Curtis Stewart v. Anne Precythe

United States Court of Appeals

For the Eighth Circuit

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No. 22-3297

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Curtis Stewart

Plaintiff - Appellee

v.

Anne L. Precythe

Defendant - Appellant

Jessieca Wyatt; Stephanie Noisworthy; Cody Stanley; Trevor Proffer; Sergeant

Gordon; Hollie Dysinger; William Pettus

Defendants

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Appeal from United States District Court

for the Eastern District of Missouri - Cape Girardeau

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Submitted: September 26, 2023

Filed: January 30, 2024

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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

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SHEPHERD, Circuit Judge.

Curtis Stewart, an inmate in the Missouri correctional system, filed this 42

U.S.C. § 1983 action against various Missouri Department of Corrections (MDOC)

officials alleging excessive-force and conditions-of-confinement claims. In

response, MDOC Director Anne Precythe filed a motion for judgment on the

pleadings asserting, among other things, that she was entitled to qualified immunity.

The district court denied Precythe’s motion with respect to qualified immunity, and

Precythe filed this interlocutory appeal challenging that decision. Having

jurisdiction under 28 U.S.C. § 1292, we reverse and remand.

I.

Stewart’s claims arise from his treatment as an inmate incarcerated at Eastern

Reception Diagnostic Correction Center in Bonne Terre, Missouri. In his First

Amended Complaint, Stewart alleges that, on May 19, 2017, while housed in

administrative segregation, he was assigned a new cellmate who told him that “[h]e

did not want a cellmate” and that “there was going to be a problem” if he was placed

in the same cell as Stewart. Stewart notified correctional officer Jessieca Wyatt that

he did not feel safe being placed in a cell with this individual and stated that they

were “enemies” to avoid being housed in the same cell together. In response to his

complaint, Wyatt ordered Stewart to place his hands behind his back so she could

handcuff him. After Wyatt secured the handcuffs on Stewart, Stewart told Wyatt

that they were too tight on his wrists and were causing him pain. Wyatt told Stewart

that the correctional policy was that the handcuffs should be placed on the skin, and

then she tightened the cuffs until they dug into his wrists. Wyatt then moved Stewart

from the cell and placed him on a steel bench in the housing unit, keeping Stewart’s

handcuffed hands behind his back, and “shackled [him] to it in a sitting ho[g] tie

stress position for over two hours.” During this two-hour period, Stewart

experienced pain from the handcuffs and his positioning on the bench; however,

Wyatt ignored his complaints and requests for assistance, including Stewart’s

complaint about his buttocks, which he suspected were bleeding. Stewart also

requested to use the restroom but, when Wyatt denied his request, he was forced to

urinate on himself. When Stewart notified another correctional officer, Cody

Stanley, that his handcuffs were too tight and that he was experiencing pain

throughout his body, including his rectum, which he suspected was bleeding, Stanley

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refused to check the handcuffs and stated, “you shouldn’t have checked out of the

cell, then you wouldn’t have to be worr[ied] about the cuffs being too tight.” When

Stewart was removed from the bench, Wyatt noticed that Stewart had blood on the

back of his pants and taunted him by asking him if he needed a menstrual product.

Stewart requested medical care, but Wyatt ignored his request. Instead, Stewart had

to care for himself to stop his rectal bleeding. In addition to the rectal bleeding

Stewart asserts he suffered from, Stewart also alleges that the restraint caused him

to sustain injuries to his wrist, back, and shoulder. Stewart alleges that during the

entire encounter, neither Sergeant Gordon—the correctional officer responsible for

the supervision of the segregation unit—nor any other correctional officer checked

on Stewart or intervened in any manner.

