NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-1298 ____________

QUINTEZ TALLEY, Appellant

v.

MAJOR CLARK; LAURA BANTA; M. NASH; THOMAS GRENEVICH; J. YODIS; JOSEPH DUPONT; PA DEPARTMENT OF CORRECTIONS; JOHN E. WETZEL ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cv-05316) District Judge: Honorable Timothy J. Savage ____________

Argued on January 20, 2021

Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges.

(Filed: April 14, 2021)

Jacob I. Chefitz Harry Sandick Kathrina Szymborski [Argued] Patterson Belknap Webb & Tyler 1133 Avenue of the Americas New York, NY 10036

David M. Shapiro Roderick and Solange MacArthur Justice Center Northwestern University Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611

Counsel for Appellant

Josh Shapiro Claudia M. Tesoro [Argued] J. Bart DeLone Office of Attorney General of Pennsylvania 1600 Arch Street Suite 300 Philadelphia, PA 19103

Counsel for Appellees

Eric S. Mattson Benjamin I. Friedman Sidley Austin One South Dearborn Street Chicago, IL 60603

J. Manuel Valle Sidley Austin 1501 K Street, NW Washington, DC 20005

Counsel for Amici Curiae Professors and Practitioners of Psychiatry, Psychology, and Medicine in Support of Appellant

___________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 HARDIMAN, Circuit Judge.

Quintez Talley appeals an order of the District Court dismissing his complaint

against the Pennsylvania Department of Corrections (DOC) and various prison officials.

We will reverse and remand.

I

A Pennsylvania prisoner, Talley has longstanding mental health problems. He

tends to harm himself, often with fire, and he has tried to commit suicide by burning his

mattress. Before May 2015, the DOC determined he had a “serious mental illness,” which

placed him in the highest mental health classification (D). In May 2015, the DOC

downgraded Talley to level C, which meant that his mental illness no longer qualified as

“serious.” Talley remained on the C roster during the events relevant to this case.

Talley’s case involves his treatment while incarcerated at Pennsylvania State

Correctional Institutions Graterford and Fayette in 2018. Because the case was dismissed,

we accept as true the facts pleaded in Talley’s complaint. Ashcroft v. Iqbal,

(2009).

Near the end of his time at Graterford, Talley faced nine unspecified misconduct

charges, apparently including sexual harassment, using obscene or inappropriate

language to a staff member, refusing to obey an order, and destroying prison equipment

(according to Talley, the latter was during a suicide attempt). While the charges were

pending, Talley was placed on suicide watch in an isolated psychiatric observation cell

without access to pens or pencils. Because he could not write a statement, request the

3 presence of witnesses, or appeal, Talley asked to postpone the misconduct hearing until

after he left suicide watch. He also claimed he had not been properly notified of several

of the charges against him.

Hearing Examiner J. Yodis obtained approval from his supervisor, Joseph Dupont,

to deny Talley’s request and proceed with the hearing. Yodis told Talley he could either

attend the hearing or have Yodis conduct the proceedings without him, find him guilty of

all nine charges, and give him the maximum punishment. Faced with this ultimatum,

Talley waived his rights to submit statements and witness requests, and the hearing

happened on January 22, 2018. Yodis sanctioned Talley to ten months’ disciplinary

custody for seven of the nine charged offenses.

Talley asked the members of the “Program Review Committee”—a group of

prison officials who review the status of a prisoner’s administrative segregation or

disciplinary custody—to provide an assistant who could prepare a dictated appeal for

him. The Committee members—M. Nash, Thomas Grenevich, Laura Banta, and Major

Clark—refused, telling Talley that if he wanted to have the right to appeal like other

prisoners, “maybe he . . . shouldn’t say he was suicidal.” App. 49.

On January 31—nine days after his initial misconduct hearing—Talley was

transferred to SCI Fayette, where he was initially placed in another psychiatric

observation cell. On February 5, Talley was released from the cell and was taken to the

“Special Management Unit” (SMU).

The parties dispute the significance of this transfer. Talley claims the SMU, like

disciplinary custody, is “a form of solitary confinement.” Reply Br. 3. Appellees do not

4 dispute this, though they say the SMU was a change “for the better.” Response Br. 32.

