John Sabo v. Megan Erickson

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-3332

JOHN SABO,

Plaintiff-Appellant,

v.

MEGAN ERICKSON, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 20-CV-718 — William E. Duffin, Magistrate Judge.

____________________

ARGUED SEPTEMBER 10, 2024 — DECIDED JANUARY 31, 2025

____________________

Before SYKES, Chief Judge, and EASTERBROOK, BRENNAN,

SCUDDER, ST. EVE, KIRSCH, JACKSON-AKIWUMI, LEE, PRYOR,

KOLAR, and MALDONADO, Circuit Judges.

ST. EVE, Circuit Judge. A Wisconsin judge sentenced John

Sabo to a term of probation in excess of the maximum allow-

able under state law. Months after Sabo’s sentence should

have ended, he was arrested for a misdemeanor and then held

in county jail for violating the terms of his probation. After

2 No. 21-3332

more than four months of incarceration, Sabo discovered the

judicial error and secured his release.

Sabo now sues two employees of the Wisconsin Depart-

ment of Corrections’ Central Records Unit, Sheri Hicks and

Debra Haley. Hicks and Haley were responsible for reviewing

judgments of conviction to ensure compliance with Wisconsin

law. For over a year, they reviewed sentences, including

Sabo’s, under an incorrect standard. Upon discovering their

mistake, they did not take corrective action. Invoking 42

U.S.C. § 1983, Sabo alleges that their failure to act evinced de-

liberate indifference to his Eighth Amendment rights and

seeks damages.

The district court granted Hicks and Haley’s motion to

dismiss, finding that Sabo failed to state a claim that they were

deliberately indifferent to his Eighth Amendment rights. We

affirm on other grounds. Because Sabo did not allege the vio-

lation of a clearly established constitutional right, Hicks and

Haley are entitled to qualified immunity as a matter of law.

I. Background

A. Factual Background

On December 21, 2017, John Sabo was arrested and

charged with resisting or obstructing a police officer, a misde-

meanor. Because the arrest violated the terms of Sabo’s pro-

bation, his probation agent initiated revocation proceedings.

She also instructed the county jail to hold him in custody for

the pendency of those proceedings.

But Sabo should not have been incarcerated for a proba-

tion violation—because he should not have been on proba-

tion. In 2004, Sabo was convicted of driving while under the

influence, a Class H felony. The court stayed his sentence

No. 21-3332 3

while he served time for other offenses and imposed a five-

year probationary term. The maximum allowable term of pro-

bation for a Class H felony at the time was three years, how-

ever, not five. Had Sabo’s sentencing judge adhered to the

statutory maximum, his probation would have ended by July

17, 2017, months prior to his misdemeanor arrest.

More than 10 years earlier, the Wisconsin legislature antic-

ipated the possibility that judges could make errors when im-

posing terms of probation. In the early 2000s, it enacted a pro-

vision addressing the legal effect of a probation sentencing er-

ror. The law clarified that “[i]f a court imposes a term of pro-

bation in excess of the maximum authorized by statute, the

excess is void . . . . [t]he term is commuted without further

proceedings.” Wis. Stat. § 973.09(2m) (2003).

Relying upon this statute, the Wisconsin Department of

Corrections’ Central Records Bureau acted as a check on pro-

bation sentencing errors. In the years surrounding Sabo’s fel-

ony conviction, the Bureau charged Hicks and Haley with re-

viewing every judgment of conviction imposing a term of

probation, approximately 800 each week. When they found

an unlawfully long probation sentence, they corrected it and

notified the probationer’s supervising agent.

Yet in 2004 and early 2005, Hicks and Haley reviewed pro-

bation terms using the wrong standard. The judicial error in

Sabo’s sentence, which had already escaped the notice of his

attorney and his sentencing judge, crossed their desks uncor-

rected. It was not until mid-2005 that Hicks and Haley real-

ized they had misunderstood the relevant law.

In Sabo’s telling, which we accept as true at this stage in

the proceedings, Hicks and Haley made no effort to correct

4 No. 21-3332

their mistake. They did not inform their supervisor or Wis-

consin probation agents of the error. And they did not attempt

to re-check the tens of thousands of judgments of conviction

they had reviewed under the wrong standard. Sabo does not

allege, however, that Hicks and Haley knew his particular

sentence was unlawfully long.

The erroneous probation term had significant conse-

quences for Sabo. He was jailed for 134 days and served an

extra five months of probation. Ultimately, Sabo discovered

the sentencing error that so many others had missed by

browsing a book in the jail law library. He contacted his attor-

ney, who petitioned the court to correct his sentence. On May

3, 2018, Sabo’s sentencing judge amended his judgment of

conviction with the correct probation term, and Sabo was re-

leased from jail. This action followed.

B. Procedural Background

In May 2020, Sabo filed suit, raising both constitutional

and state law claims. Relevant to this appeal, he alleged that

Hicks and Haley’s failure to take corrective action after dis-

covering their error was deliberately indifferent to his Eighth

Amendment rights and sought monetary relief under § 1983.

Hicks and Haley moved to dismiss Sabo’s complaint. The

district court granted their motion, holding that Sabo had not

stated a claim that they acted with deliberate indifference be-

cause they had not known that Sabo’s judgment of conviction

contained an unlawfully long term of probation.

A divided panel of our court reversed the district court’s

judgment. The panel held that Sabo had stated an Eighth

Amendment claim. It also found that Hicks and Haley were

No. 21-3332 5

not entitled to qualified immunity. We vacated the panel’s

opinion and voted to rehear the case en banc. 1

II. Standard of Review

To defeat a motion to dismiss, a plaintiff must “state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Fed. R. Civ. P. 8(a)(2). Plaintiffs need not “re-

cite every detail related to their allegations.” Roldan v. Stroud,

52 F.4th 335, 339 (7th Cir. 2022). Nor must the complaint an-

ticipate affirmative defenses or attempt to rebut them. Rich-

ards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Nevertheless,

accepting all well-pleaded facts as true, a plaintiff must allege

enough “to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555.

In addition to making out a prima facie claim, a plaintiff

suing state officers for monetary damages under § 1983 faces

an additional hurdle at the motion to dismiss stage. The Su-

preme Court has made clear that a plaintiff must “plead[]

facts showing (1) that the official violated a statutory or con-

stitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011); see also Wood v. Moss, 572 U.S. 744, 757

(2014). Simply put, a plaintiff can plead himself out of court

1 Sabo also sued his probation agents, Megan Erickson and Barb Han-

son. The district court granted summary judgment in their favor. On ap-

peal, the panel unanimously affirmed the district court’s judgment. See

Sabo v. Erickson, 100 F.4th 880, 891–92 (7th Cir. 2024). We granted rehearing

en banc solely on the issue of Hicks and Haley’s liability, so we now rein-

state the panel opinion to the extent that it affirmed the district court and

resolved Sabo’s claims against Erickson and Hanson.

