Amicus Curiae Brief — Wilson v. Seiter

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PEARLY L, WILSON, PETITIONER

v.

RICHARD SEITER, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

a. KENNETH W. STARR

Zs Solicitor General x

Z JOHN R. DUNNE 4

4 Assistant Attorney General 4

: DAVID L. SHAPIRO 4

y Deputy Soiicitor General 4

e ROGER CLEGG 3

i Deputy Assistant Attorney General

te MICHAEL R. DREEBEN

Assistant to the Solicitor General

: David K. FLYNN a

; THOMAS E. CHANDLER *

Altorneys q

Department of Justice 3

Washington, D.C. 20530 5

(202) 514-2217

QUESTION PRESENTED

The United States will address the following question:

Whether the “malicious and sadistic” intent requirement

of Whitley v. Albers, 475 U.S. 312 (1986), applies to

Eighth Amendment challenges to conditions of confine-

ment that are not a response to needs of prison safety and

security.

(I)

¥

TABLE OF CONTENTS

Interest of the United States .....................

Statement

Argument:

eeeeseeee sees eeeeseeseeseeeseeeeseeeoneeeeee eens

The court of appeals erred in applying the

“malicious and sadistic” intent standard to an

Eighth Amendment claim challenging general con-

ditions of confinement ........................

A. The “malicious and sadistic” intent standard

Conclusion

Cases:

Bell v.

Berg v.

does not apply to a claim challenging general

conditions of confinement ...............

The claim that general prison conditions

violate the Eighth Amendment should be

resolved by examining the objective condi-

tions at the particular institution, not the

subjective state of mind of the responsible

ESS STN ES es ee

If a state of mind inquiry is relevant in a

prison conditions of confinement case, the

appropriate requirement is that of “deliber-

a

7eTFe ee eeseeveeeaeeesese eee eceaeeoeoeoeanatceonoovoeeneses

TABLE OF AUTHORITIES

Wolfish, 441 U.S. 520 (1979) .............

Kincheloe, 794 F.2d 457 (9th Cir. 1986) ...

Berry v. City of Muskogee, 900 F.2d 1489 (10th

Cir.

a eo eee 14, 22,

Birrell v. Brown, 867 F.2d 956 (6th Cir. 1989) .....

City of Canton v. Harris, 109 S. Ct. 1197 (1989) ...

(111)

14

23, 24

4

23, 24

IV

Cases — Continued: Page

Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988) ... 12

Cortez-Quinones v. Jimenez-Nettleship, 842 F.2d

Os voce wade Gulab cee ied bacecs 23

Davidson v. Cannon, 474 U.S. 344 (1986) ........ 21

DeShaney v. Winnebago County Social Services

Bah, GPG. Pe has hic ces ivicecss: 21

Duckworth v. Franzen, 780 F.2d 645 (7th Cir.

1985), cert. denied, 479 U.S. 816 (1986) ........ 24

Estelle v. Gamble, 429 U.S. 97 (1976) .......... 7, 8, 10, -

15, 16, 18, 20, 21, 22

Evans v. Dugger, 908 F.2d 801 (11th Cir. 1990) ... 14

Ford v. Wainwright, 447 U.S. 399 (1986) ......... 17

Foulds v. Corley, 833 F.2d 52 (Sth Cir. 1987) ..... 14

Gillespie v. Crawford, 833 F.2d 47 (1987), vacated,

858 F.2d 1101 (Sth Cir. 1988) .............. 14, 21, 23

Graham v. Connor, 109 S. Ct. 1865 (1989) ....... 15, 26

Gregg v. Georgia, 428 U.S. 158 (1976) ......... 8, 16, 17

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ... 15

Hutto v. Finney, 437 U.S. 678 (1978) ............ 18, 19

Illinois v. Rodriguez, 110 S. Ct. 2793 (1990) ...... 26

Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C.

= RR ERR a SS 15, 20

Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert.

denied, 414 U.S. 1033 (1973) ..............4-. 6

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) .. 14, 22, 23

Louisiana ex rel. Francis v. Resweber, 329 U.S.

Ss Sade sh bncbhs cee ae eee evccenccves 16

Morgan v. District of Columbia, 824 F.2d 1049

ce ee we 14, 23

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). . 25

Pell v. Procunier, 417 U.S. 817 (1974) ........... 13

Procunier v. Martinez, 416 U.S. 396 (1974) ....... 13, 25

Pugh v. Locke, 559 F.2d 283 (Sth Cir. 1977), rev’d

See SE, Se UP de PU CUPPED oc ccc tcc ccccdececs: 18

Revere v. Massachusetts General Hospital, 463

i ET. oot bll ks. ebebull hidnes ea 25

Rhodes v. Chapman, 452 U.S. 337 (1981) ..... 4, 5, 8, 9,

17, 18-19, 20, 21

Vv

Cases — Continued: Page

Robinson v. California, 370 U.S. 660 (1962) ...... > a

Ruefly v. Landon, 825 F.2d 792 (4th Cir. 1987) ... 23

Stubbs v. Dudley, 849 F.2d 83 (2d Cir. 1988), cert.

denied, 489 U.S. 1034, 1036 (1989) ............ 12

Thompson v. Oklahoma, 487 U.S. 815 (1988) ... .. 17

Thornburgh v. Abbott, 109 S. Ct. 1874 (1989) .... 13

Trop v. Dulles, 356 U.S. 86 (1958) .............. 8

Unwin v. Campbell, 863 F.2d 124 (ist Cir. 1988) . . 14

West v. Aikins, 487 U.S. 42 (1987) .............. 21

Whitiey v. Albers, 475 U.S. 312 (1986) ........... passim

Constitution and statutes:

U.S. Const.:

Amend. VIII (Cruel and Unusual Punishments

EE ne Ee passim

a i a a 2

ns ac eeeces 21, 25

Civil Rights of Institutionalized Persons Act, 42

U.S.C. 1997 et seq.:

ER ee a |

ns ki occ cetecvccce’ l

ee 2

EE ee ee 2

NS aoc ile ececbecikcceccuces 2

EE 2, 21, 23

English Bill of Rights of 1689 .................. 15

Miscellaneous:

Granucci, “Nor Cruel and Unusual Punishments

Inflicted”: The Original Meaning, 57 Calif. L.

EE a a NG ee 16

J. Murray, A New English Dictionary on Historical

De cwceee 22

The Oxford English Dictionary (1933) ........... 22

In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 89-7376

PEARLY L. WILSON, PETITIONER

Vv.

RICHARD SEITER, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents the issue whether the “malicious and

sadistic” intent requirement of Whitley v. Albers, 475 U.S.

