ERNEST PORTER, Appellant v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JOHN E. WETZEL, Secretary for Department of Corrections; ROBERT GILMORE; Super. for SCI Greene
No. 18-3505
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Opinion Filed: September 1, 2020
Before: GREENAWAY, JR., PORTER and COWEN, Circuit Judges.
PRECEDENTIAL; Argued October 22, 2019
Bret Grote [Argued]
Abolitionist Law Center
P.O. Box 8654
Pittsburgh, PA 15221
Daniel M. Greenfield
Roderick & Solange MacArthur Justice Center/Northwestern Pritzker School of Law
375 East Chicago Ave.
Chicago, IL 60611
Counsel for Appellant
Michael P. Doss
Sidley Austin LLP
One South Dearborn St.
Chicago, IL 60603
Counsel for Amicus Appellant
Laura Rovner
Student Law Office – Civil Rights Clinic University of Denver College of Law
2255 E. Evans Ave., Suite 335
Denver, CO 80208
Counsel for Amicus Appellant
Daniel B. Mullen [Argued]
Kemal Alexander Mericli
Office of Attorney General
1251 Waterfront Place, Mezzanine Level
Pittsburgh, PA 1522
Counsel for Appellees
GREENAWAY, JR., Circuit Judge.
In this case, we must decide whether our 2017 decision in Williams v. Secretary Pennsylvania Department of Corrections, 848 F.3d 549 (3d Cir. 2017), applies not only to death row inmates who have been granted vacatur, but also to death row inmates whose vacatur orders have been stayed pending appeal pursuant to local district court rules. In other words, we must determine whether the fact that a Pennsylvania state inmate received habeas relief in federal court, and is thereby subject to local rules, means that that inmate does not have a procedural due process right in avoiding continued indefinite solitary confinement. We decide that Williams governs this case and now hold that the existence of a stay does not extinguish procedural due process rights.
We are also asked to decide whether thirty-three years of solitary confinement may violate the Eighth Amendment. We answer this question in the affirmative. We acknowledge, as we must, that the claimed Eighth Amendment right here has not been clearly established. Further, we hold that representatives of the Pennsylvania Department of Corrections are entitled to qualified immunity on the Eighth Amendment claim. We will therefore reverse and remand in part and affirm in part.
I. BACKGROUND
A. Procedural Background
Plaintiff-Appellant Ernest Porter was convicted of murder in the first degree and sentenced to death in the Philadelphia County Court of Common Pleas in 1986. Since then, he has been incarcerated in the Pennsylvania Capital Case Unit (“the CCU“). He is currently housed at SCI Greene.
After his conviction and sentence were affirmed on direct appeal, Porter filed a Pennsylvania Post Conviction Relief Act (“PCRA“) petition in state court. It was denied. But on June 26, 2003, a federal district court in the Eastern District of Pennsylvania granted, in part, Porter‘s
Both Porter and the Commonwealth appealed to the Third Circuit, and the District Court‘s order was stayed. On February 7, 2007, we granted Porter‘s motion to temporarily hold the appeals in abeyance while the Pennsylvania courts adjudicate another PCRA petition that Porter has filed. We ordered the parties to file periodic status reports every sixty days. Because the Pennsylvania courts have not resolved that petition, the Third Circuit appeals remain in abeyance. The parties last filed a status report on June 30, 2020. Porter v. Horn et al., ECF No. 03-9006 (3d Cir. June 30, 2020).
Defendants filed a motion for summary judgment and Porter filed a partial motion for summary judgment. The Magistrate Judge granted Defendants’ motion.1 The Magistrate Judge decided that: 1) Williams does not give Porter a procedural due process interest in avoiding solitary confinement because Porter‘s death sentence remains active; 2) Porter has not offered evidence of actual injury or
Defendants’ deliberate indifference so he cannot succeed on an Eighth Amendment claim; and 3) Porter cannot make a substantive due process claim based on the same allegations at issue in his Eighth Amendment claim. The Magistrate Judge did not reach the merits of Defendants’ qualified immunity defense.
B. Factual Background
Porter has been in solitary confinement on death row for more than thirty-three years. The Magistrate Judge summarized the conditions that Porter is subjected to daily as follows:
Cells in the CCU are no larger than 7 feet by 12 feet, and are closed with a door that has two narrow vertical windows, measuring 5 ½ inches wide and 36 inches long. The permanent fixtures in Porter‘s cell include a metal bed with a plastic mattress, a sink, toilet and desk.
As a CCU inmate, Porter spends the overwhelming majority of his time in his cell, including eating his meals alone. Porter is permitted to leave his cell for ten hours per week, two hours per day Monday through Friday. This includes time for basic hygiene, three showers per week, and for work duty. In addition, Porter is permitted to exercise in the open air five days per week. CCU exercise cages are no more than twice the size of a typical CCU cell, and one or two men are placed in an exercise area at the same time. Porter is permitted one non-contact
personal visit per week, and three telephone calls per week. In addition, unless Porter specifically requests a mental health appointment, any medical or mental health consultations take place through his cell door, within listening range of prisoners in the surrounding cells.
On the occasions when Porter is permitted to leave his cell, he must undergo a visual strip search, and is handcuffed from behind, or handcuffed in front using a belt and tether. Job assignments are limited to janitorial duties on the CCU block, and performed in confined small spaces under close observation and monitoring. CCU prisoners are permitted in-cell study, using personal workbooks and reading material, but are otherwise precluded from participation in adult basic education courses, vocational learning opportunities or the chance to work towards a high school diploma. In addition, Porter is not permitted to attend religious services with the general population, but may receive a daily visit from a religious leader, for
discussions through the narrow windows of his door.
Porter v. Penn. Dep‘t of Corrs., 2018 WL 5846747, at *3–4 (W.D. Pa. Nov. 8, 2018) (internal record citations omitted). The parties agree that Porter has been subjected to these conditions throughout his confinement. It is also uncontested that Porter has not received any disciplinary infractions during his incarceration. However, the parties agree that he is unable
to challenge his placement in solitary confinement or to earn any additional privileges.
In his Complaint, Porter alleged that his solitary confinement has caused “irreversible damage” to his mental health. JA 41. More specifically, he alleged that the effects of his solitary confinement include “severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication.” JA 41.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over Porter‘s
III. DISCUSSION
Porter argues that his thirty-three year incarceration in solitary confinement violates his procedural due process, Eighth Amendment, and substantive due process rights. He has brought suit under
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parrat v. Taylor, 451 U.S. 527, 535 (1981)). Defendants argue that they have not violated Porter‘s constitutional rights and that they are entitled to qualified immunity because the rights at issue were not clearly established.
Because we are mindful that “it is often appropriate and beneficial to define the scope of a constitutional right” to “promote[] the development of constitutional precedent” before deciding whether the right was clearly established, we will begin by evaluating whether Defendants have violated Porter‘s constitutional rights. Williams, 848 F.3d at 558 (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
A. Procedural Due Process
Porter first argues that, according to our precedent in Williams, Defendants have violated his procedural due process rights by keeping him in solitary confinement for thirty-three years without any regular, individualized determination that he needs to be in solitary confinement, even though he has been granted a resentencing hearing. We agree.
“The Fourteenth Amendment‘s Due Process Clause protects persons against deprivations of life, liberty, or property . . . . A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (internal
a showing that the alleged liberty interest is substantial. To rise to the level of a liberty interest, the right alleged must confer ‘freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.‘” Williams, 848 F.3d at 559 (quoting Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997)) (alteration and emphasis in original).
