Betty Wade v. Georgia Correctional Health, LLC

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14275

____________________

BETTY WADE,

in her capacity as Personal Representative of the Estate of David

Henegar,

Plaintiff-Appellant,

versus

CINDY MCDADE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:18-cv-00192-AT

____________________

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2 Opinion of the Court 21-14275

Before WILLIAM PRYOR, Chief Judge, and WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

BRASHER, ABUDU, and TJOFLAT,∗ Circuit Judges.

NEWSOM, Circuit Judge, delivered the opinion of the Court, in

which WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSENBAUM,

JILL PRYOR, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ABUDU and

TJOFLAT, Circuit Judges, joined.

JORDAN, Circuit Judge, filed a concurring opinion, in which

ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a concurring opinion in which JILL

PRYOR and ABUDU, Circuit Judges, joined.

NEWSOM, Circuit Judge, filed a concurring opinion.

NEWSOM, Circuit Judge:

We granted rehearing en banc to resolve a question that,

while simply stated, has bedeviled panels of this Court for the bet-

ter part of the last three decades: “What is the standard for estab-

lishing liability on an Eighth Amendment deliberate-indifference

claim?” For reasons we’ll explain, we now hold, in accordance with

the Supreme Court’s decision in Farmer v. Brennan, that in addition

to an “objectively serious” deprivation, a deliberate-indifference

plaintiff must show that the defendant acted with “subjective

∗ Senior Circuit Judge Gerald B. Tjoflat elected to participate in this decision

pursuant to 28 U.S.C. § 46(c).

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21-14275 Opinion of the Court 3

recklessness as used in the criminal law,” 511 U.S. 825, 839 (1994),

and that in order to do so, the plaintiff must demonstrate that the

defendant actually knew that his conduct—his own acts or omis-

sions—put the plaintiff at substantial risk of serious harm. We add

the caveat, likewise prescribed by Farmer, that even if the defendant

“actually knew of a substantial risk to inmate health or safety,” he

cannot be found liable under the Cruel and Unusual Punishments

Clause if he “responded reasonably to th[at] risk.” Id. at 844.

I

Because we took this case en banc solely to clarify our incon-

sistent precedent and to answer a discrete question of law, and be-

cause we will remand for application of the Eighth Amendment

standard that we adopt, we needn’t belabor the particular facts of

this case. It will suffice for present purposes to say that over a four-

day period in August 2016, during his incarceration at Walker State

Prison in Georgia, an inmate named David Henegar failed to re-

ceive his daily seizure medication, Dilantin, which he had been pre-

scribed to treat epilepsy. Late on the fourth day, Henegar suffered

two seizures that he said caused him permanent brain damage. See

Wade v. McDade, 67 F.4th 1363, 1366–69 (11th Cir. 2023), vacated

and reh’g en banc granted, 83 F.4th 1332 (11th Cir. 2023).

Proceeding under 42 U.S.C. § 1983, Henegar sued five prison

employees—two corrections officers and three nurses—arguing

that by failing to ensure that he got his Dilantin they had exhibited

“deliberate indifference” to his medical needs in violation of the

Eighth Amendment. The district court granted summary

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4 Opinion of the Court 21-14275

judgment to all defendants on the ground that they were entitled

to qualified immunity. In particular, the court held that even if one

or more of the defendants had violated the Constitution, the law in

August 2016 was insufficiently “clearly established” to give them

fair notice of the unlawfulness of their conduct: “Assuming De-

fendants’ conduct here constituted deliberate indifference to a seri-

ous medical need in violation of Plaintiff’s Eighth Amendment

rights, Plaintiff has failed to point to any law applicable to the cir-

cumstances presented in this case that clearly established the al-

leged violation of Plaintiff’s rights.” Doc. 168 at 31.

Shortly after the district court rendered its decision, Henegar

died from causes unrelated to the seizures that he suffered while in

prison. Betty Wade—Henegar’s sister and the personal representa-

tive of his estate—assumed responsibility for his suit, and on appeal

she contended that the district court had erred in granting the de-

fendants summary judgment. A panel of this Court affirmed the

district court’s decision on the ground that Wade hadn’t shown

that the prison officials violated Henegar’s Eighth Amendment

rights, without reaching the question whether those rights were

sufficiently “clearly established” to defeat qualified immunity. See

Wade, 67 F.4th at 1374–78. Importantly for present purposes, in

the course of so doing, the panel noted a deep and entrenched in-

tracircuit split concerning one of the necessary elements of an in-

mate’s deliberate-indifference claim. In particular, the panel ob-

served that “[f]or more than 25 years now, our case law regarding

a deliberate-indifference claim’s mens rea element has been hope-

lessly confused, resulting in what we’ll charitably call a ‘mess.’” Id.

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at 1371. More particularly still, the panel explained that our deci-

sions had “flip-flop[ped] between two competing formulations”—

one requiring an inmate to show that a prison official acted with

“more than mere negligence,” and the other requiring proof that he

acted with “more than gross negligence.” Id. Applying its best un-

derstanding of the prior-panel-precedent rule, the panel held that a

deliberate-indifference plaintiff must demonstrate, among other

things, that the defendant “acted with more than gross negligence.”

Id. at 1374.

A majority of the active judges of this Court subsequently

voted to vacate the panel’s opinion and rehear the case en banc.

See Wade v. McDade, 83 F.4th 1332 (11th Cir. 2023). We instructed

the parties “not [to] concern themselves with the application of the

‘prior panel precedent rule’” and directed them instead to address

the following question of law: “What is the standard for establish-

ing liability on an Eighth Amendment deliberate-indifference

claim?”

Sitting as a full Court, we now answer that question.

II

In relevant part, the Eighth Amendment forbids the “in-

flict[ion]” of “cruel and unusual punishments.” U.S. Const. amend

VIII. The Supreme Court first held in Estelle v. Gamble that the

Cruel and Unusual Punishments Clause should be understood to

prohibit government officials from exhibiting “deliberate indiffer-

ence to [the] serious medical needs of prisoners.” 429 U.S. 97, 104–

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6 Opinion of the Court 21-14275

05 (1976). In Farmer v. Brennan, the Court later clarified that “a

prison official violates the Eighth Amendment only when two re-

quirements are met.” 511 U.S. 825, 834 (1994). As an initial matter,

the Court said, “the deprivation alleged must be, objectively, ‘suf-

ficiently serious.’” Id. (citation omitted). Separately, the Court ex-

plained, “[t]o violate the Cruel and Unusual Punishments Clause,

a prison official must have a ‘sufficiently culpable state of mind”—

i.e., “deliberate indifference.” Id. (citations omitted). All here agree

that Henegar’s unmedicated epilepsy presents an objectively seri-

ous medical need and, therefore, that Farmer’s first requirement is

satisfied. This case requires an assessment of Farmer’s second, “de-

liberate indifference” requirement.

For decades, our own precedent has been marred by internal

inconsistency regarding the showing that a prison inmate must

make to demonstrate that prison officials were deliberately indif-

ferent in violation of the Eighth Amendment. We have typically

subdivided Farmer’s deliberate-indifference requirement into three

sub-requirements. First, we have said, the inmate must prove that

the official was subjectively aware that the inmate was at risk of

serious harm. See, e.g., Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d

1263, 1270 (11th Cir. 2020). Second, we have held that the inmate

must show that the official disregarded that risk. See, e.g., id. And

third—enter the dissonance—we have said that the inmate must

demonstrate that the official acted with more than some requisite

level of negligence. With respect to this third sub-requirement, our

precedent reflects a persistent split between cases holding that the

inmate must prove that the official’s conduct reflected “more than

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21-14275 Opinion of the Court 7

mere negligence” and those holding that the inmate must demon-

strate that the official acted with “more than gross negligence.” See

Wade, 67 F.4th at 1371.

In light of the intracircuit split, we granted rehearing en banc

to clarify “the standard for establishing liability on an Eighth

Amendment deliberate-indifference claim.” Having reconsidered

the issue, we now repudiate our dueling “more than” formulations

and hold instead that a deliberate-indifference plaintiff must prove

that the defendant acted with “subjective recklessness as used in

the criminal law,” Farmer, 511 U.S. at 839, and that in order to do

so, the plaintiff must show that the defendant was subjectively

aware that his own conduct put the plaintiff at substantial risk of

serious harm—with the caveat that, in any event, a defendant who

“respond[s] reasonably” to a risk, id. at 844, even a known risk,

“cannot be found liable” under the Eighth Amendment, id. at 837.

