Case 2:12-cv-00116-JMS-MJD Document 274 Filed 12/19/18 Page 1 of 37 PageID #: 3665

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

AARON ISBY-ISRAEL,

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Plaintiff,

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v.

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JAMES WYNN Director of classification in the )

IDOC,

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RICHARD BROWN Superintendent at W.V.C.F., )

JACK HENDRIX Asst. Superintendent of

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W.V.C.F.,

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JERRY SNYDER unit Team Manager of

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W.V.C.F.,

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BEVERLY GILMORE Case Work Manager of )

W.V.C.F.,

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Defendants.

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No. 2:12-cv-00116-JMS-MJD

Introduction

Plaintiff Aaron Isby-Israel (“Mr. Isby”) was confined in solitary confinement at Wabash Valley Correctional Facility (“Wabash Valley”) for 11 years. He is now so confined at the

Westville Correctional Facility (“Westville”). Mr. Isby is confined in a small cell 23 hours a day,

and allowed out for one hour of recreation, by himself. Whenever he leaves his cell, he is handcuffed behind the back and his legs are shackled. He can shower only three times a week. He

eats all his meals alone from food trays passed through a narrow opening in his cell door. A security

light remains on 24 hours a day, disturbing his sleep. He is allowed no physical contact with any visitors. Under the 14th Amendment to the United States Constitution, he is entitled to meaningful periodic reviews to determine whether he remains a security risk and restrictive housing is still warranted. Instead, he has received nothing but perfunctory 30-day reviews and occasional 90-day reviews. Often, he is not given a reason for his continued segregation, and recent reasons given for

