FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 JUNE 18, 2003 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 02-13131

_____________________________

D. C. Docket No. 00-02679 CV-AR-J

CYNTHIA CAGLE,

as personal repres entative of the Estate

of Danny Ray Butler, deceased, 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. Docket No. 00-02679 CV-AR-J
2

CYNTHIA CAGLE,

as personal repres entative of the Estate

of Danny Ray Butler, deceased, 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 body of Winston County,

Defendants-Appellants.

_________________________________________

Appeals from the United States District Court

for the Northe rn District of Alabama

_________________________________________

(June 18, 2003)

Before EDMONDSON, Chief Judge , and KRAVITCH and GIBSON*, Circuit

Judges.

________________

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

designation.
 

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)). 

Although 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

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 County” or “ the County”), and various county officials in

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

court denied summary judgment to Winston County, Sheriff David Sutherland and

Jailer Allen Cole but granted it to the other defendants. Winston County, Sheriff

Sutherland, and Jaile r Cole appea 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 and remand with instructions to grant summary judgment to the

defendants.
 

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

BACKGROUND

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

detained in the Winston County Jail. 

A. The Suicide

Butler wa s arrested by State Troope r Max Holt for DUI shortly after six

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 Carbon 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 Officer Taylor about
 

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 threats. 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 that Butler’s belt and shoelaces had been taken. 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

Butler’s friend’s suicide and s aid that the Carbon Hill police department3 had done

that to her.

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

told Jailer Cole that he should watch Butler and check on 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, however, tell Trooper 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 monitored by a video camera . Deputy Kirkpatrick went to the ce ll and

removed items that he thought Butler could use to hurt himself, leaving only the
 

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 the

nonmoving party. See Dolihite v. Maughon, 74 F.3d 1027, 1040 (11th Cir. 1996). For 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

bunk beds and a ma ttress pad. Meanwhile, because 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. Trooper Holt and Deputy Kirkpa trick asked the inmates in the adjacent

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

each other. 

After completing the paperwork, Trooper Holt checked on Butler and left the

jail. At 9:00 p.m., Jailer Cole performed a cell check and 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 policy of the Winston County Sheriff’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
 

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

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 gave them the ce ll keys, and they proceeded to

Butler’s cell. Jailer Cole remained in the office and called an ambulance, Sheriff

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, found 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 touch. Neither Officer Taylor nor Deputy Slocumb attempted to

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

attempt to resuscitate Butler. Butler was pronounced dead.
8

B. The Praytor Order

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

lawsuit, Praytor v. Townsend. The complaint focused on jail living conditions and

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

court entered a consent decree adopting the terms of the s ettlement: Praytor v.

Towns end, CV-80-HM-250-S (N.D. Ala. June 8, 1984)[hereinafter Praytor order]. 

The Praytor order required, among other things, a minimum of two full-time

personne l on duty between 5 p.m. and 8 a.m., adequate two-way communication,

and hourly prisoner che cks. Although both Sheriff Sutherland, who took office 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

Cagle does not appeal, and we decide nothing about, the grant of summary judgment to

Chief Deputy Wright and Deputy Kirkpatrick. 

9

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

summary judgment. The district court granted Chief Deputy Wright’s and Deputy

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

and that, therefore, they were entitled to qualified 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, defeating

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

 

DISCUSSION

We review the denial of summary judgment de novo. LaChance v. Duffy’s

Draft House, Inc., 146 F.3d 832, 834 (11th Cir. 1998). We 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.
10

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

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

Ala., 30 F.3d 1390, 1396 (11th Cir. 1994). “[I]n a prisoner suic ide c ase , to prevail

under sec tion 1983 for violation of substantive rights, under . . . the . . . fourteenth

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

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

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

strong likelihood rather than a mere possibility that the self-infliction of ha rm will

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

(emphasis added). “[T]he mere opportunity for suicide, without 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 1535, 1540 (11th Cir. 1994).

