Robert Wilkerson v. Richard Stalder

Case: 13-31289 Document: 00512874075 Page: 1 Date Filed: 12/17/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

December 17, 2014

No. 13-31289 Lyle W. Cayce

Clerk

ROBERT KING WILKERSON; ALBERT WOODFOX; VICTORY WALLACE;

BARBARA WALLACE MARSHALL; LORRAINA WALLACE ANDERSON;

JUSTINA WALLACE WILLIAMS,

Plaintiffs - Appellees

v.

JERRY GOODWIN, Warden, David Wade Correctional Center, in his official

and individual capacity; JAMES ARNOLD, Deputy Warden of Security,

David Wade Correctional Center, in his official and individual capacities;

LONNIE NAIL, Lieutenant Colonel, David Wade Correctional Center, in his

official and individual capacities; MARK HUNTER, Classification Officer,

David Wade Correctional Center, in his official and individual capacities;

HOWARD PRINCE, Warden, Elayn Hunt Correctional Center, in his official

and individual capacities; GREG MCKEY, Assistant Warden of Security,

Elayn Hunt Correctional Center, in his official and individual capacities;

BETTY JOHNSON, Lieutenant Colonel, Elayn Hunt Correctional Center, in

her official and individual capacities; KEVIN DURBIN, Lieutenant Colonel,

Elayn Hunt Correctional Center, in his official and individual capacities;

JEFFREY GLADNEY, Classification Officer, Elayn Hunt Correctional

Center, in his official and individual capacities; CHRIS EVANS,

Defendants - Appellants

Appeal from the United States District Court

for the Middle District of Louisiana

Before KING, GRAVES, and HIGGINSON, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

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Plaintiff-Appellee Albert Woodfox asserts a Fourteenth Amendment

procedural due process claim against various prison officials at the David Wade

Correctional Facility (“Wade”) in Louisiana, arising out of his lengthy and

continuing incarceration in solitary confinement. The district court denied the

defendant prison officials’ motion for summary judgment based on qualified

immunity. We affirm.

I. Factual and Procedural Background

Plaintiff Albert Woodfox asserts that his solitary confinement, which has

now lasted nearly thirty-nine years, persists indefinitely without justification

and without adequate procedural protections, in violation of the constitutional

guarantee of due process. Woodfox and his previous co-plaintiff, Herman

Wallace, were originally placed in closed-cell restriction (“CCR”), also referred

to as “extended lockdown,” in the Louisiana State Penitentiary at Angola

(“LSP”) in 1972 after they were suspected of the murder of corrections officer

Brent Miller, a crime for which they were subsequently convicted. With the

exception of a three-year transfer to a parish jail and a brief period in which

he was housed in a dormitory setting at LSP, Woodfox has been held

continually in CCR. He was transferred to CCR at Wade in November 2010,

where he continues to be held.

The district court found, and the record supports, that CCR at both LSP

and Wade is the effective equivalent of solitary confinement. The district court

described the conditions in CCR as follows:

Extended lockdown, also known as closed cell restrictions or

administrative segregation, is a form of incarceration at LSP,

Hunt, and Wade that is similar to solitary confinement. The

prisoners thereto assigned remain alone in cells approximately 23

hours each day. During the other hour, a prisoner may shower and

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walk along the tier in which his cell is located. Three times a week,

the prisoner may use this hour to exercise alone in a fenced yard,

if the weather permits. The prisoners in extended lockdown also

face additional restrictions on privileges generally available to

inmates such as personal property, reading materials, access to

legal resources, work, and visitation rights. In contrast, inmates

in the general prison population live in a dormitory setting where

they can interact with one another, attend religious ceremonies

and take advantage of educational opportunities, training, and

other privileges denied to those in extended lockdown.

Wilkerson v. Stalder (Wilkerson II), No. 3:00-CV-304, 2013 WL 6665452, at *2

n.5 (M.D. La. Dec. 17, 2013) (order denying summary judgment). The inmates

in CCR appear before a review board every ninety days. Woodfox asserts that

he receives inadequate “sham” reviews before the board. The district court

reviewed the evidence submitted regarding the review boards and concluded

that “the Plaintiffs’ placement in CCR was and remains indefinite.” Id. at *9.

