JAIL LIABILITY ISSUES
I. Introduction ..................................................................................................................2
II. Essential Elements of§ 1983 Claims .........................................................................2
III. Conditions of Confinement ....................................................................................... 4
A. Introduction .............................................................................................................4
B. Overcrowding........................................................................................................ ll
C. Right of Access to Courts...................................................................................... 11
D. Inmate Mail ...........................................................................................................13
E. Appropriate Medical Care ..................................................................................... 16
F. Inmate Suicides......................................................................................................23
G. Freedom of Religion .............................................................................................28
H. Prison Discipline ...................................................................................................29
I. Prison Fights (Inmate on Inmate Violence)............................................................41
IV. Understanding Liability Issues and Reducing Liability Exposure..........................43
A. Individual Liability: Respondeat Superior Not Applicable (Supervisor Liability)
.....................................................................................................................................43
B. Difference Between Individual-capacity and Official-capacity Claims ...............46
C. Review Official Policies........................................................................................47
D. Avoiding Unconstitutional Custom or Practice Claims........................................47
1. Elements of a Custom or Practice Claim ............................................................48
a. How Frequency is a "Pattern"? ....................................................................48
b. Policy Can be Shown by Ignoring Complaints............................................49
E. Failure to Train/Hiring Decisions..........................................................................51
1. Introduction ........................................................................................................51
2. Training for "Common Sense"? ................................., .......................................52
F. Exhaustion of Available Remedies........................................................................55
1. Example of Grievance Policy ...................................., ........................................56
V. CONCLUSION .................................................................................................,......57
{00254489}
I. Introduction
Civil rights claims brought pursuant to 42 U.S.C. § 1983 represent one of the
largest segments of civil litigation in federal courts. These claims arise in an everincreasing variety of factual context, ranging from land use issues to interaction with law
enforcement personnel.
The purpose of these materials is to provide some insight to § 1983 litigation and
strategies with which to confront these claims. 1 This outline will focus on civil rights
claims made by inmates and pre-trial detainees against Jails.
Claims that an individual's constitutional rights and/or guarantees have been
violated can be brought pursuant to 42 U.S.C. § 1983. This statute does not provide or
create any independent constitutional rights. Instead, it merely provides a statutory
mechanism by which an individual can bring a claim. Graham v. Connor, 490 U.S. 386,
393-94 (1989) (§ 1983 "is not itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere conferred"). The statute, in its entirety,
provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.
II. Essential Elements of§ 1983 Claims
There are two and only two "elements" necessary to state a §1983 cause of action
1
These materials should not be utilized in making decisions in any particular case. Legal
issues/decisions involving litigation brought pursuant to 42 U.S.C. § 1983 and state tort
law are highly technical, fact specific, and subject to change with new case law and/or
legislative intervention. As a result, before making any decision with regard to any
specific case or claim, competent legal advice should be sought. Moreover, these
materials represent a compilation of various articles and other efforts of the author which
occurred over an extended period of time. Accordingly, some of the cases and
propositions cited herein may have been overturned or otherwise modified in significant
portions. As a result, before any case or material contained herein is relied upon or cited,
they should be independently analyzed to ensure they still represent valid propositions.
{00254489}
2
against an individual with regard a violation of a substantive right.2 "To state a claim
under § 1983, a plaintiff must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged deprivation was committed
by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). It
has also been stated, that a "§ 1983 plaintiff must prove the '(1) violation of a
constitutional right, (2) committed by a state actor, (3) who acted with the requisite
culpability and causation to violate the constitutional right.'"
Kuha v. City of
Minnetonka, 365 F.3d 590, 606 (8th Cir. 2003) quoting Shrum v. Kluck, 249 F.3d 773,
777 (8th Cir. 2001), overruled on other grounds Szabla v. City of Brooklyn Park, 486 F.3d
385 (8th Cir. 2007). A violation of a federal law is not sufficient; it must be a violation of
a federal "right." Blessing v. Freestone, 520 U.S. 329, 340 (1997) ("[i]n order to seek
redress through § 1983, however, a plaintiff must assert the violation of a federal right,
not merely a violation of federal law") (italics in original). It is also important to bear in
mind that § 1983 "'is not itself a source of substantive rights' but merely provides a
'method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490
U.S. 386, 393-94 (1989), quoting Baker v. McCollan, 443 U.S. 137, 144 n 3 (1979).
Without question, jail condition cases represent a significant number of the civil
rights claims which are pending in the federal court system. Typically, these claims are
filed prose. These cases take many forms, ranging from the "conditions-of-confinement"
allegations to failure to provide appropriate medical care.
2
When a § 1983 claim is advanced against a governmental entity, a third element is
required. That additional element requires the plaintiff to prove that the governmental
entity itself was the "moving force" behind the deprivation such that it would be proper to
impose liability on the municipality. See Polk County v. Dodson, 454 U.S. 312, 326
(1981) (quoting Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694
(1978). See also Leatherman v. Tarrant County Narcotics Intelligence and Coordination
Unit, 507 U.S. 163, 167 (1993) (stating that a municipality cannot be held liable under§
1983 "unless a municipal policy or custom caused the constitutional injury"). (See
generally, § II, infra.) Additionally, there are different elements involved when a
violation of procedural due process rights are alleged. More specifically, it has been
held:
To establish a procedural due process claim pursuant to § 1983, plaintiffs must
establish three elements: (1) that they have a life, liberty, or property interest
protected by the Due Process Clause of the Fourteenth Amendment to the United
States Constitution, (2) that they were deprived of this protected interest within
the meaning of the Due Process Clause, and (3) that the state did not afford them
adequate procedural rights prior to depriving them of their protected interest. See,
e.g., Zinermon v. Burch, 494 U.S. 113, 125-26 (1990).
Hahn v. State Bank, 190 F.3d 708, 716 (6th Cir. 1999) (cited approvingly in Vaughn v.
Ruoff, 304 F.3d 793, 796 (8th Cir. 2002).
{00254489}
3
III. Conditions of Confinement
A. Introduction
Federal courts are normally reluctant to interfere with matters of internal prison
administration. As the Supreme Court stated in Bell v. Wolfish, 441 U.S. 520, 527
(1979):
[T]he problems that arise in the day-to-day operation of a corrections
facility are not susceptible of easy solutions.
Prison administrators
therefore should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional
security.
However, such a policy of "judicial restraint" does not include ignoring prisoners'
valid constitutional claims. "When a prison regulation or practice offends a fundamental
constitutional guarantee, the federal courts will discharge their duty to protect
constitutional rights." Procunier v. Martinez, 416 U.S. 396,405-06 (1974).
In the setting of a prison, there must be a "mutual accommodation" between the
penal institution's legitimate needs and goals and the prisoner's retained constitutional
rights. Bell, 441 U.S. at 546.
"Lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system." Pel! v. Procunier, 417 U.S. 817, 822
(1974). In short, a prisoner loses only those rights that must be sacrificed to serve
legitimate penological needs. Pel!, 417 U.S. at 822. This necessarily involves a
balancing approach with the "legitimate penological needs" of the institution on the one
hand, and the inmates' constitutional rights on the other.
Often, plaintiffs will provide a "laundry list" of complaints with regard to their
incarceration in the local jail and allege that, when considered together, they amount to a
constitutional deprivation. The Supreme Court, however, as cautioned against these
types of amorphous "overall conditions" allegations.
Some conditions of confinement may establish an Eighth Amendment
violation "in combination" when each would not do so alone, but only
when they have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth, or exercise--for
example, a low cell temperature at night combined with a failure to issue
blankets. (citations omitted.) To say that some prison conditions may
interact in this fashion is a far cry from saying that all prison conditions
are a seamless web for Eighth Amendment purposes.
Nothing so
amorphous as "overall conditions" can rise to the level of cruel and
unusual punishment when no specific deprivation of a single human need
exists.
{00254489}
4
Wilson v. Seiter, 501 U.S. 294, 304-05 (1991) (emphasis in original).
Additionally, plaintiffs (and unsophisticated plaintiffs' attorneys) will often phrase
these claims as alleged violations of the Eighth Amendment's prohibition against "cruel
and unusual punishments."3 Technically, the Eighth Amendment is inapplicable to the
claims of pretrial detainees, for its protections apply only after an adjudication of guilt.
"Eighth Amendment scrutiny is appropriate only after the State has complied with the
constitutional guarantees traditionally associated with criminal prosecutions." Ingraham
v. Wright, 430 U.S. 651, 671 n. 40 (1977); Bell v. Wolfish, 441 U.S. 520, 535 n. 16
(1979). See also Jones v. Shields, 207 F.3d 491, 494-95 (8th Cir. 2000) ("[t]he Eighth
Amendment protects incarcerated prisoners from cruel and unusual punishment, and this
protection is grounded upon their right to be free from unnecessary and wanton infliction
of pain at the hands of correctional officers"). Instead, these claims (at least as they
pertain to pretrial detainees) are properly analyzed in the context of an alleged
deprivation of the Due Process Clause of the Fourteenth Amendment.4 Whitnack v.
Douglas County, 16 F.3d 954,957 (8th Cir. 1994).
However, this point is unimportant in litigating detainees/prisoner "condition-ofconfinement" claims, for the distinction between the Eighth and Fourteenth Amendment
is subject to the same analysis. For example, the Eighth Circuit has repeatedly held that
while a pretrial detainee's claim is analyzed under the Due Process Clause, a deliberate
indifference standard (the same standard to determine whether a violation of the Eighth
Amendment exists) is to be utilized in determining whether a constitutional deprivation
exists.5
3
The Eighth Amendment provides:
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
U.S. Const. amend. VIII.
4
The Due Process Clause of the Fourteenth Amendment states:"... nor shall any State
deprive any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, § 1.
5
In Farmer v. Brennan, 511 U.S. 825 (1994), the Court provided a detailed analysis of
the meaning/definition to be given to the term "deliberate indifference," as that term is
used in determining the existence of an 8th amendment claim. The Court held, inter alia:
We hold instead that a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk
to inmate health or safety; the 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. This approach comports best
with the text of the Amendment as our cases have interpreted it. The
Eighth Amendment does not outlaw cruel and unusual "conditions"; it
outlaws cruel and unusual "punishments."
An act or omission
unaccompanied by knowledge of a significant risk of harm might well be
{00254489}
5
This court has yet to settle on a clearly binding standard for pretrial
detainees. In Boswell v. Sherburne County, 849 F.2d 1117 (8th Cir. 1988),
we said "it is an open question whether the fourteenth amendment
provides pretrial detainees with a greater degree of protection." !d. at
1121. In Johnson-El v. Schoemehl, 878 F.2d 1043 (8th Cir. 1989), we said
the standard for pretrial detainees "is not yet clearly established" and that
"for the purpose of this appeal, we use the deliberate indifference
standard." !d. at 1055 n. 8. And in Davis, we said, "In the absence of a
clearly established standard . . . , we apply the deliberate indifference
standard." 992 F.2d at 153. Thus, the legal standard we apply to pretrial
detainee Whitnack's conditions-of-confinement claim is identical to the
legal standard we apply to the convicted Arellano's conditions-ofconfinement claim.
Whitnack, 16 F.3d at 957 (footnote omitted) (emphasis in original). More recently, the
Eighth Circuit has made it clear that "it is now settled 'that deliberate 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."' Hartsfield v. Colburn, 491 F.3d 394, 396 (8th Cir. 2007) quoting Butler v.
Fletcher, 465 F.3d 340, 345 (8th Cir. 2006), cert. denied_ U.S. _, 127 S.Ct. 2128
(2007). See also Hall v. Dalton, 34 F.3d 648, 650 (8th Cir. 1994) ("the standards applied
to Eighth Amendment and Fourteenth Amendment claims have been the same").
"Deliberate indifference is equivalent to the criminal law standard of recklessness
-'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."'
Hartsfield v. Colburn, 491 F.3d 394, 397 (8th Cir. 2007) quoting Bender v. Regier, 385
F.3d 1133, 1137 (8th Cir. 2004).
However, there are some occasions in which the status of the inmate (i.e.
convicted person vs. pretrial detainee) can be important. One such situation is in the
context of prison discipline (discussed in greater detail below). In the Eighth Circuit, a
person who has been convicted but is awaiting sentence is treated as a convicted person.
Whitnack v. Doughlas County, 16 F.3d 954, 957 (8th Cir. 1994) (stating that plaintiff who
had been convicted but was awaiting sentence would have his condition of confinement
claim analyzed under the Eighth Amendment). Similarly, the Fifth, Ninth and Tenth
Circuits have reached the same conclusion: individuals who have been convicted but are
awaiting imposition of punishment are to have their conditions of confinement claims
something society wishes to discourage, and if harm does result, society
might well wish to assure compensation. . . . But an official's failure to
alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.
Farmer, 511 U.S. at 837-38.
{00254489}
tl
analyzed under the Eighth Amendment. See Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir.
2004) ("[w]e hold that a prisoner who has been convicted but has not yet been sentenced
has the same status as a sentenced prisoner for purposes of analyzing whether the
prisoner has a liberty interest in having certain procedural protections apply before being
punished in connection with prison disciplinary proceedings'); Resnick v. Hayes, 213
F.3d 443, 448 (9th Cir. 2000) (holding that for purposes of analyzing whether the plaintiff
had a liberty interest in being free from confinement in the prison's SHU for 30 days, the
convicted but unsentenced prisoner should be treated as a sentenced inmate); Berry v.
Muskogee, 900 F.2d 1489, 1493 (loth Cir. 1990) (holding that convicted but not yet
sentenced prisoner should be treated as sentenced prisoner and have condition of
confinement claim analyzed under Eighth Amendment). However, a contrary result has
been reached in Fuentes v. Wagner, 206 F.3d 335, 341 (3rd Cir. 2000) (holding that a
convicted inmate awaiting sentencing has the status of a pretrial detainee); Cobb v. Aytch,
643 F.2d 946, 962 (3rd Cir. 1981) (holding the right to remain at liberty continued until
the pronouncement of sentencing).
Some examples of Jail Conditions which courts have concluded do not amount to
a constitutional deprivation:
.,...
Requiring pretrial detainees to perform general housekeeping chores to
clean up their individual cell area. Martinez v. Turner, 977 F.2d 421, 423
(8th Cir. 1992) cert. denied, 507 U.S. 1009, (1993); Bijeol v. Nelson, 579
F.2d 423, 425 (7th Cir. 1978). But see, Chestnut v. Magnusson, 942 F.2d
820, 823 (1st Cir. 1991) and McGinnis v. Royster, 410 U.S. 263 (1973),
requiring pretrial detainee to work or face placement in administrate
segregation is punishment.
The denial of a few meals does not rise to the level of an Eighth
Amendment violation. Bellamy v. Bradley, 729 F.2d 416, 419 (6th Cir.)
cert. denied 469 U.S. 845 (1984). See also Islam v. Jackson, 782 F.Supp.
1111, 1114 (E.D.Va. 1992) ("[m]issing one meal as an isolated event does
not deprive an inmate of basic nutritional needs")
.,...
Unanticipated boiler malfunctions. Wilson v. Seiter, 501 U.S. 294 (1991).
.,...
Foreign objects in prisoner meals. Wishon v. Gammon, 978 F.2d 446, 449
(8th Cir. 1992) (complaints that inmate Provided with food "often
contaminated with foreign objects" were insufficient to state constitutional
deprivation absent claim that food was "nutritionally inadequate or
prepared in a manner presenting an immediate danger to his health, or that
his health suffered as a result of the food").
Lack of unlimited access to television. Gladson v. Rice, 862 F.2d 711 (8th
Cir. 1988).
{00254489}
7
Lack of formal exercise program. Pippins v. Adams County Jail, 851
F.Supp. 1228, 1232-33 (C.D.Ill. 1994). See also, Harris v. Fleming, 839
F.2d 1232, 1236 (7th Cir. 1988) ("Unless extreme and prolonged, lack of
exercise is not equivalent to medically threatening situation"); Thomas v.
Ramos, 918 F.Supp. 228, 234-35 (N.D.Ill 1996) (lack of outdoor _exercise
or access to "yard" for 70 days did not amount to 8th Amendment
violation where alternative forms of exercise existed); Hosna v. Groose,
80 F.3d 298, 306 (8th Cir. 1996) (three hours of exercise per week in
enclosed area not constitutionally infirm; and "lack of exercise may be a
constitutional violation if one's muscles are allowed to atrophy or if an
inmate's health is threatened"; and where inmate chooses not to exercise,
that it his fault, not the prison officials).
Lack of reasonable safe showers. Pippins v. Adams County Jail, 851
F.Supp. 1228, 1233 (C.D.Ill. 1994)("lack of slip-resistant material on the
floor does not approach a deliberate exposure to an unreasonable risk of
harm.")
Lack of access to recreational reading materials. Pippins v. Adams County
Jail, 851 F.Supp. 1228, 1233 (C.D.Ill. 1994) (court is "aware of no
constitutional guarantee to unlimited pleasure reading, and Plaintiff was
not exposed to conditions amounting to sensory deprivation"); Counts v.
