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                                                              [PUBLISH]
                                    In the
                 United States Court of Appeals
                          For the Eleventh Circuit

                           ____________________

                                  No. 21-14275
                           ____________________

        BETTY WADE,
        in her capacity as Personal Representative of the Estate of David
        Henegar,
                                                       Plaintiff-Appellant,
        versus
        CINDY MCDADE, et al.,


                                                   Defendants-Appellees.
                           ____________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                      D.C. Docket No. 4:18-cv-00192-AT
                           ____________________
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        2                         Opinion of the Court                       21-14275

        Before WILLIAM PRYOR, Chief Judge, and WILSON, JORDAN,
        ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
        BRASHER, ABUDU, and TJOFLAT,∗ Circuit Judges.
        NEWSOM, Circuit Judge, delivered the opinion of the Court, in
        which WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSENBAUM,
        JILL PRYOR, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ABUDU and
        TJOFLAT, Circuit Judges, joined.
        JORDAN, Circuit Judge, filed a concurring opinion, in which
        ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges, joined.
        ROSENBAUM, Circuit Judge, filed a concurring opinion in which JILL
        PRYOR and ABUDU, Circuit Judges, joined.
        NEWSOM, Circuit Judge, filed a concurring opinion.


        NEWSOM, Circuit Judge:
               We granted rehearing en banc to resolve a question that,
        while simply stated, has bedeviled panels of this Court for the bet-
        ter part of the last three decades: “What is the standard for estab-
        lishing liability on an Eighth Amendment deliberate-indifference
        claim?” For reasons we’ll explain, we now hold, in accordance with
        the Supreme Court’s decision in Farmer v. Brennan, that in addition
        to an “objectively serious” deprivation, a deliberate-indifference
        plaintiff must show that the defendant acted with “subjective

        ∗ Senior Circuit Judge Gerald B. Tjoflat elected to participate in this decision
        pursuant to 

(c).
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        21-14275                Opinion of the Court                          3

        recklessness as used in the criminal law,” 

 (1994),
        and that in order to do so, the plaintiff must demonstrate that the
        defendant actually knew that his conduct—his own acts or omis-
        sions—put the plaintiff at substantial risk of serious harm. We add
        the caveat, likewise prescribed by Farmer, that even if the defendant
        “actually knew of a substantial risk to inmate health or safety,” he
        cannot be found liable under the Cruel and Unusual Punishments
        Clause if he “responded reasonably to th[at] risk.” 

.
                                           I
               Because we took this case en banc solely to clarify our incon-
        sistent precedent and to answer a discrete question of law, and be-
        cause we will remand for application of the Eighth Amendment
        standard that we adopt, we needn’t belabor the particular facts of
        this case. It will suffice for present purposes to say that over a four-
        day period in August 2016, during his incarceration at Walker State
        Prison in Georgia, an inmate named David Henegar failed to re-
        ceive his daily seizure medication, Dilantin, which he had been pre-
        scribed to treat epilepsy. Late on the fourth day, Henegar suffered
        two seizures that he said caused him permanent brain damage. See
        Wade v. McDade, 

, 1366–69 (11th Cir. 2023), vacated
        and reh’g en banc granted, 

 (11th Cir. 2023).
               Proceeding under 

, Henegar sued five prison
        employees—two corrections officers and three nurses—arguing
        that by failing to ensure that he got his Dilantin they had exhibited
        “deliberate indifference” to his medical needs in violation of the
        Eighth Amendment. The district court granted summary
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        4                      Opinion of the Court                  21-14275

        judgment to all defendants on the ground that they were entitled
        to qualified immunity. In particular, the court held that even if one
        or more of the defendants had violated the Constitution, the law in
        August 2016 was insufficiently “clearly established” to give them
        fair notice of the unlawfulness of their conduct: “Assuming De-
        fendants’ conduct here constituted deliberate indifference to a seri-
        ous medical need in violation of Plaintiff’s Eighth Amendment
        rights, Plaintiff has failed to point to any law applicable to the cir-
        cumstances presented in this case that clearly established the al-
        leged violation of Plaintiff’s rights.” Doc. 168 at 31.
                Shortly after the district court rendered its decision, Henegar
        died from causes unrelated to the seizures that he suffered while in
        prison. Betty Wade—Henegar’s sister and the personal representa-
        tive of his estate—assumed responsibility for his suit, and on appeal
        she contended that the district court had erred in granting the de-
        fendants summary judgment. A panel of this Court affirmed the
        district court’s decision on the ground that Wade hadn’t shown
        that the prison officials violated Henegar’s Eighth Amendment
        rights, without reaching the question whether those rights were
        sufficiently “clearly established” to defeat qualified immunity. See
        Wade, 67 F.4th at 1374–78. Importantly for present purposes, in
        the course of so doing, the panel noted a deep and entrenched in-
        tracircuit split concerning one of the necessary elements of an in-
        mate’s deliberate-indifference claim. In particular, the panel ob-
        served that “[f]or more than 25 years now, our case law regarding
        a deliberate-indifference claim’s mens rea element has been hope-
        lessly confused, resulting in what we’ll charitably call a ‘mess.’” 

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        21-14275              Opinion of the Court                        5

        at 1371. More particularly still, the panel explained that our deci-
        sions had “flip-flop[ped] between two competing formulations”—
        one requiring an inmate to show that a prison official acted with
        “more than mere negligence,” and the other requiring proof that he
        acted with “more than gross negligence.” 

 Applying its best un-
        derstanding of the prior-panel-precedent rule, the panel held that a
        deliberate-indifference plaintiff must demonstrate, among other
        things, that the defendant “acted with more than gross negligence.”
        

.
               A majority of the active judges of this Court subsequently
        voted to vacate the panel’s opinion and rehear the case en banc.
        See Wade v. McDade, 

 (11th Cir. 2023). We instructed
        the parties “not [to] concern themselves with the application of the
        ‘prior panel precedent rule’” and directed them instead to address
        the following question of law: “What is the standard for establish-
        ing liability on an Eighth Amendment deliberate-indifference
        claim?”
              Sitting as a full Court, we now answer that question.
                                         II

                In relevant part, the Eighth Amendment forbids the “in-
        flict[ion]” of “cruel and unusual punishments.” U.S. Const. amend
        VIII. The Supreme Court first held in Estelle v. Gamble that the
        Cruel and Unusual Punishments Clause should be understood to
        prohibit government officials from exhibiting “deliberate indiffer-
        ence to [the] serious medical needs of prisoners.” 

, 104–
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        6                       Opinion of the Court                  21-14275

        05 (1976). In Farmer v. Brennan, the Court later clarified that “a
        prison official violates the Eighth Amendment only when two re-
        quirements are met.” 

 (1994). As an initial matter,
        the Court said, “the deprivation alleged must be, objectively, ‘suf-
        ficiently serious.’” 

 (citation omitted). Separately, the Court ex-
        plained, “[t]o violate the Cruel and Unusual Punishments Clause,
        a prison official must have a ‘sufficiently culpable state of mind”—
        i.e., “deliberate indifference.” 

 (citations omitted). All here agree
        that Henegar’s unmedicated epilepsy presents an objectively seri-
        ous medical need and, therefore, that Farmer’s first requirement is
        satisfied. This case requires an assessment of Farmer’s second, “de-
        liberate indifference” requirement.
               For decades, our own precedent has been marred by internal
        inconsistency regarding the showing that a prison inmate must
        make to demonstrate that prison officials were deliberately indif-
        ferent in violation of the Eighth Amendment. We have typically
        subdivided Farmer’s deliberate-indifference requirement into three
        sub-requirements. First, we have said, the inmate must prove that
        the official was subjectively aware that the inmate was at risk of
        serious harm. See, e.g., Hoffer v. Sec’y, Fla. Dep’t of Corr., 

 (11th Cir. 2020). Second, we have held that the inmate
        must show that the official disregarded that risk. See, e.g., 

 And
        third—enter the dissonance—we have said that the inmate must
        demonstrate that the official acted with more than some requisite
        level of negligence. With respect to this third sub-requirement, our
        precedent reflects a persistent split between cases holding that the
        inmate must prove that the official’s conduct reflected “more than
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        21-14275               Opinion of the Court                          7

        mere negligence” and those holding that the inmate must demon-
        strate that the official acted with “more than gross negligence.” See
        Wade, 67 F.4th at 1371.
               In light of the intracircuit split, we granted rehearing en banc
        to clarify “the standard for establishing liability on an Eighth
        Amendment deliberate-indifference claim.” Having reconsidered
        the issue, we now repudiate our dueling “more than” formulations
        and hold instead that a deliberate-indifference plaintiff must prove
        that the defendant acted with “subjective recklessness as used in
        the criminal law,” Farmer, 

, and that in order to do
        so, the plaintiff must show that the defendant was subjectively
        aware that his own conduct put the plaintiff at substantial risk of
        serious harm—with the caveat that, in any event, a defendant who
        “respond[s] reasonably” to a risk, 

, even a known risk,
        “cannot be found liable” under the Eighth Amendment, 

.
                                          A
               We lost our way—and bollixed our caselaw—by straying
        from Farmer, so we begin with a detailed review of the Supreme
        Court’s decision there. It was in Farmer that the Court first set out
        to explain the “deliberate indifference” standard that it had earlier
        adopted in Estelle. The Court held that even if the Eighth Amend-
        ment was originally understood to apply only to “punishments”
        imposed as part of a criminal conviction and sentence, the caselaw
        had since “settled that the treatment a prisoner receives in prison
        and the conditions under which he is confined are subject to scru-
        tiny under” that provision. 

