Texas Civil Rights Project
American Civil Liberties Union of Texas
** This information is not a substitute for speaking with a lawyer. Before filing a lawsuit, always
consult an attorney. This information is not a substitute for a lawyer’s advice. **
The United States Constitution and other laws protect you, even while you are in prison. Even
though you have been convicted of a crime, you do not give up all your civil rights. “Prisoners do not
shed all constitutional rights at the prison gate.” 1 You have the right to receive medical care, food,
clothing, water, and shelter, and to be reasonably safe while in prison. 2 You have the right not to be
denied participation in prison programs because of a disability. 3 You have the right to participate in
religious services and practice your religion. 4
You can enforce all these rights by filing a lawsuit in court. You need to know, however, it is
very difficult for a prisoner to win a lawsuit, even if you have a lawyer. Lawsuits can also take a long
time—sometimes many years. It is always best to think about if your problem is serious enough to
require a lawsuit, and to try every other way to fix your problem short of filing a lawsuit. This chapter
of the manual will help you with both options.
If you have a problem in prison, you should first try to get help from TDCJ. For example, you
should talk to an officer or supervisor you think might listen, send I-60s or letters to officials, and write
grievances. TDCJ has control over all its prisons, and is in the best position to help you immediately.
Though you may feel TDCJ does not want to help you, it is always best to try because TDCJ can help
the fastest.
TDCJ has a grievance process that lets prisoners make formal complaints. It is important to use
every step in the grievance process. If you ever want to file a lawsuit about a problem, you will have to
show the court you tried to use the grievance process first. Even if the grievance system doesn’t seem to
work, you MUST file a Step 1 AND Step 2 grievance about your problem before you can go to court.
Reasons to File a Grievance:
If you are not safe, or your life is in danger;
You need medical attention; 5
You are being physically or sexually abused;
TDCJ policies or procedures are being violated;
You are being threatened by an employee or another prisoner;
Sandin v. Conner, 515 U.S. 472, 485 (1995).
Farmer v. Brennan, 511 U.S. 825 (1994).
Americans with Disabilities Act, 42 U.S.C. § 12131; Pennsylvania Department of Corrections v.
Yeskey, 524 U.S. 206 (1998).
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc.
Before filing a grievance about a medical problem, you should make a sick call request to see a doctor.
You are being harassed or retaliated against for using the grievance process;
You are have trouble accessing the courts;
Your personal property at the prison has been lost or damaged; or
Basic conditions are inhumane (like the prison is too hot, too cold, or unclean).
How to file a grievance:
There is no special way to file grievances. You do not need to be a writ writer to write a grievance. The
best thing to do is use plain English (or whatever language you can write in) to say what your problem is
and what you want. You do not need to use any legal language. Just write the grievance like you would
explain the problem to a friend.
Before you file a grievance, you need to try “informal resolution.” “Informal resolution” means talking
to someone who works for the prison about the problem. Sending an I-60 or letter to a prison official
can also be “informal resolution.” You will need to write on the grievance form who you talked to and
what they told you.
You can get grievance forms in the law library, housing areas, or from a shift supervisor.
Follow these guidelines when you write your grievance:
– Only write about the issue you want help with. Each grievance can only address one problem. If you
have more than one problem, write a different grievance for each problem.
When you write the grievance, explain who you talked to and what they did (if anything) about your
Be sure to file your grievance within 15 days of learning about the problem, or as soon as possible. If
you did not file the grievance within 15 days of learning about the problem, write why you did not file
Make sure you include how you would like to have the problem solved. For example, if you are sick and
need to see a doctor, write “I want to see a doctor.” Ask for everything you want to solve the problem
in the grievance.
Do not use indecent, vulgar, or threatening language. TDCJ has the right to refuse to process a
grievance with bad language.
TDCJ has 40 days to respond to your Step 1 grievance. You can file a Step 2 grievance as soon as you receive a
response to your Step 1 grievance. If 40 days have passed and you have still not received a response to the Step 1,
and you have not been notified that there will be a delay, you can file the Step 2 grievance.
You must file a Step 2 grievance within 15 days of receiving the response to your Step 1 grievance.
TDCJ has 35 more days to process a Step 2 grievance.
Thirty-five days after you filed your Step 2, unless you have been notified there will be a delay, you can take your
claim to court.
If you want to file your lawsuit in State court, you need to file the lawsuit within 31 days of receiving
a response to the Step 2 grievance. 6 If you want to file your lawsuit in Federal court, your deadline to
file the suit is the “statute of limitations” discussed in the section on Individual Litigation.
Texas Civil Practice and Remedies Code § 14.005(b).
Always keep copies of your returned grievances. You may need them later on and it can be difficult to obtain
copies. Check your TDCJ Offender Handbook for more information about how to file a grievance.
What to do if your problem is not resolved in TDCJ:
When TDCJ employees at the unit will not solve your problem, other TDCJ offices might be
able to help. These offices handle complaints from prisoners and their friends or family.
For serious medical and mental health care problems, send I-60s or letters to the Patient
Patient Liaison Office
Office of Professional Standards
3009-A Hwy 30 West
Huntsville, TX 77340
Phone: (936) 436-1265
For unnecessary or excessive force, or other staff misconduct or criminal activity within TDCJ,
send I-60s or to the Office of the Inspector General (also known as "OIG"):
Office of the Inspector General
P. O. Box 4003
Huntsville, TX 77342-4003
For problems with TDCJ's calculation of your time or release date, send I-60s or letters to the
State Counsel for Offenders:
State Counsel for Offenders
P.O. Box 4005
Huntsville, TX 77342-4005
If you have been raped or sexually assaulted, or are afraid you may be, you can send a letter or
I-60 to TDCJ’s Prison Rape Elimination Act Ombudsman:
Sexual Assault Ombudsman
PO Box 99
Huntsville, TX 77342-0099
Family members, friends, and outsiders (but not prisoners) may send letters to the
Ombudsman. (Family members, friends, and other outsiders also can telephone or write the other
offices above. Many prisoners feel it helps them if someone on the outside contacts TDCJ for
TDCJ-ID Ombudsman
P.O. Box 99
Huntsville, TX 77342
(936) 294-6791 (ph); (936) 294-6325 (fax)
You can use truck mail for all TDCJ offices that investigate complaints or problems including
Patient Liaison, OIG (Office of the Inspector General), and State Counsel for Offenders.
Individual Litigation
If TDCJ will not help you, you have the right to file a lawsuit. Because of the Prison Litigation
Reform Act (PLRA), you must file grievances before you can file a lawsuit. A court may dismiss your
case, no matter how bad your problem is, if you have not tried to go through the grievance process first
(including Step 2). If you think you might ever want to file a lawsuit, you must go through the
entire grievance process (including Step 2). You must ask for everything you believe TDCJ should
do to make up for what happened to you, even if you do not think the process will work.
It is not easy to file a lawsuit, and it is very hard to win. Before filing a lawsuit, you should
always try to contact a lawyer. There are very few lawyers in Texas who help prisoners, but it is
important to try to get help before going to court by yourself. Remember, however, most civil claims in
Texas must be brought within 2 years of the incident. 7 If you are close to running out of time to file
your suit, it is better to file without a lawyer to make sure your case will not be dismissed because it was
filed too late. Also, many problems are too small to be worth a lawsuit, even when they involve
something very important to you.
Congress passed a law in 1871 called “Section 1983.” 8 It protects your constitutional rights.
