Prison Excessive Force Cases: A Primer
In his column on Civil Rights Litigation, Ilann M. Maazel explains the basic standard for bringing civil rights actions for prison brutality by state or local corrections officers.
by Ilann M. Maazel | New York Law Journal
Excessive force on Rikers Island has been the subject of numerous class actions against New York City, including two cases brought by my law firm and others: Ingles v. Toro (S.D.N.Y. 01 Civ. 8279), and Nunez v. City of New York (S.D.N.Y. 11 Civ. 5845). But brutality by corrections officers against prisoners remains all too common in jails and prisons throughout New York State. The following is the basic standard for bringing civil rights actions for prison brutality by state or local corrections officers.
42 U.S.C. §1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable.” “Person[s]” include corrections officers who work for a municipality, county or state.
In the prison context, the key right secured by the Constitution for convicted prisoners is the Eighth Amendment.
The Eighth Amendment protects prisoners from cruel and unusual punishment by prison officials. To state an Eighth Amendment claim, a prisoner must allege two elements, one subjective and one objective. First, the prisoner must allege that the defendant acted with a subjectively “sufficiently culpable state of mind.” Second, he must allege that the conduct was objectively “harmful enough” or “sufficiently serious” to reach constitutional dimensions. Analysis of the objective prong is “context specific,” and “depends upon the claim at issue.” Although not “every malevolent touch by a prison guard gives rise to a federal cause of action,” the Eighth Amendment is offended by conduct that is “repugnant to the conscience of mankind.” Actions are repugnant to the conscience of mankind if they are ‘incompatible with evolving standards of decency’ or involve “the unnecessary and wanton infliction of pain.”
Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (internal citations omitted).
A pretrial detainee’s claim of excessive force is governed by the Due Process Clause of the Fourteenth Amendment. In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held that excessive force claims brought under the Fourteenth Amendment do not require the same subjective intent standard as Eighth Amendment claims. “[A] pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 2473. This is so for a number of reasons. Among them, “[t]he language of [the Eighth and Fourteenth Amendments] differs, and the nature of the claims often differs. … [P]retrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically’ …. Thus, there is no need here, as there might be in an Eighth Amendment case, to determine when punishment is unconstitutional.” Id. at 2475.
Going forward, the Kingsley standard may lead to an increased rate of success for excessive force claims litigated by pretrial detainees.
Though most federal civil rights claims are brought against individual officers or their supervisors, prisoners can also sue municipalities and counties under Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978), where the entity engages in a pattern, practice or policy of unconstitutional conduct (as was alleged in Ingles and Nunez). Inmates in state prison, however, cannot sue the State of New York for damages in federal court, because of Eleventh Amendment immunity. Claims against the State of New York must be brought in the New York State Court of Claims.
Federal prisoners can also bring Eighth Amendment claims against individual corrections officers, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). This is the rough equivalent of a Section 1983 claim against state or local officers. Though Bivens claims are increasingly disfavored in the Supreme Court, they still remain for Eighth Amendment claims of excessive force in federal prison. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).
What Plaintiffs’ Lawyers Look for in Prison Brutality Cases
What, then, do lawyers look for in excessive force prison cases? Here is some information that prisoners should include in any letter to a lawyer when seeking representation:
First, when did the incident happen? This is important for purposes of filing timely notices of claim, and for statutes of limitations purposes. The sooner a prisoner writes a lawyer after the incident, the better. Claims under New York law against New York State and against municipalities have strict deadlines. Inmates should, if possible, write long before 90 days pass, to meet deadlines for the claim or the notice of intent to file a claim in the Court of Claims (for claims against New York State), and for notices of claim (for cases against most municipalities). If months or even a year has passed, however, not to worry. Federal Section 1983 claims can be brought within three years of an incident. Even if it is too late to sue a city, county or New York State under New York law, it may not be too late to sue the officers involved under federal law.
