UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LARRY HOPE, Plaintiff,
v. MARK PELZER, ET AL.,
Defendants.

] ] ] ] ] CV-96-BE-2968-S ] ] ] ] ]

FILED
2005 Nov-08 PM 04:03 U.S. DISTRICT COURT
N.D. OF ALABAMA

ORDER This case came before the court for trial. Upon the completion of Plaintiff’s case in chief, the Defendants moved for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(a). For the reasons set forth on the record at the November 7, 2005 hearing, and summarized below, the court finds that Defendants’ Motion is due to be GRANTED. To prevail on an Eighth Amendment challenge, a prisoner must satisfy both an objective and subjective test. Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11th Cir. 2004). Under the objective analysis, the “prisoner must prove that the condition he complains of is sufficiently serious to violate the Eighth Amendment.” Id. at 1289. Pursuant to the subjective analysis, the prisoner must show that the prison officials acted with “deliberate indifference” with regard to the condition at issue. Id. A prison official acts with “deliberate indifference” when he is “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. at 1290. Although the use of the restraining bar in this case constituted cruel and unusual punishment, as found by the Supreme Court in Hope v. Pelzer, 536 U.S. 730, 737-78 (2002), Plaintiff failed to

meet his burden of proof as to the individual liability of the three named defendants. Specifically, Plaintiff offered no evidence to prove that any of the individual defendants acted with deliberate indifference, or were aware of a substantial risk of serious harm. Merely showing that an Eighth Amendment violation occurred, without more, is not sufficient to impose liability on the defendants in this case.
Accordingly, this court has no choice but to find that Defendants’ Motion is due to be GRANTED. Plaintiff’s claims against Defendants are, therefore, DISMISSED with prejudice.
Costs are taxed against Plaintiff. DONE and ORDERED this 8th day of November, 2005.
____________________________________ KARON OWEN BOWDRE UNITED STATES DISTRICT JUDGE
2

 
 Case 2:96-cv-02968-KOB Document 77 Filed 08/20/2004 Page 1 of 6

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

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LARRY HOPE,

)

)

Plaintiff,

)

)

vs.

)

)

MARK PELZER, KEITH

)

GATES and GENE McCLARAN, )

)

Defendants.

)

Civil Action # 96-BE-2968-S

AMENDED AND SUBSTITUTED COMPLAINT and JURY DEMAND
COMES NOW plaintiffLarry Hope, by and through counsel, and provides this Amended and Substituted Complaint. The purpose of this amendment is as follows: (i) to modify the style so as to delete those defendants who have been dismissed and to name correctly each of the three remaining defendants who have been previously identified; (ii) to add a claim for attorney's fees pursuant to 42 U.S.C. § 1988, which claim was not viable at the time of the original Complaint because the original Complaint was pro se; and (iii) to clarify without substantive modification the claims which are the subject of the original pro se Complaint.
As authority for this amendment, plaintiffrespectfully refers the Court to Rule 1S(a), Federal Rules of Civil Procedure, which provides that leave to amend shall be freely given when justice so requires, and to the Scheduling Order entered July 21, 2004, which provides, "Plaintiffmay amend pleadings to correctly name the parties previously identified, in accordance with Fed.R.Civ.P. 15, until by August 9, 2004." A Motion to Amend and brief in support thereof are filed herewith.

'/1

Case 2:96-cv-02968-KOB Document 77 Filed 08/20/2004 Page 2 of 6
JURISDICTION 1. The jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343(3) and
(4),2201 and 2202. This is a suit authorized and instituted pursuant to 42 U.S.c. §1983 providing for the enforcement ofrights guaranteed by the Eighth Amendment to the United States Constitution, and pursuant to 42 U. S.C. § 1988 providing for the award ofreasonable attorney's fees and expenses in such cases. PARTIES
2. Plaintiff Larry Hope is an inmate in the custody of the Alabama Department of Corrections. At the relevant time the plaintiffwas an inmate at the Limestone Correctional Facility in the Northern District of Alabama.
3. Defendant Mark Pelzer at the relevant time was employed as a Correctional Officer II with the Alabama Department of Corrections at Limestone Correctional Facility in the Northern District of Alabama.
4. Defendant Keith Gates at the relevant time was employed as a Correctional Officer I with the Alabama Department of Corrections at Limestone Correctional Facility in the Northern District of Alabama.
5. Defendant Gene McClaran at the relevant time was employed as a Correctional Officer I with the Alabama Department of Corrections at Limestone Correctional Facility in the Northern District of Alabama.
6. At all relevant times, each ofthe defendants was a State actor acting within the scope ofhis employment and under color ofAlabama law. Each ofthe defendants is sued in his individual capacity.
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Case 2:96-cv-02968-KOB Document 77 Filed 08/20/2004 Page 3 of 6
STATEMENT OF FACTS 7. Plaintiff was handcuffed to the restraining bar (or "hitching post") at Limestone
Correctional Facility on two occasions, May 11, 1995, and June 7, 1995. 8. The defendants were the persons who directly caused the plaintiff to be handcuffed
to the restraining bar as alleged in ~ 7 herein. Specifically, on May 11, 1995, defendant McClaran instructed that the plaintiff be returned to the prison to be handcuffed to the restraining bar. Specifically, on June 7, 1995, defendant Pelzer instructed that the plaintiffbe returned to the prison to be handcuffed to the restraining bar. Specifically, defendant Gates handcuffed the plaintiffto the restraining bar on May 11, 1995, and June 7, 1995. In addition, defendants McClaran and Pelzer may have participated with defendant Gates in handcuffing the plaintiffto the restraining bar on May 11, 1995, andlor June 7, 1995.
9. Plaintiff was subjected to cruel and unusual punishment. The actions of defendants alleged herein were an unnecessary and wanton infliction of pain. The defendants' sole purpose in causing the plaintiff to be handcuffed to the restraining bar as alleged in ~~ 7 and 8 herein was for punishment. The defendants handcuffed him to the restraining bar to sanction him for alleged disruptive conduct and as an example to other inmates. The defendants intended to inflict gratuitous pain and discomfort on the plaintiff without justification. The circumstances of plaintiff s confinement created a substantial risk of harm of which the defendants were aware.
10. While plaintiff was handcuffed to the restraining bar, he was exposed to weather without a shirt. The sun burned his skin. Defendants denied the plaintiffwater and taunted him with the water cooler. His wrists were swollen and bruised from the handcuffs and the extremely uncomfortable position in which he was forced to stand. He suffered sunburn, dehydration and
-3-

Case 2:96-cv-02968-KOB Document 77 Filed 08/20/2004 Page 4 of 6
muscle aches. The sun heated the handcuffs and the restraining bar itselfwhich caused further burns and chafing of plaintiff s skin.
11. As a direct result of the unlawful intentional actions of the defendants alleged in ~~ 7-10 herein, plaintiffwas deprived ofimportant rights guaranteed by the United States Constitution, forced to endure physical pain and suffering and extreme discomfort and mental anguish, and suffered serious physical injury and severe emotional distress.
12. The unlawful intentional actions of the defendants alleged in ~~ 7-10 herein were undertaken with malice, and rise to such a level ofwillfulness, wantonness, bad faith and deliberate indifference to the rights and safety of the plaintiff, as to authorize the plaintiffto recover punitive damages.
13. The plaintiffis entitled to recover reasonable attorney's fees and expenses oflitigation from the defendants under 42 U.S.C. § 1988 and other applicable law, in an amount to be proven at the appropriate time and determined by the Court.
PRAYER FOR RELIEF WHEREFORE, the plaintiffprays that this Court assume jurisdiction ofthis action and after
jury trial: 1. Issue a declaratory judgment that the policies and practices, conditions, and customs
ofthe defendants violated the rights ofplaintiff as secured by the Eighth Amendment to the United States Constitution;
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Case 2:96-cv-02968-KOB Document 77 Filed 08/20/2004 Page 5 of 6
2. Grant plaintiff a pennanent injunction enjoining the defendants, their agents, successors, employees, attorneys and those acting in concert with defendants and at defendants' request from continuing to violate the Eighth Amendment to the United States Constitution;
3. Require defendants to make plaintiff whole by awarding him compensatory and punitive damages (or nominal damages in lieu thereof); and
4. Award such other relief and benefits as the cause ofjustice may require, including, but not limited to, an award of costs, reasonable attorney's fees and expenses, pursuant to 42 U.S.C. § 1988.
PLAINTIFF HEREBY DEMANDS TRIAL BY STRUCK JURY.
Craig T. Jones Georgia # 399476 Lead counsel for plaintiff Larry Hope Edmond & Jones, PC The Candler Building, Suite 410 127 Peachtree St., NE Atlanta, GA 30303 (404) 525-1080 fax (404) 525-1073

1117 22nd Street South Binningham, Alabama 35205 (205) 939-0000 fax (205) 933-9475

arne;Mendelsohn
# ASB-4593-D53J Local counsel for plaintiff Larry Hope
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Case 2:96-cv-02968-KOB Document 77 Filed 08/20/2004 Page 6 of 6
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served by U.S. Mail addressed to the following counsel of record:
Ellen R. Leonard, Office of the Attorney General Alabama State House 11 South Union St. Montgomery, AL 36130-0152 Andrew W. Redd Kim Thomas Alabama Department of Corrections Legal Division PO Box 301501 Montgomery, AL 36130-1501. This, the ~ day of August, 2004.
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 Case 2:96-cv-02968-KOB

Document 109

Filed 09/28/2005

Page 1 of 4

FILED

2005 Sep-28 AM 10:05 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LARRY HOPE, Plaintiff,
v. MARK PELZER, ET AL.,
Defendants.

] ] ] ] ] CV-96-BE-2968-S ] ] ] ] ]

MEMORANDUM OPINION AND ORDER This case is before the court on Plaintiff’s Motion for Summary Judgment (doc. 82) and Defendants’ Motion for Summary Judgment (doc. 84). For the reasons stated on the record at the September 26, 2005 hearing and summarized below, the court DENIES both motions. Additionally, the court DISMISSES as MOOT Plaintiff’s claims for declaratory and injunctive relief. See doc. 77. Plaintiff Larry Hope is suing Defendants Mark Pelzer, Keith Gates, and Gene McClaren alleging cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff’s claims arise from two incidents where he was handcuffed to a restraining bar at the Limestone Correctional Facility. This case was initially referred to a magistrate judge, who concluded that Defendants were entitled to qualified immunity. The district court agreed and entered judgement for the Defendants. On appeal, the Eleventh Circuit affirmed the lower court’s ruling that Defendants were entitled to qualified immunity. However, the Eleventh Circuit also addressed the constitutional issue and determined that the use of the restraining bar for punitive purposes under the conditions alleged by Plaintiff violated the Eighth Amendment. Hope v. Pelzer, 240 F.3d 975, 978-79 (11th Cir. 2001)

Case 2:96-cv-02968-KOB Document 109 Filed 09/28/2005 Page 2 of 4
(reversed on other grounds). Thereafter, the United States Supreme Court reversed the Eleventh Circuit and held that Defendants were not entitled to qualified immunity. Hope v. Pelzer, 536 U.S. 730, 746-48 (2002). The Supreme Court, however, agreed with the Eleventh Circuit that the allegations in Plaintiff’s Complaint, if proved, constituted an Eighth Amendment violation. Id. at 737. Consequently, Plaintiff’s case is before this court for adjudication.
Defendants argue that 42 U.S.C. § 1997e(e) mandates dismissal of Plaintiff’s Complaint. The court concludes that a genuine issue of material fact exists as to whether Plaintiff suffered an injury that was more than de minimis to support his claim for emotional damages. The Eleventh Circuit construes 42 U.S.C. § 1997e(e) as barring a prisoner’s claim for mental or emotional injury in the absence of a claim for physical injury that exceeds the de minimis threshold. See Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999) (vacated in part and reinstated in part ). However, the Harris decision does not provide any clear guidance to determine what injury exceeds de minimis. In this case a reasonable jury could infer from Plaintiff’s deposition testimony that the alleged injuries were serious enough to exceed the de minimis threshold and warrant the award of damages. Furthermore, the Supreme Court and the Eleventh Circuit based their conclusions that Plaintiff’s Constitutional rights were violated on facts that were alleged by the Plaintiff at that time. Subsequently, more evidence has entered the record, thereby creating a disputed issue of fact as to whether Plaintiff’s Eighth Amendment rights were violated.
The Complaint also requests nominal damages. In Harris, the court indicated that nominal damages may be appropriate even in the absence of a serious physical injury. Id. at 1288. Although holding that the claims for compensatory and punitive damages were correctly dismissed because the plaintiff’s “allegations of physical injury were not serious enough to satisfy the physical injury
2

Case 2:96-cv-02968-KOB Document 109 Filed 09/28/2005 Page 3 of 4
requirement of section 1997e(e),” the court stated “that section 1997e(e) only precludes some actions for money damages....” Id. (emphasis added). Other circuits have clearly recognized that § 1997e(e) does not preclude a claim for nominal damages or punitive damages for a constitutional violation. See Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2000) (determining that claims for loss of property, nominal, and/or punitive damages would not be dismissed by application of § 1997e(e); Searles v. Van Bebber, 251 F.3d 869, 878-80 (10th Cir. 2001) (stating § 1997e(e) would not bar recovery for nominal damages, which are mandatory upon a finding of a constitutional violation; nor would it bar recovery for punitive damages, which are available under § 1983 upon a finding that conduct was motivated by “evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others”); Allah v. Al-Hafeez, 226 F.3d 247, 250-52 (3d Cir. 2000) (nominal and punitive); Cassidy v. Indiana Dep’t. of Corr., 199 F.3d 374, 376-77 (7th Cir. 2000) (holding that plaintiff may pursue all damages other than those for emotional or mental injury). Therefore, the court finds that § 1997e(e) does not require dismissal of Plaintiff’s claim for nominal damages.
Additionally, the court concludes that a genuine issue of fact exists as to whether Defendants Pelzer and McClaren were actually present when Plaintiff was placed on the restraining bar. The record contains conflicting evidence such that a fact finder could determine that Defendants were present when Plaintiff was handcuffed to the bar.
Because questions of fact exist, and because the court cannot conclude that either party is entitled to judgment as a matter of law, both Motions for Summary Judgment are hereby DENIED.
DONE and ORDERED this 28th day of September, 2005.
3

Case 2:96-cv-02968-KOB Document 109 Filed 09/28/2005 Page 4 of 4 ____________________________________ KARON OWEN BOWDRE UNITED STATES DISTRICT JUDGE
4

 
 Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
KeyCite Red Flag - Severe Negative Treatment Reversed and Remanded by Hope v. Pelzer, 11th Cir.(Ala.), September 13, 2002
2000 WL 35501948 Only the Westlaw citation is currently available.
United States District Court, N.D. Alabama, Southern Division.
Larry HOPE, Plaintiff, v.
Mark PELZER; Gene McClaran; Greg Jackson; Gary McGee; Joseph Stephenson; Jim Gates, also
known as Keith Gates; James Kent; and Ted Loggins, Defendants.
No. CV 96–BU–2968–S. | March 24, 2000.
Attorneys and Law Firms
Craig T. Jones, Edmond & Jones PC, Atlanta, GA, James A. Mendelsohn, Birmingham, AL, for Plaintiff.
Andrew W. Redd, Kim T. Thomas, State of Alabama Department of Corrections, Legal Division, Ellen R. Leonard, Troy R. King, Office of the Attorney General, Montgomery, AL, for Defendants.
Opinion
MEMORANDUM OPINION
BUTTRAM, J.
*1 The magistrate judge assigned this matter filed a report and recommendation on March 10, 2000, recommending (1) that the plaintiff’s claims for the use of excessive force against concerning a June 7, 1995, altercation be dismissed and that the plaintiff’s claims against defendants Greg Jackson, Gary McGee, Joseph Stephenson, James Kent, and Ted Loggins be dismissed premised on the request of the plaintiff and (2) the motions for summary judgment of the remaining defendants be granted on the basis of qualified immunity and that this cause be dismissed with prejudice. (Doc. 45). The plaintiff filed objections to the report and recommendation on March 20, 2000. (Doc. 46).
The plaintiff argues that the magistrate judge’s finding that the defendants in this case are entitled to qualified immunity is inconsistent with recent holdings in cases decided in the United States District Court for the Middle District of Alabama. “In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only

by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826–27 n. 4 (11th Cir.1997), quoted in Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.1998). Furthermore, this case is clearly distinguishable from the case of Fountain v. Talley, Case No. 94–C–676–N (M.D.Ala.2/25/00), which is cited by the plaintiff and attached to his objections. In the case presently before the court, the plaintiff, unlike Fountain, did not allege that he suffered any physical condition which was exacerbated by being placed on the bar, he was provided water on one or two occasions, and he was not denied restroom breaks. To the extent that the plaintiff alleges that guards taunted him about being on the restraining bar and by providing water to the security dogs and then spilling it out of the container, that conduct is not attributed to any defendant presently before this court.
Government officials exercising a discretionary function are entitled to qualified immunity from damages unless their acts or decisions contravene clearly established constitutional or statutory rights of which a reasonable official should have knowledge. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2751, 73 L.Ed.2d 396 (1982). The “contours of the rights must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 636, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Court specifically finds at the time of the conduct alleged in this case, the law on the use of the restraining bar was not so clearly established as to defeat the defendants’ assertion that they are entitled to qualified immunity on the plaintiff’s claims that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment when he was placed on the hitching post, and that he was denied due process in violation of the Fourteenth Amendment prior to being placed on the bar.
*2 Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections filed by the plaintiff, the Court is of the opinion that the magistrate judge’s report is due to be and is hereby ADOPTED and his recommendation is ACCEPTED. The Court EXPRESSLY FINDS that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law. Accordingly, defendants’ motions for summary judgment are due to be GRANTED and this action is due to be DISMISSED WITH PREJUDICE. A Final Judgement will be entered.
1

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
OTT, Magistrate J.
Plaintiff Larry Hope (“the plaintiff”) was incarcerated at the William E. Donaldson Correctional Facility at the time he filed this pro se action pursuant to 42 U.S.C. § 1983, alleging that he had been deprived of rights, privileges, or immunities afforded him under the Constitution of the United States of America. In accordance with the usual practices of this court and 28 U.S.C. § 636(b), the complaint was referred to a magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991). It was subsequently reassigned to the undersigned magistrate judge.
I. BACKGROUND AND PROCEDURAL HISTORY The plaintiff alleges in his original complaint that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment while previously incarcerated at Limestone Correctional Facility and names as defendants, Mark Pelzer, Gene McClaran, Greg Jackson, Gary McGee, Joseph Stephenson, Jim Gates, James Kent, and Ted Loggins. He attached an affidavit, prison records, and copies of photographs to the complaint. As compensation for the alleged constitutional violations, the plaintiff seeks compensatory and punitive damages.1
On December 31, 1996, the court entered an Order for Special Report, directing that copies of the complaint in this action be forwarded to each of the named defendants and requesting that they file a special report addressing the factual allegations of the plaintiff’s complaint. (Doc. 4).2 The order listed the defendants identified by the plaintiff and his claims. It specified that the plaintiff was presenting Eighth Amendment claims concerning his being handcuffed to a “hitching post” on May 11, 1995, and June 7, 1995. (Id., p. 3). The defendants were advised that the special report could be submitted under oath or accompanied by affidavits and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. By the same order, the plaintiff was advised that after he received a copy of the special report submitted by the defendants, he should file counter-affidavits if he wished to rebut the matters presented by defendants in the special report. The plaintiff was further advised that such affidavits should be filed within twenty days after receiving a copy of the defendants’ special report.
*3 On February 10, 1997, the plaintiff filed a

“Supplemental (sic) to Clerk of the Court,” wherein he contended that the defendants placement of him on the “hitching post” violated his rights to procedural and substantive due process under the Fourteenth Amendment. (Doc. 41). It is a two page, unsigned document. There is no certificate of service attached showing that it was ever served on the defendants or their counsel.
On March 24, 1997, defendants Mark Pelzer, Gene McClaran, Gregory Jackson, Gary McGee, Joseph Stephenson, and Jim Gates filed a special report. (Doc. 11). It includes institutional incident reports, emergency and medical treatment reports, activity logs, and the affidavits of Pelzer, McClaran, Jackson, McGee, Stephenson, and Gates. On April 24, 1997, defendant James Kent filed a special report, including his affidavit. (Doc. 17). On September 27, 1997, defendant Ted Loggins filed a supplemental special report, including his affidavit. (Doc. 26). The plaintiff was notified that he would have twenty days to respond to the supplemental special report of Loggins, which the court intended to construe as a motion for summary judgment. (Doc. 28). The plaintiff was afforded the opportunity to file affidavits or other material if he chose. He was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.1985).
Counsel for the plaintiff entered a notice of appearance on October 17, 1997, and filed a “Preliminary Response” to the defendants’ special report. (Doc. 29 & 30). On November 3, 1997, counsel for the plaintiff filed a “Special Report and Brief in Response to Defendants’ Motion for Summary Judgment.” (Doc. 33). In this document, the plaintiff informed the court that he was waiving and withdrawing his claims for excessive force in connection with the June 7, 1995 fight, which led to his being put on the hitching post for the second time. (Doc. 33, p. 1). The plaintiff also informed the court that he wanted to dismiss defendants Loggins, Jackson, McGee, Stephenson, and Kent from the lawsuit. (Id.). The plaintiff states that the only claims he wants to pursue are those against defendants McClaran, Pelzer, and Gates in connection with the May 11, 1997, hitching post incident, and defendant Gates in connection with the June 7, 1997, hitching post incident. (Id., p. 2). He also filed a second affidavit in support of his claim. (Doc. 32). On December 29, 1997, he filed a “Supplemental Brief in Opposition to Summary Judgment.” (Doc. 42).
On February 13, 1999, the court conducted a telephonic status conference in this matter. Premised on that conference, the court informed the parties that it would be treating the defendants’ special reports as motions for summary judgment. Accordingly, the parties were afforded an opportunity to file any additional briefs or evidentiary material in support of their positions. (Doc.
2

