Curtis Stewart v. Anne L. Precythe

United States Court of Appeals
For the Eighth Circuit
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No. 22-3297
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Curtis Stewart
Plaintiff - Appellee
v.
Anne L. Precythe
Defendant - Appellant
Jessieca Wyatt; Stephanie Noisworthy; Cody Stanley; Trevor Proffer; Sergeant
Gordon; Hollie Dysinger; William Pettus
Defendants
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 26, 2023
Filed: January 30, 2024
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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
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SHEPHERD, Circuit Judge.
Curtis Stewart, an inmate in the Missouri correctional system, filed this 42
U.S.C. § 1983 action against various Missouri Department of Corrections (MDOC)

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officials alleging excessive-force and conditions-of-confinement claims. In
response, MDOC Director Anne Precythe filed a motion for judgment on the
pleadings asserting, among other things, that she was entitled to qualified immunity.
The district court denied Precythe’s motion with respect to qualified immunity, and
Precythe filed this interlocutory appeal challenging that decision. Having
jurisdiction under 28 U.S.C. § 1292, we reverse and remand.
I.
Stewart’s claims arise from his treatment as an inmate incarcerated at Eastern
Reception Diagnostic Correction Center in Bonne Terre, Missouri. In his First
Amended Complaint, Stewart alleges that, on May 19, 2017, while housed in
administrative segregation, he was assigned a new cellmate who told him that “[h]e
did not want a cellmate” and that “there was going to be a problem” if he was placed
in the same cell as Stewart. Stewart notified correctional officer Jessieca Wyatt that
he did not feel safe being placed in a cell with this individual and stated that they
were “enemies” to avoid being housed in the same cell together. In response to his
complaint, Wyatt ordered Stewart to place his hands behind his back so she could
handcuff him. After Wyatt secured the handcuffs on Stewart, Stewart told Wyatt
that they were too tight on his wrists and were causing him pain. Wyatt told Stewart
that the correctional policy was that the handcuffs should be placed on the skin, and
then she tightened the cuffs until they dug into his wrists. Wyatt then moved Stewart
from the cell and placed him on a steel bench in the housing unit, keeping Stewart’s
handcuffed hands behind his back, and “shackled [him] to it in a sitting ho[g] tie
stress position for over two hours.” During this two-hour period, Stewart
experienced pain from the handcuffs and his positioning on the bench; however,
Wyatt ignored his complaints and requests for assistance, including Stewart’s
complaint about his buttocks, which he suspected were bleeding. Stewart also
requested to use the restroom but, when Wyatt denied his request, he was forced to
urinate on himself. When Stewart notified another correctional officer, Cody
Stanley, that his handcuffs were too tight and that he was experiencing pain
throughout his body, including his rectum, which he suspected was bleeding, Stanley

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refused to check the handcuffs and stated, “you shouldn’t have checked out of the
cell, then you wouldn’t have to be worr[ied] about the cuffs being too tight.” When
Stewart was removed from the bench, Wyatt noticed that Stewart had blood on the
back of his pants and taunted him by asking him if he needed a menstrual product.
Stewart requested medical care, but Wyatt ignored his request. Instead, Stewart had
to care for himself to stop his rectal bleeding. In addition to the rectal bleeding
Stewart asserts he suffered from, Stewart also alleges that the restraint caused him
to sustain injuries to his wrist, back, and shoulder. Stewart alleges that during the
entire encounter, neither Sergeant Gordon—the correctional officer responsible for
the supervision of the segregation unit—nor any other correctional officer checked
on Stewart or intervened in any manner.
Stewart alleges that a second, similar incident occurred on May 22, 2017,
when his cellmate told correctional officers that he did not feel safe in his cell with
Stewart. Stewart was again removed from the cell, handcuffed, and “placed on the
restraint bench in a sitting hog tie stress position.” Stewart complained of pain to
the correctional officer who had restrained him, Sergeant Trevor Proffer, specifically
identifying pain in his wrist, buttocks, back, legs, and shoulders. His complaints
were ignored, and Stewart was also denied use of a restroom, once more being forced
to urinate on himself. After Stewart’s rectum again started bleeding, he asked
Proffer to see a nurse, but Proffer denied his request, stating, “You’re going to sit
there until your ass look[s] like grilled meat.” A third correctional officer, Stephanie
Noisworthy, ultimately removed Stewart from the bench but denied his second
request to see a nurse.
Stewart thereafter filed this action alleging, as relevant to this appeal,
excessive-force and conditions-of-confinement claims against Precythe in her
official and individual capacities. Stewart alleges that, as the director of the MDOC,
Precythe “promulgated and acquiesced [in] a policy and practice of cruel and
unusual punishment of excessive force by handcuffing and shackling prisoners
confined in administrative segregation units to a steel bench in a sitting hog tied
position for hours,” which “causes unnecessary pain and suffering without

