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.

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