The opinion
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 8, 2022 — DECIDED APRIL 30, 2024
____________________
Before WOOD, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
JACKSON-AKIWUMI, Circuit Judge. John Sabo received a pro-
bation sentence that exceeded the Wisconsin statutory maxi-
mum for his offense. Months after his probation should have
been over, he was imprisoned for violating the conditions of
that probation. Sabo sued two sets of defendants under
42 U.S.C. § 1983: Sheri Hicks and Debra Haley, the Wisconsin
Department of Corrections officials who failed to correct his
2 No. 21-3332
unlawful term of probation; and Megan Erickson and Barb
Hanson, the probation officers who enforced it. He alleged
that all four defendants violated his right of due process and
showed deliberate indifference to his unjustified imprison-
ment, and the two probation officers committed an unreason-
able seizure under the Fourth Amendment by failing to re-
lease him after they became aware of the sentencing error. The
district court dismissed all claims against Hicks and Haley,
the corrections officials, and most against Erickson and Han-
son, the probation officers, before entering summary judg-
ment for Erickson and Hanson on the deliberate indifference
and unreasonable seizure claims. But because Sabo’s com-
plaint 1 stated claims of deliberate indifference against Hicks
and Haley, and because, assuming all facts and inferences in
Sabo’s favor, the record as it stands does not compel a finding
of qualified immunity, we vacate the district court’s dismissal
of those claims. We affirm in all other respects.
I. Background
A. Sabo’s Conviction, Sentence, and Incarceration
We accept as true all well-pleaded facts and draw reason-
able inferences in Sabo's favor with regard to his dismissed
claims against Hicks and Haley. Peterson v. Wexford Health
Sources, Inc., 986 F.3d 746, 751 (7th Cir. 2021). As to Sabo’s
claims against Erickson and Hanson, we recount the facts in
the light most favorable to Sabo, the nonmoving party. Figgs
v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016).
1 We refer to Sabo’s operative complaint, which was his first amended
complaint, unless otherwise noted.
No. 21-3332 3
In 2004, Sabo pleaded guilty to driving while intoxicated
and was sentenced to five years’ probation. The parties agree
that this was an error, as the statutory maximum for Sabo’s
offense was three years’ probation. At the time of Sabo’s sen-
tencing, Hicks and Haley worked at the Department’s Central
Records Unit, where they reviewed and corrected sentences
that exceeded the statutory maximum. The judgments they
corrected were filed in the Department with copies sent to
probation officers and sentencing judges “as a courtesy.”
Sabo’s sentence underwent this review, with no corrections to
his sentence.
In 2005, the year after Sabo’s sentencing, Hicks and Haley
discovered that they had been overstating maximum terms of
probation since 2003. They apparently received a chart—from
whom the record is unclear—listing the correct maximum
probation sentences for various offenses. Despite their reali-
zation that some probation sentences they had reviewed were
unlawfully long, neither Hicks nor Haley took any steps to
investigate or remedy the errors. The defendants estimate that
between 1,000 and 1,500 of the sentences reviewed by Hicks
and Haley had errors in the probation terms and concede that
no action was taken to correct this problem.
Sabo began his probation in July 2014 (it was consecutive
to other sentences), with Erickson as his probation officer. In
December 2017—approximately five months after a three-
year term of probation would have ended—Sabo was arrested
in the aftermath of a domestic dispute. Erickson believed Sabo
violated the rules of his probation by resisting arrest and con-
suming alcohol, so she began proceedings to revoke his pro-
bation. Erickson also put a “hold” on Sabo requiring that he
be jailed pending his revocation hearing. Erickson consulted
4 No. 21-3332
with Hanson, the assistant regional probation supervisor, be-
fore recommending the hold, though the parties disagree on
the extent to which Hanson was involved in that decision.
While in jail—he does not say when—Sabo discovered
that his term of probation was longer than the law allowed.
Sabo was unable to contact Erickson about the error (proba-
tion officers do not accept collect calls, and Erickson refused
his request for a jail visit and his fiancée’s calls about the mat-
ter), so Sabo’s attorney informed Erickson. On April 13, 2018,
Erickson inquired at the Department about the legality of
Sabo’s sentence, and was told by Janelle Nehring, a correc-
tions official who specialized in sentencing, that Sabo’s attor-
ney “appears to be correct on this one.” But Erickson was also
informed that the Department’s legal counsel had advised
that Department officials were “no longer commuting terms
of probation per [section] 973.09(2m) [of the Wisconsin Stat-
utes],” the statutory provision governing excessive terms of
probation. Nehring offered to send the sentencing court a let-
ter indicating Sabo’s probation term was excessive but
warned that the Department could do nothing if the court
took no action. Erickson forwarded Nehring’s email to Sabo’s
attorney, and both the attorney and Nehring wrote letters to
the sentencing court regarding the error. Sabo was finally re-
leased on May 3, 2018, the day the sentencing court amended
his judgment with the correct term of probation. In total, he
spent 291 days on probation beyond the statutory maximum
for his conviction, 133 of those in jail.
B. District Court Proceedings
In May 2020, Sabo sued under 42 U.S.C. § 1983. His com-
plaint identified two sets of defendants whose inaction, he be-
lieved, had violated his constitutional rights. First, Sabo
No. 21-3332 5
asserted that Hicks and Haley were deliberately indifferent
under the Eighth Amendment when they failed to investigate
and correct his sentence after realizing their error. Hicks and
Haley conceded that they failed to review any of the judg-
ments to which they had applied the erroneous standards, but
moved to dismiss, arguing that they had no duty to correct
Sabo’s sentence and, alternatively, that they were entitled to
qualified immunity for not doing so.
Second, Sabo argued that Erickson and Hanson were
obliged to release him from jail once they became aware of his
erroneous sentence. By failing to do so, Sabo asserted, they
were deliberately indifferent to his unjustified imprisonment
under the Eighth Amendment and subjected him to an unrea-
sonable seizure under the Fourth Amendment. In moving to
dismiss, Erickson and Hanson contended that, because they
were merely enforcing a then-valid judgment and took
prompt action to inform the sentencing court of the error,
there was no constitutional violation, and they were also en-
titled to qualified immunity.
