Petition for Writ of Certiorari — Lynn Hamlet, Petitioner v. Officer Hoxie
Supreme Court briefJun 29, 2023
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No. ____
IN THE
Supreme Court of the United States
____________________
LYNN HAMLET,
Petitioner,
v.
OFFICER HOXIE, ET AL.,
Respondents.
____________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
____________________
PETITION FOR A WRIT OF CERTIORARI
____________________
Daniel M. Greenfield
Kathrina Szymborski
Wolfkot
RODERICK & SOLANGE
MACARTHUR JUSTICE
CENTER
501 H Street, N.E.
Suite 275
Washington, D.C. 20002
Jonathan D. Hacker
(Counsel of Record)
Damilola G. Arowolaju
Youjin Kwon
Marica Wright
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
jhacker@omm.com
Attorneys for Petitioner
i
QUESTIONS PRESENTED
Petitioner Lynn Hamlet—an elderly man with visible open wounds on his ankles resulting from diabetes—suffered a life-threatening bacterial infection after Officer Brandon Hoxie trapped him in a backedup shower filled with another person’s feces, removed
from his cell any method by which he could clean the
excrement from his wounds, and barred him from
showering for a week while human waste festered in
his sores. Hamlet brought this suit under 42 U.S.C.
§ 1983, challenging Officer Hoxie’s conduct as violating the Eighth Amendment. The Eleventh Circuit
held that Officer Hoxie was entitled to qualified immunity because there was no circuit precedent holding that the Eighth Amendment bars prison officials
from forcing an incarcerated person to have gratuitous contact with human waste under these precise
circumstances.
The questions presented are:
I. Whether it is “clearly established” for purposes
of qualified immunity that the Eighth Amendment
bars a prison official from forcing a person with diabetes and open wounds to endure prolonged and unnecessary exposure to feces.
II. Whether the Court should overrule Procunier
v. Navarette, 434 U.S. 555 (1978), and hold that qualified immunity under 42 U.S.C. § 1983 does not extend to a suit alleging that a prison guard subjected
the plaintiff to unlawful conditions of confinement,
because similar state officials were not immune from
similar suits at common law.
ii
RELATED PROCEEDINGS
Hamlet v. Hoxie, No. 2:18-cv-14167-DMM, U.S.
District Court for the Southern District of Florida.
Judgment entered on April 26, 2021.
Hamlet v. Hoxie, No. 21-11937, U.S. Court of Appeals for the Eleventh Circuit. Judgment entered on
November 9, 2022.
Hamlet v. Hoxie, No. 21-11937-CC, U.S. Court of
Appeals for the Eleventh Circuit. Order entered on
March 1, 2023.
iii
TABLE OF CONTENTS
Page
PETITION FOR A WRIT OF CERTIORARI ........... 1
OPINIONS BELOW .................................................. 1
JURISDICTION ........................................................ 1
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS .................................... 1
INTRODUCTION ..................................................... 2
STATEMENT OF THE CASE .................................. 5
REASONS FOR GRANTING THE PETITION ....... 8
I.
II.
THE DECISION BELOW CONFLICTS
WITH PRECEDENTS OF THIS COURT
AND OTHER CIRCUITS ............................... 8
A.
The Decision Below Conflicts With
Many Decisions Clearly
Establishing That Unnecessary
And Prolonged Exposure To Feces
Violates The Eighth Amendment........ 9
B.
The Decision Below Conflicts With
This Court’s Decisions In Lanier,
Hope, And Taylor Establishing The
“Obvious Violation” Doctrine ............ 17
APPLYING QUALIFIED IMMUNITY
TO OFFICER HOXIE’S CONDUCT
CONTRAVENES THE TEXT AND
PURPOSE OF § 1983 AND THE
COMMON-LAW ROOTS OF
QUALIFIED IMMUNITY ............................ 21
iv
TABLE OF CONTENTS
(continued)
Page
III.
A.
The Common-Law Immunities
Underpinning Qualified Immunity
Did Not Extend To Prison Officials .. 21
B.
This Court’s Decision In Procunier
Ignores The Controlling CommonLaw Rules And Should Be
Overruled ........................................... 25
C.
Other Statutory Developments
Undermine The Judge-Made Policy
Rationale For Qualified Immunity ... 29
THIS CASE IS AN IDEAL VEHICLE FOR
RECONSIDERING THE SCOPE OF
QUALIFIED IMMUNITY ............................ 31
CONCLUSION ........................................................ 34
APPENDIX A: Opinion of the United States
Court of Appeals for the Eleventh Circuit
(Nov. 9, 2022) ..................................................... 1a
APPENDIX B: Order from the District Court
for the Southern District of Florida (Apr.
26, 2021) ........................................................... 16a
APPENDIX C: Order Denying Rehearing
(Mar. 1, 2023) ................................................... 33a
APPENDIX D: Relevant Statutory Provision ...... 34a
v
TABLE OF AUTHORITIES
Page(s)
CASES
Amy v. Desmoines Cnty. Supervisors,
78 U.S. (11 Wall.) 136 (1870)............................. 25
Anderson v. Creighton,
483 U.S. 635 (1987) ............................................ 29
Asher v. Cabell,
50 F. 818 (5th Cir. 1892).................................... 24
Barr v. Matteo,
360 U.S. 564 (1959) ............................................ 23
Berkshire v. Dahl,
928 F.3d 520 (6th Cir. 2019).............................. 20
Bilal v. Geo Care, LLC,
981 F.3d 903 (11th Cir. 2020).......................11, 13
Bonner v. City of Prichard, Ala.,
661 F.2d 1206 (11th Cir. 1981).......................... 10
Brooks v. Warden,
800 F.3d 1295 (11th Cir. 2015)...........8, 11, 12, 13
Browder v. City of Albuquerque,
787 F.3d 1076 (10th Cir. 2015).......................... 18
Buckley v. Fitzsimmons,
509 U.S. 259 (1993) ............................................ 22
Canupp v. Paul,
716 F. App’x 836 (11th Cir. 2017) ..................... 12
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ............................................ 30
Chandler v. Baird,
926 F.2d 1057 (11th Cir. 1991)...............10, 11, 12
Commonwealth v. Stockton,
21 Ky. (5 T.B. Mon.) 192 (1827) ........................ 24
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Crawford-El v. Britton,
523 U.S. 574 (1998) .......................................29, 30
Dabney v. Taliaferro,
25 Va. (4 Rand.) 256 (1826) ............................... 24
Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228 (2022)........................................ 29
Farmer v. Brennan,
511 U.S. 825 (1994) ............................................ 32
Fruit v. Norris,
905 F.2d 1147 (8th Cir. 1990)............................ 13
Goebert v. Lee Cnty.,
510 F.3d 1312 (11th Cir. 2007).......................... 32
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ............................................ 29
Hoggard v. Rhodes,
141 S. Ct. 2421 (2021)........................................ 23
Hope v. Pelzer,
536 U.S. 730 (2002) .............................. 8-10, 17-19
Imbler v. Pachtman,
424 U.S. 409 (1976) .......................................23, 25
Inmates of Occoquan v. Barry,
844 F.2d 828 (D.C. Cir. 1988) ............................ 15
Johnson v. Pelker,
891 F.2d 136 (7th Cir. 1989).............................. 15
Keenan v. Hall,
83 F.3d 1083 (9th Cir. 1996).............................. 14
Knowlton v. Bartlett,
18 Mass. (1 Pick.) 271 (1822)............................. 24
Malley v. Briggs,
475 U.S. 335 (1986) .......................................21, 22
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Matthis v. Pollard,
3 Ga. 1 (1847) ..................................................... 24
McCord v. Maggio,
927 F.2d 844 (5th Cir. 1991).............................. 15
McCoy v. Alamu,
141 S. Ct. 1364 (2021).................................... 8, 18
Mullenix v. Luna,
577 U.S. 7 (2015) .................................................. 4
N.Y. State Rifle & Pistol Ass’n v. Bruen,
142 S. Ct. 2111 (2022)........................................ 28
Novak v. Beto,
453 F.2d 661 (5th Cir. 1971).............................. 10
Pearson v. Callahan,
