INMATE LITIGATION

By:  Harvey S. Gray
Gray, Rust, St. Amand, Moffett & Brieske, LLP

I.       CONSTITUTIONAL BASIS FOR INMATE CLAIMS      

A.      Overview

At common law, a prisoner had no right to bring a lawsuit.  H. B. Eisenberg, Rethinking Prisoner's Civil Rights Cases in the Provision of Counsel, 17 S. Ill. U.L.J. 417, 422 (1993) (“[A]t common law a prisoner convicted of a felony could not bring suit”).  Prisoners were consider “slaves of the state,” and confinement was deemed a moment of “civil death.”  W.L. Selke, Prisons in Crisis 28 (1993) (“[U]pon conviction and sentencing to a term of imprisonment, the inmate lost all rights and was under the absolute control of correctional authorities.”)  The social atmosphere of the 1960s spurred a new judicial philosophy recognizing prisoner's rights and more receptivity to lawsuits filed by prisoners.

In 1976, the United States Supreme Court decided Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976) holding that “[t]he Constitution is violated when prison officials intentionally deny or delay access to medical care, where they provide grossly inadequate medical treatment, or where they intentionally interfere with the treatment prescribed by a physician.”  Id. at 104-05  While Estelle was not the first case to suggest that inmates could pursue constitutional claims relating to denials or delays of medical treatment, it is clearly the most oft-cited authority for that proposition.  Almost twenty years later, in Farmer v. Brennan, 511 U.S. 825, 14 S.Ct. 1970 (1994), the Supreme Court expanded its interpretation of the Eighth Amendment to address the circumstances under which an inmate's exposure to a serious risk of harm could be used to support a civil claim for damages under § 1983.  Virtually every inmate complaint to this day is analyzed under the principles established in Estelle and Farmer and, therefore, discussion of both cases is warranted.

B.      Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976)

Estelle involved a claim by an inmate that he had not received appropriate medical treatment.  The trial court dismissed the complaint for failure to state a claim despite the mandate of the Eighth Amendment that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Thus, the first issue to be addressed was the intent of the cruel and unusual punishments clause and whether it proscribed conduct amounting to an alleged failure by prison officials to provide necessary medical treatment for an inmate.

The Court's discussion on this issue is as follows:

The history of the constitutional prohibition of "cruel and unusual punishments" has been recounted at length in prior opinions of the Court    and need not be repeated here. See, e.  g., Gregg v. Georgia , 428 U.S. 153, 169-173, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.; See also Granucci, Nor Cruel and Unusual Punishment Inflicted:  The Original Meaning , 57 Calif.L.Rev. 839 (   1969). It suffices to note that the primary concern of the drafters was to proscribe" torture(s)" and other "barbar(ous)" methods of punishment. Id., at 842.   Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman    technique of punishment. See Wilkerson v. Utah , 99 U.S. 130, 136, (1879) ("(I)t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ."); In re Kemmler , 136 U.S. 436, 447, 10 S.Ct. 930, 933. (1890) ("Punishments are cruel when they involve torture or a lingering death . . .").

Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia , supra, at 171, 96 S.Ct. at 2924 (joint opinion); Trop v. Dulles, 356 U.S. 86,   100-101, 78 S.Ct. 590, 597, 598 (1958); Weems v. United States , 217 U.S. 349, 373, 30 S.Ct. 544, 551 (1910).  The Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ," Jackson v. Bishop, 404 F.2d 571, 579 (9^th Cir. 1968), against which we  must evaluate penal measures.  Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v.    Dulles, supra, at 101, 78 S.Ct. at 598; see also Gregg v. Georgia, supra , at 172-173, 96 S.Ct. at 2925 (joint opinion); Weems v. United States, supra , 217 U.S. at 378, 30 S.Ct. at 553, or which "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, supra , at 173, 96 S.Ct. at 2925 (joint opinion); see also Louisiana ex rel.  Francis v. Resweber , 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947); Wilkerson v. Utah, supra, 99 U.S. at 136.    

These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," In re Kemmler, supra , the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. Cf. Gregg v. Georgia, supra , at 173, 96 S.Ct. at 2924-25 (joint opinion). The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that "(i)t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."

We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," Gregg v. Georgia, supra , at 173, 96 S.Ct. at 2925 (joint opinion), proscribed   by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.   Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983. 

The Estelle Court cautioned against taking these general principles too far:

This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain. In Louisiana ex rel.  Francis v. Resweber , 329 U.S. 459, 67 S.Ct. 374 (1947), for example, the Court concluded that it was not unconstitutional to force a prisoner to undergo a second effort to electrocute him after a mechanical malfunction had thwarted the first attempt.  Writing for the plurality, Mr. Justice Reed reasoned that the second execution would not violate the Eighth Amendment because the first attempt was an "unforeseeable accident." Id., at 464, 67 S.Ct. 376. Mr. Justice Frankfurter's concurrence, based solely on the Due Process Clause of the Fourteenth  Amendment, concluded that since the first attempt had failed because of "an innocent misadventure," id., at 470, 67 S.Ct. at 379, the second would not be " 'repugnant to the conscience of mankind,' " id., at 471, 67 S.Ct. at 380,  quoting Palko v. Connecticut, 302 U.S. 319, 323, 58 S.Ct. 149, 150 (1937).

