Respondents Brief — Hope v. Pelzer

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| Maorene Const 7b.

FILED

No. 01-309 MAR 25 2002

OFFICE OF THE CLERK.

In The ——$—$———al

Supreme Court of the United States

LARRY HOPE,

Petitioner,

MARK PELZER, GENE McCLARAN, and JIM GATES,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF FOR THE RESPONDENTS

Bit Pryor

Attorney General

NATHAN A. FORRESTER

Solicitor General

Atyce S. RoBertson

Deputy Solicitor General

MARGARET FLEMING

Assistant Attorney General

E1teNn Leonarp-THOMas*

Assistant Attorney General

“Counsel of Record

ALABAMA ATTORNEY

GENERAL'S OFFICE

11 South Union Street

Montgomery, Alabama 36130

(334) 353-8699*

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

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PARTIES TO THE PROCEEDINGS BELOW

The Petitioner, Larry Hope, is an individual who was

the plaintiff in the district court and the appellant in the

court of appeals. The Respondents, Mark Pelzer, Gene

McClaran, and Jim Gates, are all individuals who were

the defendants in the district court and the appellees in

the court of appeals. Contrary to the caption submitted

by petitioner, Jim Gates is not the same as Keith Gates. At

the time of the events relevant to this case, Jim Gates was

a Lieutenant at Limestone Correctional Facility. Keith

Gates was a Correctional Officer I. App. 35. Petitioner did

not identify Lieutenant Gates as “Jim Gates a/k/a Keith

Gates” in his complaint, referring instead to “Lut. [Lieut.]

Gates.” App. 7. He did not serve Officer Keith Gates with

his complaint. The first time petitioner began referring to

Lieutenant Gates as “Jim Gates a/k/a Keith Gates” was

when his counsel appeared on his behalf and submitted

his Second Affidavit. App. 43. Petitioner never moved to

amend his complaint to name Keith Gates as a defendant.

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDINGS BELOW......... i

TABLE OF AUTHORITIES .......ccccccccvcccsccces iv

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

SUMMARY OF THE ARGUMENT ................. 17

ARGUMENT 2. co ccccccccnsccncscscsuessunaeeannnee 19

I. Pelzer, McClaran, and Gates Did Not Violate the

Eighth Amendment by Putting Hope on the

Restraining Bar in Accordance With Regulation

GBD. cccccccccccscnccescecuceseustsneennenanee 19

A. Pelzer, McClaran, and Gates did not act

with “deliberate indifference” to Hope’s

health and safety by putting him on the

restraining bar in accordance with Regula-

am GED... ccvccscccceseucenebsndeunennnee 20

B. Pelzer, McClaran, and Gates did not deny

Hope the “minimal civilized measure of

life’s necessities” by putting him on the

restraining bar in accordance with Regula-

XS: Peer. 23

II. Even If This Court Determines That Pelzer,

McClaran, and Gates Violated the Eighth

Amendment by Putting Hope on the Restraining

Bar, They Are Entitled to Qualified Immunity

Gen THES Gall. .ccccccccvesceeetssuekeeeneanee 31

A. “Material similarity” is a workable and

flexible standard that advances the pur-

poses of this Court’s qualified immunity

GOCHEMD. 0 oc ccccccsccesaseséacenseuneeenee 32

TABLE OF CONTENTS - Continued

Page

B. Use of the restraining bar in accordance

with Regulation 429 was neither patently

cruel and unusual nor materially similar to

any form of punishment deemed cruel and ;

unusual by a court ........ 2.6.6.6 e eee eees 39

III. This Court Should Reject the United States’ Sug-

gestion That It Remand For Petitioner to Engage

En wcaccecceccccccesccsccesccccccess 44

cer crecceceecceteseecccccccccccccces 46

TABLE OF AUTHORITIES

Page

Cases:

Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995) .... 38

Affiliated Ute Citizens of Utah v. United States, 406

WD, GED GRIPE cc cccccvcccsccccccccccesesesevosese 34

Anderson v. Creighton, 483 U.S. 635 (1987)... . 32, 33, 36, 45

Ashby v. Dees, No. CV-94-U-0605-NE (N.D. Ala.

Pe En oo hc kdecdcceceeseceeuncececsoncoceseuesee 15, 42

Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D. Ala.

SEE. .. cnawsiscdsiniconeasenuetitenuonieeeaanule 14, 22

Basic Inc. v. Levinson, 485 U.S. 224 (1988)............ 34

Bell v. Wolfish, 441 U.S. 520 (1979) ............... 30, 31

Birrell v. Brown, 867 F.2d 956 (6th Cir. 1989)......... 38

Bogard v. Cook, 586 F.2d 399 (Sth Cir. 1978).......... 38

Butz v. Economou, 438 U.S. 478 (1978) ............... 32

Campbell v. Sikes, 169 F.3d 1353 (11th Cir. 1999) ..... 27

Dale v. Murphy, No. CV-85-1091-H-S (S.D. Ala.

Ges co cuscccccconseconccecesédutedeverecnsees 15, 42

Estelle v. Gamble, 429 U.S. 97 (1976) ...........06005: 20

Farmer v. Brennan, 511 U.S. 825 (1994).... 20, 21, 27, 28

Ford v. Wainwright, 477 U.S. 399 (1986).............. 29

French v. Owens, 777 F.2d 1250 (7th Cir. 1985)....... 25

Fuentes v. Wagner, 206 F.3d 335 (3rd Cir. 2000) ...... 21

Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) ..... 42, 43

Harlow v. Fitzgerald, 457 U.S. 800 (1982)...... 32, 33, 45

TABLE OF AUTHORITIES - Continued

Page

Harmelin v. Michigan, 501 U.S. 957 (1991)......... 24, 29

Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991)..... 29

Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999)....... 27

Hollis v. Folsom, No. CV-94-T-0052-N (M.D. Ala.

Senso cncececccedeccusecedndnedecnsosconasees 15, 42

Hudson v. McMillian, 503 U.S. 1 (1992) .............. 23

Hutto v. Finney, 437 U.S. 678 (1978) ..............04. 28

Johnston v. Hopper, No. CV-97-N-937-NE (N.D.

GE Tic ccnceducessesesesues Mndetensesonsecese 15

Key v. McKinney, 176 F.3d 1083 (8th Cir. 1999)....... 27

Kimble v. Hightower, No. CV-95-B-1328-S (N.D.

SEE Mes acancucnnacdecedusnecesandenscesesseoues 15

Lane v. Findley, No. CV-93-C-1741-S (N.D. Ala.

Pee cbncédndudepeuncesueteanucangesssecedsesd 15, 42

Lassiter v. Alabama A&M University, 28 F.3d 1146

EE GD Ecennedenecwdssusenesedsecsaccseese 35

Lewis v. Smith, 855 F.2d 736 (11th Cir. 1988)......... 11

LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988) ..... 11

Lopez v. Robinson, 914 F.2d 486 (4th Cir. 1990)....... 38

Malley v. Briggs, 475 U.S. 335 (1986)...............5. 33

Marsh v. Butler County, 268 F.3d 1014 (11th Cir.

an scchanccdueuseceadesapensucoesenkesssséucsoc 38

Ort v. White, 813 F.2d 318 (11th Cir. 1987)........ 40, 41

Osolinski v. Kane, 92 F.3d 934 (9th Cir. 1996)......... 37

Pell v. Procunier, 417 U.S. 817 (1974) ................ 28

TABLE OF AUTHORITIES — Continued

Page

Prater v. Dahm, 89 F.3d 538 (8th Cir. 1996) .......... 37

Priester v. City of Riviera Beach, 208 F.3d 919 (11th

EE SEED Sd cnccnscececocacssecansdesisovsedvconss 35

Rhodes v. Chapman, 452 U.S. 337 (1981). ..23, 28, 29, 30, 31

Rodgers v. Jabe, 43 F.3d 1082 (6th Cir. 1995).......... 38

Rummel v. Estelle, 445 U.S. 272 (1980) ............ 24, 29

Saucier v. Katz, 121 S. Ct. 2151 (2001) .... 19, 32, 33, 34

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 33

Seltzer-Bey v. Delo, 66 F.3d 961 (8th Cir. 1995)....... 37

Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994)....... 40

Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997) ...... 36

Thomas v. Arn, 474 U.S. 140 (1985) ...............45. 11

Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1998)........ 37

Thompson v. Oklahoma, 487 U.S. 815 (1988)........... 29

Trop v. Dulles, 356 U.S. 86 (1958)...................4. 23

United States v. Lanier, 520 U.S. 259 (1997). ...34, 35, 36

Vinson v. Thompson, No. CV-94-A-268-N (M.D. Ala.

Peebensccedeccancedsonnadecdsundsdnhandkénicet 15, 42

Wells v. Franzen, 777 F.2d 1258 (7th Cir. 1985) ....26, 40

Whitley v. Albers, 475 U.S. 312 (1986)............. 25, 31

Whitson v. Gillikin, No. CV-93-H-1517-NE (N.D.

