NICOLE B. GODFREY*
Institutional Indifference 
Introduction ...................................................................................... 152 
I. Prison Conditions and the Eighth Amendment ..................... 156 
A. The Origins of the Eighth Amendment .......................... 157 
B. The Eighth Amendment’s Application to Prison 
Conditions ...................................................................... 160 
1. The Birth of the American Penitentiary System ...... 160
2. Incarceration Nation ................................................. 163
3. The Birth of Deliberate Indifference ........................ 165
II. Suits Against Prison Systems for Injunctive Relief .............. 175
A. Suing the Federal Bureau of Prisons .............................. 176 
B. Suing State Prison Systems: The Legal Fiction Created 
by Ex Parte Young and Its Progeny ............................... 178 
C. Suing Local Jails ............................................................ 183 
III. Institutional Indifference to Prison Conditions ..................... 186
A. Application of Current Doctrine in Claims Against 
Institutions ..................................................................... 186 
B. Criticisms of Current Eighth Amendment Doctrine ...... 187 
C. Proposal for Application of Current Doctrine to 
Claims Against Institutions ............................................ 191 
Conclusion ....................................................................................... 194 
* Visiting Assistant Professor, University of Denver Sturm College of Law. For many
critical conversations about the application of current Eighth Amendment doctrines to 
claims against entities, I thank Laura Rovner and Danielle Jefferis, my colleagues in the 
Civil Rights Clinic (CRC) at the University of Denver. I am also grateful to the many 
generations of CRC student attorneys who have litigated these claims on behalf of our clients 
and, in particular, to Ciara Anderson, J.D. 2020, for her research assistance and feedback on 
this piece. I am forever grateful to the many clients who have inspired me to do this work 
and write this piece. All errors are my own. 
[151] 
152 OREGON LAW REVIEW [Vol. 98, 151 
INTRODUCTION 
I t is no secret that American prisons and jails are often cruel and degrading places to those who are forced to live or choose to work 
within their walls.1 With the current political and social interest in 
criminal justice reform, intrepid journalists are shedding some light on 
what goes on behind prison walls.2 But the indignities suffered each 
day by the nearly 2.2 million people held in American prisons and jails3 
occur largely in the dark, out of the public’s critical eye.4 These 
indignities include lack of access to medical care,5 subpar mental health 
1 See, e.g., Shane Bauer, My Four Months as a Private Prison Guard: A Mother Jones 
Investigation, MOTHER JONES (July/Aug. 2016), https://www.motherjones.com/politics/ 
2016/06/cca-private-prisons-corrections-corporation-inmates-investigation-bauer/  
[https://perma.cc/VCU3-NDSC] (describing cells that look like tombs, guards using force 
on a prisoner who just had open-heart surgery as all “part of the bid’ness,” and the 
undercover reporter’s own reflection that, as a prison guard, “[s]triving to treat everyone as 
human takes too much energy”); Mark Binelli, Inside America’s Toughest Federal Prison, 
N.Y. TIMES MAGAZINE (Mar. 26, 2015), https://www.nytimes.com/2015/03/29/magazine/ 
inside-americas-toughest-federal-prison.html [https://perma.cc/RK2X-UY3A] (recounting 
tales of self-mutilation, psychosis, and suicide at the federal supermax prison, where all 
prisoners are held in solitary confinement); Annie Correal, No Heat for Days at a Jail in 
Brooklyn Where Hundreds of Inmates Are Sick and ‘Frantic,’ N.Y. TIMES (Feb. 1, 2019), 
https://www.nytimes.com/2019/02/01/nyregion/mdc-brooklyn-jail-heat.html [https:// 
perma.cc/WP2Y-YJSZ] (recounting the experience of federal detainees “stuck in freezing 
cells” with little to no power or heat for at least a week); Jennifer Gonnerman, Do Jails Kill 
People?, NEW YORKER (Feb. 20, 2019), https://www.newyorker.com/books/under-
review/do-jails-kill-people [https://perma.cc/XMM2-GRYK] (noting that the well-known 
New York City jail on Rikers Island “has long been notorious for its culture of brutality”).  
2 See, e.g., Bauer, supra note 1; Binelli, supra note 1; Correal, supra note 1; Gonnerman, 
supra note 1. 
3 Drew Kann, 5 Facts Behind America’s High Incarceration Rate, CNN (Apr. 21, 2019), 
https://www.cnn.com/2018/06/28/us/mass-incarceration-five-key-facts/index.html [https:// 
perma.cc/K344-RA5Y].  
4 See generally Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public 
Transparency of Penal Institutions, 25 STAN. L. & POL’Y REV. 435, 462–66 (2014) 
(discussing the lack of transparency of penal institutions); Laura Rovner, On Litigating 
Constitutional Challenges to the Federal Supermax: Improving Conditions and Shining a 
Light, 95 DENV. L. REV. 457, 460–64 (2018) (discussing the invisibility of prisons as 
compared to other aspects of the criminal justice system). 
5 Confidential Report of Robert L. Cohen, M.D., Parsons v. Ryan, No. 2:12-cv- 
00601-NVW (D. Ariz. Nov. 8, 2013), https://www.acluaz.org/sites/default/files/field_ 
documents/parsons_v_ryan_cohenexpertreport2013.11.08.pdf [https://perma.cc/R7ET-
55FC] (detailing systemic problems in the delivery of medical care to prisoners confined in 
the Arizona Department of Corrections). The Cohen expert report included a detailed 
recitation of the experience of one prisoner who suffered for months without treatment for 
his throat cancer because of chronic delays by medical staff: 
Beginning in March 2012, medical staffs were fully aware that [prisoner] was in 
severe pain, and did not treat him. When they finally realized that he had an 
uncontrolled infection, they delayed treatment. When he required surgery, the 
2020] Institutional Indifference 153
services,6 physical and sexual assaults by prison staff members,7 and a 
clear disregard for the safety of vulnerable prisoners.8 In theory, 
however, even without public condemnation of the inhumane 
conditions of our prisons, incarcerated persons should be protected 
from cruel conditions under the Eighth Amendment’s prohibition on 
“cruel and unusual punishments.”9 Regrettably, the reality for prisoners 
who seek relief from cruel and inhumane conditions is much more 
complicated.  
Prisoners seeking judicial intervention to stop subjugation to cruel 
conditions must meet an exacting Eighth Amendment test. The prisoner 
must prove that the condition is “sufficiently serious” and that prison 
officials exhibit “deliberate indifference” in exposing the prisoner to 
that condition.10 For prisoners seeking injunctive relief, the proof 
necessary to meet the second prong of this analysis—the deliberate 
indifference prong—is hopelessly unclear. The uncertainty posed by 
the deliberate indifference prong is driven in large part by the federal 
courts’ focus on the subjective intent of individual prison officials.11 
But when a prisoner sues for injunctive relief, he12 most often sues a 
surgery was delayed. When he was diagnosed with cancer, his biopsy was ignored. 
When he sought care for the spreading cancer in March 2013, he again experienced 
delay after delay. Four months after the rediscovery, he had received no treatment. 
This is a horrifying example of a failed system that places every seriously ill man 
and woman it serves at extreme risk. 
Id. ¶ 26. 
6 Binelli, supra note 1. 
7 Katie Benner & Shaila Dewan, Alabama’s Gruesome Prisons: Report Finds Rape and 
Murder at All Hours, N.Y. TIMES (Apr. 3, 2019), https://www.nytimes.com/2019/04/03/ 
us/alabama-prisons-doj-investigation.html [https://perma.cc/Q7YB-69CU]. 
8 Eli Rosenberg, A Federal Inmate Threatened Another for Being Gay. Then Guards 
Moved Them Into the Same Cell, WASH. POST (May 21, 2019), https://www. 
washingtonpost.com/nation/2019/05/21/federal-inmate-threatened-another-being-gay-then 
-guards-moved-them-into-same-cell/?utm_term=.bd810e1f2c0f [https://perma.cc/WG2T-
QJXV]. 
9 U.S. CONST. amend. VIII. 
10 See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Wilson v. Seiter, 501 U.S. 294, 298 
(1991).  
11 Farmer, 511 U.S. at 837–38 (holding that showing of “deliberate indifference” 
requires proof that prison officials knew of and disregarded a substantial risk of harm). 
12 I use the male pronoun here because the overwhelming majority of prisoners are male. 
See, e.g., The Arthur Liman Center for Public Interest Law, Statement to the United States 
Commission on Civil Rights re Women in Prison: Disparate Treatment, Disparate Impact, 
and the Duty of Care, Jan. 25, 2019, at 2 (noting that women make up approximately 7% to 
7.5% of the federal and state prison populations, but also commenting on the marked 
increase in the women’s prison population in recent years). But see id. at 5 (noting that 
women make up 14.5% of the national jail population). 
154 OREGON LAW REVIEW [Vol. 98, 151 
prison system, not an individual prison official.13 Federal courts have 
provided little direction in how a prisoner can demonstrate the 
deliberate indifference of an institution, that is, the deliberate 
indifference of the prison system that confines him.14 
This Article proposes three specific types of proof courts should 
accept as evidence of institutional indifference in Eighth Amendment 
cases for injunctive relief. The three particular sources of proof 
proposed are: (1) the prison system’s policies and procedures related to 
the challenged condition; (2) the prison system’s responses to a 
prisoner’s internal complaints; and (3) the prison system’s inferred 
knowledge from the lawsuit itself and community correctional 
standards. A prisoner does not necessarily need to provide all three 
types of proof in order to prove his claim. The quantum of proof 
necessary to prove deliberate indifference will depend on both the 
condition challenged and the specific factual circumstances of each 
case.15  
Other scholars have provided compelling critiques of the application 
of the deliberate indifference prong in Eighth Amendment claims, and 
many propose a wholesale reworking of the deliberate indifference 
test.16 This Article takes a narrower approach, focusing on why the 
13 The reasons why the prison system, not an individual, is the proper defendant in cases 
involving injunctive relief is discussed in more detail below. See infra Part II. 
14 Throughout this Article, I will use the term institution to refer to prison systems. 
Prisoner claims against institutions can take the form of claims against the institution itself 
for federal prisoners, see, e.g., Silverstein v. Fed. Bureau of Prisons, 559 Fed. App’x. 739 
(10th Cir. 2014) (involving a federal prisoner asserting Eighth Amendment conditions claim 
against federal prison system), or claims against an individual prison official in his or her 
“official capacity” for state prisoners, see, e.g., Decoteau v. Raemisch, No. 13-cv-3399-
WJM-KMT, 2015 WL 3407232 (D. Colo. May 27, 2015) (involving state prisoners asserting 
Eighth Amendment conditions claim against state prison system by naming Executive 
Director of state prison system as defendant in his “official” capacity). State prisoners are 
unable to sue the state or its prison system directly due to Eleventh Amendment immunity, 
but, in effect, official capacity suits are a legal fiction that allow a state prisoner plaintiff to 
plead an action against a government entity that would otherwise be immune. See Kentucky 
v. Graham, 473 U.S. 159, 165–66 (1985).
15 For example, a prisoner challenging the prison system’s treatment of his Type 1
diabetes can demonstrate deliberate indifference by pointing to the prison system’s policies 
on the treatment and care of persons with diabetes. If those policies outline the appropriate 
standard of care for Type 1 diabetes, and the prisoner can show that the prison’s employees 
are not following those policies with his care, then that alone should be sufficient to provide 
deliberate indifference.  
16 See, e.g., Brittany Glidden, Necessary Suffering?: Weighing the Government and 
Prisoner Interests in Determining What is Cruel and Unusual, 49 AM. CRIM. L. REV. 1815 
(2012); Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 
N.Y.U. L. REV. 881 (2009).  
2020] Institutional Indifference 155
current standard is unworkable in cases against institutions and 
proposing a mechanism for proving institutional intent under the 
current deliberate indifference test.  
As detailed below, current Supreme Court doctrine is focused on the 
individual intent of prison officials. The rationale for such a focus is 
that the Cruel and Unusual Punishments Clause of the amendment only 
proscribes punishments.17 In the view of the Court, prison conditions 
claims challenge conduct outside the purview of a traditional criminal 
sentence. Therefore, because the claims involve conditions not 
formally imposed by a criminal court as part of the prisoner’s sentence, 
the Supreme Court requires proof of a specific intent to punish in order 
to afford Eighth Amendment protections.18 But the conditions that a 
prisoner is subjected to during his incarceration are necessarily part of 
his punishment.19 As Professor Sharon Dolovich has persuasively 
shown,  
It is thus implausible to suggest that, because the particular conditions 
of [a prisoner]’s confinement are determined by prison officials after 
the fact and not by the legislature or the judge at the time the sentence 
is announced, those conditions are somehow not part of the penalty 
the sentence represents.20  
17 See, e.g., Wilson v. Seiter, 501 U.S. 294, 302 (1991) (“Eighth Amendment claims 
based on official conduct that does not purport to be the penalty formally imposed for a 
crime require inquiry into state of mind . . . .”).  
18 Id. at 300 (“If the pain inflicted is not formally meted out as punishment by the statute 
or the sentencing judge, some mental element must be attributed to the inflicting officer 
before it can qualify [as punishment protected by the Eighth Amendment].”) (emphasis in 
the original). 
19 Dolovich, supra note 16, at 897–901. 
20 Id. at 900–01 (I have chosen to alter the quote to say prisoner, rather than inmate or 
offender, to promote clarity and consistency within this Article). Professor Dolovich’s 
critique originates from the idea that the American criminal justice system imposes 
punishment through a complex system of intertwined bureaucratic forces, not through the 
actions of individual officials: 
Prison officials who create the conditions under which a prisoner will live are by 
their actions administering a state punishment, whatever their mental state 
regarding the conditions they create. In the most concrete sense, whatever 
conditions a prisoner is subjected to while incarcerated, whatever treatment he 
receives from the officials charged with administering his sentence, is the 
punishment the state has imposed. For this reason, all conditions to which [a 
prisoner] is subjected at the hands of state officials over the course of his 
incarceration are appropriately open to Eighth Amendment scrutiny. Understood 
in this light, the requirement that the punishment be “deliberate[ly]” imposed in 
order “to chastise or deter” does not disappear . . . . That these penalties can take 
years to administer and their precise shape determined only over time by the acts 
and omissions of prison officials who may know nothing of the original crime does 
not make the [prisoner]’s conditions of confinement any less the terms of her 
156 OREGON LAW REVIEW [Vol. 98, 151 
While I fully agree with Professor Dolovich’s robust critique of 
current Eighth Amendment doctrine, the focus of this Article is not how 
the doctrine should be changed to appropriately reflect the realities of 
the American criminal justice system. Instead, the focus is on how to 
apply the current doctrine—doctrine that (albeit wrongly) includes a 
subjective intent inquiry21—to claims brought by prisoners for 
injunctive relief against institutions.  
