FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN COLBY HOARD,

Plaintiff-Appellant,

v.

J. HARTMAN; BROWN, MR.; ORTEGA,

MR.; E. SALDAVAR; JAMES A.

TAYLOR; MARK NOOTH,

Defendants-Appellees.

No. 16-35738

D.C. No.

2:13-cv-02161-

BR

OPINION

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted May 17, 2018

Portland, Oregon

Filed September 13, 2018

Before: A. Wallace Tashima, M. Margaret McKeown,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez
2 HOARD V. HARTMAN

SUMMARY*

Prisoner Civil Rights

The panel vacated the district court’s summary judgment 

and judgment entered following a jury trial, and remanded 

for a new trial, in an action brought by an Oregon state 

prisoner pursuant to 42 U.S.C. § 1983 alleging excessive 

force and deprivation of property.

Plaintiff alleged that during a cell search a prison official 

repeatedly slammed his head against a steel door and a 

concrete floor. During trial, the district court instructed the 

jury, in part, that to succeed on his excessive force claim, 

plaintiff had to prove that the prison official acted 

maliciously and sadistically for the purpose of causing harm. 

The district court further instructed the jury that the term 

“sadistically” in this context meant “having or deriving 

pleasure from extreme cruelty.”

The panel held that a claim for excessive force under the 

Eighth Amendment does not require proof that an officer 

enjoyed or otherwise derived pleasure from his or her use of 

force. The district court therefore plainly erred by 

instructing the jury that “maliciously and sadistically for the 

very purpose of causing harm” required having or deriving 

pleasure from extreme cruelty. The panel held that these 

erroneous instructions prejudiced plaintiff, and that 

intervention was necessary to prevent a miscarriage of 

justice.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
HOARD V. HARTMAN 3

The panel vacated the district court’s sua sponte grant of 

summary judgment to the defendants on plaintiff’s 

deprivation-of-property claim after determining that 

plaintiff, who was proceeding pro se at the time, failed to 

receive sufficient notice that the claim was at issue on 

summary judgment.

COUNSEL

Joshua Hafenbrack (argued) and Sean A. Lev, Kellogg 

Hansen Todd Figel & Frederick PLLC, Washington, D.C., 

for Plaintiff-Appellant.

Peenesh Shah (argued), Assistant Attorney General; 

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, 

Attorney General; Office of the Attorney General, Salem, 

Oregon; for Defendants-Appellees.

OPINION

PAEZ, Circuit Judge:

Cruelty distilled is harm inflicted without reason: pain 

for the sake of pain, violence in the name of violence. For 

this reason, the Supreme Court has long held that the Eighth 

Amendment forbids the application of force by officers 

against an inmate “for the very purpose of causing harm,” 

Whitley v. Albers, 475 U.S. 312, 320–21 (1986), without 

regard to the officers’ emotional enjoyment. A correctional 

officer who slams an unresisting inmate’s head into a 

concrete floor until he bleeds is therefore no less liable for 

excessive force if he does so dispassionately than if he does 

so with pleasure.
4 HOARD V. HARTMAN

Notwithstanding these well-established principles, the 

district court instructed the jury that in order for Sean Hoard 

to prevail on his excessive force claim under the Eighth 

Amendment, he had to prove by a preponderance of the 

evidence that his alleged abuser “ha[d] or deriv[ed] pleasure 

from extreme cruelty” while beating him. This instruction 

saddled Hoard with the unnecessary and exceedingly 

difficult burden of proving that the officer was not just cruel, 

but sadistic as well. Unsurprisingly, the jury returned a 

verdict in favor of the officer.

We hold that excessive force under the Eighth 

Amendment does not require proof that an officer enjoyed 

or otherwise derived pleasure from his or her use of force. 

The district court’s instructions to the contrary were plainly 

erroneous. Moreover, these erroneous instructions 

prejudiced Hoard. Given the circumstances of this case, we 

conclude that our intervention is necessary to prevent a 

miscarriage of justice. We therefore vacate the district 

court’s judgment and remand for a new trial. We also vacate 

the district court’s sua sponte grant of summary judgment to 

the Defendants on Hoard’s deprivation-of-property claim for 

lack of adequate notice.1

I.

A.

On the morning of December 21, 2012, Hoard requested 

a razor for personal use. At the time, he was confined to a 

cell in the Intensive Management Unit (“IMU”) at the Snake 

 1 Defendants are Mark Nooth and James Taylor, Snake River 

Correctional Institution’s superintendent and grievance coordinator, 

respectively, Officer Hartman, Officer Ortega, Officer Saldivar, and 

Sergeant Brown.
HOARD V. HARTMAN 5

River Correctional Institution, a prison located in eastern 

Oregon. The IMU is a maximum custody unit reserved for 

inmates who have previously exhibited violent behavior or 

who otherwise present serious management concerns. 