Williams governs Porter‘s procedural due process claim. In Williams, we held that inmates who have been granted resentencing hearings have a due process liberty interest in avoiding indefinite detention in solitary confinement. Id. at 559–65. Given the scientific consensus on the severe detrimental impacts of prolonged solitary confinement, we decided that the plaintiffs’ indefinite placements on death row constituted extreme deprivation and that these conditions were atypical in comparison with conditions in the general prison population. Id. We held that the employees of the Pennsylvania Department of Corrections (the “DOC“) had violated the plaintiffs’ procedural due process rights by keeping them in solitary confinement after their death sentences were vacated without any individualized determinations that would justify such extreme deprivations.2 Id.
The plaintiffs in Williams were, like Porter, originally sentenced to death in Pennsylvania state court. They were granted vacatur of their death sentences and resentencing hearings on PCRA review. However, the Pennsylvania courts denied their challenges to their underlying convictions. The plaintiffs appealed those denials. Their resentencing hearings were delayed while these appeals were pending. Because there was a possibility that they could be resentenced to death, the DOC kept the Williams plaintiffs in the CCU. This decision to maintain their solitary confinement pending resentencing was the basis for their procedural due process challenge.
Here, we are tasked with applying Williams. Porter‘s circumstances are analogous to those of the Williams plaintiffs. He too received a resentencing hearing in post-conviction review. Like the Williams plaintiffs, he appealed the district court‘s denial of relief on his guilt-phase habeas claims. His resentencing has similarly been delayed pending resolution of the appeals. Moreover, he has spent significantly more time in solitary confinement than the Williams plaintiffs. He has spent thirty-three years total in the CCU, sixteen of which were after he was granted relief in the habeas proceedings.
We are mindful that there are some distinctions between the Williams plaintiffs and Porter. In the view of Defendants, the most significant difference is that the Commonwealth appealed the District Court‘s vacatur order; it did not do so in the cases of the Williams plaintiffs. In addition, since Porter today. Porter does not have an “active and viable” death sentence; like the Williams plaintiffs, he has been granted vacatur and a resentencing hearing but is languishing in solitary confinement while other litigation is pending. Id.
was granted habeas relief in federal court (rather than through PCRA proceedings in state court), an
But we do not think that these differences distinguish Porter for the purposes of his procedural due process rights. In Williams, we specifically held that the procedural due process right attaches for death row inmates whose sentences have been “vacated,” which we defined as “situations where a defendant has initially been sentenced to death, but has subsequently been granted a new sentencing hearing.” Id. at 553 n.4. This describes Porter‘s circumstances precisely: like the Williams plaintiffs, Porter was initially sentenced to death, but he has been granted a new sentencing hearing.
We are unconvinced by the Magistrate Judge‘s reliance on the Supreme Court‘s articulation of the legal impact of a stay in Nken v. Holder, 556 U.S. 418 (2009). In Nken, an immigration case, the Court held that traditional stay factors govern a court of appeals’ authority to stay an alien‘s removal pending judicial review. Explaining the distinction between a stay and an injunction, the Court stated that “[a] stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.” Id. at 421. A stay pending appeal “temporarily suspend[s] the source of the authority to act—the order or judgment in question” and “suspend[s] judicial alteration of the status quo.” Id. at 428–29.3
That the order granting Porter vacatur and a resentencing hearing is stayed does not mean that the order has no legal import or that Porter currently has a viable death sentence. Porter, like the Williams plaintiffs, is in limbo: he may not be resentenced until his appeals are resolved.
Nor are we convinced by Defendants’ argument that the Commonwealth‘s appeal meaningfully distinguishes Porter‘s case. Pursuant to the EDPA Local Rule and the District Court‘s order, the vacatur and resentencing order would have been stayed if either party appealed. In other words, if the Commonwealth had decided not to appeal (as it did for the Williams plaintiffs) but Porter decided to appeal his guilt-phase claims, the order would still have been stayed. The Commonwealth‘s appeal did not result in the stay of the vacatur order, and Defendants have not offered any other reason why the Commonwealth‘s appeal meaningfully differentiates Porter‘s case from Williams.
We do not see any other relevant distinguishing features. In both cases, the plaintiffs could end up with an active death sentence. The Williams plaintiffs could have been resentenced to death in their resentencing hearings, at which point the DOC would have returned them to the CCU. Indeed, actually vacated.” Dissenting Op. at 5. Not so. The stay certainly has legal effect: as a result of the stay, Porter cannot be resentenced. But the stay does not mean that Porter, for purposes of his procedural due process rights, is identical to other death row inmates who have never received any relief and have no imminent prospect of resentencing. Like the Williams plaintiffs, Porter has received relief—that relief is simply stayed pending appeal.
as described above, this was the Department‘s argument for keeping the Williams plaintiffs on death row: the Department argued that it was not permitted to remove the plaintiffs from death row until their death sentences had “actually been modified,” which they had not, since it was possible that they would again receive the death penalty in their resentencing hearing. 949 F.3d at 557. We rejected
Nor can the difference be that Porter‘s resentencing has been delayed while other litigation in his case remains pending, for that was also true of the Williams plaintiffs. Their resentencing hearings were delayed six and eight years respectively during their appeals. The Commonwealth is presented with the same prolonged uncertainty about Porter‘s ultimate sentence that it experienced with the Williams plaintiffs. Nevertheless, extended delays and the attendant uncertainty do not justify Porter‘s continued solitary confinement without review.
Nor have Defendants identified any penological need for solitary confinement for Porter or inmates in Porter‘s position that do not apply to the Williams plaintiffs. In particular, the Commonwealth‘s stated interest in keeping inmates with death sentences in solitary confinement because they pose an increased safety risk is as applicable to the Williams plaintiffs as to Porter. These inmates may or may not end up back on death row after resentencing and/or disposition of their appeals. If the possibility of death row means that they
have “nothing left to lose” and are therefore more dangerous, that concern was as true of the Williams plaintiffs. On the flip side, Porter is as likely as the Williams plaintiffs to be on good behavior since he could be resentenced to a lesser penalty.
Finally, to the extent that Defendants contend that Porter is responsible for the delays in his resentencing, we squarely rejected such an argument in Williams. There too the Commonwealth argued that, by filing their appeals, the plaintiffs were responsible for their continued incarceration on death row. We found this argument “both meritless and disappointing. Plaintiffs’ exercise of their rights to appellate review is simply irrelevant to our assessment of the constitutionality of their conditions of confinement.” Williams, 848 F.3d at 561 n.2. The same reasoning applies to Porter‘s decision to exercise his state PCRA rights in state court. Porter‘s exercise of his rights (and the Commonwealth‘s exercise of its right to appeal) do not bear on our procedural due process analysis.
Our decision is thus a straightforward application of Williams. As in Williams, Defendants must provide Porter with “regular and meaningful review of [his] continued placement on death row,” including “a statement of reasons for the continued placement,” “meaningful opportunity to respond to the reasons provided,” and a hearing. Williams, 848 F.3d at 576 (emphasis omitted).4
Williams squarely governs Porter‘s case, we will not reach this argument.