 (quotation marks omitted).
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        8                      Opinion of the Court                  21-14275

        The Court clarified, however, that not every injury suffered by an
        inmate at the hands of his jailors violates the Constitution. Rather,
        the Court said, “a prison official violates the Eighth Amendment
        only when two requirements are met.” 

. To satisfy the
        first, the Court explained, the inmate must establish that the depri-
        vation he allegedly suffered was “objectively, ‘sufficiently serious.’”
        

 (quoting Wilson v. Seiter, 

 (1991)). “The second
        requirement,” the Court emphasized, “follows from the principle
        that ‘only the unnecessary and wanton infliction of pain implicates
        the Eighth Amendment.’” 

 (quoting Wilson, 

).
        Focusing its attention on this second requirement, the Farmer
        Court held that “[t]o violate the Cruel and Unusual Punishments
        Clause, a prison official must have a ‘sufficiently culpable state of
        mind”—namely, it said, “‘deliberate indifference.’” 

 (citation
        and internal quotation marks omitted). Accordingly, the Court
        clarified, “[t]he question under the Eighth Amendment is whether
        prison officials, acting with deliberate indifference, exposed a pris-
        oner to a sufficiently substantial ‘risk of serious damage to his fu-
        ture health.’” Id. at 843 (citation omitted).
                Importantly for our purposes, the Farmer Court then “un-
        dert[ook] to define” the “proper test for deliberate indifference.”
        Id. at 834. The Court began by observing that, on the one hand,
        “deliberate indifference describes a state of mind more blamewor-
        thy than negligence” but, on the other, “is satisfied by something
        less than acts or omissions for the very purpose of causing harm or
        with knowledge that harm will result.” Id. at 835. The Court noted
        that “[w]ith deliberate indifference lying somewhere between the
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        21-14275                Opinion of the Court                          9

        poles of negligence at one end and purpose or knowledge at the
        other,” the lower courts had “routinely equated deliberate indiffer-
        ence with recklessness.” Id. at 836. That was correct as far as it
        went, the Farmer Court said, but it didn’t “fully answer the . . . ques-
        tion about the level of culpability deliberate indifference entails”
        because, the Court explained, “the term recklessness is not self-de-
        fining.” Id. 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.” Id. (emphasis added). By contrast, the “crimi-
        nal law . . . generally permits a finding of recklessness only when a
        person disregards a risk of harm of which he is aware.” Id. at 836–37
        (emphasis added).
               The Farmer Court expressly “reject[ed] . . . [the] invitation to
        adopt an objective test for deliberate indifference” of the sort em-
        ployed in the civil law and held instead that the Eighth Amendment
        requires proof of “subjective recklessness as used in the criminal
        law.” Id. at 837, 839. A subjective-recklessness standard, the Court
        repeatedly emphasized, “comports best with the text of the
        Amendment as our cases have interpreted it.” Id. at 837. In partic-
        ular, the Court said, “[t]he Eighth Amendment does not outlaw
        cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘pun-
        ishments.’” Id. “[A]n official’s failure to alleviate a significant risk
        that he should have perceived but did not, while no cause for com-
        mendation, cannot under our cases be condemned as the infliction
        of punishment.” Id. at 838. “[A] subjective approach,” the Court
        stressed, “isolates those who inflict punishment,” and thus
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        10                      Opinion of the Court                    21-14275

        “ensure[s] that only inflictions of punishment carry liability.” Id. at
        839, 841.
                Having settled on and explained the subjective-recklessness
        standard, the Farmer Court then appended a coda of sorts: Even a
        “prison official[] who actually knew of a substantial risk to inmate
        health or safety may be found free of liability if [he] responded rea-
        sonably to the risk, even if the harm ultimately was not averted.”
        Id. at 844. Put slightly differently, a “prison official[] who act[s] rea-
        sonably cannot be found liable under the Cruel and Unusual Pun-
        ishments Clause.” Id. at 845.
                                            B
                Helpfully, the parties here agree on several key points. First,
        they agree that Farmer adopted a criminal-recklessness standard,
        which requires the plaintiff inmate to prove that the defendant
        prison official actually knew of a substantial risk of serious harm, not
        just that he should have known. See, e.g., Br. of Appellant at 12 (ob-
        serving that Farmer prescribes a “criminal recklessness standard”);
        Br. of Appellee 2 (“criminal recklessness”); Reply Br. of Appellant
        at 2 (“The parties agree . . . [that] the standard to prove deliberate
        indifference is criminal recklessness.”). Second, and relatedly, the
        parties agree that we should scrap our confusing negligence-based
        formulations—whether “more than mere” or “more than gross”—
        in favor of a return to Farmer’s criminal-recklessness benchmark.
        See, e.g., Br. of Appellant at 26–32; Br. of Appellee at 2, 19, 32. Fi-
        nally, they agree that even if a prison official had the requisite sub-
        jective awareness of the risk to the inmate, he cannot be held liable
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        21-14275                Opinion of the Court                         11

        under the Eighth Amendment if he responded reasonably to that
        risk. See, e.g., Br. of Appellant at 26; Br. of Appellee at 34–36.
               The parties’ key disagreement pertains to the identification
        of the “risk” of which the prison officials must have been subjec-
        tively aware. Is it sufficient, as Wade contends, that the official
        knew that the inmate faced a substantial risk of serious harm, what-
        ever its cause or origin? Or, as the state insists, must the inmate
        show instead that the official knew that his own conduct—his own
        acts or omissions—caused a substantial risk of serious harm to the
        inmate?
                 Wade maintains that she need only show here that the
        prison officials knew “that Mr. Henegar faced a substantial risk of
        serious harm because he was not receiving his seizure medication”
        and then failed to take reasonable steps to secure it for him. Br. of
        Appellant at 37; accord, e.g., Reply Br. of Appellant at 5 (arguing that
        a prison official need only “be aware that the inmate was not re-
        ceiving medication necessary to manage [a] medical condition”).
        So, for instance, Wade asserts that it is enough that the corrections
        officers were “aware that Mr. Henegar’s Dilantin was missing” and,
        similarly, that two of the nurses “were aware that Mr. Henegar was
        not receiving his medication.” Br. of Appellant at 38, 40; see also,
        e.g., id. at 41 (asserting that two nurses “were aware of the missing
        medication”).
              For its part, the state insists that Wade’s position “analyzes
        the subjective awareness of a serious risk of harm at far too high a
        level of generality.” Br. of Appellee at 23. “A generalized
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        12                      Opinion of the Court                  21-14275

        awareness of a medical need,” the state contends, “is not enough.”
        Id. at 19. Rather, the state says, “to make out a deliberate indiffer-
        ence claim” under Farmer’s criminal-recklessness standard,” the
        “risk of which an official must be subjectively aware is a risk based
        on his own action or inaction.” Id. at 20 (second emphasis added);
        id. at 30 (“[A] general awareness of a problem is not sufficient—
        there needs to be a specific awareness that the problem requires the
        officer’s action.”). Accordingly, the state contends, in a case like
        this one, which alleges that various prison officials neglected to do
        something, Farmer requires proof that the “prison official [was] sub-
        jectively aware . . . that his inaction will cause an excessive risk of
        harm.” Id. at 2 (emphasis added); accord, e.g., id. at 4 (“[A]n official
        must know that by failing to perform some act, he or she is putting
        the inmate at a substantial risk of serious harm.” (emphasis added));
        id. at 6 (“The question is whether an official knows that his specific
        decision not to act will cause or maintain an exceedingly high risk of
        injury.” (second emphasis added)).
               For several reasons that we’ll explain in turn, we hold that a
        deliberate-indifference plaintiff must show that the defendant offi-
        cial was subjectively aware that his own conduct—again, his own
        actions or inactions—put the plaintiff at substantial risk of serious
        harm.
                                           1
               The first and most important reason for requiring a deliber-
        ate-indifference plaintiff to show that the defendant subjectively
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        21-14275               Opinion of the Court                        13

        knew that his own conduct caused a substantial risk of serious
        harm is that Farmer is best understood to adopt that rule.
               The suit there was brought by a male-to-female transgender
        inmate complaining about the dangers posed by the inmate’s place-
        ment in the general population of a men’s prison. See 511 U.S. at
        829–30. The Supreme Court summarized the inmate’s operative
        complaint as follows: “[R]espondents either transferred petitioner
        to [a different prison,] USP-Terre Haute or placed petitioner in its
        general population despite knowledge that the penitentiary had a
        violent environment and a history of inmate assaults, and despite
        knowledge that petitioner, as a transsexual who ‘projects feminine
        characteristics,’ would be particularly vulnerable to sexual attack
        by some USP-Terre Haute inmates.” Id. at 830–31; see also id. at
        849 (reciting the plaintiff’s contention that “each defendant showed
        reckless disregard for my safety by designating me to said institu-
        tion knowing that I would be sexually assaulted”). Significantly,
        the inmate’s allegations—and thus the Court’s decision concerning
        those allegations—were trained not just on the risks of violence
        and assault that exist in a prison’s general population, but rather on
        the risks that the prison officials created by placing the inmate in a
        particular prison’s general population.
               Against the backdrop of the inmate’s allegations, it’s unsur-
        prising that, on balance, the Farmer Court couched its analysis in
        terms of an assessment of the prison officials’ subjective awareness
        of the particular risk posed by their own conduct. True, the
        Court’s opinion at times refers generically to the risk that an inmate
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        14                     Opinion of the Court                  21-14275

