Petition for Writ of Certiorari — Phelps v. Stevenson (No. 07-575)

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Supreme ( Court U.S.

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Supreme Court of the Gnited States

THOMAS CARROLL, WARDEN OF

THE DELAWARE CORRECTIONAL CENTER,

Petitioner,

DAVID STEVENSON, MICHAEL

MANLEY, MICHAEL L. JONES,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+ meine

PETITION FOR A WRIT OF CERTIORARI

JOSEPH R. BIDEN, III

Attorney General of the

State of Delaware

LAWRENCE W. LEWIS

State Solicitor

KEITH R. BRADY*

Assistant State Solicitor

*Counsel of Record

RICHARD HUBBARD

Deputy Attorney General

DELAWARE DEPARTMENT OF JUSTICE

820 N. French Street, 6th Floor

Wilmington, Delaware 19801

Telephone: (302) 577-8400

Fax: (302) 577-5866

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (409) 342-2831

QUESTIONS PRESENTED

Two of the three Respondents (Stevenson and

Manley) were sentenced to death for committing first-

degree murder. After their sentences were vacated

and their cases were remanded for resentencing,

prison officials transferred them from death row toa

highly-secure housing area known as the Security

Housing Unit (SHU). The third Respondent (Jones),

transferred to SHU after a prison disturbance, was

awaiting trial for first-degree murder. The questions

presented are:

1. Whether, as the Third Circuit held, Respondents

were entitled under the Due Process Clause to receive

an explanation of the reason for their transfer and an

opportunity to respond.

2. Whether, as the Third Circuit held, Respondents

stated a substantive due process claim upon which

relief could be granted because they alleged that their

transfer to SHU constituted punishment.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED................ (NL ]

STATEMENT OF THE CASE.............cccscssceseseess 2

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REASONS FOR GRANTING THE PETITION ..... 8

I. CERTIORARI SHOULD BE GRANTED

TO REVIEW THE THIRD CIRCUITS

RULING THAT THE DUE PROCESS

CLAUSE REQUIRES PRISON OFFI-

CIALS TO PROVIDE PRETRIAL DE-

TAINEES WITH NOTICE AND AN

OPPORTUNITY TO RESPOND WHEN-

EVER THE DETAINEES ARE TRANS-

FERRED TO MORE RESTRICTIVE

go 9

A. The Circuits Are in Conflict over This

a 9

1. The circuits are in conflict over

whether administrative transfers

of detainees implicate procedural

Teese cc ccevenvsecsossseeee 9

TABLE OF CONTENTS -— Continued

Page

2. The circuits are in conflict over

whether Sandin v. Connor applies

to administrative transfers of de-

tainees

B. The Third Circuit’s Ruling Conflicts

with This Court’s Decisions

1. This Court has always rejected the

view that, in the absence of a

state-law liberty interest, the Due

Process Clause requires proce-

dural protection for prison trans-

. There is no reasonable expectation

of general population housing con-

ditions here

. A transfer from one maximum-

security housing area to another

should not require procedural due

process

C. This Issue Is Important to the Ad-

ministration of State Prisons

If. CERTIORARI SHOULD BE GRANTED

TO REVIEW THE THIRD CIRCUIT'S

RULING THAT RESPONDENTS’ SUB-

STANTIVE DUE PROCESS RIGHTS

WERE VIOLATED WHEN THEY WERE

TRANSFERRED TO THE SECURITY

HOUSING UNIT

CONCLUSION

INDEX TO APPENDIX

Page

Third Circuit Decision dated July 30, 2007....... App. 1

Memorandum Order from District of Delaware

dated December 7, 2004 .................ccceceeeeeeeees App. 20

Complaint filed in District of Delaware dated

PIE BITE SEEN science diss oheeeokecicumdccedanevacniids App. 25

Defendant’s Memorandum of Points and Au-

thorities in Support of His Motion to Dismiss

Se iy Oe edactnsecesndeanecesiinvsarnicenvinasvenes App. 40

TABLE OF AUTHORITIES

Page

CASES:

Alexander v. Frank, 967 F.2d 583 (table), 1992

WL 149679 (9th Cir. June 30, 1992) ....000. ee .. 12

Bell v. Wolfish, 441 U.S. 520 (1979)................... passim

Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001)....... 14

Block v. Rutherford, 468 U.S. 576 (1984)............ 24, 25

Brown v. Cunningham, 730 F.Supp. 612 (D.Del.

SS iaiavadsecuhicniniestunciteanasiapasieseamiouaatagsabadinuaioaderanels 17

Cobb vu. Aytch, 643 F.2d 946 (3d Cir. 1981).................. 4

Cornett v. Webb, 2004 WL 3437504 (E.D.Ky.

BE TEI PEE a5 vec sarur anh casegchermntoudevaieaeiiaadieraeaandionias 15

Crane v. Logli, 992 F.2d 136 (7th Cir. 1993) ............. 10

Franklin v. True, 76 F.3d 381 (table), 1996 WL

43632 (7th Cir. dan. BO, 19GB) ..4..ccccccoccncssescsenscesses 1]

Fuentes v. Wagner, 206 F.3d 335 (3d Cir.), cert.

denied, BSI U.S. B21 (ZOO]).....ccccecccsvecesvrscveesscesss 4,14

Garcia v. Pugh, 8 F.3d 26 (table), 1993 WL

362268 (9th Cir. Sept. 17, 1993)..........eceeeeseeeeeeeeee 11

Getch v. Rosenbach, 700 F.Supp. 1365 (D.N.J.

hide fcticieiscinticacadsnedao tlc devesnet 10, 11

Hewitt v. Helms, 459 U.S. 460 (19838).............. 5,15, 18

Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002)............ 10

Holly v. Woolfolk, 415 F.3d 678 (7th Cir. 2005)......... 10

Johnson v. Esry, 210 ¥°.3d 379 (table), 2000 WL

375269 (Sth Cir. Apr. 13, 2000) ..........ccccccccesoess 14, 15

TABLE OF AUTHORITIES — Continued

Page

Martucci v. Johnson, 944 F.2d 291 (6th Cir.

McMillian v. Cortland County Correctional

Facility, 198 F.3d 234 (table), 1999 WL

163036 (2d Cir. Sept. 14, 1999) ......ccorcccescosscccesoesees 12

Meachum v. Fano, 427 U.S. 215 (1976)......... 16, 17, 22

Miramontes v. Chief of Department of Correc-

tions, 86 Fed. Appx. 325 (9th Cir. 2004) ................ 12

Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996)........ 14

Montanye v. Haymes, 427 U.S. 236 (1976).......... 16, 17

Olim v. Wakinekona, 461 U.S. 238 (1983)................. 16

Polk v. Parnell, 132 F.3d 33 (table), 1997 WL

py, FRG Ee i oe. yf Sean 14

Rae v. Henderson, 1995 WL 759466 (D.C. Cir.

Se AR |: SERRRERI SR rE oe eT EROS CORE a 14, 15

Rapier v. Harris, 172 F.3d 999 (7th Cir. 1999).......... 14

Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000)......... 14

Rodriguez v. Penobscot County Jail, 2001 WL

3 7OGOS (EI DEG. ADT. 12, ZOOT) on civcrvesescccevescceseseseseses 15

Sandin v. Connor, 515 U.S. 472 (1995).............. passim

Stafford v. Edmonds, 76 F.3d 380 (table), 1996

WL 38222 (6th Cir. Jan. 30, 1996)...............0.cee00e- 11

Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007)......... 1

Vitek v. Jones, 445 U.S. 480 (1980)...............0..0... 17, 19

Vill

TABLE OF AUTHORITIES — Continued

Page

Walton v. NFN Douglas, 2006 WL 1751735

Cea te NR Ty SD vsccdcuctescnennecncesansindoinasaionnennin 15

Washington v. Harper, 494 U.S. 210 (1990)............... 20

Wilkinson v. Austin, 545 U.S. 209 (2005).................. 21

Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995)........... 10

U.S. CONSTITUTION AND FEDERAL STATUTES:

Fourteenth Amendment of the United States

I os asdecvenaenuensinieaseras 1,2

Be ee Rica encicencaiens terete eseaiaineiacedon 1

GE. 6 Pte seticomnnnnmnimmeamiasaannns 2,3

OPINIONS BELOW

The opinion of the court of appeals is reported at

495 F.3d 62 (3d Cir. 2007), and is reproduced at App.

1. The district court’s opinion is unreported but

reproduced at App. 20.

JURISDICTION

The court of appeals entered its opinion and

judgment on July 30, 2007. No rehearing petition was

filed below. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional provision is the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution, which states as follows:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. 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, with-

out due process of law; nor deny to any

person within its jurisdiction the equal pro-

tection of the laws.

U.S. CONST. amend. XIV, § 1.

STATEMENT OF THE CASE

On March 4, 2004, the Respondents — three

prisoners housed at the Delaware Correctional Cen-

ter (“DCC”) — filed an action under 42 U.S.C. § 1983

against Warden Thomas Carroll, alleging violations of

their substantive and procedural due process rights.

The United States District Court for the District of

Delaware dismissed their complaint. The United

States Court of Appeals for the Third Circuit re-

versed, holding that Respondents stated valid sub-

stantive and procedural due process claims sufficient

to survive a motion to dismiss.

A. Factual Background

1. The three Respondents in this case are David

Stevenson, Michael Manley, and Michael L. Jones. At

the time of their complaint, Respondents Stevenson

and Manley were awaiting resentencing. Both had

been convicted and sentenced to death in January

1997, but their sentences were vacated and remanded

on or about May 30, 2001. At that time, they were

moved off death row and into the Security Housing

Unit (“SHU”). Stevenson was moved from the SHU to

a less restrictive pre-trial facility in December 2003,

but was returned to the SHU in January 2004.

According to the complaint, neither one of them

received a hearing or explanation for their transfers

into the SHU. They were both subsequently resen-

tenced to death on February 3, 2006.

The third Respondent, Jones, was awaiting trial

for first-degree murder at the time he filed his com-

plaint. Following an alleged prisoner riot at Gander

Hill Prison in Wilmington, Delaware, he and several

other inmates were moved to the SHU on or about

February 19, 2003. Jones asserted that, like Steven-

son and Manley, he was not afforded an explanation

or hearing regarding his transfer into more restrictive

housing. He did, however, state that he was alleged to

have been involved in the riot at Gander Hill. Jones

was subsequently found guilty of first-degree murder

and sentenced to life imprisonment on September 16,

2005.

Prior to their resentencing (in the case of Steven-

son and Manley) and conviction (in the case of Jones),

the Respondents filed their § 1983 actions. They

sought relief in the form of a transfer into the general

prison population, monetary damages, and the estab-

lishment of a system of review for transfers of pretrial

detainees into the SHU.

2. The Delaware Correctional Center (DCC) is

the largest prison in Delaware, and is iocated in

Smyrna, Delaware (10 miles north of Dover). It

houses both convicted and sentenced inmates, and it

holds the State’s only death row housing area, which

is maximum security. DCC also houses pretrial

detainees (a category which, under Third Circuit

precedent, includes inmates whose sentences but not

convictions have been overturned).’ DCC provides two

levels of housing for pretrial detainees: the general

population is housed in the B Building pretrial unit,

and security-risk detainees are housed in the Secu-

rity Housing Unit (SHU) in Building #18. (App. 53).

SHU is more restrictive than the general population

pretrial, but detainees in SHU are permitted access

to attorneys, the law library, commissary, recreation,

and grievance procedures. (App. 54). Upon receiving a

sentence, the prisoners will go through the classifica-

tion process. (App. 54).

In their complaint, Stevenson and Manley al-

leged that they had been housed in SHU for 32

months since being off death row. (App. 34, 37).

Contrasting the conditions in the SHU with pretrial

general population conditions (App. 34-37), they

characterized the transfers as “punitive.” (App. 34).

At no place in the complaint, however, did they allege

any motive by any official to punish them or any

statement by any official indicating an intent to

punish them.

The complaint failed to address the conditions in

death row or compare them to the conditions in SHU.

' Prisoners who have been convicted but not yet sentenced

are deemed pretrial detainees in the Third Circuit. App. 7 (citing

Cobb v. Aytch, 643 F.2d 946, 962 (3d Cir 1981); Fuentes v.

Wagner, 206 F.3d 335, 341 (3d Cir.), cert. denied, 531 U.S. 821

(2000).

In fact, the complaint acknowledged that Stevenson

and Manley’s transfer off death row and return to

pretrial detainee status after their sentences were

vacated was pursuant to “standard practice” at DCC.

(App. 34). The complaint alleged that “other inmates

. in the same situation” were moved to general

population for detainees instead of SHU. (App. 8).

The complaint failed to specify whether the “same

situation” meant having a sentence vacated or having

a death sentence vacated.

