Bridges v. Wetzel et al

RESPONSE in Opposition re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or, in the Alternative, for Summary Judgment

E.D. Pa.October 5, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ___________________________________ : SHAWNFATEE BRIDGES, : Plaintiff, : Case No. 17-3443 : v. : : JOHN E. WETZEL, Secretary, : ELECTRONICALLY FILED Pennsylvania Department of Corrections; : SHIRLEY MOORE-SMEAL, Executive : Deputy Secretary of the DOC; : JURY TRIAL DEMANDED MICHAEL WENEROWICZ, Regional : Deputy Secretary of the DOC; CYNTHIA : LINK, Superintendent SCI Graterford; : LAURA BANTA, (Acting) Deputy : Superintendent, SCI Graterford, DENNIS : BRUMFIELD, Deputy Superintendent SCI : Graterford, : Defendants. : ___________________________________ : PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 1 of 30 2 Table of Contents I. Introduction ................................................................................................................ 5 II. Statement of Relevant Facts .................................................................................... 5 III. Standard of Review.................................................................................................. 7 IV. Legal Argument........................................................................................................ 8 A. Mr. Bridges has a cognizable Eighth Amendment conditions of confinement claim for Defendants’ failure to remove him from perpetual solitary confinement. ........................................................................................................... 8 1. Subjecting Mr. Bridges to perpetual solitary confinement has deprived him of basic human needs .................................................................................................................................10 2. Defendants’ Deliberate Indifference .........................................................................................14 B. Mr. Bridges sets forth a cognizable Fourteenth Amendment claim for Defendants’ failure to provide Mr. Bridges with a meaningful opportunity to challenge his solitary confinement. .................................................................... 16 C. Mr. Bridges has a valid substantive due process claim under the Due Process Clause for Defendants’ actions to continue to hold Mr. Bridges in solitary confinement for nearly 20 years without a valid penological or other justification........................................................................................................... 24 D. Defendants are not entitled to qualified immunity........................................... 26 V. CONCLUSION........................................................................................................... 29 Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 2 of 30 3 TABLE OF AUTHORITIES Cases Anderson v. Creighton, 483 U.S. 635, 640 (1987) ........................................................... 26 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) ................................................................. 26 Ashker v. Brown, No. 4:09-cv-5796, Dkt. No. 191, Order Denying Mot. To Dismiss (N.D. Cal. Apr. 9, 2013).............................................................................................................................. 13 Ashker v. Brown, No. 4:09-cv-5796, Dkt. No. 191, Order Denying Mot. To Dismiss, *9 (N.D. Cal. Apr. 9, 2013)................................................................................................ 13 Bridges v. Secretary, Pennsylvania Department of Corrections, Nos. 13-9000 & 13-9001 (3d Cir. Sept. 1, 2017) ................................................................................................... 23 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998) ........................................... 24 Coble v. Damiter, Civ. No. 3:11-CV-1276, 2012 WL 3231261, *8-*9 (M.D. Pa. June 27, 2012)................................................................................................................................ 9 Davis v. Scherer, 468 U.S. 183, 196 (1984) ..................................................................... 28 Dee v. Marriot Int’l, Inc., No. Civ. A. 99-2459, 1999 WL 975125, at *2 (E.D. Pa. Oct. 6, 1999)................................................................................................................................ 8 Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204, 210–11 (3d Cir. 2001) ...... 28 Evans v. Sec’y of Dept. of Corr., 645 F.3d 650, 660 (3d Cir. 2011)................................. 24 Farmer v. Brennan, 511 U.S. 825, 832 (1994) ............................................................... 8, 9 Harlow v. Fitzgerald, 457 U.S. 800, 818L. Ed. 2d 396 (1982) .................................. 26, 27 Heck v. Humphrey, 512 U.S. 477 (1994) .......................................................................... 22 Helling v. McKinney, 509 U.S. 25, 35 (1993)..................................................................... 8 Hewitt v. Helms, 459 U.S. 460 (1983) .............................................................................. 24 Hutto v. Finney, 437 U.S. 678 (1978) ...................................................................................................... 12 Johnson v. Wetzel, 209 F. Supp. 3d 766 (2016)............................................................ 9, 15 Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980) ........................................................... 8 Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000).................................. 8 Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1322 n.12 (2011) ........................ 8 McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y. Apr. 30, 1988) ..................................... 14 Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999) ............................................... 25 Nami v. Fauver, 82 F.3d 63 (3d Cir. 1996)....................................................................... 12 People of Three Mile Island Through Three Mile Island Alert, Inc. v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 143 (3d Cir. 1984) ................................................................. 27 Peterkin v. Jeffes, 661 F. Supp. 895 (E.D. Pa. 1987)........................................................ 11 Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) ........................................................ 10, 12 Renfro v. Unisys Corp., 671 F.3d 314, 321 (3d Cir. 2011)................................................. 8 Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999) ....................................................... 9 Saudin v. Conner, 515 U.S. 472 (1995) ............................................................................ 16 Sellers v. Baer, 28 F.3d 895, 902 (8th Cir.1994) .............................................................. 