Hare v. City of Corinth, Miss.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-7192

RICHARD HARE, Natural Father and Next
Friend of Haley Hare, a minor, ET AL.,
Plaintiff-Appellee,

versus

CITY OF CORINTH, MS, A municipal
corporation, ET AL.,
Defendants,

FRED JOHNSON, etc., BILLY BURNS, etc.,
JAMES DAMONS, etc., BRENDA MOORE, etc.,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Mississippi

January 29, 1996

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

GARWOOD and HIGGINBOTHAM, Circuit Judges:

Today we again visit the measures of liability under the U.S.

Constitution for failing to prevent a suicide by a pretrial

detainee. Tina Hare committed suicide while detained in the city

jail in Corinth, Mississippi. Her husband, Richard Hare, sued

municipal and individual defendants under 42 U.S.C. § 1983. The

district court denied summary judgment. This appeal by individual

defendants claiming qualified immunity followed. A panel of this

court dismissed their appeal. We elected to hear the case en banc,
and now find that the district court applied an erroneous legal

standard in denying summary judgment on qualified immunity grounds.

We hold that the episodic act or omission of a state jail official

does not violate a pretrial detainee's due process right to medical

care or protection from suicide unless the official acted or failed

to act with subjective deliberate indifference to the detainee's

rights, as defined in Farmer v. Brennan, 114 S. Ct. 1970 (1994).

We vacate and remand for review of the claims of qualified immunity

under the correct legal standard.

I.

Richard Hare sued the City of Corinth, the city's Board of

Aldermen, Corinth Mayor Edward Bishop, former Corinth Mayor Jack

Holt, and Police Captain Billy Burns, Police Chief Fred Johnson,

Officer Brenda Moore, and Captain James Damons in their individual

and official capacities. Mr. Hare sued under 42 U.S.C. § 1983,

alleging violations of the Fourth, Fifth, Eighth, and Fourteenth

Amendments of the U.S. Constitution, and of Mississippi's wrongful

death statute. After discovery, Burns, Johnson, Moore, and Damons

moved for summary judgment asserting qualified immunity. Mr. Hare

in turn moved for summary judgment. The district court granted

defendants summary judgment on Mr. Hare's state-law claims, but

declined to enter judgment upon the § 1983 claims. It found that

there were genuine issues of material fact as to whether Ms. Hare

was deprived of rights protected under the Due Process Clause of

2
the Fourteenth Amendment. The district court also rejected Mr.

Hare's cross-motion for summary judgment.

Those individual defendants claiming qualified immunity

appealed the denial of their motion for summary judgment. A panel

of this court dismissed the defendants' appeal. See Hare v. City

of Corinth, 22 F.2d 612 (5th Cir. 1994). The panel found that Mr.

Hare had alleged a violation of Ms. Hare's clearly established

federal due process right to medical attention for her suicidal

tendencies, and that there were genuine issues of material fact as

to whether the defendants' inaction manifested deliberate

indifference. The panel concluded that because the defendants'

appeal presented "more than a pure question of law the denial of

summary judgment [was] not appealable." Id. at 616.

On October 13, 1994, the panel substituted a revised opinion

dismissing the appeal under a different analysis. Relying on Bell

v. Wolfish, 441 U.S. 520 (1979), the panel concluded (1) that Ms.

Hare had a clearly established due process right to reasonable care

for her serious medical needs unless failure to supply such care

was reasonably related to a legitimate governmental objective, and

(2) that there were fact issues precluding summary judgment and

rendering the denial of summary judgment not appealable. See Hare

v. City of Corinth, 36 F.3d 412 (5th Cir. 1994).

II.

Viewing the summary judgment evidence most favorably to Mr.

Hare, the following transpired:

3
 Shortly after midnight on the morning of July 14, 1989, the

Booneville Police Department notified the Corinth Police Department

that Ms. Hare had been arrested in Booneville on warrants for petty

larceny and forgery. Officer Larry Fuqua of the Corinth Police

Department immediately went to Booneville to pick up Ms. Hare, at

which time the Booneville police informed Fuqua that Ms. Hare was

a "heavy drug user." Fuqua took Ms. Hare to the Corinth City Jail,

where she was jailed at approximately 1:45 a.m.

Ms. Hare's husband, Mr. Hare, testified in his deposition that

Ms. Hare called him just after she was jailed. Mr. Hare testified

that his wife had never been in jail before, and that she seemed

scared and frightened. Ms. Hare told her husband that nothing

could be done to secure her release until after 8:00 a.m., so he

went back to sleep. Later that morning, at around 6:00 a.m., Mr.

Hare contacted Ms. Hare's divorced parents, Guy Taylor and Patricia

Morgan, to inform them that their daughter was in the Corinth jail

and needed help. Shortly thereafter, Mr. Hare met with Ms. Hare's

parents; they decided that Ms. Hare's parents would go to the jail

at 8:00 a.m. to seek their daughter's release, leaving Mr. Hare at

home to care for the Hares' baby daughter. When Ms. Hare's parents

went to the jail at around 8:00 a.m., however, Burns told them that

Ms. Hare was not ready for release, and that it would take more

time to complete the investigation of their daughter. Accordingly,

Burns told the parents to return home and wait for his call.

In his deposition, Burns testified that he was informed that

Ms. Hare was a suspect in a check forgery case, and that he first

4
met with Ms. Hare to interview her at approximately 10 a.m. on July

14, 1989. During this interview, Ms. Hare told Burns that she had

been forging checks and cashing them to finance her dilaudid

addiction. According to Burns, Ms. Hare was depressed about being

in jail, and was sitting with both feet in her chair in a

defensive, "fetal-type" position. Ms. Hare said that she was an

unfit mother and expressed concern about how her husband would

react to her predicament. Burns observed that Ms. Hare was going

through withdrawal, which he understood to be a normal reaction to

her drug use; he also learned at that time that Ms. Hare was

scheduled to enter a drug rehabilitation program the next day, July

15, 1989, in Tupelo, Mississippi. Burns indicated that Ms. Hare's

mood improved later in the interview when she learned that her bond

amount would not be as high as she initially had expected.

After the interview, Burns placed Ms. Hare in a private cell

and told the dispatcher, Brenda Moore, to monitor Ms. Hare in case

her withdrawal symptoms required medical attention. Ms. Hare was

allowed to call her parents to ask them to return to the jail to

assist with her bond so that she could be released that afternoon.

These plans never materialized, apparently in part because of

Burns' displeasure over Ms. Hare's attempt to destroy a videotape

on which the interview had been recorded.1 Also, in the meantime,

the Corinth police had received word of additional charges on Ms.

1
Burns had been videotaping the interview, and at some point
he left the room briefly. When he returned, he discovered that Ms.
Hare had substituted another tape for the one that was previously
in the recorder. The tape on which the interview had been recorded
was found in a garbage can in damaged condition.

5
Hare. When Ms. Hare's parents arrived at the jail at around noon,

Burns told them that Ms. Hare could not go home at that time.

Though Ms. Hare was not released, she was allowed to visit

with her parents from around 2:00 p.m. to 3:00 p.m. During this

private meeting, Ms. Hare's mother described Ms. Hare as

"emotionally distraught." Burns likewise described Ms. Hare's mood

as "hyper" and "frantic" while her parents were at the jail. Ms.

Hare attempted to convince Burns not to hold her in jail another

night and threatened to commit suicide if he did. While Burns did

not consider the threat serious, Ms. Hare's father testified that

he believed that she was serious, observing that she had made the

suicide threat in a serious, believable tone of voice. Burns

acknowledged that it was possible that Ms. Hare said to him that

"her life was in his hands," but said that he could not

specifically remember whether she said those words to him. In any

event, Ms. Hare's threat prompted her father to seek assurance from

Burns that Ms. Hare would be safe. Burns acknowledges telling Ms.

Hare's father that the police would do "everything within [their]

power to make sure that nothing did happen to her."

After Ms. Hare's parents left the jail, Burns returned Ms.

Hare to her original cell. Burns subsequently moved her to an

isolated cell nearest the camera monitors and trusty station,

claiming that Police Chief Fred Johnson instructed him to do so.

Johnson denies that he ever gave Burns such an instruction. Since

Ms. Hare had been strip-searched previously, Burns searched her

cell, took her shoes, and made sure that she did not have a belt.

