Timothy Finley v. Erica Huss

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0118p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

TIMOTHY FINLEY,

│

Plaintiff-Appellant, │

> No. 23-1083

│

v. │

│

ERICA HUSS, Deputy Warden, Marquette Branch │

Prison; SARAH SCHROEDER, Acting Deputy Warden, │

Marquette Branch Prison, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Western District of Michigan at Marquette.

No. 2:18-cv-00100—Robert J. Jonker, District Judge.

Argued: March 20, 2024

Decided and Filed: May 22, 2024

Before: GILMAN, McKEAGUE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Christine A. Monta, RODERICK & SOLANGE MACARTHUR JUSTICE

CENTER, Washington, D.C., for Appellant. Joshua S. Smith, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Christine A. Monta,

Daniel M. Greenfield, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER,

Washington, D.C., Aaron Littman, UCLA SCHOOL OF LAW, Los Angeles, California, for

Appellant. Joshua S. Smith, Keith G. Clark, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellees.

McKEAGUE, J., delivered the opinion of the court in which GILMAN and THAPAR,

JJ., concurred in different parts. GILMAN, J. (pp. 42–46), delivered a separate opinion

concurring in part and dissenting in part. THAPAR, J. (pp. 47–52) also delivered a separate

opinion concurring in part and dissenting in part.

No. 23-1083 Finley v. Huss, et al. Page 2

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Timothy Finley is serving a Michigan prison sentence

while suffering from severe psychiatric disorders. Over several weeks in 2016, Finley’s mental

health hit a breaking point: he repeatedly cut himself with—and swallowed—multiple

razorblades. At the same time, his persistent misconduct made him difficult to manage.

Eventually, prison officials placed Finley in a heavily restrictive cell in administrative

segregation and kept him there for approximately three months. Finley now challenges that

decision. He brought this action under 42 U.S.C. § 1983, alleging violations of the Eighth

Amendment and his right to procedural due process. He also included disability-discrimination

claims under the Americans with Disabilities Act and the Rehabilitation Act.

Finley targets two prison decisionmakers. Erica Huss, the deputy warden, assigned

Finley to administrative segregation. Then Sarah Schroeder, who temporarily served as deputy

warden during Huss’s leave of absence, kept Finley in administrative segregation for months.

Both officials knew about Finley’s serious mental-health problems and repeated instances of

self-harm. In addition, Huss made her decision despite a warning from Finley’s mental-

healthcare provider that solitary confinement was likely to worsen his mental health. And

Schroeder failed to carry out the mental-healthcare provider’s request that Finley be promptly

transferred to a treatment program. In the process, both deputy wardens likely violated

Michigan’s correctional policies about mentally ill inmates in solitary confinement.

The district court granted summary judgment to Huss and Schroeder on all claims. We

agree that summary judgment was warranted for Finley’s procedural due process and statutory

discrimination claims. But summary judgment was improper for Finley’s Eighth Amendment

claim because he presented evidence sufficient to find that the deputy wardens violated his

clearly established rights. We thus AFFIRM in part, REVERSE in part, and REMAND for

further proceedings.

No. 23-1083 Finley v. Huss, et al. Page 3

I. BACKGROUND

Timothy Finley’s appeal revolves around events that took place between August 2016

and January 2017 during his incarceration at a Michigan Department of Corrections (MDOC)

facility. Finley’s claims hinge on two key decisions made by a pair of prison officials: Erica

Huss’s decision to place him in administrative segregation, and Sarah Schroeder’s decision to

keep him there for months.

A. Prison Policies on Segregation and Mental Health

Before delving into the specifics of Finley’s case, we briefly overview MDOC’s policies

and programs on segregated housing and mentally ill inmates. Key here, segregation is a form of

solitary confinement used to physically separate inmates with special management needs from

the general population. It can be either administrative or punitive. Although “administrative

segregation” isn’t technically a form of punishment, it is often triggered by instances of serious

misconduct.

MDOC has specific rules designed to keep mentally ill inmates out of administrative

segregation. That aligns with the overwhelming medical consensus that solitary confinement,

though harmful to even mentally stable inmates, is particularly devastating for those with severe

psychiatric disorders. Accordingly, MDOC staffs its prisons with mental-health professionals

who monitor and treat inmates with mental illnesses. By rule, prison officials cannot place a

mentally ill inmate into administrative segregation without first consulting a mental-health

professional about whether that inmate’s mental-health needs can be met in segregation. See

Mich. Dep’t of Corr., Policy Directive 04.05.120 ¶ N. The rules also stress that mentally ill

inmates should not ordinarily be housed in segregation if their illnesses might prevent proper

adjustment to solitary confinement. See Mich. Dep’t of Corr., Policy Directive 04.06.182 ¶ D.

MDOC recognizes that some mentally ill inmates might be impossible to manage outside

of a segregation unit. In such cases, mental-health professionals must closely monitor the inmate

to ensure that his or her needs are met in segregation. See id. If a mental-health professional

decides that an inmate needs medical care instead of segregation, the rules prescribe various

steps depending on the specific medical recommendation. Id. ¶¶ H–L. When an inmate requires

No. 23-1083 Finley v. Huss, et al. Page 4

intensive inpatient mental health services, he or she must be released from segregation as soon as

possible. For other recommended treatment settings, prison officials get more flexibility—but if

they agree with the recommendation, they must release the inmate from segregation within three

business days. Id.

MDOC operates several treatment-oriented programs that it deems more appropriate than

segregation for those with serious mental illnesses. For severe cases, inpatient psychiatric

services and the Residential Treatment Program are available. Outpatient programs also exist.

Some, like the Secure Status Outpatient Treatment Program, are designed specifically for

inmates who cannot be safely integrated with others. And most relevant to Finley, the Interim

Care Program is an outpatient program created to remove mentally ill inmates from

administrative segregation and instead place them—for their own wellbeing—into general

population settings. Inmates participating in the Interim Care Program enjoy fewer restrictions

than their counterparts in administrative segregation. However, the record is unclear about the

specific differences.

B. Finley’s Mental Illness and Misconduct

Finley has a long history of mental illness. Among other things, doctors have diagnosed

him with bipolar and major depressive disorders. Finley’s MDOC medical records are replete

with various diagnoses, medical reports, and suicide-risk evaluations. He has attempted suicide

multiple times—twice while incarcerated. At the same time, Finley also has a long history of

misconduct in prison. Over the course of about twenty years in various MDOC facilities, he

accumulated a lengthy rap sheet of serious rule violations. That misbehavior, combined with his

serious mental illnesses, sometimes led prison officials to face difficult situations.

In May 2016, MDOC officials transferred Finley to Marquette Branch Prison—a high-

security facility in northern Michigan capable of confining particularly challenging inmates.

Mandi Salmi, a registered nurse, became Finley’s assigned mental-health professional. Finley

was initially placed in the Secure Status Outpatient Treatment Program, where he received

mental-health treatment. He left the program in June and joined the general population.

No. 23-1083 Finley v. Huss, et al. Page 5

Finley’s mental health reached a breaking point in late August 2016. He told prison staff

that he was experiencing thoughts of self-harm, and officials promptly placed him in a suicide-

observation cell. Finley somehow managed to sneak a razorblade into the cell. Despite his near-

constant supervision, Finley repeatedly used the razor to cut himself for two straight days. He

wrote on the cell’s walls with his own blood. Finley then swallowed the razor, and it became

lodged in his throat. Prison officials kept Finley in suicide observation for the next week,

interrupted by two separate hospital trips where doctors tried—but ultimately failed—to

surgically extract the razor. During this time and in the following weeks, Finley refused to take

some of his prescribed medications as directed.

On September 6, Finley (still in suicide observation) discussed mental-health treatment

options with a prison psychiatrist and the resident unit manager. Both officials recommended the

Residential Treatment Program, an intensive treatment setting. Finley then asked Salmi to refer

him to that program. When she refused, he asked her to refer him to the Interim Care Program

instead. He was not referred to either program. Salmi reasoned that the Residential Treatment

Program wasn’t yet clinically warranted, and that the Interim Care Program was unavailable to

inmates outside of administrative segregation.

Finley returned to the general population the next day. Then, on September 8, a

correctional officer found makeshift metal tools (used for television repair) in Finley’s cell.

Prison officials charged Finley with possessing a weapon and placed him in temporary

administrative segregation pending the outcome of a misconduct hearing. Segregation triggered

immediate self-harm. Within an hour or two, Finley started cutting himself with another

razorblade and wrote “death” on the wall with his blood. He told Salmi that he was considering

hanging himself. Salmi decided that Finley was at a moderate risk of suicide, documented that in

her suicide-evaluation report, and moved Finley back to a suicide-observation cell.

Finley stayed in suicide observation for the next nine days. Over that period, he

repeatedly cut himself, overdosed on medication, and swallowed more razors. He also

accumulated a pair of sexual-misconduct charges for masturbating in his cell. Hearing officers

found Finley guilty of both sexual-misconduct charges, as well as his earlier weapon-possession

No. 23-1083 Finley v. Huss, et al. Page 6

charge. The punishment imposed for all three violations was “loss of privileges,” meaning that

Finley lost access to entertainment, exercise facilities, visitors, and other amenities.

Erica Huss visited Finley in his suicide-observation cell on September 14. As deputy

warden, Huss chaired the prison’s Security Classification Committee—the panel tasked with

deciding whether difficult inmates should be classified to administrative segregation. Finley’s

recent weapon-possession violation had triggered a Committee meeting. But Huss assured

Finley that, because of his mental health, she wouldn’t place him in administrative segregation.

She acknowledged that Finley couldn’t stand segregation and decided to “give [him] another

chance.” Finley Dep., R.88-4 at PageID 697–98. A few days later, Finley left suicide

observation and returned to the general population.

On September 18—the day after Finley rejoined the general population—a prison guard

erroneously issued him a shaving razor. Finley refused to return the blade. Officials searched

for the razor and, when they failed to find it, placed Finley in a suicide-observation cell. Finley

then revealed the hidden razor, cut himself several times, and swallowed it. Again, the blade

lodged itself in Finley’s throat. Finley underwent another round of emergency surgery; doctors

successfully removed the newly ingested razor from Finley’s throat and at least one other razor

from his stomach, but they failed to extract the still-embedded first razor. Upon returning from

surgery, Finley spent the next few days in suicide observation.

Prison officials charged Finley with possessing dangerous contraband for failing to return

the razorblade when asked. They placed him in temporary administrative segregation on

September 22 to await resolution of that charge. Four days later, Finley attended his disciplinary

hearing and argued that, because of his mental illness, he shouldn’t be found guilty. He also

submitted a written statement elaborating on his mental illness and explaining that he couldn’t

control his behavior. For her part, Salmi completed a sanction-assessment form to cast light on

appropriate sanctions given Finley’s mental illness. She opined that Finley’s mental illness

hadn’t affected his alleged misbehavior. But she also warned that “[p]rolonged segregation

No. 23-1083 Finley v. Huss, et al. Page 7

placement is likely to deteriorate his mental health status.”1 Corr. Recs., R.88-6 at PageID 750.

The hearing officer found Finley guilty and, as punishment, imposed several additional weeks

without privileges.

C. Classification to Administrative Segregation

The Security Classification Committee met the next day, September 27, to determine

whether Finley should be housed in administrative segregation. Huss led the proceeding, and

two other prison officials—including Mark Hares, a mental-health professional—rounded out the

three-person Committee. Finley attended the meeting with a few hours’ notice. He argued that

he needed mental-health treatment, not discipline. He stressed the seriousness of his illnesses

and noted that he was thinking about hurting himself. The Committee reviewed Finley’s

disciplinary records, including the paperwork associated with his recent contraband-misconduct

hearing. And Huss personally reviewed Salmi’s sanction assessment, where Salmi had warned

that prolonged segregation would likely cause a deterioration in Finley’s mental health. Huss

was also familiar with Finley’s repeated self-mutilation over the prior four weeks.

Huss and the other Committee members nevertheless assigned Finley to administrative

segregation. Per MDOC policy, they filled out a “classification notice” form to formalize their

decision. The form cited Finley’s recent contraband violation and reasoned that Finley had

shown “an inability to be managed with general population privileges.” Corr. Recs., R-88-6 at

PageID 754. At her deposition, Huss explained that the Committee relied on Finley’s history of

misconduct and “his potential to honor the trust implicit in a lower level of security.” She added

that administrative segregation “restricted access to a lot of the things that [Finley] was using to

manipulate the process and harm himself.” Huss Dep., R.88-9 at PageID 817.

The Committee never discussed the possibility of placing Finley in mental-health

treatment programs instead of administrative segregation. Hares, the Committee’s mental-health

professional, made no medical recommendations. He later explained that he didn’t think he was

1This wasn’t the first time Salmi issued such a warning. She had included identical warnings in her

sanction assessments for Finley’s other misconduct hearings earlier that month. She later explained at her

deposition that the warning was a general statement that could ring true for anyone.

No. 23-1083 Finley v. Huss, et al. Page 8

allowed to recommend alternatives to administrative segregation during the meeting unless he

was aware of “acute” medical issues.2 Hares Dep., R.88-8 at PageID 803, 805–06. He also

clarified that he wasn’t Finley’s assigned clinician and didn’t know the details of Finley’s

diagnoses or razor-swallowing behavior. The Committee thus seemingly defied—at least for

summary-judgment purposes—MDOC rules that forbid classifying mentally ill inmates to

administrative segregation without first consulting a mental-health professional about “whether

the prisoner’s mental health needs or limitations can be met in administrative segregation.”

Mich. Dep’t of Corr., Policy Directive 04.05.120 ¶ N. Indeed, one section of the classification

notice form—required “to be completed” before assigning a mentally ill inmate to segregation—

included space for such a recommendation. Corr. Recs., R-88-6 at PageID 754. The Committee

left that section blank.

