## FILED U.S. COURT OF A

PPEALS ELEVENTH CIRC UIT JUNE 18, 2003 THOMAS K. KAHN

CLERK [PUBLISH] IN THE U NITED STATES COU RT O F APPEALS FOR TH E ELEVE NTH C IRCU IT

_____________________________

No. 02-13131

_____________________________ 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 clai ms on beh

alf of Dann y Ray But

ler’s heirs an d survi vors, Plai nti ff -Appel lee, versus DAVID SUTHERLAND , in his individual capacity, ALLEN COLE, in his individual capacity, Defendants- Appellan ts.

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

_____________________________

No. 02-13651

_____________________________ D. C. D ocket N o. 00-026 79 CV -AR-J2

CYNTHIA CAGLE, as pers onal repres entative of the Es tate of Danny R ay Butler, de cease d, bringing clai ms on beh

alf of Dann y Ray But

ler’s heirs an d survi vors, Plai nti ff -Appel lee, versus

WINST ON COUNTY, a count y in the St ate of Alabam a, WINST ON COUNTY COMMI SSI ON, the governing bod y of Winston C ounty, Defendants- Appellan ts.

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

_________________________________________

(June 18, 2003)

Befo re E DM ON DS ON , C hief J udge , an d KR AV ITC H an d G IBS ON *, C ircuit Judges.

________________ * Hono rable Jo hn R. Gibso n, Unite d St ates Circuit J udge fo r the Eighth C ircuit, sitting by designat ion.1 The di strict court am

ended i ts order deny

ing Win ston County

’s m otion f or summ ary jud gme nt to ce rtif y th e order for a n i nterl ocutory appe al. The d is tric t court sa id th e que sti on of whethe r the const itut ional right s of a pr etr ial detainee can be est ablished by a pre existing co nsent decree wa

s a control

li ng ques tion of law. W e granted th

e petiti on for an interl ocutory appe

al. Winst on C ou nty v. Cag le , No 02 -900 27 (1 1th C

ir.Jul y 5 , 200 2) (or der g ran tin g per mi ssi on to app eal) Sher

if f Su therl and and Jai ler Col e ma y a ppea l wi thout a s ecti on 129 2(b) certi fi cati on beca use t heir mo tio ns ra ised t he de fense o f qualified immunity. “The d istr ict c our t’s rejec tio n of a qua lified immu nity d efens e is a ‘final d ecis ion u nder the co llate ral o rde r do ct rine ove r wh ich t his court has jurisdi

ction pursuant to 28 U.S.C. § 1291.’” Brent v. Ashl ey , 247 F.3d 1294, 1298 n.3(11th Cir. 2001) (quoting Harris v. Board of Educ ., 105 F.3d 5 91, 594 (11th Cir.1997)). Altho ugh bot h th e Co unt y’s ap pea l and S ut her land a nd Co le’s a ppe al ar ose fro m the same litigation and b

oth appeals are from the same order, they came to us as different cases. Because the cases are re late d an d con tain si mi lar is sues, we h

ave cons oli dated them for th e purp oses of this opini on. 3 PER CURI AM: This cas e ar ises from a suic ide a t a ja il. Cynth ia Cagl e, on behalf

of th e estate of

her br other Danny Ray B utl er, f

il ed this sect ion 1983 acti

on again st Winston Coun

ty, th e County Commi

ssion (co llect ively “ Win sto n Co unty” or “ the C ount y”), and vario us c ount y offic ials in thei r in divi dual c apacit

ies. Def endants moved f

or sum mary j udgme

nt. Th e dist rict court denied summary judgment to Winston C ounty, Sheriff David S utherland and Jaile r Allen Co le but grant ed it t o the othe r de fenda nts. Win sto n Co unty, She riff Suth erla nd, and Jaile r Co le ap pea l. 1 Becaus e none of de fendants ac ted with deliber ate indi ffer ence to Butl

er’s consti

tutional ri

ghts, we vacat

e the denial of summary judgment a nd remand w ith instructions to grant summa ry judgment to the defendant

s.2 The Car bon Hill City Jail is not the sa me jail as the o ne in this case and is not cont rolled by

any defen dant i n thi s case. 4

BACKG ROUND

This case arises out of t he suici de of Donnie Ray Butler while h e was detained in the Winston County Jail.

