Create an Alert for This Case on RECAP

CLOSED,CONMAG

U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:17-cv-00763-MPK

PORTER v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al Assigned to: Magistrate Judge Maureen P. Kelly
Case in other court: Third Circuit, 18-03505
Cause: 42:1983pr Prisoner Civil Rights

Date Filed: 06/12/2017 Date Terminated: 11/08/2018 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff

ERNEST PORTER

represented by Bret Grote Abolitionist Law Center PO Box 8654 Pittsburgh, PA 15221 412-654-9070 Email: bretgrote@abolitionistlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamelia N. Morgan Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 650-387-8582 Email: jamelia@alcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
PENNSYLVANIA DEPARTMENT OF CORRECTIONS

represented by Scott A. Bradley Office of the Attorney General Litigation Section 1251 Waterfront Place Mezzanine Level Pittsburgh, PA 15222 (412) 565-3586 Email: sbradley@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant JOHN E. WETZEL Secretary for Department of Correctons
Defendant ROBERT GILMORE Super. for SCI Greene
Defendant JOHN/JANE DOE'S TERMINATED: 10/13/2017

represented by Scott A. Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/12/2017
06/14/2017
06/14/2017 06/29/2017 06/29/2017 06/29/2017 06/29/2017 07/05/2017

#

Docket Text

1 MOTION for Leave to Proceed in forma pauperis by ERNEST PORTER. (Attachments: # 1 Complaint, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Envelope) (jv) (Entered: 06/12/2017)

2 DEFICIENCY ORDER. Clerk is to mark CASE CLOSED. Signed by Chief Magistrate Judge Maureen P. Kelly on 06/14/17. A copy of this Order and the necessary blank forms will be mailed to Plaintiff this day, 06/14/17. (eca) (Entered: 06/14/2017)

3 CONSENT to Trial/Jurisdiction by US Magistrate Judge OR District Judge Option, by ERNEST PORTER. (Attachments: # 1 Envelope) (jv) (Entered: 06/14/2017)

4 MOTION for Leave to Proceed in forma pauperis by ERNEST PORTER. (Attachments: # 1 Exhibit, # 2 Envelope) (jv) (Entered: 06/29/2017)

5 Authorization permitting withdrawal of prison account funds to pay filing fee by ERNEST PORTER. (Attachments: # 1 Envelope) (jv) (Entered: 06/29/2017)

6 MOTION for Preliminary Injunction by ERNEST PORTER. (Attachments: # 1 Envelope) (jv) (Entered: 06/29/2017)

7 BRIEF in Support re 6 Motion for Preliminary Injunction filed by ERNEST PORTER. (Attachments: # 1 Envelope) (jv) (Entered: 06/29/2017)

8 ORDER GRANTING 4 Motion for Leave to Proceed in forma pauperis. The Clerk of Court is directed to file the complaint. Signed by Chief Magistrate Judge Maureen P. Kelly on 07/05/17. A copy of this Order will be mailed to Plaintiff and Inmate Accounting this day,

07/05/2017 07/06/2017
07/10/2017 07/12/2017
08/08/2017 08/08/2017 08/08/2017 08/08/2017
08/08/2017

07/05/17. (eca) (Entered: 07/05/2017)
9 COMPLAINT against JOHN/JANE DOE'S, ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL, filed by ERNEST PORTER. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Envelope) (jv) (Entered: 07/06/2017)
10 SERVICE ORDER. The United States Marshal shall serve a copy of the complaint, notice and request for waiver of service of summons, waiver of service of summons, and this Order to each defendant, as directed by plaintiff. Costs of service shall be borne by the United States. Signed by Chief Magistrate Judge Maureen P. Kelly on 07/06/17. A copy of this Order will be mailed to Plaintiff this day, 07/06/17. Service copies will be forwarded to U S Marshal this day, 07/06/17. (eca) (Entered: 07/06/2017)
11 US Marshal's Return as to Robert Gilmore that an Order, Complaint, Notice and Waiver were mailed per court order on 7/1/2017 by U.S Marshal service. (jv) (Entered: 07/10/2017)
12 ORDER denying 6 Motion for Preliminary Injunction without prejudice to re-file following service of all Defendants. Furthermore, notice is given that following service of all Defendants, the Court will schedule a video conference with Plaintiff and counsel for Defendants to address the issues raised in the Complaint and the Motion for Preliminary Injunction. Signed by Chief Magistrate Judge Maureen P. Kelly on 7/12/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. [A copy of this Text Order was mailed to Plaintiff on this date at his address of record]. (bb) (Entered: 07/12/2017)
13 MOTION for Preliminary Injunction by ERNEST PORTER. (Attachments: # 1 Envelope) (jv) (Entered: 08/08/2017)
14 BRIEF in Support re 13 Motion for Preliminary Injunction filed by ERNEST PORTER. (Attachments: # 1 Envelope) (jv) (Entered: 08/08/2017)
15 NOTICE of Appearance by Scott A. Bradley on behalf of ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Bradley, Scott) (Entered: 08/08/2017)
16 WAIVER OF SERVICE Returned Executed by ROBERT GILMORE, JOHN E. WETZEL, PENNSYLVANIA DEPARTMENT OF CORRECTIONS. ROBERT GILMORE waiver sent on 7/10/2017, answer due 9/8/2017; JOHN E. WETZEL waiver sent on 7/10/2017, answer due 9/8/2017; PENNSYLVANIA DEPARTMENT OF CORRECTIONS waiver sent on 7/10/2017, answer due 9/8/2017. (Bradley, Scott) (Entered: 08/08/2017)
17 CONSENT to Trial/Jurisdiction by US Magistrate Judge OR District

08/10/2017 08/22/2017
08/22/2017 09/05/2017 09/08/2017
09/08/2017 09/12/2017 09/15/2017

Judge Option, by ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Bradley, Scott) (Entered: 08/08/2017)
18 ORDER OF COURT. Plaintiff is directed to file a supplement of additional information re: John/Jane Does no later than 08/31/17. Failure to provide this information to the fullest extent possible may result in the dismissal of John/Jane Does. Signed by Chief Magistrate Judge Maureen P. Kelly on 08/10/17. A copy of this Order will be mailed to Plaintiff this day, 08/10/17. (eca) (Entered: 08/10/2017)
19 ORDER directing Defendants to respond to Plaintiff's Motion for Preliminary Injunction, ECF No. 13 , by September 5, 2017. A copy of this order will be mailed to Plaintiff at his address of record. Signed by Magistrate Judge Maureen P. Kelly on 8/22/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (Kelly, Maureen) (Entered: 08/22/2017)
20 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.00, receipt number 24668045667. (kly) (Entered: 08/24/2017)
21 RESPONSE to Motion re 13 MOTION for Preliminary Injunction filed by ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Attachments: # 1 Exhibit Nos. 1-6) (Bradley, Scott) (Entered: 09/05/2017)
22 ORDER TO SHOW CAUSE. Plaintiff is Ordered to show cause why Defendants John/Jane Does should not be dismissed for his failure to file a supplement of additional information as So Ordered on 08/10/17. ECF No. 18. Plaintiff's Show Cause Response due no later than 09/29/17. Failure to show cause by 09/29/17 will result in the dismissal of the Doe Defendants. Signed by Chief Magistrate Judge Maureen P. Kelly on 09/08/17. A copy of this Order will be mailed to Plaintiff this day, 09/08/17. Text-only entry; no PDF document will issue. This textonly entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 09/08/2017)
23 ANSWER to 9 Complaint, by ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Bradley, Scott) (Entered: 09/08/2017)
24 CASE MANAGEMENT ORDER. Discovery due by 12/12/2017. Plaintiff Pretrial Statement due by 1/12/2018. Defendant Pretrial Statement or Summary Judgment due by 2/12/2018. Signed by Chief Magistrate Judge Maureen P. Kelly on 09/12/17. A copy of this Order will be mailed to Plaintiff this day, 09/12/17. (eca) (Entered: 09/12/2017)
25 MEMORANDUM ORDER denying 13 Motion for Preliminary Injunction. Signed by Chief Magistrate Judge Maureen P. Kelly on 9/15/17. [A copy of this Memorandum Order was mailed to Plaintiff on this date at his address od record]. (bb) (Entered: 09/15/2017)

09/18/2017
09/20/2017
09/21/2017 09/22/2017 09/25/2017 09/25/2017 10/13/2017 10/23/2017 11/22/2017 12/07/2017 12/08/2017
12/15/2017

26 MOTION to Extend Time to to obtain legal counsel and file a reply brief opposing "Corrections" 21 RESPONSE to Motion re 13 MOTION for Preliminary Injunction filed by ERNEST PORTER. (Attachments: # 1 Supplement, # 2 Envelope) (jv) (Entered: 09/18/2017)
27 ORDER DENYING AS MOOT 26 Motion to Extend Time to File a Reply to 21 Defendant's Response to 13 Plaintiff's Motion for Preliminary Injunction as Plaintiff's Motion for Preliminary Injunction
has already been ruled upon. See ECF No. 25 . Signed by Chief Magistrate Judge Maureen P. Kelly on 9/20/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. [A copy of this Text Order was mailed to Plaintiff on this date at his address of record]. (bb) Modified on 9/21/2017. (eca) (Entered: 09/20/2017)
29 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.44, receipt number 24668046156. (kly) (Entered: 09/22/2017)
28 NOTICE of Appearance by Bret Grote on behalf of ERNEST PORTER. (Grote, Bret) (Entered: 09/22/2017)
30 MOTION for attorney Jamelia Morgan to Appear Pro Hac Vice, (Filing fee $70, Receipt # 0315-4473194) by ERNEST PORTER. (Attachments: # 1 Exhibit, # 2 Proposed Order) (Grote, Bret) (Entered: 09/25/2017)
31 ORDER GRANTING 30 Motion for Jamelia N. Morgan to Appear Pro Hac Vice. Signed by Chief Magistrate Judge Maureen P. Kelly on 09/25/17. (eca) (Entered: 09/26/2017)
32 ORDER OF COURT. Plaintiff having failed to respond to Orders of Court as outlined herein, Defendant JOHN/JANE DOE'S is DISMISSED. Signed by Chief Magistrate Judge Maureen P. Kelly on 10/13/17. (eca) (Entered: 10/13/2017)
33 Partial Payment of Filing Fee by ERNEST PORTER. Fee $16.58, receipt number 24668046652. (kly) (Entered: 10/25/2017)
34 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.30, receipt number 24668047199. (kly) (Entered: 11/27/2017)
35 MOTION for Extension of Time to Complete Discovery by ERNEST PORTER. (Attachments: # 1 Proposed Order) (Morgan, Jamelia) (Entered: 12/07/2017)
36 ORDER GRANTING 35 Motion for Extension of Time to Complete Discovery. Discovery due by 3/2/2018. Post-Discovery Status Conference set for 3/6/2018 at 9:00 AM before Chief Magistrate Judge Maureen P. Kelly. Signed by Chief Magistrate Judge Maureen P. Kelly on 12/08/17. (eca) (Entered: 12/08/2017)
37 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.51, receipt number 24668047559. (jmt) (Entered: 12/19/2017)

01/18/2018 02/13/2018 03/06/2018 03/06/2018
03/06/2018
03/21/2018 04/20/2018 05/22/2018 06/05/2018 06/05/2018
06/19/2018 06/19/2018
06/20/2018

38 Partial Payment of Filing Fee by ERNEST PORTER. Fee $20.37, receipt number 24668048046. (gmp) (Entered: 01/18/2018)
39 Partial Payment of Filing Fee by ERNEST PORTER. Fee $16.44, receipt number 24668048477. (jmt) (Entered: 02/15/2018)
40 Minute Entry for proceedings held before Chief Magistrate Judge Maureen P. Kelly: Post-Discovery Status Conference held on 3/6/2018. (Court Reporter: None) (eca) (Entered: 03/06/2018)
41 EXPERT DISCOVERY SCHEDULING ORDER. Plaintiff Expert Reports due by 4/6/2018; Defendants' Expert Reports due by 5/7/2018; Expert Depositions to be completed by 6/1/2018. Telephone Status Conference set for 6/5/2018 at 8:45 AM before Chief Magistrate Judge Maureen P. Kelly. Signed by Chief Magistrate Judge Maureen P. Kelly on 03/06/18. (eca) (Entered: 03/06/2018)
42 ORDER REFERRING CASE to Mediation. Kenneth Benson is appointed as mediator. Mediation to be concluded by 06/01/18. Signed by Chief Magistrate Judge Maureen P. Kelly on 03/06/18. (eca) (Entered: 03/06/2018)
43 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.51, receipt number 24668049097. (kly) (Entered: 03/22/2018)
44 Partial Payment of Filing Fee by ERNEST PORTER. Fee $16.22, receipt number 24668049591. (kly) (Entered: 04/23/2018)
45 Partial Payment of Filing Fee by ERNEST PORTER. Fee $16.51, receipt number 24668050084. (kly) (Entered: 05/24/2018)
46 Minute Entry for proceedings held before Chief Magistrate Judge Maureen P. Kelly: Telephone Status Conference held on 6/5/2018. (Court Reporter: None) (eca) (Entered: 06/05/2018)
47 SUMMARY JUDGMENT SCHEDULING ORDER. Summary Judgment due by 7/9/2018; Response to Summary Judgment due by 8/10/2018; Reply brief due by 8/17/2018. Joint Stipulation of Undisputed Facts due by 7/9/2018. Signed by Chief Magistrate Judge Maureen P. Kelly on 06/05/18. (eca) (Entered: 06/05/2018)
48 Joint MOTION to Extend Time to 9/5/2018 by ERNEST PORTER. (Attachments: # 1 Proposed Order) (Morgan, Jamelia) (Entered: 06/19/2018)
49 Notice of Initial ADR Conference by ERNEST PORTER. Initial ADR Conference Date September 5, 2018 at 10 AM at The Office of the Attorney General, 1251 Waterfront Place, Mezzanine Level, Pittsburgh, PA 15222 (Morgan, Jamelia) (Entered: 06/19/2018)
50 ORDER granting 48 Joint Motion to Extend Time to Complete ADR. The deadline is extended to 9/6/18. Signed by Magistrate Judge Maureen P. Kelly on 6/20/18. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (Kelly, Maureen) (Entered: 06/20/2018)

06/21/2018 07/09/2018 07/09/2018 07/09/2018 07/09/2018 07/09/2018 07/10/2018
07/18/2018 07/31/2018
08/03/2018 08/10/2018 08/13/2018 08/16/2018

51 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.51, receipt number 24668050597. (nll) (Entered: 06/22/2018)
52 MOTION for Summary Judgment by ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Attachments: # 1 Proposed Order) (Bradley, Scott) (Entered: 07/09/2018)
53 BRIEF in Support re 52 Motion for Summary Judgment filed by ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Bradley, Scott) (Entered: 07/09/2018)
54 MOTION for Summary Judgment by ERNEST PORTER. (Attachments: # 1 Proposed Order) (Grote, Bret) (Entered: 07/09/2018)
55 Joint CONCISE STATEMENT OF MATERIAL FACTS by ERNEST
PORTER. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Grote, Bret) (Entered: 07/09/2018)
56 BRIEF in Support re 54 Motion for Summary Judgment filed by ERNEST PORTER. (Grote, Bret) (Entered: 07/09/2018)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 53 Brief in Support of Motion. ERROR: Incorrect title on document attached. CORRECTION: Attorney advised to refile the document, using the *ERRATA* event (Located under "Other Document in the electronic filing system) and attach the correct document. Attorney also advised to link ERRATA event to 53 Brief in Support of Motion. This message is for informational purposes only. (jv) (Entered: 07/10/2018)
57 Partial Payment of Filing Fee by ERNEST PORTER. Fee $41.58, receipt number 24668051002. (kly) (Entered: 07/20/2018)
58 REPORT of Mediation: Case has not been resolved. KENNETH BENSON terminated. Attorney Kenneth J. Benson terminated. The parties are reminded of their obligation to complete the ADR questionnaire and submit within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 7/27/2018. (Benson, Kenneth) (Entered: 07/31/2018)
59 RESPONSE to Motion re 54 MOTION for Summary Judgment filed by ROBERT GILMORE, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL. (Bradley, Scott) (Entered: 08/03/2018)
60 BRIEF in Opposition re 52 Motion for Summary Judgment filed by ERNEST PORTER. (Morgan, Jamelia) (Entered: 08/10/2018)
61 Partial Payment of Filing Fee by ERNEST PORTER. Fee $14.51, receipt number 24668051484. (caa) (Entered: 08/14/2018)
62 BRIEF in Support re 54 Motion for Summary Judgment filed by ERNEST PORTER. (Morgan, Jamelia) (Entered: 08/16/2018)

09/04/2018
09/19/2018 09/19/2018 09/19/2018 09/20/2018 10/25/2018 11/08/2018 11/08/2018 11/09/2018
11/14/2018 11/23/2018 12/20/2018 01/18/2019

63 ORDER OF COURT. A Status Conference will be held 9/20/2018 at 8:30 AM before Chief Magistrate Judge Maureen P. Kelly. Signed by Chief Magistrate Judge Maureen P. Kelly on 09/04/18. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 09/04/2018)
64 MOTION for Co-Counsel to Participate via Telephone by ERNEST PORTER. (Morgan, Jamelia) (Entered: 09/19/2018)
65 ORDER GRANTING 64 Motion for Co-Counsel to Participate via Telephone. Signed by Chief Magistrate Judge Maureen P. Kelly on 09/19/18. (eca) (Entered: 09/19/2018)
67 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.51, receipt number 24668052069. (av) (Entered: 09/26/2018)
66 Minute Entry for proceedings held before Chief Magistrate Judge Maureen P. Kelly: Status Conference held on 9/20/2018. (Court Reporter: None) (eca) (Entered: 09/20/2018)
68 Partial Payment of Filing Fee by ERNEST PORTER. Fee $16.66, receipt number 24668052708. (kly) (Entered: 11/08/2018)
69 OPINION AND ORDER granting 52 Motion for Summary Judgment; denying 54 Motion for Summary Judgment. Signed by Magistrate Judge Maureen P. Kelly on 11/8/2018. (ndf) (Entered: 11/08/2018)
70 JUDGMENT pursuant to Rule 58 entered in favor of Defendants Pennsylvania Department of Corrections, John E. Wetzel, and Robert Gilmore, and against Plaintiff Ernest Porter Signed by Magistrate Judge Maureen P. Kelly on 11/8/2018. (ndf) (Entered: 11/08/2018)
71 NOTICE OF APPEAL as to 69 Order on Motion for Summary Judgment, 70 JUDGMENT pursuant to Rule 58 entered in favor of Defendants by ERNEST PORTER. Filing fee $505, receipt number 0315-4929288. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Grote, Bret) (Entered: 11/09/2018)
72 USCA Case Number 18-3505 for 71 Notice of Appeal,, filed by ERNEST PORTER. USCA Case Manager Marianne (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF) (mb3) (Entered: 11/14/2018)
73 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.37, receipt number 24668053234. (av) (Entered: 11/28/2018)
74 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.58, receipt number 24668053730. (kly) (Entered: 12/26/2018)
75 Partial Payment of Filing Fee by ERNEST PORTER. Fee $26.37, receipt number 24668054261. (gmt) (Entered: 02/01/2019)

02/15/2019 03/28/2019 04/18/2019 05/22/2019 06/19/2019 09/01/2020
11/05/2020
11/05/2020

76 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.44, receipt number 24668054767. (gmt) (Entered: 02/22/2019)
77 Partial Payment of Filing Fee by ERNEST PORTER. Fee $17.00, receipt number 24668055344. (gmt) (Entered: 03/28/2019)
78 Partial Payment of Filing Fee by ERNEST PORTER. Fee $11.28, receipt number 24668055851. (gmt) (Entered: 05/14/2019)
79 Partial Payment of Filing Fee by ERNEST PORTER. Fee $14.39, receipt number 24668056417. (gmt) (Entered: 06/05/2019)
80 Partial Payment of Filing Fee by ERNEST PORTER. Fee $7.92, receipt number 24668056877. (gmt) (Entered: 07/03/2019)
81 JUDGMENT OF USCA as to 71 Notice of Appeal,, filed by ERNEST PORTER affirmed in part, reversed and remanded in part judgment of the district court dated November 8, 2018. Mandate will follow. (mb3) (Entered: 09/01/2020)
82 MANDATE of USCA as to 71 Notice of Appeal, filed by ERNEST PORTER Affirmed in part and reversed and remanded. (Attachments: # 1 Opinion) (mb3) (Entered: 11/05/2020)
83 ORDER: Status Conference set for 11/23/2020 at 01:30 PM by Video before Magistrate Judge Maureen P. Kelly. Counsel for the parties will receive ZoomGov information by email at a later date. Signed by Magistrate Judge Maureen P. Kelly on 11/5/2020. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (et) (Entered: 11/05/2020)

PACER Service Center

Transaction Receipt

11/14/2020 22:04:15

PACER Login:

CRClearinghouse

Client Code:

Yu

Description: Docket Report

Search 2:17-cvCriteria: 00763-MPK

Billable Pages:

7

Cost:

0.70

Exempt flag: Not Exempt

Exempt reason:

Not Exempt

 
 Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 1 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 2 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 3 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 4 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 5 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 6 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 7 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 8 of 9

Case 2:17-cv-00763-MPK Document 9 Filed 07/05/17 Page 9 of 9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERNEST PORTER,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL, ROBERT GILMORE, and JOHN/JANE DOES,
Defendants.

