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Study Finds Just 1% of Prisoner’s Eighth Amendment Claims Succeed
In a report published on December 19, 2024, Business Insider found just 1% of prisoners succeeded in claims against prison officials for violating the Eighth Amendment ban on “cruel and unusual” punishment.
To arrive at that figure, researchers combed through 1,488 prisoner complaints filed from 2018 to 2022, including all that reached a ruling at a federal appellate court. Plaintiffs prevailed in just 11 of those cases, including two certified as class actions.
“If a right is unenforceable, then it’s not much of a right,” said former judge Paul Grimm of the federal court for the District of Maryland. “It is essentially unavailable.”
The report identified key forces at work in the erosion of prisoner civil rights, including the 1996 passage of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. That law required prisoners to exhaust any available administrative remedies before filing suit. It also amended 28 U.S.C. § 1915(g) to prevent a prisoner with three prior losses—called “strikes”—from claiming poverty to proceed in forma pauperis without paying filing fees. Those now total over $400, equivalent to 10 weeks of wages at the typical United States prison job; in eight states, prisoners earn nothing for their work.
Cases that survive PLRA screening face a steep battle, thanks to rulings from the Supreme Court of the U.S. (SCOTUS). Since Whitley v. Albers, 475 U.S. 312 (1986), a guard cannot be held liable for brutalizing a prisoner unless it can be proven that he did so “maliciously and sadistically.” Since Farmer v. Brennan, 511 U.S. 825 (1994), a prison official cannot be held liable for neglecting a prisoner’s health and safety unless it can be proven that he was “deliberately indifferent” to a risk of which he is “subjectively aware.”
This focus on the mental state of prison officials has created “an enormous barrier to justice for incarcerated people,” said David Fathi, National Prison Project Director at the American Civil Liberties Union (ACLU). If you can prove that you were abused or neglected, you shouldn’t “have to go looking for someone who was thinking bad thoughts,” he said.
Given difficulties that prisoners face in litigating their claims—most proceeding pro se, without an attorney representing them—it was stunning that just 4% of the cases studied were abandoned by Plaintiffs. Another 25% didn’t survive PLRA screening. Then there were 49% that failed to establish they were victimized with “deliberate indifference,” plus 6% more that failed to prove “malicious and sadistic” intent. About 1% managed to clear all those hurdles only to lose when Defendants were granted legal immunity, including “qualified immunity” because there was no existing case law calling what they did unconstitutional.
PLRA also limited prisoners to recovering damages for physical injuries, rather than psychological harm. With the law’s requirement to exhaust administrative remedies, prison officials were incentivized to make grievance processes as complicated as possible to ensure more complaints failed to survive PLRA screening. The law additionally capped fees for attorneys, discouraging them from taking on prisoner cases.
Lawmakers passing PLRA cited a flood of “frivolous” prisoner lawsuits that actually never existed; University of Michigan professor and researcher Margo Schlanger found that before PLRA was passed in 1996, prisoners filed suit at the same rate as those not incarcerated. Within five years after the law, the total number of prisoner suits plummeted 43%, even as the number of prisoners exploded with the era’s “tough on crime” sentencing policies.
The SCOTUS ruling in Farmer had the most devasting effect, the study found. Of 1,361 prisoner cases in which a court went looking for deliberate indifference, it was found in only 10—though another 161 were settled by prison officials without admitting liability. As long as they can plausibly claim ignorance of a risk that the prisoner faced, they stand a good chance of beating back a deliberate indifference claim. But as Chicago Lawyers’ Committee for Civil Rights Executive Director David Shapiro noted, “What is the easiest lie to tell? I didn’t know.”
As Justice Harry A. Blackmun wrote in his dissent to the Farmer ruling, “A punishment is simply no less cruel or unusual because its harm is unintended.” But as civil rights attorney Michelle Alexander noted, the deliberate indifference standard “allow[s] a prison official to argue to the jury that although a particular risk of harm was plainly obvious, and a reasonable prison official would have been aware of it, he wasn’t.”
In the cases studied, prisoners who accused prison officials of brutality faced similarly steep odds in proving that they were “malicious and sadistic.” Guards and other staffers beat back the claim 70% of the time, settling the case without admitting liability in another 29% of cases. The win rate for prisoners? There was only one, representing less than 1%.
When medical neglect was alleged, only five cases—about 10% of the total—were successful. Most of the rest settled, often for paltry amounts. That means that in almost all cases, there was a plausible claim made that medical care was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness,” as the standard was defined by the U.S. Court of Appeals for the Eleventh Circuit in Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991).
So why did so many prisoners settle these plausible claims? As the Sixth Circuit explained in Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976), as long as “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.” As the study also noted, the subset of medical neglect claims filed against private contractors faced the additional hurdle of proving there was a corporate policy or custom that could be blamed for the injury. So just 31 of 210 cases were lost or settled by this group of profiteering defendants: Wexford Health Sources, Corizon Health, Wellpath, Centurion, CoreCivic, GEO Group, PrimeCare, Armor Health and Correctional Dental Associates.
While civil rights suits filed outside prison reach settlements 45% of the time, just 14% of those brought by prisoners settle. Crucially, a prisoner’s chance of securing a settlement increased from 9% to 31% with legal representation, and everyone who won outright had an attorney. “Pro se litigants do not win cases in federal court,” declared Virginia civil rights lawyer Victor Glasberg, who said that their chance of “getting to first base is about as good as my flying to the moon.” Prisoners also did better before a jury; that included just 2% of the cases studied but half of those who were successful.
Source: Business Insider
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Related legal cases
Farmer v. Brennan
| Year | 1994 |
|---|---|
| Cite | 511 U.S. 825 (U.S. Supreme Court 1994) |
SUPREME COURT OF THE UNITED STATES
511 U.S. 825; 114 S. Ct. 1970; 128 L. Ed. 2d 811
DEE FARMER, PETITIONER v. EDWARD BRENNAN, WARDEN, ET AL.
No. 92-7247
January 12, 1994, Argued
June 6, 1994, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
DISPOSITION: Vacated and remanded.
SYLLABUS:
Petitioner, a preoperative transsexual who projects feminine characteristics, has been incarcerated with other males in the federal prison system, sometimes in the general prison population but more often in segregation. Petitioner claims to have been beaten and raped by another inmate after being transferred by respondent federal prison officials from a correctional institute to a penitentiary -- typically a higher security facility with more troublesome prisoners -- and placed in its general population. Filing an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619, petitioner sought damages and an injunction barring future confinement in any penitentiary, and alleged that respondents had acted with "deliberate indifference" to petitioner's safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of inmate assaults and that petitioner would be particularly vulnerable to sexual attack. The District Court granted summary judgment to respondents, denying petitioner's motion under Federal Rule of Civil Procedure 56(f) to delay its ruling until respondents complied with a discovery request. It concluded that failure to prevent inmate assaults violates the Eighth Amendment only if prison officials were "reckless in a criminal sense," i. e., had "actual knowledge" of a potential danger, and that respondents lacked such knowledge because petitioner never expressed any safety concerns to them. The Court of Appeals affirmed.
Held:
1. A prison official may be held liable under the Eighth Amendment for acting with "deliberate indifference" to inmate health or safety only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Pp. 832-851.
(a) Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure 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," Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321, and the official has acted with "deliberate indifference" to inmate health or safety. Pp. 832-834.
(b) Deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this does not establish the level of culpability deliberate indifference entails, for the term recklessness is not self-defining, and can take subjective or objective forms. Pp. 835-837.
(c) Subjective recklessness, as used in the criminal law, is the appropriate test for "deliberate indifference." Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court's cases. The Eighth Amendment outlaws cruel and unusual "punishments," not "conditions," and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court's cases. Petitioner's invitation to adopt a purely objective test for determining liability -- whether the risk is known or should have been known -- is rejected. This Court's cases "mandate inquiry into a prison official's state of mind," id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a "subjective component." Pp. 837-840.
(d) The subjective test does not permit liability to be premised on obviousness or constructive notice. Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197, distinguished. However, this does not mean that prison officials will be 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 factfinder may conclude that the official knew of a substantial risk from the very fact that it was obvious. Nor may an official escape liability by showing that he knew of the risk but did not think that the complainant was especially likely to be assaulted by the prisoner who committed the act. It does not matter whether the risk came from a particular source or whether a prisoner faced the risk for reasons personal to him or because all prisoners in his situation faced the risk. But prison officials may not be held liable if they prove that 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. Pp. 840-845.
(e) Use of a subjective test will not foreclose prospective injunctive relief, nor require a prisoner to suffer physical injury before obtaining prospective relief. The subjective test adopted today is consistent with the principle that "one does not have to await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S. 553, 67 L. Ed. 1117, 43 S. Ct. 658. In a suit for prospective relief, the subjective factor, deliberate indifference, "should be determined in light of the prison authorities' current attitudes and conduct," Helling v. McKinney, 509 U.S. 25, 36, 125 L. Ed. 2d 22, 113 S. Ct. 2475: their attitudes and conduct at the time suit is brought and persisting thereafter. In making the requisite showing of subjective culpability, the prisoner may rely on developments that postdate the pleadings and pretrial motions, as prison officials may rely on such developments to show that the prisoner is not entitled to an injunction. A court that finds the Eighth Amendment's objective and subjective requirements satisfied may grant appropriate injunctive relief, though it should approach issuance of injunctions with the usual caution. A court need not ignore a prisoner's failure to take advantage of adequate prison procedures to resolve inmate grievances, and may compel a prisoner to pursue them. Pp. 845-847.
2. On remand, the District Court must reconsider its denial of petitioner's Rule 56(f) discovery motion and apply the Eighth Amendment principles explained herein. The court may have erred in placing decisive weight on petitioner's failure to notify respondents of a danger, and such error may have affected the court's ruling on the discovery motion, so that additional evidence may be available to petitioner. Neither of two of respondents' contentions -- that some of the officials had no knowledge about the confinement conditions and thus were alleged to be liable only for the transfer, and that there is no present threat that petitioner will be placed in a penitentiary -- is so clearly correct as to justify affirmance. Pp. 848-851.
