Amicus Curiae Brief — Wilson v. Seiter

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INIEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

DENIAL OF A MOTION FOR SUMMARY

JUDGMENT ON AN EIGHTH AMENDMENT CLAIM

REQUIRES A MATERIAL DISPUTE OF FACT AS TO

OBDURACY AND WANTONNESS

A THE ELEMENTS OF AN EIGHTH

AMENDMENT CAUSE OF ACTION

SHOUL) NOT DEPEND ON THE

CHARACTERIZATION OF THE ALLEGED

VIOLATION

THE TEXT OF THE AMENDMENT, ITS

HISTORIC ORIGINS AND ITS

APPLICATION IN OTHER CONTEXTS

SUPPORTS A CONCLUSION THAT STATE

OF MIND IS A RELEVANT ELEMENT

FACTORS PERTINENT TO A

DETERMINATION OF AN _ EIGHTH

AMENDMENT VIOLATION MAY BE

RELEVANT TO BOTH INTENT AND

HARM

STATE OF MIND REQUIREMENTS

SHOULD NOT DEPEND ON THE RELIEF

SOUGHT

CONCLUSION

Cases

Abdul-Akbar v. Watson

901 F.2d 329 (3rd Cir. 1990)

Anderson v. Liberty Lobby, Inc.

477 US. 242, 250-252 (1986)

Atiyeh v. Capps

449 U.S. 1312, 1315-1316 (1981)

Bell v. Wolfish

441 U.S. 520, 554-555 (1979)

Berry v. City of Muskogee

900 F.2d 1489, 1494-1496 (10th Cir. 1990)

Birrell v. Brown

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

Browning-Ferris Industries of Vermont,

Inc. v. Kelco Disposal, Inc.

492 US. __; 109 S.Ct. 2909, 2915 (1989)

Celotex Corp. v. Catrett

477 US. 317, 323 (1986)

v. Saxner

474 US. 193, 211 (1985)

5, 6

3, 5

iii

TABLE OF AUTHORITIES, CONTD

Cody v. Hillard

830 F.2d 912 (8th Cir. 1987)

(en banc), cert denied

485 U.S. 906 (1988)

Cooper v. Pate

378 U.S. 546 (1964)

Edelman v. Jordan

415 US. 651 (1974)

Estelle v. Gamble

429 US. 97, 104 (1976)

Ex Parte Young

209 U.S. 123 (1908)

Ford v. Wainwright

477 US. 399, 405 (1985)

Gelabert v. Lynaugh

894 F.2d 746, 747 (Sth Cir. 1990)

Green v. Mansour

474 US. 64, 77 (1985)

Gregg v. Georgia

428 U.S. 153, 170 n. 17 (1976)

Haines v. Kerner

404 US. 519, 520-521 (1972)

Higley v. Michigan Department of Corrections

835 F.2d 623 (6th Cir. 1987)

16, 17

TABLE OF AUTHORITIES, CONTD

Holt v. Sarver

309 F.Supp. 362, 381 (E.D. Ark. 1970)

Hoptowit v. Ray

682 F.2d 1237, 1246-1247

(9th Cir. 1982)

Hutto v. Finney

437 U.S. 678, 681 (1978)

In Re McDonald

489 U.S. 180 (1989)

Ingraham v. Wright

430 U.S. 651, 664 (1977)

Inmates of Occuquan v. Berry

844 F.2d 828, 844 (D.C. Cir. 1988)

Inmates of Suffolk County Jail v. Eisenstadt

360 F.Supp. 676, 684 (D. Mass. 1973)

Jones v. North Carolina

Prisoners’ Labor Union

433 U.S. 119, 132 (1977)

LaFaut v. Smith

834 F.2d 389 (4th Cir. 1987)

Lopez v. Robinson

914 F.2d 486 (4th Cir. 1990)

Louisiana ex rel. Francis v. Resweber

320 USS. 459, 462 (1947)

TABLE OF AUTHORITIES, CONTD

Lujan v. National Wildlife Federation

497 US. __; 110 S.Ct. 3177, 3188-3189 (1990)

Matsushita Electric Industrial

Co. v. Zenith Radio Corp.

475 U.S. 574, 587 (1986)

Neitzke v. Williams

490 U.S.__; 109 S.Ct. 1827 (1989)

Pennhurst State School and

Hospital v. Halderman

465 U.S. 89, 103 (1984)

Penry v. Lynaugh

___ US. __; 109 S.Ct. 2934, 2953 (1989)

Powell v. Lennon

914 F.2d 1459 (11th Cir. 1990)

Procunier v. Martinez

416 U.S. 396, 404-405 (1974)

Pugh v. Locke

406 F.Supp. 318, 323-324 (M.D. Ala. 1976)

aff'd as modified, 559 F.2d 283 (Sth Cir. 1977)

rev'd in part, 438 U.S. 781 (1978)