28 Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 3 of 30 4 Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000) .......................................................................................... 17 Shoatz v. Wetzel, No. 2:13-cv-0657, 2016 WL 595337 (W.D. Pa. 2016) .................................................. 12 Wilkinson v. Austin, 545 U.S. 209 (2005)............................................................. 16, 17, 24 Wilson v. Seiter, 501 U.S. 294, 304 (1991)......................................................................... 9 Young v. Quinlan, 960 F.2d 351 (3d Cir. 1992) ............................................................... 12 Statutes 61 Pa. C.S. § 4303....................................................................................................... 22, 27 Other Authorities Atul Gawande, Hellhole: The United States Holds tens of thousands of inmates in long- term solitary confinement. Is this torture?, The New Yorker, March 30, 2009 ........... 15 Black’s Law Dictionary (8th ed. 2004)............................................................................. 19 Erica Goode, Solitary Confinement: Punished for Life, N.Y. Times, Aug. 3, 2015......... 15 Jason Stromberg, The Science of Solitary Confinement: Research tells us that isolation is an ineffective rehabilitation strategy and leaves lasting psychological damage, Smithsonian Magazine (Feb. 19, 2014) ........................................................................ 15 Kirsten Weir, Alone, in ‘the hole’: Psychologists probe the mental health effects of solitary confinement, Monitor on Psychology v.43, no. 5 at 54 (May 2012) ............... 15 Merriam Webster-Dictionary............................................................................................ 19 Richard H. Walters, John E. Callagan, and Albert F. Newman, Effect of Solitary Confinement on Prisoners, The American Journal of Psychiatry, v. 119, issue 8 at 771- 771 (1963) ..................................................................................................................... 15 Stuart Grassian and Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, Int’l J. of Law and Psychiatry v. 8, issue 1 at 49- 56 (1986) ................................................................................................................. 14, 15 Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 4 of 30 5 I. INTRODUCTION On August 2, 2017, Plaintiff Shawnfatee Bridges filed a complaint against John E. Wetzel, Secretary, Pennsylvania Department of Corrections; Shirley Moore-Smeal, Executive Deputy Secretary of the DOC; Michael Wenerowicz, Regional Deputy Secretary of the DOC; Cynthia Link, Superintendent SCI Graterford; Laura Banta, (Acting) Deputy Superintendent, SCI Graterford; and Dennis Brumfield, Deputy Superintendent SCI Graterford. In the complaint, Mr. Bridges alleges that Defendants have violated the Eighth Amendment and Fourteenth Amendment of the United States Constitution. Defendants move to dismiss the Complaint, or in the alternative, move for summary judgment. As discussed more fully below, Mr. Bridges has alleged facts sufficient to establish plausible violations of the Eighth and Fourteenth Amendments. Accordingly, Defendants’ motion to dismiss, or in the alternative, motion for summary judgment, should be denied in its entirety. II. STATEMENT OF RELEVANT FACTS Shawnfatee Bridges, was held in solitary confinement for nearly 20 years, almost half his life. Compl. ¶ 1. Mr. Bridges was sentenced to death on February 23, 1998. At that time, he was just 21 years old. Id. ¶ 14. On May 27, 1998, the Department of Corrections (“DOC”) Assessment Unit directed Mr. Bridges’ transfer into Maximum Administrative Custody - the Restricted Housing Unit (“RHU”), citing “Administrative Directive #802” a November 22, 1982, policy mandating “maximum custody for inmates sentenced to death . . .” Exhibit A to Compl., DOC Assessment Unit Report. The DOC determined that Mr. Bridges must be confined in isolation because “[t]he nature of the Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 5 of 30 6 crime he has committed shows he is aggressive and violent. There is a risk he could repeat his behavior . . . and he also presents an unusual escape risk.” Id. The conditions of Mr. Bridges’ nineteen-year confinement are set forth in detail in the Complaint. Mr. Bridges has been subjected to the inhumane conditions of perpetual solitary confinement that involves significant sensory deprivation; sleep deprivation; environmental deprivation; human indignity; and high stress, all of which results in emotional and physical deterioration. Mr. Bridges was confined in a cell so small that there is barely room to move for over 21 hours per day, often for the entire day. See Exhibit. B to Compl., Declaration of Shawnfatee Bridges, ¶¶ 8-9. The cell doors are open-barred allowing for all DOC personnel walking by to observe his every move, much like an animal at the zoo. Id. ¶ 46. The light outside his cell remains on 24 hours per day and guards shine flashlights in his face every 30 minutes during night rounds causing sleep deprivation and increased stress. Id. The clang of metal slamming as doors are opened and closed while guards conduct rounds is constant throughout 24 hours every day, which gave him no peace, further exacerbating the stress. Id. For nineteen years, Mr. Bridges spent most of his day deprived of human interaction. He ate every meal alone and faced disciplinary action if he yelled over the noise on the block to communicate with another prisoner. Id. ¶ 36. For those rare occasions in which he was permitted outside his cell, he was strip-searched, handcuffed and tethered to a short leash the guards hold during the move, much like someone walking a dog. Id. ¶¶ 15-19. For the limited hours he was permitted “recreation,” Mr. Bridges was taken to a fenced kennel on concrete that is no bigger than a dog run, devoid of any equipment, so Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 6 of 30 7 that he could “exercise.” Id. ¶¶ 25-27. Even the mini law library was about the size of his cell. Id. ¶ 31. He was locked inside a cell or other cage for all but three hours per week, when he was allowed to clean showers and floors on death row. Id. ¶ 34. Per DOC policy, personal calls for death-sentenced prisoners are limited to three 15-minute calls per week; on various occasions Mr. Bridges had calls to counsel counted against that limit. Id. ¶ 30. Visits, both personal and legal, were non-contact. Id. ¶ 28. Mr. Bridges was locked inside one side of a booth with a partition and plexi-glass between himself and the visitor, talking via a telephone. Id. Other than limited contact incidental to prison life, Mr. Bridges had no meaningful human contact in over 19 years. Id. ¶ 28. He last hugged his mother in 1996, has never touched his grandchildren and, with the exception of a brief time in which he was in court in 2009, has not so much as shook the hand of his attorney. Id. Day in, and day out, Mr. Bridges suffered these inhumane conditions