The Eighth Amendment forbids “cruel and unusual punishment” and is probably the most important amendment for prisoners. It has been interpreted to prohibit excessive force and guard brutality, as well as unsanitary, dangerous or overly restrictive conditions. It is also the source for your right to medical care in prison.

1. Protection from Physical Brutality

THE BASICS: Guards do NOT have the right to beat you or harm you unless their action is considered “reasonable” given the situation.
THE RULE: A use of force is excessive and violates the Eighth Amendment when it is not applied in an effort to maintain or restore discipline but is used to maliciously and sadistically cause harm. Where a prison official is responsible for unnecessary and wanton infliction of pain, the Eighth Amendment has been violated.

“Excessive force” by prison guards constitutes cruel and unusual punishment. In a very important Supreme Court case called Hudson v. McMillian, 503 U.S. 1 (1992), the Court found a violation of the Eighth Amendment when prison officials punched and kicked a prisoner, leaving him with minor bruises, swelling of his face and mouth, and loose teeth. The Court held that a guard’s use of force violates the Eighth Amendment when it is not applied “in a good faith effort to maintain or restore discipline” but instead is used to “maliciously and sadistically cause harm.”

“Excessive force” is any physical contact by a guard that is meant to cause harm, rather than keep order.

To decide what force is excessive, judges consider:

  1. The need for force,
  2. Whether the amount of force used was reasonable given the need,
  3. How serious the need for force appeared to the guards,
  4. Whether the guard made efforts to use as little force as necessary, and
  5. How badly you were hurt.

To win on an excessive force claim, you will have to show that force was used against you, but you do not have to show a serious injury or harm. It is usually enough to show some actual injury, even if it is relatively minor. However, if the injury is too minor, the court may not think the force was excessive. For example, one court found that there was no violation of the Eighth Amendment when a prisoner’s ear was bruised during a search. Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997).

It is also very important that you show the “state of mind” of prison officials in excessive force cases. Courts have found a violation of the Eighth Amendment where prison officials were responsible for “the unnecessary and wanton infliction of pain.” “Wanton” means hateful, cruel, or uncalled-for. You can meet this requirement by showing that the force used was not a necessary part of prison discipline. For example, one court found an Eighth Amendment violation when an officer repeatedly hit a prisoner even though the prisoner had immediately obeyed an order to lie face down on the floor, and was already being restrained by four other officers. Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388 (8th Cir. 1997). In another successful case, the prisoner was handcuffed and hit several times in the head and shoulders while in a kneeling position. Brown v. Lippard, 472 F.2d 384 (5th Cir. 2006). On the other hand, the Ninth Circuit held that there was no Eighth Amendment violation when a prisoner was shot in the neck during a major prison disturbance, because the court found that the officer was trying to restore order. Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001).

NOTE: As with many of the other types of claims described in this Handbook, please remember that a constitutional claim in federal court is not your only option. In a guard brutality case, it may be simpler to bring a “tort” case in State court.

It is important to know that you can also sue prison officials under the Eighth Amendment if they fail to protect you from being attacked by another prisoner. This was established in an important Supreme Court case called Farmer v. Brennan, 511 U.S. 825 (1994). To bring a failure-to-protect claim, you need to show “deliberate indifference.” This requires proof that:

  1. Guards knew that there was a substantial risk you would be seriously harmed; and
  2. They failed to respond reasonably to protect you.

You can bring this kind of claim before you are injured, to ask to be moved or placed in protective custody.

To argue a guard unreasonably disregarded an excessive risk to your safety, it can be helpful to mention if the guard’s action violated prison policy. Some courts, though, have said that merely deviating from prison policy is not enough to prove the officer disregarded a substantial risk of harm. In Longoria v. Texas, 473 F. 3d 586 (5th Cir. 2006), the court rejected a claim against an officer who violated a policy against removing more than one prisoner at a time.

2. Rape, Sexual Assault, and Sexual Harassment

Everyone has the right to be free from rape and sexual assault in prison. The Prison Rape Elimination Act (PREA), passed by Congress in 2003, applies to all detention facilities, including federal and state prisons, jails, police lock-ups, private facilities, and immigration detention centers, and specifically recognizes that sexual assault in detention can constitute a violation of the Eighth Amendment. 42 U.S.C. § 15601(13). PREA requires that facilities adopt a zero-tolerance approach to this form of abuse. 42 U.S.C. § 15602(1). Even before PREA was passed, courts agreed that rape or sexual assault of prisoners by correctional officers violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825 (1994); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000). Schwenk involved the rape of a male prisoner, but the court held that the gender of the guard and victim in the incident did not make a legal difference.