D. October Reclassification

Within hours of his classification, Finley (confined in a temporary segregation cell)

engaged in more self-harm. He overdosed on medication and swallowed half a razorblade.

After a trip to the emergency room, Finley returned to suicide observation. He then took even

more pills, cut himself, and swallowed another half razorblade. On September 30, medical

officials airlifted Finley to the University of Michigan medical center for emergency surgery.

Surgeons successfully removed all of the razors from Finley’s body, including the razor that had

been embedded in his throat for nearly a month.

On October 5, following his hospital discharge, Finley refused to approach his cell door

to be restrained for transportation. That triggered another misconduct write-up—this time for

disobeying a direct order. Finley told prison staff that he wanted to kill himself. After returning

to the prison facility later that day, he received injections of antipsychotic drugs. The new

medications proved helpful; they allowed Finley to better control his behavior and stop actively

harming himself. He stayed in suicide observation for the next 19 days.

2When pressed at his deposition, Hares clarified that swallowing a razorblade constituted an “acute”

problem. But despite repeated questioning, he never explained why Finley’s situation didn’t qualify as “acute.”

Instead, he suggested that he didn’t know at the time whether Finley had even swallowed a razor.

No. 23-1083 Finley v. Huss, et al. Page 9

During Finley’s 19-day stint in observation, the Security Classification Committee met

again to reconsider his placement in administrative segregation.3 This time, Sarah Schroeder led

the meeting—Schroeder would temporarily serve as deputy warden for the next few months

while Huss was on sick leave. Like Huss, Schroeder knew about Finley’s repeated self-

mutilation, razor-swallowing, and hospitalizations. Still, the Committee never discussed

alternatives to administrative segregation. The mental-health professional on the panel (not

Finley’s assigned clinician) declined to volunteer a medical recommendation, and Schroeder

never asked for one. Following their October meeting, the Committee members issued a notice

form “reclassifying” Finley to administrative segregation. They cited Finley’s recent misconduct

charge for disobeying a direct order (for which he’d been found guilty and punished with loss of

privileges) and his “inability to be managed with general population privileges.” Reclassification

Notice, R.88-10 at PageID 831. The Committee didn’t fill out the form’s section on mental-

health recommendations. And Finley wasn’t invited to attend the meeting.

E. Time in Solitary Confinement

On October 25, prison officials moved Finley to his new cell in administrative

segregation. Two days later, Salmi sent a concerned email to Schroeder and other officials.

Salmi’s email warned that Finley’s “treatment needs cannot be met while in segregation

placement.” Emails, R.88-7 at PageID 795. She formally requested Finley’s transfer to the

Interim Care Program and cited an MDOC rule compelling swift action. That rule required

Schroeder to release Finley from segregation within three business days if she concurred in

Salmi’s transfer recommendation. See Mich. Dep’t of Corr., Policy Directive 04.06.182 ¶ I. 4

After consulting residential-unit staff, Schroeder promptly agreed with the recommendation to

place Finley in the Interim Care Program. By October 31, Finley sat on the program’s waitlist.

But he remained in administrative segregation for the next two and a half months.

3Finley’s misconduct charge for disobeying an order triggered this Committee meeting. But according to

the deputy wardens, the meeting was scheduled in error. It was unnecessary, they claim, because Finley had already

been classified to administrative segregation on September 27.

4The deputy wardens claim that this rule didn’t apply to Finley’s transfer. In their view, only certain

mental-health treatment programs—not including the Interim Care Program—trigger the three-day requirement.

They might be right, but nothing in the rule’s text (or anything else in the record) supports such an interpretation. At

the very least, Finley has established a triable issue about the rule’s applicability.

No. 23-1083 Finley v. Huss, et al. Page 10

Those months were difficult for Finley. With limited exceptions, he spent 24 hours per

day alone in a windowless cell. Located on the prison’s bottom floor, that “base-level” cell

imposed unusually restrictive living conditions—even by administrative-segregation standards.

The cell allowed virtually no natural light to reach its occupant. And unlike other solitary cells at

the same facility, Finley’s base-level cell was effectively sound-proofed by a layer of security

glass. Nearby industrial fans further drowned out any outside noise. Thus, while inmates in

administrative segregation usually can communicate with passing guards and neighboring

inmates, Finley experienced near-total isolation. Other restrictions were more standard: He had

very limited access to books and legal materials. He had no access to group activities or

television. And he couldn’t use the phone except for legal calls or emergencies.

Compounding that isolation, Finley also endured the loss-of-privileges sanctions assessed

for his prior rule violations. Typically, inmates in administrative segregation get out-of-cell

recreation five times per week. By contrast, Finley received out-of-cell time just eight times in

the 79 days he spent in his base-level cell—though he turned down a few opportunities during

frigid winter days. Most weeks, Finley’s three allocated showers were the only times he left his

cell.

Salmi visited Finley at least once per week. During those meetings, which typically took

place in front of Finley’s cell, Salmi asked Finley about how he was doing. She also ensured that

Finley was taking his medications properly and wasn’t having suicidal thoughts or violating

prison rules. But those meetings were not therapeutic; therapy wasn’t generally available in

segregation. Salmi eventually formed the impression that Finley had control over his actions and

that much of his conduct was for secondary gain. She noticed his behavior improve while in

segregation, especially after he learned about his placement on the Interim Care Program

waitlist: he took his medications as directed, stopped harming himself, and seemed calm and

cooperative. Salmi later testified that prison officials had done the best they could to keep Finley

safe.

Schroeder and other prison officials conducted regular reviews of Finley’s placement in

administrative segregation. These reviews occurred weekly through late November 2016 and

monthly after that. Schroeder personally visited Finley’s cell several times as part of the review

No. 23-1083 Finley v. Huss, et al. Page 11

process, and Finley repeatedly asked her to be moved to the Interim Care Program. He also

asked to be moved to a less restrictive cell so that he could communicate with other people.

Each review culminated in a written form with input from several different officials: housing

staff provided written evaluations of Finley’s behavior, and representatives of the Security

Classification Committee (nearly always Schroeder and the resident unit manager) made a

recommendation about whether Finley should remain in segregation. Schroeder consistently

recommended continued segregation. She always cited Finley’s earlier contraband misconduct

for failing to return a razorblade and, in most of the forms, noted that Finley was waiting for a

spot in the Interim Care Program. Over the same time, Schroeder met weekly with mental-health

professionals and housing staff to discuss the Interim Care Program’s waitlist. They sometimes

adjusted the list’s order, making priority judgments based on the inmates’ good behavior and

mental-health status.

Finley left administrative segregation and entered the Interim Care Program on January

11, 2017. About fifteen weeks had passed since his September 27 classification; Finley spent

eleven of those weeks in the base-level cell.5 While in segregation, Finley experienced

insomnia, anxiety, and decompensation. He couldn’t sleep more than two or three hours per

night, and he rapidly lost weight. The stint in solitary confinement worsened his concentration

and aggravated his depression and tachycardia. A psychiatrist would later diagnose Finley with

sub-syndromal PTSD arising from the endeavor. That psychiatrist also opined, among other

things, that the stressful events worsened Finley’s bipolar disorder and long-term medical

prognosis.

F. Procedural History

While he was still confined in administrative segregation, Finley filed a pro se action in

federal district court. He alleged that Huss’s decision to place him in solitary confinement—and

Schroeder’s decision to keep him there—violated the Eighth Amendment and his Fourteenth

5In the deputy wardens’ view, the eleven-week figure is the proper measure of Finley’s tenure in

administrative segregation. But apart from about a week in the hospital, prison officials continually kept Finley in

various forms of highly restricted solitary conditions—whether labeled “administrative segregation” or “suicide

observation”—ever since his September 27 classification to administrative segregation. The most appropriate start-

date is thus a triable issue of fact.

No. 23-1083 Finley v. Huss, et al. Page 12

Amendment procedural due process rights. He also brought disability-discrimination claims

under the Americans with Disabilities Act and the Rehabilitation Act. The district court

dismissed the case for failure to state a claim, prompting an appeal. We reversed and allowed

Finley to proceed on his claims. Finley v. Huss, 723 F. App’x 294 (6th Cir. 2018).

On remand, Finley voluntarily dismissed his prior suit and filed a new action alleging the

same constitutional and statutory violations. To help support those claims, he retained two

experts: a psychiatrist specializing in correctional mental health and a penology expert

experienced in prison operations. But after discovery, the district court granted Huss and

Schroeder’s motion for summary judgment. It reasoned that both defendants were entitled to

qualified immunity against Finley’s constitutional claims, and it rejected Finley’s statutory

discrimination claims. Now, Finley appeals once again.

II. STANDARD OF REVIEW

We review the district court’s decision to grant summary judgment de novo.

Helphenstine v. Lewis County, 60 F.4th 305, 314 (6th Cir. 2023). Summary judgment is proper

whenever no genuine disputes of material fact exist and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). Because Finley was the non-moving party below, we

must draw any justifiable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986).

III. EIGHTH AMENDMENT

Finley first alleges that Huss and Schroeder violated his Eighth Amendment rights. He

argues that, by placing him in administrative segregation and keeping him there for months, the

deputy wardens were deliberately indifferent to the substantial risks that solitary confinement

posed to his mental health.

In their defense, Huss and Schroeder raised the doctrine of qualified immunity. Where

applicable, qualified immunity shields government officials from lawsuits for civil damages.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). It applies when an official’s conduct “does not

violate clearly established statutory or constitutional rights of which a reasonable person would

No. 23-1083 Finley v. Huss, et al. Page 13

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). That standard implicates two

questions: (1) Did the officials violate a right? (2) If so, was the right clearly established at the

time of the challenged conduct? Ortega v. U.S. Immigr. & Customs Enf’t, 737 F.3d 435, 438

(6th Cir. 2013). If the answer to either question is “no,” then the official is entitled to qualified

immunity. al-Kidd, 563 U.S. at 735. We can tackle these questions in any order. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). Finley clears both hurdles.

A. Eighth Amendment Violation

The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend.

VIII. The Supreme Court has held that a prison official’s deliberate indifference to conditions

that pose a substantial risk to an inmate’s health and safety violates the Eighth Amendment.

Farmer v. Brennan, 511 U.S. 825, 828 (1994). To determine whether an official was

deliberately indifferent to such conditions of confinement, we employ a two-pronged analysis

with both an objective and a subjective component. Wilson v. Williams, 961 F.3d 829, 839 (6th

Cir. 2020). The objective prong asks whether the inmate was incarcerated under conditions

posing a substantial risk of serious harm. Farmer, 511 U.S. at 834. The subjective prong then

asks whether officials knew of and disregarded that excessive risk to the inmate’s health or

safety. Id. at 837.6

1. Objective Prong

Finley satisfies the objective prong. Plenty of record evidence illuminates the substantial

risk that administrative segregation would dangerously aggravate Finley’s mental health.

6The district court aptly noted that Finley’s deliberate-indifference claim could proceed under two theories:

(1) indifference to unsafe conditions of confinement, and (2) indifference to a serious medical need. Finley’s

appellate briefing focuses on the conditions of confinement, arguing that Huss and Schroeder were deliberately

indifferent to a substantial risk to his future health and safety when they placed him in prolonged segregated

conditions. He subsumes his discussion of serious medical needs into that conditions-of-confinement analysis. We

follow Finley’s lead. In any event, the distinction doesn’t ultimately matter. Whether an inmate characterizes his

purportedly unlawful treatment “as inhuman conditions of confinement, failure to attend to his medical needs, or a

combination of both,” the same two-pronged deliberate-indifference inquiry applies. Helling v. McKinney, 509 U.S.

25, 32 (1993) (citation omitted). The same facts advance both overlapping theories here. Cf. Palakovic v. Wetzel,

854 F.3d 209, 225–29 (3d Cir. 2017) (explaining that inmate’s fragile mental health and history of self-harm—

combined with officials’ decision to place him in solitary confinement—sufficed to show deliberate indifference

under both theories).

No. 23-1083 Finley v. Huss, et al. Page 14

After all, no one disputes that Finley had a severe mental illness and committed self-harm in

segregated conditions. Consider Finley’s behavior in the weeks preceding the Huss-led

September 27 classification hearing: He cut himself repeatedly, wrote on the walls with his own

blood, and swallowed multiple razorblades—all while in suicide observation or other heavily

restricted solitary conditions. Indeed, temporary administrative segregation triggered a bout of

Finley’s self-harm on September 8. And temporary segregation triggered even more self-harm in

late September—shortly after the Huss-led hearing but before the Schroeder-led reclassification

meeting—when Finley overdosed on medication and swallowed yet another razor. Moreover,

Salmi wrote in multiple documents that prolonged segregation was likely to worsen Finley’s

mental health. At bottom, a reasonable jury could conclude that placing Finley in administrative

segregation posed a substantial risk to his safety.

2. Subjective Prong

Next comes the subjective prong. Under this inquiry, Finley must prove that the deputy

wardens (1) knew about facts from which they could infer that a substantial risk existed, (2) drew

that inference, and (3) disregarded the risk. See Buetenmiller v. Macomb Cnty. Jail, 53 F.4th

939, 944 (6th Cir. 2022). Finley has established triable issues of fact for all three requirements.

Reasonable jurors could find that Huss and Schroeder knew enough to infer that

segregated conditions posed a substantial risk to Finley. First, both officials confirmed in their

depositions that they knew about Finley’s self-harming behavior before classifying him to

administrative segregation. The record also contains emails from prison staff alerting Huss and

Schroeder to Finley’s various razor-swallowing incidents and hospital trips. And Finley told

Huss during the September 27 classification hearing that he was thinking about hurting himself.

