PEARLY L. WILSON, PETITIONER V. RICHARD SEITER, ET AL.

   No. 89-7376

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Sixth Circuit

   Brief For The United States As Amicus Curiae

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The court of appeals erred in applying the
      "malicious and sadistic" intent standard to an
      Eighth Amendment claim challenging general conditions
      of confinement
      A. The "malicious and sadistic" intent standard
         does not apply to a claim challenging general
         conditions of confinement
      B. The claim that general prison conditions
         violate the Eighth Amendment should be
         resolved by examining the objective conditions
         at the particular institution, not the
         subjective state of mind of the responsible
         officials
      C. If a state of mind inquiry is relevant in a
         prison conditions of confinement case, the
         appropriate requirement is that of "deliberate
         indifference"
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether the "malicious and sadistic" intent requirement of Whitley
v. Albers, 475 U.S. 312 (1986), applies to Eighth Amendment challenges
to conditions of confinement that are not a response to needs of
prison safety and security.

                     INTEREST OF THE UNITED STATES

   This case presents the issue whether the "malicious and sadistic"
intent requirement of Whitley v. Albers, 475 U.S. 312 (1986), applies
to prisoners' Eighth Amendment challenges to their general conditions
of confinement.  The United States has responsibility for enforcing
the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.
1997 et seq., which authorizes the Attorney General to institute a
civil injunctive action against state officials whenever he has reason
to believe they are "subjecting persons residing in or confined to (a
prison or correctional facility) * * * to egregious or flagrant
conditions which deprive such persons" of rights protected by the
Constitution.  42 U.S.C. 1997a(a).  CRIPA also authorizes the Attorney
General to intervene in certain actions seeking relief from
unconstitutional conditions in prisons or correctional institutions.
42 U.S.C. 1997c(a).

   In addition, the Bureau of Prisons, operating under the direction
of the Attorney General, has the responsibility to manage federal
correctional institutions and to provide for the "safekeeping, care,
and subsistence" of persons maintained in such facilities.  18 U.S.C.
4001, 4042.  Finally, the Department of Justice defends actions
brought by federal inmates alleging unconstitutional prison
conditions.

                               STATEMENT

   1. In 1986, petitioner, a prisoner at the Hocking Correctional
Facility (HCF) in Nelsonville, Ohio, filed suit against state prison
officials under 42 U.S.C. 1983, alleging that the conditions of
confinement at HCF violated his rights under the Eighth and Fourteenth
Amendments.  /1/ Specifically, petitioner alleged that overcrowding,
excessive noise, inadequate heating in winter and cooling in summer,
improper ventilation, unsanitary restrooms, unsanitary eating
conditions, and housing with mentally and physically ill inmates
amounted to cruel and unusual punishment.  Petitioner requested
declaratory and injunctive relief, as well as compensatory and
punitive damages.  /2/ J.A. 2-9, 53-54, 62-63.

   The parties filed cross-motions for summary judgment.  Petitioner
supported his motion with affidavits from inmates describing the
alleged unconstitutional conditions of confinement.  Several of these
inmates also stated that they had contacted prison officials
concerning the conditions, but the officials took no action.  J.A.
10-39.  The respondents' supporting affidavits explained efforts taken
by prison officials to improve conditions within the prison, and
contradicted certain of petitioner's claims concerning existing
conditions at HCF.  J.A. 40-52.

   The district court granted respondents' motion for summary judgment
and dismissed the action.  J.A. 53-61.  The court recognized that
conditions of confinement may, under certain circumstances, constitute
cruel and unusual punishment, and noted that "(i)t is obduracy and
wantonness, not inadvertence or error in good faith, that
characterizes the conduct prohibited by the (Eighth Amendment)." J.A.
53-61, quoting Whitley v. Albers, 475 U.S. 312, 319 (1986).  Relying
on respondents' affidavits, the district court concluded that
"plaintiffs have been provided with at least the minimal civilized
measure of life's necessities and have not been deprived of their
Eighth Amendment right to be free from cruel and unusual punishment."
J.A. 59.  The court also concluded that "HCF officials do not
demonstrate obdurate or wanton behavior regarding the conditions of
HCF." Ibid.

   2. The court of appeals affirmed.  J.A. 62-74.  The court first
held that the district court had erred to the extent it had accepted
the accuracy of contested statements in respondents' affidavits --
thus weighing the evidence -- in concluding that the confinement
conditions did not amount to cruel and unusual punishment under the
Eighth Amendment.  J.A. 66.  Nevertheless, the court explained, if the
circumstances set forth in petitioner's affidavits would not support
an Eighth Amendment violation in any case, they did not raise material
issues for trial.  J.A. 66-70.  Examining petitioner's affidavits, the
court concluded that petitioner's claims relating to inadequate
cooling, housing with mentally ill inmates, and overcrowding, even if
true, did not demonstrate the type of "seriously inadequate and
indecent surroundings" required to establish an Eighth Amendment
violation.  Id. at 68, quoting Birrell v. Brown, 867 F.2d 956, 958
(6th Cir. 1989).

   With regard to petitioner's remaining claims, however, the court
found that the conditions described in petitioner's affidavits were
suggestive of conditions that could violate the Cruel and Unusual
Punishments Clause.  J.A. 68.  Accordingly, the court proceeded to
consider whether petitioner had set forth sufficient facts to raise an
inference that respondents acted with the requisite "state of mind" to
support an Eighth Amendment claim.  J.A. 70-74.  The court noted that
Whitley v. Albers, 475 U.S. at 319, had stated that "(i)t is obduracy
and wantonness, not inadvertence or error in good faith, that
characterizes the conduct prohibited by the Cruel and Unusual
Punishments Clause." J.A. 71.  The court added that in the Sixth
Circuit "the Whitley standard is not confined to the facts of that
case;  that is, to suits alleging use of excessive force in an effort
to restore prison order." Ibid.