COUNSEL: Elizabeth Alexander argued the cause for petitioner. With her on the briefs were Alvin J. Bronstein, by appointment of the Court, 510 U.S. 941, and Steven R. Shapiro.
Deputy Solicitor General Bender argued the cause for respondents. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Amy L. Wax, Barbara L. Herwig, and Robert M. Loeb. *
* Briefs of amici curiae urging reversal were filed for the Montana Defender Project by Jeffrey T. Renz; for the D. C. Prisoners' Legal Services Project, Inc., by Alan A. Pemberton and Jonathan M. Smith; and for Stop Prisoner Rape by Frank M. Dunbaugh.
J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida, Assistant Attorney General, filed a brief for the State of Maryland et al. as amici curiae urging affirmance, joined by the Attorneys General and other officials for their respective States as follows: Jimmy Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Charles M. Oberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Robert A. Marks, Attorney General of Hawaii, Pamela Carter, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Jay Nixon, Attorney General of Missouri, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Jeffrey R. Howard, Attorney General of New Hampshire, Fred DeVesa, Acting Attorney General of New Jersey, Michael F. Easley, Attorney General of North Carolina, Heidi Heitkamp, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, Theodore R. Kulongoski, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Jan Graham, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Stephen D. Rosenthal, Attorney General of Virginia, James E. Doyle, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming.
JUDGES: SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and GINSBURG, JJ., joined. BLACKMUN, J., post, p. 851, and STEVENS, J., post, p. 858, filed concurring opinions. THOMAS, J., filed an opinion concurring in the judgment, post, p. 858.
OPINION: [*828] [***820] [**1974] JUSTICE SOUTER delivered the opinion of the Court.
[***HR1A] [1A]
HN1 A prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney 509 U.S. 25, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993); Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 [*829] (1976). This case requires us to define the term "deliberate indifference," as we do by requiring a showing that the official was subjectively aware of the risk.
I
The dispute before us stems from a civil suit brought by petitioner, Dee Farmer, alleging that respondents, federal prison officials, violated the Eighth Amendment by their deliberate indifference to petitioner's safety. Petitioner, who is serving a federal [**1975] sentence for credit card fraud, has been diagnosed by medical personnel of the Bureau of Prisons as a transsexual, one who has "[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex," and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change. American Medical Association, Encyclopedia of Medicine 1006 (1989); see also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 74-75 (3d rev. ed. 1987). For several years before being convicted and sentenced in 1986 at the age of 18, petitioner, who is biologically male, wore women's clothing (as petitioner did at the 1986 trial), underwent estrogen therapy, received silicone breast implants, and submitted to unsuccessful "black market" testicle-removal surgery. See Farmer v. Haas, 990 F.2d 319, 320 (CA7 1993). Petitioner's precise appearance in prison is unclear from the record before us, but petitioner claims to have continued hormonal treatment while incarcerated by using drugs smuggled into prison, and apparently wears clothing in a feminine manner, as by displaying a shirt "off one shoulder," App. 112. The parties agree that petitioner "projects feminine characteristics." Id., at 51, 74.
The practice of federal prison authorities is to incarcerate preoperative transsexuals with prisoners of like biological sex, see Farmer v. Haas, supra, at 320, and over time authorities housed petitioner in several federal facilities, sometimes [*830] in the general male prison population but more often in segregation. While there is no dispute that petitioner was segregated at least several times because of violations of prison rules, neither is it disputed that in at least one penitentiary petitioner was segregated because of safety concerns. See Farmer v. Carlson, 685 F. Supp. 1335, 1342 (MD Pa. 1988).
On March 9, 1989, petitioner was transferred for disciplinary reasons from the Federal Correctional Institute in Oxford, Wisconsin (FCI-Oxford), to the United States Penitentiary in Terre Haute, Indiana (USP-Terre Haute). Though the record [***821] before us is unclear about the security designations of the two prisons in 1989, penitentiaries are typically higher security facilities that house more troublesome prisoners than federal correctional institutes. See generally Federal Bureau of Prisons, Facilities 1990. After an initial stay in administrative segregation, petitioner was placed in the USP-Terre Haute general population. Petitioner voiced no objection to any prison official about the transfer to the penitentiary or to placement in its general population. Within two weeks, according to petitioner's allegations, petitioner was beaten and raped by another inmate in petitioner's cell. Several days later, after petitioner claims to have reported the incident, officials returned petitioner to segregation to await, according to respondents, a hearing about petitioner's HIV-positive status.
Acting without counsel, petitioner then filed a Bivens complaint, alleging a violation of the Eighth Amendment. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). As defendants, petitioner named respondents: the warden of USP-Terre Haute and the Director of the Bureau of Prisons (sued only in their official capacities); the warden of FCI-Oxford and a case manager there; and the Director of the Bureau of Prisons North Central Region Office and an official in that office (sued in their official and personal capacities). As later amended, the complaint alleged that respondents either [*831] transferred petitioner to USP-Terre Haute or placed petitioner in its general population despite knowledge that the penitentiary had a violent environment and a history of inmate assaults, and despite knowledge that petitioner, as a transsexual who "projects feminine characteristics," would be particularly vulnerable to sexual attack by some USP-Terre Haute inmates. This allegedly amounted to a deliberately indifferent failure to protect petitioner's safety, and thus to a violation of petitioner's Eighth Amendment rights. Petitioner [**1976] sought compensatory and punitive damages, and an injunction barring future confinement in any penitentiary, including USP-Terre Haute. n1
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n1 Petitioner also sought an order requiring the Bureau of Prisons to place petitioner in a "co-correctional facility" (i. e., one separately housing male and female prisoners but allowing coeducational programming). Petitioner tells us, however, that the Bureau no longer operates such facilities, and petitioner apparently no longer seeks this relief.
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Respondents filed a motion for summary judgment supported by several affidavits, to which petitioner responded with an opposing affidavi
511 U.S. 825; 114 S. Ct. 1970; 128 L. Ed. 2d 811
DEE FARMER, PETITIONER v. EDWARD BRENNAN, WARDEN, ET AL.
No. 92-7247
January 12, 1994, Argued
June 6, 1994, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
DISPOSITION: Vacated and remanded.
SYLLABUS:
Petitioner, a preoperative transsexual who projects feminine characteristics, has been incarcerated with other males in the federal prison system, sometimes in the general prison population but more often in segregation. Petitioner claims to have been beaten and raped by another inmate after being transferred by respondent federal prison officials from a correctional institute to a penitentiary -- typically a higher security facility with more troublesome prisoners -- and placed in its general population. Filing an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619, petitioner sought damages and an injunction barring future confinement in any penitentiary, and alleged that respondents had acted with "deliberate indifference" to petitioner's safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of inmate assaults and that petitioner would be particularly vulnerable to sexual attack. The District Court granted summary judgment to respondents, denying petitioner's motion under Federal Rule of Civil Procedure 56(f) to delay its ruling until respondents complied with a discovery request. It concluded that failure to prevent inmate assaults violates the Eighth Amendment only if prison officials were "reckless in a criminal sense," i. e., had "actual knowledge" of a potential danger, and that respondents lacked such knowledge because petitioner never expressed any safety concerns to them. The Court of Appeals affirmed.
Held:
1. A prison official may be held liable under the Eighth Amendment for acting with "deliberate indifference" to inmate health or safety only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Pp. 832-851.
(a) Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure 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," Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321, and the official has acted with "deliberate indifference" to inmate health or safety. Pp. 832-834.
(b) Deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this does not establish the level of culpability deliberate indifference entails, for the term recklessness is not self-defining, and can take subjective or objective forms. Pp. 835-837.
(c) Subjective recklessness, as used in the criminal law, is the appropriate test for "deliberate indifference." Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court's cases. The Eighth Amendment outlaws cruel and unusual "punishments," not "conditions," and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court's cases. Petitioner's invitation to adopt a purely objective test for determining liability -- whether the risk is known or should have been known -- is rejected. This Court's cases "mandate inquiry into a prison official's state of mind," id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a "subjective component." Pp. 837-840.
(d) The subjective test does not permit liability to be premised on obviousness or constructive notice. Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197, distinguished. However, this does not mean that prison officials will be 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 factfinder may conclude that the official knew of a substantial risk from the very fact that it was obvious. Nor may an official escape liability by showing that he knew of the risk but did not think that the complainant was especially likely to be assaulted by the prisoner who committed the act. It does not matter whether the risk came from a particular source or whether a prisoner faced the risk for reasons personal to him or because all prisoners in his situation faced the risk. But prison officials may not be held liable if they prove that 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. Pp. 840-845.
(e) Use of a subjective test will not foreclose prospective injunctive relief, nor require a prisoner to suffer physical injury before obtaining prospective relief. The subjective test adopted today is consistent with the principle that "one does not have to await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S. 553, 67 L. Ed. 1117, 43 S. Ct. 658. In a suit for prospective relief, the subjective factor, deliberate indifference, "should be determined in light of the prison authorities' current attitudes and conduct," Helling v. McKinney, 509 U.S. 25, 36, 125 L. Ed. 2d 22, 113 S. Ct. 2475: their attitudes and conduct at the time suit is brought and persisting thereafter. In making the requisite showing of subjective culpability, the prisoner may rely on developments that postdate the pleadings and pretrial motions, as prison officials may rely on such developments to show that the prisoner is not entitled to an injunction. A court that finds the Eighth Amendment's objective and subjective requirements satisfied may grant appropriate injunctive relief, though it should approach issuance of injunctions with the usual caution. A court need not ignore a prisoner's failure to take advantage of adequate prison procedures to resolve inmate grievances, and may compel a prisoner to pursue them. Pp. 845-847.