When the summary judgment motion was decided in the district court

and briefed in this court, Herman Wallace’s due process claim against prison

officials at the Elayn Hunt Correctional Facility (“Hunt”) was still pending,

asserted by his family after his death in October 2013. 1 Wallace was held in

CCR at LSP and Hunt for over forty years. After oral argument, counsel

informed us that Wallace’s claims against the Hunt officials have now been

settled and dismissed, and thus are no longer at issue in this appeal.

The underlying litigation has a lengthy procedural history, which we

briefly summarize to give the necessary context to the current appeal.

Plaintiffs originally filed this § 1983 action against various LSP officials and

1 Wallace’s murder conviction was overturned by the district court on a habeas motion

in October 2013, and he was released. He died three days later of liver cancer.

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the Louisiana Secretary of Corrections (collectively “LSP Defendants”) in 2000,

when Woodfox and Wallace had each been held in solitary confinement for over

twenty years. 2 They asserted that the LSP Defendants violated their First,

Eighth, and Fourteenth Amendment rights by keeping them in such prolonged

solitary confinement. Plaintiffs sought compensatory and punitive damages,

as well as an injunction ordering that they be removed from CCR and housed

with the general prison population. The district court denied the LSP

Defendants’ Rule 12(b)(6) motion to dismiss the due process claims based on

qualified immunity. On appeal, this court affirmed the denial of the motion to

dismiss. Wilkerson v. Stalder (Wilkerson I), 329 F.3d 431, 436 (5th Cir. 2003).

The LSP Defendants subsequently filed for summary judgment on the basis of

qualified immunity, arguing that the Plaintiffs’ placement in CCR was an

initial security classification that implicated no due process rights. The district

court denied that motion, holding that genuine issues of material fact

precluded summary judgment and, alternatively, that the extraordinary

duration of the solitary confinement gave rise to a protected liberty interest.

Wilkerson v. Stalder, No. 3:00-CV-304 (M.D. La. Feb. 1, 2005) (report and

recommendation of the magistrate judge, adopted by the district court on

March 30, 2005). The LSP Defendants did not appeal that ruling.

Woodfox was transferred to Wade in November 2010 and was

immediately placed in a newly-created CCR unit, where he has remained ever

2 A third plaintiff, Robert King Wilkerson, was placed in CCR after he was transferred

to LSP in 1973, after he was accused and subsequently convicted of killing another inmate.

He spent nearly twenty-eight years in solitary confinement at LSP. Wilkerson’s murder

conviction was subsequently overturned, after which he pled to a lesser charge and was

released from prison in 2001. His claims are still pending in the district court against the

LSP Defendants, but are not at issue in this appeal.

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since. In 2013, Plaintiffs obtained leave to file a Fourth Amended Complaint,

to add the defendants at Wade and Hunt. Woodfox named five Wade officials

as defendants, including the Warden, Assistant Warden, and other prison

officials he asserts have authority over his placement or continued detention

in CCR (collectively “Wade Defendants”). 3 The newly added defendants filed

a motion for summary judgment on the basis of qualified immunity.

The district court denied summary judgment to the Wade Defendants on

two grounds. First, it held that the Plaintiffs’ summary judgment evidence

raised genuine issues of material fact regarding whether their placement in

CCR was an initial security classification or a punitive measure. Wilkerson II,

2013 WL 6665452, at *7-8. In support of its holding, the court noted that

Woodfox produced evidence undercutting the Wade Defendants’ arguments

that they made an initial independent decision that Woodfox should be housed

in CCR upon his 2010 transfer. Plaintiffs produced evidence showing that

there was no CCR tier at Wade prior to Woodfox’s transfer, and that at the

time of the transfer, no official ever had any intention to house Woodfox

anywhere other than at CCR. Id. at *7. Further, the district court agreed that

the Plaintiffs produced evidence questioning whether “an independent and

sincere review of their records, age, and infirmity would lead a review board to

find that they, like gang members or other dangerous inmates, should be

housed in isolation,” which suggested that Woodfox’s placement “was not solely

due to an independent initial classification.” Id. The court also acknowledged

the Plaintiffs’ argument that the Wade Defendants, “having the benefit of

3 On appeal, the parties, including the Defendants-Appellants, treat the Wade

Defendants collectively, and make no argument specific to any of the individual defendants.

