                                      PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-6957


ALBERT ANDERSON,

            Plaintiff - Appellant,

v.

DEPUTY M. KINGSLEY, Deputy Sheriff of Gloucester County; DEPUTY
STEWART, Deputy Sheriff of Gloucester County,

            Defendants - Appellees,

and

D.W. WARREN, JR., Sheriff of Gloucester County; JOHN DOE #1, Unnamed
deputy, employee or agent of D.W. Warren, Jr., and/or Gloucester County; JANE
DOE #2, Unnamed deputy, employee or agent of D.W. Warren, Jr. and/or
Gloucester County,

            Defendants.


Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Douglas E. Miller, Magistrate Judge. (4:14-cv-00028-DEM)


Argued: October 24, 2017                               Decided: December 14, 2017


Before NIEMEYER, TRAXLER, and WYNN, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Traxler and Judge Wynn joined.
ARGUED: Andrew Mitchell Hendrick, SHUTTLEWORTH, RULOFF, SWAIN,
HADDAD & MORECOCK, P.C., Virginia Beach, Virginia, for Appellant. Jeff W.
Rosen, PENDER & COWARD, P.C., Virginia Beach, Virginia, for Appellees. ON
BRIEF: Robert J. Haddad, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, P.C., Virginia Beach, Virginia, for Appellant. Lisa Ehrich, PENDER &
COWARD, P.C., Virginia Beach, Virginia, for Appellees.




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NIEMEYER, Circuit Judge:

       The question presented in this appeal is whether the district court properly

instructed the jury on the definition of “deliberate indifference,” as required for proving

that prison officials are liable under the Eighth Amendment for failing to protect an

inmate from a fellow inmate’s assault.

       After Albert Anderson was assaulted by a fellow inmate in Gloucester County Jail

in Virginia, sustaining serious injury, he commenced this action under 42 U.S.C. § 1983

against two Gloucester County Sheriff’s deputies, alleging that they acted with deliberate

indifference to his health and safety, in violation of the Eighth Amendment’s prohibition

against “cruel and unusual punishments.” At trial, the district court instructed the jury on

the required element of deliberate indifference, stating that “[d]eliberate indifference is

established only if the defendants . . . had actual knowledge of a substantial risk that

Anderson would be injured . . . and if the defendants recklessly disregarded that risk by

intentionally refusing or failing to take reasonable measures to deal with the risk.”

(Emphasis added). Anderson objected to the inclusion of the word “intentionally,” and,

following a jury verdict for the defendants, now appeals the district court’s ruling

overruling his objection.

       For the reasons that follow, we conclude that the district court’s instruction

adequately and fairly stated the controlling law and therefore affirm.




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                                                 I

       Anderson alleged that, on May 15, 2012, he complained to a Sheriff’s deputy that

a fellow inmate, Richard Rilee, had threatened him, and he therefore requested that he be

moved to a cell block apart from Rilee’s. While another Sheriff’s deputy promptly

moved Anderson as requested, neither deputy put Rilee’s name on the jail’s enemies list,

as Anderson claims they should have.

       Two days later, when Anderson and other inmates, including Rilee, were being

escorted in a prison hallway, Rilee grabbed Anderson from behind and slammed his head

on the concrete floor, causing serious injury.

       Anderson commenced this action against the two Sheriff’s deputies under 42

U.S.C. § 1983, alleging that the prison officials had breached their duty to protect him

from Rilee’s attack in violation of the Eighth Amendment’s prohibition against “cruel

and unusual punishments.” He claimed that the defendants were liable “under a theory of

acts of deliberate indifference” in that they “were actually aware of a substantial risk of

harm to [him], and failed to reasonably respond to the risk, which proximately resulted in

[his] injuries.” He sought $3 million in damages.

       At trial, the district court instructed the jury on the requirements for proving an

Eighth Amendment claim, stating:

       Mr. Anderson, as an inmate in the Gloucester County Jail, had a right under
       the Eighth Amendment to be protected from attacks by other inmates, but
       he may only recover from these defendants if they knew of a substantial
       risk of serious harm to him while in custody and failed or refused to take
       reasonable measures to prevent that harm.




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       Your verdict must be for the plaintiff, Albert Anderson, and against the
       defendants . . . if Mr. Anderson has proved by a preponderance of the
       evidence all of the following elements of his claim:

       First, an inmate, Richard Rilee, struck or assaulted the plaintiff, Albert
       Anderson; and

       Second, the defendants, . . . . knew of a substantial risk of serious harm
       from an attack by that inmate, Rilee, before it happened; and

       Third, the defendants, with deliberate indifference to Mr. Anderson’s need
       to be protected from such an attack by Rilee, failed to take reasonable steps
       to protect him; and

       Fourth, the failure proximately caused the plaintiff, Mr. Anderson, to be
       injured.