4,17

| vii

vi TABLE OF AUTHORITIES, CONTD

TABLE OF AUTHORITIES, CONTD

Weems v. United States |

Ramos v, Lamm 217 US. 349, 368-369 (1910) 10

485 F.Supp. 122, 134 (D. Colo. 1979) |

aff'd inpart and vacated and Wellman v. Faulkner

remanded in part on other grounds 715 F.2d 269 (7th Cir. 1983) : 12

639 F.2d 559 (10th Cir.1980)

. 13 Whitley v. Albers

cert denied, 450 U.S. 1041 (1981) 475 US. 312 (1986) 2 14

Rhodes v. Chapman

Will v. Michigan Department of State Police

452 US. 337 (1981) 2, 4, 8, 12, 13, 14 __ US. __; 109 S.Ct 2311 (1989) 7

Robinson v. California .

320 US. 660 (1962) 11 Williams v. Edwards )

547 F.2d 1206, 1213 (Sth Cir. 1977) 19

Santiago v. Lane

. Youngberg v. Romeo

894 F.2d 218, 221 (7th Cir. 1990) 9 457 US. 307, 323 (1982) ° 19

Solem v. Helm

463 U.S. 277, 285, n 10 (1983) 10

Street v. J.C. Bradford & Co.

_ 886 F.2d 1472, 1476-1481 (6th Cir. 1989) 5, 6

Tillery v. Owens

907 F.2d 418 (3rd Cir. 1990) 17

Trop v. Dulles

356 U.S. 86, 101 (1958) 8

Tumer v. Safley .

482 U.S. 78, 84-85 (1987) 8

Walker v. Johnson

771 F.2d 920, 925 (6th Cir. 1985) 12

TABLE OF AUTHORITIES, CONT’D TABLE OF AUTHORITIES, CONT’D

Other Authorities Sonenshein, State of Mind and

Administrative Office of the United

States Courts, Annual Report of the

Director 181, Table C-2A (1989)

Eastman, The Triumph of the Prison: The

True Limits of Prison Reform Litigation

20 U. Tol. L. Rev. 69, 96-97 (1988)

Ekland-Olson, Crowding, Social Control

and Prison Violence: Evidence from the

Post-Ruiz Years in Texas, 20 Law & Soc’y

Rev. 389 (1986)

Engle and Rothman, The Paradox of Prison

Reform: Rehabilitation, Prisoner’s

Rights and Violence

7 Harvard J. L. and Pub. Pol’y.

413, 430-433 (1987)

Gursky, Who Are These People and Why

Are They Suing You?--A Look at the

ALCU’s National Prson- Project,

Corrections Today, June, 1989, at 16, 22

J. Thomas, Prisoner Litigation

(1988), pp 51-65, 120

Pillsbury, Under~anding Penal

Reforn: The Dynamic of Change

80 J. Crim. L. & Criminology

726, 772 (1989)

Credibility in the Summary Judgment

Context: A Better Approach

78 NW. U. L. Rev. 774, 794 (1983)

Survey: Prison Construction

Booms in U.S.-- Up 73 Percent

14 Corrections Compendium,

Sept Oct, 1989, at 10

Wefing, Cruel and Unusual Punishment

20 Seton Hall L. Rev. 478, 482 (1990)

What is Cruel and Unusual Punishment

24 Harv. L. Rev. 54, 56 (1910)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 89-7376

PEARLY L. WILSON,

Petitioner,

The State of Michigan and the states which have

joined this Amicus Curiae brief in support of Respondents

operate prison systems subject to 42 U.S.C. § 1983 actions

alleging unconstitutional conditions of confinement. Many

of these lawsuits are brought by inmates who proceed in

forma pauperis. Defense of this litigation, much of which

is meritless, absorbs considerable time and resources.

The present case involves important questions

regarding the scope of the Eighth Amendment in

conditions cases and the function of summary judgment as

a tool for their resolution. The decision below held that

Petitioner must demonstrate a material dispute concerning

official obduracy and wantonness in order to justify a full

trial. Affidavits or other evidence which merely placed the

seriousness of the conditions or the effectiveness of

remedial measures in controversy were found insufficient

in this regard.

In the view of Amici the Sixth Circuit panel correctly

resolved a historic anomaly in Eighth Amendment

jurisprudence. Previous cases which addressed conditions

claims, as opposed to individual allegations of harm

attributable to specific events, had tended to ignore the

state of mind element or simply collapsed it into an

evaluation of severity. This case properly refocuses the

inquiry on the dual elements of an Eighth Amendment

violation—the nature of the deprivation and the state of

mind of the causative agent.

Amici do not seek to operate inhumane correctional

facilities or to purposely subject any prisoner to conditions

which fall below minimal civilized standards of decency.

However, they also do not believe that Eighth Amendment

liability exists without fault. Where a plaintiff cannot carry

a minimal burden of establishing a material dispute as to

Official intent, the case should not proceed to trial.