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pending litigation to inform what they reflect in their record, had every

advantage to use certain labels over others.” Id. (internal alteration and

quotation omitted). In light of this evidence produced by the Plaintiffs, the

district court found that the few classification forms the Wade Defendants had

produced on summary judgment did not meet their burden of persuasion to

show that Woodfox’s placement in CCR was solely the result of an initial

classification. Id. at *8. In the alternative, the district court held that even if

Woodfox’s confinement in CCR was due to an initial classification, the

“unparalleled amount of time” he had spent in solitary confinement was an

“extraordinary circumstance” that implicated a liberty interest. Id. at *9. The

district court stated that “Plaintiffs’ approximately forty-year length of

incarceration in extended lockdown is so atypical that the Court is unable to

find another instance of an inmate spending even close to that much time in

isolation.” Id. The Wade Defendants appeal the denial of summary judgment

based on qualified immunity.

II. Discussion

“The doctrine of qualified immunity seeks to strike a balance between

competing social objectives, providing breathing space for the ‘vigorous

exercise of official authority’ while at the same time allowing a possibility of

redress for victims of officials’ abuses.” Kinney v. Weaver, 367 F.3d 337, 349

(5th Cir. 2004) (en banc) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)).

Therefore, “governmental 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). We evaluate claims of qualified immunity using a two-part test:

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(1) whether the facts that a plaintiff has shown establish a violation of a

constitutional right; and (2) whether the right was clearly established at the

time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223,

232 (2009) (quotation marks omitted). We may examine these two factors in

any order. See id. at 236 (overruling in part Saucier v. Katz, 533 U.S. 194

(2001)). To be “clearly established” for purposes of qualified immunity, “[t]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). This inquiry “requires an assessment of whether the

official’s conduct would have been objectively reasonable at the time of the

incident.” Kinney, 367 F.3d at 350 (quotation omitted).

We review the scope of clearly established law and the objective

reasonableness of the defendant government official’s actions de novo. Flores

v. City of Palacios, 381 F.3d 391, 394 (5th Cir. 2004). On interlocutory appeal

from the denial of qualified immunity, our jurisdiction “is limited to a review

of questions of law,” and we “consider only whether the district court erred in

assessing the legal significance of the conduct that the district court deemed

sufficiently supported for purposes of summary judgment.” Id. (quoting

Kinney, 367 F.3d at 348). We view the facts in the light most favorable to the

plaintiffs. Id.

A. The Liberty Interest

“The Fourteenth Amendment’s Due Process Clause protects persons

against deprivations of life, liberty, or property; and those who seek to invoke

its procedural protection must establish that one of these interests is at stake.”

Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Thus, we must first determine

whether Woodfox’s incarceration in solitary confinement gives rise to a liberty

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interest protected by due process. “A liberty interest may arise from the

Constitution itself, by reason of guarantees implicit in the word ‘liberty,’” id.

(citing Vitek v. Jones, 445 U.S. 480, 493-494 (1980) (finding a liberty interest

in avoiding involuntary psychiatric treatment and transfer to mental

institution)), “or it may arise from an expectation or interest created by state

laws or policies,” id. (citing Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974)

(finding a liberty interest in avoiding revocation of state-created system of

good-time credits)). With regard to the latter, we focus on “the nature of the

deprivation” resulting from a state regulation, rather than “the language of a

particular regulation.” See Sandin v. Conner, 515 U.S. 472, 481, 482-84 (1995);

Wilkinson, 545 U.S. at 222-23. In Sandin, the Supreme Court held that, in

addition to the obvious due process interests implicated by restrictions that

lengthen a sentence, prisoners’ liberty interests “will be generally limited to

freedom from restraint which . . . imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” Sandin, 515

U.S. at 484 (citations omitted); see Wilkinson, 545 U.S. at 223.

The Wade Defendants argue that we need not reach the Sandin “atypical

and significant hardship” test. Instead, they argue that no liberty interest ever

arose because Woodfox’s incarceration in CCR is the result of an “initial

classification” that the Wade Defendants made upon his transfer in 2010. We

have stated that “generally speaking, a prisoner has no liberty interest in his

custodial classification.” Hernandez v. Velasquez, 522 F.3d 556, 562 (5th Cir.

