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9.26 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. 

9.26 PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM OF EXCESSIVE FORCE 

As previously explained, the plaintiff has the burden of proving 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. 

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

1. the extent of the injury suffered;

2. the need to use force;

3. the relationship between the need to use force and the amount of force used;

4. any threat reasonably perceived by the defendant;

5. any efforts made to temper the severity of a forceful response, such as, if feasible, providing a prior warning or giving an order to comply; and

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

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. 

Comment

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 plaintiff is a pretrial detainee, use Instruction 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force). When the plaintiff is not in custody, use Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive (Deadly and Nondeadly) Force). 

When the prisoner claims unconstitutional conditions of confinement, including inadequate medical care, use Instruction 9.27 (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, 692 F.3d at 1045. "[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. McMillian, 503 U.S. 1, 5 (1992)). 

The Ninth Circuit has identified five factors set forth in Hudson to be considered in determining whether the use of force in a penal institution was excessive: "(1) the extent of injury suffered by an inmate; (2) the need for application of force; (3) the relationship between that 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. 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, 204 F.3d at 1196(quoting Hudson, 503 U.S. at 8. 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 (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"). 

"It is well established that judges and juries must defer to prison officials’ expert judgments." Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir.2010). In Norwood, the Ninth Circuit approved of an instruction that the jury "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." Id.; cf. Chess v. Dovey, 790 F.3d 961, 974 (9th Cir.2015) (holding that deference generally should not be given in medical care context absent actual security considerations).

The Committee has not formulated an instruction that relates to sexual harassment claimed by an inmate. See Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir.2012); Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir.2000).