Opposition Brief — Lynn Hamlet, Petitioner v. Officer Hoxie

No. 23-7

IN THE

Supreme Court of the United States

LYNN HAMLET,

Petitioner,

v.

OFFICER BRANDON HOXIE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

ASHLEY MOODY

Attorney General

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

October 27, 2023

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

NATHAN A. FORRESTER

Senior Deputy Solicitor

General

ALLEN L. HUANG

Deputy Solicitor General

Counsel for Respondent

i

QUESTIONS PRESENTED

Petitioner Lynn Hamlet alleged in his 42 U.S.C.

§ 1983 complaint that respondent Officer Brandon

Hoxie violated the Eighth Amendment when he confined Hamlet to a running shower for 30 to 40

minutes where a potato chip bag containing feces and

urine was floating in the water. Nothing in the summary judgment record indicates that Officer Hoxie

knew about scratches on Hamlet’s ankles or that

Hamlet might have gotten any feces on them. The

questions presented are:

1. Whether the Eleventh Circuit erred in affirming the award of summary judgment on the ground

that the undisputed facts did not constitute an

Eighth Amendment violation, or alternatively that

Hamlet failed to overcome Officer Hoxie’s qualified

immunity.

2. Whether this Court should reconsider its 45year-old precedent in Procunier v. Navarette, 434

U.S. 555 (1978), which held that a public-prison official receives qualified immunity.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................... i

TABLE OF AUTHORITIES ....................................iii

STATEMENT OF THE CASE .................................. 1

REASONS FOR DENYING THE PETITION .......... 6

I. The first question presented does not warrant

certiorari. ............................................................. 6

A. The Eleventh Circuit correctly affirmed

the grant of summary judgment in favor of

Officer Hoxie. ................................................. 6

B. The decision below does not conflict with

those of other circuits. .................................. 13

C. Summary reversal is inappropriate. ............ 17

II. The second question presented does not

warrant certiorari.............................................. 18

A. Hamlet has not shouldered his burden to

show that a 45-year-old precedent of this

Court should be overruled. ........................... 18

B. This case is a poor vehicle for revisiting

Procunier. ..................................................... 22

CONCLUSION ....................................................... 23

iii

TABLE OF AUTHORITIES

Cases

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)........................................ 16, 17

Berkshire v. Dahl,

928 F.3d 520 (6th Cir. 2019) ................................ 14

Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) ............................ 11

Brooks v. Warden,

800 F.3d 1295 (11th Cir. 2015) ............................ 10

Brosseau v. Haugen,

543 U.S. 194 (2004).............................................. 17

Chandler v. Baird,

926 F.2d 1057 (11th Cir. 1991) ............................ 11

City of Tahlequah v. Bond,

142 S. Ct. 9 (2021) ............................................... 11

Eaton v. City of Tulsa,

415 U.S. 697 (1974).............................................. 17

Farmer v. Brennan,

511 U.S. 825 (1994)................................ 4, 7, 21, 22

Fruit v. Norris,

905 F.2d 1147 (8th Cir. 1990) .............................. 15

Hope v. Pelzer,

536 U.S. 730 (2002).................................. 10, 11, 13

Hudson v. McMillian,

503 U.S. 1 (1992) ....................................... 4, 10, 12

Inmates of Occoquan v.Barry,

844 F.2d 828 (D.C. Cir. 1988) .............................. 16

Johnson v. Pelker,

891 F.2d 136 (7th Cir. 1989) .......................... 14, 15

Keenan v. Hall,

83 F.3d 1083 (9th Cir. 1996) ................................ 16

iv

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015)........................................ 20, 21