6 No. 21-3332

on qualified immunity grounds. See Mitchell v. Forsyth, 472

U.S. 511, 526 (1985) (“Unless the plaintiff’s allegations state a

claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before

the commencement of discovery.”); see also Fosnight v. Jones,

41 F.4th 916, 924 (7th Cir. 2022) (affirming the district court’s

grant of the defendant’s motion to dismiss on qualified im-

munity grounds); Ewell v. Toney, 853 F.3d 911, 920 (7th Cir.

2017) (same); Chasensky v. Walker, 740 F.3d 1088, 1098 (7th Cir.

2014) (reversing the district court’s denial of the defendant’s

motion to dismiss on qualified immunity grounds); Harrell v.

Cook, 169 F.3d 428, 432–33 (7th Cir. 1999) (same).

Examining whether defendants are entitled to qualified

immunity upon a motion to dismiss also comports with the

Supreme Court’s directive to resolve immunity questions “at

the earliest possible stage in litigation,” Pearson v. Callahan,

555 U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S. 224,

227 (1991)), because qualified immunity protects government

officials from both litigation and liability, see Behrens v. Pelle-

tier, 516 U.S. 299, 305–06 (1996).

So, dismissal of a plaintiff’s complaint on qualified im-

munity grounds is appropriate if, taking the facts alleged in

the light most favorable to the plaintiff, the defendant is enti-

tled to qualified immunity as a matter of law. 2 See Campbell v.

Kallas, 936 F.3d 536, 549 (7th Cir. 2019). In such circumstances,

2 When a qualified immunity defense “closely depends” on factual

determinations, dismissal under Rule 12(b)(6) is inappropriate. Reed v.

Palmer, 906 F.3d 540, 548 (7th Cir. 2018); see also Sause v. Bauer, 585 U.S. 957,

960 (2018) (reversing the grant of qualified immunity on a Rule 12(b)(6)

motion because factual issues precluded resolution of the question).

No. 21-3332 7

the plaintiff may state a claim, but it is not one “upon which

relief can be granted.” Reed v. Palmer, 906 F.3d 540, 548 (7th

Cir. 2018) (quoting Jacobs v. City of Chicago, 215 F.3d 758, 765

n.3 (7th Cir. 2000)).

Accepting all well-pleaded facts as true and drawing all

inferences in Sabo’s favor, we review the district court’s dis-

missal of his complaint de novo. Reed, 906 F.3d at 546.

III. Discussion

Qualified immunity shields a government official from

suit for damages under § 1983 “when she makes a decision

that, even if constitutionally deficient, reasonably misappre-

hends the law governing the circumstances she confronted.”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Taylor v. Riojas, 592

U.S. 7, 8 (2020); see also Ziglar v. Abbasi, 582 U.S. 120, 151 (2017)

(“Whether qualified immunity can be invoked turns on the

objective legal reasonableness of the official’s acts.” (internal

quotation omitted)).

The doctrine “balances two important interests—the need

to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harass-

ment, distraction, and liability when they perform their duties

reasonably.” Pearson, 555 U.S. at 231. By guarding against “the

disruption that could result from fear of liability or insubstan-

tial lawsuits, qualified immunity ‘acts to safeguard govern-

ment, and thereby to protect the public at large.’” Jones v.

Clark, 630 F.3d 677, 685 (7th Cir. 2011) (quoting Wyatt v. Cole,

504 U.S. 158, 168 (1992)).

To overcome a qualified immunity defense, plaintiffs must

show “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time

8 No. 21-3332

of the challenged conduct.” al-Kidd, 563 U.S. at 735 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts may ex-

ercise their discretion when choosing which element to ad-

dress first. Pearson, 555 U.S. at 236; see also Strand v. Minchuk,

910 F.3d 909, 914 (7th Cir. 2018).

The second element of the qualified immunity inquiry—

whether existing law clearly established the right Sabo alleges

Hicks and Haley violated—decides this appeal. Accordingly,

we begin and end our analysis there. See Lovett v. Herbert, 907

F.3d 986, 991–92 (7th Cir. 2018).

A. Qualified Immunity and Clearly Established Law

A constitutional or statutory right is “clearly established”

when the law is “‘sufficiently clear’ that every ‘reasonable of-

ficial would understand that what he is doing’ is unlawful.”

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting al-

Kidd, 563 U.S. at 741). In other words, to clearly establish a

right, existing precedent must place the constitutional or stat-

utory question “beyond debate.” Kisela v. Hughes, 584 U.S.

100, 104 (2018) (quoting White v. Pauly, 580 U.S. 73, 79 (2017));

see also Lopez v. Sheriff of Cook Cnty., 993 F.3d 981, 988 (7th Cir.

2021) (describing the “clearly established” requirement as a

“high bar”).

The Supreme Court has repeatedly instructed us “not to

define clearly established law at too high a level of general-

ity.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021); see also City

of Escondido v. Emmons, 586 U.S. 38, 42 (2019); Kisela, 584 U.S.

at 104; City & County of San Francisco v. Sheehan, 575 U.S. 600,

613 (2015); al-Kidd, 563 U.S. at 742.

Describing relevant precedent abstractly evades “the cru-

cial question” at the core of any qualified immunity analysis:

No. 21-3332 9

“whether the official acted reasonably in the particular circum-

stances that he or she faced.” Plumhoff v. Rickard, 572 U.S. 765,

779 (2014) (emphasis added); see also Viilo v. Eyre, 547 F.3d 707,

710 (7th Cir. 2008) (“[A] right must be specific to the relevant

factual context … and not generalized with respect to the

Amendment that is the basis of the claim.”). Litigants and

courts formulate rules of law too generally “if the unlawful-

ness of the officer’s conduct ‘does not follow immediately

from the conclusion that [the rule] was firmly established.’”

Wesby, 583 U.S. at 64 (alteration in original) (quoting Anderson

v. Creighton, 483 U.S. 635, 641 (1987)).

To be sure, existing precedent need not be “directly on

point” to clearly establish an alleged right. Kisela, 584 U.S. at

104 (internal quotation omitted). In truly egregious cases, a

more general rule “may apply with obvious clarity to the spe-

cific conduct in question.” Riojas, 592 U.S. at 9 (quoting Hope

v. Pelzer, 536 U.S. 730, 741 (2002)); see also Stockton v. Milwaukee

County, 44 F. 4th 605, 620–21 (7th Cir. 2022). 3

But where the reasonableness of an officer’s actions de-

pends on the circumstances, as it does here, plaintiffs must

define clearly established law with much more specificity. Cf.