Gs Ge adc ecvodncecdstidebencedscatcetcevées 15, 42

Williams v. Burton, 943 F.2d 1572 (11th 1991) ..... 27, 40

Williams v. Delo, 49 F.3d 442 (8th Cir. 1995) ......... 38

vii

TABLE OF AUTHORITIES - Continued

Page

Williamson v. Anderson, No. CV-92-H-675-N (M.D.

| BEPPPPTTTITITIIC TILT TITTLE TTL Tee 15, 42

Wilson v. Layne, 526 U.S. 603 (1999).............. 43, 44

Wilson v. Seiter, 501 U.S. 294 (1991).............. 19, 20

Wood v. Strickland, 420 U.S. 308 (1975) .............. 33

STATUTES, REGULATIONS, AND RULES:

BD TB, Bie cc cncccccccccvccccsccescscsescescccces 35

TD BR Gee cccccccccccccoscceseseccsocceseceeses 11

GB DEG. TB e ccccccccccccccvvcccccees 9, 15, 19, 36, 42

Alabama Department of Corrections Regulation

—PPPPPPTITITITITITITITITILITITL LTT TL passim

MISCELLANEOUS:

http://www.getchwood.com/ punishments /

curious/chapter-4.html...... 2... 6.0.6 666 e eee eens 25

http: / /www.ncdc.noaa.gov/cgi-bin/fsod_xmgr/

tmp/fsod 24228.gif .......... 6... c cece eee e eee e eens 4

http: / / www.ncdc.noaa.gov/cgi-bin/fsod_xmgr/

tmp/fsod 22614.gif ........ 6.06... e cece cece eee eees 8

http: / /onlinedictionary.datasegment.com / word /

MOSY 2. ccc cccccccccccccccccccccccccescscvecceees 25

STATEMENT OF THE CASE

In 1995, respondents Sergeant Mark Pelzer, Officer

Gene McClaran, and Lieutenant Jim Gates were each

prison officers at Limestone Correctional Facility in Cap-

shaw, Alabama, where petitioner Larry Hope was

imprisoned. The Alabama Department of Corrections has

a written policy, Regulation 429, that authorizes prison

officers to handcuff inmates who refuse to work or who

disrupt work crews to a “restraining bar” — a chest-high

lateral pole. In May and June of 1995, respondents twice

had to put Hope on the restraining bar at Limestone

because he disrupted work crews. Hope alleges that these

actions violated the Eighth Amendment. Pelzer,

McClaran, and Gates contend that putting Hope on the

bar in compliance with the safety procedures set forth in

Regulation 429 did not violate the Eighth Amendment.

Even if this Court rules that they did violate the Eighth

Amendment, Pelzer, McClaran, and Gates contend that

the law was not clearly established in 1995 and that they

accordingly enjoy qualified immunity from this suit.

1. In putting Hope on the restraining bar, respon-

dents followed Regulation 429 of the Alabama Depart-

ment of Corrections (the “DOC”). Regulation 429

provided that, when an inmate “refuse[d] to work” or

was “otherwise disruptive to the work squad,” prison

officers were authorized to “handcuff” the inmate to a

“permanently affixed restraining bar.” App. 102-03. (Reg-

ulation 429 did not permit “tying” the inmate to the bar,

as was perhaps inadvertently suggested by the phrasing

of Question 2 of the Questions Presented.)

Regulation 429 set forth a detailed list of procedures

that the officers were to follow when they employed this

measure. Hope has not alleged that respondents Pelzer,

McClaran, or Gates ever departed from these procedures

at any time during this case. App. 5-11, 43-48.

The most significant procedural requirement of Reg-

ulation 429 was that the inmate could be left on the bar

only so long as he continued to refuse to work. “At any

time during the day,” Regulation 429 stated, “the inmate

can tell an officer that he is ready to go to work.” App.

103. “He will be allowed to join his assigned squad for

that day and begin work.” App. 103. The inmate thus

held the keys to his release in his own pocket.

Before putting an inmate on the bar, moreover, offi-

cers were required to contact the health care unit to make

certain that the inmate did not have a “medical stop-up”

or health condition that was preventing him from work-

ing. App. 103. If the officers had been required to use

force to bring the inmate to the bar, they were required to

contact a nurse who would check the inmate’s condition.

App. 103. The restraining bar had to “be located no more

than 50 feet from an officer,” ensuring that an officer

would always be on hand in case the inmate had a

problem or indicated a willingness to return to work.

App. 103.

If the inmate continued to refuse to work, Regulation

429 required prison officers to attend to the inmate’s

health and safety while he remained on the bar:

e “Fresh water will be available to the inmate.”

e “He will be given the opportunity to go to

the bathroom once each hor.”

e “He will be fed a sack lunch at the restrain-

ing bar.”

e “Inmates placed on the bar that are taking

prescribed medication will be given their

medicine at the appropriate time at the

restraining bar.”

App. 103.

Regulation 429 also rec». 1 that the prison officers

keep a detailed activity lo, . .ae time the inmate spent

on the bar. App. 104. The officers were required to

explain their reasons for using the restraint and to make

notations when the inmate got on and off the bar; when

the inmate accepted or rejected a meal; when the inmate

accepted or rejected water; when the inmate accepted or

rejected a restroom break; when the inmate accepted or

rejected prescribed medication; and when the inmate

received medical attention. App. 106. The log required

the prison officers to note their observations of the

inmate every fifteen minutes. App. 106.

The longest that an inmate could remain on the bar,

no matter how disruptive or intransigent he may have

been that day at work, was until his fellow inmates on the

work squads returned to the prison. Regulation 429

required that the inmate on the bar “be checked back into

the institution after the last squad is checked in.” App.

103. He would also be “written a disciplinary.” App. 103.

2. On May 11, 1995, at about 11:40 a.m., respondent

Officer Gene McClaran was alone supervising a work

crew away from Limestone Prison. Hope was part of that —

crew. App. 34. Hope admits that he got into a “verbal

disagreement” with another inmate on the crew named

Tony Perkins. App. 9. In his incident report, Officer

McClaran recounts that Hope “raised the swing blade he

was working with and drew back with intentions of

striking Inmate Perkins.” App. ~34.

Officer McClaran ordered Hope to stop, racked the slide

bolt of his rifle closed, and ordered the entire work crew to

get on the ground. Hope and Perkins remained standing.

McClaran again ordered Hope and Perkins to get on the

ground. Hope retorted: “fuck you.” Finally, respondent Ser-

geant Mark Pelzer arrived at the scene to assist McClaran,

and Hope and Perkins submitted. App. 34.

Another officer, who is not a defendant in this case,

transported Hope and Perkins back to Limestone. App.

34-35. At approximately 12:20 p.m., Hope was put on the

restraining bar. App. 35, 38. Hope equivocates as to

which officer was the one who actually put him on the

bar. In his second affidavit, he says he believes it was

Sergeant Pelzer. App. 45. But the incident report

appended to his affidavit identifies two other officers (not

defendants in this case) as the ones who cuffed him to the

bar, and he appears to defer to that report in his affidavit.

App. 35, 45. Despite this equivocation, respondents will

concede, for summary judgment purposes only, that Pel-

zer was the officer who cuffed Hope to the bar on May

11.

The activity log for May 11 shows that Hope was

offered water and restroom breaks every fifteen minutes.

He declined the offers on all but one occasion, when he

went to the bathroom. App. 39. Temperatures that day

ranged between 58 and 75 degrees. See http://

www.ncdc.noaa.gov/cgi-bin/fsod_xmgr/tmp/

——

TOT ce

fsod 24228.gif. Hope asserts that his arms grew tired

while on the bar and that the cuffs cut into his wrists as

he changed positions. App. 45. The nurse who examined

Hope later that day, however, found that he had “[n]o

bruises, contusions, abrasions or lacerations” and “[n]o

s/s [signs or symptoms] of trauma or illness.” App. 12.

At 2:40 p.m., Officer Keith Gates (a different Gates

than the Lieutenant Jim Gates who is a respondent in this

case!) released Hope from the restraining bar and sent

him back to the work crew. App. 35. Hope claims he was

released after a superior officer determined that Perkins

was the inmate responsible for the altercation. App. 45.

Hope and Perkins later signed a “peace agreement” — an

agreement to live with each other without physical con-

flict. App. 35.2

Contrary to the statement of the Eleventh Circuit

(Pet. App. 9-10) and of petitioner in his principal brief (p.

3), Hope did not allege or present evidence in the district

court that he told any prison officer - much less one of

the respondents - that he was prepared to return peace-

ably to work, but was instead forced to stay on the bar.

App. 5-11, 43-48.

1 Hope has never presented any evidence that “Officer

Keith Gates” was the same person as “Lieutenant Jim Gates.”

See Parties to the Proceedings Below, supra.

2 Without a peace agreement, the officers may have been

required by DOC policy to put Hope and Perkins on an “enemy

list,” which would prevent them from ever being housed in the

same facility while in prison. The DOC employs this measure to

comply with its Eighth Amendment obligation not to put

inmates in situations where they are in danger of violence by

other inmates. :

Most important, Hope did not allege or present evi-

dence that Pelzer, McClaran, or Gates violated Regulation

429 in any way from the time Pelzer put him on the bar to

the time he was released. He did not allege or present

evidence that they denied him food, water, or a bathroom

break, or that they abused him in any other way. He did

not allege or present evidence that they were even in the

vicinity of the restraining bar during that entire period.

App. 5-11, 43-48.

3. On June 7, 1995, at approximately 10:30 a.m.,

Hope failed to exit the bus with his fellow inmates to

begin another work crew. Hope admits that he was nap-

ping and that he did not comply when Officer Ted Log-

gins ordered him to get off the bus. App. 10. Hope claims

that Loggins then grabbed him by the neck and that he

retaliated by grabbing Loggins by the neck. App. 10. The

officers who were present, however, stated that it was

Hope who initially made an aggressive movement toward

Loggins and attempted to grab Loggins by the neck. Pet.

Supp. App. 13. In any event, several other officers had to

intervene to help Loggins subdue Hope. App. 26, 30.

Hope originally named Loggins and four other officers as

defendants in this case and alleged that they used exces-

sive force during this incident. App. 10. He has since

voluntarily dismissed these five defendants along with

his claim of excessive force. Supp. App. 9.

Following the altercation with Loggins, Sergeant Pel-

zer put leg irons on Hope and escorted him to Lieutenant

Gates’s station wagon. App. 17, 26, 30. Hope was first

taken to the health care unit. App. 10. At 11:15 a.m., the

nurse observed that Hope’s “speech was normal,” that he

had a “[flew scattered bruises” on his left scapula and a

“[rleddened area” on his right shoulder, but “[n]o bleed-

ing,” “[nJo knots” on his head, and no “visual distur-

bances.” Hope was also “[a]mbulating well.” A

determination was made that Hope needed no medical

treatment and he was released to the correctional officers.