6
Burns saw a blanket on the bunk and considered the possibility that

Ms. Hare might use it to harm herself, but left it there believing

that she was not strong enough to tear it. Burns instructed

dispatcher Moore to keep a close check on Ms. Hare and to have the

trusties check on her. According to Burns, his primary concern was

Ms. Hare's "withdrawal syndrome," not her suicide threat.

Moore confirms that Burns told her to keep an eye on Ms. Hare,

and that he also apprised her of Ms. Hare's threat to harm herself.

Burns, however, believed that Moore would be on duty until 10:00

p.m, when in fact she was off duty at 5:00 p.m.. Moore thus went

home at 5:00 p.m., at which time Captain James Damons took over her

dispatching duties. Moore claims that she informed Damons that

Burns had left instructions to keep an eye on Ms. Hare, though

Damons denies receiving such information.

Burns left the station some time after 3:00 p.m. At around

6:00 p.m., Burns called the jail from his home and told Damons to

have the two trusties check on Ms. Hare at least every forty-five

minutes. Damons promptly sent a trusty to check on Ms. Hare. When

the trusty arrived at Ms. Hare's cell, he found her hanging from

the bars of her cell with a noose that she had fashioned from

strips of the blanket. As the trusty did not have a key to Ms.

Hare's cell, he immediately notified Damons. Damons, in accordance

with jail procedures, could not leave his post, so he called Burns.

Ms. Hare was left there hanging, though the summary judgment

evidence does not establish whether she was alive or dead when the

7
trusty first found her. Burns told Damons to leave Ms. Hare

undisturbed until the State Investigator arrived.

III.

We first determine whether the district court's denial of the

motion for summary judgment by the individual defendants asserting

qualified immunity was immediately appealable under Mitchell v.

Forsyth, 472 U.S. 511 (1985). After the panel issued its opinions

in this case but before rehearing en banc, the Supreme Court

addressed the appealability of a denial of summary judgment on

qualified immunity grounds in Johnson v. Jones, 115 S. Ct. 2151

(1995). In Johnson, the plaintiff sued five police officers who

had allegedly beaten him. Three of the officers claimed qualified

immunity in their motion for summary judgment, arguing that there

was no evidence that they were involved in the plaintiff's beating.

The district court denied their summary judgment motion, and they

appealed to the Seventh Circuit. The Seventh Circuit dismissed the

officers' appeal, finding that it lacked appellate jurisdiction

over such an "evidence insufficiency" contention. The Supreme

Court affirmed the Seventh Circuit's dismissal, holding that a

district court's summary judgment order, though entered in a

qualified immunity case, is not appealable if it determines only a

question of "evidence sufficiency." Id. at 2156.

In this case, the district court denied the summary judgment

motion of the individual defendants after concluding that there

were fact issues as to whether they knew or should have known of

8
Ms. Hare's suicide risk. The individual defendants contend that,

even conceding the facts as alleged by Mr. Hare, they are entitled

to qualified immunity because their conduct did not violate any

clearly established federal rights of which a reasonable officer

would have known at the time of Ms. Hare's suicide. The critical

question is whether, given the demurrer to the plaintiff's facts,

we have jurisdiction over this appeal.

We find that we do. As we will explain, the district court

applied the incorrect legal standard in denying summary judgment.

We leave to the district court the question whether there are

genuine issues of material fact measured by the correct standard.

This appeal does not present the fact-intensive inquiry eschewed by

Johnson. Rather, it presents a legal issue antecedent to the

determination of whether there are genuine issues of material fact.

Our review of the legal issues in this appeal goes to the legal

question of the correct legal standard.

IV.

In general, the State's incarceration of pretrial detainees

and convicted state prisoners comports with due process guarantees

because of the State's recognized interests in detaining defendants

for trial and in punishing those who have been adjudged guilty of

a crime. The State's exercise of its power to hold detainees and

prisoners, however, brings with it a responsibility under the U.S.

Constitution to tend to essentials of their well-being:

[W]hen the State by the affirmative exercise of its power
so restrains an individual's liberty that it renders him

9
 unable to care for himself, and at the same time fails to
provide for his basic human needs — e.g., food, clothing,
shelter, medical care, and reasonable safety — it
transgresses the substantive limits on state action set
by the Eighth Amendment and the Due Process Clause. The
affirmative duty to protect arises not from the State's
knowledge of the individual's predicament or from its
expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on
his own behalf.

DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189,

200 (1989) (citations omitted). Hence, since pretrial detainees

and convicted state prisoners are similarly restricted in their

ability to fend for themselves, the State owes a duty to both

groups that effectively confers upon them a set of constitutional

rights that fall under the Court's rubric of "basic human needs."

Pretrial detainees and convicted prisoners, however, look to

different constitutional provisions for their respective rights to

basic needs such as medical care and safety. The constitutional

rights of a convicted state prisoner spring from the Eighth

Amendment's prohibition on cruel and unusual punishment, see

Estelle v. Gamble, 429 U.S. 97, 104 (1976), and, with a relatively

limited reach, from substantive due process. The constitutional

rights of a pretrial detainee, on the other hand, flow from both

the procedural and substantive due process guarantees of the

Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520 (1979).

Significantly, Bell instructs that the State must distinguish

between pretrial detainees and convicted felons in one crucial

respect: The State cannot punish a pretrial detainee. Id. at 535

("In evaluating the constitutionality of conditions or restrictions

of pretrial detention that implicate only the protection against

10
deprivation of liberty without due process of law, we think that

the proper inquiry is whether those conditions amount to punishment

of the detainee."). Since the State does punish convicted

prisoners, but cannot punish pretrial detainees, a pretrial

detainee's due process rights are said to be "at least as great as

the Eighth Amendment protections available to a convicted

prisoner." City of Revere v. Massachusetts Gen. Hosp., 463 U.S.

239, 244 (1983).

Much of the current confusion over the measures of the due

process rights of pretrial detainees stems from the divergent ways

in which lower courts have applied Bell. We start by revisiting

Bell and reviewing our cases construing Bell to facilitate an

understanding of the sources of difficulty.

A.

In Bell, pretrial detainees brought a constitutional challenge

seeking injunctive relief against a number of jail conditions and

restrictions, including the jail's practice of "double bunking" its

detainees. The district court enjoined the challenged practices

after concluding that they were not justified by a "compelling

necessity." The Supreme Court expressly rejected this high level

of scrutiny.

Then Justice Rehnquist began his opinion for the Court by

emphasizing that "the Government has a substantial interest in

ensuring that persons accused of crimes are available for trials

and, ultimately, for service of their sentences, [and] that

11
confinement of such persons pending trial is a legitimate means of

furthering that interest." Bell, 441 U.S. at 534. The Court

recognized, however, that a pretrial detainee has a "right to be

free from punishment [and] an understandable desire to be as

comfortable as possible during his confinement, both of which may

conceivably coalesce at some point." Id. The Court sought to

fashion a test respecting both the Government's interests and the

detainee's rights, a test designed to "determin[e] whether

particular restrictions and conditions accompanying pretrial

detention amount to punishment in the constitutional sense of that

word." Id. at 538.

The Court lowered the level of scrutiny to one of rationality:

[I]f a particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount
to "punishment." Conversely, if a restriction or
condition is not reasonably related to a legitimate goal
— if it is arbitrary or purposeless — a court permissibly
may infer that the purpose of the governmental action is
punishment that may not constitutionally be inflicted
upon detainees qua detainees.

Id. at 539 (footnote omitted). Thus, under Bell, a pretrial

detainee cannot be subjected to conditions or restrictions that are

not reasonably related to a legitimate governmental purpose. An

open question has remained: Given that both pretrial detainees and

convicts have constitutional rights to basic human needs while

incarcerated and therefore unable to fend for themselves, what

standard applies when a pretrial detainee asserts a deprivation of

a constitutional right held in common with convicted prisoners,

albeit through a different textual source.

12
 The Supreme Court, in clarifying the scope of convicted

prisoners' Eighth Amendment rights, has consistently held that

liability for inaction attaches only when a prison official’s

failure to act amounts to deliberate indifference to the prisoner's

rights. See, e.g., Farmer, 114 S. Ct. at 1977; Wilson v. Seiter,

111 S. Ct. 2321, 2327 (1991); Estelle v. Gamble, 429 U.S. at 104.

The level of official conduct that must be shown to support a

comparable claim by a pretrial detainee, however, is a question

that the Court has repeatedly left open. See, e.g., City of Canton

v. Harris, 489 U.S. 378, 388 n.8 (1989); City of Revere, 463 U.S.

at 244.

