http://www.prisonwall.org/gettingaway.htm

GETTING AWAY WITH TORTURE:

Deliberate Indifference to the Medical Needs of Incarcerated Individuals

WHY AMERICA'S PRISONS ARE "ANIMAL FACTOR[IES]"

David L Tamarin

State correctional facilities (jails, prisons, penitentiaries) have an affirmative obligation to provide for the medical care of their charges. Once an individual is incarcerated, he is made wholly dependent on the state for all of his needs, such as food, clothing, shelter, and medical treatment. An incarcerated individual has been cut off from all other sources of help, by reason of his or her incarceration. Thus arises the state's affirmative duty. "The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs e.g., food, clothing, shelter, medical care, and reasonable safety it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause."

In Estelle v. Gamble, the Supreme Court held that deliberate indifference to a prisoner's serious medical needs was a violation of the Eighth Amendment's ban on cruel and unusual punishment, and therefore actionable as a civil rights suit under § 1983.  Since that time, many prisoners, as well as pretrial detainees and involuntarily committed individuals, have sued state officials under this statute. Although the Supreme Court has established a standard, the different circuits apply the term "deliberate indifference" in different ways. For example, the Model Jury Instructions for the Eighth Circuit define deliberate indifference as being established "only if there is actual knowledge of a substantial risk that plaintiff has a serious medical problem and if the defendant consciously refuses to take steps to deal with the problem. Mere negligence or inadvertence does not constitute deliberate indifference". One district court defined the term to include only life threatening illnesses. The Defendant "has not carried his burden here because he has offered nothing to support his contention that his reactive hypoglycemia is a serious, life-threatening illness." In other words, willful refusal to treat a problem that does not threaten one's life, even if the problem is severe, like broken ribs, does not rise to the level of deliberate indifference by this definition. Many courts implicitly use this standard, equating serious with deadly or potentially fatal.

Because the determination of whether there was deliberate indifference is highly fact-specific, the outcome is difficult to predict, although some of the circuits seem to rule consistently against prisoners. Some circuits accept the rationale for the "hands off" doctrine that the Judiciary is too distanced from prison life to make or judge internal administrative decisions. The defendants in the typical § 1983 cases are prison doctors, prison nurses and other staff, prison medical directors, prison dentists, and correctional officers (for ignoring doctors orders or refusing to allow sick or injured patients to see a doctor). Prisoners asserting a § 1983 claim often name prison directors and chiefs as defendants, but they cannot be held liable because § 1983 requires intent. Thus there can be no liability under respondeat superior theory for an administrator with no knowledge of the problem.

There is an objective and a subjective test for deliberate indifference. The objective test focuses on whether the medical need is "serious" while the subjective test focuses on the prison official's state of mind. If the officials display deliberate indifference and the objective test is met, a Constitutional violation has occurred.

The Eighth Circuit Jury Instructions are typical of the application of the deliberate indifference standard. Because many deliberate indifference claims do not make it to the Supreme Court, it is important to understand how lower courts interpret and apply the Supreme Court's standards. The Eighth Circuit provides that there is a five-part test to define deliberate indifference. First, the Plaintiff must have a serious medical need, the objective element of the test. If the need is not serious, then no Eighth Amendment claim exists.

The Comments to the Eighth Circuit's Model Jury Instructions define a serious medical need as "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." However, what is serious in one circuit is not always serious in another. For example, some courts hold that a serious need exists only if the consequences of the denial of treatment of the need result in permanent and long-term effects.

These next two requirements, taken together, constitute the subjective element, the state of mind of the state actor: the defendant was aware of the plaintiff's need for such medical treatment.and the defendant, with deliberate indifference, failed to provide medical care, direct that such care be provided, or allow the plaintiff to obtain such relief.

The Eighth Amendment does not prohibit all pain and suffering, just the pain and suffering caused when a government official is deliberately indifferent to the prisoner's medical condition. If the official had no knowledge of the problem, then there is no guilty state of mind and no violation of the Constitution.

The fourth requirement is that the plaintiff was damaged. This is similar to the 'serious medical need' requirement, in that plaintiff must show that the indifference of the official had the effect of seriously damaging the prisoner, establishing the objective element of the claim.

The final requirement according to the Eighth Circuit's Model Jury Instructions is that the refendant was acting under color of state law. In the custodial context, this is not a seriously disputed element, as prison officials are obviously acting under color of their authority granted them by the state.

