9.24 PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM OF EXCESSIVE FORCE
As previously explained, the plaintiff has the burden to prove that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the Eighth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].
Under the Eighth Amendment, a convicted prisoner has the right to be free from "cruel and unusual punishments." In order to prove the defendant deprived the plaintiff of this Eighth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:
1. the defendant used excessive and unnecessary force under all of the circumstances;
2. the defendant acted maliciously and sadistically for the purpose of causing harm; and
3. the act[s] of the defendant caused harm to the plaintiff.
In determining whether the defendant used excessive force in this case, consider the need to use force, the relationship between that need and the amount of force used, whether defendant applied the force in a good faith effort to maintain or restore discipline, any threat reasonably perceived by the defendant, any efforts made to temper the severity of a forceful response, and the extent of the injury suffered. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7, and when the plaintiff is a convicted prisoner.
When the prisoner claims unconstitutional conditions of confinement, including inadequate medical care, use Instruction 9.25 (Particular Rights—Eighth Amendment—Prisoner’s Claim re Conditions of Confinement/Medical Care), which sets out the applicable deliberate indifference standard.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishment" upon inmates serving a sentence. Wilson v. Seiter, 501 U.S. 294, 297 (1991).
"Whether a particular event or condition in fact constitutes ‘cruel and unusual punishment’ is gauged against ‘the evolving standards of decency that mark the progress of a maturing society.’" Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir.2000) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Although de minimis use of physical force is insufficient to prove an Eighth Amendment violation, Hudson, 503 U.S. at 8, a prison guard’s use of force violates the Eighth Amendment when the guard acts maliciously for the purpose of causing harm whether or not significant injury is evident. See Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 -1179 (2010) ("An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.")
The "malicious and sadistic" standard applies when prison guards "use force to keep order . . . [w]hether the prison disturbance is a riot or a lesser disruption." Hudson, 503 U.S. at 6 (citing Whitley v. Albers, 475 U.S. 312, 321–22 (1986). See also LeMaire v. Maass, 12 F.3d 1444, 1452–53 (9th Cir.1993) (finding malicious and sadistic "heightened state of mind" controlling when applied to any "measured practices and sanctions either used in exigent circumstances or imposed with considerable due process and designed to alter [the] manifestly murderous, dangerous, uncivilized and unsanitary conduct" of repeat offenders housed in disciplinary segregation); Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.1993) (en banc) (noting that "greater showing" than deliberate indifference is required "in the context of a prison-wide disturbance or an individual confrontation between an officer and a prisoner," when "corrections officers must act immediately and emphatically to defuse a potentially explosive situation").
If the alleged excessive force claim is sexual abuse, see Wood v. Beauclair, 692 F.3d 1041, 1050 (2012) (coercive sexual actions serves no valid objective and the conduct "itself constitutes sufficient evidence that force was used ‘maliciously and sadistically’ for the very purpose of causing harm."). The harm required in the third element of this instruction may be an offense to human dignity. See id.
As noted, this instruction applies to excessive force claims by convicted prisoners. The committee has not formulated any instructions for excessive force claims by pretrial detainees and notes the constitutional standards may differ. See Graham v. Connor, 490 U.S. 386, 395 fn. 10 (1989).