Intrusive federal trials strain already limited state resources

and impose additional disruption on overburdened

correctional staffs. These costs are acceptable when

wanton and obdurate behavior has produced the

conditions at issue. They are not acceptable where the

responsible state officials and agencies have made good

faith efforts to maintain humane facilities.

SUMMARY OF ARGUMENT

The Court of Appeals correctly required Petitioner to

demonstrate a material factual dispute as to obduracy and

wantonness as a prerequisite to avoidance of summary

judgment in this case. This state of mind is an element of

a cause of action under the Eighth Amendment as

recognized by this Court’s decisions in Rhodes v. Chapman,

452 U.S. 337 (1981) and Whitley v. Albers, 475 U.S. 312

(1986). Where a defendant raises an issue in this regard

by way of motion for summary judgment, the burden

properly shifts to the plaintiff to adduce sufficient evidence

to require resolution by a trier of fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

Neither the complexity of the issue nor the nature of

the relief sought in a particular case should contro] the

elements of the underlying cause of action.The extent,

duration or severity of conditions may bear on the

question of whether a condition deprives inmates of basic

human needs. These factors may also suggest the

desirability of certain remedial measures. A request for

prospective relief may also impact on the applicability of

various immunity defenses. None of these considerations,

however, should foreclose timely judicial inquiry into each

element necessary for a determination of liability.

Nothing in the history of the Eighth Amendment

Suggests that it imposes liability without fault. Certainly,

the amendment forbids the intentional infliction of pain

without penological justification as evidenced by the

circumstances surrounding its adoption. In cases where

intent is not subject to dispute, focus on the nature of the

punishment itself is appropriate. Such instances, however,

do not suggest that courts may dispense with an inquiry

into intent when examining challenges to prison conditions

under the Eighth Amendment. ;

ARGUMENT

DENIAL OF A MOTION FOR SUMMARY

JUDGMENT ON AN EIGHTH AMENDMENT

CLAIM REQUIRES A MATERIAL DISPUTE

OF FACT AS TO OBDURACY AND

WANTONNESS.

By any gauge, prisoners as a group are “prolific

litigants." Cleavinger v. Samer, 474 U.S. 193, 211 (1985)

(Rehnquist, J., dissenting). Federal civil rights filings by

prisoners have steadily increased from approximately 6,600

in 1975 to nearly 26,000 in the year ending June 30, 1989.

Id.; Administrative Office of the United States Courts,

Annual Report of the Director 181, Table C-2A (1989).

Although some observers contend that the "explosion" in

prisoner litigation has slowed or leveled off in recent

years, it is apparent that inmates produce a

disproportionate amount of litigation. See J. Thomas,

Prisoner Litigation (1988), pp 51-65, 120. See also Higley

v. Michigan Department of Corrections, 835 F.2d 623 (6th

Cir. 1987).

Many prisoner lawsuits are undoubtedly a response to

unpleasant, or even harsh, circumstances or events.

Inmates may well dispute whether their conditions of

confinement meet professional correctional standards or

state law. These grounds, however, are not a basis for

federal constitutional intervention. Rhodes v. Chapman,

452 US. at 348 n. 13, Pennhurst State School and Hospital

v. Halderman, 465 U.S. 89, 103 (1984). The Eighth

Amendment simply does not promise a rose garden.

Attyeh v. Capps, 449 US. 1312, 1315-1316 (1981)

(Rehnquist, Circuit Justice).

Even prisoner advocates acknowledge that much of

this litigation is frivolous from a_ constitutional

perspective+/ Patently baseless or absurd claims are

subject to dismissal under 28 U.S.C. § 1915(d). Neitzke v.

Williams, 490 U.S.__; 109 S.Ct. 1827 (1989). Complaints

based on arguable legal theories may be dismissed under

Fed. R. Civ. P. 12(b)(6) where it is apparent that no set

of provable facts consistent with the allegations would

entitle the pleader to relief4/ Finally, courts possess only

limited authority to place restrictions on the few

recreational litigators who have demonstrably abused in

forma pauperis status. See Gelabert v. Lynaugh, 894 F.2d

746, 747 (Sth Cir. 1990) (citing In Re McDonald, 489 U.S.

180 (1989)); Abdul-Akbar v. Watson, 901 F.2d 329 (3rd

Cir. 1990) (reversed denial of in forma pauperis status to

prisoner who had filed forty § 1983 claims in seven years).

In this context, the role of summary judgment

pursuant to Fed. R. Civ. P. 56 assumes critical importance.

The "New Era" of summary judgment recently launched

by this Court requires that plaintiffs affirmatively present

"evidence on which the jury could reasonably find for the

plaintiff’ to defeat amotion which challenges the factual

basis of their claims. Anderson v. Liberty Lobby, Inc., 477

US. 242, 250-252 (1986); Matsushita Electric Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this regard,

the moving party may not rest on the general or

1. Gursky, Who Are These People and Why Are They Suing You?-

-A Look at the ALCU’s National Prison Project, Corrections Today,

June, 1989, at 16, 22.

