Amicus Curiae Brief — County of Orange, California, et al., Petitioners v. Mary Gordon, Individually and as Successor in Interest to Matthew Shawn Gordon, Deceased

No. 18-337

IN THE

Supreme Court of the United States

――――――――――――

COUNTY OF ORANGE, CALIFORNIA, ET AL.,

Petitioners,

v.

MARY GORDON, INDIVIDUALLY AND AS SUCCESSOR IN

INTEREST TO MATTHEW SHAWN GORDON, DECEASED,

Respondent.

_______________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_________________

BRIEF OF INDIANA, HAWAII, AND TEXAS

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

__________________________

Office of the Attorney General

IGC South, Fifth Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

Counsel for Amici States

CURTIS T. HILL, JR.

Attorney General

THOMAS M. FISHER*

Solicitor General

AARON T. CRAFT

KIAN J. HUDSON

JULIA C. PAYNE

Deputy Attorneys

General

* Counsel of Record

Additional counsel with signature block

i

QUESTION PRESENTED

Whether a pretrial detainee’s “inadequate medical

care” claim pursuant to 42 U.S.C. § 1983 requires a

showing of a jail professional’s subjective intent in delivering care or whether an objective “unreasonableness” standard is sufficient.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iv

INTEREST OF THE AMICI STATES .................... 1

SUMMARY OF THE ARGUMENT ......................... 2

REASONS TO GRANT THE PETITION ................ 4

I. The Court Should Resolve the Split over the

Proper Standard for Constitutionally

Adequate Medical Care for Detainees ............... 4

A. The Court’s competing lines of doctrine

and reluctance to address the

constitutional standard of medical care

for detainees have sown confusion ............... 5

B. States need stability, certainty, and

uniformity in the constitutional standard

governing the provision of medical care to

persons who are in state custody. ............... 13

II. The Decision Below Is Wrong........................... 19

A. No constitutional or logical reason justifies

different standards for inadequatemedical-care claims brought by convicted

prisoners and pretrial detainees ................. 19

iii

B. The deliberate-indifference standard is

appropriate for evaluating pretrial

detainees’ inadequate-medical-care

claims ........................................................... 23

CONCLUSION ....................................................... 24

iv

TABLE OF AUTHORITIES

CASES

Alderson v. Concordia Parish Correctional

Facility,

848 F.3d 415 (5th Cir. 2017) (per curiam) ..........10

Bell v. Wolfish,

441 U.S. 520 (1979) ...................................... passim

Brower v. County of Inyo,

489 U.S. 593 (1989) ..............................................17

Brown v. Harris,

240 F.3d 383 (4th Cir. 2001)..................................9

Bruno v. City of Schenectady,

727 F. App’x 717 (2d Cir. 2018) ...........................11

Butler v. Fletcher,

465 F.3d 340 (8th Cir. 2006)..................................9

Caiozzo v. Koreman,

581 F.3d 63 (2d Cir. 2009) .....................................9

California v. Hodari D.,

499 U.S. 621 (1991) ..............................................17

Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016) (en banc) .......11, 17

City of Canton v. Harris,

489 U.S. 378 (1989) ................................................8

v

CASES [CONT’D]

City of Revere v. Massachusetts General

Hospital,

463 U.S. 239 (1983) ......................................8, 9, 19

Clark v. Colbert,

895 F.3d 1258 (10th Cir. 2018)............................10

Clouthier v. County of

Contra Costa, 591 F.3d 1232 (9th Cir. 2010) ........9

Coscia v. Town of Pembroke,

659 F.3d 37 (1st Cir. 2011) (Souter, J.) .................9

County of Sacramento v. Lewis,

523 U.S. 833 (1998) ...................................... passim

Dang v. Sheriff, Seminole County Fla.,

871 F.3d 1272 (11th Cir. 2017)............................10

Daniels v. Williams,

474 U.S. 327 (1986) ..............................................17

Darnell v. Pineiro,

849 F.3d 17 (2d Cir. 2017) ....................... 10, 11, 12

DeShaney v. Winnebago Cnty. Soc. Servs.

Dep’t,

489 U.S. 189 (1989) .................................. 19, 22, 23

Cook ex rel. Estate of Tessier v. Sheriff of

Monroe County,

402 F.3d 1092 (11th Cir. 2005)..............................9

vi

CASES [CONT’D]

Estelle v. Gamble,

429 U.S. 97 (1976) ........................................ passim

Farmer v. Brennan,

511 U.S. 825 (1994) ...................................... passim

Florence v. Bd. of Chosen Freeholders,

566 U.S. 318 (2012) ..............................................14

Hare v. City of Corinth,

74 F.3d 633 (5th Cir. 1996) (en banc) ...................9

Helling v. McKinney,

509 U.S. 25 (1993) ..................................................6

Hudson v. McMillian,

503 U.S. 1 (1992)....................................................7

Ingraham v. Wright,

430 U.S. 651 (1977) ................................................8

Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015).................................. passim

Martinez v. Beggs,

563 F.3d 1082 (10th Cir. 2009)..............................9

Miranda v. County of Lake,

900 F.3d 335 (7th Cir. 2018),

reh’g en banc denied................................. 10, 12, 17

Miranda-Rivera v. Toledo-Davila,

813 F.3d 64 (1st Cir. 2016) ..................................10

vii

CASES [CONT’D]

