Bridges v. Wetzel et al

REPLY to Response to Motion re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or, in the Alternative, for Summary Judgment

E.D. Pa.October 12, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _________________________________________ : SHAWNFATEE BRIDGES, : : Plaintiff, : : v. : : JOHN E. WETZEL, et al., : : Defendants. : _________________________________________ CIVIL ACTION No. 17-3443 DEFENDANTS’ REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Defendants John E. Wetzel, Shirley Moore-Smeal, Michael Wenerowicz, Cynthia Link, Laura Banta, and Dennis Brumfield (collectively “Defendants”), by counsel, respectfully submit this reply memorandum of law in further support of their Motion to Dismiss or, in the Alternative, for Summary Judgment (“Motion”). I. INTRODUCTION AND UPDATED STATUS Many of the issues in this case have been resolved since the Motion was filed. Following a Third Circuit decision affirming the Habeas Order1—which was stayed by rule when the Commonwealth filed a petition for rehearing—the Third Circuit on September 25, 2017, issued a final order making the writ effective and directing that Plaintiff “shall be held in an appropriate setting for a person in his status as an unconvicted pretrial detainee.” Order, Bridges v. Sec’y Pa. 1 Defendants incorporate the terms defined in their initial memorandum of law. See ECF No. 12. Additionally, Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 30) will be referred to as “Pl. Mem.” and Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion for a Preliminary Injunction and in Support of their Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 12) will be referred to as “Def. Mem.” Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 1 of 9 2 Dep’t of Corr., CA No. 13-9000 & 13-9001 (3d Cir. Sept. 25, 2017). As stated on the record by counsel for the Department and counsel for the Berks County jail, Plaintiff was transferred into county custody as a pretrial detainee on September 28, 2017. ECF No. 29 (minute entry of proceedings); see also ECF No. 27 (letter to Court dated September 29, 2017 indicating Plaintiff’s transfer). The Court accordingly dismissed the Injunction Motion as moot. ECF No. 28. For the same reason, the Court should dismiss any claim for a permanent injunction as moot.2 This leaves the Court with a narrow issue—whether Plaintiff is entitled to money damages under Section 1983 for Defendants’ decision to house him on death row while his death sentence was active and while the decision vacating his conviction was stayed. He is not. This lingering claim is most directly resolved under the doctrine of qualified immunity.3 It was not clearly established that it was unconstitutional for Defendants to hold Plaintiff on death row prior to the Third Circuit’s final order. Until that order, Plaintiff’s writ of habeas corpus had been stayed, first by this Court and later by the Rules of Appellate Procedure when the petition for rehearing was filed. Plaintiff’s response—that the Habeas Stay did not stay the effectiveness of the Habeas Order—is not only at odds with legal authority and common sense, but it directly contradicts a prior ruling of this Court. See Death Row Order at 3 n.2 (“[Plaintiff’s] conviction and sentence remain in effect because this Court stayed the judgment 2 There is no reasonable expectation that Plaintiff will again be incarcerated in the posture that led to this lawsuit. See Providence Pediatric Med. Daycare Inc. v. Alaigh, 672 Fed. Appx. 172, 175 (3d Cir. 2016) (stating legal standard for mootness of a constitutional injunction claim). Even if he is again convicted and returns to Department custody, he will be subject to that new sentence, removing any issues related to his previous conviction and sentence. 3 In response to the Motion, which is presented under both Rule 12 and Rule 56, Plaintiff elected not to supplement the factual record. Indeed, the material facts underlying qualified immunity and the constitutional claims are not in dispute. The Court can thus fairly consider any material in the record and grant either dismissal with prejudice or summary judgment in Defendants’ favor. Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 2 of 9 3 and order granting [his] conditional writ of habeas corpus.” (emphasis added)). Each of Plaintiff’s constitutional claims thus collapses like a poorly constructed house of cards because each is premised on the legal fallacy that the writ of habeas corpus was not actually stayed. In sum, it was reasonable for Defendants to operate as if Plaintiff’s sentence remained legally valid up until it was no longer legally valid, and thus they are entitled to judgment in their favor. II. ARGUMENT A. It Is Not Clearly Established That It Was Unconstitutional to Hold Plaintiff in Death Row While This Court’s Habeas Order Was Stayed. The parties agree that the applicable standard on qualified immunity is whether binding precedent has placed the legal question “beyond debate.” See Pl. Mem. at 26; Def. Mem. at 21 (both citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Plaintiff contends that the Third Circuit’s February 2017 Williams decision “clearly established that death-sentenced prisoners granted a resentencing hearing have a protected liberty interest in avoiding long-term solitary confinement.” See Pl. Mem. at 26-27. This argument fails for two reasons: (1) it effectively concedes that Defendants are entitled to qualified immunity on the Eighth Amendment and substantive due process claims, because Williams dealt solely with procedural due process; and (2) Williams is easily distinguishable because, unlike the inmates there who were held without an active sentence, Plaintiff had a valid death sentence while the Habeas Order was stayed. Plaintiff’s contention that he did not have a valid conviction or sentence following the Habeas Stay not only contradicts this Court’s previous ruling, see supra Section I (citing Death Row Order at 3 n.2), it is directly at odds with another district court which recently held that, while an order vacating an inmate’s death sentence has been stayed pending appeal, the inmate’s death sentence “is still operative and his continued confinement [on death row] does not violate Williams.” Porter v. Pa. Dep’t of Corr., No. 17-cv-763, 2017 WL 4099784, at *2 (W.D. Pa. Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 3 of 9 4 Sept. 15, 2017). Plaintiff offers no explanation or rebuttal to Porter, notwithstanding that it was filed as supplemental authority in support of Defendants’ Motion. See ECF No. 22. It is impossible based on the statements in Porter and the Death Row Order for Plaintiff to show that his position was beyond debate, and thus it cannot survive qualified immunity. In support of his argument, Plaintiff makes two errors: he conflates a stay with an appeal, and he misreads the definition of “stay.” First, Plaintiff contends that his conviction and death sentence “do not become legally valid by the mere taking of an appeal by the Commonwealth” from the order granting habeas relief. See Pl. Mem. at 19. But nobody said it did. The Habeas Stay is distinct from the appeal, which is why it was entered as a separate order after the Habeas Order and notice of appeal. It is the stay, not the appeal, that affects the order. Second, citing Black’s Law Dictionary, Plaintiff argues that “[n]owhere in the definition of a stay can one find the concept that it renders a lower court’s decision legally invalid.” See Pl. Mem. at 20. Reading the same definition, however, the Supreme Court found that very concept. See Nken, 556 U.S. at 428-29 (by “halting or postponing some portion of the [judicial] proceeding,” a stay pending appeal “temporarily divest[s] an order of enforceability” and “temporarily suspend[s] the source of authority to act”); see also Def. Mem. at 10. Unsurprisingly, Plaintiff offers no legal authority supporting his reading of the definition. Defendant’s interpretation of the Habeas Stay was clearly reasonable, if not absolutely correct. Thus, unlike the inmates in Williams, Plaintiff did not have an order vacating his sentence merely on appeal, but one stayed pending appeal. Defendants are thus entitled to qualified immunity from any damages claim. Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 4 of 9 5 B. Plaintiff Had No Due Process Liberty Interest While Being Held on Death Row Pursuant to a Death Sentence. Plaintiff acknowledges that, as a first step in establishing a due process claim, he must show a protected liberty interest, which requires an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” See Pl. Mem. at 16 (quoting Sandin). However, nowhere does Plaintiff cite any law supporting the claim that he had a liberty interest in avoiding confinement under the terms of the Capital Case Policy. There is no case standing for the proposition that the conditions of death row present an atypical or significant hardship for inmates with an active death sentence, even where there is a stayed order vacating that sentence. Plaintiff relies entirely on Williams, but the case ultimately contradicts his position—it explicitly distinguishes inmates in Plaintiff’s position from its holding. See Williams, 848 F.3d at 569 (where an inmate’s death sentence “had not been vacated . . . confinement on death row was not a significant or atypical hardship” (emphasis in original)); see also Def. Mem. at 18. Because of the Habeas Stay, Plaintiff’s sentence remained valid (i.e. it was not yet vacated) while he was incarcerated on death row. See supra, Section II.A. He thus had no liberty interest at stake. Plaintiff contends that his confinement on death row for 19 years establishes a liberty interest, comparing it to the “six and eight years” spent on death row by the Williams plaintiffs, respectively. See Pl. Mem. at 17. But by comparing apples and oranges, Plaintiff actually demonstrates why he did not have a liberty interest at stake. The six- and eight-year figures in Williams were not each inmate’s total time on death row, but rather they measured only the time on death row without an effective death sentence. See 848 F.3d at 554 (“Walker spent approximately twenty years on death row. Roughly eight of those years were spent after he had been granted a resentencing hearing. Williams spent twenty-two years on death row, with six of those years following his grant of resentencing.”). In other words, by counting only the time they Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 5 of 9 6 awaited resentencing for due process purposes, the Third Circuit shows that an inmate’s liberty interest does not kick in until after his death sentences is no longer valid. Using this yardstick, Plaintiff’s liberty interest could not begin until after the Habeas Order was finally effective—no earlier than September 25, 2017, three days before he was transferred to county custody.4 C. Plaintiff Does Not Dispute That the Capital Case Policy Offers Sufficient Procedural Protections for Capital Inmates. It does not appear that Plaintiff challenges that the Capital Case Policy provides sufficient procedural protections satisfying due process for death row inmates. In other words, he does not appear to contend that it is unconstitutional to hold any death row inmates under the conditions of the Capital Case Policy. Indeed, if he did, it would contradict the Supreme Court’s ruling in Wilkinson upholding a policy that placed all inmates convicted of “certain offenses” in Supermax facilities. See Def. Mem. at 15-17. Instead, Plaintiff claims that he was different than other death row inmates because he was “no longer under an active death sentence,” and thus he was wrongfully detained on death row. See Pl. Mem. at 18. But again, this entire argument turns on the incorrect assumption that his death sentence was not effective during the stay. Wilkinson requires procedures sufficient to ensure that Plaintiff was not erroneously placed under the conditions of death row. The Capital Case Policy establishes sufficient procedures, and those procedures worked effectively in this case. Plaintiff was never held on death row without an effective death sentence. Thus, his due process rights were never violated. 