Newhart, 951 F.Supp. 579, 587 (E.D. Va 1996) ("The Constitution
contains no right of access to a general-literary library, nor is this Court
inclined to recognize such a right. The fact that [plaintiff] may want to
read a fictional literary work not available to him amounts to nothing more
than a simple annoyance and under no circumstances can it amount to
cruel and unusual punishment").
Lack of pillow and sheets. Pippins v. Adams County Jail, 851 F.Supp.
1228, 1233 (C.D.Ill. 1994). See also, Harris v. Fleming, 839 F.2d 1232,
1235 (7th Cir. 1988) ("prisons are not required to provide and prisoners
cannot expect to receive the services of a good hotel.")
Reasonable limitations on telephone usage. Moore v. Janing, 427 F.Supp.
567, 569 (D.Neb. 1976) (5-minute limitation on telephone usage not
actionable under § 1983.)
Short delay in distribution of mail. Odom v. Tripp, 575 F.Supp. 1491,
1493 (E.D.Mo. 1983) (weekend delay in mail distribution does not amount
to constitutional deprivation.)
Unlimited photocopies. Johnson v. Parke, 642 F.2d 377(10th Cir. 1987)
(constitutional concept of inmates' right to meaningful access to the courts
does not require prison officials to provide free or unlimited access to
{00254489}
8
photocopies) See also Lane v. Hutcheson, 794 F.Supp.
(E.D.Mo. 1992).
877, 883-84
Failure to provide notarial services. Lane v. Hutcheson, 794 F.Supp. 877,
883-84 (E.D.Mo. 1992) 457 F.Supp. 104 (C.D.Cal. 1978) (visitations
limited to 20 minutes is constitutionally acceptable). See also Harris v.
Murray, 761 F.Supp. 409, 412 (E.D.Va. 1990) ("neither prisoners nor
visitors have a constitutional right to prison visitation"). But see Smith v.
Bounds, 430 U.S. 817, 824-25 (1977) ("[i]t is indisputable that indigent
inmates must be provided at state expense with paper and pen to draft
legal documents with notarial services to authenticate them, and with
stamps to mail them. States must forgo collection of docket fees otherwise
payable to the treasury and expend funds for transcripts").
Payment of wages to inmates. Sigler v. Lowrie, 404 F.2d 659 (8th Cir.
1968) (no constitutional right for trusties to be paid for jail labor).
Examination by physician of inmate's choice. Gahagan v. Pennsylvania
Board of Probation and Parole, 444 F.Supp. 1326 (E.D.Pa. 1978) (no
clearly established right for inmate to be examined/treated by physician of
his own choice); United States v. Rovetuso, 768 F.2d 809, 825 (7th Cir.
1985), cert. denied, 474 U.S. 1076 (1986) (a prisoner has no right to a
doctor of his own choice); Brownlow v. Chavez, 871 F.Supp. 1061, 1064
(S.D.Ind. 1994) ("[t]he Eighth Amendment does not guarantee a prisoner's
choice of a physician, a mode of treatment or a place of treatment");
Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (Constitution "does not
guarantee to a prisoner the treatment of his choice").
Failure to provide hospital bed to pre-trial detainee who claimed to have a
hernia. Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D.Penn. 1992).
Lack of prison job and/or rehabilitation classes. Bowring v. Godwin, 551
F.2d 44, 48 n.2 (4th Cir. 1977) (no constitutional right to institutional job
or, in fact, to rehabilitation at all.)
One time denial of access to prison law library is not an unreasonable
restriction on access to courts and, therefore, does not state cause of action
under§ 1983. Muhammadv. Hilbert, 906 F.Supp. 267 (E.D.Pa. 1995).
...,..
An inmate has no right to view television as arising from the Constitution.
Gladson v. Rice, 862 F.2d 711, 713 (8th Cir. 1988); Temple v. Dahm, 905
F.Supp. 670, 674 (D.Neb. 1995).
...,..
There is no constitutional right to a typewriter as an incident to the right of
access to the courts. Taylor v. Coughlin, 29 F.3d 39, 40 (2nd Cir. 1994).
{00254489}
9
Failure to provide air conditioning where there are large circulation fans
which run continuously in hot weather. Lane v. Hutchenson, 794 F.Supp.
877, 884 (E.D.Mo. 1992);
..,_
Double-bunking. Bell v. Wolfish, 441 U.S. 520, 541 (1979);
..,_
"Publisher's-Only" Rule which provides a prohibition against receipt of
hardback books unless mailed directly from the publisher, book clubs, or
book stores does not violate the First Amendment. Bell v. Wolfish, 441
u.s. 520, 550-51 (1979);
Prohibitions against inmates/detainees from rece1vmg packages from
outside the facility containing items of food or personal property. Bell v.
Wolfish, 441 U.S. 520, 553-54 (1979);
Unannounced "shakedown" searches of inmates'/detainees' living areas
which inmates are not allowed to observe. Bell v. Wolfish, 441 U.S. 520,
556-57 (1979). Additionally, even in the fact of a Jail policy which
specifically states a pretrial detainee may be present during the search of
his legal papers, that does not create a liberty interests protected under the
Due Process Clause. Mitchell v. Dupnik, 75 F.3d 517, 522-23 (9th Cir.
1996);
Requiring inmates/detainees to expose their body cavities for visual
inspection as a part of a strip search conducted after every contact visit
with a person from outside the institution. Bell v. Wolfish, 441 U.S. 520,
558-60 (1979);
There is also support for the proposition that the use of "pain compliance"
holds - when used in a prison setting and in such a fashion that force was
not used simply in order to cause pain - may be reasonable and justified as
a reasonable method to insure institutional and officer safety in dealing
with an unruly inmate. Sheldon v. Pezley, 49 F.3d 1312 (8th Cir. 1995).
"Inmates cannot expect the amenities, conveniences and services of a
good hotel. ..." Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988).
The constitutional test requires courts to look to "the evolving standards of
decency that mark the progress of a maturing society."
Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). A plaintiff claiming a violation of
the Eighth Amendment must satisfy both an objective test (whether the
conditions can be considered cruel and unusual) and a subjective test
(whether the defendant acted with a culpable state of mind). Wilson v.
Seiter, 501 U.S.294, 298, 303 (1991).
{00254489}
10
Voluntary or consensual sexual encounter between inmate and jailer may not give
rise to any valid claim that plaintiffs constitutional rights have been violated
under Eighth Circuit precedent.
Without deciding at what point unwelcome sexual
advances become serious enough to constitute "pain," we
hold that, at the very least, welcome and voluntary sexual
interactions, no matter how inappropriate, cannot as a
matter of law constitute "pain" as contemplated by the
Eighth Amendment.
Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir. 1997). 6
However, there are certain areas in which the constitutional rights of inmates are
clear and cannot be unreasonably violated.
B. Overcrowding
Overcrowding has been on oft-cited problem in jails. However, there are
arguments which, in some circumstances, can be raised in order to avoid potential
liability of the Sheriff and his office. For example, in Houston v. Sheahan, 62 F.3d 902
(7th Cir. 1995), the court was faced with a claim that the Sheriff and jail warden were
liable because the jail was overcrowded. In rejecting this contention, the court held:
Neither the Sheriff nor the Warden designed the Jail; neither has the
ability to build a larger facility; neither controls the number of prisoners
assigned there. The county legislature is responsible for providing space;
the state judiciary determines how many prisoners to send; the Sheriff and
Warden are custodians, and they doubtless wish that they had more
resources. The cannot be called on to pay damages to Houston for the
consequences of other persons' decisions.
Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995), abrogated on other grounds by
Haley v. Gross, 86, F.3d 630 (7th Cir. 1996).
C. Right of Access to Courts
It is "well established beyond doubt that prisoners have a constitutional right of
access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977). To satisfy that right,
prison authorities must:
6
However, other courts have reached the exact opposite conclusion. For example, in
Carrigan v. Davis, 70 F. Supp. 448, 452-43 (D. Del. 1999):
[T]he Court concludes, as a matter of law, that an act of vaginal
intercourse and/or fellatio between a prison inmate and a prison guard,
whether consensual or not, is a per se violation of the Eighth Amendment.
{00254489}
11
assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate legal
assistance from persons trained in the law.
Bounds, 430 U.S. at 828 (footnote omitted) (emphasis added).
Subsequent to Bounds, the Supreme Court clarified the impact of that holding.
More specifically, in Lewis v. Casey, 518 U.S. 343 (1996), the Court made clear that in
order to make out a viable Bounds claim, a plaintiff must prove actual injury. In fact, the
Court determined that a plaintiff who fails to make such a showing lacks standing to
present such a claim.
The requirement that an inmate alleging a violation of Bounds must show
actual injury derives ultimately from the doctrine of standing, a
constitutional principle that prevents courts of law from undertaking tasks
assigned to the political branches.
* * *
Insofar as the right vindicated by Bounds is concerned, "meaningful
access to the courts is the touchstone," Bounds, 430 U.S. at 823 (internal
quotation marks omitted), and the inmate therefore must go one step
further and demonstrate that the alleged shortcomings in the library or
legal assistance program hindered his efforts to pursue a legal claim. He
might show, for example, that a complaint he prepared was dismissed for
failure to satisfy some technical requirement which, because of
deficiencies in the prison's legal assistance facilities, he could not have
know. Or that he had suffered arguably actionable harm that he wished to
bring before the courts, but was so stymied by inadequacies of the law
library that he was unable even to file a complaint.
Lewis, 518 U.S. at 349, 351.
Additionally, Lewis is also important in that it provided the first description by the Court
as to the type of law library that a prison/jail needed to provide.
In other words, Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing everything
from shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to attack
their sentences, directly or collaterally, and in order to challenge the
conditions of their confinement.
Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.
{00254489}
12
Lewis, 518 U.S. at 355.
Additionally, there is no constitutional right to a typewriter as an incident to the
right of access to the courts. Taylor v. Coughlin, 29 F.3d 39, 40 (2nd Cir. 1994). Taylor
also supports and stands for the proposition that a 23-day period of confinement in
segregation is insufficient to support a lack of access claim.
D. Inmate Mail
In Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974), the Supreme Court
considered the question of incoming legal mail and concluded:
[T]he question is whether, assuming some constitutional right is
implicated, it is infringed by the procedure now found acceptable by the
State.... [W]e think that [the prison officials], by acceding to a rule
whereby the inmate is present when mail from attorneys is inspected, have
done all, and perhaps even more, than the Constitution requires.
In Gardner v. Howard, 109 F.3d 427 (8th Cir. 1997), the court was faced with a
situation in which, inter alia, there had been occasional mistakes made in the opening of
"legal mail" by prison officials.
Here, defendants' undisputed affidavits establish the relevant policy of the
Nebraska Department of Correctional Services. Properly marked legal
mail is opened only in the presence of the inmate. When such mail is
received, mailroom staff attach a Confidential Mail Receipt Form to the
envelope, and a prison official delivers it to the inmate where it is opened
and inspected for contraband in his presence. All other mail is opened in
the mailroom by a slitting machine and inspected for contraband. As our
decision in Harrod v. Halford, 773 F.2d 234, 235-36 (8th Cir. 1985), cert.
denied, 476 U.S. 1143 (1986), makes clear, the Department's policy meets
or exceeds the minimum constitutional standards under Wolff
Given
defendants' proof of a general policy that meets constitutional
requirements, the qualified immunity issue turns on the specific incidents
in question and must be addressed separately for each defendant.
See
Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir. 1993).
* * *
Mail Clerk Howard. Howard violated Department policy by inadvertently
opening an envelope containing Gardner's incoming legal mail. Gardner
was upset that Dahm did no punish Howard through the grievance process
for her error. But there is no § 1983 liability for violating prison policy.
Gardner must prove that Howard violated his constitutional right to
receive mail or access to the courts.
{00254489}
13
In Jenson v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981), this court cited
Woljffor a broad proposition: "Privileged prisoner mail, that is mail to or
from an inmate's attorney and identified as such, may not be opened for
inspections for contraband except in the presence of the prisoner."
However, the record in Jenson included evidence of deliberate, repeated
opening of an inmate's confidential, well-marked attorney mail. We have
never held or suggested that an isolated, inadvertent instance of opening
incoming confidential legal mail will support a § 1983 damage action.
Rather, we agree with other circuits that an "isolated incident, without any
evidence of improper motive or resulting interference with [the inmate's]
right to counsel or to access to the courts, does not give rise to a
constitutional violation." Smith v. Maschner, 899 F.2d 940, 944 (lOth Cir.
1990); see Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2nd Cir. 1975),
cert. denied, 424 U.S. 973 (1976).
The act of opening incoming mail does not injure an inmate's right to
access the courts. The policy that incoming confidential legal mail should
be opened in inmates' presence instead serves the prophylactic purpose of
assuring them that confidential attorney-client mail has not been
improperly read in the guise of searching for contraband. See Harrod (v.
Halford, 773 F.2d 234, 235 (8th Cir. 1985), cert. denied 476 U.S. 1143
(1986)); Morgan, 516 F.2d at 1371. Given this limited purpose,
inadvertent opening of legal mail cannot be actionable under § 1983,
particularly when it is followed by the corrective action Howard took after
she opened Gardner's envelope on March 1, because "[t]o assert a
successful claim for denial of meaningful access to the courts . . . an
inmate must demonstrate that he suffered prejudice." Berdella v. Delo,
972 F.2d 204, 210 (8th Cir. 1992).
Gardner, 109 F.3d at 430-431.
In Harrod v. Halford 773 F.2d 234 (8th Cir. 1985), plaintiff claimed prison
officials improperly opened outside of his presence several pieces of mail addressed to
him. The mail policy of the institution states that general mail will be opened outside the
inmate's presence and searched for contraband, but will not be read. Letters from
designated sources (legal mail), such as attorneys, courts and government officials, which
are marked confidential, attorney/client privilege, or with some similar marking, are
opened only in the presence of the inmate, but again are not ready by jail officials.
Harrod, 773 F.2d at 235. The letters at issue in this case were:
1.
2.
3.
4.
5.
6.
{00254489}
Eight pieces of mail from the clerk of the district court,
One from a district judge,
Four from a magistrate,
One from the United States Department of Justice,
Three from the Lancaster Corrections Department,
One from the Bureau of Community Correctional services, and;
14
7.
Five from a law firm.
Each letter was clearly marked with a return address from a legal source, but none was
stamped confidential. The communications from federal court officials were mailed in
franked envelopes which under the respective return addresses bore in small print the
legend "Official Business-- Penalty for Private Use $300." Harrod, 773 F.2d at 235
The Eight Circuit held the jail's policy was "well within" the scope of the
constitution as set forth in Woljfv. McDonnell. Harrod, 773 F.2d at 235.
Although the letters in the present case are distinguishable because they
are clearly marked as being from attorneys or courts, and were addressed
to a named inmate, Jensen nevertheless demonstrates that the mere fact
that a letter comes from a legal source is insufficient to indicate that it is
confidential and requires special treatment.
Harrod, 773 F.2d at 236.7
Inmates have a procedural due process right in connection with rejected letters
and packages. Specifically, in the event correspondence or a package is rejected, the
inmate should be advised of the rejection and given the opportunity to protest that
decision. See Bonner v. Outlaw, 552 F.3d 673, 677 (8th Cir. 2009) ("Thus, whenever
prison officials restrict [the right to receive mail, packages, newspapers, etc.] by rejecting
the communication, they must provide minimum procedural safeguards, which include
notice to an inmate that the correspondence was rejected"). See also Procunier v.
Martinez, 416 U.S. 396, 417 ("the decision to censor or withhold delivery of a particular
letter must be accompanied by minimum procedural safeguards") overruled on other
grounds by Thornburgh v. Abott, 490 U.S. 401 (1989).
The Eighth Circuit has also had occasion to consider a prison's "English Only"
rule concerning mail.
7
Nevertheless, despite this holding, the Eighth Circuit strongly suggested in a footnote
that the administration might want to reconsider its policy.
While we have not seen fit on the record now before us to strike down on
constitutional grounds the present mail policy of the defendants, we
observe that administration of the policy produces errors, and that for
practical administrative reasons as well as future constitutional safeguards
the defendants may wish to consider whether, absent unusual
circumstances, incoming mail marked as "Official Business" from a
federal or state court or envelopes bearing the return address of a court
clerk or judicial officers should only be opened for contraband inspection,
assuming other means to inspect the contents of sealed envelopes is
unavailable.
Harrod, 773 F.2d at 236 n. 1.
{00254489}
15
We begin our analysis of the "English only" policy by acknowledging the
delicate balance required to weigh the constitutional rights of inmates
against legitimate regulations imposed by those charged with the
"inordinately difficult task of operating a prison." (Citation omitted.) It is
settled that convicted persons "do not forfeit all constitutional protections
by reason of their conviction and confinement in prison."
(Citation
omitted.)
"Inmates clearly retain protections afforded by the First
Amendment." (Citation omitted.) This includes the right to send and
receive mail. (Citations omitted.) Conversely, prison officials have a duty
to maintain security within the prison, and this may include reading
inmates' incoming and outgoing mail, with the exception of legal mail.
We have previously held that claims involving inmate mail -- both
incoming and outgoing -- must be measured against the standard set out in
Turner. Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993). The resolution
turns on this question: Is the regulation reasonably related to a legitimate
penological interest?
