CASE COMMENTS. Constitutional Law Clarifying the Standard of Qualified Immunity in an Eighth Amendment Case Hope v. Pelzer, 536 U.S.

CASE COMMENTS Constitutional Law Clarifying the Standard of Qualified Immunity in an Eighth Amendment Case Hope v. Pelzer, 536 U.S. 730 (2002) Government officials may avail themselves of the qualified immunity defense in constitutional tort actions. 1 The doctrine of qualified immunity evolved to protect the discretionary actions of government officials unless their conduct violates an individual s clearly established constitutional rights. 2 In Hope v. Pelzer, 3 the United States Supreme Court refined the standard of qualified immunity, holding that prison guards were not immune from liability because they should have known that their conduct was unconstitutional under the precedent cases and state regulations. 4 In 1995, Larry Hope, an inmate in an Alabama correctional facility, worked in a chain gang. 5 On two occasions, due to his disruptive behavior at work, the prison guards transported Hope from the work site back to the facility, where they handcuffed him to a hitching post as punishment. 6 Consequently, Hope filed suit in federal district court under 42 U.S.C. 1983, alleging that the prison guards violated his rights under the Eighth Amendment of the United States Constitution. 7 Without deciding whether the punishment violated the 1. See Peggy Ward Corn, Case Comment, Anderson v. Creighton and Qualified Immunity, 50 OHIO ST. L.J. 447, 447 (1989) (introducing and exploring development of doctrine of qualified immunity). 2. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding government officials are not liable if their actions do not violate clearly established rights); see also Corn, supra note 1, at 447-48 (highlighting current formulation of qualified immunity test). 3. 536 U.S. 730 (2002). 4. Id. at 742 (declaring prison guards violated clearly established constitutional right). 5. Hope v. Pelzer, 240 F.3d 975, 977 (11th Cir. 2001) (setting forth facts of case), rev d, 536 U.S. 730 (2002). 6. Hope v. Pelzer, 240 F.3d 975, 977 (11th Cir. 2001), rev d, 536 U.S. 730 (2002). On the first occasion, due to an altercation with another inmate during work, the prison guards cuffed Hope to the hitching post for two hours. Id. While on the post, the guard offered Hope water and a bathroom break every fifteen minutes. Id. As a result of the second incident, when Hope engaged in a physical fight at work with a prison guard, the guards handcuffed him to the hitching post for seven hours. Id. During this period, Hope remained shirtless in the hot sun, with his arms at his head level, and the guards only gave him one or two water breaks and no bathroom breaks. Id. at 978. 7. 536 U.S. at 735 (recounting procedural history of case). The Eighth Amendment of the United States Constitution protects individuals against cruel and unusual punishment by the government. U.S. CONST. amend. VIII. Section 1983 of the United States Code provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects... any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. 42 U.S.C. 1983 (1994).

556 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:555 Eighth Amendment, the district court concluded that the guards were entitled to qualified immunity and entered judgment for the defendants. 8 On appeal, the United States Court of Appeals for the Eleventh Circuit reviewed the alleged Eighth Amendment violation, which the lower court avoided. 9 The court found that handcuffing an inmate to a hitching post for punitive purposes involve[d] the unnecessary and wanton infliction of pain and thus violated the Eighth Amendment. 10 The appeals court, however, affirmed the lower court s decision entitling the prison guards to qualified immunity because case law in the jurisdiction was not sufficiently clear to put them on notice that their conduct was unconstitutional. 11 The United States Supreme Court granted certiorari to review the Eleventh Circuit s qualified immunity decision. 12 The Court briefly assessed the constitutionality issue and agreed that the Eighth Amendment violation was apparent. 13 The Court, however, rejected the Eleventh Circuit s categorical requirement of factual similarity between the precedent cases and the present case for the purpose of establishing qualified immunity. 14 The Court determined that existing case law, relevant state regulations, and inherent cruelty in using the hitching post provided the prison guards with sufficient notice of the unconstitutionality of their conduct and therefore precluded the qualified immunity defense. 15 The doctrine of qualified immunity stems from Congress enactment of 42 U.S.C. 1983, which provides a remedy to individuals when government 8. 536 U.S. at 735. 9. Hope v. Pelzer, 240 F.3d 975, 978-81 (11th Cir. 2001) (reviewing issue of Eighth Amendment violation), rev d, 536 U.S. 730 (2002). 