     05-4002-cv
     Caiozzo v. Koreman

1                           UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                  August Term, 2008

4    (Argued:    October 24, 2008                Decided: September 22, 2009)

5                                Docket No. 05-4002-cv

6                    -------------------------------------

7        ANTHONY CAIOZZO, as Administrator of the Estate of Phillip
8                                 Caiozzo,

9                                Plaintiff-Appellant,

10                                       - v -

11      BRIAN KOREMAN, MICHAEL BENEDETTO, ANTHONY CRISORIO, MICHAEL
12                      MOFFRE and GORDON C. RIVERS,

13                            Defendants-Cross-Claimants,

14                   JACK BEVLICOLA and VINAY B. DAS, M.D.,

15                           Defendants-Cross-Defendants,

16                               LINDA CUMMINS, R.N.,

17                        Defendant-Cross-Defendant-Appellee.

18                   -------------------------------------

19   Before:     SACK, KATZMANN and KELLY,* Circuit Judges.

20               Appeal from a judgment of the United States District

21   Court for the Northern District of New York (Gary L. Sharpe,

22   Judge).    We reaffirm our position, stated in Arroyo v. Schaefer,

23   548 F.2d 47, 50 (2d Cir. 1977), that the standard for analyzing a

24   claim of deliberate indifference to the health or safety of a



           *
             The Honorable Paul J. Kelly, Jr., of the United States
     Court of Appeals for the Tenth Circuit, sitting by designation.
1    convicted prison inmate held in state custody as a violation of

2    the right of the inmate to be free from cruel and unusual

3    punishment under the Eighth Amendment is also applicable to

4    claims brought by pretrial state detainees under the Due Process

5    Clause of the Fourteenth Amendment.   In light of the Supreme

6    Court's subsequent holding that a subjective standard is to be

7    applied in the Eighth Amendment context, under which a defendant

8    is liable only if he disregards a risk of harm of which he is

9    aware, Farmer v. Brennan, 511 U.S. 825, 837 (1994), we conclude

10   that the subjective standard also applies in the Due Process

11   context.   Contrary to our case law prior to the Supreme Court

12   decision, the question of fact before the district court was

13   therefore whether the defendant "kn[ew] of and disregard[ed] an

14   excessive risk to inmate health or safety."   Id. at 837.   There

15   is no evidence in the record on appeal from which a reasonable

16   juror could conclude in the affirmative.

17              Affirmed.

18                             CHAD A. JEROME, The LaFave Law Firm,
19                             PLLC (Lawrence J. Zyra, of counsel),
20                             Delmar, NY, for Plaintiff-Appellant.

21                             TIMOTHY S. BRENNAN, Phelan, Phelan &
22                             Danek, Albany, NY, for Defendant-Cross-
23                             Defendant-Appellee.

24   SACK, Circuit Judge:

25              In Farmer v. Brennan, 511 U.S. 825, 837 (1994), the

26   Supreme Court held that a subjective test adapted from the

27   criminal law applies to suits against federal prison officials

28   for violating a convicted inmate's right to be free from cruel or

                                      2
1    unusual punishment under the Eighth Amendment.   In the wake of

2    Farmer, such a defendant is liable to an injured prisoner only if

3    he "disregards a risk of harm of which he is aware," id. at 837,

4    and that causes the injury.   Prior to Farmer, we had held that

5    deliberate indifference claims brought by pretrial detainees in

6    state facilities under the Due Process Clause of the Fourteenth

7    Amendment were to be analyzed under the same test as Eighth

8    Amendment claims by inmates who stood convicted.   See, e.g.,

9    Arroyo v. Schaefer, 548 F.2d 47, 50 (2d Cir. 1977).   In the pre-

10   Farmer cases, however, the test we employed was objective, that

11   is, it could be met without proof as to the state of mind of the

12   defendant.   We asked whether there were "circumstances indicating

13   an evil intent, or recklessness, or at least deliberate

14   indifference to the consequences of his conduct for those under

15   his control or dependent upon him."   Id. at 49 (internal

16   quotation marks omitted).