Phillips v. Roane County,

534 F.3d 531 (6th Cir. 2008)..................................9

Procunier v. Martinez,

416 U.S. 396 (1974) ........................................13, 23

Rhodes v. Chapman,

452 U.S. 337 (1981) ..........................................6, 24

Rochin v. California,

342 U.S. 165 (1952) ..............................................23

Smith v. Sangamon Cnty. Sheriff’s Dep’t,

715 F.3d 188 (7th Cir. 2013)..................................9

Turner v. Safley,

482 U.S. 78 (1987)................................................13

Whitley v. Albers,

475 U.S. 312 (1986) .................................... 7, 10, 22

Whitney v. City of St. Louis,

887 F.3d 857 (8th Cir. 2018)................................10

Wilson v. Seiter,

501 U.S. 294 (1991) .................................... 6, 20, 21

Woloszyn v. County of Lawrence,

396 F.3d 314 (3d Cir. 2005) ...................................9

STATUTES

42 U.S.C. § 1983 ..........................................................4

Cal. Penal Code § 4007 ...............................................1

viii

STATUTES [CONT’D]

Fla. Stat. Ann. § 944.17 ..............................................2

Idaho Code Ann. § 20-604 ...........................................1

Ind. Code § 34-18-1-1 et seq. .....................................18

Ind. Code § 35-33-11-1 ................................................1

Iowa Code Ann. § 812.6(2)(a) ......................................1

Ky. Rev. Stat. Ann. § 441.540 .....................................1

Md. Code Ann., Corr. Servs. § 9-303 ..........................1

Mich. Comp. Laws Ann. § 801.55(g) ...........................1

Minn. Stat. Ann. § 243.91 ...........................................1

N.H. Rev. Stat. Ann. § 21-H:8(VI) ..............................1

N.M. Stat. Ann. § 33-3-15 ...........................................1

Nev. Rev. Stat. Ann. § 209.311 ...................................1

61 Pa. Cons. Stat. Ann. § 1151(a) ...............................1

S.C. Code Ann. § 24-5-210(C) .....................................1

Va. Code Ann. § 53.1-21 ..........................................1, 2

ix

RULES

Supreme Court Rule 37.2(a) ...................................... 1

OTHER AUTHORITIES

Am. Med. Ass’n, Medical Liability Reform—

Now! (2018 ed.) ....................................................18

Jean Macchiaroli Eggen, Medical

Malpractice Screening Panels: An

Update and Assessment,

6 J. Health & Life Sci. L. 1 (2013) .......................18

Christian Henrichson et al., Vera Inst. of

Justice, The Price of Jails: Measuring the

Taxpayer Cost of Local Incarceration (2015) ......15

F. Patrick Hubbard, The Nature & Impact

of the “Tort Reform” Movement,

35 Hofstra L. Rev. 437 (2006)..............................18

Tracey Kyckelhahn, U.S. Dep’t of Justice,

Local Government Corrections

Expenditures, FY 2005–2011 (2013) ...................15

Scott H. Moulton, USLAW Network,

Compendium of Law: 50-State Analysis

of Liability Damages Cap (2017) .........................18

Pew Charitable Trusts & MacArthur

Foundation, State Prison Health Care

Spending (2014) ...................................................13

Pew Charitable Trusts, Jails: Inadvertent

Health Care Providers 3 (2018) .....................14, 15

x

OTHER AUTHORITIES [CONT’D]

Pew Charitable Trusts, Prison Health Care:

Costs and Quality (2017) ........................... 1, 13, 14

U.S. Gov’t Accountability Office, GAO-17-379,

Bureau of Prisons: Better Planning and

Evaluation Needed to Understand and

Control Rising Inmate Health Care Costs

(2017) ....................................................................14

Zhen Zeng, U.S. Dep’t of Justice,

Jail Inmates in 2016 (2018) ................................14

1

INTEREST OF THE AMICI STATES1

The States of Indiana, Hawaii, and Texas respectfully submit this brief as amici curiae in support of

Petitioners.

Although the responsibility for housing and

providing medical care to pretrial detainees usually

falls to counties and other municipal bodies, at least

twenty States house pretrial detainees in state correctional facilities alongside convicted prisoners. Several

States—Alaska, Connecticut, Delaware, Hawaii,

Rhode Island, and Vermont—have unified, state-run

corrections systems in which the State houses all pretrial detainees and convicted prisoners. See Pew

Charitable Trusts, Prison Health Care: Costs and

Quality 58 (2017). Yet even in States without unified

systems, comingling may occur under “safekeeper

statutes,” which authorize local jails to transfer detainees to state correctional facilities if the inmate is

in danger or poses a danger to others in the local jail.

See, e.g., Cal. Penal Code § 4007; Idaho Code Ann.

§ 20-604; Ind. Code § 35-33-11-1; Iowa Code Ann.

§ 812.6(2)(a); Ky. Rev. Stat. Ann. § 441.540; Md. Code

Ann., Corr. Servs. § 9-303; Mich. Comp. Laws Ann.

§ 801.55(g); Minn. Stat. Ann. § 243.91; Nev. Rev. Stat.

Ann. § 209.311; N.H. Rev. Stat. Ann. § 21-H:8(VI);

N.M. Stat. Ann. § 33-3-15; 61 Pa. Cons. Stat. Ann.

§ 1151(a); S.C. Code Ann. § 24-5-210(C); Va. Code

1 Pursuant to Supreme Court Rule 37.2(a), counsel of record for

all parties have received notice of the Amici States’ intention to

file this brief at least 10 days prior to the due date of this brief.