The Turner Court listed four factors to be
considered: (1) whether there is a valid rational connection between the
regulation and the legitimate government interest it purports to further; (2)
whether the inmate has an alternative means of exercising his
constitutional right; (3) the impact that accommodation of the inmate's
right would have upon other inmates; and (4) the absence of a ready
alternative to the regulation.
Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994). Given the facts ofthe case
(including that Spanish and German inmates were afforded the opportunity to
communicate in their native languages), the 8th Circuit sustained a $4,000 verdict against
defendants for enforcing an "English only" rule and prohibiting the inmate from
receiving mail written in Lao.
E. Appropriate Medical Care
To support a viable§ 1983 claim that medical care was not provided, the plaintiff
"must show that [defendants] were deliberately indifferent to his serious medical needs."
Johnson v. Hamilton, 452 F.3d 967, 972 (8th Cir. 2006). See also Camberos v. Branstad,
73 F.3d 174, 175 (8th Cir. 1995). The 8th Circuit has affirmatively stated that deliberate
indifference is the appropriate standard by which pretrial detainees denial of medical
treatment claims should be considered. "Deliberate indifference to an inmate's serious
medical needs violates the Eighth Amendment as applied to the States by the Fourteenth
Amendment. [Plaintiff] was a pretrial detainee at the time in question, but it is now
settled 'that deliberate 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."' Hartsfield v. Colburn, 491 F.3d 394, 396
(8th Cir. 2007) quoting Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006), cert. denied,
127 S.Ct. 2128 (2007).
{00254489}
16
A prison official's deliberate indifference to a prisoner's serious medical
needs constitutes cruel and unusual punishment in violation of the Eighth
Amendment. Alberson v. Norris, 458 F.3d 762, 765-66 (8th Cir. 2006). A
prima facie case alleging deliberate indifference requires the inmateplaintiff to demonstrate that she suffered from an objectively serious
medical need and the "prison officials actually knew of but deliberately
disregarded" that need. Id. Medical malpractice alone, however, is not
actionable under the Eighth Amendment. Smith [v. Clarke, 458 F.3d 720,
724 (8th Cir. 2006)]. For a claim of deliberate indifference, "the prisoner
must show more than negligence, more even than gross negligence, and
mere disagreement with treatment decisions does not rise to the level of a
constitutional violation." Estate of Rosenberg v. Crandell, 56 F.3d 35, 37
(8th Cir. 1995). Deliberate indifference is akin to criminal recklessness,
which demands more than negligent misconduct. Olson v. Bloomberg, 339
F.3d 730, 736 (8th Cir. 2003).
Popoalii v. Correctional Medical Services, 512 F.3d 488, 499 (8th Cir. 2008)
"To show deliberate indifference, [plaintiff] must demonstrate that he suffered
objectively serious medical needs, and the officials actually knew of but deliberately
disregarded those needs." Johnson v. Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006).
See also Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) ("the failure to treat a medical
condition does not constitute punishment within the meaning of the Eighth Amendment
unless prison officials knew that the condition created an excessive risk to the inmate's
health and then failed to act on that knowledge"); Dulany v. Carnahan, 132 F.3d 1234,
1239 (8th Cir 1997) ("Deliberate indifference may be demonstrated by prison guards who
intentionally deny or delay access to medical care or intentionally interfere with
prescribed treatment, or by prison doctors who fail to respond to prisoner's serious
medical needs. Mere negligence or medical malpractice, however, are insufficient to rise
to a constitutional violation") citing Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
"Deliberate indifference is equivalent to the criminal law standard of recklessness - '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."'
Hartsfield v. Colburn, 491 F.3d 394, 397 (8th Cir. 2007) quoting Bender v. Regier, 385
F.3d 1133, 1137 (8th Cir. 2004)
The "deliberate indifference" test is also applicable to lack of medical care claims
asserted by inmates/detainees.8 In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme
Court held that in order to state a cognizable deliberate indifference claim a prisoner must
demonstrate "acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs." Id., at 106. The Supreme Court has also stated:
[W]e see no significant distinction between claims alleging inadequate
8
The definition of "deliberate indifference" was discussed and explained in Farmer v.
Brennan, a case which was discussed, supra.
{00254489}
17
medical care and those alleging inadequate "conditions of confinement."
Indeed, the medical care a prisoner receives is just as much a "condition"
of his confinement as the food he is fed, the clothes he is issued, the
temperature he is subjected to in his cell, and the protection he is afforded
against other inmates. There is no indication that, as a general matter, the
actions of prison officials with respect to these nonmedical conditions are
taken under materially different constraints than their actions with respect
to medical conditions. Thus, as retired Justice Powell has concluded:
"Whether one characterizes the treatment received by [the prisoner] as
inhumane conditions of confinement, failure to attend to his medical
needs, or a combination of both, it is appropriate to apply the 'deliberate
indifference' standard articulated in Estelle."
Wilson v. Seiter, 501 U.S. 294, 303 (1991) (quoting LaFaut v. Smith, 834 F.2d 389, 39192 (4th Cir. 1987)). See also Helling v. McKinney, 509 U.S. 25 (1993) (same); Martinez
v. Turner, 977 F.2d 421, 423 (8th Cir. 1992), cert. den'd 507 U.S. 1009 (1993) (pretrial
detainee must demonstrate officials "were deliberately indifferent to his serious medical
needs").
However, a mere disagreement by the inmate/detainee with the course of his
treatment will not be sufficient to raise to the level of a constitutional deprivation. Such a
disagreement concerning the course or type of treatment "is not sufficient to state a claim
for deliberate indifference to medical needs." Davis v. Hall, 992 F.2d 151, 153 (8th Cir.
1993). See also Martinez, 977 F.2d at 423 (pretrial detainee's "disagreement with the
course of medical treatment does not give rise to a constitutional claim"); Martin v.
Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985) (disagreement with medical treatment
"does not constitute a constitutional violation"). It has also been stated that the "Eighth
Amendment does not guarantee a prisoner's choice of a physician, a mode of treatment or
a place of treatment (citation omitted), not does or could it guarantee a particular outcome
or level of comfort in the face of physical maladies." Brownlow v. Chavez, 871 F.Supp.
1061, 1064 (S.D. Ind. 1994).
Also, there is authority supporting the proposition that an inmate cannot try and
defeat summary judgment by claiming he didn't receive medical care when the medical
records (and/or affidavits from Health Care Professionals) demonstrate otherwise. "In
the face of medical records indicating that treatment was provided and physician
affidavits indicating that the care provided was adequate, an inmate cannot create a
question of fact by merely stating that [he] did not feel [he] received adequate treatment."
Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997). See also Meuir v. Green
County Jail Employees, 487 F.3d 1115, 1119 (8th Cir. 2007) (holding that in face of
medical staff defendants who provided affidavits from a dentist and doctor attesting that
treatment provided by Jail's medical staff was adequate could not be maintained where
plaintiff produced neither expert testimony nor documentary evidence to support his
claim of unconstitutional medical attention). Similarly, "[w]here the complaint involves
treatment of a prisoner's sophisticated medical condition, expert testimony is required to
show proof of causation." Alberson v. Norris,_ F.3d _,_(8th Cir. 2006) (Appeal
{00254489}
18
No. 06-1534, issued 8/15/06) citing Gibson v. Weber, 433 F.3d 642, 646 (8th Cir. 2006).
For example, the 8th Circuit has previously held that a stroke is a serious condition
requiring expert medical testimony to show a causal link. Robinson v. Hager, 292 F.3d
560, 564 (8th Cir. 2002) ("although a person suffering from a stroke may exhibit visible
symptoms, the stroke itself is a sophisticated injury which could be caused by numerous
factors other than lack of medication. Therefore, expert medical testimony is needed to
prove causation").
Also, when a plaintiff alleges "that the delay in treatment is the constitutional
deprivation, the objective seriousness of the deprivation should also be measured by
reference to the effect of the delay in treatment." Crowley v. Hedgepeth, 109 F.3d 500,
502 (8th Cir. 1997). The Eighth Circuit requires a plaintiff who complains that a delay in
medical treatment gave rise to a constitutional violation "to place verifying medical
evidence in the record to establish the detrimental effect of delay in medical treatment."
Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) quoting Crowley, 109 F.3d at 502;
See also Beyerbach v. Sears, 49 F.3d 1324, 1327 (8th Cir. 1995) (plaintiffs failure to
present verifying medical evidence constituted a failure to establish the objective
component of the standard); Coleman v. City of Pagedale, 2008 WL 161897 at *6
(E.D.Mo., Case No. 4:06CV01376ERW, Jan. 15, 2008) ("for a claim of delay in medical
treatment to succeed, a plaintiff must introduce evidence to establish that the delay had a
detrimental effect"). Also, the Eighth Circuit has stated, "Intentional delay in providing
medical treatment shows deliberate disregard if a reasonable person would know that the
inmate requires medical attention or the actions of the officers are so dangerous that a
knowledge of the risk may be presumed." Gordon ex rel. Gordon v. Frank, 454 F.3d 858,
862 (8th Cir. 2006).
The Eighth Circuit has "repeatedly held that a supervisor cannot be held liable for
an eighth amendment violation if he or she is neither aware of the conduct nor
'personally involved in the violation."' Smith v. Clarke, 458 F.3d 720, 723 (8th Cir.
2006) citing Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002) and Camberos v.
Branstad, 73 F.3d 174, 176 (8th Cir. 1995).
The Eighth Circuit Court of Appeals has defined a "serious medical need as 'one
that has been diagnosed by a physician as requiring treatment, or one that is so obvious
that even a layperson would easily recognize the necessity for a doctor's attention."
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995), citing Johnson v. Busby, 953
F.2d 349, 351 (8th Cir. 1991) (upholding jury instruction that used this language).
Additionally, the 8th Circuit stated:
The district court acknowledged that under Ouztx v. Cummins, 825 F.2d
1276, 1277 (8th Cir. 1987), a general responsibility for supervising the
operations of a prison is insufficient to establish the personal involvement
required to support liability. Moreover, because Burt and Ault lacked
medical expertise, they cannot be liable for the medical staffs diagnostic
decision not to refer Camberos to a doctor to treat his shoulder injury. See
Crooks v. Nix, 872 F.2d 800, 803 (8th Cir. 1989).
{00254489}
19
Camberos, 73 F.3d at 176. See also Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir.
2002) (holding that law was not clearly established that prison supervisor could not rely
on medical judgment made by person trained in medical profession and, therefore,
qualified immunity defense was viable).
A prison official may rely on a medical professional's opinion if such
reliance is reasonable. Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir.
2002) ("The law does not clearly require an administrator with less
medical training to second-guess or disregard a treating physician's
treatment decision."); see also Johnson v. Doughty, 433 F.3d 1001, 1010
(7th Cir. 2006) ("Except in the unusual case where it would be evident to a
layperson that a prisoner is receiving inadequate or inappropriate
treatment, prison officials may reasonably rely on the judgment of medical
professionals.") (citation omitted).
McRaven v. Sanders,_ F.3d. _,_(8th Cir. 2009).
"Whether a prison's medical staff deliberately disregarded the needs of an inmate
is a factually-intensive inquiry. (Citations omitted.) The plaintiff-inmate must clear a
substantial evidentiary threshold to show that the prison's medical staff deliberately
disregarded the inmate's needs by administering an inadequate treatment. (Citation
omitted.) '[A] prisoner's mere difference of opinion over matters of expert medical
judgment or a course of medical treatment fail[s] to rise to the level of a constitutional
violation."' Meuir v. Green County Jail Employees, 487 F.3d 1115, 1118 (8th Cir. 2007).
Plaintiff must, however, at least establish that the medical professional (or other Jail Staff
member) was aware of the problem - otherwise, the deliberate indifference standard
cannot be satisfied. Smith v. Clarke, 458 F.3d 720, 724 (81h Cir. 2006) ("[w]ithout
evidence that Dr. Colerick was aware of facts from which the inference of the tumor's
existence could be drawn and that he drew that inference (citations omitted), the district
court correctly granted Dr. Colreick summary judgment on Mr. Smith's constitutional
claim").
Potential emerging area: exposure to "second-hand smoke." Recently, in Helling
v. McKinney, 509 U.S. 25 (1993), the Supreme Court opened the door to claims by
inmates that their health had been impaired by exposure to "environmental tobacco
smoke" ("ETS") while incarcerated. The Court stated it could not "hold that prison
officials may be deliberately indifferent to the exposure of inmates to a serious,
communicable disease on the ground that the complaining inmate shows no serious
current symptoms." Helling, 509 U.S. at 33.
There is case law supporting the proposition that it is not unconstitutional to
charge inmates for the actual costs of the medical care/services provided to them.
Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 418 (3rd Cir. 2000) ("[i]f
a prisoner is able to pay for medical care, requiring such payment is not deliberate
indifference to serious medical needs") quoting Reynolds v. Wagner, 129 F.3d 166, 174
{00254489}
20
(3rd Cir. 1997); Martin v. DeBruyn, 880 F. Supp. 610,615 (N.D. Ind. 1995) ("[t]he Eighth
Amendment guarantees only that states will not ignore an inmate's serious medical
needs; it does not guarantee free medical care"); Bihms v. Klevenhagen, 928 F. Supp.
717, 718 (S.D. Tx. 1996) ("[i]f the inmate can pay for his medical care, then the state
may require reimbursement"). See also, City of Revere v. Massachusetts General
Hospital, 463 U.S. 239, 245, n. 7 (1983) ("[n]othing we say here affects any right a
hospital or governmental entity may have to recover from a detainee the cost of the
medical services provided to him").9
It is also possible for inmates to assert a procedural due process challenge to the
removal of their funds to pay for housing expenses. The Eighth Circuit has recognized
that prisoners have a property interest in money received from outside sources. Mahers
v. Halford, 76 F.3d 951, 954 (8th Cir. 1996) cert. denied 519 U.S. 1061 (1997). The
question then becomes what process is due before the money in Patterson's Inmate
Account can be applied to the charges he incurred for his medical care. In answering this
question, a court is to consider three factors:
1.
The private interest that will be affected by the official action;
2.
The risk of an erroneous deprivation of such interest through the
procedures used, and the probable value of additional or substitute
procedures; and
3.
The government's interest, including the function involved and the
physical and administrative burdens that the additional or substitute
procedural requirement would entail.
Mahers, 76 F.3d at 954; Murray v. Dosal, 150 F.3d 814, 819 (8th Cir. 1998).
In Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 418 (3rd Cir.
2000), the inmate/plaintiff was assessed a $10.00 daily charge for his confinement in a
County Jail. The $10.00 fee was legislatively authorized, 10 and the Jail had a grievance
procedure through which Inmate Tillman could complain about the deductions from his
inmate account. Moreover, Inmate Tillman was aware that the charges would be made.
9
Missouri has a statute which provides that the inmate is responsible for the cost of
health care, including medicine, R.S.Mo. § 221.120.
10
Similarly, Missouri legislature has authorized counties to collect from the inmates the
costs ofthe medical care provided to them. See R.S.Mo. § 221.120.1. This statute
provides, inter alia:
If the prisoner is not eligible for such health insurance benefits then the
prisoner shall be liable for the payment of such medical attention, dental
care, or medicine, and the assets of such prisoner may be subject to levy
and execution under court order to satisfy such expenses in accordance
with the provisions of section 221.070, and any other applicable law.
{00254489}
21
Tillman, 221 F.3d at 414-15.
After examining the appropriate three factors to determine what amount of
process was due, the Tillman court held no due process claim existed.
It is impractical to expect the prison to provide predeprivation proceedings
under these circumstances.
As the takings and assessments pass
substantive constitutional muster, we only need ask whether the attendant
procedure is also constitutionally adequate. It is. The assessments and
takings pursuant to the program involve routine matters of accounting,
with a low risk of error. To the extent that mistakes such as erroneous
assessments or incorrect takings might occur, they may be corrected
through the prison's grievance program without any undue burden on a
prisoner's rights. On the other hand, to require predeprivation proceedings
for what are essentially ministerial matters would significantly increase
transaction costs and essentially frustrate an important purpose of the
program, which is to reduce the county's costs of incarcerating prisoners.
The plaintiff had adequate notice of the grievance program and of the Cost
Recovery Program. Upon confinement in January of 1997, notice of the
Cost Recovery Program and a copy of it were still posted in the plaintiffs
cell block. Also, Tillman was given a handbook, which described the
prison grievance procedure. When the handbook was updated to include
the Cost Recovery Program and an expanded grievance procedure, the
plaintiff was given a copy of that as well. He was given an additional
copy of the handbook upon reconfinement in October of 1997. The
grievance program allowed prisoners to complain about "any" matter that
is "unjust" and as updated, also provided for direct appeal to the warden.
In sum, the plaintiff had an adequate post-deprivation remedy in the
grievance program.
Tillman, 221 F.3d at 422 (footnote omitted).
1. EXAMPLES
..,_
"An officer trained in CPR, who fails to perform it on a prisoner manifestly in
need of such assistance, is liable under § 1983 for deliberate indifference." McRaven v.
Sanders, _ F.3d. _, _ (81h Cir. 2009) citing Tlamka v. Serre!!, 244 F.3d 628, 633
(8th Cir. 2001).
