PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-3753

 

ERIC M BETTS; SUSAN BETTS, 

 Appellants

v.

NEW CASTLE YOUTH DEVELOPMENT CENTER;

KENNETH WENT, in his individual and official capacity;

CHARLES MITCHAM, in his individual and official

capacity; DAVID TOMOCHECK, in his individual and

official capacity; OMAR STUART, in his individual and

official capacity; WILLIE BLUE, in his individual and

official capacity; TAMMY A ODEM, in her individual and

official capacity; JOHN DOE, in his individual and official

capacity

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 07-cv-00337)

District Judge: Honorable David Stewart Cercone

 
2

Argued May 18, 2010

Before: FUENTES, HARDIMAN and 

NYGAARD, Circuit Judges.

(Filed: September 13, 2010)

Robert Ross [Argued]

Ross, Fuller & Casey 

1650 Market Street 

One Liberty Place, Suite 3450 

Philadelphia, PA 19103 

Attorneys for Appellants

John G. Knorr, III [Argued]

Office of Attorney General of Pennsylvania 

Strawberry Square 

Harrisburg, PA 17120-0000 

Mary L. Friedline

Mariah Passarelli

Office of Attorney General of Pennsylvania 

564 Forbes Avenue 

Manor Complex 

Pittsburgh, PA 15219-0000 

Attorneys for Appellees

 

OPINION OF THE COURT

 
 Because Betts was a minor at the time of the injury, his 1

mother brought suit as well, seeking compensation for the

medical expenses she incurred on behalf of her son. Because

there is complete overlap between the claims of Betts and his

mother, for the sake of convenience we refer only to Betts.

3

HARDIMAN, Circuit Judge.

On Saturday, April 29, 2006, seventeen-year-old Eric

Betts suffered a tragic spinal cord injury while attempting to

make a tackle during a “pick-up” football game at the New

Castle Youth Development Center (YDC). Following the

injury, Betts sued YDC and several of its staff members

pursuant to 42 U.S.C. § 1983, claiming various constitutional

violations. The District Court entered summary judgment for

YDC and its staff in their official capacities, finding them

immune from suit under the Eleventh Amendment. Summary

judgment also was entered on the merits in favor of the

Defendants in their individual capacities. Betts filed this timely

appeal.1

I.

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction

under 28 U.S.C. § 1291.

“Our review of Defendants’ entitlement to Eleventh

Amendment immunity is plenary.” Haybarger v. Lawrence

County Adult Prob. and Parole, 551 F.3d 193, 197 (3d Cir.
4

2008). We review the District Court’s summary judgment de

novo, viewing the facts in the light most favorable to the

nonmoving party. See Groman v. Twp. of Manalapan, 47 F.3d

628, 633 (3d Cir. 1995). Summary judgment is appropriate

where there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c)(2). A genuine issue of material fact exists when

the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). When the moving party has carried

its burden, the nonmoving party must “set out specific facts

showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2).

Unsupported assertions, conclusory allegations, or mere

suspicions are insufficient to overcome a motion for summary

judgment. See Williams v. Borough of West Chester, 891 F.2d

458, 460 (3d Cir. 1989).

II.

The YDC houses youths who have been adjudicated

delinquent and committed by Pennsylvania’s Juvenile Courts to

the care and custody of the Pennsylvania Department of

Welfare’s Bureau of Juvenile Justice Services. At the time of

his injury, Betts had been committed to the YDC’s Secure

Treatment Program—a maximum security program for serious

offenders—and was assigned to one of five residential cottages.

Counselors worked in the cottages and were required to

accompany the residents at all times. On weekends, residents

had “free time” during which they were permitted to use indoor

and outdoor basketball courts, several gyms and weight training

equipment, a swimming pool, and an outdoor area available for
 Betts testified that the residents always played tackle 2

football, “physical, full contact like the Steelers.” Although

some YDC staff testified that the games were touch football, we

accept the truth of Betts’s version of events for purposes of this

appeal.

5

football or walking. During daytime activities such as the

football game involved in this case, at least one YDC staff

member had to be present for every six residents.

On the day Betts was tragically injured, two counselors

accompanied ten residents, including Betts, to the outdoor area

to play football. By their previous agreement, residents from

Pittsburgh chose to square off against residents from

Philadelphia. As was their habit, the residents played tackle

football without any equipment. During the course of the fateful

game, a player simulated a kickoff by throwing the ball into the

air. Betts—who had prior experience playing organized and

“pick-up” tackle and touch football—ran down the field “full

force” and hit the ball carrier with his head. Betts testified at his

deposition that he “really tried to hurt” the opposing player

because his “adrenaline was rushing.”