Malley v. Briggs,

475 U.S. 335 (1986).............................................. 19

McCord v. Maggio,

927 F.2d 844 (5th Cir. 1991) ................................ 14

Mullenix v. Luna,

577 U.S. 7 (2015) ................................................. 18

Novak v. Beto,

453 F.2d 661 (5th Cir. 1971) ................................ 11

Pearson v. Callahan,

555 U.S. 223 (2009)...................................... 3, 4, 22

Pierson v. Ray,

386 U.S. 547 (1967).............................................. 20

Procunier v. Navarette,

434 U.S. 555 (1978)........................................ 10, 18

Rasul v. Bush,

542 U.S. 466 (2004).............................................. 19

Richardson v. McKnight,

521 U.S. 399 (1997)........................................ 19, 20

Scheuer v. Rhodes,

416 U.S. 232 (1974).............................................. 20

Schweiker v. Hanse,

450 U.S. 781 (1981 .............................................. 17

Shannon v. Graves,

257 F.3d 1164 (10th Cir. 2001) ...................... 15, 16

Surprenant v. Rivas,

424 F.3d 5 (1st Cir. 2005) .................................... 13

Taylor v. Riojas,

141 S. Ct. 52 (2020) ....................................... 10, 12

Willey v. Kirkpatrick,

801 F.3d 51 (2d Cir. 2015) ................................... 13

Williams v. Adams,

85 Mass. 171 (1861) ............................................. 20

v

Williams v. Griffin,

952 F.2d 820 (4th Cir. 1991) ................................ 14

Wood v. Strickland,

420 U.S. 308 (1975).............................................. 20

Wyatt v. Cole,

504 U.S. 158 (1992).............................................. 21

Young v. Quinlan,

960 F.2d 351 (3d Cir. 1992) ........................... 13, 14

Constitutional Provisions

U.S. Const. amend. VIII ........................................... 6

Rules

S. Ct. R. 10 .............................................................. 12

Other Authorities

Aaron L. Nielson & Christopher J. Walker,

A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853 (2018) ........ 18, 19

Broward County Clerk of Court, Case

Search, https://www.browardclerk.org//

Web2 ...................................................................... 1

Stephen M. Shapiro et al., Supreme Court

Practice § 4.4(f) (11th ed. 2019) ........................... 22

Table A: Incarcerated Population and

Prison/Jail Civil Rights/Conditions Filings, FY 1970–FY 2021, Incarceration

and the Law, https://incarcerationlaw.

com/resources/data-update/#TableA ................... 21

1

STATEMENT OF THE CASE

1. Petitioner Lynn Hamlet is serving a 40-year

sentence in Florida prison for aggravated battery and

violating a domestic violence injunction. 1 On the

night of April 25, 2018, Officer Hoxie 2 and another

corrections officer escorted Hamlet to the handicap

shower. ECF 112-1 at 29–30 (Hamlet’s deposition).

Hamlet was given a towel by one of the officers. Id.

Some time after he began showering, Hamlet noticed

a single-serving sized potato chip bag with feces inside it floating in the water. Id. at 35–36. According

to Hamlet, another inmate had earlier relieved himself in the bag. Id. at 31; ECF 115 at 5 (Hamlet’s affidavit). Hamlet also noticed urine. ECF 112-1 at 35.

Hamlet asked the officers to let him out of the

shower, but Officer Hoxie did not let him leave for

30–40 minutes, accusing Hamlet of being the one who

had relieved himself. Id. at 14; ECF 115 at 15, 20.

Hamlet did not claim he lacked running water while

in the shower and admitted he could have sat or stood

on a wall to avoid contact with the feces and urine.

ECF 112-1 at 14, 30–31, 35, 39. Instead he moved to

a “high area” by the entrance to “keep the feces from

getting to [his] open wounds,” where he had

1 Broward County Clerk of Court, Case Search, Case No.

06005997CF10A,

State

v.

Hamlet,

available

at

https://www.browardclerk.org//Web2.

2 Officer Hoxie denies that he was on duty in Hamlet’s unit

that night. ECF 108-5 at 1–2; ECF 119-2 at 1–2. Because this

case comes to the Court following the award of summary judgment, the following statement of facts will accept Hamlet’s

claim that Hoxie was the officer who took the actions in question.

2

scratched himself at night due to dry skin. Id. at 39–

40, 67.

From the shower, Hamlet saw that someone,

whom he believed to be Officer Hoxie, had taken his

sheets and clothes and thrown them into the hallway.

Id. at 40–41. Although he had earlier received a

towel, Hamlet claims that when he arrived back at

his cell wearing only his boxer shorts, he had nothing

to clean off his scratches and Officer Hoxie forbade

other officers from letting him shower for the rest of

the week. Id. at 15–16, 29, 42–43. He says he used

his hands and the water in his cell’s toilet to try to

clean off his scratches. Id. at 15. He did not ask for

clothes or bedding, but received a sheet the next

morning. Id. at 43–45.

Three days later, on April 28, 2018, Hamlet filed

a grievance over the shower incident. ECF 36-5. He

did not say anything about being sick or having feces

on his body. Id. The following day, two nurses took

Hamlet to the infirmary to treat him for hypoglycemia. ECF 112-2. The medical report for that treatment does not mention scratches on his ankles or contact with feces. Id. 3 From there Hamlet was rushed

to the hospital, where he heard from nurses he was

being treated for a bacterial infection. ECF 112-1 at

16. No medical records in the summary judgment record, however, confirm this diagnosis. App. 19a. Another medical report indicates that on May 6, 2018,

Hamlet refused to take his Hepatitis C medication

while at the correctional institution. ECF 119-4 at 4,

3 A medical report from April 24, the day before the incident,

also did not mention scratches on his ankles. ECF 119-4 at 3,

17.

3

21. And yet another medical report indicates that

Hamlet was first transferred to the hospital on

May 8. Id. at 4–5, 23. Eventually Hamlet had to have

heart valve surgery. ECF 112-1 at 18.

2. Before this incident, Hamlet had filed a complaint in the Southern District of Florida under 42

U.S.C. § 1983, raising unrelated claims against the

prison and three other prison officers. ECF 1; App.

19a–20a. The district court dismissed these claims

but allowed Hamlet to amend his complaint to add

the claim about the shower incident. ECF 29. In that

complaint Hamlet added Hoxie and one other officer

as defendants. ECF 26.