17             In light of Farmer, we must decide which of two lines

18   of our case law to follow -- our prior Fourteenth Amendment Due

19   Process Clause jurisprudence, which permitted liability for abuse

20   of pretrial state detainees if the more easily met objective test

21   alone was met, or our prior decisions concluding that Fourteenth

22   Amendment due process cases brought by state pretrial detainees

23   should employ the same standards as Eighth Amendment cruel and

24   unusual punishment cases brought by convicts, now clearly a




                                      3
1    subjective standard.   We adhere to the latter line of authority.1

2    Following the lead of our sister circuits that have addressed

3    this question, we conclude that in Fourteenth Amendment

4    deliberate indifference claims brought by pretrial detainees in

5    state custody, the subjective standard is to be applied.

6    Applying it, we affirm the district court's grant of summary

7    judgment to the defendant.

8                                  BACKGROUND

9               Because summary judgment was granted against the

10   appellant, the administrator of the estate of Phillip Caiozzo

11   ("Caiozzo"), we consider the evidence in the light most favorable

12   to him.   See, e.g., Konikoff v. Prudential Ins. Co. of Am., 234

13   F.3d 92, 94 (2d Cir. 2000).    At approximately 9:49 a.m. on July

14   11, 2001, Caiozzo was arrested by an Albany police officer and

15   charged with first degree harassment.2     Following his arraignment

16   in Albany City Court, he was committed to the custody of the

17   Albany County Sheriff, who transferred him to the Albany County



          1
             Because this decision effectively overrules prior
     decisions of this Court, it has been circulated to all the active
     judges of the Court before filing. See, e.g., Slayton v. Am.
     Express Co., 460 F.3d 215, 228 n.13 (2d Cir. 2006).
          2

                A person is guilty of harassment in the first
                degree when he or she intentionally and
                repeatedly harasses another person by
                following such person in or about a public
                place or places or by engaging in a course of
                conduct or by repeatedly committing acts
                which places such person in reasonable fear
                of physical injury.
     N.Y. Penal Law § 240.25.

                                       4
1    Correctional Facility ("ACCF") at around 6:45 p.m.       Caiozzo had

2    previously been incarcerated at the ACCF on at least twenty-seven

3    separate occasions, and had been treated for chronic alcoholism

4    by the facility's medical staff.       On this occasion, the ACCF

5    booking officer recommended that Caiozzo be placed under

6    intensive observation because he appeared intoxicated.       Caiozzo

7    was then sent to the medical department, where the nurse on duty,

8    Defendant-Appellee Linda Cummins, R.N., performed an intake

9    medical assessment at around 7:30 p.m.       Vinay B. Das, M.D., was

10   the doctor on call at that time.

11              The ACCF intake assessment consists of obtaining

12   information from the detainee by asking a standardized list of

13   questions.   The nurse is required to make several specific

14   observations, including whether the detainee is conscious, shows

15   signs of injury or illness, or has visible signs of fever.       The

16   nurse is also required to assess any signs that the detainee is

17   at risk of suicide, assault, or abnormal behavior.

18              In her intake assessment of Caiozzo, Cummins took his

19   vital signs, which were within normal limits.       Caiozzo was able

20   to answer her questions and to sign the intake form.       Cummins

21   noted that Caiozzo exhibited abnormal behavior and smelled of

22   alcohol, and that he stated that he was "possessed."       Caiozzo

23   also told Cummins that he wanted to go to sleep because he was

24   tired.   He reported that he had been hospitalized during the

25   preceding year.   Caiozzo had a history of psychiatric treatment



                                        5
1    and mental problems that the appellant asserts were related to

2    alcohol abuse.

3              Caiozzo told Cummins that he consumed alcohol daily.

4    Cummins then asked when he had had his last drink.    Cummins'

5    notes indicate her understanding, based on Caiozzo's response,

6    that his last drink had been in the early evening of that very

7    day, July 11.    It now appears that this was not the case, and

8    that Caiozzo meant to refer to the previous evening.      Cummins'

9    understanding corresponded with the booking officer's

10   observation, of which Cummins was aware, that Caiozzo appeared

11   intoxicated when he was booked at 6:45 p.m.; it also corresponded

12   with her own observation that his breath smelled of alcohol.      The

13   appellant argues that Cummins should have realized that it was

14   not possible for Caiozzo to have consumed alcohol earlier that

15   same evening, since he had been arrested that morning and had

16   been in custody ever since.    While the appellant acknowledges

17   that Cummins was unaware of this chronology, he asserts that with

18   proper diligence, Cummins would have uncovered this information.

