Escobarrivera v. Whitaker

Case: 21-30147 Document: 00516563029 Page: 1 Date Filed: 12/01/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

December 1, 2022

No. 21-30147 Lyle W. Cayce

Clerk

Renil Escobarrivera,

Plaintiff—Appellant,

versus

Antonio Whitaker, Warden, Individual Capacity for Damages, Official

Capacity for Injunctive Relief; Tim Hooper, Warden, Louisiana

State Penitentiary; Joseph LaMartinaire; Tim Delaney;

James LeBlanc, Warden, Individual Capacity for Damages, Official

Capacity for Injunctive Relief,

Defendants—Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-498

Before Davis, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

Proceeding pro se, Plaintiff-Appellant Renil Escobarrivera appeals the

dismissal of his suit against Defendants-Appellees James LeBlanc, the

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

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No. 21-30147

secretary of the Louisiana Department of Corrections, warden Darrel

Vannoy, 1 and assistant wardens Joseph LaMartinaire, Tim Delaney, and

Antonio Whitaker. For the following reasons, we AFFIRM in part and

VACATE and REMAND in part.

I. Background

Escobarrivera, who is confined at the Louisiana State Penitentiary in

Angola, Louisiana, has been in closed custody restriction (“CCR”) for four

and a half years. Escobarrivera was initially placed in CCR in December 2017

after prison officials received an anonymous letter accusing him of planning

to escape.

CCR at Angola is the effective equivalent of solitary confinement.

According to Escobarrivera, inmates in CCR are confined to a one-person

cell for twenty-three hours per day. 2 Unless otherwise restricted, inmates

also receive one hour of yard time three days per week and two contact visits

per month. Inmates in CCR are unable to attend religious services and have

no access to email or educational programs.

As relevant to this appeal, Escobarrivera’s initial complaint advanced

three claims against Defendants. First, Escobarrivera asserted that his

placement and continued confinement in CCR violates his Fourteenth

Amendment due process rights. Second, Escobarrivera asserted that

Defendant Whitaker retaliated against him by ordering his transfer to a

different CCR unit after he complained about his continued confinement.

Third, Escobarrivera alleged an equal protection violation premised on the

1

Warden Darrel Vannoy has been replaced by Warden Tim Hooper.

2

Defendants dispute this fact and instead assert that inmates in CCR receive two

hours per day out of their cells. Because the distinction is immaterial to our analysis, we do

not address this issue.

2

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allegation that he has spent more time in CCR than inmates with more

egregious rule violations and that release from solitary confinement is based

solely on Defendants’ personal feelings towards the inmates. Escobarrivera

sought damages against Defendants in their individual capacities pursuant to

42 U.S.C. § 1983 as well as injunctive relief against Defendants in their

official capacities.

After the district court dismissed several of Escobarrivera’s claims for

failure to state a claim, the parties filed opposing summary judgment motions

regarding Escobarrivera’s remaining causes of action. Adopting the

magistrate judge’s recommendation in full, the district court concluded that

Defendants were entitled to qualified immunity on Escobarrivera’s due

process claim and accordingly granted their motion for summary judgment.

The district court also dismissed Escobarrivera’s retaliation and equal

protection claims sua sponte for failure to state a claim pursuant to 28 U.S.C.

§§ 1915(e) and 1915A. Notably, the district court did not address

Escobarrivera’s claim for injunctive relief against Defendants in their official

capacities but nonetheless entered a final judgment. This appeal timely

followed.

II. Discussion

The district court had jurisdiction under 28 U.S.C. § 1331, and we

have jurisdiction under 28 U.S.C. § 1291. We discuss the district court’s

dismissal of Escobarrivera’s retaliation and equal protection claims, the

district court’s qualified immunity determination and grant of summary

judgment, and Escobarrivera’s claim for injunctive relief, in turn, below. 3

3

At the outset, we note that Escobarrivera has abandoned many of his claims on

appeal. Pro se briefs are afforded liberal construction, see Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam), but pro se litigants are not “exempt . . . from compliance with

relevant rules of procedural and substantive law,” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.