An affidavit by the Warden that was attached to

his motion to dismiss described the reasons for the

Respondents’ placement in SHU. (App. 52). The

Warden’s affidavit stated that detainees considered a

security risk are housed in the SHU pretrial area.

Because all three plaintiffs were charged with first-

degree murder, and two of them had been convicted of

that charge, they were considered highly dangerous.

Stevenson and Manley were considered especially

dangerous because they were subject to being sen-

tenced to death again. Therefore, they were assigned

to the pretrial area of SHU. (App. 53).

B. Proceedings Below

The district court held that the Respondents’

complaint failed to state a claim upon which relief

can be granted. (App. 23). It found that their transfer

into the SHU was within the scope of the prison

officials’ authority with respect to prison manage-

ment. And, relying on Hewitt v. Helms, 459 U.S. 460

(1983), and Sandin v. Conner, 515 U.S. 472, 482-83

(1995), the court found no state law or regulation

conferring a liberty interest upon the Respondents.

(App. 23).

Respondents appealed to the Third Circuit. They

presented two arguments as to why their complaint

should have survived the motion to dismiss. First,

they argued that they sufficiently asserted a liberty

interest in being free from punishment prior to impo-

sition of sentence. Second, they asserted that they

should have been afforded notice of their transfer and

an opportunity to respond. The Warden disputed the

sufficiency of their substantive and procedural due

process claims, arguing that the gist of their com-

plaint was that they had a right to be in general

population, for which they had no cognizable liberty

interest.

The court of appeals held that the Respondents

were entitled to procedural due process at the time

they were transferred to SHU. (App. 14). This holding

applied to Stevenson and Manley as well as to Jones,

even though Stevenson and Manley had been housed

in death row before their transfer. The court reasoned

that “[{ajlthough pretrial detainees do not have a

liberty interest in being confined in the general

prison population, they do have a liberty interest in

not being detained indefinitely in the SHU without

explanation or review of their confinement.” (App.

14). The court ruled, therefore, that detainees who

are administratively transferred are generally enti-

tled to procedural due process: “Prison officials must

provide detainees who are transferred into more

restrictive housing for administrative purposes... an

explanation of the reason for their transfer as well as

an opportunity to respond.” (App. 15).

The court of appeals also held that the complaint

sufficiently alleged a substantive due process claim to

survive a motion to dismiss. The court found that the

reasoning of Sandin v. Connor, 515 U.S. 472 (1995),

had no application to the Respondents in this case,

who are all deemed pretrial detainees under Third

Circuit precedent. Relying upon Bell v. Wolfish, 441

U.S. 520 (1979), the court stated that the issue was

whether prison officials were punishing the Respon-

dents when they transferred them to the SHU. Not-

ing that Stevenson and Manley asserted they were

not treated the same as other similarly situated

inmates, the court found that one reasonable infer-

ence from the complaint was that the Respondents’

confinement in SHU was arbitrary and, therefore,

punitive. (App. 11).’

* In a footnote, the court stated that the Respondents’

request for a system of review for transfers of pretrial detainees

into SHU was moot because, at the time of this decision, Steven-

son and Manley were back on death row and Jones was housed

in the part of SHU for sentenced inmates. However, the court

viewed the plaintiffs’ claims for monetary damages and relief in

the form of a transfer into the general population as viable.

(App. 3 n.1). The court also ruled that the determination of

qualified immunity should be initially decided by the district

court. (App. 19).

REASONS FOR GRANTING THE PETITION

It has been nearly 30 years since this Court

issued its seminal opinion on the rights of pretrial

detainees: Bell v. Wolfish, 441 U.S. 520 (1979). Today,

the circuit courts are going in different directions on

the scope of detainees’ rights under the Due Process

Clause, each in reliance upon Bell. It is time for this

Court to provide additional guidance on the issue.

The instant case is the appropriate vehicle to

address the issue, for it illustrates the conflict and

confusion among the circuits, as well as a departure

from the original precepts of Bell. The Third Circuit

has announced a sweeping rule that all pretrial

detainees have a liberty interest entitling them to

notice and opportunity to respond any time they are

transferred to more restrictive housing. Applied here,

the Third Circuit rule led to the following, utterly

illogical, outcome: convicted murderers moved from

death row to a highly secure housing area for pretrial

detainees, pending a determination in state court as

to whether they should receive death sentences or life

imprisonment, are deemed to have procedural due

process rights that are triggered by the move. The

same result would not obtain in several other federal

courts of appeal, which have concluded in conflict

with the Third Circuit that administrative transfers

do not implicate pretrial detainees’ liberty interests.

The Third Circuit's substantive due process

ruling also warrants this Court’s review. The Third

Circuit held that, because the complaint asserted that

the Respondents were not treated the same as other

similarly situated inmates, the complaint stated a

claim for a violation of their substantive due process

rights. It is highly implausible, however, that a death

row inmate is being punished when he is transferred

out of death row. The complaint did not assert that

the new housing unit is any more restrictive than

death row. Nor did it identify any fact supporting the

Respondents’ allegation of dissimilar treatment. If

such a complaint can survive a motion to dismiss,

motions to dismiss will never succeed on this issue. It

should not be that easy for prisoners to force prison

officials to go through discovery.

CERTIORARI SHOULD BE GRANTED TO

REVIEW THE THIRD CIRCUIT’S RULING

THAT THE DUE PROCESS CLAUSE RE-

QUIRES PRISON OFFICIALS TO PRO-

VIDE PRETRIAL DETAINEES WITH

NOTICE AND AN OPPORTUNITY TO RE-

SPOND WHENEVER THE DETAINEES

ARE TRANSFERRED TO MORE RESTRIC-

TIVE HOUSING UNITS.

A. The Circuits Are in Conflict over This

Issue.

1. The circuits are in conflict over

whether administrative transfers of

detainees implicate procedural due

process,

a. Numerous precedential opinions from other

courts of appeal, most notably the Sixth and Seventh

Circuits, have held that administrative transfers of

detainees generally do not implicate procedural due

process concerns. See Martucci v. Johnson, 944 F.2d

291 (6th Cir. 1991); Holly v. Woolfolk, 415 F.3d 678,

679 (7th Cir. 2005); Higgs v. Carver, 286 F.3d 437, 438

(7th Cir. 2002); Zarnes v. Rhodes, 64 F.3d 285 (7th

Cir. 1995); Crane v. Logli, 992 F.2d 136 (7th Cir.

1993).

Detainees charged with murder are commonly

housed in maximum security, with many restrictions

and few privileges, and their due process challenges

are commonly rejected by the courts. In Crane uv.

Logli, 992 F.2d 136 (7th Cir. 1993), the Seventh

Circuit rejected a detainee’s procedural due process

claim on facts similar to those all-ged here. The

detainee was held in a maximum security prison

during the period after his conviction was reversed by

an appellate court and pending retrial. The lower

court dismissed the complaint and the Seventh

Circuit affirmed the dismissal. Applying the Bell v.

Wolfish due process analysis, the court found no

liberty interest was implicated. Jd. at 139. Although

the Seventh Circuit questioned whether the plaintiff

was really a pretrial detainee, it also relied on the

analysis of the district court in Getch v. Rosenbach,

700 F.Supp. 1365, 1370 (D.N.J. 1988). In Getch, the

plaintiff’s detainee status was accepted by the court

but found subordinate to the fact that the Due Proc-

ess Clause simply did not create a liberty interest

under those circumstances. Although the plaintiff in

Getch failed to dispute that he lacked a liberty inter-

est under the Due Process Clause of the Fourteenth

Amendment, the district court’s analysis clearly

demonstrated the court’s belief that such an interest

was absent. Id. at 1370. The Seventh Circuit agreed

with that view. See also Franklin v. True, 76 F.3d 381

(table), 1996 WL 43532 (7th Cir. Jan. 30, 1995).

The Sixth Circuit has likewise rejected the notion

that detainees have a liberty interest in the security

level of their confinement. In Martucci v. Johnson,

944 F.2d 291 (6th Cir. 1991), the Sixth Circuit re-

jected the claim of a liberty interest in the context of

a short-term disciplinary confinement for a detainee.

The lower court found that the confinement was

based on a security decision and granted summary

judgment for the defendants. Applying Bell v. Wolfish,

the Sixth Circuit embraced the lower court’s reliance

on the principle of deference to the judgment of prison

officials as to security decisions. The appellate court

stated: “The federal Constitution, standing alone,

does not confer upon prisoners a ‘liberty interest’ in

any particular form of confinement.” Jd. See also

Stafford v. Edmonds, 76 F.3d 380 (table), 1996 WL

38222 (6th Cir. Jan. 30, 1996).

b. Through unpublished opinions, the Second

and Ninth Circuits have also rejected the notion that

the Due Process Clause grants pretrial detainees a

liberty interest in the security level of their housing

assignment. In Garcia v. Pugh, 8 F.3d 26 (table), 1993

WL 362268 (9th Cir. Sept. 17, 1993), the Ninth Cir-

cuit held that a detainee’s placement in maximum

security did not violate his procedural due process

rights because he had no liberty interest in a particu-

lar classification. The Ninth Circuit reached the same

result in Alexander v. Frank, 967 F.2d 583 (table),

1992 WL 149679 (9th Cir. June 30, 1992), in which

the court affirmed summary judgment for prison

officials where a detainee alleged his classification to

maximum security violated the Due Process Clause.

Applying Bell v. Wolfish, the appellate court held that

prisoners “do not have a constitutional right to a

particular classification status.” Jd. at *1. The court

found a reasonable relationship between the pris-

oner’s murder charges and his classification to maxi-

mum security. /d. See also Miramontes v. Chief of

Department of Corrections, 86 Fed. Appx. 325 (9th

Cir. 2004).

The Second Circuit has also rejected the claim

that classifying a detainee to maximum security

implicates any liberty interest under the due process

clause. In McMillian v. Cortland County Correctional

Facility, 198 F.3d 234 (table), 1999 WL 753336 (2d

Cir. Sept. 14, 1999), the Second Circuit affirmed

summary judgment for prison officials after finding

the classification was rationally related to a legiti-

mate government interest. The appellate court stated

that the classification comported with Bell v. Wolfish

and “did not otherwise impair any liberty interest

that would trigger due process requirements.” Jd. at

wi 5

Although many of these cases were decided at

the summary judgment stage, their analysis applies

equally at the motion-to-dismiss stage. The courts

reasoned as follows: (1) the Due Process Clause does

not create a liberty interest with respect to a transfer

to administrative segregation or maximum security,

(2) if such an interest exists, it is because it is created

by state law, and (3) where state law creates no

liberty interest, none exists. In this case, the district

court was well aware, through precedent, that Dela-

ware has never provided a liberty interest with

respect to housing transfers for administrative or

classification reasons, and so it was entitled to dis-

miss the procedural due process claim. In reversing

the district court, the Third Circuit departed from the

sound reasoning of several other federal courts of

appeals.

2. The circuits are in conflict over

whether Sandin v. Connor applies

to administrative transfers of de-

tainees.

In Sandin v. Conner, 515 U.S. 472, 484 (1995),

this Court held that a State creates liberty interests

protected by the Due Process Clause only when it

“imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison

life.” In the decision below, the Third Circuit found

that Sandin had no application to this action because

the Respondents were, under that court’s precedents,

deemed “pretrial detainees.” The Third Circuit’s

opinion deepens an existing conflict over whether

Sandin applies to determinations of liberty interests

of detainees. Three circuits have held that it does;

four circuits agree with the Third Circuit that it does

not. This conflict over how to analyze detainees’

procedural due process claims further highlights the

need for this Court’s review.

The Second, Third, Seventh, and Ninth Circuits

have held that Sandin procedural due process analy-

sis does not apply to detainees. In Rapier v. Harris,

172 F.3d 999, 1004-05 (7th Cir. 1999), for example,

the Seventh Circuit distinguished Sandin on the

ground that pretrial detainees “are not under a

sentence of confinement, and therefore it cannot be

said that they ought to expect whatever deprivation

can be considered incident to serving such a sen-

tence.” See also Benjamin v. Fraser, 264 F.3d 175,

188-89 (2d Cir. 2001) (same); Fuentes v. Wagner, 206

F.3d 335, 341-42 n.9 (3d Cir.) (same), cert. denied, 531

U.S. 821 (2000); Resnick v. Hayes, 213 F.3d 445, 448

(9th Cir. 2000) (same); Mitchell v. Dupnik, 75 F.3d

517, 523 (9th Cir. 1996) (same).

