# Joe Marsh, Leroy Owens v. Butler County, Alabama, the Butler County Commission > Court of Appeals for the Eleventh Circuit · September 26, 2001 · 268 F.3d 1014 URL: https://www.frixlaw.com/law-library/cases/9494470 ## Case - **Full name:** Joe MARSH, Leroy Owens, Plaintiffs-Appellants, v. BUTLER COUNTY, ALABAMA, the Butler County Commission, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** September 26, 2001 - **Citations:** 268 F.3d 1014; 2001 U.S. App. LEXIS 20948; 2001 WL 1135264 - **Precedential status:** Published - **Opinion:** Concurring in part by Tjoflat - **Judges:** Anderson, Tjoflat, Edmondson, Birch, Dubina, Black, Carnes, Barkett, Hull, Marcus, Wilson - **Cited by:** 604 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled in part, on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494470 ## How later opinions describe it (automated extraction) - concluding plaintiffs’ allegations were sufficient to satisfy objective prong of Eighth Amendment claim for deliberate indifference to a known risk of harm: plaintiffs alleged that jail lacked segregation policy, jail housed more prisoners than cells could accommodate, jail wa… - concluding that this Court would "decide th[e] case as one in which the complaint purports to sue the Sheriff in both her official and individual capacities,” even though the text of the complaint did not state an individual capacity claim, because "the parties and the distric… - finding plaintiffs had alleged Eighth Amendment claim based on deliberate indifference to a known risk of harm where plaintiffs alleged that sheriff “did absolutely nothing to alleviate the conditions at the Jail, despite repeated warnings and recommendations for how condition… - finding that, when courts in this Circuit must look to case law in order to discern whether a right has been clearly established, we look to decisions of the U.S. Supreme Court, the Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state - finding allegations of no segregation, overcrowding, understaffing, no head counts, dysfunctional cell door locks, homemade weapons readily available to inmates, no lock down of inmates during the day, no visual inspection of cells, failure to follow written policies, no scree… ## Opinion text TJOFLAT, Circuit Judge, concurring in part and dissenting in part, in which BARKETT, MARCUS and WILSON, Circuit Judges, join. I concur in the court’s judgment reversing the district court’s determination that the Sheriff is immune from suit for the injuries Marsh and Owens received as a result of the brutal assaults they suffered at the Butler County Jail. 1 I dissent, however, from the majority’s holding that the doctrine of qualified immunity bars the Count III claim for the injuries Owens suffered after Chief Deputy Phillip Hart-ley released him from the jail and- — in total disregard of the hospital’s discharge in *1049 structions that “the Sheriffs Department follow specific procedures to care for Owens’ head wounds and ... monitor his level of consciousness, pupils, vision, and coordination, and to call the hospital immediately if any change occurred” 2 — abandoned him, shoeless and in bloody clothing, in front of the Thrifty Inn motel on the edge of town, at Exit 128 on Interstate Highway 65. 3 As I read the majority opinion, the Sheriff cannot be held to answer for Owens’ injuries because (1) she had no notice of Owens’ release from the jail, (2) she did not participate in any way in Owens’ release and subsequent abandonment, and (3) she cannot be held liable under the doctrine of respondeat superior for Hartley’s inexcusable conduct. After reading the facts alleged in the complaint and drawing all reasonable inferences therefrom, as Rule 12(b)(6) requires, I conclude that the failure of the complaint to allege that the Sheriff actually knew of Owens’ medical condition, the discharge instructions the hospital had given Chief Deputy Hartley and Deputy Sheriff Benny Lowery, and Owens’ release from the jail and subsequent abandonment at the Thrifty Inn is entirely irrelevant. What is relevant is how the Sheriff handled inmate assaults — in particular, how she handled those who, like Marsh and Owens, were seriously injured. I thus turn first to her handling of inmate assaults. What the facts — alleged and reasonably inferred — show is that the Sheriff did absolutely nothing to prevent inmate assaults at the jail. As the majority acknowledges, given the jail’s configuration and the lack of security, with only one jailor on duty most of the time, assaults were not only inevitable, they were routine. 4 In Marsh’s case, the inmates who committed the assault were not disciplined (they should have been prosecuted for committing a felony); instead, they were permitted to retain their weapons (they assaulted Owens with the pipe they used to assault Marsh), and they were given a free run on the second floor. 