2008); see, e.g., Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988) (“An

inmate has neither a protectable property nor liberty interest in his custody

classification”). We have “repeatedly affirmed that prison officials should be

accorded the widest possible deference in classifying prisoners’ custodial status

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as necessary to maintain security and preserve internal order.” Hernandez,

522 F.3d at 562 (quotations and internal alteration omitted); see also Wilkerson

I, 329 F.3d at 436. Wilkerson I, a previous opinion in this litigation, did suggest

that a liberty interest would not arise from an initial classification when it

stated that “if the inmates’ confinement in extended lockdown is not the result

of their initial classification, the Sandin test would be triggered.” Wilkerson I,

329 F.3d at 436.

However, the recognized need to afford prison officials wide latitude to

maintain safety and order in the prisons they manage must coexist with

constitutional dictates. In recent precedent, the Supreme Court and this court

have made clear that there is no dispositive bright line between deprivations

resulting from initial custodial classifications and deprivations resulting from

disciplinary measures. Notably, in Wilkinson v. Austin, the plaintiff prisoners

asserted that placement in a Supermax facility in Ohio violated their due

process rights. 545 U.S. at 213. Placement in the Supermax facility was made

both by initial security classification and by subsequent reclassification based

on conduct while in prison. Id. at 215-16. The Supreme Court never indicated

that the liberty interest analysis was different when addressing an initial

security classification or an administrative custodial determination, as

opposed to a punitive disciplinary action. Instead, the Court simply applied

the “atypical and significant hardship” test from Sandin. Id. at 223. Likewise,

since the Supreme Court’s decision in Wilkinson, we have stated that “when a

prisoner demonstrates extraordinary circumstances,” or in other words, an

“atypical and significant hardship,” he may “maintain a due process challenge

to a change in his custodial classification.” Hernandez, 522 F.3d at 562

(internal quotation marks omitted); see also Tate v. Starks, 444 F. App’x 720,

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723-24 (5th Cir. 2011) (noting that extremely restrictive conditions constitute

a “crucial exception to the general rule that a prisoner has no liberty interest

in his classification”).

The Wade Defendants also point to case law holding that, in general,

administrative segregation does not implicate a liberty interest. We have

stated that, “absent extraordinary circumstances,” administrative segregation

that is merely “incident to the ordinary life as a prisoner” is not grounds for a

constitutional claim, because it simply “does not constitute a deprivation of a

constitutionally cognizable liberty interest.” Pichardo v. Kinker, 73 F.3d 612,

612-13 (5th Cir. 1996); see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995)

(“administrative segregation, without more, simply does not constitute a

deprivation of a constitutionally cognizable liberty interest”). These

statements, however, are best understood as alternative statements of the

Sandin test: administrative segregation “without more” or “absent

extraordinary circumstances” is administrative segregation that is merely

incident to ordinary prison life, and is not an “atypical and significant

hardship” under Sandin. See Pichardo, 73 F.3d at 612-13; Luken, 71 F.3d at

193. “In other words, segregated confinement is not grounds for a due process

claim unless it ‘imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.’” Hernandez, 522 F.3d at 562

(quoting Sandin, 515 U.S. at 484); see also Hardaway v. Meyerhoff, 734 F.3d

740, 743 (7th Cir. 2013) (“Whether a prisoner has a liberty interest implicated

by [segregated] confinement relies on whether the confinement imposed an

‘atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.’”).

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We must therefore apply the Sandin test and determine whether

Woodfox’s continued solitary confinement at Wade constitutes “atypical and

significant hardship. . . in relation to the ordinary incidents of prison life,” such

that a liberty interest in avoiding the deprivation arises. See Wilkinson, 545

U.S. at 223; Sandin, 515 U.S. at 484; Hernandez, 522 F.3d at 562-63. Our

conclusion flows directly from the Supreme Court’s decisions in Sandin and

Wilkinson. “In deciding whether changes to an inmate’s conditions of

confinement implicate a cognizable liberty interest, both Sandin and

[Wilkinson] considered the nature of the more-restrictive confinement and its

duration in relation to prison norms and to the terms of the individual’s

sentence.” Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 2008) (emphasis

in original). In Sandin, the Supreme Court held that no liberty interest was

implicated by segregated confinement for thirty days, imposed as discipline for

disruptive behavior. Sandin, 515 U.S. at 485-86. The Court found that in the

circumstances of that case, segregated confinement did not “present a dramatic

departure from the basic conditions of Conner’s indeterminate sentence.” Id.

at 485. The Court noted that inmates in the general population at the prison

experienced “significant amounts of ‘lockdown time,’” that the degree of

confinement in disciplinary segregation was not excessive “in either duration

or degree of restriction” compared to other types of restrictive confinement

imposed on inmates, and that the thirty-day disciplinary segregation did not

work a “major disruption in the inmate’s environment.” Id. at 486-87.

