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Federal Legal Standards for Prison Medical Care

Federal Legal Standards For Prison Medical Care

by Dan Manville

The State is required to provide adequate medical care to those it confines.1 In this time of shrinking budgets, many prison systems have turned to contracting with private health care providers to meet their legal obligations. Some states have turned most of their health care services over to private companies such as Correctional Medical Services, Inc. (CMS), even though CMS's record for providing health care is dismal.2 In Michigan, since CMS has taken control of providing medical care to Michigan's prisoners, the complaints that the author and others have received pertaining to medical care have increased significantly. This article discusses the federal legal standard for providing medical care, what level of care will and will not violate this Federal standard, how private companies or their staff may be liable, and the impact the Prison Litigation Reform Act (PLRA) has on that Federal standard.

A. Eighth Amendment - Deliberate Indifference Standard

Under the Eighth Amendment to the United States Constitution3, prison officials are required to provide prisoners with "reasonably adequate" medical care.4 Courts have defined adequate medical care as "services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards,"5 and at "a level of health services reasonably designed to meet routine and emergency medical, dental and psychological or psychiatric care."6

In 1976, the United States Supreme Court established the standard used by lower federal courts to review claims by prisoners of denial of medical care. In Estelle v. Gamble, the Supreme Court stated: "[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain,' 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."7

The Estelle Court went on to state that mere negligence in providing of medical care does not violate the Eighth Amendment: "[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."8

Recently, lower federal courts have made it clear that gross negligence in providing medical care also does not violate the Eighth Amendment.9 Courts have held that repeated acts of negligence by staff do not constitute deliberate indifference.10

There are two components to establishing violations of the Eighth Amendment's "cruel and usual punishment" provision as it relates to medical care: (1) the "objective component," i.e., did the prisoner have a serious medical need, and (2) the "subjective component,"or better known as the state of mind of the officials who were responsible for the medical care.11

1. Objective Component - Serious Medical Need

To violate the Eighth Amendment, deprivations of medical care must be serious enough to amount to the "wanton and unnecessary infliction of pain."12 Prison officials need not inflict an actual physical injury13 or cause lasting or permanent injury to be liable for violation of the Eighth Amendment.14 Often, the length of time a prisoner is subjected to pain in a medical case will play a significant part in determining whether the denial of care was deliberate indifference.15

A medical need is serious if it "has been diagnosed by a physician mandating treatment or ... is so obvious that even a lay person would easily recognize the necessity for a doctor's attention."16 A "serious" medical need exists if the failure to treat that condition resulted in further significant injury or chronic and persistent pain for the prisoner.17 A medical condition may also be serious if it "significantly affects an individual's daily activities."18

In Parrish v. Johnson, the Sixth Circuit held that no physical injury is required for a prisoner to recover on an Eighth Amendment claim of deliberate indifference to medical needs.19 The court stated that extreme conduct by prison staff which causes severe emotional distress is sufficient to state an Eighth Amendment claim.20 In Borretti v. Wiscomb, the Sixth Circuit held that an Eighth Amendment claim was stated when a prisoner suffered pain as a result of a disruption in the prescribed plan of treatment, even though the wound eventually healed.21

2. Subjective Component - State of Mind of Prison Staff

A prison staff member is "deliberately indifferent" under a subjective standard if the staff "knows of and disregards an excessive risk to inmates' health or safety...."22 This does not require proof of an intent to inflict pain or a detailed inquiry into the prison staff's state of mind,23 but the conduct or lack of conduct must demonstrate a knowing indifference to serious medical needs.24

The prisoner must establish that there was a purposeful act or failure to act on the part of the prison staff to a serious medical need.25 "An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain" sufficient to demonstrate deliberate indifference,26 nor does "an inadvertent failure to provide adequate medical care" by itself create a cause of action under 1983.27 A prisoner must establish that prison staff purposefully ignored or failed to respond to the pain or possible medical need in order for deliberate indifference to be established.28 The Sixth Circuit stated: "In order to state an Eighth Amendment claim in a medical mistreatment case, a prisoner must show unnecessary suffering brought about by the deliberate indifference of prison ... staff to his needs."29

Courts have held that when the need for medical treatment is obvious, medical care that is so cursory as to amount to no treatment at all may constitute deliberate indifference.30 Also, a court held that "[a] doctor's decision to take an easier and less efficacious course of treatment" may constitute deliberate indifference.31 Under the Eighth Amendment, doctors are required to provide appropriate medical care for serious medical needs and cannot take short-cuts.

Examples of Deliberate Indifference

(a) Handicapped Prisoners32: Under the Eighth Amendment, prison staff must provide reasonably adequate care to prisoners with disabilities.33 Deliberate indifference was found to exist when a doctor knew of a prisoner's paralysis, knew that a wheelchair could not fit in the prisoner's cell, and knew that the prisoner could have been admitted to the infirmary if the doctor so chose. The doctor refused to place the prisoner in the infirmary and the prisoner also was not able to care properly for his medical condition.34 In another case, a court found that prison staff were deliberately indifferent to a prisoner when they took no steps to correct the following conditions that they knew about: wheelchair would not fit in the cell; confinement to bunk for about three months with no opportunity to move about or exercise injured limbs; and no access to a shower even though he had problems controlling urination and bowel movements.35

(b) Dental Care: In deciding whether the failure to provide adequate dental care exhibits deliberate indifference, a court will review the particular facts of the case.36 The court will consider the pain suffered by the prisoner from the delay in providing the dental care,37 the deterioration of the teeth due to a lack of treatment,38 and the inability of the prisoner to engage in normal activities while being denied dental care.39 In one dental care case, the court held that three to five seconds of being subjected to a drilling procedure is not deliberate indifference "where there is a medical reason that anesthetic or anesthesia cannot be safely or conveniently provided,...."40

(c) Disagreement With Doctor as to Medical Care: A refusal to permit medical treatment may, in certain circumstances, state an Eighth Amendment claim.41 However, a difference of opinion between a prisoner and prison medical staff as to what treatment is proper and necessary does not give rise to a deliberate indifference claim.42 The Sixth Circuit has stated: "Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law."43