Because most of the deliberate indifference cases come before the Circuit Courts as appeals from summary judgment decisions, a successful decision means that there are enough material facts in dispute to preclude summary judgment. Thus the prisoner wins his right to be heard in a court of law before a trier of facts. And ironically, in several of the cases that have most advanced the rights of prisoners, the individual plaintiff lost the case. An example is Estelle v. Gamble, where the prisoner lost his appeal but the Supreme Court first adopted the deliberate indifference standard.

In Estelle,  a Texas state prisoner filed a § 1983 suit against prison officials, including the Director of the Texas Department of Corrections. The prisoner was injured when a 600 pound bale of cotton fell on his back. He sought and received medical attention, and was prescribed medication and given a cell pass. He returned to the prison's unit hospital many times over the course of the next few months. He was prescribed different medications for his problems. He complained that he was receiving inadequate treatment, that the pain medication was ineffective, that a prescription was lost and delayed for 4 days, that prison officials did not comply with a doctor's directive to have him moved to a lower bunk, and that he was punished for refusing to work because of his pain. The Supreme Court held that he had no cause of action against the prison physician, although it remanded the case on the issue of causes of action against the prison officials.

Justice Marshall, writing the majority opinion, announced that prison officials could be held liable if their actions amounted to deliberate indifference to the serious medical needs of incarcerated individuals. Because prisoners are completely dependent on the state for their needs, the state has an affirmative obligation to take care of their serious medical problems. A violation of this obligation is sufficient to show a violation of the Eighth Amendment to the US Constitution, and § 1983, a federal statute.

Subsequent litigation has focused on the meaning of the terms "serious" and "deliberate indifference". Depending on the circuit, these terms can have widely divergent definitions. Gamble lost because the prison physicians were not deliberately indifferent to his needs. They made good faith efforts to help his problems, and he probably would not have received any better treatment had he been out of state custody. Gamble's complaint was essentially that he continued to suffer even after seeing the doctors, who were of no help, and that he was punished for refusing to work for medical reasons. This case makes it clear that officials have an obligation to check out a prisoner's complaints, make a reasonable diagnosis, and prescribe some form of treatment. There is no Constitutional duty on the State to completely eradicate all the pain and suffering of its charges. In fact, even negligence or "mere" medical malpractice, while sufficient to state a state tort claim, does not mean a violation of the Constitution. Only deliberate indifference in the face of suffering is considered a violation of federal law and the Constitution.

In Farmer v. Brennan, a young transsexual was transferred from a lower security correctional facility into a higher security penitentiary, a more dangerous environment for anyone, but in particular for a young and effeminate prisoner. Farmer was an obvious target for violent sexual predators, and he was raped within a short time of the transfer. He brought suit against various prison officials, alleging that they were deliberately indifferent to a very real risk of physical harm, and had thus violated his Eighth Amendment right to be free from cruel and unusual punishment. The Court stated that deliberate indifference is the same as subjective, or criminal recklessness. There are two requirements, "the official must both be aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference". The objective element is that there was in fact a substantial risk of serious harm. The subjective state of mind requirement is that the official actually knew of and disregarded a risk to inmate health or safety. Even if a risk is clearly obvious, the official has a defense that he was nevertheless unaware of the risk, and thus lacked the culpable state of mind necessary to inflict a punishment. The Court reasoned that the Eighth Amendment's reference to 'punishment' required an intent to punish, so that without the requisite intent, there has been no Constitutional violation.

Wilson v. Seiter held that a subjective state of mind requirement existed for a valid Eighth Amendment claim. Punishment requires intentional action, the actor must be aware of what he or she is doing. As Justice Scalia put it, "[i]f the pain inflicted is not formally meted out as a punishment by the statute or sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify [as an Eighth Amendment claim]".

In Helling v. McKinney, the Supreme Court expanded the scope of Eighth Amendment protection, holding that the Constitution protects inmates against the risk of future harm. An inmate alleging exposure to an unreasonable risk of serious damage to his future health has stated a viable 1983 claim. Because of this case, an inmate can now allege that the prison physicians and others are deliberately indifferent to his serious risk of future harm. This is significant in that an inmate now doesn't have to wait until he is seriously ill to take action. The inmate in this case did not actually have to wait until he got lung cancer before he could go to court.

