Opposition Brief — Phelps v. Stevenson (No. 07-575)

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No. 07-575 sre CE OF THE CLE

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—_

IN THE

Supreme Court of the GAnited States

THOMAS CARROLL, WARDEN,

Petitioner,

V.

DAVID STEVENSON, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRiEF IN OPPOSITION

LEON F. DEJULIUS, JR.

(Counsel of Record)

JEAN M. MOSITES

JONES DAY

500 Grant Street

Suite 3100

Pittsburgh, PA 15219

Tel: 412-394-9528

Counsel! for Respondents

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20002

BEST AVAILABLE COPY

l

QUESTIONS PRESENTED

1. Whether Respondents, as pretrial detainees,

alleged a valid substantive due’ process claim to be

free of punishment sufficient to survive a motion to

dismiss.

2. Whether Respondents, as pretrial detainees,

alleged a valid procedural due process claim based

on the constitutional right to be free from

punishment and to avoid indefinite confinement in

the highly restrictive and allegedly punitive Security

Housing Unit (“SHU”) sufficient to survive a motion

to dismiss.

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................... caduualagiianta 1

TABLE OF AUTHORITIES. ................cccssccocsesssceeeeees iv

BEG 5 RPGs ION ccnctavsuiaanacenetanetidgbcesaapmicseninidenentes 1

COUNTER-STATEMENT OF THE CASE ............... 2

REASONS FOR DENYING THE WRIT OF

EP TENINIIEGS sinstisscvics'csvovicarsecricuislatpnisasesuesbipiacestaelasealaasnidslaiiebies 7

PTFE vincdssstsieiiudicsnisrecenitiaaaaiianlieiiiaaeemeda 9

I. THE THIRD CIRCUITS CONCLUSION

THAT RESPONDENTS ALLEGED A

VALID SUBSTANTIVE DUE PROCESS

CLAIM SUFFICIENT TO SURVIVE A

MOTION TO DISMISS DOES NOT

WARRANT THIS COURT'S REVIEW. ................. 9

A. The Petition Does Not Present A

Certworthy Legal Question............................. 9

B. Respondents Alleged A Factually

Sufficient Substantive Due Process

C. This Petition Presents A Poor Vehicle

To Address Any Substantive Due

I I oil acne nndaenskidddeesds dees 14

ill

TABLE OF CONTENTS

(continued)

Page

Il. THE THIRD CIRCUITS CONCLUSION

THAT RESPONDENTS ALLEGED A

VALID PROCEDURAL DUE PROCESS

CLAIM SUFFICIENT TO SURVIVE A

MOTION TO DISMISS DOES NOT

WARRANT THIS COURT'S REVIEW. ................. 15

A. Respondents Alleged A Valid Due

Process Claim Based On The State’s

Alleged Punishment ....... sR 5 COAT OUT CORED ER 16

B. Respondents Alleged A Valid Due

Process Claim Based On The State’s

Alleged Indefinite, Highly Restrictive

Ca cssddudusnanpcusoesses 18

C. There Is No Circuit Split Regarding

Pretrial Detainees’ Right To Due

Process When Subjected To Highly

Restrictive, Punitive Conditions ................... 21

D. The Minimal Process Afforded By The

Third Circuit Would Not Interfere With

Prison Administration Or Discretion............ 26

CAP IICIRIR EN cnisnsccsavereviversndes NED ANISM 28

1V

TABLE OF AUTHORITIES

Page

Cases |

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

1992 WL 149679 (9th Cir. 1992) «......00...00000. 28

Austin v. Wilkinson, -

372 F.3d 346 (6th Cir. 2004), affd in

part, rev'd in part, 545 U.S. 209 (2005) ........ 23

Bell v. Wolfish, 441 U.S. 520 (1979) .............2.. passim

Bell Atl. Corp. v. Twombly,

550 U.S. __, 127 S. Ct. 1955 (2007) ...6, 10, 11

Benjamin v. Fraser,

264 F.3d 175 (2d Cir. 2001)............ .. 7, 24, 26

Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997)........ 28

Crane v. Logli, 992 F.2d 136 (7th Cir. 1993)........... 22

Evancho v. Fisher, 423 F.3d 347 (8d Cir. 2005)...... 11

Fuentes v. Wagner,

206 F.36 BaD al Cig, QOOO) 2. cecicccccccsccsveccevess 25

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

SEGZZES CHEN Cie: LOGS) i.i.cccccccccnscccsevececocecesccas 28

Getch v. Rosenbach,

700.F. Supp. 1365 (D.N.J. 1988) ................2.. 22

Greenholtz v. Inmates of Neb. Penal & Corr.

Commins: 442 US. | CQ BTG) vvvicsecossscsiecdcceonsers 20

Hewitt v. Helms, 459 U.S. 460 (1983) ........... 7, 15, 16

Hutto v. Finney, 437 U.S..678 (1978) ...............eeeeee 12

Jordan v. Fed. Bureau of Prisons,

191 F. App’x 639 (10th Cir. 2006), cert.

denied, 127 S. Ct. 2875 (2007) :......2.....c0éccccees 27

Jones v. Baker, 155 F.3d 810 (6th Cir. 1998).......... 28

Magluta v. Samples,

Sto F.oG 1269 (llth Cir. 2004)..........506.20.0c05 11

Vv

TABLE OF AUTHORITIES

(continued)