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immediate access to food or water.” Stewart further asserts that Precythe, “at all
relevant times[,] authorized the policy and a practice of excessive use of force
throughout the [MDOC].”
Precythe filed a motion for judgment on the pleadings, asserting that Stewart’s
claims against her were barred by sovereign immunity, respondeat superior, and
qualified immunity. She also asserted that Stewart failed to plead exhaustion of
administrative remedies. The district court granted the motion in part and denied the
motion in part, granting the motion only insofar as Stewart sought monetary
damages for the official capacity claims against Precythe. As relevant here, the
district court denied the motion for qualified immunity, concluding that “Stewart has
sufficiently alleged that Precythe violated a constitutional right that was clearly
established at the time of the alleged violation—the right to be free of excessive use
of force.” Precythe appeals the denial of qualified immunity.
II.
Precythe asserts that the district court erred in denying judgment on the
pleadings based on qualified immunity because she did not violate Stewart’s
constitutional rights by formulating a policy that allowed the use of restraint
benches, and, even if a constitutional violation did occur, it is not clearly established
that such a restraint-bench policy violates an inmate’s constitutional rights. Precythe
further asserts that she was not involved in the conduct that Stewart alleges
constituted cruel and unusual punishment. We review de novo a district court’s
denial of a defendant’s motion for judgment on the pleadings based on qualified
immunity. Martinez v. Sasse, 37 F.4th 506, 508-09 (8th Cir. 2022). “We have
limited jurisdiction over interlocutory appeals involving qualified immunity. We do
not have jurisdiction to resolve factual disputes, but we have jurisdiction to consider
de novo the legal question of whether [an official is] entitled to qualified immunity.”
Baude v. Leyshock, 23 F.4th 1065, 1071 (8th Cir. 2022). To prevail on a motion for
judgment on the pleadings based on qualified immunity, the official “must show [she
is] ‘entitled to qualified immunity “on the face of the complaint.”’” Id. (citation

