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A Jailhouse LawyersManual

Chapter 16:

Using 42 U.S.C. 1983 and 28 U.S.C.

1331 to Obtain Relief FromViolations of Federal Law

Columbia Human Rights Law Review

8th Edition2009


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LEGAL DISCLAIMER

A Jailhouse Lawyers Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice toprisoners. This information is not intended as legal advice or representation nor should youconsider or rely upon it as such. Neither the JLMnor any information contained herein isintended to or shall constitute a contract between the JLMand any reader, and the JLMdoes not guarantee the accuracy of the information contained herein. Additionally, your useof theJLMshould not be construed as creating an attorney-client relationship with theJLMstaff or anyone at Columbia Law School. Finally, while we have attempted to provideinformation that is up-to-date and useful, because the law changes frequently, we cannotguarantee that all information is current.


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CHAPTER 16

USING 42U.S.C.1983 AND 28U.S.C.1331TO OBTAIN RELIEF FROMVIOLATIONS OF FEDERAL LAW*

A. Introduction1. Overview

The U.S. Constitution and some federal laws protect you against unfair governmentactions by giving you individual rights. For example, the Eighth Amendment protects yourright to be free from cruel and unusual punishment,1 and the First Amendment protects yourright to practice your religion.2 But, the Constitution does not tell you what to do if someone

violates your constitutional or statutory rights.3 The Civil Rights Act of 1871 (Section 1983)is the law allowing prisoners to bring suits challenging state or local prison conditions that

violate constitutional or federal statutory rights.4Specifically, Section 1983 allows you to sue state and local (but not federal) officials who

have violated your rights.5 You can also use Section 1983 to challenge prison rules and

regulationsfor example, restrictions on religious practices or cell assignment policiesthatviolate constitutional and statutory rights. These rights are explained in other Chapters oftheJLM. See Figure 1 of this Chapter for a list of different types of your rights.

You can use a different law, 28 U.S.C. 1331, to sue federal officials for violating yourconstitutional rights.6 Section 1331 gives federal courts the power to hear claims against thefederal government. These lawsuits are usually calledBivens actions.

* This Chapter was revised by Elana Pollak, based on previous versions by Amy Lowenstein, ColinStarger, Ambreen Delawalla, Michael Irvine, Kimberly Mazzocco, Manjula Gill, Amy Longo, PaulClabo, and Kim Sweet. Special thanks to John Boston of The Legal Aid Society for his valuablecomments.

1. U.S. Const. amend. VIII.2 . U.S. Const. amend. I. See Figure 1 of this Chapter for a list of your other important

constitutional rights.3. Constitutional rights are those rights guaranteed by the U.S. Constitution. Section 1983

cases usually involve constitutional rights from the first 10 Amendments to the Constitution (the Bill ofRights) or the 14th Amendment. The Bill of Rights was originally written to limit only the power of thefederal government, but the Supreme Court has ruled that most Bill of Rights guarantees also protectcitizens against state governments. E.g., Ingraham v. Wright, 430 U.S. 651, 673 n.42, 97 S. Ct. 1401,1414 n.42, 51 L. Ed. 2d 711, 731 n.42 (1977) (holding that the 4th Amendment was incorporatedagainst the states by the 14th Amendment).

Federal statutory rights are rights created by federal laws enacted by Congress. Many federalstatutes include their own enforcement provisions, which means that the statute gives you aparticular right and allows you to sue someone for violating that right. If a federal statute has its ownenforcement provision, you must use that statute rather than 1983 to bring your lawsuit. See PartB(3) of this Chapter for more information about statutory rights and 1983.

4. 42 U.S.C. 1983 (2000). See Part B(1) of this Chapter for complete language of the statute.

5. See Monroe v. Pape, 365 U.S. 167, 17374, 81 S. Ct. 473, 477, 5 L. Ed. 2d 492, 498 (1961)(holding that 1983 gives a federal remedy to parties deprived of constitutional rights, privileges, andimmunities by an officials abuse of his position), overruled in part on other grounds, Monell v. N.Y.City Dept of Social Servs., 436 U.S. 658, 695701, 98 S. Ct. 2018, 203841, 56 L. Ed. 2d 611, 63841(1978) (holding that when the official policy of a government agency causes a harm, the government isliable under 1983). If an official deprives you of constitutional or federal statutory rights, you mayalso be able to sue that official under state law. However, 1983 allows you to sue that official underfederal law regardless of whether a state remedy is available. Monroe v. Pape, 365 U.S. 167, 17374, 81S. Ct. 473, 477, 5 L. Ed. 2d 492, 498 (1961) (detailing several reasons you might prefer to use federallaw instead of state law to seek your remedy).

6. 28 U.S.C. 1331 (2000).


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This Chapter is organized into several Parts. This Part, Part A, is the introduction andincludes important warnings and general advice. Part B explains how to use Section 1983 tochallenge state prison conditions and other practices that violate your constitutional orfederal statutory rights. Part C explains what you can sue for (the types of relief, like moneydamages or injunctions), whom to sue, typical defense arguments you will have to defeat,when to sue, where to sue, and how to proceed with your Section 1983 suit. Part D describes

other ways to bring lawsuits, including class actions and state court lawsuits. Part Eexplains Bivens actions against federal officials under 28 U.S.C. 1331. Note that Bivensactions closely rely on case law interpreting Section 1983, so if you want to bring a Bivensaction, you should still read all of this Chapter. Finally, the Appendices to this Chapter havesample forms that you can use as examples when preparing your case.

Figure 1 below explains your rights, the source of each of your rights, and which JLMchapters to read.

Types of PrisonerRights

Source ofConstitutionalRight7

JLMChapter

Mail, visitation, telephone use,and other communications

First Amendment Chapter 19, Your Right toCommunicate with the Outside

World

Religious practices First Amendment Chapter 27, Religious Freedom in

Prison

Searches and seizures ofpretrial detainees; body

searches.

Fourth Amendment Chapter 25, Your Right to Be FreeFrom Illegal Body Searches

Prison conditions:

overcrowding, cleanliness, etc.

Eighth Amendment Chapter 16, Using 42 U.S.C. 1983 and 28 U.S.C. 1331to Obtain Relief From

Violations of Federal Law(this chapter)

Medical care Eighth Amendment Chapter 23, Your Right to Adequate

Medical Care

Assault/failure to protect Eighth Amendment Chapter 24, Your Right to Be FreeFrom Assault

Informational privacy Fourteenth Amendment Chapter 26, InfectiousDiseases: AIDS, Hepatitis, and

Tuberculosis in Prison, andChapter 23, Your Right to

Adequate Medical Care

7. This chart is only a simple outline for in which parts of the Constitution courts havetraditionally located the rights at issue. Some of these rights may also be protected by federal statutes.

Your case will depend on your particular facts, so you should only use this chart as guide to begin yourresearch and then research further on your own.


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Types of PrisonerRights

Source ofConstitutionalRight7

JLMChapter

Due Process in disciplinary

hearings

Due Process Clause of

the Fifth & Fourteenth

Amendments

Chapter 18, Your Rights at Prison

Disciplinary Proceedings

Discrimination on the basis of,race, ethnicity, etc.

Equal Protection Clauseof the Fourteenth

Amendment

Chapter 16, Using 42 U.S.C. 1983 and 28 U.S.C. 1331to Obtain Relief From

Violations of Federal Law(this chapter)

Discrimination on the basis ofgender

Equal Protection Clauseof the Fourteenth

Amendment

Chapter 16, Using 42 U.S.C. 1983 and 28 U.S.C. 1331to Obtain Relief From

Violations of Federal Law

(this chapter)

Rights of prisoners with

mental illness

Eighth & Fourteenth

Amendments

Chapter 29, Special Issues for

Prisoners with Mental Illness

Discrimination on the basis of

disability

Equal Protection Clause

of the Fourteenth

Amendment

Chapter 28, Rights of Prisoners with

Disabilities

Discrimination on the basis of

sexual orientation or genderidentity

Equal Protection Clause

of the FourteenthAmendment

Chapter 30, Special Information for

Lesbian, Gay, Bisexual, andTransgender Prisoners

Access to courtslawlibraries or legal assistance

First, Sixth, &Fourteenth Amendments

Chapter 3, Your Right to Learn theLaw and Go to Court

Figure 1: OtherJLMChapters that may help you bring a Section 1983 Claim

2. Important Warnings and General Advice(a) It Is VERY Important That You Read Chapter 14 of theJLM, The

Prison Litigation Reform Act, Before You Begin Your Section 1983Claim.

The Prison Litigation Reform Act (PLRA)8 is a federal law that significantly affectsSection 1983 cases. You need to make sure that you meet all of the PLRA requirementsbefore you begin any lawsuit. In particular, be aware of the PLRAs three strikes rule,

which gives you a strike whenever you have a case dismissed as frivolous, malicious, orfailing to state a valid legal claim. If you have three cases dismissed as strikes, you will notbe able to use the in forma pauperis procedure9 any longer.

Another PLRA requirement you should be especially careful about is the need to exhaust(use up) your administrative remedieslike prison grievance procedures and appealsbefore

8. 42 U.S.C. 1997e (2000).9. In forma pauperis allows you to file a lawsuit as a poor person. Filing in forma pauperis

allows you to avoid paying many of the normal court fees and costs or pay them on an installment plan.