Section 1983 lets you file a lawsuit in federal court when your rights are violated. The law library has
forms that will help you file a Section 1983 lawsuit.
Section 1983 lets you bring a lawsuit against people who violate your rights. 9 TDCJ is not a
“person,” so you cannot sue TDCJ directly. 10 If you try to sue TDCJ directly, your case will probably
be dismissed. State entities like TDCJ cannot be sued most of the time. 11 If a TDCJ employee has
mistreated you, you need to sue that employee personally, not TDCJ.
See Texas Civil Practice & Remedies Code, Chapter. 16. Civil rights and personal injury cases must be
filed within 2 years. Sexual assault cases must be filed within 5 years (but if you wait beyond 2 years
you can only sue the person who actually assaulted you, not their supervisors or anyone else who could
have prevented the assault, see Twist v. Lara, 2007 U.S. Dist. LEXIS 52256 (S.D. Tex. July 2007)).
Malicious prosecution claims must be brought within 1 year. If your case involves some other type of
problem, consult Chapter 16 of the Civil Practices and Remedies Code to see how long you have to file
your case. Separate deadlines apply to filing criminal appeals, which are discussed in the State Counsel
for Offenders Legal Manual.
Section 1983 is named for its location in the United States Code—42 U.S.C. § 1983.
42 U.S.C. § 1983.
See Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
See Frew v. Hawkins, 540 U.S. 431 (2004). There are some exceptions. The Americans with
Disabilities Act, Rehabilitation Act, and Religious Land Use and Institutionalized Persons Act all allow
you to sue TDCJ directly. These laws are discussed later in this chapter.
There is an exception to this general rule. If you are seeking an injunction you can sue TDCJ’s
executive director in his or her “official capacity.” 12 An “injunction” means a change to a prison policy
or how the prison operates. An injunction does not include money. If you want both an injunction and
money, you can sue the individual employees “in their individual capacities” for money, and the
executive director of TDCJ in his or her “official capacity” for an injunction. 13
In the United States, we have two court systems—state courts and federal courts. You can file a
lawsuit for violations of your constitutional rights in state or federal court. If you file in state court, and
only complain about violations of your federal rights, the defendants will have the option to move your
case to federal court. If you only have complaints about violations of state law, you can only file your
case in state court.
If you are thinking about filing a lawsuit, you should know about a 1996 law called the Prison
Litigation Reform Act (PLRA). The PLRA makes it harder for prisoners to file lawsuits in federal
court. Texas has a similar law that makes it hard for TDCJ prisoners to file cases in state court. 14 The
PLRA contains many parts, but the following parts are the most important.
“Exhaustion of administrative remedies” (42 U.S.C. § 1997e(a))
The first thing to remember about the PLRA is before you file a lawsuit, you must try to
resolve your complaint through the prison’s grievance system. If your Step 1 grievance is denied, you
must file a Step 2 grievance. If you file a lawsuit before taking your complaints through every step of
the grievance system, it will almost certainly be dismissed. (This manual explains how to file a
grievance above. Consult your TDCJ Offender Handbook for more information about how to file a
See Ex Parte Young, 209 U.S. 123 (1908). See also McCarthy v. Hawkins, 381 F.3d 407 (5th Cir.
If your rights were violated before you got to TDCJ, you would sue the officials in charge of the
governmental agency that violated your rights instead of the executive director of TDCJ. For example,
if your rights were violated in the county jail, you could sue the sheriff of the jail for an injunction if you
thought you might have to go back to that jail in the future. Moreover, if your rights were violated
because the county had a policy, pattern, or practice of violating people’s civil rights, you can sue the
county directly. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91
(1978). Unlike TDCJ, a county is not a state agency so the county may be sued when its policies are
See Texas Civil Practice & Remedies Code, Chapter 14. The Texas law is similar to the federal
PLRA in many ways.
What is “exhaustion”?
“Exhausting your remedies” means filing a grievance and all available appeals. 15 You must
mention every problem you want to raise in your lawsuit in your grievance first. 16 However, if you
cannot file your grievance for some reason beyond your control, no administrative remedy is
“available,” and you may file in court. 17 Even if you have a good excuse for not filing your grievance
properly, you should still do your best to go through Step 1 and Step 2 in the grievance process. If staff
fail to respond to your grievance within the time limits, you still must appeal to the next stage. 18 If you
do not receive a response to your Step 2 grievance, you can file a lawsuit. 19
You must also file your Step 1 and Step 2 grievances during the time required by TDCJ. 20 Your
Step 1 grievance must be filed within 15 days of the event you are complaining about. The Step 2
grievance must be filed within 15 days of when you receive a response to the Step 1.
There is an exception to the rule if prison staff tell you that you cannot file a grievance or cannot
appeal. 21
Courts disagree when you have an excuse for not using the grievance system. 22 The safest
course is always to file a Step 1 AND Step 2 for each claim you want to raise and each defendant
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004); Randle v. Woods, 299 Fed. App’x 466 (5th Cir.
See, e.g., Johnson v. Johnson, 385 F.3d 503, 519 (5th Cir. 2004) (prisoner’s racial discrimination
claims dismissed because he failed to mention them in grievance).
Miller v. Norris, 247 F.3d 736 (8th Cir. 2001). See also Days v. Johnson, 322 F.3d 863 (5th Cir.
2003) (prisoner unable to file grievance because hand was broken); Almond v. Tarver, 468 F.Supp.2d
886 (E.D. Tex. Aug. 15, 2006) (grievance system not available to prisoner who was released from
custody while grievance was pending).
White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).
Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999). Cf. Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002)
(when prison officials do not respond to a prisoner’s initial grievance, administrative remedies are
See Woodford v. Ngo, 548 U.S. 81 (2006).
See Taylor v. Barrett, 105 F. Supp. 2d 483 (E.D. Va. 2000); see also Miller v. Tanner, 196 F.3d 1190
(11th Cir. 1999) (prisoner had exhausted when told by staff no appeal possible); Pearson v. Vaughn, 102
F. Supp. 2d 282 (E.D. Pa. 2000) (same).
See, e.g., Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) (prisoner who failed to sign and date
grievance form did not fail to exhaust administrative remedies; inmate did not fail to exhaust remedies
by failing to appeal institutional-level denial of his grievance after being told unequivocally that no such
you want to name in your eventual lawsuit. Do your best to follow the TDCJ grievance policy. (A
copy of the policy should be available in the law library.)
Once you get a response to the Step 2, or the time for TDCJ to respond to the Step 2 expires, you
can file a lawsuit.
What happens if you don’t exhaust the grievance process?
If you do not exhaust your grievances, the defendants can ask the court to dismiss your case.23
The defendants have to show the court evidence you did not file the proper grievances. You will have
an opportunity to show the court what you did to try and complete the grievance system. If the court
finds you did not properly file grievances, the case will most likely be dismissed without prejudice. 24
“Without prejudice” means you can try to file the lawsuit again after you complete the grievance system,
if it has not been too long since the event you are complaining about happened. 25
You can lose your claim if you miss a grievance deadline. 26 If this happened to you, appeal
through all the levels of the grievance system and explain in the grievance why you did not file on
time. 27
Finally, if the deadline for filing your case (the “statute of limitations”) comes while you are
going through the grievance system, you can still file your lawsuit. The statutes of limitations are
suspended while you go through the grievance process. 28 If this happens to you, file your lawsuit as
soon as you get a response to the Step 2 or the time for a response runs out.
appeal was possible); Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) (substantial compliance with grievance
procedure will satisfy exhaustion requirement); cf. Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000)
(holding that investigation of complaint by Secretary of Corrections rather than regular grievance system
satisfied exhaustion requirement); but see Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999)
(investigations by use of force committee and state police are not exhaustion).
