of hindsight to determine whether conditions of confinement amounted
to “cruel and unusual” punishment. See Brown v. Hughes, 894 F.2d 1533, 1537
(11th Cir. 1990). Whether a substantial risk of serious harm exists so that the
Eighth Amendment might be violated involves a legal rule that takes form through
its application to facts. For summary judgment purposes, we resolve all the truly
disputed facts in accord with Plaintiff’s view of the facts; but we, as judges, decide
the legal consequences of the given facts, that is, whether the supposed facts
amount to a violation of the Eighth Amendment.
Purcell draws our attention to the following conditions at the Toombs
County Jail: inmates were allowed to keep money in their cells; inmates were
allowed to play cards and gamble;16 the physical layout of the Jail hindered guards
16
Plaintiff asserted that gambling contributed to the alleged substantial risk of serious harm;
nothing in the record, however, indicates Matthew Morgan’s beating was related to gambling.
10
from preventing inmate-on-inmate attacks; and a history of inmate-on-inmate
fights.17
We accept that an excessive risk of inmate-on-inmate violence at a jail
creates a substantial risk of serious harm; “occasional, isolated attacks by one
prisoner on another may not constitute cruel and unusual punishment, [but]
confinement in a prison where violence and terror reign is actionable. A prisoner
has a right, secured by the eighth . . . amendment[], to be reasonably protected
from constant threat of violence and sexual assault by his fellow inmates[.]”
17
Purcell also argued that Matthew Morgan’s having been placed in an all-black cell constituted
a substantial risk of serious harm. But, as the district court correctly noted, that Matthew Morgan
requested to be placed in the all-black cell because he “hung out with them on the street and he knew
all of them really well” is undisputed. The Undisputed Statement of Facts sets out that race played
no role in Morgan’s being attacked, and no record evidence calls this fact into question. Thus we
readily conclude that Morgan’s placement in an all-black cell did not amount to an element of a
substantial risk of serious harm to his safety. By the way, Sergeant Hill testified that, because of
Morgan’s relationships with the inmates of cell 5, it was safer and would lead to “less conflict” for
him to be placed in the all-black cell.
Purcell also claimed that inmates were not properly segregated based on their proclivity for
violence, but the record does not support this contention: Matthew Morgan had a felony conviction
for bringing a deadly weapon onto school property. Undisputed facts show that Toombs County Jail
inmates were assigned to cells based on a variety of factors: “the type of crime committed, race, age,
. . . their health . . . whether there’s a problem with -- if we put somebody in a cell block and they’re
having problems [with] another individual, we try to avoid that.”
We recognize that one inmate (Holloway) involved in the incident underlying this lawsuit
had also been involved weeks earlier in another -- albeit not so severe -- episode of inmate-on-inmate
violence. According to Daniel Morgan’s testimony, that earlier incident arose from a pre-
incarceration clash between Holloway’s brother and “Tank,” the inmate attacked by Holloway. In
contrast, nothing in the record suggests that Holloway was generally violent toward other inmates
or that Holloway and Matthew Morgan had a “problem” with each other before Matthew was
attacked. The attack on Matthew Morgan was led by inmate McClain, the person who thought
Matthew had taken his money: the belief that spurred on the attack.
11
Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973) (citation omitted). We,
however, see insufficient evidence in the record to show that inmates in the
Toombs County Jail were exposed to something even approaching the “constant
threat of violence.” See id.; see also Zatler v. Wainwright, 802 F.2d 397, 400
(11th Cir. 1986). On substantial risk of serious harm, “[t]his objective standard
‘embodies “broad and idealistic concepts of dignity, civilized standards, humanity,
and decency . . . ,”’ but must be balanced against competing penological goals.”
LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993) (citations omitted). And
we stress that a “prison custodian is not the guarantor of a prisoner’s safety.”
Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990) (jail suicide
case).
Viewing the record evidence in the light most favorable to Purcell, we
conclude, as a matter of law, the conditions at Toombs County Jail failed to pose
the substantial risk of serious harm necessary for a violation of the federal
Constitution. A brief survey of conditions said by this Court, under Farmer, to
establish objectively an excessive risk of inmate-on-inmate violence supports this
conclusion.
