|||SUPREME COURT OF THE UNITED STATES
62 U.S.L.W. 4446
|||June 6, 1994
|||DEE FARMER, PETITIONER
EDWARD BRENNAN, WARDEN, ET AL.
|||ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
|||Souter, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and Blackmun, Stevens, O'connor, Scalia, Kennedy, and Ginsburg, JJ.,
joined. Blackmun, J., and Stevens, J., filed Concurring opinions. Thomas,
J., filed an opinion Concurring in the judgment.
|||The opinion of the court was delivered by: Souter
|||Petitioner, a preoperative transsexual who projects feminine characteristics,
has been incarcerated with other males in the federal prison system, sometimes
in the general prison population but more often in segregation. Petitioner
claims to have been beaten and raped by another inmate after being transferred
by respondent federal prison officials from a correctional institute to
a penitentiary -- typically a higher security facility with more troublesome
prisoners -- and placed in its general population. Filing an action under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d
619, 91 S. Ct. 1999, petitioner sought damages and an injunction barring
future confinement in any penitentiary, and alleged that respondents had
acted with "deliberate indifference" to petitioner's safety in
violation of the Eighth Amendment because they knew that the penitentiary
had a violent environment and a history of inmate assaults and that petitioner
would be particularly vulnerable to sexual attack. The District Court granted
summary judgment to respondents, denying petitioner's motion under Federal
Rule of Civil Procedure 56(f) to delay its ruling until respondents complied
with a discovery request. It concluded that failure to prevent inmate assaults
violates the Eighth Amendment only if prison officials were "reckless
in a criminal sense," i.e., had "actual knowledge" of a potential
danger, and that respondents lacked such knowledge because petitioner never
expressed any safety concerns to them. The Court of Appeals affirmed.
|||1. A prison official may be held liable under the Eighth Amendment for
acting with "deliberate indifference" to inmate health or safety
only if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.
|||(a) Prison officials have a duty under the Eighth Amendment to provide
humane conditions of confinement. They must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must protect prisoners
from violence at the hands of other prisoners. However, a constitutional
violation occurs only where the deprivation alleged is, objectively, "sufficiently
serious," Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111
S. Ct. 2321, and the official has acted with "deliberate indifference"
to inmate health or safety. Pp. 5-7.
|||(b) Deliberate indifference entials something more than negligence, but
is satisfied by something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result. Thus, it is the
equivalent of acting recklessly. However, this does not establish the level
of culpability deliberate indifference entails, for the term recklessness
is not self-defining, and can take subjective or objective forms. Pp. 7-9.
|||(c) Subjective recklessness, as used in the , is the appropriate test
for "deliberate indifference." Permitting a finding of recklessness
only when a person has disregarded a risk of harm of which he was aware
is a familiar and workable standard that is consistent with the Cruel and
Unusual Punishments Clause as interpreted in this Court's cases. The Amendment
outlaws cruel and unusual "punishments," not "conditions,"
and the failure to alleviate a significant risk that an official should
have perceived but did not, while no cause for commendation, cannot be condemned
as the infliction of punishment under the Court's cases. Petitioner's invitation
to adopt a purely objective test for determining liability -- whether the
risk is known or should have been known -- is rejected. This Court's cases
"mandate inquiry into a prison official's state of mind," id.,
at 299, and it is no accident that the Court has repeatedly said that the
Eighth Amendment has a "subjective component." Pp. 10-13.
|||(d) The subjective test does not permit liability to be premised on obviousness
or constructive notice. Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412,
109 S. Ct. 1197, distinguished. However, this does not mean that prison
officials will be free to ignore obvious dangers to inmates. Whether an
official had the requisite knowledge is a question of fact subject to demonstration
in the usual ways, and a factfinder may conclude that the official knew
of a substantial risk from the very fact that it was obvious. Nor may an
official escape liability by showing that he knew of the risk but did not
think that the complainant was especially likely to be assaulted by the
prisoner who committed the act. It does not matter whether the risk came
from a particular source or whether a prisoner faced the risk for reasons
personal to him or because all prisoners in his situation faced the risk.
But prison officials may not be held liable if they prove that they were
unaware of even an obvious risk or if they responded reasonably to a known
risk, even if the harm ultimately was not averted. Pp. 13-19.
|||(e) Use of subjective test will not foreclose prospective injunctive relief,
nor require a prisoner to suffer physical injury before obtaining prospective
relief. The subjective test adopted today is consistent with the principle
that "one does not have to await the consummation of threatened injury
to obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S.
553, 67 L. Ed. 1117, 43 S. Ct. 658. In a suit for prospective relief, the
subjective factor, deliberate indifference, "should be determined in
light of the prison authorities' current attitudes and conduct," Helling
v. McKinney, 509 U.S. , : their attitudes and conduct at the time suit is
brought and persisting thereafter. In making the requisite showing of subjective
culpability, the prisoner may rely on developments that postdate the pleadings
and pretrial motions, as prison officials may rely on such developments
to show that the prisoner is not entitled to an injunction. A Court that
finds the Eighth Amendment's objective and subjective requirements satisfied
may grant appropriate injunctive relief, though it should approach issuance
of injunctions with the usual caution. A court need not ignore a prisoner's
failure to take advantage of adequate prison procedures to resolve inmate
grievances, and may compel a prisoner to pursue them. Pp. 19-21.
|||2. On remand, the District Court must reconsider its denial of petitioner's
Rule 56(f) discovery motion and apply the Eighth Amendment principles explained
herein. The court may have erred in placing decisive weight on petitioner's
failure to notify respondents of a danger, and such error may have affected
the court's ruling on the discovery motion, so that additional evidence
may be available to petitioner. Neither of two of respondents' contentions
-- that some of the officials had no knowledge about the confinement conditions
and thus were alleged to be liable only for the transfer, and that there
is no present threat that petitioner will be placed in a penitentiary --
is so clearly correct as to justify affirmance. Pp. 22-26.
|||Vacated and remanded.
|||JUSTICE SOUTER delivered the opinion of the Court.
|||A prison official's "deliberate indifference" to a substantial
risk of serious harm to an inmate violates the Eighth Amendment. See Helling
v. McKinney 509 U.S. (1993); Wilson v. Seiter, 501 U.S. 294,
115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Estelle v. Gamble, 429 U.S. 97,
50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). This case requires us to define
the term "deliberate indifference," as we do by requiring a showing
that the official was subjectively aware of the risk.
|||The dispute before us stems from a civil suit brought by petitioner, Dee
Farmer, alleging that respondents, federal prison officials, violated the
Eighth Amendment by their deliberate indifference to petitioner's safety.
Petitioner, who is serving a federal sentence for credit card fraud, has
been diagnosed by medical personnel of the Bureau of Prisons as a transsexual,
one who has " rare psychiatric disorder in which a person feels persistently
uncomfortable about his or her anatomical sex," and who typically seeks
medical treatment, including hormonal therapy and surgery, to bring about
a permanent sex change. American Medical Association, Encyclopedia of Medicine
1006 (1989); see also American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 74-75 (3d rev. ed. 1987). For several years before
being convicted and sentenced in 1986 at the age of 18, petitioner, who
is biologically male, wore women's clothing (as petitioner did at the 1986
trial), underwent estrogen therapy, received silicone breast implants, and
submitted to unsuccessful "black market" testicle-removal surgery.
See Farmer v. Haas, 990 F.2d 319, 320 (CA7 1993). Petitioner's precise appearance
in prison is unclear from the record before us, but petitioner claims to
have continued hormonal treatment while incarcerated by using drugs smuggled
into prison, and apparently wears clothing in a feminine manner, as by displaying
a shirt "off one shoulder," App. 112. The parties agree that petitioner
"projects feminine characteristics." Id., at 51, 74.
|||The practice of federal prison authorities is to incarcerate preoperative
transsexuals with prisoners of like biological sex, see Farmer v. Haas,
(supra) , at 320, and over time authorities housed petitioner in several
federal facilities, sometimes in the general male prison population but
more often in segregation. While there is no dispute that petitioner was
segregated at least several times because of violations of prison rules,
neither is it disputed that in at least one penitentiary petitioner was
segregated because of safety concerns. See Farmer v. Carlson, 685 F. Supp.
1335, 1342 (MD Pa. 1988).
|||On March 9, 1989, petitioner was transferred for disciplinary reasons
from the Federal Correctional Institute in Oxford, Wisconsin (FCI-Oxford),
to the United States Penitentiary in Terre Haute, Indiana (USP-Terre Haute).