Stewart alleges that a second, similar incident occurred on May 22, 2017,

when his cellmate told correctional officers that he did not feel safe in his cell with

Stewart. Stewart was again removed from the cell, handcuffed, and “placed on the

restraint bench in a sitting hog tie stress position.” Stewart complained of pain to

the correctional officer who had restrained him, Sergeant Trevor Proffer, specifically

identifying pain in his wrist, buttocks, back, legs, and shoulders. His complaints

were ignored, and Stewart was also denied use of a restroom, once more being forced

to urinate on himself. After Stewart’s rectum again started bleeding, he asked

Proffer to see a nurse, but Proffer denied his request, stating, “You’re going to sit

there until your ass look[s] like grilled meat.” A third correctional officer, Stephanie

Noisworthy, ultimately removed Stewart from the bench but denied his second

request to see a nurse.

Stewart thereafter filed this action alleging, as relevant to this appeal,

excessive-force and conditions-of-confinement claims against Precythe in her

official and individual capacities. Stewart alleges that, as the director of the MDOC,

Precythe “promulgated and acquiesced [in] a policy and practice of cruel and

unusual punishment of excessive force by handcuffing and shackling prisoners

confined in administrative segregation units to a steel bench in a sitting hog tied

position for hours,” which “causes unnecessary pain and suffering without

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immediate access to food or water.” Stewart further asserts that Precythe, “at all

relevant times[,] authorized the policy and a practice of excessive use of force

throughout the [MDOC].”

Precythe filed a motion for judgment on the pleadings, asserting that Stewart’s

claims against her were barred by sovereign immunity, respondeat superior, and

qualified immunity. She also asserted that Stewart failed to plead exhaustion of

administrative remedies. The district court granted the motion in part and denied the

motion in part, granting the motion only insofar as Stewart sought monetary

damages for the official capacity claims against Precythe. As relevant here, the

district court denied the motion for qualified immunity, concluding that “Stewart has

sufficiently alleged that Precythe violated a constitutional right that was clearly

established at the time of the alleged violation—the right to be free of excessive use

of force.” Precythe appeals the denial of qualified immunity.

II.

Precythe asserts that the district court erred in denying judgment on the

pleadings based on qualified immunity because she did not violate Stewart’s

constitutional rights by formulating a policy that allowed the use of restraint

benches, and, even if a constitutional violation did occur, it is not clearly established

that such a restraint-bench policy violates an inmate’s constitutional rights. Precythe

further asserts that she was not involved in the conduct that Stewart alleges

constituted cruel and unusual punishment. We review de novo a district court’s

denial of a defendant’s motion for judgment on the pleadings based on qualified

immunity. Martinez v. Sasse, 37 F.4th 506, 508-09 (8th Cir. 2022). “We have

limited jurisdiction over interlocutory appeals involving qualified immunity. We do

not have jurisdiction to resolve factual disputes, but we have jurisdiction to consider

de novo the legal question of whether [an official is] entitled to qualified immunity.”

Baude v. Leyshock, 23 F.4th 1065, 1071 (8th Cir. 2022). To prevail on a motion for

judgment on the pleadings based on qualified immunity, the official “must show [she

is] ‘entitled to qualified immunity “on the face of the complaint.”’” Id. (citation

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omitted). Our review is “limited to the facts alleged in [the] complaint, which we

accept as true and view most favorably to [Stewart].” Id. at 1069.

When a public official asserts qualified immunity as a defense, a plaintiff can

overcome the defense by showing “that [the defendant] violated a constitutional

right, and that the unlawfulness of her conduct was clearly established at the time.”

Martinez, 37 F.4th at 509. To satisfy the clearly established prong, “the law must

be ‘sufficiently clear’ at the time of the officer’s conduct ‘that every reasonable

official would understand that what [s]he is doing is unlawful.’ Clearly established

law must not be defined at a ‘high level of generality’; rather, the ‘violative nature

of particular conduct’ must be clearly established.” Id. (alteration in original)

(citation omitted). “[W]e may conduct this inquiry in any order and resolve this

inquiry on either prong, regardless of the order chosen by the district court.” Brown

v. City of St. Louis, 40 F.4th 895, 899-900 (8th Cir. 2022).

“To state a claim under § 1983, the plaintiff must plead that a government

official has personally violated the plaintiff’s constitutional rights.” Jackson v.