555 U.S. 223 (2009) ............................................ 31
Perkins v. Reed,
14 Ala. 536 (1848) .............................................. 24
Perrine v. Planchard,
15 La. Ann 133 (1860) ....................................... 24
Peters v. White,
53 S.W. 726 (Tenn. 1899)................................... 24
Pierson v. Ray,
386 U.S. 547 (1967) ...................................2, 21, 22
Procunier v. Navarette,
434 U.S. 555 (1978) .......................... 2-3, 21, 25-26
Reichle v. Howards,
566 U.S. 658 (2012) ............................................ 28
Richardson v. McKnight,
521 U.S. 399 (1997) .............................3, 23, 26, 28
Rogers v. Jarrett,
63 F.4th 971 (5th Cir. 2023) .............................. 22
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S. 364 (2009) ............................................ 17
Saucier v. Katz,
533 U.S. 194 (2001) ............................................ 29
Scheuer v. Rhodes,
416 U.S. 232 (1974) ............................................ 23
Shannon v. Graves,
257 F.3d 1164 (10th Cir. 2001).......................... 14
South v. State of Maryland,
59 U.S. (18 How.) 396 (1855) ............................. 25
Surprenant v. Rivas,
424 F.3d 5 (1st Cir. 2005) .................................. 14
Taylor v. Riojas,
141 S. Ct. 52 (2020)............................... 4, 8, 17-19
Tolan v. Cotton,
572 U.S. 650 (2014) ...................................4, 15, 31
Tower v. Glover,
467 U.S. 914 (1984) ............................................ 28
United States v. Lanier,
520 U.S. 259 (1997) ........................................ 9, 17
Weathers v. Loumakis,
742 F. App’x 332 (9th Cir. 2018) ....................... 20
Wilkins v. Gaddy,
559 U.S. 34 (2010) ................................................ 4
Willey v. Kirkpatrick,
801 F.3d 51 (2d Cir. 2015) ................................. 14
Williams v. Griffin,
952 F.2d 820 (4th Cir. 1991).............................. 15
Wood v. Strickland,
420 U.S. 308 (1975) ............................................ 23
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
Wyatt v. Cole,
504 U.S. 158 (1992) .......................................28, 30
Young v. Quinlan,
960 F.2d 351 (3d Cir. 1992) ............................... 14
Ziglar v. Abbasi,
582 U.S. 120 (2017) ...............................3, 5, 27, 28
STATUTES
28 U.S.C. § 1254(1).................................................... 1
42 U.S.C. § 1997e .................................................... 29
Ku Klux Klan Act, Pub. L. No. 42-22, ch. 22,
§ 1, 17 Stat. 13 (1871) .................................... 1, 22
Prison Litigation Reform Act, Pub. L. No.
104-134, tit. viii, 110 Stat. 1321-66 (1996) ....... 29
OTHER AUTHORITIES
Alexander A. Reinert,
Qualified Immunity’s Flawed Foundation,
111 Cal. L. Rev. 201 (2023) ............................... 22
Thomas M. Cooley,
Treatise on the Law of Torts or the
Wrongs Which Arise Independent of
Contract 381 (1880) ......................................23, 24
PETITION FOR A WRIT OF CERTIORARI
Lynn Hamlet respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals is unpublished
but available at 2022 WL 16827438 and reprinted in
the Appendix to the Petition (“App.”) at 1a-15a. The
decision of the district court is unpublished but available at 2021 WL 2384516 and reprinted at App. 16a33a. The unpublished order of the court of appeals
denying rehearing en banc is reprinted at App. 34a.
JURISDICTION
The court of appeals entered its judgment on November 9, 2022, App. 1a, and denied a timely petition
for rehearing en banc on March 1, 2023, id. at 34a.
On May 5, 2023, Justice Thomas extended the time to
file a petition for a writ of certiorari to and including
June 29, 2023. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
The Eighth Amendment to the U.S. Constitution
provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Relevant statutory provision of the Ku Klux Klan
Act of 1871, Pub. L. No. 42-22, § 1, 17 Stat. 13., is reproduced at App. 35a.
2
INTRODUCTION
This petition presents two important questions
about the nature and scope of the “qualified immunity” doctrine this Court began reading into the text of
42 U.S.C. § 1983 some 60 years ago.
The Court has always acknowledged that § 1983
does not expressly provide state officers who violate
federal rights any immunity from liability for their
conduct. The Court’s early qualified immunity decisions reconciled the doctrine with the statute’s text on
the premise that certain immunities were deeply
rooted in the common law when § 1983 was enacted,
and that if Congress had intended to override those
settled immunities, it would have said so expressly.
See, e.g., Pierson v. Ray, 386 U.S. 547, 554-55 (1967).
The initial decisions in this line remained faithful to
this principle, allowing state officials to claim immunity from liability for allegedly unlawful conduct under
§ 1983 only to the extent similar state officials could
claim immunity for similar liability at common law.
The Court’s decisions first deviated from this principle in the context of public prison guards—the precise context in which this case arises. In Procunier v.
Navarette, 434 U.S. 555 (1978), the Court held that
prison guards who violate federally-protected rights
may be immune from § 1983 liability, but without any
showing that similarly situated officials could claim
similar immunity at common law. The Court instead
adopted a new, radically broader immunity doctrine—all public employees are immune from liability
for violating a federal right, unless the right at issue
was already “clearly established.” Id. at 562. The
Court did not purport to ground this theory in the
3
common law, which recognized no such general protection for public officials who commit wrongful acts.
Rather, the Court extended immunity to all public
employees for a mix of purely policy-based reasons related to encouraging public service and promoting efficient government operations. Id.; see Richardson v.
McKnight, 521 U.S. 399, 407-08 (1997) (reciting policy
bases for immunizing public employees from liability
for violating federal rights). “Truth to tell,” Justice
Scalia later objected, Procunier “did not trouble itself
with history,” but instead “simply set forth a policy
prescription.” Richardson, 521 U.S. at 415-16 (Scalia,
J., dissenting). And as Justice Thomas has observed
more recently, the Court’s decisions since Procunier
have “completely reformulated qualified immunity
along principles not at all embodied in the common
law,” instead emphasizing “precisely the sort of freewheeling policy choices” the Court has so insistently
“disclaimed the power to make” in other contexts.
Ziglar v. Abbasi, 582 U.S. 120, 158-60 (2017)
(Thomas, J., concurring) (cleaned up).
This case illustrates the consequences of the
Court’s doctrinal shift away from the common law.
Applying an overly rigid formulation of the Court’s
current “clearly established right” standard, the Eleventh Circuit extended immunity in the most ghoulish
of circumstances to a prison guard who never would
have received immunity from liability for similar conduct at common law. Officer Hoxie forced Petitioner
Lynn Hamlet, a diabetic with open wounds, to remain
in a flooded shower contaminated with feces and
urine from another person, and then prevented Hamlet from cleaning the human filth from his wounds for
4
days. Infection inevitably ensued, and prison officials
rushed him to the hospital to undergo life-saving
heart surgery. Wrongly assuming that a right is not
“clearly established” unless a specific circuit precedent had already found liability in essentially the
same circumstances, the Eleventh Circuit held that
Officer Hoxie could not be held liable for his obviously
unlawful conduct because, in the court’s view, his conduct was less egregious than the conduct in the only
other precedent the court considered.