To establish that the incident violated the Eighth

Amendment, Hamlet had to prove two things. First,

he had to show that Officer Hoxie’s conduct was “sufficiently serious” to violate the Eighth Amendment

“objectively,” Farmer v. Brennan, 511 U.S. 825, 834

(1994) (citation omitted), specifically that it resulted

in an “extreme deprivation[]” denying “the minimal

civilized measure of life’s necessities,” Hudson v.

McMillian, 503 U.S. 1, 9 (1992). And second, that Officer Hoxie acted with “‘deliberate indifference’ to a

substantial risk of serious harm”—i.e., that he “was

subjectively aware of the risk,” Farmer, 511 U.S. at

828–29. Evidence of negligence is not enough for deliberate indifference—Officer Hoxie “must both

[have] be[en] aware of facts from which the inference

could be drawn that a substantial risk of serious

harm exists, and he must also [have] draw[n] the inference.” Id. at 835, 837.

Qualified immunity, though, “protects government officials ‘from liability for civil damages insofar

4

as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (citation omitted). To overcome qualified immunity, a plaintiff must show that

the facts made out a violation of his rights, and that

“the right at issue was ‘clearly established’ at the

time of [the] defendant’s alleged misconduct.” Id. at

232.

Following discovery, Officer Hoxie moved for summary judgment. ECF 108. The district court granted

the motion. ECF 130. “Even accepting every detail in

[Hamlet’s] story as true,” the court concluded, “Hamlet can satisfy neither the objective nor subjective

prongs of an Eighth Amendment claim.” App. 28a–

29a. The court found that “exposure to a small potato-chip bag’s worth of feces, and perhaps some

urine, for at most 40 minutes was not extreme

enough to satisfy the objective component of an

Eighth Amendment claim.” App. 29a. The court also

found that Hamlet had not adduced facts sufficient

to show that “Officer Hoxie was aware of Mr. Hamlet’s risk of infection,” as required to meet the subjective component. App. 32a.

Hamlet then filed an “Opposing of Summary

Judgment,” ECF 142, which the district court construed as a motion for reconsideration, ECF 147.

Hamlet claimed for the first time that when he was

taken back to his cell from the shower and put his

foot on the toilet, Officer Hoxie “could see[] the feces

on [his] ankles.” ECF 142 at 9. The district court denied the motion, explaining that Hamlet had identified no newly discovered evidence to support this

5

claim and no error of law or fact in the district court’s

order. ECF 147 at 2.

3. Hamlet appealed, but the Eleventh Circuit affirmed on two alternative grounds. To begin with, the

court of appeals held that Hamlet had not overcome

Officer Hoxie’s qualified immunity with respect to

the objective prong of the Eighth Amendment inquiry, because “[c]learly established law does not

show that a relatively brief exposure to urine and feces in the shower is an objectively extreme deprivation of the minimal civilized measure of life’s necessities.” App. 6a, 8a–11a. To that end, the court surveyed its case law addressing alleged deprivations of

sanitary conditions and found that none set out principles “so well defined” that it would have been “clear

to a reasonable officer that his conduct [in Hamlet’s

case] was unlawful in the situation he confronted.”

App. 9a–10a (citation omitted).

Next, the court of appeals agreed with the district

court that—even setting aside the question of qualified immunity—Hamlet’s Eighth Amendment claim

failed on the subjective prong because Hamlet had

provided insufficient evidence of deliberate indifference. App. 12a. As it explained, nothing in the summary judgment record indicated that Officer Hoxie

knew about the wounds on Hamlet’s ankles, much

less that feces got on the wounds, because Hamlet

never suggested that he told Officer Hoxie about the

feces on his wounds and admitted that he did not ask

him for anything with which to clean himself. Id.

Likewise Hamlet did not mention his wounds or feces

on his body in the grievance he filed. Id. And the

nurses’ reports of the day before and several days af-

6

ter the incident did not note any wounds or feces either, suggesting that at a minimum any wounds or

feces were not so obvious that Officer Hoxie would

have noticed them. Id.

The Eleventh Circuit denied Hamlet’s petition for

rehearing and petition for rehearing en banc. App.

34a.

REASONS FOR DENYING THE PETITION

I. The first question presented does not warrant certiorari.

Hamlet first invites the Court to take up the

deeply fact-bound question of whether, on the unique

record in this case, Officer Hoxie violated Hamlet’s

Eighth Amendment rights—and whether any violation was clear enough to overcome Officer Hoxie’s

qualified immunity. Pet. 8–20. That question is not

certworthy. The Eleventh Circuit properly affirmed

the grant of summary judgment in a decision that

does not implicate a circuit split, and in no event

would the extraordinary remedy of summary reversal be appropriate.

A. The Eleventh Circuit correctly affirmed

the grant of summary judgment in favor

of Officer Hoxie.