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going to court. In other words, you need to figure out what procedures exist in your prison toprotest your situation and use all of those procedures.10 Some courts used to require you todescribe what you have done to exhaust your remedies in your complaint; but, in Jones v.

Bock, the Supreme Court said that such rules are not allowed.11 Many prisoner Section 1983complaints are dismissed for failing to exhaust administrative remedies.12

(b)Your Constitutional Rights Are Not Absolute.In most cases, a prisoners constitutional rights are balanced against the state or federal

governments interests (usually, the governments interest in maintaining a secure prisonenvironment). In many situations, your constitutional rights may be outweighed by thegovernments interest in prison security. For most constitutional claims, courts use a testfrom a case called Turner v. Safley13 to determine whether your constitutional rights havebeen violated. This test is discussed in detail in Part B(2)(a) of this Chapter.

(c) Do NOT Use Section 1983 to Challenge Your Original CriminalConviction, Your Sentence, Loss of Good Time, or Denial of Parole.

You cannot use Section 1983 to challenge violations of your constitutional rights in thecourse of your criminal conviction and sentencing, except in very limited circumstances.14

Instead of Section 1983, you can challenge your conviction or sentence by appealing, or ifyour appeal is denied, filing for a writ of habeas corpus or other post-conviction relief.15 Youalso cannot use Section 1983 to challenge a loss of good-time credit, a parole denial, or otherofficial actions that directly affect how much time you spend in prison.16 You should use stateprocedures to challenge these losses. For example, in New York, prisoners can challenge theloss of good-time credit or denial of parole through an Article 78 proceeding. 17 Forinformation about Article 78 proceedings, see Chapter 22 of the JLM, How to Challenge

Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules.

10. SeeJLM, Chapter 15, Inmate Grievance Procedures.11. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 92122, 166 L. Ed. 2d 798, 81314 (2007).

12. See, e.g., Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825, 149 L. Ed. 958, 967(2001) (holding that petitioner did not exhaust all available administrative remedies when he failed toappeal an unfavorable administrative decision to the highest level of review).

13. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Turner applies tosubstantive constitutional rights. Prisoners rights subject to the Turner test include the right tofreedom of speech, freedom of association, free exercise of religion, and to marry (subject torestrictions). Note that 8th Amendment cruel and unusual violations are not judged under the Turnertest. See Part B(2)(a) of this Chapter for more information on the Turner test. Always remember: youmay have a better claim under a federal statute than 1983 and the Turner test.

14. See Heck v. Humphrey, 512 U.S. 477, 48687, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383, 394(1994) (holding that 1983 suits are not available if the outcome of the suit would imply that aprisoners conviction or sentence is invalid, unless he proves that his conviction or sentence has beenreversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorizedto make such a determination, or called into question by a federal courts issuance of a writ of habeas

corpus).15. See Chapter 9 of the JLM, Appealing Your Conviction or Sentence; Chapter 20, UsingArticle 440 of the New York Criminal Procedure Law to Attack Your Unfair Conviction or IllegalSentence; Chapter 13, Federal Habeas Corpus; and Chapter 21, State Habeas Corpus for moreinformation on post-conviction relief.

16. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S. Ct. 1584, 1589, 137 L. Ed. 2d 906, 915(1997) (holding that 1983 claim alleging that the prisoner was deprived of good-time credits withoutprocedural due process could not go forward, because if successful it would imply that the deprivation ofgood-time credits was invalid).

17. If you are a New York State prisoner whose prison is not following its own rules or policies,you can file an Article 78 petition. See Chapter 22 of theJLMfor information on using Article 78.


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However, you can usually use Section 1983 to challenge administrative decisions notdirectly affecting your sentence length.18 This Chapter primarily focuses on how you can usea Section 1983 suit if government officials have abused or denied your constitutional orfederal statutory rights while you have been in prison. You should not use Section 1983 toattack the amount of time to be spent in prison.

(d) Make Sure That All Defendants in Your Section 1983 Lawsuit HadPersonal Involvement19 in the Violation of Your Rights.

Pro se litigants (people who file a suit without a lawyer) often want to include everybodythey can think of as defendants, including supervisory prison officials like wardens or thehead of the state department of corrections, and you may want to do this too. But namingeverybody is often not a good idea. Courts generally dismiss all claims against supervisoryofficials unless you provide enough facts in your complaint to show the particular supervisoryofficials were involved in the violation of your rights.20 If the court quickly dismisses yourclaims against particular defendants because they werent personally involved, the judgemay be less likely to trust the rest of your lawsuit. Try the best you can to find out whichofficials were involved.

(e) Explain the Facts of Your Case in as Much Detail as Possible.The most common mistake made bypro se litigants is failing to state the facts clearly and

adequately. Remember, the court already knows something about the law, but it knowsnothing about your cases facts. Make sure to tell the court exactly what happened, when andwhere it happened, who was involved, and how it happened. If you know why your rightswere violated, you should explain that too. More than anything else, the particular factsof your case will determine the success of your claim. For an example of a complaint,see Appendix A-2 of this Chapter.

Here is an example. Imagine that you are claiming that your access to the prison lawlibrary has been unfairly restricted. The court will want to know: When did you want to getinto the library? Why did you need access to the library? Are there any set rules in yourprison for library access? Exactly how did the denial of access hurt you? Were you unable tomeet a filing deadline or respond to a legal argument? Did you have a case pending or a courtdate? What research were you trying to do? Who stopped you? How many times did thishappen, and when? Include as much of this information as possible in your complaint. Ofcourse, the kinds of questions you will want to ask yourself and answer for the court dependson your claim. Give as much relevant21 detail as possible.

18. See Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 1248, 161 L. Ed. 253, 26263(2005) (allowing prisoners to use 1983 to to request new reviews of parole eligibility, but noting thatthe prisoners winning the lawsuit would not necessarily result in prisoners obtaining earlier parole);Muhammad v. Close, 540 U.S. 749, 75455, 124 S. Ct. 1303, 1306, 158 L. Ed. 2d 32, 38 (2004) (holdingthat a 1983 claim may challenge an administrative decision as long as it does not dispute the validityof the underlying conviction); Leamer v. Fauver, 288 F.3d 532, 543 (3d Cir. 2002) (finding valid a 1983claim challenging a disciplinary action that could affect the granting of parole, but not directly affecting

length of sentence); Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (holding that 1983 may beused to challenge a prisoners term of disciplinary segregation, which does not affect the length ofconfinement).

19. Part B(1)(a) of this Chapter explains how you can prove a defendant official was personallyinvolved in violating your rights.

20. See Monell v. Dept of Soc. Servs., 436 U.S. 658, 663 n.7, 98 S. Ct. 2018, 2022 n.7, 56 L. Ed. 2d611, 619 n.7 (1978) (holding that supervisory officials are not automatically responsible for the actionsof their employees). But sometimes you can name supervisory officials as defendants even if they werenot directly involved in violating your rights.See Part C(2)(b) of this Chapter for more information onsupervisor liability.

21. Relevance is a legal idea. Relevant evidence means evidence having any tendency to


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If possible, try to get sworn, written statementsalso known as affidavits ordeclarations22from witnesses who saw your rights being violated. Try to get as much proofas possible that supports the factual claims you are making in your case.

(f) Confirm the Information in This or Any Other Chapter of theJLMThrough Research in the Library.

Remember that the cases discussed in this Chapter are only examples to use as startingpoints in your research. There are many court decisions relating to Section 1983 claims. It isessential that you research and make sure the courts still follow the cases in the footnotes ofthis Chapter.23 We have tried to make the JLM as up-to-date as possible, but some casesmight not be good law anymore.24

(g)Bivens Actions Against Federal Officials Are Similar to Section1983 Claims Against State or Local Officials.

If you want to sue federal officials, you cannot use Section 1983. Instead, you can bring atype of lawsuit called aBivens action. Most federal prisoners therefore bringBivens actions,which are described in Part E of this Chapter. But becauseBivens actions are very similar toSection 1983 claims, you should still read Parts B and C of this Chapter.

B.Using 42 U.S.C. 1983 to Challenge State or Local Government Action1. Essential Requirements for Obtaining Relief Under Section 1983

Section 1983 states:

Every person who, under color ofany statute, ordinance, regulation,custom, or usage, of any State or Territory or the District ofColumbia, subjects, or causes to be subjected, any citizen of theUnited States or other person within the jurisdiction thereof to thedeprivation of any rights, privileges, or immunities secured by the

Constitutionand laws, shall be liable to the party injured in an actionat law, suit in equity, or other proper proceeding for redress.25

The italicized words and phrases state the three essential requirements (elements) youmust fulfill when bringing a lawsuit under Section 1983. In your pleadings, you need to showall three elements are met.

(a) First Requirement: PersonSection 1983s first requirement is to show a person violated your constitutional or

federal statutory rights. But, the legal definition of person for Section 1983 claims includesmore than actual people (prison wardens, guards, etc.). A city, county, or municipality can

make the existence of any fact that is of consequence to the determination of [your claim] moreprobable or less probable than it would be without the evidence. Fed. R. Evid. 401. Basically, relevantevidence is anything that helps to prove your legal claim.