Our efforts to answer this question have reflected conflicting

perspectives on whether to apply Bell or a deliberate indifference

standard. When dealing with a pretrial detainee's right to medical

care or protection from harm, it is argued, we must apply the

reasonable relationship test of Bell, since that test was designed

specifically to define the scope of due process rights of pretrial

detainees. With equal fervor it is urged that the deliberate

indifference standard applied in the Court's Eighth Amendment cases

ought to be the choice, since those cases have addressed the

specific type of right asserted in this case — the right to medical

care or protection from harm. As a review of our case law

discloses, this tension has emerged from varied readings of the

breadth of Bell and of cases applying it.

13
 B.

In Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc),

overruled on other grounds, International Woodworkers of Am. v.

Champion Int'l Corp., 790 F.2d 1174 (5th Cir. 1986) (en banc), we

reviewed a constitutional challenge by both pretrial detainees and

convicted prisoners seeking injunctive relief from a multitude of

practices and conditions of their incarceration in a county jail.

Judge Rubin's opinion for the en banc court carefully distinguished

the rights of pretrial detainees from those of convicted inmates,

relying on Bell in addressing the claims of the pretrial detainees.

We held that "[t]he confinement of pretrial detainees

indiscriminately with convicted persons is unconstitutional unless

such a practice is `reasonably related to the institution's

interest in maintaining jail security,' or physical facilities do

not permit their separation." Jones, 636 F.2d at 1374 (quoting

Bell, 441 U.S. at 540). Likewise, we held that contact visitation

may be denied to pretrial detainees "if it is a restraint

`reasonably related to the institution's interest in maintaining

jail security.'" Id. at 1377 (quoting Bell, 441 U.S. at 540). As

to medical attention, we noted:

The standard by which to measure the medical attention
that must be afforded pretrial detainees has never been
spelled out. The Bell v. Wolfish criterion, applied to
medical attention, entitles pretrial detainees to
reasonable medical care unless the failure to supply it
is reasonably related to a legitimate governmental
objective.

Id. at 1378. Thus, the due process algorithm for deciding whether

to grant injunctive relief in Jones was simple: We applied Bell

14
across the board, to all of the claims of the pretrial detainees,

asking whether the challenged restriction was reasonably related to

a legitimate governmental interest.

The apparent simplicity of the Bell formula belies the

mischief that has emerged in our case law in the wake of Jones and

its embrace of the reasonable-relationship inquiry. We have

consistently recognized that pretrial detainees are entitled to

protection from harm as well as needed medical care, but our case

law has traveled divergent directions in deciding whether to apply

the Bell test. Since Jones expressly declared that the right of a

pretrial detainee to receive medical care was to be measured by the

Bell test, it was easy for our cases to follow the perceived

trajectory of Jones and conduct the reasonable relationship inquiry

in all cases involving denials of reasonable medical care. In the

case of failure-to-protect claims, however, the Jones analysis was

less firm; while Jones applied Bell in asking whether pretrial

detainees had to be separated from prisoners as a general matter of

jail policy, it left open the question of how to analyze a claim

based on an isolated failure to protect a pretrial detainee from

violence at the hands of other pretrial detainees, or even at his

own hands.

Stokes v. Delcambre, 710 F.2d 1120 (5th Cir. 1983), presented

us with one of our first opportunities to consider the effect of

Bell and Jones on the failure-to-protect claim of a pretrial

detainee who was assaulted by fellow inmates. We found it

unnecessary to "dwell on the difference in rights enjoyed by pre-

15
trial detainees and convicted persons," id. at 1124, noting that

"all prison officials owe a constitutionally rooted duty to their

prisoners to provide them reasonable protection from injury at the

hands of their fellow prisoners," id. But while we explained in

Stokes that the requirement of "reasonable protection" came

directly from Jones, neither Stokes nor Jones explicitly adopted a

reasonable protection standard. Rather, Stokes simply cited Jones

for the proposition that a "failure to control or separate

prisoners who endanger the physical safety of other prisoners can

constitute cruel and unusual punishment." Stokes, 710 F.2d at

1124. We concluded that the jail was administered in such a manner

as to be "virtually indifferent" to the safety of prisoners,

emphasizing that the jury had found the defendants guilty of wanton

conduct and had awarded punitive damages. Id. Hence, our holding

in Stokes was based on a finding that the jailers' indifference to

the detainee's injuries was sufficiently egregious to establish

their liability for failing to protect the pretrial detainee from

violence by other inmates.

In Johnston v. Lucas, 786 F.2d 1254 (5th Cir. 1986), we held

that a convicted inmate could recover for a jailer's violation of

his duty to protect only if the jailer acted with "conscious or

callous indifference." Id. at 1259. Significantly, we held that

the district court had erred in reading Stokes to measure the

State's duty as one of "reasonable care." Id.. Our opinion in

Johnston relied on Davidson v. Cannon, 474 U.S. 344, 348 (1986), in

which the Supreme Court held that "the protections of the Due

16
Process Clause, whether procedural or substantive, are just not

triggered by lack of due care by prison officials."

Johnston's application of Davidson and Whitley v. Albers, 475

U.S. 312 (1986), in shaping the legal measures for failure-to-

protect claims became apparent in Alberti v. Klevenhagen, 790 F.2d

1220 (5th Cir. 1986). In Alberti, a class of convicted inmates and

pretrial detainees challenged the conditions of a jail in which

violence and sexual abuse were rampant. While noting that the due

process rights of pretrial detainees under Bell generally exceed

those of convicted inmates under the Eighth Amendment, we suggested

that their respective rights to protection from harm were similar:

Where dealing with the constitutionally rooted duty of
jailers to provide their prisoners reasonable protection
from injury at the hands of fellow inmates, "we need not
dwell on the differences in rights enjoyed by pre-trial
detainees and convicted prisoners or the maturation of
prisoners' rights in general." The same conditions of
violence and sexual abuse which constitute cruel and
unusual punishment may also render the confinement of
pretrial detainees punishment per se.

Id. at 1224 (quoting Stokes, 710 F.2d at 1124). Thus, in Alberti,

as in Jones, we held that a violation of convicted prisoners'

Eighth Amendment rights to protection from harm was enough to

establish a violation of pretrial detainees' due process rights to

protection from harm. Taken together, Alberti and Johnston hinted

that a deliberate indifference standard might be an appropriate

measure for all failure-to-protect claims, including those asserted

by convicted inmates as well as pretrial detainees.

In Partridge v. Two Unknown Police Officers, 791 F.2d 1182

(5th Cir. 1986), we dealt with the standard of care owed to a

17
pretrial detainee who poses a suicide risk. In Partridge, a boy

with mental problems hanged himself with a pair of socks while he

was being detained in a city jail. We treated the alleged

misconduct as a failure to provide needed medical care: "A serious

medical need may exist for psychological or psychiatric treatment,

just as it may exist for physical ills." Id. at 1187. We

recognized that Estelle v. Gamble had established a test of

deliberate indifference for determining whether a failure to

provide medical care violates the Eighth Amendment rights of a

convicted prisoner, but we hewed to the notion that a pretrial

detainee's medical care rights were separately protected. In the

end, however, Partridge suggested that there was a significant

overlapping of the medical care rights of pretrial detainees and

convicted prisoners: "Under the Bell v. Wolfish standard, the

defendants had a duty, at a minimum, not to be deliberately

indifferent to [the pretrial detainee's] serious medical needs."

791 F.2d at 1187. Further, whereas Johnston held that a negligent

failure to protect cannot give rise to a due process claim, we

confirmed in Partridge that the same was true for claims of

inadequate medical care: "To the extent that the complaint in

Partridge alleges negligence on the part of the arresting officer,

it fails to state a claim . . . ." Id. at 1187 (footnote omitted).

We held that only where "the claim rests on the detention center's

deliberate and systematic lack of adequate care for detainees [does

it] allege[] the kind of arbitrariness and abuse of power that is

18
preserved as a component of the due process clause in Daniels."

Id.