19   The timing of a detainee's last drink is important in assessing

20   the need for and timing of alcohol withdrawal treatment.

21             At the end of her assessment, Cummins concluded --

22   erroneously, as it turns out -- that Caiozzo was under the

23   influence of alcohol.    She placed him under continual

24   observation, which was consistent with the booking officer's

25   recommendation.



                                       6
1              That evening, two corrections officers were assigned to

2    monitor five inmates, including Caiozzo.    The officers kept the

3    inmates under continual observation and recorded their

4    observations in a log book at approximately 15 minute intervals.

5    At about 10:15 p.m., Cummins received a call from the officer

6    monitoring Caiozzo, who stated that Caiozzo was yelling and

7    acting irrationally.   Cummins came to his cell, where Caiozzo

8    told her that he was going to go through alcohol withdrawal.

9    Cummins noted in her medical chart:    "[S]tates will be having

10   withdrawal from alcohol."   Cummins did not enter the cell,

11   examine the decedent, or ask him any questions, any or all of

12   which might have led her to observe alcohol withdrawal signs and

13   symptoms such as incoherence, tremors, or sweating.

14             Cummins called Dr. Das and reported Caiozzo's signs and

15   symptoms as she had observed them.    Based on her earlier

16   misinterpretation of Caiozzo's statement, she told Das that

17   Caiozzo's most recent drink had been earlier that evening.    She

18   also told Das that Caiozzo was intoxicated, noting that he was

19   speaking irrationally to himself, and was behaving erratically

20   and apparently had mental health problems.    Das indicated that

21   Caiozzo should be kept under constant observation, that Das would

22   follow up first thing in the morning, and that Das would start an

23   alcohol withdrawal protocol at that time, if necessary.

24             Cummins did not receive any further calls from the

25   observing officer between 10:15 p.m. and 2:45 a.m.    During that

26   time period, the officer assigned to monitor Caiozzo, defendant

                                      7
1    Koreman, did not notice Caiozzo shaking, trembling or sweating.

2    Neither did he observe any unusual behavior by Caiozzo, who

3    appeared to be awake on and off.       Caiozzo vomited once in his

4    toilet, but aside from that, he did not seem to Koreman to be in

5    medical distress.

6               At approximately 2:50 a.m., Caiozzo appeared to Koreman

7    to have "some sort of spasm," after which Caiozzo rolled out of

8    bed.   Koreman asked Caiozzo if he was all right.      He did not

9    respond.   Koreman yelled to the other officer to summon medical

10   help and opened the cell to check on Caiozzo, who appeared to be

11   breathing.

12              The ACCF medical unit was informed that Caiozzo had

13   fallen out of bed and was not moving.       Another officer, defendant

14   Michael Benedetto, entered the cell and found that Caiozzo was

15   breathing and had a pulse.   The officers continued to monitor him

16   until a nurse, Ann Curtis, arrived shortly thereafter.       Curtis

17   examined Caiozzo and found that he was not breathing.       Cardio-

18   pulmonary resuscitation procedures were begun.       Cummins was

19   called to assist.   She furnished oxygen and other emergency

20   equipment.   CPR was applied pending the arrival of the Emergency

21   Medical Service at 3:15 a.m.   EMS then took over the treatment.

22   At the time, Caiozzo had a pulse of 60 beats per minute and blood

23   pressure of 70 over 30.   He was taken to Albany Medical Center.

24              Later that day, having been removed from life support,

25   Caiozzo died.   His death was ascribed to seizure due to acute and

26   chronic alcoholism.

                                        8
1              On March 12, 2003, Plaintiff-Appellant Anthony Caiozzo,

2    as administrator of Caiozzo's estate, instituted this action in

3    the United States District Court for the Northern District of New

4    York pursuant to 42 U.S.C. § 1983, alleging various

5    constitutional violations by various defendants.   At the close of

6    discovery, the defendants moved for summary judgment.     At that

7    time, the plaintiff voluntarily withdrew his claims against all

8    of the defendants except for Cummins and Das, and withdrew

9    certain of his constitutional claims as against them.     The

10   remaining claims against Cummins and Das were for deliberate

11   indifference to Caiozzo's medical needs in violation of his

12   rights under the Eighth and Fourteenth Amendments.

