Reply Brief — Lynn Hamlet, Petitioner v. Officer Hoxie

No. 23-7

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

____________________

REPLY BRIEF FOR PETITIONER

____________________

Daniel M. Greenfield

Jonathan D. Hacker

RODERICK & SOLANGE

Counsel of Record

Damilola G. Arowolaju

MACARTHUR JUSTICE

CENTER

Youjin Kwon

501 H Street, N.E.

Marica Wright

Suite 275

Daniel Lautzenheiser

Washington, D.C. 20002

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

jhacker@omm.com

Attorneys for Petitioner

i

TABLE OF CONTENTS

Page

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI ........................ 1

A. The Eleventh Circuit Did Not Reject

Hamlet’s Underlying Eighth

Amendment Claim On Its Merits ................. 2

B. The Decision Below Misconstrues The

“Clearly Established Right” Test .................. 3

C. The Court Should Overrule Procunier v.

Navarette And Restore Qualified

Immunity To Its Common-Law Roots .......... 8

CONCLUSION ....................................................... 13

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alamango v. Board of Supervisors of Albany

Cnty.,

32 N.Y. Sup. Ct. 551 (1881) .......................... 9, 10

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................. 9, 10, 12

City of Tahlequah, Okla. v. Bond,

142 S. Ct. 9 (2021)............................................... 8

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022)....................................... 11

Farmer v. Brennan,

511 U.S. 825 (1994) ....................................... 7, 12

Hope v. Pelzer,

536 U.S. 730 (2002) ................................... 3, 5, 12

Leegin Creative Leather Prod., Inc. v. PSKS, Inc.,

551 U.S. 877 (2007) ............................................. 8

Malley v. Briggs,

475 U.S. 335 (1986) ............................................. 8

Nieves v. Bartlett,

139 S. Ct. 1715 (2019)......................................... 9

Pearson v. Callahan,

555 U.S. 223 (2009) ............................................. 8

Pierson v. Ray,

386 U.S. 547 (1967) ............................................. 8

Procunier v. Navarette,

434 U.S. 555 (1978) ............................................. 8

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Richardson v. McKnight,

521 U.S. 399 (1997) ........................................... 10

Saucier v. Katz,

533 U.S. 194 (2001) ............................................. 8

State Oil v. Khan,

522 U.S. 3 (1997) ................................................. 8

Taylor v. Riojas,

141 S. Ct. 52 (2020)....................................... 4, 12

Tolan v. Cotton,

572 U.S. 650 (2014) ............................................. 5

United States v. Gaudin,

515 U.S. 506 (1995) ........................................... 11

Williams v. Adams,

85 Mass. 171 (1861) ...................................... 9, 10

Ziglar v. Abbasi,

582 U.S. 120 (2017) ............................................. 1

STATUTES

42 U.S.C. § 1997e ................................................... 11

Pub. L. No. 104-134, tit. viii, 110 Stat.1321-66

(1996) ................................................................. 11

OTHER AUTHORITIES

Joanna Schwartz, Police Indemnification, 89

N.Y.U. L. Rev. 885 (2014) ................................. 10

Joanna Schwartz, Qualified Immunity’s Boldest

Lie, 88 U. Chi. L. Rev. 605 (2021) .................... 11

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Margo Schlanger, Prison and Jail Civil

Rights/Conditions Cases: Longitudinal

Statistics, 1970-2021, Cases Terminated FY

2021 (Apr. 16, 2022).......................................... 12

Nicole Einbinder, Fla. prisons may violate policy

by locking people in unsanitary shower stalls

for hours on end, INSIDER, Nov. 8, 2023 ............. 5

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

“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 v. Abbasi, 582 U.S. 120, 160 (2017) (Thomas,

J., concurring).

Officer Hoxie offers no persuasive reason to decline Justice Thomas’s invitation. He instead proffers

a manufactured “vehicle” problem that mischaracterizes both the record and the Eleventh Circuit’s decision. Beyond that failed effort at distraction, Hoxie

articulates no basis in statutory text for current qualified immunity doctrine, no serious argument that immunity for prison officials was well-grounded in common law precedents by 1871, and no meaningful defense of the Court’s usurpation of Congress’s policymaking power to decide whether and when state officials should be immune from liability for violating

constitutional limitations on the exercise of state

power.

