Betts v. New Castle Youth Development Center

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
 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

2
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.

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

4
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.2 An ambulance transported Betts to a local
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.

2
Betts testified that the residents always played tackle
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
 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

3
The District Court also dismissed Betts’s claims under
the Fourth and Fifth Amendments to the United States
Constitution, but Betts has not preserved those claims for
appeal.

6
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

4
The Supreme Court has explained—and we have
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
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.

5
The Commonwealth of Pennsylvania has not waived its
rights under the Eleventh Amendment in this case. See 42 P A.
C ONS. S TAT. § 8521(b).

8
 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 P A.
C ONS. S TAT. § 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

9
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 P A. C ONS. S TAT. § 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

10
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.

6
That YDC did not have a Board of Trustees in place for
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 P A. C ONS. S TAT. § 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
 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 7 in their
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

7
Specifically, Betts sued Kenneth Went, Director of
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
(1984)).8 For an alleged deprivation to rise to the level of an
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.

8
An allegation of an Eighth Amendment violation by a
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
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,

14
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.9 See Rish v. Johnson, 131 F.3d 1092, 1099 (4th

9
Despite the potential for serious injury, it appears such
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”),
a v a i l a b l e a t
http://www.unc.edu/depts/nccsi/2009ALLSPORT.pdf (last

15
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

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 , a v a i l a b l e a t
http://www.unc.edu/depts/nccsi/2009ALLSPORTTABLES.pdf
(last visited August 17, 2010).

16
(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

17
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

18
 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 defendant-
officials 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

19
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

20
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

21
 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 more-
specific-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

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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

10
In light of our adoption of the more-specific-provision
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.

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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 more-
specific-provision rule obviates the need to address Betts’s
Fourteenth Amendment substantive due process claims.

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