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A. 28 U.S.C. §§ 1915(e) and 1915A Dismissals

The district court dismissed Escobarrivera’s retaliation and equal

protection claims under 28 U.S.C. §§ 1915(e) and 1915A. Where, as here, a

prisoner is proceeding in forma pauperis, §§ 1915(e) and 1915A require a

court to dismiss an action or claim against a governmental entity or officer or

employee of a governmental entity that is frivolous or malicious or fails to

state a claim upon which relief may be granted. To determine whether a

complaint fails to state a claim in this context, courts apply the same standard

used for dismissal under Rule 12(b)(6). Legate v. Livingston, 822 F.3d 207,

209–10 (5th Cir. 2016). Accordingly, the “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). We review a district court’s dismissal

under §§ 1915(e) and 1915A for failure to state a claim de novo. Legate, 822

F.3d at 209.

Escobarrivera’s retaliation claim against Defendant Whitaker is

premised on the allegation that Whitaker transferred him to a different CCR

unit after Escobarrivera complained about his continued confinement.

Escobarrivera, however, failed to allege any facts demonstrating that the

transfer to a different CCR unit was more than a de minimis adverse act. See

Morris v. Powell, 449 F.3d 682, 684–87 (5th Cir. 2006). For example,

Escobarrivera failed to plead that the unit to which he was transferred was

more dangerous or restrictive than his prior unit. Accordingly, without any

Nov. 1981) (per curiam). Because Escobarrivera does not sufficiently challenge the district

court’s holdings regarding his claims based on supervisory liability, his initial disciplinary

hearing, or the Eighth Amendment, we deem those claims abandoned and accordingly do

not address them.

4

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facts supporting actual retaliation, the district court properly dismissed this

claim.

Escobarrivera also advanced an equal protection claim, asserting that

he has spent more time in CCR than other inmates and that release from

solitary confinement is based solely on Defendants’ favoritism (or lack

thereof) towards those inmates. Because Escobarrivera failed to allege

membership in a protected class, he must establish that he, as a “class of

one,” was “intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in treatment.” Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Given that

prison officials are afforded wide deference in determining a prisoner’s

custodial status in order to maintain security, we conclude that Escobarrivera

failed to plead sufficient facts to carry this heavy burden. 4 See Hernandez v.

Velasquez, 522 F.3d 556, 562 (5th Cir. 2008) (per curiam). Escobarrivera’s

equal protection claim was accordingly properly dismissed.

B. Summary Judgment

The district court concluded that Defendants were entitled to

qualified immunity on Escobarrivera’s claim that his continued confinement

violates his Fourteenth Amendment due process rights, and it accordingly

granted summary judgment in favor of Defendants. Specifically, the district

court held that Escobarrivera’s alleged liberty interest was “not clearly

established based on the specific facts” alleged. We examine that analysis.

4

The magistrate judge noted that several district courts have held “class of one”

claims are largely, if not entirely, unavailable in the context of prison disciplinary

proceedings. Because we conclude that Escobarrivera failed to carry the heavy burden of

negating any rational basis for his CCR confinement, we do not address this observation.

5

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We review “a district court’s grant of summary judgment de novo,

applying the same standards as the trial court.” Griffin v. UPS, Inc., 661 F.3d

216, 221 (5th Cir. 2011). Summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

“A good-faith assertion of qualified immunity,” however, “alters the

usual summary judgment burden of proof.” Trent v. Wade, 776 F.3d 368, 376

(5th Cir. 2015) (internal quotation marks and citation omitted). In those

situations, once the defendants raise the defense, the burden shifts to the

plaintiff to raise a material fact issue that would show the absence of qualified

immunity. Id.

Our qualified immunity analysis is a two-part process: (1) we ask

whether the alleged conduct has violated a federal right, Cole v. Carson, 935

F.3d 444, 451 (5th Cir. 2019) (en banc); and (2) we consider “whether the

right in question was clearly established at the time of the alleged violation”

such that the official was on notice of the unlawfulness of the conduct, id.

(internal quotation marks and citation omitted). We need not decide the two

questions in order—we may decide the issue solely on the basis that a right

was not clearly established. Pearson v. Callahan, 555 U.S. 223, 236–37, 243

(2009). With this framework in mind, we turn to Escobarrivera’s due

process claim.