After Johnston, Alberti, and Partridge, it was firmly settled

in this circuit that a due process claim could never be based on a

jail official's negligent failure to provide either medical care or

protection from harm. Less pellucid, however, was the precise

methodology and standard for evaluating such claims. Stokes,

Johnston, and Alberti suggested that the standard for failure-to-

protect claims should entail some measure of whether a jailer was

"virtually," "callously," "consciously," or "deliberately"

indifferent to the rights of the pretrial detainee. Likewise,

Partridge expressly proffered a standard of deliberate indifference

to serious medical needs.

A year later, in Cupit v. Jones, 835 F.2d 82 (5th Cir. 1987),

we stepped away from the "deliberate indifference" formulation in

a pretrial detainee's medical care case. In Cupit a detainee with

a heart condition sued jail officers who allegedly denied him "the

requisite diet, exercise, medication and stress-free atmosphere

recommended by his doctors." Id. at 84. While recognizing that

Partridge had explicitly pointed toward a standard of deliberate

indifference to serious medical needs, our decision in Cupit drew

on the measures of Bell and Jones v. Diamond in revitalizing the

reasonable-relationship approach: "Today, we conclude that

pretrial detainees are entitled to reasonable medical care unless

the failure to supply that care is reasonably related to a

legitimate governmental objective." 835 F.2d at 85.

19
 Following Alberti and Cupit, our cases dealing with pretrial

detainees fell loosely onto two tracks. On the failure-to-protect

track, we relied on Alberti and Johnston in measuring pretrial

detainees' failure-to-protect claims under a standard of deliberate

indifference. See, e.g., Williams v. County of El Paso, 966 F.2d

676 (table), No. 91-8505 (5th Cir. June 3, 1992) (per curiam)

(unpublished); Sodie v. Canulette, 973 F.2d 923 (table), No. 91-

3620 (5th Cir. Aug 13, 1992) (per curiam) (unpublished). On the

medical care track, both Williams and Sodie relied on Cupit and

asked whether failure to supply medical care to a pretrial detainee

was reasonably related to a legitimate governmental objective.

See, e.g., Williams; Sodie. In addition, because we have allowed

claims arising from suicides to be framed as a violation of the

State's duty to provide reasonable medical care, our post-Cupit

cases involving suicides by pretrial detainees have adhered to the

reasonable-relationship test of Cupit, Jones, and Bell. See, e.g.,

Rhyne v. Henderson County, 973 F.2d 386, 391-92 (5th Cir. 1992);

Burns v. City of Galveston, 905 F.2d 100, 103 (5th Cir. 1990).

Two cases, however, crossed the otherwise separate tracks. In

Parker v. Carpenter, 978 F.2d 190 (5th Cir. 1992), we applied the

Bell test to a pretrial detainee's medical care claims and to his

failure-to-protect claims. Id. at 192-93 (reversing dismissal of

pro se suit by pretrial detainee who was attacked after being moved

from low-risk minimum security section to overcrowded violent

inmate section allegedly because of verbal altercation with jail

officer). By contrast, in Banana v. McNeel, 5 F.3d 1495 (table),

20
No. 92-7184 (5th Cir. Sept. 22, 1993) (per curiam) (unpublished),

we held that the deliberate indifference standard applied in both

failure-to-protect and medical care cases. Hence, Parker and

Banana cast doubt upon the notion of a clean dichotomy between

claims alleging a failure to protect and those alleging a failure

to provide reasonable medical care.

V.

As our cases suggest, we have traveled a peripatetic route in

invoking different measures of the constitutional rights of

pretrial detainees to medical care and protection from harm. Close

analysis, however, discloses much consistency in our treatment of

the underlying constitutional claims. Our goal in deciding this

case today is to clarify our case law and to articulate the proper

legal measures of a State's duty to tend to a pretrial detainee

posing a risk of suicide. To that end, our analysis proceeds in

four steps.

First, we reject the suggestion that the choice between the

Bell test and a deliberate indifference standard turns on whether

a pretrial detainee's claim is framed as a denial of medical care

or a failure to protect; we conclude that both medical care and

failure-to-protect cases should be treated the same for purposes of

measuring constitutional liability. Second, we explain that the

Bell test retains vitality only when a pretrial detainee attacks

general conditions, practices, rules, or restrictions of pretrial

confinement. When, by contrast, a pretrial detainee's claim is

21
based on a jail official's episodic acts or omissions, the Bell

test is inapplicable, and hence the proper inquiry is whether the

official had a culpable state of mind in acting or failing to act.

Third, we adopt a standard of deliberate indifference as the

measure of culpability for such episodic acts or omissions. We

emphasize that our use of a deliberate indifference standard does

not scale back the constitutional rights of pretrial detainees.

This is so because a proper application of Bell's reasonable-

relationship test is functionally equivalent to a deliberate

indifference inquiry. Finally, we turn to the question whether to

apply an objective or subjective definition of deliberate

indifference. Finding no constitutionally significant distinction

between the rights of pretrial detainees and convicted inmates to

basic human needs, including medical care and protection from

violence or suicide, we conclude that a state jail official's

constitutional liability to pretrial detainees for episodic acts or

omissions should be measured by a standard of subjective deliberate

indifference as enunciated by the Supreme Court in Farmer.

A.

As discussed above, our pretrial detainee cases have tended to

evaluate medical care claims under Bell's reasonable-relationship

test and failure-to-protect claims under a deliberate indifference

standard. This dichotomy, however, does not offer a principled

basis for invoking a different legal standard. Indeed, the Supreme

Court applies the same standard in analyzing both types of claims

22
when asserted under the Eighth Amendment by convicted prisoners.

Compare Farmer, 114 S. Ct. at 1977 (reviewing convicted prisoner's

failure-to-protect claim under deliberate indifference standard)

with Estelle v. Gamble, 429 U.S. at 104 (reviewing convicted

prisoner's inadequate medical care claim under deliberate

indifference test). As the Court has observed, the two classes of

claims are similar from the perspectives of both prisoners and

prison officials:

[T]he medical care a prisoner receives is just as much a
"condition" of his confinement as the food he is fed, the
clothes he is issued, the temperature he is subjected to
in his cell, and the protection he is afforded against
other inmates. There is no indication that, as a general
matter, the actions of prison officials with respect to
these nonmedical conditions are taken under materially
different constraints than their actions with respect to
medical conditions.

Wilson, 111 S. Ct. at 2326-27.

Articulating the State's responsibility for preventing suicide

by detainees exposes the absence of a constitutionally significant

distinction between failure-to-protect and medical care claims. As

we have explained, we have been willing to entertain suicide-based

claims as implicating the State's responsibility to provide medical

care. See Rhyne, 973 F.2d at 391-92; Burns, 905 F.2d at 103;

Partridge, 791 F.2d at 1187. Quite often, however, the State's

obligation to prevent suicide may implicate a kaleidoscope of

related duties, including a duty to provide not only medical care,

but also protection from self-inflicted harm. Thus, a state jail

official might be liable for a suicide resulting from the

official's failure to remove a pair of scissors from the cell of a

23
pretrial detainee known to be suicidal, even if the state official

had otherwise provided the mentally disturbed detainee with

constitutionally sufficient medical care.

Whether the State's obligation is cast in terms of a duty to

provide medical care or protection from harm, its ultimate

constitutional duty is to "to assume some responsibility for [the]

safety and general well-being" of persons whose state-occasioned

confinement renders them unable to fend for themselves. DeShaney,

489 U.S. at 200. The underlying purpose of requiring a state jail

official to provide medical care to a pretrial detainee is to

prevent the detainee from suffering further physical pain or harm.

Imposing a constitutional duty upon jail officials to prevent

physical abuse of a detainee, or to halt a beating that has already

begun, serves the same underlying purpose. As DeShaney makes

clear, the State's responsibility in both types of cases springs

from the fact of incarceration and the resulting obligation to

provide for the detainee's basic human needs. 489 U.S. at 200

(explaining that State's affirmative restraint of individual's

liberty gives rise to duty to provide for his "basic human needs,"

including "medical care" and "reasonable safety"). Given such

similarities, the same legal measure should govern the due process

rights of a pretrial detainee to medical care and to protection

from harm or violence.

In short, the choice between the Bell test and a deliberate

indifference standard must turn on something other than whether a

pretrial detainee's claim is framed as denial of medical care or a

24
failure to protect. As we now explain, this choice between the two

standards is to be made by distinguishing between constitutional

challenges to conditions, practices, rules, or restrictions on the

one hand, and episodic acts or omissions on the other.

B.