2

Ann. § 53.1-21. Only Florida categorically bars transferring pretrial detainees to state-run correctional facilities. Fla. Stat. Ann. § 944.17.

States accordingly have an interest in ensuring

that prison officials and medical personnel operate

under a clear and consistent constitutional standard

regarding the provision of medical care. The Court

has held that prison officials’ deliberate indifference

to the serious medical needs of a convicted prisoner

violates the Eighth Amendment. Estelle v. Gamble,

429 U.S. 97, 104 (1976). To prevail on a deliberateindifference claim, a convicted prisoner must prove

that the defendant actually knew of and disregarded

an objectively serious risk of substantial harm.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). The

amici States, who share with local governments the

substantial practical difficulties in caring for mixed

inmate populations, urge the Court to adopt a substantially similar standard for addressing pretrial detainees’ claims of constitutionally inadequate medical

care.

SUMMARY OF THE ARGUMENT

The Court has never squarely addressed the appropriate constitutional standard for pretrial detainees’ challenges to their medical care. It has held that

States must provide medical care to detainees, but it

has declined to address whether detainees’ claims alleging inadequate medical care are governed by the

deliberate-indifference standard of Estelle v. Gamble,

429 U.S. 97 (1976), or some other standard.

3

Until recently, the circuits unanimously agreed

that Estelle’s deliberate-indifference standard governs convicted prisoners’ and pretrial detainees’

claims of inadequate medical care. But in the past two

years, three circuits have read Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)—an excessive-force case—

to require, for pretrial detainees’ claims, a less-demanding standard that turns exclusively on the objective reasonableness of the medical care. Four other

circuits, meanwhile, have expressly rejected calls to

modify or jettison the deliberate-indifference standard on the basis of Kingsley.

The Court should resolve the circuit split now. Employing a watered-down, objective-reasonableness

standard to pretrial detainees’ constitutional challenges to their medical care will exacerbate the toll on

the States’ thinly stretched resources. It will create

incentives for inmates to bring more claims—a

greater percentage of which will require substantial

resources for expert testimony—the result of which

may be deterrence of quality medical professionals

from working in prisons and jails. In addition, a constitutionalized objective-reasonableness standard

would place state medical negligence tort-reform

measures at risk of becoming obsolete for pretrial detainees, as it would permit detainees to masquerade

their ordinary medical-malpractice claims as federal

due process claims immune to state tort-reform laws.

Certiorari is warranted also because the Ninth,

Seventh, and Second Circuits erroneously premised

their decisions on Kingsley, which is an excessiveforce case, not a conditions-of-confinement case—let

alone a medical-care case. There is no justification for

4

separate standards for detainees and convicted prisoners when it comes to the constitutional standard

governing claims of inadequate medical care. The fact

of confinement triggers the State’s duty to provide

medical care, and that duty has nothing to do with an

inmate’s more specific status as a detainee or a convict.

The Court has long rejected constitutionalizing

medical malpractice standards for inmates, but the

objective-reasonableness standard accomplishes exactly that. The Ninth Circuit attempts to avoid that

outcome by incorporating from Kingsley the requirement that the defendant must have performed an intentional act. Yet while intentionality may be a meaningful issue in excessive-force cases, it will rarely if

ever arise in medical-care cases. Correctional officers

might accidentally trip and land on an inmate, but

physicians and nurses do not inadvertently write prescriptions or issue medical orders.

The circuit split, the potential effects on the States

within the Ninth, Seventh, and Second Circuits, and

the infirmities in the Ninth Circuit’s decision below,

all justify the Court’s prompt review.

REASONS TO GRANT THE PETITION

I. The Court Should Resolve the Split over the

Proper Standard for Constitutionally Adequate Medical Care for Detainees

The Circuits are newly divided over the proper

constitutional standard to apply when a pretrial detainee brings a claim under 42 U.S.C. § 1983 alleging

constitutionally inadequate medical care. The division exists because the Court has declined to address

5

the appropriate standard for judging pretrial detainees’ claims of constitutionally inadequate medical

care and because several circuits have read Kingsley

v. Hendrickson, 135 S. Ct. 2466 (2015), in sweeping

terms unmoored from its context and constitutional

rationale. The resulting uncertainty has yielded a

patchwork of constitutional standards throughout the

country in an area of law that, prior to Kingsley, was

fairly uniform and stable. Consistency and stability in

the standards for inmate medical care are particularly important owing to the costs and complexities

associated with providing such care.

A. The Court’s competing lines of doctrine

and reluctance to address the constitutional standard of medical care for detainees have sown confusion

1. In 1976, the Court held that prison officials’ deliberate indifference to a prisoner’s serious medical

needs constitutes cruel and unusual punishment in

violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). The nature of confinement, the Court explained, meant that the “inmate

must rely on prison authorities to treat his medical

needs; if the authorities fail to do so, those needs will

not be met,” which may result in unjustified pain and

suffering or even “torture or lingering death.” Id. at

103. Because “deliberate indifference to serious medical needs” effectively results in the “unnecessary and

wanton infliction of pain,” the Court held that such

deliberate indifference violates the Eighth Amendment, “whether the indifference is manifested by

prison doctors in their response to the prisoner’s

needs or by prison guards in intentionally denying or

6

delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at

104–05.

The Court, however, stressed that not “every claim

by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Id. at 105. Neither accidents nor inadvertent

failures to provide adequate care constitute “an unnecessary and wanton infliction of pain” or qualify as

“repugnant to the conscience of mankind.” Id. at 105–

06. Simply put, “[m]edical malpractice does not become a constitutional violation merely because the

victim is a prisoner.” Id. at 106.