Upon impact, Betts fell to the ground and was unable to

get up. While Betts was lying on the ground, a counselor

advised Betts to tell people he had been playing touch, not

tackle, football. An ambulance transported Betts to a local 2

hospital, where he was evacuated by helicopter to St. Elizabeth’s

Hospital in Youngstown, Ohio. Unfortunately, Betts’s spinal

cord injury was so severe that it resulted in quadriplegia.
 The District Court also dismissed Betts’s claims under 3

the Fourth and Fifth Amendments to the United States

Constitution, but Betts has not preserved those claims for

appeal.

6

Following the accident, Betts sued YDC and several of

its staff members in their official and individual capacities. As

relevant to this appeal, Betts claimed his rights were violated

under the Eighth and Fourteenth Amendments to the United

States Constitution. The Defendants filed a motion for summary

judgment, asserting that YDC and its staff in their official

capacities were immune from suit under the Eleventh

Amendment. The District Court agreed, holding that the

Pennsylvania Department of Public Welfare (DPW) is an

administrative agency without existence apart from the

Commonwealth. Betts v. New Castle Youth Dev. Ctr., 2009 WL

2913846, at *3 (W.D. Pa. Sept. 8, 2009). And because the YDC

is a Pennsylvania state agency “regulated, monitored and

maintained” by the DPW, it was entitled to the same immunity.

Id.

3

As for Betts’s individual-capacity claims against the

YDC staff members, the District Court ruled on the merits. On

Betts’s Eighth Amendment claim, the District Court held there

was insufficient evidence to raise genuine issues of fact as to the

existence of a substantial risk of serious harm and the

Defendants’ deliberate indifference to that risk. Id. at *5-6.

Regarding Betts’s claims under the Due Process Clause of the

Fourteenth Amendment, the District Court held that his claim

for deliberate indifference failed for the same reason it failed
 The Supreme Court has explained—and we have 4

recognized—that “‘the Eleventh Amendment does not define the

scope of the States’ sovereign immunity; it is but one particular

exemplification of that immunity.’” Lombardo v. Pennsylvania

Dep’t of Public Welfare, 540 F.3d 190, 195 (3d Cir. 2008)

(quoting Federal Mar. Comm’n v. S.C. State Ports Auth., 535

U.S. 743, 753 (2002)). Thus, the States’ sovereign immunity

“extends beyond the literal text of the Eleventh Amendment” to

comprise more than just immunity from suit in federal court, but

also “immunity from liability.” Id.

7

under the Eighth Amendment and that there was no liability

under the state-created danger doctrine because the challenged

behavior did not shock the conscience. Id. at *6-8.

III.

State governments and their subsidiary units are immune

from suit in federal court under the Eleventh Amendment, which

provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.”4

U.S. Const. amend. XI. “The Supreme Court extended the

Eleventh Amendment’s reach to suits by in-state plaintiffs, thus

barring all suits against non-consenting States in federal court.”

Lombardo v. Pennsylvania Dep’t of Public Welfare, 540 F.3d

190, 194 (3d Cir. 2008) (citing Hans v. Louisiana, 134 U.S. 1

(1890)). Individual state employees sued in their official

capacity are also entitled to Eleventh Amendment immunity
 The Commonwealth of Pennsylvania has not waived its 5

rights under the Eleventh Amendment in this case. See 42 PA.

CONS. STAT. § 8521(b). 

8

because “official-capacity suits generally represent only another

way of pleading an action” against the state. Hafer v. Melo, 502

U.S. 21, 25 (1991) (internal quotation marks omitted).

However, “[t]he Supreme Court has long held that counties,

municipalities, and political subdivisions of a state are not

protected by the Eleventh Amendment.” Febres v. Camden Bd.

of Educ., 445 F.3d 227, 229 (3d Cir. 2006) (citations omitted).

The party asserting Eleventh Amendment immunity “bears the

burden of proving its applicability.” Christy v. Pennsylvania

Tpk. Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995).5

“[I]n certain instances summary disposition of the

eleventh amendment issue is possible,” however, in close cases,

“evidence beyond the mere statutory language is required.”

