Sean Hoard v. J. Hartman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN COLBY HOARD, No. 16-35738

Plaintiff-Appellant,

D.C. No.

v. 2:13-cv-02161-

BR

J. HARTMAN; BROWN, MR.; ORTEGA,

MR.; E. SALDAVAR; JAMES A.

TAYLOR; MARK NOOTH, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted May 17, 2018

Portland, Oregon

Filed September 13, 2018

Before: A. Wallace Tashima, M. Margaret McKeown,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

2 HOARD V. HARTMAN

SUMMARY *

Prisoner Civil Rights

The panel vacated the district court’s summary judgment

and judgment entered following a jury trial, and remanded

for a new trial, in an action brought by an Oregon state

prisoner pursuant to 42 U.S.C. § 1983 alleging excessive

force and deprivation of property.

Plaintiff alleged that during a cell search a prison official

repeatedly slammed his head against a steel door and a

concrete floor. During trial, the district court instructed the

jury, in part, that to succeed on his excessive force claim,

plaintiff had to prove that the prison official acted

maliciously and sadistically for the purpose of causing harm.

The district court further instructed the jury that the term

“sadistically” in this context meant “having or deriving

pleasure from extreme cruelty.”

The panel held that a claim for excessive force under the

Eighth Amendment does not require proof that an officer

enjoyed or otherwise derived pleasure from his or her use of

force. The district court therefore plainly erred by

instructing the jury that “maliciously and sadistically for the

very purpose of causing harm” required having or deriving

pleasure from extreme cruelty. The panel held that these

erroneous instructions prejudiced plaintiff, and that

intervention was necessary to prevent a miscarriage of

justice.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HOARD V. HARTMAN 3

The panel vacated the district court’s sua sponte grant of

summary judgment to the defendants on plaintiff’s

deprivation-of-property claim after determining that

plaintiff, who was proceeding pro se at the time, failed to

receive sufficient notice that the claim was at issue on

summary judgment.

COUNSEL

Joshua Hafenbrack (argued) and Sean A. Lev, Kellogg

Hansen Todd Figel & Frederick PLLC, Washington, D.C.,

for Plaintiff-Appellant.

Peenesh Shah (argued), Assistant Attorney General;

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,

Attorney General; Office of the Attorney General, Salem,

Oregon; for Defendants-Appellees.

OPINION

PAEZ, Circuit Judge:

Cruelty distilled is harm inflicted without reason: pain

for the sake of pain, violence in the name of violence. For

this reason, the Supreme Court has long held that the Eighth

Amendment forbids the application of force by officers

against an inmate “for the very purpose of causing harm,”

Whitley v. Albers, 475 U.S. 312, 320–21 (1986), without

regard to the officers’ emotional enjoyment. A correctional

officer who slams an unresisting inmate’s head into a

concrete floor until he bleeds is therefore no less liable for

excessive force if he does so dispassionately than if he does

so with pleasure.

4 HOARD V. HARTMAN

Notwithstanding these well-established principles, the

district court instructed the jury that in order for Sean Hoard

to prevail on his excessive force claim under the Eighth

Amendment, he had to prove by a preponderance of the

evidence that his alleged abuser “ha[d] or deriv[ed] pleasure

from extreme cruelty” while beating him. This instruction

saddled Hoard with the unnecessary and exceedingly

difficult burden of proving that the officer was not just cruel,

but sadistic as well. Unsurprisingly, the jury returned a

verdict in favor of the officer.

We hold that excessive force under the Eighth

Amendment does not require proof that an officer enjoyed

or otherwise derived pleasure from his or her use of force.

The district court’s instructions to the contrary were plainly

erroneous. Moreover, these erroneous instructions

prejudiced Hoard. Given the circumstances of this case, we

conclude that our intervention is necessary to prevent a

miscarriage of justice. We therefore vacate the district

court’s judgment and remand for a new trial. We also vacate

the district court’s sua sponte grant of summary judgment to

the Defendants on Hoard’s deprivation-of-property claim for

lack of adequate notice. 1

I.

A.

On the morning of December 21, 2012, Hoard requested

a razor for personal use. At the time, he was confined to a

cell in the Intensive Management Unit (“IMU”) at the Snake

1

Defendants are Mark Nooth and James Taylor, Snake River

Correctional Institution’s superintendent and grievance coordinator,

respectively, Officer Hartman, Officer Ortega, Officer Saldivar, and

Sergeant Brown.

HOARD V. HARTMAN 5

River Correctional Institution, a prison located in eastern

Oregon. The IMU is a maximum custody unit reserved for

inmates who have previously exhibited violent behavior or

who otherwise present serious management concerns.