)

)

)

Civil Action No. 17-763

)

Chief Magistrate Judge Maureen P. Kelly

)

)

)

)

)

)

Re: ECF No. 13

)

)

MEMORANDUM ORDER

Plaintiff Ernest Porter (“Plaintiff”), an inmate at the State Correctional Institution at

Greene (ASCI-Greene@), has presented a civil rights complaint, which he has been granted leave

to prosecute without prepayment of costs, alleging that Defendants have violated his rights

provided by the Eighth and Fourteenth Amendments to the United States Constitution by

continuing to confine him in the Capital Case Unit (“CCU”) even though his sentence of death has been vacated.1

Presently before this Court is a Motion for Preliminary Injunction submitted by Plaintiff,

ECF No. 13, wherein Plaintiff largely reiterates the claims set forth in his Complaint, arguing

that “for more than 13-years since Plaintiff’s Death Sentence had been Vacated the Respondents

have kept Plaintiff Illegally Confined under Punitive solitary Confinement at the State

Correctional of Greene County, Pennsylvania, and have acted with deliberate indifference to a

substantial risk of serious harm.” ECF No. 13 ¶ 1. Plaintiff’s Motion, as well as his Complaint,

1 Plaintiff was convicted of Murder in the First Degree on June 27, 1986 in the Court of Common Pleas of Philadelphia County, Pennsylvania, and subsequently sentenced to death. ECF No. 21-1 at 4-5 (Criminal Docket for Case No. CP-51-CR-0622491-1985). His conviction and sentence were subsequently affirmed by the Supreme Court of Pennsylvania in an Opinion dated February 8, 1990. Commonwealth v. Porter, 569 A.2d 942 (Pa. 1990).

is based upon the recent decision by United States Court of Appeals for the Third Circuit in Williams v. Sect’y of the Pa. Dept. of Corr., 848 F.3d 549 (3d Cir. 2017), wherein the Court held that “the Due Process Clause of the Fourteenth Amendment . . . limits the State's ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.” Id. at 552. Plaintiff contends that because his death sentence has been vacated, his continued confinement in the CCU runs afoul of Williams necessitating his immediate placement in the general population.
A preliminary injunction is an extraordinary and drastic remedy that "should not be lightly indulged in, but used sparingly and only in a clear and plain case." Emile v. SCIPittsburgh, No. 04-974, 2006 WL 2773261, at *6 (W.D. Pa. Sept. 24, 2006), quoting Plain Dealer Publ'g Co. v. Cleveland Typographical Union #53, 520 F.2d 1220, 1230 (6th Cir. 1975). See AT&T v. Winback and Conserve Prog. Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). "[G]reat caution" and "judicial restraint" are particularly called for in the prison context where "complex and intractable problems of prison administration" are implicated. Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). See Bailey v. Gagnon, No. 06-1154, 2009 WL 982694, at *1 (W.D. Pa. April 9, 2009).
In determining whether a preliminary injunction is warranted, the District Court is to consider “(1) whether the movant has a reasonable probability of success on the merits; (2) whether irreparable harm would result if the relief sought is not granted; (3) whether the relief would result in greater harm to the non-moving party, and (4) whether the relief is in the public interest.” Monroe v. Bryan, No. 12-1627, 2012 WL 2478375, at *1 (3d Cir. June 29, 2012), quoting Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002). See Abu-Jamal v. Price, 154 F.3d 128, 133 (3d Cir. 1998) (for an inmate to sustain his burden of proof that he is entitled
2

to a preliminary injunction, he must demonstrate both a reasonable likelihood of success on the merits and that he will be irreparably harmed if the requested relief is not granted). "[I]t is the movant's burden to show that the 'preliminary injunction must be the only way of protecting the plaintiff from harm.'" Emile v. SCI-Pittsburgh, 2006 WL 2773261, at *6, quoting Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992). Indeed, because "[t]he purpose of a preliminary injunction is to preserve the status quo, not to decide the issues on their merits[,] Anderson v. Davila, 125 F.3d 148, 156 (3d Cir. 1997), irreparable harm is established by showing that the plaintiff will suffer injury that "cannot be redressed by a legal or an equitable remedy following trial." Messner v. Bunner, No. 07-112E, 2009 WL 1406986, at *4 (W.D. Pa. May 19, 2009), quoting Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989).
Here, it is apparent from the record before the Court that Plaintiff is unable to show a likelihood of success on the merits and therefore his Motion will be denied.
The record shows that Plaintiff filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania on or about May 25, 1999, which was granted in part and denied in part on June 26, 2003. ECF No. 21-1 at 13-27: #1, #109 (Civil Docket for Case No. 2:99-cv-02677). See Porter v. Horn, 276 F. Supp. 2d 278, 364-65 (E.D. Pa. 2003). Specifically, the Court granted relief with respect to Plaintiff’s sentence of death, which was concomitantly vacated, and denied the petition in all other respects. Id. The Order also stated, however, that “if either Petitioner or Respondents file an appeal to the United States Court of Appeals for the Third Circuit, the entry of this Order will be stayed pursuant to Eastern District of Pennsylvania Local Rule 9.4(12) pending the disposition of that appeal.” Id. Not only did Respondents appeal the granting of habeas relief relative to Plaintiff’s sentence to the
3

Third Circuit Court of Appeals but Plaintiff appealed the portion of the Order denying relief on
the other issues raised in his habeas petition. ECF No. 21-1 at 26: #112, #114; ECF No. 21-1 at
28-37 (General Docket for Case No. 03-9006 (3d Cir.); ECF No. 21-1 at 38-47 (General Docket
for Case No. 03-9007 (3d Cir.)). Consequently, the Order vacating Plaintiff’s death sentence
was stayed pending the outcome of those appeals. The record shows that those appeals are still
pending and thus the Order vacating Plaintiff’s death sentence remains stayed. Id.2 Plaintiff’s
death sentence therefore is still operative and his continued confinement in the CCU does not
violate Williams. Under these circumstances, Plaintiff is unable to show that he is likely to
succeed on the merits of his claim and injunctive relief is not warranted.
2 It appears that The Court of Appeals for the Third Circuit entered an order on February 12, 2004, staying the briefing schedules on the parties’ respective appeals pending a decision by the United States Supreme Court in Banks v. Horn, No. 02-1603. ECF No. 21-1 at 32, 42. Although the stay was lifted on September 8, 2004 following the Supreme Court’s decision in Banks, Plaintiff subsequently filed two motions on October 22, 2004 and October 27, 2004, respectively, asking that the briefing schedules be temporarily tolled pending the disposition of two other cases then pending in the United States Supreme Court. Id. Plaintiff subsequently withdrew one of those requests and, following the Supreme Court’s decision in the second case, the briefing schedules on Plaintiff’s cases were reinstated. Id. at 33, 42-43. Plaintiff, however, filed four motions seeking an extension of time of 60 days each to file his brief and appendix, which were all granted. Id. Then, on November 9, 2006, Plaintiff filed a Motion asking to hold the appellate proceedings in abeyance pending the Pennsylvania Supreme Court’s disposition of Plaintiff’s Petition for State Post-Conviction Relief filed on August 16, 2002, wherein he raised a claim under Atkins v. Virginia, 536 U.S.304 (2002). Id. at 33, 43. That motion was granted by the Third Circuit Court of Appeals on February 7, 2007, with the added directive that the parties were to file status reports regarding the PCRA proceedings every 60 days until the conclusion of the state proceedings. Id. at 34, 43-44. Review of the appellate docket sheets show that the latest status report was filed on August 16, 2017, in which it is indicated that Plaintiff’s PCRA Petition with respect to the Atkins issue has yet to be ruled on. Id. at 37, 47. See id. at 48-50 (8/16/17 Status Report). (It should be noted here that Plaintiff supplemented his PCRA Petition on June 15, 2006, raising a claim under Brady v. Maryland, 373 U.S. 83 (1963). Although the PCRA court issued a ruling dismissing the PCRA Petition on November 8, 2007, it did so finding that it was time-barred and did not meet the requirement of Brady material. Com. v. Porter, 35 A.3d 4, 7–11 (Pa. 2012). The PCRA court did not address the Atkins issue and that portion of the PCRA Petition remains pending. Indeed, in its opinion affirming the denial of post-conviction relief, the Pennsylvania Supreme Court directed the PCRA court “to promptly dispose of appellant’s long-pending prior PCRA petition, which raised an issue under Atkins . . . .” Id. at 7.) As such, the appeals from the District Court’s Order granting habeas relief with respect to Plaintiff’s death sentence remains pending in the Third Circuit Court of Appeals as well, and the stay imposed by the District Court of its Order vacating Plaintiff’s death sentence is still in effect.
4

Accordingly, the following Order is entered: AND NOW this 15th day of September, 2017, upon consideration of Plaintiff’s Motion for a Preliminary Injunction and Defendants’ Response thereto, IT IS HEREBY ORDERED that Plaintiff’s Motion for Preliminary Injunction is DENIED.
BY THE COURT: /s/ Maureen P. Kelly MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE cc: Ernest Porter AY7434 SCI Greene 175 Progress Drive Waynesburg, PA 15370 All counsel of record via CM/ECF
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERNEST PORTER,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL, ROBERT GILMORE, and JOHN/JANE DOES,
Defendants.

)

)

)

Civil Action No. 17-763

)

Magistrate Judge Maureen P. Kelly

)

)

Re: ECF Nos. 52 and 54

)

)

)

)

)

)

OPINION AND ORDER KELLY, Magistrate Judge
Plaintiff Ernest Porter (“Porter”), an inmate at the State Correctional Institution at Greene (“SCI – Greene”) has presented a counseled civil rights complaint pursuant to 42 U.S.C. § 1983, which he has been granted leave to prosecute without prepayment of costs. Porter alleges that Defendants Robert Gilmore, the Pennsylvania Department of Corrections (“DOC”), and John E. Wetzel (collectively, “Defendants”) have violated his rights provided by the Eighth and Fourteenth Amendments to the United States Constitution by continuing to confine him in the Capital Case Unit (“CCU”) even though his sentence of death has been vacated.
Presently before the Court are a Motion for Summary Judgment filed on behalf of Defendants, ECF No. 52, and a Motion for Summary Judgment filed on behalf by Porter, ECF No.

54. For the reasons that follow, the Motion for Summary Judgment filed by Defendants is granted and the Motion for Summary Judgment filed by Porter is denied. 1 I. FACTUAL AND PROCEDURAL BACKGROUND
A. Status of Plaintiff’s Sentence Over thirty-three years ago, on April 27, 1985, Porter robbed and murdered Raymond Fiss as Fiss was opening his beauty shop in Philadelphia, Pennsylvania. Porter was convicted of, inter alia, murder in the first degree on June 27, 1986, in the Court of Common Pleas of Philadelphia County, Pennsylvania, and subsequently sentenced to death. ECF No. 55 ¶ 37. His conviction and sentence were subsequently affirmed by the Supreme Court of Pennsylvania on February 8, 1990. Commonwealth v. Porter, 569 A.2d 942 (Pa. 1990); ECF No. 55 ¶ 38. On March 23, 1995, Porter filed a petition for relief under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541 et seq. See Commonwealth v. Porter 728 A.2d 890 (Pa. 1999). The PCRA petition was denied in the trial court and the denial was affirmed on appeal. Id.; ECF No. 55 ¶ 39. Porter filed a timely Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania on May 25, 1999. On June 26, 2003, the District Court granted in part and denied the habeas petition. Porter v. Horn, 276 F. Supp. 2d 278, 364-65 (E.D. Pa. 2003), ECF No. 55 ¶ 41. Specifically, the District Court granted relief with respect to Plaintiff’s sentence of death, which was vacated, but denied the petition in all other respects: AND NOW, this 26th day of June 2003, upon consideration of Petitioner’s Petition for Writ of Habeas Corpus (Doc No. 14), all Responses and Replies thereto, all
1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to having a United States Magistrate Judge conduct all proceedings in this case, including the entry of a final judgment. ECF Nos. 3, 17.
2

documents filed in support thereof an in opposition thereto, the record of
Petitioner’s case in state court, the expanded record, and evidence presented at the
evidentiary hearing, it is hereby ORDERED, consistent with the foregoing opinion,
that:
1. Petitioner Ernest Porter’s Petition for Writ of Habeas Corpus is GRANTED as to Claim V, which related to the Court’s determination that there is a reasonable likelihood the jury interpreted the penalty phase jury instructions and verdict form in a way that prevented the consideration of constitutionally relevant evidence;
2. the Petition is DENIED in all other respects;
3. Petitioner’s death sentence is VACATED;
4. the execution of the writ of habeas corpus is STAYED for 180 days from the date of this Order, during which period the Commonwealth of Pennsylvania may conduct a new sentencing hearing in a manner consistent with this opinion;
5. after 180 days, should the Commonwealth of Pennsylvania not have conducted a new sentence hearing, the writ shall issue and the Commonwealth shall sentence Petitioner to life imprisonment;
6. in accordance with 29 U.S.C. § 2253, a certificate of appealability is GRANTED to Petitioner regarding Claims III, IV, VI, VII, VIII, XII, XIII and XIV; and
7. if either Petitioner or Respondents file an appeal to the United States Court of Appeals for the Third Circuit, the entry of this Order will be stayed pursuant to Eastern District of Pennsylvania Local Rule 9.4 (12) pending the disposition of that appeal.
BY THE COURT:
ROBERT F. KELLY, SR. J.
No. 99-2677 (E.D. Pa. June 26, 2003), ECF No. 109 at 136-137 (the “Stay Order”).
Thereafter, on August 11, 2003, and August 20, 2003, both Porter and the Commonwealth
filed separate appeals to the United States Court of Appeals for the Third Circuit at Docket Nos.
3

03-9006 and 03-9007, respectively. ECF Nos. 55-1 at 57, 69. As relevant to this matter, the
Commonwealth appealed the portion of the Order vacating Porter’s death sentence, and Porter
appealed the denial of relief as to his underlying conviction. In accordance with Paragraph 7 of
the Stay Order, the filing of these two appeals resulted in a stay of the entry of the Order vacating
Porter’s sentence of death.
On February 12, 2004, Porter filed a motion to stay the briefing schedules in both appeals,
pending a decision by the United States Supreme Court in Banks v. Horn, No. 02-1603, 124 S. Ct.
45 (2003). ECF No. 55-1 at 71. The United States Court of Appeals for the Third Circuit granted
Porter’s unopposed motion and entered an order on February 12, 2004, staying the briefing
schedules. The briefing schedule stay was lifted on September 8, 2004, following the Supreme
Court’s decision in Banks.
As set forth in this Court’s prior Memorandum Order relative to Porter’s Motion for
Preliminary Injunction, the appeal was again delayed:
Although the stay was lifted on September 8, 2004, following the Supreme Court’s decision in Banks, Plaintiff subsequently filed two motions on October 22, 2004, and October 27, 2004, respectively, asking that the briefing schedules be temporarily tolled pending the disposition of two other cases then pending in the United States Supreme Court. [ECF No. 55-1 at 60, 72]. Plaintiff subsequently withdrew one of those requests and, following the Supreme Court’s decision in the second case, the briefing schedules on Plaintiff’s cases were reinstated. [Id.] Plaintiff, however, filed four motions seeking an extension of time of 60 days each to file his brief and appendix, which were all granted. Id. Then, on November 9, 2006, Plaintiff filed a Motion asking to hold the appellate proceedings in abeyance pending the Pennsylvania Supreme court’s disposition of Plaintiff’s Petition for State Post-Conviction Relief filed on August 16, 2002, wherein he raised a claim under Atkins v. Virginia, 536 U.S. 304 (2002). [ECF No. 55-1 at 61, 73]. That motion was granted by the Third Circuit Court of Appeals on February 7, 2007, with the added directive that the parties were to file status reports regarding the PCRA proceedings every 60 days until the conclusion of the state proceedings. [ECF No. 55-1 at 61-62, 73]. [….] (It should be noted here that Plaintiff supplemented his PCRA Petition on June 15, 2006, raising a claim under Brady v. Maryland, 373 U.S. 83 (1963). Although the PCRA court issued a ruling dismissing the PCRA Petition on November 8, 2007, it did so finding that it was
4

time-barred and did not meet the requirement of Brady material. Com. v. Porter, 35 A.3d 4, 7-11 (Pa. 2012). The PCRA court did not address the Atkins issue and that portion of the PCRA Petition remains pending. Indeed, in its opinion affirming the denial of post-conviction relief, the Pennsylvania Supreme Court directed the PCRA court “to promptly dispose of appellant’s long-pending prior PCRA petition, which raised an issue under Atkins….” Id. at 7). Porter v. Pennsylvania Department of Corrections, No. 17-763, 2017 WL 4099784 at *2 n.2 (W.D. Pa. Sept. 15, 2017) (italics added). In its directive to the trial court to resolve Porter’s Atkins-related PCRA petition expeditiously, the Pennsylvania Supreme Court observed that the procedural delay resulted from a counseled strategy of filing serial PCRA petitions during the pendency of federal habeas review, and requesting stays in both state and federal court. “The point is simple and fundamental, obscured here only by the fact that federal counsel’s strategy – pursued in both state and federal court – has been to avoid having any of appellant’s collateral claims decided any time soon. This is a legally dubious, but common, strategy peculiar to certain capital defense counsel, who view delay as an end in itself for those condemned under a sentence of death.” Commonwealth v. Porter, 35 A.3d 4, 15 (Pa. 2012). The Court acknowledged that proceeding with a meritorious Atkins claim had consequences, “including conditions of incarceration, which specifically counsel against the deferral of legitimate death eligibility claims.” Id. at 17. Accordingly, “[t]here simply is no legitimate reason to defer decision of an Atkins claim, unless it lacks merit.” Id. Despite the above-noted 2012 Order of the Pennsylvania Supreme Court, the latest status report filed with the Third Circuit on June 12, 2018, indicates that Plaintiff’s Atkins-related PCRA petition remains pending before the Court of Common Pleas of Philadelphia County. Porter’s appointed habeas counsel represents that he continues to discuss settlement of this matter with the Philadelphia District Attorney’s Office. ECF No. 55 ¶ 47; Porter v. Horn, Nos. 03-9006 and 039007, ECF No. 003113057982 (3d Cir. October 11, 2018). As a result of this procedural stalemate,
5

the Commonwealth’s appeal from the District Court’s Order granting partial habeas relief with respect to Porter’s death sentence remains pending in the Third Circuit, and the stay imposed by the District Court vacating Porter’s death sentence is still in effect, some fifteen years later.
B. Conditions of Confinement Upon sentencing on June 27, 1986, Porter was placed in the custody of the Pennsylvania DOC and, pursuant to 61 Pa. C.S.A. § 4303, was assigned to solitary confinement in the Level 5 housing Capital Case Unit (“CCU”) at SCI – Greene, a unit that houses death-row inmates.2 ECF No. 55 ¶¶ 1, 21. Cells in the CCU are no larger than 7 feet by 12 feet, and are closed with a door that has two narrow vertical windows, measuring 5 ½ inches wide and 36 inches long. Id. ¶¶ 3, 4. The permanent fixtures in Porter’s cell include a metal bed with a plastic mattress, a sink, toilet and desk. Id. ¶ 6. As a CCU inmate, Porter spends the overwhelming majority of his time in his cell, including eating his meals alone. Id. ¶ 7. Porter is permitted to leave his cell for ten hours per week, two hours per day Monday through Friday. Id. ¶ 5. This includes time for basic hygiene, three showers per week, and for work duty. Id. ¶ 8. In addition, Porter is permitted to exercise in the open air five days per week. Id. ¶ 14. CCU exercise cages are no more than twice the size of a typical CCU cell, and one or two men are placed in an exercise area at the same time. Id. ¶¶ 15, 16. Porter is permitted one non-contact personal visit per week, and three telephone calls per week.
2 The applicable Pennsylvania statute provides: [T]he secretary [of corrections] shall, until infliction of the death penalty ... keep the inmate in solitary confinement. During the confinement, no person shall be allowed to have access to the inmate without an order of the sentencing court, except the following: (1) The staff of the department. (2) The inmate's counsel of record or other attorney requested by the inmate. (3) A spiritual adviser selected by the inmate or the members of the immediate family of the inmate.
61 Pa. Cons. Stat. Ann. § 4303.
6