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (observing that specific-

ity is “especially important” in Fourth Amendment cases

3 In Riojas, the Supreme Court found that “any reasonable officer”

should have known that confining an inmate to a frigid, feces-covered cell

for days violated his right to be free from punishment inflicted via expo-

sure to “wantonly degrading and dangerous situations.” 592 U.S. at 9 (in-

ternal quotation omitted). Similarly, our court found in Stockton that it

“strain[ed] credulity” to think the defendant, “or any reasonable officer,”

could believe he acted lawfully when intentionally causing an inmate in

medical distress to fall and hit his head. 44 F.4th at 621.

10 No. 21-3332

because reasonable conduct depends on “the factual situation

the officer confronts”) (internal quotation omitted); Saucier v.

Katz, 533 U.S. 194, 202–03, (2001) (instructing courts to con-

sider whether the facts presented are “distinguishable in a fair

way” from prior precedent).

The dissent objects that Mullenix, a Fourth Amendment

case, has little to say in the Eighth Amendment context. This

misstates the law. The Supreme Court has explained that

qualified immunity’s “clearly established” requirement pro-

tects “officials accused of violating ‘extremely abstract

rights.’” Ziglar, 582 U.S. at 151 (quoting Anderson, 483 U.S. at

639). So, where a plaintiff alleges the violation of an abstract

right, as Sabo has done here, “[t]he Fourth Amendment pro-

vides an example of how qualified immunity functions.” Id.

Moreover, our court does not break new ground when de-

fining clearly established Eighth Amendment law with speci-

ficity. The Supreme Court, too, has demanded factual partic-

ularity in the Eighth Amendment context. See Taylor v. Barkes,

575 U.S. 822, 825–26 (2015) (unanimously rejecting the exist-

ence of a clearly established right “to the proper implementa-

tion of adequate suicide prevention protocols” where “[n]o

decision of this Court even discusses suicide screening”).

In short, qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley

v. Briggs, 475 U.S. 335, 341 (1986). To determine whether

clearly established law prohibited the defendant’s conduct,

we must frame the asserted right “in terms granular enough

to provide fair notice." Kallas, 936 F.3d at 546 (citing Kisela, 584

U.S. at 104). Heeding these instructions, we turn to Sabo’s

claim and the right he alleges Hicks and Haley violated.

No. 21-3332 11

B. Sabo’s Eighth Amendment Claim

Section 1983 grants any person within the jurisdiction of

the United States a private right of action against “any other

person who, acting ‘under color of’ state law, has deprived

them of ‘any rights, privileges, or immunities secured by the

Constitution and laws’ of the United States.” Health & Hosp.

Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 175 (2023) (quot-

ing 42 U.S.C. § 1983). The statute, on its own, does not confer

substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994).

Instead, § 1983 provides a means of enforcing federal rights

conferred elsewhere. Id. The elements of a § 1983 claim, then,

depend upon the underlying right the plaintiff alleges was vi-

olated. See Manuel v. City of Joliet, 580 U.S. 357, 370 (2017).

Here, Sabo alleges a breach of the Eighth Amendment’s cruel

and unusual punishments clause.

The Supreme Court has long recognized that the protec-

tions of the Eighth Amendment extend beyond the prohibi-

tion of “physically barbarous punishments.” See Estelle v.

Gamble, 429 U.S. 97, 102 (1976); Farmer v. Brennan, 511 U.S. 825,

832 (1994); Erickson v. Pardus, 551 U.S. 89, 90 (2007). A correc-

tion official’s “‘deliberate indifference’ to a substantial risk of

serious harm to an inmate violates the Eighth Amendment.”

Farmer, 511 U.S. at 828. Indeed, “when the State … so restrains

an individual’s liberty that it renders him unable to care for

himself, and at the same time fails to provide for his basic hu-

man needs—e.g., food, clothing, shelter, medical care, and

reasonable safety—it transgresses … the Eighth Amend-

ment.” DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489

U.S. 189, 200 (1989) (citing Estelle, 429 U.S. at 103–04).

In Campbell v. Peters, our court imported the deliberate in-

difference standard into cases where plaintiffs alleged that

12 No. 21-3332

correction officials incarcerated them beyond the term of their

sentence. See 256 F.3d 695, 700 (7th Cir. 2001). We remarked

that “[a]t a general level,” unlawfully extended incarceration,

if “the product of deliberate indifference,” could violate the

Eighth Amendment. Id. Our court has subsequently reaf-

firmed that precept. See Figgs v. Dawson, 829 F.3d 895, 902 (7th

Cir. 2016) (“Incarceration beyond the date when a person is

entitled to be released violates the Eighth Amendment if it is

the product of deliberate indifference.”); Wells v. Caudill, 967

F.3d 598, 602 (7th Cir. 2020).

Sabo relies upon these general principles to contend that

Hicks and Haley violated clearly established law when they

did not take corrective action after discovering they had re-

viewed thousands of judgments of conviction, including

Sabo’s, under an erroneous probation standard. 4

When we compare the precedent Sabo cites in support of

this allegation against the facts of his case, three crucial differ-

ences immediately surface. These differences preclude a find-

ing that the alleged unlawfulness of Hicks and Haley’s con-

duct “follow[s] immediately” from clearly established law.

See Wesby, 583 U.S. at 64. 5

4 Sabo concedes that Hicks and Haley’s initial failure to identify Sabo’s

unlawfully long term of probation was the product of negligence, not de-

liberate indifference, and therefore cannot support an Eighth Amendment

claim. See Wells, 967 F.3d at 601 (holding allegations of “simple error, neg-

ligence, or even gross negligence” are insufficient to support claims under

the Eighth Amendment (citing Farmer, 511 U.S. at 835–36)).

5 These facts are all established by Sabo’s complaint. So, we may, in-

deed, must, consider them upon a motion to dismiss.

No. 21-3332 13

First, Hicks and Haley lacked notice of Sabo’s erroneous

sentence. Sabo’s attorney never brought the error to their at-

tention. Nor did a corrections staff member, probation agent,

court official, or anyone else. Yet, notice to the defendants was

the linchpin of our court’s decision in Figgs.

While out on bond for an unrelated drug charge, Figgs

committed a murder. After he pleaded guilty to the drug of-

fense and was convicted of the murder, correctional officers

erroneously marked the murder as a violation of his manda-

tory supervised release for the drug offense. Figgs, 829 F.3d at

898. The error triggered an additional two years of imprison-

ment—delaying Figgs’s calculated release date from January

11, 2011, to November 3, 2013. Id. at 899, 901.

Over the course of nearly eighteen months, Figgs repeat-

edly and forcefully contested the calculation of his release

date. He submitted inmate request slips, filed formal griev-

ances, and sought habeas relief, all to no avail. Id. at 899–901.

The correctional officer responsible for calculating and re-

viewing inmates’ release dates knew of Figgs’s complaints

but did nothing to investigate their substance. Id.