312 (1986), applies to prisoners’ Eighth Amendment

challenges to their general conditions of confinement. The

United States has responsibility for enforcing the Civil

Rights of Institutionalized Persons Act (CRIPA), 42

U.S.C. 1997 ef seq., which authorizes the Attorney

General to institute a civil injunctive action against state

officials whenever he has reason to believe they are “sub-

jecting persons residing in or confined to [a prison or cor-

rectional facility] * * * to egregious or flagrant conditions

which deprive such rersons” of rights protected by the

Constitution. 42 U.S.C. 1997a(a). CRIPA also authorizes

the Attorney General to intervene in certain actions seek-

(1)

2

ing relief from unconstitutional conditions in prisons or

correctional institutions. 42 U.S.C. 1997c(a).

In addition, the Bureau of Prisons, operating under the

direction of the Attorney General, has the responsiblity to

manage federal correctional institutions and to provide for

the “safekeeping, care, and subsistence” of persons main-

tained in such facilities. 18 U.S.C. 4001, 4042. Finally, the

Department of Justice defends actions brought by federal

inmates alleging unconstitutional prison conditions.

STATEMENT

1. In 1986, petitioner, a prisoner at the Hocking Cor-

rectional Facility (HCF) in Nelsonville, Ohio, filed suit

against state prison officials under 42 U.S.C. 1983, alleg-

ing that the conditions of confinement at HCF violated his

rights under the Eighth and Fourteenth Amendments.'

Specifically, petitioner alleged that overcrowding, ex-

cessive noise, inadequate heating in winter and cooling in

summer, improper ventilation, unsanitary restrooms, un-

sanitary eating conditions, and housing with mentally and

physically ill inmates amounted to cruel and unusual

punishment. Petitioner requested declaratory and injunc-

tive relief, as well as compensatory and punitive damages.’

J.A. 2-9, 53-54, 62-63.

The parties filed cross-motions for summary judgment.

Petitioner supported his motion with affidavits from in-

mates describing the alleged unconstitutional conditions

of confinement. Several of these inmates also stated that

' The Eighth Amendment, held applicable to the States by the Four-

teenth Amendment in Robinson v. California, 370 U.S. 660 (1962),

provides: “Excessive bail shall not be required, nor excessive fines im-

posed, nor cruel and unusual punishments inflicted.”

2 Everett Hunt, Jr., a second plaintiff, is no longer confined at

HCF.

3

they had contacted prison officials concerning the condi-

tions, but the officials took no action. J.A. 10-39. The

respondenis’ supporting affidavits explained efforts taken

by prison officials to improve conditions within the

prison, and contradicted certain of petitioner’s claims con-

cerning existing conditions at HCF. J.A. 40-52.

The district court granted respondents’ motion for sum-

mary judgment and dismissed the action. J.A. 53-61. The

court recognized that conditions of confinement may,

under certain circumstances, constitute cruel and unusual

punishment, and noted that “[i]t is obduracy and wanton-

ness, not inadvertence or error in good faith, that char-

acterizes the conduct prohibited by the [Eighth Amend-

ment].” J.A. 53-61, quoting Whitley v. Albers, 475 U.S.

312, 319 (1986). Relying on respondents’ affidavits, the

district court concluded that “plaintiffs have been provid-

ed with at least the minimal civilized measure of life’s

necessities and have not been deprived of their Eighth

Amendment right to be free from cruel and unusual

punishment.” J.A. 59. The court also concluded that

“HCF officials do not demonstrate obdurate or wanton

behavior regarding the conditions of HCF.” Ibid.

2. The court of appeals affirmed. J.A. 62-74. The

court first held that the district court had erred to the ex-

tent it had accepted the accuracy. of contested statements

in respondents’ affidavits — thus weighing the evidence — in

concluding that the confiuement conditions did not

amount to cruel and unusual punishment under the Eighth

Amendment. J.A. 66. Nevertheless, the court explained, if

the circumstances set forth in petitioner’s affidavits would

not support an Eighth Amendment violation in anv case,

they did not raise material issues for trial. J.A. 66-70. Ex-

amining petitioner’s affidavits, the court concluded that

petitoner’s claims relating to inadequate cooling, housing

with mentally ill inmates, and overcrowding, even if true,

4 =

did not demonstrate the type of “seriously inadequate and

indecent surroundings” required to establish an Eighth

Amendment violation. /d. at 68, quoting Birrell v. Brown,

867 F.2d 956, 958 (6th Cir. 1989).

With regard to petitioner’s remaining claims, however,

the court found that the conditions described in

petitioner’s affidavits were suggestive of conditions that

could violate the Cruel and Unusual Punishments Clause.

J.A. 68. Accordingly, the court proceeded to consider

whether petitioner had set forth sufficient facts to raise an

inference that respondents acted with the requisite “state

of mind” to support an Eighth Amendment claim. J.A.

70-74. The court noted that Whitley v. Albers, 475 U.S. at

319, had stated that “[i]t is obduracy and wantonness, not

inadvertence or error in good faith, that characterizes the

conduct prohibited by the Cruel and Unusual Punish-

ments Clause.” J.A. 71. The court added that in the Sixth

Circuit “the Whitley standard is not confined to the facts

of that case; that is, to suits alleging use of excessive force

in an effort to restore prison order.” /bid.

Applying those principles, the Sixth Circuit concluded

that petitioner’s affidavits failed to support a reasonable

inference that the respondents acted with “obduracy and

wantonness.” J.A. 71-74. The court stressed that peti-

tioner “dojes] not contend that the [respondents] have

made no efforts to provide [him] with minimally decent

confinement conditions.” J.A. 73. Rather, the court

observed, petitioner’s complaints “are aimed at the results

of those efforts.” /bid. After reviewing the “undisputed

record” indicating that prison officials had taken affirma-

tive steps to improve conditions, the court concluded that

-“confinement conditions may constitute cruel and unusual

punishment only if such conditions ‘compose the punish-

ment at issue.’ ” /bid., quoting Rhodes v. Chapman, 452

U.S. 337, 347 (1981). “Nothing in [petitioner’s] affidavits

5

implies that [respondents] used confinement conditions to

punish [petitioner].” J.A. 73. Finally, the court observed

(ibid.):

[T]he Whitley standard of obduracy and wantonness

requires behavior marked by persistent malicious

cruelty. The record before us simply fails to assert

facts suggesting such behavior. At best, [petitioner’s]

claim evidences negligence on [responden‘s’] parts in

implementing standards for maintaining conditions.

Negligence, Clearly, is inadequate to support an

{EJighth [A]mendment claim.

