Petition for Writ of Certiorari — John Wetzel, et al., Petitioners v. Roy L. Williams

Supreme Court briefApr 7, 2025

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No. __________

In the Supreme Court of the United States

JOHN E. WETZEL, IN HIS PERSONAL CAPACITY, AND

LAUREL R. HARRY, IN HER OFFICIAL CAPACITY AS

PENNSYLVANIA’S SECRETARY OF CORRECTIONS,

Petitioners

ROY LEE WILLIAMS,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID W. SUNDAY, JR.

Attorney General

Commonwealth of Pennsylvania

ANTHONY T. KOVALCHICK

Deputy Attorney General

Counsel of Record

Office of Attorney General

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

(412) 565-2543

COUNSEL FOR PETITIONERS

SEAN A. KIRKPATRICK

Chief Deputy Attorney General

Appellate Litigation Section

DANIEL B. MULLEN

Senior Deputy Attorney General

QUESTION PRESENTED

For thirty-seven years, the Pennsylvania Department of Corrections (DOC) maintained a policy of housing all death-row inmates, including those with mental

illnesses, in solitary confinement. The Court of Appeals

upheld the constitutionality of this policy in 1988. And

no precedent from either this Court or the Court of Appeals clearly established that the policy violated the

United States Constitution during the relevant time

period. Pet. App. 107a-114a (Phipps, J., dissenting in

part). Nonetheless, a divided three-judge panel held

that former DOC Secretary John Wetzel was not entitled to qualified immunity for continuing the purportedly unconstitutional policy. In holding that the law

was clearly established, the Court of Appeals relied on

a letter from two Department of Justice (DOJ) officials

expressing their views about the policy’s constitutionality. Pet. App. 26a-40a (opinion).

The question presented is:

Was it clearly established for qualified immunity

purposes that long-term solitary confinement for a

death-row inmate with a mental illness violated the

Eighth Amendment?

PARTIES TO THE PROCEEDING

The petitioners (who were defendants and appellees

below) are former Secretary of Corrections John E.

Wetzel, in his personal capacity, and current Secretary

of Corrections Laurel R. Harry, in her official capacity.

The respondent (who was the plaintiff and appellant below) is Roy Lee Williams.

RELATED PROCEEDINGS

United States District Court for the Eastern District of

Pennsylvania:

Williams v. Wetzel, No. 2:21-cv-01248-ER (Judgment entered on July 21, 2022)

United States Court of Appeals for the Third Circuit:

Williams v. Secretary Pennsylvania Department of

Corrections, No. 22-2399 (Judgment entered on September 20, 2024; Petition for rehearing denied on December 9, 2024)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................. ii

RELATED PROCEEDINGS ........................................ ii

TABLE OF AUTHORITIES .........................................v

OPINIONS BELOW......................................................1

STATEMENT OF JURISDICTION .............................1

CONSTITUTIONAL PROVISIONS INVOLVED ........1

INTRODUCTION .........................................................2

STATEMENT OF THE CASE ......................................3

REASONS FOR GRANTING THE PETITION ...........8

I. THE COURT SHOULD CLARIFY THAT ONLY THE

JUDICIARY CAN CLEARLY ESTABLISH THE LAW

FOR QUALIFIED IMMUNITY PURPOSES. ......................8

II. NONE OF THE JUDICIAL DECISIONS CITED BY THE

COURT OF APPEALS CLEARLY ESTABLISHED THE

ASSERTED EIGHTH AMENDMENT RIGHT DURING

THE RELEVANT TIME PERIOD. .................................14

III.THE QUESTION PRESENTED IS CRITICALLY

IMPORTANT. .............................................................18

IV. THIS CASE IS AN IDEAL CANDIDATE FOR SUMMARY

REVERSAL................................................................21

CONCLUSION ............................................................23

APPENDIX

Appendix A. Court of Appeals panel majority

opinion and dissent (Sep. 20, 2024) ........................1a

Appendix B. District Court opinion

(July 21, 2022) .....................................................116a

Appendix C. District Court order

(July 21, 2022) .....................................................141a

Appendix D. District Court judgment

(July 21, 2022) .....................................................142a

Appendix E. Court of Appeals order denying

en banc review (Dec. 9, 2024) .............................143a

TABLE OF AUTHORITIES

Cases

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................ 2, 14, 15

Bank Markazi v. Peterson,

578 U.S. 212 (2016) ....................................................9

Bell v. Pa. Dep’t of Corrections,

2:22-cv-01516 (W.D. Pa.) .........................................19

Boumediene v. Bush,

553 U.S. 723 (2008) ..................................................10

Brosseau v. Haugen,

543 U.S. 194 (2004) (per curiam) ......................17, 18

Carroll v. Carman,

574 U.S. 13 (2014) (per curiam) ..........................8, 21

City & County of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) ..............................................2, 10

City of Escondido v. Emmons,

586 U.S. 38 (2019) (per curiam) ..............................21

City of Tahlequah v. Bond,

595 U.S. 9 (2021) (per curiam) ..........................14, 21

Clark v. Coupe,

55 F.4th 167 (3d Cir. 2022) ......................................17

District of Columbia v. Wesby,

583 U.S. 48 (2018) ....................................................15

Farmer v. Brennan,

511 U.S. 825 (1994) ............................................17, 18

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985). .................................................11

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................ 7, 12, 13

Kisela v. Hughes,

584 U.S. 100 (2018) (per curiam) .......... 15, 19, 21, 22

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ....................................................9

Marbury v. Madison,

1 Cranch 137 (1803) .................................................10

Medellín v. Texas,

552 U.S. 491 (2008) ....................................................9

Mullenix v. Luna,

577 U.S. 7 (2015) (per curiam) .................... 15, 21, 22

Palakovic v. Wetzel,

854 F.3d 209 (3d Cir. 2017) .....................................16

Parkell v. Danberg,

833 F.3d 313 (3d Cir. 2016). ....................................13

Peterkin v. Jeffes,

855 F.2d 1021 (3d Cir. 1988) ............... 3, 4, 13, 17, 19

Plumhoff v. Rickard,

572 U.S. 765 (2014) ..................................................17

Porter v. Clark,

923 F.3d 348 (4th Cir. 2019) ....................................16

Porter v. Pennsylvania Dep’t of Corrections,

974 F.3d 431 (3d Cir. 2020) ........................... 5, 13, 16

Preiser v. Rodriguez,

411 U.S. 475 (1973) ..................................................11

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) (per curiam) ................................18

Taylor v. Barkes,

575 U.S. 822 (2015) (per curiam) ............................21

Taylor v. Riojas,

592 U.S. 7 (2020) (per curiam) ................................15

United States v. Nixon,

418 U.S. 683 (1974) ..................................................10

Walker v. Harry,

2:24-cv-02295 (E.D. Pa.) ..........................................19

White v. Pauly,

580 U.S. 73 (2017) (per curiam) .................... 2, 15, 21

Williams v. Taylor,

529 U.S. 362 (2000) (plurality opinion) .....................9

Wood v. Strickland,

420 U.S. 308 (1975) ....................................................8

vii

Wyatt v. Cole,

504 U.S. 158 (1992) ..................................................11

Young v. Quinlan,

960 F.2d 351 (3d Cir. 1992) .....................................15

Constitutional Provisions

U.S. CONST., AMEND. VIII .............................................1

U.S. CONST., AMEND. XIV, § 1 .......................................1

Statutes

28 U.S.C. § 1254 ............................................................1

42 U.S.C. § 1983 ............................................................8

42 U.S.C. §§ 12131 et seq. .............................................6

Rules

SUPREME COURT RULE 10 ............................................10

OPINIONS BELOW

The opinion of the Court of Appeals, along with the

partial dissent, is reported at 117 F.4th 503 and is reproduced in the appendix at 1a-115a. The decision of

the District Court is reproduced in the appendix at

116a-140a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on September 20, 2024. The Court of Appeals denied

rehearing en banc on December 9, 2024. On February

20, 2025, Justice Alito extended the time to file a petition for a writ of certiorari to April 8, 2025. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.

U.S. CONST., AMEND. VIII.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

U.S. CONST., AMEND. XIV, § 1.

INTRODUCTION

This Court has repeatedly stressed the importance

of qualified immunity “to society as a whole.” White v.

Pauly, 580 U.S. 73, 79 (2017) (per curiam) (quoting City

& County of San Francisco, Calif. v. Sheehan, 575 U.S.

600, 611 n.3 (2015)). The doctrine ensures that government officials who perform inordinately-difficult

tasks—like running prisons and policing our streets—

are given appropriate “breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

Properly applied, qualified immunity “protects all

but the plainly incompetent or those who knowingly violate the law.” al-Kidd, 563 U.S. at 743 (cleaned up).

Thus, to defeat a claim of qualified immunity, a plaintiff faces a steep climb and must demonstrate that the

official violated a right that was “clearly established”

at the time of the challenged conduct, placing the statutory or constitutional question “beyond debate.” Id. at

735, 741. And because only a court can “say what the

law is,” whether a particular right has been “clearly established” turns on whether it was articulated in prior

judicial decisions. Sheehan, 575 U.S. at 615-617.

Unable to root its holding in controlling precedent

from a court, the majority below instead relied on a letter from two DOJ officials expressing concerns about

the DOC’s policy. Pet. App. 26a-40a (Phipps, J., dissenting in part). In so ruling, the Court of Appeals upended the law of qualified immunity for officials in

three states. For Pennsylvania, New Jersey, and Delaware, the law is “clearly established” for qualified immunity purposes when federal executive branch officials express an opinion on an open legal question. That

untenable approach threatens separation of powers

and federalism, cannot be administered consistently,

and is impossible to square with this Court’s qualified

immunity precedents.

STATEMENT OF THE CASE

1. In November 1982, the DOC decided that all

Pennsylvania inmates sentenced to death would be

confined in a Restricted Housing Unit (RHU) in one of

three maximum security correctional institutions. Pursuant to that policy, death-row inmates were typically

confined to their cells for twenty-two hours per day and

prohibited from interacting with other prisoners.

2. In Peterkin v. Jeffes, 855 F.2d 1021, 1032 (3d Cir.

1988), the Third Circuit held that those conditions of

confinement did not violate the Eighth Amendment.

Although the Third Circuit acknowledged that some of

Pennsylvania’s death-row inmates were psychologically disturbed, it nonetheless affirmed the district

court’s determination that “the emotional and psychological condition of the inmates” was not “attributable

to prison conditions other than the circumstance of living under a sentence of death.” Id. at 1030. Those “psychological disturbances” simply did not demonstrate

the existence of an Eighth Amendment violation. Ibid.

And anticipating that the length of time that inmates

would spend on death row would continue to increase

“because of the deliberate pace of post-conviction review afforded death-sentenced prisoners” and the “political factors surrounding the decision to carry out an

execution,” the Third Circuit specifically stated that

the time inmates spent on death-row was not a “factor”

under the Eighth Amendment. Id. at 1029.

3. Respondent Roy Lee Williams was convicted of

murder and sentenced to death in 1992—just a few

years after Peterkin was decided. Pet. App. 117a. Pursuant to the standard procedures used by the DOC, Mr.

Williams was confined in a Capital Case Housing Unit,

which housed death-row inmates under conditions of

confinement that were not materially different from

those found to be constitutional in Peterkin. Pet. App.

119a.

In July 1996, Mr. Williams purported to attempt suicide. He later told prison officials, however, that he

had merely faked that attempt in order to get out of his

cell to make a telephone call. Pet. App. 119a-120a.

From that point forward, Mr. Williams consistently refused mental health treatment and insisted that he

was fine. Pet. App. 120a.

4. When John Wetzel became the Secretary of Corrections in 2011, he initially continued the existing

DOC policies requiring death-row inmates to be housed

under the same conditions that had been approved in

Peterkin—what the Court of Appeals described as “solitary confinement.”

The phrase “solitary confinement” is often used as

shorthand to describe very different types of restricted

housing. Here, Mr. Williams was housed in the Capital

Case Housing Unit at the State Correctional Institution at Greene (SCI-Greene) during the relevant time

period. Pet. App. 117a. Before 2018, inmates housed in

this unit were permitted to engage in outdoor exercise

activities, for as long as two hours, five days per week.

3d Cir. Dkt. ECF No. 19 at 123 (SCI-Greene Superintendent’s declaration). During each session, inmates

exercised in outdoor enclosures that kept them separated from one another. Ibid. They were also kept in

separate enclosures when they visited SCI-Greene’s

law library. Id. at 124. Death-row inmates received all

of their meals in their cells. Ibid.

Beginning in 2018, the DOC loosened the restrictions on death-row inmates. Death-row inmates

were permitted to engage in outdoor exercise activities

seven days per week, instead of only five. 3d Cir. Dkt.

ECF No. 19 at 123 (SCI-Greene Superintendent’s declaration). Inmates from the same pod were permitted

to exercise together. Ibid. Inmates could spend at least

one hour in the dayroom each day to socialize, play

games, and watch television. Ibid. And inmates received their meals outside of their cells. Ibid.

On December 3, 2019, partially in response to a

class-action lawsuit, the DOC established new procedures for housing death-row inmates that provided

even more opportunities to socialize. Pet. App. 121a122a. Mr. Williams conceded that his claims are limited to only the period of time before December 2019.

Pet App. 121a. 1

5. In Porter v. Pennsylvania Dep’t of Corrections,

974 F.3d 431, 451 (3d Cir. 2020), the Third Circuit announced—for the first time—that “prolonged solitary

confinement satisfie[d] the objective prong of the

Eighth Amendment test” in cases involving death-row

inmates. There, the inmate had been housed on death

row since 1986, see id. at 435—just a few years longer

than Mr. Williams. Critically, because a death-row inmate’s qualified right to avoid prolonged solitary confinement had not been clearly established before this

2020 decision, the Third Circuit held that prison officials (including Secretary Wetzel) were shielded by

qualified immunity. Porter, 974 F.3d at 450-451.

1 “Q. * * * Is your—are your complaints limited to the time

before December 2019 when the Capital Case Unit was—you

know, some of the restrictions were lifted? Or are you complaining

about the current restrictions on the Capital Case Unit, as well?

A. No. It’s not complaining about the current restrictions. It’s

from—my initial enter into the Department of Corrections in 1993

until December 3, 2019.”

3d Cir. Dkt. ECF No. 19 at 66-68 (Williams Deposition at 11-13).

6. Mr. Williams commenced this civil action alleging

violations of his Eighth Amendment rights. 2 The District Court recognized that the Third Circuit had held

in Porter “that in a case where a death row inmate challenged the conditions of his solitary confinement under

the Eighth Amendment, DOC officers were entitled to

qualified immunity.” Pet. App. 136a. As Mr. Williams

raised substantially the same cause of action as the inmate in Porter, Secretary Wetzel was entitled to qualified immunity on the Eighth Amendment claim. Ibid.

The District Court therefore granted him summary

judgment. Pet. App. 140a. 3

7. On appeal, the Third Circuit vacated the District

Court’s judgment granting Secretary Wetzel summary

judgment on the Eighth Amendment claim. Pet. App.

50a. Even though Mr. Williams was removed from solitary confinement in December 2019—nine months before the Third Circuit’s ruling in Porter—the Court of

Appeals held that Secretary Wetzel did not enjoy qualified immunity.

For the first time, the Third Circuit declared that

any prisoner with a known history of mental illness—

including a death-row inmate—had “a clearly-established right not to be subjected to prolonged, indefinite

Mr. Williams also raised claims under the Fourteenth

Amendment and Title II of the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. §§ 12131 et seq.

3 The District Court also dismissed Mr. Williams’ freestanding

Fourteenth Amendment claim and granted the DOC summary

judgment with respect to his ADA claim. Pet. App. 123a, 137a140a. Those claims are not at issue here.

solitary confinement” without a “penological justification” that was separate and distinct from the nature of

his or her sentence. Pet. App. 36a. 4

In determining that Secretary Wetzel was not entitled to qualified immunity with respect to the Eighth

Amendment claim—despite its prior decision in Porter

shielding him from liability for similar claims accruing

before September 2020—the Third Circuit relied on a

2014 letter from the DOJ Civil Rights Division addressed to the Pennsylvania Governor, copying Secretary Wetzel and other Pennsylvania officials. Pet. App.

26a-31a; Pet. App. 51a-106a (DOJ letter). In that letter,

the DOJ opined that the use of solitary confinement to

house death-row inmates violated their constitutional

rights. Pet. App. 52a. The letter was an invitation to

negotiate a different state policy for housing death-row

inmates, stating: “We look forward to collaborating

with [Secretary Wetzel] in the coming months to fashion an agreement between the United States and the

Commonwealth that effectively addresses our shared

concerns.” Pet. App. 53a.

The Third Circuit concluded that the DOJ letter

placed Secretary Wetzel on notice that, as of 2014, it

was “clearly established” that the Eighth Amendment

prohibited him from continuing to house mentally ill

death-row inmates in solitary confinement. Pet. App.

26a-40a. The majority below compared its reliance on

the DOJ letter to this Court’s citation of a DOJ report

in Hope v. Pelzer, 536 U.S. 730 (2002). Pet. App. 39a4 The Third Circuit also held that Mr. Williams’ Title II claim

could proceed because of an alleged “factual dispute” as to whether

the DOC had “failed to make modifications or accommodations to

[his] conditions of confinement” while knowing that he had a serious mental illness. Pet. App. 47a-48a. Again, that claim is not at

issue here.

40a. The majority appended the letter to its precedential opinion. Pet. App. 51a-106a.

In a partial dissent, Judge Phipps observed that the

majority failed to identify any prior judicial decision

holding that mentally-ill death-row inmates could not

be housed in solitary confinement on a long-term basis.