Inmates confined in the IMU are subject to significant

restrictions. They are not permitted to keep their razors in

their cells and must request them from the correctional

officer on duty. They spend 23 hours a day in their cells and

may leave only for showers, recreational activity, and

medical attention. Before exiting their cells, IMU inmates

must be handcuffed through a cuff port. At least two

correctional officers are required to escort IMU inmates to

their destination at all times.

Officer Ortega, the correctional officer on duty that

morning, granted Hoard’s request and issued him a razor

pursuant to IMU policies. The parties dispute whether

Officer Ortega provided Hoard with a functioning razor.

Regardless, it is undisputed that Hoard smashed the razor

into pieces out of frustration, flushing the smaller fragments

down the toilet and sweeping the larger ones into the trash

can. Unable to retrieve the razor during his return trip to

Hoard’s cell in the afternoon, Officer Ortega enlisted the

assistance of Sergeant Brown and Officer Saldivar to

conduct a search of Hoard’s cell for the missing razor pieces.

The parties agree that Hoard initially complied with the

search and submitted to the restraints without difficulty.

Hoard was cuffed and left outside his cell, during which time

he was “compliant,” “quiet,” and behaving “fine.”

From this point on, however, the parties’ narratives

sharply diverge. Hoard testified at trial that while waiting

for the other officers to complete their search, he saw Officer

Hartman walk towards him with a threatening grin on his

face. This was particularly concerning to Hoard, who

6 HOARD V. HARTMAN

believed that Officer Hartman bore a grudge against him

based on their prior interactions.

In this version of events, Hoard’s sense of foreboding

proved prescient. He testified that while the other officers

were preoccupied with searching his cell, Officer Hartman

grabbed him by the collar and started to yank and jerk him

around, making it difficult for Hoard to breathe. When

Hoard asked Officer Hartman to stop, Officer Hartman

allegedly responded that this was what Hoard deserved and

threatened that “this is going to hurt.” Hoard then called out

to Officer Saldivar, who came out of the cell to assess the

situation. According to Hoard, Officer Saldivar asked

Officer Hartman to loosen his grip on Hoard’s collar and to

stop provoking Hoard. Satisfied that Officer Hartman was

following his instructions, Officer Saldivar turned away and

headed back towards the cell to resume his search.

Shortly thereafter, Officer Hartman allegedly grabbed

Hoard by the back of his head and slammed his face against

a steel door. Hoard testified that he lost consciousness and

that when he came to a short while later, he felt blood

dripping down his face and off his nose. He also realized

that his pants and underwear had been pulled down to his

ankles, leaving him exposed in front of the officers and other

inmates. Hoard testified that although the other three

officers were present and watching, none of them offered

him any help or explanation for what happened. Hoard

curled himself into a fetal position on the ground, but to no

avail. Declaring that “this” was what Hoard deserved,

Officer Hartman allegedly proceeded to slam Hoard’s face

into the concrete floor, scraping his bleeding cut across the

HOARD V. HARTMAN 7

drain. 2 By this point, Sergeant Brown and Officer Ortega

had left the unit to retrieve leg restraints for Hoard. Officer

Saldivar remained but did not intervene. Hoard explained at

trial that he tried to remain “limp” throughout the alleged

abuse, because he was scared that any movement on his part

would exacerbate the situation and result in the use of

additional force.

The officers’ recollection of the incident presents a

different story. In this version of events, Hoard grew

increasingly agitated while waiting for the search to finish

and began to “thrash[] his head back and forth” as the other

inmates taunted him from inside their cells. Officer Hartman

testified that he ordered Hoard to remain calm and then

“placed” Hoard against the cell door. Officer Saldivar

testified that he briefly stepped outside of Hoard’s cell to tell

Hoard to “relax,” but that he returned to the cell after Officer

Hartman told him to go back to the search. After

overhearing Hoard demand that Officer Hartman let him go,

Officer Saldivar moved to assist Officer Hartman with

restraining Hoard. Officer Saldivar testified that he grabbed

and swept Hoard’s legs and that the movement pulled

Hoard’s pants and underwear down, leaving Hoard exposed.

Hoard allegedly then asked the officers, “Is this all you got?”

Officer Hartman testified that together with Officer

Saldivar, he “plac[ed]” Hoard on the floor and used only

“minimal” force to restrain Hoard. Officer Hartman also

testified that he never saw Hoard’s pants pulled down to his

ankles and that Hoard never lost consciousness. The officers

eventually put leg irons on Hoard’s ankles because he was

allegedly kicking his legs and thrashing his head back and

2

Installed to drain water from the cells in the case of a flood, the

drain runs the full length of the cells and is covered by a metal grate.

