                                                                                  [PUBLISH]
                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             __________________________                        FILED
                                                                      U.S. COURT OF APPEALS
                                    No. 99-12813                        ELEVENTH CIRCUIT
                                                                        SEPTEMBER 07, 2000
                             __________________________
                                                                         THOMAS K. KAHN
                                                                              CLERK
                           D.C. Docket No. 97-01421-CV-D-N


JOE MARSH, LEROY OWENS,

                                                                        Plaintiffs-Appellants,

       versus

BUTLER COUNTY, ALABAMA,
THE BUTLER COUNTY COMMISSION, et al.

                                                                      Defendants-Appellees.

                             __________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                           __________________________

                                    (September 7, 2000)

                      ON SUA SPONTE RECONSIDERATION

Before BIRCH, BARKETT and ALARCON*, Circuit Judges.


______________
*Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BARKETT, Circuit Judge:
      Upon reconsideration, this court, sua sponte, VACATES its prior opinion in

this matter, published at 212 F.3d 1318 (11th Cir. 2000), and substitutes the

following in its place:

      Joe Marsh and Leroy Owens, former inmates at Butler County Jail in

Greenville, Alabama, appeal the district court’s dismissal pursuant to Federal Rule

of Civil Procedure 12(b)(6) of their complaint against Butler County, the Butler

County Commission, and Sheriff Diane Harris in both her individual and official

capacities. Marsh and Owens sued under 42 U.S.C. § 1983, claiming that their

rights under the Eighth and Fourteenth Amendments were violated by the County,

the County Commission, and the Sheriff’s deliberate indifference to the substantial

risk of serious harm to inmates at Butler County Jail. Owens also claimed that his

rights under the Fourteenth Amendment were violated by their deliberate

indifference to his serious medical needs. Marsh and Owens claim that the injuries

they suffered, although arising from distinct incidents, were caused by the same

unconstitutional jail conditions and jail practices. The district court dismissed the

complaint under Federal Rule of Civil Procedure 12(b)(6), on the grounds that

Butler County and the Butler County Commission are protected from this suit by

legislative immunity, and that Sheriff Harris is protected by qualified immunity.

We reverse.


                                           2
                                           DISCUSSION

         The dismissal of a complaint for failure to state a claim is reviewed de novo.

In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996) In conducting such a review,

appellate courts must keep in mind that “a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.” Scheuer

v. Rhodes, 416 U.S. 232, 236-37 (1974). In interpreting Federal Rule of Civil

Procedure 8, which governs the filing of complaints, the Supreme Court has held

that a plaintiff need only set out “‘a short and plain statement of the claim’ that will

give the defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). That requirement is no

different in cases brought under Section 1983. Indeed, the Court has explicitly

held that courts may not apply a “heightened pleading standard” over and above

the dictates of Federal Rule of Civil Procedure 8(a) to claims under Section 1983.1


  1
      Federal Rule of Civil Procedure 8(a) states:

         (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an
         original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a
         short and plain statement of the grounds upon which the court's jurisdiction
         depends, unless the court already has jurisdiction and the claim needs no new
         grounds of jurisdiction to support it, (2) a short and plain statement of the claim
         showing that the pleader is entitled to relief, and (3) a demand for judgment for
         the relief the pleader seeks. Relief in the alternative or of several different types
         may be demanded.

                                                     3
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 168 (1993).

      This case involves a complaint filed against Butler County, the Butler

County Commission, and Sheriff Diane Harris. The claims against the County and

the County Commission on the one hand and Sheriff Harris on the other involve

different questions of liability and immunity as different types of governmental

entities are entitled to different types of immunity. In order to determine whether

Marsh and Owens have stated legal claims against Butler County, the Butler

County Commission, and Sheriff Harris, we must first ascertain the type of

governmental body or officer each represents, which will determine the type of

conduct each may be held liable for under Section 1983. In determining the

particular functions of a governmental body or official, we must refer to the state

law definitions of that entity’s functions. Turquitt v. Jefferson County, Ala., 137

F.3d 1285, 1287 (11th Cir. 1998) (en banc). This Court has stated that “[o]ur

analysis of Alabama law persuades us that an Alabama sheriff acts exclusively for

the state rather than for the county in operating a county jail.” Id. at 1288. Thus,

we examine Marsh and Owens’ complaint to determine both whether it states a

claim against the County and County Commission as local governmental bodies,

and whether it states a claim against Sheriff Harris as a state official in either her


                                            4
official or personal capacity. Accordingly, we discuss the claims against the

County and the Commission separately from those against Harris.

I. Claims against Butler County and the Butler County Commission2

       A. Allegations in the Complaint

       In order to state a claim under Section 1983 against a local governing body,

a plaintiff must allege that he suffered an injury under federal constitutional or

statutory law, and that his injury was caused by “a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers.”

Monell v. Dept. of Social Servs., 436 U.S. 658, 690 (1978). A local governing

body may also be held liable for “constitutional deprivations visited pursuant to

governmental ‘custom’ even though such a custom has not received formal

approval through the body’s official decisionmaking channels,” but may not be

held liable under a theory of vicarious liability. Id. at 690-91. The extent to which

the County may be held liable for violations of federal law at the Butler County

Jail is proscribed by the extent to which the County is responsible for the

conditions therein. In Alabama, the distinct responsibilities of counties and

sheriffs with respect to the operation and maintenance of county jails have been


  2
     We henceforth refer to Butler County and the Butler County Commission collectively as
“the County.” The County Commission is the governing body of the County, and the liability
and immunity analyses are identical for both entities.