22. See Chapter 6 of theJLM, Introduction to Legal Documents.

23. See JLMChapters 1, How to Use the JLM, and 2, Introduction to Legal Research, formore information.24. It is very important you read the footnoted cases in full. Try to read any cases cited in those

cases as well. If possible, look up 42 U.S.C. 1983 in the United States Code Annotated (U.S.C.A.) orUnited States Code Service (U.S.C.S.). The U.S.C.A. and U.S.C.S. are commercial publications of theUnited States Code that include the federal statutes and summaries of related cases interpreting thosestatutes. You should also look at the Federal Practice Digest and other digests that have casesummaries organized by subject matter. The process of making sure a case is up-to-date using LexisNexis is called Shepardizing. See Chapter 2 of the JLM, Introduction to Legal Research, for moreinformation on how to Shepardize a case.

25. 42 U.S.C. 1983 (2006) (emphasis added).


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also be a person under Section 1983.26 The definition of person, however, does not includestate governments and their agencies.27 For example, you cannot sue the State of New Yorkor the State Department of Corrections under Section 1983. 28 Thus, while you may sueofficials (actual people) at any level of government (including state government) underSection 1983, you may sue only non-stategovernments and their agencies (such as cities,counties, local agencies, and private corporations) as persons under Section 1983. See Part

C(2) of this Chapter, Whom to Name as Defendants for a further discussion of whom youcan sue using Section 1983.

You should name all persons who violated your rights as defendants, whether they areindividuals, local government agencies, or both. You may name as many defendants as youchoose, as long aseach of them ispersonally involved in the wrong you are claiming. Courtsconsider officials and local government agencies to be personally involved if they:

(1) Directly participated in the wrong; or(2) Knew about the wrong but did not try to stop or fix it; or(3) Failed to oversee the people who caused the wrong, such as by hiring unqualified

people or failing to adequately train the staff; or(4) Created a policy or custom that allowed the wrong to occur.The situations in (1), (2), and (3) are most common in cases when you are challenging

defendants specific behavior or failure to act. The fourth situation occurs when you challengegeneral prison rules.

For an example of a type (1) situation, imagine a case in which an injured prisoner askeda guard for medical care. If the guard refused to get the prisoner help, you might say that hedirectly participated in violating the prisoners right to medical care. An example of a type (2)situation could be a guard seeing a prisoner being attacked by other prisoners, but not tryingto stop the attack. In a type (3) situation, prison officials may be liable for hiring unqualifiedpeople29 or failing to properly train or supervise their staff.30

Finally, in a type (4) situation, prison officials can be liable for creating rules, policies, orcustoms that result in a violation of your rights. These can include written rules or policies 31

26. See Monell v. Dept of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 203536, 56 L. Ed. 2d

611, 635 (1978) (holding that municipalities and local governments are considered persons under 1983).

27. See Will v. Mich. Dept of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d45, 58 (1989) (holding that states may not be sued under 1983).

28. You may, however, be able to sue states and state agencies under other federal laws such asthe Americans with Disabilities Act. See 42 U.S.C. 12101213 (2006); United States v. Georgia, 546U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006) (holding that a state may be suedunder the Americans with Disabilities Act so long as the conduct at issue independently violates the14th Amendment of the U.S. Constitution); Pa. Dept of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct.1952, 1956, 141 L. Ed. 2d 215, 221 (1998) (holding that Title II of the ADA unambiguously extends tostate prison inmates). For information on the rights of prisoners with disabilities, see theRehabilitation Act of 1973, 29 U.S.C. 794 (2006) and Chapter 28 of theJLM, Rights of Prisoners withDisabilities.

29. See Bd. of the County Commrs v. Brown, 520 U.S. 397, 41112, 117 S. Ct. 1382, 139293,

137 L. Ed. 2d 626, 64445 (1997) (holding a municipality may be liable for hiring decisions under adeliberate indifference standard if adequate screening of the employee who allegedly violated plaintiffsrights would have made it clear to a reasonable policymaker that hiring the employee was highly likelyto result in the type of constitutional violation alleged).

30. See City of Canton v. Harris, 489 U.S. 378, 38889, 109 S. Ct. 1197, 120405, 103 L. Ed. 2d412, 42627 (1989) (holding that a municipality may be liable under 1983 for failure to trainemployees, if the failure amounts to deliberate indifference to the rights of persons coming into contactwith those employees).

31. See, e.g., Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001) (holding that a prisons writtenpolicy of unreasonably strip searching all arrestees was unconstitutional); Barrett v. Coplan, 292 F.Supp. 2d 281 (D.N.H. 2003) (allowing prisoner to go forward with claim that prisons blanket policy of


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or unwritten policies.32 You should always be specific about what kind of rule or practice youare challenging and who was responsible for creating the rule or practice (if you know). If youare arguing that an unwritten policy or custom violated your rights, you need to gather asmuch evidence as possible to show that it is widely followed in your jail or prison, so that itwill be considered an actual policy or custom.33

Sometimes, several people or agencies will be involved in violating your rights, and they

will all be involved in different ways. For example, if a prison guard assaults you, you cansue that guard because he participated in violating your rights. If another guard sees theassault but does not try to stop it, you can sue that guard as well for not trying to stop or fixthe wrong. If you complain to the warden that this guard has assaulted you several times,and the warden does nothing, you might also be able to sue the warden. If you then find outthat there is a prison policy of allowing guards to assault prisoners, or that this guard had ahistory of assaulting prisoners at his previous job, then you might be able to sue the localdepartment of corrections for creating an unconstitutional policy or hiring an unqualifiedguard. In this situation, it would probably be obvious to you that the guard who assaultedyou and the guard who watched the assault were personally involved in violating your rights.However, figuring out whether the warden and/or the local department of corrections werepersonally involved is much more complicated. For more about showing personal

involvement, see Part C(2)(b) of this Chapter, Supervisor Liability, and Part C(2)(c) of thisChapter, Municipal or Local Government Liability.

(b) Second Requirement: Under Color of State LawThe second requirement for suing under Section 1983 is that the person who violated

your rights acted under color of state law. This means the person you sue must be someoneacting under the states authority. States have authority over their agencies and employees;over cities, counties, and municipalities; and city, county, and municipal employees. Inprison, persons acting under color of state law include

(1) Employees of state or local prisons or jails, like a prison doctor or guard; and(2) Private parties who make contracts with the state to perform services.34

refusing to consider surgical or hormone treatment for prisoners with gender identity disorder violatedthe 8th Amendment right to adequate medical care).

32. See, e.g.,Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (holding that citys failure tohave procedures in place to verify warrants was an unwritten policy that deprived a man of his right todue process when he was mistakenly held on a warrant for someone else); Garrett v. Unified Gov. of

Athens-Clark County, 246 F. Supp. 2d 1262, 127980 (M.D. Ga. 2003) (noting that even when there isno formal written policy, supervisors can be held liable where there is an unconstitutional custom, butnot where there is a custom that is used unconstitutionally only on particular occasions), revd on other

grounds sub nom., Garrett v. Athens-Clark County, 378 F.3d 1274 (11th Cir. 2004) (per curiam);Gonzalez v. City of Schenectady, 141 F. Supp. 2d 304, 307 (N.D.N.Y. 2001) (holding that an unwrittencity policy of strip searching all detainees prior to court action was unconstitutional).

33. See, e.g.,Henry v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986) (holding thatif there is no formal written policy, the plaintiff must allege a specific pattern or series of incidentsthat support the general allegation of a custom or policy); Gailor v. Armstrong, 187 F. Supp. 2d 729,

734 (W.D. Ky. 2001) (holding that one incident of failure to follow a jails excessive force policy plus 30to 40 other instances of excessive force over a 10-year period for which officers were punished was notenough to show a custom of failing to follow the excessive force policy).

34. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 n.5, 122 S. Ct. 515, 522 n.5, 151 L. Ed. 2d456, 467 n.5 (2001) (noting, but not holding, that state prisoners may sue private prison corporationsunder 1983); West v. Atkins, 487 U.S. 42, 5457, 108 S. Ct. 2250, 225860, 101 L. Ed. 2d 40, 5355(1988) (holding that a doctor under contract with a state to provide medical services to prisoners at astate prison hospital on a part-time basis acts under color of state law within the meaning of 1983);Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (holding that private prison-management corporations and their employees may be sued under 1983); Conner v. Donnelly, 42F.3d 220, 223 (4th Cir. 1994) ([A] physician who treats a prisoner acts under color of state law even


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Be aware that a person may act under color of state law even though the person doessomething that state law specifically prohibits. For example, state law forbids a prison guardfrom assaulting you. But if a prison guard assaults you, he is acting under color of state lawbecause the guard carries a badge of authority from the state.35 Thus, under color of statelaw can be loosely interpreted to mean as a representative of the state.

(c) Third Requirement: Deprived of Federal RightThe third and final requirement is that the person you sue must have deprived you of a

right, privilege, or immunity you have under the Constitution or under federal law. Insimpler terms, they must have violated one of your constitutional or federal statutory rights.Part B(2) explains the general rules that courts have developed for determining whether theconstitutional rights of prisoners have been violated and gives examples of violations ofrights claimed by other prisoners. Part B(3) discusses Section 1983 claims for violations ofrights that have been created by federal statutes.

