Petition for Writ of Certiorari — Butler v. Fletcher (No. 06-955)

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5...rame Court, U.S.

: FILED

No. 96-955 JAN 9 - 2007

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

RONALD A. BUTLER,

Petitioner,

ROBERT FLETCHER,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

K. LEE MARSHALL D. BRUCE LA PIERRE *

BRYAN CAVE LLP Appellate Clinic

One Metropolitan Sq., Ste. 3600 WASHINGTON UNIVERSITY

St. Louis, Missouri 63102 SCHOOL OF LAW

(314) 259-2000 One Brookings Drive

St. Louis, Missouri 63130

* Counsel of Record (314) 935-6477

Attorneys for Petitioner

WILSON-EPES PRINTING CO. ,INC. — (202) 789-0096 — WASHINGTON, D.C 20001

QUESTION PRESENTED

The Court has twice “reserved decision on the question

whether something less than the Eighth Amendment’s

‘deliberate indifference’ test may be applicable in claims by

detainees asserting violation of their due process right to

medical care while in custody,” City of Canton v. Harris, 489

U.S. 378, 388 n. 8 (1989), and the circuits are now divided

five to five on the directly related question:

whether deliberate indifference is the degree of culp-

ability that must be shown to establish that pretrial de-

tention conditions amount to punishment in violation of

the Due Process Clause of the Fourteenth Amendment.

PARTIES TO THE PROCEEDING

Petitioner Ronald A. Butler is a former pretrial detainee at

the Ramsey County Adult Detention Center, and Respondent

Sheriff Robert Fletcher is the official who is responsible for

the operation of that facility.

TABLE OF CONTENTS |.

Page

QUESTION PRESENTED ...5..eseccccscocccvssecesnscossscestier ; i

PARTIES TO THE PROCEEDING. ........cccccccsccseeseseeses ii

TABLE OF AUTHORITIES ..o.cccccsccccisccescsescoscessecesseses iv

RP oii cisco eicincetrensderesomnnions l

Re iniasriiectitersnicemscsenibenecbeneenss ce

CONSTITUTIONAL PROVISIONS INVOLVED. ...... 2

STATEMENT OF THE CASE ou......occcsccscssssceeeeeeeesenes 2

REASONS FOR GRANTING THE WRIT ...........0:00-+- 4

I. THE CIRCUITS ARE DIVIDED ON THE

QUESTION WHETHER THE CONSTITU-

TIONALITY OF PRETRIAL DETENTION ~

CONDITIONS IS ADDRESSED UNDER

BELL’S DUE PROCESS STANDARD OR

UNDER THE EIGHTH AMENDMENT DE-

LIBERATE INDIFFERENCE STANDARD.... 8

Il. THE CIRCUIT SPLIT PRESENTS AN

IMPORTANT ISSUE WHETHER’ THE

EIGHTH AMENDMENT STANDARD

FORMULATED TO PROTECT CON-

VICTED PRISONERS FROM “CRUEL AND

UNUSUAL PUNISHMENTS” SHOULD BE

APPLIED TO PREVENT “PUNISHMENT”

$B tp Es ee, 2. eee 19

COMCUIIIION nce sche kaaiheria 25

I Wii aadisicci isis Bees tates cccticsanadsicaeectaeiadaeirensaondit

BN Bs civsinsibiancisterks tna cdedadedadasniacstedeneincenndbutiaeeedaxdiia

Pe tet nn btincocakcinpcainhiaedoinededadionsckidacmciiak

IN i icstranssssssi puis conasboociilapauaasaats dad tgiaaskdneasondstanie

TABLE OF AUTHORITIES

CASES Page

Aston v. Cunningham, No. 99-4156, 2000 WL

796086 (10th Cir. June 21, 2000)...........0. 13

Bainum v. Sedgwick County Comm'rs, 27 F.

Fae POF Ca dls BE) vac adigisecaivnsedeserssenens 13

Bell v. Wolfish, 441 U.S. 520 (1979) ec ceeeseeeeees passim

Benjamin v. Fraser, 343 F.3d 35 (2d Cir. 2003)... 17

Block v. Rutherford, 468 U.S. 576 (1984)............. passim

Board v. Farnham, 394 F.3d 469 (7th Cir.

Es chiiijecsiciondsetsisdcisatinigincbinidanioboicusabanee 9

Bd. of County Comm'rs v. Brown, 520 U.S. 397

gp RRS pam Pie Dae e Mt aD EIRP INO ere 4

Brogsdale v. Barry, 926 F.2d 1184 (D.C. Cir.

ROG Pinsskcihosdascskpalaesctia chesusateasavvatbuaniedimindissdendssas 18

Burrell v. Hampshire County, 307 F.3d 1 (ist

2: SSR eRe ee pF Mey re we Det TR OD 12

Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006)... l

City of Canton v. Harris, 489 U.S. 378 (1989) ..... i,

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239

PRUE Dc eeshsdanieice handed bavleaebtssanedooubabeseepebiouiiahicies 5

Collins v. Ainsworth, 382 F.3d 529(Sth Cir.

Pe Risinscsictonsscascsdnsekinindbbieslaedantenlavsntoanuaersiiiees 16

County of Sacramento v. Lewis, 523 U.S. 833

Ri is calicksnsedintspibehauplaaiemiisaeninain 6

Covino v. Vermont Dep't of Corr., 933 F.2d 128

Ce Bi iorhndsccsdeectesvacivednb paneer 17

Craig v. Eberly, 164 F.3d 490 (10th Cir. 1998)... 13

Daniel v. U.S. Marshal Serv., 188 F. App’x 954

Ea es 14

Daniels v. Woodside, 396 F.3d 730 (6th Cir.

PER iaisvcasiavicsecheneniaisceansiiedibadiestaseeanciabats 13

Davidson v. Cannon, 474 U.S. 344 (1986)............ 20

Demery v. Arpaio, 378 F.3d 1020 (9th Cir.

TABLE OF AUTHORITIES—Continued

Page

DeShaney v. Winnebago County: Dep't of Soc.

SOPs, FEF T.S. LEP CT FGF) occececsesececevesessvevenseses 9

Dittmeyer v. Whetsel, 91 F. App’x 111 (10th Cir.

ENT chn diss ninsovaveniaeseucsaventunnseneecaicubseiabcoibeanendiss 13

Esmont v. City of New York, 371 F. Supp. 2d 202

RR UIEL Ty 1: SUED eesssscncusdtniatintulonseiieetabembnintansans 17

Estelle v. Gamble, 429 U.S. 97 (1976) ...........:cc0es 1]

Farmer v. Brennan, 511 U.S. 825 (1994)......6, 10, 11, 23

Ford v. Mercer County Corr. Ctr., 171 F. App’x

Fe le OE bechetnisennscciniccaiienintanalioenn 15

Frost v. Agnos, 152 F.3d 1124 (9th Cir. 1998)...... 9

Graham v. Connor, 490 U.S. 396 (1989) .............. 21

Hare v. City of Corinth, 74 F.3d 633 (Sth Cir.

NUNIT co dits inks ceadeasdalesicsahetbanaeoicarbase eiienakepanaideddinie tia 15, 16

Hart v. Sheahan, 396 F.3d 887 (7th Cir. 2005)..... 9

Hause v. Vaught, 993 F.2d 1178 (4th Cir. 1993)... 8

Helling v. McKinney, 509 U.S. 25 (1993) ............. 1]

Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005) .. passim

Hydrick v. Hunter, 466 F.3d 676 (9th Cir. 2006).. 7

Ingraham v. Wright, 430 U.S. 651 (1977)............. 10

Jacobs v. W. Feliciana Sheriff's Dep’t, 228 F.3d

rE as BI ican ss polibscrlintapiobninleventecdinadienpistend a.

Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981)..... 16

Lopez v. LeMaster, 172 F.3d 756 (10th Cir.

Ir eiirssicaiczcisoikicisg oxscosidbaabdauuepdiesnuebaadsmamsaiancalaionis 13

Lyons v. Powell, 838 F.2d 28 (1st Cir. 1988)........ 12

Magluta v. Samples, 375 F.3d 1269 (11th Cir.

__, ERE ERR eran tire PRET e ee Caen Mayen MEO 14

Marsh v. Butler County, 268 F.3d 1014 (11th Cir

IOUT Ul desicist lost ctansvaterpediphiiobnstacecrhinniscocscuiiadientaseopineae 14

Martinez v. Claussen, 43 F. App’x 262 (10th Cir

BE soictadsichenscdesleshictapeshiceacutibscdunesindlalescsaeatnssareaediics 13

Mauro vy. Arpaio, 188 F.3d 1054 (9th Cir. 1999) .. 8

TABLE OF AUTHORITIES—Continued

McClendon v. City of Albuquerque, 79 F.3d 1014

Cs FUER iictitirnsatibdcintgnetaetatinibasehaen

McGinnis v. Royster, 410 U.S. 263 (1973)............

McMillian v. Cortland County Corr. Facility,

No. 99-0057, 1999 WL 753336 (2d Cir. Sept.

Bl FO visindicicinaiaapsissisiapovikpuctmascadsapieitouahenemaiss

Nerren vy. Livingston Police Dep't, 86 F.3d 469

CR Ge, Fe seilesotinnscenstetcacitasanaiiiinantuntnicatiangngs

Pietrafeso v. Lawrence County, 452 F.3d 978

TR Ce Fe a vacinncis ite teicstndcsiahisesidcnpicriennigtnssnite

Riggins v. Nevada, 504 U.S. 127 (1992) ...............

Robles v. Prince George’s County, -302 F.3d 262

CE Ee UE i teinntissiasoisnscgedasecarienibiameintionas

Rush v. Astacio, No. 97-2661, 1998 WL 480751

COE, FOE SE, PN ice rtivieisipteintiinivinesescaion

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

Scott v. Moore, 114 F.3d 51 (Sth Cir. 1997)..........

Spencer v. Bouchard, 449 F.3d 721 (6th Cir.

Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243

CE Sl ED whecccpicsssitetacatintonsubsuisealisadeabinsestin

Surprenant v. Rivas, 424 F.3d 5 (1st Cir. 2005)...

Tesch v. County of Green Lake, 157 F.3d 465

CF is Fe iaiiinceiiadiess taiecescetasibaeneceoniiiadaie

Thompson v. County of Medina, 29 F.3d 238 (6th

Re Fr iss eracacsintsncntibicicieddtieatnceliapapidiocdedatadesents

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

Ullrich v. Canyon County Det. Ctr., 84 F. App’x

Ped. Lo Ry: | eeissaneweronreieen non enor

Page

United States v. Salerno, 481 U.S. 739 (1987)....5, 20, 22

Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir.

pA RTL IR RES al SEES

vil

TABLE OF AUTHORITIES—Continued

Page

Wall v. Daup’ County, 167 F. App’x 309 (3d

CARL PUIERA .. * jiovnpnsnbebicnesecsnsisiaiuntabadiestndiaitiain 15

Wilson v. Seiter, 501 U.S. 294 (1991)... eee 11, 23

Youngberg v. Romeo, 457 U.S. 307 (1982)........... 21

CONSTITUTIONAL AND STATUTORY

PROVISIONS

SE RE TAPE is tniacndcendeniines ]

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Ue OGRE, GEOG. FREY OY ccissinccccscnseicciciesicsccteses 2

IN THE

Supreme Court of the Anited States

No.

RONALD A. BUTLER,

Petitioner,

Vv.

ROBERT FLETCHER,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Ronald A. Butler respectfully petitions for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit (App. 15a) is reported at 465 F.3d 340 (8th

Cir. 2006). The magistrate’s report and recommendation

(App. la) and the district court’s order adopting it (App. 13a)

are not reported.

