Amicus Curiae Brief — Otis Crandel, as Dependent Administrator of and on Behalf of Billy Wayne Worl, Jr., et al., Petitioners v. Dalena Hall, et al.

NO. 23-317

In the Supreme Court of the United States

OTIS CRANDEL, AS DEPENDENT ADMINISTRATOR OF,

AND ON BEHALF OF BILLY WAYNE WORL, JR.;

EMILY GARCIA; JAMES MATTHEW GARCIA;

JARED ANDREW GARCIA, INDIVIDUALLY;

THE ESTATE OF BRENDA KAYE WORL AND

BRENDA KAY WORL’S HEIRS-AT-LAW;

BILLY WAYNE WORL, JR., INDIVIDUALLY,

Petitioners,

v.

DALENA HALL AND CARI RENEA MCGOWEN,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE

THE NATIONAL SHERIFFS’ ASSOCIATION

IN SUPPORT OF RESPONDENTS

Gregory C. Champagne

Counsel of Record

Maurice E. Bostick

ST. CHARLES PARISH SHERIFF’S OFFICE

260 Judge Edward Dufresne Pkwy.

Luling, LA 70070

(985)783-2883

SheriffGC@stcharlessheriff.org

January 9, 2024

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

IDENTITY AND INTEREST OF THE

AMICUS CURIAE ............................................... 1

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

1. This Court Established a Clear Distinction

Between a Use of Force Analysis and a

Deliberate Indifference Analysis as Early

as 1986 .............................................................. 3

2. The Kingsley Objective Test for Excessive

Force Claims Cannot Be Applied in

Deliberate Indifference to Medical Needs

Claims ............................................................... 5

3. Even After Kingsley, Many Circuits Have

Properly Recognized That Kingsley Cannot

Be Applied to Medical “Deliberate

Indifference” Claims to Eliminate the

Subjective

Component

and

Impose

Resulting Liability on the Defendants .......... 14

4. There Is No Constitutional Basis for a

Distinction Between Pretrial and Convicted

Inmates Other Than Use of Force Under

Kingsley .......................................................... 16

CONCLUSION.......................................................... 20

ii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Agostini v. Felton,

521 U.S. 203, 117 S. Ct. 1997,

138 L. Ed. 2d 391 (1997) ................................... 12

Bell v. Wolfish,

441 U.S. 520, 99 S. Ct. 1861,

60 L. Ed. 2d 447 (1979) ......................... 10, 17, 19

Castro v. Cty. of Los Angeles,

833 F.3d 1060 (9th Cir. 2016) ....................... 9, 10

Cutter v. Wilkinson,

544 U.S. 709 (2005) ..................................... 18, 19

Estate of Hocker by Hocker v. Walsh,

22 F.3d 995 (10th Cir. 1994) ............................... 6

Estelle v. Gamble,

429 U.S. 97, 97 S. Ct. 285,

50 L. Ed. 2d 251 (1976) ......................... 2-6, 17-20

Farmer v. Brennan,

511 U.S. 825, 114 S. Ct. 1970,

128 L. Ed. 2d 811 (1994) ..... 2, 4, 5, 11, 12, 18, 19

Florence v. Board of Chosen Freeholders of the

County of Burlington,

132 S. Ct. 1510 (2012) ....................................... 19

Garcia v. Salt Lake Cty.,

768 F.2d 303 (10th Cir. 1985) ......................... 5, 8

Graham v. Connor,

490 U.S. 386, 109 S. Ct. 1865,

104 L. Ed. 2d 443 (1989) ................................. 8, 9

Griffith v. Franklin Cty.,

975 F.3d 554 (6th Cir. 2020) ............................. 16

iii

TABLE OF AUTHORITIES – Continued

Page

Holt v. Hobbs,

135 S. Ct. 853 (2015) ......................................... 19

Hudson v. McMillian,

503 U.S. 1, 112 S. Ct. 995,

117 L. Ed. 2d 156 (1992) ................................. 2,-5

Ireland v. Prummell,

53 F.4th 1274,

1287 (11th Cir. November 14, 2022) ................. 14

Kingsley v. Hendrickson,

576 U.S. 389, 135 S. Ct. 2466,

192 L. Ed. 2d 416 (2015) ................ 2, 5-14, 16, 20

R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377, 386 n.5, 112 S. Ct. 2538,