   Applying those principles, the Sixth Circuit concluded that
petitioner's affidavits failed to support a reasonable inference that
the respondents acted with "obduracy and wantonness." J.A. 71-74.  The
court stressed that petitioner "do(es) not contend that the
(respondents) have made no efforts to provide (him) with minimally
decent confinement conditions." J.A. 73.  Rather, the court observed,
petitioner's complaints "are aimed at the results of those efforts."
Ibid.  After reviewing the "undisputed record" indicating that prison
officials had taken affirmative steps to improve conditions, the court
concluded that "confinement conditions may constitute cruel and
unusual punishment only if such conditions 'compose the punishment at
issue.'" Ibid., quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
"Nothing in (petitioner's) affidavits implies that (respondents) used
confinement conditions to punish (petitioner)." J.A. 73.  Finally, the
court observed (ibid.):

      (T)he Whitley standard of obduracy and wantonness requires
      behavior marked by persistent malicious cruelty.  The record
      before us simply fails to assert facts suggesting such behavior.
       At best, (petitioner's) claim evidences negligence on
      (respondents') parts in implementing standards for maintaining
      conditions.  Negligence, clearly, is inadequate to support an
      (E)ighth (A)mendment claim. SUMMARY OF ARGUMENT

   The court of appeals erred in requiring "behavior marked by
persistent malicious cruelty" in a case challenging the general and
pervasive conditions of confinement under the Eighth Amendment.  The
court purported to apply the standard set forth in Whitley v. Albers,
475 U.S. 312, 320 (1986), but that case required a showing of a
"malicious() and sadistic()" state of mind in the context of actions
to quell a prison disturbance.  The considerations that prompted the
Court to formulate that standard -- the intense concern that prison
officials must have for safety and security in a potentially explosive
situation, and the need for quick decisions -- do not apply in a
challenge to general prison conditions.

   We believe the correct Eighth Amendment analysis, as applied to a
case of this character in which an inmate challenges systemic prison
conditions forming an integral part of his confinement, should focus
on the objective conditions in the prison, rather than on the state of
mind of particular officials.  See Rhodes v. Chapman, 452 U.S. 337
(1981).  In our view, neither the language, history, nor intent of the
Eighth Amendment supports a separate inquiry into the officials' state
of mind.  Rather, the issue is simply whether the punishment itself is
objectively "cruel and unusual." The absence of an inquiry into the
officials' intent makes it especially important that an Eighth
Amendment claimant demonstrate under a rigorous standard that the
conditions at issue are truly "cruel and unusual."

   If a state of mind requirement does apply here, however, the
"deliberate indifference" standard fits the conduct at issue.  That
standard, which falls between simple negligence and malicious and
sadistic intent, focuses attention on whether responsible officials
had knowledge (actual or constructive) of conditions likely to offend
the Constitution, and failed to take action to remedy those
conditions.  The standard should be applied with strong deference to
the difficult circumstances confronting prison officials in managing a
prison facility.

                               ARGUMENT

   THE COURT OF APPEALS ERRED IN APPLYING THE "MALICIOUS AND SADISTIC"
INTENT STANDARD TO AN EIGHTH AMENDMENT CLAIM CHALLENGING GENERAL
CONDITIONS OF CONFINEMENT

   A. The "Malicious And Sadistic" Intent Standard Does Not Apply To A
Claim Challenging General Conditions Of Confinement

   In Whitley v. Albers, 475 U.S. 312 (1986), this Court held that the
question whether the use of excessive force to restore order in a
prison disturbance violates the Eighth Amendment "ultimately turns on
'whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm.'" Id. at 320-321, quoting Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973).  In
this case, the court of appeals apparently believed that the Whitley
standard applies to the very different type of Eighth Amendment
violation alleged here -- a challenge to general and pervasive prison
conditions.  We believe that the court of appeals' application of the
Whitley test in this context constitutes error.  /3/

   1. To put Whitley in context, it is necessary to examine two of
this Court's precedents addressing the application of the Eighth
Amendment to claims by prisoners challenging their experiences in
confinement.

   In Estelle v. Gamble, 429 U.S. 97 (1976), the Court considered an
inmate's claim under the Eighth Amendment based on the failure of
prison officials to render adequate medical care for an injury he
received in prison.  The Court began by stating that the Eighth
Amendment proscribes more than physically barbarous punishments;  it
also reaches punishments that "are incompatible with 'the evolving
standards of decency that mark the progress of a maturing society,'"
id. at 102, quoting Trop v. Dulles, 356 U.S. 86, 100, 101 (1958)
(plurality opinion), or that "involve the unnecessary and wanton
infliction of pain".  429 U.S. at 102-103, quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976) (opinion of Stewart, Powell, and Stevens,
JJ.).  Those principles led the Court to conclude that "deliberate
indifference to serious medical needs of prisoners constitutes the
'unnecessary and wanton' infliction of pain * * * proscribed by the
Eighth Amendment." Id. at 104.

   The Court emphasized in Estelle that not every claim of inadequate
medical treatment violates the Eighth Amendment.  429 U.S. at 105.
The "inadvertent failure" to provide medical care, the Court
explained, does not constitute an unnecessary and wanton infliction of
pain;  thus, claims of negligent diagnosis or treatment of a medical
condition do not state a violation of the Eighth Amendment.  Id. at
105-106.  The Court concluded by characterizing the level of fault
required to state a claim of "deliberate indifference" (id. at 106):

      Medical malpractice does not become a constitutional violation
      merely because the victim is a prisoner.  In order to state a
      cognizable claim, a prisoner must allege acts or omissions
      sufficiently harmful to evidence deliberate indifference to
      serious medical needs.  It is only such indifference that can
      offend "evolving standards of decency" in violation of the
      Eighth Amendment.