JURISDICTION

The court of appeals entered its judgment on October 13,

2006. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Due Process Clause of Fourteenth

Amendment:

No State shall . . . deprive any person of life, liberty, or

property, without due process of law ....

U.S. Const. amend. XIV, § 1. It also involves the Eighth

Amendment, as applied to the States through the Fourteenth

Amendment:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

U.S. Const. amend. VIII.

STATEMENT OF THE CASE

This case arises from Ronald A. Butler’s allegation that he

contracted tuberculosis at a pretrial detention facility, and it

presents the question whether a constitutional challenge to

pretrial detention conditions should be determined under the

due process standard of Bell v. Wolfish, 441 U.S. 520 (1979),

or under the deliberate indifference standard of the Eighth

Amendment.

1. Ronald A. Butler was a pretrial detainee at the

Ramsey County Adult Detention Center (ADC) in 2001.

App: 15a. After Butler was convicted, he “was transferred to

a prison, where he tested positive for tuberculosis (TB).”

App. 15a. Butler filed a damages action against Sheriff

Robert Fletcher under 42 U.S.C. § 1983 and alleged “that

Fletcher violated [his] Substantive Due Process rights by

failing to adopt and implement adequate safeguards protect-

ing ADC inmates from TB infection.” App. 15a. Butler

alleged “that he spent most of his time at ADC in two-person

cells and in larger holding cells, where as many as twenty-six

short-term detainees were held under deplorable sanitary

conditions” and that “Fletcher’s policy of placing short-term

detainees in multi-person cells without an initial TB screening

inadequately protect{ed] ADC detainees from the serious

health risk of TB.” App. 16a.

2. The district court had jurisdiction to hear Butler’s case

under 28 U.S.C. § 1331. The Magistrate Judge issued a

report and recommendation that Sheriff Fletcher’s motion for

summary judgment be granted. App. lla. The Magistrate

Judge recognized that Butler’s claims “are most appropriately

analyzed under the Due Process Clause of the Fourteenth

Amendment rather than the Eighth Amendment” because he

was a pretrial detainee at the ADC, but he concluded that

“(t]he general standard applied by the Eighth Circuit is the

‘deliberate indifference’ standard of the Eighth Amendment.”

App. 7a, 8a. Applying this Eighth Amendment standard, the

Magistrate Judge found that “[t]here is simply no material

question of fact which could allow a reasonable fact-finder to

conclude that [Fletcher] acted with deliberate indifference.”

App. lla. The district court adopted the report and recom-

mendation and granted summary judgment. App. 13a.

3. On appeal, Butler argued “that the district court erred

in applying the Eighth Amendment standard of deliberate

indifference because, as a pretrial detainee, [he] was protected

by the Fourteenth Amcndment’s guarantee of substantive due

process.” App. 20a. Butler relied principally on Bell v.

Wolfish, 441 U.S. 520 (1979), for the proposition that “[i]n

evaluating the constitutionality of conditions or restrictions of

pretrial detention . . . the proper inquiry is whether those

conditions amount to punishment of the detaince.” App. 20a

(internal quotation marks omitted). Butler also relied on the

Third Circuit’s recent decision in Hubbard v. Taylor, 399

F.3d 150 (3d Cir. 2005), which held that pretrial detention

conditions cases are governed by the standards set by the

Court in Beil. |

4. The Eighth Circuit affirmed. App. 16a. Because

Butler had sued Sheriff Fletcher in his official capacity, the

suit was “in essence . . . against Ramsey County,” and Butler

had to establish both that Sheriff Fletcher had violated his

constitutional rights and that the County was responsible for

this violation. App. 16a (citing Pietrafeso v. Lawrence

County, 452 F.3d 978, 982 (8th Cir. 2006) (citing Bd. of

County Comm'rs v. Brown, 520 U.S. 397, 407 (1997))). With

respect to the Sheriff's liability, the court of appeals rejected

the Bell standard for two reasons. First, the court reasoned

that “the same standard of care is appropriate” for both

“(pretrial detainees and convicted inmates” because they

“have the same right to . . . basic human needs.” App. 21a-

22a. Second, the court believed that the second part of the

Bell standard—whether a condition is reasonably related to a

legitimate government purpose—was “a negligence stand-

ard,” which it found inconsistent with this Court's subsequent

holdings that “liability for negligently inflicted harm is

categorically beneath the threshold of constitutional due

process.” App. 22a (internal quotation marks omitted). For

these reasons, the court of appeals held “that dclibcrate

indifference is the appropriate standard of culpability for all

claims that prison officials failed to provide pretrial detainees

with adequate food, clothing, shelter, medical care, and

reasonable safety.” App. 22a.

REASONS FOR GRANTING THE WRIT

The circuits are evenly divided five to five on the question

of the constitutional standard that should apply to pretrial

detainees’ challenges to conditions of confinement. The

court below held that “deliberate indifference is the appro-

priate standard of culpability” for all claims by pretrial

detainees that officials failed to provide them with ‘“‘adequate

food, clothing, shelter, medical care, and reasonable safety.”

App. 22a. This decision of the Eighth Circuit, and the deci-

sions of four other circuits applying the Eighth Amendment

deliberate indifference standard to conditions of pretrial

detention, is in direct conflict with decisions of five circuits,

which have held that pretrial detainees’ challenges to condi-

tions of confinement must be addressed under the due process

standard of Bell v. Wolfish, 441 U.S. 520 (1979).

The Court drew a sharp distinction in Bel/ between rights

of federal pretrial detainees under the Due Process Clause of

the Fifth Amendment to be free from “punishment” and the

rights of persons convicted of crime to be free from “cruel

and unusual punishment” under the Eighth Amendment. 441

U.S. at 535-37 & nn. 16-18. Bell established a test to de-

termine whether restrictions and conditions accompanying

pretrial detention constitute unconstitutional “punishment,”

and the Court has applied this test to analyze constitutional

challenges to the general practices, rules, and restrictions of

pretrial confinement. See United States v. Salerno, 481 U.S.

739, 746-47 (1987) (holding Bail Reform Act’s authorization

of pretrial detention constitutional); Block v. Rutherford, 468

U.S. 576, 588-91 (1984) (upholding policy of no contact

visits and random shakedown searches of celJs in absence of

detainees). The courts of appeals of five circuits apply this

test, or a directly derivative test, to determine the consti-

tutionality of pretrial detention conditions.

Although Bell establishes a clear due process test to

determine whether conditions of confinement of pretrial de-

tainees are constitutional, the Court’s statements in a few

subsequent decisions have created confusion about the nature

of the States’ obligation to pretrial detainces. In the context

of medical care for pretrial detainees, as opposed to the

general conditions of detention at issue in Be//, the Court has

twice “reserved decision on the question whether something

less than the Eighth Amendment's ‘deliberate indifference’

test may be applicable.” City of Canton v. Harris, 489 U.S.

378, 388 n. 8 (1989); City of Revere v. Mass. Gen. Hosp., 463

U.S. 239, 243-45 (1983). The Court has also noted that the -

due process rights of a pretrial detainee are “at least as great

as the Eighth Amendment protections available to a convicted

prisoner” and that deliberate indifference, which suffices for

Eighth Amendment liability, “must also be enough to sat-

isfy the fault requirement for due process claims based on the

medical needs of someone jailed while awaiting trial.”

County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998)

(internal quotation marks and citation omitted). In light of

these statements, the Eighth Circuit and four other circuits

have adopted the Eighth Amendment deliberate indifference

standard to measure the constitutionality of pretrial detention

conditions.

This circuit split—created by inferences drawn from some

of the Court’s post-Bel/ decisions—is one that can be re- .

solved only by this Court. The split is mature. In challenges to

pretrial detention conditions, the courts of ten circuits have

adopted either Be//’s due process standard or the Eighth

Amendment deliberate indifference standard, and they have

divided five to five. The choice between these two con-

stitutional standards was examined thoroughly in the decision

below, which adopted the Eighth Amendment deliberate

indifference standard, and in decisions of the Third and Fifth

Circuits, which both applied Be//. There is nothing to be -

gained by letting the issue percolate further in the lower courts.

The question of constitutional standards that divides the

courts of appeals is important. The two standards are

fundamentally different. Under Bel/, courts inquire whether

there is an intent to punish, and in the absence of an express

intent, they make an essentially objective determination

whether a condition or restriction of pretrial detention is

reasonably related to a legitimate, nonpunitive objective or is

excessive in relation to such an end. Bel/, 441 U.S. at 538-39.

Under the Eighth Amendment, a prisoner must establish as an

objective matter, that prison conditions rise to the level of a

“serious” deprivation and that as a subjective matter the

deprivation is caused by a prison official’s deliberate in-

difference. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Both standards incorporate deference to the judgment of

institutional officials, but they have significantly different

implications for the administration of pretrial detention fa-

cilities. The two standards also have significantly different

implications for pretrial detainees—‘“persons who have been

charged with a crime but who have not yet been tried on the

charge.” Bell, 441 U.S. at 523. The application of Eighth

Amendment standards to pretrial detainees presents the ques-

tion whether—as the Court has previously recognized—the

constitutional rights of pretrial detainees, and of others in

government custody who have not been convicted of any

crime, are significantly different than the rights of convicted

prisoners. To the extent that pretrial detainees and convicted

prisoners have common rights to basic human necessities, the

circuit split presents the question whether the threshold for

establishing a constitutional violation should be lower for

pretrial detainees than for convicted prisoners. These ques-

tions—which also arise in challenges to the conditions of

confinement of persons who are civilly committed to gov-

ernment custody—will continue to divide the courts of

appeals unless the Court reviews the decision below. See,

e.g., Hydrick v. Hunter, 466 F.3d 676, 695-96 (9th Cir. 2006)

(“[S]tandard applicable to [civilly committed sexually vio-

lent predators] under the Fourteenth Amendment are [sic] af

least coextensive with that applicable to prisoners under the

Eighth Amendment.”).

I. THE CIRCUITS ARE DIVIDED ON THE

QUESTION WHETHER THE CONSTITU-

TIONALITY OF PRETRIAL DETENTION

CONDITIONS IS ADDRESSED UNDER BELL’S

DUE PROCESS STANDARD OR UNDER THE

EIGHTH AMENDMENT DELIBERATE INDIF-

FERENCE STANDARD

In the twenty-seven years after Be/l/ was decided, some

courts of appeals have concluded that the Court’s statements

in a few post-Bel/ decisions require application of the Eighth

Amendment deliberate indifference standard to pretrial de-

tainees’ challenges to conditions of confinement, while others

have adhered to Bell or to standards culled from Bell to

determine whether conditions of pretrial confinement consti-

tute “punishment.”’ The Third, Fifth, and Eighth Circuits

have addressed es iessly the choice between these two dif-

ferent constitutional standards, and the decision below of the

Eighth Circuit adopting the Eighth Amendment deliberate

indifference standard squarely conflicts with the decisions of

the Third and Fifth Circuits applying Bell/’s due process

standard to challenges to conditions of pretrial detention. The

' To the extent that challenges to pretrial detention conditions are

viewed as challenges to institutional regulations, this circuit split some-

times appears not as a choice between Bell’s due process standard and the

Eighth Amendment deliberate indifference standard, but instead as a

choice between Bell's due process standard and the Eighth Amendment

standard applied to prison regulations in Turner v. Safley, 482 U.S. 78

(1987). Compare Hause v. Vaught, 993 F.2d 1079, 1081-84 (4th Cir.

1993) (Turner's Eighth Amendment standard applied to restrictions on

receipt of mail), cert. denied, 510 U.S. 1049 (1994), with Demery v.