That holding raises two issues worthy of this
Court’s review. The first assumes that the ahistorical, policy-based “clearly established right” standard
requires the kind of rigid, exacting comparison to
prior precedent the Eleventh Circuit pursued below.
The Court’s cases require no such thing. And by demanding such a precise match here, the Eleventh Circuit extended qualified immunity to shameful, inhumane conduct that obviously violated Hamlet’s
Eighth Amendment right, in direct conflict with cases
from this Court and other circuits addressing substantially similar conduct. Indeed, the violation here
is obvious enough to warrant summary reversal, as
this Court has done in other qualified immunity cases
where lower courts refused to apply settled law. See
Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020); Tolan v.
Cotton, 572 U.S. 650, 655-60 (2014); Wilkins v. Gaddy,
559 U.S. 34 (2010); see also Mullenix v. Luna, 577 U.S.
7, 12 (2015) (summarily reversing a lower court for
advancing a proposition when “this Court ha[d] previously considered—and rejected—almost that exact
formulation of the qualified immunity question”).
5
The second question is more fundamental. As
summarized above and as further elaborated in the
body of this petition, this Court’s qualified-immunity
jurisprudence took a wrong turn in Procunier away
from the text of § 1983 and the common-law immunities the text was presumed to embody, and toward an
explicitly policy-based approach to determining when
a state official should be immune from liability for violating federally protected rights. The inherently
subjective, mileage-varies “clearly established right”
standard has led directly to the conflict and confusion
illustrated by this case. It is time to restore § 1983
immunity to its objective, common-law foundation.
Justice Thomas has already well-summarized the
case for certiorari on this issue: “Until we shift the focus of our inquiry to whether immunity existed at
common law, we will continue to substitute our own
policy preferences for the mandates of Congress. In
an appropriate case, we should reconsider our qualified immunity jurisprudence.” Ziglar, 582 U.S. at 160
(Thomas, J., concurring). Now is the time, and this is
the case.
STATEMENT OF THE CASE
Respondents Locked Lynn Hamlet, an Elderly
Man with Diabetes and Open Wounds, Inside a
Flooded Shower with Another Person’s Excrement and Subsequently Disallowed Him from
Showering for One Week
At the time of the events giving rise to this suit,
Hamlet was incarcerated in Martin Correctional Institution, and respondent Officer Brandon Hoxie was
6
an official at Martin Correctional Institution. App.
17a.
Hamlet is an elderly man with physical impairments resulting from diabetes, which include open
wounds on his ankles. Those bright red sores were on
full display when Officer Hoxie escorted him to and
from a handicap shower in nothing but his underwear. App. 2a-4a. As the locked, cramped shower
filled with water, Hamlet discovered that a prior occupant had defecated and urinated inside the enclosure. Id. at 4a.1 Unable to avoid the excrement because the shower was flooded to his ankles, Hamlet
notified Officer Hoxie and asked to be released. Id.
Rather than letting Hamlet out of the excrementfilled shower stall, Officer Hoxie pushed him back inside it, trapping him there for 40 minutes in ankledeep standing water, as excrement and urine seeped
into Hamlet’s open wounds. Id.
While Hamlet was trapped in the shower, Officer
Hoxie removed the sheets and clean clothes from his
cell. Id. When Officer Hoxie finally escorted Hamlet
to his ransacked cell, Officer Hoxie left Hamlet nothing but toilet water in his cell and his bare hands to
clean his wounds. Id. But he “wasn’t successful. [He]
couldn’t get [the feces] out. It was stuck there.” ECF
112-1 at 15; App. 18a. Officer Hoxie stood and
watched as Hamlet tried cleaning his wounds in his
toilet, with no success. ECF 142 at 9. After watching
Hamlet’s feeble attempts to remove the feces from his
1 According to Officer Hoxie, “it is undisputed that Plaintiff
claims that” prison officials trapped the prior occupant “in a
shower stall for 14 hours with no toilet break.” ECF 112 at 3 n.2.
7
body, Officer Hoxie forbade officials from allowing
Hamlet to shower for the next week. App. 4a.
As bacteria from the feces and urine spread
through Hamlet’s body, he became increasingly sick
and was eventually hospitalized. Id.; ECF 112-1 at
18; App. 18a. He was “so ill that he beg[g]ed and
prayed to die.” ECF 10 at 10. The bacterial infection
destroyed Hamlet’s heart valve, requiring emergency
heart surgery to save his life. App. 18a, 5a. In total,
he spent months in the hospital and continues to suffer serious complications years later. ECF 115 at 23;
App. 5a.
Hamlet Files Suit Challenging the Constitutionality of Respondents’ Conduct, and The District
Court Rules in Respondents’ Favor
While hospitalized and proceeding pro se, Hamlet
filed suit against Respondents under 42 U.S.C.
§ 1983, alleging, as relevant here, that Officer Hoxie
violated the Eighth Amendment by confining him to
an excrement-filled, backed-up shower stall while he
had visible, open wounds on his ankles, and barring
him from cleaning the feces from his sores for a week,
until he developed a near-fatal infection that required
heart surgery. App. 5a. The district court granted
Officer Hoxie’s motion for summary judgment, finding
no Eighth Amendment violation. App. 28a.
With the assistance of pro bono counsel, Hamlet
appealed, and the Eleventh Circuit affirmed. App. 6a7a. The court granted qualified immunity to Officer
Hoxie, ignoring overwhelming case law from this
Court, its own circuit, and multiple other circuits
holding both that (1) forcing an incarcerated person to
8
endure gratuitous contact with feces is unconstitutional and (2) qualified immunity is unavailable even
in novel factual situations if the violation is obvious.
App. 9a, 11a n.6, 12a. The court also dramatically
misconstrued the record, cherry-picking facts that
were favorable to Officer Hoxie and ignoring material
facts supporting Hamlet, the non-movant. It then relied on those facts in a strict side-by-side comparison
with a single in-circuit case, Brooks v. Warden, 800
F.3d 1295 (11th Cir. 2015). Because the (misconstrued) facts of Hamlet’s case were not identical to
Brooks, the Eleventh Circuit held that prior case law
did not clearly establish the unlawfulness of Officer
Hoxie’s conduct.
The court declined to consider whether the violation here was so obviously unlawful that any reasonable officer would have known it was illegal—even
though Hamlet specifically briefed the issue, pointing
out that this Court has recently reaffirmed this “obviousness” doctrine multiple times. See McCoy v. Alamu, 141 S. Ct. 1364 (2021) (mem.); Taylor, 141 S. Ct.
at 53-54; Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Subsequently, the Eleventh Circuit denied Hamlet’s
petition for rehearing. App. 34a.
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW CONFLICTS WITH
PRECEDENTS OF THIS COURT AND
OTHER CIRCUITS
Under the current version of the judge-made qualified immunity doctrine, a state officer can be liable
for depriving an individual of federally-protected
rights only if the officer’s conduct violated a legal rule
9
that was “clearly established” when the conduct occurred. According to this Court’s precedents, a law
can be “clearly established” for purposes of qualified
immunity in essentially two ways. First, a prohibition on official conduct can be set forth in precedent
with “materially similar” or “fundamentally similar”
facts. Hope, 536 U.S. at 741. Second, a legal prohibition “may apply with obvious clarity to the specific
conduct in question, even though the very action in
question has not previously been held unlawful.” Id.