        “face[s].” Id. at 843, 847. Notably, though, the Court framed “[t]he
        question under the Eighth Amendment” more precisely:
        “[W]hether prison officials, acting with deliberate indifference, ex-
        posed a prisoner to a sufficiently substantial ‘risk of serious damage
        to his future health.’” Id. at 843 (emphasis added) (citation omit-
        ted). Other passages of the Court’s opinion likewise emphasize the
        inextricable link between a prison official’s conduct and his
        knowledge of the risk created thereby. See, e.g., id. at 842 (“Under
        the test we adopt today, an Eighth Amendment claimant [must]
        show . . . that the official acted or failed to act despite his
        knowledge of a substantial risk of serious harm.”); id. at 845 (“[T]he
        subjective factor, deliberate indifference, should be determined in
        light of the prison authorities’ current attitudes and conduct.” (ci-
        tation omitted)). The Court’s focus, it seems to us, was on whether
        the official knew that his own conduct—again, his own acts or
        omissions—put the inmate at risk, not just whether the inmate
        confronted a risk in the abstract. Cf. Cox v. Quinn, 

        (4th Cir. 2016) (interpreting Farmer to require proof that “in addi-
        tion to subjectively recognizing [the] substantial risk, the prison of-
        ficial must also subjectively be aware that his actions were inappro-
        priate in light of that risk” (citations and internal quotation marks
        omitted)).
               Any doubt about Farmer’s import, we think, is resolved by
        the Supreme Court’s persistent emphasis on the language of the
        Eighth Amendment and the strictures that its terms impose. The
        Cruel and Unusual Punishments Clause, of course, regulates only
        the “inflict[ion]” of “punishment,” U.S. Const. amend. VIII, and the
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        21-14275                Opinion of the Court                         15

        Court repeatedly stressed the limited scope of the text’s prohibi-
        tion, see, e.g., 511 U.S. at 837–39, 841, 844. So, for instance, as al-
        ready noted, the Court observed that “[t]he Eighth Amendment
        does not outlaw cruel and unusual ‘conditions’” but only “cruel
        and unusual ‘punishments,’” id. at 837, and, to that end, stressed
        that the governing liability standard should “ensure[] that only in-
        flictions of punishment carry liability.” Id. at 841; accord, e.g., Wil-
        son, 

) (“The infliction of punishment is a deliberate
        act intended to chastise or deter. This is what the word means to-
        day; it is what it meant in the eighteenth century.” (citation and
        internal quotation marks omitted)). Indeed, the Court emphasized
        that the whole point of adopting a “subjective approach” to deliber-
        ate indifference—which, underscoring a defendant’s individual cul-
        pability, it imported from the criminal law—was to “isolate[] those
        who inflict punishment” within the meaning of the Eighth Amend-
        ment. Farmer, 

. Absent a particularized focus on a
        prison official’s subjective awareness of the risk created by his own
        conduct, there is a danger that he could be held liable for conduct
        that does not remotely resemble the “inflict[ion]” of “punish-
        ment[.]”
                                           2
                Separately, only a rule trained on a prison official’s subjec-
        tive awareness of the risk caused by his own conduct—rather than
        some preexisting risk—can account for, and sensibly apply to, the
        full range of deliberate-indifference cases.
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        16                         Opinion of the Court                         21-14275

               Needless to say, there’s only one Eighth Amendment, and
        only one deliberate-indifference standard. But deliberate-indiffer-
        ence claims come in different varieties. Some, like this one, give
        rise to what might be called “inaction” cases—they challenge
        prison officials’ failure to do something. So, for instance, Wade’s
        principal allegation is that the guards and nurses at Walker exhib-
        ited deliberate indifference to Henegar’s medical needs when,
        knowing that he suffered from epilepsy, they neglected to ensure
        that he received his Dilantin, and thus “failed to provide him any
        proper medical care or access to medical care.” Doc. 129 at 22. 1
        Other deliberate-indifference claims, by contrast, give rise to what
        we’ll call “action” cases—they target prison officials’ affirmative
        misconduct. Imagine, for instance, a guard who, fed up with an
        inmate’s noncompliance, fires his gun toward the ceiling, only to
        have the bullet ricochet off a pipe and kill another prisoner. Or a
        warden who requires inmates to clean the prison yard in subzero
        temperatures, resulting in an otherwise-healthy prisoner’s sickness
        and eventual death. Or an official who orders an inmate to clean a
        latrine with a mixture of bleach and ammonia, which causes per-
        manent respiratory damage. Cf. Hope v. Pelzer, 

        (2002) (holding that prison guards acted with deliberate


        1 Pure “inaction” cases—in which a deliberate-indifference defendant is alleged

        to have done literally nothing—will likely be few and far between, and indeed,
        Wade at times frames her own case in “action” terms. See, e.g., Oral Arg. at
        7:43 et seq. (arguing that the prison officials here “decided to take an action” in
        response to Henegar’s condition but faulting that action as constitutionally in-
        adequate).
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        21-14275                   Opinion of the Court                                 17

        indifference when they handcuffed an inmate to a “hitching post”
        and thereby “knowingly subjected him to a substantial risk of phys-
        ical harm”); Taylor v. Rojas, 

, 7–10 (2020) (holding that
        guards exhibited deliberate indifference toward an inmate’s health
        and safety when they “confined him in a pair of shockingly unsan-
        itary cells”).
                In a case that, like this one, can be framed in “inaction”
        terms, it’s tempting to focus, as Wade does, on some preexisting
        risk that the inmate plaintiff faced, without regard to its origin or
        cause—here, for instance, the risk of epileptic seizure. Wade’s po-
        sition, though, misses two important nuances. For starters, even
        in a so-called “inaction” case, the relevant “risk” will rarely, if ever,
        exist in a vacuum; it will almost always result from something a
        prison official either does or doesn’t do. To use this case as an ex-
        ample, all seem to agree that the substantial risk to Henegar’s
        health resulted not from epilepsy itself, but rather from the fact that
        his epilepsy went untreated. 2 And according to the allegations here,
        Henegar’s epilepsy went untreated because the prison officials at
        Walker failed to procure his Dilantin—that is, because the officials
        misstepped. So even here, where the deliberate-indifference claim




        2 See, e.g., Oral Arg. at 2:15 et seq. (Wade: “Petitioner here is not arguing for a

        standard in which a prison official could be liable if he is simply aware that an
        inmate has a medical condition; there’s not necessarily a risk there. The risk
        attaches when an inmate who has a medical condition is uncontrolled—it’s
        the lack of medication, it’s the lack of care, that creates the risk.”).
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        18                      Opinion of the Court                  21-14275

        can be cast in “inaction” terms, the relevant risk is inextricably tied
        to the defendants’ own conduct.
                More fundamentally, Wade’s focus on preexisting risk can’t
        possibly apply to “action”-based deliberate-indifference cases. In
        those, the reviewing court must assess the defendant’s knowledge
        by reference to the risk created by his own conduct—for the simple
        (and obvious) reason that there was no preexisting risk of which a
        prison official might have been subjectively aware; by definition,
        the risk didn’t materialize until the official acted. And that’s a prob-
        lem for Wade’s proposed rule. In view of the fact that the same
        Cruel and Unusual Punishments Clause provides the source of con-
        stitutional protection in both the “action” and “inaction” contexts,
        the Farmer Court repeatedly observed that the deliberate-indiffer-
        ence standard applies similarly in both kinds of cases. See 

 (“acting or failing to act”), 837 (“act or omission”), 842
        (“acted or failed to act”). Accordingly, if the deliberate-indifference
        inquiry in an “action” case necessarily focuses on the official’s sub-
        jective awareness of the risk created by his own conduct, as it most
        certainly does, it follows that the inquiry must retain the same fo-
        cus even in cases, like this one, that can be framed in “inaction”
        terms.
                                           3
                The capper, it seems to us, is that focusing on a prison offi-
        cial’s subjective awareness of the risk posed by his own conduct—
        rather than more vaguely on some allegedly preexisting risk—best
        squares with how courts and commentators have historically
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        21-14275                Opinion of the Court                          19

        understood and explained criminal recklessness, even outside the
        Eighth Amendment context. A leading criminal-law treatise, for
        instance, reports that “‘[r]ecklessness’ in causing a result exists
        when one is aware that his conduct might cause the result, though it
        is not substantially certain to happen.” Wayne LaFave, Substantive
        Criminal Law § 5.4(f), at 507 (2018) (emphasis added). The Supreme
        Court has likewise underscored that criminal recklessness denotes
        a state of mind marked by one’s subjective awareness of a risk that
        results from his own conduct. In Voisine v. United States, for in-
        stance, the Court described “reckless behavior” as comprising “acts
        undertaken with awareness of their substantial risk of causing injury”
        and explained that one acts “recklessly” when he consciously disre-
        gards “a substantial risk that [his] conduct will cause harm to another.”
        

