WPI 343.00 Introduction—Conditions of Confinement—Eighth Amendment and Fourteenth Amendment

Organization of this chapter. For this edition, the WPI Committee substantially reorganized WPI Chapter 343 because of changes in the law. This chapter now provides separate pattern instructions under the Eighth Amendment (applicable to convicted inmates) and the Fourteenth Amendment (applicable to pretrial detainees). This is because the United States Supreme Court and the Courts of Appeals sometimes apply differing standards depending upon which constitutional amendment applies to the plaintiff's claims.

This chapter is further organized into separate pattern instructions according to the type of potential claim (general conditions of confinement, failure to protect, medical, and use of force). This is because there are differences in how the Eighth Amendment and Fourteenth Amendment standards are expressed in some of these areas.

Eighth Amendment claims. The Eighth Amendment applies to persons sentenced and held in custody and imposes certain duties on prison officials: (1) to provide humane conditions of confinement; (2) to ensure that inmates receive adequate food, clothing, shelter, and medical care; and (3) to “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) (citing Hudson v. Palmer, 468 U.S. 517, 526–27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

An Eighth Amendment conditions of confinement claim has two components - the plaintiff must show that the defendant: (1) exposed the plaintiff to a substantial risk of serious harm; and (2) was deliberately indifferent to the plaintiff's constitutional rights. Farmer v. Brennan, 511 U.S. at 837, 842; Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016).

To satisfy the first component, the deprivation alleged must be, objectively, “sufficiently serious” such as “incarcerat[ion] under conditions posing a substantial risk of serious harm.” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). A deprivation is sufficiently serious when the prison official's act or omission results “in the denial of the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. at 834.

To satisfy the second component, the plaintiff must prove subjective recklessness or deliberate indifference by the official.

Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “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.” Farmer v. Brennan, 511 U.S. at 842.

Constructive notice does not suffice to prove the requisite knowledge, but “[w]hether 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.” Farmer v. Brennan, 511 U.S. at 841–42; see also Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015) (rejecting the constructive notice argument). In making this determination, the jury may consider whether “the circumstances suggest that the [official] being sued had been exposed to information concerning the risk and thus ‘must have known’ about it.” Farmer v. Brennan, 511 U.S. at 841–42.

This deliberate indifference standard is the same for all conditions of confinement claims under the Eighth Amendment. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). However, because there are some differences in how the deliberate indifference standard is expressed for each type of conditions of confinement claim, this chapter contains separate pattern instructions for each claim type.

For Eighth Amendment general conditions of confinement claims, use WPI 343.01 (General Conditions of Confinement—Eighth Amendment—Burden of Proof on the Issues) with WPI 343.02 (Conditions of Confinement—Eighth Amendment—Deliberate Indifference—General Conditions of Confinement).

For Eighth Amendment medical claims, use WPI 343.03 (Conditions of Confinement/Medical Care—Eighth Amendment—Burden of Proof on the Issues) with WPI 343.04 (Conditions of Confinement—Eighth Amendment—Deliberate Indifference).

For Eighth Amendment failure to protect claims, use WPI 343.05 (Conditions of Confinement/Failure to Protect—Eighth Amendment—Burden of Proof on the Issues) with WPI 343.06 (Conditions of Confinement—Eighth Amendment—Deliberate Indifference—Failure to Protect).

For Eighth Amendment excessive force claims, use WPI 343.08 (Conditions of Confinement—Eighth Amendment—Excessive Force—Burden of Proof on the Issues).

Fourteenth Amendment claims. The Fourteenth Amendment, instead of the Eighth Amendment, applies to persons who have been arrested but not yet arraigned, and to pretrial detainees—those who have been arraigned, but not yet convicted or sentenced for a crime. Bell v. Wolfish, 441 U.S. 520, 535–39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Because persons who are in custody pending arraignment, and pretrial detainees, are being held on probable cause but are not being punished, there is no authority for the state to use punishment in their confinement. Any conditions of confinement must be in accordance with substantive due process and fundamental fairness principles under the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520.

Because pretrial detainees' rights under the Fourteenth Amendment have historically been considered comparable to prisoners' rights under the Eighth Amendment, the Ninth Circuit Court of Appeals has applied the same standard to both. See Frost v. Agnos, 152 F.3d 1124 (9th 1998); Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).

However, in Kingsley v. Hendrickson, U.S. , 135 S.Ct. 2466, 2472–73, 192 L.Ed.2d 416 (2015), the Supreme Court rejected the use of the Eighth Amendment subjective deliberate indifference standard for excessive force claims. Instead, excessive force claims brought by pretrial detainees are analyzed under a Fourteenth Amendment objective reasonableness standard. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472–73.

The federal courts have begun to determine whether the ruling in Kingsley should apply to other types of pretrial detainee claims. For example, the Ninth Circuit Court of Appeals has previously relied on the Eighth Amendment standard of care that requires proof of deliberate indifference. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241–44 (9th Cir. 2010). Following Kingsley, the Ninth Circuit Court of Appeals reversed Clouthier “to the extent that it identified a single deliberate indifference standard for all § 1983 claims and to the extent that it required a plaintiff to prove an individual defendant's subjective intent to punish in the context of a pretrial detainee's failure-to-protect claim.” Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc), cert. denied 137 S.Ct. 831 (2017).