13             At the conclusion of oral argument, the district court

14   (Gary L. Sharpe, Judge) granted Das' motion for summary judgment,

15   but reserved judgment on Cummins' motion and requested further

16   briefing on the question of whether an "objective" or

17   "subjective" standard should be applied.   Following the

18   additional briefing and further oral argument, the court applied

19   the subjective test, under which a defendant is liable only if he

20   "disregards a risk of harm of which he is aware," Farmer, 511

21   U.S. at 836-37, and granted summary judgment dismissing the

22   plaintiff's claims against Cummins.   The court stated:    "I

23   believe this decision is generated from the decision as to what

24   standard applies, the objective one or the subjective one."

25   Hearing Tr., May 19, 2005 ("May Tr."), at 11.



                                     9
1              The plaintiff does not contest the grant of summary

2    judgment to Das.    The sole issue on appeal is the district

3    court's decision to grant Cummins' motion for summary judgment on

4    the claim of deliberate indifference to the medical needs of a

5    pretrial detainee.    The plaintiff argues that the objective test

6    should be applied, and that even under the subjective test,

7    summary judgment should not have been granted.

8              We agree with the district court that the subjective

9    test applies and that no reasonable juror could conclude that

10   Cummins' behavior met that test.       We therefore affirm the

11   judgment of the district court.

12                                DISCUSSION

13             I.    Standard of Review

14             We review the district court's grant of summary

15   judgment de novo, construing the evidence in the light most

16   favorable to the nonmoving party.       Jaramillo v. Weyerhaeuser Co.,

17   536 F.3d 140, 145 (2d Cir. 2008).       "[W]e are 'required to resolve

18   all ambiguities and draw all permissible factual inferences in

19   favor of the party against whom summary judgment is sought.'"

20   Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).       Whether to

21   apply the subjective or objective standard is a legal question

22   that we also review de novo.    See Guiles ex rel. Guiles v.

23   Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006).

24             II.    Applicable Substantive Standard

25             A convicted prisoner's claim of deliberate indifference

26   to his medical needs by those overseeing his care is analyzed

                                       10
1    under the Eighth Amendment2 because the right the plaintiff seeks

2    to vindicate arises from the Eighth Amendment's prohibition of

3    "cruel and unusual punishment."    Weyant v. Okst, 101 F.3d 845,

4    856 (2d Cir. 1996).   In the case of a person being held prior to

5    trial, however, "the 'cruel and unusual punishment' proscription

6    of the Eighth Amendment to the Constitution does not apply,"

7    because "as a pre-trial detainee [the plaintiff is] not being

8    'punished,'"   Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.

9    2000); see also Weyant, 101 F.3d at 856.    Instead, a person

10   detained prior to conviction receives protection against

11   mistreatment at the hands of prison officials under the Due

12   Process Clause of the Fifth Amendment if the pretrial detainee is

13   held in federal custody, or the Due Process Clause of the

14   Fourteenth Amendment if held in state custody.    Compare Cuoco,

15   222 F.3d at 103, 106 (applying Fifth Amendment to a federal

16   detainee), with Liscio v. Warren, 901 F.2d 274, 275-76 (2d Cir.

17   1990) (applying Fourteenth Amendment to a state detainee).      While

18   the plaintiff identified causes of action for deliberate

19   indifference under the Eighth, Fifth and Fourteenth Amendments,

20   the district court correctly concluded that a claim for

21   indifference to the medical needs of Caiozzo, as a pretrial

22   detainee in state custody, was properly brought under the Due

23   Process Clause of the Fourteenth Amendment.    See May Tr. at 3.


          2
             In the case of a state prisoner, it is the Eighth
     Amendment as applied to the States by the Fourteenth Amendment.
     See, e.g., Olivier v. Robert L. Yeager Mental Health Ctr., 398
     F.3d 183, 191 n.7 (2d Cir. 2005).