Perhaps most importantly, Salmi’s warnings reinforce both officials’ subjective

awareness: Shortly before classifying Finley to administrative segregation, Huss personally

reviewed Salmi’s written warning that prolonged segregation would likely cause Finley’s mental

health to deteriorate.7 And two days after Schroeder reclassified Finley to administrative

7Of course, the jury would also consider Salmi’s after-the-fact statements about Finley’s improved

behavior in administrative segregation and her retrospective opinion that prison officials did the best they could. If

credited, such facts could justify a finding for Huss and Schroeder.

No. 23-1083 Finley v. Huss, et al. Page 15

segregation, Salmi sent her an email explaining that Finley’s mental-health needs couldn’t be

met while in administrative segregation and formally requesting his transfer to a mental-health

program. These facts could prompt the inference that administrative segregation posed a risk to

Finley.

Similarly, reasonable jurors could conclude that Huss and Schroeder drew that inference.

Let’s start with Huss. She visited Finley in his suicide-observation cell about two weeks before

classifying him to administrative segregation and, according to Finley’s deposition testimony,

acknowledged that he couldn’t stand segregation due to his mental health. Turning to Schroeder,

emails in the record show that she promptly agreed with Salmi’s recommendation to transfer

Finley to a mental-health program. Combined with the deputy wardens’ above-described

knowledge, this evidence creates a triable issue about whether they had inferred that

administrative segregation would risk seriously worsening Finley’s mental illness.8

That brings us to the trickiest question: whether Huss and Schroeder disregarded the risk.

Evidence in the record goes both ways.

On the one hand, Huss and Schroeder present evidence that they thought they had

responded to the risk. For example, one rationale that Huss cites for moving Finley to

administrative segregation was her belief that segregation might help prevent Finley from

accessing objects that he could use to hurt himself.9 Prison officials also provided Finley

8Resisting this conclusion, Huss and Schroeder note that mental-health professionals present at both

security classification meetings never raised any objections or concerns related to Finley’s placement in segregation.

However, that argument cannot justify summary judgment. As Finley correctly observes, evidence in the record

suggests that mental-health professionals were not allowed—or at least did not think they were allowed—to raise

such objections at classification meetings. The record further supports an inference that mental-health professionals

at the classification meetings lacked the requisite information—including knowledge of Finley’s diagnoses and

razor-swallowing behavior—to make such medical judgments. That substantially limits the probative value of their

silence.

9Relatedly, Judge Thapar suggests that the deputy wardens lacked viable alternatives to segregation. See

infra at 47–48 (Thapar, J, dissenting in part). First, he accurately observes that the deputy wardens couldn’t safely

house Finley with other inmates in the general population. He then posits that mental-health treatment programs

weren’t options, either. See id. We don’t think the record supports the latter conclusion. True, Salmi rejected

Finley’s initial request for placement in one particular treatment setting—the intensive Residential Treatment

Program. But that happened on September 6, several weeks before Finley’s assignment to administrative

segregation. During those weeks, Finley’s self-harm continued and seemingly escalated. Plus, other treatment

programs existed; Salmi herself later recommended the Interim Care Program. Triable issues remain on the

alternatives to segregation available to Huss and Schroeder.

No. 23-1083 Finley v. Huss, et al. Page 16

antipsychotic drugs to manage his mental illness. In fact, the drugs that Finley started taking in

early October proved somewhat successful; they enabled him to stop actively hurting himself.10

And Schroeder recommended Finley to a treatment program, placing him on the waitlist until an

opening in the program arose. If credited, such evidence might allow a jury to find that Huss and

Schroeder are not liable. See Farmer, 511 U.S. at 844.

On the other hand, Finley presents evidence that the deputy wardens disregarded the risk.

Neither Huss nor Schroeder considered alternatives to administrative segregation during the

classification meetings, and they left the mental-health portion of the hearing forms blank. In so

doing, they likely violated MDOC rules designed to protect mentally ill inmates from harm,

creating a suspicion of deliberate indifference. Harris v. City of Circleville, 583 F.3d 356, 369

(6th Cir. 2009) (emphasizing officials’ failure to comply with jail policy); see also Comstock v.

McCrary, 273 F.3d 693, 706–07, 709 (6th Cir. 2001) (noting that a prison official’s violations of

MDOC policies—including his failure to properly fill out required forms—helped demonstrate

his deliberate indifference). On the same note, Schroeder did not transfer Finley out of

administrative segregation within the three-day window that MDOC policy seemingly required.

Rather, she regularly reviewed Finley’s placement—visiting his base-level cell that provided

virtually no human interaction or natural light, and which he rarely left—and endorsed sustained

isolation for over two additional months. Schroeder also apparently rejected Finley’s request

that she mitigate the harshness of his living conditions, such as by moving him to a less isolating

cell in segregated housing.

In sum, this conflicting evidence creates work for a jury. The deputy wardens fail to

meet their summary-judgment burden. Although their evidence undercuts the notion that they

knew with certainty that placing Finley in administrative segregation would result in harm, that

is not the deliberate-indifference standard. See Farmer, 511 U.S. at 836 (noting that “knowing”

conduct is unnecessary to satisfy the deliberate-indifference mental state). Rather, Finley needs

10 Huss and Schroeder argue that this necessarily bars Finley’s deliberate-indifference claim. But even

though Finley stopped actively harming himself, his mental health still deteriorated in segregation—just as Salmi

had predicted. See Finley, 723 F. App’x at 298–99 (noting that when prison medical professionals warn that solitary

confinement will exacerbate a mental-health disorder, “claiming that medication makes it permissible is a little like

bandaging a person’s broken leg but then taking away his crutches”).

No. 23-1083 Finley v. Huss, et al. Page 17

proof only that Huss and Schroeder knew of a substantial risk that harm would result—or, in

Salmi’s words, “likely” to result—and that they recklessly exposed him to it anyway. Id. at 836–

37. Under that threshold, reasonable jurors could find for Finley.

B. Clearly Established Law

Proving an Eighth Amendment violation isn’t enough to defeat qualified immunity.

Finley must also show that the law “clearly established” the unconstitutionality of Huss and

Schroeder’s challenged conduct. Harlow, 457 U.S. at 818. Existing law must place an official’s

conduct “beyond debate” such that any reasonable official would understand that her conduct

was unlawful. al-Kidd, 563 U.S. at 741. This inquiry “protects ‘all but the plainly incompetent

or those who knowingly violate the law.’” District of Columbia v. Wesby, 583 U.S. 48, 63

(2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A question is beyond debate when

then-existing precedent prohibits the challenged conduct, al-Kidd, 563 U.S. at 741, or when the

conduct is so egregious that any reasonable official would realize that it violates the Constitution,

Taylor v. Riojas, 592 U.S. 7, 9 (2020).

Although it is a close call, Finley can defeat qualified immunity with existing precedent.

Existing precedent clearly establishes a violation when controlling authority—that is, a Supreme

Court decision, published Sixth Circuit decision, or here, a Western District of Michigan

decision—bars the official’s conduct. See Ortega, 737 F.3d at 439–40. It can also establish a

violation when an on-point and “robust consensus of cases of persuasive authority” places the

violation beyond debate. Id. Such authority cannot just suggest that the officials’ conduct was

unlawful. Wesby, 583 U.S. at 63. Rather, it must make apparent that the conduct was unlawful

under the circumstances. Id.

The critical threshold step is defining the right at issue. The Supreme Court has

repeatedly commanded inferior courts not to define rights at too high a level of generality. See,

e.g., White v. Pauly, 580 U.S. 73, 79 (2017); al-Kidd, 563 U.S. at 742. A right must be defined

with enough specificity to address “whether the official acted reasonably in the particular

circumstances that he or she faced.” Wesby, 583 U.S. at 63–64. Thus, general propositions of

law usually aren’t enough to clearly establish a right. White, 580 U.S. at 79–80. That said,

No. 23-1083 Finley v. Huss, et al. Page 18

Finley need not point to a case “on all fours” with the instant fact pattern. Vanderhoef v. Dixon,

938 F.3d 271, 278 (6th Cir. 2019) (quoting Hopper v. Plummer, 887 F.3d 744, 755 (6th Cir.

2018)). Cases must only be sufficiently analogous to ensure that a “reasonable official would

understand” that she is violating the right in question. Anderson, 483 U.S. at 640.

Against that backdrop, we frame the inquiry as follows: Did the law clearly establish in

2016 that an official violates the Eighth Amendment by subjecting an inmate with known

psychiatric disorders and a history of self-harm to conditions that, due to a medical

professional’s warning, the official knows poses a substantial risk of dangerously aggravating the

inmate’s psychiatric health? That articulation isn’t too general. See Rhodes v. Michigan, 10

F.4th 665, 680 (6th Cir. 2021). Indeed, this Court routinely uses far broader articulations of

clearly established principles in other deliberate-indifference cases. See, e.g., Bays v.

Montmorency County, 874 F.3d 264, 270 (6th Cir. 2017) (the “right to have a serious

psychological illness treated seriously”); Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir.

2006) (the “right to psychological treatment”); Comstock, 273 F.3d at 711 (the “right to medical

attention once the prisoner’s suicidal tendencies are known”); Williams v. Mehra, 186 F.3d 685,

691 (6th Cir. 1999) (en banc) (the inmate’s “right not to have his serious medical needs treated

with deliberate indifference”). At the same time, the articulation does not unreasonably narrow

the right by focusing on specific features of the confinement. See Rhodes, 10 F.4th at 680.

We adopted a similar approach in Linden v. Washtenaw County, 167 F. App’x 410 (6th

Cir. 2006), a case with somewhat analogous facts. There, jail officials placed a mentally ill

inmate on suicide watch and provided him psychiatric drugs. A psychiatrist eventually deemed

it safe to remove the inmate from suicide watch. Pursuant to jail policy, officials placed the

inmate in the medical unit for a brief transition period. Id. at 414, 423–24. But, in an attempt to

stop a reported fight, a classification officer transferred the inmate to an isolation cell. The

classification officer knew about the inmate’s mental illness and history of suicide attempts. He

“understood that placing [the inmate] in isolation aggravated” the inmate’s suicidal tendencies.

Indeed, a mental-health professional had warned the officer that the inmate “doesn’t do very well

when he’s isolated.” Id. at 423–25. The inmate committed suicide in the isolation cell. In

denying the classification officer qualified immunity, we rejected his argument that the defined

No. 23-1083 Finley v. Huss, et al. Page 19

right needed to include the “specific act of moving [the inmate] to an isolation cell.” Id. at 425.

The clearly established right was the inmate’s broader right to effective suicide-prevention

measures; focusing on the isolation cell itself wasn’t warranted. Id. The same is true here.

Finley recommends a different route. He argues that we should effectively skip the

“clearly established” inquiry altogether because he has already shown that Huss and Schroeder

subjectively knew about and disregarded risks to his psychiatric health. In other words, he

invites us to collapse qualified immunity’s two prongs into one whenever the plaintiff can

prove—as he must in any successful deliberate-indifference case—that the defendant

deliberately disregarded a known danger. After all, “qualified immunity does not protect ‘those

who knowingly violate the law.’” Reply Br. 17 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). Finley’s approach isn’t without support. Several of our sister circuits have endorsed it.

See, e.g., Delgado-Brunet v. Clark, 93 F.3d 339, 346 (7th Cir. 1996); Thorpe v. Clarke, 37 F.4th

926, 934 (4th Cir. 2022); Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001). Even

this Court has agreed with it, albeit in an unpublished opinion. McKee v. Turner, 124 F.3d 198

(6th Cir. 1997) (unpublished table decision) (“A finding of deliberate indifference necessarily

precludes a finding of qualified immunity.” (citation omitted)). Indeed, we are aware of very

few Sixth Circuit cases where we have held that a plaintiff satisfied the deliberate-indifference

standard but granted qualified immunity on “clearly established” grounds.

However, Finley’s argument goes too far. It does not automatically follow that someone

who knowingly disregards a serious risk also knowingly disregards the Constitution. Some risks,

after all, are not objectively serious enough to implicate constitutional protections. And

overarching legal standards—like Farmer v. Brennan’s rule against exposing inmates to “a

substantial risk of serious harm”—don’t provide much clarification. 511 U.S. at 834. An

official could thus knowingly expose an inmate to a serious risk without realizing that the risk

triggered the Eighth Amendment. See Est. of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049–50

(9th Cir. 2002). Such an official is grossly irresponsible but not necessarily a knowing

lawbreaker. Thus, the “clearly established” analysis retains some teeth in deliberate-indifference

cases. Beck v. Hamblen County, 969 F.3d 592, 600–04 (6th Cir. 2020). Indeed, we have used it

to grant qualified immunity in cases where reasonable officials might not realize the significance

No. 23-1083 Finley v. Huss, et al. Page 20

of the risks at stake. See Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 992–94 (6th

Cir. 2017) (granting qualified immunity to jail officials because the inmate’s medical condition

and deprivation fell “well short” of those in prior cases and “there was nothing to suggest” that

the inmate was even at risk of the heart attack that killed him); Perez v. Oakland County, 466

F.3d 416, 426–30 (6th Cir. 2006) (granting qualified immunity because caselaw did not clearly

establish that inmates enjoy a right to accurate suicide-risk assessments or effective suicide-

monitoring arrangements).

That said, deliberate indifference’s subjective-culpability requirement arguably plays a

role in choosing the appropriate level of generality for a given right. It justifies somewhat less

granular principles than, say, Fourth Amendment cases involving split-second decisions where

officials genuinely—but perhaps mistakenly—believe their actions to be appropriate. Relatively

broad yet deep-rooted rights, such as the right to psychiatric care, are enough to place already

culpable officials on notice that their actions were not only wrong but also unlawful. See Linden,

167 F. App’x at 424–25; see also, e.g., Bays, 874 F.3d at 270. In other words, the “clearly

established” analysis protects deliberately indifferent officials from liability for violating general

legal standards unexpectedly transposed to new contexts. To illustrate, take our recent decision

in Rhodes v. Michigan. 10 F.4th at 679–83. There, we found that prison officials were

deliberately indifferent to an inmate’s safety by subjecting her to dangerous work conditions at

her prison job. Id. at 773–74. We then confined our “clearly established” inquiry to whether the

law had clearly established that Farmer’s general conditions-of-confinement protections

extended to the prison workplace. Id. at 679–80. A “yes” answer sufficed to deny qualified

immunity. Id. at 683.