Though the record before us is unclear about the security designations of
the two prisons in 1989, penitentiaries are typically higher security facilities
that house more troublesome prisoners than federal correctional institutes.
See generally Federal Bureau of Prisons, Facilities 1990. After an initial
stay in administrative segregation, petitioner was placed in the USP-Terre
Haute general population. Petitioner voiced no objection to any prison official
about the transfer to the penitentiary or to placement in its general population.
Within two weeks, according to petitioner's allegations, petitioner was
beaten and raped by another inmate in petitioner's cell. Several days later,
after petitioner claims to have reported the incident, officials returned
petitioner to segregation to await, according to respondents, a hearing
about petitioner's HIV-positive status.
|||Acting without counsel, petitioner then filed a Bivens complaint, alleging
a violation of the Eighth Amendment. See Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); Carlson v.
Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). As defendants,
petitioner named respondents: the warden of USP-Terre Haute and the Director
of the Bureau of Prisons (sued only in their official capacities); the warden
of FCI-Oxford and a case manager there; and the director of the Bureau of
Prisons North Central Region Office and an official in that office (sued
in their official and personal capacities). As later amended, the complaint
alleged that respondents either transferred petitioner to USP-Terre Haute
or placed petitioner in its general population despite knowledge that the
penitentiary had a violent environment and a history of inmate assaults,
and despite knowledge that petitioner, as a transsexual who "projects
feminine characteristics," would be particularly vulnerable to sexual
attack by some USP-Terre Haute inmates. This allegedly amounted to a deliberately
indifferent failure to protect petitioner's safety, and thus to a violation
of petitioner's Eighth Amendment rights. Petitioner sought compensatory
and punitive damages, and an injunction barring future confinement in any
penitentiary, including USP-Terre Haute. *fn1
|||Respondents filed a motion for summary judgment supported by several affidavits,
to which petitioner responded with an opposing affidavit and a cross-motion
for summary judgment; petitioner also invoked Federal Rule of Civil Procedure
56(f), asking the court to delay its ruling until respondents had complied
with petitioner's pending request for production of documents. Respondents
then moved for a protective order staying discovery until resolution of
the issue of qualified immunity, raised in respondents' summary judgment
|||Without ruling on respondents' request to stay discovery, the District
Court denied petitioner's Rule 56(f) motion and granted summary judgment
to respondents, concluding that there had been no deliberate indifference
to petitioner's safety. The failure of prison officials to prevent inmate
assaults violates the Eighth Amendment, the court stated, only if prison
officials were "reckless in a criminal sense," meaning that they
had "actual knowledge" of a potential danger. App. 124. Respondents,
however, lacked the requisite knowledge, the court found. " never expressed
any concern for his safety to any of . Since had no knowledge of any potential
danger to , they were not deliberately indifferent to his safety."
|||The United States Court of Appeals for the Seventh Circuit summarily affirmed
without opinion. We granted certiorari, 510 U.S. (1993), because Courts
of Appeals had adopted inconsistent tests for "deliberate indifference."
Compare, for example, McGill v. Duckworth, 944 F.2d 344, 348 (CA7 1991)
(holding that "deliberate indifference" requires a "subjective
standard of recklessness"), cert. denied, 503 U.S. (1992), with Young
v. Quinlan, 960 F.2d 351, 360-361 (CA3 1992) (" prison official is
deliberately indifferent when he knows or should have known of a sufficiently
serious danger to an inmate").
|||The Constitution "does not mandate comfortable prisons," Rhodes
v. Chapman, 452 U.S. 337, 349, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981),
but neither does it permit inhumane ones, and it is now settled that "the
treatment a prisoner receives in prison and the conditions under which he
is confined are subject to scrutiny under the Eighth Amendment." Helling,
509 U.S., at (slip op., at 5). In its prohibition of "cruel and unusual
punishments," the Eighth Amendment places restraints on prison officials,
who may not, for example, use excessive physical force against prisoners.
See Hudson v. McMillian, 503 U.S. 1 (1992). The Amendment also imposes duties
on these officials, who must provide humane conditions of confinement; prison
officials must ensure that inmates receive adequate food, clothing, shelter
and medical care, and must "take reasonable measures to guarantee the
safety of the inmates," Hudson v. Palmer, 468 U.S. 517, 526-527, 82
L. Ed. 2d 393, 104 S. Ct. 3194 (1984). See Helling, (supra) , at (slip op.,
at 5); Washington v. Harper, 494 U.S. 210, 225, 108 L. Ed. 2d 178, 110 S.
Ct. 1028 (1990); Estelle, 429 U.S., at 103. Cf. DeShaney v. Winnebago County
Dept. of Social Services, 489 U.S. 189, 198-199, 103 L. Ed. 2d 249, 109
S. Ct. 998 (1989).
|||In particular, as the lower courts have uniformly held, and as we have
assumed, "prison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners." Cortes-Quinones v. Jimenez-Nettleship,
842 F.2d 556, 558 (CA1) (internal quotation marks and citation omitted),
cert. denied, 488 U.S. 823 (1988); *fn2
see also Wilson v. Seiter, 501 U.S., at 303 (describing "the protection
[an inmate] is afforded against other inmates" as a "condition
of confinement" subject to the strictures of the Eighth Amendment).
Having incarcerated "persons demonstrated proclivities for antisocial
criminal, and often violent, conduct," Hudson v. Palmer, (supra) ,
at 526, having stripped them of virtually every means of self-protection
and foreclosed their access to outside aid, the government and its officials
are not free to let the state of nature take its course. Cf. DeShaney, (supra)
, at 199-200; Estelle, (supra) , at 103-104. Prison conditions may be "restrictive
and even harsh," Rhodes, (supra) , at 347, but gratuitously allowing
the beating or rape of one prisoner by another serves no "legitimate
penological objective," Hudson v. Palmer, (supra) , at 548 (STEVENS,
J., Concurring in part and Dissenting in part), any more than it squares
with "'evolving standards of decency,'" Estelle, (supra) , at
102 (quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct.
590 (1958) (plurality opinion)). Being violently assaulted in prison is
simply not "part of the penalty that criminal offenders pay for their
offenses against society." Rhodes, (supra) , at 347.
|||It is not, however, every injury suffered by one prisoner at the hands
of another that translates into constitutional liability for prison officials
responsible for the victim's safety. Our cases have held that a prison official
violates the Eighth Amendment only when two requirements are met. First,
the deprivation alleged must be, objectively, "sufficiently serious,"
Wilson, (supra) , at 298; see also Hudson v. McMillian, (supra) , at (slip
op., at 5); a prison official's act or omission must result in the denial
of "the minimal civilized measure of life's necessities," Rhodes,
(supra) , at 347. For a claim (like the one here) based on a failure to
prevent harm, the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm. See Helling, (supra) , at (slip
op., at 8). *fn3
|||The second requirement follows from the principle that "only the
unnecessary and wanton infliction of pain implicates the Eighth Amendment."
Wilson, 501 U.S., at 297 (internal quotation marks, emphasis and citations
omitted). To violate the Cruel and Unusual Punishments Clause, a prison
official must have a "sufficiently culpable state of mind." Ibid.;
see also id., at 302-303; Hudson v. McMillian, (supra) , at (slip op., at
5). In prison-conditions cases that state of mind is one of "deliberate
indifference" to inmate health or safety, Wilson, (supra) , at 302-303;
see also Helling, (supra) , at (slip op., at 6-7); Hudson v. McMillian,
(supra) , at (slip op., at 5); Estelle, (supra) , at 106, a standard the
parties agree governs the claim in this case. The parties disagree, however,
on the proper test for deliberate indifference, which we must therefore
undertake to define.
|||Although we have never paused to explain the meaning of the term "deliberate
indifference," the case law is instructive. The term first appeared
in the United States Reports in Estelle v. Gamble, 429 U.S., at 104, and
its use there shows that deliberate indifference describes a state of mind
more blameworthy than negligence. In considering the inmate's claim in Estelle
that inadequate prison medical care violated the Cruel and Unusual Punishments
Clause, we distinguished "deliberate indifference to serious medical
needs of prisoners," ibid., from "negligence in diagnosing or
treating a medical condition," id., at 106, holding that only the former
violates the Clause. We have since read Estelle for the proposition that
Eighth Amendment liability requires "more than ordinary lack of due
care for the prisoner's interests or safety." Whitley v. Albers, 475
U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986).