   Five years later, in Rhodes v. Chapman, 452 U.S. 337 (1981), the
Court considered an Eighth Amendment challenge to a quite different
prison practice:  a condition of confinement involving a practice of
assigning a single cell for every two inmates at a particular
correctional facility.  In reviewing that challenge, the Court
articulated the basic principles applicable to Eighth Amendment cases
involving conditions of confinement.  The Court reaffirmed the
underlying rule that punishments are cruel and unusual when they
involve "unnecessary and wanton infliction of pain," or inflict pain
"totally without penological justification." Id. at 346.  But the
Court also explained that "the Constitution does not mandate
comfortable prisons," id. at 349, and that "restrictive and even
harsh" conditions "are part of the penalty that criminal offenders pay
for their offenses against society." Id. at 347.

   While recognizing that no "static 'test'" can govern the judicial
inquiry into whether conditions of confinement violate standards drawn
from the Eighth Amendment, the Court admonished that such judgments
"should neither be nor appear to be merely the subjective views of
judges," but "should be informed by objective factors to the maximum
possible extent." 452 U.S. at 346.  Thus, when "the conditions of
confinement compose the punishment at issue," the Eighth Amendment is
violated when those conditions "result() in unquestioned and serious
deprivations of basic human needs," or deprive inmates of the "minimal
civilized measure of life's necessities." Id. at 347.  Applying those
standards to the practice of "double-celling" involved in that case,
the Court found no constitutional violation.  Id. at 347-350.  /4/

   2. In Whitley v. Albers, supra, the Court considered "what standard
governs a prison inmate's claim that prison officials subjected him to
cruel and unusual punishment by shooting him during the course of
their attempt to quell a prison riot." 475 U.S. at 314.  The Court
initially observed that not all actions touching a prisoner's
interests are susceptible to Eighth Amendment analysis;  only the
"unnecessary and wanton infliction of pain" rises to the level of a
violation.  475 U.S. at 319.  As illustrated by Estelle v. Gamble,
"(t)o be cruel and unusual punishment, conduct that does not purport
to be punishment at all must involve more than ordinary lack of due
care for the prisoner's interests or safety." Ibid.  From these
principles, the Court derived the generalization that:

      (i)t is obduracy and wantonness, not inadvertence or error in
      good faith, that characterizes the conduct prohibited by the
      Cruel and Unusual Punishments Clause, whether that conduct
      occurs in connection with establishing conditions of
      confinement, supplying medical needs, or restoring official
      control over a tumultuous cellblock.

Ibid.  The Court added, however, that the requirement of proving
"unnecessary and wanton infliction of pain" is a general criterion
that should be applied "with due regard for differences in the kind of
conduct against which an Eighth Amendment objection is lodged." Id. at
320.

   Keeping in mind the need to tailor Eighth Amendment requirements to
the type of conduct under scrutiny, the Court concluded that the
"deliberate indifference" standard, applied to the denial of medical
treatment in Estelle, should not govern challenges to the use of force
in prison security measures taken to prevent or resolve disturbances.
In the latter class of cases, "the question whether the measure taken
inflicted unnecessary and wanton pain and suffering ultimately turns
on whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm." 475 U.S. at 320-321.  The Court contrasted
the standard employed in Estelle by noting that in evaluating whether
a failure to provide medical care violates the Constitution, a court
would normally have no need to balance "competing institutional
concerns for the safety of prison staff or other inmates." Id. at 320.
 But where force is applied to calm a prison disruption, "prison
officials undoubtedly must take into account the very real threats the
unrest presents to inmates and prison officials alike, in addition to
the possible harms to inmates against whom force might be used." Ibid.
 In that setting, "a deliberate indifference standard does not
adequately capture the importance of such competing obligations, or
convey the appropriate hesitancy to critique in hindsight decisions
necessarily made in haste, under pressure, and frequently without the
luxury of a second chance." Ibid.

   3. In the present case, petitioner challenged the general and
endemic conditions of his confinement, not the application of force in
a particular prison disturbance.  Nevertheless, the court of appeals
essentially transposed Whitley's heightened "malicious and sadistic"
test to the present context, stating that Whitley is "not confined to
the facts of that case;  that is to suits alleging use of excessive
force in an effort to restore prison order." J.A. 71.  /5/

   We disagree with the court of appeals' transposition of the Whitley
test to the circumstances of this case.  Although the court correctly
noted that the "obdurate and wanton" formulation serves as a general
criterion applicable to Eighth Amendment claims, J.A. 71, the court
failed to heed Whitley's admonition that different types of conduct
challenged under the Eighth Amendment implicate distinct concerns --
an admonition that militates against a single standard for determining
in every case whether a particular act or practice constitutes "the
unnecessary and wanton infliction of pain." 475 U.S. at 320.  /6/ A
case challenging the systemic conditions of confinement implicates
none of the policy considerations that led this Court to embrace a
more rigorous intent standard for prison disturbance cases and other
instances implicating legitimate security or other penological
concerns.  /7/

   As the Court in Whitley noted, when officials must act to restore
order within a prison, "decisions (are) necessarily made in haste,
under pressure, and frequently without the luxury of a second chance."
475 U.S. at 320.  Further, prison disturbances involve a significant
risk to the safety of inmates and staff.  Prison officials must
necessarily act to protect those persons, for "central to all other
corrections goals is the institutional consideration of internal
security within the corrections facilities themselves." Pell v.
Procunier, 417 U.S. 817, 823 (1974);  Procunier v. Martinez, 416 U.S.
396, 412 (1974);  Thornburgh v. Abbott, 109 S. Ct. 1874, 1881 (1989).
Consequently, Eighth Amendment standards must reflect the need to
afford officials "wide-ranging deference in the adoption and execution
of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional
security." 475 U.S. at 321-322, quoting Bell v. Wolfish, 441 U.S. 520,
547 (1979).