(cleaned up) (quoting United States v. Lanier, 520
U.S. 259, 271 (1997)).
The Eleventh Circuit held that Officer Hoxie was
entitled to qualified immunity because he did not violate “clearly established” law when he trapped Hamlet in a flooded, feces-contaminated shower and deprived him of means to remove feces from his wounds
for many days thereafter. According to the Eleventh
Circuit, the facts of this case were not similar enough
to any existing precedents to put Officer Hoxie on notice that his treatment of Hamlet violated the Eighth
Amendment. App. 9a, 11a n.6, 12a. That analysis
contravenes the precedents of this Court and other
circuits in two ways, each of which independently justifies review and reversal of the decision below.
A. The Decision Below Conflicts With Many
Decisions Clearly Establishing That Unnecessary And Prolonged Exposure To Feces Violates The Eighth Amendment
Before Officer Hoxie forced Hamlet to soak his
open wounds in feces-contaminated water and forbade him from cleaning the excrement out of his sores
for a week, every circuit with a prison population had
10
held that forcing incarcerated persons to endure gratuitous, close contact with human feces violates the
objective prong of the Eighth Amendment. The Eleventh Circuit’s own decisions clearly established the
same rule. In this case, however, the Eleventh Circuit
escaped application of its precedents by applying a
rigid, overly exacting standard of comparisons to prior
cases. Its resulting holding that Officer Hoxie’s conduct did not violate a clearly established right creates
a direct conflict among the circuits as to the existence
and nature of that right.
This Court has made clear that when determining
whether an officer’s conduct violated a legal rule
clearly established by existing precedents, a court
should not look for a precise fit with the facts of prior
cases. An existing precedent need only involve “materially similar” or “fundamentally similar” facts.
Hope, 536 U.S. at 741. Multiple precedents from the
Eleventh Circuit and elsewhere satisfied this standard and provided Officer Hoxie notice that his conduct
violated the Eighth Amendment.
More than 50 years ago, the Fifth Circuit (predecessor to the Eleventh) held that the Eighth Amendment prohibits keeping an incarcerated person in conditions lacking “basic elements of hygiene.” Novak v.
Beto, 453 F.2d 661, 665 (5th Cir. 1971).2 Two decades
later, the court applied that rule in Chandler v. Baird,
926 F.2d 1057 (11th Cir. 1991)—denying summary
2 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) (adopting as Eleventh Circuit precedent all
decisions of the former Fifth Circuit issued before October 1,
1981).
11
judgment to prison officials who denied the plaintiff
toilet paper, running water, linens, or other items to
clean himself, explaining that “the right of a prisoner
not to be confined . . . in conditions lacking basic sanitation was well established.” Id. at 1063, 1066. More
recently, in Brooks v. Warden, 800 F.3d 1295 (11th
Cir. 2015), the Eleventh Circuit held that confining
an incarcerated person to a hospital bed for two days
in a jumpsuit filled with his own waste was a clearly
established Eighth Amendment violation. Id. at
1298. According to Brooks, “the health risks of prolonged exposure to human excrement are obvious”
and therefore objectively present “a substantial risk
of serious harm” sufficient to establish an Eighth
Amendment violation. Id. at 1305.
The Brooks court recognized that conduct need not
be as heinous as in Brooks itself to violate clearly established law. To the contrary, the court observed,
the facts there were a “rare case of obvious clarity”
with facts “worse than those found in the governing
caselaw.” Id. at 1307, 1305 (alterations and quotations omitted). Years later, the Eleventh Circuit confirmed that Brooks is more “extreme” than “other situations courts [have] encountered.” Bilal v. Geo Care,
LLC, 981 F.3d 903, 915 (11th Cir. 2020). Brooks,
then, is the current high-water mark for egregiousness, not a constitutional floor that compels qualified
immunity whenever the facts are less egregious.
The Eleventh Circuit, however, applied an overly
exacting standard of precision and held that Novak,
Baird, and Brooks did not provide adequate notice because, in the court’s view, Hamlet experienced a less
egregious exposure to feces than the plaintiffs in those
12
cases. App. 11a, n.6. That asserted comparison is not
just overly exacting—it is demonstrably false. Baird
did not allege contact with feces at all—only proximity to filth and the deprivation of certain cleaning
tools. 926 F.2d at 1063. And as Brooks recognized,
Novak relied on cases holding that mere “close proximity with excrement” sufficed to state an Eighth
Amendment claim. Brooks, 800 F.3d at 1304 (emphasis added). Novak and Baird thus clearly established
that the Eighth Amendment forbids forcing people to
endure more than de minimis proximity to feces. See
also Canupp v. Paul, 716 F. App’x 836, 841 (11th Cir.
2017) (“This Court’s precedent establishes that an inmate’s prolonged exposure to human waste ‘sufficiently allege[s] a substantial risk of serious harm.’”
(quoting Brooks, 800 F.3d at 1305)).
Instead of properly applying Novak and Baird, the
Eleventh Circuit focused almost exclusively on
Brooks, but its analysis inverted the proper inquiry.
Rather than treating Brooks as one example of a clear
Eighth Amendment violation—as Brooks itself instructed, see supra at 11—the court treated the facts
in Brooks as if they established an absolute threshold
for qualified immunity, i.e., any conduct arguably less
egregious would necessarily qualify for immunity.
But even accepting for the moment the false premise
that the conduct in Brooks was worse than the violation here,3 the legal question was not whether
3 In fact, Hamlet’s experience was in important ways worse than
that of the Brooks plaintiff. Whereas the Brooks plaintiff sat in
his own excrement for two days, Hamlet was unable to wash off
the feces for an entire week. The Brooks plaintiff endured feces
on his skin; Hamlet’s ordeal left feces festering in open wounds.
13
Hamlet’s experience reached the same exact threshold of egregiousness in Brooks. It was whether relevant prior precedents together provided adequate notice that Hamlet’s conditions violated the Eighth
Amendment.
Brooks certainly is not the only case establishing
the unconstitutionality of contact with human feces.
It is just one particularly horrific example. In addition to Novak and Baird, many cases from other circuits—including several discussed in both Brooks and
Bilal—have held that the “deprivation of basic sanitary conditions,” including “exposure to human
waste” without prompt remediation, “can state a constitutional violation.” Bilal, 981 F.3d at 915 (quoting
Brooks, 800 F.3d at 1304 (collecting cases)).
As far back as 1990, the Eighth Circuit allowed an
Eighth Amendment claim to proceed where the plaintiffs were asked to clean “a wet-well portion of the
prison’s raw sewage lift-pump station,” which would
have put them in close proximity to raw sewage for up
to 10 minutes at a time. Fruit v. Norris, 905 F.2d
1147, 1148-49 (8th Cir. 1990). It emphasized that
“courts have been especially cautious about condoning
conditions that include an inmate’s proximity to human waste” and that “common sense” suggested
prison officers “should have had knowledge that unprotected contact with human waste could cause disease.” Id. at 1150-51 (collecting cases).
Unlike the Brooks plaintiff, Hamlet was exposed to someone
else’s excrement. And while the Brooks plaintiff “did not allege
any physical injury,” 800 F.3d at 1307, Hamlet suffered lifethreatening injuries from his exposure.
14
In Shannon v. Graves, 257 F.3d 1164 (10th Cir.
2001), the Tenth Circuit concluded that blankets and
clothing that had been contaminated with sewage
“with a consequent risk to human health” could satisfy the objective prong of an Eighth Amendment
claim, even though the items were cleaned in a commercial washer before being provided to incarcerated
persons. Id. at 1169. In reaching this conclusion, the
court found it “obvious” that “exposure to the human
waste of others carries a significant risk of contracting
infectious diseases such as Hepatitis A, shigella, and
others.” Id. at 1168.