B. Eighth Amendment
Porter also argues that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to solitary confinement for thirty-three years. Notably, Porter is not making a broader claim that the conditions for all death row inmates violate the Eighth Amendment; he makes only an as-applied challenge based on his own conditions of confinement.5
evidence of his “alleged mental decomposition” or that “either of the Defendants were aware that the care afforded or available was insufficient so as to place Porter at risk of further decline.” Id. We disagree.
To determine whether prison officials have violated the Eighth Amendment, we apply a two-prong test: (1) the deprivation must be “objectively, sufficiently serious; a prison official‘s act or omission must result in the denial of the minimal civilized measure of life‘s necessities“; and (2) the prison official must have been “deliberate[ly] indifferen[t] to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations and quotation marks omitted). An official is deliberately indifferent if he “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. Whether conditions constitute “cruel and unusual punishment” is measured against “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
1. Whether Porter‘s Deprivations Were Sufficiently Serious
To satisfy the objective prong of this test “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting Farmer, 511 U.S. at 834). “The proof necessary to show that there was a substantial risk of harm is less demanding than the proof needed to show that there was a probable risk of harm.” Chavarriaga v. N.J. Dep‘t of Corrs., 806 F.3d 210, 227 (3d Cir. 2015).
The Magistrate Judge did not apply the correct standard here. The Magistrate Judge decided that Porter failed to satisfy the objective prong in part because he did not offer evidence that he had experienced an actual injury. See Porter, 2018 WL 5846747, at *14 (“[N]owhere in the record before this Court has Porter provided any evidence whatsoever of his alleged mental decomposition.“). But an inmate need not provide evidence of actual injury. We have specifically held that the inmate need only offer evidence that there was a “substantial risk of serious harm.” Mammana, 934 F.3d at 373.
It is well established in both case law and scientific and medical research that prolonged solitary confinement, like that experienced by Porter, poses a substantial risk of serious psychological and physical harm:
A comprehensive meta-analysis of the existing literature on solitary confinement within and beyond the criminal
justice setting found that “[t]he empirical record compels an unmistakable conclusion: this experience is psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term . . . damage.” Specifically, based on an examination of a representative sample of sensory deprivation studies, the researchers found that virtually everyone exposed to such conditions is affected in some way. They further explained that “[t]here is not a single study of solitary confinement wherein non-voluntary confinement that lasted for longer than 10 days failed to result in negative
psychological effects.” And as another researcher elaborated, “all [individuals subjected to solitary confinement] will . . . experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, and difficulty tolerating external stimuli.”
Anxiety and panic are common side effects. Depression, post-traumatic stress disorder, psychosis, hallucinations, paranoia, claustrophobia, and suicidal ideation are also frequent results. Additional studies included in the aforementioned meta-analysis further “underscored the importance of social contact for the creation and maintenance of ‘self.‘” In other words, in the absence of interaction with others, an individual‘s very identity is at risk of disintegration.
. . .
As if psychological damage was not enough, the impact of the deprivation does not always stop there. Physical harm can also result. Studies have documented high rates of suicide and self-mutilation amongst inmates who have been subjected to solitary confinement. These behaviors are believed to be maladaptive mechanisms for dealing with the psychological suffering that comes from isolation. In addition, the lack of opportunity for free movement is associated with more general physical
deterioration. The constellations of symptoms include dangerous weight loss, hypertension, and heart abnormalities, as well as the aggravation of pre-existing medical problems.
Williams, 848 F.3d at 566–68 (internal citations omitted) (alterations in original); see also Brief of Amici Curiae Professors and Practitioners of Psychiatry, Psychology, and Medicine at 1 (“[S]olitary confinement causes substantial harm to prisoners’ mental and physical health. For prisoners subject to extreme lengths of solitary confinement, such as Appellant Porter here, such harm is inevitable.“).
We have repeatedly recognized the severe effects of prolonged solitary confinement, as have our sister circuits and Justices of the Supreme Court. See Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (noting that a special assistant to the Secretary of the Pennsylvania DOC would be concerned about the psychological damage to an inmate after only 90 days of solitary confinement); Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (acknowledging the “robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement“); Porter v. Clarke, 923 F.3d 348, 355–56 (4th Cir. 2019) (holding that conditions on Virginia‘s death row violated the Eighth Amendment and noting that “[i]n recent years, advances in our understanding of psychology and new empirical methods have allowed researchers to characterize and quantify the nature and severity of the adverse psychological effects attributable to prolonged placement of inmates in isolated conditions“); Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) (“[R]esearch still confirms what this Court suggested over a century ago: Years
Porter has also provided competent evidence that he has, in fact, experienced severe detrimental effects from his prolonged solitary confinement. In his sworn complaint, he stated that “the effects suffered from long-time solitary confinement, include, but are not limited to: severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication.” JA 41. We “consider as affidavits [Plaintiff‘s] sworn verified complaints, to the extent that they are based upon personal knowledge and set out facts that would be admissible in evidence.” Revock v. Cowpet Bay W. Condo. Ass‘n, 853 F.3d 96, 100 n.1 (3d Cir. 2017) (citing
Defendants’ arguments to the contrary are unavailing. Defendants rely primarily on our decision in Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) to argue that Porter‘s solitary confinement does not give rise to an Eighth Amendment violation. In Peterkin, 855 F.2d at 1022, we held that a class of fifteen prisoners on death row in Pennsylvania “ha[d] not established that the totality of the conditions of their confinement constitutes cruel and unusual punishment.” Id. at 1022. Defendants argue that Peterkin controls this case.
We disagree. Although many of the current conditions in the CCU are the same as or similar to those at issue in Peterkin,7 there are key differences between the cases. First, Porter is making an as-applied Eighth Amendment challenge to his specific conditions of confinement; in contrast, Peterkin was a class action making a facial challenge to death row conditions generally. Our decision in Porter‘s case
Second, Porter has spent substantially more time in solitary confinement on death row than the Peterkin plaintiffs. The maximum amount of time that any of the Peterkin plaintiffs had spent on death row at the time of the lawsuit was four years. Id. at 1029 (“The district court found that some of the prisoners had already been on death row for four years.“). Porter‘s duration of confinement is more than eight times as long. Given the consensus in the research and caselaw that prolonged solitary confinement is highly detrimental to an inmate‘s physical and mental health, that Porter has been in isolation for more than three decades sharply distinguishes the Eighth Amendment calculus here.
Third, and finally, the research and caselaw have advanced considerably since we decided Peterkin in 1988. See, e.g., Porter, 923 F.3d at 358-59 (clarifying that Porter does not overrule past precedent because it was decided on a different set of facts, including that the plaintiffs in Porter introduced expert reports detailing the risks of solitary confinement with studies that are more recent than those that were available in the prior case).
Because of these differences, Peterkin is not controlling here. Porter has been subjected to more than thirty-three years in solitary confinement. That extreme duration of solitary confinement has had severe detrimental impacts on Porter, impacts that track the robust and growing scientific and legal understanding of the harms of prolonged solitary confinement. Viewing Porter‘s deprivations according to “contemporary standards of decency,” Estelle, 429 U.S. at 103, Porter has certainly provided enough evidence to survive summary judgment.