Pet. App. 110a (Phipps, J., dissenting in part). He also

decried the majority’s improper reliance on the DOJ

letter—instead of prior judicial decisions—to determine what was (or was not) “clearly established” for

purposes of qualified immunity. Pet. App. 111a-114a

(Phipps, J., dissenting in part).

The DOC defendants filed a petition for rehearing.

The Third Circuit denied that petition on December 9,

2024. On February 20, 2025, Justice Alito extended the

time for filing a certiorari petition to April 8, 2025.

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD CLARIFY THAT ONLY THE

JUDICIARY CAN CLEARLY ESTABLISH THE LAW

FOR QUALIFIED IMMUNITY PURPOSES.

“A government official sued under [42 U.S.C.] §

1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that

was clearly established at the time of the challenged

conduct.” Carroll v. Carman, 574 U.S. 13, 16 (2014)

(per curiam). Since Wood v. Strickland, 420 U.S. 308,

322 (1975), competent, law-abiding state officials seeking to act “in good faith” looked solely to the courts to

understand what constituted “clearly established constitutional rights.” That was, until this case.

Now, Pennsylvania officials are bound by the constitutional declarations of federal agency officials—

declarations that the judiciary has no opportunity to

review or correct. As Judge Phipps highlighted below,

it was “plainly incorrect” for the majority to give “the

constitutional interpretations of a federal agency * * *

the force of judicial precedent[.]” Pet. App. 111a-112a

(Phipps, J., dissenting in part).

The Third Circuit’s improper use of the DOJ letter

threatens fundamental separation-of-powers principles. Even in areas where deference to executive decision-making is commonplace, executive declarations or

communications cannot control the outcomes in judicial proceedings. Medellín v. Texas, 552 U.S. 491, 523532 (2008). It follows a fortiori that such declarations

or communications cannot be given controlling weight

in determining the meaning of the Constitution, which

constitutes a quintessentially judicial power exercised

by federal courts. “At the core of this power is the federal courts’ independent responsibility—independent

from its coequal branches in the Federal Government,

and independent from the separate authority of the

several States—to interpret federal law.” Williams v.

Taylor, 529 U.S. 362, 378-379 (2000) (plurality opinion). The judicial power cannot be ceded to—or exercised by—other governmental entities. Bank Markazi

v. Peterson, 578 U.S. 212, 225-226 (2016).

Just last year, this Court observed that “the Framers structured the Constitution to allow judges to exercise th[eir] judgment independent of influence from the

political branches.” Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 385 (2024). Yet, in this case, the

Court of Appeals effectively treated the DOJ letter in

the same way that it would treat one of its own en banc

decisions—or a decision of this Court—reversing or

overruling a precedential decision shielding Secretary

Wetzel from suit. That is not permissible. Indeed, it

goes against a foundational pillar of our constitutional

framework.

For over two centuries, it has been “emphatically

the province and duty of the judicial department to say

what the law is.” Marbury v. Madison, 1 Cranch 137,

177 (1803). The judicial power vested in Article III

courts “can no more be shared with the Executive

Branch than the Chief Executive, for example, can

share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a

Presidential veto.” United States v. Nixon, 418 U.S.

683, 704 (1974).

Because only a court can “say what the law is” (rather than what it ought to be), the question as to

whether a particular right is “clearly established”

turns on whether it has been articulated in prior judicial decisions. Sheehan, 575 U.S. at 615-617. “And

qualified immunity, which depends on fair notice at the

time of the alleged violation of a federal right, looks to

judicial opinions—not letters from federal agencies—as

the sources for such notice.” Pet. App. 111a (Phipps, J.,

dissenting in part).

The Third Circuit’s use of the DOJ letter to effectively displace its own precedent in determining the

content of “clearly established” law “has so far departed

from the accepted and usual course of judicial proceedings * * * as to call for an exercise of this Court’s supervisory power[.]” SUPREME COURT RULE 10(a). If left uncorrected, the Third Circuit’s decision will create “a

striking anomaly in our tripartite system of government, leading to a regime in which [executive officials],

not this Court [or other federal courts], say ‘what the

law is’” for purposes of qualified immunity.

Boumediene v. Bush, 553 U.S. 723, 765 (2008) (quoting

Marbury, 1 Cranch at 177).

The Court of Appeals’ ruling also raises obvious federalism concerns, as it makes state officials subservi-

ent to the dictates of DOJ attorneys in areas traditionally reserved to the States, such as the operation and

security of state prisons. See Preiser v. Rodriguez, 411

U.S. 475, 491–92 (1973) (“It is difficult to imagine an

activity in which a State has a stronger interest, or one

that is more intricately bound up with state laws, regulations, and procedures, than the administration of its

prisons.”). “The essence of our federal system is that

within the realm of authority left open to them under

the Constitution, the States must be equally free to engage in any activity that their citizens choose for the

common weal * * *.” Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 546 (1985). Our federal

system is undercut if state prison officials are coerced

to follow the legal opinions of DOJ attorneys out of fear

that they might lose the qualified immunity defense.

Confronted by Judge Phipps’ admonishment, the

majority attempts to explain away its error by legitimizing its reliance on the DOJ letter as proof of “personal notice” to Secretary Wetzel of binding judicial decisions. Pet. App. 38a-39a. This excuse holds no water.

This Court has never held that a plaintiff must

prove that a state official was actually notified of relevant caselaw to defeat qualified immunity. See Wyatt

v. Cole, 504 U.S. 158, 165-166 (1992) (describing the

“wholly objective standard” applicable to qualified immunity while recognizing that it had no subjective element). And if the DOJ letter’s import was simply notice, the document would have deserved only passing

reference. Instead, the majority spent numerous pages

analyzing the letter, Pet. App. 26a-31a, and appended

the full correspondence to its precedential opinion, Pet.

App. 51a-106a. As Judge Phipps observed, the majority

improperly “uses the 2014 Letter to set a date certain

on which a constitutional right was clearly established

– the date of the 2014 Letter.” Pet. App. 113a. The majority’s attempt to suggest otherwise is at war with its

own analysis.

The Court of Appeals purported to rely on Hope v.

Pelzer, 536 U.S. 730 (2002), to justify its reliance on the

DOJ letter to determine the content of “clearly established” law. Pet. App. 27a-29a. But that decision provides no support for what the Court of Appeals did

here.

In Hope, this Court held that qualified immunity

did not shield Alabama prison guards from Eighth

Amendment claims brought by a prisoner who had

been handcuffed to a hitching post without a shirt and

exposed to the sun for long periods of time without water. Hope, 536 U.S. at 733-746. That decision was premised on a determination that the actions of the prison

guards had contravened binding Eleventh Circuit precedent, a regulation promulgated by the Alabama Department of Corrections (ADOC), and “a DOJ report informing the ADOC of the constitutional infirmity in its

use of the hitching post[.]” Id. at 741-742.

The DOJ report referenced in Hope was not used as

a substitute for binding judicial precedent. In fact, by

observing that there was “nothing in the record indicating that the DOJ’s views [had been] communicated

to” the prison guards, this Court premised its decision

on the state of existing judicial precedent (of which the

prison guards had constructive notice) rather than on

anything contained in the report (which they may not

have even received or read). Id. at 745. Thus, this Court

used the DOJ report in Hope to illustrate that the challenged practice had always been cruel and unusual under the Eighth Amendment. Ibid.

In contrast, the Third Circuit used the DOJ’s 2014

letter to establish when Secretary Wetzel should have

realized that the Eighth Amendment’s standards had

changed or evolved. Pet. App. 26a-40a. As Judge Phipps

pointed out in dissent, Hope’s rule permitting a DOJ

report to buttress a conclusion that a state official

should have been on notice that his or her conduct was

(always and obviously) unconstitutional “does not apply” to “conduct that becomes viewed as cruel and unusual by virtue of evolving standards of decency[.]” Pet.

App. 114a (Phipps, J., dissenting in part).

When Secretary Wetzel began his duties in 2011, he

simply continued the longstanding DOC policy requiring death-row inmates to be housed in solitary confinement—the same policy that the Court of Appeals upheld in 1988. Peterkin, 855 F.2d at 1022-1033. And because of this, when the Court of Appeals announced for

the first time that “prolonged solitary confinement satisf[ied] the objective prong” of a death-row inmate’s

Eighth Amendment claim, that court correctly concluded that Secretary Wetzel was entitled to qualified

immunity for claims accruing before the date of its

opinion (September 1, 2020). Porter, 974 F.3d at 450451. 5 That prior qualified immunity determination was

clearly correct: Secretary Wetzel was not “plainly incompetent” for continuing the 32-year-old DOC policy,

supported by Peterkin, when he took office.

Finding no refuge in its own caselaw, the Court of

Appeals was forced to improperly rely on the DOJ letter to establish what its own decisions had not—that,

as of 2014, Secretary Wetzel should have somehow

5 Under Third Circuit precedent, a high-ranking prison official

can be held personally liable for establishing or maintaining a policy, practice, or custom that inflicts a constitutional harm upon a

prisoner. Parkell v. Danberg, 833 F.3d 313, 330-332 (3d Cir. 2016).

In light of the holding in Porter, 974 F.3d at 451, the DOC defendants did not specifically argue that Williams’ Eighth Amendment

claim failed on the merits (aside from the issue of qualified immunity).

known that the DOC’s policy had become unconstitutional. As Judge Phipps explained, the majority impermissibly used the letter “to set a date certain on which

a constitutional right was clearly established” despite

the fact that the alleged right had never before been

recognized in a decision rendered by either this Court

or the Third Circuit. Pet. App. 113a (Phipps, J., dissenting in part).

Given all of this, how on earth was Secretary Wetzel

to know that the unconstitutionality of the DOC policy

had become “beyond debate” in 2014? al-Kidd, 563 U.S.

at 741. The answer is simple—there was no way of

knowing. Secretary Wetzel was not “plainly incompetent,” id. at 743, in failing to predict the Third Circuit’s

“new rule of constitutional law[.]” Pet. App. 107a

(Phipps, J. dissenting in part). Qualified immunity exists to protect law-abiding officials like Secretary Wetzel in precisely this type of situation.

* * *

By erroneously outsourcing its Article III powers to

two executive branch officials, the Court of Appeals upended qualified immunity jurisprudence for state officials in Pennsylvania, New Jersey, and Delaware. This

Court frequently grants certiorari to summarily reverse decisions rendered in defiance of its qualified immunity jurisprudence. See, e.g., City of Tahlequah v.

Bond, 595 U.S. 9, 12-14 (2021) (per curiam). It should

do so here.

II.

NONE OF THE JUDICIAL DECISIONS CITED BY

THE COURT OF APPEALS CLEARLY ESTABLISHED THE ASSERTED EIGHTH AMENDMENT

RIGHT DURING THE RELEVANT TIME PERIOD.

State officials like Secretary Wetzel enjoy qualified

immunity unless they violated “clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Kisela v. Hughes, 584 U.S.

100, 104 (2018) (per curiam) (quoting White, 580 U.S.

at 78-79). A right is clearly established when it is “sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)

(citation omitted). “In other words, existing law must

have placed the constitutionality of the officer’s conduct ‘beyond debate.’” District of Columbia v. Wesby,

583 U.S. 48, 63 (2018) (quoting al-Kidd, 563 U.S. at

741). “This demanding standard protects all but the

plainly incompetent or those who knowingly violate the

law.” Ibid. (cleaned up); see also al-Kidd, 563 U.S. at

743. Secretary Wetzel deserves neither label here. He

cannot be held liable for failing to presage Third Circuit

rulings. And no judicial decision clearly established the

purported Eighth Amendment right at issue here.

In Young v. Quinlan, 960 F.2d 351, 354-355, 363365 (3d Cir. 1992), the Third Circuit held that a prisoner had raised a genuine issue of material fact concerning the constitutionality of his conditions of confinement by claiming that he had been placed in a “dry

cell” (i.e., a cell with no toilet and no running water) for

four days as a punishment for deliberately clogging a

toilet and flooding his cell. But the prisoner in Young

maintained that he had been denied opportunities to

leave the dry cell to urinate and defecate, and that

prison officials had refused to give him toilet paper,

drinking water, and water to wash his hands before

eating. Young, 960 F.2d at 363. That decision merely

stands for the unremarkable holding that the Eighth

Amendment prohibits prison officials from housing

prisoners in unsanitary conditions. See e.g. Taylor v.

Riojas, 592 U.S. 7, 8-9 (2020) (per curiam). Mr. Williams makes no such allegations here.

Moreover, unlike Mr. Williams, the inmate in

Young was not on death row. Before its decision in this

case and even after Mr. Williams was released from solitary confinement in December 2019, the Third Circuit

continued to distinguish cases challenging the conditions experienced by death-row inmates from cases

challenging the “solitary confinement” of prisoners who

had never been sentenced to death. Porter, 974 F.3d at

450.

Palakovic v. Wetzel, 854 F.3d 209, 215 (3d Cir.

2017), involved a mentally ill inmate who committed

suicide after being repeatedly placed in solitary confinement. The Third Circuit determined that the prisoner’s parents had stated actionable Eighth Amendment claims against prison officials by alleging that

those officials had repeatedly placed the prisoner in solitary confinement even though they knew about “the

devastating mental health consequences caused by

long-term isolation” and the inmate’s mental illness.

Palakovic, 854 F.3d at 225-226. Like the inmate in

Young, however, the inmate in Palakovic was not on

death row. Recognizing the importance of this distinction from a qualified immunity perspective, the Third

Circuit in Porter specifically declared the death-row inmate’s reliance on Palakovic to be “unavailing” precisely because the inmate in that case had not been on

death row. Porter, 974 F.3d at 450. 6

6 When the Third Circuit decided Porter, only the Fourth Cir-

cuit had previously held that the conditions experienced by deathrow inmates housed in solitary confinement could satisfy the objective prong of an Eighth Amendment claim. Porter v. Clark, 923

F.3d 348, 355-361 (4th Cir. 2019). As the Third Circuit correctly

recognized, that “single out-of-circuit case” was plainly “insufficient to clearly establish” an Eighth Amendment right allegedly

possessed by death-row inmates residing in other parts of the

country. Porter, 974 F.3d at 451.

In Clark v. Coupe, 55 F.4th 167, 182 (3d Cir. 2022),

the Third Circuit held that, by 2016, an inmate who

was “known to be seriously mentally ill” had a “clearly

established” Eighth Amendment right “to not be placed

in solitary confinement for an extended period of time

by prison officials who were aware of * * * the risk of

lasting harm posed by such conditions.” Of course, the

2022 decision in Clark, which also involved an inmate

who was not on death row, is irrelevant to whether Secretary Wetzel was on notice of the Eighth Amendment’s requirements before December 2019. See Plumhoff v. Rickard, 572 U.S. 765, 779-780 (2014). Decisions

postdating the relevant period of time “could not have

given fair notice to [Secretary Wetzel] and are of no use

in the clearly established inquiry.” Brosseau v. Haugen,

543 U.S. 194, 200, n. 4 (2004) (per curiam). And even if

the earlier decisions cited in Clark supported its holding that most inmates with known mental illnesses had

an Eighth Amendment right to avoid being housed in

solitary confinement for extended periods of time, the

Third Circuit’s 1988 decision in Peterkin clearly provided Secretary Wetzel with valid reasons to believe

that the general principles articulated in those decisions did not apply with equal force—or did not apply

at all—to inmates on death row. Peterkin, 855 F.2d at

1023-1033.

The Third Circuit’s citation to Farmer v. Brennan,

511 U.S. 825 (1994), also provides no support for its decision. Pet. App. 38a, n. 147. Although Farmer established the general principle that “a prison official may

be held liable under the Eighth Amendment for denying humane conditions of confinement” if he or she subjectively “knows that inmates face a substantial risk of

serious harm and disregards that risk[,]” that decision

had nothing to do with death-row inmates or solitary

confinement. Farmer, 511 U.S. at 847. Instead, it involved an inmate who sued prison officials for failing to

prevent a sexual assault that had been perpetrated by

another inmate. Id. at 830. To the extent the Third Circuit based its decision on Farmer, it improperly disregarded this Court’s admonition that the “inquiry” as to

whether a particular official is entitled to qualified immunity “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5-6 (2021) (per

curiam) (quoting Brosseau, 543 U.S. at 198).

As Judge Phipps recognized, “[u]nder that tapestry

of precedent, the right as articulated by the Majority

Opinion was not clearly established between 2014 and

2019 when Mr. Williams was in solitary confinement.”

Pet. App. 111a (Phipps, J., dissenting in part). And because a DOJ letter does not, and cannot, clearly establish the law, Secretary Wetzel was plainly entitled to

qualified immunity. Pet. App. 115a (Phipps, J., dissenting in part).

III.

THE QUESTION PRESENTED

IMPORTANT.

CRITICALLY

In Judge Phipps’ words, the majority below committed a “grievous error offensive to basic principles of separation of powers[.]” Pet. App. 111a (Phipps, J., dissenting in part). While the undermining of our constitutional structure is itself important enough to warrant this Court’s review, the gravity of the Third Circuit’s grievous error extends far beyond this case.

Mr. Williams was not the only death-row inmate

held in solitary confinement prior to 2019. Currently,

52 other inmates have, collectively, 27 cases pending in

district courts against Secretary Wetzel on this precise

claim. By “misus[ing] the 2014 Letter in its efforts to

defeat qualified immunity[,]” the Court of Appeals improperly exposes Secretary Wetzel to liability in all of

these cases.