On these facts, we held “the failure to investigate a claim

that an inmate is being held longer than the lawful term of his

sentence violates the Eighth Amendment if it is the result of

indifference.” Id. at 906. It does not immediately follow from

this holding, however, that a records officer who has no notice

of or contact with an affected inmate can be held personally

liable for a constitutional violation.

Other cases cited by Sabo are similarly unavailing. In

every cited excessive incarceration case, the defendants had

notice of the affected plaintiff. See Peters, 256 F.3d at 698

14 No. 21-3332

(alleging prison officials intentionally revoked the plaintiff’s

good conduct credits); Alexander v. Perrill, 916 F.2d 1392, 1398

(9th Cir. 1990) (alleging defendants failed to investigate the

plaintiff’s claim that his release date was incorrect); Sample v.

Diecks, 885 F.2d 1099, 1104 (3d Cir. 1989) (same); Haygood v.

Younger, 769 F.2d 1350, 1355 (9th Cir. 1985) (same).

Second, Hicks and Haley were not the source of the error

that injured Sabo. The error derived from an unlawfully long

term of probation imposed by his sentencing judge.

Our legal system divides responsibility between judges,

who impose sentences of probation and imprisonment, and

correctional officers, who administer those sentences. See Bel-

leau v. Wall, 811 F.3d 929, 942 (7th Cir. 2016) (Flaum, J., con-

curring in the judgment) (observing that the Wisconsin De-

partment of Corrections “traditionally executes criminal sen-

tences”). Among the administrative tasks assigned to correc-

tions departments is the calculation of inmate release dates.

These calculations are essential to the fair administration of

justice.

We have found that a correctional officer’s deliberate in-

difference to an error in these calculations may violate an in-

mate’s Eighth Amendment rights. See Figgs, 829 F.3d at 904–

06. But we have never imputed liability for a sentencing

judge’s error to a corrections officer. For good reason. State

courts enter judgments, not correctional officers. And con-

flicts between state law and judgments of conviction place

correctional officers, who are not trained lawyers, in a precar-

ious position. Cf. Francis v. Fiacco, 942 F.3d 126, 151 (2d Cir.

2019) (granting qualified immunity to correctional officers

charged with an Eighth Amendment violation after they

No. 21-3332 15

complied with state law, rather than a conflicting and unlaw-

fully lenient sentence).

In every case cited by Sabo, plaintiffs alleged that the de-

fendant correctional officers were deliberately indifferent to

errors the corrections department itself made in the execution

of their sentences. See Peters, 256 F.3d at 700–01 (alleging

prison officials required him “to serve more time than state

law and his sentence required” (emphasis added)); Alexander,

916 F.2d at 1399 (alleging correctional officers miscalculated

his foreign jail time credits); Sample, 885 F.2d at 1104 (alleging

correctional officers incorrectly calculated his release date);

Haygood, 769 F.2d at 1355 (alleging correctional officers erro-

neously required him to serve his sentence consecutive to an-

other sentence, rather than concurrently).

Holding Hicks and Haley liable for not correcting a judicial

error would require an expansion of our precedent. 6 We

therefore reject the contention that existing law clearly estab-

lishes that prison officials violate the Eighth Amendment

when they do not intervene to correct a sentencing judge’s er-

ror.

Third, the error within Sabo’s judgment of conviction sen-

tenced him to an unlawfully long term of probation, not in-

carceration.

6 The dissent asserts that the aforementioned cases clearly establish

that any officer with the “ability to rectify” an alleged injury must do so,

regardless of that injury’s source. But no case from our court, or any other,

supports holding an officer liable for an error made by an individual out-

side of that officer’s supervisory purview, much less outside of the execu-

tive branch, altogether.

16 No. 21-3332

In previous cases, the defendants acted with deliberate in-

difference to the risk that the plaintiff was unlawfully incar-

cerated. Here, the risk was a level removed. Hicks and Haley

knew that among the tens of thousands of sentences they re-

viewed, some probationers may serve an unlawfully long

term of probation. But those affected would only face unlaw-

ful imprisonment if they violated a term of their probation and

the state pursued that violation.

True, probation is a form of custody. Hankins v. Lowe, 786

F.3d 603, 605 (7th Cir. 2015). We do not suggest that sentenc-

ing a defendant to an excessive term of probation is anything

less than serious. Nevertheless, we frame our qualified im-

munity inquiry with granularity so as to provide fair notice.

Correctional officers are not lawyers, and “[i]t is sometimes

difficult for an officer to determine how the relevant legal doc-

trine … will apply to the factual situation the officer con-

fronts.” Saucier, 533 U.S. at 205. We cannot say, then, that all

but the “plainly incompetent” would deduce from existing

law that constitutional liability extends to records keepers

who show deliberate indifference to an excessive term of pro-

bation. Malley, 475 U.S. at 341.

With these differences in mind, we conclude that existing

precedent is not so clear that “every reasonable official would

interpret it to establish the particular rule the plaintiff seeks to

apply.” Wesby, 583 U.S. at 63. As such, Hicks and Haley are

entitled to qualified immunity as a matter of law.

IV. Conclusion

For the reasons stated in this opinion, the judgment of the

district court is

AFFIRMED.

No. 21-3332 17

EASTERBROOK, Circuit Judge, with whom Chief Judge SYKES

and Circuit Judges SCUDDER and KIRSCH join, concurring.

Sabo’s sentence specified a term of probation longer than Wis-

consin’s law allows. He did not appeal. While on probation,

he was charged with violating the conditions of release and

returned to custody. Before that charge could be adjudicated,

the sentencing judge corrected the error (acting immediately

after Sabo’s attorney called the issue to judicial attention), and

Sabo was freed. Later he sued four state officials who did not

detect and rectify the judicial error earlier—and our panel

held that he may be entitled to damages from two of these

four.

I agree with my colleagues that qualified immunity pro-

tects the defendants from personal liability. Indeed, these of-

ficials did not violate the Constitution in the first place. The

Constitution does not require personnel outside the judiciary

to seek, find, and fix judicial errors. See Hernandez v. Sheahan,

455 F.3d 772 (7th Cir. 2006). The Supreme Court has never

held that civil-service employees must second-guess judges’

decisions about the length of custody. Instead the Court has

held that the “judicial Power” is one to make decisions that

are not subject to review and revision by other branches. Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995). I do not

see how the Constitution that requires federal administrative

officials to implement federal judges’ decisions can make

state administrative officials liable for implementing state

judges’ decisions.

States may empower their administrative officials to coun-

termand the decisions of state judges, and Wisconsin may

have done this with respect to the duration of probation. Wis.

Stat. §973.09(2m). Defendants may have failed to carry out

18 No. 21-3332

their duties under this statute. But it is black letter law that

the Constitution does not require state employees to imple-

ment state rules correctly. As far as the Constitution is con-

cerned, state administrative officials are not required to

amend decisions of state judges.