Although Estelle involved medical care, the Court

soon extended it to other conditions that “may deprive

inmates of the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347

(1981); see also Farmer v. Brennan, 511 U.S. 825,

834–37 (1994); Helling v. McKinney, 509 U.S. 25, 35–

36 (1993); Wilson v. Seiter, 501 U.S. 294, 303 (1991).

In Farmer, the Court held that a deliberate-indifference claim entails both an objective and a subjective element: the prisoner must prove (1) a medical

condition or other condition of confinement that poses

an objectively serious risk of substantial harm, and

(2) prison officials’ knowing disregard of that risk. 511

U.S. at 834–37. The Court rejected a purely objective

standard because “an official’s failure to alleviate a

significant risk that he should have perceived but did

not, while no cause for commendation, cannot under

our cases be condemned as the infliction of punishment.” Id. at 838. The Court stressed that negli-

7

gence—or even gross negligence—does not equal deliberate indifference because such conduct, even if it

results in serious harm, does not constitute punishment and therefore does not fall within the scope of

the Eighth Amendment. Id. at 835–36 & n.4.

2. A parallel line of Eighth Amendment cases concerning excessive force developed alongside the deliberate-indifference cases. In Whitley v. Albers, the

Court held that, to prevail on a claim of excessive

force under the Eighth Amendment, a prisoner must

prove that the defendant applied force “maliciously

and sadistically for the very purpose of causing harm”

and not merely as “a good faith effort to maintain and

restore discipline.” 475 U.S. 312, 320–21 (1986); see

also Hudson v. McMillian, 503 U.S. 1, 6–7 (1992).

Whitley refused to adopt the deliberate-indifference

standard for excessive-force claims under the Eighth

Amendment owing to the particular countervailing

interests at stake when prison guards deploy force.

475 U.S. at 320; see also County of Sacramento v.

Lewis, 523 U.S. 833, 849–51 (1998) (explaining that a

deliberate-indifference standard “is sensibly employed only when actual deliberation is practical”).

In short, excessive-force claims and medical-care

claims are subject to entirely different standards.

3. Shortly after Estelle, the Court began to grapple with the similarities and differences between pretrial detainees and convicted prisoners. Pretrial detainees are different from convicted prisoners—and

similar to free persons—in that detainees enjoy a presumption of innocence. But that presumption “has no

application to a determination of the rights of a pretrial detainee during confinement before his trial has

8

even begun.” Bell v. Wolfish, 441 U.S. 520, 533 (1979).

More important, detainees are similar to convicted

prisoners in that both groups have been lawfully confined by the State after receiving due process. See id.

at 546 n.28; see also id. at 536. The fact of confinement

means that detainees and convicts “simply do[] not

possess the full range of freedoms of an unincarcerated individual.” Id. at 546.

In Bell the Court held that “the proper inquiry” for

determining the constitutionality of a pretrial detainee’s conditions of confinement turns on “whether

those conditions amount to punishment of the detainee.” Id. at 535 (emphasis added); see also Ingraham v. Wright, 430 U.S. 651, 671–72 n.40 (1977). Not

every restraint “imposed during pretrial detention

amounts to ‘punishment’ in the constitutional

sense”—once the State “has exercised its conceded authority to detain a person pending trial, it obviously

is entitled to employ devices that are calculated to effectuate this detention.” Bell, 441 U.S. at 537. Applying these principles, Bell held that double-bunking

pretrial detainees in cells designed for single-bunking

did not constitute punishment and so did not violate

the Due Process Clause. Id. at 541–43.

4. Although the Court has held that the Due Process Clause requires States to provide medical care to

detainees, it has never squarely addressed the appropriate constitutional standard for detainees’ claims of

inadequate medical care. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244–45 (1983); see also

City of Canton v. Harris, 489 U.S. 378, 388–89 n.8

(1989). In prior cases it has sufficed to say that the

due process rights of a detainee are “at least as great

9

as the Eighth Amendment protections available to a

convicted prisoner.” City of Revere, 463 U.S. at 244.

In the absence of a definitive answer, the circuits

at one time uniformly applied Farmer’s deliberate-indifference standard to pretrial detainees’ inadequatemedical-care claims. See, e.g., Smith v. Sangamon

Cnty. Sheriff’s Dep’t, 715 F.3d 188, 191 (7th Cir.

2013); Coscia v. Town of Pembroke, 659 F.3d 37, 39

(1st Cir. 2011) (Souter, J.); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241–42 (9th Cir. 2010);

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.

2009); Caiozzo v. Koreman, 581 F.3d 63, 66, 69–72 (2d

Cir. 2009); Phillips v. Roane County, 534 F.3d 531,

539–40 (6th Cir. 2008); Butler v. Fletcher, 465 F.3d

340, 344 (8th Cir. 2006); Cook ex rel. Estate of Tessier

v. Sheriff of Monroe County, 402 F.3d 1092, 1115

(11th Cir. 2005); Woloszyn v. County of Lawrence, 396

F.3d 314, 319–20 (3d Cir. 2005); Brown v. Harris, 240

F.3d 383, 388 (4th Cir. 2001); Hare v. City of Corinth,

74 F.3d 633, 643 (5th Cir. 1996) (en banc).

But that consensus has recently been undermined

owing to several circuits’ misreading of Kingsley. In

Kingsley the Court held that an excessive-force claim

brought by a pretrial detainee does not require inquiry into the defendant’s subjective state of mind—

the detainee need only show that the defendant purposefully or knowingly used force against him and

that the force was objectively unreasonable. 135 S. Ct.

at 2472–73. The Court said that eliminating inquiry

into the defendant’s subjective reason for applying the

force was consistent with Bell, for actions not rationally related to legitimate nonpunitive governmental

purposes may constitute “punishment” forbidden by

10

the Due Process Clause regardless of the defendant’s

mental state. Id. at 2473–74. Whitley and Hudson, the

Court said, were not applicable because they involved

convicted prisoners, who unlike detainees may be

punished up to a point. Id. at 2475.