By contrast, the Sixth, Eighth, and District of

Columbia Circuits have explicitly applied the Sandin

uv. Connor analysis to detainee due process claims,

even in the disciplinary segregation context. See Polk

v. Parnell, 132 F.3d 33 (table), 1997 WL 778511 (6th

Cir. Dec. 8, 1997); Johnson v. Esry, 210 F.3d 379

(table), 2000 WL 375269 (8th Cir. Apr. 13, 2000); Rae

uv. Henderson, 1995 WL 759466 (D.C. Cir. Nov. 17,

1995). In Polk, the Sixth Circuit found that allega-

tions by a pretrial detainee of being placed in disci-

plinary segregation for four days without due process

did not constitute an atypical and significant hard-

ship under Sandin. In Johnson, the Eighth Circuit

affirmed the dismissal of a detainee’s complaint,

finding his due process claim lacked merit because

eight days in a solitary cell did not amount to an

atypical and significant deprivation under Sandin.

And in Rae, the District of Columbia Circuit granted

a motion for summary affirmance, finding that a

detainee’s due process rights were not violated by

placement in protective custody because the confine-

ment did not constitute an atypical and significant

hardship under Sandin.

Several district courts have remarked upon the

confusion that exists in this area. See Rodriguez v.

Penobscot County Jail, 2001 WL 376453 at *3-*4

(D.Me. Apr. 11, 2001) (finding law is unclear for

purposes of qualified immunity); Cornett v. Webb,

2004 WL 3437504 at *5 (E.D. Ky. May 13, 2004)

(noting conflict among circuits and applying Bell,

Hewitt v. Helms, 459 U.S. 460 (1983), and Sandin

analysis to find no liberty interest); Walton v. NFN

Douglas, 2006 WL 1751735 at *5 (D.S.C. June 23,

2006) (noting “conflicting views” of whether discipli-

nary segregation of detainee entitles him to due

process).

B. The Third Circuit’s Ruling Conflicts

with This Court’s Decisions.

In viewing the issue as whether pretrial detain-

ees have a right to procedural due process when they

are administratively transferred, the Third Circuit

framed the issue in an overly general manner.’ The

issue 1S, more precisely, whether these pretrial de-

tainees had a right to due process under these cir-

cumstances. That is, whether pretrial detainees

convicted of first-degree murder and housed on death

row, or charged with first-degree murder, are entitled

to due process when transferred to another high

security area. This Court’s decisions establish that

they are not.

1. This Court has always rejected the

view that, in the absence of a state-

law liberty interest, the Due Proc-

ess Clause requires procedural pro-

tection for prison transfers.

Historically, this Court has found that prisoners

have a liberty interest in administrative prison

transfers and classification decisions only where state

law created such an interest. See Meachum uv. Fano,

427 U.S. 215, 228-29 (1976); Montanye v. Haymes,

427 U.S. 236 (1976); Olim v. Waukinekona, 461 U.S.

238 (1983). In contexts other than prisoner transfers

and classification, this Court has found that the Due

Process Clause itself may be the source of a liberty

interest in certain circumstances where some form of

* The court stated: “Prison officials must provide detainees

who are transferred into more restrictive housing for adminis-

trative purposes ... an explanation of the reason for their

transfer as wel] as an opportunity to respond.” (App. 15)

grievous loss is imposed. See Vitek v. Jones, 445 U.S.

480, 494 (1980) (stigmatizing consequences of trans-

fer to mental! hospital coupled with mandatory behav-

ior modification as treatment for mental illness gave

rise to liberty interest). In Sandin v. Connor, 515 U.S.

472 (1995), the Court did not reject state law as the

general source of liberty interests for prisoner due

process claims, but restricted such state-law created

liberty interests to the context in which an atypical

and significant hardship relative to the ordinary

incidents of prison life is alleged.

Even though the decisions of this Court in

Meachum v. Fano, Montayne v. Haymes, and Sandin

v. Connor were partially premised upon the fact of

conviction, they were also premised upon the absence

of state law creating a liberty interest, as well as

upon the historical discretion of prison officials in

making such decisions and the limited role of the

federal judiciary with respect to prison management.

These latter factors apply with equal strength in the

detainee context as with convicted and sentenced

inmates.

The district court in this action carefully noted

the lack of any state law or regulation creating a

liberty interest for the Respondents here. It also

noted that prison regulations affirmatively gave the

Warden a great amount of discretion: “DOC Proce-

dure 3.31 explicitly states that the warden has virtu-

ally unlimited discretion in placing inmates within

the prison ‘in any security/custody level.’” (App. 42).

The court also relied upon Brown v. Cunningham,

730 F.Supp. 612, 614 (D.Del. 1990), a District of

Delaware precedent that found no state-law created

liberty interest in the Delaware prison system. Thus,

the most important source of a liberty interest accord-

ing to Hewitt v. Helms and Sandin v. Connor — state

law — is utterly lacking here.

2. There is no reasonable expectation

of general population housing con-

ditions here.

In Sandin, this Court approached the issue of the

existence of a liberty interest from the perspective of

what conditions a prisoner may reasonably expect to

be subjected to in the prison environment: “Although

we do not think a prisoner’s subjective expectation is

dispositive of the liberty interest analysis, it does

provide some evidence that the conditions suffered

were expected within the contour of the actual sen-

tence imposed.” 515 U.S. at 486 n.9. The fact that a

convicted and sentenced prisoner may reasonably

expect to face somewhat harsh conditions as part of

the punishment counseled against a finding of a

liberty interest even where state law could have been

said to provide it.

Here, the logic of punishment does not apply, but

the question of what housing conditions a detainee

charged with or convicted of first-degree murder may

reasonably expect is still relevant. The reasonable

expectations of a person claiming to have suffered a

deprivation due to state action are always an impor-

tant factor in liberty interest analysis. Thus, in Vitek

v. Jones, supra, the Court noted approvingly the

district court’s conclusion that:

This “objective expectation, firmly fixed in

state law and official penal complex prac-

tice,” that a prisoner would not be trans-

ferred unless he suffered from a mental

disease or defect that could not be ade-

quately treated in the prison, gave Jones a

liberty interest that entitled him to the bene-

fits of appropriate procedures in connection

with determining the conditions that war-

ranted his transfer to a mental hospital.

Id. at 489-90.

A detainee convicted of first-degree murder is not

in the same position as a detainee charged with

shoplifting. However, the court of appeals’ decision

would treat them as the same because they are both

detainees. Some consideration should be paid to what

security constraints a detainee should reasonably

expect given the circumstances of his case. A detainee

convicted of first-degree murder and possibly subject

to having the death penalty reimposed should expect

to be housed in a restrictive, high-security environ-

ment. If he is placed in general population, he may

consider himself fortunate, but any expectation of

that level of security housing is not reasonable and

should not be the basis for a finding of a liberty

interest.

3. A transfer from one maximum-

security housing area to another

should not require procedural due

process.

Another pertinent factor is what the conditions

were in the environment from which the detainee was

transferred. Where a detainee convicted of first-

degree murder has been housed in death row, and is

being moved to another high security area, it is

difficult to see how his prior residence in death row

conferred a liberty interest upon him. As this Court

stated in Washington v. Harper, 494 U.S. 210, 222

(1990), “[t]he extent of a prisoner’s right under the

Clause to avoid [detrimental state action] ... must be

defined in the context of the inmate’s confinement.”

In Sandin, this Court stated that “lawful incar-

ceration” results in the necessary withdrawal or

limitation of many privileges and rights. 515 U.S. at

485. A detainee convicted of murder, but not yet

sentenced, is as lawfully incarcerated as is a sen-

tenced inmate. Even in terms of the punishment of

convicted and sentenced inmates, this Court noted

that the process “effectuates prison management and

rehabilitative goals.” Jd. While rehabilitation may be

inapplicable to detainees, this Court stated in Bell v.

Wolfish, supra, that the prison management consid-

erations are the same for convicts and detainees. 441

U.S. at 546 n.28. The reasoning of Sandin should

apply to a detainee, especially one who has been

convicted of first-degree murder.

Nothing in Wilkinson v. Austin, 545 U.S. 209

(2005), is to the contrary. In Austin, this Court held

that extended confinement in the Ohio supermax

prison created an atypical and significant hardship

because of its indefinite duration, and the fact that

placement there disqualified an otherwise eligible

inmate for parole consideration. Jd. at 224. There is

no allegation in this case that the transfer to SHU

had any detrimental effect upon the sentence that the

Respondents would receive or serve, including future

parole consideration. And it is undisputed that Re-

spondents Stevenson and Manley were only placed in

pretrial SHU pending their resentencing to either

death or life imprisonment.

C. This Issue Is Important to the Admini-

stration of State Prisons.

The Third Circuit’s holding creates a procedural

due process right for all pretrial detainees, including

convicted but unsentenced prisoners, at or about the

time of transfer to a higher security housing area

than general population, regardless of the reason for

the transfer.’ The court ruled that “[p]rison officials

must provide detainees who are transferred into more

restrictive housing for administrative purposes... an

‘ The court of appeals seemed to assume that pretrial SHU

housing is more restrictive than death row, even though this was

not alleged. The complaint focused on a comparison of SHU to

the general population conditions, as the court itself noted. (App.

12).

explanation of the reason for their transfer as well as

an opportunity to respond.” (App. 15). The holding

contains no limits: it means that all detainees being

moved to pretrial SHU will have to receive written

notice of the reason for their housing status, with

opportunity for them to rebut those reasons, regard-

less of the reason for their transfer or where they

were housed before. Although this rule will aid de-

tainees only marginally, it will cause prison officials

considerable time and effort.

Given that the reason for Respondents’ confine-

ment in SHU is that they are either convicted of or

charged with first-degree murder, there is nothing

that notice to them and a paper review of their re-

sponse would accomplish. It would become a mean-

ingless paperwork task, in addition to already-

considerable paperwork obligations, and a further

distraction from core responsibilities to protect the

lives of prison staff and other inmates. While obliga-

tions such as the one imposed in this case may appear

in isolation not to be onerous, collectively as such

obligations grow in the expanding universe of pris-

oner rights they can become an enormous distraction

from the central tasks of managing a prison or deten-

tion facility.

As this Court stated in Meachum v. Fano, 427

U.S. 215, 228-29 (1976):

Holding that arrangements like this [prison

transfers] are within the reach of the proce-

dural protections of the Due Process Clause

would place the Clause astride the day-to-

day functioning of state prisons and involve

the judiciary in issues and discretionary de-

cisions that are not the business of federal

judges. We decline to so interpret and apply

the Due Process Clause. The federal] courts

do not sit to supervise state prisons, the ad-

ministration of which is of acute interest to

the States.

If every detainee housing transfer allegedly resulting

in more onerous conditions is deemed to trigger due

process protection, as the Third Circuit holds, then

indeed the Due Process Clause has been placed

astride the day-to-day functioning of state prisons.

Il. CERTIORARI SHOULD BE GRANTED TO

REVIEW THE THIRD CIRCUIT’S RULING

THAT RESPONDENTS’ SUBSTANTIVE

DUE PROCESS RIGHTS WERE VIOLATED

WHEN THEY WERE TRANSFERRED TO

THE SECURITY HOUSING UNIT.

In Bell v. Wolfish, this Court held that “under the

Due Process Clause, a detainee may not be punished

prior to an adjudication of guilt in accordance with

due process of law.” 441 U.S. at 535-36. That is not all

the Court stated in Bell. The Court also set forth

three important principles that bear on this case: (1)

the presumption of innocence is a doctrine for allocat-

ing the burden of proof in criminal trials, and has no

bearing on the rights of a detainee concerning prison

conditions (id. at 533); (2) security and other institu-

tional considerations are generally the same with

respect to convicted inmates and pretrial detainees,

as pretrial detainees may be as dangerous or even

more so than convicted inmates (id. at 546 n.28); and

(3) the courts should play a “very limited role” with

respect to detention facilities and, where there is a

reasonable relationship between a restriction and a

legitimate governmental purpose, restrictions do not

without something more amount to punishment (id.

at 539, 547-48). See also Block v. Rutherford, 468 U.S.

at 584, 589. Given these principles, it is difficult to

reconcile the recent expansion of detainee rights in

the Third Circuit with Bell.

In the instant case, there is no allegation in the

complaint of an express intent to punish by Warden

Carroll. The gist of the complaint (as to Stevenson

and Manley) is that convicted murderers who have

been moved to a pretrial area with conditions little or

no better than those in death row would like to be

housed in the general population. At one place in the

complaint, Respondents characterize their transfers

to SHU as “punitive.” (App. 34). The use of this term

should not, by itself, lead to the conclusion that the

complaint states a claim for a substantive due process

violation. The court of appeals, more focused on its

own broad definition of “pretrial detainee” than the

analysis of Bell, refuses to incorporate into its analy-

sis any recognition that one should expect first-degree

murderers, and those charged with first-degree

murder, to be placed in a highly secure housing area.

Nor should it matter that not every person charged

with first-degree murder has been placed in SHU: the

reasonable relationship between security concerns

and highly secure housing exists regardless of past

practice.

This Court expanded on the nature of the Bell v.

