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9.24 Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Excessive Force

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This chapter is being reviewed in light of comments solicited by the Committee from the public.


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 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 [or the defendant’s actions were offensive to human dignity].

In determining whether the defendant used excessive force in this case, consider the following factors:

1. the need to use force;

2. the relationship between that need and the amount of force used;

3. whether the defendant applied the force in a good faith effort to maintain or restore discipline;


4. any threat reasonably perceived by the defendant;

5. any efforts made to temper the severity of a forceful response, i.e., whether prior warnings were given; and

6. 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 9.3–9.8, 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 cruel and unusual punishment in penal institutions. Wood v. Beauclair, 692 F.3d 1041, 1045 (9th Cir.2012). "[U]nnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir.2013) (quoting Hudson v. McMillan, 503 U.S. 1, 5 (1992)). 

The Ninth Circuit has identified five factors set forth in Hudson to be considered in determining whether the force used caused unnecessary and wanton pain and suffering: (1) the extent of injury suffered by an inmate; (2) the need for application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Furnace, 705 F.3d at 1028. In Furnace, the court also considered whether verbal warnings were given prior to the administration of force, i.e. pepper spray. Id. at 1029. ("Officers cannot justify force as necessary for gaining inmate compliance when inmates have been given no order with which to comply."). 

"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, 1178-79 (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").

"Sexual harassment or abuse of an inmate by a corrections officer is a violation of the Eighth Amendment." Wood, 692 F.3d at 1046. It is "always ‘deeply offensive to human dignity’ and is completely void of penological justification." Id. at 1051 (quoting Schwenk, 204 F.3d at 1196). "When a prisoner alleges sexual abuse by a prison guard, the prisoner is entitled to a presumption that the conduct was not consensual. The state then may rebut this presumption by showing that the conduct involved no coercive factors." Id. at 1049. The plaintiff need not produce evidence of injury; "rather, the only requirement is that the officer’s actions be ‘offensive to human dignity.’" Id. (citing Schwenk, 204 F.3d at 1196).

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 n.10 (1989). See also Instruction 9.27 (Pretrial Detainee’s Claim of Excessive Force) (Comment only).