Nixon, 747 F.3d 537, 543 (8th Cir. 2014). “In a § 1983 case an official ‘is only

liable for his . . . own misconduct’ and is not ‘accountable for the misdeeds of [his]

agents’ under a theory such as respondeat superior or supervisor liability.” Nelson

v. Corr. Med. Servs., 583 F.3d 522, 534-35 (8th Cir. 2009) (en banc) (alterations in

original) (citation omitted). Here, Stewart makes no allegations that Precythe was

personally involved in the two incidents where Stewart was restrained. See Appellee

Br. 7-8 (“Appellee concedes that Appellant did not handcuff him, Appellant did not

hog tie him to a bench for no reason, and Appellant did not ignore his pleas.”).

However, “a supervisor may still be liable under § 1983 if either h[er] direct action

or h[er] ‘failure to properly supervise and train the offending employee’ caused the

constitutional violation at issue.” Jackson, 747 F.3d at 543 (citation omitted).

Where, as here, “a supervisor is not involved in day-to-day operations, [her] personal

involvement may be found if [s]he is involved in ‘creating, applying, or interpreting

a policy’ that gives rise to unconstitutional conditions.” Id. (citation omitted).

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“‘After incarceration, only the unnecessary and wanton infliction of pain

constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’

What constitutes the ‘unnecessary and wanton infliction of pain’ varies based on the

alleged constitutional violation.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir.

2017) (citation omitted). For an excessive-force claim, “[w]henever prison officials

stand accused of using excessive physical force . . . the core judicial inquiry is . . .

whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Id. (citation omitted). In conducting

this inquiry, we focus on “such factors as the need for the application of force, the

relationship between the need and the amount of force that was used, [and] the extent

of injury inflicted.” Whitley v. Albers, 475 U.S. 312, 321 (1986) (alteration in

original). After considering these factors, we may draw “inferences . . . as to whether

the use of force could plausibly have been thought necessary, or instead evinced such

wantonness with respect to the unjustified infliction of harm as is tantamount to a

knowing willingness that it occur.” Id. Finally, “[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.’” Gutzmer, 866

F.3d at 974 (citation omitted).

In contrast, for a conditions-of-confinement claim, “[t]he Eighth Amendment

standard . . . is whether the defendants acted with deliberate indifference.” Reynolds

v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (citation omitted). “Deliberate

indifference . . . is the equivalent of criminal recklessness: the defendant must be

‘aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.’” Hodges v. Minn. Dep’t

of Corr., 61 F.4th 588, 592 (8th Cir. 2023) (citation omitted). We will find deliberate

indifference only where the official “actually knows of the substantial risk and fails

to respond reasonably to it. This standard incorporates ‘due regard for prison

officials’ unenviable task of keeping dangerous men in safe custody under humane

conditions.’” Id. (citation omitted).

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At the outset, we must consider precisely what Stewart’s excessive-force

claim alleges with respect to Precythe. The dissent asserts that Stewart’s complaint

alleges that Precythe authorized a policy and practice of excessive force, which was

applied “without provocation or need to maintain or restore discipline.” See R. Doc.

76, at 6. While Stewart’s complaint indeed contains this quoted language, it is found

within the legal conclusion that the alleged policy or practice “constitutes cruel and

unusual punishment.” R. Doc. 76, at 6. The only other language in the complaint

that could charitably be read as alleging the same is the statement that MDOC

correctional officers used the restraint policy “pretextually as a safety and security

measure.” R. Doc. 76, at 3. Again, this “naked assertion,” which lacks “further

factual enhancement[,] . . . stops short of the line between possibility and plausibility

of ‘entitle[ment] to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)

(third alteration in original) (citation omitted); see also Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“[T]he pleading standard Rule 8 announces does not require

‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” (citation omitted)).