SUMMARY OF ARGUMENT

The court of appeals erred in requiring “behavior

marked by persistent malicious cruelty” in a case challeng-

ing the general and pervasive conditions of confinement

under the Eighth Amendment. The court purported to ap-

ply the standard set forth in Whitley v. Albers, 475 U.S.

312, 320 (1986), but that case required a showing of a

“malicious[ ] and sadistic{ ]” state of mind in the context

of actions to quell a prison disturbance. The considera-

tions that prompted the Court to formulate that stand-

ard—the intense concern that prison officials must have

for safety and security in a potentially explosive situation,

and the need for quick decisions—do not apply in a chal-

lenge to general prison conditions.

We believe the correct Eighth Amendment analysis, as

applied to a case of this character in which an inmate chal-

lenges systemic prison conditions forming an integral part

of his confinement, should focus on the objective cc .:di-

tions in the prison, rather than on the state of mind of par-

ticular officials. See Rhodes v. Chapman, 452 U.S. 337

(1981). In our view, neither the language, history, nor in-

tent of the Eighth Amendment supports a separate inquiry

6

into the officials’ state of mind. Rather, the issue is simply

whether the punishment itself is objectively “cruel and

unusual.” The absence of an inquiry into the officials’ in-

tent makes it especially important that an Eighth Amend-

ment claimant demonstrate under a rigorous standard that

the conditions at issue are truly “cruel and unusual.”

If a state of mind requirement does apply here, how-

ever, the “deliberate indifference” standard fits the con-

duct at issue. That standard, which falls between simple

negligence and malicious and sadistic intent, focuses atten-

tion on whether responsible officials had knowledge (ac-

tual or constructive) of conditions likely to offend the

Constitution, and failed to take action to remedy those

conditions. The standard should be applied with strong

deference to the difficult circumstances confronting prison

officials in managing a prison facility.

ARGUMENT

THE COURT OF APPEALS ERRED IN APPLYING THE

“MALICIOUS AND SADISTIC” INTENT STANDARD TO

AN EIGHTH AMENDMENT CLAIM CHALLENGING GEN-

ERAL CONDITIONS OF CONFINEMENT

A. The “Malicious And Sadistic” Intent Standard Does Not

Apply To A Claim Challenging General Conditions Of

Confinement

In Whitley v. Albers, 475 U.S. 312 (1986), this Court

heid that the question whether the use of excessive force to

restore order in a prison disturbance violates the Eighth

Amendment “ultimately turns on ‘whether force was ap-

plied in a good faith effort to maintain or restore disci-

pline or maliciously and sadistically for the very purpose

of causing harm.’ ” Jd. at 320-321, quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414

U.S. 1033 (1973). In this case, the court of appeals ap-

7

parently believed that the Whitley standard applies to the

very different type of Eighth Amendment violation alleged

here —a challenge to general and pervasive prison condi-

tions. We believe that the court of appeals’ application of

the Whitley test in this context constitutes error.’

1. To put Whitley in context, it is necessary to examine

two of this Court’s precedents addressing the application

of the Eighth Amendment to claims by prisoners challeng-

ing their experiences in confinement.

In Estelle v. Gamble, 429 U.S. 97 (1976), the Court con-

sidered an inmate’s claim under the Eighth Amendment

based on the failure of prison officials to render adequate

medical care for an injury he received in prison. The Court

began by stating that the Eighth Amendment proscribes

more than physically barbarous punishments; it also

> In this action, petitioner sought injunctive relief against respond-

ents in their official capacity, and damages against respondents in

their individual capacity. The issue before this Court, at this pre-

liminary stage, presents a question common to both aspects of the

case: the appropriate standard for determining whether petitioner’s

allegations in his pleadings and affidavits, if proved, are sufficient to

establish a violation of the Eighth Amendment. Not raised at this

Stage are issues relevant to the imposition of personal liability for

damages if such a violation has occurred. Those issues would include

questions of causation and of personal responsibility for the condi-

tions complained of (i.e., to what extent may a particular individual

be held personally accountable for those conditions), and of the ap-

propriate scope of qualified immunity in a conditions of confinement

case. For example, we believe there is a significant difference, for pur-

poses of personal liability, between a prison official who has

unreasonably failed to resort to available alternatives in order to

alleviate or eliminate inhumane prison conditions, and one who has

been unable to correct those conditions as a result of fiscal constraints

beyond his control. See Brief for the United States as Amicus Curiae

in Brutsche v. Cleveland-Perdue, No. 89-1167, cert. denied (Oct. 29,

1990), at pp. 17-18. (We have furnished the parties here with copies of

our brief in Brutsche.)

8

reaches punishments that “are incompatible with ‘the

evolving standards of decency that mark the progress of a

maturing society,’ ” id. at 102, quoting Trop v. Dulles, 356

U.S. 86, 100, 101 (1958) (plurality opinion), or that “in-

volve the unnecessary and wanton infliction of pain”. 429

U.S. at 102-103, quoting Gregg v. Georgia, 428 U.S. 153,

173 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

Those principles led the Court to conclude that “deliberate

indifference to serious medical needs of prisoners con-

Stitutes the ‘unnecessary and wanton’ infliction of pain

* * * proscribed by the Eighth Amendment.” /d. at 104.

The Court emphasized in Estelle that not every claim of

inadequate medical treatment violates the Eighth Amend-

ment. 429 U.S. at 105. The “inadvertent failure” to pro-

vide medical care, the Court explained, does not constitute

an unnecessary and wanton infliction of pain; thus, claims

of negligent diagnosis or treatment of a medical condition

do not state a violation of the Eighth Amendment. /d. at

105-106. The Court concluded by characterizing the level

of fault required to state a claim of “deliberate indiffer-

ence” (id. at 106):

Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner. In

order to state a cognizable claim, a prisoner must

allege acts or omissions sufficiently harmful to evi-

dence deliberate indifference to serious medical

needs. It is only such indifference that can offend

“evolving standards of decency” in violation of the

Eighth Amendment.

Five years later, in Rhodes v. Chapman, 452 U.S. 337

(1981), the Court considered an Eighth Amendment

challenge to a quite different prison practice: a condition

of confinement involving a practice of assigning a single

cell for every two inmates at a particular correctional

9

facility. In reviewing that challenge, the Court articulated

the basic principles applicable to Eighth Amendment cases

involving conditions of confinement. The Court reaf-

firmed the underlying rule that punishments are cruel and

unusual when they involve “unnecessary and wanton in-

fliction of pain,” or inflict pain “totally without penologi-

cal justification.” Jd. at 346. But the Court also explained

that “the Constitution does not mandate comfortable

prisons,” id. at 349, and that “restrictive and even harsh”

conditions “are part of the penalty that criminal offenders

pay for their offenses against society.” Jd. at 347.