(d) Delay in Medical Treatment: An issue that is common in most prison medical care systems is delay in approving medical care or in its implementation once ordered. However, delay by itself will not violate the Eighth Amendment.44 In deciding whether delay in medical care rises to the level of deliberate indifference, courts will look at the length of delay,45 the detrimental effect of such delay46 and, most importantly, the pain that results from such delay.47

In prison systems, generally, most non life-threatening medical conditions are subject to significant delays in the providing of treatment. When significant delay and substantial pain are present in these non life-threatening situations, an Eighth Amendment violation may exist.48

(e) Prescribed Treatment: An Eighth Amendment claim is stated by the failure of prison staff to provide prescribed crutches, bedding and/or medication.49 Prison staff delaying for non-medical reasons the recommended treatment of a prisoner is in violation of the Eighth Amendment.50 In one case, a court found that prison staff confiscation of a sling interfered with previously prescribed medical treatment in violation of the Eighth Amendment.51

(f) Access to Outside Care: A prisoner has no independent constitutional right to medical care outside the institution.52 However, since a prison medical care system rarely provides the complete range of necessary medical services within their walls, the failure to obtain the necessary medical care for a prisoner from a source outside the prison may constitute deliberate indifference.53 To state a claim for failure to provide medical care at an outside medical facility, the prisoner must demonstrate that the medical need "was `sufficiently serious' to meet the objective element of the deliberate indifference test,", and that the delay in meeting that need caused "substantial harm."54 Finally, prison officials "may not allow security or transportation concerns to override a medical determination that a particular inmate is in need of prompt treatment and must be transported to an appropriate facility."55

B. Supervisory Liability

The director of the prison system, the medical director, and the warden cannot be held personally liable for every unconstitutional act that takes place in a prison.56 Stated otherwise, "There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it ...."57 There must be a showing that supervisory personnel either personally participated in the acts comprising the alleged constitutional violation or instigated or adopted a policy that violated the prisoner's constitutional rights.58

Generally, courts have applied a three-prong test to determine whether a supervisor is liable: (1) whether the supervisor's failure to adequately train and supervise subordinates constituted deliberate indifference to a prisoner's medical needs;59 (2) whether a reasonable person in the supervisor's position would understand that the failure to train and supervise constituted deliberate indifference;60 and (3) whether the supervisor's conduct was causally related to the subordinate's constitutional violation.61

Co-Payment for Medical Care

Courts have held that charging prisoners who can pay for medical care is permitted, and does not constitute deliberate indifference or violate due process.62 If the prisoner's refusal to pay results in any delay or denial of medical care, prison staff will not be found to be deliberately indifferent.63 Prison staff's refusal to provide medical care based upon the lack of ability to pay would constitute deliberate indifference if the medical care sought was for a serious medical need.64

Impact of Prison Litigation Reform Act (PLRA)

1. Physical Injury Requirement

Section 1997e(e), of 42 U.S.C., provides: "No federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."

On its face, the statute would appear to allow prison officials carte blanche to impose mental and emotional injury on prisoners as long as there are no "physical injuries." However, courts have held that the statute does not preclude injunctive relief when no "physical injury" is involved.65

Congress failed to define the term "physical injury" and also failed to provide a reference in the legislative history of the PRLA as to what this term means.66 However, Congress did make it clear that a prisoner had to allege only a "physical injury" and not a "severe physical injury" to recover damages for mental or emotional injuries. The question then becomes what is meant by the term "physical injury" in regards to a claim of deliberate indifference to a medical need.

In determining what words in a statute mean, courts will examine the language of the statute to determine if the meaning can be ascertained. If the language of a statutory provision is clear and unambiguous on its face, the language is then presumed to have a plain meaning unless the text suggests an absurd result.67 In determining the meaning of words, such as "physical injury," a court may "refer to dictionaries for guidance."68 "Physical" is defined by the dictionary to mean, "of or relating to the body; concerned or preoccupied with the body and its needs."69 "Injury" is defined as "an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm: wrong."70 In applying these two definitions to medical cases, prisoners should be able to establish a "physical injury" if there has been any swelling or infection, any deterioration (change) in a body part, or trauma which resulted in substantial pain from the harm caused by prison staff.71

Some courts have held § 1997e(e) "physical injury" provision is inapplicable when a prisoner asserts a violation of a fundamental constitutional right, such as medical care, for which a physical injury is not necessarily an element of that claim.72 Other courts have required at least a de minimis injury to meet the "physical injury" requirement of the PLRA.73 Other courts have required a separate showing of physical injury, beyond the showing of deliberate indifference, to recover damages for mental or emotional injury.74 However, even if § 1997e(e) precludes an award of compensatory damages for mental or emotional injury based on the lack of a physical injury, it does not bar other forms of relief, including nominal or punitive damages or injunctive relief, provided substantive violations of fundamental constitutional rights are demonstrated.75

2. Exhaustion of Administrative Remedies

Under the PLRA, a prisoner is required to exhaust all available administrative remedies before bringing suit on a federal claim. Specifically, section 1997e(a) provides: "No action shall be brought with respect to prison conditions under section ... 1983 [of this title], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. 1997e(a).76 This requirement applies even if the grievance process does not permit the award of money damages and money damages is the only remedy being sought by the prisoner.77

Under the PLRA, the grievance filed must specifically state the issue pertaining to the denial of medical care being complained of and list the name or names of the staff that caused the violation.78 If the identity of the prison staff is not known, a request for the name of the prison staff, even if not provided in response to the grievance, is sufficient for exhaustion purposes.79

Liability of Contractual Providers

If the State contracts out to a private entity one of its traditional functions, such as providing medical services to prison prisoners, the private entity may be sued under 42 U.S.C. § 1983 as one acting "under color of state law."80 A private entity providing contractual services which are a traditional function of a State can raise most of the defenses that the State can when sued.81 However, people who provide services to prisoners on a one-time basis without a contract with the State do not act under color of state law.82 Further, private contractors are not entitled to the defense of qualified immunity in lawsuits alleging violation of constitutional rights.83

Even though the State has contracted with a private entity to provide medical care, State prison officials can be liable if the contractor does not provide adequate medical care and the State has knowledge of that failure. As the Court noted in West v. Atkins: "Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide medical care to [the prisoner]...."84


The requirement that the State must provide adequate medical care to prisoners still exists regardless of shrinking budgets and contracting out of that care. The PLRA has not directly impacted on the State's obligation to provide adequate medical care. What probably is now required pursuant to the PLRA, if compensatory damages is sought in a lawsuit, is to allege some type of "physical injury" that either caused the need for the medical care or resulted from the care. Finally, the administrative grievance process must be exhausted, which requires stating in the grievance the person who failed to provide the medical care and the medical care that was not provided.