Similarly, in the medical context, an inadvertent failure to provide adequate     medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a  constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.  It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.

C.      Farmer v. Brennan, 511 U.S. 825, 14 S.Ct. 1970 (1994)

Farmer involved a suit by a transsexual who had been incarcerated with other males in the federal prison system, sometimes in the general prison population but more often in segregation.  The petitioner claimed to have been beaten and raped by another inmate after being transferred by federal prison officials[1] from a correctional institute to a penitentiary and placed within the general prison population.  The petitioner sought damages and an injunction barring future confinement in any penitentiary and alleged that the respondents had acted with “deliberate indifference” to his safety in violation of his Eighth Amendment rights.  It was alleged that the prison officials knew that the penitentiary had a violent environment and a history of inmate assaults and that petitioner would be particularly vulnerable to a sexual attack.

The district court granted summary judgment to the respondents concluding that any failure to prevent inmate assaults would violate the Eighth Amendment only if prison officials were “reckless in a criminal sense” (i.e., had “actual knowledge” of the potential danger) and that respondents lacked such knowledge because petitioner never expressed any safety concerns to them.  The Court of Appeals affirmed and the U.S. Supreme Court granted a petition for a writ of certiorari to review proceedings below.

In reversing the action by the trial court, Farmer established a number of black letter law principles which generally survive to this day:

A.      Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement.  They must insure that inmates receive adequate food, clothing, shelter, and medical care and must protect prisoners from violence at the hands of other prisoners.  However, a constitutional violation occurs only where the deprivation alleged is objectively “sufficiently serious” and the prison official acts with “deliberate indifference” to the inmate's health or safety. 

D.      This subjective test does not permit liability to be premised on obvious or constructive notice.  However, this does not mean that prison officials are free to ignore obvious dangers to inmates.  Whether an official had the requisite knowledge is a question of fact subject to demonstration in the usual ways,  and a fact finder may conclude that the official knew of the substantial risk from the very fact that it was obvious.  An official may not escape liability by showing that he knew of the risk but did not think that the complainant was especially likely to be assaulted.  It does not matter whether the risk came from a particular source or whether the prisoner faced the risk for reasons personal to him or because all prisoners in his situation faced the risk.  Prison officials may not be held liable if they prove they were unaware of even an obvious risk or if they responded reasonably to a known risk, even if the harm ultimately was not averted.

II.      PROCEDURAL ISSUES

B.      Pretrial Detainee v. Convicted Prisoner

A.      Introduction

The four leading types of correctional-conditions litigation in federal court are (1) inadequate medical care (including jail suicide) (2) physical assaults (by correctional staff or by other inmates), (3) alleged due process violations relating to disciplinary sanctions, and (4) general living-conditions claims.  Many of the claims asserted would have no foundation in the private sector.  It is the relationship of the state to the inmate which results in such a distinction.

As noted by the U.S. Supreme Court in a much quoted passage from Preiser v. Rodriguez:

Eating, sleeping, dressing, washing, working and playing are all done under the watchful eye of the state, and so the possibilities for litigation under the Fourteenth Amendment are boundless.  What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker, becomes, for the prisoner, a dispute with the state.  That is, first, more types of injuries are federally actionable for inmates than for people whose relationship with the state are less all-embracing.  And second, in any area of law in which inmates retain legal rights similar to those of non-inmates, those rights tend to run not against many agencies, but against one litigating opponent – the prisoner jail that holds them, which is bound to feel unusually burdened by the result in litigation.

C.        PHYSICAL ASSAULTS

A variety of civil actions brought under 42 U.S.C. § 1983 are predicated upon a claimed right to governmental protection from harm.  Litigants, whether those in prison or those who operate in the general population, often assert a right to be free from bodily harm, violence, and the use of excessive force at the hands of governmental officials and others.  While there is no specific constitutional provision identifying a generalized right to safety or to governmental protection from harm, § 1983 often supplies a remedy for “official violence” (i.e., violence inflicted by governmental actors).  The Fourth Amendment's prohibition on unreasonable searches and seizures, the Eighth Amendment's prohibition on cruel and unusual punishments and the Due Process clause of the Fourteenth Amendment provide a constitutional foundation to recover damages for official violence in differing contexts.  The Fourth Amendment generally covers excessive force in the context of arrests; the Eighth Amendment generally addresses violence in the prison context; and the Due Process clause might be used in other contexts.