                                       11
1              In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme

2    Court addressed the question of whether to use a "subjective" or

3    an "objective" standard in determining deliberate indifference in

4    the context of a convicted prisoner's rights under the Eighth

5    Amendment, see id. at 837-38.   The Court noted that "[w]ith

6    deliberate indifference lying somewhere between the poles of

7    negligence at one end and purpose or knowledge at the other, the

8    Courts of Appeals have routinely equated deliberate indifference

9    with recklessness."   Id. at 836.    But this did not resolve the

10   question, because there are two legal tests for recklessness: the

11   civil-law objective test, under which a defendant is liable if he

12   "fails to act in the face of an unjustifiably high risk of harm

13   that is either known or so obvious that it should be known," and

14   the criminal-law subjective test, under which a defendant is

15   liable if he "disregards a risk of harm of which he is aware."

16   Id. at 836-37.   The Court concluded that the subjective test

17   should apply under the Eighth Amendment because it prohibits

18   cruel and unusual punishment, and a prison official's action or

19   inaction cannot properly be termed "punishment" of the detainee

20   if the official was not actually aware of an excessive risk to an

21   inmate's health or safety.   See id. at 837-38.

22             We have not decided which standard to use when a claim

23   of deliberate indifference in violation of the Due Process Clause

24   of the Fourteenth Amendment is brought by a pretrial detainee in

25   state custody.   In Benjamin v. Fraser, 343 F.3d 35 (2d Cir.

26   2003), we noted that "in a challenge by pretrial detainees

                                     12
1    asserting a protracted failure to provide safe prison conditions,

2    the deliberate indifference standard does not require the

3    detainees to show anything more than actual or imminent

4    substantial harm," id. at 51 (emphasis in original).     But we

5    observed by way of footnote that "[i]n other types of challenges

6    -– for example, when pretrial detainees challenge discrete

7    judgments of state officials -– meeting the deliberate

8    indifference standard may require a further showing."     Id. at 51,

9    n.18 (emphasis added).

10              Before Farmer was decided, in Liscio v. Warren, 901

11   F.2d 274 (2d Cir. 1990), we applied the objective standard in a

12   case somewhat similar to this one.    There, the state pretrial

13   detainee brought a claim of deliberate indifference, asserting

14   that his alcohol withdrawal was not properly treated due in part

15   to an initial misdiagnosis made at a state detention center.       See

16   id. at 275-76.   We reversed the district court's grant of the

17   defendant's motion for summary judgment, ruling that "[s]ince the

18   medical records indicated that Liscio was a 'poor historian' of

19   his own condition, [the defendant] was on notice that Liscio

20   might be suffering from ailments other than" the ones the

21   plaintiff himself had identified.    Id. at 276.   We also noted

22   that several facts had been elicited that could have led a

23   reasonable juror to find that the defendant should have been

24   aware that Liscio was suffering from alcohol withdrawal.     See id.

25   at 277.   The plaintiff argues that Liscio requires us to apply



                                     13
1    the objective standard to the case at hand.    If Liscio were still

2    good law, the plaintiff's argument might well be persuasive.

3              Also prior to Farmer, however, we held that the

4    standard for deliberate indifference is the same under the Due

5    Process Clause of the Fourteenth Amendment as it is under the

6    Eighth Amendment.   Arroyo v. Schaefer, 548 F.2d 47, 49-50 & n.3

7    (2d Cir. 1977).   In Arroyo we concluded that "[w]hile the Eighth

8    Amendment may not, strictly speaking, be applicable to pretrial

9    detainees,"   id. at 50, in the context of a claim for deliberate

10   indifference to the medical needs of a state pretrial detainee,

11   the Due Process Clause of the Fourteenth Amendment "requires no

12   more" than the Eighth Amendment does in the case of a convicted

13   prisoner, id. (citation omitted).    And if a defendant prison

14   official in this context is liable for an Eighth Amendment

15   violation only if he "disregards a risk of harm [to a prisoner]

16   of which he is aware" under the Eighth Amendment, Farmer, 511

17   U.S. at 837, it would seem to follow that a defendant prison

18   official also is liable for a Fourteenth Amendment violation only

19   if he disregards a risk of harm to a detainee of which he is

20   aware.