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
36). The defendants filed a response to the court’s order. (Doc. 37). The plaintiff filed a “Third Supplemental Brief in Opposition to Defendants’ Motion for Summary Judgment.” (Doc. 38).
*4 On December 29, the plaintiff filed a motion seeking to stay this action until the United States District Court for the Middle District of Alabama decides a pending motion for class certification in the case of Hicks v. Allen, Case No. 96–D–854–N. (M.D.Ala.4/16/99). (Doc. 39). According to the plaintiff’s counsel, the present “case is one of approximately ten (10) in which Plaintiff’s counsel represents inmates who have damage claims as a result of having been unconstitutionally pilloried on a device known as the ‘hitching post.” ’ (Doc. 40, pp. 1–2). Counsel for the plaintiff herein have also informed the court that the present matter is also related to the case of Austin v. James, Case No. 95–T–637–N (M.D.Ala.5/15/95), involving claims by 200–300 inmates who have been subjected to the “hitching post” during their incarceration and who are seeking injunctive relief and not damages. (Doc. 40, p. 2; Doc. 33, Attachment 2, pp. 1–2). The motion to stay will be denied by a separate order entered contemporaneously with this report and recommendation.
II. SUMMARY JUDGMENT STANDARD Because the special reports of the defendants are being considered as motions for summary judgment, the Court must determine whether the moving party, the defendants, are entitled to judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact. Fed.R.Civ.P. 56. In making that assessment, the Court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). Once that initial burden has been carried, however, the non-moving party may not merely rest upon his pleadings, but must come forward with evidence supporting each essential element of his claim or to refute a claim of qualified immunity. See Celotex Corp., 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir.1989). Unless the plaintiff, who carries the ultimate burden of proving his action and the absence of qualified immunity, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. ., 477

U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265; Bennett v. Parker, 898 F.2d 1530 (11th Cir.1990).
III. FACTS
A. May 11, 1995 Incident Applying the above standard, the following facts are undisputed or, if disputed, are taken in a light most favorable to the plaintiff. The plaintiff was incarcerated at the Limestone Correctional Facility in 1995 and assigned to the chain gang. On May 11, 1995, while on the chain gang, the plaintiff and another inmate got into a verbal altercation. Officer McClaran concluded that the altercation was the plaintiff’s fault and ordered him put on the hitching post for being “disruptive to the work squad.” (Doc. 32, ¶ 5). According to the plaintiff, he was placed on the hitching post at 12:30 p.m. by Sergeant Pelzer. (Id., ¶ 7). He notes, however, that the incident report shows that Officers Gates and Dempsey3 placed him on the restraining bar. (Id.; See also Doc. 11, Exhibit 7, Incident Report, p. 2). No disciplinary write-up or hearing preceded his being placed on the bar.
*5 Captain David J. Wise later concluded that the other inmate was responsible for the altercation and ordered the plaintiff released at 2:40 p.m. According to the Department of Corrections “Activity Log” for the two hours the plaintiff was restrained on the bar, he was offered water and a restroom break every fifteen minutes. (Doc. 11, Activity Log). Of the nine times he was offered water or a restroom break, the plaintiff refused every offer of water and all but one offer of a restroom break. (Id.).
A physical examination of the plaintiff was conducted by an institution nurse at approximately 6:50 p.m. The examination revealed no signs of bruises, contusions, abrasions, lacerations, trauma, or illness. (Doc. 11, Hope Emergency/Treatment Record).
B. June 7, 1995 Incident On June 7, 1995, the plaintiff was involved in another altercation when, according to him, “a correctional officer who had cursed [him] and grabbed [him] by the neck because [he] was sleeping on the bus on the way to a work site.” (Doc. 32, ¶ 11). Because he began choking, he attempted to get the officer to release his grip. At that time, other officers arrived and “subdued, handcuffed, placed [him] in leg irons, transported him back to Limestone,4 and put [him] on the hitching post” by Loggins, Kent, Jackson, Stephenson and McGhee.5 (Id., ¶ 13).
According to the plaintiff’s affidavit that is attached to the original complaint, when he was returned to the
3

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
institution, he was taken to the health care unit where he did not receive any treatment for his injuries. (Doc. 1, Plaintiff’s Affidavit, p. 1). He was examined by Nurse Wilda Nichols at about 11:35 a.m. (Id., Medical Record). Nichols observed that the plaintiff’s speech was normal, he had a few scattered bumps on his left shoulder, a reddened area to the right shoulder, no bleeding, no knots on his head, he denied visual disturbances, and he ambulated well. Nichols noted that no treatment was needed at that time. (Id.). The plaintiff was then placed on the hitching post without a shirt, in the sun, for approximately seven hours.
The plaintiff is only slightly taller than the hitching post itself so his arms grew tired from being handcuffed so high. He was given water only once or twice during the seven hours he was restrained, and he was teased by two unidentified officers when he requested water. (Doc. 32, ¶¶ 18, 19). The guards brought a cooler of ice and water to the hitching post area, gave some to the security dogs first, then moved the cooler closer to the plaintiff, removed the lid, and kicked it over. (Doc. 1, the plaintiff’s affidavit, p. 2). He also states that “at one point during the hottest part of the day [he] was left without water for at least three hours.” (Doc. 32, ¶ 18).
The plaintiff did not receive a disciplinary charge, behavior citation, or any hearing at any time as a result of the altercation at the bus. (Doc. 32, ¶ 21).
IV. DISCUSSION *6 As already discussed, the plaintiff, at most, appears to be asserting claims (1) that certain defendant officers used excessive force on him and (2) that certain officers violated his right to procedural and substantive due process and subjected him to cruel and unusual punishment by placing him on the restraining bar on May 11, 1995, and June 7, 1995. His November 3, 1997, response seeks to withdraw his claim that the officers used excessive force concerning the June 7 incident at the bus. He further requests that the court dismiss defendants Loggins, Jackson, McGee, Stephenson, and Kent from the lawsuit entirely. Premised on the plaintiff’s response, his excessive force claim in connection with the June 7 incident is due to be dismissed with prejudice. Further, defendants Loggins, Jackson, McGee, Stephenson, and Kent are also due to be dismissed with prejudice on all claims. The only defendants remaining in the lawsuit are Mark Pelzer, Gene McClaran, and Keith Gates. The plaintiff’s only remaining claims are that the use of the restraining bar constituted a violation of due process and that he was subjected to cruel and unusual punishment.
A. Qualified Immunity

The defendants have raised the defense of qualified immunity. Government officials exercising a discretionary function are entitled to qualified immunity from damages unless their acts or decisions contravene clearly established constitutional or statutory rights of which a reasonable official should have knowledge. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2751, 73 L.Ed.2d 396 (1982). “That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities.” Lassiter v. Alabama A & M University Board of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994)(en banc)(footnote omitted). In Lassiter, the court stated:
Unless a government agent’s act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. See Malley v. Briggs, 475 U.S. 335, 341–43, 106 S.Ct. 1092, 1096–97, 89 L.Ed.2d 271 (1986). Because qualified immunity shields government actors in all but exceptional cases, courts should think long and hard before stripping defendants of immunity.
Lassiter, 28 F.3d at 1149. See also Anderson v. Creighton, 483 U.S. 636, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)(The “contours of the rights must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”). The court in Lassiter also stated:
For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that “what he is doing” violates federal law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Qualified immunity is a doctrine that focuses on the actual, on the specific, on the details of concrete cases.
*7 The most common error we encounter, as a reviewing court, occurs on this point: courts must not permit plaintiffs to discharge their burden6 by referring to general rules and to the violation of abstract “rights.” See Anderson, 483 U.S. at 639–41, 107 S.Ct. at 3038–39 (even though the “general right [defendant]
4

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
was alleged to have violated—the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances—was clearly established,” [the] lower court should have “consider[ed] the argument that it was not clearly established that the circumstances with which [defendant] was confronted did not constitute probable cause and exigent circumstances”) (emphasis added); see also Barts, 865 F.2d at 1190 (stating “clearly established” question at specific, factually defined, level).
“General propositions have little to do with the concept of qualified immunity.” Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987). “If caselaw, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994); accord Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir.1994).7 “The line is not to be found in abstractions—to act reasonably, to act with probable cause, and so forth—but in studying how these abstractions have been applied in concrete circumstances.” Barts, 865 F.2d at 1194. And, as the en banc court recently accepted:
When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. See, e.g., Edwards v. Gilbert, 867 F.2d 1271, 1277 (11th Cir.1989). Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.
Adams v. St. Lucie County Sheriff’s Dept., 962 F.2d, 1563, 1573, 1575 (11 th Cir.1992), (Edmondson, J., dissenting) (emphasis added), approved en banc, 998 F.2d 923 (11th Cir.1993). For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.
Because qualified immunity is a doctrine of practical application to real-life situations, courts judge the acts of defendant government officials against the law and facts at the time defendants acted, not by hindsight, based on later events. See Hunter, 502 U.S. at ––––, 112 S.Ct. at 537 (“the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more

reasonable, interpretation of the events can be construed five years after the fact”).
*8 The subjective intent of government actor defendants plays no part in qualified immunity analysis. Anderson, 483 U.S. at 641, 107 S.Ct. at 3040 (despite that courts may inquire into “information possessed” by defendant, the defendant’s “subjective beliefs ... are irrelevant”); Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct. 2806, 2810, 86 L.Ed.2d 411 (1985) (in Harlow, “this Court purged qualified immunity doctrine of its subjective components”); Hansen v. Soldenwagner, 19 F.3d 573, 578 (11th Cir.1994) (“[t]he Supreme Court in Harlow staked a new path for immunity law by abandoning the subjective element of ‘good faith’ immunity in favor of an objective test”). Objective legal reasonableness is the touchstone.
28 F.3d 1149–50 (footnotes retained)(emphasis in original). Accord Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1295 (11th Cir.1998); Dolihite v. Maughon, 74 F.3d 1027, 1040–41 (11th Cir.), cert. denied, 519 U.S. 870, 117 S.Ct. 185, 136 L.Ed.2d 123 (1996); McCoy v. Webster, 47 F.3d 404, 407 (11th Cir.1995). Addressing the actions of misbehaving inmates is clearly within the discretionary function of prison guards. See Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.1994) (“discretionary authority” includes “all actions of a governmental official that (1) ‘were undertaken pursuant to the performance of his duties,’ and (2) were ‘within the scope of his authority” ’) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988)). The plaintiff does not contest this. Accordingly, the burden is on him to demonstrate that the defendants violated clearly established constitutional law by restraining the plaintiff on the “restraining bar.”
“In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826–27 n. 4 (11th Cir.), cert. denied, 522 U.S. 966, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997) (quoted in Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.1998)).
B. Cruel and Unusual Punishment The Eighth Amendment prohibition against cruel and unusual punishment is triggered when a prisoner is subjected to an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). “In order to state a § 1983 cause of action against prison officials based on a
5

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
constitutional deprivation resulting from cruel and unusual punishment, there must be at least some allegation of a conscious or callous indifference to a prisoner’s rights....” Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). The plaintiff complains that the very act of placing him on a restraining bar for a period of hours as a form of punishment was cruel and unusual in violation of the Eighth Amendment. Furthermore, the plaintiff claims that he was left in the sun without a shirt and in an awkward position which left him with swollen, bruised wrists. The plaintiff also asserts that he was taunted by an unnamed guard when he requested water.
*9 In response to the defendants’ request for qualified immunity, the plaintiff replies: (1) “The hitching post is a variation of the pillory, and the Supreme Court recognized the unconstitutionality of the Pillory over a century ago;” (2) The defendants’ conduct was unconstitutional under pre–1995 Eleventh Circuit law; and, (3) The defendants cannot claim qualified immunity because the rights violated are so readily apparent that clarifying law is not necessary.
The plaintiff relies on the Fifth Circuit case of Gates v. Collier, 501 F.2d 1291 (5th Cir.1985),8 and the Eleventh Circuit cases of Ort v. White, 813 F.2d 318, 327 (11th Cir.1987) and Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir.1991), cert. denied, 505 U.S. 1208, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992). Gates dealt with a variety of complaints about prison practices and conditions, corporal punishment among them. The Gates court stated that “depriving inmates of mattresses, hygienic materials, and adequate food, handcuffing inmates to the fence and cell 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 ... run afoul of the Eighth Amendment.9 Id., at 1306. The court in Gates did not address the restraining bar issues so as to create a “bright line” rule that restraining an inmate who is disruptive to the work squad to a restraining bar would violate the inmate’s constitutional rights. Lassiter, 28 F.3d at 49–50.
In Ort, the plaintiff appealed the district court’s dismissal of his civil rights action wherein he claimed that prison officials violated his Eighth Amendment protection against cruel and unusual punishment and his Fourteenth Amendment due process rights. His claims were premised on allegations that he was denied water when he refused to work on details away from the institution and that he was confined to the prison sallyport for several hours at a time. The court upheld the dismissal of the Eighth and Fourteenth Amendment claims for the denial of water, finding that the actions were not punitive but rather an immediately necessary coercive, good faith measure used

to compel compliance with prison rules and regulations. The court did note that it “might have reached a different decision if later, once back at the prison, officials had decided to deny appellant water as punishment for his refusal to work.” Ort, 813 F.2d at 326. Regarding his confinement in the sallyport to keep him from watching television after he attempted to circumvent the disciplinary order revoking his television privileges, which was part of his punishment for failing to follow orders in the field, the court held that the allegations did not support a § 1983 claim. Ort, 813 F.2d at 327–28.
In Williams, the plaintiff was placed in “four-point” restraints and “gaged” with gauze and tape for approximately twenty-eight and one-half hours after he created a “general disturbance” by threatening to kill correctional officers and spitting on one of the officers. When he was taken to his cell, the plaintiff continued to yell, threaten others with bodily harm, and spit on officials. The plaintiff challenged the district court’s dismissal of his case on summary judgment. The court rejected his contention that the Eighth Amendments was violated by the use of the restraints and the gag. The court reasoned that the actions of the prison staff in using the restraints were intended to limit the plaintiff’s ability to inflict physical harm against himself and others and the use of the gauze and tape were to prevent him from encouraging further unrest and to protect the officers from his assaultive behavior. Williams, 943 F.2d at 1575. Finally, the court found that the use of the restraints and gag were not “ ‘unnecessary and wanton infliction of pain’ forbidden by the Eighth Amendment.” Id.
*10 Reviewing the foregoing authorities, as well as others, the court does not find that as of May and June 1995, the law was clearly established to the point of defeating the defendants’ claim of qualified immunity on the Eighth Amendment claim. There was no case “stak[ing] out a bright line” that the handcuffing, shackling, or chaining of a prisoner to a fixed object, such as a restraining bar, for a period of up to seven hours violated the prohibition against cruel and unusual punishment. Lassiter, 28 F.3d at 1146 (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994)). The “burden of proving the law to be clearly established [cannot be met] by stating constitutional rights in general terms.” Flores, 137 F.3d at 1277 (quoting Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir.1996)). The law must be such that the conduct of the defendants “violates the law in the circumstances.” Lassiter, 28 F.3d at 1150. The plaintiff has failed to show any cases from the Unites States Supreme Court, the Eleventh Circuit Court of Appeals, or the Alabama Supreme Court addressing the specific question before this court.
While the plaintiff complains that he was hot and thirsty, it is undisputed that he was offered water at least once or
6

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
twice on both occasions. Concerning the first incident, the record shows that he turned down offers of fluids eight times and to use the bathroom seven times. (Doc. 11, Hope Activity Log). He accepted the opportunity to use the restroom one time and does not state that it was thereafter denied. (Id.). Concerning the second incident, he states in his second affidavit that he was given water “once or twice during the entire seven hours, but that was not enough, and during the hottest part of the day [he] was left without water for at least three hours.” (Doc. 32, ¶ 18). As to the plaintiff’s claim that he was taunted by a guard when he asked for water, that guard is not one of the defendants named in this lawsuit.10
Based on the foregoing considerations, the magistrate judge recommends that the motions for summary judgment filed by the defendants be granted on the plaintiff’s Eighth Amendment claim. This court cannot conclude that the named defendants’ actions in placing the plaintiff on the restraining bar were so contrary to then existing law so as to defeat their assertion of qualified immunity.
C. Due Process The defendants’ first assert that the plaintiff has not alleged a due process violation. (Doc. 37, p. 3). The complaint nowhere alleges a Fourteenth Amendment Due Process claim. The only place where it is asserted is in the “Supplement” that he filed on February 10, 1997. However, that document is not signed. The certificate of service only certifies that it is “true and correct.” It does not evidence service on the defendants or their counsel. Assuming for the sake of argument in that the claim is properly before the court, summary judgment is due to be granted on the qualified immunity issue.
*11 In opposition to the defendants’ assertions of qualified immunity, the plaintiff cites the Eleventh Circuit’s holdings in Ort and Williams, and Dailey v. Byrnes, 605 F.2d 858 (5th Cir.1979), opinion withdrawn January 7, 1980. In Ort, while the court was discussing the plaintiff’s Fourteenth Amendment Due Process claim, concerning the decision to deny the plaintiff water when he refused to work, the court stated:
Once again we emphasize the distinction between punishment in the strict sense and immediately necessary coercive measures undertaken either to obtain compliance with a valid prison rule or in response to a spontaneous disturbance. Clearly, appellant would have a legitimate due process claim if, after the misconduct or disturbance had

abated, prison officials had summarily denied him water or imposed any other form of punishment without first affording him some type of disciplinary hearing. A fourteenth amendment violation occurs in this context where prison officers continue to employ force or other coercive measures after the necessity for such coercive action has ceased.
Ort, 813 F.2d at 327. In Williams, while discussing the restraints used by the defendants, the court stated:
Plaintiff’s third claim under the Eighth Amendment is a bit more difficult. Once restraints are initially justified, it becomes somewhat problematic as to how long they are necessary to meet the particular exigent circumstances which precipitated their use. The basic legal principle is that once the necessity for the application of force ceases, any continued use of harmful force can be a violation of the Eighth and Fourteenth Amendments, and any abuse directed at the prisoner after he terminates his resistance to authority is an Eighth Amendment violation. Ort v. White, 813 F.2d 318, 324 (11th Cir.1987) (citing Smith v. Dooley, 591 F.Supp. 1157, 1168 (W.D.La.1984), aff’d, 778 F.2d 788 (5th Cir.1985)).
Williams, 943 F.2d at 1575–76. In Dailey, the plaintiff alleged that his confinement at the Escambia County Jail violated the Eighth Amendment in that he was subjected to “intolerable living conditions, inadequate diet, lack of proper medical services, [a] failure to provide exercise and an opportunity for fresh air, assaults by officers against him and the refusal of the sheriff to honor appearance bonds for his release.” Dailey, 605 F.2d at 859. At the conclusion of a non-jury trial, “the district court found neither the conditions at the jail nor the conduct of the officials to be unconstitutional.” Id. In affirming the district court on all matters “except those arising out of one particular assault on the plaintiff,” the court stated:
The one area in which we cannot fully accept the district court’s conclusions concerns the plaintiff’s effort to obtain damages for injuries the plaintiff suffered when Frank Reid, one of the jailers, struck him
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Hope v. Pelzer, Not Reported in F.Supp.2d (2000)
in the head causing a partial loss of hearing. At trial officer Reid admitted that he had struck Dailey. The district court found that several days earlier, plaintiff had thrown water on Reid, and the blow, several days later, was in retaliation to the previous water throwing incident. Noting that plaintiff had sought no relief for the assault but the court had power to grant any relief mandated by the evidence in this pro se case, the district court concluded that it was not persuaded that a constitutional right had been violated on the proof presented by plaintiff, citing Aulds v. Foster, 484 F.2d 945 (5th Cir.1973) and Tolbert v. Bragan, 451 F.2d 1020 (5th Cir.1971). See also Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971).
*12 We have frequently held that ‘an unjustified beating at the hands of prison officials gives rise to a section 1983 action.’ Bruce v. Wade, 537 F.2d 850, 853 (5th Cir.1976); see, e.g ., Aulds v. Foster, 484 F.2d 945, 946 (5th Cir.1973). In Hamilton v. Chaffin, 506 F.2d 904, 909 (5th Cir.1975) quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), we observed,
[i]n determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of casing harm. Id. 481 F.2d at 1033. See Tolbert v. Bragan, 451 F.2d 1020 (5th Cir.1971).
The district court did not find that Reid was making a ‘good faith effort to maintain or restore discipline’; nor did he find that Reid ‘need[ed]’ to strike the plaintiff in order to subdue him or for any other legitimate reasons. No such reasons are obvious from this record. The district judge apparently believed that because Reid struck the plaintiff ‘in retaliation’ for the incident that had occurred several days before, the plaintiff’s constitutional rights were not violated. But ‘retaliation’ for an incident that occurred several days earlier is more likely to be not an effort to restore order but instead either a motive for ‘maliciously’ striking the plaintiff ‘for the very purpose of causing harm’ or else summary, informal, unofficial and unsanctioned corporal punishment—an obvious due process violation.
Dailey, 605 F.2d at 860–61.
None of the cases cited by the plaintiff allow the conclusion that in May and June 1995, it was “clearly established” that the placement of an inmate on the