App. 13.

Lieutenant Gates then handcuffed Hope to the

restraining bar. App. 46. Hope contends that other offi-

cers were present to assist Gates. App. 10. Officer

McClaran may have been one of them. In his response to

Hope’s complaint, McClaran admitted that he “did place

Inmate Hope on the Restraining Bar.” App. 24. It is not

clear whether McClaran was referring to the May 11

incident, when he ordered that Hope be put on the bar, or

to the June 7 incident, but the magistrate judge inferred

from McClaran’s statement that McClaran put Hope on

the bar on June 7. Pet. Supp. App. 14 n. 5.

Hope also states that one of the officers present said:

“take that rag off of him. I have shit I need to clean off the

van.” App. 10. Hope does not claim, however, that Gates

or McClaran made this remark. Hope asserts that the

officers made him take off his shirt. App. 10. The pictures

Hope submitted with his second affidavit, which he says

were taken on June 7, show that he was not wearing his

prison-issue shirt but that he was wearing another short-

sleeved shirt and a cap. App. 55-57. Despite this evi-

dence, the magistrate judge found that Hope did not have

a shirt while he was on the bar on June 7. Pet. Supp. App.

14. Respondents did not object to this finding in the

district court and so must be deemed to have conceded

its accuracy for purposes of this petition.

Hope stayed on the bar for about seven hours.-Hope

says that, while on the bar, he became hot, thirsty, and

sunburned. Hope also says that his arms grew tired and

that his wrists swelled while he was on the bar and

remained swollen for a day. App. 10, 47-48. The tempera-

tures that day were between 64 and 87 degrees. See

http:/ /www.ncdc.noaa.gov/cgi-bin/fsod _xmgr/tmp/

fsod 22614. gif. ;

Hope did not allege or present evidence in the dis-

trict court that Pelzer, McClaran, or Gates violated Regu-

lation 429 from the time Gates put him on the bar to the

time he was released by an unnamed officer. He did not

allege or present evidence that they denied him food,

water, a bathroom break, or that they abused him in any

other way. He did not allege or present evidence that they

were even in the vicinity of the restraining bar during the

entire period in question. App. 5-11, 43-48.

Contrary, again, to the statement of the Eleventh

Circuit (Pet. App. 9-10) and of Hope in his opening brief

(p. 3), Hope did not allege or present evidence in the

district court that he told any prison officer - much less

Pelzer, McClaran, or Gates — that he was ready to return

to work, but that the officer instead forced him to stay on

the bar. Also contrary to the statement of the Eleventh

Circuit (Pet. App. 3 & n. 1, 6), Hope did not allege or

present evidence that he ever asked for but was denied a

bathroom break. No activity log of his time on the bar

that day has been introduced into the record.

Hope admits that he received water at least once or

twice while on the bar. App. 47. He states that he was

—— ere.

“deprived of water” for a three-hour stretch, but he does

not identify the officers responsible for supplying him

with water during this period. App. 47. He also alleges

that two unidentified prison officers - not the respon-

dents — taunted him by giving water to some dogs and by

bringing water near him and then kicking it away. App.

47, 50; Pet. Supp. App. 26 n. 10.

4. On November 11, 1996, Hope filed a pro se com-

plaint in the United States District Court for the Northern

District of Alabama, seeking declaratory relief and dam-

ages under 42 U.S.C. 1983 for alleged violations of his

constitutional rights. Hope named Sergeant Pelzer, Offi-

cers McClaran, Kent, Jackson, Loggins, Stephenson,

McGee, and Lieutenant Gates as defendants. App. 7. In

the affidavit attached to his complaint (App. 9), Hope

alleged that Officer McClaran had “mistakenly” put him

on the restraining bar on May 11, 1995, and that Officers

Kent, Jackson, Loggins, Stephenson, and McGee had used

excessive force against him on June 7, 1995. He made no

specific allegations against either Sergeant Pelzer or Lieu-

tenant Gates. App. 9-11.

On November 3, 1997, Hope’s current counsel

entered his appearance on Hope’s behalf. He dropped the

claim of excessive force and dismissed Loggins, Jackson,

McGee, Stephenson, and Kent as defendants. He also

filed a supplemental affidavit in which Hope stated that

it was either Pelzer or Gates who had cuffed him to the

bar on May 11, 1995, and that it was Gates who had

cuffed him to the bar on June 7, 1995. App. 43-55, 45-46.

Hope made no further allegations and presented no addi-

~ tional evidence concerning the respondents’ involvement

in the case.

During the two and one half years between his initial

appearance and the district court’s award of summary

judgment, Hope’s counsel did not supplement the record

with any other evidence of the respondents’ involvement

in the case. Neither did he move to amend the complaint

to add other prison officers as defendants, such as the

two officers who allegedly taunted Hope and kicked his

water away. In a separate class action brought to enjoin

use of the restraining bar, Hope’s counsel identified one

of those two officers by name, yet he did not join that

officer as a defendant in this case. Pet. Supp. App. 26 n.

10.

On March 10, 2000, the magistrate judge issued a

Report and Recommendation that the district court grant

summary judgment to the respondents. Pet. Supp. App. 6.

The judge did not find that any prison officer, much less

one of the respondents, had forced Hope to stay on the

bar after he had expressed a willingness to go to work.

The judge did not find that any prison officer, much less

one of the respondents, had ever denied Hope a bath-

room break while on the bar. The judge found that Hope

had received water “at least once or twice” both times he

was on the bar, and although the judge credited Hope’s

allegation that two unidentified officers had taunted him

and kicked water away from him, the judge correctly

noted that those officers were not Pelzer, McClaran, or

Gates. Pet. Supp. App. 25-27.

The only involvement that the magistrate judge

found on the part of Pelzer, McClaran, and Gates was that

they had either ordered Hope be put on the bar or had

cuffed him to the bar themselves. Pet. Supp. App. 12, 14.

Finding no clearly established constitutional precedent

prohibiting prison officers from employing a measure like

Regulation 429, the magistrate judge recommended that

the district court rule that Pelzer, McClaran, and Gates

enjoyed qualified immunity from Hope’s Section 1983

complaint. Pet. Supp. App. 33.

Under 28 U.S.C. 636(b)(1), Hope had ten days in

which to object to the magistrate judge’s findings of fact;

otherwise, he would be deemed to have admitted them

and to have waived his right to contest those findings on

appeal.* Hope filed an objection in which he made legal

arguments against the magistrate judge's legal conclusion

but did not contest any of the judge’s factual findings.

App. 93. On March 24, 2000, the district court issued a

memorandum opinion adopting the magistrate judge's

factual findings and recommendation and awarded sum-

mary judgment to the respondents. Pet. Supp. App. 1-5.

5. The United States Court of Appeals for the Elev-

enth Circuit affirmed the district court’s judgment on

qualified immunity. The court also ruled, however, that

the respondents’ use of the restraining bar was cruel and

3 This Court has held that the courts of appeals may adopt

standards, including standards that limit appeals, for cases in

which the district court adopts the recommendations of a

magistrate judge. Thomas v. Arn, 474 U.S. 140, 146-147 (1985).

The Eleventh Circuit has held that the failure to object, after

notice, to the magistrate’s factual findings precludes later attack

on those findings. Lewis v. Smith, 855 F.2d 736 (11th Cir. 1988);

LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988); see also Thomas

v. Arn, 474 U.S. at 146 n. 4. When a court of appeals has adopted

such a rule and a party fails to object to the facts or conclusions

of law found by a magistrate judge, he has waived those issues

on appeal in that circuit. Thomas v. Arn, 474 U.S. at 150.

unusual punishment under the Eighth Amendment. In so

ruling, the court made a number of factual suppositions it

was not entitled to make.

First, the court of appeals found that, on both May 11

and June 7, 1995, the prison officers violated Regulation

429 by leaving Hope on the bar when he was willing to

go back to work. Pet. App. 9-10. The magistrate judge

never made any such finding, and Hope waived his right

to press this issue on appeal when his counsel failed to

object to the magistrate judge’s factual findings in the

district court.

Even if Hope did not waive the issue, the summary

judgment record does not support the court of appeals’

finding that the prison officers violated Regulation 429.

The only allegation or evidence Hope has ever given

about his disposition toward work in this case is the

following statement about the May 11 incident: “I had

neither refused to work nor encouraged other inmates

not to work at the time of that incident.” App. 44. Hope

may not have refused to work or encouraged other

inmates not to work, but he was “disruptive to the work

squad” under Regulation 429 when he forced Officer

McClaran to train a rifle on him in order to prevent him

from striking a fellow inmate with a swing blade. App.

34. He was also “disruptive to the work squad” on June 7,

by failing to exit the work bus when ordered and by

getting into an altercation with several prison officers.

App. 10, 102.

Furthermore, Hope has never alleged that once he

was on the bar he told any prison officer, much less one

of the respondents, that he was prepared to return peace-

ably to work. App. 5-11, 43-48. Nonetheless, the court of

appeals found it “improbable that had Hope said, ‘I want

to go back to work,’ a prison guard would have left his

post at Limestone to drive Hope back to the work site.”

Pet. App. 10. The court said it was “more likely that the

guards left Hope on the post until his work detail

returned to teach the other inmates a lesson.” Pet. App.

10. The court of appeals had no record basis or pro-

cedural warrant to engage in such speculation.

Second, the court of appeals found that Hope “was

given no bathroom breaks” on June 7, 1995. Pet. App. 3 &

n. 1. Hope, however, never even made such an allegation,

either in his pro se complaint or in the second affidavit he

filed with the assistance of counsel. In addition, the

record contains no activity log of Hope’s time on the bar

on June 7. The court of appeals implied, without any

record support, that respondents were somehow respon-

sible for this omission, and then asserted that the absence

of the activity log meant that “Hope's allegations about

the lack of . . . bathroom breaks [we]re uncontested.” Pet.