                                              5
recognized by this Court. We have held that the “duties of the counties with

respect to the jails ‘are limited to funding the operation of the jail and to providing

facilities to house the jail.’” Turquitt v. Jefferson County, Ala., 137 F.3d 1285,

1289 (11th Cir. 1998) (en banc) (quoting Stark v. Madison County, 678 So.2d 787,

787 (Ala. Civ. Ct. App. 1996)). “The county commission is charged with erecting

and maintaining jails, and each county is required to maintain a jail of sufficient

size and strength to secure the prisoners.” Id. at 1289-90 (quoting Ala. Code §§

11-14-10, 11-14-13 (1989)).

      In their complaint, Marsh and Owens claim that the County’s “deliberate

indifference to the substantial risk of serious harm to inmates at Butler County

Jail” resulted in substantial injury to them, in violation of their Eighth and

Fourteenth Amendment rights. In order to state such a claim successfully for the

purposes of a Rule 12(b)(6) motion, Marsh and Owens must allege facts supporting

each element of a deliberate indifference claim. Thus, the complaint must allege

facts demonstrating: 1) that inmates at Butler County Jail were subjected to a

substantial risk of serious harm; 2) that the County was deliberately indifferent to

that risk; 3) that there was a causal link between the acts or omissions of the

County and the excessive risk of violence; and 4) that there was a causal link

between the excessive risk of violence and the injuries suffered by Marsh and


                                           6
Owens. Hale v. Tallapoosa County, 50 F.3d 1579, 1582-84 (11th Cir. 1995); see

also Farmer v. Brennan, 511 U.S. 825, 837, 847 (1994). For the purposes of

reviewing the district court’s dismissal of the plaintiffs’ complaint, we must accept

all facts alleged in the complaint as true. Fortner v. Thomas, 983 F.2d 1024, 1027

(11th Cir. 1993). Of course the facts as stated herein may differ from the facts

ultimately determined by a jury.

      The complaint in this case makes the following allegations about conditions

in Butler County Jail. The Butler County Jail, a two-story building located in

downtown Greenville, Alabama, was constructed in 1929 and 1930. By 1996,

because the County failed to maintain the facility over the years, the building was

in an extremely dilapidated and poor physical condition. Sewage leaked from

overhead pipes. Showers were covered with rust, mildew and peeling paint. Sinks

and toilets were dilapidated and inoperable. Hallways were littered with trash.

Windows were cracked and could not be closed. Shards of broken glass lay in the

window sills. Rats, cockroaches and other rodents and vermin entered the jail

through broken windows and cracks in the walls. The locks on inmate cells on the

second floor of the Jail had been inoperable since at least 1995. As a result,

inmates housed on the second floor have been able at all times to open their cell

doors and walk into the hall, other cells, or the dayrooms whenever they wished,


                                          7
and they did so.

       The complaint further alleged that the Jail was grossly understaffed. Despite

the fact that jailers had numerous duties,3 the Jail was often staffed by only one

person. Jailers spent most of their time sitting at a desk at the entrance to the Jail

on the first floor, from which position they could not view any of the inmate cells,

dayrooms, or the kitchen. In fact, most inmate living areas at the Jail were

completely unsupervised. Jailers were “too afraid to conduct visual inspections of

inmate cells on the second floor” because the broken locks prevented them from

ever locking down the inmates. The Jail had no visual or audio surveillance

system on the second floor, and no jailer was assigned there.

       Because of the poor condition of the Jail, inmates were able “to vandalize

[the facility], break windows, and rip metal pipes and other dangerous objects from

the structure.” Due in part to the low perimeter fence around the exercise yard,

inmates were also “able to obtain screwdrivers, sticks, and [make-shift knives

called] ‘shanks’ from outside the exercise yard.”


   3
     Jailers’ duties included controlling the inmate population, which could exceed fifty persons;
administering inmate intake and release; controlling the electronic gate in the fence surrounding
the Jail; supervising visitation and outdoor exercise; handling mail; coordinating food service;
dispensing medication; supervising trustees; and answering the Jail telephone. On weekends,
jailers were also responsible for answering telephone calls to the Butler County Sheriff’s
Department and for operating the dispatch radio. Because their duties were so overwhelming,
jailers often relied on unsupervised inmate trustees to assist them by, e.g., distributing medicine,
unloading supplies, and sometimes handling the Jail’s keys.

                                                 8
      As a result of the County’s failure to maintain a jail of sufficient size and

strength to adequately secure and protect the prisoners, Marsh and Owens contend

that inmates at Butler County Jail faced a substantial risk of serious harm at the

hands of other inmates. Inmates were able to acquire weapons from in and around

the Jail facility, and were able to roam freely among the rooms on the second floor

without supervision. In the event that those unsupervised and armed inmates

attacked someone, inmates on the second floor were unable to contact jailers

directly. If they needed assistance, they either shouted out the windows or banged

on the walls. Even then, “[j]ailers often did not respond.”

      The complaint further alleges that the County “knew and should have known

about [the] risk” to inmates, and “failed to take measures to abate [the] substantial

risk of serious harm.” Marsh and Owens alleged that the County was “repeatedly

informed that more staff was needed at the jail” and that “the jail was not

reasonably secure.” Critical reports from the Alabama Department of Corrections

and several other state agencies, numerous inmate complaints and requests for

assistance, and a federal civil rights action filed in May 1996 put the County on

notice of the poor conditions at the Jail. In spite of these warnings, by July 1996, it

had failed to take measures to ameliorate the situation. The County “did not

improve the physical condition of the jail or maintenance practices . . ., did not


                                           9
repair the locks on the second floor,” and did not increase staffing at the Jail.