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omitted). Our review is “limited to the facts alleged in [the] complaint, which we
accept as true and view most favorably to [Stewart].” Id. at 1069.
When a public official asserts qualified immunity as a defense, a plaintiff can
overcome the defense by showing “that [the defendant] violated a constitutional
right, and that the unlawfulness of her conduct was clearly established at the time.”
Martinez, 37 F.4th at 509. To satisfy the clearly established prong, “the law must
be ‘sufficiently clear’ at the time of the officer’s conduct ‘that every reasonable
official would understand that what [s]he is doing is unlawful.’ Clearly established
law must not be defined at a ‘high level of generality’; rather, the ‘violative nature
of particular conduct’ must be clearly established.” Id. (alteration in original)
(citation omitted). “[W]e may conduct this inquiry in any order and resolve this
inquiry on either prong, regardless of the order chosen by the district court.” Brown
v. City of St. Louis, 40 F.4th 895, 899-900 (8th Cir. 2022).
“To state a claim under § 1983, the plaintiff must plead that a government
official has personally violated the plaintiff’s constitutional rights.” Jackson v.
Nixon, 747 F.3d 537, 543 (8th Cir. 2014). “In a § 1983 case an official ‘is only
liable for his . . . own misconduct’ and is not ‘accountable for the misdeeds of [his]
agents’ under a theory such as respondeat superior or supervisor liability.” Nelson
v. Corr. Med. Servs., 583 F.3d 522, 534-35 (8th Cir. 2009) (en banc) (alterations in
original) (citation omitted). Here, Stewart makes no allegations that Precythe was
personally involved in the two incidents where Stewart was restrained. See Appellee
Br. 7-8 (“Appellee concedes that Appellant did not handcuff him, Appellant did not
hog tie him to a bench for no reason, and Appellant did not ignore his pleas.”).
However, “a supervisor may still be liable under § 1983 if either h[er] direct action
or h[er] ‘failure to properly supervise and train the offending employee’ caused the
constitutional violation at issue.” Jackson, 747 F.3d at 543 (citation omitted).
Where, as here, “a supervisor is not involved in day-to-day operations, [her] personal
involvement may be found if [s]he is involved in ‘creating, applying, or interpreting
a policy’ that gives rise to unconstitutional conditions.” Id. (citation omitted).

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“‘After incarceration, only the unnecessary and wanton infliction of pain
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’
What constitutes the ‘unnecessary and wanton infliction of pain’ varies based on the
alleged constitutional violation.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir.
2017) (citation omitted). For an excessive-force claim, “[w]henever prison officials
stand accused of using excessive physical force . . . the core judicial inquiry is . . .
whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Id. (citation omitted). In conducting
this inquiry, we focus on “such factors as the need for the application of force, the
relationship between the need and the amount of force that was used, [and] the extent
of injury inflicted.” Whitley v. Albers, 475 U.S. 312, 321 (1986) (alteration in
original). After considering these factors, we may draw “inferences . . . as to whether
the use of force could plausibly have been thought necessary, or instead evinced such
wantonness with respect to the unjustified infliction of harm as is tantamount to a
knowing willingness that it occur.” Id. Finally, “[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.’” Gutzmer, 866
F.3d at 974 (citation omitted).
In contrast, for a conditions-of-confinement claim, “[t]he Eighth Amendment
standard . . . is whether the defendants acted with deliberate indifference.” Reynolds
v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (citation omitted). “Deliberate
indifference . . . is the equivalent of criminal recklessness: the defendant must 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.’” Hodges v. Minn. Dep’t
of Corr., 61 F.4th 588, 592 (8th Cir. 2023) (citation omitted). We will find deliberate
indifference only where the official “actually knows of the substantial risk and fails
to respond reasonably to it. This standard incorporates ‘due regard for prison
officials’ unenviable task of keeping dangerous men in safe custody under humane
conditions.’” Id. (citation omitted).

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At the outset, we must consider precisely what Stewart’s excessive-force
claim alleges with respect to Precythe. The dissent asserts that Stewart’s complaint
alleges that Precythe authorized a policy and practice of excessive force, which was
applied “without provocation or need to maintain or restore discipline.” See R. Doc.
76, at 6. While Stewart’s complaint indeed contains this quoted language, it is found
within the legal conclusion that the alleged policy or practice “constitutes cruel and
unusual punishment.” R. Doc. 76, at 6. The only other language in the complaint
that could charitably be read as alleging the same is the statement that MDOC
correctional officers used the restraint policy “pretextually as a safety and security
measure.” R. Doc. 76, at 3. Again, this “naked assertion,” which lacks “further
factual enhancement[,] . . . stops short of the line between possibility and plausibility
of ‘entitle[ment] to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(third alteration in original) (citation omitted); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“[T]he pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” (citation omitted)).
The complaint, construed in the light most favorable to Stewart, does not
plausibly allege Precythe authorized a restraint policy permitting jailers to use
excessive force where it was unnecessary or unprovoked. Similarly, the complaint
does not plausibly allege that Precythe acquiesced in any such practice of
unprovoked or unwarranted excessive force because it fails to allege a pattern of
such conduct, instead alleging only two distinct occasions where Stewart was
restrained. See Dean v. Cnty. of Gage, 807 F.3d 931, 940 (8th Cir. 2015) (stating
that, in the context of Monell liability, the question is whether officials with
decision-making authority “affirmatively command[ed]” that conduct occur through
official policy or “acquiesce[d] in a longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local governmental entity”).
The plausible allegations of excessive force are focused entirely on the degree of
force; Stewart alleges that he was subjected to excessive force solely because of the
manner and duration of the restraint he endured.