Prison life is often difficult and sometimes messy,

but the facts of this case do not amount to “cruel and

unusual punishment.” U.S. Const. amend. VIII. The

Eleventh Circuit correctly concluded that Hamlet

failed to adduce sufficient evidence from which a reasonable jury could find an Eighth Amendment violation, much less a violation so “clearly established” or

7

“obvious” that it would abrogate Respondent Officer

Hoxie’s immunity from § 1983 suit. Most critically,

there is no evidence that Officer Hoxie knew about

the scratches on Hamlet’s ankles or knew that Hamlet had gotten feces on them, as necessary to establish subjective deliberate indifference under the

Eighth Amendment. Nor does the evidence in the

summary judgment record, even when viewed in a

light most favorable to Hamlet, establish an objective

constitutional violation. By his own account, Hamlet

retained access to the running water in the shower

and was able to move to a higher area of the stall to

avoid contact with the potato chip bag containing feces that is the gravamen of his case. The actual exposure of his wounds to standing water in which some

feces might have dissolved was thus minimal at best.

At a minimum, the court of appeals was correct that

Officer Hoxie is entitled to qualified immunity.

1. Hamlet claims that Officer Hoxie violated the

Eighth Amendment by keeping Hamlet in the shower

for 30 to 40 minutes and then not providing him any

means to clean the feces off his ankles for a week.

E.g., Pet. 7. But he fails on both prongs of the Eighth

Amendment analysis. To establish that the conditions of his confinement violated the Eighth Amendment, Hamlet must show (1) that Officer Hoxie acted

with “‘deliberate indifference’ to a substantial risk of

serious harm”—i.e., that he “was subjectively aware

of the risk”—and (2) that Officer Hoxie’s conduct was

“sufficiently serious” to violate the Eighth Amendment “objectively.” Farmer v. Brennan, 511 U.S. 825,

828–29, 834 (1994) (citation omitted). Evidence of

negligence is not enough for deliberate indifference—

Officer Hoxie “must both [have] be[en] aware of facts

8

from which the inference could be drawn that a substantial risk of serious harm exists, and he must also

[have] draw[n] the inference.” Id. at 835, 837. Hamlet

has not made any of these showings.

On the subjective prong, the district court correctly found, and the Eleventh Circuit correctly affirmed, that Hamlet failed to “demonstrate that Officer Hoxie was aware of [his] risk of infection.” App.

12a, 15a, 32a. Hamlet “does not claim that he ever

told Officer Hoxie that the feces from the potato chip

bag had become stuck to open cuts on his ankles.”

App. 32a. “Nothing in [the] record suggests that

Hoxie—or anyone but Hamlet himself, for that matter—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.

Hamlet asserts that the Eleventh Circuit “seriously misstate[d] the summary judgment factual record” by not considering his post-summary judgment

allegation that Officer Hoxie saw the feces on Hamlet’s ankles after Hamlet was removed from the

shower. Pet. 15–16 & n.4; see also Pet. 6, 33 (using

allegation to attempt to show Officer Hoxie’s subjective awareness of Hamlet’s risk of infection). But that

allegation was not part of the summary judgment

record. When Hamlet did introduce that allegation in

his motion for reconsideration, he did not support it

with newly discovered evidence. Hamlet’s counsel

was thus quite right not to rely on this fact in the

Eleventh Circuit briefing, see Brief of Appellant,

Hamlet v. Hoxie, No. 21-11937 (11th Cir. Nov. 15,

2022), ECF No. 27; Reply Brief of Appellant, Hamlet

v. Hoxie, No. 21-11937 (11th Cir. Mar. 23, 2023), ECF

9

No. 52, and is wrong now to attempt to smuggle it in

before the Court. 4

Turning to the objective prong, Hamlet testified

he was exposed to feces in a single-serving sized potato chip bag in a running shower for 30 to 40

minutes. ECF 112-1 at 14, 35–36. He did not claim

that at any point he was unable to rinse off his legs

with the running water that he controlled. Id. at

36:11. He also testified that he was able to move to a

higher area of the shower “where the water couldn’t

get to [his] cuts and wounds.” Id. at 39, 67. And he

apparently chose not to lift himself out of the water

and sit on a “wall” designed for inmates to sit so that

his legs did not touch the water accumulating on the

shower floor. Id. at 30:23–31:2; 36:11–12, 16–17;

39:9–16. He was given a towel when he went to the

shower, id. at 29, and nothing in the record indicates

that he asked for anything else with which to clean

himself afterwards, id. at 43–44. The district court

ruled correctly that these facts were not enough to

establish objectively unconstitutional conduct on

Hoxie’s part.

4 On June 1, 2021, several weeks after the court’s April 26

summary judgment order, Hamlet filed the “Opposing of Summary Judgment,” which the district court treated as a motion

for reconsideration. ECF 142 at 1; see also ECF 147. He purports to have signed the opposition on November 24, 2020, id.

at 13, but the motion was addressed to and received by the Eleventh Circuit in the same envelope as Hamlet’s subsequent notice of appeal. Id. at 1, 16; ECF 144 at 25. Further, it refers to

the summary judgment order, accusing the district court of

“grant[ing] summary[] judgment to get rid of [him].” ECF 142

at 8. Any allegations in the opposition thus were made after the

summary judgment order and could not be considered part of

the summary judgment record.