|||While Estelle establishes that deliberate indifference entails something
more than mere negligence, the cases are also clear that it is satisfied
by something less than acts or omissions for the very purpose of causing
harm or with knowledge that harm will result. That point underlies the ruling
that "application of the deliberate indifference standard is inappropriate"
in one class of prison cases: when "officials stand accused of using
excessive physical force." Hudson v. McMillian, 503 U.S., at (slipop.,
at 3-4); see also Whitley, (supra) , 320. In such situations, where the
decisions of prison officials are typically made "'in haste, under
pressure, and frequently without the luxury of a second chance,'" Hudson
v. McMillian, (supra) , at (slip op., at 3) (quoting Whitley, (supra) ,
at 320), an Eighth Amendment claimant must show more than "indifference,"
deliberate or otherwise. The claimant must show that officials applied force
"maliciously and sadistically for the very purpose of causing harm,"
503 U.S., at (internal quotation marks and citations omitted), or, as the
Court also put it, that officials used force with "a knowing willingness
that occur," 503 U.S., at (slip op., at 5) (internal quotation marks
and citation omitted). This standard of purposeful or knowing conduct is
not, however, necessary to satisfy the mens rea requirement of deliberate
indifference for claims challenging conditions of confinement; "the
very high state of mind prescribed by Whitley does not apply to prison conditions
cases." Wilson, (supra) , at 302-303.
|||With deliberate indifference lying somewhere between the poles of negligence
at one end and purpose or knowledge at the other, the Courts of Appeals
have routinely equated deliberate indifference with recklessness. *fn4
See, e.g., LaMarca v. Turner, 995 F.2d 1526, 1535 (CA11 1993); Manarite
v. Springfield, 957 F.2d 953, 957 (CA1); Redman v. County of San Diego,
942 F.2d 1435, 1443 (CA9 1991); McGill v. Duckworth, 944 F.2d at 347; Miltier
v. Beorn, 896 F.2d 848, 851-852 (CA4 1990); Martin v. White, 742 F.2d 469,
474 (CA8 1984); see also Springfield v. Kibbe, 480 U.S. 257, 269, 94 L.
Ed. 2d 293, 107 S. Ct. 1114 (1987) (O'CONNOR, J., Dissenting). It is, indeed,
fair to say that acting or failing to act with deliberate indifference to
a substantial risk of serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.
|||That does not, however, fully answer the pending question about the level
of culpability deliberate indifference entails, for the term recklessness
is not self-defining. The civil law generally calls a person reckless who
acts or (if the person has a duty to act) fails to act in the face of an
unjustifiably high risk of harm that is either known or so obvious that
it should be known. See Prosser and Keeton § 34, pp. 213-214; Restatement
(Second) of Torts § 500 (1965). The criminal law, however, generally permits
a finding of recklessness only when a person disregards a risk of harm of
which he is aware. See R. Perkins & R. Boyce, 850-851 (3d ed. 1982);
J. Hall, General Principles of 115-116, 120, 128 (2d ed. 1960) (hereinafter
Hall); American Law Institute, Model Penal Code § 2.02(2)(c), and Comment
3 (1985); but see Commonwealth v. Pierce, 138 Mass. 165, 175-178 (1884)
(Holmes, J.) (adopting an objective approach to criminal recklessness).
The standards proposed by the parties in this case track the two approaches
(though the parties do not put it that way): petitioner asks us to define
deliberate indifference as what we have called civil-law recklessness, *fn5
and respondents urge us to adopt an approach consistent with recklessness
in the . *fn6
|||We reject petitioner's invitation to adopt an objective test for deliberate
indifference. 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 something society
wishes to discourage, and if harm does result society might well wish to
assure compensation. The common law reflects such concerns when it imposes
tort liability on a purely objective basis. See Prosser and Keeton §§ 2,
34, pp. 6, 213-214; see also Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680;
United States v. Muniz, 374 U.S. 150, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963).
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.
|||In Wilson v. Seiter, we rejected a reading of the Eighth Amendment that
would allow liability to be imposed on prison officials solely because of
the presence of objectively inhumane prison conditions. See 501 U.S. at
299-302. As we explained there, our "cases mandate inquiry into a prison
official's state of mind when it is claimed that the official has inflicted
cruel and unusual punishment." Id., at 299. Although "state of
mind," like "intent," is an ambiguous term that can encompass
objectively defined levels of blameworthiness, see 1 W. LaFave & A.
Scott, Substantive §§ 3.4, 3.5, pp. 296-300, 313-314 (1986) (hereinafter
LaFave & Scott); United States v. Bailey, 444 U.S. 394, 404, 62 L. Ed.
2d 575, 100 S. Ct. 624 (1980), it was no accident that we said in Wilson
and repeated in later cases that Eighth Amendment suits against prison officials
must satisfy a "subjective" requirement. See Wilson, (supra) ,
at 298; see also Helling, 509 U.S., at (slip op., at 9); Hudson v. McMillian,
503 U.S., at (slip op., at 4-5). It is true, as petitioner points out, that
Wilson cited with approval Court of Appeals decisions applying an objective
test for deliberate indifference to claims based on prison officials' failure
to prevent inmate assaults. See 501 U.S., at 303 (citing Cortes-Quinones
v. Jimenez-Nettleship, 842 F.2d, at 560; and Morgan v. District of Columbia,
263 U.S. App. D.C. 69, 824 F.2d 1049, 1057-1058 (CADC 1987)). But Wilson
cited those cases for the proposition that the deliberate-indifference standard
applies to all prison-conditions claims, not to undo its holding that the
Eighth Amendment has a "subjective component." 501 U.S., at 298.
Petitioner's purely objective test for deliberate indifference is simply
incompatible with Wilson 's holding.
|||To be sure, the reasons for focussing on what a defendant's mental attitude
actually was (or is), rather than what it should have been (or should be),
differ in the Eighth Amendment context from that of the . Here, a subjective
approach isolates those who inflict punishment; there, it isolates those
against whom punishment should be inflicted. But the result is the same:
to act recklessly in either setting a person must "consciously disregard"
a substantial risk of serious harm. Model Penal Code, (supra) , § 2.02(2)(c).
|||At oral argument, the Deputy Solicitor General advised against frank adoption
of a criminal-law mens rea requirement, contending that it could encourage
triers of fact to find Eighth Amendment liability only if they concluded
that prison officials acted like criminals. See Tr. of Oral Arg. 39-40.
We think this concern is misdirected. Bivens actions against federal prison
officials (and their § 1983 counterparts against state officials) are civil
in character, and a court should no more allude to the when enforcing the
Cruel and Unusual Punishments Clause than when applying the Free Speech
and Press Clauses, where we have also adopted a subjective approach to recklessness.
See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688,
105 L. Ed. 2d 562, 109 S. Ct. 2678 (1989) (holding that the standard for
"reckless disregard" for the truth in a defamation action by a
public figure "is a subjective one," requiring that "the
defendant in fact entertained serious doubts as to the truth of his publication,"
or that "the defendant actually had a high degree of awareness of .
. . probable falsity") (internal quotation marks and citations omitted).