4 Plaintiff notes the days between the Third Circuit’s initial order affirming the Habeas Order but before it was stayed by rule following the petition for rehearing. See Pl. Mem. at 22- 23. This and other similar periods of time during Plaintiff’s criminal process are far too small to create any liberty interest as a matter of law. See Sandin, 515 U.S. at 485-86 (detention in restrictive custody for 30 days did not establish a liberty interest); see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (administrative custody for 15 months did not implicate liberty interest). Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 6 of 9 7 D. Plaintiff Provides No Basis to Disregard Binding Authority Holding that the Capital Case Policy Satisfies the Eighth Amendment. Plaintiff does not dispute that Peterkin holds that the Capital Case Policy satisfies the Eighth Amendment—that is, that it is not cruel and unusual punishment to hold death row under the conditions of the Capital Case Policy. Instead, Plaintiff contends that this Court should not follow Peterkin because it “was decided nearly 30 years ago,” and in that time “the law . . . has evolved,” and “research . . . has developed.” See Pl. Mem. at 10. This argument fails. First, it ignores that Third Circuit panel decisions have reaffirmed the core Eighth Amendment reasoning of Peterkin as recently as 2009 and 2013. See Def. Mem. at 11 (citing Jones and Gattis). Second, nothing in Plaintiff’s policy argument shows why Peterkin is no longer good law—it simply attempts to relitigate the issue. In order to move beyond this binding precedent, Plaintiff must point to new Supreme Court authority demonstrating that Peterkin “no longer has any vitality or is patently inconsistent with subsequent legal developments.” See United States v. Stimler, 864 F.3d 253, 263 (3d Cir. 2017) (citations and internal quotation marks omitted; emphasis in original). Plaintiff’s argument—that Peterkin is simply outdated—does not cite any intervening legal authority and thus fails this test. Absent a reversal from an en banc Third Circuit or a ruling from the Supreme Court, see Stimler, 864 F.3d at 263, Peterkin remains binding precedent on this Court with respect to the constitutionality of the Capital Case Policy under the Eighth Amendment.5 E. Plaintiff Cites No Facts or Law Supporting the Claim That Prison Officials Violated Plaintiff’s Substantive Due Process Rights. Plaintiff contends that Defendants’ decisions regarding his confinement status “shocks the conscience,” but it appears this argument reflects simply his subjective or policy viewpoint 5 Of course, at the very least it was reasonable for Defendants to rely on Peterkin, which entitles them to qualified immunity. Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 7 of 9 8 rather than any principle of law. See Pl. Mem. at 25.6 He cites the Third Circuit’s analysis in Williams, but that case explicitly did not address substantive due process. See 848 F.3d at 553 n.8. Plaintiff provides no other legal authority tending to show that the executive action alleged here—holding Plaintiff under the conditions of death row—was so arbitrary that it rose to the level of “conscience shocking” deliberate indifference. See Def. Mem. at 19. He has failed to state a substantive due process claim. III. CONCLUSION Wherefore, this Court should grant Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment. It should dismiss all claims against all Defendants. Dated: October 12, 2017 Respectfully submitted, JOSH SHAPIRO Attorney General COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL 21 South 12th Street, 3rd Floor Philadelphia, PA 19107-3603 Telephone: (215) 560-2940 Fax: (717) 772-4526 skovatis@attorneygeneral.gov BY: /s/ Stephen R. Kovatis STEPHEN R. KOVATIS (Pa. No. 209495) Deputy Attorney General KENNETH L. JOEL Chief Deputy Attorney General Chief, Litigation Section 6 It also appears to reflect Plaintiff’s position that confinement under the terms of the Capital Case Policy shocks the conscience because it constitutes cruel and unusual punishment. However, this improperly conflates due process with an Eighth Amendment claim. See Def. Mem. at 19-20 (claims should not be analyzed under substantive due process when they implicate other expressed provisions of the Constitution). Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 8 of 9 9 CERTIFICATE OF SERVICE I certify that, on this day, I caused a true and correct copy of the foregoing Reply Memorandum of Law in Further Support of Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment to be served on the following via ECF: Peter G. Rossi Katie Shaw Rabinowitz Michael D. O’Donnell COZEN O’CONNOR 1650 Market Street Philadelphia, PA 19103 prossi@cozen.com krabinowitz@cozen.com mdodonnell@cozen.com Bret Grote Jamelia N. Morgan ABOLITIONIST LAW CENTER P.O. Box 8654 Pittsburgh, PA 15221 bretgrote@abolitionistlawcenter.org Counsel for Plaintiff Dated: October 12, 2017 /s/ Stephen R. Kovatis Stephen R. Kovatis Case 2:17-cv-03443-AB Document 32 Filed 10/12/17 Page 9 of 9