WPI 343.05 Conditions of Confinement/Failure to Protect—Eighth Amendment—Burden of Proof on the...

Use this instruction for Eighth Amendment claims involving safety needs of incarcerated persons who have been convicted of a crime.

In Fourteenth Amendment failure to protect cases, use WPI 343.07 (Conditions of Confinement/Failure to Protect—Fourteenth Amendment—Burden of Proof on the Issues) instead of this instruction.

Use this instruction with WPI 340.01 (Claims Instruction for Section 1983 Cases) and WPI 340.03 (Civil Rights—“Under Color of Law”—Definition). Use this instruction in place of WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues).

If there are genuine issues of material fact concerning deliberate indifference, use WPI 343.06 (Conditions of Confinement—Eighth Amendment—Deliberate Indifference—Failure to Protect) with this instruction. Do not use WPI 341.04 (Civil Rights—Failure to Train or Inadequate Training—Municipal Liability—“Deliberate Indifference”—Definition) with this instruction.

For discussions of causation and the bracketed word “proximately,” see the Comments to WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues), WPI 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition), and WPI 340.06 (Causation—Comment Only).

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

For general conditions of confinement claims brought under the Eighth Amendment, use WPI 343.01 (General Conditions of Confinement—Eighth Amendment—Burden of Proof on the Issues) instead of this instruction. For general conditions of confinement claims brought under the Fourteenth Amendment, see the Comment to WPI 343.00 (Introduction—Conditions of Confinement—Eighth Amendment and Fourteenth Amendment).

For medical claims brought under the Eighth Amendment, use WPI 343.03 (Conditions of Confinement/Medical Care—Eighth Amendment—Burden of Proof on the Issues) instead of this instruction. For medical claims brought under the Fourteenth Amendment, see the Comment to WPI 343.00 (Introduction—Conditions of Confinement—Eighth Amendment and Fourteenth Amendment).

Prior to this edition, this instruction was designated as WPI 343.03. This instruction now applies only to claims under the Eighth Amendment.

See the Comment to WPI 343.00 (Introduction—Conditions of Confinement—Eighth Amendment and Fourteenth Amendment) for a discussion of this and other Eighth and Fourteenth Amendment conditions of confinement claims.

Convicted prisoner failure to protect claims. The Eighth Amendment requires that prison officials “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To prove a violation of the Eighth Amendment in a failure to protect case a plaintiff must show that the defendant: (1) exposed plaintiff to a substantial risk of serious harm; and (2) was deliberately indifferent to plaintiff's constitutional rights. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

If some or all of the allegations are that the defendant did not directly take action or fail to take action regarding the risks alleged by plaintiff, but instead the defendant caused the plaintiff to be harmed by deliberate indifference because of the acts or omissions of others under official policies, the instruction will need to be modified accordingly.

Pretrial detainee failure to protect claims. When a “failure to protect” claim is based on events that happen after arrest but before judgment and sentence are entered, the Ninth Circuit Court of Appeals has adopted a purely objective deliberate indifference standard. Castro v. County of Los Angeles, 833 F.3d 1060, 1068–71 (9th Cir. 2016), cert. denied 137 S.Ct. 831 (2017) (overruling Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241–44 (9th Cir. 2010)). See also Darnell v. Piniero, 849 F.3d 17, 35–36 (2nd Cir. 2017) (applying an objective standard of intent to all Fourteenth Amendment pretrial detainee claims). The Fifth Circuit, however, continues to apply a subjective deliberate indifference to Fourteenth Amendment pretrial detainee failure to protect claims. Alderson v. Concordia Parish Correctional Facility, 848 F.3d 415, 419–20 (5th Cir. 2017).

See WPI 343.07 (Conditions of Confinement/Failure to Protect—Fourteenth Amendment—Burden of Proof on the Issues) for the appropriate instruction in a Fourteenth Amendment failure to protect claim if the trial court has decided to apply the Ninth Circuit objective standard of intent.