24-b-2 Protection from Assault Under the Eighth Amendment

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

24-B-2. Protection from Assault Under the Eighth Amendment

This Section is about the right of convicted state and federal prisoners to be free from assault under the Eighth Amendment,⁴¹ which prohibits "cruel and unusual punishment."⁴² Under the Eighth Amendment, prison officials cannot use excessive physical force against you⁴³ or purposely let someone else hurt you.⁴⁴

There are two parts of an Eighth Amendment claim, and you must prove both of them in order to show that an assault against you violated the Eighth Amendment. First you must show what the prison official was thinking or knew at the time of the assault (this is the "subjective" part, explained in Part B(2)(a)). You must also show injuries (if any) you received from an assault by a prison official, or show how a prison official's actions caused you to be in "substantial risk of serious harm" of being attacked by another prisoner (this is the "objective" part, explained in Part B(2)(b)).

To summarize, to show that an assault against you violated the Eighth Amendment, you must prove that the force used against you had two parts:

(1) A subjective part-prison officials must have acted with a state of mind that is guilty enough;⁴⁵ and

(2) An objective part- you must have been injured⁴⁶ or you must have had a big risk of serious injury.⁴⁷

(a) Subjective Part-Culpable State of Mind

The subjective part of assault means you must show what the prison official was thinking or knew when you were assaulted. Courts use two different standards (the Hudson and Farmer standards) for the subjective part. The standard a court will use in your case depends on who assaulted you: a prison official or another prisoner. If a prison official hurt you, courts use the Hudson standard to look at whether the guard used force as part of his job to keep the prison safe and orderly, or whether the guard's force was meant to cruelly hurt you for no valid reason. If another prisoner hurt you, courts use Farmer to look at whether the prison officials knew about the danger to you but did not stop or act to prevent the assault.⁴⁸

(i) Assault by a Prison Official-The Hudson Standard

If you are suing a prison official who injured you, a court will use the "malicious and sadistic" (evil and cruel) standard the Supreme Court created in Hudson v. McMillian⁴⁹ to determine whether the official's force against you was so bad ("excessive") as to be against the Eighth Amendment. In order to show a constitutional wrong under Hudson, a prisoner must show that the prison official's force was not "a good-faith effort to maintain or restore discipline," but rather was used "maliciously and sadistically" to hurt the prisoner.⁵⁰

If officials are using force for valid reasons, they are not acting against the Eighth Amendment.⁵¹ Prison officials are generally allowed to use force during a riot or other major prison disturbance,⁵² and during smaller events when prisoners behave violently or disruptively.⁵³ But, if the force has no purpose and is simply meant to harm the prisoner for no valid reason, then the official may be found to have used too much force.⁵⁴ In other words, if the official uses force for the purpose of harming you and not for returning order to the prison, then the official may be found to have used too much force.

To decide if the prison official intended to act maliciously and to harm you (to determine the official's "state of mind"), courts will look at:

(1) the seriousness of your injuries,⁵⁵

(2) if the force was necessary under the circumstances (why the official used force),

(3) the relationship between the need to use force and the amount of force that was actually used,

(4) the size of the threat as a prison official would reasonably see it, and

(5) efforts made by prison guards to decrease the amount of force used.⁵⁶

You should think about each of these factors when you try to prove that prison officials meant to hurt you when they used violence. You need to remember that "not every push or shove, even if it may later seem unnecessary," violates your constitutional rights.⁵⁷ Even if an official used force, you may not be able to win in court. Nevertheless, some uses of force may be so extreme that they are unconstitutional, even in an emergency.⁵⁸

The Ninth Circuit has said that you do not need to show that the officer meant to hurt or punish a specific individual.⁵⁹ This means even if the officer meant to hit someone else, he can still be found liable if he hit you instead. For instance, in Robins v. Meecham, a prisoner was injured by a birdshot a correction officer had fired at another prisoner.⁶⁰ The court held that even though the officer did not mean to harm or punish Robins, the officer did mean to harm a different prisoner.⁶¹ The court said that this was enough to meet the intent requirement.⁶²