Arpaio, 378 F.3d 1020, 1028-29 (9th Cir. 2004) (Beil’s due process

standard, not 7urner’s Eighth Amendment standard, applies to use of

“webcams” to stream live images of pretrial detainees on the Internet),

cert. denied, 125 S. Ct. 2961 (2005), and Mauro v. Arpaio, 188 F.3d

1054, 1058 (9th Cir. 1999) (en banc) (policy prohibiting possession of

sexually explicit materials by pretrial detainees evaluated under 7urner).

circuits are now evenly divided on the question. Although

there are some outliers, the prevailing standard in five circuits

is Bell, and the prevailing standard in five other circuits is

deliberate indifference.’

A. Bell held that federal pretrial detainees’ constitutional

rights are governed by Fifth Amendment due process stand-

ards and not by the Eighth Amendment’s prohibition of cruel

and unusual punishment.’ 441 U.S..520, 535-37 & nn. 16-18

(1979). This distinction between due process rights and

Eighth Amendment rights turns on a State’s authority to

punish prisoners, but not pretrial detainees. DeShaney v.

Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199 n.

* In the two remaining circuits—the Seventh and the Ninth—there is no

prevailing standard. In the Seventh Circuit, one recent decision applied

the Eighth Amendment deliberate indifference standard to pretrial deten-

tion conditions, but another contemporaneous decision found that this

Eighth Amendment standard and the Be// due process standard “merge”

and examined pretrial detention conditions without any inquiry into the

state of the mind of the jail officials. Compare Board v. Farnham, 394

F.3d 469, 477-78, 485-86 (7th Cir. 2005), with Hart v. Sheahan, 396 F.3d

887, 891-94 (7th Cir. 2005); see also Tesch v. County of Green Lake, 157

F.3d 465, 472-75 (7th Cir. 1998) (applying the Eighth Amendment delib-

erate indifference standard to pretrial conditions of confinement and at-

tempting to carve out some room for application of the Be// due process

test). Panels are also divided in the Ninth Circuit. Compare Demery v.

Arpaio, 378 F.3d 1020, 1028 (9th Cir. 2004), cert. denied, 125 S. Ct.

2961 (2005), and Valdez v. Rosenbaum, 302 F.3d 1039, 1045-46 (9th

Cir. 2002), cert. denied, S38 U.S. 1047 (2003) (both applying Bel/), with

Ullrich v. Canyon County Det. Cir., 84 F. App’x 752, 753-55 (9th Cir.

2003), and Frost v. Agnos, 152 F.3d 1124, 1128-30 (9th Cir. 1998) (both

applying deliberate indifference standard).

> Subsequently, the courts of appeals have uniformly held that the

rights of pretrial detainees in state custody are governed by the Due Proc-

ess Clause of the Fourteenth Amendment. See, e.g., Hubbard v. Taylor,

399 F.3d 150, 158 n. 13 (3d Cir. 2005). It is the measure of the Fourteenth

Amendment due process right—Bel/’s due process standard or the Eighth

Amendment deliberate indifference standard—that has divided the courts

of appeals.

6 (1989); see also Ingraham v. Wright, 430 U.S. 651, 671 n.

40 (1977) (“[T]he State does not acquire the power to punish

with which the Eighth Amendment is concerned until after it

has secured a formal adjudication of guilt in accordance with

due process of law.”). Prisoners, who are subject to punish-

ment because they have been convicted of a crime, have an

Eighth Amendment right not to be subject to “cruel and

unusual punishments.” See Farmer v. Brennan, 511 U.S.

825, 832 (1994). Pretrial detainees, however, cannot be

punished at all because they have not been convicted of a

crime, and their rights are protected by the Due Process

Clause. Bell, 441 U.S. at 535.

Under Bell, to determine “whether particular restrictions

and conditions accompanying pretrial detention amount to

punishment,” courts first decide “whether the disability is

imposed for the purpose of punishment or whether it is but an

incident of some other legitimate governmental purpose.” /d.

at 538. In the absence of an express intent to punish, courts

then must determine whether a particular restriction or con-

dition of pretrial detention is “reasonably related to a

legitimate governmental objective” or whether the condition

“appears excessive” in relation to the objective. /d. at 538-39

(internal quotation marks omitted). If pretrial conditions or

restrictions are “not reasonably related to a legitimate goal”

or are excessive, “a court permissibly may infer that the

purpose of the governmental action is punishment that may

not constitutionally be inflicted upon detainees qua de-

tainees.” Jd. at 539. As the Court subsequently noted, Be//

“carefully outlined the principles to be applied in evaluating

the constitutionality of conditions of pretrial confinement.”

Block v. Rutherford, 468 U.S. 576, 584 (1984).

Under the Eighth Amendment, to determine whether prison

conditions constitute “cruel and unusual punishment,” the

Court has established a two-part “deliberate indifference”

standard. This deliberate indifference standard has an objec-

tive component which addresses the seriousness of the depri-

vation and a subjective component which addresses the state

of a prison official’s mind. As the Court has explained,

prison conditions violate the Eighth Amendrnent if, as an

objective matter, they rise to the level of a “serious”

deprivation and if, as a subjective matter, the deprivation is

caused by a prison. official’s deliberate indifference. Wilson

v. Seiter, 50) U.S. 294, 296-302 (1991). Under the subjective

component, a prisoner must show that the official had a

culpable state of mind—that the official was deliberately

indifferent to the prisoner’s health or safety. As the Court

explained in Farmer, “a prison official may be held liable

under the Eighth Amendment for denying humane conditions

of confinement only if he knows that inmates face a substan-

tial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it.” 511 U.S. at 847; see

also Helling v. McKinney, 509 U.S. 25 (1993) (applying a

deliberate indifference test to a prisoner’s claims about

exposure to second hand smoke); Estelle v. Gamble, 429 US.

97 (1976) (applying a deliberate indifference test to a pris-

oner’s medical treatment claims).

B. Relying on some of the Court’s post-Be// statements

and decisions, the Court of Appeals for the Eighth Circuit

expressly rejected any inquiry under Be// whether pretrial

detention conditions were “reasonably related to a legitimate

governmental objective” or were “excessive.” App. 2]a-22a.

The court below ignored the then very recent decision of the

Third Circuit holding that this inquiry under Be// applied to

challenges to pretrial detention conditions, Hubbard v.

Taylor, 399 F.3d 150 (3rd Cir. 2005), and it determined that

the Court’s post-Be// decisions “while not resolving the issue,

are consistent with” the application of the Eighth Amend-

ment deliberate indifference standard to pretrial detainees’

challenges to conditions of confinement. App. 20a.

It then applied the Eighth Amendment deliberate indiffer-

ence standard set in Farmer. App. 22a-23a. Butler’s evi-

dence that he was exposed to fellow pretrial detainees “with

active TB cases in a manner that created an unreasonable risk

of serious harm to his health” satisfied Farmer’s objective

component. App. 22a. Butler, however, could not satisfy the

subjective deliberate indifference component because he

lacked proof that the Sheriff “actually knew of and recklessly

disregarded” a substantial risk of serious harm. App. 23a

(internal quotation marks omitted).

With this decision, the Eighth Circuit joins the courts of

four other circuits that apply the Eighth Amendment delib-

erate indifference standard to constitutional challenges to

conditions of pretrial detention. Although the courts of

appeals for the First, Sixth, Tenth, and Eleventh Circuits have

not expressly addressed the choice between Bell’s due

process standard and the Eighth Amendment deliberate

indifference standard, deliberate indifference is the prevailing

standard in the courts of these circuits:

First Circuit: The most recent decision of the Court of

Appeals for the First Circuit applies the Eighth Amend-

ment deliberate indifference standard set in Farmer to

pretrial detention conditions. Surprenant v. Rivas, 424

F.3d 5, 18-21 (Ist Cir. 2005); see also Burrell v. Hamp-

shire County, 307 F.3d 1, 7 (1st Cir. 2002) (applying the

Eighth Amendment deliberate indifference standard to a

pretrial detainee’s claim that officials failed to protect

him from assault by a fellow detainee). The court of

appeals did not address a much earlier decision that

applied Be//'s Fifth Amendment due process standard to

conditions of confinement of a federal pretrial detainee.

See Lyons v. Powell, 838 F.2d 28, 29-30 (1st Cir. 1988).

Sixth Circuit: The Court of Appeals for the Sixth Cir-

cuit applies the Eighth Amendment deliberate indiffer-

ence standard to pretrial detention conditions. Spencer

v. Bouchard, 449 F.3d 721, 727-30 (6th Cir. 2006);

Thompson v. County of Medina, 29 F.3d 238, 242 (6th

Cir. 1994); see also Daniels v. Woodside, 396 F.3d 730,

735-36 (6th Cir. 2005) (holding that “[t]hrough the Due

Process Clause of the Fourteenth Amendment, pretrial

detainees are entitled to the same Eighth Amendment

rights as are other inmates,” and finding, without

reliance on Bell, that conditions of detention were not

punitive and had a legitimate purpose of preventing the

detainee’s suicide).

Tenth Circuit: The leading 1998 and 1999 decisions of

the Court of Appeals for the Tenth Circuit applied the

Eighth Amendment deliberate indifference standard set

in Farmer to conditions of pretrial detention. Lopez v.

LeMaster, 172 F.3d 756, 759 n. 2, 759-61 (10th Cir.

1999); Craig v. Eberly, 164 F.3d 490; 495 (10th Cir.

1998); see also McClendon v. City of Albuquerque, 79

F.3d 1014, 1022 (10th Cir. 1996) (“Although pretrial

detainees are protected under the Due Process Clause

of the Fourteenth Amendment, the Eighth Amendment

standards applicable to convicted persons provide the

benchmark.”). All more recent decisions are not offi-

cially reported, and these decisions, with one exception,

apply the Eighth Amendment deliberate indifference

standard to pretrial detention conditions. Compare

Dittmeyer v. Whetsel, 91 F. App’x 3111, 118-19 (10th Cir.

2004); Bainum v. Sedgwick County Comm'rs, 27 F.

App’x 965, 968-69 (10th Cir. 2001); and Aston v.

Cunningham, No. 99-4156, 2000 WL 796086 (10th Cir.

June 21, 2000) (all applying the deliberate indifference

standard); with Martinez v. Claussen, 43 F. App’x 262,

262-63 (10th Cir. 2002) (upholding magistrate’s deter-

mination under Be// of constitutionality of pretrial de-

tention conditions).

Eleventh Circuit: Absent any argument about differ-

ences between the Fourteenth Amendment due process

standard applicable to pretrial detainees and the Eighth

Amendment delibcrate indifference standard applicable

to persons convicted of a crime, the Court of Appeals for

the Eleventh Circuit applies the Eighth Amendment

deliberate indifference test to pretrial detention condi-

tions. Marsh v. Butler County, 268 F.3d 1014, 1024 n.

5, 1028-34 (11th Cir. 2001) (en banc). Although one

panel subsequently has applied Be// in a Bivens action to

a claim by a federal pretrial detainee that harsh treatment

by federal officials was solely for the purpose of

punishment, this case did not raise any question about

pretrial detention conditions. Magluta v. Samples, 375

F.3d 1269, 1272, 1275 (11th Cir. 2004). Apart from this

case raising a claim of intentional punishment of a

pretrial detainee by federal officials, the court of appeals

otherwise follows Marsh and applies the Eighth

Amendment deliberate indifference standard as _ the

measure of federal pretrial detainees’ Fifth Amendment

due process rights. See Daniel v. U.S. Marshal Serv.,

188 F. App’x 954, 961-62 (11th Cir. 2006) (holding that

Fifth Amendment Due Process Clause applies in Bivens

action but the standard is the same under both the Eighth

and Fifth Amendments).

