240 F.3d 975 (11th Cir. 2001)
Larry HOPE, Plaintiff-Appellant,v.Mark PELZER, Gene McClaran, et al., Defendants-Appellees.
No. 00-12150.
United States Court of Appeals,Eleventh Circuit.
Feb. 2, 2001.Feb. 14, 2001.

Appeal from the United States District Court for the Northern District of  Alabama.(No. 96-02968-CV-BU-S), H. Dean Buttram, Jr., Judge.
Before TJOFLAT and BIRCH, Circuit Judges, and VINING*, District Judge.
BIRCH, Circuit Judge:


1
In this case, we decide whether an inmate's Eighth and Fourteenth Amendment  rights were violated when prison guards handcuffed him to a hitching post on two  occasions, one of which lasted for seven hours without regular water or bathroom breaks. The district court granted summary judgment for the defendant prison  guards because they were entitled to qualified immunity. We AFFIRM.

I. BACKGROUND

2
Plaintiff-Appellant Larry Hope was an inmate at Limestone Correctional Facility  ("Limestone") in 1995, where he was assigned to the chain gang. On two  occasions, Hope was transported from the chain gang work site back to Limestone,  where he was cuffed to a hitching post in the yard.


3
On 11 May 1995, Hope was engaged in a verbal altercation with another inmate on  the chain gang. Both men were escorted back to Limestone, where they were cuffed  to the hitching post. Hope was released two hours later, after the guards  captain determined that the altercation was caused by the other inmate. While on  the post, Hope was offered water and a bathroom break every fifteen minutes, and  his responses to these offers were recorded on an activity log. He was examined  by a prison nurse that evening, and showed no signs of injury.


4
On 7 June 1995, Hope was engaged in a physical altercation at the work site with  a prison guard. There is a dispute about who started the fight, but Hope states  that one of the guards started choking him because he fell asleep on the bus en  route to the work site, and therefore did not exit promptly with the other  inmates. Hope was again brought back to Limestone, where he was again cuffed to  the hitching post. This time, Hope was cuffed to the post for seven hours  without a shirt. During this seven hour period, Hope was given water only once  or twice, and was given no bathroom breaks.1 He was examined by the prison  nurse, who noted no injuries. Hope has since been released from prison.


5
Hope brought suit in federal court against eight Limestone guards,2 alleging  that his Eighth3 Amendment rights had been violated, and seeking monetary  damages. The district court ordered the defendants to submit special reports  outlining their knowledge of the incidents Hope described in his complaint. The  court considered these special reports as a motion to dismiss, and granted the  motion on qualified immunity grounds. Hope appeals.

II. DISCUSSION

6
We review a summary judgment appeal de novo, and view all facts in the light  most favorable to the non-moving party. See Wideman v. Wal-Mart Stores, Inc.,  141 F.3d 1453, 1454 (11th Cir.1998).


7
A.Hope's Constitutional Rights Were Violated


8
Alabama Department of Corrections ("DOC") policy calls for inmates to be cuffed  to a hitching post4 to "eliminate the possibility of disruption of the work  squad and to discourage other inmates from exhibiting similar conduct." R1-  11-8.5 Hope argues that his Eighth Amendment right to be free from cruel and  unusual punishment was violated when he was cuffed to the hitching post on 11  May and 7 June 1995 in accordance with this policy. We agree.6


9
The Eighth Amendment prohibits "punishments which are incompatible with 'the  evolving standards of decency that mark the progress of a maturing society' ...  or which 'involve the unnecessary and wanton infliction of pain.' " Estelle v.  Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (citations  omitted). Because Hope was not placed on the hitching post as the result of a  court sentence or sentencing statute, he must prove a subjective violation of  his rights as well as the objective violation of the Eighth Amendment. See  Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 2325, 115 L.Ed.2d 271  (1991).

1.The Subjective Requirement

10
The subjective component of Eighth Amendment jurisprudence requires a showing  that the defendants were wanton in their actions, as opposed to merely  negligent. Id. at 302, 111 S.Ct. at 2326. To overcome this subjective test, Hope  must show that the officials knew that placing him on the hitching post created  a "substantial risk of serious harm and [that they] disregard[ed] that risk by  failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S.  825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994).7 The Court in Farmer  emphasized that the officials need only be aware of the risk of harm, as opposed  to being aware of actual harm. Id. at 842, 114 S.Ct. at 1981.


