# Respondents Brief — Hope v. Pelzer

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0496%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 730

## Text

| 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
e

BRIEF FOR THE RESPONDENTS
o

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

BEST AVAILABLE COPY

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

iv

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

Vv

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

vi

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.

Oe

“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.

10
/

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

11

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.

12

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

13

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

14

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

15

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).

16

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.

re

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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/

25

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

26

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

27

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

28

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.

29

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

30

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.

31

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.

32

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

33

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

34

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.

35

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

36

(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

37

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,

38

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

39

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.

40

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

41

_ 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.

42

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,

43

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

44

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.

45

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.

¢

46

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"

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0496%3A07. Public record. Not legal advice.