 (2016) (emphasis added). So too, in her re-
        cent plurality opinion in Borden v. United States, Justice Kagan ex-
        plained that “[a] person acts recklessly, in the most common for-
        mulation, when he ‘consciously disregards a substantial and unjus-
        tifiable risk’ attached to his conduct, in ‘gross deviation’ from ac-
        cepted standards.” 

 (2021) (emphasis added) (cita-
        tion omitted); accord, e.g., Counterman v. Colorado, 

        (2023) (similar); cf. U.S.S.G. § 2A1.4 cmt. 1 (defining the term “reck-
        less” as “a situation in which the defendant was aware of the risk
        created by his conduct and the risk was of such a nature and degree
        that to disregard that risk constituted a gross deviation from the
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        20                         Opinion of the Court                        21-14275

        standard of care that a reasonable person would exercise in such a
        situation” (emphasis added)). 3
                                            * * *
               For all these reasons, we hold that in order to show that a
        defendant acted with “subjective recklessness as used in the crimi-
        nal law,” Farmer, 

, a deliberate-indifference plaintiff
        must demonstrate that the defendant was actually aware that his
        own conduct caused a substantial risk of serious harm to the plain-
        tiff.
                                               III
                So, in sum, to the question we posed to the parties, “What
        is the standard for establishing liability on an Eighth Amendment
        deliberate-indifference claim?”, we answer as follows:




        3 For that matter, even civil recklessness—which, unlike criminal recklessness,

        entails an objective “should have known” gloss—focuses on the defendant’s
        awareness of the risk posed by his own conduct:
                The actor’s conduct is in reckless disregard of the safety of an-
                other if he does an act or intentionally fails to do an act which
                it is his duty to the other to do, knowing or having reason to
                know of facts which would lead a reasonable man to realize,
                not only that his conduct creates an unreasonable risk of physical
                harm to another, but also that such risk is substantially greater
                than that which is necessary to make his conduct negligent.

        Safeco Ins. Co. of Am. v. Burr, 

 (2007) (quoting Restatement (Sec-
        ond) of Torts § 500 (1964)) (emphasis added).
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        21-14275               Opinion of the Court                       21

                1. First, of course, the plaintiff must demonstrate, as a
        threshold matter, that he suffered a deprivation that was, “objec-
        tively, ‘sufficiently serious.’” Id. at 834 (citation omitted).
               2. Second, the plaintiff must demonstrate that the defendant
        acted with “subjective recklessness as used in the criminal law,” id.
        at 839, and to do so he must show that the defendant was actually,
        subjectively aware that his own conduct caused a substantial risk
        of serious harm to the plaintiff—with the caveat, again, that even
        if the defendant “actually knew of a substantial risk to inmate
        health or safety,” he “cannot be found liable under the Cruel and
        Unusual Punishments Clause” if he “responded reasonably to the
        risk.” Id. at 844–45.
               We remand to the panel for application of this standard to
        the facts of this case.
              REMANDED.
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        21-14275               JORDAN, J., Concurring                        1

        JORDAN, Circuit Judge, joined by ROSENBAUM, JILL PRYOR, and
        ABUDU, Circuit Judges, Concurring.
              Judge Newsom’s opinion for the en banc court correctly sets
        out the subjective component of the deliberate indifference stand-
        ard announced by the Supreme Court in Farmer v. Brennan, 

 (1994), and goes some way in bringing clarity to our Eighth
        Amendment jurisprudence. I therefore join the opinion.
               I write separately on four matters. Three are doctrinal and
        the fourth is practical.
                 First, our decision today does not make deliberate indiffer-
        ence completely subjective on the defendant’s part. As the court
        explains, “a plaintiff must demonstrate that the defendant acted
        with ‘subjective recklessness as used in the criminal law,’ [Farmer,
        511 U.S.] at 839, and to do so he must show that the defendant was
        actually, subjectively aware that his own conduct caused a substan-
        tial risk of serious harm to the plaintiff—with the caveat, again, that
        even if the defendant ‘actually knew of a substantial risk to inmate
        health or safety,’ he ‘cannot be found liable under the Cruel and
        Unusual Punishments Clause’ if he ‘responded reasonably to the risk.’
        

 at 845–46.” Maj. Op. at 21 (emphasis added).
                We have held that the reasonable response component of
        deliberate indifference is objective and not subjective: “Deliberate
        indifference ‘has two components: one subjective and one objec-
        tive. [A] plaintiff must show both that the defendant actually (sub-
        jectively) kn[ew] that an inmate [faced] a substantial risk of serious
        harm and that the defendant disregard[ed] that known risk by
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        2                      JORDAN, J., Concurring                21-14275

        failing to respond to it in an (objectively) reasonable manner.’”
        Mosley v. Zachary, 

 (11th Cir. 2020) (citation
        omitted). And we have consistently recognized and confirmed this
        duality over the last two decades. See Bowen v. Warden, Baldwin
        State Prison, 

 (11th Cir. 2016); Caldwell v. War-
        den, FCI Talladega, 

 (11th Cir. 2014); Rodriguez v.
        Sec’y, Dep’t of Corr., 

, 617 (11th Cir. 2007); Cottone v.
        Jenne, 

 (11th Cir. 2003).
                The objective component makes sense, for it is part of crim-
        inal recklessness, the standard the Supreme Court adopted in
        Farmer. See, e.g., Model Penal Code § 2.02(2)(c) (Am. Law Inst.
        1985) (“A person acts recklessly with respect to a material element
        of an offense when he consciously disregards a substantial and un-
        justifiable risk that the material element exists or will result from
        his conduct. The risk must be of such a nature and degree that,
        considering the nature and purpose of the actor’s conduct and the
        circumstances known to him, its disregard involves a gross deviation
        from the standard of conduct that a law-abiding person would observe in
        the actor’s situation.”) (emphasis added); Nelson E. Roth & Scott E.
        Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Cross-
        roads, 70 Cornell L. J. 446, 453 n.40 (1985) (“Reckless behavior un-
        der the Model Penal Code involves both subjective and objective
        elements. The actor must ‘consciously disregard . . . a substantial
        and unjustifiable risk,’ and such disregard must constitute a ‘gross
        deviation from the standard of conduct that a law-abiding person
        would observe in the actor’s situation.’”) (quoting § 2.02(c) of the
        Model Penal Code). Moreover, in other constitutional scenarios
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        21-14275               JORDAN, J., Concurring                       3

        reasonableness is generally an objective assessment. See, e.g., Ash-
        croft v. al-Kidd, 

, 736 (2011) (“Fourth Amendment rea-
        sonableness ‘is predominately an objective inquiry.’”) (citation
        omitted). Today’s opinion focuses on the subjective component of
        deliberate indifference, but does not address the objective compo-
        nent.
                Second, a defendant’s subjective knowledge need not be es-
        tablished by direct evidence or admissions. As with knowledge in
        other areas of the law, subjective awareness of a substantial risk of
        harm can be proven (or an issue of material fact created) through
        circumstantial evidence. See, e.g., Regalado Cuellar v. United States,
        

, 567 n.8 (2008) (“In many cases, a criminal defend-
        ant’s knowledge or purpose is not established by direct evidence
        but instead is shown circumstantially based on inferences drawn
        from evidence of effect. See, e.g., 1 W. LaFave, Substantive Criminal
        Law § 5.2(a), p. 341 (2d ed. 2003). Specifically, where the conse-
        quences of an action are commonly known, a trier of fact will often
        infer that the person taking the action knew what the consequences
        would be and acted with the purpose of bringing them about.”).
        Farmer itself makes this very point when discussing deliberate in-
        difference under the Eighth Amendment:
              Whether a prison official had the requisite knowledge
              of a substantial risk is a question of fact subject to
              demonstration in the usual ways, including inference
              from circumstantial evidence, and a factfinder may
              conclude that a prison official knew of a substantial
              risk from the very fact that the risk was obvious. Cf.
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        4                      JORDAN, J., Concurring                 21-14275

               [1 W.] LaFave & [A.] Scott, [Substantive Criminal
               Law] § 3.7, p. 335 [(1996)] (“[I]f the risk is obvious, so
               that a reasonable man would realize it, we might well
               infer that [the defendant] did in fact realize it; but the
               inference cannot be conclusive, for we know that peo-
               ple are not always conscious of what reasonable peo-
               ple would be conscious of ”). For example, if an
               Eighth Amendment plaintiff presents evidence show-
               ing that a substantial risk of inmate attacks was
               “longstanding, pervasive, well-documented, or ex-
               pressly noted by prison officials in the past, and the
               circumstances suggest that the defendant-official be-
               ing sued had been exposed to information concerning
               the risk and thus ‘must have known’ about it, then
               such evidence could be sufficient to permit a trier of
               fact to find that the defendant-official had actual
               knowledge of the risk.”