Blake v. Kline, 612 F.2d 718, 726 (3d Cir. 1979). When

evidence beyond mere statutory language is required, we apply

an “oft-reiterated” three-part test to determine “whether an entity

is an ‘alter ego’ or ‘arm’ of a state for purposes of Eleventh

Amendment immunity.” Christy, 54 F.3d at 1144 (collecting

cases). In this case, the District Court did not apply the Christy

test because it found dispositive the relevant statutory language

and Betts’s concessions concerning DPW’s control of YDC.

Betts claims the District Court erred by failing to apply the

Christy test. We disagree with Betts and, in doing so, endeavor

to clarify when the Christy test should and should not be

applied.
9

The fundamental flaw in Betts’s argument lies in its

fallacious premise, viz., that this is a case where “evidence

beyond mere statutory language” is required. As we stated long

before Christy was decided: “in certain instances summary

disposition of the eleventh amendment issue is possible . . . .”

Blake, 612 F.2d at 726; see also Christy, 54 F.3d at 1144 (“In

general, a claim of Eleventh Amendment immunity will

occasion serious dispute only where a relatively complex

institutional arrangement makes it unclear whether a given entity

ought to be treated as an arm of the state.” (citation omitted)).

We agree with the District Court that this case is one where

summary disposition is not only possible, but appropriate.

As the District Court duly noted, Pennsylvania and

federal law establish that the DPW is entitled to Eleventh

Amendment immunity because it is an administrative agency

without existence apart from the Commonwealth. See 71 PA.

CONS. STAT. § 61 (“executive and administrative work of [the

Commonwealth of Pennsylvania] shall be performed by” various

executives and administrative agencies, including the

“Department of Public Welfare”); Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 108 n.16 (1984) (holding that

defendants including Pennsylvania DPW, and Pennhurst State

School and Hospital—“a state institution”—were entitled to

immunity under the Eleventh Amendment); Lavia v.

Pennsylvania Dep’t of Corrections, 224 F.3d 190, 195 (3d Cir.

2000) (“Because the Commonwealth of Pennsylvania’s

Department of Corrections is a part of the executive department

of the Commonwealth, see Pa. Stat. Ann., tit. 71, § 61, it shares

in the Commonwealth’s Eleventh Amendment immunity.”);

Lombardo, 540 F.3d at 193. As Betts conceded in the trial
10

court, YDC is a Pennsylvania state agency “regulated,

monitored and maintained by the [DPW].” Betts, 2009 WL

2913846, at *3 (citing the complaint); see also Beers-Capitol v.

Whetzel, 256 F.3d 120, 124-25 (3d Cir. 2001) (noting that YDC

is “a detention facility for juveniles run by the Pennsylvania

Department of Public Welfare”). Accordingly, the District

Court concluded that YDC was entitled to the same immunity as

the DPW.

The District Court’s holding is firmly grounded in

Pennsylvania statutory law, which provides:

“State institutions” means and includes all

hospitals for the mentally ill or any other

institutions for mentally retarded or epileptic

persons, or for juvenile delinquents and

dependents, and charitable institutions, within this

Commonwealth, maintained in whole by the

Commonwealth, and whose boards of trustees are

departmental administrative boards within the

department.

62 PA. CONS. STAT. § 301. The DPW has “supervision over all

State institutions,” id. at § 302, and Pennsylvania’s statutory

scheme for DPW administration of these institutions further

evidences that YDC does not have independent status apart from

the Commonwealth. See Id. at §§ 304 (payment of costs), 305

(DPW control over contracts for repairs, alterations or

equipment), 307 (DPW control over contracts for utility

services); 308 (DPW authority to lease land at state institutions

to municipalities for purposes of garbage disposal); 342 (DPW
 That YDC did not have a Board of Trustees in place for 6

at least two years prior to the time of Betts’s accident does not

negate that it is a “state institution” under § 301. By law, the

Board of Trustees is a “departmental advisory board” within the

DPW, 62 PA.CONS. STAT. § 301, whose primary responsibilities

include making recommendations regarding the management,

operations, and policy of the institution, see id at § 317. Like

the District Court, we are not aware of any precedent or facts

supporting Betts’s declaration that the absence of a Board of

Trustees turned the YDC into a “rogue institution operating

outside the supervision of the Commonwealth.” Betts Br. at 13.

