What Is Obvious? Federal Courts’ Interpretation of the Knowledge Requirement in Post–Farmer v. Brennan Custodial Suicide Cases

The Prison Journal 2015, Vol. 95(1) 23 –42

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What Is Obvious? Federal Courts’ Interpretation of the Knowledge Requirement in Post–Farmer v. Brennan Custodial Suicide Cases

Christine Tartaro1

Abstract The Supreme Court ruling on Farmer v. Brennan established the federal court standard for determining when corrections staff members should be held legally responsible for inmates’ injuries resulting from inmate–inmate violence or self-harm. Legal scholars lamented that requiring plaintiffs to prove deliberate indifference placed a heavy burden on plaintiffs. Two slightly encouraging signs appeared to be Farmer’s end to the “individual-specific” rule and the decision that courts had the option of ruling that the threat of harm was too obvious for the defendants to ignore. This article involves a review of post-Farmer custodial suicide cases and the impact that these two aspects of the Farmer decision has had on these cases.

Keywords Suicide litigation, Section 1983, Farmer v. Brennan, self-harm, Eighth amendment

Suicide is the leading cause of death in jails and the fifth most common cause of death in state prisons in the United States (Noonan, 2012). Lawsuits tend

1The Richard Stockton College of New Jersey, Galloway, USA

Corresponding Author: Christine Tartaro, Professor of Criminal Justice, The Richard Stockton College of New Jersey, 101 Vera King Farris Drive, Galloway, NJ 08205, USA. Email: Christine.tartaro@stockton.edu

563269TPJXXX10.1177/0032885514563269The Prison JournalTartaro research-article2014



24 The Prison Journal 95(1)

to follow attempted and completed suicides that occur in custody, and plain- tiffs typically seek relief in both federal and state courts. Schlanger (2003) surveyed state prison systems and 44 jails with a capacity of at least 1,000 inmates and asked about the types of inmate lawsuits that have been filed against their facilities. Approximately one third of the large jails and prison systems had been sued for a custodial suicide in the 3 years preceding the survey. Suicide cases ranked seventh among reasons why the large jails were subject to litigation.

Incarcerated inmates have a right to certain protections under the constitu- tion. People who are not in custody of a prison, jail, or law enforcement agency have the freedom to pick up a telephone and dial 911 or travel to a medical office for assistance with physical and mental health problems. Placement in custody removes that ability, and the result is that the govern- ment entity who takes away that freedom becomes responsible for prevention of and response to serious harm. Custodial staff members who do not handle this protection properly put their agency at risk of litigation.

Options for Relief in Court

Inmates, or families of inmates in the event of an inmate’s death, can file a tort claim in state court or a civil rights claim in federal court. A tort is a pri- vate wrong or injury that the court may remedy by awarding the plaintiff compensation and damages in the form of a monetary award (Wallace & Roberson, 2000). In the event of an inmate suicide or attempted suicide, the most common type of tort is negligence, where the plaintiffs allege that offi- cials committed a breach of duty that was the proximate cause of some harm. Tort cases do not allow for plaintiffs to ask for attorney fees or any injunctive relief (Anderson & Dyson, 2001).

Tort claims involving custodial suicide or attempted suicide usually involve wrongful death lawsuits, and the standard for establishing wrongdo- ing on the part of the defendants is negligence. The establishment of negli- gence involves the question of whether the officer’s act or failure to act created an unreasonable risk to the detainee. There are four elements required for proving negligence: (a) the officials responsible for the inmate had a legal duty to care for that person, (b) there was a breach of that duty, (c) the breach was the proximate cause of injury, and (d) there was an actual injury (Kappeler, Vaughn, & Del Carmen, 1991).

Plaintiffs who sue in the federal courts do so through title 42, Section 1983, of the U.S. Code, commonly referred to as “Section 1983.” Section 1983 lawsuits deal with the conditions of the inmates’ confinement, including denial of medical care or proper suicide prevention. Civil rights claims



Tartaro 25

provide plaintiffs with more options for relief, including not just monetary awards that torts offer but attorney’s fees and injunctions (Anderson & Dyson, 2001). While the potential rewards associated with civil rights claims are attractive to plaintiffs, the legal standards established by years of federal court decisions has made it very difficult for plaintiffs to succeed.

Proving that law enforcement or correctional personnel violated the con- stitutional rights of inmates, as is required in federal court, is much more difficult than proving negligence in state court. Prior to 1964, few inmates succeeded in convincing federal courts that they were even entitled to civil rights protections. The case of Ruffin v. Commonwealth (1871) set the prec- edent that inmates were to be considered “slaves of the state” and, therefore, were not entitled to protection under the Bill of Rights. The federal courts overturned Ruffin in the 1960s with Fulwood v. Clemmer (1962) and Cooper v. Pate (1964). In both cases, the courts acknowledged that the Bill of Rights applies to inmates and that meant that the Eighth Amendment’s prohibition of cruel and unusual punishment included protections for convicted offenders. While the Eighth Amendment does not specifically address pretrial detain- ees, the Fourteenth Amendment’s Due Process Clause demands that the rights of pretrial detainees be at least as great as those afforded to convicted offend- ers (see City of Revere v. Massachusetts General Hospital, 1983).