Subsequently, in Wilkinson v. Austin, the Supreme Court held that a

prisoner’s assignment to the Ohio Supermax facility entailed “highly

restrictive conditions” of confinement, and did give rise to a liberty interest.

545 U.S. at 213, 224. In the Ohio Supermax, inmates spent 23 hours a day in

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single cells, with solid metal doors that prevented communication from one cell

to another; prisoners took all their meals alone in their cells; and visitation

opportunities were “rare,” and conducted through glass walls. Id. at 214, 223-

24. In addition, confinement at the Supermax facility was indefinite, and

otherwise eligible inmates were disqualified for parole consideration by

placement in Supermax. Id. at 224. The Court explained that “[w]hile any of

these conditions standing alone might not be sufficient to create a liberty

interest, taken together they impose an atypical and significant hardship

within the correctional context,” and held that the prisoners had a liberty

interest in avoiding assignment to the Supermax facility. Id.

Following Sandin and Wilkinson, our sister circuits have considered the

severity of the restrictive conditions and their duration as key factors in

analyzing whether those conditions constitute an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.” See

Hardaway, 734 F.3d at 743 (“In assessing whether disciplinary segregation

amounts to a constitutional violation, this court looks to ‘the combined import

of the duration of the segregative confinement and the conditions endured.’”);

Harden-Bey, 524 F.3d at 793 (“[M]ost (if not all) of our sister circuits have

considered the nature of the more-restrictive confinement and its duration in

determining whether it imposes an ‘atypical and significant hardship.’”

(emphasis in original)); Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)

(“Factors relevant to determining whether the plaintiff endured an ‘atypical

and significant hardship’ include ‘the extent to which the conditions of the

disciplinary segregation differ from other routine prison conditions’ and ‘the

duration of the disciplinary segregation imposed compared to discretionary

confinement.’”); Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (noting

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that relevant factors include “the duration of the condition, and the degree of

restraint imposed”); Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)

(considering the amount of time the prisoner was placed in segregation and

whether the conditions were significantly more restrictive than those imposed

upon other inmates in solitary confinement).

Courts have considered different baselines when determining what

conditions are “atypical” in a particular case. Some courts have compared the

conditions for inmates in segregated confinement to inmates in the general

population at the institution. See Beverati v. Smith, 120 F.3d 500, 504 (4th

Cir. 1997). Some have compared the conditions of the segregated confinement

at issue to conditions of segregation that are ordinary within the particular

state’s penal system as a whole. See Griffin v. Vaughn, 112 F.3d 703, 708 (3d

Cir. 1997). One court has held that the appropriate comparison is to “the most

restrictive confinement conditions that prison officials . . . routinely impose on

inmates serving similar sentences.” Hatch v. District of Columbia, 184 F.3d

846, 856 (D.C. Cir. 1999).

Here, considering the duration of the solitary confinement, the severity

of the restrictions, and their effectively indefinite nature, it is clear that

Woodfox’s continued detention in CCR constitutes an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life”

according to any possible baseline we could consider.

We need not dwell on duration. Woodfox’s incarceration in solitary

confinement is now approaching an extraordinary thirty-nine years. This is

almost five times the duration deemed sufficient to give rise to a liberty

interest in Shoats. 213 F.3d at 144 (“[E]ight years in administrative custody,

with no prospect of immediate release in the near future, is ‘atypical’ in relation

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to the ordinary incidents of prison life”); see also Laue v. Johnson, 117 F. App’x