2. Whether Defendants Knew of and Disregarded the Risk to Porter
To satisfy the subjective prong of the Eighth Amendment test, an inmate must show that the prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Chavarriaga, 806 F.3d at 229 (quoting Farmer, 511 U.S. at 847) (quotation marks omitted). The inmate “may demonstrate deliberate indifference by showing that the risk of harm was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past such that defendants must have known about the risk.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir. 2010) (quoting Farmer, 511 U.S. at 842-43) (internal quotation marks omitted).9
Defendants have acknowledged the risks of prolonged solitary confinement. In a past case, Defendant Wetzel conceded that long-term solitary confinement poses serious risks: “Secretary Wetzel agreed that ‘long term’ solitary confinement ‘certainly could’ have negative effects on mental health and that Johnson‘s thirty-six year confinement is ‘certainly’ considered long term. . . . Moreover, Secretary Wetzel stated that he is familiar with the work of Dr. Haney, which sets forth at length the harmful effects of solitary confinement.” Johnson v. Wetzel, 209 F. Supp. 3d 766, 779 (M.D. Pa. 2016) (internal citation omitted). The record also reflects that Defendant Gilmore was aware that Porter had been in solitary confinement for more than three decades and was experiencing mental health problems: following our decision in Williams, Porter submitted a grievance and multiple appeals to the DOC, including to Defendant Gilmore. Moreover, the DOC‘s representative in this case, Steven Glunt, testified in his deposition about “potential decomposition” that affects death row inmates as a result of prolonged solitary confinement:
[I]f you put [capital case inmates] in an environment where there‘s not an opportunity to be interactive, stimulate their thought processes, to grow . . . they start to decompensate. And then that increases their risk of self harm. That increases their risk of hurting others. . . . [Decompensate means] a person who is either emotional, physically, or mentally starting to withdraw, and they‘re starting to reduce their interaction with others. They‘re starting to literally, from an emotional and intellectual standpoint, shut down.
JA 199-200.
Furthermore, the substantial risks of prolonged solitary confinement are “obvious,” “longstanding, pervasive, well-documented, [and] expressly noted by prison officials in the past.” Farmer, 511 U.S. at 842 (holding that a factfinder
Finally, that DOC policies specifically recognize the mental health risks posed by solitary confinement supports Porter‘s argument that Defendants were deliberately indifferent. In the section on administrative custody (“AC“), the policies state: “If the inmate has a mental illness, the PRC [Program Review Committee] should explore the feasibility of placing him/her into [other treatment units] as an alternative . . . .” JA 101. “A qualified psychologist or psychiatrist shall personally interview and conduct an assessment of any inmate remaining in AC status for more than 30 calendar days. If the inmate‘s confinement continues for more than 30 calendar days, a mental health assessment shall be completed at least every 90 calendar days.” JA 106 (emphases omitted). As Glunt describes, staff working in the CCU are trained with “more advanced mental-health observation,” including how to recognize symptoms of decompensation. JA 223. The DOC has thus openly recognized the substantial risk of serious mental harm that prolonged solitary confinement poses.11
In evaluating the subjective prong of the Eighth Amendment test, we may also consider whether officials “had a legitimate penological purpose” behind their conduct. Ricks v. Shover, 891 F.3d 468, 475 (3d Cir. 2018); see also Wood v. Beauclair, 692 F.3d 1041, 1050 (9th Cir. 2012). The Eighth Amendment prohibits punishments without penological justification. See Hope v. Pelzer, 536 U.S. 730, 737 (2002). As a defense to Porter‘s Eighth Amendment claim, Defendants argue that they have a legitimate penological justification for keeping him in indefinite solitary confinement. Specifically, Defendants argue that they keep inmates like Porter in solitary because capital inmates have “nothing left to lose.” Answering Br. 27. However, Defendants have not offered any evidence about the risk that Porter specifically poses, or any individualized argument about Porter at all. Moreover, the DOC witness acknowledged
In conclusion, we hold that a reasonable jury could find that Defendants know that prolonged solitary confinement has serious detrimental health impacts, but that they have disregarded the risk in Porter‘s case by leaving him in isolation for more than thirty-three years.12
C. Substantive Due Process
Porter also argues that Defendants have violated his substantive due process rights under the Fourteenth Amendment. We hold that Porter‘s substantive due process claim is barred under the more-specific-provision rule and affirm the District Court‘s grant of summary judgment on this claim.
The substantive component of the Due Process Clause “protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir. 2016) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992)). “[T]he substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that ‘shocks the conscience.‘” Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (citation omitted).
Porter argues that his thirty-three year solitary confinement is conscience-shocking because Defendants have subjected him to “extreme social isolation” even though he has a perfect disciplinary record and they are aware of the psychological and physical consequences of prolonged isolation. Defendants argue that Porter cannot bring a separate substantive due process claim because his Eighth Amendment claim covers the same allegations under the more-specific-provision rule.
We agree with Defendants. The Supreme Court “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins, 503 U.S. at 125. Under the more-specific-provision rule, “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). As the Supreme Court explained in Whitley v. Albers, 475 U.S. 312, 327 (1986):
[T]he Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, “conduct that shocks the conscience” or “afford[s] brutality the cloak of law,” and so violates the Fourteenth Amendment, were not also punishment “inconsistent with contemporary standards of decency” and “repugnant to the conscience of mankind,” in violation of the Eighth . . . . [I]n these circumstances the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause.
Id. at 327 (internal citations omitted).
We first applied the more-specific-provision rule in Betts, 621 F.3d at 260. There, the plaintiff alleged that prison officials violated his Eighth Amendment and substantive due process rights by permitting him to play tackle football without protective equipment. We noted that the plaintiff failed to “cite any case law for the proposition that he may bring both substantive due process and Eighth Amendment claims challenging the same conduct” and that his claims about his conditions of confinement and the officials’ failure to ensure his safety “fit squarely within the Eighth Amendment‘s prohibition on cruel and unusual punishment.” Id. at 261; see also Wharton v. Danberg, 854 F.3d 234, 246 (3d Cir. 2017) (affirming district court‘s dismissal of substantive due process claims that were parallel to Eighth Amendment claims under the more-specific-provision rule).
Porter submits that the claims are distinct because on his substantive due process claim, he is arguing that Defendants “have violated that constitutional right by engaging in conduct that shocks the conscience irrespective of any procedural safeguards, unreasonable risk, or penological purpose.” Opening Br. 46-47. But we do not see a distinction here. As in Betts, Porter‘s substantive due process claim challenges the same conduct as his Eighth Amendment claim, namely, his prolonged solitary confinement. There are no distinct facts that apply only to his substantive due process claim. We therefore affirm the Magistrate Judge‘s grant of summary judgment on Porter‘s substantive due process claim.
D. Qualified Immunity
Finally, we must decide whether Defendants have qualified immunity from Porter‘s constitutional claims.13 Because the Magistrate Judge found that Defendants did not violate Porter‘s constitutional rights, she did not reach this affirmative defense. Since we disagree with the Magistrate Judge on the procedural due process and Eighth Amendment claims we will do so. See Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir. 2001) (“We may affirm a judgment on any ground apparent
We apply a two-part test to qualified immunity defenses: “We first determine whether a right has been violated. If it has, we then must decide if the right at issue was clearly established when violated such that it would have been clear to a reasonable person that her conduct was unlawful.” Williams, 848 F.3d at 557. To determine whether the right was clearly established, the inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition. . . .” Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (receded from on other grounds by Pearson, 555 U.S. 223). In some cases, “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.” Hope, 536 U.S. at 741 (2002) (quoting Lanier, 520 U.S. at 271) (brackets in original) (internal quotation marks and citation omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances” as long as the law gives the officials “fair warning” that their treatment of the inmate is unconstitutional. Id.