The Third Circuit’s erroneous ruling extends well

beyond these two-dozen cases. Additional inmates have

begun using the DOJ letter in class action lawsuits

against other correctional officials. 7 The Third Circuit’s

“big mistake[,]” see Pet. App.112a (Phipps, J., dissenting in part), could result in punishing Secretary Wetzel

and other prison officials—to the tune of millions upon

millions of dollars in public funds—because they correctly did not view a federal agency letter as clearly establishing the law. These cases could significantly impact the DOC’s resources and, by natural extension, inhibit Pennsylvania’s ability to manage its prisons.

Furthermore, the Third Circuit’s “big mistake” cannot be cabined to just prison cases. Hundreds of Pennsylvania officials have—prior to this decision—operated under the reasonable belief that, so long as they

do not violate clearly established law as articulated by

a court, they are protected by qualified immunity. That

shield has been shattered. State officials, police officers, and prison guards must now take into account all

constitutional musings of the Executive Branch. That

is neither fair nor workable.

Troublingly, in this case the Court of Appeals permitted a letter by an Acting Assistant Attorney General and a United States Attorney to override that

court’s own precedent. See Peterkin, 855 F.2d at 1032.

If such a thing is even remotely permissible, the fair

notice component of qualified immunity is erased. See

Kisela, 584 U.S. at 104. How can average police officers

7 Walker v. Harry, 1:25-cv-00050 (M.D. Pa.), dkt. 1 (complaint

at ¶¶ 50-52); Bell v. Pa. Dep’t of Corrections, 2:22-cv-01516 (W.D.

Pa.), dkt 75 (second amended complaint at ¶ 50).

or prison guards reasonably be expected to know that

their conduct is unlawful if the constitutional interpretations of a federal agency can override judicial decisions? The answer is again obvious; they cannot.

Difficult unanswered questions arise from this ruling.

• Which letters by a federal agency clearly establish the law?

• Must the letter be from an agency head to clearly

establish the law, or may the letter be from

agency staff?

• Do letters from the DOJ possess a unique authority to clearly establish the law, or can any

federal agency put state officials on notice of new

constitutional interpretations?

• What should a state official do if a federal agency

issues one opinion and then, under a new administration, issues a conflicting opinion?

• Would a letter from the DOJ endorsing a state

policy carry any qualified immunity significance?

• Can a letter from an advocacy group interpreting the Constitution defeat qualified immunity?

These obvious questions demonstrate how the Third

Circuit’s novel restructuring of qualified immunity is

unmoored from this Court’s caselaw. If this decision is

permitted to stand, it is unclear how state and municipal employees can know whether their conduct is constitutional. Qualified immunity becomes a gamble, rather than a safety net.

Finally, and perhaps most troubling, letters from

federal agencies are not generally reviewable by this

Court. Should a court of appeals misinterpret a constitutional provision, this Court may, in its discretion,

correct that error. If the DOJ sends a letter to a Penn-

sylvania official misinterpreting a constitutional provision, that letter cannot be appealed to this Court. To

whom should state officials appeal an unfavorable DOJ

letter?

The Court of Appeals’ ruling that a federal executive-branch letter can “set a date certain on which a

constitutional right was clearly established[,]” Pet.

App. 113a, is clearly unworkable. It is already causing

confusion among Pennsylvania officials. And courts

within the Third Circuit will undoubtedly struggle to

reconcile the Court of Appeals’ inchoate approach with

this Court’s jurisprudence.

The Court of Appeals’ holding offends our constitutional structure. This critically important case warrants the Court’s review.

IV.

THIS CASE IS AN IDEAL CANDIDATE FOR SUMMARY REVERSAL.

This Court often summarily reverses where, as

here, the court of appeals egregiously misapplied the

qualified immunity standard. See, e.g., Carroll v. Carman, 574 U.S. 13, 17-20 (2014) (per curiam); Mullenix

v. Luna, 577 U.S. 7 (2015) (per curiam); White v. Pauly,

580 U.S. 73 (2017) (per curiam); Kisela v. Hughes, 584

U.S. 100 (2018) (per curiam); City of Escondido v. Emmons, 586 U.S. 38, 43 (2019) (per curiam); City of

Tahlequah v. Bond, 595 U.S. 9, 10-14 (2021) (per curiam). That practice has also been employed in the

Eighth Amendment context. See, e.g., Taylor v. Barkes,

575 U.S. 822, 825 (2015) (per curiam) (summarily reversing where the right to adequate prison suicide prevention protocols was not clearly established). This

case, too, presents an ideal opportunity for summary

reversal.

The decisions cited by the Third Circuit to support

the unprecedented rule announced in this case “are

simply too factually distinct to speak clearly to the specific circumstances here.” Mullenix, 577 U.S. at 18. Under Peterkin, Secretary Wetzel had every reason to believe that it was constitutional to house all death-row

inmates in solitary confinement. Peterkin, 855 F.2d at

1022-1033. And he was not required to anticipate or

predict what the Court of Appeals would later announce in Porter or in this case. Kisela, 584 U.S. at 107

(explaining that “a reasonable officer is not required to

foresee judicial decisions that do not yet exist”).

Because the Court of Appeals disregarded both fundamental separation-of-powers principles and this

Court’s prior decisions involving a state official’s entitlement to qualified immunity, this Court should grant

Secretary Wetzel’s certiorari petition and summarily

reverse the Third Circuit’s decision denying him qualified immunity with respect to Mr. Williams’ Eighth

Amendment claim.

CONCLUSION

The Court should grant the petition and summarily

reverse the Court of Appeals’ decision holding that

qualified immunity does not shield Secretary Wetzel

from Mr. Williams’ Eighth Amendment claim. Alternatively, the Court should grant the petition, exercise plenary review, and resolve the question presented.

Respectfully submitted,

DAVID W. SUNDAY, JR.

Attorney General

Commonwealth of Pennsylvania

ANTHONY T. KOVALCHICK

Deputy Attorney General

Counsel of Record

SEAN A. KIRKPATRICK

Chief Deputy Attorney General

Appellate Litigation Section

DANIEL B. MULLEN

Senior Deputy Attorney General

Office of Attorney General

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

(412) 565-2543

April 2025

COUNSEL FOR PETITIONERS

APPENDIX

Appendix A. Court of Appeals panel majority

opinion and dissent (Sep. 20, 2024) .........................1a

Appendix B. District Court opinion

(July 21, 2022) ...................................................... 116a

Appendix C. District Court order

(July 21, 2022) ...................................................... 141a

Appendix D. District Court judgment

(July 21, 2022) ...................................................... 142a

Appendix E. Court of Appeals order denying

en banc review (Dec. 9, 2024) .............................. 143a

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-2399

_____

ROY L. WILLIAMS,

Appellant

SECRETARY PENNSYLVANIA DEPARTMENT OF

CORRECTIONS

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:21-cv-01248)

District Judge: Honorable Eduardo C. Robreno

_______________

Argued on July 14, 2023

Before: PHIPPS, MONTGOMERY-REEVES and

McKEE,

Circuit Judges.

(Opinion filed: September 20, 2024)

_______________

Matthew A. Feldman [Argued]

Pennsylvania Institutional Law Project

718 Arch Street, Suite 304 South

Philadelphia, PA 19106

Counsel for Appellant

Michelle A. Henry

Anthony T. Kovalchick [Argued]

J. Bart DeLone

Office of Attorney General of Pennsylvania

Appellate Litigation Section

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

McKEE, Circuit Judge

Roy Lee Williams, a death-row prisoner with a

history of mental illness, was held in solitary

confinement on the Capital Case Unit (CCU) of a

Pennsylvania state correctional institution for twentysix years. Williams filed this action alleging that, given

his known history of serious mental illness, being

continuously held in solitary confinement for twentysix years without penological justification violated the

Eighth Amendment’s cruel and unusual punishment

clause and the Americans with Disabilities Act (ADA).

The District Court granted summary judgment for

Defendants. It held that Secretary John E. Wetzel, the

former Secretary of the Pennsylvania Department of

Corrections (DOC), was entitled to qualified immunity

on the Eighth Amendment claim and that Williams

could not show that the DOC was deliberately

indifferent under the ADA. 1 Williams now appeals the

District Court’s grant of Defendants’ motion for

summary judgment on both claims.

Prior to the District Court’s summary judgment

decision, on April 1, 2021, the District Court sua sponte

dismissed Williams’ Fourteenth Amendment claim,

pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii), for failure to

state a claim. Williams also appeals that decision.

Our review of the District Court’s decision

requires us to draw all reasonable inferences in

Williams’ favor, including that the Secretary had

knowledge of Williams’ preexisting serious mental

illness. We must then determine if the Secretary

should have known that holding this death-row

prisoner with preexisting serious mental illness in

solitary confinement from 1993 to 2019 without

penological

justification

violated

the

Eighth

Amendment.

We conclude that the Secretary had “fair and

clear warning” that his conduct was unconstitutional

and should have known that keeping Williams in

solitary confinement would constitute cruel and

1 Since Plaintiff filed suit, George Little has replaced Secretary

Wetzel as the acting Secretary of Corrections. Accordingly, the

Court has deemed Plaintiff's ADA claim to be against George

Little in his official capacity as the Secretary of Corrections. For

purposes of this opinion, we refer to Secretary Wetzel and George

Little as “the Secretary” throughout.

unusual punishment. 2 Therefore, the doctrine of

qualified immunity does not shield the Secretary from

Williams’ Eighth Amendment claim. Our prior

precedents and the record before us leave no room for

doubt that it has long been clearly established that

someone with a known preexisting serious mental

illness has a constitutional right not to be held—

without penological justification—in prolonged solitary

confinement.

As to Williams’ Title II ADA claim, the District

Court correctly determined that there was a material

factual dispute as to whether the DOC knew that

Williams had a serious mental illness. 3 However, the

court erroneously concluded that a trier of fact could

not find that the DOC was deliberately indifferent to

the risk of harm it caused by placing and keeping

Williams in solitary confinement despite his

preexisting serious mental illness. Accordingly, we will

vacate the District Court’s grant of summary judgment

on both claims and remand for further proceedings. We

will affirm the District Court’s dismissal of Williams’

Fourteenth Amendment claim.

Factual Background

Roy Lee Williams was held on death row in solitary

confinement in the CCU from 1993 to 2019—twentysix years. Astonishingly, he was only subject to an

active death warrant for thirty-seven days of those

twenty-six years. 4

2 United States v. Lanier, 520 U.S. 259, 271 (1997).

3 J.A. 012, 035.

Williams’ death warrant is no longer active. His first death

warrant was signed on October 11, 1995. His execution was

scheduled for October 26, 1995, and stayed on October 20, 1995.

Williams’ Mental Health History

Williams’ history of serious mental health issues

dates back to childhood. In 1979, when Williams was

fourteen, he was involuntarily committed to the

Philadelphia Psychiatric Center for making suicidal

threats and exhibiting violent behavior. 5 There, he was

diagnosed with depression and suicidal ideation. 6

In 1994, while in custody at SCI-Graterford,

Williams sought help from the Psychological Services

Department

because

was

deteriorating

emotionally. A psychiatrist diagnosed him with a

psychiatric disability and placed him on the DOC’s

Mental Health Roster, with a “C” designation.8 At some

His second death warrant was signed on February 2, 1996. His

execution was scheduled for February 20, 1996, and stayed on

February 12, 1996. His third death warrant was signed on

December 20, 2004. His execution was scheduled for February 17,

2005, and stayed on January 7, 2005.

5 J.A. 108; 110–11.

6 Three to six months after his discharge, Williams voluntarily

returned to the Philadelphia Psychiatric Center for ninety

additional days of inpatient treatment. He participated in family

therapy sessions for roughly one year after his second

hospitalization.

7 He informed a psychologist that he had a history of suicidal

ideation and that he had been involuntarily committed to the

Philadelphia Psychiatric Center as a teenager.

8 The DOC scores the mental health of incarcerated people “on a

four-point nominal scale system.” J.A. 205. People on the “A”

Roster have “no identified psychiatric/[intellectual disability]

needs or history of psychiatric treatment.” Id. People on the “B”

Roster have an “identified history of psychiatric treatment, but no

current need for psychiatric treatment; [these individuals are]

placed on inactive [mental health]/[intellectual disability] roster.”

Id. People on the “C” Roster are “currently receiving psychiatric

treatment, but [are] not currently diagnosed with a [serious

mental illness] or functional impairment and do[] not have an

point during his incarceration, he was downgraded to

the “B” Roster.9

On December 30, 1995, Williams was referred to

a psychiatrist at SCI-Graterford due to manifestations

of “depression and anxiety.”10 During an evaluation

performed on January 29, 1996, Williams described his

psychiatric history of visits to the Philadelphia

Psychiatric Center as a young teenager.11 Mental

health staff found that he “[p]resented no mental

decompensation or emotional problems.”12

However, in 1996, in support of Williams’ Post

Conviction Relief Act (PCRA) petition, Dr. Barry

Crown, a psychologist and neuropsychologist, and Dr.

Robert Fox, a psychiatrist, evaluated Williams and

shared their conclusions with his criminal defense

attorneys who, in turn, shared them with the DOC.13

Both doctors provided information about Williams’

traumatic childhood and his struggles with mental

illness, including his psychiatric hospitalization. Dr.

[intellectual disability] or [are] not [guilty but mentally ill]. Id.

Finally, the “D” Roster is for people who are “currently diagnosed

with a [serious mental illness], [intellectual disability], credible

functional impairment, or [are] [guilty but mentally ill].” Id.

9 J.A. 121.

10 J.A. 294.

11 Id.

12 Id.

13 The DOC notes that “those declarations were not mentioned in

the summary of Williams’ medical records that had been drafted

during a review completed by attorneys working for the Capital

Habeas Unit of the Federal Community Defender Office for the

Eastern District of Pennsylvania.” Appellee Br. 25 n.5. The

District Court determined, however, that there was an issue of

fact as to whether these declarations were provided to the prison’s

mental health staff. Williams v. Wetzel, No. 21-1248, 2022 WL

2869316, at *9 (E.D. Pa. July 21, 2022).

Crown documented Williams’ brain damage and the

resulting “impairments and deficiencies” that

neuropsychological testing had revealed.14 These

included “impaired cognition,” “emotional lability,” and

deficiencies in “reasoning capacity.” 15 The evaluation

confirmed, in his opinion, that Williams was “severely

psychologically,

cognitively

and

emotionally

impaired.” Similarly, Dr. Fox described Williams as

having “ingrained psychological and emotional

impairments,” including symptoms of Post Traumatic

Stress Disorder and “depression.”17 Williams asserts

that copies of the doctors’ declarations were provided to

the DOC mental health staff.18

On July 3, 1996, during his period of

incarceration at SCI-Graterford, Williams attempted

to commit suicide by “ma[king] a noose out of a sheet.”19

In the period leading up to this suicide attempt,

Williams told correctional officers that he heard “voices

telling him to kill himself.” 20 Because of the suicide

attempt, Williams was placed in a psychiatric

observation cell for two or three days. The cell is “like

an isolation cell where they take all your clothes.” 21

While confined there, Williams was offered Prozac,

which he declined. Williams later told his attending

physician and the other mental health professionals

that he was “faking” the suicide attempt and had

attempted suicide “to get to another [housing] unit[,] to

make a phone call[,] just to get out [of] the cell.”22 When

subsequently deposed, however, Williams swore that

14 J.A. 51–52.

15 J.A. 52–53.

16 J.A. 55.

17 J.A. 56.

18 The Secretary argues that even if it had been provided with the

doctors’ declarations, these declarations “could not have placed

he had in fact attempted suicide, and only told mental

health staff that he had been “faking” the attempt in

order to get out of the psychiatric observation cell.23

Following this incident, DOC officials removed

Williams from the psychiatric observation cell and

placed him in disciplinary custody for roughly six

months. As a result of his custody status, his

property—including his tv and radio—were removed

from his cell, and he visited the yard alone. Williams

describes disciplinary status as being “isolated on top

of being isolated.”24 After being placed in disciplinary

custody, Williams did not have further contact with the

Mental Health Department.25

B. Confinement on Death Row

Although the Secretary argues that Williams’

placement in solitary confinement was required under

Section 4303 of Pennsylvania’s Prison and Parole

Secretary Wetzel . . . on notice that Williams was mentally ill”

because the experts’ opinions were rejected during subsequent

PCRA proceedings. Appellee Br. 25–26 (citing Commonwealth v.

Williams, 846 A.2d 105, 110–11, 113 (Pa. 2004)). However, there

is no evidence in the record that the DOC was aware of the

subsequent PCRA proceedings, and thus nothing to suggest that

the determinations in the PCRA proceedings would have altered

the DOC’s assessment of whether Williams had a preexisting

mental illness.

19 J.A. 114.

20 J.A. 294.

21 J.A. 113–14.

22 J.A. 114.

23 J.A. 114.

24 J.A. 115–16.

25 This is with the exception that on August 8, 2002, his psychiatric

records indicate that he “seem[ed] worried and anxious.” J.A. 294.

Code, 26 that statute was not enacted until five years

after Williams was placed in solitary confinement.27

Williams was placed in solitary initially pursuant to

the DOC’s internal policy.28 Section 4303 thereafter

mandated that upon receipt of a death warrant, “the

secretary [of corrections] shall, until infliction of the

death penalty . . . keep the [incarcerated person] in

solitary confinement.”29 However, where, as here, an

inmate’s death warrant expired, it was “entirely a

matter of the Department’s discretion where to house

an inmate.” 30 Until November 2019, the DOC held

individuals with expired death warrants in solitary

confinement indefinitely. The DOC only abandoned

that policy when it settled a class-action brought on

behalf of CCU inmates alleging that their CCU

conditions violated their Eighth and Fourteenth

Amendment rights. The DOC began implementing

changes pursuant to the settlement agreement in

December 2019.