C. The Eighth Circuit’s decision to adopt the Eighth

Amendment deliberate indifference standard squarely con-

flicts with the decisions of the Third and Fifth Circuits to

apply Bell’s due process standard to pretrial detention

conditions.

The Court of Appeals for the Third Circuit held in Hub-

bard that pretrial detainees’ claims about conditions of

confinement are addressed by the standard set in Bel/. 399

F.3d at 166-67. The court canvassed its prior decisions and

recognized that it had permitted lower courts to’ measure

pretrial detainees’ claims by Eighth Amendment standards.

Id. at 164-66. It then expressly rejected the district court’s

determination that “pretrial detainees are afforded essentially

the same protection as convicted prisoners and that an Eighth

Amendment analysis is appropriate for determining if the

conditions of confinement rise to the level of a constitutional

violation.” /d. at 166 (internal quotation marks omitted). It

held instead that pretrial detainees “are not within the ambit

of the Eighth Amendment{‘s] prohibition against cruel and

unusual punishment . . . because they have not as yet been

convicted of anything” and that “[a]s the Supreme Court

explained in Bell, pre-trial detainees cannot be punished at all

under the Due Process Clause.” /d. (internal quotation marks

and citation omitted).

The court remanded the case for consideration under a two-

part test that it had previously “distilled” from Bell:

[W]e must ask, first, whether any legitimate purposes are

served by these conditions, and second, whether these

conditions are rationally related to these purposes. In

assessing whether the conditions are reasonably related

to the assigned purposes, we must further inquire as to

whether these conditions “cause [inmates] to endure

[such] genuine privations and hardship over an extended

period of time, that the adverse conditions become

excessive in relation to the purposes assigned to them.”

Id. at 159-60 (alterations in original) (citation omitted), 168.

The Third Circuit continues to follow Hubbard and to apply

its Bell due process standard to pretrial detention conditions.

See Ford v. Mercer County Corr. Ctr., 171 F. App’x 416,

418-19 (3d Cir. 2006); Wall v. Dauphin County, 167 F. App’x

309, 311-12 (3d Cir. 2006).

The Fifth Circuit has reached the same result as the Third

Circuit. As part of a comprehensive clarification of its case

law governing pretrial detainees, the en banc Fifth Circuit

distinguished pretrial detainees’ “attacks [on] general condi-

tions, practices, rules, or restrictions of pretrial confinement”

and claims “based on a jail official’s episodic acts or

omissions.” Hare v. City of Corinth, 74 F.3d 633, 643 (Sth

Cir. 1996) (en banc); see also Nerren v. Livingston Police

Dep't, 86 F.3d 469, 473 n. 25 (Sth Cir. 1996) (describing

Hare as a “single opinion that clearly and concisely

articulates and unifies our court’s case law in this area”). The

Fifth Circuit held that Be// applies to claims that conditions of

pretrial detention are unconstitutional, Hare, 74 F.3d at 643,

644-45, and that the Farmer deliberate indifference standard _

is the “measure of culpability for episodic acts or omissions.”

Id. at 643, 645-50; see also Scott v. Moore, 114 F.3d 51, 53

(Sth Cir. 1997) (en banc) (distinguishing claims about

conditions of confinement from claims based on episodic acts

or omissions). After this 1996 en banc decision, the Fifth

Circuit has consistently applied the Be// due process test to

“conditions of confinement” claims and the deliberate

indifference standard to “episodic acts or omissions.” See,

e.g., Collins v. Ainsworth, 382 F.3d 529, 540 (Sth Cir. 2004)

(applying Bell to pretrial detainee’s overcrowding claim);

Jacobs v. W. Feliciana Sheriff's Dep't, 228 F.3d 388, 393 &

n. 3 (5th Cir. 2000) (applying the deliberate indifference

standard to claim that officials failed to prevent pretrial

detainee’s suicide).

Although the Second, Fourth, and District of Columbia

Circuits have not comprehensively discussed the choice be-

tween the Be// due process standard and the Eighth Amend-

ment deliberate indifference standard in the same fashion as

the Third and Fifth Circuits, courts in these three circuits also

apply Bell to pretrial detention conditions:

Second Circuit: The Court of Appeals for the Second

Circuit recognized beginning in 1981 that Bell

“established the framework for evaluating complaints of

unconstitutional prison conditions by pretrial detainees.”

Lareau v. Manson, 651 F.2d 96, 102 (2d Cir. 1981). In

this initial decision, the court determined that over-

crowding of pretrial detainees was “punishment” pro-

hibited by the Due Process Clause because it was “not

reasonably related to a legitimate governmental objec-

tive.” Jd. at 102, 103. Subsequently, other panels have

continued to apply Bell to determine whether the

conditions of pretrial detention are reasonably or ration-

ally related to legitimate governmental objectives. Mc-

Millian v. Cortland County Corr. Facility, No. 99-0057,

1999 WL 753336, at *1 (2d Cir. Sept. 14, 1999); Rush v.

Astacio, No. 97-2661, 1998 WL 480751, at *1 (2d Cir.

July 31, 1998); Covino v. Vermont Dep’t of Corr., 933

F.2d 128, 130 (2d Cir. 1991).

One panel has recently addressed the intersection of the

Eighth Amendment deliberate indifference test and the

Bell due process test, and it adopted a modified

deliberate indifference standard that is the functional

equivalent of the Be// standard. Benjamin v. Fraser, 343

F.3d 35 (2d Cir. 2003); see also Esmont v. City of New

York, 371 F. Supp. 2d 202, 217 (E.D.N.Y. 2005) (fol-

lowing Fraser and applying Bell to an arrestee’s claims

about conditions of confinement). In determining

whether jail conditions violated the Constitution, the

court expressly rejected the contention that a pretrial

detainee must establish deliberate indifference under the

Eighth Amendment standard of Farmer. Fraser, 343

F.3d at 51. Although the court held that “a pretrial

inmate mounting a constitutional challenge to environ-

mental conditions must show deliberate indifference,” it

also held that deliberate indifference “may generally be

presumed from an absence of reasonable care.” /d. at

50; see also id. at 51 (“[I]n a challenge by pretrial de-

tainees asserting a protracted failure to provide safe

prison conditions, the deliberate indifference standard

does not require the detainees to show anything more

than actual or imminent substantial harm.”).

Fourth Circuit: The Court of Appeals for the Fourth

Circuit applies a “standard . . . culled from the one

announced by the Court in Be//” to pretrial detention

conditions. Slade v. Hampton Rds. Reg’! Jail, 407 F.3d

243, 251 n. 7 (4th Cir. 2005). A pretrial detainee “first

must show the imposition of a particular ‘disability’”

and then “[t]o establish that a particular condition or

restriction of his confinement is constitutionally imper-

missible ‘punishment,’ the pretrial] detainee must show

either that it was (1) imposed with an expressed intent to

punish or (2) not reasonably related to a legitimate

nonpunitive governmental objective, in which case an

intent to punish may be inferred.” Jd. at 251 (inter-

nal citations omitted); see Robles v. Prince George’s

County, 302 F.3d 262, 269-70 (4th Cir. 2000) (arrestee

was a pretrial detainee and conditions of restraint are

evaluated under Be//’s due process standard), reh’g and

reh’g en banc denied, 308 F.3d 437 (4th Cir. 2002), cert.

denied, 538 U.S. 945 (2003).

District of Columbia Circuit: The Court of Appeals

for the District of Columbia Circuit has had apparently

little occasion to consider the constitutional claims of

pretrial detainees, but it has held that pretrial detention

conditions are evaluated under Bel/l’s due _ process

standards. Brogsdale v. Barry, 926 F.2d 1184, 1187 &

n. 4 (D.C. Cir. 1991). This court recognized that the

“foundation of the constitutional right{s]” of prison

inmates and pretrial detainees is different: “pretrial

detainees must rely upon the Fifth Amendment’s guar-

antce of due process, whereas the convicted plaintiffs

must ground their claims upon the Eighth Amendment’s

ban on cruel and unusual punishment.” /d. at 1187.

Although overcrowding and other “conditions consti-

tuting the constitutional violation may be essentially the

same .. . the threshold for establishing a consti-

tutional violation is clearly lower for the pretrial

detainees.” Jd. at 1187 n. 4. For pretrial detainees,

who have “not yet [been] convicted of any crime, the

question is whether prison conditions amount to pun-

ishment of the detainee” under Be//, and “[a] condition

may amount to punishment if it is not reasonably related

to a Icgitimate [institutional] goal—if it is arbitrary or

purposeless.” Jd. (second alteration in original) (cita-

tions and internal quotation marks omitted).

Il. THE CIRCUIT SPLIT PRESENTS AN IMPOR-

TANT ISSUE WHETHER THE EIGHTH

AMENDMENT STANDARD FORMULATED TO

PROTECT CONVICTED PRISONERS FROM

“CRUEL AND UNUSUAL PUNISHMENTS”

SHOULD BE APPLIED TO PREVENT “PUN-

ISHMENT” OF PRETRIAL DETAINEES

The Circuit split raises important questions about the scope

of constitutional protection accorded to pretrial detainees.

The choice of constitutional standards is important because

pretrial detainees and convicted prisoners have fundamentally

different rights: the Due Process Clause prohibits any pun-

ishment before conviction, and the Eighth Amendment

prohibits the cruel and unusual punishment of prisoners. The

constitutional standards formulated to protect these rights are

also fundamentally different: Be// provides in part that courts

can infer an unconstitutional intent to punish from an

essentially objective determination that the conditions accom-

panying detention are not reasonably related to a legitimate,

nonpunitive end or are excessive in relation to that end; the

Eighth Amendment standard requires a subjective inquiry

whether an official acted with a particular degree of culp-

ability—deliberate indifference. As the decision below

squarely illustrates, the threshold for showing that pretrial

detention conditions amount to punishment under Bell is

lower than the threshold for showing that prison conditions

amount to cruel and unusual punishment. This lower

threshold is a product of “concern that a State would attempt

to punish a detainee for the crime for which he was indicted

via preconviction holding conditions.” Sandin v. Connor,

515 U.S. 472, 484 (1995).

The decisions of the Eighth Circuit and of four other

circuits that “deliberate indifference is the appropriate stand-

ard of culpability,” App. 22a, for challenges to pretrial

detention conditions raise this threshold. Be//, which “care-

fully outlined the principles to be applied in evaluating the

conditions of pretrial detention,” Block, 468 U.S. at 584, does

not require any showing that officials acted with a particular

degree of culpability.

A. Pretrial detainees—‘“‘persons who have been charged

with a crime but who have not yet been tried on the charge”

—and convicted prisoners have different constitutional rights.

Bell, 441 U.S. at 523. The “State does not acquire the power

to punish . . . until after it has secured a formal adjudication

of guilt in accordance with due process of law.” /d. at 535 n.

16 (internal quotation marks omitted). Given the importance

of the State’s compliance “with the constitutional guarantees

traditionally associated with criminal prosecutions,” pretrial

detainees cannot be punished at all. /d. at 535 & n. 16 (“Due

process requires that a pretrial detainee not be punished.’’);

see, e.g., Sandin, 515 U.S. at 484 (“[A] detainee may not be

punished prior to an adjudication of guilt in accordance with

due process of Jaw.”) (internal quotation marks omitted);

United States v. Salerno, 481 U.S. 739, 747 (1987) (dis-

tinguishing between “impermissible punishment” and “per-

missible regulation” of pretrial detainees); see also McGinnis

v. Royster, 410 U.S. 263, 273 (1973) (“It would hardly be

appropriate for the State to undertake in the pretrial detention

period programs to rehabilitate a man still clothed with the

presumption of innocence.”). Convicted prisoners, however,

“may be punished.” Bell, 441 U.S. at 535 n. 16. The Eighth

Amendment, which assumes the State’s power to punish “a

sentenced inmate,” prohibits only “cruel and unusual” pun-

ishment. /d.