"Untreated schizophrenia can in some instances constitute a serious medical need.
See, e.g., Evans v. Busman, No. 08-703, 2008 WL 2223281, at *4 n. 8 (E.D.La, May 23,
2008) (citing Johnson v. Hennessey, No. C-9•1-04873, 2000 WL 1006537, at *2
(N.D.Cal. July 11, 2000); Mark v. Imberg, No. 05-C-279-C, 2005 WL 1587797, at *9
(W.D.Wis. July 6, 2005)." Stevens v. City of St. Louis, No. 4:10CV951 JCH, 2012 WS
1906362 at*11 (E.D. Mo., May 25, 2012).
{00254489}
22
"The general assertion that jail officials should have monitored a mentally ill or
potentially mentally ill inmate more closely is insufficient to prove a constitutional
violation. See Rice v. Correctional Medical Services, 675 F.3d 650, 684-85 (7th Cir.
2012) (although treating physician and other medical professionals could have done more
to monitor mentally ill pretrial detainee's condition and could have tried sooner and more
forcefully to have his schizophrenia treated involuntarily, and although a factfinder could
find that treating physician breached duty of care owed to detainee by failing to do more
to monitor and treat detainee's mental illness, physician's treatment decisions were not
deliberately indifferent to detainee's serious medical needs); Taplet v. Brooks, 432 Fed.
Appx. 697, 697-98 (9th Cir. 2011) (prison officials were not deliberately indifferent by
failing to diagnose inmate with schizophrenia and prescribe appropriate treatment)."
Stevens v. City of St. Louis, No. 4:10CV951 JCH, 2012 WS 1906362 at *12 (E.D. Mo.,
May 25, 2012).
"Intentional delay in providing medical treatment shows deliberate disregard if a
reasonable person would know that the inmate requires medical attention or the actions of
the officers are so dangerous that a knowledge of the risk may be presumed." McRaven
v. Sanders, 577 F.3d 974, 980 (8th Cir. 2009) quoting Gordon ex rel. Gordon v. Frank,
454 F.3d 858, 862 (8th Cir. 2006).
"A prison official may rely on a medical professional's opinion if such reliance is
reasonable." McRaven v. Sanders, 577 F.3d 974, 981 (8th Cir. 2009)
Inmate who refused to comply with prison staffs recommendation as to medical
care "failed to present a triable issue of fact evidencing a violation of his Eighth
Amendment rights." Beck v. Skon, 253 F.3d 330, 334 (8th Cir. 2001)
Arrestee who refused medical treatment (i.e., transportation to hospital) cannot
claim deliberate indifference to serious medical need. Carpenter v. Gage, 686 F.3d 644,
651 (8th Cir. 2012). "Where the medical professionals either acquiesced in [plaintiffs]
refusal of medical treatment, or, under [plaintiffs] own version, never even suggested
that treatment was warranted, there is insufficient evidence that a need for medical
treatment was so obvious that the sheriffs depouties exhibited deliberate indifference by
taking [plaintiff] to jail").
Prison physicial who refused to operate on inmate unless inmate first released all
potential claims could be sued for constitutional deprivation of inmate's Eighth
Amendment rights. Beck v. Skon, 253 F.3d 330, 334 (8th Cir. 2001) ("if prison officials
indeed conditioned a necessary medical procedure on [plaintiffs] release of liability,
their action could establish a deliberate indifference to [inmate's] Eighth Amendment
rights to basick medical care").
F. Inmate Suicides
{00254489}
23
Closely related to the constitutional right of access to appropriate medical care is
the issue concerning jail suicides. As mentioned above, the right to be free from
deliberate indifference to a serious medical need was established in Estelle v. Gamble,
429 U.S. 97 (1976). "Generally, the deliberate indifference issue in inmate suicide cases
arises under one of two broad fact situations. First is a suicide or attempt that occurs
when jailers fail to discover the decedent's suicidal tendencies. Second is a suicide or
attempt that occurs when jailers have discovered the tendencies and have taken
preventative measures. The legal inquiry is the same in both sets of cases: whether the
jailers were deliberately indifferent to the risk of suicide." Bell v. Stigers, 937 F.2d 1340,
1343 (8th Cir. 1991) quoting Rellergert ex re. Rellergert v. Cape Girardeau County, Mo.,
924 F.2d 794, 796 (8th Cir. 1991).
In Colburn v. Upper Darby Township, 946 F.2d 1017 (3rd Cir. 1991) the court
set forth the following elements of deliberate indifference in the jail suicide context.
..,..
Plaintiff must show detainee "had a particular vulnerability to suicide."
Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990) (strong
likelihood, rather than a mere possibility that self infliction of harm will
occur.)
Officer knew, or "should have known" of this vulnerability. This is not a
negligence standard. Plaintiff must show actions by victim that were "so
obvious a law person would easily recognize the need for preventative
action." This includes actions such as a serious suicide threat, a history of
attempts, or a psychiatric diagnosis. Hall v. Ryan, 957 F.2d 402 (6th Cir.
1992) (odd behavior may be sufficient.)
Deliberate indifference to the detainee's particular vulnerability.
Generally, some preventative action in the face of a suicide threat will
establish the lack of deliberate indifference. Even if measures were
inadequate or insufficient to prevent the suicide, courts will frequently
conclude that the failure to prevent the suicide was a result of negligence,
not deliberate indifference, and dismiss the case. Belcher v. Oliver, 898
F.2d 32 (4th Cir. 1990) (Failure to remove detainee's belt and shoelaces
not deliberate indifference); Hamlin v. Kennebec County Sheriffs Dep't,
728 F.Supp. 804 (D.Me. 1990) (Failure to remove bootlaces mere
negligence.)
Allegations that officials failed to prevent jail suicides in violation of federal law
are treated "as claims for failure to provide adequate medical treatment." Drake v. Koss,
445 F.3d 1038, 1042 (8th Cir. 2006). Deliberate indifference is the barometer by which
such claims are tested. Id
"To find a prison official liable for showing deliberate
indifference, we require the plaintiff to show that the official actually knew that the
inmate faced a substantial risk of serious harm and failed to respond reasonably to abate
that risk. Deliberate indifference is akin to criminal recklessness and requires something
{00254489}
24
more than mere negligent misconduct." !d. "To establish a constitutional violation, it is
not enough that a reasonable official should have known of the risk, a plaintiff must
establish that the official in question did in fact know of the risk." Gregoire v. Class, 236
F.3d 413, 418 (8th Cir. 2000). "However, this knowledge is subject to proff by all the
usual ways, including inferences based on the obviousness of the risk." !d. And to
"determine whether [the official] could have reasonably believed his actions did not
violate [the inmate's] Eighth Amendment rights, we must first determine what [the
official] knew about [inmate's] risk of suicide." !d.
Even if officials know of a risk of suicide, and a suicide attempt does
occur, officials sued in their individual capacity are protected by qualified
immunity if they could reasonably believe that their response was not
deliberately indifferent to that risk." !d. Additionally, the 8th Circuit has
"held that it is not deliberate indifference when an official relies on the
recommendations of a trained professional. In Meloy v. Bachmeier, 302
F.3d 845 (8th Cir. 2002), a prison official with a nursing background
asserted qualified immunity on the grounds that she was relying on
doctor's orders in making treatment decisions. We held that the prison
officials' adherence to the doctor's order was objectively reasonable, for
"[t]he law does not clearly require an administrator with less medical
training to second-guess or disregard a treating physician's treatment
decision." Id. at 849. Similarly, the law does not require a jailer to
second-guess or disregard a psychiatrist's opinions or treatment
recommendations.
Drake v. Koss, 445 F.3d 1038, 1042 (8th Cir. 2006).
1. EXAMPLES
In Gregoire v. Class, 236 F.3d 413,418 (8th Cir. 2000), the 8th Circuit held
that a prison official was not deliberated indifferent to a prisoner's risk of
suicide because he waited approximately 45 minutes before acting on a
call form the prisoner's wife relaying the prisoner's suicide threat. In so
holding, however, the Court stated "[i]f an official completely disregarded
a phone call ... alerting the official to a suicide risk, such act may well
constitute deliberate indifference." !d.
"In the jail suicide context, qualified immunity is appropriate when a
plaintiff has failed to show ... that his jailers have acted in deliberated
indifference to the risk of his suicide." Luckert v. Dodge County, _
F.3d _,_(8th Cir. 2012) (internal quotation marks omitted).
"It is not enough to show the risk was obvious. A prison official is not
liable under the Fourteenth Amendment unless the official knows of facts
evidencing a substantial suicide risk and the official actually infers the
{00254489}
25
prisoner presents a substantial suicide risk." Coleman v. Parkman, 349
F.3d 534, 538 (8th Cir. 2003).
In instructing a Jury about inmate suicide, "a district court should never
ask a jury whether a risk was obvious or whether the official should have
known. The court must ask whether the official knew. But a plaintiff need
not secure officials' admissions to support a verdict. Rather, a plaintiff can
support an "actually knew" answer with sufficient "must have known"
evidence." Coleman v. Parkman, 349 F.3d 534, 538 n. 3 (8th Cir. 2003)
"The fact that the Appellants failed to prevent Lambert's suicide is not by
itself evidence of deliberate indifference." Lambert v. City of Dumas, 187
F.3d 931,938, (8th Cir. 1999).
When the case involves the question of whether the jailer failed to
discovery the decedent's suicidal tendencies, the "inqury becomes
whether [Jailer] knew of should have known there was a strong likelihood
that [inmate] would attempt to take his own life." Bell v. Stigers, 937 F.3d
1340, 1343 (8th Cir. 1991) (NOTE: This standard- "should have known"
- is likely no longer viable, because it is only a negligence standard that is
no longer applicable in§ 1983 litigation.)
"Although information contained in a suicide profile may assist jailers in
recognizing suicide risks, such information without more cannot
reasonably support the existence of a strong likelihood that a particular
prisoner will attempt suicide. Here, there is neither any evidence that
Stigers was familiar with the "suicide profile," nor was he under any duty
to be familiar with such a profile. As stated by the Eleventh Circuit in
rejecting suicide profile evidence, "[t]he law does not require jail officials
to keep up with the latest literature in the social sciences." Edwards, 867
F.2d at 1276. We agree with that statement of the law." Bell v. Stigers,
937 F.3d 1340, 1344 (8th Cir. 1991)
When jailers and/or supervisors are aware of a report that an inmate is at
risk of suicide, "the dispositive question is whether the measures taken
were so inadequate as to be deliberately indifferent to the risk." Luckert v.
Dodge County,_ F.3d _,_(8th Cir. 2012) (internal quotation marks
omitted).
"In evaluating an official's response to a known suicide risk, we should be
congnizant of how serious the official knows the risk to be." Luckert v.
Dodge County,_ F.3d _,_(8th Cir. 2012) (internal quotation marks
omitted).\
"[A] prison official's 'deliberate indifference' to a substantial risk of
serious harm to an inmate violates the Eighth Amendment." Farmer, 511
{00254489}
26
U.S. at 828. For the purposes of failure to protect claims, "it does not
matter ... whether a prisoner faces an excessive risk of attack for reasons
personal to him or because all prisoners in his situation face such a risk."
Hott, 260 F.3d at 906 (quoting Farmer, 511 U.S. at 843)).
Thus,
deliberate indifference can be predicated upon knowledge of a victim's
particular vulnerability (though the identity of the ultimate assailant is not
known in advance of the attack), or, in the alternative, an assailant's
predatory nature (though the identity of the ultimate victim is not known
in advance of the attack). Brown v. Budz, 398 F.3d 904, 915 (7th Cir.
2005)." Gregoire v. Class, 236 F.3d 413, 418 (8th Cir. 2000) (internal
footnotes omitted).
To prevail § 1983 for a violation of substantive rights, under either the
Eighth or Fourteenth Amendments, plaintiffs must establish that defendant
displayed "deliberate indifference" to a strong likelihood, rather than a
mere possibility that Sam Bell would attempt suicide. Bell v. Stigers, 937
F.2d 1340, 1343 (8th Cir. 1991).
Gordon v. Kidd, 971 F.2d 1087, 1095 (4th Cir. 1992) (no more than
negligence where jailer - who was not aware of suicide threat - tardy in
checking cell).
"In evaluating an official's response to a known suicide risk, we should be
cognizant of how serious the official knows the risk to be. Our cases
indicate that a single phone call to an official who has no other reason to
think an inmate is a suicide risk, most likely does not create a strong
likelihood that infliction of self-harm will result. Cf Bell v. Stigers, 937
F.2d 1340, 1344 (8th Cir. 1991) (stating "[a] single off-hand comment
about shooting oneself when no gun is available cannot reasonably
constitute a serious suicide threat"); Lambert, 187 F.3d at 938 (stating that
knowledge of a single incident of attempting to swallow a crack pipe three
years previous did not give rise to knowledge of a present serious risk of
suicide)." Gregoire v. Class, 236 F.3d 413, 418 (8th Cir. 2000) (internal
footnotes omitted).
"However, we must evaluate his actions in light of the information he
possessed at the time, the practical limitations of his position and
alternative courses of action that would have been apparent to an official
in that position. Cf Rellergert, 924 F.2d at 796. "The question is not
whether the jailers did all they could have, but whether they did all the
Constitution requires." !d. at 797. While we expect that jailers will learn
from their failures in preventing suicide, they are not constitutionally
liable for every failure, only those where they are deliberately indifferent
to the risk of suicide." Gregoire v. Class, 236 F.3d 413, 419 (8th Cir.
2000) (internal footnotes omitted).
{00254489}
27
G. Freedo111 of Religion
Prison inmates "do not forfeit all constitutional protections by reason of their
conviction and confinement in prison."
Bell v. Wolfish, 441 U.S. 520, 545 (1979).
Moreover, "federal courts must take cognizance of the valid constitutional claims of
prison inmates." Turner v. Safley, 482 U.S. 78, 78 (1987), which include actions based
on free exercise rights protected by the First Amendment. Pel! v. Procunier, 417 U.S.
817, 822 (1974).
However, "'[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the considerations
underlying our penal system."' Jones v. North Carolina Prisoners' Labor Union, Inc.,
433 U.S. 119, 125 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285 (1984)). "The
fact of confinement and the needs of the penal institution impose limitations on
constitutional rights, including those derived from the First Amendment which are
implicit in incarceration." Jones, 433 U.S. at 125. Furthermore, '"issues of prison
management are, both by reason of separation of powers and highly practical
considerations of judicial competence, peculiarly ill-suited to judicial resolution, and ...
accordingly, courts should be loath to substitute their judgments for that of prison
officials and administrators."' Iron Eyes v. Henry, 907 F.2d 810, 812 (8th Cir. 1990)
(quoting Pitts v. Thornburgh, 866 F.2d 1450, 1453 (D.C.Cir. 1989)).
An inmate who challenges the constitutionality of a prison regulation or policy
that limits the practice of religion must first establish that it infringes upon a sincerely
held religious belief. Hamilton v. Schriro, 74 F.3d 1545, 1550 (8th Cir. 1996).
A prisoner's free exercise claim is "judged under a 'reasonableness' test less
restrictive than that ordinarily applied to alleged infringements of fundamental
constitutional rights." 0'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); see also
Turner, 482 U.S. at 87-91. In Turner, the Supreme Court articulated the applicable
constitutional test in the context of prison regulations: "when a prison regulation
impinges on inmates' constitutional rights, the regulation is valid if it is reasonable
related to legitimate penological interests." 482 U.S. at 89. Prison security is one of
these penological interests. O'Lone, 482 U.S. at 348.
Several factors are to be
considered when evaluating the reasonableness of a prison regulation: (1) whether there
is a valid, rational connection between the regulation and the asserted governmental
interest; (2) whether alternative means for exercising the right remain open to the
prisoner; (3) the impact of the regulation on prison staff, other inmates and the allocation
of prison resources; and (4) the availability of ready alternatives to the regulation.
Turner, 482 U.S. at 89-91.
Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996) also gives a relatively thorough
discussion with regard to the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §
{00254489}
28
2000bb, an Act passed by Congress in 1993. 11 Even more recently, it is also important to
note that in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that
RFRA was unconstitutional, at least insofar as it applies to the States.
H. Prison Discipline
Although a prisoner enjoys no constitutional right to remain in a particular
institution, Murphy v. Missouri Dep't of Correction, 769 F.2d 502, 503 (8th Cir. 1985),
and although generally prison officials may transfer a prisoner for whatever reason or for
no reason at all, Olim v. Wakinekona, 461 U.S. 238, 250 (1983), a prisoner cannot be
transferred in retaliation for the exercise of a constitutional right. Goffv. Burton, 7 F.3d
734, 737 (8th Cir. 1993), cert. denied, 512 U.S. 1209 (1994). In raising a retaliatory
transfer claim, the prisoner must "'face a substantial burden in attempting to prove that
the actual motivating factor for his transfer"' was the impermissible retaliation. Goff, 7
F.3d at 737. The applicable test is a "but for" one.
Just as prison officials cannot lawfully transfer a prisoner for retaliatory reasons
alone, they cannot impose disciplinary sanction against a prisoner in retaliation for the
prisoner's exercise ofhis constitutional right. Goff, 7 F.3d at 738.