I am willing to suppose that defendants’ inattention to the

risk of judicial error deserves the label “deliberate indiffer-

ence.” For constitutional purposes deliberate indifference

equates to criminal recklessness, see Farmer v. Brennan, 511

U.S. 825, 835–40 (1994), and the Justices deem criminal reck-

lessness close enough to purpose or knowledge to be treated

the same way as those forms of intent. See also United States

v. United States Gypsum Co., 438 U.S. 422, 443–46 (1978) (dis-

cussing the varieties of “intent” used in criminal law). Yet bad

intent is not by itself a constitutional violation. No one is liable

for recklessness (or purpose, or knowledge). Instead one is li-

able for an improper act or culpable omission committed with

a specified mental state. Implementing a judicial decision is

neither forbidden nor culpable, as far as the Constitution is

concerned.

At oral argument counsel observed that Malley v. Briggs,

475 U.S. 335 (1986), allows someone who executes an invalid

warrant to be held liable, if the error is so clear that only an

incompetent or wicked person could fail to see it. Id. at 341.

Search and arrest warrants, unlike criminal judgments, are

not the result of adversarial presentations and cannot be ap-

pealed. A warrant is not the sort of “judgment” that prevents

administrative officials from acting independently. Trooper

Malley would not have violated any legal rule had he re-

frained from entering Briggs’s home. Liability under Malley

falls on the police who invade the suspect’s privacy—or, in

No. 21-3332 19

Malley itself, on the officer whose affidavit led to the war-

rant—not on a clerk who failed to catch the warrant’s invalid-

ity. Malley does not support Sabo. The judgment that affected

him could have been appealed, and that was his proper

means of redress.

Counsel also pointed to medical-maltreatment and

failure-to-protect cases under the Eighth Amendment, see

Farmer, but that kind of liability does not arise from enforcing

judicial orders. If, say, a judge orders a prison to medicate a

prisoner to make him competent for trial, officials are not

liable in damages for implementing that order, even if it is

invalid, as it may well be. See Sell v. United States, 539 U.S. 166

(2003). The remedy is by appeal rather than a suit for damages

against the physicians who administered the judicially

ordered drugs.

To say that a violation of state law with deliberate indif-

ference violates the Constitution is to say that an intentional

violation of state law violates the Constitution. (If under

Farmer deliberate indifference is the lowest tier of intent, the

greater tiers—purpose and knowledge—must be equally bad

or worse.) Yet the Supreme Court repeatedly declares that a

violation of state law violates only state law, not the Constitu-

tion. See, e.g., Snowden v. Hughes, 321 U.S. 1, 11 (1944); Davis

v. Scherer, 468 U.S. 183, 192–96 (1984); Nordlinger v. Hahn, 505

U.S. 1, 16 n.8 (1992). Accord, United States v. Caceres, 440 U.S.

741 (1979) (same with a violation of a federal statute or regu-

lation). See also, e.g., Archie v. Racine, 847 F.2d 1211, 1215–18

(7th Cir. 1988) (en banc); Thiele v. Illinois State University, 35

F.4th 1064 (7th Cir. 2022).

Consider Castle Rock v. Gonzales, 545 U.S. 748 (2005). A

state court issued a restraining order. Colorado law requires

20 No. 21-3332

the police to enforce such orders. Plaintiff alleged that they

intentionally refused to do so, leaving children defenseless

against their murderous father. The Tenth Circuit held that

deliberate (purposeful) non-enforcement, in violation of state

law, deprived the order’s beneficiaries (the children and their

mother) of “property” and so violated the Constitution. The

Justices reversed, holding that constitutional rights depend

on federal rather than state statutes or judicial orders. They

added that, even if Colorado law were understood to create a

personal right to enforcement of protective orders, that would

not permit a federal court to bootstrap the state-law violation

into a constitutional violation. Id. at 763–67. I do not see how

Sabo has a better constitutional theory than the one rejected

in Castle Rock.

Or consider Virginia v. Moore, 553 U.S. 164 (2008). Virginia

law requires police to issue a citation, rather than make a cus-

todial arrest, for the misdemeanor of driving on a suspended

license. Police officers stopped Moore for driving on a sus-

pended license and arrested him so that they could search

him. They found drugs, for which Moore was prosecuted. The

Supreme Court of Virginia held that, by making a custodial

arrest (unquestionably a purposeful step), the police had vio-

lated the Constitution. (That was an essential holding, be-

cause Virginia does not use the exclusionary rule to enforce

state law.) Again the Supreme Court reversed, holding that a

violation of state law is no more than a violation of state law.

The Justices expressed concern in Moore that treating a state-

law protection as a constitutional rule would do little but en-

courage the state to repeal any protections of liberty that go

beyond the Constitution. Apart from all concerns about the

wisdom of enforcing state law through the Constitution, the

Court observed that these are different documents, with

No. 21-3332 21

different texts, histories, and requirements. For custodial ar-

rest the constitutional requirement is probable cause, unaf-

fected by how state law directs the police to proceed.

I’m not aware of any case in which the Supreme Court has

held that an intentional violation of state law violates the Con-

stitution, when the same conduct would satisfy constitutional

norms if state law were different. So if Wis. Stat. §973.09(2m)

had been repealed in 2016 and replaced by a statute providing

that administrative employees must implement all judicial

decisions as written, there could not be a plausible constitu-

tional claim against any of our defendants. This shows that

only a (potential) violation of state law is at stake in this suit.

See Gordon v. Degelmann, 29 F.3d 295, 300–01 (7th Cir. 1994).

The panel relied on Figgs v. Dawson, 829 F.3d 895 (7th Cir.

2016), which addresses a separate issue: whether state admin-

istrative officials can be liable for holding a prisoner in cus-

tody longer than authorized by the judgment of conviction.

The prisoner in Figgs took the judgment as a given and

blamed the defendants for miscounting good-time credits and

other statutory discounts, such as credits from other sen-

tences. Lots of decisions similarly find a problem under the

Due Process Clause or the Cruel and Unusual Punishments

Clause when, with intent (purpose, knowledge, or deliberate

indifference), an administrative official subjects a person to

longer custody than a judgment approves. It is quite some-

thing else to see a constitutional violation in holding a person

for the duration of a judgment that has not been reversed or

modified.

When a judgment is defective, any plausible constitutional

claim would be against state judges, who have absolute im-

munity. Sabo may have a claim under state law against the

22 No. 21-3332

administrative officials, but state-law duties cannot be en-

forced against states and their officials through awards of

damages under §1983. See Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 97–123 (1984); Will v. Michigan Depart-

ment of State Police, 491 U.S. 58 (1989). The claim against the

four defendants in this suit, which depends entirely on §1983,

fails under Pennhurst and Will. As far as constitutional law is

concerned, the way to deal with an error in a judgment is to

ask the judge to fix the problem and to appeal if the judge re-

fuses, not to collect damages from administrative employees

who take the judgment as a given.