The rights of pretrial detainees and of convicted prisoners

have different sources, and the Court has_ frequently

suggested that “[t]he Due Process Clause provides broader

protection than does the Eighth Amendment.” Davidson v.

Cannon, 474 U.S. 344, 358 (1986) (Blackmun, J., dissenting);

see Sandin, 515 U.S. at 484-85 (distinguishing procedural due

process rights of pretrial detainees and convicted prisoners);

Riggins v. Nevada, 504 U.S. 127, 135 (1992) (decisions about

forced medication which affect a pretrial detainee’s trial

rights may warrant closer scrutiny than similar decisions for

inmates who have already been tried and convicted); Graham

v. Connor, 490 U.S. 386, 395 n. 10 (1989) (distinguishing

protection of pretrial detainees and convicted prisoners from

the use of excessive force); see also Youngberg v. Romeo,

457 U.S. 307, 321-22 (1982) (“Persons who have been

involuntarily committed are entitled to more considerate

treatment and conditions of confinement than criminals

whose conditions of confinement are designed to punish.”).

B. Bell’s due process test, which is designed to protect

pretrial detainees from punishment, and the Eighth Amend-

ment deliberate indifference test, which is designed to protect

convicted prisoners from cruel and unusual punishment, are

significantly different. Comparison of the two constitutional

standards shows the importance of the fact of conviction:

pretrial detainees have a lower threshold for establishing

unconstitutional conditions of confinement under Be// than

convicted persons under the Eighth Amendment deliberate

indifference standard.

_ Under Bell, the central inquiry in determining whether

pretrial detention conditions “amount to punishment in the

constitutional sense of that word” is “whether the disability is

imposed for the purpose of punishment or whether it is but an

incident. of some other legitimate governmental purpose.”

441 U.S. at 538. In the absence of “an expressed intent to

punish on the part of detention facility officials,” a court

should determine whether an “alternative purpose to which

[the restriction] may rationally be connected is assignable for

it, and whether it appears excessive in relation to the

alternative purpose assigned [to it.]” Jd. (alteration in

original) (internal quotation marks omitted). On the one

hand, “if a particular condition or restriction of pretrial

detention is reasonably related to a legitimate governmental

objective, it does not, without more, amount to punishment.”

Id. at 539 (internal quotation marks omitted). On the other

hand, “if a restriction or condition is not reasonably related to

a legitimate goal . . . a court permissibly may infer that

the purpose of the governmental action is punishment that

may not constitutionally be inflicted upon detainees qua

detainees.” /d.

Bell, in short, outlines two means of establishing that

pretrial detention conditions amount to punishment: (1) a

showing that a condition of confinement was imposed with an

express intent to punish or, alternatively, (2) an inference of

intent to punish from an essentially objective determination

whether pretrial detention conditions are reasonably related to

a legitimate nonpunitive end or are excessive in relation to

such an end. In later cases, the Court has considered both

means of establishing that restrictions and conditions accom-

panying pretrial detention amount to punishment. In United

States v. Salerno, the Court upheld the Bail Reform Act. 481

U.S. 739 (1987). The Court found that Congress had not

“formulate[d] the pretrial detention provisions as punishment

for dangerous individuals.” Jd. at 747. It also made an

objective determination that “preventing danger to the com-

munity is a legitimate regulatory goal” and that “the incidents

of pretrial detention [are not] excessive in relation to the

regulatory goal.” /d. The Court read the Be// due process test

in a similar fashion in Block v. Rutherford, 468 U.S. 576

(1984), in upholding a jail policy denying pretrial detainees

contact visits. There was no finding that the purpose of the

policy was “to punish the inmates.” /d. at 585. The Court

also made an objective determination that “there is a valid,

rational connection between a ban on contact visits and

internal security of a detention facility” and that the “flat

prohibition on contact visits” was not an “excessive response

to... security objectives.” Jd. at 586, 588.

Although Bell provides in part for an essentially objective

inquiry whether a particular pretrial detention condition is

reasonably related to a legitimate nonpunitive objective, the

Court has rejected a purely objective test as the measure of a

prisoner’s right to be free from cruel and unusual punishment

under the Eighth Amendment. See Farmer, 511 U.S. at 837.

Instead, the Eighth Amendment standard has both an ob-

jective component and a subjective component. To satisfy the

objective component, prisoners must show that the conditions

of confinement “pos[e] a substantial risk of serious harm.”

Id. at 834. The subjective component “follows from the

principle that ‘only the unnecessary and wanton infliction of

pain implicates the Eighth Amendment.’” /d. at 834 (quoting

Wilson, 501 U.S. at 297). As the Court has explained, “[t]o

violate the Cruel and Unusual Punishments Clause, a prison

official must have a sufficiently culpable state of mind,” and

“{iJn prison-conditions cases that state of mind is one of

deliberate indifference to inmate health or safety.” /d.

(internal quotation marks and citation omitted). To be

“deliberately indifferent,” a prison official “must both be

aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference.” Jd. at 837.

The decision in the case below squarely illustrates the

difference between the two standards. Absent any allegation

that pretrial detention conditions are imposed with an express

intent to punish, courts inquire under Be// whether these

conditions are “reasonably related to a legitimate govern-

mental objective” or whether they are “excessive” in relation

to that purpose. 441 U.S. at 538-39. The Court in Block

made an essentially objective determination that a prohibition

on contact visits was reasonably related to security interests

and not excessive. 468 U.S. 586-88. Similarly, the inquiry in

the case below would have been whether close confinement

of pretrial detainees who are not subject to even minimal

screening to detect a serious, highly contagious disease like

tuberculosis is “reasonably related” to legitimate economic

efficiency and security objectives or whether such conditions

are excessive in relation to these objectives. In making this

determination, the court below would have been mindful of

the Court’s repeated caution about “the very limited role that

courts should play in the administration of detention

facilities.” Block, 468 U.S. at 584; see also Bell, 441 U.S. at

540 n. 23 (Courts should defer to the expert judgment of

detention officials “[i]n determining whether restrictions or

conditions are reasonably related to the Government’s interest

in maintaining security and order and operating the institution

in a manageable fashion.”).

Instead of applying Be//, the Eighth Circuit applied the

Eighth Amendment deliberate indifference test, which has

“both an objective and a subjective component.” App. 22a.

Butler’s evidence that he had contracted tuberculosis at a

pretrial detention facility was sufficient to survive a summary

judgment motion on the objective component: exposure to

other detainees “with active TB cases . . . created an unrea- -

sonable risk of serious harm to health.” App. 22a. The

pretrial detainee could not show, however, that Sheriff

Fletcher “act[ed] with deliberate indifference to this risk of

harm.” App. 23a. This “subjective component of deliberate

indifference require{d] proof that [the official] actually knew

of and recklessly disregarded |a] substantial risk of serious

harm” App. 23a (internal quotation marks omitted).

C. This degree of culpability—deliberate indifference—

raises the threshold for pretrial detainees to establish that

detention conditions amount to punishment. It reduces the

scope of constitutional protection accorded to pretrial de-

tainces to the level of protection accorded to convicted

prisoners. The imposition of this degree of culpability calls

directly into question the essentially objective inquiry

outlined in Bell: “a court permissibly may infer that the

purpose of the governmental action is punishment that may

not constitutionally be inflicted upon detainees gua detain-

ees” if that restriction or condition is not reasonably related to

a legitimate goal or if it is excessive. 441 U.S. at 539. The

Court should review the decision below to resolve the circuit

split and to determine whether the principles “carefully

outlined” in Bell for evaluating the conditions accompanying

pretrial detention, Block, 468 U.S. at 584, should be modified

to incorporate the degree of culpability—deliberate indiffer-

ence—required to establish a violation of convicted prison-

ers’ Eighth Amendment rights not to be subject to cruel and

unusual punishment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

K. LEE MARSHALL D. BRUCE LA PIERRE *

BRYAN CAVE LLP Appellate Clinic

One Metropolitan Sq., Ste. 3600 WASHINGTON UNIVERSITY

St. Louis, Missouri 63102 SCHOOL OF LAW

(314) 259-2000 One Brookings Drive

St. Louis, Missouri 63130

* Counsel of Record (314) 935-6477

Attorneys for Petitioner

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civil File No. 03-5760 (JRT/AJB) .

RONALD BUTLER,

+ Plaintiff,

BOB FLETCHER,

Defendant.

REPORT AND RECOMMENDATION

THIS MATTER is before the Court, United States Magis-

trate Judge Arthur J. Boylan, on Plaintiff's motion to compel

disclosure and Defendant’s motion for summary judgment

pursuant to Fed. R. Civ. P. 56. Plaintiff's underlying pro se

complaint alleges violations of constitutional rights during his

incarceration at the Ramsey County Adult Detention Center

(“ADC”). The Plaintiff appears pro se, and the Defendant

appears by David F. MacMillan, Assistant Ramsey County

Attorney. The matter has been referred to the undersigned

Magistrate Judge for a Report and Recommendation pursuant

to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. For the reasons

which follow, it is ordered that Plaintiff's motion be denied

and recommended that Defendant’s motion be granted and

the case dismissed with prejudice.

I. BACKGROUND

Plaintiff Ronald A. Butler (“Plaintiff’) is currently serving

a 144-month sentence imposed pursuant to a guilty plea

entered on the charge of criminal sexual conduct in the first

degree. See Butler v. State, No. C9-02-121, 2002 WL

31056624 at *1 (Minn. Ct. App. 2002). Plaintiff brings this

action pursuant to 42 U.S.C. § 1983, alleging that his civil

rights under the Fifth, Eighth and Fourteenth Amendments

were violated when he contracted tuberculosis while incarcer-

ated at the ADC as a result of Defendant’s inaction or indif-

ference. See Compl., 9] 1(B)(5) and IV; (Doc. No. 1); Mem. in

Support of Compl., p. 2, 12, 17; (Doc. No. 2). Defendant is

the Ramsey County Sheriff and is the public official respons-

ible for the operation and policies of the ADC.' Fletcher Aff,

4] 2-3; (Doc. No. 35); Minn. Stat. § 387.11.

A. Tuberculosis: Epidemiology, Diagnosis and Treatment

In conjunction with the Motion for Summary Judgment,

Defendant submitted an affidavit by Dr. Neal Holtan (“Dr.

Holtan’’), the medical director of the Ramsey County Public

Health department and the physician for the Public Health

Department’s tuberculosis clinic, which sets forth the epide-

miology, diagnosis and treatment of tuberculosis.’ Holtan

Aff., Vf 3-15; (Doc. No. 31). Tuberculosis is a pulmonary dis-

ease, and persons infected will have either an active case or a

latent case. /d., 4 5. An individual with an active case is

contagious, and the disease can damage the individual’s lungs

or other organs, and if untreated can be fatal. Jd., $9] 5-6. An

individual with a latent case is not contagious, and the tuber-

' Prior to December 28, 2003, the ADC was located in downtown St.

Paul at 14 West Kellogg Boulevard. Flecther Aff., 4 4. This is the facility

where Plaintiff was incarcerated. On December 4, 2003, a new detention

facility was completed at 425 Grove Street in St. Paul, and the Kellogg

Boulevard facility was shut down. /d., §| 7-8. The acronym “ADC,” as

used in this Report and Recommendation, refers to the Kellogg Street

facility where Plaintiff was incarcerated.

* In DeGidio v. Pung, Eighth Circuit Court of Appeals Judge Diana E.