120 L. Ed. 2d 305 (1992) ................................... 13

Sanchez v. Oliver,

995 F.3d 461 (5th Cir. 2021) ....................... 15, 16

Strain v. Regalado,

977 F.3d 984 (10th Cir. 2020) ........................ 5-13

Turner v. Safley,

482 U.S. 78 (1987) ....................................... 17, 19

United States v. White,

782 F.3d 1118 (10th Cir. 2015) ......................... 13

Whitley v. Albers,

475 U.S. 312,106 S. Ct. 1078,

89 L. Ed. 251 (1986) ......................................... 2-5

Williams v. Young,

695 Fed. Appx. 503 (11th Cir. 2017) ................. 15

Wilson v. Seiter,

501 U.S. 294 (1991) ........................................... 17

iv

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend I ................................................. 17

U.S. Const. Amend IV............................................... 19

U.S. Const. Amend VIII ............................................ 18

U.S. Const. Amend. XIV ........ 2, 5-8, 12, 13, 18, 19, 20

STATUTES

26 U.S.C. § 501(c)(4) ................................................... 1

42 U.S.C. § 1983 ..................................... 5, 6, 14, 16-18

42 U.S.C. § 2000cc..................................................... 18

JUDICIAL RULES

Sup. Ct. R. 37.2(a) ....................................................... 1

OTHER AUTHORITIES

CHICAGO MANUAL OF STYLE (16th ed. 2010) ............. 11

1

IDENTITY AND INTEREST OF THE

AMICUS CURIAE

The NATIONAL SHERIFFS’ ASSOCIATION (the “NSA”)

is a non-profit association formed under 26 U.S.C.

§ 501(c)(4).1 Formed in 1940 the NSA seeks to promote

the fair and efficient administration of criminal justice

throughout the United States and in particular to

advance and protect the Office of Sheriff throughout

the United States. The NSA has over 20,000 members

and is the advocate for 3,083 sheriffs throughout the

United States.

The NSA also works to promote the public interest

goals and policies of law enforcement throughout the

nation. It participates in the judicial process where

the vital interests of law enforcement and its members

are affected.

Amicus represents the nation’s sheriffs who operate

more than 3,000 local correctional facilities throughout

the country. The vast majority of these facilities house

both convicted as well as pretrial inmates. Sheriffs, as

the custodians of the inmates housed within these

facilities, are charged with providing a safe and secure

environment for both the inmates and for their staff.

1 This brief was not authored in whole or in part by counsel for

any party. No person or entity other than amicus curiae made a

monetary contribution to this brief’s preparation or submission.

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

parties have received timely notice of the intent to file this brief.

2

SUMMARY OF ARGUMENT

Deliberate indifference to medical needs claims

must contain both an objective test and a subjective

test as well-established since Estelle v. Gamble, 429

U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The

subjective test requires an official both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and they must

also reasonably, using a reasonable person standard,

draw the inference. This Court’s holding in Kingsley

v. Hendrickson, 576 U.S. 389, 135 S.Ct. 2466, 192

L.Ed.2d 416 (2015) that pretrial detainees claiming

excessive force only have to establish an objective

component did not eliminate the subjective component

required in all other constitutional claims by pretrial

detainees, including deliberate indifference to medical

needs claims.

This Court’s well-established precedent makes

clear that a use of force analysis is necessarily different

than a deliberate indifference analysis in Whitley v.

Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L. Ed. 251

(1986), Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995,

117 L.Ed.2d 156 (1992), and Farmer v. Brennan, 511

U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Accordingly, Kingsley‘s use of force analysis cannot be

superimposed over a deliberate indifference analysis

to eliminate the subjective component of deliberate

indifference.

This Court should decline to extend Kingsley to

Fourteenth Amendment deliberate indifference claims

for several reasons. First, Kingsley turned on consid-

3

erations unique to excessive force claims: whether the

use of force amounted to punishment, not on the

status of the detainee. Next, the nature of a deliberate

indifference claim infers a subjective “deliberate”

component. Finally, principles of stare decisis weigh

against overruling precedent to extend a Supreme

Court holding to a new context or new category of

claims.

1.