“[T]he Due Process Clause does not protect every change in the

conditions of confinement which has a substantial adverse effect upon a

prisoner.” Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). Therefore,

we must first consider whether Escobarrivera has been deprived of a liberty

or property interest and then examine whether the procedures related to that

deprivation were “constitutionally sufficient.” Meza v. Livingston, 607 F.3d

392, 399 (5th Cir. 2010) (quotation omitted). Escobarrivera argues that he

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has a clearly established liberty interest based on his continued confinement. 5

We disagree.

In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that

a prisoner’s liberty interests “will be generally limited to freedom from

restraint” that “imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Id. at 484. Accordingly, and

because we afford wide deference to prison officials, we have consistently

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

custodial classification.” Hernandez, 522 F.3d at 562.

Whether a prisoner has raised a valid liberty interest as a result of

continued solitary confinement turns on whether that custodial status

“demonstrates extraordinary circumstances or, in other words, an atypical

and significant hardship.” Wilkerson v. Goodwin, 774 F.3d 845, 853 (5th Cir.

2014) (internal quotation marks and citation omitted). To make that

determination, we evaluate “the nature of the more-restrictive confinement

and its duration in relation to prison norms.” Id. (quotation omitted). These

two factors are considered on a sliding scale. See id. at 855–56. “[T]ruly

onerous conditions for a brief period of time may not be atypical; less onerous

conditions for an extended period of time may be.” Bailey v. Fisher, 647 F.

App’x 472, 476 (5th Cir. 2016) (per curiam).

5

Escobarrivera also claims a liberty interest based on his inability to seek a pardon

while in CCR and a property interest based on his inability to earn incentive pay while in

CCR. Neither assertion is availing. The speculative nature of an early release by pardon

does not involve a protected liberty interest, cf. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir.

2000) (holding that because consideration for parole in Texas is entirely speculative, it

cannot support a constitutional claim), and “[p]risoners have no constitutional right to be

paid for work performed in prison,” Rochon v. La. State Penitentiary Inmate Acct., 880 F.2d

845, 846 (5th Cir. 1989).

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We begin with the nature of confinement. In Wilkinson v. Austin, 545

U.S. 209 (2005), the Supreme Court articulated conditions of confinement

sufficiently severe to create a clearly established due process violation. Id. at

214–15. The Wilkinson Court evaluated an inmate’s confinement at the Ohio

Supermax facility, noting that his segregation denied him of almost all human

contact. Id. at 214. His cell door was made of solid metal, preventing him

from conversing with others; his cell light could be dimmed, but was on for

twenty-four hours a day; and he could exercise one hour per day, but only

while isolated and in a small indoor room. Id. Placement in the facility was

indefinite and disqualified inmates from otherwise eligible parole

considerations. Id. at 214–15.

In Bailey, we applied Wilkinson and concluded that the inmate’s

confinement was similarly severe. 647 F. App’x at 474–75. The inmate in

Bailey was on lockdown between twenty-three and twenty-four hours a day

in a one-person cell with a solid steel door. Id. When the inmate was

permitted to exercise, he remained isolated from other prisoners; visitation

and telephone use were either non-existent or rare; and the inmate had no

access to any privileges or programming, such as religious gatherings,

educational programs, entertainment, canteen, or packages. Id. at 475.

Moreover, any time the inmate left his cell he was handcuffed through a

mailbox-like structure and strip searched. Id.

We conclude Escobarrivera has failed to create a fact issue that his

confinement as of the date of final judgment in the district court rises to the

level of severity articulated in Wilkinson and Bailey. We recognize that

Escobarrivera is confined for twenty-three hours (or at least twenty-two

hours) a day in a cell by himself, eats his meals alone, is prevented from

attending church services, and his confinement is allegedly “indefinite.” But

important to the Court in Wilkinson was the “depriv[ation] of almost any

environmental or sensory stimuli and of almost all human contact.” 545 U.S.

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at 214. Escobarrivera’s confinement does not amount to such a deprivation.

Escobarrivera’s cell has bars as opposed to a steel door, allowing him the

opportunity to communicate with other inmates. He can roam the hall and

interact with others during his hour of release; he receives three additional

one-hour sessions a week outside; and he has access to visitation twice a

month. Accordingly, taking his facts as alleged as true, we cannot conclude

that Escobarrivera’s conditions of confinement alone are “atypical and

significant.” See Sandin, 515 U.S. at 484.

