CHAPTER 3

Legal Issues Regarding the
Provision of Care in a
Correctional Setting
Charles L. Scott, M.D.

For nearly two centuries in the United States, inmates’ legal rights were
significantly limited during their incarceration, with the government
rarely interfering with a penal institution’s inmate management on behalf of the inmate. This approach became known as the “hands-off approach.” In 1871, a Virginia court articulated this approach in the case
of Ruffin v. Commonwealth (1871) when writing,
A convicted felon ...punished by confinement in the penitentiary instead
of with death ...is in a state of penal servitude to the State. He has, as a
consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He
is for [the] time being a slave of the state.

During the turbulent times of the 1960s, the courts moved away from
this hands-off attitude. A closer scrutiny of inmates’ rights emerged in a
new judicial “hands-on” approach that involved more oversight by the legal system. The U.S. Supreme Court strengthened the foundation for
this philosophical change in the case of Cooper v. Pate (1964). In Cooper,

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64

the Court ruled for the first time that state prison inmates have standing
to sue in federal court to address their grievances. The Court specified
that inmates’ legal rights were not left behind as they crossed the threshold from their life in the community into the world of corrections.
Mental health care providers and correctional officials should be familiar with common legal mechanisms used by inmates to address concerns regarding the care they are provided. This chapter focuses on five
areas related to inmate litigation:
1.
2.
3.
4.
5.

The government’s legal duty to protect inmates
Tort claims alleging medical negligence
Claims alleging a violation of constitutional rights
Involuntary treatment and transfer of inmates
Prison litigation reform

Common legal terms that are often used in litigation are defined in
Table 3–1.

TABLE 3–1.

Correctional litigation terminology

Legal term

Definition

Pro se

Translated as “for oneself.” The filing of a complaint
unrepresented and unassisted by legal counsel. The
majority of prisoners’ complaints are pro se
complaints.

In forma pauperis

Translated as “in the manner of a pauper.” In
pleadings, in forma pauperis grants an inmate the
right to sue without assuming the costs or
formalities of pleading.

Sua sponte

Translated as “of one’s own will.” Refers to a court’s
acting of its own volition, without a motion being
made by either of the adverse parties.

Consent decree

A recorded agreement of parties to a lawsuit
concerning the form that the judgment should
take.

Magistrate judge A judge who has jurisdiction over federal 42 U.S.C.
§1983 claims with consent of both parties.a
Special master
aSee

A person often appointed in prison condition cases
to oversee court-mandated remedial measures.

section “Inmates’ Constitutional Right to Treatment” for further discussion.

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65

LEGAL DUTY TO PROTECT INMATES
The government does not have an affirmative obligation to protect its citizens absent a “special relationship.” That is, the U.S. government has no
constitutional duty to provide income, food, health care, housing, or employment to its citizens, even if the government elects to do so. Taking
someone into custody, however, changes this dynamic. In this situation,
a special relationship is created that obligates the government to protect
inmates from harm (Cohen and Gerbasi 2005).
The U.S. Supreme Court articulated this affirmative obligation in
DeShaney v. Winnebago County Department of Social Services (1989), a case
that actually involved a small child rather than an adult prisoner. Joshua
DeShaney was a 3-year-old child living with his father, Randy, and stepmother. Joshua’s stepmother reported that Joshua’s father had hit Joshua
and left marks on him. Randy denied all accusations to the investigating
social workers, and Joshua was maintained in Randy’s custody. A year
later, Joshua was admitted to a local hospital with multiple bruises and
abrasions, and the Winnebago County Department of Social Services
(DSS) was notified of suspected child abuse. A child protection team recommended that Joshua be returned to his father’s care. Despite repeated
in-home observations by DSS of suspicious bruising and another emergency room visit for injuries believed to be a result of child abuse, Joshua
was maintained under the care of his father. In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that the child entered into a lifethreatening coma. Although Joshua lived, he experienced permanent
brain damage that resulted in his being confined to an institution for individuals with profound retardation.
Joshua and his mother brought a civil rights claim against the Winnebago County DSS. They alleged that by failing to protect Joshua from his
father, DSS had deprived Joshua of his liberty without due process of law,
in violation of his rights under the Fourteenth Amendment.
The U.S. Supreme Court held that a state’s failure to protect an individual against private violence does not constitute a violation of the due
process clause. Joshua and his mother had argued that because the state
had known that Joshua had faced a special danger of abuse at his father’s
hand, a special relationship had existed, and therefore the state had had
a duty to protect Joshua. The Court emphasized that because the state
had not actually taken Joshua into protective custody, the state had no affirmative obligation to protect him. Chief Justice William Rehnquist specifically noted,
The affirmative duty to protect arises not from the State’s knowledge of
the individual’s predicament or from its expression of intent to help him,

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but from the limitation which it has imposed on his freedom to act on his
behalf....In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf—
through incarceration, institutionalization, or other similar restraint of
personal liberty—which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty
interest against harms inflicted by other means. (DeShaney v. Winnebago
County Department of Social Services 1989, p. 201)

The DeShaney Court specifically noted that incarceration represents a
form of state restraint that triggers a constitutional duty to protect inmates. This legal concept is important in how courts have subsequently
analyzed harms that inmates have experienced while incarcerated.

TORT CLAIMS ALLEGING MEDICAL NEGLIGENCE
Tort law governs the legal resolution of complaints regarding medical
treatment. A tort is a civil wrong. Tort law seeks to financially compensate
individuals who have been injured or who have suffered losses due to the
conduct of others. Inmates maintain the right to sue for medical negligence during their incarceration. In cases involving the death of an inmate, the plaintiff is generally a surviving spouse or family member who
seeks financial compensation for the loss of his or her loved one. Torts
are typically divided into one of three categories: 1) strict liability, 2) intentional torts, and 3) negligence.
Strict liability imposes liability on defendants without requiring any
proof of lack of due care, and this standard is not used in malpractice litigation. The most common example of strict liability is harm caused to
an individual resulting from a product proven to be unreasonably dangerous and defective (Schubert 1996).
Intentional torts involve actions in which an individual either intends
harm or knows that harm may result from his or her behavior (Schubert
1996). Examples of intentional torts that involve mental health care include assault (an attempt to inflict bodily injury), battery (touching without consent), false imprisonment, and violation of a person’s civil rights.
Negligent torts occur when a clinician’s behavior unintentionally
causes an unreasonable risk of harm to another. Medical malpractice is
based on the theory of negligence. The four elements required to establish medical negligence are commonly known as the “four Ds”: Dereliction of Duty that Directly results in Damages (see Table 3–2). A duty is
most commonly established for a clinician when the patient seeks treatment, and treatment is provided. The provision of services does not require

Legal Issues Regarding the Provision of Care in a Correctional Setting

TABLE 3–2.