The Eleventh Circuit’s misapplication of the current “clearly established law” standard by itself warrants review. But it more fundamentally illustrates

the flawed subjectivity at the core of modern qualified

immunity analysis. The Court should grant review

and restore qualified immunity to its roots in the

2

objective common-law standards that prevailed when

42 U.S.C. § 1983 was enacted.

A. The Eleventh Circuit Did Not Reject

Hamlet’s Underlying Eighth Amendment

Claim On Its Merits

Hoxie’s principal basis for opposing review is that

the qualified-immunity questions raised in the petition are not properly presented here. According to

Hoxie, the Eleventh Circuit held that Hamlet did not

allege facts establishing an Eighth Amendment violation at all, thereby vitiating the need to consider

whether Hoxie is immune from liability for the alleged

violation. BIO 6-7. Hoxie is incorrect.

In the passage Hoxie cites, the Eleventh Circuit

addressed only the allegation that Hoxie knew Hamlet had feces in his wounds for days after the shower.

Pet. App.12a-13a. According to the court, “the record

does not support an inference that Hoxie was subjectively aware of feces in Hamlet’s wounds after the

shower,” and so Hamlet’s allegations failed the “subjective” prong of the Eighth Amendment as to that

later period. Id. at 13a. But the court explicitly distinguished that period from the shower incident itself,

which presented the distinct question of whether his

willful “30-to-40-minute exposure” to feces was “objectively extreme under clearly established law.” Pet.

App.12a-13a.

As to the distinct shower incident, the court expressed no doubt that Hoxie was fully aware he was

trapping a diabetes-stricken elderly man in feces-contaminated water. Pet. App.4a. Neither did the court

express doubt that those facts, taken as true,

3

established the violation of Hamlet’s Eighth Amendment rights. Rather, the court repeatedly described

its “narrow task” as deciding only whether the facts

established a violation of “clearly established” Eighth

Amendment rights. Pet. App.1a-2a; see id. at 8a.

(“[W]e consider the narrow question of whether Hamlet alleged conduct that violated clearly established

Eighth Amendment law.”).

This case thus squarely raises the two questions

presented in the petition about the current “clearly

established right” test: (1) whether the Eleventh Circuit misconstrued that test as requiring a precise factual comparison to prior cases, and (2) whether

Hoxie’s immunity should be determined by an altogether different test based on common-law doctrine as

it existed when § 1983 was enacted in 1871. Hoxie’s

arguments against review of those questions are unpersuasive, as the next sections show.

B. The Decision Below Misconstrues The

“Clearly Established Right” Test

Under current doctrine, a corrections officer may

be subject to liability for violating a constitutional

right only if the right is “clearly established,” meaning

either (1) there is a precedent with “materially similar” or “fundamentally similar” facts; or (2) the specific conduct in question is obviously unlawful. Hope

v. Pelzer, 536 U.S. 730, 741 (2002) (cleaned up). Nobody should dispute—and Hoxie himself does not dispute—that the Eighth Amendment requires the state

to establish sanitary conditions of confinement that

do not include “purposeful, pronounced, and prolonged” contact with human feces. BIO 13. It should

be equally clear that the right to be free from such

4

inhumane conditions is clearly established, and that

Hoxie’s conduct here violated that clearly established

right.

Viewed in the light most favorable to Hamlet, the

summary judgment record squarely establishes the

following facts: knowing that Hamlet was an elderly

man who suffered from diabetes, Hoxie intentionally

forced Hamlet to endure prolonged contact with human feces in a flooded shower and then directed that

Hamlet be denied access to cleaning materials for a

week thereafter. Pet. App.4a. Just as in Taylor v.

Riojas, 141 S. Ct. 52 (2020), there is “no evidence that

the conditions of . . . confinement were compelled by

necessity or exigency” or that the deplorable conditions “could not have been mitigated, either in degree

or duration,” id. at 53-54. There was simply no plausible justification for not promptly removing Hamlet

from the shower and ensuring fecal material was

thoroughly rinsed from his body.1

Notably, Hoxie’s brief does not even disagree: nowhere does he suggest any penological justification

for his conduct. In fact, Hoxie admits that his treatment of Hamlet was not an “exemplary disciplinary

practice.” BIO 10. But what matters more is what he

omits: no authority of any kind—no judicial precedent, no prison regulations, no incarceration manual,

nothing—suggests that intentionally forcing a person

1 Hoxie repeatedly refers to the “potato chip bag” filled with

excrement as if it were safely sealed, but obviously it was not.