11
Hope has met the burden of showing that the prison officials were aware that  placing him on the hitching post created a substantial risk of harm, and that  they did nothing to abate that risk. First, "a factfinder may conclude that a  prison official knew of a substantial risk from the very fact that the risk was  obvious." Id. Hope was cuffed standing to a hitching post, with his arms at  approximately head level, in the hot sun for seven hours with no shirt, metal  cuffs, only one or two water breaks, and no bathroom breaks. At one time, prison  guards brought a cooler of water near him, let the prison dogs drink from the  water, and then kicked the cooler over at Hope's feet. This is uncontested  evidence of deliberate indifference to the risk of harm to Hope.


12
Second, in 1994, the Department of Justice ("DOJ") conducted an examination of  the Easterling Correctional Facility in Alabama, and advised the DOC that use of  the hitching post constituted improper corporal punishment and was not an  acceptable use of restraints. Austin, 15 F.Supp.2d at 1249.8 In this report, the  DOJ recommended that the DOC cease use of the hitching post in order to meet  constitutional standards. The DOJ report listed the health and safety risks  associated with the use of the hitching post. The DOC replied to the report,  stating that it had determined that use of the hitching post "is not  unconstitutional and is necessary to preserve prison security and discipline." Id. In response, the DOJ informed the DOC that, "[a]lthough an emergency  situation may warrant drastic action by corrections staff, our experts found  that the 'rail' is being used systematically as an improper punishment for  relatively trivial offenses. Therefore, we have concluded that the use of the  'rail' is without penological justification." Id. at 1249-50. This exchange  between the DOJ and the DOC demonstrates that the DOC was aware of the  substantial risk of harm created by use of the hitching post for prolonged  periods of time. We find that Hope has satisfied the subjective requirement of  the Eighth Amendment test.

2.The Objective Requirement

13
The standard for an objective violation of the Eighth Amendment is whether a  punishment "involve[s] the unnecessary and wanton infliction of pain' ... or  [is] grossly disproportionate to the severity of the crime." Rhodes v. Chapman,  452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citations  omitted). Because there is no clear test for what actions meet this standard,  "the Eighth Amendment 'must draw its meaning from the evolving standards of  decency that mark the progress of a maturing society.' " Id. (citations  omitted). This standard of decency must be balanced, of course, against the  prison officials' need to keep the prison safe. However, an infliction of pain  "without penological justification" is considered to be "unnecessary and  wanton." Id. (citations omitted).


14
Since abolishing the pillory over a century ago, our system of justice has  consistently moved away from forms of punishment similar to hitching posts in  prisons. In Gates v. Collier, 501 F.2d 1291 (5th Cir.1974), in regard to  "handcuffing inmates to the fence and to cells for long periods of time" and  other such punishments, we stated that "[w]e have no difficulty in reaching the  conclusion that these forms of corporal punishment run afoul of the Eighth  Amendment, offend contemporary concepts of decency, human dignity, and precepts  of civilization which we profess to possess." Gates, 501 F.2d at 1306.


15
Hope has met the objective standard of the Eighth Amendment. While on the  hitching post in June, Hope was denied basic human necessities, such as water,  and was even taunted by the guards in the process. While cuffed to the hitching  post, Hope ran the obvious risk of becoming dehydrated or sunburned, injuring  his wrists, or being ridiculed and harassed by other inmates on their way back  from the work site, among other injuries.9 The policy and practice of cuffing an  inmate to a hitching post past the time when he constitutes a threat to himself  or others violates the "broad and idealistic concepts of dignity, civilized  standards, humanity and decency," Estelle, 429 U.S. at 102, 97 S.Ct. at 290  (quotation omitted), embodied in the Eighth Amendment.


16
3.The Policy and Practice are Unconstitutional


17
We find that cuffing an inmate to a hitching post for a period of time extending  past that required to address an immediate danger or threat is a violation of  the Eighth Amendment. This violation is exacerbated by the lack of proper  clothing, water, or bathroom breaks. We do not address the situation where this  punishment or one similar to it is used for a short period of time after a  physical altercation or other serious threat to prison safety to quell a  disturbance and protect the safety of those around him. It is possible that  there could be situations where an inmate would need to be temporarily cuffed to  a stationary object for non-punitive purpose while the guards restored order.  This is not that situation.