We look to the Supreme Court, our Circuit, and our sister circuits to determine whether a right is clearly established:
In conducting the inquiry into whether a right is clearly established, we look first for applicable Supreme Court precedent. If none exists, we consider whether there is a case of controlling authority in our jurisdiction or a robust consensus of cases of persuasive authority in the Courts of Appeals that could clearly establish a right for purposes of qualified immunity.
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (internal citations, quotation marks, and alterations omitted).
1. Porter‘s Procedural Due Process Claim
Because Porter‘s procedural due process rights have been clearly established since we decided Williams in 2017, Defendants are not entitled to qualified immunity on this claim. In Williams, we explicitly stated:
Our holding today that Plaintiffs had a protected liberty interest provides “fair and clear warning” that, despite our ruling against Plaintiffs, qualified immunity will not bar such claims in the future. As we have explained, scientific research and the evolving jurisprudence has made the harms of solitary confinement clear: Mental well-being and one‘s sense of self are at risk. We can think of few values more worthy of constitutional protection than these core facets of human dignity.
848 F.3d at 574 (quoting Lanier, 520 U.S. at 271).
We were not alone in reaching this conclusion. See Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017) (holding that inmate who had been in administrative segregation for over ten years had a due process liberty interest in avoiding continued isolation); Incumaa v. Stirling, 791 F.3d 517, 531-32 (4th Cir. 2015) (holding that an inmate who spent twenty years in solitary confinement had a due process liberty interest in avoiding solitary confinement); Wilkerson v. Goodwin, 774 F.3d 845, 857-58 (5th Cir. 2014) (denying a qualified immunity defense to prison officials on a procedural due process claim brought by an inmate who had been in solitary confinement for thirty-nine years and stating that “no reasonable prison official could conclude that continuing four decades in indefinite solitary confinement would not
There is therefore wide consensus that prolonged and indefinite solitary confinement gives rise to a due process liberty interest for inmates in Porter‘s circumstances. These cases gave Defendants “fair warning” that keeping an inmate who has been in solitary confinement for thirty-three years on death row while appeals of his vacatur order proceed violates his procedural due process rights. Defendants therefore are not entitled to qualified immunity as of our decision in Williams.
2. Porter‘s Eighth Amendment Claim
On Porter‘s Eighth Amendment claim, however, we reach a different conclusion. Unlike his procedural due process rights, Porter‘s Eighth Amendment right has not been clearly established. Porter has correctly pointed out that our Circuit and our sister circuits have held that inmates can bring Eighth Amendment claims based (at least in part) on conditions in solitary confinement. But only one circuit has done so in connection with solitary confinement on death row. Cases that challenge interpretation of death row policy and conditions on death row are distinct from cases brought by inmates in general population subject to solitary confinement. In Williams, for example, we considered whether our decision in Shoats, 213 F.3d 140, was sufficiently similar to the facts and claims raised by the Williams plaintiffs. We decided that, although Shoats is analogous and should have “raised concerns” about whether the treatment of the Williams plaintiffs was constitutional, it was not sufficiently similar because Shoats was not on death row and did not directly dispute the death row isolation policy at issue in Williams. See Williams, 848 F.3d at 572.
We have not found Eighth Amendment cases with sufficiently similar fact patterns, and the cases that Porter cites in support of his argument are inapposite. In particular, Porter‘s reliance on Palakovic, 854 F.3d 209 is unavailing. In that case, the plaintiff had committed suicide in solitary confinement. He was not on death row. The plaintiff‘s family alleged that he had preexisting serious mental health problems that the prison had diagnosed. Even so, prison officials repeatedly placed him in solitary confinement. Considering the plaintiff‘s particular vulnerability in light of the known dangers of solitary confinement, we held that the plaintiff had stated an Eighth Amendment claim. Id. at 225-26. Although the Palakovic decision certainly acknowledges the dangers of solitary confinement, that the plaintiff was not on death row and had specific known mental health issues pre-assignment to solitary confinement distinguishes Palakovic from Porter‘s case.
We similarly find Porter‘s reference to Allah v. Bartkowski, 574 F. App‘x 135 (3d Cir. 2014) (unpublished), unconvincing.
The Fourth Circuit has held that solitary confinement conditions on death row violate the Eighth Amendment. Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). But a single out-of-circuit case is insufficient to clearly establish a right. Defendants are therefore entitled to qualified immunity on Porter‘s Eighth Amendment claim.
We emphasize, however, that from this point forward, it is well-established in our Circuit that such prolonged solitary confinement satisfies the objective prong of the Eighth Amendment test and may give rise to an Eighth Amendment claim, particularly where, as here, Defendants have failed to provide any meaningful penological justification.
IV. CONCLUSION
For the foregoing reasons, we will reverse and remand in part and affirm in part. We reverse the Magistrate Judge‘s grant of summary judgment to Defendants on Porter‘s procedural due process claim. We affirm the grant of summary judgment to Defendants on Porter‘s Eighth Amendment claim, but on the ground that Defendants are entitled to qualified immunity because the right was not clearly established. We affirm the grant of summary judgment to Defendants on
Porter’s substantive due process claim. Finally, we remand to the District Court to determine damages and declaratory and injunctive relief.14
The majority incorrectly holds that Porter’s solitary confinement violates his procedural due process rights. To reach that conclusion, the majority must shoehorn this case into the non-analogous holding of Williams v. Secretary Pennsylvania Department of Corrections, 848 F.3d 549 (3d Cir. 2017). It accomplishes that only by ignoring Supreme Court precedent describing the nature of a judicial stay. The majority then strides into constitutional territory that the Supreme Court and our Court have assiduously avoided—holding that Defendants likely violated the
I concur in part because I agree with the majority that Porter’s substantive due process claim is barred by the more-specific-provision rule. See Maj. Op. 31–33. Assuming for the sake of argument that Porter’s
I
On April 27, 1986, Theodore Wilson a.k.a. Ernest Porter1 robbed, shot, and killed Raymond Fiss at Fiss’s Philadelphia beauty shop. Commonwealth v. Porter, 569 A.2d 942, 944 (Pa. 2012). A Pennsylvania jury convicted Porter of first-degree murder, robbery, and possessing a firearm. Id. at 943. The jury then sentenced Porter to death. Id. In accordance with state law, he was placed in solitary confinement. See
The Supreme Court of Pennsylvania affirmed Porter’s conviction and sentence. It also denied his two subsequent petitions for post-conviction relief. See Commonwealth v. Porter, 728 A.2d 890, 893 (Pa. 1999); Commonwealth v. Porter, 35 A.3d 4, 6 (Pa. 2012).
In 2000, Porter filed a petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania. On June 26, 2003, the District Court granted relief with respect to Porter’s death sentence but denied the petition in all other respects. Porter v. Horn, 276 F. Supp. 2d 278, 288 (E.D. Pa. 2003). Porter and the government both appealed, triggering an automatic stay of the District Court’s order vacating Porter’s death sentence. See E.D. Pa. L.R. 9.4(12) (requiring the District Court, after granting a certificate of appealability in a habeas proceeding, to “grant a stay pending disposition of the appeal“). Seventeen years later, at Porter’s request, his habeas appeal remains pending in abeyance before this Court. So he has continued to live in solitary confinement.