Finally, Sabo alleged that Erickson and Hanson violated
his constitutional rights by failing to discover and correct his
sentencing error when he began probation and that all the de-
fendants were negligent under state law and violated his
Fourteenth Amendment right to due process. Because Sabo
does not challenge the dismissal of these claims on appeal, we
do not discuss them further.
The defendants moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6). The district court acknowledged that
Sabo’s sentence was unlawful and that Hicks and Haley took
no action after discovering their mistake, but granted the mo-
tion after concluding that they had not violated Sabo’s Eighth
6 No. 21-3332
Amendment rights. The district court understood Sabo to
have alleged that “Haley and Hicks knew that it was essen-
tially certain that, due to their misunderstanding of the law,
many probationers were subject to unlawfully long sen-
tences,” but not “that Haley or Hicks knew of any likely prob-
lem specific to Sabo.” Citing Perrault v. Wisconsin, No. 15-CV-
144-BBC, 2016 WL 126918 (W.D. Wis. Jan. 11, 2016), aff'd sub
nom. Perrault v. Wis. Dep't of Corr., 669 F. App'x 302 (7th Cir.
2016), involving a similar § 1983 suit alleging an unlawfully
long term of probation, the district court concluded that
“simply alleging that defendants were aware of the general
possibility that prisoners’ sentences may be inconsistent with
Wisconsin law does not state a claim for deliberate indiffer-
ence.”
The district court allowed the Fourth and Eighth Amend-
ment claims against Erickson and Hanson to proceed, how-
ever, because Sabo had alleged that the Department allowed
administrative employees like Hicks and Haley to amend sen-
tences they found to exceed the statutory maximum, and the
inference that probation officers like Erickson and Hanson
could also do so was plausible.
Sabo moved to reconsider the dismissal of the Eighth
Amendment claim against Hicks and Haley. The district court
denied the motion after concluding that the Department’s
policy of reviewing sentences for error did not create a consti-
tutional duty for Hicks and Haley to either identify or correct
judges’ sentencing errors.
Erickson and Hanson then moved for summary judgment
on the remaining Eighth and Fourth Amendment claims
against them. The district court granted the motion, conclud-
ing that the primary error was that of the sentencing judge
No. 21-3332 7
and Sabo had not presented evidence that Erickson or Hanson
had the authority to unilaterally correct sentencing errors. Be-
cause of this, Erickson and Hanson “had no choice but to en-
force the judgment” until it was corrected by the sentencing
judge and, therefore, had not been deliberately indifferent to
Sabo’s constitutional rights.
II. Discussion
A. Sabo’s complaint alleges a claim of deliberate indif-
ference against Hicks and Haley
We review de novo the district court’s decision granting a
motion to dismiss for failure to state a claim. Peterson, 986 F.3d
at 751. For the purpose of Sabo’s Eighth Amendment claim
against the corrections officials, Hicks and Haley, we accept
the facts in his complaint as true and review them in the light
most favorable to him. Id. Sabo need only allege enough facts
to state a claim for relief that is plausible on its face. Id.
As a plaintiff seeking to hold public officials personally li-
able under § 1983, Sabo must plead that (1) Hicks and Haley
acted “‘under color of state law’” to (2) deprive him of a con-
stitutional right.2 DiDonato v. Panatera, 24 F.4th 1156, 1159
2 The dissenting opinion’s focus on what Sabo alleged with respect to
duty is misplaced because Sabo was not required to plead duty. Duty is
not a pleading requirement for § 1983 claims in general or deliberate in-
difference claims specifically. None of the dissent’s cited cases say it is ei-
ther: Rodriguez and Jones relied on the plaintiffs’ failures to prove—not
plead—duty. 189 F.App’x 522, 527 (7th Cir. 2006); 869 F.2d 1023, 1031
(7th Cir. 1989). And Farmer and Thomas both discuss duty as arising from
the Eighth Amendment itself. See 511 U.S. 825, 832–33 (1994); 2 F.4th 716,
719 (7th Cir. 2021). True, Sabo cannot prevail on an Eighth Amendment
claim unless the defendants owed him a duty, but he did not need to plead
duty. The question of duty is secondary to—and determined by—the
8 No. 21-3332
(7th Cir. 2022) (quoting 42 U.S.C. § 1983). Defendants act un-
der color of state law when they abuse the positions given to
them by the state. Id. at 1159–60. When determining whether
a defendant acted under color of state law, courts consider the
defendant’s specific acts in relation to her performance of
state functions. See, e.g., West v. Atkins, 487 U.S. 42, 54–56
(1988) (private physician acted under color of state law while
treating state prisoner); DiDonato, 24 F.4th at 1162 (no § 1983
liability for negligent treatment and sexual assault by city par-
amedic acting in personal capacity).
Here, Sabo’s allegations raise a question of material fact
regarding whether Hicks and Haley acted under color of state
law. See Valentine v. City of Chicago, 452 F.3d 670, 683 (7th Cir.
2006) (defendant’s responsibilities on behalf of state may raise
question of material fact as to whether defendant acted under
color of state law). Hicks and Haley were responsible for re-
viewing and correcting sentences that exceeded the statutory
maximum. That fact, though directly applicable only to their
initial review of Sabo’s sentence, gives rise to the reasonable
inference that they were similarly responsible for some part
of correcting past sentencing errors once they were aware of
those errors. See id.
Sabo must additionally plead that Hicks and Haley de-
prived him (or caused him to be deprived) of a constitutional
right. See 42 U.S.C. § 1983; Didonato, 24 F.4th at 1159. Custody
question of constitutional deprivation: If what the plaintiff alleges
amounts to deprivation of a constitutional right, then persons acting un-
der color of state law of course have a duty to not occasion such a depri-
vation. The proper focus is on whether Sabo alleged a constitutional dep-
rivation perpetrated or caused by Hicks and Haley, acting under color of
state law. See 42 U.S.C. § 1983.
No. 21-3332 9
beyond the date a person is entitled to release violates the
Eighth Amendment if it is the product of deliberate indiffer-
ence. Figgs, 829 F.3d at 902, and probation is a form of custody,
Drollinger v. Milligan, 552 F.2d 1220, 1224 (7th Cir. 1977); see
also Hankins v. Lowe, 786 F.3d 603, 605 (7th Cir. 2015) (listing
cases in similar parole context). “Deliberate indifference oc-
curs when a defendant realizes that a substantial risk of seri-
ous harm to a prisoner exists, but then disregards that risk.”
Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). It requires
“more than negligence or even gross negligence”: the defend-
ant must have been “essentially criminally reckless, that is, ig-
nored a known risk.” Figgs, 829 F.3d at 903.
In Hankins v. Lowe, we ruled that a parole officer was de-
liberately indifferent for “refus[ing] to do anything however
trivial” to mitigate the known risk that his parolee would be
subjected to parole conditions beyond the expiration of her
parole. 786 F.3d at 605–06. Similarly here, Sabo alleges that
Hicks and Haley “failed to take any steps to correct his pa-
tently illegally long term of probation[,]” despite “realiz[ing]
that there were judgments of convictions that they had ana-
lyzed . . . that contained unlawfully long terms of probation.”
See id. That sufficiently alleges a constitutional deprivation
under our caselaw. 3
3 The dissenting opinion would apparently characterize Hicks’s and
Haley’s conduct as a violation of state law rather than the Constitution, an
argument that relies upon Wells v. Caudill, 967 F.3d 598 (7th Cir. 2020). But
that case is easily distinguishable because it involved a dispute over an
unsettled question of state law. See id. at 600 (whether Illinois law permit-
ted multiple pretrial-detention credits to be applied to defendant detained
on multiple charges). Here, there is neither an unsettled question of state
law nor even a dispute over Sabo’s proper sentence: Everyone agrees that
Sabo’s probation term exceeded the statutory maximum. And as we
10 No. 21-3332
Sabo alleges that Hicks and Haley failed to take any steps
in response to their known error. Sabo is not alleging, as the
dissenting opinion’s duty analysis implies, that corrections
officials are, as a general matter, deliberately indifferent for
failing to correct excessive probation terms. This distinction
draws Sabo’s case even closer to Hankins, where the parole
officer’s liability was based on his failure to do anything to
ensure he was enforcing the correct probation term, not on his
failure to adjust the date the term expired—something he had
no power to do. See id. Likewise, Hicks and Haley cannot be
liable for failing to do something that they had no power to
do (for example, enter a court order), but the fact that their
responsibilities included correcting sentencing errors gives
rise to the inference that they could have done something to
prompt the correction of Sabo’s sentence once they realized
their mistake. See id. Further supporting that inference, Erick-
son was told that the Department of Corrections was “no
longer commuting” excessive probation terms in 2018, imply-
ing that there had been an opportunity to commute Sabo’s
sentence at some time prior. And if, as Sabo alleges, Hicks and
Haley failed to take any action within their power to correct
the error that they knew they had made, his unlawfully long
probation was a reasonably foreseeable result of that failure.
The defendants argue that even if Hicks and Haley knew
“as a statistical matter” that some number of “unidentified in-
dividuals” were “likely issued some unlawful terms of pro-
bation,” this could not constitute deliberate indifference be-
cause it was merely “knowledge of a general likelihood of
explained in Wells, “keeping a person in [custody] beyond the end of his
term violates the Eighth Amendment . . . when the proper length is uncon-
tested.” Id. at 602 (emphasis added).
No. 21-3332 11
errors” and not specific knowledge that Sabo’s sentence was
incorrect.
In Perrault, the case relied on by the defendants, the dis-
trict court concluded that the plaintiff, also serving an unlaw-
fully long Wisconsin probation term, had merely alleged that
the defendants (who included Hicks and Haley) “were aware
of a risk of unlawful sentences generally; not that they were
aware of a specific risk that [the plaintiff’s] sentence was un-
lawful.” 2016 WL 126918, at *3. But Sabo’s complaint alleges
that Hicks and Haley had more than a knowledge of a “risk
of unlawful sentences generally.” Rather, Sabo alleges that
they had actual knowledge that a specific group of people—
probationers whose sentences they had reviewed under the
wrong standard between 2003 and 2005—were at a substan-
tial risk of serving unlawfully long probation terms. Their fail-
ure to identify the specific individuals in this group who were
affected does not, Sabo argues, immunize them from liability.
We agree. We have previously rejected the argument that
deliberate indifference requires knowledge of risk to a specific
person. In Brown v. Budz, involving a claim that prison offi-
cials had been deliberately indifferent by failing to protect a
white prisoner from another prisoner known to be violent to-
wards whites, we held that “a deliberate indifference claim
may be predicated on custodial officers’ knowledge that a
specific individual poses a heightened risk of assault to even a
large class of detainees—notwithstanding the officials’ failure or
inability to comprehend in advance the particular identity of
this individual’s ultimate victim.” 398 F.3d 904, 915 (7th Cir.
2005) (emphasis added). That decision followed Farmer, see id.
at 913, where the Supreme Court explained that a prison offi-
cial may not escape liability “by showing that, while he was
12 No. 21-3332
aware of an obvious, substantial risk[,] he did not know that
the complainant was especially likely to [suffer the conse-
quences of that risk,]” Farmer, 511 U.S. at 843. As the Court
elaborated, “it does not matter” whether the risk exists for
“reasons personal to [the prisoner] or because all prisoners in
his situation face such a risk.” Id.
Like the prisoners in Brown and Farmer, Sabo was part of
“an identifiable group” facing a known, heightened risk of
cruel and unusual punishment—in this case, an unlawfully
long probation term. See 398 F.3d at 914–15; 511 U.S. at 843.
As alleged, Hicks and Haley knew of the heightened risk to
that class and did nothing after they realized their error. As in
Brown and Farmer, the defendants’ failure to identify the spe-
cific probationers who might be harmed by that error does not
prevent constitutional liability.
Sabo has therefore stated a claim of deliberate indifference
against Hicks and Haley.
B. Hicks and Haley are not entitled to qualified im-
munity at this juncture
Hicks and Haley argue that even if Sabo has stated a claim
of deliberate indifference they should be entitled to qualified
immunity. “The doctrine of qualified immunity protects gov-
ernment officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(cleaned). To be clearly established, “a right must be specific
to the relevant factual context of a cited case,” but “the very
action in question need not have previously been held unlaw-
ful for a public official to have reasonable notice of the
No. 21-3332 13
illegality of some action.” Figgs, 829 F.3d at 906 (cleaned).
While the case need not be “directly on point for a right to be
clearly established,” it “must have placed the statutory or con-
stitutional question beyond debate.” Kisela v. Hughes, 584 U.S.