18
Our finding today is consistent with our ruling in Ort v. White, 813 F.2d 318  (11th Cir.1987), where a prison official refused to allow inmate Ort to drink  water while on the chain gang until Ort agreed to work. In Ort, we found the  official's action to be constitutional, in part because Ort "essentially had the  keys to the water keg in his own pocket. Whenever he agreed to abide by the  prison rules, he would be given water just like everyone else." Id. at 326.  While the DOC claims that Hope would have been released from the hitching post  had he asked to return to work, the evidence suggests that is not the case. First, Hope never refused to work. During the May incident, he was the victim in  an altercation on the work site, but he never refused to do his job. During the  June incident, Hope was involved in an altercation with prison guards. There is  nothing in the record, however, claiming that he refused to work or encouraged  other inmates to refuse to work. Therefore, it is not clear that the solution to  his hitching post problem was to ask to return to work. Second, Hope was placed  in a car and driven back to Limestone to be cuffed to the hitching post on both  occasions. Given the facts, it is improbable that had Hope said, "I want to go  back to work," a prison guard would have left his post at Limestone to drive  Hope back to the work site. It is more likely that the guards left Hope on the  post until his work detail returned to teach the other inmates a lesson.


19
Herein lies the crux of our finding that the guards' placing Hope on the  hitching post for extended periods of time was unconstitutional: there is no  evidence in the record that Hope posed a continuing threat to prison safety  while being transported from the work site to the prison or once he arrived at  the prison itself. There is no evidence that Hope would have been a continuing  threat had he remained at the work site. In Williams v. Burton, 943 F.2d 1572  (11th Cir.1991) (per curiam), we found that the prison officials did not violate  the Eighth Amendment by using four-point restraints to control an inmate who  "was trying to incite other inmates to join him in a prison disturbance ...  [that] posed a significant security concern." Williams, 943 F.2d at 1575. We  stated, however, that,


20
once restraints are initially justified, it becomes somewhat problematic as to  how long they are necessary to meet the particular exigent circumstances which  precipitated their use. The basic legal principle is that once the necessity  for the application of force ceases, any continued use of harmful force can be  a violation of the Eighth and Fourteenth Amendments, and any abuse directed at  the prisoner after he terminates his resistance to authority is an Eighth  Amendment violation. Id. at 1575-76.


21
This rule was also applied earlier in Ort, where we acknowledged that, "we might  have reached a different decision if later, once back at the prison, officials  had decided to deny appellant water as punishment for his refusal to work." Ort,  813 F.2d at 326.


22
For the above-stated reasons, we find that the policy and practice of cuffing an  inmate to a hitching post or similar stationary object for a period of time that surpasses that necessary to quell a threat or restore order is a violation of  the Eighth Amendment. It is our intention that this holding serve as a  bright-line rule for any future case involving the use of a hitching post by  prison authorities. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct.  1708, 140 L.Ed.2d 1043 (1998) ("[I]f the policy of avoidance [of constitutional  issues] were always followed in favor of ruling on qualified immunity whenever  there was no clearly settled constitutional rule of primary conduct, standards  of official conduct would tend to remain uncertain, to the detriment of both  officials and individuals. An immunity determination, with nothing more,  provides no clear standard, constitutional or nonconstitutional.").


23
B. The Guards Are Entitled to Qualified Immunity


24
Despite the unconstitutionality of the prison practice and, therefore, the  guards' actions, there was no clear, bright-line test established in 1995 that  would survive our circuit's qualified immunity analysis. Therefore, we affirm  the district court's granting summary judgment for the defendants on qualified  immunity grounds.


25
Public officials are entitled to qualified immunity from monetary damages if  "their conduct does not violate clearly established statutory or constitutional  rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457  U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The qualified  immunity test is "one of objective legal reasonableness, without regard to  whether the government official involved acted with subjective good faith."  Swint v. City of Wadley, Ala., 51 F.3d 988, 995 (11th Cir.1995).


26
The law on qualified immunity in our circuit is clear. When analyzing a  qualified immunity defense, "[w]e look to whether a reasonable official could  have believed his or her conduct to be lawful in light of clearly established  law and the information possessed by the official at the time the conduct  occurred." Id. (citations omitted). Thus, "to be 'clearly established,' the  federal law by which the government official's conduct should be evaluated must  be preexisting, obvious and mandatory so that a similarly situated, reasonable  government agent would be on notice that his or her questioned conduct violates  federal law under the circumstances." Hill v. Dekalb Regional Youth Det. Ctr.,  40 F.3d 1176, 1185 (11th Cir.1994).