11

power to appoint superintendents of state institutions). This

statutory scheme—which explicitly includes institutions for

juvenile delinquents within the definition of “state

institutions”—is the beginning and the end of the matter for

purposes of Eleventh Amendment immunity. This is not a case

involving complex institutional arrangements with non-state

actors.6

In sum, because Pennsylvania law provides, and Betts

concedes, that institutions for juvenile delinquents are state

institutions existing within the Department of Public Welfare

and YDC was, in fact, managed by DPW, we hold that the

District Court did not err in granting Eleventh Amendment

immunity to YDC and its staff in their official capacities. The

District Court was not required to reflexively apply the Christy

test because YDC is clearly an arm of the Commonwealth under

state law.
 Specifically, Betts sued Kenneth Went, Director of 7

Operations for all youth development facilities; Charles

Mitcham, Director of the Secure Treatment Program at YDC;

David Tomochek, a Youth Development Counselor Supervisor

at YDC; Omar Stuart, a Counselor at YDC; and Willie Blue and

Tammy A. Odem,Youth Development Aides at YDC.

12

IV.

Following its initial ruling with respect to the Eleventh

Amendment, the District Court proceeded to adjudicate the

merits of Betts’s claims against the YDC staff in their 7

individual capacities, as required by Hafer v. Melo, 502 U.S. 21,

31 (1991). We turn first to Betts’s Eighth Amendment claim.

Betts contends the District Court erred in entering

summary judgment on his Eighth Amendment claim because he

raised genuine issues of material fact as to the existence of a

substantial risk of serious harm and the Defendants’ deliberate

indifference to that risk.

The Eighth Amendment’s prohibition on “cruel and

unusual punishment” restrains prison officials from certain

actions (e.g., the use of excessive force against prisoners), and

imposes on them a duty to provide “humane conditions of

confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).

That is, “prison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must

‘take reasonable measures to guarantee the safety of the

inmates.’” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27
 An allegation of an Eighth Amendment violation by a 8

juvenile detention facility official is analyzed under the same

rubric as an allegation against a prison official. Beers-Capitol,

256 F.3d at 125.

13

(1984)). For an alleged deprivation to rise to the level of an 8

Eighth Amendment violation, it must “result in the denial of ‘the

minimal civilized measure of life’s necessities.’” Id. at 835

(quoting Rhodes, 452 U.S. at 347). To prove an Eighth

Amendment violation based on a failure to ensure his reasonable

safety, Betts must show that the Defendants were “deliberately

indifferen[t] to a substantial risk of serious harm.” Id. at 828.

The question of YDC’s deliberate indifference is a subjective

inquiry, while risk of harm is evaluated objectively. See

Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003).

In Helling v. McKinney, 509 U.S. 25 (1993), an inmate

filed suit against prison officials alleging Eighth Amendment

violations based on his involuntary exposure to environmental

tobacco smoke (ETS) emanating from his cellmate’s cigarettes.

509 U.S. at 27 (alleging cellmate smoked five packs a day). The

prison obtained a directed verdict from the district court but the

court of appeals reversed in part, concluding that the lower court

erred by denying Helling the opportunity to prove his allegations

of unreasonable exposure to a future harm. Id. at 29.

The Supreme Court affirmed the court of appeals,

holding that Helling had alleged a sufficiently serious harm:

involuntary exposure to levels of second-hand smoke that

created an unreasonable risk of harm to future health. Id. at 35.
14

With respect to proving the objective element of a harm rising

to the level of a constitutionally serious deprivation on remand,

the Supreme Court stated Helling would have to prove that he

was exposed to “unreasonably high levels of ETS.” Id. Such a

showing requires “more than a scientific and statistical inquiry

into the seriousness of the potential harm and the likelihood that

such injury to health will actually be caused by exposure to

ETS.” Id. at 36. Objectively serious harm also requires an

assessment of society’s view of the risk; i.e., whether “it violates

contemporary standards of decency to expose anyone

unwillingly to such a risk.” Id. at 36. Thus, under Helling,

for Betts to satisfy the objective component of his claim he must

establish (1) the seriousness of the injury, (2) a sufficient

likelihood that serious injury will result from playing tackle

football without protective equipment, and (3) the risks

associated with permitting youth to play tackle football without

equipment violate contemporary standards of decency. Betts

easily meets the first factor, but fails the other two.