2. Constitutional Bases for Section 1983 ClaimsNot every violation of state law or prison regulations amounts to a constitutional

violation that you can challenge using Section 1983. For example, a prison may have a

regulation stating that all general population prisoners are allowed five phone calls a week.This right to five phone calls is not a constitutionally guaranteed right, and if the prisonsuddenly allows prisoners to make only one call a week, you wont be able to sue usingSection 1983.36 Instead, you may want to challenge that change in privileges through yourprisons grievance system or in a state court.37 Similarly, if a prison guard harms you or yourproperty by acting negligently (carelessly), this will not be enough to allow you to sue underSection 1983. Instead, you may, in some cases, be able to sue using state tort law.38

though there was no contractual relationship between the prison and the physician.); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (holding private prisons under contract with the state maybe sued under 1983); Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir. 1985) (noting thatdefendant Prison Health Services workers, while not public employees, were clearly state actors);

Christy v. Robinson, 216 F. Supp. 2d 398, 412 (D.N.J. 2002) (noting that doctors employed by a privatemedical association that contracts with the state to provide medical services to prisoners acted undercolor of state law); Mauldin v. Burnette, 89 F. Supp. 2d 1371, 137677 (M.D. Ga. 2000) (holding thatprivate individual who was responsible for signing prisoner in and out of prison and supervising him onwork release acted under color of state law). But compare further,Styles v. McGinnis, No. 00-1415, 28F.Appx 362, 364 (6th Cir. 2001) (unpublished) (holding that a doctor who was an independentcontractor who provided emergency services at a hospital where he treated plaintiff prisoner was notacting under color of state law); Nunez v. Horn, 72 F. Supp. 2d 24, 27 (N.D.N.Y. 1999) (holding that adoctor who treated prisoner was not acting under color of state law because the treatment was providedat a non-prison hospital and the doctor was not under contract with the state or Bureau of Prisons totreat prisoners).

35. Monroe v. Pape, 365 U.S. 167, 172, 81 S. Ct. 473, 476, 5 L. Ed. 2d 492, 497 (1961) (holdingofficials who violate rights by acting illegally or abusing their authority act under color of state law),overruled in part on other grounds, Monell v. N.Y. City Dept of Social Servs., 436 U.S. 658, 695701, 98S. Ct. 2018, 203841, 56 L. Ed. 2d 611 (1978).

36. If a New York state prison is not following its own rules or policies, prisoners can file anArticle 78 petition. SeeChapter 22 of theJLMfor information on filing Article 78 petitions.

37. Chapter 5 of theJLM, Choosing a Court and a Lawsuit: An Overview of the Alternatives,explains the advantages and disadvantages of the different types of lawsuits you can bring in state andfederal court. For information on prison grievance procedures, see Chapter 15 of theJLM, InmateGrievance Procedures. For information on challenging state violations of your right to protect yourbody and property, see Chapter 17 of theJLM, The States Duty to Protect You and Your Property:Tort Actions.

38. See Chapter 17 of the JLM, The States Duty to Protect You and Your Property: TortActions, for information on bringing a tort claim.


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Subsection (a) begins with a general discussion of prisoners constitutional rights and thereasonably related test (called the Turner test). Subsections (b) through (g) outline differentconstitutional protections that prisoners have under specific constitutional amendments.Make sure to read the other chapters of the JLMdiscussed in the following Subsections formore information about particular constitutional rights. Also, remember that your claimmight involve violations of more than one constitutional right. Think about your situation

from as many different angles as possible.

(a) General Framework for Prisoners Constitutional RightsAs discussed earlier, keep in mind that your constitutional rights are not absolute. The

government is allowed to take away some of your rights in order to run the prisonmore safely or smoothly. When you sue government officials or agencies for violating yourrights, the officials or agencies must explain to the court why they acted that way. Thereasons they give must have some rational (logical) relationship to the violation of yourrights. The court then balances your constitutional rights against the reasons the defendantsgive for taking away some of those rights. Most of the time, courts accept the prison officialsexplanations for the violations and decide the case against the prisoner.

In your claim, you should emphasize why your right is important and reasonable and

why the prison officials actions were unnecessary or unreasonable. Just saying that yourrights were violated is usually not enough. You must try to expect and respond to argumentsthat the prison will make about the need for security or order.

One of the leading Supreme Court cases regarding prisoners constitutional rights isTurner v. Safley.39 In Turner, the Supreme Court held that when a prison regulation has animpact on a prisoners constitutional rights, the regulation is still valid if it is reasonablyrelated to legitimate penological interests. 40 Penological means related to prisonmanagement.Legitimate penological interests are valid justifiable interests and concerns ofthe prison and the officials operating it. These may include concerns for safety, discipline,effective punishment, and other management issues. Under the Turner test (also called thereasonably related test), a court will weigh the importance of the states valid penologicalinterests against the impact of the states actions on your constitutional rights.

The Turner test has been used in cases challenging formal and informal prison policiesand practices, as well as individual actions.41 The test applies both to prison regulations andto actions taken by prison officials, individually or together. Note that Turner does not applyto claims of racial discrimination,42 Eighth Amendment violations,43 restrictions on privatereligious exercise,44 and at least some procedural due process claims.45

39. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).40. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987).41. See, e.g.,Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 52931 (E.D. Pa. 2002) (applying Turner

test to chaplains decision to exclude prisoner from services after he disrupted them); Youngbear v.Thalacker, 174 F. Supp. 2d 902, 914 (N.D. Iowa 2001) (applying Turner test to administrative decisioncausing year-long delay in building a sweat lodge).

42. Johnson v. California, 543 U.S. 499, 51011, 125 S. Ct. 1141, 1149, 160 L. Ed. 2d 949, 96162

(2005) (holding that the Turner test could not be applied to evaluate prison policy of assigning newprisoners cellmates of the same race). For more information on equal protection rights in prison, seePart B(2)(g) of this Chapter.

43. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir. 1993) (refusing to apply Turnertest to prisoners 8th Amendment claim); Austin v. Hopper, 15 F. Supp. 2d 1210, 1255 (M.D. Ala. 1998)(refusing to apply the Turner test to prisoners 8th Amendment claim and noting that the SupremeCourt has never used Turner for an 8th Amendment claim). For information on 8th Amendment claimsfor cruel and unusual punishment, see Part B(2)(d) of this Chapter.

44. The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc2000cc-5 (2006), replaced Turners legitimate penological interest standard with a stricter compellinggovernmental interest and least restrictive means test when evaluating government restrictions on


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To use the Turner test, courts evaluate if a regulation (or action) is reasonably relatedby looking at four factors:

(1) Whether a valid connection between the regulation and the governmentsjustification for it exists;46

(2) Whether you have other ways of exercising your constitutional right despite theregulation;47

(3) Whether there will be a ripple effect on the rights of others if you are allowed toexercise the right;48 and

(4) Whether an easy way to meet the regulations goal without limiting yourconstitutional right exists.49

A prison regulation usually survives the Turner test because the governmentsexplanation for the regulation need only be rational (make sense). The government does notneed to show the regulation you are challenging is better than another less restrictiveregulation, but the government does need to demonstrate a connection between theregulation and the purpose it is supposed to accomplish.50

private religious exercise in prisons and other institutions. See Warsoldier v. Woodford, 418 F.3d 989,994 (9th Cir. 2005) (applying RLUIPA to an inmates religious claim to keep his long hair for religiousreasons and finding that the policy was not the least restrictive means available for addressing thecompelling government interest of security). See Chapter 27 of theJLM, Religious Freedom in Prison,for more information on your religious rights.

45. See Washington v. Harper, 494 U.S. 210, 225, 22829, 110 S. Ct. 1028, 1038, 104041, 108 L.Ed. 2d 178, 200, 20203 (1990) (using the Turner test to analyze prisoners substantive due processclaim but not applying it to prisoners procedural due process claim). For further discussion of yourprocedural due process rights, see Chapter 18 of the JLM, Your Rights at Prison DisciplinaryProceedings.

46. Turner v. Safley, 482 U.S. 78, 8990, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79 (1987) ([A]valid, rational connection between the prison regulation and the legitimate governmental interest putforward to justify it must exist).

47. Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79 (1987) (Whereother avenues remain available for the exercise of the asserted right ... courts should be particularlyconscious of giving weight to prison officials decisions.). For example, in McRoy v. Cook County Dept

of Corr., 366 F. Supp. 2d 662, 67879 (N.D. Ill. 2005), a court upheld a prisons cancellation of Muslimservices on certain occasions, in part because the court found that the prison had provided otheropportunities for the prisoner to observe his religion, such as allowing him to keep religious materialsand allowing prisoners to pray together in community rooms.

48. Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 7980 (1987) (Athird consideration is the impact accommodation of the asserted constitutional right will have onguards and other inmates, and on the allocation of prison resources generally.).