Since Kingsley, the Fifth, Eighth, Tenth, and Eleventh Circuits have continued to apply Farmer’s deliberate-indifference standard to inadequate-medicalcare claims brought by pretrial detainees, rejecting

calls to jettison the subjective inquiry. See Clark v.

Colbert, 895 F.3d 1258, 1267–69 (10th Cir. 2018);

Whitney v. City of St. Louis, 887 F.3d 857, 860 & n.4

(8th Cir. 2018); Dang v. Sheriff, Seminole County Fla.,

871 F.3d 1272, 1279 & n.2 (11th Cir. 2017); Alderson

v. Concordia Parish Correctional Facility, 848 F.3d

415, 419 & n.4 (5th Cir. 2017) (per curiam). These circuits have reasoned that Kingsley involved a claim of

excessive force and not one of deliberate indifference,

so Kingsley did not overrule inadequate-medical-care

precedents. See, e.g., Whitney, 887 F.3d at 860 n.4; see

also Miranda-Rivera v. Toledo-Davila, 813 F.3d 64,

74–75 (1st Cir. 2016) (continuing to apply Estelle and

Farmer without addressing Kingsley). They have thus

acknowledged the doctrinal differences between excessive-force claims and inadequate-medical-care (or

other conditions-of-confinement) claims. See Whitley,

475 U.S. at 320.

Yet three other circuits have read Kingsley broadly

to apply not only to excessive-force claims but also to

conditions-of-confinement claims, including those

about medical care. See App. 13–14; Miranda v.

County of Lake, 900 F.3d 335, 353–54 (7th Cir. 2018),

reh’g en banc denied; Darnell v. Pineiro, 849 F.3d 17,

11

34–35 (2d Cir. 2017); Castro v. County of Los Angeles,

833 F.3d 1060, 1069–71 (9th Cir. 2016) (en banc);

Bruno v. City of Schenectady, 727 F. App’x 717, 720

(2d Cir. 2018).

The Ninth Circuit has led the charge. In Castro, it

held that a purely objective standard applies to detainees’ failure-to-protect claims, 833 F.3d at 1068–

70, and in this case extended Castro to detainees’

medical claims, see App. 13–14. Acknowledging that

excessive-force claims differ from conditions-of-confinement claims, the Ninth Circuit nevertheless determined that the same standards should apply because both claims arise under the Fourteenth Amendment and the Kingsley majority wrote in broad language. App. 12–14; Castro, 833 F.3d at 1069–70.

In a nominal effort to avoid imposing section 1983

liability merely for the lack of due care, the Ninth Circuit adopted a purported multi-part standard. See

App. 14. But all the court really did was rephrase the

ordinary negligence standard and add the requirement that the defendant’s action must be intentional

and not inadvertent. The detainee need only prove

that the defendant “made an intentional decision”

about treatment, yet failed to “take reasonable available measures” to decrease a reasonably apparent

“substantial risk of harm,” which in turn “caused the

plaintiff’s injuries.” Id.

The Second Circuit joined the Ninth when it held

that a pretrial detainee’s challenges to several conditions of confinement turned on the objective reasonableness of those conditions. Darnell, 849 F.3d at 30–

36; see also Bruno, 727 F. App’x at 720 (remanding

12

inadequate-medical-care claim for application of objective standard). According to the Second Circuit, “an

official can violate the Due Process Clause . . . without

meting out any punishment.” 849 F.3d at 35. Like the

Ninth Circuit, the Second Circuit incorrectly suggested that its standard will exclude ordinary negligence claims because the detainee would need to

“prove that an official acted intentionally or recklessly, and not merely negligently.” Id. at 36.

The Seventh Circuit recently followed suit and

held that pretrial detainees’ claims of inadequate

medical care are to be judged without reference to the

subjective mindset of the defendant officials or medical professionals. Miranda, 900 F.3d at 353–54. Instead, “medical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject

only to the objective unreasonableness inquiry identified in Kingsley.” Id. at 352. Under the Seventh Circuit’s approach, so long as the defendant medical professional undertakes a purposeful, knowing, or even

reckless act, a jury can find that the act violates the

Due Process Clause if that act was objectively unreasonable. Id. at 352–54.

***

The circuit split has unsettled what for a time constituted fairly stable and uniform law regarding the

applicable standard to pretrial detainees’ section

1983 claims alleging inadequate medical care. One

group of circuits continues to apply the deliberate-indifference standard of Estelle and Farmer to such

claims. Another group of circuits has read Kingsley’s

holding regarding excessive-force cases to mean that

a uniform objective-reasonableness standard applies

13

to all claims brought by pretrial detainees, including

claims alleging constitutionally inadequate medical

care. The Court should resolve the split and restore

uniformity and predictability.