Murphy, at the time a United States District Judge of this Court, also dis-

cussed in detail tuberculosis infection, diagnosis and control. See 704

F.Supp. 922, 924-28 (D.Minn. 1989), aff'd 920 F.2d 525 (8th Cir. 1990).

culosis bacilli are present in the body but rendered dormant

by the body’s immune system and do not actively threaten the

individual’s health. /d.

Tuberculosis is transmitted when an individual with an

active, untreated case and bacilli in their lungs, coughs,

sneezes, or otherwise exhales the bacilli into the air where it

can be inhaled by other individuals. /d. 4] 7. Individuals who

inhale the tuberculosis bacilli can, but do not always, become

infected. Jd. Generally, fairly prolonged exposure to an in-

fected person is required before an uninfected person will

contract tuberculosis. Jd. An individual with active tubercu-

losis may have symptoms including cough, fever, weight loss,

night sweats and constant tiredness. /d., 4] 8. The protocol for

diagnosis of tuberculosis is to first administer a Purified

Protein Derivative (“PPD”), commonly known as a Mantoux

test, which involves injecting an individual with a standard

dose of Tuberculin. /d., § 9. The injection site is “read”

between 48 and 72 hours after the injection is administered,

and if the individual develops a palpable, raised, hardened

area (an “induration”), the area is measured. /d. For individu-

als in correctional facilities, if the induration is 10mm or

greatcr, the individual is deemed positive for tuberculosis. /d.

Both individuals with active tuberculosis and latent inac-

tive tuberculosis will have positive PPD tests. /d. ¥ 10.

Individuals with latent inactive tuberculosis will not have

other symptoms or represent a health risk for those with

whom they come in contact. Id. In order to determine whether

an individual with a positive PPD test has active tuberculosis,

it 1s necessary to conduct a chest x-ray and a confirming

sputum test in which a sample of the material the individual

coughs up is analyzed for the presence of tuberculosis bacilli.

Id., 4 11. An incarcerated individual with a confirmed, active

case of tuberculosis should not be confined in the general

population of a correctional facility. /d., 4 13. Rather, such an

individual should be isolated from uninfected individuals for

treatment. Id, § 13. Once treatment has heen started, and the

individual is no longer infectious, the individual can be

returned to the general population. Jd.

B. Tuberculosis Protocol at the ADC

All inmates at the ADC are interviewed upon intake re-

garding whether they have any infectious diseases or symp-

toms suggestive of tuberculosis. Fletcher Aff., J 10; Exh. A,

407.11; Exh. B-2. Inmates incarcerated at the ADC are ad-

ministered a Mantoux test within fourteen days of admission,’

and the test is read within 48-72 hours after administration.

Berg Aff., 98; Exh. A; (Doc. No.32). If an inmate has a

positive reaction to the Mantoux test, or if the individual has

symptoms suggestive of tuberculosis, a chest x-ray is given

within 72 hours. /d. If the chest x-ray is indicative of tuber-

culosis and there are no other symptoms, the individual is

housed separately and sputum examination is conducted. /d.

If the chest x-ray is indicative of tuberculosis and there are

symptoms, the individual is transferred to the hospital for

further evaluation including a sputum examination. /d. Such

an individual will be housed at the hospital until tuberculosis

has been ruled out as a diagnosis. /d.

* At some point in time, the tuberculosis screening protocol was changed

from screening inmates within seven days of admission to screening with-

in fourteen days of admission. Berg Aff, Exh. A, p. 2 (in the sentence

setting forth the time period for screening, the number 7 is crossed out and

14 is handwritten on the document). The fourteen day period accords with

the requirements of Minnesota State law. See Minn. Stat. § 144.445, Subd.

1 (“All persons detained or confined for 14 consecutive days or more in

facilities operated, licensed, or inspected by the Department of Correc-

tions shall be screened for tuberculosis with either a Mantoux test or a

chest roentgenogram (x-ray) as consistent with screening and follow-up

practices recommended by the United States Public Health Service or the

Department of Health{.]”).

C. Plaintiff's Pre-Conviction Detention

On July 7, 2001, Plaintiff was arrested and taken to the

Ramsey County Adult Detention Center (“ADC”). Sz.

German [sic] Aff, § 4; (Doc. No. 34). From July 7, 2001, to

July 10, 2001, Plaintiff was in administrative segregation, and

on July 10, 2001, he was transferred to the general inmate

population and assigned to a shared cell. /d., 4 5. On July 16,

2001, Plaintiff was transferred to the Ramsey County Work-

house due to overcrowding at the ADC. /d., 4 6. A Mantoux

test was administered at the Ramsey County Workhouse, and

on July 21, 2001, a reading of the test was negative. Mem. in

Support of Compl., p. 6. On July 26, 2001, Plaintiff was

transferred to the Washington County Jail and on August 16,

2001, he was returned to the ADC where he was again

confined in the general population in a two person cell. St.

Germain Aff., 4 7. On September 6, 2001, Plaintiff was again

transferred to the Washington County Jail. /d. He remained

there until he was returned to the ADC on October 18, 2001.

Id. Plaintiff remained at the ADC until he was transferred to

the custody of the Commissioner of Corrections of the State

of Minnesota on October 31, 2001. Jd. Another Mantoux test

was administered after transfer to the Commissioner of Cor-

rections and a subsequent reading was positive for tuber-

culosis bacilli. Mem. in Support of Compl., p. 7.

II. DISCUSSION

Plaintiff alleges violations of his Procedural Due Process

rights and Substantive Due Process rights under the Four-

teenth Amendment and violations of his Eighth Amendment

rights. /d., p. 12-18. The core allegation of Plaintiff's claims

is that the ADC had madequate safeguards in place to prevent

Plaintiff from contracting tuberculosis. Plaintiff specifically

contends that tle policy of “double-celling” inmates at the

ADC was tantamount to “rolling the dice” with respect to the

possibility that inmates would catch or spread communicable

diseases. /d., p. 10-11. Plaintiff also contends that it is indis-

putable that he contracted tuberculosis while incarcerated

at the ADC. Response to Mot. for Summ. J., p. 1-2; (Doc.

No. 37).

Defendant seeks to dismiss Plaintiff's complaint arguing

that: 1) the undisputed evidence shows that no person with

active, communicable tuberculosis was confined in the ADC

contemporaneously with Plaintiff; 2) the undisputed evidence

shows that Plaintiff was not impermissibly deprived of his

procedural or substantive due process rights; and 3) Plaintiff

has not shown that his Eighth Amendment rights were

violated. See Mem. in Support of Mot. for Summ. J., p. 9-15;

(Doc. No. 30).

A. Plaintiff's Discovery Motion

As an initial matter, the Court must address Plaintiff's

Motion to Compel Disclosure, filed pursuant to Fed. R. Civ.

P. 37, 26(a) and 26(e)(1). (Doc. No. 27). Plaintiff previously

filed a Motion for Production of Documents, which was

denied by this Court as Moot, based in part on Defendant’s

assurance that documents would be produced. (Doc. No. 25,

26). Plaintiff's current Motion refers in part to the documents

which were produced by Defendant, disputing some informa-

tion provided and also asking for more information. Plaintiff

did not attach any of the documents or responsive information

referenced, and the Court has no way of placing his current

requests in context. Plaintiff also requests information related

to inmates he believes he was incarcerated with at the ADC

who may have been infected with tuberculosis. Such a request

appears to be duplicative to Plaintiff's previous Motion for

Production of Documents. Plaintiff again asks for appoint-

ment of counsel, and requests that this Court order Defendant

to “disclose completely” and to “cease misleading, false re-

sponse[s].”. The Court deems Plaintiffs Motion largely

duplicative and irrelevant. Furthermore, there is no indication

that Plaintiff conferred with Defendant regarding the re-

quested discovery as required by Fed. R. Civ. P. 37(a)(2)(A).

Plaintiff's Motion is denied.

B. Summary Judgment Standard of Review

Summary judgment is appropriate where there are no dis-

puted issues of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

Corp. Catrett, 477 U.S. 317, 322-23 (1986); Unigroup. Inc. v.

O’Rourke Storage & Transfer Co., 980 F.2d 1217, 1219-20

(8th Cir. 1992). The nonmoving party must demonstrate the

existence of specific facts in the record that create a genuine

issue for trial. See Krenik v. County of Le Sueur, 47 F.3d 953,

957 (8th Cir. 1995). A party opposing a properly supported

motion for summary judgment may not rest upon mere alle-

gations or denials, but must set forth specific facts showing

that there is a genuine issue for trial. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). The Court must view

the evidence, and the inferences drawn from the evidence, in

the light most favorable to the nonmoving party. See Enter.

Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996).

However, “summary judgment procedure is properly re-

garded not as a disfavored shortcut, but rather as an integral

part of the Federal Rules as a whole, which are designed ‘to

secure the just speedy, and inexpensive determination of

every action.”” Celotex, 477 U.S. at 327.

C. Plaintiff's Claims

Plaintiff brings claims under the Eighth Amendment and

the Due Process Clause of the Fourteenth Amendment. Be-

cause the events relevant to this matter occurred when Plain-

tiff was a pretrial detainee, his claims are most appropriately

analyzed under the Due Process Clause of the Fourteenth

Amendment rather than Eighth Amendment. Crow v. Mont-

gomery, 403 F.3d 598, 601 (8th Cir. 2005). A pretrial de-

tainee’s Due Process rights are violated when conditions

of confinement constitute punishment which deprives the

detainee of the minimal civilized measures of life’s necessi-

ties. See Owens v. Scott County Jail, 328 F.3d 1026, 1027

(8th Cir. 2003) (per curiam) (citing Rhodes v. Chapman, 452

U.S. 337, 347 (1981); Bell v. Wolfish, 441 U.S. 520, 535 n.16

(1979)). Pretrial detainees are “accorded protections ‘at least

as great’ as those the Eighth Amendment affords a convicted

prisoner.” Boswell v. County of Sherburne, 849 F.2d 1117,

1121 (8th Cir. 1988) (quoting City of Revere v. Massachusetts

Gen. Hosp., 463 U.S. 239, 244 (1983)). The general standard

applied by the Eighth Circuit is the “deliberate indifference”

standard of the Eighth Amendment. See, Crow, 403 F.3d at

601; Owens, 328 F.3d at 1027 (citing Whitnack v. Douglas

County, 16 F.3d 954, 957 (8th Cir. 1994)).

While a pretrial detainee faces a lighter burden for dem-

onstrating constitutional violations than a convicted prisoner,

see Smith v. Copeland, 87 F.3d 265, 268 n.4 (8th Cir. 1996), a

detainee must still demonstrate the elements of a deliberate

indifference claim, Hartsfield v. Colbum, 371 F.3d 454, 457

(8th Cir. 2004). Deliberate indifference exists when a prison

official knows that an inmate faces a substantial risk of

serious harm to an inmate’s health and fails to take reasonable

measures to abate the risk. See Farmer v. Brennan, 511 U.S.

825, 847 (1994); Olson v. Bloomberg, 339 F.3d 730, 735 (8th

Cir. 2003). To prove deliberate indifference, a plaintiff must

show that the official: 1) knew of a substantial risk of serious

harm to the plaintiff; and 2) disregarded or was deliberately

indifferent to the risk by failing to take reasonable measures

to abate it. See Pagels v. Morrison, 335 F.3d 736, 740 (8th

Cir. 2003). Mere negligence or malpractice is insufficient to

rise to a constitutional violation. Dulany v. Carnahan, 132

F.3d 1234, 1239 (8th Cir. 1997) (citing Estelle v. Gamble,

429 U.S. 97, 104-06 (1976)).

Defendant first argues that the record contains only unsup-

ported allegations that Plaintiff contracted tuberculosis at the

ADC. Defendant argues that Plaintiff has not identified any-

one he shared a cell with who had a medically confirmed case

of tuberculosis or that anyone he shared a cell with exhibited

any of the symptoms of active tuberculosis. See Mem. in

Support of Mot. For Summ. J., p. 10. Defendant further as-

serts that, in fact, there was no inmate with active tuberculosis

in the ADC in 2001. J/d., see also Berg Aff., ¥ 9 (stating that

during her tenure, there has been only one case of active

tuberculosis, which occurred in 1999). The Court acknowl-

edges that Plaintiff's factual allegations are tenuous and

speculative, and Plaintiff most likely has not met his burden

to set forth specific facts showing that there is a genuine issue

for trial. See. Anderson v. Liberty Lobby, 477 U.S. at 256; see

also Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999)

(reiterating that a medical need or deprivation must be

obvious to a layperson or supported by medical evidence);

Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995) (same).