Page

Martucci v. Johnson,

944 F.2d:291 (6th Cir. 1991).........5......c..c0c0000 23

Mathews v. Eldridge, 424 U.S. 319 (1976).............. 16

McMilhan v. Cortland County Corr. Facility,

198 F:3d 234 (table), 1999 WL 753336

Oe II sic sccc ans andadcapesieecasasieenieyeevacures 24

Meachum v. Fano, 427 U:S. 215 (1976)................... 21

Mitchell v. Dupnrk,

75 F.3d:517 (9th Cir. 1996)..........:..... 17, 24, 25

Montanye v. Haymes, 427 U.S. 236 (1976) ............. 21

Olim v. Wakinekona, 461 U.S. 238 (1983)............... 21

Rapier v. Harris,

172 F.3d:999 (7th Cir. 1999).............. 11, 23, 25

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

Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000) ..... 19, 27

Suprenant v. Rivas,

424 F.3d 5 (ist Cir. 2005).................. 11, 17, 235

Toussaint v. McCarthy,

801 F.2d 1080 (9th Cir. 1986)...................:.... 24

Wilkinson v. Austin, 545 U.S. 209 (2006)........ passim

Wolff v. McDonnell, 418 U.S. 539 (1974)........... 17, 26

Statutes & Rules

ne SiS anceiunereneelensseeaeuenenmainannee 5

i Oe, RIEIOID seceiissiccnceccantsncwenvecsecnnrnes passim

Miscellaneous

State of Delaware, Delaware Correctional

Center, available at http://doc.

delaware.gov/BOP/PrisonDCC.shtm! ... 2, 3, 13

INTRODUCTION

This case involves the application of the Rule

12(b)(6) motion to dismiss standard to a pro se

complaint. Respondents allege in their Complaint

that the State punished them and subjected them to

highly restrictive conditions of confinement—in the

case of two of the Respondents for almost five years—

without any procedural process. The State concedes

that’ Respondents were pretrial detainees and that

the Constitution prohibits the State from punishing

them. The State also does not dispute that if

Respondents’ constitutionally protected interests are

at risk then some legal process is necessary. The

only issues raised by the Petition are whether

Respondents’ substantive and procedural due process

allegations are sufficient to meet the liberal pleading

standard. These case-specific questions do not

warrant review by this Court.

Indeed, the Third Circuit rightfully concluded that

the particular allegations in the Complaint are

sufficient to survive a motion to _ dismiss.

Respondents allege, inter alia, that they were held in

punitive conditions and were allowed out of their cell

for only three hours a week. Respondents contend

that similarly situated pretrial detainees were not

being held in_= such restrictive confinement.

Respondents also contend that they repeatedly asked

the State to inform them of the reason for the

punitive measures, but that those requests were

ignored. Based on these alleged facts, the court of

appeals concluded that the allegations raise an

inference of “arbitrariness” that warrants further

proceedings. The court also concluded that, given the

allegations of extremely restrictive confinement, the

2

State likely should have provided some -minimal,

non-adversarial process to. ensure that. such

conditions are not mistakenly or arbitrarily imposed.

The Third Circuit's decision is based on this

Court’s precedent and is consistent with that of the

other circuits. This Court, almost thirty years ago,

held _that the Constitution prohibits imposing

conditions or restrictions on pretrial detainees that

are punitive or arbitrary. Bell v. Wolfish, 441 U.S.

520, 535, 539 (1979). This Court, furthermore,

recently held, in a case dealing with convicted and

sentenced inmates, that restrictions, similar to those

imposed .on the Respondents here, required some

procedural protection. See Wilkinson v. Austin, 545

U.S. 209, 224 (2005). No circuit court that has

addressed similarly restrictive conditions has held

otherwise and the cases cited by the State to assert a

split are factually distinct in material ways.

COUNTER-STATEMENT OF THE CASE

Respondents are three inmates who werc housed

as pretrial detainees in the Delaware Correctional

Center (“DCC”), Security Housing Unit (“SHU”)

isolation tier. Pet. App. 32, 34.. SHU is the most

restrictive housing unit in the DCC. SHU is reserved

for those inmates who have “demonstrated that they

cannot be housed in a lesser security setting and/or

whose behavior and history are conducive to

maximum security housing.” State of Delaware,

Delaware Correctional Center, available’ at

http://doc.delaware.gov/BOP/PrisonDCC.shtml (last

visited December 19, 2007). Placement in the pre-

trial SHU is indefinite, limited only by trial and

sentencing or the apparent discretion of prison

officials. “Inmates, other than those sentenced to the

3

death penalty, may earn their way out of SHU by

exhibiting appropriate behavior, complying with

institutional rules and participating in treatment,

education, and/or work programs.” /d. Respondents

contend that detainees awaiting trial and sentencing,

even for serious crimes, typically are not placed in

SHU. Pet. App. 34.

The conditions in’ SHU are. extraordinarily

restrictive. Inmates in SHU:

e spend 165 out of 168 hours a week locked in

their cells (leaving their cells only for recreation for

45 minutes and a shower for 15 minutes, three days a

week);

e can only walk around a small steel cage for

recreation and are denied access to any equipment;

e cannot possess art supplies, playing cards, or

other mind stimulating activities;

° cannot watch television;

¢ cannot control the lights in their cells;

e are allowed one 45 minute visit a week, during

which the inmate is handcuffed and shackled;

e are permitted one 10 minute phone call a week;

and

e cannot attend, participate in, or watch

religious services.

Pet. App. 34-36.

SHU inmates, additionally, have no _ physical

access to the law library, but must identify and

request materials that may or may not be provided.

Pet. App. 35. They are allowed to possess only five

cases at a time and must return these cases to get

any additional ones. Inmates’ access to the

4

commissary—where. stamps, paper and. envelopes

may be purchased—is limited to one visit every two

weeks with a fifteen dollar spending limit. Legal

phone calls require twenty-four hour notice.

At the time the Complaint was filed, Respondent

Michael Jones was housed in SHU while awaiting

trial. Pet. App. 32-33. On or about February 19,

2003, he was moved to SHU, along with several other

inmates from Gander Hill Prison, after a disruption

at that facility. Pet. App. 32. All of the inmates

allegedly involved in that disruption, except Jones,

were moved back to Gander Hill or to the B Building

pretrial detention center. Jones never received a

hearing regarding his initial or continued detention

in SHU, and he never received an explanation as to

why he was moved to and continued to be housed at

SHU, even after he asked for one. At the time the

Complaint was filed, Jones had been detained at

SHU for over one year. Pet. App. 32-33.