1 Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285 (1976). ("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...."). "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are `serious.' " Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992).

2 See, Ronald Young, "DYING FOR PROFITS: CMS and the Privatization of Prisoner Health Care", Prison Legal News, Vol. 11, No. 12 (Dec. 2000). See also Moore v. Jackson, 123 F.3d 1082, 1088 (8th Cir. 1997) ("appropriate for a jury, ... to determine whether CMS had a custom or procedure of misplacing, ignoring or destroying MSRs [medical service request forms] with resulting harm to the inmates.").

3 The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. Const. amend. VIII. Courts have held that pretrial detainees are entitled to the same protection afforded convicted inmates who have serious medical needs. See Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).

4 See, Wilson v. Seiter, 893 F.2d 861, 863 (6th Cir. 1990); Ruiz v. Estelle, 503 F.Supp. 1265, 1345 (S.D.Tex. 1980), aff'd in part and vacated in part on other grounds, 679 F.2d 1115 (5th Cir.1982), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983); Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977) (state's obligations under Eighth Amendment ends if it furnishes its prisoners with reasonably adequate food, clothing, sanitation, medical care, and personal safety), rev'd in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057 (1978) (per curiam).

5 United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987); See also Fernandez v. United States, 941 F.2d 1488, 1493-94 (11th Cir. 1991) (citing to DeCologero).

6 Tillery v. Owens, 719 F.Supp. 1256, 1301 (W.D.Pa. 1989), aff'd, 907 F.2d 418 (3d Cir. 1990); accord, Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 198), cert denied, 450 U.S. 1041 (1981).

7 Estelle v. Gamble. at 104-05 (citations and footnotes omitted). One court has stated that "[t]he requirement of deliberate indifference is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because `[t]he State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.' " See also McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1991), (quoting Hudson, 503 U.S. at 5), overruled on other grounds, WMX Techs v. Miller, 104 F.3d 1133 (9th Cir. 1997).

8 Estelle v. Gamble, supra 429 U.S. at 106 (citations and footnotes omitted) (where medical personnel saw inmate 17 times in 3 months and treated back strain with bed rest, muscle relaxants, and pain relievers, their failure to x-ray inmate's broken back or implement other diagnostic techniques or treatment was not deliberate indifference); see also Bellecourt v. United States, 994 F.2d 427, 431 (8th Cir. 1993) (fact that prison doctor misdiagnosed inmate's condition, that method of physical examination and treatment may not have followed community standards, or that doctor disagreed with inmate's suggested course of treatment did not amount to deliberate indifference).

9 See, McGhee v. Foltz, 852 F.2d 876, 881 (6th Cir. 1988) (claim of "gross negligence" does not violate Eighth Amendment); Walker v. Norris, 917 F.2d 1449, 1454 (6th Cir. 1990) ("gross negligence cannot support a section 1983 substantive due process claim in the prison context."); Franklin v. Zain, 152 F.3d 783, 786 (8th Cir. 1998) (showing of even gross negligence is not enough to establish deliberate indifference to serious medical needs (citation omitted)).

10 See Brooks v. Deleste, 39 F.3d 125. 129 (6th Cir. 1994); cf. Farmer v. Brennan, 511 U.S. 825, 843 n.8, 114 S.Ct. 1970 (1994). See also Dulany v. Carnahan, 132 F.3d 1234, 1239-40 (8th Cir. 1997), overruling DeGidio v. Pung, 920 F.2d 525 (8th Cir. 1990) (repeated acts of negligence by themselves constitutes deliberate indifference).

11 Farmer v. Brennan, supra 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-300, 111 S.Ct. 2321 (1991). See also Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (inmate must demonstrate that the medical deprivation was objectively serious and that prison officials subjectively knew about the deprivation and refused to remedy it).

12 Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981); accord Wilson v. Seiter, 501 U.S. at 298; see also Ellis v. Butler, 890 F.2d 1001, 1003 n1 (8th Cir. 1989) ("medical condition need not be an emergency in order to be considered serious under Estelle.").

13 See, e.g., Hicks v. Frey, 992 F.2d 1450, 1457 (6th Cir. 1993) ("Extreme conduct by custodians that causes severe emotional distress is sufficient" to state a claim); Parrish v. Johnson, 800 F.2d 600, 605 (6th Cir. 1986) (same). See also Hudson v. McMillian, supra 503 U.S. at 9, where the Supreme Court held that the medical need only had to be "serious."

14 Borretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir. 1991) ("[A] prisoner who suffers pain needlessly when relief is readily available has a cause of action against those whose deliberate indifference is the cause of his suffering."); cf Estelle v. Gamble, supra (denial of medical care may result in pain and suffering which no one suggests would serve a penological purpose). Cf. Hudson v McMillian, supra 503 U.S. at 10 ("The dissent's theory that [precedent] requires an inmate who alleges excessive use of force to show serious injury in addition to the unnecessary and wanton infliction of pain misapplies [precedent] and ignores the body of our Eighth Amendment jurisprudence.") (emphasis in original). See also Section V, infra, for a discussion as to the impact of the PLRA's requirement of a physical injury to recover in a medical case.