Deliberate Indifference Pre-Farmer

The specific issue of inmates’ rights to medical care was not addressed until the Supreme Court heard the landmark case of Estelle v. Gamble (1976). Gamble was a Texas prison inmate who was assigned to farming duty. On November 9, 1973, Gamble was unloading a truck when a bale of cotton fell on him. He was seen by a doctor who diagnosed his injury as a lower back strain. The doctor prescribed a muscle relaxer and a pain reliever and placed Gamble on “cell-pass, cell-feed” status for 2 days, meaning that Gamble was to remain in his cell except for meals and showers. The doctor also ordered that Gamble be moved to a lower bunk bed, but the prison administration did not comply with that order. After additional checks by the doctor, the cell- pass, cell-feed status was extended a few more times until Gamble had been out of work for 3 weeks. In early December, the doctor cleared Gamble for light work duty. The inmate claimed that he was still too injured to work and refused his assignment. He was placed on disciplinary segregation and ordered to see another doctor. The second doctor prescribed medication for high blood pressure and back pain. The prescription for his blood pressure medication, however, was not filled for 4 days because the correctional staff lost it. Gamble continued to receive medical care through December and



26 The Prison Journal 95(1)

January, and the Department of Corrections ordered Gamble back to work again in January. During a January 31, 1974, disciplinary hearing, a member of the prison medical staff testified that Gamble was in “first-class” medical condition and could return to work. The prison staff moved Gamble to soli- tary confinement as punishment for his refusal to work. Gamble’s medical condition worsened while on solitary, and he was hospitalized for heart prob- lems. Gamble filed suit the following month, claiming that the prison staff violated his Eighth Amendment rights with their inadequate medical care.

Gamble’s complaint was eventually heard by the Supreme Court, and while he lost, the case is remembered for setting the standard needed for inmates to prove that their medical care, or lack thereof, violated the constitu- tion’s prohibition of cruel and unusual punishment. The Estelle court estab- lished deliberate indifference as the standard for judging violations of the constitution when the issue in question is satisfactory medical care. The court ruled that inmates had to prove that the staff’s action or inaction resulted in “unnecessary and wanton infliction of pain.” Years later, the Supreme Court further defined deliberate indifference as entailing “something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly” (Farmer v. Brennan, 1994, p. 818). The loss of Gamble’s blood pressure prescription, which resulted in a 4-day delay in his treatment, was considered to be an accident by the court, as there was no proof that the staff intentionally withheld the medication from the inmate (Estelle v. Gamble, 1976).

Estelle v. Gamble involved the question of when deprivation of medical care for a physical ailment becomes a constitutional violation. Federal courts had not yet addressed the question of inmates’ rights to mental health care. That opportunity came when Larry Grant Bowring filed suit for violation of his Eighth Amendment rights. Bowring was housed in a Virginia state prison and was denied parole on three grounds, one of which was a poor outcome on a psychological evaluation. Bowring responded that that state must provide him with a psychological diagnosis and treatment so that he might qualify for parole. Bowring did not prevail because he failed to establish that he did actu- ally have a mental illness. In its ruling, the U.S. Appeals Court for the Fourth Circuit did acknowledge that inmates had just as much a right to mental health treatment as they did to care for physical ailments1 (Bowring v. Godwin, 1977).

The Estelle ruling established deliberate indifference as the standard for civil rights cases involving medical care, and Bowring confirmed that mental health treatment does constitute medical care, but there remained ambiguity about the appropriate test to apply to deliberate indifference cases. Marschke (2004) noted that, following the Estelle ruling, federal circuits seemed to be



Tartaro 27

split on how to apply the deliberate indifference standards to cases involving suicides in custody. Courts differed in their use of either the objective or sub- jective standard of proof.2 With an objective standard, the plaintiffs must sim- ply demonstrate that the defendants should have known of the risk. The subjective standard requires that the plaintiffs provide evidence that the defendants had actual knowledge of the inmate’s problem (Hanser, 2002).

One example of the courts using the objective standard for determining deliberate indifference in a suicide case is Kocienski v. City of Bayonne (1991). Helen Catherine Garity committed suicide in the Bayonne Municipal Jail in 1988 by using her pantyhose to hang herself. This department had a history of dealing with Garity, so there was a documented history of mental illness. There were, however, no apparent signs that she was suicidal at the time of her December 1988 incarceration. When the district court considered the defendants’ request for summary judgment, they used the objective stan- dard. Specifically, the court noted,

In order to sustain a claim under the due process clause, Kocienski must, therefore, show that the officers in question acted with deliberate or wanton indifference to Garity’s serious psychological needs, needs of which they were aware or should have been aware at the time of her incarceration. (p. 19, emphasis added)

The court did grant summary judgment, due to the plaintiff’s failure to dem- onstrate that there was enough evidence of suicidal intent that would have met the “should have known” standard.

When considering custodial suicide, the pre-Farmer case that provided the most guidance to district court judges was Manarite v. Springfield (1992). The Manarite court set a three-prong standard for determining that there was deliberate indifference in a custodial suicide case. First, plaintiffs must show that an unusually serious risk of harm was present. Second, there had to be proof that the defendants actually knew or were willfully blind to the elevated risk. Finally, there had to be proof that the defendants failed to take steps to address that risk. The Manarite court approached suicide cases with subjec- tive standard, allowing only for actual knowledge and “willful blindness” of an elevated risk to be a sufficient trigger for the necessity to act.

The Farmer Decision

While the lower courts had been split between using “should have known” and “actual knowledge” when considering corrections officials’ responsibility for caring for a suicidal detainee since the 1976 Estelle ruling, the Supreme Court ended that debate with the Farmer v. Brennan (1994) decision (Cohen, 2006).



