Peter Bistrian v. Troy Levi

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-3629

_______________

PETER BISTRIAN

v.

WARDEN TROY LEVI, FDC Philadelphia; ASSISTANT

WARDEN TRACY BROWN, FDC Philadelphia;

ASSISTANT WARDEN BLACKMAN, FDC Philadelphia;

CAPTAIN DAVID C. KNOX, FDC Philadelphia; J.

MCLAUGHLIN, Special Investigative Agent, FDC

Philadelphia; DAVID GARRAWAY, Special Investigative

Agent, FDC Philadelphia; LT. J. A. GIBBS, FDC

Philadelphia; SENIOR WILLIAM JEZIOR, FDC

Philadelphia; SENIOR OFFICER BOWNS, FDC

Philadelphia; SENIOR OFFICER BERGOS, FDC

Philadelphia; UNIT MANAGER WHITE, FDC Philadelphia;

LT. RODGERS, FDC Philadelphia; LT. R. WILSON, FDC

Philadelphia; LT. ROBINSON, FDC Philadelphia; LT. D.

ACKER, FDC Philadelphia; LT. D. DEMPSEY, FDC

Philadelphia; LT. ARMISAK, FDC Philadelphia; CLINICAL

DIRECTOR O. DALMASI, M.D., FDC Philadelphia;

PHYSICIAN ASSISTANT H. BOKHARI, FDC

Philadelphia; PHYSICIAN ASSISTANT A. FAUSTO, MLP,

FDC Philadelphia; CHIEF PSYCHOLOGIST A.

BOARDMAN, FDC Philadelphia;

A. MARTINEZ, Health Service Administrator, FDC

Philadelphia; G. REYNOLDS, M.D. FDC Philadelphia; K.

KAISER, PA-C, FDC Philadelphia; Q. HIT ALSBROOKS,

FDC Philadelphia; A. ZORRILLA, NP, FDC Philadelphia; D.

MASSA, M.D., FDC Philadelphia; D. STILL, DDS, CDO,

FDC Philadelphia; JOHN/JANE DOES 1-10, Agents

Servants, and Employees of Federal Bureau of Prisons and/or

Federal Detention Center, Philadelphia; JOHN/JANE DOES

11-15, Agents, Servants, and Employees of other

Departments, Agencies, and/or Bureaus of

the United States of America;

THE UNITED STATES OF AMERICA

WARDEN TROY LEVI; ASSISTANT

WARDEN TRACY BROWN; ASSISTANT

WARDEN BLACKMAN; CAPTAIN

DAVID C. KNOX;

J. MCLAUGHLIN; DAVID GARRAWAY;

LT. J. A. GIBBS; SENIOR WILLIAM

JEZIOR; SENIOR OFFICER BOWNS;

SENIOR OFFICER BERGOS; UNIT

MANAGER WHITE; LT. RODGERS; LT. R.

WILSON; LT. ROBINSON; LT. D. ACKER;

LT. D. DEMPSEY; LT. ARMISAK;

CLINICAL DIRECTOR O. DALMASI, M.D.;

PHYSICIAN ASSISTANT H. BOKHARI;

PHYSICIAN ASSISTANT A. FAUSTO;

CHIEF PSYCHOLOGIST A. BOARDMAN;

A. MARTINEZ; K. KAISER;

Q. HIT ALSBROOKS; A. ZORRILLA; D.

MASSA, M.D.; D. STILL

Appellants

2

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-08-cv-03010)

District Judge: Honorable Cynthia M. Rufe

_______________

Argued March 7, 2012

_______________

Before: McKEE, Chief Judge, SCIRICA,

and AMBRO, Circuit Judges

(Opinion filed: September 24, 2012)

John P. Kahn, Esq. (Argued)

Archer & Greiner

One Centennial Square

P.O. Box 3000

Haddonfield, NJ 08033

Carlton L. Johnson, Esq.

Richard G. Tuttle, Esq.

Archer & Greiner

1650 Market Street

One Liberty Place, 32nd Floor

Philadelphia, PA 19103-7393

Counsel for Appellants

Jonathan S. Abady, Esq.

Adam R. Pulver, Esq.

3

O. Andrew F. Wilson, Esq. (Argued)

Emery, Celli, Brinckerhoff & Abady

75 Rockefeller Plaza, 20th Floor

New York, NY 10019

Stephanie B. Fineman, Esq.

Fox Rothschild

2700 Kelly Road, Suite 300

Warrington, PA 18976-3624

Robert E. Goldman, Esq.

P.O. Box 239

Fountainville, PA 18923

James L. Griffith, Esq.

Fox Rothschild

2000 Market Street, 20th Floor

Philadelphia, PA 19103

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

AMBRO, Circuit Judge

Twenty-seven employees of the Federal Detention

Center in Philadelphia (―FDC Philadelphia‖) appeal the

District Court‘s denial of their motion to dismiss Peter

Bistrian‘s multiple claims. Bistrian asserts that, while he was

awaiting sentencing on wire-fraud charges, prison

investigators used him to intercept notes being passed among

4

other inmates, and then failed to protect him after they

flubbed the operation and the inmates discovered his

involvement. When the target inmates threatened to retaliate,

Bistrian contends he repeatedly begged the officials

responsible for help, but no one took any preventive

measures. Later, one of the inmates against whom Bistrian

had cooperated, along with two others, beat him while they

were together in a locked recreation pen. A few months later,

an inmate wielding a razor-blade type weapon also attacked

Bistrian in the recreation pen. In addition, Bistrian claims

that certain chunks of the 447 days he spent in administrative

segregation violated his substantive due process, procedural

due process, and free speech rights.

Bistrian‘s 108-page Second Amended Complaint (the

―Complaint‖) includes 19 counts, 309 paragraphs, and an

additional 114 pages of exhibits. After the District Court‘s

ruling, six counts survived against 28 defendants. Though we

pare down this action further as to both the number of

defendants and claims, those that remain are plausible and

can proceed past the motion-to-dismiss stage. Thus, we

affirm in part, reverse in part, and remand for proceedings

consistent with this opinion.

I. Factual Background1

1

When reviewing the denial of a Rule 12(b)(6) motion to

dismiss, we must accept as true all well-pled factual

allegations as well as all reasonable inferences that can be

drawn from them, and construe those allegations in the light

most favorable to the plaintiff. See Mayer v. Belichick, 605

F.3d 223, 229-30 (3d Cir. 2010). As such, we set out facts as

they appear in the Complaint and its exhibits. See id. at 230

5

A. Bistrian Enters the Special Housing Unit

(“SHU”) for the First Time

Bistrian was a detainee at FDC Philadelphia from

August 2005 — when he was arrested on federal wire fraud-

related charges — until his sentencing in March 2008. App.

74 ¶ 9; 186; 235. During that time he clocked four spells,

totaling 477 non-consecutive days, in the Special Housing

Unit (―SHU‖). App. 81 ¶ 39.

The SHU is a segregated housing unit where inmates

may be placed for either administrative or disciplinary

reasons. App. 74-76 ¶¶ 11-17. Inmates are confined in

solitary or near-solitary conditions in a six-by-eight foot cell

―for 23 to 24 hours a day, with little or no opportunity to

interact with other inmates.‖ App. 75 ¶12. They face sensory

deprivation, reduced access to medical care, and increased

suicidal tendencies. App. 75 ¶¶ 12-13.

Administrative detention in the SHU can occur for a

variety of reasons. App. 76 ¶¶ 18-27. If an ―inmate‘s

continued presence in the general population poses a serious

threat to life, property, self, staff, other inmates or the security

or orderly running of the institution,‖ then the Warden may

place the inmate in administrative detention if (among other

reasons) an investigation of an inmate is pending for violating

prison regulations or the inmate requests admission for

protective purposes. App. 76 ¶ 19 (quoting 28 C.F.R.

§ 541.22(a)).2 Bureau of Prison (―BOP‖) regulations require

(noting that a court can consider ―exhibits attached to the

complaint‖ when deciding a Rule 12(b)(6) motion to dismiss).

2

Some of the regulations that Bistrian quotes or cites in the

Complaint (filed in July 2009) have since been amended. In

6

the Warden of a detention facility to prepare an administrative

order ―detailing the reasons for placing an inmate in

administrative detention‖ within 24 hours of the inmate‘s

placement, and to provide a copy to the inmate. App. 77 ¶ 20

(quoting 28 C.F.R. § 541.22(b)). In addition, a Segregation

Review Officer (―SRO‖) must make ongoing determinations

about the appropriateness of the inmate‘s continued housing

in administrative detention. App. 77-78 ¶¶ 21-27.

