Amicus Curiae Brief — Brutsche v. Cleveland-Perdue

In the Supreme Court of the Hnite

OCTOBER TERM, 1990

ROBERT L. BRUTSCHE, PETITIONER

Vv.

LINDA CLEVELAND-PERDUE, ETC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

CLIFFORD M. SLOAN

Assistant to the Solicitor General

WENDY M. KEaTs

Attorney

Department of Justice

Washington, D.C. 205380

(202) 514-2217

SS nn eee - = —— tt

BEST AVAILABLE COPY

QUESTIONS PRESENTED

This is a Bivens action against a supervisory offi-

cial in the federal Bureau of Prisons seeking dam-

ages for the death of respondent’s decedent. The

questions presented are:

1. Whether, in a case in which there is no con-

trolling precedent from this Court or in the relevant

circuit, a consensus in the case law decided by other

circuits may constitute “clearly established” law for

purposes of determining whether a public official is

entitled to qualified immunity.

2. Whether it was “clearly established” in 1975

that the challenged actions of petitioner with respect

to the provision of medical care at the Terre Haute

prison were unconstitutional.

(1)

| TABLE OF CONTENTS

Page

Neen nn cesneeneseatencrosens 2

i ciesssttiemenceretecoeoves 7

a ccnhubtnracececceoocees 18

TABLE OF AUTHORITIES

Cases:

Anderson V. Creighton, 483 U.S. 635 (1987) ....5, 9, 16, 17

Bishop v. Stoneman, 508 F.2d 1224 (2d Cir.

Tee ccasccsinanweoves pore, ey |

Bivens v. Six Unknown Named Agents, 403 U.S.

| EEE 4

Butz v. Economou, 438 U.S. 478 (1978) ........0.0.-.... 8

Carlson Vv. Green, 446 U.S. 14 (1980) ....00 1,5

Davis y. Scherer, 468 U.S. 183 (1984) 0-0. 9

Estelle v. Gamble, 429 U.S. 97 (1976) _.......0000000. 5

Finney V. Arkansas Bd. of Correction, 505 F.2d

I 7, 18, 16

Gates Vv. Collier, 501 F.2d 1291 (5th Cir. 1974)... 16,17

Harlow Vv. Fitzgerald, 457 U.S. 800 (1982) _........... 5, 8

| Katz v. United States, 389 U.S. 347 (1967) _........ 10

| Malley v. Briggs, 475 U.S. 335 (1986) —..........-.... 8

Mitchell v. Forsyth, 472 U.S. 511 (1985) —............ 9

Newman vy. Alabama, 503 F.2d 1320 (5th Cir.

1974), cert. denied, 421 U.S. 948 (1975)... _.6-7, 13, 14

Pierson V. Ray, 386 U.S. 547 (1967) _................... 8)

| Procunier Vv. Navarette, 434 U.S. 555 (1978)... 8,9

| Thomas V. Pate, 493 F.2d 151 (7th Cir.), vacated,

419 U.S. 813, cert. denied, 419 U.S. 879 (1974) .. 5

Wood v. Strickland, 420 U.S. 308 (1975) .............. 9

Zweibon V. Mitchell:

606 F.2d 1172 (D.C. Cir. 1979), cert. denied,

ee 12

720 F.2d 162 (D.C. Cir. 1983), cert. denied,

I se csnenenrvenencnnne 11, 12

Constitution and statute: ;

| i WEES. sansecnnonesessccocsocces 5, 7

42 U.S.C. 1983 ........ NG ree 8,15

’

(111)

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1167

ROBERT L. BRUTSCHE, PETITIONER

Vv.

LINDA CLEVELAND-PERDUE, ETC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States in this case.’

1 All of the defendants in this case, including petitioner,

were represented by Department of Justice counsel from the

outset of the case through the determination of the threshold

question of the availability of a Bivens remedy in Carlson Vv.