28 The Prison Journal 95(1)

Farmer was a preoperative transsexual who dressed in a feminine manner and took hormones that were smuggled into prison. He was serving time in the federal prison system, and he did so mostly in segregation. The reasons for his segregation were sometimes for disciplinary purposes, but he was also placed in segregation at times for his safety. Farmer was transferred to a higher secu- rity institution and placed in general population where he claimed to have been beaten and raped. Farmer filed a Section 1983 claim, arguing that the correc- tions officials should have known of the risk of placing him in general popula- tion. The district court granted the defendants summary judgment on the grounds that they lacked actual knowledge of the danger. After the appeals court affirmed the summary judgment, the Supreme Court took up the question of whether the objective standard used to define civil law recklessness or the subjective definition of recklessness used in criminal was appropriate to define deliberate indifference. The Farmer court mandated the subjective test. In his opinion, Justice Souter defined the knowledge part of deliberate indifference as having actual knowledge of an objectively substantial risk of serious harm. In the event that there is evidence that allows fact finders to conclude that officials were aware of the risk because the risk was obvious and that evidence is also satisfactory in meeting the subjective test. When addressing circumstances when correctional authorities merely should have been aware of a problem, Souter wrote, “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” (p. 826).

Robertson (2004) considered the impact of Farmer on federal custodial suicide cases and suggested that the decision encouraged two types of defenses. The first is the ostrich defense where defendants will argue that they were simply ignorant of the facts supporting the existence of a high level of risk. According to the Farmer ruling,

Whether the officials had the requisite knowledge is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence; a fact finder may conclude that the officials knew of a substantial risk from the very fact that the risk was obvious; if the prisoner presents evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by the officials in the past, and if the circumstances suggest that the officials had been exposed to information concerning the risk and thus must have known about the risk, then such evidence may be sufficient to permit a trier of fact to find that the officials had actual knowledge of the risk. (HN6)

The second possible defense is the ignorance defense and involves claims that the defendants failed to consider the facts and draw the inference that



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there was an actual serious risk. Robertson acknowledged that the use of the subjective standard does allow for ignorance of obvious risks to remain a defense but not if “evidence showed he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist” (Farmer v. Brennan, 1994, p. 829).

The Farmer court’s ruling that the subjective standard of recklessness, and not the civil law objective standard, was sufficient for establishing deliberate indifference was a setback to plaintiffs. There was, however, one potential positive aspect of the Farmer ruling that could work to the plaintiffs’ advan- tage and that was the change to the individual-specific requirement. The individual-specific requirement prohibited general categories for potential suicide risk from being relevant in attempts to prove liability. Hanser (2002) explained, “The individual-specific requirement must show a strong likeli- hood of risk that is personal to the victim, involving previous threats or attempts of suicide that are both recent and genuine in nature and are specifi- cally known by prison staff” (p. 462) and acknowledged that “the individual- specific requirement had been one of the most difficult hurdles for inmate plaintiffs to overcome in past litigation. Thus, the Farmer decision seemed to produce drawbacks and possible benefits for the inmate plaintiff party” (p. 464). After reviewing civil rights claims under 42 USC Section 1983 in the 6 years following the Farmer decision, Hanser expressed doubt that that the change to the individual-specific requirement actually produced the antici- pated opportunities for inmate plaintiffs and their decedent parties.

In instances when defendants are claiming lack of knowledge of risk to an inmate, the Farmer ruling made it imperative that plaintiffs be able to demon- strate that the defendants did have that knowledge or that the risk was obvious. Inmates and their survivors could do so through providing evidence that either the officials knew of a specific suicide risk for a particular inmate (individual- specific knowledge) or that conditions were such that inmates should be con- sidered part of “identifiable groups at heightened risk of suicide” (Hanser, 2002, p. 464). If plaintiffs can do that, they then have to show that the defen- dants were able to infer, on the basis of the known or obvious facts, that the threat was real. What follows is a review of post-Farmer 42 USC Section 1983 cases that involve defendant arguments of ignorance of suicide risk. This discussion will highlight the challenges for plaintiffs in federal courts.

Rulings Related to the Individual-Specific Rule

While it does not involve a case of suicide, Hale v. Tallapoosa County (1995) provides a good post-Farmer example of a case involving violence in a cor- rectional facility where the individual-specific rule was not applied. Hale was



30 The Prison Journal 95(1)

jailed on failing to appear in court for a hearing on a marijuana charge in May 1990. He was placed in the “bullpen” with several inmates, some of whom were being held for murder and attempted murder. Hale was concerned for his safety but did not approach corrections officers to express his fear. After Hale was beaten while officers were out of earshot and eyeshot of the bull- pen, Hale filed a Section 1983 lawsuit. Hale was able to prevail in court by showing that (a) his placement into the bullpen put him at a substantial risk of serious harm, (b) the defendants were deliberately indifferent to that risk, and (c) the placement in the bullpen caused him to be beaten. There was evi- dence that serious inmate–inmate violence occurred regularly in that facility when it was subjected to overcrowded conditions. In addition, the adminis- trators were aware of that record of violence during overcrowded periods, and they disregarded the risk by failing to address the problem. What is important here is that there was no specific threat to Hale prior to the incident, but the courts denied summary judgment to the defendants due to the evi- dence of the generalized risk.

