               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SEAN COLBY HOARD,                        No. 16-35738
              Plaintiff-Appellant,
                                            D.C. No.
                v.                       2:13-cv-02161-
                                               BR
J. HARTMAN; BROWN, MR.; ORTEGA,
MR.; E. SALDAVAR; JAMES A.
TAYLOR; MARK NOOTH,                        OPINION
             Defendants-Appellees.



     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. Gonzalez-
Aparicio, 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 short-
lived. 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. Post-
verdict, 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 deprivation-
of-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.