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Considering only the plausible allegations and taking them as true—that
Precythe “promulgated and acquiesced [in] a policy . . . of . . . handcuffing and
shackling prisoners confined in administrative segregation units to a steel bench in
a sitting hog tied position for hours”—Precythe is entitled to qualified immunity
under either an excessive-force or conditions-of-confinement claim because Stewart
has failed to allege that Precythe committed a constitutional violation. Although
Stewart makes several allegations about the treatment he received from various
correctional officers—ranging from ignoring his requests for help to taunting
Stewart upon realizing he was injured—his complaint alleges that Precythe’s only
personal involvement was the authorization and promulgation of the policy at issue.
Because Precythe “is only liable for [her] . . . own misconduct,” Nelson, 583 F.3d at
534-35 (citation omitted), our review is limited to her conduct in relation to
acquiescing to and promulgating the alleged restraint policy.
This Court has had occasion to consider Eighth Amendment claims in the
context of prisoner restraint, providing parameters for when a specific restraint
amounts to a constitutional violation. In Key v. McKinney, this Court upheld
judgment in favor of correctional officers on a conditions-of-confinement claim
where the plaintiff alleged that, pursuant to facility policy, he had been shackled for
twenty-four hours with routine checks by a nurse and correction officers, concluding
that no Eighth Amendment violation occurred. 176 F.3d 1083, 1085-86 (8th Cir.
1999). Further, in Gutzmer, this Court held that a prison official was entitled to
qualified immunity on an excessive-force claim when he restrained an unruly
prisoner on a restraint board for up to four hours, in compliance with correctional
facility policy, because there was no evidence that the use of the restraint board was
a wanton and unnecessary infliction of pain. 866 F.3d at 977. There, the Court also
remarked that “punishing an inmate ‘to preserve internal order and discipline and to
maintain institutional security’ does not violate the Eighth Amendment unless the
punishment or force used is ‘repugnant to the conscience of mankind.’” Id. at 978
(citation omitted). Further, where this Court has found that correctional officials
were not entitled to qualified immunity, the duration of the restraint differed
markedly from the alleged duration of the restraint here. See Walker v. Bowersox,

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526 F.3d 1186, 1188 (8th Cir. 2008) (per curiam) (concluding that prison officials
were not entitled to qualified immunity after prisoner was restrained on a bench for
twenty-four hours with no access to food, water, or a restroom because triable issues
existed as to whether imposing such conditions was excessive and constituted a
disproportionate use of force).
Considering the foregoing precedent, Stewart’s allegations against Precythe
fall short of demonstrating a constitutional violation. Without additional facts,
Stewart’s allegation that Precythe promulgated a policy of handcuffing and
shackling a prisoner to a bench for a period of hours, coupled with his allegation that
on two occasions he was restrained for over two hours, do not, on their own, violate
the Eighth Amendment. Indeed, the allegations against Precythe regarding the
restraint policy represent the kind of punishment necessary “to preserve internal
order and discipline and to maintain institutional security,” and there are no
allegations that Precythe’s conduct in adopting and promulgating the policy is
“repugnant to the conscience of mankind.” Gutzmer, 866 F.3d at 978 (citation
omitted). Notably, the alleged duration of the restraint here is significantly shorter
than the durations in Key and Gutzmer, and there are no allegations against Precythe
that suggest the restraint policy directed the same kind of conduct that this Court
found precluded qualified immunity in Walker. Stewart’s allegations against the
other defendants, including that he was taunted and denied medical care, food, water,
or restroom breaks, are untethered from his allegations regarding the policy that
Precythe allegedly promulgated. The policy, as defined by Stewart, coupled with
Precythe’s conduct in acquiescing to or promulgating it, does not violate the Eighth
Amendment.
To the extent that Stewart relies on the use of a “hog tie” restraint to
demonstrate that the policy is unconstitutional, see, e.g., Goode v. Baggett, 811 F.
App’x 227, 229, 237 (5th Cir. 2020) (affirming denial of summary judgment on
excessive-force claim based on qualified immunity where officers hog tied
individual—by binding individual’s ankles to his wrist, behind his back, with less
than a foot of separation—in a drug-induced psychosis and placed him in a prone