A

We lost our way—and bollixed our caselaw—by straying

from Farmer, so we begin with a detailed review of the Supreme

Court’s decision there. It was in Farmer that the Court first set out

to explain the “deliberate indifference” standard that it had earlier

adopted in Estelle. The Court held that even if the Eighth Amend-

ment was originally understood to apply only to “punishments”

imposed as part of a criminal conviction and sentence, the caselaw

had since “settled that the treatment a prisoner receives in prison

and the conditions under which he is confined are subject to scru-

tiny under” that provision. Id. at 832 (quotation marks omitted).

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8 Opinion of the Court 21-14275

The Court clarified, however, that not every injury suffered by an

inmate at the hands of his jailors violates the Constitution. Rather,

the Court said, “a prison official violates the Eighth Amendment

only when two requirements are met.” Id. at 834. To satisfy the

first, the Court explained, the inmate must establish that the depri-

vation he allegedly suffered was “objectively, ‘sufficiently serious.’”

Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “The second

requirement,” the Court emphasized, “follows from the principle

that ‘only the unnecessary and wanton infliction of pain implicates

the Eighth Amendment.’” Id. (quoting Wilson, 501 U.S. at 297).

Focusing its attention on this second requirement, the Farmer

Court held that “[t]o violate the Cruel and Unusual Punishments

Clause, a prison official must have a ‘sufficiently culpable state of

mind”—namely, it said, “‘deliberate indifference.’” Id. (citation

and internal quotation marks omitted). Accordingly, the Court

clarified, “[t]he question under the Eighth Amendment is whether

prison officials, acting with deliberate indifference, exposed a pris-

oner to a sufficiently substantial ‘risk of serious damage to his fu-

ture health.’” Id. at 843 (citation omitted).

Importantly for our purposes, the Farmer Court then “un-

dert[ook] to define” the “proper test for deliberate indifference.”

Id. at 834. The Court began by observing that, on the one hand,

“deliberate indifference describes a state of mind more blamewor-

thy than negligence” but, on the other, “is satisfied by something

less than acts or omissions for the very purpose of causing harm or

with knowledge that harm will result.” Id. at 835. The Court noted

that “[w]ith deliberate indifference lying somewhere between the

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poles of negligence at one end and purpose or knowledge at the

other,” the lower courts had “routinely equated deliberate indiffer-

ence with recklessness.” Id. at 836. That was correct as far as it

went, the Farmer Court said, but it didn’t “fully answer the . . . ques-

tion about the level of culpability deliberate indifference entails”

because, the Court explained, “the term recklessness is not self-de-

fining.” Id. The “civil law generally calls a person reckless who

acts or (if the person has a duty to act) fails to act in the face of an

unjustifiably high risk of harm that is either known or so obvious that

it should be known.” Id. (emphasis added). By contrast, the “crimi-

nal law . . . generally permits a finding of recklessness only when a

person disregards a risk of harm of which he is aware.” Id. at 836–37

(emphasis added).

The Farmer Court expressly “reject[ed] . . . [the] invitation to

adopt an objective test for deliberate indifference” of the sort em-

ployed in the civil law and held instead that the Eighth Amendment

requires proof of “subjective recklessness as used in the criminal

law.” Id. at 837, 839. A subjective-recklessness standard, the Court

repeatedly emphasized, “comports best with the text of the

Amendment as our cases have interpreted it.” Id. at 837. In partic-

ular, the Court said, “[t]he Eighth Amendment does not outlaw

cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘pun-

ishments.’” Id. “[A]n official’s failure to alleviate a significant risk

that he should have perceived but did not, while no cause for com-

mendation, cannot under our cases be condemned as the infliction

of punishment.” Id. at 838. “[A] subjective approach,” the Court

stressed, “isolates those who inflict punishment,” and thus

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“ensure[s] that only inflictions of punishment carry liability.” Id. at

839, 841.

Having settled on and explained the subjective-recklessness

standard, the Farmer Court then appended a coda of sorts: Even a

“prison official[] who actually knew of a substantial risk to inmate

health or safety may be found free of liability if [he] responded rea-

sonably to the risk, even if the harm ultimately was not averted.”

Id. at 844. Put slightly differently, a “prison official[] who act[s] rea-

sonably cannot be found liable under the Cruel and Unusual Pun-

ishments Clause.” Id. at 845.

B

Helpfully, the parties here agree on several key points. First,

they agree that Farmer adopted a criminal-recklessness standard,

which requires the plaintiff inmate to prove that the defendant

prison official actually knew of a substantial risk of serious harm, not

just that he should have known. See, e.g., Br. of Appellant at 12 (ob-

serving that Farmer prescribes a “criminal recklessness standard”);

Br. of Appellee 2 (“criminal recklessness”); Reply Br. of Appellant

at 2 (“The parties agree . . . [that] the standard to prove deliberate

indifference is criminal recklessness.”). Second, and relatedly, the

parties agree that we should scrap our confusing negligence-based

formulations—whether “more than mere” or “more than gross”—

in favor of a return to Farmer’s criminal-recklessness benchmark.

See, e.g., Br. of Appellant at 26–32; Br. of Appellee at 2, 19, 32. Fi-

nally, they agree that even if a prison official had the requisite sub-

jective awareness of the risk to the inmate, he cannot be held liable

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21-14275 Opinion of the Court 11

under the Eighth Amendment if he responded reasonably to that

risk. See, e.g., Br. of Appellant at 26; Br. of Appellee at 34–36.

The parties’ key disagreement pertains to the identification

of the “risk” of which the prison officials must have been subjec-

tively aware. Is it sufficient, as Wade contends, that the official

knew that the inmate faced a substantial risk of serious harm, what-

ever its cause or origin? Or, as the state insists, must the inmate

show instead that the official knew that his own conduct—his own

acts or omissions—caused a substantial risk of serious harm to the

inmate?

Wade maintains that she need only show here that the

prison officials knew “that Mr. Henegar faced a substantial risk of

serious harm because he was not receiving his seizure medication”

and then failed to take reasonable steps to secure it for him. Br. of

Appellant at 37; accord, e.g., Reply Br. of Appellant at 5 (arguing that

a prison official need only “be aware that the inmate was not re-

ceiving medication necessary to manage [a] medical condition”).

So, for instance, Wade asserts that it is enough that the corrections

officers were “aware that Mr. Henegar’s Dilantin was missing” and,

similarly, that two of the nurses “were aware that Mr. Henegar was

not receiving his medication.” Br. of Appellant at 38, 40; see also,

e.g., id. at 41 (asserting that two nurses “were aware of the missing

medication”).

For its part, the state insists that Wade’s position “analyzes

the subjective awareness of a serious risk of harm at far too high a

level of generality.” Br. of Appellee at 23. “A generalized

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12 Opinion of the Court 21-14275

awareness of a medical need,” the state contends, “is not enough.”

Id. at 19. Rather, the state says, “to make out a deliberate indiffer-

ence claim” under Farmer’s criminal-recklessness standard,” the

“risk of which an official must be subjectively aware is a risk based

on his own action or inaction.” Id. at 20 (second emphasis added);

id. at 30 (“[A] general awareness of a problem is not sufficient—

there needs to be a specific awareness that the problem requires the

officer’s action.”). Accordingly, the state contends, in a case like

this one, which alleges that various prison officials neglected to do

something, Farmer requires proof that the “prison official [was] sub-

jectively aware . . . that his inaction will cause an excessive risk of

harm.” Id. at 2 (emphasis added); accord, e.g., id. at 4 (“[A]n official

must know that by failing to perform some act, he or she is putting

the inmate at a substantial risk of serious harm.” (emphasis added));

id. at 6 (“The question is whether an official knows that his specific

decision not to act will cause or maintain an exceedingly high risk of

injury.” (second emphasis added)).

For several reasons that we’ll explain in turn, we hold that a

deliberate-indifference plaintiff must show that the defendant offi-

cial was subjectively aware that his own conduct—again, his own

actions or inactions—put the plaintiff at substantial risk of serious

harm.

1

The first and most important reason for requiring a deliber-

ate-indifference plaintiff to show that the defendant subjectively

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knew that his own conduct caused a substantial risk of serious

harm is that Farmer is best understood to adopt that rule.