Appellees also emphasize that SMU prisoners can return to the general population if they

successfully complete steps in a behavior modification program.

Talley alleges that on February 8, Hearing Officer Yodis held another misconduct

hearing—remotely—for the remaining two infractions Talley was charged with at

Graterford. Yodis sanctioned Talley to an additional 90 days of disciplinary custody

(bringing Talley’s total sentence to 13 months), took away Talley’s prison job, and

assessed Talley’s prisoner account for equipment he destroyed.

According to Talley, his inability to write while on suicide watch prevented him

from appealing the January 22 punishment. He also alleges that he could not appeal the

February 8 sanctions because he did not receive a written copy of the decision until after

the deadline to appeal had expired.

II

Talley sued the officials discussed above, along with the DOC and its Secretary,

John Wetzel. Talley’s pro se complaint alleged, among other things: (1) that the DOC

failed to reasonably accommodate him under the ADA and the Rehabilitation Act; (2)

Yodis and Secretary Wetzel violated his Eighth Amendment rights; (3) Yodis and Dupont

violated his due process rights concerning a protected property interest; and (4) Yodis,

Dupont, and the Program Review Committee members violated his due process rights

concerning a protected liberty interest. Talley brought the constitutional claims under

.

5 The Eighth Amendment claims are: (1) Yodis failed to consider Talley’s mental

illness during the misconduct hearings, which resulted in a cruel and unusual sentence of

solitary confinement; and (2) Secretary Wetzel was willfully blind to the “ongoing

practice” of prisoners such as Talley being put in isolation for conduct caused by mental

illness. Talley’s counsel characterizes the claim as “not that any time in solitary

confinement violates the Eighth Amendment but that a 13-month stint in solitary

confinement for a person with [Talley’s] particular mental health profile violates the

Eighth Amendment.” Talley Br. 56.

In two separate orders, the District Court dismissed the constitutional claims on

the merits and the ADA and Rehabilitation Act claims for failure to exhaust

administrative remedies. See 42 U.S.C. § 1997e(a) (requiring administrative exhaustion).

This timely appeal followed.

III

The District Court had jurisdiction under

. We have jurisdiction

under

. We exercise plenary review over the District Court’s orders.

Allah v. Seiverling,

(3d Cir. 2000). The parties agree the District Court

lacked a factual basis to conclude that Talley could have appealed the disciplinary rulings

after the relevant deadlines because he had a “serious mental illness,” and that the District

Court overlooked his due process claims based on the property interest in his prison

account funds. But Appellees argue remand should be limited to those issues, while

Talley urges us to reverse and remand the whole case for further factual development.

This disagreement requires us to decide whether: (a) Talley’s transfer to Fayette mooted

6 his request for injunctive relief regarding his treatment at Graterford; (b) further factual

development is needed as to the exhaustion of administrative remedies; (c) Talley alleged

that Yodis and Dupont actually took his property without due process; (d) Talley has a

protected liberty interest supporting his other due process claims; and (e) he has a viable

Eighth Amendment claim. 1 We consider each question in turn.

A

Appellees claim Talley’s transfer from Graterford to Fayette moots his request for

injunctive relief. Although a “transfer from the facility complained of generally moots the

equitable and declaratory claims,” “dismissal of an action on mootness grounds requires

the defendant to demonstrate that there is no reasonable expectation that the wrong will

be repeated.” Sutton v. Rasheed,

(3d Cir. 2003) (per curiam) (internal

quotation marks and citation omitted). A mootness determination is “an intensely factual

inquiry.” Ortho Pharma. Corp. v. Amgen, Inc.,

(3d Cir. 1989) (citation

omitted).

Talley alleges that, after the transfer to Fayette, he remained in solitary

confinement (albeit under a different correctional designation); Yodis and Dupont

retained power over him; and Yodis sanctioned him to three more months of disciplinary

1 We quickly address two other issues. First, while Appellees argue they are qualifiedly immune from Talley’s Eighth Amendment claims, this argument fails because they did not invoke qualified immunity in the District Court. See Bines v. Kulaylat,

, 385–86 (3d Cir. 2000). Second, Talley’s attorneys do not dispute Appellees’ argument that he cannot sue the DOC under § 1983.