Disciplinary segregation is principally reserved for

inmates ―officially designated as exhibiting violent or

seriously disruptive behavior while incarcerated.‖ App. 74-

75 ¶ 11; 78-80 ¶¶ 28-37. Only a Discipline Hearing Officer

(―DHO‖) may impose disciplinary segregation, and may do

so only after a hearing finding the inmate has committed a

serious prohibited act. App. 78-80 ¶¶ 29-37. An SRO must

also monitor inmates in disciplinary segregation and make

determinations about the appropriateness of their continued

separation. App. 80 ¶ 36.

On November 18, 2005, Bistrian was transferred out of

the general prison population and into administrative

detention in the SHU because he supposedly abused his

telephone privileges. App. 85 ¶ 57. On December 9, 2005, a

DHO sanctioned him to 30 days‘ disciplinary segregation for

the alleged infractions. App. 85 ¶¶ 59. Bistrian was released

from the SHU on January 9, 2006. Id. The propriety of this

30-day disciplinary segregation is not at issue here.

According to the Complaint, Warden Troy Levi failed

to prepare an administrative detention order detailing the

the background section of this opinion, we refer to and quote

the regulations as they appear in the Complaint. Current

federal regulations concerning SHUs appear in 28 C.F.R.

§§ 541.20-.33.

7

reasons for Bistrian‘s detention and to provide him with a

copy within 24 hours of his initial confinement on November

18. App. 85 ¶ 60. Bistrian also claims an SRO failed to

conduct, as required by BOP regulations, reviews of his

placement in administrative detention between November 18

and December 9. App. 86 ¶ 61.

B. Bistrian Enters the SHU a Second Time

Shortly after Bistrian‘s release from the SHU on

January 9, 2006, FDC officials again accused him of violating

the telephone rules and placed him back in the SHU for

administrative detention on January 25. App. 86 ¶ 63. This

time Bistrian remained there for 308 days, until his release on

December 8. Id. He claims that Warden Levi again did not

prepare a timely and appropriate administrative detention

order. App. 86 ¶ 64.

Bistrian also alleges that Warden Levi and nine other

FDC officials (together the ―Prison Management

Defendants‖)3 met on a weekly basis to discuss the status of

SHU inmates and to determine whether any of them should

be released back into the general prison population. App. 80

¶ 38. He claims that, during his second stay in the SHU,

prison officials did not investigate the alleged phone abuse

that was the supposed reason for his confinement. Instead,

they intentionally confined him in administrative segregation

under the pretext of a non-existent investigation in order to

3

This group consists of Warden Levi, Assistant Wardens

Brown and Blackman, five members of the Corrections

Officers staff (Captain David Knox, Lt. David Gibbs, Sr.

Officer William Jezior, Sr. Officer Bergos and Unit Manager

White), and two Special Investigative Agents (J. McLaughlin

and David Garraway). App. 80-81 ¶ 38.

8

bypass the procedural protections required for disciplinary

segregation. App. 86-87 ¶¶ 65-67.

1. Bistrian Collaborates with the Federal

Bureau of Investigation (―FBI‖)

In April or May 2006, Steve Northington (another

SHU detainee) asked Bistrian (then an orderly in the SHU) to

pass along a note to his fellow gang member and SHU

detainee, Kaboni Savage. App. 89 ¶¶ 72, 74. Bistrian agreed,

but later advised Lt. Gibbs and Sr. Officers Bowns, Jezior,

and Bergos that he had done so. App. 89 ¶ 73. Northington

and Savage are members of a drug gang from North

Philadelphia. App. 89 ¶ 74. They have long and violent

criminal careers with prior convictions for, among other

things, robbery and aggravated assault. App. 89 ¶¶ 74-76.

During a court-authorized wiretap of his SHU cell, Savage

was caught on tape repeatedly threatening in graphic detail to

kill the witnesses against him, their wives, parents, siblings,

and young children. App. 89 ¶ 76 (citing Government‘s

Sentencing Memorandum, United States v. Kaboni Savage,

Criminal No. 04-269-01 (E.D. Pa. March 15, 2006)).

The FBI expressed interest in the notes being passed

among Northington, Savage, and other detainees, because

they were defendants in an ongoing drug gang prosecution

that involved substantial witness intimidation, death threats to

witnesses and law enforcement, and a firebombing that killed

six family members of the Government‘s chief cooperating

witness. App. 90 ¶¶ 78-79. After consulting with the FBI,

Lt. Gibbs and Sr. Officers Bowns, Jezior, and Bergos

instructed Bistrian to continue passing notes for the inmates.

App. 90 ¶ 80. They told him, however, to bring the notes to

the Special Investigative Services (―SIS‖) office at FDC

Philadelphia first. App. 90 ¶¶ 80.

9

Bistrian passed several notes among Northington,

Savage, and two other detainees over the next few weeks.

App. 90 ¶ 81. Each time, Bistrian would bring the note to the

SIS office. Lt. Gibbs, Sr. Officers Bowns, Jezior, and Bergos,

Special Investigative Agents McLaughlin and Garraway, and

Lts. Rodgers and Robinson would review the note, photocopy

it if necessary, and then give it back to Bistrian with

instructions to deliver it. App. 90 ¶ 81. Lt. Gibbs, Sr.

Officers Bowns, Jezior, and Bergos, and Special Investigative

Agents McLaughlin and Garraway forwarded some

photocopies to the FBI. App. 90 ¶ 82.

But ―[o]n one particular occasion‖ when Bistrian

brought in a note for photocopying, Lt. Gibbs and Sr. Officers

Bowns, Jezior, and Bergos placed the photocopy back in the

delivery envelope instead of the original note. App. 91 ¶ 84.

Bistrian claims that the note‘s intended recipient recognized it

as a photocopy and immediately realized Bistrian‘s

cooperation with prison officials. App. 91 ¶ 84. Bistrian also

alleges that, on unspecified occasions, Lts. Gibbs, Rodgers,

and Robinson, Sr. Officers Bowns, Jezior, and Bergos, and

Special Investigative Agents McLaughlin and Garraway

failed to return to him all notes for delivery, further notifying

the intended recipients of his cooperation. App. 91 ¶ 85.

Bistrian began receiving multiple threats from the

notes‘ intended recipients, including Northington, who

threatened him on more than one occasion when they were

together in the recreation yard. App. 91-92 ¶ 86. According

to Bistrian, he ―repeatedly advised (both verbally and in

writing)‖ FDC officials—including Lts. Gibbs, Rodgers, and

Robinson, Sr. Officers Bowns, Jezior, and Bergos, and

Special Investigative Agents McLaughlin and Garraway—of

the threats and the risks he faced by being confined in the

SHU with the Northington gang. App. 92 ¶ 87. He insisted

that members of Northington‘s gang would seriously harm

10

him if they were placed in the recreation yard with him at the

same time. App. 92 ¶ 87. Despite these warnings, FDC

officials took no preventive action.

2. Bistrian is Attacked for the First Time

On June 30, 2006, Bistrian was standing in the SHU

recreation yard (a locked pen with guards posted on the

outside) when Northington and two other SHU inmates

approached him and began arguing about a note that he failed

to deliver. App. 93 ¶ 92; 237. When Bistrian turned away,

Northington punched him in the face. App. 93 ¶ 93. Bistrian

was then knocked to the ground and went unconscious when

his head hit a cement portion of the yard‘s metal cages. Id.

While he lay unconscious, Northington and the other inmates

repeatedly kicked and beat him, landing blows to his face,

head, body, and midsection. App. 93 ¶ 94.

Bistrian claims that FDC guards, including Sr. Officer

Jezior, intervened ―[o]nly after several minutes of continued

pummeling.‖ App. 93-94 ¶ 95. According his incident

report, Sr. Officer Jezior came to the SHU recreation pen in

response to an alarm and, on his arrival, saw an inmate

beating Bistrian in the face with closed fists. App. 250.

Several staff members, including Jezior, shouted orders to the

inmate to stop and back away from Bistrian, but the inmate

continued his beating. Id. When ―enough staff were

present,‖ officers entered the recreation pen and the assaulting

inmate got down on his stomach and allowed himself to be

handcuffed without further incident. Id. By then Bistrian had

already suffered a dislocated left shoulder, broken teeth, and

multiple contusions and lacerations to his head and face that

required sutures. App. 94 ¶ 97.

