PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 22-2399 _____

ROY L. WILLIAMS, Appellant

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:21-cv-01248) District Judge: Honorable Eduardo C. Robreno _______________

Argued on July 14, 2023

Before: PHIPPS, MONTGOMERY-REEVES and McKEE, Circuit Judges.

(Opinion filed: September 20, 2024) _______________ Matthew A. Feldman [Argued] Pennsylvania Institutional Law Project 718 Arch Street, Suite 304 South Philadelphia, PA 19106 Counsel for Appellant

Michelle A. Henry Anthony T. Kovalchick [Argued] J. Bart DeLone Office of Attorney General of Pennsylvania Appellate Litigation Section 1251 Waterfront Place Mezzanine Level Pittsburgh, PA 15222 Counsel for Appellee

_______________

OPINION OF THE COURT _______________ McKEE, Circuit Judge.

Roy Lee Williams, a death-row prisoner with a history of mental illness, was held in solitary confinement on the Capital Case Unit (CCU) of a Pennsylvania state correctional institution for twenty-six years. Williams filed this action alleging that, given his known history of serious mental illness, being continuously held in solitary confinement for twenty-six years without penological justification violated the Eighth Amendment’s cruel and unusual punishment clause and the Americans with Disabilities Act (ADA). The District Court granted summary judgment for Defendants. It held that

2 Secretary John E. Wetzel, the former Secretary of the Pennsylvania Department of Corrections (DOC), was entitled to qualified immunity on the Eighth Amendment claim and that Williams could not show that the DOC was deliberately indifferent under the ADA.1 Williams now appeals the District Court’s grant of Defendants’ motion for summary judgment on both claims.

Prior to the District Court’s summary judgment decision, on April 1, 2021, the District Court sua sponte dismissed Williams’ Fourteenth Amendment claim, pursuant to

(e)(2)(b)(ii), for failure to state a claim. Williams also appeals that decision.

Our review of the District Court’s decision requires us to draw all reasonable inferences in Williams’ favor, including that the Secretary had knowledge of Williams’ preexisting serious mental illness. We must then determine if the Secretary should have known that holding this death-row prisoner with preexisting serious mental illness in solitary confinement from 1993 to 2019 without penological justification violated the Eighth Amendment.

We conclude that the Secretary had “fair and clear warning” that his conduct was unconstitutional and should

1 Since Plaintiff filed suit, George Little has replaced Secretary Wetzel as the acting Secretary of Corrections. Accordingly, the Court has deemed Plaintiff’s ADA claim to be against George Little in his official capacity as the Secretary of Corrections. For purposes of this opinion, we refer to Secretary Wetzel and George Little as “the Secretary” throughout.

3 have known that keeping Williams in solitary confinement would constitute cruel and unusual punishment.2 Therefore, the doctrine of qualified immunity does not shield the Secretary from Williams’ Eighth Amendment claim. Our prior precedents and the record before us leave no room for doubt that it has long been clearly established that someone with a known preexisting serious mental illness has a constitutional right not to be held—without penological justification—in prolonged solitary confinement.

As to Williams’ Title II ADA claim, the District Court correctly determined that there was a material factual dispute as to whether the DOC knew that Williams had a serious mental illness.3 However, the court erroneously concluded that a trier of fact could not find that the DOC was deliberately indifferent to the risk of harm it caused by placing and keeping Williams in solitary confinement despite his preexisting serious mental illness.

Accordingly, we will vacate the District Court’s grant of summary judgment on both claims and remand for further proceedings. We will affirm the District Court’s dismissal of Williams’ Fourteenth Amendment claim.

I. Factual Background

Roy Lee Williams was held on death row in solitary confinement in the CCU from 1993 to 2019—twenty-six years.

2 United States v. Lanier,

(1997). 3 J.A. 012, 035.

4 Astonishingly, he was only subject to an active death warrant for thirty-seven days of those twenty-six years.4

A. Williams’ Mental Health History

Williams’ history of serious mental health issues dates back to childhood. In 1979, when Williams was fourteen, he was involuntarily committed to the Philadelphia Psychiatric Center for making suicidal threats and exhibiting violent behavior.5 There, he was diagnosed with depression and suicidal ideation.6

In 1994, while in custody at SCI-Graterford, Williams sought help from the Psychological Services Department because he was deteriorating emotionally.7 A psychiatrist

4 Williams’ death warrant is no longer active. His first death warrant was signed on October 11, 1995. His execution was scheduled for October 26, 1995, and stayed on October 20, 1995. His second death warrant was signed on February 2, 1996. His execution was scheduled for February 20, 1996, and stayed on February 12, 1996. His third death warrant was signed on December 20, 2004. His execution was scheduled for February 17, 2005, and stayed on January 7, 2005. 5 J.A. 108; 110–11. 6 Three to six months after his discharge, Williams voluntarily returned to the Philadelphia Psychiatric Center for ninety additional days of inpatient treatment. He participated in family therapy sessions for roughly one year after his second hospitalization. 7 He informed a psychologist that he had a history of suicidal ideation and that he had been involuntarily committed to the Philadelphia Psychiatric Center as a teenager.

5 diagnosed him with a psychiatric disability and placed him on the DOC’s Mental Health Roster, with a “C” designation.8 At some point during his incarceration, he was downgraded to the “B” Roster.9

On December 30, 1995, Williams was referred to a psychiatrist at SCI-Graterford due to manifestations of “depression and anxiety.”10 During an evaluation performed on January 29, 1996, Williams described his psychiatric history of visits to the Philadelphia Psychiatric Center as a young teenager.11 Mental health staff found that he “[p]resented no mental decompensation or emotional problems.”12

8 The DOC scores the mental health of incarcerated people “on a four-point nominal scale system.” J.A. 205. People on the “A” Roster have “no identified psychiatric/[intellectual disability] needs or history of psychiatric treatment.”

People on the “B” Roster have an “identified history of psychiatric treatment, but no current need for psychiatric treatment; [these individuals are] placed on inactive [mental health]/[intellectual disability] roster.”

People on the “C” Roster are “currently receiving psychiatric treatment, but [are] not currently diagnosed with a [serious mental illness] or functional impairment and do[] not have an [intellectual disability] or [are] not [guilty but mentally ill].

Finally, the “D” Roster is for people who are “currently diagnosed with a [serious mental illness], [intellectual disability], credible functional impairment, or [are] [guilty but mentally ill].”

9 J.A. 121. 10 J.A. 294. 11

12

6 However, in 1996, in support of Williams’ Post Conviction Relief Act (PCRA) petition, Dr. Barry Crown, a psychologist and neuropsychologist, and Dr. Robert Fox, a psychiatrist, evaluated Williams and shared their conclusions with his criminal defense attorneys who, in turn, shared them with the DOC.13 Both doctors provided information about Williams’ traumatic childhood and his struggles with mental illness, including his psychiatric hospitalization. Dr. Crown documented Williams’ brain damage and the resulting “impairments and deficiencies” that neuropsychological testing had revealed.14 These included “impaired cognition,” “emotional lability,” and deficiencies in “reasoning capacity.”15 The evaluation confirmed, in his opinion, that Williams was “severely psychologically, cognitively and emotionally impaired.”16 Similarly, Dr. Fox described Williams as having “ingrained psychological and emotional impairments,” including symptoms of Post-Traumatic Stress Disorder and “depression.”17 Williams asserts that copies of

13 The DOC notes that “those declarations were not mentioned in the summary of Williams’ medical records that had been drafted during a review completed by attorneys working for the Capital Habeas Unit of the Federal Community Defender Office for the Eastern District of Pennsylvania.” Appellee Br. 25 n.5. The District Court determined, however, that there was an issue of fact as to whether these declarations were provided to the prison’s mental health staff. Williams v. Wetzel, No. 21- 1248,

, at *9 (E.D. Pa. July 21, 2022). 14 J.A. 51–52. 15 J.A. 52–53. 16 J.A. 55. 17 J.A. 56.

7 the doctors’ declarations were provided to the DOC mental health staff.18

On July 3, 1996, during his period of incarceration at SCI-Graterford, Williams attempted to commit suicide by “ma[king] a noose out of a sheet.”19 In the period leading up to this suicide attempt, Williams told correctional officers that he heard “voices telling him to kill himself.”20 Because of the suicide attempt, Williams was placed in a psychiatric observation cell for two or three days. The cell is “like an isolation cell where they take all your clothes.”21 While confined there, Williams was offered Prozac, which he declined. Williams later told his attending physician and the other mental health professionals that he was “faking” the suicide attempt and had attempted suicide “to get to another [housing] unit[,] to make a phone call[,] just to get out [of] the cell.”22 When subsequently deposed, however, Williams

18 The Secretary argues that even if it had been provided with the doctors’ declarations, these declarations “could not have placed Secretary Wetzel . . . on notice that Williams was mentally ill” because the experts’ opinions were rejected during subsequent PCRA proceedings. Appellee Br. 25–26 (citing Commonwealth v. Williams,

, 110–11, 113 (Pa. 2004)). However, there is no evidence in the record that the DOC was aware of the subsequent PCRA proceedings, and thus nothing to suggest that the determinations in the PCRA proceedings would have altered the DOC’s assessment of whether Williams had a preexisting mental illness. 19 J.A. 114. 20 J.A. 294. 21 J.A. 113–14. 22 J.A. 114.