365, 366 (5th Cir. 2004) (“We will assume arguendo that Laue’s eight years of

confinement in administrative segregation constitutes an ‘atypical and

significant hardship on the inmate in relation to the ordinary incidents of

prison life.’”); Harden-Bey, 524 F.3d at 793 (finding due process complaint was

incorrectly dismissed where it alleged three years of administrative

segregation which was “not improbably” indefinite). By contrast, the duration

in segregated confinement that courts have found does not give rise to a liberty

interest ranges up to two and one-half years, a mere fraction compared to the

duration of Woodfox’s solitary confinement. See Jones v. Baker, 155 F.3d 810,

812-13 (6th Cir. 1998) (holding that administrative segregation for two and

one-half years did not give rise to a liberty interest); Griffin, 112 F.3d at 708

(finding that inmate’s placement in administrative segregation for fifteen

months did not give rise to a liberty interest); Hernandez, 522 F.3d at 563

(finding that protective lockdown for twelve months did not give rise to a

liberty interest).

Coupled with this extraordinary duration, the conditions in CCR are

sufficiently restrictive so as to constitute an “atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515

U.S. at 484. In Wilkinson, inmates at Ohio Supermax (“OPS”) were confined

for 23 hours a day in individual cells with metal doors, where inmates ate all

their meals alone, visits were rare and conducted through a window, placement

was indefinite, and inmates were automatically made ineligible for parole.

Wilkinson, 545 U.S. at 214, 223-24. In the present case, the district court found

that,

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Here, there are similar severe conditions of confinement. Like the

conditions at OPS, inmates housed in Hunt and Wade’s CCR unit

are confined alone to their cells for 23 hours per day with one hour

designated for exercise and a shower period. Inmates on the CCR

unit are not afforded the same ability to partake in religious or

educational opportunities or to enjoy other privileges as those

housed in general population.

Wilkerson II, 2013 WL 6665452, at *8. Though there are some distinctions

between the conditions at Ohio Supermax and CCR at Wade, notably that no

parole ramifications appear to attach to CCR, the record evidence supports the

district court’s finding that there are material and substantial similarities. In

both cases, prisoners are isolated in their cells for 23 hours a day, the exercise

allowed in the one hour outside of their cells is limited to isolated areas, there

are significant limitations on human contact, and placement is indefinite. The

Wade Defendants argue that restrictions in CCR are not sufficiently severe,

because they assert that Woodfox is allowed some contact visits, telephone

privileges, peer counseling, and correspondence courses. Were the duration of

Woodfox’s solitary confinement less lengthy, such distinctions might become

material. Here, however, we consider the 23-hour-a-day in cell isolation,

limited physical exercise, and limited human contact, together with the

extraordinary length of time that Woodfox has been held in such conditions.

Viewed collectively, there can be no doubt that these conditions are sufficiently

severe to give rise to a liberty interest under Sandin.

This is particularly true in light of the district court’s factual finding that

Woodfox’s solitary confinement at Wade is effectively indefinite. In Wilkinson,

the Supreme Court considered the indefinite duration of the confinement at

Supermax to be a significant factor. See Wilkinson, 545 U.S. at 214-15, 224.

Here, the district court stated:

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Additionally, as this Court has previously found the Plaintiffs’

placement in CCR was and remains indefinite. When determining

that the Plaintiffs’ placement in CCR was indefinite at LSP, the

Court observed,

In the present matter, the Review Board’s rote

repetition of the reason for the inmates continued

confinement as being the same reason they were

initially placed in lockdown effectively eliminates any

possibility of release, regardless of their current

situation and behavior while in lockdown. The

original reason for placement in lockdown can never

change; thus plaintiffs’ current situation of “indefinite

placement” in lockdown is static, with no hope of

release other than by death or release from the prison

entirely, as was the case for plaintiff Wilkerson.

As the evidence in the present matter demonstrates, this practice

of rote repetition has continued at Hunt and Wade.

Wilkerson II, 2013 WL 6665452, at *9. We agree with the district court that

the summary judgment evidence, viewed in the light most favorable to

Woodfox, shows that his solitary confinement is effectively indefinite.