27
Hope argues that several of our cases, including Gates and Ort, established a  bright-line rule against use of the hitching post. While we recognize that the  inappropriateness of the hitching post could be inferred from these opinions, a  bright-line rule for qualified immunity purposes "is not to be found in  abstractions-to act reasonably, to act with probable cause, and so forth-but in  studying how these abstractions have been applied in concrete circumstances."  Lassiter v. Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1150 (11th  Cir.1994) (citations omitted). It is important to analyze the facts in these  cases, and determine if they are "materially similar" to the facts in the case  in front of us. Suissa v. Fulton County, Ga., 74 F.3d 266, 269-70 (11th  Cir.1996) (per curiam) (citations omitted). Though analogous, the facts in Gates  and Ort are not "materially similar" to Hope's situation. In Ort, the defendant  was refused water while at a work site, until he agreed to do his job of  carrying water to the work site. Ort, 813 F.2d at 326. Gates was an even more  distinct case, as it involved an effort to make substantial changes based on the  unconstitutional "conditions and practices in the maintenance, operation and  administration" of a prison. Gates, 501 F.2d at 1295. We do not find that the  language in Gates, Ort, or any other Eleventh Circuit or Supreme Court opinion  established that impermissible use of the hitching post constitutes cruel and  unusual punishment clearly enough that "a reasonable official would understand  that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635,  640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

III. CONCLUSION

28
The practice of leaving an inmate cuffed to a hitching post when he no longer  presents a threat to himself or those around him is a violation of that  prisoner's Eighth Amendment right to be protected from cruel and unusual  punishment, particularly when he is denied water and bathroom breaks. In 1995,  however, there was no case law in this circuit with facts and legal analysis  clear enough to serve as a bright-line rule establishing this violation, so the  prison guards cannot be held financially responsible for their actions.  Accordingly, we AFFIRM the judgment of the district court.



NOTES:


*
 Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District  of Georgia, sitting by designation.


1
 We note that there is no activity log for this period that Hope spent on the  hitching post, despite the policy that requires such a report. Because there is  no report, Hope's allegations about the lack of water and bathroom breaks are  uncontested.


2
 Hope subsequently moved to dismiss his claims against defendants Ted Loggins, Greg Jackson, Gary McGee, Joseph Stephenson, and James Kent, leaving only Mark  Pelzer, Gene McClaran and Jim/ Keith Gates. In the same motion, he dropped a  claim for excessive force.


3
 Hope argues that he also brought a Fourteenth Amendment due process claim.  However, the district court found that the due process complaint was not signed  and had no evidence of service of process. Therefore, it did not address this  claim, and it is not before us now.


4
 The DOC refers to the hitching post as a "restraining bar" or a "rail." Here, we  will use the term "hitching post," but the holding applies to any similar object  that inmates are cuffed to in the manner described in this opinion.


5
 The written policy, Alabama Administrative Regulation Number 429, is not in the  district court record, and, therefore, we will not address it here.


6
 This section of the opinion will discuss Eighth Amendment jurisprudence as it  applies to Hope's case. For an analysis of the historical background of an  Eighth Amendment claim against the use of a hitching post, see Austin v. Hopper,  15 F.Supp.2d 1210, 1250-66 (M.D.Ala.1998). Because Hope is a member of the  plaintiff class in Austin, that court discusses his allegations in its opinion.  The case before us is a separate action, in that Hope is asking for monetary  damages rather than injunctive relief, but the Austin court's analysis is sound  and directly applicable to our case.


7
 We disagree with the district court in Austin in so far as the opinion applies  the heightened subjective test found in Whitley v. Albers, 475 U.S. 312, 106  S.Ct. 1078, 89 L.Ed.2d 251 (1986), to the subjective element of Hope's claim.  Austin, 15 F.Supp.2d at 1255. The Whitley test applies when officials act "in  haste, under pressure, and frequently without the luxury of a second chance."  Whitley, 475 U.S. at 320, 106 S.Ct. at 1084. Because the officers drove Hope  back to Limestone before placing him on the hitching post, they no longer faced  the type of exigent circumstances required to invoke the Whitley standard. We  note, however, that despite applying the more stringent Whitley standard to  Hope's case, the district court in Austin still found that Hope had met the  subjective component of the Eighth Amendment analysis. Austin, 15 F.Supp.2d at  1265.


8
 Although this DOJ report was not before the district court in Hope's case, we  are taking judicial notice of the report as permitted by Federal Rule of  Evidence 201. See United States v. Rey, 811 F.2d 1453, 1457 n. 5 (11th Cir.1987)  ("A court may take judicial notice of its own records and the records of  inferior courts."); National Fire Ins. Co. of Hartford v. Thompson, 281 U.S.  331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881 (1930) ("We may notice the record of  that case in this court.").


9
 In the words of the district court in Austin, "inmates placed upon the hitching  post suffered extreme pain, anguish, humiliation, mental suffering, and  resulting physical soreness and depression." Austin, 15 F.Supp.2d at 1256.