               511 U.S. at 842–43 (some internal citations omitted).

               Especially on summary judgment, where we must construe
        the evidence in the light most favorable to the nonmoving party
        and draw all reasonable inferences in her favor, see Marbury v. War-
        den, 

 (11th Cir. 2019), circumstantial evidence of
        the obviousness of the risk can create an issue of fact and/or sup-
        port a decision in the plaintiff’s favor. See, e.g., Brown v. Hughes, 

, 1538–39 (11th Cir. 1990) (finding that a genuine issue of
        material fact precluded summary judgment when the plaintiff
        claimed that the prison official was present when his foot began to
        “swell severely” the plaintiff told the official that “his foot felt as
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        21-14275               JORDAN, J., Concurring                        5

        though it were broken,” and the official never called for medical
        help); Goebert v. Lee Cnty., 

, 1328–29 (11th Cir. 2007)
        (holding that a reasonable jury could conclude that a prison captain
        was deliberately indifferent in failing to respond to an inmate for a
        week, where the inmate complained that she was leaking amniotic
        fluid and that she had miscarried in a similar way before). Moreo-
        ver, because we cannot make credibility determinations or weigh
        the evidence at summary judgment, see Baker v. Upson Regional Med-
        ical Center, 

 (11th Cir. 2024), testimony by a de-
        fendant that he was unaware of the plaintiff’s medical condition or
        of the risk created by his own inaction does not warrant summary
        judgment his favor when that testimony is rebutted by evidence
        that the condition and associated risk of inaction were apparent.
        See, e.g., Brown, 894 F.2d at 1538–39 (finding that a genuine issue of
        material fact precluded summary judgment on the issue of defend-
        ant’s subjective awareness, even when the defendant denied seeing
        the inmate’s broken foot or being told that his foot was broken);
        Goebert, 510 F.3d at 1328–29 (finding that a genuine issue of mate-
        rial fact precluded summary judgment on the issue of defendant’s
        subjective awareness, despite the defendant’s stated belief that the
        inmate was lying).
                Third, today’s opinion does not concern the Eighth Amend-
        ment deliberate indifference standard for municipalities under Mo-
        nell v. Department of Social Services of the City of New York, 

 (1978), and City of Canton v. Harris, 

 (1989). Farmer
        set out the deliberate indifference standard for individuals who are
        sued for Eighth Amendment violations, and today’s opinion does
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        6                      JORDAN, J., Concurring                21-14275

        the same. In setting out the standard for individuals, the Supreme
        Court in Farmer explained that the deliberate indifference standard
        for municipal liability is objective, and then rejected the use of that
        standard for individuals. See Farmer, 

 (“It would be
        hard to describe the Canton understanding of deliberate indiffer-
        ence, permitting liability to be premised on obviousness or con-
        structive notice, as anything but objective. Canton’s objective
        standard, however, is not an appropriate test for determining the
        liability of prison officials under the Eighth Amendment as inter-
        preted in our cases.”).
                Our cases view the Eighth Amendment deliberate indiffer-
        ence standard for municipalities as objective. See, e.g., Young v. City
        of Augusta, 

 (11th Cir. 1995) (alleged denial of
        medical care for inmate with mental illness: “Before it may be said
        that a municipality has made a deliberate choice among alternative
        courses of action, its policymakers must have had ‘actual or con-
        structive notice that the particular omission is substantially certain
        to result in the violation of the constitutional rights of their citi-
        zens.’” (emphasis added) (citing Canton, 

 (O’Connor,
        J., concurring in part and dissenting in part), which was in turn
        cited with approval in Farmer, 

). And so do commen-
        tators. See 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties
        Litigation § 3:32 (2023–24 edition) (“The Farmer Court’s emphasis
        on the essentially subjective nature of deliberate indifference in a
        prison setting with respect to individual liability bears repeating,
        especially since the Court sharply distinguished it from what it
        termed the objective nature of the deliberate indifference inquiry
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        21-14275               JORDAN, J., Concurring                         7

        in a local government failure to train context where the focus, pur-
        suant to City of Canton v. Harris, is on the state of mind of a govern-
        mental entity. According to the Court, the City of Canton inquiry
        into deliberate indifference focuses on liability based on obvious-
        ness or constructive notice.”) (emphasis in original and footnote
        omitted); Barbara Kritchevsky, A Return to Owen: Depersonalizing
        Section 1983 Municipal Liability Litigation, 

, 1436
        (1996) (“Farmer categorizes Canton’s deliberate indifference stand-
        ard as objective� � � � � �
                Fourth, there remains an important practical point. What is
        one to do with our post-Farmer cases using the “more than mere
        negligence”/“more than gross negligence” formulations that we
        now discard? Despite today’s opinion, district courts and attorneys
        will, out of necessity, continue to turn for guidance to our deliber-
        ate indifference cases from the last 30 years. They will not be able
        to pretend that Eleventh Circuit jurisprudence constituted a vast
        Eighth Amendment lacuna during that period. For example, they
        will look to earlier cases to try to figure out whether a right was
        clearly established for purposes of qualified immunity. My sugges-
        tion, for whatever it might be worth, is that courts and attorneys
        look carefully at prior Eleventh Circuit cases to see if they are con-
        sistent with the subjective component of deliberate indifference set
        out in Farmer. If they are consistent, then they should continue to
        be cited as binding precedent. If they are not, then they probably
        have been abrogated to at least some degree by today’s decision.
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        21-14275            ROSENBAUM, J., Concurring                        1

        ROSENBAUM, Circuit Judge, joined by JILL PRYOR, and ABUDU, Cir-
        cuit Judges, Concurring:
               A state eliminates all expenditures for prisoners’ medical
        care—not to punish the prisoners but instead simply to use the
        money for something else. As a result, a father in prison dies of
        rheumatic fever, brought on by an untreated strep throat he caught
        from another prisoner. A mother who’s not up to date on her vac-
        cinations dies from tetanus after cutting herself on a rusty piece of
        metal in the prison. And an eighteen-year-old kid dies of MRSA he
        picked up in his cell. Of course, the state recognized when it erad-
        icated the prison medical budget that, because of its actions, at least
        some prisoners were likely to needlessly die or suffer life-changing
        illnesses and conditions. But it never intended to punish prisoners
        by eliminating medical treatment.
              The Newsom Concurrence’s interpretation of the Eighth
        Amendment allows all of this because the state didn’t intend to
        punish prisoners when it eradicated medical care. See Newsom
        Concurrence.
              That’s just wrong. It fails to account for two independent
        aspects of the Eighth Amendment’s text.
               First, the Newsom Concurrence does not fully reckon with
        the nature of “punishment.” Prison, for instance, is not some ab-
        stract idea—it necessarily comes with a set of living conditions.
        And so it is pure sophistry to divorce, at the very least, any life-
        threatening or human-rights-threatening aspects of those living
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        2                   ROSENBAUM, J., Concurring               21-14275

        conditions from the punishment of “prison” if the state knows of
        those conditions when it requires a person to stay in a prison.
                And second, the Newsom Concurrence reads “cruel and un-
        usual” out of the Eighth Amendment. After all, even a punishment
        that is not intended to be cruel and unusual may become so when
        the state knows that the conditions that necessarily attend the sen-
        tence disintegrate below “the minimal civilized measure of life’s
        necessities,” Rhodes v. Chapman, 