While you usually need to meet a two-part test to prove an Eighth Amendment violation, the test is less difficult in cases of rape and serious sexual assault. These cases definitely meet the first prong of the test—there is objectively serious harm or risk of harm. And because sexual assault is unjustifiable conduct without any legitimate penological purpose, you will have no problem meeting the intent standard. To sue prison supervisors for allowing you to be raped or assaulted by a guard (or another prisoner) you will have to meet the deliberate indifference standard explained above.

You can bring a claim for sexual assault even if it does not result in physical injury. One good case to read on this issue is Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000).

Also, rape and sexual assault need not be committed by a prison guard in order to violate the Eighth Amendment. Courts have held that people who are similar to prison guards, such as supervisors in prison work programs, also violate the Constitution by assaulting prisoners. Smith v. Cochran, 339 F.3d 1205 (10th Cir. 2003).

States also may be liable for sexual abuse if facilities have a policy and practice of permitting male staff to view and super¬vise incarcerated women, especially in isolated or remote settings, without female staff present. Cash v. Erie County, 2007 U.S. Dist. LEXIS 50129 (W.D.N.Y. 2007).

Almost all state legislatures have now passed laws criminalizing rape or sexual assault of an inmate by a correctional officer. For an overview of these laws, state-by-state, see Amnesty International, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women, available at
?id=1108309. The Washington College of Law’s Project on Addressing Prison Rape has put together a survey of all state criminal laws prohibiting sexual abuse of individuals in custody available at

a. Outrageous Conduct vs. Unconstitutional Conduct
Unfortunately, just as courts do not always recognize the seriousness of sexual harassment outside of prison, they do not acknowledge the harm that verbal sexual abuse or less invasive sexual touching can cause in prison. Courts often call the behavior of prison guards “outrageous” or “reprehensible” but do not find it unconstitutional. For, example, one court found that it was not cruel and unusual punishment when a corrections official repeatedly made sexual comments about a women prisoner’s body to her, including one instance when he entered her cell while she was sleeping and commented on her breasts. Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995). Other cases that failed to find Eighth Amendment violations, despite noting the seriously inappropriate behavior of prison officials, include Morales v. Mackalm, 278 F.3d 126 (2d Cir. 2002), and Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997).

It is worth noting that in many cases rejecting claims of sexual harassment in prison, the alleged harassment has been of male inmates presenting no history of sexual abuse, often by female officers. For example, one court refused to find an Eighth Amendment violation where four maintenance workers approached a male prisoner and grabbed his buttocks briefly. Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998). The court noted that although the victim claimed to be humiliated and paranoid after the incident, he had not sought medical care for any psychological or emotional trouble.

Not all courts have been so insensitive to the effects of sexual harassment. In Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996), the court upheld a decision ordering a prison to adopt a new sexual harassment policy that prohibited conduct including “(1) all unwelcome sexual activity directed by any DCDC employee at a prisoner including acts of sexual intercourse, oral sex, or sexual touching and any attempt to commit these acts; and (2) all unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature directed by any DCDC employee at a prisoner.” Id. at 933.

More recently, in Daskalea v. District of Columbia, 227 F.3d 433 (D.C. Cir. 2000), a Court of Appeals upheld a prisoner’s claims of sexual harassment and assault based on a series of incidents including a forced striptease in front of all the prisoners and officers at her facility. The court found deliberate indifference based on the plaintiff’s repeated filing of grievance claims and letters to officials seeking help, as well as the widespread and ongoing pattern of harassment and sexual assault at the facility. The court similarly rejected the District’s attempt to argue that it was not deliberately indifferent because it had a policy in place prohibiting such behavior (the policy required by Women Prisoners, discussed in the previous paragraph), based on its finding that no prisoner had ever received a copy of the policy, only a few employees remembered receiving it, and it had never been posted anywhere in the facility.

b. Psychological Harm
As discussed in Chapter Four, Section C, the Prison Litigation Reform Act makes it harder to get compensatory damages for emotional, rather than physical, injury.