Inmates confined in the IMU are subject to significant 

restrictions. They are not permitted to keep their razors in 

their cells and must request them from the correctional 

officer on duty. They spend 23 hours a day in their cells and 

may leave only for showers, recreational activity, and 

medical attention. Before exiting their cells, IMU inmates 

must be handcuffed through a cuff port. At least two 

correctional officers are required to escort IMU inmates to 

their destination at all times.

Officer Ortega, the correctional officer on duty that 

morning, granted Hoard’s request and issued him a razor 

pursuant to IMU policies. The parties dispute whether 

Officer Ortega provided Hoard with a functioning razor. 

Regardless, it is undisputed that Hoard smashed the razor 

into pieces out of frustration, flushing the smaller fragments 

down the toilet and sweeping the larger ones into the trash 

can. Unable to retrieve the razor during his return trip to 

Hoard’s cell in the afternoon, Officer Ortega enlisted the 

assistance of Sergeant Brown and Officer Saldivar to 

conduct a search of Hoard’s cell for the missing razor pieces. 

The parties agree that Hoard initially complied with the 

search and submitted to the restraints without difficulty. 

Hoard was cuffed and left outside his cell, during which time 

he was “compliant,” “quiet,” and behaving “fine.”

From this point on, however, the parties’ narratives 

sharply diverge. Hoard testified at trial that while waiting 

for the other officers to complete their search, he saw Officer 

Hartman walk towards him with a threatening grin on his 

face. This was particularly concerning to Hoard, who 
6 HOARD V. HARTMAN

believed that Officer Hartman bore a grudge against him 

based on their prior interactions.

In this version of events, Hoard’s sense of foreboding 

proved prescient. He testified that while the other officers 

were preoccupied with searching his cell, Officer Hartman 

grabbed him by the collar and started to yank and jerk him 

around, making it difficult for Hoard to breathe. When 

Hoard asked Officer Hartman to stop, Officer Hartman 

allegedly responded that this was what Hoard deserved and 

threatened that “this is going to hurt.” Hoard then called out 

to Officer Saldivar, who came out of the cell to assess the 

situation. According to Hoard, Officer Saldivar asked 

Officer Hartman to loosen his grip on Hoard’s collar and to 

stop provoking Hoard. Satisfied that Officer Hartman was 

following his instructions, Officer Saldivar turned away and 

headed back towards the cell to resume his search.

Shortly thereafter, Officer Hartman allegedly grabbed 

Hoard by the back of his head and slammed his face against 

a steel door. Hoard testified that he lost consciousness and 

that when he came to a short while later, he felt blood 

dripping down his face and off his nose. He also realized 

that his pants and underwear had been pulled down to his 

ankles, leaving him exposed in front of the officers and other 

inmates. Hoard testified that although the other three 

officers were present and watching, none of them offered 

him any help or explanation for what happened. Hoard 

curled himself into a fetal position on the ground, but to no 

avail. Declaring that “this” was what Hoard deserved, 

Officer Hartman allegedly proceeded to slam Hoard’s face 

into the concrete floor, scraping his bleeding cut across the 
HOARD V. HARTMAN 7

drain.2 By this point, Sergeant Brown and Officer Ortega 

had left the unit to retrieve leg restraints for Hoard. Officer 

Saldivar remained but did not intervene. Hoard explained at 

trial that he tried to remain “limp” throughout the alleged 

abuse, because he was scared that any movement on his part 

would exacerbate the situation and result in the use of 

additional force.

The officers’ recollection of the incident presents a 

different story. In this version of events, Hoard grew 

increasingly agitated while waiting for the search to finish 

and began to “thrash[] his head back and forth” as the other 

inmates taunted him from inside their cells. Officer Hartman 

testified that he ordered Hoard to remain calm and then 

“placed” Hoard against the cell door. Officer Saldivar 

testified that he briefly stepped outside of Hoard’s cell to tell 

Hoard to “relax,” but that he returned to the cell after Officer 

Hartman told him to go back to the search. After 

overhearing Hoard demand that Officer Hartman let him go, 

Officer Saldivar moved to assist Officer Hartman with 

restraining Hoard. Officer Saldivar testified that he grabbed 

and swept Hoard’s legs and that the movement pulled 

Hoard’s pants and underwear down, leaving Hoard exposed. 

Hoard allegedly then asked the officers, “Is this all you got?”

Officer Hartman testified that together with Officer 

Saldivar, he “plac[ed]” Hoard on the floor and used only 

“minimal” force to restrain Hoard. Officer Hartman also 

testified that he never saw Hoard’s pants pulled down to his 

ankles and that Hoard never lost consciousness. The officers 

eventually put leg irons on Hoard’s ankles because he was 

allegedly kicking his legs and thrashing his head back and 

 2 Installed to drain water from the cells in the case of a flood, the 

drain runs the full length of the cells and is covered by a metal grate.
8 HOARD V. HARTMAN

forth while on the ground. Neither Officer Hartman nor 

Officer Ortega recalled seeing any injuries on Hoard either 

during or after the incident, but a body spill response report 

prepared afterwards described “blood on [the] floor” in front 

of Hoard’s cell. The altercation was not video recorded.