In Willey v. Kirkpatrick, 801 F.3d 51 (2d Cir.
2015), the Second Circuit went farther, vacating summary judgment where prison officials forced someone
to smell—not touch—their own waste. Id. at 55. It is
unconstitutional, the court held, to “restrict[] the airflow to [the plaintiff’s] small cell and then incapacitate[] his toilet, so that he was reduced to breathing a
miasma of his own accumulating waste.” Id. The
court emphasized that the Eighth Amendment imposes no “bright-line durational requirement for a viable unsanitary-conditions claim.” Id. at 68.
The list goes on. See Surprenant v. Rivas, 424 F.3d
5, 20-21 (1st Cir. 2005) (finding “the combination of
near-continuous confinement, denial of exercise time,
water, and items of personal hygiene,” along with “exposure to bodily waste . . . posed an intolerable health
and safety hazard”); Keenan v. Hall, 83 F.3d 1083,
1090 (9th Cir. 1996) (remanding for trial where plaintiff was denied toothbrushes and soap, while cell was
“saturated with the fumes of feces, urine, and vomit”);
Young v. Quinlan, 960 F.2d 351, 355, 357, 365 (3d Cir.
15
1992) (forcing plaintiff to defecate and urinate on cell
floor and depriving him of toilet paper, showers,
drinking water, and ability to wash hands or empty
urinal for four days is “a violation of the basic concepts
of humanity and decency that are at the core of the
protections afforded by the Eighth Amendment”); Williams v. Griffin, 952 F.2d 820, 825 (4th Cir. 1991) (reversing summary judgment, where unsanitary conditions included urine-soaked toilets, sewage on floors,
and deprivation of blankets); McCord v. Maggio, 927
F.2d 844, 848 (5th Cir. 1991) (plaintiff sleeping on
“mattress in filthy water contaminated with human
waste, unquestionably a health hazard” and the “environment was so unhygienic as to amount to a clear
violation of the Eighth Amendment”); Johnson v.
Pelker, 891 F.2d 136, 139-40 (7th Cir. 1989) (vacating
summary judgment where prison officials placed
plaintiff in cell for three days, “without running water
and in which feces [we]re smeared on the walls[,]
while ignoring his requests for cleaning supplies” and
water); c.f. Inmates of Occoquan v. Barry, 844 F.2d
828, 836 (D.C. Cir. 1988) (recognizing “deprivations of
essential food, medical care, or sanitation” as protected by the Eighth Amendment) (emphasis added).4
4 In addition to making an overly precise comparison to other
cases, the Eleventh Circuit’s decision seriously misstates the
summary judgment factual record, which is far worse than the
decision suggests. See Tolan, 572 U.S. at 657 (summarily reversing appellate court for granting qualified immunity in § 1983
case without viewing facts in light most favorable to non-movant). According to the Eleventh Circuit, “[n]othing in this record suggests that Hoxie . . . even knew that he had wounds on
his ankles, much less that he had feces stuck to his wounds for
days after his shower.” App. 12a. Wrong. The record shows that
16
In short, a mountain of case law compels the conclusion that when Officer Hoxie forced Hamlet to marinate his open wounds in another person’s feces and
keep that feces on his body and in his wounds for a
full week, Officer Hoxie violated Hamlet’s clearly established right to be free from gratuitous and prolonged contact with feces. The Eleventh Circuit improperly focused on just one case—to the exclusion of
dozens of others—and wrongly concluded that Officer
Hoxie’s conduct did not violate “clearly established”
law merely because he forced Hamlet to endure contact with another human’s feces in a context different
from that one case.
Before the Eleventh Circuit’s decision, the circuits
were united in holding that the Eighth Amendment
bars more than de minimis proximity and contact
with feces without prompt remediation. The Eleventh
Circuit broke with other circuits in declaring that
forcing someone to soak their open wounds in another
human’s feces and allowing that feces to fester in
those wounds until it causes life-threatening illness
violates no clearly established right. This Court
should grant review—or summarily reverse—to restore uniformity among the lower courts.
Officer Hoxie stood and watched as Hamlet unsuccessfully
sought to clean his wounds after being removed from the shower.
ECF 142 at 9. Further, after watching that failed attempt, Officer Hoxie forbade officials from allowing Hamlet to shower for
the next week. App. 4a.
17
B. The Decision Below Conflicts With This
Court’s Decisions In Lanier, Hope, And
Taylor Establishing The “Obvious Violation” Doctrine
In addition to applying an overly exacting and
rigid standard of case similarity to determine whether
a rule is clearly established, the Eleventh Circuit did
not even consider the “obvious violation” doctrine this
Court elaborated in Hope, Taylor, and other decisions.
Had the court below applied and followed that doctrine as Hamlet urged, it would have been compelled
to reverse the order granting summary judgment for
respondents.
The obvious violation standard recognizes that “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.”
Hope, 536 U.S. at 741; see Taylor, 141 S. Ct. at 53-54
(citing Hope, 536 U.S. at 741) (per curiam). For example, there may be no precedent holding a state official liable for “selling foster children into slavery,”
but “it does not follow that if such a case arose, the
officials would be immune from damages” under
§ 1983.” Lanier, 520 U.S. at 271 (quotation omitted).
The obviousness principle is essential to ensuring
that the most egregiously unconstitutional conduct
does not escape accountability. After all, the more
egregious the conduct, the less likely another official
has engaged in it—and, therefore, the less likely it is
that an on-point factual precedent serves as clearly
established law. See Safford Unified Sch. Dist. No. 1
v. Redding, 557 U.S. 364, 377-78 (2009) (“[O]utrageous conduct obviously will be unconstitutional, this
being the reason . . . that the easiest cases don’t even
18
arise.” (cleaned up)). As then-Judge Gorsuch observed, “it would be remarkable if the most obviously
unconstitutional conduct should be the most immune
from liability only because it is so flagrantly unlawful
that few dare its attempt.” Browder v. City of Albuquerque, 787 F.3d 1076, 1082-83 (10th Cir. 2015).
In the last few years, this Court has repeatedly reaffirmed that obviously illegal conduct can defeat
qualified immunity. See Taylor, 141 S. Ct. at 53-54;
McCoy v. Alamu, 141 S. Ct. 1364 (2021) (mem.). The
decision in Taylor is especially illustrative, as it involved circumstances strikingly similar to those here.
The plaintiff in Taylor was left naked for six days
in two filthy cells; the first covered in feces from previous residents, and the second contaminated with a
pool of sewage overflowing from a clogged drain. 141
S. Ct. at 52. The Fifth Circuit applied qualified immunity on the theory that, although existing circuit
precedent recognized the unconstitutionality of forcing people to live in human waste, those cases involved longer periods of confinement and therefore
did not clearly establish a constitutional violation under the precise circumstances presented there.
Chastising the Fifth Circuit for failing to recognize
that a “general constitutional rule already identified
in the decisional law may apply with obvious clarity
to the specific conduct in question,” Taylor, 141 S. Ct.
at 53-54 (quoting Hope, 536 U.S. at 741), this Court
reversed and rejected qualified immunity. Instead of
comparing the case to other precedents, the Court
simply ruled that “no reasonable correctional officer
could have concluded that, under the extreme circumstances of this case, it was constitutionally
19
permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”
Id. at 53. The Court re-emphasized the rule set forth
in Lanier that the “obvious cruelty inherent in putting
[incarcerated persons] in certain wantonly degrading
and dangerous situations” is itself enough to “provide[] officers with some notice that their alleged conduct violates the Eighth Amendment.” Id. at 54
(cleaned up); see, e.g., Hope, 536 U.S. at 742 (reversing
grant of qualified immunity, warning court’s decision
exemplified the “danger of a rigid, overreliance on factual similarity”).
