Prisoners Self Help Legal Clinic
PO Box 798, Newark, NJ  07101
Website  http://pshlc.org

BRUTALITY IN PRISON

            The Eighth Amendment protects prisoners* against "cruel and unusual punishment," not only in sentencing, but also in what happens in prison, as to conditions of confinement, such as abuses and beatings by officers, assaults by other prisoners, and medical neglect. This packet will concern the subject of assaults and beatings.

        The Eighth Amendment, written as part of the Bill of Rights in 1791, states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The "cruel and unusual punishment" clause was originally intended to stop torture and similar practices. However, over time the meaning of "cruel and unusual punishment" has grown. The Supreme Court stated in Trop v. Dulles, 356 U.S. 86, 78 S.Ct.509, 630 (1958):  "(T)he words of the Amendment are not precise and their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that marks the progress of a maturing society."

        Because the Amendment does not specify what constitutes cruel and unusual punishment, the courts have developed certain guidelines that 

     * Pre-trial detainees: If you have not been convicted, you should not be receiving any punishment. If you are suffering abuses discussed here, you should claim that your Fifth Amendment "Due Process" rights are being denied, since you are being punished without a trial. You cannot claim an Eighth Amendment violation. However, your rights under the Fifth Amendment are at least as great as under the Eighth Amendment.

they use. A punishment is cruel and unusual if it is disproportionate to the offense. If the 
punishment is too severe or harsh compared to the general ideas of dignity, decency and civilized standards, it is proscribed by the Eighth Amendment.

        In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972), the Supreme Court stated that "the state must not arbitrarily inflict a severe punishment... The very words 'cruel and unusual punishment' imply condemnation of the arbitrary infliction of severe punishments... a punishment is excessive under this principle if it is 
unnecessary. The infliction of a severe punishment by the state cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment is unnecessary and therefore excessive." 92 S.Ct. 2742-47
        
        The courts do not draw a distinction between cruel  punishment and unusual punishment. A punishment that qualifies as cruel does not need to be unusual to be prohibited. Likewise, a sanction that is unusual but not cruel may be covered by the Eighth Amendment. The phrase is treated as a single legal "term of art."

        However, restrictive and even harsh conditions have been found by the courts to be part of the punishment that criminal offenders should expect to receive. It is often said that prisons are not supposed to be country clubs; but neither are prison conditions supposed to encourage hatred against society or degrade the prisoner. 

Abuses, Force, Failure to Protect

        Deliberate beatings, beatings of handcuffed prisoners, and other physical torment by officers, do take place in prisons  and in some institutions, systematic beatings are a routine method of control (or revenge, or amusement). Courts are increasingly recognizing that beatings carried out "deliberately" and "with unnecessary and wanton infliction of pain" are against the law and, in rare cases, criminal. Beatings and rape by other prisoners are also violations, if it can be shown that the officers were "in reckless disregard" of your rights, in some cases even if no assault occurred.

        However, if the abuse occurred during an emergency, or was not intentional, or was just or rough handling, under current law there may not be a violation.

        What to do if you are physically abused, either by staff or by prisoners. If you are abused, or have reason to fear that you are exposed to danger of abuse, the first step is to write notes on everything which happens, taking down names, dates and times, and any possible witnesses. Right away you must file administrative remedies. In most systems, you may file your remedies to a higher level officer if you are afraid to pass them through someone who has immediate control over you. If you can't get a form, draft one of your own.

        Next, consider filing a Section 1983 Complaint in Federal District Court. In your complaint, allege: a) that your constitutional right to protection ( Eighth Amendment) from "cruel  and unusual punishment" was violated,* b) that  certain events occurred, and c) that what you  are 

*Pretrial detainees should claim a violation of their Fifth Amendment right not to be punished without a trial.

asking the court to do is to require that the abuse  stop and to award you money damages. Ask for a reasonable amount in damages. (See PSHLC packet on 1983 Litigation.) You may also file a Motion for Temporary Injunction with the court to ask for an order to stop the abuse immediately.