This Article proceeds in three parts. Part I provides the historical 
context of both the Eighth Amendment and its application to prison 
conditions. It then traces how and why the focus of the Eighth 
Amendment inquiry became deliberate indifference and explains how 
that focus ignores the realities of prison life. Part II examines why and 
how suits for injunctive relief for unconstitutional prison conditions are 
necessarily suits against institutions, not suits against individual prison 
officials. Part III then examines the critiques of the current Eighth 
Amendment doctrine and proposes a new evidentiary framework for 
prison conditions claims asserted against prison systems for injunctive 
relief. Specifically, Part III proposes that courts examine three 
particular types of proof when evaluating institutional indifference in 
prison conditions cases and demonstrates why those types of proof 
demonstrate institutional indifference.  
I 
PRISON CONDITIONS AND THE EIGHTH AMENDMENT 
The Eighth Amendment to the United States Constitution reads: 
“Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted.”22 Since its inclusion in the 
Bill of Rights, the meaning and purpose of the Cruel and Unusual 
Punishments Clause has been largely debated by jurists and scholars. 
Although the clause is clearly meant to prohibit certain types of 
punishment. They simply reflect the particular nature of incarceration as a penal 
form, which in these ways is fundamentally different from more discrete penalties 
like fines or capital punishment. 
Id. at 899–900 (I have chosen to alter the quotes to say prisoner, rather than inmate or 
offender, to promote clarity and consistency within this Article). 
21 See Dolovich, supra note 16, at 897 (noting that the Supreme Court’s focus on the 
subjective intent of prison officials “is premised on a narrow, individualistic conception of 
punishment that is wholly unsuited to the Eighth Amendment context”). 
22 U.S. CONST. amend. VIII. 
2020] Institutional Indifference 157
punishment, jurists and scholars alike still debate whether it allows for 
inquiry into the method of punishment.23 
In other words, if a certain type of punishment is determined to be 
constitutional—such as execution or imprisonment in the modern era—
jurists and scholars disagree as to whether the Eighth Amendment 
provides further constitutional protection as to how that punishment is 
carried out.24 As this Part will demonstrate, current constitutional 
doctrine allows for an inquiry into the constitutionality of how the 
proscribed punishment is executed. But the debate surrounding the 
amendment’s meaning and purpose directly led to the current deliberate 
indifference standard that governs Eighth Amendment challenges to 
prison conditions.  
This Part begins by tracing the historical development of Eighth 
Amendment jurisprudence, including how the Eighth Amendment has 
evolved to allow for inquiry into the conditions experienced by the 
incarcerated. Section I.A examines the textual history of the Eighth 
Amendment at the time of its enactment and then outlines the first 
century and a half of Eighth Amendment jurisprudence. From there, 
Section I.B examines the Supreme Court’s slow recognition of the 
Eighth Amendment’s application to prison conditions and the historical 
conditions that gave rise to that recognition. Finally, the Part concludes 
by describing the birth of the deliberate indifference standard. 
A. The Origins of the Eighth Amendment 
The Eighth Amendment’s text is drawn nearly verbatim from Article 
Ten of the English Bill of Rights of 1689.25 Given the clear link 
between the verbiage used in the two documents, legal historians have 
23 See, e.g., Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The 
Original Meaning, 57 CAL. L. REV. 839, 852–53 (1969) (explaining how the original 
meaning of the Cruel and Unusual Punishments Clause in Article Ten of the English Bill of 
Rights differed from the founders’ understanding of the clause); Meghan J. Ryan, Does the 
Eighth Amendment Punishments Clause Prohibit Only Punishments that Are Both Cruel and 
Unusual?, 87 WASH. U. L. REV. 567, 575 (2010) (arguing that the original meaning of the 
Cruel and Unusual Punishments Clause focused on the methods of punishment); Margo 
Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 CORNELL L. REV. 
357, 365–88 (2018) (tracing the doctrinal development of Eighth Amendment prison 
conditions jurisprudence and summarizing the majority, dissenting, and concurring opinions 
that contributed to the doctrine’s development). 
24 See, e.g., Farmer v. Brennan, 511 U.S. 825, 859 (1994) (Thomas, J., concurring). 
25 Granucci, supra note 23, at 852–53 (“[Article Ten of the English Bill of Rights of 
1689] was transcribed verbatim into the Virginia Declaration of Rights of 1776 and, with 
the substitution of ‘shall’ for ‘ought,’ now appears in the eighth amendment to the United 
States Constitution.”).  
158 OREGON LAW REVIEW [Vol. 98, 151 
sought to understand what both the English parliamentarians and the 
American Framers meant by the Cruel and Unusual Punishments 
Clause.26 While some scholars argue that English parliamentarians 
drafted Article Ten “to prevent the recurrence of cruel methods of 
punishment used during the Bloody Assize of 1685,”27 the current 
scholarly consensus is that Article Ten was simply meant to prevent 
English courts from meting out punishments unauthorized by statute.28 
This consensus, however, does little to explain the Framers’ intent in 
including the Cruel and Unusual Punishments Clause in the American 
Bill of Rights, because most scholars conclude the Framers thought 
Article Ten was intended to prevent cruel methods of punishment.29 
Therefore, most scholars universally accept the idea that the Framers, 
unlike the British parliamentarians, intended for the clause to prohibit 
certain methods of punishment.30  
At least one scholar ascribes the Framers’ focus on methods of 
punishment to a fear of “torture and barbarous punishments” that could 
be imposed by Congress.31 This focus makes sense in the context of 
the colonial approach to crime and punishment.32 For the American 
colonists, local jails only served to confine those waiting for trial, those 
waiting for punishment, and those who could not pay their debts.33 The 
posttrial punishments imposed ranged from “fines, whippings, 
mechanisms of shame (the stock and public cage), banishment, and of 
course, the gallows.”34 Because the colonial criminal justice system 
26 Id. at 853. 
27 Ryan, supra note 23, at 575. In 1685, James, Duke of Monmouth, led a Protestant 
uprising against King James II, which ended at the Battle of Sedgemoor in June of that year. 
Id. at 575–76. After King James II defeated the rebellion, he sought to make an example of 
the rebels to quell future uprisings by imposing barbarous punishments on those found guilty 
of treason. Id. at 576. Such punishments included drawing the rebels “on a cart to the 
gallows, where [they were] hanged by the neck, cut down while still alive, disembowelled 
and [their] bowels burnt before [them], and then beheaded and quartered.” Id. (quoting 
Granucci, supra note 23, at 854). 
28 Ryan, supra note 23, at 576–77. 
29 Id. at 579–80 (discussing why scholars believe the Framers had a fundamental 
misunderstanding of the purpose of Article Ten). 
30 Id.; see also Granucci, supra note 23, at 860–65 (discussing the Americans’ 
misinterpretation of the cruel and unusual punishments clause as used in the English Bill of 
Rights of 1689). 
31 Ryan, supra note 23, at 579. 
32 See David J. Rothman, Perfecting the Prison: United States, 1789–1865, in THE 
OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 
100, 101 (Norval Morris & David J. Rothman eds., 1995).  
33 Id. 
34 Id. 
2020] Institutional Indifference 159
focused on deterrence and repentance rather than rehabilitation, the 
punishments prescribed by colonial law tended to oscillate between 
leniency for first offenses and harshness for repeat offenses of the same 
crime by the same person.35 
Two characteristics inherent to colonial society explain the focus on 
deterrence: its small population and its religious nature.36 American 
colonists “punished . . . the way autocratic fathers or mothers punish 
children; they made heavy use of shame and shaming. The aim was not 
just to punish, but to teach a lesson, so that the sinful sheep would want 
to get back to the flock.”37 In “[a] society short on labor,” imprisonment 
“was not a standard way of making criminals pay.”38 To be certain, the 
colonial citizenry remained committed to the importance of community 
involvement in punishment. In other words, colonial punishment was 
rooted in a belief in the deterrent power of shaming.39 Local 
magistrates tended to impose punishments in the public square, where 
the community could express its collective contempt on the actions of 
the accused.40 Thus, in light of the historical context of punishment in 
the American colonies, it is no surprise that the Framers focused on 
prohibiting certain torturous methods of punishment when enacting the 
Eighth Amendment.41 
Early Eighth Amendment jurisprudence supports this conclusion. 
The Supreme Court’s initial Eighth Amendment cases involved an 
inquiry into the constitutionality of death sentences authorized 
by statute. These early opinions specifically focused on the 
constitutionality of the method of punishment meted out by the 
courts.42 When the type of punishment imposed was imprisonment 
35 Id. at 101–02; see also LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN 
AMERICAN HISTORY 37 (1993) (noting that the point of colonial punishment was to teach a 
lesson). 
36 FRIEDMAN, supra note 35. 
37 Id. 
38 Id. at 48. 
39 Id. at 37, 48 (“Punishment tended to be exceedingly public. The magistrates loved 
confessions of guilt, open expressions of remorse. They loved to enlist the community, the 
bystanders; their scorn, and the sinners’ humiliation, were part of the process . . . . [R]ubbing 
the noses of offenders in community context was an essential part of the process of ripping 
and healing, which criminal justice was supposed to embody.”). 
40 Id. at 37.  
41 Granucci, supra note 23, at 842. 
42 See, e.g., Wilkerson v. Utah, 99 U.S. 130, 136–37 (1879) (holding a statute that 
prescribes the mode of executing a criminal sentence must be followed unless the mode of 
punishment is cruel and unusual in violation of the Eighth Amendment; where a statute is 
160 OREGON LAW REVIEW [Vol. 98, 151 
rather than death, however, the Court became less inclined to focus on 
the method (i.e., the conditions) of incarceration. This changed, 
however, in the mid to late twentieth century, as the American 
penitentiary system began to grow to proportions previously 
unimagined. 
B. The Eighth Amendment’s Application to Prison Conditions 
For the first century and a half after the adoption of the Eighth 
Amendment, federal courts did not entertain challenges to prison 
conditions on an Eighth Amendment theory.43 This changed in the 
latter half of the twentieth century, as prisoners confined in the massive 
prison state slowly started to assert their rights in the federal courts. 
Before examining the jurisprudence that developed as this new class of 
plaintiffs asserted Eighth Amendment claims, it is helpful to 
understand the context of the American carceral system in the mid to 
late twentieth century. 
1. The Birth of the American Penitentiary System
Given the practical realities of the American criminal justice system
in the colonial and post-Revolution eras, it is no surprise that neither 
the Framers nor the earliest members of the federal judiciary thought 
that Eighth Amendment jurisprudence need consider the 
constitutionality of prison conditions. Quite simply, the young nation 
did not use incarceration as a standard form of punishment, and to the 
extent the new nation embarked upon criminal justice reform, it 
focused on whether a new type of punishment may be effective in 
American society.44 Indeed, imprisonment did not become the primary 
mode of punishment until around the early nineteenth century.45  
After the American Revolution, the new nation quickly looked for 
ways to separate itself from its British legacy.46 Viewing the British 
criminal justice system as irrational and unmoored to the rule of law, 
silent on the mode of execution, a court may authorize any constitutional mode (in this 
instance, shooting)).  
43 Glidden, supra note 16, at 1819. 
44 See, e.g., Erin E. Braatz, The Eighth Amendment’s Milieu: Penal Reform in the Late 
Eighteenth Century, 106 J. CRIM. L. & CRIMINOLOGY 405, 427 (2016) (“Examining penal 
reform in the early republic indicates that the determination of what punishments were 
acceptable was a process involving experimentation with new approaches to punishment, 
rather than a fixed state of affairs.”).  
45 Rothman, supra note 32, at 107 (noting that most states began constructing state 
prisons around 1820–1840). 
46 Id. at 102. 
2020] Institutional Indifference 161
American reformers sought to create a criminal justice system anchored 
in a system of rational law.47 As the country began rapidly expanding, 
the stigma and shame of colonial punishments lost their deterrent effect 
as small towns gave way to larger cities and the church lost its 
stranglehold on authority.48 Americans began to question the cause of 
crime in the newfound nation, and those questions ultimately led to the 
adoption of the penitentiary system: 
New ideas about the sources of crime fed the urge to reform. People 
felt that bad company, vice-rotten cities, temptations, weaknesses in 
the family were producing waves of crime. They located the sources 
of deviant behavior in society itself, in the environment. This was, of 
course, quite different from the classic colonial view, which located 
the source of sin in individual weaknesses, or in the devil and his 
minions. But if society itself was corrupting, for some people, what 
was to be done? One solution was a kind of radical surgery: remove 
the deviant from his (weak and defective) family, his evil community, 
and put him in “an artificially created and therefore corruption-free 
environment.”49 
In other words, the American prison system grew out of the perceived 
disarray created by the rapidly growing and changing American 
society.50 
47 FRIEDMAN, supra note 35, at 63–64; see also Braatz, supra note 44, at 439 (“[I]n 
America following the Revolution, traditional sanctions not only came into question because 
of the changing nature of society, but because they were seen as a corrupt inheritance from 
England.”).  
48 Rothman, supra note 32, at 104–05; FRIEDMAN, supra note 35, at 77. 
49 FRIEDMAN, supra note 35, at 77 (quoting DAVID J. ROTHMAN, THE DISCOVERY OF 
THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 71 (1971)).  
50 Rothman, supra note 32, at 104–05. As Professor Rothman postulates, 
Over the period 1820-50, Jacksonian Americans, in marked contrast to their 
colonial predecessors, believed that crime was posing a fundamental threat to the 
stability and order of republican society. The idea of the prison was rooted in this 
perception, reflecting the fear that once stable social relationships were now in the 
process of unraveling, that social order and cohesion were in danger of collapsing. 
It became the task of the prison to do nothing less than ensure the future safety of 
the republic. 
To judge by the numerous articles, pamphlets, and legislative reports that 
discussed the issues, Americans in the antebellum era were frankly puzzled by the 
persistence of crime . . . . The answer that Jacksonian Americans arrived at 
suggests that their great pride in the openness of their society was qualified by a 
nagging fear that this very openness was producing disorder and disarray. As they 
viewed it, all of the institutions [e.g., church and family] that had once stabilized 
the social order were declining in influence . . . . 
Were these fears justified? Was the social crisis real or imagined? It may be 
that European countries were experiencing a degree of social disturbance more 
severe than anything found in the United States. But it is nearly impossible to 
calculate the actual rates of crime in antebellum America—the recording of crime 
162 OREGON LAW REVIEW [Vol. 98, 151 
By the 1820s, inspired by the idea that society must separate its 
deviants in order to transform them into law-abiding citizens, New 
York and Pennsylvania began developing competing models of 
imprisonment to serve this rehabilitative goal.51 The two models 
became known as the Auburn plan and the Pennsylvania plan, 
respectively: 
Under the Auburn plan, prisoners slept alone, one to a cell. They 
came together to eat and to work in the prison shops, but the rules 
prohibited all talking and even the exchanges of glances. The 
Pennsylvania system, on the other hand, confined prisoners to 
individual cells for the entire period of their confinement. They 
worked, ate, and slept in solitary confinement and were allowed to 
see only selected visitors.52 
While an intense debate on the efficacy of the two models of 
imprisonment persisted, state legislatures appropriated considerable 
funds to ensure the operation of at least one penitentiary throughout the 
1820s, 1830s, and 1840s.53 
After the Civil War, the construction and design of new 
penitentiaries was driven by the limitations on state budgets—“by how 
to confine the largest number of [prisoners] at the lowest possible 
cost”54—rather than by the most effective means to carry out the so-
called rehabilitative purpose. As the focus on rehabilitation waned, the 
American penitentiary became known for its “pervasive overcrowding, 
corruption, and cruelty.”55 Prison administrators blamed the cruel 
conditions on the prison system’s need to control the large immigrant 
population that filled the nation’s prisons: 
Prisoners were often living three and four to a cell designed for one, 
and prison discipline was medieval-like in character, with bizarre and 
brutal punishments commonplace in state institutions. Wardens did 
statistics was as primitive as the policing mechanisms themselves. Nevertheless, 
the likelihood is that the preoccupation with crime had less to do with the real 
incidence of crime and more to do with general social attitudes about a society in 
change. Whatever the reality, there was a subjective vision of disorder. Indeed, it 
is this perspective that is most helpful in enabling us to understand the resulting 
form of the public response to crime. 