      In their complaint, Marsh and Owens alleged that the substantial risk of

harm faced by the inmates at Butler County Jail was traceable to the acts and

omissions of the County. In particular, they alleged that they were subject to a

substantial risk of serious harm because inmates were able to fashion weapons by

vandalizing the decrepit Jail facility. Inmates were also able to secure weapons

from in and around the outdoor exercise area due in part to the inadequacy of the

perimeter fence. Moreover, Marsh and Owens alleged that inmates faced

substantial risk of harm as a result of the broken locks on the second floor of the

Jail. Because jailers were not able to lock down inmates on the second floor, the

jailers were afraid to enter the floor, and thus could not perform necessary health

and safety checks. Inmates were also permitted to roam freely among the cells and

other rooms on the second floor because of the broken locks. In addition, the Jail

did not utilize any visual or audio surveillance system. Finally, Marsh and Owens

alleged that the Jail was chronically under-staffed, resulting in inadequate

supervision and discipline of the inmates.

      The complaint then delineates the injuries suffered by Marsh and Owens as a

result of the deplorable jail conditions and the County’s failure to address them.

As to Marsh, the complaint alleges the following. On July 2, 1996, Joe Marsh was


                                          10
resting on a bunk bed in a cell on the second floor of the Jail when four inmates

entered the cell and one of them challenged Marsh to a fight in the dayroom.

“When Marsh refused, the inmate struck him across the head with a metal pipe.”

The three other inmates joined in the assault on Marsh, which lasted for several

minutes. “They punched, kicked, and hit Marsh with the pipe while he was balled

up in a corner. One inmate cut Marsh with a screwdriver while the other three held

him.” While the assault was in progress, other inmates on the second floor

“shouted and pounded on the walls” in an attempt to procure assistance from the

jailers on the first floor. After being struck with the pipe a final time in the head,

Marsh managed to walk toward the entrance to the back side to seek help. His face

and head were covered in blood. As a result of the assault, Marsh suffered

lacerations on his face, on the back of his head, and on this back. In addition, he

sustained a fracture to the bone above his left eye. Since leaving the Jail, Marsh

has suffered from frequent headaches and nightmares about the assault.

      On the evening of July 3, Leroy Owens entered the dayroom on the second

floor of the Jail, followed by the four inmates who had assaulted Marsh. One of

those inmates “hit Owens over the head with a metal pipe,” and “[a]nother hit him

with a water cooler.” They proceeded to smash his head against a metal table, kick

him, stomp on him, stab him, and beat him. Owens screamed for help. A number


                                           11
of other inmates pounded on the walls and called for help, one of them yelling,

“[t]hey’re killing him up here.” Only one jailer was on duty, and he did not come

to Owens’ assistance. Instead, he called the Greenville City Police, who refused to

approach the second floor when they arrived at the Jail. The jailer then called

Sheriff Harris and the jail administrator, both of whom refused to come to the Jail.

The jailer finally called the chief deputy of the Sheriff’s Department, who came to

the Jail.

       The assault lasted between 30 minutes and an hour, during which time the

four inmates stopped beating Owens and returned to their cells several times

because they mistakenly thought they heard approaching jailers. Each time, they

returned to the dayroom and continued to beat Owens when they realized that

nobody was coming. When the assault was over, Owens lay on the floor of the

dayroom in a pool of his blood. Inmates continued to call for help. Approximately

20 minutes after the assault ended, the chief deputy removed Owens from the

second floor and had him transported to the emergency room.

       B. District Court’s Ruling

       The County moved for dismissal on the ground that it “does not have

authority to control or set policies or customs for the operation of the Butler

County Jail, nor does it have the authority to promulgate policies for treatment of


                                          12
inmates housed in the Butler County Jail.” The district court granted the County’s

motion to dismiss without holding a hearing on the ground that the County and

County Commission both enjoyed legislative immunity under the purview of 28

U.S.C. § 1915(e)(2)(B)(iii). Clearly, legislative immunity is not applicable in this

case. As is plain from the title of Section 1915, that statute applies only to

proceedings in forma pauperis, which this suit was not. More importantly,

however, it is well settled that “immunity from suit under Section 1983 extends to

public servants only in their individual capacities,” but does not protect

governmental entities. Board of County Comm’rs v. Umbehr, 518 U.S. 688, 677 n.

* (1996). In this case, the County Commissioners were not sued in their individual

capacities. Therefore, legislative immunity has no bearing on the complaint in this

case. The district court clearly erred in concluding that the County and County

Commission enjoyed any sort of legislative immunity from this suit.

      The County concedes that the district court clearly erred in dismissing the

suit on this basis, but asks that we nonetheless affirm the dismissal because the

complaint fails to state claims of constitutional deprivations for which the County

is responsible under this Court’s en banc decision in Turquitt v. Jefferson County,

Ala., 137 F.3d 1285 (11th Cir. 1998). Alternatively, the County asks that we

affirm the dismissal because the complaint fails to allege that the County was on


                                          13
notice of the constitutional deficiencies at the Jail.

