The Eighth Amendment’s prohibition against “cruel and unusual punishment” includes a bar to the use of “excessive force” by prison officials against prisoners. Hudson v. McMillian, 503 U.S. 1, 8 (1992).

When a prisoner makes an Eighth Amendment claim of excessive force, courts consider two elements: (1) the objective severity of the prisoner’s injuries from the use of force; and (2) the subjective culpability of the prison official applying the force. Id.

The Objective Harm Test: Harm 

The “objective” aspect of the test includes consideration of whether the actions by prison officials were “harmful enough” to implicate the Eighth Amendment. Assessing such harm does not require proof of significant injury, and can be established by pain alone. Still, the objective harm test requires some measure of actual harm, more than a de minimis effect. See Wrightv. Goord, 554 F.3d 255, 269. (2d Cir. 2009)(“acute shortness of breath” for a few minutes after being grabbed by a guard not actionable).

The Subjective Culpability Test

The subjective “culpability” test used as to excessive force claims requires that prison officials acted with a sufficiently culpable state of mind when using force. The “unnecessary and wanton infliction of pain” can constitute excessive force under the Eighth Amendment. Hudson, 503 U.S. at 6-7. See, e.g., Watts v. McKinney, 394 F.3d 710, 712 (9th Cir. 2005)(slamming inmate’s face into wall, kicking him in the groin while handcuffed actionable where prisoner posed no threat to guard).

The unique place that the use of force has in prison matters makes determining culpability difficult in some cases. For example, force needed during “cell extractions” involving combative prisoner is often deemed actionable, Skinner v. Cunningham, 730 F.3d 483, 488-89 (1st Cir. 2005). The relationship between the need for force and the amount used is a key consideration. See Giles v. Kearney, 571 F.3d 318, 327 (3rd Cir. 2009)(guard continuing to beat inmate after he stopped resisting deemed actionable under Eighth Amendment because continued force had no legitimate penological purpose). Whether the prisoner reasonably appeared to be a threat to others is considered, see Smith v. Ozmint, 578 F.3d 246, 254 (4th Cir. 2009)(prisoner with weapon reasonably restrained), as is whether officials attempted to use only enough force as required to effect order or discipline. See Campbell v. Sikes, 189 F.3d 1353, 1377 (11th Cir. 1999)(careful monitoring of restraints on mentally ill prisoner made use of force reasonable).

However, because force is sometimes required in the prison context, a retrospective finding that officials used too much force in a given confrontation does not, in itself, give rise to an Eighth Amendment claim. Whitley v. Albers, 475 U.S. 312, 319.

Ensuring That Meaningful Review Can Occur

Whenever force is applied to a prisoner, steps should be taken to preserve his or her right to review such action. First, the prisoner should make efforts to secure preservation of any videotapes, recordings of the incident, or after-action reports; virtually every correctional agency requires one or more of these methods of documentation when force is used against a prisoner. Such a request should be made in every instance, whether via an informal written request to administrators or under the Freedom of Information Act, 5. U.S.C. § 552a, or similar provision.

Second, the prisoner should utilize whatever administrative remedy program is available to them to register a formal complaint regarding the use of force. This includes submitting for the record the prisoner’s version of the events that took place. This factual presentation should always include as much detail as possible. Doing so will ensure that if the matter does reach the courts, the prisoner’s version of the facts will enjoy greater credibility down the line. Every step of the administrative review process (this is also known as the Administrative Remedy Process in some prison systems) must be followed to the letter, to avoid a later charge by prison officials that the prisoner “failed to exhaust” such remedies before seeking outside review.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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