10. Hope v. Pelzer, 240 F.3d 975, 979-80 (11th Cir. 2001) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)) (establishing unconstitutionality of punishment), rev d, 536 U.S. 730 (2002). The court indicated that in situations where an inmate is posing a threat to prison safety, prison officials may temporarily handcuff him to a stationary object while the guards restore order. Id. at 980. Nonetheless, application of force for a period of time that surpasses that necessary to quell a threat or restore order is a violation of the Eighth Amendment. Id. at 980-81. 11. Hope v. Pelzer, 240 F.3d 975, 981-82 (11th Cir. 2001) (granting prison officials qualified immunity), rev d, 536 U.S. 730 (2002). The United States Court of Appeals for the Eleventh Circuit determined that for the law to be clearly established, so as to put a reasonable prison guard on notice that his acts are unconstitutional, the facts in the precedent cases must be materially similar to the facts of the case at issue. Id. at 981 (quoting Suissa v. Fulton County, 74 F.3d 266, 269-70 (11th Cir. 1996)). The court rejected Hope s assertion that Gates v. Collier and Ort v. White established the rule against the use of the hitching post because the facts in those cases were analogous, rather than materially similar, to the present case and thus did not provide a bright-line rule ascertaining constitutional violation. Id. Compare Gates v. Collier, 501 F.2d 1291, 1306 (11th Cir. 1974) (finding violation in prison punishment of handcuffing prisoners to fences and cells for extended periods), with Ort v. White, 813 F.2d 318, 326 (11th Cir. 1987) (holding no violation where punishment involved denial of water to prisoner until he agreed to work). 12. 536 U.S. at 735. 13. Id. at 735-36 (reiterating Eleventh Circuit s analysis of constitutional violation). 14. Id. at 737-38 (rejecting requirement of fundamental similarity to precedent for establishing qualified immunity). 15. Id. at 745-46 (holding prison guards not entitled to qualified immunity defense).

2004] CASE COMMENT 557 officials violate those individuals constitutional rights. 16 Soon after the expansion of 1983 during the 1960s, the Supreme Court recognized that the statute could potentially increase personal liability for federal and state officials, thus undermining the dynamics of governmental operations. 17 As a result, the Court created the doctrine of qualified immunity to preserve the efficiency of the government. 18 In its 1967 decision in Pierson v. Ray, 19 the Supreme Court introduced a method for determining whether a government official is entitled to the defense of qualified immunity. 20 The Court held that if the actions of a government official were reasonable and performed in good faith, the qualified immunity 16. See generally Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972); Pierson v. Ray, 386 U.S. 547 (1967); Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty Years Later, 34 CONN. L. REV. 981, 1006-07 (defining government officials subject to 1983 litigation); John D. Kirby, Note, Qualified Immunity for Civil Rights Violations: Refining the Standard, 75 CORNELL L. REV. 462, 464 (1990) (discussing historical development of qualified immunity doctrine); supra note 7 and accompanying text (setting forth wording of 42 U.S.C. 1983). 17. See Mary A. McKenzie, Note, The Doctrine of Qualified Immunity in Section 1983 Actions: Resolution of the Immunity Issue on Summary Judgment, 25 SUFFOLK U. L. REV. 673, 677-79 (1991). Although Congress enacted the statute in 1871, federal courts decided very few 1983 cases before the 1960s. Id. at 676-77. As a result of the increased number of 1983 cases throughout the 1960s, however, the Supreme Court ultimately interpreted the purpose of the statute as to vindicate federal constitutional and statutory rights through private actions at law. Id. at 677-78; see also Baker v. McCollan, 443 U.S. 137, 144 (1979) (discussing impact and scope of 1983 relating to case); Carey v. Piphus, 435 U.S. 247, 255 (1978) (holding damages available in constitutional violation actions under 1983). Soon thereafter, the Court realized that 1983 can considerably interfere with effective operation of government and began imposing restrictions upon civil rights claimants. See McKenzie, supra, at 679; see also Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (expressing concern over broad liability for government officials which impedes effective government); Wood v. Strickland, 420 U.S. 308, 318 (1975) (recognizing strong public policy reasons to support expansion of qualified immunity); Pierson v. Ray, 386 U.S. 547, 554-57 (1967) (presenting policy reasons for granting qualified immunity to government officials in 1983 claims). 