Special Investigative Agent McLaughlin interviewed

Northington after the attack. Presumably when asked why he

11

attacked Bistrian, ―Northington stated that he got 19 and a

half years because of rats and now inmate Bistrian is being

used to get him [Northington] another case.‖ App. 237.

Another inmate involved in the attack admitted that he

previously put a sign on his cell that read ―stop snitching.‖

App. 238.

Bistrian remained in the SHU after the attack. On July

6, 2006, Lt. Wilson prepared an administrative order

purporting to place him in administrative detention for

―security reasons.‖ App. 94 ¶ 99. Bistrian claims that neither

Warden Levi nor Lt. Wilson gave him a copy of this order, as

required by prison regulations. App. 95 ¶ 100.

3. Bistrian is Attacked a Second Time

On October 12, 2006, Bistrian was attacked again in

the SHU recreation yard. App. 96 ¶ 106. He was in hand

restraints, waiting to be let in from the yard, when Aaron

Taylor (an inmate with a history of violently attacking fellow

detainees) approached him waving a ―manufactured razor-

blade style weapon, repeatedly slashing and cutting [his] face,

arms, and legs.‖ App. 96-97 ¶¶ 106-07.

FDC guards and staff, including Captain Knox and

Lts. Acker and Dempsey, attempted to stop the attack by

firing pepper spray into the recreation cage. App. 97 ¶ 109;

269. This proved ineffective, so after several minutes they

used a ―Tactical Blast Stun Munition,‖ which incapacitated

Taylor and allowed staff members to enter the area to attend

to Bistrian. App. 97 ¶ 109. Lt. Acker interviewed Bistrian

after the attack and asked him what happened. App. 276.

According to Lt. Acker‘s report, Bistrian told him that Taylor

yelled ―You racist mother fucker!,‖ and then attacked him

12

even though Bistrian had never spoken to Taylor before the

incident. App. 276.4

Bistrian was transported to a local hospital, where he

received 52 sutures to close his wounds. App. 97 ¶ 112. The

attack left him with scars on his face and body as well as

severe mental, emotional, and psychological injuries. App.

98 ¶ 113. Despite several requests, prison officials did not

allow him to see a medical doctor again until November 9,

2006. App. 98 ¶ 114. After a brief examination, medical

staff told Bistrian that ―he was going to have to be ‗creative‘

at physical rehabilitation due to his confinement in the SHU.‖

App. 98 ¶ 114. Bistrian was released from the SHU on

December 8, 2006, and transferred back to the general

population. App. 99 ¶ 118.

C. Bistrian Enters the SHU a Third Time

After learning that they had placed Bistrian in the same

unit as one of his June 30 assailants, FDC officials returned

Bistrian to the SHU for a third time on December 22, 2006;

he remained there until January 25, 2007. App. 99 ¶¶ 118-19.

Bistrian alleges that the Prison Management

Defendants violated several prison regulations when moving

him back to the SHU. For example, Warden Levi once again

failed to prepare a timely and appropriate administrative

detention order. App. 99 ¶ 121 (citing 28 C.F.R. §

541.22(b)). Also, because they placed Bistrian in

4

Taylor was later convicted of assault with a dangerous

weapon, 18 U.S.C. § 113(a)(3), and sentenced to 120 months‘

imprisonment. We recently affirmed his conviction and

described the racial tensions apparently inflaming inmates at

FDC Philadelphia at the time of the attack. See United States

v. Taylor, 686 F.3d 182 (3d Cir. 2012).

13

administrative segregation for protective purposes but not at

his own request, the Prison Management Defendants were

required to review his status within two work days and hold a

hearing within seven days of his placement, but they failed to

do so. App. 100 ¶¶ 122-24.

D. Bistrian Enters the SHU a Fourth Time

After having been in and out of the SHU three times,

Bistrian met with forensic psychologist Dr. Stephen E.

Samuel. In August 2007, Dr. Samuel informed the FDC‘s

chief psychologist that he had diagnosed Bistrian with Post-

Traumatic Stress Disorder and Dysthymic Disorder resulting

from his long-term confinement in the SHU and the two

attacks he suffered. App. 100 ¶ 125.

That month, Bistrian participated in the first of two

sentencing hearings in his criminal case. App. 100 ¶ 126. In

court filings and at the hearing, his counsel contested the

legality of his placement in the SHU and his other

mistreatment in prison. Id. Following the hearing, on

September 12, 2007, Bistrian‘s attorney sent an email to the

Assistant United States Attorney handling the sentencing,

repeating his challenge to the purported telephone violation

charges against Bistrian that had been used to justify his first

two placements in the SHU and demanding a copy of the

applicable prison regulations. App. 101 ¶ 127. The AUSA

forwarded the email to FDC Philadelphia. Id.

The next day, Bistrian returned to the SHU, received

an administrative detention order indicating that he was being

held ―pending investigation‖ of alleged telephone infractions;

and attended a hearing before the Unit Disciplinary

Committee, where he promptly received a sanction of a loss

of phone privileges for 60 days. App. 101 ¶¶ 128-30.

14

Four days later, Bistrian‘s counsel wrote a letter to

Warden Levi to request that he release Bistrian from the SHU

and to inform him that Bistrian continued to suffer from

physical and psychological injuries as a result of his prior

confinement in the SHU and the two prior assaults. App. 101-

102 ¶ 131. During this stint in the SHU, Warden Levi told

Bistrian he ―would not see the light of day again.‖ App. 102

¶¶ 133. He also sent FDC staff members to coerce Bistrian

into confessing by telling him that he would not be released

from the SHU unless he confessed to the alleged violations.

App. 102 ¶ 134. Bistrian remained in the SHU until

December 4, 2007. App. 102 ¶ 132.

On March 14, 2008, Judge DuBois sentenced Bistrian

to 57 months‘ imprisonment. App. 8.

II. Procedural Background

Bistrian filed this suit in June 2008. Of the 19 counts

in the Complaint, Counts I-V allege violations of Bistrian‘s

Fifth Amendment substantive and procedural due process

rights, Counts VI-IX relate to the Eighth Amendment, Count

X is a First Amendment retaliation claim, and Counts XI-XIX

are against the United States under the Federal Tort Claims

Act (―FTCA‖). Bistrian seeks $50 million in damages against

the FDC defendants in addition to other relief. See, e.g., App.

109 ¶ 156.

Each of the defendants moved to dismiss the

Complaint, arguing, among other things, that Bistrian failed

to exhaust his administrative remedies, that his claims were

untimely, and that he failed to allege sufficient facts to state

claims that overcome their entitlement to qualified immunity.

The District Court granted motions to dismiss 13 of the 19

counts (Counts VI-IX and XI-XIX). The propriety of these

dismissals is not before us.

15

The Court denied, however, the FDC defendants‘

motion to dismiss Counts I-V and Count X. The Court found

that Bistrian adequately alleged individual involvement of the

28 named defendants in the constitutional torts at issue to

survive dismissal on qualified immunity grounds.

Twenty-seven of the 28 defendants appeal the District

Court‘s refusal to dismiss Count I-V and X. In his appellate

brief, Bistrian — ―[i]n the interests of narrowing the scope of

this action‖— does not oppose Appellants‘ challenge to his

claim sounding in deliberate indifference to medical needs

(Count IV, Fifth Amendment), but he intends to proceed on

that claim against defendant Reynolds, who has not appealed

the District Court‘s decision. Bistrian Br. 2. He also

concedes in his brief to the dismissal of Appellants Martinez,

Kaiser, Dalmasi, Fausto, Bokhari, Alsbrooks, Zorrilla, Massa,

and Still. Id. at 2-3. Counsel further clarified the

configuration of claims and appellants in play at oral

argument.

Taking into account the District Court‘s decision and

Bistrian‘s concessions and clarifications, the following claims

and persons are at issue in this appeal.

Count I: Fifth Amendment Substantive Due Process (Failure

to Protect)

 Claim: Appellants failed to protect Bistrian from the

June 30, 2006 assault, both before and during the

attack.

 Appellants/defendants (13): (1-10) The 10 Prison

Management Defendants; (11) Sr. Officer Bowns; (12)

Lt. Rodgers; and (13) Lt. Robinson.

16

Count II: Fifth Amendment Substantive Due Process (Failure

to Protect)

 Claim: Appellants failed to protect Bistrian from the

October 12, 2006 assault, both before and during the

attack.

 Appellants/defendants (12): (1-10) The 10 Prison

Management Defendants; (11) Lt. Dempsey; and (12)

Lt. Acker.