While recognizing that no “static ‘test’ ” can govern the

judicial inquiry into whether conditions of confinement

violate standards drawn from the Eighth Amendment, the

Court admonished that such judgments “should neither be

nor appear to be merely the subjective views of judges,”

but “should be informed by objective factors to the maxi-

mum possible extent.” 452 U.S. at 346. Thus, when “the

conditions of confinement compose the punishment at

issue,” the Eighth Amendment is violated when those con-

ditions “result[ ] in unquestioned and serious deprivations

of basic human needs,” or deprive inmates of the “minimal

civilized measure of life’s necessities.” Jd. at 347. Applying

those standards to the practice of “double-celling” in-

volved in that case, the Court found no constitutional

violation. Jd. at 347-350.

2. In Whitley v. Albers, supra, the Court considered

“what standard governs a prison inmate’s claim that prison

officials subjected him to cruel and unusual punishment

by shooting him during the course of their attempt to quell

* The Court took into account that the double celling at issue “did

not lead to deprivations of essential food, medical care, or sanita-

tion,” “increase violence among inmates,” o; “create other conditions

intolerable for prison confinement.” 452 U.S. at 348.

10

a prison riot.” 475 U.S. at 314. The Court initially ob-

served that not all actions touching a prisoner’s interests

are susceptible to Eighth Amendment analysis; only the

“unnecessary and wanton infliction of pain” rises to the

level of a violation. 475 U.S. at 319. As illustrated by

Estelle v. Gamble, “{tjo be cruel and unusual punishment,

conduct that does not purport to be punishment at all

must involve more than ordinary lack of due care for the

prisoner’s interests or safety.” Jbid. From these principles,

the Court derived the generalization that:

{i]t is obduracy and wantonness, not inadvertence or

error in good faith, that characterizes the conduct

prohibited by the Cruel arid Unusual Punishments

Clause, whether that conduct occurs in connection

with establishing conditions of confinement, supply-

ing medical needs, or restoring official control over a

tumultuous cellblock.

Ibid. The Court added, however, that the requirement of

proving “unnecessary and wanton infliction of pain” is a

general criterion that should be applied “with due regard

for differences in the kind of conduct against which an

Eighth Amendment objection is lodged.” Jd. at 320.

Keeping in mind the need to tailor Eighth Amendment

requirements to the type of conduct under scrutiny, the

Court concluded that the “deliberate indifference” stand-

ard, applied to the denial of medical treatment in Estelle,

should not govern challenges to the use of force in prison

security measurestaken to prevent or resolve disturbances.

In the latter class of cases, “the question whether the

measure taken inflicted unnecessary and wanton pain and

suffering ultimately turns on whether force was applied in

a good faith effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of caus-

ing harm.” 475 U.S. at 320-321. The Court contrasted the

standard employed in Estelle by noting that in evaluating

whether a failure to provide medical care violates the Con-

stitution, a court would normally have no need to balance

“competing institutional concerns for the safety of prison

staff or other inmates.” Jd. at 320. But where force is ap-

plied to calm a prison disruption, “prison officials un-

doubtedly must take into accc unt the very real threats the

unrest presents to inmates and prison officials alike, in ad-

dition to the possible harms to inmates against whom

force might be used.” /bid. In that setting, “a deliberate in-

difference standard does not adequately capture the im-

portance of such competing obligations, or convey the ap-

propriate hesitancy to critique in hindsight decisions

necessarily made in haste, under pressure, and frequently

without the luxury of a second chance.” /bid.

3. In the present case, petitioner challenged the gen-

eral and endemic conditions of his confinement, not the

application v1 force in a particular prison disturbance.

Nevertheless, the court of appeals essentially transposed

Whitley’s heightened “malicious and sadistic” test to the

present context, stating that Whitley is “not confined to

the facts of that case; that is to suits alleging use of ex-

cessive force in an effort to restore prison order.” J.A.

71.9

We disagree with the court of appeals’ transposition of

the Whitley test to the circumstances of this case. Al-

> The court of appeals never actually quoted the “malicious and

sadistic” language used by the Court in Whitley; rather, the court

stated that the “Whitley standard of obduracy and wantonness re-

quires behavior marked by persistent malicious cruelty.” J.A. 73. If

anything, however, the court of appeals’ paraphrase imposes an even

more stringent test. A requirement of “persistent malicious cruelty”

appears to require ongoing wrongful conduct, while the facts and

analysis in Whitley itself imply that an isolated application of force

can violate the Eighth Amendment if the requisite state of mind is

established.

12

though the court correctly noted that the “obdurate and

wanton” formulation serves as a general criterion appli-

cable to Eighth Amendment claims, J.A. 71, the court

failed to heed Whitley’s admonition that different types of

conduct challenged under the Eighth Amendment im-

plicate distinct concerns—an admonition that militates

against a single standard for determining in every case

whether a particular act or practice constitutes “the unnec-

essary and wanton infliction of pain.” 475 U.S. at 320.6 A

case challenging the systemic conditions of confinement

implicates none of the policy considerations that led this

Court to embrace a more rigorous intent standard for

prison disturbance cases and other instances implicating

legitimate security or other penological concerns.’

As the Court in Whitley noted, when officials must act

to restore order within a prison, “decisions [are] necessari-

ly made in haste, under pressure, and frequently without

* Whitley can hardly be read to require a single test in all cases aris-

ing under the Eighth Amendment; the Court in Whitley, while

fashioning a new standard for considering challenges to the use of

force in a prison disturbance, expressly reaffirmed the holding in

Estelle that the deliberate indifference standard applies to claims of in-

adequate medical attention. 475 U.S. at 320.

’ Of course, Whitley is not strictly limited to its facts. See Corselli v.

Coughlin, 842 F.2d 23, 26 (2d Cir. 1988) (applying Whitley’s malicious

and sadistic intent standard to a claim by an inmate injured by a

prison official during a scuffle in the mess hall even though Whitley

was distinguishable, “since that case involved a full scale prison riot”).

In Stubbs v. Dudley, 849 F.2d 83, 86 (1988), the Second Circuit re-

fused to apply Whitley to a claim that officials failed to protect an in-

mate from an assault at the hands of mob of prisoners, because a full-

blown prison riot was not in progress at the time officials acted. Three

Justices dissented from the denial of certiorari, arguing that Whitley

was not limited to prison riots but applied in the setting of Stubbs

because the same type of “competing institutional concerns” and need

for “split-second decision{s}” found in Whitley were present there as

well. Dudley v. Stubbs, 489 U.S. 1034, 1038 (1989).