Litigants sometimes assert a right to be protected by government from what would otherwise be termed “private violence,” (i.e., violence inflicted by purely private actors as opposed to government officials).  For example, a prisoner injured by another prisoner, a private citizen assaulted by a parolee with known violent tendencies, or a public high school student harassed at school might all seek to hold state or local government officials accountable for a failure to protect them from injury.  Prisoners and those in the involuntary custody of the state have generally been able to claim minimal guarantees of safety and care but largely because they are not able to fend for themselves while incarcerated.  For those on the outside, the Supreme Court has been reluctant to identify any constitutional guarantee of minimal levels of safety from private harm or private violence, even in settings in which the government is actively involved. 

In non-custodial settings, individuals generally have no right to sue government officials for failing to protect them from private violence.  DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 109 S.Ct. 998 (1989).  DeShaney involved the severe beating of a child by his father.  Although social workers had been put on notice of likely past abuse, they did not take action to remove the child from the home until after he had been beaten so badly by his father that he suffered permanent brain damage and had lapsed into a coma.  The DeShaney Court concluded that “nothing in the language of the due process clause itself requires the state to protect life, liberty, and property of its citizens against invasion by private actors.”  Instead, the court viewed the Constitution's commands as largely consisting of “negative” limits on state action [3] and “not as a guarantee of certain minimal levels of safety and security.”  Because the purpose of the due process clause was to protect individuals from abuses of state and local officials, not from other private persons, the clause could not be invoked to remedy violence inflicted upon a child by his father.

Even prior to DeShaney, the Supreme Court had reached a similar decision involving violence by a parolee.  In Martinez v. California, 444 U.S. 277, 100 S. Ct. 553 (1980), a parolee had killed his victim after being released by the state's parole board.  The victim's relatives brought a § 1983 action against government officials claiming that the deprivation of the victim's life violated the due process clause because the parole board had been entirely derelict in its duty to adequately screen and supervise the parolee and in its failure to warn the public of his release.  The Supreme Court concluded that the relationship between the state's actions (i.e., the decision of the parole board) and the killing of the plaintiff's decedent was “too remote” to support a § 1983 violation.

The prison context offers a glaring exception to DeShaney in light of the prisoner's involuntary status as a custodian of the state.  As noted, even where the inmate is the subject of purely private violence (i.e., harm imposed by a fellow inmate), the inmate may be able to establish a § 1983 claim for damages based upon a failure to protect him from injury even where a purely private citizen could never successfully pursue such relief based on nearly identical fact patterns. Thus, where prison officials fail to take reasonable protective measures in response to a known risk of assault on an inmate, they can violate the inmate's constitutional rights.  Farmer v. Brennan, supra. See also, March v. Butler County , 268 F.3d 1014 (11th Cir. 2001) (reasonableness of prison official's response is to be evaluated on an objective, not subjective, basis).

Prison officials have a duty to provide reasonably safe conditions of confinement.  Youngberg v. Romero, 457 US 307, 102 S.Ct. 2452 (1982).  Where there is a substantial risk of imminent harm to an inmate and jail officials are deliberately indifferent to such risk, liability arises under '  1983.  Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir. 1995).  Whether a public official has requisite knowledge of the seriousness of the pre-trial detainee's medical needs or imminent risk of harm is a question of fact subject to demonstration in the usual ways, including inferences from circumstantial evidence.  Farmer v. Brennan, 511 U.S. 825, 840, 114 S.Ct. 1970, 1981 (1994) (circumstantial evidence sufficient to establish prison officials' knowledge of substantial risk of harm to inmate).

D.      Suicide

One of the common claims asserted against local detention facilities arises when an inmate commits suicide.  Once an official learns of a suicide risk, reasonable measures must be taken to prevent the suicide from occurring.  Jacobs v. West Feliciana Sheriff's Department, 228 F.3d 388, 295-98 (5th Cir. 2000)  (sheriff and senior deputy failed to respond reasonably by placing clearly suicidal detainee in cell with tie off points, blanket, towel and blind spot); Greason v.Kemp, 891 F.2d 829, 837-39 (11th Cir. 1990) (jury issue presented whether doctor acted with deliberate indifference by failing to insure that competent officials took steps to protect suicidal inmate).  See also Sandil v. McCauchtry, 266 F.3d 724, 739 (7th Cir., 2001) (failure to check on suicidal inmate for five hours “could easily be considered  grievous enough  to rise to the level of deliberate indifference) 

A section 1983 claim based on suicide of a pretrial detainee is analyzed under the Due Process clause of the Fourteenth Amendment.  Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir.1994). "[I]n a prisoner suicide case, to prevail under section 1983 for violation of substantive rights, under ... the ... Fourteenth Amendment, the plaintiff must show that the jail official displayed 'deliberate indifference' to the prisoner's taking of his own life." Edwards v. Gilbert, 867 F.2d 1271, 1274-75 (11th Cir.1989). The deliberate indifference standard "requires a strong likelihood rather than a mere possibility that the self-infliction of harm will occur." Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990) (emphasis added). "[T]he mere opportunity for suicide, without more, is clearly insufficient to impose liability on those charged with the care of prisoners." Tittle v. Jefferson County Comm'n, 10 F.3d 1535, 1540 (11th Cir.1994).

