Petition for Writ of Certiorari — Oberist Lee Saunders, Petitioner v. Wayne Ivey, Sheriff, Brevard County, Florida, et al.

Supreme Court briefDec 13, 2018

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No. 18-_____

IN THE

Supreme Court of the United States

OBERIST LEE SAUNDERS,

Petitioner,

SHERIFF OF BREVARD COUNTY, IN HIS OFFICIAL CAPACITY;

SUSAN JETER, IN HER OFFICIAL CAPACITY; JOHN C. WRIGHT,

IN HIS INDIVIDUAL CAPACITY; AND PATRICIA TILLEY, IN HER

INDIVIDUAL CAPACITY,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the

Eleventh Circuit

Petition for Writ of Certiorari

SARAH G. BOYCE

Counsel of Record

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1107

Sarah.Boyce@mto.com

STEPHANIE G. HERRERA

MUNGER, TOLLES & OLSON LLP

560 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 512-4063

Stephanie.Herrera@mto.com

COLEMAN W. WATSON

WATSON LLP

189 S. Orange Street,

Suite 810

Orlando, FL 32801

(407) 377-6634

coleman@watsonllp.com

QUESTIONS PRESENTED

The Eleventh Circuit granted qualified immunity

to several Brevard County Jail officials on

Petitioner’s Fourteenth Amendment claim that he

was subjected to appalling and inhumane conditions

of confinement while in pretrial detention.

Specifically, Petitioner alleged that he, with as many

as seven other men, was confined in a cell that was

covered in human excrement and bodily fluids,

infrequently

and

ineffectively

cleaned,

and

inadequately cooled and ventilated. These conditions

were exacerbated by the lack of ready access to soap,

toilet paper, and eating utensils, and the fact that

Petitioner was forced to sleep on a mat directly on the

waste-covered floor, so that Petitioner was eating,

sleeping, and living with constant exposure to human

waste. In fact, these conditions were so severe that,

on one occasion, they induced a panic attack, causing

Petitioner to repeatedly bang his head against a

metal doorframe until he needed stitches.

Respondent Corporal John Wright watched the entire

episode and laughed.

The case presents two questions:

(1) Whether, consistent with Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015), a

Fourteenth

Amendment

conditions-ofconfinement claim brought by a pretrial

detainee should be evaluated under an objective

or subjective standard, a question on which the

federal courts of appeals have split.

(2)

Whether, at the time of Petitioner’s

confinement, the right of a detainee not to be

confined in conditions lacking basic sanitation

was clearly established under Hutto v. Finney,

437 U.S. 678 (1978), Rhodes v. Chapman, 452

U.S. 337 (1981), and myriad court of appeal

decisions, or, alternatively, whether Petitioner’s

conditions of confinement were so obviously

unconstitutional that any reasonable officer

would have recognized them as such.

iii

PARTIES TO THE PROCEEDING BELOW

Petitioner is Oberist Lee Saunders. Respondents

are Sheriff of Brevard County, in his official capacity;

Susan Jeter, in her official capacity; John C. Wright,

in his individual capacity; and Patricia Tilley, in her

individual capacity.

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION........................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................... 1

STATEMENT OF THE CASE..................................... 2

Petitioner Endures Horrifying

Conditions For 65 Days .......................... 5

The District Court Denies

Qualified Immunity, But The

Eleventh Circuit Reverses ..................... 7

REASONS FOR GRANTING THE WRIT ................ 11

The Decision Below Exacerbated an

Entrenched Circuit Split By Erroneously

Applying a Subjective Standard to

Petitioner’s Fourteenth Amendment

Claims.............................................................. 13

Kingsley Is This Court’s Latest

Decision Applying an Objective

Standard to Constitutional

Claims Brought by Pretrial

Detainees .............................................. 14

Three Courts of Appeals Have

Confirmed That Kingsley

Requires an Objective Standard

for Claims Brought by Pretrial

Detainees .............................................. 17

II.

Four Courts of Appeals Have

Declined To Extend Kingsley

Beyond Excessive-Force Claims .......... 21

This Court Should Grant

Certiorari To Resolve the Split in

Favor of an Objective Standard ........... 23

The Eleventh Circuit’s Qualified

Immunity Ruling Flouts Decades of

Precedent in This Court and the Courts

of Appeals, and Ignores an Obvious

Constitutional Violation ................................. 25

Depriving a Detainee of Basic

Sanitation and Hygiene Clearly

Violates the Constitution Under

Decades-Old Precedent ........................ 26

Petitioner Was Confined in

Conditions So Egregious That

Any Reasonable Officer Should

Have Known They Were Unlawful ...... 32

CONCLUSION .......................................................... 35

APPENDICES

APPENDIX A: Opinion of the U.S. Court of Appeals

for the Eleventh Circuit ....................................... 1a

APPENDIX B: Judgment of the U.S. Court of

Appeals for the Eleventh Circuit ....................... 39a

APPENDIX C: Order of the U.S. District Court for

the Middle District of Florida Granting Motion for

Summary Judgment ........................................... 40a

APPENDIX D: Order of the U.S. Court of Appeals for

the Eleventh Circuit Denying Rehearing .......... 64a

vii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Alderson v. Concordia Par. Corr.

Facility,

848 F.3d 415 (5th Cir. 2017) ................................ 21

Anderson v. Creighton,

483 U.S. 635 (1987) ........................................ 26, 32

Bell v. Wolfish,

441 U.S. 520 (1979) .................................. 11, 14, 15

Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) ............................ 27

Brooks v. Warden,

800 F.3d 1295 (11th Cir. 2015) .......... 28, 32, 33, 34

Brosseau v. Haugen,

543 U.S. 194 (2004) .................................. 13, 25, 34

Budd v. Motley,

711 F.3d 840 (7th Cir. 2013) ................................ 28

Campbell v. Beto,

460 F.2d 765 (5th Cir. 1972) ................................ 28

Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016), cert.

denied sub nom. Los Angeles County

v. Castro,

137 S. Ct. 831 (2017) ................................ 17, 18, 19

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Chandler v. Baird,

926 F.2d 1057 (11th Cir. 1991) ................ 13, 27, 30

Chandler v. Crosby,

379 F.3d 1278 (11th Cir. 2004) ........................ 9, 13

Dang ex rel. Dang v. Sheriff, Seminole

County Fla.,

871 F.3d 1272 (11th Cir. 2017) ................ 21, 22, 23

Darnell v. Pineiro,

849 F.3d 17 (2d Cir. 2017) .............................. 17, 18

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) ............................................ 25

Estelle v. Gamble,

429 U.S. 97 (1976) ................................................ 26

Farmer v. Brennan,

511 U.S. 825 (1994) .............................................. 14

Fruit v. Norris,

905 F.2d 1147 (8th Cir. 1990) .............................. 29

Gordon v. County of Orange,

888 F.3d 1118 (9th Cir. 2018) ........................ 17, 19

Hite v. Leeke,

564 F.2d 670 (4th Cir. 1977) ................................ 28

Hope v. Pelzer,

536 U.S. 730 (2002) .......................................passim

TABLE OF AUTHORITIES

(continued)

Page(s)

Howard v. Adkison,

887 F.2d 134 (8th Cir. 1989) ................................ 29

Hutto v. Finney,

437 U.S. 678 (1978) .......................................... 2, 26

Ingraham v. Wright,

430 U.S. 651 (1977) .............................................. 14

Inmates of Occoquan v. Barry,

844 F.2d 828 (D.C. Cir. 1988) .............................. 28

Izumi Seimitsu Kogyo Kabushiki Kaisha

v. U.S. Philips Corp.,

510 U.S. 27 (1993) ................................................ 11

Jacoby v. Baldwin County,

835 F.3d 1338 (11th Cir. 2016) ............................ 11

Keenan v. Hall,

83 F.3d 1083 (9th Cir. 1996), opinion

amended on denial of reh’g,

135 F.3d 1318 (9th Cir. 1998) .............................. 29

Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015) ...................................passim

LaReau v. MacDougall,

473 F.2d 974 (2d Cir. 1972) .................................. 29

McBride v. Deer,

240 F.3d 1287 (10th Cir. 2001) ............................ 29

TABLE OF AUTHORITIES

(continued)

Page(s)

McCray v. Sullivan,

509 F.2d 1332 (5th Cir. 1975) ........................ 29, 30

Miranda v. County of Lake,

900 F.3d 335 (7th Cir. 2018) .......................... 17, 20

Mullenix v. Luna

136 S. Ct. 305 (2015) ............................................ 26

Novak v. Beto,

453 F.2d 661 (5th Cir. 1971) ................................ 28

Nyhuis v. Reno,

204 F.3d 65 (3d Cir. 2000) .................................... 29

Parrish v. Johnson,

800 F.2d 600 (6th Cir. 1986) ................................ 28

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 25

Rhodes v. Chapman,

452 U.S. 337 (1981) .............................................. 26

Richmond v. Huq,

885 F.3d 928 (6th Cir. 2018) ................................ 21

Stickley v. Byrd,

703 F.3d 421 (8th Cir. 2013) ................................ 28

Tolan v. Cotton,

572 U.S. 650 (2014) ........................................ 25, 27

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Lanier,

520 U.S. 259 (1997) ........................................ 31, 32

Whitney v. City of St. Louis,

887 F.3d 857 (8th Cir. 2018),

rehearing and rehearing en banc

denied (8th Cir. June 14, 2018)...................... 21, 22

Wilson v. Seiter,

501 U.S. 294 (1991) .................................. 15, 19, 31

Wright v. McMann,

387 F.2d 519 (2d Cir. 1967) .................................. 29

Young v. Quinlan,

960 F.2d 351 (3d Cir. 1992) .................................. 29

FEDERAL STATUTES

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 1983..................................................passim

PETITION FOR A WRIT OF CERTIORARI

Petitioner Oberist Lee Saunders respectfully petitions for a writ of certiorari to review the decision of

the United States Court of Appeals for the Eleventh

Circuit.

OPINIONS BELOW

The opinion of the court of appeals is unpublished,

but available at App. 1a. The order of the court of

appeals denying rehearing en banc, App. 64a, is not

yet reported. The opinion of the district court is unpublished, but available at App. 40a.

JURISDICTION

The judgment of the court of appeals was entered

on May 17, 2018. A timely petition for rehearing and

rehearing en banc was filed on June 7, 2018, and denied on July 16, 2018. On September 18, 2018, Justice Thomas extended the time within which to file a

petition for a writ of certiorari to and including December 13, 2018. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State … subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for

redress….

STATEMENT OF THE CASE

Fifty years ago, this Court held that confining

prisoners in “filthy, overcrowded cell[s]” is

unconstitutional. Hutto v. Finney, 437 U.S. 678, 686–

87 (1978). In the decades since, this Court and the

courts of appeals have consistently and uniformly

reaffirmed that detainees have a constitutional right

to basic sanitation. These decisions provide ample

guidance to state officials as to illegal confinement

practices and make clear that forcing a detainee to

endure prolonged exposure to human waste—

particularly without access to basic hygiene items

such as soap and toilet paper—violates the

Constitution. See infra pp. 26-32.

Petitioner Oberist Lee Saunders’s conditions of

confinement were nothing short of horrifying, and

were plainly inconsistent with the standards of

decency and sanitation established by these

precedents. While he was awaiting trial, Petitioner

was held for 65 days in an overcrowded cell that was

covered in human waste, infrequently and

ineffectively cleaned, and inadequately cooled and

ventilated. He was forced to sleep on a mat that was

placed directly on the waste-splattered floor; forced to

walk barefoot through all kinds of bodily waste and

fluids; and deprived of ready access to soap, toilet

paper, or eating utensils.

Petitioner filed this § 1983 action against several

officers at the jail, including Commander Susan Jeter

and Corporal John Wright, alleging that these

deplorable conditions violated his rights under the

Fourteenth Amendment. 1 The district court denied

summary judgment with respect to these officers,

concluding that Petitioner had raised triable issues of

fact as to whether they had violated his constitutional

rights.

The Eleventh Circuit reversed, holding that the

officers were entitled to qualified immunity. The

court of appeals applied a subjective test borrowed

from this Court’s Eighth Amendment jurisprudence

and concluded that Saunders had not presented

Petitioner asserted other claims in the courts below, but raises

only his conditions-of-confinement claim in this petition.

evidence sufficient to establish that Respondents

were actually aware of the deplorable conditions in

the cell where Petitioner was housed—despite

evidence that at least one of the Respondents was

directly responsible for day-to-day oversight of the

unit.

Because the Eleventh Circuit held that

Petitioner had not satisfied this subjective test for

deliberate indifference, the court of appeals avoided

any clear holding on whether Saunders’s appalling

conditions of confinement violated the Constitution.

The Eleventh Circuit’s decision merits this Court’s

review for two reasons: First, the court’s use of the

subjective deliberate-indifference test applicable under the Eighth Amendment exacerbated an already

entrenched circuit split regarding the appropriate

standard for assessing Fourteenth Amendment

claims brought by pretrial detainees. This Court

alone can, and should, resolve the split and clarify

that, under Kingsley v. Hendrickson, 135 S. Ct. 2466

(2015), an objective standard, not a subjective one,

necessarily governs the claims of pretrial detainees.

Second, the Eleventh Circuit’s reluctance to declare the inhumane conditions in the Brevard County

Jail unconstitutional eschews longstanding precedent

from this Court that clearly establishes the right of a

prisoner not to be confined in conditions lacking basic

sanitation. This error, moreover, cannot be saved by

the court’s purported alternative holding on deliberate indifference. This Court has instructed that

where conditions of confinement are so egregious that

“the risk of harm is obvious,” the court “may infer the

existence of [a] subjective state of mind.” Hope v.

Pelzer, 536 U.S. 730, 738 (2002). Put differently, as a

prisoner’s conditions of confinement become worse

and worse, the risk of harm becomes more and more

obvious, and an official’s deliberate indifference becomes easier and easier to infer. The court of appeals

thus could not properly analyze the deliberateindifference question without first resolving whether

Petitioner’s conditions of confinement were obviously

unconstitutional.

This Court should reaffirm that the revolting conditions Petitioner experienced during his pretrial detention were clearly unconstitutional at the time of

his confinement. Our Constitution forbids treating

those who are incarcerated in a manner “antithetical

to human dignity,” Hope, 536 U.S. at 745, and the

Eleventh Circuit’s reluctance to condemn Saunders’s

dehumanizing conditions of confinement undermines

our nation’s commitment to that principle. Summary

reversal is warranted.

Petitioner Endures Horrifying

Conditions For 65 Days

Petitioner was arrested and booked at the Brevard

County Jail in June 2008. About a month and a half

into his time at the Jail, he attempted suicide. When

Saunders returned from the hospital, the Jail

transferred him to its acute mental-health housing

unit, known as “the Bubble.” App. 2a.

Conditions in the Bubble were deplorable. The

toilets would frequently overflow, and “inmates would

urinate, defecate, and ejaculate onto the cell’s floors

and walls.” App. 28a. Inmates could not avoid this

waste, as they “lived, ate, and slept ‘tightly’ ‘like

sardines’” in their cells. Id. Saunders was packed

into a cell that was, at most, 9 x 15 feet, with up to

seven other inmates. Id. In other words, when his

cell was full (as it often was), Saunders had a space of

only about 4 x 4 feet to himself.

Jail staff made passing attempts to clean the cells

twice a week, but that did not alleviate the

unsanitary conditions. App. 3a. The staff did not

sanitize or fully wipe down the cells, but instead

simply did “a quick sweep and mop.” App. 28a.

Moreover, while twice weekly cleanings “might be

adequate when a cell holds one or even two or three

healthy inmates,” cleaning so infrequently was

insufficient to sanitize a space filled with up to eight

inmates, many of whom, because of their mental

illness, “did not have proper control of their bodily

fluids.” Id. (“Urine ‘was on the floor all the time.’”).

The lack of access to basic hygiene items

aggravated the unsanitary conditions. Inmates were

provided no ready access to eating utensils, hand

soap, or toilet paper, leaving them to eat with their

unwashed hands on the filth-covered floors. App. 26a

(noting that “inmates were forced to eat with their

bare hands,” which “were likely to be exposed to

excrement”). Inmates could request these supplies,

but officers would take up to 45 minutes to provide

the items—often too long to wait to eat or use the

toilet. App. 13a. Inmates were not permitted to wear

shoes and were provided no beds, instead “sleep[ing]

on mats directly on the waste-filled floor.” App. 26a.

Having no option other than to walk through the

urine, feces, semen, and vomit covering the Bubble,

inmates would then bring those fluids directly into

their bedding, which was not replaced for months at a

time.

Id.

Apparently recognizing the gross

inadequacy of these facilities, officers would

“specially clean the cells and bring in ‘little plastic

platforms’ for inmates to sleep on ‘to get people off the

concrete’” when inspectors or other guests would

visit. App. 29a. As soon as those visitors left, the

Potemkin platforms were removed, and conditions

would return to normal. Id.

Further exacerbating these conditions was the

Bubble’s inadequate cooling and circulation. In one

instance, the air conditioning stopped working fully

for a period of up to two days. App. 20a. It was

August—in Florida—and Saunders’s cell had eight

inmates crammed inside. Saunders began to have

trouble breathing and told Wright that he was

claustrophobic and needed air flow.

App. 31a.

Wright did nothing. Saunders proceeded to have a

panic attack, during which “he repeatedly slammed

his head against a metal doorframe, resulting in a

gashed scalp and stitches.” App. 4a. Wright was

present but—rather than intervening to stop a

suicidal inmate from self-harm—Wright stood back

“with other officers watching and laughing for five

minutes.” App. 33a (emphasis added).

Saunders endured these appalling conditions for

65 days while awaiting trial.

The District Court Denies Qualified

Immunity, But The Eleventh Circuit

Reverses

In June 2014, Saunders filed a § 1983 suit against

several jail officials, including Jeter and Wright,

alleging that his conditions of confinement violated

the Fourteenth Amendment. Amended Complaint,

Saunders v. Sheriff of Brevard County, No. 6:14-cv877 (M.D. Fla. June 5, 2014).