restraining bar in circumstances such as those before this court were sufficient to defeat the defendants’ claim of qualified immunity on the plaintiff’s due process claim. The plaintiff simply has not, and cannot under the applicable caselaw at the relevant time, defeated the claim of qualified immunity.
D. The Wrongfulness of the Defendants’ Conduct Was “Readily Apparent” The plaintiff also asserts that the defendants are not entitled to qualified immunity because their violation of the plaintiff’s rights was so readily apparent that clarifying law is not necessary. The plaintiff premises this argument on the fact that the Supreme Court recognized the unconstitutionality of the pillory11 almost one hundred years ago. See Weems v. United States, 217 U.S. 349, 376–79, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1909). The plaintiff asserts that “the main difference between the pillory of times past and the hitching post of today is that modern technology has substituted metal shackles for the ‘holes’ that used to be constructed of movable boards.” (Doc. 42, p. 5).
*13 In support of the claim that the defendants are not entitled to qualified immunity, the plaintiff cites Smith v. Mattox, 127 F.3d 1416 (11th Cir.1997), involving the district court’s denial of a defendant’s claim of qualified immunity in an excessive force case under § 1983. In affirming the district court’s denial of immunity, the Eleventh Circuit, after reciting the black-letter law concerning immunity, stated that “Fourth Amendment jurisprudence has staked no bright line for identifying force as excessive.” Smith, 127 F.3d at 1419. The court went on:
Smith cites no Fourth Amendment case, and this court has located none, in which a police officer subjected a previously threatening and fleeing arrestee to nondeadly force after the arrestee suddenly became docile. Smith therefore must show that Mattox’s conduct was so far beyond the hazy border between excessive and acceptable force that Mattox had to know he was violating the Constitution even without caselaw on point. Smith does so, but barely. The hazy border between permissible and forbidden force is marked by a multifactored, case-by-case balancing test. The test requires weighing of all the circumstances, such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” In this inquiry, the officer’s intent, whether evil or good, is irrelevant.
The grunt and the blow that Smith asserts that he heard and felt while Mattox was on Smith’s back, coupled with the severity of Smith’s injury, push this case over
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Hope v. Pelzer, Not Reported in F.Supp.2d (2000)

the line.... We thus conclude that this case falls within the slender category of cases in which the unlawfulness of the conduct is readily apparent even without clarifying caselaw.
Mattox, 127 F.3d at 1419 (footnotes omitted)(emphasis added).
That the law on the use of the restraining bar was not “clearly established” as of the time of the defendants’ conduct is amply demonstrated by the differing magistrate judge opinions cited by the parties dealing with the issue. The court further finds that the defendants’ alleged conduct in this case does not fall “within the slender category of cases in which the unlawfulness of the conduct is readily apparent even without clarifying caselaw.” Mattox, 127 F.3d at 1419.

V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that the defendants’ special reports be treated as motions for summary judgment and, as such, that the motions be GRANTED and this action is DISMISSED WITH PREJUDICE.
Any party may file specific written objections to this report and recommendation within ten (10) days from the date it is served in accordance with 28 U.S.C. § 636(b)(1).
The Clerk is DIRECTED to serve a copy of this report and recommendation upon the counsel for the plaintiff and upon counsel for the defendants.
*14 DONE, this the 10th day of March, 2000.

	  

Footnotes

1

Although the plaintiff purports to seek injunctive and declaratory relief in addition to damages (see doc. 1, p. 3), it is clear that his

claims relate to completed acts in the past for which damages would be the only avenue of relief. Further, as the plaintiff has been

released from the Alabama correctional system, he is no longer housed at the Limestone Correctional Facility where these claims

are alleged to have occurred; therefore, he no longer has standing to seek injunctive relief. See City of Los Angeles v. Lyons, 461

U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Tucker v. Phyfer, 819 F.2d 1030 (11th Cir.1987). Although the plaintiff’s claims

for injunctive relief have been rendered moot due to his release, the “[t]ransfer [or release] of a prisoner does not moot a claim for

money damages.” Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir.1985), (citing McKinnon v. Talladega County, 745 F.2d 1360,

1362 (11th Cir.1984)).

2

References herein to “Doc. __” are to the particular pleading number assigned by the Clerk of the Court and located in the lower

right-hand corner of the document.

3

Officer Dempsey is not named as a defendant herein.

4

According to the defendants, at approximately 10:30 a.m., Officer James Kent instructed the inmates on the bus to exit. After the

order was repeated several times and five inmates, including the plaintiff failed to respond, Officer Loggins entered the bus and

instructed the plaintiff to get off. The plaintiff responded to Loggins by saying “fuck you.” (Doc. 17, Ex. A, Kent Affidavit, pp.

1–2; Doc. 26, Loggins Affidavit, p. 2). He also started towards the officer in an aggressive manner. He reached out to grab Loggins

by the throat. (Id.). Officer Jackson stepped onto the bus and saw the plaintiff trying to grab Loggins around the neck. (Doc. 11,

Ex. 3, Jackson Affidavit, pp. 1–2). Jackson was trying to help Loggins with the plaintiff when they all tripped and fell off the bus.

Officers Loggins, Kent, Mealer, and the plaintiff fell on top of Jackson. (Id., pp. 1–2). Officer Joseph Stephenson observed the

officers and plaintiff fall off the bus from about thirty five yards away and ordered the remainder of the inmate squad to sit on the

ground. Officers Jackson, Loggins, and Kent handcuffed the plaintiff. (Doc. 11, Ex. 5, Stephenson Affidavit, pp. 1–2). Officer

Pelzer was conducting security checks on the other inmate squads and arrived at the scene after the altercation. He helped place leg

irons on the plaintiff and escorted him to the security vehicle. (Doc. 11, Pelzer Affidavit, pp. 1–2). The plaintiff was taken to the

health care unit at the institution at about 10:50 a.m.

5

In his affidavit, defendant McClaran states that he placed the plaintiff on the restraining bar. (Doc. 11, Ex. 2, p. 1).

6

“Once the qualified immunity defense is raised, plaintiffs bear the burden of showing that the federal ‘rights’ allegedly violated

were ‘clearly established.’ Barts, 865 F.2d at 1190 (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86

L.Ed.2d 411 (1985)).”

7

“We leave open the possibility that occasionally the words of a federal statute or federal constitutional provision will be specific

enough to establish the law applicable to particular circumstances clearly and to overcome qualified immunity even in the absence

of case law.”

8

Decisions of the former Fifth Circuit Court of Appeals handed down prior to October 1, 1981, are binding precedent. Bonner v.

9

Hope v. Pelzer, Not Reported in F.Supp.2d (2000)

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

9

In Gates, the record was replete with evidence of physical abuse and brutality. The court stated:

[Mississippi law] makes it illegal for any prison official other than the superintendent to order corporal punishment; and

where corporal punishment is expressly authorized by the superintendent, it is limited to the whip or lash, which is not to be

used for more than seven licks. While the evidence indicated that the lash had not been used at Parchman since 1965, the

record was replete with innumerable instances of physical brutality and abuse in disciplining inmates who are sent to

M[aximum] S[ecurity] U[nit]. These include 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 materials, 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. Indeed, the district court found the superintendent and other prison officials acquiesced in these

practices. Unquestionably, the district court correctly enjoined prison authorities from punishing inmates by these methods of

corporal punishment. We have no difficulty in reaching the conclusion that these forms of corporal punishment run afoul of

the Eighth Amendment, offend contemporary concepts of decency, human dignity, and precepts of civilization which we

profess to possess.

Gates, 501 F.2d at 1306.

10

The only reference to the identity of the guard is found in the Report and Recommendation of Magistrate Judge Vanzetta Penn

McPhershon in Austin v. James, Case No. 95–637. She states:

Officers gave Hope water perhaps as many as two times during the day. He remembered the incident because of the officers’

behavior on one of the occasions that he asked for water. Nearby were two officers who were assigned to the “dog truck,” the

vehicle used to search for escapees. Hope asked them for water, but they teased him about being on the hitching post. He then

asked another officer, one Odium, for water. In response, Odium went to the guard house and filled a cooler with ice and

water, ostensibly to return it to Hope. Then one of the officers from the dog truck told him not to give Hope water. Odium

obeyed and set the cooler on the ground near Hope; the dog truck officer removed pans from his truck, filled them with water

from the cooler and “watered the dogs.” ... When he finished watering the dogs, the officer approached Hope with the cooler

as if to give him water. Before he did so, however, he set the cooler on the ground perhaps three feet from Hope, “took the top

off” and “kicked it over” so that the water ran onto the ground.... At that point, Hope had not been given water for two hours.

Another hour passed before he was given any more....

(Doc. 33, Ex. 2, pp. 43–44).

11

“Pillory” is defined as “[a] wooden framework with holes through which an offender’s head and hand are placed. A person put in a

pillory usu[ally] had to stand rather than sit (as with the stocks). Black’s Law Dictionary 1168 (7th ed.1999).

	  

10

 
 CM/ECF - U.S. District Court Northern District of Alabama - Docket R... https://ecf.alnd.uscourts.gov/cgi-bin/DktRpt.pl?634839181789233-L_9...
CLOSED, REOPEN, STAYED
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:96-cv-02968-KOB

Hope, et al v. Pelzer, et al Assigned to: Judge Karon O Bowdre Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Larry Hope
V. Defendant Mark Pelzer Sergeant, Correctional Officer II

Date Filed: 11/14/1996 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Craig T Jones EDMOND & JONES PC The Candler Building, Suite 410 127 Peachtree Street, NE Atlanta, GA 30303 1-404-525-1080 ATTORNEY TO BE NOTICED
James A Mendelsohn Post Office Box 130426 Birmingham, AL 35213 205-566-2491 Email: jmendel@bellsouth.net ATTORNEY TO BE NOTICED
represented by Andrew W Redd ALABAMA DEPARTMENT OF TRANSPORTATION LEGAL BUREAU 1409 Coliseum Blvd. Montgomery, AL 36110 1-334-242-6965 Fax: 1-334-264-4359 Email: redda@dot.state.al.us ATTORNEY TO BE NOTICED
Ellen R Leonard OFFICE OF THE ATTORNEY GENERAL Alabama State House 11 South Union Street Montgomery, AL 36130-0152 334-242-7555 Fax: 334-242-2433

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Defendant McClaran Correctional Officer I TERMINATED: 08/20/2004
Defendant

Email: Consumerfax@ago.state.al.us ATTORNEY TO BE NOTICED
Kim T Thomas STATE OF ALABAMA DEPARTMENT OF CORRECTIONS LEGAL DIVISION 301 South Ripley Street PO Box 301501 Montgomery, AL 36130-1501 1-334-353-3884 Fax: 1-334-353-3891 Email: courtorders@doc.state.al.us ATTORNEY TO BE NOTICED
Troy R King OFFICE OF THE ATTORNEY GENERAL Alabama State House 11 South Union Street Montgomery, AL 36130 334-242-7401 Fax: 334-242-4891 Email: mjackson@ago.state.al.us ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Kim T Thomas (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED

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Kent Correctional Officer I TERMINATED: 08/20/2004
Defendant MaGuee Correctional Officer I TERMINATED: 08/20/2004
Defendant Laugan Correctional Officer I TERMINATED: 08/20/2004

represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Kim T Thomas (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004

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Defendant Gates Lieutenant TERMINATED: 08/20/2004
Defendant Jackson Correctional Officer I TERMINATED: 08/20/2004

ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Craig T Jones (See above for address) ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
James A Mendelsohn (See above for address) ATTORNEY TO BE NOTICED
Kim T Thomas (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Kim T Thomas (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004

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Defendant Officer Stephen COI TERMINATED: 08/20/2004
Defendant Keith Gates Correctional Officer I
Defendant Gene . McClaran Correctional Officer I

ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Kim T Thomas (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
Troy R King (See above for address) TERMINATED: 08/20/2004 ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) ATTORNEY TO BE NOTICED
Kim T Thomas (See above for address) ATTORNEY TO BE NOTICED
Troy R King (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Redd (See above for address) ATTORNEY TO BE NOTICED
Ellen R Leonard (See above for address) ATTORNEY TO BE NOTICED
Kim T Thomas

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(See above for address) ATTORNEY TO BE NOTICED
Troy R King (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/14/1996 11/14/1996 11/21/1996
12/11/1996 12/31/1996
01/07/1997
01/09/1997 02/10/1997 02/19/1997 02/25/1997 02/27/1997
02/28/1997 03/10/1997

#

Docket Text

1 COMPLAINT filed (referred to Magistrate-Judge T M. Putnam ) (SRJ) (Entered: 11/14/1996)
2 DECLARATION by plaintiff Larry Hope in support of request to proceed in forma pauperis filed (SRJ) Modified on 11/14/1996 (Entered: 11/14/1996)
3 ORDER that the pla shall submit partial payments until the $120.00 filing fee is paid in full filed ( by Magistrate-Judge T M. Putnam ) cm (KAM) (Entered: 11/21/1996)
FILING FEE paid: on 12/9/96 in the amount of $ 13.3 receipt # 200 108111. (KAM) (Entered: 12/11/1996)
4 ORDER ( Special Report) ; dft to file a special report by 3/3/97 as set out in this order filed ( Magistrate-Judge T M. Putnam ) cm with complaint attached (CJV) (Entered: 12/31/1996)
5 ORDER that the pla has paid a partial filing fee in the amount of $13.30; the warden shall deduct from the pla's account until the $120 filing fee is paid in full filed ( by Magistrate-Judge T M. Putnam ) cm (KAM) (Entered: 01/07/1997)
FILING FEE paid: on 1/8/97 in the amount of $ .30 receipt # 200 108786. (KAM) (Entered: 01/09/1997)
FILING FEE paid: on 2/7/97 in the amount of $ 3.3 receipt # 200 109612. (KAM) (Entered: 02/10/1997)
6 MOTION by plaintiff Larry Hope to supplement record to include photographs filed (KAM) (Entered: 02/19/1997)
7 MOTION by plaintiff Larry Hope to supplement [7-1] filed (KAM) (Entered: 02/25/1997)
8 MOTION by defendant Mark Pelzer, defendant McClaran, defendant Kent, defendant MaGuee, defendant Laugan, defendant Gates, defendant Jackson, defendant Stephen to extend time to answer by 20 days filed cs (KAM) (Entered: 02/27/1997)
9 8 - ORDER granting motion to extend time to answer by 20 days [8-1] ( by Magistrate-Judge T M. Putnam ) entered cm (KAM) (Entered: 03/03/1997)
FILING FEE paid: on 3/10/97 in the amount of $ .30 receipt # 200 110435. (KAM) (Entered: 03/11/1997)

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03/10/1997 03/24/1997
04/07/1997 04/07/1997 04/07/1997 04/09/1997
04/14/1997 04/24/1997 04/24/1997 05/06/1997 05/06/1997 05/20/1997
05/21/1997
06/11/1997 06/26/1997 07/14/1997 07/22/1997
07/22/1997

10 MOTION by plaintiff Larry Hope to compel medical records filed cs (KAM) (Entered: 03/11/1997)
11 SPECIAL report by defendant Mark Pelzer, defendant McClaran, defendant MaGuee, defendant Gates, defendant Jackson, defendant Stephen filed cs (KAM) (Entered: 03/25/1997)
12 10 - ORDER denying motion to compel medical records [10-1] ( by Magistrate-Judge T M. Putnam ) entered cm (KAM) (Entered: 04/09/1997)
13 6 - ORDER granting motion to supplement record to include photographs [6-1] ( by Magistrate-Judge T M. Putnam ) entered cm (KAM) (Entered: 04/09/1997)
14 7 - ORDER granting motion to supplement [7-1] [7-1] ( by Magistrate-Judge T M. Putnam ) entered cm (KAM) (Entered: 04/09/1997)
15 ORDER that counsel for the DOC shall within 20 days inform th ecourt whether Officers Kent and Loggins continue to be employed by DOC filed ( by Magistrate-Judge T M. Putnam ) cm (KAM) (Entered: 04/09/1997)
FILING FEE paid: on 4/14/97 in the amount of $ .30 receipt # 200 111440. (KAM) (Entered: 04/16/1997)
16 RESPONSE by defendant order [15-1] filed cs (KAM) (Entered: 04/24/1997)
17 SPECIAL report by defendant Kent filed cs (KAM) (Entered: 04/24/1997)
18 MOTION by plaintiff Larry Hope for entry of default as to Kent, Laugan filed (KAM) (Entered: 05/07/1997)
FILING FEE paid: on 5/6/97 in the amount of $ .30 receipt # 200 112076. (KAM) (Entered: 05/08/1997)
19 18 - ORDER denying plff's motion for entry of default as to Kent, Laugan [18-1] ( by Magistrate-Judge T M. Putnam ) entered cm (Former Employee) (Entered: 05/21/1997)
20 ORDER that Clerk is directed to send copy of court's order for special report to Ted Loggins; dft Loggins to respond within 30 days filed ( by Magistrate-Judge T M. Putnam ) cm (Former Employee) (Entered: 05/21/1997)
FILING FEE paid: on 6/11/97 in the amountof $3.30 receipt #200113097. (Former Employee) (Entered: 06/12/1997)
21 MOTION by plaintiff Larry Hope for entry of default as to Mark Pelzer filed cs (KAM) (Entered: 06/27/1997)
FILING FEE paid: on 7/14/97 in the amount of $ 3.30 receipt # 200 114036. (KAM) (Entered: 07/15/1997)
22 ORDER denying motion for entry of default as to Mark Pelzer [21-1]; the clerk is directed to issue summons to dft Ted Loggins filed ( by Magistrate-Judge T M. Putnam ) cm (Former Employee) (Entered: 07/22/1997)
SUMMONS and complaint issued to dft Ted Loggins, c/o Beasley Produce, South Marion Street, Athens, AL 35611; mailed cert mail, return receipt requested per order [doc 22] (Former Employee) (Entered: 07/22/1997)

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07/24/1997 08/06/1997 08/13/1997 08/21/1997 09/02/1997 10/14/1997 10/14/1997
10/17/1997 10/17/1997 10/17/1997 10/22/1997 11/03/1997 11/03/1997 11/05/1997
04/10/1998 11/19/1998 02/19/1999 02/22/1999

23 SUMMONS and complaint returned executed: upon defendant Laugan (Ted Loggins) on 7/23/97 filed (Former Employee) (Entered: 07/24/1997)
FILING FEE paid: on 8/6/97 in the amount of $ 3.30 receipt # 200 114844. (KAM) (Entered: 08/07/1997)
24 NOTICE by plaintiff Larry Hope of change of address filed (KAM) (Entered: 08/14/1997)
25 MOTION by plaintiff Larry Hope for entry of default as to Laugan filed (KAM) (Entered: 08/25/1997)
26 SPECIAL report (supplemental) by defendant Laugan filed cs (KAM) (Entered: 09/03/1997)
27 25 - ORDER denying motion for entry of default as to Laugan [25-1] ( by Magistrate-Judge T M. Putnam ) entered cm (KAM) (Entered: 10/15/1997)
28 ORDER that dfts' special report will be treated as a motion for summary judgment: plff is afforded 20 days to respond in accordance w/provision of Rule 56, filed ( Magistrate-Judge T M. Putnam ) cm (KAM) (Entered: 10/15/1997)
29 NOTICE of appearance for plaintiff Larry Hope by James Alan Mendelsohn filed cs (KAM) (Entered: 10/21/1997)
30 RESPONSE by plaintiff Larry Hope special report [26-1] filed cs (KAM) (Entered: 10/21/1997)
31 MOTION by plaintiff Larry Hope for attorney Craig T. Jones to appear pro hac vice filed cs (KAM) (Entered: 10/21/1997)
PRO HAC VICE admission fee paid on 10/22/97 receipt # 200 118961 in the amount of $50.00 (KAM) (Entered: 10/23/1997)
32 AFFIDAVIT of Larry Hope filed cs (KAM) (Entered: 11/03/1997)
33 RESPONSE by plaintiff Larry Hope special report [26-1] filed cs (KAM) (Entered: 11/03/1997)
34 31 - ORDER granting motion for attorney Craig T. Jones to appear pro hac vice [31-1] ( by Judge Sharon L. Blackburn ) entered cm (KAM) (Entered: 11/05/1997)
DOCKET modification (utility event) Case referred to Magistrate-Judge John E. Ott (Former Employee) (Entered: 04/10/1998)
35 NOTICE of reassignment Case reassigned to Judge H D. Buttram cm (KAM) (Entered: 11/19/1998)
37 RESPONSE by defendant order [36-1] filed cs (Former Employee) (Entered: 02/22/1999)
36 ORDER dfts 10 days to file briefs in support of motions for sumjgm; plas 10 days to respond; thereafter motions will be deemed submitted filed ( by Magistrate-Judge John E. Ott ) cm (Former Employee) (Entered: 02/22/1999)

