29-B-2. What to do if Treatment is Denied or Delayed
The above Subsection discussed situations in which a prisoner claims that the medical care he received is inadequate. This Subsection instead focuses on your rights when the treatment you need has been deliberately (purposely) denied or delayed.56 Although courts do not like second-guessing doctors' decisions,57 a prison official who denies or delays treatment knowing that you need that treatment might be violating your constitutional right to be free of "cruel and unusual punishment" under the Eighth Amendment.58 A court that finds this deliberate denial or delay will step in to help you. Not every delay in medical care is a violation of the Constitution.
A prison official only violates the Eighth Amendment when two requirements are met.59 The first requirement is that the deprivation of medical care is "sufficiently serious." The second requirement is that the prison official must have acted with a culpable (bad) state of mind and ignored your health needs on purpose.60 To meet this standard you must show that you have actually been deprived of adequate medical care, and that the lack of treatment has caused you harm, or will cause you harm in the future.61 If care has been denied, the court will look at whether "a reasonable doctor or patient would find [it] important and worthy of comment," whether the condition has "significant affects" on your daily activities, and whether it causes "chronic and substantial pain."62 In cases where treatment has been delayed or interrupted, the question of how serious the situation is focuses on the impact of the delay and not on the main medical condition alone.63 The second requirement for an Eighth Amendment violation is that the prison official acted with "deliberate indifference" to your medical or mental health needs.64 These requirements are discussed in more detail below.
(a) You Must Satisfy the Deliberate Indifference Standard
The Supreme Court has decided that a prison official shows deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety."65 For example, a prisoner might submit evidence that prison officials "refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs."66
A prison official can be deliberately indifferent by:
(1) taking action (doing something), or
(2) refusing to act (not doing something).67 An example of an act showing deliberate indifference might be knowingly stopping hormone treatments for a prisoner with Gender Identity Disorder. An example of a deliberate omission might be refusing to provide essential medication68 or refusing to treat a prisoner's cavity.69
Although the deliberate indifference standard has developed in the context of serious medical care, it also applies to medically necessary treatment for mental illnesses.70 Deliberate indifference to the serious mental health needs of a prisoner violates the Eighth Amendment just as much as deliberate indifference to physical medical needs.71
Many deliberate indifference claims about inadequate prison mental health care argue that the facility's mental health staff is too small to meet prisoners' needs or that the staff members are unqualified.72 Several courts have concluded that the lack of an on-site psychiatrist in a large prison is unconstitutional.73 The failure to train correctional staff to work with prisoners with mental illness can also constitute deliberate indifference.74
Among the deficiencies in prison mental health care that courts have held actionable are the lack of or inadequate mental health screening on intake,75 the failure to follow up with prisoners who have known or suspected mental disorders,76 the failure to hospitalize prisoners whose conditions cannot adequately be treated in prison,77 gross departures from professional standards in treatment,78 and the failure to separate prisoners with severe mental illness from those without mental illness.79 Mixing prisoners with mental illness with those who do not have mental illnesses might violate the rights of both groups.80 Courts have also held that housing prisoners with mental illness under conditions of extreme isolation is unconstitutional.81 Another recurring situation is stopping psychiatric medications without reason, often with disastrous results.82
In a landmark decision in 2011, Brown v. Plata, the Supreme Court held that the mental health care provided in California prisons was inadequate and violated the Eighth Amendment.83 However, the Supreme Court did not consider whether any particular instance of delay or deficiency in medical treatment would itself violate the Constitution.84 Instead, the Court looked at the system-wide problems that as a whole subjected prisoners to "substantial risk of serious harm."85 Regardless, the elements considered by the Court included similar factors such as not enough staff, not enough space for the staff to perform their jobs, delays in treatment, and "unsafe and unsanitary living conditions that hamper effective delivery of medical care and mental health care."86
It is important to remember that the deliberate indifference standard applies to a significant denial or delay87 of adequate medical care. If you feel that you have been denied mental health treatment, or if you feel that it has been unnecessarily delayed, and you wish to claim deliberate indifference, you must:
(1) state facts that are sufficient to allege a serious medical need for which medical care has not been provided; and
(2) assert that a prison official must have been aware of the need for medical care, or at least of facts which might have led the official to believe there was a need for medical care.88
(i) You Must Show Serious Medical Need
The first part of your deliberate indifference claim must include facts that show you had a serious medical need for which you did not receive treatment. A medical need is "serious" when there is a substantial risk that you will suffer serious harm if you do not receive adequate treatment.89 Courts have also defined a "serious medical need" as one that a doctor has diagnosed as requiring treatment or one that is so obvious that a non-doctor could easily recognize the need.90 For example, where a prisoner has attempted suicide, the court has found a serious medical need.91
(ii) You Must Show Actual Knowledge of Your Serious Medical Need
For the second part of your deliberate indifference claim, you must show that prison officials actually knew you needed mental health care but still failed to treat you.92 In Farmer v. Brennan, the Supreme Court explained a prison official "knows" of a risk when he is not only aware of facts that would lead to the conclusion that the prisoner faces a substantial risk of serious harm but also actually comes to that conclusion.93 In other words, this part of the deliberate indifference test is subjective (from the point of view of that particular prison official); he must actually believe you will suffer some serious harm before a court will find he had knowledge of the risk.94 But, if the risk is so obvious, a jury can assume the prison official knew of the risk. For example, the Farmer Court noted that if a plaintiff shows the risk of prisoner attacks was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it," that could be enough to show actual knowledge of the risk.95
(b) What Does Not Count as Deliberate Indifference?
Courts will refuse to find deliberate indifference in some situations. The deliberate indifference standard is meant to address "unnecessary and wanton infliction of pain."96 Acts...
