What is Deliberate Indifference?
When reviewing case law, the term "deliberate indifference" surfaces often when attorneys and judges are attempting to define when a state actor has violated an individuals constitutional right to be free from cruel and unusual punishments.
Deliberate Indifference is reserved for situations where a state actor purposefully disregards the health and safety of an inmate or person in custody. For example, in Harper v. Lawrence County, the Third Circuit Court of Appeals held that "a jail 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" in order to be found deliberately indifferent to an inmates health and safety.
Harper indicates that the failure to act, knowledge of a risk, and sufficient consciousness of the risk must be present for a person to be found deliberately indifferent. In fact, the Third Circuit further states that *"if a person is aware of a risk but indifferent to it, he is negligent. But if he is more than merely negligent , the doctrine of deliberate indifference applies."* Under this case law, to be deliberately indifferent, the state actor must have been "both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [must have] also drawn the inference."
The threshold to find an officer deliberately indifferent to a persons medical needs is extremely high. The officer must actually know of the risk and consciously ignore it. This means there must be evidence that the state actor knew of the risk and chose to ignore it. This goes beyond negligence or even gross negligence! Proving a deliberate indifference case usually requires expert testimony on whether medical care was below the standard of care.
This high threshold is usually to protect lower-level officers and nurses from liability for failing to act. For instance, nurses are constantly being sued under section 1983 for not acting, and these cases are thrown out of court because the standard has not been met.
History of Deliberate Indifference
The concept of deliberate indifference as a standard for culpability in prison cases finds its roots in earlier legal precedents that addressed the treatment of prisoners both in prisons and more broadly under the Eighth Amendment. The standard has been used in a range of claims beyond conditions of confinement allegations, leading to an expansive body of jurisprudence that today forms the foundation for all claims involving liability under a deliberate indifference standard. In the 1947 case, Trop v. Dulles, the United States Supreme Court defined what qualifies as "punishment" within the meaning of the cruel and unusual punishments clause. Trop involved the issue of whether loss of citizenship through desertion as a soldier, was a form of punishment. A soldier had been punished by court-marshal and deprived of his citizenship not through another act of punishment but as a result of that punishment. The Court stated: "The principle that civilized nations regard as superimposed upon the Eighth Amendment is that it forbids the unnecessary and wanton infliction of pain . . . So-called ‘punishments of the mind’ are not the sole forms of cruel and unusual punishment." Rejecting the argument that the loss of citizenship was not punishment because it was not physical, the Court concluded that "[d]eclaring one an outlaw, debarring him from social contracts, depriving him of esteem, of opportunity and of property, is punishment no matter what form it takes." This idea that punishment need not be physical was later carried over into the Court’s decision in Estelle v. Gamble. Estelle concerned the surgical treatment of an inmate’s hernia, which resulted in severe complications. The prisoner sued Tesley Gamble, the doctor responsible for treating his condition. Gamble had removed the hernia without complication, but failed to cauterize the incision properly, which resulted in an infection, pain, nausea, oliguric renal failure, and a blood clot. The Fifth Circuit affirmed the district court’s decision to dismiss the action, stating that "neither negligence nor gross negligence states a valid claim of constitutional deprivation," and that "no constitutional violation could have occurred in the absence of an intentional act or a criminally gross act." The district court’s decision was later reversed by the Supreme Court, although on different grounds, which held that "a prisoner does not forfeit all . . . constitutionally protected rights at the prison gate." Gamble’s holding is relevant in that the Court clearly defines the scope of the Eighth Amendment as extending beyond just punishment of the body and cellular confinement, and the decision lays the foundation for how the standard developed from a claim of negligence to a higher standard requiring a "depraved or reckless" indifference for the safety of inmates. From these earlier precedential cases, over time an "indifference" standard was developed in courts. A turning point in this evolution came in 1976 when in Estelle v. Gamble, the Fifth Circuit had determined that the test for whether prison medical care was a violation of the Eighth Amendment was whether it amounted to "deliberate indifference to serious medical needs" of the prisoners. While Gamble did not address the deliberate indifference standard, it cemented the idea that the Eighth Amendment did not concern itself solely with the infliction of pain, but also with the intent and harmful consequences stemming from "punishment". Four years later, in 1980, McCorkle v. Murphy formally expanded upon the holding in Gamble, defining the requirements for a cause of action for negligent prison medical treatment under the Eighth Amendment, thus providing the early framework for what would later come to be known as the deliberate indifference standard. The Court held that "deliberate indifference" requires (1) some knowledge of the subject by the prison staff, and (2) "obduracy and wantonness" on the part of staff, which included "conduct that is clearly outrageous, offends even the hardened sensibilities of civilized society, as well as being unnecessary, unjustified, and purposeless."
Key Deliberate Indifference Court Cases
Significant Court Cases Involving Deliberate Indifference
One of the earliest and most cited cases regarding deliberate indifference is Estelle v. Gamble, 429 U.S. 97 (1976). The case involved a Texas inmate who was denied medical treatment for a nagging back injury he sustained as a result of a work related accident. The 5-4 majority opinion written by Justice Potter Stewart found that the "deliberate indifference to serious medical needs of prisoners" is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.