App. 3 n. 1. As the plaintiff, Hope bore the burden of

alleging and adducing evidence that he was denied a

bathroom break. Respondents cannot be held liable for

failing to contest allegations that Hope never made.

What evidence there is in the record points to the

opposite conclusion - that Hope was not denied a bath-

room break. Regulation 429 entitled Hope to hourly rest-

room breaks. App. 103. The activity log for May 11 shows

that the officers offered him restroom breaks every fifteen

minutes. App. 39. In the absence of even a scintilla of

evidence to the contrary, it must be assumed that the

prison officers complied with prison policy, treated Hope

as they had in the past, and permitted him to use the

bathroom.

Third, the court of appeals saddled respondents with

responsibility for every wrongful act alleged on the part

of any prison officer in the case. The court’s use of

passive voice in its description of facts (e.g., Pet. App.

2-3) and in its statement of conclusions (e.g., Pet. App. 4

(“Hope’s Constitutional Rights Were Violated”)) enabled

it to elide the fact that Hope never alleged that Pelzer,

McClaran, and Gates did anything other than initially put

Hope on the restraining bar. The court did not limit its

constitutional analysis to respondents’ alleged involve-

ment. The court chronicled every misdeed alleged by

Hope (and some not alleged by Hope) in the course of

making its constitutional ruling. The court even charged

respondents — low-ranking officers without law degrees

or involvement in the making of DOC policy - with

constructive awareness of a 1994 U.S. Department of Jus-

tice (DOJ) report opining that the restraining bar was

unconstitutional. Pet. App. 6.

Petitioner and his amici have used a similar tactic,

citing findings from other cases brought against different

defendants concerning use of the restraining bar. See,

e.g., Brief for the United States 3-4. In particular, they cite

the opinion in Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D.

Ala. 1998), a class action brought against the Commis-

sioner of the Alabama DOC to enjoin a number of prac-

tices, including use of the restraining bar. The Austin

opinion is a preliminary ruling, not a final judgment that

the Commissioner has had an opportunity to appeal. The

district court has stayed the case and will not issue final

a ma

judgment until after this case. The court's findings, more-

over, are general, describing an aggregate of alleged

abuses on the part of unnamed prison officers throughout

the state. The court does recount the June 7, 1995 incident

involving Larry Hope, but discusses only the allegations

made against the unnamed officers - again, not the

respondents - who allegedly taunted Hope while he was

on the bar and denied him water. Those findings cannot

be attributed to respondents, much less have preclusive

effect against respondents under any theory of collateral

estoppel.

6. In the eight Section 1983 cases that counsel have

been able to find in which an inmate sued an Alabama

prison officer for handcuffing him to a stationary object

for refusing to work, the district courts held that the

restraint did not violate the Eighth Amendment. Four of

these involved use of the restraining bar. Dale v. Murphy,

No. CV-85-1091-H-S (S.D. Ala. 1986) (light pole); Wil-

liamson v. Anderson, No. CV-92-H-675-N (M.D. Ala. 1993)

(fence); Hollis v. Folsom, No. C V-94-T-0052-N (M.D. Ala.

1994) (fence); Vinson v. Thompson, No. CV-94-A-268-N

(M.D. Ala. 1994) (restraining bar); Ashby v. Dees, No.

CV-94-U-0605-NE (N.D. Ala. 1994) (fence); Lane v. Findley,

No. CV-93-C-1741-S (N.D. Ala. 1994) (restraining bar);

Kimble v. Hightower, No. CV-95-B-1328-S (N.D. Ala. 1996)

(restraining bar); Johnston v. Hopper, No. CV-97-N-937-NE

(N.D. Ala. 1998) (restraining bar; Gates was a co-defen-

dant). In one other case involving the restraining bar, the

district court dismissed the complaint on qualified immu-

nity grounds. Whitson v. Gillikin, No. CV-93-H-1517-NE

(N.D. Ala. 1994).

The only case of which counsel are aware (prior to

this one) in which a court has held that use of the

restraining bar was unconstitutional was the class action

in Austin v. Hopper. Austin was decided in 1998, three

years after the events in this case, not in 1995, as sug-

gested by the ACLU in its brief (pp. ), 22-24). The Austin

court did not rule, moreover, that the restraining bar or

Regulation 429 was unconstitutional per se. Rather, the

problem the court found was that many Alabama prison

officers were not using the restraining bar in accordance

with Regulation 429: e.g., by denying inmates water

while on the bar, by putting prisoners on the bar for

actions that did not constitute a refusal to work or a

disruption of the work crew, by not first checking

whether the inmate had a medical stop-up. 15 F. Supp. 2d

at 1239-48. The court gave the DOC Commissioner the

opportunity to revise its restraining bar policy to include

procedural safeguards to ensure that prison officers

would use the bar in the manner that Regulation 429

already required. T< Commissioner has done so, filing

an extensive revised policy that proposes, inter alia, to

install surveillance cameras to monitor how the officers

treat inmates on the post. The Commissioner awaits a

decision on that policy by the district court, which, as

noted, has stayed the case pending resolution of Hope v.

Pelzer. Until the district court rules on the revised policy

in Austin, the court has directed the Commissioner to halt

use of the restraining bar in Alabama prisons. 15

F. Supp.2d at 1273.

SUMMARY OF ARGUMENT

1. Respondents Pelzer, McClaran, and Gates did not

subject petitioner Hope to cruel and unusual punishment

by putting him on the restraining bar in compliance with

Regulation 429. To prevail on his Eighth Amendment

conditions-of-confinement claim, Hope must show that

respondents acted with “deliberate indifference” to his

health and safety, and that they denied him the “minimal

civilized measure of life’s necessities.” All that Pelzer,

McClaran, and Gates are alleged to have done in this case

is twice put Hope on the restraining bar because he

disrupted work crews. In doing so, they followed Ala-

bama Department of Corrections Regulation 429. Hope

has not alleged that they departed from Regulation 429 in

any way. Under Regulation 429, Hope was entitled to

food, water, bathroom breaks, and medical attention

while on the bar. He was under constant supervision. At

any time, if he agreed to return to work without disrup-

tion, he coukt get off the bar. These circumstances estab-

lish neither the subjective nor the objective prong of the

test for whether a condition of confinement violates the

Eighth Amendment.

2. Even if it turns out that Pelzer, McClaran, and

Gates did violate the Eighth Amendment, they did not

viola‘e a right that was “clearly established” at the time

of the events in this case, so as to overcome their quali-

fied immunity. To be “clearly established,” a constitu-

tional or statutory right must either be obvious from the

text or arise from judicial precedent that is “materially

similar” to the case at hand. Material similarity is a

workable and flexible standard of comparison that

ensures a public official has fair warning of his or her

legal responsibilities in a particular situation. The more

fact-intensive the governing legal standard, the more sim-

ilarity is required between the present case and a past

one, in order to defeat the public official’s qualified

immunity. The conditions-of-confinement test is a very

fact-intensive standard. Hope thus must demonstrate a

high degree of similarity between his allegations in this

case and the facts of a prior case holding that a condition

of confinement violated the Eighth Amendment.

Far from making clear that use of the restraining bar

in accordance with Regulation 429 violated the Eighth

Amendment, the relevant case law in 1995 indicated that

it was constitutional. The Eleventh Circuit and other

courts of appeals have refused to find Eighth Amend-

ment violations or have awarded qualified immunity in a

number of prison cases presenting conditions of physical

restraint more prolonged and more severe than Hope

faced by being on the restraining bar. In six pre-1995

Section 1983 cases that counsel has been able to locate in

which an inmate sued an Alabama prison officer for

handcuffing him to a stationary object, the district courts

held that the restraint did not violate the Eighth Amend-

ment. Two of these cases involved use of the restraining

bar. Especially because Pelzer, McClaran, and Gates were

following a DOC policy that authorized them to use the

restraining bar in the manner that they did, they are

entitled to qualified immunity from this lawsuit.

3. This Court should not remand for discovery. Peti-

tioner’s counsel has had two and a half years to discover

facts and make more specific allegations against respon-

dents. One of the purposes of qualified immunity is to

dispose .of cases at an early stage, so as to minimize the

expense and chilling effect that litigation poses to public

officials. That purpose would be defeated if Hope were

given even more time to engage in discovery.

ARGUMENT

I. Pelzer, McClaran, and Gates Did Not Violate the

Eighth Amendment by Putting Hope on the

Restraining Bar in Accordance With Regulation 429.

This Court granted the petition for writ of certiorari

on two questions, both related to whether respondents

Pelzer, McClaran, and Gates enjoy qualified immunity

from petitioner’s Section 1983 suit. Last Term in Saucier v.

Katz, however, this Court made clear that, in Section 1983

cases, the question of constitutionality must be addressed

before the question of qualified immunity. This Court

framed the inquiry as follows: “Taken in the light most

favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitu-

tional right?” 121 S. Ct. 2151, 2156 (2001). “If no constitu-

tional right would have been violated were the

allegations established, there is no necessity for further

inquiries concerning qualified immunity.” Id.

Hope asserts that the respondent prison officers sub-

jected him to cruel and unusual punishment by putting

him on the restraining bar. “[I]f the pain inflicted is not

formally meted out as punishment by the statute or the

sentencing judge,” however, and is instead alleged to

result from a condition of confinement, “some mental

element must be attributed to the inflicting officer before

it can qualify” as an Eighth Amendment violation. Wilson

v. Seiter, 501 U.S. 294, 300 (1991). Hope thus must show

not only that Pelzer, McClaran, and Gates inflicted pain

that was “sufficiently serious,” but also that they exhib-

ited “deliberate indifference” to his health and safety.

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotations

omitted); Wilson, 501 U.S. at 303; Estelle v. Gamble, 429

U.S. 97, 105-06 (1976) (inadvertent failure to provide med-

ical care to inmate not cruel and unusual).

Pelzer’s only alleged involvement in this case is that

he transported Hope back to the prison on May 11, 1995,

and may also have put Hope on the bar that day.

