Journal of Criminal Law and Criminology
Volume 112
Issue 1 Winter

Article 3

Winter 2022

Prison Medical Deaths and Qualified Immunity
Andrea Craig Armstrong

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Andrea Craig Armstrong, Prison Medical Deaths and Qualified Immunity, 112 J. CRIM. L. & CRIMINOLOGY
79 (2022).

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0091-4169/22/11201-0079
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY
Copyright © 2022 by Andrea Craig Armstrong

Vol. 112, No. 1
Printed in U.S.A.

PRISON MEDICAL DEATHS AND
QUALIFIED IMMUNITY
ANDREA CRAIG ARMSTRONG*
The defense of qualified immunity for claims seeking monetary damages
for constitutionally inadequate medical care for people who are incarcerated
is misguided. According to the U.S. Department of Justice, medical illness is
the leading cause of death of people incarcerated in prisons and jails across
the United States. Qualified immunity in these cases limits accountability for
carceral actors, thereby limiting incentives for improvements in the delivery
of constitutionally adequate medical care. The qualified immunity defense
also compounds other existing barriers, such as higher subjective intent
standards and the Prison Litigation Reform Act, to asserting legal
accountability of prison and jail administrators. In addition, the defense is
not appropriate because medical care decisions by carceral actors are
fundamentally different than traditional qualified immunity cases.
Traditional qualified immunity cases usually involve discretionary decisions
that are one-off, emergency, binary choices made by a single actor or unit of
actors. In contrast, medical decisions in carceral settings are often serial,
ongoing, and usually involve multiple decision makers, sometimes acting
beyond their area of expertise. These significant differences between medical
decisions in carceral settings and traditional qualified immunity decisions
illustrate the practical difficulties for incarcerated plaintiffs and their
families in holding prisons accountable for violating the U.S. Constitution.
Recent developments refining the doctrine may lessen the negative impact of
the defense on these civil rights claims, but they also do not address the core
disconnect between the rationales justifying qualified immunity and its
application in cases of severe injury or death from inadequate carceral
healthcare.

* Professor of Law, Loyola University New Orleans, College of Law. Yale (J.D.);
Princeton (M.P.A). Sincere thanks to Gautami Bamba and Grace Bronson for their research
assistance for this essay. In addition, many thanks to the law students at Northwestern Pritzker
School of Law for their hard work and dedication in organizing this journal’s online
symposium on qualified immunity, and more specifically to Nick Bottcher, William
D’Angelo, and Jill Doherty for their thoughtful comments and suggestions on this essay.

79

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INTRODUCTION .............................................................................. 80
I. MEDICALLY-RELATED DEATHS IN CARCERAL
SPACES ................................................................................... 82
A. Incarcerated Healthcare .................................................... 83
B. Standards for Incarcerated Healthcare Claims .................. 89
II. APPLYING QUALIFIED IMMUNITY TO WRONGFUL
MEDICAL DEATHS AND SERIOUS MEDICAL
NEEDS ..................................................................................... 93
A. Qualified Immunity Applied to Wrongful Death for
Illness ................................................................................ 96
III. QUALIFIED IMMUNITY IN DISTRESS ................................. 102
CONCLUSION ................................................................................. 104

INTRODUCTION
Glenn Ford was released from death row in March 2014 after 29 years
of wrongful conviction.1 He only had fifteen months of freedom before his
death in June 2015.2 One month after his release, doctors diagnosed Mr. Ford
with terminal cancer, a disease which he believed he developed while in
prison and which went undiagnosed until he was able to obtain healthcare as
a free man.3 Mr. Ford spent much of his freedom after release undergoing
radiation and chemotherapy, but his cancer was simply too advanced for
successful treatment. Before his death, Mr. Ford filed a lawsuit against the
warden and medical providers at Louisiana State Penitentiary, claiming

1

Complaint at 2, Ford v. Caddo Par. Dist. Att’y’s Off., No. 15-cv-00544 (W.D. La. Mar.
9, 2015), ECF No.1. The author is the executrix of the estate of Glenn Ford, and in that
capacity is the substitute plaintiff in lawsuits originally filed by Mr. Ford addressing his
wrongful prosecution, Order Granting Motion to Substitute Party at 1, Ford v. Caddo Par. Dist.
Att’y’s Off., No. 15-cv-00544 (W.D. La. Mar. 9, 2015), ECF No. 83, and the conditions of his
confinement, including medical care, Order Substituting Plaintiff, Ford v. Cain, No. 15-cv00136 (M.D. La. Sept. 9, 2015), ECF No. 84. All opinions in this essay are solely those of the
author and not attributable to the estate.
2
Mark Berman, Innocent Man Who Spent 30 Years on Death Row Died Hours Before
Supreme Court Justices Cited Him, WASH. POST (June 29, 2015), https://www.washington
post.com/news/post-nation/wp/2015/06/29/innocent-man-who-spent-30-years-on-louisianasdeath-row-died-shortly-before-supreme-court-mentioned-him/ [https://perma.cc/P8HX-ZS
2W].
3
Complaint at 2, 3, Ford v. Cain, No. 15-cv-00136, (M.D. La. Mar. 9, 2015), ECF No. 1.

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inadequate medical healthcare.4 Defendants answered his complaint by
arguing, among other things, that their actions were “protected by qualified
immunity.”5 Glenn Ford died at home surrounded by friends—his body
decimated by cancer and a shell of his former robust physical self.
Criticism of the qualified immunity doctrine often focuses on how it
shields government actors, especially those acting in bad faith, from legal
liability for harms that occur during performance of their official duties.6 This
Article argues that for incarcerated people, the qualified immunity doctrine
compounds other barriers to asserting legal accountability of prison and jail
administrators. These barriers are particularly high in cases alleging
inadequate medical care, including deaths due to inadequate medical care
while incarcerated. In these cases, not only do incarcerated people and their
families face higher and more stringent standards for proving inadequate
medical care, but they must also survive qualified immunity standards to win
their lawsuits against prison officials.
This Article examines qualified immunity within the context of serious
medical illness and deaths in prisons and jails, as medical illnesses are the
leading cause of deaths behind bars.7 Part I discusses deaths in prison due to
medical illness, including the applicable standards for allegations of
constitutionally inadequate medical care. In short, plaintiffs must prove that
prison officials acted with “deliberate indifference” to an incarcerated
person’s serious medical needs to prove constitutionally inadequate medical
care. Plaintiffs must also prove that the medical care violated law “clearly
established” at the time of the violation to overcome a qualified immunity
defense. Part II analyzes the application of qualified immunity to claims of
death and inadequate healthcare and the difficulties in establishing when

4

Id. at 3.
Answer on Behalf of Dr. Thomas Demars and Dr. John D. Sparks with Jury Demand at
1, Ford v. Cain, No. 15-cv-00136 (M.D. La. June 21, 2016), ECF No. 110.
6
See Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 66 (2017). For
general background on the ways that qualified immunity doctrine fails to achieve the policy
goals articulated by the U.S. Supreme Court, see Joanna C. Schwartz, The Case
Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797, 1803–14 (2018).
7
E. ANN CARSON, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., MORTALITY IN STATE AND
FEDERAL PRISONS 2001–2018—STATISTICAL TABLES 2 (2021), https://bjs.ojp.gov/content/pub
/pdf/msfp0118st.pdf [https://perma.cc/JL4Y-7D5Y] [hereinafter MORTALITY IN STATE AND
FEDERAL PRISONS]; E. ANN CARSON, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., MORTALITY
IN LOCAL JAILS 2001–2018—STATISTICAL TABLES 6 tbl.1 (2021), https://bjs.ojp.gov/content/
pub/pdf/mlj0018st.pdf [https://perma.cc/JL4Y-7D5Y] [hereinafter MORTALITY IN LOCAL
JAILS 2001–2018] (listing number of deaths per year in 2000 and 2008–2018).
5

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medical decisions violate clearly established law. Part III focuses on cases
limiting the scope of qualified immunity and their implications for medicallyrelated deaths behind bars.
I. MEDICALLY-RELATED DEATHS IN CARCERAL SPACES
The leading cause of death in carceral spaces (including jails and
prisons) is medical illness.8 According to the Bureau of Justice Statistics,
from 2001 to 2018, 86,173 people died nationwide in jails and federal and
state prisons.9 The vast majority of these deaths are due to “natural causes,”
such as deaths due to illnesses including “heart disease, cancer, liver disease,
and AIDS-related deaths.”10 In state prisons, 87% of deaths were due to
illness; in federal prisons, 90%.11 In local jails, approximately half of all
deaths of incarcerated people were due to illness.12 In Louisiana, where
Glenn Ford was wrongfully sentenced to death row, there were at least 786
deaths in prisons, jails, and detention centers 2015–2019, of which 86% were
due to illness.13 Of those deaths related to medical illness, 42% were due to
heart disease and 20% were due to cancer, which appears generally consistent
with national studies indicating heart disease as a leading medical cause of