We now turn to the duration of Escobarrivera’s confinement.

Confinement in less severe conditions may still give rise to a protected liberty

interest if the confinement’s duration is excessive. Wilkerson, 774 F.3d at

855–56. In Wilkerson, for example, we considered a thirty-nine-year

confinement and concluded that such an “extraordinary duration” diluted

the materiality of the less severe confinement conditions. Id. The duration

of Escobarrivera’s confinement—which was three years and three months

when the district court entered summary judgment and is now four years and

six months—is significantly shorter than the duration at issue in Wilkerson.

Therefore, Escobarrivera’s length of confinement does not, at least at this

point, tip the scale towards severity.

Moreover, we have noted that a period of eight years in solitary

confinement with no prospect of immediate release in the near future is

sufficient to give rise to a liberty interest, but a period of two and one-half

years in confinement is not. Id. at 855 (citing Shoats v. Horn, 213 F.3d 140,

144 (3d Cir. 2000)). Escobarrivera’s confinement duration is closer to the

two-and-a-half-year mark that we have deemed insufficient to establish a

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liberty interest than it is to the eight-year mark we have deemed sufficient.

Therefore, Escobarrivera’s duration of confinement is also not atypical. 6

In sum, considering the conditions of Escobarrivera’s confinement

coupled with its duration, we conclude that Escobarrivera has not articulated

a clearly established due process liberty interest at this point. Because

Escobarrivera’s due process rights in these circumstances were not “so well

defined” that a “reasonable officer” would understand his conduct to be

unlawful, see Cole, 935 F.3d at 451, we affirm the district court’s grant of

summary judgment in favor of Defendants as to the claims asserted against

them in their individual capacities as of the date of the final judgment in the

district court. That said, this summary judgment affirmance does not

preclude what Escobarrivera may be able to assert as time continues.

C. Injunctive Relief

Escobarrivera’s complaint asserted claims against Defendants for

damages in their individual capacities and for injunctive relief in their official

capacities. As to the injunctive relief, Escobarrivera sought release from

solitary confinement and placement in the general population.

In their motion to dismiss, Defendants asserted that Escobarrivera’s

claims against them in their official capacities were barred by sovereign

immunity. In its report and recommendation on the motion to dismiss, the

magistrate judge did not address Defendants’ sovereign immunity argument.

The district court subsequently granted Defendants’ summary judgment

motion on the basis of qualified immunity and dismissed Escobarrivera’s

entire complaint with prejudice.

6

In Bailey, we indicated that a period of five years in solitary confinement might be

enough to implicate a protected liberty interest. 647 F. App’x at 477. Because he has not

yet reached that number, we need not address that case further at this point.

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Qualified immunity, however, does not bear on Escobarrivera’s

entitlement to injunctive relief. “Absolute and qualified immunity protect

only individuals from claims for damages; they do not bar official-capacity

claims or claims for injunctive relief.” Singleton v. Cannizzaro, 956 F.3d 773,

778 n.3 (5th Cir. 2020). Neither the magistrate judge nor the district court

independently addressed Escobarrivera’s official capacity claims before

dismissing the complaint. 7

The district court erred by failing to consider Escobarrivera’s official

capacity claims against Defendants. At the pleading stage, Escobarrivera

asserted sufficient factual allegations supporting an official capacity due

process claim. He alleged that he is denied meaningful review of his custodial

status because the hearings held regarding his CCR classification are

essentially shams. Specifically, Escobarrivera asserted that Defendants

contribute to the denial of meaningful review and due process by, inter alia,

basing CCR release decisions “solely on their personal like or dislike of a

prisoner.” Per Escobarrivera, Defendant LeBlanc similarly contributes to

the denial of review by failing to establish “a set criteria for CCR release,”

which creates a “biased and unjust” release system. On those facts,

Escobarrivera has established that his denial of procedural due process is

fairly traceable to Defendants and his requested relief—ordering Defendants

7

As noted above, a party must “press and not merely intimate” its claims to avoid

waiver, F.D.I.C. v. Mijalis, 15 F.3d 1314, 1326–27 (5th Cir. 1994), but “we construe briefs

of pro se litigants liberally,” applying “less stringent standards,” Alexander v. Verizon

Wireless Servs., L.L.C., 875 F.3d 243, 248 n.10 (5th Cir. 2017). In his brief on appeal,

Escobarrivera “asks this court to order his release into general population.” He also asserts

that he will never “have a real review” of his confinement “unless a court makes Louisiana

start conducting real board hearings.” Affording Escobarrivera the benefit of liberal

construction, we conclude that Escobarrivera’s claim for injunctive relief is adequately

preserved on appeal.