10

2. Though it is not necessary to reach the question, it follows from the foregoing that the Eleventh

Circuit was right that Officer Hoxie is also entitled

to qualified immunity. The conduct of which he is accused did not violate any “clearly established” law.

Procunier v. Navarette, 434 U.S. 555, 562 (1978). Indeed, a violation of the Eighth Amendment could not

have been “obvious,” Hope v. Pelzer, 536 U.S. 730, 738

(2002), given Hoxie’s unawareness of Hamlet’s condition and Hamlet’s admitted ability to evade contamination. Confining a prisoner to a running shower

with a dung-filled potato chip bag would certainly not

be exemplary disciplinary practice, but neither is it

something “any reasonable officer should have realized . . . offend[s] the Constitution.” Taylor v. Riojas,

141 S. Ct. 52, 54 (2020) (per curiam). “[E]xtreme deprivations are required to make out a conditions-ofconfinement claim.” Hudson v. McMillian, 503 U.S.

1, 9 (1992).

Nor would any governing precedent have put

Hoxie on notice that the conduct of which he is accused would violate the Eighth Amendment. The

facts of this case pale by comparison to those in other

§ 1983 cases involving purposeful, prolonged periods

of fecal contamination, most notably Taylor, in which

an inmate was confined for four days to a cell covered

in massive amounts of feces and then another two

days to a cell in which he was forced to sleep naked

in sewage. 141 S. Ct. at 53. Similarly, in Brooks v.

Warden, the prisoner “was forced to defecate into his

jumpsuit and sit in his own feces for two days.” 800

F.3d 1295, 1303 (11th Cir. 2015).

Other cases cited by Hamlet similarly do not indicate that fleeting exposure to feces constitutes an

11

Eighth Amendment violation. In Chandler v. Baird,

the prisoner testified that he was confined to a cold

and filthy cell without adequate clothing, bedding,

soap, a toothbrush, toothpaste, toilet paper, or running water for several days. 926 F.2d 1057, 1063

(11th Cir. 1991). The Eleventh Circuit reversed the

district court’s finding of qualified immunity only because the prisoner was “entitled to have the trier of

fact determine whether the conditions of his administrative confinement, principally with regard to the

cell temperature and the provision of hygiene items,

violated the minimal standards required by the

Eighth Amendment.” Id. at 1065. And in Novak v.

Beto, the prisoner’s claim concerned solitary confinement. 453 F.2d 661, 665 (5th Cir. 1971). 5 The prisoner had cited out-of-circuit cases involving contact

with feces, but the court responded by simply noting

that they concerned “deprivation of basic elements of

hygiene.” Id. Even if this generic comment in dicta is

precedential, it is too general a proposition with

which to discern whether Officer Hoxie’s specific alleged conduct is unlawful. See City of Tahlequah v.

Bond, 142 S. Ct. 9, 11 (2021) (per curiam) (“[C]ourts

[may] not define clearly established law at too high a

level of generality.”); Hope, 536 U.S. at 739 (“For a

constitutional right to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the

5 Decisions of the Fifth Circuit issued on or before Septem-

ber 30, 1981 are precedential in the Eleventh Circuit. Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

12

very action in question has previously been held unlawful, but it is to say that in the light of pre-existing

law the unlawfulness must be apparent.’” (citations

omitted)).

In short, the governing precedents do not establish that the presence of a dung-filled potato chip bag

in a shower with running water, as well as room to

maneuver away, amounts to an “extreme deprivation[]” denying “the minimal civilized measure of

life’s necessities.” Hudson, 503 U.S. at 9.

***

At bottom, this case “turns entirely on an interpretation of the record,” and Hamlet “simply disagrees with the [Eleventh] Circuit’s application of”

Eighth Amendment precedents “to the facts in a particular record.” Taylor, 141 S. Ct. at 55 (Alito, J., concurring in the judgment) (explaining why certiorari

should not have been granted). “A petition for a writ

of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a properly stated rule of law.” S. Ct.

R. 10. “Every year, the courts of appeals decide hundreds if not thousands of cases in which it is debatable whether the evidence in a summary judgment

record is just enough or not quite enough to carry the

case to trial.” Taylor, 141 S. Ct. at 55 (Alito, J., concurring). “[A]s a rule,” this Court does not review

these cases simply because the losing party thought

the court of appeals got it wrong. Id.

13

B. The decision below does not conflict with

those of other circuits.

Hamlet next argues that this Court should grant

his petition because the decision below conflicts with

other circuit cases which supposedly held that Eighth

Amendment violations occurred under “‘materially

similar’ or ‘fundamentally similar’” facts. Pet. 10 (citing Hope, 536 U.S. at 741). He is incorrect. The cruelty of prison officers in the cases Hamlet cites (Pet.

10–15) was far more purposeful, pronounced, and

prolonged than what he claims to have experienced

in his case.

