Defending 8th Amendment Claims Against Medical Providers
The Eighth Amendment to the United States Constitution states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) The federal courts have developed a considerable body of law related to prisoner lawsuits alleging an Eighth Amendment violation by medical providers, i.e., the medical care provided to the inmate was so poor it gives rise to a claim of “cruel and unusual punishment.”
Typically, fee shifting statutes are involved, which require the losing medical provider to pay the attorneys’ fees of the winning plaintiff. See, e.g., 42 U.S.C. §1988. With a large prison population in the United States, almost every medical provider will treat an inmate at some point in his or her career. With this confluence of medicine and prison inmates, corporate and in-house counsel for medical providers need to be aware that these lawsuits can arise.
The application of the Eighth Amendment to inmate medical treatment is grounded on the fundamental notion that the Amendment not only prohibits excessive force, but also requires that prisoners be afforded “humane conditions of confinement,” so that prison officials “ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). While prison conditions are inherently “restrictive and even harsh,” adverse conditions should serve a corrective function. Id. (internal citations omitted).
Eighth Amendment claims may have a broader reach than the phrase “cruel and unusual punishment” may suggest. But, as discussed below, case law describing the standard of behavior proscribed by the Eighth Amendment can afford medical providers faced with Eighth Amendment claims with opportunities for early dismissal. This article will provide pointers for the defense of a typical Eighth Amendment claim. Additionally, this article discusses other applicable doctrines and rules of evidence that are necessarily implicated in prisoner suits, which should not be overlooked.
When Does the Eighth Amendment Apply to a Medical Provider?
In general, the applicability of the Eighth Amendment to a medical provider will differ depending on whether the services at issue were rendered to an inmate in (1) federal prison, or (2) a state or local prison. In regards to federal prisons, the United States Supreme Court implied an Eighth Amendment claim against federally employed medical providers in Carlson v. Green, 446 U.S. 14 (1980), expanding the seminal ruling of Bivens v. Six Unknown Fed. Narcotic Agents, 403 U.S. 388 (1971). With the increasing privatization of prison care, however, the federal government has contracted with companies to provide medical care to its inmates. The United States Supreme Court has refused to extend Eighth Amendment claims to these private companies and their employees. See Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001); Minneci v. Pollard, __ U.S. __, 132 S.Ct. 617 (2012). The rationale for this distinction is that the inmate has a state law remedy against the federal contractor and its employees under traditional state tort law. Therefore, private medical providers who have contracted with the federal government to provide medical care to federal inmates are not liable under the Eighth Amendment.
An entirely different, less favorable, paradigm applies to state and local prisons and the medical providers therein. This body of law applies to claims asserted against employees of state and local prisons, private contractors that provide medical services at state and local prisons, and even outside consultants. Generally, the Fourteenth Amendment to the United States Constitution makes the Eighth Amendment applicable to states. Furman v. Georgia, 408 U.S. 238 (1972). Under 42 U.S.C. §1983, a claim can be made against the state or local governing body for an Eighth Amendment violation. See, e.g., Estelle v. Gamble, 429 U.S. 97 (1976). Moreover, case law allows Eighth Amendment claims against private medical providers who have contracted with a state or local entity to provide medical care to those inmates, even where the private medical provider’s prison work is a small percentage of his practice. West v. Atkins, 487 U.S. 42 (1988). In West, the defendant orthopedic physician had contracted with North Carolina to provide two clinics each week at the state prison, but he maintained a private practice outside of the prison system. The Supreme Court stated that the physician was acting under color of state law, such that he became a “state actor.” Id. at 55–56. Therefore, the physician could be liable to the inmate under the Eighth Amendment.
A slightly different analysis applies to the entities that employ private medical providers who render medical services to state and local prison inmates. Generally, the entity that employs the private medical provider is not liable under respondeat superior. See Natale v. Camden City Corr. Facility, 318 F.3d 575 (3rd Cir. 2003). However, the corporate entity may be liable if it has a policy, custom, or practice that caused the constitutional violation. See, e.g., Monell v. Department of Social Services, 436 U.S. 658 (1978); but see Shields v. Illinois Dept. of Corrections, 746 F.3d 782 (7th Cir. 2014) (discussing why Monell should not be extended to limit corporate liability under 42 U.S.C. §1983).