5 In other words, the inmates had a green light to commit mayhem with impunity. The majority properly concludes that this constituted the Sheriffs “custom or policy” for dealing with inmate assaults — notwithstanding the fact that the custom or policy had not been reduced to writing, and the complaint does *1050 not spell it out as such. I now turn to the Sheriffs handling of the victims of inmate assaults who received serious injuries. If the victim was a sentenced prisoner, the inmate, after receiving the necessary-medical treatment, would be returned to the jail and would remain there (unless, and until, transported to a state prison facility). This is what happened in Marsh’s case. He was severely beaten, and then taken to the emergency room at Stabler Hospital. After being treated in the emergency room, he was returned to the jail and placed in a holding cell — to separate him from his assailants. 6 If the inmate happened to be a pretrial detainee — meaning that a court had denied him admission to bail — the Sheriff would ignore the fact that a judge had ordered him detained 7 and would release the detainee on his own recognizance. 8 This is what happened in Owens’ case. 9 Owens had been ordered detained, 10 but Chief Deputy Sheriff Hartley nonetheless released him. The inference, I submit, is inescapable, not merely permissible, that Hartley, in releasing an inmate who had been ordered detained, and then abandoning him in front of the Thrifty Inn at 3:30 in the morning, was not acting on his own; instead, he was acting pursuant to the Sheriffs custom or policy — notwithstanding the fact that it had not been reduced to writing and the complaint does not spell it out as such. This inference is inescapable — that is, a fair minded jury could reasonably draw it — when one focuses, first, on Hartley’s, and to a lesser extent Lowery’s, conduct from the moment Owens was discharged from the hospital until Hartley abandoned him in front of the Thrifty Inn, and, second, on the facts that led the majority to conclude that the Sheriff was not entitled to qualified immunity from suit for the beatings Marsh and Owens sustained at the jail. Hartley’s conduct should not be considered in isolation. Why Hartley did what he did is explained in large part by how the Sheriff ran the jail and, in particular, by what took place there between Marsh’s assault on July 1 and Owens’ assault two and a half days later. 11 In part I, I set forth — from the facts alleged in the complaint and from the permissible inferences they yield — what took place upon and after Owens’ discharge from the hospital. From those facts and *1051 inferences, I posit, in subpart A, that one of two things occurred: either Hartley was acting on his own when he released Owens from custody and then abandoned him at the Thrifty Inn, or, as I conclude, he was acting pursuant to the Sheriffs custom or policy. I do so because, as depicted in subpart B (and in the majority opinion), the events that took place before Owens’ discharge from the hospital point inexorably to the proposition that Hartley acted not on his own, but pursuant to the Sheriffs custom or policy. A. Owens was a pretrial detainee, charged with a misdemeanor. Under Alabama law, a person charged with a misdemeanor “as a matter of right may be released pending or during trial on his or her personal recognizance or on an appearance bond, unless the court or magistrate determines that such a release will not reasonably assure the defendant’s appearance.” Ala. R. Crim. P. 7.2(a). Owens’ pretrial detainee status therefore meant that a court or magistrate had denied him release. The circumstances surrounding his incarceration — from the time he entered the jail until Hartley released him in the early morning of July 4 — fully evidence the fact that Owens had been ordered detained. Had he been granted release on his own recognizance, Owens would have signed his bond on July 1 and walked out of the jail. He would have done so because he feared for his safety. On July 2 or 3, after having been harassed by other inmates, he asked Jailor Stone to put him in a solitary cell. She refused his request. 12 Moreover, had he been entitled to leave on his own recognizance, his uncle, who came to the jail with his medicine on July 2 (after his grandmother had spoken to the jailor on duty), would have obtained his release. 13 Thus, as of the time he suffered the assault — between 11:00 p.m. and midnight on July 3 — and as of the time of his release— at 3:30 a.m. on July 4- — Owens’ status as a pretrial detainee had not been altered. Chief Deputy Hartley obviously knew this; that is why he rushed Owens to “sign his own bond” less than twenty minutes after his discharge from the hospital. Hartley-was in such a hurry to get Owens out of the jail and out of town that he did not pause to retrieve Owens’ shoes or find something for him to wear. 14 I return to that point later. Hartley came to the jail while Owens was being assaulted or shortly thereafter; 15 he was the only person in the Sheriffs office to accept Nicholson’s plea for help. Nicholson, on duty alone at the jail, “called the Greenville City Police. Two city police officers arrived, but refused to go upstairs. Nicholson then called Sheriff Harris and Jail Administrator Thelma Teague. Both refused to come to the jail.” 16 When the county’s chief law enforcement officer refused to become involved, Nicholson turned to Chief Deputy Hartley. 