49. Turner v. Safley, 482 U.S. 78, 8991, 107 S. Ct. 2254, 226263, 96 L. Ed. 2d 64, 7980 (1987)([T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation. ... [B]ythe same token, the existence of obvious, easy alternatives may be evidence that the regulation is notreasonable, but is an exaggerated response to prison concerns.). A prison may be able to meet thesame goal using one of several different rules. The prison does not have to choose the rule impactingyour rights the least. But, the existence of alternative rules that accomplish the same goals may beconsidered evidence that the rule you are challenging is unreasonable, especially if the alternative rules

do not have additional drawbacks. Turner v. Safley, 482 U.S. 78, 9091, 107 S. Ct. 2254, 2262, 96 L. Ed.2d 64, 80 (1987).50. See Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990) (finding the factual record provided by

the prison was too skimpy to determine whether the prisons refusal to provide a pork-free meal to aprisoner was reasonably related to a legitimate penological interest); Walker v. Sumner, 917 F.2d 382,38687 (9th Cir. 1990) (holding that prison officials must provide support for the justifications of theirregulations, and assertions made without explanation or factual support are not enough; these

justifications must be the actual reasons that the rule was adopted or enforced).But see Whitmire v.Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002) (noting that a plaintiffs case should not be dismissedunless the prison has provided evidence supporting a rational relationship between a policy and thepolicys justification, or there is a common-sense connection between the policy and the prisons


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In Turner, the Court applied this test to a prison regulation banning prisoners fromwriting to or receiving letters from prisoners at other prisons (not including familymembers). The prison argued that letters between prisoners could be used to plan escapes orassaults. The Court, considering factor (1) of the Turner test, found that preventing escapesand assaults was a valid government interest, and that banning letters between prisonerswas a rational way to help prevent escapes and assaults. As for factor (2), the Court noted

that prisoners still had other ways to exercise their First Amendment rights to expressthemselves, since prisoners could write to and receive letters from anyone besides otherprisoners. Under factor (3) of the Turner test, the Court found that allowing prisoners tocorrespond with other prisoners would have a significant ripple effect on others, since itmight threaten the safety of other prisoners and prison guards. Finally, the Court consideredfactor (4), and found that there was no simple alternative way of ensuring that escapes andassaults were not planned through prisoner-to-prisoner letters. After going through all fourfactors of the Turner test, the Court held that the regulation was reasonably related tolegitimate interests in security despite its interference with prisoners First Amendmentrights to free expression and communication.51

But, Turner also decided a regulation preventing prisoners from marrying unless thesuperintendent found compelling circumstances was not reasonably related to legitimate

security concerns.52 The prison claimed that the regulation was primarily justified becauselove triangles among prisoners might lead to violence. The Court stated that there was noreasonable relationship between preventing marriage and preventing violence, since lovetriangles were just as likely when prisoners were unmarried. The Court also mentioned thata prisoners marriage was generally a private decision that would not have a ripple effecton others. The Court emphasized that less restrictive regulations on prisoner marriages,such as those used at many other prisons, would be sufficient to meet the concerns of prisonofficials.

As you can see from these examples, you need to carefully consider how to argue yourclaim in terms of the four factors. You have a better chance of success if a regulation completely deprives you of the ability to exercise your right, since such a rule fails factor (2)above. In such cases, you should suggest other rules that could accomplish the same prison

goal without completely violating your rights. Comparing bad practices of your prison withbetter practices of other prisons might be helpful.The next Subsections address specific constitutional rights and give examples of claims

brought under Section 1983 by prisoners. Many of these rights are addressed elsewhere inthe JLM in much more detail, so make sure you read any relevant JLMchapters listed ineach Subsection.

(b) First Amendment ClaimsThe First Amendment to the Constitution provides that:

penological interests).51. Turner v. Safley, 482 U.S. 78, 93, 107 S. Ct. 2254, 2264, 96 L. Ed. 2d 64, 8182 (1987) (The

prohibition on correspondence is reasonably related to valid corrections goals. The rule is contentneutral, it logically advances the goals of institutional security and safety identified by [state] prisonofficials, and it is not an exaggerated response to those objectives.).But see Allen v. Coughlin, 64 F.3d77, 81 (2d Cir. 1995) (holding that prison had not established a valid reason for regulation banningnewspaper clippings sent through the mail).

52. Turner v. Safley, 482 U.S. 78, 9698, 107 S. Ct. 2254, 226566, 96 L. Ed. 2d 64, 8485 (1987)(The Missouri regulation ... [restricting prisoner marriage] represents an exaggerated response to ...security objectives. There are obvious, easy alternatives to the Missouri regulation that accommodatethe right to marry while imposing a ...[minimal] burden on the ... security objectives.). Although theright to marry comes from the substantive due process part of the 14th Amendment, not the 1st

Amendment, the analysis on how to balance the rights is the same.


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Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedom ofspeech, or of the press; or the right of the people peaceably toassemble, and to petition the Government for a redress ofgrievances.53

In other words, the First Amendment protects your rights to express yourself, practice

your religion, and communicate with others. Your rights under the First Amendment cantake many forms and several chapters of the JLM address these rights in detail. For asummary of your right to freedom of expression and a discussion of your right tocommunicate, see Chapter 19 of the JLM, Your Right to Communicate with the OutsideWorld. If your religious rights are being violated, you may want to sue under the ReligiousFreedom Restoration Act (RFRA)54 or the Religious Land Use and Institutionalized Persons

Act (RLUIPA)55 instead of Section 1983. It is more difficult for the prison to defend aregulation against a RLUIPA or RFRA lawsuit than a Section 1983 lawsuit.56 See Chapter 27of theJLM, Religious Freedom in Prison, for more information.

(c) Fourth Amendment ClaimsThe Fourth Amendment provides that [t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall notbe violated.57 It prohibits unreasonable searches and seizures of pretrial detainees and otherindividuals confined by the state who have not been convicted of a crime. 58 The Fourth

Amendment also protects convicted prisoners from unreasonably intrusive body searches(but not cell searches59), as discussed in Chapter 25 of theJLM, Your Right to be Free FromIllegal Body Searches.

53. U.S. Const. amend. I.54. 42 U.S.C. 2000bb-1 (2006). You may only bring a lawsuit under RFRA if you are a federal,

not a state, prisoner.See City of Boerne v. Flores, 521 U.S. 507, 535, 117 S. Ct. 2157, 217172, 138 L.Ed. 2d 624, 649 (1997) (holding RFRAs application to State governments and officials

unconstitutional); see also OBryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (findingRFRA could constitutionally be applied to federal officers and agencies).

55. 42 U.S.C. 2000cc-1 (2000). If you are a state prisoner, you can use RLUIPA only if theagency operating your prison receives federal funding. See Charles v. Verhagen, 348 F.3d 601, 609 (7thCir. 2003) (holding that the conditions imposed by RLUIPA on states are valid). Most state and localcorrections departments do receive federal funding.

56. See Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir. 2005) (noting that RLUIPA wasdesigned to enhance protection of prisoners religious freedom by replacing the Turner legitimatepublic interest test with a compelling interest test).

57. U.S. Const. amend. IV.58. See Shain v. Ellison, 273 F.3d 56, 6366 (2d Cir. 2001) (allowing a pretrial detainee to

challenge a prisons strip-search policy).59. See Block v. Rutherford, 468 U.S. 576, 591, 104 S. Ct. 3227, 3235, 82 L. Ed. 2d 438, 450

(1984) (holding searches of pretrial detainees cells in their absence to be constitutional because

government interest in conducting searches and maintaining security in this manner exceeded contraryinterests of detainees); Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393,40203 (1984) (holding that the 4th Amendment prohibition against unreasonable searches does notapply to prison cells because [t]he recognition of privacy rights for prisoners in their individual cellssimply cannot be reconciled with the concept of incarceration and the needs and objectives of penalinstitutions); Willis v. Artuz, 301 F.3d 65, 6869 (2d Cir. 2002) (holding that prisoner was notprotected from warrantless cell searches by prosecutors or police even though such searches are notrelated to prison security). Note that the 4th Amendment does apply to searches ofjail cells in somecases. United States v. Hogan, 539 F.3d 916, 92324 (8th Cir. 2008) (holding that a search of a pretrialdetainees jail cell for security reasons, rather than only to add to the prosecutions case, did not violateprisoners 4th Amendment rights).