On November 21, 2016, the district court denied

summary judgment with respect to several officers,

including Jeter and Wright.

The district court

concluded that many of the conditions that Saunders

had identified could rise to the level of a

constitutional violation, including the crowded nature

of the cell, which engendered violence among the

prisoners; the placement of detainees in cells covered

in “urine, feces, bodily fluids, and bacteria”; the

failure to provide inmates with cleaning supplies or

other items necessary for basic hygiene; and the lack

of ventilation. App. 43a, 57a–62a. Because the

district court believed that Saunders had created

triable issues of fact related to these horrific

conditions, it held that the officers responsible for the

conditions of confinement were not entitled to

qualified immunity. Id. at 61a–62a.

On May 17, 2018, a divided panel of the Eleventh

Circuit reversed.

App. 1a.

The majority

acknowledged that “the facts of this case, when

viewed in Saunders’s favor, paint a disturbing picture

of confinement in the Brevard County Jail,” and that

“cases in which the deprivation of basic sanitary

conditions … constitute[s] an Eighth Amendment

violation are plentiful.” App. 9a, 16a (ellipsis in

original) (internal quotation marks omitted). But the

majority ultimately resisted any conclusion that the

Jail’s barbaric conditions violated Petitioner’s clearly

established rights. App. 9a.

Instead, the majority focused on the question of

Respondents’ mental state. In so doing, the majority

applied a subjective test, asking whether

Respondents were “aware of facts from which the

inference could be drawn that a substantial risk of

serious harm exists” and “also dr[e]w the inference.”

App. 8a (quoting Chandler v. Crosby, 379 F.3d 1278,

1289–90 (11th Cir. 2004)). The majority announced

this standard without analyzing whether a subjective

test was appropriate for the claim of a pretrial

detainee. See id. Having announced a subjective

standard, the majority then assessed whether

Petitioner had established that Respondents had

actual knowledge of a substantial risk of serious

harm. The majority concluded that Petitioner had

not, despite the fact that Petitioner had alleged that

Respondent Wright was responsible for overseeing

the unit in which Petitioner was housed and was

regularly present in that unit. Id. at 17a–18a. The

court relied on the fact that Respondent Wright

“worked only three to four days a week” to claim that

he may have been ignorant of the pervasive filth. Id.

The court thus held that Respondents were entitled

to qualified immunity.

Judge Martin issued a vigorous dissent, urging

that the “right not to be confined in conditions lacking basic sanitation” “is a well-established constitutional right, even for prisoners.” App. 23a, 25a (quoting Brooks v. Warden, 800 F.3d 1295, 1303 (11th Cir.

2015)) (internal quotation marks and alterations

omitted). Judge Martin criticized the majority for

failing to “weigh all of [the] evidence together” and for

declining to follow “binding precedent.” App. 25a,

27a. In her view, case law from the Supreme Court

and the Eleventh Circuit made clear that “the gratuitous cruelty Mr. Saunders endured”—in the form of

unsanitary conditions and indifference to self-harm—

was clearly unconstitutional. App. 35a–38a.

Judge Martin also concluded that Petitioner had

established Respondent Wright’s deliberate indifference. App. 28a–30a. She pointed out that Respondent Wright was the primary person “responsible for

‘daily’ conditions in the pod” and was “physically present in the unsanitary cells such that he personally

observed the conditions.” App. 29a. These facts,

Judge Martin said, were sufficient to establish that

Respondent Wright had “subjective knowledge of the

risk of harm” to Petitioner. Id. Alternatively Judge

Martin concluded that Saunders had established Respondent Wright’s reckless disregard of the risk of

harm to petitioner. Id. at 29a–30a. In support, she

cited the fact that Respondent Wright was “charged

with overseeing the housing unit” and thus would

have known about the conditions. Id. She also highlighted Petitioner’s allegation that Respondent

Wright would “specially clean the cells and bring in

‘little plastic platforms’ for inmates to sleep on” when

visitors were expected. Id. In Judge Martin’s view,

“[t]hese striking allegations … certainly suggest that

Corporal Wright knew it was a problem for inmates

to be sleeping on the filth of the cell floor, and knew

of ways to keep that from happening.” Id.

On June 7, 2018, Petitioner filed a petition for rehearing en banc, arguing that the panel had incorrectly applied a subjective deliberate-indifference

standard to his conditions-of-confinement claim. Petitioner argued that this Court’s decision in Kingsley

made clear that Fourteenth Amendment claims

brought by pretrial detainees should be evaluated

under an objective standard. The Eleventh Circuit

denied the petition on July 16, 2018. App. 64a.

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit reversed the district court’s

denial of summary judgment on the ground that Petitioner had not established the subjective component

of his conditions-of-confinement claim. But Petitioner was a pretrial detainee—not a convicted prisoner—

when he was forced to endure the horrific confinement conditions he now challenges. That distinction

makes all the difference. Although convicted inmates

are subject to punishment, and therefore must prove

subjective deliberate indifference in order to establish

that their treatment in prison violates the Eighth

Amendment, this Court made clear in Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015), and Bell v. Wolfish, 441 U.S. 520 (1979), that pretrial detainees challenging their treatment under the Fourteenth

Amendment need only satisfy an objective standard. 2

Respondents may argue that Petitioner forfeited this argument

by failing to raise it squarely in the proceedings below. Although Petitioner did not invoke Kingsley in his answering brief,

he did draw the court’s attention to the tension between the

Eighth Amendment’s subjective deliberate-indifference standard

and the Fourteenth Amendment’s “objective punishment standard. Initial Brief of Appellee Oberist Saunders at 37–39, Saunders v. Sheriff of Brevard County, No. 16-17607 (11th Cir. Apr.

20, 2017) (citing Bell and Jacoby v. Baldwin County, 835 F.3d

1338, 1345 n.3 (11th Cir. 2016) (recognizing that reviewing a

pretrial detainee’s claim under the Eighth Amendment’s subjective deliberate-indifference standard might conflict with Bell’s

objective “punishment” standard)). Petitioner also explicitly

sought rehearing on this ground. Thus, the question of the appropriate standard of review was adequately pressed below and

preserved for this Court’s review. Regardless, the rule precluding this Court’s review of an issue “not pressed or passed upon

Three federal courts have already recognized that the

reasoning of Kingsley and Bell applies to all treatment-in-detention challenges brought by pretrial detainees. In adopting a contrary approach, the court

below contravened this Court’s precedents and deepened an important circuit split regarding the standard that applies to claims brought by pretrial detainees. Only this Court can clarify the scope of its decisions in Kingsley and Bell, and resolve the disagreement among the courts of appeals as to the appropriate standard for reviewing constitutional claims by

pretrial detainees.

But even if the same subjective deliberateindifference test that governs the Eighth Amendment

claims of convicted prisoners applies to Petitioner’s

Fourteenth Amendment pretrial-detention claim, the

Eleventh Circuit’s conclusion that Respondents are

entitled to qualified immunity would still contravene

well-established precedents of this Court and the

courts of appeals. Decades of federal appellate decisions clearly establish the right of a prisoner not to be

confined in unsanitary conditions and, in any event,

any reasonable officer should have known that the

below” is “prudential.” Izumi Seimitsu Kogyo Kabushiki Kaisha

v. U.S. Philips Corp., 510 U.S. 27, 33 n.7 (1993). Even if the

Kingsley question was not pressed below, there are at least two

good reasons why this Court should nonetheless exercise its discretion to consider the issue: First, this case presents an opportunity to resolve an important circuit split and, although the

decision below does not thoroughly ventilate this question, this

Court would have the benefit of several other reasoned court of

appeals decisions to guide its analysis. Second, this is not a situation in which the presentation of the issues below rendered

the record inadequate to consider this question; Saunders is arguing for an objective standard, and the case was litigated and

decided under the higher subjective standard.

cruel and dehumanizing conditions Petitioner was

forced to endure were unlawful. This Court should

grant certiorari to reaffirm the right of detainees not

to be confined in conditions lacking basic sanitation,

or, alternatively, should summarily reverse the Eleventh Circuit’s clearly erroneous qualified immunity

holding. 3 See Brosseau v. Haugen, 543 U.S. 194, 198

& n.3 (2004) (summarily reversing incorrect qualified

immunity ruling).

The Decision Below Exacerbated an

Entrenched Circuit Split By Erroneously

Applying a Subjective Standard to

Petitioner’s

Fourteenth

Amendment

Claims

The Eleventh Circuit’s decision to afford Respondents qualified immunity turned on its conclusion that

Saunders had failed to establish deliberate indifference. The court declared that the proper standard for

evaluating Respondents’ actions was a “subjective

one”—namely, whether the “prison officials acted

with a sufficiently culpable state of mind with regard

to the condition at issue.” App. 8a (quoting Chandler,

379 F.3d at 1289). In other words, the court said, Respondents must have been “aware of facts from which

the inference could be drawn that a substantial risk

As discussed above, see supra p. 4–5, the court below erroneously believed that it could avoid ruling on the constitutionality

of Petitioner’s conditions of confinement by focusing on the question of Respondents’ deliberate indifference. Here, however, the

risk of harm posed by Petitioner’s conditions of confinement was

so obvious that the court should have “infer[red] the existence”

of the requisite state of mind. Hope, 536 U.S. at 738. The court

of appeals’ deliberate-indifference holding thus cannot shield its

unduly cavalier analysis of the conditions themselves.

of serious harm exists, and [they] must also [have

drawn] the inference.” Id. (quoting Chandler, 379

F.3d at 1289–90). In applying this subjective standard, the Eleventh Circuit joined three of its sister circuits and further entrenched a split that has been

percolating since this Court’s decision in Kingsley.

This Court should grant certiorari to resolve the split

and clarify that, consistent with Kingsley, the appropriate standard for reviewing the constitutional

claims of pretrial detainees is an objective, not subjective, one.

Kingsley Is This Court’s Latest

Decision Applying an Objective

Standard to Constitutional Claims

Brought by Pretrial Detainees

More than forty years ago, this Court held that

constitutional claims brought by convicted inmates

must be analyzed differently than those brought by

pretrial detainees. Claims brought by individuals

who have already been convicted are analyzed under

the Eighth Amendment. That Amendment permits

punishment, so long as it is not “cruel and unusual.”

Claims brought by pretrial detainees, by contrast, are

analyzed under the Fourteenth Amendment’s Due

Process Clause. Bell, 441 U.S. at 535 n.16; Ingraham

v. Wright, 430 U.S. 651, 671–72 n.40 (1977). That

Clause prohibits the State from inflicting any

punishment—cruel and unusual or otherwise—prior

to an adjudication of guilt. Bell, 441 U.S. at 535 n.16.

Consistent with these distinct standards, this

Court has mapped out different tests for Eighth and

Fourteenth Amendment claims. Eighth Amendment

claims are governed by Farmer v. Brennan. Under

Farmer, a convicted prisoner must show that a prison

official acted with subjective deliberate indifference to

the prisoner’s health or safety. 511 U.S. at 834. In

other words, the inmate must establish that the

relevant official was “both … aware of facts from

which the inference could be drawn that a substantial

risk of serious harm exist[ed]” and that he “also

dr[e]w the inference.”

Id. at 837.

The latter

requirement “follows from the principle that ‘only the

unnecessary and wanton infliction of pain implicates

the Eighth Amendment.’” Id. (quoting Wilson v.

Seiter, 501 U.S. 294, 297 (1991)).

A different test governs constitutional claims

brought by pretrial detainees under the Fourteenth

Amendment. That test, first set forth in Bell, does

not require evidence of subjective deliberate

indifference. Because the Due Process Clause forbids

any punishment of individuals who have not yet been

tried, a pretrial detainee need not “pro[ve] … intent

(or motive) to punish … to prevail.” Kingsley, 135 S.

Ct. at 2473 (describing Bell). Of course, “a showing of

an expressed intent to punish on the part of detention

facility officials” necessarily establishes a due process

claim. Bell, 441 U.S. at 538. But a pretrial detainee

can also support his claim with objective evidence—

that is, by showing that the complained-about

conditions are “not reasonably related to a legitimate

goal,” but rather are “arbitrary or purposeless.” Id.

at 539.

This Court confirmed the applicability of an

objective standard to claims brought by pretrial

detainees three years ago in Kingsley. There, the

plaintiff, Michael Kingsley, brought a claim under

§ 1983, alleging that several officers had used

excessive force against him while he was being held

in a county jail prior to trial. 135 S. Ct. at 2470. This

Court granted certiorari to identify the appropriate

standard for assessing such a claim.

The Court began by explaining that Kingsley’s

claim involved, “in a sense, two separate state-ofmind questions.” Id. at 2472. “The first concerns the

defendant’s state of mind with respect to his physical

acts—i.e., his state of mind with respect to the

bringing about of certain physical consequences in

the world.” Id. As to that question, there was no

dispute; the Court confirmed that a defendant “must

possess a purposeful, a knowing, or possibly a

reckless state of mind.” Id. But the second question

did not have a clear standard for evaluation. That

question concerned “the defendant’s state of mind

with respect to whether his use of force was

‘excessive.’” Id. As to that question, the Court held

that courts should apply an objective standard. Id. at

2472–73.

The Court provided three reasons for its holding.

First, the Court explained that an objective standard

was consistent with its own precedents, beginning

with Bell. Id. at 2473. The Court confirmed that Bell

stands for the proposition that a pretrial detainee

who wishes to bring a due process claim “can prevail

by providing only objective evidence.” Id. As this

Court put it, Bell does “not suggest …, either by its

words or its analysis,” that the standard that governs

pretrial detainees’ due process claims “should involve

subjective considerations.” Id. at 2474. Second, the

Court observed that “an objective standard is

workable.” Id. Third, “the use of an objective

standard adequately protects an officer who acts in

good faith.” Id. For all these reasons, the Court said,

“an objective standard is appropriate in the context of

excessive force claims brought by pretrial detainees

pursuant to the Fourteenth Amendment.” Id. at

2476.

Three Courts of Appeals Have

Confirmed That Kingsley Requires

an Objective Standard for Claims

Brought by Pretrial Detainees

In the wake of Kingsley, the Second, Seventh, and

Ninth Circuits have all concluded that although

Kingsley concerned a pretrial detainee’s excessiveforce claim, Kingsley’s reasoning applies with equal

force to other challenges brought by pretrial

detainees under the Fourteenth Amendment, and

that pretrial detainees accordingly need not prove

subjective deliberate indifference as a component of a

Fourteenth Amendment due process claim.

See

Darnell v. Pineiro, 849 F.3d 17, 33–35 (2d Cir. 2017);

Miranda v. County of Lake, 900 F.3d 335, 354 (7th

Cir. 2018); Castro v. County of Los Angeles, 833 F.3d

1060, 1069 (9th Cir. 2016) (en banc), cert. denied sub

nom. Los Angeles County v. Castro, 137 S. Ct. 831

(2017); see also Gordon v. County of Orange, 888 F.3d

1118, 1124–25 & n.4 (9th Cir. 2018).

Second Circuit: In Darnell v. Pineiro, the court

considered a conditions-of-confinement claim much

like the one at issue in this case. There, twenty

pretrial detainees brought a Fourteenth Amendment

claim alleging that they had been subjected to

“appalling conditions of confinement while held prearraignment.” 849 F.3d at 20. The court explained

the need to “consider whether Kingsley altered the

standard” for excessive-force claims alone, or whether

it also “altered the standard for conditions of

confinement

claims

under

the

Fourteenth

Amendment’s Due Process Clause.” Id. at 21. The

Second Circuit concluded that Kingsley had broadly

altered the standard for all Fourteenth Amendment

due process claims brought by pretrial detainees. Id.

at 34–35.

In the Second Circuit’s view, Kingsley made “plain

that punishment has no place in defining the mens

rea element of a pretrial detainee’s claim under the

Due Process Clause.” Id. at 35. Because “an official

can violate the Due Process Clause of the Fourteenth

Amendment without meting out any punishment, …

the Due Process Clause can be violated when an

official does not have subjective awareness that the

official’s acts (or omissions) have subjected the

pretrial detainee to a substantial risk of harm.” Id.

Accordingly, the court said, “deliberate indifference

for due process purposes should be measured by an

objective standard.” Id.

Ninth Circuit: In Castro v. County of Los Angeles,

the en banc Ninth Circuit court considered a failureto-protect claim brought by a pretrial detainee who

was savagely beaten by his cellmate while being held

in a sobering cell at a Los Angeles jail. The en banc

court held that Kingsley’s holding is not limited to

excessive-force claims brought by pretrial detainees.

833 F.3d at 1071. Instead, the court held that

Kingsley extends to failure-to-protect claims and

strongly suggested that Kingsley’s “objective standard

applies to all kinds of claims brought by pretrial

detainees.” Id. at 1069–72; see also Darnell, 849 F.3d

at 35 n.14 (explaining that the Ninth Circuit’s

reasoning in Castro “is equally applicable to a

conditions of confinement claim”).

The court acknowledged that “Kingsley did not

squarely address whether the objective standard

applies to all kinds of claims by pretrial detainees,”

and that “[a]n excessive force claim … differs in some

ways from a failure-to-protect claim.” Id. at 1069.

But the court emphasized that “there are significant

reasons to hold that the objective standard applies to

failure-to-protect claims as well.” Id. For one thing,

both excessive-force and failure-to-protect claims

arise under the Fourteenth Amendment when they

are brought by pretrial detainees. Id. at 1069–70.

Kingsley, moreover, spoke in “broad” terms about a

pretrial detainee’s ability to succeed on a claim

without providing subjective evidence; this Court did

not cabin Kingsley’s holding to claims involving force.

Id. at 1070. Finally, the court pointed out that the

injuries caused by excessive force and a failure to

protect can often be the same. Id. “On balance,”

then, the court concluded “that Kingsley applies, as

well, to failure-to-protect claims brought by pretrial

detainees against individual defendants under the

Fourteenth Amendment.” Id.