2. Notice pleading, liberal construction of pro se complaints,

Haines v. Kerner, 404 U.S. 519, 520-521 (1972), and generous

allowance of amendments pursuanj to Fed. R. Civ. P. 15 may affect

the efficacy of these procedures.

3. A thorough analysis of the change in summary judgment

practice is found in Street v. J.C. Bradford & Co., 886 F.2d 1472,

1476-1481 (6th Cir. 1989).

conclusory allegations of the pleadings. Lujan v. National

Wildlife Federation, 497 US. __; 110 S.Ct. 3177,

3188-3189 (1990). Of particular importance to the present

case is the notion that courts may appropriately resolve

state of mind issues on summary judgment. Street, 886

F.2d at 1479; Anderson, 477 U.S. at 256-257.

The propriety of disposition by summary judgment in

a given conditions of confinement case necessarily depends

on the factual record before the court. Where, as Amici

argue herein, intent is an element of the cause of action,

plaintiff must adduce sufficient relevant evidence to create

an actual, as opposed to theoretical, dispute. In this

regard, Amici recognize that the function of summary

judgment is to identify factual issues and not to resolve

them. However, in an evaluation of defendant’s

entitlement to summary judgment, there is no sound basis

for a distinction between state of mind and conduct*/

4. “[Cjourts, applying the summary judgment rule to state of

mind issues in the same way that they would apply the rule to any

factual matter, have decided quite correctly that when no factual

dispute exists, summary judgment is appropriate." Sonenshein, State

of Mind and Credibility in the Summary Judgment Context: A Better

Approach, 78 NW. U. L. Rev. 774, 794 (1983).

A. THE ELEMENTS OF AN EIGHTH

AMENDMENT CAUSE OF ACTION

SHOULD NOT DEPEND ON THE

CHARACTERIZATION OF THE

ALLEGED VIOLATION.

Modern prisons present complex and intractable

problems. Procunier v. Martinez, 416 U.S. 396, 404-405

(1974). Problems require solutions. Officials responsible

for the operation of correctional facilities consequently

make numerous decisions on a regular basis which,

individually or collectively, affect the lives of both

prisoners and employees. Some choices take the form of

dramatic action in the face of explosive confrontations.

Others deal with the most mundane aspects of everyday

existence. All involve some degree of expertise and

reflection. Competing priorities, time pressures and

resource availability frequently complicate the decisional

process.

The results of these decisions have been the subject

of judicial scrutiny since this Court’s decision in Cooper v.

Pate, 378 U.S. 546 (1964). It is doubtful that many prison

Officials today act without some awareness of possible

court intervention or review. If anything, it is more likely

that many correctional decisions anticipate such review

and seek to avoid it through conformity with the guidance

offered by applicable case law.

As with most litigation, review of official discretion in

the context of corrections is typically retrospective. This

evaluation may occur years after the fact in a wholly

different societal and legal environment. Only the most

prescient administrator can accurately predict both the

results of a particular decision and the precise legal

standard by which a court might judge it.

This Court has long recognized the difficulties

inherent in correctional decision making and the

limitations of hindsight judicial intervention. Bell v.

Wolfish, 441 U.S. 520, 554-555 (1979) (citing Jones v.

North Carolina Prisoners’ Labor Union, 433 U.S. 119, 132

(1977)). The principles of judicial restraint, separation of

powers and, in the case of state prisons, federalism all

counse] deference to executive discretion in this regard.

As stated in Tuner v. Safley, 482 U.S. 78, 84-85 (1987):

"Running a prison is an inordinately difficult

undertaking that requires expertise, planning, and

the commitment of resources, all of which are

peculiarly within the province of the legislative

and executive branches of government. Prison

administration is, moreover, a task that has been

committed to the responsibility of those branches,

and separation of powers concerns counsel a

policy of judicial restraint. Where a state penal

system is involved, federal courts have

additional reason to accord deference to the

appropmiate prison authorities."

The present case invoives allegations of substandard

environmental conditions incident to confinement which

Petitioner contends inflict “unnecessary and wanton"

(Rhodes, 452 U.S. at 346) pain in violation of the Eighth

Amendment. There is no claim that the state or its

agents deliberately created the disputed conditions as

punishment. And, as the Sixth Circuit found, Petitioner

failed to counter Respondents’ evidence of efforts to

provide minimally decent confinement conditions. J. A.

72-73.