Constitutional attacks on general conditions, practices,

rules, or restrictions of pretrial confinement are referred to as

"jail condition cases." The Bell test works comfortably in such

cases because the jail officials' state of mind is not a disputed

issue. In true jail condition cases, an avowed or presumed intent

by the State or its jail officials exists in the form of the

challenged condition, practice, rule, or restriction. A State's

imposition of a rule or restriction during pretrial confinement

manifests an avowed intent to subject a pretrial detainee to that

rule or restriction. Likewise, even where a State may not want to

subject a detainee to inhumane conditions of confinement or abusive

jail practices, its intent to do so is nevertheless presumed when

it incarcerates the detainee in the face of such known conditions

and practices. Thus, a true jail condition case starts with the

assumption that the State intended to cause the pretrial detainee's

alleged constitutional deprivation. Only with such intentionality

as a given is the Bell test useful. See, e.g., Ortega v. Rowe, 796

F.2d 765, 768 (5th Cir. 1986) ("Only if the evidence suggests that

the appellees knew of the jails' conditions, or intended to force

25
the detainees to endure such conditions, would a Bell analysis

retain vitality.").

When, by contrast, a pretrial detainee's claim of failure to

provide medical care or protection from violence does not challenge

a condition, practice, rule, or restriction, but rather attacks the

episodic acts or omissions of a state jail official, the question

is whether that official breached his constitutional duty to tend

to the basic human needs of persons in his charge. With episodic

acts or omissions, intentionality is no longer a given, and Bell

offers an ill-fitting test.2 Asking about the rationality of the

relationship between an official's episodic acts or omissions and

a legitimate governmental objective begs the underlying question

whether that official had the requisite mental state to establish

his liability as a perpetrator of the particular act or omission,

not as a dispenser of intended conditions or restrictions.

When a pretrial detainee's constitutional claim is based on

particular acts or omissions by one or more jail officials, the

difficult question is whether the challenged act or omission can be

characterized as episodic. For the Bell test to apply, a jailer's

act or omission must implement a rule or restriction or otherwise

demonstrate the existence of an identifiable intended condition or

2
Wilson v. Seiter refused to distinguish "between `short-term'
or `one-time' conditions (in which a state of mind requirement
would apply) and `continuing' or `systemic' conditions (where
official state of mind would be irrelevant)." 111 S. Ct. at 2325;
see also id. at 2325 n.1. Our explanation today does not step upon
this principle. We are consistent with Wilson's holding that state
of mind is significant in both situations, albeit differently
demonstrated in each.

26
practice. If a pretrial detainee is unable to point to such an

established rule or restriction, then he must show that the jail

official's acts or omissions were sufficiently extended or

pervasive, or otherwise typical of extended or pervasive misconduct

by other officials, to prove an intended condition or practice to

which the Bell test can be meaningfully applied. Otherwise, in the

absence of such a condition, practice, rule, or restriction, a jail

official's act or omission can give rise to constitutional

liability only if he was culpable, under an appropriate legal

standard, with respect to the harm to the detainee. We now

articulate that standard.

C.

Our inquiry begins with the fundamental rule that negligent

inaction by a jail officer does not violate the due process rights

of a person lawfully held in custody of the State. See Davidson,

474 U.S. at 348 ("[T]he protections of the Due Process Clause,

whether procedural or substantive, are just not triggered by lack

of due care by prison officials."); Johnston, 786 F.2d at 1259

(rejecting liability for negligent failure-to-protect); Partridge,

791 F.2d at 1187 (rejecting liability for negligent failure to

provide medical care); see also Daniels v. Williams, 474 U.S. 327,

332 (1986). Relying on Daniels and Davidson, the Seventh Circuit

has held that gross negligence will not suffice either:

[T]he distinction between negligence and gross negligence
does not respond to the due process clause's function,
which is to control abuses of government power. A
"gross" error is still only an error, and an error is not

27
 an abuse of power. Since an error by a government
official is not unconstitutional, "it follows that `gross
negligence' is not a sufficient basis for liability."

Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991)

(quoting Archie v. City of Racine, 847 F.2d 1211, 1220 (7th Cir.

1988) (en banc)). These cases demonstrate that the constitutional

standard of conduct must step up from negligence — that it must be

more than mere or even gross negligence.

Formulating a gossamer standard higher than gross negligence

but lower than deliberate indifference is unwise because it would

demand distinctions so fine as to be meaningless. It would also

risk endorsing an objective standard that is contrary to the

Supreme Court's holding that the Due Process Clause was meant to

prevent "abusive government conduct." Davidson, 474 U.S. at 348;

see also Salazar, 940 F.2d at 238 (adopting criminally reckless

standard in part because "an error is not an abuse of power").

All of our cases have applied either the Bell test or a

standard akin to deliberate indifference. Since we are foreclosing

the application of the Bell test to claims against an individual

jailer for episodic acts or omissions, we need pause only if there

is a reason not to adopt a standard of deliberate indifference.

We find no such reason. Application of a deliberate

indifference standard to claims by pretrial detainees is consistent

with our cases and the dictates of Bell, because the deliberate

indifference standard does not impose a higher burden on pretrial

detainees than the Bell test. Properly understood, the Bell test

is functionally equivalent to a deliberate indifference inquiry.

28
 The "reasonably related to a valid penological standard" never

purported to allow recovery for mere negligence. To the contrary,

this test is deferential to jail rulemaking; it is in essence a

rational basis test of the validity of jail rules. That is, asking

whether a rule is reasonably related to a legitimate governmental

objective is much like asking whether a legislative enactment has

any rational basis, except in the context of jail administration

the legislative purpose is a given — typically a penological or

administrative purpose. Violation of the Bell test requires acts

or omissions not too distant from a standard of arbitrary and

capricious conduct.

We are mindful that we have sometimes perceived the standard

of reasonably related to a legitimate governmental objective to be

less than or equal to deliberate indifference. See, e.g., Evans v.

City of Marlin, 986 F.2d 104, 107 (5th Cir. 1993); Burns, 905 F.2d

at 103; Lewis v. Parish of Terrebone, 894 F.2d 142, 145 (5th Cir.

1990). Far from demonstrating that the Bell test is designed to be

more favorable to pretrial detainees, however, these decisions

confirm that the Cupit-Jones-Bell test — reasonable medical care

unless the failure to supply that care is reasonably related to a

legitimate governmental objective — is easily confused with a

negligence standard. See, e.g., Walton v. Alexander, 44 F.3d 1297,

1300 n.3 (5th Cir. 1995) (en banc) (clipping final fifteen words

from Cupit standard to suggest that test demands only "reasonable

medical care"). We may have added to the uncertainty by dismissing

claims for failure to show negligence without always making it

29
clear that negligence is a necessary but not sufficient finding

under Cupit. See, e.g., Cupit, 835 F.2d at 85 (denying recovery

where plaintiff was unable to show denial of reasonable medical

care). There should be no misunderstanding: Negligent conduct by

a prison official cannot be the basis for a due process claim.

The only Supreme Court case that arguably counsels against a

deliberate indifference standard is Youngberg v. Romeo, 457 U.S.

307 (1982). In Youngberg, the plaintiff was the mother of a mental

patient who suffered injuries while involuntarily committed to a

state mental institution. The district court instructed the jury

that it could find the defendants liable only if the defendants

showed deliberate indifference to Romeo's serious medical needs.

Id. at 312. The Supreme Court held that the district court erred

in using the Eighth Amendment's deliberate indifference standard.

Id. at 312 n.11. The Court found the appropriate standard in the

Due Process Clause of the Fourteenth Amendment, concluding that

"liability may be imposed only when the decision by the [mental

health] professional is such a substantial departure from accepted

professional judgment, practice, or standards as to demonstrate

that the person actually did not base the decision on such a

judgment." Id. at 323.