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11/26/1999 12/29/1999 12/29/1999 03/08/2000 03/08/2000 03/08/2000 03/10/2000 03/10/2000
03/20/2000 03/24/2000 03/24/2000
04/24/2000 04/24/2000 05/02/2000 05/10/2000 05/26/2000

38 BRIEF by plaintiff Larry Hope in opposition to dft's motoin for summary judgment filed cs (KAM) (Entered: 11/29/1999)
39 MOTION by plaintiff Larry Hope to stay filed cs (Former Employee) (Entered: 12/29/1999)
40 BRIEF in support of motion to stay by plaintiff Larry Hope filed cs (Former Employee) (Entered: 12/29/1999)
41 COMPLAINT (amended-supplemental) deemed filed 2/10/97 filed (Former Employee) (Entered: 03/08/2000)
42 BRIEF (supplemental) in opposition to summary judgment by plaintiff Larry Hope deemed filed 12/29/97 filed cs (Former Employee) (Entered: 03/08/2000)
43 BRIEF (second supplemental) in oppoosition to dfts' motion for summary judgment by plaintiff Larry Hope deemed filed 3/1/99 filed cs (Former Employee) Modified on 03/08/2000 (Entered: 03/08/2000)
44 39 - ORDER denying motion to stay [39-1] ( by Magistrate-Judge John E. Ott ) entered cm (Former Employee) (Entered: 03/10/2000)
45 Report and Recommendation that dfts' special reports be treated as motions for sumjgm that motions be granted and this action is dismissed w/prejudice; objs w/in 10 days filed ( by Magistrate-Judge John E. Ott ) cm (Former Employee) (Entered: 03/10/2000)
46 OBJECTIONS by plaintiff Larry Hope to [45-1] filed cs w/exhibits attached (KAM) (Entered: 03/20/2000)
47 MEMORANDUM opinion filed ( by Judge H D. Buttram ) cm (Former Employee) (Entered: 03/24/2000)
48 ORDER in accordance w/the memorandum entered contemporaneously herewith [47-1], adopting Report and Recommendation that dfts' special reports be treated as motions for sumjgm that motions be granted and this action is dismissed w/prejudice; costs taxed to pla and as further set out in this order [45-1] terminating case as set out in this order filed ( by Judge H D. Buttram ) cm (Former Employee) (Entered: 03/24/2000)
49 NOTICE of appeal by plaintiff Larry Hope from District Court decision [48-2] ; notice of appeal, order appealed from and court copy of docket entries w/transmittal letter mailed cm (KAM) (Entered: 04/25/2000)
APPEAL fee received in amount of $ 105.00 rec # 200 150148 (KAM) (Entered: 04/25/2000)
NOTIFICATION by Circuit Court of Appellate docket number 00-12150DD (Former Employee) (Entered: 05/02/2000)
APPEAL fee received in amount of $ 105.00 filing fee and $25.00 return check (Former Employee) (Entered: 05/10/2000)
50 ORDER that pla was permitted to proceed w/o prepayment of entire filing fee; pla has paid entire appellate filing fee of $105.00; consequently provisions of 28:1915(a)(3) and FRAP 24(a) do not apply and no dterminatino as to whether

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07/11/2000 07/11/2000 05/17/2001 03/13/2002 09/17/2002 10/17/2002 10/17/2002
11/26/2002 12/02/2002 01/06/2003 01/07/2003
04/24/2003 04/28/2003
05/02/2003 10/20/2003 01/21/2004 01/22/2004

his appeal is taken in good faith is required and as further set out in this order filed ( by Judge H D. Buttram ) cm (Former Employee) (Entered: 05/26/2000)
CERTIFICATE of readiness issued cm (Former Employee) (Entered: 07/11/2000)
CERTIFIED record on appeal with certified copy of docket entries and transmittal mailed USCA cm (Former Employee) (Entered: 07/11/2000)
51 CERTIFIED copy of Appellate Court order: affirming the decision of the District Court [49-1] filed (Former Employee) (Entered: 05/17/2001)
ORIGINAL court file mailed to U. S. Supreme Court with certified copy of docket entries cm (Former Employee) (Entered: 03/13/2002)
52 NOTICE of reassignment Case assigned to Judge Karon O. Bowdre cm (MAA) (Entered: 10/17/2002)
DOCKET modification (utility event) Case reopened (MAA) (Entered: 10/17/2002)
53 CERTIFIED copy of Appellate Court order: reversing and remanding the decision of the District Court [Appeal [0-0] issued as mandate 10/15/02 with memorandum opinion consistent with the Supreme Court's opinion attached Judges Tjoflat, Birch and Vining filed (MAA) (Entered: 10/17/2002)
Original APPEAL Record returned by US Supreme Court; 1 vol pldgs, 1 exp folder (KWC) Modified on 11/27/2002 (Entered: 11/27/2002)
54 ORDER Joint status rpt (Notice of Compliance) ddl 4:30 1/6/03 as set out filed ( by Judge Karon O. Bowdre ) cm (KWC) (Entered: 12/02/2002)
55 Joint status rpt, NOTICE of compliance by plaintiff, defendant with [54-1] filed cs (KWC) (Entered: 01/06/2003)
56 ORDER staying case for 90 days pla counsel is ordered to rport status of McDonald court's decision as soon as ruling is issued, or w/in 90 days, whichever is sooner; filed ( by Judge Karon O. Bowdre ) cm (KWC) (Entered: 01/07/2003)
57 MOTION by plaintiff Larry Hope for order for leave of absence for atty Craig T Jones from 07/28/03 - 08/08/03 filed cs (KWC) (Entered: 04/24/2003)
58 ORDER to show cause-plaintiff is ordered to SHOW CAUSE why this case should not be dismissed for failure to comply with this court's Order filed ( by Judge Karon O. Bowdre ) cm (KSS) (Entered: 04/28/2003)
59 RESPONSE by plaintiff Larry Hope to show cause order [58-1] filed cs (KWC) (Entered: 05/02/2003)
DOCKET modification (utility event) terminating case referral to Magistrate-Judge John E. Ott per JEO (PGS) (Entered: 10/20/2003)
61 REQUEST by pla for copy of District Court opinion granting dfts' motion for sumjgm filed no cs (KLL) (Entered: 01/26/2004)
60 57 - ORDER finding the motion for order for leave of absence for atty Craig T Jones from 07/28/03 - 08/08/03 [57-1] moot ( by Judge Karon O. Bowdre )

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01/26/2004 02/03/2004 02/04/2004 06/21/2004 06/30/2004 07/07/2004 07/14/2004 07/16/2004 07/19/2004 07/21/2004
07/26/2004 07/27/2004 08/05/2004 08/09/2004 08/09/2004 08/16/2004 08/20/2004

entered cm (KLL) (Entered: 01/22/2004)
REMARK correspondence sent to pla re cost of copies of documents #47 & 48 (KLL) (Entered: 01/26/2004)
62 REQUEST (motion) by pla for copy of court opinion filed w/payment (receipt #200 199837) no cs (KLL) (Entered: 02/04/2004)
REMARK copies of requested documents mailed to pla (KLL) (Entered: 02/04/2004)
63 JOINT STATUS REPORT ORDER: parties to submit joint status report by 6/30/04 filed ( by Judge Karon O. Bowdre ) cm (KLL) (Entered: 06/21/2004)
64 NOTICE of compliance (joint status report) by parties with court's order[63-2] filed (KLL) (Entered: 07/02/2004)
65 REQUEST by plaintiff Larry Hope for copy of the joint status report filed (MAA) (Entered: 07/08/2004)
66 ORDER scheduling conf set for 10:00 am on 7/20/04 in judge's chambers filed ( by Judge Karon O. Bowdre ) cm (KLL) (Entered: 07/14/2004)
67 MOTION by dft to continue 7/20/04 scheduling conf filed cs (KLL) (Entered: 07/19/2004)
68 67 - ORDER finding the motion to continue 7/20/04 scheduling conf [67-1] moot ( by Judge Karon O. Bowdre ) entered cm (KLL) (Entered: 07/20/2004)
69 ORDER (Scheduling) that certain ddls apply as set out: discovery cutoff 10/20/04; pre-trial conf set 12/17/04 in judge's chambers; joint status report by parties due 10/20/04; pla ddl to amend pldgs/join addl parties 8/9/04, dft ddl to amend pldgs/join addl parties 9/9/04; dispositive motions due 11/3/04 and must comply w/Exh A to scheduling order located on court's website by Judge Karon O. Bowdre entered cm (KLL) (Entered: 07/21/2004)
70 NOTICE by plaintiff of change of address to Atmore, AL filed (KLL) (Entered: 07/27/2004)
71 OBJECTIONS by dfts to scheduling order [69-1] filed cs (KLL) (Entered: 07/28/2004)
72 71 -ORDER that dfts' objections to scheduling order are noted and overruled ( by Judge Karon O. Bowdre ) entered cm (KLL) (Entered: 08/06/2004)
73 MOTION by pla to amend complaint filed w/exhs att cs (KLL) (Entered: 08/10/2004)
74 BRIEF in support of motion to amend complaint by plaintiff filed cs (KLL) (Entered: 08/10/2004)
75 OBJECTIONS by dft to motion to amend [73-1] filed cs (KLL) (Entered: 08/17/2004)
76 73 - ORDER granting motion to amend complaint [73-1] ( by Judge Karon O. Bowdre ) entered cm (KLL) (Entered: 08/23/2004)

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08/20/2004
09/09/2004 10/15/2004 10/20/2004 10/26/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004
11/03/2004
11/03/2004
11/03/2004 11/03/2004 11/03/2004 11/08/2004
11/22/2004 11/23/2004

77 AMENDED complaint filed by plaintiff [1-1]; jury demand terminating party McClaran, party Kent, party Jackson, party MaGuee, party Laugan, party Gates, party Stephen; correcting named dfts Keith Gates, and Gene McClaran filed cs (KLL) (Entered: 08/23/2004)
78 ANSWER to amended complaint by dfts filed cs (KLL) (Entered: 09/10/2004)
79 REQUEST by pla for case status filed no cs (KLL) (Entered: 10/26/2004)
80 NOTICE of compliance (joint status report) by parties with [69-1] filed (KLL) (Entered: 10/21/2004)
81 REQUEST by plaintiff for copy of joint status report filed no cs (KLL) (Entered: 10/27/2004)
82 MOTION by pla Larry Hope for summary judgment filed cs (MAA) Modified on 11/04/2004 (Entered: 11/04/2004)
83 BRIEF in support of pla's motion for sumjgmby plaintiff Larry Hope filed cs (MAA) (Entered: 11/04/2004)
84 MOTION by defendant Mark Pelzer, defendant Keith Gates, defendant Gene . McClaran for summary judgment filed cs (MAA) (Entered: 11/04/2004)
85 BRIEF by defendant Mark Pelzer, defendant Keith Gates, defendant Gene . McClaran in support of dft's motion for sumjgm filed cs (MAA) (Entered: 11/04/2004)
86 SUBMISSION of discovery by defendant Mark Pelzer, defendant Keith Gates, defendant Gene . McClaran in support of motion for sumjgm (in expandable folder) filed cs (MAA) (Entered: 11/04/2004)
87 NOTICE of the filing of depositions of Mark Pelzer, Gene McClaran and Keith Gates filed by plaintiff Larry Hope (all depos in expandable folder) cs (MAA) Modified on 11/04/2004 (Entered: 11/04/2004)
88 DEPOSITION of Mark Pelzer taken on behalf of: pla filed (MAA) (Entered: 11/04/2004)
89 DEPOSITION of Gene McClaran taken on behalf of: pla filed (MAA) (Entered: 11/04/2004)
90 DEPOSITION of Keith Gates taken on behalf of: pla filed (MAA) (Entered: 11/04/2004)
91 ORDER (Submission) that the motion for summary judgment filed by pla [84-1] is submitted, that the motion for summary judgment filed by dfts [82-1] is submitted: Responsive Brfs Due by 11/23/04, Reply Brfs Due by 12/3/04 all submissions should comply w/Exh A to scheduling order located on court's website filed ( Judge Karon O. Bowdre ) cm (KLL) (Entered: 11/08/2004)
92 RESPONSE in Opposition to 84 Motion for Summary Judgment filed by Larry Hope. (KLL, ) (Entered: 11/23/2004)
93 RESPONSE to 82 Motion for Summary Judgment filed by dfts Keith Gates, Gene. McClaran, Mark Pelzer. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit

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11/30/2004 12/14/2004 12/15/2004 12/16/2004
12/22/2004 12/22/2004 03/02/2005 03/04/2005 03/11/2005 03/18/2005
04/14/2005 04/22/2005 08/10/2005 09/12/2005

# 4 Exhibit # 5 Exhibit # 6 Exhibit)(KLL, ) (Entered: 11/23/2004)
94 ORDER converting previously scheduled pretrial conference into a status conference to be held 12/17/04 at 10:00 in judge's chambers. Signed by Judge Karon O Bowdre on 11/29/2004. (KLL, ) (Entered: 11/30/2004)
95 ORDER that Status Conference RESCHEDULED for 12/22/2004 at 1:30 PM in judge's chambers. Signed by Judge Karon O Bowdre on 12/14/04. (KLL, ) (Entered: 12/14/2004)
96 MOTION to Continue status conference by dfts (KLL, ) (Entered: 12/16/2004)
Motions terminated: doc # 96. MOTION to Continue status conference filed by the defendants is granted. The status conference is RESET for 12/22/2004 01:30 PM in the chambers of the undersigned. Signed by Judge Karon O Bowdre on 12-16-04. (KOBLC2, ) (Entered: 12/16/2004)
97 ORDER: Pretrial Conference set for 4/15/2005 02:00 PM in Courtroom 5 before Judge Karon O Bowdre. Signed by Judge Karon O Bowdre on 12/22/2004. (KLL, ) (Entered: 12/22/2004)
98 REQUEST for status of scheduling order entered 7/21/04 by Larry Hope (KLL, ) (Entered: 12/23/2004)
99 REQUEST for status of case by Larry Hope (KLL, ) (Entered: 03/03/2005)
100 ORDER: Pretrial Conference RESCHEDULED for 4/22/2005 at 2:00 PM in judge's chambers. Signed by Judge Karon O Bowdre on 3/4/05. (KLL, ) (Entered: 03/04/2005)
101 MOTION to Continue by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 03/11/2005)
ORDER granting 101 Motion to Continue pretrial conference currently scheduled for April 22, 2005. The pretrial conference is RESET for May 2, 2005 at 10:00 a.m. in the chambers of the undersigned. Signed by Judge Karon O Bowdre on 03-18-05. (KOBLC2, ) (Entered: 03/18/2005)
102 Joint MOTION to Continue by Keith Gates, Larry Hope, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 04/14/2005)
103 ORDER granting 102 Joint MOTION to Continue; Pretrial Conference RESCHEDULED for 8/26/2005 at 10:00 AM in judge's chambers. Signed by Judge Karon O Bowdre on 4/22/05. (KLL, ) (Entered: 04/22/2005)
104 ORDER: Pretrial Conference RESCHEDULED for 9/26/2005 at 10:00 AM in judge's chambers. Signed by Judge Karon O Bowdre on 8/10/05. (KLL, ) (Entered: 08/10/2005)
105 ORDER that pretrial conference set for 10:00 am on 9/26/05 is hereby AMENDED to include a hearing on the pending motions; pla is ordered to provide in writing by 9/20/05 proof of compliance with Sec 1997 or legal authority to justify his non-compliance; pla is further ordered to provide in writing by 9/15/05 specific citations to the record in support of the allegations made in paragraph nine of pla's brief in suppoprt of pla's motion for summary judgment; pla and dfts are ordered to address in writing by 9/20/05 whether pla's

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09/18/2005 09/19/2005 09/19/2005 09/26/2005
09/28/2005
09/28/2005 09/28/2005
10/07/2005 10/19/2005
10/21/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/25/2005 10/25/2005

claims for declaratory and injunctive relief are moot; parties are reminded to comply with the pertinent requirements set forth in doc #97. Signed by Judge Karon O Bowdre on 9/12/05. (KLL, ) (Entered: 09/12/2005)
106 RESPONSE to re 105 filed by Larry Hope. (Mendelsohn, James) (Entered: 09/18/2005)
107 RESPONSE to re 105 regarding moot claims filed by Larry Hope. (Mendelsohn, James) (Entered: 09/19/2005)
108 RESPONSE to Court's Order of September 12, 2005 filed by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 09/19/2005)
Minute Entry for proceedings held before Judge Karon O Bowdre : Motion Hearing held on 9/26/2005 re motions for summary judgment. Oral arguments of counsel. Pretrial conference held on 9/26/2005. Written orders to be entered. (Court Reporter Teresa Roberson.) (PRW) (Entered: 09/26/2005)
109 MEMORANDUM OPINION & ORDER denying 82 Pla's Motion for Summary Judgment, denying 84 Dfts' Motion for Summary Judgment, and dismissing as moot pla's claims for declaratory and injunctive relief. Signed by Judge Karon O Bowdre on 9/28/05. (KLL, ) (Entered: 09/28/2005)
110 PRETRIAL ORDER; jury trial set for 11/7/05 in Bham, AL. Signed by Judge Karon O Bowdre on 9/28/05. (KLL, ) (Entered: 09/28/2005)
111 ORDER: Jury Trial set for 11/7/2005 at 09:00 AM in Courtroom 5-A in Birmingham, AL before Judge Karon O Bowdre. (cm to ALDOC Central Records Office as instructed). Signed by Judge Karon O Bowdre on 9/28/05. (KLL, ) (Entered: 09/28/2005)
112 Witness List and Exhibit List by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 10/07/2005)
113 MOTION in Limine and supporting brief by Keith Gates, Gene. McClaran, Mark Pelzer. (Attachments: # 1 Exhibit Exhibit 1)(Leonard, Ellen) (Entered: 10/19/2005)
114 Proposed Jury Instructions by Keith Gates, Larry Hope, Gene. McClaran, Mark Pelzer. (Mendelsohn, James) (Entered: 10/21/2005)
115 Exhibit List by Larry Hope.. (Mendelsohn, James) (Entered: 10/24/2005)
116 Witness List by Larry Hope. (Mendelsohn, James) (Entered: 10/24/2005)
117 Opposition to Plaintiff's Exhibit List filed by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 10/24/2005)
118 TRIAL BRIEF by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 10/24/2005)
119 MOTION for Extension of Time to File List of Exhibits and List of Damages by Larry Hope. (Mendelsohn, James) (Entered: 10/25/2005)
120 DAMAGE list of Larry Hope filed.. (Mendelsohn, James) (Entered: 10/25/2005)

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10/25/2005 10/25/2005 10/27/2005 10/31/2005 11/07/2005 11/07/2005 11/07/2005
11/08/2005
11/21/2005 05/04/2006

ORDER granting 119 Motion for Extension of Time to File . Signed by Judge Karon O Bowdre on 10-25-2005. (BAC, ) (Entered: 10/25/2005)
121 MOTION to Amend/Correct 112 Witness List by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 10/25/2005)
ORDER granting 121 Motion to Amend/Correct . Signed by Judge Karon O Bowdre on 10-27-2005. (BAC, ) (Entered: 10/27/2005)
122 RESPONSE in Opposition re 113 MOTION in Limine filed by Larry Hope. (Mendelsohn, James) (Entered: 10/31/2005)
123 Jury Strikes of plaintiff Larry Hope filed.(PRW) (Entered: 11/08/2005)
124 Jury Strikes of defendants filed.(PRW) (Entered: 11/08/2005)
Minute Entry for proceedings held before Judge Karon O Bowdre : Jury trial. Jury selection. Opening statements. Plaintiff's testimony. Oral motion of defendants for judgment as a matter of law. Granted. Jurors released. Adjournment (Court Reporter Teresa Roberson.) (PRW) (Entered: 11/08/2005)
125 ORDER DISMISSING CASE: dfts' motion for judgment as a matter of law is GRANTED and pla's claims against dfts are DISMISSED w/prejudice; costs taxed against pla. Signed by Judge Karon O Bowdre on 11/8/05. (KLL, ) (Entered: 11/08/2005)
126 BILL OF COSTS by Keith Gates, Gene. McClaran, Mark Pelzer. (Leonard, Ellen) (Entered: 11/21/2005)
127 Costs Taxed in amount of $ 1,147.10. against plaintiff, Larry Hope. (ECS, ) (Entered: 05/04/2006)

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 Docket for 01-309

http://www.supremecourtus.gov/docket/01-309.htm

No. 01-309 Status: DECIDED

Title: Larry Hope, Petitioner

v.