The suit there was brought by a male-to-female transgender

inmate complaining about the dangers posed by the inmate’s place-

ment in the general population of a men’s prison. See 511 U.S. at

829–30. The Supreme Court summarized the inmate’s operative

complaint as follows: “[R]espondents either transferred petitioner

to [a different prison,] 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.” Id. at 830–31; see also id. at

849 (reciting the plaintiff’s contention that “each defendant showed

reckless disregard for my safety by designating me to said institu-

tion knowing that I would be sexually assaulted”). Significantly,

the inmate’s allegations—and thus the Court’s decision concerning

those allegations—were trained not just on the risks of violence

and assault that exist in a prison’s general population, but rather on

the risks that the prison officials created by placing the inmate in a

particular prison’s general population.

Against the backdrop of the inmate’s allegations, it’s unsur-

prising that, on balance, the Farmer Court couched its analysis in

terms of an assessment of the prison officials’ subjective awareness

of the particular risk posed by their own conduct. True, the

Court’s opinion at times refers generically to the risk that an inmate

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14 Opinion of the Court 21-14275

“face[s].” Id. at 843, 847. Notably, though, the Court framed “[t]he

question under the Eighth Amendment” more precisely:

“[W]hether prison officials, acting with deliberate indifference, ex-

posed a prisoner to a sufficiently substantial ‘risk of serious damage

to his future health.’” Id. at 843 (emphasis added) (citation omit-

ted). Other passages of the Court’s opinion likewise emphasize the

inextricable link between a prison official’s conduct and his

knowledge of the risk created thereby. See, e.g., id. at 842 (“Under

the test we adopt today, an Eighth Amendment claimant [must]

show . . . that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.”); id. at 845 (“[T]he

subjective factor, deliberate indifference, should be determined in

light of the prison authorities’ current attitudes and conduct.” (ci-

tation omitted)). The Court’s focus, it seems to us, was on whether

the official knew that his own conduct—again, his own acts or

omissions—put the inmate at risk, not just whether the inmate

confronted a risk in the abstract. Cf. Cox v. Quinn, 828 F.3d 227, 236

(4th Cir. 2016) (interpreting Farmer to require proof that “in addi-

tion to subjectively recognizing [the] substantial risk, the prison of-

ficial must also subjectively be aware that his actions were inappro-

priate in light of that risk” (citations and internal quotation marks

omitted)).

Any doubt about Farmer’s import, we think, is resolved by

the Supreme Court’s persistent emphasis on the language of the

Eighth Amendment and the strictures that its terms impose. The

Cruel and Unusual Punishments Clause, of course, regulates only

the “inflict[ion]” of “punishment,” U.S. Const. amend. VIII, and the

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Court repeatedly stressed the limited scope of the text’s prohibi-

tion, see, e.g., 511 U.S. at 837–39, 841, 844. So, for instance, as al-

ready noted, the Court observed that “[t]he Eighth Amendment

does not outlaw cruel and unusual ‘conditions’” but only “cruel

and unusual ‘punishments,’” id. at 837, and, to that end, stressed

that the governing liability standard should “ensure[] that only in-

flictions of punishment carry liability.” Id. at 841; accord, e.g., Wil-

son, 501 U.S. at 300) (“The infliction of punishment is a deliberate

act intended to chastise or deter. This is what the word means to-

day; it is what it meant in the eighteenth century.” (citation and

internal quotation marks omitted)). Indeed, the Court emphasized

that the whole point of adopting a “subjective approach” to deliber-

ate indifference—which, underscoring a defendant’s individual cul-

pability, it imported from the criminal law—was to “isolate[] those

who inflict punishment” within the meaning of the Eighth Amend-

ment. Farmer, 511 U.S. at 839. Absent a particularized focus on a

prison official’s subjective awareness of the risk created by his own

conduct, there is a danger that he could be held liable for conduct

that does not remotely resemble the “inflict[ion]” of “punish-

ment[.]”

2

Separately, only a rule trained on a prison official’s subjec-

tive awareness of the risk caused by his own conduct—rather than

some preexisting risk—can account for, and sensibly apply to, the

full range of deliberate-indifference cases.

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16 Opinion of the Court 21-14275

Needless to say, there’s only one Eighth Amendment, and

only one deliberate-indifference standard. But deliberate-indiffer-

ence claims come in different varieties. Some, like this one, give

rise to what might be called “inaction” cases—they challenge

prison officials’ failure to do something. So, for instance, Wade’s

principal allegation is that the guards and nurses at Walker exhib-

ited deliberate indifference to Henegar’s medical needs when,

knowing that he suffered from epilepsy, they neglected to ensure

that he received his Dilantin, and thus “failed to provide him any

proper medical care or access to medical care.” Doc. 129 at 22. 1

Other deliberate-indifference claims, by contrast, give rise to what

we’ll call “action” cases—they target prison officials’ affirmative

misconduct. Imagine, for instance, a guard who, fed up with an

inmate’s noncompliance, fires his gun toward the ceiling, only to

have the bullet ricochet off a pipe and kill another prisoner. Or a

warden who requires inmates to clean the prison yard in subzero

temperatures, resulting in an otherwise-healthy prisoner’s sickness

and eventual death. Or an official who orders an inmate to clean a

latrine with a mixture of bleach and ammonia, which causes per-

manent respiratory damage. Cf. Hope v. Pelzer, 536 U.S. 730, 738

(2002) (holding that prison guards acted with deliberate

1 Pure “inaction” cases—in which a deliberate-indifference defendant is alleged

to have done literally nothing—will likely be few and far between, and indeed,

Wade at times frames her own case in “action” terms. See, e.g., Oral Arg. at

7:43 et seq. (arguing that the prison officials here “decided to take an action” in

response to Henegar’s condition but faulting that action as constitutionally in-

adequate).

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indifference when they handcuffed an inmate to a “hitching post”

and thereby “knowingly subjected him to a substantial risk of phys-

ical harm”); Taylor v. Rojas, 592 U.S. 7, 7–10 (2020) (holding that

guards exhibited deliberate indifference toward an inmate’s health

and safety when they “confined him in a pair of shockingly unsan-

itary cells”).

In a case that, like this one, can be framed in “inaction”

terms, it’s tempting to focus, as Wade does, on some preexisting

risk that the inmate plaintiff faced, without regard to its origin or

cause—here, for instance, the risk of epileptic seizure. Wade’s po-

sition, though, misses two important nuances. For starters, even

in a so-called “inaction” case, the relevant “risk” will rarely, if ever,

exist in a vacuum; it will almost always result from something a

prison official either does or doesn’t do. To use this case as an ex-

ample, all seem to agree that the substantial risk to Henegar’s

health resulted not from epilepsy itself, but rather from the fact that

his epilepsy went untreated. 2 And according to the allegations here,

Henegar’s epilepsy went untreated because the prison officials at

Walker failed to procure his Dilantin—that is, because the officials

misstepped. So even here, where the deliberate-indifference claim

2 See, e.g., Oral Arg. at 2:15 et seq. (Wade: “Petitioner here is not arguing for a

standard in which a prison official could be liable if he is simply aware that an

inmate has a medical condition; there’s not necessarily a risk there. The risk

attaches when an inmate who has a medical condition is uncontrolled—it’s

the lack of medication, it’s the lack of care, that creates the risk.”).

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18 Opinion of the Court 21-14275

can be cast in “inaction” terms, the relevant risk is inextricably tied

to the defendants’ own conduct.

More fundamentally, Wade’s focus on preexisting risk can’t

possibly apply to “action”-based deliberate-indifference cases. In

those, the reviewing court must assess the defendant’s knowledge

by reference to the risk created by his own conduct—for the simple

(and obvious) reason that there was no preexisting risk of which a

prison official might have been subjectively aware; by definition,

the risk didn’t materialize until the official acted. And that’s a prob-

lem for Wade’s proposed rule. In view of the fact that the same

Cruel and Unusual Punishments Clause provides the source of con-

stitutional protection in both the “action” and “inaction” contexts,

the Farmer Court repeatedly observed that the deliberate-indiffer-

ence standard applies similarly in both kinds of cases. See 511 U.S.

at 836 (“acting or failing to act”), 837 (“act or omission”), 842

(“acted or failed to act”). Accordingly, if the deliberate-indifference

inquiry in an “action” case necessarily focuses on the official’s sub-

jective awareness of the risk created by his own conduct, as it most

certainly does, it follows that the inquiry must retain the same fo-

cus even in cases, like this one, that can be framed in “inaction”

terms.