Nowhere does he show that the bag made any difference in minimizing the waterborne presence of dangerous bacteria from the

feces floating in and—inevitably—out of and around the bag.

5

to endure prolonged direct exposure to waterborne

human excrement, then denying him access to cleaning materials, is ever justified in any circumstances

for any reason.2 It is thus impossible to conclude that

any reasonable corrections officer would believe that

the conduct was constitutionally authorized.3

Hoxie’s effort to explain why his conduct did not

violate a “clearly established” right merely reiterates

and confirms the Eleventh Circuit’s error in applying

the “clearly established” test. Rather than try to explain or justify the shower incident on its own terms,

Hoxie simply compares the incident to other cases

finding Eighth Amendment violations from intentional feces exposure and suggests specific ways those

cases were arguably more severe. BIO 7. But his discussion illustrates why this Court eschews “a rigid,

2 The punitive use of shower stalls—in violation of Florida’s

prison regulations—is apparently pervasive in the Florida Department of Corrections. See Nicole Einbinder, Fla. prisons may

violate policy by locking people in unsanitary shower stalls for

hours on end, INSIDER, Nov. 8, 2023, https://www.insider.com/florida-prisons-violate-policy-locking-people-inshower-stalls-2023-11.

3 Other contexts, such as excessive force claims under the

Fourth Amendment, may involve split-section decisionmaking,

where especially precise clarity in the legal standards may be

necessary to give officers adequate guidance. See, e.g., City of

Tahlequah, Okla. v. Bond, 142 S. Ct. 9, 11-12 (2021). But as this

case shows, confinement-conditions cases under the Eighth

Amendment typically involve more time for deliberation and

mitigative action, making it less likely a reasonable officer would

fail to recognize and address an obvious violation such as needless and prolonged direct contact with human excrement.

6

overreliance on factual similarity.” Hope, 536 U.S. at

742.

As Hoxie admits, other cases involving fecal contamination apply a clear principle: the Eighth

Amendment forbids the state from subjecting persons

in custody to “purposeful, pronounced, and prolonged”

exposure to fecal contamination. BIO 10, 13. There

is no need to assay the factual details of other cases to

see why the facts here satisfy that standard. The exposure was “purposeful”: Hoxie pushed Hamlet back

into the contaminated shower when Hamlet informed

him of the excrement, confiscated Hamlet’s clean linens, and did not allow Hamlet to shower after contacting feces-contaminated water. Pet. App.4a. The exposure was “pronounced”: soaking in feces-infested

water would be dangerous to anyone, but especially to

Hamlet, given his advanced age and diabetic condition, both known to Hoxie. Pet. App.2a-4a. And the

exposure was “prolonged”: Hoxie forced Hamlet to

soak in the flooded and contaminated shower for 3040 minutes and then prohibited Hamlet from cleaning

himself until a week later. Id. Those facts are fully

supported by the evidence and thus controlling in the

qualified immunity analysis. See Tolan v. Cotton, 572

U.S. 650, 657 (2014) (summarily reversing appellate

court for granting qualified immunity without viewing facts in light most favorable to non-movant).

Because the foregoing facts themselves set forth

the violation of a clearly established right, the Court

need not wade into additional facts concerning

Hoxie’s subjective knowledge of whether feces remained in Hamlet’s wounds for days later. It is

enough that Hoxie knowingly forced Hamlet to bathe

7

in excrement-contaminated water and knowingly denied him access to cleaning materials. The Eighth

Amendment requires only that Hoxie had “knowledge

of a substantial risk,” which “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence,” including “the

very fact that the risk was obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994).

It is obvious, to say the least, that soaking at

length in water contaminated with excrement creates

a substantial risk of harm, whether one has open

wounds or not. Even if Hoxie did not subjectively

know the feces had infected Hamlet’s open wounds,

he indisputably knew there was a serious risk that

Hamlet would be harmed by the prolonged contact

with excrement. Hoxie’s subsequent instruction that

Hamlet be denied access to cleaning materials afterward provides additional context, amply justifying

the further inference that Hoxie subjectively knew

Hamlet had been contaminated with feces and cruelly

sought to ensure he could not clean it off. Although

that further inference is unnecessary to establish a

viable Eighth Amendment claim based on the shower

incident alone, both Hoxie and the Eleventh Circuit

err in denying the existence of any evidence supporting that inference. BIO 8.