Having defined the right, we turn to the cases.

By 2016, Sixth Circuit caselaw had clearly established the principle that officials violate

the Constitution by failing to take basic steps to address mentally ill inmates’ known psychiatric

needs. Consider Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001), and Clark-Murphy v.

Foreback, 439 F.3d 280 (6th Cir. 2006).

No. 23-1083 Finley v. Huss, et al. Page 21

Comstock involved officials’ failure to protect a suicidal inmate. 273 F.3d at 699–700. A

prison psychologist evaluated the inmate, concluded that he was at risk of suicide, and placed

him on suicide watch. The next day, the psychologist visited the inmate and reevaluated him.

The inmate claimed that he wasn’t suicidal, and the psychologist took him at his word. Without

further investigation, the psychologist recommended the inmate’s transfer to his old cell in

administrative segregation. The inmate later killed himself in administrative segregation. Id.

Among other things, the psychologist had breached mandatory prison policies designed to

prevent suicide. Id. at 706–07. We reasoned that the psychologist was deliberately indifferent

by taking “grossly inadequate” steps to address the known risk that the inmate “would harm

himself when presented with the opportunity.” Id. at 711.

A few years later, we decided Clark-Murphy. There, an inmate suffered a psychotic

episode. 439 F.3d at 285. Recognizing that, prison officials promptly placed him in an

observation cell. For the next four days, various guards, medical personnel, and other officials

observed the inmate engaging in bizarre conduct—including “barking like a dog,” “pacing back

and forth naked,” and urinating on the floor—which led them to believe that he required

psychological or psychiatric intervention. Id. at 283–85. The water for his cell was turned off

for at least some of that time, and the inmate ultimately died of dehydration. Id. His estate

brought Eighth Amendment claims alleging both a denial of water and a denial of psychological

services. Id. at 285, 285–87. Regarding psychological services, we found triable factual issues

for several defendants. Most notably, the deputy warden could be deliberately indifferent

because a mental-health professional had emailed him a warning that the inmate was psychotic

and that his “current level of functioning requires intense interventions.” Id. at 287–88. In

addition, one of the other officials could be deliberately indifferent because he took no steps to

address the inmate’s psychiatric needs beyond filling out a healthcare referral form. Id. at 283,

288.

Comstock and Clark-Murphy both show that prison officials violate the Constitution by

failing to take appropriate action to protect inmates under their care who suffer from known

severe psychiatric disorders. Granted, these cases are hardly on all fours with Finley’s situation.

Among other things, Finley received more treatment—though the officials in Comstock and

No. 23-1083 Finley v. Huss, et al. Page 22

Clark-Murphy did take some steps such as performing medical evaluations and making referrals.

The cases also don’t address the specific harms of solitary confinement. And most significantly,

Comstock and Clark-Murphy involved failures to take affirmative steps to treat psychiatric

disorders; they don’t spell out the rule that it is also unconstitutional to take steps known to risk

worsening psychiatric disorders. But they nonetheless suffice to put Huss and Schroeder on

notice that their actions violated Finley’s rights.

The first reason is fairly intuitive. Any reasonable person would know that if it is

unconstitutional to fail to step in and address known risks, it is also unconstitutional to

affirmatively and knowingly worsen those risks. To illustrate, compare Finley’s case with Bays

v. Montmorency County, 874 F.3d 264 (6th Cir. 2017). We previously noted that “the facts in

Bays were not nearly [as] problematic” as the ones in Finley’s case. Finley, 723 F. App’x at 298.

In Bays, an inmate with a known history of self-harm and suicidal behavior was placed in the

general population. The jail nurse took some steps to provide mental-health care, including

screening him for suicidality, scheduling a medical appointment to meet with him, and even

trying to move up the scheduled meeting. Unfortunately, the inmate still committed suicide.

Bays, 874 F.3d at 267. The Court found triable issues on whether the nurse was deliberately

indifferent. It also denied her qualified immunity because the inmate’s “right to have a serious

psychological illness treated seriously” was “clearly established.” Id. at 270. To suggest that the

nurse in Bays was on notice that failing to help the inmate would violate the Constitution—but

the deputy wardens here weren’t expected to understand that knowingly worsening Finley’s

condition violated his rights—strikes us as inconsistent.

Indeed, it is hardly a novel proposition that the Eighth Amendment extends to affirmative

acts that endanger inmates. In fact, a robust consensus of persuasive authorities showed even in

2016 that officials commit cruel and unusual punishment by subjecting inmates to particularly

egregious forms of solitary confinement. See, e.g., Keenan v. Hall, 83 F.3d 1083, 1089–91 (9th

Cir. 1996); Walker v. Shansky, 28 F.3d 666, 672–73 (7th Cir. 1994); Gates v. Collier, 501 F.2d

1291, 1304 (5th Cir. 1974); LaReau v. MacDougall, 473 F.2d 974, 977–78 (2d Cir. 1972).

Granted, none of those cases reached the special risks of solitary confinement to those with

No. 23-1083 Finley v. Huss, et al. Page 23

mental illnesses.11 But the point is that reasonable officials shouldn’t be caught off guard that

Comstock and Clark-Murphy’s principles apply even in the context of placing mentally ill

inmates in dangerous forms of solitary confinement. Huss and Schroeder are not entitled to

qualified immunity against Finley’s Eighth Amendment claim.12

IV. PROCEDURAL DUE PROCESS

Finley next brings a procedural due process claim. He argues that the deputy wardens

deprived him of due process when they assigned him to administrative segregation and kept him

there for approximately three months. As with Finley’s Eighth Amendment claim, Huss and

Schroeder raised qualified immunity as a defense. But unlike the Eighth Amendment claim, we

need not reach the “clearly established” inquiry—the deputy wardens are entitled to qualified

immunity because Finley cannot show a due process violation at all.

The Fourteenth Amendment’s Due Process Clause constrains governmental decisions

that deprive individuals of certain protected interests. Mathews v. Eldridge, 424 U.S. 319, 332

(1976). A procedural due process claim involves two steps. The plaintiff must first demonstrate

the presence of a constitutionally protected “property” or “liberty” interest. Then, the plaintiff

must show that a state actor deprived him of that interest without affording him constitutionally

sufficient process. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 459–60 (1989). Here,

Finley’s claim proceeds on the theory that Huss and Schroeder unlawfully deprived him of a

protected liberty interest by subjecting him to administrative segregation without following the

requisite procedures.

11Finley cites recent decisions from our sister circuits holding that mentally ill inmates have a

constitutional right against placement in solitary confinement when officials know that such confinement is likely to

dangerously worsen the inmates’ mental health. Clark v. Coupe, 55 F.4th 167, 179–81 (3d Cir. 2022); Palakovic v.

Wetzel, 854 F.3d 209, 225–29 (3d Cir. 2017); see Porter v. Clarke, 923 F.3d 348, 355–64 (4th Cir. 2019) (holding

that long-term solitary confinement might violate the Eighth Amendment when it imposes a “‘substantial risk’ of

serious psychological and emotional harm”). But because those opinions were issued after 2016, they cannot clearly

establish the law for this case.

12Judge Thapar raises a concern that our decision could make prison officials’ difficult jobs even harder.

See infra at 51 (Thapar, J., dissenting in part). After all, a significant percentage of incarcerated people have mental

illnesses. See id. at 51 n.1. To be clear, nothing in this opinion says that mentally ill inmates have a per se right—

much less a clearly established right—to avoid placement in segregated housing. Several case-specific factors shape

our holding, especially Finley’s repeated self-harm and his mental-health professional’s warning that prolonged

segregation would likely worsen his condition.

No. 23-1083 Finley v. Huss, et al. Page 24

A. Protected Liberty Interest

The threshold issue is whether Finley had a protected liberty interest. Generally

speaking, inmates lack protected liberty interests in avoiding administrative segregation.

Rimmer-Bey v. Brown, 62 F.3d 789, 791 (6th Cir. 1995). However, administrative segregation

can still implicate a liberty interest when it “imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484

(1995); see Harden-Bey v. Rutter, 524 F.3d 789, 792–95 (6th Cir. 2008) (holding that inmate’s

three-year confinement in administrative segregation could constitute such “atypical and

significant hardship”). In approaching that inquiry, courts consider both the duration and nature

of the more-restrictive confinement. Harden-Bey, 524 F.3d at 793; see Wilkinson v. Austin, 545

U.S. 209, 223–24 (2005). In this case, Finley’s conditions met that standard.

To be sure, Finley’s three months in administrative segregation—without more—cannot

implicate a liberty interest. His tenure in segregated housing falls comfortably within the

duration that we’ve deemed part of the ordinary incidents of prison life. See Mackey v. Dyke,

111 F.3d 460, 461 (6th Cir. 1997) (holding that nearly four months’ delay in returning inmate

from solitary confinement didn’t implicate a liberty interest); McMann v. Gundy, 39 F. App’x

208, 210 (6th Cir. 2002) (five months in solitary); Powell v. Washington, 720 F. App’x 222, 226

(6th Cir. 2017) (six months). And the unusually restrictive conditions that Finley experienced in

his base-level cell, though certainly relevant, probably aren’t enough to change that outcome.

The Supreme Court described similarly isolating conditions in Wilkinson, a case where it

ultimately concluded that inmates enjoy protected liberty interests in avoiding classification to

certain ultra-restrictive facilities. See 545 U.S. at 223–24. But those isolating conditions didn’t

satisfy the requisite hardship until viewed in combination with other factors. Id.

That doesn’t end the issue. Rather, Finley urges us to consider one additional factor: his

severe psychiatric disorders. He argues that the months he spent in an unusually restrictive

solitary cell—combined with his mental illness—imposed an atypical and significant hardship on

him. Huss and Schroeder disagree. They don’t dispute that Finley’s mental illness increased his

vulnerability to the harms of solitary confinement. But, relying on our decision in Austin v.

Wilkinson, they argue that such individual vulnerabilities don’t matter. See 372 F.3d 346 (6th

No. 23-1083 Finley v. Huss, et al. Page 25

Cir. 2004), aff’d in relevant part, 545 U.S. 209 (2005). In their view, Austin precludes us from

considering disabilities that render inmates uniquely vulnerable to conditions that wouldn’t

otherwise implicate a liberty interest.

We disagree with the deputy wardens’ reading of Austin. In that case, we considered the

appropriate “baseline” standard (i.e., the “ordinary incidents of prison life”) against which a

challenged form of confinement should be compared. The prison-official defendants had

recommended using other states’ supermax facilities—the harshest prisons around the country—

to set that baseline. Id. at 353–54. Austin firmly disagreed. “Whatever the ‘ordinary incidents of

prison life’ may encompass,” the opinion reasoned, “they must be decided with reference to the

particular prison system at issue, and can only be truly ‘ordinary’ when experienced by a

significant proportion of the prison population.” Id. at 355.

Nothing in Austin’s “baseline” discussion requires courts to disregard inmate-specific

factors while gauging the atypicality or significance of a given inmate’s hardship. Austin made a

rather straightforward observation: the “ordinary incidents of prison life” captures conditions

experienced by a relatively broad swath of inmates. See id. But when turning to a specific

inmate’s confinement in any given case, courts don’t look for what is “ordinary.” Quite the

opposite—they search for deviations from “ordinary” by comparing the inmate’s actually

experienced conditions to the generally applicable baseline. See Sandin, 515 U.S. at 484.

Factoring in inmate-specific vulnerabilities is consistent with Austin. And no other Sixth Circuit

precedent meaningfully addresses this issue.

Helpfully, other circuits have already weighed in. And every court to reach the issue has

endorsed the consideration of inmate-specific vulnerabilities. The Seventh Circuit, for example,

held that a mentally ill inmate had a protected liberty interest against certain highly restrictive

solitary conditions. Townsend v. Cooper, 759 F.3d 678 (7th Cir. 2014). Those harsh conditions,

combined with their impact on the inmate’s already serious mental illness, “easily me[t]” the

atypical-and-significant-hardship standard. Id. at 686. The Ninth and Second Circuits reached

similar conclusions for inmates with physical disabilities. See Serrano v. Francis, 345 F.3d

1071, 1079 (9th Cir. 2003) (holding that administrative segregation, combined with a

wheelchair-bound inmate’s disability, imposed an atypical and significant hardship on that

No. 23-1083 Finley v. Huss, et al. Page 26

inmate); Wheeler v. Butler, 209 F. App’x 14, 16 (2d Cir. 2006) (holding that depriving a hearing-

impaired inmate of his hearing aids in administrative segregation could constitute an atypical and

significant hardship because the severity of the inmate’s medical needs “may bear upon the

atypicality of his punishment”).

Moreover, as the Tenth Circuit has described, consideration of inmate-specific

characteristics can sometimes even play to the advantage of prison officials. In Estate of

DiMarco v. Wyoming Department of Corrections, prison officials faced the challenge of

incarcerating a person who outwardly presented as a woman but had male sex characteristics.

473 F.3d 1334, 1336 (10th Cir. 2007). They placed her in an all-women’s facility but—after

learning about her situation—deemed it appropriate to assign her to administrative segregation.

