Professor Ricks
Rutgers Law School
Class One 13 November
Effective Techniques for Persuasive Legal Writing
The 8th Amendment to the United States Constitution prohibits the government from
inflicting “cruel and unusual punishment” on prisoners

A prison guard can violate the 8th Amendment by failing to protect a prisoner
from an attack by another prisoner.

The Supreme Court test for an 8th Amendment violation for failure to protect
The prisoner must show the prison guard acted with “subjective deliberate indifference”
to the prisoner’s safety. The prisoner must show:
1. the prison guard was aware of facts suggesting that the prisoner faced a risk of
serious harm,
2. the prison guard realized that the prisoner faced a serious risk of harm, and
3. the prison guard disregarded the risk of harm to the prisoner by failing to take
reasonable steps to avoid injury to the prisoner.
Summarize the argument before providing detail
Can you tell which side the writer represents - the prisoner or the guard? Why?
Example A
Guard Doherty was aware of facts that a substantial risk of serious harm existed because
the risk was obvious. Prisoner Peterson and the prisoner who attacked Mr. Peterson both
had prison gang tattoos. Further, Mr. Peterson reported the risk to Guard Doherty. Mr.
Peterson specifically reported that the prison gang Latin Kings had threatened him.
A prison guard is subjectively aware of a fact only when the guard is put on notice of a
specific threat to an inmate’s safety. Here, the concerns prisoner Peterson voiced to
Guard Doherty were not sufficient to alert Doherty to a specific threat. Peterson left out
vital information such as the reason for the threats from other prisoners. Therefore, Guard
Doherty was not aware of facts from which an inference of risk could be drawn.
1
2
Summarize the argument before providing detail, continued
Can you tell which side the writer represents - the prisoner or the guard? Why?
Example B
A prison guard’s realization of the risk of harm to a prisoner is established by a guard’s
admission of the risk or by the obviousness of the risk. In a gang targeting case, a
prisoner must show that a guard was aware of the attacker’s gang affiliation. Here, Guard
Doherty made no admission of risk of harm. Further, prisoner Peterson cannot establish
that the risk of the stabbing was obvious because Peterson himself admits he was
surprised by the attack.
Guard Doherty’s verbal statements demonstrated that he realized the risk of harm to
prisoner Peterson. When Peterson told Doherty that the gang Latin Kings had threatened
his life, Doherty joked about it and implied that Mr. Peterson should just accept the
situation.
Example C
Conscious disregard of a risk of harm to a prisoner is established when a guard takes no
precaution to avoid a known risk. Here, Guard Doherty responded reasonably to
Peterson’s concerns by allowing Peterson to request a transfer to another part of the
prison as well as asking the other prisoner, in Peterson’s presence, if there would be a
problem.
Guard Doherty responded unreasonably to the risk of harm by failing to write down the
threats in Peterson’s prison file. Further, Doherty admits he locked Mr. Peterson in a cell
with an aspiring gang member, the prisoner who stabbed Mr. Peterson.
Persuasive statements of legal rules
Can you tell which side the writer represents - the prisoner or the guard? Why?
Prison guards have a duty to protect prisoners from violence at the hands of other
prisoners. Farmer (1994). The Supreme Court emphasized the significance of this duty to
protect prisoners because they have been “stripped…of virtually every means of selfprotection.” Id.
A prisoner’s vague or general allegations of fear are not sufficient to put a prison guard
on notice of a specific risk to the inmate’s safety.
A guard does not have actual knowledge of a serious risk of harm when the risk is not
obvious to the prisoner.
A prison guard who knows of a substantial risk and fails to act reasonably in response to
the risk will be held liable to the inmate.
2
Professor Ricks
Rutgers Law School
Effective analogy


Can you tell what fact from the court decision is being compared to the client’s fact?
Can you tell why the two facts are similar?
Just as in Dale, where a prisoner failed to provide factual support for his fears because he
withheld the information that he had been labeled a “snitch,” here prisoner Peterson
stated he feared for his life but withheld that he had been labeled a “snitch,” which would
have helped substantiate his claim of fear.
client’s fact
=
fact from Dale
because the situations are similar
Like the guard in Brown, who left a white prisoner with a prisoner known to attack white
prisoners, in this case Guard Doherty placed the attacker with his “target prey,” a prisoner
who had angered the prison gang the attacker was trying to join.
client’s fact
=
fact from Brown
because the situations are similar
Like the guard in Riccardo, who had no obligation to believe the prisoner’s assertion that
the Latin Kings gang planned to kill him because the guard was unaware of any facts
supporting the prisoner’s claim, Guard Doherty had no obligation to believe prisoner
Peterson’s claim that the Latin Kings were going to kill him because Doherty was
unaware of any facts supporting Peterson’s claim.
client’s fact
=
fact from Riccardo
because the situations are similar
Like Fisher, where this Court held the guard must have been surprised by the attack
because the prisoner himself admitted being surprised by the attack, here Guard Doherty
must have been surprised by the attack since Peterson admitted the attack came “out of
nowhere.”
client’s fact
=
fact from Fisher
because the situations are similar
Effective distinctions


Can you tell what fact from the court decision is being compared to the client’s fact?
Can you tell why the two facts are different?
Unlike in Lewis, where the risk was not obvious because gang members in the prison
concealed their gang affiliation, here gang affiliation was easier to see because the
sleeveless prison uniforms allowed gang tattoos to be plainly visible to guards.
client’s fact
≠
fact from Brown
because the situations are different
3
4
Effective distinctions, continued


Can you tell what fact from the court decision is being compared to the client’s fact?
Can you tell why the two facts are different?
Unlike the guard in Weiss, who knew that the prisoner’s crime had been reported by the
media and heard other prisoners yell threats at the prisoner, Guard Doherty did not see
anyone threaten Peterson or have reason to believe any characteristic of Peterson’s put
him at special risk of attack.
client’s fact
≠
fact from Weiss
because the situations are different
Unlike the prisoner in Dale who refused to give the guards any information, here Mr.
Peterson explicitly told Guard Doherty that the Latin Kings threated to kill him.
client’s fact
≠
fact from Dale
because the situations are different
Mr. Peterson reported the threats from the prison gang when he received them, unlike the
prisoner in Shields, who did not report threats to the guard.
client’s fact
≠
fact from Shields
because the situations are different
Mr. Peterson is unlike the detainee in Grieveson, who never told guards that he feared
attacks from gang members or that there had been threats of future violence. By contrast
with Grieveson, in this case Mr. Peterson told Guard Doherty directly that he had been
threatened with future violence from a specific gang
client’s fact
≠
fact from Grieveson
because the situations are different
Unlike the victim in Riccardo, who was directly asked if there was a problem and said no,
Mr. Peterson was never asked whether he had a problem with being locked in the same
cell with the attacker.
client’s fact
4
≠
fact from Riccardo
because the situations are different