Earlier this year, the Ninth Circuit confirmed that

Kingsley’s holding also extends to “claims for

violations of the right to medical care brought by

pretrial detainees.” Gordon v. County of Orange. In

Gordon, a pretrial detainee’s successor-in-interest

brought suit after the detainee died within 30 hours

of being detained in an Orange County jail. 888 F.3d

at 1120. The court explained that “the medical care a

prisoner receives is just as much a ‘condition’ of his

confinement as … the protection he is afforded

against other inmates,” so, under Kingsley, both

kinds of claims should be evaluated using an

objective standard. Id. at 1124–25 (quoting Wilson,

501 U.S. at 303).

Seventh Circuit: The Seventh Circuit was the most

recent court to hold that an objective standard

applies to the constitutional claims of pretrial

detainees. Just five months ago, in Miranda v.

County of Lake, the court evaluated a Fourteenth

Amendment claim of inadequate medical care

brought by the estate of a pretrial detainee, who died

in the hospital after suffering from severe

dehydration at the county jail. 900 F.3d at 341. The

court acknowledged the split emerging in the circuit

courts on the question whether Kingsley should

extend beyond excessive-force claims. Id. at 351–52.

The court noted that it had previously declined to

“weigh[] in on the debate,” but stated that the time

had come to do so because it might “make a difference

in the retrial of [the plaintiff’s] claims.” Id. at 352.

After considering the views of its sister circuits,

the Seventh Circuit joined the Second and Ninth

Circuits in moving to an objective standard.

According to the Seventh Circuit, this Court “has

been signaling that courts must pay careful attention

to the different status of pretrial detainees.” Id. The

court did not read Kingsley to support dissecting the

nature of a particular Fourteenth Amendment claim,

but rather understood the opinion as drawing a clear

line between Eighth Amendment claims brought by

convicted prisoners and Fourteenth Amendment

claims brought by pretrial detainees. Id. Consistent

with that understanding, the Seventh Circuit held

that “medical-care claims brought by pretrial

detainees under the Fourteenth Amendment are

subject only to the objective unreasonableness

inquiry identified in Kingsley.” Id.

Four Courts of Appeals Have

Declined

Extend

Kingsley

Beyond Excessive-Force Claims

On the opposite side of the debate, the Fifth, Sixth,

Eighth, and Eleventh Circuits have all continued to

apply a subjective standard to Fourteenth

Amendment claims brought by pretrial detainees

post-Kingsley. See Alderson v. Concordia Par. Corr.

Facility, 848 F.3d 415, 420 n.4 (5th Cir. 2017) (per

curiam); Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th

Cir. 2018); Whitney v. City of St. Louis, 887 F.3d 857,

860 n.4 (8th Cir. 2018), rehearing and rehearing en

banc denied (8th Cir. June 14, 2018); Dang ex rel.

Dang v. Sheriff, Seminole County Fla., 871 F.3d 1272,

1279 n.2 (11th Cir. 2017). Some of these courts have

observed that Kingsley seems to be in tension with

applying a subjective standard to Fourteenth

Amendment claims, but even those courts have

declined to revert to an objective approach.

Fifth Circuit: In Alderson v. Concordia Parish

Correctional Facility, the Fifth Circuit raised the

possibility that Kingsley had called into question the

applicable standard for claims brought by pretrial

detainees under the Fourteenth Amendment. 848

F.3d at 419 n.4. But a divided panel explained that it

was “bound by [the] rule of orderliness” because the

Fifth Circuit had already applied a subjective

standard in several post-Kingsley opinions (even

though the court had done so in those cases without

mentioning Kingsley or evaluating its implications).

Id. Judge Graves wrote separately in concurrence to

note that he would have revisited the relevant

standard in light of Kingsley. Id. at 425 (Graves, J.,

specially concurring in part).

Sixth Circuit: In Richmond v. Huq, the Sixth

Circuit cited Kingsley and noted that the court had

“not yet considered whether Kingsley … abrogates

the subjective intent requirement of a Fourteenth

Amendment deliberate indifference claim.” 885 F.3d

at 937–38 & n.3. The court acknowledged that its

sister circuits were split on the question, and

conceded that the “shift in Fourteenth Amendment

deliberate indifference jurisprudence call[ed] into

serious doubt” whether a plaintiff needed to show

subjective deliberate indifference. Id. Nevertheless,

the court applied the subjective standard, in part

because the parties had not raised Kingsley in their

briefing, and in part because no other court had at

that point applied Kingsley “specifically to a

deliberate indifference to a detainee’s serious medical

needs claim.” Id.

Eighth Circuit: In Whitney v. City of St. Louis, a

father brought a § 1983 action after his son, a pretrial

detainee, committed suicide in his cell. 887 F.3d at

859. The father alleged that the defendant official

had been deliberately indifferent by failing to

adequately monitor his son and by failing to

intervene or provide timely medical care. Id. To

evaluate this claim, the Eighth Circuit applied a

subjective standard.

Id. at 860.

The court

acknowledged that the plaintiff had argued for an

objective standard in light of Kingsley. Id. at 860 n.4.

But the court held that Kingsley did “not control

because it was an excessive force case, not a

deliberate indifference case.” Id.

Eleventh Circuit: The decision below was not the

first Eleventh Circuit opinion to apply a subjective

standard to a Fourteenth Amendment claim brought

by a pretrial detainee post-Kingsley. In Nam Dang v.

Sheriff, Seminole County, Florida, the Eleventh

Circuit considered a claim brought by a pretrial

detainee who alleged that he had received inadequate

medical care while in jail. 871 F.3d at 1276. The

plaintiff argued that Kingsley had altered the

standard for assessing claims brought by pretrial

detainees. Id. at 1279 n.2. The court disagreed and

held that it “[could] not and need not reach” that

question. Id. The majority understood Kingsley to be

limited to excessive-force claims, and thus did not

understand it to abrogate the court’s prior precedent

on other Fourteenth Amendment claims. Id. The

court further noted that even if Kingsley had altered

the relevant standard, a different standard would not

affect the case at hand. Id.

This Court Should Grant Certiorari

To Resolve the Split in Favor of an

Objective Standard

This Court should grant certiorari to resolve this

split, which now spans at least seven circuits. In the

current landscape, detainees face different standards

for their constitutional claims depending on where

they are housed. The Court should not countenance

any such variation.

This case, moreover, is a good vehicle for resolving

the entrenched split. The Eleventh Circuit made

absolutely clear that it was applying a subjective

standard.

See App. 16a–18a.

And the court’s

application of the subjective standard made a

difference. The Eleventh Circuit granted qualified

immunity because it found that Petitioner had not

put forward sufficient evidence to prove that

Respondents had necessarily been aware of the

appalling conditions. Id. Had Petitioner needed only

to satisfy an objective standard, however, his

allegations that Respondent Wright was directly

responsible for the daily conditions of the unit would

have established his culpability.

Finally, in resolving the split, this Court should

ratify the approach adopted by the Second, Seventh,

and Ninth Circuits. As those courts have properly

recognized, requiring pretrial detainees to show

subjective deliberate indifference is inconsistent with

this Court’s decision in Kingsley, which drew a clear

line between Eighth Amendment and Fourteenth

Amendment claims, and held broadly that a pretrial

detainee must be able to proceed with his claims by

putting

forward

evidence

objective

unreasonableness—not

subjective

deliberate

indifference, as a convicted prisoner must. 135 S. Ct.

at 2472–73.

Nothing in Kingsley suggested that this Court’s

holding was confined to excessive-force claims. To

the contrary, Kingsley’s reasoning about the special

status of pretrial detainees would seem to apply no

matter what kind of Fourteenth Amendment due

process claim a prisoner is trying to bring. To the

extent some courts of appeals have concluded

otherwise, those courts have improperly narrowed

this Court’s decision to its facts and have ignored

both the letter and spirit of Kingsley. This Court

should grant certiorari and make clear that it meant

what it said in Kingsley: Pretrial detainees can

prevail on a Fourteenth Amendment claim

challenging their conditions of confinement by

establishing objective unreasonableness; they need

not establish subjective deliberate indifference.

II.

The

Eleventh

Circuit’s

Qualified

Immunity Ruling Flouts Decades of

Precedent in This Court and the Courts of

Appeals,

and

Ignores

Obvious

Constitutional Violation

Setting aside that the Eleventh Circuit applied the

wrong legal standard and erroneously failed to consider the severity of the alleged violations as part of

its deliberate-indifference inquiry, its qualified immunity ruling would nonetheless warrant review—or,

in the alternative, summary reversal—because the

Eleventh Circuit disregarded decades of precedent

clearly establishing the right of a detainee to basic

sanitary conditions and ignored an obvious constitutional violation. This Court regularly intervenes to

correct the misapplication of its longstanding precedents. See, e.g., Tolan v. Cotton, 572 U.S. 650 (2014)

(“[W]e intervene here because the opinion below reflects a clear misapprehension of summary judgment

standards in light of our precedents.”); Brosseau at

198 & n.3.

Government officials are entitled to qualified immunity only if “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) (citation omitted).

A right can be “clearly established” either (1) by “existing precedent,” or (2) in the “rare ‘obvious case,’”

the “unlawfulness of the officer’s conduct [may be]

sufficiently clear even though existing precedent does

not address similar circumstances.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting

Brosseau, 543 U.S. at 199). Petitioner’s egregious

conditions of confinement were clearly unconstitutional under either test.

Depriving a Detainee of Basic

Sanitation and Hygiene Clearly

Violates the Constitution Under

Decades-Old Precedent

This Court has long recognized that depriving inmates of basic sanitation violates the Constitution.

In fact, the right of a detainee not to be confined in

unhygienic conditions was established by this Court’s

first conditions-of-confinement decision in Hutto v.

Finney, 437 U.S. 678 (1978). In Hutto, this Court

held that the conditions in two Arkansas state prisons, including “filthy, overcrowded cell[s],” violated

the Eighth Amendment. Id. at 686-87.

This Court reaffirmed that rule a few terms later

in Rhodes v. Chapman, 452 U.S. 337 (1981). There,

this Court explained that the unhygienic conditions

challenged in Hutto had run afoul of the Constitution

“because they resulted in unquestioned and serious

deprivation of basic human needs.” Id. at 347. The

Court emphasized that conditions that “deprive inmates of the minimal civilized measure of life’s necessities,” violate the “contemporary standard of decency

that [this Court] recognized in [Estelle v. Gamble, 429

U.S. 97, 103–04 (1976)]”. Id. In holding that the

double-celling practices challenged in Rhodes were

not unconstitutional, this Court highlighted that

“though small, the cells … are exceptionally modern

and functional; they are heated and ventilated and

have hot and cold running water and a sanitary toilet.” Id. at 348 n.13.

The facts of these two decisions are not identical to

the case at bar—indeed, the facts of the case at bar

are worse—but precise factual identity is not required

to abrogate qualified immunity. See, e.g., Mullenix v.

Luna 136 S. Ct. 305, 314 (2015) (Sotomayor, J., dissenting) (“This Court has rejected the idea that ‘an

official action is protected by qualified immunity unless the very action in question has previously been

held unlawful.’” (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987))). Instead, “‘the salient question

… is whether the state of the law’ at the time of an

incident provided ‘fair warning’ to the defendants

‘that their alleged [conduct] was unconstitutional.’”

Tolan, 572 U.S. at 656 (quoting Hope, 536 U.S. at

739). Here, the answer is plainly yes. This Court’s

decisions in Hutto and Rhodes have long provided

“fair warning” that depriving inmates of basic elements of hygiene—including housing them in dirty

and overcrowded cells and denying them access to

sanitary bathroom facilities—is unconstitutional.

Given that the facts in this case are worse than the

already egregious facts in Hutto and Rhodes, there

can be no doubt that officials were on notice that conditions in the Bubble were unlawful.

But to the extent this Court’s decisions left any

doubt, the Eleventh Circuit has explicitly held that

the right of a detainee “not to be confined … in conditions lacking basic sanitation” is clearly established

for purposes of the qualified immunity inquiry—and,

in fact, has been for decades. Chandler v. Baird, 926

F.2d 1057, 1065–66 (11th Cir. 1991) (right was “well

established in 1986”). This Court considers such intra-circuit precedent when evaluating whether state

officials should have been aware that their conduct

was unlawful. See, e.g., Hope, 536 U.S. at 742–45

(holding that the respondents, Alabama prison officers, were not entitled to qualified immunity in light of

prior precedent from the Eleventh Circuit and the

precursor Fifth Circuit).

The Fifth Circuit (as originally constituted 4) first

recognized that the “deprivation of basic elements of

hygiene” violates the Constitution in Novak v. Beto,

453 F.2d 661, 665 (5th Cir. 1971). See also Campbell

v. Beto, 460 F.2d 765, 768 (5th Cir. 1972) (“[T]he deprivation of basic elements of hygiene has consistently

been held violative of constitutional guarantees.” (citation omitted)). 5 In the half-century since, the Fifth

The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit in Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

The Fifth and Eleventh Circuits are hardly the only circuits to

have such a rule: Virtually “every sister circuit … has recognized that the deprivation of basic sanitary conditions can constitute an Eighth Amendment violation.” Brooks, 800 F.3d at

1304; see also, e.g., Budd v. Motley, 711 F.3d 840, 843 (7th Cir.

2013) (per curiam) (“Jail officials violate the Eighth Amendment

if they are deliberately indifferent to adverse conditions that

deny ‘the minimal civilized measure of life’s necessities,’ including adequate sanitation and personal hygiene items.” (citation

omitted)); Stickley v. Byrd, 703 F.3d 421, 423 (8th Cir. 2013)

(“[P]retrial detainees are entitled to reasonably adequate sanitation[ and] personal hygiene.” (quotation marks and citation

omitted)); Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C.

Cir. 1988) (recognizing “sanitation” as a constitutionally protected “basic need”); Parrish v. Johnson, 800 F.2d 600, 609 (6th Cir.

Circuit and the Eleventh Circuit have repeatedly reaffirmed that rule. What is more, those courts have

expressly held that the conditions that rendered Petitioner’s confinement unconstitutional—confinement

in an overcrowded, waste-covered cell, and denial of

access to basic hygiene items—are unlawful. 6

1986) (“[T]he Eighth Amendment protects prisoners from being

... denied the basic elements of hygiene.”) (quotation omitted);

Hite v. Leeke, 564 F.2d 670, 672 (4th Cir. 1977) (recognizing that

“the denial of decent and basically sanitary living conditions and

the deprivation of the basic elements of hygiene” are “clear violations of the Eighth Amendment”) (quotation marks and citation omitted). The unanimity and breadth of this precedent underscores the clarity with which the constitutional right to basic

sanitary conditions has been established.

Again, any argument that the unconstitutionality of housing

prisoners in waste-covered cells or without access to basic hygiene items has not been clearly established is belied by the

sheer number of opinions to the contrary in the other federal

courts of appeals. See, e.g., McBride v. Deer, 240 F.3d 1287,

1292 (10th Cir. 2001) (“Not surprisingly, human waste has been

considered particularly offensive so that ‘courts have been especially cautious about condoning conditions that include an inmate’s proximity to [it].’” (quoting Fruit v. Norris, 905 F.2d

1147, 1151 (8th Cir. 1990)); Keenan v. Hall, 83 F.3d 1083, 1091

(9th Cir. 1996), opinion amended on denial of reh’g, 135 F.3d

1318 (9th Cir. 1998) (“[I]nmates have the right to personal hygiene supplies such as toothbrushes and soap.”); Young v. Quinlan, 960 F.2d 351, 365 (3d Cir. 1992) (“It would be an abomination of the Constitution to force a prisoner to live in his own excrement for four days.”), superseded by statute on other grounds

as recognized by Nyhuis v. Reno, 204 F.3d 65, 71 n. 7 (3d Cir.

2000); Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989)

(holding that “inmates are entitled to reasonably adequate sanitation” and finding violation where cell was “covered with ...

human waste”); LaReau v. MacDougall, 473 F.2d 974, 978 (2d

Cir.1972) (“Causing a man to live, eat and perhaps sleep in close

confines with his own human waste is too debasing and degrading to be permitted.”); Wright v. McMann, 387 F.2d 519, 526 (2d

For example, in McCray v. Sullivan, 509 F.2d 1332

(5th Cir. 1975), prisoners in the Alabama state prison

system alleged that their conditions of confinement

violated the Eighth Amendment. Among other conditions, the prisoners challenged the confinement of up

to seven inmates in a cell measuring 6 x 8 feet that

had no bunks, sinks, or other facilities, except a hole

in the floor that served as a toilet and frequently

caused “waste to back up onto the floor of the cell”

when flushed. Id. at 1336. The former Fifth Circuit

held that these conditions constituted an unconstitutional “deprivation of the basic elements of hygiene,”

and expressed particular concern about prisoners

“hav[ing] to live and sleep on a floor that has waste

on it.” Id. at 1336 & n.10.

More recently, in Chandler v. Baird, the Eleventh

Circuit was called upon to evaluate the constitutionality of the following conditions of confinement: “confinement in a cold cell with no clothes except undershorts and with a plastic-covered mattress without

bedding; filth on the cell’s floor and walls; deprivation

of toilet paper for three days; [and] lack of soap

toothbrush, toothpaste, and linen.” 926 F.2d at 1063.

The district court had granted summary judgment on

the basis of qualified immunity, and the Eleventh

Circuit reversed. The Eleventh Circuit concluded

that “the right of a prisoner not to be confined … in

conditions lacking basic sanitation was well established” at the time of the plaintiff’s confinement, and

held that the plaintiff was “entitled to have the trier

of fact determine whether the conditions of his … conCir. 1967) (“[C]ivilized standards of humane decency simply do

not permit a man … to be deprived of the basic elements of hygiene such as soap and toilet paper.”).

finement, principally with regard to the cell temperature and the provision of hygiene items, violated the

minimal standards required by the Eighth Amendment.” Id. at 1065–66 (emphasis added).