Mark Pelzer, et al.

Docketed:

Lower Ct: United States Court of Appeals for the Eleventh Circuit

August 21, 2001

(00-12150)

~~Date~~~~~~ Jul 28 2001 Jul 28 2001 Sep 26 2001 Oct 10 2001 Nov 9 2001 Nov 20 2001 Dec 28 2001 Jan 4 2002
Jan 29 2002
Feb 13 2002
Feb 19 2002 Feb 19 2002 Feb 21 2002 Feb 21 2002 Mar 20 2002 Mar 21 2002 Mar 25 2002

~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Petition for writ of certiorari filed. (Response due September 20, 2001) Supplemental Appendix of petitioner filed. DISTRIBUTED for Conference of October 12, 2001 Response requested. Brief of respondents Mark Pelzer, et al. in opposition filed. REDISTRIBUTED for Conference of December 7, 2001 REDISTRIBUTED for Conference of January 4, 2002 Petition GRANTED. SET FOR ARGUMENT April 17, 2002. ******************************************************** The order granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to the following questions: 1. Whether state officials sued in their individual capacities under 42 U.S.C. Section 1983 are entitled to qualified immunity unless they have violated statutory or constitutional rights 'clearly established' by a case presenting facts 'materially similar' to those in the plainfiff's case. 2. Whether under the circumstances that must be taken as true at the summary judgment of stage of this case, tying a prisoner to a 'hitching post' violates 'clearly estalished' constitutional rights for purposes of qualified immunity under 42 U.S.C. Section 1983." Time to file petitioner's brief extended to and including February 21, 2002. The brief must filed with the Clerk and served upon opposing counsel on Feb. 21, 2002. Rule 29.2 does not apply. Joint appendix filed. Brief amicus curiae of United States filed. Brief amici curiae of American Civil Liberties Union, et al. filed. Brief of petitioner Larry Hope filed. CIRCULATED. Record filed. Brief amici curiae of Missouri, et al. filed.

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Docket for 01-309

http://www.supremecourtus.gov/docket/01-309.htm

Mar 25 2002 Mar 25 2002 Mar 29 2002 Apr 1 2002 Apr 8 2002 Apr 12 2002 Apr 17 2002 Jun 27 2002
Jul 26 2002 Nov 21 2002

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. Brief of respondents Mark Pelzer, Gene McClaran, and Jim Gates filed. Motion of Missouri, et al. for leave to participate in oral argument as amici curiae and for divided argument filed. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Reply brief of petitioner Larry Hope filed. Motion of Missouri, et al. for leave to participate in oral argument as amici curiae and for divided argument GRANTED. ARGUED. Adjudged to be REVERSED. Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia, J., joined. JUDGMENT ISSUED. Record returned to the USDC N. Dist. of Alabama.