8 HOARD V. HARTMAN

forth while on the ground. Neither Officer Hartman nor

Officer Ortega recalled seeing any injuries on Hoard either

during or after the incident, but a body spill response report

prepared afterwards described “blood on [the] floor” in front

of Hoard’s cell. The altercation was not video recorded.

Hoard was moved to intake, where a nurse cleaned the

blood from his face, rinsed his cut, and applied glue and a

butterfly bandage to his laceration. A few days after the

incident, Hoard attempted suicide by overdosing on pills.

He testified that his suicide attempt was fueled in part by the

embarrassment and humiliation he felt at having his pants

and underwear ripped down in front of the other inmates,

some of whom he “considered predators.” As for physical

injuries, in addition to the cut on his face—which left a scar

on his head—Hoard suffered continuous pain on the right

side of his face and in particular, his right jaw, for which he

was eventually prescribed painkillers. Hoard was also

prescribed a mouth guard for the pain and placed on a liquid

diet for a short period of time. At Hoard’s request, he was

moved from a liquid diet to a soft diet, which lasted under a

month. The injury did not fully heal: three years later, Hoard

testified that he could not fully open his mouth without

popping his jaw and that his jaw would hurt if he talked for

too long.

Following the altercation, Captain Robert Real prepared

an “unusual incident report” based on each of the four

officers’ memos. 3 This report, like the officers’ memos,

failed to mention the injuries to Hoard’s jaw, the officers’

3

Captain Real testified that an unusual incident report documents

“anything . . . unusual to the institution that could be a matter of interest

to the general public at a later point.” This includes any use of force

against inmates.

HOARD V. HARTMAN 9

use of leg restraints, or the fact that Hoard had been left

exposed from the waist down while on the prison floor.

Although Captain Real testified at trial that he thought that

the use of force had been appropriate and necessary, a

preliminary review of the unusual incident report

recommended that the incident be investigated under full

review. 4 The preliminary review expressed concern that the

officers’ memos “lack[ed] detail” and “[did] not mention the

injury to inmate Hoard.” The review also included a

handwritten note stating that “[a] camera should have been

used to video the event as a planned use of force.” Contrary

to the preliminary review’s recommendation, however, no

full review ever took place because the Inspector General

deemed it unnecessary.

B.

Hoard filed a pro se complaint alleging various

constitutional and state law violations against the

Defendants on December 9, 2013. The district court granted

Hoard’s motion to file a first amended complaint, and the

Defendants moved for summary judgment.

Because Hoard was unrepresented, the district court—

adopting the magistrate judge’s report and

recommendation—liberally construed Hoard’s complaint as

raising four types of claims: a section 1983 claim against

Snake River Correctional Institution’s superintendent, Mark

Nooth, and grievance coordinator, James Taylor, for

4

According to Captain Real, conducting a full review requires

bringing in an “outside body” staffed with people “outside the institution

that would review all the facts, conduct interviews of staff that were

involved, review any kind of documentation, videos,” and other

materials to determine whether the use of force fell within the rules.

10 HOARD V. HARTMAN

violating Hoard’s Fourteenth Amendment right to due

process; a section 1983 excessive force and deliberate

indifference claim under the Eighth Amendment against

Nooth, Officers Hartman, Ortega, Saldivar, and Sergeant

Brown; supplemental state common law claims against all

Defendants; and state constitutional claims against Hartman

and Taylor. 5 The district court granted Defendants’ motion

for summary judgment as to Nooth and Taylor on all claims.

With respect to Taylor, the court concluded that although

Hoard alleged in his complaint that he had been deprived of

his property from December 21, 2012 to January 10, 2013,

his failure to detail exactly what property he was deprived of

meant that there was no genuine issue of material fact

supporting his allegations that he had been deprived of a

constitutionally-protected property interest. The district

court denied Defendants’ motion for summary judgment and

qualified immunity on the remaining excessive force and

deliberate indifference claims. 6

The district court set the case for trial and appointed pro

bono counsel to represent Hoard. The trial lasted two days.

At the conclusion of the evidence, the district court granted

judgment as a matter of law for Sergeant Brown and Officer

Ortega. Hoard’s excessive force claim against Officer

Hartman and his deliberate indifference claim against

Officer Saldivar went to the jury. Pursuant to the parties’

jointly proposed jury instructions, the district court

instructed the jury that to succeed on his excessive force

5

Hoard successfully filed a second amended complaint, but the

complaint was unaccompanied by a declaration attesting to its contents.

Accordingly, the district court relied only on Hoard’s first amended

complaint for its summary judgment order, as do we.

6

The district court granted summary judgment to the Defendants on

Hoard’s state common law and state constitutional claims.