Porter commenced this action in 2017, alleging violations of three constitutional protections: (1) his procedural due process rights under the
II
The majority holds that Pennsylvania has violated Porter’s procedural due process right to avoid continued solitary confinement. That holding turns on the majority’s insistence that ”Williams governs Porter’s procedural due process claim.” Maj. Op. 10. But by its own terms, Williams does not apply to this case. And without Williams, Porter’s alleged protected liberty interest and procedural due process claim have no legal support.
In Williams, the plaintiffs were two Pennsylvania death-row inmates who were kept in solitary confinement by prison officials for six and eight years, respectively, after their death sentences were vacated. 848 F.3d at 554. The fact that the inmates remained in solitary confinement long after their death sentences had been vacated is central to Williams’s holding,3 and it permeates the entire opinion: Twenty-eight times we carefully noted that the inmates were kept in solitary confinement after their death sentences had been vacated.
In the section of Williams concluding that the inmates had a protected liberty interest, we emphasized that they remained in solitary confinement on death row for years “after the initial justification for subjecting them to such extreme deprivation (their death sentences) ceased to exist.” Id. at 561 (emphasis added). Focusing on the indefinite nature of their solitary confinement, we said that their “confinement on death row after their death sentences were vacated continued for years with no ascertainable date for their release into the general population.” Id. at 562 (emphasis added). And contrasting the plaintiffs with other inmates who were moved into and out of administrative segregation for behavioral reasons, we observed that they “would still have been relegated to death row indefinitely even though they had won new sentencing proceedings and were not under active sentences of death.” Id. (emphasis added).
In another section of Williams, we distinguished cases holding that capital murder inmates do not have a liberty interest that precludes confinement on death row without regular review because “those inmates were all confined pursuant to death sentences that had not been vacated.” Id. at 569 (emphasis in original) (distinguishing Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015); Smith v. Coughlin, 748 F.2d 783 (2d Cir. 1984); and Parker v. Cook, 642 F.2d 865 (5th Cir. 1981)). “Accordingly,” we explained, “confinement on death row was not a significant or atypical hardship for them. Rather, it was expressly within the ‘expected perimeters of the sentence imposed.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 485 (1995)). Because the Williams plaintiffs’ death sentences had been vacated, their liberty interests were “not comparable to those of inmates with active death sentences that arguably require continued placement on death row.” Id. But if the fact of an active death sentence is what distinguished Williams from Prieto, Smith, and Parker, then it also distinguishes Porter’s case from Williams.
Finally, in order to dispel any possible ambiguity we explicitly cabined Williams’s holding by refusing to extend it to “inmates whose death sentences are still active and viable.” Id. at 552 n.2. That is, inmates like Porter.
A
I belabor this point because Porter’s solitary confinement (unlike the plaintiffs in Williams, but exactly like the capital murder inmates in Prieto, Smith, and Parker) is required by his still-active death sentence. As we noted in Williams, when a defendant is sentenced to death and the Governor issues a warrant for execution, the Department of Corrections “shall, until infliction of the death penalty or until lawful discharge from custody, keep the inmate in solitary confinement.”
B
The majority attempts to fit this case into Williams’s holding by asserting that ”Porter’s circumstances are analogous to those of the Williams plaintiffs.” Maj. Op. 11. In fact, Porter’s case differs from Williams on precisely the ground that that we took such pains to emphasize in Williams: He still has an active death sentence.
Porter’s death sentence remains active because the habeas court’s vacatur order was immediately stayed, preserving the status quo. The majority brushes that aside, declaring that the stay “does not mean that the [vacatur] order has no legal import or that Porter currently has a viable death sentence.” Maj. Op. 11. This is pure ipse dixit, and it is incorrect.
In Nken v. Holder, 556 U.S. 418 (2009), the Supreme Court described the nature and effect of a stay. As the Court explained, a stay is not a vague, legally meaningless pause in a judicial proceeding. For as long as the stay is in effect it “suspend[s] the source of authority to act—the order or judgment in question[.]” Id. at 428–29. Although a stay is functionally similar to an injunction, they “serve different purposes” and are analytically distinct in this important respect: The injunction operates in personam, telling a particular actor what it may or may not do; conversely, the stay “operates upon the judicial proceeding itself” and prevents “judicial alteration of the status quo.” Id.
Here, the status quo that would have been judicially altered by the habeas court’s vacatur order was Porter’s active death sentence. But because the stay of that order “suspend[ed] judicial alteration of the status quo,” see id. at 429 (citation omitted), Porter’s death sentence was undisturbed and remains in place, uninterrupted, to this day.
This explication of Nken’s teaching about stays is utterly conventional. Following Nken, other circuit courts have similarly described stays as “preserv[ing] the status quo,” Al Otro Lado v. Wolf, 945 F.3d 1223, 1224 (9th Cir. 2019), “suspend[ing] judicial alteration of the status quo,” Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (citing Nken, 556 U.S. at 429), and “void[ing] any legal effect
The critical distinction between Williams and this case cannot be evaded by pretending that the stay of the vacatur order was a legal nullity.
III
Porter argues in the alternative that even if Williams does not apply, his solitary confinement is an atypical and significant hardship that creates a due process liberty interest. Because the majority holds that Nken does not apply and so Williams does, it declined to address this argument. Maj. Op. 15 n.4. But Porter’s constitutional-liberty-interest argument is also a non-starter.
“The Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin, 515 U.S. at 480 (internal quotation marks and citation omitted). Therefore, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976). So the baseline for a prisoner’s allegation of atypical and significant hardship “is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Powell v. Weiss, 757 F.3d 338, 344 (3d Cir. 2014) (citation omitted).
In Sandin, the plaintiff challenging his solitary confinement did not have a protected liberty interest because his detention in a segregated unit “did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.” Sandin, 515 U.S. at 486. But inmates in long-term solitary confinement may have a protected liberty interest if they can show that, but for the discretionary decisions of prison administrators, they would be in the general prison population. Shoats v. Horn, 213 F.3d 140, 143–44 (3d Cir. 2000). Their solitary confinement is thus “atypical” in relation to the ordinary incidents of prison life and differs significantly from “routine” prison conditions in Pennsylvania prisons. Id. at 144; see also Williams, 848 F.3d at 561 (noting that prison administrators continued plaintiffs’ assignment on death row “after the initial justification for subjecting them to such extreme deprivation (their death sentences) ceased to exist“); see also Wilkinson v. Austin, 545 U.S. 209, 217 (2005) (explaining that plaintiffs were assigned to Ohio’s Supermax facility upon the discretionary recommendation of a three-member committee, approved by prison warden and the Bureau of Classification, a body of “prison officials vested with final decisionmaking authority over all Ohio inmate assignments“).
Porter does not fit within the category of prisoners described in Shoats, Williams, or Wilkinson because his solitary confinement was not discretionary. His death sentence carries with it the statutory requirement that he remain in solitary confinement until execution or discharge from custody. Because solitary confinement is “within the sentence imposed[,]” it is not atypical but exactly what Porter could reasonably expect as a result of his death sentence. See Sandin, 515 U.S. at 480 (citation omitted).
The majority contends that sixty days after the issuance of Porter’s execution warrant, his housing status was left entirely to the discretion of Pennsylvania’s Department of Corrections. Maj. Op. 25 n.9. That is not what the statute says. Pennsylvania law provides that within ninety days after a death sentence has been transmitted to the governor, he shall issue an execution warrant.