Jones v. Bock, 549 U.S. 199 (2007).
Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Even though you may be able to re-file your
lawsuit if it is dismissed without prejudice, you may be barred from filing it again without paying the
filing fee. See id. This is another reason to make sure you complete the grievance process before filing
a lawsuit.
As discussed in footnote 1, you must file your lawsuit before certain deadlines. For most prisoners’
civil claims, you will need to file your lawsuit within two years of the event you are complaining about.
Woodford v. Ngo, 548 U.S. 81 (2006).
Harper v. Jenkins, 179 F.3d 1311 (11th Cir. 1999) (holding that prisoner who filed an untimely
grievance was obliged to seek a waiver of the time limits in the grievance system); see also Pozo v.
McCaughtry, 286 F.3d 1022 (7th Cir. 2002) (prisoner who missed deadline on one of the levels of
appeals of the grievance system barred from filing lawsuit).
Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999); Rodriguez v. Holmes, 963 F.2d 799 (5th Cir. 1992).
There are very few exceptions to the exhaustion requirement.
If you want money for your legal claims, you still must go through the grievance process. TDCJ
will not give you money by filing a grievance, but you are still required to go through the process before
you file a lawsuit. 29
Speaking to staff, putting in a kite or I-60, or writing to the warden are not the same as filing a
grievance. They do not count under the PLRA. You must use the grievance system.
Some courts may get involved to prevent serious injury while the you finish the grievance
process. 30 Even if you file the lawsuit to prevent a serious injury, you should still complete the
grievance process.
Filing fees (28 U.S.C. § 1915(b))
The second point to remember about the PLRA is prisoners must pay court filing fees in full.
In 2009, the filing fee is federal court was $350. If you do not have the money up front, you can pay the
filing fee over time through monthly withdrawals from your prison commissary account. Indigent
prisoners paying the filing fee in monthly withdrawals pay an initial fee of 20% of the greater of the
prisoner’s average balance or the average deposits to the account for the preceding six months. After the
initial payment, you pay monthly installments of 20% of money coming into the account in the previous
month until the fee has been paid in full.
Three strikes provision (28 U.S.C. § 1915(g))
The third point to remember about the PLRA is it can prevent you from filing more lawsuits.
If a court finds you have filed three “frivolous” lawsuits, you cannot file any more lawsuits without
paying the full filing fee up front. “Frivolous” means a problem is not serious, or the law does not
support your claim. Each lawsuit or appeal you file that is dismissed because it is frivolous, malicious,
or does not state a proper claim counts as a “strike.” After you get three “strikes,” you cannot file
another lawsuit without paying the full filing fee up front.
The “three strikes” rule is another reason it is important to only take serious issues to court. If
you have filed three “frivolous” lawsuits, and cannot pay a filing fee, you may not be able to file a
lawsuit when you have a serious problem.
Booth v. Churner, 121 S. Ct. 1819 (2001).
Evans v. Saar, 412 F. Supp. 2d 519, 527 (D.Md. 2006); Howard v. Ashcroft, 248 F. Supp. 2d 518,
533–34 (M.D. La. 2003); Ferguson v. Ashcroft, 248 F. Supp. 2d 547, 563–64 (M.D. La. 2003); Borgetti
v. Bureau of Prisons, 2003 WL 743936, at *2 n.2 (N.D. Ill. Feb. 14, 2003); Jackson v. District of
Columbia, 254 F.3d 262 (D.C. Cir. 2001). But see Ford v. Smith, 2007 WL 1192298 (E.D. Tex. 2007)
(dismissing prisoner’s complaint for failure to complete grievances even though prisoner “feels his
safety is in danger”).
If you appeal after your case is dismissed, and the appeal is also dismissed as frivolous, the
appeal counts as a separate strike. 31 Even old lawsuits from before the PLRA passed count as strikes. 32
The only exception to the “three strikes” rule is if you are in immediate danger of serious
physical injury. 33 A court looks at the “imminent danger” at the time you attempt to file the lawsuit, not
at the time of the incident that lead to the lawsuit. 34 In other words, if you are no longer in “imminent
danger” when you file the lawsuit or appeal, you will have to pay the full filing fee up front.
Physical injury requirement (42 U.S.C. § 1997e(e))
The fourth point to remember about the PLRA is that unless you have a physical injury, you
cannot file a lawsuit for mental pain.
The physical injury requirement only applies to claims for money damages. It does not apply to
claims to change how TDCJ operates. 35 Courts are split on whether a violation of constitutional rights is
always a claim for mental injury even there is no physical injury. 36 The courts disagree about what
when a prisoner has been harmed enough to count as a “physical injury.” 37
Patterson v. Jefferson Corrections Center, 136 F.3d 626 (5th Cir. 1998).
See e.g., Ibrahim v. District of Columbia, 208 F.3d 1032 (D.C. Cir. 2000); Welch v. Galie, 207 F.3d
130 (2d Cir. 2000).
See Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998) (plaintiff alleged an imminent danger of serious
physical injury where dust, lint and shower odor came from his cell vent, causing him to suffer “severe
headaches, changes in voice, mucus that is full of dust and lint, and watery eyes.”). See also Ashley v.
Dilworth, 147 F.3d 715 (8th Cir. 1998) (allegations that staff placed plaintiff in proximity to known
enemies satisfied imminent danger requirement).
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (en banc). See also Choyce v. Dominguez, 160
F.3d 1068 (5th Cir. 1998) (prisoner with three strikes must be in “imminent danger” to proceed in forma
pauperis on appeal).
See Harper v. Showers, 174 F.3d 716 (5th Cir. 1999); Perkins v. Kansas Dept. of Corrections, 165
F.3d 803 (10th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998).
See Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) (First Amendment claim not barred by physical
injury requirement); Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) (claim for violation of First
Amendment is not a claim for mental or emotional injury); cases going the other way include Thompson
v. Carter, 284 F.3d 411 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001); Allah v.
Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) (First Amendment claims involve mental or emotional injuries);
Davis v. District of Columbia, 158 F.3d 1342 (D.C. 1998) (claim for violation of privacy is claim for
mental or emotional injuries).
See Payne v. Parnell, 246 Fed. App’x 884 (5th Cir. 2007) (pain from being shocked with a cattle prod
can be a physical injury); Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999) (allegations of cuts and
abrasions satisfy physical injury requirement); Liner v. Goord, 196 F.3d 132 (2d Cir. 1999) (intrusive
body searches qualify as physical injury); compare with Herman v. Holiday, 238 F.3d 660 (5th Cir.
2001) (claim of “physical health problems” by prisoner exposed to asbestos does not specify a physical
There are two ways you can challenge poor prison medical care. First, as a prisoner, you have a
right to receive medical care from the prison system. This right is protected by the U.S. Constitution.
Second, “medical malpractice” law protects you from receiving poor quality medical care. Even
someone who has never been in prison can bring a medical malpractice claim if their doctor treats them
Both constitutional lawsuits and medical malpractice lawsuits are very hard to win. You should
know how difficult these claims are before investing time and effort.