8
MORTALITY IN STATE AND FEDERAL PRISONS, supra note 7, at 1; MORTALITY IN LOCAL
JAILS, supra note 7, at 6 tbl.1.
9
National death data was compiled from the following three resources: MORTALITY IN
STATE AND FEDERAL PRISONS, supra note 7, at 1 (reporting 67,874 deaths in federal and state
prisons); MORTALITY IN LOCAL JAILS, supra note 7, at 6 tbl.1 (reporting a total of 11,106 deaths
from 2008–2018); MARGARET NOONAN, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST.,
MORTALITY IN LOCAL JAILS 2000–2007, 7 tbl.8 (2010), https://bjs.ojp.gov/content/pub/
pdf/mlj07.pdf [https://perma.cc/8CZX-Q9R7] (listing total number of deaths 2000–2007; for
the years 2001–2007, 7,193 people died in custody in jails). Thus, the total number of deaths
in jails 2001–2018 is 18,299.
10
MORTALITY IN STATE AND FEDERAL PRISONS, supra note 7, at 1.
11
See id. at 2.
12
See MORTALITY IN LOCAL JAILS 2001–2018, supra note 7, at 6 tbl.1 (noting the average
percentage of deaths due to illness is 49% from 2008–2018); NOONAN, supra note 9, at 7 tbl.8
(noting the average percentage of deaths due to illness is 52% from 2001–2007).
13
See ANDREA ARMSTRONG, LOUISIANA DEATHS BEHIND BARS 2015–2019 19 (2021),
https://www.incarcerationtransparency.org/wp-content/uploads/2021/06/LA-Death-BehindBars-Report-Final-June-2021.pdf [https://perma.cc/TR7J-6QYS].

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death in jails, state and federal prisons.14 Cancer is the leading cause of death
for medical deaths nationwide in state and federal prisons.15
However, describing these deaths as due to “natural causes” obscures
the carceral health providers’ role in detecting, diagnosing and treating these
diseases. In Louisiana, less than half of medically-related deaths (47%) were
due to an illness or condition diagnosed prior to incarceration.16 For the
remaining 53%, prison and jail administrators indicated that the illness
leading to death was not due to a pre-existing condition.17 Indeed, 59% of
all cancer deaths of incarcerated people and 52% of all heart deaths in
Louisiana carceral settings were initially diagnosed by prison and jail
healthcare systems.18 Illnesses leading to death, other than cancer and heart
disease, were similarly less likely to be due to a pre-existing condition,
including illnesses involving the brain, respiratory systems, and deaths due
to sepsis.19 Miscellaneous deaths, described as “all other,” were also less
likely to be due to a pre-existing condition, and this category includes deaths
due to surgical complications (hernias in particular), gastric ulcers,
Alzheimer’s, and ketoacidosis, among others.20 Thus, for more than half of
illnesses leading to deaths in prisons and jails in Louisiana, carceral
healthcare providers were the sole source for diagnosis. For all deaths of
incarcerated people, carceral healthcare providers were the sole source of
treatment.
A. INCARCERATED HEALTHCARE

Local and state jurisdictions differ in how they provide healthcare for
incarcerated people. Some jails and prisons contract for healthcare with

14
See id. at 20 (reviewing Louisiana deaths 2015–2019); see also MORTALITY IN LOCAL
JAILS 2001–2018, supra note 7, at 12 tbl.8 (reviewing deaths 2008–2018, with heart disease
the largest category of illness related deaths); MORTALITY IN STATE AND FEDERAL PRISONS,
supra note 7, at 12 tbl.10 (reviewing deaths 2001–2018, with heart disease being the second
largest category of illness related deaths).
15
See MORTALITY IN STATE AND FEDERAL PRISONS, supra note 7, at 7 tbl.2.
16
See ARMSTRONG, supra note 13, at 26.
17
See id.
18
Id.
19
Id.
20
Id. at 20, 26; Louisiana Deaths Behind Bars: 2015–2019 Dataset, INCARCERATION
TRANSPARENCY, https://www.incarcerationtransparency.org/?page_id=3837 [https://perma.cc
/KM6C-8BPE].

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private corporations21 such as Correct Health,22 Corizon Correctional
Healthcare,23 and Wellpath,24 among others. Corizon, for example, provides
healthcare in the carceral settings at over 140 locations in fifteen states,
covering approximately 116,000 people.25 As of 2018, private healthcare
companies are responsible for healthcare in 62% of the nation’s 523 largest
jails.26 Other carceral settings create their own internal correctional
healthcare system by directly hiring healthcare professionals. Louisiana’s
Department of Public Safety and Corrections’ (DPSC) Chief Medical and
Mental Health Director oversees healthcare services provided at the eight
state-managed prisons.27 Healthcare staff are employees of DPSC, but the
agency also contracts with outside providers for specialty or part-time
services.28 Some jurisdictions use their existing state and local healthcare
systems to provide healthcare for incarcerated people. For example, Cook
County Jail in Chicago, Illinois provides healthcare through an affiliate of

21
See Jason Szep, Ned Parker, Linda So, Peter Eisler & Grant Smith, U.S. Jails are
Outsourcing Medical Care—and the Death Toll is Rising, REUTERS (Oct. 26, 2020, 11:00
AM), https://www.reuters.com/investigates/special-report/usa-jails-privatization/ [https://per
ma.cc/C5VX-EEK5].
22
Our Clients, CORRECT HEALTH, http://correcthealth.org/our-clients/ [https://perma.cc/
2NEM-L5QQ].
23
CORIZON HEALTH, http://www.corizonhealth.com [https://perma.cc/7ART-XLSY].
24
Divisions, WELLPATH, https://wellpathcare.com/divisions/ [https://perma.cc/DX6A7KJE].
25
Szep, Parker, So, Eisler & Smith, supra note 21.
26
Id.
27
See Plaintiffs’ Proposed Findings of Fact and Conclusions of Law at 8, Lewis v. Cain,
No. 15-cv-00318 (M.D. La. Apr. 17, 2019), ECF No. 557 (noting the statewide medical
director’s job as “run[ning] healthcare operations” for the department); see also Addy Baird,
Louisiana Bars Problem Doctors from Practicing Medicine in Most Hospitals. So They Treat
Incarcerated People Instead., BUZZFEED NEWS (May 10, 2021, 2:28 PM), https://www.buzz
feednews.com/article/addybaird/louisiana-prison-doctors-licenses-suspended [https://perma.
cc/378J-YEU2].
28
See, e.g., Lewis v. Cain, No. 15-cv-00318, 2021 WL 1219988, at *6 (M.D. La. Mar. 31,
2021) (“Specialty care is provided at LSP [Louisiana State Penitentiary] in one of two ways:
either a panel of specialists who come to LSP or outside specialists to whom LSP refers
patients.”); see ANDREA ARMSTRONG, BRUCE REILLY & ASHLEY WENNERSTROM, ADEQUACY
OF HEALTHCARE PROVIDED IN LOUISIANA STATE PRISONS 1, 3 (2021), https://www.incarcera
tiontransparency.org/wp-content/uploads/2021/05/Adequacy-of-Healthcare-Provided-in-Lou
isiana-State-Prisons.pdf [https://perma.cc/HY4P-NZKL] (assessing the challenges for
healthcare in Louisiana State prisons in study brief requested by the legislature in H. Con. R.
91, 2020 Leg., Reg. Sess. (La. 2020)).

