An Overview of the Law Governing
The Rights of Prisoners

By: Michael S. Hamden, Executive Director
North Carolina Prisoner Legal Services, Inc.

As Printed in: Facts & Findings (Journal for Legal Assistants - National Association of Legal Assistants), Vol. XXVII, May 2000, p. 15

[Established in 1978, North Carolina Prisoner Legal Services, Inc, (NCPLS), is a non-profit, public service organization. The program employs ten paralegals, of whom, two have achieved NALA's Specialist Certification, four are Certified Legal Assistants, and all others are candidates for, or are working toward certification. NCPLS serves a population of more than 32,500 prisoners and 10,000 pre-trial detainees, providing information and advice concerning legal rights and responsibilities, discouraging frivolous litigation, working toward administrative resolutions of legitimate problems, and providing representation in all State and federal courts to ensure humane conditions of confinement and to challenge illegal convictions and sentences. No other entity in North Carolina routinely provides these services.]

There is a common misperception that prisoners have "too many rights.(1)" In fact, upon conviction and incarceration, practically all of the rights of citizenship are extinguished. In general, the law requires only that the basic human needs of prisoners be met. See, for example, Rhodes v. Chapman , 452 U.S. 337 (1981). That means that prisoners must be provided food, shelter, clothing, basic medical services for serious health problems, and the means to petition the government for redress of grievances. These modest legal requirements are intended to satisfy only the bare, minimum necessities of life.

Why should we care whether inmates are provided even the basic necessities of life? As the North Carolina Supreme Court observed, "[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself." Spicer v. Williamson , 191 N.C. 487, 490, 132 S.E. 291, 293 (1926).

Dostoevski discerned that "The degree of civilization in a society can be judged by entering its prisons." That is true because broad societal notions of justice and morality define the conditions that will be permitted to prevail in prison. But it is also true because more than 90% of the people in prison will eventually be returned to free society and will mirror the lessons of justice and morality that prison instilled in them. Given the state of our nation's correctional facilities, that should concern us all. Everyone has a stake in our system of justice and in the humane treatment of prisoners.

In the following paragraphs, we will explore the most important protections that the law affords prisoners, as well as the mechanisms by which those protections are most often enforced.

Conditions of Confinement

We've all heard or read stories about inmates who have filed federal lawsuits because their dinner was cold, or because they didn't get a peanut butter and jelly sandwich, or for some other equally absurd reason. What you probably have not heard is that virtually all such claims have always been summarily dismissed as frivolous. See, e.g., 28 U.S.C. § 1915(e).

The kinds of conditions that can be successfully challenged as unconstitutional must amount to "cruel and unusual punishment" under the Eighth Amendment. To establish such a case, it must be shown that prisoners are being deprived of the basic necessities of life, such as food, shelter, health care, or personal security. Rhodes v. Chapman, 452 U.S. 337 (1981).

But proof of such a deprivation is not enough. In addition, Eighth Amendment claims must be based upon conduct that is "wanton." To establish his case, a prisoner must prove that correctional officials knew that he was being deprived of a basic necessity, and that they were deliberately indifferent to that deprivation. Wilson v. Seiter , 501 U.S. ___, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Restrictive or even harsh conditions are part of the penalty prisoners pay for their offense against society, according to the Rhodes Court. Rhodes v. Chapman, 452 U.S. 337 (1981).

Medical Attention and Care

Prisoners have a similarly limited right to medical care, as illustrated by Estelle v. Gamble , 429 U.S. 97 (1971). In Estelle , a Texas prisoner brought a Section 1983 lawsuit against certain correctional officials alleging that the defendants violated the Eighth Amendment by failing to provide him adequate medical treatment. The United States Supreme Court held that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' . . . proscribed by the Eighth Amendment." Estelle , 429 U.S. at 104 (citation omitted). The Court cautioned, however, that "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." Id. at 106 (emphasis added). Because the prisoner, Gamble, had been seen by medical personnel on 17 occasions over a three-month period, the Court concluded that there was no evidence of "deliberate indifference." At most, the prisoner challenged the judgement of medical professionals, and while that might state a claim of negligence in State court, it did not make out a constitutional claim. Id. at 107. Consequently, the case was dismissed.

This stringent standard means that, for example, an inmate who goes into surgery for an appendectomy and emerges without his left leg probably has no constitutional claim (although he may have a claim of medical malpractice under state law).

The Use of Force

As you probably know, officers have the authority to use force against a prisoner to maintain prison order and security. Although the courts ordinarily defer to the judgment of correctional officials concerning such matters, it has been recognized that the Constitution protects against a use of force that is unreasonable or excessive. A four-part test has been developed to determine when the constitutional line has been crossed. A federal court will look at the following factors to determine whether there has been a constitutional violation:

(1) the need for the application of force;

(2) the relationship between the amount of force that was used and

(3) the extent of injury inflicted; and

(4) 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.