13

the luxury of a second chance.” 475 U.S. at 320. Further,

prison disturbances involve a significant risk to the safety

of inmates and staff. Prison officials must necessarily act to

protect those persons, for “central to all other corrections

goals is the institutional consideration of internal security

within the corrections facilities themselves.” Pell v. Pro-

cunier, 417 U.S. 817, 823 (1974); Procunier v. Martinez,

416 U.S. 396, 412 (1974); Thornburgh v. Abbott, 1098S. Ct.

1874, 1881 (1989). Consequently, Eighth Amendment

standards must reflect the need to afford officials “wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.” 475 U.S. at 321-322, quoting Bell v. Wolfish, 441

U.S. 520, 547 (1979).

Very different considerations arise with respect to the

general conditions prevailing at a prison facility. These con-

ditions are likely to evolve as the consequence of policy de-

cisions made over time, and shaped by such long-term fac- _

tors as funding levels and available resources. Management

of such continuing and integral features of prison confine-

ment as the provision of food, the housing of inmates, and

the cleaning of living quarters is not a process of reacting to

emergencies; rather, it is part of the regular administration

of the prison as a penal institution. And, while prison of-

ficials must consider their obligation to ensure security and

safety within the prison in any decision affecting prison life,

that factor does not have the same immediacy in establish-

ing and maintaining general conditions of confinement as it

does in dealing with a prison disturbance. Accordingly, the

heightened standard of “malicious and sadistic” intent ap-

plied in Whitley is not appropriate here.*®

* Other than the present decision, the courts of appeals have uni-

formly rejected the extension of Whitley’s malicious and sadistic in-

14

B. The Claim That General Prison Conditions Violate The Eighth

Amendment Should Be Resolved By Examining The Objective

Conditions At The Particular Institution, Not The Subjective

State Of Mind Of The Responsible Officials

The remaining issue is what state-of-mind requirement,

if any, should apply tc the claim here that the general,

systemic conditions of a prison violate the prohibition of

the Eighth Amendment. In our view, that inquiry should

focus on the objective conditions at the prison, not on the

intent of the responsible officials.®

tent standard to conditions of confinement cases. See, e.g., Berry v.

City of Muskogee, 900 F.2d 1489, 1495 (10th Cir. 1990) (Whitley

“carefully preserved” the distinction between “the malicious and

sadistic standard applicable in prison riot situations and the deliberate

indifference standard applicable to more ordinary prison policy deci-

sions”); Evans v. Dugger, 908 F.2d 801, 803-804 (llth Cir. 1990)

(Whitley standard does not apply to claim of inadequate medical at-

tention); Gillespie v. Crawford, 833 F.2d 47, 50 (1987) (per curiam)

(“[p]rison conditions may violate the Eighth Amendment even if they

are not imposed maliciously or with the conscious desire to inflict

gratuitous pain”), vacated in other aspects, 858 F.2d 1101, 1103 (Sth

Cir. 1988) (en banc); Foulds v. Corley, 833 F.2d 52, 54-55 (Sth Cir.

1987) (rejecting Whitley standard in challenge to conditions of con-

finement); Morgan v. District of Columbia, 824 F.2d 1049, 1057-1058

(D.C. Cir. 1987) (rejecting Whitley standard where an inmate was in-

jured in a fight with another inmate allegedly as the result of prison

overcrowding); LaFaut v. Smith, 834 F.2d 389, 391 (4th Cir. 1987) (re-

jecting Whitley standard in action by a paraplegic inmate challenging

his conditions of confinement); Berg v. Kincheloe, 794 F.2d 457,

459-461 (9th Cir. 1986) (rejecting application of malicious and sadistic

intent standard to claim by an inmate assaulted by another inmate).

See also Unwin v. Campbell, 863 F.2d 124, 135 (Ist Cir. 1988) (in

qualified immunity context, the Whitley standard does not apply

when institutional security is not at stake).

* The court of appeals disposed of three of petitioner’s claims in

precisely that way, concluding that even if petitioner’s allegations were

true, those conditions did not rise to the level of Eighth Amendment

violations. J.A. 66-70. With respect to the remaining claims, however,

15

1. The text of the Eighth Amendment does not contain

any irreducible “intent” requirement.'® The language of

the Amendment refers to “punishments,” and thus to

methods or kinds of punishment that are cruel and

unusual. In context, the adjective “cruel” (like the word

“unusual”) is naturally read as describing the type of pro-

hibited punishment alone, without respect to the subjec-

tive intent of the officials responsible for the punishment.'!

In additicn, the history of the Amendment and its

underlying values support its application to particular

methods of punishment, irrespective of the mental state of

the punisher. As this Court has recounted, the language of

the Eighth Amendment was derived from the English Bill

of Rights of 1689. In seventeenth century England, it is

the court addressed only whether petitioner alleged a state of mind

sufficient to support an Eighth Amendment claim. /d. at 70-74. Since

the proper application of Eighth Amendment standards other than the

intent requirement is not at issue here, we express no view about

whether any of those remaining claims involve conditions sufficiently

harsh to constitute cruel and unusual punishment. We note, however,

that if, as we believe, state of mind is not an element of a constitu-

tional violation in a systemic conditions-of-confinement case, courts

must exercise special caution in determining whether objective condi-

tions are sufficiently egregious to violate inmates’ constitutional

rights. Cf. Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir. 1982); In-

mates of Occoquan v. Barry, 844 F.2d 828, 836-837 (D.C. Cir. 1988).

See also pp. 25-26, infra, addressing the need for judicial deference to

judgments of prison officials.

'© Although this Court has remarked that “the terms ‘cruel’ and

‘punishment’ clearly suggest some inquiry into subjective state of

mind,” Graham v. Connor, 109 S. Ct. 1865, 1873 (1989) (dictum),

those terms, as used in the Eighth Amendment, do not invariably re-

quire an intent-based analysis.

'' See Estelle v. Gamble, 429 U.S. at 116-117 (Stevens, J., dissent-

ing) (“whether the constitutional standard has been violated should

turn on the character of the punishment rather than the motivation of

the individual who inflicted it”).