8 swore that he had in fact attempted suicide, and only told mental health staff that he had been “faking” the attempt in order to get out of the psychiatric observation cell.23

Following this incident, DOC officials removed Williams from the psychiatric observation cell and placed him in disciplinary custody for roughly six months. As a result of his custody status, his property—including his tv and radio— were removed from his cell, and he visited the yard alone. Williams describes disciplinary status as being “isolated on top of being isolated.”24 After being placed in disciplinary custody, Williams did not have further contact with the Mental Health Department.25

B. Confinement on Death Row

Although the Secretary argues that Williams’ placement in solitary confinement was required under Section 4303 of Pennsylvania’s Prison and Parole Code,26 that statute was not enacted until five years after Williams was placed in solitary confinement.27 Williams was placed in solitary initially

23 J.A. 114. 24 J.A. 115–16. 25 This is with the exception that on August 8, 2002, his psychiatric records indicate that he “seem[ed] worried and anxious.” J.A. 294. 26 See

(setting “Prisons and Parole Code” as the reference title for Title 61). 27 In 1998, the Pennsylvania legislature passed Senate Bill 252 (Pr. No. 253), now known as Section 4303. Section 3 of the Act of June 18, 1998, Providing for a Procedure and Method

9 pursuant to the DOC’s internal policy.28 Section 4303 thereafter mandated that upon receipt of a death warrant, “the secretary [of corrections] shall, until infliction of the death penalty . . . keep the [incarcerated person] in solitary confinement.”29 However, where, as here, an inmate’s death warrant expired, it was “entirely a matter of the Department’s discretion where to house an inmate.”30 Until November 2019, the DOC held individuals with expired death warrants in solitary confinement indefinitely. The DOC only abandoned that policy when it settled a class-action brought on behalf of CCU inmates alleging that their CCU conditions violated their Eighth and Fourteenth Amendment rights. The DOC began implementing changes pursuant to the settlement agreement in December 2019.

The conditions of death row solitary confinement have been well-documented by this Court. Before the 2019 settlement agreement, prisoners in the CCU lived in cells no larger than seven feet by twelve feet.31 They were forced to “spend[] the overwhelming majority of [their] time in [their]

of Execution; and Making Repeals, P.L. 80. Williams was placed in solitary confinement in 1993. 28 In November 1982, the DOC began segregating individuals sentenced to death from the general population on its own accord—not pursuant to state statute. See Peterkin v. Jeffes,

(E.D. Pa. 1987), aff’d in part and vacated in part,

(3d Cir. 1988). 29 61 Pa.C.S. § 4303 (2009). 30 Porter v. Pa. Dep’t of Corrs.,

, 445 n.9 (3d Cir. 2020) (quoting Clark v. Beard,

(Pa. Commw. Ct. 2007)).

F.3d at 436.

10 cell[s], including eating [their] meals alone.”32 They were not allowed to leave their cells for more than ten hours per week, including for basic hygiene and work duty and were only permitted to exercise in “cages . . . no more than twice the size of a typical CCU cell.”33 When permitted to leave their cells, CCU prisoners were “handcuffed from behind, or handcuffed in front using a belt and tether” and they were forced to “undergo a visual strip search.”34 Their “[j]ob assignments [we]re limited to janitorial duties on the CCU block, and performed in confined small spaces under close observation and monitoring.”35 Prisoners in the CCU were “precluded from participation in adult basic education courses, vocational learning opportunities or the chance to work towards a high school diploma” and were not permitted to attend group religious services.36

In 2014, the United States Department of Justice (DOJ) published a comprehensive report, in the form of a letter, following its investigation of the Pennsylvania DOC’s use of solitary confinement on individuals with serious mental illnesses, including individuals placed in the CCU.37 In addition to facts we set forth in Porter,38 the DOJ investigation found that all individuals in solitary confinement had to spend almost their entire day confined to cells that are less than 100

32

33

34

35

36

37 We attach the 2014 DOJ report as an Appendix to this opinion. 38 974 F.3d at 436–37.

11 square feet. Most cells lacked exterior windows, and therefore any natural light. Although the lighting inside the cell could be dimmed, it could “never be turned off, even at night,” and “the noise level c[ould] be high . . . because of yelling and banging of neighboring prisoners.”39 The DOJ also found that “the air quality [wa]s often poor because of inadequate sanitation and ventilation[,]” which was of particular concern when individuals smeared feces on the wall; “it[] [was] often left like that for days and the entire pod [would] reek[] of shit and make[] you want to vomit.”40

In addition to physical conditions, the DOJ reported on the DOC’s practices with respect to individuals with serious mental illness held in solitary confinement. The DOJ condemned the DOC’s punitive responses to prisoners exhibiting symptoms of mental illness, noting that the DOC “respond[s] to behaviors that signal mental illness not by seeking to ensure that the inmate received adequate mental health treatment, but instead by imposing additional restrictions on the conditions of the prisoners’ confinement.”41 This included “us[ing] housing assignments within the solitary confinement units as a way to punish prisoners for conduct related to their mental illness,” confining prisoners to their cells 24/7, denying them bedding material and/or running water, and taking away their clothes.42 The DOC also resorted

39 J.A. 070. 40

41 J.A. 071. 42 J.A. 071–72. Perhaps the most repugnant response to manifestations of individuals’ mental illness detailed in the report was one individual’s allegation that when he created a

12 to the unnecessary use of full-body restraints—often for more than seven hours at a time.

The DOJ found that the DOC’s subjection of prisoners with serious mental illness to prolonged periods of solitary confinement was often unjustifiably harsh and resulted in serious harm. The DOJ warned the Secretary that pursuant to Supreme Court precedent set forth in Estelle v. Gamble43 and Farmer v. Brennan,44 the DOC’s use of solitary confinement violated the Eighth Amendment.45 Specifically, it informed the Secretary that the DOC’s use of solitary confinement for extended periods of time on individuals with serious mental illness “constitutes precisely the type of indifference to excessive risk of harm the Eighth Amendment prohibits.”46 The DOJ’s analysis emphasized that individuals with serious mental illness suffer more during prolonged periods of solitary confinement than individuals who do not have this preexisting condition.47 After referencing this Court’s pronouncement that

makeshift noose and “stood on his toilet preparing to kill himself, a group of officers encouraged him . . . . According to the prisoner, the officers told him that they ‘wanted to see his feet dangling,’ and chanted, ‘1. . . 2 . . . 3 . . . kill yourself,’ repeatedly.” J.A. 072. 43

(1976). 44

(1994). 45 J.A. 064–65 (first citing Estelle,

; and then citing Farmer, 511 at 843). 46 J.A. 065. 47 J.A. 070 (“[T]he particular use of solitary confinement on inmates with SMI in the PDOC system, when examined under the totality of the circumstances, includes unjustifiably harsh

13 “[t]he touchstone [of an Eighth Amendment violation] is the health of the inmate,”48 the DOJ found the manner in which the DOC used solitary confinement on prisoners with serious mental illness violated the Eighth Amendment because it: (1) resulted in serious “harm or an unreasonable risk of harm,” (2) interfered with the DOC’s “ability to provide adequate mental health treatment,” and (3) constituted “unjustifiably harsh” and “dehumanizing” conditions.49

The DOJ reached a similar conclusion when considering the DOC’s use of solitary confinement under Title II of the ADA. Specifically, the DOJ found that the DOC’s practices violated Title II because the DOC: (1) unnecessarily segregated individuals with disabilities and failed to modify its policies and practices; (2) failed to individually assess individuals to determine whether placement in segregation was appropriate or justified; and (3) unnecessarily denied opportunities for individuals to engage in and benefit from programming.

conditions, even though some of these conditions, standing alone, might not be inappropriate in other circumstances.”). 48 J.A. 068 (quoting Young v. Quinlan,

(3d Cir. 1992)). 49 J.A. 068–70 (emphasis omitted). At the outset of the report, the DOJ recognized that the DOC had begun reforming the way in which it uses solitary confinement on prisoners with serious mental illness but noted that despite “important improvements, much more work needs to be done to ensure sustained compliance with the mandates of the Constitution and the ADA.” J.A. 063.

14 II. Procedural Background

Williams filed a pro se complaint against the Secretary, asserting Eighth and Fourteenth Amendment claims under

, and a claim under Title II of the ADA. He requested nominal, compensatory, and punitive damages under the Eighth Amendment and the ADA based upon his continued placement in solitary confinement “in light of his history of depression and suicidal ideation.”50

The District Court sua sponte dismissed Williams’ Fourteenth Amendment claim pursuant to

(e)(2)(B)(ii).51

Thereafter, Defendants filed a motion for summary judgment, which the District Court granted.52 The District Court determined that, pursuant to Porter v. Pennsylvania

50 J.A. 009–10. 51 The District Court also sua sponte dismissed Williams’ official capacity claim under §1983 and his individual capacity claim under Title II of the ADA. It determined that Williams’ official capacity claim under § 1983 was barred by the Eleventh Amendment but allowed Williams’ claim against Secretary Wetzel in his individual capacity to proceed. The District Court also held that because Title II of the ADA prohibits only a “public entity” from discriminating against people with disabilities, Williams’ official-capacity ADA claim was tantamount to a claim against the DOC. 52 Prior to this motion, the District Court permitted the defendants to depose Williams, but did not allow for other discovery.

15 Department of Corrections,53 the Secretary was entitled to qualified immunity on Williams’ Eighth Amendment claim. The District Court also granted summary judgment on Williams’ ADA claim. It determined that, although there was a factual dispute as to whether Williams had a disability under the ADA, he could not establish the intentional discrimination necessary to obtain compensatory damages.

III. Jurisdiction and Standard of Review

We have jurisdiction over Williams’ appeal under

, and we conduct plenary review of the grant of summary judgment.54 Summary judgment should be granted only where the record shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”55 We draw all reasonable inferences in the nonmovant’s favor.56

IV. Discussion

Williams argues that the Secretary was not entitled to qualified immunity from Williams’ Eighth Amendment allegations. He contends that the Secretary should have known that continuing to hold someone with his mental and medical history in solitary confinement violated a clearly established right. Defendants, on the other hand, dispute whether the Secretary had adequate notice to defeat the shield of qualified

53

. 54 See Williams v. Sec. Pa. Dep’t of Corrs. (“Williams I”),

(3d Cir. 2017). 55 Fed. R. Civ. P. 56(a). 56 Williams I,

.

16 immunity, as well as whether the Secretary knew of Williams’ mental problems.57

Williams further argues that the District Court erred in granting summary judgment on his ADA claim. Finally, Williams argues that the District Court erred when, pursuant to § 1915(e)(2)(b)(ii), it sua sponte dismissed with prejudice his Fourteenth Amendment claim for failure to state a claim. We will address these arguments in turn.