Wolfish test in a subsequent case, Block v. Ruther-

ford, 468 U.S. 576 (1984). In Block, this Court stated

that the due process/detainee reasonable relationship

test is not a balancing test. That is, the trial court

may not balance the detainee’s deprivations against

the state’s interest and determine whether the re-

strictions are justified. If there is a reasonable rela-

tionship between the asserted state interest and the

restrictions about which the detainee complains, the

trial court is obligated to defer to the professional

judgment of prison officials:

When the District Court found that many

factors counseled against contact visits, its

inquiry should have ended. The court’s fur-

ther “balancing” resulted in an impermissi-

ble substitution of its view on the proper

administration of Centrai Jail for that of the

experienced administrators of that facility.

Here, as in Wolfish, “[i]t is plain from [the]

opinions that the lower courts simply dis-

agreed With the judgment of [the jaill offi-

cials about the extent of the _ security

interests affected and the means required to

further those interests.”

468 U.S. at 589.

In the instant action, the Respondents complain

that they are held in a high security housing area

that is highly restrictive. The asserted state interest

is prison security. (See affidavit of Warden Tom Car-

roll at App. 53). Respondents admit that they are

charged with capital crimes. (App. 33). The profes-

sional judgment of the prison officials is that persons

charged with first-degree murder are likely to be

highly dangerous individuals, and therefore they

present a security risk. Because they are deemed to

present a security risk, they are housed in a high

security unit of SHU.

The reasonable relationship between the charges

against Respondents and the state’s interest in prison

security is obvious. Only by engaging in some form of

balancing can a court alter the required analysis and

its necessary outcome. However, such balancing is

prohibited. The issue of security, above all others, is

one where the professional judgment of prison offi-

cials must be respected and judicially affirmed. The

housing of alleged murderers is a situation where the

issue of security is more clearly implicated than in

any other.

In fact, some states do not transfer out of death

row those inmates who have been convicted of first-

degree murder but are being resentenced. The offi-

cials here moved Respondents Stevenson and Manley

to the pretrial area of SHU to comport with the Third

Circuit’s position that they had, by having their death

sentences vacated, become like pretrial detainees.

From a_ security perspective, however, nothing

changed with respect to Stevenson and Manley. They

remained equally dangerous as when they were

sentenced to death,

Finally, if every prisoner complaint using the

term “punitive” or alleging that somebody else was

treated differently is deemed to state a claim, regard-

less how insubstantial, the courts will not play a

“very limited role” with respect to prison manage-

ment. The prisoners have all the time in the world to

litigate everything they do not like. The prison offi-

cials do not. If the prison officials must litigate every

detainee housing decision where a detainee uses the

term “punitive” in a complaint, or where he alleges

others were treated better, the distraction created

thereby will be substantial — not limited.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOSEPH R. BIDEN, III

Attorney General of the State of Delaware

820 N. French Street, 6th Floor

Wilmington, Delaware 19801

Telephone: (302) 577-8400

Fax: (302) 577-5866

LAWRENCE W. LEwIs

State Solicitor

820 N. French Street, 6th Floor

Wilmington, Delaware 19801

Telephone: (302) 577-8400

Fax: (302) 577-5866

KEITH R. BRADY*

Assistant State Solicitor

*Counsel of Record

820 N. French Street, 6th Floor

Wilmington, Delaware 19801

Telephone: (302) 577-8400

Fax: (302) 577-5866

RICHARD HUBBARD

Deputy Attorney General

820 N. French Street, 6th Floor

Wilmington, Delaware 19801

Telephone: (302) 577-8400

Fax: (302) 577-5866

Counsel for the Petitioner

App. 1

495 F.3d 62

United States Court of Appeals,

Third Circuit.

David STEVENSON; Michael Manley;*

Michael L. Jones, Appellants

Thomas CARROLL, Warden.

*Reinstated per clerk’s order of 08/09/05.

No. 05-1088.

Argued June 4, 2007.

Filed: July 30, 2007.

Leon F. DeJulius, Jr. (Argued), Jones Day, Pitts-

burgh, PA, Counsel for Appellants.

Richard W. Hubbard (Argued), Department of

Justice, Wilmington, DE, Counsel for Appellee.

Before: SMITH, COWEN, and SILER, Circuit

Judges.*

OPINION OF THE COURT

SMITH, Circuit Judge.

Three detainees in the Delaware Correctional

System — David Stevenson, Michael Manley, and

Michael L. Jones — filed an action under 42 U.S.C.

§ 1983 against Warden Thomas Carroll, alleging

* The Honorable Eugene E. Siler, Senior Circuit Judge for

the United States Court of Appeals for the Sixth Circuit, sitting

by designation.

App. 2

violations of their substantive and procedural due

process rights. The District Court dismissed their

complaint. On appeal, they assert that their allega-

tions of placement in restrictive confinement state

valid substantive and procedural due process claims

sufficient to survive a motion to dismiss. We agree,

and remand the case to the District Court.

At the time of their complaint, Stevenson and

Manley were awaiting resentencing. Both had been

convicted and sentenced to death in January 1997,

but their sentences were vacated and remanded on or

about May 30, 2001. At that time, they were moved

off death row, and into the Security Housing Unit

(“SHU”). Stevenson was moved from the SHU to a

less restrictive pre-trial facility in December 2003,

but was returned to the SHU in January 2004. Nei-

ther one of them received a hearing or explanation for

their transfers into the SHU. They were both subse-

quently re-sentenced to death on February 3, 2006.

Jones was awaiting trial at the time of the com-

plaint. Following a disruption at Gander Hill Prison

in Wilmington, Delaware, he and several other in-

mates were moved to the SHU on or about February

19, 2003. Jones asserts that, like Stevenson and

Manley, he was not afforded an explanation or hear-

ing regarding his transfer into more restrictive hous-

ing. He does, however, state that he was alleged to

have been involved in the riot at Gander Hill. Jones

App. 3

was subsequently found guilty of first-degree murder

and sentenced to life imprisonment on September 16,

2005.

The appellants seek relief in the form of a trans-

fer back into the general prison population, monetary

damages, and the establishment of a system of review

for transfers of pretrial detainees into the SHU.’

The Warden filed a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), which was

granted on December 7, 2004. The District Court held

that the detainees’ transfer out of the general prison

population into the SHU for nonpunitive reasons was

within the scope of the prison officials’ authority with

respect to prison management. In its ruling, the

District Court relied upon Sandin v. Conner, 515 U.S.

472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The

plaintiffs appealed from this order on January 4,

2005.’ Review of a dismissal of a complaint under

Rule 12(b\X6) is plenary. Lake v. Arnold, 112 F.3d 682,

684-85 (3d Cir.1997).

' Stevenson and Manley are now on death row, and Warden

Carroll indicates that Jones is now housed in the part of the

SHU reserved for sentenced inmates. Accordingly, their request

for injunctive relief on the grounds that they are improperly

confined pretrial detainees is moot. The other two forms of relief

they seek continue to be viable.

* The District Court had subject matter jurisdiction under

28 U.S.C. § 1331. This Court has jurisdiction pursuant to 28

U.S.C. § 1291.

App. 4

II.

Stevenson, Manley, and Jones present two argu-

ments as to why their complaint should have sur-

vived the motion to dismiss. First, they argue that

they have sufficiently asserted a liberty interest in

being free from punishment prior to imposition of

sentence. Second, they assert that they should have

been afforded notice of their transfer and an opportu-

nity to respond. The Warden disputes the sufficiency

of their substantive and procedural due process

claims, arguing that they have made only conclusory

allegations regarding punishment and have no cogni-

zable liberty interest in being housed in the general

prison population.

In support of his contention that the complaint

made only conclusory statements regarding punish-

ment, the Warden looks to Evancho v. Fisher, 423 F.3d

347, 351-53 (3d Cir.2005). The opinion in Evancho,

however, offers the Warden no support. The holding of

Evancho is that the amended complaint of a state

employee filed against the state attorney general

alleging violations of the Pennsylvania Whistleblower

Law and her civil rights failed to meet the liberal

pleading requirement of Federal Rule of Civil Proce-

dure 8(a). Evancho admitted that she did not have

evidence of the involvement of one of her named

defendants. Jd. at 350. The complaint here is signifi-

cantly different in that it does support a claim for

substantive due process violations. As the Warden

acknowledges, the complaint alleges that “Plaintiffs

weren't given an explanation for the punitive move.”

App. 5

This express reference to punishment is supported by

numerous references in the complaint to lengthy

stays in isolation with prisoners who had disciplinary

problems or who were in protective custody, and the

imposition of additional hardships that are not

shared by the general prison population. The reason-

able inference from these factual allegations is that

appellants were impermissibly punished. Markowitz

v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990)

(“We accept as true the facts alleged in the complaint

and all reasonable inferences that can be drawn from

them.”). Liberal pleading dictates that, particularly in

the context of a pro se complaint, such allegations be

deemed sufficient. Erickson v. Pardus, __ U.S. __,

127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Gibbs

v. Roman, 116 F.3d 83, 86 (3d Cir.1997).

To be sure, there are reasonable inferences apart

from punishment that could be drawn from the

complaint as explanation for the appellants’ confine-

ment. Jones notes that he was alleged to have been a

participant in a riot at the Gander Hill: detention

facility. If this allegation is true, it is entirely possible

that his relocation to the Smyrna facilitys SHU was

for disciplinary reasons rather than for impermissible

retaliation or punishment. Likewise, Stevenson and

Manley admit that they had been sentenced to death,

but that only their sentences had been vacated.

Death sentences are available in Delaware only for

offenses of first-degree murder. See 11 DEL. CODE

$$ 636, 4209(a). Accordingly, the Warden’s assertion

that Stevenson and Manley were housed in the SHU

App. 6

because they were charged with violent offenses is

also a legitimate inference to be drawn from the

complaint. However, the fact that such inferences

may be drawn is proof that the dismissal was prema-

ture. The appellants have met their obligation to

provide grounds for their entitlement to relief by

presenting factual allegations sufficient to raise their

right to relief above a speculative level. See, e.g., Bell

Atlantic Corp. v. Twombly, __. U.S. __, 127 S.Ct.

1955, 1964-65, 167 L.Ed.2d 929 (2007).

The complaint also alleges sufficient facts to

make out a claim for relief based on procedural due

process. In addition to the list of deprivations the

plaintiffs suffered, the complaint states that they

were not afforded “all the rights of normal pretrial

|detainees],” and that the “standard practice at

Delaware Correctional Center” of returning those

whose sentences had been vacated to the general

prison population was not followed. These allegations

do not explicitly state the nature of the appellants’

alleged liberty interest, but they provide an adequate

framework for the inquiry. See, e.g., Unger v. Natl

Residents Matching Program, 928 F.2d 1392, 1402 (3d

Cir.1991) (requiring “facts in [the] complaint from

which we could infer that [plaintiff] had a liberty or

property interest”).

The complaint details the differences between

the conditions they encountered in the SHU and

those encountered by regular pretrial detainees. It

evinces the appellants’ contention that they were

improperly housed in the SHU without explanation

App. 7

or an opportunity to contest their placement. The

complaint states that the appellants wrote to Warden

Carroll and his employees requesting an explanation

for their confinement in the SHU, but received no

response. The reasonable inference to be drawn from

these allegations is that the appellants assert a

liberty interest in being free from punishment while

awaiting sentencing and in not being held in the SHU

indefinitely. The plaintiffs specifically requested relief

in the form of “a system to inform inmates why they

were put into isolation, who made the decision to put

them in isolation, and a chance to appeal the decision

to a non-partisan official.” They also requested that

the prison “[mJake procedural safeguards.” The

allegations in the complaint sufficiently raise the

appellants’ claim that their procedural due process

rights were violated.

ITT.

Although both Stevenson and Manley had been

convicted at the time of their complaint, they are

classified as pretrial detainees for purposes of our

constitutional inquiry. See Cobb v. Aytch, 643 F.2d

946, 962 (3d Cir.1981) (“The right to remain at liberty

continues until a court pronounces a judgment of

sentence, although after a jury has pronounced a

guilty verdict the court may insist upon greater

assurance that a defendant will submit to sentence.”);

see also Fuentes v. Wagner, 206 F.3d 335, 341 (3d

App. 8

Cir.2000). Their initial sentences had been vacated

and they were awaiting resentencing at the time of

their complaint and for the duration during which

they allege they were subjected to due process viola-

tions. Jones was awaiting trial at the time of the

complaint. The Warden does not contest the status of

the appellants as pretrial detainees for purposes of

this appeal.

With respect to the substantive due process

claims of punishment, in Bell v. Wolfish, the Supreme

Court established the principle that “under the Due

Process Clause, a detainee may not be punished prior

to an adjudication of guilt in accordance with due

process of law.” 441 U.S. 520, 535-36, 99 S.Ct. 1861,

60 L.Ed.2d 447 (1979). The Bell Court mandated a

pragmatic approach to determining what constitutes

punishment, and formulated the “reasonable rela-

tionship” test for determining whether a restriction is

punitive. Jd. at 539, 99 S.Ct. 1861 (“[I)f a particular

condition or restriction of pretrial detention is rea-

sonably related to a legitimate governmental objec-

tive, it does not, without more, amount to

punishment.’”). To aid courts in applying this test,

the Bell opinion looked to the test in Kennedy uv.

Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct.

554, 9 L.Ed.2d 644 (1963) for factors that courts

might use as guideposts in distinguishing restrictions

that are punitive from those that are not:

App. 9

Whether the sanction involves an affirmative

disability or restraint, whether it has histori-

cally been regarded as a _ punishment,

whether it comes into play only on a finding

of scienter, whether its operation will pro-

mote the traditional aims of punishment-

retribution and deterrence, whether the be-

havior to which it applies is already a crime,

whether an alternative purpose to which it

may rationally be connected is assignable for

it, and whether it appears excessive in rela-

tion to the alternative purpose assigned are

all relevant to the inquiry... .

See also Bell, 441 U.S. at 537-38, 99 S.Ct. 1861. How-

ever, the Court cautioned that “[a]bsent a showing of an

expressed intent to punish on the part of detention

facility officials, that determination generally will turn

on ‘whether an alternative purpose to which [the re-

striction] may rationally be connected is assignable for

it, and whether it appears excessive in relation to the

alternative purpose assigned [to it].’” Jd. at 538, 99

S.Ct. 1861 (quoting Kennedy, 372 U.S. at 168-69, 83

S.Ct. 554). Thus, “if a restriction or condition is not

reasonably related to a legitimate goal — if it is arbi-

trary or purposeless — a court permissibly may infer

that the purpose of the governmental action is punish-

ment that may not constitutionally be inflicted upon

tw 84 4 ewe wee

* In a footnote, the Court exhorted that

In determining whether restrictions or conditions are

reasonably related to the Government’s interest in

(Continued on following page)

App. 10

Unconstitutional punishment typically includes

both objective and subjective components. As the

Supreme Court explained in Wilson v. Seiter, 501 U.S.

294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), the

objective component requires an inquiry into whether

“the deprivation [was] sufficiently serious” and the

subjective component asks whether “the officials

act[ed)] with a sufficiently culpable state of mind|.}”

Id. at 298, 111 S.Ct. 2321. The Supreme Court did not

abandon this bipartite analysis in Bell, but rather

allowed for an inference of mens rea where the re-

striction is arbitrary or purposeless, or where the

restriction is excessive, even if it would accomplish a

legitimate governmental objective. See Bell, 441 U.S.

at 538-39 & n. 20, 99 S.Ct. 1861.Thus, we agree with

the summary of the holding of Bell in Rapier v. Har-

rus:

[A] particular measure amounts to punish-

ment when there is a showing of express in-

tent to punish on the part of detention

facility officials, when the restriction or con-

dition is not rationally related to a legitimate

maintaining security and order and operating the in-

stitution in a manageable fashion, courts must heed

our warning that “(such considerations are peculiarly

within the province and professional expertise of cor-

rections officials, and, in the absence of substantial

evidence in the record to indicate that the officials

have exaggerated their response to these considcra-

tions, courts should ordinarily defer to their expert

judgment in such matters.”

Id. at 540 n. 23, 83 S.Ct. 554 (citations omitted).

App. 11

non-punitive government purpose, or when

the restriction is excessive in light of that

purpose.

172 F.3d 999, 1005 (7th Cir.1999).

Because the District Court could not make either

an objective inquiry into the severity of the depriva-

tions or a subjective inquiry into the mental state of

the officials at the motion to dismiss stage, the dis-

missal was improper. One reasonable inference from

the allegations in the complaint of disparate treat-

ment of prisoners is that, at a minimum, the appel-

lants’ confinement in the SHU was arbitrary. See id.

at 304, 111 S.Ct. 2321 (allowing collective examina-

tion of conditions of confinement); see also Bell, 441

U.S. at 542, 99 S.Ct. 1861 (stating that confining

pretrial detainees “in such a manner as to cause them

to endure genuine privations and hardship over an

extended period of time might raise serious questions

under the Due Process Clause as to whether those

conditions amounted to punishment”). Stevenson and

Manley assert that they were not treated in the same

manner as other similarly situated inmates. Jones’

allegations suggest that one of the other prisoners

who was alleged to have been involved in the riot at

Gander Hill was released from the SHU in July 2003,

and two others were moved into the general prison

population in August 2003. These allegations inti-

mate a degree of as yet unexplained arbitrariness in

the procedures regarding placement in the SHU.

App. 12

In evaluating a pretrial detainee’s claim of un-

constitutional punishment, courts must examine the

totality of the circumstances within the institution. In

Hubbard v. Taylor, 399 F.3d 150 (3d Cir.2005), we

explained that “[o]ur inquiry into whether given

conditions constitute ‘punishment’ must therefore

consider the totality of circumstances within an

institution.” Hubbard, 399 F.3d at 160. Appellants

assert that, as compared to the conditions for the

general prison population, housing in the SHU is

significantly more restrictive. The complaint draws

specific, item-by-item comparisons between the

restrictions in the SHU and those in the general

prison population. The allegations in the complaint

raise an inference of impermissible punishment that

precludes granting a motion to dismiss and may

warrant further discovery.‘

* The able District Judge erroneously relied upon Sandin v.

Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) for

the proposition that the institutional decision to place appellants

in the SHU “is exactly the type of decision the Supreme Court

noted when it held that federal courts should defer to prison

officials with respect to managing the ‘ordinary incidents of

prison life.’” Appellants’ pretrial detainee status necessitates a

more nuanced approach. The focus in Sandin was on state-

created liberty interests regarding “freedom from restraint

which, while not exceeding the sentence in such an unexpected

manner as to give rise to protection by the Due Process Clause of

its own force, ... nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents

of prison life.” Jd. at 484, 115 S.Ct. 2293 (emphasis added). The

Court emphasized that its holding was driven by “the range

of confinement to be normally expected for one serving an

(Continued on following page)

App. 13

When warranted, such discovery need not be

extensive. In situations such as this, where the

allegations of punishment are coextensive with the

allegations that form the basis for the procedural due

process claim, it will generally be sufficient for the

prison officials to submit affidavits to show that the

classification was appropriate based on reasonable

prison management concerns. While district courts

have discretion to manage their cases, such affidavits

alone will often be adequate to resolve the punish-

ment inquiry. Although the substantive and proce-

dural due process evaluations are distinct, a showing’

by the prison officials that a restrictive housing

assignment is predicated on a legitimate managerial

concern and is therefore not arbitrary or purposeless,

will typically foreclose the substantive due process

inquiry.

Appellants assert that they were denied notice of

their transfer and an opportunity to respond. The

Supreme Court has repeatedly stated that “[t]he core

of due process is the right to notice and a meaningful

indeterminate term,” id. at 487, 115 S.Ct. 2293, and the “ex-

pected perimeters of the sentence imposed by a court of law,” id.

at 485, 115 S.Ct. 2293. Several courts of appeals, including this

one, subsequently concluded that “Sandin does not apply [to

pretrial detainees]. Sandin concerned punishment of a sen-

tenced prisoner, and therefore required a completely different

analysis.” Fuentes, 206 F.3d at 342 n. 9; see also Benjamin, 264

F.3d at 188.

App. 14

opportunity to be heard.” LaChance v. Erickson, 522

U.S. 262, 266, 118 S.Ct. 753, 189 L.Ed.2d 695 (1998).

Appellants have sufficiently pled facts to show that

they were housed in the restrictive conditions of the

SHU without any procedural protections. Although

pretrial detainees do not have a liberty interest in

being confined in the general prison population, they

do have a liberty interest in not being detained in-

definitely in the SHU without explanation or review

of their confinement. This result is compelled by our

holding in Shoats v. Horn, 213 F.3d 140 (3d Cir.2000).

In our discussion in Shoats focusing on the liberty

interests at stake, we explained that “we have no

difficulty concluding that eight years in administra-

tive custody, with no prospect of immediate release in

the near future, is ‘atypical’ in relation to the ordi-

nary incidents of prison life.” Jd. at 144. Unlike

appellants, Shoats was a sentenced inmate who

received periodic review of his status, to which he was

permitted to respond. Id. at 145-46. As explained

above, the protections due to sentenced inmates

provide a floor for what pretrial detainees may ex-

pect.

In determining what procedural protections are

adequate, we are guided by the tenet that “[dJue

process is flexible and calls for such procedural protec-

tions as the particular situation demands. Accordingly,

resolution of the issue whether ... administrative

procedures provided ... are constitutionally sufficient

requires analysis of the governmental and private

interests that are affected.” Mathews v. Eldridge, 424

App. 15

U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)

(citations omitted). Thus, the substantive liberty

analysis is integral to the inquiry into the process

due. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 560,

94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (“Consideration

of what procedures due process may require under

any given set of circumstances must begin with a

determination of the precise nature of the govern-

ment function involved as well as of the private

interest that has been affected by governmental

action.” (citations omitted)); Benjamin v. Fraser, 264

F.3d 175, 190 (2d Cir.2001).

Taking into account both the private interests of

the detainees and the governmental function in-

volved, it becomes clear that the process required for

administrative transfers of pretrial detainees need

not be extensive. Detainees have a liberty interest in

not being subjected to punishment for the crime with

which they have been charged until after they have

been convicted and sentenced, but the governmental

interest in maintaining prison security for the dura-

tion of their detention is substantial. Bell v. Wolfish,

441 U.S. 520, 540, 99 S.Ct. 1861, 60 L.Ed.2d 447

(1979) (“The Government also has legitimate inter-

ests that stem from its need to manage the facility in

which the individual is detained.”).

Prison officials must provide detainees who are

transferred into more restrictive housing for adminis-

trative purposes only an explanation of the reason for

their transfer as well as an opportunity to respond.

This level of process comports with the Supreme

App. 16

Court’s holding in Hewitt v. Helms, 459 U.S. 460, 103

S.Ct. 864, 74 L.Ed.2d 675 (1983) that the removal of a

sentenced inmate from the general prison population

and his transfer into administrative segregation

requires at least a minimal degree of process. The

Court explained that “the Due Process Clause re-

quires only an informal] nonadversary review of

evidence ... in order to confine an inmate feared to

be a threat to institutional security to administrative

segregation.” Jd. at 474, 103 S.Ct. 864. This informal

nonadversary review is satisfied when an inmate

receives “some notice of the charges against him and

an opportunity to present his views to the prison

official charged with deciding whether to transfer him

to administrative segregation.” Jd. at 476, 103 S.Ct.

864. The Court further explained that “[t]he proceed-

ing must occur within a reasonable time following an

inmate’s transfer....” /d. at 476 n. 8, 103 S.Ct. 864.

The degree of process required varies depending

on the reason for the transfer, with greater process

accorded to prisoners who are confined for discipli-

nary infractions than those moved for purely admin-

istrative reasons. See Mathews, 424 U.S. at 334, 96

S.Ct. 893. In Wolff v. McDonnell, 418 U.S. 539, 94

S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court

held that “written notice of the charges must be given

to the disciplinary-action defendant in order to inform

him of the charges and to enable him to marshal the

facts and prepare a defense,” and “there must be a

‘written statement by the factfinders as to the evi-

dence relied on and reasons’ for the disciplinary

App. 17

action.” [d. at 564, 94 S.Ct. 2963. As the Second

Circuit has noted, “the procedures required by Wolff

apply if the restraint on liberty is imposed for disci-

plinary reasons; if the restraint is for ‘administrative’

purposes, the minimal procedures outlined in Hewitt

are all that is required.” Benjamin, 264 F.3d at 190;

see also Rapier v. Harris, 172 F.3d 999, 1005-06 (7th

Cir.1999). Due to the unique exigencies of prison

management, and in accordance with Hewitt, the

minimal exchange of paperwork our holding will

occasion need not occur prior to the transfer of a

detainee.

Jones’ complaint suggests that his transfer was

occasioned by his alleged participation in a prison

riot, which may necessitate a higher level of proce-

dure. Stevenson and Manley allege only that they

were transferred without explanation. The Warden

stated in an affidavit attached to his memorandum in

support of the motion to dismiss that Jones’ transfer

to the SHU was due to the fact that he had “very

serious pending charges” and “a number of inmate

disciplinary infractions.” The Warden also stated that

Stevenson and Manley were housed in the SHU

based on their “potential ... to again receive a sen-

tence of death.” Accordingly, the District Court should

examine the asserted purposes for appellants’ deten-

tions, and determine whether sufficient process has

been afforded.

In considering the asserted rationale for placing

pretrial detainees in restricted housing, courts should

be mindful of our pronouncement in Shoats: “Shoats

App. 18

could conceivably be held in administrative custody

merely because his prior crimes reasonably fore-

shadow future misconduct.” Shoats, 213 F.3d at 146.