*fn7 That said,
subjective recklessness as used in the is a familiar and workable standard
that is consistent with the Cruel and Unusual Punishments Clause as interpreted
in our cases, and we adopt it as the test for "deliberate indifference"
under the Eighth Amendment.
|||Our decision that Eighth Amendment liability requires consciousness of
a risk is thus based on the Constitution and our cases, not merely on a
parsing of the phrase "deliberate indifference." And we do not
reject petitioner's arguments for a thoroughly objective approach to deliberate
indifference without recognizing that on the crucial point (whether a prison
official must know of a risk, or whether it suffices that he should know)
the term does not speak with certainty. Use of "deliberate," for
example, arguably requires nothing more than an act (or omission) of indifference
to a serious risk that is voluntary, not accidental. Cf. Estelle, 429 U.S.,
at 105 (distinguishing "deliberate indifference" from "accident"
or "inadvertence"). And even if "deliberate" is better
read as implying knowledge of a risk, the concept of constructive knowledge
is familiar enough that the term "deliberate indifference" would
not, of its own force, preclude a scheme that conclusively presumed awareness
from a risk's obviousness.
|||Because "deliberate indifference" is a judicial gloss, appearing
neither in the Constitution nor in a statute, we could not accept petitioner's
argument that the test for "deliberate indifference" described
in Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989),
must necessarily govern here. In Canton, interpreting 42 U.S.C. § 1983,
we held that a municipality can be liable for failure to train its employees
when the municipality's failure shows "a deliberate indifference to
the rights of its inhabitants." 489 U.S., at 389 (internal quotation
marks omitted). In speaking to the meaning of the term, we said that "it
may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights,
that the policymakers of the city can reasonably be said to have been deliberately
indifferent to the need." Id., at 390; see also id., at 390, n. 10
(elaborating). JUSTICE O'CONNOR's separate opinion for three Justices agreed
with the Court's "obviousness" test and observed that liability
is appropriate when policymakers are "on actual or constructive notice"
of the need to train, id., at 396 (opinion Concurring in part and Dissenting
in part). It would be hard to describe the Canton understanding of deliberate
indifference, permitting liability to be premised on obviousness or constructive
notice, as anything but objective.
|||Canton 's objective standard, however, is not an appropriate test for
determining the liability of prison officials under the Eighth Amendment
as interpreted in our cases. Section 1983, which merely provides a cause
of action, "contains no state-of-mind requirement independent of that
necessary to state a violation of the underlying constitutional right."
Daniels v. Williams, 474 U.S. 327, 330, 88 L. Ed. 2d 662, 106 S. Ct. 662
(1986). And while deliberate indifference serves under the Eighth Amendment
to ensure that only inflictions of punishment carry liability, see Wilson,
501 U.S., at 299-300, the "term was used in the Canton case for the
quite different purpose of identifying the threshold for holding a city
responsible for the constitutional torts committed by its inadequately trained
agents," Collins v. Harker Heights, 503 U.S. , (1992), a purpose the
Canton Court found satisfied by a test permitting liability when a municipality
disregards "obvious" needs. Needless to say, moreover, considerable
conceptual difficulty would attend any search for the subjective state of
mind of a governmental entity, as distinct from that of a governmental official.
For these reasons, we cannot accept petitioner's argument that Canton compels
the Conclusion here that a prison official who was unaware of a substantial
risk of harm to an inmate may nevertheless be held liable under the Eighth
Amendment if the risk was obvious and a reasonable prison official would
have noticed it.
|||We are no more persuaded by petitioner's argument that, without an objective
test for deliberate indifference, prison officials will be free to ignore
obvious dangers to inmates. Under the test we adopt today, an Eighth Amendment
claimant need not show that a prison official acted or failed to act believing
that harm actually would befall an inmate; it is enough that the official
acted or failed to act despite his knowledge of a substantial risk of serious
harm. Cf. 1 C. Torcia, Wharton's § 27, p. 141 (14th ed. 1978); Hall 115.
We doubt that a subjective approach will present prison officials with any
serious motivation "to take refuge in the zone between 'ignorance of
obvious risks' and 'actual knowledge of risks.'" Brief for Petitioner
27. Whether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, cf. Hall 118 (cautioning against
"confusing a mental state with the proof of its existence"), and
a factfinder may conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious. Cf. LaFave & Scott § 3.7,
p. 335 ("If the risk is obvious, so that a reasonable man would realize
it, we might well infer that [the defendant] did in fact realize it; but
the inference cannot be conclusive, for we know that people are not always
conscious of what reasonable people would be conscious of"). For example,
if an Eighth Amendment plaintiff presents evidence showing that a substantial
risk of inmate attacks was "longstanding, pervasive, well-documented,
or expressly noted by prison officials in the past, and the circumstances
suggest that the defendant-official being sued had been exposed to information
concerning the risk and thus 'must have known' about it, then such evidence
could be sufficient to permit a trier of fact to find that the defendant-official
had actual knowledge of the risk." Brief for Respondents 22. *fn8
|||Nor may a prison official escape liability for deliberate indifference
by showing that, while he was aware of an obvious, substantial risk to inmate
safety, he did not know that the complainant was especially likely to be
assaulted by the specific prisoner who eventually committed the assault.
The question under the Eighth Amendment is whether prison officials, acting
with deliberate indifference, exposed a prisoner to a sufficiently substantial
"risk of serious damage to his future health," Helling, 509 U.S.,
at (slip op., at 9), and it does not matter whether the risk comes from
a single source or multiple sources, any more than it matters 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. See Brief for Respondents
15 (stating that a prisoner can establish exposure to a sufficiently serious
risk of harm "by showing that he belongs to an identifiable group of
prisoners who are frequently singled out for violent attack by other inmates").
If, for example, prison officials were aware that inmate "rape was
so common and uncontrolled that some potential victims dared not sleep instead
. . . would leave their beds and spend the night clinging to the bars nearest
the guards' station," Hutto v. Finney, 437 U.S., 678, 681-682 n. 3,
57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978), it would obviously be irrelevant
to liability that the officials could not guess beforehand precisely who
would attack whom. Cf. Helling, (supra) , at (slip op., at 6-7) (observing
that the Eighth Amendment requires a remedy for exposure of inmates to "infectious
maladies" such as hepatitis and venereal disease "even though
the possible infection might not affect all of those exposed"); Commonwealth
v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) (affirming conviction for
manslaughter under a law requiring reckless or wanton conduct of a nightclub
owner who failed to protect patrons from a fire, even though the owner did
not know in advance who would light the match that ignited the fire or which
patrons would lose their lives); State v. Julius, 185 W. Va. 422, 431-432,
408 S.E.2d 1, 10-11 (1991) (holding that a defendant may be held criminally
liable for injury to an unanticipated victim).
|||Because, however, prison officials who lacked knowledge of a risk cannot
be said to have inflicted punishment, it remains open to the officials to
prove that they were unaware even of an obvious risk to inmate health or
safety. That a trier of fact may infer knowledge from the obvious, in other
words, does not mean that it must do so. Prison officials charged with deliberate
indifference might show, for example, that they did not know of the underlying
facts indicating a sufficiently substantial danger and that they were therefore
unaware of a danger, or that they knew the underlying facts but believed
(albeit unsoundly) that the risk to which the facts gave rise was insubstantial
|||In addition, prison officials who actually knew of a substantial risk
to inmate health or safety may be found 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," Helling, (supra) , at (slip op., at 7); see also Washington
v. Harper, 494 U.S., at 225; Hudson v. Palmer, 468 U.S., at 526-527, a standard
that incorporates due regard for prison officials' "unenviable task
of keeping dangerous men in safe custody under humane conditions."
Spain v. Procunier, 600 F.2d 189, 193 (CA9 1979) (Kennedy, J.); see also
Bell v. Wolfish, 441 U.S. 520, 547-548, 562, 60 L. Ed. 2d 447, 99 S. Ct.
1861 (1979). 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.
|||We address, finally, petitioner's argument that a subjective deliberate
indifference test will unjustly require prisoners to suffer physical injury
before obtaining court-ordered correction of objectively inhumane prison
conditions. "It would," indeed, "be odd to deny an injunction
to inmates who plainly proved an unsafe, life-threatening condition in their
prison on the ground that nothing yet had happened to them." Helling,
509 U.S., at . But nothing in the test we adopt today clashes with that
common sense. Petitioner's argument is flawed for the simple reason that
"one does not have to await the consummation of threatened injury to
obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S.
553, 593, 67 L. Ed. 1117, 43 S. Ct. 658 (1923). Consistently with this principle,
a subjective approach to deliberate indifference does not require a prisoner
seeking "a remedy for unsafe conditions await a tragic event [such
as an] actual assault before obtaining relief." Helling, (supra) at
(slip op., at 7).
|||In a suit such as petitioner's, insofar as it seeks injunctive relief
to prevent a substantial risk of serious injury from ripening into actual
harm, "the subjective factor, deliberate indifference, should be determined
in light of the prison authorities' current attitudes and conduct,"
Helling, (supra) , at (slip op., at 10): their attitudes and conduct at
the time suit is brought and persisting thereafter. An inmate seeking an
injunction on the ground that there is "a contemporary violation of
a nature likely to continue," United States v. Oregon Medical Society,
343 U.S. 326, 333, 96 L. Ed. 978, 72 S. Ct. 690 (1952), must adequately
plead such a violation; to survive summary judgment, he must come forward
with evidence from which it can be inferred that the defendant-officials
were at the time suit was filed, and are at the time of summary judgment,
knowingly and unreasonably disregarding an objectively intolerable risk
of harm, and that they will continue to do so; and finally to establish
eligibility for an injunction, the inmate must demonstrate the continuance
of that disregard during the remainder of the litigation and into the future.