A. Eighth Amendment Claim

Williams claims that the Secretary forced him to languish in solitary confinement, despite knowledge of his preexisting serious mental frailty, in deliberate indifference to his health and safety, in violation of his Eighth Amendment rights.58 In response, the Secretary only argues that he is

57 At summary judgment, we view the facts in the light most favorable to Williams. Brooks v. Kyler,

, 105 n.5 (3d Cir. 2000). Accordingly, on this record, we must assume that Williams had a preexisting serious mental illness when placed in solitary confinement and notified the DOC of his preexisting serious mental illness. 58 To prove deliberate indifference under the Eighth Amendment, a plaintiff must establish that “(1) he had a serious medical need, (2) the defendants were deliberately indifferent to that need; and (3) the deliberate indifference caused harm to the plaintiff.” See Durham v. Kelley,

(3d Cir. 2023) (describing what a litigant must plead at the motion to dismiss phase). A prison official is deliberately indifferent pursuant to the Eighth Amendment if

17 entitled to qualified immunity because Williams’ right was not clearly established. The Secretary does not dispute that Williams’ Eighth Amendment right to be free from cruel and unusual punishment was violated.59 Accordingly, that argument is forfeited.60

1. Qualified Immunity

“Under the doctrine of qualified immunity, ‘officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.’”61 To determine whether a government official is entitled to qualified immunity, we must ask whether (1) the facts put forward by the plaintiff show a violation of a constitutional right and whether (2) the right was clearly established at the

the official knows an incarcerated person faces “a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer,

. 59 He would have been hard-pressed to make such an argument, given that Porter recognized that “prolonged solitary confinement . . . poses a substantial risk of serious psychological and physical harm.” 974 F.3d at 441–43. 60 See Barna v. Board of School Directors of Panther Valley School District,

(3d Cir. 2017) (‘“[F]orfeiture is the failure to make the timely assertion of a right,’ an example of which is an inadvertent failure to raise an argument.”) (quoting United States v. Olano,

(1993)). 61 Williams I,

(quoting Harlow v. Fitzgerald,

(1982)).

18 time of the alleged misconduct.62 We need not “tackle these steps in sequential order.”63 Because the Secretary does not dispute that Williams’ Eighth Amendment right was violated, we need only consider whether the right was clearly established at the relevant time.

To determine whether the right was clearly established, we examine the state of the relevant law when the violation allegedly occurred.64 A right is clearly established where existing precedent has “placed the statutory or constitutional question beyond debate.”65 “[G]eneral statements of the law are not inherently incapable of giving fair and clear warning . . . .”66 Moreover, the facts in existing precedent “need not perfectly match” the circumstances of the case at hand.67 The “ultimate question” in the qualified immunity analysis “is whether the defendant had fair warning that his conduct deprived his victim of a constitutional right.”68 “[O]fficials can still be on notice that their conduct violates established law

62 Peroza-Benitez v. Smith,

(3d Cir. 2021). 63 Williams I, 848 F.3d at 557–58 (first citing Pearson v. Callahan,

, 234–36 (2009); and then citing Werkheiser v. Pocono Twp.,

(3d Cir. 2015)). 64 Williams I,

. 65 Ashcroft v. al–Kidd,

, 741 (2011) (first citing Anderson v. Creighton,

(1987); and then citing Malley v. Briggs,

(1986)). 66 Lanier,

. 67 Williams I,

. 68 Schneder v. Smith,

(3d Cir. 2011) (quoting Hope v. Pelzer,

(2002) (internal quotation marks omitted)).

19 even in novel factual circumstances”69 because “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’”70 Therefore, common sense may dictate that a constitutional violation has occurred where a constitutional violation is “so obvious” that a government official has “fair warning” that the conduct is unconstitutional.71

Given the nearly infinite combination of factors that can underlie a given claim, requiring an exact factual match with prior decisions would be tantamount to morphing qualified immunity into absolute immunity because no plaintiff could ever identify a sufficiently identical precedent.72 We do not, therefore, limit our focus to whether we have previously decided cases with identical facts and circumstances.

However, before we can turn to relevant caselaw, we must appropriately “frame the right”73 that Williams alleges was violated, “with all reasonable inferences drawn in” his

69 Hope,

. 70

(quoting Lanier, 520 U.S. at 270–71) (alteration in original). 71

72 See Williams I,

(“Requiring that precedent and subsequent disputes rest on identical facts would license state actors to violate constitutional rights with impunity simply by varying some irrelevant aspect of constitutional violations.”). 73 Peroza-Benitez,

.

20 favor, as the nonmovant.74 The Supreme Court has cautioned against framing the right at “a high level of generality.”75 Instead, we must “define the right allegedly violated at the appropriate level of specificity”76 to determine “whether the violative nature of particular conduct is clearly established.”77 This inquiry should consider the specific context of the case, not simply a broad proposition.78

The District Court appears to have defined the right at issue here as a death row prisoner’s Eighth Amendment right not to be held in solitary confinement. It then determined that pursuant to our prior decision in Porter, Williams’ alleged right had not been clearly established. However, in its analysis, the District Court failed to frame the right with the “appropriate level of specificity” 79 because it ignored the relevance of Williams’ preexisting serious mental illness and the Secretary’s knowledge of it, along with the lack of a penological justification for placing and continuing to hold Williams in solitary confinement.

74 Mack v. Yost,

(3d Cir. 2023) (first citing Peroza-Benitez, 994 F.3d at 165–66; and then citing Tolan v. Cotton,

(2014)). 75 Ashcroft, 563 U.S. at 742. 76 Sharp v. Johnson,

(3d Cir. 2012) (citing Williams v. Bitner,

(3d Cir. 2006)). 77 Mullenix v. Luna,

(2015) (per curiam) (quoting Ashcroft, 563 U.S. at 742). 78 See Peroza-Benitez,

. 79 Peroza-Benitez

(quoting Sharp,

).

21 There is evidence in the record that Williams was diagnosed with depression and suicidal ideation before he began his twenty-six years in solitary confinement. There is also evidence that he told a DOC psychologist that he “had a history of suicidal ideation and [had been] involuntarily committed to [the] Philadelphia Psychiatric Center when [he] was 13 years old.”80 It is undisputed that, at some point during his incarceration, he was placed on the DOC’s Mental Health Roster with a “C” designation, which is reserved for individuals requiring psychiatric treatment.81 Viewing the facts in the light most favorable to Williams, we also consider that declarations from Williams’ doctors, documenting his childhood psychiatric hospitalization, “impaired cognition,” “emotional lability,” and deficiencies in “reasoning capacity,” were provided to the DOC.82

Although the Secretary argues that the record does not support Williams’ assertion that the Secretary knew or should have known about his preexisting serious mental illness, the record does raise a genuine dispute of fact as to the DOC’s knowledge that Williams was seriously mentally ill. Where “issues of fact may preclude a definitive finding on the question of whether the plaintiff’s rights have been violated, the court must nonetheless decide whether the right at issue

80 J.A. 252. 81 The DOC’s classification of Williams’s mental illness is a relevant—but not dispositive—factor when analyzing whether his mental illness was serious. And the record raises a genuine dispute of material fact about whether Williams had a known preexisting serious mental illness for the reasons provided above. 82 J.A. 52–53.

22 was clearly established.”83 Therefore, we must decide whether the right of a death row prisoner, with a known preexisting serious mental illness not to be placed and held in prolonged solitary confinement—without penological justification—was clearly established at the relevant time. We hold that it was.

2. Individuals with a Known History of Serious Mental Illness Have a Clearly Established Right to Not Be Subjected to Prolonged Solitary Confinement Without Penological Justification

It is well established that prison officials may not act with “deliberate indifference” to a person’s health or safety,84 and that we may infer the existence of this subjective state of mind from the fact that the risk of harm at issue is obvious, though ignored.85 Further, this Court has long held that in assessing the conditions of segregated housing units, the “touchstone is the health of … inmate[s],” including their mental health.86 Undoubtedly, holding a prisoner with a known preexisting serious mental illness in solitary confinement for a protracted period without penological justification would result in “unnecessary and wanton infliction of pain.”87 This violation is so obvious that the Supreme Court and Third Circuit cases gave respondents fair notice that this treatment of Williams was unlawful.

83 Spady v. Bethlehem Area Sch. Dist.,

, 637 n.4 (3d Cir. 2015). 84 Hudson v. McMillian,

(1992). 85 Farmer,

. 86 Young,

. 87 Whitley v. Albers,

(1986).

23 Our precedents leave no room for doubt that individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged solitary confinement without penological justification, regardless of their sentence. In Young, one of the many cases the DOJ report relied upon, we held that the district court had erred by granting summary judgment to the defendants on Young’s Eighth Amendment claims because Young had raised a material dispute as to the conditions of his solitary confinement.88 In so doing, we clarified that when evaluating Eighth Amendment allegations concerning segregated housing units, “[t]he touchstone is the health of the inmate.”89 Further, we explained that “[t]he duration and conditions of segregated confinement cannot be ignored in deciding whether such confinement meets constitutional standards.”90 Highly relevant to this analysis is that prisons may not punish in a way that “threatens the physical and mental health of prisoners.”91 Indeed, after recognizing that segregated detention cannot be “foul, inhuman or totally without penological justification,”92 we

88 Young, 960 F.2d at 363–64. 89

. 90

(first citing Hutto v. Finney,

, 686–87 (1978); and then citing Smith v. Coughlin,

(2d Cir. 1984)). 91

at 685–86 (“Courts . . . have universally condemned conditions of segregation inimicable [sic] to the inmate- occupants’ physical health, and, in some instances, have also considered conditions that jeopardize the mental health or stability of the inmates so confined. . . . While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners.”). 92

24 explained that Young’s preexisting physical illness made his solitary confinement even more inhumane,93 just as Williams’ preexisting mental illness did here.