Few courts have addressed whether rape or sexual assault is a physical injury for the purposes of the PLRA, probably because they assume that it is, and at least one court has said so explicitly. Kemner v. Hemphill, 199 F. Supp. 2d 1264 (N.D. Fl. 2002). Courts disagree as to whether verbal harassment or sexual touching short of intercourse causes “injury” to the extent that you could bring a money damages claim for mental or emotional injury in conjunction with allegations of this behavior. To understand the impact of this issue, make sure you read Chapter Four, Section C carefully, and research the law in your district.

c. Consensual Sex between Prisoners and Guards
Courts disagree about whether a correctional officer can be held liable for having sex with a prisoner when the prisoner consents to the act. In Carrigan v. Davis, 70 F. Supp. 2d 448 (D.Del. 1999), a federal court in Delaware held that a guard had violated the Eighth Amendment by engaging in vaginal intercourse with a prisoner under his supervision, whether or not she had consented. The court relied on Delaware state law that made it a crime for a correctional officer to have sex with a prisoner, whether or not it was consensual. In Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), however, the Eighth Circuit found that consensual sex does not constitute cruel and unusual punishment because it does not cause any pain, according to that court’s definition.

Today, the federal government and most states have statutes making it a crime for a correctional employee to have intercourse with an inmate, regardless of whether or not he or she consents. A federal law, 18 U.S.C. § 2243, criminalizes sexual intercourse or other physical conduct between an officer and prisoner in any federal prison. You can check out the resources listed earlier in this section for State laws on sexual contact between guards and prisoners.

d. Challenging Prison Supervisors and Prison Policies
If you are a victim of sexual abuse in prison, you may wish to sue not only the person who abused you but also that person’s supervisors. Or, you may want to challenge some of your prison’s policies. Special issues about suing supervisors are discussed in Chapter Four, Section D. Women prisoners in one major case successfully challenged the policies regarding sexual harassment in Washington, D.C., prisons. The court in that case, Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996), ordered the prison to implement a new inmate grievance procedure so that prisoners could report sexual harassment confidentially and get a prompt response, and to start a confidential hotline for women to report instances of abuse, and to create a mandatory training program on sexual harassment for all corrections officers in D.C. prisons.

In another case, however, women prisoners attempted but failed to challenge a County’s policies regarding sexual harassment after they were sexually abused by a prison employee. The court held that a municipality can only be accountable for an Eighth Amendment violation when it shows deliberate indifference, and explained that deliberate indifference only exists under these circumstances where a municipality has actual notice that its actions or failures to act will result in a constitutional violation, or when it is highly predictable that a constitutional violation will occur. Since the County in this case did provide training programs addressing sexual harassment and inmate-officer relations to the officer convicted of abuse, the court did not find deliberate indifference. Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998).

Finally, if you have been sexually assaulted in detention, you may want to obtain a copy of Just Detention International’s booklet, Hope for Healing: Information for Survivors of Sexual Assault in Detention (2009), available at
HopeforHealingweb.pdf, or by writing to Just Detention International, 3325 Wilshire Boulevard, Suite 340, Los Angeles, CA 90010.

3. Your Right to Decent Conditions in Prison

The Basics: You have a right to humane conditions in prison. Conditions that are harsh but not harmful do not violate the Constitution.
The Rule: Prison officials violate the Eighth Amendment when they act with deliberate indifference to a prison condition that exposes a prisoner to an unreasonable risk of serious harm or deprives a prisoner of a basic human need.

The Eighth Amendment’s prohibition of cruel and unusual punishment also protects your right to safe and humane conditions in prison. You can challenge prison conditions that are unsafe or that deprive you of a “basic human need,” such as shelter, food, exercise, clothing, sanitation, and hygiene. However, the standard for unconstitutional conditions is high—courts allow conditions that are “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). You must have evidence of conditions that are serious and extreme.