100, 104 (2018). We have said that is a “high bar.” Lopez v. Sher-
iff of Cook Cnty., 993 F.3d 981, 988 (7th Cir. 2021).
Relying on Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989),
and Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985), Sabo
argues that he had a clearly established right to avoid an un-
lawfully long sentence due to the failure of corrections offi-
cials to correct—or at the very least, investigate—known sen-
tencing errors. In Sample, a corrections official whose job was,
in part, reviewing the computation of sentences was informed
by the plaintiff that his sentence had been vacated and he
“should be out of jail.” 885 F.2d at 1104. Despite this, the offi-
cial did nothing, nor did he refer the problem to anyone else.
Id. at 1105. The Third Circuit found this was enough to sup-
port a claim of deliberate indifference. Id. at 1118–19.
Similarly, the plaintiff in Haygood wrote a letter to his war-
den questioning his sentence and demanding his release,
which was forwarded to two “Records Officers” at the Cali-
fornia Department of Corrections. 769 F.2d at 1353. The Ninth
Circuit affirmed liability for the record office defendants be-
cause “after being put on notice, [they] simply refused to in-
vestigate a computational error,” which was enough to find
deliberate indifference. Id. at 1355 (quoting Haygood v.
Younger, 527 F. Supp. 808, 823 (E.D. Cal. 1981)).
The defendants contend that both Sample and Haygood are
factually distinguished: they note that, in both cases, the
plaintiff himself informed corrections officials of the sentenc-
ing error, but Hicks and Haley became aware of the probation
14 No. 21-3332
term issue on their own. As the defendants see it, Sabo cannot
point to any sufficiently “particularized decisions” that could
have put Hicks and Haley “on notice that corrections officers,
who review state court sentences, act with deliberate indiffer-
ence if they determine that they had misunderstood a sen-
tencing statute but do not re-review the state court’s prior
judgments in order to detect and notify the state courts of its
errors.”
We disagree. We previously recognized in Figgs v. Dawson
that Sample and Haygood clearly established that failure to in-
vestigate a complaint that an inmate is being held longer than
the lawful term of his sentence can constitute deliberate indif-
ference under the Eighth Amendment. 829 F.3d at 906. In
Figgs, a recordkeeper with the Illinois Department of Correc-
tions was informed by a prisoner that his sentence had been
miscalculated but the recordkeeper took no action to investi-
gate or correct the error. Id. at 900–01. We held that the record-
keeper was not entitled to qualified immunity because
“closely analogous” cases, including Sample and Haygood, had
clearly established the obligation of corrections officials—and
recordkeepers in particular—to investigate unlawful sen-
tences. Id. at 906.
While it is true that Sabo did not himself make Hicks and
Haley aware of his unlawfully long probation term, we must
accept at this phase that they were aware of at least some sen-
tencing errors in the identifiable class of probationers to
which Sabo belonged, and therefore had knowledge of some
“prisoner’s problem, and thus of the risk that unwarranted
punishment was being, or would be, inflicted.” Sample, 885
F.2d at 1110. We can see no reason why the source of the
knowledge of a constitutional risk is relevant when there is a
No. 21-3332 15
clearly established constitutional duty to address that known
risk. To be sure, unlike the officials in Sample and Haygood, the
defendants here did not know the “identity of . . . [the] ulti-
mate victim[s]” of that known risk of unlawfully long proba-
tion sentences. Brown, 398 F.3d. at 915. But their failure to as-
certain the identities of those affected by their mistake does
not put their obligation to investigate the risk up for debate.
See Kisela, 584 U.S. at 104.
The dissenting opinion distinguishes Sabo’s case from
Sample and Haygood on the additional ground that the risk to
the plaintiffs in those cases was unlawful terms of incarcera-
tion, rather than probation. But as our caselaw makes clear,
that is a distinction without a difference: Probationers have an
Eighth Amendment right against excessive probation terms.
See Hankins, 786 F.3d at 605 (“Parole is a form of custody. . . .
A lawless extension of custody is certainly unusual, and it is
cruel in the sense of being imposed without any legal author-
ity.”).
As a final note, we have observed that in some “rare”
cases, the law can be “clearly established” even without an
analogous case if “a defendant’s conduct was so egregious
and unreasonable that . . . no reasonable [official] could have
thought he was acting lawfully.” Reed v. Palmer, 906 F.3d 540,
547 (7th Cir. 2018) (cleaned). The Supreme Court has ex-
plained that “the salient question . . . is whether the state of
the law . . . gave [defendants] fair warning that their [con-
duct] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741
(2002); see also Taylor v. Riojas, 592 U.S. 7, 8–9 (2020). As al-
leged, Hicks’s and Haley’s jobs involved reviewing and cor-
recting unlawfully long probation terms. Yet when they dis-
covered their error—one that might affect more than a
16 No. 21-3332
thousand sentences—they did nothing, not even tell someone
else of the problem. Given their responsibilities and
knowledge, their decision to do nothing at all was both egre-
gious and unreasonable.
In sum, assuming all facts and inferences in Sabo’s favor,
Hicks and Haley are not entitled to qualified immunity on the
record before us. See Hanson v. LeVan, 967 F.3d 584, 597
(7th Cir. 2020).
C. Summary judgment was appropriate for Erickson
and Hanson on the Eighth Amendment claim
Sabo also challenges the grant of summary judgment to
the probation officers, Erickson and Hanson. We review
de novo the district court’s grant of summary judgment, con-
sidering all facts and making all reasonable inferences in the
light most favorable to Sabo. Figgs, 829 F.3d at 902. Sabo main-
tains that Erickson and Hanson were deliberately indifferent
to his rights under the Eighth Amendment when they failed
to release him from his probation hold after being informed
that his sentence was unlawfully long. Sabo relies on section
973.09(2m) of the Wisconsin Statutes, which reads, in full: “If
a court imposes a term of probation in excess of the maximum
authorized by statute, the excess is void and the term of pro-
bation is valid only to the extent of the maximum term au-
thorized by statute. The term is commuted without further
proceedings.” Because his term of probation was to be “com-
muted without further proceedings,” Sabo contends, Erick-
son and Hanson were required to free him without waiting
for the sentencing judge to amend Sabo’s judgment.