The conditions of death row solitary confinement

have been well-documented by this Court. Before the

26 See 61 Pa. Cons. Stat. § 101 (setting “Prisons and Parole Code”

as the reference title for Title 61).

27 In 1998, the Pennsylvania legislature passed Senate Bill 252

(Pr. No. 253), now known as Section 4303. Section 3 of the Act of

June 18, 1998, Providing for a Procedure and Method of

Execution; and Making Repeals, P.L. 80. Williams was placed in

solitary confinement in 1993.

28 In November 1982, the DOC began segregating individuals

entenced to death from the general population on its own accord—

not pursuant to state statute. See Peterkin v. Jeffes, 661 F. Supp.

895, 902 (E.D. Pa. 1987), aff’d in part and vacated in part, 855

F.2d 1021 (3d Cir. 1988).

29 61 Pa.C.S. § 4303 (2009).

30 Porter v. Pa. Dep’t of Corrs., 974 F.3d 431, 445 n.9 (3d Cir. 2020)

(quoting Clark v. Beard, 918 A.2d 155, 160 (Pa. Commw. Ct.

2007)).

10a

2019 settlement agreement, prisoners in the CCU lived

in cells no larger than seven feet by twelve feet.31 They

were forced to “spend[] the overwhelming majority of

[their] time in [their] cell[s], including eating [their]

meals alone.”32 They were not allowed to leave their

cells for more than ten hours per week, including for

basic hygiene and work duty and were only permitted

to exercise in “cages . . . no more than twice the size of

a typical CCU cell.”33 When permitted to leave their

cells, CCU prisoners were “handcuffed from behind, or

handcuffed in front using a belt and tether” and they

were forced to “undergo a visual strip search.”34 Their

“[j]ob assignments [we]re limited to janitorial duties on

the CCU block, and performed in confined small spaces

under close observation and monitoring.” 35 Prisoners in

the CCU were “precluded from participation in adult

basic

education

courses,

vocational

learning

opportunities or the chance to work towards a high

school diploma” and were not permitted to attend

group religious services.36

In 2014, the United States Department of

Justice (DOJ) published a comprehensive report, in the

form of a letter, following its investigation of the

Pennsylvania DOC’s use of solitary confinement on

individuals with serious mental illnesses, including

individuals placed in the CCU.37 In addition to facts we

set forth in Porter,38 the DOJ investigation found that

31 Porter, 974 F.3d at 436.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

11a

all individuals in solitary confinement had to spend

almost their entire day confined to cells that are less

than 100 square feet. Most cells lacked exterior

windows, and therefore any natural light. Although the

lighting inside the cell could be dimmed, it could “never

be turned off, even at night,” and “the noise level

c[ould] be high . . . because of yelling and banging of

neighboring prisoners.”39 The DOJ also found that “the

air quality [wa]s often poor because of inadequate

sanitation and ventilation[,]” which was of particular

concern when individuals smeared feces on the wall;

“it[] [was] often left like that for days and the entire pod

[would] reek[] of shit and make[] you want to vomit.” 40

In addition to physical conditions, the DOJ

reported on the DOC’s practices with respect to

individuals with serious mental illness held in solitary

confinement. The DOJ condemned the DOC’s punitive

responses to prisoners exhibiting symptoms of mental

illness, noting that the DOC “respond[s] to behaviors

that signal mental illness not by seeking to ensure that

the inmate received adequate mental health

treatment, but instead by imposing additional

restrictions on the conditions of the prisoners’

confinement.” 41 This included “us[ing] housing

assignments within the solitary confinement units as a

way to punish prisoners for conduct related to their

mental illness,” confining prisoners to their cells 24/7,

denying them bedding material and/or running water,

38 974 F.3d at 436–37.

39 J.A. 070.

40 Id.

41 J.A. 071.

12a

and taking away their clothes.42 The DOC also resorted

to the unnecessary use of full-body restraints—often

for more than seven hours at a time.

The DOJ found that the DOC’s subjection of

prisoners with serious mental illness to prolonged

periods of solitary confinement was often unjustifiably

harsh and resulted in serious harm. The DOJ warned

the Secretary that pursuant to Supreme Court

precedent set forth in Estelle v. Gamble43 and Farmer

v. Brennan,44 the DOC’s use of solitary confinement

violated the Eighth Amendment.45 Specifically, it

informed the Secretary that the DOC’s use of solitary

confinement for extended periods of time on

individuals with serious mental illness “constitutes

precisely the type of indifference to excessive risk of

harm the Eighth Amendment prohibits.”46 The DOJ’s

analysis emphasized that individuals with serious

mental illness suffer more during prolonged periods of

solitary confinement than individuals who do not have

this preexisting condition.47 After referencing this

Court’s pronouncement that “[t]he touchstone [of an

42 J.A. 071–72. Perhaps the most repugnant response to

manifestations of individuals’ mental illness detailed in the report

was one individual’s allegation that when he created a makeshift

noose and “stood on his toilet preparing to kill himself, a group of

officers encouraged him . . . . According to the prisoner, the officers

told him that they ‘wanted to see his feet dangling,’ and chanted,

‘1. . . 2 . . . 3 . . . kill yourself,’ repeatedly.” J.A. 072.

43 429 U.S. 97 (1976).

44 511 U.S. 825 (1994).

45 J.A. 064–65 (first citing Estelle, 429 U.S. at 102; and then citing

Farmer, 511 at 843).

46 J.A. 065.

13a

Eighth Amendment violation] is the health of the

inmate,”48 the DOJ found the manner in which the

DOC used solitary confinement on prisoners with

serious mental illness violated the Eighth Amendment

because it: (1) resulted in serious “harm or an

unreasonable risk of harm,” (2) interfered with the

DOC’s “ability to provide adequate mental health

treatment,” and (3) constituted “unjustifiably harsh”

and “dehumanizing” conditions.49

The DOJ reached a similar conclusion when

considering the DOC’s use of solitary confinement

under Title II of the ADA. Specifically, the DOJ found

that the DOC’s practices violated Title II because the

DOC: (1) unnecessarily segregated individuals with

disabilities and failed to modify its policies and

practices; (2) failed to individually assess individuals to

determine whether placement in segregation was

appropriate or justified; and (3) unnecessarily denied

opportunities for individuals to engage in and benefit

from programming.

J.A. 070 (“[T]he particular use of solitary confinement on

inmates with SMI in the PDOC system, when examined under the

totality of the circumstances, includes unjustifiably harsh

conditions, even though some of these conditions, standing alone,

might not be inappropriate in other circumstances.”).

48 J.A. 068 (quoting Young v. Quinlan, 960 F.2d 351, 364 (3d Cir.

1992)).

49 J.A. 068–70 (emphasis omitted). At the outset of the report, the

DOJ recognized that the DOC had begun reforming the way in

which it uses solitary confinement on prisoners with serious

mental illness but noted that despite “important improvements,

much more work needs to be done to ensure sustained compliance

with the mandates of the Constitution and the ADA.” J.A. 063.

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II.

Procedural Background

Williams filed a pro se complaint against the

Secretary,

asserting

Eighth

and

Fourteenth

Amendment claims under 42 U.S.C. § 1983, and a

claim under Title II of the ADA. He requested nominal,

compensatory, and punitive damages under the Eighth

Amendment and the ADA based upon his continued

placement in solitary confinement “in light of his

history of depression and suicidal ideation.”50

The District Court sua sponte dismissed Williams’

Fourteenth Amendment claim pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii).51

Thereafter, Defendants filed a motion for

summary judgment, which the District Court

granted.52 The District Court determined that,

pursuant to Porter v. Pennsylvania Department of

Corrections,53 the Secretary was entitled to qualified

immunity on Williams’ Eighth Amendment claim. The

District Court also granted summary judgment on

50 J.A. 009–10.

51 The District Court also sua sponte dismissed Williams’ official

capacity claim under §1983 and his individual capacity claim

under Title II of the ADA. It determined that Williams’ official

capacity claim under § 1983 was barred by the Eleventh

Amendment but allowed Williams’ claim against Secretary Wetzel

in his individual capacity to proceed. The District Court also held

that because Title II of the ADA prohibits only a “public entity”

from discriminating against people with disabilities, Williams’

official-capacity ADA claim was tantamount to a claim against the

DOC.

52 Prior to this motion, the District Court permitted the defendants

to depose Williams, but did not allow for other discovery.

53 974 F.3d at 431.

15a

Williams’ ADA claim. It determined that, although

there was a factual dispute as to whether Williams had

a disability under the ADA, he could not establish the

intentional discrimination necessary to obtain

compensatory damages.

III.

Jurisdiction and Standard of Review

We have jurisdiction over Williams’ appeal

under 28 U.S.C. § 1291, and we conduct plenary review

of the grant of summary judgment.54 Summary

judgment should be granted only where the record

shows that “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.”55 We draw all reasonable inferences

in the non-movant’s favor.56

IV.

Discussion

Williams argues that the Secretary was not entitled

to qualified immunity from Williams’ Eighth

Amendment allegations. He contends that the

Secretary should have known that continuing to hold

someone with his mental and medical history in

solitary confinement violated a clearly established

right. Defendants, on the other hand, dispute whether

the Secretary had adequate notice to defeat the shield

of qualified immunity, as well as whether the Secretary

54 See Williams v. Sec. Pa. Dep’t of Corrs. (“Williams I”), 848 F.3d

549, 557 (3d Cir. 2017).

55 Fed. R. Civ. P. 56(a).

56 Williams I, 848 F.3d at 557.

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knew of Williams’ mental problems.57 Williams further

argues that the District Court erred in granting

summary judgment on his ADA claim. Finally,

Williams argues that the District Court erred when,

pursuant to § 1915(e)(2)(b)(ii), it sua sponte dismissed

with prejudice his Fourteenth Amendment claim for

failure to state a claim. We will address these

arguments in turn.

A. Eighth Amendment Claim

Williams claims that the Secretary forced him to

languish in solitary confinement, despite knowledge of

his preexisting serious mental frailty, in deliberate

indifference to his health and safety, in violation of his

Eighth Amendment rights.58 In response, the Secretary

only argues that he is entitled to qualified immunity

because Williams’ right was not clearly established.

At summary judgment, we view the facts in the light most

favorable to Williams. Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d

Cir. 2000). Accordingly, on this record, we must assume that

Williams had a preexisting serious mental illness when placed in

solitary confinement and notified the DOC of his preexisting

serious mental illness.

58 To prove deliberate indifference under the Eighth Amendment,

a plaintiff must establish that “(1) he had a serious medical need,

(2) the defendants were deliberately indifferent to that need; and

(3) the deliberate indifference caused harm to the plaintiff.” See

Durham v. Kelley, 82 F.4th 217, 229 (3d Cir. 2023) (describing

what a litigant must plead at the motion to dismiss phase). A

prison official is deliberately indifferent pursuant to the Eighth

Amendment if the official knows an incarcerated person faces “a

substantial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.

17a

The Secretary does not dispute that Williams’ Eighth

Amendment right to be free from cruel and unusual

punishment was violated.59 Accordingly, that

argument is forfeited.60

1. Qualified Immunity

“Under the doctrine of qualified immunity, ‘officials

performing discretionary functions generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory

or constitutional rights.’”61 To determine whether a

government official is entitled to qualified immunity,

we must ask whether (1) the facts put forward by the

plaintiff show a violation of a constitutional right and

whether (2) the right was clearly established at the

time of the alleged misconduct.62 We need not “tackle

these steps in sequential order.”63 Because the

Secretary does not dispute that Williams’ Eighth

Amendment right was violated, we need only consider

59 He would have been hard-pressed to make such an argument,

given that Porter recognized that “prolonged solitary confinement

. . . poses a substantial risk of serious psychological and physical

harm.” 974 F.3d at 441–43.

60 See Barna v. Board of School Directors of Panther Valley

School District, 877 F.3d 136, 146 (3d Cir. 2017)

(‘“[F]orfeiture is the failure to make the timely assertion of a right,’

an example of which is an inadvertent failure to raise an

argument.”) (quoting United States v. Olano, 507 U.S. 725, 733

(1993)).

61 Williams I, 848 F.3d at 557 (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)).

62 Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021).

63 Williams I, 848 F.3d at 557–58 (first citing Pearson v. Callahan,

555 U.S. 223, 234–36 (2009); and then citing Werkheiser v. Pocono

Twp., 780 F.3d 172, 176 (3d Cir. 2015)).

18a

whether the right was clearly established at the

relevant time.

To determine whether the right was clearly

established, we examine the state of the relevant law

when the violation allegedly occurred.64 A right is

clearly established where existing precedent has

“placed the statutory or constitutional question beyond

debate.”65 “[G]eneral statements of the law are not

inherently incapable of giving fair and clear warning .

. . .”66 Moreover, the facts in existing precedent “need

not perfectly match” the circumstances of the case at

hand.67 The “ultimate question” in the qualified

immunity analysis “is whether the defendant had fair

warning that his conduct deprived his victim of a

constitutional right.”68 “[O]fficials can still be on notice

that their conduct violates established law even in

novel factual circumstances”69 because “a general

constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific

conduct in question, even though ‘the very action in

question has [not] previously been held unlawful.’” 70

Therefore, common sense may dictate that a

constitutional violation has occurred where a

constitutional violation is “so obvious” that a

64 Williams I, 848 F.3d at 570.

Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011) (first citing

Anderson v. Creighton, 483 U.S. 635, 640 (1987); and then citing

Malley v. Briggs, 475 U.S. 335, 341 (1986)).

66 Lanier, 520 U.S. at 271.

67 Williams I, 848 F.3d at 570.

68 Schneder v. Smith, 653 F.3d 313, 329 (3d Cir. 2011) (quoting

Hope v. Pelzer, 536 U.S. 730, 740 (2002) (internal quotation marks

omitted)).

69 Hope, 536 U.S. at 741.

70 Id. (quoting Lanier, 520 U.S. at 270–71) (alteration in original).

19a

government official has “fair warning” that the conduct

is unconstitutional.71

Given the nearly infinite combination of factors

that can underlie a given claim, requiring an exact

factual match with prior decisions would be

tantamount to morphing qualified immunity into

absolute immunity because no plaintiff could ever

identify a sufficiently identical precedent.72 We do not,

therefore, limit our focus to whether we have

previously decided cases with identical facts and

circumstances. However, before we can turn to relevant

caselaw, we must appropriately “frame the right” 73

that Williams alleges was violated, “with all reasonable

inferences drawn in” his favor, as the nonmovant.74

The Supreme Court has cautioned against framing the

right at “a high level of generality.” 75 Instead, we must

“define the right allegedly violated at the appropriate

level of specificity”76 to determine “whether the

violative nature of particular conduct is clearly

established.”77 This inquiry should consider the specific

context of the case, not simply a broad proposition.78

71 Id.

72 See Williams I, 848 F.3d at 570 (“Requiring that precedent and

subsequent disputes rest on identical facts would license state

actors to violate constitutional rights with impunity simply by

varying some irrelevant aspect of constitutional violations.”).

73 Peroza-Benitez, 994 F.3d at 165.

74 Mack v. Yost, 63 F.4th 211, 228 (3d Cir. 2023) (first citing

Peroza-Benitez, 994 F.3d at 165–66; and then citing Tolan v.

Cotton, 572 U.S. 650, 657 (2014)).

75 Ashcroft, 563 U.S. at 742.

76 Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing

Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006)).

77 Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)

(quoting Ashcroft, 563 U.S. at 742).

78 See Peroza-Benitez, 994 F.3d at 165.

20a

The District Court appears to have defined the

right at issue here as a death row prisoner’s Eighth

Amendment right not to be held in solitary

confinement. It then determined that pursuant to our

prior decision in Porter, Williams’ alleged right had not

been clearly established. However, in its analysis, the

District Court failed to frame the right with the

“appropriate level of specificity”79 because it ignored

the relevance of Williams’ preexisting serious mental

illness and the Secretary’s knowledge of it, along with

the lack of a penological justification for placing and

continuing to hold Williams in solitary confinement.

There is evidence in the record that Williams was

diagnosed with depression and suicidal ideation before

he began his twenty-six years in solitary confinement.

There is also evidence that he told a DOC psychologist

that he “had a history of suicidal ideation and [had

been] involuntarily committed to [the] Philadelphia

Psychiatric Center when [he] was 13 years old.”80 It is

undisputed that, at some point during his

incarceration, he was placed on the DOC’s Mental

Health Roster with a “C” designation, which is reserved

for individuals requiring psychiatric treatment.81

Viewing the facts in the light most favorable to

Williams, we also consider that declarations from

Williams’ doctors, documenting his childhood

psychiatric hospitalization, “impaired cognition,”

Peroza-Benitez 994 F.3d at 165 (quoting Sharp, 669 F.3d at

159).

80 J.A. 252.

The DOC’s classification of Williams’s mental illness is a

relevant—but not dispositive—factor when analyzing whether his

mental illness was serious. And the record raises a genuine

dispute of material fact about whether Williams had a known

preexisting serious mental illness for the reasons provided above.

21a

“emotional lability,” and deficiencies in “reasoning

capacity,” were provided to the DOC.82

Although the Secretary argues that the record

does not support Williams’ assertion that the Secretary

knew or should have known about his preexisting

serious mental illness, the record does raise a genuine

dispute of fact as to the DOC’s knowledge that

Williams was seriously mentally ill. Where “issues of

fact may preclude a definitive finding on the question

of whether the plaintiff’s rights have been violated, the

court must nonetheless decide whether the right at

issue was clearly established.”83 Therefore, we must

decide whether the right of a death row prisoner, with

a known preexisting serious mental illness not to be

placed and held in prolonged solitary confinement—

without

penological

justification—was

clearly

established at the relevant time. We hold that it was.