HOARD V. HARTMAN 11

claim, Hoard had to prove that Officer Hartman “used

excessive and unnecessary force against the plaintiff under

all the circumstances,” that Officer Hartman had “acted

maliciously and sadistically for the purpose of causing

harm,” and that Officer Hartman’s acts harmed Hoard.

Midway through the jury’s deliberations, which

ultimately lasted eight hours, four of the jurors sent a signed

note asking the district court to “provide a definition for

maliciously and for sadistically as it pertains to this case.”

Inexplicably, counsel for Hoard agreed that the court should

respond with the “ordinary dictionary meaning of the terms

‘malicious’ and sadistic.’” The district court therefore

responded to the jurors’ question with a supplemental

instruction explaining that “[t]he term ‘maliciously’ in the

instructions has its ordinary meaning, which is ‘having or

showing a desire to cause harm to another.’ Likewise, the

term ‘sadistically’ has its ordinary meaning, which in this

context means ‘having or deriving pleasure from extreme

cruelty.’”

After receiving the supplemental instruction, the jury

returned a verdict finding that Hoard had failed to prove by

a preponderance of the evidence that Officer Hartman used

excessive force. Because the jury did not find that Officer

Hartman used excessive force, Hoard necessarily failed to

prove that Officer Saldivar was deliberately indifferent to the

use of excessive force.

This, however, did not mark the end of the trial.

Following the jury’s verdict, the district court asked if any

of the jurors had anything they wished to say. In response,

one of the jurors expressed to the court his or her discomfort

with the “incomplete” nature of the officers’ reports and

remarked that this concern was shared by all of the jurors.

The juror was particularly troubled by the fact that some of

12 HOARD V. HARTMAN

the reports omitted any mention of Hoard’s injuries, which

made it “difficult” for the juror to believe that the jurors “had

all the information.” Another juror expressed “concern[]

that the situation was not a good one for anybody” and that

there were “things that need[ed] to be addressed in this kind

of . . . incarceration situation.”

Nonetheless, in accordance with the verdict, the district

court entered judgment in favor of the Defendants. Hoard

timely appealed and we appointed pro bono counsel.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the district court’s supplemental jury instructions for

plain error because counsel for Hoard failed to object to the

district court’s proposed definition for “sadistically” at trial. 7

See C.B. v. City of Sonora, 769 F.3d 1005, 1016–17 (9th Cir.

2014) (en banc) (holding that plain error review applies in

civil cases “when a party fails to preserve an objection”); see

also Fed. R. Civ. P. 51(d) (“A court may consider a plain

error in the instructions that has not been preserved as

required by Rule 51(d)(1) if the error affects substantial

rights.”).

We reject Hoard’s argument that we may apply de novo

review to the district court’s supplemental jury instructions

simply because his appeal presents a pure question of law.

Although it is true that we have occasionally applied de novo

7

The standard of review is identical for jury instructions and

supplemental jury instructions given in response to a jury’s questions.

See United States v. Castillo, 866 F.2d 1071, 1085 (9th Cir. 1988).

Defendants do not argue waiver, only forfeiture. Accordingly, both

parties agree that, at a minimum, plain error review applies to the district

court’s supplemental instruction.

HOARD V. HARTMAN 13

review to unpreserved arguments in criminal cases “where

the appeal presents a pure question of law and there is no

prejudice to the opposing party,” United States v. Gonzalez-

Aparicio, 663 F.3d 419, 426 (9th Cir. 2011), we have never

recognized this exception for civil cases. Nor do we see a

need to expand this exception beyond the criminal context

given that “the stakes are lower in the civil context.” C.B.,

769 F.3d at 1018.

We review de novo a district court’s decision to grant

summary judgment. See Brunozzi v. Cable Commc’ns, Inc.,

851 F.3d 990, 995 (9th Cir. 2017).

III.

We turn first to Hoard’s argument that the district court’s

supplemental jury instructions were plainly erroneous. We

may exercise our discretion to correct a district court on plain

error review when the following factors are met: (1) the

district court erred; (2) the error was obvious or plain; (3) the

error affected substantial rights; and (4) the error “seriously

impaired the fairness, integrity, or public reputation of

judicial proceedings.” C.B., 769 F.3d at 1018–19 (quoting

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir.

2006)). We may also take into consideration “the costs of

correcting an error, and—in borderline cases—the effect that

a verdict may have on nonparties,” although these

considerations are by no means dispositive as to whether we

will exercise our discretion to correct forfeited errors. Id. at

1018.

We conclude that the district court’s supplemental

instructions to the jury were plainly erroneous. Because this

error likely prejudiced the outcome of the case and—left

uncorrected—would contribute to a miscarriage of justice,

we vacate the district court’s judgment and remand for a new

14 HOARD V. HARTMAN

trial on Hoard’s excessive force and deliberate indifference

claims against Officers Hartman and Saldivar. 8

A.

