# Amicus Curiae Brief — Brutsche v. Cleveland-Perdue > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0965%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 902 ## Text 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} | _ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0965%3A5. Public record. Not legal advice.