18. See Pierson v. Ray, 386 U.S. 547, 557 (1967) (recognizing defense of qualified immunity available to government officials acting in good faith); see also Scheuer v. Rhodes, 416 U.S. 232, 242 (1974) (justifying qualified immunity based on recognition of possible error in actions of government officials); Kirby, supra note 16, at 470 (explaining necessity of qualified immunity). The defense of qualified immunity is necessary for the government officials to carry out their duties effectively. Kirby, supra note 16, at 470. Without such protection, officials would constantly worry that their good faith actions might inadvertently violate an individual s constitutional rights. Id. Fear of personal liability may prevent officials from performing their duties with the requisite decisiveness, which could lead to a serious public harm. Id. at 470-71. Recognizing that the principle of qualified immunity would involve surrender of some measure of constitutional protection, the Court nonetheless decided that it was an adequate measure to accommodate the competing goals between the statute s legislative purpose and facilitation of effective functioning of government. Id. at 470; see also Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 VA. L. REV. 1, 37 (criticizing qualified immunity as denial of remedy for violation of civil rights). In recent years, courts defined the qualified immunity doctrine quite liberally, granting qualified immunity motions to defendants in approximately eighty percent of the cases. Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV. 845, 852 (discussing recent trends in application of qualified immunity standard). 19. Pierson v. Ray, 386 U.S. 547 (1967). 20. Pierson v. Ray, 386 U.S. 547, 557 (1967) (acknowledging availability of good faith and reasonableness defense for public officials).

558 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:555 doctrine protected such actions. 21 Seven years later, in Scheuer v. Rhodes, 22 the Court enunciated the qualified immunity test, requiring both subjective and objective elements that the Pierson Court implicitly suggested. 23 This standard prevailed until 1982, when the Court discarded the subjective prong of the qualified immunity test in Harlow v. Fitzgerald. 24 The new test focused entirely on the objective conduct of the official and offered protection from liability if the official s conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 25 Although the Harlow test has remained valid, lower courts have struggled with the interpretation of the qualified immunity standard, specifically in determining what constitutes a clearly established law and what a reasonable officer should know. 26 Some circuit courts required a strong 21. Pierson v. Ray, 386 U.S. 547 (1967). In Pierson, police officers arrested several black ministers in a whites only area. Id. at 552-53. The Court held that the police officers were exempt from 1983 liability as long as they reasonably believed in good faith that the arrest was constitutional. Id. at 557. 22. Scheuer v. Rhodes, 416 U.S. 232 (1974). 23. Scheuer v. Rhodes, 416 U.S. 232, 247 (1974) (announcing two prong qualified immunity test). The Scheuer Court held that a government official is entitled to qualified immunity if, in light of the existing circumstances, he had reasonable grounds to believe that his actions were constitutional and he acted in good faith. Id. at 247-48. The Court reasoned that it would be unfair to hold a government official responsible if he/she erroneously, but in good faith, violated one s constitutional rights. Id. at 239-40. 24. Harlow v. Fitzgerald, 457 U.S. 800, 815-17 (1982) (modifying original qualified immunity test). The Court abandoned the subjective prong of the qualified immunity test because it was not in accord with the Court s goal of preventing unsubstantiated claims from going to trial. Id. at 816. The subjective prong requires a court to inquire into the official s state of mind, questions which courts consider to be factual issues for the jury to decide. Id. Judicial inquiry may subject government officials to various burdens of litigation that can be peculiarly disruptive of effective government. Id. at 817; see Elizabeth J. Norman & Jacob E. Daly, Statutory Civil Rights, 53 MERCER L. REV. 1499, 1503-04 (2002) (discussing impact of 1983 actions on federal rules of civil procedure). During the 1970s and early 1980s, the flood of 1983 lawsuits caused some federal courts of appeals, including the Eleventh Circuit, to implement a heightened pleading standard in an attempt to reduce frivolous actions and better protect government officials. Norman & Daly, supra, at 1503. These circuits require a plaintiff, in an action pursuant to 1983, to specifically allege the facts upon which they base their claim. Norman & Daly, supra, at 1504. In 1993, the United States Supreme Court recognized an inconsistency between the heightened pleading standard in 1983 cases and the limited pleading requirements of Federal Rule of Civil Procedure 8(a). Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993) (holding 1983 actions not subject to heightened pleading standard). Nevertheless, some circuits, including the Eleventh Circuit, continue to require the standard in an effort to get rid of non-meritorious claims, thus preserving the efficiency of governmental function. See GJR Invs., Inc., v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998) (emphasizing heightened pleading standard as law and declining to apply Leatherman to 1983 actions); see also Norman & Daly, supra, at 1503-04 (highlighting use of heightened pleading standard in 1983 actions). 25. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court also noted that if, at the time of the incident, the law was clearly established but the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. Id. at 819. 26. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (reiterating qualified immunity standard); see Corn, supra note 1, at 454-55 (exposing ambiguities arising from Harlow Court s qualified immunity test); see also Kamin, supra note 19, at 36 (discussing problems with interpretation of Harlow decision due to elimination of subjective prong of defense). Subsequent to Harlow, the Court attempted to clarify the qualified immunity standard with its decision in Anderson v. Creighton. See generally Anderson v. Creighton, 483 U.S. 635

2004] CASE COMMENT 559 factual similarity to the precedent to find that the law was clearly established. 27 Conversely, other courts ruled that a case precisely on point is not necessary to make such a determination. 28 The Supreme Court s decisions approved of both approaches and thus never solved the ambiguity of the standard required for qualified immunity. 29 The Supreme Court sought to resolve the conflicting rationales with its decision in Hope v. Pelzer. 30 The Court rejected the argument that the precedent cases must be fundamentally similar to the case at issue for the qualified immunity defense to apply and instead adopted the fair warning requirement of United States v. Lanier. 31 The Court concluded that although (1987). In Anderson, the Court decided that neither the general principles of law nor a strong factual similarity between a prior case and the case at issue is an appropriate standard for determining what constitutes a clearly established law. Id. at 639-40. As a result, the Court s ultimate conclusion that in the light of pre-existing law the unlawfulness must be apparent did not offer the clear guidelines the courts needed for determining the clearly established part of the qualified immunity analysis. Id. at 640; see Corn, supra note 1, at 457 (criticizing Anderson for its failure to fully clarify standards of qualified immunity). 27. See, e.g., Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001) (requiring material similarity between case at bar and precedent), rev d, 536 U.S. 730 (2002); Denno v. Sch. Bd. Of Volusia County, 218 F.3d 1267, 1270 (11th Cir. 2000) (requiring 1983 plaintiff to point to case law compelling conclusion of clear constitutional violation); Kalka v. Hawk, 215 F.3d 90, 99 (D.C. Cir. 2000) (granting qualified immunity to prison official due to lack of precedent establishing violation); Kyle K. v. Chapman, 208 F.3d 940, 944-45 (11th Cir. 2000) (establishing violation but allowing qualified immunity based on lack of precedent); Suissa v. Fulton County, 74 F.3d 266, 269-70 (11th Cir. 1996) (requiring facts of precedent cases materially similar to case at issue to determine qualified immunity); Lassiter v. Ala. A&M Univ. Bd. of Trs., 28 F.3d 1146, 1149-50 (11th Cir. 1994) (emphasizing need for concrete precedent, not general rules and abstract rights in qualified immunity cases). 28. See, e.g., Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001) (holding identical correlation of precedent unnecessary to show violation of clearly established constitutional right); Gruenke v. Seip, 225 F.3d 290, 301 (3rd Cir. 2000) (using factually distinct precedent in establishing constitutional violation and denying qualified immunity); Miller v. Kennebec County, 219 F.3d 8, 11 (1st Cir. 2000) (ruling precedent not essential to finding of qualified immunity where official s actions clearly unreasonable); Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir. 2000) (determining where existence of constitutional right obvious, no precedent needed to establish violation). 29. United States v. Lanier, 520 U.S. 259, 269 (1997) (establishing notice of officials unconstitutional conduct in absence of fundamentally similar precedent). The Court in Lanier held that so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights, the factual distinction between the case at hand and the precedent was not an obstacle in denying qualified immunity. Id. Contra Wilson v. Layne, 526 U.S. 603, 616-17 (1999) (establishing qualified immunity due to lack of substantially similar precedent). In granting qualified immunity to the law enforcement officials, the Wilson Court stated that although there were cases somewhat analogous to the present case, they lacked the specificity required to represent a consensus of cases of persuasive authority establishing constitutional violation. Id. at 617. The Court s inconsistent decision-making regarding qualified immunity, as well as the tension between maintenance of an efficient government and the protection of individual rights, resulted in scholarly criticism of the qualified immunity doctrine and proposals for alternative solutions. See, e.g., R. George Wright, Qualified and Civic Immunity in Section 1983 Actions: What Do Justice and Efficiency Require?, 49 SYRACUSE L. REV. 1, 30 (1998) (emphasizing unfairness of qualified immunity doctrine and proposing vicarious liability of governmental entities); Corn, supra note 1, at 464-65 (suggesting separate lawsuit for losing defendant to sue governmental entity for indemnification); Kirby, supra note 16, at 485 (recommending abrogation of qualified immunity doctrine in favor of insurance and indemnification). 