   Very different considerations arise with respect to the general
conditions prevailing at a prison facility.  These conditions are
likely to evolve as the consequence of policy decisions made over
time, and shaped by such long-term factors as funding levels and
available resources.  Management of such continuing and integral
features of prison confinement as the provision of food, the housing
of inmates, and the cleaning of living quarters is not a process of
reacting to emergencies;  rather, it is part of the regular
administration of the prison as a penal institution.  And, while
prison officials must consider their obligation to ensure security and
safety within the prison in any decision affecting prison life, that
factor does not have the same immediacy in establishing and
maintaining general conditions of confinement as it does in dealing
with a prison disturbance.  Accordingly, the heightened standard of
"malicious and sadistic" intent applied in Whitley is not appropriate
here.  /8/

   B. The Claim That General Prison Conditions Violate The Eighth
Amendment Should Be Resolved By Examining The Objective Conditions At
The Particular Institution, Not The Subjective State Of Mind Of The
Responsible Officials

   The remaining issue is what state-of-mind requirement, if any,
should apply to the claim here that the general, systemic conditions
of a prison violate the prohibition of the Eighth Amendment.  In our
view, that inquiry should focus on the objective conditions at the
prison, not on the intent of the responsible officials.  /9/

   1. The text of the Eighth Amendment does not contain any
irreducible "intent" requirement.  /10/ The language of the Amendment
refers to "punishments," and thus to methods or kinds of punishment
that are cruel and unusual.  In context, the adjective "cruel" (like
the word "unusual") is naturally read as describing the type of
prohibited punishment alone, without respect to the subjective intent
of the officials responsible for the punishment.  /11/

   In addition, the history of the Amendment and its underlying values
support its application to particular methods of punishment,
irrespective of the mental state of the punisher.  As this Court has
recounted, the language of the Eighth Amendment was derived from the
English Bill of Rights of 1689.  In seventeenth century England, it is
generally believed, the phrase "cruel and unusual punishments" was
directed against punishments not authorized by statute and beyond the
jurisdiction of the sentencing court, or disproportionate to the
offense involved.  Gregg v. Georgia, 428 U.S. at 169 (opinion of
Stewart, Powell, and Stevens, JJ.).  See also Granucci, "Nor Cruel and
Unusual Punishments Inflicted":  The Original Meaning, 57 Calif. L.
Rev. 839, 860 (1969).  Neither of these concerns necessarily requires
the intentional or indifferent infliction of pain or discomfort.
Moreover, in framing the Eighth Amendment, the American drafters were
primarily concerned with prohibited certain methods of punishment
(i.e., "torture()" and other "barbarous" techniques), id. at 842;
Gregg, 428 U.S. at 169-170.  Again, these methods do not focus on the
intent of the punisher.  And, this Court has interpreted the Cruel and
Unusual Punishments Clause so as to further its underlying purpose of
embodying "broad and idealistic concepts of dignity, civilized
standards, humanity, and decency." Estelle v. Gamble, 429 U.S. at 102.
 Those values also do not require proof of subjective intent.  /12/

   This Court's Eighth Amendment cases outside the prison conditions
context, though they do not speak with one voice, have not always
considered the intent of the officials applying the punishment.  For
example, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947), the Court held that a second attempt to electrocute an inmate,
after a first effort had failed, was not unconstitutional, because the
initial failure was "an unforseeable accident," and "(t)here was no
purpose to inflict unnecessary pain nor any unnecessary pain involved
in the proposed execution." Id. at 464 (plurality opinion) (emphasis
added).  While the first part of the formulation focuses on the intent
of government officials, the italicized phrase suggests that if the
pain was truly "unnecessary," it would be unconstitutional even if
accidental.  In Robinson v. California, 370 U.S. 660, 666-667 (1962),
the Court concluded that under the Eighth Amendment, a State cannot
make it a criminal offense to be a narcotics addict;  no showing of
improper intention on the part of government actors is required.  And
much of the Court's capital punishment jurisprudence has measured the
standards set by state law against the requirements of the
Constitution without considering the state of mind of individual
government actors.  /13/ See also pp. 19-21, infra (discussing prison
conditions cases).

   2. Reasons of principle also support the use of an objective
standard to resolve claims of systemically inadequate prison
conditions.  The constraints and hardships that characterize prison
life are an integral part of the punishment imposed by confinement,
not conditions incompatible with it.  Rhodes v. Chapman, 452 U.S. at
347, 349.  But the "wanton and unnecessary infliction of pain" on
inmates cannot be justified by any legitimate penological interest.
When general conditions of confinement are so severe that they result
in "unquestioned and serious deprivations of basic human needs," or
"deprive inmates of the minimal civilized measure of life's
necessities," id. at 347, the inmates are subjected to the kind of
suffering that triggers Eighth Amendment concerns.  /14/

   The standards described in Rhodes are rigorous ones, but when
widespread, systemic deprivations of that nature are alleged and
properly supported, the state of mind of the responsible officials is
not relevant to the ultimate question whether those conditions inflict
wanton and unnecessary pain.  /15/ Rather, judicial consideration of
such cases (which typically seek injunctive relief) should focus on
objective conditions as experienced by the inmates.  The reason for
structuring the inquiry in that fashion is straightforward.  Prison
conditions may conceivably have deteriorated through neglect or as a
result of official indifference to prisoners' needs;  more likely, the
conditions result from the sheer lack of resources and overwhelming
demands placed on prison officials, despite the officials' efforts to
ensure adequate food, safety, and sanitation for those in their
custody.  See Rhodes v. Chapman, 452 U.S. at 359-360 (Brennan, J.,
concurring).  The conduct and motives of officials may well affect the
form of relief that is appropriate upon the finding of a violation.
But seriously inhumane, pervasive conditions should not be insulated
from constitutional challenge because the officials managing the
institution have exhibited a conscientious concern for ameliorating
its problems, and have made efforts (albeit unsuccessful) to that end.
 Nor is the concern to avoid judicial second-guessing of particular,
discretionary decisions by prison officials as pressing in the context
of pervasive, continuing conditions.  From the vantage point of those
who are punished by such conditions, the failure of the government to
meet inmates' basic human needs constitutes cruel and unusual
punishment whether or not fault can be clearly ascribed to the
particular officials responsible for running the facility.  /16/