Id. 
51 Id. at 105. 
52 Id. at 106. 
53 Id. at 107. 
54 Edgardo Rotman, The Failure of Reform: United States, 1865–1965, in THE OXFORD 
HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 169, 170 
(Norval Morris & David J. Rothman, eds., 1995). 
55 Id. 
2020] Institutional Indifference 163
not so much deny this awful reality as explain it away, attributing 
most of the blame not to those who administered the system but to 
those who experienced it. Because the prisons were filled with 
immigrants who were ostensibly hardened to a life in crime and 
impervious to American traditions, those in charge had no choice but 
to rule over [prisoners] with an iron hand. In fact, the closing decades 
of the nineteenth century were the dark ages for America’s prisons.56 
As described in the next Section, the practice of blaming prisoners 
subject to cruel conditions for the existence of those conditions 
continued for the next century. America’s animus toward the human 
beings it incarcerates grew along with the nation’s prison population. 
This animus was driven in no small part by the social strife that plagued 
the reunited nation in the years following the Civil War, as Jim Crow 
laws eventually gave way to the War on Drugs and mass incarceration. 
2. Incarceration Nation
The federal government57 did not open its first prison until 1890.58
In the years following, both the federal and state prison systems rapidly 
expanded.59 By 1930, the number of federal prisoners had so greatly 
increased that the number of federal prisons grew from three to seven, 
and Congress created the Federal Bureau of Prisons, which marked the 
formal creation of the federal prison bureaucracy.60 Meanwhile, state 
systems became so large that many states created prisons that were 
colloquially known as the “Big Houses” because of the sheer number 
of men held within the walls.61 The growth of the American state and 
federal prison systems and the development of the various “Big 
56 Id. 
57 See Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case for 
Recognizing a Damages Remedy for Federal Prisoners’ Free Exercise Claims, 96 NEB. L. 
REV. 924, 973–74 (2018) (noting that until the adoption of the Fourteenth Amendment and 
the development of the incorporation doctrine, the U.S. Constitution applied to the federal 
government only, not the states). 
58 Norval Morris, The Contemporary Prison: 1965-Present, in THE OXFORD HISTORY 
OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 227, 237 (Norval 
Morris & David J. Rothman eds., 1995) (“[T]here were criminal offenses against 
congressional statutes from the first days of the Union, there were no federal prisons until 
the Three Prisons Act of 1890, which authorized the building of federal prisons at 
Leavenworth, Kansas; Atlanta, Georgia; and McNeil Island, Washington. Until 1890, those 
convicted of federal offenses were farmed out by contract to state institutions.”).  
59 Id. (remarking on the growth of the federal system); Rotman, supra note 54, at 170 
(describing growth in state systems). 
60 Morris, supra note 58, at 237. 
61 Rotman, supra note 54, at 185 (“Big Houses were large prisons that held, on average, 
2,500 men, prisons such as San Quentin in California, Sing Sing in New York, Stateville in 
Illinois, and Jackson in Michigan.”).  
164 OREGON LAW REVIEW [Vol. 98, 151 
Houses” attracted the attention of politicians, sociologists, and, 
eventually, lawyers.62 Conditions in prisons were generally “described 
as stenchy, noisy, and excessively cold in the winter and hot in the 
summer.”63 Prison officials often used vicious methods to maintain 
order and discipline.64 
In the face of these conditions, the continuously expanding prisoner 
population, and the social changes that accompanied the post–World 
War II era in the United States, the prisoners’ rights movement was 
born.65 As the eradication of Jim Crow laws led to the creation of the 
War on Drugs, the American prison population exploded:66 “From 
1970 to 1980 the population of the prisons in the United States doubled; 
from 1981 to 1995 it more than doubled again, so that a crisis of 
crowding overwhelmed the prison systems, both federal and state.”67  
Although a detailed discussion of all the causes and effects of the 
exploding prison population is beyond the purview of this Article, it is 
worth pausing to note that the growth of American prisons is 
inextricably intertwined with race and politics.68 After World War II, 
crime became a central feature of most political campaigns.69 The 
rhetoric associated with the politics of crime makes clear that 
imprisonment is meant to be a means of retribution, regardless of 
whether the official, stated purpose is rehabilitation.70 There can be no 
doubt that the rhetoric associated with the law and order politics of the 
62 See generally id. at 185–86. 
63 Id. at 185. 
64 Id. at 195 (“There is an endemic tendency to inflict cruel physical punishment in 
prison environments, a tendency that now constitutes a major source of prisoner litigation.”). 
65 Id. at 191–93. 
66 See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION 
IN THE AGE OF COLORBLINDNESS, passim (2010) (emphasizing the racial disparity in the 
American prison population and tying mass incarceration to America’s past forms of 
institutionalized racism: slavery and Jim Crow). 
67 Morris, supra note 58, at 236. 
68 Id. at 258 (“Efforts at social reform in the early 1960s have been unjustly maligned, 
and the public has been misled by a series of political platforms that make unreal promises 
of effective crime reduction by means of increased severity of punishment, by capital 
punishment, by the lengthening of prison terms, and by false assurances that condign 
incarcerative punishment will be imposed on all criminals.”); MARIE GOTTSCHALK, 
CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF AMERICAN POLITICS 14 (2015) 
(“The construction of the carceral state was the result of a complex set of historical, 
institutional, and political developments.”); ALEXANDER, supra note 66 (emphasizing the 
racial undertones to the political developments of the War on Crime and the War on Drugs). 
69 FRIEDMAN, supra note 35, at 274. 
70 See generally id. at 273–75 (highlighting the “brutality, corruption, and inefficiency” 
of the criminal justice system). 
2020] Institutional Indifference 165
second half of the twentieth century influenced the conditions prisoners 
were subjected to during the period of their carceral punishments.71 
This certainty is important as we discuss how federal courts first began 
to examine prison conditions under the auspices of the Eighth 
Amendment and look at the doctrine that exists today.  
3. The Birth of Deliberate Indifference
For over a century after the adoption of the Eighth Amendment,
federal courts refused to entertain claims challenging prison conditions 
as cruel and unusual.72 The federal courts’ approach to prison 
conditions reflected an unwillingness to “disrupt institutional 
discipline” by exercising authority “over the internal management of 
prisons.”73 This approach later became known as the “hands-off” 
doctrine, and it left prison officials with unfettered discretion to impose 
“whatever punitive or despotic methods they chose to apply.”74  
All this changed, however, in the late sixties and early seventies as 
the Supreme Court began recognizing federal remedies for 
constitutional violations in actions brought under 42 U.S.C. § 1983.75 
In 1964, the Supreme Court held in a per curiam opinion that a 
prisoner’s complaint that prison officials denied him access to certain 
religious publications stated a cause of action, effectively ending the 
hands-off era of prison litigation.76 Thereafter, lower courts and the 
Supreme Court began to entertain cases challenging prison conditions 
on Eighth Amendment theories.77  
By 1976, one of those cases reached the Supreme Court. In Estelle 
v. Gamble,78 J.W. Gamble, a prisoner confined to the Walls Unit of the
Texas Department of Corrections, filed a lawsuit against three Texas 
prison officials for inadequate medical care for a back injury he 
71 See, e.g., GOTTSCHALK, supra note 68, at 184 (“What to do about ‘the worst of the 
worst’ lurks in the background of any discussion about life sentences.”); Thomas L. 
Hafemeister & Jeff George, The Ninth Circle of Hell: An Eighth Amendment Analysis of 
Imposing Prolonged Solitary Confinement on Inmates with a Mental Illness, 90 DENV. U. 
L. REV. 1, 45–46 (2012) (highlighting the stark difference between the myth of supermax 
prisons being full of the “worst of the worst” and the reality of those prisons being full of 
“the wretched of the earth, people who are mentally ill, illiterate, and cognitively impaired”). 
72 Rotman, supra note 54, at 191.  
73 Id. 
74 Id. 
75 See Monroe v. Pape, 365 U.S. 167, 167–68 (1961) (recognizing a federal cause of 
action under 42 U.S.C. § 1983); Godfrey, supra note 57, at 931–32. 
76 Cooper v. Pate, 378 U.S. 546, 546 (1964). 
77 Glidden, supra note 16, at 1819 (collecting cases). 
78 429 U.S. 97 (1976). 
166 OREGON LAW REVIEW [Vol. 98, 151 
received while working his prison job.79 On November 9, 1973, while 
working at the prison’s textile mill, a six-hundred-pound bale of cotton 
fell on top of him, causing substantial injuries, including severe pain in 
his lower back.80 A prison doctor determined that Mr. Gamble did not 
have a herniated disc, gave him some medication, and sent him back to 
his cell.81 The next day, still in pain, Mr. Gamble again saw a prison 
doctor, who diagnosed Mr. Gamble with a lower back strain, prescribed 
a pain reliever and muscle relaxant, and provided him a pass to miss 
work for two days.82 After repeated meetings and continued extensions 
of his work pass, the prison doctor required Mr. Gamble to return to 
work on December 3, despite that Mr. Gamble continued to experience 
as much pain as he had on the first day of his injury.83 Mr. Gamble 
refused to return to work because of the pain, and, in response, prison 
officials placed him in solitary confinement for the entire months of 
December and January.84  
On January 31, 1974, Mr. Gamble appeared before a prison 
disciplinary committee, charged with refusing to work.85 Undeterred 
by the discipline, Mr. Gamble steadfastly refused to return to work. By 
February 4, 1974, Mr. Gamble was experiencing chest pains and black 
outs, and after waiting an entire day, prison officials eventually 
hospitalized him.86 A day later, prison officials sent him back to 
solitary confinement, where he continued to experience unrelenting 
pain in his chest, left arm, and back.87 Prison officials refused his 
request to see a doctor, and Mr. Gamble filed a lawsuit.88 
79 Gamble v. Estelle, 516 F.2d 937, 938 (5th Cir. 1975). 
80 Id. 
81 See Estelle, 429 U.S. at 99. 
82 See id. 
83 See id. at 99–100. 
84 See id. at 100–01. In footnote 5 of Estelle, the Supreme Court implies that 
administrative segregation is somehow different than solitary confinement. Id. at 100 n.5. 
However, administrative segregation is simply one of many euphemisms prison officials use 
for solitary confinement. See, e.g., Tamar R. Birckhead, Children in Isolation: The Solitary 
Confinement of Youth, 50 WAKE FOREST L. REV. 1, 3 n.18 (2015) (“There are many different 
words, phrases, and euphemisms that are used to describe what is most commonly known 
as solitary confinement, including ‘separation,’ ‘isolation,’ ‘intensive support unit,’ 
punitive, protective[,] or administrative segregation . . . .”). Because these terms all are 
synonymous with solitary confinement, I use the term solitary confinement throughout this 
Article.  
85 Estelle, 429 U.S. at 101. 
86 Id. 
87 Id. 
88 Id. 
2020] Institutional Indifference 167
It is against this backdrop that the Supreme Court first adopted the 
deliberate indifference standard for Eighth Amendment prison 
conditions claims.89 After providing a brief summary of the 
interpretation and development of Eighth Amendment law, the Court 
ultimately concluded that two “elementary principles” demonstrate 
why the Eighth Amendment requires that prisons provide medical care 
“for those whom it is punishing by incarceration.”90 First, prisoners 
have no options for medical care other than those provided by their 
incarcerators. A failure to provide sufficient care may result in torture 
or death, “the evils of most immediate concern to the drafters of the 
Amendment.”91 Second, contemporary standards of decency require 
avoidance of “unnecessary suffering.”92 Under these principles, the 
Court concluded that “deliberate indifference to serious medical needs 
of prisoners constitutes the ‘unnecessary and wanton infliction of 
pain[,]’ . . . proscribed by the Eighth Amendment.”93 The Estelle Court 
did not clearly define what it meant by deliberate indifference, instead 
concluding that Mr. Gamble’s claims against the prison doctor could 
not amount to deliberate indifference because, at most, those claims 
amounted to medical malpractice, which could not be deliberate 
indifference.94 The Court remanded the claims against other prison 
officials to the lower courts for consideration whether those claims 
demonstrated deliberate indifference.95 On remand, the Fifth Circuit 
“found that his care had not been sufficiently poor to justify 
compensation.”96 
Not long after Estelle, the Supreme Court considered another case 
challenging prison conditions in Rhodes v. Chapman.97 In Rhodes, two 
prisoners at Southern Ohio Correctional Facility (SOCF), Kelly 
Chapman and Richard Jaworksi, challenged the prison’s practice of 
double-celling.98 Mr. Chapman and Mr. Jaworksi, as representatives of 
89 See id. at 104. 
90 Id. at 102–03. 
91 Id. at 103. 
92 Id. 
93 Id. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). 
94 See id. at 106–07. 
95 See id. at 107–08. 
96 Steve Coll, The Jail Health-Care Crisis, NEW YORKER (Feb. 25, 2019), 
https://www.newyorker.com/magazine/2019/03/04/the-jail-health-care-crisis?reload=true 
[https://perma.cc/77QL-J3KE].  
97 452 U.S. 337 (1981). 
98 Id. at 339–40. Double-celling refers to the practice of confining two prisoners to an 
individual cell. See generally id. 
168 OREGON LAW REVIEW [Vol. 98, 151 
a class of prisoners confined at SOCF, sought an injunction requiring 
the prison to discontinue the double-celling practice.99 In determining 
that SOCF’s practice of double-celling could not be deemed cruel and 
unusual, the Court focused on the objective effects of the double-
celling. The Court found that the practice did not deprive prisoners of 
food, medicine, or sanitation nor did it increase violence among 
prisoners.100 In making these determinations, the Court made clear it 
was focusing on “objective factors to the maximum possible extent.”101 
After Estelle and Rhodes, the lower courts struggled to uniformly 
apply the deliberate indifference test.102 Much of this confusion was 
99 Id. at 340. 
100 Id. at 348 (finding also that diminished rehabilitative opportunities did not amount to 
cruel and unusual punishment).  