Id. ¶¶ 11, 13. In addition, unless Porter specifically requests a mental health appointment, any medical or mental health consultations take place through his cell door, within listening range of prisoners in the surrounding cells. Id. ¶ 20.
On the occasions when Porter is permitted to leave his cell, he must undergo a visual strip search, and is handcuffed from behind, or handcuffed in front using a belt and tether. Id. ¶¶ 9, 10. Job assignments are limited to janitorial duties on the CCU block, and performed in confined small spaces under close observation and monitoring. Id. ¶ 18. CCU prisoners are permitted in-cell study, using personal workbooks and reading material, but are otherwise precluded from participation in adult basic education courses, vocational learning opportunities or the chance to work towards a high school diploma. Id. ¶ 19. In addition, Porter is not permitted to attend religious services with the general population, but may receive a daily visit from a religious leader, for discussions through the narrow windows of his door. Id. ¶ 20.
Porter claims that as a result of the conditions of his confinement, he has suffered deterioration of his mental health, including “severe anxiety, depression, panic, paranoia, bipolar mood swings and sometimes suicidal impulses,” for which he is prescribed anti-depressant medication. ECF No. 9 ¶ 21. In response to grievances related to Porter’s continued detention in the CCU, Defendant Gilmore noted that Porter receives mental health services and indicated that additional services may be requested through Porter’s counselor or the SCI-Greene Psychology Department. ECF No. 9-7. Delivery of mental health services occurs in a number of ways. A psychology staff member is assigned to the CCU on a full-time basis. ECF 55-2 at 59. In addition, each CCU inmate receives weekly psychiatric visits, and can request additional services on an asneeded basis. Id. If an inmate is experiencing a mental health emergency, staff can arrange for off-duty consultation with medical staff. When a CCU inmate is identified as decompensating, he
7

or she can be placed into a Diversionary Treatment Unit (“DTU”) for interactive therapy or a mental health unit on a temporary basis. Id. at 59-60.
There is no evidence in the record before this Court that Porter required or requested (and did not receive) additional mental health services or placement in a specialized housing unit for mental health purposes. Further, there is no evidence of record that either Defendant Wentz or Defendant Gilmore were aware that available mental health treatment was insufficient for Porter’s claimed mental health diagnoses.
It is undisputed that over the course of Porter’s thirty-two years of solitary confinement, Porter has never been cited for disciplinary misconduct. ECF No. 55 ¶ 29. Despite his unremarkable behavior, and solely because of the status of his death sentence, the parties further agree that Porter “lacks the opportunity to earn additional privileges” to further demonstrate his ability to self-manage his behavior. Id. ¶ 30. DOC Policy DC-ADM 802 does not provide prisoners in the CCU with the opportunity to challenge prolonged placement in solitary confinement. Id. ¶ 31.
C. Porter’s Claims In Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549 (3d Cir. 2017), the United States Court of Appeals for the Third Circuit recognized that “[i]nmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty.” Id. at 574. “Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row. The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.” Id.
8

Citing Williams, Porter brings this action, asserting that his death sentence has been vacated, and thus his continued incarceration in the CCU violates his procedural and substantive due process rights under the Fourteenth Amendment. In addition, based upon the conditions of his allegedly wrongful confinement in the CCU, Porter asserts that his incarceration has subjected him to cruel and unusual punishment in violation of the Eighth Amendment. In his Complaint, ECF No. 9, Porter seeks declaratory relief in the form of a declaration that his constitutional rights have been violated, and claims that as a result of his wrongful confinement to death row, he is entitled to compensatory and punitive damages.3 ECF No. 9 ¶¶ 32, 37, 42, 47, 52.
After extensive discovery, including the deposition of appropriate prison personnel and the exchange of an expert report regarding the alleged absence of legal justification for Porter’s longterm solitary confinement, Porter now moves for the entry of summary judgment in his favor with regard to his Fourteenth Amendment procedural and substantive due process claims. ECF Nos. 54, 56.
Defendants respond that Williams is specifically limited to situations where a sentence has been vacated and all that remains is a resentencing hearing. According to Defendants, in this case, the order vacating Porter’s sentence was stayed for purposes of appeal and so, by operation of law, his sentence of death remains in effect. Under these circumstances, Defendants contend that no procedural or substantive due process violation has occurred, and Pennsylvania law requires Porter’s continued confinement in the CCU. In addition, to the extent Porter alleges an Eighth Amendment conditions of confinement claim arising from the impact of long-term solitary
3 In response to Defendants’ Motion for Summary Judgment, Porter voluntarily withdraws his equal protection claims against all parties, as well as all claims against the Pennsylvania Department of Corrections. ECF No. 60 at 14-15. Accordingly, summary judgment is entered in favor of Defendant Pennsylvania Department of Corrections as to all claims, and in favor of Defendants Wetzel and Gilmore with respect to Porter’s Fourteenth Amendment equal protections claims.
9

confinement upon his mental health, Defendants contend that Porter failed to properly exhaust this claim as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Defendants further argue that pursuant to Section 1983, Porter has not sufficiently alleged or established the personal involvement of Defendants Wetzel and Gilmore in the deprivations at issue and has otherwise failed to muster evidence sufficient to establish that his Eighth Amendment rights have been violated. Finally, Defendants contend that if the Court concludes that Porter’s substantive or procedural due process rights have been violated, each is shielded from liability as to all claims by application of the doctrine of qualified immunity because Williams has not been applied previously to situations where an order vacating a sentence of death is stayed pending appeal. In support of each of these arguments, Defendants seek the entry of summary judgment as to all pending claims. ECF No. 52.
The parties have filed extensive briefs and exhibits in support and in opposition to the pending Motions for Summary Judgment, ECF Nos. 53, 55, 56, 59, 60 and 62, and the Motions are ripe for review. II. STANDARD OF REVIEW
Summary judgment may only be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Pursuant to Rule 56, the court must enter summary judgment against the party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will only be denied when there is a genuine issue of material fact, i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). The mere existence
10

of some disputed facts is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In determining whether the dispute is genuine, the court’s function is not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. The court is only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. McGreevy, 413 F.3d at 363; Simpson v. Kay Jewelers, 142 F.3d 639, 643 n.3 (3d Cir. 1998) (citing Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)). In evaluating the evidence, the court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). As to materiality, the relevant substantive law identifies which facts are material. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, inferences based upon speculation or conjecture do not create a material factual dispute sufficient to defeat a motion for summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
As indicated, each party has moved for the entry of judgment as a matter of law. However, the standards under which a court grants or denies each party summary judgment do not change by virtue of cross-motions being presented. Home for Crippled Children v. Prudential Insurance Co., 590 F. Supp. 1490, 1495 (W.D. Pa. 1984). “On cross-motions for summary judgment, the law in our Circuit is clear—the Court considers each Motion on its own merits, tested against the standards of [Federal Rule of Civil Procedure 56].” U.S. Equal Employment Opportunity Comm’n v. Bob Evans Farms, LLC, 275 F. Supp. 3d 635, 639 (W.D. Pa. 2017) (internal citations omitted).
11

III. DISCUSSION A. Procedural Due Process Claim - Liberty Interest “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations
of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ … or it may arise from an expectation or interest created by state laws or policies.” Id. (internal citations omitted). The United States Supreme Court has recognized that with respect to adverse conditions of confinement, the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement, because “confinement … is within the normal limits or range of custody which [a] conviction has authorized the State to impose.” Id., quoting Meachum v. Fano, 427 U.S. 215, 225 (1976). Accordingly, “[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995). However, a state-created liberty interest in avoiding freedom from restraint may arise from state policies or regulations “which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Wilkinson, 545 U.S. at 222–23; and see Williams, 848 F.3d at 559. Where a sufficient liberty interest is at stake, the Due Process Clause requires meaningful procedural protections to permit periodic individualized assessment of the asserted penological justification supporting continued exposure to atypical conditions.
In the instant case, Porter contests the validity of continuous confinement on death row as imposing an atypical and significant hardship, and therefore a violation of his Fourteenth
12

Amendment due process rights due to the absence of an individualized assessment justifying the need for his placement.
Porter’s due process claims rely in large part upon the application of the precedential opinion of the United States Court of Appeals for the Third Circuit in Williams, where after a lengthy review of the conditions faced by inmates in the Pennsylvania DOC’s CCU and the “robust body of scientific research” on the effects of solitary confinement, the Third Circuit unequivocally concluded that with respect to inmates awaiting resentencing and no longer subject to active death sentences, the Fourteenth Amendment requires procedural protections to ensure that continued confinement to death row is imposed for legitimate penological purposes. Williams, 848 F.3d at 573. The Third Circuit went on to explain, “scientific research and the evolving jurisprudence has made the harms of solitary confinement clear: Mental well-being and one’s sense of self are at risk. We can think of few values more worthy of constitutional protection than these core facets of human dignity.” Id. at 574. The Third Circuit made “clear what prison officials should have already known: those no longer subject to the death penalty … have a due process right to be free from indefinite conditions of solitary confinement.” Id. at 574-75.4
In reaching its decision in Williams, the Third Circuit repeatedly acknowledged that it was not deciding the issue of whether an inmate with an “active” death sentence had a liberty interest that precluded confinement on death row without regular review. In footnote 2, the Third Circuit noted that “Plaintiffs have both had their death sentences vacated but were nevertheless detained in solitary confinement on death row. We take 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
4 The two plaintiffs in Williams were in a significantly different position than Porter. There, the death sentences of the two inmates were vacated but the inmates were kept in solitary confinement six and eight years, respectively, until they were finally resentenced to life imprisonment and placed in general population.
13

their continued confinement on death row is justifiable.” Id. at 553 n.2. The Court summarized its holding as follows: “the Due Process Clause of the Fourteenth Amendment … limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.” Id. at 552. So defined and limited, if the June 26, 2003 Stay Order renders Porter’s death sentence still “active,” Williams informs but is not dispositive as to Porter’s due process claim, for it acknowledges the “State’s ability to subject an inmate to the deprivations of death row.” Id.
The State’s authority derives from Pennsylvania statutory provisions requiring that inmates sentenced to death be subject to solitary confinement, with access to only staff of the department, the inmate’s counsel of record, and a spiritual advisor. 61 Pa. C.S.A. § 4303. See fn. 2, supra. For those inmates with an active death sentence, solitary confinement until death is a component of the sentence imposed, and accordingly cannot give rise to the requisite expectation or interest in typical conditions of confinement enjoyed by general population inmates to support a Fourteenth Amendment claim. Williams, 848 F.3d at 569 (“[h]owever, [with regard to inmates confined to death sentences that had not been vacated], those inmates were all confined pursuant to death sentences that had not been vacated. Accordingly, confinement on death row was not a significant or atypical hardship for them. Rather, it was expressly within the “expected perimeters of the sentence imposed.”).
Further, through his pending post-conviction appeals, Porter continues to be afforded the opportunity to challenge his death sentence and the terms of his confinement. This factor is particularly relevant given the relief sought through his pending due process claim; i.e., procedural protections to permit examination of the propriety of his confinement on death row. Under these
14

circumstances, it cannot be said that Porter has been deprived of a liberty interest without adequate
process.
That said, if Porter is subject to a vacated death sentence that is no longer “active,” then
his claim falls squarely within Williams, and he has an established due process right to be free
from indefinite conditions of solitary confinement without periodic examination of the reasons for
continued placement on death row. Accordingly, the Court next considers the effect of the June
26, 2003 Stay Order to determine whether Porter has established a viable procedural due process
claim.
B. Procedural Due Process Claim - Effect of Stay Order
As explained by the United States Supreme Court in Nken v. Holder, 556 U.S. 418 (2009),
It takes time to decide a case on appeal. Sometimes a little; sometimes a lot. “No court can make time stand still” while it considers an appeal, Scripps–Howard Radio, Inc. v. FCC, 316 U.S. 4, 9, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), and if a court takes the time it needs, the court’s decision may in some cases come too late for the party seeking review. That is why it “has always been held, ... that as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.” Id., at 9– 10, 62 S.Ct. 875 (footnote omitted). A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.
Nken, 556 U.S. at 421. In contrast to an injunction, “a stay operates upon the judicial proceeding
itself. It does so either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability. See Blacks [Law Dictionary] at 1413 (6th ed. 1990) (defining
‘stay’ as ‘a suspension of the case or some designated proceedings within it.’).” Id. at 428.
The United States Supreme Court went on to distinguish between a stay pending appeal
and injunctive relief with regard to whether an order is presently viable:
A stay pending appeal certainly has some functional overlap with an injunction, particularly a preliminary one. Both can have the practical effect of preventing
15

some action before the legality of that action has been conclusively determined. But a stay achieves this result by temporarily suspending the source of authority to act— the order or judgment in question—not by directing an actor’s conduct. A stay “simply suspend[s] judicial alteration of the status quo,” while injunctive relief “grants judicial intervention that has been withheld by lower courts.”
Id. at 428–29. In this case, Porter contends that the Stay Order vacating his death sentence places him in
the identical procedural posture of the vacated death sentences at issue in Williams, supra, where both plaintiffs’ death sentences had been vacated, and the trial court awarded each of them a new penalty hearing. ECF No. 56 at 10-12. However, in both cases, the State did not appeal the portion of the Order vacating the sentences of death. Williams, 848 F.3d at 555-56. Given the State’s failure to appeal the court’s invalidation of the death sentences, neither prisoner was subject to a stay of an active sentence of death during the pendency of the appeals. Here, the District Court stayed its order vacating Porter’s death sentence pending the specific appeal of the death sentence portion of the order by the State which, pursuant to Nken, temporarily suspended “the source of authority to act—the order or judgment in question.” Nken, 556 U.S. at 428-29. As such, the Stay Order at issue here returns the matter “to the status quo – the state of affairs before the … order was entered.” Id. Accordingly, the Stay Order did not achieve what Porter represents; rather, Porter’s sentence of death remains unaltered pending the disposition of his federal appeal. Because Porter is the subject of an active death sentence, Defendants are entitled to the entry of judgment in their favor as to Porter’s Fourteenth Amendment procedural due process claim. 5
5 If the stay of the order vacating Porter’s death sentence is lifted, effectively resulting in the entry of the Order vacating his death sentence, then Porter will no longer be subject to an active death sentence. At that time, Porter would have the Fourteenth Amendment procedural due process right to avoid “unnecessary and unexamined solitary confinement” as recognized by Third Circuit in Williams.
16

C. Substantive Due Process Claim
Porter seeks the entry of summary judgment in his favor with regard to a Fourteenth
Amendment substantive due process claim, based upon his contention that Defendants’
indifference to the mental and physical impact of long-term solitary confinement is arbitrary and
shocks the conscience. ECF No. 56 at 15-16. In their cross-motion for summary judgment,
Defendants argue that Porter’s substantive due process claim is barred by the “explicit source rule,”
because the challenged conduct is properly addressed by the protections afforded under the Eighth
Amendment and Porter has not established an independent basis for his Fourteenth Amendment
substantive due process claim. The Court agrees.
In Betts v. New Castle Youth Development Center, the United States Court of Appeals for
the Third Circuit explained the rule as follows:
Noting its “reluctan[ce] to expand the concept of substantive due process,” the Supreme Court has established the “more-specific-provision rule.” County of Sacramento v. Lewis, 523 U.S. 833, 843–44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Under this rule, “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (clarifying prior holing in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Supreme Court explained the rationale behind the rule for Eighth Amendment claims in Whitley v. Albers, where a prisoner shot in the leg during a prison riot filed both Eighth Amendment and Fourteenth Amendment substantive due process claims against prison officials:
[T]he Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, “conduct that shocks the conscience” or “afford[s] brutality the cloak of law,” and so violates the Fourteenth Amendment, were not also punishment “inconsistent with contemporary standards of decency” and “‘repugnant to the conscience of mankind,’” in violation of the Eighth.... [I]n these circumstances the Due Process
17

Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause. 475 U.S. at 327, 106 S.Ct. 1078 (internal citations omitted). Compare with County of Sacramento, 523 U.S. at 843, 118 S.Ct. 1708 (rejecting application of morespecific-provision rule to substantive due process claim arising from high speed police chase because facts were not within “search and seizure” protections of Fourth Amendment).
Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010). In this instance, Porter contends that he has a “due process liberty interest in avoiding the harsh conditions of solitary confinement.” ECF No. 62 at 4. As defined by him, Porter’s substantive due process claims for relief under the Fourteenth Amendment challenge the same conduct and conditions at issue under his Eighth Amendment “cruel and unusual punishment” claim; in particular, Defendants’ deliberate indifference to the physical and psychological harms caused by long term solitary confinement. Porter’s substantive due process claim therefore is “covered” by the Eighth Amendment, and Porter is foreclosed from simultaneously pursuing a substantive due process claim. Therefore, Defendants’ Motion for Summary Judgment is granted on this basis.
D. Eighth Amendment Claim Porter also presents an Eighth Amendment claim, challenging the extraordinary conditions faced by him as an inmate confined in the CCU on Pennsylvania’s death row. Defendants seek entry of judgment in their favor as a matter of law because: (1) Porter failed to file a grievance specifically challenging his conditions of confinement on death row and therefore failed to exhaust his claim as required by the PLRA; (2) there is no evidence of the personal involvement of either Defendant in the creation or imposition of the conditions at issue; and, (3) Porter fails to establish that he has been deprived of any of “the minimal civilized measure of life’s necessities.” ECF No. 53 at 14-24. For the reasons that follow, the Court denies Defendants’ Motion for Summary Judgment on the basis of exhaustion and personal involvement, but finds that Porter has not
18

presented evidence to establish that Defendants were deliberately indifferent to a known substantial risk of serious harm to Porter’s mental health due to the availability of substantial psychological care, and the dearth of evidence that either Defendant was aware that the care afforded to Porter was insufficient.
1. Exhaustion The PLRA, 42 U.S.C. § 1997(e)(a), provides as follows: No action shall be brought with respect to prison conditions under section 1983 of this title by a prisoner confined in jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
The PLRA also mandates “proper exhaustion” of all the agency’s deadlines and other procedural rules pertaining to its administrative remedy process. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “‘[P]rison grievance procedures supply the yardstick’ for determining what steps are required for exhaustion.” Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004)). “[T]o properly exhaust administrative remedies, prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules’” as they are “defined ... by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Ngo, 548 U.S. at 93). “[I]t is the prison’s [administrative remedy] requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. at 218. Failure to comply substantially with the procedural requirements of the applicable prison's grievance system will result in a procedural default of the claim. Spruill, 372 F.3d at 227–32; see also Williams, 482 F.3d at 639 (inmate “procedurally defaulted” when he failed to comply with the requirements of the prison’s grievance procedures). Of particular relevance here, “[t]he level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
19

boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. at 218. In making this determination,
“exhaustion is a question of law to be determined by a judge, even if that determination requires
the resolution of disputed facts.” Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013).
The procedural requirements of the DOC Inmate Grievance System are set forth in Policy
DC-ADM 804 and, as relevant here, require an inmate to present a signed and dated grievance
containing the following information:
The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim.
a. The statement of facts shall include the date, approximate time, and location of the events(s) that gave rise to the grievance.
b. The inmate shall identify individuals directly involved in the event(s).
c. The inmate shall specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law.
d. If the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance.
ECF No. 55-2 at 145 (DC-ADM 804.1.A.11). On March 2, 2017, Porter submitted Inmate
Grievance No. 666916, stating a follows:
In accordance with the new recent Third Circuit Court Order in “Craig Williams v. Dept. of Corrections”, where (they) the Court made it clear that all inmates currently on death row that no-longer have a current legal death sentence should be removed from death row!! Sadly, I am one of those inmates, and I have requested to be removed from death row and allowed to move into general population.
However, to date I have not been removed from death row, and is illegally being subjected to solitary confinement on death row. For which, failure from this day forward to heel to the Court Order, I will sue the D.O.C. $5,000.00 for each day I remain illegally on Death row.
20