7 custody. Because we must take these allegations as true at this stage, Allah,

, the facility transfer alone does not moot Talley’s request for injunctive relief.

B

According to Talley, the District Court erred when it concluded that prison rules

would have permitted him to appeal late because he had a “serious mental illness.” See

App. 35 (discussing a prison regulation that excuses seriously mentally ill prisoners from

meeting disciplinary appellate deadlines); Ross v. Blake,

(2016)

(explaining prisoners must exhaust administrative remedies only if those remedies are

“available”). Talley claims that, although he is mentally ill, “serious mental illness” is a

DOC phrase of art that does not apply to him. Appellees agree the District Court had an

inadequate basis to dismiss for failure to exhaust based on the serious mental illness

exception. Because “[f]ailure to exhaust is an affirmative defense the defendant must

plead and prove,” rather than “a pleading requirement for the prisoner-plaintiff,” we will

reverse the District Court’s exhaustion ruling without prejudice to Appellees’ right to

raise the defense on remand. See Paladino v. Newsome,

(3d Cir. 2018)

(quoting Small v. Camden Cnty.,

(3d Cir. 2013)).

C

We now consider Talley’s due process claims. Talley alleged that the assessment

against his prison account implicated a constitutionally protected property interest. See

Burns v. Pa. Dep’t of Corr.,

(3d Cir. 2008). Because the District Court

overlooked this allegation when it dismissed Talley’s due process claims, this is another

reason to reverse and remand.

8 Appellees agree that a remand is necessary but argue that it should be limited

because it is unclear whether Talley claims he lost funds from his account. The complaint

indicates otherwise: Talley was allegedly required “to pay” for equipment he destroyed.

App. 53 (¶ 52). For that reason, Talley’s due process claims based on the property interest

against Yodis and Dupont must proceed to discovery.

D

The District Court held that Talley did not allege a constitutionally protected

liberty interest. To establish such an interest in the prison conditions context, “the right

alleged must confer ‘freedom from restraint which . . . imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.’” Williams v.

Sec’y Pa. Dep’t of Corrs.,

(3d Cir. 2017) (quoting Griffin v. Vaughn,

(3d Cir. 1997)). Although we held in Griffin that “administrative

custody” for as long as 15 months does not create an atypical and significant hardship,

see

, that decision came at the summary judgment stage. And the hardship

inquiry is “fact-intensive.” Mitchell v. Horn,

, 532–33 (3d Cir. 2003)

(citation omitted).

Because the standard is so fact-based, in Mitchell we reversed the dismissal of a

due process claim where, as here, the plaintiff filed the complaint challenging his

disciplinary confinement pro se.

We held that this was the right approach—even

though the case was similar to Griffin—given the procedural posture, the plaintiff’s pro

se status, and the fact that “the record [was] not sufficiently developed for us to determine

whether there were other features of [the] confinement that meaningfully distinguished

9 [the plaintiff’s] situation from that in Griffin.”

. The case involved “several

months” of disciplinary confinement.

. In this case, the District Court cited

Griffin without discussing Mitchell.

Considering the similarities between this appeal and Mitchell, we will reverse the

January 24, 2019 order to the extent it dismissed Talley’s due process liberty interest

claims against Yodis, Dupont, and the Program Review Committee members.

E

We turn next to the Eighth Amendment claims. The District Court held that Yodis

“did not deprive [Talley] of basic necessities” or impose a punishment that dramatically

departed from accepted standards of confinement. App. 15–16. The District Court also

dismissed as too speculative Talley’s Eighth Amendment claim that Secretary Wetzel

was willfully blind to the practice of placing prisoners in solitary confinement for

conduct arising from mental illness.

Appellees argue that Talley lacks a viable Eighth Amendment claim because his

disciplinary custody term actually lasted 19 days, not 13 months; even 13 months would

not be constitutionally significant; he was in disciplinary custody “due to his own

misbehavior”; and he did not point to evidence of deliberate indifference “by any

individual defendant” in his opening brief. We disagree.