Whether we compare Woodfox’s nearly thirty-nine years in 23-hour-a-

day isolation to other inmates in the general population, other inmates in

segregated confinement within the Louisiana system as a whole, or other

inmates serving life sentences, these conditions constitute an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of

prison life.” Sandin, 515 U.S. at 484. Whatever the “ordinary incidents of

prison life” may encompass, they can only be truly “ordinary” when

experienced by some measurable proportion of a baseline prison population. In

Shoats, the Third Circuit held that the parties “do not dispute the fact that

very few Pennsylvania prisoners have been confined in administrative custody

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for periods of eight years or more,” and found that the uniqueness of the

duration, together with restrictive conditions, was sufficient to render that

confinement “atypical.” See Shoats, 213 F.3d at 144. Here, the district court

specifically found that “Plaintiffs’ approximately forty-year length of

incarceration in extended lockdown is so atypical that the Court is unable to

find another instance of an inmate spending even close to that much time in

isolation.” Wilkerson II, 2013 WL 6665452, at *9. Indeed, the Defendants

acknowledged at oral argument that there is no other inmate in Louisiana that

has been held in CCR for as long as Woodfox. Even if there may be some small

number of unknown prisoners in a comparable situation, it is clear that

Woodfox’s decades-long, effectively indefinite solitary confinement cannot be

classified as “ordinary” according to any measure. See Shoats, 213 F.3d at 144.

Although it is true that Woodfox was confined in CCR at LSP, an

institution outside the management of the Wade Defendants, for thirty-five of

the nearly thirty-nine years of his solitary confinement, in the circumstances

of this case we must consider the entire duration. We reject the Wade

Defendants’ assertion—unsupported by any authority—that Woodfox’s

previous decades in solitary confinement are irrelevant to the question of his

due process rights now. “Due process is flexible and calls for such procedural

protections as the particular situation demands.” Mathews v. Eldridge, 424

U.S. 319, 334 (1976) (quotation omitted). In the present case, the Wade

Defendants did not confront Woodfox as a newly convicted inmate, entirely

unknown to them, with no institutional record. Instead, in November 2010,

part of the circumstances to be considered upon his transfer was that Woodfox

had already been subjected to over three decades in solitary confinement, in

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the same prison system, under the same ultimate administration, and with the

same continuing justification for the confinement.

In comparable situations, other circuits have aggregated time spent in

different facilities when deciding whether a liberty interest was implicated by

administrative segregation. In Giano v. Selsky, the Second Circuit found it

particularly appropriate to aggregate the time the plaintiff spent in

administrative segregation at two facilities where “the two periods of

confinement were based on the same administrative rationale and that the

conditions of [the plaintiff’s] confinement were, for all practical purposes,

identical at both facilities.” 238 F.3d 223, 226 (2d Cir. 2001). Similarly, in

Shoats, the plaintiff prisoner had been transferred among multiple institutions

in the state and federal prison system. 213 F.3d at 142. Shoats was originally

placed in administrative custody in 1989 at the State Correctional Institution

in Dallas, Pennsylvania (“SCI-Dallas”). Id. He was subsequently transferred

to the federal penitentiary at Leavenworth, Kansas, and returned to SCI-

Dallas in June 1991, where he was placed back in administrative custody. Id.

In January 1995, he was transferred to a state correctional institution in

Greene, Pennsylvania, and continued to be held in administrative custody. Id.

In determining whether that continued administrative custody implicated a

liberty interest, the Third Circuit considered the entire cumulative eight-year

period of the prisoner’s administrative custody in the state system. See id. at

143-44.

Given the extraordinarily lengthy detention and the isolating, restrictive

conditions that we consider here, there is no basis for concluding that prison

officials may avoid the established constitutional rights of prisoners by

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transferring them to a new facility and wiping the slate clean, while continuing

all of the conditions that the prisoner has challenged.

B. Clearly Established Law

Having found a liberty interest, we must now determine whether that

liberty interest was sufficiently clearly established at the time of Woodfox’s

2010 transfer, such that a reasonable official would have understood that the

failure to provide adequate procedural protections violated the Constitution.

The touchstone of this inquiry is “fair warning.” See Kinney, 367 F.3d at 350.

“The law can be clearly established ‘despite notable factual distinctions

between the precedents relied on and the cases then before the Court, so long

as the prior decisions gave reasonable warning that the conduct then at issue

violated constitutional rights.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 740

(2002)).

The Wade Defendants contend that, despite subsequent developments in

the law, they were objectively reasonable in relying on the assumption in

Wilkerson I that a liberty interest could not arise from an initial classification,

regardless of the duration or indefiniteness of Woodfox’s solitary confinement.