King v. Blankenship , 636 F.2d 70, 73 (4th Cir. 1980).

"[W]henever 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 v. McMillian , 503 U.S. ___, 112 S.Ct. 995, 117 L.Ed.2d 156, 165-66 (1992)(referring to Whitley v. Albers , 475 U.S. 312 (1986)). "Under the Whitley approach, the 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, 'or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.' Whitley , 475 U.S. at 321, 106, S.Ct. 1078, 89 L.Ed.2d 251. . . . The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it." Hudson v. McMillian , 503 U.S. ___, 112 S.Ct. 995, 117 L.Ed.2d 156, 166 (1992). "[C]ourts must ask both if 'the officials act[ed] with a sufficiently culpable state of mind' and if the alleged wrongdoing was objectively 'harmful enough' to establish a constitutional violation." Id., 503 U.S. at ___ ,117 L.Ed.2d at 166, (citing Wilson v. Seiter , 501 U.S. ___, ___, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)).

In summary, to establish a constitutional claim of excessive force, an inmate must prove that he suffered serious injury as the result of the malicious infliction of pain under circumstances that disclose no penological justification.

Access to the Courts

According to the case, Bounds v. Smith , 430 U.S. 817 (1977), prisoners have a constitutional right of meaningful access to the court. Correctional officials have an affirmative duty to facilitate that access by providing the inmate with the of services of a lawyer, or by allowing the prisoner access to legal reference materials with the help of someone trained in the law. More recently, that principle was reaffirmed in Lewis v. Casey , 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). According to the Lewis Court, the Constitution requires only that inmates be able to file certain kinds of lawsuits, and not necessarily that they be able to litigate those claims effectively - the courts have a duty to construe pro se pleadings liberally. Boag v. MacDougall , 454 U.S. 364, 365 (1982)(per curiam); Haines v. Kerner , 404 U.S. 519, 520-21 (1972). The legal assistance that must be provided to prisoners is that needed "to attack their sentences, directly or collaterally, and . . . to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Lewis v. Casey, 116 S.Ct. 2174, 2182.

But the right of access to the court also protects prisoners' communications with their attorneys, Ex parte Hull , 312 U.S. 546 (1941); Blanks v. Cunningham , 409 F.2d 220 (4th Cir. 1969); as well as with law students and legal assistants employed by an attorney. Procunier v. Martinez , 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). "Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid." Id., 416 U.S. at 419, 94 S.Ct. at 1814, 40 L.Ed.2d at 243. See, for example, White v. Sullivan , 474 F.2d 16 (5th Cir.1973)(Unreasonable restrictions on legal mail between a prisoner and his attorney can constitute a denial of access to the courts, in violation of the United States Constitution.)

However, it can be quite difficult to enforce this right. To state a constitutional claim, the prisoner has sometimes been required to show that a matter which he had in litigation was materially prejudiced by the restriction. White v. White , 886 F.2d 721 (4th Cir. 1989)(involving legal mail).

Prison Regulations

The courts have been exceptionally deferential to the experience and expertise of correctional officials in cases questioning the validity of prison rules and regulations. Although inmates retain some rights under the First Amendment (for example, the right of free speech and the right freely to practice one's religion), those rights may be restricted in the interest of legitimate penological concerns. Turner v. Safley , 482 U.S. 78 (1987). Some of the interests that are commonly held to constitute "legitimate penological concerns" include the security of the institution and the protection of prisoners and the public from violent or predatory inmates. In the Turner case, for example, the Court upheld a Missouri prison regulation that prohibited all correspondence between prisoners at different institutions even though the regulation impinged upon First Amendment rights because such correspondence presented the potential for the communication of escape plans and other threats to institutional security. The regulation was permissible, even though correctional officials have the right to read and censor such correspondence. The administrative inconvenience of doing so, however, trumped the protections of the First Amendment where prisoners were concerned. Turner v. Safley , 482 U.S. 78 (1987).