67

The “four D’s” of negligence

Dereliction

Deviations from minimally acceptable standards of
care

Duty

Established when there is a professional treatment
relationship between a clinician and patient

Directly causing

Relationship between dereliction of duty and harm
caused

Damages

The amount of money awarded the plaintiff to
compensate for harm caused

the patient’s presence and can even extend to assessment and treatment
provided over the telephone.
Dereliction of duty is usually the most difficult component of negligence for the plaintiff to establish. Dereliction of duty is divided into acts
of commission (providing substandard care) and acts of omission (failure to provide care). Acceptable care does not have to be perfect care
but is care provided by a reasonable practitioner. This standard requires
that the provider exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill that ordinarily is possessed and exercised by other members of the profession in similar circumstances (Black
1979). An important issue is whether the standard of mental health care
for inmates should be lower than, the same as, or higher than that provided for individuals who are not incarcerated. In an important policy
statement regarding the treatment provided to those incarcerated, a task
force established by the American Psychiatric Association (2000) provided guidance on this issue when noting the following:
The fundamental policy goal for correctional mental health is to provide
the same level of mental health services to each patient in the criminal
justice process that should be available in the community. This policy goal
is deliberately higher than the “community standard” that is called for in
various legal contexts. (p. 6)

Two aspects of causation generally cited as establishing negligence include the foreseeability of the bad outcome and the clinicians’ role in directly causing the harm.
Damages are the amount of money the plaintiff is awarded in a lawsuit.
Various types of damages may be awarded. Special damages are for those
actually caused by the injury and include payment for lost wages and
medical bills. General damages are more subjective in nature and provide
financial compensation for the plaintiff’s pain and suffering, mental an-

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guish, loss of future income due to injury, and loss of companionship. A
third category of damages includes exemplary or punitive damages. Punitive
damages may be awarded when the defendant has been determined to
have acted in a malicious or grossly reckless manner. Because punitive
damages generally involve harm that is intentionally caused, they are rarely
awarded in suicide malpractice cases.

INMATES’ CONSTITUTIONAL RIGHT TO TREATMENT
Legal Overview
Inmates may also sue correctional providers claiming that the care provided, or not provided, violated their constitutional rights. Lawsuits alleging that the care provided was unconstitutional have important differences
from medical malpractice lawsuits described above. The two constitutional amendments that are most commonly cited as potentially being violated in these types of claims are the Eighth Amendment and the Fourteenth Amendment.
The Eighth Amendment to the U.S. Constitution was ratified as part
of the Bill of Rights in 1791. One provision of this amendment prohibits
the federal government from imposing cruel and unusual punishment
on those convicted of a crime. In 1878, the U.S. Supreme Court provided
examples of cruel and unusual punishments, which included publicly
dissecting, burning alive, or disemboweling a convicted person (Wilkerson v. Utah 1878).
How does the Eighth Amendment now relate to constitutional standards of medical care provided to convicted inmates? Consider the following scenario: An inmate is alone in his cell and notices the onset of a
squeezing severe chest pain, accompanied by a tingling in his left arm
and hand and shortness of breath. He believes he is suffering from an
acute heart attack and experiences pain that becomes increasingly intolerable. He contacts the correctional officer and requests help. The correctional officer ignores his request. Because the inmate is incarcerated,
he has no other capability to obtain care for the pain he is experiencing.
He is “tortured” by this ripping chest pain. As a result, this lack of care by
his prison providers exposes him to a cruel and unusual punishment in
violation of the Eighth Amendment. Consequently, convicted prisoners
are the only category of individuals in the United States who have a constitutional right to health care.
The legal mechanism that authorizes an inmate to sue a provider or
correctional official for failing to provide constitutionally adequate care
originates from a federal statute known as 42 U.S.C. § 1983. This statute,

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also known as the Ku Klux Klan Act, was passed in 1871 to help protect
black individuals by providing them a civil remedy for abuses the Klan
committed against them. Section 1 of this federal statute reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law....(Federal Statute 42 U.S.C.
§ 1983 [1871])

The importance of this statute is that it established a legal mechanism to
sue an individual for a violation of a constitutional right. In 1964, the U.S.
Supreme Court held that state inmates could also bring forth a civil rights
suit against prison officials for a violation of their constitutional rights
(Cooper v. Pate 1964). Thus, the door was opened for prison inmates to
sue for a violation of their Eighth Amendment rights if the conditions of
their medical care represented cruel and unusual punishment. These
particular claims are often referred to as “Section 1983” claims.
How, then, do correctional providers know when their care, or lack
of care, equates with a violation of an inmate’s Eighth Amendment right
to such care? In the case of Estelle v. Gamble (1976), the U.S. Supreme Court
attempted to answer this question. J.W. Gamble, an inmate in the Texas
prison system, was allegedly injured when a bale of cotton fell on him
while he was unloading a truck as part of his prison work. Although he
continued to work for 4 hours, he later complained of back stiffness and
was given a pass to go to the prison hospital for evaluation and treatment.
During the ensuing 3 months, inmate Gamble was seen by medical personnel on 17 different occasions and received a variety of treatments for
his back injury and other problems.
On February 11, 1974, Gamble brought a civil rights action under 42
U.S.C. § 1983 against two correctional officials and the medical director,
claiming that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment because of the care, or lack thereof,
provided to him. In particular, Gamble complained that a failure to request an X ray of his back resulted in inadequate assessment and treatment, causing his condition to worsen and thereby subjecting him to cruel
and unusual punishment.
The Gamble Court majority noted that although a failure to conduct
an X ray or use additional diagnostic techniques may represent negligence, the presence of medical malpractice alone does not constitute cruel
and unusual punishment. The Court specifically stated, “Medical mal-