There is no doubt that the Constitution does not require

proof of sadism, or pleasure from extreme cruelty, for

excessive force claims brought under the Eighth

Amendment. Accordingly, the district court erred when it

included such a requirement in its supplemental instruction

to the jury.

The Eighth Amendment has long guarded inmates

against the “unnecessary and wanton infliction of pain.”

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality

opinion); see also Estelle v. Gamble, 429 U.S. 97, 102–03

(1976) (“Thus, we have held repugnant to the Eighth

Amendment punishments which . . . involve the unnecessary

and wanton infliction of pain.” (internal citations and

quotation marks omitted)). For a time, this meant that the

sanctions imposed on inmates could not “be so totally

without penological justification that [they] result[] in the

gratuitous infliction of suffering.” Gregg, 428 U.S. at 183.

The focus of this inquiry was therefore not on officer intent,

but on the lack of any penological justification for harming

the inmate.

The Gregg and Estelle standard for “unnecessary and

wanton infliction of pain” in excessive force cases was short-

lived. In Whitley v. Albers, 475 U.S. 312 (1986), the

Supreme Court clarified that in some circumstances, “the

8

We therefore do not address Hoard’s argument that the district

court erroneously excluded Officer Ortega’s deposition statements on

cross-examination.

HOARD V. HARTMAN 15

question whether the measure taken inflicted unnecessary

and wanton pain and suffering ultimately turns on ‘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.’” Id. at 320–21 (emphasis added)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973) (Friendly, J.)). By focusing on the officer’s intent at

the time he or she acted, Whitley ensured that officers would

not be held liable under the Eighth Amendment “simply

because it may appear in retrospect that the degree of force

authorized or applied for security purposes was

unreasonable, and hence unnecessary in the strict sense.” Id.

at 319. As Justice Marshall pointed out in his dissent, the

majority opinion in Whitley created a “distinct and more

onerous burden” for plaintiff prisoners than the original

unnecessary and wanton standard, which did not require

proof that the officers acted for the purpose of causing harm.

Id. at 328–30 (Marshall, J., dissenting).

In the decades since Whitley was decided, the Supreme

Court has consistently emphasized that the “core judicial

inquiry” in excessive force cases is “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. 1, 7 (1992) (emphasis

added); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)

(same). The contrast is clear: an officer who harms an

inmate as part of a good-faith effort to maintain security has

acted constitutionally, but an officer who harms an inmate

“for the very purpose of causing harm,” Whitley, 475 U.S. at

321, has engaged in excessive force, provided that the other

elements of excessive force have been met. 9 Put simply,

9

The other two elements of an Eighth Amendment excessive force

claim are 1) “the defendant used excessive and unnecessary force under

16 HOARD V. HARTMAN

officer intent—not officer enjoyment—serves as the core

dividing factor between constitutional and unconstitutional

applications of force. Thus, “[a]n inmate who is gratuitously

beaten by guards does not lose his ability to pursue an

excessive force claim merely because he has the good

fortune to escape without serious injury.” Wilkins, 559 U.S.

at 38 (emphasis added).

Defendants nonetheless urge us to conclude that the

district court did not err in instructing the jury on the

meaning of “sadistically” because Whitley established that

only force applied “maliciously and sadistically to cause

harm” constitutes excessive force. In support of their

argument, Defendants point to a string of Eighth Circuit

decisions explaining that “[t]he word ‘sadistically’ is not

surplusage; ‘“maliciously” and “sadistically” have different

meanings, and the two together establish a higher level of

intent than would either alone.’” Jackson v. Gutzmer,

866 F.3d 969, 974 (8th Cir. 2017) (quoting Howard v.

Barnett, 21 F.3d 868, 872 (8th Cir. 1994)); see also Parkus

v. Delo, 135 F.3d 1232, 1234 (8th Cir. 1998) (concluding

that the district court did not abuse its discretion by defining

“sadistically” for the jury).

We decline to follow our sister circuit’s interpretation of

Whitley. As we have cautioned before, “[o]pinions, unlike

statutes, are not usually written with the knowledge or

expectation that each and every word may be the subject of

searching analysis.” 10 United States v. Muckleshoot Indian

all of the circumstances”; and 2) the defendant’s acts caused the plaintiff

harm. 9th Cir. Civ. Jury Instr. 9.26 (2017).

10

We also do not find the Seventh Circuit’s decision in Fillmore v.