Respondents Michael Manley and David Stevenson

were detained in SHU while awaiting sentencing. Pet.

App. 33. Manley and Stevenson had been convicted —

and sentenced to death in January 1997. On or

about May 30, 2001, Manley’s and Stevenson’s

sentences were vacated and their cases. were

remanded for further proceedings. At that time, they

were “returned to pre-trial detainee status: and

moved off the death row tier.” Pet. App. 34. Instead

of being moved to B Building, which is where other

detainees who have had their death sentences

vacated have been moved, Plaintiffs were moved to

SHU. In December 2003, Stevenson, without

explanation, was moved to a less restrictive pre-trial

facility. Pet. App. 37. He was moved back to SHU

5

one month later, in January 2004, again with no

explanation or hearing. Like Jones, Manley and

Stevenson never received a hearing regarding their

initial or continued detention in SHU, were never

told why they are being housed in. SHU, despite

repeated requests, and had no opportunity to

challenge their continued detention in the restrictive

unit. Pet. App. 34, 37. . Stevenson and Manley had

been in SHU for almost three years at the time they

filed their Complaint in 2004 and were ultimately

held in SHU until their resentencing in February

2006, almost five years after their assignment to

SHU.

Jones, Stevenson and Manley filed an action under

42 U.S.C. § 1983 on or about February 25, 2004,

alleging violations of their’ substantive and

procedural due process rights. Pet. App. 39.

Respondents allege. they were housed in SHU for

punitive purposes and without any explanation or

means to challenge their classification or the

conditions of confinement. Pet. App. 34, 37.

The State filed a motion to dismiss under Rule

12(b)(6) for failing to state a claim upon which relief

can be granted. The State contended that in Sandin

v. Connor, 515 U.S. 472 (1995), this Court had held

that the constitutional liberty interests afforded

inmates “are limited to ‘freedom from restraint’

which imposes an atypical and significant hardship

in relation to the ordinary incidents of prison life.”

Pet. App. 42 (quoting Sandin, 515 U.S. at 483-84).

Accordingly, the State asserted that Respondents had

no constitutionally protected interest at stake and

had failed to state a due process claim. The district

court granted the State’s motion to dismiss, holding

6

that Respondents. failed to allege a facially valid

cause of action.

The Third Circuit unanimously reversed and

remanded. Pet. App. 2. The court held that because

Respondents, as the State has conceded, were

pretrial detainees, the district court had erroneously

relied upon Sandin, 515 U.S. 47, a post-sentencing

case, to conclude that Respondents had no

constitutional liberty interest at stake. Pet. App. 12

n.4. The court of appeals instead recognized that

under Beli, 441 U.S. 520, this Court held that

pretrial detainees have a substantive due process

right not to be punished. Pet. App.'8. The court of

appeals concluded that, under Be//, Respondents’

allegations “intimate a degree of as yet unexplained

arbitrariness in the procedures regarding placement

in SHU,” Pet. App. 11, and raise an “inference of

impermissible punishment that precludes granting a

motion to dismiss.” Pet. App. 12. Although the court

noted that reasonable inferences apart from

punishment could be drawn from the Complaint as

explanation for Respondents’ confinement, the fact

that such inferences could be drawn was “proof that

dismissal was premature.” Pet. App. 6. Respondents

met their “obligation to provide grounds for... relief

by presenting factual allegations sufficient to raise

their right to relief above a speculative level.” Pet.

App. 6 (citing Bell Atl Corp. v.. Twombly, 550 U.S.

___, 1278. Ct. 1955, 1964-65 (2007)).

The Third Circuit also held that the Complaint

sufficiently alleged a valid procedural due process

claim. Pet. App. 2, 7, 14. The court concluded,

assuming the allegations were true, that

Respondents could not be held indefinitely in the

7

highly restrictive conditions in SHU without some

non-adversarial process: “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

indefinitely in SHU without explanation or review of

their confinement.” Pet: App. 14. Recognizing that

the degree of process required will vary depending on

the reason for the transfer, the Third Circuit

remanded to the trial judge to evaluate the purposes

of the restrictive confinement and the process that

may be required. Pet. App. 16. The court

emphasized, however, that when the transfer into

such highly restrictive conditions is administrative,

as the State contends, only the informal, non-

adversarial process outlined by this Court in Hewitt

v. Helms, 459 U.S. 460, 468 (1983), is necessary, and

“[djue to the unique exigencies of prison

management, . . . the minimal exchange of

paperwork .. . need not occur prior to the transfer of

a detainee.” Pet. App. 17.

REASONS FOR DENYING THE WRIT OF

CERTIORARI

There is no compelling reason to review the Third

Circuit’s fact pound, interlocutory decision that

Respondents have alleged claims sufficient to survive

a motion to dismiss. With respect to Respondents’

substantive due process claim, the State docs not

contend the courts are confused on whether pretrial

detainees may be punished; the State itself concedes

the legal point. The Third Circuit did not even

conclude that a substantive due process violation had

occurred. The entire dispute is over whether

Respondents’ specific factual allegations of punitive

8

confinement should survive a Rule 12(b)(6) motion.

Furthermore, because the record is not developed

and the State has conceded the general legal issues,

the Petition presents a poor vehicle for review.

Nor is there any reasor. to address the Third

Circuit's remand of the procedural due process claim.

The court’s conclusion that Respondents’ liberty

interests are implicated follows, in part, from the

conclusion that a valid substantive due process claim

of improper punishment has been alleged. Moreover,

the highly restrictive conditions of confinement

themselves, even absent an allegation of punishment,

support the procedural due process claim. There is

no split or demonstrated confusion regarding the

scope of procedural due process in any of these

contexts. The State cited cases from other circuits

that dealt with factually different situations. Not

one case involved the type of highly restrictive

conditions. imposed on the pretrial detainees here.