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practice does not become a constitutional violation merely because the
victim is a prisoner” (Estelle v. Gamble 1976). Therefore, the standard establishing a violation of an inmate’s Eighth Amendment rights in regard
to the medical care provided is higher than what is required to establish
medical negligence, which was discussed in the previous section of this
chapter.
The Gamble Court noted that a violation of an inmate’s constitutional
rights was established if prison personnel demonstrated “deliberate indifference” to a prisoner’s “serious illness or injury.” Table 3–3 summarizes
key points of the Gamble Court ruling, in an attempt to clarify the “deliberate indifference” standard.
The phrase “serious medical need” has been defined by at least two
lower courts. The First Circuit Court of Appeals commented that a serious
medical need is one that
has been diagnosed by a physician as mandating treatment, or one that is
so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention....The “seriousness” of an inmate’s needs may also be
determined by reference to the effect of the delay of treatment. (Gaudreault v. Municipality of Salem 1990)

This definition has been criticized because a layperson may not find “so
obvious” the signs and symptoms of mental illness and understand how
such an illness could affect an inmate’s behavior (Cohen and Dvoskin
1992).
Two years later, the Ninth Circuit provided an alternative definition
to what constitutes a “serious medical need”:
A “serious” medical need exists if the failure to treat a prisoner’s condition
could result in further injury or the “unnecessary and wanton infliction
of pain.”...Either result is not the type of “routine discomfort [that] is
‘part of the penalty that criminal offenders pay for their offenses against
society.’”...The existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment; the presence
of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain are examples of
indications that a prisoner has a “serious” need for medical treatment.
(McGuckin v. Smith 1992)

After the enunciation of the deliberate indifference standard, some
confusion arose across jurisdictions regarding how to more precisely evaluate the mind-set of prison officials accused of being deliberately indifferent to an inmate’s needs. As previously emphasized, the U.S. Supreme
Court in Estelle v. Gamble (1976) specified that the deliberate indifference

Legal Issues Regarding the Provision of Care in a Correctional Setting

TABLE 3–3.

71

“Deliberate indifference” defined

Deliberate indifference to serious medical needs constitutes the
unnecessary and wanton infliction of pain, and such indifference
must offend evolving standards of decency.
An inadvertent failure to provide adequate medical care does not
constitute deliberate indifference.
Deliberate indifference may be established by
— Prison doctors in their response to a prisoner’s needs,
— Correctional officers in intentionally denying or delaying access
to medical care, or
— Personnel who intentionally interfere with treatment once
proscribed.
Source.

Estelle v. Gamble 1976.

standard was higher than the negligence standard used in medical malpractice cases. The next highest standard in evaluating someone’s mindset (i.e., mens rea, or guilty mind) in regard to his or her actions involves
analyzing whether the person had a “reckless” mind at the time of his or
her acts. Two types of recklessness have been defined:
1. Subjective recklessness: A person knows of a particular situation or risk
and disregards it
2. Objective recklessness: A person does not know of a particular situation
or risk but, based on the circumstances, should have known
Because the Gamble Court did not provide specific guidance as to which
recklessness standard was to be used in evaluating inmates’ deliberate indifference claims, courts have varied in how they analyzed deliberate
indifference claims, resulting in a confusing trail of court rulings.
Eventually, this confusion was resolved by the U.S. Supreme Court in
the interesting case of Farmer v. Brennan (1994). Dee Farmer, a biological
male, was a preoperative transsexual who received a federal sentence for
credit card fraud. For years prior to Farmer’s conviction and sentence,
Farmer wore women’s clothing, took female hormones, received silicone
breast implants, and even underwent a botched black market testicle removal. After being convicted, Farmer was eventually transferred to the U.S.
Penitentiary in Terre Haute, Indiana, and was placed in the general population of male inmates without voicing objection to this placement. During this time, Farmer allegedly smuggled hormone drugs into prison and
wore the prison clothing off one shoulder, in a “feminine manner.” Within

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2 weeks of being placed in the facility, Farmer was beaten and raped by
another inmate. Farmer subsequently filed a civil rights claim alleging
that prison officials were deliberately indifferent to the placement of
Farmer in this potentially harmful situation. In particular, Farmer asserted
that because this penitentiary had a violent environment and a history of
inmate assaults, correctional officials should have known that Farmer was
at high risk for sexual victimization.
A critical issue in analyzing this case was what standard of recklessness
would apply in determining whether prison personnel were deliberately
indifferent to Dee Farmer. Was the standard subjective recklessness, whereby
the inmate must show that the prison officials had actual knowledge of
the risk or potential danger, or was it objective recklessness, indicating that
the inmate must only show that the prison officials should have known of the
risk or potential danger, even when they did not have actual knowledge?
The U.S. Supreme Court ruled that the appropriate test in evaluating
an inmate’s deliberate indifference claim is subjective recklessness. According to the Farmer Court,
A prison official may be held liable under the Eighth Amendment for acting with “deliberate indifference” to inmate health or safety only if he
knows that inmates face a substantial risk of danger of serious harm and
disregards that risk by failing to take reasonable measures. (Farmer v. Brennan 1994)

The Court also commented that a fact finder could conclude that the
prison officials had the necessary knowledge, despite claims to the contrary, in situations that involved obvious dangers to inmates. In other
words, although the deliberate indifference standard requires knowledge of the risk, prison officials cannot escape liability by pretending that
they did not know of the risk when it is actually obvious that they did
know.