3

The capper, it seems to us, is that focusing on a prison offi-

cial’s subjective awareness of the risk posed by his own conduct—

rather than more vaguely on some allegedly preexisting risk—best

squares with how courts and commentators have historically

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21-14275 Opinion of the Court 19

understood and explained criminal recklessness, even outside the

Eighth Amendment context. A leading criminal-law treatise, for

instance, reports that “‘[r]ecklessness’ in causing a result exists

when one is aware that his conduct might cause the result, though it

is not substantially certain to happen.” Wayne LaFave, Substantive

Criminal Law § 5.4(f), at 507 (2018) (emphasis added). The Supreme

Court has likewise underscored that criminal recklessness denotes

a state of mind marked by one’s subjective awareness of a risk that

results from his own conduct. In Voisine v. United States, for in-

stance, the Court described “reckless behavior” as comprising “acts

undertaken with awareness of their substantial risk of causing injury”

and explained that one acts “recklessly” when he consciously disre-

gards “a substantial risk that [his] conduct will cause harm to another.”

579 U.S. 686, 691, 694 (2016) (emphasis added). So too, in her re-

cent plurality opinion in Borden v. United States, Justice Kagan ex-

plained that “[a] person acts recklessly, in the most common for-

mulation, when he ‘consciously disregards a substantial and unjus-

tifiable risk’ attached to his conduct, in ‘gross deviation’ from ac-

cepted standards.” 593 U.S. 420, 427 (2021) (emphasis added) (cita-

tion omitted); accord, e.g., Counterman v. Colorado, 600 U.S. 66, 79

(2023) (similar); cf. U.S.S.G. § 2A1.4 cmt. 1 (defining the term “reck-

less” as “a situation in which the defendant was aware of the risk

created by his conduct and the risk was of such a nature and degree

that to disregard that risk constituted a gross deviation from the

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20 Opinion of the Court 21-14275

standard of care that a reasonable person would exercise in such a

situation” (emphasis added)). 3

* * *

For all these reasons, we hold that in order to show that a

defendant acted with “subjective recklessness as used in the crimi-

nal law,” Farmer, 511 U.S. at 839, a deliberate-indifference plaintiff

must demonstrate that the defendant was actually aware that his

own conduct caused a substantial risk of serious harm to the plain-

tiff.

III

So, in sum, to the question we posed to the parties, “What

is the standard for establishing liability on an Eighth Amendment

deliberate-indifference claim?”, we answer as follows:

3 For that matter, even civil recklessness—which, unlike criminal recklessness,

entails an objective “should have known” gloss—focuses on the defendant’s

awareness of the risk posed by his own conduct:

The actor’s conduct is in reckless disregard of the safety of an-

other if he does an act or intentionally fails to do an act which

it is his duty to the other to do, knowing or having reason to

know of facts which would lead a reasonable man to realize,

not only that his conduct creates an unreasonable risk of physical

harm to another, but also that such risk is substantially greater

than that which is necessary to make his conduct negligent.

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69 (2007) (quoting Restatement (Sec-

ond) of Torts § 500 (1964)) (emphasis added).

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21-14275 Opinion of the Court 21

1. First, of course, the plaintiff must demonstrate, as a

threshold matter, that he suffered a deprivation that was, “objec-

tively, ‘sufficiently serious.’” Id. at 834 (citation omitted).

2. Second, the plaintiff must demonstrate that the defendant

acted with “subjective recklessness as used in the criminal law,” id.

at 839, and to do so he must show that the defendant was actually,

subjectively aware that his own conduct caused a substantial risk

of serious harm to the plaintiff—with the caveat, again, that even

if the defendant “actually knew of a substantial risk to inmate

health or safety,” he “cannot be found liable under the Cruel and

Unusual Punishments Clause” if he “responded reasonably to the

risk.” Id. at 844–45.

We remand to the panel for application of this standard to

the facts of this case.

REMANDED.

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21-14275 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, joined by ROSENBAUM, JILL PRYOR, and

ABUDU, Circuit Judges, Concurring.

Judge Newsom’s opinion for the en banc court correctly sets

out the subjective component of the deliberate indifference stand-

ard announced by the Supreme Court in Farmer v. Brennan, 511 U.S.

825 (1994), and goes some way in bringing clarity to our Eighth

Amendment jurisprudence. I therefore join the opinion.

I write separately on four matters. Three are doctrinal and

the fourth is practical.

First, our decision today does not make deliberate indiffer-

ence completely subjective on the defendant’s part. As the court

explains, “a plaintiff must demonstrate that the defendant acted

with ‘subjective recklessness as used in the criminal law,’ [Farmer,

511 U.S.] at 839, and to do so he must show that the defendant was

actually, subjectively aware that his own conduct caused a substan-

tial risk of serious harm to the plaintiff—with the caveat, again, that

even if the defendant ‘actually knew of a substantial risk to inmate

health or safety,’ he ‘cannot be found liable under the Cruel and

Unusual Punishments Clause’ if he ‘responded reasonably to the risk.’

Id. at 845–46.” Maj. Op. at 21 (emphasis added).

We have held that the reasonable response component of

deliberate indifference is objective and not subjective: “Deliberate

indifference ‘has two components: one subjective and one objec-

tive. [A] plaintiff must show both that the defendant actually (sub-

jectively) kn[ew] that an inmate [faced] a substantial risk of serious

harm and that the defendant disregard[ed] that known risk by

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2 JORDAN, J., Concurring 21-14275

failing to respond to it in an (objectively) reasonable manner.’”

Mosley v. Zachary, 966 F.3d 1265, 1270 (11th Cir. 2020) (citation

omitted). And we have consistently recognized and confirmed this

duality over the last two decades. See Bowen v. Warden, Baldwin

State Prison, 866 F.3d 1312, 1320 (11th Cir. 2016); Caldwell v. War-

den, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014); Rodriguez v.

Sec’y, Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007); Cottone v.

Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003).

The objective component makes sense, for it is part of crim-

inal recklessness, the standard the Supreme Court adopted in

Farmer. See, e.g., Model Penal Code § 2.02(2)(c) (Am. Law Inst.

1985) (“A person acts recklessly with respect to a material element

of an offense when he consciously disregards a substantial and un-

justifiable risk that the material element exists or will result from

his conduct. The risk must be of such a nature and degree that,

considering the nature and purpose of the actor’s conduct and the

circumstances known to him, its disregard involves a gross deviation

from the standard of conduct that a law-abiding person would observe in

the actor’s situation.”) (emphasis added); Nelson E. Roth & Scott E.

Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Cross-

roads, 70 Cornell L. J. 446, 453 n.40 (1985) (“Reckless behavior un-

der the Model Penal Code involves both subjective and objective

elements. The actor must ‘consciously disregard . . . a substantial

and unjustifiable risk,’ and such disregard must constitute a ‘gross

deviation from the standard of conduct that a law-abiding person

would observe in the actor’s situation.’”) (quoting § 2.02(c) of the

Model Penal Code). Moreover, in other constitutional scenarios

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21-14275 JORDAN, J., Concurring 3

reasonableness is generally an objective assessment. See, e.g., Ash-

croft v. al-Kidd, 563 U.S. 731, 736 (2011) (“Fourth Amendment rea-

sonableness ‘is predominately an objective inquiry.’”) (citation

omitted). Today’s opinion focuses on the subjective component of

deliberate indifference, but does not address the objective compo-

nent.

Second, a defendant’s subjective knowledge need not be es-

tablished by direct evidence or admissions. As with knowledge in

other areas of the law, subjective awareness of a substantial risk of

harm can be proven (or an issue of material fact created) through

circumstantial evidence. See, e.g., Regalado Cuellar v. United States,

553 U.S. 550, 567 n.8 (2008) (“In many cases, a criminal defend-

ant’s knowledge or purpose is not established by direct evidence

but instead is shown circumstantially based on inferences drawn

from evidence of effect. See, e.g., 1 W. LaFave, Substantive Criminal

Law § 5.2(a), p. 341 (2d ed. 2003). Specifically, where the conse-

quences of an action are commonly known, a trier of fact will often

infer that the person taking the action knew what the consequences

would be and acted with the purpose of bringing them about.”).

Farmer itself makes this very point when discussing deliberate in-

difference under the Eighth Amendment:

Whether a prison official had the requisite knowledge

of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference

from circumstantial evidence, and a factfinder may

conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious. Cf.

