# Petition for Writ of Certiorari — Phelps v. Stevenson (No. 07-575) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1645%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text Supreme ( Court U.S. /\ OY - O57 s0ct 29 2M nn OFFICE OF THE CLERK nl e Supreme Court of the Gnited States THOMAS CARROLL, WARDEN OF THE DELAWARE CORRECTIONAL CENTER, Petitioner, V. 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. ll TABLE OF CONTENTS Page Pee SGP IGS BCS IGIN LICL). .ccccscecccccccevcnsscessccsees i ee OE FRU CE LE occ ccc ccccccccccccesevesceceees Vv vais ccncencsvsevesvescevecercrecosoceoses 1 Nees ccciuseoenrncsvosocescsesessesess 1 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED................ (NL ] STATEMENT OF THE CASE.............cccscssceseseess 2 ES, Se 2 ee EIEN, BEDUOIYY . 0c c cc vccrcersesescevescosesccceees 5 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 1V 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 Vi 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 1 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 2 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. 3 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 4 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). 4) 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 6 (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 7 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). 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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) 17 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, 18 730 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 19 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. 20 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. 21 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). 22 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 23 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 24 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. 25 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. 26 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 27 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. ¢ 28 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 v. 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. I. 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. A. 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. B. 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. C. 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. V. 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 ) ) ) We 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) V. 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 I. (Signature of Plaintiff) Previous Lawsuits B. 1. 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. I]. Previous lawsuits A, 2. 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. 5. 9. 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) d) e) f) g) | a J h) 1) yp 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. 1) 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: a) d) t) k) 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. at 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 i 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 ty 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 7 ; 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1645%3A1. Public record. Not legal advice.