17 *1052 The brutal assault on Owens by four inmates — the same four who assaulted Marsh on July 1 — began sometime between 11 p.m. and midnight on July 3 and lasted between thirty to sixty minutes. 18 It was, under Alabama law, an assault in the first degree, 19 if not attempted murder. 20 The assailants suspended the assault on several occasions upon hearing the rustling of keys but continued to beat Owens “[w]hen they realized that no one was coming upstairs.” 21 Twenty minutes after the incident, Hartley retrieved Owens, who “lay in a pool of blood on the dayroom floor.” 22 Owens’ injuries were serious and an ambulance was called to the scene; at 12:17 a.m., it transported Owens to Stabler Hospital. 23 He was received in the emergency room and treated there for nearly three hours, until 3:10 a.m., when Chief Deputy Hartley and Deputy Lowery regained his custody. To obtain Owens’ custody, they had to sign a discharge sheet which stated that Owens was being discharged into the custody of the “Sheriffs Department” with instructions “to follow specific procedures to care for Owens’ head wounds and other injuries[,] ... to monitor his level of consciousness, pupils, vision, and coordination, and to call the hospital immediately if any change occurred.” 24 A fair-minded jury would readily infer from the allegation that the two deputies “signed a discharge sheet” that they had read and understood the instructions it contained. The jury would also infer that the deputies, in signing the discharge sheet, represented, and the emergency room physician assumed, that Owens would remain in the custody of the Sheriffs Department. 25 *1053 This representation was false, and it was false when made. Chief Deputy Hartley never intended to have Owens monitored by the Sheriffs Department — at the Butler County Jail or any other facility. Why? Because moments after he and Lowery arrived back at the jail, he instructed Owens “to sign his own bond,” 26 and then took him to the edge of town, let him out at the Thrifty Inn and drove away. 27 All of this — from Owens’ discharge from the hospital to the arrival at the motel — took no more than twenty minutes. How anxious was Hartley to get rid of Owens? He was so anxious that he did not so much as bother to retrieve Owens’ shoes or get him a change of clothing; he took Owens to the Thrifty Inn in the same horrible condition in which he found Owens after the assault, and did not wait to see whether he could get a room there. He simply let Owens out of the car and drove off. What does Hartley’s conduct imply? The possible inferences are (1) that he committed this reprehensible conduct entirely on his own, or (2) that he was acting pursuant to the Sheriffs custom or policy or explicit directions. 28 If Hartley acted on his own, then he chose to lie to the emergency room physician who told him and Lowery that he would not discharge Owens unless the Sheriffs office would agree to monitor his condition and to call the hospital if he took a turn for the worse. There can be no doubt that he lied to the emergency room physician because the moment he arrived back at the jail, after having Owens sign his bond, he turned around and headed out of town, letting Owens out at the Thrifty Inn. Hartley not only lied to the physician, but he ignored the fact that a court had ordered Owens detained. Why would the Sheriffs Chief Deputy do such things? What incentive would he have to lie to the emergency room doctor, 29 to disregard a court order, and, perhaps worst of all, to treat a human being as cruelly as he treated Owens? If the Greenville Police had *1054 not found Owens staggering on the 1-65 overpass, he could have been hit by a car and killed. A fair minded jury would find that Hartley did such things — as utterly reprehensible and contemptuous as they were — to keep his job. Under no circumstances would he do such things on his own. If he did, the Sheriff would fire him. Her explanation to the judge who had ordered Owens detained would be that she had nothing to do with Hartley’s disregard of his detention order, and that he had been fired. In addition to losing his job, Hartley would leave himself wide open for a suit for damages. No, Hartley was following the Sheriffs custom or policy. 30 If there is any doubt, the events that took place before Hartley came on the scene should remove it. B. The majority properly acknowledges the deplorable conditions at Butler County Jail countenanced by Sheriff Harris. Her actions, or lack thereof, were so egregious that every judge of this en banc court has voted to deny the Sheriff immunity from suit despite the absence of a Supreme Court or Eleventh Circuit case on all fours that would have placed her on notice that her operation of the jail — top to bottom— constituted cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. No such notice is required where it would be obvious to anyone standing in the Sheriffs shoes that her operation of the jail trampled upon the constitutional rights of sentenced inmates and pretrial detainees. 