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position for an extended period of time), we note that Stewart’s complaint alleges
only that he was placed in a “sitting hog tie stress position,” failing to make any
allegations about what precisely this method of restraint entails. Indeed, when
pressed about the definition of “hog tie” at oral argument, Stewart’s counsel offered
a factual description, but conceded that his description of the restraint was contained
nowhere in the complaint. See Oral Arg. at 17:21-18:18 (“I’ll . . . answer the way
hog tie was meant to be used. So, the prisoner’s hands are behind their back. Then
what’s done is they’re handcuffed behind their back, then the handcuffs are placed
on their legs, which are then pulled up more towards the bench, so what it’s doing is
it’s putting stress on their arms, stress on their legs, and then pulling those together
to handcuff to the bench further which is giving this sort of of a pig being hog tied
legs to hands just the bench is the middle ground. . . . I was only adding that factual
description as asked by the Court. I would concede though that the actual definition
or description of sitting hog tied is not contained in the complaint.”).1 Further, other
courts have recognized that “hog tie” does not have a universal definition. See, e.g.,
Cruz v. City of Laramie, 239 F.3d 1183, 1188 (10th Cir. 2001) (“We note that while
sister circuits may characterize the hog-tie restraint somewhat differently, we
understand such to involve the binding of the ankles to the wrists, behind the back,
with 12 inches or less of separation.”).
Although we must view the allegations in Stewart’s favor, without any
additional factual description of the restraint, labeling it a “hog tie” does not make
out a constitutional violation. See Ashcroft, 556 U.S. at 678 (“A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’ Nor [will] ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” (second alteration in original) (citation omitted)); see also Gutierrez
v. City of San Antonio, 139 F.3d 441, 443 (5th Cir. 1998) (considering excessive-
force claim involving use of “hog tie,” which record reflected involved using “a
nylon rope with a loop on one end and a clasp on the other . . . [to] place[e] the loop
1 We are by no means certain that the description supplied by counsel at oral
argument would cure the insufficiency in the complaint’s allegations.

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around [plaintiff’s] feet, and . . . link[] the clasp around the handcuffs, drawing
[plaintiff’s] legs backward at a 90-degree angle in an ‘L’ shape”). There is no record
here on a motion for judgment on the pleadings; instead, we are left only with the
allegation that Stewart was restrained to a bench with his hands and feet behind his
back for a period of two hours on two occasions, which, as described above, does
not amount to a constitutional violation committed by Precythe. Finding no
allegation of a constitutional violation in the complaint, we need not consider
whether the right was clearly established to conclude that Precythe is entitled to
qualified immunity. Kulkay v. Roy, 847 F.3d 637, 642 (8th Cir. 2017) (“Because
an official is entitled to qualified immunity unless both prongs are satisfied, our
analysis will end if either of the two is not met.”). However, even assuming that
Stewart plausibly alleged a constitutional violation, we note that there is no
“controlling authority . . . [or] ‘robust consensus of cases of persuasive authority’”
establishing that the conduct violated the Constitution. Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011) (citation omitted). As described above, our Circuit’s case law has
never held that the use of restraint benches is per se unconstitutional, and it has found
restraint policies involving longer durations than the one at issue here to pass
constitutional muster. In light of the foregoing, we cannot say there is any
controlling authority or a robust consensus of persuasive authority that would satisfy
the clearly established prong. We therefore conclude that the district court erred in
denying qualified immunity to Precythe.
III.
For the foregoing reasons, we reverse and remand for proceedings consistent
with this opinion.
KELLY, Circuit Judge, dissenting.
In his First Amended Complaint, Stewart brought claims of excessive force
against multiple MDOC employees, including Director Precythe. Stewart alleged
that Precythe promulgated a policy that authorized conduct that violated the Eighth