Count III: Fifth Amendment Substantive Due Process

(Punitive Detention)

 Claim: Bistrian‘s placement and continued detention

in the SHU deprived him of his liberty interest, as an

inmate awaiting sentencing, in being free from

punishment.

 Appellants/defendants (13): (1-10) The 10 Prison

Management Defendants; (11) Lt. Rodgers; (12) Lt.

Robinson; and (13) Lt. Armisak.

Count V: Fifth Amendment Procedural Due Process

 Claim: Bistrian‘s placement and continued detention

in the SHU failed to comply with the Fifth

Amendment‘s procedural due process requirements.

 Appellants/defendants (11): (1-10) The 10 Prison

Management Defendants; and (11) Lt. Wilson.

17

Count X: First Amendment (Retaliation)

 Claim: Bistrian‘s placement and continued detention

in SHU after his attorney challenged his previous

placement as retaliatory for exercising First

Amendment rights.

 Appellants/defendants (10): (1-10) The 10 Prison

Management Defendants.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331.

The collateral order doctrine allows this appeal because it is

from an order denying a motion to dismiss that raises a

qualified immunity defense turning on an issue of law. See

Ashcroft v. Iqbal, 556 U.S. 662, 670-75 (2009); Argueta v.

U.S. Immigration & Customs Enforcement, 643 F.3d 60, 69

(3d Cir. 2011) (―Pursuant to Iqbal, our appellate jurisdiction

extends beyond merely determining whether the complaint

avers a clearly established constitutional violation, and we

also have the power to consider the sufficiency of the

complaint itself.‖).

We exercise plenary review over the District Court‘s

denial of Appellants‘ motion to dismiss. See Iqbal, 556 U.S.

at 674; Argueta, 643 F.3d at 69.

IV. Discussion

We must decide whether the Complaint adequately

alleges Appellants‘ personal involvement in the violation of

Bistrian‘s clearly established constitutional rights. Appellants

claim the Complaint ―attributes a string of several defendants

18

to each allegation of wrongful conduct,‖ and in doing so ―this

‗everyone in the institution‘ pleading . . . fails to provide the

personal involvement or some affirmative action by the

individual defendants.‖ Appellants‘ Br. 3. They also argue

that they are entitled to qualified immunity because some of

the alleged misconduct does not involve the violation of

clearly established constitutional rights. Thus, they insist that

the Complaint must be dismissed.

A. The Pleading Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a

pleading contain a ―short and plain statement of the claim

showing that the pleader is entitled to relief.‖ The Supreme

Court‘s most recent explications of this Rule appear in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Iqbal.

Our Court has had several occasions to examine those

decisions in depth, see, e.g., Argueta, 643 F.3d at 70-73;

Santiago v. Warminster Twp., 629 F.3d 121, 129-30 (3d Cir.

2010); Fowler v. UPMC Shadyside, 578 F.3d 203, 209-211

(3d Cir. 2009), and so we begin by recounting only their

essential teachings.

The touchstone of the pleading standard is plausibility.

The Court in Iqbal explained that

[t]o survive a motion to dismiss, a

complaint must contain sufficient

factual matter, accepted as true, to

state a claim to relief that is

plausible on its face. A claim has

facial plausibility when the

plaintiff pleads factual content

that allows the court to draw the

reasonable inference that the

defendant is liable for the

19

misconduct alleged. The

plausibility standard is not akin to

a probability requirement, but it

asks for more than a sheer

possibility that a defendant has

acted unlawfully. Where a

complaint pleads facts that are

merely consistent with a

defendant‘s liability, it stops short

of the line between possibility and

plausibility of entitlement to

relief.

556 U.S. at 678 (citations and quotation marks

omitted).

To determine whether a complaint meets the pleading

standard, our analysis unfolds in three steps. First, we outline

the elements a plaintiff must plead to a state a claim for relief.

See id. at 675; Argueta, 643 F.3d at 73. Next, we peel away

those allegations that are no more than conclusions and thus

not entitled to the assumption of truth. See Iqbal, 556 U.S. at

679; Argueta, 643 F.3d at 73. Finally, we look for well-pled

factual allegations, assume their veracity, and then ―determine

whether they plausibly give rise to an entitlement to relief.‖

Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. This last step

is ―a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.‖ Iqbal,

556 U.S. at 679.

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, the Supreme Court recognized an

implied private right of action for damages against federal

officials who have violated a person‘s Fourth Amendment

rights. 403 U.S. 388 (1971). The Court has extended the

Bivens implied right of action to suits for damages brought

20

under the equal protection component of the Due Process

Clause of the Fifth Amendment, see Davis v. Passman, 442

U.S. 228 (1979), and the Cruel and Unusual Punishments

Clause of the Eighth Amendment, see Carlson v. Green, 446

U.S. 14 (1980). Since Carlson, however, the Court ―has

consistently refused to extend Bivens liability to any new

context or new category of defendants.‖ Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001). Nonetheless, ―[i]n the

limited settings where Bivens does apply, the implied cause of

action is the ‗federal analog to suits brought against state

officials under . . . 42 U.S.C. § 1983.‘‖ Iqbal, 556 U.S. at

675-76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2

(2006)). When the claim is available, ―[t]he factors necessary

to establish a Bivens violation will vary with the

constitutional provision at issue.‖ Id. at 676.

But unlike other legal contexts, ―[g]overnment

officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat

superior.‖ Id. ―Because vicarious liability is inapplicable to

Bivens and § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official‘s own

individual actions, has violated the Constitution.‖ Id.5

5

This case gives us no occasion to wade into the muddied

waters of post-Iqbal ―supervisory liability.‖ ―Numerous

courts, including this one, have expressed uncertainty as to

the viability and scope of supervisory liability after Iqbal.‖

Santiago, 629 F.3d at 130 n.8 (collecting cases); see also

Argueta, 643 F.3d at 70. Neither the parties nor the District

Court mention ―supervisory liability‖ as a possible basis for

recovery here. As we understand his claims, Bistrian alleges

that the named defendants directly and personally participated

21

Moreover, the sufficiency of a plaintiff‘s allegations in

a Bivens action is ―inextricably interwined with‖ and ―directly

implicated by‖ the defense of qualified immunity. Iqbal, 556

U.S. at 673. Under that defense, ―government 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). For a

constitutional right to be clearly established, its contours

―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). To meet

this test, generally ―there must be sufficient precedent at the

time of [the defendant‘s] action, factually similar to the

plaintiff‘s allegations, to put [the] defendant on notice that his

or her conduct is constitutionally prohibited.‖ McLaughlin v.

Watson, 271 F.3d 566, 572 (3d Cir. 2001). Thus, to

overcome the assertion of qualified immunity at the motion to

dismiss stage, a plaintiff must sufficiently plead not only a

violation of a constitutional or statutory right, but also a

violation of a clearly established one.

B. Counts I & II: Failure to Protect from

Inmate Violence

―Being violently assaulted in prison is simply not part

of the penalty that criminal offenders pay for their offenses

against society.‖ Farmer v. Brennan, 511 U.S. 825, 834

(1994) (quotation marks omitted). As such, the Eighth

Amendment‘s Cruel and Unusual Punishments Clause

imposes on prison officials ―a duty to protect prisoners from

violence at the hands of other prisoners.‖ Id. at 833

in the alleged unconstitutional conduct. That is the only

theory of recovery we consider.

22

(quotation marks omitted); see also Beers-Capitol v. Whetzel,

256 F.3d 120, 130-33 (3d Cir. 2001); Hamilton v. Leavy, 117

F.3d 742, 746 (3d Cir. 1997).

The Cruel and Unusual Punishments Clause, however,

does not apply until an inmate has been both convicted of and

sentenced for his crimes. See Graham v. Connor, 490 U.S.

386, 392 n.6 (1989); Hubbard v. Taylor, 399 F.3d 150, 164

(3d Cir. 2005) (hereinafter ―Hubbard I‖). Thus, an inmate

awaiting sentencing must look to either the Fifth

Amendment‘s or the Fourteenth Amendment‘s Due Process

Clause for protection. See Bell v. Wolfish, 441 U.S 520, 535

n.16 (1979); Fuentes v. Wagner, 206 F.3d 335, 341-42 (3d

Cir. 2000). We have not yet in a precedential opinion

recognized that an unsentenced inmate may bring a due

process-grounded failure-to-protect claim of the sort that a

sentenced inmate can bring under the Eighth Amendment.

