Larry the Lawyer called yesterday, and said that there was a recent Supreme Court opinion that I might find interesting. It dealt with the rights of prisoners to sue the Government for mistreatment. He said that the case reaffirmed prisoners’ rights in this area, and loosened one restriction that some lower courts had imposed.
I was surprised by the call, in part because I had no idea that prisoners had such rights. If you get your idea of the law from the media – movies, television and talk radio – you would naturally assume that prisons are violent places, that anything goes to control the population, and that no one looks carefully at the methods used so long as the prisons are quiet.
“Well, G,” said Larry, “your assumption would be wrong. The case I want to discuss is Jamey L. Wilkins v. Officer Gaddy
In general, the United States the Constitution forbids “cruel and unusual” punishments. The Eighth Amendment states, quite baldly, that:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
“Let me stop you for a minute,” I said. “I wonder why the popular media doesn’t mention this. Given this language, there doesn’t seem to be much room for maneuver. A judge can’t order a crucifixion in this country, and prisoners can’t be tortured.”
Larry thought I was being overly simplistic. (Actually, I think he said ‘simple minded.’) “You’re right, G,” he said, “in that the principle was established by the Bill of Rights. However, the application hasn’t always been clear.
There is a school of thought, for example, that the Eighth Amendment originally governed the sentences that judges could impose, but did not apply to conditions in prisons.  It was not extended to prisons until 1976.”
“OK,” I said, “but you’re not denying that today the Eighth Amendment does apply to prison conditions?”
“No, I’m not,” he said, “and more importantly, neither is the Supreme Court. Today the issue is more likely to be: What must be proved to show that the Eighth Amendment has been violated?
Wilkins v. Gaddy is a case in point. Wilkins was a prisoner in the North Carolina state prison system. In March 2008 he filed suit in Federal District Court, alleging that he was ‘maliciously and sadistically” assaulted without provocation by a corrections officer. He alleged the circumstances involved, and that he was injured to some extent.
His injuries included a bruised heel, lower back pain, increased blood pressure, migraine headaches, dizziness and psychological trauma.
The Court dismissed his complaint on the theory that ‘[I]n order to state an excessive force claim under the Eighth Amendment, a plaintiff must establish that he received more than a de minim[is] injury.’” The injuries alleged by Wilkins did not meet this test.
- His alleged high blood pressure and mental health issues were pre-existing conditions, in that he had sought treatment for them even before the incident;
- His back pain, headaches and bruised heel were de minimis.
“I’m confused again,” I said, “did the judge make any finding as to whether the assault had actually occurred?”
“Apparently not,” said Larry; “It appears that he simply concluded that if Wilkins wasn’t seriously hurt, he couldn’t proceed with his case.”
“OK,” I said, “Wilkins needs to prove more than a de minimis injury. What is that?”
“I’m not sure,” said Larry. “ I think the expression comes from ‘de minimis non curat lex,’ or ‘the law takes no account of trifles.’ I’m not sure what it means in this context; perhaps more than a trifling injury.”
“That’s not very informative either. One person’s trifle can be another’s catastrophe. These days, for example, you can spend a lot of money treating back pain and headaches.”
“Right. Anyway, Wilkins appealed the decision to the Court of Appeals for the Fourth Circuit, and lost there; and then took his case to the Supreme Court.”
“How did that come out?”
“Glad you asked. In a nutshell, the Supreme Court did not agree with the decisions below. It said that the Fourth Circuit (and the District Court) had misinterpreted Supreme Court precedent.
The basic issues had been decided in Hudson v. McMillian, a 1992 decision of the Supreme Court. The Fourth Circuit was of the opinion that, under that case, “absent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injuries are de minimis.”
The Supreme Court disagreed.
“This Court’s decision did not, as the Fourth Circuit would have it, merely serve to lower the threshold for excessive force claims from ‘significant’ to ‘non-de minimis’- whatever those ill ill-defined terms might mean. Instead, the Court aimed to shift the ‘core judicial inquiry’ from the extent of the injury to the nature of the force – specifically, whether it was nontrivial and ‘was applied maliciously and sadistically to cause harm.””
If you are analyzing a guard’s use of force in a prison, the core issue, under the Eighth Amendment, is not whether a significant injury has been sustained. It is, instead, whether the force was applied “in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”  ‘
“So Larry,” I said, “I’m getting a totally different picture of these situations than I had at the beginning of our discussion. My initial impression was that “anything goes” in the prisons unless there is too much bad publicity. Now I think what you’re telling me is that a prison guard’s conduct is open to examination in most, if not all, situations involving force. Doesn’t that put an undue burden on the prisons?”
“It puts a burden on them to be accountable for their actions; I don’t know if that qualifies as ‘undue.’ Depends on your point of view, I guess. But if you are a warden, and you have a lot of ‘excessive force’ cases, that should tell you that you need to take corrective action.
Also, I wouldn’t think that there would be a flood of new litigation simply as a result of this opinion. Remember, the basic issues were decided in 1992. Wilkins v. Gaddy merely clarifies the amount of injury that must be alleged in a complaint.”
“OK, suppose a complaint of this type is filed and the case goes to trial. Will evidence as to injuries ever be relevant to the trial?”
“Yes, of course. Remember, the Wilkins case is allowed to proceed; he hasn’t prevailed on the facts. He must now prove that that the assault actually occurred and that it was carried out ‘maliciously and sadistically.’ And, the lack of injury – if that is the case – may tend to prove that no assault actually occurred, or that the force used was reasonable, and so forth.
On the other hand, ‘[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim simply because he has the good fortune to escape without serious injury.’”
“Thanks a lot, Larry. Do you have anything else you would like to add?”
“Just one thing, G. I would like to editorialize just a bit. I can see, on a slow news day, a lot of pundits attacking this case as handcuffing law enforcement, under cutting the Republic and so forth. They will say that more restrictions on the courts, or the Constitution, are necessary to protect us from those who wish us harm. You know the line: Restrictions are necessary to protect freedom.
To them I would offer the following from William Pitt:
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
“Ouch! Sounds like you might want to discuss the Patriot Act next time around. Thanks again, Larry.”
 Jamey L. Wilkins v, Officer Gaddy, 559 U.S. ___ (2010) (slip opinion) (hereafter, “Wilkins v. Gaddy”).
 The first 10 amendments to the Constitution (the “Bill of Rights) date from 1791.
 Wilkins v. Gaddy, 559 U.S. ___ (2010) (Thomas opinion) at p. 1: “At the time the Eighth Amendment was ratified, the word ‘punishment’ referred to a penalty imposed for the commission of a crime.”
 Id. See Estelle v. Gamble, 429 U.S. 97 (1976)
 Wilkins v. Gaddy, 559 U.S. ___ (2010) (Per Curiam) at p. 2.
 503 U.S. 1 (1992).
 Wilkins v. Gaddy, 559 U.S. ___ (2010) (Per Curiam) at pp. 5 – 6.
 Wilkins v. Gaddy, 559 U.S. ___ (2010) (Per Curiam) at p. 6.
 Wilkins v. Gaddy, 559 U.S. ___ (2010) (Per Curiam) at pp 3 - 4.
 Id. at p. 5. See also p. 4, quoting Hudson v. McMillian, 503 U.S. 1, 7, 9. (1992): When prison officials maliciously and sadistically use force to cause harm,’ the Court recognized, ‘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.
 Oxford Dictionary of Quotations (2d Ed. 1955) at 379.