The same rule applies here. No reasonable officer
could believe the law permitted trapping Hamlet in
an excrement-contaminated, backed-up shower and
forcing him to endure a week with feces festering in
his open wounds—until he, predictably, developed a
life-threatening infection. As in Taylor, there is no
evidence that the conduct was “compelled by necessity
or exigency.” Taylor, 141 S. Ct. at 54. And as in Taylor, the record reveals no “reason to suspect that the
conditions . . . could not have been mitigated.” Id. In
fact, the record shows Officer Hoxie actively took
steps to aggravate the unsanitary conditions by taking away all clothes and clean sheets that Hamlet
could have used to wipe the feces out of his wounds.
App. 4a. And Officer Hoxie forbidding Hamlet from
further showers after he watched him attempt cleaning his wounds with toilet water, suggests that, like
the defendants in Taylor, Officer Hoxie at least aggravated Hamlet’s suffering. Taylor, 141 S. Ct. at 54.
Other federal appellate courts have been willing to
declare gratuitous contact with feces—especially the
20
feces of another person—obviously unconstitutional.
For example, the Sixth Circuit held that the obvious
unconstitutionality of leaving the plaintiff “to lay in
his own urine and feces for several hours” provided a
prison official with “fair warning” that his conduct violated the Eighth Amendment. Berkshire v. Dahl,
928 F.3d 520, 537-38 (6th Cir. 2019). Similarly, the
Ninth Circuit held in Weathers v. Loumakis, 742 F.
App’x 332 (9th Cir. 2018), that forcing an incarcerated
plaintiff to clean sewage overflow from a malfunctioning toilet with only latex gloves as protection was
clearly unconstitutional, even though it had “never
squarely confronted a case with facts precisely like
these.” Id. at 333-34.
The Eleventh Circuit’s refusal to recognize that
Officer Hoxie’s conduct was obviously unconstitutional conflicts with these circuit precedents and with
this Court’s clear direction in Taylor, Hope, and other
decisions. There was no need for the Eleventh Circuit
to scour the casebooks for a specific, on-point precedent to hold that Officer Hoxie could not lawfully force
Hamlet to soak his open sores in excrement and then
endure a week with someone else’s feces festering in
his wounds. This Court should grant review to clarify
and confirm the applicability of the obvious violation
doctrine or otherwise summarily reverse the Eleventh
Circuit’s decision.
21
II. APPLYING QUALIFIED IMMUNITY TO OFFICER HOXIE’S CONDUCT CONTRAVENES THE TEXT AND PURPOSE OF
§ 1983 AND THE COMMON-LAW ROOTS OF
QUALIFIED IMMUNITY
Even more fundamentally, applying qualified immunity to the conduct in this case contravenes the
very foundation of the doctrine. Although § 1983’s
plain text creates no exemptions or immunities, the
Court’s original qualified immunity precedents rested
on the premise that the common law recognized certain specific immunities for government officers, and
that if Congress intended to override those immunities, it would have done so expressly. At common law,
however, prison officials were afforded no immunity
from liability for unlawful acts causing injury to persons in their custody. This Court’s decision in Procunier v. Navarette, 434 U.S. 555 (1978), extending qualified immunity to prison officers wrongly ignores that
history and should be overruled. Under a correct application of common-law immunities, Officer Hoxie is
not entitled to immunity from § 1983 liability for his
conduct.
A. The Common-Law Immunities Underpinning Qualified Immunity Did Not Extend
To Prison Officials
Section 1983 “on its face admits of no immunities.”
Malley v. Briggs, 475 U.S. 335, 339-40 (1986). Starting with Pierson v. Ray, 386 U.S. 547 (1967), however,
the Court began reading a qualified immunity defense
into the statute, on the specific ground that “[c]ertain
immunities were so well established in 1871” that it
was appropriate to “presume that Congress would
22
have specifically so provided had it wished to abolish”
them.5 Buckley v. Fitzsimmons, 509 U.S. 259, 268
(1993); see Pierson, 386 U.S. at 554-55 (because common-law “immunity of judges for acts within the judicial role” was “well established,” the Court could “presume that Congress would have specifically so provided had it wished to abolish the doctrine”). In early
qualified-immunity cases, then, the doctrine was considered consistent with the statute only when the “official claiming immunity under § 1983 [could] point to
a common-law counterpart to the privilege he assert[ed].” Malley, 475 U.S. at 339-40.
At common law, there was no “one-size-fits-all doctrine” of immunity that applied broadly “to officers
who exercise a wide range of responsibilities and
5 As originally enacted, the text of section one of chapter twenty
of the Ku Klux Klan Act of 1871, later codified at 42 U.S.C. §
1983, explicitly instructed that its protections were to be applied
“notwithstanding” state laws, “custom, or usage” that might be
invoked as a shield from liability. Ku Klux Klan Act, Pub. L. No.
42-22, ch. 22, § 1, 17 Stat. 13 (1871). But without Congress’s
authorization, the Reviser of Federal Statutes omitted that “Notwithstanding Clause” in publishing the first version of the Revised Statues. Alexander A. Reinert, Qualified Immunity’s
Flawed Foundation, 111 Cal. L. Rev. 201, 235 (2023). The Notwithstanding Clause’s “implications are unambiguous: state law
immunity doctrine, however framed, has no place in Section
1983.” Id. at 236. As Fifth Circuit Judge Willett recently observed, the clause “eras[es] any need for unwritten, gap-filling
implications, importations, or incorporations. Rights-violating
state actors are liable—period—notwithstanding any state law
to the contrary.” Rogers v. Jarrett, 63 F.4th 971, 980 (5th Cir.
2023) (Willett, J., concurring). It is up to this Court to “definitively grapple with § 1983’s enacted text and decide whether it
means what it says—and what, if anything, that means for
§ 1983 immunity jurisprudence.” Id. at 981.
23
functions.” Hoggard v. Rhodes, 141 S. Ct. 2421, 242122 (2021) (Thomas, J., respecting denial of writ of certiorari). Rather, courts analyzed the specific “nature
of the duty” a defendant was performing when deciding whether to confer immunity from suit. Thomas
M. Cooley, Treatise on the Law of Torts or the Wrongs
Which Arise Independent of Contract 381 (1880). In
other words, it was “not the title of his office” that
gave rise to an officer’s immunity, but “the duties with
which the particular officer” is concerned. Barr v.
Matteo, 360 U.S. 564, 573 (1959).
Accordingly, to determine whether a given state
official would receive immunity from analogous liability at common law, the Court’s early qualified-immunity cases required a “considered inquiry into the
immunity historically accorded the relevant official at
common law and the interests behind it.” Imbler v.
Pachtman, 424 U.S. 409, 421 (1976). For example, the
Court recognized qualified immunity for state executive officers in Scheuer v. Rhodes, 416 U.S. 232 (1974),
and school officials in Wood v. Strickland, 420 U.S.
308 (1975), only after examining “the considerations
underlying the nature of the immunity of the respective officials in suits at common law.” Imbler, 424
U.S. at 419. By contrast, the Court denied qualified
immunity to private prison guards in Richardson v.
McKnight, 521 U.S. 399 (1997), because “[h]istory
does not reveal a ‘firmly rooted’ tradition of immunity
applicable to privately employed prison guards.” Id.
at 404 (emphasis added).