The cases above are a few of the major deliberate indifference cases. In order to understand deliberate indifference, it is important to know not just what the phrase means but how the courts apply it by comparing the results in two different cases.

Stewart v. Murphy is a case from the Fifth Circuit Court of Appeals. An inmate died in agony from bedsores, a situation that could have been avoided, or at least minimized, by proper treatment and attention. "The attending physician who admitted Stewart to the University of Mississippi Medical Center (UMC) testified that Stewart had the worst bedsores she had ever seen." Dr. Schlessinger said that "[y]ou could see exposed bone, lots of necrotic tissue. [The sores] were horrendously foul smelling." The nurses avoided the elderly prisoner and refused to treat him because the bedsores emitted a horrible stench. He was not transferred in a timely manner to a facility equipped for him. Over a period of several weeks many steps to alleviate the symptoms were not taken. These steps would have prolonged the life of the prisoner or at least spared him agony, but instead the elderly prisoner's condition worsened until he died. The court held that the prison physicians were not deliberately indifferent to the serious medical needs of the inmate and that they were entitled to qualified immunity. The Court affirmed summary judgment for the physicians, meaning that it believed there was no factual dispute and that no rational jury could possibly find the physicians deliberately indifferent. The court defended the physicians on a number of grounds, such as lack of awareness; "mere medical malpractice;" and others. Because the Court explains most of the defenses that Defendants in § 1983 cases have successfully used, an analysis of the case helps explain and clarify some of the many controversies involved in § 1983 actions.

Stewart used the defense of "mere negligence," or "mere medical malpractice" to support the physicians. "At worst, any failure by Dr. Dial to discover the ulcer earlier, to read the nurses' notes indicating Stewart's incontinence or mobility problems, or to follow-up to ensure that his orders were carried out might constitute negligence, not the requisite deliberate indifference." This defense is an acknowledgement that the prisoner received insufficient treatment, but only insufficient enough to support a state tort claim, not a claim of a violation of a Constitutionally protected right. A doctor who gives a mistaken diagnosis, or even a doctor who is plainly negligent, may be committing a tort, but not a Constitutional violation. The plaintiff's status as a prisoner does not entitle him to better care than someone outside of prison, and the prisoner and free citizen are both left to state tort claims. In other words, the court found that mere negligence is not transformed into a Constitutional violation because the patient is in state custody.

This ignores the fact that a free citizen has the option to seek out another doctor, and is not completely dependant on a doctor (and the state) to fulfill his or her basic needs. Once a person enters state custody, he is completely dependent on the state to provide for all of his necessities. So an implication of this argument is that putting a person into a situation where he or she is dependant on the state does not create any heightened duty on the part of the state to meet those needs.

Another defense discussed in Stewart was the doctors' "difference in opinion: "Even though she [Dr. Kim] did not follow Dr. Wright's recommendations, this suggests nothing more than a difference in opinion as to the appropriate method of treatment under the circumstances." If a physician orders some course of treatment, no matter how inadequate, she can then claim she was not indifferent, but made an honest medical judgment. A negligent doctor can ignore the warnings of another doctor, and minimize this indifference by claiming that there is only a difference in opinion.

To the majority it was important that Dr. Kim "actively treated Stewart's condition. She personally debrided the ulcers, ordered that the wounds be medicated and dressed, and monitored Stewart's nutritional levels." In other words, she did not have him locked up in solitary confinement without any medical treatment at all, which presumably would constitute deliberate indifference.

The dissent noted that after Dr. Dial returned Stewart to his cell, the cell-mate noticed that "both sides of Stewart's hips were bloody and raw and that his clothes stuck to his body Stewart became feverish and delirious, lost the ability of both his bladder and bowel functions, and urinated and defecated on himself. Throughout this [two week] period, no physician saw him". Only after two weeks did Dr. Kim admit Stewart to the hospital. The dissent then describes in detail how the prisoner's suffering and treatment worsened until death. However, the majority concluded that that failure to treat the patient in a meaningful way amounted to more than a mere difference in opinion.