The complaint, construed in the light most favorable to Stewart, does not

plausibly allege Precythe authorized a restraint policy permitting jailers to use

excessive force where it was unnecessary or unprovoked. Similarly, the complaint

does not plausibly allege that Precythe acquiesced in any such practice of

unprovoked or unwarranted excessive force because it fails to allege a pattern of

such conduct, instead alleging only two distinct occasions where Stewart was

restrained. See Dean v. Cnty. of Gage, 807 F.3d 931, 940 (8th Cir. 2015) (stating

that, in the context of Monell liability, the question is whether officials with

decision-making authority “affirmatively command[ed]” that conduct occur through

official policy or “acquiesce[d] in a longstanding practice or custom which

constitutes the ‘standard operating procedure’ of the local governmental entity”).

The plausible allegations of excessive force are focused entirely on the degree of

force; Stewart alleges that he was subjected to excessive force solely because of the

manner and duration of the restraint he endured.

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Considering only the plausible allegations and taking them as true—that

Precythe “promulgated and acquiesced [in] a policy . . . of . . . handcuffing and

shackling prisoners confined in administrative segregation units to a steel bench in

a sitting hog tied position for hours”—Precythe is entitled to qualified immunity

under either an excessive-force or conditions-of-confinement claim because Stewart

has failed to allege that Precythe committed a constitutional violation. Although

Stewart makes several allegations about the treatment he received from various

correctional officers—ranging from ignoring his requests for help to taunting

Stewart upon realizing he was injured—his complaint alleges that Precythe’s only

personal involvement was the authorization and promulgation of the policy at issue.

Because Precythe “is only liable for [her] . . . own misconduct,” Nelson, 583 F.3d at

534-35 (citation omitted), our review is limited to her conduct in relation to

acquiescing to and promulgating the alleged restraint policy.

This Court has had occasion to consider Eighth Amendment claims in the

context of prisoner restraint, providing parameters for when a specific restraint

amounts to a constitutional violation. In Key v. McKinney, this Court upheld

judgment in favor of correctional officers on a conditions-of-confinement claim

where the plaintiff alleged that, pursuant to facility policy, he had been shackled for

twenty-four hours with routine checks by a nurse and correction officers, concluding

that no Eighth Amendment violation occurred. 176 F.3d 1083, 1085-86 (8th Cir.

1999). Further, in Gutzmer, this Court held that a prison official was entitled to

qualified immunity on an excessive-force claim when he restrained an unruly

prisoner on a restraint board for up to four hours, in compliance with correctional

facility policy, because there was no evidence that the use of the restraint board was

a wanton and unnecessary infliction of pain. 866 F.3d at 977. There, the Court also

remarked that “punishing an inmate ‘to preserve internal order and discipline and to

maintain institutional security’ does not violate the Eighth Amendment unless the

punishment or force used is ‘repugnant to the conscience of mankind.’” Id. at 978

(citation omitted). Further, where this Court has found that correctional officials

were not entitled to qualified immunity, the duration of the restraint differed

markedly from the alleged duration of the restraint here. See Walker v. Bowersox,

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526 F.3d 1186, 1188 (8th Cir. 2008) (per curiam) (concluding that prison officials

were not entitled to qualified immunity after prisoner was restrained on a bench for

twenty-four hours with no access to food, water, or a restroom because triable issues

existed as to whether imposing such conditions was excessive and constituted a

disproportionate use of force).

Considering the foregoing precedent, Stewart’s allegations against Precythe

fall short of demonstrating a constitutional violation. Without additional facts,

Stewart’s allegation that Precythe promulgated a policy of handcuffing and

shackling a prisoner to a bench for a period of hours, coupled with his allegation that

on two occasions he was restrained for over two hours, do not, on their own, violate

the Eighth Amendment. Indeed, the allegations against Precythe regarding the

restraint policy represent the kind of punishment necessary “to preserve internal

order and discipline and to maintain institutional security,” and there are no

allegations that Precythe’s conduct in adopting and promulgating the policy is

“repugnant to the conscience of mankind.” Gutzmer, 866 F.3d at 978 (citation

omitted). Notably, the alleged duration of the restraint here is significantly shorter

than the durations in Key and Gutzmer, and there are no allegations against Precythe

that suggest the restraint policy directed the same kind of conduct that this Court

found precluded qualified immunity in Walker. Stewart’s allegations against the

other defendants, including that he was taunted and denied medical care, food, water,

or restroom breaks, are untethered from his allegations regarding the policy that

Precythe allegedly promulgated. The policy, as defined by Stewart, coupled with

Precythe’s conduct in acquiescing to or promulgating it, does not violate the Eighth

Amendment.