31 The building was in such a state of disrepair that inmates were able to fashion makeshift weapons by cannibalizing parts of the decaying building. The locks on the cell doors did not function, and as a result, inmates were not kept in distinct berths, but instead were free to roam with no classification to divide pretrial detainees from convicted felons or violent offenders from nonviolent ones. Instead of making up for structural deficiencies with increased monitoring, the Sheriff allowed the facility to remain grossly understaffed and technologically deficient. The inmate population was often controlled by a single jailor who was also responsible for intake and release, monitoring the perimeter, as well as administrative tasks such as coordinating mail, food service, medication, and phones. That aggravated assaults by inmates had become acceptable is further evidenced by the conduct of the jailor in charge during the Marsh and Owens assaults. From the complaint, we can glean that one jailor worked the day shift and one manned the night shift at the Butler *1055 County Jail. Sabrena Stone was on duty during the attack on Marsh; Nicholson was on duty during the assault on Owens. On each occasion the jailor — Stone on July 1, and Nicholson on July 3 — waited until the attack was over to rescue the victim despite loud calls (from the victim and other inmates) for help. When attackers realized that no help for their victim was coming, they returned to the dayroom to continue the assault. The assailants could confidently continue their crimes knowing that they would not face legal punishment or any negative consequence within the jail. Neither Stone nor Nicholson took any steps to bring the assailants to justice or to deter future occurrences of violence, nor did Investigator Harden, who took Marsh to the hospital, or Hartley or Lowery, who ministered to Owens. Indeed, the assailants had a “green light.” The inferences that can be drawn from all of this are, first, that the Sheriff was not going to charge any assailant, and, second, that her subordinates were aware of her policy and therefore acted accordingly. In sum, I submit that when one considers Chief Deputy Hartley’s conduct after he surreptitiously obtained Owens’ release from the Stabler Hospital in the light of what transpired at the jail beforehand, the inference is inescapable that Hartley acted at the Sheriffs behest. Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11th Cir.1997), a case the majority opinion fails to cite, is directly on point. There we observed that under Alabama law, “deputies are a legal extension of the sheriff because they act as sheriffs agent and can perform any act within [the] sheriffs authority.” Id. (citing Carr v. City of Florence, 916 F.2d 1521, 1526 (11th Cir.1990)). How can it be argued that Chief Deputy Sheriff Hartley was not the Sheriffs agent? II. The proper use of Rule 12(b)(6) of the Federal Rules of Civil Procedure is at stake in this case. The majority shows abject disregard for the Rule’s command requiring us to accept all alleged facts as true and then draw from those facts as many inferences favorable to the plaintiff as possible. Instead, the majority turns a blind eye to context and considers each fact in isolation, in effect destroying any chance for a properly pled (circumstantial evidence) claim to survive a motion to dismiss. The traditional strategy for defeating a circumstantial evidence case — on the pleadings, or on summary judgment, or at trial — is to isolate the facts alleged, or proven, and then say: what does this prove? Of course, it may prove nothing. Defense counsel in conspiracy prosecutions routinely make this argument to the jury; they point to isolated acts, which are entirely innocent on their face — like making a telephone call, or walking across the street — and say that they establish nothing. The prosecutor, in responding, treats these innocent acts as dots and draws lines between the dots. What emerges is the criminal conspiracy charged in the indictment. The majority opinion uses the former tactic here. For example, referring to the Sheriffs “custom and policy of releasing sick or injured inmates,” alleged as a fact in paragraph 54 of the complaint, the majority, isolates the fact and observes: “We believe such a policy, on its face, violates no constitutional guarantees and is not a facially unconstitutional policy.” Ante at 1036. I am at a loss to understand such treatment of this fact. Owens does not seek an order enjoining this policy as unconstitutional. Rather, the allegation merely asserts why Hartley had Owens sign his own bond. In addition to isolating facts revealed by the complaint, so as to neutralize them, 1 the majority, although paying lip service to the need to consider *1056 the inferences these facts yield, says that “no inferences can be reasonably drawn to make up for