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the Cook County Bureau of Health Services and all clinical and support staff
are public employees.29
The type of provider may impact the quality of care. A Reuters
Investigation of medically-related deaths in the largest jails nationwide found
higher death rates in facilities with privately managed care than publicly
managed healthcare.30 Regardless of the entity providing care, incarcerated
people are not free to choose their healthcare provider, arrange for second
opinions, or seek care outside of whichever system their facility has
employed.
Incarcerated people may also encounter other obstacles to receiving
healthcare, including requirements for medical co-pays. The majority of
states charge incarcerated people a fee to see a healthcare professional, often
referred to as a “co-pay” or “co-payment.”31 Prisons and jails nationwide
justify imposing co-pays on incarcerated people for medical services to “raise
revenue,” “deter frivolous medical claims,” and “teach[] them lessons in
money management.”32 While there is little evidence to support these
justifications,33 correctional healthcare experts (including formerly
incarcerated people) worry that co-pays can be an obstacle to obtaining
healthcare behind bars.34 In a May 2021 report, based on a review of
Louisiana state policies, internal and external audits, and interviews with
external health providers, the authors (including myself) calculated that the
required medical co-pay of $3 was the real world equivalent of $1,087 for a
sick visit.35 For emergency medical visits, the real world equivalent of a $6
29
ILL. GUARDIANSHIP & ADVOC. COMM’N, HUM. RTS. AUTH.—CHI. REGION, REPORT 15030-9002: CERMAK HEALTH SERVICES OF COOK COUNTY 1 (2015), https://www2.illinois.gov/
sites/gac/HRA/Reports/2015/15-030-9002.pdf [https://perma.cc/HV9U-YELS].
30
Szep, Parker, So, Eisler & Smith, supra note 21.
31
Tiana Herring, Prisons Shouldn’t Be Charging Medical Co-Pays—Especially During a
Pandemic, PRISON POL’Y INITIATIVE: BRIEFINGS (Dec. 21, 2020), www.prisonpolicy.org/blog
/2020/12/21/copay-survey [https://perma.cc/ULT6-6TEN].
32
Rachael Wiggins, A Pound of Flesh: How Medical Copayments in Prison Cost Inmates
Their Health and Set Them Up for Reoffense, 92 COLO. L. REV. 255, 263 (2021).
33
Id. at 263–73.
34
See, e.g., Charging Inmates a Fee for Health Care Services, NAT’L COMM’N ON CORR.
HEALTH CARE, www.ncchc.org/charging-inmates-a-fee-for-health-care-services [https://perm
a.cc/4KGP-XZBG] (last updated Nov. 2017); Michelle Pitcher, Should Prisoners Have to Pay
for Medical Care During a Pandemic?, MARSHALL PROJECT (Nov. 2, 2020, 6:00 AM), www.
themarshallproject.org/2020/11/02/should-prisoners-have-to-pay-for-medical-care-during-apandemic [https://perma.cc/WM4J-P2BE].
35
ARMSTRONG, REILLY & WENNERSTROM, supra note 28, at 4. We calculated the real
world minimum wage equivalent by dividing the co-pay of $3 by the incentive wage of 2¢ an

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co-pay was $2,175, while $2 prescription co-pays were $725.36 Though state
policy provides that no incarcerated person will be denied healthcare due to
lack of funds, those charges become legal debts that can be deducted from
future prison earnings or collected after release.37 In light of these costs,
incarcerated people may forgo healthcare until their illness more deeply
impacts their daily life.38
Second, prison and jail healthcare systems are oriented toward sickness
and symptoms, not wellness and health. Incarcerated people usually do not
have annual checkups or other preventative visits with healthcare
professionals that are available to free people.39 Instead, carceral healthcare
is set up to respond to “sick call” requests by incarcerated people to address
urgent or immediate symptoms.40 In Louisiana, for example, state prison
policies only provide for annual checkups for adults 50 years and older and
even then, state audits indicate these check-ups are not consistently
completed.41 The single largest group of incarcerated decedents in Louisiana
were Black males, ages fifty-five to sixty, serving a sentence for conviction,
comprising 11% of all known deaths 2015–2019.42 Black people in
particular, due to disparities in healthcare access, wealth, and healthy living
hour paid for field labor and then multiplied the number of hours it would take to earn the copay by the federal minimum wage. Id. For example, to earn $3, an incarcerated person would
have to work 150 hours in the field. Id. We then multiplied the federal minimum wage of
$7.25 by the number of hours (150) to conclude a real world equivalent cost of $1,087. Id.
36
Id.
37
LA. DEP’T OF PUB. SAFETY & CORR., HEALTH CARE CO-PAYMENT 1, 2 (2009),
https://www.incarcerationtransparency.org/wp-content/uploads/2021/05/HEALTH-CARECO-PAYMENT.pdf [https://perma.cc/9Y2N-B2NJ]; see also Katie Rose Quandt & James
Ridgeway, At Angola Prison, Getting Sick Can Be a Death Sentence, IN THESE TIMES (Dec.
20, 2016), https://inthesetimes.com/features/angola-prison-healthcare-abuse-investigation
.html [https://perma.cc/3XC2-ZMVN] (quoting Francis Brauner, formerly incarcerated at
Angola, “If you ever do get money, they take all that money to pay toward your medical bill.
And if you don’t, and you leave prison, it follows you.”).
38
See Christopher Zoukis, Co-pays Deter Prisoners from Accessing Medical Care,
PRISON LEGAL NEWS (Jan. 31, 2018), www.prisonlegalnews.org/news/2018/jan/31/co-paysdeter-prisoners-accessing-medical-care/ [https://perma.cc/5PN8-VL8Q].
39
See Glenn Ellis, Examining Health Care in U.S. Prisons, PHILA. TRIB. (Mar. 25, 2017),
https://www.phillytrib.com/news/examining-health-care-in-u-s-prisons/article_43520055-78
9e-52a9-aed5-eaf1c75c7c36.html [https://perma.cc/TJ7T-YP5R].
40
See Jasmine Villanueva-Simms, Mind the Gap—The Prisoner as an Organ Recipient:
A Review of the Practical Barriers Between Prisoners and Organ Transplants, 14 J. HEALTH
& BIOMEDICAL L. 149, 156–58 (2018) (outlining federal sick call process).
41
ARMSTRONG, REILLY & WENNERSTROM, supra note 28, at 4–5.
42
ARMSTRONG, supra note 13, at 4.

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spaces,43 may enter incarceration with greater health needs. Thus, these
annual visits are even more important for a population disproportionately
impacted by incarceration. 44
Third, many states allow healthcare professionals to practice medicine
on incarcerated patients on “restricted” or “suspended” licenses.45 These
same healthcare providers are simultaneously prohibited from practicing
outside of prisons and jails because of violations of their license’s code of
conduct.46 One investigation found that ten out of twelve physicians hired by
Louisiana State Penitentiary lost their license to practice outside of carceral
settings due to disciplinary violations—including illegal distribution of
narcotics, sexual misconduct, and possession of child pornography.47 This
appears to be a common practice in the United States and not just for statemanaged correctional healthcare.48 In Alabama, where healthcare is provided
through a contract with Corizon, twelve out of thirty physicians “either had
current or prior restrictions of their license, prior adverse reports from the
medical board, or had lost privileges either entirely or on a temporary basis,”
43
See generally Dorothy E. Roberts, The Most Shocking and Inhuman Inequality:
Thinking Structurally About Poverty, Racism, and Health Inequities, 49 UNIV. OF MEMPHIS L.
REV. 167 (2018) (arguing that structural causes of racism and poverty create health inequities).
44
See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON
POL’Y INITIATIVE (Mar. 24, 2020) (noting Black people are 40% of incarcerated populations,
but only 13% of the U.S. population).
45
Keri Blakinger, Disgraced Doctors, Unlicensed Officials: Prisons Face Criticism Over
Health Care, NBC NEWS (July 1, 2021, 5:00 AM), https://www.nbcnews.com/news/us-news
/disgraced-doctors-unlicensed-officials-prisons-face-criticism-over-health-care-n1272743
[https://perma.cc/XG2C-3CW7].
46
See id.
47
Baird, supra note 27.
48
A sample of states with documented cases hiring disciplined healthcare staff includes:
Alabama, see MICHAEL PUISIS, S. POVERTY L. CTR., ALABAMA DEPARTMENT OF CORRECTIONS
MEDICAL PROGRAM REPORT 21–22 (2016), https://www.splcenter.org/sites/default/files/docu
ments/doc._555-3_-_expert_report_of_dr._michael_puisis.pdf [https://perma.cc/RCD6-Y7
7W]; Louisiana, see Baird, supra note 27; Oklahoma, see Andrew Knittle, Oklahoma
Corrections Department Officials Say Prison Doctors Aren’t Shackled by Past Problems,
OKLAHOMAN (Sept. 27, 2016, 12:00 AM), https://www.oklahoman.com/article/5519744/
oklahoma-corrections-department-officials-say-prison-doctors-arent-shackled-by-pastproblems [https://perma.cc/TY9P-5HM6]; Georgia, see Danny Robbins, Georgia Hires
Prison Doctors with Troubled Pasts, ATLANTA J.-CONST. (Dec. 12, 2014), https://www.ajc.
com/news/state--regional-govt--politics/georgia-hires-prison-doctors-with-troubled-pasts/ihz
49tyMbWg9dKLu1vt2CI/ [https://perma.cc/4ZPG-6JVW]; Illinois, see Taylor Elizabeth
Eldridge, Why Prisoners Get the Doctors No One Else Wants, APPEAL (Nov. 8, 2019),
https://theappeal.org/why-prisoners-get-the-doctors-no-one-else-wants/ [https://perma.cc/H5
V5-SP3H].