To challenge prison conditions using the Eighth Amendment, you must meet both “objective” and “subjective” requirements. Farmer v. Brennan, 511 U.S. 825 (1994); Wilson v. Seiter, 501 U.S. 294 (1991). To meet the objective Eighth Amendment standard, you need to show that you were deprived of a basic human need or exposed to serious harm. Under the subjective part of the test, you must show that the prison official you are suing knew you were being deprived or harmed and did not respond reasonably. You must also show how you were injured and prove that the denial of a basic need caused your injury.

Under the objective part of the test, the court will look at whether the condition or conditions you are challenging could seriously affect your health or safety. In considering a condition, a court will think about how bad it is and how long it has lasted. Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998). You must show that you were injured either physically or psychologically, though courts do not agree on how severe the injury must be. You may challenge conditions even without an injury if you can show that the condition puts you at serious risk for an injury in the future, like second-hand smoke. Helling v. McKinney, 509 U.S. 25 (1993).

Under the subjective part of the test, you must show that the official you are suing acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294 (1991). This is an important legal term. It means that the official knew of the condition and did not respond to it in a reasonable manner. Farmer v. Brennan, 511 U.S. 825 (1994). One way to show this is by proving that the condition was so obvious that the official must either know about it or be purposefully ignoring it. Courts will also consider any complaints or grievance reports that you or other prisoners have filed, Vance v. Peters, 97 F.3d 987 (7th Cir. 1996), as well as prison records that refer to the problem. Prison officials cannot ignore a problem once it is brought to their attention.

Prison officials may try to argue that the prison does not have enough money to fix problems, but courts have generally not accepted this defense (although the Supreme Court has not clearly addressed this defense yet). Carty v. Turnbull, 144 F. Supp. 2d 395 (V. I. 2001). It is important to note that while there is a subjective component to Eighth Amendment claims, you do not need to show why prison officials acted as they did.

Remember that courts disagree on whether the PLRA bars claims for damages that rely on a showing of emotional or mental injury without a showing of physical injury. This provision should not affect a lawsuit that tries to change conditions (injunctive relief). However it may be difficult to get money damages for exposure to unsafe or overly restrictive conditions unless they have caused you a physical injury. The courts are not in agreement on this issue, so you may want to just include these claims anyway, and hope for the best.

Below are some of the most common Eighth Amendment challenges to prison conditions. Remember, to prevail on a claim for any of these, you must show both subjective and objective evidence.

  • Food: Prisons are required to serve food that is nutritious and prepared under clean conditions. Robles v. Coughlin, 725 F.2d 12 (2d Cir. 1983). Meals cannot be denied as retaliation, since denying meals (usually several meals; one denial will most likely not succeed) can be a deprivation of a life necessity, violating the Eight Amendment. Foster v. Runnels, 554 F.3d 807 (9th Cir 2009). However, as long as the prison diet meets nutritional standards, prisons can serve pretty much whatever they want. Prisons must provide a special diet for prisoners whose health requires it.
  • Exercise: Prisons must provide prisoners with opportunities for exercise outside of their cells. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Delaney v. DeTella, 256 F.3d 679 (7th Cir. 2001). Courts have not agreed upon the minimum amount of time for exercise required, and it may be different depending on whether you are in the general population or segregation. One court considered three hours per week adequate, Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996), while another approved of just one hour per week for a maximum security prisoner, Bailey v. Shillinger, 828 F.2d 651 (10th Cir. 1987). Some circuits have determined that prisoners cannot be deprived of outdoor exercise for long periods of time. Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005). Prisons must provide adequate space and equipment for exercise, but again, there is no clear standard for this. It is generally acceptable to limit exercise opportunities for a short time or during emergencies.
  • Air Quality and Temperature: Prisoners have successfully challenged air quality when it posed a serious danger to their health, particularly in cases of secondhand smoke, Talal v. White, 403 F.3d 423 (6th Cir. 2005); Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001); and asbestos, LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998). While you are not entitled to a specific air temperature, you should not be subjected to extreme heat or cold, and should be given bedding and clothing appropriate for the temperature. Bibbs v. Early, 541 F.3d 267 (5th Cir. 2008); Gaston v. Coughlin, 249 F.3d 156 (2d Cir. 2001).
  • Sanitation and Personal Hygiene: Prisoners are entitled to sanitary toilet facilities, DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001), proper trash procedures, no roach or rat infestations, and basic supplies such as toothbrushes, toothpaste, soap, sanitary napkins, razors, and cleaning products. See DeSpain (above) and Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006).
  • Overcrowding: Although overcrowding is one of the most common problems in U.S. prisons, it is not considered unconstitutional on its own. Rhodes v. Chapman, 452 U.S. 337 (1981); C.H. v. Sullivan, 920 F.2d 483 (8th Cir. 1990). If you wish to challenge overcrowding, you must show that it has caused a serious deprivation of basic human needs such as food, safety, or sanitation. French v. Owens, 777 F.2d 1250 (7th Cir. 1985); Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984).
  • Rehabilitative Programs: In general, prisons are not required to provide counseling services like drug or alcohol rehabilitation to prisoners unless they are juveniles, mentally ill, or received rehabilitative services as part of their sentence. Women Prisoners of District of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910, 927 (D.C. Cir. 1996).
  • “Supermax” Isolation: Some courts have recognized that constant isolation, illumination, and other sensory deprivation for prisoners with serious mental health issues violates the Eighth Amendment. Jones El v. Burge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001). In cases where this argument failed, the prisoners were not able to prove the subjective element — that the prison knew the conditions were making their mental illness worse. Scarver v. Litscher, 434 F.3d 972 (7th Cir. 2006).
  • Other Conditions: Prisoners have also successfully challenged problems with lighting, Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985), fire safety, Id. at 784; furnishings, Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000); accommodation of physical disabilities, Bradley v. Puckett, 157 F.3d 1022 (5th Cir. 1998); unsafe work requirements, Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990), as well as other inadequate or inhumane conditions.