These precedents involved factual circumstances

closely analogous to those at issue here, and should

have been sufficient to put Respondents on notice

that conditions in the Bubble were unconstitutional.

See Hope, 536 U.S. at 741 (previous cases need not be

“fundamentally” or even “materially similar”, so long

as “the state of the law [at the time of the challenged

conduct] … gave respondents fair warning” that their

conduct was unlawful); accord United States v. Lanier, 520 U.S. 259, 270–71 (1997). Novak and its

progeny, particularly McCray and Chandler, provided

sufficient warning that confinement of up to eight

inmates in a cell that was covered in human waste,

infrequently and ineffectively cleaned, and inadequately cooled and ventilated, where inmates were

deprived of ready access to soap, toilet paper, or eating utensils and were forced to walk barefoot and

sleep on mats placed directly on the waste-splattered

floor, violates the Constitution.

And, even if these conditions were not individually

serious enough to effect a constitutional violation

(they are), this Court has held that conditions of

confinement may have “a mutually enforcing effect

that produces the deprivation of a single, identifiable

human need.” Wilson, 501 U.S. at 304. This is

obviously a scenario where that rule applies:

Saunders’s constant exposure to human bodily fluids

and excrement was rendered all the more degrading

and dangerous by the fact that he was deprived of

ready access to soap, toilet paper, and eating

utensils—basic hygiene tools that would have

mitigated somewhat the obvious health risks of

living, sleeping, and eating covered in such filth.

Astonishingly, the Eleventh Circuit concluded

otherwise without any substantive analysis,

declaring ipse dixit that “the broad swath of

[Saunders’s] allegations fails to illustrate the

deprivation of [a] ‘single, identifiable human need’—

whether ‘basic sanitation’ or otherwise—or the …

‘minimal civilized measures of life’s necessities.’”

App. 22a. With all due respect to the court of

appeals, that pronouncement cannot withstand

scrutiny.

Petitioner

Was

Confined

Conditions So Egregious That Any

Reasonable Officer Should Have

Known They Were Unlawful

Moreover, a reasonable official should not have

needed prior precedent to know that Petitioner’s conditions of confinement were unconstitutional.

This Court’s precedents instruct that particularly

egregious conduct may be clearly unconstitutional

even if “the very action in question has [not] previously been held unlawful.” Lanier, 520 U.S. at 271

(quoting Anderson, 483 U.S. at 640).

For example, in Hope v. Pelzer, this Court reversed

a grant of qualified immunity even though there was

no precedent squarely on point. In that case, the

plaintiff alleged that being handcuffed to a hitching

post on two occasions, one of which lasted for seven

hours without regular water or bathroom breaks, violated the Eighth Amendment. Hope, 536 U.S. at 736–

38. This Court had no difficulty concluding that the

“cruelty inherent” in defendants’ conduct made this

an “obvious” constitutional violation, and that any

reasonable officer should have known that treating

an inmate “in a way antithetical to human dignity …

under circumstances that were both degrading and

dangerous” was unlawful. Id. at 741–746.

The Eleventh Circuit recently found an “obvious”

constitutional violation when confronted with debasing treatment of an inmate that is closely analogous

to Respondents’ treatment of Petitioner. In Brooks v.

Warden, 800 F.3d 1295 (11th Cir. 2015), the plaintiff

alleged that his Eighth Amendment rights were violated when he was placed in maximum-security restraints while hospitalized and “forced to defecate in

his jumpsuit for two days and sit in his own excrement, during which time the guard laughed and

taunted him.” Id. at 1298. The district court dismissed the resulting claim on qualified immunity

grounds, and the Eleventh Circuit reversed.

The Eleventh Circuit held that the officer defendant was not entitled to qualified immunity on the

plaintiff’s claim that he had been “confined in conditions lacking in basic sanitation,” concluding that the

officer was “put on fair notice both by our case law

and the knowledge that forcing a prisoner to soil himself over a two-day period while chained in a hospital

bed creates an obvious health risk and is an affront to

human dignity.” Id. In holding that these facts presented a “rare case of obvious clarity” in which the

“conduct is so egregious that no prior caselaw is

needed to put a reasonable officer on notice of its unconstitutionality,” the Eleventh Circuit emphasized

the health risks and cruelty of forcing a prisoner to

endure prolonged exposure to human excrement. Id.

at 1306-07 (internal quotation marks and citations

omitted).

The same rationale underlying Hope and Brooks

compels the conclusion that a reasonable officer

should have known that the unnecessarily cruel and

dehumanizing conditions Petitioner endured were

obviously unconstitutional. Indeed, the conditions of

Petitioner’s confinement were, in many ways, worse

than those at issue in Hope and Brooks: The plaintiff

in Hope was denied access to water and a bathroom

for a matter of hours, whereas Saunders was forced

to live, sleep, and eat in a densely packed cell that

was covered in bodily fluids and excrement for 65

days. And the plaintiff in Brooks was exposed to his

own excrement for two days, whereas Petitioner was

exposed to every type of bodily fluid—feces, urine,

semen, vomit, and even blood—from up to seven

cellmates for more than two months prior to his trial.

App. 26a.

Even setting aside these “degrading and dangerous” conditions, Respondents in this case displayed

the same shocking callousness that caused this Court

to find an “obvious” constitutional violation in Hope

and the Eleventh Circuit to do so in Brooks. When

the air conditioning at the jail stopped working and

the resulting intolerable conditions forced Petitioner

to have a panic attack and bang his head “uncontrollably” against the steel door of his cell until he was

“bleeding down his face” and needed stiches to close

the wounds, Wright and his deputies “not only stood

by, ‘but laughed at [Petitioner] while he was beating

his head on the door.’” App. 37a. This was an affront

to basic standards of human decency, and “an act of

obvious cruelty for which there is no qualified immunity.” Id. (citing Brooks, 800 F.3d at 1307).

In short, Respondents should have known from

both precedent and common sense that the conditions

in the Bubble were unlawful. The Eleventh Circuit’s

contrary ruling warrants review by this Court, which

should grant certiorari and confirm that detainees

have a clearly established right to basic sanitation.

Alternatively, the Court may wish to summarily reverse. See Brosseau, 543 U.S. at 198 & n.3.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari. With respect to

the second question presented, the Court may also

wish to consider summary reversal.

Respectfully submitted,

SARAH G. BOYCE

Counsel of Record

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1107

Sarah.Boyce@mto.com

STEPHANIE G. HERRERA

MUNGER, TOLLES & OLSON LLP

560 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 512-4063

Stephanie.Herrera@mto.com

December 13, 2018

COLEMAN W. WATSON

WATSON LLP

189 S. Orange Street,

Suite 810

Orlando, FL 32801

(407) 377-6634

coleman@watsonllp.com

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

————

No. 16-17607

D.C. Docket No. 6:14-cv-00877-GAP-DCI

————

OBERIST LEE SAUNDERS,

Plaintiff-Appellee,

versus

SHERIFF OF BREVARD COUNTY, in his official capacity,

Defendant-Counter Claimant-Appellant,

SUSAN JETER, in her individual capacity,

JOHN C. WRIGHT, in his individual capacity,

Defendant-Appellants,

PATRICIA TILLEY, in her individual capacity,

Defendant.

————

Appeal from the United States District Court

for the Middle District of Florida

————

May 17, 2018

————

Before MARCUS, MARTIN, and NEWSOM, Circuit

Judges.

PER CURIAM:

Oberist Saunders arrived at Florida’s Brevard

County Jail in June 2008 following his arrest for

armed robbery. A little more than a month into his

incarceration, Saunders cut his wrists in an unsuccessful suicide attempt. A jail guard noticed Saunders’

wounds and called paramedics, who promptly transferred Saunders to the nearest hospital. When he

returned to the Jail later that same day, Saunders was

placed in “the acute mental health housing unit,” also

known as “the Bubble.” Saunders spent a total of

69 days in the Bubble—65 during his post-suicide stay

in 2008, and four more during a case-related status

hearing in 2013. The issues in this appeal relate

exclusively to Saunders’ time in the Bubble, during

which he claims that officers violated his constitutional rights under the Eighth and Fourteenth

Amendments.

Saunders alleges that the Bubble’s conditions were

unconstitutional for a variety of reasons. For starters,

he claims that the Bubble’s cells were overcrowded.

Saunders testified that the cells’ occupancy frequently

vacillated, with as few as three and as many as eight

occupants in a cell “no larger than 9-by-15,” which, he

said, increased tensions among inmates and inhibited

his ability to exercise. Other Bubble inmates echoed

Saunders’ claim, explaining that the dense occupancy

produced conflicts when, for example, inmates’ sleeping

mats would unavoidably overlap, or when urine would

splash from the cell’s communal toilet onto an inmate’s

sleeping space.

Saunders also alleges significant problems with the

Bubble’s sanitation standards. In particular, he claims

that inmates would urinate, defecate, and ejaculate in

their cells, and that the authorities wouldn’t clean the

resulting residue for several days. Saunders further

contends that some inmates would intentionally stop

up the cell toilets, thus flooding the cells and contaminating others’ sleeping mats or blankets, and that

the officers would leave the mess “to sit in there for a

while, basically like a punishment.” (Saunders admits,

though, that this never happened to him personally.)

Moreover, Saunders states that he never received new

blankets or mats, even after, for instance, a fellow

inmate with bleeding lesions on his feet repeatedly

stomped on his blanket. Saunders finally alleges (with

respect to sanitation) that even when officers would

clean the cells—which, according to him, happened

twice a week—he never saw them change the mop

water, and that therefore much of the cleaning was

ineffective.

Beyond concerns over sanitation, Saunders also

complains about his (enforced) inability to maintain

personal hygiene. The Jail, he says, would permit the

Bubble’s inmates to access hand soap, utensils, and

toilet paper only upon request. Although this policy

stemmed from the Jail’s concern that inmates might

attempt to hurt themselves or others, Saunders insinuates that even after inmates had requested the

products, officers would intentionally delay providing

them for unreasonable periods of time. In the same

vein, Saunders complains that the officers restricted

his access to showers, only permitting a full shower

about twice a week.

Saunders also claims to have suffered physical

discomfort—and even harm—in the Bubble. According

to Saunders, the Bubble’s cells were always hot and

moldy, and the general climate was inadequately maintained. Once, Saunders says, the stifling discomfort

of his cell’s temperature caused him to lapse into a

panic attack in which he repeatedly slammed his

head against a metal doorframe, resulting in a gashed

scalp and stitches. Saunders separately claims to

have suffered physical violence when a fellow inmate

brutally attacked him in his sleep, although the evidence is clear that the officers on duty intervened and

stopped the attack immediately and that the onsite

nurse cleared Saunders of any injury.

Saunders brought suit against various state

employees and Jail officers in Florida state court. The

defendants removed the case to the United States

District Court for the Middle District of Florida.

Saunders eventually filed his Third Amended Complaint,

in which he alleged claims against Sheriff Wayne Ivey

under Monell v. Department of Social Services, 436

U.S. 658 (1978), and against ten other defendants

in their individual capacities under 42 U.S.C. § 1983.

The defendants subsequently moved for summary

judgment on both the merits of the constitutional

claims and the defense of qualified immunity.

The district court granted in part and denied in

part the defendants’ motion for summary judgment,

determining that a jury would have to resolve various

issues of fact related to the defendants’ qualifiedimmunity defenses. On December 16, 2016, the defendants timely appealed to this Court. Claims against

three officers remain for us to consider on appeal:

Saunders asserts (1) that, under Monell, Sheriff Ivey

is liable in his official capacity for the unconstitutional

conditions in the Jail; (2) that Commander Susan

Jeter faces supervisory liability for unconstitutional

conditions in the Jail; and (3), that Officer John

Wright—the “Officer in Charge” of the Bubble during

most of Saunders’ tenure—is personally liable for

unconstitutional conditions of confinement.

While we lack jurisdiction to review Saunders’ Monell

claim against Ivey, we conclude that the district court

improperly denied qualified immunity to defendants

Jeter and Wright. As to those two defendants, we

therefore reverse.

We may exercise appellate jurisdiction over the

denial of qualified immunity on a motion for summary

judgment, see Plumhoff v. Rickard, 134 S. Ct. 2012,

2018-19 (2014), but we lack jurisdiction to conduct

interlocutory review of Saunders’ Monell claim against

Sheriff Ivey. The defendants urge us to exercise

pendent jurisdiction over the Monell claim because it

is, they say, “inextricably intertwined” with our qualified immunity analysis. We disagree. While it is true

that an absence of any constitutional violation would

be fatal to assertions of both personal and Monell

liability, it remains the case that these forms of

liability are subject to different standards. For instance,

if officers violated a plaintiff’s constitutional rights

but those rights were not “clearly established,” then

Monell liability could survive even though qualified

immunity would preclude individual liability.

For these reasons, this Court has previously found

Monell issues sufficiently distinct from issues relating

to qualified immunity, and has thus held Monell

claims ineligible for interlocutory review. See Jones v.

Cannon, 174 F.3d 1271, 1293 (11th Cir. 1999); Pickens

v. Hollowell, 59 F.3d 1203, 1208 (11th Cir. 1995);

Haney v. City of Cumming, 69 F.3d 1098, 1102 (11th

Cir. 1995). The defendants have failed to persuade us

that we may—let alone should—chart a different

course here. We therefore address in this appeal only

whether defendants Wright and Jeter are entitled to

qualified immunity.

III

“We review de novo the denial of a motion for

summary judgment by a district court on the basis of

qualified immunity, construing all facts and making

all reasonable inferences in the light most favorable

to the non-moving party.” Kesinger ex rel. Estate of

Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.

2004). “As this Court has repeatedly stressed, the

facts, as accepted at the summary judgment stage of

the proceedings, may not be the actual facts of the

case. Nevertheless, for summary judgment purposes,

our analysis must begin with a description of the facts

in the light most favorable to the plaintiff.” Lee v.

Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (citation

and quotation marks omitted). Our pro-plaintiff perspective notwithstanding, however, “a mere scintilla of

evidence in support of the non-moving party’s position

is insufficient to defeat a motion for summary judgment.” Herrington, 381 F.3d at 1247.

Our review begins with qualified immunity’s threshold question: Whether the defendants were “acting

within the scope of [their] discretionary authority.”

Moore v. Pederson, 806 F.3d 1036, 1042 (11th Cir.

2015). The term “discretionary authority” includes “all

actions of a governmental official that (1) were

undertaken pursuant to the performance of his duties,

and (2) were within the scope of his authority.”

Id. (internal quotations omitted). Because Saunders’

claims clearly focus on instances in which the

defendant officers were acting within their discretionary authority, “the burden shifts to [Saunders] to

demonstrate that qualified immunity is inappropriate.”

Id.

Qualified immunity is a “muscular doctrine,” Foy v.

Holston, 94 F.3d 1528, 1534 (11th Cir. 1996), and

Saunders must satisfy both elements of a two-pronged

inquiry in order to prove the officers’ individual liability.

“The first [prong] asks whether the facts, ‘taken in the

light most favorable to the party asserting the injury,

show the officer’s conduct violated a federal right.’”

Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)) (alterations

omitted). “The second prong of the qualified-immunity

analysis asks whether the right in question was

‘clearly established’ at the time of the violation”—and

thereby shields government actors “from liability for

civil damages if their actions did not violate ‘clearly

established statutory or constitutional rights of which

a reasonable person would have known.’” Id. at 1866

(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The

Supreme Court has held that courts may engage these

issues in either order. See Pearson v. Callahan, 555

U.S. 223, 236 (2009).

A constitutional right is “clearly established” only if

“its contours [are] sufficiently clear that a reasonable

official would understand that what he is doing

violates that right.” Hope, 536 U.S. at 739 (quotation

marks omitted). “This is not to say that an official

action is protected by qualified immunity unless the

very action in question has previously been held

unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Id.

(quotation marks and citations omitted). Even in the

absence of binding caselaw, conduct may occasionally

be so obviously unconstitutional that a previous onpoint decision is unnecessary. Mercado v. City of

Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). Simply

put, qualified immunity’s clearly-established inquiry

reduces to whether the state of the law at the time of

the defendants’ alleged violations gave the defendants

“fair warning” that their alleged actions were unconstitutional. Hope, 536 U.S. at 741.

As already noted, Saunders alleges Eighth Amendment violations. In order to establish that conditions

of confinement are unconstitutional, a plaintiff must

satisfy each element of a multi-tiered inquiry. The first

element sets an objective hurdle, where “a prisoner

must prove that the condition he complains of is

sufficiently serious to violate the Eighth Amendment.”

Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir.

2004) (quotation marks omitted). An objective Eighth

Amendment violation “must be extreme” and deprive

the prisoner “of the minimal civilized measure of life’s

necessities.” Id. (quotation marks omitted) (quoting

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The

second requisite element is a subjective one: “[T]he

prisoner must show that the defendant prison officials

acted with a sufficiently culpable state of mind with

regard to the condition at issue.” Id. (quotation marks

omitted). Negligence is not enough; the officer “must

both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Id. at

1289-90 (quoting Farmer v. Brennan, 511 U.S. 825,

837 (1994)). Finally, and separately, the plaintiff must

prove “a causal connection between the defendants’

conduct and the Eighth Amendment violation.” Brooks

v. Warden, 800 F.3d 1295, 1301 (11th Cir. 2015).

Despite their troubling nature, none of Saunders’

allegations withstands the defendants’ qualifiedimmunity defenses. In the sections that follow, we

examine Saunders’ specific allegations one by one.

After that, we address the district court’s conclusion

that Saunders’ complaints, even if insufficient standing alone to state a clearly established constitutional

violation, might do so in combination.

There is no doubt that the facts of this case, when

viewed in Saunders’ favor, paint a disturbing picture

of confinement in the Brevard County Jail. Taking

Saunders’ allegations at face value, we have evidence

of densely packed cells and undoubtedly difficult living

conditions. We take none of this lightly.

