On December 23, 2024, a panel of the U.S. Court of Appeals for the Eleventh Circuit, affirmed the grant of qualified immunity (QI) to defendant officials with the Georgia Department of Corrections (DOC) in the claim of a now-dead Georgia prisoner who suffered epileptic seizures and injury after his medication was withheld at Walker State Prison.

The panel’s decision followed a rehearing of Plaintiff’s earlier appeal in the case by the full Eleventh Circuit sitting en banc on July 10, 2024. Though the ruling marked the beginning of the end for the Estate of the prisoner, David Henegar, the Court’s decision is nonetheless important for other prisoners in the Eleventh Circuit in that it announced a new framework for demonstrating the subjective component of a deliberate indifference claim.

Henegar, then 39, was diagnosed with epilepsy and then denied prescribed anti-seizure medication over four consecutive days in August 2016, leaving him to suffer two seizures and permanent brain damage. He filed suit against DOC officials, but the federal court for the Northern District of Georgia granted Defendants QI and dismissed his claim, a decision affirmed by a panel of the Eleventh Circuit in 2023—only to be withdrawn later that same year for rehearing en banc, as PLN reported. [See: PLN, Apr. 26, 2024, online.]

By that point Henegar’s sister, Betty Wade, had replaced him as Plaintiff, after he was fatally strangled at another lockup in 2021. Her claim came down to what mens rea—state of mind—she was required to show for Defendants to be found deliberately indifferent to her brother’s serious medical need. In its withdrawn opinion, the Court’s panel admitted that “our case law” in this respect “has been hopelessly confused, resulting in what we’ll charitably call a ‘mess.’” That’s because Eleventh Circuit panels had repeatedly flip-flopped over the previous 30 years between two competing formulations of the mens rea requirement: “more than mere negligence” versus “more than gross negligence.” The panel cited 10 decisions from 1995 through 2020 reflecting the former standard and 15 more decisions from roughly the same period that reflected the latter. 

The panel agreed with that larger group, holding that “more than gross negligence” was required. In support of its choice, the panel noted that this was the standard enunciated in Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996) and expressly affirmed in Townsend v. Jefferson Cnty., 601 F.3d 1152 (11th Cir. 2010). But, as the panel also acknowledged, the Townsend holding was then rejected in Melton v. Abston, 841 F.3d 1207 (11th Cir. 2016), which adopted the “more than mere negligence’ standard of McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999). The panel hearing Wade and Henegar’s claim, however concluded that Townsend prevailed under the “prior panel-precedent rule,” since the Melton panel had impermissibly disagreed with the Townsend panel’s decision.

In sum, the panel held that “[t]o make out the subjective component of an Eighth Amendment deliberate indifference claim, a plaintiff must establish that the defendant (1) had subjective knowledge of the risk of serious harm, (2) disregarded that risk, and (3) acted with more than gross negligence.” Concluding that Wade failed to make the required showing, the panel then affirmed the district court’s dismissal. However, to address the intra-circuit split, a majority of Eleventh Circuit judges voted to vacate the ruling and rehear the case en banc.

Analysis and Conclusion of the Eleventh Circuit En Banc

When the full Court issued its ruling in July 2024, it explained that the parties had been instructed “not [to] concern themselves with the application of the ‘prior panel precedent rule’”; instead, they were directed to address the following question of law: “What is the standard for establishing liability on an Eighth Amendment deliberate-indifference claim?” The en banc Court’s opinion then answered that question.

The “Cruel and Unusual Punishment” Clause of the Eighth Amendment “should be understood to prohibit government officials from exhibiting ‘deliberate indifference to [the] serious medical needs of prisoners,’” the Court began, citing Estelle v. Gamble, 429 U.S. 97 (1976). But an Eighth Amendment violation may be found “only when two requirements are met,” the Court continued, quoting Farmer v. Brennan, 511 U.S. 825 (1994); as that same ruling described them, the two elements are (1) a deprivation of rights that “must be, objectively, sufficiently serious,” committed (2) by a prison official with “a sufficiently culpable state of mind”—what the Supreme Court of the U.S. (SCOTUS) called “deliberate indifference.”

In the instant case, the parties agreed, and the Court concurred, that Henegar’s unmedicated epilepsy satisfied the first requirement. So it was the second requirement that needed to be assessed. Quoting Wilson v. Seiter, 501 U.S. 294 (1991), the Court said “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” So the question came down to “whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.” But what is “deliberate indifference?” Returning to Farmer, the Court said that it “describes a state of mind more blameworthy than negligence” but “something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”

Because lower courts had correctly “equated deliberate indifference with recklessness,” SCOTUS in Farmer clarified that a defendant’s state of mind must reflect criminal recklessness, as opposed to civil recklessness—that is, he must have disregarded a risk of which he was subjectively aware, rather than one which he simply should have known. “The Eighth Amendment does not outlaw cruel and unusual ‘conditions,’” the Farmer court explained, but “cruel and unusual ‘punishments.’” Therefore, the “failure to alleviate a significant risk” that “should have [been] perceived but [was] not, while no cause for commendation, cannot … be condemned as the infliction of punishment.” 

The Farmer court also added a qualifier: even a “prison official who actually knew of a substantial risk to inmate health or safety may be found free of liability if [he] responded reasonably to the risk, even if the harm ultimately was not averted.” 

With those principles in mind, the en banc Eleventh Circuit “scrapped” both the “more than mere negligence” and “more than gross negligence” formulations. In their place, the Court announced a new framework based on Farmer’s criminal-recklessness benchmark. The answer to the question of “[w]hat is the standard for establishing liability on an Eighth Amendment deliberate indifference claim” is:

“First, of course, the plaintiff must demonstrate, as a threshold matter, that he suffered a deprivation that was objectively, sufficiently serious.

“Second, the plaintiff must demonstrate that the defendant acted with subjective recklessness as used in criminal law, and to do so he must show that the defendant was actually, subjectively aware that his own conduct caused a substantial risk of serious harm to the plaintiff—with the caveat, again, that even if the defendant actually knew of a substantial risk to inmate health or safety, he cannot be found liable under the Cruel and Unusual Punishments Clause if he responded reasonably to the risk.”

The Court also clarified the “risk” to inmate health and safety of which the defendant must be aware. The Court rejected Plaintiff’s contention that it was sufficient if the defendant knew that the prisoner faced a substantial risk of serious harm, whatever its cause or origin. The Court reasoned that the Farmer decision was focused “on the risks that the prison officials created by placing the inmate in a particular prison’s general population.” Which means, the Court continued, that it is the prison official’s subjective awareness that his own conduct is causing the substantial risk of serious harm which violates the Eighth Amendment’s prohibition on “inflicting” cruel and unusual punishment. Therefore, the Court held that a plaintiff making a deliberate-indifference claim “must show that the defendant official was subjectively aware that his own conduct—again, his own actions or inactions—put the plaintiff at substantial risk of serious harm.” See: Wade v. McDade, 106 F.4th 1251 (11th Cir. 2024).

Under that standard, a panel of the Court quickly affirmed dismissal of claims on remand in December 2024 against all defendants—none of whom thought his or her own conduct put the prisoner at risk, of course. Left unexplained was the new standard’s apparent contradiction of the reasoning relied on by SCOTUS in Farmer—that deliberate indifference DOES NOT require a showing that the defendant intended to cause harm or knew that harm would result from his actions or inactions. Wade was represented by attorneys from Mitchell, Shapiro, Greenamyre & Funt LLP in Atlanta and Loevy & Loevy in Chicago. See: Wade v. McDade, 2024 U.S. App. LEXIS 32496 (11th Cir.).  

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