The position of Amici is that this litigation and similar

so-called "conditions" cases are fundamentally the same as

any other Eighth Amendment cause of action. There

must be some departure from the "evolving standards of

decency that mark the progress of a maturing society’,

Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion);

Penry v. Lynaugh, ___ US. __; 109 S.Ct. 2934, 2953

(1989); which inflicts pain (harm), Hutto v. Finney, 437

U.S. 678 (1978) (denial of basic human needs). This

deviation must be shown to have resulted from a culpable

state of mind. For example, compare Santiago v. Lane,

894 F.2d 218, 221 (7th Cir. 1990) (equating deliberate

indifference with criminal recklessness) and Berry v. City of

Muskogee, 900 F.2d 1489, 1494-1496 (10th Cir. 1990)

(gross negligence insufficient for Eighth Amendment

claim)’ To hold otherwise effectively imposes strict

liability without fault.

Amici recognize that analysis of causation and intent

issues presents difficulties in "conditions" cases. When

medical personnel ignore unmistakable signs of a serious

illness or where a guard beats an inmate, resolution of

these questions ordinarily will pose no difficulty. But if

the claim is that prisoners are at risk due to an

unresponsive health care system or poorly trained guards,

the answers are likely to be less obvious. The complexity

of the inquiry, however, is no reason to dispense with the

requirement. Courts are particularly suited to untangling

intricate liability questions. And, given the deferential

considerations previously mentioned, the states have a

strong interest in a definitive liability determination prior

to imposition of intrusive remedial measures.

5. Respondents’ Brief sets forth the appropriate standard in this

case.

B. THE TEXT OF THE AMENDMENT,

ITS HISTORIC ORIGINS AND ITS

APPLICATION IN OTHER

CONTEXTS SUPPORTS A

CONCLUSION THAT STATE OF

MIND IS A RELEVANT ELEMENT.

The United States argues that the intent of the

Framers of the Bill of Rights and this Court’s sentencing

jurisprudence supports a conclusion that not all Eighth

Amendment violations include a state of mind element.

Brief for United States as Amicus Curiae, pp. 14-18.

From this premise it is reasoned that conditions alone, at

least the severe and pervasive variety, can constitute cruel

and unusual punishment.

The origin of the Eighth Amendment has been

discussed in a number of cases. The provision was "based

directly on Art I, § 9, of the Virginia Declaration of

Rights," which "adopted verbatim the language of the

English Bill of Rights." Solem v. Helm, 463 U.S. 277, 285,

n 10 (1983). The English version was intended to curb

the excesses of English judges under the reign of James

Il. Ingraham v. Wright, 430 U.S. 651, 664 (1977). It

received very little debate in Congress. Weems v. United

States, 217 U.S. 349, 368-369 (1910). Ratification debates

Suggest that the primary concern of the draftsman

involved proscriptions of "tortures" and other "barbarous"

methods of punishment. Gregg v. Georgia, 428 U.S. 153,

170 n. 17 (1976).£/

6. At the beginning of this century, whether whipping was

constitutional was subject to debate. Note, Whar is Cruel and Unusual

Punishment, 24 Harv. L. Rev. 54, 56 (1910).

Review of the history has led this Court to conclude

that the amendment "... embraces, at a minimum, those

modes or acts of punishment that had been considered

cruel and unusual at the time that the Bill of Rights was

adcpted." Ford v. Wainwright, 477 U.S. 399, 405 (1986).

The Court has further found a clear intent on the part 7f

the Framers to place limits on the powers of the new

government with a primary focus on the potential for

abuse of its prosecutorial power. Browning-Ferris

Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 US.

__; 109 S.Ct. 2909, 2915 (1989). Aside from these

general observations, however, it is difficult to discern the

actual intent of the Framers. See Wefing, Cruel and

Unusual Punishment, 20 Seton Hall L. Rev. 478, 482

(1990).

Sentencing cases provide little additional guidance. In

such instances, there is no question that the state intends

to impose the particular penalty at issue. Deliberative

action by a legislative body defines an offense and

proscribes the mode or extent of punishment. The

prosecutor, as executive, exercises discretion to invoke the

statute against a specific person. And, finally, the judicial

process imposes the penalty after formal deliberation in

accordance with due process of law. There is simply no

issue as to intent in such circumstances.

The absence of an issue does not necessarily suggest

the absence of an element. Intent may not be an issue

on review of the legislative prerogative related to

7. The cases cited by the United States at 18-19 of their brief

support this conclusion. In Louisiana ex rel Francis v. Resweber, 329

U.S. 459, 462 (1947), there was simply no claim that the officials

were doing anything other than trying to carry out a lawfully imposed

death sentence. Robinson v. California, 320 U.S. 660 (1942), involved

a legislative enactment which criminalized addictive sta.us.

imposition of a particular penalty. This, however, does

not foreclose intent as an element of a cause of action

where volitional conduct is alleged to have violated the

Eighth Amendment.

C. FACTORS PERTINENT TO A

DETERMINATION OF AN EIGHTH

AMENDMENT VIOLATION MAY BE

RELEVANT TO BOTH INTENT AND

HARM.