It goes without saying that quadriplegia is an

exceptionally serious harm. But Betts has presented no evidence

that playing tackle football without equipment poses a

“substantial risk” of serious harm. Instead, Betts argues that

“the risk of serious harm associated with allowing residents to

play tackle football without protective equipment is sufficiently

obvious that any reasonable adult would realize it.” Betts Br. at

19. We disagree with Betts’s assertion that the excessive nature

of the risk of serious injury from football is obvious.

In support of his claim that the risk of serious harm

inherent in playing tackle football without equipment is obvious,
 Despite the potential for serious injury, it appears such 9

injuries occur rarely. A comprehensive report from the National

Center for Catastrophic Injury Research—coauthored by one of

Betts’s experts—states that there are approximately 1.5 million

high school and middle school football players participating in

the sport each year. Frederick O. Mueller & Robert C. Cantu,

Catastrophic Sports Injury Research Twenty-Seventh Annual

Report, Fall 1982 - Spring 2009 (hereinafter “Report”),

avail a b l e at

http://www.unc.edu/depts/nccsi/2009ALLSPORT.pdf (last

15

Betts cites some of the Defendants’ admissions at their

depositions that playing football may result in serious injury.

Specifically, Betts notes that Counselor Stuart admitted he was

aware that New England Patriots wide receiver Darryl Stingley

was paralyzed after he was speared by Jack Tatum of the

Oakland Raiders during an NFL preseason game in 1978. But

the fact that football players have suffered grievous injuries

while playing the game sheds no light on the frequency or

likelihood of such injuries. The mere possibility that an injury

may result from an activity does not mean that there is a

“substantial risk” of that injury occurring. See Baze v. Rees, 553

U.S. 35, 50 (2008) (plurality) (“an isolated mishap alone does

not violate the Eighth Amendment . . . because such an event,

while regrettable, does not suggest . . . a ‘substantial risk’ of

serious harm.”). While Betts submitted expert reports

concluding that his injury was caused by his tackle and that

cervical spine injuries have occurred in other football games,

these reports offer no insight into the frequency or likelihood of

such injuries. See Rish v. Johnson, 131 F.3d 1092, 1099 (4th 9
visited August 17, 2010). The Report finds, based on statistics

collected over a 27-year period, that the rate of serious injury

(including death and paralysis) from football is “less than one

per 100,000 participants.” Id. at 8; see also accompanying data

t a b l e s a t 5 , avail abl e at

http://www.unc.edu/depts/nccsi/2009ALLSPORTTABLES.pdf

(last visited August 17, 2010).

16

Cir. 1997) (affidavit from infectious disease expert regarding

CDC-recommended precautions for preventing spread of disease

was insufficient to establish that risk of disease without

protective equipment was obvious).

Life is fraught with risk of serious harm and the sports

world is no exception. But an Eighth Amendment violation may

not be predicated on exposure to any risk of serious harm; the

risk must be “substantial.” See Helling, 509 U.S. at 33 (Eighth

Amendment claim may be based on a condition of confinement

“that is sure or very likely to cause serious illness and needless

suffering.”). Because the record in this case is devoid of

evidence from which a reasonable jury could conclude that

serious injury is a common or likely occurrence in tackle

football games, the District Court did not err in granting

Defendants summary judgment on Betts’s Eighth Amendment

claim.

Moreover, Betts has failed to show that the risk

complained of is one that society would refuse to tolerate. A

case from the Court of Appeals for the Seventh Circuit is

instructive in this regard. See Christopher v. Buss, 384 F.3d 879
17

(7th Cir. 2004). In Christopher, the Seventh Circuit affirmed

the dismissal of an inmate’s claim that prison authorities had

violated his Eighth Amendment rights by failing to correct a

“protrusive lip” on the prison softball field that permanently

injured his eye after the ball bounced off the lip. Id. at 880. The

Seventh Circuit held that, even if prison officials knew of and

purposefully ignored the defect on the field, the inmate’s

complaint would fail because “the risk of being hit by a softball

as a result of a hazardous field condition is not one that ‘today’s

society chooses not to tolerate.’” Id. at 882. “Rather, it is the

type of risk many encounter voluntarily when they play sports in

less-than-perfect playing conditions.” Id. (“To say that

‘exposure’ to [a substandard field] could violate the Eighth

Amendment would be to imply that prison officials violate the

Eighth Amendment by letting inmates play sports at all, because

the risk of injury, even serious injury, is inherent.”); see also

Austin v. Johnson, 328 F.3d 204, 209 (5th Cir. 2003)

(“Requiring youthful offenders to perform military-styled

exercises for one day is neither cruel nor unusual; it is a

deliberate policy choice to instill much-needed discipline.”). So

too here. The risks of injury posed by tackle football without

equipment do not violate contemporary standards of decency.