2. Individuals with a Known History of Serious

Mental Illness Have a Clearly Established

Right to Not Be Subjected to Prolonged Solitary

Confinement Without Penological Justification

It is well established that prison officials may

not act with “deliberate indifference” to a person’s

health or safety,84 and that we may infer the existence

of this subjective state of mind from the fact that the

risk of harm at issue is obvious, though ignored.85

Further, this Court has long held that in assessing the

82 J.A. 52–53.

83 Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 n.4 (3d

Cir. 2015).

84 Hudson v. McMillian, 503 U.S. 1, 8 (1992).

85 Farmer, 511 U.S. at 842.

22a

conditions of segregated housing units, the “touchstone

is the health of … inmate[s],” including their mental

health.86 Undoubtedly, holding a prisoner with a

known preexisting serious mental illness in solitary

confinement for a protracted period without

penological justification would result in “unnecessary

and wanton infliction of pain.”87 This violation is so

obvious that the Supreme Court and Third Circuit

cases gave respondents fair notice that this treatment

of Williams was unlawful.

Our precedents leave no room for doubt that

individuals with a known history of serious mental

illness have a clearly established right not to be

subjected to prolonged solitary confinement without

penological justification, regardless of their sentence.

In Young, one of the many cases the DOJ report relied

upon, we held that the district court had erred by

granting summary judgment to the defendants on

Young’s Eighth Amendment claims because Young had

raised a material dispute as to the conditions of his

solitary confinement.88 In so doing, we clarified that

when evaluating Eighth Amendment allegations

concerning segregated housing units, “[t]he touchstone

is the health of the inmate.” 89 Further, we explained

that “[t]he duration and conditions of segregated

confinement cannot be ignored in deciding whether

such confinement meets constitutional standards.” 90

Highly relevant to this analysis is that prisons may not

86 Young, 960 F.2d at 364.

87 Whitley v. Albers, 475 U.S. 312, 320 (1986).

88 Young, 960 F.2d at 363–64.

89 Id. at 364.

90 Id. (first citing Hutto v. Finney, 437 U.S. 678, 686–87 (1978);

and then citing Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir.

1984)).

23a

punish in a way that “threatens the physical and

mental health of prisoners.”91 Indeed, after recognizing

that segregated detention cannot be “foul, inhuman or

totally without penological justification,”92 we

explained that Young’s preexisting physical illness

made his solitary confinement even more inhumane,93

just as Williams’ preexisting mental illness did here.

We have recently explained that Young

“recognized that determining the constitutionality of

prison conditions is a heavily fact-specific inquiry,

where the particular characteristics of the prisoner

raising the challenge are taken into consideration.” 94

Relying on Supreme Court precedent, we held, in

Clark, that someone with a known preexisting serious

mental illness has a clearly established right since at

least 2016 not to be held in prolonged solitary

confinement.95 There, the plaintiff’s allegations that

“he was kept in conditions of almost complete isolation

Id. at 685–86 (“Courts . . . have universally condemned

conditions of segregation inimicable [sic] to the inmate occupants’

physical health, and, in some instances, have also considered

conditions that jeopardize the mental health or stability of the

inmates so confined. . . . While the prison administration may

punish, it may not do so in a manner that threatens the physical

and mental health of prisoners.”).

92 Id.

93 Id. at 365 (noting the fact that Young’s HIV-positive status made

his unsanitary conditions “all the more revolting” because he was

“more susceptible to infection and disease”).

94 Clark, 55 F.4th at 179, 181–82, 184–85.

95 See id.97 854 F.3d 209 (3d Cir. 2017),

98 Clark, 55 F.4th at 186–87 (citing Ind. Pro. & Advoc. Servs.

Comm’n v. Comm’r, Ind. Dep’t of Corr., No. 1:08-cv-01317- TWPMJD, 2012 WL 6738517, at *23 (S.D. Ind. Dec. 31, 2012) (placing

seriously mentally ill inmates in solitary confinement threatened

permanent injury and violated the Eighth Amendment); Jones “El

v. Berge, 164 F. Supp. 2d. 1096, 1101–02 (W.D. Wis. 2001)

24a

for seven months by officials who knew him to be

seriously mentally ill” were sufficient to allege an

Eighth Amendment violation.96 In so holding, we drew

from Palakovic v. Wetzel, 97 and a “robust consensus of

[district court] decisions” holding unconstitutional the

practice of “assigning mentally ill prisoners to solitary

confinement.” 98 In reaching this conclusion, we noted

that Clark had adequately alleged deliberate

indifference because he claimed that, like in Palakovic,

the DOC defendants knew he was seriously mentally

ill and knew that placing him in solitary confinement

would cause him severe harm.99 In Palakovic, a

plaintiff, “diagnosed with anumber of serious mental

(granting injunctive relief where conditions of solitary

confinement “can be devastating” to mentally ill individuals

housed in supermax prison); Madrid v. Gomez, 889 F. Supp. 1146,

1265–66 (N.D. Cal. 1995) (concluding that mentally ill inmates “in

the SHU is the mental equivalent of putting an asthmatic in a

place with little air to breathe’ and therefore unconstitutional”);

Coleman v. Wilson, 912 F. Supp. 1282, 1320–21 (E.D. Cal. 1995)

(concluding that segregating inmates with serious mental

disorders violates their Eighth Amendment rights); Casey v.

Lewis, 834 F. Supp. 1477, 1549–50 (D. Ariz. 1993) (holding the

practice of assigning seriously mentally ill inmates to segregated

housing “despite their knowledge of the harm” constitutes an

“appalling” Eighth Amendment violation); Langley v. Coughlin,

715 F. Supp. 522, 540 (S.D.N.Y. 1989) (holding viable claim that

prison officials” failure to “screen out” those inmates that “by

virtue of their mental condition, are likely to be severely and

adversely affected by placement there”)).

99 Clark, 55 F.4th at 180–81.

25a

disorders,”100 committed suicide after he was

repeatedly placed in solitary confinement for “multiple

30-day stints” during a thirteen month period.101

There, we held that allegations that “prison officials

knew the conditions of confinement “were inhumane

for [Palakovic] in light of his mental illness,”102 yet

continued to subject him to severe isolation, were

“more than sufficient” to state an Eighth Amendment

claim.103

We then determined in Clark that qualified

immunity did not apply because “the right of a prisoner

known to be seriously mentally ill to not be placed in

solitary confinement for an extended period of time by

prison officials who were aware of, but disregarded, the

risk of lasting harm posed by such conditions,” was well

established at the time of the violative conduct.104 Even

though Clark concerned violations that began in

January 2016, we recognized that the constitutional

right was “long protected by Eighth Amendment

jurisprudence,” 105 including Young, Farmer, and

Hope.106 We determined that Third Circuit and

Supreme Court precedent supported our conclusion

that Clark’s right wasclearly established, and found

100 854 F.3d at 216.

101 Id. at 217, 225.

102 Clark, 55 F.4th at 179 (quoting Palakovic, 854 F.3d at 225).

103 Palakovic, 854 F.3d at 226. Because Palakovic did not consider

qualified immunity, we had no occasion to determine whether the

Eighth Amendment right was clearly established at the time of

the violative conduct, which began in 2011, id., and do not rely on

this case in concluding that Williams’ right was clearly

established as of at least 2014.

104 Clark, 55 F.4th at 182.

105 Id. at 181 (emphasis added).

106 Id. at 183–85.

26a

that the defendant had fair notice that he was violating

Clark’s right in light of our precedents, prison policy,

state statute, and a federal lawsuit that survived a

motion to dismiss.107 Here, we rely on much of the same

law that we did in Clark and determine that the

Secretary had fair notice that Williams’s conditions of

confinement violated the Eighth Amendment because

controlling precedent clearly established the right of a

death row prisoner with a known preexisting serious

mental illness not to be held in prolonged solitary

confinement without penological justification.

This conclusion is easily buttressed by the

comprehensive 2014 DOJ report, which—relying on

Farmer, Hope, Young, and other binding precedent—

warned the Secretary that the DOC’s practices of

knowingly holding seriously mentally ill prisoners in

solitary confinement for extended periods of time was

cruel and unusual.108 The DOJ concluded a months’

long investigation and determined that the DOC’s “use

of a harsh form of solitary confinement for extended

periods of time on hundreds of prisoners with [serious

mental illness]/[intellectual disability] constitutes

precisely the type of indifference to excessive risk of

harm the Eighth Amendment prohibits.”109 The DOJ

then advised the DOC—and Secretary Wetzel

specifically—of its findings, including its detailed

analysis of how the DOC’s practices violated Supreme

Court and Third Circuit precedent.

107 Id. at 180–88.

108 Id. at 180.

109 J.A. 065 (emphasis added).

27a

We have recognized that a variety of sources can

be considered when evaluating whether officials

received fair warning that their conduct was

unlawful.110 The Supreme Court recognized in Hope v.

Pelzer that DOJ reports like this one should not be

ignored when determining whether officials had fair

notice that they were violating clearly established

law.111 In Hope, the Supreme Court held that the DOJ’s

warning to the Alabama Department of Corrections

that its practice of shackling individuals to a hitching

post was unconstitutional supported the determination

that it was clearly established that such practices

violated the law.112 Even though there was “nothing in

the record indicating that the DOJ’s [report was]

communicated to [the individual defendants],” the

Court nonetheless relied on it because other DOJ

communications with the Alabama Department of

Corrections “len[t] support to the view that reasonable

officials in the ADOC should have realized” the alleged

treatment violated the Eighth Amendment.113

The 1994 DOJ report in Hope was not nearly as

authoritative and informative as the letter that the

DOJ sent to the Secretary here. The 1994 DOJ report

110 Clark v. Coupe, 55 F.4th 167, 188 (3d Cir. 2022) (“Both Supreme

Court and this Court’s precedents consider district court cases,

prison regulations, and state statutes in determining whether

officials received fair warning that their conduct was

unreasonable.”).

111 536 U.S. at 744–46.

112 Id. at 744.

113 Id. at 745.

28a

stated that “[t]he hitching pole policy is inappropriate

and violates constitutional standards.” 114 In three

paragraphs, it explained that the hitching pole “should

never be used as punishment,” that the staff does not

comply with its own policies regarding the hitching

pole, and that the dehumanizing practice is

“potentially dangerous.”115 However, unlike the DOJ

report here, the 1994 report did not rely upon, nor cite

to cases or external sources to support its conclusions.

In contrast, the 2014 DOJ report, which was

twenty five-pages long and sent directly to the

Secretary, was replete with citations to Supreme Court

and Third Circuit cases, case studies, and statistics to

support its conclusion that the DOC’s solitary

confinement of individuals with serious mental illness

violated the law. More than ten pages of the report

analyzed and explained how the DOC’s specific

practices violated the Eighth Amendment. In Hope, the

DOJ’s

conclusory

constitutional

determination

buttressed the Court’s conclusion that the law was

clearly established. The 2014 DOJ report serves the

114 U.S. Dep’t of Justice, Notice of Findings from Investigation of

Easterling Correctional Facility (Alio, Alabama), inc. Review of

Medical Care at Easterling Correctional Center June 1994 (Mar.

27, 1995) at 3, https://clearinghouse.net/case/535/. The DOJ also

noted at the outset of the document that it found “significant

constitutional violations in two major areas.” Id. at 1. It explained

that “[i]n order to bring Easterling up to constitutional standards,

[it] recommend[ed] implementation of . . . remedial measures,”

including “[c]eas[ing] use of the ‘security bar’ or any other form of

corporal punishment or improper restraint including, but not

limited to: shackling inmates to fences, posts, rails, cell bars, or

other stationary objects.” Id. at 4–5.

115 Id. at 3.

29a

same function and provides the same notice as it did in

Hope.116

Relying on Hope, the 2014 DOJ report explained

precisely why the DOC’s use of solitary confinement on

prisoners with

serious

mental

illness

was

unconstitutional under controlling precedent:

By subjecting prisoners with [serious mental

illness (“SMI”)] to prolonged periods of

solitary confinement under harsh conditions

that are not necessary for legitimate securityrelated reasons, [the DOC] exposes them to an

excessive and obvious risk of serious harm. See

Farmer, 511 U.S. at 828; Hope v. Pelzer, 536 U.S.

730, 738-745 (2002) (holding that prison officials

show deliberate indifference where they

disregard obvious risks to prisoner safety).

Moreover, our expert-consultants observed that

as a direct result of these practices, prisoners

with SMI have suffered serious psychological

and physical harms, including psychosis,

trauma, severe depression, serious self injury,

and suicide. Cf Young v. Quinlan, 960 F.2d 351,

364 (3d Cir. 1992) (“The touchstone is the health

of the inmate. While the prison administration

may punish, it must not do so in a manner that

threatens the physical and mental health of

prisoners.”).117

116 Id. at 745-46 (“Even if there might once have been a question

regarding the constitutionality of this practice, the Eleventh

Circuit precedent . . . as well as the DOJ report condemning the

practice, put a reasonable officer on notice that the use of the

hitching post under the circumstances alleged by Hope was

unlawful.”).

117. J.A. 068.

30a

The DOJ went on to explain that the manner in

which the [DOC] used solitary confinement posed an

“excessive risk to the mental health of prisoners” and

“violated the Eighth Amendment.”118 First, it

specifically stated that “lengthy periods of solitary

confinement involve[d] conditions that [the DOJ’s]

expert-consultants found subjected prisoners to harm

or an unreasonable risk of harm and contribute[d] to

the Constitutional violation.” 119 Undoubtedly, this

included individuals like Williams, who had a history

of serious mental illness and had nevertheless been

held in solitary confinement for over twenty years.

Second, the DOJ found that “the manner in which

[]DOC use[d] solitary confinement interfere[d] with its

ability to provide adequate mental health treatment to

prisoners with SMI and contribute[d] to the

Constitutional violation.”120 The Pennsylvania DOC’s

use of solitary confinement likely also interfered with

Williams’ treatment. This record supports the

conclusion that Williams’ already-fragile mental

health deteriorated to the point that he attempted

suicide while held in solitary confinement. Although

the Secretary notes that Williams was offered Prozac

after his suicide attempt, the 2014 DOJ report makes

clear that “[a]ppropriate mental health treatment for

prisoners with SMI should involve much more than

medication.”121 And third, citing the Supreme Court’s

118 Id. (citing Peterkin v. Jeffes, 855 F.2d 1021, 1024-25 (3d

Cir, 1988)).

119 Id. (emphasis omitted).

120 J.A. 069 (emphasis omitted).

121 J.A. 069.

31a

decision in Wilson v. Seiter,122 the 2014 DOJ report

recognized that “unjustifiably harsh conditions often

attend[ed] [DOC]’s use of prolonged solitary

confinement on prisoners with SMI. In combination,

these conditions [we]re dehumanizing and cruel and

contribute[d] to the Constitutional violation.”123 It

further explained how the DOC’s use of solitary

confinement on prisoners with serious mental illness

resulted in harm, noting, for example, that “more than

70 percent of documented suicide attempts between

January 1, 2012 and May 31, 2013 occurred in solitary

confinement units.” 124

The significance of the 2014 DOJ report simply

cannot be ignored. The Secretary was directly informed

that under binding precedent, placing someone with a

known history of serious mental illness in solitary

confinement for a prolonged period of time without

penological justification clearly was unlawful.125 We

therefore conclude that the Secretary personally had

fair warning by 2014—at the very latest—that

Williams’s conditions of confinement clearly violated

basic principles of Eighth Amendment established by

controlling precedent.126 And that personal notice

501 U.S. 294, 304 (1991) (holding that conditions of

confinement violate the Eighth Amendment when they combine to

“have a mutually enforcing effect that produces the deprivation of

a single, identifiable human need”).

123 J.A. 070 (emphasis omitted).

124 J.A. 064 (emphasis added).

125 This notice is similar to that in Clark, in which we determined

that a federal lawsuit surviving a motion to dismiss gave “prison

officials . . . direct notice that their conduct regarding solitary

confinement potentially violated the Eighth Amendment,” and

supported our conclusion that Clark alleged the violation of a

clearly established law. 55 F.4th at 186 (emphasis added).

122

32a

buttresses our holding that a reasonable person in the

Secretary’s shoes would have known that it clearly

violated basic principles of Eighth Amendment law

established by controlling precedent—to hold a death

row prisoner with a known history of serious mental

illness in solitary confinement for a prolonged period of

time without penological justification.

The Secretary argues that Porter forecloses this

conclusion, but that argument fails. Porter, like Clark

and Palakovic, also concerned prolonged solitary

confinement, but it only concerned people of sound

mind when first placed in solitary confinement. In

Porter, we held that keeping a prisoner sentenced to

death in solitary confinement for thirty-three years

violated the Eighth Amendment, however, qualified

immunity applied because “[w]e ha[d] not found Eighth

Amendment cases with sufficiently similar fact

patterns.”127

Although

Palakovic

“certainly

acknowledge[d] the dangers of solitary confinement,”

we “distinguishe[d] Palakovic from Porter’s case” on

the basis “that the plaintiff was not on death row and

had specific known mental health issues preassignment to solitary confinement.”128 Therefore, it

was not yet clearly established that the Eighth

Amendment prohibited placing a person without a

known preexisting serious mental illness in prolonged

126 In Busanet v. Wetzel, No. CV 21-4286, 2023 WL 5003573, at

*10–14 (E.D. Pa. Aug. 4, 2023), the court—on similar facts—

concluded that the right of an individual on death row with

preexisting mental illness not to be held in prolonged solitary

confinement was clearly established. We find Judge McHugh’s

reasoning to be sound, and echo many of the same principles

throughout this opinion.