Indeed, the precedent from each of these circuits

indicates that if faced with a similar set of facts they

would resolve the issue as the Third Circuit did.

Likewise, there is no well-defined or developed split

among the courts regarding whether Sandin applies

to pretrial detainees. Every court that has cxamined

the issue has concluded, as the Third Circuit did,

that Sandin does not apply. The State’s alleged split

consists of a few unpublished dispositions in which

the courts cited Sandin, without analysis, in cases

involving pretrial detainees. Such unexplained

citations do not create a split warranting this Court’s

attention.

Finally, this decision does not interfere with

the State’s administration of its prisons. The court

9g

did not prohibit the State from housing detainees in

SHU or impose restrictions on what conditions the

State may impose. The court simply noted that when

pretrial detainees are to be subjected to indefinite

confinement—in this case almost five years—in

highly restrictive, allegedly punitive conditions, some

minimal process is necessary. The process outlined

by the court, informing the detainee of the purpose of

his confinement in SHU and allowing the detainee to

respond, will have a minimal effect on prison

management. Many states, in fact, already appear to

have such procedures in place.

ARGUMENT

I. THE THIRD CIRCUITS CONCLUSION

THAT RESPONDENTS ALLEGED A VALID

SUBSTANTIVE DUE PROCESS CLAIM

SUFFICIENT TO SURVIVE A MOTION TO

DISMISS DOES NOT WARRANT THIS

COURT'S REVIEW.

A. The Petition Does Not Present A Certworthy

Legal Question.

[he State mischaracterizes the nature of the Third

Circuit’s opinion. The State presents the question as

whether “[clertiorari 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.” Pet. 23.

This question is not presented.

The Third Circuit did not hold that Respondents’

substantive due process rights were violated. Nor

did the court hold that the State was unjustified in

detaining Respondents in SHU. The Third Circuit,

instead, held only that Respondents “met their

obligation to provide grounds for their entitlement to

10

relief by presenting factual allegations sufficient to

raise their right to relief above a speculative levei.”

Pet. App. 6 (citing Twombly, 550 U.S. __, 127 S. Ct.

at 1964-65). The court expressly acknowledged that

the State’s factual assertions regarding the nature of

Respondents’ confinement were “legitimate

inference[s}],” but that such competing inferences

underscored that the dismissal was premature. Pet.

App. 5-6. The Third Circuit, in other words, decided

that these Respondents had pled enough facts about

their individual circumstances to survive a Rule

12(b)(6) motion to dismiss, but conceded that the

State.may ultimately be correct on the merits. This

initial fact bound determination does not warrant

review. —

1. The Petition, in fact, does not raise a dispute

over a constitutional standard at all. The State

concedes under this OCourt’s' precedent that

Respondents, as pretrial detainees, may not be

punished. Pet. 8, 23; Pet. App. 40; Be// 441 U.S. at

535. As this Court has recognized, both the nature

and condition of the confinement, as well as the

State’s motives, are relevant in determining whether

a particular inmate was punished. Bel/ 441 U.S. at

538-39. This Court further held in Bel/ that “a court

may permissibly infer that the purpose of. the

governmental action is punishment that may not

constitutionally be inflicted upon detainees qua

detainecs” if the “restriction or condition” is

“arbitrary.” Jd. at 539.

Applying this Court’s precedent, the Third Circuit

held that under the facts alleged, “dismissal was

improper” at the motion to dismiss stage “[{b]ecause

the District Court could not make either an objective

1]

inquiry into the severity of the deprivations or a

subjective inquiry into the mental state of the

officials.” Pet. App. 11.' The court also concluded

that the Complaint raised issues of “unexplained

arbitrariness’ on the part of the State. Pet. App. 11.

Rather than a legal dispute, this Petition raises

merely -a dispute over the factual sufficiency of

Respondents’ allegations.

The Third Circuit’s opinion is in line with decisions

from other circuits, which have held that when

determining whether restrictions are punitive or

retaliatory, the motivations of detention officials and

circumstances surrounding the — restrictions are

paramount, as “the same conduct may be the basis

for either nonpunitive, regulatory restrictions or

punitive sanctions.” Aapier v. Harris, 172 F.3d 999,

1005 (7th Cir. 1999); see Suyrenant v. Rivas, 424

F.3d 5, 14-15 (1st Cir. 2005). These determinations,

as other circuits have agreed, cannot always be

determined at the motion to dismiss stage. See, e.g.,

Magluta v. Samples, 375 F.3d 1269, 1275 (11th Cir.

2004) (reversing grant of motion to dismiss because

motivation of prison officials could not be

determined).

2. Nor is there a dispute over the appropriate legal

standard to apply to a motion to dismiss. The Third

Circuit cited this Court’s decision in Twombly, noting

that the allegations in this Complaint were more

than mere speculation, and distinguished its own

precedent in ELvancho v. Fisher, 423 F.3d 347 (3d Cir.

' To be sure, the State submitted a conclusory factual

affidavit disputing the factual allegations in the complaint. Pet.

App. 52.

12

2005), which requires the court to dismiss complaints

based only on conclusory, rather than substantiated,

factual allegations. The court concluded that this

Complaint, for the reasons stated below, was

sufficient, particularly in light of the lower standard

of pleading that applies to pro se plaintiffs, to survive

a motion to dismiss. Pet. App. 3-4. These legal

standards are uncontroverted. The State’s sole

contention is that the Third Circuit erred in applying

this legal standard: to the particular facts alleged in

Respondents’ Complaint.

B. Respondents Alleged A Factually Sufficient

Substantive Due Process Claim.

The court of appeal’s decision that dismissal was

premature in this case is undoubtedly correct. The

Complaint here, as the Third Circuit recognized, is

replete with allegations and inferences that raise

questions of fact. Respondents allege that the: move

to SHU was “punitive” and request that the State be

enjoined from further “retaliatory practices.”