The Court in Youngberg thus announced a distinct standard to

be applied in measuring the State's constitutional duties to mental

incompetents, one that differed from both the Bell test and the

deliberate indifference standard. The Youngberg measure flowed

from the premise that "[p]ersons who have been involuntarily

30
committed are entitled to more considerate treatment and conditions

of confinement than criminals whose conditions of confinement are

designed to punish." Id. at 321-22. The Court's later decision in

DeShaney, however, called into question the constitutional

significance of this premise. DeShaney clarified that "[t]he

affirmative duty to protect arises not from the State's knowledge

of the individual's predicament or from its expressions of intent

to help him, but from the limitation which it has imposed on his

freedom to act on his own behalf." 489 U.S. at 200. In other

words, DeShaney suggests that a State's declared intent to confine

incompetents for their own benefit, as opposed to its announced

purpose to punish convicted criminals, should have no bearing on

the nature of the constitutional duty owed to either group. What

matters under DeShaney is that "the State by the affirmative

exercise of its power so restrains an individual's liberty that it

renders him unable to care for himself." Id. Since the State

restrains the individual liberty of both mental incompetents and

convicted inmates in a like manner, the State should incur the same

duties to provide for the basic human needs of both groups.

The Court in DeShaney did not address whether involuntarily

confined mental incompetents and convicted inmates shared the same

constitutional rights to medical care and safety. Since DeShaney

suggested that both groups enjoyed the same rights, however, either

the Youngberg standard or the deliberate indifference standard must

give way to achieve the requisite equivalence in constitutional

rights. The Court thus has cast doubt on the vitality of Youngberg

31
by confirming that a deliberate indifference standard is the

appropriate measure of constitutional liability for a prison

official's failure to provide a convicted inmate with basic human

needs. See, e.g., Wilson, 111 S. Ct. at 2326-27 (applying

deliberate indifference standard to convicted prisoners' challenge

to conditions of confinement); Farmer, 114 S. Ct. at 1977

(clarifying that subjective deliberate indifference standard

governs convicted prisoners' failure-to-protect claims).

We decline to resolve this tension at this time. Youngberg,

Wilson, and Farmer did not deal with pretrial detainees, so their

respective standards are not dispositive of this suit by Mr. Hare.

It is not for us to announce that the Supreme Court has overruled

Youngberg. Youngberg does not foreclose our adoption of a

deliberate indifference standard as the measure of a jail

official's liability for episodic acts or omissions that result in

a denial of pretrial detainees' basic human needs. As we have

explained, no constitutionally relevant difference exists between

the rights of pretrial detainees and convicted prisoners to be

secure in their basic human needs. Since the Supreme Court has

consistently adhered to a deliberate indifference standard in

measuring convicted prisoners' Eighth Amendment rights to medical

care and protection from harm, we adopt a deliberate indifference

standard in measuring the corresponding set of due process rights

of pretrial detainees.

In sum, we conclude that a deliberate indifference standard is

compelled by our cases and consistent with the relevant teachings

32
of the Supreme Court.3 We hold that the episodic act or omission

of a state jail official does not violate a pretrial detainee's

constitutional right to be secure in his basic human needs, such as

medical care and safety, unless the detainee demonstrates that the

official acted or failed to act with deliberate indifference to the

detainee's needs.

D.

We turn now to the formulation of the deliberate indifference

standard. On June 6, 1994, four days before the panel entered its

first opinion in this case, the Supreme Court decided Farmer v.

Brennan, 114 S. Ct. 1970 (1994). Farmer was significant in

articulating a subjective definition of deliberate indifference in

the context of a convicted inmate's Eighth Amendment challenge to

the conditions of his imprisonment. The Court began by noting that

prison officials have a duty under the Eighth Amendment to “ensure

that inmates receive adequate food, clothing, shelter and medical

3
Most circuits have endorsed a deliberate indifference inquiry
as the measure of state officials' constitutional duty to safeguard
the basic human needs of pretrial detainees, including protection
from suicide. See, e.g., Elliot v. Cheshire County, 940 F.2d 7, 10
& n.2 (1st Cir. 1991) (suicide as medical care claim); Kost v.
Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (medical care); Hill v.
Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (suicide as medical
care claim); Heflin v. Stewart County, 958 F.2d 709, 715-16 (6th
Cir. 1992); Hall v. Ryan, 957 F.2d 402, 405 (7th Cir. 1992)
(suicide as medical care claim); Bell v. Stigers, 937 F.2d 1340,
1343 (8th Cir. 1991) (failure to prevent suicide); Redman v. County
of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc), cert.
denied, 502 U.S. 1074 (1992) (failure to protect from prison rape);
Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir. 1994) (medical
care); Tittle v. Jefferson County Commission, 10 F.3d 1535, 1539-40
(11th Cir. 1994) (en banc) (failure to prevent suicide).

33
care, and [to] `take reasonable measures to guarantee the safety of

the inmates.'" Id. at 1976 (quoting Hudson v. Palmer, 468 U.S.

517, 526-27 (1984)). "Having incarcerated `persons [with]

demonstrated proclivit[ies] for antisocial criminal, and often

violent, conduct,' having stripped them of virtually every means of

self-protection and foreclosed their access to outside aid, the

government and its officials are not free to let the state of

nature take its course." Id. at 1977 (quoting Hudson v. Palmer,

468 U.S. at 526, and citing DeShaney, 489 U.S. at 199-200).

The Court emphasized, however, that an inmate must satisfy two

requirements to prevail on a claim that a prison official violated

his Eighth Amendment right to humane prison conditions. First,

"the inmate must show that he is incarcerated under conditions

posing a substantial risk of serious harm." Id. at 1977. Second,

the inmate must show that the prison official had a culpable state

of mind — that the official was deliberately indifferent to inmate

health or safety. Id. While these two elements were features of

Eighth Amendment jurisprudence, the critical question in Farmer was

whether to apply a subjective or objective definition of deliberate

indifference.

The Court explained that it was "fair to say that acting or

failing to act with deliberate indifference to a substantial risk

of serious harm to a prisoner is the equivalent of recklessly

disregarding that risk." Id. at 1978. In equating deliberate

indifference with recklessness, however, the Court noted that the

"term recklessness is not self-defining." Id. While recklessness

34
exists in the civil law if a person fails to act in the face of an

unjustifiably high risk that is known or should be known, the

criminal law permits a finding of recklessness only when a person

disregards a risk of harm of which he is aware. In other words,

the civil law espouses an objective definition of recklessness

while the criminal law proffers a subjective one. Id. at 1979.

Faced with a choice between these two approaches, the Court

was persuaded that the subjective definition "comports best with

the text of the [Eighth] Amendment as [its] cases [had] interpreted

it." Id. It emphasized that "[t]he Eighth Amendment does not

outlaw cruel and unusual `conditions'; it outlaws cruel and unusual

`punishments.'" Id. The Court explained that "an official's

failure to alleviate a significant risk that he should have

perceived but did not, while no cause for commendation, cannot

under our cases be condemned as the infliction of punishment." Id.

Accordingly, the Court held "that a prison official may be held

liable under the Eighth Amendment for denying humane conditions of

confinement only if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take

reasonable measures to abate it." Id. at 1984.

Though Farmer dealt specifically with a prison official's duty

under the Eighth Amendment to provide a convicted inmate with

humane conditions of confinement, we conclude that its subjective

definition of deliberate indifference provides the appropriate

standard for measuring the duty owed to pretrial detainees under

the Due Process Clause. See, e.g., Sanderfer v. Nichols, 62 F.3d

35
151, 154-55 (6th Cir. 1995) (applying Farmer's subjective standard

of deliberate indifference to pretrial detainee's medical care

claim); Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995) (citing

Farmer in applying deliberate indifference test to medical care

claim).4 First, despite the distinct constitutional sources of the

rights of pretrial detainees and convicted inmates, state jail and

prison officials owe the same duty to provide the same quantum of

basic human needs and humane conditions of confinement to both

groups. We are mindful that a pretrial detainee's rights are "at

least as great as the Eighth Amendment protections available to a

convicted prisoner." City of Revere, 463 U.S. at 244; cf. Cupit,

835 F.2d at 84 ("[T]he due process clause of the fourteenth

amendment accords pretrial detainees rights not enjoyed by

convicted inmates under the eighth amendment prohibition against

cruel and unusual punishment.)." That pretrial detainees may have

more protections or rights in general, however, does not mean that

they are entitled to greater protection of rights shared in common

4
We separate the two issues: the existence of a
constitutional violation simpliciter and a municipality’s liability
for that violation. Different versions of the deliberate
indifference test govern the two inquiries. Our opinion in this
case makes clear that to prove an underlying constitutional
violation in an individual or episodic acts case, a pre-trial
detainee must establish that an official acted with subjective
deliberate indifference. Once the detainee has met this burden,
she has proved a violation of her rights under the Due Process
Clause. To succeed in holding a municipality accountable for that
due process violation, however, the detainee must show that the
municipal employee’s act resulted from a municipal policy or custom
adopted or maintained with objective deliberate indifference to the
detainee’s constitutional rights. See Farmer, 114 S.Ct. at 1981
(“It would be hard to describe the Canton understanding of
deliberate indifference, permitting liability to be premised on
obviousness or constructive notice, as anything but objective.”).