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(d) Eighth Amendment ClaimsThe Eighth Amendment states that [e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.60 There are several types ofclaims that courts will consider under the cruel and unusual punishment part of the Eighth

Amendment. These claims include alleged harm resulting from prison conditions, inadequatemedical care, and assault. The cases below provide some specific examples of Eighth

Amendment claims courts recognize.You MUST read Chapter 14 of the JLM, The Prison Litigation Reform Act (PLRA), if

you plan to file an Eighth Amendment cruel and unusual punishment claim. The PLRAprohibits federal lawsuits by prisoners for compensatory61 damages for mental or emotionalinjury without physical injury.62

Your claim that prison conditions or practices constitute cruel and unusual punishmentmust satisfy two tests. These tests are referred to as an objective and a subjective test:

(1) The objective test requires that prison conditions be bad enough to be consideredcruel and unusual. To be cruel and unusual in violation of the Eighth Amendment,conditions must amount to unquestioned and serious deprivations of basic humanneeds, constitute a deprivation of the minimal civilized measure of lifesnecessities, be grossly disproportionate to the severity of the crime, or involve thewanton and unnecessary infliction of pain.63 Recent Supreme Court cases haveemphasized threats to prisoners health and safety, such as conditions posing anunreasonable risk of serious damage to [a prisoners] future health64 or excessiverisk to inmate health or safety.65 However, under some circumstances conditionsneed not inflict or threaten serious injury to meet the objective test of the Eighth

Amendment. The Supreme Court has said that cell searches amounting tocalculated harassment unrelated to prison needs may constitute cruel and unusualpunishment,66 and that excessive force may violate the Eighth Amendment even if itinflicts little injury if it is repugnant to the conscience of mankind.67 It is possiblethat other conditions not actually inflicting physical injury (for example, sexuallyintrusive searches,68 credible threats of immediate harm that are not acted on,69 or

60. U.S. Const. amend. VIII (emphasis added).61. See Part C(1)(a) of this Chapter for an explanation of compensatory damages.62. 42 U.S.C. 1997e(e) (2006). The statute states that [n]o Federal civil action may be brought

by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injurysuffered while in custody without a prior showing of physical injury. Courts have held that the PLRAonly prohibits compensatory damages for mental or emotional injury, so you can still ask for injunctiverelief to prevent further injury or for other forms of damages for mental or emotional injuries.

63. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 69 (1981)(finding that practice of placing two prisoners in cells did not violate 8th Amendment, although there isno static test to determine whether conditions of confinement are cruel and unusual).

64. Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22, 32 (1993)(finding that an 8th Amendment claim could be based upon possible harm to future health, andexposure to dangerous levels of cigarette smoke could represent such a risk).

65. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994)(finding that excessive risk of attackwhether for reasons personal to prisoner or all in his situationcould qualify).

66. Hudson v. Palmer, 468 U.S. 517, 530, 104 S. Ct. 3194, 3202, 82 L. Ed. 2d 393, 405 (1984)(although there was no calculated harassment in this case, the Court suggested an 8th Amendmentclaim as an alternative remedy in cases involving calculated harassment). But, note that the Courtfound no calculated harassment had occurred in this case.

67. Hudson v. McMillian, 503 U.S. 1, 10, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156, 168 (1992)(allowing 8th Amendment claim to go forward even absent significant injury or need for medicalattention).

68. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1522, 1530 (9th Cir. 1993) (en banc) (holding


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acts that amount to psychological torture70) may also be considered cruel andunusual.

(2) The subjective test requires that prison officials have a certain state of mind in orderto be found to have violated the Eighth Amendment. In most prison conditions cases,the standard is deliberate indifference, which means that the officials must havehad actual knowledge that they were subjecting you to an excessive risk of harm or

other objectively unconstitutional conditions.71 In use of force cases, however, youmust show that the official who used force against you acted maliciously andsadistically for the purpose of causing harm.72

Under the objective test, as mentioned above, if your complaint is about the conditions ofyour imprisonment, you have to show that, alone or in combination, the conditions deprivedyou of the minimal civilized measure of lifes necessities. 73 Lifes necessities (or basichuman needs) identified by the courts include food, clothing, shelter, medical care andreasonable safety,74 warmth,75 exercise,76 and the basic elements of hygiene.77 If you are

policy of random, non-emergency, suspicionless clothed body searches on female prisoners by maleguards violated the 8th Amendment).

69 . See, e.g., Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (holding that

allegation that corrections officer brandished a gun and threatened to kill prisoner stated an excessiveforce claim under the 8th Amendment); Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986) (holdingthat a prisoner has a right to be free from the terror of instant and unexpected death at the whim ofhis allegedly bigoted custodians).

70. See, e.g., Hicks v. Frey, 992 F.2d 1450, 1457 (6th Cir. 1993) (noting that confining paraplegicprisoner to a cell where he was restricted to his bunk without access to the showers could constitute an8th Amendment violation); Parrish v. Johnson, 800 F.2d 600, 605 (6th Cir. 1986) (finding prisoner whowas threatened with a knife, denied requests for medical attention and continuously aggressivelytaunted by guard could make out an 8th Amendment violation).

71. Farmer v. Brennan, 511 U.S. 825, 83943, 114 S. Ct. 1970, 198082, 128 L. Ed. 2d 811, 82629 (1994) (holding that under the 8th Amendment, prison officials were not liable for confinementunder inhumane conditions unless they satisfied the recklessness test of criminal law, and had knownof the excessive risk to the prisoners health or safety).

72. Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156, 167 (1992)

(finding a beating violated the 8th Amendment because the harm was caused maliciously andsadistically, regardless of what injuries were inflicted).

73. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 69 (1981)(holding putting two prisoners in cells one person does not deprive them of essentials and thus does not

violate the 8th Amendment).74. Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22, 31 (1993)

(citingDeShaney v. Winnebago County Dept of Social Serv., 489 U.S. 189, 199200, 109 S. Ct. 998, 103L. Ed. 2d 249 (1989)) (noting that when the state takes a prisoner into custody it acquires an 8th

Amendment duty to provide for those needs).75. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271, 283 (1991)

(noting that warmth is a single, identifiable human need); Palmer v. Johnson, 193 F.3d 346, 35253(5th Cir. 1999) (holding overnight exposure to winds and cold could violate the 8th Amendment).

76. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271, 283 (1991)(Some conditions of confinement may establish an Eighth Amendment violation "in combination" when

each would not do so alone, but only when they have a mutually enforcing effect that produces thedeprivation of a single, identifiable human need such as food, warmth, or exercise.); Perkins v. Kan.Dept of Corr, 165 F.3d 803, 810 (10th Cir. 1999) (holding allegation of prolonged denial of outdoorexercise could violate the 8th Amendment).

77. Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999) (quotingNovak v. Beto, 453 F.2d 661,665 (5th Cir. 1971)) (holding that deprivation of toilet facilities for prisoners in a small area would

violate the 8th Amendment); see Harper v. Showers, 174 F.3d 716, 717, 720 (5th Cir. 1999) (noting thatallegation of placement into filthy, sometimes feces-smeared cells formerly housing psychiatric patientsstates an 8th Amendment claim); Bradley v. Puckett, 157 F.3d 1022, 102526 (5th Cir. 1998) (holdingthat inability to bathe for two months resulting in a fungal infection requiring medical attention statedan 8th Amendment claim). But see Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (holding that


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trying to show that several conditions combined to deprive you of a life necessity, keep inmind that the conditions must have a mutually enforcing [combined] effect that [deprivesyou] of a single, identifiable human need such as food, warmth, or exercise. 78 For example,you may suffer cruel and unusual punishment if the inadequate heat in your cell-block,combined with the prisons failure to issue blankets, deprives you of warmth.79

Under the subjective test, as mentioned above, you must show that the prison officials

who injured you or failed to provide for your basic human needs did so with a certain state ofmind. What that state of mind is will depend on whether your claim is for inadequate prisonconditions, inadequate medical care, assault, or issues surrounding work or exercise, asdescribed in the next few sections.

The amount of harm that the court will require you to show also varies depending on thetype of Eighth Amendment claim. For example, if you are complaining about prison guardbrutality, you may not have to show that your injury was serious, only that it was morethan minor and the other circumstances of the assault were unjustifiable.80 On the otherhand, if your claim is that you were deprived of medical care, you will have to show that yourmedical needs were sufficiently serious and that prison officials were deliberatelyindifferent to these needs.81

(e) Prison ConditionsPoor prison conditions might violate the Eighth Amendments prohibition of cruel and

unusual punishment. Poor prison conditions can include a lack of basic necessities.82 Theycan also include safety hazards, like substandard fire prevention. 83 Excessively longconfinement to a small cell and denial of outdoor exercise can also violate the Eighth

Amendment. 84 Other conditions amounting to possible cruel and unusual punishment

confinement in cell with blood on floor and excrement on wall was not unconstitutional because it wasonly for three days and cleaning supplies were available).

78. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d. 271, 283 (1991)(Some conditions of confinement may establish an 8th Amendment violation in combination wheneach would not do so alone, but only when they have a mutually enforcing effect that produces thedeprivation of a single, identifiable human need such as food, warmth or exercisefor example, a low

cell temperature at night combined with a failure to issue blankets.).79. See, e.g.,Wilson v. Schomig, No. 93-C-3854, 1998 U.S. Dist. LEXIS 6849, at *910 (N.D. Ill.

May 7, 1998) (holding that lack of heat in prison cells may violate 8th Amendment principles).80. See Hudson v. McMillian, 503 U.S. 1, 10, 112 S. Ct. 995, 100001, 117 L. Ed. 2d 156, 168

(1992) (holding that an assault on a prisoner by prison guards resulting in a cracked dental plate andminor bruises and swelling was enough harm to constitute a valid 8th Amendment claim).

81. See Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 232425, 115 L. Ed. 2d 271, 27980(1991) (holding that a claim of an 8th Amendment violation must show deliberate indifference on partof prison officials). To bring a claim challenging inadequate medical care, see Chapter 23 of the JLM,Your Right to Adequate Medical Care.