Respondents further allege that the conditions in

SHU are extremely restrictive. Respondents contend

they were locked in their cells 165 out of 168 hours a

week—one of them for over a year while awaiting

trial and two of them for almost three years while

awaiting sentencing. Respondents had no access to

exercise equipment and their only recreation was to

walk around a steel cage for 45 minutes three times a

week. Respondents. were denied religious services,

even through television, the entire time. They had

2 The length of Plaintiffs’ detention is relevant to the question

of punishment. Cf Hutto v. Finney, 437 U.S. 678, 687 (1978)

(noting that unpleasant conditions “might be tolerable for a few

days and intolerably cruel for weeks and months’).

13

no physical access to the library and were limited to

only receiving materials that they had specifically

identified. They were allowed only one visit per week

during which time Respondents were handcuffed and

shackled. The State itself implies that it uses these

restrictive conditions in SHU as punishment, stating

on its website that SHU inmates may “earn” the

right to return to medium security or general

population through good behavior. State of Delaware,

Delaware Correctional Center, available at

http://doc.delaware.gov/BOP/PrisonDCC.shtml (last

visited December 19, 2007).

Respondents’ allegations that not all similarly

situated inmates were housed in SHU further cast

doubt on the motives of the state officials.

Respondents allege that other inmates who had been

convicted of first degree murder and who had death

sentences vacated were not housed in SHU.

Respondents also allege that they, too, were housed

at different times in less restrictive confinement.

Respondent Jones alleges that he was housed in the

Gander Hill Prison and transferred to SHU, without

any explanation or process, only after a disturbance

at that facility. All of the other inmates who had

been moved to SHU after the disruption, with the

exception of Jones, were moved back to Gander Hill

or to the B Building pretrial detention center; only

Jones was kept in the highly restrictive SHU.

Respondent Stevenson also was moved to a less

restrictive pretrial facility in December 2003, after

his death sentence had been vacated. He was then,

without explanation, moved back to SHU one month

later in January 2004. The fact that two of the

Respondents themselves were housed—in one case

even after a determination of guilt and the

14

imposition of a death sentence—in much less

restrictive housing belies the State’s assertion that

Respondents were placed in SHU solely for security

concerns based on their background and warrants

further inquiry by the trial court.

C. This Petition Presents A Poor Vehicle To

Address Any Substantive Due Process Claims.

This Court; if it were to grant this Petition, would

be unable to address with precision any substantive

due process claim because of the procedural status of

this case. As noted above, even if the Court wanted

to address the substantive due process questions as

urged by the State, those questions are not presented

by this preliminary appeal based on the Rule 12(b)(6)

pleading standard. The trial court did not make a

determination regarding whether a substantive due

process violation occurred. At this stage, the facts

regarding the nature and severity of the conditions in

SHU and the State’s motives for placing Respondents

in SHU are still unknown and undeveloped. The

Court would have great difficulty in clarifying any

substantive legal issues at this stage of the

proceedings.

The Court also would have difficulty in addressing

the actual question presented: whether Respondents

pled sufficient facts to survive a Rule 12(b)(6) motion.

As the Third Circuit pointed out, the State concedes

that “the complaint alleges that ‘Plaintiffs weren't

given an explanation for the punitive move.” Pet.

App. 4. The State further concedes, as mentioned

above, that punishment is inappropriate for pretrial

detainees and that Respondents were in fact pretrial

detainees. Pet. App. 8, 40. Under these

circumstances, even if the Court were inclined to

15

address the pleading requirements of pro se plaintiffs

in the substantive due process context, the inquiry

would be exceedingly limited by the State’s own

concessions on both the facts and substantive law.

Il. THE THIRD CIRCUITS CONCLUSION

THAT RESPONDENTS ALLEGED A. VALID

PROCEDURAL DUE .PROCESS . CLAIM

SUFFICIENT TO SURVIVE A MOTION TO

DISMISS. DOES NOT WARRANT THIS

COURT'S REVIEW.

The Third Circuit’s conclusion that Respondents

alleged a valid procedural due process claim similarly

does not warrant review. The court, contrary to the

State’s argument, did not hold that Respondents

were improperly placed in SHU-or that SHU is

inappropriate for some pretrial detainees.. Indeed,

the court recognized that legitimate institutional

interests, including safety and security, may justify

the highly restrictive conditions in SHU. Pet. App. 5-

6, 15. The Third Circuit simply held, consistent with

this Court’s precedents, that some minimal legal

process be provided if the State wishes to. impose

these highly restrictive conditions of confinement

indefinitely. Pet. App. i6-17; see also Hewitt, 459

U.S. at 477 n.9 (noting that “administrative

segregation may not be used as a pretext for

indefinite confinement” and that “[p]rison officials

must engage in some sort of periodic review of the

confinement’). This decision is consistent with this

Court’s precedent and does not create a split among

the courts of appeals.

16

A. Respondents Alleged A Valid Due Process

Claim Based On The State’s Alleged

Punishment.

The Third Circuit, consistent with this Court's

orecedent, held that Respondents have alleged a

valid “liberty interest-in being free from punishment

while awaiting sentencing and in not being held in

the SHU indefinitely.” Pet. App. 7. Either of these

alleged liberty interests is sufficient to survive a Rule

12(b)(6) motion, because, as this Court has held,

some procedural due process protections attach when

the State infringes on a constitutionally protected

liberty interest. Hewitt, 459 U.S. at 466; Mathews v.

Eldridge, 424 U.S. 319, 332 (1976): The Third

Circuit’s holding that Respondents have alleged a

valid procedural due process claim thus, in part,

follows from its conclusion that Respondents have

alleged. a valid substantive due process claim.

Because Respondents’: Complaint alleges a facially

valid claim that Respondents. were being

unconstitutionally punished, at this stage of the case

there is a clear constitutionally protected liberty

interest at issue and therefore a valid claim for

procedural due process.