	Can you hold supervisors liable for the acts of subordinates? In Pool v. Mo. Dept. of Corrections , 883 F.2d 640 (8th Cir. 1989), a supervisor was held responsible for the unconstitutional acts of staff in a prisoner assault.

        In Thomas v. Frederick, 763 F.Supp. 540 (W.D.La. 1991), a sheriff was found liable for assaults by officers under his command, because he had been "turning a blind eye" to allegations of police brutality and had not investigated such reports.    	      

USING THE EIGHTH AMENDMENT               STANDARDS

        When you plan how and whether to write a "cruel and unusual punishment" claim, you may find it helpful to use the following 
guidelines.       

        Can you show that the abuse was deliberate and intentional? This question looks to the state of mind and knowledge of officials that inflicted the injury.

        Was there a disturbance, such as a riot, or an emergency, requiring a level of force which would otherwise be unacceptable?

        If so, can you show that the abuse was "malicious and wanton?" The courts give greater latitude to officials who injure and even kill prisoners in a riot or attack, but even then, if the injury was inflicted "maliciously and wantonly", that is, sadistically and for no reason, the victim could win an Eighth Amendment claim, as decided in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986).

        Was the injury serious enough to count as "cruel and unusual?"This standard shifts to what people think, to what offends contemporary standards of decency.

          Does the abuse offend decency ? Hudson v. McMillian, 499 U.S.958, 112 S.Ct.995 (1992), held that even though the abuse did not cause injury requiring medical attention, it did offend decency, because it was intentional and wanton. The Hudson Court held that " when prison officials maliciously and sadistically use force to cause harm, "contemporary standards of decency always are violated," whether or not significant injury is caused.  Hudson v. McMillian, 112 S.Ct. 995, 1000 (1992).
  
      Thus, it appears that there is a balancing: If the injury was severe and caused by deliberate indifference, one would have a case. If the injury was less severe, but was inflicted sadistically, one would still have a case.

        Was force or physical abuse involved? How much? Again, Whitley holds that force may be used "in a good faith effort to maintain or restore discipline". Hudson suggests the same: "The Eighth Amendment prohibition ... excludes de minimus uses of physical force, provided that the use of force is not "repugnant to the conscience of mankind." Hudson v. McMillian, 112 S.Ct.995, 1000 (1992). But in the case of Hudson, who was handcuffed, "the blows directed at his face were not de minimus and they would shock the conscience."

 
ASSAULTS FROM OTHER 	PRISONERS  

        Can you state a claim against officials if you are brutalized by other prisoners? Prison officials are responsible for your safety, but they cannot be held responsible for everything that happens.   According to the standard in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986), you must show that officials were "deliberately indifferent" or had "reckless disregard" for your safety.

        In Hobbs v. Evans, 924 F.2d. 774 (8th Cir. 1991), an officer told other prisoners that the plaintiff had provided information, i.e., was a "snitch." The plaintiff was assaulted three times. The court found that the officer had acted with reckless disregard.

        Benny v. Pipes, 799 F.2d. 489 (9th Cir. 1986), found six officers were acting intentionally when they stood by while a prisoner was physically and sexually assaulted.

        In McNeal v. Macht, 763 F.Supp. 1458 (E.D.Wisc. 1991) officers who stood by when a prisoner was assaulted were found to  be "deliberately indifferent," and not entitled to qualified immunity.

        But compare Stubbs v. Dudley, 489 U.S. 1034 (1989), where guards stood by and watched a prisoner being assaulted while they were also facing armed assailants approaching the prison arsenal. The standard used then, due to the emergency, was the Whitley v. Albers standard, i.e., whether the injury was inflicted maliciously, and not the "deliberate indifference" standard.

