Recently, our firm defended a county jail doctor accused of deliberate indifference to the medical needs of a plaintiff during her period of incarceration at the jail. The case was venued in the Eastern District of Wisconsin. The plaintiff, Lynda Carter[1], was convicted on felony charges in April 2013 and sentenced to probation subject to numerous conditions. Ms. Carter absconded from supervision, and a warrant was issued for her arrest that October. She was eventually taken into custody early the following year and housed at the county jail for a few months, during which time she alleged the doctor was deliberately indifferent to her medical needs. After multiple adjournments granted at Ms. Carter's request, a sentencing hearing on revocation was held in October of 2014; Ms. Carter was sentenced and transferred to a state prison.

The law governing Ms. Carter's deliberate indifference claim has evolved in recent years in the Seventh Circuit. One aspect of the applicable law has been settled, albeit turned on its head, by that court, while another remains up in the air.

Analysis Applicable to Deliberate Indifference Claims of Pretrial Detainees

In a 2019 decision, the Seventh Circuit Court of Appeals toppled the longstanding framework for analyzing claims of deliberate indifference in inmate medical care cases. The U.S. Supreme Court decided in Estelle v. Gamble, 429 U.S. 97 (1976) that “deliberate indifference to serious medical needs of prisoners” is prohibited by the Eighth Amendment guarantee against cruel and unusual punishment. However, Estelle and resultant lower court case law created a high hurdle for claimants asserting a claim for deliberate indifference under the Eighth Amendment.[2]

For her claim to survive, a plaintiff was required to show that she had an objectively serious medical condition; that the defendant knew of the condition and was deliberately indifferent in treating it; and that the defendant's indifference caused the plaintiff some injury. See, e.g., Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). This analysis required proof of the subjective state of mind of a defendant medical professional: proof that the defendant both knew of and disregarded “an excessive risk to inmate health[.]” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Proving someone's subjective knowledge or state of mind is, obviously, a very tall order.

The Eighth Amendment prohibition on cruel and unusual “punishment,” however, applies to individuals who have been convicted of a crime and are thus “punishable” under the law. A pretrial detainee, on the other hand, has not yet been found guilty of a crime, and thus may not be “punished” by the state. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979). A pretrial detainee therefore derives her custodial treatment protections instead from the Due Process Clause of the Fourteenth Amendment. Id. at 535 n.16. Bluntly, a pretrial detainee retains more constitutional protections than a convicted inmate. 

Prohibited “punishment” of a pretrial detainee includes deliberate indifference to the detainee's serious medical needs. Salazar v. Chicago, 940 F.2d 233, 1094 (7^th Cir. 1991). For decades, the Seventh Circuit has applied the “same deliberate indifference analysis to” pretrial detainees under the Due Process Clause of the Fourteenth Amendment as the deliberate indifference analysis to convicted inmates under the Eighth Amendment. Pittman v. County of Madison, 746 F.3d 766 (7^th Cir. 2014). This means whether an incarcerated person was a pretrial detainee or a convicted criminal was irrelevant, and the subjective component of the medical treatment deliberate indifference analysis had to be proven.   

The wheels of change began with the 2015 Supreme Court decision Kingsley v. Hendrickson, 576 U.S. 389. Kingsley did not involve medical care, but rather an pretrial detainee's allegation of excessive force by jail officers in violation of the Fourteenth Amendment. Petitioner Kingley was in a county jail awaiting trial when the defendant jail officers allegedly used excessive force against him. Asked whether Kingsley, a pre-trial detainee, must show the defendants “were subjectively aware that their use of force was unreasonable, or only that the officers' use of that force was objectively unreasonable,” Kingsley at 391, the Court concluded that “the appropriate standard for a pretrial detainee's excessive force claim is solely an objective one.” Id. at 396.

Post-Kingsley, circuit courts have split on whether to extend the objective reasonableness standard to other types of constitutional violations alleged by pretrial detainees. The Seventh Circuit has opted to expand the Kingsley standard to medical care claims. In Miranda v. v. County of Lake, 900 F.3d 335, 350 (2018), the Seventh Circuit noted that the “…Supreme Court has been signaling that courts must pay careful attention to the different status of pretrial detainees,” and has emphasized the differing language and the Eighth and Fourteenth Amendments. Id. at 352.