In so doing, the inmate may rely, in the district court's discretion, on
developments that postdate the pleadings and pretrial motions, as the defendants
may rely on such developments to establish that the inmate is not entitled
to an injunction. *fn9
See Fed. Rule Civ. Proc. 15(d); 6A C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure §§ 1504-1510, pp. 177-211 (2d ed. 1990). If the court
finds the Eighth Amendment's subjective and objective requirements satisfied,
it may grant appropriate injunctive relief. See Hutto v. Finney, 437 U.S.,
at 685-688 and n. 9 (upholding order designed to halt "an ongoing violation"
in prison conditions that included extreme overcrowding, rampant violence,
insufficient food, and unsanitary conditions). Of course, a district court
should approach issuance of injunctive orders with the usual caution, see
Bell v. Wolfish, (supra) , at 562 (warning courts against becoming "enmeshed
in the minutiae of prison conditions"), and may, for example, exercise
its discretion if appropriate by giving prison officials time to rectify
the situation before issuing an injunction.
|||That prison officials' "current attitudes and conduct," Helling,
(supra) , at (slip op., at 10), must be assessed in an action for injunctive
relief does not mean, of course, that inmates are free to bypass adequate
internal prison procedures and bring their health and safety concerns directly
to court. "An appeal to the equity jurisdiction conferred on federal
district courts is an appeal to the sound discretion which guides the determinations
of courts of equity," Meredith v. Winter Haven, 320 U.S. 228, 235,
88 L. Ed. 9, 64 S. Ct. 7 (1943), and any litigant making such an appeal
must show that the intervention of equity is required. When a prison inmate
seeks injunctive relief, a court need not ignore the inmate's failure to
take advantage of adequate prison procedures, and an inmate who needlessly
bypasses such procedures may properly be compelled to pursue them. Cf. 42
U.S.C. § 1997e (authorizing district courts in § 1983 actions to require
inmates to exhaust "such plain, speedy, and effective administrative
remedies as are available"). Even apart from the demands of equity,
an inmate would be well advised to take advantage of internal prison procedures
for resolving inmate grievances. When those procedures produce results,
they will typically do so faster than judicial processes can. And even when
they do not bring constitutionally required changes, the inmate's task in
court will obviously be much easier.
|||Accordingly, we reject petitioner's arguments and hold that a prison official
may be held liable under the Eighth Amendment for denying humane conditions
of confinement only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures
to abate it.
|||Against this backdrop, we consider whether the District Court's Disposition
of petitioner's complaint, summarily affirmed without briefing by the Court
of Appeals for the Seventh Circuit, comports with Eighth Amendment principles.
We conclude that the appropriate course is to remand.
|||In granting summary judgment to respondents on the ground that petitioner
had failed to satisfy the Eighth Amendment's subjective requirement, the
District Court may have placed decisive weight on petitioner's failure to
notify respondents of a risk of harm. That petitioner "never expressed
any concern for his safety to any of ," App. 124, was the only evidence
the District Court cited for its Conclusion that there was no genuine dispute
about respondents' assertion that they "had no knowledge of any potential
danger to ," ibid. But with respect to each of petitioner's claims,
for damages and for injunctive relief, the failure to give advance notice
is not dispositive. Petitioner may establish respondents' awareness by reliance
on any relevant evidence. See (supra) , at 16.
|||The summary judgment record does not so clearly establish respondent's
entitlement to judgment as a matter of law on the issue of subjective knowledge
that we can simply assume the absence of error below. For example, in papers
filed in opposition to respondents' summary-judgment motion, petitioner
pointed to respondents' admission that petitioner is a "non-violent"
transsexual who, because of petitioner's "youth and feminine appearance"
is "likely to experience a great deal of sexual pressure" in prison.
App. 50-51, 73-74. And petitioner recounted a statement by one of the respondents,
then warden of the penitentiary in Lewisburg, Pennsylvania, who told petitioner
that there was "a high probability that could not safely function at
USP-Lewisburg," id., at 109, an incident confirmed in a published District
Court opinion. See Farmer v. Carlson, 685 F. Supp., at 1342; see also ibid.
("Clearly, placing plaintiff, a twenty-one year old transsexual, into
the general population at [USP-]Lewisburg, a [high-]security institution,
could pose a significant threat to internal security in general and to plaintiff
|||We cannot, moreover, be certain that additional evidence is unavailable
to petitioner because in denying petitioner's Rule 56(f) motion for additional
discovery the District Court may have acted on a mistaken belief that petitioner's
failure to notify was dispositive. Petitioner asserted in papers accompanying
the Rule 56(f) motion that the requested documents would show that "each
defendant had knowledge that USP-Terre Haute was and is, a violent institution
with a history of sexual assault, stabbings, etc., [and that] each defendant
showed reckless disregard for my safety by designating me to said institution
knowing that I would be sexually assaulted." App. 105-106. But in denying
the Rule 56(f) motion, the District Court stated that the requested documents
were "not shown by plaintiff to be necessary to oppose defendants'
motion for summary judgment," App. 121, a statement consistent with
the erroneous view that failure to notify was fatal to petitioner's complaint.
|||Because the District Court may have mistakenly thought that advance notification
was a necessary element of an Eighth Amendment failure-to-protect claim,
we think it proper to remand for reconsideration of petitioner's Rule 56(f)
motion and, whether additional discovery is permitted or not, for application
of the Eighth Amendment principles explained above. *fn10
|||Respondents urge us to affirm for reasons not relied on below, but neither
of their contentions is so clearly correct as to justify affirmance.
|||With respect to petitioner's damages claim, respondents argue that the
officials sued in their individual capacities (officials at FCI-Oxford and
the Bureau of Prisons North Central Region office), were alleged to be liable
only for their transfer of petitioner from FCI-Oxford to USP-Terre Haute,
whereas petitioner "nowhere alleges any reason for believing that these
officials, who had no direct responsibility for administering the Terre
Haute institution, would have had knowledge of conditions within that institution
regarding danger to transsexual inmates." Brief for Respondents 27-28.
But petitioner's Rule 56(f) motion alleged just that. Though respondents
suggest here that petitioner offered no factual basis for that assertion,
that is not a ground on which they chose to oppose petitioner's Rule 56(f)
motion below and, in any event, is a matter for the exercise of the District
Court's judgment, not ours. Finally, to the extent respondents seek affirmance
here on the ground that officials at FCI-Oxford and the Bureau of Prisons
regional office had no power to control prisoner placement at Terre Haute,
the record gives at least a suggestion to the contrary; the affidavit of
one respondent, the warden of USP-Terre Haute, states that after having
been at USP-Terre Haute for about a month petitioner was placed in administrative
segregation "pursuant to directive from the North Central Regional
Office" and a "request . . . by staff at FCI-Oxford." App.
94-95. Accordingly, though we do not reject respondents' arguments about
petitioner's claim for damages, the record does not permit us to accept
them as a basis for affirmance when they were not relied upon below. Respondents
are free to develop this line of argument on remand.
|||With respect to petitioner's claim for injunctive relief, respondents
argued in their merits brief that the claim was "foreclosed by [petitioner's]
assignment to administrative detention status because of his high-risk HIV-positive
condition, . . . as well as by the absence of any allegation . . . that
administrative detention status poses any continuing threat of physical
injury to him." Brief for Respondents 28-29. At oral argument, however,
the Deputy Solicitor General informed us that petitioner was no longer in
administrative detention, having been placed in the general prison population
of a medium-security prison. Tr. of Oral Arg. 25-26. He suggested that affirmance
was nevertheless proper because "there is no present threat" that
petitioner will be placed in a setting where he would face a "continuing
threat of physical injury," id., at 26, but this argument turns on
facts about the likelihood of a transfer that the District Court is far
better placed to evaluate than we are. We leave it to respondents to present
this point on remand.
|||The judgment of the Court of Appeals is vacated, and the case is remanded
for further proceedings consistent with this opinion.
|||JUSTICE BLACKMUN, Concurring.