Id. at 177 (emphasis in original). Porter received an initial decision denying his grievance and request for relief, stating that while the DOC was aware of the Court’s decision, no change in DOC policy had yet been announced. Id. at 179. The response further indicated that Porter was receiving available mental health services, and that additional services were available if requested. Id. Porter appealed the denial of his grievance to Defendant Gilmore, in his role as Superintendent of SCI – Greene, and received a decision affirming the initial response. Porter submitted an appeal to final review with the DOC Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”), stating that he suffered declining mental health as a result of the conditions of his confinement, and requesting an immediate transfer to general population. Id. at 180-188.
Defendants argue that despite Porter’s compliance with the administrative review process, he failed to exhaust his Eighth Amendment claim related to confinement on death row because his grievance challenging continued confinement in the CCU does not specifically invoke the phrase “Eighth Amendment” or detail the allegedly cruel conditions of confinement. This argument fails. Neither the prison’s grievance process nor legal precedent requires inmates to identify the precise legal theory or statutory source of a claim, but merely to state the claim he or she wishes to raise “concerning violations of Department directives, regulations, court orders, or other law.” Id. at 145. Porter plainly and clearly stated that he was “illegally being subjected to solitary confinement on death row.” Id. at 177. In the grievance appeal process, he stated that he was “suffering the deprivation associated with death row,” and that his “mental pain and suffering continues.” These allegations were certainly sufficient to provide prison officials notice of the basis of his claim, and a fair opportunity to address the underlying issue; i.e., Porter’s solitary confinement was causing him harm. Notably, beginning with the initial response to Porter’s grievance, prison officials including Defendant Gilmore reminded Porter that “a broad continuum of mental health services
21

is available to every inmate, regularly,” id. at 179, and that if he felt the need for additional services, he should notify his counselor and/or the psychology department. Id. at 183. Based upon these statements, it is clear that prison officials understood the scope of Porter’s grievance as including the imposition of conditions of confinement causing or likely to cause harm to Porter’s mental well-being. Under these circumstances, Porter has appropriately exhausted administrative remedies with regard to his Eighth Amendment claim, and Defendants’ Motion for Summary Judgment on this basis is denied. See e.g., Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (“In determining whether exhaustion has been achieved, we have drawn an analogy between the contents of an administrative grievance and notice pleading, explaining that ‘[a]s in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.’” Id., quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
2. Personal Involvement To maintain a claim pursuant to 42 U.S.C. § 1983, each individual defendant “‘must have personal involvement in the alleged wrongdoing.’” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. In this instance, Defendants contend that summary judgment is appropriate because Porter has failed to establish that either Wetzel or Gilmore was personally involved in the complained of violations of his Eighth and Fourteenth Amendment rights. The United States Court of Appeals for the Third Circuit recognizes two theories of supervisory liability: first, individuals who are policymakers may be liable under Section 1983 if it is shown they “with deliberate indifference to the consequences, established and maintained a
22

policy, practice or custom which directly caused the constitutional harm;” and, second, a supervisor may be personally liable under Section 1983 if he “participated in violating the plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004); Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016).
In this instance, it is apparent that the DOC policy at issue, establishing the challenged conditions of confinement in the CCU, was implemented at the direction of Defendant Wetzel, as Secretary of the DOC. See, e.g., Hall v. Wetzel, No. 17-cv-4738, 2018 WL 1035780 (E.D. Pa. Feb. 22, 2018) (district court recognizing Defendant Wetzel’s role as Secretary of the DOC and therefore responsible for establishing and implementing CCU policy); Shoatz v. Wetzel, No. 13cv-0657, 2016 WL 595337 (W.D. Pa. Feb. 12, 2016) (Defendant Wetzel acknowledged his role as the sole decision-maker regarding the plaintiff’s solitary confinement); Johnson v. Wetzel, 209 F. Supp. 3d 766, 779 (M.D. Pa. 2016) (“The record reflects that Secretary Wetzel knows well the risks inherent in prolonged isolation. Secretary Wetzel agreed that ‘long term’ solitary confinement ‘certainly could’ have negative effects on mental health and that Johnson’s thirty-six year confinement is ‘certainly’ considered long term.… Moreover, Secretary Wetzel stated that he is familiar with the work of Dr. Haney, which sets forth at length the harmful effects of solitary confinement. The court finds that Secretary Wetzel—the only defendant with authority to remove Johnson from the RRL—knew of the significant mental health risks attending extended isolation.”). In light of each of these prior federal court decisions recognizing Secretary Wetzel’s role in implementing policies regarding the conditions of solitary confinement, Defendants’ Motion for Summary on the basis of personal involvement as to Secretary Wetzel is denied.
23

Similarly, the evidence of record establishes that Defendant Gilmore has acknowledged his participation and acquiescence in Porter’s continued confinement. In his response to Porter’s grievance, Gilmore stated that Porter “will remain housed in the Capital Case Unit until directed otherwise.” ECF No. 55-2 at 183. In addition, Gilmore acknowledged the impact of solitary confinement on Porter’s mental health, and volunteered that additional mental health services were available upon request. Id. Under these circumstances, Defendants’ Motion for Summary Judgment on the basis of Superintendent Gilmore’s personal involvement is denied.
3. Conditions of Confinement The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII; Whitley v. Albers, 475 U.S. 312, 318–19 (1986). The United States Supreme Court has held that this prohibition imposes affirmative duties on prison officials to “provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)); and see Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015). It is well settled that prison conditions constitute cruel and unusual punishment if they result in serious deprivations of basic human needs. See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410 (3d Cir. 2000). A condition of confinement implicates the Eighth Amendment if it is so reprehensible as to be deemed inhumane under contemporary standards or if it deprives an inmate of minimal civilized measures of the necessities of life. See Hudson v. McMillian, 503 U.S. at 8; Wilson v. Seiter, 501 U.S. 294, 298 (1991). To find that an official has violated the Cruel and Unusual Punishments Clause, “[he] must have a ‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 834. “In prison-conditions cases
24

that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. This is a subjective inquiry. “A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. “In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’ ‘unenviable task of keeping dangerous men in safe custody under humane conditions[.]’ Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Id. at 844-45.
Applying the above-noted established Eighth Amendment law to the facts of this case, Porter must present evidence of both that he was subjected to inhumane conditions and, second, that each Defendant knew or was aware that Plaintiff “faced a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.
Porter contends that the risk of harm of long term solitary confinement is both inhumane and obvious. Certainly, societal standards in this regard have evolved over time. Porter relies upon Williams, where the Third Circuit “first acknowledge[d] the robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement. [W]e observed a growing consensus—with roots going back a century— that [long term isolation] can cause severe and traumatic psychological damage, including anxiety, panic, paranoia, depression, post-traumatic stress disorder, psychosis, and even a disintegration of
25

the basic sense of self identity. And the damage does not stop at mental harm: ‘Physical harm can also result. Studies have documented high rates of suicide and self-mutilation amongst inmates who have been subjected to solitary confinement. These behaviors are believed to be maladaptive mechanisms for dealing with the psychological suffering that comes from isolation.”’ Palakovic v. Wetzel, 854 F.3d 209, 225–26 (3d Cir. 2017) (quoting Williams 848 F.3d at 567–68 (internal citations omitted)).
The obviousness of the risk alone, however, is not sufficient to impose liability. There must also be evidence that despite Secretary Wetzel’s recognition that such “long term solitary confinement certainly could have negative effects on mental health,” Johnson, 209 F. Supp. 3d at 779, and despite the various measures implemented to provide mental health treatment, both Defendants were individually aware that Porter suffered a substantial risk of harm and yet were deliberately indifferent. In this respect, Porter’s claim fails.
Furthermore, Porter certainly presents a wealth of recent legal opinions that the risk of long term solitary confinement is obvious. Although this Court is certainly sympathetic to these risks, as discussed in Williams, unfortunately, nowhere in the record before this Court has Porter provided any evidence whatsoever of his alleged mental decomposition. There are no medical records, no mental health records, no evidence of counseling sessions or treatment for suicidal impulses provided to this Court. Further, the record establishes that because of the known risks of solitary confinement, several measures are in place at the CCU at SCI – Greene, where Porter is confined, to ensure the delivery of mental health treatment on a routine and frequent basis, as well as emergency measures that could, if necessary, result in an inmate’s temporary removal from the CCU for interactive psychiatric and psychological care. ECF No. 55-2 at 59-60. Porter fails to present any evidence that these measures were utilized by him, or were unavailable to him, or even
26

that such measures would fail to ameliorate the harm alleged. Most critically, there is no evidence
that either of the Defendants were aware that the care afforded or available was insufficient so as to place Porter at risk of further decline.6
Summary judgment is appropriate if the nonmoving party provides merely colorable,
conclusory, or speculative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. There must
be more than a scintilla of evidence supporting the nonmoving party and more than some
metaphysical doubt as to the material facts. Id. at 252. “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In this
instance, and after extensive discovery, the evidence mustered by Porter in opposition to the
pending Motion for Summary Judgment fails to present a genuine issue for trial. Accordingly, the Defendants’ Motion for Summary Judgment is granted.7,8
IV. CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed on behalf of
Defendants Pennsylvania Department of Corrections; John E. Wetzel, Secretary for Department
of Corrections; and Robert Gilmore, Superintendent of SCI – Greene, is properly granted. The
6 The Court is compelled to note that the absence of evidence in this case starkly contrasts with Johnson v. Wetzel, 209 F. Supp. 3d 766 (2016), where plaintiff similarly alleged severe psychological deterioration in his complaint, but supported his allegations with a corroborating expert report and testimony of Dr. Craig Haney, a social psychologist. The evidence of record established that the plaintiff “deteriorated to the point of social death as a direct result of his continued isolation.” Id. at 778. 7 During a status conference with the parties, the Court discussed the pending class action lawsuit filed in the United States District Court for the Middle District of Pennsylvania, challenging the conditions of confinement facing all current and future death-sentenced prisoners in the Commonwealth of Pennsylvania. Reid v. Wetzel, No. 18-176 (M.D. Pa.). The Court’s conclusion that Porter remains subject to an active sentence of death necessarily places his claims regarding the conditions of his confinement within the scope of the class action to permit further consideration based upon evidence obtained therein. 8 In light of the disposition of Porter’s Eighth Amendment conditions of confinement claim, the Court does not reach the issue of qualified immunity as a defense to Porter’s claim.
27

Motion for Summary Judgment filed on behalf of Plaintiff Ernest Porter is denied. Accordingly, the following Order is entered:
ORDER
AND NOW, this 8th day of November, 2018, upon consideration of the Motion for Summary Judgment filed on behalf of Defendants Pennsylvania Department of Corrections; John E. Wetzel, Secretary for Department of Corrections; and Robert Gilmore, Superintendent of SCI - Greene, and the Motion for Summary Judgment filed on behalf of Plaintiff Ernest Porter, as well as the briefs and exhibits filed in support and in opposition thereto,
IT IS HEREBY ORDERED that the Motion for Summary Judgment filed on behalf of all Defendants is GRANTED;
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of Plaintiff is DENIED;
IT IS FURTHER ORDERED that the Clerk of Court is to mark the case closed; and IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(l) of the Federal Rules of Appellate Procedure, if the Plaintiff wishes to appeal from this Order he or she must do so within thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P., with the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219.
BY THE COURT,
cc: All counsel of record by Notice of Electronic Filing
28

 
 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-3505 _____________
ERNEST PORTER, Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JOHN E. WETZEL, Secretary for Department of
Corrections; ROBERT GILMORE; Super. for SCI Greene _____________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. Action No. 2-17-cv-000763) Magistrate Judge: Hon. Maureen P. Kelly ______________
Argued October 22, 2019 ______________
Before: GREENAWAY, JR., PORTER and COWEN, Circuit Judges.
(Opinion Filed: September 1, 2020)

Bret Grote [Argued] Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221
Daniel M. Greenfield Roderick & Solange MacArthur Justice Center/Northwestern Pritzker School of Law 375 East Chicago Ave. Chicago, IL 60611
Counsel for Appellant
Michael P. Doss Sidley Austin LLP One South Dearborn St. Chicago, IL 60603
Counsel for Amicus Appellant
Laura Rovner Student Law Office – Civil Rights Clinic University of Denver College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208
Counsel for Amicus Appellant
Daniel B. Mullen [Argued] Kemal Alexander Mericli Office of Attorney General 1251 Waterfront Place, Mezzanine Level Pittsburgh, PA 1522
Counsel for Appellees
2

______________
OPINION _____________
GREENAWAY, JR., Circuit Judge.
In this case, we must decide whether our 2017 decision in Williams v. Secretary Pennsylvania Department of Corrections, 848 F.3d 549 (3d Cir. 2017), applies not only to death row inmates who have been granted vacatur, but also to death row inmates whose vacatur orders have been stayed pending appeal pursuant to local district court rules. In other words, we must determine whether the fact that a Pennsylvania state inmate received habeas relief in federal court, and is thereby subject to local rules, means that that inmate does not have a procedural due process right in avoiding continued indefinite solitary confinement. We decide that Williams governs this case and now hold that the existence of a stay does not extinguish procedural due process rights.
We are also asked to decide whether thirty-three years of solitary confinement may violate the Eighth Amendment. We answer this question in the affirmative. We acknowledge, as we must, that the claimed Eighth Amendment right here has not been clearly established. Further, we hold that representatives of the Pennsylvania Department of Corrections are entitled to qualified immunity on the Eighth Amendment claim. We will therefore reverse and remand in part and affirm in part.
3

I. BACKGROUND
A. Procedural Background
Plaintiff-Appellant Ernest Porter was convicted of murder in the first degree and sentenced to death in the Philadelphia County Court of Common Pleas in 1986. Since then, he has been incarcerated in the Pennsylvania Capital Case Unit (“the CCU”). He is currently housed at SCI Greene.
After his conviction and sentence were affirmed on direct appeal, Porter filed a Pennsylvania Post Conviction Relief Act (“PCRA”) petition in state court. It was denied. But on June 26, 2003, a federal district court in the Eastern District of Pennsylvania granted, in part, Porter’s 28 U.S.C. § 2254 petition. Most important, as relates to the present appeal, the District Court granted Porter relief regarding his sentence after determining that his penalty phase verdict form was unconstitutional. The District Court’s order vacated Porter’s death sentence and required the Commonwealth to conduct a new sentencing hearing within 180 days. Finally, the District Court stated that this order would be stayed if either side appealed: “[I]f either Petitioner or Respondents file an appeal to the United States Court of Appeals for the Third Circuit, the entry of this Order will be stayed pursuant to Eastern District of Pennsylvania Local Rule 9.4(12) pending the disposition of that appeal.” Porter v. Horn, 276 F. Supp. 2d 278, 365 (E.D. Pa. 2003). Local Rule 9.4(12) provides: “If a certificate of appealability is granted, the court must state the issues that merit the granting of a certificate and must also grant a stay pending disposition of the appeal, except as provided in 28 U.S.C. § 2262.” E.D. Pa. Civ. R. 9.4(12).
4

Both Porter and the Commonwealth appealed to the Third Circuit, and the District Court’s order was stayed. On February 7, 2007, we granted Porter’s motion to temporarily hold the appeals in abeyance while the Pennsylvania courts adjudicate another PCRA petition that Porter has filed. We ordered the parties to file periodic status reports every sixty days. Because the Pennsylvania courts have not resolved that petition, the Third Circuit appeals remain in abeyance. The parties last filed a status report on June 30, 2020. Porter v. Horn et al., ECF No. 03-9006 (3d Cir. June 30, 2020).
Porter filed the case before us in the Western District of Pennsylvania on June 12, 2017. He was initially pro se, but subsequently obtained counsel. See Porter v. Penn. Dep’t of Corrs., 2:17-cv-763, ECF Nos. 1, 28-31. In his suit, Porter argued that Defendants violated his rights under the Eighth and Fourteenth Amendments by continuing to confine him on death row even though his death sentence had been vacated. He requested damages, as well as injunctive and declaratory relief. Defendants denied these claims and argued that they were entitled to qualified immunity.
Defendants filed a motion for summary judgment and Porter filed a partial motion for summary judgment. The Magistrate Judge granted Defendants’ motion.1 The Magistrate Judge decided that: 1) Williams does not give Porter a procedural due process interest in avoiding solitary confinement because Porter’s death sentence remains active; 2) Porter has not offered evidence of actual injury or
1 The parties consented to the jurisdiction of the Magistrate Judge. See Porter v. Penn. Dep’t of Corrs., 2:17cv-763, ECF Nos. 3, 17; see also 28 U.S.C. § 636(c).
5

Defendants’ deliberate indifference so he cannot succeed on an Eighth Amendment claim; and 3) Porter cannot make a substantive due process claim based on the same allegations at issue in his Eighth Amendment claim. The Magistrate Judge did not reach the merits of Defendants’ qualified immunity defense.
B. Factual Background
Porter has been in solitary confinement on death row for more than thirty-three years. The Magistrate Judge summarized the conditions that Porter is subjected to daily as follows:
Cells in the CCU are no larger than 7 feet by 12 feet, and are closed with a door that has two narrow vertical windows, measuring 5 ½ inches wide and 36 inches long. The permanent fixtures in Porter’s cell include a metal bed with a plastic mattress, a sink, toilet and desk.
As a CCU inmate, Porter spends the overwhelming majority of his time in his cell, including eating his meals alone. Porter is permitted to leave his cell for ten hours per week, two hours per day Monday through Friday. This includes time for basic hygiene, three showers per week, and for work duty. In addition, Porter is permitted to exercise in the open air five days per week. CCU exercise cages are no more than twice the size of a typical CCU cell, and one or two men are placed in an exercise area at the same time. Porter is permitted one non-contact
6

personal visit per week, and three telephone calls per week. In addition, unless Porter specifically requests a mental health appointment, any medical or mental health consultations take place through his cell door, within listening range of prisoners in the surrounding cells.
On the occasions when Porter is permitted to leave his cell, he must undergo a visual strip search, and is handcuffed from behind, or handcuffed in front using a belt and tether. Job assignments are limited to janitorial duties on the CCU block, and performed in confined small spaces under close observation and monitoring. CCU prisoners are permitted in-cell study, using personal workbooks and reading material, but are otherwise precluded from participation in adult basic education courses, vocational learning opportunities or the chance to work towards a high school diploma. In addition, Porter is not permitted to attend religious services with the general population, but may receive a daily visit from a religious leader, for discussions through the narrow windows of his door.
Porter v. Penn. Dep’t of Corrs., 2018 WL 5846747, at *3–4 (W.D. Pa. Nov. 8, 2018) (internal record citations omitted). The parties agree that Porter has been subjected to these conditions throughout his confinement. It is also uncontested that Porter has not received any disciplinary infractions during his incarceration. However, the parties agree that he is unable
7

to challenge his placement in solitary confinement or to earn any additional privileges.
In his Complaint, Porter alleged that his solitary confinement has caused “irreversible damage” to his mental health. JA 41. More specifically, he alleged that the effects of his solitary confinement include “severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication.” JA 41.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over Porter’s 42 U.S.C. § 1983 suit under 28 U.S.C. § 1331. We have jurisdiction over Porter’s appeal under 28 U.S.C. § 1291. We conduct a plenary review of the grant of summary judgment. See Williams, 848 F.3d at 557. Summary judgment should only be granted 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.” Fed. R. Civ. P. 56(a). We draw all reasonable inferences in the nonmovant’s favor. See Williams, 848 F.3d at 557.
III. DISCUSSION
Porter argues that his thirty-three year incarceration in solitary confinement violates his procedural due process, Eighth Amendment, and substantive due process rights. He has brought suit under 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff [(1)] must allege the violation of a right secured by the Constitution and laws of the United States, and [(2)] must show that the alleged deprivation was
8

