F. Your Right to Be Free from Cruel and Unusual Punishment

• Library: The Jailhouse Lawyer's Handbook (CCR) (2021 Ed.)

F. Your Right to be Free from Cruel and Unusual Punishment

The Eighth Amendment forbids "cruel and unusual punishment" and is probably the most important amendment for prisoners. It has been interpreted to prohibit excessive force and guard brutality, as well as unsanitary, dangerous, or overly restrictive conditions. It is also the source for your right to medical care in prison.

1. Your Right to Be Free from Physical Brutality and Sexual Assault by Prison Staff

√ The Rule: A use of force is excessive and violates the Eighth Amendment when it is not applied in an effort to maintain or restore discipline, but is used to maliciously and sadistically cause harm. Where a prison official is responsible for unnecessary and wanton infliction of pain, the Eighth Amendment has been violated.

What this means in practice is that guards do NOT have the right to beat you or harm you unless their action is considered justified given the situation.

a. Use of Excessive Force and Physical Brutality by Prison Officials

"Excessive force" is any physical contact by a guard that is meant to cause harm rather than keep order.

"Excessive force" by prison guards is cruel and unusual punishment. In a very important Supreme Court case called Hudson v. McMillian, 503 U.S. 1 (1992), the Court found a violation of the Eighth Amendment when prison officials punched and kicked a prisoner, leaving him with minor bruises, swelling of his face and mouth, and loose teeth. The Court held that a guard's use of force violates the Eighth Amendment when it is not applied "in a good faith effort to maintain or restore discipline," but instead is used to "maliciously and sadistically cause harm." To prevail under Hudson, a two-part test applies. First you must show that prison officials "acted with a sufficiently culpable state of mind" (the subjective element)—i.e., not for a legitimate penological purpose, but "maliciously and sadistically for the very purpose of causing harm," and (2) the harm caused was more than "de minimis". "De minimis" means so trivial it's not even worth considering.

In applying this test to excessive force claims, judges may consider:

> The need for force;
> Whether the amount of force used was justified given the need;
> How serious the need for force appeared to the guards;
> Whether the guard made efforts to use as little force as necessary; and
> How badly you were hurt.

This means that to win on an excessive-force claim, you will have to show that more force was used against you than was justified given the situation, but you do not have to show injury. It is usually enough to show some harm, even if it is relatively minor. In 2010 the Supreme Court made it clear that a prisoner can win an excessive force case even if they are not seriously injured. Wilkins v. Gaddy, 559 U.S. 34 (2010). In Wilkins, the Supreme Court explained that a beating is excessive force, even if it doesn't result in injuries that require medical care. De minimis harm, on the other hand, is something like a push or a shove that does not inflict pain or injury.

The most important thing to prove is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."

This is about the "state of mind" of prison officials. "Maliciously and sadistically" means harm that is cruel, done for the purpose of hurting someone, and is uncalled-for. You can meet this requirement by showing that the force used was not a necessary or reasonable part of keeping order.

For example, one court found an Eighth Amendment violation when an officer repeatedly hit a prisoner even though the prisoner had immediately obeyed an order to lie face down on the floor and was already being restrained by four other officers. Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388 (8th Cir. 1997). In another successful case, the prisoner was handcuffed and hit several times in the head and shoulders while in a kneeling position. Brown v. Lippard, 472 F.3d 384 (5th Cir. 2006). On the other hand, the Ninth Circuit held that there was no Eighth Amendment violation when a prisoner was shot in the neck during a major prison disturbance because the court found that the officer was trying to restore order. Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001). The Eighth Circuit said pepper spraying a prisoner's genitals was not excessive force when the prison said he was refusing orders to submit to wrist restraints and being unruly. Ward v. Smith, 844 F.3d 717 (8th Cir. 2016).

With mechanical restraints, you might be able to bring an "excessive force" claim even if the prison says the treatment is just a "condition of confinement" (which is a separate category and discussed below). For example, in Young v. Martin, 801 F.3d 172 (3d Cir. 2015), an appeals court applied the excessive-force test when a prisoner was forced into a restraint chair and remained naked there for fourteen hours.