This Court Established a Clear Distinction

Between a Use of Force Analysis and a

Deliberate Indifference Analysis as Early as

1986.

In Whitley, this Court explained that a use of

force analysis is necessarily different than a deliberate

indifference analysis. This Court reasoned:

“[D]eliberate indifference to a prisoner’s

serious illness or injury,” Estelle, supra, at

105, can typically be established or disproved

without the necessity of balancing competing

institutional concerns for the safety of prison

staff or other inmates. But, in making and

carrying out decisions involving the use of

force to restore order in the face of a prison

disturbance, prison officials undoubtedly must

take into account the very real threats the

unrest presents to inmates and prison

officials alike, in addition to the possible

harms to inmates against whom force might

be used. As we said in Hudson v. Palmer, 468

U.S. 517, 526-527 (1984), prison administrators are charged with the responsibility of

ensuring the safety of the prison staff, administrative personnel, and visitors, as well as

the “obligation to take reasonable measures

4

to guarantee the safety of the inmates themselves.” In this setting, a deliberate indifference standard does not adequately capture

the importance of such competing obligations,

or convey the appropriate hesitancy to critique

in hindsight decisions necessarily made in

haste, under pressure, and frequently without

the luxury of a second chance.

Whitley, 475 U. S. at 320.

This Court again explained why a use of force

analysis is necessarily different from a deliberate

indifference analysis in Hudson.

In Hudson, the Court stated, “Because society

does not expect that prisoners will have unqualified

access to health care, deliberate indifference to medical

needs amounts to an Eighth Amendment violation

only if those needs are “serious.” Hudson, 503 U.S. at

9, citing, Estelle 429 U.S. at 103-104. “In an excessive

force context, society’s expectations are different.”

Hudson, 503 U.S. at 9.

Again in Farmer v. Brennan, 511 U.S. 825, 114

S.Ct. 1970, 128 L.Ed.2d 811 (1994), this Court provided:

While Estelle establishes that deliberate

indifference entails something more than mere

negligence, the cases are also clear that it is

satisfied by something less than acts or

omissions for the very purpose of causing

harm or with knowledge that harm will result.

That point underlies the ruling that application of the deliberate indifference standard

is inappropriate in one class of prison cases:

when officials stand accused of using excessive

physical force.

5

Farmer, 511 U.S. at 835.

Based on Whitley, Hudson and Farmer, Kingsley‘s

elimination of the subjective component in a use of

force analysis cannot be applied to a deliberate indifference analysis.

2.

The Kingsley Objective Test for Excessive

Force Claims Cannot Be Applied in Deliberate

Indifference to Medical Needs Claims.

In Strain v. Regalado, 977 F.3d 984 (10th Cir. 2020),

the Tenth Circuit considered whether the district

court erred by dismissing Plaintiff’s federal claims under

a standard for deliberate indifference that included

both an objective and a subjective component. Plaintiff

contended the court should analyze her claims under

a purely objective standard given the Supreme Court’s

decision in Kingsley v. Hendrickson, 576 U.S. 389, 135

S.Ct. 2466, 192 L.Ed.2d 416 (2015). The Tenth Circuit

rejected Plaintiff’s arguments and held that deliberate

indifference to a pretrial detainee’s serious medical

needs includes both an objective and a subjective component, even after Kingsley. Strain, 977 F.3d at 989.

The court in Strain noted that the Supreme Court

first recognized a § 1983 claim for deliberate indifference

under the Eighth Amendment, which protects the

rights of convicted prisoners, citing, Estelle v. Gamble,

429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)

(holding that deliberate indifference to a convicted

prisoner’s serious medical needs constitutes cruel and

unusual punishment in violation of Eighth Amendment).

Strain, 977 F.3d at 989. The Tenth Circuit later granted

pretrial detainees access to the claim under the

Fourteenth Amendment in Garcia v. Salt Lake Cty., 768

F.2d 303, 307 (10th Cir. 1985) (holding that, although

6

the Eighth Amendment protects the rights of convicted

prisoners and the Fourteenth Amendment protects

the rights of pretrial detainees, pretrial detainees are

“entitled to the degree of protection against denial of

medical attention which applies to convicted inmates”).