There also has been no determination or discovery

regarding the State’s motives. In addition to the

difficulties that will arise from the lack of factual

development as noted supra, for purposes of

procedural due process the Third Circuit noted that

at least Jones’s transfer to SHU raised serious

questions as to whether the transfer was for purposes

of discipline for violating prison rules. Pet. App. 17.

This concern that Jones’s assignment to SHU was

disciplinary is separate from the court’s concerns

17

that the confinement was punishment for the alleged

crime itself. There is no dispute among the courts of

appeals that if the State did impose highly restrictive

conditions on Respondents for disciplinary reasons

that some sort of procedural protection is required.

See Suprenant, 424 F.3d at 17 (inmate placed in

administrative segregation for discipline entitled to

procedural process); Benjamin v. Fraser, 264 F.3d

175, 190 (2d Cir. 2001) (“the [formal] procedures

required by Wolff|v. McDonnell, 418 U.S. 539 (1974)}

apply if the restraint on liberty is imposed for

disciplinary reasons’); Mitchell v. Dupnik, 75 F.3d

517, 524 (9th Cir. 1996) (“pretrial detainees may be

subjected to disciplinary segregation only with a due

process hearing’). Respondents allege that they

received no process—no reason for their placement in

SHU, despite repeated requests, and no opportunity

to challenge their placement. These allegations raise

an actionable procedural due process claim if the

State’s motivation was in fact for disciplinary

purposes.

This case, accordingly, is a poor vehicle in which to

address the State’s question regarding the scope of

procedural due process. The State seeks review of

whether Respondents’ allegations of highly

restrictive, indefinite confinement raises a procedural

due process claim sufficient to survive a motion to

dismiss. But, unless this Court is prepared to

address and reverse the pleading requirements of a

substantive due process claim—notwithstanding the

State’s concession that the Constitution prohibits

punishment of Respondents—and make the factual

determination that the conditions were not

disciplinary, the decision would have no effect. A

valid procedural due process claim would remain.

18

There is no reason for this Court to grant review of

an interlocutory, fact bound Petition that would not

even resolve the claims before the district court.

B. Respondents Alleged A Valid Due Process

Claim Based On The State’s Alleged

Indefinite, Highly Restrictive Confinement.

1. This Court’s precedent, furthermore, supports

the Third Circuit's second determination that

Respondents have alleged a valid liberty interest

based on the indefinite, highly restrictive conditions

in SHU. This Court, in Austin, 545 U.S. at 220, held

that sentenced inmates’ subjected to similar

conditions of confinement had a “constitutionally

protected liberty interest in avoiding assignment to

OSP [Ohio’s supermax prison].”. In Austin, the

inmates in the OSP were kept in their cell 23 out of

24 hours a day and had no control of the lights in

their cells. “Opportunities for visitation [we]re rare”

and inmates were deprived of almost all human

contact. The inmates, who were not eligible for

parole while in OSP, were placed in these conditions

for an indefinite amount of time, limited only by the

length of the sentence and an annual review of the

assignment. /d. at 214-15.

This Court concluded that the nature of these

conditions created a constitutionally protected liberty

interest. Jd. at 223-24. The Court emphasized that

although these “harsh conditions may well be

necessary and appropriate in light of the danger that

high-risk inmates pose to both prison officials and to

other prisoners[,] .. . [t]hat necessity .. . does not

diminish our conclusion that the conditions give rise

19

to a liberty interest in their avoidance.”’ /d. at 224;

see also Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000)

(holding that sentenced inmate had a _ protected

liberty interest from similar restrictive custody).

The conditions in this case—as applied to pretrial

detainees—are similar and actually more restrictive

than those applied to sentenced inmates in Austin.

In SHU, Respondents were allowed out of their cell

only three hours a week (four hours less per week

than the sentenced inmates in Austin). Like the

inmates in Austin, Respondents could not control the

lights in their cells and had minimal visitation rights,

even with their attorneys. They were prohibited from

possessing any mind stimulating activities, or

attending any religious services. Respondents, even

though they were awaiting trial and sentencing on

first degree murder charges, were unable to visit the

law library and had only limited access to materials.

from the library. Respondents were held indefinitely

in these conditions, limited only by an eventual trial

and/or sentencing. In this case, two of the

Respondents were held in SHU without explanation

for almost five years.

The highly restrictive conditions in SHU have far

graver potential consequences on pretrial detainees

than the conditions in Austin had on sentenced

inmates. In Austin, the only potential consequence

was that the sentenced inmates were not eligible for

parole while housed in OSP. This Court, however,

> Because Ohio, unlike Delaware, provides its inmates

numerous procedural protections, including a_ three-tier

classification review and another review of confinement within

thirty days of arrival, the Court ultimately held that procedural

due process had been met. Austin, 545 U.S. at 225.

20

has held that inmates have no right to parole.

Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1979). Moreover, because

OSP houses only those inmates who have been

determined through multiple layers of process to be

the most dangerous inmates in the system, the

possibility of parole is almost nil. Here, these

restrictive conditions directly affected Respondents’

ability to prepare a defense to the underlying crime

and sentence in Jones’s case and to. the imposition of

a death sentence in Stevenson’s and Manley’s cases.

Respondents were literally fighting for their lives

with great restrictions on their access to lawyers and

legal materials. The harsh restrictions, while they

may be necessary and ultimately may be determined

to be legitimately related to institutional concerns,

should not be imposed without any due process to

pretrial detainees.4

2. The instant case is far different from the cases

from this. Court that the State cites, cases which

dealt with administrative transfers of sentenced

4 The State suggests that because two of the Respondents were

held on death row prior to their assignment to SHU these

inmates have no constitutionally protected interests. The

State's argument is wrong on numerous grounds. First, when

Respondents became pretrial detainees, some of their

constitutional rights were restored. They could no longer be

held in punitive conditions, as they could be on death row.