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denying his release from solitary confinement have been his poor attitude and refusal to participate in step-down programming. Brought to mind are the words of an anguished creation in a classic novel: “I am malicious because I am miserable.” Mary W. Shelley, Frankenstein, 99 (Millennium Publications 1818 ed., copyright 2014).
Findings of Fact and Conclusions of Law The Court conducted a second bench trial in this action on September 25 and 26, 2018 in Indianapolis, Indiana, after the action was remanded by the Seventh Circuit Court of Appeals in Isby v. Brown, 856 F.3d 508 (7th Cir. 2017). Mr. Isby was present in person and by counsel.1 All defendants were present by counsel. Defendant Beverly Gilmore was present in person on the first day of trial and Jack Hendrix was present in person on the second day of trial. Defendants Jerry Snyder and Richard Brown were present in person both days. On the second day of trial, counsel for the defendants moved for judgment as a matter of law as to defendants James Wynn, Beverly Gilmore, Julie Snider, Jack Hendrix, and Dusty Russell. That motion was granted as to defendants James Wynn, Julie Snider, and Dusty Russell and denied as to defendants Beverly Gilmore and Jack Hendrix. The claims against defendants Richard Brown, Jack Hendrix, Jerry Snyder, and Beverly Gilmore will be resolved in this Entry. The issue for trial following the Seventh Circuit’s remand is whether Mr. Isby’s confinement in long-term administrative restrictive status housing, also known as solitary confinement, at Wabash Valley has deprived him of a liberty interest without due process. More specifically, the Seventh Circuit remanded this action for trial on the Fourteenth Amendment due process claim after finding that “[g]iven the long stretches of time during which Isby had no serious
1 The Court greatly appreciates the dedicated and capable representation that volunteer counsel, Daniel R. Kelley, Melissa M. Orizondo, Burnell K. Grimes, and Jason M. Rauch of Faegre Baker Daniels LLP provided to the plaintiff.
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disciplinary problems, as well as the conflicting evidence as to the reasons for his ongoing segregation, Isby has raised triable issues of material fact regarding whether his reviews were meaningful or pretextual.” Isby, 856 F.3d at 529. After consideration of the evidence presented during the bench trial, the Court now issues its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1).2
I. Findings of Fact3 A. Mr. Isby’s Institutional History Mr. Isby has been incarcerated in the Indiana Department of Correction (“IDOC”) continuously since April 1989, based on a conviction of robbery with serious bodily injury. In October of 1990, when incarcerated at the Pendleton Correctional Facility (“Pendleton”), Mr. Isby hit a unit counselor in the face. A canine unit was ordered into Mr. Isby’s cell to perform a cell extraction and Mr. Isby stabbed two correctional officers and killed the canine with a homemade weapon. He was convicted of two counts of attempted murder and battery and was sentenced to an additional forty years in prison. He was placed in administrative restrictive status housing after the 1990 stabbings at Pendleton. The terms “segregation,” “administrative segregation,” “solitary confinement,” and “restrictive status housing” will be used interchangeably in this Entry because they mean the same thing. Dkt. 271 at 173-74. In October of 2006, Mr. Isby was transferred to Wabash Valley. Mr. Isby had been found guilty of battery in April 2006 at the Indiana State Prison and served 6 months in “disciplinary” at Westville before he was transferred to Wabash Valley. Dkt. 271 at 50, lines 7-20; Ex. Nos. 145-
2 Any finding of fact that is more properly considered a conclusion of law is adopted as such. Similarly, any conclusion of law that is more properly considered a finding of fact is adopted as such. 3 Some undisputed facts gleaned from the first trial have been included in these Findings of Fact for background as needed.
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153. He was initially placed in the general population where he remained for 19 days. On October 23, 2006, he was placed in department-wide administrative segregation. Defendant Jerry Snyder testified that nothing happened during those 19 days to warrant him being placed in restrictive housing. Dkt. 271 at 50, lines 1-20. The reclassification was based on Mr. Isby’s “extensive and serious conduct history,” his having “stabbed a correctional officer in the throat,” ex. 200, and his being a “threat to facility security.” Ex. Nos. 154-55.4
Mr. Isby is kept in his 7’ x 12’ cell 23 hours a day. A light stays on 24 hours a day, which disrupts his sleep, frustrates him, and stresses him out. He is not allowed to cover the light. Unlike inmates in general population, when he leaves his cell, he is handcuffed behind his back, and sometimes is shackled with leg irons. Unlike inmates in general population, he has no access to vocational work or educational programs. When he is taken out for recreation, he can walk around an area that is about the size of two cells, by himself. He is allowed three showers a week, while general population inmates shower daily. Unlike general population inmates, he cannot have contact visits, meaning he cannot hug or have physical contact with family members. He is allowed much less time using a phone than general population inmates, about 20 minutes a week. Dkt. 270 at 45-48.
When Mr. Isby receives 30-day reviews, he learns about them after the fact when a copy of the form is placed in his packet. Dkt. 270 at 80. He did not receive a “full” 90-day review each time he requested one. He requested 90-day reviews for three years from 2006 to 2009 but never received one. He requested 90-day reviews from Ms. Gilmore and from Mr. Snyder in March and June of 2010, and May and June of 2012, but received no response. Dkt. 270 at 81-82.
4 This action was filed on May 15, 2012. At trial, evidence was admitted dating back to 2002, but for purposes of the applicable two-year statute of limitations, the Court will limit most of its discussion to the review procedures that were in place in 2010 and thereafter.
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Mr. Isby was conduct clear from March 10, 2000 through May 26, 2005, for a total of five years and two months. Dkt. 270 at 59, lines 5-11. He was also conduct clear from March 24, 2009 through December 15, 2014, for a total of five years and eight months. Dkt. 270 at 53, lines 1119. He received a B level conduct report5 in December 2014, for attempted battery without a weapon.6 Ex. E. Mr. Isby has also been conduct clear from December 15, 2014 until September 25, 2018, the date of trial, for a total of three years and nine months. Dkt. 270 at 53, lines 23-25.
Mr. Isby is not willing to participate in any type of programming to get out of administrative segregation. Dkt. 270 at 74-5. Mr. Isby appealed his classification reviews on a number of occasions dating back to September of 2009, but they were all denied. Ex. Nos. 85, 22325, 96, 198, 122, 201, 203, 208, 209, 223, 194, 213, 17, 215, 42, 43, 231. There was no response given to Mr. Isby’s appeal of a 90-day review in May 2011 even though it was Warden Brown’s responsibility to ensure that a decision was issued. Dkt. 271 at 104-105; Ex. 122. In June of 2012, Mr. Isby appealed the denial of a transfer request. Ex. 203. This appeal was denied at the facility and was not sent to the Director of Classification, whose office is supposed to review appeal denials. Dkt. 271 at 214-217.
5 Level C and D offenses are relatively minor, D being the lowest of the offenses. Dkt. 270 at 108, lines 816. Level A (the most severe) and B offenses are considered major conduct offenses. Id. at 102, lines 1721; dkt. 270 at 189, line 15. 6 The Court described this incident in findings after the first trial in this case as follows: “On December 15, 2014, Mr. Isby-Israel was using a phone in his cell. Correctional Officer Jaymison Bennett went to the cell to retrieve the phone when Mr. Isby-Israel’s 20 minutes of time was up. Mr. Isby-Israel became angry because the officer did not allow him time to say goodbye. Officer Bennett reported that Mr. Isby-Israel threw the phone toward the cuff port on his cell door. Mr. Isby-Israel testified that he set the phone back on the cuff-port. Video evidence shows that Mr. Isby-Israel took a swipe with his hand toward the officer through the cuff-port. Officer Bennett then sprayed Mr. Isby-Israel with OC spray and wrote him up for attempted battery without a weapon. Mr. Isby-Israel was found guilty of that disciplinary charge.” Dkt. 135 at 4.
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Similarly, in April of 2014, Mr. Isby appealed a 90-day review and no appeal decision was made. Dkt. 271 at 113-114; Ex. 208. The response area on the form was left entirely blank. Dkt. 271 at 218-19; Ex. 208. Mr. Isby’s May of 2014 request to transfer to Indiana State Prison (“ISP”) was denied and the written reason made by a superintendent was that Mr. Isby could not request the transfer because ISP does not have department-wide restrictive housing. Dkt. 271 at 114-118; Ex. 205.7 The Director of Classification’s designee did not fill out the Central Office section on the form, but she should have. Dkt. 271 at 217-18. In addition to denying his ability to even make such a request, when Mr. Isby appealed, the reason the appeal was denied was that it was “not appealable.” Dkt. 271 at 119; Ex. 209. In accordance with policy, a decision on a transfer request is, in fact, appealable to the Executive Director of Classification. Dkt. 271 at 120.
In August of 2014, a full 90-day review was conducted. Ex. 213. At this time although Mr. Isby had been clear of any major conduct reports for more than six years dating back to a nonviolent level B offense in May of 2008 for filing frivolous lawsuits, his request for release from department-wide restrictive status was denied. Dkt. 271 at 125-127. The caseworker at the time wrote that Mr. Isby had “an extensive conduct history,” noting conduct reports for “battery, disorderly conduct and filing frivolous lawsuits.” Ex. 213. The battery offense, however, was not even listed on the review document because it dated back to 2006. The disorderly conduct offense occurred in October of 2007, seven years earlier. Id. In addition, the caseworker listed the 1990 stabbing incident as a reason for his decision. Id.
The reason given by the Custody Manager in August of 2014 for denying release from department-wide restrictive status was because Mr. Isby was “argumentative during interview and
7 The only prisons in Indiana that have a department-wide restrictive housing unit are Wabash Valley, Westville, and Pendleton.
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was demanding open population instead of transition units.” Dkt. 213 at 2. The STG (Security Threat Group) Coordinator commented that there was “no known STG affiliation. Remains confrontational with staff.” Id. Jerry Snyder wrote, “serious history of assaults against staff. Remains disrespectful and argumentative with staff as documented in this review. Harbors intense anger toward authoritative figures. Stated refusal to go to NCN-TU.”8 Id. Warden Brown noted Mr. Isby’s “comments made during the interview that he will not go to NCN-TU.” Id. Mr. Isby was not provided with a copy of the decision and comments after this review, as it was marked “confidential.” Dkt. 271 at 124, lines 3-4; Ex. 213. Warden Brown testified that had Mr. Isby been willing to go to the NCN-TU, it would have been appropriate to transfer him there regardless of Mr. Isby’s behavior. Dkt. 271 at 129.
In May 2015, Mr. Isby again requested a transfer to ISP. Ex. 14. His request was denied for the reason “appropriately placed.” Ex. 15. Mr. Isby appealed, pointing out that he had not been given any “rationale” for why his request was denied. Ex. 16. He also wrote that he had been in restrictive housing for nine years and that placement was not based on “valid security justifications.” Ex. 17. Deputy Commissioner Basinger denied the appeal, writing in July 2015, that, “[a]lthough Wabash Valley may not be the facility of your choosing, you are appropriately placed. You are encouraged to continue working with staff and taking advantage of available programming.” Ex. 18.
On June 22, 2017, a month after the Seventh Circuit issued its remand in this case, Mr. Isby was transferred to Westville, “per administrative request.” Ex. 217. Warden Brown recommended the transfer. Dkt. 271 at 137. The reasons given for the transfer were “departmental needs” and “superintendent recommendation.” Id.; Ex. 217. The additional reason of “recent
8 The STAND program at New Castle Correctional Facility, called NCN-TU (transition unit), is to help inmates transition from restrictive housing to general population. Dkt. 271 at 15, 55.
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positive adjustment” was added by Director of Classification Hendrix. Dkt. 271 at 226; Ex. 218. Warden Brown testified that after he consulted with Jerry Snyder, he recommended the transfer because Mr. Isby could benefit from “a change of scenery.” Dkt. 271 at 138, lines 1-11. Jerry Snyder, at the direction of Director Hendrix at the Central Office, advised that Warden Brown should complete a letter on Mr. Isby although that was not normal procedure. Mr. Snyder wrote the letter to Michael Osburn, Southern Regional Director, for the Warden’s signature. Dkt. 271 at 138-141; dkt. 271 at 249; Ex. 219. The letter stated that Mr. Isby’s continued placement in department-wide administrative restrictive status housing in the Secure Confinement Unit at Wabash Valley was “due to an extensive history of staff assault and a refusal to participate in recommended self-help programs.” Ex. 219. The letter described the 1990 incident and his December 29, 2014 level B conduct report for reaching out of the cuffport of his cell in an attempt to assault an officer. Id. It further stated that Mr. Isby had refused to participate in programs recommended by the unit team. Id. The letter also noted that the mental health evaluations revealed that Mr. Isby did not exhibit signs or symptoms of an AXIS 1 Diagnosis and is not at high risk to decompensate in a Secure Confinement Unit. Id. The transfer did not change Mr. Isby’s classification at all. Rather, it continued his placement in department-wide administrative restrictive status housing at a different prison. Id. Mr. Isby was not provided a copy of the letter because it was marked “confidential.” Id.
B. Defendants’ Review of Mr. Isby’s Placement Defendant Beverly Gilmore was a casework manager in the administrative restrictive housing unit at Wabash Valley from 2008 until July 2014. Dkt. 270 at 91, 163-64. She supervised Charles Dugan, a caseworker. Her supervisor was defendant Jerry Snyder, the Unit Team Manager.
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Ms. Gilmore conducted 30-day, 90-day, and annual reviews of inmates’ placement in department-wide restrictive housing. The only reviews that are conducted automatically are the 30-day and the annual reviews. Dkt. 270 at 113, lines 6-10.
In her affidavit presented in support of the defendants’ motion for summary judgment, filed on September 23, 2013, Ms. Gilmore testified that Mr. Isby “is reviewed for continued placement in the department-wide administrative segregation unit every thirty days pursuant to DOC policy.” Dkt. 52-1, ¶14. She further stated, “[t]he thirty-day review consists of examining the offender’s Case Plan and other documents related to behavior, conduct, and safety concerns, as well as reviewing any conduct reports and history.” Dkt. 52-1, ¶12.
At this second trial, Ms. Gilmore testified that she stood by her affidavit. Dkt. 270 at 113115. She testified that to prepare for each 30-day review, she reviewed case notes, spent 30 minutes with Mr. Isby if he allowed that, checked his conduct report history, talked to correctional officers assigned to the unit about his behavior to get their perspective, considered his behavior toward her and other inmates, and would also take into account whether he participated in programming such as the ACT (“Action, Consequences, and Treatment”) cognitive restructuring program. Dkt. 270 at 115-118. Participation in such a program was not required to be recommended for release from segregation, but she considered it “extremely important” because it showed initiative. Id. at 147. Participation in those programs also does not guarantee that an inmate will be released from segregation, and some ACT graduates may remain in segregation even after completing the program. Id. at 118.
Ms. Gilmore testified that she also always referred to notes in the Offender Case Management System (OCMS). This is where all treatment team staff could place case notes and record incidents of rudeness or cursing, and where all conduct reports were automatically
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populated. Id. at 118. Ms. Gilmore testified that for every 30-day review, she made an individual decision regarding whether she would recommend the prisoner for release from segregation and into general population. Dkt. 270 at 116, lines 9-13. In sum, the factors that Ms. Gilmore considered during a 30-day review were “their conduct reports, cooperation, their behavior, programming completion, [and] staff interactions.” Dkt. 270 at 175, lines 10-14; lines 23-25. She also noted, however, that the 30-day reviews could be “cookie cutter” reviews “when there is nothing that has changed.” Dkt. 270 at 174, lines 1-3.
Each 30-day review form was titled “WVCF SECURED HOUSING UNIT, Administrative Segregation Review.” The date of review, offender’s name, identification number, location, and segregation intake date were listed on each report. The body of each 30-day review that Ms. Gilmore produced provided as follows:
Per order of the Southern Regional Director, Offender Isby, Aaron, DOC #892219, is currently assigned to the Department-Wide Administrative Segregation Unit of the Wabash Valley Correctional Facility. Your status has been reviewed and there are no changes recommended to the Southern Regional Director at this time. Your current Department-Wide Administrative Segregation status shall remain in effect unless otherwise rescinded by the Southern Regional Director. This segregation review was prepared by B. Gilmore, CWM, Special Confinement Unit. If there are any questions regarding this report, they may be directed to either the Unit Counselor or the Casework Manager. E.g., Ex. Nos. 73, 74, 78, 81-83, 86, 88, 89, 91-93, 97, 99-117, 124 (dated Dec. 15, 2008, through April 2013). Every 30-day review form was the same except for the date. The form was auto-populated. Ms. Gilmore does not remember any 30-day review resulting in a recommendation of release out of segregation for any offender. Dkt. 270 at 129, lines 19-21; dkt. 270 at 175, lines 1-3 (“[N]one of the times that you recommended release came as a result of the 30-day reviews, correct?
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Correct.”). She did recall inmates being recommended for release as a result of 90-day or annual reviews. Dkt. 270 at 129, lines 7-15; dkt. 270 at 171, lines 19-25; dkt. 270 at 172, lines 1-10.
Ms. Gilmore described Mr. Isby as “belligerent, rude, and crude” toward her. Dkt. 270 at 141, lines 24-25. Of the 288 offenders in the SHU, Ms. Gilmore testified that Mr. Isby’s “behavior was one of the top five most belligerent, hateful, mean” inmates. Dkt. 270 at 170, lines 15-16. She would go by his cell to give him his legal mail and he would tell her to “get the F away from my cell.” Id. at lines 17-19. He was uncooperative, would not sign anything for her, and she could not get him to listen to her. Id. at lines 23-15. Nonetheless, when asked, “Mr. Isby’s behavior generally wasn’t extraordinary to the point where you had to write him up, correct?” She replied, “Correct.” Id. at 96.
Ms. Gilmore conducted an annual review of Mr. Isby’s classification on September 24, 2009. Ex. 84. At that time, Mr. Isby had a single relatively minor conduct violation, a C-level, in the prior year. Dkt. 270 at 99, lines 10-20. His classification remained unchanged.
Ninety-day reviews with a hearing occur only when requested by staff or by the inmate, but Ms. Gilmore is not aware of any staff member who initiated a 90-day review without Mr. Isby requesting it. Dkt. 270 at 101, lines 16-25; dkt. 270 at 102, lines 1-11. She conducted a 90-day review on April 27, 2011. Id. at 102, lines 1-3; Ex. 98. At that time, Mr. Isby had had no conduct reports since March 24, 2009, the C-level offense of “lying or providing false statement,” meaning he had been conduct clear for more than two years. Id. at 104, lines 1-4; Ex. 98. Ms. Gilmore admitted that being conduct clear for more than two years would be one “very positive” factor when considering whether to recommend release from segregation. Dkt. 270 at 104, lines 5-13. Ms. Gilmore did not, however, recommend Mr. Isby’s release from segregation. Id. at 106, lines 6-12. Ms. Gilmore wrote the following in the review:
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Offender believes he is all knowing about policy, procedure, and the law. He seems to enjoy trying to start arguments with staff. He is not a pleasant person. After researching his institutional packet, I chose to add the paragraph regarding Isby’s ‘Freedom Fighters’ activity from 1999 through 2000. I believe this exposes insight into his deceptive cognitive behavior. It is my conviction that given the opportunity in general population Isby will have more freedom to play havoc with any situation possible in the [sic] order to satisfy his own wants and perceived needs.9 Ex. 98 at 3. Ms. Gilmore considered the Freedom Fighters incident, a C-level offense, as a factor for keeping Mr. Isby in segregation 11 years later. Dkt. 270 at 107, lines 10-22; dkt. 270 at 108, lines 13-17. The Custody Manager, STG Coordinator, Unit Manager J. Snyder, Assistant Superintendent, and Superintendent D. Brown all signed the 90-day review, and circled “not recommended” on the form. Dkt. 98 at 3. Their comments included “do [sic] to his violent history,” “no known STG, extremely violent past, and could not maintain in G.P. (general population) the last time in G.P.” Id. Defendant Snyder commented “extremely violent past as described above. He has not done well in GP when given the opportunity (B212 on 4/4/06 in GP at ISP).” Id. One month after the April 2011 90-day review, Ms. Gilmore conducted an annual review in May 2011. Not surprisingly, this review also indicated that in the prior 12-month period, Mr. Isby had no conduct reports. Ex. 121. Again, as of that time Mr. Isby had maintained clear conduct since March 24, 2009, more than two years prior to the review. Dkt. 270 at 103, lines 13-25. The March 24, 2009, C-level conduct report was written for “lying or providing a false statement.” Ex. 98. The conduct report before that was issued in May 2008 for “filing a frivolous lawsuit.” Id. Ms. Gilmore testified that it was Mr. Isby’s “attitude and actions” that kept her from recommending him for release to general population in 2011. Dkt. 270 at 101, lines 7-10. She would not
9 The paragraph referenced states, in part, “In 1999, Isby attempted to create a Non-Profit organization called ‘Freedom Fighters.’ The first of the investigations was initiated due to Isby’s failure to gain IDOC permission to operate said organization. The next three were due to his continued efforts to operate the organization.” Ex. 98 at 1.
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recommend someone for release who “is not behaving himself and being rude and crude to staff and other offenders around them.” Id. at 101, lines 11-15.
Ms. Gilmore also wrote a 90-day review on December 20, 2011. Ex. 125. She had no intention of recommending Mr. Isby for release from segregation because “he had not straightened his behavior up, and he is cursing me and calling me bad names. Won’t happen.” Dkt. 270 at 109, lines 19-24. She included the same paragraph about Mr. Isby believing he is “all knowing” and the 1999-2000 Freedom Fighters C-level conduct report in the December 2011 review. Ex. 126. The Custody Manager concurred and the STG Coordinator noted, “no known STG. Very disruptive and violent.” Id. at 3. J. Snyder, Unit Manager, did not recommend release because of “extremely violent DOC history.” Id. Warden Brown did not recommend release but had no comments. Id.
Every 90 days, psychiatric evaluations were performed on inmates in segregation at Wabash Valley, including Mr. Isby. Casework managers and caseworkers, however, were not provided copies of the mental health reviews nor did they ask the mental health workers about the inmates’ mental health status. Dkt. 270 at 122-136. As noted by Unit Team Manager Jerry Snyder, however, there are treatment team meetings during which mental health professionals discuss their observations of each inmate with the caseworkers and unit team managers at least once a month. Dkt. 271 at 44-45.
The mental health reports on Mr. Isby dating from June 2008 through June 2017 consistently included either the statement, “[c]ustody reported [Isby] is generally cooperative and voiced no specific problems with the management of this offender” or “[c]ustody officers voiced no specific recent problems with the management of this offender.” Ex. Nos. 182, 187, 75, 79, 80, 87, 90, 94, 118, 119, 127, and 129, 131, 133-37, 6, 8, 9, 11, 20, 23, 24, 26, 28, 30, 32, 34, 36, 38, 45, 47, 51, 54, 56, 58, 60, 63, 65, 67. Ms. Gilmore testified that even if she had been privy to the
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mental health reports and opinions, it “would not have [changed her recommendations] because of the fact [Isby] was belligerent, rude, and crude.” Dkt. 270 at 141, lines 20-25; dkt. 270 at 144, lines 3-9.
Mr. Charles Dugan has been a caseworker at Wabash Valley since 2011. He was supervised by Ms. Gilmore. On direct, he was asked, “In your opinion, sir, Mr. Isby is in restrictive status housing in 2018 because of the 1990 incident with the two officers, correct?” Dkt. 270 at 180, lines 6-8. Mr. Dugan responded, “That, that would be correct.” Id. at line 9. Mr. Dugan further testified that one reason for conducting 30-day reviews “is to let the offenders know how they can get out of restrictive status housing.” Dkt. 270 at 196, lines 13-16. He did the 30-day reviews because policy told him to. Dkt. 270 at 197, lines 20-22. Mr. Dugan did not perform 90-day reviews. Dkt. 270 at 192, lines 3-7.
When Mr. Dugan prepared the 30-day reviews, he opened his computer, opened a form, typed in the date, and an Excel spreadsheet auto-populated the report. Dkt. 270 at 197, lines 2325; dkt. 270 at 198, lines 1-15. Mr. Dugan checked the spelling of the inmate’s name and DOC number and then hit “print” and gave a copy to the inmate. Id. at 198, lines 16-25. A copy was also sent to classification. That was the entire process. Id. at 199, lines 3-6. Mr. Dugan prepared 30day reviews on Mr. Isby from approximately March 2015 through June 2017. See Ex. Nos. 5, 19, 25, 46, 55, 57, 64, 66 (representative exhibits).
As noted above, each 30-day review form said, “Your status has been reviewed and there are no changes recommended . . . at this time.” Dkt. 270 at 198, lines 3-4; dkt. 270 at 208, lines 23-25. There was no other form that said, “your status has been reviewed and a change has been recommended.” Id. at 198, lines 6-8; dkt. 270 at 209, lines 1-7. Mr. Dugan conceded that there was “not much review behind it.” Id. at 199, lines 7-9. He was trained to do the reviews this way by
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Ms. Gilmore and she never told him that he was leaving out any steps in the process. Id. at 199, lines 13-25; dkt. 270 at 200, lines 1-3. In any given month, it took him 15-20 minutes to do the 30day reviews for all 144 inmates on his caseload, depending on how long it took the printer to print them. Id. at 207, lines 20-25; dkt. 270 at 208, lines 1-6; dkt. 270 at 211, lines 1-9. Mr. Dugan testified that he never did and would not have enough time to sit down and talk with each inmate to discuss each 30-day review. Id. at 211, lines 13-19.
When completing the 30-day review forms, Mr. Dugan did not take into account how long Mr. Isby had gone without any conduct reports being issued or any other updated circumstances since the last review. Dkt. 270 at 212, lines 19-25. Indeed, “there was no way that you would have or could have recommended that Mr. Isby be released from the SCU, correct?” “Correct.” Id. at 213, lines 2-5. When Mr. Dugan completed the 30-day reviews, “it had already been determined that release was not going to be recommended?” “Correct.” Id. at 213, lines 8-10. That was true for every 30-day review that he completed for Mr. Isby, and for everybody on his caseload, every month. Id. at 213, lines 11-18. The only thing that changed was the date. Id. at 213, line 18. Mr. Dugan testified that the conclusion on the 30-day forms was a “preordained conclusion.” Dkt. 270 at 219, lines 10-11. When asked, “[b]ut there is never any actual review that takes place in connection with the 30-day review, correct?” Mr. Dugan responded, “Correct.” Id. at 225, lines 19-23. This is how Mr. Dugan was trained to do the 30-day reviews by Ms. Gilmore and others. Id. at 213, lines 19-23.
When asked about Ms. Gilmore’s statement in her affidavit presented in support of the defendants’ motion for summary judgment, dkt. 52-1, ¶ 12, that “[u]nder DOC policy, offenders who are housed in the department-wide administrative segregation unit are reviewed for continued placement there every 30 days,” Mr. Dugan testified that those offenders are not actually reviewed
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for continued placement. “The process that we have gone over repeatedly, that is the process that is, that is how the review is done.” Dkt. 270 at 226, lines 8-16. When asked, “[t]hat is the only process[?]” Mr. Dugan responded, “[f]or the 30-day review?” Correct.” Id. at lines 17-18. For all 30-day reviews, “[n]o thought goes into what that conclusion is going to be, right?” “That is correct.” Id. at 224, lines 5-17. “And you didn’t do a review in any meaningful sense of that word in connection with [the 30-day review], right?” “That’s correct.” Id. at 225, lines 6-8. “And you are not aware of a review in any meaningful sense of that word having been done with any of the 30-day reviews we have looked at, right?” “That’s correct.” Id. at lines 9-12. Although the statement that Mr. Isby’s “‘status has been reviewed’ appears on all of the 30-day reviews of Mr. Isby’s status in solitary confinement,” “there is never any actual review that takes place in connection with the 30-day review, correct?” “Correct.” Id. at lines 15-21. Mr. Dugan admitted that the statement that an offenders’ “status had been reviewed” was false. Id. at lines 19-23. Mr. Dugan also responded to the question that “it is fairly common to get in arguments with staff when you are a prisoner on the SCU, right?” “Correct.” Dkt. 270 at 192, lines 21-23.
Jerry Snyder has been employed as a correctional officer, counselor, casework manager, and unit team manager with the IDOC. He has worked at Wabash Valley since 1993. Dkt. 271 at 3-5. Mr. Isby was on Mr. Snyder’s unit team caseload for a long time. Id. at 6, lines 8-11. He testified that Mr. Isby remains in restrictive housing based on his serious past conduct, based on his anger and hatred exhibited on a daily basis, and based on his refusal to participate in programs. Dkt. 271 at 10, 12. Mr. Snyder admitted that participation in programs is not required for an offender to be released from restrictive status housing and that some offenders in that status have participated in programs but not been released. Dkt. 271 at 12, lines 5-22. Mr. Isby was transferred out of Wabash Valley to Westville on June 22, 2017, because “it was determined that a change of
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scenery might be better for his attitude.” Dkt. 271 at 13, lines 3-6. Warden Brown and Mr. Snyder made that decision, along with deputy wardens. Id. at lines 7-12.
Mr. Snyder testified that the mechanism that the IDOC relies on to conduct meaningful reviews of inmates’ restrictive housing status is the 30-day review process. Dkt. 271 at 45-47. He testified that to conduct a 30-day review, “all staff does is just enter information into the computer, and it generates the form, correct?” “Yes.” Id. at 22, lines 9-11. He further admitted that “all staff does is change a few things like the date, the name, and submit that to the offender.” Dkt. 271 at 22, lines 12-15. As a supervisor, he checks to make sure they are being done correctly. Id. at lines 16-20.
Mr. Snyder stated that the 90-day reviews also comply with the Supreme Court’s directive for meaningful review, but offenders are required to request those even though staff have the option to request them. Dkt. 271 at 47, lines 10-16. In response to questioning from the Court, Mr. Snyder testified that every inmate who is disrespectful, angry, surly, cussing, and every inmate who has committed murder is not in restrictive housing. Dkt. 271 at 46-47.
When Mr. Snyder participated in 90-day reviews, in determining whether an inmate should be released from solitary confinement, he considered the reason the offender was in solitary confinement, the offender’s conduct history since being admitted to solitary confinement, a review of the OCMS notes, the offender’s interactions with staff, and whether programs have been recommended and whether the offender has participated in those programs. Dkt. 271 at 17-18. Ninety-day reviews are not automatic. They can be requested by the offender or initiated by staff. Id. at 18, lines 13-19. The recommendation process during 90-day reviews goes from the casework manager, to the housing lieutenant, to the Office of Investigation and Intelligence, to the unit team manager, to the deputy warden of operations, and finally to the warden. Id. at 18-19. During the
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August of 2014 90-day review, Mr. Snyder interviewed Mr. Isby but recommended denying release from solitary confinement based on the “best interest of safety and security.” Dkt. 271 at 19, lines 13-25; dkt. 271 at 20, lines 12-14; Ex. 192. Mr. Isby was not provided any report of what factors were considered during the review. Specifically, he was not informed that his attitude, refusal to participate in programs, or interactions with staff were considered in making the determination. Dkt. 271 at 20-21.
Mr. Snyder testified on cross that in addition to the 1990 incident, when Mr. Isby was released from department-wide restrictive status housing and assigned to general population in 1996, within ten months he threatened to do physical harm on a staff member. Dkt. 271 at 56. He further testified that when Mr. Isby was released from department-wide restrictive status housing to facility restrictive status housing in 2005, within six months he had threatened staff and had battered another offender. Id. That is why Mr. Snyder believes that Mr. Isby should go through programming before recommending that he be released from administrative restrictive status housing. Id.
Mr. Richard Brown has been the Warden of Wabash Valley since February of 2011. Dkt. 271 at 58. Offenders in segregation, unlike those in general population, are in their cell 23 hours a day, they have recreation alone, their property is restricted, they cannot have contact visits, and they do not have access to an email kiosk that allows general population inmates to email family and friends. Dkt. 271 at 61-62, 97.
Warden Brown agreed that Indiana law requires that every offender placed in administrative segregation be reviewed at least once every 30 days to determine whether the reason for segregation still exists. Dkt. 271 at 73; Ex. 232; Ind. Code § 11-10-1-7. He testified that the basic objective of the IDOC classification system is to assign offenders to the least restrictive
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security and custody levels consistent with the goal to protect the community and to ensure the safety of staff and other offenders. Dkt. 271 at 77. Participation in programming is not one of the criteria that must be met to be released from department-wide administrative restrictive status housing. Dkt. 271 at 89-90.
Warden Brown testified that the purpose of the 30-day reviews is to determine the continuing need for and appropriateness of continued placement in restrictive status housing. Dkt. 271 at 83-84. Warden Brown agreed that Mr. Isby was originally placed in and remains in segregation because of his past assaultive behavior, his continued attitude and demeanor toward staff, and his unwillingness to participate in programming. Id. at 85.
As Warden, Mr. Brown is the last facility decision-maker in the line of reviewers during 90-day reviews. Dkt. 271 at 65-66; 79-81; 148. If an offender is recommended for transfer or release from restrictive status housing, only then would the review go from the Warden to the Central Office. Id. at 149. According to IDOC policy, wardens are responsible for the operation of their respective facilities, including the intrafacility classification and assignment of offenders. The Warden of each facility is responsible for providing ongoing in-house classification training to ensure that all staff members involved in offender classification are aware of the procedures and their roles and responsibilities in offender classification, assignment, and reassignment. Id. at 81. Warden Brown has not provided any ongoing classification training at Wabash Valley nor is he aware of the last time training was provided. Id. at 81-82.
When Warden Brown makes 90-day review decisions, he considers past conduct history, comments made by staff who deal with the offender on a daily basis, cooperation with staff, current conduct, sentencings, and whether or not the inmate participated in any programming within the unit. Dkt. 271 at 149. The main reasons Warden Brown never recommended that Mr. Isby be
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transferred out of department-wide administrative restrictive status housing were because of Mr. Isby’s unwillingness to participate in programs and comments from staff about how uncooperative he was. Dkt. 271 at 150.
Defendant Jack Hendrix was an Assistant Superintendent at Wabash Valley from 2006 until 2011. He became Director of Classification for the IDOC in the Central Office in 2011. In 2014, he became Executive Director of Classification for the IDOC and was on the Commissioner of the IDOC’s executive staff. Dkt. 271 at 168-170. He reports to the Deputy Commissioner of Operations. Id. at 177. It is among his duties to ensure that IDOC personnel are complying with policies and state and federal law and to “develop, implement, operate, monitor, evaluate, and revise the department’s [IDOC’s] classification system.” Dkt. 271 at 177-79. He supervises the offender placement section. Id. at 179.
Director Hendrix testified that the goal of the 30-day reviews was to determine whether the conditions that warranted placement in solitary confinement still existed. Dkt. 271 at 174. For inmates assigned to department-wide restrictive status housing, including Mr. Isby, any appeal from a 30-day, 90-day, or annual review complaining about his continued placement in segregation was supposed to be directed to Mr. Hendrix’s office rather than handled at the facility. Dkt. 271 at 179-83. As noted, Mr. Isby’s appeals were not always reviewed by Director Hendrix’s office. Otherwise, 90-day reviews come to his office only if a warden recommends transfer. Dkt. 271 at 245.
As noted, Mr. Isby was transferred from Wabash Valley to Westville in June of 2017. Dkt. 217. On July 27, 2017, a full review was completed at Westville and it recommended Mr. Isby for release from department-wide administrative restrictive status housing. Dkt. 271 at 226-228; Ex. 228. There were no comments written in by the signature of each of the six reviewers. Ex. 228.
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Thereafter, Director Hendrix contacted the Westville warden, classification supervisor, and unit team manager at Westville, and requested an additional review. Dkt. 271 at 227-233. Then in less than a month, on August 17, 2017, the same employees and officials conducted another full review and this time the request for release from department-wide administrative restrictive status housing was denied. Dkt. 271 at 229-232; Ex 229. The comments given the second time were “this offender doesn’t want to comply with policy or procedure,” “since arrival at WCU on June 28, 2017, the offender has been anti-administration. He wants to control the facility rather than following procedure/policy,” and “not recommended at this time due to his anti-social behavior, seems to think all DOC personnel is against him and continuously fights back, seems to have a lot of anger issues.” Dkt. 229. This confidential report was not provided to Mr. Isby.
II. Conclusions of Law and Analysis “The Supreme Court held in Hewitt [v. Helms, 459 U.S. 460 (1983)] that the Due Process Clause mandates that prison officials periodically review whether an inmate placed in administrative segregation continues to pose a threat.” Isby, 856 F.3d at 524. As noted above, the question presented here is whether Mr. Isby’s due process rights have been violated by the defendants while keeping him in solitary confinement, a/k/a “department-wide restrictive status housing,” for years. Consideration of the circumstances presented in this case is influenced by the Court’s awareness that “research still confirms what this [Supreme] Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.” Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (J. Kennedy, concurring). “Prolonged solitary confinement exacts a heavy psychological toll that often continues to plague an inmate’s mind even after he is resocialized.” Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir. 2015); see also Williams v. Secretary Pennsylvania Dept. of Corrections, 848 F.3d 549, 573-74 (3d Cir. 2017) (“explicitly add[ing] our jurisprudential
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voice to this growing chorus” of the “judiciary’s increasing recognition of the scientific evidence of the harms of solitary confinement.”).
“[T]he extraordinary length of Isby’s segregation in the SCU implicates his due process rights.” Isby, 856 F.3d at 524. “To evaluate Wabash Valley’s procedures in light of Hewitt, we consider the three Mathews v. Eldridge factors: (1) the private interest (that is, Isby’s interest) affected by a governmental decision, (2) the governmental interests at stake, and (3) ‘the risk of an erroneous deprivation of [the private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.’” Isby, 856 F.3d at 525 (quoting Mathews, 424 U.S. 319, 335 (1976)).
The Seventh Circuit held that the “extended, indefinite length of his placement in the SCU tips the scale in [Isby’s] favor on this [first] prong of the analysis.” Id. at 526. The Isby Court further found that the government’s interests are “substantial” because “[m]aintaining institutional security and safety are crucial considerations in the management of a prison, and, to the extent that an inmate continues to pose a threat to himself or others, ongoing segregation may well be justified.” Id.
The Seventh Circuit continued its analysis by stating, “[w]ith no potential end date on Isby’s segregation, we confront the third of the Mathews factors and note that the boilerplate output of each review seems all the more concerning.” Id. at 526-27. On remand, the Isby Court held that “there is a genuine dispute of fact as to whether the thirty-day reviews take into account any updated circumstances in evaluating the need for continued confinement, given the length of Isby’s segregation, his long stretches of time without any disciplinary issues, and the rote repetition of the same two boilerplate sentences following each review.” Id. at 528.
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Inmates placed in solitary confinement are entitled to “an informal and nonadversary periodic review (the frequency of which is committed to the discretion of the prison officials) that keeps administrative segregation from becoming a pretext for indefinite confinement.” Isby, 856 F.3d at 525 (internal quotation omitted). The Seventh Circuit also quoted with approval the Tenth Circuit’s holding in Toevs v. Reid, 685 F.3d 903, 913 (10th Cir. 2012) that ‘“a meaningful review ... is one that evaluates the prisoner’s current circumstances and future prospects, and, considering the reason(s) for his confinement to the program, determines whether that placement remains warranted.’” Isby, 856 F.3d at 527. “And while submission of new evidence or a full hearing may not be necessary to meet the requirements of due process under Hewitt, an actual review—i.e., one open to the possibility of a different outcome—certainly is.” Id. at 528 (citing Proctor v. LeClaire, 846 F.3d 597, 611 (2d Cir. 2017) (“It is inherent in Hewitt’s use of the term ‘periodic’ that ongoing Ad Seg reviews may not be frozen in time, forever rehashing information addressed at the inmate’s initial Ad Seg determination....prison officials must look to the inmate’s present and future behavior and consider new events to some degree to ensure that prison officials do not use past events alone to justify indefinite confinement.”)).
Thus, periodic reviews must be meaningful and cannot be a sham or pretext for indefinite segregation. They cannot rely only on past events, nor can they only include uninformative boilerplate language. In this case, periodic reviews must consider Mr. Isby’s current circumstances and future prospects, in addition to the reasons for his placement in solitary confinement when determining whether his continued solitary confinement is warranted.
It is plain from the record that the 30-day reviews at Wabash Valley were perfunctory, meaningless, and not even rubber stamped. The identical forms with the same language were printed out each month by a single reviewer, a caseworker or casework manager. No factual basis
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or rationale is provided in the 30-day reviews, leaving the basis for “no changes” in status entirely unknown. See Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir. 2015) (discussing similar reasons for finding Mathews’ “risk of erroneous deprivation” factor weighed in favor of inmate who had been in solitary confinement for 20 years).
The testimony by the two caseworkers relating to how the 30-day reviews were actually conducted tell completely different stories. Although what circumstances were considered for each review, or whether or not anything was considered, ranged from some consideration to none, the end result was always the same: a predetermined form that provided no explanation for what review took place or any rationale for the decision.
The Court does not credit the testimony of Ms. Gilmore that for each 30-day review she reviewed case notes, spent time with Mr. Isby if he allowed it, talked to correctional staff, and referred to OCMS notes. Mr. Dugan admitted that no actual review took place in the 30-day “review” and that Ms. Gilmore’s statement to the contrary was false. Ms. Gilmore is a defendant in this case and faces personal liability, unlike Mr. Dugan, whose candid testimony was credited by the other defendants. She had a personal animus toward Mr. Isby because of how he treated her.
It was only after counsel was appointed in this case after remand on the due process issue that the striking testimony from caseworker Dugan was discovered. While one might argue that Ms. Gilmore and Mr. Dugan conducted their reviews very differently, Mr. Dugan made it clear that Ms. Gilmore trained him to do the reviews just the way he did them. It took him a matter of minutes to do 30-day reviews for his entire caseload. Each review took seconds. All of the caseworkers simply printed out the forms each month the way he did. Mr. Dugan never examined case plans or other documents in connection with a 30-day review. He did not meet with each
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inmate every 30 days. No possibility for a different outcome existed. And, no one testified that the manner in which Mr. Dugan conducted the 30-day “reviews” was improper.
The 30-day “reviews” were “frozen in time.” Not surprisingly, there was no evidence that any inmate had ever been released from solitary confinement as a result of a 30-day “review.”
Based on this record, the only reasonable answer to the question of whether the 30-day reviews were pretextual is “yes.” The Seventh Circuit foreshadowed this Court’s conclusion when it stated, “Here, the repeated issuance of the same uninformative language (without any updates or explanation of why continued placement is necessary) coupled with the length of Isby’s confinement, could cause a reasonable trier of fact to conclude that Isby has been deprived of his liberty interest without due process.” Isby, 856 F.3d at 529. For these reasons, the Court finds the 30-day process conducted at Wabash Valley rendered the “risk of an erroneous deprivation” unacceptably high. Simply put, the 30-day reviews do not pass Constitutional muster.
Of great concern is the fact that defendants have done a complete about face as to their position throughout this litigation that the 30-day reviews satisfied the Constitution. Isby, 856 F.3d at 524 (Defendants “claim, however, that the reviews that Isby receives every thirty days are sufficient for due process.”). They now argue that “[t]he important review of the plaintiff’s status is what is referred to as the 90-day review.” Dkt. 225 at 2. In opening argument, defendants stated that “the Seventh Circuit did not focus solely on the 30-day reviews, and the facts will show that in addition to the 30-day reviews, the offenders in administrative restrictive status housing may request a full review.” Dkt. 270 at 19. They contend what was not supported through any testimony, that “[t]he 30-day review is merely to make sure no offender is overlooked,” rather than being an actual review of the appropriateness of placement in solitary confinement. Dkt. 225 at 2. Interestingly, at trial, casework manager Gilmore testified that the 30-day reviews do not exist
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solely to make sure that no offender was overlooked. Dkt. 270 at 119, lines 14-16. Mr. Snyder also testified that the 30-day review was the mechanism by which the IDOC provided meaningful review, in addition to the 90-day review when an inmate requested one. IDOC policy requires the 30-day reviews. Warden Brown also confirmed that the purpose of the 30-day reviews was to determine the continuing need and appropriateness of continued confinement in restrictive status housing.
This change in defendants’ position from what was presented on summary judgment to this Court and on appeal to the Seventh Circuit is extremely troubling. Judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal quotation omitted). The purpose of the rule of judicial estoppel is “to protect the integrity of the judicial process.” Id. (internal quotation omitted). The doctrine of judicial estoppel “protects the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F3d 785, 795 (7th Cir. 2013). “There are certain clear prerequisites that must obtain before judicial estoppel applies: (1) the later position must be clearly inconsistent with the earlier position; (2) the facts at issue should be the same in both cases; and (3) the party to be estopped must have convinced the first court to adopt its position.” 1st Source Bank v. Neto, 861 F.3d 607, 612 (7th Cir. 2017) (internal quotations omitted). All three elements are present here. Therefore, the defendants cannot slink away from their position that the 30-day reviews passed Constitutional muster.
Having attempted to retreat from their position that the 30-day reviews satisfied due process, the defendants back further into a position where there was no periodic review. Even though prison staff can initiate the reviews, they did so only once while Mr. Isby was at Wabash
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Valley, in 2017 shortly after the Seventh Circuit’s ruling in this case. The 90-day reviews were simply not periodic. They were not conducted every 90 days, nor were they even conducted each time Mr. Isby requested one. As recruited counsel observed in closing argument, “[a] system in which the important reviews might not happen at all is not a system of ongoing reviews under [Smith v.] Shettle [946 F.2d 1250 (7th Cir. 1991)].” Dkt. 271 at 279, lines 22-23.
The defendants also take the startling position for the first time that Mr. Isby has waived his right to due process merely by not exercising it. Defendants cite to Domka v. Portage County, 523 F.3d 776, 782 (7th Cir. 2008) for this proposition, but as counsel for Mr. Isby points out, Domka does not support this position at all. Id. (“A constitutional waiver is considered to be valid if it is knowing and voluntary.”). Consistent with Domka, the law is well-settled that any waiver of procedural due process rights must be knowing and voluntary. See United States v. Baptist, 759 F.3d 690, 695 (7th Cir. 2014) (“While due process rights can be waived, such a waiver must be made knowingly and voluntarily.”) (internal quotation omitted). Even if Mr. Isby had signed some kind of waiver form, which he has not, that would not necessarily suffice. “When constitutional rights are implicated, more is required [than signing a waiver]; [m]eticulous care must be exercised lest the procedure by which [the plaintiff] is deprived of that liberty not meet the essential standards of fairness.” Id. (internal quotation omitted). Merely not asking for the periodic reviews at regular intervals, reviews to which he is entitled, would not constitute a waiver of Mr. Isby’s due process rights. And in fact, Mr. Isby often appealed and requested release from solitary confinement which militates against any alleged waiver.
The appeals that Mr. Isby filed challenging his continued placement in solitary confinement were ignored or not reviewed to the highest level on more than one occasion. Warden Brown’s testimony about his failure to train and ensure proper compliance with classification procedures
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was startling, especially in light of how long the issue of long-term segregation in this case has been in litigation. When Mr. Isby filed a classification appeal in June 2015, he complained that he had been in administrative segregation since 2006 and had received no explanation for why his requests to be released from that status were denied. Ex. 17. In response, the only explanation given was he was “appropriately placed,” with no explanation as to why. Ex. 18.
No one having any responsibility for classification of inmates at Wabash Valley and at the state level can feign ignorance of or justify the lack of attention given to these concerns. Even after the Seventh Circuit spelled out due process law that is already well-settled, the only thing that Warden Brown did in terms of ratcheting up the focus on Mr. Isby’s plight was to transfer him to a different prison. Mr. Isby was still kept in solitary confinement even though to justify the transfer Executive Director of Classification Hendrix noted that Mr. Isby’s behavior had improved (“recent positive adjustment”). Ex. 218. In his letter explaining the transfer, dated June 26, 2017, Warden Brown still highlighted Mr. Isby’s assault in 1990. Dkt. 219.
Defendants continue to argue that no statement of reasons was required during reviews. The Seventh Circuit discussed this on appeal and said, nonetheless, the periodic review must be meaningful and not a pretext or a sham. “While such a statement of reasons may not be constitutionally required, however, under Hewitt, the periodic review must still be meaningful and non-pretextual.” Isby, 856 F.3d at 527.
Warden Brown testified that participating in programming or refusal to do so is not among the IDOC criteria for placement or retention in segregation. When Commissioner Lemmon granted Mr. Isby’s appeal in 2005 to release him to facility administrative segregation, ex. 278, he did so without having Mr. Isby agree to participate in programming. Before May of 2015, Mr. Isby was never informed through any written review process that his refusal to participate in various
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programs was one reason he was denied release from segregated housing. Of course, even if he had been so informed, the record is clear that participating in step down programs did not necessarily guarantee a change in status. Some inmates have completed those programs and still not been released from restrictive housing.
The Court acknowledges the difficulty prison staff face every day in dealing with inmates who behave like Mr. Isby. See Isby, 856 F.3d at 524-25. Isby and Hewitt emphasize that an inmate’s security risk is the reason to allow segregation, not an inmate’s manners. Id. at 525 (‘“The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner….’”) (quoting Hewitt, 459 U.S. at 477 n. 9); Id. (“The [Hewitt] Court recognized that lawfully incarcerated persons retain only a narrow range of protected liberty interests, and that broad discretionary authority is necessary because the administration of a prison is at best an extraordinarily difficult undertaking.”) (internal quotation omitted). At the same time, however, prison staff cannot keep an inmate in solitary confinement indefinitely because they do not like him, or even because he is vulgar, rude, and belligerent. They cannot even keep him in solitary confinement indefinitely for an assault that occurred 28 years ago. Yet that is what the evidence establishes here. When this case was filed, it had been four years since Mr. Isby had been written up for any major conduct violation – a non-violent offense of filing frivolous lawsuits. Mr. Isby had no conduct reports for most of 2009, all of 2010, 2011, 2012, 2013, and through December 29, 2014. He also had no conduct incidents in 2015, 2016, and 2017.
No one is urging that Mr. Isby is a model of decorum or that the 1990 incident was not serious. But neither factor can result in his being kept in solitary confinement for decades. It is difficult for the Court to comprehend how the defendants could reasonably expect a compliant attitude would result from decades of solitary confinement without meaningful review, a clear path
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to release, or human interaction. ‘“The state may not use Ad Seg as a charade in the name of prison security to mask indefinite punishment for past transgressions.’” Isby, 856 F.3d at 529 (quoting Proctor, 846 F.3d at 611).
The May 2011 90-day review was denied based on Mr. Isby being unpleasant, argumentative, and for organizing a group called the “Freedom Fighters” back in 2000, the agenda for which is not of record but nowhere is it implied that it was to perpetuate violence. The December 20, 2011 90-day review was denied for having an “extremely violent DOC history.” Ex. 126 at 3. This “extremely violent” history dated back to 1990 and 2006 (when he was found guilty of battery). A 2014 90-day denial of release from solitary also was based in large part on the 1990 incident. These examples of the rationale applied to Mr. Isby that demonstrate his years of being conduct clear were given inadequate consideration because of his past transgressions.
The Court finds that the defendants denied Mr. Isby’s Fourteenth Amendment due process rights by failing to provide meaningful and periodic reviews of his placement in solitary confinement. Having found this constitutional violation, the Court turns to what remedies shall be awarded.
III. Remedies Mr. Isby seeks compensatory damages and injunctive relief as well as punitive damages. The Court considers each in turn. Compensatory Damages The 30-day reviews are what the defendants have held up as meeting “constitutional muster.” In truth, these were reviews in name only. There was a preordained outcome each month. The review consisted of nothing more than printing a form. No consideration was given to changed
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circumstances or the current lack of major conduct reports. In addition, the 90-day reviews were not “periodic.”
Defendants contend that because Mr. Isby has been appropriately housed even if his due process rights were violated, he is entitled to only nominal damages. The Court finds, however, that if a meaningful review based on proper criteria had been provided, Mr. Isby would have been released from department-wide restrictive status housing as of May 2010, at which time he had been clear of major conduct reports for two years. Moreover, he remained conduct clear until December 15, 2014.10
Mr. Isby acknowledges that because he did not suffer any physical injury, he cannot recover compensatory damages for mental or emotional injury. 42 U.S.C.A. § 1997e(e); Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (“We agree that, absent a showing of physical injury, § 1997e(e) would bar a prisoner’s recovery of compensatory damages for mental and emotional injury.”). “But if that same prisoner alleges some other type of non-physical injury, the statute would not foreclose recovery, assuming that the damages sought were not ‘for’ any mental or emotional injuries suffered.” Id. Although Mr. Isby claims that he has suffered mental and emotional injuries, something the Court views as obvious in light of his extensive solitary confinement, Mr. Isby is not seeking money damages for those injuries.
Mr. Isby argues correctly that he is entitled to compensatory damages for other types of injuries, even if intangible, including the deprivation of society, deprivation of meaningful human contact and ease of communication, the loss of freedom of movement, lack of access to the law library, vocational programs, and job assignments, and diminished quality of life. See Aref v.
10 The Court notes that in 2017 Mr. Isby was recommended for release from department-wide restrictive status housing, ex. 228, but then defendant Hendrix talked to the Warden of Westville and those same reviewers recommended against release a few weeks later. Ex. 229; dkt. 271 at 232-34.
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Lynch, 833 F.3d 242, 264-65 (D.C. Cir. 2016) (“We therefore conclude there exists a universe of injuries that are neither mental nor emotional and for which plaintiffs can recover compensatory damages under the PLRA.”) (listing cases); Cassidy v. Indiana Department of Correction, 199 F.3d 374, 377 (7th Cir. 2000) (plaintiff’s claims for damages for mental and emotional injuries were barred but he “may nonetheless pursue all of his other claims for damages.”).
In his post-trial brief, Mr. Isby suggests an award of $140 per day of segregation for 3,071 days between May 15, 2010 (two years before this action was filed) and the date of the brief, October 11, 2018, amounting to a total of $429,940.00, citing Smith v. Rowe, 761 F.2d 360, 368 (7th Cir. 1985) (affirming $119 per day of segregation) and Campbell v. Peters, 1999 WL 1313698 (N.D.Ill. Sept. 30, 1999) ($140 per day of unjustified confinement), rev’d on qualified immunity grounds, 256 F.3d 695 (7th Cir. 2001). Although Rowe is still cited for its $119 per day award of damages, the Court does not rely on that case because it predated the Prison Litigation Reform Act of 1996 and its bar on damages for mental and emotional injury without a prior showing of physical injury. 42 U.S.C. § 1997e(e).
Guidance from other courts aids in exercising the Court’s discretion in assessing damages. See McClary v. Kelly, 237 F.3d 185 (2d. Cir. 2001) (affirming district court’s award of $125 per day to prisoner held for extensive period in administrative segregation without periodic review); Trobaugh v. Hall, 176 F.3d 1087 (8th Cir. 1999) (reversing $1.00 award with directions to district court to award compensatory damages in the vicinity of $100 per day for days unlawfully spent in administrative segregation and citing cases awarding between $25 and $129 per day).
The Court finds that a reasonable per day damages award lies within the range of $25 and $129. An award of $100 per day in damages for Mr. Isby’s wrongful loss of freedom of movement, deprivation of human contact, lack of access to services, and ease of communication is supported
32