Green, 446 U.S. 14 (1980). On this Court’s remand for fur-

ther proceedings in Carlson Vv. Green, supra, it was decided

that the Department should no longer represent all of the

defendants because of potential conflicts among the defend-

ants. Accordingly, the Department approved a request to

retain separate counsel for the defendants. Norman Carlson

Ed

(1)

2

STATEMENT

1. Petitioner was the Medical Director of the fed-

eral Bureau of Prisons (BOP) from 1969 through

1975, the year that the events giving rise to this law-

suit occurred. His duties included planning, direct-

ing, and controlling the comprehensive health care

program of the BOP, which encompassed some 20,000

inmates at more than 30 institutions, including the

penitentiary at Terre Haute, Indiana. Petitioner did

not have responsibility for the daily administration

of medical care to inmates; that duty was assigned

to the chief physician and hospital administrator at

each prison, both of whom worked directly under the

warden. The chief physician was responsible for pro-

fessional medical care, while the hospital administra-

tor was responsible for the management of hospital

administrative functions. Pet. App. B2.

2. During 1975, four deaths occurred among in-

mates receiving medical care at the Terre Haute

penitentiary. Petitioner conducted an investigation

of the circumstances of each death, made recommen-

dations regarding certain corrective action, and hired

a new full-time staff physician, Dr. Benjamin De-

Gracias, for the facility. The fourth inmate death

was that of respondent’s decedent, Joseph Jones, Jr.,

on August 14, 1975. His death led to this lawsuit.

Pet. App. B2-B11.*

and Dr. Robert Brutsche are represented by one set of pri-

vate counsel. Dr. Benjamin DeGracias is represented by an-

other set of private counsel. Tie Department is paying for

the private representation of petitioner and the other de-

fendants.

2The circumstances concerning the three prior inmate

deaths are detailed in the district court’s opinion. Pet. App.

B2-B8. At the time of the first inmate death, the prison

3

Jones had a long history of asthma for which he

had received medication and treatment within the

federal prison system since his incarceration in 1973.

On his request, he had been transferred to Terre

Haute in July 1973 to be closer to his family. He

had sought care for his asthma at the prison hospital

on several occasions, and continued to take his medi-

cations. Jones had a severe asthma attack on July

28, 1975. He was admitted to the prison hospital,

where he was treated for the next 36 hours, then

transferred to the local hospital where he stayed

another seven days and his condition improved. On

the recommendation of a local hospital physician that

Jones be sent to a more favorable climate, the prison

hospital administrator prepared a transfer recom-

mendation for a prison facility in Texas, with the

apparent assumption that the transfer would occur

directly from the local hospital. Jones was returned

to the Terre Haute facility, however, before the

transfer took place. Pet. App. B8-B9.

hospital used one full-time physician (Dr. Silverman) and

five local physicians on a rotating basis. (Ordinarily, there

would be two full-time physicians on staff at the prison, but

the expiration of the military draft, low salaries, and the

unappealing nature of the work made it difficult to find a

second full-time physician. Instead, the five local physicians

were used to fill the second physician “slot.”) As a result of

his investigation of the first inmate’s death, petitioner recom-

mended that Dr. Silverman be dismissed. The warden agreed,

and permitted Dr. Silverman to resign. The rotating physi-

cians stepped up their responsibilities until] another full-time

physician could be hired; two more inmates died during this

period. In August 1975, petitioner hired Dr. DeGracias to

replace Dr. Silverman. Dr. DeGracias was hired from the

Civil Service Register, without a personal interview, but

after petitioner had checked all of his references. Dr.

DeGracias reported for work on August 3, 1975. Pet. App.

B2-B8.