 (1981)—whether
        the state intends those conditions to be part of the punishment or
        not. So a simple sentence of prison may not, in theory, violate the
        Eighth Amendment. But it can become cruel and unusual if, for
        instance, the state knows that prisoners will receive no medical
        treatment for life- or limb-threatening illnesses, diseases, or condi-
        tions and instead will have to suffer until they die or become disa-
        bled from a treatable condition.
                So while I concur in today’s opinion for the Court, I disagree
        strongly with the Newsom Concurrence. And I write separately to
        point out the errors and dangers in that Concurrence’s theory. Sec-
        tion I of this Concurrence explains why the Newsom Concurrence
        fails to account for the nature of “punishment” in its Eighth
        Amendment analysis. And Section II shows that the Newsom Con-
        currence improperly reads “cruel and unusual” out of its Eighth
        Amendment interpretation.
                                          I.
               Precedent teaches what common sense instructs: when the
        state punishes a person through imprisonment, its “punishment”
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        21-14275            ROSENBAUM, J., Concurring                        3

        includes the state’s failures to prevent certain harms to those in its
        custody.
               To see this, we must understand what constitutes the “pun-
        ishment” of imprisonment. Imprisonment is not, as the Newsom
        Concurrence seems to posit, a psychological construct defined by
        the state’s “intent.” Cf. Concurring Op. at 9. Rather, imprisonment
        is a concrete “deprivation of . . . liberty,” bounded by cell walls and
        armed guards. Estelle v. Gamble, 

 (1976) (quoting
        Spicer v. Williamson, 

 (N.C. 1926)).
                This deprivation includes both compulsions and restrictions.
        Prisoners are compelled, among other things, to be in particular
        places at particular times—they are assigned to live in a particular
        cell in a particular prison. And prisoners are restricted from engag-
        ing in certain activities and obtaining some goods and services (ei-
        ther through explicit prohibitions or as the practical effect of the
        compulsions I’ve mentioned). In other words, prisoners are forced
        to endure the living conditions of their prison and are deprived of
        the independent capacity to obtain medical care. Though not all
        the conditions of confinement constitute “punishment,” see Wilson
        v. Seiter, 

, 301 n.2 (1991), those conditions that prison
        officials know about “compose the punishment.” Rhodes, 

; see also Wilson at 301 n.2.
              That said, of course, certain deprivations are not—and in-
        deed, constitutionally cannot be—part of the punishment of im-
        prisonment. The Supreme Court has long tied the Eighth Amend-
        ment’s prohibition of “cruel and unusual punishments” to the
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        4                       ROSENBAUM, J., Concurring                        21-14275

        “evolving standards of decency that mark the progress of a matur-
        ing society.” Trop v. Dulles, 

 (1958) (plurality opin-
        ion). No wonder. The definition of what’s “cruel” depends on
        these “standards of decency.” That is, we consider a punishment
        to be “cruel” in no small part because it fails to comport with “stand-
        ards of decency.”
                Estelle recognized that these standards of decency incorpo-
        rated an “obligation to provide medical care for those whom [the
        state] is punishing by incarceration.” 

. That is be-
        cause “the prisoner . . . cannot by reason of the deprivation of his
        liberty . . . care for himself.” 

 (quoting Spicer v. Williamson, 

 (N.C. 1926)). As Chief Justice Rehnquist wrote for the
        Court, “when the State . . . so restrains an individual’s liberty that
        it renders him unable to care for himself, and at the same time fails
        to provide for his basic human needs . . . it transgresses the substan-
        tive limits of state action set by the Eighth Amendment . . . .”
        DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

        (1989). In the context of the state’s near-total control over prison-
        ers’ lives, the state takes on the obligation to provide medical
        care—precisely because it cannot constitutionally punish criminals by
        preventing them from obtaining care. 1

        1 One odd result of the Newsom Concurrence’s view is that the Cruel and

        Unusual Punishments Clause could bar the state from punishing a criminal by
        forbidding him from receiving any medical care while otherwise allowing him
        to go free but still permit the state to imprison that person in a facility that just
        so happens not to offer any way to obtain care, even though the latter punish-
        ment includes and is worse than the former.
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        21-14275            ROSENBAUM, J., Concurring                       5

               For this reason, the state’s punishment of imprisonment
        does not include a prohibition on receiving medical care, because
        it constitutionally cannot. But when prison officials knowingly fail
        to meet the state’s obligation to provide medical care—an obliga-
        tion that, once again, arises from the “state action” of imprison-
        ment that prevents those behind bars from obtaining their own
        care, DeShaney, 489 U.S. at 200—that failure becomes part of the
        punishment of prison.
               The Newsom Concurrence says that “punishment” requires
        an “element of intentionality.” Concurring Op. at 2. But the state’s
        “punishment” is prison, and the state very much intends prisoners
        to stay there. (Watch what happens when one tries to leave.) The
        Newsom Concurrence doesn’t explain why this isn’t enough intent
        for known life- or human-rights-threatening conditions accompa-
        nying a prison sentence to be part of the punishment.
                In fact, the Newsom Concurrence never even tries to ex-
        plain why the state’s punitive intent must be so specific as to extend
        to its failure to try to stop medically preventable tragedies among
        its wards. And why stop there? The Newsom Concurrence also
        doesn’t explain why, under its theory, an even more granular no-
        tion of intent would not be necessary to violate the Eighth Amend-
        ment. A prison doctor punitively denies treatment for a prisoner’s
        serious and festering infection, intending that the prisoner will suf-
        fer overnight and the doctor will treat the infection the next day,
        but the prisoner dies before morning. Is this punishment? At the
        very least, the death part isn’t under the Newsom Concurrence
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        6                       ROSENBAUM, J., Concurring                      21-14275

        because the doctor didn’t intend for the prisoner to die as punish-
        ment. Yet any competent doctor knows that the longer a serious
        infection festers, the more life- and limb-threatening it can become.
        Defining punishment solely by “intent to punish” does little to clar-
        ify what mens rea is necessary for official (in)action to constitute a
        punishment, let alone clarify what, generally, is a punishment.
                To the extent the Newsom Concurrence’s intent require-
        ment is vague, perhaps it is because it fits oddly within our system
        of separated powers to think of prison officials having an independ-
        ent intent to punish their wards. The legislature determines the
        punishments for crimes; the judiciary determines when a punish-
        ment should be imposed. At the federal level, the Bureau of Pris-
        ons carries out these punishments, “ensuring that federal offenders
        serve their sentences of imprisonment in facilities that are safe, hu-
        mane, cost-efficient, and appropriately secure.” About Our Agency,
        FED. BUREAU OF PRISONS, https://perma.cc/JSN4-PCD7. But
        prison administration, collectively and individually, does not take
        “vengeance” or enact “retribution” for crimes, because (unlike the
        legislature and judiciary) it does not act in light of its own evalua-
        tion of wrongdoing.2 To say otherwise would make prison officials




        2 The exception is when a prison official determines how to sanction a prisoner

        for that prisoner’s misconduct within prison. But of course, this proves the
        rule: generally, prison officials are not intending to punish in the sense of hav-
        ing a purpose to deter or chastise particular conduct.
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        21-14275               ROSENBAUM, J., Concurring                               7

        judges or legislators, weighing whether a prisoner’s crimes merit
        particular deprivations. 3
               So perhaps it’s not surprising that precedent makes clear that
        that prison officials don’t need some specific punitive intent for
        their actions or inactions to be part of the “punishment” they are
        administering. Instead, when government officials responsible for
        carrying out punishment deliberately fail to provide prisoners with
        necessary medical treatment that the state does not intend to with-
        hold as punishment, that failure becomes part of the punishment.
                                               II.
              The Newsom Concurrence’s crabbed misunderstanding of
        “punishment” is related to its other analytic error: reading “cruel
        and unusual” out of the Cruel and Unusual Punishments Clause.
               The Concurrence has little to say about the “cruel and unu-
        sual” part of the Eighth Amendment. But the phrase preceding
        “punishments” is critical to its meaning, not least because “cruel”
        seems a more natural place to find a scienter requirement than
        “punishment.”