First, at this stage of the litigation, we must accept Talley’s allegation that he was

in solitary confinement for 13 months. We have held that a prisoner stated an Eighth

Amendment claim against Pennsylvania officials—including Secretary Wetzel—who

were responsible for giving him “multiple 30-day stints in solitary confinement” over the

10 course of 13 months despite knowledge of his significant mental health problems.

Palakovic v. Wetzel,

, 216–217, 226 (3d Cir. 2017). We emphasized “the

robust body of legal and scientific authority recognizing the devastating mental health

consequences caused by long-term isolation in solitary confinement.”

. These

“increasingly obvious” risks; the defendants’ alleged knowledge of the plaintiff’s mental

health issues; and his claims about the defendants’ awareness of suicides and self-harm

by other solitary prisoners—along with a subsequent U.S. Department of Justice

investigation of the plaintiff’s facility—allowed his claim to survive motions to dismiss.

. Because 30-day stints in solitary confinement over a period of 13 months are

shorter than the 13 months Talley alleges, and because both cases turned on prison

officials’ alleged deliberate indifference to a prisoner’s mental illness, Palakovic requires

Talley’s Eighth Amendment claims to proceed to discovery.

Appellees’ argument about Talley’s misconduct causing his restricted confinement

is an unpersuasive attempt to distinguish Palakovic. First, although we may consider

prison officials’ penological purposes when evaluating their disciplinary decisions under

the Eighth Amendment, see Porter v. Pa. Dep’t of Corrs.,

(3d Cir.

2020), Appellees do not explain how Talley’s alleged misconduct would justify putting

him in solitary for 13 months despite his mental illness. See Response Br. 13 & n.11, 39.

Second, although Palakovic does not explain exactly how the prisoner in that case ended

up in isolation, the opinion indicates that his “behavior” arising from his mental illness

was the cause. See Palakovic,

. Thus, Palakovic is more like this case

than Appellees suggest.

11 Finally, contrary to Appellees’ point about Talley not discussing deliberate

indifference, Talley’s opening brief cited the complaint’s allegation that Secretary Wetzel

and Hearing Officer Yodis were responsible for putting him in solitary despite his mental

illness, comparing the case to Palakovic. Talley Br. 54 (citing App. 48–49, 57). Talley

emphasized our recognition of “the increasingly obvious” risks of prolonged solitary

confinement. Talley Br. 54–55 (quoting Palakovic,

). He therefore stated

a claim against Yodis, who made the disciplinary decision.

Whether the District Court correctly ruled that Talley’s claim against Secretary

Wetzel was too speculative is a closer question. Talley’s allegation that Wetzel was

willfully blind to the “ongoing practice” of putting mentally ill prisoners in disciplinary

custody for unintentional violations of prison rules might seem speculative at first glance,

but it is enough in context. Wetzel is the Secretary of the DOC and we allowed a similar

claim to proceed against him in Palakovic. In that case we held that the plaintiff

adequately alleged that Wetzel was deliberately indifferent to the obvious risks of

prolonged solitary confinement of a mentally ill prisoner, especially given Wetzel’s

knowledge of specific instances of suicide and self-harm by other prisoners held in

isolation. Palakovic,

. We noted that, as here, the plaintiff’s placement on

a mental health roster supported the inference “that prison officials [including Wetzel]

had (or should have had) knowledge of th[e] diagnoses.”

The similarities between the

claims against Wetzel in Palakovic and this case, as well as Talley’s pro se status when

he filed his complaint, support reversing the order dismissing the claim against Wetzel.

12 See Higgs v. Att’y Gen.,

, 339 (3d Cir. 2011) (“The obligation to liberally

construe a pro se litigant’s pleadings is well-established.”).

* * *

For the reasons stated, we will reverse the District Court’s January 24, 2019 and

August 7, 2019 orders and remand for further factual development as to the following

claims: the Eighth Amendment claims against Yodis and Secretary Wetzel; the due

process property interest claims against Yodis and Dupont; the due process liberty

interest claims against Yodis, Dupont, and the Program Review Committee members;

and the ADA and Rehabilitation Act claims against the Department of Corrections. In

allowing these claims to proceed to discovery, we express no opinion as to their merits.

That decision will be the District Court’s task at summary judgment or trial.

13