4

Jones was discharged from the prison hospital and

released to “full duty.”’ Four days later, he experi-

enced wheezing in both lungs and was seen as an out-

patient in the prison hospital by Dr. DeGracias. On

August 14, he was admitted to the prison hospital for

a severe asthma attack. Dr. DeGracias prescribed

treatment over the telephone several times in the

course of the day and evening, but did not see Jones

personally, and he rejected a recommendation to send

Jones to the local hospital. When Jones became rest-

less at about 10 p.m., Dr. DeGracias prescribed Thor-

azine, a tranquilizer, by telephone. The drug was ad-

ministered, and at about 11 p.m. Jones went into

respiratory arrest. Dr. DeGracias came to the prison

hospital and ordered Jones taken to the local hospital,

where he was pronounced dead at 11:40 p.m. Pet.

App. B9-B10.

Petitioner visited Terre Haute to investigate

Jones’s death. He rechecked Dr. DeGracias’s refer-

ences and discussed the situation with the director of

the Bureau of Prisons. He subsequently issued fur-

ther recommendations to the warden regarding the

maintenance of full inpatient medical records, more

liberal use of outside facilities, better staff communi-

cation, review of all “problem” cases, and a policy of

physician availability during off-duty hours. Pet.

App. B10-B11.

3. The representative/administratrix of Jones’s

estate brought this Bivens* action for damages

against, among others, Norman Carlson, the director

of the Bureau of Prisons, Dr. DeGracias, and _peti-

tioner. (Respondent is the successor representative

administratrix). The complaint alleged that Jones’s

3 See Bivens v. Sir Unknown Named Agents, 403 U.S. 388

(1971).

—

5

death was caused by the defendants’ deliberate in-

difference to his medical needs, in violation of the

Eighth Amendment. See Estelle v. Gamble, 429 U.S.

97 (1976). After this Court held in Carlson vy.

Green, supra, that a Bivens remedy is available for

such a claim and survived Jones’s death, the defend-

ants moved for summary judgment on qualified im-

munity grounds. Pet. App. C2-C3.

The district court initially denied the motion as to

all three defendants, on the ground that the ‘‘delib-

erate indifference” standard for stating a violation of

the Eighth Amendment was “clearly established”’

within the meaning of Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Pet. App. D1-D12. The court

of appeals vacated the district court’s judgment and

remanded with directions to apply the Harlow stand-

ard specifically to the undisputed facts in the record,

as required by Anderson vy. Creighton, 483 U.S. 635

(1987). Pet. App. C1-C13. On remand, the district

court granted the motion as to defendant Carlson,

but denied the motion as to petitioner and Dr. De-

Gracias. The court ruled that the law regarding the

medical needs of prisoners was ‘clearly established”’

by Thomas v. Pate, 493 F.2d 151, 157-159 (7th Cir.),

vacated on other grounds, 419 U.S. 813, cert. denied,

419 U.S. 879 (1974) (cross-petition), and that only

defendant Carlson was entitled to qualified immunity

on the basis of the undisputed facts in the record.

Pet. App. B1-B23.

4. Petitioner appealed,’ and the court of appeals

affirmed. Pet. App. Al-A9. The court noted that

Thomas vy. Pate, supra, did not invoNe allegations of

“systemic deficiencies” in prison medical care and

thus did not clearly establish the law for a super-

* Dr. DeGracias did not take an interlocutory appeal!

6

visory official in petiticner’s position. Pet. App. A6-

Aj. The court also determined that at the time of

the events in suit, there was no “controlling prece-

dent” on this point in the decisions of this Court or

of the Seventh Circuit. With respect to its own prec-

edents, the court of appeals noted that there was “no

decision by this court recognizing that a failure to

remedy systemic deficiencies in health care services

at a prison violated the eighth amendment prior to

1983.” Id. at AT. Under these circumstances, the

court held that the following standard should be ap-

plied (ibid.):

In the absence of a controlling precedent we look

to all relevant case law in an effort to determine

whether at the time of the alleged acts a suffi-

cient consensus had been reached indicating that

the official’s conduct was unlawful. To state the

proposition in another way, we seek to determine

whether there was such a clear trend in the case

law that we can say with fair assurance that the

recognition of the right by a controlling prece-

dent was merely a question of time. This ap-

proach makes eminent sense for it precludes an

official from escaping liability for unlawful con-

duct due to the fortuity that a court in a par-

ticular jurisdiction had not yet had the oppor-

tunity to address the issue.