The statute is silent on both the process for determining
whether a term of probation is excessive and who has the
No. 21-3332 17
power to effect a release. Sabo does not explain why, under
§ 973.09(2m), Nehring’s email was sufficient to establish the
invalidity of his probation term or why the probation
officers—rather than, for example, jail officials—were obliged
to release him. But even assuming that Erickson and Hanson
had both the authority to release Sabo from the revocation
hold before the court issued an amended judgment and some
obligation to do so under § 973.09(2m), they could not have
been deliberately indifferent to Sabo’s Eighth Amendment
rights.
A government official is deliberately indifferent when she
does nothing or takes action so ineffectual under the circum-
stances that deliberate indifference can be inferred. Figgs,
829 F.3d at 903. Erickson’s actions were far from ineffectual.
Upon learning from Sabo’s attorney that his probation term
was unlawfully long, Erickson immediately asked the Depart-
ment’s Central Records Office to review Sabo’s judgment of
conviction. After confirming the error, Erickson forwarded an
email that advised Sabo’s attorney to contact the sentencing
court. Because of Erickson’s actions, both Sabo’s attorney and
the Department contacted the sentencing court, Sabo’s judg-
ment was amended, and he was released from custody three
weeks later. Erickson’s actions (at least once Sabo succeeded
in contacting her, which was not easy) were prompt and ef-
fective, not indifferent. And Sabo does not attempt to explain
what additional actions Hanson—the supervisor—could or
should have taken.
Accordingly, Erickson and Hanson were not deliberately
indifferent to Sabo’s right to be free from cruel and unusual
punishment under the Eighth Amendment.
18 No. 21-3332
D. Summary judgment was appropriate for Erickson
and Hanson on the Fourth Amendment claim
Sabo lastly contends that once Erickson and Hanson were
informed that Sabo’s probation was invalid, his continued de-
tention became unreasonable and, therefore, the probation of-
ficers violated his Fourth Amendment rights by failing to im-
mediately release him. The only authority Sabo provides for
his contention that the Fourth Amendment required his im-
mediate release is the factually distinct Rodriguez v. United
States, involving a police dog search of a car conducted after
the completion of a traffic stop. 575 U.S. 348, 350 (2015).
We have held that state officials are not liable for holding
people in custody pursuant to a facially valid court order un-
less the custodian knows that judge refuses to make an inde-
pendent decision or there is doubt about the identity of the
detainee. See Hoffman v. Knoebel, 894 F.3d 836, 844 (7th Cir.
2018). But the state-court judge here corrected Sabo’s sentence
and there was no question of mistaken identity. Sabo does not
otherwise explain why his lawyer’s assertion that his sentence
was overly long—or the agreement of a non-attorney Depart-
ment employee—made Sabo’s continued detention unreason-
able in the face of a still-valid judgment. Erickson and Hanson
therefore cannot be liable under § 1983 for continuing to en-
force that judgment prior to its amendment. See Hernandez
v. Sheahan, 455 F.3d 772, 778 (7th Cir. 2006) (“There is no basis
for an award of damages against executive officials whose
policy is to carry out [a] judge’s orders.”).
III. Conclusion
For the reasons above we VACATE and REMAND the dis-
trict court’s dismissal of Sabo’s deliberate indifference claims
No. 21-3332 19
against Hicks and Haley for proceedings consistent with this
opinion, and we AFFIRM in all other respects.
20 No. 21-3332
ST. EVE, Circuit Judge, dissenting in part. Everyone agrees
that John Sabo’s probation term exceeded the applicable
maximum under Wisconsin law. The state court judge who
imposed Sabo’s sentence has absolute immunity, so the
question is whether employees in the Wisconsin Department
of Corrections Central Records Unit can be held personally
liable for failing to catch the error earlier. I agree with the
majority that the district court properly granted summary
judgment in favor of Megan Erickson and Barb Hanson. But
unlike the majority, I believe Sabo also failed to state an
Eighth Amendment claim against Sheri Hicks and Debra
Haley, and even if he had, qualified immunity would apply.
The majority’s qualified immunity analysis applies an
impermissibly high level of generality in direct conflict with
the Supreme Court’s directive. I respectfully dissent.
I
The district court dismissed Sabo’s claims against Hicks
and Haley for failure to state a claim. In reversing that deci-
sion, the majority devotes the bulk of its analysis to the argu-
ment that a plaintiff can state an Eighth Amendment claim by
alleging deliberate indifference toward a large class: tens of
thousands of persons whose probation sentences Hicks and
Haley reviewed under an incorrect understanding of Wiscon-
sin law, approximately 1,000–1,500 of which contained un-
lawfully long probation terms. It notes that we accept the
well-pleaded facts in Sabo’s complaint as true and draw all
reasonable inferences in his favor, see Peterson v. Wexford
Health Sources, Inc., 986 F.3d 746, 751 (7th Cir. 2021), but not
that “we need not accept as true statements of law or unsup-
ported conclusory factual allegations,” Bilek v. Fed. Ins. Co., 8
No. 21-3332 21
F.4th 581, 586 (7th Cir. 2021) (internal quotation marks omit-
ted). That is the first place Sabo’s complaint falters.
We read § 1983 against the “background of tort liability.”
Monroe v. Pape, 365 U.S. 167, 187 (1961); see also City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999).
“[T]he plaintiff in a civil rights tort action [under § 1983] bears
the burden of establishing that the defendant owed plaintiff a
duty, that the defendant breached his duties to the plaintiff,
and that his breach caused the plaintiff actual damages.” Ro-
driguez v. Woodall, 189 F. App’x 522, 527 (7th Cir. 2006) (quot-
ing Jones v. Hamelman, 869 F.2d 1023, 1031 (7th Cir. 1989)).