Systemic failure or problems in communications problems can also be an individual defense. The excuse is that the whole system is allegedly at fault, so that no one person is held responsible. In this defense the doctor, in effect, states that she did all she could. The systemic failure defense shifts blame to the whole system, so that each individual part is blameless. Each doctor asserts that he or she is the one working gear in an otherwise broken machine, or else that he or she is helpless against the system. Because of prison overcrowding and physician understaffing, systemic failures are becoming more common. In accepting this defense the Court stressed that "each defendant's subjective deliberate indifference, vel non, must be examined separately." The Court did not require an analysis of the system as a whole, even though doing so may establish a custom of deliberate indifference.

Two related defenses are lack of knowledge and qualified immunity. Because the doctrine of "respondeat superior" does not apply in these cases, the actions of nurses and other prison staff cannot be imputed to a higher official. Thus Dr. Kim was not deliberately indifferent, even though she knew her orders would be ignored, because she made an attempt to do something, and cannot be held liable for the inaction of the nurses. In other, non-custodial situations, someone like Dr. Kim might have been held liable for a tort for the actions and inaction of the nurses whom she knew would not obey her orders. There can be no vicarious liability in a § 1983 action, because of the intent requirement. Since blame can be shifted, the prohibition on vicarious liability lets everybody off, as they all have someone else to blame. The whole system has failed a prisoner, and no individual is liable because the system itself is to blame.

The reason that the administrators and officials escape liability even though they run prisons with conditions that violate the Constitution is the subjective component of the deliberate indifference test. The Eighth Amendment requires not just punishment, but an intent to punish, and that the indifference be 'deliberate'. The term 'punishment' implies intentional action, not failure to supervise. Mere ignorance, or even mere inaction with knowledge of the problem, by an administrator or other top official who is responsible for his facility, does not violate the Constitution. The Eighth Amendment is designed to prohibit torture, not punish doctors for exercising medical 'discretion.' Unfortunately for the decedent, his condition was so bad it is doubtful that even doctors intent on torturing him could have made the situation any worse. The Court does not look at the result, but the subjective state of mind that created the result. In effect, the prisoner was tortured to death by the system, but because of negligence not malice. Those conditions can lead to injunctive relief, but not necessarily an action for individual damanges.

About one year after the Fifth Circuit held in Stewart v. Murphy that there was no deliberate indifference action stated in the case of a patient who died in agony from bedsores after months in agony and delirium, the United States Court of Appeals for the Second Circuit found that enough evidence of deliberate indifference existed to allow a trial on the merits in the case of a prison dentist who would not fill an inmate's cavity.¹⁶ Although the evidence indicates that the dentist was in fact deliberately indifferent, if not outright hostile, it is unclear why seemingly more egregious cases of deliberate indifference are dismissed. The best explanation is that the defendant in Stewart provided absolutely no treatment at all to the prisoner, and made any treatment conditional on the prisoner consenting to a dental procedure he did not want or need.

Harrison v. Barkley held that the cavity was a serious medical condition: "because a tooth cavity will degenerate with increasingly serious implications if neglected over sufficient time, it presents a 'serious medical need' within the meaning of our case law". Because a tooth cavity was a condition that gets worse over time, an untreated cavity is "likely to produce agony". Because the prison dentist knew that refusing to treat the cavity would eventually lead to serious pain and suffering, this refusal violated the Eighth Amendment's ban on cruel and unusual punishment. The dentist's outright refusal to treat the problem is clear evidence of an attitude of deliberate indifference. The dentist's decision "was to adamantly refuse treatment of a properly diagnosed medical condition that was progressively degenerative, potentially dangerous and painful, and that could be treated easily and without risk. Consciously disregarding an inmate's legitimate medical needs is not 'mere medical malpractice'". Because of the relationship between the seriousness of the problem and the doctor's attitude in treating it, the subjective and objective components may overlap.

In Stewart, it is possible that the prisoner simply fell through the cracks, that he was the victim of an understaffed and underfunded system, while in this case the prisoner did not fall through the cracks the dentist knew of the cavity and refused treatment. The patient had a serious condition that could still cause problems even if properly treated, and the proper solution to the problem was not obvious. In Harrison, on the other hand, the dentist could have removed the tooth and ended the problem immediately. He willfully opposed to helping the prisoner where the problem and its solution were very clear. The defense failed because what the dentist did was refuse treatment altogether, rather than order a different course of treatment. In other words, "different course of treatment" may be a successful defense, while "no course of treatment" constitutes an Eighth Amendment violation. The Court emphasized "that (1) outright refusal of any treatment for a degenerative condition that tends to cause acute infection and pain if left untreated and (2) imposition of a seriously unreasonable condition on such treatment, both constitute deliberate indifference on the part of prison officials."