To the extent that Stewart relies on the use of a “hog tie” restraint to

demonstrate that the policy is unconstitutional, see, e.g., Goode v. Baggett, 811 F.

App’x 227, 229, 237 (5th Cir. 2020) (affirming denial of summary judgment on

excessive-force claim based on qualified immunity where officers hog tied

individual—by binding individual’s ankles to his wrist, behind his back, with less

than a foot of separation—in a drug-induced psychosis and placed him in a prone

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position for an extended period of time), we note that Stewart’s complaint alleges

only that he was placed in a “sitting hog tie stress position,” failing to make any

allegations about what precisely this method of restraint entails. Indeed, when

pressed about the definition of “hog tie” at oral argument, Stewart’s counsel offered

a factual description, but conceded that his description of the restraint was contained

nowhere in the complaint. See Oral Arg. at 17:21-18:18 (“I’ll . . . answer the way

hog tie was meant to be used. So, the prisoner’s hands are behind their back. Then

what’s done is they’re handcuffed behind their back, then the handcuffs are placed

on their legs, which are then pulled up more towards the bench, so what it’s doing is

it’s putting stress on their arms, stress on their legs, and then pulling those together

to handcuff to the bench further which is giving this sort of of a pig being hog tied

legs to hands just the bench is the middle ground. . . . I was only adding that factual

description as asked by the Court. I would concede though that the actual definition

or description of sitting hog tied is not contained in the complaint.”).1 Further, other

courts have recognized that “hog tie” does not have a universal definition. See, e.g.,

Cruz v. City of Laramie, 239 F.3d 1183, 1188 (10th Cir. 2001) (“We note that while

sister circuits may characterize the hog-tie restraint somewhat differently, we

understand such to involve the binding of the ankles to the wrists, behind the back,

with 12 inches or less of separation.”).

Although we must view the allegations in Stewart’s favor, without any

additional factual description of the restraint, labeling it a “hog tie” does not make

out a constitutional violation. See Ashcroft, 556 U.S. at 678 (“A pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do.’ Nor [will] ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” (second alteration in original) (citation omitted)); see also Gutierrez

v. City of San Antonio, 139 F.3d 441, 443 (5th Cir. 1998) (considering excessive-

force claim involving use of “hog tie,” which record reflected involved using “a

nylon rope with a loop on one end and a clasp on the other . . . [to] place[e] the loop

1

We are by no means certain that the description supplied by counsel at oral

argument would cure the insufficiency in the complaint’s allegations.

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around [plaintiff’s] feet, and . . . link[] the clasp around the handcuffs, drawing

[plaintiff’s] legs backward at a 90-degree angle in an ‘L’ shape”). There is no record

here on a motion for judgment on the pleadings; instead, we are left only with the

allegation that Stewart was restrained to a bench with his hands and feet behind his

back for a period of two hours on two occasions, which, as described above, does

not amount to a constitutional violation committed by Precythe. Finding no

allegation of a constitutional violation in the complaint, we need not consider

whether the right was clearly established to conclude that Precythe is entitled to

qualified immunity. Kulkay v. Roy, 847 F.3d 637, 642 (8th Cir. 2017) (“Because

an official is entitled to qualified immunity unless both prongs are satisfied, our

analysis will end if either of the two is not met.”). However, even assuming that

Stewart plausibly alleged a constitutional violation, we note that there is no

“controlling authority . . . [or] ‘robust consensus of cases of persuasive authority’”

establishing that the conduct violated the Constitution. Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011) (citation omitted). As described above, our Circuit’s case law has

never held that the use of restraint benches is per se unconstitutional, and it has found

restraint policies involving longer durations than the one at issue here to pass

constitutional muster. In light of the foregoing, we cannot say there is any

controlling authority or a robust consensus of persuasive authority that would satisfy

the clearly established prong. We therefore conclude that the district court erred in

denying qualified immunity to Precythe.