As Saunders repeatedly contends throughout his

brief, such conditions may well fall short of the Florida

Model Jail Standards. But our limited authority does

not extend to the question whether the defendants

have comported themselves in accordance with state

law; that is a question for another day, and probably

for another court. Rather, in this appeal we are

concerned only with the rights that the United States

Constitution guarantees, and whether the Brevard

County Jail fell short of constitutional requirements—

and, importantly, because we are faced with qualifiedimmunity defenses, did so in a way that violated

“clearly established” federal law. Because Saunders

cannot prove that the Jail’s conditions—as trying as

they may have been—violated his clearly established

constitutional rights, we must grant qualified immunity to defendants Wright and Jeter. This section

addresses Saunders’ separate claims in turn, ultimately

resolving each in the defendants’ favor.

10a

Saunders first alleges that the Bubble’s population

density produced “overcrowding” that violated his

Eighth Amendment rights. According to Saunders’

testimony, the number of inmates in the Bubble—“no

larger than 9-by-15”—fluctuated and at times held as

many as eight occupants. Saunders also argues that

the occupancy levels “engendered violence” and cites

testimony alleging space-related squabbles. We do not

doubt that such tight quarters may cause discomfort—

particularly when we consider the necessary proximity

between the cell’s toilet and inmates’ sleeping arrangements. But for better or worse, comfort is not the

Constitution’s test, see Rhodes, 452 U.S. at 349

(explaining that “the Constitution does not mandate

comfortable prisons,” and that prisons housing serious

criminals “cannot be free of discomfort”); rather, we

are concerned here with whether the Jail denied

Saunders the “minimal civilized measure of life’s

necessities.” Id. at 347.

The Supreme Court examined the constitutional

limits of overcrowding in Rhodes and ultimately

determined that “double celling” did not violate the

Eighth Amendment because the practice “did not

lead to deprivations of essential food, medical care,

or sanitation.” Id. at 347-48. Our Court has followed

the Supreme Court’s lead: “In assessing claims of

unconstitutionally overcrowded jails, courts must

consider the impact of the alleged overpopulation on

the jail’s ability to provide such necessities as food,

medical care, and sanitation.” Hamm v. DeKalb Cty.,

774 F.2d 1567, 1575 (11th Cir. 1985).

In its decision to deny the officers’ qualified-immunity defenses on summary judgment, the court below

stretched Rhodes past its breaking point. From Rhodes’

11a

premise that “cells at double capacity do not violate the

Eighth Amendment,” the district court reasoned to the

conclusion that cells past double capacity do violate

the Eighth Amendment—and, indeed, do so clearly

enough to defeat qualified immunity. With respect,

that does not follow. Rhodes holds only that doublecelling falls within constitutional parameters; it does

not hold (or even suggest) that anything north of

double-celling falls without. Contrary to the negative

implication that the district court drew, the Supreme

Court’s holding in Rhodes does not provide a one-sizefits-all framework for the constitutionality of prison

occupancy, let alone demarcate double-occupancy as

the Constitution’s hinge point. And in any event, a

mere negative implication, even if granted—here,

that greater prisoner density might run afoul of the

Constitution—cannot be the basis for a clearly

established right for qualified-immunity purposes.

Saunders fails to offer any precedent—for Rhodes

does not do it—establishing that the Bubble’s occupancy violated the Constitution, much less that the

officers culpably acted with “fair warning” of such a

violation. Hope, 536 U.S. at 741. The district court

therefore erred when it denied qualified immunity on

this ground.

Saunders also claims that the defendants violated

the Eighth Amendment by not giving him “any

exercise time, recreation time, or any time outside”

during his stay in the Bubble. Importantly, however,

Saunders has never alleged that the officers in fact

denied him the ability to exercise; instead, Saunders

says only that he “was never offered rec,” that he

“didn’t know [that the officers] let people out for rec,”

and that he only learned of recreational opportunities

12a

“after [he] got out and went back into mental health

housing and saw it when [he] went to rec from there.”

Another inmate provided similar testimony, explaining

that he was “not aware that [he] could have [recreation

time].” The district court determined that these statements produced a question of fact about whether the

officers violated Saunders’ clearly established Eighth

Amendment rights, and denied the officers’ qualifiedimmunity defense.

On its path to a triable issue of fact, the district

court stated that “there [was] no evidence refuting

Plaintiff’s claim that he did not have the ability to

exercise in his cell.” The district court erred here in a

few ways. First, the court misstated Saunders’ claim—

Saunders claimed only that he was ignorant of

potential recreation time and that the officers never

affirmatively offered it to him. Second, Saunders’

testimony suggests that the cell’s occupancy was

constantly changing, and, at least some of the time,

only “three or four” inmates shared the space. If

Saunders’ alleged “9-by-15” cell dimensions are accurate,

then three or four inmates would each have somewhere around 35-to-45 square feet of room to exercise

during periods of low occupancy, which would provide

ample space for most any stationary exercise regimen.

Finally, the district court failed to recognize that

this Court’s holding in Bass v. Perrin, 170 F.3d 1312

(11th Cir. 1999), precludes the possibility that a

right to be offered recreation time during confinement

could be clearly established. In Perrin, we held that

“complete denial to the plaintiffs of outdoor exercise,

although harsh, did not violate the Eighth Amendment”

because there was a “penological justification” for

keeping the plaintiffs in solitary confinement. Id. at

1316-17 (emphasis supplied). Here, Saunders’ suicide

13a

attempt justified the officers’ decision to assign

Saunders to the Bubble, and the record before us does

not demonstrate restrictions even as severe as those

that Perrin deemed constitutional—that is, Saunders

does not allege “complete denial . . . of outdoor

exercise,” let alone that the defendants deliberately

violated any clearly established constitutional right.

Saunders’ unsanitary-conditions allegations undoubtedly pose this case’s most difficult questions. Saunders

seems to allege three discrete violations: (1) deprivation

of toiletries; (2) inadequate cell cleaning; and (3) inadequate blanket cleaning. When viewed in the light most

favorable to Saunders, the record presents evidence of

undoubtedly unpleasant conditions. Even so, we conclude that none of Saunders’ claims can overcome the

defendants’ qualified-immunity defenses. While we

take no particular pleasure in foreclosing Saunders’

suit, we have no other choice; Saunders has simply

failed to meet his burden under our qualified-immunity framework.

Saunders and fellow inmates testified that the

defendant officers failed to provide the inmates with

ready access to soap or toilet paper, instead providing

these items only on request and, at times, taking up

to 45 minutes to do so. The officers do not dispute

Saunders’ assertions. Indeed, the officers explain that

this temporary deprivation was a feature, not a bug;

the Jail intentionally restricted the Bubble’s inmates’

access to these items due to concerns over their

physical safety and potential for self-harm.

Saunders’ toiletries-related assertions cannot overcome the defendants’ qualified-immunity defenses. In

14a

similar cases, this Court has “consistently held that

prison officials have a broad discretion to determine

the methods by which they will carry out their responsibilities,” particularly in the province of prisoner

safety. McMahon v. Beard, 583 F.2d 172, 175 (5th Cir.

1978) (holding that depriving a suicidal inmate of all

clothing and sheets for three months did not violate

the Constitution).1 Saunders fails to cite any precedent

to demonstrate that a prison procedure that temporarily inhibits suicidal inmates’ access to toiletries so

plainly violates an inmate’s clearly established Eighth

Amendment rights that qualified immunity does not

apply. In fact, available precedent (albeit from other

circuits) seems to point decisively in the other direction. Contrast, e.g., Lunsford v. Bennett, 17 F.3d 1574,

1580 (7th Cir. 1994) (“The chance of harm resulting

from the temporary failure to provide personal hygiene

items is too remote for plaintiffs to meet th[e] subjective requirement [of an Eighth Amendment claim].”).2

Decisions of the former Fifth Circuit rendered prior to close

of business on September 30, 1981, are binding on this Court. See

Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981)

(en banc).

The dissent analogizes this case’s facts to those in Chandler

v. Baird, 926 F.2d 1057 (11th Cir. 1991), to support the contention

that the guards’ policy of temporarily depriving inmates of

toiletries violated Saunders’ clearly established Eighth Amendment

rights. Dissent at 31-32, 41-43. But Baird is inapposite; there, we

held that permanent deprivation of certain toiletries—combined

with other sanitation issues that are absent from this case—

violated the Eighth Amendment. Baird, 926 F.2d at 1063. Here,

by contrast, Saunders and his fellow inmates only allege that

they did not have unfettered access to soap in their cells, and

Officer Wright’s unrebutted testimony explains that “[t]oilet

paper and soap were available to inmates upon request.”

15a

Saunders also argues that the officers were deliberately indifferent to the Bubble’s sanitation, thus

producing unconstitutionally unsanitary conditions in

the cells. Saunders alleges two theories to support this

contention. First, he claims that neither he nor his

fellow inmates ever “observed Jail orderlies change mop

water” when the orderlies cleaned the inmates’ cells,

even when the toilets overflowed. Second, he alleges

that inmates would urinate, defecate, and ejaculate

onto the cell’s floors and walls, and that the “Jail staff

did not clean human waste from inmate cells for

‘days.’” Although testimony from officers and fellow

inmates contradicts the testimony on which these claims

rely, at this stage we must focus only on the testimony

that supports Saunders’ allegations and take this

evidence as fact. See Ferraro, 284 F.3d at 1190.

We can make quick work of the first theory, since

the evidence which Saunders provides—testimony

alleging that officers would use the same mop

bucket for the Bubble’s 18 cells—cannot without more

detail (e.g., potential proof of the cleaning chemicals’

complementary ineffectiveness) create “an objectively

unreasonable risk of serious damage to his future

health.” Brooks, 800 F.3d at 1303 (quotation marks

omitted). More importantly for the purposes of this

analysis, however, Saunders fails to show that our

caselaw has clearly established the unconstitutionality of such a practice.

Saunders’ second theory is more serious. In Brooks,

this Court reviewed a ghastly record in which officers

allegedly denied an inmate the ability to lower his

pants while defecating, and, “[a]s a result, [the inmate]

was forced to defecate into his jumpsuit and sit in

his own feces for two days . . . .” 800 F.3d at 1303.

16a

There, we looked to the “‘well established’ Eighth

Amendment right ‘not to be confined in conditions

lacking basic sanitation’” and found that the “allegations state[d] an Eighth Amendment violation under

our caselaw.” Id. (quoting Chandler v. Baird, 926 F.2d

1057, 1065-66 (11th Cir. 1991)) (alterations omitted).

Although Saunders’ allegations fall short of the

egregious facts in Brooks, cases in which “the deprivation of basic sanitary conditions . . . constitute an

Eighth Amendment violation” are plentiful, and some

of them expressly hold that extended exposure to

human excrement violates the Constitution. See id. at

1304 (listing numerous cases from “every sister circuit

(except the Federal Circuit)” in which courts have

found that unsanitary conditions violated a plaintiff’s

Eighth Amendment rights).

Nevertheless, even if we were to grant the assumption that the evidence before us could demonstrate

levels of sanitation violative of Saunders’ rights,

Saunders’ claims would still fail to shoulder their

heavy burden under our Eighth Amendment qualifiedimmunity jurisprudence. Beyond our framework’s

first hurdle—that is, showing that the prison conditions deprived the inmate “of the minimal civilized

measure of life’s necessities,” Chandler, 379 F.3d

at 1289—a plaintiff still must satisfy two further

conditions in order to overcome a defendant’s qualifiedimmunity defense. The framework’s second, subjective

prong requires the plaintiff to prove that the defendant was “aware of facts from which the inference could

be drawn that a substantial risk of serious harm

exists, and [that the defendant] also [drew] the inference.” Id. at 1289-90; see also Farmer, 511 U.S. at 838;

Wilson v. Seiter, 501 U.S. 294, 298 (1991). Then, after

satisfying both the objective and the subjective tests,

the plaintiff finally must show that “a causal connec-

17a

tion” exists between the defendants and the Eighth

Amendment violation. Brooks, 800 F.3d at 1301. No

matter how favorably we construe the record before us,

Saunders cannot meet these hefty requirements.

Saunders fails to present evidence that Commander

Jeter knew or inferred that the Bubble was unconstitutionally unsanitary during the time that Saunders

was detained there. In his attempt to meet this requirement, Saunders offers three pieces of evidence. First,

Saunders cites his “appeal of grievance #09001676,”

which he filed on July 23, 2009. But the grievance

appeal never mentioned the Bubble’s sanitation

conditions; instead, the appeal focused entirely on

Saunders’ dissatisfaction with medical treatment that

he received in the prison. Second, Saunders cites a

fellow inmate’s deposition testimony in which the inmate

stated that “several inmates” complained about their

conditions of confinement, and that “[Jeter] said she

would address [the issues] but that never changed.”

Not only does the inmate’s statement constitute inadmissible hearsay which “cannot be considered on a

motion for summary judgment,” Macuba v. Deboer,

193 F.3d 1316, 1322 (11th Cir. 1999), but the testimony refers only to general sanitation concerns and

does not corroborate Saunders’ specific claims—in

fact, this inmate described conditions in which officers

would take, at most, “three, four hours” to clean a

befouled cell, and therefore the conditions about which

the inmate alleges Jeter was aware would likely have

fallen within constitutional bounds. Third, Saunders

points to a letter that he sent on February 19, 2009,

which, though it was not addressed to Jeter, was likely

received and reviewed by him. Notably, unlike the

appeal of the grievance, the letter does contain fairly

detailed descriptions of the unsanitary conditions in

the Bubble. However, even assuming that the letter

18a

creates a material issue as to whether Jeter knew of

the unsanitary conditions in the Bubble, the letter

was not written until approximately five months

after Saunders was discharged from the Bubble in

2008. Accordingly, the letter does not demonstrate

that Jeter’s alleged action or inaction with respect to

the conditions in the Bubble had any causal connection

to the 65 days that Saunders spent there in 2008, and

thus cannot support Saunders’ claimed constitutional

deprivation. See Brooks, 800 F.3d at 1301.

Saunders’ attempt to prove Officer Wright’s “culpable

state of mind” fares no better. Saunders asserts that

“Wright’s mere presence in the Bubble on a daily basis

is itself sufficient to deny summary judgment because

there is a factual issue as to whether he personally

observed the inhumane conditions of confinement that

Saunders experienced.” Even if his conclusion logically

followed, Saunders’ argument omits essential—and

undisputed—facts that are fatal to his premise. Wright

testified without contradiction that he worked “twelve

hour day shifts, three to four days per week.” Saunders

spent 69 days in the Bubble. Vague allegations that

“Jail staff did not clean human waste from inmate

cells for ‘days,’” without a more specific indication that

Wright in particular (who worked only three to four

days a week) was present to witness the problems,

simply are not sufficient to demonstrate that Wright

himself displayed the deliberate indifference that our

Eighth Amendment jurisprudence requires.3

To be clear, Saunders’ allegation fails not because of Officer

Wright’s “part-time” employment status (Dissent at 34), but

instead, as explained in text, because Saunders fails to adequately show that Officer Wright clearly knew about the alleged

delay in cleaning human waste.

19a

Beyond the insufficient access to toiletries and

indifference to cleanliness, Saunders also alleges that

“the Jail never washed his Jail-issued blanket and

never did a blank[et] exchange.” But the testimony to

which Saunders cites to support this claim alleges only

that “[the Jail] didn’t do a blanket exchange,” meaning

that inmates “pretty much had the same blanket the

whole time [they] [were] in there”; Saunders cites to

no evidence—not even his own testimony—to support

the claim that the “Jail never washed his Jail-issued

blanket.” To the contrary, Saunders testified that he

“would see [the officers] wash and reuse the blankets.”

The last claim for us to consider is Saunders’

assertion that “Wright forced Saunders to sit in dangerously high temperatures” and provided inadequate

ventilation in his cell, which, Saunders says, ultimately

caused him to “suffer[] a mental breakdown and panic

attack.” This is a serious allegation, as we have recognized that “the Eighth Amendment applies to prisoner

claims of inadequate cooling and ventilation.” Chandler,

379 F.3d at 1294. Our Eighth Amendment jurisprudence focuses on “both the severity and the duration of

the prisoner’s exposure to inadequate cooling and ventilation,” even while recognizing that “a prisoner’s mere

discomfort, without more, does not offend the Eighth

Amendment.” Id. at 1295 (quotation marks omitted).

Even the most charitable view of the record before

us does not show that the Bubble’s ventilation—or lack

thereof—produced the “excessive risk to inmate health

or safety” that the law requires. Farmer, 511 U.S. at

837. Although Saunders testified that “it was summer,

so the cells were always hot” and that he found the

20a

ventilation unsatisfactory, he provides only one

specific example of what he alleges to have been

unconstitutionally inadequate cooling: For a period of

up to two days, the “AC vent . . . was blowing no air”

and had “stopped working,” thus allegedly causing

Saunders to experience a panic attack during which

he repeatedly slammed his head against a metal

doorframe, resulting in gashes and stitches.

While surely unpleasant, this episode does not

describe clearly unconstitutional conditions. Indeed,

this Court has held that a Florida prison did not

violate the Eighth Amendment even when it provided

no air conditioning whatsoever during the summer

months. See Chandler, 379 F.3d at 1297-98. And

ultimately, Saunders’ extreme reaction cannot alter

our analysis; to hold otherwise would permit an

inmate’s subjective characteristics and behavior to

bend objective standards, directly contravening our

binding precedent.4

The dissent asks, “How can it be disputed that during the five

minutes Mr. Saunders was banging his head against the steel

door—with blood streaming down his face—he was under a

‘substantial risk of serious harm’?” Dissent at 36. With respect,

we think that the premise of the question misses the mark, for it

is the conditions themselves that must pose the “risk of serious

harm.” Farmer, 511 U.S. at 834. The dissent attempts to bridge

that gap by rehashing Saunders’ panic-attack episode, suggesting

that the guards knew of Saunders’ capacity for self-harm, and

then concluding that “the circumstances created a substantial

risk that [Saunders’] mental condition would severely deteriorate,” thus “satisfy[ing] the Eighth Amendment’s objective prong.”