36
with convicted inmates. See Cupit, 835 F.2d at 85 (noting that

"the distinction as to medical care due a pretrial detainee, as

opposed to a convicted inmate, may indeed be a distinction without

a difference"). For purposes of measuring constitutional duties,

our case law and the teachings of the Supreme Court indicate that

there is no legally significant situation in which a failure to

provide an incarcerated individual with medical care or protection

from violence is punishment yet is not cruel and unusual. The fact

of conviction ought not make one more amenable under the

Constitution to unnecessary random violence or suffering, or to a

greater denial of basic human needs.

Second, we find that the Farmer formulation of the deliberate

indifference standard properly captures the essence of the inquiry

as to whether a pretrial detainee has been deprived of his due

process rights to medical care and protection from violence. The

Farmer standard of subjective "deliberate indifference serves under

the Eighth Amendment to ensure that only inflictions of punishment

carry liability." 114 S. Ct. at 1981; see also id. at 1979 ("[A]n

official's failure to alleviate a significant risk that he should

have perceived but did not . . . cannot under our cases be

condemned as the infliction of punishment."). Thus, the Farmer

test purports to distinguish between errant inaction and infliction

of punishment: Punishment is inflicted only when a prison official

was aware of a substantial risk of serious harm to a convicted

inmate but was deliberately indifferent to that risk.

37
 The response demanded of jail officials with actual knowledge

of such risk of serious injury is that he not act with deliberate

indifference. We share the concern of the Seventh Circuit that the

Farmer standard not be transmuted into a negligence inquiry.

"Deliberate indifference, i.e., the subjective intent to cause

harm, cannot be inferred from a prison guard's failure to act

reasonably. If it could, the standard applied would be more akin

to negligence than deliberate indifference." Id.5

We reject the suggestion that the proper measure of the duty

to respond of persons with the requisite knowledge ought to revisit

negligence. Under that view negligence tossed out the front door

re-enters through the back. The duty to respond and the measure of

the adequacy of the response are dependant each upon the other for

their level of stringency. The view that the duty to respond

announced in Farmer is a negligence standard misses the fact that

the Farmer test is a marriage of elements, not a listing of two

elements independent of each other in application. We reject that

view.

Keeping in mind that the Due Process Clause forbids the

"punishment" of pretrial detainees, Farmer's significance for

claims of inadequate medical care or protection from harm is

5
We construe Farmer's "respond reasonably" and "reasonable
measures" language, id. at 1982-83, 1984, to relate necessarily to
whether the first, or objective, component of an Eighth Amendment
violation has been made out. That leaves the second, subjective
prong (state of mind more blameworthy than lack of due care); where
there is recognition of substantial danger and a response thereto,
this second prong can be satisfied only in respect to the response
itself.

38
apparent. The Due Process Clause proscribes any punishment of

pretrial detainees, cruel and unusual or otherwise. The Farmer

standard of deliberate indifference purports to ask only whether an

official "punished" an inmate, not whether the punishment was cruel

and unusual. In essence, what Farmer says is that a state official

who has subjective knowledge of the risk of serious injury to a

convicted prisoner or a pretrial detainee and whose response is

deliberately indifferent inflicts either cruel and unusual

punishment or no punishment at all.

We are urged to downshift the Farmer standard from the

requirement that the official be subjectively aware of this risk of

serious injury to an objective measure of "should have been aware."

As we have explained, however, this objective standard offered for

liability under the due process clause is redolent with negligence

and its measures. That will not do. There is no middle ground, no

realm in which a prison or jail officer's disregard of a risk of a

serious harm is punishment but not cruel and unusual.

VI.

In sum, we hold (1) that the State owes the same duty under

the Due Process Clause and the Eighth Amendment to provide both

pretrial detainees and convicted inmates with basic human needs,

including medical care and protection from harm, during their

confinement; and (2) that a state jail official’s liability for

episodic acts or omissions cannot attach unless the official had

subjective knowledge of a substantial risk of serious harm to a

39
pretrial detainee but responded with deliberate indifference to

that risk.

Richard Hare alleges that the defendants violated the Due

Process Clause of the Fourteenth Amendment by causing Tina Hare to

be deprived of her right to reasonable care. The district court

found that there was a genuine issue of material fact as to whether

the defendants knew or should have known of Ms. Hare's suicide

risk. As we have explained, however, the correct legal standard is

not whether the jail officers "knew or should have known," but

whether they had gained actual knowledge of the substantial risk of

suicide and responded with deliberate indifference. This appeal

comes from a denial of summary judgment rejecting qualified

immunity. We remand for application of the standard announced

today. See Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).

We express no opinion regarding the outcome of such further

proceedings in the trial court.

VACATED and REMANDED.

JAMES L. DENNIS, Circuit Judge, Specially Concurring:

40
 The majority holds that a plaintiff, who brings a 42 U.S.C. § 1983 action arising out of the

suicide of a pretrial detainee resulting from the violation of her rights to physical protection and

medical services under the Due Process Clause of the Fourteenth Amendment, must show that the

responsible officials had subjective knowledge of a substantial risk of serious harm to the pretrial

detainee but responded to that risk with "deliberate indifference," as defined by the Eight Amendment

case of Farmer v. Brennan, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). I concur only in the judgment

vacating the district court decision and remanding the case for further proceedings because (1)

application of the "deliberate indifference" test (for determining cruel and unusual punishment of

convicts) to pret rial detainees' claims is inconsistent with prior Supreme Court decisions that

detainees are guiltless individuals protected by a broader Due Process Clause right to be free from

any punishment whatsoever; and (2) even if pretrial detainees are to be shielded only from cruel and

unusual punishment as measured by the "deliberate indifference" standard, the majority opinion's

failure to consistently articulate fully the Farmer v. Brennan definition of that standard runs the risk

of affording pretrial detainees less protection from inhumane treatment than convicted criminals.

1.

In evaluating the constitutionality of conditions or restrictions of pretrial detention that

implicate only the protection against deprivation of liberty without due process of law, the proper

inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process

Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due

process of law. Bell v. Wolfish, 441 U.S. 520, 535 (1979). A person lawfully committed to pretrial

detention has not been adjudged guilty of any crime. He has had only a judicial determination of

probable cause as a prerequisite to the extended restraint of his liberty following arrest. Id at 536.

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Under such circumstances, the Government concededly may detain him to ensure his presence at trial

and may subject him to the restrictions and conditions of the detention facility so long as those

conditions and restrictions do not amount to punishment, or otherwise violate the Constitution. Id

at 536-537.

Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the

other hand, may be punished, although that punishment may not be "cruel and unusual" under the

Eighth Amendment. Id. at 535, n. 16. The Court recognized this distinction in Ingraham v. Wright,

430 U.S. 651, 671-672 (1977): “Eighth Amendment scrutiny is appropriate only after the State has

complied with the constitutional guarantees traditionally associated with criminal prosecutions. See

United States v. Lovett, 328 U.S. 303, 317-318 (1946). ...[T]he State does not acquire the power

to punish with which the Eighth Amendment is concerned until after it has secured a formal

adjudication of guilt in accordance with due process of law. Where the State seeks to impose

punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process

Clause of the Fourteenth Amendment.” Id at 671 n. 40. In other words, "the Fifth Amendment

includes freedom from punishment within the liberty of which no person may be deprived without due

process of law." Bell v. Wolfish, 441 U.S. at 535, n.17 (1979).

In determining whether particular restrictions and conditions accompanying pretrial detention

amount to punishment in the constitutional sense of that word, a court must decide whether the

disability is imposed for the purpose of punishment or whether it is but an incident of some other

legitimate governmental purpose. Id. at 538. Absent a showing of an expressed intent to punish on

the part of detention facility officials, that determination generally will turn on "whether an alternative

purpose to which [the restriction] may rationally be connected is assignable for it, and whether it

appears excessive in relation to the alternative purpose assigned [to it]." Id., quoting Kennedy v.