The court then applied that approach in this case.

“After reviewing the relevant case law,” the court

found that by 1975 there was “a clear consensus” in

the decisions of other courts of appeals “indicating

that a prison official’s failure to remedy systemic

deficiencies in medical services akin to those alleged

in the present case constituted deliberate indifference

to an inmate’s medical needs.” Pet. App. A7. In so

ruling, the court relied on Newman y. Alabama, 503

7

F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948

(1975); Finney v. Arkansas Bd. of Correction, 505

F.2d 194 (&th Cir. 1974); and Bishop vy. Stoneman,

508 F.2d 1224 (2d Cir. 1974). Pet. App. A7-A9.

After analyzing those cases, the court concluded that

‘a failure to correct systemic deficiencies in the de-

livery of health care services at a prison violated

clearly established law in 1975,” and that “given the

types of systemic problems addressed in Newmai

and Finney * * * a reasonable official in | petition-

er’s] position would have known that a failure to

remedy the alleged inadequacies at Terre Haute con-

stituted deliberate indifference to the medical needs

of the inmate population.” Pet. App. A9.

DISCUSSION

The principal disagreement between the parties is

whether the court below adopted a new standard fov

measuring a public official’s entitlement to qualified

immunity. Petitioner claims that the court of ap-

peals adopted a standard asking whether there was 2

“clear trend” in the law, instead of determining

whether “clearly established” law showed that a pub-

lic official acted unconstitutionally. Respondent

maintains that the court simply determined the state

of the law in 1975 by looking to decisions of other

circuits and did not adopt a new qualified immunity

standard. We believe that respondent has the better

of this argument and that the Seventh Cireuit did

not, as petitioner claims, adopt a new qualified im-

munity standard. By contrast, we agree with peti-

tioner that the court of appeals erred in equating the

facts of this case to the facts of those cases. Peti- —

tioner’s conduct in this case did not rise to the level

of “deliberate indifference” required to establish a

violation of the Eighth Amendment, and thus we

8

believe that petitioner should have been granted

qualified immunity. Nonetheless, we conclude that

the issue on which we believe the court of appeals

erred does not warrant this Court’s review on the

present petition. Moreover, the courts below have not

considered all of the issues that this case presents.

Accordingly, we recommend that the petition be

denied.

1. A public official is entitled to qualified immun-

ity from damages liability if his actions did not vio-

late “clearly established statutory or constitutiona!

rights of which a reasonable person would have

known.” Harlow, 457 U.S. at $18. The Court in

Harlow did not explain precisely how the ‘“‘state of

the law” at a particular time should be evaluated in

order to make this determination. See id. at 818

n.32. See also Procunier v. Navarette, 434 U.S. 555,

565 (1978).’ But the Court has adopted several prin-

ciples to guide that inquiry.

First, the qualified immunity inquiry is retrospec-

tive in nature. The task is to determine “not only

the currently applicable law, but whether that law

was clearly established at the time an action oc-

curred,” Harlow, 457 U.S. at 818, because qualified

immunity protects ‘all but the plainly incompetent or

those who knowingly violate the law,” Malley vy.

Briggs, 475 U.S. 335, 341 (1986). Put another way.

an “official cannot be expected to predict the future

course of constitutional law.” Navarette, 434 U.S.

5 Procunier involved a suit under 42 U.S.C. 1983, rather

than a Bivens action; this Court has explained that the scope

of immunity available to federal officers in a Bivens action

is generally the same as that available to state officials sued

under Section 1983. See Harlew vy. Fitzgerald, 457 U.S. at

818 n.30; Butz v. Economou, 438 U.S. 478, 504 (1978).

ie

9

at 562." Second, the pre-existing law must be estab-

lished with a considerable degree of factual specific-

ity so that an official can know whether his own con-

duct is unlawful. Anderson, 483 U.S. at 639-641.