                                        *       *       *

       Deliberate indifference is established only if the defendants . . . had actual
       knowledge of a substantial risk that Anderson would be injured by Rilee
       and if the defendants recklessly disregarded that risk by intentionally
       refusing or failing to take reasonable measures to deal with the risk. Mere
       negligence or inadvertence does not constitute deliberate indifference.

(Emphasis added). Counsel for Anderson objected to the court’s inclusion of the word

“intentionally,” stating, “Our main objection is to having anything about ‘intentionally.’

I think the standard is clearly less than intentional . . . . Reckless is something less than

intentional.”   The court overruled Anderson’s objection, stating that it believed the

instruction correctly reflected the law.

       At the conclusion of the trial, the jury returned a verdict for the defendants, and

the court entered judgment in their favor on June 13, 2016.

       Anderson filed this appeal, challenging solely the deliberate indifference

instruction that the district court gave to the jury.



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                                             II

       We review de novo “whether the district court’s instructions to the jury were

correct statements of law,” determining “whether taken as a whole and in the context of

the entire charge, the instructions accurately and fairly state[d] the controlling law.”

United States v. Blankenship, 846 F.3d 663, 670–71 (4th Cir. 2017) (internal quotation

marks and citations omitted).     Because Anderson contends that the jury instruction

defining “deliberate indifference” failed accurately and fairly to state the controlling law,

we focus on the elements of his Eighth Amendment claim.

       In his complaint, Anderson alleged that despite his notice to prison officials that a

fellow inmate was hostile to him and had threatened him with violence, he was placed in

the vicinity of that inmate, who then assaulted and seriously injured him. He alleged that

the officials knew that he faced substantial risk of being harmed when they allowed him

and the fellow inmate to be in the same location and were deliberately indifferent to that

risk, thereby breaching their duty under the Eighth Amendment to guarantee his safety.

       The Eighth Amendment, which is applicable to the States through the Fourteenth

Amendment, prohibits the infliction of “cruel and unusual punishments.” U.S. Const.

amend. VIII; see Robinson v. California, 370 U.S. 660, 666 (1962).             Punishments

implicating the Eighth Amendment are not limited to the sentences actually handed down

by the sentencing court but may also include “deprivations . . . suffered [by inmates]

during imprisonment.” Wilson v. Seiter, 501 U.S. 294, 297 (1991); see also Estelle v.

Gamble, 429 U.S. 97, 103–04 (1976). In this vein, for example, the Estelle Court held



                                             6
that “deliberate indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” 429

U.S. at 104 (citation omitted). As it explained:

       This is true whether the indifference is manifested by prison doctors in their
       response to the prisoner’s needs or by prison guards in intentionally
       denying or delaying access to medical care or intentionally interfering with
       the treatment once prescribed.

Id. at 104–05 (emphasis added). And like inadequate medical care, inadequate conditions

of confinement can also constitute a cruel and unusual punishment. See Wilson, 501 U.S.

at 303. But again, Eighth Amendment liability “must involve more than ordinary lack of

due care for the prisoner’s interests or safety. . . . It is obduracy and wantonness, not

inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel

and Unusual Punishments Clause.” Id. at 299 (quoting Whitney v. Albers, 475 U.S. 312,

319 (1986)).

       A prisoner seeking to prove a violation of the Eighth Amendment must satisfy an

objective requirement of showing that the deprivation that he suffered in prison was

“sufficiently serious” and a subjective requirement of showing that the defendant had a

“sufficiently culpable state of mind,” Wilson, 501 U.S. at 298, so as to ensure that the

deprivation qualifies as a punishment implicating the Eighth Amendment, see id. at 299–

301; see also Farmer v. Brennan, 511 U.S. 825, 834 (1994); Cox v. Quinn, 828 F.3d 227,

235–36 (4th Cir. 2016). Indeed, as to the subjective requirement, the Supreme Court has

recognized that to be held liable under the Eighth Amendment, the prison official must

have had a “criminal-law mens rea.” Farmer, 511 U.S. at 839; see also Wilson, 501 U.S.



                                             7
at 302–03. For claims challenging conditions of confinement, this mens rea may be

demonstrated by showing either intentional conduct or criminally reckless conduct (as

distinct from recklessness as defined in the civil law). Farmer, 511 U.S. at 836–40. The

Farmer Court explained that the “civil law generally calls a person reckless who acts or

(if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm

that is either known or so obvious that it should be known,” whereas “[t]he criminal law

. . . generally permits a finding of recklessness only when a person disregards a risk of

harm of which he is aware,” emphasizing the distinction between objective and subjective

recklessness. Id. at 836–37 (emphasis added). It concluded that “subjective recklessness

as used in the criminal law is a familiar and workable standard that is consistent with the

Cruel and Unusual Punishments Clause as interpreted in [the Court’s] cases.” Id. at 839–

40.