30. 536 U.S. at 741 (rejecting requirement of tight factual similarity between precedent and present case). 31. Id. The Court noted that the Lanier decision expressly rejected fundamentally similar requirement

560 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:555 the precedent cases Gates v. Collier and Ort v. White were not fundamentally similar to the facts of the present case, they provided sufficient warning to the prison guards that their conduct crossed the line of what is constitutionally permissible. 32 The Court further noted that the prison guards noncompliance with the regulations of the Alabama Department of Corrections (DOC) pertaining to the use of the hitching post demonstrated that the prison guards were fully aware of the wrongful character of their conduct. 33 Finally, the fact that the United States Department of Justice specifically advised the DOC of the unconstitutionality of the cuffing practice further supported the view that a reasonable official would have realized that his/her actions were unlawful. 34 The Court held that the obvious cruelty inherent in the practice of cuffing inmates to the hitching post, together with the Eleventh Circuit precedent of Gates and Ort and the report from the Department of Justice condemning the practice, provided fair and clear warning, sufficient to bar the defense of qualified immunity. 35 In Hope v. Pelzer, the Court reduced the scope of the qualified immunity defense thereby affording more protection for individual rights at the cost of undermining the efficiency of government operations. 36 Heavily relying on Lanier, the Court broadened the definition of the clearly established prong of the Harlow test by eliminating the necessity of a strong factual similarity and focused on whether prior decisions, despite notable factual distinctions, gave fair warning to the officials that their conduct was unconstitutional. Id.; see supra note 29 and accompanying text (setting forth holding of Lanier). 32. 536 U.S. at 743; see supra note 11 (examining decisions in Gates v. Collier and Ort v. White). The Court reasoned that the ruling in Gates, establishing that cuffing a prisoner to a stationary object violates the Eighth Amendment, gives sufficient notice to a prison guard that cuffing a prisoner to a hitching post is unlawful. 536 U.S. at 742-43. Additionally, one of the premises in Ort was that physical abuse directed at [a] prisoner after he terminate[s] his resistance to authority would constitute an actionable [E]ighth [A]mendment violation. Id. at 743 (quoting Ort v. White, 813 F.2d 318, 324 (1987)). Thus, the fact that the prison guards had subdued Hope before cuffing him to a hitching post should have provided them with a fair warning that their actions were unconstitutional. Id. (citing Ort, 813 F.2d at 318). The Court, however, failed to examine the impact of the recent decisions of the district court in Alabama that did not establish constitutional violation when handcuffing inmates to a hitching post. Id. at 755 (Thomas, J., dissenting); see infra note 41 and accompanying text (arguing recent Alabama decisions do not provide notice of unconstitutionality to prison guards). 33. 536 U.S. at 744. The DOC regulation, while allowing the use of the hitching post, provides that an activity log should be completed for each inmate, detailing his responses to offers of water and bathroom breaks every 15 minutes. Id. Hope s record, however, does not contain such a log for the seven-hour cuffing period, thus indicating that the prison guards did not make the periodic offers as the regulation required. Id. Arguably, the lack of factual specificity in Hope s allegations undermines the contention that the prison guards actually violated the DOC regulation. Id. at 749 (Thomas, J., dissenting); see infra note 40 and accompanying text (observing effect of insufficiency of Hope s pleadings). 34. Id. at 744. Although the Department of Justice informed the DOC that the use of the hitching post constituted improper corporal punishment, the record contained no indication that the prison guards knew of this communication. Id. at 745. 35. Id. at 745-46 (summarizing reasons for preclusion of qualified immunity defense). 36. Id. at 747-48; see supra notes 16, 18 and accompanying text (analyzing pragmatic compromise of qualified immunity doctrine to accommodate both individual rights and effective government).

