CACI No. 3042. Violation of Prisoner’s Federal Civil Rights - Eighth Amendment - Excessive Force (42 U.S.C. § 1983)
Judicial Council of California Civil Jury Instructions (2023 edition)
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3042.Violation of Prisoner’s Federal Civil Rights - Eighth
Amendment - Excessive Force (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] used excessive force
against [him/her/nonbinary pronoun]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] used force against [name of plaintiff];
2. That the force used was excessive;
3. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s use of excessive force was a substantial
factor in causing [name of plaintiff]’s harm.
5. Force is excessive if it is used maliciously and sadistically to cause
harm. In deciding whether excessive force was used, you should
consider, among other factors, the following:
(a) The need for the use of force;
(b) The relationship between the need and the amount of force
that was used;
(c) The extent of injury inflicted;
(d) The extent of the threat to the safety of staff and inmates, as
reasonably perceived by the responsible officials on the basis of
the facts known to them; [and]
(e) Any efforts made to temper the severity of a forceful response;
[and]
(f) [Insert other relevant factor.]
Force is not excessive if it is used in a good-faith effort to protect the
safety of inmates, staff, or others, or to maintain or restore discipline.
New September 2003; Revised June 2010; Renumbered from CACI No. 3010
December 2010; Renumbered from CACI No. 3013 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to 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 3.
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There is law suggesting that the jury should give deference to prison officials in the
adoption and execution of policies and practices that in their judgment are needed to
preserve discipline and to maintain internal security in a prison. This principle is
covered in the final sentence by the term “good faith.”
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d 920].)
• “The Constitution ‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones, and it is now settled that ‘the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.’ In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison officials, who
may not, for example, use excessive physical force against prisoners. The
Amendment also imposes duties on these officials, who must provide humane
conditions of confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’ ” (Farmer v. Brennan (1994)
511 U.S. 825, 832 [114 S.Ct. 1970, 128 L.Ed.2d 811], internal citations omitted.)
• “[A]pplication of the deliberate indifference standard is inappropriate when
authorities use force to put down a prison disturbance. Instead, ‘the question
whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on “whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” ’ ” (Hudson v. McMillian (1992) 503 U.S. 1, 6 [112 S.Ct. 995,
117 L.Ed.2d 156], internal citations omitted.)
• “[W]e hold that whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments Clause, the
core judicial inquiry is that set out in Whitley: whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” (Hudson, supra, 503 U.S. at pp. 6-7, internal citations omitted.)
• “[E]xcessive force under the Eighth Amendment does not require proof that an
officer enjoyed or otherwise derived pleasure from his or her use of force.”
(Hoard v. Hartman (9th Cir. 2018) 904 F.3d 780, 782.)
• “[T]here is ample evidence here that the Supreme Court did not intend its use of
‘maliciously and sadistically’ . . . to work a substantive change in the law on
excessive force beyond requiring intent to cause harm. Chief among this
evidence is the fact that the Supreme Court has never addressed ‘maliciously and
sadistically’ separately from the specific intent to cause harm. It has even, on one
occasion, omitted any mention of ‘maliciously and sadistically’ altogether and
simply explained that ‘a purpose to cause harm is needed for Eighth Amendment
liability in a [prison] riot case.’ ” (Hoard, supra, 904 F.3d at p. 789.)
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• “Whether the prison disturbance is a riot or a lesser disruption, corrections
officers must balance the need ‘to maintain or restore discipline’ through force
against the risk of injury to inmates. Both situations may require prison officials
to act quickly and decisively. Likewise, both implicate the principle that ‘prison
administrators . . . should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.’ ”
(Hudson, supra, 503 U.S. at p. 6, internal citations omitted.)
• “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
excessive force . . . 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 citations omitted.)
• “[T]his Court rejected the notion that ‘significant injury’ is a threshold
requirement for stating an excessive force claim. . . . ‘When prison officials
maliciously and sadistically use force to cause harm,’ . . . ‘contemporary
standards of decency always are violated . . . whether or not significant injury is
evident. Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less than some
arbitrary quantity of injury.’ ” (Wilkins v. Gaddy (2010) 559 U.S. 34, 37 [130
S.Ct. 1175, 175 L.Ed.2d 995].)
• “This is not to say that the ‘absence of serious injury’ is irrelevant to the Eighth
Amendment inquiry. ‘[T]he extent of injury suffered by an inmate is one factor
that may suggest “whether the use of force could plausibly have been thought
necessary” in a particular situation.’ The extent of injury may also provide some
indication of the amount of force applied. . . . [N]ot ‘every malevolent touch by
a prison guard gives rise to a federal cause of action.’ ‘The Eighth Amendment’s
prohibition of “cruel and unusual” punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of mankind.’ An inmate
who complains of a ‘push or shove’ that causes no discernible injury almost
certainly fails to state a valid excessive force claim. . . . [¶] Injury and force,
however, are only imperfectly correlated, and it is the latter that ultimately
counts.” (Wilkins, supra, 559 U.S. at pp. 37-38, original italics, internal citations
omitted.)
• “ ‘[S]uch factors as the need for the application of force, the relationship
between the need and the amount of force that was used, [and] the extent of
injury inflicted,’ are relevant to that ultimate determination. From such
considerations inferences may be drawn as to whether the use of force could
plausibly have been thought necessary, or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur. But equally relevant are such factors as the extent of
the threat to the safety of staff and inmates, as reasonably perceived by the
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responsible officials on the basis of the facts known to them, and any efforts
made to temper the severity of a forceful response.” (Whitley v. Albers (1986)
475 U.S. 312, 321 [106 S.Ct. 1078, 89 L.Ed.2d 251], internal citations omitted.)
• “ ‘[T]he appropriate standard for a pretrial detainee’s excessive force claim
[under the Fourteenth Amendment] is solely an objective one.’ In contrast, a
convicted prisoner’s excessive force claim under the Eighth Amendment requires
a subjective inquiry into ‘whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.’ ”
(Rodriguez v. County of L.A. (9th Cir. 2018) 891 F.3d 776, 788, internal citation
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 v. Baca (9th Cir. 2018) 895 F.3d 1176, 1182, fn. 4.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘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. 10, Deprivation of Rights Under Color of State
Law - Law Enforcement and Prosecution, ¶ 10.01 (Matthew Bender)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law - Prisons, ¶ 11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.70 (Matthew Bender)
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