Amicus Curiae Brief — Davis v. Judy

Supreme C ourt, U.S

= FILED

sc NOV 2 4 2003

|_ OFFICE OF THE CLERK _

No. 03-608

In the

Supreme Court of the Anited States

*

NATHAN DAVIS, JR.; Jesse Andrews,

Petitioners,

v.

TANGIE JUDY; Danny Mullins,

Respondents.

+

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

¢

BRIEF OF ALABAMA, DISTRICT OF

COLUMBIA, DELAWARE, HAWAII, LOUISIANA,

MISSOURI, NEVADA, SOUTH CAROLINA,

UTAH, AND THE VIRGIN ISLANDS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

¢

William H. Pryor Jr. Scott Rouse

Attorney General Deputy Solicitor General

Nathan A. Forrester Adam P. Plant

Solicitor General Deputy Solicitor General

Counsel of Record *

State of Alabama

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

November 24, 2003 (334) 242-7401, 353-9782 *

(Additional counsel for amici curiae listed inside front cover.)

ADDITIONAL COUNSEL

Robert J. Spagnoletti

Corporation Counsel

District of Columbia

M. Jane Brady

Attorney General

State of Delaware

Mark J. Bennett

Attorney General

State of Hawaii

Richard P. Ieyoub

Attorney General

State of Louisiana

Jeremiah W. Nixon

Attorney General

State of Missouri

Brian Sandoval

Attorney General

State of Nevada

Henry Dargan McMaster

Attorney General

State of South Carolina

Mark L. Shurtleff

Attorney General

State of Utah

Iver A. Stridiron

Attorney General

Territory of the Virgin Islands

QUESTIONS PRESENTED

1. May a court find state officials deliberately

indifferent to the problem of inmate-on-inmate assault at

a state custodial detention facility, in violation of the

Fourteenth Amendment, when the officials took

reasonable steps to ameliorate the problem and did not

have the authority to allocate resources to relieve the

overcrowding and understaffing that were at the root of

the problem, because the court in 20/20 hindsight would

have selected other measures to address the problem?

2. Did the abstract principle that a state official may

not show “reckless disregard” for known risks at custodial

facilities give the state officials in this case fair warning

that the steps they took within their power to ameliorate

the problem of inmate-on-inmate assault were not enough

to satisfy the Fourteenth Amendment, such that these

officials are not entitled to qualified immunity?

TABLE OF CONTENTS

PE AAT EE i csintoerininieninnniieaneeiitinwnninnaiis i

QUBBTIONS PRESEN TIED sevssssseresscossninccensnvessnsssvnsnssssvanees i

ES IE CATES trsirisinicenriemmmnencnsimnrininian li

SRR GE FAT ete FAR onentsiscreseseencsersucspncieinenetvesdionnns iil

INTEREST OF AMICI CURIALG ...................ccsssssscessscserseee 1

SUMED COE ASU DRIGIS | <ssscsenssenessvessssonrseseesosesoncsavonnes 2

FREES sshissinshian insti benedeni naecmamnnn nied 4

I. This Court Should Grant Certiorari to Correct

the Eleventh Circuit’s Failure to Give

Sufficient Deference to the Difficult Policy

Decisions Made by the Georgia Officials

Responsible for Administering Georgia’s

Juvenile Detention System. ...........cccccccsssescccsssssceeeeeeees 5

II. This Court Should Grant Certiorari to Address

the Question Left Open in Wilson v. Seiter

Whether State Officials May Invoke a “Cost”

Defense to Claims of Deliberate Indifference. ............. 8

MR RIIIIT ssitaxacctinicitieshictescansimasaniibicuenenienaninnnninionaniinbie 11