Case 2:12-cv-00116-JMS-MJD Document 274 Filed 12/19/18 Page 33 of 37 PageID #: 3697
by the evidence and caselaw. There are 3,140 days between May 15, 2010 and the date of this Entry, December 19, 2018. This amounts to $314,000.00 in compensatory damages.
Injunctive Relief Mr. Isby’s claim for injunctive relief is also granted. The record establishes the Defendants have violated Mr. Isby’s due process rights and have failed to provide meaningful review of the basis of his segregation. While the Court might ordinarily simply order Mr. Hendrix to ensure compliance with Mr. Isby’s due process rights by providing ongoing periodic and meaningful review of his placement in administrative restricted housing, Defendants’ conduct in its years-long review of Mr. Isby’s segregation status gives the Court no assurance that the same pre-ordained conclusion would not be reached. Accordingly, not later than January 4, 2019, Executive Director Hendrix shall file a proposed plan by which Mr. Isby is removed from department-wide or facility restrictive status housing. Mr. Isby will have fourteen (14) days in which to respond to the proposed plan, and the Court will then decide whether to accept the proposed plan. The Court understands that Mr. Isby cannot be placed directly into general population given his years of isolation, but there is evidence that within the IDOC there are transition options. The Court is mindful that some of Mr. Isby’s conduct while in segregation might have otherwise prompted discipline but for his extreme housing status. Nothing in this Order should be read to imply that the IDOC cannot fairly, and in a non-retaliatory manner, implement its disciplinary policies. The Court also takes this opportunity to advise Mr. Isby that he would be well-served by toning down his angry and belligerent behavior and attempting to cooperate with the people who are charged with his safety and security.
33

Case 2:12-cv-00116-JMS-MJD Document 274 Filed 12/19/18 Page 34 of 37 PageID #: 3698
Punitive Damages With regard to punitive damages, they may be awarded in a section 1983 case “‘when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’” Alexander v. City of Milwaukee, 474 F.3d 437, 453 (7th Cir. 2007) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Ms. Gilmore’s testimony evidenced a willful violation of Mr. Isby’s due process rights. She had no intention of releasing him from segregated housing because of how he verbally abused her and how angry he was. She held against him the violence he exhibited in 1990 and for which he is serving an additional 40-year sentence. She admitted that Mr. Isby being conduct clear for two years was a “very positive factor.” Yet, his attitude and long past actions won out in her mind. It was Mr. Dugan’s opinion that Mr. Isby is still in restrictive status housing because of the 1990 incidents. Testimony from Warden Brown demonstrated that he willfully failed to comply with the IDOC’s own policies and procedures. He utterly failed to provide training or otherwise ensure that the reviews and appeals were being processed according to policy, state law, and the Constitution. Mr. Isby persuasively posits that Warden Brown and Director Hendrix were reckless in their management styles which resulted in the deprivation of Mr. Isby’s due process rights. Moreover, the Court views Warden Brown’s and Mr. Snyder’s transfer of Mr. Isby to a different prison a month after the Seventh Circuit issued its opinion in this case as a willful and knowing attempt to avoid an order of injunctive relief. After years of confinement at Wabash Valley, the transfer immediately after the Seventh Circuit foreshadowed this Court’s rulings cannot be viewed as motivated by anything but an attempt to avoid some of the penalties. Certainly, no other viable reason for the coincidental “change of scenery” with no change in housing status has been offered.
34

Case 2:12-cv-00116-JMS-MJD Document 274 Filed 12/19/18 Page 35 of 37 PageID #: 3699
The fact that Mr. Isby was conduct free for years at various times while he was kept in solitary confinement is proof that he was being held there for past behavior or because he was belligerent. The purported determinations based on safety and security were again grounded in long ago incidents while not taking into account Mr. Isby’s more recent clear conduct. The 30-day reviews were nothing but a sham. The 90-day reviews were not consistently provided. None of the defendants ever requested 90-day reviews on Mr. Isby’s behalf. Even when Mr. Isby did not violate prison rules for years on end, there was no possibility that he would be released from solitary confinement. Mr. Isby has shown much more than mere sloppiness or inattentiveness on the part of the defendants. See Littler v. Indiana Dept. of Corrections Commissioner, No. 3:11-cv-218, 2013 WL 4551072 at *4 (N.D. Ind. Aug. 28, 2013) (“If all Littler needed to prove [to be awarded punitive damages] was that the defendants were sloppy and inattentive to the procedural requirements inherent in such transfers, he would have easily succeeded. But that is not the test.”). In sum, the record demonstrates that the defendants who participated in the decision-making process or lack thereof held a personal animus against Mr. Isby and showed a reckless or callous indifference to his due process rights.
The Court does not impose punitive damages lightly, but by concluding that an inmate’s due process rights have been willfully violated for years resulting in his indefinite confinement in solitary confinement, they must be awarded. Due process is hardly a new concept. Retaining a human being in solitary confinement for years is unconstitutional unless it is accompanied by meaningful and thoughtful consideration of whether he continues to pose a safety or security risk. Again, the defendants have shown a callous disregard for this well-settled doctrine.
The purpose of punitive damages is to punish and deter future conduct. See Hendrickson v. Cooper, 589 F.3d 887, 894 (7th Cir. 2009); see also Federal Civil Jury Instructions of the
35

Case 2:12-cv-00116-JMS-MJD Document 274 Filed 12/19/18 Page 36 of 37 PageID #: 3700
Seventh Circuit; Constitutional Torts, 42 U.S.C. § 1983, Jury Instruction 7.28 (2017) (“The purposes of punitive damages are to punish a defendant for his or her conduct and to serve as an example or warning to Defendant and others not to engage in similar conduct in the future.”).
Ms. Gilmore is no longer employed with the IDOC. Although she acted willfully in disregarding Mr. Isby’s due process rights, the concept of deterrence does not apply to her as directly as it does to the other defendants.
Director Hendrix, Warden Brown, and Mr. Snyder are still employed by the IDOC. Director Hendrix will continue to be involved in Mr. Isby’s reviews. There is a possibility that Warden Brown and Mr. Snyder could cross paths again with Mr. Isby if either he is transferred back to Wabash Valley or they change jobs. Warden Brown arguably had the most direct highlevel responsibility to protect Mr. Isby’s due process rights and failed to provide leadership in that regard.
Taking these circumstances into consideration, punitive damages are not assessed against Ms. Gilmore. Punitive damages are assessed as follows: Warden Brown, $10,000.00; Director Hendrix, $7,500.00. and Mr. Snyder, $5,000.00.
IV. Conclusion The Court summarizes its findings as follows: a. Defendants willfully violated Mr. Isby’s due process rights by failing to provide
periodic, meaningful review of his long-term placement in solitary confinement; b. Compensatory damages in the amount of $314,000.00 are awarded; c. Punitive damages in the amounts set forth above are awarded; d. Injunctive relief is awarded as set forth above;
36

Case 2:12-cv-00116-JMS-MJD Document 274 Filed 12/19/18 Page 37 of 37 PageID #: 3701
e. Plaintiff’s counsel may seek attorney’s fees consistent with 42 U.S.C. 1997e(d),
which limits fees to 150% of the damages award. See Pearson v. Welborn, 471 F.3d
732, 742 (7th Cir. 2006).
IT IS SO ORDERED.
Date: 12/19/2018
Distribution:
AARON ISBY-ISRAEL 892219 WESTVILLE - CF WESTVILLE CORRECTIONAL FACILITY Inmate Mail/Parcels 5501 South 1100 West WESTVILLE, IN 46391
David A. Arthur OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov
Burnell K Grimes, Jr. FAEGRE BAKER DANIELS LLP Burnell.Grimes@FaegreBD.com
Daniel R. Kelley FAEGRE BAKER DANIELS LLP (Indianapolis) daniel.kelley@faegrebd.com
Melissa Marie Orizondo FAEGRE BAKER DANIELS LLP melissa.orizondo@faegrebd.com
Jason Rauch FAEGRE BAKER DANIELS LLP (Indianapolis) jason.rauch@faegrebd.com
Ryan Joseph Sterling INDIANA ATTORNEY GENERAL ryan.sterling@atg.in.gov
37

 
 Case 2:12-cv-00116-JMS-MJD Document 279 Filed 01/04/19 Page 1 of 3 PageID #: 3715

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT COURT OF INDIANA
TERRE HAUTE DIVISION

AARON ISBY-ISRAEL,

)

)

Plaintiff, )

)

vs.

)

)

JAMES WYNN, et al.,

)

)

Defendants. )

Cause No. 2:12-cv-116-JMS-MJD

SUBMISSION OF PROPOSED PLAN FOR REMOVAL FROM RESTRICTIVE STATUS HOUSING

Defendant Jack Hendrix, Executive Director of Classification, in his official

capacity, submits the following plan for removal of the plaintiff from department-

wide or facility restrictive status housing as directed by the court at docket no. 274,

p. 33.

1. Within two weeks of acceptance of this proposed plan (precise dates of

offender movement are not disclosed for security reasons), plaintiff Aaron Isby,

DOC # 892219, will be transferred to O housing unit at the New Castle Correctional

Facility. This is a general population unit that offers programs for offenders. There

will be ten days of initial admission processing and orientation.

2. The STAND Program (Striving Toward a New Direction) is designed in

phases, each lasting approximately 90 days, with a Treatment Team review after

each phase. Plaintiff would be admitted to that program, a step-down program for

those leaving restrictive status housing.

Case 2:12-cv-00116-JMS-MJD Document 279 Filed 01/04/19 Page 2 of 3 PageID #: 3716
3. The offender handbook is attached for reference. The court also heard testimony about the program during these proceedings. The actual program materials are now in counsel’s possession in scanned form but are not being filed in the absence of a request from the court as they comprise 324MB of files totaling approximately 1,296 pages by counsel’s quick review and count.
Respectfully submitted, CURTIS T. HILL, JR. Attorney General of Indiana Attorney No. 13999-20 By: David A. Arthur, Atty. No. 2461-48 Senior Deputy Attorney General Indiana Government Center South 302 W. Washington St., 5th Floor Indianapolis, IN 46204 Telephone: (317) 232-6286 Fax: (317) 232-7979 David.Arthur@atg.in.gov
2

Case 2:12-cv-00116-JMS-MJD Document 279 Filed 01/04/19 Page 3 of 3 PageID #: 3717

CERTIFICATE OF SERVICE
I certify that on January 4, 2019, a copy of the foregoing Response was filed
electronically using the Court’s CM/ECF system, sending notice to the following
counsel of record who may access this filing using the Court’s system:
Daniel R. Kelley FAEGRE BAKER DANIELS LLP daniel.kelley@faegrebd.com
Burnell K Grimes, Jr. FAEGRE BAKER DANIELS LLP burnell.grimes@faegrebd.com
Jason M. Rauch FAEGRE BAKER DANIELS LLP jason.rauch@faegrebd.com
Melissa Orizondo FAEGRE BAKER DANIELS LLP melissa.orizondo@faegrebd.com
Emily A. Kile-Maxwell FAEGRE BAKER DANIELS LLP Emily.KileMaxwell@FaegreBD.com
David A. Arthur Senior Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

Indiana Government Center South - 5th Floor

302 W. Washington Street

Indianapolis, IN 46204

Phone:

(317) 232-6286

Fax:

(317) 232-7979

Email: David.Arthur@atg.in.gov

3

 
 Case 2:12-cv-00116-JMS-MJD Document 293 Filed 03/04/19 Page 1 of 4 PageID #: 3787

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

AARON ISBY-ISRAEL,

)

)

Plaintiff,

)

)

v.

)

)

JAMES WYNN Director of classification in the )

IDOC,

)

RICHARD BROWN Superintendent at W.V.C.F., )

JACK HENDRIX Asst. Superintendent of

)

W.V.C.F.,

)

JERRY SNYDER unit Team Manager of

)

W.V.C.F.,

)

BEVERLY GILMORE Case Work Manager of )

W.V.C.F.,

)

)

Defendants.

)

No. 2:12-cv-00116-JMS-MJD

ENTRY APPROVING PROPOSED PLAN FOR INJUNCTIVE RELIEF AND RETAINING JURISDICTION OVER ACTION
In the Entry of December 19, 2018, the Court issued its Findings of Fact and Conclusions of Law after conducting a bench trial on September 25, and 26, 2018. Dkt. 274. The Court determined that the defendants willfully violated Mr. Isby’s due process rights by failing to provide periodic, meaningful review of his long-term placement in solitary confinement. Id. In addition to awarding compensatory and punitive damages, the Court advised it would grant injunctive relief and directed Jack Hendrix, Executive Director of Classification, to submit a proposed plan by which Mr. Isby would be removed from department-wide or facility restrictive status housing. Id. The proposed plan was filed and Mr. Isby objected and has offered a counter-proposal. Dkt. 279, dkt. 288, dkt. 289, dkt. 290, dkt. 291.

Case 2:12-cv-00116-JMS-MJD Document 293 Filed 03/04/19 Page 2 of 4 PageID #: 3788
Mr. Hendrix proposes that Mr. Isby be transferred to O housing unit at the New Castle Correctional Facility (“New Castle”), a general population unit that offers programs for inmates. Dkt. 279. There would be ten days of initial admission processing and orientation. Id. Mr. Isby would be admitted to the STAND (“Striving Toward a New Direction”) Program, a step-down program for inmates leaving restrictive status housing. Id. The STAND program at New Castle is run by the GEO Corporation, not the Indiana Department of Correction (“IDOC”). Dkt. 289.
Mr. Isby objects to Mr. Hendrix’s proposed plan on the basis that the completion of the STAND Program would provide opportunities for the defendants to block Mr. Isby’s release into general population. Dkt. 288 at 3, ¶ 7.1 As noted above, however, the New Castle program is not managed by the IDOC. Moreover, O housing unit is a restricted movement unit in general population. Dkt. 288-1. Mr. Isby’s counter-proposal is that he be transferred to a restrictive movement unit at the Indiana State Prison, or any facility other than Wabash Valley Correctional Facility.
Having considered the parties’ proposals, the Court agrees with the defendants in finding that it lacks the authority to order the IDOC to transfer Mr. Isby to a particular prison of the Court’s choice or that of Mr. Isby. After finding that Mr. Isby’s due process were violated, the Court’s sole goal in awarding injunctive relief was to remove Mr. Isby from solitary confinement. Fashioning the injunctive relief for that violation, however, must accord prison administrators “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish,
1 The Court acknowledges Mr. Isby’s additional reasonable concern about the ACT program (part of the STAND program), having a Christian religious component. Dkt. 288, n. 2. He identifies as Hebrew Israelite. The testimony at trial, however, was that the ACT program did not have a religious component. The Court finds no basis on which to delve further into this issue at this time.

Case 2:12-cv-00116-JMS-MJD Document 293 Filed 03/04/19 Page 3 of 4 PageID #: 3789
441 U.S. 520, 547 (1979). The Court must defer to the judgment of the IDOC in making that determination. Mr. Hendrix’s proposal falls well within the discretion afforded prison administrators.
The Court shall retain jurisdiction over this action for a period of two years from the date of issuance of judgment to ensure that the defendants’ placement decisions concerning Mr. Isby comport with due process.
Mr. Hendrix’s proposed plan, dkt. 279, is APPROVED. Final judgment consistent with the Entry of December 19, 2018, dkt. 274, and this Entry shall now issue.
IT IS SO ORDERED.
Date: 3/4/2019
Distribution: AARON ISBY-ISRAEL 892219 WESTVILLE - CF WESTVILLE CORRECTIONAL FACILITY Inmate Mail/Parcels 5501 South 1100 West WESTVILLE, IN 46391 David A. Arthur OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov Daniel R. Kelley FAEGRE BAKER DANIELS LLP (Indianapolis) daniel.kelley@faegrebd.com

Case 2:12-cv-00116-JMS-MJD Document 293 Filed 03/04/19 Page 4 of 4 PageID #: 3790
Emily A. Kile-Maxwell FAEGRE BAKER DANIELS LLP (Indianapolis) emily.kilemaxwell@faegrebd.com
Jason Rauch FAEGRE BAKER DANIELS LLP (Indianapolis) jason.rauch@faegrebd.com

 
 Case 2:12-cv-00116-JMS-MJD Document 294 Filed 03/04/19 Page 1 of 2 PageID #: 3791

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

AARON ISBY-ISRAEL,

)

)

Plaintiff,

)

)

v.

)

)

JAMES WYNN Director of classification in the )

IDOC,

)

RICHARD BROWN Superintendent at W.V.C.F., )

JACK HENDRIX Asst. Superintendent of

)

W.V.C.F.,

)

JERRY SNYDER unit Team Manager of

)

W.V.C.F.,

)

BEVERLY GILMORE Case Work Manager of )

W.V.C.F.,

)

JULIE SNIDER, Counselor of W.V.C.F.,

)

DUSTY RUSSELL, Custody Supervisor of

)

W.V.C.F.,

)

)

Defendants.

