See id. at 394, 395 & n. 10, 109 S.Ct. at 1871 & n. 10.
The Supreme Court has expressly stated that the Eighth
Amendment applies to post-conviction prisoners.*fn6 See Graham
v. Connor, 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10
("After conviction, the Eighth Amendment `serves as the primary
source of substantive protection . . . in cases . . . where the
deliberate use of force is challenged as excessive and
unjustified.'") (citing Whitley v. Albers, 475 U.S. 312, 327,
106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)); see also, e.g.,
Brown v. Doe, 2 F.3d 1236, 1242 n. 1 (2d Cir. 1993), cert.
denied, 510 U.S. 1125, 114 S.Ct. 1088, 127 L.Ed.2d 403 (1994);
Covino v. Vermont Dep't of Corrections, 933 F.2d 128, 129 (2d
Cir. 1991); Malloy v. DeFrank, 95 Civ. 9122, 1996 WL 631725 at
*3 (S.D.N.Y. Oct. 31, 1996) (Peck, M.J.).
The Fourth Amendment applies to pre-arraignment excessive force
claims arising out of a search or seizure, neither of which Ali
claims occurred in this instance. See, e.g., County of
Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1715, 140
L.Ed.2d 1043 (1998) (Fourth Amendment is not applicable where
excessive force claim arose during a police chase, not during an
actual search or seizure); Tierney v. Davidson, 133 F.3d 189,
199 (2d Cir. 1998) ("Plaintiffs do not assert that they were
arrested or seized, and therefore these [excessive force] claims
fall outside the Fourth Amendment protections applied in Graham
v. Connor . . ., and are governed instead by the Due Process
Clause of the Fourteenth Amendment."); Blake v. Base, No.
90-CV-0008, 1998 WL 642621 at *10-11 & n. 21-22 (N.D.N.Y. Sept.
14, 1998) (distinguishing between a Fourth Amendment excessive
force claim brought by a post-arrest detainee pre-arraignment
before he had been formerly charged, and a claim brought by a
post-arraignment pretrial detainee).
Because Ali's claim arose while he was a post-arraignment,
pre-conviction pretrial detainee, and since neither the Eighth
nor the Fourth Amendment covers his claim, it is properly
analyzed under the Fourteenth Amendment substantive due process
standard. See, e.g., County of Sacramento v. Lewis,
523 U.S. 833, 118 S.Ct. at 1714-15 (substantive due process analysis is
the applicable standard where a constitutional claim relating to
physically abusive government conduct does not arise under either
the Fourth or Eighth Amendments); Graham v. Connor, 490 U.S. at
395 n. 10, 109 S.Ct. at 1871 n. 10 ("It is clear, however, that
the Due Process Clause protects a pretrial detainee from the use
of excessive force that amounts to punishment"); Brown v. Doe,
2 F.3d at 1242 & n. 1 (prisoner "properly invokes the Due Process
Clause as the source of constitutional protection against the
violence inflicted on him" when he was "brutally beaten by law
enforcement officials during his detention at [a state] [j]ail");
Covino v. Vermont Dep't of Corrections, 933 F.2d at 129 ("the
district court correctly observed that as a pre-trial detainee,
[plaintiff's] claims were governed by the due process clause,
rather than the eighth amendment"); Rivera v. New York, 96 Civ.
7697, 1999 WL 13240 at *10 (S.D.N.Y. Jan. 12, 1999); Santiago v.
Semenza, 965 F. Supp. 468, 471 (S.D.N.Y. 1997); Cuoco v.
Hershberger, 93 Civ. 2806, 1996 WL 648963 at *4-5 (S.D.N.Y. Nov.
6, 1996); Pristell v. County of Sullivan, 91 Civ. 6317, 1996 WL
11210 at *4-5 (S.D.N.Y. Jan. 10, 1996); Rahman v. Philip, 92
Civ. 5349, 1995 WL 679251 at *4 (S.D.N.Y. Nov. 15, 1995), aff'd
mem., 104 F.3d 356 (2d Cir. 1996), cert. denied,
520 U.S. 1267, 117 S.Ct. 2438, 138 L.Ed.2d 198 (1997).
In order to state a claim for excessive force under the
Fourteenth Amendment, the governmental act complained of must be
such an abuse of power as to shock the conscience in a
sense. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833,
118 S.Ct. at 1717 ("for a half a century now we have spoken of
the cognizable level of executive abuse of power as that which
shocks the conscience") (citing, inter alia, Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir.) (Friendly, C.J.), cert. denied,
414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)); Rivera v.
New York, 1999 WL 13240 at *10; Santiago v. Semenza, 965
F. Supp. at 471; Cuoco v. Hershberger, 1996 WL 648963 at *5;
Mathie v. Fries, 935 F. Supp. 1284, 1299 (E.D.N.Y. 1996),
aff'd, 121 F.3d 808 (2d Cir. 1997).
The Supreme Court has explained that the "conscience shocking"
standard is higher than that of common law negligence: "the
Constitution does not guarantee due care on the part of state
officials; liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process." County of Sacramento v. Lewis, 523 U.S. 833, 118
S.Ct. at 1718. Since the "[r]ules of due process are not . . .
subject to mechanical application," the concept of "conscience
shocking," varies according to the different environments in
which the alleged excessive force occurs. County of Sacramento
v. Lewis, 523 U.S. 833, 118 S.Ct. at 1718-19.
In Johnson v. Glick, 481 F.2d at 1033, which involved facts
remarkably similar to this case (the prisoner alleged excessive
force when a corrections officer attacked him for talking back),
Judge Friendly applied the conscience shocking standard later
reiterated by the Supreme Court in County of Sacramento v.
Lewis, and articulated four factors a court should consider in
determining whether a prison officer's conduct violated a
pretrial detainee's substantive due process rights:
In determining whether the constitutional line has
been crossed, a court must look to such factors as
[A] the need for the application of force, [B] the
relationship between the need and the amount of force
that was used, [C] the extent of injury inflicted,
and [D] whether force was applied in a good faith
effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of
Johnson v. Glick, 481 F.2d at 1033; accord, e.g., Tierney v.
Davidson, 133 F.3d at 199; Rivera v. New York, 1999 WL 13240
at *10; Santiago v. Semenza, 965 F. Supp. at 471; Cuoco v.
Hershberger, 1996 WL 648963 at *5; Pristell v. County of
Sullivan, 1996 WL 11210 at *5; Rahman v. Philip, 1995 WL
679251 at *4.