by Jodi Lessner*

Section 1983 of the United States Code establishes a statutory basis for individuals to sue state and local government officials in federal court for violating their constitutional or federal statutory civil rights. For incarcerated individuals awaiting trial, § 1983 claims brought against corrections officials for unconstitutional conditions of confinement are rooted in the Due Process Clause of the Fourteenth Amendment, as opposed to § 1983 claims for those who have already been convicted, which are rooted in the Eighth Amendment. In Kingsley v. Hendrickson, the Supreme Court ruled that an objective standard should be used to analyze § 1983 claims for excessive force brought under the Fourteenth Amendment by incarcerated individuals awaiting trial. However, claims of deliberate indifference, which contain an inherently subjective component, defy analysis utilizing an objective standard. Therefore, this Contribution argues a subjective standard, as applied to the deliberate indifference claim brought by a convicted individual in Farmer v. Brennan, should also apply to deliberate indifference claims brought by individuals awaiting trial. 

For years, lower courts have followed the Supreme Court’s holding in Farmer v. Brennan and utilized the subjective standard to evaluate deliberate indifference failure-to-protect claims brought under 42 U.S.C. § 1983 by detained individuals awaiting trial.1 However, following the Supreme Court’s decision in Kingsley v. Hendrickson, lower courts have struggled to determine what standard of proof to use to evaluate such claims.2

Kingsley v. Hendrickson utilized an objective standard to evaluate an excessive force claim brought under § 1983 by an incarcerated individual awaiting trial.3 Because the individual had not yet been convicted of a crime, their claim was rooted in the Due Process Clause of the Fourteenth Amendment, which protects against the deprivation of “life, liberty, or property, without due process of law . . . .”4 This right extends to incarcerated individuals awaiting trial, who may not be “punished prior to an adjudication of guilt . . . .”5

Incarcerated individuals who have been convicted of a crime, on the other hand, are protected by the less rights-inclusive Eighth Amendment, which prohibits cruel and unusual punishment.6 In Farmer, the Court held that a prison official may only be liable for deliberate indifference if they “den[y] humane conditions of confinement” despite knowing that the incarcerated individual “face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”7 Applying a state of mind element, this subjective standard requires the plaintiff to prove that the defendant, the prison official, was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”8 In other words, the plaintiff bears the burden to prove that the defendant was “subjectively aware of the substantial risk of serious harm” and thus had a “sufficiently culpable state of mind.”9

Regardless of detainment status, corrections officials are not allowed to violate incarcerated individuals’ applicable constitutional rights. They are, however, allowed to engage in policies and practices necessary to preserve “internal order and discipline” that may require “limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.”10 As a result, the Fourteenth Amendment cannot be invoked solely because the potentially negligent actor is a state official who limited an incarcerated individual’s due process rights. Rather, there must be a clear violation not justified by the needs of institutional security or some other legitimate government interest, such as use of excessive force by prison officials, deliberate indifference to health or safety, or failure-to-protect incarcerated individuals from harm.11 Whether an incarcerated individual awaiting trial can show that their due process rights were violated depends on the nature of the violation and the evaluative standard associated with that violation. This Contribution argues that deliberate indifference claims brought by incarcerated individuals awaiting trial under 42 U.S.C. § 1983 should be evaluated using the subjective standard, as dictated in Farmer.12

Excessive force and deliberate indifference claims are discrete issues distinguished by the element of intentionality in each claim. An excessive force claim protects detained individuals from the affirmative “use of excessive force that amounts to punishment.”13 An incarcerated individual’s deliberate indifference claim, regardless of conviction status, has nothing to do with affirmative acts meant to punish, but is instead more likely to relate to inaction, whether that be in a failure-to-provide-medical-care or failure-to-protect context.14 For claims of deliberate indifference, a plaintiff can only prevail if they can prove that the official failed to take a certain action and knew about this failure.15 Under Farmer, officials who lack subjective knowledge about a specific risk in deliberate indifference claims cannot be held liable for inflicting punishment.16 By contrast, excessive force is considered punishment by default. Therefore, the plaintiff need not show that the official intended for his force to be excessive, nor that he subjectively interpreted the force as excessive, just that the force can be objectively considered excessive.17