   3. An objective test is consistent with the approach marked out in
Rhodes v. Chapman -- the only decision of this Court to address the
constitutionality of generalized conditions of prison confinement.
Justice Powell's opinion for the Court focused solely on the prison
conditions themselves, rather than on the officials' state of mind, in
considering whether there was a violation.  /17/ In emphasizing that
the Court was considering "for the first time" the Eighth Amendment
limitations "upon the conditions in which a State may confine those
convicted of crimes," 452 U.S. at 344-345, Rhodes necessarily implied
that Estelle v. Gamble, and the state of mind requirement applied in
that case, did not establish the governing legal standards when
general conditions of confinement are challenged.  /18/

   Although some of the more general language in Whitley v. Albers,
475 U.S. at 319, appears to contemplate an inquiry into state of mind
in the typical Eighth Amendment prison case, that decision did not
actually confront allegations of systemically deficient prison
conditions of the sort alleged here.  Indeed, the Court stressed in
Whitley that the formulation of Eighth Amendment standards requires
careful attention to the "differences in the kind of conduct against
which an Eighth Amendment objection is lodged." 475 U.S. at 320.  The
Court in Whitley suggested that the conduct at issue in that case
(action taken to restore prison order), as well as the conduct at
issue in Estelle (diagnosing and treating a medical condition), did
"not purport to be punishment at all." Id. at 319.  /19/ In contrast,
the general and pervasive conditions of confinement may properly be
considered part of the punishment.  See Rhodes, 452 U.S. at 347.  When
the challenged conduct does not purport to be punishment, there are
sound reasons to inquire into prison officials' state of mind before
finding a violation.  /20/ But those reasons do not apply when general
prison conditions, which are an integral aspect of the penalty of
confinement, are so inhumane so as to result in "unquestioned and
serious deprivations of basic human needs." Rhodes, 452 U.S. at 347.
/21/

   C. If A State Of Mind Inquiry Is Relevant In A Prison Conditions Of
Confinement Case, The Appropriate Requirement Is That Of "Deliberate
Indifference"

   If the Court determines that state of mind is relevant to the
question whether an Eighth Amendment violation has occurred, we
believe that the deliberate indifference test, properly qualified,
strikes the correct balance in this context.  The deliberate
indifference standard is consistent with the accepted meaning of the
adjective "cruel" when used to refer to a person.  /22/ And
deprivations affecting basic human needs for shelter, food, and
sanitary conditions have in common with the denial of medical care at
issue in Estelle that in these areas the inmate depends on the prison
to provide for his needs, and inadequate performance "may result in
pain and suffering which no one suggests would serve any penological
purpose." Estelle, 429 U.S. at 103.

   The deliberate indifference standard, however, "is not
self-defining." Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th
Cir. 1990).  As this Court has made clear, the standard requires more
than negligence, Estelle, 429 U.S. at 105-106, but less than malicious
and sadistic intent, Whitley, 475 U.S. at 320.  /23/ We believe the
proper focus of the deliberate indifference standard, in the first
instance, should be on whether prison officials had knowledge of the
conditions that are very likely to offend the Constitution.  Actual
knowledge of the conditions, coupled with the failure to act (the
"deliberate indifference"), would ordinarily satisfy the standard.
/24/

   Actual knowledge, however, is not always required.  For example,
knowledge of prison conditions may properly be inferred if prison
officials deliberately shield themselves from such knowledge.  Cf.
City of Canton v. Harris, 109 S. Ct. 1197, 1205 n.10 (1989)
(municipality may be liable under 42 U.S.C. 1983 for failure to train
only if failure amounts to deliberate indifference to constitutional
rights;  where need to train is "plainly obvious" to officials,
failure may be characterized as deliberate indifference).  Moreover,
if the potential harm from general conditions is so great that prison
officials should have known of those conditions and foreseen the harm,
the factfinder may infer the requisite knowledge in appropriate cases.
 /25/

   Nor would the fact that individual prison officials have taken some
action in response to a deficient condition preclude a finding of an
Eighth Amendment violation.  Actions that fall short of remedying
demonstrated inhumane conditions may fail to dispel the inference of
indifference arising in this context from pervasively inadequate
conditions.  In such a case, the government officials and institutions
responsible for the commitment of resources may have, collectively,
exhibited the requisite "deliberate indifference" to the problem at
hand by failing to appropriate funds to defray the expense of
maintaining adequate conditions;  although the individual prison
officials may not have made those judgments, they are appropriately
called upon to answer for them when sued in their official capacity.
/26/

   A deliberate indifference standard permits the necessary deference
to prison officials' judgments about security and other important
penological concerns.  This Court has noted that "the problems that
arise in the day-to-day operation of a corrections facility are not
susceptible to easy solutions.  Prison administrators therefore should
be accorded wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional security."
Bell v. Wolfish, 441 U.S. 520, 547 (1979).  Moreover, the Court has
recognized that judicial deference is warranted "because the operation
of our correctional facilities is peculiarly the province of the
Legislative and Executive Branches of our Government, not the
Judicial." Id. at 548.  See also O'Lone v. Estate of Shabazz, 482 U.S.
342, 353 (1987) (courts should not "substitute (their) judgment * * *
on difficult and sensitive matters of institutional administration * *
* for the determinations of those charged with the formidable task of
running a prison");  Procunier v. Martinez, 416 U.S. 396, 404-405
(1974) ("(T)he problems of prisons * * * are not readily susceptible
of resolution by decree.  * * * (W)here state penal institutions are
involved, federal courts have a further reason for deference to the
appropriate prison authorities.");  Rhodes v. Chapman, 452 U.S. at 351
& n.16 (addressing magnitude of the problems of prison
administration).  /27/