This consideration is consistent with the Supreme

Court’s emphasis on the principle that “we are unwill-

ing to substitute our judgment on these difficult and

sensitive matters of institutional administration and

security for that of ‘the persons who are actually

charged with and trained in the running’ of such

facilities.” Block v. Rutherford, 468 U.S. 576, 588, 104

S.Ct. 3227, 82 L.Ed.2d 438 (1984) (quoting Bell, 441

U.S. at 562, 99 S.Ct. 1861).

In Bell, the Supreme Court instructed that if

there is a reasonable relationship between the par-

ticular condition or restriction of pretrial detention

and a legitimate governmental objective, then that

condition, “without more,” does not infringe upon a

detainee’s constitutional rights. Bell, 441 U.S. at 539,

99 S.Ct. 1861. In this case, at the motion to dismiss

stage, it is not possible to discern whether the rela-

tionship between the appellants’ detention in the

SHU and a legitimate governmental objective is

reasonable. Such a determination may be properly

made on a motion for summary judgment, at which

point the Warden must come forward and demon-

strate the governmental! objective in question.

IV.

Warden Carroll asserts that he is entitled to

qualified immunity on the grounds that even if the

App. 19

facts alleged show a violation of a constitutional

right, that right was not clearly established. Saucier

v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150

L.Ed.2d 272 (2001) (“The relevant, dispositive inquiry

in determining whether a right is clearly established

is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he

confronted.”). The District Court dismissed the com-

plaint on the merits and therefore did not reach the

issue of qualified immunity. It is not necessary for us

to resolve this question now. We leave it to the Dis-

trict Court to consider qualified immunity on remand.

Under the liberal construction of complaints

afforded to pro se prisoner plaintiffs, we find that the

complaint challenges the reasonable relationship of

the appellants’ confinement to a legitimate govern-

ment objective and alleges impermissible punishment

of pretrial detainees. The complaint alleges depriva-

tions suffered by the appellants and compares their

living conditions to those of the general prison popu-

lation. The appellants asserted that they had sought,

but been refused, an explanation for their placement

in the SHU. Accordingly, the complaint alleges suffi-

cient facts to survive the motion to dismiss. We will

vacate the dismissal of the complaint and remand the

case to the District Court.

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DAVID STEVENSON, )

MICHAEL MANLEY, and )

MICHAEL L. JONES, )

Plaintiffs, ) Civil Action No.

) 04-139-KA.J

)

THOMAS CARROLL,

Defendant.

MEMORANDUM ORDER

(Filed Dec. 7, 2004)

I. INTRODUCTION

Presently before me is a Motion to Dismiss

(Docket Item [“D.I.”] 24) and a Motion for a Protective

Order (D.]. 26) filed by Thomas Carroll (“Defendant”).

Also before me is an Amended Motion for Order to

Show Cause and a Temporary Restraining Order (D.I.

14) and a Motion to Compel Discovery (D.I. 31) filed

by David Stevenson, Michael Manley, and Michael L.

Jones (collectively “Plaintiffs”). Plaintiffs, who are

inmates at the Delaware Correctional Center (the

“DCC”), brought this action under 42 U.S.C. § 1983

alleging violations of their rights under the Eighth

and Fourteenth Amendments to the United States

Constitution. (D.I. 1-4.) Jurisdiction is proper under

28 U.S.C. § 1331. For the reasons that follow, Defen-

dant’s Motions to Dismiss will be granted and the

remaining Motions will be dismissed as moot.

App. 21

Il. BACKGROUND

The Plaintiffs had been sentenced to death by the

Superior Court of Delaware. (D.I. 4, Ex. 1 at 3.) On or

about May 30, 2001, however, the sentences were

vacated and the case was remanded to the Superior

Court for review of the sentences. Plaintiffs were then

moved from the death-row tier of the DCC to a more

secure section for pre-trial detainees.’ (Jd.) At the

time of the filing of the Complaint, Plaintiffs had

been housed in the more restrictive section for 32

months. (/d. at 4.) Plaintiffs assert that they have

never been given an explanation as to why they have

been placed in their more restrictive housing within

the prison. (Jd.) Plaintiffs wrote to Defendant, the

Warden of the prison, to complain about their as-

signment to the restrictive section of pre-trial housing

but they did not receive a reply. (/d. at 2.)

' There appears to be a disagreement between Defendant

and Plaintiffs over whether the area in which Plaintiffs were

housed is considered isolation. (See D.I. 25, Ex. A at 1.) Addi-

tionally, Plaintiffs list a number of rules and restrictions that

are enforced in their housing area to highlight the differences

between their housing section and the normal pre-trial housing

section. (D.I. 4, Ex. 1 at 3.) As Plaintiffs do not allege that the

prison conditions alone are a violation of their constitutional

rights, but rather allege that the decision to house them there is

a such a violation, an exact understanding of their present

housing situation is not required.

App. 22

Ill. STANDARD OF REVIEW

In deciding a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), the factual

allegations in the complaint must be accepted as true.

Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam).

This is especially true where, as here, the complaint

is filed pro se. Estelle v. Gamble, 429 U.S. 97, 106

(1976) (citations omitted). A pro se complaint can only

be dismissed for failure to state a claim if it appears

“beyond doubt that a plaintiff can prove no set of facts

in support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

However, broad, unsupported allegations do not

preclude dismissal and do not constitute a cause of

action. Signore v. City of McKeesport, 680 F. Supp.

200, 203 (W.D. Pa. 1988), aff’d, 877 F.2d 54 (3d Cir.

1989).

IV. DISCUSSION

Plaintiffs argue that their assignment to the

more restrictive section of pre-trial housing, without

explanation, is a violation of their constitutional

rights under 42 U.S.C. § 1983. (D.I. 4.) The Supreme

Court has held, however, that “[ilt is plain that the

transfer of an inmate to less amenable and more

restrictive quarters for nonpunitive reasons is well

within the terms of confinement ordinarily contem-

plated by a prison sentence.” Hewitt v. Helms, 459

U.S. 460, 468 (1983). The Court has further stated

“that federal courts ought to afford appropriate

App. 23

deference and flexibility to state officials trying to

manage a volatile environment. ... Such flexibility is

especially warranted in the fine-tuning of the ordi-

nary incidents of prison life, a common subject of

prisoner claims.” Sandin v. Conner, 515 U.S. 472,

482-483 (1995). More specifically, this court has held

that the transfer of an inmate from general popula-

tion to “administrative segregation without being

given notice and an opportunity to argue against the

transfer” is not a violation of the inmates constitu-

tional rights. Brown v. Cunningham, 730 F. Supp.

612, 614 (D. Del. 1990).

Looking at the case law, it is evident that Plain-

tiffs have failed to state a claim upon which relief can

be granted. The prison’s decision to place Plaintiffs in

a more secure housing section is exactly the type of

decision the Supreme Court noted when it held that

federal courts should defer to prison officials with

respect to managing the “ordinary incidents of prison

life. Sandin, 515 U.S. at 482-483. Therefore, even

assuming all the facts pleaded in the Plaintiffs’

Complaint are true, they have failed to state a claim

upon which relief can be granted. Consequently,

Defendant’s Motion to Dismiss will be granted and all

other motions will be dismissed as moot.

Vv. CONCLUSION

Accordingly, it is hereby ORDERED that Defen-

dants’ Motion to Dismiss (D.I. 24) is GRANTED, and

Defendant’s Motion for a Protective Order (D.I. 26),

App. 24

Plaintiffs’ Amended Motion for Order to Show Cause

and Temporary Restraining Order (D.I. 14) and

Motion to Compel Discovery (D.I. 3i) are all dis-

missed as moot.

/s/ Kent A. Jordan

UNITED STATES DISTRICT JUDGE

December 7, 2004

Wilmington, Delaware

App. 25

ORIGINAL

FORM TO BE USED BY A PRISONER IN FILING

A COMPLAINT UNDER THE CIVIL RIGHTS ACT,

42 U.S.C. §1983

UNITED STATES DISTRICT COURT

DISTRICT OF DELAWARE

David Stevenson, Michael Manley, Michael L. Jones

(Enter above the full name of the plaintiff in this action)

Thomas Carroll, Warden of Delaware Correctional

Center

(Enter above the full name of the defendant(s) in this

action)

§ Previous lawsuits

A. Have you begun other lawsuits in state

or federal courts dealing with the same

facts involved in this action or other-

wise relating to your imprisonment?

YES [X] NO[ ]

B. If your answer to A is yes, describe the

lawsuit in the space below. (If there is

more than one lawsuit, describe the ad-

ditional lawsuits on another piece of

paper, using the same outline).

1. Parties to this previous lawsuit

Plaintiffs (see attached.)

App. 26

Defendants (see attached.)

2. Court (if federal court, name the dis-

trict; if state court, name the county)

(see attached)

3. Docket number (see attached)

4. Name of judge to whom case was as-

signed (see attached)

5. Disposition (for example: Was the case

dismissed? Was it appealed? Is it still pend-

ing?)

(see attached)

6. Approximate date of filing lawsuit____

(see attached)

7. Approximate date of disposition

(see attached)

Is there a prisoner grievance procedure in

this institution? YES [X] NO[ ]

Did you present the facts relating to your

complaint in the state prisoner grievance

procedure? YES [X] NO[ }

If your answer is YES,

1. What steps did you take?

(see attached)

2. What was the result? (see attached)

If your answer is NO, explain why not_

N/A

III.

App. 27

E. If there is no prison grievance procedure in

the institution, did you complain to prison

authorities? YES [X] NO[ ]

F. If your answer is YES,

1. What steps did youtake? «ss

(see attached)

2. What was the result?

(see attached)

Parties

(In item A below, place your name in the

first blank and place your present address in

the second blank. Do the same for additional

plaintiffs, if any.)

A. Name of Plaintiff David Stevenson #317036,

Michael Manley #338485, Michael L. Jones

#417267

Address Delaware Correctional Center, 1181

Paddock Road, Smyrna, DE 19977

(In item B below, place the full name of the de-

fendant in the first blank, his official position in

the second blank, and his place of employment in

the third blank. Use item C for the names, posi-

tions, and place of employment of any additional

defendants.)

B. Defendant_Thomas Carroll is employed

as warden at Delaware Correc-

tional Center 1181 Paddock Road, Smyrna,

DE 19977

App. 28

C. Additional Defendants

IV. Statement of Claim

(State here as briefly as possible the facts of your

case. Describe how each defendant is involved.

Include also the names of other persons involved,

dates, and places. Do not give any legal argu-

ments or cite any cases or statutes. If you intend

to allege a number of related claims, number and

set forth each claim in a separate paragraph. Use

as much space as you need. Attach extra sheet if

necessary.)

(see attached)

V. Relief

(State briefly exactly what you want the court to

do for you. Make no legal arguments. Cite no

cases or statutes.)

(see attached)

Signed this ___ day of |

(Signature of Plaintiff)

App. 29

I declare under penalty of perjury that the fore-

going is true and correct.

Date

(Signature of Plaintiff)

Previous Lawsuits

Parties to this previous lawsuit

Plaintiff: David Stevenson #317036

Defendant: Thomas Carroll, warden of

Delaware Correctional Cen-

ter (DCC), Joe Hudson, Sup-

port Services Manager at

D.C.C.

Court: United States District Court,

District of Delaware.

Docket number: CA 00-732 KAJ

Name of judge to whom case was as-

signed: Judge Kent A. Jordan

Disposition: still pending

Approximate date of filing lawsuit: Au-

gust 9, 2000

Approximate date of disposition: still

pending

What steps did you take? | filed a griev-

ance July 6, 2003 to get an explanation

as to why I’m in isolation. I only filed a

grievance to see if I was going to get

App. 30

some kind of response from the admini-

stration.

What was the result? I was told, “In-

mates do not have the choice of where

they are housed” and “submit a request

to see your counselor and discuss it with

him/her.”

What steps did you take? The grievance

procedure at D.C.C. does not handle

housing issues. I wrote letters to: War-

den Thomas Carroll, Deputy Warden

Lawrence McGuigan, Captain Joseph

Belanger and Captain Clyde Sagers, and

Counselor Marissa McFadden. I asked

each person, why was I in isolation,

when am I getting out?

What was the result? I never received a

response from Warden Thomas Carroll

or Deputy Warden Lawrence McGuigan.

I received verbal responses from Cap-

tains Joseph Belanger and Clyde

Sagers. Both said they did not know

why I’m here in isolation and when I

would be allowed out. I received a writ-

ten response from Counselor Marissa

McFadden that said she didn’t have any

classification papers on me and that I’m

in isolation because I’m unsentenced. I

received a verbal response from her that

she does not know why I’m being kept in

isolation.

App. 31

UNITED STATES DISTRICT COURT

DISTRICT OF DELAWARE

Plaintiff — Michael L. Jones

Defendant Thomas Carroll

I].

