A jury should not be instructed on the need to defer to prison officials’ decisions regarding the administration of prisons, in cases raising Eighth Amendment claims, unless the treatment that is at issue (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs. That point is reiterated in the Ninth Circuit’s opinion in Fierro v. Smith (19-16786), filed yesterday, where Arizona prison officials repeatedly disregarded an inmate’s request to be put in protective custody before the inmate was attacked by gang members. Fierro brought a claim under 42 U.S.C. § 1983 against the correctional officers who failed to respond to his requests to be housed safely.
In Fierro, the Ninth Circuit concluded, there were genuine factual disputes as to both of the two prongs of the analysis, and the jury should therefore have been given, at most, an instruction saying it was their choice whether to defer to prison officials’ judgment. In a footnote, the Ninth Circuit panel points out that even a “jury’s choice”-type instruction “could risk confusion without much added benefit,” which seems like a charitable way of putting it.