McClaran’s only alleged involvement in this case is that

he ordered Hope be put on the bar on May 11; he may

also have helped put Hope on the bar on June 7, 1995.

Gates’s only alleged involvement is that he helped put

Hope on the bar on June 7. The sum total of these allega-

tions is that respondents put Hope on the bar twice but

had nothing to do with him thereafter. The mere act of

putting Hope on the bar - in compliance with DOC policy

and on the assumption that he would remain on the bar

only so long as he refused to comply with his obligation

to work - does not constitute a violation of either the

subjective or the objective prong of the Farmer/Wilson

test.

A. Pelzer, McClaran, and Gates did not act with

“deliberate indifference” to Hope’s health and

safety by putting him on the restraining bar in

accordance with Regulation 429.

Farmer v. Brennan made clear that the standard for

“deliberate indifference” is “subjective recklessness as

used in the criminal law.” 511 U.S. at 839. This means that

“a prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of

confinement unless the official knows of and disregards

an excessive risk to inmate health or safety.” Id. at 837.

“(T]he official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists, and he must also draw that inference.” Id.

The record is devoid of evidence that Pelzer,

McClaran, or Gates had the necessary awareness or drew

the required inference. Petitioner asserts that the restrain-

ing bar exposed him to the risks of pain, dehydration,

sunburn, wrist injury, and harassment. Pet. Br. 19. Putting

Hope on the bar in the manner prescribed by Regulation

429 exposed him, at best, to a marginal risk that these

events would come to pass. Compare Fuentes v. Wagner,

206 F.3d 335, 340 (3rd Cir. 2000) (strapping inmate to

chair for eight hours in accordance with prison policy,

causing “loss of feeling in his hands and feet, cuts on his

wrists and ankles where he had been handcuffed and

shackled, leg cramps, discomfort in his arms, restricted

breathing, and back pain,” did not constitute deliberate

indifference).

Both times Pelzer, McClaran, or Gates put Hope on

the bar, a nurse checked Hope’s medical condition first.

Other prison officers were on hand to watch Hope once

he was on the bar. Pelzer, McClaran, and Gates had no

reason to assume that these officers would not provide

him with food, water, bathroom breaks, and everything

else required by Regulation 429. They had no reason to

believe that Hope would not be permitted to leave the bar

as soon as he agreed to return peaceably to work. Most of

all, they had no reason to anticipate the alleged failure of

the other officers to provide Hope with water during one

three-hour stretch, or the alleged harassment of Hope by

the two officers who kicked his water away and gave it to

the dogs. Under these conditions, the risks to Hope of

pain, dehydration, sunburn, wrist injury, and harassment

were hardly greater and perhaps even less than that faced

by his fellow inmates who dutifully worked in the sun all

day.

In stretching to find evidence of deliberate indif-

ference on the part of respondents, the court of appeals

took judicial notice of a DOJ report to the Governor of

Alabama, regarding the use of the restraining bar at

Easterling Correctional Facility in southern Alabama. Pet.

App. 6. The Alabama DOC replied to DOJ, acknowledg-

ing that if used improperly, the restraining bar could

threaten inmate health and safety, but maintaining that

the procedures set forth in Regulation 429 negated that

threat. Austin, 15 F. Supp. 2d at 1249. The court of appeals

held that “this exchange between the DOJ and the DOC

demonstrates that the DOC was aware of the substantial

risk of harm created by the use of the hitching post for

prolonged periods of time.” Pet. App. 7.

Even if awareness of risk could be imputed to DOC

from a non-binding legal opinion with which it pointedly

and reasonably disagreed, it is beyond comprehension

that such awareness could in turn be imputed to respon-

dents. Pelzer, McClaran, and Gates worked at Limestone

Facility in northern Alabama, over 260 miles away from

the Easterling Facility that DOJ inspected. They were

low-ranking officers, whose job descriptions required no

more than a high school degree; and their input into DOC

policy-making would have been minimal at best. That

they would have known anything about the DOJ report is

rank speculation.

B. Pelzer, McClaran, and Gates did not deny Hope

the “minimal civilized measure of life’s neces-

sities” by putting him on the restraining bar in

accordance with Regulation 429.

“Because routine discomfort is ‘part of the penalty

that criminal offenders pay for their offenses against soci-

ety,, extreme deprivations are required to make out a

conditions-of-confinement claim.” Hudson v. McMillian,

503 U.S. 1, 9 (1992) (excessive force against prisoner may

be cruel and unusual if it inflicts wanton and unnecessary

pain though no serious injury) (quoting Rhodes v. Chap-

man, 452 U.S. 337, 347 (1981) (double-bunking of inmates

in single-occupancy cells not cruel and unusual)). “[O}nly

those deprivations denying ‘the minimal civilized mea-

sure of life’s necessities’ are sufficiently grave to form the

basis of an Eighth Amendment violation.” Hudson, 503

U.S. at 9 (quoting Rhodes, 452 U.S. at 347). This proposi-

tion “must draw its meaning from the evolving standards

of decency that mark the progress of a maturing society.”

Trop v. Dulles, 356 U.S. 86, 101 (1958) (cruel and unusual

to require denationalization of certain wartime deserters).

“Today the Eighth Amendment prohibits punishments

which, although not physically barbarous, ‘involve the

unnecessary and wanton infliction of pain,’ or are grossly

disproportionate to the severity of the crime.” Rhodes, 452

U.S. at 346 (citations omitted).

1. “Outside the context of capital punishment, suc-

cessful challenges to the proportionality of particular

sentences have been exceedingly rare.” Rummel v. Estelle,

445 U.S. 272 (1980) (mandatory life sentence under

recidivism statute for obtaining $120.75 by false pretenses

not cruel and unusual). The principle “does not require

strict proportionality between crime and sentence” but

forbids only “extreme sentences that are ‘grossly dispro-

portionate’ to the crime.” Harmelin v. Michigan, 501 U.S.

957, 999 (1991) (Kennedy, J., joined by O’Connor and

Souter, JJ.) (upholding sentence to life without parole for

conviction of possession of more than 650 grams of

cocaine). Assuming that the proportionality requirement

applies to discipline imposed for violation of internal

prison procedure, it is difficult to imagine a measure

more proportionate than one that the prisoner can termi-

nate at his own initiative simply by agreeing to do what

he was supposed to be doing in the first place. In addi-

tion, the temporary discomfort of being cuffed to a bar

was not out of proportion to Hope’s misdeeds in this

case.

2. The real question, then, is whether use of the

restraining bar as prescribed by Regulation 429 inflicts

“unnecessary and wanton infliction of pain.” Hope and

amicus American Civil Liberties Union (ACLU) contend

that the restraining bar is a modern-day pillory. This is a

nice sound bite but a specious legal and historical anal-

ogy. The pillory was a horizontal, split, wooden frame

with holes holding the hands level with and parallel to

the neck in a locked, forward position. It was used to

stretch the neck, permit the prisoner’s ears to be nailed

to the board, or otherwise subject the prisoner to

public humiliation. See http://www.getchwood.com/

punishments/curious/chapter-4.html; http: / /onlinedic-

tionary.datasegment.com/word/Pillory. It was a truly

“unusual” form of punishment that would likely be

deemed “cruel” as well under any conceivable conditions

of modern use. The restraining bar, by contrast, consists

of a pair of handcuffs and a chest-high horizontal post.

“Handcuffs, shackles and irons are not per se unconstitu-

tional.” ACLU Br. 20. Even the court of appeals agreed

that the restraining bar could be used “for a period of

time” in order “to quell a threat or restore order.” Pet.

App. 11. The same cannot be said of the pillory.

Turning to modern precedent, the ACLU suggests

that “prolonged physical restraint” violates the Eighth

Amendment in two circumstances: (1) when “moven.ent

is denied” and “the health of the individual is threai-

ened,” Br. 20 (quoting French v. Owens, 777 F.2d 1250, 1255

(7th Cir. 1985)); or (2) when the restraint “could [not]

plausibly have been thought necessary” to achieve some

legitimate penological interest. Br. 20-21 (quoting Whitley

v. Albers, 475 U.S. 312, 319 (1986)). Respondents do not

quarrel with this basic legal framework, but simply point

out that neither circumstance was present in this case.

First, Pelzer, McClaran, and Gates did not immobilize

Hope or leave him in a contorted position that in any way

threatened his health. He could move his head, his shoul-

ders, his torso, his legs, and most of his arms. He was

able to stand fully erect and lean his shoulders against

the bar to take some pressure off the muscles in his arms

and chest. The second time he was on the bar, he was

cuffed to the vertical pole at the end of the restraining

bar, against which he could lean his entire body. App. 55.

Hope was also permitted bathroom breaks, during which

he was able to move about and stretch, and he could get

off the bar any time he agreed to return to work. Even the

bad acts alleged on the part of the other non-defendant

officers - while inexcusable and clearly a violation of

Regulation 429 — did not subject Hope to a great health

risk. Hope alleges that the other officers deprived him of

water for at most three hours, leaving him “thirsty” but

not by his account dehydrated or faint. App. 11, 47. In

fact, the only injuries that Hope contends he actually

suffered that day were sunburn and sore wrists that

“appeared to be bruised” and remained swollen for a day

thereafter. App. 48, 50. These pains are not dissimilar in

kind or in degree to those likely suffered by his fellow

inmates who did go cooperatively to work.