15 See Murphy v. Walker, 51 F.3d 714, 719 (7th Cir. 1995) ("Any injury to the head inflicting prolonged pain and discomfort mandates medical evaluation within a reasonable period of time."); Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001) ("every day that the defendants ignored the plaintiff's request for treatment increased his pain"); Robinson v. Moreland, 655 F.2d 887, 889-90 (8th Cir. 1981) (weekend delay in treating a broken hand stated cause of action); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (less critical needs may be denied, however, for reasonable periods of time when disciplinary needs warrant); Hunt v. Dental Dep't, 865 F.2d 198, 200-01 (9th Cir. 1989) (concluding that allegations of three-month delay in replacing dentures, which caused pain to inmate, stated a claim of deliberate indifference); McGuckin v. Smith, supra 974 F.2d at 1060 (inmate must show that prison officials purposefully ignored or failed to respond to the inmate's pain or medical needs in order to establish deliberate indifference).

16 Duran v. Anaya, 642 F.Supp. 510, 524 (D. N.M. 1986) (citing to Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H.1977)); Henderson v. Harris, 672 F.Supp. 1054, 1059 (N.D. Ill. 1987) (citations omitted); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) ("Deliberate indifference to serious medical needs is shown when prison officials have prevented an inmate from receiving recommended treatment or when an inmate is denied access to medical personnel capable of evaluating the need for treatment."); Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995) (serious medical need is one obvious to layperson or supported by medical evidence, like physician's diagnosis); Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 2000).

17 McGuckin v. Smith, supra 974 F.2d at 1059-60; Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 2000); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), but see Frahm v. Starks, 809 F.Supp. 26, 29 n.11 (E.D. Mich. 1992) ("Courts utilizing this [McGuckin] analysis might erroneously find a constitutional violation where medical treatment has been purposefully denied due merely to a negligent or mistaken assessment of a plaintiff's physical condition."). Based upon later Sixth Circuit decisions, Frahm is probably not good law. See Boretti v. Wiscomb, supra 930 F.2d at 1154-55 (needless pain is actionable even if there is no permanent injury).

18 See McGuckin v. Smith, supra 974 F.2d at 1060; Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (inmate's need for prescription eyeglasses constituted a serious medical condition where, as result of not having glasses, the inmate suffered headaches, his vision deteriorated, and he was impaired in daily activities); Tillery v. Owens, supra 719 F.Supp. at 1286.

19 800 F.2d 600, 610-11 (6th Cir. 1986).

20 Id.

21 Boretti v. Wiscomb, supra 930 F.2d at 1154-55 (affirming that an actual injury is not required for a finding of an Eighth Amendment violation).

22 Farmer v. Brennan, supra 511 U.S. at 837; see also Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (medical treatment that is "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness" constitutes deliberate indifference).

23 Hicks v. Frey, supra 992 F.2d at 1455. In Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993), prison staff argued that they lacked actual knowledge of the injury that the inmate suffered. The district court found that "Dr. Chaboudy, by virtue of his long tenure at the facility, should have known that his refusal to admit the plaintiff to the infirmary would result in the conditions which he did in fact endure ..." The Sixth Circuit stated that "the squalor in which Weeks was forced to live as a result of being denied a wheelchair was clearly foreseeable by Dr. Chaboudy." Id. at 187.

24 See Boretti v. Wiscomb, supra 930 F.2d at 1154-55; Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983) (per curiam) (deliberate refusal on the part of prison officials to provide an inmate with prescribed medication may demonstrate the state of mind of deliberate indifference); Milteor v. Beorn, 896 F.2d 848 (4th Cir. 1990) (failure to provide the care that a treating physician himself believes is necessary could be found to be conduct which surpasses negligence and constitutes deliberate indifference (citation omitted)); Weeks v. Chaboudy, supra 984 F.2d at 187; Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985) (when the need for medical treatment is obvious, medical care that is so cursory as to amount to no treatment at all may constitute deliberate indifference); Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.) (per curiam), cert. denied, 496 U.S. 928 (1990) (delay in access to medical care that is "tantamount to `unnecessary and wanton infliction of pain,' " may constitute deliberate indifference to a inmate's serious medical needs (quoting Estelle, 429 U.S. at 104)). However, prison staff may rebut a claim of deliberate indifference to a serious medical by producing medical records of sick calls, examinations, diagnoses, and medications. See Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993).

25 In establishing deliberate indifference, inmates must frequently resort to a comparison to the contemporary standard of the medical professional when challenging action involving the exercise of medical judgment by prison staff. Usually, inmates will be required to produce opinions of medical experts asserting that the inmate's treatment was so grossly contrary to accepted medical practices as to amount to deliberate indifference. See Howell v. Evans, 922 F.2d 712, 719 (11th Cir. 1991).

26 Estelle v. Gamble, supra 429 U.S. at 105 (emphases added).

27 Id.

28 Scharfenberger v. Wingo, 542 F.2d 328, 330 (6th Cir. 1976) ("a prisoner's custodians cannot lawfully deny adequate medical care even in instances of deliberate self injury.").

29 Thaddeus-X v. Blatter, 175 F.3d 378, 401 (6th Cir. 1999).

30 See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (citing with approval Ancata v. Prison Health Services, Inc., supra 769 F.3d at 704).

31 See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); see also Campbell v. Sikes, 169 F.3d 1353, 1365 (11th Cir. 1999) (Farmer v. Brennan, supra, did not affect Waldrop since it was based on the existence of evidence of subjective awareness of deliberate indifference); McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (Waldrop cited with approval); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

32 Failure to provide medical care to disabled inmates may also violate the Americans with Disabilities Act or the Federal Handicapper Act. Neither of these acts is discussed in this article. See, e.g., Roop v. Squadrito, 70 F.Supp.2d 868, 876 (N.D. Ind. 1999) (must show how disability caused denial of medical care).

33 Leach v. Shelby County, 891 F.2d 1241 (6th Cir.), cert. denied, 495 U.S. 932 (1989) (" `deplorable' conditions under which inmate Leach was incarcerated (he was not bathed or given a hospital mattress for several days, in spite of his paraplegic condition) established that his serious medical needs were deliberately ignored."); see also Kaufman v. Carter, 952 F.Supp. 520, 527 (W.D. Mich. 1996) ("A medical condition that threatens one's ability to walk, even if ultimately reversible, is unquestionably a serious matter.").