To establish a defendant's deliberate indifference in a suicide case it has to be shown that the defendant had “(1) subjective knowledge of a risk of serious harm; [and] (2) disregard [ed] . . . that risk; (3) by conduct that is more than mere negligence.”  McElligott v. Foley, 182 F.3d 1248, 1255 (11^th Cir. 1999)  The most recent pronouncement of civil liability under § 1983 from the 11^th Circuit in an inmate suicide case involving a pre-trial detainee is Cagle v. Sutherland, 334 F.3d 1980 (11^th Cir. 2003).  Cagle involved a DUI arrest by a state trooper following which the arrestee (Butler) was taken to the Winston County Jail in Alabama.  Mr. Butler told the state trooper that if he had to stay in jail all night he would kill himself.  Jailer Cole was on duty when Butler ultimately hung himself in his jail cell. 

Cole claimed that he was unaware of any suicide threats by Butler but thought he was supposed to watch Butler simply because he was intoxicated.  Another officer at the jail stated that he had told Cole about the threats.  The district court noted that Cole had been instructed to check on Butler frequently, that he was aware Butler had been placed in Cell 1 where he could be observed by a video camera, that potentially dangerous items had been removed from the cell, and that Butler's belt and shoelaces had been taken away.  Accordingly, the 11^th Circuit agreed with the district court's conclusion that it was reasonable to infer that Cole was aware of the suicide risk.  At 9:00 p.m., Cole performed a cell check and found nothing out of the ordinary.  By 9:30, Cole was the only county employee remaining at the jail.  At 10:46 p.m., Cole performed another cell check and found that Butler had used the elastic from his underwear to hang himself.  Thus, there was a forty-six minute period during which Butler was not looked in upon.

The representatives of Mr. Butler's estate filed suit in federal court against Winston County and other county officials.  Motions for summary judgment were granted to all defendants except Winston County, the Sheriff, Deputy Sheriff Sutherland and Jailer Cole.  The County, Sutherland, and Cole appealed.  Because the 11^th Circuit determined that none of the defendants acted with “deliberate indifference,” the case was remanded to the trial court with instructions to grant summary judgment to the appellants.

With regard to Winston County, the 11^th Circuit noted that to subject a county to liability under § 1983, a plaintiff must demonstrate that the constitutional violation occurred as the result of a county policy.  Moreover, a plaintiff must show “that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.”  Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1388 (1997).  After dispensing  with an argument by the plaintiffs that deliberate indifference was established by failing to provide funding for an additional night-time jailer, the Court noted that there was no evidence any prisoner had ever before committed suicide in the Winston County Jail and, therefore, there was nothing in the record from which to conclude that prisoners in the Winston County Jail were substantially likely to commit suicide. 

Plaintiffs alleged a failure to train Jailer Cole and the other employees at the jail regarding suicide prevention sufficient to oppose the summary judgment motion.  Based upon an analysis of qualified immunity, it was determined that there was no evidence which would have indicated to county policymakers that there was a strong likelihood of prisoner suicides at the Winston County Jail and, hence, no evidence that the Sheriff acted with deliberate indifference by failing to train Cole and others. 

The analysis of Jailer Cole's liability in Cagle ultimately resulted in the conclusion that no evidence existed to establish that Cole acted with deliberate indifference sufficient to violate Butler's constitutional rights even assuming Cole was aware of the threat.  Of importance was the fact that  Butler's belt, shoelaces, and the contents of his pockets had been confiscated, that the jail cell had been stripped of implements which might assist in suicide, and that it was unforeseeable Butler would hang himself with elastic from his underwear.  These facts demonstrated a lack of deliberate indifference on the part of jail personnel.  In fact, the Court noted that their actions decreased the likelihood that Butler would commit suicide.

IV.       CONCLUSION

It is clear that inmates, whether pre-trial detainees or convicted felons, are entitled to certain protections under the federal constitution which are not available to private citizens. The custodial nature of the relationship establishes affirmative duties on government officials with regard to medical care, protection from harm and conditions of confinement.  While PLRA imposes certain limitations on those duties in some contexts, it does not appear that PLRA has reduced the number of inmate claims that continue to clog the federal courts and, for the foreseeable future at least, it would appear that many inmate lawsuits will continue to be pursued by inmates who have little else to occupy their time.