2. On remand, the District Court must reconsider its denial of petitioner's Rule 56(f) discovery motion and apply the Eighth Amendment principles explained herein. The court may have erred in placing decisive weight on petitioner's failure to notify respondents of a danger, and such error may have affected the court's ruling on the discovery motion, so that additional evidence may be available to petitioner. Neither of two of respondents' contentions -- that some of the officials had no knowledge about the confinement conditions and thus were alleged to be liable only for the transfer, and that there is no present threat that petitioner will be placed in a penitentiary -- is so clearly correct as to justify affirmance. Pp. 848-851.
COUNSEL: Elizabeth Alexander argued the cause for petitioner. With her on the briefs were Alvin J. Bronstein, by appointment of the Court, 510 U.S. 941, and Steven R. Shapiro.
Deputy Solicitor General Bender argued the cause for respondents. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Amy L. Wax, Barbara L. Herwig, and Robert M. Loeb. *
* Briefs of amici curiae urging reversal were filed for the Montana Defender Project by Jeffrey T. Renz; for the D. C. Prisoners' Legal Services Project, Inc., by Alan A. Pemberton and Jonathan M. Smith; and for Stop Prisoner Rape by Frank M. Dunbaugh.
J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida, Assistant Attorney General, filed a brief for the State of Maryland et al. as amici curiae urging affirmance, joined by the Attorneys General and other officials for their respective States as follows: Jimmy Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Charles M. Oberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Robert A. Marks, Attorney General of Hawaii, Pamela Carter, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Jay Nixon, Attorney General of Missouri, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Jeffrey R. Howard, Attorney General of New Hampshire, Fred DeVesa, Acting Attorney General of New Jersey, Michael F. Easley, Attorney General of North Carolina, Heidi Heitkamp, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, Theodore R. Kulongoski, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Jan Graham, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Stephen D. Rosenthal, Attorney General of Virginia, James E. Doyle, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming.
JUDGES: SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and GINSBURG, JJ., joined. BLACKMUN, J., post, p. 851, and STEVENS, J., post, p. 858, filed concurring opinions. THOMAS, J., filed an opinion concurring in the judgment, post, p. 858.
OPINION: [*828] [***820] [**1974] JUSTICE SOUTER delivered the opinion of the Court.
[***HR1A] [1A]
HN1 A prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney 509 U.S. 25, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993); Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 [*829] (1976). This case requires us to define the term "deliberate indifference," as we do by requiring a showing that the official was subjectively aware of the risk.
I
The dispute before us stems from a civil suit brought by petitioner, Dee Farmer, alleging that respondents, federal prison officials, violated the Eighth Amendment by their deliberate indifference to petitioner's safety. Petitioner, who is serving a federal [**1975] sentence for credit card fraud, has been diagnosed by medical personnel of the Bureau of Prisons as a transsexual, one who has "[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex," and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change. American Medical Association, Encyclopedia of Medicine 1006 (1989); see also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 74-75 (3d rev. ed. 1987). For several years before being convicted and sentenced in 1986 at the age of 18, petitioner, who is biologically male, wore women's clothing (as petitioner did at the 1986 trial), underwent estrogen therapy, received silicone breast implants, and submitted to unsuccessful "black market" testicle-removal surgery. See Farmer v. Haas, 990 F.2d 319, 320 (CA7 1993). Petitioner's precise appearance in prison is unclear from the record before us, but petitioner claims to have continued hormonal treatment while incarcerated by using drugs smuggled into prison, and apparently wears clothing in a feminine manner, as by displaying a shirt "off one shoulder," App. 112. The parties agree that petitioner "projects feminine characteristics." Id., at 51, 74.
The practice of federal prison authorities is to incarcerate preoperative transsexuals with prisoners of like biological sex, see Farmer v. Haas, supra, at 320, and over time authorities housed petitioner in several federal facilities, sometimes [*830] in the general male prison population but more often in segregation. While there is no dispute that petitioner was segregated at least several times because of violations of prison rules, neither is it disputed that in at least one penitentiary petitioner was segregated because of safety concerns. See Farmer v. Carlson, 685 F. Supp. 1335, 1342 (MD Pa. 1988).
On March 9, 1989, petitioner was transferred for disciplinary reasons from the Federal Correctional Institute in Oxford, Wisconsin (FCI-Oxford), to the United States Penitentiary in Terre Haute, Indiana (USP-Terre Haute). Though the record [***821] before us is unclear about the security designations of the two prisons in 1989, penitentiaries are typically higher security facilities that house more troublesome prisoners than federal correctional institutes. See generally Federal Bureau of Prisons, Facilities 1990. After an initial stay in administrative segregation, petitioner was placed in the USP-Terre Haute general population. Petitioner voiced no objection to any prison official about the transfer to the penitentiary or to placement in its general population. Within two weeks, according to petitioner's allegations, petitioner was beaten and raped by another inmate in petitioner's cell. Several days later, after petitioner claims to have reported the incident, officials returned petitioner to segregation to await, according to respondents, a hearing about petitioner's HIV-positive status.
Acting without counsel, petitioner then filed a Bivens complaint, alleging a violation of the Eighth Amendment. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). As defendants, petitioner named respondents: the warden of USP-Terre Haute and the Director of the Bureau of Prisons (sued only in their official capacities); the warden of FCI-Oxford and a case manager there; and the Director of the Bureau of Prisons North Central Region Office and an official in that office (sued in their official and personal capacities). As later amended, the complaint alleged that respondents either [*831] transferred petitioner to USP-Terre Haute or placed petitioner in its general population despite knowledge that the penitentiary had a violent environment and a history of inmate assaults, and despite knowledge that petitioner, as a transsexual who "projects feminine characteristics," would be particularly vulnerable to sexual attack by some USP-Terre Haute inmates. This allegedly amounted to a deliberately indifferent failure to protect petitioner's safety, and thus to a violation of petitioner's Eighth Amendment rights. Petitioner [**1976] sought compensatory and punitive damages, and an injunction barring future confinement in any penitentiary, including USP-Terre Haute. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Petitioner also sought an order requiring the Bureau of Prisons to place petitioner in a "co-correctional facility" (i. e., one separately housing male and female prisoners but allowing coeducational programming). Petitioner tells us, however, that the Bureau no longer operates such facilities, and petitioner apparently no longer seeks this relief.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Respondents filed a motion for summary judgment supported by several affidavits, to which petitioner responded with an opposing affidavi
Harris v. Thigpen
| Year | 1991 |
|---|---|
| Cite | 941 F.3d 1495 (11th Cir. 1991) |
| Appeals Court Edition | F.3d |
United States Court of Appeals,
For the Eleventh Circuit.
Carmen Jean HARRIS and Leslie John Pettway, Plaintiffs-Appellants,
James Hollifield, et al., Plaintiffs,
v.
Morris THIGPEN, Commissioner of the DOC, Jean W. Hare, Warden, J.D. White,
(Warden-Limestone), Lynn Harrelson, (Warden-Kilby), Correctional Health Care,
Inc., Dr. George Sutton, Ala. Medical Director (CHC), Brice R. Paul, Sheriff of
Coffee County, Alabama, Coffee County, Alabama and Fred Payne, Defendants-
Appellees,
Georgia Rudolph, et al., Defendants,
Stewart M. Hughey, etc., et al., Defendants-Intervenors,
Alabama Department of Corrections, its agents and employees, Defendant-
Intervenor-Appellee.
Carmen Jean HARRIS and Leslie John Pettway, Plaintiffs-Appellees,
James Hollifield, et al., Plaintiffs,
v.
Morris THIGPEN, Commissioner of DOC, Jean Hare, Warden, J.D. White, (Warden-
Limestone), Lynn Harrelson, (Warden-Kilby), Correctional Health Care, Inc., Dr.
George Sutton, Ala. Medical Director (CHC), Brice R. Paul, Sheriff of Coffee
County, Alabama, Coffee County, Alabama and Fred Payne, Defendants-Appellants,
Georgia Rudolph, et al., Defendants,
Stewart M. Hughey, AIS # 131035, Adam Lamar Robinson, Chuck Stoudemire, AIS
# 153319, Alabama Department of Corrections, its agents and employees,
Defendants-Intervenors-Appellants.
Nos. 90-7083, 90-7100.
Sept. 18, 1991.
Inmates who had tested positive for Human Immunodeficiency Virus (HIV) brought civil rights action challenging various policies and procedures of Alabama Department of Corrections (DOC). Non-HIV general population inmates intervened as defendants and case was consolidated with similar actions pending in various federal courts. The United States District Court for the Middle District of Alabama, No. 87-V-1109-N, Robert E. Varner, J., 727 F.Supp. 1564, denied relief, and inmates appealed. The Court of Appeals, Fay, Circuit Judge, held that: (1) DOC was not deliberately indifferent to inmate's medical or psychiatric needs; (2) DOC's blanket policy of isolating HIV-positive inmates from general prison population, resulting in disclosure of HIV status, did not violate any constitutionally protected privacy rights of inmates; and (3) more complete findings of fact and conclusions of law were necessary for proper resolution of Rehabilitation Act and access to courts claims.
Affirmed in part, and vacated and remanded in part.
Alexa P. Freeman, Elizabeth Alexander, ACLU Nat. Prison Project, Washington D.C., Howard Mandell, Mandell & Boyd, Montgomery, Ala., Nancy Ortega, Stephen B. Bright, Southern Prisoners' Defense Committee, Atlanta, Ga., for plaintiffs-appellants in no. 90-7083.