                      * * * * *

   The court of appeals incorrectly applied the heightened malicious
and sadistic intent standard to the claim here that the systemic and
pervasive conditions of confinement violate the Eighth Amendment.
Accordingly, the judgment should be vacated and the case remanded for
further consideration under the proper standard.  See Graham v.
Connor, 109 S. Ct. 1865, 1873 (1989);  Illinois v. Rodriguez, 110 S.
Ct. 2793, 2801-2802 (1990).

                              CONCLUSION

   The judgment of the court of appeals should be vacated and the case
remanded.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   MICHAEL R. DREEBEN

      Assistant to the Solicitor General

   DAVID K. FLYNN

   THOMAS E. CHANDLER

      Attorneys

   NOVEMBER 1990

   /1/ The Eighth Amendment, held applicable to the States by the
Fourteenth Amendment in Robinson v. California, 370 U.S. 660 (1962),
provides:  "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."

   /2/ Everett Hunt, Jr., a second plaintiff, is no longer confined at
HCF.

   /3/ In this action, petitioner sought injunctive relief against
respondents in their official capacity, and damages against
respondents in their individual capacity.  The issue before this
Court, at this preliminary stage, presents a question common to both
aspects of the case:  the appropriate standard for determining whether
petitioner's allegations in his pleadings and affidavits, if proved,
are sufficient to establish a violation of the Eighth Amendment.  Not
raised at this stage are issues relevant to the imposition of personal
liability for damages if such a violation has occurred.  Those issues
would include questions of causation and of personal responsibility
for the conditions complained of (i.e., to what extent may a
particular individual be held personally accountable for those
conditions), and of the appropriate scope of qualified immunity in a
conditions of confinement case.  For example, we believe there is a
significant difference, for purposes of personal liability, between a
prison official who has unreasonably failed to resort to available
alternatives in order to alleviate or eliminate inhumane prison
conditions, and one who has been unable to correct those conditions as
a result of fiscal constraints beyond his control.  See Brief for the
United States as Amicus Curiae in Brutsche v. Cleveland-Perdue, No.
89-1167, cert. denied (Oct. 29, 1990), at pp. 17-18.  (We have
furnished the parties here with copies of our brief in Brutsche.)

   /4/ The Court took into account that the double celling at issue
"did not lead to deprivations of essential food, medical care, or
sanitation," "increase violence among inmates," or "create other
conditions intolerable for prison confinement." 452 U.S. at 348.

   /5/ The court of appeals never actually quoted the "malicious and
sadistic" language used by the Court in Whitley;  rather, the court
stated that the "Whitley standard of obduracy and wantonness requires
behavior marked by persistent malicious cruelty." J.A. 73.  If
anything, however, the court of appeals' paraphrase imposes an even
more stringent test.  A requirement of "persistent malicious cruelty"
appears to require ongoing wrongful conduct, while the facts and
analysis in Whitley itself imply that an isolated application of force
can violate the Eighth Amendment if the requisite state of mind is
established.

   /6/ Whitley can hardly be read to require a single test in all
cases arising under the Eighth Amendment;  the Court in Whitley, while
fashioning a new standard for considering challenges to the use of
force in a prison disturbance, expressly reaffirmed the holding in
Estelle that the deliberate indifference standard applies to claims of
inadequate medical attention.  475 U.S. at 320.

   /7/ Of course, Whitley is not strictly limited to its facts.  See
Corselli v. Coughlin, 842 F.2d 23, 26 (2d Cir. 1988) (applying
Whitley's malicious and sadistic intent standard to a claim by an
inmate injured by a prison official during a scuffle in the mess hall
even though Whitley was distinguishable, "since that case involved a
full scale prison riot").  In Stubbs v. Dudley, 849 F.2d 83, 86
(1988), the Second Circuit refused to apply Whitley to a claim that
officials failed to protect an inmate from an assault at the hands of
mob of prisoners, because a full-blown prison riot was not in progress
at the time officials acted.  Three Justices dissented from the denial
of certiorari, arguing that Whitley was not limited to prison riots
but applied in the setting of Stubbs because the same type of
"competing institutional concerns" and need for "split-second
decision(s)" found in Whitley were present there as well.  Dudley v.
Stubbs, 489 U.S. 1034, 1038 (1989).

   /8/ Other than the present decision, the courts of appeals have
uniformly rejected the extension of Whitley's malicious and sadistic
intent standard to conditions of confinement cases.  See, e.g., Berry
v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir. 1990) (Whitley
"carefully preserved" the distinction between "the malicious and
sadistic standard applicable in prison riot situations and the
deliberate indifference standard applicable to more ordinary prison
policy decisions");  Evans v. Dugger, 908 F.2d 801, 803-804 (11th Cir.
1990) (Whitley standard does not apply to claim of inadequate medical
attention);  Gillespie v. Crawford, 833 F.2d 47, 50 (1987) (per
curiam) ("(p)rison conditions may violate the Eighth Amendment even if
they are not imposed maliciously or with the conscious desire to
inflict gratuitous pain"), vacated in other aspects, 858 F.2d 1101,
1103 (5th Cir. 1988) (en banc);  Foulds v. Corley, 833 F.2d 52, 54-55
(5th Cir. 1987) (rejecting Whitley standard in challenge to conditions
of confinement);  Morgan v. District of Columbia, 824 F.2d 1049,
1057-1058 (D.C. Cir. 1987) (rejecting Whitley standard where an inmate
was injured in a fight with another inmate allegedly as the result of
prison overcrowding);  LaFaut v. Smith, 834 F.2d 389, 391 (4th Cir.
1987) (rejecting Whitley standard in action by a paraplegic inmate
challenging his conditions of confinement);  Berg v. Kincheloe, 794
F.2d 457, 459-461 (9th Cir. 1986) (rejecting application of malicious
and sadistic intent standard to claim by an inmate assaulted by
another inmate).  See also Unwin v. Campbell, 863 F.2d 124, 135 (1st
Cir. 1988) (in qualified immunity context, the Whitley standard does
not apply when institutional security is not at stake).