|||I agree with Justice Stevens that inhumane prison conditions violate the
Eighth Amendment even if no prison official has an improper, subjective
state of mind. This Court's holding in Wilson v. Seiter, 501 U.S. 294, 115
L. Ed. 2d 271, 111 S. Ct. 2321 (1991), to the effect that barbaric prison
conditions may be beyond the reach of the Eighth Amendment if no prison
official can be deemed individually culpable, in my view is insupportable
in principle and is inconsistent with our precedents interpreting the Cruel
and Unusual Punishments Clause. Whether the Constitution has been violated
"should turn on the character of the punishment rather than the motivation
of the individual who inflicted it." Estelle v. Gamble, 429 U.S. 97,
116, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (STEVENS, J., Dissenting). Wilson
v. Seiter should be overruled.
|||Although I do not go along with the Court's reliance on Wilson in defining
the "deliberate indifference" standard, I join the Court's opinion,
because it creates no new obstacles for prison inmates to overcome, and
it sends a clear message to prison officials that their affirmative duty
under the Constitution to provide for the safety of inmates is not to be
taken lightly. Under the Court's decision today, prison officials may be
held liable for failure to remedy a risk so obvious and substantial that
the officials must have known about it, see ante, at 16, and prisoners need
not "'await a tragic event [such as an] actual assault before obtaining
relief,'" ante, at 19.
|||Petitioner is a transsexual who is currently serving a 20-year sentence
in an all-male federal prison for credit-card fraud. Although a biological
male, petitioner has undergone treatment for silicone breast implants and
unsuccessful surgery to have his testicles removed. Despite his overtly
feminine characteristics, and his previous segregation at a different federal
prison because of safety concerns, see Farmer v. Carlson, 685 F. Supp. 1335,
1342 (MD Pa. 1988), prison officials at the United States Penitentiary in
Terre Haute, Indiana, housed him in the general population of that maximum-security
prison. Less than two weeks later, petitioner was brutally beaten and raped
by another inmate in petitioner's cell.
|||Homosexual rape or other violence among prison inmates serves absolutely
no penological purpose. See Rhodes v. Chapman, 452 U.S. 337, 345-346, 69
L. Ed. 2d 59, 101 S. Ct. 2392 (1981), citing Gregg v. Georgia, 428 U.S.
153, 183, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (joint opinion) (the Eighth
Amendment prohibits all punishment, physical and mental, which is "totally
without penological justification"). "Such brutality is the equivalent
of torture, and is offensive to any modern standard of human dignity."
United States v. Bailey, 444 U.S. 394, 423, 62 L. Ed. 2d 575, 100 S. Ct.
624 (1980) (BLACKMUN, J., Dissenting). The horrors experienced by many young
inmates, particularly those who, like petitioner, are convicted of nonviolent
offenses, border on the unimaginable. Prison rape not only threatens the
lives of those who fall prey to their aggressors, but is potentially devastating
to the human spirit. Shame, depression, and a shattering loss of self-esteem,
accompany the perpetual terror the victim thereafter must endure. See Note,
Rape in Prison and AIDS: A Challenge for the Eighth Amendment Framework
of Wilson v. Seiter, 44 Stan. L. Rev. 1541, 1545 (1992). Unable to fend
for himself without the protection of prison officials, the victim finds
himself at the mercy of larger, stronger, and ruthless inmates. Although
formally sentenced to a term of incarceration, many inmates discover that
their punishment, even for nonviolent offenses like credit-card fraud or
tax evasion, degenerates into a reign of terror unmitigated by the protection
supposedly afforded by prison officials.*
|||The fact that our prisons are badly overcrowded and understaffed may well
explain many of the shortcomings of our penal systems. But our Constitution
sets minimal standards governing the administration of punishment in this
country, see Rhodes, 452 U.S., at 347, and thus it is no answer to the complaints
of the brutalized inmate that the resources are unavailable to protect him
from what, in reality, is nothing less than torture. I stated in Dissent
in United States v. Bailey :
|||"It is society's responsibility to protect the life and health of
its prisoners. 'When a sheriff or a marshall takes a man from the courthouse
in a prison van and transports him to confinement for two or three or ten
years, this is our act. We have tolled the bell for him. And whether we
like it or not, we have made him our collective responsibility. We are free
to do something about him; he is not' (emphasis in original). Address by
THE CHIEF JUSTICE, 25 Record of the Assn. of the Bar of the City of New
York 14, 17 (Mar. 1970 Supp.)." 444 U.S., at 423.
|||The Court in Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S.
Ct. 2321 (1991), held that any pain and suffering endured by a prisoner
which is not formally a part of his sentence -- no matter how severe or
unnecessary -- will not be held violative of the Cruel and Unusual Punishments
Clause unless the prisoner establishes that some prison official intended
the harm. The Court justified this remarkable Conclusion by asserting that
only pain that is intended by a state actor to be punishment is punishment.
See Wilson, 501 U.S., at 300 ("The source of the intent requirement
is not the predilections of this Court, but the Eighth Amendment itself,
which bans only cruel and unusual punishment. If the pain inflicted is not
formally meted out as punishment by the statute or the sentencing Judge,
some mental element must be attributed to the inflicting officer before
it can qualify") (emphasis in original).
|||The Court's analysis is fundamentally misguided; indeed it defies common
sense. "Punishment" does not necessarily imply a culpable state
of mind on the part of an identifiable punisher. A prisoner may experience
punishment when he suffers "severe, rough, or disastrous treatment,"
see, e.g., Webster's Third New International Dictionary 1843 (1961), regardless
of whether a state actor intended the cruel treatment to chastise or deter.
See also Webster's New International Dictionary of the English Language
1736 (1923) (defining punishment as "any pain, suffering, or loss inflicted
on or suffered by a person because of a crime or evil-doing") (emphasis
supplied); cf. Wilson, 501 U.S., at 300, quoting Duckworth v. Franzen, 780
F.2d 645, 652 (CA7 1985), cert. denied, 479 U.S. 816, 93 L. Ed. 2d 28, 107
S. Ct. 71 (1986) ("'The infliction of punishment is a deliberate act
intended to chastise or deter'").
|||The Court's unduly narrow definition of punishment blinds it to the reality
of prison life. Consider, for example, a situation in which one individual
is sentenced to a period of confinement at a relatively safe, well-managed
prison, complete with tennis courts and cable television, while another
is sentenced to a prison characterized by rampant violence and terror. Under
such circumstances, it is natural to say that the latter individual was
subjected to a more extreme punishment. It matters little that the sentencing
Judge did not specify to which prison the individuals would be sent; nor
is it relevant that the prison officials did not intend either individual
to suffer any attack. The conditions of confinement, whatever the reason
for them, resulted in differing punishment for the two convicts.
|||Wilson 's myopic focus on the intentions of prison officials is also mistaken.
Where a legislature refuses to fund a prison adequately, the resulting barbaric
conditions should not be immune from constitutional scrutiny simply because
no prison official acted culpably. Wilson failed to recognize that "state-sanctioned
punishment consists not so much of specific acts attributable to individual
state officials, but more of a cumulative agglomeration of action (and inaction)
on an institutional level." The Supreme Court -- Leading Cases, 105
Harv. L. Rev. 177, 243 (1991). The responsibility for subminimal conditions
in any prison inevitably is diffuse, and often borne, at least in part,
by the legislature. Yet, regardless of what state actor or institution caused
the harm and with what intent, the experience of the inmate is the same.
A punishment is simply no less cruel or unusual because its harm is unintended.
In view of this obvious fact, there is no reason to believe that, in adopting
the Eighth Amendment, the Framers intended to prohibit cruel and unusual
punishments only when they were inflicted intentionally. As Judge Noonan
|||"The Framers were familiar from their wartime experience of British
prisons with the kind of cruel punishment administered by a warden with
the mentality of a Captain Bligh. But they were also familiar with the cruelty
that came from bureaucratic indifference to the conditions of confinement.
The Framers understood that cruel and unusual punishment can be administered
by the failure of those in charge to give heed to the impact of their actions
on those within their care." Jordan v. Gardner, 986 F.2d 1521, 1544
(CA9 1993) (concurring opinion) (citations omitted) (emphasis supplied).
|||Before Wilson, it was assumed, if not established, that the conditions
of confinement are themselves part of the punishment, even if not specifically
"meted out" by a statute or Judge. See Wilson, 501 U.S., 294 at
306 at 306-309, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (White, J., Concurring),
citing Hutto v. Finney, 437 U.S. 678, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978);
Rhodes v. Chapman, 452 U.S. 337, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981).