despite the absence of any significant disciplinary misconduct in nineteen years. Id. ¶ 7. As described in the Complaint, the Defendants have subjected Mr. Bridges to this inhumane, perpetual solitary confinement without any meaningful review of these conditions for nineteen years. On September 28, 2017, over three weeks after the Third Circuit affirmed the district court’s decision vacating his criminal conviction and sentence, Mr. Bridges was released from confinement in the Restrictive Housing Unit in Defendants’ custody and into the custody of Berks County. III. STANDARD OF REVIEW To survive a motion to dismiss, Mr. Bridges is only required to plead “enough facts to state a claim to relief that is plausible on its face.” Renfro v. Unisys Corp., 671 Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 7 of 30 8 F.3d 314, 321 (3d Cir. 2011) (citing Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1322 n.12 (2011)). A court considering a motion to dismiss for failure to state a claim brought pursuant to Federal Rules of Civil Procedure “must accept as true the factual allegations in the complaint.” Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). The court must construe the facts and reasonable inferences that can be drawn from the facts in the light most favorable to the non-moving party. Dee v. Marriot Int’l, Inc., No. Civ. A. 99-2459, 1999 WL 975125, at *2 (E.D. Pa. Oct. 6, 1999) (citing Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994)). The burden is on the moving party to show there is no actionable claim. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). IV. LEGAL ARGUMENT A. Mr. Bridges has a cognizable Eighth Amendment conditions of confinement claim for Defendants’ failure to remove him from perpetual solitary confinement. The Eighth Amendment’s prohibition against cruel and unusual punishment requires that prison officials ensure inmates are held in “humane” conditions. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment also protects against future harm, where conditions “pose an unreasonable risk of serious damage to [the prisoner’s] future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993). To establish a plausible Eighth Amendment claim, Mr. Bridges must allege facts sufficient to establish an objective component (the sufficiently serious deprivation of a single, identifiable human need) and a subjective component (defendants were aware of or deliberately indifferent to the risks created by the conditions). The Supreme Court has established a two-pronged inquiry for determining Eighth Amendment violations. First, the conditions to which a prisoner is subjected must be objectively “serious” – a denial of Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 8 of 30 9 “the minimal civilized measure of life’s necessities” - or pose a “substantial risk of serious harm.” Farmer, 511 U.S. at 834. See also Johnson v. Wetzel, 209 F. Supp. 3d 766, 776 (2016). A plaintiff must show a deprivation of a single, identifiable human need, such as health, safety, or exercise. Wilson v. Seiter, 501 U.S. 294, 304 (1991). A court may also consider a combination of conditions if that combination produces a “mutually reinforcing effect,” resulting in a deprivation of a single, identifiable human need. Id. Social interaction and environmental stimulation are basic human needs. See, e.g., Johnson, 209 F. Supp. 3d at 777; Wilkerson v. Stalder, 639 F. Supp. 2d 654, 677-678 (M.D. La. 2007); Ruiz v. Johnson, 37 F. Supp. 2d 855, 914-15 (S.D. Tex. 1999), rev’d on other grounds, 243 F. 3d 941 (5th Cir. 2001), adhered to on remand 154 F. Supp. 2d 975 (S.D. Tex 2001); Shoatz v. Wetzel, No. 2:13-cv-0657, 2016 WL 595337 at *8 (W.D. Pa. 2016). “[I]n the absence of interaction with others, an individual’s very identity is at risk of disintegration.” Williams, 848 F. 3d at 566; see also id. at 566-68 (describing the dehumanizing effect of long-term isolation). Second, the prison official must be subjectively culpable—showing “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted); see also Johnson, 209 F. Supp. 3d at 776. A defendant is deliberately indifferent when he or she “knows of and disregards” a deprivation or “an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; see also Coble v. Damiter, Civ. No. 3:11-CV-1276, 2012 WL 3231261, *8-*9 (M.D. Pa. June 27, 2012) (Prison officials cannot “choose to remain deliberately indifferent to an excessive or substantial or serious risk of harm to inmates”). Deliberate indifference can be inferred when the risk of harm is obvious. Farmer, 511 U.S. at 842. Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 9 of 30 10 1. Subjecting Mr. Bridges to perpetual solitary confinement has deprived him of basic human needs In his Complaint, Mr. Bridges alleges facts sufficient to plausibly establish the objective requirement of his Eighth Amendment claim. Specifically, Mr. Bridges alleges that the specific conditions he has been subjected to for the past nineteen consecutive years have deprived him of basic human needs, including human contact, meaningful social interaction, and mental stimulation. Compl. ¶¶ 20-31. These facts, as alleged in the Complaint and construed in the light most favorable to the non-moving party, are adequate to meet the objective requirement of his Eighth Amendment claim. Despite the thoroughness of Mr. Bridges’ complaint and the documentation presented in support, including his Declaration, Defendants maintain that the facts alleged do not support a claim for relief under the Eighth Amendment. Defs.’ Mem. of Law in Opp. to Pl.’s Mot. for Prelim. Inj. & in Supp. of Their Mot. to Dismiss or, In the Alternative, for Summ. J. (“Def.’s Br.”) at 17. In support of this contention, the Defendants rely on Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) to contend that both conditions at SCI Graterford and the Capital Case Policy are indeed constitutional. Defs.’ Br. at 18, 26. Yet, Peterkin was decided nearly 30 years ago. The record in Peterkin was based on a record of four to five years, not nineteen, and the scientific and judicial understanding of the harms and risks of solitary have greatly evolved since that time. Over the course of time, as the law governing the constitutional rights of prisoners has evolved and the research on the serious psychological harms of solitary confinement has developed, the conditions ruled constitutional at SCI Graterford in particular may no longer pass constitutional muster. Indeed, the district court’s decision that was upheld by the Third Circuit acknowledged as much by noting that the conditions deemed Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 10 of 30 11 constitutional at that time could cross the threshold into unconstitutional without attention. Peterkin, 855 F.2d at 1027 (quoting Peterkin v. Jeffes, 661 F. Supp. 895, 909 (E.D. Pa. 1987) (“Even though the existing conditions do not inflict cruel and unusual punishment . . . , [w]ithout attention, these conditions could cross the threshold proscribed by the eighth amendment in the foreseeable future.)).” It would therefore be imprudent for Defendants to rely on Peterkin to justify the constitutionality of its Capital Case Policy, the current conditions of death row, and its use of solitary confinement. Defendants also contend that Mr. Bridges relies on “generic ‘scientific authorities’” to support the harms he alleges, and that the “type of isolation” he experienced is not the “type of isolation” a prisoner confined to a supermax facility in Ohio, or a prisoner in disciplinary custody at SCI-Graterford, would face. Defs.’ Br. at 16. In essence, the Defendants completely ignore the Declaration filed by Mr. Bridges explaining in detail the harms he has experienced after nineteen years of solitary confinement. This dismissal is unwarranted. Defendants dismiss the very real, personal physical and psychological harms that Mr. Bridges describes in both his Complaint and Declaration. His expressed physical, emotional, and psychological harms closely mirror those identified in numerous scientific studies for the past three decades that delineate the harms of prolonged isolation. Furthermore, the so-called generic studies reflect a consensus within the scientific community researching solitary confinement that it does deprive prisoners of the basic human needs for social interaction and environmental stimulation and exposes them to specific mental and psychological harms—which was noted by the Third Circuit in Williams. The fact that Mr. Bridges’ own negative reactions to nineteen years of solitary confinement mirror these symptoms should not be dismissed Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 11 of 30 12 off-hand where Mr. Bridges has pled sufficient facts to support his allegations of physical and psychological harm. Moreover, the fact that the precise conditions of solitary confinement on death row do not mirror those in Ohio’s Supermax facility certainly does not refute Mr. Bridges’ claim that he was denied basic human needs. Rather, the Eighth Amendment inquiry focuses on the duration of confinement and the conditions and deprivations over that time period. Relevant considerations for this inquiry “include the length of confinement, the amount of time prisoners must spend in their cells each day, sanitation, lighting, bedding, ventilation, noise, education and rehabilitation programs, opportunities for activities outside of cells.” Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996); see also Hutto v. Finney, 437 U.S. 678, 686 (1978) (“The length of confinement [in isolation] cannot be ignored in deciding whether confinement meets constitutional standards”); Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (superseded by statute on other grounds) (“The duration and conditions of segregated confinement cannot be ignored in deciding whether such confinement meets constitutional standards.”); Peterkin v. Jeffes, 855 F.2d 1021, 1025 (3d Cir. 1988) (“[O]bjective factors which a court must examine in prison conditions cases include basic human needs such as . . . length of confinement, and out-of-cell time”). Mr. Bridges has met this showing. Defendants do not contest that Mr. Bridges has been subjected to extreme conditions of isolation for nineteen years, but effectively deny that he’s been denied basic human needs over this time period. Yet, such a period of time has been found sufficiently significant to violate the Eighth Amendment. See Shoatz v. Wetzel, No. 2:13–CV–657, 2016 WL 595337 (W.D. Pa. Feb. 12, 2016) (twenty- Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 12 of 30 13 two years); Ashker v. Brown, No. 09–5796, 2013 WL 1435148 (N.D. Cal. Apr. 9, 2013) (more than twenty years). As described in the Complaint and Declaration, Mr. Bridges has been subjected to extreme isolation and sensory deprivation continuously for those nineteen years. Finally, Defendants also contend that Mr. Bridges is not suffering psychological harms and mental anguish because he has no mental health diagnosis and has a stable mental health rating. Here again the Defendants misstate the constitutional inquiry. A prior mental health diagnosis is not required to allege a viable Eighth Amendment claim; rather, deprivation or degradation of mental health is sufficient. Indeed, courts have consistently found the Eighth Amendment prohibits segregation that causes a serious deprivation of mental health over a prolonged period. Ruiz v. Johnson, 37 F. Supp. 2d at 914 (“extreme levels of psychological deprivation” cause “pain and suffering”); Wilkerson supra, Shoatz supra, Ashker v. Brown, No. 4:09-cv-5796, Dkt. No. 191, Order Denying Mot. To Dismiss, *9 (N.D. Cal. Apr. 9, 2013) (“Plaintiffs’ asserted injuries – the symptoms of which include chronic insomnia, severe concentration and memory problems, anxiety, and other impairments – are sufficient to satisfy the objective component of their Eighth Amendment claim, considering the length of Plaintiffs’ exposure to these conditions.”). Indeed, the Williams court similarly did not require a mental health diagnosis to find that persons subjected to severe isolation such as that suffered by Mr. Bridges – even for a short period of time – experience such psychological impairments as: anxiety; panic; depression; post-traumatic stress disorder (PTSD); psychosis; hallucinations; paranoia; claustrophobia; and suicidal ideation. Williams, 848 F. 3d at 566. Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 13 of 30 14 As described above and in the Complaint, the combination of these conditions and their effects demonstrates that the Defendants have denied Mr. Bridges much more than a single, identifiable human need. It has deprived Mr. Bridges of all basic needs for human dignity and meets the standard for an Eighth Amendment violation. 2. Defendants’ Deliberate Indifference In his Complaint, Mr. Bridges alleges facts sufficient to plausibly establish the subjective requirement of his Eighth Amendment claim. Each of the Defendants was aware of the excessive risk that long-term solitary confinement causes severe emotional, mental, and physical damage. The risks of extended time, here nineteen years, in solitary confinement are so obvious no reasonable person can claim to be unaware of them. Wilkerson, 639 F. Supp. 2d at 680; see also McClary v. Kelly, 4 F. Supp. 2d 195, 208 (W.D.N.Y. Apr. 30, 1988) (That “prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science”). This Court can and should infer that Defendants know the risks posed by prolonged solitary confinement. Farmer, 511 U.S. at 842. The ruinous effects of long-term isolation are neither new, nor novel concepts, nor are they debatable. As early as 1986, twelve years before the Defendants placed Mr. Bridges in solitary confinement, scholarly articles raised the psychological harm of solitary confinement. See Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, 8 Int’l J.L. & Psychiatry 49 (1986) (“The more recent literature on this subject has also nearly uniformly described or speculated that solitary confinement has serious psychopathological consequences.”). The science since 1986 has consistently reached the same conclusion: even brief periods Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 14 of 30 15 of solitary confinement have significant adverse consequences on both psychological and physical health. See Williams, 848 F. 3d at 566-568 (discussing the scientific literature regarding isolation); Johnson 209 F. Supp. 3d at 779 (same). 