Previous lawsuits

Parties to this previous lawsuit

Plaintiffs — Michael L. Jones

Defendants — Thomas Carroll

Court United States District Court

Docket number 03-1139-GMS

Name of Judge to whom case was assigned —

Judge Gregory M. Sleet

Disposition — still pending

Approximate date of filing lawsuit —- Decem-

ber 2, 2003

Approximate date of disposition — stil] pend-

ing

What steps did you take? N/A

What was the result? N/A

if your answer is NO, explain why not — A

disiplinary action is not grievable.

What steps did you take? I wrote the Warden

Thomas Carroll, deputy Warden Lawrence

McGuigan, Captain Belinger, Captain Sagers,

and SHU Counsler Marissa McFadden.

ITI.

IV.

App. 32

2. What was the result? There were none, SHU

counsler Marissa McFadden said she has no

idea why.

A. Name of Plaintiff — Michael L. Jones

Address — Delaware Correctional Center

1181 Paddock Rd. Smyrna Del 19977

B. Defendant — Thomas Carrol] is employed as

The Warden at Delaware Correctional Cen-

ter Smyrna Delaware

Statement of Claim

The plaintiff Michael L. Jones was moved from

ganger hill prision in Wilmington Delaware on

feb. 19, 2003 along with several other inmates for

an alledge riot to Smyrna DCC SHU. Plaintiff

never recieved a hearing nor was he able to de-

fendant himself against the said accusations. In

July of 2003 one of the alledge partakers (Robert

Garvey) was moved back to gander hill prison

regular population, in August the rest of the

alledge partakers (Russell Grimes and Jose

Pena) were moved to B-Building pre-trial at DCC

except for plaintiff. Plaintiff remains in the SHU

at DCC which is for inmates which have discipli-

nary problems or protected custody. Since feb. 20,

2003 plaintiff has wrote the Warden Thomas

Carroll, deputy Warden Lawrence McGuigan,

Captain Bellinger, Captain Sagers and SHU

Counsler Marissa McFadden trying to get an ex-

planation as to why he is in the SHU. None of

plaintiffs letters were responded to. Plaintiff has

never had a hearing with staff as to why he had

IV.

App. 33

to remain in the SHU. The Warden Thomas Car-

roll is to be held accountable for all actions.

Signed this 25 day of febuary 2004

/s/ Michael L. Jones

I declare under penalty of perjury that the fore-

going is true and correct.

February 25, 2004 /s/ Brian D. Engrem

Notary

2-25-04

Statement of Claim

Plaintiffs David Stevenson and Michael

Manley are incarcerated at Delaware Correc-

tional Center.

Defendant Thomas Carroll is employed by

the State of Delaware at Delaware Correc-

tional Center.

Defendant Thomas Carroll is the Warden in

charge of al] operations at Delaware Correc-

tional Center. He is sued in his individual

and official capacities.

Defendant has acted and continues to act

under color of State Law at all times rele-

vant to this complaint.

The Plaintiffs were sentenced to Death by

the Superior Court of Delaware on or about

January 10, 1997.

LO.

App. 34

Through the appeals process in State courts,

the Plaintiffs sentence was vacated and con-

victions remanded for review by a new Supe-

rior Court Judge on or about May 30, 2001.

As was standard practice at Delaware Cor-

rectional Center the Plaintiffs were returned

to pre-trial detainee status and moved off of

the Death Row tier.

Instead of being moved to pre-trial, as other

inmates were in the same situation, plain-

tiffs were moved to an isolation tier for pre-

trial inmates

The pre-trial isolation tier was established

for inmates who had discipline problems in

normal pre-trial, protective custody, and for

observation of new inmates and transfers.

Plaintiffs weren’t given an explanation for

the punitive move.

Plaintiffs wrote Defendant Thomas Carroll

and his subordinates and weren't given any

explanations.

The Rules in isolation are as follows:

a) Recreation for about an hour three days

out of a week. Which means out of cell

three hours a week. (45 minutes recrea-

tion and 15 minutes shower.)

b) Inmates are handcuffed to and from the

steel cage recreation area and to and

from the shower.

Cc)

| a J

App. 35

One 45-minute visit a week. Inmates are

handcuffed and shackled at visits. Non-

contact in a protective booth.

One 10-minute phone call a week.

Law Library is via mail and there is at

least a twenty four hour wait on all in-

formation.

Legal calls are at least a twenty four

hour wait.

No religious services.

There isn’t a light switch in cells. Offi-

cers control the lights. Furthermore,

there isn’t any individual cell light

switches. Either all the cell lights are on

or off.

Pre-trial isolation and the sanction tier

are the only housing areas where televi-

sions are banned.

Commissary is every two weeks. In-

mates can spend fifteen dollars each

time. Included in the fifteen dollars are

stamps, paper, envelopes, hygiene prod-

ucts, and food. No allowances are made

even though the institution stopped

mailing three free letters a week for in-

mates. All items aren’t available to isola-

tion inmates.

There aren't any exercise opportunities

in the recreation yard inside or outside.

App. 36

Inmates can’t possess any art supplies,

playing cards, etc., or any mind stimula-

tion activities.

The Rules for every Pre-trial inmate not in

isolation:

Recreation every day. Inmates are only

locked in cells for institutional counts

and night lock-in.

Inmates are only handcuffed when going

to court.

Two-45 minute, or one-90 minute visit a

week. contact.

Two-10 minute phone calls a week.

Law Library is available everyday. In-

mates do research on their own at the

Library.

Legal Calls available upon request.

Religious services via television.

Light switches in cells.

Commissary is every week. Inmates can

spend forty dollars a week. All items are

available.

Recreation equipment is available.

Inmates can have art supplies, playing

cards and board games to stimulate the

mind.

14,

15.

16.

App. 37

Since the Plaintiffs have been in isolation

(approximately 32 months to date) they have

not had a hearing about their stay in isola-

tion, have not received any reason via pa-

perwork as to why they’re in isolation, have

not had an opportunity to confront the deci-

sion maker, orally or in writing.

There also aren’t any rules, in. writing, from

the institution informing inmates how to

leave isolation.

Plaintiff David Stevenson was moved to

normal pre-trial for a month from December

2003 to January 2004. He was moved myste-

riously there and moved mysteriously back,

still without an explanation.

At the time of this complaint Plaintiffs David

Stevenson and Michael Manley are still in

isolation and still haven’t received a reason

or cause from Defendant Thomas Carroll.

V. Relief

Plaintiffs want to be moved out of isolation

and to normal pre-trial until the conclusion

of their criminal cases and they are either

sentenced or released.

Plaintiffs want to be awarded monetary

damages of at least $100,000 a month, for

each Plaintiff, for every month the Court

deems the Plaintiffs were illegally kept in

isolation, for mental abuse and intentional

distress, and for deliberate indifference by

Defendant Thomas Carroll.

App. 38

Establish a system to inform inmates why

they were put into isolation, who made the

decision to put them in isolation, and a

chance to appeal the decision to a non-

partisan official.

Establish rules for how long any pre-trial

inmate can be put into isolation.

Establish a system that inmates kept in iso-

lation because of lack of space in normal pre-

trial get all the rights of normal pre-trial un-

til they can be moved.

Make procedural safeguards.

Any other relief the Court deems necessary.

Issue and Injunction ordering Defendant

Thomas Carroll:

1. To immediately give Plaintiffs normal

pre-trial privileges as set forth in this

complaint including personal televisions,

complete commissary item access, and

recreation time.

2. Move Plaintiffs to normal pre-trial when

space is awailable.

3. To retrain from retaliatory practices by

his staff.

4. To immediately start process of moving

all pre-trial inmates out of isolation who

have been housed there more than 30

days.

App. 39

5. Immediately establish a 30 day cut off

for pre-trial inmates yearly stay at any

one time in isolation.

Signed this 25 day of February, 2004

/s/ David Stevenson

/s/ Michael R. Manley

/s/_ Michael L. Jones

I declare under penalty of perjury that the fore-

going is true and correct.

2-25-04 _ /s/ David Stevenson

(Date) /s/ Michael Manley

/s/ Michael L. Jones

/s/ Brian D. Engrem _

Notary

2-25-04

App. 40

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DAVID STEVENSON,

MICHAEL MANLEY, and

)

MICHAEL JONES )

Plaintiffs, C.A. No.04-139-KAJ

v. ) Jury Trial Demanded

THOMAS CARROLL

Defendant. )

DEFENDANT’S MEMORANDUM OF POINTS

AND AUTHORITIES IN SUPPORT OF HIS

MOTION TO DISMISS

(Filed Jul. 9, 2004)

1. David Stevenson, Michael Manley and Mi-

chael Jones (“plaintiffs”) are detainees incarcerated

and under the supervision of the Delaware Depart-

ment of Correction (“DOC”) within the Delaware

Correctional Center (“DCC”) Smyrna, Delaware.

2. On or about March 4, 2004, the plaintiffs

filed a complaint with leave to proceed in forma

pauperis pursuant to 42 U.S.C. §1983, alleging

Eighth and Fourteenth Amendment Due Process

violations. (D.I.##1-4). Specifically, the plaintiffs

allege that subsequent to their death sentences being

overturned in May, 2001, the plaintiffs were trans-

ferred from death row to “an isolation tier for pre-

trial inmates” in DCC’s SHU’s pre-trial unit. (Com-

plaint, passim). The plaintiffs claim that they should

App. 41

have been moved to the less restrictive B building

pre-trial unit rather than SHU’s pre-trial isolation

which houses inmates who have “disciplinary prob-

lems.” Id. For relief, the plaintiffs request monetary

damages as well as injunctive relief. Jd.

3. In deciding a motion to dismiss under Fed.

R.Civ. P. 12 (bX6), the Court must accept as true all

material allegations of the complaint and it must

construe the complaint in favor of the plaintiff. See

Trump Hotels & Casino Resorts, Inc. v. Mirage Re-

sorts, Inc., 140 F.3d 478, 483 (3d Cir.1998). A com-

plaint should be dismissed only if, after accepting as

true all of the facts alleged in the complaint, and

drawing all reasonable inferences in the plaintiffs

favor, no relief could be granted under any set of facts

consistent with the allegations of the complaint. Jd.

Claims may be dismissed pursuant to Rule 12(b)(6)

motion only if the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Where

the plaintiffs are pro se litigants, the court has an

obligation to construe the complaint liberally. Haines

v. Kerner, 404 U.S. 519, 520 (1972). Additionally, a

claim under 42 U.S.C. §1983 “must allege conduct

which deprives the victim of a right or privilege

secured by the Constitution or laws of the United

States.” Freedman v. City of Allentown, 853 F.2d 1111,

1114 (3d Cir.1988) (citations omitted).

4. Plaintiffs allege their Fourteenth Amend-

ment due process rights were violated when they

App. 42

were moved “without any explanation” to SHU’s pre-

trial unit after their death sentences were over-

turned. (Complaint, passim). Analysis of plaintiffs’

due process claims begins with determining whether

a constitutionally protected liberty interest exists.

Sandin v. Connor, 515 U.S.472 (1995); Hewitt v.

Helms, 459 U.S.460 (1983). “Liberty interests pro-

tected by the Fourteenth Amendment may arise from

two sources — the Due Process Clause itself and the

laws of the States. Hewitt, 459 U.S. at 466. The

Supreme Court has explained that liberty interests

protected by the Due Process Clause are limited to

“freedom from restraint” which imposes an atypical

and significant hardship in relation to the ordinary

incidents of prison life.” Sandin, 515 U.S. at 483-84.

Reclassification to a stricter housing unit and its

consequent loss of privileges “falls within the ex-

pected parameters of the sentence imposed by a court

of law.” Id. at 485. Moreover, the Delaware District

Court has determined that the Department of Correc-

tion statutes and regulations do not provide prisoners

with liberty or property interests protected by the

Due Process Clause. Carrigan uv. State of Delaware,

957 FSupp.1376 (D.Del.1997). (Inmates may be

administratively transferred pending classification or

reclassified to more restrictive security levels for

violations of the Rules of Conduct. DOC Rules of

Conduct, Number 4.2) DOC Procedure 3.31 explicitly

states that the warden has virtually unlimited discre-

tion in placing inmates within the prison in “any

security/custody level.” See, i.e, Brown v. Cunning-

ham, 730 F.Supp.612, 614 (D.Del.1990) (stating that

App. 43

plaintiffs transfer from general population to admin-

istrative segregation, without being given notice and

opportunity te challenge it, was not violation of

plaintiffs liberty interest). Neither Delaware law nor

DCC regulations create a liberty interest in a pris-

oner’s classification within an institution. 11 Del.C.

§6529(e). Defendants assert plaintiffs’ transfer from

the death row tier to SHU’s pre-trial unit was within

the normal limits or range of custody [their] convic-

tions authorizes the State to impose. Meachum v.