Harry A. Lyles, Horace N. Lynn, Andrew Redd, Alice B. Wilhelm, Alabama Dept. of Corrections, Scott R. Talkington, David B. Byrne, Jr., Robinson & Belser, P.A., Jack M. Curtis, Dept. of Public Safety Legal Unit, Montgomery, Ala., Geary A. Gaston, Reams, Vollmer, Philips, Killion, Brooks & Schell, PC, Mobile, Ala., Daryl L. Masters, Webb, Crumpton, McGregor, Davis & Alley, Montgomery, Ala., Dorothy F. Norwood, Correctional Health Care, Inc., Mt. Meigs, Ala., for defendants-appellees in no. 90-7083.
Neil King, Wilmer, Cutley & Pickering, Washington, D.C., for amicus, Aids Action Counsel.
Harry A. Lyles, Horace N. Lynn, Andrew W. Redd, Alice Ann Boswell, Alabama Dept. of Corrections, David B. Byrne, Jr., Robison & Belser, P.A., Scott R. Talkington, Montgomery, Ala., for defendants-appellants in No. 90-7100.
Alexa P. Freeman, ACLU Nat. Prison Project, Elizabeth Alexander, Alvin J. Bronstein, Washington, D.C., Nancy Ortega, Steve Bright, Southern Prisoners' Defense Committee, Atlanta, Ga., Dorothy F. Norwood, Kilby Correctional Facility, Mt. Meigs, Ala., Geary A. Gaston, Reams, Vollmer, Philips, Killion, Brooks & Schell, PC, Mobile, Ala., Howard A. Mandell, Mandell & Boyd, Montgomery, Ala., for plaintiff-appellees in No. 90-7083.
Appeal from the United States District Court for the Middle District of Alabama.
Before FAY and BIRCH, Circuit Judges, and HOFFMAN [FN*], Senior District Judge.
FN* Honorable Walter E. Hoffman, Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation.
FAY, Circuit Judge:
Plaintiffs-appellants appeal the post-trial dismissal of their class action civil rights challenge to various policies and procedures of defendant- appellee, the Alabama Department of Corrections ("DOC"). The appellants raise four issues involving the DOC's policy of uniformly segregating from the general prison population those prisoners who test positive for exposure to Human Immunodeficiency Virus ("HIV"), the virus commonly believed to be the cause of Acquired Immune Deficiency Syndrome ("AIDS").
For the following reasons, we AFFIRM the district court's conclusions as to appellants' eighth amendment claim of "deliberately indifferent" medical care by the DOC, as well as to the alleged violation by the DOC of appellants' fourteenth amendment privacy rights. We believe, however, that more complete findings of fact and conclusions of law are necessary for a proper resolution of appellants' Rehabilitation Act and access to courts claims. We therefore VACATE and REMAND those issues to the district court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND.
This case involves a range of difficult AIDS-related issues that confront all correctional officials, administrators, policymakers and inmates as they attempt to grapple with the problems engendered by the presence of HIV infection in our nation's prisons and jails. [FN1]
FN1. A recent National Institute of Justice update remarked:
Prisons and jails are squarely in the public eye as they attempt to deal with the difficult issues posed by AIDS. Correctional administrators must address many of the same issues faced by public health and other government officials beyond the walls--education, testing, confidentiality, infection control--as well as others not as central to the response on the outside-- segregated housing, rape, and other violent victimization.
T. Hammett, Update 1988: Aids in Correctional Facilities 1, National Inst. of Justice: Issues and Practices (Jan.1989) (Pl.Exh. 376) [hereinafter Update 1988 ].
The genesis of the litigation underlying this appeal was the Alabama Legislature's passage in 1987 of a statute that provides, among other things, that all persons sentenced to confinement in an Alabama state correctional facility must be tested for various sexually transmitted diseases designated by the state board of health. [FN2] Shortly thereafter, defendant-appellee DOC instituted a procedure for implementing this statute. Consequently, all inmates entering an Alabama state correctional facility are tested for sexually transmitted diseases at the time of their admission to the facility in question, and are tested again within thirty days of their release from the prison system.
FN2. Ala.Code § 22-11A-17(a) (1990) provides in pertinent part:
(a) All persons sentenced to confinement or imprisonment in any city or county jail or any state correctional facility for 30 or more consecutive days shall be tested for those sexually transmitted diseases designated by the state board of health, upon entering the facility, and any inmate so confined for more than 90 days shall be examined for those sexually transmitted diseases 30 days before release. The results of any positive or reactive tests shall be reported as provided....
One of the sexually transmitted diseases for which the DOC is required to test is HIV, virtually certain to be the causative agent of AIDS. The DOC initially administers to each prisoner an enzyme-linked immunosorbant assay ("ELISA"), a standard screening test designed to detect the presence of HIV antibodies. If an inmate exhibits a negative ELISA, and if other tests for sexually transmitted diseases prove negative as well, then the inmate is immediately released into the general prison population.
If, however, an inmate exhibits a positive ELISA, he or she is then administered a second ELISA to again test for the presence of the HIV antibody. If the second ELISA is also positive, the inmate is administered a third, confirmatory test known as the "Western Blot"; like the ELISA, this test is also aimed at detecting the presence of the HIV antibody. [FN3]
FN3. As mentioned, the ELISA and Western Blot tests are not tests for AIDS, nor do they detect the presence of the HIV virus itself. Rather, the tests reveal the presence in the blood of antibodies to the virus, which evidence the immune system's attempt to fight off infection. The ELISA test was originally developed to screen the nation's blood supply, and was very effective for that purpose. As the Alabama system's policy reveals, however, antibody tests such as the ELISA have in recent years been used to screen people. In this regard, because the ELISA test may produce a significant number of false positives, the Center for Disease Control ("CDC") strongly recommends that initially positive specimens be subjected to a second ELISA test, and that a more accurate test, such as the Western Blot, be used to confirm the ELISA result. See T. Hammett, Aids in Correctional Facilities 4, National Inst. of Justice: Issues and Practices (3d ed. Apr.1988) (Def.Exh. 511) [hereinafter Correctional Facilities ]. When this sequence of tests is used, the tests have proven extremely accurate, with very few false positives. " '[W]hen performed under well controlled conditions in good laboratories, [the current sequence of tests] yield[s] both a sensitivity and specificity of greater than 99.8 percent.' " Virgin Islands v. Roberts, 756 F.Supp. 898, 900 (D.V.I.1991) (quoting Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic 2 (June 1988)).
Nevertheless, there is a continuing debate over the reliability of the tests, particularly when used to mass screen in the correctional setting. Because of the apparent lag time, which is usually 6-12 weeks, between HIV infection and the appearance of detectable antibodies, there is a "window period" during which an infected person would nevertheless test negative, yielding a so-called "false negative." This means that "it is impossible to guarantee detection of all infected members of a population through one- time screening." Correctional Facilities, supra, at 61.
If a particular inmate tests positive for the separate ELISA tests and the confirmatory Western Blot test, the inmate is assigned to one of two segregated HIV wards established by the DOC. Male seropositive [FN4] inmates are assigned to Dormitory 7 at the Limestone Correctional Facility ("Limestone") in Capshaw, Alabama. [FN5] Female seropositive inmates are housed in a separate HIV unit at Julia Tutwiler Prison for Women ("Tutwiler") in Wetumpka, Alabama.
FN4. HIV "seropositivity" simply means that a person possesses HIV antibodies, which indicates that HIV infection has occurred at some time in the past. Although antibody tests such as the ELISA cannot pinpoint the date of infection, the CDC's present position is that, for purposes of counseling and public health recommendations, any seropositive person should be considered HIV-infected and potentially infectious. "[T]he view commonly presented in articles regarding AIDS (as well as in some correctional departments' educational material and policy statements) that HIV seropositivity merely indicates possible 'exposure' to the virus is considered by many physicians and epidemiologists to be a serious misunderstanding." Correctional Facilities, supra note 3, at 6. Seropositivity is a serious problem, because the potentially indefinite incubation period of AIDS renders it virtually impossible for a seropositive person "to know for certain that he or she is free from risk of becoming ill or infecting others." Id. Nevertheless, "[e]vidence continues to accumulate that virtually everyone infected with the virus will, sooner or later, progress to active disease." Update 1988, supra note 1, at 5.
FN5. A small number of HIV seropositive male inmates with security classifications of close, maximum or protective are kept in cells at Limestone.
On November 17, 1987, Carmen Harris, an inmate at Tutwiler, filed a complaint challenging the DOC's actions in testing her for HIV antibodies, and in segregating her in a separate unit when her test results were reported as positive. On March 4, 1988, Ms. Harris and other prisoners filed a motion for class certification. Thereafter, inmates Stewart Hughey and Adam Robinson, two non-HIV general population inmates incarcerated at Limestone, filed a motion to intervene as defendants under Fed.R.Civ.P. 24. The trial court subsequently consolidated the case with a number of similar actions pending in various federal courts in Alabama requesting similar injunctive relief, and certified two classes: the plaintiff class, consisting of all inmates or future inmates of the DOC, except those inmates who had indicated an intention to intervene on behalf of the defendants; another class consisting of intervenor-inmates opposing the relief sought by the plaintiffs.
As the trial court observed, plaintiffs' suit essentially challenged the mandatory testing of all present or future Alabama state prisoners for HIV antibodies, as well as the policy of forced segregation and other practices associated with the Alabama system's care for and treatment of seropositive inmates. [FN6] Plaintiffs claimed that such practices violated their rights guaranteed under the first, fourth, eighth, and fourteenth amendments to the United States Constitution, as well as section 504 of the Rehabilitation Act of 1973 (codified as amended at 29 U.S.C. § 701 (1988)).