~~Name~~~~~~~~~~~~~~~~~~~~~ Attorneys for Petitioner: James Mendelsohn

~~~~~~~Address~~~~~~~~~~~~~~~~~~
1117 22nd Street South Birmingham, AL 35205

~~Phone~~~ 2059390000

Craig T. Jones Party name: Larry Hope

3166 Mathieson Dr. Suite 100 Atlanta, GA 30305

4048420851

Attorneys for Respondent: Ellen. Leonard
Party name: Mark Pelzer, et al.

Alabama Atty. General 11 South Union Street Montgomery, AL 36130

3342427333

Other Attorneys: Solicitor General

U.S. Department of Justice Washington, DC 20530

Mark R. Brown

Stetson University

7275627856

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Docket for 01-309

1401 61St Street, South St. Petersburg, FL 33707 Party name: American Civil Liberties Union, et al.

Gene C. Schaerr Party name: Missouri, et al.

Sidley Austin Brown Wood 1501 K Street, NW Washington, DC 20005

http://www.supremecourtus.gov/docket/01-309.htm
2027368000

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 US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

00-12150-DD Larry Hope v. Mark Pelzer

Closed
Docket #: 00-12150-DD Short Style: Larry Hope v. Mark Pelzer Docket Date: 04/27/2000 Lead Case:
Agency: Nature of Suit: Prisoner Petitions: Prison Conditions
Misc. Type: Clerk: Jackson, Elora
Clerk Phone: (404) 335-6173

District Information

Docket #: 96-02968-CV-BU-S Judge: H. Dean Buttram, Jr.

Dkt Date: 11/14/1996

District: Alabama-Northern

NOA Date: 04/24/2000

Office: NAL-Birmingham

Secondary Case Information

Docket #: Judge: John E. Ott Dkt Date: / /
Case Relationships

Docket # Short Style Relation Status

Pending Motions
No Pending Motions

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

00-12150-DD Larry Hope v. Mark Pelzer
LARRY HOPE,
Plaintiff-Appellant,
versus
MARK PELZER, Sergeant, Correctional Officer II, MCCLARAN, Correctional Officer I, KENT, Correctional Officer I, JACKSON, Correctional Officer I, MAGUEE, Correctional Officer I, STEPHEN, Officer, COI, LAUGAN, Correctional Officer I, GATES, Lieutenant,
Defendants-Appellees.

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court OF Appeals FOR the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

00-12150-DD Larry Hope v. Mark Pelzer

Appellant Larry Hope Address Not On File Appellant Brief Filed filed on 06.05.2000 Record Excerpts filed on 06.05.2000 Fees: Paid on 04.24.2000
Appellee Mark Pelzer Address Not On File
McClaran Address Not On File
Kent Address Not On File

Appellant Attorney
Craig Thomas Jones Edmond & Jones, LLP 127 PEACHTREE ST NE STE 410 ATLANTA, GA 30303-1800 (404) 525-1080 Fax: (404) 525-1073 ctj@edmondfirm.com No Briefing Information Found.
Appellee Attorney
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us Appellee Brief Filed filed on 07.11.2000
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.

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US Court of Appeals for the Eleventh Circuit
Jackson Address Not On File
Maguee Address Not On File
Stephen Address Not On File
Laugan Address Not On File
Gates Address Not On File
4 of 7

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.
Kim Tobias Thomas Alabama Department of Corrections PO BOX 301501 MONTGOMERY, AL 36130-1501 (334) 353-3885 Fax: (334) 353-3891 KThomas@DOC.State.al.us No Briefing Information Found.
Andrew Weldon Redd Alabama Department of Transportation 1409 COLISEUM BLVD MONTGOMERY, AL 36110-2060 (334) 242-6965 Fax: (334) 264-4359 redda@dot.state.al.us No Briefing Information Found.
8/7/2007 3:10 PM

US Court of Appeals for the Eleventh Circuit
Initial Service James Mendelsohn Attorney at Law PO BOX 130426 BIRMINGHAM, AL 35213-0426 (205) 566-2491 Fax: (205) 278-1400 jmendel@bellsouth.net Clerk 1 First Street, N.E. Washington, DC 20543-

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
Ellen R. Leonard Office of the Attorney General 11 S UNION ST MONTGOMERY, AL 36130-2102 (334) 353-8699 eleonard@ago.state.al.us No Briefing Information Found.
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

00-12150-DD Larry Hope v. Mark Pelzer

File Date

Entry

04/28/2000 Briefing Notice Issued

DKT7CIV (Docketing 7) issued. cc: Mathis, Perry D. cc: Jones, Craig 04/28/2000 Thomas cc: Redd, Andrew Weldon cc: Leonard, Ellen R. cc: Thomas,
Kim Tobias cc: Mendelsohn, James

05/02/2000 Probable Jurisdiction Noted

05/05/2000 Appearance Form Submitted: Andrew Weldon Redd

05/05/2000 Appearance Form Submitted: Ellen R. Leonard 05/05/2000 Appearance Form Submitted: Kim Tobias Thomas 05/09/2000 Filing Fee Paid: Appellant-Hope, Larry (Atty: Craig Thomas Jones)

Party Pending No

No

No

Andrew Weldon No Redd

Ellen R. Leonard

No

Kim Tobias Thomas

No

Larry Hope No

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

DIS-1 (Dismissal Notice) issued. cc: Redd, Andrew Weldon cc:

05/10/2000 Leonard, Ellen R. cc: Thomas, Kim Tobias To: Jones, Craig Thomas

No

cc: Mendelsohn, James

05/12/2000 Appearance Form Submitted: Craig Thomas Jones

Craig Thomas No Jones

05/12/2000

Civil Appeal Statement Thomas Jones)

Form:

Appellant-Hope,

Larry

(Atty:

Craig

Larry Hope No

06/02/2000 DC Order: Regarding appeal in prisoner civil rights case

No

06/05/2000 Record Excerpts: Appellant-Hope, Larry (Atty: Craig Thomas Jones) Larry Hope No

06/05/2000

Appellant's Jones)

Brief

Filed:

Appellant-Hope,

Larry

(Atty:

Craig

Thomas

Larry Hope No

07/11/2000

Appellee Thomas)

Brief

Filed:

Appellee-Pelzer,

Mark

(Atty:

Kim

Tobias

Mark Pelzer

No

07/14/2000 Certificate of Readiness

No

07/14/2000 Record on Appeal

No

10/26/2000 Supplemental Authority for Appellee: Appellee

No

10/26/2000

MINUTE ENTRY: Appellee to supplement "hitching" policy within 7 days. GBT

record

with

the

written

No

10/26/2000 Argument Scheduled for 10/26/00

No

10/30/2000

Craig Thomas Appellee

Jones

argued

for

Appellant;

Ellen

R.

Leonard

argued

for

No

10/30/2000 Notice of filing "hitching policy" as per OA request

No

02/02/2001 Opinion Issued

No

02/02/2001 Judgment Entered

No

OPIN1 (Opinion - Issuance) issued. cc: Jones, Craig Thomas cc: Redd,

02/02/2001 Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias cc:

No

Vining, Robert L., Jr. cc: Buttram, H. Dean, Jr.

02/22/2001

Petition for Rehearing Thomas Jones)

En

Banc:

Appellant-Hope,

Larry

(Atty:

Craig

Larry Hope No

The Petition(s) for Rehearing are DENIED and no member of this

05/07/2001

panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, the Petition(s)

No

for Rehearing En Banc are DENIED.

REHG1 (Rehearing - Transmittal) issued. cc: Jones, Craig Thomas cc:

05/07/2001 Redd, Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias

No

cc: Mendelsohn, James

05/16/2001 CASE CLOSED- Mandate Issued

No

05/16/2001 Mandate Issued

No

MDT1 (Mandate - Issuance) issued. cc: Jones, Craig Thomas cc: Redd,

05/16/2001 Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias To:

No

Mathis, Perry D.

05/21/2001 MDT1 (Mandate - Issuance) issued. To: Mathis, Perry D.

No

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

08/24/2001

Notice of Filing Certiorari USSC 01-309: Appellant Hope, Larry (Atty: Craig Thomas Jones)

Larry Hope

No

02/06/2002 Certiorari Granted ussc 01-309

No

SPCT1 (Supreme Court - Request DC) issued. cc: Jones, Craig Thomas

02/28/2002 cc: Redd, Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim

No

Tobias To: Mathis, Perry D. cc: Mendelsohn, James

SPCT2 (Supreme Court - Notice) issued. cc: Jones, Craig Thomas cc:

03/06/2002 Redd, Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias

No

cc: Mendelsohn, James To: Clerk,

SPCT3 (Supreme Court - Record) issued. cc: Jones, Craig Thomas cc:

03/06/2002 Redd, Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias

No

cc: Mendelsohn, James To: Clerk,

07/02/2002 WRAP-1 (Wrappers w/ addresses) issued. To: Vining, Robert L., Jr.

No

07/02/2002 Opinion of Supreme Court Dated 06/27/02

No

07/31/2002 Judgment of Supreme Court

No

09/13/2002 Judgment Entered

No

OPIN6 (Opinion - Remand) issued. cc: Jones, Craig Thomas cc: Redd,

09/13/2002 Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias To:

No

Perry D. Mathis cc: Acker, William M., Jr. cc: Vining, Robert L., Jr.

09/13/2002

Opinion on U.S. REMANDED.

Supreme

Court

Remand

Issued

REVERSED

&

No

09/24/2002 WRAP-1 (Wrappers w/ addresses) issued. cc: Vining, Robert L., Jr.

No

10/15/2002 CASE CLOSED-Mandate Issued

No

10/15/2002 Mandate Issued

No

MDT1 (Mandate - Issuance) issued. cc: Jones, Craig Thomas cc: Redd,

10/15/2002 Andrew Weldon cc: Leonard, Ellen R. cc: Thomas, Kim Tobias To:

No

Perry D. Mathis cc: Mendelsohn, James cc: Clerk, cc: Ott, John E.

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 240 F.3d 975 (2001)
Larry HOPE, Plaintiff-Appellant, v.
Mark PELZER, Gene McClaran, et al., Defendants-Appellees.
No. 00-12150
United States Court of Appeals, Eleventh Circuit.
DECIDED February 2, 2001
976 *976 Craig Thomas Jones, Craig T. Jones, PC, Atlanta, GA, for Plaintiff-Appellant.
Kim Tobias Thomas, Andrew Weldon Redd, Ellen R. Leonard, Alabama Dept. of Corrections, Montgomery, AL, for Defendants-Appellees.
Before TJOFLAT and BIRCH, Circuit Judges, and VINING[*], District Judge.
BIRCH, Circuit Judge:
In this case, we decide whether an inmate's Eighth and Fourteenth Amendment rights were violated when prison guards handcuffed him to a hitching post on two occasions, one of which lasted for seven hours without regular 977 water or bathroom *977 breaks. The district court granted summary judgment for the defendant prison guards because they were entitled to qualified immunity. We AFFIRM.
I. BACKGROUND
Plaintiff-Appellant Larry Hope was an inmate at Limestone Correctional Facility ("Limestone") in 1995, where he was assigned to the chain gang. On two occasions, Hope was transported from the chain gang work site back to Limestone, where he was cuffed to a hitching post in the yard.
On 11 May 1995, Hope was engaged in a verbal altercation with another inmate on the chain gang. Both men were escorted back to Limestone, where they were cuffed to the hitching post. Hope was released two hours later, after the guards captain determined that the altercation was caused by the other inmate. While on the post, Hope was offered water and a bathroom break every fifteen minutes, and his responses to these offers were recorded on an activity log. He was examined by a prison nurse that evening, and showed no signs of injury.
On 7 June 1995, Hope was engaged in a physical altercation at the work site with a prison guard. There is a dispute about who started the fight, but Hope states that one of the guards started choking him because he fell asleep on the bus en route to the work site, and therefore did not exit promptly with the other inmates. Hope was again brought back to Limestone, where he was again cuffed to the hitching post. This time, Hope was cuffed to the post for seven hours without a shirt. During this seven hour period, Hope was given water only once or twice, and was given no bathroom breaks.[1] He was examined by the prison nurse, who noted no injuries. Hope has since been released from prison.
Hope brought suit in federal court against eight Limestone guards,[2] alleging that his Eighth[3] Amendment rights had been violated, and seeking monetary damages. The district court ordered the defendants to submit special reports outlining their knowledge of the incidents Hope described in his complaint. The court considered these special reports as a motion to dismiss, and granted the motion on qualified immunity grounds. Hope appeals.

II. DISCUSSION
We review a summary judgment appeal de novo, and view all facts in the light most favorable to the non-moving party. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998).
A. Hope's Constitutional Rights Were Violated
Alabama Department of Corrections ("DOC") policy calls for inmates to be cuffed to a hitching post[4] to 978 "eliminate the possibility of disruption of the work squad and to discourage other inmates from exhibiting *978
similar conduct." R1-11-8.[5] Hope argues that his Eighth Amendment right to be free from cruel and unusual punishment was violated when he was cuffed to the hitching post on 11 May and 7 June 1995 in accordance with this policy. We agree.[6]
The Eighth Amendment prohibits "punishments which are incompatible with `the evolving standards of decency that mark the progress of a maturing society' ... or which `involve the unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (citations omitted). Because Hope was not placed on the hitching post as the result of a court sentence or sentencing statute, he must prove a subjective violation of his rights as well as the objective violation of the Eighth Amendment. See Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 2325, 115 L.Ed.2d 271 (1991).
1. The Subjective Requirement
The subjective component of Eighth Amendment jurisprudence requires a showing that the defendants were wanton in their actions, as opposed to merely negligent. Id. at 302, 111 S.Ct. at 2326. To overcome this subjective test, Hope must show that the officials knew that placing him on the hitching post created a "substantial risk of serious harm and [that they] disregard[ed] that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994).[7] The Court in Farmer emphasized that the officials need only be aware of the risk of harm, as opposed to being aware of actual harm. Id. at 842, 114 S.Ct. at 1981.
Hope has met the burden of showing that the prison officials were aware that placing him on the hitching post created a substantial risk of harm, and that they did nothing to abate that risk. First, "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. Hope was cuffed standing to a hitching post, with his arms at approximately head level, in the hot sun for seven hours with no shirt, metal cuffs, only one or two water breaks, and no bathroom breaks. At one time, prison guards brought a cooler of water near him, let the prison dogs drink from the water, and then kicked the cooler over at Hope's feet. This is uncontested evidence of deliberate indifference to the risk of harm to Hope.
Second, in 1994, the Department of Justice ("DOJ") conducted an examination of the Easterling Correctional 979 Facility in Alabama, and advised the DOC that use of the hitching post constituted improper corporal *979
punishment and was not an acceptable use of restraints. Austin, 15 F.Supp.2d at 1249.[8] In this report, the DOJ recommended that the DOC cease use of the hitching post in order to meet constitutional standards. The DOJ report listed the health and safety risks associated with the use of the hitching post. The DOC replied to the report, stating that it had determined that use of the hitching post "is not unconstitutional and is necessary to preserve prison security and discipline." Id. In response, the DOJ informed the DOC that, "[a]lthough an emergency situation may warrant drastic action by corrections staff, our experts found that the `rail' is being used systematically as an improper punishment for relatively trivial offenses. Therefore, we have concluded that the use of the `rail' is without penological justification." Id. at 1249-50. This exchange between the DOJ and the DOC demonstrates that the DOC was aware of the substantial risk of harm created by use of the hitching post for prolonged periods of time. We find that Hope has satisfied the subjective requirement of the Eighth Amendment test.

2. The Objective Requirement
The standard for an objective violation of the Eighth Amendment is whether a punishment "`involve[s] the unnecessary and wanton infliction of pain' ... or [is] grossly disproportionate to the severity of the crime." Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citations omitted). Because there is no clear test for what actions meet this standard, "the Eighth Amendment `must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" Id. (citations omitted). This standard of decency must be balanced, of course, against the prison officials' need to keep the prison safe. However, an infliction of pain "without penological justification" is considered to be "unnecessary and wanton." Id. (citations omitted).
Since abolishing the pillory over a century ago, our system of justice has consistently moved away from forms of punishment similar to hitching posts in prisons. In Gates v. Collier, 501 F.2d 1291 (5th Cir.1974), in regard to "handcuffing inmates to the fence and to cells for long periods of time" and other such punishments, we stated that "[w]e have no difficulty in reaching the conclusion that these forms of corporal punishment run afoul of the Eighth Amendment, offend contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess." Gates, 501 F.2d at 1306.
Hope has met the objective standard of the Eighth Amendment. While on the hitching post in June, Hope was denied basic human necessities, such as water, and was even taunted by the guards in the process. While cuffed to the hitching post, Hope ran the obvious risk of becoming dehydrated or sunburned, injuring his wrists, or being ridiculed and harassed by other inmates on their way back from the work site, among other injuries.[9] The policy and practice of cuffing an inmate to a hitching post past the time when he constitutes a threat to himself or others violates the "broad and idealistic concepts of dignity, civilized standards, humanity and decency," Estelle, 429 U.S. at 102, 97 S.Ct. at 290 (quotation omitted), embodied in the Eighth Amendment.
980 *980 3. The Policy and Practice are Unconstitutional
We find that cuffing an inmate to a hitching post for a period of time extending past that required to address an immediate danger or threat is a violation of the Eighth Amendment. This violation is exacerbated by the lack of proper clothing, water, or bathroom breaks. We do not address the situation where this punishment or one similar to it is applied to an inmate for a short period of time after a physical altercation or other serious threat to prison safety to quell a disturbance and protect the safety of those around him. It is possible that there could be situations where an inmate would need to be temporarily cuffed to a stationary object for non-punitive purpose while the guards restored order. This is not that situation.
Our finding today is consistent with our ruling in Ort v. White, 813 F.2d 318 (11th Cir.1987), where a prison official refused to allow inmate Ort to drink water while on the chain gang until Ort agreed to work. In Ort, we found the official's action to be constitutional, in part because Ort "essentially had the keys to the water keg in his own pocket. Whenever he agreed to abide by the prison rules, he would be given water just like everyone else." Id. at 326. While the DOC claims that Hope would have been released from the hitching post had he asked to return to work, the evidence suggests this is not the case. First, Hope never refused to work. During the May incident, he was the victim in an altercation on the work site, but he never refused to do his job. During the June incident, Hope was involved in an altercation with prison guards. There is nothing in the record, however, claiming that he refused to work or encouraged other inmates to refuse to work. Therefore, it is not clear that the solution to his hitching post problem was to ask to return to work. Second, Hope was placed in a car and driven back to Limestone to be cuffed to the hitching post on both occasions. Given the facts, it is 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. It is more likely that the guards left Hope on the post until his work detail returned to teach the other inmates a lesson.
Herein lies the crux of our finding that the guards' placing Hope on the hitching post for extended periods of time was unconstitutional: there is no evidence in the record that Hope posed a continuing threat to prison safety while

being transported from the work site to the prison or once he arrived at the prison itself. There is no evidence that Hope would have been a continuing threat had he remained at the work site. In Williams v. Burton, 943 F.2d 1572 (11th Cir.1991) (per curiam), we found that the prison officials did not violate the Eighth Amendment by using four-point restraints to control an inmate who "was trying to incite other inmates to join him in a prison disturbance ... [that] posed a significant security concern." Williams, 943 F.2d at 1575. We stated, however, that,
once restraints are initially justified, it becomes somewhat problematic as to how long they are necessary to meet the particular exigent circumstances which precipitated their use. The basic legal principle is that once the necessity for the application of force ceases, any continued use of harmful force can be a violation of the Eighth and Fourteenth Amendments, and any abuse directed at the prisoner after he terminates his resistance to authority is an Eighth Amendment violation. Id. at 1575-76.
This rule was also applied earlier in Ort, where we acknowledged that, "we might have reached a different decision if later, once back at the prison, officials had decided to deny appellant water as punishment for his refusal to work." Ort, 813 F.2d at 326.
For the above-stated reasons, we find that the policy and practice of cuffing an inmate to a hitching post or similar 981 stationary object for a period of time that *981 surpasses that necessary to quell a threat or restore order is a
violation of the Eighth Amendment. It is our intention that this holding serve as a bright-line rule for any future case involving the use of a hitching post by prison authorities. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("[I]f the policy of avoidance [of constitutional issues] were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment of both officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or nonconstitutional.").
B. The Guards Are Entitled to Qualified Immunity
Despite the unconstitutionality of the prison practice and, therefore, the guards' actions, there was no clear, bright-line test established in 1995 that would survive our circuit's qualified immunity analysis. Therefore, we affirm the district court's grant of summary judgment for the defendants on qualified immunity grounds.
Public officials are entitled to qualified immunity from monetary damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The qualified immunity test is "one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith." Swint v. City of Wadley, Ala., 51 F.3d 988, 995 (11th Cir. 1995).
The law on qualified immunity in our circuit is clear. When analyzing a qualified immunity defense, "[w]e look to whether a reasonable official could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." Id. (citations omitted). Thus, "to be `clearly established,' the federal law by which the government official's conduct should be evaluated must be preexisting, obvious and mandatory so that a similarly situated, reasonable government agent would be on notice that his or her questioned conduct violates federal law under the circumstances." Hill v. Dekalb Regional Youth Det. Ctr., 40 F.3d 1176, 1185 (11th Cir. 1994).
Hope argues that several of our cases, including Gates and Ort, established a bright-line rule against use of the hitching post. While we recognize that the inappropriateness of the hitching post could be inferred from these opinions, a bright-line rule for qualified immunity purposes "is not to be found in abstractions to 0907 act reasonably, to act with probable cause, and so forth0907but in studying how these abstractions have been applied in concrete circumstances." Lassiter v. Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (citations omitted). It is important to analyze the facts in these cases, and determine if they are "materially similar" to the facts in the case in front of us. Suissa v. Fulton County, Ga., 74 F.3d 266, 269-70 (11th Cir.1996) (per curiam) (citations omitted). Though analogous, the facts in Gates and Ort are not "materially similar" to Hope's situation.

In Ort, the defendant was refused water while at a work site, until he agreed to do his job of carrying water to the work site. Ort, 813 F.2d at 326. Gates was an even more distinct case, as it involved an effort to make substantial changes based on the unconstitutional "conditions and practices in the maintenance, operation and administration" of a prison. Gates, 501 F.2d at 1295. We do not find that the language in Gates, Ort, or any other Eleventh Circuit or Supreme Court opinion established that impermissible use of the hitching post constitutes 982 cruel and unusual punishment clearly enough that "a reasonable official *982 would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
III. CONCLUSION
The practice of leaving an inmate cuffed to a hitching post when he no longer presents a threat to himself or those around him is a violation of that prisoner's Eighth Amendment right to be protected from cruel and unusual punishment, particularly when he is denied water and bathroom breaks. In 1995, however, there was no case law in this circuit with facts and legal analysis clear enough to serve as a bright-line rule establishing this violation, so the prison guards cannot be held financially responsible for their actions. Accordingly, we AFFIRM the judgment of the district court.
[*] Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation.
[1] We note that there is no activity log for this period that Hope spent on the hitching post, despite the policy that requires such a report. Because there is no report, Hope's allegations about the lack of water and bathroom breaks are uncontested.
[2] Hope subsequently moved to dismiss his claims against defendants Ted Loggins, Greg Jackson, Gary McGee, Joseph Stephenson, and James Kent, leaving only Mark Pelzer, Gene McClaran and Jim/ Keith Gates. In the same motion, he dropped a claim for excessive force.
[3] Hope argues that he also brought a Fourteenth Amendment due process claim. However, the district court found that the due process complaint was not signed and had no evidence of service of process. Therefore, it did not address this claim, and it is not before us now.
[4] The DOC refers to the hitching post as a "restraining bar" or a "rail." Here, we will use the term "hitching post," but the holding applies to any similar object that inmates are cuffed to in the manner described in this opinion.
[5] The written policy, Alabama Administrative Regulation Number 429, is not in the district court record, and, therefore, we will not address it here.
[6] This section of the opinion will discuss Eighth Amendment jurisprudence as it applies to Hope's case. For an analysis of the historical background of an Eighth Amendment claim against the use of a hitching post, see Austin v. Hopper, 15 F.Supp.2d 1210, 1250-66 (M.D.Ala.1998). Because Hope is a member of the plaintiff class in Austin, that court discusses his allegations in its opinion. The case before us is a separate action, in that Hope is asking for monetary damages rather than injunctive relief, but the Austin court's analysis is sound and directly applicable to our case.
[7] We disagree with the district court in Austin in so far as the opinion applies the heightened subjective test found in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), to the subjective element of Hope's claim. Austin, 15 F.Supp.2d at 1255. The Whitley test applies when officials act "in haste, under pressure, and frequently without the luxury of a second chance." Whitley, 475 U.S. at 320, 106 S.Ct. at 1084. Because the officers drove Hope back to Limestone before placing him on the hitching post, they no longer faced the type of exigent circumstances required to invoke the Whitley standard. We note, however, that despite applying the more stringent Whitley standard to Hope's case, the district court in Austin still found that Hope had met the subjective component of the Eighth Amendment analysis. Austin, 15 F.Supp.2d at 1265.

[8] Although this DOJ report was not before the district court in Hope's case, we are taking judicial notice of the report as permitted by Federal Rule of Evidence 201. See United States v. Rey, 811 F.2d 1453, 1457 n. 5 (11th Cir.1987) ("A court may take judicial notice of its own records and the records of inferior courts."); National Fire Ins. Co. of Hartford v. Thompson, 281 U.S. 331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881 (1930) ("We may notice the record of that case in this court.").
[9] In the words of the district court in Austin, "inmates placed upon the hitching post suffered extreme pain, anguish, humiliation, mental suffering, and resulting physical soreness and depression." Austin, 15 F.Supp.2d at 1256.
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 536 U.S. 730 (2002)
HOPE v.
PELZER et al.
No. 01-309.
United States Supreme Court.
Argued April 17, 2002. Decided June 27, 2002. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
731*731 732*732 Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 748.
Craig T. Jones argued the cause for petitioner. With him on the brief were James Mendelsohn, J. Richard Cohen, and Rhonda Brownstein.
Austin C. Schlick argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorneys General McCallum and Boyd, Deputy Solicitor General Clement, Barbara L. Herwig, and Richard A. Olderman.
Nathan A. Forrester, Solicitor General of Alabama, argued the cause for respondents. With him on the brief were Bill Pryor, Attorney General, Alyce S. Robertson, Deputy Solicitor General, and Margaret Fleming and Ellen LeonardThomas, Assistant Attorneys General.
Gene C. Schaerr argued the cause for the State of Missouri et al. as amici curiae urging affirmance. With him on the brief were Jeremiah W. Nixon, Attorney General of Missouri, and James R. Layton, State Solicitor, Robert H. Kono, Acting Attorney General of Guam, and Carter G. Phillips, joined by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Earl I. Anzai of Hawaii, Steve Carter of Indiana, Richard P. Ieyoub of Louisiana, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Mi733*733 chael Fisher of Pennsylvania, Sheldon White house of Rhode Island, Mark L. Shurtleff of Utah, and Darrell V. McGraw, Jr., of West Virginia.[*]
Justice Stevens, delivered the opinion of the Court.
The Court of Appeals for the Eleventh Circuit concluded that petitioner Larry Hope, a former prison inmate at the Limestone Prison in Alabama, was subjected to cruel and unusual punishment when prison guards twice handcuffed him to a hitching post to sanction him for disruptive conduct. Because that conclusion was not supported by earlier cases with "materially similar" facts, the court held that the respondents were entitled to qualified immunity, and therefore affirmed summary judgment in their favor. We granted certiorari to

determine whether the Court of Appeals' qualified immunity holding comports with our decision in United States v. Lanier, 520 U. S. 259 (1997).
I
In 1995, Alabama was the only State that followed the practice of chaining inmates to one another in work squads. It was also the only State that handcuffed prisoners to "hitching posts" if they either refused to work or otherwise disrupted work squads.[1] Hope was handcuffed to a hitching 734*734 post on two occasions. On May 11, 1995, while Hope was working in a chain gang near an interstate highway, he got into an argument with another inmate. Both men were taken back to the Limestone prison and handcuffed to a hitching post. Hope was released two hours later, after the guard captain determined that the altercation had been caused by the other inmate. During his two hours on the post, Hope was offered drinking water and a bathroom break every 15 minutes, and his responses to these offers were recorded on an activity log. Because he was only slightly taller than the hitching post, his arms were above shoulder height and grew tired from being handcuffed so high. Whenever he tried moving his arms to improve his circulation, the handcuffs cut into his wrists, causing pain and discomfort.