“Serious Medical Need” and Mental Health Needs
In the Estelle v. Gamble (1976) holding, the U.S. Supreme Court stated
that prison officials may not be deliberately indifferent to an inmate’s serious medical needs. Although the Court did not specifically note that
mental health needs were equivalent to medical needs, lower courts have
held that no distinction should be made between medical and mental
health needs when considering deliberate indifference claims.
In Bowring v. Godwin (1976), Larry Bowring, who was serving a sentence for robbery, attempted robbery, and kidnapping, claimed that his
Eighth and Fourteenth Amendment rights were violated because his denial of parole was based, in part, on a psychological evaluation that stated

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he would not successfully complete a parole period. Bowring asserted
that the state must provide him with a psychological diagnosis and treatment so that he would qualify for parole, and a failure to do so constitutes cruel and unusual punishment. In conducting an analysis of
Bowring’s claim, the Fourth Circuit Court of Appeals specifically noted,
We see no underlying distinction between the right to medical care for
physical ills and its psychological or psychiatric counterpart. Modern science has rejected the notion that mental or emotional disturbances are
the products of afflicted souls, hence beyond the purview of counseling,
medication and therapy. (Bowring v. Godwin 1976)

This same court noted that a prisoner is entitled to psychological or psychiatric treatment if a physician or other health care provider concludes
that
1. the prisoner’s symptoms are evidence of a serious disease or injury,
2. such disease or injury is curable or may be substantially alleviated, and
3. the potential for harm to the prisoner by reason of delay or the denial
of care would be substantial.
The Bowring court also emphasized that the right to mental heath
treatment was limited to treatment that could be provided on a reasonable cost and time basis and was medically necessary rather than merely
desirable.

Deliberate Indifference and Pretrial Detainees
The Eighth Amendment discussion above applies only to convicted prisoners. Does this mean that pretrial detainees serving their time in a jail
are not afforded the same constitutional protections and right to be free
from deliberate indifference that are given to convicted prisoners? Obviously, the answer is “no.” In fact, the U.S. Supreme Court has noted
that pretrial detainees have a right to be free from punishment altogether (Bell v. Wolfish 1979) because they have not been convicted of a
crime. In City of Revere v. Massachusetts General Hospital (1983), the U.S. Supreme Court emphasized that the due process clause of the Fourteenth
Amendment
does require the responsible government or governmental agency to provide medical care to persons...who have been injured while being apprehended by the police. In fact, the due process rights of a [pretrial detainee]
are at least as great as the Eighth Amendment protections available to a
convicted prisoner.

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Therefore, in cases involving pretrial detainees, deliberate indifference
claims are analyzed under the Fourteenth Amendment’s due process
clause, and such reviews are conducted in a manner similar to those involving convicted prisoners.

Inmate Suicides and Deliberate Indifference
When an inmate attempts or actually commits suicide, the possibility of a
civil rights action claiming deliberate indifference by correctional staff
should be anticipated, in addition to claims of medical negligence. Does
a risk of suicide equate with the required “serious medical need” component to establish deliberate indifference? In Partridge v. Two Unknown Police Officers (1986), the Fifth Circuit Court evaluated a case involving the
suicide of Michael Partridge, a pretrial detainee arrested by a Houston police officer on suspicion of burglary and theft. Upon his arrest, Michael
was described as hysterical. Michael’s father was at the scene of the arrest
and informed the arresting officer that his son had had a nervous breakdown. When placed into the police car, Michael became agitated and violent and tried to kick the windows and doors out of the car. During the
drive to the jail, he intentionally struck his head against the Plexiglas divider, but he appeared composed by the time he arrived at the jail.
The transporting officers did not report Michael’s behavior at the
scene or during transport to anyone at the jail, and he was subsequently
placed in solitary confinement. Three hours later, Michael tied a pair of
socks to the upper bars of his cell and hanged himself. Clinical records
within the jail documented that Michael had attempted suicide during a
prior confinement. Michael’s parents filed a Section 1983 claim alleging
that the Houston police officers were deliberately indifferent to their
son’s risk of suicide.
The Fifth Circuit Court noted the following in evaluating if a suicide
risk represents a serious medical need:
A serious medical need may exist for psychological or psychiatric treatment, just as it may exist for physical ills. A psychological or psychiatric
condition can be as serious as any physical pathology or injury, especially
when it results in suicidal tendencies. And just as a failure to act to save a
detainee from suffering from gangrene might violate the duty to provide
reasonable medical care absent an intervening legitimate government objective, failure to take any steps to save a suicidal detainee from injuring
himself may also constitute a due process violation under Bell v. Wolfish.
(Partridge v. Two Unknown Police Officers 1986)

Section 1983 claims have also been forwarded for failure to adequately train governmental employees in the identification and appropri-

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ate interventions for potentially suicidal inmates. In the case of Colburn
v. Upper Darby Township (1991), the Third Circuit Court of Appeals noted
that to establish deliberate indifference to an inmate’s constitutional rights
based on failures in a training program, “the identified deficiency must
be closely related to the ultimate injury.” The Colburn court noted that
in this type of Section 1983 claim, the plaintiff must 1) identify specific
training not provided that could reasonably be expected to prevent the
suicide that occurred and 2) demonstrate that the risk reduction associated with the proposed training is so great and so obvious that it can reasonably be attributed to deliberate indifference.
In this same case, the Colburn court provided their methodology regarding how to analyze Section 1983 claims that involved pretrial detainees who committed suicide. According to the standard outlined by this
court, the plaintiff must prove that
1. the inmate had a particular vulnerability to suicide,
2. the custodial officers knew or should have known of this vulnerability,
and
3. the officers acted with “reckless indifference” to the inmate’s particular vulnerability.
The court emphasized that the vulnerability to suicide could not be a
“mere possibility” but must represent a “strong likelihood.” In addition,
the court noted that in evaluating if the officers should have known that
the inmate was vulnerable to suicide, the vulnerability had to be “so obvious that a lay person would easily recognize the necessity for preventative action” (Colburn v. Upper Darby Township 1991).
Common acts of omission or commission involving inmate suicide
that are noted both in tort claims and in Section 1983 claims are highlighted in Table 3–4.

Deliberate Indifference and Other Clinical and
Custodial Care Issues
Claims of deliberate indifference are not limited to inmate suicides or
suicide attempts. Section 1983 claims alleging violation of an inmate’s
constitutional rights are potentially wide-ranging and may include failure to appropriately diagnose, treat, or monitor care given. In addition,
courts may consider if a correctional facility was deliberately indifferent
to the impact of placement in isolation or segregated units such as security housing units. For example, in the case of Jones’El v. Berge (2001), a
federal district court noted that the confinement conditions in a Wisconsin supermax prison may be unconstitutional for inmates with serious

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TABLE 3–4.