We have recently explained that Young “recognized that determining the constitutionality of prison conditions is a heavily fact-specific inquiry, where the particular characteristics of the prisoner raising the challenge are taken into consideration.”94 Relying on Supreme Court precedent, we held, in Clark, that someone with a known preexisting serious mental illness has a clearly established right since at least 2016 not to be held in prolonged solitary confinement.95 There, the plaintiff’s allegations that “he was kept in conditions of almost complete isolation for seven months by officials who knew him to be seriously mentally ill” were sufficient to allege an Eighth Amendment violation.96 In so holding, we drew from Palakovic v. Wetzel,97 and a “robust consensus of [district court] decisions” holding unconstitutional the practice of “assigning mentally ill prisoners to solitary confinement.”98 In

93 Id. at 365 (noting the fact that Young’s HIV-positive status made his unsanitary conditions “all the more revolting” because he was “more susceptible to infection and disease”). 94 Clark, 55 F.4th at 179, 181–82, 184–85. 95 See id. 96 Id. at 186. 97

(3d Cir. 2017), 98 Clark, 55 F.4th at 186–87 (citing Ind. Pro. & Advoc. Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr., No. 1:08-cv-01317- TWP-MJD,

, at *23 (S.D. Ind. Dec. 31, 2012) (placing seriously mentally ill inmates in solitary confinement threatened permanent injury and violated the

25 reaching this conclusion, we noted that Clark had adequately alleged deliberate indifference because he claimed that, like in Palakovic, the DOC defendants knew he was seriously mentally ill and knew that placing him in solitary confinement would cause him severe harm.99 In Palakovic, a plaintiff, “diagnosed with a number of serious mental disorders,”100 committed suicide after he was repeatedly placed in solitary confinement for “multiple 30-day stints” during a thirteen- month period.101 There, we held that allegations that “prison

Eighth Amendment); Jones “El v. Berge, 164 F. Supp. 2d. 1096, 1101–02 (W.D. Wis. 2001) (granting injunctive relief where conditions of solitary confinement “can be devastating” to mentally ill individuals housed in supermax prison); Madrid v. Gomez,

, 1265–66 (N.D. Cal. 1995) (concluding that mentally ill inmates “in the SHU is the mental equivalent of putting an asthmatic in a place with little air to breathe’ and therefore unconstitutional”); Coleman v. Wilson,

, 1320–21 (E.D. Cal. 1995) (concluding that segregating inmates with serious mental disorders violates their Eighth Amendment rights); Casey v. Lewis,

, 1549–50 (D. Ariz. 1993) (holding the practice of assigning seriously mentally ill inmates to segregated housing “despite their knowledge of the harm” constitutes an “appalling” Eighth Amendment violation); Langley v. Coughlin,

(S.D.N.Y. 1989) (holding viable claim that prison officials” failure to “screen out” those inmates that “by virtue of their mental condition, are likely to be severely and adversely affected by placement there”)). 99 Clark, 55 F.4th at 180–81. 100

. 101

.

26 officials knew the conditions of confinement “were inhumane for [Palakovic] in light of his mental illness,”102 yet continued to subject him to severe isolation, were “more than sufficient” to state an Eighth Amendment claim.103

We then determined in Clark that qualified immunity did not apply because “the right of a prisoner known to be seriously mentally ill to not be placed in solitary confinement for an extended period of time by prison officials who were aware of, but disregarded, the risk of lasting harm posed by such conditions,” was well established at the time of the violative conduct.104 Even though Clark concerned violations that began in January 2016, we recognized that the constitutional right was “long protected by Eighth Amendment jurisprudence,”105 including Young, Farmer, and Hope.106 We determined that Third Circuit and Supreme Court precedent supported our conclusion that Clark’s right was clearly established, and found that the defendant had fair notice that he was violating Clark’s right in light of our precedents, prison policy, state statute, and a federal lawsuit that survived a motion to dismiss.107 Here, we rely on much of the same law

102 Clark, 55 F.4th at 179 (quoting Palakovic,

). 103 Palakovic,

. Because Palakovic did not consider qualified immunity, we had no occasion to determine whether the Eighth Amendment right was clearly established at the time of the violative conduct, which began in 2011,

and do not rely on this case in concluding that Williams’ right was clearly established as of at least 2014. 104 Clark, 55 F.4th at 182. 105 Id. at 181 (emphasis added). 106 Id. at 183–85. 107 Id. at 180–88.

27 that we did in Clark and determine that the Secretary had fair notice that Williams’s conditions of confinement violated the Eighth Amendment because controlling precedent clearly established the right of a death row prisoner with a known preexisting serious mental illness not to be held in prolonged solitary confinement without penological justification.

This conclusion is easily buttressed by the comprehensive 2014 DOJ report, which—relying on Farmer, Hope, Young, and other binding precedent—warned the Secretary that the DOC’s practices of knowingly holding seriously mentally ill prisoners in solitary confinement for extended periods of time was cruel and unusual.108 The DOJ concluded a months’ long investigation and determined that the DOC’s “use of a harsh form of solitary confinement for extended periods of time on hundreds of prisoners with [serious mental illness]/[intellectual disability] constitutes precisely the type of indifference to excessive risk of harm the Eighth Amendment prohibits.”109 The DOJ then advised the DOC—and Secretary Wetzel specifically—of its findings, including its detailed analysis of how the DOC’s practices violated Supreme Court and Third Circuit precedent.

We have recognized that a variety of sources can be considered when evaluating whether officials received fair warning that their conduct was unlawful.110 The Supreme

108 Id. at 180. 109 J.A. 065 (emphasis added). 110 Clark v. Coupe,

(3d Cir. 2022) (“Both Supreme Court and this Court’s precedents consider district court cases, prison regulations, and state statutes in

28 Court recognized in Hope v. Pelzer that DOJ reports like this one should not be ignored when determining whether officials had fair notice that they were violating clearly established law.111 In Hope, the Supreme Court held that the DOJ’s warning to the Alabama Department of Corrections that its practice of shackling individuals to a hitching post was unconstitutional supported the determination that it was clearly established that such practices violated the law.112 Even though there was “nothing in the record indicating that the DOJ’s [report was] communicated to [the individual defendants],” the Court nonetheless relied on it because other DOJ communications with the Alabama Department of Corrections “len[t] support to the view that reasonable officials in the ADOC should have realized” the alleged treatment violated the Eighth Amendment.113

The 1994 DOJ report in Hope was not nearly as authoritative and informative as the letter that the DOJ sent to the Secretary here. The 1994 DOJ report stated that “[t]he hitching pole policy is inappropriate and violates constitutional standards.”114 In three paragraphs, it explained that the

determining whether officials received fair warning that their conduct was unreasonable.”). 111 536 U.S. at 744–46. 112 Id. at 744. 113 Id. at 745. 114 U.S. Dep’t of Justice, Notice of Findings from Investigation of Easterling Correctional Facility (Alio, Alabama), inc. Review of Medical Care at Easterling Correctional Center June 1994 (Mar. 27, 1995) at 3, https://clearinghouse.net/case/535/. The DOJ also noted at the outset of the document that it found

29 hitching pole “should never be used as punishment,” that the staff does not comply with its own policies regarding the hitching pole, and that the dehumanizing practice is “potentially dangerous.”115 However, unlike the DOJ report here, the 1994 report did not rely upon, nor cite to cases or external sources to support its conclusions.

In contrast, the 2014 DOJ report, which was twenty- five-pages long and sent directly to the Secretary, was replete with citations to Supreme Court and Third Circuit cases, case studies, and statistics to support its conclusion that the DOC’s solitary confinement of individuals with serious mental illness violated the law. More than ten pages of the report analyzed and explained how the DOC’s specific practices violated the Eighth Amendment. In Hope, the DOJ’s conclusory constitutional determination buttressed the Court’s conclusion that the law was clearly established. The 2014 DOJ report serves the same function and provides the same notice as it did in Hope.116

“significant constitutional violations in two major areas.” Id. at 1. It explained that “[i]n order to bring Easterling up to constitutional standards, [it] recommend[ed] implementation of . . . remedial measures,” including “[c]eas[ing] use of the ‘security bar’ or any other form of corporal punishment or improper restraint including, but not limited to: shackling inmates to fences, posts, rails, cell bars, or other stationary objects.” Id. at 4–5. 115 Id. at 3. 116 Id. at 745-46 (“Even if there might once have been a question regarding the constitutionality of this practice, the Eleventh Circuit precedent . . . as well as the DOJ report

30 Relying on Hope, the 2014 DOJ report explained precisely why the DOC’s use of solitary confinement on prisoners with serious mental illness was unconstitutional under controlling precedent:

By subjecting prisoners with [serious mental illness (“SMI”)] to prolonged periods of solitary confinement under harsh conditions that are not necessary for legitimate security- related reasons, [the DOC] exposes them to an excessive and obvious risk of serious harm. See Farmer,

; Hope v. Pelzer,

(2002) (holding that prison officials show deliberate indifference where they disregard obvious risks to prisoner safety). Moreover, our expert-consultants observed that as a direct result of these practices, prisoners with SMI have suffered serious psychological and physical harms, including psychosis, trauma, severe depression, serious self injury, and suicide. Cf Young v. Quinlan,

(3d Cir. 1992) (“The touchstone is the health of the inmate. While the prison administration may punish, it must not do so in a manner that threatens the physical and mental health of prisoners.”).117

condemning the practice, put a reasonable officer on notice that the use of the hitching post under the circumstances alleged by Hope was unlawful.”). 117 J.A. 068.

