Case: Farmer v. Brennan

In this case, Dee Farmer, a transgender prisoner in the custody of the federal Bureau of Prisons, sued prison officials for failing to protect her from rape. The suit was first heard in U.S. District Court for the Western District of Wisconsin, where it was assigned to Judge John C. Shabaz. The plaintiff’s complaint, as amended on December 13, 1991, claimed that officials within the BOP showed “deliberate indifference” to a risk of violence by placing the plaintiff in the general prison population. (The original complaint was filed August 20, 1991, but it is not available to the Clearinghouse.) She sought compensatory and punitive damages, as well as an injunction barring future confinement in any penitentiary. In both the district court and before the Seventh Circuit, the plaintiff proceeded pro se. At the Supreme Court, she was represented by counsel from the ACLU.

The district court granted summary judgment to the defendants after concluding that there had been no deliberate indifference to the plaintiff’s safety. The district court applied a standard for “deliberate indifference” that required that prison officials were “reckless in a criminal sense,” meaning that they had “actual knowledge” of a potential danger. The court noted that the plaintiff never expressed concern for her safety to the defendants. Thus, the district court said, the defendants lacked knowledge of any potential danger and were not deliberately indifferent.

The U.S. Court of Appeals for the Seventh Circuit summarily affirmed the district court’s judgment on August 7, 1992. The plaintiff then asked the Supreme Court to review the Seventh Circuit and district court. The Court agreed and granted certiorari on October 4, 1993, to resolve an inconsistency across the circuits regarding the proper test for “deliberate indifference.”

In an opinion published June 6, 1994, the Court concluded that “deliberate indifference” existed in cases where prison officials were subjectively aware of a substantial risk of serious harm, but nonetheless disregarded that risk. 511 U.S. 825. The Court expressly rejected an objective test, explaining that an official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw [that] inference.” Because deliberate indifference was a recklessness standard, a person must “consciously disregard” a substantial risk of serious harm. This, the Court said, required a subjective inquiry.

Addressing the district court’s reasoning, the Court said that failure to give advance notice is not dispositive on the question whether officials were aware of a substantial risk to the defendant. Because the district court might have placed decisive weight on this fact, the Court vacated the holdings below and remanded the case to the Seventh Circuit for further proceedings. On remand from the Supreme Court, the Seventh Circuit likewise vacated the district court’s prior holding and remanded the case in an order published on July 8, 1994.

On remand, the district court again granted summary judgment for the defendants. It found that even under the Supreme Court’s new test, the defendants were not deliberately indifferent and thus did not violate the Eighth Amendment. The plaintiff appealed, and the Seventh Circuit again vacated and remanded the case. It explained in an opinion published on April 26, 1996, that the district court did not conduct “the kind of remand that the Supreme Court contemplated.” 81 F.3d 1444. The district court had denied all efforts by the plaintiff’s new lawyer to obtain extensions in order to formulate a Rule 56(f) motion and corresponding discovery requests. The Seventh Circuit found that this was an abuse of discretion. First, the district court did not explain why it found certain requests relevant and others irrelevant. Moreover, the district court ignored “the Supreme Court’s own observation that the record…indicate[d] that there were disputed issues of fact about the degree of knowledge possessed by the defendants.” And finally, the district court addressed the plaintiff’s case with unusual speed on remand. The Seventh Circuit therefore rejected the district court’s finding that plaintiff’s counsel “chose” to delay proceedings rather than timely respond to defense counsel’s motions. 

After this final remand, the case proceeded to trial, where the jury found for the defendants.

Note: The Clearinghouse obtained early drafts of the Supreme Court opinions and memoranda between Justice Blackmun and his clerk regarding the case. These papers illuminate how Farmer v. Brennan came to be decided unanimously. Justice Blackmun’s clerk, Michelle Alexander, emphatically disapproved of the criminal recklessness standard following oral argument, writing that: “The standard adopted in the draft opinion is wrong, and you should join it only to prevent a greater evil from taking hold.” She explained to Justice Blackmun that Justice Souter, writing for the majority, feared a more restrictive standard if he could not get enough votes. She conveyed the recommendation from Justice Souter’s clerk that Justice Blackmun join the majority opinion but write separately. 

In March 1994, Justice Scalia circulated a dissenting opinion, and Justice Thomas indicated his intent to join. In particular, Justice Scalia disagreed with Justice Souter’s characterization of injunctive relief in circumstances where a plaintiff alleges deliberate indifference—he worried that the majority opinion effectively eliminated the subjective knowledge requirement in injunctive cases. Justice Scalia also thought the district court acted within its discretion under the majority’s proposed “actual knowledge” standard. Justice Scalia also expressed dissatisfaction with including conditions of confinement within Eighth Amendment protections, a sentiment articulated in earlier opinions. By May, however, Justice Scalia had withdrawn his dissent and joined the majority. Although the papers do not divulge the reasoning, Justice Scalia presumably agreed with Justice Souter’s changes to the majority opinion regarding injunctive relief. For his part, Justice Thomas pivoted to writing a concurring opinion.