First Circuit: In Surprenant v. Rivas, the court

of appeals held it reasonable for the jury to have

found an Eighth Amendment violation when the prisoner was placed in a “combination of near-continuous

confinement, denial of exercise time, water, and

items of personal hygiene, exposure to bodily waste,

and forced insertion of inmates’ unwashed fingers

into their mouths up to five times per day.” 424 F.3d

5, 20–21 (1st Cir. 2005).

Second Circuit: In Willey v. Kirkpatrick, the

court of appeals reversed the entry of summary judgment denying the Eighth Amendment claim of a prisoner who was forced to “breath[e] a miasma of his

own accumulating waste” for “at a minimum, seven

days,” after “officers placed him in solitary confinement with a Plexiglas shield restricting the airflow

to his small cell and then incapacitated his toilet.”

801 F.3d 51, 55, 67 (2d Cir. 2015).

Third Circuit: In Young v. Quinlan, the court of

appeals reversed the entry of summary judgment for

prison officials on the Eighth Amendment claim of a

14

prisoner who was “not allow[ed] to leave his [toiletless] cell more than once to defecate or urinate over a

period of several days, not provid[ed] with a plastic

urinal for 29 hours, not allow[ed] to empty his urinal

more than twice, not allow[ed] to wash his hands before eating, not allow[ed] to bathe or shower, not

provid[ed] with toilet paper despite his diarrhea, not

provid[ed] with water to drink, [told] instead [to]

drink his urine, and [subjected to] the mocking

taunts by guards and their threats to chain [him] to

a steel slab if he complained about his conditions.”

960 F.2d 351, 365 (3d Cir. 1992).

Fourth Circuit: In Williams v. Griffin, the court

of appeals reversed the entry of summary judgment

denying the Eighth Amendment claim of a prisoner

who “described his cell toilet, shared by twelve inmates, as ‘constantly coated with urine day and

night,’” “contended that only four showers were available for ninety-six inmates,” and “pointed out that

the floors leading to the showers were constantly

flooded with sewage as a result of toilets that continually leak.” 952 F.2d 820, 825 (4th Cir. 1991).

Fifth Circuit: In McCord v. Maggio, the court of

appeals reversed a judgment for a prison official on

the Eighth Amendment claim of a prisoner who was

forced to sleep for ten months “on a bare mattress in

filthy water contaminated with human waste.” 927

F.2d 844, 847–48 (5th Cir. 1991).

Sixth Circuit: In Berkshire v. Dahl, the court of

appeals affirmed the denial of summary judgment to

prison employees on the Eighth Amendment claim of

a prisoner who was left “to lay in his own urine and

15

feces for several hours.” 928 F.3d 520, 538 (6th Cir.

2019).

Seventh Circuit: In Johnson v. Pelker, the court

of appeals reversed the entry of summary judgment

denying the Eighth Amendment claim of a prisoner

who was placed “in a cell for three days without running water and in which feces [were] smeared on the

walls,” while prison officers “ignor[ed] his requests

for cleaning supplies and for the water to be turned

on.” 891 F.2d 136, 139 (7th Cir. 1989).

Eighth Circuit: In Fruit v. Norris, the court of

appeals reversed the dismissal of the Eighth Amendment claim of three inmates who were forced to go

inside the “wet-well portion of the prison’s raw sewage lift-pump station” to clean it, without protective

gear. 905 F.2d 1147, 1148 (8th Cir. 1990). “Waste

from the prison, including sewage from over 490 toilets, flow[ed] continuously into the wet-well from an

underground sewage pipe. . . . A small opening at the

top allow[ed] entry by ladder down into the well for

cleaning and maintenance. . . . During the cleaning

process the flow of raw sewage into the wet-well

[was] continuous.” Id. at 1148–49.

Ninth Circuit: In Keenan v. Hall, the court of appeals reversed the entry of summary judgment

against the Eighth Amendment claim of a prisoner

who was forced to breathe air “saturated with the

fumes of feces, urine, and vomit” when he was confined to an “Intensive Management Unit” for six

months. 83 F.3d 1083, 1088, 1090 (9th Cir. 1996).

Tenth Circuit: In Shannon v. Graves, the prisoner got solid waste on her arm from cleaning a component of a prison sewer system because the prison

16

did not provide adequate protective gear and then

was given blankets previously used to wipe up sewage that still had a stench after being washed. 257

F.3d 1164, 1167 (10th Cir. 2001). On the first claim,

the court of appeals held only that plaintiff “may be

able to satisfy the objective component,” but in any

event “cannot demonstrate that prison officials acted

with deliberate indifference (subjective component)

insofar as her one-time exposure to sewage while she

was cleaning the lift basket.” Id. at 1168 (emphasis

added). Similarly on the second claim, the court left

open the possibility that a “jury could conclude that”

providing previously sewage-soaked blankets was objectively unconstitutional conduct, but held that the

plaintiff “ha[d] not made a showing of deliberate indifference.” Id. at 1169. The Tenth Circuit accordingly affirmed summary judgment for the prison officials. Id.