A. The Suici

de

Butle r wa s ar res ted by S tate Tro ope r M ax H olt fo r DU I sho rtly a fter s ix o’clock in

the eveni

ng on 23 Septem

ber 1999. Butl

er had fai

led a fi eld sobriety test and blew a .162 on an

Alcosensor t

est. Butl er was taken to Winst

on County Jai

l by Deputy Bryan Kirkpatrick while Trooper Holt waited for a tow truck. Durin g the r ide to the ja il , Butl er tol d Deputy Ki

rkpatr ick th at But ler’s girlfrie nd re cen tly ha nged hers elf at the C arb on H ill City Jail. 2 When they arri ved at the Win ston Coun

ty Jai l, Of fi cer Mark Tayl

or prepar ed to admi

nist er an i ntoxi lizer test to Butler. Butler refused to take the te st. Butler told O fficer Taylor about3 No defe nda nt i n th is case is associ

ated wi th th e Ca rbon Hi ll pol ice dep artm ent. 4 Jailer Cole cl

aims that he was unaware of Butler’s suici de threats and thou ght he was just sup po sed to wat ch Bu tle r be cau se he was into xicat ed. Office r T aylor said he t old Jailer Cole about the threat s. The district court p resumed that Jailer Cole was aware that Butler was a suici de risk for the sake of de

cidin g the issue at sum

mary j udgment. The dis

trict court noted t hat Jail er Cole was in

structed to check on Butler frequently , that he was aware Butler had be en placed i n Cell One where he coul

d be observed vi

a a video cam

era, that potentially

dangerous items had be en remove d from t he cell, and t hat Bu tler’s belt and s hoelace s had been t aken. We agree with the di stri ct court’ s con

clu si on tha t it wa s rea sona bl e to in fer Jai ler Col e was aware of the su icide risk. At the summary judgment stag e, we mak e reas onable inferenc es in favor o f the non moving par ty. For the pur po se o f dec iding J ailer Cole ’s ap pea l, we will infer tha t Ja iler C ole was awa re Butle r was a su

ici de ris k. 5 Butler’s friend’s suicide and s aid that the C arbon Hill police de partment 3 had done that to her. After t alkin g with Bu

tler,Officer Taylor

spoke to Jailer Cole. Off icer Tayl or told Jailer Co le that he should w atch Butler and check o n him frequently. 4 Trooper Holt a rri ved at t he jai l and starte d workin

g on th e admi ssion s paperwork. H e asked Butler a seri

es of qu estions on Bu

tler ’s medi cal hi

story and men tal h ealth . Butl

er answered all the questions and did not indicate a hi story of mental heal th problems. Butler did, how ever, tell Troo per Holt that if Butler had to stay in jail all night, he would kill hi

mself. Because Bu

tler was int oxica ted, th e off icers placed Bu

tler in Cel l One whi

ch

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 the5 Sherif f Sutherlan

d twice had asked the County Commi ssion to provide fun

ding f or an add itio nal nig htt ime jailer . T he fir st r equ est was made in 199 5 as a re spo nse t o a jailbre ak. This reque st wa s denied. The sec ond r equest was made in S epte mber 199 8 becau se Sher iff Suther land was concerned about escapes. Thi s request was still

pending b

efore the Commi

ssion when

Butler comm itted sui cide . Fundi

ng was even tuall y gran ted. 6 Jai ler Col e al so testi fi ed tha t he pe rform ed a c hec k at 10: 30 p.m