Page, 358 F.3d 496 (7th Cir. 2004) persuasive, because the opinion does

HOARD V. HARTMAN 17

Tribe, 235 F.3d 429, 433 (9th Cir. 2000). Sometimes, a word

is just a word. And there is ample evidence here that the

Supreme Court did not intend its use of “maliciously and

sadistically” in Whitley to work a substantive change in the

law on excessive force beyond requiring intent to cause

harm. Chief among this evidence is the fact that the Supreme

Court has never addressed “maliciously and sadistically”

separately from the specific intent to cause harm. It has

even, on one occasion, omitted any mention of “maliciously

and sadistically” altogether and simply explained that “a

purpose to cause harm is needed for Eighth Amendment

liability in a [prison] riot case.” Cty. of Sacramento v. Lewis,

523 U.S. 833, 854 (1998). Indeed, as recently as Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court

referred to this factor of the excessive force test as the

“malicious and sadistic purpose to cause harm.” Id. at 2476

(emphasis added).

The Court’s characterization of this standard in Kingsley

comports with our understanding that the phrase

“maliciously and sadistically” serves a predominantly

rhetorical function. Rather than create additional elements

for plaintiffs to satisfy, the use of these two terms

emphasizes the cruelty inherent in harming an inmate for no

other reason than to cause harm. See also Gottlieb ex rel.

Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175

n.1 (3d Cir. 2001) (explaining that “[t]he use of the term

‘sadistic’ in this standard is something of a misnomer,”

because “[p]recedent does not require that the alleged

offender take pleasure or satisfaction from the injury, as the

term entails, but rather only that the offender intended

harm”). Thus, we concluded in Robins v. Meecham, 60 F.3d

not discuss the development of the Supreme Court’s Eighth Amendment

standard for excessive force.

18 HOARD V. HARTMAN

1436 (9th Cir. 1995), that the defendant officers were not

entitled to qualified immunity because the plaintiff had

created a triable issue of material fact as to whether the

officers had shot at him with the “specific intent to harm.”

Id. at 1440–41.

We have never required proof of sadism or masochism

in excessive force cases. As we have explained before, in

order to assess whether “the handling of [an inmate] was for

the purpose of maintaining or restoring discipline, or for the

malicious and sadistic purpose of causing him harm,” we

will “examine the need for the application of the measure or

sanction complained of, the relationship between the need

and the measure or sanction used, the extent of any injury

inflicted, and the extent of the surrounding threat to the

safety of staff and inmates.” LeMaire v. Maass, 12 F.3d

1444, 1454 (9th Cir. 1993). Consistent with Whitley and its

progeny, an officer’s subjective enjoyment is not a necessary

element of an Eighth Amendment excessive force claim. Of

course, an officer who harms an inmate for his or her

personal enjoyment has engaged in excessive force, but that

is not the question before us: the question is whether proof

of sadism is required for excessive force claims. We hold

that it is not. See id. at 1461 (“[T]he record establishes

conclusively that none of the named practices were

unnecessary, or imposed on [the plaintiff] maliciously or

sadistically or for the purpose of causing harm.” (first

emphasis in original)); see also Jeffers v. Gomez, 267 F.3d

895, 912 (9th Cir. 2001) (concluding that the officers were

entitled to summary judgment because there was an

“absence of evidence showing that either officer acted

purposely to injure” the plaintiff and the officers’ actions did

not suggest “malice or sadism or otherwise create an

inference of impermissible motive”).

HOARD V. HARTMAN 19

By instructing the jury that “maliciously and sadistically

for the very purpose of causing harm” required “having or

deriving pleasure from extreme cruelty,” the district court

required Hoard to prove that Officer Hartman acted with a

subjective state of mind far more demanding than that of

intent to harm. This was error.

B.

Mere error, however, is insufficient on plain error review

to support vacatur. “The second prong of the plain error

analysis requires the error to be plain or obvious.” Draper

v. Rosario, 836 F.3d 1072, 1085 (9th Cir. 2016) (internal

quotation marks omitted). In other words, it must have been

“sufficiently clear at the time of trial” that the district court’s

supplemental instruction was impermissible. Id. at 1086.

We agree with Hoard that the district court’s instruction was

plainly erroneous.

We have made clear time and time again that the “core

judicial inquiry,” Wilkins, 559 U.S. at 37 (quoting Hudson,

503 U.S. at 7), in an Eighth Amendment excessive force case

is whether the defendant officers acted in bad faith with the

intent to harm the inmate. See, e.g., Rodriguez v. Cty. of Los

Angeles, 891 F.3d 776, 795 (9th Cir. 2018) (“[T]here was

abundant evidence presented to the jury that appellants

inflicted severe injuries on appellees while they were not

resisting, and even while they were unconscious. A jury

could reasonably . . . determine that this force was not part

of a ‘good-faith effort to maintain or restore discipline.’”