Although subsequent cases have defined the parameters of the standard and other courts have opted for a less strict test, the Estelle v. Gamble case continues to be cited in prisoner litigation. For example, in Thanksgiving v. U.S., 219 F. Supp. 2d 841 (S.D. Ind. 2002), the U.S. District Court for the Southern District of Indiana found ineffective treatment of a two infected finger nail beds did not rise to the level of an Eighth Amendment violation. The limited time expertise of the county doctor and his refusal to refer the plaintiff to specialist did not demonstrate deliberate indifference where the plaintiff was receiving medication to treat his infection and was not forced to suffer delusions or hallucinations due to his untreated psychiatric conditions.
Also in 2002, in Jackson v. McVicar, 68 Fed. Appx. 804 (7th Cir. 2002), the U.S. Court of Appeals for the Seventh Circuit found absolutely no evidence that the defendants had been deliberately indifferent to the inmate’s serious medical needs. The plaintiff in the case had type 1 diabetes and was receiving insulin injections. In addition, the plaintiff had been diagnosed with hepatitis C and had received treatment with ribavirin and interferon. The plaintiff alleged the county refused to provide him with supplemental vitamin E or the prescribed U.S.P. 23 (the United States Pharmacopeia 23 was a publication that included standards for drug quality established in the U.S.). The plaintiff claimed he was thus denied his right to proper care and treatment under the Eighth Amendment’s deliberate indifference standard. The Seventh Circuit found the plaintiff could not prove the defendants were aware of his hepatitis C and found that the physicians assigned to the plaintiff and his case could not be held liable for challenging the wisdom of the U.S. P. 23’s treatment modalities.
The court in Bistram v. Smith, 179 F. Supp. 2d 943 (W.D. Mich. 2001) held that while it could be questioned as to whether the plaintiff’s medical needs were serious, the evidence presented was sufficient to find that there was a question of fact as to whether the defendants were deliberately indifferent to his medical needs. The plaintiff was a sentenced prisoner suffering from Hepatitis C who alleged he had several bleeding episodes and that he was only treated with over-the-counter pain killers. He was not provided with the antiviral drugs, Interferon and Ribavirin. The deterrent for the court in granting summary judgment against the plaintiff was the yard supervisor’s response when the plaintiff informed him he was experiencing bleeding when the plaintiff was preparing to return to his housing unit. The yard supervisor allegedly told the plaintiff that he had no duty to help him and it was not his job to give out shots. Due to the severity of the bleeding treatment and the alleged comments of the yard supervisor, the court ultimately determined that a jury could find deliberate indifference to the plaintiff’s serious medical need.
Deliberate Indifference in Civil Rights
In cases of inequitable treatment by government employees, attorneys frequently see the term "deliberate indifference" applied to a defendant’s behavior. Generally, deliberate indifference is the insouciance or unresponsiveness of a defendant to a harm or threat thereof where they should be expected to understand the full scope of its insidiousness or danger. A common scenario where this standard is applied to criminal cases in the prison, police, or jail context is when a prisoner claims that defendant officials were aware of but indifferent to prison conditions that harm inmate health or safety (i.e., exposure to extreme weather, excessive force, and unsafe food) and failed to remedy the issue.
For example, in Wilson v. Seiter, 501 U.S. 294 (1991), a case concerning excessive exposure to extreme weather by inmates, the Supreme Court addressed the minimal scrutiny required to maintain a claim under the Eighth Amendment and concluded that (1) "objective" component is satisfied by showing that conditions were "sufficiently serious" such that the deprivation of a single human need was "incompatible with evolving standards of decency" and (2) "subjective" component is satisfied by showing that prison officials acted with "deliberate indifference" to the health or safety of the inmates. Here, "deliberate indifference" means that the 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." Id. at 828-39 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). In other words, defendant must exhibit the equivalent of the "I don’t care" attitude when apprised of the condition.
As for public school cases, there is a deliberate indifference standard that is applied to incidents of violence, sexual harassment, abuse, bullying, etc. Both the standard for liability under Title IX, where an educational institution is "deliberately indifferent to known acts of [sexual] harassment," Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 643 (1999), and section 1983, where a plaintiff must show that an official knew about the harassment, was deliberately indifferent to it, and the harassment cause the plaintiff’s injuries, Doe v. Taylor ISD, 15 F.4th 421 (5th Cir. 2021), require similarly egregious behavior where the defendant is shown to have taken no remedial action or made a mockery of such attempts to make the school a safer place.
Although defendant generally must comply with all federal and state civil rights statutes and state regulations to avoid claims of deliberate indifference, courts sometimes find that such passive failures do not rise to the level of deliberate indifference. See, e.g., Wright v. City of Redwood City 17 F.4th 750 (9th Cir. 2021) (failure to adequately train police officers did not constitute deliberate indifference). But such failures can still be substantive issues in the litigation if they show a pattern, i.e., the failure results in a relatively high number or percentage of incidents of which the defendant was aware. These cases can be complex and depend on the specific allegations, breadth of claims raised, and damages suffered, so they should be discussed with an experienced civil rights attorney for guidance.