)

No. 2:12-cv-00116-JMS-MJD

FINAL JUDGMENT PURSUANT TO FED. R. CIV. PRO. 58

The Court having this day made its Entry directing the entry of final judgment, the Court now enters FINAL JUDGMENT.
For the reasons detailed in the Court’s Order of December 19, 2018, the Court now enters FINAL JUDGMENT in this action in favor of defendants James Wynn, Julie Snider, and Dusty Russell; and as to the remaining claims, in favor of Plaintiff Aaron Isby-Israel and against Defendants Richard Brown, Jack Hendrix, Jerry Snyder, and Beverly Gilmore, as follows:
Compensatory damages of $314,000.00; Punitive damages against Richard Brown, $10,000.00; Jack Hendrix, $7,500.00; and Jerry Snyder, $5,000.00;

Case 2:12-cv-00116-JMS-MJD Document 294 Filed 03/04/19 Page 2 of 2 PageID #: 3792
Injunctive relief as set forth in the Entry Approving Proposed Plan for Injunctive
Relief issued this same day;
Costs and attorney’s fees consistent with 42 U.S.C. §§ 1988 and 1997e(d);
and
Post judgment interest in accordance with 28 U.S.C. § 1961.
Date: 3/4/2019
Laura A. Briggs, Clerk BY: ______________________________
Deputy Clerk, U.S. District Court
Distribution:
AARON ISBY-ISRAEL 892219 WESTVILLE - CF WESTVILLE CORRECTIONAL FACILITY Inmate Mail/Parcels 5501 South 1100 West WESTVILLE, IN 46391
David A. Arthur OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov
Daniel R. Kelley FAEGRE BAKER DANIELS LLP (Indianapolis) daniel.kelley@faegrebd.com
Emily A. Kile-Maxwell FAEGRE BAKER DANIELS LLP (Indianapolis) emily.kilemaxwell@faegrebd.com
Jason Rauch FAEGRE BAKER DANIELS LLP (Indianapolis) jason.rauch@faegrebd.com

 
 Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 1 of 26
APPEAL,MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Terre Haute) CIVIL DOCKET FOR CASE #: 2:12−cv−00116−JMS−MJD

ISBY−ISRAEL v. LEMMON et al Assigned to: Judge Jane Magnus−Stinson Referred to: Magistrate Judge Mark J. Dinsmore
Case in other court: 7th Circuit, 15−03334 − Mandate 7th Circuit, 19−01590
Cause: 42:1983 Prisoner Civil Rights Plaintiff

Date Filed: 05/15/2012 Date Terminated: 03/04/2019 Jury Demand: None Nature of Suit: 555 Prisoner Petitions − Prison Condition Jurisdiction: Federal Question

AARON ISBY−ISRAEL

represented by AARON ISBY−ISRAEL 892219 WESTVILLE − CF WESTVILLE CORRECTIONAL FACILITY Inmate Mail/Parcels 5501 South 1100 West WESTVILLE, IN 46391 PRO SE

V. Defendant JAMES WYNN Director of classification in the IDOC
Defendant RICHARD BROWN Superintendent at W.V.C.F.
Defendant JACK HENDRIX Asst. Superintendent of W.V.C.F.
Defendant JERRY SNYDER unit Team Manager of W.V.C.F.
Defendant BEVERLY GILMORE Case Work Manager of W.V.C.F.
Recruited Counsel

represented by David A. Arthur OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317)232−6286 Fax: (317) 232−7979 Email: David.Arthur@atg.in.gov ATTORNEY TO BE NOTICED
represented by David A. Arthur (See above for address) ATTORNEY TO BE NOTICED
represented by David A. Arthur (See above for address) ATTORNEY TO BE NOTICED
represented by David A. Arthur (See above for address) ATTORNEY TO BE NOTICED
represented by David A. Arthur (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 2 of 26

DANIEL R. KELLEY Recruited Counsel for Plaintiff
Recruited Counsel JASON M. RAUCH
Recruited Counsel EMILY A. KILE−MAXWELL Recruited Counsel for Plaintiff

represented by Daniel R. Kelley FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis) 300 North Meridian Street Suite 2500 Indianapolis, IN 46204 (317) 237−1200 Fax: (317) 237−1000 Email: daniel.kelley@faegredrinker.com ATTORNEY TO BE NOTICED
represented by Jason Rauch FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis) 300 North Meridian Street Suite 2500 Indianapolis, IN 46204 317 237−0300 Fax: 317 237−1000 Email: jason.rauch@faegredrinker.com ATTORNEY TO BE NOTICED
represented by Emily A. Kile−Maxwell FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis) 300 North Meridian Street Suite 2500 Indianapolis, IN 46204 317 237−0300 Fax: 317 237−1000 Email: emily.kilemaxwell@faegredrinker.com ATTORNEY TO BE NOTICED

Date Filed 05/15/2012
05/15/2012 05/15/2012 05/15/2012 05/15/2012 05/15/2012 05/16/2012 05/23/2012 05/23/2012

# Docket Text
1 COMPLAINT against RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN, filed by AARON ISBY−ISRAEL. (Attachments: # 1 Cover letter)(MSD) (Entered: 05/16/2012)
2 MOTION for Leave to Proceed in forma pauperis, filed by Plaintiff AARON ISBY−ISRAEL. (MSD) (Entered: 05/16/2012)
3 MOTION for Temporary Restraining Order, filed by Plaintiff AARON ISBY−ISRAEL. (MSD) (Entered: 05/16/2012)
4 BRIEF/MEMORANDUM in Support re 3 MOTION for Temporary Restraining Order, filed by Plaintiff AARON ISBY−ISRAEL. (MSD) (Entered: 05/16/2012)
5 REQUEST (Plaintiff's First) for Production of Documents, filed by Plaintiff AARON ISBY−ISRAEL.(MSD) (Entered: 05/16/2012)
6 REQUEST (Plaintiff's First) for Admissions, filed by Plaintiff AARON ISBY−ISRAEL.(MSD) (Entered: 05/16/2012)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (MSD) (Entered: 05/16/2012)
8 DEMAND for Trial by Jury, filed by Plaintiff AARON ISBY−ISRAEL. (JKS) (Entered: 05/24/2012)
9 CONSENT to Jurisdiction by US Magistrate Judge by AARON ISBY−ISRAEL. (JKS) (Entered: 05/24/2012)

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 3 of 26

06/13/2012 07/05/2012 09/10/2012
09/24/2012 09/24/2012 11/15/2012
11/15/2012 12/06/2012 12/06/2012 12/06/2012 12/06/2012 12/06/2012 12/14/2012 01/14/2013

10 Entry Discussing Selected Matters − granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion for Temporary Restraining Order. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/13/2012. (RSF) (Entered: 06/13/2012)
11 AMENDED COMPLAINT against RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN, filed by AARON ISBY−ISRAEL.(JKS) (Entered: 07/05/2012)
12 Entry Discussing Amended Complaint and Directing Further Proceedings − The 26−page amended complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). Any claims thought to be brought by plaintiff Aaron Isby−Israel on behalf of other inmates are dismissed without prejudice. The claim that the defendants interfered with the grievance process in order to prevent the plaintiff from filing a lawsuit is dismissed for failure to state a claim upon which relief may be granted. Any claims based on international law are dismissed. The plaintiff shall have through October 1, 2012, in which to file a statement of remaining claims. The statement of remaining claims should identify the circumstances associated with the alleged violation of plaintiff's Eighth Amendment and Due Process rights and for each such alleged violation, identify what role any of the defendants played in personally causing the alleged violation. If the plaintiff intended to advance additional claims he should restate such claims in his statement of remaining claims. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/10/2012.(RSF) Modified on 9/11/2012 (RSF). (Entered: 09/11/2012)
13 **REDOCKETED AS SECOND AMENDED COMPLAINT − SEE DOCKET ENTRY 16 ** RESPONSE / Statement of Remaining Claims re 12 Entry Directing Further Proceedings, filed by Plaintiff AARON ISBY−ISRAEL. (JKS) Modified on 11/15/2012 (RSF). (Entered: 09/25/2012)
16 SECOND AMENDED COMPLAINT against All Defendants, filed by AARON ISBY−ISRAEL.(RSF) (Entered: 11/15/2012)
14 Entry Discussing Remaining Claims And Directing Further Proceedings − The statement of remaining claims filed on September 24, 2012, is understood to be the operative pleading in this action. The clerk is directed to redocket that statement 13 as the second amended complaint. The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and serve process on the defendants Bruce Lemmon, James Wynn, Stanley Knight, Richard Brown, Jack Hendrix, Jerry Snyder, Beverly Gilmore, Julie Snider and Dusty Russell in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the second amended complaint, applicable forms and this Entry. (See Entry.) Copies mailed pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 11/15/2012.(RSF) (Entered: 11/15/2012)
15 NOTICE of Lawsuit & Waiver Issued by Clerk, upon 1) Bruce Lemmon, 2) James Wynn, 3) Stanley Knight, 4) Richard Brown, 5) Jack Hendrix, 6) Jerry Snyder, 7) Beverly Gilmore, 8) Julie Snider and 9) Dusty Russell. (RSF) (Entered: 11/15/2012)
17 WAIVER OF SERVICE Returned Executed JERRY SNYDER waiver sent on 11/15/2012, signed on 11/20/12. (RSF) (Entered: 12/06/2012)
18 WAIVER OF SERVICE Returned Executed BEVERLY GILMORE waiver sent on 11/15/2012, signed on 11/20/12. (RSF) (Entered: 12/06/2012)
19 WAIVER OF SERVICE Returned Executed JULIE SNIDER waiver sent on 11/15/2012, signed on 11/20/12. (RSF) (Entered: 12/06/2012)
20 WAIVER OF SERVICE Returned Executed RICHARD BROWN waiver sent on 11/15/2012, signed on 12/4/12. (RSF) (Entered: 12/06/2012)
21 WAIVER OF SERVICE Returned Executed DUSTY RUSSELL waiver sent on 11/15/2012, signed on 11/26/12. (RSF) (Entered: 12/06/2012)
22 WAIVER OF SERVICE Returned Executed BRUCE LEMMON waiver sent on 11/15/2012, signed on 12/11/12. (RSF) (Entered: 12/14/2012)
23 NOTICE of Appearance by Grant E. Helms on behalf of Defendants RICHARD BROWN, BEVERLY GILMORE, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER. (Helms, Grant) (Entered: 01/14/2013)

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 4 of 26

01/14/2013 01/14/2013 01/15/2013 01/28/2013 02/11/2013 02/11/2013 02/21/2013 03/27/2013 03/27/2013
04/09/2013 04/10/2013
04/10/2013 04/16/2013 04/19/2013 04/22/2013 04/29/2013

24 First MOTION for Extension of Time to February 11, 2013 , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER. (Attachments: # 1 Text of Proposed Order Granting Defendants' Mot. for Initial Extension of Time)(Helms, Grant) (Entered: 01/14/2013)
25 NOTICE of Appearance by David A. Arthur on behalf of Defendants RICHARD BROWN, BEVERLY GILMORE, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER. (Arthur, David) (Entered: 01/14/2013)
26 ORDER granting 24 Motion for Extension of Time to File response to complaint to 2/11/2013. (copy to plaintiff via US Mail) Signed by Judge Jane Magnus−Stinson on 1/15/2013. (SMD) (Entered: 01/15/2013)
27 Brief / SUPPLEMENTAL Complaint, filed by AARON ISBY−ISRAEL. (JKS) (Entered: 01/29/2013)
28 Defendants' ANSWER to 16 Amended Complaint And Affirmative Defenses, filed by RICHARD BROWN, BEVERLY GILMORE, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER.(Helms, Grant) (Entered: 02/11/2013)
29 MOTION to Strike Supplemental Complaint, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER. (Helms, Grant) (Entered: 02/11/2013)
30 RESPONSE in Opposition re 29 MOTION to Strike Supplemental Complaint, filed by Plaintiff AARON ISBY−ISRAEL. (JKS) (Entered: 02/21/2013)
31 Entry Discussing Motion to Strike Supplemental Complaint − The defendants' motion to strike supplemental complaint 29 is granted. The operative pleading in this action remains the "second amended complaint" filed on September 24, 2012. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 3/27/2013. (RSF) (Entered: 03/27/2013)
32 Entry Directing Further Proceedings − The defendants shall have through April 29, 2013, in which to either 1) file a dispositive motion in support of their affirmative defense that the plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit, or 2) withdraw that affirmative defense. If such a motion is filed, the plaintiff shall have thirty (30) days in which to respond. The defendants shall then have fifteen (15) days in which to reply. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 3/27/2013.(RSF) (Entered: 03/27/2013)
33 RESPONSE / Objection to the Court's 31 Order on Motion to Strike Supplemental Complaint, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(JKS) (Entered: 04/10/2013)
34 Entry Directing Re−Issuance of Process − The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to re−issue and serve process on defendants James Wynn, Stanley Knight, and Jack Hendrix in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the second amended complaint (docket 16), applicable forms and this Entry. Copies distributed pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 4/10/2013.(RSF) (Entered: 04/10/2013)
35 SECOND NOTICE of Lawsuit & Waiver Issued by Clerk, upon 1) James Wynn, 2) Stanley Knight, and 3) Jack Hendrix. (RSF) Modified on 4/10/2013 (RSF). (Entered: 04/10/2013)
36 WAIVER OF SERVICE Returned Executed JACK HENDRIX waiver sent on 4/10/2013, signed on 4/12/13. (RSF) (Entered: 04/16/2013)
38 MOTION For Relief From Order of Sua Sponte Dismissal and Improper Substitution of Amended Complaint, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(JKS) (Entered: 04/22/2013)
37 WAIVER OF SERVICE Returned Executed − STANLEY KNIGHT waiver sent on 4/10/2013, signed on 4/17/13. (RSF) (Entered: 04/22/2013)
39 NOTICE of Appearance by Grant E. Helms on behalf of Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Helms, Grant) (Entered: 04/29/2013)

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 5 of 26

04/29/2013 05/22/2013 05/22/2013 06/14/2013 06/14/2013 06/14/2013 06/20/2013
06/21/2013 06/26/2013
06/26/2013 06/26/2013 07/30/2013
09/23/2013

40 NOTICE of Withdrawal of Exhaustion Defense, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN (Helms, Grant) (Entered: 04/29/2013)
41 Entry Concerning Selected Matters − The plaintiff's request to vacate the ruling of March 27, 2013 [Dkt. 33], striking the supplemental complaint, is denied. Plaintiff's "motion for relief from order of sua sponte dismissal and improper substitution of amended complaint" [Dkt. 38] is denied. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 5/22/2013. (RSF) (Entered: 05/22/2013)
42 ENTRY LIFTING PARTIAL STAY AND SETTING PRETRIAL SCHEDULE − The defendants have withdrawn their affirmative defense of failure to exhaust administrative remedies. The partial stay imposed on March 27, 2013, is lifted. Discovery due by 7/26/2013. (See Entry for additional dates and information.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 5/22/2013.(RSF) (Entered: 05/22/2013)
43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendants STANLEY KNIGHT, BRUCE LEMMON. (Attachments: # 1 Text of Proposed Order)(Helms, Grant) (Entered: 06/14/2013)
44 BRIEF/MEMORANDUM in Support re 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendants STANLEY KNIGHT, BRUCE LEMMON. (Helms, Grant) (Entered: 06/14/2013)
45 MOTION to Stay Discovery, filed by Defendants STANLEY KNIGHT, BRUCE LEMMON. (Attachments: # 1 Text of Proposed Order)(Helms, Grant) (Entered: 06/14/2013)
46 Entry Concerning Selected Matters − The motion to stay discovery filed by defendants Lemmon and Knight [dkt. 45] is granted to the extent that discovery is stayed as to them until a ruling is made on the motion to dismiss. The plaintiff shall have through July 15, 2013, in which to respond to the motion to dismiss filed by defendants Lemmon and Knight. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/20/2013. (RSF) (Entered: 06/20/2013)
47 MOTION for Clarification, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(JD) (Entered: 06/24/2013)
48 Entry Concerning Objection to E−Filing Program − The plaintiff's motion for clarification [dkt. 47] is granted to the extent that the Court has confirmed that plaintiff's participation in the E−Filing Program is mandatory and is denied to the extent that his objection to the E−Filing Program is overruled. Additionally, the Court finds nothing in the plaintiff's objection that would support an exception to his participation. The clerk shall also docket this Entry in 1:13−mc−0056−RLY. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/26/2013. (RSF) (Entered: 06/26/2013)
49 MOTION for Leave to File AMENDED COMPLAINT, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Amended Complaint, # 2 Envelope)(JKS) (Entered: 06/27/2013)
50 Correspondence REQUESTING COPY of Motion for Leave and Amended Complaint, filed by AARON ISBY−ISRAEL. Copy/Copies provided via US Mail. (Attachments: # 1 Envelope) (JKS) (Entered: 06/27/2013)
51 Entry Concerning Selected Matters − The unopposed motion to dismiss for failure to state a claim upon which relief can be granted filed by defendants Lemmon and Knight [dkt. 43] is granted for the reasons set forth in the motion. The plaintiff's motion for leave to file a third amended complaint [dkt. 49] is denied. The plaintiff's motion for leave to file a third amended complaint [dkt. 49] is denied. The deadline to file dispositive motions is extended through September 23, 2013. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 7/30/2013. (RSF) (Entered: 07/31/2013)
52 MOTION for Summary Judgment , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Attachments: # 1 Affidavit Beverley Gilmore, # 2 OIS Conduct Summary)(Helms, Grant) (Entered: 09/23/2013)

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 6 of 26

09/23/2013 09/23/2013 10/10/2013 10/10/2013 10/10/2013 10/10/2013 10/24/2013 10/31/2013 11/07/2013 11/14/2013
05/16/2014 05/19/2014 06/24/2014
08/05/2014
08/11/2014

53 BRIEF/MEMORANDUM in Support re 52 MOTION for Summary Judgment , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Helms, Grant) (Entered: 09/23/2013)
54 NOTICE of LR 56−1 Summary Judgment Practice, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN (Helms, Grant) (Entered: 09/23/2013)
55 Statement of Disputed and Undisputed Material Facts re 52 MOTION for Summary Judgment , filed by Plaintiff AARON ISBY−ISRAEL c/s. (MAC) (Entered: 10/11/2013)
56 RESPONSE (Motion) in Opposition re 52 MOTION for Summary Judgment , filed by Plaintiff AARON ISBY−ISRAEL c/s. (MAC) (Entered: 10/11/2013)
57 MEMORANDUM of Law in support of RESPONSE in Opposition re 52 MOTION for Summary Judgment , filed by Plaintiff AARON ISBY−ISRAEL c/s. (MAC) (Entered: 10/11/2013)
58 AFFIDAVIT in Support of Response in Opposition to Motion re 52 MOTION for Summary Judgment , filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(MAC) (Entered: 10/11/2013)
59 REPLY in Support of Motion re 52 MOTION for Summary Judgment , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Helms, Grant) (Entered: 10/24/2013)
60 Surreply c/s re 52 MOTION for Summary Judgment , filed by Plaintiff AARON ISBY−ISRAEL. (DW) (Entered: 10/31/2013)
61 MOTION to Disqualify Presiding Judge c/s, filed by Plaintiff AARON ISBY−ISRAEL. (DW) (Entered: 11/07/2013)
62 ENTRY − denying 61 Motion to disqualify judge because there is no basis for recusal from this case. The clerk shall include a copy of the docket sheet with the plaintiff's copy of this Entry. The docket reflects that the plaintiff's surreply was filed on October 31, 2013. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 11/14/2013. (RSF) (Entered: 11/14/2013)
63 MOTION to Withdraw Attorney Appearance , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Attachments: # 1 Text of Proposed Order)(Helms, Grant) (Entered: 05/16/2014)
64 ORDER granting 63 Motion to Withdraw Attorney Appearance. Attorney Grant E. Helms withdrawn. Signed by Magistrate Judge Mark J. Dinsmore on 5/19/2014. Copy to Plaintiff via U.S. Mail. (NMT) (Entered: 05/19/2014)
65 Entry Granting Defendants' Motion for Summary Judgment and Directing Further Proceedings − For the reasons explained in this Entry, the defendants' motion for summary judgment on the plaintiff's due process claim [dkt. 52] is granted. No partial final judgment shall issue at this time. This ruling leaves pending the Eighth Amendment claim. The parties shall have through July 23, 2014, in which to propose a schedule for resolving this matter, whether by settlement, trial or further dispositive motion. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/24/2014. (RSF) (Entered: 06/24/2014)
66 ENTRY DIRECTING PLAINTIFF TO SHOW CAUSE − In the Entry of June 24, 2014, the parties were given a July 23, 2014, deadline to propose a schedule for resolving the remaining Eighth Amendment claim in this action. Neither party has complied with this directive. The plaintiff shall have through August 19, 2014, in which to show cause why the Court should not dismiss the Eighth Amendment claim as having been abandoned. Failure to show cause will result in the dismissal of the action with prejudice and the issuance of final judgment consistent with the 65 Entry of June 24, 2014, granting summary judgment to the defendants on the plaintiff's due process claim. Copy mailed via US Mail. Signed by Judge Jane Magnus−Stinson on 8/5/2014. (ADH) (Entered: 08/05/2014)
67 MOTION to Show Cause, filed by Plaintiff AARON ISBY−ISRAEL. (DW) (Entered: 08/12/2014)

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 7 of 26

08/11/2014 08/14/2014 08/14/2014
08/14/2014
08/14/2014 08/19/2014 08/22/2014
08/28/2014 09/08/2014 09/15/2014 09/15/2014 09/15/2014 09/16/2014

68 MOTION for Clerk's Entry of Default, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Affidavit for Entry of Default)(DW) (Entered: 08/12/2014)
69 MOTION to Show Cause, filed by Plaintiff AARON ISBY−ISRAEL. (JKS) (Entered: 08/14/2014)
70 ENTRY − The plaintiff has responded to the order to show cause issued on August 5, 2014. The plaintiff has not abandoned his Eighth Amendment claim. The plaintiff's 67 motion to show cause is granted to the extent that the order to show cause is discharged. the plaintiff's 68 motion for entry of default is denied because the defendants are not in default. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 8/14/2014. (ADH) (Entered: 08/14/2014)
71 ***PLEASE DISREGARD − DISCHARGED AT 74 *** ENTRY DIRECTING DEFENDANTS TO SHOW CAUSE AND COMPLY WITH COURT ORDER − In the Entry of June 24, 2014, the parties were given through July 23, 2014, in which to propose a schedule for resolving the remaining Eighth Amendment claim. No party responded to the Court's order. The plaintiff has explained that he received the Entry of June 24, 2014, after the deadline had passed. The defendants have neither complied with the Entry nor provided an explanation for that failure. The defendants shall now have through August 20, 2014, in which to 1) show cause why they have failed to comply with the June 24, 2014, Entry, and 2) comply with the directions in Part IV. B. of the June 24, 2014, Entry. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 8/14/2014. (ADH) Modified on 8/22/2014 (RSF). (Entered: 08/14/2014)
72 ORDER denying Plaintiff's 69 Motion. The plaintiff's second motion to show cause, filed on August 14, 2014, is denied as duplicative of the motion he filed on August 11, 2014. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 8/14/2014. (ADH) (Entered: 08/15/2014)
73 RESPONSE to court's order to show cause and for proposed schedule for resolving this matter, re 71 Order to Show Cause, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 08/19/2014)
74 ENTRY − The defendants' order to show cause is discharged. The defendants shall have additional time, through October 7, 2014, in which to take the plaintiff's deposition. The defendants shall then have through November 26, 2014, in which to file an additional motion for summary judgment addressing the plaintiff's claim of deliberate indifference under the Eighth Amendment to the Constitution. No enlargements of these deadlines will be granted absent extraordinary circumstances. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 8/22/2014.(RSF) (Entered: 08/22/2014)
75 MOTION FOR LEAVE TO DEPOSE DEFENDANTS, filed by Plaintiff AARON ISBY−ISRAEL. c/s. (ADH) (Main Document 75 replaced on 9/2/2014) (ADH). (Entered: 09/02/2014)
76 ENTRY − The defendants shall have through September 16, 2014, in which to respond to the plaintiff's motion to depose defendants. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/8/2014. (ADH) (Entered: 09/08/2014)
77 NOTICE of Appearance by David A. Arthur on behalf of Defendants JACK HENDRIX, JAMES WYNN. (Arthur, David) (Entered: 09/15/2014)
78 MOTION for Extension of Time to file answer to second amended complaint, filed by Defendants JACK HENDRIX, JAMES WYNN. (Attachments: # 1 Exhibit Proposed Answer, # 2 Text of Proposed Order)(Arthur, David) (Entered: 09/15/2014)
79 RESPONSE in Opposition re 75 MOTION to depose defendants, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 09/15/2014)
80 ORDER granting Defendants' 78 Motion for Extension of Time. Wynn and Hendrix may file and serve a signed and dated version of the answer tendered with their motion within 10 days of the date of this order. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/16/2014. (AH) (Entered: 09/16/2014)

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 8 of 26

09/16/2014
09/16/2014 09/19/2014 09/23/2014
09/23/2014 09/24/2014 10/09/2014 10/17/2014 11/26/2014 01/07/2015
01/14/2015
01/21/2015 01/21/2015 01/22/2015

81 ORDER denying Plaintiff's 75 Motion for Leave to Depose Defendants. The plaintiff has not explained why his written interrogatories were insufficient to obtain needed information or why he could not have served requests for admissions under Rule 36 of the Federal Rules of Civil Procedure. Accordingly, the plaintiff's motion for leave to depose defendants is denied to the extent he seeks leave to take depositions without having to incur the costs. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/16/2014. (AH) (Main Document 81 replaced on 9/16/2014) (AH). (Entered: 09/16/2014)
82 ANSWER to 16 Amended Complaint , filed by JACK HENDRIX, JAMES WYNN.(Arthur, David) (Entered: 09/16/2014)
83 MOTION in Opposition to Belated Answer of Defendants WYNN and HENDRIX, filed by Plaintiff AARON ISBY−ISRAEL. c/s. (AH) (Entered: 09/19/2014)
84 ENTRY − The plaintiff's motion in opposition to the belated answer filed by defendants Hendrix and Wynn seeks a default judgment. Although the Court acknowledges the plaintiff's objection to the late answer, no prejudice has resulted and the defendants are not in default. Accordingly, the plaintiff's objection is overruled and his motion for a default judgment [dkt. 83] is denied. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/23/2014. (RSF) (Entered: 09/23/2014)
85 MOTION to take Judicial Notice, filed by Plaintiff AARON ISBY−ISRAEL. c/s. (AH) (Entered: 09/23/2014)
86 ENTRY − denying 85 Motion to take judicial notice. It is not the plaintiff's nor the Court's decision to make as to whether defendant Gilmore shall remain represented by the Indiana Attorney General's office. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/24/2014. (RSF) (Entered: 09/24/2014)
87 MOTION to Appoint Counsel to take Deposition of the Defendants, filed by Plaintiff AARON ISBY−ISRAEL. c/s. (AH) (Entered: 10/09/2014)
88 ENTRY − denying 87 plaintiff's motion to appoint counsel to take depositions of the defendants, filed on October 9, 2014, has been considered. [Dkt. 87.] The plaintiff's earlier motion to take depositions without incurring the costs thereof was denied in the Entry of September 16, 2014. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 10/17/2014. (RSF) (Entered: 10/17/2014)
89 NOTICE that no summary judgment motion will be filed, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN (Arthur, David) (Entered: 11/26/2014)
90 TRIAL SETTING AND NOTICE OF FINAL PRETRIAL CONFERENCE − Final Pretrial Conference set for 6/26/2015 at 9:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Jury Trial set for 7/27/2015 at 9:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Parties are further reminded to review the undersigned's Practices and Procedures, available on the internet at http://www.insd.uscourts.gov/sites/insd/files/Courtroom%20Procedures%20JMS.pdf.Signed by Judge Jane Magnus−Stinson on 1/7/2015.(RSF) Modified on 1/8/2015 − copy to plaintiff via US Mail (RSF). (Entered: 01/07/2015)
91 Entry Requesting Appearance of Counsel Pursuant to Local Rule 4−6 − Mr. Kenneth T. Roberts is requested to represent the plaintiff in the above action. This representation shall continue until final judgment is entered unless otherwise modified by written order. The Court requests that Mr. Roberts enter his appearance at his earliest convenience. Copies sent pursuant to distribution list via US Mail. Signed by Judge Jane Magnus−Stinson on 1/14/2015. (AH) (Entered: 01/14/2015)
92 NOTICE of Appearance by Kenneth T. Roberts on behalf of Plaintiff AARON ISBY−ISRAEL. (Roberts, Kenneth) (Entered: 01/21/2015)
93 NOTICE of Appearance by Adam Lenkowsky on behalf of Plaintiff AARON ISBY−ISRAEL. (Lenkowsky, Adam) (Entered: 01/21/2015)
94 SCHEDULING ORDER: Settlement Conference set for 5/11/2015 at 09:00 AM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate

Case: 2:12-cv-00116-JMS-MJD As of: 02/23/2020 08:17 PM EST 9 of 26

Judge Mark J. Dinsmore. **SEE ORDER FOR DETAILS** Signed by Magistrate Judge Mark J. Dinsmore on 1/22/2015. (AH) (Entered: 01/23/2015)

03/10/2015 95 MOTION for Temporary Restraining Order, filed by Plaintiff AARON ISBY−ISRAEL. (RSF) (Entered: 03/11/2015)

03/16/2015 96 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction, filed Pro Se by Plaintiff AARON ISBY−ISRAEL. (AH) (Entered: 03/16/2015)

03/16/2015

97 ORDER denying 95 Motion for Emergency Temporary Restraining Order and Injunction. The plaintiff's motion for emergency temporary restraining order and injunction [dkt. 95] is denied because he has not shown that he will experience irreparable harm without a preliminary injunction. Finally, the plaintiff is now represented by counsel, who was recruited at his request, and he should direct future concerns through counsel. Future pro se filings may be stricken. **SEE ORDER** Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 3/16/2015. (AH) Modified on 3/17/2015 (AH). (Entered: 03/17/2015)

03/17/2015

98 ORDER denying 96 Motion for TRO and denying 96 Motion for Preliminary Injunction. The plaintiff has shown no irreparable harm and he has not shown that he is likely to succeed on the merits. Such claims do not belong in this action. It is even doubtful whether the mail at issue constitutes legal mail. Petitioner is reminded he is represented by counsel and any future pro se filings may be stricken. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 3/17/2015. (AH) (Entered: 03/17/2015)

03/17/2015

99 ORDER to Make Inmate Available − ORDERED to make Aaron Isby−Israel available to participate in a telephonic settlement conference at the time and date specified in this Order. Wabash Valley Correctional Facility has provided the call−in number to the Court. Inmate: Aaron Isby−Israel DOC # 892219 Date: May 11, 2015 Time: 9:00 a.m. [EST] Expected Duration of Court Proceeding: 3 hours. Copy sent pursuant to distribution list. Signed by Magistrate Judge Mark J. Dinsmore on 3/17/2015.(AH) (Entered: 03/18/2015)

04/17/2015 100

**RESCINDED PER 107 ** SCHEDULING ORDER: Final Pretrial Conference set for 6/26/2015 at 09:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. **SEE ORDER FOR IMPORTANT DETAILS** Signed by Judge Jane Magnus−Stinson on 4/17/2015. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(AH) Modified on 6/1/2015 (AH). (Entered: 04/17/2015)

05/06/2015 101

ORDER TO SHOW CAUSE − The parties have not submitted a joint draft settlement agreement. This does not comply with the Court's order, which required the draft settlement agreement to be submitted on or before Monday, May 4, 2015. Accordingly, counsel for the parties are directed to confer by telephone or in person and to prepare and submit on or before Thursday, May 7, 2015 a draft settlement agreement that complies with the Court's prior order. If the draft settlement agreement is not submitted as required herein, then counsel for the parties are ordered to show cause on or before Friday, May 8, why they should not be sanctioned for their failure to comply with the Court's orders. The parties' confidential settlement statements were due on or before Monday, May 4, 2015, but the parties have not submitted such statements. Accordingly, the parties are directed to submit confidential settlement statements that comply with the Court's prior order on or before Thursday, May 7, 2015. If such statements are not submitted, the parties are ordered to show cause on or before Friday, May 8, 2015 why they should not be sanctioned for failure to comply with the Court's order. **SEE ORDER** Signed by Magistrate Judge Mark J. Dinsmore on 5/6/2015.(AH) (Entered: 05/06/2015)

05/11/2015 102

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 5/11/2015. Plaintiff appeared telephonically and his counsel personally appeared. Defendants appeared in person and by counsel for a settlement conference. Settlement was not achieved. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 05/11/2015)

05/18/2015 103 ORDER to PRODUCE INMATE. Superintendent of Wabash Valley Correctional Facility ordered to produce AARON ISBY−ISRAEL for court proceeding on 6/26/2015. Electronic Notice to USM.**SEE ORDER** Copies sent pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 5/18/2015.(AH) (Entered: 05/18/2015)

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05/29/2015 104 Unopposed MOTION for Waiver of Trial by Jury, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Lenkowsky, Adam) (Entered: 05/29/2015)

05/30/2015 105 NOTICE of waiver of jury trial, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN (Arthur, David) (Entered: 05/30/2015)

05/30/2015 106 Amended MOTION for Waiver of Trial by Jury, filed by Plaintiff AARON ISBY−ISRAEL. (Lenkowsky, Adam) (Entered: 05/30/2015)

06/01/2015 107

ORDER − The plaintiff's amended unopposed motion for waiver of trial by jury [dkt. 106] is granted. The prior unopposed motion for waiver of trial by jury [dkt. 104] is denied as moot. The parties have waived their right to trial by jury. The final pretrial conference remains set for June 26, 2015, at 9:00 a.m. in Room 307 and the bench trial will be conducted on July 27, 2015, at 9:00 a.m. in Room 307, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana, before Judge Jane Magnus−Stinson. The Final Pretrial Order issued on April 17, 2015 (dkt. 100), is rescinded. **SEE ORDER FOR IMPORTANT DEADLINES** Signed by Judge Jane Magnus−Stinson on 6/1/2015. (AH) (Entered: 06/01/2015)

06/12/2015 108 Witness List , filed by Plaintiff AARON ISBY−ISRAEL, Exhibit List , filed by Plaintiff AARON ISBY−ISRAEL. (Lenkowsky, Adam) (Entered: 06/12/2015)

06/12/2015 109

Witness List , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN, Exhibit List , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 06/12/2015)

06/12/2015 110 OBJECTION to witness Lincoln Love and plaintiff's proposed exhibits 1, 2, 4 and 5 by All Defendants. (Arthur, David) (Entered: 06/12/2015)

06/22/2015 111 Proposed Findings of Fact by AARON ISBY−ISRAEL. (Lenkowsky, Adam) (Entered: 06/22/2015)

06/22/2015 112 Proposed Findings of Fact by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 06/22/2015)

06/23/2015 113 NOTICE of Appearance by Nikki G. Ashmore on behalf of Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Ashmore, Nikki) (Entered: 06/23/2015)

06/29/2015 114

MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Final Pretrial Conference held on 6/26/2015, plaintiff Isby−Israel appeared in person and by counsel and the defendants appeared by counsel for the final pretrial conference in this matter. The parties shall file all stipulations of fact and as to authenticity and admissibility of exhibits not later than July 20, 2015. (SEE ORDER FOR MORE DETAILS.) Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 06/29/2015)

06/29/2015 115

ENTRY Clarifying Claim for Injunctive Relief − This Entry clarifies the ruling in paragraph 1 of docket 51 so that it is not construed to mean that the plaintiff cannot obtain injunctive relief. STANLEY KNIGHT (interim Deputy Commissioner in the IDOC) and BRUCE LEMMON (Commissioner of IDOC) terminated. Signed by Judge Jane Magnus−Stinson on 6/29/2015.(AH) (Entered: 06/29/2015)

06/29/2015 116

ENTRY Ordering Photographic Evidence − In lieu of incurring the inconvenience, cost, and security issues presented by a site visit, the Court requests that counsel for the defendants provide at trial video footage of the plaintiff's cell and immediate surroundings in the prison. Counsel for the defendants shall allow counsel for the plaintiff to view the video (and any still photographs the defendants wish to take) before trial. The parties will be afforded an opportunity to object to the introduction of the evidence. **SEE ENTRY** Signed by Judge Jane Magnus−Stinson on 6/29/2015.(AH) (Entered: 06/29/2015)

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06/29/2015 117 ORDER to PRODUCE INMATE. Superintendent of Wabash Valley Correctional Facility ordered to produce AARON ISBY−ISRAEL for court proceeding on 7/27/2015. Electronic Notice to USM. **SEE ORDER FOR DETAILS**. Copies sent pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 6/29/2015.(AH) (Entered: 06/29/2015)

06/30/2015 118 Plaintiff's REBUTTAL and/or OBJECTION to Defendant's 112 Proposed Findings of Fact filed by BEVERLY GILMORE, JERRY SNYDER, JAMES WYNN, JACK HENDRIX, JULIE SNIDER, DUSTY RUSSELL, RICHARD BROWN, by AARON ISBY−ISRAEL. (Attachments: # 1 Exhibit)(RSF) (Entered: 06/30/2015)

07/02/2015 119

ENTRY − On June 30, 2015, the plaintiff filed on his own behalf a rebuttal and/or objection to the defendants' proposed findings of fact. The plaintiff is represented by counsel. The proper manner and time to raise such objections are 1) through counsel, and 2) at the conclusion of the evidence in final argument. The plaintiff's June 30, 2015, filing, therefore, is of no effect at the present. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 7/2/2015.(AH) (Entered: 07/02/2015)

07/02/2015 120

ENTRY Overruling Defendants' Objection to Witness L. Love − The defendants' objection to Lincoln Love as a witness is overruled. The Court will allow testimony from Mr. Love because it may be relevant to the nature of the conditions and duration of Mr. Isby−Israel's confinement in segregation. Moreover, the defendants' objection goes more to the weight of the evidence rather than to its admissibility. Signed by Judge Jane Magnus−Stinson on 7/2/2015.(AH) (Entered: 07/02/2015)

07/06/2015 121 MOTION for Leave to File supplemental witness and exhibit list, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Attachments: # 1 Text of Proposed Order)(Arthur, David) (Entered: 07/06/2015)

07/07/2015 122 Amended MOTION for Leave to File supplemental witness and exhibit lists, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 07/07/2015)

07/07/2015 123

ENTRY on Amended Motion to Supplement − The defendants' amended motion for leave to supplement their witness and exhibit lists [dkt. 122] is granted. The defendants' witness list is supplemented to include Correctional Officer Jaymison Bennett, Sgt. Frank Busby, Sgt. Steven Gardner, and Nurse Amy C. Reed, R.N. The supplemented witnesses shall only testify as to the events related to December 15, 2014. The defendants' exhibit list is supplemented to include a CD recording of the on−range security cameras on December 15, 2014. The defendants' motion for leave [dkt. 121] is denied as moot. Signed by Judge Jane Magnus−Stinson on 7/7/2015. (AH) (Entered: 07/07/2015)

07/09/2015 124 SCHEDULING ORDER: Status Conference set for 7/10/2015 at 02:30 PM in Telephonic before Judge Jane Magnus−Stinson. Counsel shall call the Court at 317−229−3670. Signed by Judge Jane Magnus−Stinson on 7/9/2015.(AH) (Entered: 07/09/2015)

07/10/2015 125

MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Status Conference held on 7/10/2015. This cause came before the court for a telephonic status conference on July 10, 2015. The parties participated by counsel. Counsel for the defendants requested further clarification on the Court's Entry Ordering Photographic Evidence, dkt. 116. As of a result of the discussion during the conference, counsel for the defendants are directed to provide at trial, and to counsel for the plaintiff before trial, the following: 1. Photographs showing the interior of the plaintiff's or an exemplary 2nd story cell; 2. Video and photographs (without flash) showing the lighting in and around the plaintiff's or an exemplary cell at 4 AM, 10 AM, 4 PM, and 10 PM; 3. Photographs of the two recreation areas that the plaintiff might use; 4.Photographs of the shower on the plaintiff's range; and 5. Video of how the plaintiff gets his food, showing any interaction with other individuals, for at least one meal. This evidence may be presented by CD at trial. Counsel for the defendants shall also provide to counsel for the plaintiff a standard menu of food that the plaintiff receives. Signed by Judge Jane Magnus−Stinson. (MRI) (Entered: 07/10/2015)

07/20/2015 126 Unopposed MOTION for Extension of Time to July 21, 2015 to File Stipulations, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Lenkowsky, Adam) (Entered: 07/20/2015)

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07/20/2015 127 ORDER granting 126 Agreed Motion for Extension of Time to File stipulations to 07/21/2015. Signed by Judge Jane Magnus−Stinson on 7/20/2015. (MRI) (Entered: 07/20/2015)

07/20/2015 128 NOTICE on hearing testimony by videoconference, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, STANLEY KNIGHT, BRUCE LEMMON, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN (Arthur, David) (Entered: 07/20/2015)

07/21/2015 129 STIPULATION OF FACTS, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 07/21/2015)

07/26/2015 130 NOTICE of Appearance by Tasha Rebecca Roberts on behalf of Plaintiff AARON ISBY−ISRAEL. (Roberts, Tasha) (Entered: 07/26/2015)

07/28/2015 131

MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Bench Trial held on 7/27/2015. The Court began a bench trial in this action. The plaintiff appeared in person and by counsel, Kenneth Roberts, Tasha Roberts, and Adam Lenkowsky. The defendants appeared by counsel David Arthur and Nikki Ashmore. Defendant Jerry Snyder appeared in person. The court reporter was Jean Knepley. Counsel for the parties provided opening statements. A video link was established with the Pendleton Correctional and Wabash Valley Correctional Facilities. Plaintiff began his case in chief. The following witnesses testified: Jerry Synder in person, Terry Huspon, Leonard McQuay, Tommy Olive, and Lincoln Love appeared via videoconferencing. The video connection was clear and adequate. The witnesses by video confirmed that the view and sound were visible and audible. The plaintiff also testified. The Court received into evidence stipulated exhibits 1−6 and 103. Due to the late hour, the Court recessed, to reconvene on July 28, 2015 at 9:00 a.m. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 07/28/2015)

07/29/2015 132

MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Bench Trial completed on 7/28/2015. On July 28, 2015, the Court resumed its bench trial in this action. Plaintiff was present in person and by counsel. The Defendants were present by counsel and Defendants Jerry Snyder and Richard Brown appeared in person. At the conclusion of Monday's proceedings, counsel for the Plaintiff raised a desire to obtain additional blood tests. The Court instructed counsel to provide authority the next morning as to how the Court could be engaged in the process of obtaining blood tests on the Plaintiff for purposes of this case. No authority was presented and counsel did not raise the issue again, so the Court construes any request concerning additional blood tests as having been withdrawn. Plaintiff rested. Defendants James Wynn, Beverly Gilmore, Julie Snider, Jack Hendrix, and Dusty Russell moved for judgment as a matter of law in their favor pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. That motion was granted as to Defendants James Wynn, Julie Snider, and Dusty Russell, and denied as to Defendants Jack Hendrix and Beverly Gilmore. No partial final judgment shall issue at this time. The remaining Defendants are Richard Brown, Jack Hendrix, Jerry Snyder, and Beverly Gilmore. Defendants began their case−in−chief. Exhibits 101, 101a, and 102 were admitted without objection. Plaintiff offered Exhibit 7 and it was admitted with Defendants' sustained objection that it be offered only for its use as a demonstrative aid. The following witnesses testified: Jaymison Bennett, Frank Busby, Amy Reed, Chris Nicholson, Jerry Snyder, and Richard Brown. Defendants rested. Plaintiff Aaron Isby−Israel was called as a rebuttal witness. Counsel gave closing arguments. The parties have through August 28, 2015, in which to submit Final Proposed Findings of Fact and Conclusions of Law. The Court took this matter UNDER ADVISEMENT. Court was adjourned. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 07/29/2015)

08/28/2015 133 Proposed Findings of Fact by All Defendants. (Arthur, David) (Entered: 08/28/2015)

08/28/2015 134 Proposed Findings of Fact by AARON ISBY−ISRAEL. (Lenkowsky, Adam) (Entered: 08/28/2015)

09/25/2015 135

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Court is mindful that "prolonged confinement in administrative segregation may constitute a violation of the Eighth Amendment (and therefore the Fourteenth), depending on the duration and nature of the segregation and whether there were feasible alternatives to that confinement." Townsend, 759 F.3d at 690 (internal quotation omitted). And prior to trial the Court considered the duration of Mr. Isby−Israel's confinement in administrative segregation to be stunning, but

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the Court has found no case under similar circumstances where duration alone, coupled with a prisoner's refusal to participate in correctional programming, supported a finding of a constitutional violation. Based on the foregoing, the Court finds that the defendants are entitled to judgment in their favor, and the plaintiff shall take nothing from his second amended complaint. Final judgment shall now issue consistent with this Entry and with the Entry of July 30, 2013 (dismissing defendants Lemmon and Knight). Signed by Judge Jane Magnus−Stinson on 9/25/2015. (BGT) (Entered: 09/25/2015)

09/25/2015 136

FINAL JUDGMENT PURSUANT TO FED. R. CIV. PRO. 58. The Court having this day made its Entry directing the entry of final judgment, the Court now enters FINAL JUDGMENT. Judgment is entered in favor of the defendants and against the plaintiff. The plaintiff shall take nothing by his second amended complaint and this action is dismissed. Signed by Judge Jane Magnus−Stinson on 9/25/2015. (BGT) (Entered: 09/25/2015)

10/13/2015 137 MOTION for Copy of Transcript of Bench Trial, filed by Plaintiff AARON ISBY−ISRAEL. (BGT) (Entered: 10/14/2015)

10/16/2015 138

Entry Discussing Motion for Transcript And Extending the Time to File a Notice of Appeal − This action was dismissed after a two day bench trial on July 27, and July 28, 2015. Judgment was entered September 25, 2015. On October 13, 2015, the plaintiff filed a motion for copy of transcript of bench trial which states that the plaintiff "is in the process of or contemplating of pursuing an appeal to the Seventh Circuit." Dkt. 137. He requests that a transcript of the bench trial conducted on July 27, and July 28, 2015, be provided to him at no cost. The plaintiff's motion for copy of transcript of bench trial [dkt. 137] is denied as premature and incomplete with respect to whether the transcripts can be provided at public cost. The motion [dkt. 137], however, is also treated as a motion for extension of time in which to file a notice of appeal. To that extent, the Court finds good cause and the motion is granted. See Rule 4(a)(5) of the Federal Rules of Appellate Procedure. The original deadline to file a timely notice of appeal is October 26, 2015. That deadline is extended to November 25, 2015. No further extensions will be granted. In addition to the notice of appeal and motion to proceed on appeal in forma pauperis, the plaintiff shall file a separate renewed motion requesting that the transcripts be paid by the United States. The motion for transcripts should set forth the reasons any portion of the transcript which is sought is necessary for the appeal. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 10/16/2015. (RSF) (Entered: 10/16/2015)

10/19/2015 139 NOTICE OF APPEAL as to 136 Closed Judgment and 135 Findings of Fact & Conclusions of Law, filed by Plaintiff AARON ISBY−ISRAEL. (No fee paid with this filing) (BGT) (Entered: 10/20/2015)

10/19/2015 140 DOCKETING STATEMENT by AARON ISBY−ISRAEL re 139 Notice of Appeal. (BGT) (Entered: 10/20/2015)

10/19/2015 141 MOTION to Proceed on Appeal in forma pauperis, filed by Plaintiff AARON ISBY−ISRAEL. (BGT) (Entered: 10/20/2015)

10/21/2015 142 PARTIES' SHORT RECORD re 139 Notice of Appeal − Instructions for Attorneys and Designation of Record information attached. (LBT) (Entered: 10/21/2015)

10/21/2015 143 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 139 Notice of Appeal. − for Court of Appeals Use Only. (LBT) (Entered: 10/21/2015)

10/21/2015 144 MOTION for Expenses, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Exhibit A − Invoice, # 2 Text of Proposed Order)(Lenkowsky, Adam) (Entered: 10/21/2015)

10/21/2015 145 MOTION to Withdraw Attorney Appearance of Adam Lenkowsky, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Lenkowsky, Adam) (Entered: 10/21/2015)

10/21/2015 146 MOTION to Withdraw Attorney Appearance of Kenneth Roberts, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Roberts, Kenneth) (Entered: 10/21/2015)

10/21/2015 147 MOTION to Withdraw Attorney Appearance of Tasha Roberts, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Roberts, Tasha) (Entered: 10/21/2015)

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10/21/2015 148

ENTRY − The plaintiff's motion to proceed on appeal in forma pauperis [dkt. 141] is denied without prejudice until the plaintiff informs the Court of the issues he intends to raise on appeal. He shall have through November 16, 2015, in which to supplement his motion to proceed on appeal in forma pauperis with a statement of those issues. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 10/21/2015. (RSF) (Entered: 10/21/2015)

10/21/2015 149

Entry on Petition for Expenses − The petition for expenses under Local Rule 4−6(i) filed by counsel for plaintiff [dkt. 144] is granted. The Financial Deputy Clerk shall issue a check in the amount of $395.15 from the District Court Library Fund made payable to Roberts & Bishop, noting account number KTR−2015−003, and mail the check to Adam Lenkowsky, Roberts & Bishop, 118 North Delaware Street, Indianapolis, IN 46204. Copies distributed pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 10/21/2015. (RSF) Modified on 10/21/2015 (RSF). (Entered: 10/21/2015)

10/21/2015 150

Entry on Motions to Withdraw − The motions to withdraw appearance filed on behalf of counsel for the plaintiff [dkt. nos. 145, 146, 147], are granted. The appearances of Kenneth Roberts, Tasha Roberts, and Adam Lenkowsky are withdrawn. The plaintiff is proceeding pro se on appeal. The clerk shall update the docket to reflect these changes. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 10/21/2015. (RSF) (Entered: 10/21/2015)

10/21/2015 151 USCA Case Number 15−3334 for 139 Notice of Appeal filed by AARON ISBY−ISRAEL. (Attachments: # 1 PLRA Fee Notice and Order)(MAG) (Entered: 10/21/2015)

10/23/2015 152 AFFIDAVIT of Issues to Raise on Appeal and in Support of MOTION to Proceed on Appeal in forma pauperis by AARON ISBY−ISRAEL. (BGT) (Entered: 10/26/2015)

10/27/2015 153

Entry on Supplemented Motion to Proceed on Appeal In Forma Pauperis − (USCA #15−3334) The plaintiff's motion to proceed on appeal in forma pauperis [dkt. 141], as supplemented on October 23, 2015, is granted to the extent that the Court certifies that the plaintiff's appeal on issues I., II., III., IV., and VIII., is taken in good faith. The Court further certifies that issues V., VI., and VII. are not taken in good faith as they do not present "a substantial question." The plaintiff's motion to proceed on appeal in forma pauperis [dkt. 141], is also granted to the extent that an initial partial appellate filing fee of Five Dollars and Thirty Three Cents ($5.33) is assessed. The plaintiff shall have through November 30, 2015, in which to pay $5.33 to the clerk of the district court. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 10/27/2015. **Emailed to USCA re #15−3334** (RSF) Modified on 10/28/2015 (MAG). (Entered: 10/27/2015)

11/02/2015 154 MOTION to Proceed on Appeal in forma pauperis, filed by Plaintiff AARON ISBY−ISRAEL. c/s (GSO) (Entered: 11/02/2015)

11/04/2015 155 ORDER denying as moot 154 Motion for Leave to Appeal in forma pauperis in light of the Court's ruling on the plaintiff's earlier motion to proceed on appeal in forma pauperis in the Entry of October 27, 2015. (USCA #15−3334) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 11/4/2015. (RSF) (Entered: 11/04/2015)

11/05/2015 156 MOTION for copy of transcript of bench trial, filed by Plaintiff AARON ISBY−ISRAEL. (RSF) (Entered: 11/05/2015)

12/04/2015 157

ENTRY − The plaintiff was directed to pay the $5.33 partial appellate fee not later than November 30, 2015. The Court has not received this payment. The Court will not address the plaintiff's motion for copy of the trial transcript unless and until the plaintiff complies with the directions to pay the partial fee. Signed by Judge Jane Magnus−Stinson on 12/4/2015. Copy sent to Plaintiff via US Mail. **Emailed to USCA re #15−3334. ** (GSO) Modified on 12/7/2015 (MAG). (Entered: 12/04/2015)

12/10/2015 158 MOTION To Take Judicial Notice, filed by Plaintiff AARON ISBY−ISRAEL c/s. (MAC) (Entered: 12/10/2015)