Nonetheless, the Court need not decide this matter on the

sufficiency of Plaintiff's factual allegations as to whether he

contracted tuberculosis while detained at the ADC. As ex-

plained below, even assuming that Plaintiff did contract

tuberculosis while detained at the ADC, Plaintiff's claims

must still be dismissed.

With respect to the first element of the deliberate indiffer-

ence analysis, there is no dispute that Defendant was aware

that tuberculosis poses a potentially serious health risk to

incarcerated individuals. In 1993, the Minnesota State Legis-

lature enacted Minn. Stat. § 144.445, which established

screening procedures for incarcerated individuals and em-

ployees of correctional institutions. See Minn. Laws 1993,

c. 167, § 6 (eff. Jan. 1, 1994). Pursuant to Minn. Stat. § 387.11,

Defendant has charge and custody of the ADC and was

responsible for implementing ADC policy regarding tuber-

culosis screening and containment . See Fletcher Aff., J§ 3, 9.

As the official in charge of implementing and overseeing the

policy. Defendant necessarily knew of the risk posed by

tuberculosis. Thus, the issue in this matter is whether Defen-

10a

dant disregarded or was deliberately indifferent to the risk

posed by tuberculosis.

Plaintiff asserts that Defendant was deliberately indifferent

to the serious health risk of tuberculosis by not immediately

screening detainees for tuberculosis and by housing detainees

in two-person cells. See Mem. in Support of Compl., p. 14.

Plaintiff urges the Court to look to the procedures utilized by

the Los Angeles County Jail to control the potential spread of

tuberculosis as the standard against which the ADC should be

measured.’ /d., p. 14-15 (citing Jeffries v. Block, 940 F.Supp.

1509, 1515 (C.D.Cal. 1996)). The Court questions whether

the policy of the Los Angeles County Jail, assuming that it

has not been modified in the intervening time, is the gold

standard that Plaintiff seems to think. The Court also sees

significant differences between Ramsey County and Los

Angeles County with respect to climate, population, relevant

state law, and other factors which render comparison difficult,

if not impossible. The Court thus declines to attempt any

comparison between the policies of the ADC and the Los

Angeles County Jail.

In any event, the question to be answered in this matter 1s

not whether Defendant achieved some ideal, but rather

* The Los Angeles County Jail’s policy was

to ask all incoming inmates if they ever had tuberculosis, or cur-

rently had tuberculosis, and to give a chest x-ray to all inmates to

discover tuberculosis. * * * Any inmate whose chest x-ray disclosed

a possible finding of tuberculosis was given a second chest x-ray,

skin tests and culture studies to confirm the finding. * * * The County

Jail, in 1994, had in operation a “pure air germicidal system” which

ventilated the cells, dorms, and hallways and made them well

ventilated. * * * It was also the custom and practice in 1994,

defendant Block declares, that if an inmate was discovered to have

tuberculosis upon arrival at the County Jail, he was isolated and

segregated from inmates who did not have tuberculosis.

Jeffries, 940 F.Supp. at 1515.

lla

whether he exhibited deliberate indifference to the serious

health risk of tuberculosis. See Pagels, 335 F.3d at 740. The

uncontroverted evidence in the record shows that not only did

Defendant take reasonable steps to abate the risk of tuber-

culosis, but that he showed considerable attention to the

potential serious health risk of tuberculosis. The record shows

that Defendant promulgated procedures governing the diag-

nosis and confinement of inmates with tuberculosis. See

Fletcher Aff., §§ 9-10; Exh. B. The procedures promulgated

by Defendant comply with Minnesota State law, see Minn.

Stat. § 144.445, and were formulated in conjunction with

input from the staff and director of the healthcare services

unit, Berg Aff., § 7. Neither the fact that the ADC did not

immediately screen all incoming inmates with a Mantoux test

or a chest x-ray, nor the fact that the ADC housed inmates in

“double-cells” comes close to the type of act or omission

which comprises a constitutional violation. There is simply

no material question of fact which could allow a reasonable

fact-finder to conclude that Defendant acted with deliberate

indifference and it is recommended that this matter be dis-

missed with prejudice.

Ili. RECOMMENDATION

Based on the foregoing, and all the files, records, and pro-

ceedings herein, it is hereby ordered that:

1. Plaintiff's Motion to Compel Disclosure (Doc. No. 27)

be DENIED; and recommended that:

2. Defendant’s Motion for Summary Judgment (Doc. No.

28) be GRANTED, and this matter be dismissed with pre-

judice.

Dated: July 14, 2005

/s/ Arthur J. Boylan

Arthur J. Boylan

United States Magistrate Judge

12a

Pursuant to Local Rule 72.1(c)(2), any party may object to

this Report and Recommendation by filing with the Clerk of

Court, and by serving upon all parties, written objections

which specifically identify the portions of the Report to

which objections are made and the bases for each objection.

This Report and Recommendation does not constitute an

order or judgment from the District Court and it is therefore

not directly appealable to the Circuit Court of Appeals. Writ-

ten objections must be filed with the Court before August 1,

2005.

13a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civil File No. 03-5760 (JRT/AJB)

RONALD BUTLER,

Plaintiff,

BoB FLETCHER,

Defendant.

ORDER

Ronald A. Butler, pro se plaintiff;

David F. MacMillan, Esq., Assistant Ramsey County At-

torney, for the defendant, Bob Fletcher.

Based upon the Report and Recommendation by United

States Magistrate Judge Arthur J. Boylan dated July 14, 2005,

with all the files and records, and no objections having been

filed to said Recommendation, IT IS HEREBY ORDERED

that;

1. Plaintiff Ronald Butler’s Motion to Compel Disclosure

(Doc. No. 27) is DENIED; and

2. Defendant’s Motion for Summary Judgment (Doc. No.

28) is GRANTED, and this matter is dismissed with pre-

judice.

Dated: August 2, 2005

at Minneapolis, Minnesota

/s/ John R. Tunheim

John R. Tunheim

United States District Judge

l4a

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case Number: 03-5760 JRT/AJB

RONALD BUTLER

BOB FLETCHER

JUDGMENT IN A CIVIL CASE

O Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict.

&) Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered.

IT IS ORDERED AND ADJUDGED THAT:

Plaintiff Ronald Butler’s motion to compel discovery is

denied. Defendant’s motion for summary judgment is

granted and this matter is dismissed with prejudice.

August 3, 2005 RICHARD D. SLETTEN, CLERK

Date /s/_ Victoria Moralez

(By) Victoria Moralez, Deputy Clerk

15a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 05-3480

RONALD BUTLER,

Plaintiff-Appellant,

Vv.

ROBERT FLETCHER,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Minnesota.

Submitted: June 14, 2006

Filed: October 13, 2006

Before LOKEN, Chief Judge, BEAM and ARNOLD, Cir-

cuit Judges.

LOKEN, Chief Judge.

Ronald Butler was detained at the Ramsey County Adult

Detention Center (ADC) in St. Paul, Minnesota, pending

criminal charges. After his conviction, Butler was transferred

to a prison, where he tested positive for tuberculosis (TB). He

filed this § 1983 damage action against Sheriff Robert

Fletcher, alleging that Fletcher violated Butler’s Substantive

Due Process rights by failing to adopt and implement ade-

quate safeguards protecting ADC inmates from TB infection.

l6a

The district court! granted Fletcher’s motion for summary

judgment, concluding that a reasonable jury could not find

that Fletcher acted with deliberate indifference to the serious

health risk TB poses to inmates and detainees. Butler appeals,

arguing that the court erred in applying the Eighth Amend-

ment standard of deliberate indifference because Butler was a

pretrial detainee, that in any event he presented sufficient

evidence of deliberate indifference, and that the court com-

mitted procedural errors. Reviewing the grant of summary

judgment de novo, we affirm.

Butler sued Sheriff Fletcher in his official capacity, so in

essence, this is a suit against Ramsey County. “A county is

liable [under § 1983] if an action or policy itself violated

federal law, or if the action or policy was lawful on its face

but led an employee to violate a plaintiff's rights and was

taken with deliberate indifference as to its known or obvious

consequences.” Pietrafeso v. Lawrence County, 452 F.3d 978,

982 (8th Cir. 2006), quoting Board of County Comm'rs vy.

Brown, 520 U.S. 397, 407 (1997). Here, Butler alleges that he

spent most of his time at ADC in two-person cells and in

larger holding cells, where as many as twenty-six short-term

detainees were held under deplorable sanitary conditions. He

asserts that Fletcher’s policy of placing short-term detainees

in multi-person cells without an initial TB screening inade-

quately protects ADC detainees from the serious health risk

_of TB. Butler has neither alleged nor shown that any Ramsey

County employee violated his rights. Therefore, the § 1983

issue is whether the County’s policies for diagnosing and

treating TB in its detention facilities violated Butler’s con-

stitutional rights.

' The Honorable JOHN R. TUNHEIM, United States District Judge for

the District of Minnesota, based upon the Report and Recommendation of

the Honorable ARTHUR J. BOYLAN, United States Magistrate Judge for

the District of Minnesota.

17a

It is well known that TB is a serious disease harmful to the

lungs and other organs and that prisons are “high risk envi-

ronments for tuberculosis infection.” DeGidio v. Pung, 920

F.2d 525, 527 (8th Cir. 1990). Minnesota responded to this

risk by enacting detailed statutory provisions that require man-

datory tuberculosis screening of correctional facility inmates

and employees. Minn. Stat. § 144.445.

To support his summary judgment motion, Sheriff Fletcher

submitted affidavits describing the nature of the TB health

risk at ADC, the policies he has implemented to avoid TB

infections, and Butler’s period of detention. The affidavit of

Dr. Neal Holtan, a physician at the Ramsey County Public

Health Department TB clinic, explained that infected persons

have either active TB, which is contagious, or inactive TB,

which is suppressed by the immune system and not conta-

gious. TB is spread when a person with active TB coughs,

sneezes, or exhales. More than a few days exposure is usually

required to contract the disease. A person with active TB is

no longer contagious once treatment begins. Thus, in a prison

setting, an inmate diagnosed with active TB should be segre-

gated from the general population -for treatment until the

inmate is no loner infectious. Dr. Holtan further explained

that TB is diagnosed by conducting a Mantoux test, which

identifies an infected individual 48-72 hours after the test is

administered.’ After a person is infected, the TB incubation

period preceding a positive Mantoux test varics from two to

twelve weeks. If the Mantoux test is positive, a chest x-ray or

sputum test will reveal whether the person has active TB. See

generally Center for Disease Control, Prevention and Control

of Tuberculosis in Correctional and Detention Facilities:

Recommendations from CDC, 55 Morbidity and Mortality

’ A standard dose of Tuberculin is injected into a patient's forearm.

The patient is considered positive for TB if the injection site develops a

“palpable, raised, hardened area” measuring 10 mm or greater after 48 to

72 hours.