To the contrary, those risks are assumed daily by the

incarcerated and the free alike.

Drawing all inferences in favor of Betts, we hold that no

reasonable jury could find that allowing him to play tackle

football without protective equipment rises to the level of an

objectively serious deprivation of “the minimal civilized

measure of life’s necessities.” Thus, Betts has failed to present
18

a genuine dispute of fact regarding the existence of the objective

component of an Eighth Amendment violation.

The District Court also held that Betts failed to establish

the subjective element of his Eighth Amendment claim: that

Defendants were deliberately indifferent to a substantial risk of

harm because there was no evidence of a record of injuries

during football games at YDC. Betts argues that he has

presented adequate evidence of deliberate indifference in the

form of: (1) Defendants’ deposition testimony acknowledging

the dangers associated with playing football and the increased

risk of harm from playing without equipment; (2) Defendants’

admitted failure to train the residents of YDC about proper

tackling techniques; and (3) expert reports opining that the

Defendants exposed Betts to an unreasonable risk and showed

a conscious disregard for his safety.

As explained by the Supreme Court:

Not every governmental action affecting the

interests or well-being of a prisoner is subject to

Eighth Amendment scrutiny, however. “After

incarceration, only the ‘unnecessary and wanton

infliction of pain’ . . . constitutes cruel and

unusual punishment forbidden by the Eighth

Amendment.” To 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. . . . It is obduracy and wantonness, not

inadvertence or error in good faith, that
19

characterize 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.

Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal citations

omitted).

Here, to show the requisite culpability of YDC staff

members, Betts must demonstrate that Defendants were “aware

of facts from which the inference could be drawn that a

substantial risk of harm exists,” and that they “also dr[e]w the

inference.” Farmer, 511 U.S. at 837. To overcome a motion for

summary judgment, a plaintiff “‘must come forward with

evidence from which it can be inferred that the defendantofficials were . . . knowingly and unreasonably disregarding an

objectively intolerable risk of harm.’” Beers-Capitol, 256 F.3d

at 132 (quoting Farmer 511 U.S. at 846). A plaintiff may

demonstrate deliberate indifference by showing that the risk of

harm was “longstanding, pervasive, well-documented, or

expressly noted by prison officials in the past” such that the

defendants “must have known” about the risk. Farmer, 511

U.S. at 842-43 (internal quotations omitted). Betts has failed

to make the requisite showing of deliberate indifference. As

previously explained, it is not obvious that the risks associated

with playing tackle football without equipment are

unreasonable. Although Betts correctly notes that Defendants

acknowledged that playing football could result in grievous

injury, and that the risk of injury could increase without
20

protective equipment, this does not satisfy the legal standard of

deliberate indifference to a substantial risk of serious harm.

Moreover, there is no evidence of prior serious injuries resulting

from resident football games at YDC. Thus, the evidence is

insufficient to raise a genuine dispute of material fact regarding

deliberate indifference in this case. Accordingly, the District

Court did not err in rejecting Betts’s Eighth Amendment claim.

V.

Finally, we turn to Betts’s Fourteenth Amendment claim

that he was deprived of substantive due process. Specifically,

Betts contends Defendants were deliberately indifferent to his

liberty interest in bodily integrity and that allowing him to play

tackle football without equipment constituted a state-created

danger. The District Court rejected both claims, reasoning: (1)

because the deliberate indifference necessary for a violation of

due process is the same as that for Eighth Amendment

violations, Betts’s failure to show deliberate indifference in the

Eighth Amendment context doomed his substantive due process

claim; and (2) Betts failed to establish a state-created danger

because the alleged behavior did not shock the conscience.

Betts, 2009 WL 2913846, at *6-7.

To support his substantive due process claims, Betts

points to the same evidence he cited in support of his Eighth

Amendment claim. Defendants argue that these claims are

barred by the “more-specific-provision rule” because Betts’s

complaints concerning the conditions of his confinement are

properly cognizable under the Eighth Amendment. In the
21

alternative, Defendants contend that the District Court properly

found evidence of deliberate indifference to be lacking. 