16

generally believed, the phrase “cruel and unusual punish-

ments” was directed against punishments not authorized

by statute and beyond the jurisdiction of the sentencing

court, or disproportionate to the offense involved. Gregg

v. Georgia, 428 U.S. at 169 (opinion of Stewart, Powell,

and Stevens, JJ.). See also Granucci, “Nor Cruel and

Unusual Punishments Inflicted”: The Original Meaning,

57 Calif. L. Rev. 839, 860 (1969). Neither of these con-

cerns necessarily requires the intentional or indifferent in-

fliction of pain or discomfort. Moreover, in framing the

Eighth Amendment, the American drafters were primarily

concerned with prohibited certain methods of punishment

(i.e., “torture[ ]” and other “barbarous” techniques), id. at

842; Gregg, 428 U.S. at 169-170. Again, these methods do

not focus on the intent of the punisher. And, this Court

has interpreted the Cruel and Unusual Punishments

Clause so as to further its underlying purpose of embody-

ing “broad and idealistic concepts of dignity, civilized

standards, humanity, and decency.” Estelle v. Gamble,

429 U.S. at 102. Those values also do not require proof of

subjective intent.!?

This Court’s Eighth Amendment cases outside the

prison conditions context, though they do not speak with

one voice, have not always considered the intent of the of-

ficials applying the punishment. For example, in Louisi-

ana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the

Court held that a second attempt to electrocute an inmate,

after a first effort had failed, was not unconstitutional,

because the initial failure was “an unforseeable accident,”

and “[t}here was no purpose to inflict unnecessary pain

'2 It is noteworthy that, in Gregg, where the Court first referred to

the “unnecessary and wanton infliction of pain,” 428 U.S. at 173, it

was using the phrase to describe an excessive punishment, not to

describe the state of mind of the person inflicting that punishment.

17

nor any unnecessary pain involved in the proposed exe-

cution.” Id. at 464 (plurality opinion) (emphasis added).

While the first part of the formulation focuses on the in-

tent of government officials, the italicized phrase suggests

that if the pain was truly “unnecessary,” it would be un-

constitutional even if accidental. In Robinson v. Califor-

nia, 370 U.S. 660, 666-667 (1962), the Court concluded

that under the Eighth Amendment, a State cannot make it

a criminal offense to be a narcotics addict; no showing of

improper intention on the part of government actors is re-

quired. And much of the Court’s capital punishment

jurisprudence has measured the standards set by state law

against the requirements of the Constitution without con-

sidering the state of mind of individual government

actors.'? See also pp. 19-21, infra (discussing prison condi-

tions cases).

2. Reasons of principle also support the use of an ob-

jective standard to resolve claims of systemically inade-

quate prison conditions. The constraints and hardships

that characterize prison life are an integral part of the

punishment imposed by confinement, not conditions in-

compatible with it. Rhodes v. Chapman, 452 U.S. at 347,

349. But the “wanton and unnecessary infliction of pain”

on inmates cannot be justified by any legitimate penologi-

cal interest. When general conditions of confinement are

so severe that they result in “unquestioned and serious

deprivations of basic human needs,” or “deprive inmates

of the minimal civilized measure of life’s necessities,” id. at

'3 See, e.g., Ford v. Wainwright, 477 U.S. 399 (1986); Thompson v.

Oklahoma, 487 U.S. 815 (1988). Although the death penalty receives

unique Eighth Amendment treatment, id. at 856 (C’Connor, J. con-

curring), the Court’s consideration of the Amendment in that context

without regard to intent is nevertheless relevant here.

18

347, the inmates are subjected to the kind of suffering that

triggers Eighth Amendment concerns. '4

The standards described in Rhodes are rigorous ones,

but when widespread, systemic deprivations of that nature

are alleged and properly supported, the state of mind of

the responsible officials is not relevant to the ultimate

question whether those conditions inflict wanton and un-

necessary pain.'*> Rather, judicia) consideration of such

cases (which typically seek injunctive relief) should focus

on objective conditions as experienced by the inmates. The

reason for structuring the inquiry in that fashion is

straightforward. Prison conditions may conceivably have

deteriorated through neglect or as a result of official indif-

ference to prisoners’ needs; more likely, the conditions

result from the sheer lack of resources and overwhelming

demands placed on prison officials, despite the officials’

efforts to ensure adequate food, safety, and sanitation for

those in their custody. See Rhodes v. Chapman, 452 U.S.

'* Although the Court in Rhodes did not explain the meaning of the

quoted phrases, it gave some insight into the nature of the conditions

that fall below applicable thresholds by its citation, 452 U.S. at 347, of

Hutto v. Finney, 437 U.S. 678 (1978), in which the district court had

characterized the prison conditions under scrutiny as “a dark and evil

world completely alien to the free world,” id. at 681—a statement

made readily understandable by the Hutto Court’s detailed description

of those conditions. /d. at 681-682. See also Rhodes v. Chapman, 452

U.S. at 355 (Brennan, J., concurring), quoting Pugh v. Locke, 559

F.2d 283 (Sth Cir. 1977), rev’d in part on other grounds, 438 U.S. 781

(1978) (per curiam).

'S The present case does not involve a complaint growing out of an

isolated incident or a transitory condition. Such a case may present

considerations more analogous to those involved in Estelle v. Gamble,

or Whitley v. Albers. Moreover, such cases often involve only actions

for damages against officials in their individual capacity, thus raising

questions of personal accountability and qualified immunity. See p. 7

n.3, supra; p. 19 n.16, infra.

—

19

at 359-360 (Brennan, J., concurring). The conduct and

motives of officials may well affect the form of relief that

is appropriate upon the finding of a violation. But serious-

ly inhumane, pervasive conditions should not be insulated

from constitutional challenge because the officials manag-

ing the institution have exhibited a conscientious concern

for ameliorating its problems, and have made efforts

(albeit unsuccessful) to that end. Nor is the concern to

avoid judicial second-guessing of particular, discretionary

decisions by prison officials as pressing in the context of

pervasive, continuing conditions. From the vantage point

of those who are punished by such conditions, the failure

of the government to meet inmates’ basic human needs

constitutes cruel and unusual punishment whether or not

fault can be clearly ascribed to the particular officials

responsible for running the facility.'®

3. An objective test is consistent with the approach

marked out in Rhodes v. Chapman—the only decision of

this Court to address the constitutionality of generalized

'© Of course, an objective analysis would take into account the pur-

poses asserted by prison officials to justify the establishment of par-

ticular conditions. For example, particular housing arrangements may

respond to prison security concerns in which prison officials are en-

titled to a wide range of deference. Rhodes v. Chapman, 452 U.S. at

349 n.14. The duration of the conditions, which may relate to their

cause, is also a factor. Cf. Hutto v. Finney, 437 U.S. 678, 686-687

(1978) (“A filthy, overcrowded cell and a diet of ‘grue’ might be

tolerable for a few days and intolerably cruel for a week or a

month.”). An unheated prison during a cold winter may be viewed as

inflicting unnecessary pain, but if the problem is a temporary one

caused by a broken boiler that officials have endeavored to fix, the

situation does not involve the kind of pervasive conditions that can be

viewed as an integral part of the penal confinement itself. Courts

faced with constitutional challenges to particular conditions of con-

finement can readily take such considerations carefully into account in

resolving such claims.