III.

For the foregoing reasons, we reverse and remand for proceedings consistent

with this opinion.

KELLY, Circuit Judge, dissenting.

In his First Amended Complaint, Stewart brought claims of excessive force

against multiple MDOC employees, including Director Precythe. Stewart alleged

that Precythe promulgated a policy that authorized conduct that violated the Eighth

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Amendment. Precythe filed a motion pursuant to Fed. R. Civ. P. 12(c), which the

district court dismissed after finding that she was not entitled to qualified immunity

at the pleadings stage. The district court concluded that Stewart sufficiently alleged

that Precythe authorized a policy and practice of using excessive force at MDOC

and found that Stewart’s right to be free of excessive force was clearly established.

I would affirm that ruling.

“At this early stage of the litigation, to warrant reversal, ‘[Precythe] must

show that [she is] entitled to qualified immunity on the face of the complaint.’” Dadd

v. Anoka Cnty, 827 F.3d 749, 754 (8th Cir. 2016) (quoting Bradford v. Huckabee,

394 F.3d 1012, 1015 (8th Cir. 2005)). Precythe does not meaningfully contest that in

the First Amended Complaint, Stewart alleged (1) that Precythe “authorized the

policy and a practice of excessive use of force,” and (2) that the force used was

excessive because it was “without provocation or need to maintain or restore

discipline.” And the excessive force the policy sanctioned came in the form of

“handcuffing and shackling prisoners confined in administrative segregation units to

a steel bench in a sitting hog-tied position for hours.”

Stewart further alleged that Precythe, as MDOC Director, was “solely

responsible for approving and promulgating these practices of excessive use of

force.” Accepting these facts as true, as we must do at this stage, Stewart sufficiently

alleged Precythe’s involvement in the unconstitutional conduct for purposes of

§ 1983. See Jackson v. Nixon, 747 F.3d 537, 544-45 (8th Cir. 2014) (denying

qualified immunity at the pleadings stage to prison directors, including the director

of MDOC, who were alleged to be personally involved in establishing and

maintaining an allegedly unconstitutional offender treatment program); Bonner v.

Outlaw, 552 F.3d 673, 679 (8th Cir. 2009) (denying qualified immunity at the

pleadings stage to a prison warden who declared “he ha[d] no personal involvement

in” the alleged constitutional violation because “[the prisoner] may be able to

prove,” after discovery, that “[the warden] was personally involved in creating,

applying, or interpreting a[n] [unconstitutional] policy” (citation omitted)); see also

Messimer v. Lockhart, 702 F.2d 729, 732 (8th Cir. 1983) (noting that the Director of

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the Arkansas Department of Correction “may be [held] responsible for his own

failure” to correct an unconstitutional policy when he had the authority to change

the complained-of policies instituted by the warden).

Stewart also alleged facts about how the policy was carried out against him.

In May 2017, Stewart was in MDOC custody and housed in an administrative

segregation unit. First, on May 19, 2017, Stewart was assigned a cellmate. The

cellmate made it clear that “he did not want a cellmate” and that if Stewart was

placed in the cell with him, “there was going to be a problem.” Stewart notified a

correctional officer that he did not feel safe in the cell. Stewart was then handcuffed,

removed from the cell, and placed on a steel bench where he was shackled in a seated

hog tie2 position for over two hours. Stewart experienced full-body pain, especially

in his shoulders, arms, wrists, legs, back, and ankles. Stewart was not permitted to

use the toilet, and his complaints of “extreme and insufferable pain” were ignored.

When he was released from the bench, he had blood on the back of his pants and

resorted to “plac[ing] toilet paper in his rectum to help stop the bleeding.”