D.C. Circuit: Finally, in Inmates of Occoquan v.

Barry, the court of appeals issued no constitutional

holdings. It vacated and remanded a district court

judgment for prisoners on their confinement claims

because “[r]eading the [district] court’s opinion, with

its elaborate recitation of expert testimony at trial

concerning ‘sound correctional practice,’ we are unable to discern whether the conditions as described

rose to the level of deprivations of constitutional moment.” 844 F.2d 828, 839 (D.C. Cir. 1988) (emphasis

added).

Contrary to Hamlet’s contention, these cases do

not establish a rule that “gratuitous, close contact

with human feces” or “forcing people to endure more

than [a] de minimis proximity to feces” violates the

17

Eighth Amendment. Pet. 10, 12. None has sufficiently similar facts to make the specific conduct here

a clear violation of the Eighth Amendment or establish a conflict with the Eleventh Circuit’s ruling in

this case. See Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011) (“clearly established law” is not to be defined

“at a high level of generality”).

In any event, this case would not come out any

differently in those circuits. As discussed, Hamlet

was exposed to feces in a small potato chip bag in a

running shower for at most 30 to 40 minutes. ECF

112-1 at 40. He had continual access to running water with which he could have washed his legs. Id. at

36:11. He admitted that he moved to a higher area to

avoid the potato chip bag containing feces, id. at 39,

67, and that he could have sat on a wall to prevent

his lower legs from touching the water accumulating

on the shower floor, id. at 30–31; 36:16–17; 39. After

the incident, he did not claim to Officer Hoxie or anybody else that he had gotten feces on his wounds or

ask for anything with which to clean himself. Id. at

43–44. The facts here would not amount to an Eighth

Amendment violation in any circuit.

C. Summary reversal is inappropriate.

This case also does not call for the “extraordinary

remedy” of summary reversal. Brosseau v. Haugen,

543 U.S. 194, 207 (2004) (Stevens, J., dissenting); see

Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting) (summary reversal is “usually

reserved by this Court for situations in which the law

is settled and stable, the facts are not in dispute, and

the decision below is clearly in error”). Even when a

18

purported error is of constitutional dimension, summary reversal “should be reserved for palpably clear

cases of constitutional error.” Eaton v. City of Tulsa,

415 U.S. 697, 707 (1974) (Rehnquist, J., dissenting).

Far from presenting such a case, Hamlet’s Eighth

Amendment claim is predicated on an interpretation

of the record that is demonstrably incorrect. In all

events, this is not an instance where “this Court

ha[d] previously considered—and rejected—almost

th[e] exact formulation of the qualified immunity

question.” Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(finding summary reversal appropriate in such a circumstance). This Court should not summarily reverse.

II. The second question presented does not

warrant certiorari.

Hamlet’s second question presented likewise does

not warrant review. Pet. 21–31. In Procunier, this

Court held that public-prison officials are entitled to

qualified immunity and can be sued only “if the constitutional right allegedly infringed by them was

clearly established at the time of their challenged

conduct.” 434 U.S. at 562. The Court should not reconsider that precedent here, both because Hamlet

has not shown that it was wrongly decided and because this case is a poor vehicle to take on that question.

A. Hamlet has not shouldered his burden to

show that a 45-year-old precedent of this

Court should be overruled.

Hamlet contends that, in acknowledging the qualified immunity of public-prison officials, Procunier

19

“contravenes the very foundation of the doctrine” of

qualified immunity. Pet. 21. On his telling, at common law “prison officials were afforded no immunity

from liability for unlawful acts causing injury to persons in their custody.” Id. But “[t]he Court’s embrace

of qualified immunity has . . . been emphatic, frequent, longstanding, and nonideological,” Aaron L.

Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev.

1853, 1858 (2018), upholding qualified immunity

“more than two dozen times, often with no recorded

dissent,” id. at 1857. This includes prison officials, to

whom this Court has afforded the protection for over

half a century, starting with Procunier itself.

“[S]tare decisis carries enhanced force when a decision,” like Procunier, “interprets a statute,” like

§ 1983. Kimble v. Marvel Ent., LLC, 576 U.S. 446,

456 (2015); Rasul v. Bush, 542 U.S. 466, 493 (2004)

(Scalia, J., dissenting) (explaining that the “rule of

stare decisis in statutory cases” is “almost categorical”). This “superpowered form of stare decisis” derives force from the fact that “Congress can correct

any mistake it sees.” Kimble, 576 U.S. at 458, 456.

“Indeed, [this Court] appl[ies] statutory stare decisis

even when a decision has announced a ‘judicially created doctrine’ designed to implement a federal statute.” Id. at 456 (citation omitted).