FN6. Specifically, as the trial court found, plaintiffs argued that the DOC had violated various constitutional and federal rights of the inmates by allegedly engaging in the following practices: 1) requiring all prisoners to submit involuntarily to blood tests upon entrance into and exit from Alabama penal institutions; 2) failing to advise prisoners as to the inconclusive and sometimes misleading significance of the results; 3) failing to provide essential emotional support and mental health counseling to those prisoners who test positive; 4) compelling seropositive prisoners to live in segregated units (like "leper colonies") with all other prisoners who have tested positive for HIV; 5) publically branding the inmates, through the fact of their segregation, as carriers of a dread, socially unacceptable and fatal disease; 6) causing the infected inmates to lose the opportunity to participate in vocational and educational programs, to earn good time credits, and to participate in work release and similar programs, thus limiting the prisoners' opportunities for early release and parole; and 7) providing the inmates with grossly deficient medical, mental health, and dental care. Harris v. Thigpen, 727 F.Supp. 1564, 1566 (M.D.Ala.1990).
The first phase of the case was tried from March 27 to March 30, 1989, in Decatur, Alabama. [FN7] The second phase of the trial took place from June 12 to June 26, 1989, in Montgomery, Alabama. On January 8, 1990, the district court issued an opinion rejecting the claims of the plaintiff class. In denying injunctive relief, the court concluded:
FN7. At the time of trial, named defendants to the action were as follows: 1) Morris Thigpen, Commissioner of the DOC, responsible for the DOC's control, as well as the enforcement of rules concerning the testing and segregation of inmates; 2) Jean Hare, the Warden of Tutwiler, charged with administering the HIV segregation unit there; 3) J.D. White, the Warden of Limestone, charged with the administration of the HIV segregation unit at Limestone; Lynn Harrelson, Warden of the Kilby Prison in Mt. Meigs, Alabama, charged with implementing the HIV testing program at Kilby; Correctional Health Care, Inc. ("CHC"), an entity under contract with the DOC to provide medical care services to Alabama state prisoners; and Dr. George Sutton, Medical Director for CHC. Harris, 727 F.Supp. at 1566. Prior to the trial's comme
For the Eleventh Circuit.
Carmen Jean HARRIS and Leslie John Pettway, Plaintiffs-Appellants,
James Hollifield, et al., Plaintiffs,
v.
Morris THIGPEN, Commissioner of the DOC, Jean W. Hare, Warden, J.D. White,
(Warden-Limestone), Lynn Harrelson, (Warden-Kilby), Correctional Health Care,
Inc., Dr. George Sutton, Ala. Medical Director (CHC), Brice R. Paul, Sheriff of
Coffee County, Alabama, Coffee County, Alabama and Fred Payne, Defendants-
Appellees,
Georgia Rudolph, et al., Defendants,
Stewart M. Hughey, etc., et al., Defendants-Intervenors,
Alabama Department of Corrections, its agents and employees, Defendant-
Intervenor-Appellee.
Carmen Jean HARRIS and Leslie John Pettway, Plaintiffs-Appellees,
James Hollifield, et al., Plaintiffs,
v.
Morris THIGPEN, Commissioner of DOC, Jean Hare, Warden, J.D. White, (Warden-
Limestone), Lynn Harrelson, (Warden-Kilby), Correctional Health Care, Inc., Dr.
George Sutton, Ala. Medical Director (CHC), Brice R. Paul, Sheriff of Coffee
County, Alabama, Coffee County, Alabama and Fred Payne, Defendants-Appellants,
Georgia Rudolph, et al., Defendants,
Stewart M. Hughey, AIS # 131035, Adam Lamar Robinson, Chuck Stoudemire, AIS
# 153319, Alabama Department of Corrections, its agents and employees,
Defendants-Intervenors-Appellants.
Nos. 90-7083, 90-7100.
Sept. 18, 1991.
Inmates who had tested positive for Human Immunodeficiency Virus (HIV) brought civil rights action challenging various policies and procedures of Alabama Department of Corrections (DOC). Non-HIV general population inmates intervened as defendants and case was consolidated with similar actions pending in various federal courts. The United States District Court for the Middle District of Alabama, No. 87-V-1109-N, Robert E. Varner, J., 727 F.Supp. 1564, denied relief, and inmates appealed. The Court of Appeals, Fay, Circuit Judge, held that: (1) DOC was not deliberately indifferent to inmate's medical or psychiatric needs; (2) DOC's blanket policy of isolating HIV-positive inmates from general prison population, resulting in disclosure of HIV status, did not violate any constitutionally protected privacy rights of inmates; and (3) more complete findings of fact and conclusions of law were necessary for proper resolution of Rehabilitation Act and access to courts claims.
Affirmed in part, and vacated and remanded in part.
Alexa P. Freeman, Elizabeth Alexander, ACLU Nat. Prison Project, Washington D.C., Howard Mandell, Mandell & Boyd, Montgomery, Ala., Nancy Ortega, Stephen B. Bright, Southern Prisoners' Defense Committee, Atlanta, Ga., for plaintiffs-appellants in no. 90-7083.
Harry A. Lyles, Horace N. Lynn, Andrew Redd, Alice B. Wilhelm, Alabama Dept. of Corrections, Scott R. Talkington, David B. Byrne, Jr., Robinson & Belser, P.A., Jack M. Curtis, Dept. of Public Safety Legal Unit, Montgomery, Ala., Geary A. Gaston, Reams, Vollmer, Philips, Killion, Brooks & Schell, PC, Mobile, Ala., Daryl L. Masters, Webb, Crumpton, McGregor, Davis & Alley, Montgomery, Ala., Dorothy F. Norwood, Correctional Health Care, Inc., Mt. Meigs, Ala., for defendants-appellees in no. 90-7083.
Neil King, Wilmer, Cutley & Pickering, Washington, D.C., for amicus, Aids Action Counsel.
Harry A. Lyles, Horace N. Lynn, Andrew W. Redd, Alice Ann Boswell, Alabama Dept. of Corrections, David B. Byrne, Jr., Robison & Belser, P.A., Scott R. Talkington, Montgomery, Ala., for defendants-appellants in No. 90-7100.
Alexa P. Freeman, ACLU Nat. Prison Project, Elizabeth Alexander, Alvin J. Bronstein, Washington, D.C., Nancy Ortega, Steve Bright, Southern Prisoners' Defense Committee, Atlanta, Ga., Dorothy F. Norwood, Kilby Correctional Facility, Mt. Meigs, Ala., Geary A. Gaston, Reams, Vollmer, Philips, Killion, Brooks & Schell, PC, Mobile, Ala., Howard A. Mandell, Mandell & Boyd, Montgomery, Ala., for plaintiff-appellees in No. 90-7083.
Appeal from the United States District Court for the Middle District of Alabama.
Before FAY and BIRCH, Circuit Judges, and HOFFMAN [FN*], Senior District Judge.
FN* Honorable Walter E. Hoffman, Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation.
FAY, Circuit Judge:
Plaintiffs-appellants appeal the post-trial dismissal of their class action civil rights challenge to various policies and procedures of defendant- appellee, the Alabama Department of Corrections ("DOC"). The appellants raise four issues involving the DOC's policy of uniformly segregating from the general prison population those prisoners who test positive for exposure to Human Immunodeficiency Virus ("HIV"), the virus commonly believed to be the cause of Acquired Immune Deficiency Syndrome ("AIDS").
For the following reasons, we AFFIRM the district court's conclusions as to appellants' eighth amendment claim of "deliberately indifferent" medical care by the DOC, as well as to the alleged violation by the DOC of appellants' fourteenth amendment privacy rights. We believe, however, that more complete findings of fact and conclusions of law are necessary for a proper resolution of appellants' Rehabilitation Act and access to courts claims. We therefore VACATE and REMAND those issues to the district court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND.
This case involves a range of difficult AIDS-related issues that confront all correctional officials, administrators, policymakers and inmates as they attempt to grapple with the problems engendered by the presence of HIV infection in our nation's prisons and jails. [FN1]
FN1. A recent National Institute of Justice update remarked:
Prisons and jails are squarely in the public eye as they attempt to deal with the difficult issues posed by AIDS. Correctional administrators must address many of the same issues faced by public health and other government officials beyond the walls--education, testing, confidentiality, infection control--as well as others not as central to the response on the outside-- segregated housing, rape, and other violent victimization.
T. Hammett, Update 1988: Aids in Correctional Facilities 1, National Inst. of Justice: Issues and Practices (Jan.1989) (Pl.Exh. 376) [hereinafter Update 1988 ].
The genesis of the litigation underlying this appeal was the Alabama Legislature's passage in 1987 of a statute that provides, among other things, that all persons sentenced to confinement in an Alabama state correctional facility must be tested for various sexually transmitted diseases designated by the state board of health. [FN2] Shortly thereafter, defendant-appellee DOC instituted a procedure for implementing this statute. Consequently, all inmates entering an Alabama state correctional facility are tested for sexually transmitted diseases at the time of their admission to the facility in question, and are tested again within thirty days of their release from the prison system.
FN2. Ala.Code § 22-11A-17(a) (1990) provides in pertinent part:
(a) All persons sentenced to confinement or imprisonment in any city or county jail or any state correctional facility for 30 or more consecutive days shall be tested for those sexually transmitted diseases designated by the state board of health, upon entering the facility, and any inmate so confined for more than 90 days shall be examined for those sexually transmitted diseases 30 days before release. The results of any positive or reactive tests shall be reported as provided....
One of the sexually transmitted diseases for which the DOC is required to test is HIV, virtually certain to be the causative agent of AIDS. The DOC initially administers to each prisoner an enzyme-linked immunosorbant assay ("ELISA"), a standard screening test designed to detect the presence of HIV antibodies. If an inmate exhibits a negative ELISA, and if other tests for sexually transmitted diseases prove negative as well, then the inmate is immediately released into the general prison population.