No. 21-3332 23

LEE, Circuit Judge, joined by PRYOR, Circuit Judge, concur-

ring. I agree with the majority opinion that Sheri Hicks and

Debra Haley are entitled to qualified immunity as a matter of

law. In my view, the rather atypical provision of Wisconsin

law that appears to allow correctional officers to correct errors

made by the sentencing judge in certain circumstances, see

Wis. Stat. § 973.09(2m) (2003), is what makes this case materi-

ally different from our prior cases in this area. See, e.g., Camp-

bell v. Peters, 256 F.3d 695 (7th Cir. 2001); Figgs v. Dawson, 829

F.3d 895 (7th Cir. 2016). But I do not believe the same can be

said for the other two factors upon which the majority opin-

ion relies—that Hicks and Haley lacked notice of the error af-

fecting John Sabo’s sentence and that the error extended

Sabo’s probation rather than incarceration.

First, the majority opinion states that Hicks and Haley

“lacked notice of Sabo’s erroneous sentence.” But, Sabo’s

complaint alleges that Haley and Hicks learned that an error

had unlawfully extended the probation terms of a large group

of inmates. Thus, I take the majority opinion to mean that our

prior cases have not clearly established what a correctional of-

ficer must do when she is confronted with a sentencing error

affecting a large group, rather than a particular individual.

With this I agree. However, to the extent that the majority

opinion can be read to suggest that the source of the infor-

mation matters (whether it came from other correctional staff,

Sabo’s attorney, or Sabo himself), such an interpretation

would be incorrect. How Haley and Hicks obtained this

knowledge has little to do with the extent of their knowledge.

The Eighth Amendment deliberate indifference inquiry is fo-

cused on the latter, not the former. Farmer v. Brennan, 511 U.S.

825, 842 (1994) (deliberate indifference requires “a showing

that the official was subjectively aware of the risk”).

24 No. 21-3332

Second, as the dissenting opinion explains, we have con-

sistently maintained that probation and parole, like incarcer-

ation, are forms of custody for constitutional purposes. And

Hankins v. Lowe establishes that “a state officer who unlaw-

fully keeps a person in custody beyond the date at which he

… is entitled to be released imposes a form of cruel and unu-

sual punishment, and thus violates the Eighth Amendment.”

786 F.3d 603, 605 (7th Cir. 2015).

No. 21-3332 25

JACKSON-AKIWUMI, Circuit Judge, joined by MALDONADO,

Circuit Judge, dissenting. The Civil Rights Act of 1871, codified

at 42 U.S.C. § 1983, provides a “broadly construed” remedy

against a state official’s violation of federally protected rights.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 700–01 (1978). The

law “opened the federal courts to private citizens, offering a

uniquely federal remedy against incursions under the

claimed authority of state law upon rights secured by the

Constitution and laws of the Nation.” Mitchum v. Foster,

407 U.S. 225, 239 (1972).

My colleagues in the majority seek to constrain this rem-

edy with an overly restrictive interpretation of what must be

done to overcome qualified immunity. The majority would ef-

fectively require litigants—at the pleadings stage, no less—to

establish not just that they seek to enforce a clearly established

right but that the right has an almost perfect analog in existing

case law. Here, that means that even though John Sabo was

unlawfully held in custody and even incarcerated as a result,

he cannot ask a factfinder to hold the responsible officials ac-

countable. I cannot agree with such a narrow gateway for

§ 1983 litigants (or, conversely, such a wide window for de-

fendants to avoid the specter of liability), so I dissent.

In Part I, I counter the majority’s view of what plaintiffs

must do to overcome the defense of qualified immunity, and

I emphasize the low bar for plaintiffs to state a claim for relief.

In Part II, I explain why the differences between this case and

our existing precedents are slight ones that do not warrant

granting Wisconsin state officials Sheri Hicks and Debra Ha-

ley qualified immunity at this juncture.

26 No. 21-3332

I.

To establish the affirmative defense of qualified immunity,

defendants must demonstrate either that they did not violate

a constitutional right or that the right was not clearly estab-

lished at the time of the violation. Taylor v. Barkes, 575 U.S. 822,

824–825 (2015). For a right to be clearly established, a previous

case “directly on point” is not required, id. at 825, though

there must be a decision in a case similar enough to the case

before the court that the defendants would have “fair notice”

that they are acting unconstitutionally. Hope v. Pelzer, 536 U.S.

730, 739 (2002).

Today the majority concludes that Sabo, as plaintiff, needs

to cite clearly established law “with much more specificity”

than usual to show that qualified immunity does not apply.

Ante, at 9. Precedent does not support this conclusion. The

majority relies on Mullenix v. Luna, in which the Supreme

Court observed that Fourth Amendment cases are so particu-

larly fact-dependent that specificity is “especially important.”

577 U.S. 7, 12 (2015). The Mullenix Court did not, as the ma-

jority suggests, impose a heightened standard for plaintiffs to

overcome qualified immunity, let alone in an Eighth Amend-

ment case. In support of this heightened standard, the major-

ity also cites Ziglar v. Abbasi—again outside the Eighth

Amendment context—in which the Supreme Court imported

from Mullenix a need for factual specificity “with respect to

abstract rights” when defining clearly established law.

582 U.S. 120, 151 (2017). Sabo’s asserted right is far from ab-

stract. The right not to be held in state custody for an

No. 21-3332 27

unlawfully long period as the result of deliberate indifference

is specific and well-defined, as I explain below. 1

Additionally, the majority acknowledges, see ante, at 5, but

fails to apply, the principle that the defendants’ assertion of

qualified immunity does not increase Sabo’s pleading stand-

ard. Sabo must provide only a “short and plain statement” of

a plausible claim. FED. R. CIV. P. 8(a)(2); see also Roldan v.

Stroud, 52 F.4th 335, 339 (7th Cir. 2022) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). He need not anticipate nor

overcome affirmative defenses like qualified immunity in his

complaint. Roldan, 52 F.4th at 339.

Under these well-known pleading standards, Sabo ade-

quately stated a claim. Taking his factual allegations as true,

he was kept on probation for an unlawful period, and he was

even incarcerated because he violated probation conditions

that should have ended months earlier. Hicks and Haley were

responsible for checking and revising sentences that did not

comply with the law—state law, to be sure, but I will address

that red herring separately. When they reviewed the sentence

here, they were incorrect about what the law permitted for

convictions like Sabo’s. No one—Sabo included—considers

this kind of mistake to violate the federal Constitution. But

when Hicks and Haley learned that the law did not permit a

category of sentences that they had approved in the exercise

of their official duties, they were then certain that they had

1 The majority proffers Taylor v. Barkes to suggest that the focus on

factual particularity in Mullenix has appeared directly in the Eighth

Amendment context. 575 U.S. 822 (2015). Taylor, however, offers only a

standard definition of what “clearly established” means, does not cite

Mullenix, and does not even imply a need for heightened factual specific-

ity. Id. at 825–26.