101 Id. at 346 (quoting Rummel v. Estelle, 445 U.S. 263, 274–75 (1980) (internal 
quotations omitted)). In reaching its determination that the objective realities of conditions 
in SOCF precluded a finding of cruel and unusual punishment, the Court relied on Estelle 
and Hutto v. Finney, 437 U.S. 678, 685 (1978), where the Court also focused on objective 
indicia to determine that “conditions of confinement in two Arkansas prisons constituted 
cruel and unusual punishment because they resulted in unquestioned and serious deprivation 
of basic human needs.” Rhodes, 452 U.S. at 347 (citing Hutto, 437 U.S. at 685). Notably, 
the Hutto Court expressly recognized that “[c]onfinement in a prison . . . is a form of 
punishment subject to scrutiny under Eighth Amendment standards.” 437 U.S. at 685. 
102 See, e.g., Tillery v. Owens, 907 F.2d 418, 426–28 (3d Cir. 1990) (focusing on 
objective indicia (e.g., “increased violence, disease, and other negative conditions”) to 
determine that conditions at the State Correctional Institution at Pittsburgh fell so far below 
constitutional norms that double-celling could be found unconstitutional); Foulds v. Corley, 
833 F.2d 52, 54–55 (5th Cir. 1987) (declining to require a showing of intent and focusing 
instead on objective question of severity of pain to prisoner where prisoner alleged “that his 
solitary confinement cell was extremely cold and that he was forced to sleep on the floor 
where rats crawled over him”); French v. Owens, 777 F.2d 1250, 1252–54 (7th Cir. 1985), 
cert. denied, 468 U.S. 817 (1986) (affirming an injunction prohibiting double-celling on 
behalf of a class of prisoners at the Indiana Reformatory at Pendleton where “deplorable 
conditions,” including inadequate ventilation, poor lighting, “dirty and odorous” cells with 
no hot water, “uncleanable” bathrooms, and “poor supervision, safety, medical care and 
food preparation” existed in the facility; also affirming injunction against the use of 
mechanical restraints where prison used mechanical restraints “against those who threatened 
suicide or were physically disruptive” by chaining them to a bed, often stripped of clothing, 
and denying them the right to use the toilet such that they “had to lie in their own filth”); 
Hoptowit v. Spellman, 753 F.2d 779, 783–84 (9th Cir. 1985) (affirming injunction based on 
findings of inadequate lighting, poor plumbing, vermin infestation, substandard fire 
prevention, lack of adequate ventilation, serious safety hazard in the occupational areas, lack 
of cleaning supplies, and unsafe conditions in the segregation and protective custody units). 
Compare Lopez v. Robinson, 914 F.2d 486, 491–92 (4th Cir. 1990) (granting qualified 
immunity to prison warden where prisoners did not provide evidence disputing penological 
justification of warden’s subjective decisions to turn off running water in individual cell for 
twenty-four-hour period and to lock prisoners down in their cells during the same period), 
and Givens v. Jones, 900 F.2d 1229, 1234 (8th Cir. 1990) (focusing on subjective beliefs of 
prison officials as to whether noise and fumes from remodeling in prison in area near where 
prisoner-plaintiff was confined could give prisoner-plaintiff migraine headaches), and 
2020] Institutional Indifference 169
compounded by the Supreme Court’s decision in Whitley v. Albers, 
wherein the Court announced that “[i]t is obduracy and wantonness, 
not inadvertence or error in good faith, that characterize the conduct 
prohibited by the Cruel and Unusual Punishments Clause, whether that 
conduct occurs in connection with establishing conditions of 
confinement, supplying medical needs, or restoring official control 
over a tumultuous cellblock.”103 Whitley was the Supreme Court’s 
“first application of the [Eighth] Amendment to prison officials’ use of 
force,”104 and it imposed a heightened intent requirement in use-of-
force cases.105 Because the Whitley Court made clear that the quantum 
and type of proof necessary to prove an Eighth Amendment violation 
in a prison conditions case turned on the “differences in the kind of 
conduct against which an Eighth Amendment objection is lodged,”106 
Whitley is significant in that “it recognized that Eighth Amendment 
state of mind requirements could differ depending on different 
situations.”107  
However, even post-Whitley, the lower federal courts continued to 
struggle to determine what the Supreme Court meant by deliberate 
indifference and when deliberate indifference (as opposed to Whitley’s 
obduracy and wantonness) applied. Professor Brittany Glidden 
Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988), cert. denied, 488 
U.S. 823 (1988) (upholding award of damages against prison officials and focusing on 
prison officials knowledge of and response to “appallingly bad” prison conditions, “with 
severe overcrowding (a system-wide average of twenty square feet per prisoner), squalor, 
maltreatment, gang warfare, killings, lack of proper medical care, failure to segregate 
mentally disturbed prisoners, guards unable to control entire cellblocks, and other horrors” 
when determining whether prison officials were deliberately indifferent to prison 
conditions), with Morgan v. District of Columbia, 824 F.2d 1049, 1057–58 (D.C. Cir. 1987) 
(affirming appropriateness of district court’s deliberate indifference jury instruction 
focusing on what prison officials knew or should have known), and LaFaut v. Smith, 834 
F.2d 389, 394 (4th Cir. 1987) (finding prison official who “was fully advised both of the 
inhumane conditions of prisoner-plaintiff’s confinement” and who failed “to provide him 
with needed therapy” liable under the Eighth Amendment). 
103 475 U.S. 312, 319 (1986). 
104 Thomas K. Landry, “Punishment” and the Eighth Amendment, 57 OHIO ST. L.J. 
1607, 1614 (1996).  
105 Whitley, 475 U.S. at 320 (announcing that the test to determine whether a prison 
official’s use of force violated the Eighth Amendment turns on “whether force was applied 
in a good faith effort to restore discipline or maliciously and sadistically for the very purpose 
of causing harm”) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), cert. 
denied sub nom. John v. Johnson, 414 U.S. 1033 (1973)).  
106 Whitley, 475 U.S. at 320. 
107 James J. Park, Redefining Eighth Amendment Punishments: A New Standard for 
Determining the Liability of Prison Officials for Failing to Protect Inmates from Serious 
Harm, 20 QUINNIPIAC L. REV. 407, 423 (2001). 
170 OREGON LAW REVIEW [Vol. 98, 151 
provides an excellent summary of how the lower courts struggled.108 
As Professor Glidden explains, the lower courts fluctuated between 
applying an objective standard (where the focus of the inquiry is the 
harm to the prisoner) and a subjective standard (where the central 
inquiry is the intent of the prison officials).109 Ultimately, Professor 
Glidden concludes, this tension resulted in the current Eighth 
Amendment test, which requires both an objective (a sufficiently 
serious condition) and subjective (deliberate indifference) showing by 
a prisoner plaintiff.110  
The Supreme Court confirmed in Wilson v. Seiter that this two-
pronged test applies in every case involving an Eighth Amendment 
challenge to prison conditions.111 In that case, Pearly L. Wilson, a man 
confined to the Hocking Correctional Facility (HCF) in Nelsonville, 
Ohio, alleged that an assortment of prison conditions—“overcrowding, 
excessive noise, insufficient locker storage space, inadequate heating 
and cooling, improper ventilation, unclean and inadequate restrooms, 
unsanitary dining facilities and food preparation, and housing with 
mentally and physically ill [prisoners]”—amounted to cruel and 
unusual punishment under the Eighth Amendment.112 The United 
States District Court for the Southern District of Ohio dismissed Mr. 
Wilson’s case at summary judgment, and the Sixth Circuit Court of 
Appeals affirmed that decision.113 The lower courts reached this 
decision largely because the Sixth Circuit had previously determined 
that Whitley’s obduracy and wantonness standard applied to prison 
conditions claims,114 and Mr. Wilson failed to create a dispute of fact 
as to whether Ohio prison officials demonstrated this subjective intent 
in imposing the prison conditions at issue.115 
Although the Supreme Court rejected the Sixth Circuit’s application 
of Whitley’s obduracy and wantonness requirement to cases 
challenging prison conditions, the Court made clear that some 
108 See Glidden, supra note 16, at 1820–21. 
109 See id. 
110 Id. at 1821. My focus here is on the subjective portion of that test in a particular 
instance (i.e., claims for injunctive relief against prison systems themselves), but Professor 
Glidden makes a compelling showing that the entire Eighth Amendment test should be 
reimagined to allow for more predictable and uniform outcomes. Id. 
111 See 501 U.S. 294, 299–300 (1991). 
112 Id. at 296. 
113 Wilson v. Seiter, 893 F.2d 861, 863, 867 (6th Cir. 1990), judgment vacated, 501 U.S. 
294 (1991). 
114 See Birrell v. Brown, 867 F.2d 956, 958 (6th Cir. 1989). 
115 Wilson, 893 F.2d at 863, 867. 
2020] Institutional Indifference 171
subjective showing is required in such cases because “Eighth 
Amendment claims based on official conduct that does not purport to 
be the penalty formally imposed for a crime require inquiry into state 
of mind.”116 Ultimately, the Court found “no significant distinction 
between claims challenging inadequate medical care and those alleging 
inadequate ‘conditions of confinement.’”117 Therefore, the Court 
concluded that Estelle’s deliberate indifference requirement should 
apply to all prison conditions cases.118 The Wilson Court, however, left 
for another day the question of what a prisoner-plaintiff must prove to 
show deliberate indifference.  
Almost twenty years after Estelle, the Supreme Court finally took up 
the question of what a prisoner-plaintiff is required to show in order to 
prove deliberate indifference in the context of an Eighth Amendment 
prison conditions claim. In Farmer v. Brennan, the Court held that 
establishing deliberate indifference requires proof that the prison 
official defendants subjectively knew of and disregarded a substantial 
risk of harm to the prisoner-plaintiff.119 Dee Farmer, a male-to-female 
transgender prisoner, was sentenced to federal prison at the age of 
eighteen for credit card fraud.120 Incarcerated by the Federal Bureau of 
Prisons (BOP), Ms. Farmer found herself confined to male prisons per 
BOP policy, despite that Ms. Farmer had been living as a woman for 
five years before her incarceration.121 More often than not, BOP 
officials confined Ms. Farmer to solitary confinement. In some 
instances, BOP officials placed Ms. Farmer in segregation for 
disciplinary violations; in others, the officials placed her in isolation for 
her own safety.122  
On March 9, 1989, over two years into her sentence, BOP officials 
transferred Ms. Farmer from the Federal Correctional Institution in 
Oxford, Wisconsin (“FCI-Oxford”), to the United States Penitentiary 
in Terre Haute, Indiana (“USP-Terre Haute”).123 FCI-Oxford is an all-
male, medium-security prison, and USP-Terre Haute is an all-male, 
116 Wilson, 501 U.S. at 302. 
117 Id. at 303. 
118 Id. 
119 511 U.S. 825, 837–38 (1994). 
120 Id. at 829. 
121 Jason D. Sanabria, Note, Farmer v. Brennan: Do Prisoners Have Any Rights Left 
Under the Eighth Amendment?, 16 WHITTIER L. REV. 1113, 1116 (1995). 
122 Id. at 1117. 
123 Farmer, 511 U.S. at 830. 
172 OREGON LAW REVIEW [Vol. 98, 151 
high-security facility with significantly more prisoners.124 Within 
weeks of being placed in the general population at USP-Terre Haute, 
another prisoner brutally raped and beat Ms. Farmer in her cell.125 Ms. 
Farmer, acting pro se, sued the BOP and several individual prison 
officials, requesting an injunction ordering the BOP to place her in a 
lower-security correctional facility and compensatory and punitive 
damages for the violation of her rights.126  
By the time Ms. Farmer’s case reached the Supreme Court, she was 
represented by counsel, who argued that the deliberate indifference test 
articulated by the Court in City of Canton v. Harris127 should apply to 
Ms. Farmer’s case.128 Canton involved the arrest of Geraldine Harris, 
a fifty-two-year-old mother of eight, by police officers in Canton, 
Ohio.129 During the course of the arrest, Mrs. Harris experienced a 
medical emergency, but the Canton police never provided Mrs. Harris 
any medical attention.130  
Mrs. Harris sued the City of Canton and several individual officials 
for violations of her rights under the Constitution and Ohio’s state laws, 
including a claim against the city for failing to provide her medical care 
while in police custody in violation of the Due Process Clause of the 
Fourteenth Amendment.131 The Canton Court held that a municipality 
124 Compare FCI Oxford, FED. BUREAU PRISONS, https://www.bop.gov/locations/ 
institutions/oxf/ [https://perma.cc/R4PK-JZKG] (last visited Oct. 11, 2019) (listing statistics 
for FCI Oxford), with USP Terre Haute, FED. BUREAU PRISONS, https://www.bop.gov/ 
locations/institutions/thp/ [https://perma.cc/468B-X4QM] (last visited Oct. 11, 2019) 
(listing statistics for USP-Terre Haute). 
125 Farmer, 511 U.S. at 830. 
126 Sanabria, supra note 121, at 1117–18. 
127 489 U.S. 378, 378 (1989). 
128 Farmer, 511 U.S. at 829 (citing Canton, 489 U.S. at 378). 
129 Canton, 489 U.S. at 381. On April 26, 1978, Canton police officers pulled Mrs. Harris 
over for speeding as she drove her daughter Bernadette to school. Harris v. Cmich, 798 F.2d 
1414, 1986 WL 17268, at *1 (6th Cir. 1986) (unpublished table opinion), judgment vacated 
sub nom. Canton, 489 U.S. 378. The facts of what happened during the traffic stop were 
heavily disputed at trial, with the officers claiming that Mrs. Harris refused to show them 
her driver’s license and Mrs. Harris testifying that the police verbally and physically 
mistreated her. Brief for Respondent at 1, City of Canton v. Harris, 489 U.S. 378 (1989) 
(No. 86-1088) 1988 WL 1026008 at *1. What is not disputed is that Mrs. Harris was 
arrested, placed in a patrol wagon, later found incoherent on the patrol wagon floor, and 
unable to remain upright at the police station. Canton, 489 U.S. at 381.  
130 Canton, 489 U.S. at 381. The Canton police released Mrs. Harris about an hour after 
she arrived at the police station and did not file any charges against her. Id. A nearby hospital 
admitted Mrs. Harris for a week to treat severe emotional ailments. Id. 
131 Because Mrs. Harris was not convicted of a crime at the time of the events on April 
26, 1978, her status as a pretrial detainee meant that her claim could not be asserted under 
the Eighth Amendment, which is preserved for only those who have been adjudicated guilty 
2020] Institutional Indifference 173
is liable when a municipal policy causes a constitutional violation and 
the policy “reflects deliberate indifference to the constitutional rights 
of its inhabitants.”132 Thus, in cases seeking to establish municipal 
liability, the Supreme Court defined deliberate indifference to include 
not only policies that disregard a subjectively known risk of 
constitutional violation but also policies that disregard an obvious risk 
of constitutional violation.133 Deficiencies in a policy may be “so 
obvious, and the inadequacy so likely to result in the violation of 
constitutional rights, that the policymakers of the city can reasonably 
be said to have been deliberately indifferent . . . .”134 This type of 
deliberate indifference—disregarding a self-evident risk—can be 
described as “objective deliberate indifference.”135 Thus, in the context 
of a claim against a municipality, “deliberate indifference” means that 
a municipal policy created an obvious risk of harm—and liability can 
be established through constructive notice regardless of whether any 
municipal official subjectively realized the risk.136  
Dee Farmer’s attorneys argued that Canton’s objective standard 
should apply to her claims once Ms. Farmer’s claims reached the 
Supreme Court, just five years after Canton.137 But the Court rejected 
this argument and instead created a subjective deliberate indifference 
standard for claims asserted under the Eighth Amendment.138 After 
Farmer, prison officials can be held liable only for disregarding 
of a crime and can therefore be said to be experiencing the “punishment” necessary to invoke 
the protections of the Eighth Amendment. See DeAnna Pratt Swearingen, Innocent Until 
Arrested?: Deliberate Indifference Toward Detainee’s Due-Process Rights, 62 ARK. L. 