(quoting Hudson, 503 U.S. at 7)); Furnace v. Sullivan,

705 F.3d 1021, 1030 (9th Cir. 2013) (concluding that

“qualified immunity was inappropriately granted” on the

plaintiff’s Eighth Amendment excessive force claim because

the plaintiff had sufficiently alleged facts showing “that a

significant amount of force was employed without

20 HOARD V. HARTMAN

significant provocation from [the plaintiff] or warning from

the officers”); Marquez v. Gutierrez, 322 F.3d 689, 692 (9th

Cir. 2003) (concluding that “shoot[ing] a passive, unarmed

inmate standing near a fight between other inmates, none of

whom was armed, when no inmate was in danger of great

bodily harm, would inflict unnecessary and wanton pain” in

violation of the Eighth Amendment); Jeffers, 267 F.3d at 912

(“The officers’ uncertainty does not suggest malice or

sadism or otherwise create an inference of impermissible

motive.”); Robins, 60 F.3d at 1440 (“We advance this

purpose of the Eighth Amendment [to restrain prison

officials] by holding prison officials liable so long as they

have a specific intent to harm.”).

At no point have we required plaintiffs to prove that their

alleged abusers derived pleasure from acts of extreme

cruelty in order to prevail on an excessive force claim. The

reason for this is simple: sadism is not—and has never

been—an element of excessive force. Just as a district court

commits plain error “when its jury instructions fail to

incorporate an element of the crime that has been clearly

established by Ninth Circuit precedent,” United States v.

Alferahin, 433 F.3d 1148, 1157 (9th Cir. 2006), so, too, does

it commit plain error when it adds an obviously non-existent

element to the plaintiff’s burden of proof.

C.

The third prong of the plain error analysis requires that

the district court’s plain error have prejudiced the

complaining party or otherwise affected his or her

substantial rights. See Draper, 836 F.3d at 1085; see also

United States v. Olano, 507 U.S. 725, 734 (1993) (“The third

and final limitation on appellate authority . . . is that the plain

error affect substantial rights. . . . [I]n most cases it means

that the error must have been prejudicial: It must have

HOARD V. HARTMAN 21

affected the outcome of the district court proceedings.”

(internal alteration and quotation marks omitted)); C.B.,

769 F.3d at 1018 (“[W]e must consider, as we do in the

criminal context, whether . . . (3) the error affected

substantial rights.” (citing Olano, 507 U.S. at 732)). We

conclude that Hoard has satisfied this factor as well.

As a general matter, “[w]hen the trial court erroneously

adds an extra element to the plaintiff’s burden of proof, it is

unlikely that the error will be harmless.” Sanders v. City of

Newport, 657 F.3d 772, 781 (9th Cir. 2011) (internal

alterations and quotation marks omitted) (quoting Clem v.

Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009)). We have

therefore concluded that a district court’s erroneous

instruction adding an unnecessary element to a plaintiff’s

burden of proof is not harmless when “it is impossible to

determine from the jury’s verdict and evidentiary record that

the jury would have reached the same result had it been

properly instructed.” Id. at 782–83.

Here, not only is it impossible to determine that the jury

would have reached the same result, there are signs that the

jury might very well have returned a different verdict had

they received the correct instructions on excessive force.

Four of the jurors paused halfway through an eight-hour

deliberation to request instructions specifically on the

meaning of “maliciously and sadistically” acting to cause

harm. Rather than instruct the jury that these terms

possessed no unique meaning outside of the specific intent

to cause harm, the district court informed the jury that they

had to find Officer Hartman derived pleasure from extreme

cruelty. Following another four hours of deliberation, the

jury returned a verdict in favor of Officers Hartman and

Saldivar, but not without considerable difficulty. Post-

verdict, one of the jurors expressed to the court his or her

22 HOARD V. HARTMAN

concern that the reports prepared by the officers were

“incomplete” and that the jury therefore did not possess “all

of the information” before returning a verdict. It is entirely

possible that one of the information gaps that so troubled this

juror (and potentially others) included the lack of evidence

as to whether Officer Hartman derived pleasure from

harming Hoard.

Because the district court’s instruction went to the heart

of Hoard’s excessive force claim and improperly added to

his burden of proof, we conclude that Hoard was prejudiced

by the district court’s erroneous instructions.

D.

Rare is the case where the district court’s errors are so

grave as to “seriously impair[] the fairness, integrity, or

public reputation of judicial proceedings.” C.B., 769 F.3d at

1019 (quoting Diaz-Fonseca, 451 F.3d at 36); see also

Teixeira v. Town of Coventry ex rel. Przybyla, 882 F.3d 13,

18 (1st Cir. 2018) (observing that reversals on plain error

review of jury instructions are “hen’s-teeth rare”). This last

prong of the plain error analysis is undoubtedly the hardest

to meet, but we conclude that it has been met.