Common tort and Section 1983 claims involving inmate
suicide

Failure to properly screen for suicide
Failure to adequately train custodial staff in suicide recognition and
prevention
Failure to communicate information regarding suicide potential
Failure to identify risk of suicide
Failure to appropriately intervene to diminish suicide risk
Failure to adequately treat a suicidal inmate
Failure to provide a safe environment
Failure to provide an appropriate emergency intervention following a
suicide attempt
Source.

Cohen 2008.

mental illness. The authors of Chapter 16, “Supermax Units and Death
Row,” in this handbook further discuss legal rulings related to the constitutional violations associated with the placement of inmates with mental
illness in such settings.

Continued Care After Release From Incarceration
One might expect that the constitutional obligation to provide care to an
inmate ceases upon his or her release from incarceration, particularly in
light of the previously discussed case of DeShaney v. Winnebago (1989),
which held that an affirmative obligation of the state was created when
the person was taken into the state’s custody. However, three more recent
cases indicate that the grasp of this custody requirement may reach beyond the walls of a jail or prison. In the first case, Wakefield v. Thompson
(1999), the Ninth Circuit Court addressed a Section 1983 claim by Timothy Wakefield that a correctional officer at San Quentin Prison was deliberately indifferent to his serious medical needs by refusing to provide
him with prescription psychotropic medication upon his release from
prison. According to Wakefield, his prison psychiatrist had written a 2week prescription for thiothixene for treatment of his diagnosed organic
delusional disorder. In his lawsuit, Wakefield asserted that on the day of
his release, the correctional officer told him that no medication was available and refused to call the medical staff to check on his prescription.
Wakefield claimed that because he was without his necessary antipsychotic medication, he had a relapse of his mental condition, which led
to a violent outburst and his rearrest.

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The Ninth Circuit Court concluded that Wakefield did have an adequate Section 1983 claim that the officer was deliberately indifferent to
his serious medical needs by failing to provide his prescribed medications,
in violation of Wakefield’s Eighth and Fourteenth Amendment rights. In
explaining why the state may have an obligation beyond medical care required during actual incarceration, the court noted,
It is a matter of common sense, however, that a prisoner’s ability to secure
medication “on his own behalf” is not necessarily restored the instant he
walks through the prison gates and into the civil world. Although many
patients must take their medication one or more times a day, it may take
a number of days, or possibly even weeks for a recently released prisoner
to find a doctor, schedule an examination, obtain a diagnosis, and have a
prescription filled. Accordingly the period of time during which prisoners are unable to secure medication “on their own behalf” may extend beyond the period of actual incarceration. Under the reasoning of Estelle
and DeShaney, the state’s responsibility to provide a temporary supply of
medication to prisoners in such cases extends beyond that period as well.
(Wakefield v. Thompson 1999)

The court in Wakefield held that the state must provide an outgoing
prisoner (who needs medication) a “sufficient supply” of medications for
a period of time reasonably necessary to permit the inmate to consult a
doctor and obtain a new supply. This ruling neither stated exactly how
many days of medication must be prescribed nor required that a doctor
or doctor’s appointment be provided.
In what appears to be an extension of the Wakefield holding, the New
York case of Brad H. v. City of New York (2000) addressed obligations by jail
personnel in regard to discharge planning for jail inmates. In 1999, a
class action lawsuit was brought forward on behalf of the nearly 25,000
inmates with mental illness who are released annually from New York
City jails. According to the plaintiffs, inmates with mental illness were released with minimal, if any, coordinated follow-up care. The alleged practice of jail discharge involved releasing the inmates with mental illness in
the isolated Queens Plaza between 2 A.M. and 4 A.M. with $1.50 in cash and
a $3 Metrocard. The complaint alleged that this practice violated inmates’
rights under New York State laws and regulations that require discharge
planning by providers of mental health treatment.
In January 2003, a settlement agreement was reached that provided
various services to qualifying class members. Services included connection with community mental health services, assistance in obtaining medications upon discharge, a discharge summary, aftercare appointments,
and assistance with public housing. For additional information regarding

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discharge placement obligations of correctional personnel, see Chapter 15,
“Clinically Oriented Reentry Planning,” in this handbook.
The third case, Lugo v. Senkowski (2000), represents yet another view
regarding what care, if any, clinicians are obligated to provide after an inmate’s discharge. Mr. Lugo was a New York prison inmate who was paroled from New York’s Clinton Prison. His release occurred shortly after
he underwent surgery for removal of a kidney stone. As part of his surgery, a metal stent was left in the kidney. Mr. Lugo’s physician informed him
that he would need subsequent surgery to remove this stent. Mr. Lugo’s parole release occurred before this surgery could be arranged. Mr. Lugo
subsequently sued, alleging that he was not provided any assistance in obtaining the surgery that had been recommended by his doctor. The judge
interpreted the Wakefield (1999) ruling as requiring the state to provide
care that they had initiated, and this continued obligation should remain
for a “reasonable period of time.”
Although this case did not involve an inmate with mental illness, it raises
the question of how future courts may interpret psychiatric care that is initiated and requires ongoing monitoring for safety upon release. For example, might a mental health care provider have an obligation to arrange
for white blood cell monitoring in the community for a released inmate who
has recently started taking the antipsychotic clozapine? The cases outlined
above suggest that a mental health practitioner should consider the following when an inmate under his or her care is going to be released:
1. Provide psychiatric medications long enough for an inmate to reasonably access a treating provider in the community.
2. Coordinate discharge planning and reentry into the community
when feasible.
3. Consider what monitoring may be necessary for treatment that is begun but not yet completed, and that requires further intervention for
completion of the treatment.