Herein lies Sabo’s first problem. As the majority concedes,
Sabo cannot prevail on an Eighth Amendment claim brought
under § 1983 unless the defendants owe him a duty. See, e.g.,
Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (duty to provide
humane conditions of confinement); Thomas v. Blackard, 2
F.4th 716, 719 (7th Cir. 2021) (same). But Sabo’s only allega-
tions regarding duty are conclusions of law: Hicks and Haley
“owed a duty of care to all those persons whose sentences
they reviewed, including John Sabo, to note any terms of pro-
bation that exceeded the maximum period permitted by law
and to correct those illegalities,” and “[o]nce they realized
that … they had been analyzing judgments of conviction in-
correctly, they owed a duty of care to take steps to review”
those judgments. We need not, and should not, take these le-
gal conclusions as true. Bilek, 8 F.4th at 586. Simply alleging
that Hicks and Haley’s job responsibilities included review-
ing probation terms does not establish that they owed a duty
under the Eighth Amendment to inmates like Sabo, as op-
posed to simply a duty under state law. See Wells v. Caudill,
967 F.3d 598, 602 (7th Cir. 2020) (“[A]n error of state law is not
22 No. 21-3332
properly rectified by deeming that error a constitutional
tort.”).
Contrary to the majority’s assertion, I do not take issue
solely with Sabo’s failure to plead facts with respect to a duty.
The bigger problem is that no legal authority imposes a duty
on administrative state employees under the Eighth Amend-
ment of the Constitution to check tens of thousands of sen-
tences just in case a state court handed down an inaccurate
one. Even if this was part of the defendants’ job description,
failure to fully perform the duties of one’s job does not, on its
own, create a constitutional violation. See Hunter v. Mueske, 73
F.4th 561, 567 n.1 (7th Cir. 2023). Indeed, we have recognized
on essentially identical allegations against these same defend-
ants that “even if Wisconsin law imposed a duty on any of
these defendants to question the judgment” of a sentencing
court, failure to recognize a sentencing error in such an in-
stance is merely negligent, and “negligent conduct does not
violate the Constitution.” Perrault v. Wis. Dep’t of Corr., 669 F.
App’x 302, 303 (7th Cir. 2016).
Even assuming Hicks and Haley owed Sabo a duty when
they initially reviewed his file, he must also show that they
were not just negligent, but deliberately indifferent to a seri-
ous risk that his probation term was excessive. See Huber v.
Anderson, 909 F.3d 201, 208 (7th Cir. 2018) (deliberate indiffer-
ence “requires more than negligence or even gross negli-
gence; a plaintiff must show that the defendant was essen-
tially criminally reckless, that is, ignored a known risk”). Sabo
does not allege that Hicks and Haley knew their interpreta-
tion of state law was wrong when they reviewed his sentence.
Indeed, Sabo concedes that their original error “was probably
just negligence, not deliberate indifference to a known risk.”
No. 21-3332 23
Thus, Sabo’s claim can only be based on the failure to revisit
his file after the fact.
Did Hicks and Haley have an affirmative duty to double-
check sentences already calculated and imposed by a state
court, without some knowledge of a risk of an inaccurate cal-
culation for a particular person? Sabo’s only allegation in sup-
port of this proposition is that Hicks and Haley had a duty to
retroactively correct mistaken probation terms. Again, we
should not accept this legal conclusion. Bilek, 8 F.4th at 584.
Sabo cites no Seventh Circuit case in support of this duty,
without which “it is hard to see why we should read federal
law to expose state officials to damages if a federal court, in
retrospect, concludes that [those officials] have made errors of
state law.” Wells, 967 F.3d at 601. In fact, neither we nor any
other court has ever said that an administrative corrections
employee tasked with reviewing sentences owes a duty to
every person under sentence such that a failure to correct a
miscalculation, without any notice of a specific mistake in a
particular person’s record, amounts to a constitutional viola-
tion.
To be sure, deliberate indifference to the risk that an in-
mate is serving an “unlawfully prolonged” period of impris-
onment as a result of a probation violation that occurs after
the probation term should have ended violates the Eighth
Amendment. See Huber, 909 F.3d at 206–08. But that does not
mean officials always violate the Constitution if they miscal-
culate the length of a probation term under state law or fail to
go back and look for earlier errors. Cf. Wells, 967 F.3d at 602
(“[K]eeping a person in prison beyond the end of his term vi-
olates the Eighth Amendment … when the proper length is
24 No. 21-3332
uncontested.” (emphasis added)). * Only when such an admin-
istrative official is alerted to a specific error—rather than a po-
tential error somewhere in tens of thousands of sentences—
have we or any other court found that the Eighth Amendment
imposes a duty to investigate. See Figgs v. Dawson, 829 F.3d
895, 906 (7th Cir. 2016); Sample v. Diecks, 885 F.2d 1099, 1118–
19 (3d Cir. 1989); Haygood v. Younger, 769 F.2d 1350, 1355 (9th
Cir. 1985) (en banc). The majority’s contrary conclusion rec-
ognizes an Eighth Amendment claim for failing to pull the
needle from a haystack.
The out-of-circuit cases Sabo attempts to use to establish a
duty reveal another problem with his claims against Hicks
and Haley: causation. In Sample v. Diecks, a former inmate
sued a senior records officer who miscalculated the time he
had already served on another conviction, causing the plain-
tiff to spend an additional nine months in prison. 885 F.2d at
1102–03. Critically, the officer proximately caused the pro-
longed period of incarceration: after the plaintiff was granted
bail pending a new trial, he personally spoke with the defend-
ant about his situation, and the defendant informed the prison
that the inmate was not eligible for release. The Third Circuit
* The majority asserts that Sabo alleges it was the defendants’
“fail[ure] to take any steps in response to their known error” that gives rise
to the constitutional violation. But in fact, Sabo alleges that their only duty,
even after discovering their misunderstanding, was “to take steps to re-
view the unlawful judgments of conviction and correct the illegalities.”
Even after Hicks and Haley discovered their misunderstanding, it was the
court’s judgment, not their own mistakes, that they had a responsibility to
correct, according to Sabo. Nevertheless, these distinctions do not matter
because Sabo’s allegations of duty owed are legal conclusions, not factual
assertions, and we need not presume them to be true at the pleading stage.
No. 21-3332 25
held that the defendant was liable under the Eighth Amend-
ment because he “had the responsibility to review inmates’
sentencing status and the authority to direct the release of in-
mates whose time had been served.” Id. at 1110. The court em-
phasized that to succeed on such a claim, “the plaintiff must
demonstrate a causal connection between the official’s response
to the problem and the infliction of the unjustified detention.”
Id. (emphasis added).