34 Weeks v. Chaboudy, supra 934 F.2d at 187.

35 Hicks v. Frey, supra 992 F.2d at 1457.

36 See Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000) ("dental conditions (like other medical conditions) vary in severity and ... a decision to leave a condition untreated will be constitutional or not depending on the facts of the particular case.").

37 See Fields v. Gander, 734 F.2d 1313, 1314-15 (8th Cir. 1984) ("severe pain" due to infected tooth).

38 See Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (three-week delay in dental treatment aggravated problem); Hunt v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989) (claim stated by three-month delay in obtaining replacement dentures); Fields v. Gander, 734 F.2d 1313 (8th Cir. 1984) (claim stated by three-week delay in providing dental care); Williams v. Scully, 552 F.Supp. 431, 432 (S.D. N.Y. 1982) (finding a material issue of fact as to deliberate indifference after an inmate was made to wait five and a half months for refilling of a cavity, resulting in infection and loss of the tooth).

39 See Hunt v. Dental Dep't, supra 865 F.2d at 200 (plaintiff complained that he was unable to eat properly); cf. Dean v. Coughlin, 623 F.Supp. 392, 404 (S.D. N.Y. 1985) (holding that "dental needsfor fillings, crowns, and the likeare serious medical needs as the law defines that term"), vacated on other grounds, 804 F.2d 207 (2d Cir. 1986).

40 Bout v. Bolden, 22 F.Supp.2d 646, 652 (E.D. Mich. 1998).

41 See, Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989) (noting that "knowledge of the need for medical care and intentional refusal to provide that care constitute deliberate indifference"); Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988); see also Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995) (when plaintiff repeatedly complained of severe pain, defendant doctor's frequent examinations of plaintiff did not preclude finding of deliberate indifference, because "[a] jury could infer deliberate indifference from the fact that [defendant] knew the extent of [plaintiff]'s pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [plaintiff]'s situation"), Hunt v. Uphoff, supra 199 F.3d at 1223-24 (holding that an inmate's claim that he was denied adequate and timely medical assistance did not reflect "mere disagreement with his medical treatment," and that "the fact that he has seen numerous doctors [does not] necessarily mean that he received treatment for serious medical needs, i.e., that treatment was prescribed at all or that prescribed treatment was provided").

42 See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (disagreements with the prison staff about medical care does not establish deliberate indifference); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (a disagreement between an inmate and his physician concerning whether certain medical care was appropriate is actionable under Sec. 1983 only if there were exceptional circumstances).

43 Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).

44 See, e.g., Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994) (some delay in rendering medical treatment may be tolerable depending on the nature of the medical need and the reason for the delay); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978) (11-hour delay in examining inmate's painfully swollen and obviously broken arm may state a claim), cert. denied, 446 U.S. 928 (1980); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (eleven-day delay in elective surgery does not constitute deliberate indifference); Boblett v. Angelone, 957 F.Supp. 808, 814 (W.D. Va. 1997) (delay in medical care caused by inmate's own actions does not amount to deliberate indifference on the part of staff). However, a delay in providing medical care to extract a confession may violate the Eighth Amendment. See, Taylor v. Bowers, 966 F.2d 417, 423 (8th Cir. 1992) (doctor's delay of surgical intervention in order to prompt inmate to confess he swallowed a drug-filled balloon violated inmate's right to treatment of serious medical condition)).

45 See, Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir. 1990) (failure to examine inmate going through "life-threatening" and "fast-degenerating" condition for three days could constitute deliberate indifference); Hathaway v. Coughlin, 841 F.2d 48, 50- 51 (2d Cir. 1988) (delay of two years in arranging surgery to correct pins in inmate's hip raises question of fact as to deliberate indifference of prison officials' conduct).

46 See, Carswell v. Bay County, 854 F.2d 454, 455 (11th Cir. 1988) (inmate made repeated requests for medical treatment which were ignored over an eleven week period during which the plaintiff lost approximately 53 lbs); Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) ("[d]elay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm."); Hunt v. Uphoff, supra 199 F.3d at 1224 (stating that officials may be "held liable when [a] delay results in a lifelong handicap or a permanent loss").

47 See Coleman v. Rahija, supra 114 F.3d at 784 ("Coleman presented sufficient `verifying medical evidence' that Rahija "ignored a critical or escalating situation or that the delay posed a substantial risk of serious harm" for her claim to succeed); Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (inmate failure to place verifying medical evidence in record to establish detrimental effect of delay in medical treatment precluded claim of deliberate indifference to medical needs); Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982) ("It is doubtful, for example, that any circumstance would permit a denial of access to emergency medical care."); Shannon v. Lester, 519 F2d 76 (6th Cir. 1975) (inmate may recover for any injury caused by delay in medical care and any concomitant pain, suffering or mental anguish); Westlake v. Lucas, supra 537 F.2d at 860 (allegation that plaintiff was left in severe pain over an extended period of time without the administration of analgesic relief sufficient to withstand motion to suppress); Fitzke v. Shappell, 468 F.2d 1072, 1078-79 (6th Cir. 1972) (failure to respond to complaints of pain for 12-17 hours for inmate who had hit his head on a telephone pole and blacked out constitutes a constitutional deprivation).

48 See, e.g., Johnson v. Lockhart, 941 F.2d 705 (10th Cir 1991) (10 month delay in elective surgery stated claim where substantial pain resulted); Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989) (long delay in scheduling "elective" surgery to repair nerve damage in inmate's arm that results in restriction in use of arm constitutes deliberate indifference); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986) (denial or delay of elective surgery due to budget constraints may state a claim); Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985), cert. denied, 475 U.S. 1096 (1986) (elective surgery may be delayed due to local government's interest in limiting the cost of jail detention); Derrickson v. Keve, 390 F.Supp. 905, 907 (D.Del. 1975) (failure to perform elective surgery on inmate serving life sentence would result in permanent denial of medical treatment and would render inmate's condition irreparable); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (eleven-day delay in elective surgery does not meet the "deliberate indifference" standard).