Mendoza-Martinez, 372 U.S. at 168-169. Thus, if a particular condition or restriction of pretrial

detention is reasonably related to a legitimate governmental objective, it does not, without more,

amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a

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legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of the

governmental action is punishment that may not constitutionally be inflicted upon detainees qua

detainees. Bell v. Wolfish, 441 U.S. at 539.

I respectfully disagree with the majority's conclusion that "the Bell test retains vitality only

when a pretrial detainee attacks general conditions, practices, rules, or restrictions of pretrial

confinement" and is completely inapplicable when "a pretrial detainee's claim is based on a jail

official's episodic acts or omissions..." Hare v. City of Corinth, No. 93-7192, slip op. at 21-22. The

Bell Court did not place any such limitation on its holding that, under the Due Process Clause, a

pretrial detainee may not be punished prior to an adjudication of guilt in accordance with due process

of law.

Instead, the Court specified that the factors identified in Kennedy v. Mendoza-Martinez, 372

U.S. 144 (1963) provide useful guideposts in determining whether particular restrictions and

conditions accompanying pretrial detention amount to punishment in the constitutional sense of the

word. While it is all but impossible to compress the distinction into a sentence or a paragraph, the

Mendoza-Martinez Court described the tests traditionally applied to determine whether a

governmental act is punitive in nature:

Whether the sanction involves an affirmative disability or restrai nt, whether it has
historically been regarded as a punishment, whether it comes into play only on a
finding of scienter, whether its operation will promote the traditional aims of
punishment--retribution and deterrence, whether the behavior to which it applies is
already a crime, whether an alternative purpose to which it may rationally be
connected is assignable for it, and whether it appears excessive in relation to the
alternat ive purpose assigned are all relevant to the inquiry, and may often point in
differing directions. Id at 168-169 (footnotes omitted).

Accordingly, in Bell v. Wolfish, the Court concluded that if a particular condition or

restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does

not, without more--such as a showing of an expressed intent to punish--amount to "punishment."

Conversely, the Court stated, if a restriction or condition is not reasonably related to a legitimate

goal--if it is arbitrary or purposeless--a court may permissibly infer that the purpose of the

governmental action is punishment that may not be inflicted upon detainees. Id at 539. Moreover,
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as an illustration of an arbitrary or excessive restriction or condition, the Court gave the following

example of an official's act or omission against an individual detainee:

“[L]oading a detainee with chains and shackles and throwing him in a dungeon may
ensure his presence at trial and preserve the security of the institution. But it would
be difficult to conceive of a situation where conditions so harsh, employed to achieve
objectives that could be accomplished in so may (sic) alternative and less harsh
methods, would not support a conclusion that the purpose for which they were
imposed was to punish.” Id at n. 20. (Emphasis added).

The Supreme Court has not rendered any decision since Bell v. Wolfish that detracts from its

vitality when applied to a pretrial detainee's deprivation of the due process right to liberty from

punishment caused by the episodic act or omission of an individual jail official. In fact, in Wilson v.

Seiter, 501 U.S. 294 (1991) the Court expressly refused to recognize a distinction between cases

involving "conditions of confinement" and others arising from "specific acts or omissions directed at

individual prisoners" in its Eighth Amendment cruel and unusual punishment analysis. Id at n. 1. The

Court reasoned:

It seems to us...that if an individual prisoner is deprived of needed medical treatment,
that is a condition of his confinement, whether or not the deprivation is inflicted upon
everyone else. Undoubtedly deprivations inflicted upon all prisoners are, as a policy
matter, of greater concern than deprivations inflicted upon particular prisoners, but
we see no basis whatever for saying that the one is a "condition of confinement" and
the other is not--much less that the one constitutes "punishment" and the other does
not. ...Id at n. 1.

The majority's attempt to resurrect the same invalid distinction in order to isolate pretrial

detainees' claims based upon "specific acts or omissions directed at individual prisoners" and place

them under the aegis of the Eighth Amendment "deliberate indifference" standard rather than under

the broader protection of the Due Process Clause is clearly inconsistent with the Supreme Court's

cases. The Supreme Court's decisions repeatedly indicate that convicted inmates have less

protections and rights than pretrial detainees and other unconvicted persons in the state's custody.

Certainly, the ambit of the state's duty to protect pretrial detainees from any punishment is greater

than that of its duty to protect convicted inmates only from cruel or unusual punishment. Bell v.

Wolfish, supra. "Persons who have been involuntarily committed are entitled to more considerate

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treatment and conditions of confinement than criminals whose conditions of confinement are designed

to punish." Youngberg v. Romeo, 457 U.S. 307, 321-322 (1982). See also, Riggins v. Nevada, 504

U.S. 127 (1992); City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983); Graham

v. Connor, 490 U.S. 386 (1989). Contrary to the majority’s suggestion, the Supreme Court's

decision in DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989) does not undermine any of

these authorities. In DeShaney the Court merely distinguished Youngberg v. Romeo, supra, holding

that the state had no duty, under the Due Process Clause, to protect a child against abuse by his

father, even though the state knew that the child faced danger of such abuse, where (1) the child was

not in the state's custody, and (2) the state played no part in creation of the danger, nor did the state

do anything to render the child any more vulnerable to such danger.

Therefore, the majority departs radically from the Supreme Court’s pretrial detainee

precedents by refusing to apply the Mendoza-Martinez factors, even as abbreviated and refined by

Bell v. Wolfish. Even if the majority deems these factors to be too cumbersome for felicitous

applicat ion in detainee failure to protect or to medically treat cases, there is no reason to relegate

innocent detainees and other wards of the state to protection only against cruel or unusual punishment

as measured by the criminal recklessness or "deliberate indifference" standard defined by Farmer v

Brennan for cruel and unusual punishment cases. If a short hand version of the Mendoza-Martinez

and Bell tests must be devised for failure to protect or medically treat cases, I do not understand why

the civil recklessness standard, see Farmer v. Brennan, 114 S.Ct. 1970, 1978-79, and authorities

cited, or even a gross negligence standard would not be appropriate, so long as all relevant legitimate

governmental objectives are also taken into consideration. Either test would accord to unconvicted

detainees the greater respect for their rights due them as innocent persons while insulating jail officials

from liability for their ordinary negligent or inadvertent acts or omissions. Application of the criminal

recklessness or deliberate indifference test to pretrial detainees’ claims will permit the state to punish

detainees in violation of Supreme Court decisions, so long as the punishment is not cruel or unusual.

2.

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 According to the majority's holding, the claims of individual pretrial detainees based on a jail

official's failure to protect them from harm or to provide them with medical services shall be governed

by the same Eighth Amendment cruel or unusual punishment-deliberate indifference rubric defined

by Farmer v. Brennan, 114 S.Ct. 1970 (1994) for the adjudication of similar claims by convicted

inmates. I write further only out of concern that the majority opinion may not explicate the Farmer

v. Brennan decision sufficiently to alert the trial bench and bar of its requirements that have now been

made applicable to pretrial detainee cases in this circuit.

Farmer v. Brennan held that a prison official may be held liable for denying to a convicted

prisoner humane conditions of confinement, under the rule that the official’s deliberate indifference

to substantial risk of serious harm to the prisoner violates the cruel and unusual punishments clause

of the Eight Amendment, if the official (1) is subjectively aware that the prisoner faces such risk, Id

at 1975; and (2) disregards that risk by failing to take reasonable measures to abate the risk. Id at

1976. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference from circumstantial evidence, and a

fact finder may conclude that a prison official knew of a substantial risk from the very fact that the

risk was obvious. Id t 1981. For example, if an Eighth Amendment plaintiff presents evidence

showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or

expressly noted by prison officials in the past, and the circumstances suggest that the defendant-

official being sued had been exposed to information concerning the risk and thus must have known

about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant

official had actual knowledge of the risk. Id at 1981-82. However, it remains open to the officials

to prove that they were unaware even of an obvious risk to inmate health or safety. That a trier of

fact may infer knowledge from the obvious, in other words, does not mean that it must do so. Id at

1982. In addition, prison officials who actually knew of a substantial risk to inmate health or safety

may be found free from liability if they responded reasonably to the risk, even if the harm ultimately

was not averted. Id at 1982-83. As Justice Blackmun observed in his concurring opinion, “Under

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the Court’s decision today, prison officials may be held liable for failure to remedy a risk so obvious

and substantial that the officials must have known about it....” Id at 1986.

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