Dissent at 37. But the cases that our colleague cites for support

are inapposite and do not suggest that the Bubble’s temporary

ventilation failure violated any constitutional right, let alone one

that is clearly established.

21a

Having determined that none of Saunders’

individual allegations can overcome the defendants’

qualified-immunity defenses, we must address a final,

critical error in the district court’s holding. The court

reasoned that even though “some of Plaintiff’s complaints standing alone . . . may not pass constitutional

muster,” Supreme Court precedent permits the amalgamation of otherwise insufficient claims because

“some conditions of confinement may establish an

Eighth Amendment violation ‘in combination’ when

each would not do so alone . . . .” Dist. Ct. Op. at

22-23 (quoting Wilson, 501 U.S. at 304 (emphasis in

original)). The district court thus concluded that

“whether a combination of these issues constitutes

cruel and unusual punishment is an issue of fact for

the jury to decide.”

But the district court’s ellipses mute essential text

in which the Wilson Court qualified its preceding

statement, explaining that such aggregation may occur

“only when [the alleged violations] have a mutually

enforcing effect that produces the deprivation of a

single, identifiable human need such as food, warmth,

or exercise—for example, a low cell temperature at

night combined with a failure to issue blankets.”

Wilson, 501 U.S. at 304. Contrary to the district court’s

suggestion, the Wilson Court expressly stated that

“[n]othing so amorphous as ‘overall conditions’ can rise

to the level of cruel and unusual punishment when

no specific deprivation of a single human need exists.”

Id. at 305.

The district court failed to identify what “single

human need” the Jail’s conditions denied Saunders,

and seems to have engaged in the very sort of reasoning that the Wilson Court’s guidance prohibits—that

22a

is, vague disapproval of Saunders’ overall confinement

conditions. Moreover, even when we analyze all of

Saunders’ claims holistically, the broad swath of allegations fails to illustrate the deprivation of either

the Wilson Court’s “single, identifiable human need”—

whether “basic sanitation” (Dissent at 30) or otherwise—

or the Rhodes Court’s “minimal civilized measures of

life’s necessities.”5

For the foregoing reasons, we DISMISS the

defendants’ appeal of Saunders’ Monell claim and

REVERSE the district court’s denial of the defendants’

motion for summary judgment on qualified-immunity

grounds.

The dissent mistakenly suggests that our critique of the

district court’s analysis indicates that we “did not truly weigh all

of this evidence together,” even though “our precedent requires

us to do so.” Dissent at 30. To be clear, we did weigh the relevant

evidence together; we have simply concluded that the defendants

did not violate Saunders’ clearly established Eighth Amendment

right to basic sanitation. The problem with the district court’s

approach was not a problem with amalgamation as such.

Rather, the district court erred by combining a variety of

Eighth Amendment issues but failing to identify which “single,

identifiable human need” was denied. Dist. Ct. Op. at 18-23

(amalgamating disparate allegations, including overcrowding,

lack of exercise, cleaning, access to hygiene products, ventilation,

temperature, sleeping arrangements, and showering, and ultimately concluding that these, together, may have violated Saunders’

Eighth Amendment rights).

23a

MARTIN, Circuit Judge, dissenting in part:

Oberist Saunders filed suit against officials at the

Brevard County Jail on account of the squalid

conditions he was forced to live in while imprisoned

there. Rather than allow Mr. Saunders to present his

evidence to a jury, my colleagues in the majority rely

on the doctrine of qualified immunity to end his case

here. This case involves the denial of basic human

necessities, which is a well-established constitutional

right, even for prisoners. Our Circuit precedent, properly

applied, would give Mr. Saunders an opportunity to

redress the harms inflicted on him.

My review of the record reveals that Mr. Saunders

has substantiated two independent Eighth Amendment

violations that should survive summary judgment.

The first is based on Corporal Wright’s deliberate

indifference to the unsanitary conditions in the acute

pod where Mr. Saunders was housed for at least

69 days. The second is based on Corporal Wright’s

deliberate indifference to Mr. Saunders’s panic attack

and self-harming behavior on August 3, 2008. The

District Court denied qualified immunity to Corporal

Wright, and I think it was right to do so. I therefore

dissent from the opinion issued by my colleagues

reversing the District Court decision in this regard.

I. LEGAL STANDARD

Eighth Amendment challenges1 to conditions of

confinement require a two-part analysis: an objective

Mr. Saunders was locked up in the acute pod both before

and after his conviction. “While the conditions under which a

convicted inmate are held are scrutinized under the Eighth

Amendment’s prohibition on cruel and unusual punishment, the

conditions under which a pretrial detainee are held are reviewed

under the Due Process Clause of the Fourteenth Amendment.”

24a

inquiry and a subjective one. Farmer v. Brennan, 511

U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994). “First,

under the objective component, a prisoner must prove

that the condition he complains of is sufficiently

serious to violate the Eighth Amendment.” Chandler

v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)

(quotation omitted). The prisoner must show that the

condition was “extreme” and that it “pose[d] an unreasonable risk of serious damage to his future health or

safety.” Id. (quotations omitted). “Only a deprivation

which denies ‘the minimal civilized measure of life’s

necessities,’ is grave enough to violate the Eighth

Amendment.” Jordan v. Doe, 38 F.3d 1559, 1564 (11th

Cir. 1994) (quoting Rhodes v. Chapman, 452 U.S. 337,

347, 101 S. Ct. 2392, 2399 (1981)).

The second step of the analysis is “the subjective

component.” Id. at 1564. Under this component, the

prisoner must show that the defendant prison official

acted with “deliberate indifference” toward the conditions at issue. Chandler, 379 F.3d at 1289. Deliberate

indifference is established by showing: “(1) subjective

knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than mere

negligence.” McElligott v. Foley, 182 F.3d 1248, 1255

(11th Cir. 1999). Thus, putting the objective and

subjective components together, we have said: “A

prison official’s deliberate indifference to a known,

substantial risk of serious harm to an inmate violates

Jacoby v. Baldwin Cty., 835 F.3d 1338, 1344 (11th Cir. 2016). But

while the constitutional source differs, this Circuit ruled in

Hamm v. DeKalb Cty., 774 F.2d 1567 (11th Cir. 1985), that “in

regard to providing pretrial detainees with such basic necessities

as food, living space, and medical care[,] the minimum standard

allowed by the due process clause is the same as that allowed by

the eighth amendment for convicted persons.” Id. at 1574.

25a

the Eighth Amendment.” Marsh v. Butler Cty., 268

F.3d 1014, 1028 (11th Cir. 2001) (en banc), abrogated

on other grounds by Bell Atl. Corp. v. Twombly, 550

U.S. 544, 561–63, 127 S. Ct. 1955, 1968–69 (2007).

At this stage in the proceedings, we analyze claims

based on “the plaintiff’s version of the facts.” Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

II. UNSANITARY CONDITIONS OF CONFINEMENT

A. OBJECTIVE CONSTITUTIONAL VIOLATION

This Court has “long recognized a ‘well established’

Eighth Amendment right ‘not to be confined . . .

in conditions lacking basic sanitation.’” Brooks v.

Warden, 800 F.3d 1295, 1303 (11th Cir. 2015) (quoting

Chandler v. Baird, 926 F.2d 1057, 1065–66 (11th Cir.

1991)); see also Novak v. Beto, 453 F.2d 661, 665

(5th Cir. 1971) (collecting previous cases that held

“the deprivation of basic elements of hygiene” violates

the Eighth Amendment). Mr. Saunders’s evidence is

sufficient for a reasonable jury to find that conditions

in the acute pod “lack[ed] basic sanitation.” Brooks,

800 F.3d at 1303 (quotation omitted). This is true both

when considering his sanitation claims in isolation, as

the majority did, and in conjunction with his claims of

overcrowding and lack of basic hygienic necessities.

The majority did not truly weigh all of this evidence

together—performing this analysis in a single sentence—

although I believe our precedent requires us to do so.

See Majority Op. 26. Legal precedent tells us that the

conditions complained of “have a mutually enforcing

effect that produces the deprivation of a single,

identifiable human need”: basic sanitation. Wilson v.

26a

Seiter, 501 U.S. 294, 304–05, 111 S. Ct. 2321, 2327

(1991).

Inmates in the acute pod, including Mr. Saunders,

were forced to walk barefoot in cells covered with

virtually every type of bodily waste and fluid, from

urine and feces to semen and vomit. Because there

were no beds in the cells, nor any other type of platform above the floor, Mr. Saunders and his cell-mates

had to sleep on mats directly on the waste-filled floor.

Mr. Kenney, another inmate exposed to conditions

in the acute pod, described these conditions in his

deposition: “I’m walking in [urine,] I’m tracking it

across [the cell] and I’m getting it in my mat, then I’m

sitting there laying in it. . . . So in essence, I’m sleeping

in [urine].” And even though the sleeping bag-style

mats were immediately and constantly soiled, Mr.

Saunders testified that he was never given new

bedding and thus had to sleep on the soiled mat for

months at a time.

Beyond the unsanitary sleeping conditions, Mr.

Saunders was also forced to eat in unsanitary conditions. The jail prohibited inmates in the acute pod

from having soap in their cells and also prohibited

(and did not provide) eating utensils. As a result,

inmates were forced to eat with their bare hands that

they were not able to wash after going to the bathroom. This is especially unsanitary given that the

inmates’ hands were likely to be exposed to excrement

because there was no toilet paper in their cell, and

toilet paper was only provided when the inmates

requested it. Then when given, it was in inadequate

amounts. See Baird, 926 F.2d at 1063–66 (holding that

“conditions lack[ed] basic sanitation” in violation of

the Eighth Amendment where there was “filth on the

cell’s floor and walls” and inmates were deprived of

27a

“basic hygiene articles” such as “soap, toothbrush,

toothpaste, and [clean] linen[s]”).

Mr. Saunders was made to live in these conditions

for at least 69 days. He has thus shown a “prolonged

exposure” to human waste, which we have said “sufficiently allege[s] a substantial risk of serious harm.”

Brooks, 800 F.3d at 1305; see also DeSpain v. Uphoff,

264 F.3d 965, 974 (10th Cir. 2001) (“Exposure to

human waste, like few other conditions of confinement, evokes both the health concerns emphasized in

Farmer and the more general standards of dignity

embodied in the Eighth Amendment.”); Howard v.

Adkison, 887 F.2d 134, 136 (8th Cir. 1989) (noting that

“inmates are entitled to reasonably adequate sanitation” and finding Eighth Amendment violation where

cell was “covered with . . . human waste”). Mr. Saunders

therefore satisfies the objective element of an Eighth

Amendment violation based on the unsanitary conditions in the acute pod.

The majority excused the lack of basic hygiene

articles, saying that the Jail “intentionally restricted

the Bubble’s inmates’ access to these items due to

concerns over their physical safety and potential for

self-harm.” Majority Op. 16. But the majority never

asked for or got an explanation for how depriving

inmates of basic sanitation contributes to that goal.

Neither does the majority follow this court’s binding

precedent in Baird, which held that depriving inmates

of “basic hygiene articles” such as “soap, toothbrush,

toothpaste, and [clean] linen” violated the Eighth

Amendment. Id., 926 F.2d at 1063–64.2

Whether the deprivation of toiletries was permanent or

temporary, it is clear Mr. Saunders has alleged he was

28a

The majority also credited the defendants’ assertion,

as opposed to the facts alleged by Mr. Saunders, that

the cells were cleaned to undercut any allegation of

unsanitary conditions. All sides agree that jail staff

made a pass at cleaning the cells twice a week.

However, Mr. Saunders’s evidence shows that these

“cleanings” were not adequate to maintain sanitary

conditions. For starters, the cleaning was minimal: the

jail did not “wipe down” and “sanitize” the cells, but

instead did only “a quick sweep and mop.” Further, the

evidence shows that cleaning twice a week simply

was not enough. Washing a cell twice a week might

be adequate when a cell holds one or even two or

three healthy inmates. See Novak, 453 F.2d at 665–66

(finding that prison met the “basic elements of hygiene”

where single-occupant non-mental health cells “are

scrubbed by the guards . . . at least three times a

week”). But here there were typically five to eight

inmates—many with psychiatric disorders—living in

cells that were at most 9 feet by 15 feet. Because of

their mental illness, many of these inmates did not

have proper control of their bodily fluids. The result of

overcrowding mentally ill inmates in the acute pod

was that urine “was on the floor all the time” and

inmates lived, ate, and slept “[t]ightly” “like sardines”

on the urine soaked and filthy floor. The facts speak

for themselves: the twice weekly cleanings simply did

not alleviate the unsanitary state of the acute pod cells.

B. DELIBERATE INDIFFERENCE TO THE

VIOLATION

Mr. Saunders has also established that Corporal

Wright was deliberately indifferent to the overcrowded

meaningfully deprived of basic human hygiene. See Majority Op.

17 & n.2.

29a

and unsanitary conditions of the acute unit generally.

Corporal Wright was the “Officer in Charge” in the

acute pod and “oversaw daily operations” there.

Unlike Commander Jeter, he was not a high-level

administrator far removed from the conditions on the

ground. Corporal Wright stepped in “during deputies’

breaks” to do “inmate watches”; “cleaned cells when

needed”; and “regularly checked on inmates” The

majority dismisses Corporal Wright’s closeness to the

conditions in the cells because he “worked only three

to four days a week.” Majority Op. 22. But this ignores

what Wright was doing during those days in the pod.

It was Corporal Wright who was directly responsible

for “daily” conditions in the pod and who was

physically present in the unsanitary cells such that he

personally observed the conditions. And in any event,

I am aware of no legal principle that exempts parttime employees from meeting their constitutional

obligations. Mr. Saunders’s allegations are enough for

a reasonable jury to infer that he had subjective

knowledge of the risk of harm those conditions posed.

See Farmer, 511 U.S. at 842, 114 S. Ct. at 1981.

A jury could also find that Corporal Wright

knowingly disregarded the substantial risk of harm

for reasons beyond mere negligence. We know that

Corporal Wright knew of the filthy conditions in the

acute pod cells and was charged with overseeing the

housing unit, and yet the conditions remained virtually “the same,” with no improvement in sanitary

practices. Mr. Saunders testified that when “inspectors

or guests” would come through the acute pod, the

officers would specially clean the cells and bring in

“little plastic platforms” for inmates to sleep on “to get

people off the concrete.” Then after the visitors left,

the plastic platforms were removed and the conditions

in the pod would return to normal. These striking

30a

allegations, never mentioned in the majority opinion,

certainly suggest that Corporal Wright knew it was

a problem for inmates to be sleeping on the filth of

the cell floor, and knew of ways to keep that from

happening. At the same time there is no evidence

Corporal Wright undertook any of those improvements on an ongoing basis. See Farmer, 511 U.S. at

842, 114 S. Ct. at 1981 (subjective knowledge may be

“demonstrate[ed] in the usual ways, including inference

from circumstantial evidence, and . . . from the very

fact that the risk was obvious” (citation omitted)).

Based on this evidence, Mr. Saunders has “demonstrate[d] that, with knowledge of the infirm conditions,

[Corporal Wright] knowingly or recklessly declined to

take actions that would have improved the conditions.”

LaMarca v. Turner, 995 F.2d 1526, 1537 (11th Cir.

1993). Mr. Saunders has therefore satisfied the subjective element of his Eighth Amendment claim against

Corporal Wright.

III. FAILURE TO INTERVENE DURING SELFHARM

A. OBJECTIVE CONSTITUTIONAL VIOLATION

In addition to the jail’s unsanitary conditions, Mr.

Saunders has also stated a claim that Corporal Wright

violated his rights under the Eighth Amendment

based on the August 3, 2008 incident in which Mr.

Saunders harmed himself. Mr. Saunders alleged that,

on that day, Corporal Wright “ignored” his pleas to

“alleviate the serious conditions of the Bubble”—heat

and overcrowding—that caused him to have a “panic

attack and mental breakdown.” According to Mr.

Saunders, Corporal Wright then watched without

intervening for five minutes while Mr. Saunders

suffered a panic attack and “uncontrollably repeatedly

31a

bang[ed] his head against the steel door of the cell,

resulting in a serious injury.”

As I’ve said, in order to satisfy the objective prong of

the Eighth Amendment analysis, Mr. Saunders must

show he was “incarcerated under conditions posing a

substantial risk of serious harm.” Farmer, 511 U.S. at

834, 114 S. Ct. at 1977. How can it be disputed that

during the five minutes Mr. Saunders was banging his

head against the steel door—with blood streaming

down his face—he was under “a substantial risk of

serious harm”? See id. But beyond that, a reasonable

jury could also find Mr. Saunders was under a substantial risk of serious harm in the moments before he

began violently engaging in self-harm. The record

before us establishes that Mr. Saunders suffered from

anxiety and panic attacks. Just four days before the

August 3rd incident, he had a panic attack that caused

him to repeatedly bang his head against the wall. And

just one week before that first head-banging episode,

Mr. Saunders attempted suicide by cutting his wrists.

Ultimately, on August 3, 2008 his cell in the acute

pod was “severely overcrowded” with at least eight

inmates in it, and with no air conditioning, because it

had “stopped working.” According to Mr. Saunders,

this caused the cell to be “real stuffy” and “stinking”

because there was no “air getting in[to] the cell.”

Compounding these problems were the underlying

unsanitary conditions in the acute pod I’ve described

above. Mr. Saunders told Corporal Wright these conditions were exacerbating his claustrophobia and causing

him to “hav[e] problems breathing.” He further told

Corporal Wright he needed “some air flowing” so he

“could recover.” In light of Mr. Saunders’s serious

mental illnesses and multiple, recent instances of

suicidal and self-injurious behavior, and his plea for

32a

relief from the overcrowded and filthy conditions

that existed that day, a reasonable jury could find that

the conditions in his cell on August 3rd created a

“substantial risk of serious harm” to Mr. Saunders’s

mental health. Id. Even if the particular type of selfharming behavior (violent head-banging) was not

foreseeable,3 the circumstances clearly created a substantial risk that his mental condition would severely

deteriorate. That is sufficient to satisfy the Eighth

Amendment’s objective prong. See Thomas v. Bryant,

614 F.3d 1288, 1312 (11th Cir. 2010) (“[M]ental

health needs are no less serious than physical needs

for purposes of the Eighth Amendment.” (quotation

omitted)); Waldrop v. Evans, 871 F.2d 1030, 1036

(11th Cir. 1989) (“[P]rison officials have an obligation

to take action or to inform competent authorities once

the officials have knowledge of a prisoner’s need for

medical or psychiatric care. . . . [F]ailure to notify

competent officials of an inmate’s dangerous psychiatric state can constitute deliberate indifference.”).