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4 JORDAN, J., Concurring 21-14275

[1 W.] LaFave & [A.] Scott, [Substantive Criminal

Law] § 3.7, p. 335 [(1996)] (“[I]f the risk is obvious, so

that a reasonable man would realize it, we might well

infer that [the defendant] did in fact realize it; but the

inference cannot be conclusive, for we know that peo-

ple are not always conscious of what reasonable peo-

ple would be conscious of ”). For example, if an

Eighth Amendment plaintiff presents evidence show-

ing that a substantial risk of inmate attacks was

“longstanding, pervasive, well-documented, or ex-

pressly noted by prison officials in the past, and the

circumstances suggest that the defendant-official be-

ing sued had been exposed to information concerning

the risk and thus ‘must have known’ about it, then

such evidence could be sufficient to permit a trier of

fact to find that the defendant-official had actual

knowledge of the risk.”

511 U.S. at 842–43 (some internal citations omitted).

Especially on summary judgment, where we must construe

the evidence in the light most favorable to the nonmoving party

and draw all reasonable inferences in her favor, see Marbury v. War-

den, 936 F.3d 1227, 1232 (11th Cir. 2019), circumstantial evidence of

the obviousness of the risk can create an issue of fact and/or sup-

port a decision in the plaintiff’s favor. See, e.g., Brown v. Hughes, 894

F.2d 1533, 1538–39 (11th Cir. 1990) (finding that a genuine issue of

material fact precluded summary judgment when the plaintiff

claimed that the prison official was present when his foot began to

“swell severely” the plaintiff told the official that “his foot felt as

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21-14275 JORDAN, J., Concurring 5

though it were broken,” and the official never called for medical

help); Goebert v. Lee Cnty., 510 F.3d 1312, 1328–29 (11th Cir. 2007)

(holding that a reasonable jury could conclude that a prison captain

was deliberately indifferent in failing to respond to an inmate for a

week, where the inmate complained that she was leaking amniotic

fluid and that she had miscarried in a similar way before). Moreo-

ver, because we cannot make credibility determinations or weigh

the evidence at summary judgment, see Baker v. Upson Regional Med-

ical Center, 94 F.4th 1312, 1317 (11th Cir. 2024), testimony by a de-

fendant that he was unaware of the plaintiff’s medical condition or

of the risk created by his own inaction does not warrant summary

judgment his favor when that testimony is rebutted by evidence

that the condition and associated risk of inaction were apparent.

See, e.g., Brown, 894 F.2d at 1538–39 (finding that a genuine issue of

material fact precluded summary judgment on the issue of defend-

ant’s subjective awareness, even when the defendant denied seeing

the inmate’s broken foot or being told that his foot was broken);

Goebert, 510 F.3d at 1328–29 (finding that a genuine issue of mate-

rial fact precluded summary judgment on the issue of defendant’s

subjective awareness, despite the defendant’s stated belief that the

inmate was lying).

Third, today’s opinion does not concern the Eighth Amend-

ment deliberate indifference standard for municipalities under Mo-

nell v. Department of Social Services of the City of New York, 436 U.S.

638 (1978), and City of Canton v. Harris, 489 U.S. 378 (1989). Farmer

set out the deliberate indifference standard for individuals who are

sued for Eighth Amendment violations, and today’s opinion does

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6 JORDAN, J., Concurring 21-14275

the same. In setting out the standard for individuals, the Supreme

Court in Farmer explained that the deliberate indifference standard

for municipal liability is objective, and then rejected the use of that

standard for individuals. See Farmer, 511 U.S. at 841 (“It would be

hard to describe the Canton understanding of deliberate indiffer-

ence, permitting liability to be premised on obviousness or con-

structive notice, as anything but objective. Canton’s objective

standard, however, is not an appropriate test for determining the

liability of prison officials under the Eighth Amendment as inter-

preted in our cases.”).

Our cases view the Eighth Amendment deliberate indiffer-

ence standard for municipalities as objective. See, e.g., Young v. City

of Augusta, 59 F.3d 1160, 1172 (11th Cir. 1995) (alleged denial of

medical care for inmate with mental illness: “Before it may be said

that a municipality has made a deliberate choice among alternative

courses of action, its policymakers must have had ‘actual or con-

structive notice that the particular omission is substantially certain

to result in the violation of the constitutional rights of their citi-

zens.’” (emphasis added) (citing Canton, 489 U.S. at 396 (O’Connor,

J., concurring in part and dissenting in part), which was in turn

cited with approval in Farmer, 511 U.S. at 841). And so do commen-

tators. See 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties

Litigation § 3:32 (2023–24 edition) (“The Farmer Court’s emphasis

on the essentially subjective nature of deliberate indifference in a

prison setting with respect to individual liability bears repeating,

especially since the Court sharply distinguished it from what it

termed the objective nature of the deliberate indifference inquiry

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21-14275 JORDAN, J., Concurring 7

in a local government failure to train context where the focus, pur-

suant to City of Canton v. Harris, is on the state of mind of a govern-

mental entity. According to the Court, the City of Canton inquiry

into deliberate indifference focuses on liability based on obvious-

ness or constructive notice.”) (emphasis in original and footnote

omitted); Barbara Kritchevsky, A Return to Owen: Depersonalizing

Section 1983 Municipal Liability Litigation, 41 Vill. L. Rev. 1381, 1436

(1996) (“Farmer categorizes Canton’s deliberate indifference stand-

ard as objective� � � � � �

Fourth, there remains an important practical point. What is

one to do with our post-Farmer cases using the “more than mere

negligence”/“more than gross negligence” formulations that we

now discard? Despite today’s opinion, district courts and attorneys

will, out of necessity, continue to turn for guidance to our deliber-

ate indifference cases from the last 30 years. They will not be able

to pretend that Eleventh Circuit jurisprudence constituted a vast

Eighth Amendment lacuna during that period. For example, they

will look to earlier cases to try to figure out whether a right was

clearly established for purposes of qualified immunity. My sugges-

tion, for whatever it might be worth, is that courts and attorneys

look carefully at prior Eleventh Circuit cases to see if they are con-

sistent with the subjective component of deliberate indifference set

out in Farmer. If they are consistent, then they should continue to

be cited as binding precedent. If they are not, then they probably

have been abrogated to at least some degree by today’s decision.

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21-14275 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, joined by JILL PRYOR, and ABUDU, Cir-

cuit Judges, Concurring:

A state eliminates all expenditures for prisoners’ medical

care—not to punish the prisoners but instead simply to use the

money for something else. As a result, a father in prison dies of

rheumatic fever, brought on by an untreated strep throat he caught

from another prisoner. A mother who’s not up to date on her vac-

cinations dies from tetanus after cutting herself on a rusty piece of

metal in the prison. And an eighteen-year-old kid dies of MRSA he

picked up in his cell. Of course, the state recognized when it erad-

icated the prison medical budget that, because of its actions, at least

some prisoners were likely to needlessly die or suffer life-changing

illnesses and conditions. But it never intended to punish prisoners

by eliminating medical treatment.

The Newsom Concurrence’s interpretation of the Eighth

Amendment allows all of this because the state didn’t intend to

punish prisoners when it eradicated medical care. See Newsom

Concurrence.

That’s just wrong. It fails to account for two independent

aspects of the Eighth Amendment’s text.

First, the Newsom Concurrence does not fully reckon with

the nature of “punishment.” Prison, for instance, is not some ab-

stract idea—it necessarily comes with a set of living conditions.

And so it is pure sophistry to divorce, at the very least, any life-

threatening or human-rights-threatening aspects of those living

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2 ROSENBAUM, J., Concurring 21-14275

conditions from the punishment of “prison” if the state knows of

those conditions when it requires a person to stay in a prison.

And second, the Newsom Concurrence reads “cruel and un-

usual” out of the Eighth Amendment. After all, even a punishment

that is not intended to be cruel and unusual may become so when

the state knows that the conditions that necessarily attend the sen-

tence disintegrate below “the minimal civilized measure of life’s

necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981)—whether

the state intends those conditions to be part of the punishment or

not. So a simple sentence of prison may not, in theory, violate the

Eighth Amendment. But it can become cruel and unusual if, for

instance, the state knows that prisoners will receive no medical

treatment for life- or limb-threatening illnesses, diseases, or condi-

tions and instead will have to suffer until they die or become disa-

bled from a treatable condition.

So while I concur in today’s opinion for the Court, I disagree

strongly with the Newsom Concurrence. And I write separately to

point out the errors and dangers in that Concurrence’s theory. Sec-

tion I of this Concurrence explains why the Newsom Concurrence

fails to account for the nature of “punishment” in its Eighth

Amendment analysis. And Section II shows that the Newsom Con-

currence improperly reads “cruel and unusual” out of its Eighth

Amendment interpretation.