REV. 101, 111 (2009) (“Pretrial detainees may not be punished prior to an adjudication of 
guilt in accordance with due process of law. Because of this, the Eighth Amendment’s 
prohibition of cruel and unusual punishment is inapplicable.”) (internal quotations and 
citations omitted). 
132 Canton, 489 U.S. at 392. Mrs. Harris’s claim against the city rested on a Monell 
theory of liability. In Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978), 
the Supreme Court held that a municipality cannot be held liable under 42 U.S.C. § 1983 
for the actions of its subordinates in respondeat superior but can be held liable when a 
municipal “policy or custom . . . inflicts the injury . . . .” 
133 Canton, 489 U.S. at 390. 
134 Id. 
135 Id. at 396 (O’Connor, J., concurring in part). Under this standard, “[w]here a § 1983 
plaintiff can establish that the facts available to city policymakers put them on actual or 
constructive notice that the particular omission is substantially certain to result in the 
violation of the constitutional rights of their citizens, the dictates of Monell are satisfied.” 
Id. (emphasis added). 
136 Farmer, 511 U.S. at 840–41; Canton, 489 U.S. at 390. 
137 Farmer, 511 U.S. at 840. 
138 Id. at 841. 
174 OREGON LAW REVIEW [Vol. 98, 151 
conditions or risks of which they are subjectively aware.139 In other 
words—and in contrast to the objective deliberate indifference standard 
for municipal entities—an individual who is subjectively unaware of 
an obvious risk is not deliberately indifferent.140 The Farmer Court 
recognized that its decision would result in “deliberate indifference” 
having one meaning in cases under the Eighth Amendment and a 
different meaning in municipal liability cases.141 This linguistic 
anomaly did not trouble the Court because “deliberate indifference” is 
merely a judicial term of art.142 
Why have a different deliberate indifference test in different 
contexts? Because, the Farmer Court explained, a court can inquire 
as to the subjective awareness of a person, but the subjective 
awareness of an inanimate organization is a contradiction in terms. 
“[C]onsiderable conceptual difficulty would attend any search for the 
subjective state of mind of a governmental entity, as distinct from that 
of a governmental official.”143 Despite recognizing the conceptual 
difficulty inherent in applying a subjective standard to a claim against 
an entity, the Farmer Court failed to adequately explain how the 
deliberate indifference standard it articulated could be applied to Eighth 
Amendment cases for injunctive relief. Such claims are necessarily 
claims asserted against entities,144 and Part II details why this is so. 
139 Id. 
140 Id. at 838. 
141 Id. at 840 (describing “deliberate indifference” as “a judicial gloss, appearing neither 
in the Constitution nor in a statute”). 
142 Id.  
143 Id. at 841. 
144 The Farmer Court labelled Ms. Farmer’s claims as Bivens claims. Id. at 830. Because 
42 U.S.C. § 1983 provides for a constitutional cause of action for damages against state and 
local officials only, any person seeking a remedy for the violation of her constitutional rights 
by a federal official must bring a “Bivens claim” in court. See Bivens v. Six Unknown 
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 411 (1971). Bivens claims are 
claims asserted against individuals for money damages. See Godfrey, supra note 57, at 932. 
But the Court also indicated that Ms. Farmer, at least initially, sought “an injunction barring 
future confinement in any penitentiary.” Farmer, 511 U.S. at 831. Federal prisoners 
asserting injunctive claims are asserting claims against an entity, either in reality or through 
the legal fiction created in Ex parte Young, 209 U.S. 123, 159–60 (1908),. See infra Part II. 
Yet, despite mentioning this injunctive request, the Farmer Court’s analysis remains 
focused on deliberate indifference of individuals and differentiates the Canton deliberate 
indifference standard by concluding it “is not an appropriate test for determining the liability 
of prison officials under the Eighth Amendment.” Farmer, 511 U.S. at 841 (emphasis 
added). 
2020] Institutional Indifference 175
II 
SUITS AGAINST PRISON SYSTEMS FOR INJUNCTIVE RELIEF 
Complicated immunity and remedial doctrines govern when an 
individual can sue the government or its officers for relief from 
constitutional rights violations.145 Prisoners seeking to file suit for 
unconstitutional prison conditions must consider these doctrines when 
determining who to sue and what type of relief to seek. Prisoners 
seeking prospective relief from unconstitutional prison conditions will 
generally sue two types of defendants.146 Where possible, the prisoners 
will sue the entity that confines them.147 For example, federal prisoners 
seeking relief from unconstitutional conditions in federal prisons will 
145 See generally Vicki C. Jackson, Suing the Federal Government: Sovereignty, 
Immunity, and Judicial Independence, 35 GEO. WASH. INT’L L. REV. 521, 552–72 (2003) 
(discussing the history of immunity, jurisdiction, and remedies that govern suits against the 
government). 
146 For purposes of this discussion, I concentrate on prisoners confined in public 
facilities, not those confined in private prisons. Prisoners confined in private prisons will 
sue the private prison company that subjects them to unconstitutional conditions, and 
prisoners provided treatment by private medical care providers will sue those providers. See, 
e.g., Davis v. Corr. Corp., No. CIV-13-1174-HE, 2014 WL 4716209, at *1 (W.D. Okla.
Sept. 22, 2014) (noting that prisoner-plaintiff sought injunctive relief against private prison 
corporation for denial of medical care); see also Swan v. Physician Health Partners, Inc., 
212 F. Supp. 3d 1000, 1009–10 (D. Colo. 2016) (allowing a prisoner-plaintiff’s claim 
against a private medical contractor to proceed). Private corporations that operate private 
prisons or provide services to prisoners are treated like city and county governments when 
sued for constitutional violations: they can be held liable for their policies or for acts taken 
pursuant to their policies that meet the Canton deliberate indifference standard. See, e.g., 
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583–85 (3d Cir. 2003) (holding that a 
policy to see all new admissions within seventy-two hours, with no provisions for prisoners 
with immediate medication needs, supported a deliberate indifference claim against 
corporate provider); Kruger v. Jenne, 164 F. Supp. 2d 1330, 1331 (S.D. Fla. 2000) (holding 
that an allegation that a private provider denied care as a result of a policy to refuse or delay 
treatment to save money stated a deliberate indifference claim against corporation); Hartman 
ex rel. Estate of Douglas v. Corr. Med. Servs., Inc., 960 F. Supp. 1577, 1582–83 (M.D. Fla. 
1996) (permitting a person with only a master’s degree and no professional licenses to have 
authority over mental health referrals and suicide precautions supported claim of a policy of 
deliberate indifference by private medical provider). Notably, while state prisoners confined 
to private prisons can sue for injunctive relief or damages, federal prisoners have no 
monetary relief available to them. See Minneci v. Pollard, 565 U.S. 118, 131 (2012) (no 
damages remedy available to prisoner seeking damages for constitutional violations by 
individuals employed by private prison contractor); Corr. Serv. Corp. v. Malesko, 534 U.S. 
61, 66 (2001) (no damages remedy available to prisoner seeking damages for constitutional 
violations by private prison corporation). 
147 See, e.g., Silverstein v. Fed. Bureau of Prisons, 704 F. Supp. 2d 1077, 1098–99 (D. 
Colo. 2010) (noting that prisoner-plaintiff sued Defendant BOP for injunctive relief related 
to his placement in solitary confinement for decades). I was a student-attorney representing 
Mr. Silverstein at the time the Amended Complaint at issue in this decision was filed. 
176 OREGON LAW REVIEW [Vol. 98, 151 
sue the Federal Bureau of Prisons.148 State prisoners confined to state 
institutions, however, are limited in their ability to sue the state or its 
agencies because of the immunity provided to the states by the Eleventh 
Amendment.149 Therefore, state prisoners seeking injunctive relief 
must sue an individual prison officer in his official capacity pursuant 
to the doctrine created by Ex parte Young. Sections II.A and II.B 
describe both types of suits. This Part concludes with Section II.C, 
which addresses suits against jails. Generally speaking, pretrial 
detainees or prisoners confined to local jails can sue the local entity that 
runs the jail under a Monell theory of liability,150 but, as is discussed 
below, much confusion surrounds what standard governs claims 
regarding prison conditions brought by those incarcerated in jails. 
A. Suing the Federal Bureau of Prisons 
Federal prisoners seeking relief from unconstitutional conditions 
have the distinct advantage of being able to sue the Federal Bureau of 
Prisons (BOP) itself.151 Indeed, failure to name the BOP as a defendant 
can lead to dismissal of a prisoner-plaintiff’s suit as moot once the BOP 
transfers the prisoner-plaintiff to a new institution.152 Indeed, at least 
148 Id. at 1086; see also Chapman v. Fed. Bureau of Prisons, 235 F. Supp. 3d 1066, 1068 
(S.D. Ind. 2017) (noting that a prisoner-plaintiff sued Defendant BOP for injunctive relief, 
requesting “constitutionally-adequate medical care wherever he is incarcerated by 
Defendant BOP.”). I am counsel-of-record for Mr. Chapman in this matter. 
149 U.S. CONST. amend. XI. 
150 See, e.g., Ford v. Cty. of Grand Traverse, 535 F.3d 483, 497 (6th Cir. 2008) (allowing 
a suit alleging deliberate indifference to serious medical needs against county that runs local 
jail); Hamm v. DeKalb Cty., 774 F.2d 1567, 1574 (11th Cir. 1985) (allowing a suit 
challenging constitutionality of conditions at the jail during plaintiff’s confinement against 
a county jail). 
151 See, e.g., Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1238 (10th Cir. 2005) 
(recognizing a distinction between claims against individual BOP officials in their official 
capacities and claims against the BOP itself); see also Jackson, supra note 145, at 567–68 
(noting that the Administrative Procedure Act allows for suits against the government for 
nonmonetary relief). 
152 See, e.g., Jordan v. Sosa, 654 F.3d 1012, 1033 (10th Cir. 2011). In Jordan, a prisoner-
plaintiff sued certain BOP officials for injunctive relief for constitutional violations that 
occurred at the United States Penitentiary-Administrative Maximum (ADX) in Florence, 
Colorado. Id. at 1015. Notably, Mr. Jordan sought an injunction enjoining the BOP officials 
from applying a national regulation prohibiting the use of BOP funds “to distribute or make 
available to a prisoner any commercially published information or material that is sexually 
explicit or features nudity.” Id. at 1016 (quoting 28 U.S.C. § 530C(b)(6)(D)). Criticizing 
Mr. Jordan for not naming the BOP itself (or its director) as a defendant, id. at 1018, the 
Tenth Circuit held that the BOP’s subsequent transfer of him from ADX to a different prison 
facility mooted his claim, despite that he had named prison officials in their official capacity, 
id. at 1029.  
2020] Institutional Indifference 177
one federal appeals court has encouraged prisoner-plaintiffs seeking 
declaratory or injunctive relief to “sue not only the individual prison 
officials, in their official capacity,153 who work at the particular facility 
at which they were housed at the time that the alleged unconstitutional 
conduct purportedly occurred, but also the BOP’s Director in his 
official capacity, and sometimes the BOP itself.”154 Failure to name the 
BOP can often result in the loss of a prisoner-plaintiff’s ability to have 
his claims adjudicated on their merits because the BOP has a well-
known practice of transferring prisoners in active litigation in order to 
avoid adjudication of prisoners’ claims.155 Judicial review of federal 
prison officials’ actions is further limited by the fact that federal 
prisoners are able to receive monetary compensation for the violation 
of their constitutional rights only in some circumstances.156 Thus, for 
153 Official capacity suits are suits wherein an individual government officer is named 
in his official capacity in order to effectively sue the state for some relief other than damages. 
See Kentucky v. Graham, 473 U.S. 159, 165 (1985). See discussion infra Section II.B for a 
more detailed explanation of this legal fiction. 
154 Jordan, 654 F.3d at 1029. Despite this encouragement, post-Jordan, assistant United 
States attorneys defending the BOP and its officials in suits often argue in motions to dismiss 
that complaints naming both the BOP and individual prison officials in their official capacity 
are redundant and that only the BOP need be named. See, e.g., Defendants’ Motion to 
Dismiss Official-Capacity Claims at 9, Ajaj v. Fed. Bureau of Prisons, 15-cv-0992-RBJ-
KLM, 2011 WL 902440 (D. Colo. Feb. 10, 2016) (citing Silverstein v. Fed. Bureau of 
Prisons, 704 F. Supp. 2d 1077, 1087 (D. Colo. 2010)) (arguing that individual defendants 
sued in their official capacities “are not proper Defendants for injunctive relief claims” and 
that naming both individuals and the BOP is “redundant, unnecessary, and potentially 
confusing”). 
155 Danielle C. Jefferis & Nicole B. Godfrey, Chapman v. Bureau of Prisons: Stopping 
the Venue Merry-Go-Round, 96 DENV. L. REV. ONLINE 9, 11–12 (2018) (describing BOP’s 
ability to move prisoners from one federal district to another all over the country to avoid 
adjudication), https://www.denverlawreview.org/dlr-online-article/2018/8/2/chapman-v-
bureau-of-prisons-stopping-the-venue-merry-go-roun.html?rq=godfrey [https://perma.cc/ 
89KN-J3NC]; see also Godfrey, supra note 57, at 958 (“[I]n cases for injunctive relief that 
present important constitutional questions, the BOP’s modus operandi is to move the 
prisoner-plaintiff from the jurisdiction in which the case was filed to another judicial district 
in an attempt to moot or otherwise throw unique procedural wrenches into the prisoner’s 
claim.”). 
156 Godfrey, supra note 57, at 959 (criticizing federal courts for determining that the 
availability of injunctive relief counsels against providing federal prisoners a Bivens remedy 
for the violation of their rights). 
In other words, the BOP can and does manipulate litigation in order to avoid 
judicial decisions on the merits of any constitutional claim. Without access to 
Bivens claims, prisoner-plaintiffs may find themselves with no judicial relief for 
violations of their constitutional rights. For example, if a prisoner files suit for 
violation of his religious rights and the BOP immediately takes steps to moot the 
injunctive claim while the court determines that the prisoner’s damages claims are 
not allowed under Bivens, the prisoner-plaintiff is left with no judicial relief 
whatsoever for the harms he suffered. Indeed, such a result incentivizes, rather than 
178 OREGON LAW REVIEW [Vol. 98, 151 
federal prisoners seeking relief from unconstitutional conditions of 
confinement, particularly when those unconstitutional conditions may 
often continue at any facility wherein the prisoner is confined by the 
BOP, the prisoner’s best choice of defendant is the BOP itself.  