But it is well established that, under the Constitution‘s

guarantees of due process, an unsentenced inmate ―is

entitled[,] at a minimum, to no less protection than a

sentenced inmate is entitled to under the Eighth Amendment.‖

Fuentes, 206 F.3d at 344 (quotation marks and alterations

omitted). Therefore, Bistrian — as an inmate who at all

relevant times was either not yet convicted or convicted but

not yet sentenced — had a clearly established constitutional

right to have prison officials protect him from inmate

violence.6

Still, not ―every injury suffered by one prisoner at the

hands of another . . . translates into constitutional liability for

6

Although it is a misnomer, the case law often refers to an

inmate awaiting sentencing — even if he has pled guilty to

his crimes or been convicted after trial — as a ―pretrial

detainee.‖ See, e.g., Fuentes. 206 F.3d at 341-43.

23

prison officials responsible for the victim‘s safety.‖ Farmer,

511 U.S. at 834. To state a claim for damages against a

prison official for failure to protect from inmate violence, an

inmate must plead facts that show (1) he was incarcerated

under conditions posing a substantial risk of serious harm, (2)

the official was deliberately indifferent to that substantial risk

to his health and safety, and (3) the official‘s deliberate

indifference caused him harm. Id. at 834; Hamilton, 117 F.3d

at 746.

―Deliberate indifference‖ in this context is a subjective

standard: ―the prison official-defendant must actually have

known or been aware of the excessive risk to inmate safety.‖

Beers-Capitol, 256 F.3d 120 at 125. It is not sufficient that

the official should have known of the risk. Id. at 133. A

plaintiff can, however, prove an official‘s actual knowledge

of a substantial risk to his safety ―in the usual ways, including

inference from circumstantial evidence.‖ Farmer, 511 U.S. at

842. In other words, ―a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the

risk was obvious.‖ Id.

Prison officials may escape liability for deliberate

indifference claims in several ways. They ―might show, for

example, that they did not know of the underlying facts

indicating a sufficiently substantial danger and that they were

therefore unaware of a danger, or that they knew the

underlying facts but believed (albeit unsoundly) that the risk

to which the facts gave rise was insubstantial or nonexistent.‖

Id. at 844. ―In addition, prison officials who actually knew of

a substantial risk to inmate health or safety may be found free

from liability if they responded reasonably to the risk, even if

the harm ultimately was not averted.‖ Id. “Whether one puts

it in terms of duty or deliberate indifference, prison officials

who act reasonably cannot be found liable‖ on a failure-to-

protect claim. Id. at 845; see also Hamilton, 117 F.3d at 746

24

(noting that prison officials have ―a duty . . . to take

reasonable measures to protect prisoners from violence at the

hands of other prisoners‖) (quotation marks omitted).

1. The Officials‘ Alleged Deliberate

Indifference to the Risk Posed by

Bistrian‘s Continued Detention in the SHU

We do not infer that the decision to keep Bistrian in

the SHU after his cooperation became exposed was, by itself,

unreasonable. This is so whether we ―put[] it in terms of duty

or deliberate indifference.‖ Farmer, 511 U.S. at 845. More

is needed to sustain a failure-to-protect claim.

BOP regulations suggest that, generally speaking,

officials can better protect inmates when they are in the SHU

rather than the general population. See 28 C.F.R. § 541.22

(describing SHUs as units ―where inmates are securely

separated from the general inmate population‖ to ―help ensure

the safety, security, and orderly operation of correctional

facilities‖). According to Bistrian‘s own allegations, inmates

in the SHU are in solitary or near-solitary conditions ―for 23

to 24 hours a day, with little or no opportunity to interact with

other inmates.‖ App. 75 ¶ 12. Given these conditions, it

seems reasonable to assume that an inmate would generally

be less at physical risk in the SHU than elsewhere in the

prison.

Still, placing an informant in the SHU does not

automatically shield officials from suit. If they are

deliberately indifferent to a particular risk that an informant

faces while in the SHU, that may form the basis of a failure-

to-protect claim. For example, the Court of Appeals for the

Eighth Circuit has held that allowing an inmate with known,

violent propensities to have access to an informant in

administrative segregation was unreasonable and thus a

25

possible constitutional violation. Yet it described the decision

to move the informant to administrative segregation in the

first place as ―an apparently reasonable response.‖ Reece v.

Groose, 60 F.3d 487, 491 (8th Cir. 1995). Here too we

conclude that keeping Bistrian in the SHU was itself not

unreasonable, but we also consider whether Bistrian has

plausibly alleged that officials were deliberately indifferent to

specific and substantial risks that he faced while in the SHU.

2. The Officials‘ Alleged Deliberate

Indifference to the Risk Posed by

Bistrian‘s Placement in a Locked

Recreation Pen with Northington, et al.

After stripping away conclusory allegations not

entitled to the presumption of truth, we conclude that Bistrian

states a plausible failure-to-protect claim against the ten

Prison Management Defendants, Lts. Rodgers and Robinson,

and Sr. Officer Bowns based on Bistrian‘s placement in the

recreation yard with Northington and his gang. First, Bistrian

alleges that putting him in a locked recreation area with

Northington et al. posed a substantial risk of serious harm

because (a) Northington and others knew of Bistrian‘s

cooperation with prison officials plus (b) Northington had a

violent criminal past and had previously threatened to attack

Bistrian in the recreation yard because of that cooperation.

Second, Bistrian alleges that officials were deliberately

indifferent to the obvious risk posed because they made no

attempt to prevent his placement in the yard with Northington

despite the fact that he (Bistrian) repeatedly advised the

officials responsible for the photocopying operation of the

threats Northington and others made. Third, Bistrian pleads

causation: Northington and two other inmates violently

attacked him on June 30, 2006 in the recreation yard because

he cooperated with prison officials, not for some other reason.

26

We consider the supporting factual allegations in further

detail.

First, Bistrian has plausibly alleged that Northington

and other inmates knew that he was cooperating with prison

officials. Bistrian claims that ―[o]n one particular occasion,‖

after FDC officials photocopied an intercepted note, they

placed the photocopy in the delivery envelope instead of the

original. App. 91 ¶ 84. It is reasonable to infer that the

intended recipient could recognize the difference between a

hand-written note and a photocopy, and immediately assume

Bistrian‘s cooperation with prison officials. Bistrian also

alleges that, on unspecified occasions, officials failed to

return to him all notes for delivery. App. 91 ¶ 85. Again, it is

reasonable to infer that the inmates who sent the undelivered

notes eventually learned that they were not delivered and

assumed Bistrian‘s cooperation with prison officials. We are

further convinced of the reasonableness of these inferences

because Bistrian began receiving multiple threats from the

notes‘ intended recipients, including Northington, who

threatened him on more than one occasion when they were

together in the recreation yard. App. 91-92 ¶ 86.

Next, having plausibly pled that Northington and other

inmates knew of his cooperation, Bistrian has also plausibly

pled that that they were likely to retaliate violently if placed

in the same locked recreation cage. Northington was not a

non-violent, white-collar criminal. He was a member of a

violent drug gang with a prior conviction for (among other

things) robbery and aggravated assault. App. 89 ¶¶ 74-75. At

the time he was also a co-defendant in an ongoing

prosecution that involved substantial witness intimidation,

death threats to witnesses and law enforcement, and a

firebombing that killed six family members of the

Government‘s chief cooperating witness. App. 90 ¶¶ 78-79.

Not only did Northington have violent propensities, but he

27

made his violent intentions quite clear by threatening Bistrian

on more than one occasion when they were together in the

recreation yard. App. 91-92 ¶ 86

Turning to the officials‘ supposed deliberate

indifference, Bistrian plausibly alleges that certain prison

officials actually knew that he faced an excessive risk of harm

by being placed in the SHU recreation yard with Northington

and his cronies but failed to take any preventive measures.

According to Bistrian, he ―repeatedly advised (both verbally

and in writing)‖ FDC officials, including Lts. Gibbs, Rodgers,

and Robinson, Sr. Officers Bowns, Jezior, and Bergos, and

Special Investigative Agents McLaughlin and Garraway, of

the multiple threats Northington and others made after

Bistrian‘s cooperation was exposed as well as the specific risk

that he would suffer serious harm if placed in the recreation

yard with them at same time. App. 92 ¶ 87. Yet, based on

what is before us, nothing was done to abate the potential

threat.

We acknowledge that when inmates claim they are in

danger, they confront prison officials with an ―arduous task.‖

Young v. Quinlan, 960 F.2d 351, 363 n.23 (3d Cir. 1992).