21             In the wake of Farmer, we have assumed that our

22   practice of applying the Eighth Amendment deliberate indifference

23   test in cases involving claims brought under the Fourteenth

24   Amendment continues.   See Cuoco v. Moritsugu, 222 F.3d 99, 106

25   (2d Cir. 2000) ("We have often applied the Eighth Amendment

26   deliberate indifference test to pre-trial detainees bringing

                                     14
1    actions under the Due Process Clause of the Fourteenth

2    Amendment.").   Cuoco applied the Farmer standard to a claim of

3    deliberate indifference brought under the Fifth Amendment by a

4    pretrial detainee in federal custody.   We see no reason to apply

5    a standard for due process claims brought by state detainees

6    under the Fourteenth Amendment that is different from the one

7    that we employ for due process claims brought by federal

8    detainees under the Fifth Amendment.    See Cuoco, 222 F.3d at 106

9    ("We see no reason why the analysis should be different under the

10   Due Process Clause of the Fifth Amendment [than under the Due

11   Process Clause of the Fourteenth Amendment]."); see also Malinski

12   v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J.,

13   concurring) ("To suppose that 'due process of law' meant one

14   thing in the Fifth Amendment and another in the Fourteenth is too

15   frivolous to require elaborate rejection.").

16             We think, then, that it is a logical extension of the

17   principles recognized in Farmer that an injured state pretrial

18   detainee, to establish a violation of his Fourteenth Amendment

19   due process rights, must prove, inter alia, that the government-

20   employed defendant disregarded a risk of harm to the plaintiff of

21   which the defendant was aware.   Cf. Farmer, 511 U.S. at 837.

22             Our sister circuits that have examined this question

23   after Farmer have all reached a similar conclusion.3   As the


          3
            See Phillips v. Roane County, Tenn., 534 F.3d 531, 539-40
     (6th Cir. 2008) (internal citations omitted) (holding that under
     the Due Process Clause of the Fourteenth Amendment, a pretrial
     detainee asserting a claim of deliberate indifference to serious

                                      15
1   Fifth Circuit reasoned in its post-Farmer decision in Hare v.


    medical needs must demonstrate both "the existence of a
    'sufficiently serious' medical need" and that "'the official
    being sued subjectively perceived facts from which to infer
    substantial risk to the prisoner, that he did in fact draw the
    inference, and that he then disregarded that risk,'" reasoning
    that this approach "'is meant to prevent the
    constitutionalization of medical malpractice claims'"); Butler v.
    Fletcher, 465 F.3d 340, 344-46 (8th Cir. 2006) (holding "that
    deliberate indifference [which has both an objective and
    subjective component] is the appropriate standard of culpability
    for all claims that prison officials failed to provide pretrial
    detainees with adequate food, clothing, shelter, medical care,
    and reasonable safety"), cert. denied, 550 U.S. 917 (2007);
    Surprenant v. Rivas 424 F.3d 5, 18 (1st Cir. 2005) (holding, in
    the context of a claim of unconstitutional conditions of
    confinement, "the parameters of [a pretrial detainee's Fourteenth
    Amendment interests] are coextensive with those of the Eighth
    Amendment's prohibition against cruel and unusual punishment" and
    that "[i]n order to establish a constitutional violation, a
    plaintiff's claim must meet both objective and subjective
    criteria"); Whiting v. Marathon County Sheriff's Dept., 382 F.3d
    700, 703 (7th Cir. 2004) (holding that the question of whether
    the plaintiff's deliberate indifference claim was based on the
    Eighth Amendment as a prisoner or the Fourteenth Amendment as a
    pretrial detainee was "immaterial" since "the legal standard
    . . . is the same under either"); Olsen v. Layton Hills Mall, 312
    F.3d 1304, 1315 (10th Cir. 2002) (internal citation omitted)
    ("Although '[p]retrial detainees are protected under the Due
    Process Clause rather than the Eighth Amendment, . . . this Court
    applies an analysis identical to that applied in Eighth Amendment
    cases brought pursuant to [42 U.S.C.] § 1983.'"); Brown v.
    Harris, 240 F.3d 383, 388 (4th Cir. 2001) ("[W]e need not resolve
    whether [the decedent] was a pretrial detainee or a convicted
    prisoner because the standard in either case is the same.");
    Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 & n.6 (11th
    Cir. 1997) (concluding that "the minimum standard for providing
    medical care to a pre-trial detainee under the Fourteenth
    Amendment is the same as the minimum standard required by the
    Eighth Amendment for a convicted prisoner" and that the standard
    is "violated by a government official's deliberate indifference
    to serious medical needs"); Hare v. City of Corinth, Miss., 74
    F.3d 633, 649 (5th Cir. 1996) (en banc) ("Though Farmer dealt
    specifically with a prison official's duty under the Eighth
    Amendment to provide a convicted inmate with humane conditions of
    confinement, we conclude that its subjective definition of
    deliberate indifference provides the appropriate standard for
    measuring the duty owed to pretrial detainees under the Due
    Process Clause.").