However, if the discipline which the prisoner claims to have been
retaliatory was in fact imposed for an actual violation of prisoner rules or
regulations, then the prisoner's claim that the discipline was retaliatory in
nature must fail.
Goff, 7 F.3d at 738. Similarly, the Eighth Circuit has stated:
"An inmate may maintain a cause of action for retaliatory discipline under
42 U.S.C. § 1983 where a prison official files disciplinary charges in
retaliation for an inmate's exercise of constitutional rights." Hartsfield, 511
F.3d at 829. But an inmate's retaliation claim fails "if the alleged
retaliatory conduct violations were issued for the actual violation of a
prison rule." Id. "Thus, a defendant may successfully defend a retaliatory
discipline claim by showing 'some evidence' the inmate actually
committed a rule violation." Id. "[A] report from a correctional officer,
even if disputed by the inmate and supported by no other evidence, legally
suffices as 'some evidence' upon which to base a prison disciplinary
violation, if the violation is found by an impartial decisionmaker." Id. at
831.
Bandy-Bey v. Crist,_ F.3d _, _ (81h Cir. 2009).
11
In a dissenting opinion, Judge McMillan gives reasons as to why he believes the
RFRA is unconstitutional. Hamilton, 74 F.3d at 1557-70.
{00254489}
29
A retaliatory discipline claim contains three elements. "A prima facie case of
retaliatory discipline requires a showing that: (1) the prisoner exercised a constitutionally
protected right; (2) prison officials disciplined the prison; and (3) exercising the right was
the motivation for the discipline." Meuir v. Greene County Jail Employees, 487 F.3d
1115, 1119 (8th Cir. 2007). "The plaintiff-inmate has a heavy evidentiary burden to
extablish a prima facie case." Id. It has also been stated, "[t]o prevail on a§ 1983 claim
for retaliation in violation of the First Amendment, [plaintiff] must demonstrate (1) that
he engaged in a protected activity; (2) that the government official took adverse action
against him; and (3) that the adverse action was motivated at least in part by the exercise
of the protected activity. Santiago v. Blair, _ F.3d _, _ (8th Cir. 2013).
Additionally, the "prisoner must demonstrate not only that a correctional officer took an
adverse action, but that the action 'would chill a person of ordinary firmness from
continuing in the protected activity."' Santiago v. Blair, _ F.3d _, _ (8th Cir.
2013), quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). The "ordinaryfitness test is well established in the casae law, and is designed to weed out trivial matters
from those deserving the time of the courts as real and substantial violations of the First
Amendment." Santiago, _ F.3d at _. This is an objective test; not subjective.
"[T]he test is what a prisoner of ordinary firmness would have done in reaction to the"
threat. Santiago,_ F.3d at_.
Additionally, the validity of a disciplinary committee's determination is viewed
under the "some evidence" standard. Goff, 7 F.3d at 739; Goffv. Dailey, 991 F.2d 1437,
1442 (8th Cir.) ("the requirements of due process are satisfied if some evidence supports
the decisions by the prison disciplinary board") cert. denied 510 U.S. 997 (1993). See
also Hrbek v. Nix, 12 F.3d 777 (8th Cir. 1993); Superintendent v. Hill, 472 U.S. 445, 456
(1985) ("[w]e hold that the requirements of due process are satisfied if some evidence
supports the decision by the prison disciplinary board to revoke good time credits. This
standard is met if 'there is some evidence from which the conclusion of the
administrative tribunal could be decided"), citing United States ex ref. Vajtauer v.
Commissioner of Immigration, 273 U.S. 103, 106 (1927). 12 Additionally, an inmate's
claim that he has been punished in retaliation for exercising a right will be precluded if
punishment was imposed based on an actual violation of the prison's rule. Earnest v.
Courtney, 64 F.3d 365, 367 (8th Cir. 1995) (per curium). See also Johnson v. Hamilton,
452 F.3d 967, 973 (8 1h Cir. 2006) (to prevail on this claim, a prisoner "carries a
substantial burden" and "[i]f the discipline which a prisoner claims is retailiatory was in
fact imposed for an actual violation of prison rules or regulations, the prisoner's claim
must fail").
There is also support for the proposition that procedural due process rights are not
implicated by a prison official's failure to respond to a grievance.
[Plaintiffs'] claim that his procedural due process rights were violated by
[warden's] failure to respond to the grievance is insufficient. [Plaintiff]
12
There is also support for the proposition that an inmate's retaliation claim is precluded
if punishment was imposed based on an actual violation of the prison's rule. Earnest v.
Courtney, 64 F.3d 365, 367 (8th Cir. 1995) (per curium).
{00254489}
30
has not plead facts which would show that he had a protectible "liberty" or
"property" interest in receiving an answer to his internal prison grievance.
Ouzts v. Cummins, 825 F.2d 1276, 1278 (8th Cir. 1987). Similarly, "[i]n the context of a
state prison system, an inmate grievance procedure is not constitutionally required."
Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986), citing See United States ex
rel. Wolfish v. Levi, 439 F. Supp. 114, 163 (S.D.N.Y. 1977), affd sub nom, Wolfish v.
Levi, 573 F.2d 118 rev'd on other grounds, Bell v. Wolfish, 441 U.S. 520 (1979 ). As a
result, "[i]fthe state elects to provide a grievance mechanism, violations of its procedures
do not deprive prisoners of federal constitutional rights. Therefore, a state's failure to
follow its grievance procedures does not give rise to a § 1983 claim." Spencer, 638 F.
Supp. at 316 (E.D.Mo. 1986). It has also been stated that the failure to respond to a
prisoner's grievance does not give rise to a constitutional deprivation. Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993). However, an inmate has a right to utilize an existing
prison grievance procedure to express his belief that he was subjected to excessive force.
Santiago v. Blair,_ F.3d _,_(8th Cir. 2013). See also Haynes v. Stephenson, 588
F.3d 1152, 1155- 56 (8th Cir. 2009) ("The filing of a prison grievance, like the filing of
an inmate's lawsuit, is protected First Amendment activity") (internal quotation makrs
and citation omitted). Consequently, retaliating against an inmate because he submitted a
grievance can result in a constitutional injury.
We have long held that "a threat of retaliation is sufficient injury if made
in retaliation for an inmate's use of prison grievance procedures" to
sustain a claim of First Amendment retaliation. Burgess v. Moore, 39 F.3d
216, 218 (8th Cir. 1994). This is true especially when the threats are ones
of death or serious ham to an inmate's safety. See e.g., Burton v.
Livingston, 791 F.2d 97, 100-01 (8th Cir. 1986) (holding that allegations
that a prison guard retailiated against a prisoner by terrorizing him with
threats of death, if proved, would constitute a violation of the prisoner's
First Amendment rights); Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir.
1999) (per curiam) (holding that threats to an inmate's safety after his use
of the prison grievance system supported a retaliation claim).
Santiago v. Blair,_ F.3d _,_(8th Cir. 2013).
"A prisoner has the right under the First Amendment to petition for the redress of
grievances under a prison's grievance procedures, and conduct that retaliates against the
exercise of a constitutionally protected right is actionable even if the alleged retaliatory
conduct does not itself rise to the level of a constitutional right." Santiago v. Blair,_
F.3d _,_(8th Cir. 2013) (internal quotation marks and citation omitted).
Often, questions concerning inmate discipline include involve questions of a
"liberty" interest, protected by the Due Process Clause of the 14th Amendment. When
inmates are entitled to due process before being disciplined, they must receive: (1)
advance written notice of the charges -- at least 24 hours notice; (2) an opportunity to
present evidence in their defense; (3) a written statement by the fact finder of the reasons
{00254489}
31
for the action; and (4) a decision supported by some evidence in the record. Ragan v.
Lynch, 113 F.3d 875, 876 (8th Cir. 1997); Superintendent, Mass. Correctional Inst. v.
Hill, 472 U.S. 445, 454 (1985); Wolffv. McDonnell, 418 U.S. 539, 563-67 (1974). See
also Dible v. Scholl, 506 F.3d 1106, 1110 (8th Cir. 2007) ("In a prison disciplinary
proceeding, the prisoner must receive: (1) advance written notice of the disciplinary
charges; (2) an opportunity, consistent with correctional goals and safety, to call
witnesses and present a defense; and (3) a written statement of the evidence relied upon
by the fact finder and the reasons for the disciplinary action").
In Wolffv. McDonnell, 418 U.S. 539 (1974), the Supreme Court was called upon
to decide what type of procedural due process requirements were necessary with regard
to disciplinary procedures imposed on inmates. The Court recognized that although
"lawful imprisonment necessarily makes unavailable many rights and privileges of the
ordinary citizen," "a prisoner is not wholly stripped of his constitutional protections when
he is imprisoned for crime." Wolff, 418 U.S. at 555. After analyzing its prior holdings,
the Court made the following conclusions with regard to due process requirements in
imposing disciplinary action against inmates:
1.
"We hold that written notice of the charges must be given to the
disciplinary action defendant in order to inform him of the charges
and to enable him to marshal the facts and prepare a defense."
2.
"At least a brief period of time after the notice, no less than 24
hours, should be allowed to the inmate to prepare for the
appearance before the Adjustment Committee."
3.
"We also hold that there must be a 'written statement by the
factfinders as to the evidence relied on and reasons' for the
disciplinary action."
4.
"We are also of the opinion that the inmate facing disciplinary
proceedings should be allowed to call witnesses and present
documentary evidence in his defense when permitting him to do so
will not be unduly hazardous to institutional safety or correctional
goals."
Wolff, 418 U.S. at 564-566.
Wolff, did not, however, devote a great deal of analysis to how a liberty interest
was created. That discussion occurred a couple of years later in Meachum v. Fano, 427
U.S. 215 (1976). The Court began with the proposition that the Due Process Clause does
not protect every change in the conditions of confinement having a substantial adverse
impact on the prisoner. It further held the Due Process Clause does not itself create a
liberty interest in prisoners to be free from intrastate prison transfers. Meachum, 427 U.S.
at 225. The court reasoned that transfer to a different facility, albeit one with more
burdensome conditions, was "within the normal limits or range of custody which the
{00254489}
32
conviction has authorized the State to impose." Meachum, 427 U.S. at 225. The
Meachum Court distinguished Wolffby noting that the liberty interest protected had been
created by state law; while in Meachum no comparable state law stripped officials of the
discretion to transfer prisoners to alternate facilities. Meachum, 427 U.S. at 228.
After the Meachum opinion was handed down, the Supreme Court began a
different, new approach to defining and determining when a state-created liberty interest
existed. For example, in Hewitt v. Helms, 459 U.S. 460 (1983), the court evaluated the
claims of inmates who had been confined to administrative segregation. While the Court
concluded the Due Process Clause created no such liberty interest in avoiding
segregation, it examined the possibility that the State had created such an interest by
virtue of its prison regulations. More specifically, in Hewitt, the Court asked whether the
State had gone beyond issuing mere procedural guidelines and had used "language of an
unmistakable mandatory character" such that the incursion on liberty would not occur
"absent specified substantive predicates." Because the Court found the state regulations
contained such mandatory directives, it decided the State had created a protective liberty
interest. Hewitt, 459 U.S. at 471-472.
In 1995, the Court rejected and moved away from the type of analysis utilized in
Hewitt insofar as it was applied to prisoners who had been convicted and were serving
time. More specifically, in Sandin v. Conner, 515 U.S. 472 (1995), the Court held:
The time has come to return to the due process principles we believe were
correctly established and applied in Wolff and Meachum. Following Woljf,
we recognize that States may under certain circumstances create liberty
interests which are protected by the Due Process Clause. But these
interests will be generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.
Sandin, 515 U.S. at 483-84 (internal citations and footnotes omitted.)
In short, Sandin stands for the proposition that even though a State or prison may
utilize "mandatory" language with regard to certain disciplinary proceedings, that
language will not create a liberty interest under the Due Process Clause. See Wilkinson v.
Austin, 545 U.S. 209, 223 (2005) ("After Sandin, it is clear that the touchstone of the
inquiry into the existence of a protected state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of regulations regarding those
conditions but the nature of those conditions themselves 'in relation to the ordinary
incidents of prison life"') (quoting Sandin, 515 U.S at 484). Instead, the procedural due
process requirements set forth in Wolff and Meachum must be adhered to if and only if
the disciplinary proceeding imposed "atypical and significant hardships on the inmate."
For the most part, those types of "atypical and significant hardships" would exist only
when good-time credits were forfeited, or other similar significant punishment imposed.
{00254489}
33
The Eighth Circuit has concluded that Sandin is inapplicable when considering
claims of pretrial detainees. 13 "We agree with [plaintiff] that Sandin v. Conner, 515 U.S.
472 (1995) does not apply to pretrial detainees." Hanks v. Prachar, 457 F.3d 774, 776
(8th Cir. 2006). This holding appears to be followed by the other Circuits which have
addressed this issue. For example, in Rapier v. Harris, 172 F.3d 999, 1004-05 (7th Cir.,
1999), the court of appeals held:
Therefore, as the cases we already have discussed indicate, the Sandin
analysis will not support punishing a pretrial detainee. Rather, as the
circuits that have addressed the matter have indicated, although it is
permissible to punish a pretrial detainee for misconduct while in pretrial
custody, that punishment can be imposed only after affording the detainee
some sort of procedural protection.
(Emphasis added.) See also Mitchell v. Dupnik, 75 F.3d 517, 524-25 (9th Cir. 1996)
("pretrial detainees may be subjected to disciplinary segregation only with a due process
hearing to determine whether they have in fact violated any rule"); Carlo v. City of
Chino, 105 F.3d 493, 498, n.l (9th Cir., 1997) (Sandin's analysis that incarcerated
prisoner has no liberty interest to be free from segregated confinement is inapplicable to
pretrial detainees"; Whitford v. Boglino, 63 F.3d 527, 531, n. 4 (7th Cir., 1995) (Sandin
does not apply to pretrial detainees).
There may be times that jail security issues dictate that full disclosure of
information not be provided to an inmate accused of misconduct. This can be done; but
13
In the Eighth Circuit, a person who has been convicted but is awaiting sentence is
treated as a convicted person. Whitnack v. Dough/as County, 16 F.3d 954, 957 (8th Cir.
1994) (stating that plaintiff who had been convicted but was awaiting sentence would
have his condition of confinement claim analyzed under the Eighth Amendment).
Similarly, the Fifth, Ninth and Tenth Circuits have reached the same conclusion:
individuals who have been convicted but are awaiting imposition of punishment are to
have their conditions of confinement claims analyzed under the Eighth Amendment. See
Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir. 2004) ("[w]e hold that a prisoner who has
been convicted but has not yet been sentenced has the same status as a sentenced prisoner
for purposes of analyzing whether the prisoner has a liberty interest in having certain
procedural protections apply before being punished in connection with prison disciplinary
proceedings'); Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (holding that for
purposes of analyzing whether the plaintiff had a liberty interest in being free from
confinement in the prison's SHU for 30 days, the convicted but unsentenced prisoner
should be treated as a sentenced inmate); Berry v. Muskogee, 900 F.2d 1489, 1493 (lOth
Cir. 1990) (holding that convicted but not yet sentenced prisoner should be treated as
sentenced prisoner and have condition of confinement claim analyzed under Eighth
Amendment). However, a contrary result has been reached in Fuentes v. Wagner, 206
F.3d 335, 341 (3rd Cir. 2000) (holding that a convicted inmate awaiting sentencing has
the status of a pretrial detainee); Cobb v. Aytch, 643 F.2d 946, 962 (3rd Cir. 1981)
(holding the right to remain at liberty continued until the pronouncement of sentencing).
{00254489}
34
the rational for that decision must be properly supported. For example, in Dible v. Scholl,
506 F.3d 1106 (8th Cir. 2007), an inmate on a work-releasea program was chaged with
choking a citizen. When the disciplinary notice was issued, it did not advise the inmate
of who he was accused of choking or when the incident allegedly occurred. When the
individual defendants appealed the district court's denial of their qualified immunity
motion, the Court of Appeals explained that they failed to create a sufficient record as to
why appropriate information had not been provided.
Balancing the prisoner's right to a defense with the prison's need for
security is reflected both in the requirements of [Woijf v. McDonnell, 418
U.S. 539, 572 (1974)], and the need for courts to determine what
procedural safeguards are feasible in a particular case. See McCollum v.
Miller, 695 F.2d 1044, 1049 (7th Cir. 1982). Before it can sort out the
proper balance, the district court must be given reasons to justify the
absence of specific facts from a disciplinary notice. See Sira [v. Morton,
380 F.3d 57, 76 (2nd Cir. 2004)]. As the movants for summary judgment,
it was the Defendants' responsibility to present these reasons to the district
court, even if only disclosed in camera. See Freitas [v. Auger, 837 F.2d
806, 811 (8th Cir. 19880]. No such reasons were given to the district
court. Without support in the record, we cannot infer that the lack of
specific facts in the disciplinary notice was justified by countervailing
correctional needs. See McCollum, 695 F.2d at 1048-49. The district court
did not err in finding that the disciplinary notice failed to comport with
due process.