―[P]risoners may feign their fear of physical harm simply to

manipulate a transfer,‖ in the hope, for example, of obtaining

more desirable living arrangements. Id. (quotation marks

omitted). But here, Bistrian sets out sufficient factual

allegations, which we must accept as true, that make his

repeated pleas radically different from an out-of-the-blue and

unadorned ―I‘m-in-trouble‖ entreaty. The eight officials that

Bistrian claims he ―repeatedly advised (both verbally and in

writing)‖ were the very officials that orchestrated the botched

note-photocopying operation. App. 90 ¶¶ 80-82. Given their

familiarity with the scheme and the players involved, it is

quite plausible that they knew Bistrian‘s cries for help were

legitimate and that he faced a substantial risk of serious harm.

28

After all, the genesis of the operation was a desire to assist an

FBI investigation into violent criminal activity by

Northington and others that included, among other things,

substantial witness intimidation. App. 90 ¶ 78.

Moreover, the alleged number of tortfeasors in this

case does not undermine the plausibility of the underlying

torts. In Young v. Quinlan, we allowed an inmate‘s failure-to-

protect claim to proceed past summary judgment when,

among other things, he claimed to have ―told [ten named

prison officials] several times that he was concerned for his

safety and needed to be placed in protective custody,‖ and

each of these ten officials had failed to respond reasonably to

stop the assaults by other inmates. 960 F.2d 351, 363 (3d Cir.

1992). Here too the fact that Bistrian claims to have

specifically warned eight officials of the risks he faced does

not transform his allegations into impermissible ―group

pleading.‖

In addition, it is reasonable to infer at this early stage

that the other Prison Management Defendants also knew of

the substantial risk Bistrian faced by being put in the same

locked recreation yard as Northington and failed to respond

reasonably. Bistrian claims that the ten Prison Management

Defendants met ―[o]n a weekly basis . . . to review the list of

inmates in the SHU and discuss and determine which inmates

would be released from the SHU and which inmates would

remain confined.‖ App. 80 ¶ 38. Five (Gibbs, Jezior, Bergos,

McLaughlin, and Garraway) of those ten people were

involved in the note operation and, for the reasons discussed

above, plausibly were aware of the risk Bistrian faced.

Affording Bistrian all reasonable inferences from his

allegations and construing them in the light most favorable to

him, as we must, it is plausible that these five Appellants

discussed the problems with the note operations and the

threats Bistrian repeatedly reported with the remainder of the

29

Prison Management Defendants during their weekly

meetings.

Of course, discovery may reveal that some Prison

Management Defendants did not know that the lid had been

blown off the note sting, or, if they did know, that some

objected to Bistrian‘s continued use of the recreation yard

with the inmates he cooperated against. At this point,

however, we cannot expect clairvoyance from Bistrian. He

obviously was not present for Prison Management

Defendants‘ meetings, but he has alleged other facts that

plausibly suggest that they knew about his situation and failed

to respond. Further investigation will show what was

discussed behind closed doors.

Finally, Bistrian has alleged adequate facts to suggest

that he was attacked as a result of his being an informant and

the FDC officials‘ failure to respond reasonably to the

dissemination of that fact. It can be plausibly inferred from

the fact Northington himself was one of the assailants that he

attacked Bistrian because of the latter‘s cooperation. Further,

Northington‘s behavior immediately before and after that

attack also suggests that it occurred because Bistrian was an

informant. Northington and two other SHU inmates

approached Bistrian in the SHU recreation pen and began

arguing about a note that he failed to deliver. App. 93 ¶ 92.

In a post-attack interview, Northington complained about

being in prison ―because of rats‖ and lamented how Bistrian

was ―being used to get him [Northington] another case.‖

App. 237.

In sum, Bistrian has stated a plausible claim that

thirteen officials violated their constitutional duty to protect

him from inmate violence by being deliberately indifferent to

the risk posed by his placement in the recreation yard with

Northington and others who knew of his prior complicity with

30

prison authorities. If this claim fails to survive a motion to

dismiss, little does.

3. The Officials‘ Alleged Deliberate

Indifference to the Risk Posed by

Bistrian‘s Placement in a Locked

Recreation Pen with Taylor

Given prisoners‘ attitudes about ―snitches,‖ it is

reasonable to infer that placing Bistrian in a locked recreation

pen with any violent inmates, not only those he specifically

cooperated against, created a substantial risk of serious harm.

But Bistrian does not allege that Taylor had any connection to

Northington and his cohorts or that Taylor otherwise attacked

him because he was an informant. Instead, Bistrian refers to

Taylor‘s ―history of violent assaults against other inmates‖ in

his complaint, and generally creates the impression that

Taylor‘s attack was unprovoked, inexplicable, and unrelated

to his participation in the note-copying operation. App. 96 ¶

105; 97 ¶ 107; 110 ¶ 158.7 Thus, according to Bistrian, the

risk of the harm that occurred was the risk that an inmate with

a history of violence might attack another inmate for an

unknown reason. We cannot conclude on these allegations

that prison officials were deliberately indifferent to such a

speculative risk.

7

Lt. Acker‘s report of the incident, which was attached to

Bistrian‘s complaint, suggests the attack may have been

motivated by Taylor‘s belief that Bistrian was a racist. App.

276. Bistrian makes no reference in the complaint itself to

the apparent racial tensions infecting FDC Philadelphia at the

time, which we described in our opinion in Taylor‘s case, nor

to Taylor‘s allegations that Bistrian instigated the attack in the

yard by telling Taylor that he was ―going down.‖ See Taylor,

686 F.3d at 185.

31

4. The Officials‘ Alleged Failure to Intervene

Appropriately in the Assaults

In Smith v. Messinger, we held that a corrections

officer who fails to intervene when other officers are beating

an inmate may be liable on a failure-to-protect claim if the

officer had ―a realistic and reasonable opportunity to

intervene‖ and ―simply refused to do so.‖ 293 F.3d 641, 650-

51 (3d Cir. 2002). We are hardly breaking new ground by

extending this standard to inmate-on-inmate attacks. As the

Court of Appeals for the Seventh Circuit has observed, if an

officer witnesses an inmate assault and fails to intervene, ―his

actions would seemingly constitute a paradigm case of

deliberate indifference.‖ Grieveson v. Anderson, 538 F.3d

763, 778 (7th Cir. 2008) (quotation marks omitted).

In this case, Bistrian faults the guards who were

present for his assaults for not responding quickly and

aggressively enough. No doubt, there are some

circumstances in which an officer‘s response to an inmate

attack is so half-hearted that it effectively amounts to no

response at all. If well-pled, such a claim can survive a

motion to dismiss. But surely there are cases at the other end

of the spectrum in which an inmate fails to allege that an

officer‘s response was so unreasonable as to give rise to an

entitlement to relief. For example, if an inmate alleges that an

assailant landed two punches in rapid succession, the fact that

guards saw the first punch and reacted quickly enough to

prevent a third, but not the second, is not unreasonable. Such

an allegation would not survive a motion to dismiss. The key

is whether prison officials acted reasonably; if so, they cannot

be found liable on a failure-to-protect claim. See Farmer,

511 U.S. at 845.

With respect to the Northington attack, Bistrian claims

that Sr. Officer Jezior was deliberately indifferent because he

32

intervened ―[o]nly after several minutes of continued

pummeling.‖ App. 93-94 ¶ 95. But, according to Jezior‘s

post-incident memorandum (which Bistrian attached to his

complaint), Jezior was not standing around and doing

nothing. He came to the SHU recreation pen in response to

an alarm and, when he arrived, several officers (himself

included) unsuccessfully ordered the assailant to stop. App.

250. When ―enough staff were present,‖ they entered the pen

and subdued the assailant. Id. At this point, we must

construe the facts in the light most favorable to Bistrian and

afford him all reasonable inferences. With that in mind, we

believe that Bistrian‘s allegations raise enough questions

about the reasonableness of Jezior‘s response to preclude

dismissal. How long did Jezior shout orders to Northington

before realizing that his words were futile? How often, in

Jezior‘s experience, does a prisoner stop violently assaulting

another inmate simply because a guard orders him to do so?

How many guards are ―enough‖ to break up a fist fight?

Discovery is needed. It may be that summary judgment for

Jezior is on the horizon. But right now we conclude that

Bistrian has plausibly alleged that Jezior responded

unreasonably to the attack, and thus this claim survives a

motion to dismiss.

We reach a different result with respect to the Taylor

attack. To repeat, officials at the scene attempted to stop the

attack by firing pepper spray into the recreation cage. When

this proved ineffective, they used a ―Tactical Blast Stun

Munition‖ to incapacitate Taylor. App. 97 ¶ 109; 269.