CONSTITUTIONAL ISSUES REGARDING
SYSTEMS OF CARE
In addition to Section 1983 claims involving specific failures in individual
cases, the entire mental health care system can be evaluated to determine
if it meets a constitutionally acceptable standard. One of the most famous
cases that provided guidelines for adequate mental health care was that of
Ruiz v. Estelle (1980). David Ruiz was a Texas prison inmate repeatedly incarcerated for aggravated robbery. In 1972, he filed a 15-page handwritten
civil rights complaint alleging numerous violations of his constitutional

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79

rights, to include the lack of medical care, unlawful placement in solitary
confinement, and harassment by prison officials. His lawsuit was later combined with six other lawsuits into a class action on behalf of all Texas prisoners. After a yearlong trial, the judge ruled in favor of Ruiz and the
prisoners. Texas was ordered to make massive changes in its prison system.
The federal government’s monitoring of the Texas prison system lasted until 2002, when the federal court turned the system back over to state control. The court outlined six requirements of a constitutionally acceptable
mental health program; these are described in Table 3–5.

INVOLUNTARY TREATMENT AND
TRANSFER OF INMATES
Involuntary Medication for Treatment Purposes
Inmates do not give up their right to refuse treatment as a condition of
their confinement; however, involuntary treatment may be administered
in a life-threatening situation if the failure to treat could result in the inmate’s death or serious harm. In addition, most jurisdictions provide a
review mechanism that allows the involuntary treatment of an inmate
when he or she poses a threat of danger to self or others, or is gravely disabled (e.g., unable to attend to his or her basic needs of daily living). The
provider should be familiar with his or her jurisdiction’s legal requirements for the involuntary administration of medications in both jail and
prison settings, because the mechanism for forced treatment may differ
in the two environments.
In some jail settings, the involuntary administration of medication to
jail inmates in nonemergency settings follows a process similar to that
used for individuals being considered for involuntary psychotropic medication in the community. For example, in California, providers who recommend involuntary medicating of a jail inmate must first present their
reasoning for doing so to a judge at a court hearing.
Are such judicial hearings constitutionally required for prison inmates
before involuntary medications may be given? The U.S. Supreme Court
ruled that a nonjudicial administrative review mechanism is constitutionally permissible, as outlined in the case of Washington v. Harper (1990).
Walter Harper was a convicted robber incarcerated in the Washington
State penal system who had episodes of violent behavior when he did not
take his antipsychotic medication. He was transferred on two occasions
to the Special Offender Center (SOC), a state institution for offenders
with mental illness, where he was diagnosed with manic-depressive disorder. The SOC had an institutional review policy for evaluating when anti-

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80
TABLE 3–5.

Guidelines for a constitutionally acceptable mental health
program

1.

The prison must have a systematic program of screening and
evaluations of prisoners to identify those who need mental health
treatment.

2.

Treatment for a prisoner must entail more than just segregation
and close supervision.

3.

The prison must employ enough mental health professionals to be
able to identify and treat the mentally ill in an individualized
manner.

4.

The treating professionals must keep accurate, complete, and
confidential records of the mental health treatment process.

5.

A prisoner cannot be treated with a prescription for behavioraltering medications in dangerous amounts, by dangerous
methods, or without acceptable supervision and periodic
evaluations.

6.

The prison must have a basic program to identify, treat, and
supervise inmates with suicidal tendencies.

Source.

Ruiz v. Estelle 1980.

psychotic drugs could be administered against an inmate’s wishes. According to this policy, a special review committee examined the involuntary
medication recommendations made by the treating psychiatrist. The review committee consisted of a psychiatrist, psychologist, and SOC official, none of whom could be involved in the inmate’s current diagnosis
or treatment. This special committee decided to approve the involuntary
administration of medication only if 1) the committee psychiatrist was in
the majority recommending medication and 2) the inmate had a “mental disorder” and was “gravely disabled” or posed a “likelihood of serious
harm” to self or others.
This SOC policy also provided inmates with many procedural due
process rights, including the following:
•
•
•
•

Right to notice of the hearing
Right to attend the hearing
Right to present evidence and cross-examine witnesses
Right to representation by a disinterested lay adviser versed in the psychological issues
• Right to appeal the decision to the SOC’s superintendent
• Right to periodic review of any involuntary medication ordered

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81

Harper filed a Section 1983 suit claiming that the SOC’s failure to
provide a judicial hearing before the involuntary administration of antipsychotic medication violated the due process clause of the Fourteenth
Amendment. The U.S. Supreme Court held that the due process clause
permits the state to treat a prison inmate who has a serious mental illness
with antipsychotic drugs against his or her will, if he or she is dangerous
to self or others and if the treatment is in his or her medical interest. The
major point of this case is that prison officials are not constitutionally required to arrange a judicial hearing to obtain court approval of involuntary medication of a prisoner with mental illness.

Involuntary Medication for Competency
to Stand Trial Restoration
Occasionally, jail providers may be faced with a situation in which a pretrial detainee who has been found incompetent to stand trial has a court
order that authorizes the involuntary administration of psychotropic
medications even when the inmate has not been found to be a danger to
self or others or to be gravely disabled. This order, referred to as a Sell order, arises out of the case of Sell v. United States (2003). In this case, the
U.S. Supreme Court provided guidance on when pretrial detainees may
be involuntarily medicated to restore their competency to stand trial
even when they are not considered a danger to themselves or others and
are not gravely disabled. Charles Sell was a St. Louis dentist who had a
long-standing history of delusional disorder. He was eventually charged
with multiple counts of Medicaid fraud and one count of money laundering. While Sell was released on bail, his mental status reportedly deteriorated, and he was eventually charged with one count of conspiring to
murder the FBI agent who had arrested him.
Sell was found incompetent to stand trial. After being ordered to a
hospital for competency restoration, he refused to take the antipsychotic
medication prescribed for his delusional disorder. Sell challenged any involuntary medication administration, and the case was appealed to the U.S.
Supreme Court. The issue before the court was whether the U.S. Constitution permits the government to involuntarily administer antipsychotic
drugs to a criminal defendant with mental illness for the purpose of rendering the individual competent to stand trial. The U.S. Supreme Court outlined conditions that must be met prior to the involuntary administration of
medication, and these factors are sometimes referred to as the Sell criteria:
1. The court must find that an important government interest is at stake.
Both person and property crimes can be viewed as serious offenses
that justify the government’s interest in adjudicating criminality.