127 974 F.3d at 450.

128 Id. (emphasis added).

33a

solitary confinement while on death row prior to our

deciding Porter in 2020.129

The Secretary argues that based on Porter,

Williams’ sentence—and not his health—controls the

analysis. Porter indeed recognized that the sentence an

individual serves may be relevant, but the touchstone”

of an Eighth Amendment analysis has long been, and

remains, “the health of the inmate[,]”130 not his

sentence. Just as the known preexisting mental illness

pre-assignment to solitary confinement was a

distinguishing factor in Porter, it is a distinguishing

factor here. As Porter recognized, this distinction is

important. Our precedents have made clear that

solitary

confinement

can

“cause

cognitive

131

disturbances” after “even a few days”

in a person

without a preexisting mental illness; obviously, such

prolonged confinement is particularly cruel for a

person with “severely compromised mental health.”132

In other words, Porter certainly suggests that being on

death row may be relevant to an Eighth Amendment

analysis in some contexts. It is not possible, however,

to read Porter as standing for the proposition that the

Eighth Amendment rights for individuals with known

preexisting serious mental illness turn on the nature of

their sentences—a non-health related concern.

Next, the Secretary argues that respondents did

not violate clearly established law because the DOC

purportedly kept Williams in solitary confinement

pursuant to an internal policy interpreting 61

129 See id. at 450.

130 Young, 960 F.2d at 364.

131 Williams I, 848 F.3d at 562 (citation omitted).

132 Clark, 55 F.4th at 181. (alterations in original).

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Pennsylvania Consolidated Statute, Section 4303. In

doing so, the Secretary gives tremendous weight to an

internal DOC policy that is actually irrelevant. The

Secretary begins by noting that Williams was initially

placed in solitary confinement pursuant to Section

4303. That is simply wrong.133 Williams was initially

placed in solitary confinement in 1993, and Section

4303—directing placement in solitary confinement for

death-row prisoners—did not go into effect until five

years later.134 In other words, although the DOC knew

that Williams had a preexisting serious mental illness,

Williams nevertheless languished in solitary

confinement after the expiration of his death warrant,

not because of Section 4303, but because of the DOC

policy that remained in effect until 2019, when the

DOC settled the Eighth Amendment and ADA claims

brought against it.

According to the Secretary, he is entitled to

qualified immunity because keeping Williams in

solitary confinement for twenty-six years was

“consistent with the [DOC] policy in effect during the

relevant period of time.”135 The sole support for this

conclusory assertion is a citation to Williams I, in

which we stated that the DOC’s interpretation of

133 See supra Section I.b., n. 34, 35.

134 1998 Pa. Legis. Serv. Act 1998-80 (West).

135 Appellee Br. 21. Defendants do not argue that Section 4303

prohibited them from removing death-row prisoners, like

Williams, from solitary confinement after their death warrant had

expired. Nor could they. The Pennsylvania Commonwealth Court

has held that pursuant to Section 4303, “[o]nce [a death] warrant

has expired . . . . ‘it is entirely a matter of the Department’s

discretion where to house an [incarcerated person].’” Porter, 974

F.3d at 445 n.9 (quoting Clark v. Beard, 918 A.2d at 160).

Therefore, after 2005, when Williams’ warrant expired, the DOC

had discretion as to where to hold him.

35a

Section 4303, which resulted in the DOC’s continued

confinement of individuals on death row, was “not

without support.”136

The relevant passages from Williams I are

inapposite, as that opinion addressed alleged violations

of procedural due process rights, not cruel and unusual

punishment.137 Moreover, in Williams I, we had no

occasion to consider whether the DOC’s indiscriminate

practice of keeping people with known preexisting

serious mental illness in solitary confinement

indefinitely without penological justification was

reasonable because the plaintiff did not allege that he

had a known preexisting serious mental illness. And

absent individualized evidence demonstrating that

prison officials kept an inmate in solitary confinement

for a legitimate penological purpose, DOC’s blanket

policy of keeping people with known preexisting

serious mental illness in solitary confinement solely

because they were sentenced to death, even in the

absence of an active death warrant, amounted to “foul”

and “inhuman” “conditions of confinement . . . without

penological

justification,”138

classic

Eighth

136 Williams I, 848 F.3d at 571.

137 See id. at 557–76. Even if Williams I

did concern cruel and

unusual punishment, it would still be inapplicable. In Williams I,

we concluded that the DOC’s policy was “only relevant to our

qualified immunity analysis because the case law . . . did not

adequately inform [the defendants] that the policy ran counter to

Plaintiffs’ protected liberty interests.” As explained, that is not the

case here.

138 Clark, 55 F.4th at 183 (quoting Young, 960 F.2d at 364).

36a

Amendment violation.139 Moreover, we are not willing

to accept the argument that one can escape liability by

relying upon a policy that s/he knows to be

unconstitutional.140 Given the 2014 DOJ report, the

Secretary had to know that any policy requiring an

individual with a known preexisting serious mental

illness to be confined in solitary without a legitimate

penological justification was contrary to law.141

Accordingly, we hold that individuals with a

known history of serious mental illness have a clearly

established right not to be subjected to prolonged,

indefinite solitary confinement—without penological

justification—by an official who was aware of that

history and the risks that solitary confinement pose to

someone with those health conditions. To hold

otherwise would fail in the face of Eighth Amendment

139 The cruelty of the DOC’s policy is exacerbated by the practice

of keeping lights in solitary cells on twenty-four hours a day. We

cannot think of any legitimate penological purpose for this—

especially given the impact it could have on someone with serious

mental illness; and the Secretary offers none.

140 Just as we do not “equate policy violations with constitutional

violations,” McKenna v. City of Philadelphia, 582 F.3d 447, 461

(3d Cir. 2009), adherence to policy does not compel the conclusion

that no constitutional violation occurred.

141 Moreover, Secretary Wetzel readily admits that he “is familiar

with the work of [researcher] Dr. [Craig] Haney, which sets forth

at length the harmful effects of solitary confinement.” Johnson v.

Wetzel, 209 F. Supp. 3d 766, 779 (M.D. Pa. 2016). In light of this

research, he acknowledges that “‘long term’ solitary confinement

‘certainly could’ have negative effects on mental health.” Id.

37a

jurisprudence.142 Given this record, the right at issue

was clearly established.

The dissent improperly truncates our holding,

and then criticizes the subsequent vagueness created

by its own truncation. Despite the dissent’s assertion

to the contrary, we do not hold that “prison officials [are

prohibited] from housing a mentally ill inmate in

solitary confinement for long periods of time.”143

Indeed, our holding is limited to the specific allegations

of this appeal from the grant of summary judgment and

is as we have just stated in the preceding paragraph.

Lest there be any confusion, we reiterate that we

hold “that individuals with a known history of serious

mental illness have a clearly established right not to be

subjected

prolonged,

indefinite

solitary

confinement—without penological justification—by an

official who was aware of that history and the risks that

solitary confinement pose to someone with those serious

health conditions.”144 That is nearly identical to the

142 As previously stated, Williams also argues that the Secretary

is not entitled to qualified immunity because he was deliberately

indifferent to Williams’ health and safety by knowingly subjecting

him to twenty-six years in solitary confinement, despite his

awareness of the serious risks such confinement posed. The

District Court did not address this argument, and we need not

reach it because we determine that the Secretary is not entitled to

qualified immunity since there is a material issue of fact as to

whether Williams put forth enough evidence to show a violation of

a constitutional right, and the right at issue was clearly

established.

143 Dissent at 2 (quoting Clark v. Coupe, 55 F. 4th at 167)

(internal quotation marks omitted) (describing how the lower

court framed the right before clarifying the right to be more

specific).

144 Op. 33-34 (emphasis added).

38a

holding in Clark v. Coupe,145 and it is hardly a novel or

surprising proposition. In Clark, we framed the clearly

established right at issue as: “the right of a prisoner

known to be seriously mentally ill to not be placed in

solitary confinement for an extended period of time by

prison officials who were aware of, but disregarded, the

risk of lasting harm posed by such conditions.”146

Relying on much of the same binding precedent Clark

did,147 our current holding merely clarifies that the

clearly established right in Clark extends to

individuals on death row.

Having clarified our holding, and again

highlighted the many cases we rely upon to conclude

that the right was clearly established here, the

remainder of the dissent’s criticisms about our use of

the 2014 DOJ report have little force. As we noted, the

2014 DOJ report concisely packaged much of the

relevant and binding law and delivered it to the

defendant’s doorstep.148 In disparaging the relevance of

the DOJ report to our analysis, our dissenting

colleague misses the point. The DOJ letter addressed

to Secretary Wetzel is not important because it had the

force of legal precedent. We agree that it obviously did

145 55 F.4th 168 at 182.

146 Id.

147 Clark relied, inter alia, on Hope v. Pelzer, 536 U.S. 730 (2002),

Farmer v. Brennan, 511 U.S. 825 (1994), Palakovic v. Wetzel, 854

F.3d 209 (3d Cir. 2017), and Young v. Quinlan, 960 F.2d 351 (3d

Cir. 1992), in concluding that the right at issue was clearly

established. We do the same.

148 Op. at 24. Notably, the dissent relies upon the hallowed

precedent of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803), to suggest that our holding somehow violates the

separation of powers, ignores the obvious principle that the courts,

and not the executive branch, determine what is legal precedent.

39a

not and could not have had the force of legal precedent.

That is simply not the point, and it is not why the DOJ

report that was on the record here is so important.

Rather, it is important because it directly informed the

Secretary that the practice of solitary confinement that

had been investigated was a violation of the Eighth

Amendment based upon the judicial decisions cited in

the letter. The dissent would prefer we ignore that

notice, but binding precedent and the fact that

Secretary Wetzel was personally informed of the

constitutional violation establish its relevance. And

that personal notice simply buttresses our conclusion

that controlling precedent clearly established that the

conditions of Williams’s confinement violated the

Eighth Amendment.

Moreover, our use of the DOJ report here is no

more in tension with Marbury v. Madison than the

Supreme Court’s use of the analogous DOJ report in

Hope v. Pelzer. In both cases, the DOJ report buttresses

the conclusion that “a reasonable person would have

known” of the Eighth Amendment violation.149

Following Lanier, which established the “fair warning”

standard, Hope makes clear that for purposes of

qualified immunity, the “salient question” is whether

the state of the law gives defendants “fair warning”

See Dissent at 5.

Ironically, while expressing concern that the Majority

disregards the role of the courts as set forth in Marbury v.

Madison, our dissenting colleague relies on a single judge

concurrence that disparages Supreme Court jurisprudence.

Dissent at 7 (citing United States v. Grant, 9 F.4th 186, 201– 07

(3d Cir. 2021) (en banc) (Hardiman, J., concurring) (criticizing the

Supreme Court for “stray[ing] far from the text and original

meaning of the Eighth Amendment”).

149 Hope, 536 U.S. at 744 (citing Harlow, 457 U.S. at 818).

40a

that their alleged conduct was unconstitutional.150

Following that precedent, the Supreme Court explicitly

held that “in light of binding Eleventh Circuit

precedent, an Alabama Department of Corrections

(ADOC) regulation, and a DOJ report informing the

ADOC of the constitutional infirmity in its use of the

hitching post . . . the respondents’ conduct violated

‘clearly established statutory or constitutional rights of

which a reasonable person would have known.’”151

It should not be a controversial or novel

proposition that a personalized report setting forth

binding, applicable case law, and detailing how a

specific defendant is systematically violating the

Eighth Amendment, is highly relevant to a finding that

such defendant had “fair notice.” We simply cannot

agree with our dissenting colleague’s belief that the

defendants should nevertheless be wrapped in the

protective cloak of qualified immunity after such “fair

and clear warning” of the clearly established law.152

Finally, the dissent complains that even if we

are correct in concluding that individuals with a known

serious mental illness have the right not to be held in

prolonged, indefinite solitary confinement, the case law

upon which we rely does not provide adequate notice

with regard to individuals on death row.153 But as

already explained, the health of the incarcerated

person is what drives the Eighth Amendment analysis,

not the type of sentence.154 Moreover, as early as the

150 Id. at 741.

Id. at 741–42 (citing Harlow, 457 U.S. at 818) (emphasis

added).

152 Lanier, 520 U.S. 259, 271 (1997).

153 See Dissent at [5].

154 See Op. at 31.

151

41a

19th century, the Supreme Court has recognized that

solitary confinement is a severe and additional

punishment even for people on death row.155

A. Fourteenth Amendment

The District Court assumed Williams was bringing

a substantive due process claim under the Fourteenth

Amendment and concluded that Williams’ conditionsof-confinement claim was only cognizable under the

Eighth Amendment. We review de novo a district

court’s sua sponte dismissal of a claim under 28 U.S.C.

§ 1915(e)(2), and we review a district court’s decision

not to grant leave to amend for abuse of discretion.156

Because Williams was proceeding pro se, his

complaint should have been liberally construed as

asserting a Fourteenth Amendment procedural due

process claim.157 Williams’ allegations that he was

subjected to “automatic placement in indefinite solitary

confinement” and “without either individually

assessing the risk he may actually and objectively pose

for others . . . or otherwise justifying the need for

isolations [sic],” indicates that he was alleging that he

had been kept in solitary confinement without

meaningful review or an opportunity to be heard.158

155 See In re Medley, 134 U.S. 160, 167–71 (1890). Although the

Eighth Amendment was not considered in Medley, the Court

concluded without hesitation that solitary confinement is “an

additional punishment of the most important and painful

character” that violates the ex post facto provision of the

Constitution when added to a sentence after the offense has been

committed because it increases the punishment. Id. at 171.

156 Dooley v. Wetzel, 957 F.3d 366, 373, 376 (3d Cir. 2020).

157 See Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021).

158 J.A. 048–49.

42a

Nonetheless, at the time of Williams’

confinement, the due process rights of an active deathrow prisoner had not been clearly established. The

Court in Williams I held that individuals on death row

who had been granted resentencing hearings had a

liberty interest that prohibited the state from housing

them in solitary confinement on death row without

“regular and meaningful review of their continued

placement.”159 However, we did not reach a conclusion

as to whether the due process clause of the Fourteenth

Amendment limited the State’s ability to subject

prisoners with active death row sentences to prolonged

solitary confinement.160 Similarly, in Porter we did not

reach a determination as to whether prisoners with

active death row sentences had a procedural due

process claim.161 Given that we have not determined

whether an active death-row prisoner has a procedural

due process interest in avoiding continued solitary

confinement, the DOC is entitled to qualified immunity

on this claim.

C. Claim Under the Americans with

Disabilities Act (ADA)

The DOC does not escape liability under the

ADA because it placed and held Williams in solitary

159 848 F.3d at 576 (emphasis in original).

160 See id. at 552 n.2 (stating that the Court “take[s] no position on

whether any inherent risk posed by inmates whose death

sentences are still active and viable is sufficient to raise a

presumption that their continued confinement on death row is

justifiable”).

161 See Porter, 974 F.3d at 438 n.2 (reasoning that it need not

decide whether a prisoner on death row who has “not been granted

[a] resentencing[] hearing and vacatur ha[s] a procedural due

process interest in avoiding continued solitary confinement”

(citing Williams I, 848 F.3d at 552 n.2)).

43a

confinement pursuant to a since-revoked DOC policy.

The District Court acknowledged that there was a

material dispute of fact as to whether the Secretary

knew Williams suffered from serious mental illness.

Drawing all inferences in favor of Williams, we must

assume that the Secretary was aware of Williams’

serious mental illness. Therefore, under the ADA, the

DOC had an obligation to modify its practices to

ameliorate the harms of prolonged solitary

confinement

Williams,

alternatively,

demonstrate

that

the

modifications

would

fundamentally alter the nature of the “service,

program or activity.” 162 The DOC failed to do either of

those things. Additionally, we find that Williams has

stated a claim of deliberate indifference under the ADA

where—viewing the facts in the light most favorable to

Williams—the Secretary knew Williams had a

preexisting serious mental illness, was aware of the

risk of prisoner safety, and failed to act despite this

knowledge.

1. The Elements of an ADA Claim

To bring a claim under the ADA, Williams “must

demonstrate: (1) he is a qualified individual; (2) with a

disability; (3) [who] was excluded from participation in

or denied the benefits of the services, programs, or

activities of a public entity, or was subjected to

discrimination by any such entity; (4) by reason of his

disability.”163 The ADA defines “disability” as “a

physical or mental impairment that substantially

162 28 C.F.R. § 35.130(b)(7).

163 Haberle v. Troxell, 885 F.3d 170, 178–79 (3d Cir. 2018) (quoting

Bowers v. Nat’l Collegiate Athletic Ass’n, 475, F.3d 524, 533 n.32

(3d Cir. 2007)) (alterations in original).

44a

limits one or more major life activities of such

individual,” “a record of such an impairment,” or “being

regarded as having such an impairment.” 164 “[M]ental

illness qualifies as a disability under” the ADA.165 The

District Court correctly concluded that there is an issue

of material fact as to whether the DOC knew that

Williams had a serious mental illness, and therefore

knew that he had a disability under the ADA.

Nevertheless, the Secretary now argues that

Williams’ ADA claim fails because he was not placed in

solitary confinement “by reason of” his disability but

instead because of his death sentence.166 Initially, we

note that the DOC forfeited this argument by not

raising it before the District Court.167 However, even if

the DOC had raised this argument, it would have

failed, because it misconstrues Williams’ claim.