Proving Deliberate Indifference
From an evidentiary standpoint, a plaintiff must satisfy a two-pronged test to prove deliberate indifference. First, the lawyer must introduce evidence proving that the risk the plaintiff suffered was substantial and serious. To prove this, the plaintiff’s lawyer might produce expert testimony and evidence of a pattern of similar violations. If the plaintiff was harmed, this is usually not hard to do. The evidence needed to prove deliberate indifference is often what a defense attorney would call "bad acts" evidence. This means the plaintiff often relies on a history of an official or policy, which would be outside the scope of the ordinary policy and include acts like ignoring a prisoner’s disability or malady , or a state-created danger. The second prong to this analysis is that the plaintiff must show that the official acted with deliberate indifference to an inmate’s serious medical needs. When the plaintiff can show (as in Grayson) the theory is that the official failed to act in response to the substantial and serious risk. Officials are presumed to know the extent and need of medical care, since it is an objective requirement which transcends any onus on the prisoner to make their needs known. Evidence of subjective deliberate indifference needed to prove a claim is sometimes circumstantial and one of intent, as it is hard to prove in the real world. The courts have held that circumstantial evidence giving rise to an inference of deliberate indifference might be the sort of harm usually associated with the actual intent to cause harm or with an official who consciously disregards a known or obvious risk. Deliberate indifference only occurs when the need for trial testimony is saved by the silence of the victim – in prison when another is ill-treated.
Implications of Deliberate Indifference Verdicts
The implications of findings of deliberate indifference can reverberate throughout future cases and even lead to reforms at the state level to instituted new policies to deal with the causal problem. The threat of future liability under Section 1983, as well as the potential punishment for a municipality can often lead to change in policy. For example, after motion practice and discovery, settlement of an excessive force case that was funded by the municipality were used by a third party for department-wide training. Teetering on the edge of liability is sometimes enough to spur change in policies or procedural guidelines, avoiding both litigation and disaster in the first place.
These verdicts can also be relied upon by Plaintiffs initiating new cases. Where one verdict finds deliberate indifference on a similar issue, other plaintiffs can use those cases to bolster their own case. These findings can also be used at the summary judgment stage to limit development of testimony to just those individuals who were named as deliberately indifferent. Loosely based, this is the theory that a clear reasonable objective standard or protocol was apparently lacking, despite the fact that the litigation parties dispute the adequacy of those standards, so a reasonable fact-finder must determine the adequacy of those standards.
Finally, these verdicts assist in exposing the level of misconduct and the system-wide problem with language, naming conventions, and classifications of suicidal inmates. Money paid in settlements reveals the cost of this lack of knowledge and training. Testimony about policies and procedures shows that the problem is widespread and requires a broad solution. These verdicts help to raise public awareness of the perils of prison suicide and what actors and their supervisors should do to address those dangers. Because it is also said that there is a "screw the state" mentality in cases involving corrections officers, courts hearing these cases should be sensitive to these issues.
Future Trends for Deliberate Indifference Cases
As we peer into the legislative process for deliberate indifference litigation, two trends seem inevitable. First, we can expect changes in case law regarding the Eighth Amendment standard. In Farmer v. Brennan, the U.S. Supreme Court wrote: "The Eighth Amendment does not impose an interest in avoiding all risk of physical injury." Evolutionary trends regarding what constitutes "physical injury" for Eighth Amendment purposes will likely impact the entire spectrum of prisoner litigation, from use of force to medical treatment, environmental hazards to gang violence.
Second, new technology foreshadows program innovations that have already borne fruit in the area of excessive force litigation. Changing inmate/officer ratios, smart spacing, centralized air conditioning, more and better equipment, body cameras, automated restraints, and many more "less lethal" regimes are being adopted in some form or another by innovative corrections professionals. As they gain usage, these alternatives will become best practices and then standards .
Some courts have held that this is the progressive duty of custody administrators: "The Eighth Amendment’s prohibition against cruel and unusual punishment has been interpreted to impose affirmative duties on prisons to provide inmates with humane conditions of confinement."
Relatively inexpensive innovations like central air conditioning and heat reduction, environmental hazard mitigation and less restrictive restraints systems have been adopted by creative corrections administrators despite the large financial burdens involved. In civil litigation, immunity defenses abound, but in many cases prisoners will find institutional legal personnel and legislative representatives willing to work with them, rather than against them.
When it comes to prisoner rights, both conservatives and liberals may find encouragement in election outcomes like the one in November. Over the last two decades, many prisons have been neglected in the face of budget priorities. In 2022, those budgets could fatten and officer positions expand. This means custody personnel will be better trained, better equipped and more numerous than ever. In this context, inertia will favor technological change, progressive approaches to prisoner care, and to cost-effective management.