8

C. The Court Should Overrule Procunier v.

Navarette And Restore Qualified Immunity To Its Common-Law Roots

This Court should overrule Procunier v. Navarette,

434 U.S. 555 (1978), which cannot be reconciled with

the original, common-law foundations of qualified immunity. Pet. 25-26.

Hoxie says stare decisis has “enhanced force” in

the statutory context, BIO 19, but that principle has

little significance for a judicially-created doctrine. In

Pearson v. Callahan, 555 U.S. 223 (2009), the Court

overruled a “judge made” rule interpreting § 1983

without applying a superspecial stare decisis presumption. Id. at 233 (overruling Saucier v. Katz, 533

U.S. 194 (2001)). Similarly, in Leegin Creative

Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),

the Court overruled a nearly 100-year-old precedent

under the Sherman Act, recognizing that stare decisis

was “not as significant” in that context because the

Court had long “treated the Sherman Act as a common-law statute,” id. at 899; see State Oil v. Khan, 522

U.S. 3, 20 (1997) (The “general presumption that legislative changes should be left to Congress has less

force with respect to the Sherman Act.”).

A similar principle applies here, but with even

greater force. At least in Leegin, the overruled precedent purported to interpret specific statutory language, i.e., “restraint of trade.” By contrast, Procunier did not interpret any specific statutory term at

all, but instead applied an immunity the Court read

into § 1983 precisely because the statute’s text lacked

any such immunity. See Pierson v. Ray, 386 U.S. 547,

554-55 (1967); see also Malley v. Briggs, 475 U.S. 335,

9

339-40 (1986) (§ 1983 “on its face admits of no immunities”). A doctrine that is judicially created from the

outset should be readily susceptible to judicial modification in its application.

Even if a superspecial justification is required to

overrule Procunier, it exists here. Qualified immunity exists specifically to protect state officers from liability for conduct that violates constitutional rights,

which should make the Court extra vigilant in policing the boundaries of the doctrine and overruling

precedents that contravene its history and logic. Enforcing the Constitution is always a superspecial justification for judicial action.

Further, the traditional factors that justify overruling precedent apply here. See Citizens United v.

Fed. Election Comm’n, 558 U.S. 310, 362-63 (2010)

(summarizing factors).

First, Procunier is not “well reasoned.” Id. at 363;

see Pet. 21-29. To defend the decision’s departure

from the common law, Hoxie dredges up two nineteenth century cases that purportedly recognize immunity for prison officials. BIO 20 (citing Williams v.

Adams, 85 Mass. 171 (1861), and Alamango v. Board

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

(1881)). But two stray cases hardly show that immunity for prison officials was “well settled at the time of

[§ 1983’]s enactment.” Nieves v. Bartlett, 139 S. Ct.

1715, 1726 (2019) (emphasis added). In fact, when

§ 1983 was enacted, there was widespread judicial

agreement that prison officials were liable for unlawful acts that caused injury to persons in their custody.

Pet. 24-25 (collecting cases). Hoxie does not and cannot distinguish those cases.

10

And even on their own terms, Williams and Alamango provide no support for Procunier. Before discussing those cases, Justice Scalia acknowledged that

state prison officials were “sued at common law, often

with no mention of possible immunity.” Richardson

v. McKnight, 521 U.S. 399, 415 (1997). He then observed Williams was a “novel” case that conferred

“immunity upon an independent contractor.” Id. A

“novel” case is the opposite of “well-settled” precedent.

And even Williams would preclude immunity for willful conduct like Hoxie’s. 85 Mass. at 171-72. Alamango was an intermediate appellate court decision

holding that an incarcerated person could not sue a

municipality for the harms caused by an independent

contractor. 32 N.Y. Sup.Ct. at 553. Alamango does

nothing to demonstrate the existence of a settled common-law rule of immunity for individual prison officers who violate the rights of those in their custody.

Second, there are no meaningful “reliance interests at stake.” Citizens United, 558 U.S. at 363.