If, however, an inmate exhibits a positive ELISA, he or she is then administered a second ELISA to again test for the presence of the HIV antibody. If the second ELISA is also positive, the inmate is administered a third, confirmatory test known as the "Western Blot"; like the ELISA, this test is also aimed at detecting the presence of the HIV antibody. [FN3]
FN3. As mentioned, the ELISA and Western Blot tests are not tests for AIDS, nor do they detect the presence of the HIV virus itself. Rather, the tests reveal the presence in the blood of antibodies to the virus, which evidence the immune system's attempt to fight off infection. The ELISA test was originally developed to screen the nation's blood supply, and was very effective for that purpose. As the Alabama system's policy reveals, however, antibody tests such as the ELISA have in recent years been used to screen people. In this regard, because the ELISA test may produce a significant number of false positives, the Center for Disease Control ("CDC") strongly recommends that initially positive specimens be subjected to a second ELISA test, and that a more accurate test, such as the Western Blot, be used to confirm the ELISA result. See T. Hammett, Aids in Correctional Facilities 4, National Inst. of Justice: Issues and Practices (3d ed. Apr.1988) (Def.Exh. 511) [hereinafter Correctional Facilities ]. When this sequence of tests is used, the tests have proven extremely accurate, with very few false positives. " '[W]hen performed under well controlled conditions in good laboratories, [the current sequence of tests] yield[s] both a sensitivity and specificity of greater than 99.8 percent.' " Virgin Islands v. Roberts, 756 F.Supp. 898, 900 (D.V.I.1991) (quoting Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic 2 (June 1988)).
Nevertheless, there is a continuing debate over the reliability of the tests, particularly when used to mass screen in the correctional setting. Because of the apparent lag time, which is usually 6-12 weeks, between HIV infection and the appearance of detectable antibodies, there is a "window period" during which an infected person would nevertheless test negative, yielding a so-called "false negative." This means that "it is impossible to guarantee detection of all infected members of a population through one- time screening." Correctional Facilities, supra, at 61.
If a particular inmate tests positive for the separate ELISA tests and the confirmatory Western Blot test, the inmate is assigned to one of two segregated HIV wards established by the DOC. Male seropositive [FN4] inmates are assigned to Dormitory 7 at the Limestone Correctional Facility ("Limestone") in Capshaw, Alabama. [FN5] Female seropositive inmates are housed in a separate HIV unit at Julia Tutwiler Prison for Women ("Tutwiler") in Wetumpka, Alabama.
FN4. HIV "seropositivity" simply means that a person possesses HIV antibodies, which indicates that HIV infection has occurred at some time in the past. Although antibody tests such as the ELISA cannot pinpoint the date of infection, the CDC's present position is that, for purposes of counseling and public health recommendations, any seropositive person should be considered HIV-infected and potentially infectious. "[T]he view commonly presented in articles regarding AIDS (as well as in some correctional departments' educational material and policy statements) that HIV seropositivity merely indicates possible 'exposure' to the virus is considered by many physicians and epidemiologists to be a serious misunderstanding." Correctional Facilities, supra note 3, at 6. Seropositivity is a serious problem, because the potentially indefinite incubation period of AIDS renders it virtually impossible for a seropositive person "to know for certain that he or she is free from risk of becoming ill or infecting others." Id. Nevertheless, "[e]vidence continues to accumulate that virtually everyone infected with the virus will, sooner or later, progress to active disease." Update 1988, supra note 1, at 5.
FN5. A small number of HIV seropositive male inmates with security classifications of close, maximum or protective are kept in cells at Limestone.
On November 17, 1987, Carmen Harris, an inmate at Tutwiler, filed a complaint challenging the DOC's actions in testing her for HIV antibodies, and in segregating her in a separate unit when her test results were reported as positive. On March 4, 1988, Ms. Harris and other prisoners filed a motion for class certification. Thereafter, inmates Stewart Hughey and Adam Robinson, two non-HIV general population inmates incarcerated at Limestone, filed a motion to intervene as defendants under Fed.R.Civ.P. 24. The trial court subsequently consolidated the case with a number of similar actions pending in various federal courts in Alabama requesting similar injunctive relief, and certified two classes: the plaintiff class, consisting of all inmates or future inmates of the DOC, except those inmates who had indicated an intention to intervene on behalf of the defendants; another class consisting of intervenor-inmates opposing the relief sought by the plaintiffs.
As the trial court observed, plaintiffs' suit essentially challenged the mandatory testing of all present or future Alabama state prisoners for HIV antibodies, as well as the policy of forced segregation and other practices associated with the Alabama system's care for and treatment of seropositive inmates. [FN6] Plaintiffs claimed that such practices violated their rights guaranteed under the first, fourth, eighth, and fourteenth amendments to the United States Constitution, as well as section 504 of the Rehabilitation Act of 1973 (codified as amended at 29 U.S.C. § 701 (1988)).
FN6. Specifically, as the trial court found, plaintiffs argued that the DOC had violated various constitutional and federal rights of the inmates by allegedly engaging in the following practices: 1) requiring all prisoners to submit involuntarily to blood tests upon entrance into and exit from Alabama penal institutions; 2) failing to advise prisoners as to the inconclusive and sometimes misleading significance of the results; 3) failing to provide essential emotional support and mental health counseling to those prisoners who test positive; 4) compelling seropositive prisoners to live in segregated units (like "leper colonies") with all other prisoners who have tested positive for HIV; 5) publically branding the inmates, through the fact of their segregation, as carriers of a dread, socially unacceptable and fatal disease; 6) causing the infected inmates to lose the opportunity to participate in vocational and educational programs, to earn good time credits, and to participate in work release and similar programs, thus limiting the prisoners' opportunities for early release and parole; and 7) providing the inmates with grossly deficient medical, mental health, and dental care. Harris v. Thigpen, 727 F.Supp. 1564, 1566 (M.D.Ala.1990).
The first phase of the case was tried from March 27 to March 30, 1989, in Decatur, Alabama. [FN7] The second phase of the trial took place from June 12 to June 26, 1989, in Montgomery, Alabama. On January 8, 1990, the district court issued an opinion rejecting the claims of the plaintiff class. In denying injunctive relief, the court concluded:
FN7. At the time of trial, named defendants to the action were as follows: 1) Morris Thigpen, Commissioner of the DOC, responsible for the DOC's control, as well as the enforcement of rules concerning the testing and segregation of inmates; 2) Jean Hare, the Warden of Tutwiler, charged with administering the HIV segregation unit there; 3) J.D. White, the Warden of Limestone, charged with the administration of the HIV segregation unit at Limestone; Lynn Harrelson, Warden of the Kilby Prison in Mt. Meigs, Alabama, charged with implementing the HIV testing program at Kilby; Correctional Health Care, Inc. ("CHC"), an entity under contract with the DOC to provide medical care services to Alabama state prisoners; and Dr. George Sutton, Medical Director for CHC. Harris, 727 F.Supp. at 1566. Prior to the trial's comme
Whitley v. Albers
| Year | 1986 |
|---|---|
| Cite | 475 U.S. 312 (U.S. Supreme Court 1986) |
SUPREME COURT OF THE UNITED STATES
475 U.S. 312; 106 S. Ct. 1078; 89 L. Ed. 2d 251
HAROL WHITLEY, INDIVIDUALLY AND AS ASSISTANT SUPERINTENDENT, OREGON STATE PENITENTIARY, ET AL. v. GERALD ALBERS
No. 84-1077
December 10, 1985, Argued
March 4, 1986, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
DISPOSITION: 743 F.2d 1372, reversed.
SYLLABUS:
During the course of a riot at the Oregon State Penitentiary, a prison officer was taken hostage and placed in a cell on the upper tier of a two-tier cellblock. In an attempt to free the hostage, prison officials worked out a plan that called for the prisoner security manager to enter the cellblock unarmed, followed by prison officers armed with shotguns. The security manager ordered one of the officers to fire a warning shot and to shoot low at any inmates climbing the stairs to the upper tier since he would be climbing the stairs to free the hostage. One of the officers, after firing a warning shot, shot respondent in the left knee when he started up the stairs. Respondent subsequently brought an action in Federal District Court against petitioner prison officials pursuant to 42 U. S. C. § 1983, alleging, inter alia, that they had deprived him of his rights under the Eighth and Fourteenth Amendments. At the conclusion of the trial, the District Court directed a verdict for petitioners. The Court of Appeals reversed and remanded for a new trial on respondent's Eighth Amendment claim.
Held:
1. The shooting of respondent did not violate his Eighth Amendment right to be free from cruel and unusual punishments. Pp. 318-326.
(a) It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense. The general requirement that an Eighth Amendment claimant establish the unnecessary and wanton infliction of pain should also be applied with due regard for differences in the kind of conduct involved. Thus, where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that poses significant risks to the safety of inmates and prison staff, the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm. Pp. 318-322.
(b) Viewing the evidence in the light most favorable to respondent, as must be done in reviewing the decision reversing the trial court's directed verdict for petitioners, it does not appear that the evidence supports a reliable inference of wantonness in the infliction of pain under the above standard. Evidence arguably showing that the prison officials erred in judgment when they decided on a plan that employed potentially deadly force, falls far short of a showing that there was no plausible basis for their belief that this degree of force was necessary. In particular, the order to shoot, qualified by an instruction to shoot low, falls short of commanding the infliction of pain in a wanton and unnecessary fashion. Nor was the failure to provide for a verbal warning, in addition to a warning shot, so insupportable as to be wanton, since any inmate running up the stairs after the prison security manager could reasonably be thought to pose a threat to the rescue attempt. And the failure to take into account the possibility that respondent might climb the stairs in an effort to return to his cell does not rise to the level of an Eighth Amendment violation. Assuming that the prison officer shot at respondent rather than at the inmates as a group does not establish that the officer shot respondent knowing that it was unnecessary to do so. Under all these circumstances, the shooting was part and parcel of a good-faith effort to restore prison security. Pp. 322-326.
2. In this case, the Due Process Clause of the Fourteenth Amendment cannot serve as an alternative basis for affirmance, independently of the Eighth Amendment. In the prison security context, the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause. Pp. 326-327.
