24-b-3 Harassment by Prison Officials

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

24-B-3. Harassment by Prison Officials

This Section explains when different types of harassment violate the Eighth Amendment. Harassment can be verbal, physical, or sexual. Harassment may be about race, sex, disability, language, national origin, sexual orientation, or other characteristics. New York State defines harassment as "[e]mployee misconduct meant to annoy, intimidate, or harm an inmate."¹⁴¹ Generally, verbal harassment alone does not violate the Eighth Amendment unless you are also physically threatened at the same time. Sexual harassment is any unwanted sexual attention. Generally, sexual comments by themselves are not enough for an Eighth Amendment violation.¹⁴² If you are being harassed, you should first try to file a grievance through the inmate grievance system, discussed in JLM Chapter 15.

(a) Verbal Harassment Alone

You cannot have an Eighth Amendment claim for verbal assault only.¹⁴³ Courts do not think verbal abuse, including racial and sexual comments, is unconstitutional. For example, the Ninth Circuit held in Austin v. Terhune that a prisoner did not have an Eighth Amendment claim where a guard verbally harassed the prisoner in a sexual and racial manner and briefly exposed the guard's genitals.¹⁴⁴ Similarly, the Sixth Circuit in Johnson v. Dellatifa decided that a prisoner had no constitutional claim against a guard who banged his cell door, threw food trays, made aggravating and insulting comments, and behaved in a racially prejudicial manner because harassment and verbal abuse are not Eighth Amendment violations.¹⁴⁵

(b) Verbal Harassment With Physical Threats

While simple verbal harassment does not violate the Eighth Amendment, courts have held that when these assaults come along with very serious physical threats (such as believable death threats), you may have a claim for psychological injury.¹⁴⁶ However, the PLRA states that prisoners may not bring a federal civil action for mental or emotional injury suffered while in custody "without a prior showing of physical injury."¹⁴⁷ The courts have said that this means that if you can only show a psychological injury, you will not be able to get money damages. The court can still grant you injunctive relief (a court order to prevent officials or prisoners from harassing you) if you can show that this conduct is likely to happen again in the future.¹⁴⁸ For more information on injunctive relief, see Part L of Chapter 14 of the JLM, "The Prison Litigation Reform Act."

(c) Sexual Harassment

There is no single definition of sexual harassment in the...