The parties in this case dispute whether the

conditions at issue "deprive inmates of the minimal

civilized measure of life’s necessities." Rhodes, 452 U.S. at

347. Some of the types of deprivations alleged by

Petitioner are within the range of conditions (sanitation,

food, shelter) that have been subjected to Eighth

Amendment scrutiny by some circuits. ity,

however, is not equivalence. The duration, extent and

severity of any given condition must be considered in

determining whether the condition denies basic human

needs.

The well known conditions of confinement cases

commenced in the wake of Cooper v. Pate involved older

facilities with many serious structural and administrative

problems. In early landmark litigation, the prisons at

8. The Sixth Circuit below analyzed each discrete condition

separately in context in accord with the test adopted in Walker v.

Johnson, 771 F.2d 920, 925 (6th Cir. 1985). Other jurisdictions

employ somewhat different formulations in conditions cases.

Compare Hoptowit v. Ray, 682 F.2d 1237, 1246-1247 (9th Cir. 1982)

(focus on specific condition) with Wellman v. Faulkner, 715 F.2d 269

(7th Cir. 1983 of conditions"). See also:

{> “ye "). See also: Annot., 85 ALR.

issue were described as "a dark and evil world completely

alien to the free world." Holt v. Sarver, 309 F.Supp. 362,

381 (E.D. Ark. 1970) (Holt Il) quoted in Hutto v. Finney,

437 U.S. 678, 681 (1978)2/ Such extremely deplorable

conditions were not atypical. Pugh v. Locke, 406 F.Supp.

318, 323-324 (M.D. Ala. 1976) aff'd as modified, 559 F.2d

283 (Sth Cir. 1977), rev’d in part, 438 U.S. 781 (1978)

(facilities wholly unfit for human habitation); Ramos v.

Lamm, 485 F.Supp. 122, 134 (D. Colo. 1979), aff'd in part

and vacated and remanded in part on other grounds, 639

F.2d 559 (10th Cir.1980), cert denied, 450 U.S. 1041 (1981)

(same). -

Where conditions reached the level of "soul chilling

inhumanity", Inmates of Suffolk County Jail v. Eisenstadt,

360 F.Supp. 676, 684 (D. Mass. 1973) quoted in Rhodes,

452 US. at 354 (Brennan, dissenting), there was simply no

issue of intent. The failure to raise an issue of intent in

such extreme cases, however, does not mean that intent

can never be an issue in any conditions case.

The United States argues that state of mind is simply

"irrelevant" whenever general continuing conditions of

confinement are adequately alleged. In short, once the

condition is established to fall below minimum standards,

liability follows. This argument rests on several

questionable premises.

9. Not surprisingly, the defendants in Hutto did not dispute

liability. Rhodes, 452 U.S. at 345 n. 11. Concessions of liability or

token defenses were not uncommon as corrections officials, according

to commentators, utilized the courts as alternative funding

mechanisms. See Eastman, The Triumph of the Prison: The True

Limits of Prison Reform Litigation, 20 U. Tol L. Rev. 69, 96-97

(1988). The trial in Pugh concluded with an open court admission

by defendant’s lead counsel that the evidence, which was largely

stipulated, “conclusively established aggravated and existing

violations of plaintiffs Eighth Amendment rights." 406 F. Supp. at

322.

This Court’s cases which discuss Eighth Amendment

standards in a prison context do not distinguish conditions

cases from other types of actions with respect to state of

mind requirements. Rhodes refers to “wanton and

unnecessary infliction of pain", 452 U.S. at 347. Estelle v.

Gamble, 429 US. 97, 104 (1976), spoke in terms of

"deliberate indifference". Finally, Whitley v. Albers, 475

U.S. 312, 319 (1986), unequivocally stated that:

"It is obduracy and wantonness, not inadvertence

or error in good faith, that characterize the

conduct prohibited by the Cruel and Unusual

Punishments Clause, whether that conduct occurs

in connection with establishing conditions of

confinement, supplying medical needs, or

restoring Official control over a tumultuous

cellblock." [Emphasis added].

A contrast between general conditions which affect a

group of prisoners and specific circumstances directed at

individual inmates is a distinction without a difference.

An environmental condition such as cold temperatures

may affect a single cell, a cell \block or an entire

institution. For purposes of constitutional analysis, the

number of individuals subject to the alleged violation

should not determine the applicable standard.

The extent of an alleged violation also does not alter

its basic character. A single inmate may receive

substandard treatment from one member of a medical

care staff. The incident might be merely an isolated event

attributable to individual deficiencies or it might be an

example of systemic problems such as staff shortages, or

possibly a blend of both. In any event, the fundamental

nature of the viol .n remains the same.

The facts of La.aut v. Smith, 834 F.2d 389 (4th Cir.