I.

Precedent teaches what common sense instructs: when the

state punishes a person through imprisonment, its “punishment”

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21-14275 ROSENBAUM, J., Concurring 3

includes the state’s failures to prevent certain harms to those in its

custody.

To see this, we must understand what constitutes the “pun-

ishment” of imprisonment. Imprisonment is not, as the Newsom

Concurrence seems to posit, a psychological construct defined by

the state’s “intent.” Cf. Concurring Op. at 9. Rather, imprisonment

is a concrete “deprivation of . . . liberty,” bounded by cell walls and

armed guards. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting

Spicer v. Williamson, 131 S.E. 291, 293 (N.C. 1926)).

This deprivation includes both compulsions and restrictions.

Prisoners are compelled, among other things, to be in particular

places at particular times—they are assigned to live in a particular

cell in a particular prison. And prisoners are restricted from engag-

ing in certain activities and obtaining some goods and services (ei-

ther through explicit prohibitions or as the practical effect of the

compulsions I’ve mentioned). In other words, prisoners are forced

to endure the living conditions of their prison and are deprived of

the independent capacity to obtain medical care. Though not all

the conditions of confinement constitute “punishment,” see Wilson

v. Seiter, 501 U.S. 294, 301 n.2 (1991), those conditions that prison

officials know about “compose the punishment.” Rhodes, 452 U.S.

at 347; see also Wilson at 301 n.2.

That said, of course, certain deprivations are not—and in-

deed, constitutionally cannot be—part of the punishment of im-

prisonment. The Supreme Court has long tied the Eighth Amend-

ment’s prohibition of “cruel and unusual punishments” to the

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4 ROSENBAUM, J., Concurring 21-14275

“evolving standards of decency that mark the progress of a matur-

ing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opin-

ion). No wonder. The definition of what’s “cruel” depends on

these “standards of decency.” That is, we consider a punishment

to be “cruel” in no small part because it fails to comport with “stand-

ards of decency.”

Estelle recognized that these standards of decency incorpo-

rated an “obligation to provide medical care for those whom [the

state] is punishing by incarceration.” 429 U.S. at 103. That is be-

cause “the prisoner . . . cannot by reason of the deprivation of his

liberty . . . care for himself.” Id. (quoting Spicer v. Williamson, 131

S.E. 291, 293 (N.C. 1926)). As Chief Justice Rehnquist wrote for the

Court, “when the State . . . so restrains an individual’s liberty that

it renders him unable to care for himself, and at the same time fails

to provide for his basic human needs . . . it transgresses the substan-

tive limits of state action set by the Eighth Amendment . . . .”

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200

(1989). In the context of the state’s near-total control over prison-

ers’ lives, the state takes on the obligation to provide medical

care—precisely because it cannot constitutionally punish criminals by

preventing them from obtaining care. 1

1 One odd result of the Newsom Concurrence’s view is that the Cruel and

Unusual Punishments Clause could bar the state from punishing a criminal by

forbidding him from receiving any medical care while otherwise allowing him

to go free but still permit the state to imprison that person in a facility that just

so happens not to offer any way to obtain care, even though the latter punish-

ment includes and is worse than the former.

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21-14275 ROSENBAUM, J., Concurring 5

For this reason, the state’s punishment of imprisonment

does not include a prohibition on receiving medical care, because

it constitutionally cannot. But when prison officials knowingly fail

to meet the state’s obligation to provide medical care—an obliga-

tion that, once again, arises from the “state action” of imprison-

ment that prevents those behind bars from obtaining their own

care, DeShaney, 489 U.S. at 200—that failure becomes part of the

punishment of prison.

The Newsom Concurrence says that “punishment” requires

an “element of intentionality.” Concurring Op. at 2. But the state’s

“punishment” is prison, and the state very much intends prisoners

to stay there. (Watch what happens when one tries to leave.) The

Newsom Concurrence doesn’t explain why this isn’t enough intent

for known life- or human-rights-threatening conditions accompa-

nying a prison sentence to be part of the punishment.

In fact, the Newsom Concurrence never even tries to ex-

plain why the state’s punitive intent must be so specific as to extend

to its failure to try to stop medically preventable tragedies among

its wards. And why stop there? The Newsom Concurrence also

doesn’t explain why, under its theory, an even more granular no-

tion of intent would not be necessary to violate the Eighth Amend-

ment. A prison doctor punitively denies treatment for a prisoner’s

serious and festering infection, intending that the prisoner will suf-

fer overnight and the doctor will treat the infection the next day,

but the prisoner dies before morning. Is this punishment? At the

very least, the death part isn’t under the Newsom Concurrence

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6 ROSENBAUM, J., Concurring 21-14275

because the doctor didn’t intend for the prisoner to die as punish-

ment. Yet any competent doctor knows that the longer a serious

infection festers, the more life- and limb-threatening it can become.

Defining punishment solely by “intent to punish” does little to clar-

ify what mens rea is necessary for official (in)action to constitute a

punishment, let alone clarify what, generally, is a punishment.

To the extent the Newsom Concurrence’s intent require-

ment is vague, perhaps it is because it fits oddly within our system

of separated powers to think of prison officials having an independ-

ent intent to punish their wards. The legislature determines the

punishments for crimes; the judiciary determines when a punish-

ment should be imposed. At the federal level, the Bureau of Pris-

ons carries out these punishments, “ensuring that federal offenders

serve their sentences of imprisonment in facilities that are safe, hu-

mane, cost-efficient, and appropriately secure.” About Our Agency,

FED. BUREAU OF PRISONS, https://perma.cc/JSN4-PCD7. But

prison administration, collectively and individually, does not take

“vengeance” or enact “retribution” for crimes, because (unlike the

legislature and judiciary) it does not act in light of its own evalua-

tion of wrongdoing.2 To say otherwise would make prison officials

2 The exception is when a prison official determines how to sanction a prisoner

for that prisoner’s misconduct within prison. But of course, this proves the

rule: generally, prison officials are not intending to punish in the sense of hav-

ing a purpose to deter or chastise particular conduct.

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21-14275 ROSENBAUM, J., Concurring 7

judges or legislators, weighing whether a prisoner’s crimes merit

particular deprivations. 3

So perhaps it’s not surprising that precedent makes clear that

that prison officials don’t need some specific punitive intent for

their actions or inactions to be part of the “punishment” they are

administering. Instead, when government officials responsible for

carrying out punishment deliberately fail to provide prisoners with

necessary medical treatment that the state does not intend to with-

hold as punishment, that failure becomes part of the punishment.

II.

The Newsom Concurrence’s crabbed misunderstanding of

“punishment” is related to its other analytic error: reading “cruel

and unusual” out of the Cruel and Unusual Punishments Clause.

The Concurrence has little to say about the “cruel and unu-

sual” part of the Eighth Amendment. But the phrase preceding

“punishments” is critical to its meaning, not least because “cruel”

seems a more natural place to find a scienter requirement than

“punishment.”

3 Another way to conceptualize this issue is to note that the Eighth Amend-

ment incorporates an “anti-discretion norm,” stretching back to the 1689 Eng-

lish Bill of Rights. Donald A. Dripps, The “Cruel and Unusual” Legacy of the Star

Chamber, 1 J. AM. CONST. HIST. 139, 143 (2023) (emphasis in original). When

prison officials act with deliberate indifference towards prisoners’ serious med-

ical needs, they go beyond their limited discretion in administering criminal

sentences.

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8 ROSENBAUM, J., Concurring 21-14275

After all, during the Bill of Rights era, “cruel” meant

“[p]leased with hurting others; inhuman; hard-hearted; void of

pity; wanting compassion; savage; barbarous; unrelenting,” or,

“[o]f things,” “[b]loody; mischievous, destructive; causing pain.”

See 1 Samuel Johnson, Dictionary of the English Language 518 (6th ed.

1785). These definitions—all of them, but especially words and

phrases like “inhuman,” “hard-hearted,” “void of pity,” and “want-

ing compassion”—point to a particular attitude towards the suffer-

ing of others; they don’t necessarily mean proactively trying to in-

crease suffering, but rather, being deliberately indifferent to pain

that most others would seek to alleviate, if they had the power and

(especially) the responsibility to do so. This attitude, of course, is

precisely what the “deliberate indifference” touchstone for prison

medical-mistreatment claims captures. Estelle, 429 U.S. at 104.