Unfortunately, many courts have found that prison officials who only make verbal threats of physical harm do not violate the Eighth Amendment. See Walton v. Terry, 38 F. App'x 363, 364-65 (9th Cir. 2002) ("verbal threats do not constitute cruel and unusual punishment."); Turner v. Mull, 784 F.3d 485, 492 (8th Cir. 2015) (threatening to drown plaintiff without taking further action was not unconstitutional). But in Lisle v. Welborn, 933 F.3d 705, 710 (7th Cir. 2019), the Seventh Circuit found that a plaintiff who was taunted for his failed suicide attempts and encouraged to try again had a valid Eighth Amendment claim.

NOTE: As with many of the other types of claims described in this Handbook, please remember that a constitutional claim in federal court is not your only option. In a guard brutality case, it may be simpler to bring a "tort" case in state court.

b. Sexual Assault and Abuse by Prison Officials

Rape and sexual assault by prison staff also violates the Eighth Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (sexual assaults by guards violate the Eighth Amendment "regardless of the gender of the guard or of the prisoner"); Smith v. Cochran, 339 F.3d 1205 (10th Cir. 2003) (assault by prison work program supervisor violates the Eighth Amendment).

For sexual assault by prison officials, the two-part test from Hudson v. McMillian, 503 U.S. 1 (1992) applies. However, this test can be easier to meet here because sexual assault is very harmful and violates contemporary standards of decency without a legitimate penological purpose, even in cases where there is no physical injury. See Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (explaining claims can proceed even if physical injury is "de minimis").

Sexual abuse that falls short of rape can violate the Eighth Amendment as well. Some courts like the Second and Eleventh Circuits require the sexual abuse to be "severe or repetitive" in order for plaintiffs to prevail. See Sconiers v. Lockhart, 946 F.3d 1256, 1266-67 (11th Cir. 2020), Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). But one severe, isolated incident can meet this standard.

In Daskalea v. District of Columbia, 227 F.3d 433 (D.C. Cir. 2000), a court of appeals upheld a prisoner's Eighth Amendment claim where she was forced to do a striptease in front of all the prisoners and officers at her facility. The court found deliberate indifference based on the plaintiff's repeated filing of grievance claims and letters to officials seeking help, as well as the widespread and ongoing pattern of harassment and sexual assault at the facility. The District argued that it was not deliberately indifferent because it had a policy in place prohibiting such behavior, but the court rejected this argument because it found that no prisoner had ever received a copy of the policy, only a few employees remembered receiving it, and it had never been posted anywhere in the facility.

A pat or strip search can violate the Eighth Amendment too if conducted in a sexual manner to humiliate a prisoner (Fourth Amendment claims for searches are discussed in Section E above). One good case to read for this issue is Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). That case involved a guard searching a prisoner by grabbing his genitals and taunting him. The Second Circuit said that intentionally touching genitalia or intimate areas for the officer's pleasure or to humiliate the prisoner violates the Eighth Amendment. Another is Sconiers v. Lockhart, 946 F.3d 1256, 1266-67 (11th Cir. 2020), where an appeals court found that a guard who shoved his finger into the plaintiff's anus outside the context of an approved body-cavity search violated the Eighth Amendment.

But in Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998), a court rejected the Eighth Amendment claim of a plaintiff who was briefly touched on the buttocks by prison staff in an attempt to embarrass him, without any accompanying sexual advances.

You can bring a claim for commission of a sexual act under the PLRA even if it does not result in physical injury. For purposes of this exception, 18 U.S.C. § 2246 defines a sexual act as follows:

A. contact between the penis and the vulva or the penis and the anus, and...contact involving the penis occurs upon penetration, however slight;
B. contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
C. the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
D. the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

For more on the PLRA's physical injury requirement that applies in cases that do not involve sexual assault, read Chapter Four, Section C.

Rape and...