On June 7, 1995, Hope was punished more severely. He took a nap during the morning bus ride to the chaingang's worksite, and when it arrived he was less than prompt in responding to an order to get off the bus. An exchange of vulgar remarks led to a wrestling match with a guard. Four other guards intervened, subdued Hope, handcuffed him, placed him in leg irons and transported him back to the prison where he was put on the hitching post. The guards made him take off his shirt, and he remained shirtless all 735*735 day while the sun burned his skin.[2] He remained attached to the post for approximately seven hours. During this 7hour period, he was given water only once or twice and was given no bathroom breaks.[3] At one point, a guard taunted Hope about his thirst. According to Hope's affidavit: "[The guard] first gave water to some dogs, then brought the water cooler closer to me, removed its lid, and kicked the cooler over, spilling the water onto the ground." App. 11.
Hope filed suit under Rev. Stat. § 1979, 42 U. S. C. § 1983, in the United States District Court for the Northern District of Alabama against three guards involved in the May incident, one of whom also handcuffed him to the hitching post in June. The case was referred to a Magistrate Judge who treated the responsive affidavits filed by the defendants as a motion for summary judgment. Without deciding whether "the very act of placing him on a restraining bar for a period of hours as a form of punishment" had violated the Eighth Amendment, the Magistrate concluded that the guards were entitled to qualified immunity.[4] Supplemental App. to Pet. for Cert. 21. The District Court agreed, and entered judgment for respondents.
The United States Court of Appeals for the Eleventh Circuit affirmed. 240 F. 3d 975 (2001). Before reaching the 736*736 qualified immunity issue, however, it answered the constitutional question that the District Court had bypassed. The court found that the use of the hitching post for punitive purposes violated the Eighth Amendment. Nevertheless, applying Circuit precedent concerning qualified immunity, the court stated that "`the federal law by which the government official's conduct should be evaluated must be preexisting, obvious and mandatory,' " and established, not by "`abstractions,' " but by cases that are

"`materially similar' " to the facts in the case in front of us." Id., at 981. The court then concluded that the facts in the two precedents on which Hope primarily relied—Ort v. White, 813 F. 2d 318 (CA11 1987), and Gates v. Collier, 501 F. 2d 1291 (CA5 1974)—"[t]hough analogous," were not "`materially similar' to Hope's situation.' " 240 F. 3d, at 981. We granted certiorari to review the Eleventh Circuit's qualified immunity holding. 534 U. S. 1073 (2002).
II
The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U. S. 194, 201 (2001). The Court of Appeals held that "the policy and practice of cuffing an inmate to a hitching post or similar stationary object for a period of time that surpasses that necessary to quell a threat or restore order is a violation of the Eighth Amendment." 240 F. 3d, at 980— 981. The court rejected respondents' submission that Hope could have ended his shackling by offering to return to work, finding instead that the purpose of the practice was punitive,[5] and that the circumstances of his confinement created 737*737 a substantial risk of harm of which the officers were aware. Moreover, the court relied on Circuit precedent condemning similar practices[6] and the results of a United States Department of Justice (DOJ) report that found Alabama's systematic use of the hitching post to be improper corporal punishment. [7] We agree with the Court of Appeals that the attachment of Hope to the hitching post under the circumstances alleged in this case violated the Eighth Amendment.
"`[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.' " Whitley v. Albers, 475 U. S. 312, 319 (1986) (some internal quotation marks omitted). We have said that "[a]mong `unnecessary and wanton' inflictions of pain are those that are `totally without penological justification.' " Rhodes v. Chapman, 452 U. S. 337, 346 (1981). In making this determination in the context of prison conditions, 738*738 we must ascertain whether the officials involved acted with "deliberate indifference" to the inmates' health or safety. Hudson v. McMillian, 503 U. S. 1, 8 (1992). We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious. Farmer v. Brennan, 511 U. S. 825, 842 (1994).
As the facts are alleged by Hope, the Eighth Amendment violation is obvious. Any safety concerns had long since abated by the time petitioner was handcuffed to the hitching post because Hope had already been subdued, handcuffed, placed in leg irons, and transported back to the prison. He was separated from his work squad and not given the opportunity to return to work. Despite the clear lack of an emergency situation, the respondents knowingly subjected him to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation.[8] The use of the hitching post under these circumstances violated the "basic concept underlying the Eighth Amendment[, which] is nothing less than the dignity of man." Trop v. Dulles, 356 U. S. 86, 100 (1958). This punitive treatment amounts to gratuitous infliction of "wanton and unnecessary" pain that our precedent clearly prohibits.

739*739 III
Despite their participation in this constitutionally impermissible conduct, respondents may nevertheless be shielded from liability for civil damages if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). In assessing whether the Eighth Amendment violation here met the Harlow test, the Court of Appeals required that the facts of previous cases be "`materially similar' to Hope's situation." 240 F. 3d, at 981. This rigid gloss on the qualified immunity standard, though supported by Circuit precedent,[9] is not consistent with our cases.
As we have explained, qualified immunity operates "to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, 533 U. S., at 206. For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U. S. 511,] 535, n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U. S. 635, 640 (1987).
Officers sued in a civil action for damages under 42 U. S. C. § 1983 have the same right to fair notice as do defendants charged with the criminal offense defined in 18 U. S. C. § 242. Section 242 makes it a crime for a state official to act "willfully" and under color of law to deprive a person of rights protected by the Constitution. In United States v. Lanier, 520 U. S. 259 (1997), we held that the defendant was entitled 740*740 to "fair warning" that his conduct deprived his victim of a constitutional right, and that the standard for determining the adequacy of that warning was the same as the standard for determining whether a constitutional right was "clearly established" in civil litigation under § 1983.[10]
In Lanier, the Court of Appeals had held that the indictment did not charge an offense under § 242 because the constitutional right allegedly violated had not been identified in any earlier case involving a factual situation "`fundamentally similar' " to the one in issue. Id., at 263 (citing United States v. Lanier, 73 F. 3d 1380, 1393 (CA6 1996)). The Court of Appeals had assumed that the defendant in a criminal case was entitled to a degree of notice "`substantially higher than the "clearly established" standard used to judge qualified immunity' " in civil cases under § 1983. 520 U. S., at 263. We reversed, explaining that the "fair warning" requirement is identical under § 242 and the qualified immunity standard. We pointed out that we had "upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Id., at 269. We explained:
"This is not to say, of course, that the single warning standard points to a single level of specificity sufficient in every instance. In some circumstances, as when an 741*741 earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of prior factual particularity may be necessary. But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question, even though `the very action in question has [not] previously been held unlawful,' Anderson, supra, at 640." Id., at 270-271 (citation omitted).
Our opinion in Lanier thus makes clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases be "fundamentally similar." Although earlier cases involving "fundamentally similar" facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with "materially similar" facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional. It is to this question that we now turn.
IV
The use of the hitching post as alleged by Hope "unnecessar[ily] and wanton[ly] inflicted pain," Whitley, 475 U. S., at 319 (internal quotation marks omitted), and thus was a clear violation of the Eighth Amendment. See Part II, supra. Arguably, the violation was so obvious that our own Eighth Amendment cases gave respondents fair warning that their conduct violated the Constitution. Regardless, in light of binding Eleventh Circuit precedent, an Alabama Department of Corrections (ADOC) regulation, and a DOJ report 742*742 informing the ADOC of the constitutional infirmity in its use of the hitching post, we readily conclude that the respondents' conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U. S., at 818.
Cases decided by the Court of Appeals for the Fifth Circuit before 1981 are binding precedent in the Eleventh Circuit today. See Bonner v. Prichard, 661 F. 2d 1206 (CA11 1981). In one of those cases, decided in 1974, the Court of Appeals reviewed a District Court decision finding a number of constitutional violations in the administration of Mississippi's prisons. Gates v. Collier, 501 F. 2d 1291. That opinion squarely held that several of those "forms of corporal punishment run afoul of the Eighth Amendment [and] offend contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess." Id., at 1306. Among those forms of punishment were "handcuffing inmates to the fence and to cells for long periods of time, . . . and forcing inmates to stand, sit or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods." Ibid. The fact that Gates found several forms of punishment impermissible does not, as respondents suggest, lessen the force of its holding with respect to handcuffing inmates to cells or fences for long periods of time. Nor, for the purpose of providing fair notice to reasonable officers administering punishment for past misconduct, is there any reason to draw a constitutional distinction between a practice of handcuffing an inmate to a fence for prolonged periods and handcuffing him to a hitching post for seven hours. The Court of Appeals' conclusion to the contrary exposes the danger of a rigid, over reliance on factual similarity. As the Government submits in its brief amicus curiae: "No reasonable officer could have concluded that the constitutional holding of Gates turned on the fact that inmates were handcuffed to fences or the bars of cells, rather than a specially designed metal bar designated for shackling. If anything, the use of 743*743 a designated hitching

post highlights the constitutional problem." Brief for United States as Amicus Curiae 22. In light of Gates, the unlawfulness of the alleged conduct should have been apparent to respondents.
The reasoning, though not the holding, in a case decided by the Eleventh Circuit in 1987 sent the same message to reasonable officers in that Circuit. In Ort v. White, 813 F. 2d 318, the Court of Appeals held that an officer's temporary denials of drinking water to an inmate who repeatedly refused to do his share of the work assigned to a farm squad "should not be viewed as punishment in the strict sense, but instead as necessary coercive measures undertaken to obtain compliance with a reasonable prison rule, i. e., the requirement that all inmates perform their assigned farm squad duties." Id., at 325. "The officer's clear motive was to encourage Ort to comply with the rules and to do the work required of him, after which he would receive the water like everyone else." Ibid. The court cautioned, however, that a constitutional violation might have been present "if later, once back at the prison, officials had decided to deny [Ort] water as punishment for his refusal to work." Id., at 326. So too would a violation have occurred if the method of coercion reached a point of severity such that the recalcitrant prisoner's health was at risk. Ibid. Although the facts of the case are not identical, Ort' s premise is that "physical abuse directed at [a] prisoner after he terminate[s] his resistance to authority would constitute an actionable eighth amendment violation." Id., at 324. This premise has clear applicability in this case. Hope was not restrained at the worksite until he was willing to return to work. Rather, he was removed back to the prison and placed under conditions that threatened his health. Ort therefore gave fair warning to respondents that their conduct crossed the line of what is constitutionally permissible.
Relevant to the question whether Ort provided fair warning to respondents that their conduct violated the Constitution 744*744 is a regulation promulgated by ADOC in 1993.[11] The regulation authorizes the use of the hitching post when an inmate refuses to work or is otherwise disruptive to a work squad. It provides that an activity log should be completed for each such inmate, detailing his responses to offers of water and bathroom breaks every 15 minutes. Such a log was completed and maintained for petitioner's shackling in May, but the record contains no such log for the 7-hour shackling in June and the record indicates that the periodic offers contemplated by the regulation were not made. App. 43-48. The regulation also states that an inmate "will be allowed to join his assigned squad" whenever he tells an officer "that he is ready to go to work." Id., at 103. The findings in Austin v. Hopper, 15 F. Supp. 2d 1210, 1244-1246 (MD Ala. 1998), as well as the record in this case, indicate that this important provision of the regulation was frequently ignored by corrections officers. If regularly observed, a requirement that would effectively give the inmate the keys to the handcuffs that attached him to the hitching post would have made this case more analogous to the practice upheld in Ort, rather than the kind of punishment Ort described as impermissible. A course of conduct that tends to prove that the requirement was merely a sham, or that respondents could ignore it with impunity, provides equally strong support for the conclusion that they were fully aware of the wrongful character of their conduct.
Respondents violated clearly established law. Our conclusion that "a reasonable person would have known," Harlow, 457 U. S., at 818, of the violation is buttressed by the fact that the DOJ specifically advised the ADOC of the unconstitutionality of its practices before the incidents in this case took place. The DOJ had conducted a study in 1994 of Alabama's use

of the hitching post. 240 F. 3d, at 979. 745*745 Among other findings, the DOJ report noted that ADOC's officers consistently failed to comply with the policy of immediately releasing any inmate from the hitching post who agrees to return to work. The DOJ concluded that the systematic use of the restraining bar in Alabama constituted improper corporal punishment. Ibid. Accordingly, the DOJ advised the ADOC to cease use of the hitching post in order to meet constitutional standards. The ADOC replied that it thought the post could permissibly be used "`to preserve prison security and discipline.' " Ibid. In response, the DOJ informed the ADOC that, "`[a]lthough an emergency situation may warrant drastic action by corrections staff, our experts found that the "rail" is being used systematically as an improper punishment for relatively trivial offenses. Therefore, we have concluded that the use of the "rail" is without penological justification.' " Ibid. Although there is nothing in the record indicating that the DOJ's views were communicated to respondents, this exchange lends support to the view that reasonable officials in the ADOC should have realized that the use of the hitching post under the circumstances alleged by Hope violated the Eighth Amendment prohibition against cruel and unusual punishment.
The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope's constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity—he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous. This wanton treatment was not done of necessity, but as punishment for prior conduct. Even if there might once have been a question regarding the constitutionality of this practice, the Eleventh Circuit precedent of Gates and Ort, as well as the DOJ report condemning the practice, put a reasonable officer on notice that the use of the hitching 746*746 post under the circumstances alleged by Hope was unlawful. The "fair and clear warning," Lanier, 520 U. S., at 271, that these cases provided was sufficient to preclude the defense of qualified immunity at the summary judgment stage.
V
In response to Justice Thomas' thoughtful dissent, we make the following three observations. The first is that in granting certiorari to review the summary judgment entered in favor of the officers, we did not take any question about the sufficiency of pleadings and affidavits to raise a genuine possibility that the three named officers were responsible for the punitive acts of shackling alleged. All questions raised by petitioner (the plaintiff against whom summary judgment was entered) go to the application of the standard that no immunity is available for official acts when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U. S., at 202. The officers' brief in opposition to certiorari likewise addressed only the legal standard of what is clearly established. The resulting focus in the case was the Eleventh Circuit's position that a violation is not clearly established unless it is the subject of a prior case of liability on facts "`materially similar' " to those charged. 240 F. 3d, at 981. We did not take, and do not pass upon, the questions whether or to what extent the three named officers may be held responsible for the acts charged, if proved. Nothing in our decision forecloses any defense other than qualified immunity on the ground relied upon by the Court of Appeals.

Second, we may address the immunity question on the assumption that the act of field discipline charged on each occasion was handcuffing Hope to a hitching post for an extended period apparently to inflict gratuitous pain or discomfort, with no justification in threatened harm or a continuing refusal to work. Id., at 980 (on neither occasion did Hope "refus[e] to work or encourag[e] other inmates to refuse to 747*747 work"). The Court of Appeals clearly held the act of cuffing petitioner to the hitching post itself to suffice as an unconstitutional act: "We find that cuffing an inmate to a hitching post for a period of time extending past that required to address an immediate danger or threat is a violation of the Eighth Amendment." Ibid. Although the court continued that "[t]his violation is exacerbated by the lack of proper clothing, water, or bathroom breaks," ibid., this embellishment was not the basis of its decision, and our own decision adequately rests on the same assumption that sufficed for the Court of Appeals.
Third, in applying the objective immunity test of what a reasonable officer would understand, the significance of federal judicial precedent is a function in part of the Judiciary's structure. The unreported District Court opinions cited by the officers are distinguishable on their own terms.[12] But regardless, they would be no match for the Circuit precedents[13] in Gates v. Collier, 501 F. 2d, at 1306, which held that "handcuffing inmates to the fence and to cells for long periods of time" was unconstitutional, and Ort v. White, 813 F. 2d, at 326, which suggested that it would be unconstitutional to inflict gratuitous pain on an inmate (by refusing him water) when punishment was unnecessary to enforce 748*748 on-the-spot discipline. The vitality of Gates and Ort could not seriously be questioned in light of our own decisions holding that gratuitous infliction of punishment is unconstitutional, even in the prison context, see supra, at 737 (citing Whitley v. Albers, 475 U. S., at 319; Rhodes v. Chapman, 452 U. S., at 346).
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.
The Court today subjects three prison guards to suit based on facts not alleged, law not clearly established, and its own subjective views on appropriate methods of prison discipline. Qualified immunity jurisprudence has been turned on its head.
I
Petitioner Larry Hope did not file this action against the State of Alabama. Nor did he sue all of the Alabama prison guards responsible for looking after him in the two instances that he was handcuffed to the restraining bar.[1] He chose instead to maintain this lawsuit against only three prison guards: Officer Gene McClaran, Sergeant Mark Pelzer, and Lieutenant Jim Gates. See 240 F. 3d 975, 977, n. 2 (CA11 2001).[2] It is therefore strange that in the course of deciding that none of the three respondents is entitled to qualified 749*749 immunity the Court does not even bother to mention the nature of petitioner's specific allegations against McClaran, Pelzer, and Gates. The omission is both glaring and telling. When one examines the alleged conduct of the prison guards who are parties to this action,

as opposed to the alleged conduct of other guards, who are not parties to this action, petitioner's case becomes far less compelling.
The Court's imprecise account of the facts requires that the specific nature of petitioner's allegations against the three respondents be recounted. Petitioner claims that: (1) on May 11, 1995, Officer McClaran ordered that petitioner be affixed to the restraining bar;[3] (2) Sergeant Pelzer, on that same date, affixed him to the restraining bar;[4] and (3) Lieutenant Gates, on May 11 and June 7, 1995, affixed petitioner to the bar.[5] That is the sum and substance of petitioner's allegations against respondents.[6]
With respect to McClaran and Pelzer, petitioner has never alleged that they participated in the June 7 incident that so 750*750 appalls the Court.[7] And with respect to Lieutenant Gates, petitioner has never alleged that Gates either participated in or was responsible for any of the June 7 events recounted by the Court other than attaching petitioner to the bar. Petitioner has never contended that Gates looked after or otherwise supervised him while he was on the bar. See Second Affidavit of Larry Hope (ND Ala.), Record, Doc. No. 32. Nor has petitioner ever claimed that Gates was responsible for keeping him on the bar for seven hours, removing his shirt,[8] denying him water, taunting him about his thirst, or giving water to dogs in petitioner's plain view. See ibid. The relevance of these facts, repeatedly referenced by the Court during the course of its legal analysis, see, e. g., ante, at 738, 744, therefore escapes me.
Then there are the events referenced in the Court's opinion that cannot even arguably be gleaned from the record. For instance, while the Court claims that on June 7 petitioner "was given no bathroom breaks," ante, at 735, during his time on the bar, petitioner has never alleged that Gates or any other prison guard refused him bathroom breaks on that date. See Second Affidavit of Larry Hope, Record, Doc. No. 32. As a matter of fact, the District Court expressly found below that petitioner "was not denied restroom 751*751 breaks." Supplemental App. to Pet. for Cert. 2. In addition, photographs taken of petitioner attached to the restraining bar on June 7 show him wearing a t-shirt, revealing at a minimum that petitioner was not shirtless "all day." See Second Affidavit of Larry Hope, Exhs. 3-5, Record, Doc. No. 32; id., at 5 (verifying that the photographs were "taken while [he] was on the hitching post on June 7").
Once one understands petitioner's specific allegations against respondents, the Eighth Amendment violation in this case is far from "obvious." Ante, at 738. What is "obvious," however, is that the Court's explanation of how respondents violated the Eighth Amendment is woefully incomplete. The Court merely recounts petitioner's allegations regarding the events of June 7 and concludes that "[t]he use of the hitching post under these circumstances violated the `basic concept underlying the Eighth Amendment[,] [which] is nothing less than the dignity of man.' " Ibid. (quoting Trop v. Dulles, 356 U. S. 86, 100 (1958)). The Court, however, fails to explain how respondents McClaran and Pelzer violated the Eighth Amendment, given that they had no involvement whatsoever in affixing petitioner to the restraining bar on June 7. The Court's reasoning as applied to respondent Gates is similarly inadequate since petitioner has never alleged that Gates bore any responsibility for most of the conduct on June 7 that supposedly renders the Eighth Amendment violation "obvious."[9]

752*752 II
Once petitioner's allegations regarding respondents' conduct are separated from his other grievances and the mistreatment invented by the Court, this case presents one simple question: Was it clearly established in 1995 that the mere act of cuffing petitioner to the restraining bar (or, in the case of Officer McClaran, ordering petitioner's attachment to the restraining bar) violated the Eighth Amendment? The answer to this question is also simple: Obviously not.
A
The Court correctly states that respondents are entitled to qualified immunity unless their conduct violated "`clearly established statutory or constitutional rights of which a reasonable person would have known.' " Ante, at 739 (quoting Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). But the Court then fails either to discuss or to apply the following important principles. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U. S. 335, 341 (1986). If "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted," then qualified immunity does not apply. Saucier v. Katz, 533 U. S. 194, 202 (2001). But if, on the other hand, "officers of reasonable competence could disagree on th[e] issue, immunity should be recognized." Malley, supra, at 341.
In evaluating whether it was clearly established in 1995 that respondents' conduct violated the Eighth Amendment, the Court of Appeals properly noted that "[i]t is important to analyze the facts in [the prior cases relied upon by petitioner where courts found Eighth Amendment violations], 753*753 and determine if they are materially similar to the facts in the case in front of us." 240 F. 3d, at 981 (internal quotation marks omitted). The right not to suffer from "cruel and unusual punishments," U. S. Const., Amdt. 8, is an extremely abstract and general right. In the vast majority of cases, the text of the Eighth Amendment does not, in and of itself, give a government official sufficient notice of the clearly established Eighth Amendment law applicable to a particular situation.[10] Rather, one must look to case law to see whether "the right the official is alleged to have violated [has] been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U. S. 635, 640 (1987).
In conducting this inquiry, it is crucial to look at precedent applying the relevant legal rule in similar factual circumstances. Such cases give government officials the best indication of what conduct is unlawful in a given situation. If, for instance, "various courts have agreed that certain conduct [constitutes an Eighth Amendment violation] under facts not distinguishable in a fair way from the facts presented in the case at hand," Saucier, supra, at 202, then a plaintiff would have a compelling argument that a defendant is not entitled to qualified immunity.
That is not to say, of course, that conduct can be "clearly established" as unlawful only if a court has already passed on the legality of that behavior under materially similar circumstances. Certain actions so obviously run afoul of the law that an assertion of

qualified immunity may be overcome even though court decisions have yet to address "materially similar" conduct. Or, as the Court puts it, "officials can still 754*754 be on notice that their conduct violates established law even in novel factual circumstances." Ante, at 741.
Although the Court argues that the Court of Appeals has improperly imposed a "rigid gloss on the qualified immunity standard," ante, at 739, and n. 9, requiring that the facts of a previous case be materially similar to a plaintiff's circumstances for qualified immunity to be overcome, this suggestion is plainly wrong. Rather, this Court of Appeals has repeatedly made clear that it imposes no such requirement on plaintiffs seeking to defeat an assertion of qualified immunity. See, e. g., Priester v. Riviera Beach, 208 F. 3d 919, 926 (CA11 2000) (stating that qualified immunity does not apply if an official's conduct "was so far beyond the hazy border between excessive and acceptable force that [the official] had to know he was violating the Constitution even without caselaw on point" (internal quotation marks omitted)); Smith v. Mattox, 127 F. 3d 1416, 1419 (CA11 1997) (noting that a plaintiff can overcome an assertion of qualified immunity by demonstrating "that the official's conduct lies so obviously at the very core of what the [Constitution] prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of caselaw"); Lassiter v. Alabama A&M Univ., 28 F. 3d 1146, 1150, n. 4 (CA11 1994) ("[O]ccasionally the words of a federal statute or federal constitutional provision will be specific enough to establish the law applicable to particular circumstances clearly and to overcome qualified immunity even in the absence of case law").
Similarly, it is unfair to read the Court of Appeals' decision as adopting such a "rigid gloss" here. Nowhere did the Court of Appeals state that petitioner, in order to overcome respondents' assertion of qualified immunity, was required to produce precedent addressing "materially similar" facts. Rather, the Court of Appeals merely (and sensibly) evaluated the cases relied upon by petitioner to determine whether they involved facts "materially similar" to those 755*755 present in this case. See 240 F. 3d, at 981 ("It is important to analyze the facts in these cases, and determine if they are `materially similar' to the facts in the case in front of us").
To be sure, the Court of Appeals did not also ask whether respondents' conduct so obviously violated the Eighth Amendment that respondents' assertion of qualified immunity could be overcome in the absence of case law involving "materially similar" facts. The majority must believe that the Court of Appeals, therefore, has implicitly abandoned its prior qualified immunity jurisprudence. I, on the other hand, believe it is far more likely that the Court of Appeals omitted such a discussion from its opinion for a much simpler reason: Given petitioner's allegations, it thought that the argument was so weak, and the alleged actions of respondents so far removed from "`the hazy border between excessive and acceptable force,'" Priester, supra, at 926 (quoting Smith, supra, at 1419), that it was not worth mentioning.