        3 Another way to conceptualize this issue is to note that the Eighth Amend-

        ment incorporates an “anti-discretion norm,” stretching back to the 1689 Eng-
        lish Bill of Rights. Donald A. Dripps, The “Cruel and Unusual” Legacy of the Star
        Chamber, 1 J. AM. CONST. HIST. 139, 143 (2023) (emphasis in original). When
        prison officials act with deliberate indifference towards prisoners’ serious med-
        ical needs, they go beyond their limited discretion in administering criminal
        sentences.
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        8                   ROSENBAUM, J., Concurring               21-14275

               After all, during the Bill of Rights era, “cruel” meant
        “[p]leased with hurting others; inhuman; hard-hearted; void of
        pity; wanting compassion; savage; barbarous; unrelenting,” or,
        “[o]f things,” “[b]loody; mischievous, destructive; causing pain.”
        See 1 Samuel Johnson, Dictionary of the English Language 518 (6th ed.
        1785). These definitions—all of them, but especially words and
        phrases like “inhuman,” “hard-hearted,” “void of pity,” and “want-
        ing compassion”—point to a particular attitude towards the suffer-
        ing of others; they don’t necessarily mean proactively trying to in-
        crease suffering, but rather, being deliberately indifferent to pain
        that most others would seek to alleviate, if they had the power and
        (especially) the responsibility to do so. This attitude, of course, is
        precisely what the “deliberate indifference” touchstone for prison
        medical-mistreatment claims captures. Estelle, 

.
                Why deliberate indifference as the standard, rather than neg-
        ligence or intent? The Supreme Court has suggested that mere ac-
        cidents, the products of negligence, do not result from “the culpa-
        ble state of mind necessary for the punishment to be regarded as
        ‘cruel.’” Wilson, 

. That’s because cruelty inheres in
        not only an action’s physical effects but also its emotional content.
        Everyone—and maybe especially a prisoner—knows the difference
        between an accident and the type of deliberately indifferent con-
        duct revealing a deep disregard for his basic wellbeing. When that
        disregard comes from someone who is both responsible for and in
        control of another’s health, it can only be described as cruel. In-
        deed, the message sent by a prison guard who repeatedly ignores
        his ward’s pleas for necessary medical attention is not unlike the
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        21-14275                ROSENBAUM, J., Concurring                               9

        one the torturer sends to his victim upon the rack: “I see your pain
        but I don’t care.” 4
                But this also shows why prison officials’ actions need not be
        intentional to be cruel and unusual. Imprisonment punishes by
        substituting control for liberty. Ordinarily, that control is accom-
        panied by some degree of care, including medical care. But when
        one’s captor opts not to provide necessary and available medical
        care, he turns the punishment of imprisonment into a cruel one—
        regardless of his purpose or intent in not providing treatment. Af-
        ter all, what difference does it make to the prisoner whether the
        official who controls his wellbeing intends him to suffer or simply
        does not care if he does? Either way, his outcome will be the same,
        and there is little he can do to change it. And the prisoner will, by
        state mandate, remain dependent for his basic needs on someone
        who is at best indifferent to those needs. To impose upon someone
        that sort of existential uncertainty is cruel and unusual; when the
        state does it to a prisoner, it is cruel and unusual punishment.
                                              III.



        4 This also explains the Supreme Court’s adoption of the criminal law’s stand-

        ard for recklessness—requiring the defendant’s subjective awareness of a sub-
        stantial risk—rather than the civil law’s objective standard in deliberate-indif-
        ference claims (which are, after all, civil). See Farmer v. Brennan¸ 

,
        837–39 (1994). A warden who knows of and ignores a substantial risk is cruel;
        a warden who should have known of a risk is incompetent and hardly “com-
        mend[able],” but not cruel. 

. The latter says, “I can’t care for you;”
        the former, “I don’t care about you.”
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        10                  ROSENBAUM, J., Concurring              21-14275

               Our justice system routinely asks lawbreakers to “take re-
        sponsibility for their actions.” But the Newsom Concurrence’s
        view of the Eighth Amendment would allow prison officials to
        avoid responsibility for theirs. And by letting off the hook those
        who actually administer the state’s punishments, this view seeks to
        absolve all of us—judges, legislators, citizens—of responsibility for
        what happens in the state-run facilities we call prisons. As today’s
        decision reiterates, our Constitution demands more.
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        21-14275                 Newsom, J., Concurring                                1

        NEWSOM, Circuit Judge, concurring:
               Today, the Court wisely repudiates its long-confused delib-
        erate-indifference caselaw, which has for years bounced around be-
        tween “more than mere negligence” and “more than gross negli-
        gence” standards, and adopts instead the criminal-recklessness test
        prescribed by the Supreme Court’s decision in Farmer v. Brennan,
        

 (1994). It’s an important step toward righting our
        Eighth Amendment jurisprudence.
               I’d like, though, to explore a more foundational question: Is
        any negligence- or recklessness-based standard consistent with the
        plain language of the Eighth Amendment, which by its terms ap-
        plies only to the “inflict[ion]” of “punishments”? The answer, I
        think, is pretty clearly no. Just as a parent can’t accidentally punish
        his or her child, a prison official can’t accidentally—or even reck-
        lessly—“punish[]” an inmate.1
                                               I
              The Eighth Amendment states that “[e]xcessive bail shall not
        be required, nor excessive fines imposed, nor cruel and unusual
        punishments inflicted.” U.S. Const. amend. VIII. To my mind, it is


        1 In response to Judge Rosenbaum’s concurring opinion, supra, I’ll say only

        this: Perhaps she has convinced some that the position I lay out here is unpal-
        atable; she hasn’t convinced me, at least, that it’s wrong, as a matter of either
        the Eighth Amendment’s plain text or its original understanding. Cf. Hillcrest
        Prop., LLP v. Pasco Cnty., 

 (11th Cir. 2019) (Newsom, J., con-
        curring in the judgment) (“Not everything that s[tink]s violates the Constitu-
        tion.”).
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        2                      Newsom, J., Concurring                  21-14275

        fairly well-established that, as originally understood, the Amend-
        ment’s Cruel and Unusual Punishments Clause prohibited only cer-
        tain particularly objectionable methods of punishment imposed in
        conjunction with a criminal defendant’s judgment of conviction. It
        did not, for instance, entail a proportionality principle that empow-
        ered judges to determine that a particular penalty was excessive in
        relation to a particular crime, nor did it purport to regulate the con-
        ditions of a prisoner’s confinement. I won’t reinvent the wheel; I’ll
        simply say that I find myself persuaded by Justice Scalia’s thorough
        analysis in Harmelin v. Michigan, 

, 961–85 (1991) (Scalia,
        J.); see also, e.g., Anthony F. Granucci, Nor Cruel and Unusual Punish-
        ments Inflicted: The Original Meaning, 

 passim
        (1969). Be that as it may, the Supreme Court has moved on. It has
        read the Clause more broadly, not only to embrace a proportional-
        ity criterion, see Gre v. Georgia, 

 (1976), but also to
        “appl[y] to some deprivations that were not specifically part of the
        sentence but were suffered during imprisonment,” see Wilson v.
        Seiter, 

 (1991), and, even more generally, to em-
        body a fuzzy, eye-of-the-beholder “evolving standards of decency”
        criterion, see Trop v. Dulles, 

 (1958) (plurality opin-
        ion).
                It remains the case, though, that the Eighth Amendment, by
        its plain terms, applies only to “punishments.” And whatever the
        proper understanding of the phrase-of-art “cruel and unusual pun-
        ishments,” the word “punishment[]” had—and has—a settled
        meaning. Samuel Johnson’s 1785 English dictionary, for instance,
        defined it as “[a]ny infliction or pain imposed in vengeance of a
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        21-14275              Newsom, J., Concurring                          3

        crime.” 2 Samuel Johnson, Dictionary of the English Language 424
        (6th ed. 1785). And nearly two centuries later, Americans were still
        using the term in fundamentally the same way to mean a “[p]enalty
        [or a] retributive suffering, pain, or loss.” Punishment, Webster’s
        New International Dictionary (2d ed. 1934). It seems undeniable
        to me that both of those definitions—and others like them—de-
        note an element of intentionality. And that seems all the more un-
        deniable in the specific context of the Eighth Amendment, which
        addresses not just “punishments” simpliciter, but their “in-
        flict[ion],” a term that likewise indicates purposeful, directed con-
        duct. See 1 Samuel Johnson, Dictionary of the English Language 1040
        (6th ed. 1785) (defining “inflict” to mean “[t]o put in act or impose
        as punishment”); accord Noah Webster, An American Dictionary of
        the English Language 968 (1828) (“Inflict, verb transitive: To lay on; to
        throw or send on; to apply; as, to inflict pain or disgrace; to inflict
        punishment on an offender.”).
                To be clear, I’m hardly the first person to make this observa-
        tion about the Cruel and Unusual Punishments Clause’s text. Writ-
        ing for the Second Circuit in Johnson v. Glick, Judge Friendly empha-
        sized that “[t]he thread common to all [Eighth Amendment] cases
        is that ‘punishment’ has been deliberately administered for a penal
        or disciplinary purpose.” 