31 The DOJ went on to explain that the manner in which the [DOC] used solitary confinement posed an “excessive risk to the mental health of prisoners” and “violated the Eighth Amendment.”118 First, it specifically stated that “lengthy periods of solitary confinement involve[d] conditions that [the DOJ’s] expert-consultants found subjected prisoners to harm or an unreasonable risk of harm and contribute[d] to the Constitutional violation.”119 Undoubtedly, this included individuals like Williams, who had a history of serious mental illness and had nevertheless been held in solitary confinement for over twenty years. Second, the DOJ found that “the manner in which []DOC use[d] solitary confinement interfere[d] with its ability to provide adequate mental health treatment to prisoners with SMI and contribute[d] to the Constitutional violation.”120 The Pennsylvania DOC’s use of solitary confinement likely also interfered with Williams’ treatment. This record supports the conclusion that Williams’ already- fragile mental health deteriorated to the point that he attempted suicide while held in solitary confinement. Although the Secretary notes that Williams was offered Prozac after his suicide attempt, the 2014 DOJ report makes clear that “[a]ppropriate mental health treatment for prisoners with SMI should involve much more than medication.”121 And third,

118

(citing Peterkin v. Jeffes,

(3d Cir, 1988)). 119

(emphasis omitted). 120 J.A. 069 (emphasis omitted). 121 J.A. 069.

32 citing the Supreme Court’s decision in Wilson v. Seiter,122 the 2014 DOJ report recognized that “unjustifiably harsh conditions often attend[ed] [DOC]’s use of prolonged solitary confinement on prisoners with SMI. In combination, these conditions [we]re dehumanizing and cruel and contribute[d] to the Constitutional violation.”123 It further explained how the DOC’s use of solitary confinement on prisoners with serious mental illness resulted in harm, noting, for example, that “more than 70 percent of documented suicide attempts between January 1, 2012 and May 31, 2013 occurred in solitary confinement units.”124

The significance of the 2014 DOJ report simply cannot be ignored. The Secretary was directly informed that under binding precedent, placing someone with a known history of serious mental illness in solitary confinement for a prolonged period of time without penological justification clearly was unlawful.125 We therefore conclude that the Secretary personally had fair warning by 2014—at the very latest—that

122

(1991) (holding that conditions of confinement violate the Eighth Amendment when they combine to “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need”). 123 J.A. 070 (emphasis omitted). 124 J.A. 064 (emphasis added). 125 This notice is similar to that in Clark, in which we determined that a federal lawsuit surviving a motion to dismiss gave “prison officials . . . direct notice that their conduct regarding solitary confinement potentially violated the Eighth Amendment,” and supported our conclusion that Clark alleged the violation of a clearly established law.

(emphasis added).

33 Williams’s conditions of confinement clearly violated basic principles of Eighth Amendment established by controlling precedent.126 And that personal notice buttresses our holding that a reasonable person in the Secretary’s shoes would have known that it clearly violated basic principles of Eighth Amendment law—established by controlling precedent—to hold a death row prisoner with a known history of serious mental illness in solitary confinement for a prolonged period of time without penological justification.

The Secretary argues that Porter forecloses this conclusion, but that argument fails. Porter, like Clark and Palakovic, also concerned prolonged solitary confinement, but it only concerned people of sound mind when first placed in solitary confinement. In Porter, we held that keeping a prisoner sentenced to death in solitary confinement for thirty- three years violated the Eighth Amendment, however, qualified immunity applied because “[w]e ha[d] not found Eighth Amendment cases with sufficiently similar fact patterns.”127 Although Palakovic “certainly acknowledge[d] the dangers of solitary confinement,” we “distinguishe[d] Palakovic from Porter’s case” on the basis “that the plaintiff was not on death row and had specific known mental health

126 In Busanet v. Wetzel, No. CV 21-4286,

, at *10–14 (E.D. Pa. Aug. 4, 2023), the court—on similar facts—concluded that the right of an individual on death row with preexisting mental illness not to be held in prolonged solitary confinement was clearly established. We find Judge McHugh’s reasoning to be sound, and echo many of the same principles throughout this opinion. 127

.

34 issues pre-assignment to solitary confinement.”128 Therefore, it was not yet clearly established that the Eighth Amendment prohibited placing a person without a known preexisting serious mental illness in prolonged solitary confinement while on death row prior to our deciding Porter in 2020.129

The Secretary argues that based on Porter, Williams’ sentence—and not his health—controls the analysis. Porter indeed recognized that the sentence an individual serves may be relevant, but the “touchstone” of an Eighth Amendment analysis has long been, and remains, “the health of the inmate[,]”130 not his sentence. Just as the known preexisting mental illness pre-assignment to solitary confinement was a distinguishing factor in Porter, it is a distinguishing factor here. As Porter recognized, this distinction is important. Our precedents have made clear that solitary confinement can “cause cognitive disturbances” after “even a few days”131 in a person without a preexisting mental illness; obviously, such prolonged confinement is particularly cruel for a person with “severely compromised mental health.”132 In other words, Porter certainly suggests that being on death row may be relevant to an Eighth Amendment analysis in some contexts. It is not possible, however, to read Porter as standing for the proposition that the Eighth Amendment rights for individuals with known preexisting serious mental illness turn on the nature of their sentences—a non-health related concern.

128

(emphasis added). 129 See

. 130 Young,

. 131 Williams I,

(citation omitted). 132 Clark,

. (alterations in original).

35 Next, the Secretary argues that respondents did not violate clearly established law because the DOC purportedly kept Williams in solitary confinement pursuant to an internal policy interpreting 61 Pennsylvania Consolidated Statute, Section 4303. In doing so, the Secretary gives tremendous weight to an internal DOC policy that is actually irrelevant. The Secretary begins by noting that Williams was initially placed in solitary confinement pursuant to Section 4303. That is simply wrong.133 Williams was initially placed in solitary confinement in 1993, and Section 4303—directing placement in solitary confinement for death-row prisoners—did not go into effect until five years later.134 In other words, although the DOC knew that Williams had a preexisting serious mental illness, Williams nevertheless languished in solitary confinement after the expiration of his death warrant, not because of Section 4303, but because of the DOC policy that remained in effect until 2019, when the DOC settled the Eighth Amendment and ADA claims brought against it.

According to the Secretary, he is entitled to qualified immunity because keeping Williams in solitary confinement for twenty-six years was “consistent with the [DOC] policy in effect during the relevant period of time.”135 The sole support

133 See supra Section I.b., n. 34, 35. 134 1998 Pa. Legis. Serv. Act 1998-80 (West). 135 Appellee Br. 21. Defendants do not argue that Section 4303 prohibited them from removing death-row prisoners, like Williams, from solitary confinement after their death warrant had expired. Nor could they. The Pennsylvania Commonwealth Court has held that pursuant to Section 4303, “[o]nce [a death] warrant has expired . . . . ‘it is entirely a

36 for this conclusory assertion is a citation to Williams I, in which we stated that the DOC’s interpretation of Section 4303, which resulted in the DOC’s continued confinement of individuals on death row, was “not without support.”136

The relevant passages from Williams I are inapposite, as that opinion addressed alleged violations of procedural due process rights, not cruel and unusual punishment.137 Moreover, in Williams I, we had no occasion to consider whether the DOC’s indiscriminate practice of keeping people with known preexisting serious mental illness in solitary confinement indefinitely without penological justification was reasonable because the plaintiff did not allege that he had a known preexisting serious mental illness. And absent individualized evidence demonstrating that prison officials kept an inmate in solitary confinement for a legitimate penological purpose, DOC’s blanket policy of keeping people with known preexisting serious mental illness in solitary confinement solely because they were sentenced to death, even

matter of the Department’s discretion where to house an [incarcerated person].’” Porter,

n.9 (quoting Clark v. Beard,

). Therefore, after 2005, when Williams’ warrant expired, the DOC had discretion as to where to hold him. 136 Williams I,

. 137 See

at 557–76. Even if Williams I did concern cruel and unusual punishment, it would still be inapplicable. In Williams I, we concluded that the DOC’s policy was “only relevant to our qualified immunity analysis because the case law . . . did not adequately inform [the defendants] that the policy ran counter to Plaintiffs’ protected liberty interests.” As explained, that is not the case here.

37 in the absence of an active death warrant, amounted to “foul” and “inhuman” “conditions of confinement . . . without penological justification,”138 a classic Eighth Amendment violation.139 Moreover, we are not willing to accept the argument that one can escape liability by relying upon a policy that s/he knows to be unconstitutional.140 Given the 2014 DOJ report, the Secretary had to know that any policy requiring an individual with a known preexisting serious mental illness to be confined in solitary without a legitimate penological justification was contrary to law.141

Accordingly, we hold that individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged, indefinite solitary

138 Clark,

(quoting Young,

). 139 The cruelty of the DOC’s policy is exacerbated by the practice of keeping lights in solitary cells on twenty-four hours a day. We cannot think of any legitimate penological purpose for this—especially given the impact it could have on someone with serious mental illness; and the Secretary offers none. 140 Just as we do not “equate policy violations with constitutional violations,” McKenna v. City of Philadelphia,

(3d Cir. 2009), adherence to policy does not compel the conclusion that no constitutional violation occurred. 141 Moreover, Secretary Wetzel readily admits that he “is familiar with the work of [researcher] Dr. [Craig] Haney, which sets forth at length the harmful effects of solitary confinement.” Johnson v. Wetzel,

(M.D. Pa. 2016). In light of this research, he acknowledges that “‘long term’ solitary confinement ‘certainly could’ have negative effects on mental health.”

38 confinement—without penological justification—by an official who was aware of that history and the risks that solitary confinement pose to someone with those health conditions. To hold otherwise would fail in the face of Eighth Amendment jurisprudence. 142 Given this record, the right at issue was clearly established.

The dissent improperly truncates our holding, and then criticizes the subsequent vagueness created by its own truncation. Despite the dissent’s assertion to the contrary, we do not hold that “prison officials [are prohibited] from housing a mentally ill inmate in solitary confinement for long periods of time.”143 Indeed, our holding is limited to the specific allegations of this appeal from the grant of summary judgment and is as we have just stated in the preceding paragraph.