Sabo repeatedly asserts that Haley and Hicks proximately
caused his prolonged probation, but his allegations do not
support that conclusion. Twelve years passed between the
time Haley and Hicks discovered their mistaken interpreta-
tion of state law and the time Sabo’s probation should have
ended. Hicks and Haley may have been a but-for cause of the
excessive probation term appearing in prison records (alt-
hough the blame ultimately rests with the sentencing judge),
but in the intervening years, Sabo or his attorney could have
asked the state court to correct his sentence. See Hunter, 73
F.4th at 567–68 (noting that a superseding cause may ”sever
the defendant’s liability”). Unlike in Sample, where the de-
fendant had reason to believe the plaintiff’s sentence was ex-
cessive, Sabo alleges only a generalized duty to review in-
mates’ files, not any facts suggesting Hicks and Haley had
reason to revisit his file in particular. See also Haygood, 769 F.2d
at 1352, 1355 (finding deliberate indifference where the plain-
tiff put the defendants on notice about an error in his sen-
tence). These allegations do not support the conclusion that
Hicks and Haley’s failure to notice and correct the error in
Sabo’s probation sentence proximately caused his unlawful
incarceration.
26 No. 21-3332
The majority attempts to align this case with Hankins v.
Lowe on the grounds that an allegation that the defendant
“fail[ed] to do anything to ensure that he was enforcing the
correct term” was sufficient to state a claim for deliberate in-
difference under the Eighth Amendment. But Hankins is
clearly distinguishable because Hankins specifically asked
her parole officer when her parole would expire, and he re-
fused to tell her. 786 F.3d 603, 604 (7th Cir. 2015). In fact, not
only would he not tell her when her parole expired, he told
her, “Arkansas would determine when it expired and would
revoke her parole if she asked the Arkansas authorities for the
date.” Id. Under those facts, we found that the parole officer
“must have realized that he had to find out when his parolee’s
parole would expire, since she didn’t know and he had forbidden
her to inquire of the Arkansas authorities.” Id. at 605–06 (empha-
sis added). In that case, the parole officer had specific
knowledge of a particular risk to Hankins and even affirma-
tively denied her any information, prohibited her from seek-
ing it out, and then refused to learn the date himself. This is a
far cry from Hicks and Haley, who were not the only source
of information for probation information, who did not deny
Sabo access to any information, and who received no specific
inquiry into Sabo’s probationary period.
By looking past the flaws in Sabo’s complaint, the majority
fails to grapple with serious issues of duty, causation, and de-
liberate indifference. More concerning, it expands Eighth
Amendment liability to anyone that “could have done some-
thing to prompt the correction of” a mistake that led to a con-
stitutional violation.
No. 21-3332 27
II
Assuming for the sake of argument that Sabo pleaded a
viable Eighth Amendment claim, he cannot overcome quali-
fied immunity. Qualified immunity shields government offi-
cials from damages liability unless they violated clearly estab-
lished law. See Pearson v. Callahan, 555 U.S. 223, 231 (2009);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly
established if it is “dictated by ‘controlling authority’ or ‘a ro-
bust consensus of cases of persuasive authority.’” District of
Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 741–42 (2011)). “The precedent must be
clear enough that every reasonable official would interpret it
to establish the particular rule the plaintiff seeks to apply.” Id.
The Supreme Court has “repeatedly told courts not to define
clearly established law at too high a level of generality,” City
of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (per curiam), “since
doing so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced,” Wesby, 583 U.S. at 63–64.
The majority holds that factual issues preclude resolving
whether Hicks and Haley are entitled to qualified immunity
at this stage. To be sure, “the motion-to-dismiss stage is rarely
the most suitable procedural setting to determine whether an
official is qualifiedly immune,” Roldan v. Stroud, 52 F.4th 335,
339 (7th Cir. 2022) (internal quotation marks omitted), and
defendants may raise the defense at later stages even if
immunity is denied on the pleadings. Behrens v. Pelletier, 516
U.S. 299, 305–07 (1996). But qualified immunity shields
government officials from the burdens of litigation as well as
liability, id. at 306, so we may deny qualified immunity at the
motion-to-dismiss stage only if “the facts, taken in the light
28 No. 21-3332
most favorable to the plaintiff, show that the defendants
violated a constitutional right” that “was clearly established
at the time of the alleged violation,” Campbell v. Kallas, 936
F.3d 536, 545 (7th Cir. 2019) (cleaned up).
The rule of law the majority claims Hicks and Haley may
have violated comes from Figgs, which held that out-of-circuit
decisions including Sample and Haygood “clearly established
… that 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.” 829 F.3d
at 906. Maybe so, viewed at that level of generality. But when
we consider the particular facts of this case, crucial distinc-
tions emerge. In all three of the earlier cases, the defendants
were on notice that there was a problem with the particular
plaintiff’s sentence. Id. at 899–900 (plaintiff submitted com-
plaints about sentence miscalculation); Sample, 885 F.2d at
1104 (plaintiff told defendant he should be “out of jail”);
Haygood, 769 F.2d at 1353 (plaintiff sent defendant a letter).
Here Hicks and Haley had no notice about Sabo’s unlawful
probation term. Additionally, in the previous cases, the risk
to which the defendants were deliberately indifferent was that
the plaintiff was unlawfully incarcerated based on a sentencing
error, while the risk here is a level removed. Hicks and Haley
were aware that perhaps 1,000–1,500 of the tens of thousands
of sentences they reviewed may have contained unlawfully
long probation terms, creating a risk that defendants might
serve excessive probation sentences. That risk would only re-
sult in unlawful imprisonment if such a defendant violated a
term of his probation and the state pursued that violation, as
happened to Sabo.
No. 21-3332 29
The majority reasons that Hicks and Haley’s undisputed
lack of notice that Sabo’s probation term was excessive does
not undermine the possibility that Hicks and Haley violated
clearly established law. This conclusion flows from the major-
ity’s reading of Figgs to clearly establish “the obligation of cor-
rections officials—and recordkeepers in particular—to inves-
tigate unlawful sentences.” That rule, however, is nowhere to
be found in Figgs. There, we held that a prison official violates
the Eighth Amendment if she “fail[s] to investigate the sub-
stance of [an inmate’s] complaints” and that “the failure to in-
vestigate a claim that an inmate is being held longer than the
lawful term of his sentence” was a clearly established Eighth
Amendment violation. 829 F.3d at 906 (emphases added).