Fano, 427 U.S. 215, 225 (1976).

Contrary to plaintiffs’ allegations, they are not

housed in isolation. (See affidavit of Thomas Carroll

attached hereto Exh.A-1). Admittedly, SHU pre-trial

is more restrictive than B buiiding pre-trial; however,

the plaintiffs are not in isolation; nor are they denied

access to their attorneys, the law library, commissary,

recreation or the grievance procedure. (A-2). The

plaintiffs are housed in SHU pre-trial based on the

security needs of the institution and the determina-

tion that the plaintiffs present a significant security

risk if housed in the B building pre-trial unit. (A-1).

Once re-sentenced, the plaintiffs will be classified to a

security level pursuant to DOC guidelines and proce-

dures. (A-2). Accordingly, since plaintiffs’ transfer to

another unit within the DCC does not “impose an

atypicai and significant hardship in reijation to the

ordinary incidents of prison life,” their complaint

should be dismissed pursuant to Fed.R.Civ.P.12(b)(6)

for failure to state a claim upon which relief may be

granted.

App. 44

5. Plaintiffs also allege that defendant Carrol]

has demonstrated deliberate indifference regarding

their conditions of confinement in violation of their

Eighth Amendment right to be free from cruel and

unusual punishment. (Complaint, passim). The

Supreme Court has held that conditions of confine-

ment amount to cruel and unusual punishment only

where they “involve the wanton and unnecessary

infliction of pain” or are “grossly disproportionate to

the severity of the crime warranting imprisonment”

or deprive inmates of the minimal civilized measure

of life’s necessities.” Rhodes v. Chapman, 452 U.S.

337, 347 (1981).

(Conditions that cannot be said to be cruel

and unusual under contemporary standards

are not unconstitutional. To the extent that

such conditions are restrictive and even

harsh, they are part of the penalty that

criminal offenders pay for their offenses

against society.

Id at 347. While inmates retain some constitutional

rights while incarcerated, by virtue of their conduct

and resultant sentence, they must live in a restrictive

environment. Wilson v. Seiter, 501 U.S. 294, 304

(1991). Under Wilson, in order to establish an Eighth

Amendment constitutional violation based on the

conditions of their confinement, plaintiffs must prove

both an objective element — that the deprivation was

sufficiently serious, and a subjective element that a

prison official acted with a sufficiently culpable state

of mind.” Jd at 297. The minimal requisite state of

App. 45

mind for an Eighth Amendment violation is deliber-

ate indifference. Jd. The Court further stated that a

constitutional violation will be found only when the

conditions of confinement “have a mutually enforcing

effect that produces the deprivation of a single identi-

fiable human need such as food, warmth, or exercise,”

and that “[n)othing so amorphous as ‘overall condi-

tions’ can rise to the level of [such a violation] when

no specific deprivation of a single human need exists.

Id. at 303-04.

6. Defendant addresses plaintiffs’ various

allegations below and conclude that plaintiffs fail to

identify a constitutionally protected right enforceable

under 42 U.S.C. § 1983. In brief, the plaintiffs list

general complaints regarding the MSU’s pre-trial

unit’s overall conditions, but fail to identify a time or

date when they were deprived of a “single identifiable

human need.” Wilson, 501 U.S. at 304. Moreover,

plaintiffs fail to allege defendant’s personal involve-

ment in any identified conduct. The plaintiffs claim

that conditions in SHU’s pre-trial unit only allow

them one hour of recreation three days a week, one

forty-five minute visitor meeting a week, one ten

minute phone call a week, a 24 hour wait for law

library information, commissary every other week

and no vegetarian meals. (Complaint, passim). Plain-

tiffs further contend that other inmates who are

moved from death row to pre-trial are moved to B

building pre-trial, a less restrictive unit. While this

statement may be true, it is also true that DCC

personnel considered the plaintiffs security risks

App. 46

which resulted in their being housed in SHU pre-

trial. Admittedly, plaintiffs’ movements and activities

are more resricted in SHU’s pre-trial unit; however,

plaintiffs still enjoy many of the privileges and activi-

ties that are permitted in other areas of the facility.

“Nothing so amorphous as ‘overall conditions’ can rise

to the level of cruel and unusual punishment when no

specific deprivation of a single human need exists.”

Wilson, 501 U.S. at 305; see also, Hoover v. Watson,

886 F.Supp 410, 416-417 (D.Del. 1995), aff’d 74 F.3d

1226 (3d Cir. 1995). Plaintiffs have failed to demon-

strate the constitutional deprivation they suffered or

how defendant Carroll acted with a _ sufficiently

culpable state of mind. Piaintiffs’ allegations do not

demonstrate wanton and unnecessary infliction of

pain nor deliberate indifference on the part of defen-

dant as to the state of their confinement. Despite less

than perfect conditions at SHU’s pre-trial unit plain-

tiffs have not been deprived of an identifiable human

need. Plaintiffs’ unsubstantiated allegations amount

to nothing more than bald complaints concerning the

overall conditions in MSU pre-trial. The presence of

such burdens fails to establish a claim deemed justi-

ciable by this Court making dismissz] appropriate

pursuant to Fed. R. Civ. P. 12(b)(6).

7. Assuming that the plaintiff may be attempt-

ing to hold the defendant liable based upon his su-

pervisory position, it is well established that liability

under 42 U.S.C.§1983 may not be predicated upon a

theory of respondeat superior. Rizzo v. Goode, 423

U.S. 362 (1976); Gay v. Petsock, 917 F.2d 768 (3d Cir.

App. 47

1990); Heine v. Receiving Area Personnel, 711 F.Supp.

178 (D.Del. 1989). To hold defendant liable, plaintiffs

must: 1) identify with particularity what the defendant

failed to do that demonstrates deliberate indifference:

and 2) demonstrate a close causal relationship be-

tween the identified deficiency and plaintiffs’ ulti-

mate injury. Sample v. Diecks, 885 F. 2d 1099, 1118

(3d Cir. 1989); City of Canton v. Harris, 489 U.S. 378

(1989). Plaintiffs in this action have failed to show

that the defendant exhibited deliberate indifference,

or any other such acts which were related to any

alleged injury which the plaintiffs claim they suf-

fered. Accordingly, it is not surprising that plaintiffs

fail to demonstrate any affirmative role on the part of

the defendant that is in any way related to a Consti-

tutional deprivation.

8. Moreover, plaintiff cannot maintain an action

against the State defendant in his individual capac-

ity. The plaintiff’s complaint should be dismissed

under the doctrine of qualified immunity. Govern-

ment officials performing discretionary functions are

immune from liability for damages, provided that

their conduct does not violate “clearly established

statutory or constitutional rights of which a reason-

able person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). A right is “clearly estab-

lished” when “[t}he contours of the right [are] suifi-

ciently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

App 13

Additionally, a violation of the Eighth

Amendment cannot be predicated on mere neglhgence;

it requires a finding of a culpable mental state on

part ol prison ofhcal Moore

1993) Haypood f

the

lartler UK fk 20 H42

Younper, 769 F. 2d 1350

_—

) ‘Theretore to tre

extent plaintiff

piheie Lhiat Liie ced

ndant neted

nepypupently (lhere

tin rhi¢eir Cog}l bittitiogs ‘Til ic i bain

style i) e Chinchel / f

; 4 | ' ; 7’ ‘ ir | ; ‘

| ‘ ’ I

App. 49

iny form applicable to the facts alleged in the present

complaint. Consequently, sovereign immunity has not

been waived in the present actior ind plaintiff suit

ivall t Line defendant I} ni ificial ( pacity

pie’? ; ' 1%) if 11) . ] il t

j if) Lf i a af err md ( ery

j j j r} Ali I meorivat j

; f ; $ } | yr yf } ‘ | J

j ‘ ,; }

App. 50

citizens of another State.” Edelman v. Jordan, 415

U.S. 651, 662-63 (1974).

The Eleventh Amendment stands “for the consti-

tutional principle that State sovereign immunity

limit{s] the federal courts’ jurisdiction under Article

111.” Seminole Tribe of Florida v. Florida, 517 U.S 44

1996). The United States Conyress can waive the

bate overeign immunity and therefore, its Elev

giv wnendment immunity through the Fourteenth

nendment howevey only a clear indication. of

re pradeeyr } iiVe iyi Late pnmunity will

i¢ ) icy if if inte if {‘7il [)é

App. 51

for acts done in good faith, without gross or wanton

negligence, and arising out of and in connection with,

the performance of official discretionary duties. 10

Del C. §4001(3); see, Smith v New Castle County Vo-

Tech, 574 F. Supp. 813, 820 (D.Del. 1983). The defen-

dant is entitled to good faith immunity under 10 Del

C. $4001. In order for the defendant to be held liable,

plaintiffs must establish that his acts either were not

in connection with the performance of any official

duty ... not done in good faith ... or constituted

gross or wanton negligence. Plaintiffs have been

unable to meet these criteria and therefore, dismissal

iS now appropriate

14. As amended 28 U.S. > 191 5(eK 2K BO

mandates dismissal) of in forma pauperis action

determined to he frivolous hy the Court Al} of thie

lepal claim raised by plaimtill are fare dectsi by

the well-developed manifest case law decisions of thi

{ int, the ‘Th i { t ¢ rt | pepo i} i! l !

trate oreme Court pid th ort yt 0d bal

1 De Dhies f ;

App. 52

STATE OF DELAWARE

DEPARTMENT OF JUSTICE

/s/ Richard Hubbard

Richard W. Hubbard, 1D#2442

Department of Justice

Deputy Attorney General

Carvel State Building

820 N. French Street, 6th Floor

Wilmington, De 19801

(302) 577-8400

Dated: July 9th, 2004

Attorney for Defendant

Thomas Carroll

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LPP ETIRSAVEIT OF rHICIMIA ( AHRHOTL. |

;

App. 53

the Delaware Correctional Center (“DCC”). I have

been employed by the DOC since April 1,1980, and in

my present capacity since October 1, 2001. My duties

include responsibility for the management and opera-

tion of the DCC.

2. I have read the Plaintiffs’ Complaint and

dispute the allegations therein.

3. Plaintiffs’ Stevenson and Manley were sen-

tenced to death in January, 1997; however, their

sentences for conviction of Murder lst Degree were

subsequently overturned in May, 2001. Presently, the

plaintiffs are awaiting a new penalty hearing. Plain-

tiff Jones also has pending charges including At-

tempted Murder and Murder Ist Degree. Specifically,

the plaintiffs are housed in SHU Building #18, D tier,

they are not housed in isolation as they allege in their

Complaint. An individual! is considered for housing in

the SHU pre-trial housing area based on the security

needs of the institution and the determination that

the individual presents a significant security risk if

housed in the B Building pre-trial unit. The plaintiffs

are viewed as security msks if housed in B Building

pre-trial unit. Based on the potential for plaintiffs’

Stevenson and Manley to apain receive a sentence of

death, it was determined that they presented a

nificant risk if housed in the B Building pre-trial

unit. Based on this determination, plaintiffs’ Steven

and Manley were assigned to the SHU pre-tnal

housing area In addition to very serous pending

ryt plaintiff Jones has had a number of inmate

App. 54

determination that he was inappropriate for place-

ment in the B Building pre-trial unit. Based on this

determination and the prevailing security needs of

the institution, plaintiff Jones was placed on the SHU

pre-trial housing area.

4. Although SHU’s pre-trial is more restrictive

than B Building pre-trial, inmates are not denied

access to their attorneys, the law library, commissary,

recreation or the grievance procedure as alleged by

the plaintiffs. One sentenced, the plaintiffs will be

classified to a security level pursuant to Department

of Correction guidelines and procedures.

/s/ Thomas Carroll

Thomas Carroll

SWORN AND SUBSCRIBED before me this Ist

day of July, 2004.

/s/ Michael Little _

Notary

App. 55

CERTIFICATE OF MAILING

AND/OR DELIVERY

The undersigned certifies that on July 9th, 2004,

he caused the attached Defendant’s Memorandum of

Points and Authorities in Support of His Motion to

Dismiss to be delivered to the following persons in the

form and manner indicated:

NAME AND ADDRESS OF RECIPIENT(S):

David Stevenson, Inmate

SBI #00317036

Michael Manley, Inmate

SBI #00338485

Michael L. Jones, Inmate

SBI #00417267

Delaware Correctional Center

1181 Paddock Road

Smyrna, DE 19977

MANNER OF DELIVERY:

_ One true copy by facsimile transmission to

each recipient

¥ Two true copies by first class mail, postage

prepaid, to each recipient

Two true copies by Federal Express

Two true copies by hand delivery to each recipi

App. 56

/s/ Richard Hubbard

Richard W. Hubbard, I.D. #2442

Deputy Attorney General

Carvel State Office Building

820 N. French Street, 6th Floor

Wilmington, DE 19801

302-577-8400

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.