Hoard was moved to intake, where a nurse cleaned the 

blood from his face, rinsed his cut, and applied glue and a 

butterfly bandage to his laceration. A few days after the 

incident, Hoard attempted suicide by overdosing on pills. 

He testified that his suicide attempt was fueled in part by the 

embarrassment and humiliation he felt at having his pants 

and underwear ripped down in front of the other inmates, 

some of whom he “considered predators.” As for physical 

injuries, in addition to the cut on his face—which left a scar 

on his head—Hoard suffered continuous pain on the right 

side of his face and in particular, his right jaw, for which he 

was eventually prescribed painkillers. Hoard was also 

prescribed a mouth guard for the pain and placed on a liquid 

diet for a short period of time. At Hoard’s request, he was 

moved from a liquid diet to a soft diet, which lasted under a 

month. The injury did not fully heal: three years later, Hoard 

testified that he could not fully open his mouth without 

popping his jaw and that his jaw would hurt if he talked for 

too long.

Following the altercation, Captain Robert Real prepared 

an “unusual incident report” based on each of the four 

officers’ memos.3 This report, like the officers’ memos, 

failed to mention the injuries to Hoard’s jaw, the officers’ 

 3 Captain Real testified that an unusual incident report documents 

“anything . . . unusual to the institution that could be a matter of interest 

to the general public at a later point.” This includes any use of force 

against inmates.
HOARD V. HARTMAN 9

use of leg restraints, or the fact that Hoard had been left 

exposed from the waist down while on the prison floor. 

Although Captain Real testified at trial that he thought that 

the use of force had been appropriate and necessary, a 

preliminary review of the unusual incident report 

recommended that the incident be investigated under full 

review.4 The preliminary review expressed concern that the 

officers’ memos “lack[ed] detail” and “[did] not mention the 

injury to inmate Hoard.” The review also included a 

handwritten note stating that “[a] camera should have been 

used to video the event as a planned use of force.” Contrary 

to the preliminary review’s recommendation, however, no 

full review ever took place because the Inspector General 

deemed it unnecessary.

B.

Hoard filed a pro se complaint alleging various 

constitutional and state law violations against the 

Defendants on December 9, 2013. The district court granted 

Hoard’s motion to file a first amended complaint, and the 

Defendants moved for summary judgment.

Because Hoard was unrepresented, the district court—

adopting the magistrate judge’s report and 

recommendation—liberally construed Hoard’s complaint as 

raising four types of claims: a section 1983 claim against 

Snake River Correctional Institution’s superintendent, Mark 

Nooth, and grievance coordinator, James Taylor, for 

 4 According to Captain Real, conducting a full review requires 

bringing in an “outside body” staffed with people “outside the institution 

that would review all the facts, conduct interviews of staff that were 

involved, review any kind of documentation, videos,” and other 

materials to determine whether the use of force fell within the rules.
10 HOARD V. HARTMAN

violating Hoard’s Fourteenth Amendment right to due 

process; a section 1983 excessive force and deliberate 

indifference claim under the Eighth Amendment against 

Nooth, Officers Hartman, Ortega, Saldivar, and Sergeant 

Brown; supplemental state common law claims against all 

Defendants; and state constitutional claims against Hartman 

and Taylor.5 The district court granted Defendants’ motion 

for summary judgment as to Nooth and Taylor on all claims. 

With respect to Taylor, the court concluded that although 

Hoard alleged in his complaint that he had been deprived of 

his property from December 21, 2012 to January 10, 2013, 

his failure to detail exactly what property he was deprived of 

meant that there was no genuine issue of material fact 

supporting his allegations that he had been deprived of a 

constitutionally-protected property interest. The district 

court denied Defendants’ motion for summary judgment and 

qualified immunity on the remaining excessive force and 

deliberate indifference claims.6

The district court set the case for trial and appointed pro 

bono counsel to represent Hoard. The trial lasted two days. 

At the conclusion of the evidence, the district court granted 

judgment as a matter of law for Sergeant Brown and Officer 

Ortega. Hoard’s excessive force claim against Officer 

Hartman and his deliberate indifference claim against 

Officer Saldivar went to the jury. Pursuant to the parties’ 

jointly proposed jury instructions, the district court 

instructed the jury that to succeed on his excessive force 

 5 Hoard successfully filed a second amended complaint, but the 

complaint was unaccompanied by a declaration attesting to its contents. 

Accordingly, the district court relied only on Hoard’s first amended 

complaint for its summary judgment order, as do we.

6 The district court granted summary judgment to the Defendants on 

Hoard’s state common law and state constitutional claims.
HOARD V. HARTMAN 11

claim, Hoard had to prove that Officer Hartman “used 

excessive and unnecessary force against the plaintiff under 

all the circumstances,” that Officer Hartman had “acted 

maliciously and sadistically for the purpose of causing 

harm,” and that Officer Hartman’s acts harmed Hoard.