Constitutional Claims
The Eighth Amendment requires prison officials to provide you with medical care. This
requirement includes mental health and dental care. 38 "Deliberate indifference to serious medical needs
of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth
Amendment." 39
To win a constitutional claim for poor medical care, you must show prison officials were
"deliberately indifferent" to your serious medical needs. First you need to show officials knew about
your condition. Second you need to show they ignored a substantial risk of serious harm to your
health. 40 A medical need is considered "serious" if it "causes pain, discomfort, or threat to good
health." 41 It is very hard to show prison medical staff is “deliberately indifferent” to your health if you
are receiving medical treatment. “[C]ourts have found that just because a prisoner does not agree that
the medical care offered is appropriate, this is not enough to suffice for a claim of deliberate indifference
to serious medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citing Young v. Gray,
560 F.2d 201, 201 (5th Cir. 1977). It is not enough that the diagnosis is incorrect. Domino v. Tex. Dep't
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). The prisoner must instead establish that officials
"refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton disregard for any serious medical needs." Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Indeed, courts have found that evidence of medical exams,
injury which would permit recovery for emotional or mental damages due to fear caused by increased
risk of developing asbestos-related disease); Harper v. Showers, 174 F.3d 716 (5th Cir. 1999)
(confinement in filthy cell where exposed to mentally ill patients not physical injury); Sigler v.
Hightower, 112 F.3d 191 (5th Cir. 1997) (bruised ear does not qualify as physical injury).
Estelle v. Gamble, 429 U.S. 97, 103 (1976).
Estelle v. Gamble, 429 U.S. at 104.
Farmer v. Brennan, 511 U.S. 825 (1994).
Dean v. Coughlin, 623 F.Supp. 392, 404 (S.D.N.Y. 1985).
sick calls, and diagnoses have been used to rebut a claim of deliberate indifference. See, e.g., Sexton v.
Young, No. 07-0088, 2007 U.S. Dist. LEXIS 25147, at *3-4 (W.D. La. Mar. 12, 2007).” 42
Under this standard, your rights have not been violated if the treatment you are getting does not
work. Your rights have not been violated if you disagree with the treatment your doctor gives you.
Even if a free world doctor gave you different treatment than a prison doctor, that may not be enough to
prove your constitutional rights have been violated.
Evidence of “deliberate indifference” includes sick call requests for medical attention that were
not answered, records showing date(s) you requested medical attention, to whom the request(s) were
submitted, the medical conditions complained of, the effects of any delay in obtaining access to medical
staff, the date(s) access was provided, specific medical staff seen, treatment provided by particular staff,
the follow-up care ordered and whether it was carried out, additional information to indicate the
adequacy of treatment, and complaints and formal grievances filed regarding inadequate care. You
should try to get copies of medical records to show the court.
You can show prison officials' knowledge of risks to your health from "the very fact that the risk
was obvious." 43 If a prison official could see your health is getting worse this can show they knew about
your condition. You should tell the court if you have significant weight loss, seizures, asthma attacks, or
other problems that are obvious. A prison official cannot "escape liability if the evidence showed that
he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist." 44
Though it is not required, you will almost always need an expert witness to testify for you in a
case like this. An “expert witness” is a doctor who can testify about the care you received. The law
does not require you have an expert, but you will probably need one to convince the court you were
denied care. This expert can be the doctor who is treating you, or it can be an independent doctor who
agrees to help you. Independent doctors are hard for a prisoner to find and will almost always be
Medical Malpractice
You can also sue medical staff for providing you incorrect care. If you have been treated by
medical staff in prison, but you are being treated incorrectly, you can sue the doctor for medical
“Medical malpractice” is not a claim based on the constitution. It comes from medical staff’s
duty to provide treatment from a set standard of care. If medical staff provide you care below the
standard of care, you may be able to sue them for malpractice. Malpractice may be a better option for
you if you have received medical treatment, but that treatment did not work or was incorrect.
Kennedy v. Potter, 2009 U.S. App. LEXIS 21217 (5th Cir. 2009).
Farmer, 511 U.S. at 842. See also Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1979) (guards liable to
failing to get medical treatment for prisoner who was suffering from seizures); McCoy v. Texas
Department of Criminal Justice, 2006 U.S. Dist. LEXIS 58861 (S.D. Tex. 2006).
Farmer, 511 U.S. at 843 n.8.
In Texas, it is very hard to win a medical malpractice lawsuit. There are several special rules
you have to follow to bring a successful medical malpractice case. 45 You will almost certainly need an
expert witness. 46 An “expert witness” is another doctor who can testify about the care you got. You
will have to give the medical staff you are suing a copy of a report from the expert no later than 120
days after you file your lawsuit. 47 Also, if you do not also bring federal constitutional claims, you will
have to file your medical malpractice case in state court. It is very important to try to talk to a lawyer
before these cases.
Requesting Medical Care from TDCJ
Because it is very hard to win a lawsuit requesting medical care, it may be best for you to ask for
help through TDCJ’s policies. If you need to be seen by a doctor or nurse, you can request treatment by
following the steps below.
Place a sick call—complete a sick call form, clearly describing what your medical problem is.
You do not need to use legal jargon like “deliberate indifference”—just tell the medical staff
what your problem is and why you want to be seen. Sick call forms are available on your
housing unit.
TDCJ policy requires all sick calls be answered within 48 hours. If you have not received an
answer within 48 hours, proceed to the next step. See Correctional Managed Care Policy 38.1.
Make an I-60 request—If you are not seen after placing a sick call, complete an I-60
requesting medical care. An I-60 is a request to prison officials, and the form is available on
your housing unit. Clearly describe the problem, and state you have already completed a sick
call. Tell the person who will read the I-60 that you want to be seen by medical staff. Again,
there is no need to use legal jargon.
Contact TDCJ Health Services directly—The Health Services Division’s Office of
Professional Standards investigates prisoners’ complaints about health care. Their address is:
Texas Department of Criminal Justice
Health Services Division
3009-A HWY 30 West
Huntsville, Texas 77340-0769
If you have a friend or family member in the free world, they can call Health Services directly
at (936) 437-4271. Health Services may require you to sign a medical release before they can
talk with your friends or family. This is to protect your medical privacy. You can get the
release form from the medical department on your unit. (The form needs to be renewed and
updated every six months.)
See Texas Civil Practices and Remedies Code, Chapter 74.
Texas Civil Practices and Remedies Code, § 74.351.
A friend or family member can also contact the TDCJ Ombudsman at (936) 437-6791. The
Ombudsman will also likely require your family to have a medical release to protect your
Make sure to document each of the above steps by saving copies of the forms or writing in a diary when
you made the requests. If you need to file a lawsuit, this will all be evidence of “deliberate
If you can afford to be seen by a free world doctor, you have a right to have one evaluate you. 48 You
will have to pay all the costs associated with this visit, however, and will have to find a doctor willing to
come to the prison to visit you.
Special laws protect disabled people. Two federal laws protect disabled people’s rights: the
Rehabilitation Act 49 and the Americans with Disabilities Act (ADA). 50 If a program gets money from
the federal government, the Rehabilitation Act applies. 51 The ADA applies to all government
programs. 52 Texas state law also protects disabled prisoners. 53
The ADA and Rehabilitation Act are the same in most ways. 54 The major difference between
the two laws is how they waive the state’s immunity from lawsuits, which is discussed below. You can
use cases about the Rehabilitation Act in lawsuits brought under the ADA, and vice versa.
Definition of a Disability
The ADA and Rehabilitation Act define “disability” as:
(A) a physical or mental impairment that substantially limits one or more of the major life
activities …;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment. 55
Correctional Managed Health Care Policy E-44.2.