Bistrian insists that Captain Knox and Lts. Acker and

Dempsey acted with deliberate indifference by delaying their

use of the Tactical Blast Stun Munition and their decision to

intervene forcibly. App. 97 ¶ 111. Given the facts alleged, it

is difficult, if not impossible, for us to glean deliberate

indifference from the guards‘ weapon of choice. Although

the pepper spray ultimately proved ineffective, Bistrian does

33

not allege facts that suggest the decision to use it was

unreasonable.

C. Count III: Punitive Detention

Next, Bistrian argues that his detention in

administrative segregation for 447 days deprived him of his

clearly established liberty interest to be free from punishment

before sentencing, in violation of the Fifth Amendment‘s Due

Process Clause.

It is important to explain the significance of Bistrian‘s

constitutional status as a ―pretrial detainee,‖ a category of

detainees that includes all inmates awaiting sentencing. A

conviction alone does not extinguish all liberty interests

protected by the Constitution‘s guarantee of due process:

―[t]he right to remain at liberty continues until a court

pronounces a judgment of sentence, although after a jury has

pronounced a guilty verdict the court may insist upon greater

assurance that a defendant will submit to sentence.‖ Cobb v.

Aytch, 643 F.2d 946, 962 (3d Cir. 1981) (en banc). As such,

pretrial detainees have ―federally protected liberty interests

that are different in kind from those of sentenced inmates.‖

Id. at 957. ―Unlike sentenced prisoners, who . . . must look to

state law for the protection of their personal liberties, pretrial

detainees have liberty interests firmly grounded in federal

constitutional law.‖ Id.

Given pretrial detainees‘ federally protected liberty

interests, the Supreme Court in Bell v. Wolfish held that

―under the Due Process Clause . . . a detainee may not be

punished prior to an adjudication of guilt in accordance with

due process of law.‖ 441 U.S. 520, 535 (1979).8 Still, ―[n]ot

8

Although pretrial detainees are, at least, on equal footing

with sentenced inmates when they claim that prison officials

34

every disability imposed during pretrial detention amounts to

‗punishment‘ in the constitutional sense . . . .‖ Id. at 537. For

example, conditions that are reasonably related to a penal

institution‘s interest in maintaining jail security typically pass

constitutional muster. Id. at 540. Under Bell, a ―particular

measure amounts to punishment when there is a showing of

express intent to punish on the part of detention facility

officials, when the restriction or condition is not rationally

related to a legitimate non-punitive government purpose, or

when the restriction is excessive in light of that purpose.‖

Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (quoting

Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999)). ―In

evaluating a pretrial detainees‘s claim of unconstitutional

punishment, courts must examine the totality of the

circumstances within the institution.‖ Id. Since Bell, we have

conducted exhaustive examinations of the Court‘s ―no-

punishing-pretrial-detainees‖ rule and applied the Court‘s

teachings in a long series of decisions. See, e.g., Hubbard v.

Taylor, 538 F.3d 229, 231-36 (3d Cir. 2008) (hereinafter

―Hubbard II‖); Stevenson, 495 F.3d at 67-69; Hubbard I, 399

F.3d at 157-68; Fuentes, 206 F.3d at 341-43; Union Cnty. Jail

Inmates v. Di Buono, 713 F.2d 984, 991-92 (3d Cir. 1983).

Despite our history with the Bell test and the

distinction it draws between those inmates sentenced and

those not, Appellants confusingly pin their qualified

immunity hopes to our decisions in Griffin v. Vaughn, 112

failed to protect them from other inmates, they have an

indisputable advantage when they claim that they were

unconstitutionally punished. See Bell, 441 U.S. at 535 n.16

(1979) (―Due process requires that a pretrial detainee not be

punished. A sentenced inmate, on the other hand, may be

punished, although that punishment may not be ‗cruel and

unusual‘ under the Eighth Amendment.‖).

35

F.3d 703 (3d Cir. 1997), and Fuentes v. Wagner, 206 F.3d

335 (3d Cir. 2000). See Appellants‘ Br. 48-49. In Griffin we

held that the conditions experienced by a sentenced inmate

while in the SHU did not impose on him an ―atypical and

significant hardship‖ such that he was deprived of a state-

created liberty interest in violation of the Fourteenth

Amendment‘s Due Process Clause. 112 F.3d at 706 (quoting

Sandin v. Conner, 515 U.S. 472, 484 (1995)). But as Griffin

itself makes clear and as we have explained at least twice

before, Sandin‘s ―atypical and significant hardship‖ test

applies only to sentenced inmates, while the Bell test applies

to pretrial detainees. See Stevenson, 495 F.3d at 69 n.4

(―Sandin does not apply [to pretrial detainees]. Sandin

concerned punishment of a sentenced prisoner, and therefore

required a completely different analysis.‖) (quoting Fuentes,

206 F.3d at 342 n.9).

Fuentes also offers Appellants no help. They point to

our statement in that case that ―it is impractical to draw a line

between convicted prisoners and pretrial detainees for the

purpose of maintaining jail security.‖ Appellants Br. 49

(quoting Fuentes, 206 F.3d at 347). This selective quotation

is, at best, misguided and closer to misleading. As we

explained in Fuentes, ―claims based on excessive force and

claims based on conditions of confinement are different in

kind.‖ 206 F.3d at 347 (quoting Valencia v. Wiggins, 981

F.2d 1440, 1446 (5th Cir. 1993)). Because of this difference,

we did not apply the Bell due process standard concerning

confinement to a pretrial detainee‘s excessive force claim.

Instead, we held that the more demanding ―Eighth

Amendment cruel and unusual punishments standards found

in Whitley v. Albers, 475 U.S. 312 (1986) and Hudson v.

McMillian, 503 U.S. 1 (1992) apply to a pretrial detainee‘s

excessive force claim arising in the context of a prison

disturbance.‖ Id. (emphasis in original). Not surpisingly, in

that context we could ―draw no logical or practical distinction

36

between a prison disturbance involving pretrial detainees,

convicted but unsentenced inmates, or sentenced inmates.‖

Id. Nor could we expect prison guards ―to draw such precise

distinctions between classes of inmates when those guards are

trying to stop a prison disturbance.‖ Id. at 347-48. We are

puzzled, to say the least, how Fuentes assists Appellants in

their assertion that they are entitled to qualified immunity

from Bistrian‘s conditions-of-confinement claim.

Here, Bistrian alleges that officials punished him by

placing him in the SHU for 447 days of administrative

segregation. With respect to the nature of his confinement in

the SHU, he claims:

 ―Inmates … receive meals in their cells with no

communal time permitted‖;

 ―Recreational activities in the SHU are virtually

nonexistent, and basic supplies such as paper

and pencils are difficult to obtain‖;

 ―Inmates housed in the SHU are confined to

solitary or near-solitary confinement … for 23

to 24 hours a day, with little or no opportunity

to interact with other inmates…,‖ together with

―sensory deprivation, with poorly lighted cells

and smoked windows to prevent outside

visibility‖;

 ―Medical care in the SHU is absent or

deficient‖; and

 ―Inmates housed in the SHU have reduced

access to personal property and to legal

materials and have limited ability to file

37

administrative grievances,‖ and ―[a]ccess to

legal counsel is limited.‖

App. 75 ¶ 12. In addition, Bistrian alleges that ―[d]ue to the

SHU‘s isolative and claustrophobic nature, suicide attempts

are not uncommon in the SHU … [, where] there is a greater

tendency among inmates to attempt suicide‖ than in other

parts of the prison. App. 75 ¶ 13.

Given these conditions, Bistrian‘s complaint raises the

reasonable inference that some of his time spent in

administrative detention was excessive in light of any

legitimate non-punitive government purpose for his

segregation. Bistrian was first confined in administrative

detention in the SHU from November 18, 2005 until

December 9, 2005, pending a hearing on the ―minor offense

of telephone abuse – non-criminal.‖ App. 85 ¶¶ 57-59. After

a DHO sanctioned him to 30 days‘ disciplinary segregation,

he was released from the SHU on January 9, 2006. App. 85

¶¶ 59. Given Appellants‘ failure to assert any legitimate non-

punitive need for the segregation, Bistrian has plausibly

alleged that it was excessive to keep him in the SHU for

nearly a month while awaiting a hearing on seemingly minor

telephone infractions.