. and foun d Butl er si ttin g on the mat tre ss smoking a cigaret te. This check was no t re cord ed in the jailer’ s log bo ok. At the summary judgment stag e, dispu ted fac ts must be viewed in t he light most favora ble to t he nonm ovin g party. See Doli

hi te v. M augh on , 74 F. 3d 102 7, 10 40 (1 1th Cir . 199 6). Fo r the purp ose o f this appe al, we will assu me that Jailer Co le did not perfo rm a check betwe en 9:00 and 10: 46 p .m. 6 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 t

he cell by him self t o prevent h

im f rom harm

ing som eone else or himself. Troop er Holt and D eputy Kirkpa trick aske d the inmates in the a djacent cell t o watch Butler: A peephol e between the cel

ls all owed the inm

ates 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 ordin ary. At 9:30 p.m ., Deputy

Kirkp atrick lef

t the j ail . When Deputy Kirkp atrick lef t the j ail , Jail

er Cole was t

he onl y coun ty emp loyee

remai nin g at th e jail . It was the p olicy of the Win sto n Co unty S heriff’ s O ffice t o ha ve o nly on e pe rso n at t he ja il at night. 5 At 10:46 p.m . Jail er Cole perf ormed anoth

er cell check. 6 Jailer Cole saw Butler “sitting upright against the wall with some thing hanging from the top bunk7 Jail

er Cole did n

ot attempt t o cut down Butler because the Wi nston County Sherif

f’s poli cy prevents any

one from enteri

ng a jai l cel l without backup. The pol icy e xists to prevent in

mates fro m at te mpt ing t o e sca pe b y faki ng s uicid e o r an ot her medic al eme rg enc y. 7 around his n

eck.” Jai ler Col

e imm ediat ely wen t to cal l Deput y Sloc umb and Offi

cer Taylor for

assist ance. 7 Offi cer Tayl or arr ived a t the j ail at 10: 49, and Deput

y Sloc umb ar riv ed shortly thereafter. Jailer Cole ga ve them the ce ll keys, and the y procee ded to Butle r’s cell. Jaile r Co le rem ained in the o ffice a nd c alled an a mbula nce , She riff Suthe rlan d, Chief Deputy Wri

ght, Deputy Ki

rkpatr ick, Tr ooper Hol

t and t he Dist rict Attor ney’s of fi ce. When Off

icer T aylor

reached t

he cel l, he observed that B utl er had hanged himself. But ler had used the elastic from h is underwear to hang himself

. Tay lor c hec ked for a puls e, fo und n one , cu t But ler d ow n, c hec ked aga in, a nd s till foun d no pul se. Deputy Sl

ocumb obse

rved t hat Bu tler was stil l warm but was cool

er tha n normal to the touc h. Neither O fficer Taylor nor De puty Slocumb a ttempted to resuscit ate Butler. The param

edics arri ved shortl

y after ward, and they

also did n

ot attempt t o resuscit

ate Butler. Butl

er was pronounced dead.8

B. The Praytor

Order

In the ear

ly 1980' s the Winston

County Jai

l was inv olved i n a jail -condit ion lawsuit, Praytor v. T ownse nd . The co mplaint focused o n jail living conditions and did not mention suicide . In Praytor, the par ties r eached a set

tlem ent; a nd the distr ict

cou rt en tere d a c ons ent d ecr ee a dop ting th e te rms 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 hour ly pris one r che cks . Alt houg h bo th Sh eriff S uthe rland , w ho to ok o ffice in 1995, and t

he cur rent Cou nty Com missi oner di d not kn ow about th

e Praytor ord er, it bound t hem as su

ccessors i

n in terest . The Praytor

court made no findings that the condi tions in t he Winst on Count y Jail were ever u

nconst itu tion al or t hat th e order was necessary to prev

ent consti

tutional vi

olations.

C. This l

iti gation

On 22 September 2000, Cagl e brought

this sect ion 1983 acti

on again st Winston Count

y, Alabam

a, the Winst

on County Comm

ission, Sheri ff Su

therland,8 Cag

le does not ap peal , an d we d eci de n othi ng a bout, the g ran t of s um ma ry j udgm ent to Chi ef Dep uty Wr igh t and Depu

ty Ki rkpatric k. 9 Chief Deput

y Wright , Deputy Ki

rkpatrick and Jailer Cole. Defen dants moved f

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

ons. The distr ict co urt sa id th at nei ther v iol ated the Praytor

order and that, the refore, they w ere entitled to q ualified immunity. 8 The district court denie d summary ju

dgmen t to th e other defendants beca

use it determ ined t hat th ey viol ated the mandat

es of t he Praytor

order. T

he dis tri ct cour

t apparen tly beli eved that t he Praytor

violation equated to a violation of Butler’s constitutional rights. The distr ict co urt al so said t he Praytor

order clea rly established the law, de feating Sheriff Sutherland’s and Jailer Cole’s claims of qual ified immunit

y.