Dible v. Scholl, 506 F.3d 1106, 1110-11 (8th Cir. 2007).
In those cases involving a pretrial detainee, it is important to determine what
constitutes discipline and how it can be imposed on the detainee.
We begin with the fundamental principle that a person held in
confinement as a pretrial detainee may not be subjected to any form of
punishment for the crime for which he is charged. See Bell v. Wolfish, 441
U.S. 520, 535 (1979). Any other rule would render nugatory the basic
proposition that a person is innocent until there is a judicial determination
of guilt. See id. Nevertheless, a person lawfully detained in pretrial
confinement because there is probable cause to believe that he has
committed a crime is subject to certain restrictions on his liberty. The
government may take measures that are reasonably calculated to
effectuate the pretrial detention. See id at 537. The government also has
legitimate interests that stem from its need to manage the facility in which
the individual is detained. These legitimate operational concerns may
require administrative measures that go beyond those that are, strictly
speaking, necessary to ensure that the detainee shows up for trial. For
example, the Government must be able to take steps to maintain security
and order at the institution and make certain no weapons or illicit drugs
{00254489}
35
reach detainees.
Id. at 540.
These restraints may at times be
"discomforting," but, as long as they are "reasonably related" to the
effective management of the confinement facility, they are not considered
punishment for the crime that the detainee is suspected to have committed.
In deciding whether a particular measure is reasonably related to the
function of pretrial confinement, we must be careful, the Supreme Court
has admonished, to remember that the implementation of such measures is
"peculiarly within the province and professional expertise of corrections
officials, and, in the absence of substantial evidence in the record to
indicate that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert judgment in
such matters." Bell, 441 U.S. at 540 n. 23 (quoting Pel! v. Procunier, 417
U.S. 817, 827 (1974) (internal quotation marks omitted).
In addition to the regulatory measures that prison officials may take to
ensure the effectiveness of pretrial confinement, a pretrial detainee can be
punished for misconduct that occurs while he is awaiting trial in a pretrial
confinement status. Notably, the basis for this punishment is not the
underlying crime of which he stands accused; rather, this punishment is
based upon the detainee's actions while in pretrial confinement. See
Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996); Collazo-Leon v.
United States Bureau of Prisons, 51 F.3d 314,318 (1st Cir. 1995).
Unlike sentenced prisoners for whom much institutional punishment can
be considered to be within the parameters of the imposed sentence of
confinement, see Sandin v. Conner, 515 U.S. 472, 484 (1995), pretrial
detainees, serving no sentence and being held only to answer an
accusation at trial, have no expectation that, simply by virtue of their
status as pretrial detainees, they will be subjected to punishment. Indeed,
in Sandin, the Supreme Court explicitly stated that "Bell correctly noted
that a detainee 'may not be punished prior to an adjudication of guilt in
accordance with due process of law.'" Sandin, 515 U.S. at 484 (quoting
Bell, 441 U.S. at 535. This distinction between convicted prisoners
serving a sentence and pretrial confinees has been recognized by the
courts of appeals that have addressed this issue. The First and Ninth
Circuits have recognized specifically that pretrial detainees may
constitutionally be punished for infractions committed while awaiting
trial, but also have recognized the need for procedural protections prior to
the imposition of any punishment. In Mitchell v. Dupnik, 75 F.3d 517 (9th
Cir. 1996), the Ninth Circuit held that "pretrial detainees may be subjected
to disciplinary segregation only with a due process hearing to determine
whether they have in fact violated any rule." Id. at 524. The court
explained that, in contrast to convicted prisoners, pretrial detainees have
no sentence that could be deemed to encompass such disciplinary
confinement. See id. at 524-25. Moreover, the court noted, "a due
process hearing helps to ensure that disciplinary punishment is what it
{00254489}
36
purports to be, rather than punishment in advance of conviction for the
crime that led to detention-the evil condemned by Bell." Id at 524 n. 4.
More specifically, Mitchell held that the prison's blanket policy of
forbidding inmates from calling witnesses on their behalf during
disciplinary proceedings violated due process. See id. at 525.
Similarly, in Collazo-Leon v. United States Bureau of Prisons, 51 F.3d
315, 318 (1st Cir. 1995), a pretrial detainee was brought before a
disciplinary hearing officer on charges of attempted escape and attempted
bribery of a prison guard. He was found guilty of the misconduct and was
placed in disciplinary segregation. He brought a petition for a writ of
habeas corpus alleging violations of his substantive and procedural due
process rights. The First Circuit held that punitive restrictions or
conditions may constitutionally be placed on pretrial detainees, provided
that the restrictions further some legitimate governmental objective (such
as addressing a specific institutional violation, ensuring a detainee's
presence at trial, or maintaining safety, internal order, and security within
the institution) and are not excessive in light of the seriousness of the
violation. See id at 318 (citing Bell, 441 U.S. at 540). The court noted
that "[t]he administrators of the prison must be free, within appropriate
limits, to sanction the prison's pretrial detainees for infractions of
reasonable prison regulations that address concerns of safety and security
within the detention environment." Id Drawing on Bell's admonition that
courts should respect the professional expertise of corrections officials in
maintaining security and order in penal institutions, the First Circuit stated
in Collazo-Leon that Bell provided "clear approval of a broad exercise of
discretion by prison authorities to take reasonable and necessary action,
including punishment, to enforce the prison disciplinary regime and to
deter even pretrial detainees from violation of its requirements." Id The
court thus held that the Constitution does not prohibit the punishment of
pretrial detainees for legitimate institutional purposes, but prohibits only
the exercise of disciplinary authority for the purpose of, or with the
unintended effect of, punishing the pretrial detainee for the acts for which
he is being detained. See id. The court thus vacated the district court's
grant of habeas corpus on substantive due process grounds and remanded
the case to the district court to determine whether the petitioner had
received the process that he was constitutionally due.
Although this circuit has not directly decided whether a pretrial detainee
has the right to procedural due process in connection with a punishment
for disciplinary infractions, we have indicated in dictum in Whitford v.
Boglino, 63 F.3d 527, 531 n. 4 (71h Cir. 1995), that a due process hearing
is required.
In sum, prison officials have considerable leeway to punish convicted
prisoners for misconduct committed while in prison without affording
{00254489}
37
them further procedural protection. The Due Process Clause simply
guarantees convicted prisoners the right to be free of punishment that is
beyond the normally expected incidents of prison life. See Sandin v.
Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 480,
493 (1980). However, pretrial confinees are not similarly situated; they
are not under a sentence of confinement, and therefore it cannot be said
that they ought to expect whatever deprivation can be considered incident
to serving such a sentence. Therefore, as the cases we already have
discussed indicate, the Sandin analysis will not support punishing a
pretrial detainee. Rather, as the circuits that have addressed the matter
have indicated, although it is permissible to punish a pretrial detainee for
misconduct while in pretrial custody, that punishment can be imposed
only after affording the detainee some sort of procedural protection.
Because the same conduct may be the basis for either nonpunitive,
regulatory restrictions or punitive sanctions, it is often important to
distinguish between nonpunitive measures and the punitive measures that
are subject to due process restrictions. We cannot accept the suggestion of
the amicus, relying on Hewitt v. Helms, 459 U.S. 460 (1983), that the
distinction between punitive and non-punitive measures ought to depend
on whether we can discern in state regulations governing the confinement
of pretrial detainees sufficient evidence of the intent of state legislative
and regulatory authorities to create a protectable liberty interest. This
methodology, grounded in Hewitt, has been rejected by the Supreme
Court, in Sandin, in the context of convicted prisoners and is, we believe,
no more valid in the context of pretrial detainees. We are aware that
Sandin distinguishes between convicted prisoners and pretrial confinees,
but we do not believe that the distinction made by the Court, read in
context, justifies the continued vitality of the Hewitt approach in dealing
with pretrial confinees. In Sandin, the Supreme Court made the
distinction between the convicted prisoners and pretrial confinees while
discussing the nature of the liberty interest implicated in a penal sentence
of confinement. As we have discussed already, the Court emphasized that
punitive restrictions placed on pretrial confinees cannot be justified on the
ground that such restrictions are an expected part of their sentence for the
simple reason that they are not serving a sentence. This analysis,
however, does not suggest the continued vitality of Hewitt. Indeed, the
same concerns that caused the Supreme Court to reject such an approach
in the case of convicted prisoners militate against the use of such a
methodology here. In Sandin, the Supreme Court rejected the Hewitt
approach because it had produced "at least two undesirable effects." 515
U.S. at 482. First, it "creates disincentives for States to codify prison
management procedures in the interest of uniform treatment." Id.
Second, "the Hewitt approach has led to the involvement of federal courts
in the day-to-day management of prisons, often squandering judicial
resources with little offsetting benefit to anyone." Id. This latter effect,
{00254489}
38
the Court added, "has run counter to the view expressed in several of our
cases that federal courts ought to afford appropriate deference and
flexibility to state officials trying to manage a volatile environment." Id
In our view, a more fruitful methodology for distinguishing between
punitive and non-punitive actions against pretrial confinees can be found
in Bell, the Court's watershed case involving pretrial confinees and a
holding left undisturbed by Sandin. Bell established that a particular
measure amounts to punishment when there is a showing of express intent
to punish on the part of detention facility officials, when the restriction or
condition is not rationally related to a legitimate non-punitive government
purpose, or when the restriction is excessive in light of that purpose. See
Bell, 441 U.S. at 538. Additionally, a restriction or condition may
"amount to punishment" if prison officials are "deliberately indifferent" to
a substantial risk to the detainee's safety. See Zarnes v. Rhodes, 64 F.3d
285, 290 ((7th Cir. 1995) (holding that inmate's allegation that prison
guards had shown deliberate or reckless disregard for her safety by
placing her in a cell with a dangerous inmate was sufficient to state a
claim under the Due Process Clause). In this context, we have defined
"deliberate indifference" to mean intentional or criminally reckless
conduct. See Salazar v. City ofChicago, 940 F.2d 233, 238 (7th Cir. 1991).
Thus, to violate a pretrial detainee's due process rights, prison officials
would have to intend for him to die or to suffer grievously, or they would
have to act indifferently to a known risk that he would die or suffer
grievously. See id at 238-39 (noting that any act with a state of mind less
than intent or criminal recklessness, such as negligence or gross
negligence, does not amount to punishment); see also Tesch v. County of
Green Lake, 157 F.3d 465, 474 (7th Cir.1998) (citing cases establishing
that a pretrial detainee must show prison officials' deliberate indifference
toward the detainee's need for medical care, risk of suicide, risk of harm
from other inmates, or need for food and shelter); Brownell v. Figel, 950
F.2d 1285- 1290-91 (7th Cir. 1991) (noting that deliberate indifference tointentional or reckless disregard for-the serious medical needs of a pretrial
detainee amounts to constitutionally impermissible punishment).
Rapier v. Harris, 172 F.3d 999, 1002-06 (7th Cir. 1999).
When Sandin is applicable, it can provide substantial support for dispositive
motions in cases involving prison conditions. In order to sustain a due process claim
regarding the proceedings which resulted in being placed in administrative segregation,
the plaintiff "must demonstrate that the conditions imposed on him constituted an
atypical and significant hardship in relation to the ordinary incidents of prison life."
Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). "Sandin concluded that the
inmate had no liberty interest in avoiding the disciplinary confinement in issue in that
case because that confinement did not present an atypical and significant deprivation in
relation to the ordinary incidents of prison life." Moorman v. Thalacker, 83 F.3d 970,
{00254489}
39
972 (8th Cir. 1996). Sandin teaches that a convicted prisoner has no due process claim
that he should not be placed in administrative or punitive segregation. This results from
the fact that a convicted inmate "has no protected liberty interest in remaining in the
general population; his only interest is in not being subjected to 'atypical' conditions of
confinement." Wycoffv. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996). Similarly it has
been stated, "A demotion to segregation, even without cause, is not itself an atypical and
significant hardship unless [plaintiff] points to some specific difference between his
conditions in segregation and the conditions in the general population which amounts to
such a hardship." Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). See also
Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) ("[w]e have consistently held that a
demotion to segregation, even without cause, is not itself an atypical and significant
hardship"). Also, an inmate's "demotion from administrative segregation to punitive
isolation in not the sort of deprivation that qualifies as 'atypical and significant."'
Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir. 1996). An inmate sentenced to 30
days "punitive isolation" did not rise to the level of atypical and significant deprivation.
Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). Similar results have been
reached by other Eighth Circuit opinions. See Wycoffv. Nichols, 94 F.3d 1187, 1190 (8th
Cir. 1996) (holding that inmate who served 45 days in administrative segregation had not
suffered atypical hardship and, therefore, "his § 1983 damages action is precluded by
Sandin"); Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th
Cir. 1996) (finding inmate's participation in work release program "did not rise to a
liberty interest inherent in the Due Process Clause" and, therefore, his removal from that
program and return to prison was not actionable under 42 U.S.C. § 1983); Moorman v.
Thalacker, 83 F.3d 970, 972 (8th Cir. 1996) (stating that discipline of transfer from
minimum- to medium-security prison, 15 days of the highest-level of disciplinary
detention and 107 days in less-restrictive disciplinary detention did not "exceed the
ordinary incidents of prison life" and, therefore, failed to rise to level of being
constitutionally significant); Orr v. Larkins,_ F.3d _(8th Cir. 2010, No. 08-3857)
(finding that confinement in administrative segregation for 9 months following a "dirty"
urine test was barred by Sandin analysis)
Additionally, in those cases which are governed by Sandin, it is clear there "is no
constitutional liberty interest in having state officers follow state law or prison officials
follow prison regulations." Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003), citing
Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). "Rather, any liberty interest
must be an interest in the nature of the prisoner's confinement." Phillips, 320 F.3d at 847
quoting Kennedy, 100 F.3d at 643. "Thus, [plaintiff] is incorrect in asserting that the
denial of a hearing should be considered when determining whether a liberty interest was
affected." Phillips, 320 F.3d at 847.
"A prisoner does not have a liberty interest in contact visitation." Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003). A prisoner "may have a liberty interest in
some access to exercise, but we have never set a time limit on how often prisoners must
be allowed to exercise. Here, [plaintiff] was denied exercise privileges for thirty-seven
days. While thirty-seven days is perhaps pushing the outer limits of acceptable
{00254489}
40
restriction, we find that it did not constitute an atypical and significant hardship for
[plaintiff] in context of normal prison life." Id.
"Limitations on religious services, especially for a short period of time, have also
been found not to present an atypical and significant hardship. (Internal citation omitted.)
[Plaintiff] was not prevented from exercising his religion within his cell, thus he was not
subjected to an atypical and significant hardship. Additionally, he was only denied
religious services for thirty-seven days. This is not an atypical and significant hardship
that [plaintiff] could not have anticipated upon his incarceration. Thus, no due process
violation occurred." Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).
I. Prison Fights (Inmate on Inmate Violence)
Because "[b]eing violently assaulted in prison is simply not 'part of the penalty
that criminal offenders pay for their offenses against society,"' prison officials have a
duty to protect inmates from violence at the hands of other inmates. Farmer v. Brennan,
511 U.S. 825, 833-34 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Yet because only cruel and unusual punishment is prohibited by the Eighth Amendment,
a prisoner must satisfy two requirements in order to state a constitutional violation. He
must establish first, that he is incarcerated under conditions posing a substantial risk of
harm, and second, "deliberate indifference" to that risk. Farmer, 511 U.S. at 834; Spruce
v. Sargent, 149 F.3d 783, 785 (8th Cir. 1998); Davis v. Scott, 94 F.3d 444, 446 (8th Cir.
1996); Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006) ("[t]o sustain an Eighth
Amendment claim based on the failure to protect him from other inmates, [plaintiff] must
show that he was incarcerated under conditions posing a substantial risk of serious harm
and that the prison officials actually knew of and disregarded the risk to [plaintiffs]
health and safety"). "Absent facts establishing both factors, no constitutional violation
exists and the prison officials are not liable." Prater v. Dahm, 89 F.3d 538, 541 (8th Cir.
1996). Deliberate indifference requires a showing that the official knew the risk existed,
but disregarded it. Farmer, 511 U.S. at 837; Spruce, 149 F.3d at 785. The Eighth Circuit
has previously held that in order to establish a viable claim of this sort, "the inmate must
show that the official 'knows of and disregards an excessive risk to inmate health or
safety; the 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."'
Davis, 94 F.3d at 446, quoting Farmer v. Brennan, 511 U.S. at 837 (1994)
Rape or sexual assault at the hands of other prisoners is, of course, "sufficiently
serious to amount to a deprivation of constitutional dimension." Jensen v. Clarke, 94
F.3d 1191, 1197 (8th Cir. 1996); Spruce v. Sargent, 149 F.3d 783, 785 (8th Cir. 1998).
While it is true that constructive knowledge, or the "should-have-known"
standard, is not sufficient to support a finding of deliberate indifference,
see Farmer, 511 U.S. at 837, it does not follow that the required element
of subjective knowledge cannot be proved by evidence of surrounding
circumstances. The question whether the official know of the risk is
subject to demonstration, like any other question of fact, by inference from
{00254489}
41
circumstantial evidence. See id At 842. Therefore, if a plaintiff presents
evidence of "very obvious and blatant circumstances" indicating that the
defendant knew the risk existed, the jury may properly infer that the
official must have known.