Second, what happened? How and why did the incident begin? Most altercations with corrections officers occur for a reason: some challenge to authority, a snide remark, a refusal to comply with an order. As to the incident itself: Who hit whom where? What is the exact sequence of events? Did the prisoner resist, and if so, how? Detail matters. The more information the prisoner gives, the more information the lawyer has to evaluate the strength of the case.
Were there witnesses? If so, who? What are their names and prison numbers? If there was a disciplinary hearing against the prisoner for charges arising out of the altercation, did these witnesses testify at that hearing? Which officers were involved? What are their names and identification information? This is important for a number of reasons. For example, as noted above, a prisoner cannot sue New York State in federal court because of the Eleventh Amendment. A state prisoner can only sue individual officers in federal court. But it is extremely difficult to sue unnamed officers.
Were there any cameras? Was the prisoner taken to an area outside the range of cameras, such as a medical clinic examining room or bathroom? Video evidence is always critical, and if there is video evidence, the lawyer will likely send a preservation letter immediately.
What are the injuries? This may be the most important factor of all. Serious injuries are evidence of both liability and damages. The more severe the injury, the more likely the force used by the officers was excessive. Greater injuries also mean greater damages. Not many lawyers will take prison excessive force cases involving minor cuts and bruises. But serious injuries such as collapsed lungs, busted eardrums, permanent loss of vision, broken bones (all injuries that are much too common in New York prisons) are much more likely to lead a lawyer to take the case.
What medical treatment did and will the prisoner receive? A prisoner should send the lawyer any available medical records. If not, the lawyer will likely send a medical release. These records are critical. Skeptical juries will usually believe a medical record over the testimony of a prisoner or a corrections officer. Injured prisoners should of course get the medical treatment they need. As a secondary benefit, medical documentation will be important evidence in the case.
Did the prisoner complain about the incident to anyone, or formally grieve the incident? Was the incident reported to the Office of Special Investigations (for New York State prisoners) Under the Prison Litigation Reform Act (PLRA), exhaustion of administrative remedies is required before filing a Section 1983 case. In New York State prison, this means grieving the incident as part of the Inmate Grievance Program.
Did the prisoner have any prior incidents with any of these officers? What were those incidents? Did the prisoner file a complaint? Do the officers have a history of violence against other individuals? Have the officers been sued by other prisoners for excessive force? Prior incidents can be relevant to claims against the state or municipality for negligent hiring, training, discipline and retention claims. They can also be relevant to Monell claims against a municipality, alleging a pattern, practice or policy of unconstitutional conduct.
Why is the inmate in prison? What was the prisoner convicted of (if anything)? What is the prisoner’s complete criminal history? When was the conviction? This information may or may not be revealed to a jury, but it is important for the lawyer to be informed. First, the criminal history may be admissible at trial, depending on the nature of the crime and the date of the conviction. Second, prior criminal history can affect a defendant’s settlement position. Third, New York State’s “Son of Sam” law may impact a prisoner’s recovery in a lawsuit, since it provides (for certain crimes) that money gained through a lawsuit must first compensate any victim of that prisoner’s crime.
Has the prisoner sued before, and if so, what was the case? Usually prior lawsuits will not matter much, but prisoners who have sued 20 times before may be viewed as professional litigants, not true victims.
Finally, what was the prisoner’s life like before prison: where the person grew up, educational background, employment background, family. Where are those family members now? What has the person done in prison? Has s/he been working on a GED, taking courses, working? Does s/he have a prison disciplinary history, and if so, what?
All of this information should, if possible, be in an initial letter. Because imprisonment makes initial interviews with lawyers more logistically difficult, the initial letter is more important than in most other cases.
Most jurors agree that, though prisoners must pay their debt to society for their crimes, no prisoner should be brutalized by corrections officers. This is even more plain for the many pretrial prisoners who have not even been convicted of a crime. Through the civil rights laws, prisoners and their counsel can help ensure that some basic level of humanity exists even behind bars.
Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady.
This article was first published in the July 12, 2018, issue of the New York Law Journal and is republished here with permission. © 2018 ALM Media Properties, LLC. All rights reserved.