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parrat v. Taylor, 451 U.S. 527, 535 (1981)). Defendants argue that they have not violated Porter’s constitutional rights and that they are entitled to qualified immunity because the rights at issue were not clearly established.
Because we are mindful that “it is often appropriate and beneficial to define the scope of a constitutional right” to “promote[] the development of constitutional precedent” before deciding whether the right was clearly established, we will begin by evaluating whether Defendants have violated Porter’s constitutional rights. Williams, 848 F.3d at 558 (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
A. Procedural Due Process
Porter first argues that, according to our precedent in Williams, Defendants have violated his procedural due process rights by keeping him in solitary confinement for thirty-three years without any regular, individualized determination that he needs to be in solitary confinement, even though he has been granted a resentencing hearing. We agree.
“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property . . . . A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (internal citations omitted). “To establish [a statecreated liberty interest under the Fourteenth Amendment] in the conditions of confinement context, courts generally require
9

a showing that the alleged liberty interest is substantial. To rise to the level of a liberty interest, the right alleged must confer ‘freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Williams, 848 F.3d at 559 (quoting Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997)) (alteration and emphasis in original).
Williams governs Porter’s procedural due process claim. In Williams, we held that inmates who have been granted resentencing hearings have a due process liberty interest in avoiding indefinite detention in solitary confinement. Id. at 559–65. Given the scientific consensus on the severe detrimental impacts of prolonged solitary confinement, we decided that the plaintiffs’ indefinite placements on death row constituted extreme deprivation and that these conditions were atypical in comparison with conditions in the general prison population. Id. We held that the employees of the Pennsylvania Department of Corrections (the “DOC”) had violated the plaintiffs’ procedural due process rights by keeping them in solitary confinement after their death sentences were vacated without any individualized determinations that would justify such extreme deprivations.2 Id.
2 In Williams, we did not decide whether inmates who have not been granted resentencing hearings and vacatur have a procedural due process interest in avoiding continued solitary confinement. See Williams, 848 F.3d 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.”). We need not do so
10

The plaintiffs in Williams were, like Porter, originally sentenced to death in Pennsylvania state court. They were granted vacatur of their death sentences and resentencing hearings on PCRA review. However, the Pennsylvania courts denied their challenges to their underlying convictions. The plaintiffs appealed those denials. Their resentencing hearings were delayed while these appeals were pending. Because there was a possibility that they could be resentenced to death, the DOC kept the Williams plaintiffs in the CCU. This decision to maintain their solitary confinement pending resentencing was the basis for their procedural due process challenge.
Here, we are tasked with applying Williams. Porter’s circumstances are analogous to those of the Williams plaintiffs. He too received a resentencing hearing in post-conviction review. Like the Williams plaintiffs, he appealed the district court’s denial of relief on his guilt-phase habeas claims. His resentencing has similarly been delayed pending resolution of the appeals. Moreover, he has spent significantly more time in solitary confinement than the Williams plaintiffs. He has spent thirty-three years total in the CCU, sixteen of which were after he was granted relief in the habeas proceedings.
We are mindful that there are some distinctions between the Williams plaintiffs and Porter. In the view of Defendants, the most significant difference is that the Commonwealth appealed the District Court’s vacatur order; it did not do so in the cases of the Williams plaintiffs. In addition, since Porter
today. Porter does not have an “active and viable” death sentence; like the Williams plaintiffs, he has been granted vacatur and a resentencing hearing but is languishing in solitary confinement while other litigation is pending. Id.
11

was granted habeas relief in federal court (rather than through PCRA proceedings in state court), an EDPA local rule stayed the vacatur order pending the resolution of the appeals.
But we do not think that these differences distinguish Porter for the purposes of his procedural due process rights. In Williams, we specifically held that the procedural due process right attaches for death row inmates whose sentences have been “vacated,” which we defined as “situations where a defendant has initially been sentenced to death, but has subsequently been granted a new sentencing hearing.” Id. at 553 n.4. This describes Porter’s circumstances precisely: like the Williams plaintiffs, Porter was initially sentenced to death, but he has been granted a new sentencing hearing.
We are unconvinced by the Magistrate Judge’s reliance on the Supreme Court’s articulation of the legal impact of a stay in Nken v. Holder, 556 U.S. 418 (2009). In Nken, an immigration case, the Court held that traditional stay factors govern a court of appeals’ authority to stay an alien’s removal pending judicial review. Explaining the distinction between a stay and an injunction, the Court stated that “[a] stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.” Id. at 421. A stay pending appeal “temporarily suspend[s] the source of the authority to act—the order or judgment in question” and “suspend[s] judicial alteration of the status quo.” Id. at 428–29.3
3 Our dissenting colleague characterizes our disagreement with the Magistrate Judge’s reliance on the stay as an “assertion that the habeas court’s stay of the vacatur order accomplished nothing, and that Porter’s death sentence was
12

That the order granting Porter vacatur and a resentencing hearing is stayed does not mean that the order has no legal import or that Porter currently has a viable death sentence. Porter, like the Williams plaintiffs, is in limbo: he may not be resentenced until his appeals are resolved.
Nor are we convinced by Defendants’ argument that the Commonwealth’s appeal meaningfully distinguishes Porter’s case. Pursuant to the EDPA Local Rule and the District Court’s order, the vacatur and resentencing order would have been stayed if either party appealed. In other words, if the Commonwealth had decided not to appeal (as it did for the Williams plaintiffs) but Porter decided to appeal his guilt-phase claims, the order would still have been stayed. The Commonwealth’s appeal did not result in the stay of the vacatur order, and Defendants have not offered any other reason why the Commonwealth’s appeal meaningfully differentiates Porter’s case from Williams.
We do not see any other relevant distinguishing features. In both cases, the plaintiffs could end up with an active death sentence. The Williams plaintiffs could have been resentenced to death in their resentencing hearings, at which point the DOC would have returned them to the CCU. Indeed,
actually vacated.” Dissenting Op. at 5. Not so. The stay certainly has legal effect: as a result of the stay, Porter cannot be resentenced. But the stay does not mean that Porter, for purposes of his procedural due process rights, is identical to other death row inmates who have never received any relief and have no imminent prospect of resentencing. Like the Williams plaintiffs, Porter has received relief—that relief is simply stayed pending appeal.
13

as described above, this was the Department’s argument for keeping the Williams plaintiffs on death row: the Department argued that it was not permitted to remove the plaintiffs from death row until their death sentences had “actually been modified,” which they had not, since it was possible that they would again receive the death penalty in their resentencing hearing. 949 F.3d at 557. We rejected that argument in Williams. Like the Williams plaintiffs, Porter could ultimately return to death row either as a result of his resentencing hearing or if the Third Circuit reverses the grant of habeas relief. A possible return to death row, therefore, does not distinguish Porter from Williams.
Nor can the difference be that Porter’s resentencing has been delayed while other litigation in his case remains pending, for that was also true of the Williams plaintiffs. Their resentencing hearings were delayed six and eight years respectively during their appeals. The Commonwealth is presented with the same prolonged uncertainty about Porter’s ultimate sentence that it experienced with the Williams plaintiffs. Nevertheless, extended delays and the attendant uncertainty do not justify Porter’s continued solitary confinement without review.
Nor have Defendants identified any penological need for solitary confinement for Porter or inmates in Porter’s position that do not apply to the Williams plaintiffs. In particular, the Commonwealth’s stated interest in keeping inmates with death sentences in solitary confinement because they pose an increased safety risk is as applicable to the Williams plaintiffs as to Porter. These inmates may or may not end up back on death row after resentencing and/or disposition of their appeals. If the possibility of death row means that they
14

have “nothing left to lose” and are therefore more dangerous, that concern was as true of the Williams plaintiffs. On the flip side, Porter is as likely as the Williams plaintiffs to be on good behavior since he could be resentenced to a lesser penalty.
Finally, to the extent that Defendants contend that Porter is responsible for the delays in his resentencing, we squarely rejected such an argument in Williams. There too the Commonwealth argued that, by filing their appeals, the plaintiffs were responsible for their continued incarceration on death row. We found this argument “both meritless and disappointing. Plaintiffs’ exercise of their rights to appellate review is simply irrelevant to our assessment of the constitutionality of their conditions of confinement.” Williams, 848 F.3d at 561 n.2. The same reasoning applies to Porter’s decision to exercise his state PCRA rights in state court. Porter’s exercise of his rights (and the Commonwealth’s exercise of its right to appeal) do not bear on our procedural due process analysis.
Our decision is thus a straightforward application of Williams. As in Williams, Defendants must provide Porter with “regular and meaningful review of [his] continued placement on death row,” including “a statement of reasons for the continued placement,” “meaningful opportunity to respond to the reasons provided,” and a hearing. Williams, 848 F.3d at 576 (emphasis omitted).4
4 Porter makes an alternative claim that, even if Williams does not apply, his individual term of solitary confinement constitutes an atypical and significant hardship that gives rise to a due process liberty interest regardless of the status of his death sentence. Because we conclude that
15

B. Eighth Amendment
Porter also argues that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to solitary confinement for thirty-three years. Notably, Porter is not making a broader claim that the conditions for all death row inmates violate the Eighth Amendment; he makes only an as-applied challenge based on his own conditions of confinement.5
The Magistrate Judge denied Porter’s Eighth Amendment claim on the ground that Porter had failed to establish that “both Defendants were individually aware that Porter suffered a substantial risk of harm and yet were deliberately indifferent.” Porter, 2018 WL 5846747, at *14. The Magistrate Judge found that Porter did not provide any
Williams squarely governs Porter’s case, we will not reach this argument.
5 Our dissenting colleague takes issue with Porter’s articulation of his Eighth Amendment claim and argues that Porter is not, in fact, making an as-applied challenge, but is rather repackaging his procedural due process claim. Dissenting Op. at 12. But Porter clearly articulated the duration and severity of his individual circumstances in solitary confinement in his complaint. Moreover, at the time of the drafting of the complaint, Porter was pro se, and “[t]he obligation to liberally construe a pro se litigant’s pleadings is well-established.” Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011). We are therefore unconvinced that his Eighth Amendment claim is “analytically identical to his procedural process claim.” Dissenting Op. at 13.
16

evidence of his “alleged mental decomposition” or that “either of the Defendants were aware that the care afforded or available was insufficient so as to place Porter at risk of further decline.” Id. We disagree.
To determine whether prison officials have violated the Eighth Amendment, we apply a two-prong test: (1) the deprivation must be “objectively, sufficiently serious; a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities”; and (2) the prison official must have been “deliberate[ly] indifferen[t] to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations and quotation marks omitted). An official is deliberately indifferent if he “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. Whether conditions constitute “cruel and unusual punishment” is measured against “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
1. Whether Porter’s Deprivations Were Sufficiently Serious
To satisfy the objective prong of this test “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting Farmer, 511 U.S. at 834). “The proof necessary to show that there was a substantial risk of harm is less demanding than the proof needed to show that there was a probable risk of harm.” Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 227 (3d Cir. 2015).
17

The Magistrate Judge did not apply the correct standard here. The Magistrate Judge decided that Porter failed to satisfy the objective prong in part because he did not offer evidence that he had experienced an actual injury. See Porter, 2018 WL 5846747, at *14 (“[N]owhere in the record before this Court has Porter provided any evidence whatsoever of his alleged mental decomposition.”). But an inmate need not provide evidence of actual injury. We have specifically held that the inmate need only offer evidence that there was a “substantial risk of serious harm.” Mammana, 934 F.3d at 373.
It is well established in both case law and scientific and medical research that prolonged solitary confinement, like that experienced by Porter, poses a substantial risk of serious psychological and physical harm:
A comprehensive meta-analysis of the existing literature on solitary confinement within and beyond the criminal justice setting found that “[t]he empirical record compels an unmistakable conclusion: this experience is psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term . . . damage.” Specifically, based on an examination of a representative sample of sensory deprivation studies, the researchers found that virtually everyone exposed to such conditions is affected in some way. They further explained that “[t]here is not a single study of solitary confinement wherein non-voluntary confinement that lasted for longer than 10 days failed to result in negative
18

psychological effects.” And as another researcher elaborated, “all [individuals subjected to solitary confinement] will . . . experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, and difficulty tolerating external stimuli.”

Anxiety and panic are common side effects.

Depression, post-traumatic stress disorder,

psychosis,

hallucinations,

paranoia,

claustrophobia, and suicidal ideation are also

frequent results. Additional studies included in

the aforementioned meta-analysis further

“underscored the importance of social contact

for the creation and maintenance of ‘self.’” In

other words, in the absence of interaction with

others, an individual’s very identity is at risk of

disintegration.

. . .

As if psychological damage was not enough, the impact of the deprivation does not always stop there. Physical harm can also result. Studies have documented high rates of suicide and selfmutilation amongst inmates who have been subjected to solitary confinement. These behaviors are believed to be maladaptive mechanisms for dealing with the psychological suffering that comes from isolation. In addition, the lack of opportunity for free movement is associated with more general physical

19

deterioration. The constellations of symptoms include dangerous weight loss, hypertension, and heart abnormalities, as well as the aggravation of pre-existing medical problems.
Williams, 848 F.3d at 566–68 (internal citations omitted) (alterations in original); see also Brief of Amici Curiae Professors and Practitioners of Psychiatry, Psychology, and Medicine at 1 (“[S]olitary confinement causes substantial harm to prisoners’ mental and physical health. For prisoners subject to extreme lengths of solitary confinement, such as Appellant Porter here, such harm is inevitable.”).
We have repeatedly recognized the severe effects of prolonged solitary confinement, as have our sister circuits and Justices of the Supreme Court. See Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (noting that a special assistant to the Secretary of the Pennsylvania DOC would be concerned about the psychological damage to an inmate after only 90 days of solitary confinement); Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (acknowledging the “robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement”); Porter v. Clarke, 923 F.3d 348, 355–56 (4th Cir. 2019) (holding that conditions on Virginia’s death row violated the Eighth Amendment and noting that “[i]n recent years, advances in our understanding of psychology and new empirical methods have allowed researchers to characterize and quantify the nature and severity of the adverse psychological effects attributable to prolonged placement of inmates in isolated conditions”); Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) (“[R]esearch still confirms what this Court suggested over a century ago: Years
20

on end of near-total isolation exact a terrible price.”); Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting) (reviewing literature and stating that “it is well documented that such prolonged solitary confinement produces numerous deleterious harms”). This consensus makes plain that a reasonable jury could conclude that thirty-three years in solitary confinement posed a substantial risk of harm to Porter.
Porter has also provided competent evidence that he has, in fact, experienced severe detrimental effects from his prolonged solitary confinement. In his sworn complaint, he stated that “the effects suffered from long-time solitary confinement, include, but are not limited to: severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication.” JA 41. We “consider as affidavits [Plaintiff’s] sworn verified complaints, to the extent that they are based upon personal knowledge and set out facts that would be admissible in evidence.” Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 100 n.1 (3d Cir. 2017) (citing Fed. R. Civ. P. 56(c)(4) & Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)). The verified complaint was part of the record before the Magistrate Judge; Defendants have acknowledged that the Magistrate Judge was obligated to consider the verified complaint in deciding the motions for summary judgment. See Oral Arg. Recording at 1:00:22-25. Porter thus provided sufficient evidence of both serious harm and the substantial risk of harm to survive summary judgment.6
6 In a post-oral argument 28(j) letter, Defendants have argued that Porter was required to present expert medical testimony to satisfy the objective prong of the Eighth Amendment test. They cite Pearson v. Prison Health Service,
21

Defendants’ arguments to the contrary are unavailing. Defendants rely primarily on our decision in Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) to argue that Porter’s solitary confinement does not give rise to an Eighth Amendment violation. In Peterkin, we held that a class of fifteen prisoners on death row in Pennsylvania “ha[d] not established that the totality of the conditions of their confinement constitutes cruel and unusual punishment.” Id. at 1022. Defendants argue that Peterkin controls this case.
We disagree. Although many of the current conditions in the CCU are the same as or similar to those at issue in Peterkin,7 there are key differences between the cases. First,
850 F.3d 526 (3d Cir. 2017), for this proposition. But Pearson was an adequacy of care case. We held that medical testimony may be necessary to satisfy the subjective prong of the Eighth Amendment test in such cases: “[W]e think that medical expert testimony may be necessary to establish deliberate indifference in an adequacy of care claim where, as laymen, the jury would not be in a position to determine that the particular treatment or diagnosis fell below a professional standard of care.” Id. at 536. This is not the situation here.
7 Death row inmates were housed at two facilities when Peterkin was decided. 855 F.2d at 1026. The conditions varied slightly at the two facilities. The conditions similar to Porter’s include: confinement in individual cells for approximately twenty-two hours a day; cells between sixty and seventy-one square feet; showers three times a week or on alternate days; telephone calls either once a week or once a month; noncontact visits once a week; work programs in the form of janitorial tasks on death row; access to educational materials in the cells
22

Porter is making an as-applied Eighth Amendment challenge to his specific conditions of confinement; in contrast, Peterkin was a class action making a facial challenge to death row conditions generally. Our decision in Porter’s case would not determine that the Commonwealth’s death row procedures and policies are facially unconstitutional. As Defendants acknowledged at oral argument, the fact that Peterkin was a facial challenge distinguishes the case. See Oral Arg. Recording at 58:48-52.8
only; access to medical and psychological professionals in the cells; and exercise either individually or with one companion in enclosed exercise spaces. Peterkin, 855 F.2d at 1026–29, 1031.
8 Our dissenting colleague disagrees that this posture distinguishes Porter’s case. Dissenting Op. at 14. For that proposition, he relies on Bucklew v. Precythe, 139 S. Ct. 1112 (2019), where the Supreme Court held that in all Eighth Amendment method-of-execution claims, including both facial challenges and as-applied challenges, a prisoner must show a feasible alternative method of execution. Rejecting Bucklew’s argument that he should not be required to show an alternative in an as-applied challenge, the Court stated that “classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding breadth of the remedy, but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Id. at 1127 (internal quotation marks omitted). The dissent seems to believe that we are relying on a different “substantive rule of law” in recognizing a distinction between Porter’s situation and that of the Peterkin class. Not so. In both cases, the Eighth Amendment standard
23

Second, Porter has spent substantially more time in solitary confinement on death row than the Peterkin plaintiffs. The maximum amount of time that any of the Peterkin plaintiffs had spent on death row at the time of the lawsuit was four years. Id. at 1029 (“The district court found that some of the prisoners had already been on death row for four years.”). Porter’s duration of confinement is more than eight times as long. Given the consensus in the research and caselaw that prolonged solitary confinement is highly detrimental to an inmate’s physical and mental health, that Porter has been in isolation for more than three decades sharply distinguishes the Eighth Amendment calculus here.
Third, and finally, the research and caselaw have advanced considerably since we decided Peterkin in 1988. See, e.g., Porter, 923 F.3d at 358–59 (clarifying that Porter does not overrule past precedent because it was decided on a different set of facts, including that the plaintiffs in Porter introduced expert reports detailing the risks of solitary confinement with studies that are more recent than those that were available in the prior case).
is the same: to satisfy the objective prong, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). While the class in Peterkin was not able to meet this standard based on the conditions that affected the class as a whole, Porter is able to meet this standard because of his particular circumstances. There is no difference in the substantive rule of law, only whether Porter has shown a deprivation in his particular case.
24

Because of these differences, Peterkin is not controlling here. Porter has been subjected to more than thirty-three years in solitary confinement. That extreme duration of solitary confinement has had severe detrimental impacts on Porter, impacts that track the robust and growing scientific and legal understanding of the harms of prolonged solitary confinement. Viewing Porter’s deprivations according to “contemporary standards of decency,” Estelle, 429 U.S. at 103, Porter has certainly provided enough evidence to survive summary judgment.
2. Whether Defendants Knew of and Disregarded the Risk to Porter
To satisfy the subjective prong of the Eighth Amendment test, an inmate must show that the prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Chavarriaga, 806 F.3d at 229 (quoting Farmer, 511 U.S. at 847) (quotation marks omitted). The inmate “may demonstrate deliberate indifference by showing that the risk of harm was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past such that defendants must have known about the risk.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir. 2010) (quoting Farmer, 511 U.S. at 842–43) (internal quotation marks omitted).9
9 Our dissenting colleague cites 61 Pa. Cons. Stat. § 4303 several times, including for the proposition that our “entire discussion of the subjective prong is ill-considered.” Dissenting Op. at 24. Under § 4303, the Pennsylvania Department of Corrections must keep an inmate sentenced to
25