B. Suing State Prison Systems: The Legal Fiction Created by 
Ex Parte Young and Its Progeny 
State prisoners, unlike their federal counterparts, are unable to sue 
the prison system itself because of the protections afforded to the states 
by the Eleventh Amendment.157 The Eleventh Amendment to the 
United States Constitution provides that “[t]he Judicial power of the 
United States shall not be construed to extend to any suit in law or 
equity, commenced or prosecuted against one of the United States by 
Citizens of another State, or by Citizens or Subjects of any Foreign 
State.”158 
On its face, the Eleventh Amendment seems to bar suits by private 
actors against a state.159 However, Supreme Court jurisprudence 
interpreting the Eleventh Amendment has never been very 
consistent,160 and “the text of the Eleventh Amendment ha[s] held very 
little sway”161 in the development of the doctrine. Indeed, within two 
deters, the unconstitutional conduct of federal prison officials who are able to act 
unconstitutionally and are perpetually insulated from liability by manufacturing 
mootness, either by instituting policy changes or transferring prisoners.  
Id. at 958–59. 
157 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (citing Ex parte 
Young, 209 U.S. 123, 159–60 (1908)). 
158 U.S. CONST. amend. XI. 
159 Although the text of the amendment appears to limit suits only by “citizens of another 
state,” Hans v. Louisiana, 134 U.S. 1, 13 (1890) (quoting U.S. CONST. amend. XI) (emphasis 
added), the Supreme Court has clearly held that the amendment also applies to suits against 
a state brought by that state’s own citizens. Id. at 21. See discussion infra notes 162–64 and 
accompanying text discussing the idea that the Eleventh Amendment bars suits by private 
actors against a state remains facially valid, albeit subject to the legal fiction created by Ex 
parte Young, 201 U.S. 123 (1908). A state’s immunity is not limited to the state itself; 
agencies of a state enjoy the Eleventh Amendment’s protections too. See, e.g., Ellis v. Univ. 
of Kan. Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1988). 
160 Indeed, even “[t]he history of the Eleventh Amendment is deeply contested, but the 
version the Court favors (and perhaps is correct) is that it was adopted in a ‘shock of surprise’ 
at the Court’s own 1793 decision in Chisholm v. Georgia.” Barry Friedman, The Story of Ex 
parte Young: Once Controversial, Now Canon, in FEDERAL COURT STORIES 247, 257 
(Vicki C. Jackson & Judith Resnik eds., 2010) (citing Chisholm v. Georgia, 2 U.S. (2 Dall.) 
419 (1793)). The concept of the “shock of surprise” of Chisholm is further explored in 
Richard H. Fallon, Jr. et al., HART & WECHSLER’S THE FEDERAL COURTS AND THE 
FEDERAL SYSTEM, 978–87 (5th ed. 2003). 
161 Friedman, supra note 160, at 257. 
2020] Institutional Indifference 179
decades of the ratification of the Eleventh Amendment, the Supreme 
Court held “that state officials could still be sued in the federal courts 
to enjoin unconstitutional state action.”162 
Therefore, state prisoners are not without recourse, in large part 
because of the doctrine created by the Supreme Court in Ex parte 
Young.163 The Ex parte Young case grew out of a battle that played out 
in Minnesota state and federal courts between local farmers, railroad 
barons, the state legislature, and the state attorney general over 
legislation meant to regulate railroad rates.164 
On May 31, 1907, the railroads filed nine shareholder derivative 
suits “together in the District of Minnesota challenging the 
162 Id. 
163 See generally 209 U.S. at 159–60.  
164 Friedman, supra note 160, at 259–64. Although the Minnesota battle is what 
ultimately landed in front of the Supreme Court, similar battles were playing out in states 
across the country at the same time. Id. at 261. To fully understand the complicated 
procedural history and posture of Ex parte Young, one must understand the political, 
economic, and historical background of “this great Lochner-era jurisdictional battle.” Id. at 
248 (referring to Lochner v. New York, 198 U.S. 45 (1905), wherein the Supreme Court 
“struck down the effort by New York to limit the work week to sixty hours as a violation of 
freedom of contract”) (quoting Bruce Ackerman, 2 WE THE PEOPLE: TRANSFORMATIONS 
257 (1998)). A full recounting of this history is beyond the scope of this Article, but it may 
be helpful to understand the economic, political, and social forces at work during this period 
in American history.  
The Lochner-era generally refers to the period of American legal history lasting from 
1897 to 1937 when the Supreme Court struck down laws viewed to be interfering with 
economic liberty and private contract rights protected by the Due Process Clause of the 
Fourteenth Amendment. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND 
POLICIES 663–73 (6th ed. 2019). In the years preceding and immediately following Lochner, 
the country faced rapid economic, political, and social changes as it transitioned from the 
Reconstruction era to the Gilded Age. Friedman, supra note 160, at 248. Economically, the 
Panic of 1873 caused an economic depression. Id. at 249. Politically, the presidential 
election of 1876 was “hotly contested, among widespread claims of voter fraud,” leading to 
a deal wherein the Democratic candidate Samuel Tilden would cede the presidency to 
Republican candidate Rutherford B. Hayes in exchange for the withdrawal of troops from 
the South. Id. at 250. Socially, the industrial revolution brought enhanced mobility and 
communication through the construction of railroads, allowing the American economy to 
shift from agrarian to manufacturing as large-scale corporations took the place of local 
merchants. Id. (“In 1870 the average firm had eight people; by 1900 over 1500 firms 
employed more than 500.”).  
This rapidly changing society saw the nation’s workers and farmers organizing into 
unions and voluntary associations meant to give political voice to economic and societal ills 
experienced by their members. Id. at 250–51. These organizations took aim at the railroad 
barons, seeking to regulate the rates charged by the railroad companies for shipping. Id. at 
260–63. The railroad industrialists fought back, seeking refuge in the federal courts, which 
they saw as less prone to the localism and bias inherent in the state courts. Id. at 252. One 
of these battles took place in Minnesota, challenging Minnesota’s 1907 rate law legislation. 
Id. at 260–61. That battle grew into the federalism standoff of Ex parte Young. Id.  
180 OREGON LAW REVIEW [Vol. 98, 151 
constitutionality of various Minnesota rate laws.”165 Deemed “one of 
the most gigantic lawsuits ever filed in the courts of this country,”166 
Judge William H. Lochren drew the case and immediately issued a 
temporary restraining order blocking the state’s rates the same day.167 
Edward T. Young, the Minnesota state attorney general, “quickly 
moved to dismiss the actions on the grounds that they were collusive, 
and an impermissible suit against the State of Minnesota given the 
Eleventh Amendment.”168 Judge Lochren denied Attorney General 
Young’s request for dismissal and set the matter for a preliminary 
injunction hearing.169 
After the September 20, 1907, preliminary injunction hearing, Judge 
Lochren ruled against Attorney General Young, holding that the 
lawyer, as a state official, could be sued for injunctive relief.170 As to 
the Eleventh Amendment issues, Judge Lochren found that an 
injunction had been issued against state officers to preclude a state from 
enforcing an unconstitutional law “in so many cases that it seems to me 
it does not now require argument to sustain that position.”171 Judge 
Lochren therefore enjoined Minnesota—through Attorney General 
Young—from putting its latest commodity rates into effect.172 
Undeterred, Attorney General Young ignored the “injunction and filed 
suit under the rate law against the Northern Pacific in the Ramsey 
County state district court.”173 Predictably, Judge Lochren held 
Attorney General Young in contempt, who, through his own attorney, 
filed a motion for leave to file a petition for a writ of habeas corpus in 
the Supreme Court on October 25, 1907.174 The Supreme Court granted 
165 Friedman, supra note 160, at 261.  
166 Id. (quoting MINNEAPOLIS TRIB., June 1, 1907, at 1). 
167 Importantly, Judge Lochren was “appointed by the conservative Democrat Grover 
Cleveland, with the warm support of J.J. Hill, the president of the Great Northern Railroad.” 
Id. at 261–62.  
168 Id. at 262. 
169 Id.  
170 Id. at 262–63. 
171 Perkins v. N. Pac. Ry. Co., 155 F. 445, 448 (D. Minn. 1907). Judge Lochren’s point 
was well founded—“the issue of injunctions against state officials was plainly a hot one 
throughout the country”—and state officials gave speeches throughout the country 
“complaining about threats to state sovereignty from centralizing federal authority.” 
Friedman, supra note 160, at 263 (discussing various speeches across the country addressing 
this issue). 
172 Perkins, 155 F. at 455–56.  
173 Friedman, supra note 160, at 264. 
174 Id. at 264. 
2020] Institutional Indifference 181
the motion and set a hearing for Ex parte Young on December 2, 
1907.175 
The Supreme Court upheld the injunction issued by Judge Lochren 
and the accompanying contempt citation against Attorney General 
Young.176 To address Attorney General Young’s Eleventh 
Amendment arguments, the Supreme Court “held that state officials 
could be sued to restrain enforcement of unconstitutional laws.”177 In 
reaching this holding, Justice Rufus W. Peckham, writing for the 8–1 
majority, created what has since been termed the legal fiction that 
allows suits for injunctive relief from unconstitutional state conduct to 
proceed in federal court: 
The answer to all [the claims regarding the Eleventh Amendment] is 
the same as made in every case where an official claims to be acting 
under the authority of the state. The act to be enforced is alleged to 
be unconstitutional; and if it be so, the use of the name of the state to 
enforce an unconstitutional act to the injury of complainants is a 
proceeding without the authority of, and one which does not affect, 
the state in its sovereign or governmental capacity. It is simply an 
illegal act upon the part of a state official in attempting, by the use of 
the name of the state, to enforce a legislative enactment which is void 
because unconstitutional. If the act which the state attorney general 
seeks to enforce be a violation of the Federal Constitution, the officer, 
in proceeding under such enactment, comes into conflict with the 
superior authority of that Constitution, and he is in that case stripped 
of his official or representative character and is subjected in his 
person to the consequences of his individual conduct.178 
A plain reading of this language may lead one to conclude that Ex 
parte Young merely carved out an exception to Eleventh Amendment 
immunity for those instances where a state law or regulation clearly 
violated the Constitution and, therefore, allowed suit against the actor 
responsible for carrying out that law within the state. But the import of 
Ex parte Young is much more expansive than that, as the Supreme 
Court itself has recognized. In Edelman v. Jordan,179 the Court “relied 
on the Young fiction to permit suits against state officials for any sort 
of forward-looking relief, holding that the Eleventh Amendment 
primarily was a bar to suits seeking money damages from state 
treasuries.”180 
175 Id. 
176 Id. 
177 Id. at 266. 
178 Ex parte Young, 209 U.S. 123, 159–60 (1908). 
179 415 U.S. 651 (1974).  
180 Friedman, supra note 160, at 273. 
182 OREGON LAW REVIEW [Vol. 98, 151 
Thus, it is now a standard canon of federal jurisdiction that the Ex 
parte Young doctrine permits plaintiffs to bring suit against state 
officials in their official capacity for prospective injunctive relief for 
constitutional violations.181 An understanding of the distinction 
between official and individual capacity suits is critical to 
understanding how the Ex parte Young doctrine is practically 
implemented. While an individual capacity suit is a suit against the 
person named, an official capacity suit is, in fact, a suit against the state 
entity itself.182 Therefore, official capacity suits proceed under a legal 
fiction in that the suits in all respects other than name are to be treated 
as a suit against the entity, which the named official represents in his 
official role.183 In other words, a suit against a state official in his 
official capacity “is not a suit against the official personally, for the real 
party in interest is the entity.”184 The fiction created by these suits, 
then, is that a claim asserted against a state official in his official 
capacity is somehow “different in substance than a suit against the state 
itself.”185 
Professor Kenneth C. Davis has aptly summarized the legal fiction 
created by the Ex parte Young doctrine as follows: 
181 See, e.g., Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 911 (10th Cir. 2008); 
Hill v. Kemp, 478 F.3d 1236, 1255–56 (10th Cir. 2007); Guzman-Vargas v. Calderon, 672 
F. Supp. 2d 273, 295–296 (D. P.R. 2009).  
182 See Kentucky v. Graham, 473 U.S. 159, 165 (1985). 
183 Id. at 166. See also Edelman, 415 U.S. at 663 (discussing that although a state may 
not be a named party to an action, the suit may nonetheless not be barred by the Eleventh 
Amendment). As Professor Friedman aptly points out, this fiction was the exact quandary 
that Attorney General Young highlighted in his brief opposing the railroad baron’s request 
for a preliminary injunction:  
Counsel for the plaintiffs contend . . . that these actions are not against the state, 
and yet at the same time they argue with equal vehemence that by means of these 
actions they have prevented the state from initiating any proceedings to enforce its 
laws. . . . If the state is a party, how can the suits be maintained in the face of the 
Eleventh Amendment? If the state is not a party no objection can reasonably be 
offered by these suitors to any steps it may take to enforce its laws . . . . It would 
be a waste of time and would be almost discourteous to this court for me to argue 
the proposition, which is now so well settled, that a suit against the officers of a 
state to either compel them to perform discretionary duties or to prevent them from 
performing such duties is a suit against the state. 
Friedman, supra note 160, at 262 (quoting RICHARD C. CORTNER, THE IRON HORSE AND 
THE CONSTITUTION: THE RAILROADS AND THE TRANSFORMATION OF THE FOURTEENTH 
AMENDMENT 163–64 (1993)). 
184 Graham, 473 U.S. at 166 (emphasis in original). 
185 Hill, 478 F.3d at 1256 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 
89, 105 (1984)) (proposing that Ex parte Young is a legal fiction).  
2020] Institutional Indifference 183
You may get relief against the sovereign if, but only if, you falsely 
pretend that you are not asking for relief against the sovereign. The 
judges often will falsely pretend that they are not giving you relief 
against the sovereign, even though you know and they know, and 
they know that you know, that the relief is against the sovereign.186 
Although much criticism has been levied about the lack of principle 
embodied in the Supreme Court’s decisions applying the Ex parte 
Young doctrine,187 the fact remains that its legal fiction allows state 
prisoners to sue prison systems for injunctive relief for unconstitutional 
conditions.188 Thus, prisoners asserting claims for injunctive relief are 
suing a prison official in name only—the suit is, in fact, against the 
prison system itself as the “real party in interest”189 should any 
injunction issue. For our purposes, then, the constitutional question 
presented by Eighth Amendment claims for injunctive relief 
challenging unconstitutional prison conditions is, again, how a 
prisoner-plaintiff can prove deliberate indifference against the 
institution itself. 
C. Suing Local Jails 
Although jails may sometimes hold some prisoners after sentencing, 
most individuals confined to local jails are pretrial detainees.190 
186 Kenneth C. Davis, Suing the Government by Falsely Pretending to Sue an Officer, 
29 U. CHI. L. REV. 435, 435 (1962). 
187 See, e.g., Eridania Pérez-Jaquez, Note, Constitutionalizing State Sovereign 
Immunity: Ex Parte Young and the Conservative Wing’s Attempt to Restore Federalism and 
Empower States, 51 RUTGERS L. REV. 229, 270–73 (1998) (arguing that the Supreme 
Court’s decision in Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) undermined the 
constitutional value of Ex parte Young); Akhil Reed Amar, Of Sovereignty and Federalism, 
96 YALE L.J. 1425, 1480 (1987) (describing the Court’s Eleventh Amendment jurisprudence 
as incoherent, leaving litigants “with . . . an ad hoc mishmash of Young and Edelman, of full 
remedy and state sovereignty, of supremacy and immunity, of law and lawlessness”); 
William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow 
Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against 
Jurisdiction, 35 STAN. L. REV. 1033, 1044 (1983) (describing the Ex parte Young case and 
its progeny as “jerry-built” and “complicated” by “use of fictions”). 