Despite the Farmer ruling, there are examples of suicide cases decided in district courts, with some rulings affirmed in appeals court, after 1994 where the individual-specific rule seems to have been applied to the detriment of the plaintiffs. Robert Frake was arrested and placed in a police holding cell. While some pieces of clothing commonly used to fashion ligatures in lockups were confiscated from Frake, he was permitted to keep his jacket, which he subsequently used to hang himself. Frake’s survivors brought a Section 1983 suit, arguing that there were 20 suicides and 163 attempted suicides by hang- ing in the holding area, in addition to Frake’s, in the 7 years preceding Frake’s suicide. The plaintiffs argued that the city’s knowledge of the suicide attempts combined with its failure to remove the horizontal metal bars that were often used in detainees’ attempts at self-harm amounted to deliberate indifference. The district court granted the defendants summary judgment on the grounds that the city was not aware that Frake, specifically, was suicidal. Knowledge that the holding cells appeared to be dangerous and provided ample opportu- nity for suicide attempts was not enough to prove deliberate indifference in the absence of actual knowledge of a threat specific to Frake (Frake v. City of Chicago, 2000). This ruling was upheld by the Seventh Circuit Court of Appeals.

The District Court for the Northern District of Texas made a similar ruling in Posey v. Southwestern Bell Telephone (2006). Brian Posey was placed in a holdover cell with a built-in telephone following his arrest. Posey’s mother called the police station to complain that he was harassing her by phone. Officers reacted by transferring Posey to a cell that had a broken phone. Posey used the phone cord to hang himself. Plaintiffs filed suit, citing



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evidence that there were three suicides using a phone cord at the facility in the decade preceding Posey’s death. The court decided that three deaths do not constitute a pattern, and as there was no proof of knowledge that Posey was suicidal, the defendants were entitled to summary judgment.

In Crocker v. County of Macomb (2005), the district court granted the defendants summary judgment, and the U.S. Court of Appeals, Sixth Circuit upheld that ruling, despite the fact that the jail was found to be violation of its own policies. Carl William Tarzwell was arrested for an outstanding warrant, but police and the booking staff noted that he smelled of alcohol. The jail did have two detox cells that allow for constant supervision from the officer’s duty station, but the booking officer lacked the authority to assign anyone to those cells. Tarzwell was placed in a holding cell out of view from the work station. Jail regulations prohibit the placement of any materials on the cell windows that would obstruct the officers’ view, but the cell where Tarzwell was located had papers on the windows. There was a phone in that cell, and the phone cord was not encased in metal sheathing as it was supposed to be. The plaintiff committed suicide in that cell, using the phone cord to asphyxi- ate himself. The plaintiff’s family filed suit, claiming deliberate indifference to Tarzwell’s medical needs. The district court ruled that, to succeed, the plaintiff would have had to demonstrate that Tarzwell’s risk of suicide was known or obvious to the corrections staff and that they deliberately failed to act. Tarzwell had been drinking, but he was able to walk and talk. Without proof of actual knowledge of the risk specific to Tarzwell, the placement in a cell with an obstructed view and the availability of an exposed telephone cord were not enough to establish deliberate indifference.

Rulings on the Obviousness of Risk of Suicide

In the years following Farmer, the lower courts elaborated on exactly what constitutes an obvious risk. The district court in northern Alabama provided criteria for the awareness prong of deliberate indifference in Greffey v. Alabama Department of Corrections (1998). James Edward Morrison was being transferred from a jail to the custody of the Alabama Department of Corrections when he slashed his wrist with a razor. When the prison staff evaluated him, he denied suicidal ideation and claimed that the incident with the razor was in protest of poor treatment by officers. After being transferred to another prison, he told the psychologist that he tried to commit suicide twice in the past. Morrison was placed in segregation after reporting that inmates were trying to rape him, and he committed suicide while in a cell by himself. The court granted the defendants summary judgment and provided guidance for future courts dealing with the issue of awareness. The result was



32 The Prison Journal 95(1)

a four-pronged requirement to satisfying awareness, including that the (a) inmate previously threatened or attempted suicide, (b) the prior threat or attempt was known to the defendants, (c) the prior threat or attempt was somewhat recent, and (d) the prior threat or attempt appeared to be genuine.

How recent does a threat or attempt have to be for courts to decide that officials must interpret it as a sign that the inmate needs help or extra supervi- sion? That was the issue in Holland v. City of Atmore (2001). Holland slit his wrists while in the community, and his family called 911. Holland told the responding paramedics and deputies that he would continue to try to commit suicide. Two months after that incident, he was arrested. He was put on sui- cide watch, because he was intoxicated and remarked that life was not worth it. While he was in the cell, he banged his head against the wall and was taken to the hospital. Five months later, Holland was arrested again but appeared to be calm. One of the staff members from the jail handled the original 911 call from the wrist slashing incident, so that incident was known to the jail offi- cials, as was the previous suicide watch and head banging incident. The judge ruled that

An individual that threatens or attempts suicide has unequivocally expressed an immediate desire or intent to end his life, and that desire or intent may readily be assumed to persist only until the passions provoking it have cooled sufficiently for reason and self-love to regain primacy. A strong likelihood of self-annihilation may remain for periods of a few hours or even a few days after a suicide attempt or threat, but the plaintiffs have identified no support for the proposition that an individual may remain on the brink of suicide for months at a time, much less that Holland did so. (p. 25)

While Holland’s suicide attempt and threats were known and were consid- ered genuine, those incidents were considered to be too distant from the sui- cide for the court to consider Holland’s risk to be obvious.