TABLE OF AUTHORITIES

Cases

Allen v. Wright, 468 U.S. 737 (1984) ......sccsssecesssreeseereeees 10

Bell v. Wolfish, 441 U.S. 520 (1979) .......ccsseseesseesessreeeeenees 7

Braircliff Haven, Inc. v. Dep't of Human Resources,

403 F. Supp. 13855 (N.D. Ga. 1975) ......cceesesseesesreeeeeeees 9

Farmer v. Brennan, 511 U.S. 825 (1994)...........ceee008 4,9, 10

Hope v. Pelzer, 536 U.S. 730 (2002) ........:scesseeessesesrseereeees 3

Jones v. North Carolina Prisoners’ Labor Union,

433 U.S. 119 (1977)...ccccrscssesscocsesscssesessocnsenssesersnsnesseseoes 7

Judy v. Walker, No. 02-14042 (11th Cir. May 30,

DODD vivssnsxsrssinniviotienrecminncnensnamncaeiamaeante 3, 5, 8,9

LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1999).......... 8

Parrish v. Dep’t of Corrections, 156 F.3d 1128 (11th

Sie, LOD vic csacisevccssnssngemieeceorvercsisveemanianeiannna enna 8

Procunier v. Martinez, 416 U.S. 396 (1974) .......... cigs 6, 7

Sandin v. Connor, 515 U.S. 472 (1995) .......cccccseesseeees 7,8

Saucier v. Katz, 533 U.S. 194 (2001) ............cecseeesssssnereeeees 2

Thornburgh v. Abbott, 490 U.S. 401 (1989).........seseseeeees 6

Turner v. Safley, 482 U.S. 78 (1987)......cccsssscseesssseeeeseenneees 7

Whitley v. Albers, 475 U.S. 312 (1986) .......seseeeeees cuniata a

Wilson v. Seiter, 501 U.S. 294 (1991)........sssssesss0 4, 8, 9, 10

Statutes

Ga. Code Ann. §§ 15-11-46, -47(a)(3), -49 (2001) ............... 9

iv

Constitutional Provisions

Ga. Comat. art. VE, S 1, Fi Sy & cssiscsssstietenscecisiescsenes 9

Other Authorities

H.R. Conf. Rep. 104-376 (1906)... vss.sos.ssescovionsossossvensesssensueen 8

Michael J. Dale, Lawsuits and Public Policy: The

Role of Litigation in Correcting Conditions in

Juvenile Detention Facilities, 32 U.S.F. L. Rev.

OTS CI ns en ccccsetvensissennnaticonneastn oie wamnaeaaeoias 6

INTEREST OF AMICI CURIAE

The amici States and Territory submit this brief in

support of petitioners Nathan Davis and Jesse

Andrews. At all times relevant to this case, Davis was

the director of the Division of Detention Services of the

Georgia Department of Juvenile Justice. Andrews was

the director of the Gwinnett Regional Youth Detention

Center in Lawrenceville, Georgia, one of the facilities

under Davis’s supervision. The Eleventh Circuit Court

of Appeals held that Davis and Andrews were not

immune from a § 1983 suit brought against them by a

juvenile inmate who was assaulted by another juvenile

inmate at the Lawrenceville detention center.

Amici urge this Court to grant the petition for

certiorari and reverse the judgment of the Eleventh

Circuit. The amici States have an interest in

maintaining their prerogative to develop and

implement policies regarding custodial detention. They

also have an interest in protecting their agents from

the inconvenience and expense of litigation and from

financial liability for policy choices made under

conditions that their agents cannot control. These

interests are threatened by the ruling of the Eleventh

Circuit. The ruling exposes Davis and Andrews to suit

despite the numerous measures they each took to

address the problem of inmate-on-inmate assaults. It

also exposes them to suit for conditions that they could

not control: overcrowding, understaffing, and constant

willful misbehavior on the part of numerous juvenile

inmates.

While the Eleventh Circuit’s ruling addressed a

juvenile detention facility, the ruling applies perforce

to adult correctional facilities run by the States. The

ruling would also seem to apply to other state custodial

2

regimes such as foster care and mental health

facilities. The amici States each have tens of

thousands of persons in these types of custodial

detention. The State of Alabama alone has custodial

care of approximately 40,000! persons (one percent of

the total state population) in its Department of

Corrections, Department of Human _ Resources,

Department of Mental Health, and Department of

Youth Services. The ruling of the Eleventh Circuit

opens the door for many of these individuals to sue the

state officials responsible for supervising their

detention facilities, and to strip these officials of their

qualified immunity, if the individuals can convince a

court to exercise 20/20 hindsight and rule that another

remedial measure not taken by the officials might have

prevented the problem. This kind of standard will

dilute qualified immunity of its intended protective

effect and will chill state officials in the exercise of

their public duties.

SUMMARY OF ARGUMENT

As in most qualified immunity cases, this case

presents two separate but related questions. Under

Saucier v. Katz, 583 U.S. 194 (2001), they must be

addressed in the following order. First, did the actions

of the state officials, as alleged, violate the Fourteenth

Amendment? Second, if they did violate the

Fourteenth Amendment, was the law so “clearly

established” that the state officials had “fair warning”

that their actions violated the Fourteenth Amendment?