The ACLU’s cases, and others, establish that a far

more debilitating and health-threatening form of restraint

is necessary to violate the Eighth Amendment. In French,

the Seventh Circuit rejected a prisoner’s claim that lack of

regular exercise violated the Eighth Amendment and

indicated that prison officials would have to restrain a

prisoner’s movement to the point that his muscles were

“allowed to atrophy” in order to violate the Eighth

Amendment. 777 F.2d at 1255. In Wells v. Franzen, the

Seventh Circuit held that shackling a prisoner by his four

limbs to a bed for nine days straight, without bathroom

breaks or regular access to water, did not violate the

Eighth Amendment. 777 F.2d 1258, 1260-61, 1264. The

court characterized the plaintiff's complaints of abra-

sions, bruises, and restricted blood flow as “minor dis-

comfort” that did not establish an Eighth Amendment

violation of “wanton infliction of pain” by officials. Id. at

1264. In Key v. McKinney, the Eighth Circuit held that

putting an inmate in handcuffs and leg shackles for

twenty-four hours for throwing water on an officer did

not violate the Eighth Amendment. 176 F.3d 1083, 1086

(8th Cir. 1999). And in Hartsfield v. Vidor, the Sixth Circuit

held that restraining a prisoner to a bed for two eight-

hour periods, during which time he was denied fresh

water or bathroom breaks and was forced to sit in his

own urine, did “not fall below the minimal standards of

civilized society.” 199 F.3d 305, 309-10 (1999) (citing

Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

The Eleventh Circuit has also rejected claims of pro-

longed physical restraint involving far harsher conditions

than those alleged by Hope, although in a slightly differ-

ent legal context — allegations of excessive force in viola-

tion of the Eighth Amendment. In these cases, officers

had to restrain prisoners to prevent them from hurting

themselves or others. In Campbell v. Sikes; the Eleventh

Circuit held that leaving a mentally disturbed prisoner in

an L-shaped restraint for periods of 27, 1'/2, 5, 16, and

66'/2 hours did not violate the Eighth Amendment. 169

F.3d 1353, 1375-78 (1999). And in Williams v. Burton, the

Eleventh Circuit held that gagging and binding a violent

prisoner in four-point restraints for twenty-eight consec-

utive hours did not violate the Eighth Amendment. 943

F.2d 1572, 1574 (1991).

To be sure, Hope was uncomfortable on the restrain-

ing bar and became more uncomfortable the longer he

refused to work. But that was the whole point of the

exercise: to induce Hope to return peaceably to work.

Unlike the cases above, Hope held the keys to his release

in his own pocket, and the maximum time he could have

spent on the bar for refusing to work was a single work

day. The Eighth Amendment “does not mandate comfort-

able prisons,” Rhodes, 452 U.S. at 349 - and permits prison

conditions that are “restrictive and even harsh,” Farmer v.

Brennan, 511 U.S. at 833 (quoting Rhodes, 452 U.S. at 347) -

especially when the inmate can remove the source of his

discomfort just by complying with his obligation to work.

Second, the restraining bar has ample penological jus-

tification. This Court has acknowledged “rehabilitation”

as well as “internal security” as valid penological objec-

tives. Pell v. Procunier, 417 U.S. 817, 822-23 (1974). Work

squads. are an important part of the rehabilitative pro-

gram of the Alabama correctional system, and the

restraining bar is an effective means of impelling inmates

to work. Officers cannot just return unruly inmates to the

prison. That would in effect reward the inmates for their

misbehavior by giving them the day off. Officers also

cannot segregate every inmate who disrupts a work crew,

because Alabama prisons are filled to capacity and do not

have many spare cells. Segregation cells also pose inde-

pendent constitutional problems. Hutto v. Finney, 437 U.S.

678, 687 (1978) (leaving prisoners in segregated cells for

extended periods of time was cruel and unusual). Officers

may charge inmates with rule violations — resulting in the

potential loss of privileges such as store and telephone

use, visitation, and good-time credit — but not all inmates

earn those privileges. Furthermore, these charges require

due process hearings and are not a quick solution to the

immediate concerns of restoring discipline and showing

other inmates that cooperation is required on work

squads.

Petitioner and the ACLU urge this Court to give

constitutional weight to the opinions of their experts

condemning the use of the restraining bar. While the

opinions of experts may be instructive in some areas,

“they simply do not establish the constitutional minima;

rather, they establish goals recommended by the organi-

zation in question.” Rhodes, 452 U.S. at 348 n. 13 (quota-

tion omitted). Petitioner and the ACLU also urge this

Court to give weight to the fact that Alabama is the only

state currently using the restraining bar. They do not

show, however, whether other states have considered and

rejected use of the bar or whether other states once used

the bar but now do not. Compare Ford v. Wainwright, 477

U.S. 399, 408 n. 2 (1986) (noting that twenty-six states had

enacted statutes explicitly forbidding execution of

insane); Thompson v. Oklahoma, 487 U.S. 815, 829 & n. 30

(1988) (observing that eighteen states had enacted stat-

utes explicitly establishing minimum age for capital pun-

ishment). “Absent a constitutionally imposed uniformity

inimical to traditional notions of federalism, some State

will always bear the distinction of treating particular

offenders more severely than any other State.” Rummel,

445 U.S. at 282. “Diversity not only in policy, but in the

means of implementing policy, is the very raison d’etre of

our federal system.” Harmelin, 501 U.S. at 990 (Scalia, J.,

joined by Rehnquist, C.J.). See also Harris v. Thigpen, 941

F.2d 1495, 1517 (11th Cir. 1991) (upholding Alabama prac-

tice of segregating all inmates with AIDS against consti-

tutional challenge, when Alabama was the only state

following that practice).

This Court has acknowledged that “the problems that

arise in the day-to-day operation of a corrections facility

are not susceptible of easy solutions.” Bell v. Wolfish, 441

U.S. 520, 547 (1979) (double-bunking of inmates in single-

occupancy cells did not violate due process).

Prison administrators therefore should be

accorded wide-ranging deference in the adop-

tion and execution of policies and practices that

in their judgment are needed to preserve inter-

nal order and discipline and to maintain institu-

tional security. Such considerations are

peculiarly within the province and professional

expertise of corrections officials, and, in the

absence of substantial evidence in the record to

indicate that the officials have exaggerated their

response to these considerations, courts should

ordinarily defer to their expert judgment in such

matters. . . . [J]udiciaul deference is accorded not

merely because the administrator orcinarily

will, as a matter of fact in a particular case, have

a better grasp of his domain than the reviewing

judge, but also because the operation of our

correctional facilities is peculiarly the province

of the Legislative and Executive Branches of our

Government, not the Judicial.

Id. at 547-48 (citations omitted). Respondents urge this

Court not to assume that their superiors in .+he Alabama

Department of Corrections are insensitive to the values

that animate the Eighth Amendment “or to the perplex-

ing sociological problems of how best to achieve the goals

of the penal function in the criminal justice system.”

Rhodes, 452 U.S. at 352. This Court has repeatedly admon-

ished that cases such as this one pose questions regarding

constitutional requirements, and that this Court should

provide judicial answers to those hard questions rather

than judicial opinions as to how best to operate prisons.

Id. at 351; Whitley v. Albers, 475 U.S. 312, 321-22 (1986)

(shooting prisoner while quelling riot without prior ver-

bal warning was not cruel and unusual); Bell v. Wolfish,

441 US. at 539.

The teaching of this Court’s conditions-of-confine-

ment jurisprudence is that no part of prison life is ideal,

nor can it be. In the judgment of the Alabama Department

of Corrections, use of the restraining bar as prescribed in

Regulation 429 was a cost-effective, safe and relatively

pain-free way to impel inmates to work. Pelzer,

McClaran, and Gates did not offend “evolving standards

of decency” by deferring to the judgment of their

employer and putting Hope on the bar in accordance

with Regulation 429.

II. Even If This Court Determines That Pelzer,

McClaran, and Gates Violated the Eighth Amend-

ment by Putting Hope on the Restraining Bar, They

Are Entitled to Qualified Immunity from This Suit.

Respondents Pelzer, McClaran, and Gates did not

violate Hope’s “clearly established” rights. They could

not have been reasonably expected to anticipate that put-

ting him on the restraining bar - in compliance with an

administrative regulation that afforded Hope food, water,

bathroom breaks, and medical attention and that allowed

Hope to determine for himself when he would be

released - constituted a violation of the Eighth Amend-

ment. Prison officers could not do their jobs if every

action they took in accordance with department pro-

cedure were subject to that kind of doubt. Respondents

are accordingly entitled to qualified immunity from this

lawsuit.

A. “Material similarity” is a workable and flexible

standard that advances the purposes of this

Court’s qualified immunity doctrine.

The first question this Court directed the parties to

address is whether state officials “are entitled to qualified

immunity unless they have violated statutory or constitu-

tional rights ‘clearly established’ by a case presenting

facts ‘materially similar’ to those in the plaintiff’s case.”

Except for extreme cases, in which the right violated is

readily apparent without the aid of judicial precedent,

respondents submit that the question should be answered

in the affirmative. The requirement of “material sim-

ilarity” gives public officials the necessary elbow room to

perform their duties zealously. It protects them from the

expenses of litigation, keeps their energy focused on

pressing public issues, and diminishes the chilling effect

of the threat of lawsuits on people’s willingness to seek

public office. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

At the same time, it affords a needed measure of disci-

pline when an official takes action “not distinguishable in

a fair way” from other action that has been declared

unlawful by a court. Saucier v. Katz, 121 S. Ct. 2151, 2156

(2001).

Qualified immunity doctrine requires that questions

of constitutional law be viewed from the perspective of

the “reasonable official.” Saucier, 121 S. Ct. at 2156; see

also Anderson v. Creighton, 483 U.S. 635, 640 (1987). Were

it otherwise, liability could not be calibrated to the proper

level of deterrence - “encouraging the vigorous exercise

of official authority,” Butz v. Economou, 438 U.S. 478, 506

(1978), while at the same time discouraging violations of

individual rights. To be effective, the doctrine must

enable government officials “reasonably [to] anticipate

when their conduct may give rise to liability for dam-

ages.” Anderson, 483 U.S. at 646 (quotations omitted).

“The relevant, dispositive inquiry,” therefore, “in

determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”

Saucier, 121 S. Ct. at 2156. When the right is clearly

established, holding public officials personally liable for

violations of that right has adequate deterrent effect.