B. States need stability, certainty, and uniformity in the constitutional standard

governing the provision of medical care to

persons who are in state custody

1. This Court has long recognized that “[r]unning

a prison is an inordinately difficult undertaking.”

Turner v. Safley, 482 U.S. 78, 84–85 (1987); see also

Procunier v. Martinez, 416 U.S. 396, 404–05 (1974)

(explaining “that the problems of prisons in America

are complex and intractable, and, more to the point,

they are not readily susceptible of resolution by decree,” and thus “courts are ill equipped to deal with

the increasingly urgent problems of prison administration and reform”).

Providing medical care to convicted prisoners in

state correctional facilities is a gargantuan task. On

any particular day, state prisons confine more than

1.3 million people. Pew Charitable Trusts, Prison

Health Care: Costs and Quality 1, 92 (2017). Prisoners

have a high incidence of chronic and infectious diseases, such as hypertension, HIV, hepatitis C, and

mental illness, which are costly to treat. See id. at 7,

24; Pew Charitable Trusts & MacArthur Foundation,

State Prison Health Care Spending 9 (2014).

Overall, roughly 20% of total state prison expenditures go toward paying for inmates’ medical care.

Pew, Prison Health Care, supra, at 3. In 2012, for example, States spent a total of $38.6 billion on prisons,

14

$7.6 billion of which was for inmate health care. Id. at

126 n.4. And in 2015, state departments of correction

spent approximately $8.1 billion on prison health care

services. Id. at 3. Nearly half the States (twenty-one)

spent $100 million or more on prison health care in

2015, with California topping that list at more than

$2.3 billion. See id. at 90–91. Three more—Connecticut, Indiana, and Massachusetts—fell just short of

$100 million, spending between $93 million and $97

million. Id. And thirty-one States spent more than

$5,000 per inmate. See id. at 94–95.

The Federal Bureau of Prisons, which as of June

2017 had responsibility for about 188,000 inmates,

similarly spent nearly $1.2 billion of its $6.9 billion

appropriation on health care for inmates in 2016, at a

per-inmate cost of $8,602. U.S. Gov’t Accountability

Office, GAO-17-379, Bureau of Prisons: Better Planning and Evaluation Needed to Understand and Control Rising Inmate Health Care Costs 1, 6, 17 (2017);

see also id. at 15 (reporting health-care expenditures

of $9 billion from 2009 through 2016).

In addition to the roughly 1.3 million people

housed by state prisons on any given day, county and

local jails house more than 740,000 inmates. Zhen

Zeng, U.S. Dep’t of Justice, Jail Inmates in 2016, at 1

(2018); see also Pew, Prison Health Care, supra, at 57–

58 (excluding inmates in local custody from figures

concerning state prison medical expenditures). During 2015, local jails booked more than 10.9 million

people into jail. Pew Charitable Trusts, Jails: Inadvertent Health Care Providers 3 (2018); see also Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 326

(2012).

15

The costs of providing health care to pretrial detainees and others housed in jails are similarly massive. See, e.g., Pew, Jails, supra, at 7 (noting that

Cook County, Illinois, spent almost $100 million on

jail-inmate health care in 2016); Christian Henrichson et al., Vera Inst. of Justice, The Price of Jails:

Measuring the Taxpayer Cost of Local Incarceration

14 (2015) (noting that King County, Washington,

spent $29 million, roughly twenty percent of its

budget, on inmate health care in 2014). The Department of Justice has estimated that localities spent

more than $22 billion on jails in 2011, Tracey Kyckelhahn, U.S. Dep’t of Justice, Local Government Corrections Expenditures, FY 2005–2011, at 3 tbl.2 (2013),

yet that figure is misleadingly low because in some

localities other agencies pay for inmate health care

and other expenses. Henrichson, supra, at 4–5, 14.

The high costs are hardly surprising—detainees, like

prisoners, have a high incidence of chronic and infectious disease as well as mental illness. Pew, Jails, supra, at 3. Indeed, some jails have unwittingly become

substitutes for now-shuttered public mental health

hospitals. Id. at 5.

2. Owing to the vast sums of taxpayer money already at issue, it is critical for States, localities, and

courts to have a clear, uniform, and predictable constitutional standard. Inmate suits alleging constitutionally inadequate medical care are already ubiquitous. Paying damages awards and attorney fees or implementing injunctive relief drains resources. Uncertainty over something as fundamental as the applicable constitutional standard only complicates matters.

16

The costs of inmate litigation are not measured

solely in paying out or implementing judgments.

Every minute a physician spends in a deposition is a

minute away from providing care to another inmate,

which requires States and localities to spend yet more

to hire additional medical professionals. At the same

time, however, the omnipresent threat of inmate litigation in federal court deters some medical professionals from providing care in jails and prisons, making it difficult to recruit quality medical personnel.

These professionals are, after all, asked to go into undesirable places and provide care to some of the most

difficult persons in society.

The costs and consequences of this sort of litigation stand to grow dramatically if inmates are no

longer required to satisfy Estelle’s and Farmer’s deliberate-indifference standard. By requiring plaintiffs to

establish subjective recklessness, the deliberate-indifference standard reduces the number of cases in

which federal courts rely on medical experts to determine the constitutionality of incarcerated individuals’

medical care. But removing the defendant’s subjective

state of mind from the equation leaves nothing but objective reasonableness, a matter usually informed by

expert testimony.