      Looking anew at the allegations in the complaint, we find that Marsh and

Owens alleged sufficient facts to state a claim against the County under Section

1983 for deliberate indifference to a substantial risk of serious harm at the Butler

County Jail. It is true that the County may not be responsible for all of the

conditions at the Butler County Jail. The extent to which the County may be

considered to have caused conditions leading to a constitutional deprivation is

prescribed by the duties and responsibilities Alabama counties have with regard to

county jails. This Court has found that:

      The duties of the counties with respect to the jails are limited to
      funding the operation of the jail and to providing facilities to house
      the jail. . . . The county commission is charged with erecting and
      maintaining jails, and each county is required to maintain a jail of
      sufficient size and strength to secure the prisoners. . . . In construing
      these provisions, the Alabama courts have made it clear that the duty
      of the county to erect and maintain a county jail pertains exclusively
      to the physical plant of the jail. The duty to maintain a jail under
      [Alabama Code] § 11-14-10 is merely the duty to keep the jail and all
      equipment therein in a state of repair and to preserve it from failure or
      decline.

Turquitt v. Jefferson County, Ala., 137 F.3d 1285, 1289-90 (11th Cir. 1998) (en

banc) (internal quotation marks and citations omitted). Although these duties are

not as extensive as those owed by the Sheriff, there is in fact a nexus between the

County’s sphere of responsibility and the jail conditions alleged to have caused the


                                           14
substantial risk of serious harm.

      The complaint alleged that the risk of harm at the Jail stemmed in part from

the inmates’ ability to fashion weapons by vandalizing the dilapidated physical

structure of the Jail and by removing dangerous objects such as metal pipes and

broken glass from the ailing building. It is the County that is charged with the duty

of maintaining the physical structure of jails and keeping those structure and the

equipment therein in a state of repair. Marsh and Owens also alleged that inmates

were able to obtain weapons from outside the outdoor exercise area because the

perimeter fence was too low. The County was also charged with erecting and

maintaining a jail facility of sufficient size and strength to secure the inmates. The

complaint also charged that, because all the cell locks on the second floor were

broken for at least a year, jailers were afraid to supervise inmates adequately and

inmates were able to roam freely among different cells, which created a risk of

assault and intimidation. The lack of surveillance was exacerbated by the Jail’s

failure to use a video or audio surveillance system. Again, it is the responsibility

of the County to establish and maintain a jail that is in good repair and is

sufficiently secure. Finally, the Jail’s alleged under-staffing problems may have

been caused by insufficient funding. The County is responsible for funding the

operation of the jails.


                                          15
       Moreover, Marsh and Owens did in fact allege that the County was actually

aware of the dangerous conditions and did nothing to remedy the problems,

evidencing deliberate indifference to the risk of harm. We also find that the

complaint contained sufficient facts to allege a causal link both between the acts or

omissions of the County and the excessive risk of harm, and between the excessive

risk of violence and the injuries suffered by Marsh and Owens.

       Because the complaint filed by Marsh and Owens alleged with sufficient

particularity all of the elements necessary to find municipal liability for a

constitutional deprivation under Section 1983, we find that the district court erred

in dismissing this case against Butler County and the Butler County Commission.

II. Claims against Sheriff Harris

       In their complaint, Marsh and Owens alleged that Sheriff Harris, in both her

personal and her official capacity,4 was deliberately indifferent “to the substantial

risk of harm to inmates at the Butler County Jail.” In addition, Owens alleged that


   4
     Although the complaint states that “Diane Harris is sued in her official capacity as Sheriff of
Butler County,” the caption states that Harris is sued in her personal as well as her official
capacity. This Court has previously said that “the complaint itself, not the caption, controls the
identification of the parties and the capacity in which they are sued.” Welch v. Laney, 57 F.3d
1004, 1010 (11th Cir. 1995). We did so, however, in allowing a claim to go forward despite a
misleading caption. In this case, the caption is sufficient to put Harris on notice that she was
subject to suit under Section 1983. Because Harris is immune from suit against her in her
official capacity, we will consider all claims against her as against her in her personal capacity.
The district court, having addressed the issue of Harris’ qualified immunity, also treated the
complaint as naming Harris in her personal as well as her official capacity.

                                                16
Sheriff Harris, in her personal capacity, was deliberately indifferent to his serious

medical needs.5 In order to find that the district court erred in dismissing Marsh

and Owens’ claims against Sheriff Harris, we must find that they alleged sufficient

facts to demonstrate that Harris, acting within her discretionary functions, violated

their clearly established constitutional rights.

       This Court has found that an Alabama sheriff “acts exclusively for the state

rather than for the county in operating a county jail.” Turquitt, 137 F.3d at 1288.

Because she is an officer of the State, the Eleventh Amendment immunizes Harris

from being sued in her official capacity. Zatler v. Wainwright, 802 F.2d 397, 400

(11th Cir. 1986). Thus, the district court was correct in dismissing the claims

against Harris in her official capacity. In order to state a successful claim under

Section 1983 against a state official in her personal capacity, a plaintiff must first

overcome the protections of qualified immunity. Qualified immunity protects

government officials from civil suit when they have acted within their

discretionary functions in a manner that violates “no clearly established statutory

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

v. Fitzgerald, 457 U.S. 800, 818 (1982). “Defendants are entitled to qualified

   5
     In the complaint, Owens asserts this claim against the “Defendants.” Because there is no
allegation anywhere else in the complaint to support a theory that the County showed deliberate
indifference to his serious medical needs, we will consider this claim as against Sheriff Harris
only.