Id. In deciding whether the inmate’s indefinite confinement in administrative segregation

implicated a liberty interest, Judge Tymkovich’s opinion carefully considered the inmate’s

unusual personal characteristics. It credited the prison officials’ explanation (which the inmate

herself conceded was true) that segregation was necessary to keep both the inmate and the

general prison population safe. And it acknowledged that no plausible alternatives to segregation

existed at the time. After weighing those and several other factors, the court ultimately

concluded that administrative segregation hadn’t imposed an atypical and significant hardship on

the inmate. Id. at 1342–43.

This Court’s own substantive due process jurisprudence, though not directly applicable,

further reinforces the relevance of inmate-specific characteristics. See J.H. v. Williamson

County, 951 F.3d 709 (6th Cir. 2020). In J.H., we held that officials at a juvenile detention

center had violated a pretrial detainee’s Fourteenth Amendment due process rights by placing

him in solitary confinement. In reaching that holding, we considered vulnerabilities specific to

the detainee that made his placement in segregation “particularly harsh.” Id. at 718. We noted

the duration and nature of his confinement, as well as the detainee’s young age. And most

relevant here, we emphasized the detainee’s severe psychiatric problems and the growing

national consensus that solitary confinement can cause extraordinary harm. We reasoned that the

detainee’s “documented mental health issues made him particularly vulnerable to the effects of

solitary confinement.” Id. at 719.

No. 23-1083 Finley v. Huss, et al. Page 27

In sum, we see no reason to create a circuit split on this issue. Considering an inmate’s

personal characteristics when determining the presence of an atypical and significant hardship

seems both appropriate and intuitive. A paraplegic forced to drag himself around a wheelchair-

inaccessible cell surely experiences an atypical and significant hardship, regardless of the

comparatively tame experiences of able-bodied people confined in similar cells. Serrano, 345

F.3d at 1079. By the same token, extended stints in solitary confinement might be ordinary

incidents of prison life for most inmates—but they impose an entirely different level of hardship

on inmates with severe psychiatric disorders. See Townsend, 759 F.3d at 686; J.H., 951 F.3d at

719.

Applying that standard to Finley’s case is straightforward. Huss subjected Finley to

indefinite administrative segregation that, under Schroeder, ultimately endured for around three

months. The conditions that Finley experienced in his base-level cell were unusually restrictive,

even when compared to other forms of administrative segregation at the same high-security

prison: He was deprived of almost all human interaction. He had almost zero natural light. And

he rarely left his cell. Finally, and most significantly, Finley has severe psychiatric disorders that

render him particularly vulnerable to solitary confinement’s destructive force. Indeed, those

disorders had already prompted repeated instances of self-mutilation—mostly in solitary

conditions. Standing alone, any one of these factors might fall short of creating a liberty interest.

See Wilkinson, 545 U.S. at 224. But “taken together” they amount to an atypical and significant

hardship, meaning that Finley possessed a liberty interest against his stay in solitary confinement

under the unique facts of this case. See id.

B. Adequacy of Procedures

The next step is determining whether the deputy wardens deprived Finley of that

protected liberty interest without affording him due process. The procedural requirements of due

process are highly situation dependent. Wilkinson, 545 U.S. at 224. When analyzing the

sufficiency of procedures for any given situation, courts employ a flexible framework. We

balance (1) the private interest at stake, (2) the risk of an erroneous deprivation and the likely

value of extra safeguards, and (3) the government’s interests, including the fiscal or

No. 23-1083 Finley v. Huss, et al. Page 28

administrative burdens of implementing more stringent procedures. Mathews, 424 U.S. at 334–

35.

In the correctional context, the Supreme Court instructs us to afford officials particular

deference and flexibility. Hewitt v. Helms, 459 U.S. 460, 472 (1983), overruled on other

grounds by Sandin, 515 U.S. at 480–84. After all, prison administration is “an extraordinarily

difficult undertaking,” and prison officials bear significant responsibility for the safety and

security of everyone inside their institutions. Wolff v. McDonnell, 418 U.S. 539, 566–67 (1974).

Elaborate procedural processes can be impractical or dangerous, underscoring the government’s

hefty interest in streamlined procedures. Id. at 562–63, 567; see Wilkinson, 545 U.S. at 227–28

(citing Mathews, 424 U.S. at 335). And because lawfully confined inmates already “have their

liberty curtailed by definition,” their private interests against “even more confined situations” are

somewhat limited—at least when compared to a non-incarcerated person’s interest in avoiding

confinement altogether. Wilkinson, 545 U.S. at 225; Hewitt, 459 U.S. at 475.

The appropriate level of flexibility depends on the nature of the specific proceeding at

issue. Even within prisons, Wolff v. McDonnell prescribes relatively rigorous procedural

safeguards before officials can punish an inmate for serious alleged misconduct: formal notice of

the charges provided in writing 24 hours before a hearing, a written statement describing the

factfinder’s relied-upon reasons, and—to the extent practicable—an opportunity for the inmate to

call witnesses and present exculpatory evidence. 418 U.S. at 563, 566–67. These quasi-

adversarial features are instrumental for “elicit[ing] specific facts.” Greenholtz v. Inmates of

Neb. Penal and Corr. Complex, 442 U.S. 1, 14 (1979). And written records “protect the inmate

against collateral consequences”—like administrative segregation—“based on a

misunderstanding of the nature of the original proceeding.” Wolff, 418 U.S. at 565.

By contrast, administrative or managerial decisions, including non-punitive classification

to administrative segregation, call for more relaxed procedures. Hewitt, 459 U.S at 472–77;

Wilkinson, 545 U.S. at 228–29. The government’s interests dominate within the prison-

management context. Wilkinson, 545 U.S. at 227. And Wolff’s quasi-adversarial requirements

don’t provide much value to administrators making judgment-laden decisions that account for

No. 23-1083 Finley v. Huss, et al. Page 29

inmate needs and broader institutional security considerations. See Hewitt, 459 U.S at 473–74;

Greenholtz, 442 U.S. at 14.

It is unclear precisely what additional procedural safeguards are required where, as here,

an inmate’s classification to administrative segregation is triggered by the outcome of a formal

disciplinary proceeding. But Hewitt, which involved placement in administrative segregation

before formal adjudication of any misconduct charges, sets the outer boundary. See 459 U.S. at

476. To the extent that an inmate has a liberty interest in avoiding administrative segregation,

prison officials satisfy due process by conducting “an informal, nonadversary evidentiary

review.” Id. That review process includes giving the inmate “some notice” and “an opportunity

to present his views”—either orally or in writing—“to the prison official charged with deciding

whether to transfer him to administrative segregation.” Id. Then, once the inmate is placed in

segregated housing, due process further requires “periodic review” of his confinement to ensure

it is supported by “some evidence.” Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (citation

omitted); see also Hewitt, 459 U.S. at 477 n.9.

Given that framework, Finley received the process due. Consider the undisputed

facts: A hearing officer adjudicated Finley guilty of a serious contraband violation in a

proceeding that all agree meets Wolff’s requirements. The next day, a Huss-led Security

Classification Committee met to determine whether, as a result of his contraband violation,

Finley needed to be placed in administrative segregation. Finley personally appeared before the

Committee and argued against segregation by emphasizing his mental health. After reviewing

the record from Finley’s misconduct hearing, the Committee members nonetheless found

segregation necessary. They issued a written classification notice citing his contraband violation

and inability to be managed in the general population. Then, throughout Finley’s three

months in segregation, Schroeder and other officials periodically reviewed his placement. They

repeatedly visited him and issued regular reports citing his contraband violation and his

placement on the Interim Care Program waitlist. Those procedures comfortably satisfy

constitutional requirements.

Finley pushes back. He asserts that his process was deficient for four main reasons:

he received inadequate notice, officials failed to properly consider his mental illness, his periodic

No. 23-1083 Finley v. Huss, et al. Page 30

reviews were perfunctory, and he could not participate in the Committee’s October

reclassification meeting. We are not persuaded.

Adequacy of Notice. Finley first disputes the adequacy of his notice, emphasizing the

distinction between his contraband disciplinary hearing and the next day’s security-classification

hearing. In the former, a hearing officer found Finley guilty of the razorblade-contraband

violation and punished him with revoked privileges. That guilty verdict triggered the latter

proceeding, where Huss’s Security Classification Committee classified Finley to administrative

segregation. All agree that Finley received adequate notice for his disciplinary hearing. But in

Finley’s view, he also needed formal notice for the security-classification hearing because it

addressed a different question and was conducted by different officials.

Finley’s proposed approach clashes with the deference and flexibility that we must afford

prison administrators. See Hewitt, 459 U.S. at 472. The two proceedings, though distinct, were

highly interrelated. After all, Finley’s underlying disciplinary infraction prompted the

Committee’s classification meeting and formed the primary factual basis for his placement in

administrative segregation. Finley wasn’t entitled to separate formal notice for the follow-up

classification proceeding. See Rimmer-Bey, 62 F.3d at 791 (suggesting in dicta that no follow-up

hearing at all is necessary when administrative-segregation placement “was anchored in the

findings of guilt” at a prior misconduct hearing).

That result makes sense. By affording Finley detailed written notice more than 24 hours

before his disciplinary hearing, prison officials enabled him to “marshal the facts and prepare a

defense” against the charges and associated consequences. Wolff, 418 U.S. at 564. And Finley

took full advantage. He used the hearing to argue that his mental illness prevented him from

controlling his actions and that he needed treatment rather than discipline or segregation. To aid

the decisionmaker, Salmi provided a sanction assessment where she flagged the danger of

solitary confinement. Ultimately, that disciplinary proceeding created a written record that Huss

and the other Committee members reviewed the following day when making their classification

decision. To the extent that Finley was also entitled to participate in the Committee’s

classification proceeding, same-day oral notice sufficed. See Hewitt, 459 U.S. at 474–76

(prescribing an “informal nonadversary review of evidence” and “some notice”); see also

No. 23-1083 Finley v. Huss, et al. Page 31

Powell, 720 F. App’x at 226–27 (considering whether the inmate received formal notice for his

disciplinary hearing without addressing notice requirements for his subsequent classification to

segregation).

Consideration of Mental Health. Second, and most forcefully, Finley argues that the

Committee deprived him of due process by classifying him to administrative segregation without

properly considering the mental-health implications. His evidence paints a troubling picture.

The three-person Committee included a mental-health professional, but that mental-health

professional wasn’t personally familiar with Finley’s diagnosis. Nor did the professional believe

that he was empowered to suggest alternatives to segregation at the Committee meeting.

Accordingly, the panel never discussed such alternatives. And when filling out the notice form,

the Committee left the mental-health section blank.

Still, Finley’s evidence falls short of establishing a due process violation. Assuming that

due process required consideration of Finley’s mental health, the Committee members cleared

that threshold: They reviewed paperwork from his misconduct hearing, which included Finley’s

statement pertaining to his mental health. Huss, the Committee’s chairperson, read Salmi’s

warning that prolonged confinement in segregation would likely harm Finley’s mental health.

And the Committee invited Finley to attend its meeting, allowing him to make further arguments

about his mental health. That sufficed. The Due Process Clause does not require the active

participation of a medical expert on the decisionmaking panel, and it isn’t violated by officials’

failure to complete each section of a classification form. See Hewitt, 459 U.S. at 472; see also

Bills v. Henderson, 631 F.2d 1287, 1298–99 (6th Cir. 1980) (noting that deviations from state-

created procedural rules do not necessarily amount to due process violations).

To be clear, this hardly justifies the Committee’s ultimate conclusion. Far from it. Huss

and the other Committee members assigned Finley to administrative segregation despite serious

mental-health risks. Due to the procedures that were followed, those risks were readily apparent

to the Committee. Huss’s decision to disregard those risks might have violated Finley’s Eighth

Amendment rights, but the procedures behind her decision were not flawed enough to create a

separate due process violation.

No. 23-1083 Finley v. Huss, et al. Page 32

Periodic Reviews. Finley next targets the manner in which prison officials periodically

reviewed his placement in segregation. Relying primarily on Selby v. Caruso, he describes those

periodical reviews as “perfunctory and meaningless.” 734 F.3d at 560. Specifically, he

complains that prison officials documented each review with only a single sheet of paper reciting

boilerplate language. None of those review forms, he adds, discussed his health or his ongoing

behavior in administrative segregation.

This argument is meritless. First, Selby is distinguishable. There, the inmate’s periodic

reviews occurred over thirteen years while he remained in administrative segregation. Id. at

559–60. The inmate had also presented evidence that his reviews were a “sham” because a top

correctional official had already placed a hold on his status, preordaining the review process’s

outcome. Id. at 557, 560. At one point, prison officials even overrode the inmate’s qualification

for a lower security classification. Id. at 560. And the inmate had committed only four rule

violations in his last decade of administrative segregation. Id. at 558, 560. Altogether, this

Court concluded that material issues of fact existed concerning whether the inmate’s thirteen-

year confinement in segregation was supported by “some evidence.” Id. at 559 (citation

omitted). By contrast, Finley’s review process lasted for less than three months before his

transfer to the Interim Care Program. Most of his periodic-review forms explicitly mentioned his

placement on the program’s waitlist. They all cited his recent contraband misconduct. And

unlike the inmate in Selby, Finley provides no evidence supporting his accusation that his

reviews were perfunctory or meaningless.

Our decision in Harris v. Caruso further reinforces the sufficiency of Finley’s reviews.

465 F. App’x 481, 485–86 (6th Cir. 2012). The periodic-review process at issue in Harris was

virtually identical to Finley’s—except it continued for eight years rather than three months. See

id. at 482, 485–86. We deemed it sufficiently meaningful. In reaching that conclusion, we noted

(among other things) that the inmate received regular opportunities to participate in interviews.

In addition, the inmate’s review forms often cited examples of his prior major misconduct. Id. at

485–86. Given Finley’s comparatively brief stint in segregation, his similar review process

passes constitutional muster.