When it is not clearly established, holding officials per-

sonally liable for violations of the right would over-deter

and discourage the “principled and fearless decision-

making” that is desired of public officials. Wood v. Strick-

land, 420 U.S. 308, 319 (1975); See also Harlow v. Fitzgerald,

457 U.S. 800, 807 (1982). This is especially true in the

prison context, where public officials “must often act

swiftly and firmly at the risk that action deferred will be

futile or constitute virtual abdication” of their respon-

sibilities. Scheuer v. Rhodes, 416 U.S. 232, 246 (1974). This

Court has thus declared that qualified immunity protects

“all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 342 (1986).

“Material similarity” is a workable and flexible stan-

dard that vindicates these purposes. The requirement of

“similarity” between past cases and the present ensures

that the public official receives warning of his or her legal

responsibility. The requirement of “materiality” fine-

tunes the necessary element of similarity to ensure that

the warning is “fair” without requiring the sort of precise

factual identity that would render Section 1983 meaning-

less. Saucier, 121 S. Ct. at 2157 (qualified immunity avail-

able unless facts are “not distinguishable in a fair way”

from the facts of a previous case); cf. United States v.

Lanier, 520 U.S. 259, 265-67 (1997). As required by quali-

fied immunity doctrine, it answers the question “how

much similarity is required” from the perspective of the

public official, pegging the degree of similarity required

to the ability of the “reasonable official” to detect that

similarity in the immediate circumstances with which he

or she is presented. In this sense, the concept of material

similarity in qualified immunity doctrine may draw help-

ful meaning from the well-developed concept of material

misrepresentation in fedexal securities law, which

answers the question “how much misrepresentation is

required” from the perspective of the reasonable investor.

Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988); Affiliated

Ute Citizens of Utah v. United States, 406 U.S. 128, 153-54

(1972). Habeas jurisprudence, as suggested by amici Mis-

souri et al., may also provide significant guidance.

Their stated positions notwithstanding, petitioner

and his amici all advocate some sort of material similarity

standard. Indeed, petitioner concedes that a requirement

of material similarity “might not skew the qualified

immunity inquiry if the requirement were interpreted

with appropriate flexibility.” Br. 17. Petitioner and the

ACLU’s disagreement with the Eleventh Circuit’s mate-

rial similarity standard is not one of kind but of degree.

They purport to draw but one principled distinction

between their standard and that of the Eleventh Circuit.

They charge that the Eleventh Circuit uses material sim-

ilarity to avoid granting immunity in cases with outra-

geous facts like United States v. Lanier, where the rights

violation is so blatant it need not correspond to the facts

of a particular judicial precedent in order to be charge-

able to the defendant public official. 520 U.S. 259

(state judge prosecuted under 18 U.S.C. 242 for sexually

assaulting several women in his chambers).

Respondents submit that petitioner and his amici,

especially the ACLU, have created a straw man in their

characterization of Eleventh Circuit precedent on mate-

rial similarity. The Eleventh Circuit acknowledges, and

respondents readily concede, that a rights violation may

sometimes be so plain that material similarity to a prior

case is unnecessary to defeat immunity. Public officials

are charged with knowledge not just of decisional law but

of constitutional and statutory text as well. To use an

example close to home, prison officers are as likely to be

familiar with the constitutional phrase “Cruel and

Unusual Punishment” as they are with the facts of any

given Eighth Amendment case. “Occasionally the words

of a federal statute or federal constitutional provision will

be specific enough to establish law applicable to particu-

lar circumstances clearly and to overcome qualified

immunity even in the absence of case law.” Lassiter v.

Alabama A&M University, 28 F.3d 1146, 1150 n. 4 (11th Cir.

1994). In extreme cases, an official may stray “ ‘so far

beyond the hazy border’ between constitutional and

unconstitutional conduct” that the official “had to know

he was violating the Constitution even without case law

on point.” Priester v. City of Riviera Beach, 208 F.3d 919, 926

(11th Cir. 2000) (quoting Smith v. Mattox, 127 F.3d 1416,

1419 (11th Cir. 1997)).

In most Section 1983 cases, however, the right

claimed does not spring obviously from the constitutional

or statutory text, and the question whether the right

exists is not one that can be answered without the aid of

judicial elaboration. A plaintiff who seeks to defeat quali-

fied immunity in such cases cannot just allege violation of

an “abstract” or “general right”, but must show that the

constitutional right he asserts was clearly established in a

“particularized, and hence more relevant, sense.” Ander-

son v. Creighton, 483 U.S. 635, 639-40 (1987). The issue,

then, is the degree of similarity that is required between

past and current cases. That is the issue addressed by the

concept of materiality.

The requirement of materiality means that, the more

fact-intensive the governing legal standard, the more sim-

ilar the instant case must be to a past one for the reason-

able public official to have fair warning of his legal

responsibility. Sometimes the rule that emerges from

decisional law may be discernible at a high enough level

of abstraction that public officials can be expected to

know and apply that rule in a wide variety of cases. Cf.

Lanier, 520 U.S. at 271 (“[A] general constitutional rule

already identified in the decisional law may apply with

obvious clarity to the specific conduct in question”). This

is not an exception to the material similarity standard but

rather a healthy example of its flexibility in application.

The ACLU (Br. 5-7) offers the example of racial discrimi-

nation, which respondents accept. If Hope had charged,

for example, that certain officers told him they put him

on the restraining bar because of his race, the officers

would likely not be entitled to qualified immunity,

regardless of whether there was a previous case in which

prison officers had been held liable for using the restrain-

ing bar in a manner that was racially discriminatory. The

only material fact making the hypothetical case similar to

countless past ones would have been the racial discrimi-

nation on the part of the officers. The use of the restrain-

ing bar to accomplish the discrimination would have

been immaterial. A reasonable official would have seen

the similarity regardless.

Respondents submit that the question whether a con-

dition of confinement is cruel and unusual rests far to the

fact-intensive side of the spectrum. It inevitably requires

consideration of a wide variety of circumstances and the

balance of competing individual and public interests.

Nationwide, the courts of appeals almost always award

qualified immunity to prison officials in conditions-of-

confinement cases. See, e.g., Thomas v. Ramos, 130 F.3d 754

(7th Cir. 1998) (official who allegedly refused to allow

inmate to exercise in yard while he was confined in

disciplinary segregation for 70 days was entitled to quali-

fied immunity); Osolinski v. Kane, 92 F.3d 934 (9th Cir.

1996) (prison officials who failed to repair oven that

injured an inmate were entitled to qualified immunity

against inmate’s Eighth Amendment claim); Prater v.

Dahm, 89 F.3d 538 (8th Cir. 1996) (prison officials who

failed to protect inmate from an attack from a fellow

inmate were entitled to qualified immunity against

inmate’s Eighth Amendment claim); Seltzer-Bey v. Delo, 66

F.3d 961 (8th Cir. 1995) (prison officials were entitled to

qualified immunity from inmate’s claim that his place-

ment in a stripped cell for two days without clothing,

bedding, or running water, with a concrete floor, a con-

crete slab for a bed, and cold air blowing on him constitu-

ted cruel and unusual punishment); Adkins v. Rodriguez,

59 F.3d 1034 (10th Cir. 1995) (prison official who allegedly

sexually harassed a female inmate and appeared in her

cell without authorization was entitled to qualified

immunity against the inmate’s Eighth Amendment

claim); Williams v. Delo, 49 F.3d 442 (8th Cir. 1995) (prison

officials were entitled to qualified immunity against

inmate’s claim that the conditions of his stripped cell

violated Eighth Amendment); Rodgers v. Jabe, 43 F.3d 1082

(6th Cir. 1995) (prison officials were entitled to qualified

immunity against inmate's allegations he was denied

adequate outdoor exercise in violation of his Eighth

Amendment rights); Lopez v. Robinson, 914 F.2d 486 (4th

Cir. 1990) (prison officials were entitled to qualified

immunity from inmates’ claims that alleged inadequate

ventilation system, incident in which inmates were

locked down for 12 to 24 hours without running water in

their cells, alleged inadequacy of hot water for showers,

alleged cold cells during the winter, and the practice of

double-celling inmates violated Eighth Amendment); Bir-

rell v. Brown, 867 F.2d 956 (6th Cir. 1989) (prison officials

were entitled to qualified immunity from inmate’s claims

that under-staffing of institution and practice of housing

inmates before desired or planned renovations at the

facility could be completed violated the Eighth Amend-

ment); Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) (prison

officials were entitled to qualified immunity against

inmate’s claims that “summary punishments,” a shooting

by a trustee guard, and a stabbing by a fellow inmate

amounted to Eighth Amendment violations); but see

Marsh v. Butler County, 268 F.3d 1014 (11th Cir. 2001)

(sheriff who failed to address deteriorating prison condi-

tions that for the most part had been identified as Eighth

Amendment violations in prior cases was not entitled to

qualified immunity). This Court should accordingly

require a much higher degree of similarity between this

case and past ones than petitioner and his amici urge is

necessary to deprive respondents of their qualified

immunity.

B. Use of the restraining bar in accordance with

Regulation 429 was neither patently cruel and

unusual nor materially similar to any form of

punishment deemed cruel and unusual by a

court.

The second question the Court directed the parties to

address is the specific one: whether putting Hope on the

restraining bar “under the circumstances that must be

taken as true at the summary judgment state of this case”

violated Hope's “clearly established” rights, thereby

depriving Pelzer, McClaran, and Gates of qualified immu-

nity. As argued in Part I, even viewed through the prism

of a summary judgment motion, the record does not

establish that Pelzer, McClaran, and Gates violated any of

Hope’s Eighth Amendment rights, clearly established or

not.

1. This is not the extreme case in which the punish-

ment is patently cruel and unusual. Not even the court of

appeals below held that the restraining bar was uncon-

stitutional in all uses and conceded that it could be used

at least as a means of temporary restraint. App. 9.