12/14/2015 159 USCA Partial Appeal Fees received $5.33 receipt number IP048818 re 139 Notice of Appeal filed by AARON ISBY−ISRAEL (USCA #15−3334). (DJH) (Entered: 12/14/2015)

12/15/2015 160 ENTRY − The plaintiff's motion to take judicial notice [dkt. 158] is granted to the extent that he reports that he did not receive the October 27, 2015, Entry directing him to pay the $5.33 initial partial filing fee. The plaintiff shall have additional time, through January 6, 2016, in which to pay the initial partial filing fee to the Clerk of the Court. Copy to plaintiff via US

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Mail. Signed by Judge Jane Magnus−Stinson on 12/15/2015. **Emailed to USCA re #15−3334** (RSF) Modified on 12/17/2015 (MAG). (Entered: 12/15/2015)

12/15/2015 161

Entry Directing Court Reporter to Produce Transcript − The initial partial appellate fee has been received. The plaintiff's motion for copy of transcript of bench trial [dkt. 156] is granted. The transcript will be necessary on appeal. The Court Reporter is directed to produce and file a copy of the transcript at the expense of the United States, and to mail a copy to the plaintiff. Copies distributed pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 12/15/2015. **Emailed to USCA re #15−3334.** (RSF) Modified on 12/17/2015 (MAG). (Entered: 12/16/2015)

01/19/2016 162

**REDACTED TRANSCRIPT AT 165 ** TRANSCRIPT of Bench Trial, Volume 1 of 2 held on 7−27−15 before Judge Jane Magnus−Stinson. (228 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 2/9/2016. Release of Transcript Restriction set for 4/18/2016. (Knepley, Jean) Modified on 2/18/2016 (RSF). (Entered: 01/19/2016)

01/19/2016 163

TRANSCRIPT of Bench Trial, Volume 2 of 2 held on 7−28−15 before Judge Jane Magnus−Stinson. (199 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 2/9/2016. Release of Transcript Restriction set for 4/18/2016. (Knepley, Jean) Released on 4/20/2016 (SWM). (Entered: 01/19/2016)

01/19/2016 164 NOTICE of FILING of OFFICIAL TRANSCRIPT of Bench Trial, Volumes 1 and 2 held before Judge Jane Magnus−Stinson on July 27 − 28, 2015 (Knepley, Jean) (Entered: 01/19/2016)

02/17/2016 165 REDACTED Version of previously filed 162 TRANSCRIPT of Bench Trial, Volume 1 of 2 held on 7−27−15 before Judge Jane Magnus−Stinson. (228 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). (Knepley, Jean) Released on 4/20/2016 (SWM). (Entered: 02/17/2016)

02/25/2016 166 Supplemental MOTION for Expenses, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Lenkowsky, Adam) (Entered: 02/25/2016)

02/26/2016 167 ENTRY ON SUPPLEMENTAL PETITION FOR EXPENSES − The Supplemental Petition for Expenses filed by Counsel for Plaintiff under Local Rule 4−6(i) is granted. (See Entry.) Signed by Judge Jane Magnus−Stinson on 2/26/2016. Copies distributed pursuant to distribution list. (GSO) (Entered: 02/26/2016)

04/28/2016 168

ORDER of USCA as to 139 Notice of Appeal filed by AARON ISBY−ISRAEL (USCA #15−3334) − Pursuant to this court's order of April 20, 2016, IT IS ORDERED that Barry Levenstam, JENNER & BLOCK, 353 N. Clark Street, Chicago, IL 60654, is appointed to represent plaintiff−appellant Aaron E. Isby. See Order for briefing schedule. (MAG) (Entered: 04/28/2016)

12/14/2016 169 Certified and Transmitted Record on Appeal to US Court of Appeals re 139 Notice of Appeal (USCA #15−3334). (Attachments: # 1 Pleadings Doc. (1−50), # 2 Pleadings Doc. (51−101), # 3 Pleadings Doc. (102−End), # 4 Transcript Doc. 163, # 5 Transcript Doc. 165, # 6 Notice to Transmit Record)(MAT) (Entered: 12/14/2016)

12/15/2016 170 Appeal Remark re 139 Notice of Appeal (USCA #15−3334): Original record on appeal filed electronically. Contents of record : 3 vol. of pleadings and 2 transcripts. (MAT) (Entered: 12/15/2016)

06/01/2017 171

MANDATE of USCA as to 139 Notice of Appeal filed by AARON ISBY−ISRAEL (USCA #15−3334) − Isby is ordered to pay in full all outstanding fees to this Court and the district court, and we AFFIRM the district court on Isby's Eighth Amendment claim and REVERSE and REMAND on his Fourteenth Amendment claim. The above is in accordance with the decision of this court entered on this date. Both sides should bear their own costs. (MAT) (Entered: 06/01/2017)

06/01/2017 172 Entry Directing Filing of Local Rule 16.2 Statements − The parties shall have through June 23, 2017, in which to file their respective statements of position in accordance with Local Rule 16−2. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/1/2017.(JRB) (Entered: 06/01/2017)

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06/05/2017 173

ORDER OF RECRUITMENT OF COUNSEL PURSUANT TO LOCAL RULE 87 − Daniel R. Kelley, Melissa M. Orizondo, and Burnell K. Grimes are appointed to represent the plaintiff in the above action pursuant to Local Rule 87. This representation shall continue until final judgment is entered unless otherwise modified by written order (SEE ORDER). Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/5/2017.(DW) (Entered: 06/05/2017)

06/23/2017 174 Statement (Joint) Pursuant to Local Rule 16.2 by AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 06/23/2017)

06/26/2017 175 SCHEDULING ORDER:Telephonic Status Conference set for 8/28/2017 at 4:00 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore (SEE ORDER). Signed by Magistrate Judge Mark J. Dinsmore on 6/26/2017.(DW) (Entered: 06/27/2017)

06/30/2017 176 MOTION to Withdraw Attorney Appearance of Nikki G. Ashmore, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Attachments: # 1 Text of Proposed Order)(Ashmore, Nikki) (Entered: 06/30/2017)

07/03/2017 177 ORDER granting 176 Motion to Withdraw Attorney Appearance. Attorney Nikki G. Ashmore withdrawn. Copy sent to Plaintiff via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 7/3/2017. (JRB) (Entered: 07/03/2017)

08/18/2017 178 NOTICE of Appearance by Ryan Joseph Sterling on behalf of Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER. (Sterling, Ryan) (Entered: 08/18/2017)

08/30/2017 180 MOTION directing Defendants and Department of Corrections Officials to cease obstructing Isby's communication with his lawyer and the surrender all legal papers to him, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(DW) (Entered: 08/31/2017)

08/30/2017 181

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status/Scheduling Conference held on 8/28/2017. Parties discussed status, future plans for discovery & other issues relating to trial preparation. Case Management Order setting deadlines to be entered by separate order. Telephonic Status Conference set for 10/18/2017 at 3:40 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. Telephonic Settlement Conference set for 3/13/2018 at 1:00 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER FOR ADDITIONAL DEADLINES & INFORMATION.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 08/31/2017)

08/31/2017 182 ORDER: CASE MANAGEMENT PLAN APPROVED AS SUBMITTED − Discovery due by 3/12/2018 (SEE ORDER). Signed by Magistrate Judge Mark J. Dinsmore on 8/31/2017.(DW) (Entered: 08/31/2017)

09/06/2017 183

Entry Discussing Plaintiff's Pro Se Motion Regarding Communication with his Attorneys and Access to His Legal Papers − Plaintiff's counsel and counsel for the defendants shall confer and discuss plaintiff's concerns in an attempt to resolve them. If more specific orders from the Court are required to accomplish this, plaintiff's counsel shall file an appropriate motion. Plaintiff's pro se motion, 180 , is granted to the extent consistent with the above. The clerk shall send a copy of this Entry to the plaintiff. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/6/2017. (JRB) (Entered: 09/06/2017)

09/14/2017 184 MOTION for leave to depose inmate, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 09/14/2017)

09/14/2017 185 Unopposed MOTION for Extension of Time to File Jury Demand, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Kelley, Daniel) (Entered: 09/14/2017)

09/15/2017 186 Submission of Proposed Order Granting Leave to Depose Inmate, re 184 MOTION for leave to depose inmate, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 09/15/2017)

09/15/2017 187 MOTION to Dismiss For Fraud On The Court, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY

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SNYDER, JAMES WYNN. (Attachments: # 1 Text of Proposed Order Dismissing Case)(Arthur, David) (Entered: 09/15/2017)

09/15/2017 188 MOTION for Leave to File Successive Dispositive Motion, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Attachments: # 1 Text of Proposed Order Granting Leave to File Successive Dispositive Motion)(Arthur, David) (Entered: 09/15/2017)

09/15/2017 189 DEMAND for Trial by Jury, filed by Plaintiff AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 09/15/2017)

09/19/2017 190

Entry Directing Responses − The plaintiff shall have through October 3, 2017, in which to respond to the defendants' motion for leave to depose inmate, motion to dismiss for fraud on the court, and motion for leave to file successive dispositive motion. The defendants shall then have seven (7) days to reply. The defendants shall have through October 3, 2017, in which to respond to the plaintiff's demand for trial by jury. Copy sent to Petitioner via US Mail. Signed by Judge Jane Magnus−Stinson on 9/19/2017.(JRB) (Entered: 09/19/2017)

09/19/2017 191 ORDER denying as moot 185 Motion for Extension of Time to File Jury Demand − Nothing in this entry should be construed as a merits ruling that the jury demand was timely or properly filed. SEE ORDER. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 9/19/2017. (JRB) Modified on 9/20/2017 (JRB). (Entered: 09/19/2017)

09/21/2017 192 MOTION to Withdraw Attorney Appearance of Barry Levenstam, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order on Motion to Withdraw as Counsel)(Levenstam, Barry) (Entered: 09/21/2017)

09/25/2017 193 Exhibit List , filed by Plaintiff AARON ISBY−ISRAEL, Witness List , filed by Plaintiff AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 09/25/2017)

09/25/2017 194

Witness List (prelininary), filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN, Exhibit List (preliminary), filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 09/25/2017)

09/25/2017 195 ORDER granting 192 Motion to Withdraw Attorney Appearance. Attorney Barry Levenstam is hereby WITHDRAWN and TERMINATED. Copy to Plaintiff via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 9/25/2017. (DW) (Entered: 09/25/2017)

09/29/2017 196 RESPONSE in Opposition re 188 MOTION for Leave to File Successive Dispositive Motion , filed by Plaintiff AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 09/29/2017)

09/29/2017 197 RESPONSE in Opposition re 187 MOTION to Dismiss For Fraud On The Court , filed by Plaintiff AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 09/29/2017)

10/03/2017 198 NOTICE of Withdrawal of Jury Demand, filed by Plaintiff AARON ISBY−ISRAEL, re 189 Jury Demand. (Kelley, Daniel) (Entered: 10/03/2017)

10/03/2017 199 REPLY in Support of Motion re 187 MOTION to Dismiss For Fraud On The Court , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 10/03/2017)

10/17/2017 201

Entry Discussing Pending Motions − The defendants' unopposed motion for leave to depose the plaintiff, dkt. 184 , is granted. For the reasons stated in this Entry, the defendants' motion to dismiss for fraud on the court, [dkt. 187], is denied. For the reasons stated in this Entry, the defendants' motion for leave to file successive dispositive motion, dkt. 188 , is denied. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 10/17/2017. (APD) (Entered: 10/17/2017)

10/18/2017 204

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 10/18/2017. Parties discussed status of & future plans for discovery. Telephonic Status Conference set for 12/4/2017 at 11:00 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 10/19/2017)

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10/19/2017 202 NOTICE of Unopposed Initial Extension of Time to Respond to Plaintiff's Discovery Requests, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN (Arthur, David) (Entered: 10/19/2017)

10/19/2017 203 NOTICE of Appearance by Jason Rauch on behalf of Plaintiff AARON ISBY−ISRAEL. (Rauch, Jason) (Entered: 10/19/2017)

12/04/2017 206

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 12/4/2017. Parties discussed status of & future plans for discovery. Telephonic Status Conference set for 1/3/2018 at 12:00 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 12/04/2017)

01/03/2018 208

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 1/3/2018. Parties discussed status of & future plans for discovery. Telephonic Status Conference set for 2/12/2018 at 10:30 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (Distribution to Plaintiff via U.S. Mail.) (GD) (Entered: 01/03/2018)

01/29/2018 209

Witness List (final), filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN, Exhibit List (final), filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 01/29/2018)

01/29/2018 210 Exhibit List Final, filed by Plaintiff AARON ISBY−ISRAEL, Witness List Final, filed by Plaintiff AARON ISBY−ISRAEL. (Rauch, Jason) (Entered: 01/29/2018)

01/31/2018 211 Joint MOTION for Extension of Time to May 11, 2018 to Complete Discovery, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Rauch, Jason) (Entered: 01/31/2018)

02/13/2018 213

ORDER SETTING TRIAL AND FINAL PRETRIAL CONFERENCE: This cause is hereby set for a Bench Trial before Judge Jane Magnus−Stinson on September 24, 2018 at 9:00 a.m. and in Room 307 of the U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. A Final Pretrial Conference is also set for September 7, 2018 at 10:00 a.m. in Room 307 of the Birch Bayh Federal Building and U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana. Additional required pretrial preparation deadlines will be set by separate order. Signed by Judge Jane Magnus−Stinson on 2/13/2018. Copy to Plaintiff via US Mail. (DW) (Entered: 02/13/2018)

02/14/2018 214

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: The parties appeared by telephone for a Status Conference. The parties discussed the status of and future plans for discovery. The parties reported that neither party has identified any expert witnesses in this matter. This matter also comes before the Court on the parties' Joint Motion for Extension of Discovery Deadline. [Dkt. 211 ] With the agreement of the parties, that motion is hereby GRANTED IN PART and DENIED IN PART and paragraph H of the approved Case Management Order [Dkt. 182 ] is hereby amended as follows: H. The time to file dispositive motions has expired. All discovery shall be completed by April 26, 2018. In light of the enlargement of the discovery deadline set forth above, the Court sua sponte CONTINUES the March 13, 2018 telephonic settlement conference to 9:00 a.m. (Eastern) on Thursday, May 3, 2018. This matter is scheduled for a telephonic status conference on Monday, March 12, 2018 at 1:40 p.m. (Eastern) to discuss case status. *Please See Order for Additional Information and Deadlines.* Signed by Magistrate Judge Mark J. Dinsmore. Mailed to Plaintiff. (CAG) Modified on 2/14/2018 (CAG). (Entered: 02/14/2018)

03/12/2018 216

MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 3/12/2018. Parties discussed status of discovery & upcoming settlement conference. Court sua sponte vacates requirement for submission of proposed jury instructions set forth in its Minute Entry for February 12, 2018 [Dkt. 214 at 2] & amends paragraph I of approved Case Management Order as amended [Dkt. 182 at 2; Dkt. 214 ]. Statement of Claims or Defenses due by 4/30/2018; Plaintiff shall also articulate all remedies he intends to seek at trial of this matter relating to such claims. Court was informed Plaintiff is now located at Westville Correctional Facility; Clerk is directed to update docket to reflect Plaintiff's change of address. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (Distribution via U.S. Mail to Plaintiff at Westville Correctional Facility.) (GD)

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(Entered: 03/14/2018)

03/28/2018 217 Mail Returned as undeliverable. − RTS 214 MINUTE ENTRY sent to AARON ISBY−ISRAEL − 892219 WABASH VALLEY − CFWABASH VALLEY CORRECTIONAL FACILITY 6908 S. Old US Hwy 41P.O. Box 1111CARLISLE, IN 47838. (DW) (Entered: 03/30/2018)

03/30/2018 218 MOTION to Compel Production of Three Emails, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kelley, Daniel) (Entered: 03/30/2018)

03/30/2018 219 Submission of Proposed Order , re 218 MOTION to Compel Production of Three Emails, filed by Plaintiff AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 03/30/2018)

04/02/2018 220 NOTICE Regarding Motion to Compel Three Emails, filed by Plaintiff AARON ISBY−ISRAEL, re 218 MOTION to Compel Production of Three Emails. (Attachments: # 1 Exhibit F (email among counsel)) (Kelley, Daniel) (Entered: 04/02/2018)

04/04/2018 221 RESPONSE in Opposition re 218 MOTION to Compel Production of Three Emails , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Attachments: # 1 Exhibit Stroup email and attachment)(Arthur, David) (Entered: 04/04/2018)

04/04/2018 222 REPLY in Support of Motion re 218 MOTION to Compel Production of Three Emails , filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order Denying Motion as Moot)(Kelley, Daniel) (Entered: 04/04/2018)

04/10/2018 223 ENTRY − denying as moot 218 Motion to Compel. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 4/10/2018. (BRR) (Entered: 04/10/2018)

04/24/2018 224 ORDER to Make Inmate Available − via Telephone. Warden of Westville Correctional Facility ordered to make Aaron Isby−Israel Available − via Telephone for court proceeding on 5/3/2018 (SEE ORDER). Signed by Magistrate Judge Mark J. Dinsmore on 4/24/2018. Copy to Plaintiff via US Mail. (DW) (Entered: 04/24/2018)

04/27/2018 227 MOTION for Order against Defendants to return all legal property that was taken in retaliation for pursuit of this action, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope). (MAC) (Entered: 05/01/2018)

04/30/2018 225 Statement of defenses by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 04/30/2018)

04/30/2018 226 Statement of Claims for Proof at Trial by AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 04/30/2018)

05/09/2018 228 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Settlement Conference held on 5/3/2018. Settlement was not achieved. Conference concluded without further order. (Distribution to Plaintiff via U.S. Mail.) Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 05/10/2018)

06/08/2018 229

Entry Discussing Plaintiff's Pro Se Motion For Order Regarding His Legal Papers − On April 27, 2018, Plaintiff filed a pro se motion asking the Court to intervene and order the defendants to return to Plaintiff all of his legal property that was seized from his cell in April 2018. He also seeks an order to show cause why the defendants should not be sanctioned for depriving him of his legal papers and reading his legal mail. Plaintiff is represented by counsel. Plaintiff's counsel and counsel for the defendants shall confer and discuss Plaintiff's concerns in an attempt to resolve them. Plaintiff's pro se motion, dkt. 227 , is granted only to the extent consistent with the above. (See Entry). Copy to plaintiff via US Mail. Signed by Judge Jane Magnus−Stinson on 6/8/2018. (APD) (Entered: 06/08/2018)

07/13/2018 230 MOTION for Independent Expert Witness, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(JRB) (Entered: 07/17/2018)

07/19/2018 231 Entry Discussing Plaintiff's Pro Se Motion For Independent Expert Witness − Plaintiff's pro se motion, dkt. 230 , is denied without prejudice for the present (SEE ENTRY). Signed by Judge Jane Magnus−Stinson on 7/19/2018. Copy to Plaintiff via US Mail. (DWH) (Entered: 07/19/2018)

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07/24/2018 232 FINAL PRETRIAL ORDER − To help the Court prepare for the final pretrial conference set on September 7, 2018, at 10:00 a.m., and upcoming bench trial, set on September 24, 2018, at 9:00 a.m., the Court ORDERS as follows. (See Order.) Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 7/24/2018.(DMW) (Entered: 07/24/2018)

07/24/2018 233 ORDER to PRODUCE INMATE. Warden of Westville Correctional Facility ordered to produce Aaron Isby−Israel − DOC #892219 for court proceeding on 9/7/2018. (See Order.) Copies via U.S. Mail pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 7/24/2018. Paper copies to USM.(DMW) (Entered: 07/24/2018)

07/24/2018 234 ORDER to PRODUCE INMATE. Warden of Westville Correctional Facility ordered to produce Aaron Isby−Israel − DOC #892219 for court proceeding on 9/24/2018. (See Order.) Copies sent via U.S. Mail pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 7/24/2018. Paper copies to USM.(DMW) (Entered: 07/24/2018)

07/27/2018 235 NOTICE of Position on Plaintiff's Pro Se Motion for Independent Expert, filed by Plaintiff AARON ISBY−ISRAEL (Rauch, Jason) (Entered: 07/27/2018)

08/13/2018 237 (Surreply) RESPONSE re 235 Notice of Position on Plaintiff's Pro Se Motion for Independent Expert, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(DMW) (Entered: 08/14/2018)

08/14/2018 236 ORDER RESETTING TRIAL − The September 24, 2018 Bench Trial before Chief Judge Jane Magnus−Stinson is reset to begin on September 25, 2018 at 9:00 a.m. and in Room 307 of the U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Signed by Judge Jane Magnus−Stinson on 8/14/2018. (DWH) (Entered: 08/14/2018)

08/15/2018 238

AMENDED ORDER to PRODUCE INMATE − Warden of Westville Correctional Facility ordered to produce Aaron Isby−Israel − DOC #892219 for court proceeding on 9/25/2018. This amended Order changes the date of the trial. (See Order.) Copies via U.S Mail pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 8/15/2018. Paper copies to USM.(DMW) (Entered: 08/15/2018)

08/17/2018 239 Exhibit List , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 08/17/2018)

08/17/2018 240 AMENDED Final Exhibit List, filed by Plaintiff AARON ISBY−ISRAEL. (Rauch, Jason) Modified on 8/20/2018 (DWH). (Entered: 08/17/2018)

08/24/2018 241 NOTICE OF INTENT TO OFFER DEPOSITION INTO EVIDENCE AND SUMMARY OF DEPOSITIONS, filed by Plaintiff AARON ISBY−ISRAEL (Rauch, Jason) (Entered: 08/24/2018)

08/24/2018 242 NOTICE of Intention to Use Certain Technology at Trial, filed by Plaintiff AARON ISBY−ISRAEL (Rauch, Jason) (Entered: 08/24/2018)

08/24/2018 243 Witness List , filed by Plaintiff AARON ISBY−ISRAEL. (Rauch, Jason) (Entered: 08/24/2018)

09/05/2018 244

TRIAL BRIEF in the form of proposed findings and conclusions by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN, Proposed Findings of Fact by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, DUSTY RUSSELL, JULIE SNIDER, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 09/05/2018)

09/05/2018 245 TRIAL BRIEF including Proposed Findings of Fact and Conclusions of Law by AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 09/05/2018)

09/07/2018 246

MINUTE ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE for proceedings held before Judge Jane Magnus−Stinson: On September 7, 2018, plaintiff Aaron Isby−Israel appeared in person and by counsel and the defendants appeared by counsel for the final pretrial conference in this matter (SEE ENTRY FOR ADDITIONAL INFORMATION) Signed by Judge Jane Magnus−Stinson. Copy to Plaintiff via US Mail. (Court Reporter Jean Knepley.)(DWH) (Entered: 09/07/2018)

09/18/2018 247 STIPULATION of Dismissal Of Dusty Russell and Julie Snider, filed by Plaintiff AARON ISBY−ISRAEL. (Rauch, Jason) (Entered: 09/18/2018)

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09/18/2018 248 MOTION to Produce Inmate, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order Order to Produce Inmate)(Rauch, Jason) (Entered: 09/18/2018)

09/19/2018 249

SCHEDULING ORDER: The Court, sua sponte, hereby sets the matter for a telephonic status conference on September 19, 2018, at 3:00 p.m. (Eastern). The purpose of the conference is to discuss the plaintiff's Motion to Produce Inmate. [Filing No. 248 ] Call−in information for the telephonic status conference will be provided by separate entry. Signed by Judge Jane Magnus−Stinson on 9/19/2018. (DMW) (Entered: 09/19/2018)

09/19/2018 251

MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: On September 19, 2018, the Court conducted a telephonic status conference on Plaintiff's Motion to Produce Inmate. Dkt. 248. The parties appeared by counsel. The Court Reporter was Jean Knepley. As a result of this conference, the following ruling is issued: Plaintiff's motion to produce inmate, dkt. 248 , is granted to the extent that Plaintiff has already been ordered to be produced in Room 307 of the U.S Courthouse at 8:30 a.m. on Tuesday, September 25, 2018. Dkt. 238. Counsel shall be afforded time to confer privately with Plaintiff at that time, and the start of trial will be delayed until 11:00 a.m. at the earliest. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 09/19/2018)

09/19/2018 252

ACKNOWLEDGEMENT OF PARTIAL DISMISSAL − Plaintiff, Aaron Isby−Israel, and Defendants, Dusty Russell and Julie Snider, by their respective counsel, having filed their stipulation of dismissal with prejudice as to those two Defendants pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii), this action is dismissed as to Dusty Russell and Julie Snider only, each party to bear their own costs 247 . Plaintiff is ordered to file a list of the remaining defendants against whom he is proceeding, and in what capacity, by noon 9/21/18. Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 9/19/2018. (DMW) (Entered: 09/19/2018)

09/20/2018 253

Second Amended ORDER to PRODUCE INMATE. Warden of WESTVILLE CORRECTIONAL FACILITY ordered to produce Aaron Isby−Israel − DOC #892219 for court proceeding on 9/25/2018.. Signed by Judge Jane Magnus−Stinson on 9/20/2018. Copy to Plaintiff via US Mail. Paper copies to USM.(DWH) Modified on 9/21/2018 to edit document title(DMW). (Entered: 09/20/2018)

09/20/2018 254 NOTICE OF REMAINING DEFENDANTS AND THE CAPACITIES IN WHICH EACH IS SUED, filed by Plaintiff AARON ISBY−ISRAEL, re 252 Order on Stipulation of Dismissal. (Kelley, Daniel) (Entered: 09/20/2018)