Why deliberate indifference as the standard, rather than neg-

ligence or intent? The Supreme Court has suggested that mere ac-

cidents, the products of negligence, do not result from “the culpa-

ble state of mind necessary for the punishment to be regarded as

‘cruel.’” Wilson, 501 U.S. at 297. That’s because cruelty inheres in

not only an action’s physical effects but also its emotional content.

Everyone—and maybe especially a prisoner—knows the difference

between an accident and the type of deliberately indifferent con-

duct revealing a deep disregard for his basic wellbeing. When that

disregard comes from someone who is both responsible for and in

control of another’s health, it can only be described as cruel. In-

deed, the message sent by a prison guard who repeatedly ignores

his ward’s pleas for necessary medical attention is not unlike the

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21-14275 ROSENBAUM, J., Concurring 9

one the torturer sends to his victim upon the rack: “I see your pain

but I don’t care.” 4

But this also shows why prison officials’ actions need not be

intentional to be cruel and unusual. Imprisonment punishes by

substituting control for liberty. Ordinarily, that control is accom-

panied by some degree of care, including medical care. But when

one’s captor opts not to provide necessary and available medical

care, he turns the punishment of imprisonment into a cruel one—

regardless of his purpose or intent in not providing treatment. Af-

ter all, what difference does it make to the prisoner whether the

official who controls his wellbeing intends him to suffer or simply

does not care if he does? Either way, his outcome will be the same,

and there is little he can do to change it. And the prisoner will, by

state mandate, remain dependent for his basic needs on someone

who is at best indifferent to those needs. To impose upon someone

that sort of existential uncertainty is cruel and unusual; when the

state does it to a prisoner, it is cruel and unusual punishment.

III.

4 This also explains the Supreme Court’s adoption of the criminal law’s stand-

ard for recklessness—requiring the defendant’s subjective awareness of a sub-

stantial risk—rather than the civil law’s objective standard in deliberate-indif-

ference claims (which are, after all, civil). See Farmer v. Brennan¸ 511 U.S. 825,

837–39 (1994). A warden who knows of and ignores a substantial risk is cruel;

a warden who should have known of a risk is incompetent and hardly “com-

mend[able],” but not cruel. Id. at 838. The latter says, “I can’t care for you;”

the former, “I don’t care about you.”

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10 ROSENBAUM, J., Concurring 21-14275

Our justice system routinely asks lawbreakers to “take re-

sponsibility for their actions.” But the Newsom Concurrence’s

view of the Eighth Amendment would allow prison officials to

avoid responsibility for theirs. And by letting off the hook those

who actually administer the state’s punishments, this view seeks to

absolve all of us—judges, legislators, citizens—of responsibility for

what happens in the state-run facilities we call prisons. As today’s

decision reiterates, our Constitution demands more.

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21-14275 Newsom, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

Today, the Court wisely repudiates its long-confused delib-

erate-indifference caselaw, which has for years bounced around be-

tween “more than mere negligence” and “more than gross negli-

gence” standards, and adopts instead the criminal-recklessness test

prescribed by the Supreme Court’s decision in Farmer v. Brennan,

511 U.S. 825 (1994). It’s an important step toward righting our

Eighth Amendment jurisprudence.

I’d like, though, to explore a more foundational question: Is

any negligence- or recklessness-based standard consistent with the

plain language of the Eighth Amendment, which by its terms ap-

plies only to the “inflict[ion]” of “punishments”? The answer, I

think, is pretty clearly no. Just as a parent can’t accidentally punish

his or her child, a prison official can’t accidentally—or even reck-

lessly—“punish[]” an inmate.1

I

The Eighth Amendment states that “[e]xcessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. To my mind, it is

1 In response to Judge Rosenbaum’s concurring opinion, supra, I’ll say only

this: Perhaps she has convinced some that the position I lay out here is unpal-

atable; she hasn’t convinced me, at least, that it’s wrong, as a matter of either

the Eighth Amendment’s plain text or its original understanding. Cf. Hillcrest

Prop., LLP v. Pasco Cnty., 915 F.3d 1292, 1303 (11th Cir. 2019) (Newsom, J., con-

curring in the judgment) (“Not everything that s[tink]s violates the Constitu-

tion.”).

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2 Newsom, J., Concurring 21-14275

fairly well-established that, as originally understood, the Amend-

ment’s Cruel and Unusual Punishments Clause prohibited only cer-

tain particularly objectionable methods of punishment imposed in

conjunction with a criminal defendant’s judgment of conviction. It

did not, for instance, entail a proportionality principle that empow-

ered judges to determine that a particular penalty was excessive in

relation to a particular crime, nor did it purport to regulate the con-

ditions of a prisoner’s confinement. I won’t reinvent the wheel; I’ll

simply say that I find myself persuaded by Justice Scalia’s thorough

analysis in Harmelin v. Michigan, 501 U.S. 957, 961–85 (1991) (Scalia,

J.); see also, e.g., Anthony F. Granucci, Nor Cruel and Unusual Punish-

ments Inflicted: The Original Meaning, 57 Calif. L. Rev. 839 passim

(1969). Be that as it may, the Supreme Court has moved on. It has

read the Clause more broadly, not only to embrace a proportional-

ity criterion, see Gre v. Georgia, 428 U.S. 153, 172 (1976), but also to

“appl[y] to some deprivations that were not specifically part of the

sentence but were suffered during imprisonment,” see Wilson v.

Seiter, 501 U.S. 294, 297 (1991), and, even more generally, to em-

body a fuzzy, eye-of-the-beholder “evolving standards of decency”

criterion, see Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opin-

ion).

It remains the case, though, that the Eighth Amendment, by

its plain terms, applies only to “punishments.” And whatever the

proper understanding of the phrase-of-art “cruel and unusual pun-

ishments,” the word “punishment[]” had—and has—a settled

meaning. Samuel Johnson’s 1785 English dictionary, for instance,

defined it as “[a]ny infliction or pain imposed in vengeance of a

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21-14275 Newsom, J., Concurring 3

crime.” 2 Samuel Johnson, Dictionary of the English Language 424

(6th ed. 1785). And nearly two centuries later, Americans were still

using the term in fundamentally the same way to mean a “[p]enalty

[or a] retributive suffering, pain, or loss.” Punishment, Webster’s

New International Dictionary (2d ed. 1934). It seems undeniable

to me that both of those definitions—and others like them—de-

note an element of intentionality. And that seems all the more un-

deniable in the specific context of the Eighth Amendment, which

addresses not just “punishments” simpliciter, but their “in-

flict[ion],” a term that likewise indicates purposeful, directed con-

duct. See 1 Samuel Johnson, Dictionary of the English Language 1040

(6th ed. 1785) (defining “inflict” to mean “[t]o put in act or impose

as punishment”); accord Noah Webster, An American Dictionary of

the English Language 968 (1828) (“Inflict, verb transitive: To lay on; to

throw or send on; to apply; as, to inflict pain or disgrace; to inflict

punishment on an offender.”).

To be clear, I’m hardly the first person to make this observa-

tion about the Cruel and Unusual Punishments Clause’s text. Writ-

ing for the Second Circuit in Johnson v. Glick, Judge Friendly empha-

sized that “[t]he thread common to all [Eighth Amendment] cases

is that ‘punishment’ has been deliberately administered for a penal

or disciplinary purpose.” 481 F.2d 1028, 1032 (2d Cir. 1973). Even

more directly to the point, Judge Posner has explained, pointing to

what he called “normal meaning[],” that “[t]he infliction of punish-

ment is a deliberate act intended to chastise or deter.” Duckworth

v. Franzen, 780 F.2d 645, 651–52 (7th Cir. 1985). That, he correctly

said, “is what the word means today; it is what it meant in the

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4 Newsom, J., Concurring 21-14275

eighteenth century.” Id. at 652 (citing Samuel Johnson, Dictionary

of the English Language (1755)). And Justice Scalia, writing for the

Supreme Court in Wilson v. Seiter—citing and quoting, among oth-

ers, Judges Friendly’s and Posner’s observations and adding his own

emphasis for good measure—indicated that the Eighth Amend-

ment entails an “intent requirement” and clarified that “[t]he

source of t[hat] requirement is not the predilections of this Court,

but the Eighth Amendment itself, which bans only cruel and unu-

sual punishment.” 501 U.S. at 300. 2

The unmistakable linguistic fact that the term “punishment”

entails an intentionality element would seem to preclude any legal

standard that imposes Eighth Amendment liability for uninten-

tional conduct, no matter how negligent (whether “mere[ly]” or

“gross[ly]” so) or even criminally reckless. Negligence and reck-

lessness, after all, are expressly defined in contradistinction to inten-

tional conduct. See, e.g., Negligence, Black’s Law Dictionary (10th

2 Tellingly, even those who contend that the constitutional term “cruel”

should be understood by reference to a punishment’s effect on the punished,

rather than to the punisher’s particular motivation, acknowledge my funda-

mental point—that, by definition, “all punishment involves intent.” John F.