The right alleged to have been violated must have

been ‘clearly established” in a “particularized”’

sense, id. at 640; a court’s inquiry into the state of

the law must be “‘fact-specific,” id. at 641: and the

“contours of the right must be sufficiently clear that

a reasonable official would understand that what he

is doing violates that right,” id. at 640. It is unnec-

essary for the ‘“‘very action in question” to have been

already held unlawful, but in light of pre-existing

law its illegality “must be apparent.” Jbid.

What remains unclear are the sources of law to

which a court may look in making its inquiry. The

Court held in Navarette, 434 U.S. at 563-565, that the

“law” concerning the censorship of prisoners’ mail

was not “clearly established” by any decision of “this

Court, of the Courts of Appeals, or of the local Dis-

trict Court.” Similarly, in Mitchell v. Forsyth, 472

U.S. 511, 530-535 (1985), the Court ruled that the

law regarding the Executive’s authority to conduct

warrantless domestic security wiretaps was not

“clearly established” in 1970 because six successive

administrations had considered that practice consti-

® Accord Anderson, 483 U.S. at 640 (“in the light of pre-

existing law the unlawfulness [of an official’s conduct] must

be apparent’) ; Davis v. Scherer, 468 U.S. 183, 191 (1984);

Harlow, 457 U.S. at 818 (an official cannot “reasonably be

expected to anticipate subsequent legal developments, nor -

could he fairly be said to ‘know’ that the law forbade conduct

not previously identified as unlawful’); Wood vy. Strickland,

420 U.S. 308, 322 (1975); Pierson Vv. Ray, 386 U.S. 547, 557

(1967). See also Mitchell v. Forsyth, 472 U.S. 511, 528

(1985) (an official is immune unless “the law clearly pro-

scribed the actions” he took).

10

tutional; only three years beforehand this Court had

expressly left that possibility open in Katz v. United

States, 389 U.S. 347, 358 n.23 (1967); and two dis-

trict courts had agreed with the Executive’s position.

But this Court has offered little guidance beyond

those decisions, and has never determined whether

the law must be “clearly established” by decisions of

courts (federal or state, appellate or trial) in the

same jurisdiction where the allegedly unlawful events

tock place.

Here, the Seventh Circuit found no “controlling

precedent” in its own decisions or in the decisions of

this Court. Pet. App. A7. It therefore turned to the

decisions of other circuits involving claims that sys-

temic deficiencies in a prison’s health care facilities

rendered the medical treatment constitutionally in-

adequate. Ibid. Petitioner does not challenge the court

of appeals’ decision to consider the case law in other

circuits to determine whether the “law” was clearly

established in 1975. Pet. Reply Br. 6. Instead, peti-

tioner argues that the court of appeals, in so doing,

erred by reformulating the Harlow “clearly estab-

lished” standard as a “clear trend” standard, which

requires an official to hazard a guess about the future

development of constitutional law. Jd. at 6-7.

We do not believe that, fairly read, the court below

established an improper standard for determining

whether, at the time of the acts in question, the gov-

ernine lew was clearly established. The court said,

in substance, that even in the absence of a controlling

precedent in this Court or the relevant court of ap-

neals, a right can be clearly established if there was

in other courts a sufficiently clear consensus on the

issue that the announcement of a controlling prece-

dent was simply a question of time. And the court

then proceeded to find such a “clear consensus” in the

11

decisions of three other federal courts of appeals—

decisions that, in its view, involved “systemic defic-

iencies in medical services akin to those alleged in the

present case.” Pet. App. A7.

We agree that a controlling precedent in this Court

or in the relevant court of appeals is not invariably

required in order for a constitutional right to be

clearly established. To be sure, difficult questions may

be presented in particular cases—for example, whether

an issue has been sufficiently litigated, and whether a

particular individual may properly be held to have

lost a claim of qualified immunity on the basis of de-

cisions in jurisdictions other than his own. But in

this case, the officer in question—the Medical Direc-

tor of the federal Bureau of Prisons—was a federal

official with national responsibilities, and the courts

whose decisions were regarded as founding the con-

sensus were three federal courts of appeals.’ More-

over, no contrary decisions of other courts were noted.