1 Counsel for the State of Alabama calculated this figure during

the week prior to the filing of this brief from internal documents

and interviews with agency officials.

3

As for the second question, amici agree with the

petitioners’ analysis in part II of their petition. The

Eleventh Circuit hac misread Hope v. Pelzer, 536 U.S.

730 (2002), to liberate it of the need to consider

whether any cases with remotely similar facts were

available to give Davis and Andrews fair warning that

the actions they were taking violated the Fourteenth

Amendment. Although Hope made clear that, in

egregious circumstances, the constitutional violation

may be so obvious that on-point precedent is not

necessary to give a state official fair warning, Hope did

not unleash the lower courts to equate 20/20 hindsight

with obviousness. Nor did Hope permit the courts to

treat abstract legal standards as “clearly established”

and therefore sufficient to put a state official on notice

that he is committing a constitutional violation in a

particular case. The Eleventh Circuit found it “clearly

established that a prison administrator violates an

inmate’s Fourteenth Amendment rights when the

administrator recklessly disregards known dangers of

inmate-on-inmate violence.” Judy v. Walker, No. 02-

14042 (11th Cir. May 30, 2003) (per curiam) (Pet. App.

20a). This statement is true, but it begs the question of

when an administrator has been “reckless”. The

Eleventh Circuit cited no precedent and provided no

analysis why Davis and Andrews should be have been

on notice that the considerable efforts they made to

improve conditions at the Lawrenceville detention

center were recklessly insufficient to satisfy the

Fourteenth Amendment. This misreading of Hope uv.

Pelzer warrants certiorari review in its own right.

Amici submit this brief primarily, however, to urge

certiorari review of the first_question: whether Davis

and Andrews committed any Fourteenth Amendment

violation. Amici believe that a correct answer to this

question is essential to their ability to maintain

4

custodial facilities free from the chilling effect of

harassing lawsuits and potential monetary liability. In

analyzing the Fourteenth Amendment, the Eleventh

Circuit made two critical errors that warrant certiorari

review.

First, the Eleventh Circuit flouted the well-settled

principle that federal courts should defer to the policy

choices of state officials when analyzing the

constitutionality of state custody regimes. This Court

has held in many cases that state policymakers deserve

considerable leeway in making difficult decisions

balancing competing considerations that are not

always within their immediate control. The Eleventh

Circuit here wandered far afield of that precedent and

showed little deference to the petitioners in this case.

Second, this case presents this Court with the

opportunity to expand upon the “cost” defense first

mentioned in Wilson v. Seiter, 501 U.S. 294, 302 (1991).

It also presents the Court with an opportunity to

clarify the subjectivity requirement of Farmer uv.

Brennan, 511 U.S. 825, 837 (1994), which appeared to

limit the liability of state officials when they have

taken affirmative steps to cure an existing problem but

were not entirely successful. Here, petitioners

employed five measures to cure any problems that

existed at the detention facility and were unable to

create massive reforms because of limitations placed on

them by the state constitution. Under these

circumstances, petitioners should not be held to have

violated the Fourteenth Amendment.

ARGUMENT

Petitioners Davis and Andrews took five different

steps to curtail inmate-on-inmate assaults at the

5

Lawrenceville detention center. Nevertheless, the

Eleventh Circuit held that Davis and Andrews were

deliberately indifferent to the risks of assault, because

they might have taken even more measures that might

have prevented the assault that occurred in this case.

Judy v. Walker, No. 02-14042 (11th Cir. May 30, 2003)

(per curiam) (Pet. App. 18a-19a, 23a). This poorly

reasoned opinion now threatens to expose numerous

state officials to liability by permitting a court to

second-guess the manner in which the officials address

difficult problems that are not entirely within their

control. The Eleventh Circuit reached this decision by

disregarding this Court’s repeated admonitions to defer

to the policy-making authority and expertise of state

legislative and executive bodies. The ruling of the

Eleventh Circuit, if taken to its logical conclusion, will

undermine state prerogative in the administration of

their custodial facilities and will eviscerate qualified

immunity.

I. This Court Should Grant Certiorari to Correct

the Eleventh Circuit's Failure to Give

Sufficient Deference to the Difficult Policy

Decisions Made by the Georgia Officials

Responsible for Administering Georgia’s

Juvenile Detention System.

This Court has consistently afforded state-level

policymakers a high degree of deference when those

officials make decisions regarding the operation of

state custody regimes. The most readily employable

example of this deference is in the operation of state

correctional facilities. There is little principled

distinction between the state correctional facilities that

this Court has extensively discussed and the youth

detention facility at issue in the present case.