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according to the Southern Poverty Law Center.49 This practice is specifically
against guidance issued by the National Commission on Correctional Health
Care, which recommends all healthcare staff in carceral settings be fully
licensed.50 More broadly, advocates and formerly incarcerated people have
also argued that prisons have improperly used “nonmedical” staff to triage
and treat incarcerated patients.51
Finally, chronic and long-term diseases,52 such as cancer, heart and
kidney disease, require ongoing care, often involving specialty healthcare
that may not be available in carceral settings.53 In these cases, correctional
healthcare staff must order and then coordinate the appointments with
external medical providers.54 But in Louisiana, for example, American
Correctional Association audits revealed that none of eight state-managed
prisons completed 100% of the specialty consults ordered by prison
physicians over a twelve-month period.55 At one Louisiana prison, which has
the largest budget for carceral healthcare relative to other prisons in the

49

PUISIS, supra note 48, at 21.
NAT’L COMM’N ON CORR. HEALTH CARE, STANDARDS FOR HEALTH SERVICES IN JAILS
50 (2018) (“A license that limits practice to only correctional healthcare is not in compliance
with this standard.”).
51
See, e.g., JC Canicosa, In Five Years, 786 People Died in Louisiana’s Jails and Prisons,
a New Report Finds, LA. ILLUMINATOR (June 2, 2021, 1:25 PM), www.lailluminator.
com/2021/06/02/in-five-years-786-people-died-in-louisianas-jails-and-prisons-a-new-reportfinds/ [https://perma.cc/4G8S-QKA9] (quoting Norris Henderson, who was formerly
incarcerated at Angola); see also Complaint at 3, 22, 40, Lewis v. Cain, No. 15-cv-00318
(E.D. La. May 20, 2015), ECF No. 1; Norris Henderson, VOICE OF THE EXPERIENCED, https://
www.vote-nola.org/norris-henderson.html [https://perma.cc/4344-GSBS] (introducing Norris
Henderson, founder of Voice of the Experienced, who was wrongfully incarcerated for 27
years).
52
This discussion does not include mental health diseases, which can also be long-term
illnesses and can result in suicide. See generally Louise Brådvik, Suicide Risk and Mental
Disorders, 15 INT’L J. ENV’T RSCH. & PUB. HEALTH 2028 (2018). The data collected do not
allow for determinations of whether suicides are deemed to be the result of a pre-existing
condition, which is the focus of this Article.
53
See KIL HUH, ALEX BOUCHER, STEPHEN FEHR, FRANCES MCGAFFEY, MATT MCKILLOP
& MARIA SCHIFF, PEW CHARITABLE TRUSTS, STATE PRISONS AND THE DELIVERY OF HOSPITAL
CARE 2 (2018), https://www.pewtrusts.org/-/media/assets/2018/07/prisons-and-hospital-care_
report.pdf [https://perma.cc/EMY3-PTSZ].
54
See id. at 6–8 (discussing different state approaches to approval and review processes
for external hospital treatment).
55
ARMSTRONG, REILLY & WENNERSTROM, supra note 28, at 7.
50

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state,56 only 50% of ordered specialty consults were completed.57 Obstacles
for ensuring proper specialty care include receiving approval from
headquarters for budgetary purposes, lack of availability for transport staff,
and communication between medical and security staff.58 These challenges
are even more important given that approximately half of these illnesses in
Louisiana develop after admission to jail or prison.59 Interviews with external
health providers, conducted as part of a 2021 legislative study of prison
healthcare in Louisiana, underscore the gravity of the data. Interviewees
agreed that incarcerated patients initially present more advanced stages of
disease at earlier ages than their non-incarcerated patients.60
B. STANDARDS FOR INCARCERATED HEALTHCARE CLAIMS

Amongst these significant challenges to access and quality healthcare
services, litigation to address wrongful deaths and inadequate healthcare
must surmount higher than normal legal standards.
Incarcerated people have a constitutional right to adequate medical and
mental healthcare consistent with the level of care provided outside of
prisons.61 In 1976, the U.S. Supreme Court held that the government is
obligated “to provide medical care for those whom it is punishing by
incarceration” in Estelle v. Gamble.62 Mr. J.W. Gamble, who was convicted
and incarcerated in Texas, was injured while forced to work unloading bales
of cotton.63 After being punished with solitary confinement for refusal to
work after continued medical complaints, he sued claiming the refusal to

56
The medical operating budget for Louisiana State Penitentiary (LSP) for FY 2020 is
$24,647,905, the highest listed for all prisons. See LA. DEP’T PUB. SAFETY & CORR., BUDGET,
FISCAL YEAR 2020 (2019) (on file with author). Similarly, medical expenditures are also the
highest among all state prisons at $26,048,831. Id.
57
ARMSTRONG, REILLY & WENNERSTROM, supra note 28, at 3.
58
See generally HUH, BOUCHER, FEHR, MCGAFFEY, MCKILLOP & SCHIFF, supra note 53,
at 6, 11 (discussing different state prison approaches to providing healthcare and identifying
challenges).
59
See ARMSTRONG, supra note 13, at 26.
60
See ARMSTRONG, REILLY & WENNERSTROM, supra note 28, at 4–5.
61
See e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976); Farmer v. Brennan, 511 U.S. 825,
832 (1994); Brown v. Plata, 563 U.S. 493, 510–11, 545 (2011); see also Edmo v. Corizon,
Inc., 935 F.3d 757, 786 (9th Cir. 2019), cert. denied sub nom. Idaho Dep’t of Corr. v. Edmo,
141 S. Ct. 610 (2020) (“Accepted standards of care and practice within the medical community
are highly relevant in determining what care is medically acceptable and unacceptable.”).
62
429 U.S. at 103.
63
Id. at 99.

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provide adequate medical care violated the U.S. Constitution’s prohibition
on “cruel and unusual punishment” under the Eighth Amendment.64 Though
Mr. Gamble’s specific claim failed,65 the Court subsequently affirmed the
broader government obligation to provide medical and mental healthcare in
Farmer v. Brennan66 and Brown v. Plata,67 among other cases.
Unfortunately, the courts have not clearly defined a standard for
“adequate” medical treatment. Instead, medical services available to
incarcerated individuals are merely required to be at a level “reasonably
commensurate with modern medical science and of a quality acceptable
within prudent professional standards.”68 Moreover, courts are often reticent
to “second guess” medical decisions and “constitutionalize” medical
claims.69
To enforce the right to constitutionally-adequate healthcare,
incarcerated people must overcome a series of hurdles created by the Prison
Litigation Reform Act (PLRA).70 The PLRA erects several barriers to
litigation, including requiring exhaustion of administrative complaint
procedures and limiting attorney’s fees.71 Research by Professor Margo
64

Id. at 99–101.
Id. at 107–08. Mr. Gamble’s claim failed because the actions taken by the prison,
including seventeen medical visits, did not establish that the state was “deliberately
indifferent” to his medical need. Id.
66
511 U.S. at 825, 832 (noting obligation to provide medical care under the Eighth
Amendment while addressing Eighth Amendment claim of failure by prison officials to
protect petitioner, an incarcerated preoperative transwoman, from assault).
67
Brown v. Plata, 563 U.S. 493, 511 (2011) (“A prison that deprives prisoners of basic
sustenance, including adequate medical care, is incompatible with the concept of human
dignity and has no place in civilized society.”).
68
United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987); see also Kosilek v.
Maloney, 221 F. Supp. 2d 156, 160 (D. Mass. 2002) (“Adequate care requires treatment by
qualified personnel, who provide services that are of a quality acceptable when measured by
prudent professional standards in the community. Adequate care is tailored to an inmate’s
particular medical needs and is based on medical considerations.”).
69
Joel H. Thompson, Today’s Deliberate Indifference: Providing Attention Without
Providing Treatment to Prisoners with Serious Medical Needs, 45 HARV. C.R.-C.L. L. REV.
635, 638 (2010) (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)).
70
See 42 U.S.C. § 1997; see also Andrea C. Armstrong, No Prisoner Left Behind:
Enhancing Public Transparency of Penal Institutions, 25 STAN. L. & POL’Y REV. 435, 461
(2014) (describing PLRA restrictive requirements generally). See generally Margo Schlanger,
Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5. U.C. IRVINE L. REV. 153
(2015) (analyzing the impact of the PLRA on civil rights filings by incarcerated people).
71
Andrea Fenster & Margo Schlanger, Slamming the Courthouse Door: 25 Years of
Evidence for Repealing the Prison Litigation Reform Act, PRISON POL’Y INITIATIVE (Apr. 26,
65