Midway through the jury’s deliberations, which 

ultimately lasted eight hours, four of the jurors sent a signed 

note asking the district court to “provide a definition for 

maliciously and for sadistically as it pertains to this case.” 

Inexplicably, counsel for Hoard agreed that the court should 

respond with the “ordinary dictionary meaning of the terms 

‘malicious’ and sadistic.’” The district court therefore 

responded to the jurors’ question with a supplemental 

instruction explaining that “[t]he term ‘maliciously’ in the 

instructions has its ordinary meaning, which is ‘having or 

showing a desire to cause harm to another.’ Likewise, the 

term ‘sadistically’ has its ordinary meaning, which in this 

context means ‘having or deriving pleasure from extreme 

cruelty.’”

After receiving the supplemental instruction, the jury 

returned a verdict finding that Hoard had failed to prove by 

a preponderance of the evidence that Officer Hartman used 

excessive force. Because the jury did not find that Officer 

Hartman used excessive force, Hoard necessarily failed to 

prove that Officer Saldivar was deliberately indifferent to the 

use of excessive force.

This, however, did not mark the end of the trial. 

Following the jury’s verdict, the district court asked if any 

of the jurors had anything they wished to say. In response, 

one of the jurors expressed to the court his or her discomfort 

with the “incomplete” nature of the officers’ reports and 

remarked that this concern was shared by all of the jurors. 

The juror was particularly troubled by the fact that some of 
12 HOARD V. HARTMAN

the reports omitted any mention of Hoard’s injuries, which 

made it “difficult” for the juror to believe that the jurors “had 

all the information.” Another juror expressed “concern[] 

that the situation was not a good one for anybody” and that 

there were “things that need[ed] to be addressed in this kind 

of . . . incarceration situation.”

Nonetheless, in accordance with the verdict, the district 

court entered judgment in favor of the Defendants. Hoard 

timely appealed and we appointed pro bono counsel.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review the district court’s supplemental jury instructions for 

plain error because counsel for Hoard failed to object to the 

district court’s proposed definition for “sadistically” at trial.7 

See C.B. v. City of Sonora, 769 F.3d 1005, 1016–17 (9th Cir. 

2014) (en banc) (holding that plain error review applies in 

civil cases “when a party fails to preserve an objection”); see 

also Fed. R. Civ. P. 51(d) (“A court may consider a plain 

error in the instructions that has not been preserved as 

required by Rule 51(d)(1) if the error affects substantial 

rights.”).

We reject Hoard’s argument that we may apply de novo 

review to the district court’s supplemental jury instructions 

simply because his appeal presents a pure question of law. 

Although it is true that we have occasionally applied de novo 

 7 The standard of review is identical for jury instructions and 

supplemental jury instructions given in response to a jury’s questions. 

See United States v. Castillo, 866 F.2d 1071, 1085 (9th Cir. 1988). 

Defendants do not argue waiver, only forfeiture. Accordingly, both 

parties agree that, at a minimum, plain error review applies to the district 

court’s supplemental instruction.
HOARD V. HARTMAN 13

review to unpreserved arguments in criminal cases “where 

the appeal presents a pure question of law and there is no 

prejudice to the opposing party,” United States v. GonzalezAparicio, 663 F.3d 419, 426 (9th Cir. 2011), we have never 

recognized this exception for civil cases. Nor do we see a 

need to expand this exception beyond the criminal context 

given that “the stakes are lower in the civil context.” C.B., 

769 F.3d at 1018.

We review de novo a district court’s decision to grant 

summary judgment. See Brunozzi v. Cable Commc’ns, Inc., 

851 F.3d 990, 995 (9th Cir. 2017).

III.

We turn first to Hoard’s argument that the district court’s 

supplemental jury instructions were plainly erroneous. We 

may exercise our discretion to correct a district court on plain 

error review when the following factors are met: (1) the 

district court erred; (2) the error was obvious or plain; (3) the 

error affected substantial rights; and (4) the error “seriously 

impaired the fairness, integrity, or public reputation of 

judicial proceedings.” C.B., 769 F.3d at 1018–19 (quoting 

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 

2006)). We may also take into consideration “the costs of 

correcting an error, and—in borderline cases—the effect that 

a verdict may have on nonparties,” although these 

considerations are by no means dispositive as to whether we 

will exercise our discretion to correct forfeited errors. Id. at 

1018.

We conclude that the district court’s supplemental 

instructions to the jury were plainly erroneous. Because this 

error likely prejudiced the outcome of the case and—left 

uncorrected—would contribute to a miscarriage of justice, 

we vacate the district court’s judgment and remand for a new 
14 HOARD V. HARTMAN

trial on Hoard’s excessive force and deliberate indifference 

claims against Officers Hartman and Saldivar.8

A.