Further, it is imminently foreseeable that plaintiffs

6

will use the decision of the Eleventh Circuit as a

vehicle to attack state-level decision-making in the

administration of other custodial regimes, including

mental health facilities, hospitals, juvenile detention

facilities, and foster care programs — an effort that

some advocates have undertaken for several years.?

In Procunier v. Martinez, 416 U.S. 396, 405 (1974),

overruled in part by Thornburgh v. Abbott, 490 U.S.

401 (1989),3 this Court stated that “courts are ill-

equipped to deal with the increasingly urgent problems

of prison administration”. The Court restated that the

judicial branch has traditionally “adopted a broad

hands-off attitude toward the problems” associated

with the operation of state facilities, and the Court

correctly reasoned that the problems associated with

operating those facilities “are complex and intractable,

and, more to the point, they are not readily susceptible

of resolution by decree.” Martinez, 416 U.S. at 404-05.

2 See, e.g., Michael J. Dale, Lawsuits and Public Policy: The

Role of Litigation in Correcting Conditions in Juvenile Detention

Facilities, 32 U.S.F. L. Rev. 675 (1998). Because attorneys for

potential plaintiffs will argue that all state custodial facilities

should be subject to the same arguments traditionally used against

adult-level correctional facilities, amici urge that this Court

similarly employ the same deference to the state officials in this

and other cases that it would to officers in adult correctional

facilities. This similarity has also been recognized by federal circuit

courts. E.g., Alexander v. Boyd, 113 F.3d 1873 (4th Cir. 1997)

(applying provisions of the Prison Litigation Reform Act to juvenile

facilities).

3 Though partially overruled by Thornburgh, the rationale and

legitimacy of the quoted portions ef Martinez remain undisturbed.

In fact, Thornburgh mandated a greater degree of deference to state

officials. 490 U.S. at 413-14.

7

The Court has repeatedly shown deference to state

officials and the regulations that they have

promulgated in numerous cases. See, e.g., Sandin v.

Connor, 515 U.S. 472, 482 (1995) (“[Flederal courts

ought to afford appropriate deference and flexibility to

state officials trying to manage a_ volatile

environment”); Turner v. Safley, 482 U.S. 78, 89-90

(1987) (“[A] standard [of deference] is necessary if

‘prison administrators ..., and not the courts [are] to

make the difficult judgments concerning institutional

operations”) (quoting Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. 119, 128 (1977)); Bell

v. Wolfish, 441 U.S. 520 (1979). Further, the Court has

recognized that the comprehensive planning and

resource allocation decisions that must be made to

operate state custody regimes “are peculiarly within

the province of the legislative and executive branches

of government.” Martinez, 416 U.S. at 405. Deference

to state officials covers responses not only to specific

incidents to which officials are forced to respond, but

also to “prophylactic or preventive measures intended

to reduce the incidence of ... breaches of prison

discipline.” Whitley v. Albers, 475 U.S. 312, 322 (1986).

Even the Eleventh Circuit has acknowledged that

Congress’s intention in enacting the [Prison

Litigation Reform Act] looks to be in line with

the Supreme Court’s view on the involvement of

the federal courts in state prison systems. Both

Congress and the Court suggest a reduced role

for federal courts. When confronted with state

prison litigation, the Supreme Court has written

that “involvement of federal courts in the day-

to-day management of prisons [has led to]

squandering judicial resources with little

offsetting benefit to anyone .... [FJederal courts

8

ought to afford appropriate deference and

flexibility to state officials trying to ‘manage a

volatile environment .

Parrish v. Dep’t of Corrections, 156 F.3d 1128, 1129 n.2

(11th Cir. 1998) (alterations in original) (citing and

quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)).

“Congress designed Section 3626 to ensure that

prospective relief is the ‘minimum necessary to correct

the violation of a federal right.” Jd. (quoting H.R.

Conf. Rep. 104-378 (1995)) (emphasis in original). In

fact, even here, the Eleventh Circuit acknowledged

that its ruling came “perilously close” to the judicial

second-guessing of “difficult” state policy questions.

Judy v. Walker, No. 02-14042 (May 20, 2003) (Pet. App.

19a, 23a) (citing LaMarca v. Turner, 995 F.2d 1526,

1538 (11th Cir. 1993)).

