CACI No. 3040. Violation of Prisoner’s Federal Civil Rights - Eighth Amendment - Substantial Risk of Serious Harm (42 U.S.C. § 1983)
Judicial Council of California Civil Jury Instructions (2023 edition)
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3040.Violation of Prisoner’s Federal Civil Rights - Eighth
Amendment - Substantial Risk of Serious Harm (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] subjected
[him/her/nonbinary pronoun] to prison conditions that violated [his/her/
nonbinary pronoun] constitutional rights. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That while imprisoned, [describe violation that created risk, e.g.,
[name of plaintiff]was placed in a cell block with rival gang
members];
2. That [name of defendant]’s [conduct/failure to act] created a
substantial risk of serious harm to [name of plaintiff]’s health or
safety;
3. That [name of defendant] knew that [his/her/nonbinary pronoun]
[conduct/failure to act] created a substantial risk of serious harm
to [name of plaintiff]’s health or safety;
4. That [name of defendant] disregarded the risk by failing to take
reasonable measures to address it;
5. That there was no reasonable justification for the [conduct/failure
to act];
6. That [name of defendant] was performing [his/her/nonbinary
pronoun] official duties when [he/she/nonbinary pronoun] [acted/
purported to act/failed to act];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s [conduct/failure to act] was a
substantial factor in causing [name of plaintiff]’s harm.
Whether the risk was obvious is a factor that you may consider in
determining whether [name of defendant] knew of the risk.
New September 2003; Revised December 2010, June 2011; Renumbered from CACI
No. 3011 December 2012; Revised December 2014, June 2015, May 2017, May
2020
Directions for Use
Give this instruction in a case involving conduct that allegedly created a substantial
risk of serious harm to an inmate. (See Farmer v. Brennan (1994) 511 U.S. 825
[114 S.Ct. 1970, 128 L.Ed.2d 811].) For an instruction on deprivation of medical
care, see CACI No. 3041, Violation of Prisoner’s Federal Civil Rights - Eighth
Amendment - Medical Care. For an instruction involving the deprivation of
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necessities, see CACI No. 3043, Violation of Prisoner’s Federal Civil Rights - Eight
Amendment - Deprivation of Necessities.
In element 1, describe the act or omission that created the risk. In elements 2 and 3,
choose “conduct” if the risk was created by affirmative action. Choose “failure to
act” if the risk was created by an omission.
In prison-conditions cases, the inmate must show that the defendant was deliberately
indifferent to the inmate’s health or safety. (Farmer, supra, 511 U.S. at p. 834.)
“Deliberate indifference” involves a two part inquiry. First, the inmate must show
that the prison officials were aware of a “substantial risk of serious harm” to the
inmate’s health or safety, but failed to act to address the danger. (See Castro v.
County of L.A. (9th Cir. 2016) 833 F.3d 1060, 1073.) Second, the inmate must show
that the prison officials had no “reasonable” justification for the conduct, in spite of
that risk. (Thomas v. Ponder (9th Cir. 2010) 611 F.3d 1144, 1150.) Elements 3, 4,
and 5 express the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475, 125
L.Ed.2d 22].)
• “Our cases have held that a prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’ For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a
prison official must have a ‘sufficiently culpable state of mind.’ In prison-
conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations
omitted.)
• “[D]irect causation by affirmative action is not necessary: ‘a prison official may
be held liable under the Eighth Amendment if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.’ ” (Castro, supra, 833 F.3d at p. 1067, original
italics.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
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from circumstantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107 S.
Ct. 2254, 96 L. Ed. 2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply to
Eighth Amendment claims. . . . The existence of a legitimate penological
justification has, however, been used in considering whether adverse treatment is
sufficiently gratuitous to constitute punishment for Eighth Amendment purposes.”
(Grenning v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
. . . conditions of confinement cases, we instruct juries to defer to prison
officials’ judgments in adopting and executing policies needed to preserve
discipline and maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016)
836 F.3d 1239, 1254, internal citation omitted.)
• “However, our precedent should not be misread to suggest that jail officials are
automatically entitled to deference instructions in conditions of confinement or
excessive force cases brought by prisoners, or § 1983 actions brought by former
inmates. We have long recognized that a jury need not defer to prison officials
where the plaintiff produces substantial evidence showing that the jail’s policy or
practice is an unnecessary, unjustified, or exaggerated response to the need for
prison security.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1183, internal
citations omitted.)
• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter, supra, 895 F.3d at p. 1182, fn. 4.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
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‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law - Prisons, ¶¶ 11.02-11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.28 (Matthew Bender)
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