1 As early as 1890, see In Re Medley, 134 U.S. at 170, and as late as February of this year, see Williams, 848 F. 3d at 570, the Courts have recognized the long-term deleterious mental and physical effects of long-term isolation. Moreover, in another case, Defendant Wetzel indicated his familiarity with “the work of Dr. [Craig] Haney, which sets forth at length the harmful effects of solitary confinement;” recognized “that ‘long term’ solitary confinement ‘certainly could’ have negative effects on mental health;” and acknowledged “that isolation should be used ‘only . . . in very narrow circumstances when it’s absolutely necessary.’” Johnson, 209 F. Supp. 3d at 779. Having acknowledged these principles, Defendant Wetzel, the sole individual with the power to move Mr. Bridges out of solitary confinement, can hardly claim a lack 1 See also, e.g., U.S. Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing at 2 (Jan. 2016) (recognizing that solitary confinement “can cause serious, long-lasting harm”); Erica Goode, Solitary Confinement: Punished for Life, N.Y. Times, Aug. 3, 2015, at D1; Jason Stromberg, The Science of Solitary Confinement: Research tells us that isolation is an ineffective rehabilitation strategy and leaves lasting psychological damage, Smithsonian Magazine, www.smithsonianmag.com/science-nature/science-solitary-confinement-180949793/?no- ist (Feb. 19, 2014); Kirsten Weir, Alone, in ‘the hole’: Psychologists probe the mental health effects of solitary confinement, Monitor on Psychology v.43, no. 5 at 54 (May 2012); Atul Gawande, Hellhole: The United States Holds tens of thousands of inmates in long-term solitary confinement. Is this torture?, The New Yorker, March 30, 2009; Stuart Grassian and Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, Int’l J. of Law and Psychiatry v. 8, issue 1 at 49-56 (1986); Richard H. Walters, John E. Callagan, and Albert F. Newman, Effect of Solitary Confinement on Prisoners, The American Journal of Psychiatry, v. 119, issue 8 at 771- 771 (1963). Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 15 of 30 16 of knowledge. Despite the clear evidence inferring knowledge as to all Defendants and the public acknowledgments of Defendant Wetzel, Defendants continued to hold Mr. Bridges in isolation without any penological purpose through September 28, 2017. Indeed, even after moving Mr. Bridges from death row, Defendants transferred him to an even more restrictive form of solitary—the Restrictive Housing Unit. This most recent transfer was made without providing Mr. Bridges with any indication of any individualized reasons justifying subjecting him to continued commitment in confinement. B. Mr. Bridges sets forth a cognizable Fourteenth Amendment claim for Defendants’ failure to provide Mr. Bridges with a meaningful opportunity to challenge his solitary confinement. To establish a plausible Fourteenth Amendment procedural due process claim, Mr. Bridges must allege facts sufficient to plausibly establish: (1) that he has a protected liberty interest, and (2) that the relevant review process was insufficient to protect that interest. See Wilkinson v. Austin, 545 U.S. 209 (2005). Mr. Bridges alleges facts sufficient to meet this showing. A due process liberty interest in the prison context involves “freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Williams, 848 F. 3d at 559. The Third Circuit applies a two-step inquiry in determining whether an “atypical and significant hardship” is demonstrated: “(1) the duration of the challenged conditions; and (2) whether the conditions overall imposed a significant hardship in relation to the Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 16 of 30 17 ordinary incidents of prison life.” Williams, 848 F. 3d at 560 (citing Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)). A comparison of the analysis applied in Williams demonstrates that Mr. Bridges’ circumstances far exceed these requirements. The Williams Court found the plaintiffs’ isolation on death row for six and eight years clearly met the duration requirement. Id. at 561. See also Shoats, 213 F.3d at 144 (concluding that “virtual isolation” for eight years establishes a liberty interest). Mr. Bridges has been committed to perpetual solitary confinement for 19 years. Mr. Bridges has adequately alleged that the specific procedures applied in his case are not constitutionally sufficient and that the process as applied to Mr. Bridges has been devoid of any meaningful review. Compl. ¶¶ 36-45. The process afforded Mr. Bridges during his prolonged isolation has failed to meet even the lower standards upheld in Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000). Mr. Bridges was effectively denied access to the ultimate decision maker regarding his status because the PRC hearings are irrelevant for the process of determining whether or not he should be released from confinement. Compl. ¶¶ 44-45. He further alleged that his PRC reviews are perfunctory proceedings and that the decision makers fail to consider the relevant evidence. Compl. ¶¶ 39-45. As in Williams, Mr. Bridges has alleged sufficient facts to support his claim that he has “a due process liberty interest in avoiding the extreme sensory deprivation and isolation endemic in confinement on death row” after his death sentence has been vacated. 848 F. 3d at 570. Defendants contend that under Wilkinson v. Austin, 545 U.S. 209 (2005), Defendants’ Capital Case Policy is sufficient to satisfy Due Process. They argue that “[w]hen an inmate is being held in the RHU solely based on his status as a capital case, Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 17 of 30 18 the only relevant fact to review to confirm his status is whether he remains a capital case.” Defs.’ Br. at 20. Defendants argue that the current policy complies with Due Process as applied to Mr. Bridges because the policy prevents “erroneous placement” in the Restrictive Housing Unit. Id. In reaching this conclusion, Defendants find the Capital Case Policy “sufficient to satisfy due process even if there is a liberty interest at stake.” Id. at 21. However, Williams demands more as Mr. Bridges is no longer under an active death sentence and has a constitutionally protected liberty interest in avoiding indefinite solitary confinement. Defendants’ reliance on the existence of a stay on Mr. Bridges’ grant of habeas relief as a basis for abrogating his liberty interest in removal from solitary confinement is meritless. Indeed, this situation has already been addressed by Williams as is demonstrated by the following points, which support Mr. Bridges’ claim that he was not under a valid death sentence once this Court vacated his conviction and sentence in 2013. First, the Third Circuit held that prisoners have a liberty interest in avoiding solitary confinement on death row “after they have been granted resentencing hearings.” Williams, 848 F.3d at 552. The Court noted that the plaintiffs in these consolidated cases, Craig Williams and Shawn Walker, had “their death sentences vacated, but several years elapsed before they were resentenced to life without parole.” Id. at 553. The Court defined “vacated” in footnote 4 of the opinion: “‘Vacated’ as used throughout this opinion refers to situations where a defendant has been initially sentenced to death, but has subsequently been granted a new sentencing hearing.” Id. at 553 n.4. It is the “grant[ing] of a new sentencing hearing,” without reference to any appeal by the Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 18 of 30 19 prosecution or the future prospects of re-imposing a death sentence via an appeal or a re- sentencing, that the court defined as vacate. Mr. Bridges was granted a new sentencing hearing in 2013, a decision affirmed by the Third Circuit on September 1, 2017. He has not been under a legally valid, “active,” death sentence for more than 4 years, and thus Williams controls. Second, the Defendants’ argument on the significance of a stay is based on the untenable position that an appeal accompanied by a stay somehow leaves Mr. Bridges with an “active” death sentence. Defs.’ Br. at 5-6. The plain definition, however, of both “appeal” and “stay” demonstrate the falsity of this assertion. An appeal is “[a] proceeding undertaken to have a decision reconsidered by a higher authority; especially, the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal.” Black’s Law Dictionary 105 (8th ed. 2004) (emphasis added). A decision that requires reversal indicates that it is the controlling decision of the case unless and until it is reversed. The original imposition of the death sentence in Mr. Bridges case, as well as his conviction, do not become legally valid by the mere taking of an appeal by the Commonwealth, as that appeal only provides the possibility of reversal. Thus, the (criminal) sentence and penalty imposed by the trial court is unlawful and hence it is void and inactive. The stay of the court’s order cannot render the original sentence lawful and active either. A stay is “the postponement or halting of a proceeding, judgment, or the like. . . . An order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding.” Black’s Law Dictionary 1453 (8th ed. 2004). “Suspend” means “to cause to stop temporarily.” Merriam Webster-Dictionary, https://www.merriam- Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 19 of 30 20 webster.com/dictionary/suspend (last visited Sept. 20, 2017). In the context of the district court’s habeas grant, it simply means the implementation of the order to retry or release Mr. Bridges is temporarily postponed/halted/suspended pending the normal course of the appellate process. Nowhere in the definition of a stay can one find the concept that it renders a lower court’s decision legally invalid – that requires more than an appeal and a stay, namely, it requires prevailing on the appeal. Third, both Craig Williams and Shawn Walker were in procedurally analogous postures to Mr. Bridges vis-à-vis their criminal cases. The only distinctions are that Williams and Walker were in state court and the Commonwealth was not appealing the reversal of their sentences. Williams, 848 F.3d at 555-56. Since both had won reversals of their death sentences but continued state court appeals of their convictions, the Court of Common Pleas was not permitted under the Pennsylvania Rules of Appellate Procedure to resentence either until the completion of the appellate process. 210 Pa.R.A.P. § 1701 (“[A]fter an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”). Just as in the federal courts, the trial court may “[t]ake such action as may be necessary to preserve the status quo[.]” Id. at (b)(1). In other words, there is a de facto stay on further proceedings until the appellate process runs its course, a situation structurally and functionally indistinguishable from that found in the federal courts in Mr. Bridges’ case subsequent to the grant of habeas relief in 2013. Since the procedural halting of proceedings in the state criminal courts was insufficient to deny plaintiffs’ liberty interest in Williams, the same result must follow in this case. Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 20 of 30 21 Fourth, the Williams court explicitly disavowed Defendants’ argument that ongoing appeals justified the decision to hold Williams and Walker on the row: Defendants’ argument that Plaintiffs are responsible for the length of these periods of confinement because they initiated prolonged appeals of their convictions is 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.72. Defendants’ contention that the Commonwealth’s exercise of its appellate rights somehow compels a different result therefore must fail. Not only does an appeal and a stay fail to render an unlawful sentence lawful (that requires an actual reversal), but it would be a patently unjust and incoherent rule of procedure if the government’s exercise of its appellate rights were accorded more substantive weight than that of individuals like Williams, Walker, and Bridges. Indeed, it would require something akin to a presumption that the government’s appeal will prevail. This is not the law.2 Fifth, in Williams, the Defendants argued that death row was appropriate for Mr. Williams and Mr. Walker even after their death sentences had been vacated since those plaintiffs “remain[ed] eligible for the death penalty.” 848 F.3d at 564. Defendants’ argument in the case sub judice is indistinguishable and therefore must also fail. Here, Defendants are asserting that Mr. Bridges remains eligible for the death penalty; the only difference is that procedurally it could still be re-imposed by the Third Circuit or the U.S. Supreme Court if the Commonwealth’s appeals are granted and the district court and 2 The Defendants do not seem to have thought through the consequences of their argument. If an appeal and stay had the effect they assert it does, then they would have to empty death row of all who have appealed their conviction and/or sentence, as those appeals stay any execution of the death sentence and could result in reversals of the sentence. Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 21 of 30 22 Third Circuit decision from this month are reversed. As it currently stands now, however, Mr. Bridges’ conviction and sentence have been found to be unconstitutional by the U.S. District Court for the Eastern District of Pennsylvania and the Third Circuit Court of Appeals and, as demonstrated in the preceding argument, are not legally valid or “active.” Because Mr. Bridges does not have a legally valid or active death sentence, Defendants are not bound by state law to keep him on death row or in solitary confinement. The state statute only requires the DOC to house individuals who have an active death warrant on death row in solitary confinement. 