2004] CASE COMMENT 561 between the precedent and the present case. 37 Based on this newly established definition, the Court accurately concluded that the decisions in Gates and Ort, while factually distinct from the case at issue, provided the prison guards with adequate warning of the unconstitutionality of their conduct and thus precluded the defense of qualified immunity. 38 As Justice Thomas correctly articulated in his dissent, however, the Court overlooked a number of important considerations in its decision. 39 First, the Court failed to recognize that Hope s allegations lacked specificity, weakening the assertion of a violation of Hope s Eighth Amendment rights. 40 Second, in its analysis of whether the law was clearly established at the time of the incident, the Court ignored the recent decisions of the district courts in Alabama that directly dealt with the use of the hitching post and never established the illegality of such practice. 41 Instead, the Court focused on Ort, where the proposition, in dicta, does not even come close to clearly establishing the unconstitutionality of the conduct at issue. 42 Arguably, the Court s reliance on Gates is more on point; however, the breadth of the Gates decision is insufficient to provide clear notice to the prison guards of their unlawful action. 43 Third, the Court s acknowledgment that the DOC authorized the use of the hitching post fails to provide support for its decision. 44 Rather, it favors the 37. 536 U.S. at 741. 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. Id.; see United States v. Lanier, 520 U.S. 259, 269 (establishing notice of unconstitutionality of government officials conduct in absence of fundamentally similar precedent); see also supra note 28 and accompanying text (listing court decisions not requiring substantial similarity to precedent in finding unconstitutional conduct). 38. See supra note 32 and accompanying text (applying decisions in Gates and Ort to present case). 39. 536 U.S. at 748-49. (Thomas, J., dissenting) (pointing out flaws in Court s decision). 40. Id. at 749 (criticizing Court s neglect of imprecise account of facts). For instance, the pleadings are unclear as to which one of the prison guards was involved in, or was responsible for, any of the June 7th events other than attaching Hope to the hitching post. Id. at 749-50. Such lack of factual detail in the pleadings renders the Court s explanation of the Eighth Amendment violation woefully incomplete. Id. at 751; see Norman & Daly, supra note 24 (discussing heightened pleading standard and necessity of factual specificity in adjudication of 1983 claims). 41. 536 U.S. at 754-55 (Thomas, J., dissenting). In a number of cases decided before 1995, Alabama federal district courts rejected claims that handcuffing a prisoner to a hitching post violated the Eighth Amendment. Id. at 756-57. Based on those decisions, a reasonable prison guard would not have known that his conduct was unlawful. Id. at 758. 42. Id. at 761-62 (Thomas, J., dissenting) (disapproving of Court s inappropriate reliance on Ort); see supra note 11 and accompanying text (examining Ort decision in relation to present case). 43. 536 U.S. at 762-63 (Thomas, J., dissenting) (acknowledging relevance of Gates decision and its insufficiency to clearly establish constitutional violation); see supra note 11 and accompanying text (discussing Gates and its application to present case). 44. 536 U.S. at 760 (Thomas, J., dissenting). The DOC expressly authorized prison guards to attach prisoners to a hitching post if they were disruptive to the work squad. Id.; see supra note 33 and accompanying text (listing other regulations of DOC pertaining to use of hitching post). Hope disrupted the work squad with his altercation with another inmate and a guard. 536 U.S. at 760; see supra note 6 and accompanying text (setting forth facts of case).

562 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:555 upholding of the qualified immunity protection. 45 Finally, the Court s recognition that the Department of Justice s disapproval of the practice never reached the prison guards, leads to the conclusion that an ordinary prison guard would not have known that the method of punishment was clearly unconstitutional. 46 The Court, in Hope v. Pelzer, attempted to refine the standard for determining what constitutes a clearly established law. In its decision, the Court overlooked many significant issues present in this particular case; thus, it unjustly denied the prison guards protection from liability. Nevertheless, the Court promulgated a clear rule and achieved its goal of resolving the ambiguity regarding the qualified immunity doctrine. Polina R. Bodner 45. 536 U.S. at 760. The prison guards action of cuffing Hope to a hitching post complied with a duly promulgated state regulation. Id.; see supra notes 33, 40 and accompanying text (indicating insufficiency of Hope s pleadings weaken argument of regulations violation). 46. 536 U.S. at 759-60 (Thomas, J., dissenting) (criticizing Court s inappropriate reliance on report of United States Department of Justice); see supra note 34 and accompanying text (noting no record indicating report of United States Department of Justice reached prison guards).