B. DELIBERATE INDIFFERENCE TO THE

VIOLATION

Corporal Wright’s deliberate indifference during the

August 3rd incident is clear. Corporal Wright was in

the overcrowded acute unit with Mr. Saunders in the

moments before—and during—his panic attack. Before

his panic attack started, Mr. Saunders “explained” the

situation to Corporal Wright, including that the “AC

[was] not working” and that he was “claustrophobic

[and] was having problems breathing.” He implored

Corporal Wright to give him some sort of relief, asking

if he could “move [the inmates] to . . . other cells,” or

Mr. Saunders had done it before, so I believe it was

foreseeable.

33a

“provide air in the cell, either put the bean flap down,

put a fan in front of the door to get some air flowing in

there.” Mr. Saunders even suggested that the officers

put him “in the strap chair” if that would be necessary

to take him out of the cell “for a while till [he] could

recover.” Of course, beyond what Mr. Saunders told

Corporal Wright, the corporal also knew that Mr.

Saunders was acutely mentally ill. After all, that was

the reason he had been housed in the acute unit in the

first place. Corporal Wright was thus plainly aware

of the risk Mr. Saunders faced from the conditions in

his cell. See Brooks, 800 F.3d at 1305 (concluding that

prison officer was “plainly aware of the risk [the

inmate] faced” because the inmate “alleged that he

repeatedly begged [the officer] to . . . remove” the

condition causing the substantial risk of harm).

Mr. Saunders has also shown the remaining elements of deliberate indifference: namely, that Corporal

Wright disregarded the risk of serious harm to Mr.

Saunders by more than negligence. McElligott, 182

F.3d at 1255. Corporal Wright refused to take any

action at all to alleviate Mr. Saunders’s condition, even

after Mr. Saunders himself suggested a variety of

simple measures that could have helped. Corporal

Wright then stood there with other officers watching

and laughing for five minutes as Mr. Saunders “split

[his] head open” from his self-harming behavior. This

is textbook deliberate indifference. See Brooks, 800

F.3d at 1305 (concluding that prison officer who

repeatedly “refused [the inmate’s] requests to use the

toilet” was deliberately indifferent because the officer

“subjected [the inmate] to derision and ridicule while

he was forced to repeatedly soil himself.”).

34a

IV. QUALIFIED IMMUNITY

In addition to establishing that Corporal Wright

violated his rights under the Eighth Amendment,

Mr. Saunders must also overcome Corporal Wright’s

assertion of qualified immunity. The defense of

qualified immunity “completely protects government

officials performing discretionary functions from suit

in their individual capacities unless their conduct

violates ‘clearly established statutory or constitutional

rights of which a reasonable person would have

known.’” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th

Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739,

122 S. Ct. 2508, 2515 (2002)).

In deciding whether an officer is entitled to qualified

immunity, we conduct a two-part inquiry. First,

we ask whether the defendant’s “conduct violated a

constitutional right.” Id. at 1234 (quotation omitted).

Second, we ask whether the violation was “clearly

established” at the time of the alleged misconduct.

Id. at 1233 (quotation omitted). A right is clearly

established if it would have been “clear to a reasonable

officer that his conduct was unlawful in the situation

he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121

S. Ct. 2151, 2156 (2001). The “salient question” is

whether the state of the law at the time of the alleged

misconduct gave the defendants “fair warning” that

their actions were unconstitutional. Hope, 536 U.S. at

741, 122 S. Ct. at 2516.

Having already determined that Corporal Wright’s

conduct violated the Eighth Amendment, I turn now

to whether the Eighth Amendment right at issue was

“clearly established.”

35a

A. UNSANITARY CONDITIONS

Mr. Saunders has shown that his rights were clearly

established with respect to the general lack of sanitation in the acute pod. In Baird, this Court addressed

whether unsanitary conditions of confinement violated

the Eighth Amendment, and also considered whether

the defendants were entitled to qualified immunity.

926 F.2d at 1063–66. The conditions at issue in Baird

included: “a plastic-covered mattress without bedding;

filth on the cell’s floor and walls; deprivation of toilet

paper for three days; deprivation of running water for

two days; lack of soap, toothbrush, toothpaste, and

linen; and the earlier occupancy of the cell by an

inmate afflicted with an HIV virus.” Id. at 1063. We

concluded that these conditions did not meet “the minimal standards required by the Eighth Amendment.”

Id. at 1065. In denying qualified immunity to the

prison officials, we held that “the right of a prisoner

not to be confined in a cell . . . in conditions lacking

basic sanitation” has been clearly established since

1986. Id. at 1065–66. Two decades earlier, in Novak,

our predecessor court surveyed cases finding an

Eighth Amendment violation based on conditions of

confinement and concluded: “[T]here is a common

thread that runs through all these cases . . . . That

thread is the deprivation of basic elements of hygiene.”

See Novak, 453 F.2d at 665.

Under Baird and Novak, a reasonable officer in

Corporal Wright’s position would have known that the

unsanitary conditions in the acute pod violated the

Eighth Amendment. See Brooks, 800 F.3d at 1306–07

(holding that “Baird and Novak, together, would have

provided fair and clear warning that [an inmate’s]

alleged treatment would violate the Eighth Amendment,”

where the inmate was “forced to sit in his own feces for

36a

an extended period of time”). It’s true that neither

Baird nor Novak involved the precise circumstances at

issue here. But “[e]xact factual identity with a previously decided case is not required.” Coffin v. Brandau,

642 F.3d 999, 1013 (11th Cir. 2011) (en banc); see

Hope, 536 U.S. at 741, 122 S. Ct. at 2516 (“[O]fficials

can still be on notice that their conduct violates

established law even in novel factual circumstances.”).

Despite certain factual differences between the facts

in Baird and Novak and the facts here, this precedent

made clear that two specific aspects of the unsanitary

conditions in the acute pod constituted unconstitutional conditions. Hope, 536 U.S. at 741, 122 S. Ct. at

2516. First, Novak noted that “proximity to human

waste” often constitutes a “deprivation of basic elements

of hygiene” in violation of the Eighth Amendment.

Brooks, 800 F.3d at 1306 (quotation omitted). Mr.

Saunders has shown that he was directly exposed to

human waste and other bodily fluids for extended

periods of time, including where he slept and ate.

Second, this Court expressly held that conditions

lacking “the provision of hygiene items[] violate[] the

minimal standards required by the Eighth Amendment.”

Baird, 926 F.2d at 1066. The record here shows that

the jail prohibited inmates in the acute pod from

having many basic “hygiene items,” including toothbrushes, toothpaste, eating utensils, clean sleeping

mats, and most importantly hand soap. This closely

matches the items that the inmates in Baird were

deprived of: “soap, toothbrush, toothpaste, and [clean]

linen[s].” 926 F.2d at 1063. In sum, Baird, Brooks, and

Novak gave Corporal Wright “fair warning” that the

unsanitary conditions of the acute pod—particularly

the combination of proximity to human waste and the

lack of hand soap—violated Mr. Saunders’s Eighth

Amendment rights. Hope, 536 U.S. at 741, 122 S. Ct.

37a

at 2516. Because Corporal Wright’s Eighth Amendment violation was clearly established, he is not

entitled to qualified immunity.

B. FAILURE TO

SELF-HARM

INTERVENE

DURING

The core of the Eighth Amendment is the prohibition on conduct that “involve[s] the unnecessary and

wanton infliction of pain.” Estelle v. Gamble, 429 U.S.

97, 103, 97 S. Ct. 285, 290 (1976) (quotation omitted).

According to Mr. Saunders’s facts, Corporal Wright

stood watching for five minutes as Mr. Saunders

“uncontrollably” banged his head against the steel

door of his cell. The head banging was so violent “there

was blood on the door and he was bleeding down his

face,” and Mr. Saunders needed stitches to close his

wounds. Allowing Mr. Saunders to injure himself like

this without coming to his aid for five minutes is a

stark example of the “unnecessary and wanton

infliction of pain.” See id. As this Court has held, “[t]he

law [is] clear . . . that prison officials have an obligation

to take action . . . once the officials have knowledge of

a prisoner's need for medical or psychiatric care.”

Waldrop, 871 F.2d at 1036. Indeed, Corporal Wright

and his deputies not only stood by but “laughed at [Mr.

Saunders] while he was beating his head on the door.”

Laughing at a mentally ill inmate’s violent selfharming behavior is “an act of obvious cruelty” for

which there is no qualified immunity. See Brooks, 800

F.3d at 1307 (quotation omitted) (denying qualified

immunity to officer who was “[l]aughing at and ridiculing an inmate who [was] forced to sit in his own feces

for an extended period of time”). The majority opinion

distinguishes the facts of Brooks as “ghastly.” Majority

Op. 18. However, the gratuitous cruelty of laughing at

suffering inmates is common to the allegations made

38a

by Mr. Brooks in his case and those made by Mr.

Saunders here.

V. CONCLUSION

Mr. Saunders deserves an opportunity to present a

jury with his claims that Corporal Wright subjected

him to inhumane conditions of confinement. He has

demonstrated two claims that should survive summary

judgment, and I would affirm the District Court’s

denial of qualified immunity on those claims.4

The majority assures us that it “take[s] no particular pleasure,” in the outcome of this case, Majority Op.

16, but we are judges, whose job demands application

of the constitutional principles, not expressions about

our feelings. And the majority opinion is mistaken

when it declares “we have no other choice” but to

foreclose this suit. Id. This court can recognize the

flagrantly unconstitutional conditions of confinement,

and in fact is obligated to do so. Instead, the majority

opinion downplays the conditions Mr. Saunders faced,

describing them as “troubling” and “unpleasant.” Id.

at 10, 16. These adjectives do not accurately describe

the gratuitous cruelty Mr. Saunders endured at the

Brevard County Jail. Our Constitution does not turn a

blind eye to these types of conditions, and neither

should we.

For these reasons, I dissent.

I concur with the holding of the majority on Mr. Saunders’s

remaining claims.

39a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

————

No. 16-17607

District Court Docket No. 6:14-cv-00877-GAP-DCI

————

OBERIST LEE SAUNDERS,

Plaintiff-Appellee,

versus

SHERIFF OF BREVARD COUNTY, in his official capacity,

Defendant-Counter Claimant-Appellant,

SUSAN JETER, in her individual capacity,

JOHN C. WRIGHT, in his individual capacity,

Defendant-Appellants,

PATRICIA TILLEY, in her individual capacity,

Defendant.

————

Appeal from the United States District Court

for the Middle District of Florida

————

JUDGMENT

Before MARCUS, MARTIN, and NEWSOM, Circuit

Judges.

It is hereby ordered, adjudged, and decreed that the

opinion issued on this date in this appeal is entered as

the judgment of this Court.

Entered: May 17, 2018

For the Court: DAVID J. SMITH, Clerk of Court

By: Djuanna Clark

40a

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

[Filed 11/21/16]

————

Case No. 6:14-cv-877-Orl-31DAB

————

OBERIST SAUNDERS,

Plaintiff,

SHERIFF OF BREVARD COUNTY, et al.,

Defendants.

————

ORDER

This cause is before the Court on the Third Amended

Complaint filed by Oberist Saunders (Doc. 62) and the

Motion for Summary Judgment filed by Defendants

Sheriff of Brevard County, Susan Jeter, Patricia Tilley,

and John C. Wright (Doc. 169).1 Plaintiff has filed a

Memorandum of Law in Opposition to the Motion

(Doc. 181).

I. BACKGROUND

Plaintiff, a prisoner in the State of Florida, filed

this action pursuant to 42 U.S.C. § 1983 against

Defendants for claims arising out of his detention at

the Brevard County Jail (“Jail”) (Doc. No. 62 at 4).

Defendants Sedaros, Bourke, Nunez, Tite, Mangual, Wang,

and Cornelius have been voluntarily dismissed from this action

(Doc. Nos. 98, 155, and 183).

41a

Plaintiff arrived at the Jail on June 11, 2008 (Doc.

177-5 at 15-19). According to Plaintiff, he informed

the Jail’s medical staff of his mental health issues,

including anxiety and panic attacks, claustrophobia,

insomnia, and manic depression (Doc. 62 at 4).

The intake screening report reflects that Plaintiff

informed Jail staff that he had anxiety, was prescribed

Oxycodone, Xanax, and Soma, and had a dependence

on cocaine (Doc. 177-6 at 6-7). Nurse Carpentier

referred Plaintiff for mental health screening as a

routine measure (Doc. 177-8 at 30). Plaintiff was

placed in one of the mental health housing pods of the

Jail (Tilley Depo., Doc. 171 at 14).

Dr. Perez, a psychiatrist, evaluated Plaintiff on

June 26, 2008, and diagnosed Plaintiff with cocaine

dependency, anxiety, and antisocial features (Doc.

177-8 at 21). Dr. Perez prescribed Klonopin to treat

Plaintiff’s anxiety (Doc. Nos. 172 at 18; 177-8 at 21;

177-10 at 31). Plaintiff alleges that the Klonopin did

not help his mental health issues, and he submitted

several requests to see medical staff regarding the

matter (Doc. 62 at 4).

On July 4, 2008, Plaintiff filed a request to speak

with a mental health professional regarding his “racing

thoughts” that were preventing him from sleeping

(Doc. 177-7 at 24). On July 8, 2008, Plaintiff was

evaluated by Patricia Tilley (“Tilley”), a licensed

mental health counselor at the Jail (Doc. Nos. 171 at

8-9; 177-8 at 16). Plaintiff requested medication to

help him sleep and indicated he had previously been

prescribed Trazadone (Doc. 177-8 a 16). The narrative

progress notes from this evaluation indicate that

Plaintiff was lucid, coherent, and did not appear to

be in distress or at risk for self-harm. Id. Tilley

recommended that Plaintiff be moved from the mental

42a

health pod. Id. Plaintiff made a request to speak with

a mental health nurse on July 10, 2008, and his

request was denied (Doc. 177-7 at 23).

Following the evaluation, Plaintiff was placed in the

general population of the Jail (Doc. Doc. 177-3 at 7).

Plaintiff alleges that after he was transferred, he

became the third occupant of a two-person cell and was

forced to sleep on the floor (Doc. 62 at 5-6). Plaintiff

contends that the conditions of the cell aggravated his

mental health issues. Id. Plaintiff states that he

submitted numerous requests to be moved back to the

mental health wing, but his requests were ignored. Id.

at 6.

On July 16, 2008, Plaintiff was moved to disciplinary confinement after being involved in a fight with

another inmate. Id. at 10. That same day Plaintiff filed

an inmate request asking to speak to a mental health

physician (Doc. 177-7 at 26). Plaintiff was evaluated

on July 21, 2008, and the mental health screening

notes reflect that Plaintiff’s mood was pleasant, he

denied a history of suicide, appeared lethargic, and

discussed his anxiety and inability to sleep (Doc. 1778 at 9-10). Plaintiff was provided with a coping skills

brochure. Id. at 10.

On July 24, 2008, Plaintiff attempted to commit

suicide by cutting his left wrist with a razor blade

(Doc. 177-3 at 15). Plaintiff states that due to his

untreated mental health issues and the crowded cell,

he was unable to sleep and thus, suffered a mental

breakdown (Doc. 62 at 6). Plaintiff was transferred to

the Wuesthoff Medical Center and then placed in the

acute mental health housing unit on direct watch, also

known as suicide watch (Doc. Nos. 177-1 at 26; 177-2

at 35; 177-10 at 22, 40).

43a

According to Plaintiff, he was placed in a onehundred square foot cell with seven other inmates that

contained no bed or mat (Doc. 62 at 6). Plaintiff states

that Jail personnel only allowed the inmates to shower

one time per week. Id. Plaintiff also contends that the

cell was not adequately cleaned, the toilet frequently

overflowed, and the floor was covered in urine, feces,

semen, and other bodily fluids. Id. at 7. Inmates were

not allowed to wear shoes and had no soap or eating

utensils. Id.

On July 28, 2008, Plaintiff filed a request to see a

mental health doctor, and mental health nurse Judith

Penny (“Penny”) evaluated him that same day (Doc.

Nos. 177-7 at 31, 177-8 at 1). Plaintiff told Penny that

he had racing thoughts, anxiety, and depression.

Penny recommended that Plaintiff be kept on suicide

watch. Id. On July 31, 2008, Jail staff observed

Plaintiff walk to the wall of his cell and bang his head

several times (Doc. 177-3 at 20). Plaintiff had an

abrasion on his forehead, the abrasion was treated,

and then he was placed back into the cell. Id. On

August 3, 2008, Plaintiff again began to bang his head

on the cell door. Id. at 22. Plaintiff was removed from

the cell and sent to the infirmary to receive stitches.

Id.

According to Plaintiff, the cells in the mental health

unit had inadequate ventilation and mold on the

ceiling (Doc. 62 at 7). Plaintiff stated that the air

conditioner was not working on August 3, 2008, and

Defendant John C. Wright (“Wright”), manager of the

mental health unit, refused to place fans near the cells

to help air flow. Id. Plaintiff states that these conditions led to a panic attack and mental break down,

which resulted in banging his head. Id. However,

several other inmates in the housing unit stated that

44a

Plaintiff intentionally hit his head so that he would be

transported to the hospital (Doc. 177-3 at 22). The

mental health unit narrative progress notes reflect

that Plaintiff informed the staff that he would

continue to harm himself (Doc. 177-7 at 18).