29 U.S.C. § 794(a).
42 U.S.C. § 12101 et seq.
Supra, note 55. TDCJ gets federal money.
42 U.S.C. § 12131.
See Texas Human Resources Code, Chapter 121.
Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 455 (5th Cir. 2005).
42 U.S.C. § 12102(2).
A “physical or mental impairment” can include: hearing loss, vision problems, mental illness,
physical disabilities, certain diseases, and many other conditions. “Major life activities” include seeing,
hearing, breathing, working, walking and many other everyday activities.
Courts usually look at the facts of each lawsuit to decide if a person is legally disabled. 56 Be sure
to tell the court exactly what your condition is, and what things it prevents you from doing.
Enforcing Disabled Prisoners’ Legal Rights
Title II of the ADA says that:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity. 57
To bring a lawsuit under the ADA and/or the Rehabilitation Act, you must show three things.
First, you must be legally disabled. Second, you must qualify to participate in the program you want to
enter. And third, you cannot participate in the program because of your disability. 58 Under the
Rehabilitation Act, you must also show TDCJ receives federal funding. 59
You will have to show the court you tried to participate in the program. Then you will have to
show you were eligible for the program. 60 You will also have to show you could not get in the program
because of your disability. 61
What Rights Can Be Enforced?
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999) (impaired vision in one eye is not always a
disability under the ADA; rather, courts must usually determine on a case-by-case basis whether the
plaintiff’s major life activity is substantially limited).
42 U.S.C. § 12132.
42 U.S.C. § 12132; 29 U.S.C. § 794(a).
29 U.S.C. § 794(a). You can do this by sending a Request for Admission to TDCJ asking TDCJ to
admit it accepts federal funding.
Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979) (“An otherwise qualified person
is one who is able to meet all of a program's requirements in spite of his handicap”).
See, e.g., Lue v. Moore, 43 F.3d 1203, 1205, 1206 (8th Cir. 1994) (blind inmate denied access to
vocational training programs may bring claim for damages and affirmative relief under Rehabilitation
Act, but denying relief because inmate failed to prove he had applied to programs or requested
Disabled prisoners have sued to get equal access to facilities, programs and services. Prisoners
in wheelchairs have sued to use prison showers and toilets. 62 Deaf prisoners have sued to get sign
language interpreters for prison programs. 63
Disabled prisoners have challenged being put in isolation and segregation units. 64 One court
ruled prison officials discriminated against a prisoner in a wheelchair who could not access the dining
hall, recreation area, visitation church, and the library. 65
Prisoners with mental illnesses who are not receiving treatment for their mental illness are also
protected by the ADA and Rehabilitation Act. 66
Sovereign Immunity
“Sovereign immunity” is the State’s right not to be sued. The government can give up sovereign
immunity by passing a law. The ADA and Rehabilitation Act give up the state’s immunity under certain
Unlike Section 1983, the ADA and Rehabilitation Act allow you to sue TDCJ directly. When
you bring an ADA or Rehabilitation Act lawsuit, you do not need to sue the individual official. Your
lawsuit can name TDCJ.67
United States v. Georgia, 546 U.S. 151 (2006); Kaufman v. Carter, 952 F. Supp. 520, 523-24 (W.D.
Mich. 1996) (denying defendants' summary judgment motion in suit challenging failure to provide
access to bathrooms and showers).
Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) (reversing grant of summary judgment for defendants
on deaf inmate's Rehabilitation Act claims that prison officials' failure to provide skilled interpreters
foreclosed participation in programs for which he was otherwise qualified); Duffy v. Riveland, 98 F.3d
447 (9th Cir. 1996) (same, for combination of Rehabilitation Act and ADA claims); Clarkson v.
Coughlin, 898 F. Supp. 1019, 1027-32 (S.D.N.Y. 1995) (granting summary judgment to deaf plaintiffs
claiming that prison officials violated ADA and Rehabilitation Act by failing to provide
accommodations for participation in classification hearings, HIV-AIDS counseling, educational and
vocational programs).
Carty v. Farrelly, 957 F. Supp. 727, 741 (D.V.I. 1997) (prison officials violated ADA by housing
inmate not suffering from mental illness with mentally ill prisoners because his cane was considered
security threat).
Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996).
See, e.g., Gordon v. Texas Department of Criminal Justice, No. 4:06-cv-02790, slip op. at 6 (S.D.
Tex. Sept. 30, 2009) (prison system may be liable for “failing to afford [a prisoner] the same level of
care that is given to prisoners who are not similarly disabled”).
Remember, if you also have constitutional claims, you will need to name those individual officials.
Congress passed the ADA, and Congress can only waive a state’s sovereign immunity in limited
situations. One situation where Congress can waive a state’s immunity is to prevent the state from
violating the constitution. Thus, whether the ADA waives sovereign immunity in your case will depend
on to what degree your constitutional rights are also violated. 68
The ADA may also waive TDCJ’s sovereign immunity when the ADA would “remedy and deter
violations of rights guaranteed … by prohibiting a somewhat broader swath of conduct, including that
which is not itself forbidden by [the Constitution’s] text.” 69 It is not clearly established how far beyond
the limits of the Constitution extend in this manner in prison.
The difference between the ADA and Rehabilitation Act is that States consent to be sued when
they accept federal money from Congress under the Rehabilitation Act. If you bring your lawsuit under
the Rehabilitation Act, you will not need to worry about sovereign immunity if you can prove TDCJ
accepts federal money.
Prisons must protect prisoners from other inmates. Prison officials, however, are not responsible
every time a prisoner is injured by a fellow inmate.
Prison guards cannot use excessive force against prisoners. But a prison official’s use of force
usually does not violate the Constitution.
Protection from Prisoner Assault
Prison officials violate the constitution when they are “deliberately indifference” to a prisoner’s
safety. You will need to show two things. You will need to show prison officials knew you were at
substantial risk of serious harm. You will also need to show the prison officials ignored that risk. 71
Even if you are harmed after you tell prison officials about a risk, your rights are not violated if
they responded reasonably to the risk. 72 There are two ways to try to show your rights have been
violated if you have been assaulted. One is showing prison officials’ did not act reasonably after
learning about a specific threat. 73 The other is when prison conditions create a dangerous situation for
prisoners in general. 74 Sometimes both ways may work at the same time.
United States v. Georgia, 546 U.S. 151 (2006).
Tennessee v. Lane, 541 U.S. 509 (2004).
See Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970, 1978-79 (1994).
See id. at 847, 114 S. Ct. at 1984. See, e.g., Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990).
Farmer, 511 U.S. at 844-45, 114 S. Ct. at 1982-83.
See, e.g., Longoria v. Texas, 473 F.3d 586 (5th Cir. 2006) (prisoner threatened after telling prison
authorities about gang activities); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992) (putting sex
offender in unsupervised holding cell).
See, e.g., Hutto v. Finney, 437 U.S. 678, 682 n. 3 (1978) (prison rape was so common prisoners would
refuse to sleep and “spend the night clinging to the bars nearest the guards’ station”).
You must also show a connection between what prison officials did or failed to do and the harm
that occurred. 75 Thus, courts have imposed liability on guards who observed an assault or knew of a risk
to a prisoner, but did nothing; 76 or on supervisors who made or failed to make polices, or failed to act on
risks they knew about. 77 Courts will require you to show how each defendant is personally responsible
for causing the assault.
