               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 91-2946




LAWRENCE R. ALBERTI, ET AL.,

                                          Plaintiffs,

                               versus


THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.,

                                          Defendants-Third Party
                                          Plaintiffs-Appellees,

                               versus


ANN RICHARDS, THE GOVERNOR OF THE
STATE OF TEXAS, ET AL.,

                                          Defendants-Third Party
                                          Defendants-Appellants.




                           No. 91-2996




IN RE:   GOVENOR ANN RICHARDS, ET AL.,

                                          Petitioners.
                             No. 91-6062



LAWRENCE R. ALBERTI, ET AL.,
                                           Plaintiffs-Appellees,

                               versus

THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.,
                                        Defendants-Third Party
                                        Plaintiffs, Appellees-
                                        Cross Appellants,

                               versus

ANN RICHARDS, THE GOVERNOR
OF TEXAS, ET AL.,
                                           Third Party Defendants,
                                           Appellants-Cross Appellees.




                             No. 91-6206



LAWRENCE R. ALBERTI,
                                           Plaintiff,

                               versus

THE SHERIFF OF HARRIS COUNTY, ET AL.,
                                           Defendants-Third Party
                                           Plaintiffs-Appellees,

                               versus

ANN RICHARDS, THE GOVERNOR
OF TEXAS, ET AL.,
                                           Defendants-Third Party
                                           Defendants-Appellants.



          Appeal from the United States District Court
               for the Southern District of Texas


                                  2
                       (November 20, 1992)

Before REAVLEY, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

PER CURIAM:

                                I

     In Alberti I, 937 F.2d 984 (5th Cir. 1991), we affirmed

virtually all of the rulings by the district court except we

remanded for findings required by the Supreme Court's intervening

decision in Wilson v. Seiter, 111 S.Ct. 2321 (1991).    We remanded

to allow the district court to find whether the state and county

had acted with deliberate indifference.      Alberti I, 937 F.2d at

1000.    We left to the judgment of the district court whether

additional hearings or evidence was necessary.    Id.

     The district court did not hold hearings but found on the

basis of the record evidence that the state and the county acted

with deliberate indifference to the constitutional rights of felons

in the Harris County jail.

                                II

     The state's arguments repeat many earlier made.     The county

presents more difficult questions.

     In Alberti I we observed that there was "strong if not

compelling evidence of deliberate indifference to the plight of

these ready-felons."   937 F.2d at 999.1     Nonetheless, the state


     1
        The State points out that our prior statements regarding
the officials' deliberate indifference are not the law of the
case because they were dicta in the earlier decision.
Nonetheless, I think it is unlikely that the State can change the
mind of this exact same panel a little over a year later about
the probability that they were deliberately indifferent.

                                3
argues that the finding of deliberate indifference is clearly

erroneous.     The state suggests that it is not chargeable with

knowledge     of   the   jail    conditions.        The       record,    however,

demonstrates that the state knew that by refusing to accept felons

it was causing severe overcrowding in Harris County jails.

       The state's second argument denies liability because its

officers had a good faith, objectively reasonable belief that the

state owed county prisoners no duty.                The state relies upon

principles of qualified immunity under Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982), and its requirement that the law be "clearly

established at the time an action occurred."              As plaintiffs point

out,   this   doctrine   is     applicable   only   as    a    defense    to   the

individual liability of persons. Owen v. City of Independence, 445

U.S. 622 (1980). The state enjoys no protection from any qualified

immunity of a state official.

       The closely related argument that given the asserted legal

uncertainty of state duty it could not be found to have acted with

deliberate indifference has more force.              The state points to

uncertainty of state responsibility for the care of felons in the

county jail in light of rulings by the Ruiz court and legislation

proposed by the Texas legislature; both signaled that prisoners who

are ready for transfer to TDC remain the responsibility of the

county until their transfer to TDC.            We are not persuaded.           The

state elected to refuse felons to solve its own problems of

overcrowding.      We are not persuaded that the state's duty was so

uncertain, as we explained in Alberti I.