Second, it is the nature of the restrictions themselves, not the

destination from which detainees were transferred that creates

the constitutionally protected liberty interest. In Austin, for

example, this Court did not examine the prior conditions of each

inmate’s confinement before determining that a constitutionally

protected interest existed; this Court, instead, examined the

conditions in OSP itself.

21

prisoners between facilities. See Pet. 16 (citing

Meachum v. Fano, 427 U.S. . 215, 228-29 (1976);

Montanye v. Haymes, 427 U.S. 236 (1976); Olim v.

Wakinekona, 461 U.S. 238 (1983)). The Court held in

these cases that sentenced inmates did not have a

constitutional interest in being confined in .a

particular prison population or facility. Not one of

these cases dealt with - pretrial detainees.

Additionally, these cases did not address the

imposition of highly restrictive and allegedly punitive

conditions of confinement, such as the Court

addressed in Austin and that are present here. The

Third Circuit made the distinction between the

administrative transfer cases and this case clear,

holding that “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 indefinitely in the SHU without

explanation or review of their confinement.” Pet.

App. 14.

C. There Is No Circuit Split Regarding Pretrial

Detainees’ Right To Due Process When

Subjected To Highly Restrictive, Punitive

Conditions.

1. The Third Circuit did not create or enhance a

circuit. split regarding the protection of the due

process rights of pretrial detainees. The State

contends a split now exists between.the Third Circuit

and the Second, Sixth, Seventh and Ninth Circuits.

Pet. 9-12. The State’s cases, however, do not

demonstrate a split on the law, but merely

demonstrate that given different facts, different

outcomes will occur.

22

The State’s citation to Crane v. Logli, 992 F.2d 136

(7th Cir. 1993), for example, is inapposite to the

questions presented in this case. Crane dealt with a

situation where a court failed to issue a mandate and

the prisoner’s transfer from maximum security was

delayed. Jd. at 137-38. Crane did not involve the

lengthy, indefinite, allegedly punitive detention at

issue here; it involved.a delay in housing status while

the prison awaited the court's mandate.

Additionally, the Seventh Circuit had concluded that

the inmate was nota pretrial detainee. /d. at 139.

This holding directly conflicts with the State’s

concession in this case that Respondents are pretrial

detainees.®> Pet. App. 8. Pretrial detainees, under

this Court’s precedent, have greater constitutional

rights than sentenced and convicted inmates,

including the right to be free from punishment. ®

Bell, 441 U.S. at 535. In fact, in a later opinion

dealing with pretrial detainees, the Seventh Circuit

held that a pretrial detainee confined in solitary

confinement for 270 days,.with no phone or

5 Although there may be some disagreement between the

Seventh and Third Circuits regarding the definition of pretrial

detainees, the State conceded that Respondents were pretrial

detainees and the Third Circuit noted that concession in its

opinion. Pet. App. 8. Respondents’ status as pretrial detainees

is not before this Court.

6 The State’s citation to a district court opinion within the

Third Circuit that the Crane court relied upon serves the State

no better. Even if Getch v. Rosenbach, 700 F. Supp. 1365

(D.N.J. 1988), could support the State’s argument, that decision

obviously would have been at least implicitly overruled by the

Third Circuit’s decision here. Moreover, the court in Getch

expressly noted that the plaintiff failed to even argue that he

was subjected to punitive conditions. /d. at 1370-71 & n.18.

23

commissary privileges, no writing materials, and no

recreation was entitled to some procedural process.

Rapier, 172 F.3d at 1002.

Nor is there a demonstrated split with the Sixth

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

1991), which the State contends evidences a split,

dealt with the procedural due process rights of a

detainee who was placed in segregated confinement

for eight days because reliable sources had warned

that the detainee was planning an escape. The court

there affirmed the grant of summary judgment

because the developed record did not demonstrate

any arbitrariness and the action was reasonably

related to the legitimate institutional objectives. In

contrast, here, the Third Circuit expressly concluded

that there are questions of arbitrariness that require

further factual development. Moreover, after

Martucci, when the Sixth Circuit was faced with

restrictions similar to those here, as described supra

in discussing this Court’s opinion in Austin, the Sixth

Circuit concluded that sentenced inmates did possess

a constitutionally protected liberty interest in

avoiding assignment to OSP. Austin v. Wilkinson,

372 F.3d 346, 355 (6th Cir. 2004), affd in part, revd

in part, by Wilkinson v. Austin, 545 U.S. 209 (2005).

The State’s citation to unpublished opinions in the

Second and Ninth Circuits also does not indicate a

split. The State’s Ninth Circuit cases dealt with

routine classification decisions—for which the State

already provided hearings—and did not indicate that

pretrial detainees would be held in conditions

remotely similar to those here. The Second Circuit

opinion only held that there was no evidence that the

maximum security classification in that case was

24

unconstitutional punishment under Bell McMuillian

v. Cortland County Corr. Facility, 198 F.3d 234

(table), 1999 WL 753336, *1 (2d Cir. 1999). Both of

these circuits have later applied, in published

opinions, the Be// standard and required procedural

protection for disciplinary conditions. See Benjamin,

264 F.3d at 183, 188; Mitchell, 75 F.3d at 524 n.4; see

also Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th

Cir. 1986) (holding that initial determination to place

a prisoner in administrative segregation requires

informal nonadversary hearing within a reasonable

time after the prisoner is segregated).

Finally, even assuming arguendo that a circuit

split does exist, this issue is not ripe for consideration.

The asserted split is shallow—according to the State

at most only four-to-one—and the circuits have not

engaged in any debate or discussion regarding the

relative merits of the two positions. The split also

would appear to be stale as the two principal cases"

relied upon by the State are from 1993 and 1991.

The landscape of due process rights has been

clarified since that time, most notably by Austin,

which dealt with restrictions similar to SHU here.