12
In Marsh, we said that the complaint had alleged facts that, if true, were
sufficient to establish a substantial risk of inmate-on-inmate violence. The host of
jail conditions underlying that determination was extensive:
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.
268 F.3d at 1029. In a similar way in Hale, we determined that a plaintiff survived
summary judgment by submitting evidence that
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 . . . .
Marsh, 268 F.3d at 1033 n.12 (citing Hale, 50 F.3d at 1581-84).
13
In contrast, the evidence presented in this case paints a picture, while not
ideal, that is less severe than what would be sufficient to rise to the level of
demonstrating objectively a substantial risk of serious harm to inmates. Inmates at
Toombs County Jail were segregated based on a number of particularized factors,
including the kind of crime committed and an inmate’s potential personal conflicts
with others. Moreover, the Jail was not understaffed on the night of the attack:
five officers were on duty, which is typical for Toombs County.18 Jail officials had
a history of punishing inmate violence,19 rather than looking the other way to
preserve the status quo.20 And while inmate fighting does happen in Toombs
County, the record is insufficient to show that serious inmate-on-inmate violence
18
Plaintiff alleges that normal staffing levels at the Jail should have been increased to respond to
inmate altercations. There could always be more staff at a jail. Nothing in the record, however,
demonstrates that the actual staffing level -- five officers -- was insufficient to handle competently
situations that would be reasonably anticipated. No expert testified that the Jail, given its inmate
capacity, was understaffed. Although one of the male guards was in the front of the Jail at the time
this incident began (leaving one male and one female in the cell area), the Undisputed Statement of
Facts establishes that it took no longer than twenty seconds for the floor guard and the desk sergeant
to arrive at cell 5 upon receiving a call from the tower about the disturbance.
19
To include this incident, in which all three assailants were criminally charged and convicted.
20
In May 1998, two jailers, Edon Bacon and Jonas Tobler had taken two white male inmates,
brothers Donnie and Tim Kelley -- both inclined to the views of “white power” -- and placed these
Kelley brothers into separate all-black cells. Jailers Bacon and Tobler encouraged the inmates to
“take care of them.” The Kelley brothers were beaten by other inmates and were given medical
attention at the Jail. The next day, these same two jailers took another white inmate, William
Campbell, labeled as a “skinhead,” into a holding cell and beat him badly. White had the two jailers’
conduct investigated by the Georgia Bureau of Investigation. After the investigation, White
terminated the employment of both jailers Tobler and Bacon; and warrants were taken out for their
arrest.
14
was the norm or something close to it.21 Also, the fights that did occur were linked
to no recurring specific cause: causes ran the gamut from disagreements over
television channels, to retaliation for pre-incarceration street activity, to card
games, to food.
Purcell has produced evidence, mainly from Daniel Morgan’s testimony,
that a few serious fights occurred (severe enough to result in a trip to the hospital)
at the Jail before Matthew Morgan’s attack. No record evidence, however, shows
21
Not many serious fights seem to have happened at this Jail. Despite his conclusory comment
that fights are “a regular thing” in the Jail, Daniel Morgan’s deposition testimony produced
admissible evidence of only three fights. Of these three, one was serious enough to result in a trip
to the hospital, one resulted in a nosebleed (it is unclear whether a hospital visit was necessary), and
one was a skirmish at most. Beyond Daniel Morgan’s testimony, one of the deposed jailers who
worked the night shift for over two years could remember only two or three inmate fights. When
Deputy Harlin (another jailer) was asked if he could remember inmate fights involving a trip to the
hospital, Deputy Harlin, who had worked the night shift for over four years, vaguely responded that
there had been “several incidents over the years;” but he could recount no specific incidents or
numbers. Nothing in the record indicates that serious inmate-on-inmate violence at the Jail was
pervasive.