188 Cf. John Harrison, Ex Parte Young, 60 STAN. L. REV. 989, 994 (2008) (quoting Idaho 
v. Coeur d’Alene Tribe, 521 U.S. 261, 269 (1997)) (“The Supreme Court today says that Ex
parte Young represents an exception to principles of sovereign immunity ‘for certain suits 
seeking declaratory and injunctive relief against state officers in their individual 
capacities.’”); David L. Shapiro, Comment, Wrong Turns: The Eleventh Amendment and 
the Pennhurst Case, 98 HARV. L. REV. 61, 82 (1984) (arguing against classifying the Ex 
parte Young doctrines as a legal fiction).  
189 Graham, 473 U.S. at 166. 
190 See, e.g., SONYA TAFOYA, PRETRIAL DETENTION AND JAIL CAPACITY IN 
CALIFORNIA 1 (July 2015), https://www.ppic.org/content/pubs/report/R_715STR.pdf 
[https://perma.cc/UW97-EQCL]. 
184 OREGON LAW REVIEW [Vol. 98, 151 
Because pretrial detainees cannot be punished under the Eighth 
Amendment, conditions claims brought by incarcerated persons with 
pretrial-detainee status are, in theory, governed by the Due Process 
Clause.191 When a person transitions from pretrial detainee status to 
convicted-prisoner status is not completely clear.192 Oftentimes federal 
courts interpret claims brought by persons of either status using the 
same constitutional standards.193 For example, the Eighth Amendment 
should not apply to pretrial detainees at all because detainees cannot be 
punished,194 but until recently, most courts held that detainees’ due 
process claims involving medical care and safety were governed by the 
Eighth Amendment’s deliberate indifference standard.195 After the 
191 See Bell v. Wolfish, 441 U.S. 520, 536–37 (1979) (The government may detain a 
person pretrial and “may subject him to the restrictions and conditions of the detention 
facility so long as those conditions and restrictions do not amount to punishment, or 
otherwise violate the Constitution.”); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 
2004) (“The determination of whether a condition of pretrial detention amounts to 
punishment turns on whether the condition is imposed for the purpose of punishment or 
whether it is incident to some legitimate government purpose.”).  
192 The time period between when a person is convicted but not yet sentenced appears 
to be the most contested. Compare Tilmon v. Prator, 368 F.3d 521, 523 (5th Cir. 2004) (“In 
our view, the adjudication of guilt, i.e., the conviction, and not the pronouncement of 
sentence, is the dispositive fact with regard to punishment in accordance with due process.”), 
and Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990) (“The critical juncture 
is conviction . . . at which point the state acquires the power to punish and the Eighth 
Amendment is implicated.”), with Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009) 
(stating that the right to punish does not begin until after sentencing), and Fuentes v. 
Wagner, 206 F.3d 335, 341 (3d Cir. 2000) (stating that the loss of liberty does not begin 
until sentencing), and Benjamin v. Malcolm, 646 F. Supp. 1550, 1556 (S.D.N.Y. 1986) 
(stating that those convicted but not yet sentenced should be treated as detainees because 
the sentence imposed may be suspended or something other than a prison term). Generally 
speaking, courts uniformly agree that the line between arrestee and pretrial detainee is much 
clearer: the probable cause hearing draws the distinction, and constitutional violations 
occurring prior to the probable cause theory are governed by the Fourth Amendment’s 
objective reasonableness test. See, e.g., Lopez v. City of Chicago, 464 F.3d 711, 718–20 
(7th Cir. 2006).  
193 See, e.g., Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009), overruled by sub nom. 
Darnell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017); Martinez v. Beggs, 563 F.3d 1082, 
1088 (10th Cir. 2009), cert. denied, 130 S. Ct. 259 (2009); Ford v. Cty. of Grand Traverse, 
535 F.3d 483, 495 (6th Cir. 2008); Hartsfield v. Colburn, 491 F.3d 394, 396 (8th Cir. 2007), 
cert. denied, 128 S. Ct. 1745 (2008); Young v. City of Mt. Rainier, 238 F.3d 567, 576 (4th 
Cir. 2001); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996); Salazar v. City of 
Chi., 940 F.2d 233, 237–38 (7th Cir. 1991); Boring v. Kozakiewicz, 833 F.2d 468, 471–73 
(3d Cir. 1987). 
194 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Wolfish, 441 U.S. at 
535. 
195 See, e.g., Caiozzo, 581 F.3d at 72; Martinez, 563 F.3d at 1088; Ford, 535 F.3d at 495; 
Hartsfield, 491 F.3d at 396; Young, 238 F.3d at 576; Cottrell, 85 F.3d at 1490; Salazar, 940 
F.2d at 237–38; Boring, 833 F.2d at 471–73.  
2020] Institutional Indifference 185
Supreme Court’s 2015 decision in Kingsley v. Hendrickson,196 
however, courts are slowly determining that “there is no basis” to 
require detainees to prove “the subjective intent requirement for 
deliberate indifference claims” because such a requirement stems from 
the Eighth Amendment’s focus on punishment.197 Should the trends 
continue, pretrial detainees bringing claims for injunctive relief 
regarding prison conditions will no longer require proof of a subjective 
intent, whether the defendants are individuals or institutions. 
The question remains, though, how prisoners confined to county 
jails can bring Eighth Amendment conditions challenges for injunctive 
relief. Because jails are run by local municipal entities, individuals 
confined in jails can bring claims against the municipality itself under 
a Monell theory of liability.198 But Monell will not help those prisoners 
seeking an injunction for unconstitutional conduct where the 
unconstitutional conduct cannot be tied to an official custom, policy, or 
practice of the municipality.199 Nor will Monell provide relief in those 
instances where the prisoner can prove no underlying constitutional 
violation by an individual actor.200 Therefore, prisoners confined in 
city and county jails who wish to bring claims for injunctive relief 
against the institutions that confine them must do so in the same manner 
as their state counterparts—through official capacity suits against 
individual actors under the doctrine created by Ex parte Young. These 
prisoners also will face the same analytical conundrum as their state 
counterparts—how might they prove institutional intent sufficient to 
satisfy the subjective prong of current Eighth Amendment doctrine? I 
answer this question in the next part. 
196 135 S. Ct. 2466 (2015). 
197 Darnell, 849 F.3d at 34–35. A comprehensive discussion of Kingsley and its impact 
on prisoners’ rights litigation can be found in Margo Schlanger, The Constitutional Law of 
Incarceration, Reconfigured, 103 CORNELL L. REV. 357, 402–24 (2018). Notably, Professor 
Schlanger makes a persuasive argument that Kingsley provides support for abandoning the 
deliberate indifference standard as a whole because nothing in the amendment’s text requires 
the subjective intent that is the focus of the current test. Id. at 425–33. 
198 Matthew J. Cron et al., Municipal Liability: Strategies, Critiques, and a Pathway 
Toward Effective Enforcement of Civil Rights, 91 DENV. U. L. REV. 583, 585–86 (2014). 
199 See, e.g., Szabla v. City of Brooklyn Park, 486 F.3d 385, 391 (8th Cir. 2007) (finding 
facially valid policy insufficient to prove municipal liability). 
200 Cron et al., supra note 198, at 586. 
186 OREGON LAW REVIEW [Vol. 98, 151 
III 
INSTITUTIONAL INDIFFERENCE TO PRISON CONDITIONS 
Because Eighth Amendment conditions of confinement claims for 
injunctive relief are claims against the institutions themselves, current 
Eighth Amendment doctrine makes little sense in the context of these 
claims. I am certainly not the first scholar to levy criticism against 
current Eighth Amendment doctrine in the context of prison conditions 
claims, but my focus on the identity of the defendant (either real or 
fictional) in cases for injunctive relief is unique. In this part, I am 
focused on finding a workable application of current Eighth 
Amendment doctrine in the context of cases for injunctive relief against 
institutions. In searching for this solution, I do not mean to suggest that 
the current Eighth Amendment doctrine is consistent with the 
Amendment’s text and history. Nor do I suggest that the doctrine is 
normatively sound in the context of the practical realities of 
punishment in the United States. Instead, I seek to offer a practical 
solution for the application of current doctrine in the narrow context of 
claims for injunctive relief against prison systems.  
A. Application of Current Doctrine in Claims Against Institutions 
The current Eighth Amendment test requires a prisoner prove both 
an objective and subjective element.201 First, the prisoner must show 
he is subject to an objectively serious prison condition.202 Second, in 
order for a defendant to be held liable under the Eighth Amendment, 
the prisoner must demonstrate that the defendant is deliberately 
indifferent to that serious prison condition.203 To prove this subjective 
element, a prisoner must make two showings. First, he must show that 
the defendant knew that the prison condition at issue posed a substantial 
risk of serious harm to the prisoner (the knowledge component).204 
Then, after demonstrating knowledge, the prisoner must show that the 
defendant disregarded the “risk by failing to take reasonable measures 
to abate it” (the disregard component).205  
In an injunctive case, the prisoner-plaintiff can prove the objective 
prong in much the same way that he would prove it in a case for 
damages against an individual prison official. Because the inquiry into 
201 Farmer v. Brennan, 511 U.S. 825, 834 (1994). 
202 Id. 
203 Id. 
204 Id. at 847. 
205 Id. 
2020] Institutional Indifference 187
the seriousness of the harm is an objective one, the answer is not tied 
to the identity of the defendant.  
By contrast, the analysis of the subjective prong does depend on the 
identity of the defendant. In other words, “the knowledge and intent in 
question is of whomever the plaintiff has sued.”206 The knowledge 
component is particularly focused on the identity of the defendant 
because, in order to prove this component, a prisoner must demonstrate 
that the defendant subjectively knew of the existence of the challenged 
condition and its dangerousness.207 To prove the disregard component, 
a prisoner-plaintiff must show that the defendant’s actions taken 
subsequent to acquiring the demonstrated knowledge disregarded the 
harm created or risk of harm posed by the condition. In this way, the 
proof necessary for the disregard piece of the deliberate indifference 
test is also not so different in an injunctive case against an institution 
than in a damages case against an individual. In either case, a failure to 
act to rectify the harm after learning of it amounts to deliberate 
indifference. If the defendant—individual or institution—fails to react 
to the knowledge acquired, the defendant is liable. 
Therefore, the focus of our inquiry is on how a prisoner-plaintiff 
might demonstrate institutional knowledge in those cases where he is 
seeking an injunction (i.e., in those cases where he has sued the prison 
system itself, either through a direct suit or the legal fiction created by 
the Supreme Court in Ex parte Young). In the next Section, I examine 
scholarly critiques of current Eighth Amendment doctrine. Then, I 
propose how courts might apply the current Eighth Amendment 
doctrine in these types of suits. 
B. Criticisms of Current Eighth Amendment Doctrine 
Scholars have been levying criticisms against the Supreme Court’s 
Eighth Amendment doctrine for decades.208 Most of these criticisms 
can be classified into three broad areas of critique: (1) ignorance of the 
historical realities of the amendment’s purpose and meaning, (2) an 
improper understanding of what should be considered punishment 
206 Glidden, supra note 16, at 1836 n.141. 
207 Farmer, 511 U.S. at 847. 
208 See Braatz, supra note 44; Dolovich, supra note 16; Schlanger, supra note 23; 
Glidden, supra note 16. See also John F. Stinneford, The Original Meaning of “Unusual”: 
The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739, 1753–54 
(2008) (“[T]he evolving standards of decency test also suffers from a deeper theoretical 
problem, in that it appears to make the rights of criminal defendants dependent upon public 
opinion.”). 
188 OREGON LAW REVIEW [Vol. 98, 151 
under the plain text of the Amendment, and (3) inconsistent 
applications of the doctrine because it is tethered to public opinion or 
societal views.  
First, some scholars have persuasively argued that the Supreme 
Court’s interpretation of the Eighth Amendment reflects a 
misunderstanding of the contextual history of the amendment in light 
of the history of punishments in England and America and the “changes 
these punishments underwent in the early years of the republic.”209 As 
Part I outlines above, penal reform in the early republic consisted of a 
process of rapid “experimentation with new approaches to punishment” 
in order both to grapple with a swiftly expanding nation and changing 
society and to distance the young nation from its colonial heritage.210 
These scholars argue that the Supreme Court’s recognition that the 
Eighth Amendment “must draw its meaning from the evolving 
standards of decency that mark the progress of a maturing society”211 
is the correct conceptual understanding of the amendment’s 
application.212 However, the scholars critique the Court for its failure 
to embrace the conclusion that the evolving standards concept 
necessarily means that the amendment must be viewed as examining a 
country’s progress toward becoming more civilized.213 In these 
scholars’ view, the cruelty proscribed by the amendment is ever 
expansive as the country changes and deems certain previously 
accepted punishments as cruel.214 This focus on society’s ever-
evolving view of what is cruel shifts the Eighth Amendment standard 
to an objective one, focused on what society has determined as cruel at 
any given point, rather than whether a particular defendant intended his 
actions to be cruelly punitive.215  
209 Braatz, supra note 44, at 426. 
210 Id. at 427, 439.  
211 Trop v. Dulles, 356 U.S. 86, 101 (1958). 
212 Braatz, supra note 44, at 462; Dolovich, supra note 16, at 883 n.3 (quoting Furman 
v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting)) (“The standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard 
itself remains the same, but its applicability must change as the basic mores of society 
change.”). 
213 Braatz, supra note 44, at 464–67. 
214 Id. at 471.  
215 See, e.g., Schlanger, supra note 23, at 428 (quoting Trop, 356 U.S. at 101; Rummel 
v. Estelle, 445 U.S. 263, 274 (1980)) (“There is fully developed Eighth Amendment
jurisprudence elaborating on the meaning of ‘cruel and unusual,’ with respect to sentencing. 
In that jurisprudence, the Court has implemented the constitutional ban on cruelty by testing 
state-inflicted punishments against the ‘evolving standards of decency that mark the 
2020] Institutional Indifference 189
Second, some scholars have criticized, particularly in the context of 
prison conditions claims, the Supreme Court’s undue focus on what 
qualifies as punishment rather than what is cruel.216 In particular, 
Professor Sharon Dolovich provides a compelling critique of Justice 
Scalia’s individualistic conception of punishment as articulated in 
Wilson and expounded upon by Justice Souter in Farmer.217 As 
explained by Professor Dolovich, 
Prison officials who create the conditions under which a prisoner will 
live are by their actions administering a state punishment, whatever 
their mental state regarding the conditions they create. In the most 
concrete sense, whatever conditions a prisoner is subjected to while 
incarcerated, whatever treatment he receives from the officials 
charged with administering his sentence, is the punishment the state 
has imposed. For this reason, all conditions to which an offender is 
subjected at the hands of state officials over the course of his 
incarceration are appropriately open to Eighth Amendment scrutiny. 