Strain, 977 F.3d at 989. In a later decision, the Tenth

Circuit applied the same deliberate indifference

standard to U.S.C. § 1983 claims no matter which

amendment provided the constitutional basis for the

claim. Strain, 977 F.3d at 989, citing Estate of Hocker

by Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir. 1994)

(holding that a pretrial detainee’s Fourteenth Amendment “claim for inadequate medical attention must be

judged against the deliberate indifference to serious

medical needs test of Estelle“).

In Strain the court said that to state a cognizable

constitutional claim, the Plaintiff must allege acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs. Strain, 977

F.3d at 989. This standard includes both an objective

component and a subjective component. Id. The subjective component requires that Plaintiff to establish

that a medical official knows of and disregards an

excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm

exists, and she must also draw the inference and

failed to act to the point that harm or injury was

caused to the plaintiff. Strain, 977 F.3d at 990.

In Strain, the Plaintiff argued that the Supreme

Court’s Kingsley decision altered the standard for

pretrial detainees’ Fourteenth Amendment claims. In

Kingsley, the Court held that a plaintiff may establish

an excessive force claim under the Fourteenth Amend-

7

ment based exclusively on objective evidence. Kingsley,

576 U.S. at 397 (explaining that “the appropriate

standard for a pretrial detainee’s excessive force claim

is solely an objective one”). But the Tenth Circuit in

Strain noted that Kingsley did not address the

standard for deliberate indifference to serious medical

needs. Strain, 977 F.3d at 990. And the court also

noted that the circuits are split on whether Kingsley

eliminated the subjective component of the deliberate

indifference standard by extending to Fourteenth

Amendment claims outside the excessive force context.

Id.

The court in Strain declined to extend Kingsley to

Fourteenth Amendment deliberate indifference claims

for several reasons. Strain, 977 F.3d at 991. First,

Kingsley turned on considerations unique to excessive

force claims: whether the use of force amounted to

punishment, not on the status of the detainee. Id.

Next, the nature of a deliberate indifference claim

infers a subjective component. Id. Finally, principles

of stare decisis weigh against overruling precedent to

extend a Supreme Court holding to a new context or

new category of claims. Id.

In Strain, the court stated that “[f]irst, we recognize

that Kingsley involved an excessive force claim, not a

deliberate indifference claim.” Id. “By its own words,

the Supreme Court decided that ‘an objective standard

is appropriate in the context of excessive force claims

brought by pretrial detainees pursuant to the Fourteenth Amendment’—nothing more, nothing less.”

Strain, 977 F.3d at 991, citing, Kingsley, 576 U.S. at

402. The Tenth Circuit in Strain reasoned that,

although the Court did not foreclose the possibility of

extending the purely objective standard to new contexts,

8

the Court said nothing to suggest it intended to extend

that standard to pretrial detainee claims generally or

deliberate indifference claims specifically. Strain, 977

F.3d at 991, citing, Kingsley, 576 U.S. at 395 (explaining

that the question before the Court [in Kingsley]

concerns the defendant’s state of mind with respect to

whether his use of force was ‘excessive’ and concluding

with respect to that question that the relevant standard

is objective not subjective). So whether Kingsley applies

to Fourteenth Amendment claims outside the excessive

force context is not readily apparent from that opinion

according to the court’s reasoning in Strain. Strain,

977 F.3d at 991.

In Strain, the Tenth Circuit explained in a very

cogent way that this Court is urged to adopt why

Kingsley cannot be applied outside the excessive force

context as follows:

Even though both causes of action arise

under the Fourteenth Amendment, a pretrial

detainee’s cause of action for excessive force

serves a different purpose than that for

deliberate indifference. The excessive force

cause of action “protects a pretrial detainee

from the use of excessive force that amounts

to punishment.” Id. at 397 (quoting Graham

v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct.

1865, 104 L.Ed.2d 443 (1989)). The deliberate

indifference cause of action does not relate to

punishment, but rather safeguards a pretrial

detainee’s access to adequate medical care.