                                               17
immunity in a Rule 12(b)(6) motion to dismiss only if the complaint fails to allege

facts that would show a violation of a clearly established constitutional [or federal

statutory] right.” Kyle K. v. Chapman, 208 F.3d 940, 942 (11th Cir. Apr. 5, 2000).



      A. Marsh and Owens’ Claim of Deliberate Indifference to a Substantial
      Risk of Serious Harm

             1. Allegations in the Complaint

      It is well settled law that a “prison official’s deliberate indifference to a

substantial risk of serious harm to an inmate violates the Eighth Amendment.”

Farmer, 511 U.S. at 828. In order to survive Rule 12(b)(6) motion, the Complaint

in this case must have alleged that 1) inmates were subjected to a substantial risk of

serious harm, 2) Sheriff Harris was deliberately indifferent to that risk, 3) the

Sheriff’s deliberate indifference caused that risk, and 4) her deliberate indifference

caused the harm suffered by Marsh and Owens. See Zatler, 802 F.2d at 400-01. In

order to state the requisite causal connections, Marsh and Owens need not have

alleged that Harris was personally involved in the actions that violated their

constitutional rights. This Court has made clear that “[p]ersonal participation is

only one of several ways to establish the requisite causal connection. . . . An

official may also be liable where a policy or custom that [she] established or

utilized results in deliberate indifference to an inmate’s constitutional rights.”

                                           18
Zatler, 802 F.2d at 401 (internal citations omitted).

      Many of the complaint’s factual allegations that are outlined above also

implicate the Sheriff in the alleged constitutional deprivations. Marsh and Owens

alleged that inmates were able to acquire or fashion weapons due in part to both

inadequate supervision by prison personnel and a systematic failure to search

inmates when they returned from the exercise yard. They also alleged that jailers

failed to inspect cells and inmates on the second floor, and thus could not conduct

“counts” to ensure the health and safety of the inmates. They further alleged that

the personnel at the Jail were inadequately trained and that the Jail was routinely

“grossly understaffed.” They charged that the Jail did not have any system for

screening entering inmates, and “did not ask new inmates about their mental health

background or other medical conditions.” Nor did they ascertain whether

incoming inmates had any existing conflicts with persons already imprisoned at the

Jail. Moreover, they claimed that the Jail had no system for classifying or

separating inmates, instead housing violent offenders with non-violent offenders,

serious felons with misdemeanants, juveniles with adults, and mentally ill persons

with those in good mental health. Finally, Marsh and Owens alleged that the Jail

employed “[n]o system of discipline,” and “did not discipline or even segregate

inmates who cursed, flooded cells, broke windows, destroyed property, attempted


                                          19
to escape, threatened jailers, or assaulted other inmates.” As a result of these

alleged failures in supervision, security, and other inmate-related policies, Marsh

and Owens alleged that the conditions at Butler County Jail created “an intolerably

high risk of intimidation, assault, and other abuse among inmates at the jail.”

      Marsh and Owens also alleged that Sheriff Harris was aware of the problems

and conditions that led to the substantial risk to inmates, and, by failing to remedy

those problems, evidenced deliberate indifference to the risk of harm faced by

inmates. They alleged that the Jail Administrator had informed Sheriff Harris that

the Jail was understaffed, and that the three inmate escape attempts during the first

half of 1996 all occurred when only one jailer was on duty. They also contended

that the jail inspector for the Alabama Department of Corrections had informed the

Sheriff that the Jail was not reasonably secure, and that the Sheriff had received

numerous critical inspection reports and inmate complaints. Notwithstanding this

notice, Marsh and Owens alleged that the Sheriff did nothing to address the

problems in the Jail or to alleviate the substantial risk of harm.

      Marsh and Owens alleged in their complaint that Sheriff Harris is

responsible under Alabama law for the general operation of the Jail, and thus acts

as final policy maker with respect to the operation of the Jail. They further alleged

that the substantial risk of harm they faced was a direct result of the staffing and


                                           20
operational policies of the Jail. They alleged that the risk of harm arose from the

ability of the inmates to bring weapons from the exercise yard into the Jail, from

the inadequate supervision of inmates, from the Jail’s failure to classify and

segregate inmates, and from the Jail’s lack of a disciplinary system.

      Finally, Marsh and Owens alleged that Sheriff Harris’ failure to remedy the

problems at the Jail – that is, her deliberate indifference to the substantial risk of

harm faced by the inmates – caused them to suffer injuries. Both Marsh and

Owens alleged that they were attacked by inmates who brandished weapons such

as a screwdriver that they may have acquired while outside in the exercise yard.

Both victims alleged that they were subjected to prolonged attacks because jailers

refused to come to their assistance. In the case of Owens, the only jailer on duty

refused to come to his assistance until other Jail personnel could accompany him.

After the four attacking inmates allegedly assaulted Marsh, they were not

disciplined, interrogated, or segregated, even after they were later heard plotting to

assault a female guard. Marsh and Owens alleged that those four inmates were left

to roam freely among the rooms on the second floor, where they later assaulted

Owens and again attacked Marsh with a fire extinguisher after he returned from the

emergency room. Indeed, it was the very day after Marsh was beaten that Owens

was extensively beaten while no jailer came to his aid. After being left in a pool of


                                           21
his own blood, Owens was finally removed from the second floor and taken to the

emergency room. Owens was treated at the hospital, after which the deputies once

again took him into their custody, agreeing to monitor his injuries and his health.