       The Supreme Court in Farmer thus relied on criminal-law recklessness in defining

“deliberate indifference,” the minimum mens rea or state of mind necessary for claims

like the one before us. 511 U.S. at 839–40. Providing the test for determining deliberate

indifference, the Farmer Court stated:

       [A] prison official cannot be found liable under the Eighth Amendment for
       denying an inmate humane conditions of confinement unless the official
       knows of and disregards an excessive risk to inmate health or safety; the
       official must both be 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.

Id. at 837. In addition, the prison official must “consciously disregard” that known risk

of serious harm. Id. at 839 (emphasis added) (brackets omitted) (quoting Model Penal



                                               8
Code § 2.02(2)(c)). An accidental or inadvertent response to a known risk is insufficient

to create Eighth Amendment liability. See id. at 840–41; see also Cox, 828 F.3d at 236.

      Not only is the criminal-law standard for recklessness “familiar and workable,”

Farmer, 511 U.S. at 839, it is also unambiguous. As Professor Wayne LaFave describes

the criminal-law standard:

      [C]rimes defined so as to require that the defendant intentionally cause a
      forbidden bad result are usually interpreted to cover one who knows that his
      conduct is substantially certain to cause the result, whether or not he
      desires the result to occur. “Recklessness” in causing a result exists when
      one is aware that his conduct might cause the result, though it is not
      substantially certain to happen. . . . Thus, while “knowledge” and the
      knowing-type of “intention” require a consciousness of almost-certainty,
      recklessness requires a consciousness of something far less than certainty or
      even probability.

1 Wayne R. LaFave, Substantive Criminal Law § 5.4(f), at 376–77 (2d ed. 2003)

(footnote omitted). Thus, criminally reckless conduct may be exemplified by the conduct

of a person who deliberately drives his automobile while intoxicated, knowing well that

such conduct might result in harm but who does not intend to cause such harm. His

conduct is intentional with respect to taking a known risk, but unintentional as to the

resulting harm.

      Clark & Marshall’s criminal law treatise similarly explains criminal recklessness:

      Usually wanton or reckless conduct consists of an affirmative act, like
      driving an automobile or discharging a firearm, in disregard of probable
      harmful consequences to another. But where . . . there is a duty of care for
      the safety of [others], wanton or reckless conduct may consist of intentional
      failure to take care in disregard of the probable harmful consequences to
      them or of their right to care.

                                     *     *      *



                                           9
       What must be intended is the conduct, not the resulting harm.


Clark & Marshall, A Treatise on the Law of Crimes § 5.08, at 256 (6th ed. 1958)

(emphasis added) (citations omitted); see also Model Penal Code § 2.02(2)(c).

       Our decisions reflect these principles from Farmer and the criminal-law concept

of recklessness that Farmer adopted. In Parrish ex rel. Lee v. Cleveland, 372 F.3d 294

(4th Cir. 2004), we noted that, under the deliberate indifference standard, the prison

official must have both “subjectively recognized a substantial risk of harm” and

“subjectively recognized that his actions were ‘inappropriate in light of that risk.’” Id. at

303 (emphasis added) (quoting Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997)

(“True subjective recklessness requires knowledge both of the general risk, and also that

the conduct is inappropriate in light of that risk”)); see also Cox, 828 F.3d at 236 (“[I]n

addition to subjectively recognizing that substantial risk, the prison official must also

subjectively be aware that ‘his actions were inappropriate in light of that risk’”). Under

these decisions, the subjective recognition of the inappropriateness of the measures taken

in response to a known substantial risk of harm is tantamount to a deliberate or

intentional failure to act appropriately, with indifference (rather than intent) as to whether

any harm will occur.

       Reckless conduct in the criminal law is thus distinct from intentional conduct

based on the knowledge vel non of the consequences flowing from deliberately taking a

known risk: recklessness is the intentional taking of a risk that might result in harm,

whereas intentional conduct, at a minimum, involves the intentional taking of a risk that



                                             10
is substantially certain to result in harm. See LaFave, supra, § 5.4(f), at 376. The

essence of such recklessness is a conscious carelessness of consequence. It is also

distinct from negligence based on the requirement that the disregard of risk be deliberate;

without a deliberate or intentional disregard of the risk, the conduct becomes merely

negligent, which fails to satisfy the mens rea required for deliberate indifference. See

Parrish, 372 F.3d at 306–07 (noting that “an officer’s response to a perceived risk must

be more than merely negligent or simply unreasonable” to qualify as deliberate

indifference).