Exactly the same is true for publicly-employed
prison guards, too. In fact, suits against sheriffs and
other public prison officials were widely allowed at
24
common law. See, e.g., Commonwealth v. Stockton, 21
Ky. (5 T.B. Mon.) 192, 193 (1827) (“[F]or any illegal
abuse of the process of law, the person injured,
whether party to the process or a stranger, is at liberty to sue the sheriff.”); Perkins v. Reed, 14 Ala. 536,
537-38 (1848) (“It has been so long and often held, as
to become an established rule, that the sheriff is liable
civiliter, for the acts of his deputies, which are done in
the performance of their official duties.”); Knowlton v.
Bartlett, 18 Mass. (1 Pick.) 271, 280 (1822) (same);
Matthis v. Pollard, 3 Ga. 1, 3 (1847) (same); see also
Cooley on Torts at 392-98 (highlighting various actions for which sheriffs or jailers were found civilly liable, including for escapees).
Such authorized suits included those challenging
harmful conditions of confinement, like the conditions
Hamlet challenges here.
See, e.g., Dabney v.
Taliaferro, 25 Va. (4 Rand.) 256, 261, 263 (1826) (affirming judgment against sheriff that created conditions of confinement, which led to frost-bite and disease); Perrine v. Planchard, 15 La. Ann 133, 134-35
(1860) (allowing civil damages against keeper of police jail who “under color of his authority . . . caused
[plaintiff] to be forcibly” whipped, noting that whoever causes damage to another must “repair it”); Peters v. White, 53 S.W. 726, 726 (Tenn. 1899) (allowing
civil damages against superintendent of county workhouse facility who whipped an inmate when authority
was not granted by state workhouse commission, noting an incarcerated person “does not lose all his rights
of protection for his person”); Asher v. Cabell, 50 F.
818, 827 (5th Cir. 1892) (“That a United States marshal may take prisoners into his custody, permit them
25
to be disarmed and shackled, and then negligently
and knowingly deliver them over to incompetent deputies and the known hostility of mobs, without liability for his neglect of duty, is a proposition which we
think cannot be sanctioned.”).6
In short, any “considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it,” Imbler, 424 U.S.
at 421, precludes the extension of qualified immunity
under § 1983 to prison guards like Officer Hoxie, who
were not exempt at common law from liability for conduct causing harm to persons in their custody.
B. This Court’s Decision In Procunier Ignores The Controlling Common-Law
Rules And Should Be Overruled
Despite the clear historical record just discussed,
this Court extended qualified immunity to public
prison officials in Procunier v. Navarette, 434 U.S.
6 The absence of common-law precedents recognizing immunity
for prison guards reflects the “well settled” common-law rule
that no immunity was available for “ministerial act[s].” Amy v.
Desmoines Cnty. Supervisors, 78 U.S. (11 Wall.) 136, 138 (1870).
As this Court observed in 1870, there was at that time “an unbroken current of authorities” holding that “where the law requires absolutely a ministerial act to be done by a public officer,
and he neglects or refuses to do such act, he may be compelled to
respond in damages to the extent of the injury arising from his
conduct.” Id. And it was understood that a sheriff acted “[i]n his
ministerial capacity” when he was “keeper of the county jail, and
answerable for the safe-keeping of prisoners.” South v. State of
Maryland, 59 U.S. (18 How.) 396, 402 (1855). As such, the “history of the law for centuries” reveals that “[a]ctions against the
sheriff for a breach of his ministerial duties . . . are to be found
in almost every book of reports.” Id. at 403.
26
555, 561-562 (1978). Procunier cites no precedents
showing that at common law, sheriffs and other jail
officials were immune from liability analogous to the
Eighth Amendment claims asserted here.
The
Court’s justification instead was that “prison guards
may have enjoyed a kind of immunity defense arising
out of their status as public employees at common
law.” Richardson, 521 U.S. at 405 (emphasis added).
That rationale has no grounding whatsoever in the
original basis for qualified immunity set forth in this
Court’s precedents. None of the Court’s early decisions suggested that all “public employees” were entitled to immunity at common law, and Hamlet is
aware of no common-law precedent supporting such a
categorical rule. As Justice Stevens observed in dissent in Procunier, early qualified immunity cases “insist[ed] that a considered inquiry into the common
law was an essential precondition to the recognition
of the proper immunity for any official,” but those
“limits” were “abandoned” by the majority’s decision.
434 U.S. at 568 (Stevens, J., dissenting). Justice
Scalia was subsequently more critical: “The truth to
tell, Procunier v. Navarette, which established § 1983
immunity for state prison guards, did not trouble itself with history,” but instead “simply set forth a policy prescription.” Richardson, 521 U.S. at 415-16
(Scalia, J., dissenting).
By departing from the common-law basis for qualified immunity, Procunier unmoored the doctrine
from any grounding in § 1983 itself. Absent any historical evidence that prison officials were considered
immune from legal liability for harming incarcerated
persons in their care, it is impossible to presume that
27
Congress intended to incorporate such immunity into
§ 1983 sub silentio. In other words, extending qualified immunity to prison officers not only derogates
historical tradition, but the text and purpose of § 1983
itself. See Ziglar, 582 U.S. at 159 (Thomas, J. concurring) (“Because our analysis is no longer grounded in
the common-law backdrop against which Congress
enacted the 1871 Act, we are no longer engaged in interpreting the intent of Congress in enacting the Act.”
(cleaned up)).
Procunier does not stand alone in that regard.
Multiple members of this Court have acknowledged
that the Court’s decisions have “completely reformulated qualified immunity along principles not at all
embodied in the common law.” Ziglar, 582 U.S. at
158-159 (Thomas, J., concurring) (cleaned up).7 Rather than apply common-law immunities—as required for any faithful adherence to presumed
7 Justice Thomas elaborated the point:
Instead of asking whether the common law in 1871 would
have accorded immunity to an officer for a tort analogous
to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known. . . . We
apply this clearly established standard across the board
and without regard to the precise nature of the various
officials’ duties or the precise character of the particular
rights alleged to have been violated. . . . We have not attempted to locate that standard in the common law as it
existed in 1871, however, and some evidence supports
the conclusion that common-law immunity as it existed
in 1871 looked quite different from our current doctrine.
Id. at 159 (cleaned up).
28
congressional intent—the Court’s decisions “have diverged to a substantial degree from the historical
standards” in favor of the Court’s own assessment of
“the special policy concerns arising from public officials’ exposure to repeated suits.” Wyatt v. Cole, 504
U.S. 158, 170-71 (1992) (Kennedy, J., concurring
(cleaned up)); see Richardson, 521 U.S. at 415-16
(Scalia, J., dissenting).
Qualified immunity doctrine now rests almost entirely on unelected judges’ efforts to “protect[] the balance between vindication of constitutional rights and
government officials’ effective performance of their
duties.” Reichle v. Howards, 566 U.S. 658, 664 (2012);
see Richardson, 521 U.S. at 407-08 (listing various
policy interests subject to balancing). As Justice
Thomas has emphasized, however, the “Constitution
assigns this kind of balancing to Congress, not the
Courts.” Ziglar, 582 U.S. at 160 (Thomas, J., concurring). This Court simply does “not have a license to
establish immunities from § 1983 actions in the interests of what [it] judge[s] to be sound public policy.”
Tower v. Glover, 467 U.S. 914, 922-23 (1984).
Indeed, a doctrine that does not “trouble itself with
history” and instead rests on a judge-made “policy
prescription,” Richardson, 521 U.S. at 415-16 (Scalia,
J., dissenting), is precisely the kind of approach the
Court has sharply denounced in other contexts, see,
e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S.