There is no doubt that the Constitution does not require 

proof of sadism, or pleasure from extreme cruelty, for 

excessive force claims brought under the Eighth 

Amendment. Accordingly, the district court erred when it 

included such a requirement in its supplemental instruction

to the jury.

The Eighth Amendment has long guarded inmates 

against the “unnecessary and wanton infliction of pain.” 

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality 

opinion); see also Estelle v. Gamble, 429 U.S. 97, 102–03 

(1976) (“Thus, we have held repugnant to the Eighth 

Amendment punishments which . . . involve the unnecessary 

and wanton infliction of pain.” (internal citations and 

quotation marks omitted)). For a time, this meant that the 

sanctions imposed on inmates could not “be so totally 

without penological justification that [they] result[] in the

gratuitous infliction of suffering.” Gregg, 428 U.S. at 183. 

The focus of this inquiry was therefore not on officer intent, 

but on the lack of any penological justification for harming 

the inmate.

The Gregg and Estelle standard for “unnecessary and 

wanton infliction of pain” in excessive force cases was shortlived. In Whitley v. Albers, 475 U.S. 312 (1986), the 

Supreme Court clarified that in some circumstances, “the 

 8 We therefore do not address Hoard’s argument that the district 

court erroneously excluded Officer Ortega’s deposition statements on 

cross-examination.
HOARD V. HARTMAN 15

question whether the measure taken inflicted unnecessary 

and wanton pain and suffering ultimately turns on ‘whether 

force was applied in a good faith effort to maintain or restore 

discipline or maliciously and sadistically for the very 

purpose of causing harm.’” Id. at 320–21 (emphasis added) 

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 

1973) (Friendly, J.)). By focusing on the officer’s intent at 

the time he or she acted, Whitley ensured that officers would 

not be held liable under the Eighth Amendment “simply 

because it may appear in retrospect that the degree of force 

authorized or applied for security purposes was 

unreasonable, and hence unnecessary in the strict sense.” Id. 

at 319. As Justice Marshall pointed out in his dissent, the 

majority opinion in Whitley created a “distinct and more 

onerous burden” for plaintiff prisoners than the original 

unnecessary and wanton standard, which did not require 

proof that the officers acted for the purpose of causing harm. 

Id. at 328–30 (Marshall, J., dissenting).

In the decades since Whitley was decided, the Supreme 

Court has consistently emphasized that the “core judicial 

inquiry” in excessive force cases is “whether force was 

applied in a good-faith effort to maintain or restore 

discipline, or maliciously and sadistically to cause harm.” 

Hudson v. McMillian, 503 U.S. 1, 7 (1992) (emphasis 

added); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) 

(same). The contrast is clear: an officer who harms an 

inmate as part of a good-faith effort to maintain security has 

acted constitutionally, but an officer who harms an inmate 

“for the very purpose of causing harm,” Whitley, 475 U.S. at 

321, has engaged in excessive force, provided that the other 

elements of excessive force have been met.9 Put simply, 

 9 The other two elements of an Eighth Amendment excessive force 

claim are 1) “the defendant used excessive and unnecessary force under 
16 HOARD V. HARTMAN

officer intent—not officer enjoyment—serves as the core 

dividing factor between constitutional and unconstitutional 

applications of force. Thus, “[a]n inmate who is gratuitously

beaten by guards does not lose his ability to pursue an 

excessive force claim merely because he has the good 

fortune to escape without serious injury.” Wilkins, 559 U.S. 

at 38 (emphasis added).

Defendants nonetheless urge us to conclude that the 

district court did not err in instructing the jury on the 

meaning of “sadistically” because Whitley established that 

only force applied “maliciously and sadistically to cause

harm” constitutes excessive force. In support of their 

argument, Defendants point to a string of Eighth Circuit 

decisions explaining that “[t]he word ‘sadistically’ is not 

surplusage; ‘“maliciously” and “sadistically” have different 

meanings, and the two together establish a higher level of 

intent than would either alone.’” Jackson v. Gutzmer, 

866 F.3d 969, 974 (8th Cir. 2017) (quoting Howard v. 

Barnett, 21 F.3d 868, 872 (8th Cir. 1994)); see also Parkus 

v. Delo, 135 F.3d 1232, 1234 (8th Cir. 1998) (concluding 

that the district court did not abuse its discretion by defining 

“sadistically” for the jury).

We decline to follow our sister circuit’s interpretation of 

Whitley. As we have cautioned before, “[o]pinions, unlike 

statutes, are not usually written with the knowledge or 

expectation that each and every word may be the subject of 

searching analysis.”10 United States v. Muckleshoot Indian 

 all of the circumstances”; and 2) the defendant’s acts caused the plaintiff 

harm. 9th Cir. Civ. Jury Instr. 9.26 (2017).