DISCU SSI ON

We re view the de nial of summary judgment de novo . LaChance v . Duff y’s Draft House, I nc. , 146 F.3 d 832, 834 (11 th Cir. 199 8). W e view the fac ts in the light most favorable to the plain tiff

. Dolihi te v. Maughon

ex rel. Videon , 74 F.3d 1027, 1040 (11th Ci

r. 1996). A def

endant’s ent

itlement to qu

alif ied im muni ty is a question of law to be r

eviewed de novo . Id.10

Because Butler was a pretrial detai nee, hi s section 1983 cl aims are based on the due process clause of the Fourteenth Amendment. Belcher v. C ity of Foley, Ala. , 30 F.3 d 13 90, 139 6 (1 1th C ir. 1 994 ). “ [I]n a pris one r suic ide c ase , to pre vail 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 indi ff erence’ t o the pr isone r’s taki ng of his own li fe.” Edward s v. Gilbert , 867 F.2d 1271, 1274-75 (11th Cir. 1989). The deli berate in diff erence standar

d “requires a strong likel

ihood rath er th an a mere pos sibilit y tha t the self- inflictio n of ha rm w ill occur.” Popham v. City of Talladega , 908 F.2d 1561, 1563 (11t h Cir. 1990) (emp has is ad ded ). “ [T]h e me re o ppo rtunit y for s uicid e, w ithou t mor e, is clea rly insu ff ici ent to impos e li abil

ity on tho se charg ed with

the car e of pr isone rs.” Tittle v. Jeff erson Coun

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

A. Winston C ounty and the C ounty Commiss ion

To subject

a count y to l iabili ty un der secti on 1983 th

e plai nti ff must show that the constitutional violati on occurred as a result of a county policy. Id. “[A ] plain tiff must show th

at the mu nici pal action was taken with the requi

site degr ee of culpabi lit y and must

demonstrat

e a direct cau

sal li nk between the m

unici pal action11

and the depri

vation of f

ederal rig hts.” Bd. of the C ounty Comm’ rs of Bryan C ounty v. B rown, 117 S .Ct. 13 82, 13 88 (199 7). “[P ]roof that a municipality’s legislative bod y or a utho rize d de cisio nmak er ha s inte ntion ally d epr ived a pla intiff of a fede rally protect ed rig ht nec essari ly est

abli shes that the

muni cipal ity acted cul

pably .” Id. at 1389. Cagle ar

gued t hat th e County acted wit

h deli berate i ndif feren ce when i

t fai led to prov ide f undi ng f or an addi

tion al ni ghtt ime j ail er despi

te 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 inm ates’ cons tit

uti onal r igh ts; an d that the vi olati on prox imat ely ca used But ler’s death. T he distri ct cour

t apparen tly reached t

his conclu

sion b ased on a bel

ief that Praytor defin ed the consti

tutional ri

ghts of prisoner s and detain

ees in th e Winston County Ja il. The court reje cted the C ounty’s argume nts that it lacked the funds to pay for an

additional jai

ler, n oting “[s]hortage of fu

nds is not

a justificat

ion f or conti nui ng to d eny ci tizen s thei r const itu tion al ri ghts. ” Section 19 83 provide s in relevant part: Every pers on who, under color o f any statute, o rdinance, re gulation, custom or usag e, of an

y Stat e or Terr itor y or th e Distr ict of Colum bia, subjects, or

causes to be subject

ed, any ci

tizen of the Unit ed States or other pers on within the jurisdiction there of to the dep rivation of any righ ts, pri vileges, or i