The case of Snow v. City of Citronelle (2005) involves the courts consider- ing a case with a more recent and known suicide attempt. Snow was arrested for driving while intoxicated, and she complained of having a seizure while in her holding cell. An officer took her to the hospital for treatment, and he overheard Snow telling the doctor that she had attempted suicide in the past. That officer went off duty later that night without relaying that information to any of the other officers. Due to Snow’s erratic and violent behavior while in the cell, another officer called her parents to ask if they would take custody of her. They refused but came to the holding facility a few hours later to drop off some medication. Both parents testified that they informed the officer (Chennault) that she was suicidal. Chennault called the county jail to inquire



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about Snow and was told by one of the jail staff members that she tried to cut her wrist at the jail during the past month. Snow was not put on suicide watch, and Chennault finished her shift without sharing that information with the next shift. Snow hanged herself in her cell later the next day. The district court granted summary judgment to all officers involved in this case, but the appeals court found that they erred in granting summary judgment to Chennault, as it is clear that she knew of the significant risk to Snow’s safety and did nothing to address that risk.

An example of courts ruling in favor of plaintiffs when it appears that defendants are consciously avoiding obvious signs of risk can be found in Terry v. Rice (2003). Donald Terry had a long history of mental illness and incarcerations at the Montgomery County Jail in Indiana. He had a history of suicide attempts at this jail, and he displayed suicidal behavior in his 1998 incarceration when he cut his wrist while in the jail on March 21. The jail staff transferred him to a diagnostic center where he was placed on suicide watch. Six days later, he was transferred back to the jail for finan- cial reasons, and he was not put on suicide watch. In the month preceding the wrist-cutting incident, the inmate’s mother called the nurse and the sheriff to remind them that Terry needed to be on Thorazine. When he was at the diagnostic center, the doctor adjusted his medication dosages, but the jail staff did not review his medical paperwork when he returned to the jail, nor did they review the paperwork when the inmate’s mother called again to ask them if her son’s medication had been adjusted. Terry’s mother vis- ited him on April 12, and he seemed irrational during the visit. Later that day, Terry found out that his girlfriend was leaving him. He committed suicide that night. The district court denied summary judgment and quoted McGill v. Duckworth (1991) in its ruling by noting, “Going out of your way to avoid acquiring unwelcome knowledge is a species of intent. Being an ostrich involves a level of knowledge sufficient for conviction of crimes requiring specific intent” (p. 44).

If a past suicide attempt is known to the authorities but not recent, a com- bination of other factors can be used to provide enough evidence to require corrections personnel to respond to the threat to safety. Matt Sanville had a long history of mental illness, and his corrections file provided evidence that the correctional staff in the Wisconsin Prison System was aware of that his- tory. Sanville’s presentence investigation report included a note about the 30 misconduct reports that he received during confinement at the county jail, and both the prosecutor and defense attorneys requested that the judge find a sentence that included something other than incarceration on account of the defendant’s mental illness. Sanville was sent to prison, and his behavior improved during the short period of time that he was medicated. Per the



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doctor’s recommendation, he stopped taking his medication due to a stomach ache which eventually led to an appendectomy. After surgery, Sanville told the prison psychiatrist that he no longer wanted or needed medication, and the psychiatrist removed the inmate from his patient list. Sanville’s mental state declined to the point where he stopped eating and lost one third of his body weight and was sending letters to his mother that included discussions of his death. Sanville covered the window of his cell with toilet paper, and the corrections staff did not remove it, nor did they use the video monitor to check on his condition for 5 hours. By the time they checked, Sanville had committed suicide. The district court granted summary judgment to the defendants, but the appeals court reversed that ruling for the officers respon- sible for watching Sanville. They noted that the combination of knowledge of Sanville’s previous suicide attempts, his weight loss, and his letters to his mother made it obvious that this was not a normally functioning individual (Sanville v. McCaughtry, 2001).

Inmates who are suicidal do not always disclose that information, even if they are specifically asked by staff members. In conversations with cor- rections personnel, this author has heard numerous officers state that the truly suicidal deny suicidal ideation because they want to be put in a posi- tion where they can carry out a suicide without intervention from staff or other inmates. Strickler v. McCord (2004) is an example of such a case where an inmate with a history of suicidal ideation and self-harming behav- ior denied his suicidal intent to corrections staff so that he would be able to attempt suicide. Donald Strickler survived his attempt and then sued the jail staff for a violation of his Fourteenth Amendment rights, arguing that the staff should have seen the signs of depression that he exhibited. Strickler was arrested for driving while intoxicated. Police noted that he had whis- key, a loaded shotgun, and a suicide note in the car. Strickler denied suicidal ideation when talking to the police officer and booking officer. Strickler’s estranged wife called her brother-in-law who was a deputy, and the deputy informed the jail staff that Strickler was suicidal. Two weeks after his arrest, Strickler told a counselor that he was having suicidal thoughts, but the counselor approved him for placement in the general population. A few weeks later, he attempted suicide by overdosing on Prozac that he hoarded, but that attempt was unsuccessful and went unnoticed by the correctional staff, as all it did was prompt Strickler to sleep through dinner. When he woke up from the Prozac-induced sleep, he cut himself and was found in his cell soaked in blood. Strickler sued for a violation of his civil rights, but the court granted summary judgment to the defendants. Strickler argued that his depression, record of previous suicide attempts, pending divorce, macabre drawings that he made and kept in his cell, and the fact that he



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slept through dinner during the undetected Prozac suicide attempt were suf- ficient signs of an obvious risk. The district court judge disagreed, and Judge Sharp wrote in his opinion that “A duty to take the maximum precau- tions for all inmates with any level of suicide risk would make life misera- ble for any persons at a low level of risk for suicide” (p. 28).