Nonetheless, the deputies left him without shoes or supervision by the side of an

interstate.

       Owens further alleged that he was injured partly as a result of the fact that

the Jail did not have any system for screening or segregating inmates. He alleged

that he has suffered from mental illness since at least 1979, has been diagnosed as a

paranoid schizophrenic with borderline intellectual functioning, and has been

institutionalized in a number of mental health facilities. He alleged that the

affidavit upon which his arrest warrant was based in July 1996 stated that Owens

was a “mental patient” and that he was “talking nonsense.” When Owens arrived

at the Jail, nobody asked him about his mental illness, and he was placed in the

general population on the back side of the second floor. While he was incarcerated

at the Jail, Owens alleged that his mental health problems were obvious as he

allegedly proclaimed that he was a prophet of God. Another inmate informed a

jailer that Owens should be moved because he was “not right in the head” and was

aggravating other inmates. Some inmates complained about Owens’ hygiene and

harassed him, forcing him to move from cell to cell. Owens requested that he be


                                          22
placed in a cell by himself, but his request was refused.

             2. District Court’s Ruling

      The district court found that Marsh and Owens had failed to state a claim of

deliberate indifference to a substantial risk of serious harm against Sheriff Harris

because they had stated insufficient facts to overcome her qualified immunity. In

so holding, the court concluded that Marsh and Owens had failed to allege that

Harris had crossed a “bright line” into violations of clearly established law.

      In order to state a claim that Harris violated clearly established law by

displaying deliberate indifference to a substantial risk of serious harm to inmates,

Marsh and Owens needed to allege 1) that they were “incarcerated under

conditions posing a substantial risk of serious harm,” and 2) that prison officials –

in this case Sheriff Harris – demonstrated “‘deliberate indifference’ to inmate

health or safety.” Farmer, 511 U.S. at 834. Marsh and Owens clearly did so in this

case. In Hale v. Tallapoosa County, 50 F.3d 1579, 1582-84 (11th Cir. 1995), this

Court found that an inmate alleged sufficient facts to survive the jailer defendants’

motion for summary judgment based on qualified immunity. The inmate plaintiff

in that case complained that he faced a substantial risk of serious harm from

inmate-on-inmate violence, and had in fact been assaulted by other inmates, due in

part to the jail’s failure to segregate inmates, the jail’s under-staffing, the


                                            23
inadequate training of jailers, and the jailers’ inadequate supervision and

monitoring of inmates. The district court in this case stated that, although Marsh

and Owens “have asserted essentially the same claims as the inmates in the Hale

case,” this case is distinguishable because Marsh and Owens had failed to allege

that “inmate-on-inmate violence occurred regularly when the jail was over-

crowded,” as was the case in Hale. We do not find that fact to be distinguishing.

Marsh and Owens do not need to allege that previous incidents of violence

occurred at the Jail in order to state a claim for deliberate indifference to a

substantial risk of serious harm. Indeed, the Supreme Court has held that the

standard for demonstrating deliberate indifference “does not require a prisoner

seeking ‘a remedy for unsafe conditions [to] await a tragic event [such as] an

actua[l] assaul[t] before obtaining relief.’” Farmer, 511 U.S. at 845 (quoting

Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (alterations in original)).

      The conditions at the jail in Hale that gave rise to the history of inmate-on-

inmate violence are substantially similar to the conditions alleged in this case to

have created the substantial risk of serious harm at Butler County Jail. Indeed, the

living conditions at Butler County Jail are a good deal worse than were the

conditions in Hale. Butler County inmates were forced to endure squalid

conditions that in fact put prisoners in harm’s way rather than securing their safety.


                                           24
Although the “Constitution ‘does not mandate comfortable prisons,’ . . . neither

does it permit inhumane ones.” Farmer, 511 U.S. at 832 (quoting Rhodes v.

Chapman, 452 U.S. 337, 349 (1981)). Rather, prison officials have a duty to

provide humane conditions of confinement and to protect prisoners from violence

at the hands of other prisoners. Farmer, 511 U.S. at 832. “Having incarcerated

‘persons [with] demonstrated proclivit[ies] for antisocial criminal, and often

violent, conduct,” . . . having stripped them of virtually every means of self-

protection and foreclosed their access to outside aid, the government and its

officials are not free to let the state of nature take its course.” Id. (quoting Hudson

v. Palmer, 468 U.S. 517, 526 (1984)). Marsh and Owens alleged that armed

inmates were permitted to roam freely and unsupervised among second floor

rooms, which housed all classes of detainees. Moreover, the jailers themselves

were afraid to perform health and safety checks on the second floor because they

were unable to lock down the inmates. These allegations are sufficient to state a

claim that inmates at Butler County Jail faced a substantial risk of serious harm at

the hands of other inmates. Moreover, the allegations are sufficient to state a claim

that Sheriff Harris, as final policy maker for Butler County Jail, violated clearly

established laws by creating the conditions at the Jail that gave rise to the threat of

danger.


                                           25
        Marsh and Owens also alleged sufficient facts to demonstrate that Sheriff

Harris was deliberately indifferent to the risk of harm at the Jail. “Whether a

prison official had the requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference from circumstantial

evidence, . . . and a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at

841. Marsh and Owens alleged both that Sheriff Harris had been put on notice by

numerous sources that the Jail was understaffed and that it was “not reasonably

secure,” and that she had failed to take any steps to alleviate the risk of harm.