Use of Force by Prison Staff
Prison staff violate the Eighth Amendment when they use force “for the very purpose of causing
harm.” They can use force “in a good faith effort to maintain or restore discipline.” 78 An inmate must
show the force used was not required to manage the prison, or was completely out of proportion to that
need. 79 Whether a court will find force excessive depends heavily on the facts of the case. Generally,
the force used by prison staff must be more than “de minimis” (very small or insignificant) to violate the
Eighth Amendment. 80 Courts disagree on how much force is de minimis. 81
In some cases, prison staff can use serious and even deadly force. 82 You do not need to show a
serious or permanent injury, however, to show your rights were violated. The seriousness of the injury
is just one factor to consider. 83
The Constitution protects your right to have religious beliefs. But it only protects “sincerely
held” beliefs. Courts often disagree about what qualifies as a religion.
Christianity, Islam, and Judaism, are always understood to be religions. Less well-known faiths
have less success in the courts. Rastafarian, Native American religions, and various Eastern religions
are sometimes protected. Other religions have even less success. While the Supreme Court has never
defined the term “religion,” lower courts have asked whether a belief system addresses “fundamental
See Longoria v. Texas, 473 F.3d 586 (5th Cir. 2006)
See, e.g., Cantu v. Jones, 293 F.3d 839 (5th Cir. 2002); Hale v. Townley, 45 F.3d 914 (5th Cir. 1995);
Ayala Serrano v. Lebron Gonzales, 909 F.2d 8, 14 (1st Cir. 1990); Edwards v. Mendoza, 2008 U.S. Dist.
LEXIS 101231 (S.D. Tex. 2008).
See, e.g. Thompkins v. Belt, 828 F.2d 298 (5th Cir. 1987).
Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 999 (1992), quoting Whitley v. Albers, 475 U.S.
312, 320-21, 106 S. Ct. 1078, 1085 (1986).
See Hudson, 503 U.S. at 5-6, 112 S. Ct. at 998-99 (convicted prisoners).
See Hudson, 503 U.S. at 9-10, 112 S. Ct. at 1000.
Compare Hudson, 503 U.S. at 10, 109 S. Ct. at 997, 1000 (kicks and punches resulting in bruises,
swelling, loosened teeth, and a cracked dental plate not de minimis) and Riley v. Dorton, 115 F.3d 1159,
1168 (4th Cir. 1997) (sticking pen a quarter of an inch into a detainee’s nose, threatening to rip it open
and using medium force to slap his face is de minimis). See also Payne v. Parnell, 246 Fed. App’x 884
(5th Cir. 2007).
See, e.g., Whitley v. Albers, 475 U.S. 312, 322-26, 106 S. Ct. 1078, 1085 (1986) (use of shotgun in
riot/hostage situation).
See Hudson, 503 U.S. at 7-9, 112 S. Ct. at 999-1000. See also ` Payne v. Parnell, 246 Fed. App’x 884
(5th Cir. 2007)
and ultimate questions,” is “comprehensive in nature,” and presents “certain formal and external
signs.” 84
You must also convince a court your belief is sincerely held. Courts will look to how long you
have believed something and how consistently you follow your beliefs. 85 Just because you haven’t
believed something your whole life doesn’t automatically mean that a court will find you are insincere. 86
But if you have recently converted you will probably have a harder time convincing a court that you are
You have an absolute right to believe anything you want. You do not, however, always have a
constitutional right to do things just because of your religious beliefs. The Constitution does not excuse
anyone from complying with a “neutral” rule (one not intended to restrict religion) of “general
applicability” (one that applies to everyone in the same way). 87 Just because a rule only applies to
prisoners does not mean it is not generally applicable. But a rule that applies only to a religious group,
is not generally applicable. 88
Prison officials may restrict inmates’ religious practices if the restrictions are important to
managing the prison. 89 Courts defer to prisons under this standard. You may have success if you can
show some religions are treated more favorably than others. 90
Congress passed The Religious Land Use and Institutionalized Persons Act in 2000 (RLUIPA). 91
RLUIPA says prison rules cannot substantially burden your religion unless there is a compelling reason
for the rule. The rule must also be the least restrictive means of achieving its purpose. 92 RLUIPA is to
be read broadly to protect religious exercise. 93 Some prisoners have had success in requiring TDCJ to
change policies under RLUIPA. 94
Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981); see also Dettmer v.
Landon, 799 F.2d 929, 931-32 (4th Cir. 1986).
See Sourbeer v. Robinson, 791 F.2d 1094, 1102 (3d Cir. 1986); Vaughn v. Garrison, 534 F. Supp. 90,
92 (E.D.N.C. 1981).
See Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988); Weir v. Nix, 890 F. Supp. 769, 775-76 (S. D.
Iowa 1995).
See Employment Division v. Smith, 494 U.S. 872 (1990).
See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). But see Mayweathers v. Newland, 258 F.3d 930,
938 (9th Cir. 2001) (upholding injunction forbidding prison administrators from disciplining Muslim
inmates for missing work to attend hour-long Friday Sabbath services).
See Freeman v. Arpaio, 125 F.3d 732, 734, 738-39 (9th Cir. 1997); Sossamon v. Lone Star State of
Texas, 560 F.3d 316 (5th Cir. 2009).
42 U.S.C.S. § 2000cc et seq.
42 U.S.C.S. § 2000cc-1(a).
42 U.S.C.S. § 2000cc-3(g).
Texas state law also protects your right to practice your religion. The Texas Religious Freedom
Restoration Act has the same protections as RLUIPA. 95
What rights do prisoners have to be free of excessive heat?
Excessive heat (or cold) may violate the Constitution. 96 You will have to show
three things. First, prison officials must be aware of the heat. Second, the heat must be a
substantial risk to your health.97 Third, the prison must not do anything to fix the
When have courts found excessive heat violates the Eighth Amendment?
When the heat index is over 90 degrees for long periods prison conditions may
violate the Constitution.98 But a complaint that the temperature was “well above” or
“well below” room temperature is not a constitutional violation.99
Cases dealing with excessively cold conditions may help make an argument about
excessive heat.100 “Prisoners have a right to protection from extreme cold.” 101 A prison
See, Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009) (policy banning prisoners
from access to chapel); Mayfield v. Texas Department of Criminal Justice, 529 F.3d 599 (5th Cir. 2008)
(access to Odinist runestones); Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (Native American
allowed to grow long hair); Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007) (kosher diet).
See Texas Civil Practice and Remedies Code, Chapter 110.
See Gates v.Cook, 376 F.3d 323, 339 (5th Cir. 2004) (heat index above 90 degrees may be a violation
of the Eighth Amendment). Note that it is best to frame your argument in terms of “excessive heat”
rather than a lack of air conditioning.
Farmer v. Brennan, 511 U.S. 825 (1994). The prisoners in Gates had a doctor testify when the heat
index consistently went over 90 degrees it was “very likely” “an inmate will die of heat stroke or some
other heat-related illness.” 376 F.3d at 339.
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004); Valigura v. Mendoza, 265 Fed. App’x 232, 235 (5th Cir.
2008) (“temperatures into the nineties and hundreds” when combined with other conditions can state an
Eighth Amendment violation).
Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996).
See Boulds v. Miles, 221 Fed. App’x 322 (5th Cir. 2007) (“allowing a prisoner to be exposed to
extreme temperatures may violate the Eighth Amendment”); Beck v. Lynaugh, 842 F.2d 759, 761 (5th
Cir. 1988) (finding prisoners stated an Eighth Amendment claim when they alleged missing window
that did not provide blankets despite low temperatures would violate the Eighth
Amendment. 102
What rights do prisoners have?