Documentation of suicidal ideation and previous attempts combined with a violation of the jail’s own policies does not necessarily result in a finding of deliberate indifference to an inmate’s needs. John Stewart was arrested for violating probation and placed in the Waldo County (Maine) Jail. At the time of his booking, he was clearly drunk, and the officer who completed the screening form checked “intoxicated” and “appears to be despondent/ depressed.” The officer decided to place him in the detox area rather than the suicide prevention area. Stewart was placed in this same jail 6 weeks earlier and was documented as being both mentally ill and having a history of sui- cidal ideation and attempts. For his most recent incarceration, Stewart was in custody for only 90 minutes before he committed suicide. The officer who placed Stewart in the detox area had not reviewed his incarceration history, so he was unaware of the history of suicide ideation and attempts. Following the suicide, the state department of corrections conducted an investigation and found that the jail did not meet its minimum standards and that, accord- ing to the jail policies, the inmate should have been placed in the special management wing where he would have been subject to close supervision. This was not enough, however, to establish deliberate indifference in federal court. The judge ruled the officers did not realize that Stewart was suicidal, and the court did not consider the neglect to review the inmate’s file within the first 90 min of incarceration to be a purposeful attempt at avoiding acquir- ing knowledge of a risk (Stewart v. Waldo County, 2004).

There have been instances of courts finding that the risk to the inmate was obvious to corrections official even in the absence of previous suicide attempts. John Rosario Junior was a juvenile when he was confined for men- tal health treatment and evaluation in a hospital following a fight with his mother. Rosario was diagnosed with depression, and his hospital records included information about his suicidal ideation and a statement from his grandmother about an incident when the juvenile planned to commit suicide by stabbing. After he was discharged from the hospital, Rosario’s mother told his probation officer about her son’s condition and his need for medication. One month later, Rosario was sent to a juvenile facility. He was not screened by the mental health staff, in violation of the facility’s policies. The facility staff was aware that Rosario was supposed to take Ritalin, but they never arranged for him to receive his medication. Rosario committed suicide less than 6 weeks into his stay at the facility. The District Court of Illinois, Eastern



36 The Prison Journal 95(1)

Division denied the defendants’ motion for summary judgment, ruling that the plaintiff can demonstrate that there is a “strong likelihood” that Rosario would commit suicide while in custody. In his opinion, Judge Shadur wrote,

It almost defies common sense to think that a 14-year-old with behavioral problems that were sufficiently serious to merit hospitalization for over a month, coupled with intense therapy, could be shut off cold turkey and placed in a youth correctional facility without further mental health counseling. (Viero v. Bufano, 1995, p. 26)

Shannon Novak did not have a history of suicide attempts. His doctor in the community diagnosed him as a paranoid schizophrenic who was impulsive and a possible suicide risk. When he was arrested, his mother talked to the deputies about his mental health issues, and the jail personnel agreed to watch him closely. When he was booked, Novak denied any suicidal ideation or past attempts. He spent 2 weeks in the general population. During that time, an inmate approached officers to report that Novak had been pounding on the door and giggling to himself. The staff did not observe anything unusual. The Appeals Court judges for the Seventh Circuit granted summary judgment to the defendants, noting that “Strange behavior alone, without indications that that behavior has a substantial likelihood of taking a suicidal turn, is not suf- ficient to impute subjective knowledge of a high suicide risk to jail personnel” (p. 9). The plaintiffs argued that the risk was obvious and that they discovered several jail policies that differed from what was required by state statute. The judges responded that the plaintiffs failed to show that there was a pattern of suicides at the jail that would have made the jail administration aware that their policies concerning treatment of mentally ill inmates was inadequate, and “Even if we were to find that Novack’s suicide itself was a result of uncon- stitutional conduct, a single instance of allegedly unconstitutional conduct does not demonstrate a municipality’s deliberate indifference to the constitu- tional rights of its inhabitants” (pp. 13-14). Judge Williams dissented, noting that the inmate had threatened to commit suicide 9 months earlier when arrested by the same police department. That, combined with the mother’s discussion with the deputies and his behavior in the jail was enough to show that the jailers knew of the risk to Novak (Turbin v. County of Wood, 2000).

Rulings on Correctional Staff Understanding That There Is a Substantial Risk

The Farmer ruling requires plaintiffs to present evidence that the risk was known or obvious and that the officials were able to draw the inference that



Tartaro 37

the inmate in question was at risk of serious harm. Since Farmer, the lower courts have heard a few cases where this issue was in question.

James Boncher committed suicide while incarcerated in the Brown County (Wisconsin) Jail. Brown had a long history of alcoholism and three prior suicide attempts, but this information was not known to the jail staff. During the entry screening, when he was asked if he had a mental or emotional prob- lem, he responded affirmatively. When asked if he ever attempted suicide, he said, “yeah, a couple days ago but I’m fine now.” The officers assumed he was joking and considered him a “happy drunk.” Boncher was placed in a regular cell and committed suicide 45 minutes later. The district court granted summary judgment to the defendants after concluding that it appeared that the jail staff members assumed that Boncher was joking about his previous suicide attempt (Boncher v. Brown County, 2001).

In Boncher, jail staff only had Boncher’s words and no written or oral his- tory of his substance abuse and mental health problems. The corrections staff was aware of mental health problems and suicide threats in Wever v. Lincoln County (2004), and the question before the court was whether corrections personnel were deliberately indifferent to Wever when they ignored his state- ments. Wever called 911 because he was distraught. When the police arrived, he initially agreed to go peacefully to the hospital. For reasons that were not clear to the district court, the police arrested Wever en route to the hospital so that he was diverted to the jail. He repeatedly told the officers that he would commit suicide if he was placed in jail. When he entered the jail, Wever said, “now it’s time.” The police told the jail staff about his threats on the way to the jail. Wever was placed in an isolation cell with a blanket. He committed suicide within 30 min. The district court denied the defendants summary judgment, and the Court of Appeals, Eighth Circuit affirmed that denial on the grounds that the jail staff appeared to have enough information to realize that Wever was suicidal.