Of the most importance to the Seventh Circuit was Kingsley's reiteration that “pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.'” Id. Therefore, the Seventh Circuit concluded, medical care claims brought under the Fourteenth Amendment by pretrial detainees were now “subject only to the objective unreasonableness inquiry[.]” A pretrial detainee-claimant is thus no longer required to prove a defendant subjectively knew of and disregarded an excessive risk to her health in a Seventh Circuit medical care deliberate indifference claim.

But Who, Exactly, is a Pretrial Detainee?

The lowering of the evidentiary bar for deliberate indifference medical care claims by pretrial detainees is frustrating enough for practitioners defending correctional health care providers. But the lack of guidance on who constitutes a “pretrial detainee” is another snag, and the issue is ripe for resolution in the wake of the circuit split following Kingsley.

As was that of other litigants before her, Ms. Carter's status as an incarcerated person during the time period at issue in our case is a legal grey area. Ms. Carter was in fact convicted of a felony, but during her stay at the county jail under the care of our defendant, she was being housed there as a result of a probation violation and awaiting formal adjudication on the parole violation. She was not “formally” adjudicated on the revocation for several months.

At that point—when Ms. Carter was sentenced on the probation revocation—she became a “convicted” inmate for purposes of analyzing whether a claim for medical care deliberate indifference was subject to the original Eighth Amendment standard. But whether an inmate detained under a probation violation is a pretrial detainee, or a convicted prisoner, is wholly uncertain.

Although the Supreme Court has made it clear that the “State does not acquire the power to punish with which the Eighth Amendment is concerned until it has secured a formal adjudication of guilt in accordance with due process of law,” Ingraham v. Wright, 430 U.S. 651 (1977), Federal courts have not yet reached the issue of the status of inmates held for probation violation.

The uncertainty lies arises from fact that a state has already “secured a formal adjudication of guilt” for a crime underlying probation but has yet to “[secure] a formal adjudication” that probation has been violated and the individual “should be returned to state custody.” Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001). When an individual has previously been convicted but is being held awaiting a probation violation hearing, the courts have not decided whether the underlying conviction, or the “establishment of a probation violation operates as the ‘formal adjudication' required under the Eighth Amendment.” Palmer v. Marion Cty., 327 F.3d 588, 593 (7th Cir. 2003).

When Palmer was decided in 2003, the Eighth and Fourteenth Amendment medical care deliberate indifference analyses were still the same, so the court concluded that parsing out which “formal adjudication” was operative “would be a purely academic” inquiry. Id. Since the analyses were changed by Miranda v. County of Lake in 2018, the “Seventh Circuit has so far avoided deciding” whether the Eighth or Fourteenth Amendment standard applies to plaintiffs detained “as a result of a probation violation.” See Gullo v. Sauk Cty. Jail Med., No. 21-cv-86-bbc, 2021 U.S. Dist. LEXIS 76616, at *2 (W.D. Wis. Apr. 21, 2021); Brandy v. Marquette Cty. Jail, No. 20-cv-502-jdp, 2020 U.S. Dist. LEXIS 131480, at *5 n.1 (W.D. Wis. July 23, 2020).

In Gullo and Brady, the Wisconsin Western District applied the “easier” Fourteenth Amendment, as the plaintiffs' claims failed in both instances even when applying that lower threshold. In ruling on summary judgment in Ms. Carter's case, the Eastern District addressed the unsettled nature of the law regarding which constitutional standard to apply, but, citing the Fourth Circuit, pre-Miranda case Brown v. Harris, supra, determined Ms. Carter's status was closer to that of a pretrial detainee than of a convicted prisoner while being housed at the county jail. It should be expected that the district courts will continue to err on the side of expanded constitutional rights until the probation revocation issue is decided.

Practice Note

Ignore Eastern District scheduling or pretrial orders, no matter how oppressive they may seem, at your own peril. A minutely detailed scheduling order must be used proactively. The judge has given you a practice tool by explaining what is required for you to succeed in that courtroom.

In the same vein, make use of any and all guidance a judge provides. Courtroom-specific resources may be available online, but not handed out to litigants in every case. Our Eastern District judges are experienced and their staff incredibly helpful. There is less uncertainty to practice in the Eastern District than in other jurisdictions, if you do your research and make ready use of available judicial guidance.

[1] Name has been changed.

[2] “Deliberate indifference” applies not just to medical care, but to other constitutional violation claims, such as failure to protect and conditions of confinement. See e.g., Miranda at 350.