Defendants have acknowledged the risks of prolonged solitary confinement. In a past case, Defendant Wetzel conceded that long-term solitary confinement poses serious risks: “Secretary Wetzel agreed that ‘long term’ solitary confinement ‘certainly could’ have negative effects on mental health and that Johnson’s thirty-six year confinement is ‘certainly’ considered long term. . . . Moreover, Secretary Wetzel stated that he is familiar with the work of Dr. Haney, which sets forth at length the harmful effects of solitary
death in solitary confinement until infliction of the death penalty or discharge “[u]pon receipt of the warrant.” 61 Pa. Cons. Stat. § 4303. The “warrant,” which is issued by the Governor, specifies a day for execution “which shall be no later than 60 days after the date the warrant is signed.” § 4302(a)(1). Once the warrant has expired, however, “it is entirely a matter of the Department’s discretion where to house an inmate.” Clark v. Beard, 918 A.2d 155, 160 (Pa. Commw. Ct. 2007). According to Department of Corrections’ website, the Governor of Pennsylvania has never issued an execution warrant for Porter. See Department of Corrections, Execution Warrants/Notices Issued by Governor (1985 to Present) https://www.cor.pa.gov/About%20Us/Initiatives/Documents/ Death%20Penalty/Warrants.pdf (last visited June 25, 2020). Moreover, at oral argument, Defendants conceded that if there is an execution warrant for Porter that is not listed, it is null because the sixty days have run. Oral Arg. Recording at 48:1646. The dissent’s statement that “the citizens of Pennsylvania . . . have determined that [Porter] must remain in solitary confinement while on death row” is simply incorrect. Dissenting Op. at 23–24. Porter remains in the CCU as a matter of the Department of Corrections’ discretion, not because of any statutory requirement.
26

confinement.” Johnson v. Wetzel, 209 F. Supp. 3d 766, 779 (M.D. Pa. 2016) (internal citation omitted). The record also reflects that Defendant Gilmore was aware that Porter had been in solitary confinement for more than three decades and was experiencing mental health problems: following our decision in Williams, Porter submitted a grievance and multiple appeals to the DOC, including to Defendant Gilmore. Moreover, the DOC’s representative in this case, Steven Glunt, testified in his deposition about “potential decomposition” that affects death row inmates as a result of prolonged solitary confinement:
[I]f you put [capital case inmates] in an environment where there’s not an opportunity to be interactive, stimulate their thought processes, to grow . . . they start to decompensate. And then that increases their risk of self harm. That increases their risk of hurting others. . . . [Decompensate means] a person who is either emotional, physically, or mentally starting to withdraw, and they’re starting to reduce their interaction with others. They’re starting to literally, from an emotional and intellectual standpoint, shut down.
JA 199–200.
Furthermore, the substantial risks of prolonged solitary confinement are “obvious,” “longstanding, pervasive, welldocumented, [and] expressly noted by prison officials in the past.” Farmer, 511 U.S. at 842 (holding that a factfinder can conclude that a prison official was aware of a serious risk if the risk was obvious). As we have emphasized, a wide range of researchers and courts have repeatedly described the serious
27

risks associated with solitary confinement. Moreover, correctional officers have publicly acknowledged these harms. As Porter highlights, Defendant Wetzel is the president of the Association of State Correctional Administrators (“ASCA”), which has published reports about efforts to limit solitary confinement.10
Finally, that DOC policies specifically recognize the mental health risks posed by solitary confinement supports Porter’s argument that Defendants were deliberately indifferent. In the section on administrative custody (“AC”), the policies state: “If the inmate has a mental illness, the PRC [Program Review Committee] should explore the feasibility of
10 See Association of State Correctional Administrators, Committees, https://www.asca.net/committees (last visited Nov. 14, 2019); ASCA and Liman Center Release Two New Reports on Solitary Confinement, Yale Law School (Oct. 10, 2018), https://law.yale.edu/yls-today/news/asca-and-limancenter-release-two-new-reports-solitary-confinement; Association of State Correctional Administrators & The Liman Center for Public Interest Law, Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Timein-Cell, Yale Law School (Sept. 25, 2018), https://law.yale.edu/sites/default/files/documents/pdf/Liman/a sca_liman_2018_restrictive_housing_revised_sept_25_2018_ -_embargoed_unt.pdf; Association of State Correctional Administrators & The Liman Center for Public Interest Law, Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (Sept. 25, 2018), https://law.yale.edu/sites/default/files/documents/pdf/Liman/a sca_liman_2018_workingtolimit.pdf.
28

placing him/her into [other treatment units] as an alternative . . . .” JA 101. “A qualified psychologist or psychiatrist shall personally interview and conduct an assessment of any inmate remaining in AC status for more than 30 calendar days. If the inmate’s confinement continues for more than 30 calendar days, a mental health assessment shall be completed at least every 90 calendar days.” JA 106 (emphases omitted). As Glunt describes, staff working in the CCU are trained with “more advanced mental-health observation,” including how to recognize symptoms of decompensation. JA 223. The DOC has thus openly recognized the substantial risk of serious mental harm that prolonged solitary confinement poses.11
In evaluating the subjective prong of the Eighth Amendment test, we may also consider whether officials “had a legitimate penological purpose” behind their conduct. Ricks v. Shover, 891 F.3d 468, 475 (3d Cir. 2018); see also Wood v. Beauclair, 692 F.3d 1041, 1050 (9th Cir. 2012). The Eighth Amendment prohibits punishments without penological justification. See Hope v. Pelzer, 536 U.S. 730, 737 (2002). As a defense to Porter’s Eighth Amendment claim, Defendants argue that they have a legitimate penological justification for keeping him in indefinite solitary confinement. Specifically,
11 At oral argument, Defendants maintained that they were not deliberately indifferent because they provided enhanced mental health services to CCU inmates. See Oral Arg. Recording at 1:06:39-53. But the question in this case is not whether the mental health care afforded to Porter was constitutionally inadequate. A reasonable jury could conclude that Defendants have been deliberately indifferent to the substantial risk of serious harm by leaving Porter in solitary for more than thirty-three years.
29

Defendants argue that they keep inmates like Porter in solitary because capital inmates have “nothing left to lose.” Answering Br. 27. However, Defendants have not offered any evidence about the risk that Porter specifically poses, or any individualized argument about Porter at all. Moreover, the DOC witness acknowledged in his deposition that the “nothing left to lose” argument is not entirely accurate; he testified that death row inmates like Porter have privileges that can be taken from them if they break any rules. It is also undisputed that Porter has not had any disciplinary infractions during his lengthy incarceration. We therefore do not find Defendants’ argument on this point convincing.
In conclusion, we hold that a reasonable jury could find that Defendants know that prolonged solitary confinement has serious detrimental health impacts, but that they have disregarded the risk in Porter’s case by leaving him in isolation for more than thirty-three years.12
12 It scarcely needs saying that, in reaching this conclusion we do not “create[] for death-row prisoners like Porter a brand-new constitutional right to escape solitary confinement,” as our dissenting colleague claims. Dissenting Op. at 8. To the contrary, our conclusion is based on: (1) our well-established case law stating that the standard for satisfying the objective prong of the Eighth Amendment is a substantial risk of serious harm; (2) the well-documented and oft-cited body of research and law recognizing the substantial risk posed by solitary confinement of such an extreme duration; (3) Porter’s own articulation of the harm that he has experienced; and (4) Defendants’ own recognition of the substantial risks that prolonged solitary confinement like that experienced by Porter poses. We do not hold that all inmates
30

C. Substantive Due Process
Porter also argues that Defendants have violated his substantive due process rights under the Fourteenth Amendment. We hold that Porter’s substantive due process claim is barred under the more-specific-provision rule and affirm the District Court’s grant of summary judgment on this claim.
The substantive component of the Due Process Clause “protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir. 2016) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992)). “[T]he substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that ‘shocks the conscience.’” Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (citation omitted).
Porter argues that his thirty-three year solitary confinement is conscience-shocking because Defendants have subjected him to “extreme social isolation” even though he has a perfect disciplinary record and they are aware of the psychological and physical consequences of prolonged isolation. Defendants argue that Porter cannot bring a separate substantive due process claim because his Eighth Amendment claim covers the same allegations under the more-specificprovision rule.
in solitary confinement or on death row have been subjected to an Eighth Amendment violation.
31

We agree with Defendants. The Supreme Court “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins, 503 U.S. at 125. Under the more-specific-provision rule, “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). As the Supreme Court explained in Whitley v. Albers, 475 U.S. 312, 327 (1986):
[T]he Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, “conduct that shocks the conscience” or “afford[s] brutality the cloak of law,” and so violates the Fourteenth Amendment, were not also punishment “inconsistent with contemporary standards of decency” and “repugnant to the conscience of mankind,” in violation of the Eighth . . . . [I]n these circumstances the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause.
Id. at 327 (internal citations omitted).
32

We first applied the more-specific-provision rule in Betts, 621 F.3d at 260. There, the plaintiff alleged that prison officials violated his Eighth Amendment and substantive due process rights by permitting him to play tackle football without protective equipment. We noted that the plaintiff failed to “cite any case law for the proposition that he may bring both substantive due process and Eighth Amendment claims challenging the same conduct” and that his claims about his conditions of confinement and the officials’ failure to ensure his safety “fit squarely within the Eighth Amendment’s prohibition on cruel and unusual punishment.” Id. at 261; see also Wharton v. Danberg, 854 F.3d 234, 246 (3d Cir. 2017) (affirming district court’s dismissal of substantive due process claims that were parallel to Eighth Amendment claims under the more-specific-provision rule).
Porter submits that the claims are distinct because on his substantive due process claim, he is arguing that Defendants “have violated that constitutional right by engaging in conduct that shocks the conscience irrespective of any procedural safeguards, unreasonable risk, or penological purpose.” Opening Br. 46–47. But we do not see a distinction here. As in Betts, Porter’s substantive due process claim challenges the same conduct as his Eighth Amendment claim, namely, his prolonged solitary confinement. There are no distinct facts that apply only to his substantive due process claim. We therefore affirm the Magistrate Judge’s grant of summary judgment on Porter’s substantive due process claim.
33

D. Qualified Immunity
Finally, we must decide whether Defendants have qualified immunity from Porter’s constitutional claims.13 Because the Magistrate Judge found that Defendants did not violate Porter’s constitutional rights, she did not reach this affirmative defense. Since we disagree with the Magistrate Judge on the procedural due process and Eighth Amendment claims we will do so. See Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir. 2001) (“We may affirm a judgment on any ground apparent from the record, even if the district court did not reach it.”).
We apply a two-part test to qualified immunity defenses: “We first determine whether a right has been violated. If it has, we then must decide if the right at issue was clearly established when violated such that it would have been clear to a reasonable person that her conduct was unlawful.” Williams, 848 F.3d at 557. To determine whether the right was clearly established, the inquiry “must be undertaken in light of the specific context of the case, not as a broad general
13 Porter contends that Defendants have arguably waived the defense of qualified immunity on his Eighth Amendment claims because they did not raise it in their motion for summary judgment. We disagree. Defendants did properly raise qualified immunity as a defense in their Answer to Porter’s Complaint and in their Response to Porter’s Motion for Summary Judgment on his procedural due process claim. Their Response to Porter’s Motion for Summary Judgment did not need to include qualified immunity with respect to the Eighth Amendment because Porter did not move for summary judgment on this claim.
34

proposition. . . .” Saucier v. Katz, 533 U.S. 194, 201–02 (2001) (receded from on other grounds by Pearson, 555 U.S. 223). In some cases, “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.” Hope, 536 U.S. at 741 (2002) (quoting Lanier, 520 U.S. at 271) (brackets in original) (internal quotation marks and citation omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances” as long as the law gives the officials “fair warning” that their treatment of the inmate is unconstitutional. Id.
We look to the Supreme Court, our Circuit, and our sister circuits to determine whether a right is clearly established:
In conducting the inquiry into whether a right is clearly established, we look first for applicable Supreme Court precedent. If none exists, we consider whether there is a case of controlling authority in our jurisdiction or a robust consensus of cases of persuasive authority in the Courts of Appeals that could clearly establish a right for purposes of qualified immunity.
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (internal citations, quotation marks, and alterations omitted).
35

1. Porter’s Procedural Due Process Claim
Because Porter’s procedural due process rights have been clearly established since we decided Williams in 2017, Defendants are not entitled to qualified immunity on this claim. In Williams, we explicitly stated:
Our holding today that Plaintiffs had a protected liberty interest provides “fair and clear warning” that, despite our ruling against Plaintiffs, qualified immunity will not bar such claims in the future. As we have explained, scientific research and the evolving jurisprudence has made the harms of solitary confinement clear: Mental well-being and one’s sense of self are at risk. We can think of few values more worthy of constitutional protection than these core facets of human dignity.
848 F.3d at 574 (quoting Lanier, 520 U.S.at 271).
We were not alone in reaching this conclusion. See Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017) (holding that inmate who had been in administrative segregation for over ten years had a due process liberty interest in avoiding continued isolation); Incumaa v. Stirling, 791 F.3d 517, 531–32 (4th Cir. 2015) (holding that an inmate who spent twenty years in solitary confinement had a due process liberty interest in avoiding solitary confinement); Wilkerson v. Goodwin, 774 F.3d 845, 857–58 (5th Cir. 2014) (denying a qualified immunity defense to prison officials on a procedural due process claim brought by an inmate who had been in solitary confinement for thirty-nine years and stating that “no
36

reasonable prison official could conclude that continuing four decades in indefinite solitary confinement would not implicate a liberty interest protected by due process”); Brown v. Ore. Dep’t of Corrs., 751 F.3d 983, 987–88 (9th Cir. 2014) (holding that an inmate who spent twenty-seven months in solitary confinement had a due process liberty interest in avoiding further solitary confinement); Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (holding that an inmate who spent thirteen years in solitary confinement had a due process liberty interest); Magluta v. Samples, 375 F.3d 1269, 1277–80 (11th Cir. 2004) (holding that an inmate who spent more than five hundred days in solitary confinement stated a claim for a procedural due process violation); Hanrahan v. Doling, 331 F.3d 93, 99 (2d Cir. 2003) (affirming the denial of qualified immunity to prison officials on a procedural due process claim brought by an inmate who had been sentenced to solitary confinement for ten years); Colon v. Howard, 215 F.3d 227, 231–32 (2d Cir. 2000) (holding that solitary confinement for 305 days gave rise to a due process liberty interest).
There is therefore wide consensus that prolonged and indefinite solitary confinement gives rise to a due process liberty interest for inmates in Porter’s circumstances. These cases gave Defendants “fair warning” that keeping an inmate who has been in solitary confinement for thirty-three years on death row while appeals of his vacatur order proceed violates his procedural due process rights. Defendants therefore are not entitled to qualified immunity as of our decision in Williams.
2. Porter’s Eighth Amendment Claim
On Porter’s Eighth Amendment claim, however, we reach a different conclusion. Unlike his procedural due
37

process rights, Porter’s Eighth Amendment right has not been clearly established. Porter has correctly pointed out that our Circuit and our sister circuits have held that inmates can bring Eighth Amendment claims based (at least in part) on conditions in solitary confinement. But only one circuit has done so in connection with solitary confinement on death row. 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. In Williams, for example, we considered whether our decision in Shoats, 213 F.3d 140, was sufficiently similar to the facts and claims raised by the Williams plaintiffs. We decided that, although Shoats is analogous and should have “raised concerns” about whether the treatment of the Williams plaintiffs was constitutional, it was not sufficiently similar because Shoats was not on death row and did not directly dispute the death row isolation policy at issue in Williams. See Williams, 848 F.3d at 572.
We have not found Eighth Amendment cases with sufficiently similar fact patterns, and the cases that Porter cites in support of his argument are inapposite. In particular, Porter’s reliance on Palakovic, 854 F.3d 209 is unavailing. In that case, the plaintiff had committed suicide in solitary confinement. He was not on death row. The plaintiff’s family alleged that he had preexisting serious mental health problems that the prison had diagnosed. Even so, prison officials repeatedly placed him in solitary confinement. Considering the plaintiff’s particular vulnerability in light of the known dangers of solitary confinement, we held that the plaintiff had stated an Eighth Amendment claim. Id. at 225–26. Although the Palakovic decision certainly acknowledges the dangers of solitary confinement, that the plaintiff was not on death row and had specific known mental health issues pre-assignment to
38

solitary confinement distinguishes Palakovic from Porter’s case.
We similarly find Porter’s reference to Allah v. Bartkowski, 574 F. App’x 135 (3d Cir. 2014) (unpublished), unconvincing. Aside from the not precedential status of Allah, which renders it useless as precedent, that case focused on sleep deprivation and unsanitary conditions in solitary confinement, neither of which are at issue in Porter’s case. Id. at 138–39. Nor are the cases Porter cites from other circuits sufficiently on point. They do not concern death row and, in each case, the inmate made specific allegations in addition to placement in solitary confinement that gave rise to a potential Eighth Amendment violation. See Rice ex rel. Rice v. Corr. Med. Srvs., 675 F.3d 650, 666–67 (7th Cir. 2012) (noting in dicta that the court has previously recognized that prolonged confinement in solitary may constitute a violation of the Eighth Amendment depending on duration, nature and need for the confinement, but dismissing the Eighth Amendment claim in the case and noting that past cases involved other deprivations in addition to confinement in solitary); Fogle v. Pierson, 435 F.3d 1252, 1259–60 (10th Cir. 2006) (holding that an inmate in administrative segregation made an arguable Eighth Amendment claim when he alleged that he was denied outdoor exercise for three years); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (an inmate in solitary confinement stated a claim for an Eighth Amendment violation based on his allegations that he was subjected to a lack of outdoor exercise, constant loud noise, bad ventilation, constant illumination, poor sanitation, and spoiled food and foul water); Walker v. Shansky, 28 F.3d 666, 672–73 (7th Cir. 1994) (holding that a jury could conclude that the plaintiff’s prolonged solitary confinement together with his other allegations of deprivations
39

and abuse, including denial of water for up to a week, repeated physical abuse, and denial of sufficient exercise time, violated the Eighth Amendment); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) (holding that an inmate made an Eighth Amendment claim based on a five day stay in a strip cell, but focusing on the fact that the cell was in continuous darkness and the inmate was unable to maintain his personal cleanliness).
The Fourth Circuit has held that solitary confinement conditions on death row violate the Eighth Amendment. Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). But a single out-of-circuit case is insufficient to clearly establish a right. Defendants are therefore entitled to qualified immunity on Porter’s Eighth Amendment claim.
We emphasize, however, that from this point forward, it is well-established in our Circuit that such prolonged solitary confinement satisfies the objective prong of the Eighth Amendment test and may give rise to an Eighth Amendment claim, particularly where, as here, Defendants have failed to provide any meaningful penological justification.
IV. CONCLUSION
For the foregoing reasons, we will reverse and remand in part and affirm in part. We reverse the Magistrate Judge’s grant of summary judgment to Defendants on Porter’s procedural due process claim. We affirm the grant of summary judgment to Defendants on Porter’s Eighth Amendment claim, but on the ground that Defendants are entitled to qualified immunity because the right was not clearly established. We affirm the grant of summary judgment to Defendants on
40

Porter’s substantive due process claim. Finally, we remand to the District Court to determine damages and declaratory and injunctive relief.14
14 Defendants argue that Porter’s requests for equitable relief are moot and/or abandoned. We disagree. Since the “effects of the alleged violation” have not been “completely eradicated,” the claims are not moot. Burns v. PA Dep’t of Corrs., 544 F.3d 279, 283 (3d Cir. 2008) (quotation marks omitted). Nor has Porter abandoned the claims. Porter requested declaratory and injunctive relief in his Complaint. Defendants recognized that he was seeking injunctive relief in their motion for summary judgment. See Porter v. Penn. Dep’t of Corrs., 2:17-cv-763, Doc. 53, at 2 (“As relief, Porter is requesting that he be released from the CCU and placed in a General Population housing unit.”). Likewise, the Magistrate Judge recognized that Porter was requesting equitable relief. See Porter, 2018 WL 5846747, at *5 (“Porter seeks declaratory relief.”). Defendants have not pointed to any evidence that Porter has changed his originally requested relief.
41

PORTER, Circuit Judge, concurring in part and dissenting in part.
The majority incorrectly holds that Porter’s solitary confinement violates his procedural due process rights. To reach that conclusion, the majority must shoehorn this case into the non-analogous holding of Williams v. Secretary Pennsylvania Department of Corrections, 848 F.3d 549 (3d Cir. 2017). It accomplishes that only by ignoring Supreme Court precedent describing the nature of a judicial stay. The majority then strides into constitutional territory that the Supreme Court and our Court have assiduously avoided— holding that Defendants likely violated the Eighth Amendment by keeping Porter in solitary confinement. For these and other reasons, I respectfully dissent in part.
I concur in part because I agree with the majority that Porter’s substantive due process claim is barred by the morespecific-provision rule. See Maj. Op. 31–33. Assuming for the sake of argument that Porter’s Eighth Amendment rights were violated, I also agree that Defendants are entitled to qualified immunity.
I
On April 27, 1986, Theodore Wilson a.k.a. Ernest Porter1 robbed, shot, and killed Raymond Fiss at Fiss’s Philadelphia beauty shop. Commonwealth v. Porter, 569 A.2d 942, 944 (Pa. 2012). A Pennsylvania jury convicted Porter of first-degree murder, robbery, and possessing a firearm. Id. at 943. The jury then sentenced Porter to death. Id. In accordance with state law, he was placed in solitary confinement. See 61 Pa. Cons. Stat. § 4303.2
The Supreme Court of Pennsylvania affirmed Porter’s conviction and sentence. It also denied his two subsequent petitions for post-conviction relief. See Commonwealth v.
1 State and federal courts have used Wilson’s alias throughout all proceedings, and we follow suit. See Porter v. Horn, 276 F. Supp. 2d 278, 288 n.1 (E.D. Pa. 2003). 2 The predecessor statute to 61 Pa. Cons. Stat. § 4303 was 61 Pa. Stat. § 3003.
1