49 Johnson v. Hardin County, 908 F.2d 1280, 1284 (6th Cir. 1990) (holding that district court properly denied summary judgment on plaintiff's deliberate indifference claim where defendants, inter alia, frequently failed to provide plaintiff with all of his daily doses of pain medication); Boretti v. Wiscomb, supra 930 F.2d at 1156 (failure to comply with prescribed daily dressing changes and pain medication stated claim); Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (preventing an inmate from receiving recommended treatment states a claim). But see O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy requests for aspirins and antacids to alleviate headaches, nausea and pains is not constitutional violation; isolated occurrences of neglect may constitute grounds for medical malpractice but do not rise to level of unnecessary and wanton infliction of pain); Hudgins v. DeBruyn, 922 F.Supp. 144 (S.D. Ind. 1996) (holding that the prison policy requiring inmates to purchase over the counter medications with personal funds does not violate the Eighth Amendment).

50 See Monmouth County Correctional Institution Inmates v. Lanzaro, supra 834 F.2d at 346; Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (if the failure to provide adequate care in the form of physical therapy was deliberate, and motivated by non-medical factors, then claim is stated): Verser v. Elyea, 113 F.Supp.2d 1211, 1216 (N.D. Ill, 2000) ("no one who examined the record could reasonably or erroneously conclude that Mr. Verser could be denied the cheap and ordinary medical treatment (physical therapy and a knee brace or ace bandage!), prescribed by treating specialist, pursuant to the unexplained directions of a nonspecialist who never examined him, and that he would not even be allowed to complete the medical treatment that that physician directed").

51 See Wood v. Housewright, 900 F.2d 1332, 1337 (9th Cir. 1990); see also Jones v. Evans, 544 F.Supp. 769, 775 (N.D. Ga. 1982) (nonmedical employee's interference with prescribed care "can almost never be characterized as other than deliberate and indifferent."); Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970) (claim stated when warden refused to allow inmate authorized medicine that he needed to prevent serious harm to his health) (cited with approval in Estelle, 429 U.S. at 105 n. 12.); Kaminsky v. Rosenblum, 929 F.2d 922, 924, 927 (2d Cir. 1991) (summary judgment precluded by fact questions on deficiency of medical care and deliberate indifferencedespite the fact that inmate received "frequent medical attention" while in prisonin part because prison officials may have disregarded an independent doctor's recommendation of hospitalization).

52 Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 479 U.S. 930 (1986).

53 Ellis v. Butler, supra 890 F.2d at 1003 (cancellation of appointment with outside knee specialist may state deliberate indifference claim).

54 See, Sealock v. Colorado, supra 218 F.3d at 1210 (refusal to send inmate having heart attack to outside facility).

55 United States v. State of Michigan, 680 F.Supp. 928, 1002 (W.D. Mich. 1987). Cf. Bush v. Ware, 589 F.Supp. 1454, 1464 (E.D. Wisc. 1984) (medical appointment could be cancelled for security reasons when the inmate was going to be transferred to a hospital in a few days).

56 Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018 (1978). This principle also applies in civil rights action against federal officials, see Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991); Walker v. Norris, 917 F.2d 1449, 1455-57 (6th Cir. 1990). Respondent superior principles have been applied to liability of private corporations that provide medical services for State, see, Swan v. Daniels, 923 F.Supp. 626, 633 (D. Del. 1995).

57 Bellamy v. Bradley, 729 F.2d 416 (6th Cir.), cert. denied, 469 U.S. 845 (1984). See also Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 19920 (Deputy Superintendent of Treatment was responsible for responding to inmates' medical complaints and could be held liable for failure to do so), cert denied, 113 S.Ct. 2992 (1993); Greason v. Kemp, 891 F.2d 829, 839-40 (11th Cir. 1990) (warden who knew of inadequate psychiatric staffing could be held liable); Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985) (Director of Corrections held liable for his knowing failure to remedy improper segregation of inmate).

58 See Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1192 (11th Cir. 1994).

59 City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 923 (1988) (plurality opinion) (unconstitutional policy can be inferred from a single decision by the highest official responsible for policy in that area). See also Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988) (causal connection can be established when, for example, the inmate's injuries result from the supervisor's failure to provide an adequate staff to administer medical or mental health care), vacated, 490 U.S. 1087, 109 S.Ct. 2425 (1989) (remanded for consideration in light of City of Canton ); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) (causal connection found from supervisor's promulgation of "haphazard and ill-conceived procedures").

60 See Barber v. Salem, 953 F.2d 232, 236 (6th Cir. 1992); Howell v. Evans, 922 F.2d 712, 724 (11th Cir. 1991) (causation can be shown either that CMS was directly involved in the violation, or that a policy or custom of CMS led to the violation). "Acts of omissions are actionable ... to the same extent as acts of commission." Smith v. Ross, 482 F.2d 33, 36 (6th Cir. 1978); accord, Estelle v. Gamble, supra 429 U.S. at 106 (medical care claims may be based on "acts or omissions").

61 Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (active participation in the unconstitutional conduct or encouragement or condonement of the specific incident of misconduct can create supervisory liability); Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (finding supervisory liability on a claim of deliberate indifference to pre-trial detainee's serious medical needs where supervisor had received repeated complaints of inadequate staffing and failed to take action).