Spruce v. Sargent, 149 F.3d 783, 786 (8th Cir. 1998).
However, the Eighth Circuit has made it clear that if an inmate is injured by
another in a "surprise attack", the prison officials are likely entitled to qualified immunity
from suit. "We have held in a number of cases that prison officials are entitled to
qualified immunity from § 1983 damage actions premised on an Eighth Amendment
failure-to-protect theory when an inmate was injured in a surprise attack by another
inmate." Curry v. Crist, 226 F.3d 974, 977, 978-79 (8th Cir. 2000). See also Jackson v.
Everett, 140 F.3d 1149, 1152 (8th Cir. 1998); Prosser v. Ross, 70 F.3d 1005, 1007 (8th
Cir. 1995); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990); Falls v. Nesbitt,
966 F.2d 375, 378-79 (8th Cir. 1992) Gudgment for plaintiff on merits reversed).
Additionally, the mere fact that an assault in the jail occurs after a threat of violence has
been made does not necessarily transform the case into one of liability under § 1983 for
the guards. As the Eight Circuit has repeatedly observed, threats among inmates are
common and do not necessarily create or show a substantial risk of harm.
As an initial matter, Prater has alleged no facts from which an inference
could be made that the prison officials actually knew of the risk to Prater.
Although Prater's pleadings allege that he was threatened by Penn, threats
between inmates are common and do not, under all circumstances, serve
to impute actual knowledge of a substantial risk of harm.
Prater, 89 F.3d at 541 (emphasis added). See also Jackson v. Everett, 140 F.3d 1149,
1152 (8th Cir. 1998).
Additionally, even if the "substantial risk" element can be met by the plaintiff, the
guard can still escape liability if he did not act with deliberate indifference to that risk.
As the Supreme Court explained in Farmer, even if a prison official is aware of a
substantial risk to inmate safety, the official is not liable as long as he does not exhibit
deliberate indifference to that risk.
[P]rison officials who actually knew of a substantial risk to inmate health
or safety may be free from liability if they responded reasonably to the
risk, even if the harm ultimately was not averted. A prison official's duty
under the Eighth Amendment is to ensure "reasonable safety," (citations
omitted) a standard that incorporates due regard for prison officials'
"unenviable task of keeping dangerous men in safe custody under humane
conditions," (citations omitted). Whether one puts it in terms of duty or
deliberate indifference, prison officials who act reasonably cannot be
found liable under the Cruel and Unusual Punishments Clause.
{00254489}
42
Farmer, 511 U.S. at 844-45. See also Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir.
2002) (prison officials enjoy qualified immunity from failure-to-protect from inmate
violence "unless a reasonable official would have known that [official's] actions
constituted a deliberate, callous, or reckless disregard for [inmate's] safety"); Prater, 89
F.3d at 541 (even if prison officials are aware of substantial risk of harm, they "may·
nevertheless escape liability" if they respond reasonably even if the harm ultimately was
not averted).
IV.
Understanding Liability Issues and Reducing
Liability Exposure
A. Individual Liability: Respondeat Superior Not Applicable (Supervisor Liability)
In Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978)
the Supreme Court concluded that while municipalities may be subject to § 1983 claims,
they may not be subjected to those claims based solely upon a respondeat superior
theory.
We conclude, therefore, that a local government may not be sued under §
1983 for an injury inflicted solely by its employees or agents. Instead, it is
when execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is
responsible under§ 1983.
Monell, 436 U.S. at 694.
Along this same line, each individual defendant must have played a role in the
events causing the constitutional deprivation.
Section 1983, of course, requires a causal relationship between a
defendant's conduct and a plaintiffs constitutional injury. Absent such a
relationship, the defendant is entitled to dismissal.
Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999), quoting Latimore v. Widseth, 7
F.3d 709,716 (8th Cir.) (en bane), cert. denied, 510 U.S. 1140 (1994).
Liability under § 1983 requires a causal link to, and direct responsibility
for, the deprivation of rights. Madewell v. Roberts, 909 F.2d 1203, 1208
(8th Cir. 1990.) Before liability may be imposed under section 1983,
plaintiff must show each defendant either did some affirmative act,
participated in the affirmative act of another, or failed to perform an act
which resulted in the deprivation of plaintiffs federally protected rights.
See Stevenson v. Koskey, 877 F.2d 1435 (9th Cir. 1989).
{00254489}
43
Temple v. Dahm, 905 F.Supp 670,672 (D.Neb. 1995).14
Additionally, for a supervisor, such as a sheriff, to be liable for the acts of a
subordinate, "something more must be shown than merely the existence of the
supervisor-subordinate relationship." Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir.
1987). See also Ripson v. Alles, 21 F.3d 805, 809 (8th Cir. 1994) (same).
In addition, mere negligence in failing to detect and prevent a
subordinate's conduct is not enough for liability under Section 1983.
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
"The
supervisor must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what [he] might see." Id
Clay, 21 F.3d at 809.
If a supervisor is not directly involved in the constitutional deprivation,
supervisory liability for § 1983 claims can be established only with a showing of
deliberate indifference. "A prison official, such as Warden Reed, 'may not be held liable
under § 1983 for the constitutional violation of a subordinate on a respondeat superior
theory.'" Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007) quoting Ambrose v. Young,
474 F.3d 1070, 1079 (8th Cir. 2007) (quotation omitted). "A prison official, nonetheless,
violates the Eighth Amendment by failing to protect an inmate from a substantial risk of
serious harm to the inmate." Lenz, 490 F.3d at 995. One of the essential elements of
such a showing is that the official was aware of a problem. This is often an issue ripe for
summary judgment. For example, in Lenz v. Wade, 490 F.3d. 995 (8th Cir. 2007), three
prison guards and a warden were found liable at trial for an assault on an inmate. While
the inmate was handcuffed, the three guards took the inmate to a room where they beat
him and "shocked him with a shock stick." Id. at 993. The warden, who did not
personally participate in the beating, was found liable by the trial court because his
actions constituted deliberate indifference. Only the warden appealed.
14
Similarly, in Bosley v. Kearney R-1 School District, 904 F.Supp. 1006, 1017
(W.D.Mo. 1995), aff'd on other grounds, 140 F.3d 776 (8th Cir. 1997), Judge Bartlett
held:
Under 42 U.S.C. § 1983, plaintiff must show that 1) the defendant acted
under color of state law; 2) the defendant's action involves one or more
violations of plaintiffs constitutional rights; and 3) that the constitutional
harm suffered was actually and proximately caused by the defendant's
conduct. Chapman v. Musich, 726 F.2d 405, 407 (8th Cir. 1984), cert.
denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984).
(emphasis added.) See also Black v. Coughlin, 76 F.3d 72, 74 (2nd Cir. 1996) ("[w]e
have construed personal involvement for these purposes to mean direct participation, or
failure to remedy the alleged wrong after learning of it, or creation of a policy or custom
under which unconstitutional practices occurred, or gross negligence in managing
subordinates").
{00254489}
The Eighth Circuit observed that in order to present a viable Eighth Circuit claim,
the plaintiff-inmate must show that a supervisor must act with deliberate indifference.
A violation of the Eighth Amendment based on a failure to protect has two
parts. First, the conditions that result from the failure to protect the inmate
must pose a substantial risk of serious harm to the inmates. (Citation
omitted.) This objective requirement ensures that the deprivation is
sufficiently serious to amount to a deprivation of constitutional dimension.
(Citation and internal quotation marks omitted.) Here, no dispute exists
that the abusive conditions that developed at the Cummins Unit posed a
substantial risk of serious harm to the inmates.
Second, the subject prison official must have exhibited a sufficiently
culpable state of mind, that is, the prison official must have been
deliberately indifferent to a substantial risk of serious harm to the inmates.
(Citation omitted.) A prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk
to inmate health or safety; the 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. (Citation and quotation marks
omitted.) This subjective state of mind must be present before a plaintiff
can be successful because only the unnecessary and wanton infliction of
pain implicates the Eighth Amendment. (Citation and quotation marks
omitted.) This requisite state of mind is akin to recklessness, which is
more blameworthy than negligence, yet less blameworthy than
purposefully causing or knowingly bringing about a substantial risk of
serious harm to the inmates. (Citation and quotation marks omitted.)
Similarly, in Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996), the Eighth Circuit held
supervisors may be held individually liable under§ 1983 ifthey:
(1)
Received notice of a pattern of unconstitutional acts committed by
subordinates;
(2)
Demonstrated deliberate indifference to or tacit authorization of
the offensive acts;
(3)
Failed to take sufficient remedial action; and
(4)
That such failure proximately caused injury.
Andrews, 98 F.3d at 1078 (citing Jane Doe A. v. Special School Dist. of St. Louis County,
901 F.2d 642, 645 (8th Cir. 1990). Also, a supervisor may be held individually liable
under§ 1983 ifhe:
{00254489}
45
directly participates in a constitutional violation or if a failure to properly
supervise and train the offending employee caused a deprivation of
constitutional rights. (Citation omitted.) The plaintiff must demonstrate
that the supervisor was deliberately indifferent to or tacitly authorized the
offending acts. (Citation omitted.) This requires a showing that the
supervisor had notice that the training procedures and supervision were
inadequate and likely to result in a constitutional violation. (Citation
omitted.)
Andrews, 98 F.3d at 1078_15
B. Difference Between Individual-capacity and Official-capacity Claims
In Kentucky v. Graham, 473 U.S. 159 (1985) the Supreme Court succinctly
summarized the difference between an individual-capacity (or personal) suit and an
official-capacity (or representative) suit. The Court stated:
Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law. (Citation
omitted.) Official-capacity suits, in contrast, "generally represent only
another way of pleading an action against an entity of which an officer is
an agent" (citation omitted). As long as the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.
Graham, 473 US. at 165-66. See also Brandon v. Holt, 469 U.S. 464 (1985). Thus, an
individual-capacity suit under§ 1983 simply requires proof of a deprivation of a federally
protected right by an individual acting under color of state law. See Graham, 473 U.S. at
166.
An official-capacity suit, however, is one where "the real party in interest ... is the
governmental entity and not the named official ..." Hafer v. Melo, 502 U.S. 21, 25
(1991). In order to prevail in an official-capacity suit, the plaintiff must prove the two
elements necessary in an individual capacity suit and a third element. That additional
burden requires the plaintiff to prove that the governmental entity itself was the "moving
force" behind the deprivation such that it would be proper to impose liability on the
municipality. See Polk County v. Dodson, 454 U.S. 312, 326 (1981) (quoting Monell v.
15
Similarly, the Eight Circuit has held:
We recognize that "although the doctrine of respondeat superior does not
apply to § 1983 cases, a § 1983 claimant may maintain a theory of direct
liability against a prison or other official if that official fails to properly
train, supervise, direct or control the actions of a subordinate who causes
the injury."
Johnson v. Lockhart, 941 F.2d 705, 707 (8th Cir. 1991), quoting Crooks v. Nix, 872 F.2d
800, 804 (8th Cir. 1989).
{00254489}
46
New York City Dep't of Social Services, 436 U.S. 658, 694 (1978). See also Leatherman
v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167
(1993) (stating that a municipality cannot be held liable under § 1983 "unless a municipal
policy or custom caused the constitutional injury.").
C. Review Official Policies
To date, the Supreme Court has consistently required that § 1983 plaintiffs
establish that the governmental entity be at fault for the alleged constitutional violation-respondeat superior will not be sufficient. In one of its most recent pronouncements on
the issue, Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397
(1997), the Court reaffirmed this proposition. "We have consistently refused to hold
municipalities liable under a theory of respondeat superior. . . . Instead, in Monell and
subsequent cases, we have required a plaintiff seeking to impose liability on a
municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused
plaintiffs injury." Bryan County, 520 U.S. at 403, 117 S.Ct. at 1388.
This "fault" requirement can generally be demonstrated in one of several ways.
First, plaintiff may attempt to prove the existence of a formal policy of the entity. This
was the situation at issue in Monell; the defendant "had as a matter of official policy
compelled pregnant employees to take unpaid leaves of absence before such leaves were
required for medical reasons." Monell, 436 U.S. at 661. These types of situations are
comparatively rare. However, when these challenges do arise, many of the often difficult
issues which often arise in establishing governmental liability, such as establishing a
causal connection, are not present. Generally, this type of a Monell claim may be
possible where the official policy on its face is unconstitutional. "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 plaintiffs rights and was taken
with deliberate indifference as to its known or obvious consequences." Pietrafexo v.
Lawrence County, 452 F.3d 978, 982 (8th Cir. 2006), quoting Board of County Comm 'rs
v. Brown, 520 U.S. 397,407 (1997).
D. AVOIDING UNCONSTITUTIONAL CUSTOM OR PRACTICE CLAIMS
Municipal liability may also be established if the plaintiff is able to demonstrate
that the conduct which caused the constitutional deprivation was the result of an entity's
custom or practice. 16
16
The Eighth Circuit has emphasized that the terms "policy" and "custom" are not
interchangeable. A municipal policy "is an official policy, a deliberate choice of a
guiding principle or procedure made by the municipal official who has final authority
regarding such matters." Kuha v. City of Minnetonka, 365 F.3d 590, 604 (8th Cir. 2004).
A policy includes such things as a "policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers." Monell v. Dep 't. of Social
Services, 436 U.S. 658, 690 (1978). In discussing what constitutes a custom of a local
governmental entity, the Supreme Court has stated "an act performed pursuant to a
'custom' that has not been formally approved by an appropriate decisionmaker may fairly
{00254489}
47
Congress included customs and usages [in § 1983] because of the
persistent and widespread discriminatory practices of state officials. . . .
Although not authorized by written law, such practices of state officials
could well be so permanent and well-settled as to constitute a "custom or
usage" with the force of law.
Monell, 436 U.S. at 691, quoting Adickes v. S.H Kress & Co., 398 U.S. 144, 167-68
(1970). See also Bryan County, 520 U.S. at 404 ("an act performed pursuant to a
'custom' that has not been formally approved by an appropriate decisionmaker may fairly
subject a municipality to liability on the theory that the relevant practice is so widespread
as to have the force of law").
1. ELEMENTS OF A CUSTOM OR PRACTICE CLAIM
In implementing and attempting to follow Monell's statement concerning
potential municipal liability resulting from existing customs, the Circuits have generally
adopted similar tests against which to analyze these claims. These types of claims
generally require establishment of the following elements:
1.
The existence of a continuing widespread, persistent pattern of
unconstitutional misconduct by the governmental entity's
employees;
2.
Deliberate indifference to or tacit authorization of such conduct by
the entity's policymaking officials after actual or constructive
notice to the official of that misconduct;
3.
That the custom was the moving force behind the constitutional
deprivation suffered by plaintiff.
Jane Doe "A" v. The Special School District of St. Louis County, 901 F.2d 642, 646 (8th
Cir. 1990).
a. How Frequency is a "Pattern"?
There have been occasions when courts have considered how often events can
occur before there is a "pattern" sufficient to create potential liability. In other words,
"how often is often enough?"
In Thelma D. ex rei. Delores A. v. Board of Education, 934 F.2d 929, 933 (8th
Cir. 1991), the Eighth Circuit concluded that "five complaints scattered over sixteen
years cannot, as a matter of law, be said to compromise a persistent and widespread
pattern of unconstitutional misconduct." Similarly, in Jane Doe "A" ex rei. Jane Doe
subject a municipality to liability on the theory that the relevant practice is so widespread
as to have the force oflaw." Bryan County, 520 U.S. at 404 (emphasis added).
{00254489}
48
"B" v. Special School Dist., 901 F.2d 642, 646 (8th Cir. 1990), the court concluded that
even though various defendants were notified of isolated incidents occurring over a twoyear period of time, no pattern of behavior was shown. In Jojola v. Chavez, 55 F.3d 488
(lOth Cir. 1995), the court found--as a matter oflaw--no pattern of violations existed in
the face of allegations that the custodian--a 19 year employee of the school district--had:
(1) a parent had informed the school principal that the custodian (who subsequently
molested a student) had put a hole in the wall of the girls' locker room through which he
watched girls using the facility; (2) rumors had circulated at the school concerning the
custodian's improper sexual behavior; (3) the school authorities should have been alerted
by the rumors; (4) a parent had complained to a previous principal that the custodian had
made sexual comments to girls at the school; (5) the custodian had been removed from
his position as a school bus driver because of inappropriate behavior with a preteen
female student, and; (6) the custodian was transferred to the school after he had unhooked
brassieres of girls in other schools.
We believe these allegations are insufficient to meet the first requirement
of Gates. Chavez was employed by the school district for nineteen years.
The plaintiffs allege four incidents and other rumors, none of which we
believe demonstrates the requisite pattern of behavior necessary to support
imposing liability.
Jojola, 55 F.3d at 491.
b. Policy Can be Shown by Ignoring Complaints
The requisite fault of the entity (i.e., the existence of a custom) can be established
in a variety of ways. One of these is to demonstrate that, despite receiving complaints or
other reports of improper conduct by its employees, the entity has either turned a "blind
eye" or failed to adequately investigate those complaints.