the missing facts.” Ante at -. I invite the majority to say that the inferences I have drawn from the facts “well pled” in Owens’ complaint are not there. The majority opinion, if implemented, will invite lawyers with cases like Owens’ — in which they have no access to the evidence that would explain why the Sheriff and her deputies acted as they did — to allege facts in the blind. What about Rule 11 of the Federal Rules of Civil Procedure? The majority opinion makes no mention of the rule, but it is surely implicated. Rulé 11 states, in pertinent part: (b) Representations to Court. By presenting to the court ... a [complaint] ... an attorney ... is certifying that to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the [complaint’s] claims ... and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions [of the complaint] have evi-dentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may ... impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. Fed. R. Civ. P. 11 (2001). Let us suppose that, when this case returns to the district court, Owens’ counsel examines the Sheriff, Chief Deputy Hartley, the emergency room physician (who treated Owens), and the hospital’s administrator on deposition, and the following is established: 1) The injuries Owens sustained during the assault were serious enough that he needed close monitoring, because he might suffer a relapse. 2) After Owens arrived at the emergency room, at around 12:17 a.m., Hartley called the doctor on duty. The doctor told him that his injuries were serious and that he need to be watched closely because his condition might worsen. The doctor told Hartley that Owens should be hospitalized so his condition could be monitored; Hartley responded that the monitoring could be done at the jail. Hartley said this because, after the ambulance transported Owens to the hospital, Hartley, knowing that Owens had serious injuries, called the Sheriff. They discussed the possibility that the emergency room doctor might want Owens admitted to the hospital proper, and that, if admitted, the Sheriff would have to pay the bill. The Sheriff did not want to pay the bill; she was terribly short of funds — which explained why she had been unable to correct the multiple deficiencies the state corrections officials and others had cited. So, the Sheriff instructed Hartley to do what was necessary to keep Owens out of the hospital. He had to lie to the emergency room doctor, if necessary. *1057 3) Hartley lied to the doctor; he misrepresented that Owens would be monitored at the jail in accordance with the hospital’s, and the doctors’, discharge instructions. 4) At some point, Hartley and the Sheriff discussed Owens’ disposition after he and Lowery retrieved him from the hospital. They recalled what had happened to Marsh after he returned to the jail; the four inmates who had assaulted him got into his holding cell and blasted him with a fire extinguisher. The same four inmates were the ones who had assaulted Owens, and were still “at large,” and in possession of their weapons. If Owens were readmitted to the jail, they knew — given his condition — that he could not withstand another assault. The Sheriffs and Hartley’s discussion ended with the Sheriffs instruction that Hartley get Owens out of the jail and take him to a motel on the edge of town. They overlooked the fact that Owens was a pretrial detainee and, as such, could not be released except on court order. If Count III had alleged these facts, I have no doubt that the majority would hold that the Sheriff is not entitled to qualified immunity. As I read the majority’s position, the drafter of Count III should have alleged these facts or their equivalent. In my view, the ethical constraints imposed on the litigation bar by Rule 11 precluded him from doing so. This is a quintessential Catch-22 situation, is it not? Now, continuing the above supposition, after obtaining this evidence — which, with perhaps the exception of what the emergency room doctor might say — was, and is, entirely in the possession of the Sheriff, her Chief Deputy, and their minions, Owens’ counsel moves the district court to amend Count III. The Sheriff, citing the law of the case doctrine, will object and her objection will probably be sustained. Or she will plead the statute of limitations. In either case, Owens, who had no access to the evidence which would establish the facts the majority says he should have pled, will go hence without day. Respectfully, I dissent. . The Jail is located in the City of Greenville, the county seat of Butler County. . See paragraph 53 of the complaint, which is attached to this opinion as an Appendix. . The internet site Mapquest pinpoints the location of the Thrifty Inn at Exit 128 on 1-65. Mapquest (visited Sept. 22, 2001 ). The Rand McNally Road Atlas shows that 1-65 bypasses Green-ville, and that Exit 128 is beyond Greenville's city limits. Although these facts are not alleged with such precision in the complaint, the complaint does allege that after Hartley let Owens out of his car at the Thrifty Inn and