Williams does not argue that he was placed in solitary

confinement “by reason of” his disability. Instead, he

argues that, considering his disability, the DOC failed

to “take certain pro-active measures to avoid the

discrimination proscribed by Title II [of the ADA].”168

We agree.

Our decision in Furgess v. Pennsylvania

Department of Corrections 169 is instructive. There, we

considered whether Furgess, an incarcerated person

164 42 U.S.C. § 12102(1).

165 Disability Rts. N.J., Inc. v. Comm’r, N.J. Dep’t of Hum. Servs.,

796 F.3d 293, 301 (3d Cir. 2015); 28 C.F.R. § 35.108(d)(2)(iii).

166 Appellee Br. 30 (emphasis omitted).

167 Barna, 877 F.3d at 146 (citing United States v. Olano, 507

U.S. 725, 733 (1993).

168 Chisholm v. McManimon, 275 F.3d 315, 325 (3d Cir. 2001).

169 933 F.3d 285 (3d Cir. 2019).

45a

with a disability, had suffered discrimination “by

reason of his disability.” 170 Furgess, who had received

the accommodation of an accessible shower stall in

general population, was placed in the Restrictive

Housing Unit (RHU), “which lacked accessible shower

facilities.”171 In response to Furgess’ disability

discrimination claim, the DOC argued that Furgess

was “deprived of a shower because his own misconduct

landed him in the RHU, which lacked accessible

shower facilities, not because the [DOC] intentionally

discriminated against him on the basis of his

disability.”172 We disagreed, and determined that the

DOC had misconstrued the causation element under

the ADA. We explained: “the reason why Furgess was

housed in the RHU is irrelevant . . . . [A] prison’s

obligation to comply with the ADA . . . does not

disappear when inmates are placed in a segregated

housing unit, regardless of the reason for which they

are housed there.”173

This same reasoning applies to Williams’ claim

under the ADA. Although Williams was placed in

solitary confinement pursuant to a prison policy, the

DOC’s obligation to comply with the ADA did not

disappear because of his death sentence. One who

violates the ADA (or any other statute) cannot escape

liability merely because the violation is a result a state

policy that conflicts with federal law. Indeed, a

contrary holding would erode the protections afforded

by remedial statutes such as the ADA, as the rights

they confer would depend on the vagaries of

170 Id. at 291.

171 Id.

172 Id.

173 Id.

46a

governmental policies. Just as the DOC’s failure to

provide accessible showers in the RHU was not by

reason of Furgess’ alleged misconduct, the DOC’s

failure to provide Williams with reasonable

accommodations for his disability was not by reason of

his death sentence.

The DOC has an obligation to make “reasonable

modifications” to “policies, practices, or procedures”

where modifications are necessary to avoid

discrimination on the basis of a disability.174 Assuming

that Williams had a known mental illness, the DOC

had an obligation to modify its practices to ameliorate

the harms of prolonged solitary confinement on

Williams. The only way the DOC could avoid this

responsibility is by “demonstrat[ing] that making the

modifications would fundamentally alter the nature of

the service, program, or activity.”175 The record is

devoid of evidence that providing Williams with

accommodations would have fundamentally altered

the DOC’s services, programs, or activities.

Moreover, the DOC’s argument that no ADA

violation exists because Williams’ treatment is the

same as that of nondisabled death-row prisoners

reflects a “lack of appreciation for one of the chief

purposes of the ADA.” 176 The purpose of the ADA is to

ensure that persons with disabilities can participate

equally in society.177 Because people with and without

disabilities may have different needs, there are

174 28 C.F.R. § 35.130(b)(7)(i).

175 Id.

176 Anderson v. Franklin Inst., 185 F. Supp. 3d 628, 645 (E.D.Pa.

2016).

177 42 U.S.C.A. § 12101(a)(7).

47a

instances in which providing equal treatment will not

achieve the ADA’s goals of equal opportunity. As Judge

McHugh stated in Anderson v. Franklin Institute, “a

facially neutral policy can still result in

discrimination.”178 “[A] person with a disability may be

the victim of discrimination precisely because she did

not receive disparate treatment when she needed

accommodation.”179 And as the Ninth Circuit has

recognized, because facially neutral policies may

“disparately impact people with disabilities,” “a public

entity may be required to make reasonable

modifications” to these policies.180

Given the factual dispute as to whether the DOC

knew that Williams had a serious mental illness and

because the DOC failed to make modifications or

accommodations

Williams’

conditions

confinement, Williams’ claim under the ADA survives

summary judgment.

2. Compensatory Damages

178 185 F. Supp. 3d at 645. That decision explained, “[t]he ADA

was promulgated in part to level the playing field for disabled

individuals . . . . Stated differently, if disabled persons protected

under the ADA were similarly situated to all other persons, there

would be no need for the ADA in the first place.” Id.

179 Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d

1134, 1136 (N.D. Cal. 1998) (citation omitted).

180 Payan v. L.A. Cmty. Coll. Dist., 11 F. 4th 729, 738 (9th Cir.

2021). We are not persuaded by the DOC’s argument that,

pursuant to our precedent in Disability Rights, 796 F.3d at 306,

Williams must have pointed to evidence that he was “denied some

benefit that a public entity has extended to nondisabled people.”

Appellee Br. 31. Although in Disability Rights, we held as much,

that was in the context of a claim that the appellant had been

denied “public services, programs, and activities.” 796 F.3d at 301.

In contrast, Williams argues that he was discriminated against

because of his disability.

48a

Compensatory damages, as Williams seeks here,

are unavailable “absent proof of ‘intentional

discrimination,’”181 which requires at least deliberate

indifference.182 To prove deliberate indifference, the (1)

“defendant must actually have known or been aware of

the excessive risk to [prisoner] safety”183 and (2) failed

to act despite that knowledge.184

The District Court determined that Williams failed

to put forth evidence that the DOC acted with

deliberate indifference. We disagree. The evidence here

is uncontradicted as to the second factor: by neither

removing Williams from solitary confinement for

twenty-six years, nor making modifications to his

conditions of confinement, the DOC failed to act.

Assuming that Williams had a preexisting serious

mental illness that the DOC was aware of, the only

question is whether there is a genuine factual dispute

as to whether the DOC actually knew that prolonged

solitary confinement caused an “excessive risk” to

prisoner safety.185

We have already explained that the record includes

evidence that suggests the DOC knew that prolonged

solitary confinement causes an excessive risk of harm

to prisoners with serious mental illness. For instance,

181 Haberle, 885 F.3d at 181 (quoting S.H. ex rel. Durrell v. Lower

Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013)).

182 S.H. ex rel. Durrell, 729 F.3d at 263.

183 Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).

184 Haberle, 885 F.3d at 181 (quoting S.H. ex rel. Durell, 729 F.3d

at 265).

185 See S.H. ex. Rel. Durrell, 729 F.3d at 266 (“The relevant inquiry

is knowledge.”).

49a

the 2014 DOJ report concluded that the DOC was

violating the ADA by (1) automatically placing

individuals with serious mental illness in solitary

confinement without an individualized assessment of

their mental health needs and the appropriateness of

such placement; and (2) failing to ensure that prisoners

with serious mental illness placed in solitary

confinement for reasons unrelated to their disabilities

could “participate in and benefit from prison activities,

programs, and services.”186 That letter also provided

the DOC with “narrowly tailored” remedies it could

implement to ensure its compliance with obligations

under the ADA.187

The DOC’s contention that Williams improperly

relied on a “generalized history” of ADA violations is

unavailing. Although we have explained that “a

generalized history of civil rights violations . . . would

not necessarily demonstrate ‘a pattern’”188 of violations

sufficient to prove deliberate indifference, the DOJ’s

report does far more than provide a “generalized

history” of ADA violations. It documents the DOC’s

pattern and practice of placing individuals with

preexisting mental illness in prolonged solitary

confinement, and explains that even where “solitary

confinement is necessary,” the DOC fails “to adjust the

conditions of solitary confinement to avoid harm to the

prisoner.”189 That report—coupled with the robust body

186 J.A. 081–82.

187 J.A. 083.

188 Haberle, 885 F.3d at 182 (quoting Beers-Capitol, 256 F.3d at

137).

50a

of caselaw and reports on the harms caused to

prisoners with preexisting mental illness190—creates a

genuine issue of material fact as to whether the DOC

was deliberately indifferent in subjecting Williams to

prolonged

solitary

confinement

under

the

circumstances alleged here. Accordingly, we will vacate

the District Court’s grant of summary judgment on

Williams’ ADA claim and remand for further

proceedings.

Conclusion

For the above reasons, we will affirm the District

Court’s order dismissing Williams’ Fourteenth

Amendment claim, and we will vacate the District

Court’s order granting summary judgment for the

Secretary on Williams’ Eighth Amendment and ADA

claims and remand for further proceedings consistent

with this opinion.

189 J.A. 080. This situation is much more akin to that in Haberle v.

Borough of Nazareth, 936 F.3d 138 (3d Cir. 2019), in which we

found that deliberate indifference had been plausibly pled in

allegations that a police department was aware of a pattern of

police encounters causing harm to people with mental disabilities

but failed to adopt an accommodation policy. 936 F.3d at 141–42.

190 See supra Part IV.A.

51a

U.S. Department of Justice

Civil Rights Division

Assistant Attorney General

950 Pennsylvania Ave., NW-RFK

Washington, DC 20530

The Honorable Tom Corbett

Governor’s Office

225 Main Capitol Building

Harrisburg, PA 17120

Re: Investigation of the Pennsylvania Department of

Corrections’ Use of Solitary Confinement on Prisoners

with Serious Mental Illness and/or Intellectual

Disabilities

Dear Governor Corbett:

The Civil Rights Division has completed its

investigation of the Pennsylvania Department of

Corrections’ (“PDOC”) use of solitary confinement on

prisoners with serious mental illness (“SMI”) and

intellectual disabilities (“ID”). The investigation was

conducted pursuant to the Civil Rights of

Institutionalized Persons Act (“CRIPA”), 42 U.S.C. §

1997. CRIPA authorizes the Department of Justice to

seek equitable relief where conditions in state

correctional facilities violate the rights of prisoners

protected by the Constitution or laws of the United

States.

We opened this systemwide investigation after

having found that one of Pennsylvania’s prisoners—the

State Correction Institution at Cresson—routinely

52a

subjected

prisoners

with

SMI/ID1 to

solitary

confinement under conditions that violated their

constitutional rights and their rights under Title II of

the Americans with Disabilities Act (“ADA”), 42 U.S.C

§§ 12131- 12134. We notified you of both our findings

concerning Cresson and our decision to conduct a

systemwide investigation in a letter dated May 31,

2013

(“Cresson

Findings

Letter”).

See

www.justice.gov/crt/about/spl/documents/cresson_findi

ngs_5-31-13.pdf.

Our systemwide investigation found that the

Commonwealth uses solitary confinement in ways that

violate the rights of prisoners with SMI/ID. However,

it is important to note that in the months since we

issued our Cresson Findings Letter, the overall number

of prisoners with SMI/ID that PDOC subjects to

solitary confinement has gone down. Moreover,

PDOC’s leadership had been developing new policies

that, if adopted and implemented, would further

reduce the number of prisoners with SMI/ID in solitary

and improve mental health services for prisoners with

SMI. Nonetheless, much more needs to be done.

Throughout the PDOC system, hundreds of prisoners

with SMI/ID remain in solitary confinement for months

and sometimes years, with devastating consequences

to their mental health, in violation of their rights under

the Eighth Amendment and the ADA.

In our review, we looked at the totality of the

conditions confronting prisoners in solitary and the

presence or absence of mechanisms to mitigate harms

arising from these conditions. To reach out

investigative findings, it was necessary to assess the

1 We use the shorthand “SMI/ID” in this letter, but note that, while

there is some overlap, most prisoners with SMI do not have ID and

vice versa.

53a

conditions in which prisoners were held, the practices

of PDOC, the duration of confinement, the decisions

made relating to security reasons and penological

concerns, the available programs and services, and the

precise harms found by our expert-consultants. We

concluded that these conditions collectively violated

the constitutional and statutory rights of prisoners

with serious mental illness and intellectual

disabilities2.

Throughout our investigation, Secretary John

Wetzel and his staff provided us with exceptional

cooperation. We look forward to collaborating with

them in the coming months to fashion an agreement

between the United States and the Commonwealth

that effectively addresses our shared concerns.

Summary of Findings

PDOC has begun reforming the way in which it uses

solitary confinement on prisoners with SMI/ID. In

recent months, PDOC has implemented new

procedures for the disciplinary process. IT has also

implemented new protocols for the treatment of

prisoners with SMI in certain specialized housing

units. These reforms have led to a reduction in the

number of prisoners with SMI subjected to solitary

confinement. Moreover, PDCO is in the process of

drafting policies geared toward further reducing the

number of prisoners with SMI/ID housed in isolation

units and improving mental health care for prisoners

with SMI. While the Commonwealth has made

2 In making these findings, the Department of Justice does not

intend to suggest that every use of solitary confinement on persons

with SMI/ID is a per se violation of the Eighth Amendment or the

ADA.

54a

important improvements, much more work needs to be

done to ensure sustained compliance with the

mandates of the Constitution and the ADA. Below we

summarize our factual determinations and our ongoing

concerns:

•

The manner in which PDOC subjects

prisoners with SMI to prolonged periods of

solitary confinement involves conditions

that are often unjustifiably harsh and in

which these prisoners routinely have

difficulty obtaining adequate mental

health care:

In the one-year period between May 2012 and May

2013, PDOC confined more than 1,000 prisoners on its

active mental health roster in solitary confinement for

more than 90 days.3 Nearly 250 of those prisoners were

in solitary confinement for more than a year. There are

still roughly 115 prisoners PDOC identifies as having

SMI who are in solitary. Our expert-consultants have

concluded that the 115 number grossly understates the

number of prisoners with SMI currently subjected to

solitary confinement, estimating that there are

3 PDOC separates its active mental health roster into two

categories: (1) those prisoners designated as having “the most

serious need for mental health services;” and (2) those designated

as having a “present mental health need.”

4 PDOC has newly revised its active mental health roster. It

designates only those in the first category as having SMI,

However, after reviewing medical records and interviewing

prisoners, we and our expert-consultants in mental health have

concluded that a very significant number of the prisoners

currently designated as not having SMI and thus are assigned to

PDOC's second category indeed have SMI. We also identified other

prisoners with SMI who are left off PDOC's active mental health

roster entirely.

55a

hundreds more.4 The conditions that prisoners with

SMI face while in solitary confinement are harsh. They

are routinely confined to their cells for 23 hours a day,

denied adequate mental health care, and subjected to

punitive behavior modification plans, forced idleness

and loneliness, unsettling nose and stench, harassment

by correctional officers, and the excessive use of fullbody restraints.

•

The manner in which PDOC uses solitary

confinement on prisoners with SMI results

in serious harm:

PDOC uses isolation on prisoners with SMI in a

way that exacerbates their mental illness and leads

to serious psychological and physiological harms.

Indeed, our expert-consultants interviewed and

reviewed the records of more than two dozen

prisoners whom they concluded were seriously

harmed by solitary confinement in various ways,

including severe mental deterioration, psychotic

decompensation, and acts of self-harm. For

instance, even though only a small fraction of the

prisoners at the prisoners we toured were housed in

solitary confinement units, most of the suicide

attempts occurred in those units. Specifically, more

than 70% of the documented suicide attempts

between January 1, 2012 and May 31, 2013

occurred in the solitary confinement units.

•

Numerous

systemic

deficiencies

contribute to PDOC’s extensive use of

solitary confinement on prisoners with

SMI

56a

PDOC routinely resorts to using prolonged

solitary confinement on those with SMI primarily

because systemic deficiencies interfere with its

ability to provide adequate mental health

treatment. When we initiated our investigation in

May, prisoners with SMI were placed in solitary

confinement at twice the rate of prisoners without

SMI. Too often, instead of providing appropriate

mental health care, PDOC’s response to mental

illness is to warehouse vulnerable prisoners in

solitary confinement cells.

•

The manner in which PDOC uses solitary

confinement also harms prisoners with ID:

PDOC uses solitary confinement on a significant

number of prisoners with ID, as defined below.

Prisoners with ID are especially susceptible to the

harmful effects of PDOC’s use of solitary confinement.

They have limited coping mechanisms and their

mental health is prone to deteriorating when subjected

to the stressors present in PDOC’s solitary

confinement units. We believe that PDOC is not

adequately addressing such concerns.

•

The manner in which PDOC uses solitary

confinement often discriminates against

prisoners with SMI/ID:

PDOC often unnecessarily and inappropriately

places prisoners in solitary confinement because they

have SMI/ID. Isolating prisoners on the basis of their

SMI/ID without adequate justification constitutes

impermissible discrimination and unjustifiably denies

when access to services and programs provided to most

other prisoners. PDOC has filed to make reasonable

57a

modifications to its policies, procedures, and practices

to meet the needs of prisoners with SMI/ID in the most

integrated setting appropriate to their needs and

consistent with legitimate safety requirements.

Instead it has routinely elected to segregate these

prisoners unnecessarily in its solitary confinement

unites.

PDOC’s solitary confinement practices violate the

Eighth Amendment’s prohibition against “cruel and

unusual punishments.” Embodying “broad and

idealistic concepts of dignity, civilized standards,

humanity, and decency.” Estelle v. Gamble, 429 U.S.

97, 102 (1976), the Amendment prohibits officials from

disregarding conditions of confinement that subject

prisoners to an excessive risk of harm. Farmer v.