Mechanisms to Enforce Legally Protected Rights

Administrative procedures are the most frequently used method employed by inmates to enforce the protections afforded by law. Inmate grievance procedures vary from state to state, as does the quality of justice those procedures afford. Some detention facilities have no administrative grievance procedure at all, while others limit the matters that may be the subject of grievances and/or the number of grievances that can be filed. There are also significant variations in the kind of remedies allowed when complaints are found to be meritorious (for example, monetary damages are often unavailable, even for the replacement value of inmate property that has been negligently misplaced or destroyed). Although it is a difficult thing to measure, most correctional professionals and judicial officials credit a meaningful grievance procedure as a highly effective means of reducing prisoner litigation. A great deal of litigation arises out of circumstances in which an inmate was treated unfairly and administrative mechanisms are inadequate to rectify the problem. For example, our office was appointed to represent an inmate who filed a federal lawsuit based upon a claim that the refusal of prison officials to provide him a pair of tennis shoes violated his Eighth Amendment rights. As ridiculous as that sounds, it turned out that a prison doctor had prescribed the tennis shoes to relieve serious problems the inmate experienced when he wore standard prison issue. But the superintendent decided to disregard the doctor's order, apparently to make that point that it was the superintendent, and not medical staff, who ruled the roost. After several appeals, the Inmate Grievance Resolution Board concluded that the inmate's grievance was meritorious and recommended that the shoes be provided. When they were not, the inmate filed suit. Although the case settled for a $40 pair of tennis shoes shortly after our appointment, the matter unjustifiably consumed limited judicial resources and several hours of attorney time on both sides, the cost of which far exceeded the amount of money in controversy. An effective grievance procedure would almost certainly have averted litigation in this instance, as well as in hundreds of similar cases.

Of course, even an effective grievance procedure may not resolve all legal disputes. Nonetheless, the procedure can be worthwhile from different perspectives and for several reasons. From the perspective of correctional professionals, a grievance can offer an opportunity to review procedures to determine compliance with policy, to reassess the legality of policy, and to attempt to defuse animosities through explanation and accommodation. At a minimum, a grievance can serve notice that a matter may become the subject of litigation. From the perspective of an inmate, a meaningful grievance procedure offers a chance that legitimate concerns will be acknowledged and addressed, and damages (whether to property or person) may be compensated. An explanation of the reasons for official action can be equally gratifying, especially for those inmates who feel they have been treated arbitrarily or in legally impermissible ways (such as racial discrimination). Finally, those inmates who intend to seek legal redress will want to exhaust existing grievance procedures in order to determine the version of facts and defenses that the defendants may assert. Additionally, the Prison Litigation Reform Act makes exhaustion of the grievance procedure a prerequisite to the institution of a claim under 42 U.S.C. §1983. Prison Litigation Reform Act, Pub.L. 104-134, §§ 801, 802, amending 18 U.S.C. § 3626 (1996).

42 U.S.C. §1983

When inmates decide to institute legal action for a violation of their rights, they most often do so pursuant to 42 U.S.C. §1983, which provides in pertinent part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. §1983.

In the last twenty or thirty years, virtually every word of that statute has been scrutinized, and special limitations have been read into its language. For example, a human being is not always a "person" under the statute, but an agency or a municipality sometimes is. See, for example, Monell v. Dep't of Social Servs. , 436 U.S. 658, 690 (1978)(county may be liable for policy, custom or usage that violates the Constitution).

"Capacity" is one of the most confusing aspects of litigation under §1983 law, even for experienced attorneys. People who "act under color of state law" cannot be sued in their official-capacity for damages under Section 1983. Will v. Michigan Dept. of State Police , 491 U.S. 58 (1989). Instead, to recover monetary damages, the action must be brought against the person in his individual capacity. This can be accomplished simply by stating that the defendant is sued in his "individual capacity." Kentucky v. Graham, 473 U.S. 159 (1985). But suits to require a person to do, or to quit doing something (claims for injunctive relief) must be brought against that person in his official capacity. Ex parte Young , 209 U.S. 123 (1908).

Action "under color of state law" exists where someone acts with the authority of the state, or where that action fairly may be attributed to the state. See, for example, West v. Atkins, 487 U.S. 42 (1988)(State may not avoid liability for non-delegable duty through device of contract with private physician).

Prison Litigation Reform Act

While §1983 litigation can be quite complex, many important principles are fairly well-settled and easily accessible in reported decisions. Less certainty exists regarding the effect of the Prison Litigation Reform Act, which was enacted by Congress on April 26, 1996. As previously discussed, the Act imposed several new restrictions and rules to prisoner cases filed in federal court. The following are some of the more important provisions.

Filing Fees

All prisoner-plaintiffs are assessed a $150 filing fee when the complaint is submitted to the court. The fee is imposed as soon as the case is filed and a court docket number is assigned. The fee will be collected even if the case is dismissed as frivolous, and even if plaintiff takes a voluntary dismissal. For indigent prisoners, the fee will be deducted from prison trust accounts over time. More specific information about applicable procedures (which vary among different federal judicial districts) should be available from the clerk of court.

Successive Claims -- "Three Strikes, You're Out."

Prisoner-plaintiffs who have previously filed lawsuits concerning conditions of confinement in a correctional facility may run into trouble under PLRA's "three strikes provision." When three or more previous cases were dismissed either as frivolous, malicious, or for failing to state a claim, the federal court can prevent the filing of any subsequent lawsuits except when the plaintiff is under imminent danger of serious physical injury.