Allegations that “the defendant-official being sued had been exposed to

information concerning the risk and thus ‘must have known’ about it . . . could be

sufficient to permit a trier of fact to find that the defendant-official had actual

knowledge of the risk.” Farmer, 511 U.S. at 842-43. Marsh and Owens alleged

sufficient facts in their complaint to state a claim that Sheriff Harris was

deliberately indifferent to the substantial risk of serious harm at the Butler County

Jail.

        Because Marsh and Owens alleged all of the elements necessary for a

successful claim against a state official in her personal capacity under Section 1983

for deliberate indifference to the substantial risk of serious harm, and because they


                                           26
alleged those elements with sufficient specificity to put Sheriff Harris on notice of

the grounds upon which their claim rested, we find that the district court erred in

dismissing their claim.

       B. Owens’ Claim of Deliberate Indifference to Serious Medical Needs

             1. Allegations in the Complaint

       We now turn to Owens’ claim against Harris for deliberate indifference to

his serious medical needs, which must meet criteria similar to that of the serious

harm claim in order to survive a Rule 12(b)(6) motion. The Supreme Court has

held that “deliberate indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.

Georgia, 428 U.S. 153, 173 (1976)). In order to state such a claim, an inmate must

allege more than negligence; he must “allege acts or omissions sufficiently harmful

to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at

105.

       In order to survive Rule 12(b)(6) motion, the complaint in this case must

have alleged that 1) Owens suffered from a serious medical need, 2) Sheriff Harris

was deliberately indifferent to that need, and 3) Harris’ deliberate indifference

caused Owens to suffer harm. See McElligot v. Foley, 182 F.3d 1248, 1254-55


                                          27
(11th Cir. 1999).

      Owens has alleged that he suffered from “serious medical needs” after being

released from the hospital following his assault at the Jail. He claims that the

hospital staff “instructed the Sheriff’s Department to follow specific procedures to

care for Owens’s head wounds and other injuries. It instructed them to monitor his

level of consciousness, pupils, vision, and coordination, and to call the hospital

immediately if any change occurred.” His condition was diagnosed by a physician

as mandating treatment and monitoring, and he was in a great deal of pain.

      Owens also contended that the Sheriff’s Department was deliberately

indifferent to his serious medical needs. Rather than adhering to the written

instructions they received when they signed Owens out of the hospital, the officers

released Owens, instructing him to sign his own bond, and dropped him off near an

interstate outside of a motel. Owens was barefoot, wearing bloodied clothing, and

was severely swollen and bruised. When he stepped out of the officer’s car, the

officer drove away. Owens was unable to secure a room at that motel, and, after

walking dazedly across the interstate, he was also denied entrance to a restaurant.

At that point, a city police officer picked him up and ordered a clerk at a Holiday

Inn to rent a room to Owens.

      Owens did not allege that Sheriff Harris was personally involved in these


                                          28
events. He did, however, allege that the deliberate indifference shown by the

officers was pursuant to an official policy of the Sheriff’s Department. Owens

claimed that the acts allegedly constituting deliberate indifference occurred when

the officers of the Sheriff’s Department dropped him on the side of the road

without administering the medical care the hospital had instructed them to deliver.

Owens also alleged that the officers released him in such a manner pursuant to a

“policy and custom of releasing sick or injured inmates.”

      Finally, Owens also alleged that, when he awoke alone on the day following

the assault, he was in a great deal of pain and had to be taken back to the hospital

in an ambulance. He also alleged that he had to be readmitted to the hospital

several days later and that he still experiences pain and limited mobility in his right

shoulder as well as uncontrollable shaking in his right arm.

             2. District Court’s Ruling

      The District Court dismissed Owens’ claim against Sheriff Harris for

deliberate indifference to serious medical need on the ground that she enjoyed

qualified immunity. The district court concluded that Owens did not “show that

the sheriff was personally involved in the acts or omissions that resulted in the

constitutional deprivation,” and that he therefore failed to establish a constitutional

violation. In order to overcome the defense of qualified immunity in a Section


                                          29
1983 claim for civil damages from a government official performing discretionary

functions, a plaintiff must show that the official has violated “clearly established

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

Harlow, 457 U.S. at 818 (1982). In assessing such Section 1983 claims, the

Supreme Court has recently stated that “a court must first determine whether the

plaintiff has alleged the deprivation of an actual constitutional right at all, and if so,

proceed to determine whether that right was clearly established at the time of the

alleged violation.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). See County of

Sacramento v. Lewis, 523 U.S. 833, 841, n. 5 (1998) (criticizing the district court

for granting summary judgment based on qualified immunity to a government

official in a Section 1983 case, without first deciding that a substantive due process

violation had taken place, on the ground that the law was not clearly established at

the time of the alleged violation); Siegart v. Gilley, 500 U.S. 226, 232 (1991)

(stating that “a necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is ‘clearly established’ at the time the

defendant acted is the determination of whether the plaintiff has asserted a

violation of a constitutional right at all,” and that courts should not “assum[e],

without deciding, this preliminary issue”).

      As noted above, this was a Rule 12(b)(6) dismissal. Therefore we look to


                                           30
the complaint to see if Owens has alleged the violation of a federal right. In order

to state a claim for a violation of rights under the Fourteenth Amendment,6 the

complaint must allege that Sheriff Harris was not merely negligent but that she

committed “acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs” and caused Owens to suffer harm. Estelle,

429 U.S. at 106; McElligot v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999). We

have defined a “serious medical need” as “one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Hill, 40 F.3d at

1187.