drove away, the clerks at the Inn refused to give him a room, and when a Waffle House restaurant nearby also provided no help, Owens wandered onto 1-65. We should take judicial notice of the location of the City of Green-ville, 1-65, and the Thrifty Inn, since these facts could not reasonably be disputed. . I say that inmate assaults routinely took place because such can be inferred from the multiple complaints lodged against the Sheriff by authorities responsible for overseeing prison and jail conditions in Alabama and the lawsuit pending against her in the United States District Court for the Middle District of Alabama. The majority properly acknowledges that these complaints, which are described in paragraphs 27 through 29 of the complaint, preceded the assaults against Marsh and Owens. I also infer that the assaults routinely took place from what the jailors — Sabrena Stone and Preston Nicholson— did, and did not do, once they became aware that the beatings Marsh and Owens sustained in this case were taking place. . See Appendix paragraphs 17, 37, 47. . See Appendix paragraph 39. . As noted in the text infra, under Alabama law, a person charged with a misdemeanor is entitled as a matter of right to release on his own recognizance or an appearance bond unless a court orders him detained. Ala. R.Crim. P. 7.2(a). . The majority opinion is silent concerning the lawfulness of the Sheriff's alleged "policy and custom releasing sick or injured inmates." See Appendix paragraph 54. It would be unlawful for the Sheriff to release a sentenced inmate prior to the completion of his sentence or his release on parole. This is why the Sheriff did not release Marsh. On discharge from the hospital, Marsh was taken back to the jail and detained until August 6, 1996, when he was transported to a state correctional institution. See Appendix paragraph 9. It would also be unlawful for the Sheriff to release a pretrial detainee, for to release him would violate the court order requiring the Sheriff to detain him. . See Appendix paragraph 54. . The complaint alleges that Owens occupied the status of a pretrial detainee. See Appendix paragraph 41. We must assume, therefore, as I establish in subpart A, infra, that a court had denied him admission to bail and ordered his detention (in the Butler County Jail) — until further order of the court. . Marsh's assault took place in the afternoon of July 1, while Jailor Stone, who worked the day shift, was on duty. Owens' assault took place between 11:00 p.m. and midnight on July 3, while Jailor Nicholson was on duty. . See Appendix paragraph 45. . See Appendix paragraph 43. . I realize that the complaint did not allege this in the manner I have set out. I am convinced, however, that a competent lawyer would be entitled to argue the point to a jury notwithstanding the Sheriff’s objection. . The complaint does not fix the precise moment of his arrival at the jail. It had to be, however, before an ambulance came to transport Owens to the hospital at 12:17 a.m. on July 4. . See Appendix paragraph 49. . The inferences here are either (1) that Nicholson called Hartley pursuant to the Sheriffs instructions or (2) that the Sheriff gave Nicholson no instructions, so he called Hart-ley on his own initiative. The first inference supports the ultimate inference that Hartley *1052 was acting pursuant to the Sheriffs custom or policy. However, not until the plaintiff is able to interrogate Nicholson and the Sheriff under oath will the truth be known. Under the majority's approach to the problem, plaintiffs counsel should have alleged the first inference as a fact. In that plaintiff's adversary has possession of all of the evidence on the point, how counsel could make such an allegation without violating Rule 11 of the Federal Rules of Civil Procedure escapes me. . See Appendix paragraphs 49, 50. . Under Ala. Code § 13A-6-20 (2001) : a person commits the crime of assault in the first degree if: (1) with intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; or (3) under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person. . Under Ala. Code § 13A-6-2 (2001), a person commits murder if: (1) With intent to cause the death of another person, he causes the death of that person or of another person .... Ala Code § 13A-4-2 (2001) defines attempt as follows: (a) a person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense. (d) An attempt is a: (1) Class A felony if the offense attempted is murder. At one point during the assault on Owens, an inmate called Jailor Nicholson for help, yelling "they’re killing him up here.” See Appendix paragraph 48. . See Appendix paragraph 50. . See Appendix paragraphs 51, 52. . See Appendix paragraph 52. . See Appendix paragraph 53. . Can it be doubted that the discharge instructions were written by a physician? Since Owens was not admitted to the hospital proper, the physician had to be the doctor on duty in the emergency room. . See Appendix paragraph 54. . Hartley did not even wait to see whether the Thrifty Inn would give Owens a room. We know this because, after