10 We also do not find the Seventh Circuit’s decision in Fillmore v. 

Page, 358 F.3d 496 (7th Cir. 2004) persuasive, because the opinion does 
HOARD V. HARTMAN 17

Tribe, 235 F.3d 429, 433 (9th Cir. 2000). Sometimes, a word 

is just a word. And there is ample evidence here that the 

Supreme Court did not intend its use of “maliciously and 

sadistically” in Whitley to work a substantive change in the 

law on excessive force beyond requiring intent to cause 

harm. Chief among this evidence is the fact that the Supreme 

Court has never addressed “maliciously and sadistically” 

separately from the specific intent to cause harm. It has 

even, on one occasion, omitted any mention of “maliciously 

and sadistically” altogether and simply explained that “a 

purpose to cause harm is needed for Eighth Amendment 

liability in a [prison] riot case.” Cty. of Sacramento v. Lewis, 

523 U.S. 833, 854 (1998). Indeed, as recently as Kingsley v. 

Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court 

referred to this factor of the excessive force test as the 

“malicious and sadistic purpose to cause harm.” Id. at 2476 

(emphasis added).

The Court’s characterization of this standard in Kingsley 

comports with our understanding that the phrase 

“maliciously and sadistically” serves a predominantly 

rhetorical function. Rather than create additional elements 

for plaintiffs to satisfy, the use of these two terms 

emphasizes the cruelty inherent in harming an inmate for no 

other reason than to cause harm. See also Gottlieb ex rel. 

Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175 

n.1 (3d Cir. 2001) (explaining that “[t]he use of the term 

‘sadistic’ in this standard is something of a misnomer,” 

because “[p]recedent does not require that the alleged 

offender take pleasure or satisfaction from the injury, as the 

term entails, but rather only that the offender intended 

harm”). Thus, we concluded in Robins v. Meecham, 60 F.3d 

 

not discuss the development of the Supreme Court’s Eighth Amendment

standard for excessive force.
18 HOARD V. HARTMAN

1436 (9th Cir. 1995), that the defendant officers were not 

entitled to qualified immunity because the plaintiff had 

created a triable issue of material fact as to whether the 

officers had shot at him with the “specific intent to harm.” 

Id. at 1440–41.

We have never required proof of sadism or masochism 

in excessive force cases. As we have explained before, in 

order to assess whether “the handling of [an inmate] was for 

the purpose of maintaining or restoring discipline, or for the 

malicious and sadistic purpose of causing him harm,” we 

will “examine the need for the application of the measure or 

sanction complained of, the relationship between the need 

and the measure or sanction used, the extent of any injury 

inflicted, and the extent of the surrounding threat to the 

safety of staff and inmates.” LeMaire v. Maass, 12 F.3d 

1444, 1454 (9th Cir. 1993). Consistent with Whitley and its 

progeny, an officer’s subjective enjoyment is not a necessary 

element of an Eighth Amendment excessive force claim. Of 

course, an officer who harms an inmate for his or her 

personal enjoyment has engaged in excessive force, but that 

is not the question before us: the question is whether proof 

of sadism is required for excessive force claims. We hold 

that it is not. See id. at 1461 (“[T]he record establishes 

conclusively that none of the named practices were 

unnecessary, or imposed on [the plaintiff] maliciously or 

sadistically or for the purpose of causing harm.” (first 

emphasis in original)); see also Jeffers v. Gomez, 267 F.3d 

895, 912 (9th Cir. 2001) (concluding that the officers were 

entitled to summary judgment because there was an 

“absence of evidence showing that either officer acted 

purposely to injure” the plaintiff and the officers’ actions did 

not suggest “malice or sadism or otherwise create an 

inference of impermissible motive”).
HOARD V. HARTMAN 19

By instructing the jury that “maliciously and sadistically 

for the very purpose of causing harm” required “having or 

deriving pleasure from extreme cruelty,” the district court 

required Hoard to prove that Officer Hartman acted with a 

subjective state of mind far more demanding than that of 

intent to harm. This was error.

B.

Mere error, however, is insufficient on plain error review 

to support vacatur. “The second prong of the plain error 

analysis requires the error to be plain or obvious.” Draper 

v. Rosario, 836 F.3d 1072, 1085 (9th Cir. 2016) (internal 

quotation marks omitted). In other words, it must have been 

“sufficiently clear at the time of trial” that the district court’s 

supplemental instruction was impermissible. Id. at 1086. 

We agree with Hoard that the district court’s instruction was 

plainly erroneous.

We have made clear time and time again that the “core 

judicial inquiry,” Wilkins, 559 U.S. at 37 (quoting Hudson, 

503 U.S. at 7), in an Eighth Amendment excessive force case 

is whether the defendant officers acted in bad faith with the 

intent to harm the inmate. See, e.g., Rodriguez v. Cty. of Los 

Angeles, 891 F.3d 776, 795 (9th Cir. 2018) (“[T]here was 

abundant evidence presented to the jury that appellants 

inflicted severe injuries on appellees while they were not 

resisting, and even while they were unconscious. A jury 

could reasonably . . . determine that this force was not part 

of a ‘good-faith effort to maintain or restore discipline.’” 