Deference “requires that neither judge nor jury

freely substitute their judgment for that of officials who

have made a considered choice.” Whitley, 475 U.S. at

322. Because the Eleventh Circuit ignored that

principle here, tnis Court should grant certiorari to

review and reverse the judgment of the Eleventh

Circuit.

II. This Court Should Grant Certiorari to

Address the Question Left Open in Wilson v.

Seiter Whether State Officials May Invoke a

“Cost” Defense to Claims of Deliberate

Indifference.

A state official responsible for administering a state

custodial facility cannot violate the Fourteenth

Amendment without exhibiting “deliberate

indifference” to the custodial condition at issue.

Farmer v. Brennan, 511 U.S: 825, 837 (1994); Wilson v.

Seiter, 501 U.S. 294, 303 (1991). In turn, a state

9

official cannot be deliberately indifferent “unless the

official knows of and disregards an excessive risk to

inmate health or safety.” Farmer, 511 U.S. at 837.

In Wilson v. Seiter, 501 U.S. 294 (1991), this Court

wrote that “the validity of a ‘cost’ defense as negating

the requisite intent is not at issue in this case, since

respondents have never advanced it.” Jd. at 302. Here,

by contrast, the petitioner state officials have made a

compelling case that they did not have the resources

necessary to alleviate the overcrowding and

understaffing problems that led to the inmate-on-

inmate assault. Petition for a Writ of Certiorari, Davis

v. Judy, No. 03-0608, at 4-6. This Court should grant

certiorari to address whether a lack of resources may

negate the subjective intent required to make out

“deliberate indifference” under Wilson and Farmer.

Here, Davis and Andrews had neither the

discretion to turn away juveniles that the courts sent to

them nor the constitutional authority to increase their

budget to a level that would cure the overcrowding

problems at the root of this case. Ga. Const. art. VI, §

1, 19 1, 4; Ga. Code Ann. §§ 15-11-46, -47(a)(8), -49

(2001); see also Braircliff Haven, Inc. v. Dep’t of Human

Resources, 403 F. Supp. 1355, 1361 (N.D. Ga. 1975).

Furthermore, Davis and Andrews took five remedial

measures to cure the defect. Judy v. Walker, No. 02-

14042 (11th Cir. May 30, 2003) (per curiam) (Pet. App.

17a) (listing the five remedial measures taken to

prevent assaults at the Lawrenceville detention

center). These measures should have been sufficient to

grant them qualified immunity from suit.

Davis and Andrews did not turn a blind eye to the

problems facing the Lawrenceville detention center.

They repeatedly took steps within their power to

ensure the safety of the juveniles in their charge. They

10

should not therefore be legally responsible for the

decision of higher-ranking officials to allot them a finite

amount of resources to run the center. They should not

be responsible for the decision of the coequal judicial

branch to sentence juveniles to the Lawrenceville

detention center.

Amici do not contend that all modes of legal

recourse should be foreclosed to individuals like

respondents. Respondents simply need to identify and

sue the properly responsible parties. After all, “[a]

plaintiff must allege personal injury fairly traceable to

the defendant’s allegedly unlawful conduct and likely

to be redressed by the requested relief.” Allen uv.

Wright, 468 U.S. 737, 751 (1984). To be true to the

subjective intent requirement of Farmer, a defendant

who has some element of subjective culpability should

be the party against whom a judgment of personal

liability is rendered. 511 U.S. at 837. When, as here,

the defendants took numerous steps to alleviate the

problem and were handcuffed by budgetary restrictions

beyond their control, they should not be deemed to

have violated the Fourteenth Amendment.

In short, the Court should grant certiorari review in

this case to consider the validity of the “cost” defense, a

question the Court left open in Wilson v. Seiter. Amici

urge that this Court accept the “cost” defense, because

it comports with the subjectivity requirement of

Farmer and _ vindicates bedrock principles of

justiciability. Simply put, petitioners Davis and

Andrews have been sued, and have been stripped of

their qualified immunity, for circumstances that they

could not help.

li

CONCLUSION

For the foregoing reasons, this Court should grant

certiorari review to reverse the ruling of the Eleventh

Circuit Court of Appeals.

November 24, 2003

Respectfully submitted,

William H. Pryor Jr.

Attorney General

Nathan A. Forrester

Solicitor General

Counsel of Record *

State of Alabama

Office of the Attorney General

11 South Union Street

Montgomery, AL -36130-0152

(334) 242-7401, 353-9782 *

(Additional counsel for amici

curiae listed inside front cover.)