COUNSEL: Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioners. With him on the briefs were William F. Gary, Deputy Attorney General, James E. Mountain, Jr., Solicitor General, Virginia L. Linder, Assistant Solicitor General, and Robert M. Atkinson, Assistant Attorney General.
Gene B. Mechanic, by appointment of the Court, 474 U.S. 809, argued the cause and filed a brief for respondent. *
* Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Andrew J. Pincus filed a brief for the United States as amicus curiae urging reversal.
Steven Ney and Michael Mushlin filed a brief for the Correctional Association of New York et al. as amici curiae urging affirmance.
JUDGES: O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, and in all but n. 2 of which STEVENS, J., joined, post, p. 328.
OPINION: [*314] [***257] [**1081] JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to decide what standard governs a prison inmate's claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot.
I
At the time he was injured, respondent Gerald Albers was confined in cellblock "A" of the Oregon State Penitentiary. Cellblock "A" consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.
At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex. Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary's isolation and segregation facility. This incident could be seen from the cell windows in cellblock "A," and some of the onlookers became agitated because they thought that the guards were using unnecessary force. Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock "A," ordered the prisoners to return to their cells. The order was not obeyed. Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper. Kemper escaped but [***258] Officer [*315] Fitts was taken hostage. Klenk and other inmates [**1082] then began breaking furniture and milling about.
Upon being informed of the disturbance, petitioner Harol Whitley, the prison security manager, entered cellblock "A" and spoke with Klenk. Captain Whitley agreed to permit four residents of cellblock "A" to view the inmates who had been taken to segregation earlier. These emissaries reported back that the prisoners in segregation were intoxicated but unharmed. Nonetheless, the disturbance in cellblock "A" continued.
Whitley returned to the cellblock and confirmed that Fitts was not harmed. Shortly thereafter, Fitts was moved from an office on the lower tier to cell 201 on the upper tier, and Klenk demanded that media representatives be brought into the cellblock. In the course of the negotiations, Klenk, who was armed with a homemade knife, informed Whitley that one inmate had already been killed and other deaths would follow. In fact, an inmate had been beaten but not killed by other prisoners.
Captain Whitley left the cellblock to organize an assault squad. When Whitley returned to cellblock "A," he was taken to see Fitts in cell 201. Several inmates assured Whitley that they would protect Fitts from harm, but Klenk threatened to kill the hostage if an attempt was made to lead an assault. Klenk and at least some other inmates were aware that guards had assembled outside the cellblock and that shotguns had been issued. Meanwhile, respondent had left his cell on the upper tier to see if elderly prisoners housed on the lower tier could be moved out of harm's way in the event that tear gas was used. Respondent testified that he asked Whitley for the key to the row of cells housing the elderly prisoners, and Whitley indicated that he would return with the key. Whitley denied that he spoke to respondent at any time during the disturbance. Tr. 380.
Whitley next consulted with his superiors, petitioners Cupp, the prison Superintendent, and Kenney, the Assistant [*316] Superintendent. They agreed that forceful intervention was necessary to protect the life of the hostage and the safety of the inmates who were not rioting, and ruled out tear gas as an unworkable alternative. Cupp ordered Whitley to take a squad armed with shotguns into cellblock "A."
Whitley gave the final orders to the assault team, which was assembled in the area outside cellblock "A." Petitioner Kennicott and two other officers armed with shotguns were to follow Whitley, who was unarmed, over the barricade the inmates had constructed at the cellblock entrance. A second group of officers, without firearms, would be behind them. Whitley ordered Kennicott to fire a warning shot as he crossed the barricade. He also ordered Kennicott to shoot low at any prisoners climbing the stairs toward cell 201, since they could pose a threat to the safety of the hostage or to Whitley himself, who would be climbing the stairs in an attempt to free the hostage in cell 201.
At about 10:30 p.m., Whitley reappeared just outside the barricade. By this time, about a half hour had elapsed since the earlier breaking of furniture, and the noise level in the [***259] cellblock had noticeably diminished. Respondent, who was standing at the bottom of the stairway, asked about the key. Whitley replied "No," clambered over the barricade, yelled "shoot the bastards," and ran toward the stairs after Klenk, who had been standing in the open areaway along with a number of other inmates. Kennicott fired a warning shot into the wall opposite the cellblock entrance as he followed Whitley over the barricade. He then fired a second shot that struck a post near the stairway. Meanwhile, Whitley chased Klenk up the stairs, and shortly thereafter respondent started up the stairs. Kennicott fired a third shot that struck respondent in the left knee. Another inmate was shot on the stairs and several others on the lower tier were wounded by gunshot. The inmates in cell 201 prevented Klenk from entering, and Whitley subdued Klenk at the cell door, freeing the hostage.
[*317] [**1083] As a result of the incident, respondent sustained severe damage to his left leg and mental and emotional distress. He subsequently commenced this action pursuant to 42 U. S. C. § 1983, alleging that petitioners deprived him of his rights under the Eighth and Fourteenth Amendments and raising pendent state law claims for assault and battery and negligence. Many of the facts were stipulated, see Tr. 53-60, but both sides also presented testimony from witnesses to the disturbance and the rescue attempt, as well as from expert witnesses with backgrounds in prison discipline and security. At the conclusion of trial, the District Judge directed a verdict for petitioners. He understood respondent's claim to be based solely on the Eighth Amendment as made applicable to the States by the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660 (1962). The District Judge held:
"[Defendants]' use of deadly force was justified under the unique circumstances of this case. Possible alternatives were considered and reasonably rejected by prison officers. The use of shotguns and specifically the order to shoot low anyone following the unarmed Whitley up the stairs were necessary to protect Whitley, secure the safe release of the hostage and to restore order and discipline. Even in hindsight, it cannot be said that defendants' actions were not reasonably necessary." 546 F.Supp. 726, 735 (Ore. 1982).
In the alternative, he held that petitioners were immune from damages liability because the constitutional constraints on the use of force in a prison riot were not clearly established. Finally, the District Judge held that respondent was barred from recovery on his pendent state law claims by virtue of an immunity conferred on public officers by the Oregon Tort Claims Act as to claims arising out of riots or mob actions.
A panel of the Court of Appeals for the Ninth Circuit reversed in part and affirmed in part, with one judge dissenting. [*318] 743 F.2d 1372 (1984). The court held that an Eighth Amendment violation would be established "if a prison official deliberately shot Albers under circumstances where the official, with due allowance for the exigency, knew or should have known that it was unnecessary," id., at 1375, or "if the emergency plan was adopted or carried out with 'deliberate indifference' to the right of Albers to be free [***260] of cruel unusual punishment." Ibid. The Court of Appeals pointed to evidence that the general disturbance in cellblock "A" was subsiding and to respondent's experts' testimony that the use of deadly force was excessive under the circumstances and should have been preceded by a verbal warning, and concluded that the jury could have found an Eighth Amendment violation. Id., at 1376.
The Court of Appeals also ruled that petitioners could not prevail on their qualified immunity defense, because "[a] finding of deliberate indifference is inconsistent with a finding of good faith or qualified immunity." Ibid. Accordingly, the court remanded for a new trial on respondent's Eighth Amendment claim, while agreeing with the District Judge that respondent could not prevail on his state law claims, id., at 1377, and that he had not asserted an independent violation of the Fourteenth Amendment. Id., at 1374, n. 1. We granted certiorari, 472 U.S. 1007 (1985), and now reverse.
II
The language of the Eighth Amendment, "[excessive] bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," manifests "an intention to limit the power of those entrusted with the criminal-law function of government." Ingraham v. Wright, 430 U.S. 651, 664 (1977). The Cruel and Unusual Punishments Clause "was designed to protect those convicted of crimes," ibid., and consequently the Clause applies "only after the State has complied with the constitutional guarantees traditionally [**1084] associated with criminal prosecutions." Id., at 671, n. 40. [*319] See also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979). An express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U.S. 97, 104 (1976) ("deliberate indifference" to a prisoner's serious medical needs is cruel and unusual punishment), and harsh "conditions of confinement" may constitute cruel and unusual punishment unless such conditions "are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. "After incarceration, only the "'unnecessary and wanton infliction of pain'" . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Ingraham v. Wright, supra, at 670 (quoting Estelle v. Gamble, supra, at 103) (citations omitted). To be cruel and unusual
475 U.S. 312; 106 S. Ct. 1078; 89 L. Ed. 2d 251
HAROL WHITLEY, INDIVIDUALLY AND AS ASSISTANT SUPERINTENDENT, OREGON STATE PENITENTIARY, ET AL. v. GERALD ALBERS
No. 84-1077
December 10, 1985, Argued
March 4, 1986, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
DISPOSITION: 743 F.2d 1372, reversed.
SYLLABUS:
During the course of a riot at the Oregon State Penitentiary, a prison officer was taken hostage and placed in a cell on the upper tier of a two-tier cellblock. In an attempt to free the hostage, prison officials worked out a plan that called for the prisoner security manager to enter the cellblock unarmed, followed by prison officers armed with shotguns. The security manager ordered one of the officers to fire a warning shot and to shoot low at any inmates climbing the stairs to the upper tier since he would be climbing the stairs to free the hostage. One of the officers, after firing a warning shot, shot respondent in the left knee when he started up the stairs. Respondent subsequently brought an action in Federal District Court against petitioner prison officials pursuant to 42 U. S. C. § 1983, alleging, inter alia, that they had deprived him of his rights under the Eighth and Fourteenth Amendments. At the conclusion of the trial, the District Court directed a verdict for petitioners. The Court of Appeals reversed and remanded for a new trial on respondent's Eighth Amendment claim.
Held:
1. The shooting of respondent did not violate his Eighth Amendment right to be free from cruel and unusual punishments. Pp. 318-326.