The potential need for expert testimony in the

mine run of detainee-medical-treatment cases stands

to increase the costs of litigation and to draw out the

process, thereby clogging federal dockets, distracting

medical professionals from treating detainees, and

draining scarce public resources. Moreover, imposing

a lower standard than deliberate indifference suggests that detainees will succeed in more cases,

17

whether by settlement or judgment, encouraging

more suits. The serious economic impact of these

types of claims makes the issue presented one of critical importance to the States.

3. Again, in adopting the deliberate-indifference

standard in Estelle, the Court cautioned that it was

not constitutionalizing the law of negligence. 429 U.S.

at 106. Similarly, “liability for negligently inflicted

harm is categorically beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849; see also,

e.g., Daniels v. Williams, 474 U.S. 327, 328 (1986)

(holding “that the Due Process Clause is simply not

implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”).

Yet the Ninth Circuit’s reasonableness standard,

by requiring proof of nothing more than negligence,

effectively constitutionalizes the common-law negligence standard. The Ninth and Seventh Circuits have

disclaimed as much on the grounds that Kingsley requires inquiry into whether the defendant intended to

take the act at issue. See App. 13–14; Miranda, 900

F.3d at 353–54; Castro, 833 F.3d at 1071. That requirement, however, stems from Fourth Amendment

cases, where no seizure occurs absent intentional use

of force. See Lewis, 523 U.S. at 843–44 (discussing

California v. Hodari D., 499 U.S. 621, 626 (1991), and

Brower v. County of Inyo, 489 U.S. 593, 596–97

(1989)). But all medical-care claims are accompanied

by intentional acts, such that even something as basic

as writing a prescription for ibuprofen rather than acetaminophen for a detainee who then suffers gastric

bleed becomes a due process claim upon proof that the

18

physician acted unreasonably in the choice of medication.

This implication of the objective reasonableness

test is important not only because it contravenes Estelle, but also because it undermines state tort-reform

efforts in the context of medical malpractice. Many

States have statutes governing the procedures and

damages available for medical negligence claims. See,

e.g., Ind. Code § 34-18-1-1 et seq.; Am. Med. Ass’n,

Medical Liability Reform—Now! 14–22 (2018 ed.);

Jean Macchiaroli Eggen, Medical Malpractice Screening Panels: An Update and Assessment, 6 J. Health &

Life Sci. L. 1, 8 & n.21 (2013); F. Patrick Hubbard,

The Nature & Impact of the “Tort Reform” Movement,

35 Hofstra L. Rev. 437, 517–22 (2006); Scott H.

Moulton, USLAW Network, Compendium of Law: 50State Analysis of Liability Damages Cap (2017). The

purpose of those statutes is to control medical negligence liability, promote talent retention, and preserve

and promote access to health care. Permitting pretrial

detainees to bootstrap medical negligence claims into

constitutional claims would permit circumvention of

med-mal tort reform efforts. It would also put federal

courts in the middle of interpreting and applying ordinary state medical negligence standards in the process.

The Court should decide whether the Due Process

Clause requires such an intrusion on the States’ traditional regulation of tort law.

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II. The Decision Below Is Wrong

The decision below—and similar decisions of the

Seventh and Second Circuits—extending the purely

objective test of Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015), to pretrial detainees’ inadequate-medical-care claims is wrong. The decision is unmoored

from the justification for a constitutional duty to provide medical treatment to inmates—and indeed suggests (contrary to precedent) that States are permitted, up to a point, to “punish” convicted prisoners with

subpar medical treatment. It also ignores well-established doctrinal differences between excessive-force

and conditions-of-confinement claims and (again contrary to precedent) attempts to fashion a one-size-fitsall standard from the Due Process Clause.

A. No constitutional or logical reason justifies different standards for inadequatemedical-care claims brought by convicted

prisoners and pretrial detainees

1. Both the Eighth Amendment and the Due Process Clause impose on States a duty to provide adequate medical care to confined individuals. See City of

Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244

(1983); Estelle v. Gamble, 429 U.S. 97, 104 (1976).

When the State has affirmatively restrained an individual’s liberty and “render[ed] him unable to care for

himself,” it must “provide for his basic human needs.”

DeShaney v. Winnebago Cnty. Soc. Servs. Dep’t, 489

U.S. 189, 200 (1989); see also County of Sacramento v.

Lewis, 523 U.S. 833, 851 (1998); Estelle, 429 U.S. at

103–04.

20

The Constitution does not require different standards for evaluating inadequate-medical-care claims

brought by pretrial detainees and those brought by

convicted prisoners. The Due Process Clause bars the

State from inflicting “punishment” on a pretrial detainee. Kingsley, 135 S. Ct. at 2475; Bell v. Wolfish,

441 U.S. 520, 536–37 (1979). And the Court’s Eighth

Amendment cases hold that while disregarding a serious medical risk of which the defendant is subjectively aware constitutes punishment, objectively unreasonable conduct that is not accompanied by subjective awareness is not punishment; it is nothing more

than medical malpractice. See Farmer v. Brennan,

511 U.S. 825, 838 (1994) (reasoning that “an official’s

failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation, cannot under our cases be condemned as

the infliction of punishment”); Wilson v. Seiter, 501

U.S. 294, 300 (1991) (“If the pain inflicted is not formally meted out as punishment by the statute or the

sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.”);

Estelle, 429 U.S. at 105–06. In the context of providing

medical care to confined inmates, it is the defendant’s

subjective recklessness—i.e., conscious disregard of a

known substantial risk of harm—that distinguishes

between “punishment” and medical malpractice, irrespective of the inmate’s status as a detainee or a convict.