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Schlanger demonstrates that the PLRA has been highly effective at reducing
civil rights litigation by incarcerated people since its passage in 1996.72 In
addition to these general hurdles to litigation, both incarcerated people and
families of incarcerated decedents face more demanding standards when
asserting claims of inadequate healthcare than non-incarcerated people.
Generally, a non-incarcerated person must prove that a healthcare
professional acted “negligently” in the provision of care for a successful
claim of medical malpractice.73 Negligence only requires that a physician act
contrary to what a “reasonable” physician would have done and is usually
proven by showing the care provided was below the generally accepted
standard of care.74 A doctor does not have to intend to provide substandard
care per se, but rather a non-incarcerated person must prove that the doctor
acted inconsistently with accepted practices, policies, and standards.75
In contrast, incarcerated patients and families of decedents must prove
“deliberate indifference.”76 Deliberate indifference is more akin to a standard
of “recklessness,” which requires that a healthcare professional subjectively
and actively knew of the “substantial risk of serious harm” and nevertheless
failed “to take reasonable measures” to avoid the harm. 77 “[W]hen some
medical care is administered by officials, even if it arguably falls below the
generally accepted standard of care, that medical care is often sufficient to
rebut accusations of deliberate indifference.”78 The Fifth Circuit arguably
established an even higher standard by requiring proof 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.”79 “Unsuccessful medical
2021), www.prisonpolicy.org/reports/PLRA_25.html [https://perma.cc/65GB-229J]; see also
Easha Anand, Emily Clark & Daniel Greenfield, How the Prison Litigation Reform Act Has
Failed for 25 Years, APPEAL (Apr. 26, 2021), www.theappeal.org/the-lab/explainers/how-theprison-litigation-reform-act-has-failed-for-25-years [https://perma.cc/B9JK-BFNA].
72
See Fenster & Schlanger, supra note 71.
73
61 AM. JUR. 2D Physicians, Surgeons, Etc. § 331 (2021).
74
See id.
75
Id.
76
Estelle v. Gamble, 429 U.S. 97, 104–06 (1976).
77
Farmer v. Brennan, 511 U.S. 825, 836, 847 (1994) (“It is, indeed, fair to say that acting
or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner
is the equivalent of recklessly disregarding that risk.”).
78
Burgos v. Phila. Prison Sys., 760 F. Supp. 2d 502, 508 (E.D. Pa. 2011).
79
See Thomas v. Carter, 593 F. App’x 338, 342 (5th Cir. 2014) (quoting Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)).

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treatment, acts of negligence, or medical malpractice” are not sufficient to
prevail in litigation challenging healthcare provided by correctional
authorities.80
While Glenn Ford’s lawsuit for inadequate medical care was ultimately
voluntarily dismissed,81 other federal cases illustrate the difficulty of
establishing “deliberate indifference” for carceral healthcare for serious
illnesses. These cases often fall into two categories: 1) failure to timely screen
or diagnose and 2) failure to adequately treat post-diagnosis.
At least one circuit has held that the failure to timely screen or test can
be a violation of the Eighth Amendment when it comes to communicable
diseases.82 However, that failure is often examined within the context of the
impact of the delayed diagnosis.83
Yet, for other types of chronic illnesses, a “failure to timely diagnose”
claim will be construed as a “failure to adequately treat” claim, which then
fails. For example, in California, an incarcerated patient was diagnosed with
hypertension in 2003 and complained of symptoms consistent with heart
failure in 2015 but was treated for acid reflux.84 In 2019, while incarcerated
at a different prison, he was diagnosed with heart failure and scheduled for
heart surgery.85 In 2020, he sued alleging a “failure to diagnose and treat his
heart condition” based on the 2003 and 2015 diagnoses.86 The court instead
treated his claim as a misdiagnosis, rather than a failure to timely screen,
writing “[t]o the extent CDCR medical staff misdiagnosed Balderrama’s
condition in 2003 and 2015, even negligence constituting medical
malpractice is not sufficient to establish an Eighth Amendment violation.”87
Similarly, in the Seventh Circuit, a plaintiff alleged failure to timely diagnose
bladder cancer after sixteen months of treatment for complaints of blood in
80

Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013) (quoting Gobert, 463 F.3d at

346).
81

Order of Dismissal at 1, Ford v. Cain, No. 15-cv-00136 (M.D. La. June 13, 2017), ECF
No. 140.
82
Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981).
83
See Andrew Brunsden, Comment, Hepatitis C in Prisons: Evolving Toward Decency
Through Adequate Medical Care and Public Health Reform, 54 UCLA L. REV. 465, 491
(2006) (“For the most part, courts have avoided the question of deliberate indifference by
asking whether a delay in HCV diagnosis caused actual harm to the inmate.”).
84
See Balderrama v. Cal. Dep’t of Corr. & Rehab., No. CV 20-6052-JGB, 2020 WL
4260965, at *1 (C.D. Cal. July 24, 2020).
85
Id.
86
Id.
87
Id. at *3.

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his urine.88 While the court acknowledged that it may be “regrettable” that
prison doctors did not perform the diagnostic test earlier, the court relied on
evidence that doctors provided treatment based on their hypotheses at the
time, and that those hypotheses were not gross departures from the standard
of care.89
Incarcerated people may develop serious life-threatening illnesses, but
carceral healthcare systems are often ill-equipped to detect, diagnose, and
treat these conditions. When carceral systems fail to provide adequate care,
the consequences can be deadly, as incarcerated people are not free to arrange
for their own healthcare or treatment. Litigation is less likely to be successful
due to barriers like the PLRA and more onerous standards of proof for claims
of inadequate medical care. Superimposed on top of these more stringent
standards for claims of inadequate healthcare for serious medical needs,
courts also impose the qualified immunity doctrine when the plaintiff seeks
monetary damages as a remedy.
II. APPLYING QUALIFIED IMMUNITY TO WRONGFUL MEDICAL DEATHS
AND SERIOUS MEDICAL NEEDS
Qualified immunity is a legal doctrine that protects government actors
from monetary liability for harms that occur during performance of their
official duties. The qualified immunity doctrine for civil rights violations
emerged from cases primarily dealing with police and individual
discretionary decisions. In 1967, the U.S. Supreme Court applied the defense
of good faith to civil rights actions under 42 U.S.C. § 1983 in Pierson v.
Ray.90 In Pierson, which involved the arrest of religious ministers violating
Mississippi segregation laws, the Court held that the defense of “good faith”
was available to police officers alleged to have committed an
unconstitutional arrest.91 Subsequent cases applying Pierson to executive
branch actions (as distinct from judicial or legislative branches) involve
school administrator disciplinary decisions,92 state hospital administrator

88

Duckworth v. Ahmad, 532 F.3d 675, 677 (7th Cir. 2008).
Id. at 680–81.
90
386 U.S. 547, 557 (1967).
91
Id.
92
E.g., Wood v. Strickland, 420 U.S. 308, 316–19 (1975) (clarifying the intent standard
and applying immunity defense to school board decisions), abrogated by Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (adjusting the defense to require proof of violation of a “clearly
established” law or right).
89

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decisions rejecting petitions for release from indefinite civil commitment, 93
and prison official decisions on mail.94 Two issues arise from a review of
these early qualified immunity cases for claims of constitutionally inadequate
medical care in carceral settings.
These early qualified immunity cases are premised on binary decisions
and time-sensitive decision-making. First, these early cases concern
individual binary decisions, such as the decision to arrest or the decision to
refuse to mail a letter sent by an incarcerated person.95 The deciding
government actor must choose whether or not an action (arrest, school
discipline, confinement) should be taken.96 However, medical decisions are
different. They are rarely binary yes/no decisions. Instead, medical decisions
are more akin to a decision tree. Each medical question, once answered, leads
to a different decision point for additional action. Once diagnosed, the
decision is often what types of treatment follow, not whether or not to treat.
Moreover, the challenged healthcare is often a series of missed or failed
decisions culminating in serious harm, compared to an individual binary
choice.
Second, police qualified immunity cases in particular focus on the need
for swift, in the moment, decision-making. Those decisions are protected, in
part, because in time-pressured situations, courts have held that officials
should be given the benefit of the doubt.97 Accordingly, one of the aims of
qualified immunity is to provide immunity where officials did not have prior
notice that certain actions are prohibited.98 However, many non-emergency
medical decisions, particularly decisions on testing and diagnosis, are not
similarly time pressured. Decisions on which tests to order for a nonemergency medical condition can be made after the healthcare visit is
complete since the patient remains incarcerated (and therefore available) for
future appointments. Diagnoses need not be immediate, but can evolve over
See, e.g., O’Connor v. Donaldson, 422 U.S. 563, 576–77 (1975).
E.g., Procunier v. Navarette, 434 U.S. 555, 557, 561 (1978).
95
See Pierson, 386 U.S. at 551–52 (describing the claim for unconstitutional arrest);
Procunier, 434 U.S. at 557 (describing the claim that prison officials refused to mail specific
letters from Mr. Navarette).
96
See Pierson, 386 U.S. at 551–52; Procunier, 434 U.S. at 557; Wood, 420 U.S. at 312–
14 (describing a school board member decision to expel students).
97
See, e.g., Donovan v. City of Milwaukee, 17 F.3d 944, 946, 951 (7th Cir. 1994) (noting
the qualified immunity doctrine “gives public officials the benefit of legal doubts” and
applying it to a police decision to engage in a high-speed chase resulting in the death of
motorcyclists).
98
See Butz v. Economou, 438 U.S. 478, 497–98 (1978).
93
94

