# Amicus Curiae Brief — Davis v. Judy

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2316%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1075

## Text

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.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2316%3A2. Public record. Not legal advice.