Finally, there appears to be a split of authority regarding whether outside consultants who see the inmate solely in a private practice setting and who have not contracted with the state or local prison system are liable under the Eighth Amendment. The Seventh Circuit has held that “medical providers who have ‘only an incidental and transitory relationship’ with the penal system are generally not considered state actors.” Shields, 746 F.3d at 797-98 (quoting Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 827 (7th Cir. 2008)).
In contrast the Fourth Circuit, Conner v. Donnelly, 42 F.3d 220 (4th Cir. 1994), found that a private physician, who only saw the inmate in his private office, and who did not have a contract with the Commonwealth of Virginia, could be liable under the Eighth Amendment.
Regardless of whether the private physician has a contractual duty or simply treats a prisoner without a formal arrangement with the prison, the physician’s function within the state system is the same: the state authorizes the physician to provide medical care to the prisoner, and the prisoner has no choice but to accept the treatment offered by the physician. Even where a physician does not have a contractual relationship with the state, the physician can treat a prisoner only with the state’s authorization. If a physician treating a prisoner—whether by contract or by referral—misuses his power by demonstrating deliberate indifference to the prisoner’s serious medical needs, the prisoner suffers a deprivation under color of state law.
Id. at 225 (emphasis added). Therefore, there is a good chance that anytime a medical provider treats an inmate, even in his or her private medical office, that he or she can be liable under the Eighth Amendment.
Initial Analysis of the Eighth Amendment Claim
Typically, a claim for a violation of the Eighth Amendment will be coupled with state law claims, like a claim for medical malpractice. If the complaint is filed in state court, it may be beneficial to remove the matter to federal court under 28 U.S.C. §1331. Deciding whether to remove the action will depend on several factors, including familiarity with the judge in the state court action, different pleading and dispositive motion standards applicable in federal and state tribunals, and the potential that the federal court might dismiss the federal claims but allow the state claims to be refiled in state court. See 28 U.S.C. §1367(c).
As with any case, threshold defenses such as those involving improper service of process or failure to exhaust administrative remedies should be reviewed. Generally, the Prison Litigation Reform Act (PLRA), 42 U.S.C. §1997, et seq., precludes prisoners from bringing suit under 42 U.S.C. §1983 until they have exhausted their administrative remedies, which can include establishing that sufficiently specific medical grievances were submitted through prison procedures and denied. See, e.g., 42 U.S.C. §1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001); Porter v. Nussle, 534 U.S. 516, 532 (2002). If a claimant is proceeding pro se, he or she may have neglected to comply with his or her duties regarding administrative remedies or service of process.
Once the analysis of the complaint and other Rule 12 defenses is complete, the typical course of action is to file a motion to dismiss. This is important for two reasons: (1) many Eighth Amendment claims are facially invalid, as discussed below; and (2) the defense of qualified immunity allows for an immediate interlocutory appeal if the trial court fails to find that the suit is barred by immunity. Please note that the interlocutory appeal can also be taken at the close of discovery if the trial court overrules the summary judgment motion. See Mitchell v. Forsyth, 472 U.S. 511 (1985).
Deliberate Indifference
Many complaints that purport to assert claims under the Eighth Amendment fail to allege conduct that actually implicates the Eighth Amendment. In the seminal case of Estelle, the Supreme Court held that “[i]n order to state a cognizable claim [under the Eighth Amendment with regard to medical care] a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to the plaintiff’s serious medical needs.” Estelle, 429 U.S. at 106. “A prison official is deliberately indifferent if she knows of and disregards a serious medical need or a substantial risk to an inmate’s safety.” Saylor v. Nebraska, 812 F.3d 637, 644 (8th Cir. 2016) (quoting Farmer, 511 U.S. at 837 (1994)). Thus, to survive a motion to dismiss, an inmate must allege (1) a serious medical need and (2) deliberate indifference on the part of the medical provider. This is essentially an objective and subjective test wherein the prisoner must allege: (1) an objectively serious injury; and (2) that the official acted with a “sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).
As a matter of law, not every perceived physical condition constitutes a serious medical need. “A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Youmans v. Gagnon, 626 F.3d 557, 564 (11th Cir. 2010) (internal quotations and citations omitted). “In general, serious medical needs are those requiring immediate medical attention.” Id. (internal quotations and citations omitted). Courts have found that “serious medical needs” would include a heart attack (Plemmons v. Roberts, 439 F.3d 818 (8th Cir. 2006)); abdominal pain (Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014)); and stroke (Pimentel v. Deboo, 411 F.Supp.2d 118 (D. Conn. 2006)). This prong of the deliberate indifference test can often provide grounds for an early dismissal, for example, when the inmate claims bruises and scrapes (Valdes v. Crosby, 390 F.Supp.2d 1084 (M.D. Fla. 2005)); leg swelling (Jarriett v. Wilson, 162 Fed. App’x. 395 (6th Cir. 2005)); and discomfort from handcuffs (Ochs v. Thalacker, 90 F.3d 293 (8th Cir. 1996)).