   /9/ The court of appeals disposed of three of petitioner's claims
in precisely that way, concluding that even if petitioner's
allegations were true, those conditions did not rise to the level of
Eighth Amendment violations.  J.A. 66-70.  With respect to the
remaining claims, however, the court addressed only whether petitioner
alleged a state of mind sufficient to support an Eighth Amendment
claim.  Id. at 70-74.  Since the proper application of Eighth
Amendment standards other than the intent requirement is not at issue
here, we express no view about whether any of those remaining claims
involve conditions sufficiently harsh to constitute cruel and unusual
punishment.  We note, however, that if, as we believe, state of mind
is not an element of a constitutional violation in a systemic
conditions-of-confinement case, courts must exercise special caution
in determining whether objective conditions are sufficiently egregious
to violate inmates' constitutional rights.  Cf. Hoptowit v. Ray, 682
F.2d 1237, 1247 (9th Cir. 1982);  Inmates of Occoquan v. Barry, 844
F.2d 828, 836-837 (D.C. Cir. 1988).  See also pp. 25-26, infra,
addressing the need for judicial deference to judgments of prison
officials.

   /10/ Although this Court has remarked that "the terms 'cruel' and
'punishment' clearly suggest some inquiry into subjective state of
mind," Graham v. Connor, 109 S. Ct. 1865, 1873 (1989) (dictum), those
terms, as used in the Eighth Amendment, do not invariably require an
intent-based analysis.

   /11/ See Estelle v. Gamble, 429 U.S. at 116-117 (Stevens, J.,
dissenting) ("whether the constitutional standard has been violated
should turn on the character of the punishment rather than the
motivation of the individual who inflicted it").

   /12/ It is noteworthy that, in Gregg, where the Court first
referred to the "unnecessary and wanton infliction of pain," 428 U.S.
at 173, it was using the phrase to describe an excessive punishment,
not to describe the state of mind of the person inflicting that
punishment.

   /13/ See, e.g., Ford v. Wainwright, 477 U.S. 399 (1986);  Thompson
v. Oklahoma, 487 U.S. 815 (1988).  Although the death penalty receives
unique Eighth Amendment treatment, id. at 856 (O'Connor, J.
concurring), the Court's consideration of the Amendment in that
context without regard to intent is nevertheless relevant here.

   /14/ Although the Court in Rhodes did not explain the meaning of
the quoted phrases, it gave some insight into the nature of the
conditions that fall below applicable thresholds by its citation, 452
U.S. at 347, of Hutto v. Finney, 437 U.S. 678 (1978), in which the
district court had characterized the prison conditions under scrutiny
as "a dark and evil world completely alien to the free world," id. at
681 -- a statement made readily understandable by the Hutto Court's
detailed description of those conditions.  Id. at 681-682.  See also
Rhodes v. Chapman, 452 U.S. at 355 (Brennan, J., concurring), quoting
Pugh v. Locke, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other
grounds, 438 U.S. 781 (1978) (per curiam).

   /15/ The present case does not involve a complaint growing out of
an isolated incident or a transitory condition.  Such a case may
present considerations more analogous to those involved in Estelle v.
Gamble, or Whitley v. Albers.  Moreover, such cases often involve only
actions for damages against officials in their individual capacity,
thus raising questions of personal accountability and qualified
immunity.  See p. 7 n.3, supra;  p. 19 n.16, infra.

   /16/ Of course, an objective analysis would take into account the
purposes asserted by prison officials to justify the establishment of
particular conditions.  For example, particular housing arrangements
may respond to prison security concerns in which prison officials are
entitled to a wide range of deference.  Rhodes v. Chapman, 452 U.S. at
349 n.14.  The duration of the conditions, which may relate to their
cause, is also a factor.  Cf. Hutto v. Finney, 437 U.S. 678, 686-687
(1978) ("A filthy, overcrowded cell and a diet of 'grue' might be
tolerable for a few days and intolerably cruel for a week or a
month.").  An unheated prison during a cold winter may be viewed as
inflicting unnecessary pain, but if the problem is a temporary one
caused by a broken boiler that officials have endeavored to fix, the
situation does not involve the kind of pervasive conditions that can
be viewed as an integral part of the penal confinement itself.  Courts
faced with constitutional challenges to particular conditions of
confinement can readily take such considerations carefully into
account in resolving such claims.

   /17/ At the same time, the Court emphasized that, to constitute an
Eighth Amendment violation, it is not enough that the conditions of
confinement are "restrictive and even harsh";  constitutional limits
are exceeded only when the conditions result in deprivation of the
"minimal civilized measure of life's necessities." 452 U.S. at 347.

   /18/ See Inmates of Occoquan v. Barry, 844 F.2d 828, 837 (D.C. Cir.
1988) ("The demand for objective facts going to essential human needs
is, we believe, the clear message of Rhodes.").