       In sum, the “deliberate indifference” defined by Farmer may be characterized by

three components: (1) the subjective knowledge of a substantial risk of serious harm; (2)

the conscious disregard of that risk; and (3) the absence of intent to cause the harm

risked. More concisely, Farmer defines deliberate indifference as the intentional taking

of a risk that the defendant knows might cause harm while lacking any intent to cause

such harm.

       Applying these principles to the case before us, we conclude that the district court

adequately informed the jury of the correct definition of “deliberate indifference” as it

relates to Eighth Amendment liability. In its instructions, the district court began by

correctly explaining Farmer’s holding by stating that an inmate such as Anderson “had a

right under the Eighth Amendment to be protected from attacks by other inmates, but he

may only recover from these defendants if they knew of a substantial risk of serious harm

to him while in custody and failed or refused to take reasonable measures to prevent that

harm.” Then, breaking down the elements of an Eighth Amendment claim, the court


                                            11
again stated that Anderson must show that the defendants “knew of a substantial risk of

serious harm from an attack by . . . Rilee[] before it happened” and also that “the

defendants, with deliberate indifference to Mr. Anderson’s need to be protected from

such an attack by Rilee, failed to take reasonable steps to protect him.” Finally, the court

stated:

          Deliberate indifference is established only if the defendants, either both
          defendants or one of them, had actual knowledge of a substantial risk that
          Anderson would be injured by Rilee and if the defendants recklessly
          disregarded that risk by intentionally refusing or failing to take reasonable
          measures to deal with the risk. Mere negligence or inadvertence does not
          constitute deliberate indifference.

Taken together, these instructions fairly conveyed Farmer’s basic holding that

“deliberate indifference” requires proof that the prison official knew that the inmate faced

“a substantial risk of serious harm” but responded by “consciously disregard[ing]” that

known risk. Farmer, 511 U.S. at 837, 839.

          Moreover, in giving its deliberate indifference instruction, the district court quoted

nearly verbatim a model jury instruction that is commonly used by trial courts to instruct

juries on “deliberate indifference.” See 3B Kevin F. O’Malley et al., Federal Jury

Practice and Instructions § 166:30, at 648 (6th ed. 2013). *


          *
              This model instruction provides:

          Deliberate indifference is established only if there is actual knowledge of a
          substantial risk that plaintiff __ [describe serious medical problem or other
          serious harm that defendant is expected to prevent] and if defendant prison
          officials disregard that risk by intentionally refusing or failing to take
          reasonable measures to deal with the problem. Mere negligence or
          inadvertence does not constitute deliberate indifference.



                                                 12
       Anderson contends that the district court erroneously raised the deliberate

indifference standard from a recklessness standard to one requiring intentional conduct

by including the single word “intentionally” before the word “refusing” in the portion of

the instruction that stated that “[d]eliberate indifference is established only if the

defendants . . . had actual knowledge of a substantial risk that Anderson would be injured

by Rilee and if the defendants recklessly disregarded that risk by intentionally refusing or

failing to take reasonable measures to deal with the risk.” (Emphasis added). According

to Anderson, by including the word “intentionally,” the jury was led to “believ[e] that it

had to conclude that the Defendants intended [for] Anderson to be hurt” or that they

“intended that the attack on [him] take place.”

       Of course, if the instruction could be read to require an intent to harm or an intent

that the attack on Anderson take place, Anderson’s objection would be well taken. But

this interpretation is simply not supported. The word “intentionally” is an adverb placed

before “refusing or failing” and therefore could be taken to modify “refusing” or both

“refusing” and “failing.” But it cannot be construed as requiring that the defendants must

have intended for Anderson to be harmed.          Rather, the instruction states that the

defendants must have intended their response (i.e., refusing or failing to take reasonable

measures) to the known risk, which is consistent with the Supreme Court’s direction that

deliberate indifference requires proof that the defendant “consciously disregard” the

known risk. Farmer, 511 U.S. at 839. The instruction is thus entirely consistent with

criminal recklessness, as demonstrated above.




                                            13
         Parsing the instruction phrase by phrase and word by word, as Anderson seeks to

do, disregards the meaning of the instruction as a whole, which was faithful to Farmer.

While “[i]t is easy enough to pick at words, phrases, and sentences in a charge,” we must

understand that the jury heard “the charge in its totality.” Noel v. Artson, 641 F.3d 580,

586 (4th Cir. 2011).

         We conclude accordingly that the district court’s instruction on deliberative

indifference — which properly incorporated the criminal recklessness standard and

tracked the model instruction in Federal Jury Practice and Instructions — adequately

and fairly stated the controlling law. We therefore affirm the judgment of the district

court.

                                                                             AFFIRMED




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