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time based on symptom prevalence or change and testing results. Treatment
plans may be revised or adjusted based on a patient’s response. None of these
medical decisions are the traditional split-second decisions, particularly those
involved in police use of force or arrest cases.
Furthermore, qualified immunity doctrine itself has changed over time,
including shedding the requirement that a defendant prove the subjective
element of “good faith.”99 Currently, to overcome a defendant prison
official’s claim of qualified immunity, a plaintiff must show 1) violation of a
constitutional or statutory right and 2) that the right was clearly established
at the time of the offense. The U.S. Supreme Court held that courts have
discretion on the order of inquiry for the two prongs of qualified immunity
analysis.100 Thus, courts may look to whether a right was clearly established
at the time of the harm without determining whether in fact there was a
violation of the claimed right.101
Lower courts are increasingly taking up the Supreme Court’s invitation
to avoid unnecessary decisions on constitutional questions102 by focusing on
the second prong of the qualified immunity doctrine, namely whether a
claimed right is “clearly established.” “To be clearly established, a right must
be sufficiently clear ‘that every reasonable official would [have understood]
that what he is doing violates that right.’”103 In other words, “existing
precedent must have placed the statutory or constitutional question beyond
debate.”104 Courts examining whether a right is clearly established compare
“the factual circumstances faced by the defendant to the factual
circumstances of prior cases to determine whether the decisions in the earlier
cases would have made clear to the defendant that his conduct violated the

99
Compare Wood, 420 U.S. at 1000–01 (indicating that the qualified immunity standard
requires good faith), with Pearson v. Callahan, 555 U.S. 223, 231 (2009) (omitting the
reference to good faith in the qualified immunity standard).
100
Pearson, 555 U.S. at 236.
101
See, e.g., Reichle v. Howards, 566 U.S. 658, 664 (2012) (applying this approach and
holding the right was not clearly established without addressing whether the right exists or
was violated).
102
Pearson, 555 U.S. at 241; see Karen M. Blum, Qualified Immunity: Time to Change
the Message, 93 NOTRE DAME L. REV. 1887, 1893, 1896 (2018) (identifying cases in the
Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits).
103
Reichle, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
104
Id.; see also Zach Lass, Lowe v. Raemisch: Lowering the Bar of the Qualified Immunity
Defense, 96 DENV. L. REV. 177, 187–88 (2018) (noting this is a higher standard than the “fair
warning” standard articulated by the U.S. Supreme Court in Hope v. Pelzer, 536 U.S. 730
(2002)).

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law.”105 In addition,U.S. Supreme Court has said that precedent “must be
‘particularized’ to the facts of the case.”106
A. QUALIFIED IMMUNITY APPLIED TO WRONGFUL DEATH FOR
ILLNESS

If families can successfully prove deliberate indifference for inadequate
healthcare, they have usually satisfied the first prong of the qualified
immunity analysis. The second prong, however, requires more than a
showing of deliberate indifference; instead, plaintiffs must prove that the
right was clearly established at the time of the violation. Put another way, a
claim for inadequate medical treatment can be found deliberately indifferent,
in part because “contemporary standards and opinions of the medical
profession also are highly relevant in determining what constitutes deliberate
indifference to medical care.”107 But to be clearly established, a prison’s
medical provider must also have notice that courts or other authoritative
bodies have previously held those same professional standards to be legally
binding or required, since one of the key rationales of qualified immunity is
prior notice for defendants of the care required.108 Additionally, some courts
have actively required evidence of “bad faith.”109
In the Tenth Circuit, the failure to identify prior decisions from the
Supreme Court or the Tenth Circuit was fatal for the plaintiff’s claim of
inadequate healthcare because of a seven day delay in the diagnosis of toxic
105

Sandoval v. Cnty. of San Diego, 985 F.3d 657, 674 (9th Cir. 2021); see also Hope, 536
U.S. at 741 (“Although earlier cases involving ‘fundamentally similar’ facts can provide
especially strong support for a conclusion that the law is clearly established, they are not
necessary to such a finding. The same is true of cases with ‘materially similar’ facts.”); id. at
741–42 (reversing the circuit court grant of qualified immunity because prior cases gave “fair
warning” that the conduct at issue violated the Constitution).
106
White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
107
Howell v. Evans, 922 F.2d 712, 719 (11th Cir. 1991), vacated pursuant to
settlement, 931 F.2d 711 (11th Cir. 1991), opinion reinstated sub nom. Howell v. Burden, 12
F.3d 190 (11th Cir. 1994).
108
See, e.g., Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011) (“The basic question is
whether the state of the law at the time that Dr. Elyea acted gave him reasonable notice that
his actions violated the Constitution.”).
109
See, e.g., Est. of Hammers v. Douglas Cnty., Kan. Bd. of Comm’rs, 303 F. Supp. 3d
1134, 1151 (D. Kan. 2018) (“While it is indeed clearly established that correctional facilities
must provide adequate medical care to its inmates, it is not ‘clearly established’—for purposes
of qualified immunity—that Undersheriff Massey’s policies and procedures [to address
substance abuse withdrawal and protocols for medical assistance] violated this right.”).

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metabolic encephalopathy.110 The plaintiff was treated by jail healthcare
providers for symptoms of drug or alcohol withdrawal until his rapid
deterioration led to hospitalization, where he received the correct
diagnosis.111 At issue was the decision to diagnose and treat Mr. Crowson
without “first obtaining the results from a previously ordered blood test.”112
The blood test could have revealed a metabolic imbalance, which is
consistent with symptoms of encephalopathy.113 The Tenth Circuit held that
the doctor’s actions fell into a “grey area” among prior cases, and therefore
could not “conclude that every reasonable official would have known it was
a violation” to diagnose and treat without test results.114
Qualified immunity doctrine also shields prison-based healthcare from
damages where advances in medical professionals’ understanding of certain
diseases is not reflected in prior cases. By relying on facts and decisions from
prior cases instead of expert understanding at the time of the challenged
actions, courts ensure that advances in knowledge and/or treatments are
irrelevant to qualified immunity analysis. For example, in California, a
plaintiff sued claiming that his 2009 placement in a prison within a region
suffering a Valley Fever outbreak constituted deliberate indifference given
his history of asthma and higher vulnerability to the disease as an AfricanAmerican person.115 At the time of his placement, California did not have
restrictions on who could be placed in those facilities, but the guidelines that
would have prohibited his placement were added in 2013.116 The court held
that it was not clearly established that plaintiff should be excluded from those
facilities at the time of his placement.117

110

Crowson v. Washington Cnty., 983 F.3d 1166, 1183–84 (10th Cir. 2020); see also
Karthik Kumar, What is Metabolic Encephalopathy?, MEDICINENET (Oct. 1, 2020),
https://www.medicinenet.com/what_is_metabolic_encephalopathy/article.htm [https://perma
.cc/5JXD-2TCN] (“Metabolic encephalopathy or toxic metabolic encephalopathy is a
condition in which brain function is disturbed either temporarily or permanently due to
different diseases or toxins in the body. Metabolic encephalopathies may be reversible if the
preexisting disorders are treated. If left untreated, they may result in brain damage.”).
111
Crowson, 983 F.3d at 1173.
112
Id. at 1182–84.
113
Id. at 1175.
114
Id. at 1183.
115
Hines v. Youssef, No. 1:13-CV-0357, 2015 WL 2385095, at *1 (E.D. Cal. May 19,
2015), aff’d in part, rev’d in part sub nom. Hines v. Youseff, 914 F.3d 1218 (9th Cir. 2019).
116
Id. at 4.
117
Id. at 10.