No. 23-1083 Finley v. Huss, et al. Page 33

October Reclassification. Finally, Finley challenges the procedures used in the Security

Classification Committee’s October reclassification meeting. In that meeting, which occurred

about two weeks after the Committee initially classified Finley to administrative segregation, a

Schroeder-led panel revisited Finley’s classification and opted to keep him in segregation.

Finley complains that he wasn’t invited to attend. He also argues that, just like in the prior

September meeting, the Committee failed to adequately consider his mental health. In response,

the deputy wardens assert that the October meeting was unnecessary under prison procedures

and had been scheduled in error.

We agree with Finley that unresolved factual issues remain on whether the October

meeting was scheduled in error. However, that doesn’t ultimately matter. Even assuming that

Schroeder intentionally scheduled the meeting to comply with prison policy, Finley was not

entitled to participate or raise additional mental-health arguments. As explained above, Finley

had already received adequate process when the Committee initially assigned him to segregation

in September. He also received meaningful periodic reviews throughout his stay in segregated

housing. No additional process was constitutionally necessary. The Committee’s choice to meet

again and reconsider Finley’s classification did not automatically trigger additional

constitutionally mandated procedural safeguards. See Bills, 631 F.2d at 1298–99. Such a rule,

after all, would discourage officials from taking extra precautionary measures to minimize the

possibility of error.

Resisting that conclusion, Finley argues that he nonetheless deserved process at the

October meeting because it “resulted in a written order that had effect.” Reply Br. 26. But he

fails to elaborate. He does not dispute that, at the time of the October meeting, he had already

been officially classified to administrative segregation. He never alleges that the October notice

form changed the nature or duration of his ultimate confinement in segregation. And he does not

suggest that Schroeder relied on the October meeting—or even the disobeying-a-direct-order

misconduct that precipitated it—when she kept him in segregation. Indeed, none of the periodic

review forms mentioned the October events at all; they specifically cited Finley’s September

contraband misconduct. In sum, Finley cannot show that the Committee’s October

reclassification meeting had independent significance requiring more procedural safeguards.

No. 23-1083 Finley v. Huss, et al. Page 34

V. DISABILITY DISCRIMINATION

Finally, Finley brings statutory discrimination claims under Title II of the Americans

with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA).13 Those statutes

prohibit public or federally funded entities, including prisons, from discriminating against

disabled individuals while operating services or programs. See Knox County v. M.Q., 62 F.4th

978, 999–1000 (6th Cir. 2023) (citing 42 U.S.C. § 12132 and 29 U.S.C. § 794). Given the

statutes’ similar requirements, courts generally evaluate ADA and RA claims together. Id. at

1000.

To prevail under either statute, a plaintiff must establish that (1) he has a qualifying

disability, (2) he is otherwise qualified for a program, and (3) he was excluded from participation

in, denied the benefits of, or subjected to discrimination under a program because of his

disability. S.S. v. E. Ky. Univ., 532 F.3d 445, 453 (6th Cir. 2008). On top of that, RA claims—

unlike ADA claims—impose an extra causation requirement: the plaintiff must show that the

discrimination was “solely” because of his disability. See Lewis v. Humbolt Acquisition Corp.,

681 F.3d 312, 317 (6th Cir. 2012) (en banc); Anderson v. City of Blue Ash, 798 F.3d 338, 357 n.1

(6th Cir. 2015).14 All agree that Finley satisfies the first two elements—his bipolar disorder

counts as a disability, and he is otherwise qualified for prison programs. Finley’s statutory

claims thus ultimately turn on the third and final element.

Plaintiffs may satisfy that final element using two different theories: failure to reasonably

accommodate and intentional discrimination. Knox County, 62 F.4th at 1000. Finley brings

claims under both theories. He first argues that the deputy wardens failed to reasonably

accommodate his mental illness by refusing to promptly place him in a mental-health program or

otherwise modify the conditions of his confinement. He then separately alleges that the deputy

13Unlike his constitutional claims, Finley brings these statutory claims against Huss and Schroeder in their

official capacities. Sovereign immunity is inapplicable because Michigan has waived that defense against RA

claims, see Gean v. Hattaway, 330 F.3d 758, 775 (6th Cir. 2003), and Title II of the ADA abrogates sovereign

immunity in cases where alleged discriminatory conduct independently violates the Constitution, see United States

v. Georgia, 546 U.S. 151, 157–59 (2006).

14In addition, the RA applies only to federally funded entities.Bennett v. Hurley Med. Ctr., 86 F.4th 314,

324 (6th Cir. 2023). No party disputes that MDOC receives the requisite federal funding.

No. 23-1083 Finley v. Huss, et al. Page 35

wardens intentionally discriminated against him by assigning him to segregation because of his

disability. Finley falls short on both theories.

A. Failure to Accommodate

We start with Finley’s failure-to-accommodate claim. To prevail under this theory, a

plaintiff must show that the defendant reasonably could have accommodated his disability but

refused to do so. Knox County, 62 F.4th at 1000. Relatedly, the plaintiff must prove that the

failure to accommodate impeded his ability to participate in or benefit from a program or service.

Id. Because failing to grant a reasonable accommodation is itself direct evidence of

discrimination, plaintiffs who meet this burden need not provide additional evidence of

discriminatory intent.15 See, e.g., Keller v. Chippewa Cnty. Bd. of Comm’rs, 860 F. App’x 381,

385–86 (6th Cir. 2021); Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 908–09

(6th Cir. 2004).

The determination of what counts as a reasonable accommodation is specific to each

case. Bennett, 86 F.4th at 326. Covered entities must make “reasonable modifications in

policies, practices, or procedures” when such modifications are “necessary to avoid

discrimination on the basis of disability.” But entities need not grant an accommodation if they

can prove that it would impose “undue financial and administrative burdens” or “fundamentally

alter the nature” of their services or programs. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3)

(implementing Title II of the ADA); see also McPherson v. Mich. High Sch. Athletic Ass’n, 119

F.3d 453, 459–60, 463 (6th Cir. 1997) (en banc) (explaining that RA failure-to-accommodate

claims follow the same framework). Moreover, plaintiffs are not entitled to their “preferred”

accommodation; rather, an accommodation suffices if it provides the plaintiff “meaningful

access” to the covered entity’s programs or services. Bennett, 86 F.4th at 326 (quoting Ability

Ctr., 385 F.3d at 907).

15The deputy wardens seemingly argue that a plaintiff cannot bring a failure-to-accommodate claim unless

he first establishes a claim of intentional discrimination. That is wrong. Our caselaw makes clear that intentional

discrimination and failure to accommodate are independent theories. E.g., Bennett, 86 F.4th at 326 (collecting

cases); see also Roel v. Hamilton County, 870 F.3d 471, 488 (6th Cir. 2017) (criticizing the district court for

dismissing an ADA claim that lacked evidence of intentional discrimination without also considering the plaintiff’s

failure-to-accommodate theory).

No. 23-1083 Finley v. Huss, et al. Page 36

Finley requested two different accommodations for his disability. First, he asked Huss

and Schroeder for placement in a mental-health treatment program. At his Security

Classification Committee hearing on September 27, for example, he asked Huss for mental-

health treatment instead of discipline. And during his time in administrative segregation, he

repeatedly asked Schroeder to place him in the Interim Care Program. Second, Finley also asked

Schroeder to modify his conditions in administrative segregation to make them less restrictive.

Specifically, he told her that he wanted to be moved to a different segregation cell that was less

isolating than his base-level cell.

We turn first to Finley’s request for placement in a mental-health treatment program. To

begin, Finley meets his burden of showing that this was an actionable accommodation request

under the ADA and RA. A jury could find that failing to grant such an accommodation would

impede Finley’s access to prison services or programming. See Keller, 860 F. App’x at 386

(explaining that “services, programs, and activities” under the ADA encompass “virtually

everything” a prison does, including recreational activities and medical care); cf. Harvard v.

Inch, 411 F. Supp. 3d 1220, 1241 (N.D. Fla 2019) (noting that prisons must make reasonable

accommodations if necessary to afford mentally ill inmates access to safe housing or living

conditions that won’t directly exacerbate their disabilities). A jury could similarly find that an

accommodation was “necessary” to avoid discrimination on the basis of Finley’s disability. See

Madej v. Maiden, 951 F.3d 364, 373 (6th Cir. 2020) (emphasis omitted) (quoting 28 C.F.R.

§ 35.130(b)(7)). After all, “but for” for his mental illness, Finley would not have needed an

accommodation to access basic prison services. See id. A mentally stable person in Finley’s

position would have experienced living conditions in segregated housing that—though

restrictive—wouldn’t have produced nearly the same deleterious impact. Finally, this record

could support a finding that the requested accommodation was reasonable. Salmi formally

requested Finley’s transfer to the Interim Care Program, and Schroeder quickly agreed that such

a transfer was appropriate.

No. 23-1083 Finley v. Huss, et al. Page 37

Finley’s problem, however, is that the deputy wardens did provide his requested

accommodation—albeit after a delay.16 Schroeder promptly ensured that Finley’s name was

placed on the Interim Care Program’s waitlist, and Finley joined the program when a spot

became available. The issue, then, is the extent to which the delay in placing him in the

treatment program is actionable as a failure to accommodate. We haven’t foreclosed the

possibility that a delay-in-accommodation theory is colorable under certain circumstances. See

Newell v. Cent. Mich. Univ. Bd. of Trs., No. 20-1864, 2021 WL 3929220, at *8 (6th Cir. Sept. 2,

2021). Indeed, plaintiffs can likely bring such claims when delays are attributable to intentional

obstruction tactics or bad faith. See id. at *9 (citing Brumley v. UPS, 909 F.3d 834, 840 (6th Cir.

2018)). But we decline to endorse such a theory where delays are merely the result of internal

processing issues or matters outside the entity’s control—at least when such delays are of modest

length. See Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812–13 (6th Cir. 2020); Gerton

v. Verizon S. Inc., 145 F. App’x 159, 168 (6th Cir. 2005).

Finley cannot show that the deputy wardens failed to accommodate his disability by

delaying his transfer to the Interim Care Program. The record reveals that the delay—which

lasted less than three months—stemmed from internal processing constraints outside the prison’s

control. The Interim Care Program had limited space. To the extent that Finley frames his

requested accommodation as a demand for immediate placement in the program, we consider

such a request unreasonable under the circumstances. Anti-discrimination statutes did not

require prison officials to rearrange the mental-health program’s waitlist to create an instant spot

for Finley. That’s true even though those officials had some flexibility in adjusting the waitlist.

Contra infra at 44 (Gilman, J., dissenting in part). After all, such a modification would

accommodate Finley’s mental illness only at the expense of other mentally ill inmates. Indeed,

we should be mindful of the deputy wardens’ penological expertise in reviewing the

reasonableness of proposed accommodations to prison operations. Cf. Knox County, 62 F.4th at

1000 (urging judicial deference to school administrators’ educational expertise).

16Contrary to Judge Gilman’s assertion, we do not hold that the deputy wardens accommodated Finley’s

disability by merely placing him on a waitlist. See infra at 43–44 (Gilman, J., dissenting in part). They

accommodated Finley’s disability by transferring him to the Interim Care Program. The waitlist is relevant, though,

because it shows when prison officials approved—and started processing—Finley’s requested accommodation.

No. 23-1083 Finley v. Huss, et al. Page 38

We turn next to Finley’s alternative request that Schroeder accommodate his disability by

temporarily moving him to a less restrictive cell in administrative segregation until a spot in the

Interim Care Program became available. Finley hasn’t met his burden of showing that such an

accommodation was “necessary” to avoid disability discrimination. See Madej, 951 F.3d at 373

(emphasis omitted) (quoting 28 C.F.R. § 35.130(b)(7)). Granted, Finley has shown that

conditions in administrative segregation exacerbated his disability and that transfer to a treatment

program was necessary to ensure his “meaningful access” to safe living conditions. See Keller,

860 F. App’x at 386 (quoting Ability Ctr., 385 F.3d at 909). But it is far less clear (on this

record, at least) that temporary placement in a different segregation cell, albeit a somewhat less

isolating one, would sufficiently address the problem and facilitate the statutorily required access

to prison services. The ADA and RA do not require entities to grant every accommodation

request that might incrementally improve living conditions—especially when a far more

significant accommodation is already in process.17 That rings particularly true in the

correctional context, where prison administrators must safely manage thousands of inmates with

varying needs. Finley does not have a viable failure-to-accommodate claim.

B. Intentional Discrimination

Finley also seeks relief under an intentional-discrimination theory. To successfully bring

an intentional-discrimination claim, a plaintiff must show unfavorable treatment on the basis of

his disability. Knox County, 62 F.4th at 1000. Proof of the defendant’s motive is key. Id. After

all, the plaintiff must prove that his disability caused the defendant’s discriminatory behavior—

either the “but-for cause” for ADA claims, or the sole reason for RA claims. M.J. ex rel. S.J. v.

Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 453 (6th Cir. 2021) (citation omitted). And the

defendant must act intentionally. Anderson, 798 F.3d at 357. Plaintiffs can avoid summary

judgment by relying on either direct or indirect evidence of the defendant’s discriminatory intent.

M.J., 1 F.4th at 452.

17That said, the fact that Schroeder didn’t take steps to mitigate the risk of harm—such as by temporarily

moving Finley to a less restrictive cell or waiving the loss-of-privileges sanction that curbed his out-of-cell time—is

relevant to the distinct Eighth Amendment question of whether she was deliberately indifferent to the risk.

No. 23-1083 Finley v. Huss, et al. Page 39

1. Direct Evidence

Finley argues that he has direct evidence of discrimination. We analyze claims under a

direct-evidence framework when the defendant has “admitted” discriminatory intent by

acknowledging that it relied on the plaintiff’s disability. Morrisey v. Laurel Health Care Co.,

946 F.3d 292, 297–98 (6th Cir. 2019) (citation omitted). Direct evidence is a “smoking gun” and

“does not require the fact finder to draw any inferences to reach the conclusion that unlawful

discrimination was at least a motivating factor.” Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d

672, 683 (6th Cir. 2016) (citation omitted).