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to afford him the process he is due to determine release from CCR—would

redress that injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

Moreover, Escobarrivera’s claims likely clear the state sovereign

immunity jurisdictional bar. State sovereign immunity precludes “private

suits against nonconsenting states in federal court,” see City of Austin v.

Paxton, 943 F.3d 993, 997 (5th Cir. 2019), and where a suit is effectively

against a state, state officials enjoy the same sovereign immunity, Tex.

Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020), cert. denied, 141

S. Ct. 1124 (2021). Ex parte Young, 209 U.S. 123 (1908), however, allows

suits for prospective injunctive relief or declaratory relief against a state

official acting in violation of federal law if the state official has a sufficient

connection to enforcement of the allegedly unconstitutional law. Id. at 157.

Because there is significant overlap between the Article III standing and the

Ex parte Young inquiries, the standing analysis can inform the state sovereign

immunity analysis. See City of Austin, 943 F.3d at 1002.

Here, each of the named Defendants has the authority to compel or

constrain Escobarrivera’s conditions of confinement by maintaining his

placement in CCR. See Tex. Democratic Party v. Hughs, 997 F.3d 288, 290–

91 (5th Cir. 2021). “[G]enerally all institutional litigation involving state

prisons, such as this case, is brought under the Ex parte Young exception.”

Hope v. Harris, 861 F. App’x 571, 578 (5th Cir. 2021) (per curiam) (internal

quotation marks and citation omitted), petition for cert. filed, No. 21-1065

(U.S. Jan. 28, 2022). Accordingly, though Escobarrivera cannot seek

monetary damages from Defendants in their official capacities, state

sovereign immunity does not bar Escobarrivera’s official capacity claims for

injunctive relief. See Abbott, 978 F.3d at 179.

That said, we are “a court of review, not of first view.” See Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005). We accordingly vacate the district

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court’s order dismissing Escobarrivera’s injunctive relief claim against

Defendants in their official capacities and remand to the district court to

consider the claim in the first instance.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s dismissal

of Escobarrivera’s equal protection and retaliation claims and the district

court’s grant of summary judgment in favor of Defendants as to

Escobarrivera’s individual capacity claims. We VACATE the district

court’s grant of summary judgment in favor of Defendants as to

Escobarrivera’s official capacity injunctive relief claim and REMAND for

further proceedings consistent with this opinion. 8 We ORDER the district

court to grant Escobarrivera’s request for appointment of counsel.

8While the partial concurrence and partial dissent posits that we “take[]

[Wilkerson] to use duration of confinement alone to determine whether constitutional due

process protections must be afforded,” as is discussed above, we only reach the question

of the duration of Escobarrivera’s confinement after holistically considering the nature and

severity of that confinement. Partial Concurrence and Partial Dissent at 3, 5. In addition,

as we discuss in footnote six, the five year period of solitary confinement mentioned in

Bailey has not yet been matched in this case. Therefore, based upon both the duration and

nature of Escobarrivera’s confinement, we conclude that Escobarrivera did not create a fact

issue as to his confinement as of the date of the district court’s final judgment. However,

given the passage of time in this case, the district court can and should consider the current

circumstances of Escobarrivera’s confinement, including the duration of his confinement,

in its further proceedings as to the injunctive relief claim. In addition, in such proceedings,

the district court should reconsider the injunctive relief claim without respect to qualified

immunity considerations. Finally, the district court should allow appointed counsel for

Escobarrivera an opportunity to file an amended complaint on the injunctive relief claim

that accounts for all conditions relevant to his incarceration.

