Has Anything Changed?
An Analysis of Federal
Custodial Litigation
Cases Post Kingsley
v. Hendrickson
Christine Tartaro
1
and Geldy Nunez
2
Abstract
The Supreme Court set a standard of deliberate indifference for correctional
conditions of confinement cases and have historically required proof of staff
members’state-of-mind. The Kingsley v. Hendrickson decision signaled a shift
from that subjective requirement when the court applied a less onerous
objective standard in a case involving excessive force against a pretrial
detainee. The question is how the Federal Appeals Courts would interpret
Kingsley? Our findings indicate that the 12 courts differ in their application of
the objective and subjective standards for conditions of confinement cases,
including those for suicides of pretrial detainees.
Keywords
suicide litigation, jails, Section 1983
Introduction
Suicide is the leading cause of death in local jails, accounting for 24% to 35%
of yearly jail fatalities from 2000 through 2019. In 2019, 1,200 deaths
1
Stockton University, Galloway, NJ, USA
2
University of Central Florida, Orlando, FL, USA
Corresponding Author:
Christine Tartaro, Stockton University School of Social & Behavioral Sciences, 101 Vera King
Farris Drive, Galloway, NJ 08205, USA.
Email: Christine.Tartaro@Stockton.edu
Article
The Prison Journal
2023, Vol. 103(4) 427–447
© 2023 SAGE Publications
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00328855231188440
journals.sagepub.com/home/tpj
occurring inside local jails were ruled suicides, an increase from 903 deaths
by suicide in 2000 (Carson, 2021). There are obvious moral reasons for cor-
rections personnel to make every effort to prevent suicides. State and federal
courts have also made it clear that sworn and civilian law enforcement and
corrections staff have a legal obligation to take steps to prevent the suicides
of individuals who are in custody.
The family of pretrial detainees who die by suicide, or the detainees themselves
if they survive the suicide attempt, can seek legal remedies in both state and federal
courts. Plaintiffs usually make the argument that the suicidal individual was denied
proper medical care, or the facility staff failed to properly protect the individual. In
state court, plaintiffs can file a tort claim with the hope of receiving monetary com-
pensation for damages. State court cases for custodial suicides usually involve
claims of negligence (Wallace & Roberson, 2000). Federal court cases concerning
suicides in custody are included in Title 42, Section 1983 of the U.S. Code. These
cases frequently referred to as “Section 1983,”address conditions of confinement
inside lockups, jails, and prisons (Magun, 2017).
Families of individuals who commitsuicide in jail quickly learn that prevail-
ing in federal court on a Section 1983 case is a daunting task (Palacios et al.,
2022; Tartaro, 2005, 2015, 2019). The courts have held that plaintiffs are
required to demonstrate that the correctional and/or medical staff were deliber-
ately indifferent to the incarcerated individual’s needs. The courts often treat
deliberate indifference as having two components. First, there is the objective
component. Here, the plaintiffs must demonstrate that the staff conduct or
the conditions of the facility posed a substantial risk of serious harm. The
second component is the subjective element, and this requires plaintiffs to
provide evidence that the correctional staff was aware of the risk and con-
sciously and recklessly disregarded it (Estelle v. Gamble, 1976; Nguyen,
2021). This subjective component requires the plaintiff to provide evidence
about the defendants’state of mind. To prevail with the deliberate indifference
standard, plaintiffs must go beyond establishing negligence to show that the
denial of medical care or failure to protect was a conscious decision.
In 2015, the Supreme Court made a ruling in a use-of-force case involving a
pretrial detainee, prompting speculation that the lower courts might jettison the sub-
jective prong as a requirement for establishing deliberate indifference in conditions
of confinement cases. When faced with the question of whether corrections officers
used excessive force against a pretrial detainee in Kingsley v. Hendrickson (2015),
the Court required plaintiffs to meet only an objective standard, which is something
that the Ninth Circuit Court later referred to as “somethingakintorecklessdisre-
gard”(Castro v. City of Los Angeles, 2016). When the ruling was announced, it
was unclear how the twelve Federal Courts of Appeals would interpret Kingsley
and apply it to other cases (Levinson, 2017; Magun, 2017; Shapiro, 2016;
428 The Prison Journal 103(4)