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2. The court must find that the medication significantly furthers the
state’s interests. For example, the medication should likely render the
defendant competent to stand trial and not have severe side effects
that would interfere with the trial competency.
3. The medication must be the most appropriate method of restoring
trial competency, which cannot be achieved with less intrusive treatments.
4. The medication must be medically appropriate, based on its efficacy
and side effects.
If a jail provider receives a Sell order from the court authorizing involuntary medication, he or she should carefully review the order to verify
that it allows such administration in the jail setting as opposed to a hospital setting. Some orders specify that forced medication for trial competency may be given only in a hospital setting. In this circumstance, the
provider should seek guidance from the court regarding whether or not
the Sell order permits forced medication at the jail. Individuals found incompetent to stand trial are often sent to a state hospital for competency
restoration and may be involuntarily medicated under a Sell order in that
setting. After the hospital determines that the defendant is trial competent, the inmate is usually returned to jail to await his or her competency
hearing. Such defendants sometimes refuse the medications that were
forced on them at the hospital. Does the Sell order still apply while they
await their trial in jail? In other words, does a hospital’s opinion that the
inmate is no longer incompetent to stand trial negate the conditions of
the Sell order? No clear rule on this issue exists, and providers should
contact the court to clarify whether or not such continued involuntary
medication administration is permitted at the jail while the inmate awaits
the competency hearing.

Involuntary Transfer of Prisoners
to a Psychiatric Hospital
Prisoners also have constitutional rights in regard to their being transferred to a psychiatric facility against their will. In the case of Vitek v. Jones
(1980), the U.S. Supreme Court provided criteria to be considered before a prisoner could be involuntarily sent to a psychiatric hospital. At
issue was a Nebraska statute that authorized a state prisoner’s transfer to
a state mental hospital without the inmate’s consent. Mr. Jones had been
convicted of robbery and sentenced to a prison term of 3–9 years. Eight
months after he began serving his sentence, he was transferred to the
prison hospital, and 2 days later, he was housed in solitary confinement at
the prison adjustment center. While there, he suffered serious burns after

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83

he set his mattress on fire. He was subsequently sent by ambulance to the
burn unit of a private hospital, where he remained for approximately
4 months. Mr. Jones was then considered for a possible transfer from the
burn unit to a nonprison psychiatric hospital.
Under the governing Nebraska statute, if a physician or psychologist
finds that an inmate has a mental disease or defect and determines that
the inmate cannot be given proper treatment at the prison, the director
of correctional services may arrange for the inmate’s transfer to a psychiatric facility. Mr. Jones was examined by a psychiatrist, who recommended
that Mr. Jones be sent to a psychiatric hospital, and Mr. Jones reportedly told
the psychiatrist that he agreed with this decision. A year later, he challenged
his transfer under the due process clause of the Fourteenth Amendment,
arguing that inadequate procedures were afforded him regarding the decision to have him serve his sentence in a psychiatric facility as opposed
to a state prison.
The U.S. Supreme Court agreed with Mr. Jones that he had a protected liberty interest under the Fourteenth Amendment and noted that
Nebraska’s reliance on the opinion of a physician or psychologist in determining the conditions for transfer did not provide adequate due process protections. The Vitek Court commented,
Involuntary commitment to a mental hospital is not within the range of
conditions of confinement to which a prison sentence subjects an individual. While a conviction and sentence extinguish an individual’s right to
freedom from confinement for the term of his sentence, they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due
process protections. Here, the stigmatizing consequences of a transfer to
a mental hospital for involuntary psychiatric treatment, coupled with the
subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that
requires procedural protections. (Vitek v. Jones 1980, pp. 491–494)

TheVitek Court upheld minimum procedures outlined by the district
court that must be followed before transferring a prisoner to a mental
hospital (see Table 3–6). The procedural guidelines summarized in
Table 3–6 are typically provided to inmates who are being considered for
transfer to a psychiatric facility. Hearings to consider this move are commonly referred to asVitek hearings. Vitek hearings are not required for
prison-to-prison transfers or in psychiatric emergencies where short-term
crisis stabilization is required.

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84
TABLE 3–6.

Vitek procedures required for prisoner transfer to a
psychiatric hospital

1.

Written notice that a transfer to a mental hospital is being
considered.

2.

A hearing after the prisoner is given written notice that a transfer is
being considered and sufficient time to prepare for this hearing. At
the hearing, the evidence being relied upon for the transfer must
be presented and the inmate must have an opportunity to be heard
in person and to present documentary evidence.

3.

An opportunity to present testimony of witnesses by the defense and
to confront and cross-examine witnesses called by the state, unless
there is a good cause finding for not permitting such presentation,
confrontation, or cross-examination.

4.

A right to an independent decision maker at the hearing.

5.

A written statement by the fact finder as to the evidence relied on
and the reasons for transferring the inmate.

6.

Availability of “qualified and independent assistance” provided by
the state (a licensed attorney is not required).

7.

Effective and timely notice of all of the above rights.

Source.

Vitek v. Jones 1980.

PRISON LITIGATION REFORM
As noted at the beginning of this chapter, the U.S. Supreme Court held
in Cooper v. Pate (1964) that prison inmates could sue for a violation of
their constitutional rights under the Civil Rights Act of 1871. As time
passed, concern arose that inmates were increasingly using this mechanism to file frivolous civil rights claims. In 1994, the U.S. Department of
Justice conducted a study to evaluate Section 1983 claims made by inmates. In 96% of these lawsuits, the inmate proceeded pro se (without
counsel). In 94% of the cases, the inmate won nothing as a result of his
or her claim (Hanson and Daley 1994). Additional findings from this
study are highlighted in Tables 3–7 and 3–8.
In 1995, Congress passed the Prison Litigation Reform Act (PLRA) as
one mechanism to address concerns regarding the costs and time demands associated with frivolous civil rights lawsuits brought by inmates.
When Senator Bob Dole introduced the PLRA as a Senate bill, he stated
that the PLRA was necessary “to provide for appropriate remedies for
prison condition lawsuits, to discourage frivolous and abusive prison lawsuits, and for other purposes” (Dole 1995). Senator Dole provided vari-

Legal Issues Regarding the Provision of Care in a Correctional Setting

TABLE 3–7.