Similarly, the subjective prong of an Eighth Amendment claim should not be overlooked. The Supreme Court, in Wilson v. Sieter, recognized that the Eighth Amendment bars sadistic forms of punishment and, accordingly, defined the subjective “deliberate indifference” component of an Eighth Amendment claim as follows: “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by” the Eighth Amendment. Seiter, 501 U.S. at 299. Thus, to satisfy the subjective portion of an Eighth Amendment claim for inadequate medical care, a prisoner must allege “more than mere negligence, but ‘something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.’” Foy v. City of Berea, 58 F.3d 227, 232 (6th Cir. 1995)(quoting Farmer, 511 U.S. 825). This has been further refined to mean reckless conduct. Farmer, 511 U.S. at 836.
Mere allegations of medical malpractice or negligent diagnosis are not cognizable; furthermore, allegations of a difference in opinion between the inmate and his physician regarding the inmate’s treatment are not sufficient to state a claim. Estelle, 429 U.S. at 106-107. The receipt of some medical care, however, will not automatically defeat an Eighth Amendment claim. Further, deliberate indifference can be sufficiently pleaded through alleged conduct such as medical providers acting contrary to the recommendations of a specialist; delays in medical treatment for a nonmedical reason that exacerbated pain; or the administration of “blatantly inappropriate care.” Perez v. Fenoglio, 792 F.3d 768, 777 (11th Cir. 2014). When reviewing a complaint for a possible failure to state a claim under the Eighth Amendment, it is important to analyze thoroughly whether acts and omissions alleged against a medical provider rise to the level of “cruel and unusual punishment” prohibited by the Eighth Amendment.
Qualified Immunity
The other threshold argument to consider is qualified immunity. The United States Supreme Court has held that a government official who performs discretionary functions is shielded from liability for civil damages insofar as his conduct passes a two-step test. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As the Court explained in Mitchell, 472 U.S. at 526, qualified immunity:
is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.
The Supreme Court held that the defense of qualified immunity is available except where the court finds that: (1) the “facts alleged show the officer’s conduct violated a constitutional right” of which a reasonable person would have known; and (2) the violated “right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme Court subsequently ruled that a court can consider these prongs in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
The first prong essentially inquires whether the alleged wrongful act violates the Eighth Amendment. The second prong inquires whether, even if a constitutional violation is present, the right was so firmly established that the medical provider knew his or her actions were unconstitutional. A right is “clearly established” when it is “sufficiently clear that a reasonable official would understand that what he is doing violates that right.… [thus] in the light of pre-existing law the unlawfulness of the [official action] must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Consequently, this defense is appropriate where a reasonable person “could have failed to appreciate [that the plaintiff’s rights] would be violated by his conduct.” Pray v. Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995). In order for a law to be clearly established, there must be “a particularized body of precedent that squarely govern[s]” the cause of action. Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005). If reasonably competent state actors could disagree on whether an action violates a plaintiff’s rights, courts generally err on the side of recognizing immunity. See Humphrey v. Mabry, 482 F.3d 840 (6th Cir. 2007). Accordingly, defense counsel should review case law within the applicable jurisdiction to determine whether the conduct alleged on the part of the medical provider has been addressed through precedent.
This defense, however, is not available to employees of a private corporation providing medical care to inmates, or a private medical provider seeing an inmate at her office. See Richardson v. McKnight, 521 U.S. 399 (1997). The Supreme Court has held:
Since there are no special reasons significantly favoring an extension of governmental immunity, and since… private actors are not automatically immune (i.e., §1983 immunity does not automatically follow §1983 liability), we must conclude that private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a §1983 case.
Id. at 412. Therefore, a private medical provider can be liable for an Eighth Amendment violation, but he or she does not enjoy the benefits of qualified immunity.
Federal Rule of Evidence 609
If the case proceeds past the initial motion phase, it will be litigated as a typical medical malpractice case. However, if the case survives summary judgment and is proceeding to trial, do not forget the importance of FRE 609 to an inmate lawsuit. FRE 609(a)(1)(A) states as follows:
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant.