The Commonwealth Court’s decision in Clark emphasizes this point. In that case, the court specifically rejected the argument that “an inmate convicted of capital crimes [c]ould be moved back and forth between the general population and the Capital Case Unit, depending upon the status of his execution warrant[.]” Id. at 161. Although the execution warrant “is the trigger for moving an inmate to the Capital Case Unit” in the first instance, his continued stay in solitary confinement is required by statute, not the status of the warrant, “which might be signed several times over the course of [the] inmate’s post-conviction appeals.” Id. The Department has discretion “where to house” the death-sentenced inmate, but it does not have discretion to remove him from the Capital Case Unit altogether. Id. at 160. To the contrary,
IV
The majority also creates for death-row prisoners like Porter a brand-new constitutional right to escape solitary confinement. In fashioning this new right, it precipitately veers into
A
The majority applies the conditions-of-confinement standard to Porter’s Eighth Amendment claim, concluding that he has satisfied both its objective and subjective prongs. Maj. Op. 17. But there are two problems with the majority’s analysis. First, Porter’s claim does not satisfy the objective prong. Second, his attack on a statutorily required punishment cannot meaningfully be analyzed under the subjective prong.
The
To succeed on a conditions-of-confinement claim, a prisoner must show that the conditions involve the “unnecessary and wanton infliction of pain.” Id. (citation and emphasis omitted). We analyze a conditions-of-confinement claim using objective and subjective prongs. Id. at 298. The objective prong considers whether a punishment contravenes “the evolving standards of decency that mark the progress of a maturing society[.]” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).
Under the objective prong, a condition of confinement (or a combination of conditions) must produce “the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Wilson, 501 U.S. at 304. Other basic human needs identified by the Supreme Court include “shelter, medical care, and reasonable safety.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted) (noting that prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care,” and that they are reasonably safe). The deprivation must be “sufficiently serious” and “must result in the denial of ‘the minimal civilized measure of life’s necessities[.]’” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 298, and Rhodes, 452 U.S. at 347).
Porter does not identify the deprivation of any basic human need recognized by the Supreme Court. As the majority observes, Porter averred that he has experienced “severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication.” Maj. Op. 21 (quoting JA 41). In his brief, Porter characterizes the “single, identifiable human need” denied to him as “physical or psychological health, social interaction, or environmental stimulation.” Appellant’s Br. at 32. And the majority summarizes dicta from Williams and other cases describing a purportedly robust scientific consensus pointing to a substantial risk of psychological harm caused by solitary confinement. Maj. Op. 18–21.
From these allegations and dicta, the majority concludes that Porter has satisfied the objective prong of his conditions-of-confinement claim. Maj. Op. 21.5 But the Supreme Court has not recognized
We have, however, rejected a virtually identical
The primary responsibility for operating prisons belongs to prison administrators, to other state law enforcement officials and to the state legislature. The [E]ighth [A]mendment does not authorize a federal court to second guess their decisions nor is it our role to express our agreement or disagreement with their overall policies or theories of prison administration, as long as we find no constitutional violation.
Id. at 1032–33 (citation omitted). Peterkin remains binding precedent,6 and as I explain below the majority’s attempt to distinguish it is deeply unpersuasive. The result is a sub silento panel reversal.
1
First, the majority asserts that Porter is making an as-applied challenge to his specific conditions of confinement, whereas Peterkin involved a facial challenge to death row conditions generally. See Maj. Op. 22–23. This argument mischaracterizes Porter’s complaint, and, in any event, the alleged distinction is constitutionally meaningless.
The majority’s framing of Porter’s
Specifically, Porter alleges that Defendants violated his right to be free from cruel and unusual punishment by failing “to remove [him] from ‘death row’ as housed in solitary confinement once the sentence of death had been vacated.” JA 44 (Cmpl. ¶ 44) (emphasis added). He further alleges that Defendants violated his
In the paragraphs of Porter’s Complaint common to all counts, he avers a number of “well established” conditions of solitary confinement—conditions that are the same for death-row inmates throughout Pennsylvania and virtually identical to those challenged in Peterkin. Id. at 40 (Cmpl. ¶ 12); cf. Peterkin, 855 F.2d at 1026–31 (describing challenged conditions of confinement). He then alleges, not that those conditions or any combination of them is cruel and unusual, but that his continued confinement in such “well established” conditions is no longer justified. In support of that allegation, he specifically cites and quotes Williams. JA 40 (Cmpl. ¶¶ 13, 14).
In short, Porter has not asserted an as-applied conditions-of-confinement claim based on thirty-three years in solitary confinement. His
Even if Porter had asserted a conditions-of-confinement claim, it is readily apparent from his complaint and from the majority’s sweeping opinion that he does not raise an as-applied
Finally and most importantly, even if Porter’s
2
The majority next attempts to distinguish Peterkin by observing that Porter “has spent substantially more time in solitary confinement on death row than the Peterkin plaintiffs.” Maj. Op. 24. Again, Porter’s
In any event, the majority makes no attempt to show why Porter’s longer stay on death row is constitutionally significant or legally distinguishes Peterkin’s
Still, it is indeed troubling that seventeen years after the habeas court granted relief with respect to Porter’s death sentence and stayed its vacatur order pending appeal, he perseveres in solitary confinement and the cross-appeals remain undecided. Porter’s habeas appeal was docketed on August 14, 2003. Over the next three years, Porter filed eight motions to stay or temporarily toll briefing, all of which were granted. On November 9, 2006, Porter filed a motion to hold his case in abeyance pending the Pennsylvania state courts’ disposition of his petitions for post-conviction relief. We granted Porter’s motion over the government’s opposition, held the case in abeyance, and required a status report every sixty days. From April 2007 to date, Porter’s counsel has duly filed status reports every sixty days, advising this Court that his PCRA petition remains pending before the state PCRA court but never asking this Court to resolve his case. At the same time, Porter has apparently argued
In Commonwealth v. Porter, the Supreme Court of Pennsylvania recounted the history of this multi-jurisdictional procedural morass. That court opined that Porter’s litigation “strategy—pursued in both state and federal court—has been to avoid having any of [his] collateral claims decided any time soon.” 35 A.3d at 15. And in Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), Chief Justice Castille filed a concurring opinion describing in detail and sharply criticizing Porter’s litigation strategy, which has “assured a de facto, perpetual stay of execution.” 18 A.3d at 347 (Castille, C.J., concurring). The principle of comity counsels that we at least respectfully consider the Pennsylvania Supreme Court’s writings on a matter of direct import to this case.
Porter asserts that his maintenance in solitary confinement after 2003 violates his
And because the law assumes that moral actors are responsible for their voluntary actions, courts have uniformly rejected prisoners’ arguments that delay caused by their own extended appeals creates an
I wholeheartedly affirm that no litigant should be criticized for vigorously pursuing his appeal rights. But acknowledging responsibility is different than criticism. And the history of this particular appeal is extraordinary, to say the least. The salient issue, which the majority avoids, is whether Porter—perhaps through less-than-candid maneuvering in two jurisdictions—has thwarted this Court’s disposition of his appeal precisely because he does not wish to pursue his appeal rights. If so, the majority’s argument that Peterkin is distinguishable because Porter has spent relatively more time on death row rings especially hollow.
3
Finally, the majority attempts to distinguish Peterkin because the “research and caselaw” have allegedly “advanced considerably” since that case was decided. Maj. Op. 24. Even if that were correct, it is insufficient reason for a panel to overrule a decision with which it no longer agrees. 3d Cir. I.O.P. 9.1 (2018). But it is incorrect.