Instead of challenging a particular condition, you may also bring an Eighth Amendment suit on a “totality of the conditions” theory. You can do this on your own or as part of a class action lawsuit. Using this theory, you can argue that even though certain conditions might not be unconstitutional on their own, they add up to create an overall effect that is unconstitutional. Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999). The Supreme Court has limited this argument to cases where multiple conditions add up to create a single, identifiable harm, Wilson v. Seiter, 501 U.S. 294, 305 (1991), but the courts disagree on exactly what that means.

4. Your Right to Medical Care

The Basics: The prison must provide you with medical care if you need it, but the Eighth Amendment does not protect you from medical malpractice
THE RULE: Prison officials may not act with deliberate indifference to a serious medical need.

The Eighth Amendment protects your right to medical care. The Constitution guarantees prisoners this right, even though it does not guarantee medical care to people outside of prison. The Supreme Court explained that this is because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Unfortunately, the Eighth Amendment does not guarantee you the same level of medical care you might choose if you were not in prison.

If you feel that your right to adequate medical care has been violated, the Constitution is not the only source of your legal rights. You can bring claims under your state constitution or state statutes relating to medical care or the treatment of prisoners. You can also bring a medical malpractice suit in state court. If you are a federal prisoner, you might also bring a claim in federal court under the Federal Tort Claims Act. However, this section will focus exclusively on your right to medical care under the U.S. Constitution.

To succeed in an Eighth Amendment challenge to the medical care in your prison, you must show three things. These are:

  • (a) You had a serious medical need;
  • (b) Prison officials showed “deliberate indifference” to your serious medical need; and
  • (c) This deliberate indifference caused your injury.

Estelle v. Gamble, 429 U.S. 97 (1976). These requirements are described in more detail below.

a. Serious Medical Need
Under the Eighth Amendment, you are entitled to medical care for “serious medical needs.” Courts do not agree on what is or isn’t a serious medical need; you should research the standard for a serious medical need in your circuit before filing a suit.

One court described a serious medical need as “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994). Courts usually agree that a prisoner can show a serious medical need if the “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Estelle, 429 U.S. at 104; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). In other words, if a doctor says you need treatment, or your need is obvious, than it is probably a “serious medical need.”

Courts generally agree that the existence of a serious medical need depends on the facts surrounding each individual. Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003). A condition may not be a serious medical need in one situation but could be a serious medical need in another. Chronic conditions like diabetes, HIV, AIDS, hepatitis, epilepsy and hypertension are serious medical needs, for which you deserve medical attention and care.

In considering whether you have a serious medical need, the court will look at several factors, including:

  1. Whether a reasonable doctor or patient would consider the need worthy of comment or treatment;
  2. Whether the condition significantly affects daily activities; and
  3. Whether you have chronic and serious pain.

