Hope v. Pelzer, 536 U.S. 730, 21 (2002)

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Thomas, J., dissenting

appalls the Court.7 And with respect to Lieutenant Gates, petitioner has never alleged that Gates either participated in or was responsible for any of the June 7 events recounted by the Court other than attaching petitioner to the bar. Petitioner has never contended that Gates looked after or otherwise supervised him while he was on the bar. See Second Affidavit of Larry Hope (ND Ala.), Record, Doc. No. 32. Nor has petitioner ever claimed that Gates was responsible for keeping him on the bar for seven hours, removing his shirt,8 denying him water, taunting him about his thirst, or giving water to dogs in petitioner's plain view. See ibid. The relevance of these facts, repeatedly referenced by the Court during the course of its legal analysis, see, e. g., ante, at 738, 744, therefore escapes me.

Then there are the events referenced in the Court's opinion that cannot even arguably be gleaned from the record. For instance, while the Court claims that on June 7 petitioner "was given no bathroom breaks," ante, at 735, during his time on the bar, petitioner has never alleged that Gates or any other prison guard refused him bathroom breaks on that date. See Second Affidavit of Larry Hope, Record, Doc. No. 32. As a matter of fact, the District Court expressly found below that petitioner "was not denied restroom

7 See, e. g., Plaintiff's Special Report and Brief in Response to Defend-ant's Motion for Summary Judgment 1-2, Record, Doc. No. 33 ("[T]he only remaining claims are those against Defendants McClaran, Pelzer, and Gates in connection with the May 11, 1997 hitching post incident, and Defendant Gates in connection with the June 7 hitching post incident"); Second Affidavit of Larry Hope, Record, Doc. No. 32.

8 It is important to note that petitioner has never maintained that Gates placed him on the bar without a shirt. Rather, petitioner's first affidavit, see Affidavit of Larry Hope 2, Record, Doc. No. 1, as well as photographs appended as exhibits to petitioner's second affidavit, see Second Affidavit of Larry Hope, Exhs. 3-5, Record, Doc. No. 32, which were verified by petitioner as "taken while [he] was on the hitching post on June 7," id., at 5, indicate that petitioner's shirt was removed, if at all, after he was attached to the bar.

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