The objective standard used in Kingsley, which addressed an excessive force claim brought under § 1983 by an incarcerated individual awaiting trial, ignores an evaluation of the prison official’s intent—a critical element for assessing the merits of a deliberate indifference claim.18 However, even if Kingsley’s objective standard were to be used to evaluate deliberate indifference claims brought by individuals awaiting trial, the Fourteenth Amendment’s Due Process Clause could not provide the basis for redress. The Fourteenth Amendment only protects against acts committed with the intent to punish; negligently inflicted harm is categorically beneath the threshold of intent required for constitutional due process rights to attach.19 Thus, to prove the “culpable mental state” required for a deliberate indifference claim brought by an individual awaiting trial under the Due Process Clause, Farmer’s subjective standard must apply.20

The Supreme Court was aware of the differences between excessive force and deliberate indifference claims when writing Farmer and then Kingsley.21 The Court answered a narrow question in Farmer when it explicitly rejected the use of an objective test for deliberate indifference claims, emphasizing that the prison official must know of and disregard an excessive risk posed to the convicted individual’s safety before the official can be found liable.22 The question before the Court in Kingsley was equally limited, addressing not what standard should apply to any § 1983 claim brought by incarcerated individuals awaiting trial, but rather what standard should be used specifically in an excessive force claim.23 Not only did the Supreme Court not mention Farmer in Kingsley, but it made no reference to deliberate indifference claims at all.24 The Court also did not state that the objective standard applies universally to all due process claims brought by detained individuals awaiting trial, indicating that it only intended to resolve the narrow question before it: that the objective standard applies to excessive force claims and not to all § 1983 claims brought by those awaiting trial.25

Because intent is required to justify liability under a § 1983 deliberate indifference claim for violation of due process rights, negligently failing to protect an incarcerated individual from attack, regardless of conviction status, does not meet the standard for a successful claim.26 To prove the state of mind requirement addressed in Farmer, the claimant must establish a “state of mind more blameworthy than negligence.”27 Negligent conduct is an act “or an omission to act when there is a duty to do so,” which notably lacks an element of intent.28 However, Merriam-Webster defines “deliberate” as “characterized by or resulting from careful and thorough consideration,” thereby distinguishing the definition of negligence from that of deliberate indifference.29 But given that the Due Process Clause is only implicated by acts committed with the intent to punish,30 it does not protect against negligent acts associated with an objective standard, which definitionally were not committed with any intent, let alone an intent to punish.31 Thus, applying Kingsley’s objective standard to deliberate indifference failure-to-protect claims filed by incarcerated individuals awaiting trial would improperly lower the liability standard to one akin to negligence.

Finally, the Kingsley objective standard would reduce most deliberate indifference claims to a two-prong test consisting of (1) a showing that the conditions objectively deprived the incarcerated individual of the right to due process; and (2) a showing that the prison official acted at minimum with indifference to the risk.32 However, the Kingsley standard, written for an excessive force claim, erases the nuance that the Court warned was necessary when evaluating claims of deliberate indifference.33 Applying one standard to evaluate deliberate indifference claims brought by individuals awaiting trial and a different standard for those who have already been convicted flattens the very definition of “deliberate,” and creates a tiered standard of care.34 As a result, the only legally proper standard for a deliberate indifference claim is a subjective one, regardless of the plaintiff’s conviction status.

* Jodi Lessner is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 William B. Spong, Jr. Constitutional Law Moot Court Tournament, hosted by William and Mary School of Law. One of the questions presented was whether the subjective definition of deliberate indifference is the appropriate standard for measuring the duty owed to incarcerated individuals awaiting trial in a 42 U.S.C. § 1983 failure-to-protect claim for a violation of said individual’s Fourteenth Amendment Due Process Rights. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. 511 U.S. 825, 847 (1994).

2. 576 U.S. 389 (2015).

3. Id. at 395–96.

4. U.S. Const. amend. XIV, § 1.

5. Bell v. Wolfish, 441 U.S. 520, 535 (1979).

6. See id. at 599 n.16 (finding that Eighth Amendment protections only attach post-conviction after a “formal adjudication of guilt in accordance with due process of law”).

7. 511 U.S. at 847 (holding that the court “reject[s] petitioner’s [a convicted and detained individual] invitation to adopt an objective test for deliberate indifference”).

8. Id. at 837.

9. Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (citations omitted).

10. Bell, 411 U.S. at 546–47 (“[E]ven when an institutional restriction infringes a specific constitutional guarantee . . . the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.”).

11. See Sacramento v. Lewis, 523 U.S. 833, 848 (1997) (“[T]he due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.”).