Garcia, 768 F.2d at 307. Excessive force

requires an affirmative act, while deliberate

indifference often stems from inaction. Castro

v. Cty. of Los Angeles, 833 F.3d 1060, 1069

9

(9th Cir. 2016) (en banc). Although “punitive

intent may be inferred from affirmative acts

that are excessive in relationship to a legitimate government objective, the mere failure

to act does not raise the same inference.” Id.

at 1086 (Ikuta, J., dissenting) (reasoning that

“the Kingsley standard is not applicable to

cases where a government official fails to act”

because “a person who unknowingly fails to

act—even when such a failure is objectively

unreasonable—is negligent at most” and “the

Supreme Court has made clear that liability

for negligently inflicted harm is categorically

beneath the threshold of constitutional due

process”). Because the two categories of claims

protect different rights for different purposes,

the claims require different state-of-mind

inquiries.

Strain, 977 F.3d at 991.

The Strain court stated, “Indeed, Kingsley relies

on precedent specific to excessive force claims. Id.

The Court reasoned that the Due Process Clause is

particularly concerned with improper punishment of

pretrial detainees through use of force and physical

means. Id. citing, Kingsley, 576 U.S. at 398 (citing

Graham, 490 U.S. at 395 n.10 (concluding that “the

Due Process Clause protects a pretrial detainee from

the use of excessive force that amounts to punishment”)).” Strain, 977 F.3d at 991. “And pretrial detainees should receive greater protection against excessive

force than convicted criminals because the government

lacks the same legitimate penological interest in

punishing those not yet convicted of a crime.” Strain,

977 F.3d at 991-992, citing, Kingsley, 576 U.S. at 398-99.

10

The Strain court further stated, “So a pretrial detainee

may prevail on an excessive force claim ‘in the absence

of an expressed intent to punish’ if an official’s actions

‘appear excessive in relation to [a legitimate government] purpose.’” Strain, 977 F.3d at 992, citing,

Kingsley, 576 U.S. at 398 (quoting Bell v. Wolfish, 441

U.S. 520, 561, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)

(considering only objective evidence to determine

“whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the

constitutional sense of that word” (Id. at 538))).”

Strain, 977 F.3d at 992.

In Strain the court further noted that

[T]hroughout the Kingsley opinion, the Court’s

focus on ‘punishment’ provides the basis for

removing the subjective requirement from a

pretrial detainee’s excessive force claims. Id.

(providing excessive force examples in which

purely objective evidence showed that the

government’s punitive actions were intentional, even if the motivation behind those

actions was not to punish).

Strain, 977 F.3d at 992. The Tenth Circuit further

stated, “But the Court has never suggested that we

should remove the subjective component for claims

addressing inaction.” Strain, 977 F.3d at 992, citing,

Castro, 833 F.3d at 1086 (Ikuta, J., dissenting). “Thus,

the force of Kingsley does not apply to the deliberate

indifference context, where the claim generally involves

inaction divorced from punishment.” Strain, 977 F.3d

at 992.

The Tenth Circuit in Strain next observed that a

deliberate indifference claim presupposes a subjective

11

component. Strain, 977 F.3d at 992. “After all, deliberate

means ‘intentional,’ ‘premeditated,’ or ‘fully considered.’”

Strain, 977 F.3d at 992, citing, Black’s Law Dictionary

539 (11th ed. 2019). “And as an adjective, ‘deliberate’

modifies the noun ‘indifference.’” Strain, 977 F.3d at

992, citing, CHICAGO MANUAL OF STYLE § 5.79 (16th

ed. 2010) (“An adjective that modifies a noun element

usually precedes it.”). So a plaintiff must allege that

an actor possessed the requisite intent, together with

objectively indifferent conduct, to state a claim for

deliberate indifference according to the Strain court.

Strain, 977 F.3d at 992.

The Strain court stated, “To that end, the Supreme

Court previously rejected a request to adopt a ‘purely

objective test for deliberate indifference.’” Strain, 977

F.3d at 992, citing, Farmer v. Brennan, 511 U.S. 825,

839, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “Instead,

deliberate indifference requires an official to subjectively

disregard a known or obvious, serious medical need.