Stinneford, The Original Meaning of “Cruel”, 105 Geo. L.J. 441, 479 (2017). They

admit that under “the Eighth Amendment’s intent requirement,” “[t]o violate

the Cruel and Unusual Punishments Clause, some government official must

intend to punish”; they just deny that the Clause requires the further proof

that the official “intend[ed] to punish cruelly.” Id. at 493 (emphasis added).

Accord, e.g., John F. Stinneford, Is Solitary Confinement a Punishment?, 115 Nw.

L. Rev. 9, 17 (2020) (reviewing historical and modern definitions of “punish-

ment” and concluding that the term “involves intent to inflict pain or suffer-

ing, [just] not necessarily culpable intent”).

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21-14275 Newsom, J., Concurring 5

ed. 2015) (“[A]ny conduct that falls below the legal standard estab-

lished to protect others against unreasonable risk of harm, except

for conduct that is intentionally, wantonly, or willfully disregardful of oth-

ers’ rights.” (emphasis added)); Recklessness, id. (“Recklessness in-

volves a greater degree of fault than negligence but a lesser degree of

fault than intentional wrongdoing.” (emphasis added)).

So on a plain reading, the Cruel and Unusual Punishments

Clause applies only to penalties that are imposed intentionally and

purposefully.

II

How is it, then, that we now find ourselves grinding over

which among several negligence- or recklessness-based standards

should govern a particular species of Eighth Amendment claim?

When and where did things go so wrong? It started innocently

enough, with Estelle v. Gamble, 429 U.S. 97 (1976), in which the Su-

preme Court minted what it dubbed (and we still call) a “deliberate

indifference” claim under the Eighth Amendment. There, the

Court was pretty good about minding the line between intentional

and negligent conduct—but it sowed seeds that would later flower

into a clean break from the text’s intentionality criterion. On the

one hand, the Estelle Court made clear that ordinary negligence

does not constitute “punishment” within the meaning of the

Eighth Amendment: Neither “[a]n accident” nor “an inadvertent

failure to provide adequate medical care,” it said—even one that

would give rise to a “[m]edical malpractice” claim—crosses the

constitutional line. Id. at 105–06. And, in fact, in describing the

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6 Newsom, J., Concurring 21-14275

types of conduct that could “manifest[]” sufficiently culpable con-

duct, the Court twice adverted to purposeful actions: prison

guards “intentionally denying or delaying access to medical care or

intentionally interfering with the treatment once prescribed.” Id. at

104–05 (emphasis added). On the other hand, though, the Court

also repeated language from its “evolving standards of decency”

line of decisions asserting that the “unnecessary and wanton inflic-

tion of pain” could give rise to an Eighth Amendment claim. Id. at

103 (emphasis added) (quoting Gre, 428 U.S. at 173). “Wanton”-

ness is a heightened mental state, to be sure, but it’s not the same

thing as intent or purpose.

Next came Wilson v. Seiter, to which I’ve already referred. Re-

spectfully, Wilson is an odd opinion. The question there was

whether an ordinary conditions-of-confinement claim should be

decided under Estelle’s “deliberate indifference” standard—what-

ever its precise parameters—or instead under a higher standard that

applies when “officials act in response to a prison disturbance,” in

which the complaining inmate must prove that officers acted “ma-

liciously and sadistically for the very purpose of causing harm.”

501 U.S. at 302 (quoting Whitley v. Albers, 475 U.S. 312, 320–21

(1986)). In the course of its opinion, the Court nodded strongly

toward a true intentionality criterion. As already noted, the Court

stated that the source of what it called “the intent requirement”

was “the Eighth Amendment itself, which bans only cruel and un-

usual punishment,” id. at 300, and went on to quote favorably Judge

Posner’s definition of the term “punishment” as “a deliberate act

intended to chastise or deter,” as well as Judge Friendly’s

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21-14275 Newsom, J., Concurring 7

observation that “punishment” is “deliberately administered for a

penal or disciplinary purpose,” id. (quoting Duckworth, 780 F.2d at

652, and Glick, 481 F.2d at 1032, respectively).

Strangely, though, having made the case—and a convincing

one—that “[a]n intent requirement is . . . implicit in the word ‘pun-

ishment,’” id. at 301, the Wilson Court then pivoted, in the second

part of its opinion, to decide what it (somewhat inconsistently) pre-

sented as an open question: “[I]t remains for us to consider what

state of mind applies in cases challenging prison conditions” as vi-

olative of the Eighth Amendment. Id. at 302. And in answer to

that question, the Court deferred to language in its earlier decisions

(including Estelle) rather than the language of the Constitution it-

self: “[O]ur cases say that the offending conduct must be wanton.”

Id. In particular, the Wilson Court said that the form of wantonness

to which Estelle had adverted was sufficient: In the ordinary prison-

conditions “context, as Estelle held, ‘deliberate indifference’ would

constitute wantonness.” Id.

Lastly—in the Supreme Court, anyway—came Farmer, the

basis for today’s decision. There, the Court set out to specify “the

proper test for deliberate indifference,” as adopted in Estelle and se-

conded in Wilson. 511 U.S. at 834. Canvassing its earlier caselaw,

the Court opted for a standard “lying somewhere between the

poles of negligence at one end and purpose or knowledge at the

other,” settling on one that it loosely called “recklessness.” Id. at

836. More precisely, as today’s majority opinion explains, the

Farmer Court embraced a criminal-recklessness standard, which, it

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8 Newsom, J., Concurring 21-14275

said, requires a complaining prisoner to prove that the prison offi-

cial whose conduct he challenges subjectively “kn[ew] of and dis-

regard[ed] an excessive risk to inmate health or safety.” Id. at 837.

In justifying its choice, the Court repeatedly adverted to the Eighth

Amendment’s language—noting, for instance, that it “does not

outlaw cruel and unusual ‘conditions’” but only “cruel and unusual

‘punishments.’” Id. It never explained, though, how the criminal-

recklessness standard that it embraced followed from the text itself.

Rather, the most the Court could muster was that “subjective reck-

lessness as used in the criminal law is a familiar and workable stand-

ard that is consistent with the Cruel and Unusual Punishments

Clause as interpreted in our cases”—that is, as glossed in decisions

like Estelle and Wilson. Id. at 839–40 (emphasis added). Having said

so, the Farmer Court “adopt[ed]” criminal recklessness “as the test

for ‘deliberate indifference’ under the Eighth Amendment.” Id. at

840.

With Farmer, the retreat from the Eighth Amendment’s

“punishment” requirement—and the intentionality criterion that it

indicates—was complete. And our own post-Farmer decisions only

widened the gap between text and doctrine. For nearly three dec-

ades, we messed around with negligence-based tests—“more than

mere,” “more than gross,” etc. Today, we have wisely—and fi-

nally—brought ourselves into compliance with Farmer’s criminal-

recklessness criterion. It’s an important step, but we—as what the

Constitution calls an “inferior [c]ourt”—have now gone as far as we

can go. If Eighth Amendment doctrine is to be brought into com-

pliance with the Eighth Amendment’s text, it’ll be up to the

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21-14275 Newsom, J., Concurring 9

Supreme Court. As I see it, though, there’s simply no denying that,

as a matter of both language and logic, the Amendment’s “punish-

ment” requirement demands proof of intentionality.

III

Maybe it makes sense to hold prison officials liable for negli-

gently or recklessly denying inmates appropriate medical care.

Maybe not. But any such liability, should we choose to recognize

it, must find a home somewhere other than the Eighth Amend-

ment. We—by which I mean the courts generally—have been ig-

noring that provision’s text long enough. Whether we like it or

not, the Cruel and Unusual Punishments Clause applies, as its mon-

iker suggests, only to “punishments.” And whether we like it or

not, “punishment[]” occurs only when a government official acts

intentionally and with a specific purpose to discipline or deter.