Finley’s direct-evidence argument proceeds in three steps. First, he correctly observes

that the deputy wardens openly based their classification decisions on his misbehavior, including

his contraband misconduct for failing to return a razorblade. He then cites his psychiatric

expert’s (likely accurate) opinion that such misbehavior is strongly tied to Finley’s underlying

mental illness. Thus, he concludes, the deputy wardens effectively admitted to discriminating

against him on the basis of his mental illness. For support, Finley relies on EEOC v.

Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018). In his view, Dolgencorp says that direct

evidence of discrimination exists whenever a defendant’s stated reason for an adverse action is

behavior that can be traced to the plaintiff’s disability.

But Dolgencorp stands for a far narrower principle. It holds only that a defendant cannot

unreasonably deny a plaintiff’s requested accommodation to a generally applicable policy, and

then use that neutral policy as a purportedly nondiscriminatory basis for taking an adverse action.

Id. at 435. In that case, a diabetic cashier had requested an accommodation to her employer’s

policy against eating or drinking during work. The employer illegally denied the

accommodation, apparently unmoved by the cashier’s explanation that her diabetes sometimes

compelled sugar consumption at a moment’s notice. Id. at 432, 434–35. The employer later

fired the cashier after she drank (and paid for) orange juice from the checkout cooler during an

emergency low-blood-sugar episode. Id. at 432. Because its failure to grant a reasonable

accommodation constituted direct evidence of discrimination, we rebuffed the employer’s

attempt to rely on its neutral policy as a nondiscriminatory basis for firing the cashier. Id. at 435.

No. 23-1083 Finley v. Huss, et al. Page 40

Unlike the Dolgencorp cashier, Finley cannot show that the deputy wardens denied him a

reasonable accommodation. And he certainly cannot show that they unreasonably denied him an

accommodation to the prison’s generally applicable policies against, say, possessing dangerous

contraband. That effectively forecloses his direct-discrimination argument. After all,

Dolgencorp never suggested that ties between a plaintiff’s rule-breaking conduct and a

disability—standing alone—automatically bar the defendant from enforcing its neutral rules.

The deputy wardens’ open reliance on Finley’s misconduct is no “smoking gun.” See Gohl, 836

F.3d at 683. At best, the nexus between Finley’s misconduct and psychiatric disorders amounts

to indirect evidence of discrimination.

2. Indirect Evidence

When evaluating intentional-discrimination claims that rely on indirect evidence, courts

employ a burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The plaintiff must first establish a prima facie case of discrimination. Then the

defendant must offer a legitimate, nondiscriminatory reason for its challenged action. Finally,

the plaintiff bears the burden of showing that the defendant’s proffered reason is pretextual.

Sjostrand v. Ohio St. Univ., 750 F.3d 596, 599 (6th Cir. 2014) (citing McDonnell Douglas,

411 U.S. at 802–04).

Even assuming that Finley established a prima facie case, he cannot show that the deputy

wardens’ reason for placing him in administrative segregation was pretextual. The record makes

clear that Finley’s conduct—not his disability—motivated their action. After all, the deputy

wardens explicitly cited his contraband violation and his “inability to be managed with general

population privileges” in paperwork contemporaneous with Finley’s initial assignment. Corr.

Recs., R-88-6 at PageID 754. They also later offered deposition testimony suggesting that they

factored in Finley’s lengthy history of misconduct and “his potential to honor the trust implicit in

a lower level of security.” Huss Dep., R.88-9 at PageID 817. Finley cannot dispute that he has a

lengthy history of rule infractions. And although he quibbles with some of the deputy wardens’

after-the-fact explanations, Finley does not contest that his recent misconduct had prompted their

decision to put him in segregation.

No. 23-1083 Finley v. Huss, et al. Page 41

He instead underscores the nexus between his mental illness and rule violations, directing

us to his psychiatric expert’s opinion connecting the two. The contraband violation is most

illustrative. Sanctioning Finley for failing to return a razorblade that he later swallowed, the

argument goes, is evidence of disability discrimination because “swallowing a razor is behavior

that simply does not occur absent serious mental illness.” Opening Br. 52. Finley is certainly

correct that razor-swallowing and mental illness are “plainly intertwined.” Id. And it is

probably true that disciplining an inmate for self-harm constitutes evidence—likely even direct

evidence—of disability discrimination. In such a case, no daylight separates the conduct and

disability.

But Finley was not sanctioned for swallowing a razor. Rather, prison officials charged

him for hiding the razor and refusing to return it when asked. Granted, Finley’s mental illness

likely motivated that misconduct, and he later would use the same razor for self-harm. Yet that

doesn’t sufficiently close the gap between conduct and disability. After all, there are many

reasons—not necessarily connected to disability—for inmates to keep dangerous contraband.

And in Finley’s case, Salmi had explicitly informed prison officials that Finley’s mental illness

hadn’t affected the charged conduct. An official hardly engages in intentional discrimination by

enforcing broadly applicable prison rules while relying on a medical professional’s opinion that

the disability and conduct were distinct. Inmates cannot avoid that result by later relying on

contrary expert opinions to create material issues of fact. Such a rule would clash with the

statutory requirement that actionable discrimination is “intentional.” See Anderson, 798 F.3d at

357. It would also deeply undermine prison officials’ capacity to ensure prison security and

safety.

VI. CONCLUSION

We AFFIRM the district court’s judgment as to Finley’s procedural due process and

statutory claims. But we REVERSE the district court’s judgment as to Finley’s Eighth

Amendment claim and REMAND for further proceedings consistent with this opinion.

No. 23-1083 Finley v. Huss, et al. Page 42

_____________________________

CONCURRENCE / DISSENT

_____________________________

RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part. I

agree with the majority’s conclusions that summary judgment for the defendants was warranted

for Finley’s procedural due-process and intentional-discrimination claims, but not warranted for

his Eighth Amendment claim. I respectfully disagree, however, that summary judgment for the

defendants was warranted for Finley’s failure-to-accommodate claim under Title II of the

Americans with Disabilities Act and Section 504 of the Rehabilitation Act. There are facts in the

record that would permit a reasonable jury to find that the deputy wardens, Erica Huss and Sarah

Schroeder, failed to implement Finley’s requested accommodations, and that those

accommodations were reasonable, necessary to avoid disability discrimination, and not unduly

burdensome. Because genuine disputes of material fact exist on this issue, I would reverse the

district court’s grant of summary judgment for the defendants on Finley’s

failure-to-accommodate claim and remand for further proceedings.

I. FAILURE TO ACCOMMODATE

To succeed on a failure-to-accommodate claim, a plaintiff “must show that the defendant

reasonably could have accommodated his disability but refused to do so, and that this failure to

accommodate ‘imped[ed] [his] ability to participate in, or benefit from, the subject program.’”

Knox County v. M.Q., 62 F.4th 978, 1000 (6th Cir. 2023) (alterations in original) (quoting

Campbell v. Bd. of Educ. of Centerline Sch. Dist., 58 F. App’x 162, 166 (6th Cir. 2003)).

Implementing regulations do not require governmental entities to make such accommodations if

doing so “would result in a fundamental alteration in the nature of a service, program, or activity

or in undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3). Furthermore, this

court has held that plaintiffs are not entitled to their “preferred accommodations, but merely

a reasonable one that provides meaningful access to the public entity.” Bennett v. Hurley Med.

Ctr., 86 F.4th 314, 326 (6th Cir. 2023) (internal quotations marks and citations omitted).

No. 23-1083 Finley v. Huss, et al. Page 43

Determining whether an accommodation is reasonable or unduly burdensome is “highly

fact-specific, requiring case-by-case inquiry.” Id. (quoting Roell v. Hamilton County, 870 F.3d

471, 489 (6th Cir. 2017)); see also Blanchet v. Charter Commc’ns, LLC, 27 F.4th 1221, 1230–31

(6th Cir. 2022) (same). When evaluating the defendants’ motion for summary judgment, the

facts in that inquiry must be viewed in the light most favorable to Finley, and all inferences must

be drawn in his favor. See Anderson v. City of Blue Ash, 798 F.3d 338, 350 (6th Cir. 2015).

Finley made two requested accommodations while in administrative segregation:

(1) placement in a mental-health treatment program, and (2) placement in a less isolated cell.

Huss and Schroeder argue that immediate placement into the Interim Care Program, an

outpatient mental-health program for prisoners housed in administrative segregation, would have

constituted an undue administrative burden because other prisoners were ahead of Finley on the

program’s waitlist.

But the deputy wardens’ appellate briefing is bereft of any argument regarding why they

did not move Finley in the meantime to a cell with windows or to one with less restrictive

conditions. During oral argument, however, counsel argued that Finley was not moved to

less-isolating conditions in order to prevent his access to razor blades and to avoid further

self-harm.

I first consider Finley’s request for placement into a mental-health treatment program.

The majority concedes that the record before us could support a jury finding that the requested

accommodation was reasonable, that it was necessary to avoid disability discrimination, and that

the failure to grant the accommodation impeded Finley’s access to needed prison services. Maj.

Op. at 36. Yet Finley’s claim fails, according to the majority, because the deputy wardens “did

provide his requested accommodation” by placing him on the waitlist for the Interim Care

Program. Id. at 37 (emphasis in original). The majority reasons that the 79-day delay between

Finley’s placement in administrative segregation and his transfer to the Interim Care Program

“stemmed from internal processing constraints outside the prison’s control,” and that immediate

placement into the program would have unduly burdened prison operations. Id.

No. 23-1083 Finley v. Huss, et al. Page 44

But Finley’s requested accommodation was for placement in the Interim Care Program,

not simply for placement on a waitlist. Although the deputy wardens allege that placement in the

Interim Care Program was not immediately available because other prisoners were ahead of

Finley on the waitlist, there is evidence in the record suggesting that the waitlist was not

immutable. During the extended time that Finley languished in a base-level cell in

administrative segregation, Schroeder met weekly with mental-health professionals and housing

staff to discuss the Interim Care Program’s waitlist. According to her deposition testimony,

prisoners can be moved up or down the waitlist depending on their behavior and the severity of

their mental-health needs. And Finley’s own deposition reveals that during Schroeder’s weekly

visits to his cell, she told him that placement into the program was contingent upon his behavior.

There is no requirement to “immediately implement or accept accommodations,” and

“a delay in providing a reasonable accommodation is not always actionable.” Tchankpa v.

Ascena Retail Grp., Inc., 951 F.3d 805, 812–13 (6th Cir. 2020) (citing Gerton v. Verizon S. Inc.,

145 F. App’x 159, 168 (6th Cir. 2005)). But the record before us is unclear as to whether the

delay in Finley’s placement in the Interim Care Program sufficiently accommodated his

disability or whether the delay was due to factors outside of the deputy wardens’ control.

A reasonable jury could conclude that Schroeder used placement into the Interim Care Program

as an incentive for Finley to improve his behavior despite the accommodation being “necessary

[for him] to avoid discrimination on the basis of [his] disability.” See Bennett v. Hurley Med.

Ctr., 86 F.4th 314, 326 (6th Cir. 2023) (quoting 28 C.F.R. § 35.130(b)(7)(i)).

Reasonable jurors could find that Schroeder failed to accommodate Finley’s disability by

intentionally delaying his transfer to the Interim Care Program while knowing that prolonged

segregation in harsh conditions would likely worsen his mental health and could lead to more

self-harm. A jury might thus conclude that the delay in Finley’s placement into the Interim Care

Program was not due to “internal processing constraints outside the prison’s control.” Maj. Op.

at 37. Such “weighing of evidence, and . . . drawing of legitimate inferences from the facts are

jury functions, not those of a judge” considering a motion for summary judgment. Blanchet

v. Charter Commc’ns, LLC, 27 F.4th 1221, 1226 (6th Cir. 2022) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)).

No. 23-1083 Finley v. Huss, et al. Page 45

The majority also concludes that Finley’s request for better conditions while he was in

administrative segregation fails to support his failure-to-accommodate claim. Maj. Op. at 38.

Although Finley presented evidence that conditions in the base-level cell exacerbated his

disability, the record is unclear, according to the majority, as to whether temporary placement in

less restrictive conditions would have sufficiently ameliorated the problem and facilitated

Finley’s access to required prison services. Id.

Reasonable accommodations are required when they “are necessary to avoid

discrimination on the basis of disability.” Madej v. Maiden, 951 F.3d 364, 373 (6th Cir. 2020)

(quoting 28 C.F.R. § 35.130(b)(7)(i)). Such a necessity exists when “a plaintiff ‘shows that, but

for [his] disability, [he] would have been able to access the services or benefits desired.’” Id.

(quoting Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006))

(cleaned up).

Weeks before Finley was placed in his base-level cell in administrative segregation, he

rapidly decompensated and engaged in further self-harm by overdosing on medication,

swallowing razorblades, and cutting himself. On October 25, 2016, prison officials transferred

Finley from a suicide-observation cell to administrative segregation, where he would remain

until January 11, 2017. Just two days after Finley’s transfer, Mandi Salmi, Finley’s assigned

mental-health professional, emailed Schroeder to request that Finley be released to the Interim

Care Program and warning that Finley’s “treatment needs cannot be met while in segregation

placement.” During this time in administrative segregation, Finley took his prescribed

medication and stopped harming himself. Nevertheless, Finley’s deposition testimony makes

clear that he felt “entombed” in his base-level cell and requested to be moved to a cell with

windows and from which he could communicate with others.