mmuni ties secur

ed by the Consti

tution and laws,9 Consent decre es are cour t or ders a nd can re adily be enforce d by cont empt cit ations and the

cour t’s inher ent po wers. Consent decre es are not a uto matically enforc eable thr ough c ivil actions und er se cti on 19 83. B eca

use cons ent d ecre es a re en forc eab le throu gh c ontem pt, l ittl e ne ed ex is ts 12 shall be liabl e to the part

y inj ured in

an action

at law, sui

t in equ ity,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 t

o whether th

e municipali

ty has conf

ormed to th

e requir ements of the Fe deral

Consti tuti on and st atute s.’” Maine v. Thi

boutot , 100 S.Ct. 2502, 2504 (1980) (q uoting Owen v. Cit y of I ndependen

ce , 100 S.Ct. 139 8, 1415 (1980)). A consent decree, l ike th e 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 ri ghts. See Gre en v. Mc Kas kle , 788 F.2d 1116, 1123 (5t h Cir. 1988) (“such orders do n ot create ‘ rights, privileges or immunities sec ured by the C onstitution and law s’”); see also Klei

n v. Zav aras , 80 F.3d 432, 4 35 (10th C ir. 1996); Martel v . Fri dovich , 14 F.3d 1, 3 (1st Cir. 1 993); DeG idio v. Pung , 920 F.2d 525, 534 (8t h 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 constit ution al ri ghts, a sect

ion 1983 claim cann

ot be based solel

y on a violation of the order. 9to all

ow suits under s ection 1983. C.f. Middl

esex County Sewerage A

uthority v. National

Sea Clam mers Ass oc. , 101 S.Ct . 261 5, 26 26 (1 981) (“When the remedial device s pro vided in a particular Act are suf

fici ently c omprehensi

ve, they m

ay suf fice to demons

trate congressional inten t to preclude

the rem edy of suits under § 1 983.”).

13 Cagle concedes, i

n her bri ef, th at consent decr

ees can neit

her create n

or expand consti

tutional ri

ghts. Sh e says, however, t

hat the con

sent decree can st

ill be relev ant to a secti on 1983 act

ion. She cl aims t

hat th e Praytor order put Win

ston County on n

otice of the under

staff ing pr oblem and,in th

is sense, t

hat the v iolat ion of the order establishes deliberate in difference to the risk of jail suicide. We disag ree. 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 indi ff erence. I t is m erely one el ement

in t he in quir y. To est

abli sh a def

endant ’s deliber ate indi ffer ence, the pl

ainti ff h as to show that t

he defendan

t had “(1) subject ive kn owledge of

a risk of ser ious h arm; [ and] ( 2) disregard [ed] . . . that risk;(3) by

conduct that i s more t han me re neg li gence.” McElli

gott v . Fol ey , 182 F.3d 124 8, 1 255 (11 th C ir. 19 99) . In th e ca se o f a co unty d efend ant, the p laintiff must point to a policy t

hat demonstrates the County’s deliberate indif ference. See Tittle , 10 F.3d at 1540 (Counties ma y be liable for violations of co nstitutional rights only when such violati

ons occur as a result of an official county poli cy).14

Because th

is case i s a jai l sui

cide case,Cagle m

ust show that t

he Count y’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] acti

ons or i naction.” Tittle , 10 F.3 d at 154 0 (c itatio n omit ted ). C agle argue s that

the Praytor

order an d Sheriff Suthe rlan d’s reques t for

an addi tion al nigh ttim e jailer demonstr

ate the Count

y’s awareness of a st

rong l ikeli hood for suicide. Neither

thin g does so. The Praytor

order de rived from a jail-condition clas s action. S uicide was no factor in that l iti gation. The wor

d “suici de” appears n

owhere i n the Praytor compl aint

and nowher

e in t he Praytor

order. S heri ff

Suthe rlan d’s reques ts 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 st rong l ikeli hood of sui

cide. In addition, no evi

dence shows that, before Butler, any pri soner had ever committed suicide in Winston County Jail