See Wilkerson I, 522 F.3d at 435-36.

However, the law did not freeze with the decision in Wilkerson I in 2003.

As we have said, prior to the 2010 transfer of Woodfox, both our court and the

Supreme Court had recognized that even if an initial security classification

does not generally implicate a liberty interest, such an interest may arise

where an initial classification is also attended by “extraordinary

circumstances,” that is, an “atypical and significant hardship.” See Wilkinson,

545 U.S. at 213, 222-24; Hernandez, 522 F.3d at 562-63. The Supreme Court’s

2005 decision in Wilkinson made it clear that “indefinite” placement in “highly

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restrictive conditions” implicates a liberty interest, even if that placement is

the result of an initial classification. Wilkinson, 545 U.S. at 213, 222-24.

Wilkinson clearly negates any assumption in Wilkerson I that a decision based

upon an initial classification could never give rise to due process concerns.

Likewise, in our 2008 decision in Hernandez, we clearly stated: “Only when a

prisoner demonstrates ‘extraordinary circumstances’ may he maintain a due

process challenge to a change in his custodial classification.” 522 F.3d at 562.

In 2010, a reasonable prison official would have been on notice that

continuing Woodfox’s solitary confinement would give rise to a liberty interest

requiring procedural protections. Prior to Woodfox’s transfer to Wade, cases

such as Wilkinson and Hernandez made clear that even an initial security

classification may give rise to a liberty interest if the Sandin “atypical and

significant hardship” test is met. See Wilkinson, 545 U.S. at 223; Hernandez,

522 F.3d at 562; see also Tate, 444 F. App’x at 723-24. Woodfox was subjected

to the sort of 23-hour-a-day in-cell confinement, limited physical exercise,

limited human contact, and effectively indefinite placement that gave rise to a

liberty interest in Wilkinson. Any differences between the Supermax

conditions in Wilkinson and the CCR conditions at Wade are insufficient to

render reasonable the conclusion that there is no liberty interest here.

This conclusion is cemented by the unprecedented duration of Woodfox’s

incarceration in CCR. It is difficult, if not impossible, to imagine circumstances

more “extraordinary” than nearly four decades in solitary confinement. Courts

applying the Sandin test have always considered the duration of the

restrictions to be a central factor in the analysis. See Hernandez, 522 F.3d at

563 (contrasting twelve months of protective lockdown with thirty years);

Hardaway, 734 F.3d at 743; Harden-Bey, 524 F.3d at 792; Palmer, 364 F.3d at

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64; Serrano, 345 F.3d at 1078; Shoats, 213 F.3d at 144. Indeed, in Hernandez,

this court expressly characterized the CCR conditions at issue here as “extreme

conditions” and contrasted the Hernandez plaintiff’s twelve months of

protected lockdown with Woodfox, who had been “kept on lockdown status for

30 years.” Hernandez, 522 F.3d at 563. In the circumstances of this case, no

reasonable prison official could conclude that continuing four decades in

indefinite solitary confinement would not implicate a liberty interest protected

by due process.

C. Adequacy of Process

We hold that Woodfox has a clearly established liberty interest. It does

not follow that this type of extended lockdown is necessarily impermissible in

every circumstance, but that it is such an “atypical and significant hardship”

that the prison officials must provide adequate procedural protections to the

inmate. See Wilkinson, 545 U.S. at 224-29 (holding that the prison system

provided adequate due process by providing informal, non-adversary

procedures which included multiple levels of review for any decision

recommending OPS placement, and a placement review within 30 days of the

initial assignment). Here, the district court found that genuine issues of

material fact precluded summary judgment on the question of whether the

procedures for review of CCR placement at Wade were constitutionally

adequate. Wilkerson II, 2013 WL 6665452, at *9-11. The Wade Defendants do

not challenge this holding on appeal, and conceded at oral argument that if we

were to find a liberty interest, the case must be remanded to determine the

adequacy of the procedures. Having found a clearly established liberty

interest, we affirm the denial of summary judgment based on qualified

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immunity and leave the question of the adequacy of the process to be resolved

in the district court.

III. Conclusion

For the foregoing reasons, the district court’s denial of qualified

immunity is AFFIRMED. The case is remanded for further proceedings

consistent with this opinion.

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