2. The relevant case law in 1995 did not come close

to establishing a clear rule that the restraining bar was

unconstitutional when used in accordance with Regula-

tion 429. As noted above, in the 1991 case of Williams v.

Burton, the Eleventh Circuit had held that gagging and

binding a violent prisoner in four-point restraints for

twenty-eight consecutive hours did not constitute exces-

sive force in violation of the Eighth Amendment. 943 F.2d

1572. In two cases that did not involve physical restraint

but rather confinement to a cell for extended periods, the

Eleventh Circuit had also rejected claims under the

Eighth Amendment. Sims v. Mashburn, 25 F.3d 980 (1994)

(confining prisoner to a stripped cell for twenty-nine

hours, disconnecting the water to his toilet, and removing

all his clothing except his undershorts did not constitute

excessive force in violation of the Eighth Amendment);

Ort v. White, 813 F.2d 318 (1987) (confining prisoner to

sally port and denying him water for refusing to work

did not constitute excessive force in violation of the

Eighth Amendment). And in Wells v. Franzen, 777 F.2d

1258 (1985), the Seventh Circuit had held that shackling a

prisoner by his four limbs to a bed for nine days straight,

without bathroom breaks or regular access to water, did

not violate the Eighth Amendment. Id. at 1258, 1260-61,

1264. These cases had all involved prison conditions or

applications of force more severe than the restraining bar,

yet the courts had found no Eighth Amendment viola-

tions.

The 1987 Eleventh Circuit decision in Ort v. White

bears closer attention. The inmate in Ort complained that

a prison officer named Holladay did not allow him to

“drink any water until he began to perform his assigned

_ tasks like the rest of his squad.” 813 F.2d at 320. The court

rejected the inmate’s claim that the denial of water vio-

lated the Eighth Amendment, on reasoning that is appro-

priate to this case:

It is clear from these facts that Ort’s several

refusals to carry the water keg and his selective

work stoppages were spontaneous events occur-

ring while his farm squad was out on field duty.

The late squad, of which Ort seemed a charter

member, remained away from the prison for the

entire day, so Officer Holladay had no one to

whom he could turn over an unruly or recal-

citrant inmate and no way to contain such a

troublemaker or segregate him from the rest of

the squad. These conditions distinguish the pre-

sent situation from being merely the everyday

case of an inmate violating a rule or regulation

while within the prison walls. This scenario dic-

tated that the lone prison officer present on the

scene take some immediate action to maintain

order and discipline among the prisoners in the

field. Holladay’s actions therefore should not be

viewed as punishment in the strict sense, but

instead as necessary coercive measures under-

taken to obtain compliance with a reasonable

prison rule, i.e. the requirement that all inmates

perform their assigned farm squad duties.

813 F.2d at 325. Furthermore, said the court: “All Ort

needed to do before he would be allowed to drink the

water was to perform the work required of all the

inmates on his farm squad.” Id. at 326. He “essentially

had the keys to the water keg in his own pocket.” Id.

“Whenever he agreed to abide by the prison rules, he

would be given water just like everyone else.” Id. The

same was true for Hope in this case.

In the six pre-1995 Section 1983 cases that counsel have

been able to locate in which an inmate sued an Alabama

prison officer for handcuffing him to a stationary object, the

district courts held that the restraint did not violate the

Eighth Amendment. Two of these cases involved use of the

restraining bar. Dale v. Murphy, No. CV-85-1091-H-S (S.D.

Ala. 1986) (light pole); Williamson v. Anderson, No. CV-92-

H-675-N (M.D. Ala. 1993) (fence); Hollis v. Folsom, No. CV-94-

T-0052-N (M.D. Ala. 1994) (fence); Vinson v. Thompson, No.

CV-94-A-268-N (M.D. Ala. 1994) (restraining bar); Ashby v.

Dees, No. CV-94-U-0605-NE (N.D. Ala. 1994) (fence); Lane v.

Findley, No. CV-93-C-1741-S (N.D. Ala. 1994) (restraining

bar). In a 1994 case also involving use of the restraining bar,

the district court dismissed the complaint on qualified

immunity grounds. Whitson v. Gillikin, No. CV-93-H-1517-NE

(N.D. Ala.).

Against all of this authority, petitioner and his amici

contend that the lone 1974 decision in Gates v. Collier, 501

F.2d 1291 (5th Cir.), should have made clear to Pelzer,

McClaran, and Gates that the restraining bar was uncon-

stitutional. To arrive at such a conclusion requires a dra-

matic over-reading of the case. Gates was a lawsuit

against the Superintendent of the Mississippi State Peni-

tentiary for a large number of alleged prison abuses. The

record, according to the Fifth Circuit, was “replete with

innumerable instances of physical brutality and abuse in

disciplining inmates,” including _

administering milk of magnesia as a form of

punishment, stripping inmates of their clothes,

turning the fan on inmates while naked and wet,

depriving inmates of mattresses, hygienic mate-

rials, and adequate food, handcuffing inmates to

the fence and to cells for long periods of time,

shooting at and around inmates to keep them

standing or moving, and forcing inmates to

stand, sit or lie on crates, stumps, or otherwise

maintain awkward positions for prolonged

periods.

Id. at 1306. The Fifth Circuit found these and many other

abusive practices to violate the Eighth Amendment. Peti-

tioner and his amici, including the United States, would

select the phrase “handcuffing inmates to the fence and

to cells for long periods of time” from this thirty-page

opinion and say that it should outweigh the other author-

ity above and be deemed to have provided Pelzer,

McClaran, and Gates with fair warning that they could

not put Hope on the restraining bar.

The Fifth Circuit opinion in Gates says that the Mis-

sissippi prison officers should not have been handcuffing

inmates “to the fence and to cells for long periods of

time” as a form of corporal punishment, but it says

nothing about the justifications they used, the procedures

they followed, the lengths of time they put the prisoners

on the fence, or the positions in which the prisoners were

made to stand. Here, by contrast, McClaran, Pelzer, and

Gates put Hope on the bar pursuant to a written prison

policy that prescribed humane conditions for when and

how the bar could be used. Hope had food, water, bath-

room breaks, and medical attention, and he held the keys

to his release in his own pocket, in that he could get off

the bar any time he agreed to return to work. Hope has

not alleged or presented evidence that McClaran, Pelzer,

or Gates failed to follow this policy in any respect.

In Wilson v. Layne, which affirmec a ruling of quali-

fied immunity for United States marshals who brought

reporters with them into homes during the execution of

arrest warrants, this Court found it “important to our

conclusion” that marshals relied upon a “Marshals Ser-

vice ride-along policy that explicitly contemplated that

media who engaged in ride-alongs might enter private

homes with their cameras as part of fugitive apprehen-

sion arrests.” 526 U.S. 603, 617 (1999). “Such a policy, of

course, could not make reasonable a belief that was con-

trary to a decided body of case law.” Id. The state of law,

this Court held, “was at best undeveloped, and it was not

unreasonable for law enforcement officers to look and

rely on their formal ride-along policies.” Id. Here, an

Alabama DOC policy explicitly authorized Pelzer,

McClaran, and Gates to put Hope on the restraining bar

because he disrupted the work crews. To the extent the

law was developed, it affirmed the constitutionality of

this policy. It was not unreasonable for respondents to

rely upon that policy in taking the actions that they took.

Ill. This Court Should Reject the United States’ Sug-

gestion That It Remand For Petitioner to Engage in

Discovery.

Amicus United States seems to recognize that the

“limited record” (Br. 26) does not establish that Pelzer,

McClaran or Gates violated any of Hope’s clearly estab-

lished rights. They suggest at the end of their brief that

petitioner should be allowed more time for discovery to

develop his case. Thereafter, “if such future discovery

failed to uncover facts that establish a genuine issue as to

whether respondents violated clearly established law,

respondents would be entitled to immunity and summary

judgment.” Br. 26.

One of the chief purposes of qualified immunity is

“to protect public officials from the ‘broad-ranging dis-

covery’ that can be ‘peculiarly disruptive of effective

government.’ ” Anderson, 483 U.S. at 646 n. 6 (quoting

Harlow, 457 U.S. at 817). Indeed, “it cannot be disputed

seriously that claims frequently run against the innocent

as well as the guilty — at a cost not only to the defendant

officials, but to society as a whole.” Harlow, 457 U.S. at

814. These costs include “the expenses of litigation” and

“the danger that fear of being sued will dampen the ardor

of all but the most resolute, or the most irresponsible, in

the unflinching discharge of their duties” as public offi-

cials. Id. (quotation omitted). Accordingly, “qualified

immunity questions should be resolved at the earliest

possible stage.” Anderson, 483 U.S. at 646 n. 6.

Petitioner’s-counsel had two and a half years, from

the time he appeared on petitioner’s behalf to the time of

summary judgment, to discover facts and make more

specific allegations against the respondents. If this Court

were to remand due to a “limited record” that is peti-

tioner’s own responsibility, it would vitiate the protec-

tions that are supposed to be afforded by qualified

immunity. The district court awarded summary judgment

at the appropriate stage in the litigation. The suggestion

of the United States should be rejected.

CONCLUSION

Under any standard of qualified immunity, the com-

bined authority of Eighth Amendment jurisprudence and

Regulation 429 did not “clearly establish” to Pelzer,

McClaran, and Gates that putting Hope on the restraining

bar was unconstitutional. Indeed, respondents submit

that the authority indicates the opposite: use of the bar in

accordance with Regulation 429 was and is constitutional.

For these reasons, the judgment of the court of appeals

should be affirmed.

Respectfully submitted,

Bit Pryor

Attorney General

NATHAN A. FORRESTER

Solicitor General

Avyce S. ROBERTSON

Deputy Solicitor General

MARGARET FLEMING

Assistant Attorney General

ELLEN LEONARD-THOMAS*

Assistant Attorney General

*Counsel of Record

ALABAMA ATTORNEY

GENERAL'S OFFICE

11 South Union Street

Montgomery, Alabama 36130

(334) 353-8699"

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