Porter, 728 A.2d 890, 893 (Pa. 1999); Commonwealth v. Porter, 35 A.3d 4, 6 (Pa. 2012).
In 2000, Porter filed a petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania. On June 26, 2003, the District Court granted relief with respect to Porter’s death sentence but denied the petition in all other respects. Porter v. Horn, 276 F. Supp. 2d 278, 288 (E.D. Pa. 2003). Porter and the government both appealed, triggering an automatic stay of the District Court’s order vacating Porter’s death sentence. See E.D. Pa. L.R. 9.4(12) (requiring the District Court, after granting a certificate of appealability in a habeas proceeding, to “grant a stay pending disposition of the appeal”). Seventeen years later, at Porter’s request, his habeas appeal remains pending in abeyance before this Court. So he has continued to live in solitary confinement.
Porter commenced this action in 2017, alleging violations of three constitutional protections: (1) his procedural due process rights under the Fourteenth Amendment; (2) his substantive due process rights under the Fourteenth Amendment; and (3) his right to be free from cruel and unusual punishment under the Eighth Amendment. The parties filed cross-motions for summary judgment, and the District Court— correctly in my view—granted Defendants’ motion on all three claims.
II
The majority holds that Pennsylvania has violated Porter’s procedural due process right to avoid continued solitary confinement. That holding turns on the majority’s insistence that “Williams governs Porter’s procedural due process claim.” Maj. Op. 10. But by its own terms, Williams does not apply to this case. And without Williams, Porter’s alleged protected liberty interest and procedural due process claim have no legal support.
In Williams, the plaintiffs were two Pennsylvania deathrow inmates who were kept in solitary confinement by prison officials for six and eight years, respectively, after their death sentences were vacated. 848 F.3d at 554. The fact that the inmates remained in solitary confinement long after their death
2

sentences had been vacated is central to Williams’s holding,3 and it permeates the entire opinion: Twenty-eight times we carefully noted that the inmates were kept in solitary confinement after their death sentences had been vacated.
In the section of Williams concluding that the inmates had a protected liberty interest, we emphasized that they remained in solitary confinement on death row for years “after the initial justification for subjecting them to such extreme deprivation (their death sentences) ceased to exist.” Id. at 561 (emphasis added). Focusing on the indefinite nature of their solitary confinement, we said that their “confinement on death row after their death sentences were vacated continued for years with no ascertainable date for their release into the general population.” Id. at 562 (emphasis added). And contrasting the plaintiffs with other inmates who were moved into and out of administrative segregation for behavioral reasons, we observed that they “would still have been relegated to death row indefinitely even though they had won new sentencing proceedings and were not under active sentences of death.” Id. (emphasis added).
In another section of Williams, we distinguished cases holding that capital murder inmates do not have a liberty interest that precludes confinement on death row without regular review because “those inmates were all confined pursuant to death sentences that had not been vacated.” Id. at 569 (emphasis in original) (distinguishing Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015); Smith v. Coughlin, 748 F.2d 783 (2d Cir. 1984); and Parker v. Cook, 642 F.2d 865 (5th Cir. 1981)). “Accordingly,” we explained, “confinement on death row was not a significant or atypical hardship for them. Rather, it was expressly within the ‘expected perimeters of the sentence imposed.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 485 (1995)). Because the Williams plaintiffs’ death sentences had been vacated, their liberty interests were “not
3 See Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 570 (3d Cir. 2017) (“For the reasons we have discussed, we now hold that Plaintiffs had a due process liberty interest in avoiding the extreme sensory deprivation and isolation endemic in confinement on death row after their death sentences had been vacated.” (emphasis added)).
3

comparable to those of inmates with active death sentences that arguably require continued placement on death row.” Id. But if the fact of an active death sentence is what distinguished Williams from Prieto, Smith, and Parker, then it also distinguishes Porter’s case from Williams.
Finally, in order to dispel any possible ambiguity we explicitly cabined Williams’s holding by refusing to extend it to “inmates whose death sentences are still active and viable.” Id. at 552 n.2. That is, inmates like Porter.
A
I belabor this point because Porter’s solitary confinement (unlike the plaintiffs in Williams, but exactly like the capital murder inmates in Prieto, Smith, and Parker) is required by his still-active death sentence. As we noted in Williams, when a defendant is sentenced to death and the Governor issues a warrant for execution, the Department of Corrections “shall, until infliction of the death penalty or until lawful discharge from custody, keep the inmate in solitary confinement.” 61 Pa. Cons. Stat. § 4303; see Williams, 848 F.3d at 554. That is, Pennsylvania’s Prisons and Parole Code requires inmates with active death sentences to remain in solitary confinement until execution or lawful discharge from custody, which “would occur when the inmate’s conviction is overturned or pardoned.” Clark v. Beard, 918 A.2d 155, 160 (Pa. Commw. Ct. 2007). Porter has not been executed or lawfully discharged from custody. So his solitary confinement is not a significant or atypical hardship but fits squarely within the “expected perimeters of the sentence imposed.” Williams, 848 F.3d at 569.
B
The majority attempts to fit this case into Williams’s holding by asserting that “Porter’s circumstances are analogous to those of the Williams plaintiffs.” Maj. Op. 11. In fact, Porter’s case differs from Williams on precisely the ground that that we took such pains to emphasize in Williams: He still has an active death sentence.
Porter’s death sentence remains active because the habeas court’s vacatur order was immediately stayed,
4

preserving the status quo. The majority brushes that aside, declaring that the stay “does not mean that the [vacatur] order has no legal import or that Porter currently has a viable death sentence.” Maj. Op. 11. This is pure ipse dixit, and it is incorrect.
In Nken v. Holder, 556 U.S. 418 (2009), the Supreme Court described the nature and effect of a stay. As the Court explained, a stay is not a vague, legally meaningless pause in a judicial proceeding. For as long as the stay is in effect it “suspend[s] the source of authority to act—the order or judgment in question[.]” Id. at 428–29. Although a stay is functionally similar to an injunction, they “serve different purposes” and are analytically distinct in this important respect: The injunction operates in personam, telling a particular actor what it may or may not do; conversely, the stay “operates upon the judicial proceeding itself” and prevents “judicial alteration of the status quo.” Id.
Here, the status quo that would have been judicially altered by the habeas court’s vacatur order was Porter’s active death sentence. But because the stay of that order “suspend[ed] judicial alteration of the status quo,” see id. at 429 (citation omitted), Porter’s death sentence was undisturbed and remains in place, uninterrupted, to this day.
This explication of Nken’s teaching about stays is utterly conventional. Following Nken, other circuit courts have similarly described stays as “preserv[ing] the status quo,” Al Otro Lado v. Wolf, 945 F.3d 1223, 1224 (9th Cir. 2019), “suspend[ing] judicial alteration of the status quo,” Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (citing Nken, 556 U.S. at 429), and “void[ing] any legal effect from the stayed judgment,” Sanofi-Aventis U.S. LLC v. Sandoz, Inc., No. 20091427, 2009-1444, 2009 WL 7365766, at *2 (Fed. Cir. Aug. 13, 2009) (Moore, J., concurring in the denial of reconsideration) (referencing Nken). The majority’s assertion that the habeas court’s stay of the vacatur order accomplished nothing, and that Porter’s death sentence was actually vacated, is unprecedented and flies directly in the face of Nken.4 The
4 The majority’s unconventional stay doctrine also threatens to destabilize the appellate process and our local practice. See
5

critical distinction between Williams and this case cannot be evaded by pretending that the stay of the vacatur order was a legal nullity.
III
Porter argues in the alternative that even if Williams does not apply, his solitary confinement is an atypical and significant hardship that creates a due process liberty interest. Because the majority holds that Nken does not apply and so Williams does, it declined to address this argument. Maj. Op. 15 n.4. But Porter’s constitutional-liberty-interest argument is also a non-starter.
“The Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin, 515 U.S. at 480 (internal quotation marks and citation omitted). Therefore, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976). So the baseline for a prisoner’s allegation of atypical and significant hardship “is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Powell v. Weiss, 757 F.3d 338, 344 (3d Cir. 2014) (citation omitted).
In Sandin, the plaintiff challenging his solitary confinement did not have a protected liberty interest because his detention in a segregated unit “did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.” Sandin, 515 U.S. at 486. But inmates in longterm solitary confinement may have a protected liberty interest if they can show that, but for the discretionary decisions of
Fed. R. App. P. 8, 41(d); 3d Cir. L.A.R. 8.0, 18.0, 110.1, 111.4, 111.7 (2011). And it invites mischief in proceedings that routinely employ stays. See e.g., 8 U.S.C. § 1252(f)(2) (immigration); 9 U.S.C. § 3 (arbitration); 11 U.S.C. § 362 (bankruptcy).
6

prison administrators, they would be in the general prison population. Shoats v. Horn, 213 F.3d 140, 143–44 (3d Cir. 2000). Their solitary confinement is thus “atypical” in relation to the ordinary incidents of prison life and differs significantly from “routine” prison conditions in Pennsylvania prisons. Id. at 144; see also Williams, 848 F.3d at 561 (noting that prison administrators continued plaintiffs’ assignment on death row “after the initial justification for subjecting them to such extreme deprivation (their death sentences) ceased to exist”); see also Wilkinson v. Austin, 545 U.S. 209, 217 (2005) (explaining that plaintiffs were assigned to Ohio’s Supermax facility upon the discretionary recommendation of a threemember committee, approved by prison warden and the Bureau of Classification, a body of “prison officials vested with final decisionmaking authority over all Ohio inmate assignments”).
Porter does not fit within the category of prisoners described in Shoats, Williams, or Wilkinson because his solitary confinement was not discretionary. His death sentence carries with it the statutory requirement that he remain in solitary confinement until execution or discharge from custody. Because solitary confinement is “within the sentence imposed[,]” it is not atypical but exactly what Porter could reasonably expect as a result of his death sentence. See Sandin, 515 U.S. at 480 (citation omitted).
The majority contends that sixty days after the issuance of Porter’s execution warrant, his housing status was left entirely to the discretion of Pennsylvania’s Department of Corrections. Maj. Op. 25 n.9. That is not what the statute says. Pennsylvania law provides that within ninety days after a death sentence has been transmitted to the governor, he shall issue an execution warrant. 61 Pa. Cons. Stat. § 4302(a)(1). “Upon receipt of the warrant, the secretary shall, until infliction of the death penalty or until lawful discharge from custody, keep the inmate in solitary confinement.” 61 Pa. Cons Stat. § 4303. These unambiguous statutory requirements are mandatory; they confer no discretion upon the Department of Corrections either before or after the expiration of sixty days.
The Commonwealth Court’s decision in Clark emphasizes this point. In that case, the court specifically
7

rejected the argument that “an inmate convicted of capital crimes [c]ould be moved back and forth between the general population and the Capital Case Unit, depending upon the status of his execution warrant[.]” 918 A.2d at 161. Although the execution warrant “is the trigger for moving an inmate to the Capital Case Unit” in the first instance, his continued stay in solitary confinement is required by statute, not the status of the warrant, “which might be signed several times over the course of [the] inmate’s post-conviction appeals.” Id. The Department has discretion “where to house” the deathsentenced inmate, but it does not have discretion to remove him from the Capital Case Unit altogether. Id. at 160. To the contrary, § 4303 specifically prohibits the Department from exercising the type of discretion suggested by the majority: “Once the governor signed an execution warrant for [Porter], the Department was compelled by [§ 4303] to remove [him] from the general population.” Id. at 161; see also Lopez v. Pa. Dep’t of Corr., 119 A.3d 1081, 1089 (Pa. Commw. Ct. 2015) (“[B]ecause the Legislature has specifically provided that a capital case prisoner shall be kept in solitary confinement until the execution of the death penalty or the inmate’s lawful discharge from custody pursuant to section 4303 of the Prisons and Parole code, DOC is required to keep [the inmate] in solitary confinement.”).
IV
The majority also creates for death-row prisoners like Porter a brand-new constitutional right to escape solitary confinement. In fashioning this new right, it precipitately veers into Eighth Amendment territory that we and the Supreme Court have avoided to date. Moreover, the majority’s holding on Porter’s Eighth Amendment claim is tantamount to a panel reversal of our precedential opinion in Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988).
A
The majority applies the conditions-of-confinement standard to Porter’s Eighth Amendment claim, concluding that he has satisfied both its objective and subjective prongs. Maj. Op. 17. But there are two problems with the majority’s analysis. First, Porter’s claim does not satisfy the objective
8

prong. Second, his attack on a statutorily required punishment cannot meaningfully be analyzed under the subjective prong.
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. It applies to the States through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 675 (1962) (Douglas, J., concurring) (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947)). In the mid-twentieth century, the Court grafted its “evolving standards of decency standard” from death-penalty cases onto “deprivations that were not specifically part of the sentence but were suffered during imprisonment.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (describing Estelle v. Gamble, 429 U.S. 97 (1976)).
To succeed on a conditions-of-confinement claim, a prisoner must show that the conditions involve the “unnecessary and wanton infliction of pain.” Id. (citation and emphasis omitted). We analyze a conditions-of-confinement claim using objective and subjective prongs. Id. at 298. The objective prong considers whether a punishment contravenes “the evolving standards of decency that mark the progress of a maturing society[.]” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).
Under the objective prong, a condition of confinement (or a combination of conditions) must produce “the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Wilson, 501 U.S. at 304. Other basic human needs identified by the Supreme Court include “shelter, medical care, and reasonable safety.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted) (noting that prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care,” and that they are reasonably safe). The deprivation must be “sufficiently serious” and “must result in the denial of ‘the minimal civilized measure of life’s necessities[.]’” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 298, and Rhodes, 452 U.S. at 347).
9

Porter does not identify the deprivation of any basic human need recognized by the Supreme Court. As the majority observes, Porter averred that he has experienced “severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication.” Maj. Op. 21 (quoting JA 41). In his brief, Porter characterizes the “single, identifiable human need” denied to him as “physical or psychological health, social interaction, or environmental stimulation.” Appellant’s Br. at 32. And the majority summarizes dicta from Williams and other cases describing a purportedly robust scientific consensus pointing to a substantial risk of psychological harm caused by solitary confinement. Maj. Op. 18–21.
From these allegations and dicta, the majority concludes that Porter has satisfied the objective prong of his conditionsof-confinement claim. Maj. Op. 21.5 But the Supreme Court has not recognized psychological health, social interaction, or environmental stimulation as basic human needs in the Eighth Amendment context. Neither have we.
We have, however, rejected a virtually identical Eighth Amendment challenge to the conditions of confinement on Pennsylvania’s death row. In Peterkin, we held that the totality of conditions experienced by death row prisoners—isolation for twenty-two hours per day in cells measuring between sixty and seventy-one square feet, allegedly causing psychological and physical deterioration without penological justification—
5 The majority also quotes Justice Kennedy’s concurring opinion in Davis v. Ayala, 135 S. Ct. 2187, 2208–10 (2015), and Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015). See Maj. Op. 20–21. To these, the majority could have added Justice Breyer’s opinions regarding denial of certiorari in Jordan v. Mississippi, 138 S. Ct. 2567 (2018), and Ruiz v. Texas, 137 S. Ct. 1246 (2017), and Justice Sotomayor’s statement respecting the denial of certiorari in Apodaca v. Raemisch, 139 S. Ct. 5 (2018). But those impassioned dissents and statements do not support the majority’s objective prong analysis. If anything, they underscore the Supreme Court’s long-standing and apparently determined refusal to expand the Eighth Amendment as the majority does here.
10

“does not contravene the [E]ighth [A]mendment.” 855 F.2d at 1032. In reaching that conclusion, we emphasized:
The primary responsibility for operating prisons belongs to prison administrators, to other state law enforcement officials and to the state legislature. The [E]ighth [A]mendment does not authorize a federal court to second guess their decisions nor is it our role to express our agreement or disagreement with their overall policies or theories of prison administration, as long as we find no constitutional violation.
Id. at 1032–33 (citation omitted). Peterkin remains binding precedent,6 and as I explain below the majority’s attempt to distinguish it is deeply unpersuasive. The result is a sub silento panel reversal.
6 Peterkin fits comfortably within a long line of our cases rejecting Eighth Amendment challenges to the use of solitary confinement in various contexts. See, e.g., Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (no Eighth Amendment violation when prisoner’s administrative segregation was not accompanied by the denial of basic human needs, such as food, clothing, shelter, sanitation, medical care, or personal safety); Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (“Segregated detention [as discipline] is not cruel and unusual punishment per se, as long as the conditions of confinement are not foul, inhuman[,] or totally without penological justification.”); Gibson v. Lynch, 652 F.2d 348, 352 (3d Cir. 1981) (solitary confinement for more than 30 days “cannot be considered to trench upon [plaintiff’s] [E]ighth [A]mendment rights”); United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1202 (3d Cir. 1973) (“We have said that solitary confinement does not, in itself, violate the Eighth Amendment[.]”); Gray v. Creamer, 465 F.2d 179, 187 (3d Cir. 1972) (punitive or administrative segregation did “not clearly present the extreme type of situation required to establish an Eighth Amendment violation”); Ford v. Bd. of Managers of N.J. State Prison, 407 F.2d 937, 940 (3d Cir. 1969) (“Solitary confinement in and of itself does not violate Eighth Amendment prohibitions[.]”).
11

1
First, the majority asserts that Porter is making an asapplied challenge to his specific conditions of confinement, whereas Peterkin involved a facial challenge to death row conditions generally. See Maj. Op. 22–23. This argument mischaracterizes Porter’s complaint, and, in any event, the alleged distinction is constitutionally meaningless.
The majority’s framing of Porter’s Eighth Amendment claim is very different from his actual claim set forth in the Complaint. According to the majority, Porter claims that “Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to solitary confinement for thirty-three years.” Maj. Op. 16. But in Count IV of his Complaint—the only cause of action asserting an Eighth Amendment violation—Porter neither attacks any specific conditions of his confinement nor mentions his thirty-three years on death row. Nor does he complain of the deprivation of a basic human need, which is the predicate for any conditions-of-confinement claim. See Wilson, 501 U.S. at 304–05. Instead, he merely repackages his Williams-based procedural due process claim, giving it an Eighth Amendment label.
Specifically, Porter alleges that Defendants violated his right to be free from cruel and unusual punishment by failing “to remove [him] from ‘death row’ as housed in solitary confinement once the sentence of death had been vacated.” JA 44 (Cmpl. ¶ 44) (emphasis added). He further alleges that Defendants violated his Eighth Amendment rights by keeping him “on ‘death row’ and in solitary confinement despite Plaintiff’s sentence of death being vacated . . . .” Id. (Cmpl. ¶ 46) (emphasis added). The allegations in these paragraphs are mostly verbatim restatements of the allegations in Count III, the procedural due process claim. See id. at 43 (Cmpl. ¶¶ 34– 36).
In the paragraphs of Porter’s Complaint common to all counts, he avers a number of “well established” conditions of solitary confinement—conditions that are the same for deathrow inmates throughout Pennsylvania and virtually identical to those challenged in Peterkin. Id. at 40 (Cmpl. ¶ 12); cf.
12