62 Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404 (9th Cir. 1985) (" `Co-pay' policies under which inmates must bear part of the cost of their treatment are Constitutionally permissible if they do not interfere with timely and effective treatment of serious medical needs.");Reynolds v. Wagner, 128 F.3d 166, 173-75 (3d Cir.1997); Jones-Bey v. Cohn, 115 F.Supp.2d 936, 940 (N.D. Ind. 2000) (Co-pay policy upheld where "inmates are to be provided medical attention even if they do not currently have money in their trust account to make a co-payment."); Hutchinson v. Belt, 957 F.Supp. 97 (W.D.La.1996) (finding that the prison's medical co-payment policy does not violate the Eighth Amendment). Courts have held that inmates do have a protected property interest in their money. Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997). However, since the copayment fee is deducted from inmates' accounts in exchange for medical services, courts are likely to find that there was no truly "deprivation" of property. See Jensen v. Klecker, 648 F.2d 1179, 1183 (8th Cir .1981) (per curiam) (no basis for due process claim where deductions from inmate accounts for postage were "assessment[s] for value received" and plaintiffs did not contend that they did not receive the services for which they were charged). Further, even if the copayment charge does deprive the inmates of property within the meaning of the Due Process Clause, the inmate must show that the State's post-deprivation procedure are inadequate to provide relief before a federal court will consider a federal property deprivation claim. See Vicory v. Walton, 721 F.2d 1062, 1063 (6th Cir. 1983); Scott v. Angelone, 771 F.Supp. 1064, 1067 (D. Nev. 1991) (no due process violation where money for medical charges deducted from inmate's account).

63 Reynolds, 128 F.3d at 175 ("If any delay occurs, it is solely because of the decisions made by the inmates themselves, not because of any conduct on the part of the prison administration.").

64 Shapley v. Nevada Board of State Prison Commissioners, supra 766 F.2d at 408 (inmate does not state a claim under the Eighth Amendment when he cannot allege that he was denied medical treatment because he was unable to pay a nominal co-payment or fee); Johnson v. Department of Pub. Safety & Corr. Serv., 885 F.Supp. 817, 820 (D. Md. 1995) ("because the policy mandates that no one shall be refused treatment for an inability to pay, the co-payment will not result in a denial of care").

65 See Harper v. Showers, 174 F.3d 716, 719 (5th Cir.1999); Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997). See also Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998), where the court stated that the PLRA physical injury requirement does not apply to someone who is not a "prisoner" at the time suit is brought.

66 "[T]here is no statutory definition of "physical injury" as used in § 1997e(e)." Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999).

67 See Vergos v. Gregg's Enterprises, Inc., 159 F.3d 989, 990 (6th Cir 1998); People v. Fields, 448 Mich. 58, 67, 528 N.W.2d 176 (1995) (since the "Legislature did not define the phrase `physical injury,' this Court must give those words their common, ordinary meanings").

68 People v. Wilson, 230 Mich.App. 590, 592, 585 N.W.2d 24 (1998).

69 Webster's Third New International Dictionary, at 1706; see also Random House Webster's College Dictionary (1997), p. 672, defines the term "physical" as "of or pertaining to the body."

70 Webster's Third New International Dictionary, at 1164; see also Random House Webster's College Dictionary (1997), p. 983, defines the term "injury" as "harm or damage done or sustained." See also Knight v. Caldwell, 970 F.2d 1430, 1433 (5th Cir. 1992) ("defined injury as `damage or harm to the physical structure of the body, including diseases that naturally result from the harm.'" The court went on to state that this definition is consistent with the analysis set forth in Hudson v. McMillan, supra).

71 Courts have found the existence of a "physical injury" where superficial lacerations and abrasions, along with evidence of wanton and unnecessary use of force resulting in severe pain, see, e.g., Brooks v. Kyler, 204 F.3d 102, 109 (3d Cir. 2000), and where bruises, welts and abrasions resulted from guard beating, Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 2001). See also supra notes 13 and 14. Cf. Herman v. Holiday, 238 F.3d 660, 665-6 (5th Cir. 2001) (fear does not constitute a physical injury for purposes of § 1997e(e)).

72 See Wolfe v. Horn, 130 F.Supp.2d 648, 658 (E.D. Pa. 2001) (1997e(e) physical injury requirement satisfied where pre-operative transsexual inmate alleged that after her hormone therapy was withdrawn, she suffered headaches, nausea, vomiting, cramps, hot flashes and hair loss and that with the re-emergence of masculine physical characteristics (reduced breast size, increased body hair and lowered voice pitch), she became depressed and suicidal);Sealock v. Colorado, supra 218 F.3d at 1210-11 (where inmate alleged that sergeant was deliberately indifferent to his need for medical attention, heart attack satisfied 1997e(e)'s physical injury requirement even though inmate presented no evidence that delay caused by sergeant resulted in any damage to his heart, where jury could find the delay prolonged inmate's pain and suffering); see also Harrison v. Barkley, 219 F.3d 132, (2d Cir. 2000) (holding defendants' alleged refusal to treat inmate's tooth cavity would constitute deliberate indifference to serious medical need under Eighth Amendment, even though inmate did not ultimately suffer serious physical harm, provided defendants knew of and disregarded risk to inmate's serious medical needs); Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (body cavity search that was "alleged sexual assaults qualify as physical injuries as a matter of common sense");; cf. Warburton v. Underwood, 2 F.Supp.2d 306, 315 (W.D. N.Y. 1998) (declining to dismiss First Amendment Establishment Clause claim for failure to comply with physical injury requirement under 42 U.S.C. 1997e(e) despite the fact that the only injury plaintiff could experience as a result of a constitutional violation under the Establishment Clause would be mental or emotional).

73 See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997) ("absence of any definition of `physical injury' in the new statute, we hold that the well established Eighth Amendment standards guide our analysis in determining whether a prisoner has sustained the necessary physical injury to support a claim for mental or emotional suffering. That is the injury must be more than de minimis, but need not be significant." (citation omitted)); Warren v. Westchester County Jail, 106 F.Supp.2d 559, 570 (S.D. N.Y. 2000) ("Although the [PLRA] does not define `physical injury,' the developing case law in this area reflects the view that, consistent with Eighth Amendment jurisprudence, the predicate injury need not be significant but must be more than de minimis."); Luong v. Hatt, 979 F.Supp. 481, 485-86 (N.D. Tex. 1997) ("physical injury" must be more than de minimis to satisfy ` 1997e(e)); Zehner v. Trigg, 133 F.3d 459 (7th Cir.1997) (left up to a jury to determine if the term "physical injury" as used in § 1997e(e) included exposure to noxious odors, including body odors from human discharges, and "dreadful" conditions of confinement, without undermining Congress' intent in enacting ` 1997e(e); Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493 (N.D. Ill. Oct. 19, 2001) (in finding that the inmates' allegation of "physical pain and emotional turmoil" from being shackled to their hospital beds sufficiently pleaded a claim and met the physical injury standard of the PLRA, court applied the excessive force standard " `the injury must be more than de minimis, but need not be significant'". Id. at *9).