28 No. 21-3332

failed to correct at least some overly long terms of probation.

In other words, Sabo has pleaded, they had actual notice of

this fact.

Hicks and Haley also had the ability, at a minimum, to no-

tify someone of their error, and potentially could have per-

sonally discovered the names of probationers with unlawful

sentences. (To assume their inability to do so is to draw infer-

ences in the defendants’ favor rather than Sabo’s.) What they

did instead was nothing at all: They consciously disregarded

a known risk that one or more persons who had served out a

full sentence remained in the custody of the state with liberty

significantly curtailed.

These allegations state a claim that the defendants violated

Sabo’s rights under the Eighth Amendment (a finding the ma-

jority opinion avoids but casts serious doubt on). And these

allegations describe a violation of a clearly established right.

Sabo’s account of the facts warrants at least discovery to un-

cover the context for Hicks and Haley’s failure to act.

II.

Our decision in Figgs v. Dawson, 829 F.3d 895 (7th Cir.

2016), should govern this case, and it demands that we deny

qualified immunity at this point. Although we decided Figgs

after the relevant event in this case (Hicks and Haley’s discov-

ery of their error in 2005), our decision did not break new

ground. The cases we relied on in Figgs were decided before

2005: Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989), and

Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985). They articu-

lated the point that officials responsible for release dates can-

not bury their heads in the sand once alerted that someone—

anyone—is in state custody without justification under state

No. 21-3332 29

law. This duty, I emphasize, does not apply to all state actors,

but only to the officials with the power to give or take away

citizens’ liberty. Those officials can include an administrator

within a prison who must take seriously a credible complaint

that a person has been detained beyond his release date. Or it

could be someone in the unique position that Wisconsin law

placed Haley and Hicks, who could, according to the com-

plaint, unilaterally correct a sentence without input from or

action by a judge.

The state prisoner in Sample twice told a records officer

that he should not be in prison. 885 F.2d at 1104. That officer

failed to fully investigate the claim or tell anyone about the

prisoner’s assertion until he had spent nine extra months in

prison. Id. at 1104–05. On these facts, the Third Circuit deter-

mined that the district court did not err in concluding that this

officer was deliberately indifferent to the prisoner’s risk of

serving an unlawfully long prison term. Id. at 1111. In

Haygood, the state prisoner wrote a letter to the warden ques-

tioning whether two of his sentences could legally run con-

secutively and was informed that his sentence was correct.

769 F.2d at 1353. Only later was it discovered that his sen-

tences should have been concurrent. Id. The Ninth Circuit

agreed with the district court’s determination that the failure

of the warden’s office even to investigate the prisoner’s claim

would allow a reasonable jury to conclude that those officials

displayed deliberate indifference. Id. at 1355.

Our circuit relied on these sound decisions when we con-

cluded that the record office supervisor in Figgs was not enti-

tled to qualified immunity. We explained that it was clearly

established that a “failure to investigate a claim that an inmate

is being held longer than the lawful term of his sentence

30 No. 21-3332

violates the Eighth Amendment if it is the result of indifference.”

Figgs, 829 F.3d at 906 (emphasis added) (citation omitted). I

stress that this right is both clearly established and concrete—

not, as the majority asserts without explanation, abstract.

Ante, at 10.

So what has changed? Sabo, too, alleges that correctional

officials with the power and responsibility to correct unlawful

sentence lengths received concrete information that some sen-

tences under their purview were unlawfully long. They ig-

nored this information. It remains to be seen, after discovery,

whether this resulted from deliberate indifference, but for

now Sabo gets the benefit of the doubt based on pleading a

plausible claim.

My colleagues identify three characteristics that, they say,

make Sabo’s complaint so different from every previous case

that the defendants here could not have been on notice that

their inaction after learning of their legal error violated the

Constitution. These differences, while present, are superficial

and do not make the principle at issue any less “established.”

The first distinguishing characteristic the majority cites is

the particularized notice that the defendants had in prior

cases. In Figgs, for example, the state prisoner filed a grievance

and wrote letters explaining why his sentence was improperly

calculated. The same is true in Haygood and Sample—the state

prisoner in each case told correctional officials that his sen-

tence was too long. Sabo, however, did not inform Hicks and

Haley that his sentence was unlawfully long, nor did anyone

inform them on his behalf.

But Hicks and Haley had notice of the essential fact that

some people received unlawfully long probation sentences.

No. 21-3332 31

That sufficed to alert them to a need for investigation, even if

it was not specific enough information to allow them to cor-

rect Sabo’s sentence instantly. Indeed, what the majority por-

trays as a defect of notice is really a matter of what the correc-

tional officials had to do upon receiving notice. The defend-

ants in Figgs, Haygood, and Sample knew who had complained

about their sentence, to be sure, but still they needed to inves-

tigate to discover whether the complaints had any merit.

Hicks and Haley—or officials they could have advised of the

problem—also would need to investigate, but they knew al-

ready that meritorious claims existed. And Sabo argues only

that Hicks and Haley had to do something, not that they per-

sonally had to identify each unlawful sentence. (To the extent

that the majority assumes that this endeavor would involve

searching for proverbial needles in a haystack, nothing in the

pleadings supports an inference against Sabo that the task

would be exceptionally cumbersome.)

The second difference that the majority considers material

relates to causation. The majority points out that Hicks and

Haley did not cause the error in Sabo’s sentence, unlike the

defendants in Figgs, for example, who miscalculated the state

prisoner’s release date. To impute liability to correctional of-

ficers for a judge’s error, the majority worries, would place

those officers in a “precarious position.” Ante, at 14.

This line of argument mistakes what it means for an offi-

cial to be “responsible” for an unlawful sentence. In Figgs,

Haygood, and Sample, the courts located the defendants’ re-

sponsibility not in having caused the erroneous release date,

but in their ability to rectify it. Figgs, 829 F.3d at 903–04 (noting

that the record office supervisor was the only one with suffi-

cient information to recalculate Figgs’s release date); Haygood,

32 No. 21-3332

769 F.2d at 1359 (identifying a responsible official as one with

“authority to rectify an erroneous practice”); Sample, 885 F.2d

at 1115–16 (noting the defendants’ obligation to refer the mat-

ter to someone with authority to resolve the controversy). Ap-

plying this principle, Hicks and Haley—who had a final and

unilateral say over probation sentences, according to the com-

plaint—are “responsible” officials irrespective of who was at

fault for the initial error. The focus is on Hicks and Haley’s

own errors, not those of someone “outside of [their] supervi-

sory purview” as the majority contends. Ante, at 15 n.6.

