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1994-1995 Sup. Ct. Preview 159 (1994-1995)
Supreme Court Defines Deliberate Indifference

handle is hein.journals/suemrtpre3 and id is 195 raw text is: SUPREME COURT DEFINES 'DELIBERATE INDIFFERENCE'

Copyright 1994 New York Law Publishing Company
New York Law Journal
July 19, 1994, Tuesday
Martin A. Schwartz

AT LONG LAST the United States Supreme
Court has provided a definition of the deliberate
indifference  standard  employed   in   Eighth
Amendment prison-condition cases. In Farmer v.
Brennan,' the Court ruled that the Eighth
Amendment claim of a transsexual prisoner, who had
been beaten and raped by an inmate, was governed
by the deliberate indifference standard. The Court
went on to hold that liability could be imposed on a
prison official for the deliberately indifferent denial
of humane conditions of confinement only if it is
shown that: the official knows of and disregards an
excessive risk of 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.2
Justice David Souter wrote the unanimous
decision for the Court. Justice Blackmun, Stevens
and Thomas each wrote a separate concurring
Deliberate indifference first appeared in the
Supreme Court's decisional law in 1976 in Estelle v.
Gamble as the governing standard for prisoner
Eighth Amendment medical treatment claims. In
Wilson v. Seiter? the Court in 1991 extended Estelle
by adopting the deliberate indifference standard for
all Eighth Amendment attacks on prison conditions.6
In addition, the Court in City of Canton v. Harris'
in 1989 ruled that deliberate indifference is the
controlling standard for §1983 municipal liability
claims   based   upon   inadequate   training.'
Nevertheless, although deliberate indifference has
governed a large and expanding universe of
prisoners' rights and other claims brought under
§1983,' the Supreme Court prior to Farmer never
paused to define the meaning of the term deliberate
indifference.' . . .'10
The plaintiff, Dee Farmer, who is serving
a federal sentence for credit card fraud, has been
diagnosed by medical personnel as a transsexual . .
. Farmer has a feminine appearance. Federal
prison authorities follow a practice of incarcerating
preoperative transsexuals like Farmer with prisoners
of the same biological sex.12 In 1989 Farmer was
transferred for disciplinary reasons from a federal
correctional institute in Wisconsin to the federal
penitentiary in Terre Haute, Ind. * Farmer alleged

that shortly after the transfer she was beaten and
raped in her cell by another inmate.
Knowledge of Violent Environment'
Farmer's federal court complaint asserted an
Eighth Amendment Bivensl4 claim against various
federal prison officials. She alleged that defendants
transferred her to the Terre Haute penitentiary or
placed her in its general population despite
knowledge that the penitentiary had a violent
environment and a history of inmate assaults, and
despite knowledge that . . . as a transsexual who
projects feminine characteristics' [Farmer] would be
particularly vulnerable to sexual attack by . . . Terre
Haute inmates. This allegedly amounted to a
deliberately indifferent failure to protect [Farmer's]
safety and thus a violation of [her] Eighth
Amendment rights.'1
The district court granted summary judgment
to the defendants, finding that they were not
deliberately indifferent because they had no actual
knowledge of the potential danger to Farmer.' The
Seventh Circuit summarily affirmed without
opinion.  The Seventh Circuit in prior decisions
had ruled that deliberate indifference requires a
subjective standard of recklessness requiring the
plaintiff to show that the prison officials had actual
knowledge of the threatened injury.' By contrast,
the Third and Ninth circuits had ruled that a prison
official is deliberately indifferent when he knows or
should have known of a sufficiently serious danger
to an inmate.'9 The Supreme Court granted
certiorari to resolve the conflict.
But before tackling the definition of
deliberate indifference, it first had to be determined
whether prison officials may be held liable under the
Eighth Amendment for their deliberate indifference
to inmate safety. The Constitution generally does not
impose affirmative obligations upon government to
assist individuals in need, even if the government
knows that an individual is threatened with harm.'
However, since the state has deprived prisoners of
their physical liberty and of the means to protect
themselves, prison officials have an Eighth
Amendment obligation to provide inmates with the
necessities of life -- adequate food, clothing, shelter
and medical care, and must take reasonable measures


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