“In response to a summary judgment motion . . . plaintiff can no longer rest on . . . ‘mere
allegations,’ but must ‘set forth’ . . . ‘specific facts.’” Lujan v. Defenders of Wildlife, 112 S.Ct. 2130,
2137 (1992) (citations omitted). “Inferences from the nonmoving party’s ‘specific facts’ as to other
material facts, however, may be drawn only if they are reasonable in view of other undisputed
background or contextual facts and only if such inferences are permissible under the governing
substantive law.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (quoting
T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987)). In a jail
that houses over a hundred inmates, evidences of two to three pretty serious inmate fights over a
period of nine months and of not very many other fights over a four-year span, cannot establish that
serious inmate-on-inmate violence was frequent and pervasive.
By the way, we acknowledge that it, in certain circumstances, might be possible to base an
Eighth Amendment violation on inmate-on-inmate violence in the absence of a history of such
violence. See Marsh, 268 F.3d at 1033-34. But given the other circumstances here, this case is not
such a case.
15
that those incidents related to money. The district court seemed to place critical
importance on the Jail’s policy of allowing inmates to have money while
incarcerated. While such a policy may possibly not be the best practice, we are
unprepared to say that it is a violation of the federal Constitution to allow inmates
to have some cash inside a jail.
Nor does the Jail’s physical plant itself (jails can almost always be better
and more secure) present an objectively substantial risk of serious harm.22 The
record evidence, at worst, shows that the physical layout of the Jail presented the
jailers with difficulty in seeing into certain inmate cells, during the night, from the
control tower. Guards also testified that they could not hear as well from inside
the tower as they could when standing outside it. But in practice, the guards left
the tower and walked around the cellblock area to conduct periodic checks;
nothings suggests difficulty in seeing into the cells or hearing cell activity when
walking around.23
22
We do not decide that Kight and White are responsible for the Jail’s physical condition; but if
they were, our conclusion would not change.
23
The Jail’s policy manual in effect at the time of this incident required that guards make rounds
in the jail area “as often as possible but not less than once per hour.” Standard practice was to
conduct three “bed counts” at night, two of them after “lights out” (approximately 11:00). Although
Daniel Morgan remembers Jailer Dickerson making a round after “lights out” on the night of the
incident, Dickerson does not recall making that round. The Constitution does not require that every
inmate in a jail be observed by a guard every twenty minutes. See generally Popham, 908 F.2d at
1565.
16
The record does not support Purcell’s contentions that the conditions --
bearing everything in mind -- rose to the level of a “substantial”or “sufficiently
serious” risk as opposed to some lesser risk of harm. See Farmer, 114 S.Ct. at
1977. In the jail setting, a risk of harm to some degree always exists by the nature
of its being a jail. See Wilson v. Seiter, 111 S.Ct. 2321, 2324 (1991) (“The
Constitution, we said, does not mandate comfortable prisons, and only those
deprivations denying the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment violation.” (internal
citations and quotations omitted)). Thus we conclude that Purcell has failed to set
out evidence on summary judgment that supports the conclusion that the Toombs
County Jail conditions (one thing, taken with another) posed a substantial risk of
serious harm to Morgan or other inmates and, thus, could bear out an Eighth
Amendment violation.
We do not, by today’s conclusion, establish either Marsh or Hale as the
proverbial “floor” of liability for Eighth Amendment purposes. We only decide
that the conditions evidenced by the record here were not sufficiently grave to
violate the Constitution. We note also that Plaintiff has survived summary
judgment on her state law claims sounding in negligence against the individual
defendants and might succeed at trial on those claims. We do not decide today
17
that Plaintiff is due no remedy. But we, as a matter of law, do conclude that no
remedy against Kight and White, in their individual capacities, is supplied to her
by the Eighth Amendment’s prohibition against cruel and unusual punishment:
the Constitution does not “supplant traditional tort law in laying down rules of
conduct to regulate liability for injuries that attend living together in society.”
Daniels v. Williams, 106 S.Ct. 662, 665 (1986). “Reasonable care” under tort law
is not the same thing as reasonable safety within the meaning of the federal
Constitution.