, 1032 (2d Cir. 1973). Even
        more directly to the point, Judge Posner has explained, pointing to
        what he called “normal meaning[],” that “[t]he infliction of punish-
        ment is a deliberate act intended to chastise or deter.” Duckworth
        v. Franzen, 

, 651–52 (7th Cir. 1985). That, he correctly
        said, “is what the word means today; it is what it meant in the
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        4                        Newsom, J., Concurring                      21-14275

        eighteenth century.” 

 at 652 (citing Samuel Johnson, Dictionary
        of the English Language (1755)). And Justice Scalia, writing for the
        Supreme Court in Wilson v. Seiter—citing and quoting, among oth-
        ers, Judges Friendly’s and Posner’s observations and adding his own
        emphasis for good measure—indicated that the Eighth Amend-
        ment entails an “intent requirement” and clarified that “[t]he
        source of t[hat] requirement is not the predilections of this Court,
        but the Eighth Amendment itself, which bans only cruel and unu-
        sual punishment.” 501 U.S. at 300. 2
               The unmistakable linguistic fact that the term “punishment”
        entails an intentionality element would seem to preclude any legal
        standard that imposes Eighth Amendment liability for uninten-
        tional conduct, no matter how negligent (whether “mere[ly]” or
        “gross[ly]” so) or even criminally reckless. Negligence and reck-
        lessness, after all, are expressly defined in contradistinction to inten-
        tional conduct. See, e.g., Negligence, Black’s Law Dictionary (10th

        2 Tellingly, even those who contend that the constitutional term “cruel”

        should be understood by reference to a punishment’s effect on the punished,
        rather than to the punisher’s particular motivation, acknowledge my funda-
        mental point—that, by definition, “all punishment involves intent.” John F.
        Stinneford, The Original Meaning of “Cruel”, 

, 479 (2017). They
        admit that under “the Eighth Amendment’s intent requirement,” “[t]o violate
        the Cruel and Unusual Punishments Clause, some government official must
        intend to punish”; they just deny that the Clause requires the further proof
        that the official “intend[ed] to punish cruelly.” 

 (emphasis added).
        Accord, e.g., John F. Stinneford, Is Solitary Confinement a Punishment?, 115 Nw.
        L. Rev. 9, 17 (2020) (reviewing historical and modern definitions of “punish-
        ment” and concluding that the term “involves intent to inflict pain or suffer-
        ing, [just] not necessarily culpable intent”).
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        21-14275                Newsom, J., Concurring                              5

        ed. 2015) (“[A]ny conduct that falls below the legal standard estab-
        lished to protect others against unreasonable risk of harm, except
        for conduct that is intentionally, wantonly, or willfully disregardful of oth-
        ers’ rights.” (emphasis added)); Recklessness, 

 (“Recklessness in-
        volves a greater degree of fault than negligence but a lesser degree of
        fault than intentional wrongdoing.” (emphasis added)).
              So on a plain reading, the Cruel and Unusual Punishments
        Clause applies only to penalties that are imposed intentionally and
        purposefully.
                                             II
               How is it, then, that we now find ourselves grinding over
        which among several negligence- or recklessness-based standards
        should govern a particular species of Eighth Amendment claim?
        When and where did things go so wrong? It started innocently
        enough, with Estelle v. Gamble, 

 (1976), in which the Su-
        preme Court minted what it dubbed (and we still call) a “deliberate
        indifference” claim under the Eighth Amendment. There, the
        Court was pretty good about minding the line between intentional
        and negligent conduct—but it sowed seeds that would later flower
        into a clean break from the text’s intentionality criterion. On the
        one hand, the Estelle Court made clear that ordinary negligence
        does not constitute “punishment” within the meaning of the
        Eighth Amendment: Neither “[a]n accident” nor “an inadvertent
        failure to provide adequate medical care,” it said—even one that
        would give rise to a “[m]edical malpractice” claim—crosses the
        constitutional line. 

 at 105–06. And, in fact, in describing the
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        6                     Newsom, J., Concurring                 21-14275

        types of conduct that could “manifest[]” sufficiently culpable con-
        duct, the Court twice adverted to purposeful actions: prison
        guards “intentionally denying or delaying access to medical care or
        intentionally interfering with the treatment once prescribed.” 

 at
        104–05 (emphasis added). On the other hand, though, the Court
        also repeated language from its “evolving standards of decency”
        line of decisions asserting that the “unnecessary and wanton inflic-
        tion of pain” could give rise to an Eighth Amendment claim. 

 (emphasis added) (quoting Gre, 

). “Wanton”-
        ness is a heightened mental state, to be sure, but it’s not the same
        thing as intent or purpose.
                Next came Wilson v. Seiter, to which I’ve already referred. Re-
        spectfully, Wilson is an odd opinion. The question there was
        whether an ordinary conditions-of-confinement claim should be
        decided under Estelle’s “deliberate indifference” standard—what-
        ever its precise parameters—or instead under a higher standard that
        applies when “officials act in response to a prison disturbance,” in
        which the complaining inmate must prove that officers acted “ma-
        liciously and sadistically for the very purpose of causing harm.”
        501 U.S. at 302 (quoting Whitley v. Albers, 

, 320–21
        (1986)). In the course of its opinion, the Court nodded strongly
        toward a true intentionality criterion. As already noted, the Court
        stated that the source of what it called “the intent requirement”
        was “the Eighth Amendment itself, which bans only cruel and un-
        usual punishment,” id. at 300, and went on to quote favorably Judge
        Posner’s definition of the term “punishment” as “a deliberate act
        intended to chastise or deter,” as well as Judge Friendly’s
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        21-14275              Newsom, J., Concurring                        7

        observation that “punishment” is “deliberately administered for a
        penal or disciplinary purpose,” id. (quoting Duckworth, 

, and Glick, 481 F.2d at 1032, respectively).
                Strangely, though, having made the case—and a convincing
        one—that “[a]n intent requirement is . . . implicit in the word ‘pun-
        ishment,’” id. at 301, the Wilson Court then pivoted, in the second
        part of its opinion, to decide what it (somewhat inconsistently) pre-
        sented as an open question: “[I]t remains for us to consider what
        state of mind applies in cases challenging prison conditions” as vi-
        olative of the Eighth Amendment. Id. at 302. And in answer to
        that question, the Court deferred to language in its earlier decisions
        (including Estelle) rather than the language of the Constitution it-
        self: “[O]ur cases say that the offending conduct must be wanton.”
        Id. In particular, the Wilson Court said that the form of wantonness
        to which Estelle had adverted was sufficient: In the ordinary prison-
        conditions “context, as Estelle held, ‘deliberate indifference’ would
        constitute wantonness.” Id.
               Lastly—in the Supreme Court, anyway—came Farmer, the
        basis for today’s decision. There, the Court set out to specify “the
        proper test for deliberate indifference,” as adopted in Estelle and se-
        conded in Wilson. 

. Canvassing its earlier caselaw,
        the Court opted for a standard “lying somewhere between the
        poles of negligence at one end and purpose or knowledge at the
        other,” settling on one that it loosely called “recklessness.” 

. More precisely, as today’s majority opinion explains, the
        Farmer Court embraced a criminal-recklessness standard, which, it
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        8                     Newsom, J., Concurring                21-14275

        said, requires a complaining prisoner to prove that the prison offi-
        cial whose conduct he challenges subjectively “kn[ew] of and dis-
        regard[ed] an excessive risk to inmate health or safety.” 

.
        In justifying its choice, the Court repeatedly adverted to the Eighth
        Amendment’s language—noting, for instance, that it “does not
        outlaw cruel and unusual ‘conditions’” but only “cruel and unusual
        ‘punishments.’” 

 It never explained, though, how the criminal-
        recklessness standard that it embraced followed from the text itself.
        Rather, the most the Court could muster was that “subjective reck-
        lessness as used in the criminal law is a familiar and workable stand-
        ard that is consistent with the Cruel and Unusual Punishments
        Clause as interpreted in our cases”—that is, as glossed in decisions
        like Estelle and Wilson. 

 at 839–40 (emphasis added). Having said
        so, the Farmer Court “adopt[ed]” criminal recklessness “as the test
        for ‘deliberate indifference’ under the Eighth Amendment.” 

.
               With Farmer, the retreat from the Eighth Amendment’s
        “punishment” requirement—and the intentionality criterion that it
        indicates—was complete. And our own post-Farmer decisions only
        widened the gap between text and doctrine. For nearly three dec-
        ades, we messed around with negligence-based tests—“more than
        mere,” “more than gross,” etc. Today, we have wisely—and fi-
        nally—brought ourselves into compliance with Farmer’s criminal-
        recklessness criterion. It’s an important step, but we—as what the
        Constitution calls an “inferior [c]ourt”—have now gone as far as we
        can go. If Eighth Amendment doctrine is to be brought into com-
        pliance with the Eighth Amendment’s text, it’ll be up to the
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        21-14275             Newsom, J., Concurring                       9

        Supreme Court. As I see it, though, there’s simply no denying that,
        as a matter of both language and logic, the Amendment’s “punish-
        ment” requirement demands proof of intentionality.
                                        III
               Maybe it makes sense to hold prison officials liable for negli-
        gently or recklessly denying inmates appropriate medical care.
        Maybe not. But any such liability, should we choose to recognize
        it, must find a home somewhere other than the Eighth Amend-
        ment. We—by which I mean the courts generally—have been ig-
        noring that provision’s text long enough. Whether we like it or
        not, the Cruel and Unusual Punishments Clause applies, as its mon-
        iker suggests, only to “punishments.” And whether we like it or
        not, “punishment[]” occurs only when a government official acts
        intentionally and with a specific purpose to discipline or deter.