(quoting Hudson, 503 U.S. at 7)); Furnace v. Sullivan, 

705 F.3d 1021, 1030 (9th Cir. 2013) (concluding that

“qualified immunity was inappropriately granted” on the 

plaintiff’s Eighth Amendment excessive force claim because 

the plaintiff had sufficiently alleged facts showing “that a 

significant amount of force was employed without 
20 HOARD V. HARTMAN

significant provocation from [the plaintiff] or warning from 

the officers”); Marquez v. Gutierrez, 322 F.3d 689, 692 (9th 

Cir. 2003) (concluding that “shoot[ing] a passive, unarmed 

inmate standing near a fight between other inmates, none of 

whom was armed, when no inmate was in danger of great 

bodily harm, would inflict unnecessary and wanton pain” in 

violation of the Eighth Amendment); Jeffers, 267 F.3d at 912 

(“The officers’ uncertainty does not suggest malice or 

sadism or otherwise create an inference of impermissible 

motive.”); Robins, 60 F.3d at 1440 (“We advance this 

purpose of the Eighth Amendment [to restrain prison 

officials] by holding prison officials liable so long as they 

have a specific intent to harm.”).

At no point have we required plaintiffs to prove that their 

alleged abusers derived pleasure from acts of extreme 

cruelty in order to prevail on an excessive force claim. The 

reason for this is simple: sadism is not—and has never 

been—an element of excessive force. Just as a district court 

commits plain error “when its jury instructions fail to 

incorporate an element of the crime that has been clearly 

established by Ninth Circuit precedent,” United States v. 

Alferahin, 433 F.3d 1148, 1157 (9th Cir. 2006), so, too, does 

it commit plain error when it adds an obviously non-existent 

element to the plaintiff’s burden of proof.

C.

The third prong of the plain error analysis requires that 

the district court’s plain error have prejudiced the 

complaining party or otherwise affected his or her 

substantial rights. See Draper, 836 F.3d at 1085; see also 

United States v. Olano, 507 U.S. 725, 734 (1993) (“The third 

and final limitation on appellate authority . . . is that the plain 

error affect substantial rights. . . . [I]n most cases it means 

that the error must have been prejudicial: It must have 
HOARD V. HARTMAN 21

affected the outcome of the district court proceedings.” 

(internal alteration and quotation marks omitted)); C.B., 

769 F.3d at 1018 (“[W]e must consider, as we do in the 

criminal context, whether . . . (3) the error affected 

substantial rights.” (citing Olano, 507 U.S. at 732)). We 

conclude that Hoard has satisfied this factor as well.

As a general matter, “[w]hen the trial court erroneously 

adds an extra element to the plaintiff’s burden of proof, it is 

unlikely that the error will be harmless.” Sanders v. City of 

Newport, 657 F.3d 772, 781 (9th Cir. 2011) (internal 

alterations and quotation marks omitted) (quoting Clem v. 

Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009)). We have 

therefore concluded that a district court’s erroneous 

instruction adding an unnecessary element to a plaintiff’s 

burden of proof is not harmless when “it is impossible to 

determine from the jury’s verdict and evidentiary record that 

the jury would have reached the same result had it been 

properly instructed.” Id. at 782–83.

Here, not only is it impossible to determine that the jury 

would have reached the same result, there are signs that the 

jury might very well have returned a different verdict had 

they received the correct instructions on excessive force. 

Four of the jurors paused halfway through an eight-hour 

deliberation to request instructions specifically on the 

meaning of “maliciously and sadistically” acting to cause 

harm. Rather than instruct the jury that these terms 

possessed no unique meaning outside of the specific intent 

to cause harm, the district court informed the jury that they 

had to find Officer Hartman derived pleasure from extreme 

cruelty. Following another four hours of deliberation, the 

jury returned a verdict in favor of Officers Hartman and 

Saldivar, but not without considerable difficulty. Postverdict, one of the jurors expressed to the court his or her 
22 HOARD V. HARTMAN

concern that the reports prepared by the officers were 

“incomplete” and that the jury therefore did not possess “all 

of the information” before returning a verdict. It is entirely 

possible that one of the information gaps that so troubled this 

juror (and potentially others) included the lack of evidence 

as to whether Officer Hartman derived pleasure from 

harming Hoard.

Because the district court’s instruction went to the heart 

of Hoard’s excessive force claim and improperly added to 

his burden of proof, we conclude that Hoard was prejudiced 

by the district court’s erroneous instructions.

D.

Rare is the case where the district court’s errors are so 

grave as to “seriously impair[] the fairness, integrity, or 

public reputation of judicial proceedings.” C.B., 769 F.3d at 

1019 (quoting Diaz-Fonseca, 451 F.3d at 36); see also 

Teixeira v. Town of Coventry ex rel. Przybyla, 882 F.3d 13, 

18 (1st Cir. 2018) (observing that reversals on plain error 

review of jury instructions are “hen’s-teeth rare”). This last 

prong of the plain error analysis is undoubtedly the hardest 

to meet, but we conclude that it has been met.