In other words, the critical event triggering the

States’ duty to provide medical care is confinement,

not conviction. The State must provide medical care

to any inmate, regardless of the reason for confine-

21

ment or the constitutionally permissible level of punishment, because by locking up the inmate the State

has prevented self-care. And regardless of whether

the inmate is a convicted prisoner or a pretrial detainee, in order to violate the Eighth Amendment or

the Due Process Clause the provision of medical care

must constitute punishment.

Indeed, because the Court has never condoned any

medical deprivation as a permissible form of punishment, the objective standard adopted by the Ninth,

Seventh, and Second Circuits logically runs straight

into Estelle and Farmer. If objectively unreasonable

medical care constitutes “punishment” with regard to

a detainee—the critical inquiry in evaluating a detainee’s due process claim, see Kingsley, 135 S. Ct. at

2473; Bell, 441 U.S. at 535—then it necessarily constitutes punishment with regard to a convicted prisoner. See Wilson, 501 U.S. at 301–02 (“An intent requirement is either implicit in the word ‘punishment’

or is not; it cannot be alternately required and ignored

as policy considerations might dictate.”). Yet Estelle

and Farmer clearly and definitively say that medical

treatment—even objectively unreasonable treatment—for which there is no subjective recklessness is

not punishment under the Eighth Amendment. Estelle, 429 U.S. at 104–06; see also Farmer, 511 U.S. at

838; Wilson, 501 U.S. at 300.

2. The Ninth Circuit (along with the Seventh and

Second Circuits) deemed Estelle and Farmer inapplicable and instead embraced the theory that a pretrial

detainee must in all cases have greater rights than a

convicted prisoner. See App. 12–14. Yet for purposes

of medical care, detainees and convicts are identically

22

situated. The State equally confines inmates of both

groups and thereby equally prevents them from securing their own medical care. Cf. Bell, 441 U.S. at

546 (explaining that the principles limiting the scope

of convicts’ constitutional rights “applies equally to

pretrial detainees”). Nor, unlike with excessive force

claims, can a Fourth Amendment standard apply to

medical care, which in no way further “seizes” someone already confined. See, e.g., DeShaney, 489 U.S. at

200. Just as it would have been “nonsensical” to apply

the medical deliberate-indifference standard to excessive-force claims, see Whitley, 475 U.S. at 320–21, so

too is it nonsensical to extend the Kingsley standard

to the medical-care context.

The upshot is that the Court’s precedents do not

treat excessive force and deprivation of medical care

in tandem. The Ninth Circuit’s reliance on Kingsley to

fashion a new rule of constitutional law for inadequate-medical-care claims is misplaced and ignores

the principle that “[r]ules of due process are not . . .

subject to mechanical application in unfamiliar territory.” Lewis, 523 U.S. at 850. The constitutional foundation underlying the State’s duty to provide medical

care to those it has confined does not turn on the status of the person confined. It is about furnishing those

who cannot help themselves with life’s basic necessities.

23

B. The deliberate-indifference standard is

appropriate for evaluating pretrial detainees’ inadequate-medical-care claims

Unlike the Ninth Circuit’s objective-reasonableness standard, the deliberate-indifference standard

accounts for the constitutional basis for the State’s

duty to provide medical care, which in no way turns

on whether a confined person has been convicted. See,

e.g., DeShaney, 489 U.S. at 200; cf. Farmer, 511 U.S.

at 839 (explaining that “a subjective approach isolates

those who inflict punishment”); Bell, 441 U.S. at 536–

37 (holding that a jail may subject a detainee to restrictions and conditions that “do not amount to punishment”).

The deliberate-indifference standard is also consistent with the “shocks the conscience” standard applicable to substantive due process claims. See Lewis,

523 U.S. at 849; see also Rochin v. California, 342 U.S.

165, 172 (1952). Conscience-shocking activity by its

nature requires a particular mental state. Merely

substandard medical care does not shock the conscience, but subjectively reckless medical care might.

Finally, the deliberate-indifference standard also

reflects the reality that “courts are ill equipped to deal

with the increasingly urgent problems of prison administration.” Procunier v. Martinez, 416 U.S. 396,

405 (1974). States and localities are tasked not only

with providing medical care to all inmates but also

with supplying adequate shelter, nutrition, clothing,

and safety. Farmer, 511 U.S. at 832. Imposing section

1983 liability on officials and medical providers with-

24

out a showing of at least subjective recklessness implies that while the Constitution does not require

comfortable prisons and jails, see Rhodes v. Chapman,

452 U.S. 337, 349 (1981); Bell, 441 U.S. at 537–43, it

requires perfectly run prisons and jails. That has

never been the law.

In creating a new constitutional standard for judging detainee medical-care claims the Ninth Circuit

detached Kingsley from its constitutional footing and

ignored the basis for the States’ constitutional duty to

provide adequate medical care to inmates, whether

convicted or not.

CONCLUSION

The Petition should be granted.

Respectfully submitted,

Office of the Attorney General

IGC South, Fifth Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

CURTIS T. HILL, JR.

Attorney General

THOMAS M. FISHER*

Solicitor General

AARON T. CRAFT

KIAN J. HUDSON

JULIA C. PAYNE

Deputy Attorneys

General

Counsel for Amici States

* Counsel of Record

Dated: October 15, 2018

25

ADDITIONAL COUNSEL

Counsel for Amici States

KEN PAXTON

Attorney General

State of Texas

RUSSELL A. SUZUKI

Attorney General

State of Hawaii