In another case, police were transporting Brenda Clustka to civil protec- tive custody when she became distraught. Clustka screamed that the officers should kill her or she would kill herself. Clustka, who was not handcuffed as required by police department policy, then wrapped the seatbelt around her neck in an attempt to choke herself. The police testified that, while they did not believe that she was joking about wanting to commit suicide, they did not take the attempt seriously because she would have to let go of the seatbelt upon losing consciousness. Once she let go of the seatbelt, she would be able to breathe again, so the officers did not consider it a real suicide attempt. When the officers arrived at the jail, they did not tell anyone about the inci- dent in the car. Clustka committed suicide the next day. Attorneys for the government argued that the police did not consider what they witnessed to be



38 The Prison Journal 95(1)

something that required action to address a serious risk. The district court granted summary judgment to the officers, but the Appeals Court for the Ninth Circuit overturned that ruling. Judge Reinhardt wrote the appeals court opinion and speculated that the officers failed to report the suicidal gesture, not because they failed to perceive the threat but because to do so would have revealed the officers’ violation of the handcuff policy (Conn v. City of Reno, 2010).


The Supreme Court’s ruling in Estelle v. Gamble confirmed that denial of medical care should be considered a violation of inmates’ Eighth Amendment rights in circumstances that involve deliberate indifference to the inmate’s serous medical needs. The Fourteenth Amendment’s due pro- cess clause requires that Eighth Amendment protections be extended to pre- trial detainees. Eighteen years later, the Supreme Court clarified the meaning of deliberate indifference in the Farmer v. Brennan ruling. The objective standard of recklessness, which offers plaintiffs the opportunity to establish deliberate indifference by proving that a risk was such that officials should have been aware of it, was not sufficient to prove that cor- rections officials violated an inmate’s constitutional rights. The subjective standard, with the standard of recklessness used in criminal courts, was considered by the 1994 U.S. Supreme Court to be the appropriate standard for deliberate indifference. Only evidence that officials actually knew of the threat or that the threat was obvious would be sufficient in federal court. In addition, once evidence of the threat is presented, the plaintiffs need to show clear evidence that officials drew the inference that the risk was genu- ine and required a response.

The Farmer ruling was not considered to be an entirely negative outcome for future plaintiffs, as the court gave inmates and their advocates two encour- aging signs. The first was the decision that, under certain circumstances, it was not necessary for plaintiffs to prove that officials were aware of a spe- cific risk against the inmate. Instead, knowledge about certain categories of people or a documented history of problems in some locations of the jail could be enough to demonstrate that officials were aware of the risk to inmates. Hanser (2002) studied lower court rulings in the first few years after Farmer and expressed skepticism about whether the lower courts had, in fact, jettisoned the individual-specific requirement. Three post-Farmer cases involving suicides that involved inmates being placed in settings that would increase their chances of being able to commit suicide were presented earlier in this article, and all three provided evidence that the federal courts continue



Tartaro 39

to use the individual-specific requirements when considering deliberate indifference in custodial suicide cases.

In Frake and Posey, plaintiffs attempted to demonstrate that there was a generalized risk of suicide in the locations where the detainees were held, as the police were aware that inmates held in those same cells had found ways to commit suicide while under intermittent supervision. Despite this aware- ness, the police continued to place people into those cells without constant supervision and that led to additional suicides. In Crocker v. County of Macomb (2005), the presence of papers covering Tarzwell’s cell door pro- vided him with the opportunity to use an improperly stored phone cord to wrap around his neck and remain that way without being detected. Papers were not permitted to be used for privacy, and phone cords were not permit- ted to be unsheathed because they presented inmates with the opportunity to harm themselves or others. None of this evidence helped to produce favor- able rulings for the plaintiffs. All three courts contended that, in the absence of proof that the corrections personnel knew specifically that the inmates in question were suicidal, the officials were not deliberately indifferent to the inmates’ needs.

The federal courts’ definition of what constitutes enough information for the risk to an inmate to be obvious to correctional staff is narrow, and it remains difficult for plaintiffs to convince courts that the risk was obvious. The four-pronged test presented by the Greffey v. Alabama Department of Corrections (1998) court and subsequent rulings by other districts showed that knowledge of one or multiple previous suicide attempts and/or threats is not enough to present an obvious risk. The attempt must have been recent, known to defendants, and must have appeared to have been genuine for cor- rections and police personnel to be accountable for knowing that the inmate is at risk. The 11th Circuit Court of Appeals echoed this in Holland v. City of Atmore (2001), noting that suicidal crises are fleeting and are unlikely to continue uninterrupted for weeks or months. Some pieces of evidence, com- bined with knowledge of the inmate’s mental health or suicidal history, are sufficient for courts to rule that there was an obvious risk. For example, being told of the inmate’s recent suicidal intent by other corrections staff and fami- lies of the inmates tends to generate an obvious risk (see Snow v. City of Citronelle, 2005; Viero v. Bufano, 1995). Knowledge of an inmate’s mental health status, combined with awareness of serious changes to the inmate and clear negligence on the part of the medical staff to address a known mental health problem is also sufficient to establish an obvious risk (Sanville v. McCaughtry, 2001). Any one of the aforementioned factors alone, however, is unlikely to be sufficient, at least in the federal courts. Even a finding that a jail or detention facility violated some of its own policies while supervising



40 The Prison Journal 95(1)

an inmate who then committed suicide is not enough to prove deliberate indifference to an inmate’s risk of harm unless the risk to that specific inmate was obvious (Crocker v. Macomb, 2005; Stewart v. Waldo County, 2004). An inmate’s admission of a very recent suicide attempt might also not be enough to generate knowledge of a suicide risk if the inmate appears to be jovial at the time that he or she makes that disclosure (Boncher v. Brown County, 2001).