. Nothing in the record required C ounty official s to conclude that co mmonly prisoners in the Winston County Jail were substantial ly li kely to attempt suicide. See Tittle , 10 F.3d at 1540 (“The p laintiffs cite no authority that suppo rts the argument tha t the

occurr ence of two sui cides an

d twenty-seven

attem pted sui cides i n the j ail requi res15

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

likely t o attempt suicide.”). The recor

d contai ns no f acts that show th

e County was trul y aware th

at prisoners i

n the Wi nston County Jail were li kely t o attem pt suicide. Th

e County ’s decision to fun d no additi

onal ni ghtti me watcher was not del iberatel y indi ffer ent to a substantial li

kelihood of detainee suicide. Popham , 908 F.2 d at 156 5 (fact that no nigh t guard was on du

ty at th e jail and that t

he Mayor decided to l

eave the posi

tion unfil led did not establish deli berate indiff

erence).

B. Sheri ff Su

therland

Ca gle p roc eed ed a gains t She riff Sut herla nd b ase d on his fa ilure t o tra in pro per ly Ja iler C ole a nd th e ot her e mplo yee s of t he ja il on s uicid e pr eve ntion ; his fai lur e, in viol ation of th e Praytor order, to have two employees at the jail at night; and hi s failur

e, also i n vi olati on of t he Praytor

order, to have the c ells checked eve ry hour. Th e distri ct court sai

d that Sher

iff Sutherl and retai ned quali fied i mmuni ty for his alleged failure to train Jail er Cole and the o ther alleged acts -- or omissions -- not pr ohibi ted by t he Praytor

order. T he district court c oncluded S heriff Sutherland

wa s no t pro tec ted by q ualified immunity fo r viola tions of Praytor

.16

“Go vernment officials performing discre tionary functions are e ntitled to quali fi ed imm uni ty ‘i nsofa r as their conduct

does not v

iol ate cl early

establ ished statu tory or const

itu tion al ri ghts o f which a reason

able per son would have kn

own.’” Har tley v . Pa rnell , 193 F.3 d 1263 , 1268 (11th Cir. 1 999) (quo ting Harlow v. Fitzg era ld , 102 S .Ct. 27 27, 27 38 (198 2)). Bec ause She riff Sutherland was a cting within his discretionary authori ty, our inqui

ry focuses on two questions, “first . . . whether there is ‘an under lyi ng con stit

uti onal v iol ation,’ [and] second, . . . whethe r the law the p ublic official is alleged to have violated was ‘ clearly estab lished’ at the tim e of i ncide nts gi vin g ri se to the suit .” Taylor v. Ad ams , 221 F.3d 1254, 1257 (11th Cir. 2000)(citations omit ted). Relyi ng solely on

the Praytor

violations, the district c ourt answ ered bo th questi ons “yes.” As

expla ined a bove, th is appr oach was err

or. The Praytor

order did not defi

ne, creat e or enl arge Bu tler ’s consti

tuti onal r igh ts. Ther efore, secti on 1983 liabili

ty can not be est

abli shed mer

ely be cause Prayt

or’s terms were not followed. A constit

uti onal v iol ation can onl y be establ

ished if Sheriff Suthe rlan d’s polic ies w ere ado pte d w ith de liber ate indiffe renc e to a su bst antia l risk of su icide in the jail. Because Sherif

f Sut herland was not

at the jail that n igh t and was no t in

volv ed in the arrest and detention of Butler, his section 19 83 liability (like that of the10 Becaus e Sheriff Sut herland is o nly liable based on his st atus as a po licymaker, he ca nnot be

liab le for Jai ler Cole’s fail ure to check the cells e

very hour. The record clearl y in dicates that She riff Su the rlan d had an un writ te n po licy of h ou rly ce ll chec ks. In he r br ief, C agle co nced es t his hourly check w as the pol icy

. 17 County) must be ba sed solely on his status as a policymaker. 10 As d iscu sse d in relation to the C ounty’s liability, no evidenc e existed tha t would indicate to policymaker

s, such a s Sheriff

Suthe rlan d, that a stron g li keli hood of prisoner suici des exi sted i

n the Wi nston County Jail . The jai

l had n o hist ory of suici de, Praytor did not address suicide, and Sheriff Sutherland’s own req uests for more per son nel w ere not d irect ed a t suic ide. Bec aus e no evide nce sho ws that S heriff Sutherland w as aw are of a stro ng risk of suicide at the jail, his policy of only having one nightti

me jailer cannot be deliberatel y indif ferent to thi s 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 v iolation exists, Sheriff Sutherl and is entitled to summary judgment.