Filing Requirements in the Various Districts

In general, a complaint should be filed where the defendants live and the incident happened. Each District has its own set of rules of procedure and instructions for filing prisoner lawsuit, including slightly different requirements about the number of copies that must be submitted for filing, who must serve the complaint, whether trust fund information will be required, and other details.

State Claims

Nothing in 42 U.S.C. 1983 confines its application to federal courts, and a state court may entertain a claim under the statute, whether or not a state law claim accompanies it. Martinez v. California, 444 U.S. 277 (1980). In North Carolina, for example, it is well-settled that state courts may exercise concurrent jurisdiction over 42 U.S.C. 1983 claims. Snuggs v. Stanley County Department of Public Health, 310 N.C. 739, 314 S.E.2d 528 (1984) (per curiam); Harwood v. Johnson, 326 N.C. 231 (1990).

Because negligence is not actionable under §1983, Davidson v. Cannon, 474 U.S. 344 (1986), state courts provide the forum for redress of such claims. That is equally true of professional malpractice claims, which are premised upon negligent conduct.

State law may also provide other causes of action. Statutes or common law often allow actions sounding in tort (assault, battery, false imprisonment, libel, or slander, being most commonly prosecuted by inmates). But an important and under-utilized source of legally enforceable rights may be the state constitution. For instance, many state constitutions have functional equivalents to the Due Process Clause, the Equal Protection Clause, and the prohibition on "cruel and unusual punishments." Claims based upon state constitutional guarantees may be actionable, and may offer advantages to prisoner litigants.

Conclusion

Although the range of legally protected rights for prisoners is very narrow, each such right is all the more precious, and its violation, all the more egregious. As participants in the administration of our system of justice, we have a special obligation to those among us who are without power or influence, those who are most despised and least deserving. That obligation is to be sure that even they are treated humanely and justly. By holding that line, we can help to make a reality the inscription above the Supreme Court, "Equal Justice Under Law."

About the author: Michael S. Hamden has practiced law for 15 years, first as an attorney with NCPLS, and beginning in 1995, as the Executive Director of that organization. Hamden, who serves as the prisoner advocate on the Institutional Review Board for the Protection of Human Subjects at Research Triangle Institute, has authored several articles and publications, including "'Special Providers' Offer Assistance to the Poor," The North Carolina State Bar Journal, Summer 1998, and a self-help manual for pro se prisoner litigants, "Tort Claims Before the North Carolina Industrial Commission." Hamden has delivered presentations to a host of organizations and associations, including the Society of Correctional Physicians (Atlanta, GA); the NC Association of County Commissioners, the NC Sheriffs' Association, and Sedgwick James of the Carolinas Insurance Company; the NC County Attorneys' Conference; and the School for Sheriffs, Deputies and Jailers (North Carolina Institute of Government, Chapel Hill, NC). A long-standing member of the American Bar Association, Hamden serves as a member of the ABA's Corrections and Sentencing Committee, and as the ABA's liaison to the American Correctional Association, where he holds positions as a Commissioner of Accreditation (ruling on applications for ACA accreditation and enforcing operational standards nationwide) and as a member of the Standards Committee ( promulgating standards which reflect "best practices" for all types of correctional facilities).

Footnote

1. There are two main reasons for the misperception. The media revel in reporting law-suits filed by prisoners who make ridiculous claims or demand outrageous amounts of monetary compensation for bruised feelings or perceived slights. The fact that virtually all such cases are summarily dismissed by the courts goes unreported.

But prisoners, and prisoner advocates also bear some responsibility. Too often, our focus has been on prisoner rights without any acknowledgment that prisoners also have responsibilities. For example, in North Carolina, it is the law and policy of the State that all able-bodied prisoners shall work diligently "for the public benefit to reduce the cost of maintaining the inmate population while enabling inmates to acquire or retain skills and work habits needed to secure honest employment after their release." N.C. General Statute Section 148-26.

North Carolina prisoners are meeting their responsibilities. At the end of July, 1999, for instance, of about 31,000 inmates in custody of the State, 22,218 were assigned to work or educational programs. In 1998, about 21,00 inmates worked on road squads, provided disaster relief, constructed and maintained prisons, and completed a variety of other assignments designed to benefit citizens and communities across the State. The Department of Correction did not track all hours worked on prison jobs, but DOC reports that in two programs, work release jobs and the Governor's Community Work Program, inmates worked more than 20 million hours in 1998. See, DOC Office of Public Information, www.doc.state.nc.us.

The policy is exactly as it should be, blending two important objectives of incarceration; punishment and rehabilitation. Justice requires that the inmate bear the costs of his crime, and sound public policy should provide a mechanism to equip the prisoner with the knowledge and skills that will be needed to establish a productive, law-abiding life upon release from prison.