A. Winston County and the County Commission 

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
11

and the deprivation of federal rights.” Bd. of the County Comm’rs of Bryan County

v. Brown, 117 S.Ct. 1382, 1388 (1997). “[P]roof that a municipality’s legislative

body or authorized de cisionmaker ha s intentionally 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 requirements

and Sheriff Sutherland’s requests. The district court determined a reasonable jury

could conc lude that this inaction was a county policy; that the policy 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 Jail. The court rejected the County’s arguments 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 1983 provide s in relevant part:

Every person who, under color of any statute, ordinance, regulation,

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 person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,
 

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

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 evaluating a local government’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) (quoting Owen v. City of Independence, 100 S.Ct. 1398, 1415 (1980)). A

consent decree, like the Praytor order, which arises out of 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. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1988)(“such orders do not

create ‘rights, privileges or immunities secured by the Constitution and laws’”); see

also Klein v. Zavaras, 80 F.3d 432, 435 (10th Cir. 1996); Martel v. Fridovich, 14

F.3d 1, 3 (1st Cir. 1993); DeGidio v. Pung, 920 F.2d 525, 534 (8th Cir. 1990). 

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

requirements of the Constitution. Because the orders cannot cre ate or expand

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

the order.9

 
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

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 relevant to the delibera te

indifference inquiry, its violation, standing alone , does not establish 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 1248, 1255 (11th Cir. 1999). In the case of a county defendant, the plaintiff

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

Tittle, 10 F.3d at 1540 (Counties may be liable for violations of constitutional rights

only when such violations occur as a result of an official county policy). 
14

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

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

likelihood, rather than a mere possibility,’ that suicide would result from [the

County’s] actions or inaction.” Tittle, 10 F.3d at 1540 (citation omitted). Cagle

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 class action. Suicide 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 requests

make no mention of a risk of suicide. These fac ts fall short of establishing 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 County officials to conclude that commonly prisoners

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

10 F.3d at 1540 (“The plaintiffs cite no authority that supports the argument tha t the

occurrence of two suicides and twenty-seven attempted suicides in the jail requires
15

County officials to conclude that all prisoners of the Jefferson County Jail 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.2d at 1565 (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 proceeded against Sheriff Sutherland based on his failure to tra in

properly Jailer Cole and the other employees 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 cells checked every

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

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

not prohibited by the Praytor order. The district court concluded Sheriff Sutherland

was not protected by qualified immunity for violations of Praytor.
16

“Government officials performing discre tionary functions are entitled 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. Parnell, 193 F.3d 1263, 1268 (11th Cir. 1999) (quoting Harlow v.

Fitzgerald, 102 S.Ct. 2727, 2738 (1982)). Because 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 public official is alleged to have violated was ‘ clearly established’ at the

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

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

Relying solely on the Praytor violations, the district court answered both

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 were adopted with de liberate indifference 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 1983 liability (like that of the
 

10Because Sheriff Sutherland 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

County) must be based solely on his status as a policymaker.10 As discussed in

relation to the County’s liability, no evidence 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 requests for more

personnel were not directed at suicide. Because no evidence shows that Sheriff

Sutherland was aware of a strong 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 not act with de liberate indifference to a strong

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

underlying constitutional violation exists, Sheriff Sutherland is entitled to summary

judgment. 

C. Jaile r Cole
 

11Whether 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. 

 

12Cagle 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 not err when it determined that he was acting within his

discretionary authority. 

18

Cagle proceeded 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

protected by qualified immunity for his failure to complete hourly checks of the

cells.12

The law on one point is clear: “A prison custodian is not the guarantor of a

prisoner’s safety.” Popham, 908 F.2d at 1564 (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
 

13We 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

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

Cole’s acts were deliberately indifferent to this risk. 

We conclude that -- under the facts of this case -- Ja iler Cole’s a llowing one

hour and forty minutes to elapse between jail checks was 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 Cole was aware that Butler’s belt, 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 Butler would hang himself with the elastic from his

underwear. 13

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

Butler, and he did. The record reflects that Jailer Cole observed Butler through the
 

14In 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 the cell?

A. It could see almost all of the 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 lefthand side of the cell.

Q. So if someone were in the bottom bunk on the left-hand side of the cell, you could

not observe 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

TV monitor a t least every 15 minutes. Closed 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 corner of the cell might be evidence of negligence, but could ha rdly

demonstrate deliberate indifference.” Id.
 

15Even 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 precedents 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

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

Cagle points to no evidenc e establishing 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 would commit suicide. The

circumstance s, even viewed in Plaintiff’s favor, will not support a finding and

conclusion of deliberate indifference on the part of Defendants. Butler’s
22

 constitutional rights were not violated. The district court’s orde r is VACATED and

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

VACATED AND REMANDED.