Hamlet has not shown that Procunier was

wrongly decided, let alone identified a “superspecial

justification to warrant reversing” it. Id. at 458. Consider Hamlet’s suggestion that “suits against sheriffs

and other public prison officials were widely allowed

at common law.” Pet. 23–24. It is true that this

Court’s qualified-immunity cases have asked

20

“whether an official claiming immunity under § 1983

can point to a common-law counterpart to the privilege he asserts.” Malley v. Briggs, 475 U.S. 335, 339–

40 (1986). But, as Justice Scalia observed, just 10

years before § 1983’s adoption a Massachusetts court

recognized the immunity of a jailer. Richardson v.

McKnight, 521 U.S. 399, 415 (1997) (Scalia, J., dissenting, joined by Rehnquist, C.J., Thomas, and Kennedy, JJ.) (citing Williams v. Adams, 85 Mass. 171

(1861)). The same was true in a case decided in New

York “virtually contemporaneous[ly] with the enactment of § 1983.” Id. at 417 (citing Alamango v. Board

of Supervisors of Albany Cnty., 32 N.Y. Sup. Ct. 551

(1881)). Against those authorities, Hamlet points to

no “explicit rejection of immunity by any commonlaw court,” id. at 415, and the case law he cites (Pet.

23–25) finding prison guards liable may simply reflect the qualified nature of the privilege. Thus, “the

historical principles on which common-law immunity

was based” support qualified immunity for prison

guards. Richardson, 521 U.S. at 416 (Scalia, J., dissenting) (emphasis omitted).

In any event, Hamlet has failed to meaningfully

differentiate prison guards from the public officials

that unquestionably receive qualified immunity, like

police officers, Pierson v. Ray, 386 U.S. 547, 555–57

(1967), state executive officers, Scheuer v. Rhodes,

416 U.S. 232 (1974), and school officials, Wood v.

Strickland, 420 U.S. 308 (1975). Aside from assessing

history, this Court’s precedents have looked to “the

special policy concerns involved in suing government

officials.” Richardson, 521 U.S. at 404 (quotation

omitted). Hamlet cannot fairly debate that the work

of prison guards is akin to that of police, including

21

their need to make split-second decisions under difficult and dangerous working conditions.

What is more, overruling Procunier would have a

massive impact on prison litigation—well over

20,000 federal lawsuits are filed each year by prisoners alleging civil rights violations or unconstitutional

conditions of confinement. Table A: Incarcerated

Population and Prison/Jail Civil Rights/Conditions

Filings, FY 1970–FY 2021, Incarceration and the Law

(last accessed Oct. 26, 2023), https://incarcerationlaw.

com/resources/data-update/#TableA. In this arena,

“[q]ualified immunity balances two important interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). For

prison administrators and employees, the balance

also accounts for the ever-expanding scope of liability

to which they have become subject under the “evolving standards of decency” that constitute the Eighth

Amendment. Farmer, 511 U.S. at 833 (quotations

omitted). In other words, qualified immunity meets

the State’s need “to ensure that talented candidates”

are “not deterred by the threat of damages suits from

entering public service.” Wyatt v. Cole, 504 U.S. 158,

167 (1992).

In short, the reliance of public officials, especially

prison guards, on how the courts have struck that

balance has been immense. See Kimble, 576 U.S. at

457–58 (“So long as we see a reasonable possibility

that parties have structured their [behavior] in light

of [a decision], we have one more reason to let it

stand.”).

22

B. This case is a poor vehicle for revisiting

Procunier.

Even if this Court were inclined to consider upending 45 years of precedent, this case would hardly

be the vehicle to do so. For a case to squarely present

the question of whether public-prison officials should

receive qualified immunity, the facts must amount to

a constitutional violation, but one that is nevertheless not clearly established, making qualified immunity the only barrier to relief. Only in that circumstance could an inmate stand to gain from a ruling

receding from Procunier. See Stephen M. Shapiro et

al., Supreme Court Practice § 4.4(f), at 4–18 (11th ed.

2019) (observing that where the question presented

“is irrelevant to the ultimate outcome of the case before the Court, certiorari may be denied”). Here, however, it is unnecessary to reach the question of qualified immunity because Hamlet has not provided sufficient evidence from which a reasonable jury could

find an Eighth Amendment violation.

Indeed, Hamlet has shown neither that Officer

Hoxie acted with “‘deliberate indifference’ to a substantial risk of serious harm”—i.e., that he “was subjectively aware of the risk”—nor that the conduct

here was “sufficiently serious” to violate the Eighth

Amendment “objectively.” Farmer, 511 U.S. at 828–

29, 834 (citation omitted). As the district court ruled

and the Eleventh Circuit affirmed, nothing in the

summary judgment record indicates that Hoxie knew

about Hamlet’s wounds or that feces got on them. For

that reason alone, Hamlet’s Eighth Amendment

claim must fail, irrespective of any questions about

qualified immunity.

23

CONCLUSION

For the foregoing reasons, the petition should be

denied.

Respectfully submitted,

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

October 27, 2023

ASHLEY MOODY

Attorney General

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

NATHAN A. FORRESTER

Senior Deputy Solicitor

General

ALLEN L. HUANG

Deputy Solicitor General

Counsel for Respondent