For more on these factors, a good case to read is Brock v. Wright, 315 F.3d 158 (2d Cir. 2003).

Mental health concerns can qualify as serious medical needs. For example, several courts have held that a risk of suicide is a serious medical need for the purposes of the Eighth Amendment. Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996); Gregoire v. Class, 236 F.3d 413 (8th Cir. 2000).

It is important that you keep detailed records of your condition and inform prison medical staff of exactly how you are suffering.

b. Deliberate Indifference
The standard for “deliberate indifference” in medical care cases is the same two-part standard (objective and subjective) used in cases challenging conditions of confinement in prison, explained in Part 2 of this section. To prove deliberate indifference, you must show that (1) prison officials knew about your serious medical need and (2) the prison officials failed to respond reasonably to it. Estelle, 429 U.S. at 104; Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). This means that you cannot bring an Eighth Amendment challenge to medical care just because it was negligent (like if a doctor tries to help you but accidentally makes you worse) or because you disagree with the type of treatment a doctor gave you. You can bring those sorts of claims through other means, such as state medical malpractice laws.

To increase your chances of receiving proper care and succeeding in a constitutional challenge to your medical care, you should keep careful records of your condition and your efforts to notify prison officials. You should take advantage of sick call procedures at your prison and report your condition even if you do not think officials will help you. Although courts will not find deliberate indifference just because a prison “should have known” that you had a serious medical need, courts will assume that prison officials knew about your condition if it was very obvious. Farmer v. Brennan, 511 U.S. 825, 842 (1995).

Courts most often find deliberate indifference when:

  • A prison doctor fails to respond appropriately or does not respond at all to your serious medical needs. Scott v. Ambani, 577 F.3d 642 (6th Cir 2009); Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002).
  • Prison guards or other non-medical officials intentionally deny or delay your access to treatment. Brown v. District of Columbia, 514 F.3d 1279 (D.C. Cir. 2008)
  • When these same non-medical officials interfere with the treatment that your doctor has ordered. Estelle, 429 U.S. at 104-05; Lopez v. Smith, 203 F.3d 1122 (9th Cir 2000).

Prison officials can be held liable even for following the advice of prison medical officials if it is obvious, even to a layperson, that the person is in need of hospitalization or other critical medical care. McRaven v. Sanders, 577 F.3d 974 (8th Cir. 2009). Otherwise, prison officials may rely on what a prison doctor tells them. Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006).

Unfortunately, courts do not usually require prison medical staff to give you the best possible care. For example, one court did not find a violation when prison medical staff followed the doctor’s orders about what to do with a prisoner who had been beaten. Even though the prisoner complained several times and the prisoner’s condition was more serious than the doctor had recognized, there was no violation of the Eighth Amendment. Perkins v. Lawson, 312 F.3d 872 (7th Cir. 2002). Another court found that there was not deliberate indifference in a case where a patient received thirteen medical examinations in one year, even though he claimed that a muscular condition in his back did not improve. Jones v. Norris, 310 F.3d 610 (8th Cir. 2002).

c. Causation
Finally, you must show that you suffered some harm or injury as a result of the prison official’s deliberate indifference. If officials failed to respond to your complaints about serious pain but the pain went away on its own, you will not succeed in a constitutional challenge. For example, one court did not find a constitutional violation when a prison did not give a prisoner with HIV his medication on two occasions, because even though HIV is a very serious condition, the missed medication did not cause him any harm. Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003).

In some situations, you may wish to challenge your prison’s medical care system as a whole, and not just the care or lack of care that you received in response to a particular medical need. These systemic challenges to prison medical care systems are also governed by the deliberate indifference standard. Successful cases have challenged the medical screening procedures for new prisoners, the screening policies or staffing for prisoners seeking care, and the disease control policies of prisons. Hutto v. Finney, 437 U.S. 678 (1978).

Finally, the Constitution protects your right to have your sensitive medical information kept private. Prison officials are only allowed to share this information about you if it is reasonably related to a legitimate penological objective. Gossip is not a legitimate penological objective. Powell v. Schriver, 175 F.3d 107, 113 (2d Cir. 1999). Under this standard, courts have said prison staff may not disclose a prisoner’s HIV status or psychiatric history without need.

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