61 Pa. C.S. § 4303. Further, the Third Circuit has already instructed the DOC that their policy is not relevant to the constitutional analysis. Williams, 848 F.3d at 565. Moreover, despite Defendants’ arguments to the contrary, see Defs.’ Brief at 13-15, Heck v. Humphrey, 512 U.S. 477 (1994) does not bar Mr. Bridges from seeking relief under §1983. Bridges is not seeking to challenge the fact or duration of his confinement in this proceeding. Mr. Bridges already received a ruling granting him that relief in his habeas proceeding. Rather, Mr. Bridges is seeking removal from solitary confinement following the invalidation of his criminal conviction and death sentence and monetary damages on the grounds that his constitutionally protected liberty interest in avoiding indefinite solitary is not abrogated by the issuance of a stay pending appeal. To re-characterize Mr. Bridges’ challenge as barred by Heck seriously misconstrues the factual substance of his complaint and the legal arguments supporting the relief he seeks. Sixth, the Third Circuit ordered Mr. Bridges released from solitary confinement “immediately” on September 1, 2017, citing to Williams. Op. at 20, Bridges v. Secretary, Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 22 of 30 23 Pennsylvania Department of Corrections, Nos. 13-9000 & 13-9001 (3d Cir. Sept. 1, 2017) (“Sept. 2017 3d Cir. Op.”) . This Court should presume that the Third Circuit issued that order in full awareness of the potential for the Commonwealth to file a petition for a rehearing or for certiorari. That the order pertaining to Mr. Bridges’ conditions was made without equivocations and not made contingent upon the Commonwealth not taking an appeal shows that the Third Circuit did not consider that possibility relevant to the matter. Seventh, and most important, the U.S. Supreme Court and Third Circuit’s test for ascertaining a liberty interest has nothing to do with a prisoner’s sentence or the procedural posture of their criminal case. This was emphasized in Plaintiff’s brief in support of the motion for preliminary injunction. Dkt. 2-1, Pl.’s Br. in Supp. of Mot. for Prelim. Inj., p. 5. This Court is to compare Mr. Bridges’ nineteen years in solitary confinement to conditions in “the general population” in order to determine if a liberty interest is present. Williams, 848 F.3d at 563-64. For the foregoing reasons, Mr. Bridges is therefore entitled to the procedural protections deemed sufficient to satisfy Due Process under Williams. In Williams, the Third Circuit found the procedures established in Shoats3 to provide procedural protections that were adequate—namely, “regular and meaningful review of . . . continued placement on death row.” Williams, 848 F.3d at 576. Indeed, the Third Circuit made sure to emphasize that “[t]he review we found adequate in Shoats is not an inconvenient ritual intended to shelter officials from liability so that they may mechanically continue an inmate’s confinement on death row after a sentence of death 3 Although Defendants distinguish Shoats and Johnson, the Williams court specifically relied on these cases in reaching its holding. Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 23 of 30 24 has been vacated without fear of sanction.” Id. at 575-76. Rather, prisoners, who like Mr. Bridges have had their death sentences vacated are entitled to procedural protections that included at least “a statement of reasons for the continued placement on death row . . . [and] a meaningful opportunity to respond to the reasons provided. Id. at 576; see also Wilkinson, 545 U.S. at 226 (noting that a short statement or reasons by the decisionmaker “guards against arbitrary decisionmaking while also providing the inmate a basis for objection before the next decisionmaker or in a subsequent classification review.”); Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983) (“Of course, administrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates.”). The Capital Case Policy does not provide these procedural protections, instead consisting of automatic, non-reviewable placement in solitary confinement even when – as in Mr. Bridges’ case – there is no security justification for such isolation. Therefore, the Program Review Committee’s review does not comport with the Due Process guarantees required for individuals who have had their death sentences vacated under Williams and fails to provide Mr. Bridges with regular and meaningful review of his placement in solitary confinement. C. Mr. Bridges has a valid substantive due process claim under the Due Process Clause for Defendants’ actions to continue to hold Mr. Bridges in solitary confinement for nearly 20 years without a valid penological or other justification. When the state action is executive in nature, a substantive due process violation occurs where executive action “may fairly be said to shock the contemporary conscience.” Evans v. Sec’y of Dept. of Corr., 645 F.3d 650, 660 (3d Cir. 2011) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). “[I]n the custodial situation Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 24 of 30 25 of a prison, forethought about an inmate’s welfare is not only feasible, but obligatory,” and therefore a “deliberate indifference” standard of culpability is appropriate for establishing a conscience-shocking conduct. Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999) (quoting Lewis, 523 U.S. at 851). Defendants held Mr. Bridges in solitary confinement for nearly 20 years without a valid penological or other justification. It is important to recall that the death sentence has been asserted as a sufficient justification for the DOC’s policy of indefinite, automatic, non-reviewable solitary confinement because such individuals have “nothing left to lose.” Id. at 565 n.100 (noting the lower court adopted the argument that capital case individuals have “nothing left to lose”). As the Third Circuit pointed out, “the vacatur of Plaintiffs’ death sentences made life theirs to lose. This is precisely why an individualized assessment of the necessity of continued confinement of inmates like Plaintiffs on death row by the PRC is so necessary.” Id. at 575 n.180 (emphasis in original). It is obvious that Mr. Bridges has everything left to lose if he violates the rules or criminal laws after he is moved to the general population: contact visits, more frequent phone calls, access to programs, dramatically greater out of cell time, powerful mitigation evidence of nineteen years without any serious rule violations, and the risk of a further criminal charge when he has the prospect of someday returning to his home and his community. That a person like Mr. Bridges, whose conviction and sentence have been overturned by two federal courts, has everything left to lose is beyond dispute. For the reasons alleged in the Complaint, Defendants’ conduct shocks the conscience and does not have a rational basis. Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 25 of 30 26 D. Defendants are not entitled to qualified immunity “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as 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 (1982); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”). For the purposes of determining whether a constitutional right is clearly established, it is not required that there be “a case directly on point.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Rather, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. Yet, as the Third Circuit noted in Williams, the facts of the existing precedent need not perfectly match the circumstances of the dispute in which the question arises. “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Williams, 848 F.3d at 570 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “Requiring that precedent and subsequent disputes rest on identical facts would license state actors to violate constitutional rights with impunity simply by varying some irrelevant aspect of constitutional violations.” Id. Mr. Bridges’ death sentence was vacated nearly four years ago. For the reasons mentioned above, the existence of a stay and the accompanying appeal do not render the court order vacating his conviction and sentence invalid. The Williams decision clearly established that death-sentenced prisoners granted a resentencing hearing have a protected liberty interest in avoiding long-term solitary confinement. Having found a constitutional right had been violated, the court proceeding by determining whether the Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 26 of 30 27 constitutional right was clearly established. Although the Third Circuit held that the constitutional right had not been established prior to the Williams decision, the court certainly made clear that after that decision there could be no dispute that the right was clearly established. Williams, 848 F.3d at 574 (“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.”). Defendants contend that they are entitled to qualified immunity because there is no clearly established law prohibiting them from holding prisoners with active death sentences in segregated custody, prolonged isolation, or solitary confinement. However, as explained above, Mr. Bridges does not have an active death sentence, and the existence of a stay accompanying an appeal does not change the legal validity of the district court order vacating his conviction and the Third Circuit order’s affirming the district court. Therefore, Mr. Bridges is entitled to relief under Williams, and because the law was clearly established after Williams, he is also entitled to damages for his constitutional injury. Defendants also maintain that they were “obligated to follow Section 4303 with respect to the conditions of his confinement” because they deemed Mr. Bridges to have an active death sentence, and that “compliance with state law . . . entitles [them] to qualified immunity.” Defs.’ Br. at 25 (citing 61 Pa. C.S. § 4303). However, qualified immunity is available only where executive officials are performing discretionary functions. Harlow, 457 U.S. at 816; see also People of Three Mile Island Through Three Mile Island Alert, Inc. v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 143 (3d Cir. 1984) (“Executive officials performing discretionary, as opposed to ministerial, functions are Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 27 of 30 28 entitled to qualified immunity from suit.”). Here, the ministerial duty exception to qualified immunity applies because Section 4303 “specif[ies] the precise action that the [Defendants] must take in each instance,” Davis v. Scherer, 468 U.S. 183, 196 (1984), and “leaves no room for discretion.” Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204, 210–11 (3d Cir. 2001) (quoting Sellers v. Baer, 28 F.3d 895, 902 (8th Cir.1994)). Therefore, Defendants are not entitled to qualified immunity. Finally, even if Mr. Bridges did have an active death sentence—which he does not—the Williams decision taken together with the Shoats decision should have provided the Defendants with clear notice that the right was clearly established. In Williams, the court’s reliance on Shoats—a case not involving a death-sentenced prisoner—should have provided the DOC with notice that there was a constitutionally protected liberty interest in avoiding prolonged isolation in solitary confinement on death row. Although the court in Williams was not prepared to hold that Shoats was sufficient for the purposes of clearly establishing a due process liberty interest in avoiding prolonged solitary confinement on death row, the court also noted that the “interest in avoiding extreme seclusion in Shoats was analogous to Plaintiffs’ liberty interest, id. at 570, even though Shoats was not held on death row. The Third Circuit emphasized that the conditions in Shoats “closely mirror those Plaintiffs suffered.” Id. Moreover, in its analysis, the Williams court specified that the appropriate baseline in assessing whether there is a constitutionally protected liberty interest was the general population, not conditions specific to the prisoner, Williams, 848 F.3d at 564, and not state law, id. at 565, as the Defendants imply. Defs.’ Br. at 21-22. Thus, the Williams court’s pronouncement on Shoats is sufficient to put reasonable officials on notice that their conduct would have Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 28 of 30 29 violated clearly established law—namely, Mr. Bridges’ due process interest in avoiding solitary confinement on death row. V. CONCLUSION For the reasons set forth above, Plaintiff Shawnfatee Bridges respectfully requests that this Court deny Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, in its entirety. Respectfully submitted, /s/ Bret D. Grote Bret D. Grote PA I.D. No. 317273 Jamelia N. Morgan* NY I.D. No. 5351176 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 654-9070 bretgrote@abolitionistlawcenter.org *Admitted to practice pro hac vice /s/ Michael D. O’Donnell Peter G. Rossi PA I.D. No. 32238 Michael D. O’Donnell PA I.D. No. 318706 Katie S. Rabinowitz PA I.D. No. 323617 Cozen O’Connor 1650 Market St., Suite 2800 Philadelphia, PA 19103 (215) 665-6932 mdodonnell@cozen.com Counsel for Plaintiff Dated: October 5, 2017 Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 29 of 30 30 CERTIFICATE OF SERVICE I certify that, on this day, I caused a true and correct copy of the foregoing Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss Or, In the Alternative, For Summary Judgment to be served on all counsel of record via the Court’s ECF system. Dated: October 5, 2017 /s/ Jamelia N. Morgan Jamelia N. Morgan* NY I.D. No. 5351176 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (650) 387-8582 jamelia@alcenter.org *Admitted to practice pro hac vice Case 2:17-cv-03443-AB Document 30 Filed 10/05/17 Page 30 of 30