09/24/2018 255 MOTION in Limine, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(JDC) (Entered: 09/25/2018)

09/24/2018 256 MOTION Requesting That Plaintiff not be forced to wear restraints during the Trial, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Envelope)(JDC) Modified on 9/25/2018 (JDC). (Main Document 256 replaced on 9/25/2018) (JDC). (Entered: 09/25/2018)

09/24/2018 257 MOTION Requesting The Court to Take Judicial Notice, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Exhibit, # 2 Envelope)(JDC) (Entered: 09/25/2018)

09/25/2018 258

Third Amended Order to Produce Inmate at Court Proceeding − Warden of Westville Correctional Facility ordered to produce Aaron Isby−Israel − DOC #892219 for court proceeding on September 26−27, 2018. (See Order.) Copies via U.S. Mail and fax pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 9/25/2018. Paper copies to USM.(DMW) (Entered: 09/25/2018)

09/26/2018 259

ENTRY DISCUSSING PLAINTIFF'S PRO SE MOTIONS − On June 5, 2017, the Court recruited counsel to represent the plaintiff in this action until final judgment is entered. Dkt. 173 . Since that date, recruited counsel has ably represented the plaintiff. Nonetheless, the plaintiff filed three motions pro se on September 24, 2018, the day before trial started. It is confusing for the Court and the record to have the plaintiff file motions on his own. In short, at this time, the plaintiff is not pro se. The Court will only consider filings made through counsel. Accordingly, the plaintiff's motion in limine, dkt. 255 , motion that he not be forced to wear restraints during trial, dkt. 256 , and motion to take judicial notice, [dkt. 257 , are denied without prejudice. Copies via U.S. Mail pursuant to distribution list. Signed by Judge Jane Magnus−Stinson on 9/26/2018. (DMW) (Entered: 09/26/2018)

09/26/2018 260 MINUTE ENTRY ON SEPTEMBER 25, 2018 BENCH TRIAL − Day 1 − On September 25, 2018, the Court conducted the first day of a bench trial in this case. Plaintiff appeared in

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person and by recruited counsel Daniel Kelley, Burnell Grimes and Jason Rauch. Defendants Jerry Snyder, Beverly Gilmore, and Richard Brown appeared in person and by counsels David Arthur and Ryan Sterling. Exhibits were admitted. Opening statements were presented. Witnesses testified. Evidence concluded for the day. Due to the late hour, the Court recessed to reconvene on September 26, 2018, at 10:00 a.m. Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(DMW) (Entered: 09/26/2018)

09/26/2018 261 ENTRY − The trial of this action was completed after two days. The Third Amended Order to Produce Inmate at Court Proceeding issued on September 25, 2018, is satisfied. Plaintiff Aaron Isby−Israel, DOC # 892219, should not be produced on September 27, 2018. Signed by Judge Jane Magnus−Stinson on 9/26/2018.(MRI) (Entered: 09/26/2018)

09/27/2018 262

MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Bench Trial completed on 9/26/2018. On September 26, 2018, the Court conducted the second day of a bench trial in this case. Plaintiff appeared in person and by recruited counsel Daniel Kelley, Burnell Grimes and Jason Rauch. Defendants Jerry Snyder, Jack Hendrix, and Richard Brown appeared in person and by counsel David Arthur and Ryan Sterling. The parties shall have through October 11, 2018, in which to file: 1. A joint timeline of Mr. Isby's 30 day reviews, 90 day reviews, annual classification reviews and requests for transfer and any related appeals, identifying on the timeline the exhibit number that corresponds to the event. 2. A 10−page post−judgment brief that includes a discussion of: a. whether the Defendants contention that plaintiff's failure to request a 90−day results in a waiver of any claim for failure to provide such a review comports with existing precedent concerning Defendants obligation to provide meaningful, periodic reviews of Mr. Isby's segregation designation b. the measure of compensatory damages available for an alleged constitutional violation (excluding any discussion of emotional distress and pain and suffering) and whether any such award is limited to nominal damages; and c. any other matter the parties wish to brief within the 10−page limit. Signed by Judge Jane Magnus−Stinson. (SEE ORDER FOR MORE DETAILS.) Copy by U.S. Mail to Plaintiff. (Court Reporter Jean Knepley.)(MRI) (Entered: 09/27/2018)

09/28/2018 263

AMENDED MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Bench Trial completed on 9/26/2018. On September 26, 2018, the Court conducted the second day of a bench trial in this case. Plaintiff appeared in person and by recruited counsel Daniel Kelley, Burnell Grimes and Jason Rauch. Defendants Jerry Snyder, Jack Hendrix, and Richard Brown appeared in person and by counsel David Arthur and Ryan Sterling. The parties shall have through October 11, 2018, in which to file: 1. A joint timeline of Mr. Isby's 30 day reviews, 90 day reviews, annual classification reviews and requests for transfer and any related appeals, identifying on the timeline the exhibit number that corresponds to the event. 2. A 10−page post−trial brief that includes a discussion of: a. whether the Defendants contention that plaintiff's failure to request a 90−day results in a waiver of any claim for failure to provide such a review comports with existing precedent concerning Defendants obligation to provide meaningful, periodic reviews of Mr. Isby's segregation designation b. the measure of compensatory damages available for an alleged constitutional violation (excluding any discussion of emotional distress and pain and suffering) and whether any such award is limited to nominal damages; and c. any other matter the parties wish to brief within the 10−page limit. Signed by Judge Jane Magnus−Stinson. (SEE ORDER FOR MORE DETAILS.). Signed by Judge Jane Magnus−Stinson on 9/28/2018.(MRI) (Entered: 09/28/2018)

10/11/2018 264 REPORT of Joint Timeline of Reviews by AARON ISBY−ISRAEL. (Rauch, Jason) (Entered: 10/11/2018)

10/11/2018 265 TRIAL BRIEF (post−trial) by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER. (Arthur, David) (Entered: 10/11/2018)

10/11/2018 266 TRIAL BRIEF (Post−Trial) by AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 10/11/2018)

10/12/2018 267 MOTION for Leave to File One−Page Response to Defendants' Post−Trial Brief, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Proposed Response to Post−Trial Brief, # 2 Text of Proposed Order)(Kelley, Daniel) (Entered: 10/12/2018)

10/12/2018 268 RESPONSE in Opposition re 267 MOTION for Leave to File One−Page Response to Defendants' Post−Trial Brief , filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER. (Arthur, David) (Entered: 10/12/2018)

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10/23/2018 269

ENTRY − The plaintiff's motion for leave to file a response to defendants' post−trial brief, dkt. 267 , is denied as unnecessary. The defendants clarified that they are not contending that annual classification reviews function as reviews of an inmate's assignment to administrative segregation. Dkt. 268 . Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 10/23/2018. (DMW) (Entered: 10/23/2018)

11/16/2018 270

TRANSCRIPT of Bench Trial, Volume 1 of 2, held on 9−25−18 before Chief Judge Jane Magnus−Stinson. (234 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 696−3565). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 12/7/2018. Release of Transcript Restriction set for 2/14/2019. (Knepley, Jean) Released on 2/14/2019 (SWM). (Entered: 11/16/2018)

11/16/2018 271

TRANSCRIPT of Bench Trial, Volume 2 of 2, held on 9−26−18 before Chief Judge Jane Magnus−Stinson. (310 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 696−3565). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 12/7/2018. Release of Transcript Restriction set for 2/14/2019. (Knepley, Jean) Released on 2/14/2019 (SWM). (Entered: 11/16/2018)

11/16/2018 272 NOTICE of FILING of OFFICIAL TRANSCRIPT of Bench Trial, Volumes 1 and 2, held before Chief Judge Jane Magnus−Stinson on 9−25−18 through 9−26−18 (Knepley, Jean) (Entered: 11/16/2018)

12/17/2018 273 MOTION to Withdraw Attorney Appearance of Ryan J. Sterling, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER. (Attachments: # 1 Text of Proposed Order)(Sterling, Ryan) (Entered: 12/17/2018)

12/19/2018 274

ORDER − The Court summarizes its findings as follows: Defendants willfully violated Mr. Isby's due process rights by failing to provide periodic, meaningful review of his long−term placement in solitary confinement; Compensatory damages in the amount of $314,000.00 are awarded; Punitive damages in the amounts set forth are awarded; Injunctive relief is awarded as set forth; Plaintiff's counsel may seek attorney's fees. Punitive damages are not assessed against Ms. Gilmore. Punitive damages are assessed as follows: Warden Brown, $10,000.00; Director Hendrix, $7,500.00. and Mr. Snyder, $5,000.00. (See Order.) Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 12/19/2018. (DMW) (Entered: 12/19/2018)

12/21/2018 275

ORDER GRANTING MOTION FOR LEAVE TO WITHDRAW APPEARANCE − Granting 273 Motion to Withdraw Attorney Appearance. The appearance of Ryan J. Sterling on behalf of Defendants is WITHDRAWN and TERMINATED. Copy to Plaintiff via U.S. Mail. Signed by Magistrate Judge Mark J. Dinsmore on 12/21/2018. (DMW) (Entered: 12/21/2018)

01/02/2019 276 MOTION for Establishment of Briefing Schedule on Attorneys' Fee Request, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Kelley, Daniel) (Entered: 01/02/2019)

01/03/2019 277 NOTICE of Appearance by Emily A. Kile−Maxwell on behalf of Plaintiff AARON ISBY−ISRAEL. (Kile−Maxwell, Emily) (Entered: 01/03/2019)

01/03/2019 278 MOTION to Withdraw Attorney Appearance of Melissa Orizondo and Burnell Grimes, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order on Motion to Withdraw Appearances of Melissa Orizondo and Burnell Grimes)(Kile−Maxwell, Emily) (Entered: 01/03/2019)

01/04/2019 279 Submission of Proposed Plan for Removal From Restrictive Status Housing , filed by Defendant JACK HENDRIX. (Attachments: # 1 Exhibit STAND offender handbook)(Arthur, David) Modified on 1/7/2019 to edit document title (DMW). (Entered: 01/04/2019)

01/04/2019 280 MOTION to Appoint Emily A. Kile−Maxwell as Additional Counsel Pursuant to Local Rule 87, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Text of Proposed Order)(Kelley, Daniel) (Entered: 01/04/2019)

01/07/2019 281

ORDER GRANTING MOTION TO APPOINT ADDITIONAL RECRUITED COUNSEL PURSUANT TO LOCAL RULE 87 − Granting 280 Motion to Appoint Additional Recruited Counsel. This representation shall continue until final judgment is entered unless otherwise modified by written order. (See Order.) Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 1/7/2019. (DMW) (Entered: 01/07/2019)

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01/07/2019 282 ORDER − Granting 278 Motion to Withdraw Attorney Appearances. The appearances of Melissa Orizondo and Burnell Grimes as Recruited Counsel for Plaintiff are WITHDRAWN and TERMINATED. Copy to Plaintiff via U.S. Mail. Signed by Magistrate Judge Mark J. Dinsmore on 1/7/2019. (DMW) (Entered: 01/07/2019)

01/09/2019 283

ORDER ON MOTION FOR ESTABLISHMENT OF BRIEFING SCHEDULE REGARDING AWARD OF ATTORNEYS' FEES UNDER 42 U.S.C. § 1988 − Granting 276 Motion of counsel for Plaintiff Aaron Isby−Israel for establishment of a briefing schedule regarding the award of attorneys' fees. IT IS THEREFORE ORDERED that 60 days after the later of (i) the expiration of Defendants' time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A) (Jan. 18, 2019), if no notice of appeal is filed; or (ii) entry of final judgment after the exhaustion of any appellate process, counsel for Mr. Isby may file their request for attorneys' fees, with supporting evidentiary material. Opposition briefs, if any, will be due 30 days after that filing. Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 1/9/2019. (DMW) (Entered: 01/09/2019)

01/10/2019 284 MOTION to Vacate 283 Order on Motion (incorrect date for filing notice of appeal), filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 01/10/2019)

01/11/2019 285 RESPONSE to Motion re 284 MOTION to Vacate 283 Order on Motion (incorrect date for filing notice of appeal) , filed by Plaintiff AARON ISBY−ISRAEL. (Kelley, Daniel) (Entered: 01/11/2019)

01/11/2019 286

ORDER − The defendants' motion to vacate order, dkt. 284 , is granted to the extent that the January 9, 2019, Order on Motion for Establishment of Briefing Schedule will be amended in a separate Order to delete the date "(Jan. 19, 2019)" in the third line of the second paragraph. No final judgment has been issued in this case. Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 1/11/2019. (DMW) (Entered: 01/11/2019)

01/11/2019 287

AMENDED ORDER ON MOTION FOR ESTABLISHMENT OF BRIEFING SCHEDULE REGARDING AWARD OF ATTORNEYS' FEES UNDER 42 U.S.C. § 1988 − This matter is before the Court on the motion of counsel for Plaintiff Aaron Isby−Israel for establishment of a briefing schedule regarding the award of attorneys' fees under 42 U.S.C. § 1988. The Court, being duly advised in the premises and for good cause shown, finds that the motion, dkt. 276 , should be GRANTED. IT IS THEREFORE ORDERED that 60 days after the later of (i) the expiration of Defendants' time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), if no notice of appeal is filed; or (ii) entry of final judgment after the exhaustion of any appellate process, counsel for Mr. Isby may file their request for attorneys' fees, with supporting evidentiary material. Opposition briefs, if any, will be due 30 days after that filing. Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 1/11/2019. (DMW) (Entered: 01/11/2019)

01/18/2019 288 RESPONSE in Opposition to 279 Defendant Jack Hendrix's Plan for Removal from Restrictive Status Housing, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Exhibit A − Email, # 2 Text of Proposed Order)(Kelley, Daniel) Modified on 1/22/2019 to add link to Dkt. 279(DMW). (Entered: 01/18/2019)

01/22/2019 289 Submission of reply in support of proposed plan 279 , filed by Defendant JACK HENDRIX. (Arthur, David) (Entered: 01/22/2019)

02/13/2019 290 Submission of Plaintiff's Clarification of his Position on the Proposed Plans Submitted by both Parties, filed by Plaintiff AARON ISBY−ISRAEL. (Attachments: # 1 Cover Letter, # 2 Envelope)(DMW) (Entered: 02/14/2019)

02/15/2019 291 NOTICE OF CLARIFICATION OF PLAINTIFF'S PROPOSAL REGARDING INJUNCTIVE RELIEF, filed by Plaintiff AARON ISBY−ISRAEL, re 274 Order. (Rauch, Jason) (Entered: 02/15/2019)

02/19/2019 292 NOTICE OF PROPOSED ORDER ON CLARIFICATION OF PLAINTIFF'S PROPOSAL REGARDING INJUNCTIVE RELIEF, filed by Plaintiff AARON ISBY−ISRAEL, re 291 Notice (Other). (Attachments: # 1 Text of Proposed Order Order Awarding Injunctive Relief) (Kile−Maxwell, Emily) (Entered: 02/19/2019)

03/04/2019 293 ENTRY APPROVING PROPOSED PLAN FOR INJUNCTIVE RELIEF AND RETAINING JURISDICTION OVER ACTION − Having considered the parties' proposals, the Court agrees with the defendants in finding that it lacks the authority to order the IDOC to transfer Mr. Isby to a particular prison of the Court's choice or that of Mr. Isby. Mr.

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Hendrix's proposal falls well within the discretion afforded prison administrators. The Court shall retain jurisdiction over this action for a period of two years from the date of issuance of judgment to ensure that the defendants' placement decisions concerning Mr. Isby comport with due process. Mr. Hendrix's proposed plan, dkt. 279 , is APPROVED. Final judgment consistent with the Entry of December 19, 2018, dkt. 274 , and this Entry shall now issue. (See Entry.) Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 3/4/2019. (DMW) (Entered: 03/04/2019)

03/04/2019 294

FINAL JUDGMENT PURSUANT TO FED. R. CIV. PRO. 58 − The Court having this day made its Entry directing the entry of final judgment, the Court now enters FINAL JUDGMENT. For the reasons detailed in the Court's Order of December 19, 2018, the Court now enters FINAL JUDGMENT in this action in favor of defendants James Wynn, Julie Snider, and Dusty Russell; and as to the remaining claims, in favor of Plaintiff Aaron Isby− Israel and against Defendants Richard Brown, Jack Hendrix, Jerry Snyder, and Beverly Gilmore, as follows: Compensatory damages of $314,000.00; Punitive damages against Richard Brown, $10,000.00; Jack Hendrix, $7,500.00; and Jerry Snyder, $5,000.00; Injunctive relief as set forth in the Entry Approving Proposed Plan for Injunctive Relief issued this same day; Costs and attorney's fees consistent with 42 U.S.C. §§ 1988 and 1997e(d); and Post judgment interest in accordance with 28 U.S.C. § 1961. Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 3/4/2019. (DMW) (Entered: 03/04/2019)

03/18/2019 295 NOTICE of Submission of Bill of Costs, filed by Plaintiff AARON ISBY−ISRAEL, re 294 Closed Judgment. (Attachments: # 1 Exhibit A − Bill of Costs and Itemization for Same) (Kelley, Daniel) Modified on 3/19/2019 to correct event(DMW). (Entered: 03/18/2019)

03/25/2019 296 RESPONSE in opposition to bill of costs [dkt.no. 295], filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER, JAMES WYNN. (Arthur, David) (Entered: 03/25/2019)

04/01/2019 297 REPLY in Support of Motion re 295 IN SUPPORT OF BILL OF COSTS, filed by Plaintiff AARON ISBY−ISRAEL. (Kile−Maxwell, Emily) (Entered: 04/01/2019)

04/02/2019 298 NOTICE OF APPEAL as to 294 Closed Judgment, filed by Defendants RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER. (Filing fee $505, receipt number 0756−5363688) (Arthur, David) (Entered: 04/02/2019)

04/02/2019 299 DOCKETING STATEMENT by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER re 298 Notice of Appeal (Arthur, David) (Entered: 04/02/2019)

04/02/2019 300 PARTIES' SHORT RECORD re 298 Notice of Appeal − Instructions for Attorneys/Parties attached. (copy mailed to plaintiff) (LBT) (Entered: 04/02/2019)

04/02/2019 301 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 298 Notice of Appeal. − for Court of Appeals Use Only. (LBT) (Entered: 04/02/2019)

04/02/2019 302 USCA Case Number 19−1590 for 298 Notice of Appeal filed by BEVERLY GILMORE, JERRY SNYDER, JACK HENDRIX, RICHARD BROWN. (MAT) (Entered: 04/02/2019)

04/05/2019 303 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by RICHARD BROWN, BEVERLY GILMORE, JACK HENDRIX, JERRY SNYDER for proceedings held on 9/25/18−9/26/18 before Judge Hon., Jane E. Magnus−Stinson, re 298 Notice of Appeal (Arthur, David) (Entered: 04/05/2019)

04/09/2019 304

ORDER DIRECTING PAYMENT OF REQUESTED COSTS − The defendants shall pay the costs in the amount of $16,843.98 as requested by plaintiff in his Bill of Costs, filed on March 18, 2019. Dkt. 295 . (See Order.) Copy to Plaintiff via U.S. Mail. Signed by Judge Jane Magnus−Stinson on 4/9/2019. **Emailed to USCA re #19−1590** (DMW) Modified on 4/10/2019 (MAT). (Entered: 04/09/2019)

02/11/2020 305 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Emily A. Kile−Maxwell hereby notifies the Clerk of the court of changed contact information. (Kile−Maxwell, Emily) (Entered: 02/11/2020)

02/11/2020 306 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Jason Rauch hereby notifies the Clerk of the court of changed contact information. (Rauch, Jason) (Entered: 02/11/2020)

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02/11/2020 307 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Daniel R. Kelley hereby notifies the Clerk of the court of changed contact information. (Kelley, Daniel) (Entered: 02/11/2020)
Case #: 2:12−cv−00116−JMS−MJD

 
 Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

2015 WL 5672702 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana,
Terre Haute Division.
Aaron ISBY–ISRAEL, Plaintiff, v.
Bruce LEMMON Commissioner of IDOC, James Wynn Director of classification in the IDOC,
Stanley Knight interim Deputy Commissioner in the IDOC, Richard Brown Superintendent at
W.V.C.F., Jack Hendrix Asst. Superintendent of W.V.C.F., Jerry Snyder unit Team Manager of W.V.C.F., Beverly Gilmore Case Work Manager of W.V.C .F., Julie Snider Counselor of W.V.C.F., Dusty Russell Custody Supervisor of W.V.C.F.,
Defendants.
No. 2:12–cv–00116–JMS–MJD. |
Signed Sept. 25, 2015.
Attorneys and Law Firms
Adam Lenkowsky, Kenneth T. Roberts, Tasha Rebecca Roberts, Roberts & Bishop, Indianapolis, IN, for Plaintiff.
David A. Arthur, Office of the Attorney General, Nikki G. Ashmore, Indiana Attorney General, Indianapolis, IN, for Defendants.
Findings of Fact and Conclusions of Law
JANE MAGNUS–STINSON, District Judge.
*1 The Court conducted a bench trial in this action on July 27 and 28, 2015, in Indianapolis, Indiana. The plaintiff, Aaron Isby–Israel, was present in person and by counsel.1 All defendants were present by counsel and defendant Jerry Snyder was present in person both days. Defendant Brown was also present in person on the second day of trial.

On the second day of trial, counsel for the defendants moved for judgment as a matter of law as to defendants James Wynn, Beverly Gilmore, Julie Snider, Jack Hendrix, and Dusty Russell. That motion was granted as to defendants James Wynn, Julie Snider, and Dusty Russell and denied as to defendants Jack Hendrix and Beverly Gilmore. Defendants Richard Brown, Jack Hendrix, Jerry Snyder, and Beverly Gilmore remain in the action.
The plaintiff’s due process claim was resolved on summary judgment in favor of the defendants. Dkt. 65. The claim remaining for trial is whether the plaintiff’s confinement in segregated housing at the Wabash Valley Correctional Facility (“Wabash Valley”) for almost nine years violates his Eighth Amendment right to be free from cruel and unusual punishment. After consideration of the evidence presented during the bench trial, the Court now issues its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1).2
The plaintiff alleges that some of the conditions of his confinement are as follows:
a. He has been isolated from other prisoners and has no opportunity for social contact with other human beings.
b. He is confined to his single-man, windowless cell 23–24 hours each day.
c. He eats all of his meals alone from food trays passed by correctional officers through a narrow port in the cell door.
d. Lights are kept on around the clock. He suffered from sleep deprivation and he experiences seeing spots, blurred vision, and burning and tearing of his eyes.
e. He has no access to vocational, work, or educational programs that are offered to the general population inmates.
f. His out-of-cell exercise is limited to one hour a day in a cramped enclosed space or cage, with no exercise equipment.
g. He is permitted to shower three times a week, while inmates in general population are allowed to shower daily.
h. General population inmates receive daily access to a

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

telephone, while he is allowed one phone call each week, if that.
i. He has been given new clothes once every several years, while general population inmates are issued new clothing each year.
j. His outgoing and incoming personal and legal mail is subjected to an open mail rule, meaning that it is routinely searched and read by defendants and other staff.
k. During the fall and winter months, the defendants frequently keep the segregation cells too cold as a means of behavior modification and punishment.
l. Hot water is often turned off.
I. Findings of Fact
Mr. Isby–Israel has been incarcerated in the Indiana Department of Correction (“IDOC”) continuously since April 1989, based on a conviction of robbery with serious bodily injury. On or about October 12, 1990, when he was incarcerated at the Pendleton Correctional Facility, a canine unit was ordered into Mr. Isby–Israel’s cell to perform a cell extraction and Mr. Isby–Israel stabbed two correctional officers and stabbed and killed the canine with a homemade weapon. He was convicted of two counts of attempted murder and battery and was sentenced to an additional forty years in prison.
*2 On October 4, 2006, Mr. Isby–Israel was transferred (from the Westville Correctional Facility) to Wabash Valley. He was initially placed in the general population where he remained for 19 days.
On October 23, 2006, Mr. Isby–Israel was placed in department-wide administrative longterm segregation in the Secured Housing Unit or SHU (now called the Special Confinement Unit or SCU). Mr. Isby–Israel has remained in administrative segregation (now called administrative restrictive status housing) since that time except for the period of December 29, 2014, to March 29, 2015, when he was in disciplinary restrictive status housing in the SCU.
Mr. Isby–Israel had four major (Class A or B) conduct reports between 1999 and 2007, but he did not have a

major disciplinary infraction from March 2009, until December of 2014. IDOC policy allows for an offender to be placed in department-wide administrative restrictive housing when that offender has a history of battery on others or presents an extraordinary threat to themselves or others or presents special safety and security concerns. The decision to keep Mr. Isby–Israel in segregated housing is reviewed every month and he may request a full review every 90 days. Mr. Isby–Israel has been kept on department-wide administrative segregation/restrictive status housing because of his past behavior, violent tendencies, inability to cooperate with Wabash Valley staff, and refusal to participate in self-help programs.
On December 15, 2014, Mr. Isby–Israel was using a phone in his cell. Correctional Officer Jaymison Bennett went to the cell to retrieve the phone when Mr. Isby–Israel’s 20 minutes of time was up. Mr. Isby–Israel became angry because the officer did not allow him time to say goodbye. Officer Bennett reported that Mr. Isby–Israel threw the phone toward the cuff port on his cell door. Mr. Isby–Israel testified that he set the phone back on the cuff-port. Video evidence shows that Mr. Isby–Israel took a swipe with his hand toward the officer through the cuff-port. Officer Bennett then sprayed Mr. Isby–Israel with OC spray and wrote him up for attempted battery without a weapon. Mr. Isby–Israel was found guilty of that disciplinary charge.
Mr. Isby–Israel testified that during his whole history in prison he has been involved in “progressive political activity.” He has filed lawsuits charging the administration with mistreatment of himself and other prisoners. He has gone on hunger strikes and brought media attention to how prisoners are treated. He has filed hundreds of grievances.
IDOC policy requires that administrative segregation units be “clean, healthy, safe and secure.” Mr. Isby–Israel resides in a cell that is about 80 square feet. Mr. Isby–Israel is confined to his single-man, windowless cell 23 hours each day. He may be out of the cell for social visits, attorney visits, medical appointments, recreation in the outdoor recreation areas, showers, and meetings with prison staff as needed. He has a television and a desk and is able to do some exercises such as push-ups in his cell. The cell has windows in the interior, through which Mr. Isby can see the range hallway over which there is a skylight. There is also a clock on the range that is visible from Mr. Isby’s cell.
*3 Offenders in the SCU communicate with correctional staff and medical/mental health personnel when they are