Second, on May 22, 2017, Stewart was given another cellmate. This time, the

cellmate said he did not feel safe. In response, an officer again ordered Stewart to

the restraint bench, where he was placed in the same position as he was three days

prior. Stewart told the officer that he was in pain—feeling it especially in his swollen

wrist, and his buttocks, back, legs, and shoulders—but his complaints “went

unanswered.” He was again denied the use of a toilet, and his “rectum began to

bleed.” He was restrained on the bench for over two hours. Stewart continues to

suffer joint and nerve damage and pain as a result.

Precythe argues that the alleged policy does not violate a clearly established

constitutional right because prisons may lawfully use restraint benches. But Precythe

reads the First Amended Complaint too narrowly. Stewart did not allege that

2

However “hog tie” is defined, a reasonable inference is—at least as the term

is used here—that it describes a method for cuffing and restraining a person in a

painful “stress position.”

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Precythe promulgated a policy regarding the use of restraint benches. He alleged that

Precythe promulgated a policy that authorized the use of excessive force “without

provocation or need to maintain or restore discipline.” Even if the use of restraint

benches is not per se unconstitutional, Precythe does not dispute that use of the

restraint bench is a form of force. Force may be used in a prison setting to “resolve

a disturbance.” Whitley v. Albers, 475 U.S. 312, 320 (1986). But Stewart alleged a

situation where the use of force was not warranted at all. Hudson v. McMillian, 503

U.S. 1, 7 (2002) (“In determining whether the use of force was wanton and

unnecessary, it may also be proper to evaluate the need for application of force, the

relationship between that need and the amount of force used, the threat ‘reasonably

perceived by the responsible officials,’ and ‘any efforts made to temper the severity

of a forceful response.’” (quoting Whitley, 475 U.S. at 321)). There is nothing in the

First Amended Complaint to indicate that Stewart provoked the response of the

correctional officers or that he engaged in conduct that threatened their ability to

maintain or restore discipline. Rather, as alleged, MDOC’s use of force—which

included placement on the restraint bench—was triggered when Stewart or his

assigned cellmate expressed concerns about their cell assignments.

It is clearly established law that the use of force where none is warranted, in a

prison setting, violates the Eighth Amendment. Hickey v. Reeder, 12 F.3d 754, 758

(8th Cir. 1993) (“In this case we find that there was no need for physical force to

compel Hickey to sweep his cell. Hickey was not physically threatening the officers,

nor was the stun gun applied for that reason. The relationship between the need for

force (zero) and the force used (a painful and incapacitating shock) was excessive.

And the pain inflicted was substantial.”); Hudson, 503 U.S. at 6–7 (“[W]henever

prison officials stand accused of using excessive physical force in violation of the

Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force

was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.”).

In this case, nothing in the First Amended Complaint suggested that “prison

security and order” were in any way “placed in jeopardy,” so there was no need for

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the use of any force at all, let alone the use of the restraint bench. Hickey, 12 F.3d at

759 (citations omitted); see Walker v. Bowersox, 526 F.3d 1186, 1188 (8th Cir. 2008)

(finding “trialworthy issues as to whether [restraining an inmate on a bench for 24

hours and denying him food or water or access to a toilet] to make him accept a

specific cell mate was an excessive and disproportionate use of force”) (citations

omitted); see also Treats v. Morgan, 308 F.3d 868, 874 (8th Cir. 2002) (concluding

that the plaintiff met his burden of showing a constitutional violation at summary

judgment because, viewing the evidence in the light most favorable to plaintiff,

“there was no objective need for the degree of force used or the pain inflicted [and

defendants] could not reasonably have perceived [the plaintiff] to be a threat to

themselves or institutional security at the time”).

Taking all facts alleged in the First Amended Complaint as true, and drawing

all inferences in his favor, as we must, Stewart has made out a claim against Precythe

in her individual capacity based on her promulgation of a policy authorizing the use

of force where none is required.

I respectfully dissent.

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