                                      4
     The    state    also   asserts   that   we   should   apply   the    higher

standard of "malicious or sadistic intent." In Seiter, the Supreme

Court held that the level of intent required to constitute cruel

and unusual punishment depends upon the constraints facing the

official.    As examples, the Court contrasted actions responding to

a prison disturbance, which must be taken quickly, under pressure,

and with concern for compelling safety concerns with the provision

of medical care to prisoners which "does not ordinarily clash with

other equally important governmental responsibilities."                  We read

Seiter to hold that the constraints imposed on the officer which

justify the "malicious and sadistic" standard must at least be of

an emergency or immediate nature.

     The state argues that it could not relieve overcrowding

because the legislature would not appropriate more funds for prison

expansion and it was constrained by concern for public safety

inherent in early release of felons.          Justice Scalia's opinion in

Seiter leaves open how difficulty in funding might negate the

intent requirement. In Alberti I, we noted that "before Seiter, it

was well established in this circuit that inadequate funding will

not excuse the perpetuation of unconstitutional conditions of

confinement."       937 F.2d at 999, citing Smith v. Sullivan, 611 F.2d

1039, 1044 (5th Cir. 1980).       How the Supreme Court will develop the

"funding" defense to eighth amendment violations is not certain.

Regardless, the evidence that an absence of funding made the state

unable to accept the convicted felons is equivocal.                Indeed, the

state has at earlier times pointed to the Ruiz decree's setting of


                                       5
population    levels    as   the   culprit.     But   as   we    explained    in

Alberti I, that decree was no barrier to the state's constitutional

duty.   The concern about the release of felons is the flip-side of

the inadequate funding argument:          if the state would simply expand

its prison facilities, no excess release of prisoners would be

necessary.    We find no error in the finding by the district court

that the state was deliberately indifferent and find no occasion

for further exploring the "funding" defense.

     The     district   court's     conclusion    that     the    county     was

deliberately indifferent to the unconstitutional conditions in its

jail is not so easy.         The record is mixed.     There is evidence of

"arguably formidable constraints" facing the county including the

dramatic increase in the number of state ready-felons being kept in

the county jail, largely beyond the county's control to prevent.

Nonetheless, the district court found that the jails would exceed

"constitutional capacity" with all ready-felons removed.

     Whether county efforts to relieve overcrowding were sufficient

to avoid a finding of deliberate indifference is a close case.               The

county can point to several things it did to reduce the jail

population.    Some of these were successful; some were not through

the failure of other participants in the legal system to do their

part.   For example, the county encouraged local judges to use

pretrial release for certain low-risk offenders, but the Special

Master found that the judges were reluctant to do so.             On the other

hand, the county has continued to operate the jail over its

constitutional capacity for some time.         As we indicated in Alberti


                                      6
I, "[w]hile the huge jump in the population of ready-felons might

weigh against a finding of deliberate indifference, other facts

could weigh in favor of such a finding."         937 F.2d at 1000.      The

district judge was intimately familiar with the push and shove of

state government and its response to sorry prison conditions. This

trial judge was uniquely informed of the county "mental state" and

we decline to upset it.    In short, the district court's finding of

deliberate indifference is not clearly erroneous.

     The   county   defendants   assert    problems   with   the   remedies

imposed against them by the district court. We declined to address

the remedial issues in Alberti I.         The main argument seems to be

that the district court abused its discretion by imposing a cap on

the jail population.    The county defendants argue that this is the

most intrusive remedy and therefore an abuse of discretion.            Ruiz

v. Estelle, 679 F.2d 1115, 1144 (5th Cir. 1982).         A numerical cap

on the number of prisoners is not an overly intrusive remedy.            It

gives the county maximum flexibility in determining on its own how

to meet the population goals.          The remaining contentions are

without merit.

     AFFIRMED.




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