20

conditions of prison confinement. Justice Powell’s opin-

ion for the Court focused solely on the prison conditions

themselves, rather than on the officials’ state ot mind, in

considering whether there was a violation.'’ In emphasiz-

ing that the Court was considering “for the first time” the

Eighth Amendment limitations “upon the conditions in

which a State may confine those convicted of crimes,” 452

U.S. at 344-345, Rhodes necessarily implied that Estelle v.

Gamble, and the state of mind requirement applied in that

case, did not establish the governing legal standards when

general conditions of confinement are challenged. '®

Although some of the more general language in Whitley

v. Albers, 475 U.S. at 319, appears to contemplate an in-

quiry into state of mind in the typical Eighth Amendment

prison case, that decision did not actually confront allega-

tions of systemically deficient prison conditions of the sort

alleged here. Indeed, the Court stressed in Whitley that the

formulation of Eighth Amendment standards requires

careful attention to the “differences in the kind of conduct

against which an Eighth Amendment objection is lodged.”

475 U.S. at 320. The Court in Whitley suggested that the

conduct at issue in that case (action taken to restore prison

order), as well as the conduct at issue in Estelle (diag-

nosing and treating a medical condition), did “not purport

to be punishment at all.” /d. at 319.'* In contrast, the gen-

'? At the same time, the Court emphasized that, to constitute an

Eighth Amendment violation, it is not enough that the conditions of

confinement are “restrictive and even harsh”; constitutional limits are -

exceeded only when the condit' 1s result in deprivation of the

“minimal civilized measure of life’s necessities.” 452 U.S. at 347.

'® See Inmates of Occoquan v. Barry, 844 F.2d 828, 837 (D.C. Cir.

1988) (“The demand for objective facts going to essential human needs

is, we believe, the clear message of Rhodes.”).

'? Because they were not general conditions cases—but rather

challenges to an isolated incident — Whitley and Estelle appear to have

le De me

21

eral and pervasive conditions of confinement may prop-

erly be considered part of the punishment. See Rhodes,

452 U.S. at 347. When the challenged conduct does not

purport to be punishment, there are sound reasons to in-

quire into prison officials’ state of mind before finding a

violation.2° But those reasons do not apply when general

prison conditions, which are an integral aspect of the

penalty of confinement, are so inhumane so as to result in

“unquestioned and serious deprivations of basic human

needs.” Rhodes, 452 U.S. at 347.?'

implicated only Section 1983 claims for personal liability and dam-

ages, where faciors other than the objective conditions of confinement

would be relevant. See p. 7 n.3, supra.

20 The situation in Estelle—the denial of adequate medical

care —illustrates the point. Government is required to provide medical

care to prison inmates, since the incarcerated prisoner has no other

options, DeShaney v. Winnebago County Social Services Dep't, 489

U.S. 189, 200 (1989); West v. Atkins, 487 U.S. 42, 54-55 (1987);

Estelle, 429 U.S. at 103. But the inherent nature of medical care is

such that good faith, or even negligent, mistakes are an inevitable by-

product of providing the service in the first place. The risk of medical

malpractice is not appreciably different for prison inmates than for

other persons. Accordingly, once government has furnished access to

medical care, it has satisfied the basic requirements imposed by the

Constitution. To require government to furnish error-free medical

care aS a matter of constitutional law would not only impose an

unrealistic standard of care, but would also seek to assure a level of

protection that is essentially unrelated to the goal of avoiding cruel

and unusual “punishment.” Cf. Davidson v. Cannon, 474 U.S. 344

(1986) (Due Process Clause is not violated by the negligent failure of

prison officials to protect an inmate against an assault by another

prisoner).

2! See Gillespie v. Crawford, 833 F.2d 47, 50 (Sth Cir. 1987) (per

curiam) (“Unlike conduct that does not purport to be punishment al

all, the Court has not made intent an element of a cause of action

alleging unconstitutional conditions of confinement.”).

22

C. If A State Of Mind Inquiry Is Relevant In A Prison Conditions

Of Confinement Case, The Appropriate Requirement Is That

Of “Deliberate Indifference”

If the Court determines that state of mind is relevant to

the question whether an Eighth Amendment violation has

occurred, we believe that the deliberate indifference test,

properly qualified, strikes the correct balance in this con-

text. The deliberate indifference standard is consistent

with the accepted meaning of the adjective “cruel” when

used to refer to a person.?? And deprivations affecting

basic human needs for shelter, food, and sanitary condi-

tions have in common with the denial of medical care at

issue in Estelle that in these areas the inmate depends on

the prison to provide for his needs, and inadequate per-

formance “may result in pain and suffering which no one

Suggests would serve any penological purpose.” Estelle,

429 U.S. at 103.

The deliberate indifference standard, however, “is not

self-defining.” Berry v. City of Muskogee, 900 F.2d 1489,

1495 (10th Cir. 1990). As this Court has made clear, the

standard requires more than negligence, Estelle, 429 U.S.

at 105-106, but less than malicious and sadistic intent,

Whitley, 475 U.S. at 320.23 We believe the proper focus of

the deliberate indifference standard, in the first instance,

should be on whether prison officials had knowledge of

2 See J. Murray, A New English Dictionary on Historical Prin-

ciples 1216 (1893) (defining “cruel” to mean “indifferent to or taking

pleasure in another’s pain or distress” as applied to a person) (dic-

tionary reissued in 1933 as The Oxford English Dictionary).