       In Ayala Serrano v. Lebron Gonzales, 909 F.2d. 8 (1st Cir. 1990), where an officer neither intervened nor called for help when a prisoner was repeatedly stabbed, the prisoner was awarded $20,000 and the officer was not entitled to qualified immunity. However, officers are not necessarily required to intervene. In Arnold v. Jones,  891 F.2d. 1370 (8th Cir. 1989), an unarmed guard was found to have no constitutional duty to intervene in a fight which might cause him serious injury or worsen the situation.

        You may also be able to prove liability if the situation is specifically known to be dangerous, "where defendants know of the danger or where the threat of violence is so substantial or pervasive" that they should have acted, "yet defendants fail to enforce a policy or take other reasonable steps." Goka v. Babbitt, 862 F.2d 646, 651 (7th Cir. 1988). Facts: Officials allowed a member of a notorious gang to keep a broom in his cell. Goka had been threatened and had already asked for protection before he was struck in the eye with the broom handle. A lower court had found that it was enough that the gang member had received warnings, but the circuit court ruled that officials had shown deliberate indifference and callous disregard of Gokas right to protection when they did not remove the broom, especially in view of the threats.

       The court in Wright v. Jones, 907 F.2d 848 (8th Cir. 1990), found officers guilty when they stood by while prisoner was beaten for five minutes. Further, officers knew that prisoners had been congregating in a housing unit and that there had been assaults, but they had taken no action, thereby showing reckless disregard. 

         Fear or danger even though no assault has happened.  The mental torture of fearing death, beatings, or rape is a cruel punishment for those who have enemies in the prison. It is a pain that can continue for months and years. Yet few court decisions address this situation. However, in Riley v. Jeffes, 777 F.2d.143 (3rd Cir. 1985), the Third Circuit addressed a situation where other prisoners had keys to the plaintiff's cell, so that for six months he was in constant fear of robbery, rape, and stabbing. Even though no physical injury had occurred, the court ruled that officers were indifferent. The prisoner's right to be protected from violence does not require that he be actually assaulted, (s)he need only to show a pervasive risk from other prisoners.

	*FAILURE TO PROTECT 
		UPDATE*

	In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994), Justice Souter held that under the Eighth Amendment, prison officials could be found liable for "denying humane conditions of confinement," including taking reasonable measures to guarantee safety of prisoners. Prison officials have a duty to protect prisoners from violence at the hands of other prisoners.  However, this is only true "if they know that inmates face substantial risk of serious harm and disregard the risk by failing to take reasonable measures to abate the danger".	  

	Although the Court required that prison official, "show 'deliberate indifference' to prisoners, in order to be liable for failure to prevent harm, [this requirement] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result."  The standard is 'subjective recklessness'  "as used in criminal law, is test for whether prison authorities have acted with 'deliberate indifference' toward prisoners, in violation of their Eighth Amendment rights...A prisoner claiming that prison officials violated their Eighth Amendment duty to protect him against harm need not show that officials acted or failed to act believing that harm actually would befall an inmate; it is sufficient that official acted or failed to act despite his knowledge of substantial risk of serious harm."

	In addition, "While obviousness of risk of harm is not conclusive, in establishing that prison official owed duty to protect prisoner against such harm, and prison official may show that the obvious escaped him, official would not escape liability if evidence showed he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist".

HUDSON V.McMILLIAN, 
A SIGNIFICANT USE OF FORCE CASE

        The Court of Appeals for the Fifth Circuit had held that to prove a violation of the Eighth Amendment, a prisoner plaintiff had to show that there was significant injury, resulting from unnecessary use of force, which was unreasonable, and was a wanton and unnecessary infliction of pain. In Hudson's case, the Appeals Court had ruled that the bruises were not significant, as they required no medical attention.

        The U.S. Supreme Court reversed the Appeals Court. Justice Sandra Day O'Connor wrote: "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is caused...the Eighth Amendment prohibition ... excludes de minimus use of physical force [de minimus means so slight as not to matter] provided that the use of force is not...'repugnant to the conscience of mankind...' and the blows directed at Hudson ... are not de minimus." Hudson v. McMillan, 112 S.Ct.995, 1000 (1992).