We examined only the objective severity of the conditions of confinement
in the pre- Wilson cases, not the subjective intent of government officials,
as we found that "an express intent to inflict unnecessary pain is
not required. . . . Harsh 'conditions of confinement' may constitute cruel
and unusual punishment unless such conditions 'are part of the penalty that
criminal offenders pay for their offenses against society.'" Whitley
v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986),
quoting Rhodes, 452 U.S., at 347 (emphasis added). This initial approach,
which employed an objective standard to chart the boundaries of the Eighth
Amendment, reflected the practical reality that "intent simply is not
very meaningful when considering a challenge to an institution, such as
a prison system," Wilson, 501 U.S., at 310 (White, J., Concurring).
It also, however, demonstrated a commitment to the principles underlying
the Eighth Amendment. The Cruel and Unusual Punishments Clause was not adopted
to protect prison officials with arguably benign intentions from lawsuits.
The Eighth Amendment guarantees each prisoner that reasonable measures will
be taken to ensure his safety. Where a prisoner can prove that no such reasonable
steps were taken and, as a result, he experienced severe pain or suffering
without any penological justification, the Eighth Amendment is violated
regardless of whether there is an easily identifiable wrongdoer with poor
|||Though I believe Wilson v. Seiter should be overruled, and disagree with
the Court's reliance upon that case in defining the "deliberate indifference"
standard, I nonetheless join the Court's opinion. Petitioner never challenged
this Court's holding in Wilson or sought reconsideration of the theory upon
which that decision is based. More importantly, the Court's opinion does
not extend Wilson beyond its ill-conceived boundaries or erect any new obstacles
for prison inmates to overcome in seeking to remedy cruel and unusual conditions
of confinement. The Court specifically recognizes that "having incarcerated
people with demonstrated proclivities for criminally antisocial and, in
many cases, violent conduct, having stripped them of virtually every means
of self-protection and foreclosed their access to outside aid, the government
and its officials are not free to let the state of nature take its course."
Ante, at 6. The Court further acknowledges that prison rape is not constitutionally
tolerable, see ibid. ("being violently assaulted in prison is simply
not 'part of the penalty that criminal offenders pay for their offenses
against society'"), and it clearly states that prisoners can obtain
relief before being victimized, see ante, at 19 ("a subjective approach
to deliberate indifference does not require a prisoner seeking 'a remedy
for unsafe conditions await a tragic event [such as an] actual assault before
obtaining relief'"). Finally, under the Court's holding, prison officials
may be held liable for failure to remedy a risk of harm so obvious and substantial
that the prison officials must have known about it, see ante, at 16. The
opinion's clear message is that prison officials must fulfill their affirmative
duty under the Constitution to prevent inmate assault, including prison
rape, or otherwise face a serious risk of being held liable for damages,
see ante, at 15-18, or being required by a court to rectify the hazardous
conditions, see ante, at 19-21. As much as is possible within the constraints
of Wilson v. Seiter, the Court seeks to ensure that the conditions in our
Nation's prisons in fact comport with the "contemporary standard of
decency" required by the Eighth Amendment. See DeShaney v. Winnebago
Cty. Dept. of Social Services, 489 U.S. 189, 198-200, 103 L. Ed. 2d 249,
109 S. Ct. 998 (1989). Short of overruling Wilson v. Seiter, the Court could
do no better.
|||JUSTICE STEVENS, Concurring.
|||While I continue to believe that a state official may inflict cruel and
unusual punishment without any improper subjective motivation, see Estelle
v. Gamble, 429 U.S. 97, 116-117, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)
(dissenting opinion); Wilson v. Seiter, 501 U.S. 294, 306-307, 115 L. Ed.
2d 271, 111 S. Ct. 2321 (1991) (White, J., Concurring in judgment), I join
JUSTICE SOUTER's thoughtful opinion because it is faithful to our precedents.
|||JUSTICE THOMAS, Concurring in the judgment.
|||Prisons are necessarily dangerous places; they house society's most antisocial
and violent people in close proximity with one another. Regrettably, "some
level of brutality and sexual aggression among is inevitable no matter what
the guards do . . . unless all prisoners are locked in their cells 24 hours
a day and sedated." McGill v. Duckworth, 944 F.2d 344, 348 (CA7 1991).
Today, in an attempt to rectify such unfortunate conditions, the Court further
refines the "National Code of Prison Regulation," otherwise known
as the Cruel and Unusual Punishments Clause. Hudson v. McMillian, 503 U.S.
, (1992) (slip op., at 12) (THOMAS, J., Dissenting).
|||I adhere to my belief, expressed in Hudson and Helling v. McKinney, 509
U.S. (1993) (THOMAS, J., Dissenting), that "Judges or juries -- but
not jailers -- impose 'punishment.'" Id., at (slip op., at 4). "Punishment,"
from the time of the Founding through the present day, "has always
meant a 'fine, penalty, or confinement inflicted upon a person by the authority
of the law and the judgment and sentence of a court, for some crime or offense
committed by him.'" Id., at (slip op., at 2) (quoting Black's Law Dictionary
1234 (6th ed. 1990)). See also 2 T. Sheridan, A General Dictionary of the
English Language (1780) (defining "punishment" as "any infliction
imposed in vengeance of a crime"). Conditions of confinement are not
punishment in any recognized sense of the term, unless imposed as part of
a sentence. See Helling, (supra) , at (slip op., at 6) (THOMAS, J., Dissenting).
As an original matter, therefore, this case would be an easy one for me:
because the unfortunate attack that befell petitioner was not part of his
sentence, it did not constitute "punishment" under the Eighth
|||When approaching this case, however, we do not write on a clean slate.
Beginning with Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct.
285 (1976), the Court's prison condition jurisprudence has been guided,
not by the text of the Constitution, but rather by "evolving standards
of decency that mark the progress of a maturing society." Id., at 102
(internal quotation marks omitted). See also ante, at 6; Helling, supra
; Hudson, supra. I continue to doubt the legitimacy of that mode of constitutional
decisionmaking, the logical result of which, in this context, is to transform
federal Judges into superintendents of prison conditions nationwide. See
Helling, (supra) , at (slip op., at 4-6) (THOMAS, J., Dissenting). Although
Estelle loosed the Eighth Amendment from its historical moorings, the Court
is now unwilling to accept the full consequences of its decision and therefore
resorts to the "subjective" (state of mind) component of post-
Estelle Eighth Amendment analysis in an attempt to contain what might otherwise
be unbounded liability for prison officials under the Cruel and Unusual
Punishments Clause. Cf. McGill, (supra) , at 348.
|||Although I disagree with the constitutional predicate of the Court's analysis,
I share the Court's view that petitioner's theory of liability -- that a
prison official can be held liable for risks to prisoner safety of which
he was ignorant but should have known -- fails under even "a straightforward
application of Estelle." Helling, (supra) , at (slip op., at 6) (THOMAS,
J., Dissenting). In adopting the "deliberate indifference" standard
for challenges to prison conditions, Estelle held that mere "inadvertence"
or "negligence" does not violate the Eighth Amendment. 429 U.S.,
at 105-106. "From the outset, thus, we specified that the Eighth Amendment
does not apply to every deprivation, or even every unnecessary deprivation,
suffered by a prisoner, but only that narrow class of deprivations involving
'serious' injury inflicted by prison officials acting with a culpable state
of mind." Hudson, supra, at (slip op., at 4) (THOMAS, J., Dissenting).
We reiterated this understanding in Wilson v. Seiter, 501 U.S. 294, 305,
115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991), holding that "mere negligence"
does not constitute deliberate indifference under Estelle. See also, e.
g., Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078
(1986). Petitioner's suggested "should have known" standard is
nothing but a negligence standard, as the Court's Discussion implicitly
assumes. Ante, at 10-12. Thus, even under Estelle, petitioner's theory of
liability necessarily fails.
|||The question remains, however, what state of mind is sufficient to constitute
deliberate indifference under Estelle. Given my serious doubts concerning
the correctness of Estelle in extending the Eighth Amendment to cover challenges
to conditions of confinement, I believe the scope of the Estelle "right"
should be confined as narrowly as possible. Cf. Helling, (supra) , at (slip
op., at 6) (THOMAS, J., Dissenting). In Wilson, the Court has already held
that the highest subjective standard known to our Eighth Amendment jurisprudence
-- "malicious and sadistic" action "for the very purpose
of causing harm," Whitley, (supra) , at 320-321 (internal quotation
marks omitted) -- "does not apply to prison conditions cases."