Officers Hartman and Saldivar received every benefit

available to state officials in excessive force cases: the

opportunity to claim qualified immunity, a difficult

excessive force standard, and an instruction requiring the

jury to give deference to correctional officials in matters of

prison administration. See Hudson, 503 U.S. at 16

(Blackmun, J., concurring) (“Moreover, prison officials are

entitled to a determination before trial whether they acted in

an objectively reasonable manner, thereby entitling them to

a qualified immunity defense.”); Whitley, 475 U.S. at 329

(Marshall, J., dissenting) (“The Court imposes its heightened

HOARD V. HARTMAN 23

version of the ‘unnecessary and wanton’ standard only when

the injury occurred in the course of a ‘disturbance’ that

‘poses significant risks.’” (internal citation omitted));

Norwood v. Vance, 591 F.3d 1062, 1067 (9th Cir. 2010)

(“We have long recognized that additional instruction

regarding deference is required in cases applying Whitley to

allegedly excessive force by prison officials.”). To this, the

district court added the benefit of its unnecessary and

improper instruction on sadism. This instruction placed a

heavy thumb on the scale in favor of the Defendants by

demanding more from Hoard than the Eighth Amendment

requires.

Such a high burden of proof deprived Hoard of a

meaningful and fair opportunity to seek redress for alleged

violations of his constitutional right to be free from cruel and

unusual punishment. This was a grave injustice. At its core,

the Eighth Amendment reflects this country’s “fundamental

respect for humanity.” Woodson v. North Carolina,

428 U.S. 280, 304 (1976). That respect is lost when courts

close the doors to relief by asking plaintiffs to prove that they

were the victims of not just cruelty, but sadism as well.

We therefore exercise our discretion on plain error

review to vacate the district court’s judgment and remand for

a new trial on Hoard’s claims against Officers Hartman and

Saldivar. 11

11

The gravity of the district court’s error here outweighs the high

cost of remanding for a new trial, which ordinarily would counsel in

favor of withholding vacatur. See C.B., 769 F.3d at 1018 (“[W]hen

reviewing civil jury instructions for plain error, we find it appropriate to

consider the costs of correcting an error . . . .”). We do not consider this

a borderline case. We therefore do not consider “the effect that a verdict

may have on nonparties.” Id.

24 HOARD V. HARTMAN

IV.

Hoard also argues that the district court erred when it

adopted the magistrate judge’s recommendation and sua

sponte granted summary judgment on Hoard’s deprivation-

of-property due process claim. We agree.

Federal Rule of Civil Procedure 56(f) provides that a

district court may sua sponte grant summary judgment for a

nonmovant on grounds not raised by a party as long as the

court has given the adversely impacted party “notice and a

reasonable time to respond.” Hoard, however, received no

such notice from either the court or the Defendants. When

Defendants moved for summary judgment, they addressed

Hoard’s Fourteenth Amendment claim only as it pertained

to the prison’s grievance procedures. There was no mention

of Hoard’s deprivation-of-property due process claim. 12

We reject the Defendants’ argument that their blanket

request for “complete summary judgment on all claims,”

including Hoard’s “due process claims,” was sufficient to

give Hoard notice that his property claim was at risk.

Because pro se plaintiffs—especially pro se prisoner

plaintiffs—“cannot be expected to anticipate and

prospectively oppose arguments that an opposing defendant

does not make,” Greene v. Solano Cty. Jail, 513 F.3d 982,

990 (9th Cir. 2008), boilerplate language requesting

summary judgment on all claims does not provide sufficient

12

Hoard’s pro se complaint alleged that he was told he wouldn’t

“get his property” because of “his actions on 12-21-12,” which is when

the alleged excessive force took place. As the district court correctly

recognized, this was sufficient to allege a Fourteenth Amendment claim

based on deprivation of property. See Wolfe v. Strankman, 392 F.3d 358,

362 (9th Cir. 2004) (“We construe the complaint liberally because it was

drafted by a pro se plaintiff.”).

HOARD V. HARTMAN 25

notice that an unmentioned claim is at issue on summary

judgment.

Accordingly, we vacate the district court’s grant of

summary judgment on Hoard’s deprivation-of-property

claim and remand for proceedings consistent with this

opinion.

V.

For the foregoing reasons, we vacate the district court’s

judgment and remand for a new trial on Hoard’s 42 U.S.C.

§ 1983 excessive force and deliberate indifference claims

against Officers Hartman and Saldivar. We also vacate the

district court’s grant of summary judgment on Hoard’s

deprivation-of-property claim against Taylor.

Plaintiff-Appellant Hoard shall recover costs on appeal.

VACATED AND REMANDED.