Further percolation is warranted to determine how

the debate develops and to clarify any disagreement

on the legal issues.

2. There also is no developed split regarding

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

applies to claims by pretrial detainees. The State

contends there is a four-to-three circuit split on this

issue. The five circuit courts that have actually

discussed the issue and examined whether Sandin

should apply to pretrial detainees, however, have

concluded that Sandin does not apply to their claims.

25

See Suprenant, 424 F.3d at 17 (“The courts. of

appeals that have addressed this question are

consentient on the point” that the Sandin rationale

does not apply to pretrial detainees.); Benjamin, 264

F.3d at 189 (“Sandin does not apply to pretrial

detainees”) (internal quotations marks omitted);

Fuentes v. Wagner, 206 F.3d 335, 341-42 n.9 (3d Cir.

2000) (“Sandin does not.apply here [to the procedural

due process claim of a pretrial detainee].”); Rapier,

172 F.3d at 1002 n.2 (“[Njothing in the Supreme

Court’s decision in Sandin v. Conner { | alters this

fundamental proposition” that a pretrial detainee

may not be subjected to any form of punishment for

the crime for which he is charged); Mitchell, 75 F.3d

at 524 (“Sandin thus recognizes that its: rationale

regarding incarcerated prisoners is not applicable to

pretrial detainees. Sandin leaves Bell v. Wolfish

untouched.”).

The State’s alleged split is based on unpublished

dispositions in three other circuits that did not

discuss the issue and did not examine whether

Sandin should apply. Pet. 13. The three opinions ©

relied on by the State are similar in their brevity.

The entire due process -discussion, as well as the

holding, in each: case was limited to one or two

sentences. Although the courts cite Sandin in

dealing with pretrial detainees’ claims, not one of

these unpublished dispositions actually discussed

whether Sandin should apply and none of them

provides any “indication that the court considered

that there was a question regarding whether Sandin

should apply. None of these opinions reveals

whether, if the courts had considered the question,

they would have chosen to apply Sandin to the

procedural due process claims of pretrial detainees.

26.

It is thus not clear that there is any real

disagreement among the circuits that Sandin should

apply. :

D. ‘The Minimal Process Afforded By The Third

Circuit Would Not Interfere With Prison

Administration Or Discretion. |

The minimal legal process suggested by the Third

Circuit would not interfere. with the State’s

administration of its prisons. The Third Circuit did

not mandate a balancing test or substitute its

judgment for that of prison officials. The court,

rather, emphasized that prison cfficials have wide

discretion in making housing and security decisions.

Pet. App. 18. Under the Third Circuit’s opinion, the

State need only notify the detainee of reason for the

imposition of the highly restrictive conditions and

provide an opportunity to respond. Pet. App. 15.

This minimal process merely ensures that the State

does not act arbitrarily or for purposes of punishment

and helps ensure that factual mistakes are not made

(e.g, an alleged shoplifter is not accidentally

incarcerated in SHU because he has the same name

as another violent inmate).’

The State’s contention that procedural process

would be entirely superfluous demonstrates the

reason why such process is necessary. The State

suggests that because Respondents were charged

with first degree murder, any process would be a

7 In cases where the transfer is not administrative, but

related to discipline, consistent with this Court’s opinion in

Wolff, the court also noted additional process may be needed.

Pet. App. 16-17. Because the factual record has not been

developed, the reasons for the transfers and the exact nature of

the procedures has not and cannot be determined.

27

“meaningless paperwork task.” Pet. 22. Apparently,

according to the State, because Respondents were

charged with a serious crime, the State may impose

any conditions on them for any reason without any

procedural protection. Such a contention is directly

contrary to this Court’s opinion in Be// and the law in

every circuit. to have addressed it. Restrictions on

the inmate must be reasonably related to legitimate

governmental objectives, which, the Third Circuit

concluded, it was unable to-determine based on the

current record. Pet. App. 18. Indeed, under the

particular circumstances of this. case, the State’s

actions appear particularly arbitrary and troubling,

as conditions of confinement of at least two of the

detainees allegedly did change, even though the

charge against them did not. Pet. App. 32, 37.

Under the allegations of the Complaint, the serious

charges against Respondents apparently were not the

determinative factor in placing them in SHU as the

State has previously represented.

The process suggested here, in fact, is less

intrusive than the process provided to the sentenced

inmates in Austin. In Austin, as noted supra, Ohio

provided multiple levels of initial procedures, appeals

and additional reviews of the necessity of the

confinement. Austin, 545 U.S. at 216-17; see also

Shoats, 213 F.3d at 142 (inmates received notice of

reasons for administrative custody, a hearing, the

opportunity to appeal, and review of their status).

Indeed, numerous other states already provide their

inmates—and most importantly their pretrial

detainees—similar minimal due _ process. before

imposing highly restrictive confinement. Compare

Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639

(10th Cir. 2006), cert. denied, 127 S. Ct. 2875 (2007);

28

Jones v. Baker, 155 F.3d 810, 811-12 (6th Cir. 1998);

Brown v. Plaut, 131 F.3d 163, 170 (D.C. Cir. 1997).

Even the cases cited by the State in its Petition

indicate the presence of some regular process when

detainees are placed in restrictive housing. | See

Garcia v. Pugh, 8 F.3d 26 (table), 1993 WL 362268,

*1 (9th Cir. 1993) (classification hearings conducted);

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

149679, *1 (9th Cir. 1992) (detainee received

numerous classification hearings). There is no

reason Delaware cannot provide some minimal

process too.

CONCLUSION

For the foregoing reasons, the Court should: deny

the petition for writ of certiorari.

Respectfully submitted,

LEON F. DEJULIUS, JR.

(Counsel of Record)

JEAN M. MOSITES

JONES DAY

500 Grant Street

Suite 3100

Pittsburgh, PA 15219

Tel: 412-394-9528

Counsel for Respondents