        In this case, Justice Clarence Thomas wrote a dissent which was widely criticized, saying that the majority decision stretched the protection of the Eighth Amendment too far. Thomas maintained that where the use of force by officers may be criminal, "the responsibility for punishing and preventing such conduct rests not with the Federal Constitution, but with the laws and regulations of the various states." And there, Thomas was correct, in that criminal convictions, under state criminal codes, should be more widely used in cases of brutality committed by prison employees.

        Unfortunately, criminal sanctions still are rarely applied in cases of guard brutality. The constitutional remedy is taken for granted as the way to go, in part because it takes the issue of punishment out of the hands of local courts. However, as the public becomes more aware of what "cruel and unusual punishment" prohibits, such convictions may become more common. Certainly, prisoners should consider demanding more criminal investigations of brutality incidents.
					   	APPENDIX

U.S. Supreme Court decisions on 
"cruel and unusual punishment"

         These important cases define what levels of abuse go so far as to violate your Eighth Amendment rights. Quote their language when you allege that the abuse you suffered was an Eighth Amendment violation.

Standards of decency
Trop v Dulles, 356 U.S. 86, 78 S.Ct. 509, 630 (1958), quoted on page 1 of this packet, sets forth the standard that a violation of the Eighth Amendment is an act which offends "the evolving standards of decency that marks the progress of a maturing society." This test looks at the act of brutality itself.

Deliberate indifference as to conditions.      
Wilson v. Seiter, 501 U.S.294, 111 S.Ct. 2321 (1991), says that it is not enough to show that conditions such as overcrowding, inadequate heating, and failure to protect, are "cruel and unusual." To win a claim of an Eighth Amendment violation, you must show "deliberate indifference", i.e., that the abuse was intentionally inflicted. 

Unnecessary and wanton infliction of pain
Rhodes v. Chapman,  452 U.S. 337, 101 S.Ct. 2392 (1981), holds that while double celling may result in deprivations, "they do not inflict pain, much less unnecessary and wanton pain, " and so are not an Eighth Amendment violation. (Wanton means senseless, unprovoked, unjustifiable, or deliberately malicious.) This test looks at the intent of the official.

Except if there is a "disturbance" that "poses significant risks." Whitley v. Albers, 475 U.S. 312, 320-321, 106 S.Ct. 39,48 (1986), carves out an exception to the "deliberate indifference" standard in cases such as riot or other dangerous emergency, when officials may knowingly inflict injury - but within limits.

Maliciously and sadistically, for the very purpose of causing harm.  The standard in Whitley v. Albers, as explained by Marshall in his dissent is that officers would be inflicting "cruel and unusual punishment" if, even in an emergency, they acted "maliciously and sadistically, for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 328. That standard is the bottom line test of 'cruel' punishment: unnecessary, sadistic injuries are violations of law under any conditions.

"Standards of decency violated ... even if no significant injury is caused." The landmark case, Hudson v. McMillan, 499 U.S. 958 (1991), 112 S.Ct. 995 (1992), arose because a lower court recently denied that there had been an Eighth Amendment violation, even though Hudson had been struck in the face while handcuffed, by two officers, so that his lips were bruised and his dental plate broken, because these wounds did not require medical attention. The Court held that "when prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Hudson v. McMillan, 112 S.Ct. 995, 1000 (1992). In this case, the Court looked at intent and decency, regardless of the injury.

Felix v. McCarthy,939 F.2d.699 (9th Cir. 1991), is an interesting 9th Circuit case concerning improper use of authority. Officers threw a prisoner against the wall, causing bruises and "emotional damage." It was alleged that an officer used his position of authority to degrade dignity. The court ruled: "It is not the degree of injury which makes out a violation of the eighth amendment. Rather, it is the use of official force or authority that is 'intentional, unjustified, brutal, and offensive to human dignity.'" Felix v. McCarthy, 939 F.2d. 699, 702. This case is significant, because it brings dignity and the abuse of authority within the meaning of "cruel and unusual punishment." The abuse of power in this case took away the officers' entitlement to qualified immunity.