C. Jaile r Co le11 Whet her Jailer Cole was inst ruc te d t o c heck the jail eve ry ho ur o r ev ery t wo hou rs is

disput ed. Chief De puty Wr ight claims he t old Jailer C ole to check t he jail every hour consist ent with Sheri

ff Sutherl and’s poli cy; Jai ler Cole cl

aims he was in

structed to check the jail ev ery two hours. For the sake of decidi ng Jail er Cole’s appeal

, we will presume that Jail

er Cole was ins tructed to check

the ja il every hour. 12 Cagle argues that Jai

ler Cole sh

ould not be entitled to quali fied i mmun ity bec ause he was not p erfor ming a discret ionary funct ion. She claims he had no d iscret ion on whe n to c heck t he jail. B ut , we have said tha t “a go ver nment offic ial ca n pr ove he ac te d wit hin t he sc op e o f his dis creti onary author ity by show in g ‘ob jec tiv e ci rcum stan ces w hi ch w ould comp el th e con clu si on that h is acti ons w ere un dertak en p ursua nt to the perf orma nce of h is duti es an d wi thi n the scope of his authority

.’” Rich v . Dollar , 841 F.2d 1558, 1564 (11th Cir. 1988)(quoting Baker v. Norman, 651 F .2d 11 07, 11 21 (5th Ci r. 1981 )). Ja

il er Col e was perf ormi ng h is duti es wi thi n the scope of his au tho rit y, an d t he dis tr ict co urt did no t e rr when it d et ermine d t hat he wa s ac ting wit hin his disc retiona ry auth ority. 18 Cagle pro ceede d against Ja iler Cole bas ed on his failure to ente r the cell and cut down Bu

tler upon f indi ng hi m and on Cole’s f ail ure, i n vi olati on of t he Praytor order, to ch

eck the cell

s on an hour

ly basi s. 11 The district court granted summary judgm ent to Jailer Cole on

his f ail ure to cut Bu tler down because of

quali fi ed immunity. Again relying on Praytor, the di strict 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 o ne p oint is clea r: “A priso n cus tod ian is n ot the guara ntor o f a prisoner’s saf

ety.” Popham , 908 F.2 d at 156 4 (citation omitted). “Abs ent knowledge of a det

ainee ’s sui cidal

tenden cies . . . [the] fai

lur e to prevent su

ici de has

never been hel d to const

itu te del ibera

te in dif feren ce.” Id. Because we presu me tha t13 We d o not kn ow of -- an d the parti es d o not cite -- an y case whe re an other in ma te any where h ad comm itted sui cide in th e unusu al wa y that B utler di d. 19 Jailer Cole was aware

of But ler’s suici de thr eats, we must look to see whet her Jai ler Cole’s acts w ere deliberately in different 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 c hec ks w as n ot d elibe rate ly indif ferent. Praytor

required the ja ilor to check the cells every hour. But Praytor did not est

ablish a constit ution al ri ght to h ourly jail checks, and Praytor

was not focused on preventing suici de. Jaile r Co le w as a wa re th at B utler ’s b elt, his s hoe lace s an d the con tent s of h is pockets ha

d been conf

iscat ed. Jail er Cole was also aware that But ler’s cell had been str ipped of impl ement s that

mig ht assi st suicide. Whi

le th ese facts indi

cated Butler was a suicide r

isk, th ey also decreased t

he risk. These acts show a lack of deli berate i ndif feren ce on the part of

jail personn el and decreased t

he li keli hood that Butler would commit sui cide. See Popham , 908 F.2d at 1564. Jai ler Cole was not req uired to fo res ee t hat B utler wo uld ha ng hims elf w ith the elas tic fro m his underwear. 13 Furt hermore, Jailer Col