Wilson, supra, at 303. The Court today adopts the next highest level of
subjective intent, actual knowledge of the type sufficient to constitute
recklessness in the , ante, at 10, 13, noting that "due regard"
is appropriate "for prison officials' 'unenviable task of keeping dangerous
men in safe custody under humane conditions.'" *fn1
Ante, at 18 (quoting Spain v. Procunier, 600 F.2d 189, 193 (CA9 1979) (Kennedy,
|||Even though the Court takes a step in the right direction by adopting
a restrictive definition of deliberate indifference, I cannot join the Court's
opinion. For the reasons expressed more fully in my Dissenting opinions
in Hudson and Helling, I remain unwilling to subscribe to the view, adopted
by ipse dixit in Estelle, that the Eighth Amendment regulates prison conditions
not imposed as part of a sentence. Indeed, "were the issue squarely
presented, . . . I might vote to overrule Estelle." Helling, (supra)
, at (slip op., at 6) (THOMAS, J., Dissenting). Nonetheless, the issue is
not squarely presented in this case. Respondents have not asked us to revisit
Estelle, and no one has briefed or argued the question. In addition to these
prudential concerns, stare decisis counsels hesitation in overruling dubious
precedents. See ibid. For these reasons, I concur in the Court's judgment.
*fn2 In doing
so, however, I remain hopeful that in a proper case the Court will reconsider
Estelle in light of the constitutional text and history.
also sought an order requiring the Bureau of Prisons to place petitioner
in a "co-correctional facility" (i.e., one separately housing
male and female prisoners but allowing coeducational programming). Petitioner
tells us, however, that the Bureau no longer operates such facilities, and
petitioner apparently no longer seeks this relief.
Court of Appeals decisions to the same effect include Villante v. Department
of Corrections, 786 F.2d 516, 519 (CA2 1986); Young v. Quinlan, 960 F.2d
351, 361-362 (CA3 1992); Pressly v. Hutto, 816 F.2d 977, 979 (CA4 1987);
Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (CA5 1986); Roland v. Johnson,
856 F.2d 764, 769 (CA6 1988); Goka v. Bobbitt, 862 F.2d 646, 649-650 (CA7
1988); Martin v. White, 742 F.2d 469, 474 (CA8 1984); Berg v. Kincheloe,
794 F.2d 457, 459 (CA9 1986); Ramos v. Lamm, 639 F.2d 559, 572 (CA10 1980);
LaMarca v. Turner, 995 F.2d 1526, 1535 (CA11 1993); and Morgan v. District
of Columbia, 263 U.S. App. D.C. 69, 824 F.2d 1049, 1057 (CADC 1987).
|||*fn3 At what
point a risk of inmate assault becomes sufficiently substantial for Eighth
Amendment purposes is a question this case does not present, and we do not
the poles lies "gross negligence" too, but the term is a "nebulous"
one, in practice typically meaning little different from recklessness as
generally understood in the civil law (which we discuss later in the text).
See W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on
Law of Torts § 34, p. 212 (5th ed. 1984) (hereinafter Prosser and Keeton).
Reply Brief for Petitioner 5 (suggesting that a prison official is deliberately
indifferent if he "knew facts which rendered an unreasonable risk obvious;
under such circumstances, the defendant should have known of the risk and
will be charged with such knowledge as a matter of law"); see also
Brief for Petitioner 20-21.
Brief for Respondents 16 (asserting that deliberate indifference requires
that a prison "official must know of the risk of harm to which an inmate
allusions to the would, of course, be proper during criminal prosecutions
under, for example, 18 U.S.C. § 242, which sets criminal penalties for deprivations
of rights under color of law.
the obviousness of a risk is not conclusive and a prison official may show
that the obvious escaped him, see (infra), at 18, he would not escape liability
if the evidence showed that he merely refused to verify underlying facts
that he strongly suspected to be true, or declined to confirm inferences
of risk that he strongly suspected to exist (as when a prison official is
aware of a high probability of facts indicating that one prisoner has planned
an attack on another but resists opportunities to obtain final confirmation;
or when a prison official knows that some diseases are communicable and
that a single needle is being used to administer flu shots to prisoners
but refuses to listen to a subordinate who he strongly suspects will attempt
to explain the associated risk of transmitting disease). When instructing
juries in deliberate indifference cases with such issues of proof, courts
should be careful to ensure that the requirement of subjective culpability
is not lost. It is not enough merely to find that a reasonable person would
have known, or that the defendant should have known, and juries should be
for example, the evidence before a district court establishes that an inmate
faces an objectively intolerable risk of serious injury, the defendants
could not plausibly persist in claiming lack of awareness, any more than
prison officials who state during the litigation that they will not take
reasonable measures to abate an intolerable risk of which they are aware
could claim to be subjectively blameless for purposes of the Eighth Amendment,
and in deciding whether an inmate has established a continuing constitutional
violation a district court may take such developments into account. At the
same time, even prison officials who had a subjectively culpable state of
mind when the lawsuit was filed could prevent issuance of an injunction
by proving, during the litigation, that they were no longer unreasonably
disregarding an objectively intolerable risk of harm and that they would
not revert to their obduracy upon cessation of the litigation.
District Court's opinion is open to the reading that it required not only
advance notification of a substantial risk of assault, but also advance
notification of a substantial risk of assault posed by a particular fellow
prisoner. See App. 124 (referring to "a specific threat to [a prisoner's]
safety"). The Eighth Amendment, however, imposes no such requirement.
See (supra) , at 16-17.
|||* Numerous court opinions document the pervasive violence among inmates
in our state and federal prisons. See, e.g., United States v. Bailey, 444
U.S. 394, 421, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980) (BLACKMUN, J., Dissenting);
McGill v. Duckworth, 944 F.2d 344, 348 (CA7 1991), cert. denied, U.S. (1992);
Redman v. County of San Diego, 942 F.2d 1435 (CA9 1991) (en banc), cert.
denied, U.S. (1992); Hassine v. Jeffes, 846 F.2d 169, 172 (CA3 1988); Alberti
v. Klevenhagen, 790 F.2d 1220, 1222 (CA5), clarified, 799 F.2d 992 (CA5
1986); Jones v. Diamond, 636 F.2d 1364, 1372 (CA5 1981), overruled on other
grounds, 790 F.2d 1174 (CA5 1986); Withers v. Levine, 615 F.2d 158, 161
(CA4), cert. denied, 449 U.S. 849, 66 L. Ed. 2d 59, 101 S. Ct. 136 (1980);
Little v. Walker, 552 F.2d 193, 194 (CA7 1977), cert. denied, 435 U.S. 932,
55 L. Ed. 2d 530, 98 S. Ct. 1507 (1978); Holt v. Sarver, 442 F.2d 304, 308
(CA8 1971), later proceeding sub. nom., Hutto v. Finney, 437 U.S. 678, 57
L. Ed. 2d 522, 98 S. Ct. 2565 (1978).
|||1 The facts of this case demonstrate how difficult that task can be. When
petitioner was taken out of general prison population for security reasons
at USP-Lewisburg, he asserted that he "did not need extra security
precautions" and filed suit alleging that placing him in solitary confinement
was unconstitutional. See Farmer v. Carlson, 685 F. Supp. 1335, 1342 (MD
Pa. 1988). Petitioner's present claim, oddly enough, is essentially that
leaving him in general prison population was unconstitutional because it
subjected him to a risk of sexual assault.
|||2 I do not read the remand portion of the Court's opinion to intimate
that the courts below reached the wrong result, especially because the Seventh
Circuit has long followed the rule of law the Court lays down today. See
McGill v. Duckworth, 944 F.2d 344 (CA7 1991); Duckworth v. Franzen, 780
F.2d 645 (CA7 1985). Rather, I regard it as a cautionary measure undertaken
merely to give the Court of Appeals an opportunity to decide in the first
instance whether the District Court erroneously gave dispositive weight
to petitioner's failure to complain to prison officials that he believed
himself at risk of sexual assault in general prison population. Ante, at
23-24. If, on remand, the Seventh Circuit concludes that the District Court
did not, nothing in the Court's opinion precludes the Seventh Circuit from
summarily affirming the entry of summary judgment in respondents' favor.
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