142 As previously stated, Williams also argues that the Secretary is not entitled to qualified immunity because he was deliberately indifferent to Williams’ health and safety by knowingly subjecting him to twenty-six years in solitary confinement, despite his awareness of the serious risks such confinement posed. The District Court did not address this argument, and we need not reach it because we determine that the Secretary is not entitled to qualified immunity since there is a material issue of fact as to whether Williams put forth enough evidence to show a violation of a constitutional right, and the right at issue was clearly established. 143 Dissent at 2 (quoting Clark v. Coupe,

) (internal quotation marks omitted) (describing how the lower court framed the right before clarifying the right to be more specific).

39 Lest there be any confusion, we reiterate that we hold “that individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged, indefinite solitary confinement—without penological justification—by an official who was aware of that history and the risks that solitary confinement pose to someone with those serious health conditions.”144 That is nearly identical to the holding in Clark v. Coupe,145 and it is hardly a novel or surprising proposition. In Clark, we framed the clearly established right at issue as: “the right of a prisoner known to be seriously mentally ill to not be placed in solitary confinement for an extended period of time by prison officials who were aware of, but disregarded, the risk of lasting harm posed by such conditions.”146 Relying on much of the same binding precedent Clark did,147 our current holding merely clarifies that the clearly established right in Clark extends to individuals on death row.

Having clarified our holding, and again highlighted the many cases we rely upon to conclude that the right was clearly established here, the remainder of the dissent’s criticisms about our use of the 2014 DOJ report have little force. As we noted, the 2014 DOJ report concisely packaged much of the relevant

144 Op. 33-34 (emphasis added). 145

at 182. 146

147 Clark relied, inter alia, on Hope v. Pelzer,

(2002), Farmer v. Brennan,

(1994), Palakovic v. Wetzel,

(3d Cir. 2017), and Young v. Quinlan,

(3d Cir. 1992), in concluding that the right at issue was clearly established. We do the same.

40 and binding law and delivered it to the defendant’s doorstep.148 In disparaging the relevance of the DOJ report to our analysis, our dissenting colleague misses the point. The DOJ letter addressed to Secretary Wetzel is not important because it had the force of legal precedent. We agree that it obviously did not and could not have had the force of legal precedent. That is simply not the point, and it is not why the DOJ report that was on the record here is so important. Rather, it is important because it directly informed the Secretary that the practice of solitary confinement that had been investigated was a violation of the Eighth Amendment based upon the judicial decisions cited in the letter. The dissent would prefer we ignore that notice, but binding precedent and the fact that Secretary Wetzel was personally informed of the constitutional violation establish its relevance. And that personal notice simply buttresses our conclusion that controlling precedent clearly established that the conditions of Williams’s confinement violated the Eighth Amendment.

148 Op. at 24. Notably, the dissent relies upon the hallowed precedent of Marbury v. Madison,

(1803), to suggest that our holding somehow violates the separation of powers, ignores the obvious principle that the courts, and not the executive branch, determine what is legal precedent. See Dissent at 5. Ironically, while expressing concern that the Majority disregards the role of the courts as set forth in Marbury v. Madison, our dissenting colleague relies on a single judge concurrence that disparages Supreme Court jurisprudence. Dissent at 7 (citing United States v. Grant,

, 201– 07 (3d Cir. 2021) (en banc) (Hardiman, J., concurring) (criticizing the Supreme Court for “stray[ing] far from the text and original meaning of the Eighth Amendment”).

41 Moreover, our use of the DOJ report here is no more in tension with Marbury v. Madison than the Supreme Court’s use of the analogous DOJ report in Hope v. Pelzer. In both cases, the DOJ report buttresses the conclusion that “a reasonable person would have known” of the Eighth Amendment violation.149 Following Lanier, which established the “fair warning” standard, Hope makes clear that for purposes of qualified immunity, the “salient question” is whether the state of the law gives defendants “fair warning” that their alleged conduct was unconstitutional.150 Following that precedent, the Supreme Court explicitly held that “in light of binding Eleventh Circuit precedent, an Alabama Department of Corrections (ADOC) regulation, and a DOJ report informing the ADOC of the constitutional infirmity in its use of the hitching post . . . the respondents’ conduct violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’”151

It should not be a controversial or novel proposition that a personalized report setting forth binding, applicable case law, and detailing how a specific defendant is systematically violating the Eighth Amendment, is highly relevant to a finding that such defendant had “fair notice.” We simply cannot agree with our dissenting colleague’s belief that the defendants should nevertheless be wrapped in the protective cloak of

149 Hope,

(citing Harlow,

). 150 Id. at 741. 151 Id. at 741–42 (citing Harlow,

) (emphasis added).

42 qualified immunity after such “fair and clear warning” of the clearly established law.152

Finally, the dissent complains that even if we are correct in concluding that individuals with a known serious mental illness have the right not to be held in prolonged, indefinite solitary confinement, the case law upon which we rely does not provide adequate notice with regard to individuals on death row.153 But as already explained, the health of the incarcerated person is what drives the Eighth Amendment analysis, not the type of sentence.154 Moreover, as early as the 19th century, the Supreme Court has recognized that solitary confinement is a severe and additional punishment even for people on death row.155

B. Fourteenth Amendment

The District Court assumed Williams was bringing a substantive due process claim under the Fourteenth Amendment and concluded that Williams’ conditions-of- confinement claim was only cognizable under the Eighth

152 Lanier,

(1997). 153 See Dissent at [5]. 154 See Op. at 31. 155 See In re Medley,

, 167–71 (1890). Although the Eighth Amendment was not considered in Medley, the Court concluded without hesitation that solitary confinement is “an additional punishment of the most important and painful character” that violates the ex post facto provision of the Constitution when added to a sentence after the offense has been committed because it increases the punishment.

.

43 Amendment. We review de novo a district court’s sua sponte dismissal of a claim under

(e)(2), and we review a district court’s decision not to grant leave to amend for abuse of discretion.156

Because Williams was proceeding pro se, his complaint should have been liberally construed as asserting a Fourteenth Amendment procedural due process claim.157 Williams’ allegations that he was subjected to “automatic placement in indefinite solitary confinement” and “without either individually assessing the risk he may actually and objectively pose for others . . . or otherwise justifying the need for isolations [sic],” indicates that he was alleging that he had been kept in solitary confinement without meaningful review or an opportunity to be heard.158

Nonetheless, at the time of Williams’ confinement, the due process rights of an active death-row prisoner had not been clearly established. The Court in Williams I held that individuals on death row who had been granted resentencing hearings had a liberty interest that prohibited the state from housing them in solitary confinement on death row without “regular and meaningful review of their continued placement.”159 However, we did not reach a conclusion as to whether the due process clause of the Fourteenth Amendment limited the State’s ability to subject prisoners with active death

156 Dooley v. Wetzel,

(3d Cir. 2020). 157 See Vogt v. Wetzel,

(3d Cir. 2021). 158 J.A. 048–49. 159

(emphasis in original).

44 row sentences to prolonged solitary confinement.160 Similarly, in Porter we did not reach a determination as to whether prisoners with active death row sentences had a procedural due process claim.161 Given that we have not determined whether an active death-row prisoner has a procedural due process interest in avoiding continued solitary confinement, the DOC is entitled to qualified immunity on this claim. C. Claim Under the Americans with Disabilities Act (ADA)

The DOC does not escape liability under the ADA because it placed and held Williams in solitary confinement pursuant to a since-revoked DOC policy. The District Court acknowledged that there was a material dispute of fact as to whether the Secretary knew Williams suffered from serious mental illness. Drawing all inferences in favor of Williams, we must assume that the Secretary was aware of Williams’ serious mental illness. Therefore, under the ADA, the DOC had an obligation to modify its practices to ameliorate the harms of prolonged solitary confinement on Williams, or alternatively, demonstrate that the modifications would

160 See

at 552 n.2 (stating that the Court “take[s] no position on whether any inherent risk posed by inmates whose death sentences are still active and viable is sufficient to raise a presumption that their continued confinement on death row is justifiable”). 161 See Porter,

n.2 (reasoning that it need not decide whether a prisoner on death row who has “not been granted [a] resentencing[] hearing and vacatur ha[s] a procedural due process interest in avoiding continued solitary confinement” (citing Williams I,

n.2)).

45 fundamentally alter the nature of the “service, program or activity.”162 The DOC failed to do either of those things. Additionally, we find that Williams has stated a claim of deliberate indifference under the ADA where—viewing the facts in the light most favorable to Williams—the Secretary knew Williams had a preexisting serious mental illness, was aware of the risk of prisoner safety, and failed to act despite this knowledge. 1. The Elements of an ADA Claim

To bring a claim under the ADA, Williams “must demonstrate: (1) he is a qualified individual; (2) with a disability; (3) [who] was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of his disability.”163 The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual,” “a record of such an impairment,” or “being regarded as having such an impairment.”164 “[M]ental illness qualifies as a disability under” the ADA.165 The District Court correctly concluded that there is an issue of material fact as to whether the DOC knew that Williams had a serious mental

162

(b)(7). 163 Haberle v. Troxell,

, 178–79 (3d Cir. 2018) (quoting Bowers v. Nat’l Collegiate Athletic Ass’n, 475, F.3d 524, 533 n.32 (3d Cir. 2007)) (alterations in original). 164

(1). 165 Disability Rts. N.J., Inc. v. Comm’r, N.J. Dep’t of Hum. Servs.,

(3d Cir. 2015);

(d)(2)(iii).

46 illness, and therefore knew that he had a disability under the ADA.

Nevertheless, the Secretary now argues that Williams’ ADA claim fails because he was not placed in solitary confinement “by reason of” his disability but instead because of his death sentence.166 Initially, we note that the DOC forfeited this argument by not raising it before the District Court.167 However, even if the DOC had raised this argument, it would have failed, because it misconstrues Williams’ claim. Williams does not argue that he was placed in solitary confinement “by reason of” his disability. Instead, he argues that, considering his disability, the DOC failed to “take certain pro-active measures to avoid the discrimination proscribed by Title II [of the ADA].”168 We agree.