Still, it is important to note that if a prison official means to harm a prisoner, but in the end does not hurt the prisoner, the prisoner will not have a claim.⁶³ For example, in Warren v. Humphrey, a prison official tried to kick a prisoner in the head but missed.⁶⁴ Because he missed, there was no harm and therefore, no case.⁶⁵ Remember that the Prison Litigation Reform Act would probably also prevent you from making a similar claim because it requires a physical injury, not just a mental injury.⁶⁶

(ii) Assault by Another Prisoner-The Farmer Standard

If you are suing a prison official who did not stop or act to prevent another prisoner from attacking you, the court will use the "deliberate indifference"⁶⁷ standard from Farmer v. Brennan.⁶⁸ Prison officials may be found liable under the deliberate indifference standard if they:

(1) knew of a big risk of serious harm to the prisoner, and

(2) ignored the risk and did not act or do enough to avoid the harm.⁶⁹

Because prisoners often cannot protect themselves, courts have decided that the government must take reasonable steps to protect prisoners against violence by other prisoners.⁷⁰ The Eighth Amendment creates a constitutional right for prisoners to be protected from harm by fellow prisoners.⁷¹ Courts have mainly used the "deliberate indifference" standard for cases where a prison official does not prevent a prisoner from assaulting another prisoner, but courts have also used the standard for when a prison official does not prevent another official from attacking a prisoner.⁷² These types of lawsuits are also known as "failure-to-protect" claims.⁷³ You can go to court to claim prison officials are ignoring unsafe conditions or a serious threat against you, even if you have not yet been assaulted.⁷⁴

In Farmer v. Brennan, the U.S. Supreme Court held that prison staff showed deliberate indifference when they did not do anything, even though they knew about a big risk⁷⁵ to a prisoner's safety.⁷⁶ If you were assaulted by another prisoner (or prison guard) and believe prison officials' deliberate indifference allowed the assault to happen, you will have to prove to the court that:

(1) There was a big risk to your safety, and

(2) The prison officials knew of this risk to your safety.

In addition to proving both of the above, you must also prove one of the following:

(1) The prison officials did not try to prevent the assault; or

(2) The prison officials did nothing to stop the assault; or

(3) The prison officials tried to prevent or stop the assault, but they did not try as hard as they should have (in other words, their attempts to prevent the assault were not reasonably enough).

Remember, courts also use the deliberate indifference standard in claims against supervisors who did not do enough to watch over and control their prison staff, and against officers who stood by and watched an assault.⁷⁷

(1) Proving a Substantial Risk to Your Safety

You must first show that there was or is a big ("substantial") risk of serious harm to your safety from another prisoner to satisfy the objective part of the Farmer test (see Part B(2)(b)(ii), below).

(2) Proving the Prison Officials Knew About This Risk

You must also provide evidence that the official knew of the big risk to your safety.⁷⁸ You do not have to prove that the official definitely knew you were going to be attacked. You only have to show that the official knew there was a big chance that you could get hurt.⁷⁹ You do not have to show that the officials knew you were personally at risk or that the risk came from a particular prisoner.⁸⁰

For an Eighth Amendment deliberate indifference claim, it is not enough to claim prison officials should have known about the big risk to your safety⁸¹ (although in that case you still may be able to make a state law negligence tort claim as described in Part (B)(1)(a)(i)). Eighth Amendment deliberate indifference claims require the prison officials to have actually known about the big risk to your safety.⁸²

You can show that the officials actually knew about this big risk by showing both direct evidence and circumstantial evidence of the threat.⁸³ Courts think that whether a prison official knew about the risk is a question of fact that depends on the situation.⁸⁴ For example, if you have evidence that the risk was around for a long time, something a lot of people knew about, or that the official must...