The Future of § 1983 Litigation

In recent years, various groups of people have begun invoking § 1983 in actions charging prison officials with deliberate indifference. Most prisons do not have an adequate system for testing inmates for the AIDS virus, and do not provide much in the way of medical treatment. The lack of testing combined with the prevalence of rape in prison leads to the spread of AIDS to people who will eventually leave prison and spread it among the general population. Deliberate indifference to the medical needs of prisoners is a serious problem that affects more than just prisoners. Mistreating individuals, many of whom are already prone to violence, turns American prisons into animal factories. Besides being inhumane and unconstitutional, and making this country look uncivilized, denial of medical care in prisons affects everyone in society.

Endnotes

1. Animal Factory is a semi-autobiographical book that later became a film about life in a maximum security prison.
2. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
3. Id. at 200.
4. Estelle v. Gamble, 429 U.S. 97 (1976).
5.The relevant part of 42 USC § 1983 reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

If the prisoner is in a federal facility, he or she must bring a Bivens action, discussed below.
6. Bryant v. Roth, 1996 WL 296599 (N.D.Ill.1996).
7. "[T]he doctors may not be held liable for §1983 violations under a theory of respondeat superior or vicarious liability. Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999), referring to Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). However, in some cases a systemic failure may be grounds for liability, for example in a case where the system is so inadequate that its inadequacy qualifies it as a Monell custom or policy. DeGidio v. Pung, 920 F.2d 525 (8th Cir.1990)(systemic failure with regards to the spread of tuberculosis among prisoners).
8.There is a preliminary test for whether or not a "punishment" occurs. If this test is not met, then the Eighth Amendment is not implicated. Wilson v. Seiter, 501 U.S. 294, 301-302 (1991).
9. In Hudson v. McMillian the Court seemed to reject a de minimus type rule and hold that the injury does not have to be serious. However, this case involves an allegation of excessive force, not deliberate indifference. Hudson v. McMillian, 503 U.S. 1 (1992).
10.Russell v. Enser, 496 F.Supp. 320 (D.S.C. 1979), aff’d, 634 F.2d 1095 (4th Cir. 1980), quoted in Dr. Michael S. Vaughn, Section 1983 Civil Liability of Prison Officials for Denying and Delaying Medication and Drugs to Prison Inmates, 11 Issues L. & Med. 47, 73 (1995). 11. Estelle v. Gamble, 429 U.S. 97 (1976).
12. Farmer v. Brennan, 511 U.S. 825 (1994).
13. Wilson v. Seiter, 501 U.S. 294 (1991).
14. Helling v. McKinney, 509 U.S. 25 (1993).
15.Stewart v. Murphy, 174 F.3d 530 (5th Cir. 1999). 16.Harrison v. Barkley, 219 F.3d 132 (2nd Cir. 2000). 16.These groups include women with breast implants, pregnant women, transsexuals, the mentally ill, AIDS patients, and drug addicts on Methadone. For example, heroin addicts brought suit alleging a right to methadone while incarcerated. While a person outside of prison would be free to pursue this course of treatment (methadone), this is not the test for whether it is a right for prisoners. Incarcerated individuals have the right to minimally adequate medical treatment, not a right to the best possible medical treatment. The state interest in keeping prisons free of drugs overrides the prisoner's interest in drug therapy. This logic is absurd because methadone is used to combat heroin use, which means making methadone available to prisoners would probably decrease the prison drug trade by reducing demand. Even a person who is on methadone therapy who is taken into state custody does not have the right to continue receiving his medication. It is irrelevant that "cold turkey" methadone withdrawal, unlike heroin withdrawal, can be fatal, and certainly has the effect of a very painful punishment. Many people released from prison and denied drug addiction treatment are released with drug problems, as well as pent up rage over miserable jail conditions. Denial of adequate mental health care in prisons is partially responsible for the high rate of repeat offenders. Individuals who have been released after being denied adequate drug addiction and mental health treatment for years commit more crimes and return to jail, as more and more jails are built with taxpayer money. The lack of drug treatment, combined with inadequate medical care, is the real cause of the 'revolving door' system, not liberal sentencing.

David L Tamarin is a graduate of Suffolk University Law School. This article is taken from a larger student paper written on Eighth Amendment violations.