Peterkin, 855 F.2d at 1026–31 (describing challenged conditions of confinement). He then alleges, not that those conditions or any combination of them is cruel and unusual, but that his continued confinement in such “well established” conditions is no longer justified. In support of that allegation, he specifically cites and quotes Williams. JA 40 (Cmpl. ¶¶ 13, 14).
In short, Porter has not asserted an as-applied conditions-of-confinement claim based on thirty-three years in solitary confinement. His Eighth Amendment claim is analytically identical to his procedural process claim: He asserts that it is cruel and unusual for Defendants to keep him on death row after his sentence of death was allegedly vacated. Indeed, all of the counts in Porter’s complaint sound in the exact same Williams-based theory.7
Even if Porter had asserted a conditions-of-confinement claim, it is readily apparent from his complaint and from the majority’s sweeping opinion that he does not raise an asapplied Eighth Amendment challenge. Porter does not complain that the Commonwealth’s particular application of its death row statute to him has deprived him of a constitutional right. And he does not complain that the “well established” conditions of solitary confinement in Pennsylvania are somehow different for him than for any other death row inmate. If, as the majority concludes, Porter’s continued maintenance in solitary confinement violates the Eighth Amendment, then its holding applies to all similarly situated Pennsylvania inmates. There would be no set of as-applied circumstances under which their solitary confinement could be valid.8 See Const. Party of Pa. v. Cortes, 824 F.3d 386, 394 (3d
7 Even if Williams applied to this case, which it does not for reasons I explain above, Porter’s Williams-based Eighth Amendment claim is bootless. Williams considered only a procedural due process claim and did not undertake any Eighth Amendment analysis. That was not an oversight; plaintiffs waived their Eighth Amendment claim on appeal. Williams, 848 F.3d at 553 n.8. 8 The majority’s only discussion of Porter’s particular situation is a passing reference to his conclusory allegations of harm in the complaint. Maj. Op. 21. But the majority’s objective prong
13

Cir. 2016) (discussing as-applied and facial challenges); United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (same).
Finally and most importantly, even if Porter’s Eighth Amendment claims really were as-applied, rather than a facial attack on Pennsylvania’s death row statute, it would not matter for purposes of the constitutional analysis. “[C]lassifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding ‘breadth of the remedy[.]’” Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019) (citation omitted). But whether a challenge is facial or as-applied “does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Id. (citation omitted). “Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek.” Id. at 1127–28 (citations omitted). For all of these reasons, the majority’s attempt to distinguish Peterkin’s Eighth Amendment holding based on the nature of the remedy sought by Porter is specious.
2
The majority next attempts to distinguish Peterkin by observing that Porter “has spent substantially more time in solitary confinement on death row than the Peterkin plaintiffs.” Maj. Op. 24. Again, Porter’s Eighth Amendment claim does not challenge the overall duration of his solitary confinement but only his continued solitary confinement after 2003, based on a misreading of Williams.
In any event, the majority makes no attempt to show why Porter’s longer stay on death row is constitutionally significant or legally distinguishes Peterkin’s Eighth Amendment holding. Because this section of the majority’s opinion is no longer tethered to Williams’s procedural due process framework, it appears to hold generally—but with
analysis relies most heavily on scientific studies that purport to describe psychological findings for all inmates in any type of solitary confinement, no matter where they are incarcerated. Maj. Op. 18–21.
14

almost no constitutional analysis—that long-term solitary confinement is objectively cruel and unusual even for inmates serving an active death sentence. See Maj. Op. 24–25. That is an unwarranted leap from our Eighth Amendment jurisprudence in this area, including Palakovic v. Wetzel, 854 F.3d 209 (2017) (finding that prison officials acted with deliberate indifference by repeatedly subjecting a mentally ill and suicidal inmate serving a sentence for burglary to solitary confinement, abusive staff, and inadequate to non-existent mental health care), and from any guidance offered by the Supreme Court.
Still, it is indeed troubling that seventeen years after the habeas court granted relief with respect to Porter’s death sentence and stayed its vacatur order pending appeal, he perseveres in solitary confinement and the cross-appeals remain undecided. Porter’s habeas appeal was docketed on August 14, 2003. Over the next three years, Porter filed eight motions to stay or temporarily toll briefing, all of which were granted. On November 9, 2006, Porter filed a motion to hold his case in abeyance pending the Pennsylvania state courts’ disposition of his petitions for post-conviction relief. We granted Porter’s motion over the government’s opposition, held the case in abeyance, and required a status report every sixty days. From April 2007 to date, Porter’s counsel has duly filed status reports every sixty days, advising this Court that his PCRA petition remains pending before the state PCRA court but never asking this Court to resolve his case. At the same time, Porter has apparently argued to the PCRA court that it lacked authority to rule on his PCRA petition until his federal proceedings were completed. The result is that both this Court and the PCRA court have held their proceedings in abeyance out of deference to each other, creating an exquisite catch-22 gridlock now approaching two decades.
In Commonwealth v. Porter, the Supreme Court of Pennsylvania recounted the history of this multi-jurisdictional procedural morass. That court opined that Porter’s litigation “strategy—pursued in both state and federal court—has been to avoid having any of [his] collateral claims decided any time soon.” 35 A.3d at 15. And in Commonwealth v. Spotz, Chief Justice Castille filed a concurring opinion describing in detail and sharply criticizing Porter’s litigation strategy, which has
15

“assured a de facto, perpetual stay of execution.” 18 A.3d 244, 347 (Pa. 2011) (Castille, C.J., concurring). The principle of comity counsels that we at least respectfully consider the Pennsylvania Supreme Court’s writings on a matter of direct import to this case.
Porter asserts that his maintenance in solitary confinement after 2003 violates his Eighth Amendment right against cruel and unusual punishment. In evaluating the temporal aspect of that claim, most people exercising common sense would reasonably wonder whether Porter’s own strategic decisions may have contributed to his plight. Common sense aside, because legal relevance concerns probabilistic tendencies and the consequences of one’s actions, Porter’s litigation choices and actions are surely relevant to the length of his time in solitary confinement. See Fed. R. Evid. 401.
And because the law assumes that moral actors are responsible for their voluntary actions, courts have uniformly rejected prisoners’ arguments that delay caused by their own extended appeals creates an Eighth Amendment violation. See Chambers v. Bowersox, 157 F.3d 560, 570 (8th Cir. 1998); Stafford v. Ward, 59 F.3d 1025, 1028 n.5 (10th Cir. 1995); Turner v. Jabe, 58 F.3d 924, 928–29 (4th Cir. 1995); McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir. 1995); Fearance v. Scott, 56 F.3d 633, 639 (5th Cir. 1995); Porter v. Singletary, 49 F.3d 1483, 1485 (11th Cir. 1995). So there is obvious merit in considering the reasons for delay.
I wholeheartedly affirm that no litigant should be criticized for vigorously pursuing his appeal rights. But acknowledging responsibility is different than criticism. And the history of this particular appeal is extraordinary, to say the least. The salient issue, which the majority avoids, is whether Porter—perhaps through less-than-candid maneuvering in two jurisdictions—has thwarted this Court’s disposition of his appeal precisely because he does not wish to pursue his appeal rights. If so, the majority’s argument that Peterkin is distinguishable because Porter has spent relatively more time on death row rings especially hollow.
16

3
Finally, the majority attempts to distinguish Peterkin because the “research and caselaw” have allegedly “advanced considerably” since that case was decided. Maj. Op. 24. Even if that were correct, it is insufficient reason for a panel to overrule a decision with which it no longer agrees. 3d Cir. I.O.P. 9.1 (2018). But it is incorrect.
The majority overstates the extent to which caselaw has “advanced” in the direction that the majority perceives. The Supreme Court has never held that solitary confinement violates the Eighth Amendment, and it continues to rebuff fervid invitations to do so. See supra note 5. 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. See supra note 6 (collecting cases). And we are not an outlier. “The practice of solitary confinement remains unrestrained by the Constitution in just about all forms, imposed on just about all groups of prisoners, in just about all jurisdictions in America.” Andrew Leon Hanna, The Present Constitutional Status of Solitary Confinement, 21 U. Pa. J. Const. L. Online 1, 5 (2019). “[T]he Eighth Amendment has done little to no work in the area of solitary confinement”; indeed, “[i]f there are any true substantive limitations on the conditions presented by solitary or the length of time that a person may be placed in extreme isolation, they have not come from constitutional law.” Alexander A. Reinert, Solitary Troubles, 93 Notre Dame L. Rev. 927, 932, 944 (2018).
In support of its assertion that caselaw has “advanced considerably” since Peterkin, the majority cites one case from another circuit, Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). Clarke was the first and remains the only Court of Appeals decision holding that solitary confinement violates the Eighth Amendment. See Maj. Op. 38 (“But only one circuit has [found an Eighth Amendment violation] . . . in connection with solitary confinement on death row.”). But its relevance to Porter’s case is limited because Virginia—unlike Pennsylvania—did not statutorily require that death-sentenced inmates remain in solitary confinement. Rather, the decision was left solely to the discretion of the state department of
17

corrections. See Va. Code Ann. § 53.1-234. Also, the state defendants inexplicably waived their obligation to adduce legitimate penological considerations justifying the prison officials’ discretionary decisions to isolate death row prisoners. And the state defendants did this notwithstanding the court’s acknowledgement that “a legitimate penological justification can support prolonged detention of an inmate in segregated or solitary confinement, similar to the challenged conditions on Virginia’s death row, even though such conditions create an objective risk of serious emotional and psychological harm.” Clarke, 923 F.3d at 362–63. One easily distinguishable case in another jurisdiction hardly constitutes a sea change in the law, so I disagree that the caselaw has “advanced considerably.”
At bottom, the majority jettisons Peterkin because of “scientific and medical research” which allegedly provides insight about solitary confinement that we lacked when deciding Peterkin (1988), or for that matter Young (1992) and Griffin (1997). Maj. Op. 18–21. That seems to me a dubious proposition. Long before such research emerged, Americans well-understood the baleful effect of solitary confinement on some inmates. Alexis de Tocqueville vividly wrote about the American practice in 1833,9 as did Charles Dickens in 1842.10 And in 1890, the Supreme Court pointedly remarked:
9 “This experiment, of which the favourable results had been anticipated, proved fatal for the majority of prisoners. It devours the victim incessantly and unmercifully; it does not reform, it kills. The unfortunate creatures submitted to this experiment wasted away . . . .” Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 484 (1997) (citing Torsten Eriksson, The Reformers, An Historical Survey of Pioneer Experiments in the Treatment of Criminals 49 (1976) (quoting Alexis de Tocqueville and Gustave de Beaumont)). 10 “The system here, is rigid, strict, and hopeless solitary confinement. I believe it, in its effects, to be cruel and wrong . . . . [T]here is a depth of terrible endurance in it which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature. I hold this slow and daily tampering with the mysteries of the brain, to be
18

A considerable number of the prisoners fell, after even a short [solitary] confinement, into a semifatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.
In re Medley, 134 U.S. 160, 168 (1890).
Throughout the twentieth century, similar criticisms were raised, and political and legal challenges were asserted against the use of solitary confinement. Those controversies attracted the attention of psychologists and psychiatrists who “wrote and testified about the nature, magnitude, and longterm consequences of these acute negative effects.” Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 491 (1997).
So while scientific articles may have proliferated in recent years, we have not witnessed some kind of Copernican shift in our understanding. The risk of potential harm from
immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay . . . . I solemnly declare, that with no rewards or honours could I walk a happy man beneath the open sky by day, or lie me down upon my bed at night, with the consciousness that one human creature, for any length of time, no matter what, lay suffering this unknown punishment in his silent cell, and I the cause, or I consenting to it in the least degree.” Eleanor Umphres, Note, Solitary Confinement: An Unethical Denial of Meaningful Due Process, 30 Geo. J. Legal Ethics 1057, 1062 (2017) (quoting Charles Dickens, American Notes for General Circulation 54 (1867)).
19

solitary confinement (as well as the obvious possible Eighth Amendment implications) has long been well-known. More pointedly, it was not lost on our Court when we decided Peterkin. We described the plaintiffs’ allegations of insanity, suicide, lethargy, anger, and psychological deterioration as “deeply disturbing” though not unconstitutional. Peterkin, 855 F.2d at 1033.
None of the “scientific and medical research” upon which the majority relies so heavily was included in the record of this case. So this panel has not even seen the relevant studies. Instead, the majority simply declares that the risk of harms discussed in unidentified scientific and medical research is “well established,” citing dicta from other cases and an amicus brief. Maj. Op. 18–21. Thus, the evidentiary burden is neatly flipped in this case: The substantial risk of harm that Porter must show is simply presumed as though it were judicially noticeable.
I believe we should at least attend to the scientific research rather than merely accept descriptions of it, sightunseen, as settled adjudicative fact. If we did, we may be surprised to find that the allegedly robust consensus is a bit overstated.
For example, in July 2015, President Obama “directed Attorney General Loretta E. Lynch and the Justice Department to review the overuse of solitary confinement across U.S. prisons.”11 As part of that review, the U.S. Department of Justice’s National Institute of Justice12 issued a March 2016
11 Barack Obama, Opinion, Why We Must Rethink Solitary Confinement, Wash. Post, Jan. 25, 2016, https://www.washingtonpost.com/opinions/barack-obamawhy-we-must-rethink-solitaryconfinement/2016/01/25/29a361f2-c384-11e5-89650607e0e265ce_story.html (last visited July 28, 2020). 12 “The National Institute of Justice (NIJ) focuses on research, development, and evaluation of crime control and justice issues. NIJ provides objective, independent, evidence-based knowledge and tools to meet the challenge of criminal justice, particularly at local and state levels.” See
20

paper titled “Administrative Segregation in U.S. Prisons,” in which it surveyed the research on the psychological effects of solitary confinement and other types of administrative segregation as practiced throughout the United States. See https://www.ncjrs.gov/pdffiles1/nij/249749.pdf (last visited July 28, 2020). Here are some of the findings in the NIJ report:
• “The only clear statement that can be made about the body of literature assessing the psychological effects of solitary confinement is that researchers using different methods to study different populations have come to different conclusions about the psychological effects on inmates.” Id. at 16.
• “Although rarely acknowledged, the psychological/psychiatric effects research frequently relies on a large body of literature on the effects of sensory deprivation. . . . [I]t is often taken for granted that isolation will have severe and lasting detrimental effects on the psychological well-being of all those exposed to it, even though the evidence in this area does not always bear out this assumption . . . .” Id. n.10.
• “Other respected scholars have also been less than convinced by the accumulated evidence regarding psychological effects. Bonta and Gendreau (1990), for example, argued that little evidence exists of deteriorating mental health among inmates, emphasizing that ‘long-term imprisonment and specific conditions of confinement such as solitary, under limiting and humane conditions, fail to show any sort of profound detrimental effects.’” Id. at 17.
https://www.ojp.gov/about/offices/national-institute-justicenij (last visited July 28, 2020).
21

• Researchers’ “findings could just as easily be interpreted as demonstrating that incarceration in and of itself has damaging effects on the mental health of individuals subjected to it, especially initially.” Id. at 18.
• Meta-analytic scholars “found only weak effects of solitary confinement on inmate outcomes (most of which were psychological) and concluded that their meta-analytic review did not find support for the long-argued contention that solitary confinement has lasting psychological effects on those subjected to it.” Id. at 22.
• Findings from recent meta-analyses “cast some doubts about [solitary confinement] being as devastating to inmates as has often been portrayed in the media and by some human rights organizations, activists, and scholars who vehemently oppose the practice on moral/ethical grounds . . . .” Id.
• “After a thorough review of the extant literature [on the practice of all types of administrative segregation throughout the United States], it is clear that, in 2015, the answers continue to be few and the questions many. It is equally clear that when researchers have disagreed, and in this area they have tended to disagree passionately, they have not always been speaking the same language or conducting research with equivalent populations.” Id. at 23.
• “What is more, for many researchers studying solitary confinement, the practice raises not only empirical
22

questions but also moral and ethical concerns that will persist regardless of the breadth or depth of the evidence base. Across a literature replete with highly charged emotions, interpreting the evidence and separating evidence from strongly held beliefs have become exceptionally difficult.” Id.
These bullet points are not fully representative of the NIJ report. It also finds, for example, that “a substantial body of work has established that solitary confinement can have damaging psychological effects, particularly when that confinement involves near complete isolation and sensory deprivation, or when the term of such confinement is extended.” Id. at 17. But my point is that the purported “consensus” of recent medical and scientific research is not so “robust” and univocal as to justify overturning Peterkin, just because that case was decided in 1988. At least according to the NIJ report, the scientific evidence is ambiguous, contested, and ideologically charged. But the majority does not even acknowledge the ongoing debate, choosing instead to repeat broad, one-sided pronouncements.
B
The subjective prong of the conditions-of-confinement standard requires a prisoner to establish that prison officials acted with deliberate indifference. Wilson, 501 U.S. at 302–03. A prison official is deliberately indifferent when he “knows of and disregards an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at 837. The deliberate indifference test is thus individualized for each prison official responsible for inmates’ care. The majority asserts that Porter has satisfied the subjective prong because officials from Pennsylvania’s Department of Corrections are aware of risks that accompany solitary confinement. Maj. Op. 25–30.
But Porter has not been in solitary confinement because of the discretionary decisions or policies of DOC officials acting with the “requisite culpable state of mind.” See Wilson, 501 U.S. at 297. Instead, the citizens of Pennsylvania, through their elected representatives in the General Assembly, have
23

determined that he must remain in solitary confinement while on death row. See 61 Pa. Cons. Stat. § 4303. For this reason, I believe the majority’s entire discussion of the subjective prong is ill-considered.
As the Court noted in Wilson, Estelle first extended Eighth Amendment protections to “some deprivations that were not specifically part of the sentence but were suffered during imprisonment.” 501 U.S. at 297 (emphasis added). Accordingly, the subjective prong is inapplicable when, as here, the challenged condition is “formally meted out as punishment by the statute or the sentencing judge.” Id. at 300; see also Thaddeus-X v. Blatter, 175 F.3d 378, 401 (6th Cir. 1999) (“All Eighth Amendment claims have an objective component, and when ‘the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer’ in order to make out the subjective component of an Eighth Amendment violation.” (emphasis added) (quoting Wilson, 501 U.S. at 300)).
The Supreme Court has applied the conditions-ofconfinement standard to medical care;13 disciplinary (i.e., discretionary) solitary confinement;14 double celling;15 injuries caused by prison guards;16 and injuries caused by other inmates.17 None of those cases dealt with a statutorily imposed condition of punishment, and for good reasons. The impossibility of imputing subjective intention to a collective body is well-known. See generally John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1918–21 (2015); Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992). And Wilson makes clear that the subjective prong applies only to “Eighth Amendment claims based on official conduct that does not purport to be the penalty formally
13 See Estelle v. Gamble, 429 U.S. 97 (1976). 14 See Hutto v. Finney, 437 U.S. 678 (1978). 15 See Rhodes v. Chapman, 452 U.S. 337 (1981). 16 See Hudson v. McMillian, 503 U.S. 1 (1992); Whitley v. Albers, 475 U.S. 312 (1986). 17 See Farmer v. Brennan, 511 U.S. 825 (1994); Helling v. McKinney, 509 U.S. 25 (1993).
24

imposed for a crime[.]” Wilson, 501 U.S. at 302. Because the majority elides the critical distinction between the discretionary acts of deliberately indifferent prison officials and the faithful enforcement of a law enacted by the Pennsylvania Legislature, its subjective-prong analysis is unpersuasive.
V
I agree that Porter’s substantive due process claim is barred under the more-specific-provision rule. See Maj. Op. 31–33. So I concur with Part III.C. of the majority’s opinion.
VI
The majority holds that qualified immunity is unavailable to Defendants because Porter’s procedural-dueprocess right was clearly established by Williams. See Maj. Op. 36. I disagree for all of the reasons stated in Part II above. Rather, I believe the majority has created a new proceduraldue-process right to be free from solitary confinement notwithstanding an active death sentence. Because that right was not clearly established, Defendants are entitled to qualified immunity on Porter’s procedural due process claim.
VII
Assuming for the sake of argument that Porter’s Eighth Amendment right to be free from cruel and unusual punishments was violated, I agree that Defendants are entitled to qualified immunity. See Maj. Op. 40. I therefore concur with Part III.D.2. of the majority opinion insofar as it holds that “Defendants are . . . entitled to qualified immunity on Porter’s Eighth Amendment claim.” Id.
* * *
This opinion explains my disagreement with the majority’s opinion and judgment. It is not about the merits or demerits of solitary confinement. Whether to use solitary confinement at all—and if so, under what circumstances, for which prisoners, the specific conditions of confinement, and the duration of such confinement—is a policy judgment bristling with moral, political, penological, institutional, and
25

religious or philosophical questions. Such policy judgments are reserved for the Legislative Branch18—and the Pennsylvania Legislature has made them, at least for inmates who, like Porter, have been sentenced to death following a conviction of murder. For the reasons discussed herein, I respectfully dissent in part from the majority’s opinion because I believe it misconstrues the applicable law.
18 See Bell v. Wolfish, 441 U.S. 520, 548 (1979) (The “operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” (citation omitted)); see generally Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 Notre Dame L. Rev. 1149 (2006).
26