Exposing prisoners to dangerous conditions or poisons may violate the Constitution. Prison
officials violate the Constitution when they knowingly expose a prisoner to a condition that poses an
unreasonable risk of serious damage to that prisoner’s health. 103 Prison officials must know of and
disregard a substantial risk of serious harm to the prisoner’s health. 104 This violates the Eighth
Amendment because it amounts to “unnecessary and wanton infliction of pain contrary to contemporary
standards of decency.” 105
What types of conditions violate the Eighth Amendment?
Allegations of polluted water 106 and exposure to toxic fumes 107 have both been held to state an
Eighth Amendment claim. Prison officials cannot expose prisoners to sewage or human waste for
panes exposed them to winter weather); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (finding a
prisoner stated an Eighth Amendment claim when he alleged that because large window panes were left
empty he was subjected to below freezing temperatures during the winter); Foulds v. Corley, 833 F.2d
52, 54 (5th Cir. 1987) (finding a prisoner stated an Eighth Amendment claim when he alleged he was
forced to sleep on the floor of an extremely cold cell while rats crawled over him).
Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997).
Wilson v. Seiter, 501 U.S. 294 (1991).
Helling v. McKinney, 113 S. Ct. 2475, 2481 (1993). See also Volk v. Gonzalez, 1997 U.S. Dist.
LEXIS 22197 (W. Dist. Tex. 1997) (“[D]irecting a prisoner to catch live rattlesnakes with his bare hands
is not only a monumentally dangerous act but also such a clear violation of the Eighth Amendment’s
prohibition on cruel and unusual punishment that, absent extraordinary circumstances … no one could
rationally conceive of such an action as ‘objectively reasonable.’”).
Farmer v. Brennan, 511 U.S. 825 (1994).
Helling, 113 S. Ct. at 2480.
Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (finding an allegation that drinking water was
polluted was not a frivolous claim); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
Johnson-El v. Schoemehl, 878 F.2d 1043, 1054-55 (8th Cir. 1989) (holding a prisoner had an Eighth
Amendment claim when he alleged that pesticides were sprayed into housing units so that prisoners had
to breathe the fumes); Cody v. Hillard, 599 F. Supp. 1025, 1032 (D.S.D. 1984) (finding inadequate
ventilation of toxic fumes in inmate workplaces was unconstitutional), aff’d in part and rev’d in part on
other grounds, 830 F.2d 912 (8th Cir. 1987) (en banc); Murphy v. Wheaton, 381 F. Supp. 1252, 1261
(N.D. Ill. 1974) (finding an Eighth Amendment claim where inmates were exposed to noxious smoke
fumes created by other inmates burning blankets); but see Givens v. Jones, 900 F.2d 1229, 1234 (8th
significant periods of time. 108 Exposure to materials that cause cancer has also been held to violate the
Eighth Amendment. 109 Exposure to second-hand tobacco smoke may violate the Eighth Amendment
as well. 110
Courts have held that exposure to asbestos can constitute deliberate indifference to prisoners’
medical needs. 111 However, at least one court has held that exposure to “moderate levels of asbestos”
did not violate the Eighth Amendment. 112
What types of conditions have not been held to violate the Eighth Amendment?
Some courts have suggested dangerous conditions do not violate the Constitution if workers in
the surrounding community work in the same conditions. For example, requiring a prisoner to work in
heavy corn dust without a mask, causing nosebleeds, hair loss, and sores on his face, did not violate the
Eighth Amendment unless “the practice clearly differed from that of the surrounding agricultural
community or violated a clearly established law.” 113 Similarly, exposure to a pesticide did not violate
the Eighth Amendment when the exposure was not any different from practices in the surrounding
agricultural community. 114
Cir. 1990) (holding no Eighth Amendment violation where inmate suffered migraine headaches as a
result of noise and fumes during three week long housing unit renovation).
Gates v. Cook, 376 F.3d 323, 341 (5th Cir. 2004) (“exposure to waste may constitute cruel and
unusual punishment”); Wheeler v. Walker, 303 Fed. App’x 365 (7th Cir. 2008) (exposure to human
waste for two weeks can violate the Eighth Amendment); Burton v. Armontrout, 975 F.2d 543, 545 n. 2
(8th Cir. 1992) (ordering prison officials to provide inmates with protective clothing when cleaning
sewage); Fruit v. Norris, 905 F.2d 1147, 1150-51 (8th Cir. 1990) (finding an Eighth Amendment
violation where prisoners were ordered to clean raw sewage facility in 125 degree temperatures without
the protective clothing or equipment called for by the operations manual); Despain v. Uphoff, 264 F.3d
965, 977 (10th Cir. 2001) (exposure to flooding and human waste violates Eighth Amendment).
Clark v. Taylor, 710 F.2d 4, 9-11 (1st Cir. 1983). But see Burleson v. Texas Department of Criminal
Justice, 393 F.3d 577 (5th Cir. 2004) (prisoner’s Eighth Amendment rights were not violated because he
could not demonstrate cancer-causing agents he was exposed to actually caused his cancer).
Helling v. McKinney, 113 S.Ct. 2475, 2480 (1993) (finding inmate stated an Eighth Amendment
claim where his cellmate smoked 5 packs of cigarettes a day).
Herman v. Holiday, 238 F.3d 660 (5th Cir. 2001) (exposure to enough asbestos to cause an
unreasonable risk of serious harm violates the Eighth Amendment); Powell v. Lennon, 914 F.2d 1459,
1463 (11th Cir. 1990).
McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1994).
Jackson v. Cain, 864 F.2d 1235, 1245 (5th Cir. 1989).
Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982).
Are prisons required to comply with free-world environmental regulations?
The Constitution does not require prisons to comply with all civilian environmental
regulations. 115 However, these regulations may be enforced by various government agencies, and a
prisoner may be able to use these regulations to argue that they are evidence of contemporary standards
of decency.
If you have a case involving dangerous conditions or toxic substances, it may be helpful to
complain to state or local health departments, the federal Occupational Safety and Health Administration
(OSHA), or other relevant agencies. State or local regulations may be enforceable in state courts.
Prisoners may challenge disciplinary sanctions imposed on them under the Due Process Clause
of the Fourteenth Amendment. 116 The Fourteenth Amendment of the United States Constitution protects
against deprivation of life, liberty, or property by the state "without due process of law." 117 Procedural
due process is examined in two steps: (1) first you look at whether an existing liberty or property
interest has been interfered with; and then (2) whether the procedures that interfered with your liberty or
property interest were constitutionally sufficient. 118
Do you have a liberty or property interest sufficient to require due process?
Under Sandin v. Conner, 119 prisoners do not have a protected liberty interest in their conditions
of confinement unless the conditions place an "atypical and significant hardship" on the prisoner. After
Sandin, prisoners must present factual evidence that the restraint at issue creates an "atypical and
significant hardship" and that a state regulation or statute grants prisoners a protected liberty interest in
Franklin v. Kansas Department of Corrections, 160 Fed. App’x 730, 736 (10th Cir. 2005) (“The
Eighth Amendment generally does not constitutionally embrace workplace safety regulations”); French
v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985) (finding a prison does not need to comply with OSHA or
state regulations).
Prisoners may choose to base their challenges on state law grounds, citing state prison regulations or
statutes. State prisoners seeking to invalidate an unlawful criminal conviction or sentence must generally
first exhaust their state court remedies, then seek federal court relief through a writ of habeas corpus.