Our decision in Furgess v. Pennsylvania Department of Corrections169 is instructive. There, we considered whether Furgess, an incarcerated person with a disability, had suffered discrimination “by reason of his disability.”170 Furgess, who had received the accommodation of an accessible shower stall in general population, was placed in the Restrictive Housing Unit (RHU), “which lacked accessible shower facilities.”171 In response to Furgess’ disability discrimination claim, the DOC argued that Furgess was “deprived of a shower because his own

166 Appellee Br. 30 (emphasis omitted). 167 Barna,

(citing United States v. Olano,

(1993). 168 Chisholm v. McManimon,

(3d Cir. 2001). 169

(3d Cir. 2019). 170

. 171

47 misconduct landed him in the RHU, which lacked accessible shower facilities, not because the [DOC] intentionally discriminated against him on the basis of his disability.”172 We disagreed, and determined that the DOC had misconstrued the causation element under the ADA. We explained: “the reason why Furgess was housed in the RHU is irrelevant . . . . [A] prison’s obligation to comply with the ADA . . . does not disappear when inmates are placed in a segregated housing unit, regardless of the reason for which they are housed there.”173

This same reasoning applies to Williams’ claim under the ADA. Although Williams was placed in solitary confinement pursuant to a prison policy, the DOC’s obligation to comply with the ADA did not disappear because of his death sentence. One who violates the ADA (or any other statute) cannot escape liability merely because the violation is a result a state policy that conflicts with federal law. Indeed, a contrary holding would erode the protections afforded by remedial statutes such as the ADA, as the rights they confer would depend on the vagaries of governmental policies. Just as the DOC’s failure to provide accessible showers in the RHU was not by reason of Furgess’ alleged misconduct, the DOC’s failure to provide Williams with reasonable accommodations for his disability was not by reason of his death sentence.

The DOC has an obligation to make “reasonable modifications” to “policies, practices, or procedures” where modifications are necessary to avoid discrimination on the

172

173

48 basis of a disability.174 Assuming that Williams had a known mental illness, the DOC had an obligation to modify its practices to ameliorate the harms of prolonged solitary confinement on Williams. The only way the DOC could avoid this responsibility is by “demonstrat[ing] that making the modifications would fundamentally alter the nature of the service, program, or activity.”175 The record is devoid of evidence that providing Williams with accommodations would have fundamentally altered the DOC’s services, programs, or activities.

Moreover, the DOC’s argument that no ADA violation exists because Williams’ treatment is the same as that of non- disabled death-row prisoners reflects a “lack of appreciation for one of the chief purposes of the ADA.”176 The purpose of the ADA is to ensure that persons with disabilities can participate equally in society.177 Because people with and without disabilities may have different needs, there are instances in which providing equal treatment will not achieve the ADA’s goals of equal opportunity. As Judge McHugh stated in Anderson v. Franklin Institute, “a facially neutral policy can still result in discrimination.”178 “[A] person with a

174

(b)(7)(i). 175

176 Anderson v. Franklin Inst.,

(E.D. Pa. 2016). 177

(a)(7). 178

. That decision explained, “[t]he ADA was promulgated in part to level the playing field for disabled individuals . . . . Stated differently, if disabled persons protected under the ADA were similarly situated to all other

49 disability may be the victim of discrimination precisely because she did not receive disparate treatment when she needed accommodation.”179 And as the Ninth Circuit has recognized, because facially neutral policies may “disparately impact people with disabilities,” “a public entity may be required to make reasonable modifications” to these policies.180

Given the factual dispute as to whether the DOC knew that Williams had a serious mental illness and because the DOC failed to make modifications or accommodations to Williams’ conditions of confinement, Williams’ claim under the ADA survives summary judgment.

persons, there would be no need for the ADA in the first place.”

179 Presta v. Peninsula Corridor Joint Powers Bd.,

(N.D. Cal. 1998) (citation omitted). 180 Payan v. L.A. Cmty. Coll. Dist.,

, 738 (9th Cir. 2021). We are not persuaded by the DOC’s argument that, pursuant to our precedent in Disability Rights,

, Williams must have pointed to evidence that he was “denied some benefit that a public entity has extended to nondisabled people.” Appellee Br. 31. Although in Disability Rights, we held as much, that was in the context of a claim that the appellant had been denied “public services, programs, and activities.”

. In contrast, Williams argues that he was discriminated against because of his disability.

50 2. Compensatory Damages

Compensatory damages, as Williams seeks here, are unavailable “absent proof of ‘intentional discrimination,’”181 which requires at least deliberate indifference.182 To prove deliberate indifference, the (1) “defendant must actually have known or been aware of the excessive risk to [prisoner] safety”183 and (2) failed to act despite that knowledge. 184

The District Court determined that Williams failed to put forth evidence that the DOC acted with deliberate indifference. We disagree. The evidence here is uncontradicted as to the second factor: by neither removing Williams from solitary confinement for twenty-six years, nor making modifications to his conditions of confinement, the DOC failed to act. Assuming that Williams had a preexisting serious mental illness that the DOC was aware of, the only question is whether there is a genuine factual dispute as to whether the DOC actually knew that prolonged solitary confinement caused an “excessive risk” to prisoner safety.185 We have already explained that the record includes evidence that suggests the DOC knew that prolonged solitary confinement causes an excessive risk of harm to prisoners with serious mental illness. For instance, the 2014 DOJ report

181 Haberle,

(quoting S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,

(3d Cir. 2013)). 182 S.H. ex rel. Durrell,

. 183 Beers-Capitol v. Whetzel,

(3d Cir. 2001). 184 Haberle,

(quoting S.H. ex rel. Durell,

). 185 See S.H. ex. Rel. Durrell,

(“The relevant inquiry is knowledge.”).

51 concluded that the DOC was violating the ADA by (1) automatically placing individuals with serious mental illness in solitary confinement without an individualized assessment of their mental health needs and the appropriateness of such placement; and (2) failing to ensure that prisoners with serious mental illness placed in solitary confinement for reasons unrelated to their disabilities could “participate in and benefit from prison activities, programs, and services.”186 That letter also provided the DOC with “narrowly tailored” remedies it could implement to ensure its compliance with obligations under the ADA.187

The DOC’s contention that Williams improperly relied on a “generalized history” of ADA violations is unavailing. Although we have explained that “a generalized history of civil rights violations . . . would not necessarily demonstrate ‘a pattern’”188 of violations sufficient to prove deliberate indifference, the DOJ’s report does far more than provide a “generalized history” of ADA violations. It documents the DOC’s pattern and practice of placing individuals with preexisting mental illness in prolonged solitary confinement, and explains that even where “solitary confinement is necessary,” the DOC fails “to adjust the conditions of solitary confinement to avoid harm to the prisoner.”189 That report—

186 J.A. 081–82. 187 J.A. 083. 188 Haberle,

(quoting Beers-Capitol,

). 189 J.A. 080. This situation is much more akin to that in Haberle v. Borough of Nazareth,

(3d Cir. 2019), in which we found that deliberate indifference had been

52 coupled with the robust body of caselaw and reports on the harms caused to prisoners with preexisting mental illness190— creates a genuine issue of material fact as to whether the DOC was deliberately indifferent in subjecting Williams to prolonged solitary confinement under the circumstances alleged here. Accordingly, we will vacate the District Court’s grant of summary judgment on Williams’ ADA claim and remand for further proceedings. V. Conclusion

For the above reasons, we will affirm the District Court’s order dismissing Williams’ Fourteenth Amendment claim, and we will vacate the District Court’s order granting summary judgment for the Secretary on Williams’ Eighth Amendment and ADA claims and remand for further proceedings consistent with this opinion.

plausibly pled in allegations that a police department was aware of a pattern of police encounters causing harm to people with mental disabilities but failed to adopt an accommodation policy. 936 F.3d at 141–42. 190 See supra Part IV.A.

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JA089 Williams v. Secretary Pennsylvania Department of Corrections, No. 22-2399

PHIPPS, Circuit Judge, dissenting in part.

In denying qualified immunity to the former Secretary of the Pennsylvania Department of Corrections, John Wetzel, with respect to death-row inmate Roy Lee Williams’s claim for cruel and unusual punishment brought under

, the Majority Opinion relies on a new rule of constitutional law: death-sentenced inmates with any known history of mental illness cannot be subjected to prolonged solitary confinement. To arrive at the conclusion that such a constitutional right was clearly established between 2014 and 2019, when Williams was in solitary confinement, so as to defeat qualified immunity here, where Secretary Wetzel relies only on the ‘clearly established’ prong in seeking such immunity, the Majority Opinion ignores this Court’s precedent and misapplies foundational principles. For those reasons, elaborated below, I respectfully dissent.

The lynchpin of the Majority Opinion is its statement that “[u]ndoubtedly, holding a prisoner with a known preexisting serious mental illness in solitary confinement for a protracted period without penological justification would result in unnecessary and wanton infliction of pain.” Maj. Op. at 23 (citation omitted). Using that principle, the Majority Opinion articulates the right at issue as that of “a death row prisoner, with a known preexisting serious mental illness not to be placed and held in prolonged solitary confinement . . . without penological justification.”

at 22–23. The Majority Opinion, however, provides no caselaw clearly establishing such a substantive right, much less its applicability to death- row inmates.

The Majority Opinion relies heavily on Young v. Quinlan,

(3d Cir. 1992), but that case involved confinement in a dry cell as a means of enforcing prison

1 discipline for a general population inmate – not a death- sentenced inmate in a non-dry cell.

. And this Court in Clark v. Coupe,

(3d Cir. 2022), has since emphasized that the articulation of Eighth Amendment rights in the context of solitary confinement is a “heavily fact-specific inquiry.”

. The Clark decision applied that principle even after fully considering Young, by underscoring that “solitary confinement does not per se violate the Constitution ‘as long as the conditions of confinement are not foul, inhuman or totally without penological justification.’”

(quoting Young,

). Thus, in light of the guidance from Clark, the factual differences between Young and this case preclude Young from providing the requisite notice with respect to the Eighth Amendment claim at issue here.