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Jennifer Walker Elrod, Circuit Judge, concurring 1 in part and

dissenting in part:

Mr. Escobarrivera has been in closed custody restriction, better

known as solitary confinement, since December of 2017. The parties quibble

over whether he is permitted to leave his cell for two or only one hour each

day. Regardless, he spends most of his time isolated in an eight-by-eight-foot

room. He is permitted one hour of outdoor exercise in a slightly larger “dog

cage,” but is limited to three such sessions per week. He is disqualified from

participating in religious and educational programming. While he is

technically permitted two contact visits each month, he is often unable to

secure the necessary approvals—he tells us that he has not had a single visitor

in over a year. He has not been given any indication of when, if ever, he will

be transferred back to the general population.

None of this factored into the district court’s conclusion that Mr.

Escobarrivera lacks a sufficient liberty interest in avoiding closed custody

restriction to invoke the constitutional floor of procedural due process

protections—or, at least, that any liberty interest he might have is not well-

enough established to put state officials on notice that those protections have

been triggered. Instead, brushing aside other considerations, the district

court held that Mr. Escobarrivera’s stint in solitary confinement has simply

been too short to raise constitutional concern. At the time, Mr. Escobarrivera

had been subject to restrictive conditions for “just over three years,” and

there was no authority on hand in which a prisoner had successfully claimed

a liberty interest after three years in solitary confinement. Escobarrivera v.

Vannoy, No. 3:19-CV-00498, 2021 WL 943106, at *1 (M.D. La. Mar. 12,

1

I agree with the majority opinion that the district court was correct to dismiss Mr.

Escobarrivera’s retaliation and equal protection claims. I also agree that the district court

erred by failing to consider Mr. Escobarrivera’s official capacity claims.

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2021). According to the district court, this “lack of clear guidance regarding

terms equivalent to Plaintiff’s term is dispositive, and entitle[d] Defendants

to qualified immunity.” Id.

There are two problems with this holding. First, prior decisions do

not articulate a bright-line test that shackles a prisoner’s liberty interest solely

to the duration of his confinement. Our precedents sensibly treat duration as

but one consideration among many. Second, the district court’s invocation

of qualified immunity, to borrow a phrase, “smacks of unqualified

impunity.” Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J.,

concurring in part). “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.’” Wilkerson v.

Goodwin, 774 F.3d 845, 857 (5th Cir. 2014) (quoting Kinney v. Weaver, 367

F.3d 337, 350 (5th Cir. 2004)). I would hold that they did so here.

Far from treating duration as dispositive, the Supreme Court has

looked to the nature of the conditions of confinement as the “touchstone” of

the liberty-interest analysis. Wilkinson v. Austin, 545 U.S. 209, 223 (2005).

Courts are to determine whether a prisoner’s conditions of confinement

impose an “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. (quoting Sandin v. Conner, 515 U.S.

472, 484 (1995)). Duration is certainly relevant to that assessment. And in

declining to recognize a liberty interest in an early case, the Supreme Court

relied heavily on the fact that the plaintiff had only been subjected to a 30-day

period of disciplinary confinement, reasoning that “significant amounts of

‘lockdown time’” are an ordinary part of prison life and do “not work a major

disruption in [the inmate’s] environment.” Sandin, 515 U.S. at 486–87. But

duration is clearly not everything. Indeed, Wilkinson, the Supreme Court’s

most recent word on this issue, was a class action. The various plaintiffs

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involved had doubtless spent different—perhaps vastly different—amounts

of time under restrictive conditions.

Simply put, there is no minimum threshold duration requirement.

Following Wilkinson and drawing on the practice of our sister circuits, we

articulated a holistic approach in Wilkerson, 774 F.3d 845. We instructed that

courts should consider the combination of the “duration of the solitary

confinement, the severity of the restrictions, and their effectively indefinite

nature.” 774 F.3d at 855. The majority opinion misreads Wilkerson,

therefore, when it takes it to use duration of confinement alone to determine

whether constitutional due process protections must be afforded. In the

majority opinion’s view, Wilkerson held that two and a half years is simply

not enough to give rise to a liberty interest, but eight years is sufficient. It

apparently relies on Wilkerson’s overview of sister-circuit decisions and

Wilkerson’s observation that the “duration in segregated confinement that

courts have found does not give rise to a liberty interest range up to two and

one-half years.” Id. at 855. But this overview was used only to stress the

“extraordinary” nature of the thirty-nine years of confinement at issue in

that case. Id. (“We need not dwell on duration.” Id.). It does nothing to

disavow or amend the holistic approach that had just been put forward. 2 And

2

The opinions cited by Wilkerson do not treat duration as dispositive either. See

Hernandez v. Velasquez, 522 F.3d 556, 563 (5th Cir. 2008) (reviewing plaintiff’s conditions