12. 511 U.S. 825 (1994).

13. Kingsley, 576 U.S. at 397.

14. Daniels v. Williams, 474 U.S. 327, 332 (1986) (“Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person.”).

15. Farmer, 511 U.S. at 835–36 (holding that a prison official cannot be found liable under the Eighth Amendment unless the official “knows of and disregards an excessive risk to inmate health or safety”).

16. See id. at 838 (“[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”); contra Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (interpreting Kingsley to mean that the objective standard should apply to all claims brought by detained individuals awaiting trial, including claims of deliberate indifference, because “the Due Process Clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm”).

17. Kingsley, 576 U.S. at 395.

18. Id.

19. See Sacramento, 523 U.S. at 848–49 (rejecting negligence as a mark of sufficiently shocking conduct, the standard historically used by the Court to evaluate if a claim of abuse or lack of due care on the part of state officials rises to the level of a violation of the Fourteenth Amendment).

20. See Wilson v. Seiter, 501 U.S. 294 (1991).

21. Compare Farmer, 511 U.S. at 837 (“We reject petitioner’s invitation to adopt an objective test for deliberate indifference.”) with Kingsley, 576 U.S. at 395 (“We conclude with respect to that question an excessive force claim] that the relevant standard is objective.” (emphasis added)).

22. 511 U.S. at 837.

23. 576 U.S. at 395 (explaining that the question presented “concerns the defendant’s state of mind with respect to whether his use of force was ‘excessive’”).

24. Lower courts that extend the objective standard to all § 1983 conditions of confinement claims brought by incarcerated individuals awaiting trial, including deliberate indifference failure-to-protect claims, emphasize the nature of the individual’s underlying constitutional right rather than the type of claim and its associated components. See, e.g., Brawner v. Scott County, TN., 14 F.4th 585, 597 (6th Cir. 2021) (“. . . Farmer cannot fairly be read to require subjective knowledge where the Eighth Amendment does not apply, and the Supreme Court has not held that Farmer’s subjective standard applies to Fourteenth Amendment pre-trial detainee [failure-to-protect deliberate indifference] claims.”); Darnell, 849 F.3d at 35 (“Following the Supreme Court’s analysis in Kingsley, there is no basis for the reasoning . . . that the subjective intent requirement for deliberate indifference claims under the Eighth Amendment, as articulated in Farmer, must apply to deliberate indifference claims under the Fourteenth Amendment.”).

25. The majority of lower courts have adhered to the Supreme Court’s limited holding and declined to extend the objective standard beyond the boundaries of the circumstances in Kingsley. See, e.g., Nam Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1283 n.2 (11th Cir. 2017) (declining to extend Kingsley’s objective standard to a deliberate indifference claim because Kingsley did not involve a claim of deliberate indifference, therefore “it is not squarely on point with and does not . . . directly conflict with . . . prior precedent identifying the standard we apply in this opinion . . . .”); see also Strain v. Regalado, 977 F.3d 984, 991 (10th Cir. 2020) (declining to extend Kingsley to Fourteenth Amendment deliberate indifference claims in part because Kingsley focused only on whether the use of force constitutes punishment, rather than the conviction status of the individual).

26. See Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (“Merely negligent failure to protect an inmate from attack does not justify liability under section 1983.”); see also Castro v. L.A., 833 F.3d 1060, 1085 (9th Cir. 2016) (Ikuta, J., dissenting) (arguing that one cannot inflict punishment by way of accident, which would amount, at most, to negligence).

27. Farmer, 511 U.S. at 835.

28. Restatement (Second) of Torts § 282(a) (1965).

29. Deliberate, Merriam-Webster, https://www.merriam-webster.com/dictionary/deliberate (last visited November 13, 2024).

30. Sacramento, 523 U.S. at 849 (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”).

31. See Daniels, 474 U.S. at 328 (holding that the Fourteenth Amendment’s Due Process Clause is “simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”).

32. Darnell, 849 F.3d at 29.

33. See Sacramento, 523 U.S. at 850 (“Rules of due process are not, however, subject to mechanical application in unfamiliar territory.”).

34. See Hare v. City of Corinth, Miss., 74 F.3d 633, 649 (5th Cir. 1996) (“The fact of conviction ought not make one more amenable under the Constitution to unnecessary random violence or suffering, or to a greater denial of basic human needs.”).