The Majority Opinion’s conclusion regarding the clarity of the right at issue also cannot be reconciled with this Court’s most recent solitary confinement decisions.

In Williams v. Secretary Pennsylvania Department of Corrections,

(3d Cir. 2017), this Court first announced a rule that a prison’s policy of continuing to house death-sentenced inmates whose death sentences had been vacated in solitary confinement was unconstitutional.

. But that rule was newly articulated, and this Court held that qualified immunity applied because that articulation of the right was not clearly established.

. Moreover, the rule announced in Williams was based on procedural due process principles and not the Eighth Amendment.

. Also, that rule applied to only inmates whose death sentences had been vacated, but here, Williams’s sentence remains in effect. The Williams decision therefore does not provide the heavily fact-specific notice needed to clearly establish that Secretary Wetzel violated Williams’s Eighth Amendment rights.

Also in 2017, in Palakovic v. Wetzel,

(3d Cir. 2017), this Court overruled a District Court’s dismissal of an

2 Eighth Amendment claim for an inmate’s solitary confinement. See

at 225–26. The allegations there differ in several key respects from the facts of this case: the inmate was not on death row – he was repeatedly housed in solitary confinement for penal purposes; the inmate was mocked for his mental health issues and abused by staff; and the inmate was denied medical care despite the documented deterioration of his mental health. See

at 216–17, 228. Thus, under the heavily fact-specific inquiry applicable to the ‘clearly established’ prong, Palakovic does not provide the requisite notice to defeat qualified immunity in this case. See

This Court’s decision in Porter v. Pennsylvania Department of Corrections,

(3d Cir. 2020), similarly does not provide the notice required to defeat qualified immunity. That case expressed a new rule applicable to death row inmates that “prolonged solitary confinement satisfies the objective prong of the Eighth Amendment test and may give rise to an Eighth Amendment claim, particularly where . . . [d]efendants have failed to provide any meaningful penological justification.”

. Because that articulation of the right had not previously been clearly established, this Court held that the defendants in that case were entitled to qualified immunity. See

And even if Porter were factually similar enough to provide the requisite notice, it could not do so here because it was decided in 2020, after Williams’s period of solitary confinement ended.

Finally, in 2022, in Clark v. Coupe, this Court articulated an Eighth Amendment right with respect to solitary confinement with several qualifiers. But Clark, like Young and Palakovic, was not a case involving a death-sentenced inmate. And as recently as the Porter decision in 2020, this Court emphasized the significance of status on death row for purposes of assessing the constitutionality of solitary confinement:

3 Cases that challenge interpretation of death row policy and conditions on death row are distinct from cases brought by inmates in general population subject to solitary confinement.

Porter,

; cf.

at 461–62 (Porter, J., concurring in part and dissenting in part) (“Our Court has not held that the conditions of confinement on Pennsylvania’s death row are unconstitutional, and we have a long train of decisions to the contrary.”). Thus, even if the formulation of the right by the Majority Opinion were correct as to the general prison population, that would not be enough to provide adequate notice: there would still have to be additional precedent applying that formulation of the right to death-row inmates. And the Majority Opinion identifies no such case.

Under that tapestry of precedent, the right as articulated by the Majority Opinion was not clearly established between 2014 and 2019 when Williams was in solitary confinement.

Lacking precedent from the relevant time period for the proposition that it is unconstitutional to place death-row inmates with any history of serious mental illness in solitary confinement, the Majority Opinion makes a grievous error offensive to basic principles of separation of powers: it substitutes a 2014 findings letter from the United States Department of Justice for binding precedent. See Letter from Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division of the United States Department of Justice, & David J. Hickton, United States Attorney for the Western District of Pennsylvania, to the Honorable Tom Corbett, Governor of the Commonwealth of Pennsylvania (Feb. 24, 2014) (JA62–89) (hereinafter the ‘2014 Letter’). But the Judiciary, not the Executive Branch, has the authority to announce binding interpretations of the Constitution. See Marbury v. Madison,

(1803); see also Loper Bright Enters. v. Raimondo,

, 2257 (2024) (“To ensure the ‘steady, upright and impartial

4 administration of the laws,’ the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches.” (quoting The Federalist No. 78, at 522) (Alexander Hamilton) (J. Cooke ed., 1961)). And qualified immunity, which depends on fair notice at the time of the alleged violation of a federal right, 1 looks to judicial opinions – not letters from federal agencies – as the sources for such notice. See Porter,

. So, treating constitutional interpretations of a federal agency as having the force of judicial precedent is plainly incorrect. See Loper Bright, 144 S. Ct. at 2257 (“The Framers also envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts.’” (quoting The Federalist No. 78, at 525)). Thus, a letter from a federal agency cannot satisfy the ‘clearly established’ standard for qualified immunity. And if the 2014 Letter – which addressed solitary confinement of both general population and death-sentenced inmates – did provide adequate notice of a clearly established constitutional right, then why has no subsequent decision of this Court – Williams, Palakovic, Porter, or Clark – relied on the 2014 Letter for that purpose? The answer is simple: a letter from an Executive Branch agency does not suffice for notice under the ‘clearly established’ prong of qualified immunity.

1 See Rivas-Villegas v. Cortesluna,

(2021) (explaining a government official has ‘fair notice’ if at the time of the alleged constitutional violation it was ‘beyond debate’ such that “every reasonable official would have understood that what he is doing violates that right” (quoting see also Mullenix v. Luna,

(2015) (per curiam))); Burns v. Pennsylvania Dep’t of Corr.,

(3d Cir. 2011) (“Because qualified immunity is intended to protect officials absent ‘fair warning’ that their conduct violates constitutional guarantees, we examine qualified immunity from the perspective of the official at the time of the violation.”).

5 By contravening that principle and doing what those prior cases did not, the Majority Opinion makes a big mistake.

The Majority Opinion attempts to legitimatize its reliance on the 2014 Letter by noting that the Supreme Court in Hope v. Pelzer,

(2002), relied on a report from the United States Department of Justice. But the Supreme Court used that report – not as a substitute for precedent – but rather as evidence for the proposition that the conduct at issue there (tying a shirtless prisoner to a hitching post in the Alabama sun for seven hours without bathroom breaks and with only one or two offers of water) was obviously a violation of the Eighth Amendment. See

at 734–35. Here, however, the Majority Opinion does not use the 2014 Letter for that purpose. Instead, it uses the 2014 Letter to set a date certain on which a constitutional right was clearly established – the date of the 2014 Letter.

That is impermissible under Hope. Although the modern Eighth Amendment jurisprudence uses an evolving-standard- of-decency analysis, see United States v. Grant,

, 201–07 (3d Cir. 2021) (en banc) (Hardiman, J., concurring) (recounting with skepticism the development of that strand of Eighth Amendment jurisprudence because it “strayed far from the text and original meaning of the Eighth Amendment”), the Hope exception for obvious constitutional violations applies only to conduct that has always been obviously cruel and unusual. See Hope, 536 U.S. at 741–42; see also Taylor v. Riojas,

, 8–9 (2020) (per curiam) (holding “any reasonable officer should have realized” that it was unconstitutional to confine an inmate for six days in two cells – one, which “was covered, nearly floor to ceiling in massive amounts of feces,” and another, which was “frigidly cold” and required the inmate to sleep naked on a sewage-covered floor (quotation omitted)); Camreta v. Greene,

(2011) (Kennedy, J., dissenting) (“That rule permits clearly established violations to be found when extreme though unheard-of actions violate the Constitution.”).

6 For conduct that becomes viewed as cruel and unusual by virtue of evolving standards of decency, Hope does not apply; rather, case law provides the notice of the updated reach of the Eighth Amendment, as it typically does for qualified immunity. See Ashcroft v. al-Kidd,

, 741 (2011) (explaining that case law must provide notice such that it places the constitutional violation “beyond debate”); Montemuro v. Jim Thorpe Area Sch. Dist.,

(3d Cir. 2024) (“A right is clearly established if the case law at the time of the alleged violation of the right would have put government officials on fair notice that their conduct violated the plaintiff’s rights.” (emphasis added)). Any other approach would impermissibly deny qualified immunity to § 1983 defendants without first providing them with notice of the evolved nature of the Eighth Amendment’s protections. See Ziglar v. Abbasi,

, 150–51 (2017) (explaining “[t]he doctrine of qualified immunity gives officials ‘breathing room to make reasonable but mistaken judgments about open legal questions.’” (quoting Al–Kidd,

)).

In short, because it does not rely on the 2014 Letter as evidence that placing a death-row inmate with a history of mental illness in solitary confinement has always constituted cruel and unusual punishment, the Majority Opinion misuses the 2014 Letter in its efforts to defeat qualified immunity.

***

For these reasons, I respectfully dissent from the denial of qualified immunity, and I would affirm the judgment of the District Court in all respects. 2

2 I also would affirm the judgment against Williams’s claim under Title II of the Americans with Disabilities Act because Williams has conceded that he is entitled to only compensatory damages for his Title II claim and despite having the opportunity to do so through supplemental briefing, Williams

7 has not produced evidence of a physical injury in connection with his exclusion from a service, program, or activity, yet the Prison Litigation Reform Act bars statutory claims that are not accompanied by such a physical injury, see 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).”); see also Mitchell v. Horn,

(3d Cir. 2003) (holding that 42 U.S.C. § 1997e(e) requires a “less-than- significant-but-more-than-de minimis physical injury”); but cf. Allah v. Al-Hafeez,

, 252 n.5 (3d Cir. 2000) (explaining, in the context of an alleged violation of a constitutional right (but not a statutory right), that the PLRA’s physical injury requirement may not bar claims for nominal and punitive damages). Although the Majority Opinion does not affirm the District Court’s rejection of Williams’s Title II claim on that alternative ground, as it could, see TD Bank N.A. v. Hill,

(3d Cir. 2019), nothing about the opinion precludes the District Court from rejecting Williams’s Title II claim on that basis on remand.

8