1987), illustrates the conceptual difficulty of distinguishing

systemic problems from individual denials. In LaFaut, a

wheelchair bound paraplegic claimed that officials denied

him adequate toilet facilities and necessary physical

therapy. Such treatment may have been directed at

LaFaut personally by those directly resporsible for his

care. On another level, however, the allegations might

reflect a general official indifference to the plight of

handicapped prisoners. The Fourth Circuit Court of

Appeals recognized that the treatment received by LaFaut

could be characterized as " ... inhumane conditions of

confinement, failure to attend to his medical needs, or a

combination of both. ..." 834 F.2d at 391-3924

The attempt to confine intent as an element to

transitory or isolated incidents is also unsound. Such an

approach relies on labeling as a substitute for analysis.

Duration may have some relevance to the determination

of whether a condition deprives inmates of basic human

needs. However, the mere fact that a condition may

persist over time is not dispositive of state of mind.

Lopez v. Robinson, 914 F.2d 486 (4th Cir. 1990),

represents an example of these considerations. In Lopez,

lightning struck electrical lines which supplied power to

prison water pumps. Water levels fell below amounts

necessary for fire suppression. As a result, the warden

shut off water supplies to the cells for a 24-hour period.

These circumstances clearly required the exercise of

judgment to balance basic sanitation and safety concerns.

The court assumed that the shut-off implicated rights to

basic human needs, but found no vjolation in the absence

of culpable conduct as a causative factor. Ignoring the

state of mind shown by the warden’s good faith efforts to

address the problem and focusing solely on the duration

10. The court chose to apply the “deliberate indifference"

definition from Estelle rather than the heightened “malicious and

sadistic” definition adopted by Whitley.

of the deprivation of water is contrary to the historical

focus of the Eighth Amendment.

As the Lopez example suggests, prisons are dynamic

rather than static institutions which are subject to a variety

of influences. Serious conditions may "continue" as the

result of intentional choices, benign. neglect, errors in

judgment or malicious intent. Efforts to address

nonepisodic conditions may prove ineffectual for a variety

of reasons. An application of a state of mind requirement

in such circumstances may mean that there is no federal

court redress under the Eighth Amendment. However,

such result is fundamentally no different from the denial

of relief for an actual injury as occurred in Whitley.

D. STATE OF MIND REQUIREMENTS

SHOULD NOT DEPEND ON THE

RELIEF SOUGHT.

Petitioner and supporting Amici claim that a state of

mind requirement for continuing Eighth Amendment

violations would frustrate the exception to the Eleventh

Amendment immunity permitting official capacity sujts for

prospective injunctive relief. Ex Parte Young, US.

123 (1908); Edelman v. Jordan, 415 US. 651 (1974).

The apparent premise of this argument is that

"systemic deprivations" usually develop slowly over time

and result from a web of policy choices primarily related

to resource allocation. See Brief of United States, at 13,

18-19. It further assumes that the conduct of officials

currently responsible for the operation of the penal facility

at issue did not necessarily produce the deficient condition

and their state of mind, therefore, is irrelevant.

The simplistic nature of this argument tends to gloss

over some important concepts. The only reason that

plaintiffs can maintain official capacity actions for

hel

injunctive relief is due to the Ex Parte Young fiction which

effectively permits suits against the state. despite the

stricture of the Eleventh Amendment. Michigan

Department of State Police, _ US. ___; 109 S.Ct. 2304,

2311 (1989). The prospective relief, however, remedies

continuing violations not past wrongs. Edelman v. Jordan,

415 US. 651 (1974); Pennhurst, 465 US. ct 103. As

summarized by Justice Brennan’s dissent ir Green v.

Mansour, 474 U.S. 64, 77 (1985):

"If relief is sought against continuing violations,

the Court finds that the Supremacy Clause

outweighs the Eleventh Amendment; but if relief

is requested against pas‘ violations, the Court

determines that the Eleventh Amendment

outweighs the Supremacy Clause."

Thus, whatever the historical origins of the conditions at

issue, the relevant official conduct in an Eighth

Amendment injunctive case is that which continues to

subject the prisoners to the alleged deprivation.

The United States recognizes that past behavior, in

any event, may have been merely negligent or even simply

poor judgment. One could even trace the origins of some

conditions to very remote, arguably neutral factors4// The

current explosion of prison populations, see Tillery v.

Owens, 907 F.2d 418 (3rd Cir. 1990), is perhaps

attributable partly to the movement to determinative

sentences, stricter enforcement of various crimes or simply

11. Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990), illustrates

the limited relevance of past causative factors in an injunctive case.

The court in Powell reversed a dismissal of a § 1983 action which

claimed that defendants had forced the plaintiff to live in a dormitory

contaminated with friable asbestos. The court found that the

complaint stated a claim even if the initial conduct in ordering

inadequate asbestos removal was merely negligent. Though not

discussed by the Court, the obvious original cause for the condition

was the initial decision to install asbestos.

+ Tie

ae = tt The search for an

ultimate cause is not the proper focus of an Eighth

Amendment action in which present conduct is at issue.