Noting its “reluctan[ce] to expand the concept of

substantive due process,” the Supreme Court has established the

“more-specific-provision rule.” County of Sacramento v. Lewis,

523 U.S. 833, 843-44 (1998). Under this rule, “if a

constitutional claim is covered by a specific constitutional

provision, such as the Fourth or Eighth Amendment, the claim

must be analyzed under the standard appropriate to that specific

provision, not under the rubric of substantive due process.”

United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (clarifying

prior holing in Graham v. Connor, 490 U.S. 386 (1989)). The

Supreme Court explained the rationale behind the rule for

Eighth Amendment claims in Whitley v. Albers, where a

prisoner shot in the leg during a prison riot filed both Eighth

Amendment and Fourteenth Amendment substantive due

process claims against prison officials:

[T]he Eighth Amendment, which is specifically

concerned with the unnecessary and wanton

infliction of pain in penal institutions, serves as

the primary source of substantive protection to

convicted prisoners in cases such as this one,

where the deliberate use of force is challenged as

excessive and unjustified. It would indeed be

surprising if, in the context of forceful prison

security measures, “conduct that shocks the

conscience” or “afford[s] brutality the cloak of

law,” and so violates the Fourteenth Amendment,

were not also punishment “inconsistent with
22

contemporary standards of decency” and

“‘repugnant to the conscience of mankind,’” in

violation of the Eighth. . . . [I]n these

circumstances the Due Process Clause affords

respondent no greater protection than does the

Cruel and Unusual Punishments Clause.

475 U.S. at 327 (internal citations omitted). Compare with

County of Sacramento, 523 U.S. at 843 (rejecting application of

more-specific-provision rule to substantive due process claim

arising from high speed police chase because facts were not

within “search and seizure” protections of Fourth Amendment).

Although we have not previously applied the morespecific-provision rule in a precedential opinion, at least four of

our sister circuit courts of appeals have done so. See United

States v. Hernandez, 333 F.3d 1168, 1174 (10th Cir. 2003)

(analyzing Plaintiff’s allegations of governmental invasion of

his attorney-client relationship only under Sixth Amendment

right to counsel and not under Fifth Amendment Due Process

Clause because “[w]here a litigant challenges governmental

action under the Due Process Clause and under another, more

specific constitutional provision, we analyze the claim under the

latter, more specific provision”); Austin, 328 F.3d 204, 210 n.10

(5th Cir. 2003) (construing boot camp detainee’s complaint as

raising claims under only Eighth Amendment: “[b]ecause the

Eighth Amendment, as ‘an explicit textual source of

constitutional protection,’ defines the limits of government

action, it controls over ‘the more generalized notion of

substantive due process.’” (quoting Graham v. Connor, 490 U.S.

at 395 (1989)); Galbraith v. County of Santa Clara, 307 F.3d
 In light of our adoption of the more-specific-provision 10

rule, we need not address Betts’s arguments under the

Fourteenth Amendment regarding deliberate indifference to his

right to bodily integrity or the state-created danger doctrine.

23

1119, 1127 (9th Cir. 2002) (dismissing arrestee’s substantive

due process claim against county coroner alleging falsification

of autopsy report because claim fell within more specific

provision of the Fourth Amendment); Tesch v. County of Green

Lake, 157 F.3d 465, 471-72 (7th Cir. 1998) (holding that

wheelchair-bound arrestee could not pursue substantive due

process claim alleging unnecessary exposure to danger during

arrest because allegations fell within more specific provisions of

a Fourth Amendment claim for excessive force and

unreasonable seizure).

Betts does not cite any case law for the proposition that

he may bring both substantive due process and Eighth

Amendment claims challenging the same conduct. Moreover,

Betts’s claims concern his conditions of confinement and an

alleged failure by Defendants to ensure his safety. Because

these allegations fit squarely within the Eighth Amendment’s

prohibition on cruel and unusual punishment, we hold that the

more-specific-provision rule forecloses Betts’s substantive due

process claims.10

VI.

In sum, we will affirm the District Court’s summary

judgment in favor of YDC and its staff in their official
24

capacities because YDC is an arm of the state entitled to

Eleventh Amendment immunity. We will also affirm the

District Court’s summary judgment for the individual

Defendants on the merits of Betts’s Eighth Amendment claim

because Betts failed to show a substantial risk of serious harm

that violates contemporary standards of decency and failed to

show deliberate indifference. Finally, our adoption of the morespecific-provision rule obviates the need to address Betts’s

Fourteenth Amendment substantive due process claims.