82. See, e.g., Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980) (holding that a state mustprovide prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, andpersonal safety so as to avoid the imposition of cruel and unusual punishment); Nicholson v. ChoctawCounty, Ala., 498 F. Supp. 295, 30811 (S.D. Ala. 1980) (finding that 8th Amendment rights had been

violated through, among other things, the unsanitary conditions in the jail, the lack of adequatemedical care, unsafe conditions, and the lack of religious services or instruction).83. See, e.g.,Hoptowit v. Spellman, 753 F.2d 779, 78384 (9th Cir. 1985) (holding that hazardous

work environment, vermin infestation, and inadequate lighting, plumbing, fire safety, and ventilationcould constitute inhumane conditions); Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980) (holdingthat a state must provide prisoners with reasonably adequate ... personal safety so as to avoid theimposition of cruel and unusual punishment).But see Osolinski v. Kane, 92 F.3d 934, 93839 (9th Cir.1996) (requiring more than a single defective piece of equipment to create inhumane conditions).

84. See Perkins v. Kan. Dept of Corr., 165 F.3d 803, 810 (10th Cir. 1999) (holding that prolongeddenial of outdoor exercise could violate the 8th Amendment); Spain v. Procunier, 600 F.2d 189, 199 (9thCir. 1979) (stating that with the exception of inclement weather, unusual circumstances, or


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include unsanitary facilities, overcrowding, and inadequate heating and ventilation.85 Somecourts have held that the failure to protect prisoners from secondhand smoke may violate theEighth Amendment.86 However, such cases generally require prisoners to show that thesecondhand smoke poses an unreasonable risk of future harm to their health.87 For moreinformation about addressing secondhand smoke exposure, see Chapter 23 of theJLM, YourRight to Adequate Medical Care.

Courts have found that overcrowding violates prisoners Eighth Amendment rights,especially where overcrowding leads to harmful consequences.88 For example, in Lareau v.

Manson, 89 prisoners successfully sued because a prison increased the prisoners risk ofcontracting contagious diseases by failing to check newcomers for infection for more than athirty-day period.

Some Section 1983 claims challenge the prison housing arrangements. Courts havegenerally held that double-celling (placing two prisoners in each cell) is constitutional as longas both prisoners are provided with their basic needs, such as enough space to sleep and aclean interior. Double-celling is not by itself considered a constitutional violation, becauseprisoners still enjoy their rights within that two-person set-up and because prison officialshave strong administrative concerns in providing housing for all prisoners. 90 Similarly,administrative segregation is also acceptable and does not violate your rights. 91 But,

disciplinary needs that [make it] impossible, outdoor exercise is required when prisoners are otherwiseconfined in small cells 24 hours per day).

85. See,e.g., Palmer v. Johnson, 193 F.3d 346, 35253 (5th Cir. 1999) (finding that the combinedcircumstances of overnight outdoor confinement without shelter, blanket, heating, or access tobathroom facilities denied necessities in violation of the 8th Amendment); DeMallory v. Cullen, 855F.2d 442, 445 (7th Cir. 1988) (finding that prisoner stated sufficient 8th Amendment claim in 1983complaint alleging unsanitary and dangerous conditions); French v. Owens, 777 F.2d 1250, 125253(7th Cir. 1985) (holding that overcrowding, medical neglect, and failure to protect prisoners fromthreats to safety violated 8th Amendment); Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 4045 (D.P.R. 1988) (ruling that overcrowding, vermin-infestation, and otherwise unsanitary conditions

violated the 8th Amendment); Toussaint v. McCarthy, 597 F. Supp. 1388, 140911 (N.D. Cal. 1984)(finding constitutional violation due to certain conditions, including double-celling (placing twoprisoners in each cell); insufficient ventilation and heating; and inadequate and unsanitary clothing

and bedding), affd in part and revd in part, 801 F.2d 1080 (9th Cir. 1986).86. See Gill v. Smith, 283 F. Supp. 2d 763, 769 (N.D.N.Y. 2003) (allowing prisoner with asthma

to go forward with 8th Amendment claim that exposure to secondhand smoke posed an unreasonablerisk of future harm to his health); Atkinson v. Del. Dept of Corr., No. 99-562-JJF, 2001 U.S. DistLEXIS 25586, at *13 (D. Del. June 27, 2001) (same).

87. See Helling v. McKinney, 509 U.S. 25, 36, 113 S. Ct. 2475, 2482, 125 L. Ed. 2d 22, 33 (1993)(holding that exposure to extreme levels of tobacco smoke that poses an unreasonable risk to futurehealth may be an 8th Amendment violation, and that the plaintiff did not need to wait until he wasactually harmed to ask a court to correct unsafe conditions); Gill v. Smith, 283 F. Supp. 2d 763, 769(N.D.N.Y. 2003) (same); Atkinson v. Del. Dept of Corr., No. 99-562-JJF, 2001 U.S. Dist LEXIS 25586,at *13 (D. Del. June 27, 2001) (unpublished) (same).

88. See, e.g.,Tillery v. Owens, 907 F.2d 418, 42728 (3d Cir. 1990) (holding that double-cellingdue to overcrowding, in combination with other factors, such as the physical condition of the cell,

violated 8th Amendment); Mitchell v. Cuomo, 748 F.2d 804, 80708 (2d Cir. 1984) (granting prisoners

an injunction against the closing of a facility that would result in overcrowding in other prisons); Fisherv. Koehler, 692 F. Supp. 1519, 1564 (S.D.N.Y. 1988) (holding that the level of both prisoner-prisonerviolence and staff-prisoner violence resulting, in part, from overcrowding, violated 8th Amendment),affd, 902 F.2d 2 (2d Cir. 1990).

89. Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981).90. See Rhodes v. Chapman, 452 U.S. 337, 348, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59, 70 (1981)

(holding that double-celling did not violate the 8th Amendment since it did not lead to deprivations ofbasic needs, and did not increase violence among prisoners or create other conditions intolerable forprison confinement).

91. See, e.g., Sealey v. Giltner, 197 F.3d 578, 58990 (2d Cir. 1999) (finding that, under DueProcess Clause, administrative confinement for 101 days of a plaintiff who posed a threat to prison


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administrative segregation imposed on you by prison officials to get back at you for acomplaint or claim you filed is not constitutional. 92 (Note that cases complaining aboutadministrative segregation are brought as substantive due process claims, not Eighth

Amendment claims. For a discussion of substantive due process, see Part B(2)(f)(i) below.Because cases for inadequate cell assignments often overlap with Eighth Amendment claimsfor assault, you should be sure to review the cases cited in this Subsection and Chapter 24 of

theJLM, Your Right to be Free From Assault.)

(i) Inadequate Medical Care and Other Health RisksInadequate medical care has also been found to violate the Eighth Amendment.

Unreasonable risks to your health may violate the Eighth Amendment even if you have notbeen harmed yet.93 For information on your right to medical care, see Chapter 23 of theJLM,Your Right to Adequate Medical Care.

(ii) AssaultMany Section 1983 cases have claimed Eighth Amendment violations because prison

officials failed to protect prisoners from assaults by other prisoners. For more detailedinformation, see Chapter 24 of theJLM, Your Right to be Free from Assault.

(iii) Exercise, Work, and EducationEighth Amendment claims challenging deprivations of exercise and recreation have had

mixed results. Your right to exercise is judged in terms of basic needs. Thus, because prisonofficials are constitutionally required to provide for the health of the prisoners under theirsupervision, prisoners must generally be allowed certain minimum levels of exercise.94 Thisright is violated only if movement is denied, muscles are allowed to waste, or the health ofthe individual is threatened.95 Most courts will not find a deprivation of recreation time to be

safety was not an atypical and significant hardship compared to the ordinary conditions of prisonlife). But see Hanrahan v. Doling, 331 F.3d 93, 95 (2d Cir. 2003) (holding due process focuses on thedisciplinary sentence imposed at the time of the alleged violation).

92. SeeAllah v. Seiverling, 229 F.3d 220, 22324 (3d Cir. 2000) (allowing prisoner to pursue aclaim for violation of his due process rights because he was kept in administrative segregation inretaliation for filing civil rights suits).

93. See Helling v. McKinney, 509 U.S. 25, 3536, 113 S. Ct. 2475, 248182, 125 L. Ed. 2d 22, 3233 (1993) (holding that exposure to extreme levels of environmental tobacco smoke that poses anunreasonable risk to future health may be an 8th Amendment violation, and that the plaintiff did notneed to wait until he was actually harmed to ask a court to correct unsafe conditions). But see Glick v.Henderson, 855 F.2d 536, 540 (8th Cir. 1988) (denying prisoners 8th Amendment claim based onexposure to HIV in prison, because it was based on an unsubstantiated fear with medical science notrecognizing the alleged exposures as possible modes of transmission).

94 . See Davenport v. DeRobertis, 844 F.2d 1310, 131516 (7th Cir. 1988) (finding an 8thAmendment violation where prisoners in a segregation unit were allowed only one hour a week ofexercise outside of their cells); French v. Owens, 777 F.2d 1250, 125556 (7th Cir. 1985) (noting thatlack of physical exercise may be a constitutional violation when it threatens a prisoners health); Spain

v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (affirming trial courts decision that [t]he denial of freshair and regular outdoor exercise and recreation constitutes cruel and unusual punishment, butdeclining to decide whether or not deprivation of outdoor exercise is necessarily an 8th Amendment

violation ). But see Anderson v. Coughlin, 757 F.2d 33, 36 (2d Cir. 1985) ([N]either an occasional daywithout exercise when weather conditions preclude outdoor activity nor reliance on running,calisthenics, and isometric and aerobic exercises in lieu of games is cruel and unusual punishment.).