In these circumstances, we do not think the use of a

“consensus” standard by the court below was im-

proper.

Furthermore, the decision below does not conflict

with the decision of any other court of appeals. Peti-

tioner (Pet. 11-12) asserts a conflict with the decision

of the D.C. Circuit in Zweihon vy. Mitchell, 720 F.2d

162 (1983), cert. denied, 469 U.S. 880 (1984), but no

such conflict in fact exists. Zweibon involved a Bivens

action based on the authorization without a warrant

of certain “national security” wiretaps. At an earlier

stage of the case, the court of appeals had held that

the authorization of such wiretaps was unlawful and

that the decision should be given retroactive effect

* The court of appeals’ approach might well be inappropri-

ate for an official without such national responsibilities.

12

with respect to the plaintiffs’ constitutional claims.

See Ziweibon v. Mitchell, 606 F.2d 1172 (1979), cert.

denied, 453 U.S. 912 (1981). But, at that stage, the

court had left open the issue of qualified immunity,

606 F.2d at 1181, and in its 1983 decision, the court

determined that the defendant’s cl.im of qualified

immunity should be upheld. The court noted that

when the wiretaps were initially installed, “the only

federal courts that had addressed the issue * * * had

concluded that warrants were unnecessary” (72

F.2d at 169), and that even when the wiretaps were

renewed, lower court decisions were sharply divided.

Id. at 171-172. The court emphasized the difference

between, on the one hand, the question whether a con-

stitutional holding should be given retroactive effect

because that holding was “‘clearly foreshadowed” and,

on the other hand, the question whether a constitu-

tional right was “clearly established” at a particular

time for purposes of qualified immunity. /d. at 172-

73.

Thus, the court in Zweibon said nothing that would

conflict with the approach of the court below. In-

deed, no argument could have been made in Zweibon

that there was anything approaching a consensus

supporting recognition of a constitutional right dur-

ing the period of the conduct at issue. And the D.C.

Circuit went out of its way to-emphasize that its de-

termination with regard to retroactivity was based

on a wholly different standard from the standard

applicable to qualified immunity.”

‘ Petitioner apparently views the court of appeals’ decision

as establishing a standard equivalent to the “clearly fore-

shadowed” test rejected in the Zweibon qualified immunity

decision. Pet. 11-12. In view of the court of appeals’ explicit

reliance in this case on its determination that “a clear con-

sensus had been reached” (Pet. App. A7), we do not share

petitioner’s reading of the court of appeals’ decision.

13

2. Although we do not disagree with the standard

articulated by the court below in the context of this

case, we agree with petitioner that the application of

that standard in light of the available precedents was

incorrect. As noted above, the court concluded that

there was “a clear consensus” generally “indicating

that a prison official’s failure to remedy systemic de-

ficiencies in medical services akin to those alleged in

the present case constituted deliberate indifference to

an inmate’s medical needs.” Pet. App. A7. That

“consensus” was purportedly evidenced by the deci-

sions in Newman vy. Alabama, 503 F.2d 1320 (5th

Cir. 1974), cert. denied, 421 U.S. 948 (1975) ; Finney

v. Arkansas Bd. of Correction, 505 F.2d 194 (8th

Cir. 1974); and Bishop vy. Stoneman, 508 F.2d 1224

(2d Cir. 1974). But an examination of the facts of

those cases demonstrates that the court of appeals’

reliance on them to defeat petitioner’s claim of qual-

ified immunity was unwarranted.

I'irst, the conditions found unconstitutional in these

cases were substantially more pervasive and more

severe than those relied on here. Thus, the decisions

provided little indication of what constitutes ‘‘delib-

erate indifference” in less extreme circumstances.