Only if the conviction or sentence is overturned may the prisoner-plaintiff then pursue a damages action
for an unlawful conviction or sentence under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477,
486, 114 S.Ct. 2364, 2372 (1994).
Parratt v. Taylor, 451 U.S. 527, 537 (1981).
Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 462 (1989).
515 U.S. 472 (1995).
remaining free from that restraint. 120 In order to meet the Sandin "atypical and significant hardship"
standard, prisoners must present evidence of the actual conditions of the challenged punishment as
compared to ordinary prison conditions. 121
In Edwards v. Balisok, 122 the Supreme Court made it even harder to successfully challenge
prison disciplinary convictions. The Court held that prisoners cannot sue for monetary damages under
42 U.S.C. § 1983 for loss of good time until they get their disciplinary conviction set aside through the
prison appeal system or in state court by filing a writ of habeas corpus. 123
Texas prisoners have a protected liberty interest in their earned good time credits. 124
If you want to challenge a disciplinary conviction in federal court, you must use a writ of habeas
corpus through 28 U.S.C. § 2254. Texas courts do not hear cases challenging prison disciplinary cases.
To maintain an action under § 2254, you must first exhaust state habeas remedies. 125 In this situation
only, prisoners’ state remedies are exhausted when the prisoner goes through TDCJ's grievance
procedures. 126 The deadline for filing a writ to challenge a prison disciplinary case is one year from
the disciplinary conviction.
See, e.g., Franklin v. District of Columbia, 163 F.3d 625 (D.C.Cir. 1999); Miller v. Selsky, 111 F.3d 7
(2d Cir. 1997); Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997); Sweeney v. Parke, 113 F.3d 716 (7th Cir.
1997); Beverati v. Smith, 120 F.3d 500 (4th Cir. 1997); Driscoll v. Youngman, 105 F.3d 393 (8th Cir.
1997); Madison v. Parker, 104 F.3d 765 (5th Cir. 1997); Williams v. Fountain, 77 F.3d 372 (11th Cir.
1996); McGuinness v. DuBois, 75 F.3d 794 (1st Cir. 1996); Mitchell v. Dupnik, 75 F.3d 517 (9th Cir.
Ayers v. Ryan, 152 F.3d 77 (2d Cir. 1998); Kennedy v. Blankenship, 100 F.3d 640, 642-43 (8th Cir.
1996); Williams v. Fountain, 77 F.3d at 374 n.3.
520 U.S. 641 (1997).
A “writ of habeas corpus” allows courts to review a criminal conviction or prison disciplinary
sanction. See the State Counsel for Offenders Legal Manual for information about filing a writ of
habeas corpus.
Teague v. Quarterman, 482 F.3d 769 (5th Cir. 2007).
See Serio v. Members of the Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) ("If
a prisoner challenges a single hearing as constitutionally defective, he must first exhaust state habeas
See Gartrell v. Gaylor, 981 F.2d 254, 258 n.3 (5th Cir. 1993) (when challenging a prison disciplinary
hearing in habeas corpus, "we have required prisoners to exhaust the TDCJ grievance procedures");
Spaulding v. Collins, 867 F. Supp. 499, 502 (S.D. Tex. 1993) ("Because this case involves a prison
disciplinary action, it is not reviewable by state courts and is properly brought by federal habeas corpus
petition to this court" after exhaustion of the TDCJ grievance procedure); see also Baxter v. Estelle, 614
F.2d 1030, 1031-32 (5th Cir. 1980); Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir.1978).
Under the current state of the law, prisoners do not have liberty interests in a reduction in class
status, or a direction that a prisoner remain at the same line class for a set period of time; 127 custodial
classification because it will not "inevitably affect the duration of his sentence;" 128 placement in
administrative segregation; 129 loss of commissary privileges; 130 loss of recreation privileges; 131
temporary cell restrictions; 132 job assignments; 133 or prison unit assignments. 134
Furthermore, there is no constitutional right to parole in Texas, because whether a prisoner will
be released on parole is entirely at the discretion of the Board of Pardons and Parole. 135
Did you get due process?
The opportunity to be heard is the fundamental requirement of due process and must be granted
at a meaningful time and in a meaningful manner. 136 To satisfy due process requirements, prison
disciplinary action must meet these minimum procedures: (1) the prisoner must be given advance
Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996).
Luken, 71 F.3d at 193.
Broussard v. Johnson, 918 F.Supp. 1040, 1044, n.1 (E.D. Tex. 1996) citing Sandin v. Conner, 115
S.Ct. 2293, 2302 (1995).
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); see also Meachum v. Fano, 427 U.S. 215, 224
(1976) (holding that the Due Process Clause does not protect every change in the conditions of
confinement having a substantially adverse impact on a prisoner).
Smith v. Cockrell, 2002 U.S. Dist. LEXIS 5309 (N.D. Tex. March 28, 2002).
Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995).
See Meachum v. Fano, 427 U.S. 215, 224 (1976) ("The Constitution does not require that the State
have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be
placed in any particular prison if, as is likely, the State has more than one correctional institution.");
Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995) (finding that a Texas prisoner failed to demonstrate
that state law created a liberty interest created a liberty interest requiring his transfer from county jail to
TDCJ); David v. Carlson, 837 F.3d 1318,1319 (5th Cir. 1988) (holding that a court may not order the
transfer of an inmate where there is no clear duty on the part of the prison to transfer said inmate). The
only exception to this rule is assignment to a “Supermax” prison, as described in Wilkinson v. Austin,
545 U.S. 209 (2005), where conditions were considerably more restrictive than at other prison units.
Before prisoners can be placed in a “Supermax”-type unit, they are entitled to some procedural due
Madison, 104 F.3d at 768; Malchi, 211 F.3d at 957.
Parratt. 451 U.S. at 540.
written notice of the charges against him; (2) evidence against the prisoner must be disclosed to him; (3)
the factfinders must give a written statement of the evidence relied on and the reasons for the
disciplinary action; (4) the prisoner should be afforded the opportunity to be heard in person and to
present witnesses and documentary evidence in his own defense as long as doing so will not jeopardize
institutional safety or correctional goals; 137 and (5) the prisoner should be given the right to confront and
cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not
allowing confrontation. 138
Because "federal courts cannot retry every prison disciplinary dispute," the courts may act only
where "arbitrary or capricious action is shown." 139 This means that prison disciplinary proceedings will
be overturned only where there is no evidence whatsoever to support the decision of the prison
officials. 140 Sufficient support for a finding of guilty is provided by "some facts" or "any evidence at
all." 141 A disciplinary hearing officer's decision will satisfy the due process requirements if there is
"some evidence" in the record to support the decision. 142
The right to attend a disciplinary hearing is an essential due process protection, but it is not absolute
or guaranteed. See Moody v. Miller, 864 F.2d 1178, 1181 (5th Cir. 1989) (if a prisoner, through no fault
of prison officials, is unable to attend a disciplinary hearing, due process requires nothing more than that
the hearing be held in accordance with all of the other requirements of due process that are called for
under the circumstances).
Wolff v. McDonnell, 418 U.S. 539, 559 (1979); Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert. denied, 455 U.S. 992 (1982).
Smith, 659 F.2d at 545; Reeves v. Pettcox, 19 F.3d 1060 (5th Cir. 1994).
Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986); Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir.
2001) (officer's report standing alone provides some evidence of guilt).
Superintendent v. Hill, 472 U.S. 445, 455 (1985).