                                   16
1    City of Corinth, Mississippi, 74 F.3d 633 (5th Cir. 1996) (en

2    banc):

 3             [D]espite the distinct constitutional sources
 4             of the rights of pretrial detainees and
 5             convicted inmates, state jail and prison
 6             officials owe the same duty to provide the
 7             same quantum of basic human needs and humane
 8             conditions of confinement to both
 9             groups. . . . That pretrial detainees may
10             have more protections or rights in
11             general . . . does not mean that they are
12             entitled to greater protection of rights
13             shared in common with convicted inmates. For
14             purposes of measuring constitutional duties,
15             our case law and the teachings of the Supreme
16             Court indicate that there is no legally
17             significant situation in which a failure to
18             provide an incarcerated individual with
19             medical care or protection from violence
20             is punishment yet is not cruel and unusual.
21             The fact of conviction ought not make one
22             more amenable under the Constitution to
23             unnecessary random violence or suffering, or
24             to a greater denial of basic human needs.

25   Id. at 649 (citations omitted; emphasis in original).

26             We thus reaffirm the position that we expressed in

27   Arroyo:   Claims for deliberate indifference to a serious medical

28   condition or other serious threat to the health or safety of a

29   person in custody should be analyzed under the same standard

30   irrespective of whether they are brought under the Eighth or

31   Fourteenth Amendment.   Because the Supreme Court in Farmer

32   articulated the proper standard for analyzing such claims under

33   the Eighth Amendment -- a standard that we have already applied

34   in Cuoco to a Fifth Amendment due process case -- we adopt that

35   standard in this case under the Due Process Clause of the

36   Fourteenth Amendment.


                                     17
1               III.   The Standard Applied

2               There are two elements to a claim of deliberate

3    indifference to a serious medical condition:    "[The plaintiff]

4    must show that she [or he] had a 'serious medical condition' and

5    that it was met with 'deliberate indifference.'"    Cuoco, 222 F.3d

6    at 106.   Here, there is no dispute that Caiozzo had a serious

7    medical condition.    The question is therefore whether a

8    reasonable juror could show that Cummins was deliberately

9    indifferent to that condition, which, under the Farmer test,

10   means that she "kn[ew] of and disregard[ed] an excessive risk to

11   [Caiozzo's] health or safety" and that she was "both . . . aware

12   of facts from which the inference could be drawn that a

13   substantial risk of serious harm exist[ed], and . . . also dr[e]w

14   the inference."    Farmer, 511 U.S. at 837.

15              Most of the evidence offered by the plaintiff was in

16   support of the argument that Cummins should have been aware that

17   Caiozzo was in immediate danger of alcohol withdrawal.      A

18   reasonable juror might have concluded that this was the case.

19   There is virtually no evidence, however, to support a conclusion

20   by a reasonable juror that Cummins was actually aware of that

21   immediate danger.    The evidence is clear that she thought,

22   wrongly it turned out, that Caiozzo was intoxicated and therefore

23   not in danger of an imminent severe alcohol withdrawal reaction.

24   No reasonable juror could conclude that the Farmer test has been

25   met.



                                      18
1                              CONCLUSION

2             For the foregoing reasons, the judgment of the district

3   court is affirmed.




                                   19