Further, to the extent such a policy consideration is appro-

priate, the majority’s concern about placing correctional offi-

cials in a difficult spot is inapt. There is no danger that Hicks

and Haley, or those in their position, would risk any precar-

ity. State law specifically empowered them to correct a judge’s

order; that is, to choose between obeying state sentencing law

as written or abiding by a judge’s order even if incorrect. The

“precarity” is baked into the job description. If we have never

found a record keeper responsible for rectifying a judge’s sen-

tencing error, it is because we have never encountered Wis-

consin’s system of allowing non-judges such authority. That

is no reason to depart from clearly established principles and

hold that the nature of the system immunizes responsible par-

ties from constitutional liability for deliberate indifference.

The final characteristic the majority insists separates

Sabo’s case from previous cases is his sentence of probation

rather than imprisonment. As the majority sees it, that differ-

ence renders previous cases too dissimilar to establish the

principle at issue here. The majority characterizes the risk for

Sabo as “a level removed” because Hicks and Haley’s error

No. 21-3332 33

condemned him to an unlawfully long term of probation, not

imprisonment. Ante, at 16.

Long before 2005, the Supreme Court understood, and we

agreed, that probation and parole are forms of custody. See

Morrissey v. Brewer, 408 U.S. 471, 483 (1972); Drollinger v. Mil-

ligan, 552 F.2d 1220, 1224 (7th Cir. 1977). It follows, of course,

that keeping someone on probation for an unlawfully long

period is an Eighth Amendment violation if the defendant

acts with deliberate indifference. Campbell v. Peters, 256 F.3d

695, 700 (7th Cir. 2001). It is certainly not “clearly established”

that there are tiers of state custody, only some of which the

Eighth Amendment protects. And here, Sabo was in fact in-

carcerated, rendering the distinction even more artificial.

What are the consequences of the analytical framework

the majority has adopted? Using such slight distinctions be-

tween Sabo’s allegations and the prior cases to deny that the

constitutional right in this case is clearly established prevents

plaintiffs from enforcing their rights in all but the most oft-

repeated scenarios. Yet the Supreme Court has consistently

reminded us that it “is not necessary, of course, that the very

action in question has previously been held unlawful” and

that “an officer might lose qualified immunity even if there is

no reported case directly on point.” Ziglar, 582 U.S. at 151

(cleaned). Viewing the slight distinctions between Sabo’s alle-

gations and the prior cases as dispositive differences does

nothing to ensure that defendants are on notice of their con-

stitutional obligations. See Joanna C. Schwartz, Qualified Im-

munity’s Boldest Lie, 88 U. CHI. L. REV. 605, 610 (2021) (showing

that officers are not trained to make decisions based on gran-

ular factual scenarios, but on broad principles).

34 No. 21-3332

Further, the early stage of the proceedings in this case

makes the majority’s narrow definition of “clearly estab-

lished” even more burdensome. To avoid dismissal, need a

plaintiff map his factual assertions wholesale onto those de-

scribed in prior judicial decisions? We seem close to imposing

such a requirement. (The majority insists that this case does

not closely depend on factual determinations, making it

proper to address qualified immunity at the pleadings stage,

but this is belied by its reliance on factual distinctions to show

that this case is purportedly unlike any other.)

There are sound reasons, which I need not repeat here,

why courts ought not to decide most affirmative defenses,

and especially qualified immunity, on the pleadings. Roldan,

52 F.4th at 339. Although untimeliness, for example, can be

evident from the face of a pleading, qualified immunity, with

its fact-specific nature, is different. The Supreme Court’s in-

struction to decide immunity “at the earliest possible stage in

the litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991), can-

not mean we should reject a plaintiff’s well-pleaded com-

plaint, much less raise the pleading standard to do so.

Separate from the question of whether the right we have

all been discussing is “clearly established,” there is obviously

the question of whether the right exists at all. That matter

ought to be settled. We have frequently decided that a defend-

ant’s actual notice of a group of prisoners at risk of a constitu-

tional violation creates an obligation to do something to pre-

vent it, if in the position to do so. See, e.g., Brown v. Budz, 398

F.3d 904, 915 (7th Cir. 2005); Delaney v. DeTella, 256 F.3d 679,

686 (7th Cir. 2001). Here too, Hicks and Haley had notice that

a group of people in state custody were at risk of a constitu-

tional violation and, though Hicks and Haley were able to

No. 21-3332 35

take action to abate the risk, they did not. It is not clear why

the standard widely used in other prison contexts would not

also apply here. 2 Correctional officials in records depart-

ments, like their counterparts within prisons, are accountable

when they turn a blind eye to constitutional violations that

they are informed of and have the power to correct.

In deciding that Hicks and Haley are entitled to qualified

immunity before any facts are developed, the majority simul-

taneously (1) requires Sabo to assert a right with too much

granularity and (2) prevents him from acquiring enough facts

to satisfy the majority’s narrower formulation of the right.

(For all we know, Hicks and Haley had a spreadsheet with the

names of all affected probationers; only discovery would re-

veal this.) The majority’s moves restrain the practical availa-

bility of a remedy under § 1983 by expanding the textually

untethered defense of qualified immunity. 3 This, in turn,

2 The concurrence by Judge Easterbrook suggests that job duties do

not create constitutional obligations. Ante, at 17–18. But no one is trying to

make a federal case out of poor job performance. Sabo is not alleging the

approval of his sentence was the culpable act. Instead, he has identified an

undisputed constitutional violation—an unlawfully long term of state

custody—and he claims that Hicks and Haley acted with deliberate indif-

ference to the risk of that violation. Hicks and Haley’s job responsibilities

are important only because they establish their power to remedy the un-

lawful sentence, not because those duties determine the Eighth Amend-

ment standard. Considering job responsibilities when assessing the appro-

priate defendants for a § 1983 suit is a routine practice. See, e.g., Schillinger

v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020); Aguilar v. Gaston-Camara, 861 F.3d

626, 632–33 (7th Cir. 2017); Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940

(7th Cir. 2015).

3 For a succinct history of § 1983 and qualified immunity, including

the fact that qualified immunity appears nowhere in the text of § 1983, any

36 No. 21-3332

dilutes the statute’s ability to “interpose the federal courts be-

tween the States and the people, as guardians of the people’s

federal rights.” Mitchum, 407 U.S. at 242.

I would vacate the district court’s dismissal of Sabo’s de-

liberate indifference claim against Hicks and Haley. I respect-

fully dissent.

other statute, or the Constitution, see the opinion by Judge Carlton W.

Reeves in Green v. Thomas, 734 F. Supp. 3d 532, 543–48 (S.D. Miss. 2024).

For a discussion about the future of qualified immunity, see id. at 560–68.