	    	* UPDATE *
BEWARE OF PRISON LITIGATION REFORM ACT (PLRA)!!

	The Third Circuit Court of Appeals recently ruled that excessive force is a “prison condition” for purposes of the Prison Litigation Reform Act (PLRA) and that prisoners must therefore first exhaust all administrative remedies before bring a §1983 action alleging prison guards’ intention acts of violence.[Booth v. Churner, 2000 WL 251627, -- F.3d --,(3d Cir. 2000)] In that case, Timothy Booth, a Pennsylvania prisoner, alleged that several guards on various occasions assaulted him, seriously injuring his shoulder and requiring three stitches. He complained about the assaults in the state prisoner grievance procedure, but stated that his allegations were “dismissed or covered up,” largely out of retaliation because he spoke up about abuse and corruption.
	Asserting his Eighth Amendment right to be free of cruel and unusual punishment, Booth, acting pro se, filed a §1983 action, alleging use of excessive force and requesting various forms of monetary and injunctive relief, including transfer to another prison. He also requested appointment of counsel. 
	The District Court, acting sua sponte (on its own, without a motion from defendants) and without requiring an answer from the defendants, dismissed Booth’s action because of his failure to exhaust his administrative remedies. The court pointed out that the PA DOC had a three-step grievance procedure.  Booth had taken the first step in the process, but made no showing that he had taken the second and third steps, which required that he appeal the decision reached by the prison officials in the first step. Booth then appealed.

PLRA. As amended by the PLRA of  1996, 42 U.S.C. §1997e(a) provides that 
“no action shall be brought with respect to prison conditions under §1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility, until such administrative remedies as are available are exhausted.” 

	In Booth, the Third Circuit answered  two important questions about the meaning of the mandatory administrative exhaustion requirements of the PLRA: (1) the applicability of §1997e(a) to §1983 excessive force actions, or whether excessive force is a “prison condition” for purposes of the PLRA; and (2) whether §1997e(a) only requires the exhaustion of administrative remedies “as are available,” and not of remedies which would be “futile” because they could not provide the relief requested.
	The Court answered the first question by holding that §1997e(a) does apply to excessive force actions. It held that Congress, in passing the PLRA, clearly intended to subject all prisoner petitions, save for habeas petitions, but including isolated episodes of unconstitutional conduct by prison officials, to §1997e(a)’s exhaustion requirement. 
	The only other court of appeals to address this question, the 6th Circuit, is in agreement with the conclusion of the 3d Circuit. In Freeman v. Francis, 196 F.3d 641,644  (6th Cir. 1999), that court held that “the term ‘prison conditions’ as used in §1997e includes claims of excessive force...” The Court of Appeals for the 5th and 10th Circuits have implicitly reached the same conclusion. See Wendell v. Asher, 162 F.3d 887, 889, 891-92 (5th Cir. 1998); Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir. 1997).
	In answer to the second question, the 3d. Cir. held that its recent decision in Nyhuis v. Reno, 2000 WL 157531 (3d Cir. Feb. 15, 2000), was controlling.  In Nyhuis, the court held that the PLRA amended § 1997e(a) so as to make exhaustion of all administrative remedies mandatory — whether or not they provide the prisoner-plaintiff with the relief (s)he says(s) he desires in his federal litigation. 
	Because Booth failed to appeal the unfavorable administrative  decisions, as was his right under the Inmate Grievance System of Pennsylvania, his lawsuit was dismissed.
	In the aftermath of Booth, all prisoners are urged to exhaust ALL of their administrative remedies before filing litigation in excessive use of force cases, as in all other prisoner litigation.

                   
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DEDICATION                           
                                                       
This pamphlet is dedicated to Keith Hudson, the pro se litigant who studied law and carried his case, Hudson v. McMillan, to the U.S. Supreme Court
. 
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