3d Cir. Model Jury Instr. (Civil) 4.11.3

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Last updated March 2026

“[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate 1

humane conditions of confinement unless the official knows of and disregards an excessive risk to 2

inmate health or safety; the official must both be aware of facts from which the inference could be 3

drawn that a substantial risk of serious harm exists, and he must also draw the inference. ” Id. at 4

837.202 However, the plaintiff “need not show that a prison official acted or failed to act believing 5

that harm actually would befall an inmate; it is enough that the official acted or failed to act despite 6

his knowledge of a substantial risk of serious harm.” Id. at 842. In sum, “a prison official may be 7

held liable under the Eighth Amendment for denying humane conditions of confinement only if 8

he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to 9

take reasonable measures to abate it.” Id. at 847. 10

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The plaintiff can use circumstantial evidence to prove subjective recklessness: The jury is 12

entitled to “conclude that a prison official knew of a substantial risk from the very fact that the risk 13

was obvious.” Id. at 842. 203 For example, if the “plaintiff presents evidence showing that a 14

substantial risk of inmate attacks was ‘ longstanding, pervasive, well -documented, or expressly 15

noted by prison officials in the past, and the circumstances suggest that the defendant-official being 16

sued had been exposed to information concerning the risk and thus “must have known” about it, 17

then such evidence could be sufficient to permit a trier of fact to find that the defendant -official 18

had actual knowledge of the risk.’ ” Id. at 842-43 (quoting respondents’ brief).204 19

202 The subjective “deliberate indifference” standard for Eighth Amendment conditions of

confinement claims is distinct from the objective “deliberate indifference” standard for municipal

liability through inadequate training, supervision or screening. See Farmer , 511 U.S. at 840- 41

(distinguishing City of Canton v. Harris, 489 U.S. 378 (1989)); Comment 4.6.7 & Comment 4.6.8,

supra.

203 The fact that the plaintiff did not notify the defendant in advance concerning the risk

of attack does not preclude a finding of subjective recklessness. See Farmer , 511 U.S. at 848;

Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997).

204 See also Hamilton v. Leavy , 117 F.3d 742, 748 (3d Cir. 1997) (holding that such

evidence precluded summary judgment for defendant). As the Court of Appeals has stated the

standard, “using circumstantial evidence to prove deliberate indifference requires more than

evidence that the defendants should have recognized the excessive risk and responded to it; it

requires evidence that the defendant must have recognized the excessive risk and ignored it.”

Beers-Capitol v. Whetzel, 256 F.3d 120, 138 (3d Cir. 2001). Cf. Shorter v. United States, 12 F.4th

366 (3d Cir. 2021) (holding, in a Bivens action, that a transgender woman housed in a room with

eleven men, adequately alleged deliberate indifference by alleging that she repeatedly told prison

officials about the risks she faced and that defendants explicitly acknowledged her risk of sexual