The immediate or proximate cause of the alleged

violation was the crucial factor in Cody v. Hillard, 830 F.2d

912 (8th Cir. 1987) (en banc), cert denied, 485 U.S. 906

(1988). There the court reversed a panel decision which

had upheld injunctive relief based on a finding that double

celling was unconstitutional. The court's

emphasized that the plaintiffs had failed to demonstrate a

causal connection between the use of double celling and

the alleged harmful conditions. Though not dispositive,

Cody also stressed that administrators had taken "sincere

efforts” to maintain a healthful environment.

As in Cody, the perceived need to correct undesirable

conditions cannot be allowed to dispense with the iegal

ee of constitutional liability. Prison

relorm 18 an executive and legislative responsibility

whereas the function of a court is to determine whether

a constitutional violation has occurred. Hoptowit v. Ray,

682 F.2d 1237, 1246 (1982). However noble the goal,

courts should refrain from intervention unless all the

elements of proof are present4”/ Judges, as the court in

12. Overcrowding has been part of American penology since

the nation turned to incarceration as its primary criminal penalty

according tO one commentator. Pillsbury, Penal

Reform: The Dynamic of Change, 80 J. Crim. L. &

772 (1989). Recent expenditure indicates that States have

affirmatively to current population pressures. See Survey: Prison

Construction Booms in U.S.- Up 73 Percent, 14 Corrections

Compendium, Sept Oct, 1989, at 10.

13. As some commentators suggest, federal court remedies do

not always produce positive results. See Engle

Paradox of Prison Reform: Rehabilitation, Prisoner's Rights and

1 4

a |

bs}

{

Inmates of Occuquan v. Berry, 844 F.2d 828, 844 (D.C. Cir.

1988), cautioned, should:

" ... not be quick to presume that the two other

branches will cavalierly succumb to engaging in

what the lower courts have been, at times, rather

quick to condemn as systemic constitutional

violations." [Emphasis in original].

A state of mind requirement, despite implicit

arguments to the contrary, would not necessarily allow

administrators to escape liability simply by asserting a lack

of resources. There is some authority for the proposition

that budgetary constraints may entitle individual

defendants to qualified immunity in Eighth Amendment

damage actions. See Birrell v. Brown, 867 F.2d 956 (6th

Cir. 1989), citing Youngberg v. Romeo, 457 U.S. 307, 323

(1982). Birrell, however, noted that lack of funds does not

excuse constitutional violations or bar prospective

remedies. Jd. at 959 (citing Williams v. Edwards, 547 F.2d

1206, 1213 (Sth Cir. 1977) (lack of funds or authority over

funds does not justify operation of a prison in an

unconstitutional manner)). The existence vel non of this

defense is separate from whether obduracy and

wantonness is an element of a cause of action. The latter

is concerned with the conduct and behavior of the

responsible officials in addressing the conditions at hand

and, as noted, not with the precedent initial cause.

For the above reasons, Amici contend that the

element of intent should not depend on the nature of the

relief sought. If officials have addressed current

conditions in good faith, federal courts should not

intervene with intrusive remedies. To do so effectively

substitutes judicial judgment as to the most efficacious

manner of proceeding with prison management.

from the Post-Ruiz Years in Texas, 20 Law & Soc’y Rev. 389 (1986).

affirmed.

CONCLUSION

The judgment of the Court of Appeals should be

Respectfully submitted,

FRANK J. KELLEY

Attorney General of Michigan

GAY SECOR HARDY

Solicitor General

Counsel of Record

THOMAS C. NELSON

Assistant Attorney General

525 West Ottawa Street

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

Hon. Douglas B. Baily

Attorney General of Alaska

Hon. Ron Fields

Attorney General of Arkansas

Hon. John K. Van De Kamp

Attorney General of California

Hon. Clarine Nardi Riddle

Attorney General of Connecticut

Hon. Charles M. Oberly, III

Attorney General of Delaware

Hon. Warren Price, [I

Attorney General of Hawaii

2 er me li tl tl aS Rap AN

a ee eee

;

Hon. James T. Jones

Attorney General of Idaho

Hon. Neil F. Hartigan

Attorney General of Illinois

Hon. Robert T. Stephen

Attorney General of Kansas

Hon. Frederic J. Cowan

Attorney General of Kentucky

Hon. William L. Webster

Attorney General of Missouri

Hon. Robert J. Del Tufo

Attorney Generl of New Jersey

Hon. Dave Frohnmayer

Attorney General of Oregon

Hon. Ernest D. Preate, Jr.

Attorney General of Pennsylvania

Hon. T. Travis Medlock

Attorney General of South Carolina

Hon. Charles W. Burson

Attorney General of Tennessee

Hon. Mary Sue Terry

Attorney General of Virginia

Hon. Hector Rivera-Cruz

Attorney General of Puerto Rico

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.