In Hoard v. Hartman, published September 13, 2018, the 9th Circuit found a jury instruction in an inmate's 42 U.S.C. § 1983 case alleging a guard used excessive force against him to be plain error, requiring reversal and retrial even though the plaintiff's counsel failed to object to the instruction. The district court instructed the jury that to succeed on his Eighth Amendment excessive force claim, the plaintiff had to prove the guard acted "maliciously and sadistically for the purpose of causing harm" when he used force. The jury requested a definition for "maliciously and sadistically." The plaintiff's counsel concurred with the court's definition of "maliciously" as "‘having or showing a desire to cause harm to another" and "sadistically" as "having or deriving pleasure from extreme
cruelty." The jury found for the defense.
The 9th CIrcuit held that the court's requirement that the plaintiff find that the guard had a desire to cause harm and derived pleasure was plain error. Although Supreme Court cases have used the terms "maliciously and sadistically," and the 8th Circuit has interpreted this as a requirement for a use of excessive force that violates the Eighth Amendment, the 9th Circuit disagreed and held that the terms were merely rhetorical devices for conveying that the claim required a showing of specific intent to harm.
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