Id. at 837 (explaining that “deliberate indifference

[lies] somewhere between the poles of negligence at

one end and purpose or knowledge at the other” (Id.

at 836)).” Strain, 977 F.3d at 992. The Strain court

provided, “So an official’s intent matters not only as to

what the official did (or failed to do), but also why the

official did it. Farmer, 511 U.S. at 839 (explaining that

a deliberate indifference claim focuses “on what a

defendant’s mental attitude actually was”).” Strain,

977 F.3d at 992.

The Tenth Circuit in Strain reasoned further as

follows:

An excessive force claim, on the other hand,

does not consider an official’s “state of mind

with respect to the proper interpretation of

12

the force.” Kingsley, 576 U.S. at 396 (emphasis

in original). So the Supreme Court distinguished deliberate indifference cases—where

an official’s subjective intent behind objectively indifferent conduct matters—from the

distinct class of cases involving excessive

force, which does not require that an official

subjectively intended for force to be excessive.

Farmer, 511 U.S. at 835 (explaining that the

“application of the deliberate indifference

standard is inappropriate in one class of

prison cases: when officials stand accused of

using excessive physical force” (internal

quotation marks and citation omitted)).

Removing the subjective component from

deliberate indifference claims would thus

erode the intent requirement inherent in the

claim. Id.; see also Kingsley, 576 U.S. at 408

(Scalia, J., dissenting) (warning that the Fourteenth Amendment‘s “Due Process Clause is

not a font of tort law to be superimposed

upon that state system” (internal quotation

marks and citation omitted)).

Strain, 977 F.3d at 992-993.

The Tenth Circuit in Strain correctly recognized

that the Supreme Court has cautioned against reaching

the resolution that Plaintiff sought. Id. at 993. The

court stated, “Extending Kingsley to eliminate the

subjective component of the deliberate indifference

standard in the Tenth Circuit would contradict the

Supreme Court’s rejection of a purely objective test in

Farmer and our longstanding precedent. Id. at 993,

citing, Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.

1997, 138 L.Ed.2d 391 (1997) (“We reaffirm that if a

13

precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”).

The Strain court said, “Although other circuits have

relied on the ‘broad language’ of Kingsley to apply a

purely objective standard to Fourteenth Amendment

deliberate indifference claims, we choose forbearance.

Strain, 977 F.3d at 993, citing, R.A.V. v. City of St.

Paul, Minn., 505 U.S. 377, 386 n.5, 112 S.Ct. 2538,

120 L.Ed.2d 305 (1992) (“It is of course contrary to all

traditions of our jurisprudence to consider the law on

this point conclusively resolved by broad language in

cases where the issue was not presented or even

envisioned.”).

The Strain court concluded:

At no point did Kingsley pronounce its

application to Fourteenth Amendment deliberate indifference claims or otherwise state

that we should adopt a purely objective

standard for such claims, so we cannot

overrule our precedent on this issue. United

States v. White, 782 F.3d 1118, 1126-27 (10th

Cir. 2015) (holding that one “panel of this

court cannot overrule the judgment of another

panel absent en banc consideration or an

intervening Supreme Court decision that is

contrary to or invalidates our previous

analysis” (citation omitted)). We therefore join

our sister circuits that have declined to

extend Kingsley to deliberate indifference

claims and will apply our two-prong test to

Plaintiff’s claims.

14

Strain, 977 F.3d at 933.

This Court should adopt the sound reasoning of

the Tenth Circuit in Strain as superior to Petitioners’

reasoning in the instant case for the very reasons so

well-articulated by that court.

3.

Even After Kingsley, Many Circuits Have

Properly Recognized That Kingsley Cannot Be

Applied to Medical “Deliberate Indifference”

Claims to Eliminate the Subjective

Component and Impose Resulting Liability on

the Defendants

The Fourteenth Amendment requires government

officials to provide basic necessities, including medical

care, to pretrial detainees. Ireland v. Prummell, 53

F.4th 1274, 1287 (11th Cir. November 14, 2022). A

failure to provide such care violates that amendment,

which is actionable under § 1983. Id. To prevail on

such a claim, a litigant must satisfy both an objective

and a subjective inquiry. Id. The objective inquiry

requires a plaintiff to establish the existence of an

“objectively serious medical need.” Id. The subjective

inquiry requires a plaintiff to prove that a government

official was “deliberatively indifferent” to that need. Id.

The Eleventh Circuit in Ireland provided:

We have synthesized this “deliberate indifference” inquiry into four elements: (1) the

official was aware of facts from which the

inference could be drawn that a substantial

risk of serious harm exists, (2) the official

actually drew that inference, (3) the official

disregarded the risk of serious harm, and (4)

the official’s conduct amounted to more than

gross negligence.

