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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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CG {| __ C27 207

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No. 07-575 sre CE OF THE CLE
ake JPREME RK.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1645%3A2. Public record. Not legal advice.