For example, in Vann v. City of New York, 72 F.3d 1040 (2nd Cir. 1995), the
Court concluded municipal liability could be imposed based on a city's custom of failing
to properly supervise and follow the progress of officers against whom prior complaints
of brutality had been made.
During his first two years with the New York City Police Department, Officer
Morrison had several complaints lodged against him regarding his activity and conduct
toward the public. As a result, he was officially relieved of his firearms and placed on
restricted duty pending a psychological evaluation. Vann, 72 F.3d at 1043.
While Morrison was later returned to full-duty status, he continued to receive
complaints concerning his work performance and inability to control his aggressive
tendencies.
These complaints included allegations that he had used unnecessary and
excessive force in dealing with civilians.
{00254489}
49
After these other complaints had been lodged, the encounter between plaintiff
Vann and Officer Morrison occurred. Plaintiff accused Morrison of uttering racial
epithets and employing excessive force following an automobile accident.
The City contended on appeal they were entitled to summary judgment because,
inter alia, it had in place a comprehensive system for monitoring the performance of their
police officers and, therefore, it could not have been deliberately indifferent to allegations
of police misconduct. Vann, 72 F.3d at 1045. The Court of Appeals disagreed,
concluding the plaintiff had presented sufficient evidence to raise a jury issue as to
whether the City had a custom of ignoring problem police officers.
Taken in the light most favorable to Vann, the evidence of the
Department's system for dealing with problem officers in the early stages
of their difficulties highlights the paucity of its monitoring system after
such officers were reinstated. The deposition testimony indicated that,
after a problem officer was restored to full-duty status, the Department's
supervisory units paid virtually no attention to the filing of new
complaints against such officers, even though such filings should have
been red-flag warnings of possibly renewed and future misconduct. [The
Department Advocate's Office], which monitored officers who were on
disciplinary probation, was typically not informed by [the Central
Personnel Index], by precinct commanders, or by the [Civilian Complaint
Review Board] as to the filing of civilian complaints. In any event, DAO
woefully understaffed for any significant monitoring function, was not
concerned that officers they monitored were the subject of new civilian
complaints. And the director of [the Department's Psychological Services
Unit], who acknowledged that the receipt of new complaints was
significant for the evaluation of the likelihood that the problem officer
would engage in future wrongful conduct, also testified that she
"typically" did not tell the commanders to alert DAO or [the
Psychological Services Unit] to the receipt of such complaints.
Vann, 72 F.3d at 1050.
Citing Vann, the Eighth Circuit has stated, "[e]vidence that a police department
has failed to investigate previous incidents similar to the incident in question may support
a finding that a municipal custom exists, and that such a custom encourages or allows
officers to use excessive force without concern for punishment." Mettler v. Whitledge,
165 F.3d 1197, 1205 (8th Cir. 1999). Similarly, in Spell v. McDaniel, 824 F.2d 1380 (4th
Cir. 1986), a substantial award against a city was affirmed because, in part, the city had
failed to follow-up on complaints of police misconduct.
Plaintiff presented testimony from a number of lay witnesses describing acts of
brutality by the city's police officers which were similar to those made by the plaintiff.
However, the plaintiffs evidence demonstrated those complaints were not acted upon. In
fact, the city's former legal advisor to the police department testified that disciplinary
{00254489}
50
procedures within the Department had broken down to the point of being disregarded.
Spell, 824 F.2d at 1393. Accordingly, because the city had failed to properly follow-up
on and respond to prior allegations of misconduct, there was sufficient evidence to
support a conclusion that an unconstitutional custom of ignoring complaints against
officers existed.
A related issue sometimes arises when there is evidence that the municipal
employees have falsified their reports to "cover-up" misdeeds. If there is no evidence
that the policymakers were aware of or otherwise condoned this practice, a sometimes
compelling argument can be made that these instances of "cover-up" demonstrate that no
unconstitutional city policy or custom was present.
Nor is there any evidence that the Director, the Mayor or the City Council
knew of or disregarded a practice of excessive force by D.C. correctional
officers. In fact, Gunn's testimony suggests otherwise. First Gunn said
that he and his supervisory officers covered up the use of force through
falsified disciplinary reports. Cover-up efforts at relatively low levels in
the hierarchy not only reduce the likelihood that policymakers will learn
of the covert practice, but suggest a belief by the subordinates that their
behavior violates established policy.
Triplett v. District of Columbia, 108 F.3d 1450, 1454 (D.C. Cir. 1997).
E. Failure to Train/Hiring Decisions
1.
INTRODUCTION
Municipal decisions regarding the hiring of police officers and the types of
training provided to them have often been challenged in § 1983 litigation.
Failure to train claims can arise under two different scenarios. In Canton, the
Supreme Court left open the possibility that a failure to train claim can succeed without
showing a pattern of constitutional violations. In other words, a single violation of a
federal right, accompanied by a showing that a municipality has failed to train its
employees to handle recurring situations presenting an obvious potential for such a
violation, could trigger municipal liability. Canton, 489 U.S. at 390 ("[I]t may happen
that in light of the duties assigned to specific officers or employees the need for more or
different training is so obvious ... that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need"). The example provided by the
Court was a city's decision to equip police officers with firearms and a failure to provide
appropriate training with regard to when they may be used to apprehend fleeing suspects.
Such claims can also be presented where municipal policymakers know or should
know that their officers are handling situations in an unconstitutional manner and then
fail to take appropriate corrective measures (i.e., provide additional and appropriate
training).
{00254489}
51
"If a [training] program does not prevent constitutional violations,
municipal decisionmakers may eventually be put on notice that a new
program is called for. Their continued adherence to an approach that they
know or should know has failed to prevent tortious conduct by employees
may establish the conscious disregard for the consequences of their action
-the "deliberate indifference" -necessary to trigger municipal liability."
Bryan County, 520 U.S. at 407 (1997). 17
2.
TRAINING FOR "COMMON SENSE"?
There are occasions when allegations concerning the need for training relate to
matters that would normally be considered as calling for "common sense." For example,
does a municipality need to train its officers not to commit perjury or to refrain from
engaging in acts of sexual assault? While the answer might at first glance appear
obvious, it often depends on the types of prior problems, if any, that the municipality has
experienced.
The Second Circuit has developed a comprehensive test against which all failure
to train claims (including those involving issues of "common sense") are to be judged.
1.
First, the plaintiff must show that a policymaker knows "to a moral
certainty" that her employees will confront a given situation.
Thus, a policymaker does not exhibit deliberate indifference by
failing to train employees for rare or unforeseen events.
2.
Second, the plaintiff must show that the situation either presents
the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of
employees mishandling the situation.
3.
Finally, the plaintiff must show that the wrong choice by the city
employee will frequently cause the deprivation of a citizen's
constitutional rights.
Walker v. City of New York, 974 F.2d 293, 297-98 (2nd Cir. 1992), cert. denied, 507 U.S.
961 (1993). Utilizing this three-prong test, the Second Circuit recognized that a claim
17
With regard to individuals responsible for training decisions, the Eight Circuit has held
the following:
We recognize that "although the doctrine of respondeat superior does not
apply to § 1983 cases, a§ 1983 claimant may maintain a theory of direct
liability against a prison or other official if that official fails to properly
train, supervise, direct or control the actions of a subordinate who causes
the injury."
Johnson v. Lockhart, 941 F.2d 705, 707 (8th Cir. 1991).
{00254489}
52
that the city should have trained its officers not to commit perjury could not prevail,
unless there existed evidence to support a contention that the city was aware of prior
instances of its officers having lied under oath.
It is not enough to show that a situation will arise and that taking the
wrong course in that situation will result in injuries to citizens. As laid out
above, City of Canton also requires a likelihood that the failure to train or
supervise will result in the officer making the wrong decision. Where the
proper response- to follow one's oath, not to commit the crime of perjury,
and to avoid prosecuting the innocent - is obvious to all without training or
supervision, then the failure to train or supervise is generally not "so
likely" to produce a wrong decision as to support an inference of
deliberate indifference by city policymakers to the need to train or
supervise.
That general rule, however, does not apply in every case. While it is
reasonable for city policymakers to assume their employees possess
common sense, where there is a history of conduct rendering this
assumption untenable, city policymakers may display deliberate
indifference by doing so. If Walker can produce some evidence the
policymakers were aware of a pattern of perjury by police officers but
failed to institute appropriate training or supervision, his claim can survive
summary judgment.
Walker, 974 F.2d at 299-300.
For similar reasons, it has been held that a municipality is not constitutionally
required to train its police officers to refrain from sexually molesting young girls, even
though the City had prior knowledge that the officer had made inappropriate sexual
comments regarding other girls.
Slackness, laxness, cronyism, confusion and dumbness there were in
profusion; what is lacking is an obvious risk that Waymire [the police
officer] was a child molester. All that was obvious was that he
commented to [another individual] about her 13-year-old daughter being
sexy. Such a comment - in context a piece of sexual badinage with the
mother - is not the equivalent of a threat to commit criminal acts upon that
or any other 13-year-old. Men are aware of pubescent girls, and vulgar
men comment on or even to them. If the vulgar man then has sex with
such a girl, someone who knew of the comment could not be thought to
have overlooked an obvious danger to her. The Town's officials had in
fact no reason to believe that Waymire was molesting or going to molest
any teenaged girl, and so the Town cannot be held liable under§ 1983.
West v. Waymire, 114 F.3d 646, 652 (7th Cir. 1997).
{00254489}
53
Similarly, the Sixth Circuit has recently held that a single complaint of sexual
harassment against an officer is not sufficient to put the City on notice that the officer
would engage in other unconstitutional conduct. Stemler v. City of Florence, 126 F.3d
856, 870 (6th Cir. 1997). In other words, in order to maintain a viable failure to train
claim, the plaintiff must demonstrate the existence of a need for additional training based
on a pattern of similar prior misconduct. See also Sewell v. Town of Lake Hamilton, 117
F.3d 488, 490 (11th Cir. 1997) (adopting test in Walker and concluding that in absence of
evidence of prior problems, municipality not liable under § 1983 for sexual assault of
police officer).
In Larson by Larson v. Miller, 76 F.3d 1446 (8th Cir. 1996), the court
summarized what a plaintiff must show with regard to both a failure to train and a
"failure to receive, investigate, and act" claim.
To establish liability on the part of PLSD for its failure to adequately train
its employees to report and prevent the sexual abuse of handicapped
children, the plaintiffs must prove that PLSD's "failure to train its
employees in a relevant respect evidences a 'deliberate indifference' to the
rights of the students." [Thelma D. by Delores A v. Board of Educ., 934
F.2d 929, 934 (8th Cir. 1991)] The Larsons must prove that PLSD "had
notice that its procedures were inadequate and likely to result in a
violation of constitutional rights." Id. As the Larsons accurately point
out, notice of a pattern of unconstitutional behavior need not be shown
where the failure to train employees "is so likely to result in a violation of
constitutional rights that the need for training is patently obvious." Id.
Larson, 76 F.3d at 1453-54.
In Habiger v. City of Fargo, 80 F.3d 289 (8th Cir. 1996), the court gave support
to a proposition that if a Court imposed TRO has gone into effect three days before an
event and the plaintiff claimed the City was liable on a "failure to train" theory, there was
not sufficient time for the City to have properly trained its personnel on how to respond
and react to that TRO and, therefore, no basis for such a claim against the City. Habiger,
80 F.3d at 297.
In Pena v. Leombruni, 200 F.3d 1031 (7th Cir. 1999) the Court was presented
with a situation in which it was alleged the Sheriffs Department failed to properly train
its deputies how to respond to an individual "acting crazy" (apparently because he was
high on cocaine) and was threatening officers with a "chunk of concrete." In affirming
the award of a directed verdict in favor of the officer who shot and killed the suspect, the
Court held:
Circumstances can alter cases. If Winnebago County had seen a rash of
police killings of crazy people and it was well understood that these
killings could have been avoided by the adoption of measures that would
adequately protect the endangered police, then the failure to take those
{00254489}
54
measures might, we may assume without having to decide, be found to
manifest deliberate indifference to the rights of such people. (Citations
omitted.) But the plaintiffs made no effort to establish the premise of such
an argument.
Pena v. Leombruni, 200 F.3d 1031, 1033-34 (7th Cir. 1999)
In defending these types of claims, it is also important to look at what the
response of the governmental entity has been to prior complaints. This is important
because the municipality's liability is judged against a "deliberate indifference" standard.
Where the municipality responds to the complaints in a meaningful fashion, the
deliberate indifference standard cannot be met. For example, in Andrews v. Fowler, 98
F.3d 1069 (8th Cir. 1996), the court noted that in response to prior complaints, the
officers against whom those complaints had been made were asked to resign. The court
stated that corrective action was "strong evidence that the city had a policy or custom of
taking adequate remedial action to remove police officers accused of sexual misconduct
with minors." Andrews, 98 F.3d at 1075.
F. Exhaustion of Available Remedies
In 1995, Congress passed the "Prison Litigation Reform Act of 1995" (the
"PLRA"). The impact of this federal legislation on reducing the case load of prisoner
cases in the federal court system has been substantial. On of the primary reasons for this
is the statutory requirement that inmates must exhaust all available administrative
remedies available to them before filing suit. Specifically, 42 U.S.C. § 1997(e)(a)
provides, "No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted." 42 USC § 1997e(a). 18
As a result, the Supreme Court has held that if the jail or prison has a grievance
process in place, the PLRA requires that all claims/issues touching on jail conditions including medical care, violence and religious freedom issues - must have been
completed the grievance process before those issues can be the subject of federal
litigation. This is true even though the grievance procedure does not make any provision
for the payment of money to plaintiff if his grievance is sustained. Booth v. Churner, 532
u.s. 731,733-34 (2001).
And if the grievance policy has a time limitation for initiating the grievance
policy, it is in essence a new, and much shorter, statute of limitation. 19 See Jernigan v.
18
Missouri has a similar exhaustion statute. R.S.Mo. § 506.384.1 provides, "No civil
action may be brought by an offender, except for a constitutional deprivation, until all
administrative remedies are exhausted."
19
In Missouri, civil rights claims brought under 42 USC § 1983 are governed by a 5-year
statute oflimitation. Wilson v. Garcia, 471 U.S. 261, 280 (1985).
{00254489}
55
Stuchell,304 F.3d 1030, 1032 (lOth Cir. 2002) ("[a]n inmate who begins the grievance
process but does not complete it is barred from pursuing a§ 1983 claim under the PLRA
for failure to exhaust his administrative remedies); Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002) ("[t]o exhaust remedies, a prisoner must file complaints and appeals
in the place, and at the time, the prison's administrative rules require"); Hartsfield v.
Vidor, 199 F.3d 305, 309 (6th Cir. 1999) ("inmate cannot simply fail to file a grievance or
abandon the process before completion and claim that he has exhausted his remedies or
that it is futile for him to do so because his grievance is now time-barred under the
regulations").
1.
EXAMPLE OF GRIEVANCE POLICY
The establishment of a viable grievance policy can be relatively easy. However,
if put into place, it must be followed by both the inmate and staff if it is to have the
intended effect of trying to reduce viability of inmate lawsuits. An example of a
grievance procedure recently used to defeat an inmate's federal civil rights lawsuit is the
Platte County Sheriffs Office's policy. Specifically, the Inmate Handbook provided:
You should file a grievance with the Division Commander if you feel you
have been subjected to abuse or abridgment while incarcerated. All
grievances must be submitted in writing on an inmate request form
addressed to the Division Commander. The word "Grievance" must be
written on the top of your inmate request form. You must file your
grievance within forty-eight (48) hours of the abuse or abridgement you
are reporting.
The Division Commander or his/her designee will
investigate your grievance and resolve any issues found. You will be
notified of the grievance findings in writing only.
If you feel the Division Commander did not adequately address your
grievance, you may file a Grievance Appeal (thereby appealing the
Division Commander's decision/actions) to the Sheriff. All Grievance
Appeals must be submitted in writing on an inmate request form addressed
to the Sheriff. The word "Grievance Appeal" must be written at the top of
your inmate request form. You must file your grievance within forty-eight
(48) hours of receiving written notification of the Division Commander's
findings/actions. The Sheriff will investigate your grievance and resolve
any issues found. You will be notified of the Grievance Appeal findings
in writing only.
Your failure to exhaust each appellate level in the specified order and
described manner will disqualify you from the grievance process.
A plaintiff recently filed suit in federal court challenging the conditions of his
confinement in the Platte County Jail (complaining he didn't receive his prescribed
medications). Because plaintiff failed to exhaust the administrative remedies at the Platte
{00254489}
56
County Jail available to him (and because the Sheriff's Office was able to sufficiently
document that fact), plaintiff's claims were dismissed.
V. CONCLUSION
Inmates will always file lawsuits against Counties and Jailers. Recognizing that
fact, it is incumbent that all reasonable and appropriate steps be taken to try and reduce
the frequency with which those lawsuits are filed and, when they are, to give the County,
Sheriff and members of the Department the best chance of prevailing. This includes
understanding the legal underpinnings of these types of claims and taking appropriate
affirmative steps to ensure appropriate policies are created and procedures are followed.
{00254489}
57