While there are several examples of cases where defendants were denied summary judgment and the cases were able to then either be settled out of court or proceed to a jury trial, the standards for awareness of a suicide risk set in Farmer v. Brennan seemed to have offered little assistance to plain- tiffs as they try to demonstrate that police or corrections officials violated the Eighth and/or Fourteenth Amendment rights of people who harm them- selves while in custody. Regardless of the optimism that Farmer would lead to lower courts discarding the individual-specific requirement when deter- mining officials’ liability for harm to inmates, the courts continued to grant summary judgment to defendants in cases where dangerous conditions existed but that the plaintiffs did not prove that the defendants knew about a specific threat to the inmate in question. The courts have also set the stan- dards for what constitutes an “obvious” threat to an inmate so high that it remains a bar that is often too high for plaintiffs. Several of the cases reviewed include statements from federal judges acknowledging that there was likely negligence associated with the inmate’s death, but negligence is a lower standard than deliberate indifference and, therefore, insufficient for federal courts.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.


The author(s) received no financial support for the research, authorship, and/or publi- cation of this article.


1. The court did place limits on what corrections agencies have to provide, stating that corrections staff had to act when a mental health care provider determined that the symptoms provide evidence of a serious condition, the condition is cur- able or treatable, and delay or denial of treatment had the potential to result in substantial harm. In addition, the treatment was to be limited to what could



Tartaro 41

be provided at a reasonable cost rather than what was merely desirable by the inmate (Bowring v. Godwin, 1977).

2. For a discussion of how the courts were split and details of particular cases, see Marschke (2004).


Anderson, J. F., & Dyson, L. (2001). Legal rights of prisoners. Lanham, MD: University Press of America.

Cohen, F. (2006). Custodial suicide: Yet another look. Jail Suicide/Mental Health Update, 15(1), 1-11.

Hanser, R. D. (2002). Inmate suicide in prisons: An analysis of legal liability under 42 USC Section 1983. Prison Journal, 82, 459-477.

Kappeler, V. E., Vaughn, M. S., & Del Carmen, R. V. (1991). Death in detention: An analysis of police liability for negligent failure to prevent suicide. Journal of Criminal Justice, 19, 381-393.

Marschke, L. A. (2004). Proving deliberate indifference: Next to impossible for men- tally ill inmates. Valparaiso University Law Review, 39, 487-539.

Noonan, M. E. (2012). Mortality in local jails and state prisons, 2000-2010-statistical tables. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics.

Robertson, J. (2004). The impact of Farmer v. Brennan on jailer’s personal liability for custodial suicide: Ten years on. Jail Suicide/Mental Health Update, 13(1), 1-5.

Schlanger, M. (2003). Inmate litigation: Results of a national survey. In National Institute of Corrections (Ed.), Large jail network, annual exchange (pp. 1-12). Longmont, CO: National Institute of Corrections Jails Division.

Wallace, H., & Roberson, C. (2000). Legal aspects of corrections. Incline Village, NV: Copper House.

Court Cases

Boncher v. Brown County 272 F.3d 484 (2001). Bowring v. E. Godwin 551 F.2d 44 (1977). City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983) Cole v. Fromm 94 f.3 254 (1996). Cooper v. Pate, 378 U.S. 546 (1964). Conn v. City of Reno 591. F.3d 1081 (2010). Crocker v. County of Macomb 119 Fed. Appx. 718 (2005). Estelle v. Gamble 429 U.S. 97 (1976). Farmer v. Brennan, 128 L. Ed. 2d 811 (1994). Frake v. City of Chicago, 210 F. 3d 779 (2000). Fulwood v. Clemmer 206 F. Supp 370 (1962). Greffey v. Alabama Department of Corrections 996 F. Supp. 1368 (1998). Hale v. Tallapoosa County, 50 F. 3d 1579 (1995). Holland v. City of Atmore 168 F.Supp. 2d 1303 (2001).



42 The Prison Journal 95(1)

Kocienski v. City of Bayonne 757 F. Supp. 457 (1991). Manarite v. Springfield, 957 F.2d 953 (1992). McGill v. Duckworth 944 F.2d 344 (1991). Posey v. Southwestern Bell Telephone 430 F. Supp 2d 616 (2006). Ruffin v. Commonwealth, 62 Va. 790 (1871). Sanville v. McCaughtry: 266 F. 3d 724 (7th Cir. 2001). Snow v. City of Citronelle, et al. 420 F.3d 1262 (2005). Stewart v. Waldo County 350 F. Supp. 2d 215 (2004). Strickler v. McCord: 306 F. Supp 2d 8181 (2004). Terry v. Rice WL 19221818 (2003). Turbin v. County of Wood, 226 F.3d at 534 (2000). Viero v. Bufano 925 F. Supp. 1374 (1995). Wever v. Lincoln County 388 F. 3d 601 (2004).

Author Biography

Christine Tartaro is a professor of criminal justice, Richard Stockton College of New Jersey. Her research interests include new generation jails, suicide in correc- tional facilities, the mentally ill in the criminal justice system, and violence in prisons and jails.

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