74 See Zehner v. Trigg, 952 F.Supp. 1318, 1322 (S.D. Ind.) (physical injury requirement of ` 1997e(e) is not broad enough to encompass inhalation or ingestion of asbestos without proof of resulting disease or other adverse physical effects), aff'd, 133 F.3d 459 (7th Cir. 1997); Siglar v. Hightower, supra at 193-94 (claim based on sore and bruised ear lasting for three days was de minimis, and thus, plaintiff failed to raise valid Eighth Amendment claim for excessive use of force nor did he have requisite "physical injury" to support claim for emotional or mental suffering); Leon v. Johnson, 96 F.Supp.2d 244, 248 (W.D. N.Y. 2000) (a delay in providing medication is not an "injury" of the type contemplated by the statute); Cain v. Commonwealth of Virginia, 982 F.Supp. 1132, 1135 n. 3 (E.D. Va. 1997) (headaches causing vision loss and requiring pain medication as well as numbness, joint pain and stomach cramps did not constitute physical injury within scope of ` 1997e(e)); Luong v. Hatt, supra (claim of Eighth Amendment failure to protect dismissed where inmate failed to demonstrate injuries sustained were more than de minimus and, thus, also were insufficient to support claim for mental or emotional suffering).

75 See, e.g. Allah v. Al-Hafeez, 226 F.3d 247, 253 (3d Cir. 2000) (holding that determination that 1997e(e) bars plaintiff's First Amendment claim for compensatory damages does not bar all claims for damages, such as nominal and punitive damages); Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 807 (10th Cir. 1999) (nominal and punitive damages may be available if no physical injury is shown upon remand); but see Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) (under PLRA, without physical injury, inmate can recover only nominal damages; punitive damages claims barred by the PLRA)

76An issue that has not been resolved is whether an inmate is required to exhaust administrative remedies prior to bringing an action alleging violation of the American Disabilities Act (ADA) and/or the Federal Rehabilitation Act (FRA). The ADA and FRA do not required exhaustion of administrative remedies before filing. See: Cable v. Department of Developmental Servs., 973 F.Supp. 937, 940 (C.D.Cal.1997) ("Courts have consistently held that there is no exhaustion requirement under Title II of the ADA."). Some courts have held that the PLRA's exhaustion provisions do not apply to ADA lawsuits. See: Parkinson v. Goord, 116 F.Supp.2d 390, 398 (W.D. N.Y. 2000) and cases cited; Finley v. Giacobbe, 872 F.Supp. 215, 219 n. 3 (S.D. N.Y. 1993) (Title II "adopts procedures set forth in 505 of the Rehabilitation Act" not Title VII and therefore does not require exhaustion).

77 Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (2001).

78 See: Curry v. Scott, 249 F.3d 493, 504 (6th Cir. 2001) (claim properly dismissed against guard when "none of the prisoners complained about Howard's behavior, nor even mentioned Howard in their prison grievances").

79 See: Irvin v. Zamora, 161 F.Supp.2d 1125, 1134 (S.D. Cal. 2001) ("plaintiff's grievances did present the relevant factual circumstances giving rise to a potential claim and did request the identities of the individuals directly responsible for spraying the pesticide. This was sufficient to put prison officials on notice of possible problems with these individuals.").

80 West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250 (1988); see also Street v. Corrections Corp. of Am., 102 F.3d 810 (6th Cir. 1996) (CMS a proper party to this 1983 action); Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993) ("It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates may be sued under 1983 as one acting `under color of state law.' "); Street v. Corrections Corp. of Am., supra (CMS cannot be held vicariously liable for the actions of its agents).

81 See: Edwards v. Alabama Dept. of Corrections, 81 F.Supp.2d 1242, 1255 (M.D. Ala. 2000) ("In order to prove that CMS should be liable, the plaintiffs would have to demonstrate that CMS itself directly caused the violation of their constitutional rights through their adoption of some official policy or practice."); Miller v. Correctional Medical Sys., Inc., 802 F.Supp. 1126, 1130 (D.Del.1992) (CMS can be liable if she can show that it engaged in a policy or custom that demonstrates deliberate indifference). Cf. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160 (1993) (holding that municipalities "cannot be held liable unless a municipal policy or custom caused the constitutional injury").

82 Calvert v. Hun, 798 F.Supp. 1226, 1229 (N.D. W. Va. 1992) ("the facts that prison administrators referred Plaintiff to Defendant Hibbs, a private physical therapist, and thereafter paid Hibbs for his services does not convert Defendant Hibbs into an individual whose actions are fairly attributable to the state"); McIlwain v. Prince William Hopsital, 774 F.Supp. 986, 989-90 (E.D. Va. 1991) (same).

83 Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100 (1997) (correctional officer working for a private contractor engaged by Tennessee to manage its prisons was not entitled to claim qualified immunity defense); see also Malinowski v. DeLuca, 177 F.3d 623, 624 (7th Cir.1 999) (holding that privately employed building inspectors were not entitled to claim qualified immunity under Richardson).

84 West v. Atkins, supra 487 U.S. at 53 (footnote omitted). See also Leach v. Shelby County Sheriff, supra 891 F.2d at 1250.

Daniel E. Manville is a 1981 graduate of Antioch School of Law and also has obtained a Master's Degree in Criminal Justice from Michigan State University. He concentrates his practice of law in the area of the rights of prisoners. He is the author of several self-help manuals for inmates (Prisoners' Self-Help Litigation Manual (3ed) and Prison Disciplinary Manual (to be published in 2003)), and former chairperson of the Michigan State Bar's Prisons and Corrections Committee.

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