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Amendment. Precythe filed a motion pursuant to Fed. R. Civ. P. 12(c), which the
district court dismissed after finding that she was not entitled to qualified immunity
at the pleadings stage. The district court concluded that Stewart sufficiently alleged
that Precythe authorized a policy and practice of using excessive force at MDOC
and found that Stewart’s right to be free of excessive force was clearly established.
I would affirm that ruling.
“At this early stage of the litigation, to warrant reversal, ‘[Precythe] must
show that [she is] entitled to qualified immunity on the face of the complaint.’” Dadd
v. Anoka Cnty, 827 F.3d 749, 754 (8th Cir. 2016) (quoting Bradford v. Huckabee,
394 F.3d 1012, 1015 (8th Cir. 2005)). Precythe does not meaningfully contest that in
the First Amended Complaint, Stewart alleged (1) that Precythe “authorized the
policy and a practice of excessive use of force,” and (2) that the force used was
excessive because it was “without provocation or need to maintain or restore
discipline.” And the excessive force the policy sanctioned came in the form of
“handcuffing and shackling prisoners confined in administrative segregation units to
a steel bench in a sitting hog-tied position for hours.”
Stewart further alleged that Precythe, as MDOC Director, was “solely
responsible for approving and promulgating these practices of excessive use of
force.” Accepting these facts as true, as we must do at this stage, Stewart sufficiently
alleged Precythe’s involvement in the unconstitutional conduct for purposes of
§ 1983. See Jackson v. Nixon, 747 F.3d 537, 544-45 (8th Cir. 2014) (denying
qualified immunity at the pleadings stage to prison directors, including the director
of MDOC, who were alleged to be personally involved in establishing and
maintaining an allegedly unconstitutional offender treatment program); Bonner v.
Outlaw, 552 F.3d 673, 679 (8th Cir. 2009) (denying qualified immunity at the
pleadings stage to a prison warden who declared “he ha[d] no personal involvement
in” the alleged constitutional violation because “[the prisoner] may be able to
prove,” after discovery, that “[the warden] was personally involved in creating,
applying, or interpreting a[n] [unconstitutional] policy” (citation omitted)); see also
Messimer v. Lockhart, 702 F.2d 729, 732 (8th Cir. 1983) (noting that the Director of

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the Arkansas Department of Correction “may be [held] responsible for his own
failure” to correct an unconstitutional policy when he had the authority to change
the complained-of policies instituted by the warden) .
Stewart also alleged facts about how the policy was carried out against him.
In May 2017, Stewart was in MDOC custody and housed in an administrative
segregation unit. First, on May 19, 2017, Stewart was assigned a cellmate. The
cellmate made it clear that “he did not want a cellmate” and that if Stewart was
placed in the cell with him, “there was going to be a problem.” Stewart notified a
correctional officer that he did not feel safe in the cell. Stewart was then handcuffed,
removed from the cell, and placed on a steel bench where he was shackled in a seated
hog tie2 position for over two hours. Stewart experienced full-body pain, especially
in his shoulders, arms, wrists, legs, back, and ankles. Stewart was not permitted to
use the toilet, and his complaints of “extreme and insufferable pain” were ignored.
When he was released from the bench, he had blood on the back of his pants and
resorted to “plac[ing] toilet paper in his rectum to help stop the bleeding.”
Second, on May 22, 2017, Stewart was given another cellmate. This time, the
cellmate said he did not feel safe. In response, an officer again ordered Stewart to
the restraint bench, where he was placed in the same position as he was three days
prior. Stewart told the officer that he was in pain—feeling it especially in his swollen
wrist, and his buttocks, back, legs, and shoulders—but his complaints “went
unanswered.” He was again denied the use of a toilet, and his “rectum began to
bleed.” He was restrained on the bench for over two hours. Stewart continues to
suffer joint and nerve damage and pain as a result.
Precythe argues that the alleged policy does not violate a clearly established
constitutional right because prisons may lawfully use restraint benches. But Precythe
reads the First Amended Complaint too narrowly. Stewart did not allege that
2 However “hog tie” is defined, a reasonable inference is—at least as the term
is used here—that it describes a method for cuffing and restraining a person in a
painful “stress position.”