Ct. 2111, 2126 (2022) (“To justify [a firearm] regulation, the government may not simply posit that the
regulation promotes an important interest. Rather,
the government must demonstrate that the regulation is consistent with this Nation’s historical
29
tradition of firearm regulation.”); Dobbs v. Jackson
Women’s Health Org., 142 S. Ct. 2228, 2248 (2022)
(Courts must forgo “freewheeling judicial policymaking” in favor of “respect for the teachings of history”
(cleaned up)). Continued adherence to an avowedly
ahistorical, policy-based qualified immunity doctrine
is indefensible. Because the common-law history concerning prison officials is so clear, this case is the perfect vehicle for beginning the necessary course correction.
C. Other Statutory Developments Undermine The Judge-Made Policy Rationale
For Qualified Immunity
Another reason the Court should restore its focus
on common-law tradition over freewheeling policymaking is that statutory developments since Procunier have mitigated many of the policy concerns
claimed to justify qualified immunity. In particular,
Congress’ enactment of the Prison Litigation Reform
Act (“PLRA”), Pub. L. No. 104-134, tit. viii, 110 Stat.
1321-66 (1996) (codified in 42 U.S.C. § 1997e), largely
addressed the interest in ensuring “that ‘insubstantial claims’ against government officials” are “resolved prior to discovery and on summary judgment if
possible.” Anderson v. Creighton, 483 U.S. 635, 640
n.2 (1987) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818-819 (1982)); see Saucier v. Katz, 533 U.S. 194
(2001) (stating that when qualified immunity is
sought as a defense it must be ruled on early so that
“the costs and expenses of trial are avoided”). The
PLRA provides prison officials special protections
from suit “that should discourage prisoners from filing claims that are unlikely to succeed.” Crawford-El
30
v. Britton, 523 U.S. 574, 596-97 (1998). These include
provisions that require plaintiffs to exhaust administrative remedies; “authorizes the court on its own motion to dismiss ‘frivolous,’ ‘malicious,’ or meritless actions;” and “denies in forma pauperis status to prisoners with three or more prior ‘strikes’ (dismissals because a filing is frivolous, malicious, or fails to state a
claim . . .) unless the prisoner is ‘under imminent danger of serious physical injury.’” Id. (quotations omitted).
In addition to the PLRA’s special protections for
prison officials, “subsequent clarifications to summary-judgment law” also have “alleviated” the problem of subjecting prison officials to costly but meritless actions, “by allowing summary judgment to be entered against a nonmoving party ‘who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.’” Wyatt, 504 U.S. at 171 (Thomas, J., concurring) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
These post-Procunier changes in the statutory
scheme governing suits against prison officials undermine its premise that such officials require more protection from legal liability than common-law courts
and the 1871 Congress were willing to provide. Even
if it was legitimate for this Court to implement that
judgment, subsequent changes in the policy balance
should compel this Court to reconsider the need for
continued judicial second-guessing of legislative judgments in this context.
31
* * * *
“Revisiting precedent is particularly appropriate
where . . . a departure would not upset expectations,
the precedent consists of a judge-made rule that was
recently adopted to improve the operation of the
courts, and experience has pointed up the precedent’s
shortcomings.” Pearson v. Callahan, 555 U.S. 223,
233 (2009). That standard is satisfied here. State
prison officials have no legitimate expectations about
their authority to violate the Eighth Amendment;
Procunier imposed a purely judge-made, ahistorical,
judicial policymaking approach to § 1983 immunity
more than a century after the statute was enacted;
and the Eleventh Circuit’s inability to apply the
“clearly established” standard here effectively illustrates its shortcomings. It is time to overrule Procunier and restore § 1983 immunity to its common-law
roots.
III. THIS CASE IS AN IDEAL VEHICLE FOR
RECONSIDERING THE SCOPE OF QUALIFIED IMMUNITY
This case is an ideal vehicle either to clarify the
current “clearly established law” approach to qualified immunity, or to reconsider that approach altogether, at least as applied to prison guards. The
facts—viewed in the light most favorable to Hamlet,
see Tolan, 572 U.S. at 657 (emphasizing “the importance of drawing inferences in favor of the nonmovant” in “qualified-immunity cases”)—establish a
clear violation of the Eighth Amendment.
First, as Hamlet alleged in his complaint and
averred in sworn testimony, the violation was not
32
limited to a 30-40 minute feces exposure in the
shower, but at least a week of such exposure with no
ability to remedy his unsanitary and infection-prone
condition because he was barred from showering to
wash his wounds and denied clean linens. The court
below admitted that “framing Hamlet’s injury as several days with feces festering in open wounds would
impact [its] analysis of whether his injury satisfied
the first prong of the Eighth Amendment inquiry under clearly established law.” App. 12a. Yet, those
facts are just what the evidence—viewed favorably to
Hamlet—establish.
Second, the evidence also shows that Officer Hoxie
was at least deliberately indifferent to Hamlet’s peril,
even if he did not know the full extent of the harm his
actions would cause. The “standard of purposeful or
knowing conduct is not . . . necessary to satisfy the
mens rea requirement of deliberate indifference for
claims challenging conditions of confinement.”
Farmer v. Brennan, 511 U.S. 825, 836 (1994).
Whether a defendant possesses “subjective knowledge
of the risk of serious harm is a question of fact,” and
a factfinder may conclude that a prison official knew
of the risk “from the very fact that the risk was obvious.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th
Cir. 2007) (quoting Farmer, 511 U.S. at 842).
Officer Hoxie knew the risk of harm. Risks from
feces contamination are obvious and there is ample
evidence that Officer Hoxie knew Hamlet was exposed. Hamlet specifically “called out to the officers
to be let out of the shower” because of the feces; in
response, Officer Hoxie “initially opened the door to
let Mr. Hamlet out, but then ‘change[d] his mind and
33
[pushed][him] back in the shower,’” and then accused
Hamlet of defecating in the shower, saying “you did
it.” App. 17a-18a, 4a. When he finally allowed Hamlet back to his cell, Officer Hoxie stood and watched
Hamlet try and fail to remove feces from his open
wounds, and he then forbade officials from allowing
Hamlet to clean himself for the next week, ensuring
that feces would fester in his wounds for days. ECF
142 at 9. That evidence would easily support a finding that Officer Hoxie and other Respondents knew
about and disregarded the obvious risk from feces contamination.
Third, this case does not present split-second or
urgent decision-making made by officers without opportunity for deliberation. Rather, Officer Hoxie intentionally shoved Hamlet in a shower with pooling
feces and urine after he asked to be let out, observed
him unsuccessfully try to clean his wounds of excrement, and prohibited him from shower access for the
next week, even though he became sick. And Respondents have never claimed any penological rationalization for inhumane treatment of this nature.
Based on the foregoing summary judgment record,
this case exemplifies the circumstances where qualified immunity should not apply, either because Hamlet’s rights were clearly violated, or because Officer
Hoxie was clearly performing duties that were never
immunized from liability at common law. This case is
thus an ideal vehicle for clarifying or reforming the
qualified immunity doctrine.
34
CONCLUSION
For the foregoing reasons, the petition should be
granted.
Respectfully submitted,
Daniel M. Greenfield
Jonathan D. Hacker
Kathrina Szymborski
(Counsel of Record)
Wolfkot
Damilola G. Arowolaju
Youjin Kwon
RODERICK & SOLANGE
MACARTHUR JUSTICE
Marica Wright
CENTER
O’MELVENY & MYERS LLP
501 H Street, N.E.
1625 Eye Street, N.W.
Suite 275
Washington, D.C. 20006
Washington, D.C. 20002 (202) 383-5300
jhacker@omm.com
Attorneys for Petitioner
June 29, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.