Understood in this light, the requirement that the punishment be 
“deliberate[ly]” imposed in order “to chastise or deter” does not 
disappear . . . . That these penalties can take years to administer and 
their precise shape determined only over time by the acts and 
omissions of prison officials who may know nothing of the original 
crime does not make the offender’s conditions of confinement any 
less the terms of her punishment. They simply reflect the particular 
nature of incarceration as a penal form, which in these ways is 
fundamentally different from more discrete penalties like fines or 
capital punishment.218 
In many ways, Professor Dolovich’s critique carries forward the 
historical assessment described above—the method of punishment 
imposed by the American criminal justice system has evolved such that 
imprisonment within the American penal complex is the punishment 
that cannot be cruel nor unusual under the Eighth Amendment. 
A final critique of Eighth Amendment doctrine stems from the 
methodological and theoretical problems associated with tethering the 
test for cruelty to the evolving standards of decency.219 As Professor 
John Stinneford has aptly pointed out, individual rights are typically 
viewed as mechanisms by which the law can “protect unpopular 
individuals or groups when public opinion becomes enflamed against 
progress of a maturing society.’ The Court has insisted on use of ‘objective factors to the 
maximum possible extent.’”). 
216 Dolovich, supra note 16, at 890. 
217 Id. at 895–97. 
218 Id. at 899–900. 
219 See, e.g., Stinneford, supra note 208, at 1753–54. 
190 OREGON LAW REVIEW [Vol. 98, 151 
them.”220 By contrast, the Eighth Amendment’s protections only 
“come into play after public opinion has already turned in favor of, not 
against, criminal defendants.”221 In a similar vein, Professor Brittany 
Glidden has argued that both the objective and the subjective prong of 
the Eighth Amendment inquiry are subject to inconsistent application 
because of the deference to prison officials and the difficulties courts 
face when trying to determine an individual’s intent.222 By espousing 
clear deference to prison officials, Professor Glidden asserts that the 
federal “courts have effectively turned the objective prong on its head: 
it now hinges on the subjective motivations of the people it is intended 
to monitor.”223 Thus, because courts are often struggling to apply the 
evolving standards of decency test by determining society’s tolerance 
of that which may be cruel, the application of the Eighth Amendment 
has become increasingly unpredictable.224 This uncertainty is 
particularly profound in the context of prison conditions, where the 
inquiry into the evolving standards of decency is coupled with the 
inquiry into prison officials’ subjective mindset. 
In articulating the above criticisms of Eighth Amendment doctrine, 
scholars have also provided proposals of how to rewrite the test to be 
applied in Eighth Amendment cases challenging prison conditions.225 
I find little to criticize in these proposals and find the reasons for them 
justified. I write separately to propose a specific test for analysis of the 
subjective prong of an Eighth Amendment claim for injunctive relief 
only because I remain pessimistic that the Supreme Court will, in the 
near future, reverse course on its focus on punishment and its required 
intent. To that end, my proposed solution, as outlined below, provides 
concrete parameters upon which a court can consider an Eighth 
Amendment conditions claim within the confines of current doctrine. 
Although far from perfect, these proposed sources of proof provide 
necessary clarity as to how a prisoner-plaintiff can prove institutional 
indifference. This solution may prove to be merely a stopgap until the 
220 Id. at 1754. 
221 Id. 
222 Glidden, supra note 16, at 1817. 
223 Id. 
224 Id. at 1828 (“Separating the assessment of whether a condition is cruel from the 
reason underlying it is effectively impossible because the determination of what is a ‘basic 
human need’ will often be influenced by one’s perceptions about why the condition exists.”). 
225 See id. at 1817 (arguing that inferred intent should be made explicit in the Eighth 
Amendment analysis); Dolovich, supra note 16, at 899 (“[A]ll the conditions to which an 
offender is subjected at the hands of state officials over the course of his incarceration are 
appropriately open to Eighth Amendment scrutiny.”). 
2020] Institutional Indifference 191
Court is primed to address the deeper doctrinal problems with the 
current Eighth Amendment jurisprudence. Nevertheless, it will equip 
prisoner litigants with concrete sources of proof by which they may 
obtain necessary relief from unduly harsh and cruel conditions.  
C. Proposal for Application of Current Doctrine to Claims 
Against Institutions 
Since Farmer, federal courts examining prison conditions claims 
seeking injunctive relief for Eighth Amendment violations often gloss 
over the proof required to demonstrate deliberate indifference. Instead, 
courts tend to focus on whether the defendant named in his or her 
official capacity has the ability to correct the violation, not whether the 
named defendant has the knowledge or intent sufficient to demonstrate 
deliberate indifference.226 But the question remains what type of proof 
a prisoner-plaintiff should seek to demonstrate the institutional 
knowledge necessary to prove his deliberate indifference claim. 
I submit that there are three categories of proof courts should 
consider when analyzing whether an institutional defendant has the 
knowledge necessary under the subjective prong. First, the prison 
system’s policies and procedures, both written and informal, that relate 
to the complained-of condition are an important source of proof. For 
example, in a case challenging a prison system’s treatment of a 
prisoner-plaintiff’s Type 1 diabetes, the institution’s knowledge of the 
types of treatment and community standards of care can be 
demonstrated by its policies related to the provision of medical care for 
persons with diabetes.227 A failure to protect case wherein a prisoner-
226 See, e.g., Koehl v. Dahlseim, 85 F.3d 86, 89 (2d Cir. 1996) (reversing dismissal of 
injunctive claim against prison superintendent because superintendent “had overall 
responsibility to ensure that prisoners’ basic needs were met” and prisoner demonstrated 
that medical personal knew of his eyeglass prescription but failed to respond to his request 
for replacement eyeglasses); Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995) (finding 
injunctive claim against sheriff and warden responsible for county jail moot but determining 
if the claim were not moot, defendants must have known about the jail’s crowded state and 
could be “ordered to take appropriate steps” to correct the overcrowding), abrogated on 
other grounds by Haley v. Gross, 86 F.3d 630 (7th Cir. 1996); Woods v. Carey, 2006 WL 
548190, at *5 (E.D. Cal. Mar. 6, 2006) (allowing injunctive claim to proceed against warden 
despite lack of personal involvement in the violation); Torrence v. Pelkey, 164 F. Supp. 2d 
264, 273 (D. Conn. 2001) (allowing injunctive claim to proceed despite lack of personal 
involvement of warden in action relating to plaintiff’s medical care).  
227 I submit that placing too much emphasis on this type of proof could cause prison 
systems to develop lackluster policies that fail to fully demonstrate the scope of institutional 
knowledge on the subject matter at issue. I think this pitfall could be overcome, however, 
by the third type of proof—the prison system’s response to the lawsuit itself and proof of 
well-established community knowledge of the harms associated with particular conditions. 
192 OREGON LAW REVIEW [Vol. 98, 151 
plaintiff is continuously placed in unsafe situations and brutally 
attacked by fellow prisoners because of his status as a gang dropout 
provides another example of how this type of proof may be used to 
demonstrate institutional knowledge. In this type of case, prison 
policies demonstrating the prison system’s separation procedures and 
gang violence prevention efforts would be relevant to demonstrating 
the institution’s knowledge of the risks of harm inherent to certain 
prisoners (e.g., policies related to where and how to house gang 
dropouts would be evidence of knowledge of the risks of harm inherent 
to leaving a gang).228 
The second type of proof a court should consider when examining a 
prisoner-plaintiff’s claim of deliberate institutional indifference is the 
prison system’s response to a prisoner’s grievances. The Prison 
Litigation Reform Act (PLRA) requires prisoners to exhaust their 
administrative remedies prior to filing any suit challenging prison 
conditions in federal court.229 The purpose of the PLRA was to “reduce 
the quantity and improve the quality of prisoner suits,”230 in part by 
giving prison systems a chance to resolve unconstitutional conditions 
prior to being sued in federal court.231 Thus, a prisoner’s grievances 
necessarily provide the institution knowledge of the substance of the 
Eighth Amendment claim—knowledge of the substance of the harm 
alleged. A prison system’s failure to rectify that harm prior to suit 
demonstrates deliberate indifference to a known harm.232 
Finally, and similarly, a federal court can infer institutional 
knowledge of the harm or risk of harm from both the prison system’s 
responses to the lawsuit itself and from the well-established community 
correctional standards that are associated with the challenged 
condition. As to the inference of institutional knowledge by the 
In the example of the prisoner-plaintiff with Type 1 diabetes, I submit that if the prison 
policies failed to properly capture well-established medical standards for the treatment of 
persons with Type 1 diabetes, then the policies’ silence demonstrates the institution’s 
deliberate indifference.  
228 In the same way that the lack of policy could demonstrate indifference in the diabetes 
case, a lack of policy in violence prevention areas would demonstrate the prison system’s 
disregard of the common correctional practices and norms across the country. 
229 42 U.S.C. § 1997e(a) (2012). 
230 Porter v. Nussle, 534 U.S. 516, 524 (2002). 
231 Woodford v. Ngo, 548 U.S. 81, 93 (2006) (quoting Porter, 534 U.S. at 525). 
232 See, e.g., Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001) (allowing 
evidence of plaintiff’s grievances after transfer to demonstrate that “the prison system has 
continued to be deliberately indifferent to plaintiff’s medical needs.”).  
2020] Institutional Indifference 193
substance of the lawsuit itself, the Farmer Court itself recognized this 
as a source of proof of indifference: 
If, for example, the evidence before a district court established that 
[a prisoner] faces an objectively intolerable risk of serious injury, the 
defendants could not plausibly persist in claiming lack of awareness, 
any more than prison officials who state during the litigation that they 
will not take reasonable measures to abate an intolerable risk of 
which they are aware could claim to be subjectively blameless for 
purposes of the Eighth Amendment, and in deciding whether [a 
prisoner] has established a continuing constitutional violation a 
district court may take such developments into account. At the same 
time, even prison officials who had a subjectively culpable state of 
mind when the lawsuit was filed could prevent issuance of an 
injunction by proving, during the litigation, that they were no longer 
unreasonably disregarding an objectively intolerable risk of harm that 
they would not revert to their obduracy upon cessation of 
litigation.233 
Additionally, if a prisoner-plaintiff is able to acquire proof that well-
established correctional community norms and standards place 
defendant institutions on notice of the harms related to particular 
conditions, then federal courts should consider inaction in light of those 
norms and standards as evidence of deliberate indifference. Many 
organizations have articulated such norms for prison systems, and most 
prison systems strive for accreditation from these groups. Such 
organizations include the National Institute of Corrections, which 
develops trainings for prison agencies,234 and the American 
Correctional Association (ACA), which accredits the nation’s prisons 
233 Farmer v. Brennan, 511 U.S. 825, 846 n.9 (1994). Despite this recognition that the 
lawsuit itself can form the basis of proof for the knowledge component, there are a couple 
of problems with this footnote in Farmer. First, the use of the word “obduracy” seems to 
revert to the confusion between whether the Whitley obduracy and wantonness standard 
applied to conditions claims as well as excessive force claims. See supra Section I.B.3. It 
also seems to encourage prison systems to allow lawsuits to be filed and litigated, only to 
reverse course at the end to moot the claims and avoid adjudication on the merits. See 
Michele C. Nielsen, Mute and Moot: How Class Action Mootness Procedure Silences 
Inmates, 63 UCLA L. REV. 760, 775 (2016) (“The prison context . . . renders [prisoners] 
vulnerable to such unilateral, involuntary mootness. [Prisoner] locations, treatment, and 
classifications exist at the whims of prisons. Thus, if prisons can simply re-shuffle 
[prisoners] through transfers and reclassify prisoners through implementing measures . . . in 
order to avoid or strategically manipulate litigation, [prisoners] are distinct kinds of 
plaintiffs who require additional protections from defendants who attempt to render their 
claims moot.”). 
234 History, NAT’L INST. CORRECTIONS, http://nicic.gov/history-of-nic [https://perma. 
cc/3QW4-MKWG] (last visited Oct. 11, 2019).  
194 OREGON LAW REVIEW [Vol. 98, 151 
and jails and has done so since 1870.235 The ACA’s accreditation 
standards are meant “to prescribe the best practices that could be 
achieved in the United States, while being both realistic and 
practical.”236 
These three sources of proof, alone or in combination (depending on 
the particular factual circumstances of the claim at issue), should be 
sufficient to establish institutional knowledge of the harms at issue in 
any prison conditions lawsuit. The continuance of the harms or risk of 
harms throughout the course of the lawsuit demonstrates the 
institution’s disregard of that knowledge.237 Although it may be that 
these types of proof are already the sort of evidence courts look to when 
considering Eighth Amendment injunctive claims,238 courts should be 
explicit in defining what types of evidence are sufficient to demonstrate 
institutional intent. Such an explicit definition of the types of proof 
required will help address some of the criticisms of current Eighth 
Amendment doctrine. 
CONCLUSION 
Ascertaining institutional intent has been rightly criticized as 
imprecise, inaccurate, and arbitrary.239 But if the Eighth Amendment 
is to afford meaningful relief to prisoner-plaintiffs in the context of 
injunctive claims against institutions under the current doctrine, we 
must strive to find coherent parameters around which institutional 
indifference can be ascertained. Allowing prisoner-plaintiffs to use the 
three sources of proof described above to show institutional knowledge 
of harms associated with certain conditions will create a uniform 
standard that courts can apply in Eighth Amendment claims for relief 
235 About Us, AM. CORRECTIONAL ASS’N, https://www.aca.org/ACA_Prod_ 
IMIS/ACA_Member/Standards___Accreditation/About_Us/ACA_Member/Standards_and
_Accreditation/SAC_AboutUs.aspx?hkey=bdf577fe-be9e-4c22-aa60-dc30dfa3adcb 
[https://perma.cc/PU2Y-2QBP] (last visited Oct. 11, 2019). 
236 Id. 
237 This is not to say that a prisoner can bring an Eighth Amendment prison conditions 
claim without some good-faith basis that the prison system knows of and is disregarding the 
risk of harm to him at the time he files the lawsuit. My point is merely that the existence of 
the lawsuit and the defendant’s failure to correct the challenged condition allow the prisoner 
to prove the disregard component by pointing to the litigation itself at the time of trial. It is 
unlikely this will be the only piece of evidence the prisoner has available to prove his claim 
at trial, but it will certainly be a critical source of proof.  
238 See generally Glidden, supra note 16, at 1833–37 (discussing the knowledge and 
intent requirements for punishment under the Eighth Amendment). 
239 See Alice Ristroph, State Intentions and the Law of Punishment, 98 J. CRIM. L. & 
CRIMINOLOGY 1353, 1357–58 (2008). 
2020] Institutional Indifference 195
from unconstitutional prison conditions. Such uniformity will allow 
prisoner-plaintiffs to hold prison systems accountable for imposing 
cruel conditions in prisons and jails. 
196 OREGON LAW REVIEW [Vol. 98, 151