denying Owens a room, someone at the motel called the Green-ville Police. See Appendix paragraph 55. By this time, Owens was out in the night fending for himself. . Another inference is that Hartley thought that having Owens sign "his own bond” relieved him, and the Sheriff, of the obligation to care for Owens' serious medical needs in accordance with the hospital's discharge instructions. In other words, he could vitiate the instructions, and his (and Lowery’s) representation — in signing the discharge sheet and by releasing Owens on his own recognizance. Attempting to avoid his, and the Sheriff’s, obligation to monitor Owens' condition and report any untoward changes to the hospital would, in my view, be disingenuous. I doubt that a jury would infer that Hartley conjured such a scheme of avoidance between 3:10 and 3:30 in the morning, and I therefore reject the scheme as a permissible inference from the facts alleged in the complaint. .I would dare say that, if his deposition is taken in this case, which will surely be done, the emergency room physician — in describing the seriousness of Owens’ injuries — will certainly emphasize the importance of the discharge instructions he gave Hartley and Lowery and relate in full the conversation he had with these officers before he allowed them to take.Owens away. One does not have to be clairvoyant to picture what the doctor will say when asked — by the Sheriff’s lawyers — whether Owens was in any condition to be taken out of town and left at the front door of a motel along 1-65 to fend for himself. Armed with the majority opinion, which grants the Sheriff qualified immunity for Hartley's conduct, the Sheriff's lawyers will no doubt object that the examination of the emergency room physician I posit would be improper. Their objection should be ruled out of order; the examination I posit will constitute evidence concerning the extent of the injuries Owens received at the jail. . I posit that, during the pretrial discovery that ensues once this case is returned to the district court — especially the depositions of the Sheriff, Hartley, and those who operate Stabler Hospital — plaintiff's counsel will determine who would have been responsible for paying the bill if Owens had been admitted to the hospital. If the Sheriff would have been responsible, perhaps this might explain why Hartley and Lowery were willing to sign the discharge sheet and why Hartley abandoned Owens at the Thrifty Inn. In other words, the Sheriff's standing orders were to avoid having an assaulted inmate admitted to the hospital. In Owens' case, implicit in the monitoring instructions the emergency room physician gave the deputies is the fact that, had they told the doctor that the Sheriff's office was not going to obey the instructions, Owens would not have been permitted to leave the hospital. . While no on-all-fours-case from the Supreme Court or this court put the Sheriff on notice, she nonetheless had plenty of notice from other quarters, not the least of which was a lawsuit pending in the United States District Court for the Middle District of Alabama. See supra note 4. . Under Supreme Court precedent and the Federal Rules of Civil Procedure, a court ruling on a motion to dismiss is required to accept a plaintiff’s allegations as true and construe those allegations in the light most favorable to the plaintiff. In failing to do so here, the majority conflates the degree of specificity required of a complaint to adequately allege a substantive fact and the actual substantive facts which must be alleged to state a claim. To the extent that the majority suggests a different standard for pleading in anticipation of the affirmative defense of qualified immunity, the Supreme Court has held that “questions regarding pleading ... are most frequently and most effectively resolved either by the rulemaking process or the legislative process.” Crawford-El v. Britton, 523 U.S. 574, 595 , 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998) (rejecting attempt to impose heightened standard of proof on civil rights claims as unsupported by § 1983 and the Federal Rules and straying "far from the traditional limits on judicial authority”). Here, although the majority implies that the policy concerns behind qualified immunity justify requiring more particular allegations from Owens's complaint, “that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Leatherman, 507 U.S. at 168, 113 S.Ct 1160 ("it is impossible to square ... [a] heightened pleading standard ... with the liberal system of ‘notice pleading’ set up by the Federal Rules”). Indeed, when Congress has wished to impose a heightened pleading standard, it has not hesitated to do so, either in the Federal Rules of Civil Procedure, see Fed.R.Civ.P. 9(a) (imposing heightened pleading standard for allegations of fraud and mistake), or by statute, see 15 U.S.C. § 78u-4 et seq. (imposing heightened pleading standard for claims under federal securities laws). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494470. Public record. Not legal advice.