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The “clearly established” prong may also invite courts to construe
asserted rights more narrowly in the qualified immunity context than they
would for the primary constitutional claim. Though the general right to
adequate healthcare is well acknowledged, in some cases the right asserted is
broken down into constituent pieces. Plaintiffs in these courts must prove that
certain diagnostic tests or treatments are embedded in the generally
acknowledged right or that the delay in treatment caused serious harm. Put
another way, plaintiffs have to prove the content of the right just as much as
the existence of the right itself.
In a case involving the death of an incarcerated patient during
withdrawal from narcotics, a district court in Oklahoma found that while “the
right to custodial medical care is clearly established,” the court also found
that “there is no clearly established law that there is a constitutional
requirement of a maximum time a person can be held for purposes of
detoxification before they must be referred for physical or
mental medical care.”118 Similarly, a district court in California concluded
“although the law requires access to minimally adequate medical care, given
that there is no precedent specifically on point the contour of the law does
not ‘clearly establish’ a prisoners [sic] right to medivac services.”119 That
court also denied qualified immunity without prejudice on a different count
of the complaint alleging that the prison lacked appropriate emergency
staffing.120 In a different California case, the Ninth Circuit upheld the lower
court’s grant of qualified immunity, concluding “the specific right that the
inmates claim in these cases—the right to be free from heightened exposure
to Valley Fever spores—was not clearly established at the time.”121
Cases concerning the treatment of Hepatitis C behind bars in the Third
and Fourth Circuits indicate that not all courts apply this narrow approach
requiring an exact precedent to prove the right was clearly established. In the
Third Circuit, the prison defendant argued the right at stake for qualified
immunity purposes was the “right to receive immediate treatment with directacting antiviral medication rather than monitoring and treatment under a

118
Grizzle v. Christian, No. CIV-16-254-SPS, 2018 WL 4286187, at *7, *8 (E.D. Okla.
Sept. 7, 2018).
119
Provencio v. Vazquez, 258 F.R.D. 626, 636 (E.D. Cal. 2009).
120
Id. at 637.
121
Hines v. Youseff, 914 F.3d 1218, 1229 (9th Cir. 2019), cert. denied, 140 S. Ct. 159
(2019).

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prioritization protocol” for treatment of Hepatitis C.122 The appellate court
upheld the denial of summary judgment on qualified immunity grounds,
construing the right as to be free of “delay[ed] necessary medical treatment
for non-medical reasons.”123 Similarly, a district court in the Fourth Circuit
rejected the narrow definition of the right advanced by the defendant.124 Mr.
Pfaller died of liver cancer while incarcerated in Virginia.125 The defendant
argued the right at issue was “the right of inmates with Hepatitis C to receive
treatment with DAAs [direct acting antiviral drugs].”126 The district court,
relying on Fourth Circuit precedent in Scinto,127 instead defined the right
broadly as the right to “receive adequate medical care and to be free from
officials’ deliberate indifference to his known medical needs.”128
B. UNIQUE BARRIERS CREATED BY QUALIFIED IMMUNITY FOR
WRONGFUL DEATH OR ILLNESS

Applying qualified immunity to cases of serious medical needs with a
high risk of death creates additional barriers for plaintiffs seeking damages.
First, in medical care cases, as compared to police use of force cases for
example, plaintiffs are often attempting to prove the absence of government
action, such as constitutionally-required healthcare.129 In many cases,
plaintiffs’ claims of deliberate indifference to serious medical needs are not
botched services, but the failure to timely diagnose or treat an illness in the
first place. Delays in treatment, standing alone, do not establish a violation

122

See Abu-Jamal v. Kerestes, No. 3:15-CV-967, 2018 WL 2166052, at *16 (M.D. Pa.
May 10, 2018), aff’d in part, dismissed in part, 779 F. App’x 893 (3d Cir. 2019).
123
Abu-Jamal, 779 F. App’x at 900.
124
See Pfaller v. Clarke, No. 3:19cv728, 2021 WL 1776189, at *10 (E.D. Va. May 4,
2021).
125
Id. at *1.
126
Id. at *10.
127
Scinto v. Stansberry, 841 F.3d 219, 235–36 (4th Cir. 2016).
128
Pfaller, 2021 WL 1776189, at *10.
129
See Thompson, supra note 69, at 642–47 (describing how prison health providers “do
not test,” or “test once and stop,” or “delay” to implicitly deny care). Compare Brosseau v.
Haugen, 543 U.S. 194, 194–97 (2004) (upholding qualified immunity for the defendant police
officer accused of excessive use of force in shooting a suspect fleeing in an automobile
because it was not clearly established), with Lewis v. Cain, No. 15-cv-318, 2021 WL 1219988,
at *5–17, *39–40 (M.D. La. Mar. 31, 2021) (detailing the findings of the absence of
constitutionally-mandated care in clinical care, specialty care, infirmary/in-patient care, sick
call, emergency care, and chronic care, and finding prison officials failed to provide
meaningful access to care).

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of a known constitutional right.130 Thus, plaintiffs must prove that Estelle and
its progeny require, for example, early detection or testing for certain
diseases, preventative healthcare, and certain types of treatments for chronic
illnesses, to survive a defense of qualified immunity.
Second, decisions being challenged in carceral medical care cases are
often not single, isolated decisions, but instead a series of decisions. The
typical qualified immunity case is focused on affirmative and single acts by
a government actor.131 In contrast, for carceral medical care cases, a plaintiff
must prove that a series of failures to act by a government actor creates
liability.132 For example, the one-time decision whether or not to arrest is
very different than the multiple medical decisions required to adequately
diagnose and appropriately treat a serious medical decision.
Third, traditional qualified immunity is often focused on the decisions
by a single actor or a unit of actors with similar expertise.133 In medical care
cases, healthcare is often delivered by various individuals, including
physicians, nurses, physician assistants, and in some cases, custodial staff
trained as emergency management technicians.134 The actors may be more
diffuse, involving multiple decision makers with different areas of expertise
such as medical personnel like triaging healthcare staff and treatment staff,
and non-medical decisionmakers such as security officials or administrative
officials with budgetary decision making.
Fourth, the doctrine, as a policy matter, removes incentives for prisons
and jails to proactively ensure their actions adhere to latest known advances
in disease understanding and treatment. Overcoming qualified immunity
130
See, e.g., Citrano v. Allen Corr. Ctr., 891 F. Supp. 312, 322 (W.D. La. 1995) (noting a
delay of four days for injuries sustained by beatings by security guard did not lead to
substantial harm).
131
See discussion infra Part II.
132
Id.
133
See, e.g., Pierson v. Ray, 386 U.S. 547, 551–52 (1967) (noting a claim against two
police officers and one police captain allegedly acting in concert)); Wood v. Strickland, 420
U.S. 308, 312–14 (1975) (describing a claim against school board members acting together as
a unit to render expulsion decision); O’Connor v. Donaldson, 422 U.S. 563, 567–70 (1975)
(detailing a claim against hospital administrator who repeatedly made the same decision to
deny release to a person involuntarily committed).
134
See e.g., Complaint at 38–41, Lewis v. Cain, No. 15-cv-00318 (M.D. La. May 20,
2015) (describing medical care staffing at Louisiana State Penitentiary and arguing staffing
and qualifications are insufficient); see also Crowson v. Washington Cnty., 983 F.3d 1166,
1174 (10th Cir. 2020) (“Dr. LaRowe was responsible for diagnosing and treating inmates, but
he visited the Jail only one or two days a week, for two to three hours at a time. Dr. LaRowe
relied heavily on the Jail’s deputies and nurses.”).