U.S. Department of Justice report on Section 1983
litigation

Inmate plaintiffs in Section 1983 lawsuits
State prison inmates

62%

Jail inmates

36%

Parolees (released inmates)

2%

Defendants in Section 1983 lawsuits
Correctional officers

26%

Wardens/jail administrators

22%

Medical staff (doctors and nurses)

9%

Elected officials

7%

Arresting officers

6%

Source.

Hanson and Daley 1994.

TABLE 3–8.

Top five issues in Section 1983 lawsuits
Percentage
of lawsuits

Issue
Physical security

21%

Medical treatment

17%

Due process

13%

Challenges to conviction

12%

Physical conditions
Source.

85

9%

Hanson and Daley 1994.

ous examples of inmate lawsuit abuses: an inmate sued because he
preferred creamy rather than chunky peanut butter, another sued a
prison barber for a defective haircut, and yet another claimed a civil rights
violation because prison officials had failed to invite him to a pizza party
for a departing prison employee (Dole 1995).
The PLRA was not unanimously lauded by members of the U.S. Senate, and some senators expressed their concerns regarding the potential
consequences of this legislation. For example, Senator Ted Kennedy (1996)
warned that the PLRA effectively stripped federal courts of their remedial power, and he argued that the bill was “patently unconstitutional, and
a dangerous legislative incursion into the work of the judicial branch.”

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Likewise, Senator Joe Biden (1995) cautioned that the PLRA could prevent meritorious lawsuits from being heard by courts.
In reality, the PLRA does contain several key provisions designed to
discourage or prevent prisoners from bringing lawsuits into court. First,
the statute requires indigent inmates to pay the filing fee (up to $150).
The entire fee can be paid in installments over time. Second, the PLRA
requires that before a prisoner forwards a case to court, he or she first
exhaust all administrative remedies that are available. Third, this statute
restricts attorneys’ fees, making it potentially more difficult for inmates
to find legal representation. Fourth, the PLRA contains a “three strikes”
provision, which bars prisoners who have previously filed three or more
frivolous complaints or appeals from filing in forma pauperis (Latin for “in
the manner of a pauper”). Federal and state courts grant this status to individuals without funds so they can pursue litigation with a waiver of the
normal costs. The PLRA restricts this ability in defined circumstances.
In regard to claims for mental or emotional injuries, the PLRA (1995)
specifies the following: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for a mental
or emotional injury suffered while in custody without a prior showing of
physical injury.” The PLRA does not define what constitutes a “mental or
emotional injury,” explain what is meant by “prior showing,” or define
“physical injury.” One could envision a scenario in which an inmate was
threatened with a shank to his throat or witnessed the brutal stabbing of
his cell mate. Under the PLRA, if no physical injury resulted, the inmate
might be restricted from filing a claim for a mental or emotional injury.
Has the PLRA achieved its goal of decreasing the frequency of inmate
lawsuits? In a study examining data made available by the federal court
system and the Bureau of Justice Statistics, Schlanger (2005) examined
jail and prison inmate civil rights suits filed in federal court both before
and after the passage of the PLRA. She noted a sharp decline in inmate
lawsuit rates immediately following passage of the PLRA, in marked contrast to a nearly 25-year history of increasing inmate lawsuits prior to this
legislation. It remains unclear whether this decline represents a decrease
in only frivolous litigation or a drop in some genuine lawsuits due to the
higher hurdles of the PLRA.

CONCLUSION
This chapter has highlighted important aspects involving the standard of
care provided to inmates and their legal rights to care as they traverse
through the criminal justice system. Because incarceration prevents inmates from independently accessing care as they might in the community,

Legal Issues Regarding the Provision of Care in a Correctional Setting

87

the courts have ruled that they have a constitutional right to treatment.
Clearly, an inmate does not lose the right to appropriate mental health care
because he or she has been charged with or found guilty of a crime. This
point was clearly emphasized by the U.S. Supreme Court in the case of Wolff
v. McDonnell (1974): “There is no iron curtain drawn between the Constitution and the prisons of this country.”

SUMMARY POINTS

•

Mental health care providers can be sued for negligence regarding the
care they provide inmates.

•

Mental health care providers can be sued for violating an inmate’s constitutional rights if they are found “deliberately indifferent” to an inmate’s serious medical needs.

•

The standard for deliberate indifference is higher than that for medical
negligence and requires an awareness and disregard of the risk or situation alleged to cause the harm.

•
•

Inmates have a constitutional right to treatment.

•

The Prison Litigation Reform Act was passed to decrease frivolous inmate
lawsuits, and trends do show a subsequent decrease in inmate lawsuit
filings.

Providers should be familiar with their jurisdictional requirements for involuntary medication administration and transfer of inmates.

REFERENCES
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Bell v Wolfish, 441 U.S. 520 (1979)
Biden J: Statement of Senator Joe Biden. 141 Congressional Record S14, 628
(September 29, 1995)
Black HC: Black’s Law Dictionary. St. Paul, MN, West Publishing, 1979
Bowring v Godwin, 555 F.2d 44 (4th Cir. 1976)
Brad H v City of New York, 712 N.Y.S.2d 336 (Sup. Ct. 2000); 716 N.Y.S.2d 852
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Cohen F: Suicide, in The Mentally Disordered Inmate and the Law, 2nd Edition.
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1990)
Hanson RA, Daley HWK: Challenging the conditions of prisons and jails: a report
on Section 1983 litigation. Washington, DC, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 1994
Jones’El v Berge, 164 F.Supp.2d 1096 (W.D. Wis. 2001)
Kennedy T: Statement of Senator Ted Kennedy. 142 Congressional Record
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Lugo v Senkowski, 114 F.Supp.2s 111 (N.D. N.Y. September 25, 2000)
McGuckin v Smith, 974 F.2d 1050 (9th Cir. 1992)
Partridge v Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir. 1986)
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Prisons2006/Reading/Prison_Lawsuits_trends.pdf. Accessed March 25,
2009.
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Boston, MA, Houghton Mifflin, 1996, pp 537–541
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Wakefield v Thompson, 177 F.3d 1160 (9th Cir. 1999)
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