The ruling in Castro specifically applied to a pretrial detainee's failure-to-protect claims and it is unclear whether Castro and Kingsley apply generally to all types of pretrial detainee conditions of confinement claims. The Second Circuit, following the reasoning in Castro, now applies the objective standard to all Fourteenth Amendment conditions of confinement claims. Darnell v. Piniero, 849 F.3d 17, 35–36 (2nd Cir. 2017).

However, in the context of pretrial detainee medical claims, other circuits have continued to apply a subjective standard of deliberate indifference. See Rife v. Oklahoma Dep't. of Pub. Safety, 854 F.3d 637, 647 (11th Cir. 2017), cert. denied 138 S.Ct. 364; Alderson v. Concordia Parish Correctional Facility, 848 F.3d 415, 419–20 (5th Cir. 2017); Dadd v. Onoka County, 827 F.3d 749, 755 (8th Cir. 2016); Smith v. Dart, 803 F.3d 304, 310 (7th Cir. 2015); Baynes v. Cleveland, 799 F.3d 600, 617–18 (6th Cir. 2015).

For further discussion of this topic, see the Comment to Ninth Cir. Civ. Jury Instr. 9.30 (2007), and Hatter v. Dyer, 154 F.Supp.3d 940 (C.D. Cal. 2015) (summarizing the Supreme Court and Ninth Circuit precedent on whether the Eight Amendment deliberate indifference standard applies to general conditions of confinement claims by pretrial detainees).

With respect to all Fourteenth Amendment claims against a municipality arising under Monell v. Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Ninth Circuit has held that a plaintiff must show the municipality's deliberate indifference under an “objective inquiry.” Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016), cert. denied 137 S.Ct. 831 (2017). “This objective standard necessarily applied to municipalities for the practical reason that government entities, unlike individuals, do not themselves have states of mind[.]” Castro v. County of Los Angeles, 833 F.3d 1060, 1076.

This chapter includes a proposed objective reasonableness instruction for use in a pretrial detainee failure to protect claim when the trial court has decided to apply the Castro standard. See WPI 343.07 (Conditions of Confinement/Failure to Protect—Fourteenth Amendment—Burden of Proof on the Issues). If the trial court has decided to apply the pre-Castro deliberate indifference standard to a pretrial detainee failure to protect claim, modify and use WPI 343.05 (Conditions of Confinement/Failure to Protect—Eighth Amendment—Burden of Proof on the Issues) with WPI 343.06 (Conditions of Confinement—Eighth Amendment—Deliberate Indifference—Failure to Protect).

This chapter does not include proposed objective reasonableness instructions for use in pretrial detainee general conditions of confinement or medical claims because the law is unsettled in these areas.

This chapter does not include a proposed objective reasonableness instruction for use in a pretrial detainee excessive force claim because the Supreme Court did not provide guidance in Kingsley on the appropriate jury instruction.

Standard applicable to convicted inmates who are awaiting sentencing. The Supreme Court has not analyzed whether the Eighth Amendment is applicable to detainees who have been convicted and are awaiting sentencing, but it has suggested that the Eighth Amendment does not attach until after conviction and sentence. Graham v. Connor, 490 U.S. 386, 392 n.6, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (noting that Ingraham v. Wright, 430 U.S. 651, 671 n.40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) established that “the Eighth Amendment's protections did not attach until after conviction and sentence”).

Deference to prison officials. For cases involving a policy or practice addressing a bona fide safety and security concern when there is evidence that the challenged decision was made pursuant to that security-based policy or practice, the pattern instructions in this chapter may need to be modified by adding a deference instruction. Chess v. Dovey, 790 F.3d 961, 974 (9th Cir. 2015). In such situations, including in hybrid situations where the security concern overlaps with the contested condition of confinement, the court must instruct the jury to defer to the prison officials who adopted and executed a practice or policy needed to preserve discipline and maintain internal security. Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1255 (2016). However, deference need not be given to officials if there is substantial evidence demonstrating their response to the situation is exaggerated. Florence v. Bd. Of Chosen Freeholders of Cty. Of Burlington, 566 U.S. 318, 330, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012); Mendiola-Martinez v. Arpaio, 836 F.3d at 1255.

In cases where there is evidence that the defendant prison official lacks authority over budgeting decisions, the pattern instructions in this chapter may need to be modified to allow the jury to consider whether the prison official met his or her duties to an inmate in the context of the personnel, financial, and other resources available to the official or which he or she could reasonably obtain. Peralta v. Dillard, 744 F.3d 1076, 1083–84 (9th Cir. 2014).

Involuntary civil commitment and minimally adequate or reasonable training. In Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court determined that a person who has been involuntarily committed by the state due to a mental disability has a Fourteenth Amendment liberty interest to receive adequate or reasonable training during the course of his or her confinement. Such training is necessary to ensure the person's physical safety and to prevent unnecessary use of restraints. Youngberg v. Romeo, 457 U.S. at 324; see also Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).

The Fourteenth Amendment was intended to prevent the state “from abusing [its] power, or employing it as an instrument of oppression.” DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed. 2d 249 (1989). The right to minimally adequate or reasonable training does not apply if a person is not in state custody, but in some situations it may apply to a person who is voluntarily committed. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. at 196; Lanman v. Hinson, 529 F.3d 673 (6th Cir. 2008); Torisky v. Schweiker, 446 F.3d 438 (3rd Cir. 2006); Kaho'ohanohano v. Dep't of Human Servs., 117 Haw. 262, 296, 178 P.3d 538 (2008).

Comments on the evidence. With regard to avoiding comments on the evidence, see the Comment to WPI 340.01 (Claims Instruction for Section 1983 Cases).