On August 10, 2008, an officer observed an inmate

kick and strike Plaintiff for no apparent reason (Doc.

177-3 at 24). The other inmate was removed from the

cell, and Plaintiff was examined for injuries. Id. Plaintiff

states that Defendants knowingly placed violent and

seriously mentally ill inmates in the mental health

cells, resulting in the assault (Doc. 62 at 7).

Plaintiff’s mental health was evaluated on August

13, 2008, and Penny recommended discontinuation of

direct watch and instead that Plaintiff be placed on a

fifteen minute watch (Doc. 177-8 at 4). Penny evaluated

Plaintiff again on August 18, 2008, and recommended

that Plaintiff be taken off fifteen minute watch status.

Id. at 3. Penny recommended that Plaintiff be moved

to the 503 pod of the mental health unit, which is a

less restrictive mental health unit with open-bay

bunks. (Doc. Nos. 171 at 15; 177-8 at 3). However, the

Jail records reflect that Plaintiff could not be moved to

the 503 pod because of a “red tag” indicating Plaintiff

was an escape risk. Id. at 2. Penny advised Plaintiff of

the situation, and the record notes that Plaintiff

“accepted” the information “well.” Id.

On September 3, 2008, Plaintiff threatened to hurt

himself after he felt that his needs were not being

met (Doc. 177-7 at 9). As a result, Plaintiff was placed

on direct watch. Id. Jail staff evaluated Plaintiff on

September 8, 2008, discontinued direct watch, and

placed Plaintiff on fifteen minute watch. Id. at 2-3. The

“red tag” was removed from Plaintiff’s status on

September 22, 2008 (Doc. 177-2 at 8). Plaintiff was

45a

moved into the 503 pod on September 25, 2008 (Doc.

177-1 at 21).

Plaintiff was transported to the Orange County Jail

on September 26, 2008. Id. Upon his return on

November 6, 2008, he was again placed into the acute

mental health housing unit on direct watch (Doc. 1772 at 8). During Plaintiff’s mental health intake screening, he stated that “when he is housed where he does

not want to be he does cut himself or beats head on

wall” (Doc. 177-6 at 28). Dr. Perez evaluated Plaintiff

on November 13, 2008, and Plaintiff told him that

while at the Orange County Jail he cut himself in

order to get his needs met. Id. at 29. Dr. Perez noted

that Plaintiff was manipulative, litigious, and would

do anything necessary for secondary gain. Id. Dr.

Perez also prescribed Doxygen and Vistaril. Id.

Plaintiff was again evaluated by Dr. Perez on

December 16, 2008, and Dr. Perez opined that Plaintiff

acted in a manipulative behavior, “doing whatever it

takes for secondary gain” and exaggerating his symptoms (Doc. Nos. 177-6 at 16; 177-13 at 2-3). Dr. Perez

continued Plaintiff on the same medication (Doc. 17713 at 3). On January 5, 2009, Plaintiff was evaluated

by Tilley, who stated that Plaintiff was lucid, coherent,

and not in any acute distress (Doc. 177-13 at 29). Tilley

again saw Plaintiff on January 26, 2009, and Plaintiff

indicated that he was having trouble sleeping. Id.

at 28. Tilley stated that she could not change his

medication until he was evaluated by Dr. Perez. Id.

Plaintiff was evaluated by mental health staff on

February 13, 2009, February 27, 2009, March 12,

2009, March 26, 2009, July 21, 2009, August 12, 2009,

September 15, 2009, October 2, 2009, October 13,

2009, January 5, 2010, April 11, 2010, and April 12,

2010 (Doc. Nos. 177-12 at 38-39; 177-13 at 4-8, 12-19,

46a

23-27). On each occasion, the medical providers stated

that Plaintiff did not appear to be in any acute

distress, although minor anxiety was noted on occasion.

Id. Dr. Perez increased Plaintiff’s dosage of his medications on March 12, 2009 and October 13, 2009 (Doc.

177-13 at 4, 6, 24-25). On April 13, 2010, Plaintiff

refused treatment because he was “going back to

DOC” (Doc. 177-12 at 37). Plaintiff was transported to

the Department of Corrections on April 15, 2010 (Doc.

177-1 at 11, 22).

Plaintiff returned to the Jail in April 2013, and he

was placed in the acute mental health unit due to his

prior mental health history (Doc. 177-1 at 7). The

mental health unit completed an initial assessment

and suicide risk assessment on April 15, 2013 (Doc.

177-23 at 32). Jail staff explained to Plaintiff the

housing protocols and procedures (Doc. 177-24 at 11).

Plaintiff was evaluated on April 17, 2013, and April

19, 2013, and Jail staff noted that Plaintiff was in good

spirits and did not exhibit any behaviors suggesting

the potential for self-harm. Id. at 12-15. Plaintiff

contends that despite his greatly improved mental

health, he remained in the acute housing unit during

this time (Doc. 62 at 10). Plaintiff returned to the

Department of Corrections on April 28, 2013 (Doc. 1771 at 9).

Plaintiff alleges that Defendant Wayne Ivey, Sheriff

of the Jail (“Sheriff Ivey”), in his official capacity,

violated his Eighth and Fourteenth Amendment

rights by establishing policies or customs that caused

the staff of the Jail to exhibit deliberate indifference

to Plaintiff’s serious mental health needs and the

inhumane conditions of confinement (Doc. 62 at 11).

Plaintiff also contends that the Sheriff had final

policymaking and discretionary authority over the Jail

47a

and used his authority to allow the inhumane conditions of confinement and inadequate treatment of

mental health needs to flourish. Id. at 12.

Plaintiff sues Susan Jeter (“Jeter”) in her individual

capacity for violating his Eighth and Fourteenth Amendment rights by acting with deliberate indifference to

his serious mental health needs and the inhumane

conditions of confinement. Id. at 13-14. Plaintiff alleges

Defendant Jeter was personally involved or aware

of these violations and inhumane conditions due to

her position as commander and overseer of the Jail.

Id. at 14.

Plaintiff alleges that Wright violated his Eighth

and Fourteenth Amendment rights because he was

deliberately indifferent to the inhumane conditions of

confinement. Id. at 16. Plaintiff contends that Wright

was personally involved in the violations as direct

overseer of the mental health unit. Id. Plaintiff asserts

that Wright was aware of and perpetuated the deplorable conditions. Id.

Finally, Plaintiff asserts that Tilley violated his

Eighth and Fourteenth Amendment rights when she

was deliberately indifferent to his serious mental

health needs. Id. at 17. Plaintiff states that Tilley was

personally involved in the violations because she failed

to adequately address Plaintiff’s mental health issues

and “spitefully” moved him to the general population

of the Jail when she “knew his mental health would be

negatively impacted.” Id. at 18. Plaintiff asserts that

Tilley’s actions caused his suicide attempt. Id.

II. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure

provides that summary judgment shall be granted “if

the movant shows that there is no genuine dispute as

48a

to any material fact and the movant is entitled to

judgment as a matter of law.” See also Jean-Baptiste

v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010). The

record to be considered on a motion for summary judgment may include “depositions, documents, electronically

stored information, affidavits, or declarations, stipulations (including those made for the purposes of the

motion only), admissions, interrogatory answers, or

other materials. Fed. R. Civ. P. 56(c)(1)(A).

The nonmoving party, so long as that party has had

an ample opportunity to conduct discovery, must come

forward with affirmative evidence to support its claim.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986). “A mere ‘scintilla’ of evidence supporting the

opposing party’s position will not suffice; there must

be enough of a showing that the jury could reasonably

find for that party.” Walker v. Darby, 911 F.2d 1573,

1577 (11th Cir. 1990). “An affidavit or declaration used

to support or oppose a motion must be made on

personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters

stated.” Fed. R. Civ. P. 56(c)(4). If, after the movant

makes its showing, the nonmoving party brings forth

evidence in support of its position on an issue for which

it bears the burden of proof at trial that “is merely

colorable, or is not significantly probative, summary

judgment may be granted.” Anderson, 477 U.S. at 24950 (citations omitted).

III. DISCUSSION

A. Exhaustion of Administrative Remedies

Pursuant to 42 U.S.C. § 1997e(a), “[n]o action shall

be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by

49a

a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies

as are available are exhausted.” Id. “[A] prisoner must

exhaust all prescribed administrative remedies available

to him . . . before filing a lawsuit to seek judicial

redress.” Garcia v. Glover, 197 F. App’x 866, 868 (11th

Cir. 2006).

Defendants argue that Plaintiff failed to exhaust his

administrative remedies with regard to his Eighth

Amendment conditions of confinement claims (Doc.

169 at 25). In support of this contention, Defendants

note that Plaintiff was aware of the grievance procedure because he submitted grievances regarding his

medical care and other issues during this time period.

Id.; see Doc. 177-2 at 24 (listing grievances filed

between July 4, 2008 and October 12, 2009). Plaintiff

states that he grieved the conditions of confinement in

the mental health housing unit but never received

responses to his grievances (Doc. Nos. 170 at 43, 75;

181 at 19).

The Jail’s grievance procedure provides that an

inmate should address issues related to conditions of

confinement with the officer in charge of the housing

unit (Doc. 177-26 at 7). If the issue cannot be resolved,

the officer should give the inmate a grievance form. Id.

After filling out the grievance form, it will be

forwarded to the classification department for “review

and assignment if determined to be a grievable event.

Once answered, the grievance will be returned to the

inmate.” Id. If the response received is not satisfactory, an inmate may appeal. Id.

Plaintiff states that he filed at least two grievances

regarding the conditions of his confinement at the Jail

(Doc. 170 at 75). However, Jail personnel never gave

him a copy of the grievances nor did they respond to

50a

the grievances. Id. at 75-76. Federal courts have held

that the failure to respond to a grievance renders the

administrative remedy unavailable to a prisoner. See

Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016); Small

v. Camden County, 728 F.3d 265, 273-74 (3d Cir.

2013); Boyd v. Corrs. Corp. of Am., 380 F.3d 989, 996

(6th Cir. 2004); Jernigan v. Stuchell, 304 F.3d 1030,

1032 (10th Cir. 2002). Therefore, the Court will decline

to grant summary judgment on this basis.

B. Mental Health Claim

Plaintiff contends that his Eighth and Fourteenth

Amendment rights were violated when Jail staff failed

to properly treat and give him medication for his

anxiety, panic attacks, insomnia, manic depression,

claustrophobia, and suicidal and self-harming tendencies (Doc. 62 at 11, 15). Defendants Sherriff Ivey,

Jeter, and Tilley allege that they are entitled to

qualified immunity on this claim.

“The doctrine of qualified immunity protects

government 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, 232 (2009) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)) (quotation

omitted). To receive qualified immunity a defendant

must first prove that he or she was acting within the

scope of his or her discretionary authority. See

Vineyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.

2002).2

Defendants were acting within their discretionary authority

during the relevant time period as employees of the Jail.

51a

Once a defendant shows that he or she was acting

within his or her discretionary authority, the burden

shifts to the plaintiff to demonstrate that qualified

immunity is not appropriate. Lumley v. City of Dade

City, 327 F.3d 1186, 1194 (11th Cir. 2003). The

Supreme Court has set forth a two-part test for the

qualified immunity analysis. First, a court must determine “whether [the] plaintiff’s allegations, if true,

establish a constitutional violation.” Hope v. Pelzer,

536 U.S. 730, 736 (2002). If Plaintiff’s version of the

facts set forth the violation of a constitutional right,

the next step is to ask whether the right was clearly

established at the time of the alleged conduct. Saucier

v. Katz, 533 U.S. 194, 201 (2001). It is within a court’s

discretion to decide which prong of the qualified

immunity analysis to address first. See Pearson, 555

U.S. at 236.

To establish liability under § 1983 for inadequate

mental health treatment, a plaintiff must show that

the failure to provide him with mental health care

amounted to cruel and unusual punishment under

the Eighth Amendment of the United States

Constitution.3 A plaintiff must demonstrate that his

inadequate care arose from a deliberate indifference to

serious medical needs. See Estelle v. Gamble, 429 U.S.

97, 104-05 (1976). To prevail on summary judgment, a

plaintiff must raise a genuine issue of material fact as

Because Plaintiff was a pre-trial detainee when his alleged

lack of medical care occurred, his claim must be analyzed under

the Fourteenth Amendment rather than the Eighth Amendment.

See Bell v. Wolfish, 441 U.S. 520, 535 (1979). However, “in regard

to providing pretrial detainees with such basic necessities as food,

living space, and medical care the minimum standard allowed by

the due process clause is the same as that allowed by the [E]ighth

[A]mendment for convicted persons.” Hamm v. DeKalb County,

774 F.2d 1567, 1574 (11th Cir. 1985).

52a

to whether (1) an objectively serious medical need

existed and (2) whether the defendants acted with

deliberate indifference to that need. Jacoby v. Baldwin

Cty., 596 F. App'x 757, 763–64 (11th Cir. 2014). A

serious medical need is “one that is diagnosed by a

physician as requiring treatment or one that is so

obvious that a lay person would recognize the need for

medical treatment.” Burnette v. Taylor, 533 F.3d 1325,

1330 (11th Cir. 2008) (citing Farrow v. West, 320 F.3d

1235, 1243 (11th Cir. 2003)). To establish the requisite

deliberate indifference, a prisoner must prove that a

defendant had “(1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct

that is more than [gross] negligence.” Burnette, 533

F.3d at 1330 (quotation omitted); see also Farmer v.

Brennan, 511 U.S. 825, 834-835 (1994).

1. Defendant Tilley

Plaintiff has not demonstrated that Defendant

Tilley was deliberately indifferent to his serious

medical needs. The Jail records reflect that Dr. Perez

prescribed Klonopin to treat Plaintiff’s anxiety and

difficulty sleeping (Doc. 177-8 at 21, 26). Dr. Perez

opined that this course of treatment was medically

appropriate because in his medical opinion, Plaintiff’s

panic attacks seemed to be exaggerated and he believed

Plaintiff was acting out or trying to manipulate the

system in order to receive additional medication (Doc.

172 at 24, 34-38). Additionally, Plaintiff was treated

by mental health staff on July 8, 2008 and July 21,

2008 (Doc. 177-8 at 10-17). Defendant Tilley noted

that Plaintiff did not appear to be in distress nor did

he have suicidal thoughts (Doc. Nos. 177-7 at 22-23,

26; 177-8 at 10-16). Although Plaintiff attempted to

commit suicide on July 24, 2008, there is no indication

that this was due to Defendant Tilley’s failure to

53a

properly treat Plaintiff. Contrary to Plaintiff’s assertions,

Defendant Tilley was responsive to Plaintiff’s complaints.

Plaintiff has not shown that Defendant Tilley had a

subjective knowledge of a risk of serious harm and

ignored that risk by conduct that amounts to more

than mere negligence. See Jacoby v. Baldwin Cty., 596

F. App’x 757, 763-64 (11th Cir. 2014) (affirming the

district court’s order granting summary judgment on

deliberate indifference to mental health needs where

the doctor and nurse were aware of the plaintiff’s

history of mental illness but were unaware of the

plaintiff’s first instance of self-harm and the plaintiff

did not present symptoms of mental illness and had

indicated that he did not have present suicidal

thoughts); Pooler v. Nassau University Medical Center,

848 F. Supp. 2d 332 (E.D. N.Y. 2012) (denying claim of

deliberate indifference to mental health and

concluding the plaintiff was offered reasonable care

where the plaintiff had been prescribed mental health

medications, had a history of substance abuse and of

being manipulative in order to receive medication, and

was assessed by a medical provider, who opined the

plaintiff was not depressed and needed counseling to

help with coping skills).

Furthermore, Plaintiff has not provided any evidence refuting his medical records or Dr. Perez’s

deposition statements. See Whitehead v. Burnside, 403

F. App’x 401, 404 (11th Cir. 2010). Plaintiff merely

disputes the appropriateness of the medication and

treatment he received. However, federal courts have

concluded that when an inmate receives adequate

medical care but disagrees with the mode or amount

of treatment, he cannot establish deliberate indifference. Chatham v. Adcock, 334 F. App’x 281 (11th Cir.

2009) (citing Harris v. Thigpen, 941 F.2d 1495, 1507

54a

(11th Cir. 1991)). Therefore, Defendant Tilley is

entitled to qualified immunity with regard to this

portion of Plaintiff’s claim because Plaintiff has not

demonstrated his constitutional rights were violated.

See Pearson, 555 U.S. 223 at 232; Hope, 536 U.S. at

736.

Plaintiff also alleges that Tilley and other Jail staff

unnecessarily delayed his release from the acute

mental health unit, which exacerbated his mental

health issues (Doc. 181 at 7). Plaintiff contends that

the conditions of this unit impeded his ability to

rebound, and other inmates had the same experience.

Id.

Tilley stated during her deposition that Plaintiff

could not be moved out of the acute mental health

ward because he had a history of escape (Doc. 171 at

43-44). If Plaintiff had been released from the acute

care ward, classification procedures dictated that he

would have been placed in a maximum security cell.

Id. at 44. Tilley stated that she tried to move Plaintiff

but classification prevented it from happening. Id. at

44-45. Plaintiff has provided the Court with no

evidence that Tilley intentionally kept Plaintiff in the

mental health unit. Furthermore, to the extent that

Plaintiff complains of being placed in the mental

health unit in 2013, his claim fails for these same

reasons. See id. at 64-65 (Tilley stating that inmates

who are in the mental health unit when they leave the

Jail are required to be initially placed in the mental

health unit upon their return).

Moreover, although not alleged in his complaint,

Plaintiff now states that Tilley’s actions of keeping

him in the in the mental health unit further caused his

mental deterioration. Plaintiff’s argument that the

mental health unit contributed to his alleged decline

55a

in his mental health is at odds with his assertion that

being placed in general population caused his attempt

at suicide and mental deterioration. Defendant Tilley

is entitled to qualified immunity on this claim because

Plaintiff ha

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