# Amicus Curiae Brief — Wilson v. Seiter

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0490%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 294

## Text

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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

B.

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

10

16

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

19

11

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)

18

16, 17

14

16

11

17

10

iv

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)

13

10

19

13

14

15

11

v

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

13

| 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

ix
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)

13

18

18

18

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)

18

1]

10

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.

2

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

8

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.

10

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).

11

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.

12

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.

13

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.

14

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

15

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.

16

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

17

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

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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

:
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21

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0490%3A08. Public record. Not legal advice.