        The condition Owens alleges he was in when he was released by the

hospital into the care of the Sheriff’s Department qualifies at this initial stage of the

proceedings as a “serious medical need.” Moreover, by alleging that the officers of

the Sheriff’s Department failed to follow the instructions given to them at the

   6
     Owens was a pretrial detainee at the time of the alleged constitutional violations. “Eighth
Amendment prohibitions against cruel and unusual punishment do not apply to pretrial
detainees.” Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1539 n. 3 (11th Cir.1994) (en
banc) (citing Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-13 n. 40, 51
L.Ed.2d 711 (1977)). However, this Court has held that “in regard to providing pretrial
detainees with such basic necessities as food, living space, and medical care the minimum
standard allowed by the due process clause is the same as that allowed by the eighth amendment
for convicted persons.” Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994),
(quoting Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.1985); accord Tittle, 10 F.3d
at 1539; Edwards v. Gilbert, 867 F.2d 1271, 1274 (11th Cir.1989). Accordingly, we analyze
Owens’ claims under the same standard as applied to Marsh.

                                               31
hospital for caring for Owens’ medical needs, and instead left him barefoot by the

side of the road, Owens has alleged that they were deliberately indifferent to his

serious medical needs.

      In order to state a claim against Harris, however, Owens must do more than

allege that her employees were deliberately indifferent. Owens must allege

sufficient facts to adequately establish that Sheriff Harris’ was personally

responsible for her employees’ actions. The district court held that because the

Sheriff was not personally involved at the time of the deputy’s actions, she could

not be held personally liable. However, as this Court has previously held,

“[p]ersonal participation is only one of several ways to establish the requisite

causal connection. . . . An official may also be liable where a policy or custom

that [she] established or utilized results in deliberate indifference to an inmate’s

constitutional rights.” Zatler, 802 F.2d at 401 (internal citations omitted). Owens

did allege that the officers of the Sheriff’s Department acted pursuant to a “policy

and custom of releasing sick and injured inmates” when they acted with deliberate

indifference. Because Sheriff Harris is the final policy maker of Butler County

Jail, these allegations are sufficient to state a claim that she acted with deliberate

indifference to Owens’ serious medical needs.

      Because the complaint has alleged the necessary elements to demonstrate


                                           32
that Harris was deliberately indifferent to Owens’ serious medical needs, it has also

sufficiently alleged that Harris is not entitled to qualified immunity. As we noted

in Hill v. Dekalb Regional Youth Detention Center, “a finding of deliberate

indifference necessarily precludes a finding of qualified immunity; prison officials

who deliberately ignore the serious medical needs of inmates cannot claim that it

was not apparent to a reasonable person that such actions violated the law.” 40

F.3d 1176, 1186 (11th Cir. 1994) (quoting Hamilton v. Endell, 981 F.2d 1062,

1066 (9th Cir. 1992); see also Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.

1984), rev’d on other grounds, 475 U.S. 312 (1986).7


   7
       We note that in Hare v. City of Corinth, 135 F.3d 320, 327-28 (5th Cir. 1998), the Fifth
Circuit analyzed the qualified immunity claims in that case and did not decide whether the
plaintiff had established deliberate indifference. Hare was reviewing a denial of summary
judgment, and the court determined that the undisputed facts of the case revealed that the actions
taken by corrections officers were not unreasonable in the light of the circumstances and that
therefore the officers were entitled to qualified immunity. We also note, however, that under the
facts in Hare, the plaintiff would likewise not have met the test for deliberate indifference, as the
court concluded that officials had acted reasonably under the circumstances. “Whether one puts
it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found
liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845. The
Supreme Court has recognized that “[t]he infliction of pain in the course of a prison security
measure . . . does not amount to cruel and unusual punishment simply because it may appear in
retrospect that the degree of force authorized or applied for security purposes was unreasonable,
and hence unnecessary in the strict sense.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Thus a
finding that a plaintiff has alleged deliberate indifference sufficiently to survive a 12(b)(6)
motion to dismiss does not rule out the possibility that facts may later come to light indicating
that the defendant behaved reasonably in the circumstances and thus was not deliberately
indifferent. However, the Supreme Court has also held that deliberate indifference to prisoners’
serious medical needs constitutes the “unnecessary and wanton infliction of pain.” Estelle, 429
U.S. at 104. Once a court has found that a prison official has unnecessarily and wantonly
inflicted pain on inmates, it cannot find that conduct to be objectively reasonable. Although
facts may later come to light indicating that Harris behaved reasonably in the circumstances and

                                                 33
       Owens has also alleged sufficient facts to demonstrate that he was injured by

Harris’ deliberate indifference. When he awoke alone the day following the

assault, he was “in terrible pain” and had to be taken back to the hospital in an

ambulance. He returned to the hospital several days later for further treatment.

Because we find that Owens alleged sufficient facts to state a claim against Sheriff

Harris under Section 1983 for deliberate indifference to serious medical needs, we

conclude that the district court erred in dismissing the complaint under Rule

12(b)(6).

REVERSED and REMANDED for further proceedings in accordance herewith.




thus was not deliberately indifferent, the allegations in Owens’ complaint suffice to survive a
12(b)(6) motion to dismiss for failure to allege a cause of action and to dismiss on the grounds of
qualified immunity.

                                                34