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Precythe promulgated a policy regarding the use of restraint benches. He alleged that
Precythe promulgated a policy that authorized the use of excessive force “without
provocation or need to maintain or restore discipline.” Even if the use of restraint
benches is not per se unconstitutional, Precythe does not dispute that use of the
restraint bench is a form of force. Force may be used in a prison setting to “resolve
a disturbance.” Whitley v. Albers, 475 U.S. 312, 320 (1986). But Stewart alleged a
situation where the use of force was not warranted at all. Hudson v. McMillian, 503
U.S. 1, 7 (2002) (“In determining whether the use of force was wanton and
unnecessary, it may also be proper to evaluate the need for application of force, the
relationship between that need and the amount of force used, the threat ‘reasonably
perceived by the responsible officials,’ and ‘any efforts made to temper the severity
of a forceful response.’” (quoting Whitley, 475 U.S. at 321)). There is nothing in the
First Amended Complaint to indicate that Stewart provoked the response of the
correctional officers or that he engaged in conduct that threatened their ability to
maintain or restore discipline. Rather, as alleged, MDOC’s use of force—which
included placement on the restraint bench—was triggered when Stewart or his
assigned cellmate expressed concerns about their cell assignments.
It is clearly established law that the use of force where none is warranted, in a
prison setting, violates the Eighth Amendment. Hickey v. Reeder, 12 F.3d 754, 758
(8th Cir. 1993) (“In this case we find that there was no need for physical force to
compel Hickey to sweep his cell. Hickey was not physically threatening the officers,
nor was the stun gun applied for that reason. The relationship between the need for
force (zero) and the force used (a painful and incapacitating shock) was excessive.
And the pain inflicted was substantial.”); Hudson, 503 U.S. at 6–7 (“[W]henever
prison officials stand accused of using excessive physical force in violation of the
Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.”).
In this case, nothing in the First Amended Complaint suggested that “prison
security and order” were in any way “placed in jeopardy,” so there was no need for

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the use of any force at all, let alone the use of the restraint bench. Hickey, 12 F.3d at
759 (citations omitted); see Walker v. Bowersox, 526 F.3d 1186, 1188 (8th Cir. 2008)
(finding “trialworthy issues as to whether [restraining an inmate on a bench for 24
hours and denying him food or water or access to a toilet] to make him accept a
specific cell mate was an excessive and disproportionate use of force”) (citations
omitted); see also Treats v. Morgan, 308 F.3d 868, 874 (8th Cir. 2002) (concluding
that the plaintiff met his burden of showing a constitutional violation at summary
judgment because, viewing the evidence in the light most favorable to plaintiff,
“there was no objective need for the degree of force used or the pain inflicted [and
defendants] could not reasonably have perceived [the plaintiff] to be a threat to
themselves or institutional security at the time”).
Taking all facts alleged in the First Amended Complaint as true, and drawing
all inferences in his favor, as we must, Stewart has made out a claim against Precythe
in her individual capacity based on her promulgation of a policy authorizing the use
of force where none is required.
I respectfully dissent.
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