Brennan, 511 U.S. 825, 843 (1994), PDOC’s use of a

harsh form of solitary confinement for extended periods

of time on hundreds of prisoners with SMI/ID

constitutes precisely the type of indifference to

excessive risk of harm the Eighth Amendment

prohibits.

The practices described in this letter also violate

the ADA. The ADA prohibits prisons from

discriminating against prisoners with disabilities. 42

U.S.C. § 12132; 28 C.F.R. § 35.130(a). It generally

obligates prisons to provide qualified prisoners with

disabilities the opportunity to participate in and

benefit from prison services, programs, and activities,

and absent legitimate justification, to do so in the most

integrated setting appropriate to individual prisoners

with disabilities. See 28 C.F.R. §§ 35.130(a),(d), 35.150,

35.152; Pa. Dep’t of Corr.v. Yeskey, 524 U.S. 206, 210

(1998); Chisolm v. McManimon, 275 F.3d 315, 324-25

58a

(3rd Cir. 2001). PDOC uses solitary confinement in a

way that is at odds with these requirements.

II.

Methodology,

Background

Definitions,

and

A. Methodology

In August 2013, we conducted on-site inspections of

six PDOC prisons.5 We conducted the tours with the

assistance of two expert-consultants in mental health

treatment, suicide prevention, and the effects of

solitary confinement. We

interviewed PDOC

leadership, administrative staff members, security

staff members, medical and mental health staff

members, and prisoners. We reviewed documents

related to the use of solitary confinement to all 26 of

the Commonwealth prisons before, during, and after

our site visits. These include policies and

Commonwealth’s prisons before, during, and after our

site visits. These include policies and procedures,

medical and mental health records, cell histories,

incident reports, disciplinary reports, suicide reviews,

and unit logs. We also observed prisoners in various

settings throughout the facilities. Consistent with our

commitment to providing technical assistance and

conducting a transparent investigation, we conducted

exit conferences after each of our on-site inspections.

5 One of the prisons we toured—SCI Greene—is the facility using

solitary confinement on the greatest number of prisoners by far,

We also toured SCI-Fayette, SCI-Smithfield, SCI-Rockview, SCIMuncy, and SCI-Dallas.

59a

B. Definitions

Terms we use throughout this letter are defined as

follows:

•

“Isolation” or “solitary confinement” means

the state of being confined to one’s cell for

approximately 23 hours per day or more.

•

“Solitary confinement unit” or “isolation

unit” means a unit where either all or most of

those housed in the unit are subjected to solitary

confinement.

•

“Serious mental illness” or “SMI” means “a

substantial disorder of thought or mood that

significantly impairs judgment, behavior, [or]

capacity to recognize reality or cope with the

ordinary demands of life.” Pa. Dep’t of Corr.,

Access to Mental Health Care, Policy 13.8.1.,

Section 2-Delivery of Mental Health Services §

A.1.a (2) (2013) (we note that for this letter we

have adopted PDOC’s own definition of SMI).

•

“Intellectual disability” or “ID” means a

disability characterized by both a significant

impairment in cognitive functioning, and

deficits in adaptive functioning, such as

communication,

reasoning,

social

skills,

personal care, and organizing school or work

tasks. See A,. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders 33 (5th

ed. 2013). An intellectual disability begins before

the age of 22 and is chronic. As a substantial

number of inmates may have some lesser form

of ID, for the purposes of this letter, ID will refer

60a

to having a highly significant impairment of

functioning, generally indicated by an IQ score

of 70 or below, that would be adversely impacted

by prolonged placement in a solitary

confinement unit.

C. Background

PDOC operates 26 facilities, housing approximately

50,000 prisoners. PDOC subjects at least 2,800 of those

prisoners—roughly 6% of the system’s prisoners—to

solitary confinement.

Roughly 2,400 of those in solitary are housed in

Restricted Housing Units (“RHU”). Prisoners are

housed in RHUs for violating prisons rules

(disciplinary segregation) or to protect the security of

the prison or the individual prisoner (administrative

segregation). Prisoners in the RHU are usually

confined to their cells for roughly 23 hours a day.

Another 400 prisoners are housed in one of the

following types of solitary confinement units: a unit of

Psychiatric Observation Cells (“POC”) (for prisoners

who are mentally decompensating to the point of being

considered a danger to themselves, other prisoners,

and/or property); the Capital Case Unit (“CCU”) (for

prisoners who have been sentences to death); the

Special Management Unit (“SMU”) (for prisoners who

6 Until this summer, prisoners in the CCU were confined to their

cells for roughly 23 hours a day. In recent months CCU prisoners

have been permitted one additional hour of recreation time per

day. Prisoners in POC are confined to their cells for approximately

24 hours per day. Most prisoners housed in SMUs and STGMUs

spend at least 23 hours a day in their cells. A small minority of the

prisoners housed in SMUs and STGMUs are allowed a few

additional hours of out-of-cell time per week after progressing to

the least-restrictive part of these units' step-down programs.

61a

exhibit behavior that presents a risk to the orderly

running of the prison); and the Secure Threat Group

Management Unit (“STGMU”) (for prisoners who pose

a risk to the prison because of their affiliation with, and

active involvement in, gangs).6

Until recently, PDOC used solitary confinement on

many of the approximately 70 prisoners housed in its

Secure Special Needs Units (“SSNUs”). The SSNUs

were used to house prisoners with SMI who had a

history of disciplinary infractions. Within the last

couple of months, PDOC has eliminated its SSNUs,

replacing them with the Secure Residential Treatment

Units (“SRTU’s”). PDOC has represented to us that it

does not intent to use solitary confinement on any of

the prisoners housed in its new SRTUs.

III.

Discussion

A. PDOC has begun to address the way in

which it used solitary confinement on

prisoners with SMI and to improve its

mental health care practices.

In the recent months, PDOC has been reforming its

solitary confinement practices. Currently. PDOC is

preparing draft policies that, if correctly implemented,

may reduce the number of prisoners with SMI

subjected to prolonged isolation and improve the

mental health care for this population. Moreover,

during the summer, PDOC started to implement

changes even though policies have not been finalized or

adopted. Those changes include: (1) involving mental

health staff members in the disciplinary process when

the prisoners has SMI; (2) training a significant

number of staff members in crisis intervention; (3)

62a

converting SSNUs that functioned like isolation units

into SRTUs that provide more treatment, out-of-cell

activities, and positive incentives; and (4) training and

using peer specialists in some PDOC facilities to

provide additional support to prisoners with SMI

housed in general population.

These initial reform efforts are already producing

positive results. Over a three month period this

summer, PDOC reduced the number of prisoners with

SMI in solitary confinement by well over 100.7 Our

expert-consultants found that these changes have

dramatically improved the mental health of those

removed from solitary. For example, one prisoner who

had spent many months in an RHU and is now housed

in an SRTU told us that “he came to hate himself” when

he was in solitary, and that he now feels much better

because he can more regularly get out of his cell. He

also noted that he has greatly benefited from group

therapy in the SRTU, where he can talk to prisoners

facing similar difficulties. Line-staff members have

also noted the positive changes. For instance, a staff

psychologist commented on how she has recently seen

As we noted in the Summary of Findings section, PDOC has

identified roughly 115 prisoners with SMI presently housed in

solitary confinement units. Our expert-consultants have

concluded that this number grossly underestimates the actual

number of prisoners with SMI/ID still in solitary.

8 In December 2013, PDOC officials reported to us progress they

felt had been made since our August inspections. These efforts

included beginning to review serious injurious behaviors,

establishing suicide prevention committees at each facility,

accelerating crisis intervention training schedules for officers, and

drafting a proposal to have an independent organization conduct

a segregation reduction project on all prisoners regardless of their

vulnerabilities.

63a

a marked reduction in negative behaviors by prisoners

as out-of-cell activities have increased.

Although progress has been made, there is still

work to be done. Many of our major findings concerning

the way in which Cresson misused solitary

confinement still apply with equal force to the PDOC

system as a whole. In the following sections, we discuss

these serious, ongoing problems with the manner in

which PDOC uses solitary confinement on prisoners

with SMI. We also discuss the systemic failures that

remain in place and contribute to PDOC’s excessive

reliance on solitary confinement as a control tool.8

B. The manner in which PDOC continues to

use solitary confinement on prisoners with

SMI violates their rights under the Eighth

Amendment to the U.S. Constitution

Despite the progress that has been made in recent

months, we find that the manner in which PDOC

continues to use solitary confinement on prisoners with

SMI violates the Eighth Amendment’s prohibition

against punishments that are “cruel and unusual.”

There is no static test for determining whether

conditions are “cruel and unusual.” Instead the Eighth

Amendment “must draw its meaning from the evolving

standards of decency that mark the progress of a

maturing society.” Rhodes v. Chapman, 452 U.S. 337,

346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101

(1958)).

By subjecting prisoners with SMI to prolonged

periods of solitary confinement under harsh conditions

that are not necessary for legitimate security-related

reasons, PDOC exposes them to an excessive and

64a

obvious risk of serious harm. See Farmer, 511 U.S. at

828; Hope v. Pelzer, 536 U.S. 730, 738-745 (2002)

(holding that prison officials show deliberate

indifference where they disregard obvious risk to

prisoner safety). Moreover, our expert-consultants

observed that as a direct result of these practices,

prisoners with SMI have suffered serious psychological

and physical harms, including psychosis, trauma,

severe depression, serious self-injury, and suicide. Cf.

Young v. Quinlan, 960 F.2d 351, 364 (3rd Circuit 1992)

(“The touchstone is the health of the inmate. While the

prison administration may punish, it must not do so in

a manner that threatens the physical and mental

health of the prisoners.”)

1. PDOC subjects prisoners with SMI to

prolonged periods of solitary confinement

under harsh conditions where they

routinely

have

difficulty

obtaining

adequate mental health care, which in

combination pose an excessive risk to the

mental health of prisoners.

The manner in which PDOC uses solitary

confinement involves a number of factors that in

combination violate the Eighth Amendment. See

Peterkin v. Jeffes, 855 F.2d 1021, 1024-25 (3rd Cir.

1988) (holding that the district court appropriately

considered the “totality of conditions” when addressing

the constitutionality of Pennsylvania’s death row unit,

where prisoners were confined to their cells for

approximately 22 hours a day.) We did not consider any

individual factor to be determinative. Instead, we

assessed the constellation of conditions in PDOC’s

solitary confinement units and the harms found by our

65a

expert-consultants that resulted from these conditions

and practices.

In reaching our conclusion, we considered the

following factors:

(1) The length of time prisoners with SMI spent in

solitary confinement;

(2) The extent to which the use of solitary

confinement on prisoners with SMI interfered

with staff members’ ability to provide adequate

mental health care; and

(3) The unjustifiable harshness of the conditions

that attended PDOC’s use of solitary

confinement on prisoners with SMI.

First, the manner by which PDOC routinely

subjects prisoners with SMI to lengthy periods of

solitary confinement involves conditions that

our expert- consultants found subjected

prisoners to harm or an unreasonable risk of

harm and contributes to the Constitutional

violation. As one court noted, long periods of isolation

for those with SMI can be “the mental equivalent of

putting an asthmatic in a place with little air to

breathe.” Madrid v. Gomez, 889 F. Supp. 1146, 1265-66

(N.D. Cal. 1995); see also Am. Psychiatric Ass’n,

Position Statement on Segregation of Prisoners with

Mental Illness (2012) (“Prolonged segregation of adult

inmates with serious mental, with rare exceptions,

should be avoided due to the potential harm to such

inmates.”), Morris v. Travisono, 499 F. Supp. 149, 160

(D.R.I. 1980) (noting that “[e]ven if a person is confined

to an air conditioned suite at the Waldorf Astoria,

denial of meaningful human contact for…an extended

period of time may very well cause severe psychological

66a

injury”); United States v. Bout, 860 F. Supp. 2d 303, 308

(S.D.N.Y, 2012) (“It is well documented that long

periods of solitary confinement can have devastating

effects on the mental well-being of a detainee.”).

From May 2012 to May 2013, over 1,000 prisoners

identified on PDOC’s active mental health roster spent

three or more continuous months in solitary

confinement. Nearly 250 of these prisoners have been

in solitary confinement for more than a year. Most of

these prisoners were held in an RHU or one of the other

solitary confinement units.

For many with SMI, PDOC’s use of prolonged

isolation is mentally taxing because they can see no

end point to it. We interviewed many prisoners with

SMI who told us they believed they would never get out

of solitary. Some told us that they had accumulated

years of disciplinary time in the RHU and feared they

would never be returned to the general population.

Others explained that they had lost all faith in their

ability to conform their conduct to the prison’s rules in

a way that would allow them out of their isolation cell.

Second, the manner in which the PDOC uses

solitary confinement interferes with its ability to

provide adequate mental health treatment to

prisoners with SMI and contributes to the

9 According to our consultants, prisoners with SMI may also need

regular and meaningful counseling from mental health staff

members, peer and other counseling skill building, and structured

and unstructured activities. Activities may include eating out of

cell, outdoor recreation, and showers. They explain that these

types of activities provide opportunities for both socializing and

organizing one's life in the facility in a way that is therapeutic and

important to the health of prisoners with SMI.

67a

Constitutional violation. See Coleman v. Wilson,

912 F. Supp. 1282, 1320-21 (E.D. Cal. 1995) (adopting

the magistrate judge’s conclusion that “inmates are

denied access to necessary mental health care while

they are housed in [solitary confinement]”).

Appropriate mental health treatment for prisoners

with SMI should involve much more than medication.

Nat’l Comm’n on Corr. Health Care, Standards for

Mental Health Services in Correctional Facilities, §

MH-G-02 (2008). Prisoners with SMI must also have,

among other things, “programming or appropriate

therapies (or both) to meet the mental health needs of

patients.” Id.9 Unfortunately, for much of last year,

hundreds of prisoners with SMI spent months in

solitary confinement receiving only medication and

occasional “cell-wide” visits from mental health staff

members, even though our expert- consultants found

more care was needed for those inmates.10

Recently, staff psychologists at many of the prisons

have started to conduct at least one out-of-cell therapy

session per month for prisoners with SMI currently

housed in an isolation unit. This approach constitutes

a significant improvement over past practices.

However, PDOC continues to use practices that fail

to ensure that prisoners with SMI in solitary

confinement receive the mental health treatment they

10 A cell-side visit typically involves a member of the mental health

staff standing outside a prisoner's cell, attempting to speak to the

prisoner through a food tray slot or cracks in a doorframe amid

the commotion on the unit. Such a visit typically lasts for only a

few minutes at a time, lacks confidentiality, and cannot be

equated with a face-to-face, out-of cell consultation/therapy

session. As one staff member explained, “You can't do therapy in

a hallway.”

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need. Cf. Casey v. Lewis, 834 F. Supp. 1477, 1547-49

(D. Ariz. 1993) (describing the inappropriate use of

isolation for prisoners with serious mental illness

because “[d]uring lockdown, inmates are provided

improper mental health care or no mental health

care”).

PDOC also uses solitary confinement in a way that

interferes with staff members’ ability to identify

prisoners who are mentally deteriorating in their cells.

The problem is particularly acute for under-diagnosed

prisoners not on the mental health roster. One former

staff psychologist explained that he found it difficult to

appropriately assess the condition of prisoners in

solitary confinement. He emphasized that his manager

discouraged him from doing anything other than

cursory cell-side assessments of prisoners’ mental

health. He noted that for inmates who were inactive

and in their cells most of the time, it was next to

impossible to fully assess the condition of prisoners

from cell-wide without an out-of-cell visit.

Third, unjustifiably harsh conditions often

attend PDOC’s use of prolonged solitary

confinement on prisoners with SMI. In

combination, these conditions are dehumanizing

and cruel and contribute to the Constitutional

violation. See Wilson v. Seiter, 501 U.S. 294, 304

(1991) (holding that when conditions of confinement

combine to “have a mutually enforcing effect that

produces the deprivation of a single, identifiable

human need,” they violate the Eighth Amendment); see

also Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.

1982) (“[T]he court must consider the ill effect of each

condition in the context of the prison environment,

especially when the ill effects of particular conditions

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are exacerbated by other related conditions.”). While

conditions for those housed in PDOC’s solitary

confinement units vary somewhat by prison, there are

consistent themes. PDOC’s prisons consistently subject

prisoners with SMI to not just prolonged isolation, but

also unnecessarily harsh and disorienting housing

conditions, punitive behavior modification plans, and

the excessive use of full-body restraints. These

conditions serve only to exacerbate their mental

illness. We discuss these conditions below:

Harsh conditions: Although by its nature

solitary confinement typically includes aspects that

would be considered harsh in the ordinary sense of the

word, the particular use of solitary confinement on

inmates with SMI in the PDOC system, when

examined under the totality of the circumstances,

includes unjustifiably harsh conditions, even though

some of these conditions, standing alone, might not be

inappropriate in other circumstances. Every prisoner

placed in solitary confinement must spend almost his

entire day confined to a cell that is less than 100 square

feet in size—about the size of an average American

bathroom. The cell contains a metal bed frame, a thin

plastic mattress, metal sink, metal toilet, and metal

desk with an attached metal seat, and sometimes a

small shelf. At some of the prisons, the cell will also

have a small exterior- facing window, but at many of

the prisons, the cell has no exterior window and no

natural light coming directly into it. Usually, the

prisoner is locked in his cell behind a solid metal door.

The door has a narrow slot (used for passing food trays

and for handcuffing the prisoner before he can leave

the cell), and a small plastic window with a view to

either a hallway or the housing unit’s common area.

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The lighting in the cell can be dimmed, but it can

never be turned off, even at night.

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