18a

Wkly. Rep. RRO9, July 7, 2006, available at http://www.cdc.

gov/mmrw/mmrw_rr.html.

Sheriff Fletcher’s affidavit averred that he promulgated a

detailed Policy and Procedures Manual that governs the cus-

tody and treatment of persons detained at a Sheriff's Depart-

ment facility. The Manual provides that detainees must re-

ceive an initial medical screening within 24 hours of entering

ADC. The booking deputy documents this screening on a

Ramsey County Medical Screening Form. In addition, the

Ramsey County Medical Director adopted a protocol for the

diagnosis and treatment of TB that prescribes a two-step

screening process. First, the protocol provides that an “Intake

Interview” shall be conducted:

Inmates will be interviewed upon intake regarding

whether they have any infectious diseases or symptoms

suggestive of tuberculosis including cough, weight loss,

fever, night sweats or loss of appetite. If the inmate

reports or exhibits or acknowledges any symptoms sug-

gestive of tuberculosis, Correctional Medical Staff will

be notified as soon as possible and a chest x-ray will be

taken within 72 hours.

Second, the protocol provides that a Mantoux test shall be

administered within fourteen days, as § 144.445, subd. 1, re-

quires. If the test is positive, a chest x-ray is taken. Whenever

a chest x-ray suggests active TB, the inmate must be trans-

ferred to the hospital and treated.

The affidavit of Deputy Sheriff John St. Germain reported

that Butler arrived at ADC on July 7, 2001, and transferred to

a two-person cell in the general inmate population on July 10.

On July 16, he was sent to a different Ramsey County

detention facility, where he was given a Mantoux test on July

21, two wecks after his initial detention. The test result was

negative. Butler returned to ADC on August 16, was again

sent to a different facility on September 6, and returned to

19a

ADC on October 18. On November |, after transferring to a

correctional facility to begin his prison sentence, Butler tested

positive for TB. Thus, although Butler was detained continu-

ously from his negative Mantoux test on July 21 until he

tested positive on November i, he was housed at ADC only

from August 16 to September 6 and from October 18 to 31.

The affidavit of Jane Berg, manager of the health care pro-

gram provided by the Ramsey County Public Health Depart-

ment to the Sheriff's Department, averred that no ADC in-

mate “is known to have had an active case of tuberculosis

since 1999.”

In response to the motion for summary judgment, Butler

asserted that he was not initially screened at ADC, that many

inmates were not detained at ADC long enough to receive a

Mantoux test, and that conditions in the overcrowded holding

cells were “abhorrent.” He further alleged that the fact he

contracted TB at ADC “‘is, quite frankly, indisputable.” Butler

also submitted an affidavit from former inmate Charles Burns

averring that, while incarcerated at ADC from October 26,

2001, to February 13, 2002, Burns’s cell mate related that he

had a positive Mantoux test followed by a chest x-ray and

was required to take antibiotics. Finally, Butler moved for the

appointment of counsel and to compel additional discovery.

The magistrate judge issucd a Report and Recommendation

that Fletcher’s motion for summary judgment be granted and

Butler’s procedural motion be denied. The magistrate judge

reasoned that, because Fletcher promulgated policies for the

diagnosis and treatment of TB that complied with § 144.445

and were formulated with input from the director of health

care services, no reasonable fact-finder could find that Fletcher

acted with deliberate indifference to the serious health risk

that TB poses in a prison environment. When Butler failed to

file timely objections to the Report and Recommendation, the

district court granted summary judgment and dismissed the

complaint with prejudice.

20a

Il.

On appeal, relying on Bell v. Wolfish, 441 U.S. 520 (1979),

Butler primarily argues that the district court erred in apply-

ing the Eighth Amendment standard of deliberate indifference

because, as a pretrial detainee, Butler was protected by the

Fourteenth Amendment’s guarantce of substantive due pro-

cess. In Bell, a conditions of confinement case, the Supreme

Court explained that the Eighth Amendment protects a con-

victed inmate from “cruel and unusual” punishment, whereas

the Due Process Clause restricts punishing a detainee prior to

an adjudication of guilt. Therefore, “[i]n evaluating the con-

stitutionality of conditions or restrictions of pretrial detention

. .. the proper inquiry is whether those conditions amount to

punishment of the detainee.” 441 U.S. at 535.

Prior to Bell, the Supreme Court held that deliberate indif-

ference to a prisoner’s serious medica! needs “constitutes the

unnecessary and wanton infliction of pain proscribed by the

Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104

(1976) (quotation omitted). After Be// noted the difference

between Substantive Due Process and Eighth Amendment

protections, we have recognized it is an open question but

have repeatedly applied the deliberate indifference standard

of Estelle to pretrial detainee claims that prison officials un-

constitutionally ignored a scrious medical need or failed to

protect the detainee from a serious risk of harm. See Vaughn

v. Green County, 438 F.3d 845, 850 (8th Cir. 2006); Whitnack

v. Douglas County, 16 F.3d 954, 957 (8th Cir. 1994) (collect-

ing cases). Later Supreme Court decisions, while not resolv-

ing the issue, are consistent with this approach. See County of

Sacramento v. Lewis, 523 U.S. 833, 850 (1998) (“Since it

may suffice for Eighth Amendment liability that prison offi-

cials were deliberately indifferent to the medical needs of

their prisoners, it follows that such deliberately indifferent

conduct must also be enough to satisfy the fault requirement

for due process claims based on the medical needs of some-

2la

one jailed while awaiting trial.”); DeShaney v. Winnebago

County Dept. of Soc. Serv., 489 J.S. 189, 198-200 & n.5

(1989); Davidson v. Cannon, 474 U.S. 344, 358 (1986)

(Blackmun, J., dissenting).

Despite this subsiantial precedent to the contrary, Butler

argues that the deliberate indifference standard is improper

because it does not afford pretrial detainees “significantly

greater protection under the Fourteenth Amendment than

prisoners enjoy under the Eighth Amendment.” He urges us

to apply what he calls the standard in Bell, determining

whether alleged inadequacies in the procedures for diagnos-

ing TB-infected inmates were “reasonably related to a legiti-

mate governmental objective” and were not “excessive” in

relation to that purpose. We reject this contention for two

reasons.

First, under Bel/, the Substantive Due Process inquiry is

whether the detainee has been improperly punished. “The

infliction of punishment is a deliberate act intended to chas-

tise or deter.” Wilson v. Seiter, 501 U.S. 294, 300 (1991)

(quotations omitted). The standard urged by Butler applies, in

the absence of a showing of an express intent to punish, “to

determine whether a governmental act is punitive in nature.”

441 U.S. at 537. By contrast, the governmental duty to protect

at issue in this case is not based on a pretrial detainee’s right

to be free from punishment but is grounded in principles of

safety and general well-being: “when the State by the af-

firmative exercise of its power so restrains an individual’s

liberty that it renders him unable to care for himself, and at

the same time fails to provide for his basic human needs—

e.g., food, clothing, shelter, medical care, and reasonable

safety—it transgresses the substantive limits on state action

set by the Eighth Amendment and the Due Process Clause.”

DeShaney, 489 U.S. at 200 (citations omitted). Pretrial detain-

ces and convicted :nmates, like all persons in custody, have

22a

the same right to these basic human needs. Thus, the same

standard of care is appropriate.

Second, the standard urged by Butler—whcther conditions

of pretrial detention are reasonably related to a legitimate

governmental objective—was applied in Bel/ to determine

whether an improper intent to punish may be inferred. Butler

urges that it be adopted in this case as a primary standard of

care, without regard to Fletcher’s intent to punish. Whether a

condition is reasonably related to a legitimate government

purpose is a negligence standard. Since Bell, the Supreme

Court has emphatically (and repeatedly) declared that “‘liabil-

ity for negligently inflicted harm is categorically beneath the

threshold of constitutional due process.” Lewis, 523 U. S. at

849. For these reasons, we hold that deliberate indifference

is the appropriate standard of culpability for all claims that

prison officials failed to provide pretrial detainees with ade-

quate food, clothing, shelter, medical care, and reasonable

safety.

Butler further argues that, even if deliberate indifference is

the appropriate standard of care, summary judgment was im-

properly granted because the record reveals a genuine issue of

material fact whether Sheriff Fletcher knew ADC inmates

faced a substantial risk of serious harm from TB and “dis-

regard{ed] that risk by failing to take reasonable measures to

abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). Once

again, Butler would have us fashion a negligence standard of

liability by taking Supreme Court language out of context.

Deliberate indifference has both an objective and a subjective

component. The objective component requires proof that

Butler was exposed to ADC inmates with active TB cases ina

manner that created an unreasonable risk of serious harm to

his health. See Helling v. McKinney, 509 U.S. 25, 35 (1993).

He presented sufficient evidence that he contracted TB at

ADC to survive summary judgment on this ground.

23a

The subjective component of deliberate indifference re-

quires proof that Fletcher “actually knew of and recklessly

disregarded” this substantial risk of serious harm. Pietrafeso,

452 F.3d at 983 (emphasis added); see Farmer, 511 US. at

837. In this case, Butler challenged health care policies adopt-

ed and implemented by the County. Those policies did not

disregard the risk of tuberculosis infection at ADC. To the

contrary, as the district court noted, the policies specifically

acknowledged the risk and promulgated detailed procedures

for the diagnosis, segregation, and treatment of ADC inmates

infected with active cases of TB. Butler asserted—with

virtually no supporting evidence—that the above-described

initial screening procedures were not implemented at ADC.

Even if true, that would be evidence that certain ADC staff

negligently, or even deliberately, failed to implement lawful

policies. It is not evidence that the policies themselves were

unconstitutional. Thus, the district court properly dismissed

this official capacity claim because the undisputed evidence

demonstrated that the County implemented policies address-

ing the serious health risk that TB poses to ADC detainees.

Sheriff Fletcher did not act with deliberate indifference to this

risk of harm, whether or not he might arguably have taken

other “reasonable measures to abate it.”

Hl.

Butler’s claims of procedural error require little discussion.

When the district court granted Fletcher’s motion for sum-

mary judgment, it denied Butler’s motion to compel addi-

tional discovery responses, namely, his medical records,

information about another detainee who allegedly tested posi-

tive for TB when transferred to prison the same day as Butler,

and information about the medical history of one of Butler’s

cellmates. The motion further asked the court to appoint

counsel and to extend the discovery deadline. We review the

denial of this motion for abuse of discretion. See Phillips

v. Jasper County Jail, 437 F.3d 791, 794-95 (8th Cir. 2006)

24a

(appointment of counsel); Life Plus Int’l v. Brown, 317 F.3d

799, 806-07 (8th Cir. 2003) (extending deadlines); Toghiyany

v. AmeriGas Propane, Inc., 309 F.3d 1088, 1093 (8th Cir.

2002) (compelling discovery). Although we do not agree with

the magistrate judge that the discovery requests were “largely

duplicative,” we do agree that they were “irrelevant” because

neither the information sought—nor the appointment of coun-

sel—could have overcome the undisputed evidence that Sheriff

Fletcher and the Ramsey County Public Health Department

promulgated policies and protocols that defeated Butler’s

official capacity claim as a matter of law. Thus, there was no

abuse of discretion.

Finally, we reject the contention in Butler’s pro se brief

that his right to procedural due process was violated because

he never received a copy of the magistrate judge’s Report and

Recommendation. He did not raise this issue in the district

court. Moreover, we appointed counsel to represent Butler on

appeal and have now reviewed de novo his challenge to the

grant of summary judgment despite the absence of an objec-

tion to the magistrate judge’s Report, a review our prior cases

expressly permit. See Taylor v. Farrier, 910 F.2d 518, 520

(8th Cir. 1990).

The judgment of the district court is affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.