(a) It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense. The general requirement that an Eighth Amendment claimant establish the unnecessary and wanton infliction of pain should also be applied with due regard for differences in the kind of conduct involved. Thus, where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that poses significant risks to the safety of inmates and prison staff, the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm. Pp. 318-322.
(b) Viewing the evidence in the light most favorable to respondent, as must be done in reviewing the decision reversing the trial court's directed verdict for petitioners, it does not appear that the evidence supports a reliable inference of wantonness in the infliction of pain under the above standard. Evidence arguably showing that the prison officials erred in judgment when they decided on a plan that employed potentially deadly force, falls far short of a showing that there was no plausible basis for their belief that this degree of force was necessary. In particular, the order to shoot, qualified by an instruction to shoot low, falls short of commanding the infliction of pain in a wanton and unnecessary fashion. Nor was the failure to provide for a verbal warning, in addition to a warning shot, so insupportable as to be wanton, since any inmate running up the stairs after the prison security manager could reasonably be thought to pose a threat to the rescue attempt. And the failure to take into account the possibility that respondent might climb the stairs in an effort to return to his cell does not rise to the level of an Eighth Amendment violation. Assuming that the prison officer shot at respondent rather than at the inmates as a group does not establish that the officer shot respondent knowing that it was unnecessary to do so. Under all these circumstances, the shooting was part and parcel of a good-faith effort to restore prison security. Pp. 322-326.
2. In this case, the Due Process Clause of the Fourteenth Amendment cannot serve as an alternative basis for affirmance, independently of the Eighth Amendment. In the prison security context, the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause. Pp. 326-327.
COUNSEL: Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioners. With him on the briefs were William F. Gary, Deputy Attorney General, James E. Mountain, Jr., Solicitor General, Virginia L. Linder, Assistant Solicitor General, and Robert M. Atkinson, Assistant Attorney General.
Gene B. Mechanic, by appointment of the Court, 474 U.S. 809, argued the cause and filed a brief for respondent. *
* Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Andrew J. Pincus filed a brief for the United States as amicus curiae urging reversal.
Steven Ney and Michael Mushlin filed a brief for the Correctional Association of New York et al. as amici curiae urging affirmance.
JUDGES: O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, and in all but n. 2 of which STEVENS, J., joined, post, p. 328.
OPINION: [*314] [***257] [**1081] JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to decide what standard governs a prison inmate's claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot.
I
At the time he was injured, respondent Gerald Albers was confined in cellblock "A" of the Oregon State Penitentiary. Cellblock "A" consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.
At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex. Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary's isolation and segregation facility. This incident could be seen from the cell windows in cellblock "A," and some of the onlookers became agitated because they thought that the guards were using unnecessary force. Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock "A," ordered the prisoners to return to their cells. The order was not obeyed. Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper. Kemper escaped but [***258] Officer [*315] Fitts was taken hostage. Klenk and other inmates [**1082] then began breaking furniture and milling about.
Upon being informed of the disturbance, petitioner Harol Whitley, the prison security manager, entered cellblock "A" and spoke with Klenk. Captain Whitley agreed to permit four residents of cellblock "A" to view the inmates who had been taken to segregation earlier. These emissaries reported back that the prisoners in segregation were intoxicated but unharmed. Nonetheless, the disturbance in cellblock "A" continued.
Whitley returned to the cellblock and confirmed that Fitts was not harmed. Shortly thereafter, Fitts was moved from an office on the lower tier to cell 201 on the upper tier, and Klenk demanded that media representatives be brought into the cellblock. In the course of the negotiations, Klenk, who was armed with a homemade knife, informed Whitley that one inmate had already been killed and other deaths would follow. In fact, an inmate had been beaten but not killed by other prisoners.
Captain Whitley left the cellblock to organize an assault squad. When Whitley returned to cellblock "A," he was taken to see Fitts in cell 201. Several inmates assured Whitley that they would protect Fitts from harm, but Klenk threatened to kill the hostage if an attempt was made to lead an assault. Klenk and at least some other inmates were aware that guards had assembled outside the cellblock and that shotguns had been issued. Meanwhile, respondent had left his cell on the upper tier to see if elderly prisoners housed on the lower tier could be moved out of harm's way in the event that tear gas was used. Respondent testified that he asked Whitley for the key to the row of cells housing the elderly prisoners, and Whitley indicated that he would return with the key. Whitley denied that he spoke to respondent at any time during the disturbance. Tr. 380.
Whitley next consulted with his superiors, petitioners Cupp, the prison Superintendent, and Kenney, the Assistant [*316] Superintendent. They agreed that forceful intervention was necessary to protect the life of the hostage and the safety of the inmates who were not rioting, and ruled out tear gas as an unworkable alternative. Cupp ordered Whitley to take a squad armed with shotguns into cellblock "A."
Whitley gave the final orders to the assault team, which was assembled in the area outside cellblock "A." Petitioner Kennicott and two other officers armed with shotguns were to follow Whitley, who was unarmed, over the barricade the inmates had constructed at the cellblock entrance. A second group of officers, without firearms, would be behind them. Whitley ordered Kennicott to fire a warning shot as he crossed the barricade. He also ordered Kennicott to shoot low at any prisoners climbing the stairs toward cell 201, since they could pose a threat to the safety of the hostage or to Whitley himself, who would be climbing the stairs in an attempt to free the hostage in cell 201.
At about 10:30 p.m., Whitley reappeared just outside the barricade. By this time, about a half hour had elapsed since the earlier breaking of furniture, and the noise level in the [***259] cellblock had noticeably diminished. Respondent, who was standing at the bottom of the stairway, asked about the key. Whitley replied "No," clambered over the barricade, yelled "shoot the bastards," and ran toward the stairs after Klenk, who had been standing in the open areaway along with a number of other inmates. Kennicott fired a warning shot into the wall opposite the cellblock entrance as he followed Whitley over the barricade. He then fired a second shot that struck a post near the stairway. Meanwhile, Whitley chased Klenk up the stairs, and shortly thereafter respondent started up the stairs. Kennicott fired a third shot that struck respondent in the left knee. Another inmate was shot on the stairs and several others on the lower tier were wounded by gunshot. The inmates in cell 201 prevented Klenk from entering, and Whitley subdued Klenk at the cell door, freeing the hostage.
[*317] [**1083] As a result of the incident, respondent sustained severe damage to his left leg and mental and emotional distress. He subsequently commenced this action pursuant to 42 U. S. C. § 1983, alleging that petitioners deprived him of his rights under the Eighth and Fourteenth Amendments and raising pendent state law claims for assault and battery and negligence. Many of the facts were stipulated, see Tr. 53-60, but both sides also presented testimony from witnesses to the disturbance and the rescue attempt, as well as from expert witnesses with backgrounds in prison discipline and security. At the conclusion of trial, the District Judge directed a verdict for petitioners. He understood respondent's claim to be based solely on the Eighth Amendment as made applicable to the States by the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660 (1962). The District Judge held:
"[Defendants]' use of deadly force was justified under the unique circumstances of this case. Possible alternatives were considered and reasonably rejected by prison officers. The use of shotguns and specifically the order to shoot low anyone following the unarmed Whitley up the stairs were necessary to protect Whitley, secure the safe release of the hostage and to restore order and discipline. Even in hindsight, it cannot be said that defendants' actions were not reasonably necessary." 546 F.Supp. 726, 735 (Ore. 1982).
In the alternative, he held that petitioners were immune from damages liability because the constitutional constraints on the use of force in a prison riot were not clearly established. Finally, the District Judge held that respondent was barred from recovery on his pendent state law claims by virtue of an immunity conferred on public officers by the Oregon Tort Claims Act as to claims arising out of riots or mob actions.
A panel of the Court of Appeals for the Ninth Circuit reversed in part and affirmed in part, with one judge dissenting. [*318] 743 F.2d 1372 (1984). The court held that an Eighth Amendment violation would be established "if a prison official deliberately shot Albers under circumstances where the official, with due allowance for the exigency, knew or should have known that it was unnecessary," id., at 1375, or "if the emergency plan was adopted or carried out with 'deliberate indifference' to the right of Albers to be free [***260] of cruel unusual punishment." Ibid. The Court of Appeals pointed to evidence that the general disturbance in cellblock "A" was subsiding and to respondent's experts' testimony that the use of deadly force was excessive under the circumstances and should have been preceded by a verbal warning, and concluded that the jury could have found an Eighth Amendment violation. Id., at 1376.
The Court of Appeals also ruled that petitioners could not prevail on their qualified immunity defense, because "[a] finding of deliberate indifference is inconsistent with a finding of good faith or qualified immunity." Ibid. Accordingly, the court remanded for a new trial on respondent's Eighth Amendment claim, while agreeing with the District Judge that respondent could not prevail on his state law claims, id., at 1377, and that he had not asserted an independent violation of the Fourteenth Amendment. Id., at 1374, n. 1. We granted certiorari, 472 U.S. 1007 (1985), and now reverse.
II
The language of the Eighth Amendment, "[excessive] bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," manifests "an intention to limit the power of those entrusted with the criminal-law function of government." Ingraham v. Wright, 430 U.S. 651, 664 (1977). The Cruel and Unusual Punishments Clause "was designed to protect those convicted of crimes," ibid., and consequently the Clause applies "only after the State has complied with the constitutional guarantees traditionally [**1084] associated with criminal prosecutions." Id., at 671, n. 40. [*319] See also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979). An express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U.S. 97, 104 (1976) ("deliberate indifference" to a prisoner's serious medical needs is cruel and unusual punishment), and harsh "conditions of confinement" may constitute cruel and unusual punishment unless such conditions "are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. "After incarceration, only the "'unnecessary and wanton infliction of pain'" . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Ingraham v. Wright, supra, at 670 (quoting Estelle v. Gamble, supra, at 103) (citations omitted). To be cruel and unusual