and concluding that “[c]ases where segregated confinement is sufficiently ‘atypical’ to

implicate a due process liberty interest involve circumstances much harsher than those

presented here”); Jones v. Baker, 155 F.3d 810, 813 (6th Cir. 1998) (describing two and a

half years as atypical but nevertheless holding that the particular “conditions of plaintiff’s

confinement” were justified and did “not rise to an ‘atypical and significant’ hardship”);

Griffin v. Vaughn, 112 F.3d 703, 708 (3rd Cir. 1997) (reviewing plaintiff’s conditions and

concluding that “it is not extraordinary for inmates in a myriad of circumstances to find

themselves exposed to the conditions to which [plaintiff] was subjected”).

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it certainly does not categorically deem insufficient any claim to a liberty

interest that does not meet a minimum threshold period of confinement.

Our sister circuits continue to treat duration as simply one factor

among others. The Seventh Circuit, in fact, recently rejected a

“presumptive minimum” of six months as inconsistent with case law across

the federal courts, noting that “[a] considerably shorter period of segregation

may, depending on the conditions of confinement and on any additional

punishments, establish a violation.” Kervin v. Barnes, 787 F.3d 833, 836–37

(7th Cir. 2015) (citing examples from the Second Circuit (77 days), Third

Circuit (90 days), and Tenth Circuit (75 days)).

Analyzed under the proper test articulated in Wilkinson and

Wilkerson, and employed by our sister circuits, Mr. Escobarrivera’s

conditions plainly implicate a clearly established liberty interest. In Wilkerson

we zeroed-in on the combination of the plaintiff’s “23-hour-a-day in-cell

confinement, limited physical exercise, limited human contact, and

effectively indefinite placement” to determine that a clearly established

liberty interest was implicated. 774 F.3d at 858. It is undisputed that all of

these factors are present here.

The district court’s contrary conclusion follows from its error in

treating the “lack of clear guidance regarding terms equivalent to Plaintiff’s

term” as the beginning and the end of the qualified immunity analysis.

Escobarrivera, 2021 WL 843106, at *1. As we held in Wilkerson, a liberty

interest can be clearly established despite “some distinctions between the

conditions” that have been held to implicate a liberty interest in previous

cases. 774 F.3d at 855. Thus, the district court was obliged to fully consider

all of Mr. Escobarrivera’s conditions of confinement to determine whether

there were “material and substantial similarities” with conditions that have

previously been found to implicate a liberty interest. Id. A difference in

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duration alone does not preclude a finding of clearly established law. See id.

at 858 (concluding that plaintiff’s conditions of confinement implicate a

clearly established liberty interest and then noting that this conclusion is

“cemented by the unprecedented duration of [the prisoner’s] incarceration”

(emphasis added)).

Moreover, even assuming arguendo that claims like Mr.

Escobarrivera’s cannot be brought until a prisoner has spent a minimum

period in solitary confinement, Mr. Escobarrivera has satisfied that

prerequisite. As noted, the majority opinion identifies eight years with no

prospect of immediate release as “sufficient,” but two and a half years as

“not.” Supra p. 9. Mr. Escobarrivera is now approaching five years in

solitary confinement with no indication of when or how he may ever be

released. I would hold that five years is enough, as foreshadowed by our

decision in Bailey v. Fisher, 647 F. App’x 472 (5th Cir. 2016). The plaintiff in

Bailey likewise sought judicial review of his placement in solitary

confinement. Id. at 473. But it was not clear from the record how long he

had been in isolation, prompting the panel to remand to the district court to

determine whether the plaintiff was still being held in solitary confinement.

Id. at 477. In doing so, the panel noted that if the plaintiff was still in solitary

confinement, “he has been isolated for over five years.” Id. If five years of

confinement were insufficient to trigger constitutional due process

protections, there would be no need for a remand.

Simply put, five years in solitary confinement with no path forward to

release is sufficient to trigger constitutional due process protections.

I respectfully dissent in part and would remand this claim for further

consideration in the district court.

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