   /19/ Because they were not general conditions cases -- but rather
challenges to an isolated incident -- Whitley and Estelle appear to
have implicated only Section 1983 claims for personal liability and
damages, where factors other than the objective conditions of
confinement would be relevant.  See p. 7 n.3, supra.

   /20/ The situation in Estelle -- the denial of adequate medical
care -- illustrates the point.  Government is required to provide
medical care to prison inmates, since the incarcerated prisoner has no
other options, DeShaney v. Winnebago County Social Services Dep't, 489
U.S. 189, 200 (1989);  West v. Atkins, 487 U.S. 42, 54-55 (1987);
Estelle, 429 U.S. at 103.  But the inherent nature of medical care is
such that good faith, or even negligent, mistakes are an inevitable
by-product of providing the service in the first place.  The risk of
medical malpractice is not appreciably different for prison inmates
than for other persons.  Accordingly, once government has furnished
access to medical care, it has satisfied the basic requirements
imposed by the Constitution.  To require government to furnish
error-free medical care as a matter of constitutional law would not
only impose an unrealistic standard of care, but would also seek to
assure a level of protection that is essentially unrelated to the goal
of avoiding cruel and unusual "punishment." Cf. Davidson v. Cannon,
474 U.S. 344 (1986) (Due Process Clause is not violated by the
negligent failure of prison officials to protect an inmate against an
assault by another prisoner).

   /21/ See Gillespie v. Crawford, 833 F.2d 47, 50 (5th Cir. 1987)
(per curiam) ("Unlike conduct that does not purport to be punishment
at all, the Court has not made intent an element of a cause of action
alleging unconstitutional conditions of confinement.").

   /22/ See J. Murray, A New English Dictionary on Historical
Principles 1216 (1893) (defining "cruel" to mean "indifferent to or
taking pleasure in another's pain or distress" as applied to a person)
(dictionary reissued in 1933 as The Oxford English Dictionary).

   /23/ See also Berry v. City of Muskogee, 900 F.2d at 1495-1596
(deliberate indifference requires a higher degree of fault than
negligence but "remains lower than the intentional and malicious
infliction of injury reflected in the Whitley standard");  LaFaut v.
Smith, 834 F.2d at 392 n.5 (an inmate need not prove that prison
officials intended to deprive him of medical care).

   /24/ This position is generally consistent with decision of the
lower federal courts.  See, e.g., Berry v. City of Muskogee, supra (an
official acts with deliberate indifference if his conduct "disregards
a known or obvious risk that is very likely to result in the violation
of the prisoners' constitutional rights");  LaFaut v. Smith, 834 F.2d
at 394 (prison officials acted with deliberate indifference in
neglecting the needs of a paraplegic inmate where the evidence
established that a prison official "was fully advised both of the
inhumane conditions of (the inmate's) confinement and the failure to
provide him with the needed therapy" and did nothing for almost eight
months);  Cortes-Quinones v. Jimenez-Nettleship, supra (evidence was
sufficient to find that prison officials were deliberately indifferent
to the needs of a psychiatrically disturbed prisoner in an overcrowded
jail since prison officials knew or should have known of the risks of
housing a mentally ill prisoner with the general prison population and
failed to act);  Morgan v. District of Columbia, 824 F.2d at 1058
(deliberate indifference requires showing that officials knew or
should have known of obvious unreasonable risk of harm and were
"outrageously insensitive or flagrantly indifferent to the situation
and took no significant action to correct or avoid the risk of harm");
 Gillespie v. Crawford, 833 F.2d at 50 (inmates' allegations that they
repeatedly complained, without results, about the conditions of their
confinement are sufficient to state a claim);  Ruefly v. Landon, 825
F.2d 792, 794 (4th Cir. 1987) (in an action by an inmate assaulted by
a fellow inmate, complaint failed to state a claim because it did not
allege that prison officials knew or had reason to know that the other
inmate posed a specific risk of harm).

   /25/ Some courts have equated deliberate indifference with
recklessness.  See, e.g., Duckworth v. Franzen, 780 F.2d 645, 652-653
(7th Cir. 1985) (equating deliberate indifference with criminal
recklessness, which implies "an act so dangerous that the defendant's
knowledge of the risk can be inferred"), cert. denied, 479 U.S. 816
(1986).  But see Berry v. City of Muskogee, 900 F.2d at 1495-1496 &
n.9(stating that deliberate indifference standard is not as high as
criminal recklessness, and noting that the Supreme Court has never
ruled on the precise relationship among gross negligence, deliberate
indifference, and recklessness in the Eighth Amendment context).  This
Court has suggested in a different context that deliberate
indifference requires proof of more culpable conduct than gross
negligence.  City of Canton v. Harris, 109 S. Ct. 1197, 1204 n.7
(1989) (Section 1983 action alleging a city's failure to train).

   /26/ With respect to the officials' liability in damages when sued
in their personal capacity, see p. 7 n.3, supra.

   The approach suggested in text comports with the recognition that
prison management is "peculiarly within the province of the
legislative and executive branches of government" because the
resolution of prison problems "requires expertise, comprehensive
planning, and the commitment of resources." Procunier v. Martinez, 416
U.S. 396, 404-404 (1974) (emphasis added).  See also Revere v.
Massachusetts General Hospital, 463 U.S. 239, 245 (1983) ("If, of
course, the governmental entity can obtain the medical care needed for
a detainee only by paying for it, then it must pay.";  construing Due
Process Clause).

   /27/ If the deliberate indifference standard is applied as we
suggest, it is unlikely that the more serious prison conditions cases
(such as those cited in p. 18 n.14, supra), would come out differently
under such a standard than under our preferred approach, which
dispenses with an inquiry into state of mind.  Nevertheless, we
believe it analytically sounder in systemic challenges for the courts
to look to the nature of the conditions themselves, rather than to
conduct a distracting and often inconclusive inquiry into intent.