95. French v. Owens, 777 F.2d 1250, 125556 (7th Cir. 1985) (When movement is denied andmuscles are allowed to atrophy, the health of the individual is threatened and the states constitutionalobligation is affected); see Mitchell v. Rice, 954 F.2d 187, 19293 (4th Cir. 1992) (stating that prisonsmay restrict exercise only in exceptional circumstances, such as when an adult prisoner is indisciplinary segregation).


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a violation of constitutional rights, since general recreation, unlike exercise, does notnecessarily affect your health.

Eighth Amendment claims challenging deprivations of meaningful work or educationalprograms have not been very successful. The Supreme Court has said that because limitedwork hours or delays in accessing education do not inflict pain and are not punishments,work and education generally are not basic needs protected by the Eighth Amendment.96

(f) Fourteenth Amendment Claims: Due Process ClauseThe Due Process Clause of the Fourteenth Amendment forbids the state from

depriv[ing] any person of life, liberty, or property, without due process of law. 97 The Clausehas been interpreted as containing two separate types of protections: substantive dueprocess and procedural due process.

(i) Substantive Due ProcessThe substantive aspect of the Due Process Clause prevents the government from

interfering with your fundamental individual rights in a way that is not reasonably relatedto legitimate penological interests.98 The constitutional idea of liberty includes some rightsthat you retain as a prisoner, and in general, substantive due process claims arise when

state officials deprive you of certain liberties. For example, you have a right to bodily privacy,a right to informational privacy and confidentiality, a right to get married, and a right torefuse medical or psychiatric treatment. These rights are protected under substantive dueprocess, but this protection has limits. The government only violates your substantive dueprocess rights when it acts in a way not reasonably related to a legitimate goal. Reasonablerelation to a legitimate goal is determined using the Turner test, described above in PartB(2)(a).

As mentioned earlier, the right to bodily privacy is a liberty rights you maintain inprison. The right to bodily privacy includes a limited right to not be viewed unclothed orstrip-searched by members of the opposite sex.99 This right is often outweighed by prison

96. See Rhodes v. Chapman, 452 U.S. 337, 348, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59, 70 (1981)

([L]imited work hours and delay before receiving education do not inflict pain, much less unnecessaryand wanton pain; deprivations of this kind simply are not punishments.); Women Prisoners v. Districtof Columbia, 93 F.3d 910, 927, 320 U.S. App. D.C. 247, 264, 113 Ed. Law Rep. 30 (D.C. Cir. 1996)(noting that a prisoner has no constitutional right to work and educational opportunities); Higgason v.Farley, 83 F.3d 807, 809 (7th Cir. 1996) (determining that reduction in privileges, including educationalprograms, does not create an atypical or significant hardship).

97. U.S. Const. amend. XIV, 1. The 14th Amendment applies to state government action. The5th Amendment contains an identical prohibitionNo person shall be ... deprived of life, liberty, orproperty, without due process of lawand applies to the federal government. U.S. Const. amend. V.Federal prisoners therefore usually use the 5th Amendment instead of the 14th Amendment tochallenge due process violations.

98. Turner v. Safley, 482 U.S. 78, 87,107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 7778 (1987) (findingthat prison regulations affecting constitutional rights can only be upheld if they are reasonablyrelated to a legitimate government interest and are not an exaggerated response to those

government concerns); see also Washington v. Harper, 494 U.S. 210, 22526, 110 S. Ct. 1028, 103839,108 L. Ed. 2d 178, 200 (1990) (reasoning that the right to be free of psychotropic medication had to bebalanced against the states duty to treat mentally ill prisoners and run a safe prison).

99. See, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (finding right to bodilyprivacy may have been violatedwhere male prisoners were subject to unclothed observation by femaleguards); Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 1992) (upholding parolees privacy rightsnot to be under surveillance by guards of the opposite sex while giving urine samples).But see Oliver v.Scott, 276 F.3d 736, 739 (5th Cir. 2002) (holding prisons use of female prison guards to strip searchmale prisoner was justified by security concerns); Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980)(finding that issuing suitable sleepwear and covering cell windows during changing times adequatelyprotects female prisoners privacy interest in not being viewed by male guards when compared with the


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security interests, but not always. Bodily privacy also includes the right to an abortion,which some courts have upheld for prisoners.100

The right to informational privacy and confidentiality is another substantive due processright. Some courts have interpreted the Fourteenth Amendment to find that HIV-positiveprisoners have protections against disclosure of their HIV status, at least to non-medicalpersonnel.101 Segregation of HIV-positive prisoners may also violate their substantive due

process right to informational privacy.102Among other rights, the Supreme Court has held the right to marriage103 and the right to

marital privacy104 to be fundamental and protected by substantive due process.There are two important points that you should know if you are thinking of bringing a

Section 1983 lawsuit based on a substantive due process violation. First, if the particularliberty that you think was violated is specifically protected by another constitutionalamendment, you should make sure to claim a violation of that amendment rather than usingthe general substantive due process protection.105 For instance, if you are not given properaccess to medical care, you should not argue that you are suffering a substantive due process

violation of life or liberty, since inadequate medical care is specifically covered by the EighthAmendments prohibition of cruel and unusual punishment.

Second, in order to bring a lawsuit for a substantive due process violation, you must be

able to show that the officials who violated your liberty rights acted with deliberateindifference to your rights. The definition of deliberate indifference varies from circuit to

governments equal employment interests). SeeJLMChapter 25, Your Right to be Free From IllegalBody Searches for more information.

100. See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 33738 (3d Cir. 1987)(holding the countys administrative and economic reasons for limiting access to elective abortions forprisoners did not meet the Turner reasonableness standard); Roe v. Crawford, 514 F.3d 789, 79899(8th Cir. 2008) (holding prison policy prohibiting elective, non-therapeutic abortions did not violate 8th

Amendment rights but was invalid under the Turner test for 14th Amendment violations). But seeGibson v. Matthews, 926 F.2d 532, 53637 (6th Cir. 1991) (holding that prison officials negligentfailure to provide a prisoner with a requested abortion was not a violation of the prisoners 8th

Amendment or 5th Amendment rights); Bryant v. Maffucci, 729 F. Supp. 319, 327 (S.D.N.Y. 1990). Formore information on women prisoners access to abortion, see Part D(2) of Chapter 23 of the JLM,Your Right to Adequate Medical Care.

101. See Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001) (holding the 14th Amendment protects aprisoners right to medical privacy, subject to legitimate penological interests, including administrativeconcerns); Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988) (finding prisoners substantive dueprocess rights were violated when prison officials allowed non-medical employees and other prisoners tolearn their HIV status and prison officials did not claim that any important public interest was servedby these discussions).

102. For information and cases on segregation of prisoners with HIV, seeChapter 26 of theJLM,Infectious Diseases (AIDS, Hepatitis, and Tuberculosis) in Prison.

103. Turner v. Safley, 482 U.S. 78, 9596, 107 S. Ct. 2254, 2265, 96 L. Ed. 2d 64, 83 (1987)(holding the right to marry is subject to substantial restrictions due to incarceration, but remains aconstitutionally protected right in prison).

104. See generally Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267, 138 L.Ed. 2d 772, 787 (1997) (discussing liberty interests protected by substantive due process); Griswold v.Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965) (discussing notions ofprivacy surrounding the marriage relationship).

105. See Jackson v. Hamm, 78 F.Supp.2d 1233, 1242 (M.D. Ala. 1999) ([T]he Supreme Court hasmade clear that if a constitutional claim is covered by a specific constitutional provision, the claim mustbe analyzed under the standard appropriate to that specific provision, not under substantive dueprocess.); County of Sacramento v. Lewis, 523 U.S. 833, 84243, 118 S.Ct. 1708, 171415, 140 L.Ed.2d1043, 1055 (1998) (holding that, because of reluctance to expand substantive due process, the Courtshould use a specific constitutional protection instead of general substantive due process whenpossible).


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circuit, so be sure to look at cases raising similar claims in your circuit to see how yourcircuit defines deliberate indifference.

The second kind of substantive due process violation occurs when a state official acts in away that shocks the conscience. Courts have never supplied a clear definition of what thephrase means. In Rochin v. California, the Supreme Court found that forcibly pumping apersons stomach to obtain evidence was shocking to the conscience.106 In high-speed police

car chases, the Court has stated that a police officers behavior only shocks the conscience ifthe officer acts maliciously and sadistically for the very purpose of causing harm.107 Ingeneral, you will probably only be able to bring this type of claim if a state official hasharmed you by intentionally acting in a way that is truly outrageous.

(ii) Procedural Due ProcessYour Fourteenth (or Fifth) Amendment right to procedural due process means the

government cannot deprive you of life, liberty, or property without going through certainprocedures (due process). To successfully claim your procedural due process rights were

violated, you must show you were deprived of liberty or property, and the deprivationoccurred without enough procedural protection.

Showing that you were deprived of liberty or property means showing that either your