Figgs was about a prison official’s obligation to respond to an
issue with a particular inmate’s sentence. Accord Sample, 885
F.2d at 1110 (finding an Eighth Amendment violation when
prison official with knowledge of the plaintiff’s problem and
the power and duty to fix it fails to take action); Haygood, 769
F.2d at 1355 (holding that Eighth Amendment liability is ap-
propriate where the defendant is on notice of an erroneous
sentence). Figgs, in other words, was about notice.
The majority’s leap from the facts of Figgs is not its only
logical flaw. Its analysis also elides an important factual dis-
tinction between those cases and this one. In Figgs, Sample,
and Haygood, the plaintiff was imprisoned beyond his lawful
term of incarceration. But this case concerns an unlawfully
long term of probation, which turns into incarceration only if
the defendant at some future time violates the terms of his
probation, as Sabo did here. I do not mean to suggest that sen-
tencing a defendant to an excessive term of probation is not
serious, but the qualified immunity doctrine requires us to
30 No. 21-3332
mind distinctions like these when considering whether the
law is clearly established.
The majority is correct that our caselaw treats probation as
a form of custody. But that does not collapse the factual dif-
ferences between Sample and Haygood and the case before us
for purposes of qualified immunity. The Supreme Court has
repeatedly warned that to deny qualified immunity, a case
must be factually similar so as to put a reasonable person on
notice of a constitutional violation. See, e.g., Kisela v. Hughes,
584 U.S. 100, 106–08 (2018) (per curiam).
The majority ignores that warning and concludes it is im-
possible to resolve the qualified immunity question at this
stage because it “can see no reason why the source of the
knowledge of a constitutional risk is relevant when there is a
clearly established constitutional duty to address that known
risk.” But that analysis comes at an impermissibly high level
of generality. As a result, three cases holding that officials
must respond to a specific inmate’s complaint that he is being
wrongfully imprisoned have enlarged into a rule that state
administrative employees must review tens of thousands of
sentences or face personal liability if a judge imposed an ex-
cessive probation term. That is not how the Supreme Court
has instructed us to apply qualified immunity—the cases the
majority relies on do not put the unconstitutionality of Hicks
and Haley’s conduct “beyond debate.” Id. at 104–05 (internal
quotation marks omitted). By extending these cases to require
prison officials to investigate all sentences regardless of any
specific notice, the majority does exactly what the Supreme
Court has directed us not to do—it casts the law at too high a
level of generality to give officials proper notice of an obliga-
tion to investigate even without a specific complaint.
No. 21-3332 31
Indeed, Perrault makes clear that the legality of Hicks and
Haley’s conduct is, at the very least, debatable. 669 F. App’x
at 302–03. In Perrault, we deemed an inmate’s appeal frivolous
when he alleged that employees at the Wisconsin Department
of Corrections—including Hicks and Haley—were deliber-
ately indifferent for failing “to check the accuracy of the sen-
tence pronounced by the state judge” because those allega-
tions suggested at most negligence. Id. at 303. The majority’s
attempt to distinguish Perrault on the ground that Sabo
pleaded his claim better than Perrault fails because there is no
meaningful difference between the factual allegations in the
two cases.
In Perrault, as here, Hicks and Haley were named defend-
ants. Specifically, Perrault, who was proceeding pro se, al-
leged that Hicks and Haley were deliberately indifferent:
• Haley “attended a training session … where
she learned” that three years was the maxi-
mum term of probation, and she was “re-
quired to share this information with …
Hicks ….” ¶¶ 450–51.
• “Haley and Hicks realized apparently that
they were not checking judgments … with
this limitation in mind.” ¶ 452.
• “Haley was aware that … [if] an unlawfully
longer [probation] period” was not “cor-
rected by her, there would assuredly be a
risk that the offender would be serving a
longer sentence than permitted by law ….”
¶ 454; accord ¶ 455 (Hicks).
32 No. 21-3332
Liberally construed, Perrault alleged Hicks and Haley had
actual knowledge of a substantial risk that sentences they had
reviewed under their incorrect reading of state law contained
unlawfully long probation terms. But despite the generous
standard of review, we concluded not only that Perrault had
failed to allege a plausible constitutional violation, but that his
claim was frivolous because it indicated at most negligence on
Hicks and Haley’s part. Perrault, 669 F. App’x at 303. The ma-
jority fails to address why Sabo’s substantially similar factual
allegations preclude Hicks and Haley from qualified immun-
ity.
The majority’s alternative holding on qualified immun-
ity—that Hicks and Haley’s “conduct was so egregious and
unreasonable that … no reasonable [official] could have
thought [s]he was acting lawfully,” Reed v. Palmer, 906 F.3d
540, 547 (7th Cir. 2018) (internal quotation marks omitted)—
is likewise flawed. The “obviousness” doctrine applies in
cases involving conduct far more extreme than what Sabo al-
leges Hicks and Haley did here. See, e.g., Taylor v. Riojas, 141
S. Ct. 52, 53–54 (2020) (per curiam) (finding an obvious viola-
tion where prison officials intentionally confined an inmate to
frigid cells covered in feces for six days); Hope v. Pelzer, 536
U.S. 730, 741–42 (2002) (finding an obvious violation where
prison guards handcuffed an inmate to a hitching post out-
side for seven hours); Stockton v. Milwaukee Cnty., 44 F.4th 605,
620–21 (7th Cir. 2022) (finding an obvious violation where a
prison guard deliberately caused an inmate in “debilitating
medical distress” to fall and hit his head). It is even more dif-
ficult to apply the obviousness doctrine where we have found
similar allegations to fall short of stating a claim. Perrault, 669
F. App’x at 303.
No. 21-3332 33
In the end, the majority fails to explain how Hicks and Ha-
ley are not at the very least entitled to qualified immunity
when Perrault, the most factually similar case, found no con-
stitutional violation. In light of Perrault, it is hard to see how
the alleged violation here was clearly established in law when
we found an appeal involving similar allegations against the
same defendants “frivolous.”
* * *
The district court’s rulings should be affirmed in all re-
spects. Sabo did not plead a plausible Eighth Amendment
claim against Hicks and Haley, and even if he had, the de-
fendants would be entitled to qualified immunity because
there is no clearly established right to have correctional em-
ployees unilaterally review judgments of conviction for errors
in probation sentences. I respectfully dissent.