As the majority acknowledges, the conditions in Finley’s base-level cell were particularly

restrictive. Maj. Op. at 10–11. Finley spent 79 days alone in a windowless cell where he was

unable to communicate with anyone because of sound-proof security glass and large industrial

fans that drowned out all outside noise. Id. He enjoyed only eight hours of exercise over this

entire period of near-total isolation. Although Finley stopped harming himself while housed in

No. 23-1083 Finley v. Huss, et al. Page 46

the base-level cell, the psychiatrist retained by Finley determined that Finley’s experience there

resulted in severe trauma akin to post-traumatic stress disorder.

A reasonable jury could conclude that, “but for” Finley’s disability, his experience in

base-level administrative segregation would not have had such a deleterious effect on his health.

See Madej¸ 951 F.3d at 373; see also Brown v. Meisner, 81 F.4th 706, 709 (7th Cir. 2023)

(finding a viable failure-to-accommodate claim where a disabled prisoner’s request for cell

conditions that would not aggravate his disability went unaddressed). And although placement

in better conditions might have been unduly burdensome to the prison, the deputy wardens point

to no facts in the record supporting such a conclusion. Whether a less isolated cell in

administrative segregation would have permitted Finley to avoid discrimination on the basis of

his disability thus remains a question of fact for a jury.

II. CONCLUSION

In sum, there are genuine disputes of material fact regarding Finley’s two requested

accommodations. This should preclude the grant of summary judgment in favor of the

defendants on Finley’s failure-to-accommodate claim. See Anderson v. City of Blue Ash, 798

F.3d 338, 356 (6th Cir. 2015). I therefore respectfully dissent on this issue.

No. 23-1083 Finley v. Huss, et al. Page 47

_____________________________

CONCURRENCE / DISSENT

_____________________________

THAPAR, Circuit Judge, concurring in part and dissenting in part. Timothy Finley was

not your average inmate. He had over 300 misconduct charges and showed no signs of slowing

down. Some violations were violent. Many were sexual. All proved that Finley refused to obey

prison rules.

Finley not only threatened others’ safety; he also risked his own, cutting himself and

swallowing razors. Trying to protect Finley, the wardens—Erica Huss and Sarah Schroeder—

moved him in and out of suicide observation when they believed he posed a threat. That didn’t

solve the problem. Finley snuck razors into observation and swallowed them. Why? Finley

explained he reached a breaking point because his cell area was too loud. He wanted into a

mental-health treatment center where it’s quieter. Finley’s doctor, however, thought his illness

was manageable and his self-harm calculated. So she declined to refer Finley to the treatment

center.

That left the wardens to figure out how to keep Finley—and everyone else—safe.

General population obviously wasn’t an option. Suicide observation wasn’t working. And his

doctor didn’t refer him to the treatment center. That left segregation. The wardens met with

mental-health professionals, who didn’t object to moving Finley to segregation. No binding

caselaw forbade the transfer, either. So the wardens moved Finley to a segregation cell and kept

him there until his doctor referred him to the treatment center.

Was it reasonable to move Finley to segregation? More importantly, could any

reasonable warden conclude that segregation was acceptable? Of course. The majority says

otherwise. So I dissent in part.

I.

Start with the obvious: Huss and Schroeder were in a tough spot. By segregating Finley,

they followed what any reasonable warden does with inmates who can’t be managed in the

No. 23-1083 Finley v. Huss, et al. Page 48

general population. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“[A]dministrative

segregation is the sort of confinement that inmates should reasonably anticipate receiving.”).

What other option did they have? If they kept Finley in suicide observation or the general

population, he’d get another razor and harm himself—and then he’d sue, saying they didn’t do

enough to protect him. See Perez v. Oakland Cnty., 466 F.3d 416, 424–25 (6th Cir. 2006)

(arguing defendants shouldn’t have released inmate from restrictive observation cell). Or he’d

harm someone else—and then that person might sue, saying Huss and Schroeder acted

unreasonably by failing to segregate Finley. See Rager ex rel. G.C. v. McMinn Cnty., No. 21-

5987, 2023 WL 4927252, at *2 (6th Cir. Aug. 2, 2023) (arguing officer “had a duty to

immediately segregate” a dangerous inmate).

Qualified immunity was made for situations like this. Balancing inmates’ rights and

trying to keep everyone safe isn’t an easy task. That’s why wardens get “wide-ranging

deference” in their judgment calls. Hewitt, 459 U.S. at 472 (citation omitted). That’s why

wardens can’t be held liable for decisions they reasonably believe are constitutional—otherwise,

they might shirk their duties for fear of being sued. See Anderson v. Creighton, 483 U.S. 635,

638 (1987). And that’s why, to succeed on his claim, Finley must identify a binding case

“clearly prohibit[ing]” the wardens’ decision “in the particular circumstances” facing them. D.C.

v. Wesby, 583 U.S. 48, 63 (2018); Bell v. City of Southfield, 37 F.4th 362, 367–68 (6th Cir.

2022).

Finley can’t. No binding case holds that it’s unconstitutional to place mentally ill inmates

in segregation. Finley and the majority concede as much. That should end the discussion.

Wesby, 583 U.S. at 63.

Yet the majority concludes otherwise. How? By pointing to two cases holding that

mentally ill inmates have a right to receive psychiatric care: Comstock v. McCrary, 273 F.3d

693 (6th Cir. 2001), and Clark-Murphy v. Foreback, 439 F.3d 280 (6th Cir. 2006). Right off the

bat, these cases are an odd fit. Both are medical-needs cases. Finley, by contrast, raises a

conditions-of-confinement claim. That is, he alleges defendants housed him in the wrong type of

cell, not that they failed to treat his mental health. See R. 10, Pg. ID 65 (challenging the transfer

to solitary confinement without mentioning medical care). It’s easy to see why: Finley received

No. 23-1083 Finley v. Huss, et al. Page 49

a host of medical care—an assigned psychiatrist, medicine, antipsychotic shots, therapy,

temporary housing in a suicide observation cell, weekly evaluations while in segregation, and

eventual placement in a treatment center. And he’s made no effort to show that care was

inadequate.

To be sure, the medical-needs and conditions-of-confinement theories are related. Both

are ways Finley might show his incarceration entailed an “extreme deprivation[]” of a basic

need: medical treatment in the former, and safe housing in the latter. See Hudson v. McMillian,

503 U.S. 1, 9 (1992). But the theories deal with different rights. In medical-needs cases, the

relevant right has little to do with an inmate’s segregation status, and everything to do with

whether the prison provided adequate medical care. See Comstock, 273 F.3d at 708–09

(discussing the “grossly inadequate” psychiatric evaluation, not the placement in segregation);

see also Estelle v. Gamble, 429 U.S. 97, 101, 107–08 (1976) (dismissing a medical-needs claim

without discussing a segregation placement but suggesting a conditions-of-confinement claim

might proceed). Finley instead asserts a right not to be housed in segregation at all—regardless

of the medical treatment he received. See R. 10, Pg. ID 65. Thus, medical-needs cases like

Comstock and Clark-Murphy can’t help Finley. They say nothing about the constitutionality of

his housing.

Labels aside, the majority’s cases don’t apply on their own terms. In Comstock, we said

“the right at issue in this case” is the “right to continuing medical treatment once a prisoner has

been determined to be suicidal.” 273 F.3d at 711. We allowed the inmate to proceed against his

prison doctor because the doctor neglected his “affirmative duty to offer reasonable medical

care.” Id. at 702, 711 (quotation omitted). Similarly, in Clark-Murphy, an inmate sued prison

guards who knew his mental state was severely declining but failed to do anything to help. 439

F.3d at 289–90. That, we held, violated the inmate’s “right to psychological treatment.” Id. at

292. Again, Finley hasn’t claimed defendants denied him psychological treatment. So Comstock

and Clark-Murphy don’t apply to his claim, let alone clearly establish that defendants shouldn’t

have housed him in segregation.

The majority’s solution to this predicament is to climb to a “less granular” and

“[r]elatively broad” level of generality. Maj. Op. at 20. But see Wesby, 583 U.S. at 63

No. 23-1083 Finley v. Huss, et al. Page 50

(instructing courts to use “a high degree of specificity”). Because Comstock and Clark-Murphy

prevent officials from failing to treat an inmate’s illness in one manner (failing to properly

evaluate or monitor the inmate), the majority reasons it must be unconstitutional for an official to

knowingly exacerbate the illness in another manner (housing the inmate in segregation). But

that’s exactly the type of inferential step the Supreme Court has “repeatedly stressed” needs to be

spelled out in binding caselaw. Wesby, 583 U.S. at 63. Otherwise, the unlawfulness of

defendants’ conduct doesn’t “follow immediately” from the precedent. Id. at 63–64 (quotation

omitted).

Even if prison wardens were expected to perform this type of off-the-cuff legal analysis,

the inference isn’t sound. Not every action that knowingly exacerbates an inmate’s mental

health is unconstitutional—even if the inmate is constitutionally entitled to psychiatric care.

Comstock might require a doctor to evaluate suicidal inmates, but that doesn’t mean it’s

unconstitutional for an official to loan the inmate a razor and monitor him while he shaves. Or to

segregate the inmate when he threatens to harm his cellmate. That’s because the

constitutionality of the conduct depends on the size of the risk, the nature of the risk, and the

officials’ response to the risk. See Hudson, 503 U.S. at 9 (requiring “extreme” deprivations of

basic needs); Farmer v. Brennan, 511 U.S. 825, 844 (1994) (no liability if defendants

“responded reasonably” to the risk). And because those factors affect the constitutionality of an

officer’s action, the clearly established analysis must account for them, too.

So even if Comstock and Clark-Murphy required defendants to treat Finley’s mental

illness, Finley must still find a case holding (a) segregation poses risks that rise to an

unconstitutional level and (b) defendants’ reactions to those risks, including their mitigation

efforts and reliance on mental-health professionals, were unreasonable. Comstock and Clark-

Murphy don’t come close. Thus, even if we could ignore the Supreme Court’s instructions, set

aside the “particular circumstances” of Finley’s case, and climb to a “less granular” level of

generality, defendants are still entitled to qualified immunity.

One final point on the clearly established inquiry. The majority justifies its climb to a

high level of generality by pointing to the merits of the Eighth Amendment analysis. As part of

that analysis, we ask whether defendants “knew” their conduct posed “a substantial risk” of

No. 23-1083 Finley v. Huss, et al. Page 51

harm. Farmer, 511 U.S. at 844. Because that accounts for the official’s subjective culpability,

the majority says it’s “justifie[d]” in using a broader level of generality in Eighth Amendment

cases. Maj. Op. at 20.

That reasoning has two problems. First, knowing that an action is risky is different from

knowing that an action is unlawful. While the merits deal with the former, the clearly

established prong deals with the latter. Compare Farmer, 511 U.S. at 847 (knowledge “of a

substantial risk”), with Anderson, 483 U.S. at 640 (constructive knowledge of “the unlawfulness”

of conduct). Second, the merits ask whether an official “subjectively” knew her conduct was

risky. Farmer, 511 U.S. at 829. By contrast, “subjective beliefs . . . are irrelevant” to the clearly

established prong. Anderson, 483 U.S. at 641. Thus, the fact that the merits account for an

officer’s subjective culpability has no bearing on whether a right is clearly established. And

nothing about the merits’ subjective prong justifies a lower bar on the clearly established inquiry.

In sum, to allow Finley’s claim to proceed, the majority bypasses the Supreme Court’s

instructions, draws an unsound inference, and offers a doubly erroneous justification. As a

result, the warden’s already difficult task is made even harder. Approximately 20% of male

Michigan inmates show symptoms of severe mental illness.1 If these inmates can’t be placed in

segregation, what are wardens to do when they threaten safety? Keep them in general population

and put others at risk? That might be unconstitutional. Move them to intensive treatment

centers? But what if, as here, medical staff decline to refer the inmates to the center? Or what if,

as here, the center lacks space or resources to accommodate the inmates? Are wardens expected

to second-guess the medical staff’s judgments? Or to divert resources from other needed

programs? Those options might invite their own set of deliberate-indifference suits. Nothing in

the Constitution forces wardens into such a quandary. And qualified immunity certainly gives

them more leeway to find a solution.

1Brant E. Fries, Independent Study of Mental Health and Substance Abuse, 32–33 (Feb. 16, 2010),

www.michigan.gov/-/media/Project/Websites/corrections/assets/Folder14/2010_Boilerplate_302_Final_Version.pdf.

No. 23-1083 Finley v. Huss, et al. Page 52

II.

I agree with the majority that Finley’s remaining claims fail. Finley’s due process claim

fails because Finley received all the process that could possibly be due. Unlike the majority,

however, I wouldn’t decide whether Finley had a liberty interest in the first place. To resolve

that difficult issue, the majority concludes that mentally ill inmates have different liberty

interests than their healthy peers. See Maj. Op. at 27.

Several questions give me pause about that conclusion. To determine whether a liberty

interest exists, we compare the “nature” and “duration” of segregation to typical prison

conditions. Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 2008). How does an inmate’s

subjective perception of segregation affect either attribute? When does the mental cost of

segregation become “atypical?” Does it depend on the diagnosis? What if the prison gets the

diagnosis wrong? And how are officials to know—must they evaluate an inmate’s mental health

before knowing what process is due? Finally, the underlying liberty interest is “limited to

freedom from restraint.” Sandin v. Conner, 515 U.S. 472, 484 (1995). When the conditions of

segregation are the same for everyone, doesn’t segregation pose the same restraints on

everyone’s freedom?

The majority doesn’t resolve these difficult questions. Without answers to them, I

wouldn’t decide whether Finley’s mental illness engendered a liberty interest.

* * *

All of Finley’s claims should be dismissed. I dissent from the majority’s contrary

disposition of Finley’s Eighth Amendment claim. And with the caveat on liberty interest, I

concur in the remainder.