Second, while the courts in Newman, Bishop, and

Finney had begun to recognize that prison adminis-

trative officials generally have a duty to provide a

constitutionally adequate system for the delivery of

inmate medical care, they did not focus on the par-

ticular level of responsibility of any individual prison

official. Specifically, none of the cases indicated,

much less ‘clearly established.” the minimum consti-

tutional expectations for an official in petitioner’s

position, who was not responsible for the daily ad-

ministration of inmate medical care and who had no

direct authority over those (the warden, prison

14

physician, and prison hospital administrator) who

were.

The Newman case was a class action for declara-

tory and injunctive relief for inadequate prison health

care brought against the State of Alabama and its

prison system as a whole. The court made no attempt

to fix individual responsibility among the various

state officials or levels of prison administration in-

volved, which included the state attorney general, the

warden of the prison system’s central hospital facil-

ity, the Alabama Board of Corrections, its commis-

sioner, its chairman, and four members. 503 F.2d at

1322 & n.2. Indeed, the court noted with sympathy

that the defendant prison officials were collectively

“shackled by anachronistic equipment, inadequate

staffing, and parsimonious funding,” which rendered

“Sisyphean” their task of providing constitutionally

adequate care. Jd. at 1333.

In addition, the conditions alleged here are not com-

parable in scope or degree to those found to be uncon-

stitutional in Newman. Newman involved deficiencies

both in the prison system’s central hospital facility

and in the health units of some 19 other institutions.

The conditions at the facilities included use of part-

time or no professional medical staff, unsanitary

cleaning procedures and equipment, chronic shortages

of basic medical supplies (forcing one institution to

use rags and towels in lieu of gauze for bandages),

outdated anesthetic procedures and equipment, lack

of ambulances, lack of fire emergency procedures, lack

of treatment for the mentally ill, and specific instances

of maltreatment including a wound discovered to be

infested with maggots for which the dressing remained

unchanged for another 20 days, and a fatal amputa-

tion made necessary because an incontinent geriatric

inmate was forced to sit on a wooden bench all day to

15

keep his bed clean. The central hospital prison and

diagnostic center itself was found not only to be un-

derstaffed in many respects but also, like the other

prisons, to be suffering from unsanitary conditions,

obsolete equipment and drugs, delays, and limitations

on treatment. 503 F.2d at 1322-1324.

Bishop was a suit under 42 U.S.C. 1983 for injunc-

tive relief against the Vermont commissioner of cor-

rections and the warden of the state prison, alleging

constitutionally inadequate prison medical care. The

allegation was based primarily on specific instances

of lengthy delays to see the prison’s single, part-time

physician (six months for a back problem; a three-

week wait while an inmate lost 30 pounds due to later-

diagnosed cirrhosis of the liver: a three-day wait

while an inmate with a fever was vomiting blood: a

one-week wait for an inmate who could not eat and

was vomiting; and a one-week wait to see the doctor

for severe stomach pains, which upon surgery at a

local hospital turned out to be caused by a ganerenous

appendix). 508 F.2d at 1225. The Second Circuit

held these allegations sufficient to state a claim of de-

liberate indifference to prisoner medical needs, and

remanded the case for further proceedings on the

prayer for an injunction. The court had no occasion

to fix responsibility between the two defendant of-

ficials—the commissioner of corrections and the

prison warden—who in any case did not occupy posi-

tions of authority comparable to petitioner’s. And

the claims showed a pattern of more severe lack of

access to professional medical attention than is sup-

ported by the allegations here.