Our conclusion that Purcell has failed to establish that Defendants violated
Matthew Morgan’s constitutional rights under the Eighth Amendment removes the
need to reach the remaining questions of deliberate indifference,24 causation, or
preexisting clearly established law.25
24
We see an error in the district court’s application of the subjective aspect of the Eighth
Amendment inquiry. In assessing the evidence presented by Purcell, the district court appears to
have focused entirely on whether or not the complained-of conditions posed a substantial risk of
serious harm and whether the conditions caused Morgan’s injuries. The district court seemingly
failed altogether to test the evidence for the crucial link between the alleged substantial risk of
serious harm posed by the conditions and Defendant Kight’s and Defendant White’s actual
awareness of that purported substantial risk. Because we conclude the circumstances presented fail
the Eighth Amendment standard at the “substantial risk” stage, it follows that Defendants did not
have subjective knowledge of circumstances amounting to a constitutional violation.
25
About immunity, we need not address the element of preexisting clearly established law. But
out of an abundance of caution, we state the obvious: because we see no federal constitutional
violation, it follows that no preexisting law put Defendants on notice that the jail conditions at
Toombs County clearly violated the Constitution. Even if a federal-law violation is presented by
these facts, Defendants are due qualified immunity from suit. The circumstances here were not so
18
II. Eleventh Amendment Immunity.
Sheriff Kight argues that, in his official capacity, he is entitled to Eleventh
Amendment immunity because in establishing and administering jail policies and
practices, he -- as sheriff -- functions as an arm of the State of Georgia. The
district court denied Eleventh Amendment immunity to Sheriff Kight based on this
Court’s panel opinion in Manders v. Lee, 285 F.3d 983 (11th Cir. 2002).26 We
have since vacated the Manders panel opinion and issued an en banc decision
determining, under the circumstances of that case, that a Georgia sheriff sued in
his official capacity functions as an “arm of the State.” Manders v. Lee, 338 F.3d
1304, 1305 (11th Cir. 2003)(en banc).
terrible to violate the Eighth Amendment clearly and on its face. In Hope v. Pelzer, 122 S.Ct. 2508,
2516-17 (2002), a previous Circuit decision (Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)) holding
unconstitutional the “handcuffing [of] inmates to the fence and to cells” was a sufficient foundation
for notice that handcuffing inmates to a hitching post also was unconstitutional: the Supreme Court
saw no reason to draw a distinction between Gates and Hope. Id. at 2517. Unlike Hope, the
preexisting case law here varied enough from the material facts of this case that a reasonable jailer
could believe that the factual differences could make the situation at this Jail lawful even when
circumstances in the earlier cases were determined to be unlawful under federal law: the precedents
do not “squarely govern” the case here. See generally Brosseau v. Haugen, 125 S.Ct. 596, 600
(2004). For further background on the use of judicial decisions as notice that preexisting law clearly
established that certain conduct violated federal law, see Pace v. Capobianco, 283 F.3d 1275, 1283
(11th Cir. 2002), and Marsh, 268 F.3d at 1031-33.
26
We review such a denial of Eleventh Amendment immunity on motion for summary judgment
de novo. Manders v. Lee, 338 F.3d 1304, 1307-08 (11th Cir. 2003)(en banc).
19
Although we declined to determine that a Georgia sheriff wears a “state
hat” for all functions, we decided that a sheriff’s “authority and duty to administer
the jail in his jurisdiction flows from the State, not [the] County.” Id. at 1315.
Thus Manders controls our determination here; Sheriff Kight functions as an arm
of the State -- not of Toombs County -- when promulgating policies and
procedures governing conditions of confinement at the Toombs County Jail.
Accordingly, even if Purcell had established a constitutional violation, Sheriff
Kight would be entitled to Eleventh Amendment immunity from suit in his official
capacity.27
REVERSED.
27
Jail Administrator White was also sued in his official capacity. The district court did not
address whether White would be entitled to Eleventh Amendment immunity and that issue was not
raised before us on appeal.
20