B
Turning to the merits of respondents' assertion that they are entitled to qualified immunity, the relevant question is whether it should have been clear to McClaran, Pelzer, and Gates in 1995 that attaching petitioner to a restraining bar violated the Eighth Amendment. As the

Court notes, at that time Alabama was the only State that used this particular disciplinary method when prisoners refused to work or disrupted work squads. See ante, at 733. Previous litigation over Alabama's use of the restraining bar, however, did nothing to warn reasonable Alabama prison guards that attaching a prisoner to a restraining bar was unlawful, let alone that the illegality of such conduct was clearly established. In fact, the outcome of those cases effectively forecloses petitioner's claim that it should have been clear to respondents in 1995 that handcuffing petitioner to a restraining bar violated the Eighth Amendment.
756*756 For example, a year before the conduct at issue in this case took place, the United States District Court for the Northern District of Alabama rejected the Eighth Amendment claim of an Alabama prisoner who was attached to a restraining bar for five hours after he refused to work and scuffled with guards. See Lane v. Findley, No. CV-93—C-1741—S (Aug. 4, 1994). The District Court reasoned that attaching the prisoner to a restraining bar "was a measured response to a potentially volatile situation and a clear warning to other inmates that refusal to work would result in immediate discipline subjecting the offending inmate to similar conditions experienced by work detail inmates rather than a return to inside the institution." Id., at 9. The District Court therefore concluded that there was a "substantial penological justification" for attaching the plaintiff to the restraining bar. Ibid.
Both the Court and petitioner attempt to distinguish this case from Lane on the grounds that the prisoner in Lane was "offered regular water and bathroom breaks" while on the restraining bar. See ante, at 747, n. 12; Reply Brief for Petitioner 16, n. 5. But this argument fails for two reasons: (1) Respondents McClaran and Pelzer were involved only in the May 11 incident, and it is undisputed that petitioner was offered water and a bathroom break every 15 minutes during his 2 hours on the bar that day; and (2) petitioner, as previously mentioned, has never alleged that respondent Gates was responsible for denying him water or bathroom breaks on June 7.
The same year that it decided Lane, the United States District Court for the Northern District of Alabama dismissed another complaint filed by an Alabama prisoner who was handcuffed to a restraining bar. In that case, the prisoner, after refusing to leave prison grounds with his work squad, was handcuffed to a restraining bar for eight hours. Temperatures allegedly reached 95 degrees while the prisoner was attached to the bar, and he was allegedly denied 757*757 food, water, and any opportunities to use bathroom facilities. See Whitson v. Gillikin, No. CV-93—H-1517—NE (Jan. 24, 1994), p. 7, App. 81. As a result of being handcuffed to the bar, the prisoner "suffered lacerations, pain, and swelling in his arms." Id., at 85. The District Court, without deciding whether the defendants' conduct violated the Eighth Amendment, held that "there was no clearly established law identifying [their behavior] as unconstitutional." Id., at 88.
Federal District Courts in five other Alabama cases decided before 1995 similarly rejected claims that handcuffing a prisoner to a restraining bar or other stationary object violated the Eighth Amendment. See, e. g., Ashby v. Dees, No. CV-94—U-0605—NE (ND Ala., Dec. 27, 1994) (fence); Vinson v. Thompson, No. CV-94—A-268—N (MD Ala., Dec. 9, 1994) (restraining bar); Hollis v. Folsom, No. CV-94— T-0052—N (MD Ala., Nov. 4, 1994) (fence); Williamson v. Anderson, No. CV-92—H-675—N (MD Ala., Aug. 18, 1993) (fence); Dale v. Murphy, No. CV-85-1091—H—S (SD Ala., Feb. 4, 1986) (light pole).[11] By contrast,

petitioner is unable to point to any Alabama decision issued before respondents 758*758 affixed him to the restraining bar holding that a prison guard engaging in such conduct violated the Eighth Amendment.
In the face of these decisions, and the absence of contrary authority, I find it impossible to conclude that respondents either were "plainly incompetent" or "knowingly violat[ing] the law" when they affixed petitioner to the restraining bar. Malley, 475 U. S., at 341. A reasonably competent prison guard attempting to obey the law is not only entitled to look at how courts have recently evaluated his colleagues' prior conduct, such judicial decisions are often the only place that a guard can look for guidance, especially in a situation where a State stands alone in adopting a particular policy.
C
In concluding that respondents are not entitled to qualified immunity, the Court is understandably unwilling to hold that our Eighth Amendment jurisprudence clearly established in 1995 that attaching petitioner to a restraining bar violated the Eighth Amendment.[12] Ante, at 742. It is far from "obvious," ante, at 738, 741, that respondents, by attaching petitioner to a restraining bar, acted with "deliberate indifference" to his health and safety. Hudson v. McMillian, 503 U. S. 1, 8 (1992). Petitioner's allegations do not come close to suggesting that respondents knew that the mere act of attaching 759*759 petitioner to the restraining bar imposed "a substantial risk of serious harm" upon him. See Farmer v. Brennan, 511 U. S. 825, 847 (1994). If, for instance, attaching petitioner to a restraining bar amounted to the "gratuitous infliction of `wanton and unnecessary' pain," ante, at 738, it is curious that petitioner, while handcuffed to the bar on May 11, chose to decline most of the bathroom breaks offered to him. Respondents also affixed petitioner to the restraining bar for a legitimate penological purpose: encouraging his compliance with prison rules while out on work duty.
Moreover, if the application of this Court's general Eighth Amendment jurisprudence to the use of a restraining bar was as "obvious" as the Court claims, ante, at 738, 741, one wonders how Federal District Courts in Alabama could have repeatedly arrived at the opposite conclusion, and how respondents, in turn, were to realize that these courts had failed to grasp the "obvious."
D
Unable to base its holding that respondents' conduct violated "`clearly established . . . rights of which a reasonable person would have known,' " ante, at 742 (quoting Harlow, 457 U. S., at 818), on this Court's precedents, the Court instead relies upon "binding Eleventh Circuit precedent, an Alabama Department of Corrections (ADOC) regulation, and a [Department of Justice] report informing the ADOC of the constitutional infirmity in its use of the hitching post," ante, at 741-742. I will address these sources in reverse order.
The Department of Justice report referenced by the Court does nothing to demonstrate that it should have been clear to respondents that attaching petitioner to a restraining bar violated his Eighth Amendment rights. To begin with, the Court concedes that there is no

indication the Justice Department's recommendation that the ADOC stop using the restraining bar was ever communicated to respondents, prison guards in the small town of Capshaw, Alabama. See 760*760 ante, at 745. In any event, an extraordinarily wellinformed prison guard in 1995, who had read both the Justice Department's report and Federal District Court decisions addressing the use of the restraining bar, could have concluded only that there was a dispute as to whether handcuffing a prisoner to a restraining bar constituted an Eighth Amendment violation, not that such a practice was clearly unconstitutional.
The ADOC regulation relied upon by the Court not only fails to provide support for its holding today; the regulation weighs in respondents' favor because it expressly authorized prison guards to affix prisoners to a restraining bar when they were "disruptive to the work squad." App. 102. Alabama prison guards were entitled to rely on the validity of a duly promulgated state regulation instructing them to attach prisoners to a restraining bar under specified circumstances. See Wilson v. Layne, 526 U. S. 603, 617 (1999) (crediting officer's reliance on Marshals Service policy as "important" to the conclusion that qualified immunity was warranted in an area where the state of the law "was at best undeveloped"). And, as the Court recounts, petitioner was placed on the restraining bar after entering into an argument with another inmate while on work duty (May 11) and a wrestling match with a guard when arriving at his work site (June 7). Ante, at 734.
The Court argues that respondents must have been "aware of the wrongful character of their conduct" because they did not precisely abide by the policy set forth in the ADOC regulation. Ante, at 744. Even taking petitioner's allegations as true, however, I am at a loss to understand how respondents failed to comply with the regulation. With respect to respondents McClaran and Pelzer, who were involved only in the May 11 incident, the Court concedes that the required activity log was filled out on that date, and petitioner was offered water and bathroom breaks every 15 minutes. Ante, at 734, 744. With respect to respondent Gates, the Court complains that no such log exists for petitioner's 761*761 June 7 stay on the bar and the record suggests that the periodic water and bathroom-break offers contemplated by the regulation were not made. Petitioner, however, has never alleged that Gates was responsible for supervising or looking after him once he was handcuffed to the post. He has only alleged that Gates placed him there.
While the Court also observes that the regulation provides that an inmate "`will be allowed to join his assigned squad' " whenever he tells an officer "`that he is ready to go to work,' " ante, at 744 (quoting App. 103), the Court again does not explain how any of the respondents in this case failed to observe this requirement. Petitioner has never alleged that he informed respondents or any other prison guard while he was on the bar that he was ready to go to work.
Finally, the "binding Eleventh Circuit precedent" relied upon by the Court, ante, at 741-743, was plainly insufficient to give respondents fair warning that their alleged conduct ran afoul of petitioner's Eighth Amendment rights. The Court of Appeals held in Ort v. White, 813 F. 2d 318 (CA11 1987), that a prison guard did not violate an in mate's Eighth Amendment rights by denying him water when he refused to work, and the Court admits that this holding provides no support for petitioner. Instead, it claims that the "reasoning" in Ort "gave fair warning to respondents that their conduct crossed the line of what is constitutionally

permissible." Ante, at 743. But Ort provides at least as much support to respondents as it does to petitioner. For instance, Ort makes it abundantly clear that prison guards "have the authority to use that amount of force or those coercive measures reasonably necessary to enforce an in mate's compliance with valid prison rules" so long as such measures are not undertaken "maliciously or sadistically." 813 F. 2d, at 325.
To be sure, the Court correctly notes that the Court of Appeals in Ort suggested that it "might have reached a different decision" had the prison officer denied the inmate 762*762 water after he had returned to the prison instead of while he was out with the work squad. Id., at 326. But the suggestion in dicta that a guard might have violated a prisoner's Eighth Amendment rights by denying him water once he returned from work duty does not come close to clearly establishing the unconstitutionality of attaching a disruptive inmate to a restraining bar after he is removed from his work squad and back within prison walls.
Admittedly, the other case upon which the Court relies, Gates v. Collier, 501 F. 2d 1291 (CA5 1974), is more on point. Nevertheless, Gates is also inadequate to establish clearly the unlawfulness of respondents' alleged conduct. In Gates, the Court of Appeals listed "handcuffing inmates to [a] fence and to cells for long periods of time" as one of many unacceptable forms of "physical brutality and abuse" present at a Mississippi prison. Id., at 1306. Others included administering milk of magnesia as a form of punishment, depriving inmates of mattresses, hygienic materials, and adequate food, and shooting at and around inmates to keep them standing or moving. See ibid. The Court of Appeals had "no difficulty in reaching the conclusion that these forms of corporal punishment run afoul of the Eighth Amendment." Ibid.
It is not reasonable, however, to read Gates as establishing a bright-line rule forbidding the attachment of prisoners to a restraining bar. For example, in referring to the fact that prisoners were handcuffed to a fence and cells "for long periods of time," the Court of Appeals did not indicate whether it considered a "long period of time" to be 1 hour, 5 hours, or 25 hours. The Court of Appeals also provided no explanation of the circumstances surrounding these incidents. The opinion does not indicate whether the handcuffed prisoners were given water and suitable restroom breaks or whether they were handcuffed in a bid to induce them to comply with prison rules. In the intervening 21 years between Gates and the time respondents affixed petitioner to 763*763 the restraining bar, there were no further decisions clarifying the contours of the law in this area. Therefore, as another court interpreting Gates has noted: "There is no blanket prohibition against the use of punishment such as the hitching post in Gates which would signal to the Commissioner of Corrections [let alone ordinary corrections officers] that the mere use of the hitching post would be a constitutional violation." Fountain v. Talley, 104 F. Supp. 2d 1345, 1354 (MD Ala. 2000).
Moreover, Eighth Amendment law has not stood still since Gates was decided. In Farmer v.Brennan, 511 U. S. 825 (1994), this Court elucidated the proper test for measuring whether a prison official's state of mind is one of "deliberate indifference," holding 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; the 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 the inference." Id., at 837. Because the Court of Appeals in Gates did not consider this subjective element, Gates alone could not have clearly established that affixing prisoners to a restraining bar was clearly unconstitutional in 1995. Also, in the face of recent Federal District Court decisions specifically rejecting prisoners' claims that Alabama prison guards violated their Eighth Amendment rights by attaching them to a restraining bar as well as a state regulation authorizing such conduct, it seems contrary to the purpose of qualified immunity to hold that one vague sentence plucked out of a 21-year-old Court of Appeals opinion provided clear notice to respondents in 1995 that their conduct was unlawful.
* * *
It is most unfortunate that the Court holds that Officer McClaran, Sergeant Pelzer, and Lieutenant Gates are not 764*764 entitled to qualified immunity. It was not at all clear in 1995 that respondents' conduct violated the Eighth Amendment, and they certainly could not have anticipated that this Court or any other would rule against them on the basis of nonexistent allegations or allegations involving the behavior of other prison guards. For the foregoing reasons, I would affirm the judgment of the Court of Appeals. I respectfully dissent.
[*] Mark R. Brown, James K. Green, and Steven R. Shapiro filed a brief for the American Civil Liberties Union et al.as amici curiae urging reversal.
[1] In its review of the summary judgment, the Court of Appeals viewed the facts in the light most favorable to Hope, the nonmoving party.240 F. 3d 975,977 (CA11 2001)(casebelow). We do the same. Saucier v. Katz, 533 U. S.194, 201 (2001). The Court of Appeals also referenced facts established in Austin v. Hopper, 15 F. Supp. 2d 1210 (MD Ala. 1998). 240 F.3d, at 978,n. 6. This was appropriate because Austin is a classaction suit brought by Alabama prisoners, including Hope, and the District Court opinion in that case discusses Hope's allegations at some length. 15 F. Supp. 2d, at 1247-1248. In their summary judgment papers, both Hope and respondents referenced the findings in Austin, and thus those findings are part of the record in this case.See, e. g., Plaintiff's Preliminary Response to Defendants' Special Report, Record 30; Defendants' Response to Court Order, App. 61. Accordingly, for purposes of our review of the grant of summary judgment, the Austin findings may also be assumed true, and we reference them when appropriate.
As Austin explained,the hitching post is a horizontal bar "`made of sturdy, nonflexible material,' " placed between 45 and 57 inches from the ground. Inmates are handcuffed to the hitching post in a standing position and remain standing the entire time they are placed on the post. Most inmates are shackled to the hitching post with their two hands relatively close together and at face level.15 F. Supp. 2d, at 1241-1242.
[2] "The most repeated complaint of the hitching post, however, was the strain it produced on inmates' muscles by forcing them to remain in a standing position with their arms raised in a stationary position for a long period of time. In addition to their exposure to sunburn, dehydration, and muscle aches, the inmates are also placed in substantial pain when the sun heats the handcuffs that shackle them to the hitching post, or heats the hitching post itself.Several of the inmates described the way in which the handcuffs burned and chafed their skin during their placement on the post." Id., at 1248.
[3] The Court of Appeals noted that respondents had not produced any activity log for this incident, despite the policy that required that such a log be maintained. 240 F.3d, at 977, n.1.
[4] Supplemental App. to Pet. for Cert. 21-27.
[5] In reaching this conclusion, the Court of Appeals stated: "While the DOC claims that Hope would have been released from the hitching post had he asked to return to work, the evidence suggests this is not the case. First, Hope never refused to work. During the May incident, he was the victim in an altercation on the work site,but he never refused to do his job. During the June incident, Hope was involved in an altercation with prison guards. There is

nothing in the record, however, claiming that he refused to work or encouraged other inmates to refuse to work. Therefore, it is not clear that the solution to his hitching post problem was to ask to return to work. Second, Hope was placed in a car and driven back to Limestone to be cuffed to the hitching post on both occasions. Given the facts, it is 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. It is more likely that the guards left Hope on the post until his work detail returned to teach the other inmates a lesson." 240 F. 3d, at 980.
[6] "Since abolishing the pillory over a century ago, our system of justice has consistently moved away from forms of punishment similar to hitching posts in prisons. In Gates v. Collier, 501 F. 2d 1291 (5th Cir. 1974), in regard to `handcuffing inmates to the fence and to cells for long periods of time' and other such punishments, we stated that `[w]e have no difficulty in reaching the conclusion that these forms of corporal punishment run afoul of the Eighth Amendment, offend contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess.' Gates, 501 F. 2d at 1306." Id., at 979.
[7] The DOJ report apparently was not before the District Court in this case, but the Court of Appeals took judicial notice of the report and referenced it throughout the decision below. Id., at 979, n. 8.
[8] The awareness of the risk of harm attributable to any individual respondent may be evaluated in part by considering the pattern of treatment that inmates generally received when attached to the hitching post. In Austin v. Hopper, the District Court cited examples of humiliating incidents resulting from the denial of bathroom breaks. One inmate "was not permitted to use the restroom or to change his clothing for four and onehalf hours after he had defecated on himself." 15 F. Supp. 2d, at 1246. "Moreover, certain corrections officers not only ignored or denied inmates' requests for water or access to toilet facilities, but taunted them while they were clearly suffering from dehydration . . . ." Id., at 1247.
[9] See, e. g., Suissa v. Fulton County, 74 F. 3d 266-270 (CA11 1996); Lassiter v. Alabama A&M Univ. Bd. of Trustees, 28 F. 3d 1146, 1150 (CA11 1994); Hill v. Dekalb Regional Youth Detention Center, 40 F. 3d 1176, 1185 (CA11 1994).
[10] "[T]he object of the `clearly established' immunity standard is not different from that of `fair warning' as it relates to law `made specific' for the purpose of validly applying § 242. The fact that one has a civil and the other a criminal law role is of no significance; both serve the same objective, and in effect the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes. To require something clearer than `clearly established' would, then, call for something beyond `fair warning.' " 520 U. S., at 270-271.
[11] The regulation was not provided to the District Court, but it was added to the record at the request of the Court of Appeals. See App. 100-106.
[12] In three of the decisions, the inmates were given the choice between working or being restrained. See Whitson v. Gillikin, No. CV-93—H— 1517—NE (ND Ala., Jan. 24, 1994), p. 4, App. 84; Dale v. Murphy, No. CV-85-1091—H—S (SD Ala., Feb. 4, 1986), p. 2; Ashby v. Dees, No. CV-94—U-0605—NE (ND Ala., Dec. 27, 1994), p. 6. In others, the inmates were offered regular water and bathroom breaks. See Lane v. Findley, No. CV-93—C-1741—S (ND Ala., Aug. 4, 1994), p. 9; Williamson v. Anderson, No. CV-92—H-675—N (MD Ala., Aug. 18, 1993), p. 2; Hollis v. Folsom, No. CV-94—T-0052—N (MD Ala., Nov. 4, 1994), p. 9. Finally, in Vinson v. Thompson, No. CV-94—A-268—N (MD Ala., Dec. 9, 1994), the inmate was restrained for approximately 45 minutes. Id., at 2.
[13] There are apparently no decisions on similar facts from other Circuits, presumably because Alabama is the only State to authorize the use of the hitching post in its prison system.
[1] Despite the Court's consistent use of the term "hitching post," the apparatus to which petitioner was handcuffed is a "restraining bar." See Ala. Dept. of Corrections Admin. Reg. No. 429, p. 1 (Oct. 26, 1993),reprinted in App. 102.
[2] While petitioner also sued five other guards in connection with the fight that occurred before he was affixed to the restraining bar on June 7, 1995, he later withdrew his claims against them and asked that they be dismissed from the case. See 240 F. 3d, at 977, n. 2; Plaintiff's Special Report and Brief in Response to Defendants' Motion for Summary Judgment (ND Ala.), pp. 1-2, 5-6, Record, Doc. No. 33.

[3] See Second Affidavit of Larry Hope (ND Ala.), at 2-3, Record, Doc. No. 32.
[4] Id., at 3.
[5] Id., at 3-4.
[6] There is some confusion as to who actually affixed petitioner to the restraining bar on May 11. While petitioner "believe[s]" that Sergeant Pelzer did so, id., at 3, the "Institutional Incident Report" produced by respondents and written by Officer McClaran indicates that Officers Keith Gates and Mark Dempsey placed petitioner on the bar, see id., Exh. 2. Petitioner acknowledged that fact and attached the report to his second affidavit. See id., at 3. Consequently, interpreting petitioner's pleadings in the light most favorable to him, I will assume that petitioner has alleged that Pelzer, Gates, and Dempsey cuffed him to the bar on May 11. Additionally, I will assume that the "Officer Keith Gates" mentioned in Officer McClaran's report is the same person as the Lieutenant Jim Gates who is a respondent in this case. It is worth noting, however, that respondents vigorously dispute petitioner's assertion that Lieutenant Jim Gates and Officer Keith Gates are one and the same, see Brief for Respondents i, and petitioner has yet to produce any evidence to support this somewhat incredible claim.
[7] See, e. g., Plaintiff's Special Report and Brief in Response to Defendant's Motion for Summary Judgment 1-2, Record, Doc. No. 33 ("[T]he only remaining claims are those against Defendants McClaran, Pelzer,and Gates in connection with the May 11, 1997 hitching post incident,and Defendant Gates in connection with the June 7 hitching post incident"); Second Affidavit of Larry Hope, Record, Doc. No. 32.
[8] It is important to note that petitioner has never maintained that Gates placed him on the bar without a shirt. Rather, petitioner's first affidavit, see Affidavit of Larry Hope 2, Record, Doc. No. 1, as well as photographs appended as exhibits to petitioner's second affidavit, see Second Affidavit of Larry Hope, Exhs. 3-5, Record, Doc. No. 32, which were verified by petitioner as "taken while [he] was on the hitching post on June 7," id., at 5, indicate that petitioner's shirt was removed, if at all,after he was attached to the bar.
[9] In an effort to rehabilitate the Court's opinion, Justice Stevens argues that the specific nature of respondents' connection to the events of May 11 and June 7 falls outside the scope of the questions presented.See ante, at 746. In conducting qualified immunity analysis, however, courts do not merely ask whether, taking the plaintiff's allegations as true, the plaintiff's clearly established rights were violated.Rather, courts must consider as well whether each defendant's alleged conduct violated the plaintiff's clearly established rights.For instance, an allegation that Defendant A violated a plaintiff's clearly established rights does nothing to overcome Defendant B's assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A's conduct. Similarly here, in the absence of any allegation by petitioner that respondents were in any way responsible for the behavior of other prison guards on May 11 and June 7, the conduct of those other guards should not be considered in analyzing whether respondents are entitled to qualified immunity.
[10] Cf. Saucier v. Katz, 533 U. S. 194, 201-202 (2001) (discounting as too general the principle that a police officer's use of force violates the Fourth Amendment if it is excessive under objective standards of reasonableness).
[11] The Court's attempt to distinguish away all of these decisions only serves to undermine further its qualified immunity analysis. The Court appears to suggest that affixing a prisoner to a restraining bar is not clearly unlawful so long as (1) guards provide the prisoner with water and regular bathroom breaks, or (2) the prisoner is placed on the restraining bar as a result of his refusal to work. See ante, at 747, n. 12. But as previously explained, see supra, at 756, petitioner was offered water and bathroom breaks every 15 minutes during his May 11 stay on the bar, and there has never been any allegation either that respondents McClaran and Pelzer were involved at all in the June 7 incident or that respondent Gates was responsible for denying petitioner water or bathroom breaks on that date. As a result, even under the Court's own view of the law, respondents are entitled to qualified immunity. Moreover, the Court nowhere explains how respondents were supposed to figure out in 1995 that it was permissible to affix prisoners to a restraining bar if they refused to work but it was unlawful to do so if they were disruptive while on work duty. The claim that such a distinction was clearly established in Eighth Amendment jurisprudence at that time is nothing short of incredible.
[12] I continue to believe that "[c]onditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence." Farmer v. Brennan, 511 U. S. 825, 859 (1994) (Thomas, J., concurring in judgment). As a result, I do not think, as an original matter, that attaching petitioner to the restraining bar constituted "punishment" under the Eighth Amendment. See ibid. Nevertheless, I recognize that this Court has embraced the

opposite view—that the Eighth Amendment does regulate prison conditions not imposed as part of a sentence, see, e. g., Estelle v. Gamble, 429 U. S. 97 (1976)—so I will apply that jurisprudence in evaluating whether respondents' conduct violated clearly established law. I note, however, that I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case. See Farmer, supra, at 861-862 (Thomas, J., concurring in judgment).

 
 304 F.3d 1331 (2002)
Larry HOPE, Plaintiff-Appellant, v.
Mark PELZER, Sergeant, Correctional Officer II, Gene McClaran, et al., Defendants-Appellees,
No. 00-12150.
United States Court of Appeals, Eleventh Circuit.
September 13, 2002.
Craig Thomas Jones, Craig T. Jones, PC, Decatur, GA, for Plaintiff-Appellant.
Kim Tobias Thomas, Andrew Weldon Redd, Ellen R. Leonard, Alabama Dept. of Corrections, Montgomery, AL, for Defendants-Appellees.
Before TJOFLAT and BIRCH, Circuit Judges, and VINING[*], District Judge.
PER CURIAM:
On 27 June 2002, the Supreme Court of the United States reversed this panel's opinion in Hope v. Pelzer, 240 F.3d 975 (11th Cir.2001). See Hope v. Pelzer, 534 U.S. 1120, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Pursuant to the Supreme Court's opinion, we reverse the district court's grant of the defendant prison guards' motion for summary judgment and remand the case to the district court for further proceedings consistent with the Supreme Court's opinion.
REVERSED AND REMANDED.
[*] Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation.

 
 Hope v. Pelzer, 534 U.S. 1120 (2002)
122 S.Ct. 933 Supreme Court of the United States
Larry HOPE, petitioner, v.
Mark PELZER, et al. No. 01-309. | Jan. 29, 2002. Former decision, 534 U.S. 1073, 122 S.Ct. 802. Case below, 11 Cir., 240 F.3d 975. Opinion Order granting petition for writ of certiorari amended as follows: “Petition for writ of certiorari granted limited to the following questions: 1. Whether state officials sued in their individual capacities under 42 U.S.C. § 1983 are entitled to qualified immunity unless they have violated statutory or constitutional rights ‘clearly established’ by a case presenting facts ‘materially similar’ to those in the plaintiff’s case. 2. Whether under the circumstances that must be taken as true at the summary judgment state of this case, tying a prisoner to a ‘hitching post’ violates ‘clearly established’ constitutional rights for purposes of qualified immunity under 42 U.S.C. § 1983.” Parallel Citations 122 S.Ct. 933 (Mem), 151 L.Ed.2d 961, 70 USLW 3481
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 Hope v. Pelzer, 534 U.S. 1073 (2002)
122 S.Ct. 802 Supreme Court of the United States
Larry HOPE, petitioner, v.
Mark PELZER, et al. No. 01-309. | Jan. 4, 2002.
Case below, 240 F.3d 975.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit granted.
Parallel Citations 122 S.Ct. 802 (Mem), 151 L.Ed.2d 688, 70 USLW 3419, 70 USLW 3272, 70 USLW 3147, 70 USLW 3426
	  

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