Hoxie’s only theory of reliance on Procunier is that

prison employment decisions have depended on expectations of immunity from personal liability for

abusive conduct. BIO 20-21. The suggestion is

chilling, but also false: states indemnify employees

from virtually all personal liability for § 1983 violations. 4 There is no reason the costs of liability for

4 In fact, governments—not individual officers—pay approximately 99.98% of damages awards. See Joanna Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 885 (2014). Even in

the rare cases when prison officials are denied indemnification,

plaintiffs and their attorneys typically have little reason to

11

prison abuses should be borne by uncompensated victims rather than by the perpetrators and those who

employ them.

What is more, this Court recently clarified that reliance interests relevant to stare decisis “arise where

advance planning of great precision is most obviously

a necessity.” Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228, 2276 (2022) (emphasis added; quotation omitted). Prison officials need no advance planning—precise or otherwise—to ensure that prison

conditions do not involve purposeful, pronounced, and

prolonged exposure to human feces.

This Court also has recognized that only minimal

reliance interests can form around a procedural rule

that is not a “guide to lawful behavior.” United States

v. Gaudin, 515 U.S. 506, 521 (1995). Qualified immunity is not a guide to lawful behavior—to the contrary, it explicitly exists to bar liability even for unlawful behavior. For that reason, as noted above, the

Court should not give meaningful weight to claimed

reliance interests. See supra at 9.

Statutory developments like the Prison Litigation

Reform Act (“PLRA”)—which created a prescreening

regime for lawsuits filed by incarcerated persons—

create far greater reliance interests in protecting

prison officials from civil actions. Pub. L. No. 104134, tit. viii, 110 Stat.1321-66 (1996) (codified in 42

U.S.C. § 1997e); see Pet. 29-30. The study Hoxie cites

about prison litigation only proves the point. BIO 21.

proceed against officials with inadequate personal resources.

See Joanna Schwartz, Qualified Immunity’s Boldest Lie, 88 U.

Chi. L. Rev. 605 (2021).

12

The first year such litigation declined post-1970 was

not after the Court decided Procunier in 1978, but after Congress enacted the PLRA in 1996. See Margo

Schlanger, Prison and Jail Civil Rights/Conditions

Cases: Longitudinal Statistics, 1970-2021, Cases Terminated

FY

2021,

2

(Apr.

16,

2022),

https://ssrn.com/abstract=4085142. Since the PLRA’s

enactment, the number of prison lawsuits filed has

never crossed the 1995 high, despite rising prison

populations. Id. at 2-3. Congress’ deliberate and considered action in this field is both more appropriate

and more effective than Procunier’s judicial policymaking.5

Third, experience has proved Procunier is unworkable. See Citizens United, 558 U.S. at 362. The cruelty Hoxie inflicted on Hamlet, like the prison officials

in Taylor, 141 S. Ct. 52; in Hope, 536 U.S. 730; and in

all the cases Hamlet cites (Pet. 10-15), demonstrate

Procunier’s shortcomings. The decision effectively allows corrections officers to strip persons in their custody of their basic humanity without repercussion, so

long as their conduct was not closely analogous to

some already decided precedent. As Hoxie admits,

the Eighth Amendment requires that corrections officers adhere to “evolving standards of decency,” BIO

21 (quoting Farmer, 511 U.S. at 833), but Procunier

effectively relieves them of that obligation by barring

5 The Eighth Amendment standard alone protects corrections officers from unfair liability—it requires both objective

harm and subjective disregard for such harm, creating liability

for only the most egregious actions.

13

liability unless their conduct violates standards that

are already “clearly established.”

The Court should restore immunity principles to

their original roots: the immunity historically afforded to state prison officials for the specific conduct

at question. And applying that standard, the Court

should reject immunity for Hoxie, who could not possibly have claimed immunity from liability at common

law for the indefensible conduct at issue here.

CONCLUSION

The petition should be granted.

Respectfully submitted,

Jonathan D. Hacker

Counsel of Record

Damilola G. Arowolaju

Youjin Kwon

Marica Wright

Daniel Lautzenheiser

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

jhacker@omm.com

Attorneys for Petitioner

Daniel M. Greenfield

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

501 H Street, N.E.

Suite 275

Washington, D.C. 20002

November 13, 2023