Officers Hartman and Saldivar received every benefit 

available to state officials in excessive force cases: the 

opportunity to claim qualified immunity, a difficult 

excessive force standard, and an instruction requiring the 

jury to give deference to correctional officials in matters of 

prison administration. See Hudson, 503 U.S. at 16 

(Blackmun, J., concurring) (“Moreover, prison officials are 

entitled to a determination before trial whether they acted in 

an objectively reasonable manner, thereby entitling them to 

a qualified immunity defense.”); Whitley, 475 U.S. at 329 

(Marshall, J., dissenting) (“The Court imposes its heightened 
HOARD V. HARTMAN 23

version of the ‘unnecessary and wanton’ standard only when 

the injury occurred in the course of a ‘disturbance’ that 

‘poses significant risks.’” (internal citation omitted)); 

Norwood v. Vance, 591 F.3d 1062, 1067 (9th Cir. 2010) 

(“We have long recognized that additional instruction 

regarding deference is required in cases applying Whitley to 

allegedly excessive force by prison officials.”). To this, the 

district court added the benefit of its unnecessary and 

improper instruction on sadism. This instruction placed a 

heavy thumb on the scale in favor of the Defendants by 

demanding more from Hoard than the Eighth Amendment 

requires.

Such a high burden of proof deprived Hoard of a 

meaningful and fair opportunity to seek redress for alleged 

violations of his constitutional right to be free from cruel and 

unusual punishment. This was a grave injustice. At its core, 

the Eighth Amendment reflects this country’s “fundamental 

respect for humanity.” Woodson v. North Carolina, 

428 U.S. 280, 304 (1976). That respect is lost when courts 

close the doors to relief by asking plaintiffs to prove that they 

were the victims of not just cruelty, but sadism as well.

We therefore exercise our discretion on plain error 

review to vacate the district court’s judgment and remand for 

a new trial on Hoard’s claims against Officers Hartman and 

Saldivar.11

 11 The gravity of the district court’s error here outweighs the high 

cost of remanding for a new trial, which ordinarily would counsel in 

favor of withholding vacatur. See C.B., 769 F.3d at 1018 (“[W]hen 

reviewing civil jury instructions for plain error, we find it appropriate to 

consider the costs of correcting an error . . . .”). We do not consider this 

a borderline case. We therefore do not consider “the effect that a verdict 

may have on nonparties.” Id.
24 HOARD V. HARTMAN

IV.

Hoard also argues that the district court erred when it 

adopted the magistrate judge’s recommendation and sua 

sponte granted summary judgment on Hoard’s deprivationof-property due process claim. We agree.

Federal Rule of Civil Procedure 56(f) provides that a 

district court may sua sponte grant summary judgment for a 

nonmovant on grounds not raised by a party as long as the 

court has given the adversely impacted party “notice and a 

reasonable time to respond.” Hoard, however, received no 

such notice from either the court or the Defendants. When 

Defendants moved for summary judgment, they addressed 

Hoard’s Fourteenth Amendment claim only as it pertained 

to the prison’s grievance procedures. There was no mention 

of Hoard’s deprivation-of-property due process claim.12

We reject the Defendants’ argument that their blanket 

request for “complete summary judgment on all claims,” 

including Hoard’s “due process claims,” was sufficient to 

give Hoard notice that his property claim was at risk. 

Because pro se plaintiffs—especially pro se prisoner 

plaintiffs—“cannot be expected to anticipate and 

prospectively oppose arguments that an opposing defendant 

does not make,” Greene v. Solano Cty. Jail, 513 F.3d 982, 

990 (9th Cir. 2008), boilerplate language requesting 

summary judgment on all claims does not provide sufficient 

 12 Hoard’s pro se complaint alleged that he was told he wouldn’t 

“get his property” because of “his actions on 12-21-12,” which is when 

the alleged excessive force took place. As the district court correctly 

recognized, this was sufficient to allege a Fourteenth Amendment claim 

based on deprivation of property. See Wolfe v. Strankman, 392 F.3d 358, 

362 (9th Cir. 2004) (“We construe the complaint liberally because it was 

drafted by a pro se plaintiff.”).
HOARD V. HARTMAN 25

notice that an unmentioned claim is at issue on summary 

judgment.

Accordingly, we vacate the district court’s grant of 

summary judgment on Hoard’s deprivation-of-property 

claim and remand for proceedings consistent with this 

opinion.

V.

For the foregoing reasons, we vacate the district court’s 

judgment and remand for a new trial on Hoard’s 42 U.S.C. 

§ 1983 excessive force and deliberate indifference claims 

against Officers Hartman and Saldivar. We also vacate the 

district court’s grant of summary judgment on Hoard’s 

deprivation-of-property claim against Taylor.

Plaintiff-Appellant Hoard shall recover costs on appeal.

VACATED AND REMANDED.