Finney was also a suit under 42 U.S.C. 1982 for

declaratory and injunctive relief acainst various Ar-

kansas state prison officials and others, seeking eor-

rection of a broad range of alleged unconstitutional

16

prison conditions, among them inadequate medica

care. One of the two prisons in question employed no

physician or psychiatrist; neither prison had dentists

or registered professional nursing supervision; in-

mates with contagious diseases were not isolated;

there was “not even basic emergency service’; and

the medical facilities did nct meet basic hospital li-

censure standards. 505 F.2d at 202-204. The court

also emphasized a state study of the prison’s health

care service, which had found a “[]]ack of sufficient

[non-inmate] personnel,’ “completely inadequate”

equipment, and the need for “more professional as-

sistance,” ‘“[b]etter transportation,” and mainte-

nance of more complete medical records, id. at 203,

but the court did not delineate the conditions under-

lying those conclusions.

Thus, even had these decisions been ‘controlling

precedents” in the Seventh Circuit, they did not rea-

sonably put petitioner, in the particular circum-

stances of this case, on notice of a “right’’ whose

“contours * * * [were] sufficiently clear that a rea-

sonable official would understand that what he is

doing violates that right,” Anderson, 483 U.S. at 640.

Nor, “in the light of pre-existing law,” would the un-

lawfulness of petitioner’s actions in responding to the

conditions alleged here have been “apparent.” Jbid.°

® For the same reasons, Gates V. Collier, 501 F.2d 1291 (5th

Cir. 1974}, cited by respondent, also did nov “clearly estab-

lish” the relevant law. Gates was an injunctive action against

the superintendent of the Mississippi state penitentiary, the

state penitentiary board and the state governor alleging a

broad range of unconstitutional conditions at the state peni-

tentiary, including inadequate medical care. The court of ap-

peals affirmed (and the defendants admitted) that the district

court’s findings of a lack of “prompt or efficient” medical

treatment, “rampant” “‘[ul]nsanitary conditions,” failure to

17

4. Although we disagree with the result reached

by the court below, we believe that this Court’s re-

view is not warranted at this time.

With respect to petitioner’s first question, the

standard articulated by the court of appeals for de-

termining whether a right was clearly established is

not, in this context, an incorrect one, nor does it con-

flict with the approach taken in any other circuit.

The deferdant is a federal official with nationwide

responsibilities, and the “consensus” found to exist

by the court below was based on consideration of a

number of decisions of federal appellate courts.

With respect to petitioner’s second question, we

agree with petitioner that the court of appeals erred

in its conclusion that the facts underlying the deci-

sions in three other Circuits were “akin to those al-

leged in the present case.” Pet, App. A7. However,

we believe that the detailed factual comparison of

this case with those other decisions. as required by

Anderson vy. Creighton, is not an issue that ealls for

this Court’s further review on this petition. More-

isolate contagious inmates, complications caused by “lack

of medical treatment,” and a practice of discouraging in-

mates from seeking care by “punishing those who on ex-

amination appear to be healthy,” 501 F.2d at 1300, amounted

to unconstitutional treatment. Jd. at 1203-1304. But while

the court upheld “for the time beine” the specific staffing and

administrative changes prescribed by the district court (in-

cluding an order to employ at least three full-time physicians

and six full-time licensed or registered nurses, to comply with

national standards for prisoner medical care, and to bring

plant and equipment into compliance with state licensing re-

quirements), it did not pass on the constitutional necessity

for such changes, stating that “any decision dissecting what

precise degree of improvements in [the areas of medical care

and physical facilities] is necessary to meet constitutionally

minimal standards is premature at this stage.” Id. at 1304.

18

over, certain aspects of the case remain to be fully

explored and may shed further light on the issues.

As noted above, even if the conditions of treatment

in this case amounted to a deprivation of a constitu-

tional right, serious questions remain of the extent

to which an individual official may be held account-

able in damages for those conditions. To the extent

that the conditions are the result of a scarcity of

resources or of competent personnel, singling out an

individual as a scapegoat for those systemic problems

is Wholly inappropriate.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor Ge ne ral

STUART M. GERSON

Assistant Attorne y General

DAVID L. SHAPIRO

Deputy Solicitor General

CLIFFORD M. SLOAN

Assistant to the Solicitor General

WENDY M. KEATS

Attorney

OCTOBER 1990

<<

So ns

=

!

i}

|

_