15

Id.

In Williams v. Young, 695 Fed. Appx. 503 (11th

Cir. 2017), the court explained deliberate indifference

as to a pre-trial detainee as follows:

For medical treatment to rise to the level of

a constitutional violation, the care must be

so grossly incompetent, inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness. Mere

incidents of negligence or malpractice do not

rise to the level of constitutional violations.

Nor does a simple difference in medical opinion

between the prison’s medical staff and the

inmate as to the latter’s diagnosis or course

of treatment support a claim of cruel and

unusual punishment. To show deliberate indifference to a serious medical need, therefore,

a plaintiff must demonstrate that defendants’

response to a serious medical need was poor

enough to constitute an unnecessary and

wanton infliction of pain, and not merely

accidental inadequacy, negligence in diagnosis

or treatment, or even medical malpractice

actionable under state law.

Id. at 505-506.

It has been clearly established in the Fifth Circuit

since at least 1989 that pretrial detainees have a

Fourteenth Amendment right to be protected from a

known risk of suicide, and it is well-settled law that

jail officials violate this right if they have actual

knowledge of the substantial risk of suicide and

respond with deliberate indifference. Sanchez v. Oliver,

995 F.3d 461, 466 (5th Cir. 2021). A state jail official’s

16

constitutional liability to pretrial detainees for episodic

acts or omissions should be measured by a standard

of subjective deliberate indifference. Id. at 473. To

satisfy this standard a prison official must both be

aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and he must also draw the inference. Id. Deliberate

indifference is a high standard to meet. Id. Unsuccessful

medical treatment, acts of negligence or medical malpractice do not constitute deliberate indifference. Id.

However, if an official has subjective knowledge that

a pretrial detainee is a substantial suicide risk, the

official shows a deliberate indifference to that risk by

failing to take reasonable measures to abate it. Id.

The Sixth Circuit has consistently applied the

same “deliberate indifference” framework to Eighth

Amendment claims brought by convicted prisoners as

Fourteenth-Amendment claims brought by pretrial

detainees. Griffith v. Franklin Cty., 975 F.3d 554, 567

(6th Cir. 2020). This two-part framework contains both

an objective component—a sufficiently serious medical

need—and a subjective component—a sufficiently culpable state of mind. Id. The court further stated that

whatever Kingsley requires, it is more than negligence

because liability for negligently inflicted harm is

categorically beneath the threshold of a constitutional

due process violation so as to impose liability under 42

U.S.C. § 1983. Griffith, 975 F.3d at 570.

4.

There Is No Constitutional Basis for a

Distinction Between Pretrial and Convicted

Inmates Other Than Use of Force Under

Kingsley.

Decisions of this Court regarding convicted inmates’

Constitutional rights have long been applied to pretrial

17

detainees. This appropriate application is also true as

countless lower court cases evidence. In the seminal

case of Bell v. Wolfish, 441 U.S. 520 (1979), this Court

recognized that “simply because prison inmates retain

certain Constitutional rights does not mean that these

rights are not subject to restrictions and limitations.”

This Court went on to hold that this principle applies

equally to pretrial detainees and convicted prisoners.

Id. at 546.

In Turner v. Safley, 482 U.S. 78 (1987) this Court

examined the constitutionality of regulations affecting

inmate correspondence and inmate marriages under

the First Amendment. In so doing this Court made no

distinction between pretrial detainees and convicted

inmates. Turner is heralded as a leading Supreme

Court decision in the area of correctional law and is

universally applied as precedent to both pretrial and

convicted inmates.

In Estelle v. Gamble, 429 U.S. 97, 104 (1976) this

Court examined whether an inmate’s Eighth Amendment rights were violated for failure of the correctional facility to provide adequate medical care. Estelle

is the foundation for the legal analysis regarding

medical care and is universally applied to both pretrial

and convicted inmates. Further, “Medical malpractice

does not become a constitutional violation merely

because the victim is a prisoner.” Estelle, 429 U.S. at

106. Matters of medical judgment are, “[a]t most . . .

medical malpractice, and as such the proper forum is

the state court . . . Estelle, 429 U.S. at 107.