e did not ig

nore Bu tler . He was in structed to watch Butler, and he did. The re cord reflects that Jailer Co le observe d Butler through the14 In Ja iler C ole’ s de po sitio n, C agle ’s law yer q ues tio ned J ailer Cole on h ow much o f the cell

was seen by

the camera. Q. Cou ld t he ca mera see all of t he ce ll? A. It co uld s ee a lmost all of t he ce ll. Q. What part of the cell could it not see? A. It coul

d not s ee j ust b el ow the top bu nk on the - - if you ’re fa ci ng th e ce ll , the lefthand side of t he ce ll. Q. So if some one wer e in t he bo tt om bu nk o n th e left -ha nd sid e o f the cell, you co uld not o bserve t hat pe rson? A. You could see them, y ou just could not see may be from thei

r mid sec tion up if they had been si

tting up. If they were l

ayin g down, you could observe pretty m uch ever y bit o f the m. Q. Oka y. A. But if t hey were s itting u p with t heir back a gainst t he wall, you could s ee the m and see thei r move men ts as fa r as thei r hand s and f eet, but as f

ar as f rom som ewhere mi dway s up, y ou coul d not see th

eir fac e, no. Q. From about their wai st or their hips up? A. Yes. 20 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

cam era rea che d alm ost all of t he c ell. 14 “The fac t that the came ra did not pick up

eve ry co rner of the cell m ight b e ev iden ce o f neglig enc e, b ut co uld ha rdly demonst rate del ibera te in dif feren ce.” Id.15 Even if Jail er Cole had vi

olated the Constitution, he l ikely would be enti

tled to qualif

ied im mun ity , hav in g vi olate d no c lea rly estab li she d con sti tution al r igh ts. We are n ot aware of an y of our cases or any case f

rom the United States or Alaba ma Supreme C

ourts that would have put Jail er Cole on notic e that hi s acts, gi ven th e circ umstan ces, were clea rly uncons titution al. Pray tor does not do the job; a consent decree li ke Pray torcannot esta blish const itut ional right s, and obv iou sl y i t can not clea rlyestabli

sh constitutional

rights. A precedent wi

th material

ly s imi lar facts is n ot always requi

red; but for a federal

right to be clearl

y establ ished, the appl

icabl e law “‘must be s ufficiently clear t hat a r easona ble official would u nderst and tha t what he is doing violates that righ

t.’” Hope v. Pelzer, 122 S.Ct. 2508, 2515 (2002)(quo ting Anderso n v. Crei ghton , 10 7 S. Ct . 30 34, 303 9 (1 987 )) . He re, if Jailer Cole examin ed t he pr ece dent s he c ou ld reasonably conclude that his conduct -- monitoring via TV cameras (and visi ting the cell, at least once, during each hour of the night) an inm ate who had been stripped of his belt, shoelaces and so on, and c onfi ned i n a stri pped cel l -- was reasona ble and was not nearl y del ibe rately ind if feren t. See Popham , 908 F.2d at 1564. Even if we we re to determine that the Constitution required more the n Jai ler Col e did, w e could not say that requi

remen t was al ready clea rly establ ish ed.
21 Assumi ng th at Jai ler Col

e was aware that

Butler had t

hreat ened sui cide, Cagle po ints to no evidenc e estab lishing that Jailer Cole ac ted with de liberate indiffer ence to thi

s risk. Jai

ler Cole di

d not violate But

ler’s const

itut ional righ ts. 15

CONCLUS ION

The Praytor

consent decree did not con

trol thi s case. No defe

ndant 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 concl usion of del ibera te in dif feren ce on the part of

Defendan

ts. But ler’s22

constitutional rights we re not violated. The district co urt’s orde r is VAC ATED and the case is REM ANDED with instructi ons to enter judgment in f avor of Defendants. VACAT ED AND RE MANDED.