The United States Congress, in enacting FRE 609, made a determination that evidence of a witness’ felony convictions is relevant because it goes towards the “witness’s character for truthfulness.” See FRE 609(a)(1)(A). “The implicit assumption of [FRE] 609 is that prior felony convictions have probative value, and that probative value is likely to vary depending on the number and type of convictions.” United States v. Burston, 159 F.3d 1328, 1336 (11th Cir. 1998) (citing 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure §6134, at 221-27 (1993)). Indeed, FRE 609(a)(1)(A) uses the phrase “must be admitted,” mandating that the trial court admit evidence of felony convictions unless a conviction fails the balancing test of FRE 403.
Evidence that is admissible under FRE 609 extends beyond the bare fact that a witness is a felon. For example, in Burston, the Georgia criminal defendant alleged that the trial court erred in prohibiting the impeachment of a government witness through the witness’ four felony convictions. “The district court limited [the defendant] to evidence that [the witness] has a ‘felony conviction,’ apparently on the ground that testimony as to the nature and number of [the witness’] convictions lacked probative value.” Id. at 1334. Citing to supporting cases from the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, the Eleventh Circuit found this ruling to be error, though harmless.
[The probative value of felony convictions], however, necessarily varies with their nature and number.… Evidence of a murder conviction says something far different about a witness’ credibility than evidence for a minor drug offense, although both may constitute a prior felony conviction. Furthermore, evidence of fifteen murder convictions says something different about a witness’ credibility than evidence of only one such conviction. We are not certain what evidence of two convictions for theft by unlawful taking, one conviction for armed robbery and one conviction for aggravated assault says about [the witness’] credibility, but we are certain that the jury should have been given the opportunity to make that decision.
Burston, 159 F.3d at 1335 (emphasis added) (citing Doe v. Sullivan County, 956 F.2d 545, 551 (6th Cir. 1992)). The Eleventh Circuit stated that “[w]e therefore conclude that [FRE] 609(a)(1) requires a district court to admit evidence of the nature and number of a non-defendant witness’ prior felony convictions.” Id. at 1336.
The Sixth Circuit has taken a similar approach. See, e.g., Donald v. Wilson, 847 F.2d 1191, 1197 (6th Cir. 1988). In Wilson, the plaintiff was an inmate at the Southern Ohio Correctional Facility serving time for rape. He alleged personal and constitutional injuries when he slipped in the shower after his prosthesis was taken from him; and in being forcibly removed from his jail cell. Id. at 1193. At trial, the inmate plaintiff ’s rape conviction was admitted over his objection. The Sixth Circuit held the admission of the rape conviction proper, in part because the inmate was a plaintiff in a civil lawsuit. Id. at 1195.
In conducting the FRE 403 balancing test required under FRE 609, the Sixth Circuit stated affirmatively: “we cannot say the probative value of the prior conviction [rape] was substantially outweighed by prejudice.” Id. at 1197. In reaching this decision, the Sixth Circuit was “influenced by the fact that the jury already knew the plaintiff was a convicted felon as the entire scenario unfold[ed] in a jail. Thus, we do not have the interjection of the criminal record of a witness out of the blue.” Id. At 1198.
Based upon this case law, an inmate plaintiff can be attacked with the nature and number of the felony convictions. Since the FRE 403 balancing test requires that the prejudice substantially outweigh the probative nature of the felony conviction, exclusion will be the exception and not the rule. In the hands of a good defense counsel, FRE 609 becomes a potent cross examination tool.
Conclusion
Although the phrase “cruel and unusual punishment” conjures images of severe deprivation akin to torture, the case law surrounding the Eighth Amendment has extended it far beyond what “cruel and unusual” may suggest to a layperson. An Eighth Amendment claim is now a potential component of inmate suits against private medical providers, who see inmates briefly in their practice. Abundant case law, however, allows counsel for these providers to seek an early dismissal successfully when the allegations of the complaint fail to constitute a sufficiently serious medical condition or reckless conduct on the part of the provider. Moreover, the basic nature of inmate suits provides counsel with additional tools in his or her arsenal that should not be overlooked in the defense of these medical providers.
Originally published in DRI In House Defense Quarterly, Summer 2016. This article is intended as a summary of state and/or federal law and does not constitute legal advice.