In Wilson v. Seiter, 501 U.S. 294 (1991), an inmate

filed an action against prison officials under 42

U.S.C.S. § 1983. The inmate alleged that a number of

the conditions of his confinement constituted cruel

18

and unusual punishment in violation of the Eighth

and Fourteenth Amendments. In examining the issue,

this Court stated that “[W]hether one characterizes

the treatment received by [the prisoner] as inhumane

conditions of confinement, failure to attend to his

medical needs, or a combination of both, it is appropriate

to apply the ‘deliberate indifference’ standard articulated in Estelle.” Id. at 303. The Wilson precedent is

universally applied to both pretrial and convicted

inmates as it relates to conditions of confinement

cases and alleged violations of 42 U.S.C. § 1983.

In Farmer v. Brennan, 511 U.S. 825 (1994), this

Court held that a prison official may be held liable

under the Eighth Amendment for acting with “deliberate indifference” to inmate health or safety only if

the official knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to

take reasonable measures to abate it. Farmer is the

foundational precedent that is applied by the courts

without distinction as to the inmate’s convicted status

regarding the duty to protect as well as other claims

alleging constitutional violations of the Eighth

Amendment. In that case this court made no distinction

between pretrial detainees and convicted inmates.

In Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)

this Court examined the religious rights of “current

and former inmates” of institutions operated by the

Ohio Department of Rehabilitation and Correction

under the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc

(2000), et seq., without making a distinction between

pretrial detainees and convicted inmates. Cutter, 544

U.S. at 723. RLUIPA’s arms extend to all institutionalized persons, focusing on those incarcerated in jails

19

and prisons. This Court unanimously held that RLUIPA

was constitutionally enacted and applied to all correctional facilities.

In Florence v. Board of Chosen Freeholders of the

County of Burlington, 132 S.Ct. 1510 (2012), this

Court echoed Bell and affirmed Turner by holding that

correctional officials have a legitimate governmental

interest to maintain safety and security for all who

live and work in these institutions. This Court has

recognized that under the Fourth and Fourteenth

Amendments even arrestees are treated the same as

pretrial detainees and convicted inmates for the

purpose of strip searches when entering general

population. Florence, 132 S.Ct. at 1523.

In Holt v. Hobbs, 135 S.Ct. 853 (2015) this Court

held a Department’s policy violated RLUIPA, which

prohibits a state or local government from taking any

action that substantially burdens the religious exercise

of an “institutionalized person,” unless the government

demonstrates that the action constitutes the least

restrictive means of furthering a compelling governmental interest. This Court did so without making a

distinction between pretrial and convicted inmates.

In sum, this Court does not distinguish between

pretrial and convicted inmates in examining claims of

Constitutional violations relating to conditions of

confinement (Bell), involving rights of freedom of speech

and marriage of inmates (Turner), inadequate medical

care of inmates (Estelle), conditions of confinement

(Wilson), duty to protect inmates (Farmer), freedom of

religion of inmates (Cutter and Holt), or strip searches

of inmates (Florence). Use of force claims stand alone

in such distinctions and because of their unique

nature, that distinction should remain.

20

CONCLUSION

Based on this Court’s well-established precedent,

deliberate indifference to medical needs claims under

the Fourteenth Amendment for pre-trial detainees

must contain both an objective test and a subjective

test. The subjective test requires an official both be

aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and they must also draw the inference. This Court’s

holding in Kingsley that excessive force claimants only

have to establish an objective component did not

eliminate the subjective component required in all

other constitutional claims by pre-trial detainees.

Accordingly, Petitioners’ Petition for Certiorari should

be dismissed. Alternatively, this Court should reaffirm

that deliberate indifference to medical needs claims

under the Fourteenth Amendment for pre-trial

detainees must contain both an objective element and

a subjective element as well-established by this

Court’s precedent in Estelle and its progeny.

21

Respectfully submitted,

Gregory C. Champagne

Counsel of Record

Maurice E. Bostick

ST. CHARLES PARISH SHERIFF’S

OFFICE

260 Judge Edward Dufresne Pkwy.

Luling, LA 70070

(985)783-2883

SheriffGC@stcharlessheriff.org

Counsel for Amicus Curiae

January 9, 2024