7) See also Berry v. City of Muskogee, 900 F.2d at 1495-1596

(deliberate indifference requires a higher degree of fault than

negligence but “remains lower than the intentional and malicious in-

fliction of injury reflected in the Whitley standard”); LaFaut v. Smith,

834 F.2d at 392 n.5 (an inmate need not prove that prison officials in-

tended to deprive him of medical care). :

23

the conditions that are very likely to offend the Constitu-

tion. Actual knowledge of the conditions, coupled with

the failure to act (the “deliberate indifference”), would or-

dinarily satisfy the standard.?*

Actual knowledge, however, is not always required. For

example, knowledge of prison conditions may properly be

inferred if prison officials deliberately shicld themselves

from such knowledge. Cf. City of Canton v. Harris, 109

S. Ct. 1197, 1205 n.10 (1989) (municipality may be liable

under 42 U.S.C. 1983 for failure to train only if failure

amounts to deliberate indifference to constitutional rights;

24 This position is generally consistent with decision of the lower

federal courts. See, e.g., Berry v. City of Muskogee, supra (an official

acts with deliberate indifference if his conduct “disregards a known or

obvious risk that is very likely to result in the violation of the

prisoners’ constitutional rights”); LaFaut v. Smith, 834 F.2d at 394

(prison officials acted with deliberate indifference in neglecting the

needs of a paraplegic inmate where the evidence established that a

prison official “was fully advised both of the inhumane conditions of

{the inmate’s] confinement and the failure to provide him with the

needed therapy” and did nothing for almost eight months); Cortes-

Quinones v. Jimenez-Nettleship, supra (evidence was sufficient to find

that prison officials were deliberately indifferent to the needs of a

psychiatrically disturbed prisoner in an overcrowded jail since prison

officials knew or should have known of the risks of housing a mental-

ly ill prisoner with the general prison population and failed to act);

Morgan v. District of Columbia, 824 F.2d at 1058 (deliberate indif-

ference requires showing that officials knew or should have known of

obvious unreasonable risk of harm and were “outrageously insensitive

or flagrantly indifferent to the situation and took no significant action

to correct or avoid the risk of harm”); Gillespie v. Crawford, 833 F.2d

at 50 (inmates’ allegations that they repeatedly complained, without

results, about the conditions of their confinement are sufficient to

state a claim); Ruefly v. Landon, 825 F.2d 792, 794 (4th Cir. 1987) (in

an action by an inmate assaulted by a fellow inmate, complaint failed

to state a claim because it did not allege that prison officials knew or

had reason to know that the other inmate posed a specific risk of

harm).

24

where need to train is “plainly obvious” to officials, failure

may be characterized as deliberate indifference). More-

over, if the potential harm from general conditions is so

great that prison officials should have known of those

conditions and foreseen the harm, the factfinder may infer

the requisite knowledge in appropriate cases.?°

Nor would the fact that individual prison officials have

taken some action in response to a deficient condition

preclude a finding of an Eighth Amendment violation. Ac-

tions that fall short of remedying demonstrated inhumane

conditions may fail to dispel the inference of indifference

arising in this context from pervasively inadequate condi-

tions. In such a case, the government officials and institu-

tions responsible for the commitment of resources may

have, collectively, exhibited the requisite “deliberate indif-

ference” to the problem at hand by failing to appropriate

funds to defray the expense of maintaining adequate con-

ditions; although the individual prison officials may not

have made those judgments, they are appropriately called

upon to answer for them when sued in their official

capacity.?¢

25 Some courts have equated deliberate indifference with reckless-

ness. See, e.g., Duckworth v. Franzen, 780 F .2d 645, 652-653 (7th Cir.

1985) (equating deliberate indifference with criminal recklessness,

which implies “an act so dangerous that the defendant’s knowledge of

the risk can be inferred”), cert. denied, 479 U.S. 816 (1986). But see

Berry v. City of Muskogee, 900 F.2d at 1495-1496 & n.9 (stating that

deliberate indifference standard is not as high as criminal recklessness,

and noting that the Supreme Court has never ruled on the precise rela-

tionship among gross negligence, deliberate indifference, and reckless-

ness in the Eighth Amendment context). This Court has suggested in a

different context that deliberate indifference requires proof of more

culpable conduct than gross negligence. City of Canton v. Harris, 109

S. Ct. 1197, 1204 n.7 (1989) (Section 1983 action alleging a city’s

failure to train).

2¢ With respect to the officials’ liability in damages when sued in

their personal capacity, see p. 7 n.3, supra.

The approach suggested in text comports with the recognition that

ne

- i a tt tet a st =

25

A deliberate indifference standard permits the necessary

deference to prison officials’ judgments about security and

other important penological concerns. This Court has

noted that. “the problems that arise in the day-to-day

operation of a corrections facility are not susceptible to

easy solutions. Prison administrators therefore should be

accorded wide-ranging deference in the adoption and ex-

ecution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to

maintain institutional security.” Bell v. Wolfish, 441 U.S.

520, 547 (1979). Moreover, the Court has recognized that

judicial deference is warranted “because the operation of

our correctional facilities is peculiarly the province of the

Legislative and Executive Branches of our Government,

not the Judicial.” Jd. at 548. See also O’Lone v. Estate of

Shabazz, 482 U.S. 342, 353 (1987) (courts should not

“substitute [their] judgment * * * on difficult and sensitive

matters of institutional administration * * * for the de-

terminations of those charged with the formidable task of

running a prison”); Procunier v. Martinez, 416 U.S. 396,

404-405 (1974) (“[T]he problems of prisons * * * are not

readily susceptible of resolution by decree. * * * [W]here

state penal institutions are involved, federal courts have a

further reason for deference to the appropriate prison au-

thorities.”); Rhodes v. Chapman, 452 U.S. at 351 & n.16

prison management is “peculiarly within the province of the legislative

and executive branches of government” because the resolution of

prison problems “requires expertise, comprehensive planning, and the

commitment of resources.” Procunier v. Martinez, 416 U.S. 396,

404-404 (1974) (emphasis added). See also Revere v. Massachusetts

General Hospital, 463 U.S. 239, 245 (1983) (“If, of course, the govern-

mental entity can obtain the medical care needed for a detainee only

by paying for it, then it must pay.”; construing Due Process Clause).

26

(addressing magnitude of the problems of prison admini-

stration).?7

* * * * *

The court of appeals incorrectly applied the heightened

malicious and sadistic intent standard to the claim here

that the systemic and pervasive conditions of confinement

violate the Eighth Amendment. Accordingly, the judg-

ment should be vacated and the case remanded for further

consideration under the proper standard. See Graham v.

Connor, 109 S. Ct. 1865, 1873 (1989); Illinois v.

Rodriguez, 110 S. Ct. 2793, 2801-2802 (1990).

2” If the deliberate indifference standard is applied as we suggest, it

is unlikely that the more serious prison conditions cases (such as those

cited in p. 18 n.14, supra), would come out differently under such a

standard than under our preferred approach, which dispenses with an

inquiry into state of mind. Nevertheless, we believe it analytically

sounder in systemic challenges for the courts to look to the nature of

the conditions themselves, rather than to conduct a distracting and

often inconclusive inquiry into intent.

27

CONCLUSION

The judgment of the court of appeals should be vacated

and the case remanded.

Respectfully submitted.

-_~,

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

DAVID K. FLYNN

THOMAS E. CHANDLER

Altorneys

NOVEMBER 1990

vr US. GOVERNMENT PRINTING OFFICE 1990— 282-06 1/20206