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depends on being able to prove that the law—and not necessarily best
practices of a profession—which requires certain decisions for medical
treatment through an examination of prior cases. However, emerging best
practices, based on new understandings of science and disease progression,
will not be reflected in prior cases. Since carceral healthcare remains
protected until courts hold those emerging practices to be legally required,
prisons and jails may choose to avoid incorporating those best practices into
their healthcare systems.
Last, traditional qualified immunity usually involves a government
actor making discretionary decisions within their area of expertise or
training. This idea is arguably implicit in one of the rationales underlying
qualified immunity, which is that the decision maker has prior notice that
their act is illegal.135 The rationale of prior notice assumes that the person is
acting within the area that they have expertise or training in and it is through
their familiarity with the subject matter in which they are making the
decision, that they have prior notice. In the traditional police wrongful arrest
case, the officer has been trained in arrest and therefore their decision to
arrest is based on their prior training and expertise.136 In carceral medical
cases, there are examples of qualified immunity being granted for decisions
made outside of their area of expertise or training.137 This could also
hypothetically be the case where, for example, a prison only employs general
medicine doctors, who then are responsible for diagnosing and treating
specialized diseases of incarcerated patients.
Prison medical care cases differ significantly from the traditional
qualified immunity cases. Traditional qualified immunity cases usually
involve discretionary decisions that are one-off, emergency, binary choices
made by a single actor or unit of actors. In contrast, medical decisions in
carceral settings are often serial, ongoing, and usually involve multiple
decision makers, sometimes acting beyond their area of expertise. These
135
See e.g., Saucier v. Katz, 533 U.S. 194, 206 (2001) (noting prior notice as rationale for
qualified immunity), modified, Pearson v. Callahan, 555 U.S. 223, 227 (2009).
136
See, e.g., Kennedy v. City of Villa Hills, 635 F.3d 210, 215–16 (6th Cir. 2011) (noting
the officer could not “reasonably believe that he had probable cause” for the arrest and
affirming the district court denial of qualified immunity defense); see also Malley v. Briggs,
475 U.S. 335, 345–46 (1986) (requiring “reasonable professional judgment” in an application
for an arrest warrant to invoke qualified immunity).
137
See Crowson, 983 F.3d at 1174, 1180 (affirming a grant of qualified immunity where
a nurse, who was not authorized to diagnose, only requested a psychological evaluation instead
of a physiological evaluation, consistent with the nurse’s belief that the incarcerated plaintiff’s
symptoms were “caused by the ingestion of illicit drugs or alcohol.” The plaintiff was later
diagnosed with toxic metabolic encephalopathy.).

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significant differences between medical decisions in carceral settings and
traditional qualified immunity decisions illustrate the practical difficulties for
incarcerated plaintiffs and their families in holding prisons accountable for
violating the U.S. Constitution. Furthermore, qualified immunity for these
types of decisions also creates perverse incentives for administrators of
carceral healthcare systems to only provide care recognized as
constitutionally necessary in prior cases.
III. QUALIFIED IMMUNITY IN DISTRESS
In recent years, advocates, courts, and policy makers have increasingly
criticized the scope and breadth of the qualified immunity doctrine. Several
state legislatures considered legislation to reduce the applicability of the
qualified immunity doctrine in state courts, particularly as it relates to police
decisions, though few of the bills were actually adopted.138 For federal civil
rights claims, congressional efforts to abolish or limit qualified immunity
have not yet been adopted.139
The U.S. Supreme Court, as well as most circuit courts, has also acted
to limit the potential breadth of the qualified immunity defense as applied to
prison and jail officials. In Taylor v. Riojas, a 2020 per curiam opinion, the
U.S. Supreme Court overruled a Fifth Circuit opinion affirming the lower
court’s grant of qualified immunity for inhumane conditions of
confinement.140 The Fifth Circuit, similar to the Ninth Circuit,141 had defined
the right at issue narrowly for qualified immunity purposes.142 The petitionerplaintiff in Taylor v. Riojas claimed that jail officials forced Mr. Taylor to

138

See e.g., H.R. 1727, 102d Gen. Assemb., Reg. Sess. (Ill. 2021); H.R. 609, 2021 Leg.,
Reg. Sess. (La. 2021). But see S.B. 20-217, 72d Gen. Assemb., 2d Reg. Sess. (Colo. 2020)
(removing qualified immunity for civil rights claims in state court under the Colorado
Constitution); H.R. 4, 2021 Leg., Reg. Sess. (N.M. 2021) (barring the qualified immunity
defense for claims of violations of civil rights under the New Mexico Constitution).
139
See e.g., George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021);
Ending Qualified Immunity Act, H.R. 1470, 117th Cong. (2021).
140
Taylor v. Riojas, 141 S. Ct. 52, 53 (2020).
141
See Hines v. Youssef, No. 1:13-CV-0357, 2015 WL 2385095, at *1 (E.D. Cal. May
19, 2015), aff’d in part, rev’d in part sub nom. Hines v. Youseff, 914 F.3d 1218 (9th Cir.
2019).
142
Taylor v. Stevens, 946 F.3d 211, 222 (5th Cir. 2019), cert. granted, judgment vacated
sub nom. Taylor v. Riojas, 141 S. Ct. 52 (2020) (“Though the law was clear that prisoners
couldn’t be housed in cells teeming with human waste for months on end . . . we hadn’t
previously held that a time period so short violated the Constitution.”) (internal citations
omitted).

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sleep naked in a cell caked with excrement and later in a cell with flooded
with raw sewage over a six day period in 2013.143 The Fifth Circuit held that
it was not “clearly established” that housing Mr. Taylor in “extremely dirty
cells for only six days” was constitutionally prohibited, and accordingly
affirmed the district court’s ruling of qualified immunity for the correctional
officers from Mr. Taylor’s civil rights claim.”144 Though the Fifth Circuit
found that there is a constitutional right to not be housed in “truly filthy,
unsanitary cells,”145 the Fifth Circuit also found that no prior case provided
sufficient notice that a six-day stint—as compared to months on end—would
violate the Constitution.146
The U.S. Supreme Court reversed in a per curiam opinion. Where the
Fifth Circuit had focused on the number of days (and lack of cases identifying
six days as the constitutional threshold), the Supreme Court looked instead
to lack of emergency or necessity for being housed in such conditions in the
first place.147 The Supreme Court also noted the lack of efforts to mitigate the
obvious unsanitary conditions, either by improving conditions or shortening
the time frame.148 While Taylor should help courts avoid the trap of finding
an exact factual match from prior case law, the opinion, by referencing
derogatory statements by the defendant prison guards,149 also seems to invite
additional inquiries into defendant’s state of mind during the violation.
A second area of narrowing is also apparent in opinions deciding who
may invoke qualified immunity for incarcerated healthcare. Jails in particular
are increasingly contracting out healthcare services to private medical
corporations such as Centurion, Correct Health, and Corizon Correctional
Health Care.150 A majority of circuits decided that these private corporations
cannot claim qualified immunity for providing the same services as a state

143

Taylor, 946 F.3d at 218–19; Riojas, 141 S. Ct. at 53.
Stevens, 946 F.3d at 217, 222.
145
Id. at 220.
146
Id. at 222.
147
Riojas, 141 S. Ct. at 54.
148
Id.
149
Id. (referencing remarks that “Taylor was ‘going to have a long weekend’” and that
“he hoped Taylor would ‘f***ing freeze’”) (citation omitted).
150
Szep, Parker, So, Eisler & Smith, supra note 21 (noting that the expansion of
privatization of incarcerated healthcare in jails began in the 1990s and that the percentage of
jails with privately managed healthcare rose from nearly half of all jails nationwide in 2010 to
62% by 2018).
144

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entity.151 In these states, private medical corporations risk greater liability
and financial exposure than the state would if it provided the same services
itself. This immunity preference for state actors over private actors, in light
of the trend towards contracting with privately healthcare providers, may
serve to at least limit the applicability of the qualified immunity doctrine for
claims of constitutionally inadequate medical care by private medical
providers.
The qualified immunity doctrine was developed and justified for a
different set of circumstances than those involving carceral healthcare
decisions. Recent developments, including adopting a broader approach for
assessing whether a right was clearly established and prohibiting the defense
for private actors, may lessen the obstacles for accountability for incarcerated
plaintiffs and their families in cases of carceral deaths. Significant challenges
remain, however, for claims of constitutionally inadequate medical care
against prison-based medical providers, particularly for novel illnesses.
CONCLUSION
Qualified immunity in the context of carceral healthcare does not make
sense. While legislative bodies reassess the doctrine due to increased
attention to police misconduct, little attention has been paid to the expansion
of the doctrine from its origins in street law enforcement to carceral
healthcare. Adding qualified immunity is an unnecessary layer of legal
protection atop already onerous legal standards governing inadequate
healthcare under the Eighth Amendment. It also goes beyond the original
intentions of the qualified immunity doctrine.
To the extent that the qualified immunity defense continues to be
available, it should be limited to its original context. Medical care decisions
behind bars are not usually single, emergency, affirmative, and binary
decisions. As such, decisions by carceral healthcare providers should be
categorically exempt from qualified immunity analysis.

151
Tanner v. McMurray, 989 F.3d 860, 864–65 (10th Cir. 2021) (citing Est. of Clark v.
Walker, 865 F.3d 544, 551 (7th Cir. 2017)); McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir.
2012); Jensen v. Lane Cnty., 222 F.3d 570, 580 (9th Cir. 2000); Hinson v. Edmond, 192 F.3d
1342, 1347 (11th Cir. 1999); see also Sanchez v. Oliver, 995 F.3d 461, 467 (5th Cir. 2021)
(noting circuit alignment and denying qualified immunity to private a healthcare corporation
providing healthcare services).