The majority overstates the extent to which caselaw has “advanced” in the direction that the majority perceives. The Supreme Court has never held that solitary confinement violates the
In support of its assertion that caselaw has “advanced considerably” since Peterkin, the majority cites one case from another circuit, Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). Clarke was the first and remains the only Court of Appeals decision holding that solitary confinement violates the
At bottom, the majority jettisons Peterkin because of “scientific and medical research” which allegedly provides insight about solitary confinement that we lacked when deciding Peterkin (1988), or for that matter Young (1992) and Griffin (1997). Maj. Op. 18–21. That seems to me a dubious proposition. Long before such research emerged, Americans well-understood the baleful effect of solitary confinement on some inmates. Alexis de Tocqueville vividly wrote about the American practice in 1833,9 as did Charles Dickens in 1842.10 And in 1890, the Supreme Court pointedly remarked:
A considerable number of the prisoners fell, after even a short [solitary] confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.
In re Medley, 134 U.S. 160, 168 (1890).
Throughout the twentieth century, similar criticisms were raised, and political and legal challenges were asserted against the use of solitary confinement. Those controversies attracted the attention of psychologists and psychiatrists who “wrote and testified about the nature, magnitude, and long-term consequences of these acute negative effects.” Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 491 (1997).
So while scientific articles may have proliferated in recent years, we have not witnessed some kind of Copernican shift in our understanding. The risk of potential harm from solitary confinement (as well as the obvious possible
None of the “scientific and medical research” upon which the majority relies so heavily was included in the record of this case. So this panel has not even seen the relevant studies. Instead, the majority simply declares that the risk of harms discussed in unidentified scientific and medical research is “well established,” citing dicta from other cases and an amicus brief. Maj. Op. 18–21. Thus, the evidentiary burden is neatly flipped in this case: The substantial risk of harm that Porter must show is simply presumed as though it were judicially noticeable.
I believe we should at least attend to the scientific research rather than merely accept descriptions of it, sight unseen, as settled adjudicative fact. If we did, we may be surprised to find that the allegedly robust consensus is a bit overstated.
For example, in July 2015, President Obama “directed Attorney General Loretta E. Lynch and the Justice Department to review the overuse of solitary confinement across U.S. prisons.”11 As part of that review, the U.S. Department of Justice’s National Institute of Justice12 issued a March 2016 paper titled “Administrative
- “The only clear statement that can be made about the body of literature assessing the psychological effects of solitary confinement is that researchers using different methods to study different populations have come to different conclusions about the psychological effects on inmates.” Id. at 16.
- “Although rarely acknowledged, the psychological/psychiatric effects research frequently relies on a large body of literature on the effects of sensory deprivation. . . . [I]t is often taken for granted that isolation will have severe and lasting detrimental effects on the psychological well-being of all those exposed to it, even though the evidence in this area does not always bear out this assumption . . . .” Id. n.10.
- “Other respected scholars have also been less than convinced by the accumulated evidence regarding psychological effects. Bonta and Gendreau (1990), for example, argued that little evidence exists of deteriorating mental health among inmates, emphasizing that ‘long-term imprisonment and specific conditions of confinement such as solitary, under limiting and humane conditions, fail to show any sort of profound detrimental effects.’” Id. at 17.
- Researchers’ “findings could just as easily be interpreted as demonstrating that incarceration in and of itself has damaging effects on the mental health of individuals subjected to it, especially initially.” Id. at 18.
- Meta-analytic scholars “found only weak effects of solitary confinement on inmate outcomes (most of which were psychological) and concluded that their meta-analytic review did not find support for the long-argued contention that solitary confinement has lasting psychological effects on those subjected to it.” Id. at 22.
- Findings from recent meta-analyses “cast some doubts about [solitary confinement] being as devastating to inmates as has often been portrayed in the media and by some human rights organizations, activists, and scholars who vehemently oppose the practice on moral/ethical grounds . . . .” Id.
- “After a thorough review of the extant literature [on the practice of all types of administrative segregation throughout the United States], it is clear that, in 2015, the answers continue to be few and the questions many. It is equally clear that when researchers have disagreed, and in this area they have tended to disagree passionately, they have not always been speaking the same language or conducting research with equivalent populations.” Id. at 23.
- “What is more, for many researchers studying solitary confinement, the practice raises not only empirical questions but also moral and ethical concerns that will persist regardless of the breadth or depth of the evidence
base. Across a literature replete with highly charged emotions, interpreting the evidence and separating evidence from strongly held beliefs have become exceptionally difficult.” Id.
These bullet points are not fully representative of the NIJ report. It also finds, for example, that “a substantial body of work has established that solitary confinement can have damaging psychological effects, particularly when that confinement involves near complete isolation and sensory deprivation, or when the term of such confinement is extended.” Id. at 17. But my point is that the purported “consensus” of recent medical and scientific research is not so “robust” and univocal as to justify overturning Peterkin, just because that case was decided in 1988. At least according to the NIJ report, the scientific evidence is ambiguous, contested, and ideologically charged. But the majority does not even acknowledge the ongoing debate, choosing instead to repeat broad, one-sided pronouncements.
B
The subjective prong of the conditions-of-confinement standard requires a prisoner to establish that prison officials acted with deliberate indifference. Wilson, 501 U.S. at 302–03. A prison official is deliberately indifferent when he “knows of and disregards an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at 837. The deliberate indifference test is thus individualized for each prison official responsible for inmates’ care. The majority asserts that Porter has satisfied the subjective prong because officials from Pennsylvania’s Department of Corrections are aware of risks that accompany solitary confinement. Maj. Op. 25–30.
But Porter has not been in solitary confinement because of the discretionary decisions or policies of DOC officials acting with the “requisite culpable state of mind.” See Wilson, 501 U.S. at 297. Instead, the citizens of Pennsylvania, through their elected representatives in the General Assembly, have determined that he must remain in solitary confinement while on death row. See
As the Court noted in Wilson, Estelle first extended
The Supreme Court has applied the conditions-of-confinement standard to medical care;13 disciplinary (i.e., discretionary) solitary confinement;14 double celling;15 injuries
V
I agree that Porter’s substantive due process claim is barred under the more-specific-provision rule. See Maj. Op. 31–33. So I concur with Part III.C. of the majority’s opinion.
VI
The majority holds that qualified immunity is unavailable to Defendants because Porter’s procedural-due-process right was clearly established by Williams. See Maj. Op. 36. I disagree for all of the reasons stated in Part II above. Rather, I believe the majority has created a new procedural-due-process right to be free from solitary confinement notwithstanding an active death sentence. Because that right was not clearly established, Defendants are entitled to qualified immunity on Porter’s procedural due process claim.
VII
Assuming for the sake of argument that Porter’s
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This opinion explains my disagreement with the majority’s opinion and judgment. It is not about the merits or demerits of solitary confinement. Whether to use solitary confinement at all—and if so, under what circumstances, for which prisoners, the specific conditions of confinement, and the duration of such confinement—is a policy judgment bristling with moral, political, penological, institutional, and religious or philosophical questions. Such policy judgments are reserved for the Legislative Branch18—and the Pennsylvania Legislature has made them, at least for inmates who, like Porter, have been sentenced to death following a conviction of murder. For the reasons discussed herein, I respectfully dissent in part from the majority’s