The same may be said for Bistrian‘s second stint in the

SHU for alleged telephone infractions, starting on January,

2006, though only until April or May, 2006, when Bistrian

agreed to intercept notes and cooperate against his fellow

detainees. For the remainder of his second stay and his third

(from December 22, 2006 to January 25, 2007), prison

officials had a legitimate non-punitive purpose for Bistrian‘s

detention in the SHU — having him participate in the note-

copying scheme and keeping him in what they thought was

the safest possible place in the prison. With respect to his

fourth confinement in the SHU, however, it is plausibly

38

alleged that Warden Levi expressly intended to punish

Bistrian by placing him there after his lawyer challenged his

previous confinement.

As discussed above, it is sufficient at this point that

Bistrian has alleged that the Prison Management Defendants

each shared responsibility for his placement in the SHU. He

has not sufficiently pled, however, how Lt. Rodgers, Lt.

Robinson, and Lt. Armisak, who are not among the Prison

Management Defendants, were involved in the violation of

his substantive due process rights.

D. Count IV: Violation of Bistrian’s Procedural

Due Process Rights

―Although pretrial detainees do not have a liberty

interest in being confined in the general prison population,

they do have a liberty interest in not being detained

indefinitely in the SHU without explanation or review of their

confinement.‖ Stevenson, 495 F.3d at 69. Thus, procedural

due process requires prison officials to ―provide detainees

who are transferred into more restrictive housing [,] for

administrative purposes only [,] an explanation of the reason

for their transfer as well as an opportunity to respond.‖ Id. at

70.

Although Stevenson was decided in July 2007, after

Bistrian had already been confined in the SHU three times,

the rule the case announces was ―compelled by our holding in

Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000).‖ Stevenson, 495

F.3d at 69. In Shoats, we reaffirmed that sentenced inmates

are entitled to minimal due process under the Supreme

Court‘s decision in Hewitt v. Helms, 459 U.S. 460 (1983),

which held that the removal of a sentenced inmate from the

general prison population and his transfer into administrative

segregation requires at least a minimal degree of process. 213

39

F.3d at 144. As we explained in Stevenson, ―the protections

due to sentenced inmates [as discussed in Hewitt and Shoats]

provide a floor for what pretrial detainees may expect.‖ 495

F.3d at 69. Therefore, the law was sufficiently clear prior to

Stevenson that Plaintiff was entitled to an explanation and

opportunity to challenge his confinement.

Here, however, the District Court did not address

Bistrian‘s procedural due process claim at all. Taking a

similar route to the one we took in Stevenson, we ask the

Court to consider the issue in the first instance by

―examin[ing] the asserted purposes for [Bistrian‘s] detention,

and determin[ing] whether sufficient process has been

afforded.‖ Id. at 71.

E. Count X: First Amendment Retaliation

Bistrian claims the Prison Management Defendants

detained him in the SHU for a fourth time on September 13,

2007, in retaliation for protesting his prior confinements in

the SHU. App. 101 ¶ 128. As noted, the day after the

Assistant U.S. Attorney handling Bistrian‘s case notified

officials at FDC Philadelphia that Bistrian had challenged his

prior confinements in the SHU, he was (1) returned to the

SHU, (2) received an administrative detention order

indicating that he was being held ―pending investigation‖ of

alleged telephone infractions, and (3) attended a hearing

before the Unit Disciplinary Committee (where he promptly

received the sanction of a loss of phone privileges for 60

days). App. 101 ¶¶ 128-30. After Bistrian‘s counsel asked

Warden Levi to release Bistrian from the SHU, the Warden

purportedly told Bistrian he ―would not see the light of day

again.‖ App. 102 ¶¶ 133. Levi also allegedly sent FDC staff

members to coerce Bistrian into confessing by telling him that

he would not be released from the SHU unless he confessed

to the alleged violations. App. 102 ¶ 134.

40

Retaliating against a prisoner for the exercise of his

constitutional rights is unconstitutional. See, e.g., Mitchell v.

Horn, 318 F.3d 523, 529-31 (3d Cir. 2003); Rauser v. Horn,

241 F.3d 330, 333-34 (3d Cir. 2001); Allah v. Seiverling, 229

F.3d 220, 224-26 (3d Cir. 2000). To state a claim for

retaliation, a plaintiff must allege that: (1) he was engaged in

constitutionally protected conduct, (2) ―he suffered some

‗adverse action‘ at the hands of the prison officials‖; and (3)

―his constitutionally protected conduct was ‗a substantial or

motivating factor‘ in the decision‖ to take that action.

Rauser, 241 F.3d at 333.9

The plausibility of Bistrian‘s allegations with respect

to the first and third elements is not in dispute. Instead,

9

We acknowledge that the Supreme Court has been reluctant

to extend the Bivens implied right of action to new contexts,

and in recent cases has conspicuously avoided extending it to

First Amendment claims. See Reichle v. Howards, 132 S.Ct.

2088, 2093 n.4 (2012) (―We have never held that Bivens

extends to First Amendment claims.‖); Ashcroft v. Iqbal, 556

U.S. 662, 675 (2009) (―Because implied causes of action are

disfavored, the Court has been reluctant to extend Bivens

liability to any new context or new category of defendants.

. . . Indeed, we have declined to extend Bivens to a claim

sounding in the First Amendment. Petitioners do not press

this argument, however, so we assume, without deciding, that

respondent‘s First Amendment claim is actionable under

Bivens.‖). Our Court, however, relying on Bivens, has held

that ―a federal cause of action for damages may be implied

directly from the [F]irst [A]mendment.‖ Milhouse v. Carlson,

652 F.2d 371, 374 (3d Cir. 1981); see also Paton v. La Prade,

524 F.2d 862, 869-70 (3d Cir. 1975).

41

Appellants argue that Bistrian has not plausibly alleged an

―adverse action‖ because he was not ―impeded in his efforts

to complain to the outside world about his confinement in

[the] SHU.‖ Appellants‘ Br. 55. But whether placement in

the SHU was ―sufficient to deter a person of ordinary

firmness from exercising his constitutional rights‖ is an

objective inquiry and ultimately a question of fact. Rausser,

241 F.3d at 333; see also Allah, 229 F.3d at 225. In Allah, we

explained that where ―confinement in administrative

segregation resulted, inter alia, in reduced access to phone

calls, reduced access to the commissary, reduced access to

recreation, confinement in his cell for all but five hours per

week, denial of access to rehabilitative programs and,

significantly, inadequate access to legal research materials

and assistance,‖ ―[a] fact finder could conclude from those

facts that retaliatory continued placement in administrative

confinement would ‗deter a person of ordinary firmness from

exercising his First Amendment rights.‘‖ Id. (quoting Suppan

v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). As described

above, Bistrian has alleged very similar facts as to the nature

of this confinement in the SHU. Thus, his allegations create a

plausible inference that continued placement in the SHU was

retaliatory and in violation of his free speech rights.

V. Conclusion

For these reasons, we affirm in part, reverse in part,

and remand for proceedings consistent with this opinion. To

summarize, in addition to Bistrian‘s deliberate indifference

claim against Reynolds, which was not at issue here, the

following claims against the following defendants remain.

Count I: Fifth Amendment Substantive Due Process (Failure

to Protect)

 Claim: Appellants were deliberately indifferent to the

42

risk posed by placing Bistrian in the same locked

recreation pen as Northington and his gang.

 Appellants/defendants (13): (1-10) The 10 Prison

Management Defendants; (11) Sr. Officer Bowns; (12)

Lt. Rodgers; and (13) Lt. Robinson.

 Claim/defendant: Jezior was deliberately indifferent to

Bistrian‘s safety during the Northington attack.

Count III: Fifth Amendment Substantive Due Process

(Punitive Detention)

 Claim: Bistrian‘s first detention in the SHU, his

second until the beginning of the note-copying

operation, and his fourth, deprived him of his liberty

interest, as an inmate awaiting sentencing, to be free

from punishment.

 Appellants/defendants (10): (1-10) The 10 Prison

Management Defendants.

Count V: Fifth Amendment Procedural Due Process

 Claim: Bistrian‘s placement and continued detention

in the SHU failed to comply with the Fifth

Amendment‘s procedural due process requirements.

 Appellants/defendants (11): (1-10) The 10 Prison

Management Defendants; and (11) Lt. Wilson.

43

Count X: First Amendment (Retaliation)

 Claim: Bistrian‘s placement and continued detention

in SHU after his attorney challenged Bistrian‘s

previous placement was retaliatory for exercising his

First Amendment rights.

 Appellants/defendants (10): (1-10) The 10 Prison

Management Defendants.

44