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

on the ranges for the passing out of medication and mental status reviews. Offenders may write and receive letters to and from family and friends. Offenders on the SCU may and can communicate orally from cell to cell with other offenders and when they are in the recreation area. Mr. Isby might communicate with another offender either on the range or during recreation if he considers the offender to be compatible with him. Often as offenders communicate on the range other offenders will disrupt the conversation with radios or by speaking loudly. Mr. Isby–Israel sometimes keeps to himself.
Mr. Isby–Israel is allowed one 20 minute personal phone call each week and legal calls as needed, if verified through an attorney or court. Offenders in the SCU are provided access to a telephone by giving the offender a telephone in his cell.
Out-of-cell exercise is provided one hour a day in either a partially enclosed space that is outside of and attached to the range (the housing unit, consisting of 12 cells) or in recreation areas that are outside, eight on each wing, consisting of four chain link sides and a chain link top covered by bird netting and allowing the offenders who are out at the same time to talk with one another through the fences from recreation pad to recreation pad. The exercise equipment available in the recreation areas are limited to a higher than regulation basketball hoop and a pull up bar. Sometimes offenders are unable to use the recreation area due to staff shortages. The IDOC Administrative Procedure sets a minimum of five recreation periods per week.
The cell contains a security light that is on 24 hours per day. That light is between 5 and 9 watts. The wattage depends upon what the supplier has available when the order is placed. Although a former SCU inmate testified that the security lights in the SCU are brighter than those in general population at Wabash Valley, Superintendent Brown testified that the night lights in general population are the same wattage as they are in the SCU. It is undisputed that the security light cannot be controlled or blocked by the inmate. It is against the rules to cover the lights. No rule, however, prohibits an offender from putting a towel, a shirt, or other clothing over his eyes when he sleeps. The main, larger light in each cell can be turned off and on by the inmates. Without the 24 hour security light, officers would not be able to see into the cells when they walk through the ranges.
Mr. Isby–Israel testified that he often has difficulty sleeping because of the 24 hour lighting. He also testified to having headaches which he did not have before he was

confined at Wabash Valley. He testified that he often feels frustrated, angry, and irritable.
On May 14, 2013, Mr. Isby–Israel complained of blurry vision and said he was very nearsighted. He reported that he no longer had his old glasses. Ex. 101, p. 399. New glasses were provided on June 4, 2013. Id., p. 416.
*4 Mr. Isby–Israel sleeps on a thin vinyl covered foam mattress that lays over a concrete slab. In early 2014, Mr. Isby–Israel complained of having back pain that began in 2013. The medical records reflect that his symptoms improved somewhat in July of 2014 with high velocity-low amplitude osteopathic manipulative treatment. Ex. 101, pp. 565–66.
Mr. Isby–Israel is 5′11″. Over the past five years, Mr. Isby–Israel’s weight has fluctuated between 148 and 163 pounds. In September 2010 he weighed 152 pounds and in April 2015 he weighed 148. Mr. Isby–Israel eats all of his meals alone in his cell from food trays passed by correctional officers through a narrow slot (the “cuff port”) in the cell door.
Aramark Food Services contracts with the State to provide meals to inmates. A dietician checks the meals to ensure that they meet nutritional standards. Sample menus placed in evidence reflect that the standard for daily calories for an adult age 19–50 is 2800. Ex. 5. Those menus reflect that the number of calories actually served, averaged on a weekly basis, never matched or exceeded 2800 calories in 2014 and early 2015. Id. Rather, meals usually averaged approximately 2526, or close to 300 calories short of the standard, or approximately 90% of the standard. Id. In their proposed findings of fact, the defendants direct the Court to a U.S. Department of Agriculture dietary guideline which purportedly indicates that a 45–year old sedentary male’s daily caloric need is actually 2200, however, the Court will not make a finding based on materials not offered or discussed at trial, especially in light of the prison’s own menus indicating a different standard.
Mr. Isby–Israel and the other inmates on the SCU are permitted to shower three times a week. Offenders in the SCU are provided a change of clothing once a year with whites exchanged every six months. This is often used clothing and is taken from available stock. Offenders may obtain warmer clothing if they can afford to purchase it from commissary. Mr. Isby–Israel complains that the laundry facilities are inadequate and that his clothes often come back dirty and smelling musty so he tries to hand wash all of his clothes.

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

All outgoing legal and personal mail and incoming personal mail is subjected to an open mail rule so that staff can check for contraband and to ensure that the sender or recipient really is as listed on the envelope. This means that Mr. Isby–Israel’s general, non-legal mail is routinely searched and read. Outgoing legal mail is checked to ensure that it is entitled to treatment as legal mail but is not read, copied, or otherwise interfered with in either sending or receipt.
Temperatures in the SCU are maintained within normal limits, except for some circumstances when it becomes too hot or too cold, which is then addressed by physical plant staff as soon as possible. There was evidence of one occasion when temperatures were so low that other housing was found for the offenders and some had to be forced to move for their own safety.
*5 Mr. Isby–Israel has no physical access to a law library. He must specially order any legal material he needs. There is no evidence that this limitation interfered with his ability to present this case.
Mr. Isby–Israel does not have access to all of the vocational, work, or educational programs that are offered to some general population inmates. There are very few jobs available on the SCU to clean up or do other work on the range.
Mr. Isby–Israel is not now receiving and has not received treatment for mental illness from the mental health staff. Seriously mentally ill inmates are not housed on the SCU. Mr. Isby–Israel has been seen by mental health providers at frequent (weekly, 30 day, and 90 day) intervals to determine whether he has any mental health concerns that would require him to be removed from the SCU. This review is required under the terms of the settlement in Brian Mast, et al. v. J. David Donahue as Commissioner of the Indiana Dept. of Correction, Cause No. 2:05–cv–37–LJM–WGH, docket entries 75, 104. The records of these visits comprise Ex. 101a, and those that contain a report of anything resembling a complaint about mental health are summarized: (pp. 284–85, July 6, 2012, Mr. Isby–Israel reported “I’m doing the best I can under the circumstances.” He reported no current mental health concerns.); (p. 305, Sept. 21, 2012, stated “I’m okay but I’d be better if they let me out of here.” He reported no current mental health concerns .); (p. 394, May 1, 2013, “How do you think I’m doing?” He reported he was the same as last time he was asked. Reported no current mental health concerns, but he appeared frustrated by his situation in segregation.); (p. 464, Oct. 7, 2013, Reported

he was doing alright at this time but did complain about his time in segregation being excessive, 7 years. He was referred to speak with unit team about expectations he could meet to get off segregation. No apparent need for mental health treatment at this time.); (p. 505, Dec. 23, 2013, Doing okay without any significant mental health or medical concerns.); (p. 541, Mar. 26, 2014, Declined offer of private session because he had no particular mental health concerns to discuss that needed privacy, reported he was doing alright at this time, and denied any current mental health concerns); (p. 547, April 23, 2014, same); (p. 558, June 17, 2014, same); (p. 561, July 17, 2014, same); (p. 569, Aug. 13, 2014, same); (p. 596–97, Nov. 3, 2014, same); (p. 606, Dec. 30, 2014, same). The medical records show that no mental illness has been reported to or detected by the mental health staff. Most often, if awake or communicative, Mr. Isby–Israel reports that he is “alright.”
This is not to say that some of Mr. Isby–Israel’s behavior might not be described as antisocial. However, based on his conduct reports and criminal history, it is clear that this sort of behavior in fact pre-dated his time in segregation at Wabash Valley.
*6 Sometimes when mental health staff stop by his cell to make a segregation determination, Mr. Isby–Israel is asleep and does not respond. On those occasions, the mental health staff person notes on the medical chart that he was “unable to assess mental status at this time.” There is no record that Mr. Isby–Israel ever requested but was refused mental health treatment.
The IDOC offers some self-help programs, including the Actions, Consequences and Treatment (“ACT”) Program and the Moral Reconation Program. Both programs are designed to help offenders look at their past behavior and try to formulate a new way of looking at things. The programs include counseling and help inmates learn how to make better decisions. These programs offer a means for inmates to earn their way out of the SCU. In the past, some inmates have also been released from the SCU without having participated in these programs.
In August of 2014, Unit Team Manager Snyder met with Mr. Isby–Israel to advise that Mr. Snyder was considering transferring Mr. Isby–Israel from administrative restrictive status housing. Mr. Snyder advised Mr. Isby–Israel that prison officials were reviewing all offenders who had been in restrictive status housing for five years or more, and that they were going to be recommending in probably all of those cases transfer to the New Castle Correctional Facility transition unit

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

because of the amount of time those inmates had been in a restrictive setting. Any offender recommended for release from the SCU would be recommended for transfer to the transition unit at New Castle.
The IDOC implemented the New Castle transition program to provide a step-down program for offenders who had been in restrictive status housing for more than a couple of years. New Castle has more programming than that available in the SCU, and the transition unit is designed to give offenders a greater opportunity for success in adjusting to general population. The program does involve a therapeutic component that would require an inmate to accept responsibility for his own actions.
When discussing the New Castle program with Mr. Snyder, Mr. Isby–Israel became very adamant about the fact that he would not go and they could not make him go to that unit. He wanted to be released to general population at Wabash Valley. He said that there was no reason for him to go to the New Castle unit because he didn’t need and was not interested in participating in any programs. Mr. Snyder continued to try to talk with him but every time he tried to do so Mr. Isby–Israel would interrupt him. So, Mr. Snyder discontinued the interview and Mr. Isby–Israel was not recommended for release or transfer to the transition unit. Several other long-term segregation inmates were recommended and were transferred to the New Castle program.
Mr. Snyder did not recommend Mr. Isby–Israel for the program because it requires a level of cooperation and it would do Mr. Isby–Israel no good if he refused to participate. Mr. Snyder is concerned that if Mr. Isby–Israel were placed in general population without going through a transition program, his anger issues would present a safety issue for prison staff and other offenders. Mr. Snyder is aware of times during the past few years when Mr. Isby–Israel has been uncooperative, argumentative, and disrespectful of staff. Those incidents are not always written up in conduct reports because when an offender is already in long-term restrictive status housing, some officers overlook some of the “minor” infractions by those offenders.
*7 Mr. Isby–Israel believes that the ACT Program is a “mind restructuring program” “designed to indoctrinate certain prisoners and turn them into snitches.” If Mr. Isby–Israel was interested in participating in programs like the ACT Program, he would have been recommended immediately. Mr. Isby–Israel has chosen not to participate in those types of self-help programs.

II. Conclusions of Law and Analysis
No free citizen can truly comprehend what it must feel like to live in segregated housing in prison, however, all adults in society, free or imprisoned, must learn at some point to take responsibility for their own actions and to understand that introspection into their own behavior can help allow change to occur. When pride or anger or frustration are clung to as a badge of honor, no shift in circumstances can be made. Mr. Isby–Israel is rightfully proud of his vigilance concerning his civil rights, however, his hypervigilance perhaps is sometimes misplaced and is not serving his own desires at this time. It appears that almost every action prison officials take is met with hostility and suspicion. As explained in this Entry, although the Court is greatly disturbed by the length of time that Mr. Isby–Israel has spent in segregation, the Court ultimately finds that Mr. Isby–Israel’s continued placement in that type of housing is currently a result of his own refusal to cooperate in any way with prison officials in efforts to transition him into the general housing population.
“A prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “An Eighth Amendment claim has two components-objective and subjective. To satisfy the objective component, the deprivation alleged must be, objectively, sufficiently serious.” Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir.2001) (internal citations and quotations omitted). “To satisfy the subjective component, a prisoner must demonstrate that prison officials acted with a ‘sufficiently culpable state of mind.’ ” Townsend v. Cooper, 759 F.3d 678, 689 (7th Cir.2014) (quoting Farmer, 511 U.S. at 834).
Courts have added substance to the Eighth Amendment’s “cruel and unusual” language “by consulting the ‘evolving standards of decency that mark the progress of a maturing society.’ ” Delaney, 256 F.3d at 683 (7th Cir.2001) (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). “Thus, conditions which may have been acceptable long ago may be considered unnecessarily cruel in light of our growing understanding of human needs and the changing norms of our society.” Id. (citing Davenport v. DeRobertis, 844

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

F.2d 1310, 1315 (1988) (“The conditions in which prisoners are housed, like the poverty line, is a function of a society’s standard of living. As that standard rises, the standard of minimum decency of prison conditions, like the poverty line, rises too.”)). “ ‘[P]rolonged confinement in administrative segregation may constitute a violation of the Eighth Amendment (and therefore the Fourteenth), depending on the duration and nature of the segregation and whether there were feasible alternatives to that confinement.’ ” Townsend, 759 F.3d at 690 (quoting Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 666 (7th Cir.2012)).
*8 With respect to the effects of segregation on his mental health, Mr. Isby–Israel testified to feeling intense anger, irritability, and difficulty concentrating. He also testified that sometimes he doesn’t feel like getting out of his cell even the few times he has the opportunity to do so. He sometimes chooses not to go to outside recreation because he feels dehumanized by being handcuffed and led by a leash. The Court gives full credit to this testimony, however, it cannot find evidence that Mr. Isby–Israel took advantage of any of the opportunities to speak with mental health practitioners, engage in counseling, or otherwise discuss or attempt to diffuse these difficult circumstances.
“[E]xtreme deprivations are required to make out a conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). “24–hour lighting involving a single, 9–watt fluorescent bulb does not objectively constitute an ‘extreme deprivation.’ “ Vasquez v. Frank, 290 Fed.Appx. 927, 929 (7th Cir. Aug.15, 2008). The testimony from Wabash Valley officials that having some light in each of the cells 24 hours a day is required for security purposes was credible and reasonable. As in Vasquez, “the refusal to turn off the light in [plaintiff’s] cell had a valid penological purpose.” Id. at 930. “But even assuming that 24–hour lighting involving a single 5–watt light bulb might constitute an ‘extreme deprivation’ prohibited by the Eighth Amendment, see Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Gruenberg v. Gempeler, 697 F.3d 573, 579 (7th Cir.2012), we agree with the district court that the guards were not deliberately indifferent to this need. Allowing the plaintiffs to cover their eyes with towels was a reasonable response to their complaints.” Mathews v. Raemisch, 513 Fed.Appx. 605, 607 (7th Cir. March 25, 2013). As in Mathews, Mr. Isby–Israel was allowed to cover his eyes with clothes or towels if the light disturbed his sleep. Inmates in the SCU were only prevented from covering the lights themselves.

“Allowing inmates only two showers and four hours of outside recreation each week does not violate the Eighth Amendment.” Vasquez v. Braemer, 586 Fed.Appx. 224, 228 (7th Cir. Sept.23, 2014) (collecting cases that approved of one shower weekly and three hours weekly of outdoor recreation when indoor exercise was allowed). There is no evidence that the opportunities provided for exercise in the SCU denied movement or caused muscle atrophy. See French v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985). The number of showers and hours of outside recreation made available to Mr. Isby–Israel each week passes constitutional muster.
The evidence supports Mr. Isby–Israel’s testimony that meal portions served in the SCU are small. He is receiving 90% of what Aramark Food Services reports is the proper amount of calories. Inmates are entitled to adequate nutrition. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (The Eighth Amendment imposes duties on prison officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care”). Prisoners do not have a right to “tasty or even appetizing” food. Williams v. Berge, 102 Fed.Appx. 506, 507 (7th Cir. June 24, 2004) (citing Lunsford v. Bennett, 17 F.3d 1574, 1578 (7th Cir.1994) (“cold, poorly prepared beans” did not state Eighth Amendment claim)). In a food deprivation claim, “a court must assess the amount and duration of the deprivation.” Reed v. McBride, 178 F.3d 849, 853 (7th Cir.1999) (citing cases satisfying the objectively serious component when prisoners were not fed for 2–12 days, but depriving one out of every nine meals did not violate the Constitution). The consequences of food deprivation must also be considered. Jaros v. Ill. Dept. of Corr., 684 F.3d 667, 671 (7th Cir.2012) (occasionally missing breakfast did not endanger inmate’s health). Although the Court has concerns that Aramark is not meeting its own caloric standards, Mr. Isby–Israel’s weight over the past five years has not fluctuated greatly, and there is no evidence of any severe health problems caused by the amount or nature of food provided. These circumstances do not violate the Eighth Amendment.
*9 While the evidence showed that Mr. Isby–Israel did not often receive new clothing, he was provided clothing sufficient for his needs. There is no credible evidence that the clothing provided failed to meet his minimal necessities or that any serious problems have resulted from the laundering process.
Even having considered the total effect of Mr. Isby–Israel’s circumstances, the Court finds that they do

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

not rise to the level of extreme deprivation of basic human needs required to satisfy Eighth Amendment standards. Some of those conditions can also be improved by Mr. Isby–Israel himself, if, for example, he chooses to go outside for recreation more often or chooses to speak with a mental health practitioner about his frustration and anger.
The Court is aware of the recent reminder by the Seventh Circuit Court of Appeals to “both prison officials and judges to be alert for the potentially serious adverse consequences of protracted segregation as punishment for misbehavior in prison, especially the kind of nonviolent misbehavior involved in the present case.” Kervin v. Barnes, 787 F.3d 833, 837 (7th Cir.2015). See also Glossip v. Gross, ––– U.S. ––––, ––––, 135 S.Ct. 2726, 2765, 192 L.Ed.2d 761 (2015) (J. Breyer, dissenting) (death penalty case noting that “nearly all death penalty States keep death row inmates in isolation for 22 or more hours per day” and that “it is well documented that such prolonged solitary confinement produces numerous deleterious harms.”).
The Court is also aware of Justice Kennedy’s concurring opinion in a recent capital case, Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015), in which he spoke out on the issue of solitary confinement even though it admittedly had “no direct bearing on the precise legal questions presented by this case.” Id. at 2208. The plaintiff had most likely spent 20 years or more in a windowless cell for 23 hours a day with little or no opportunity to talk or interact with anyone. Id. “The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators.” Id. at 2209. “Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.” Id. at 2210. “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.” Id.
The Court finds that this is not that case. The Court has considered the extreme duration of the segregation, the conditions of Mr. Isby–Israel’s confinement, and whether there were feasible alternatives to that confinement, and concludes that Mr. Isby–Israel has avenues that he could

take to lead him to general population, but he simply has chosen not to attempt them.
*10 Mr. Isby–Israel believes that the programs that would provide a process to ease him into general population are there to brainwash him. The Court is mindful that prison life often presents a battle of wills, and Mr. Isby–Israel has been vigilant in refusing to bend his. But requiring him to complete a program that might demonstrate some acceptance of the consequences of his actions before he is rehoused in general population is not unreasonable. Had he completed such a program and still not been allowed to move to less restrictive housing, this would be a very different case. Had there been evidence that he is seriously mentally ill, or requested and was denied mental health treatment, this would be a very different case. Mr. Isby–Israel cannot be punished forever for killing a canine and attacking prison officers in 1990. But, as long as he remains oppositional to almost every program recommended by prison staff, his circumstances may not change unless department wide changes are made in the standards imposed for segregated housing. This presents a somewhat unique circumstance where feasible alternatives—the New Castle transition program, the ACT program-do exist, but they are alternatives that reasonably require Mr. Isby–Israel to cooperate, and he has steadfastly refused to do so.
The Court cannot say that Mr. Snyder’s concerns about Mr. Isby–Israel’s anger issues are unreasonable. The Court is convinced that if Mr. Isby–Israel had been the least bit willing to cooperate with and participate in programs offered to help him with his transition into general population, he would have been allowed that transfer. The Court urges him to do so.
III. Conclusion
The Court is mindful that “prolonged confinement in administrative segregation may constitute a violation of the Eighth Amendment (and therefore the Fourteenth), depending on the duration and nature of the segregation and whether there were feasible alternatives to that confinement.” Townsend, 759 F.3d at 690 (internal quotation omitted). And prior to trial the Court considered the duration of Mr. Isby–Israel’s confinement in administrative segregation to be stunning, but the Court has found no case under similar circumstances where

Isby-Israel v. Lemmon, Not Reported in F.Supp.3d (2015)

duration alone, coupled with a prisoner’s refusal to

participate in correctional programming, supported a

IT IS SO ORDERED.

finding of a constitutional violation. Based on the

foregoing, the Court finds that the defendants are entitled to judgment in their favor, and the plaintiff shall take

All Citations

nothing from his second amended complaint. Final judgment shall now issue consistent with this Entry and

Not Reported in F.Supp.3d, 2015 WL 5672702

with the Entry of July 30, 2013 (dismissing defendants

Lemmon and Knight).

Footnotes

1

The Court greatly appreciates the capable representation that volunteer counsel, Kenneth Roberts, Adam

Lenkowsky, and Tasha Roberts of Roberts & Bishop provided to the plaintiff.

2

Any finding of fact that is more properly considered a conclusion of law is adopted as such. Similarly, any conclusion

of law that is more properly considered a finding of fact is adopted as such.

 
 Isby-Israel v. Wynn, Not Reported in F.Supp.3d (2014)

2014 WL 2866197 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana,
Terre Haute Division. Aaron ISBY–ISRAEL, Plaintiff,
v. James WYNN, et al., Defendants.
No. 2:12–cv–116–JMS–MJD. |
Signed June 24, 2014.
Attorneys and Law Firms Aaron Isby-Israel, Carlisle, IN, pro se. David A. Arthur, Office of the Attorney General, Indianapolis, IN, for Defendants. James Wynn, pro se. Stanley Knight, pro se. Jack Hendrix, pro se.
Entry Granting Defendants’ Motion for Summary Judgment and Directing Further Proceedings
JANE MAGNUS–STINSON, District Judge. *1 For the reasons explained in this Entry, the defendants’ motion for summary judgment on the plaintiff’s due process claim [dkt. 52] is granted.

Aaron Isby–Israel (“Isby–Israel”), an inmate currently in custody at the Wabash Valley Correctional Facility (“Wabash Valley”). The remaining defendants are Director of Classification James Wynn, Superintendent Richard Brown, Assistant Superintendent Jack Hendrix, Unit Team Manager Jerry Snyder, Counselor Julie Snider, Casework Manager Beverly Gilmore, and Custody Supervisor Dusty Russell. Isby–Israel alleges in his second amended complaint that the defendants have violated his Fourteenth Amendment due process and Eighth Amendment rights by keeping him in Special Housing Unit Administrative Segregation for more than five years without a hearing or review process. He seeks damages and injunctive relief. See Dkt. 14.
The defendants seek resolution of Isby–Israel’s due process claim through the entry of summary judgment. The defendants have not addressed the Eighth Amendment claim. Isby–Israel has opposed the motion for summary judgment.
II. Summary Judgment Standard
Summary judgment is appropriate 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(a). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The Court views the facts in the light most favorable to the non-moving party and all reasonable inferences are drawn in the non-movant’s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir.2011).

I. Background The plaintiff in this 42 U.S.C. § 1983 civil rights action is

III. Discussion

Isby-Israel v. Wynn, Not Reported in F.Supp.3d (2014)
A. Undisputed Facts On the basis of the pleadings and the portions of the expanded record that comply with the requirements of Rule 56(c)(1), construed in a manner most favorable to Isby–Israel as the non-moving party, the following facts are undisputed for purposes of the motion for summary judgment.
Isby–Israel has been incarcerated in the Indiana Department of Correction (“IDOC”) since before 1990. On October 12, 1990, Isby–Israel was incarcerated at Pendleton Correctional Facility (“Pendleton”), and on that date he hit a unit counselor in the face. Pendleton’s staff performed a cell extraction on Isby–Israel due to the assault. A canine unit was ordered into Isby–Israel’s cell, and Isby–Israel then produced a concealed, homemade weapon and stabbed and killed the canine. Isby–Israel also stabbed two correctional officers. Isby–Israel was convicted of two counts of attempted murder and sentenced to an additional forty years in prison.1
*2 On or about October 4, 2006, Isby–Israel was transferred (from the Westville Correctional Facility) to Wabash Valley. He was initially placed in the general population. On October 23, 2006, he was placed in long-term segregation under department-wide SHU administrative segregation.2
Isby–Israel has remained in administrative segregation for at least seven years (as of the date of Isby–Israel’s response to the defendants’ motion for summary judgment filed on October 10, 2013 (dkt.56)).3 Between 1999 and 2007, Isby–Israel received three major conduct reports, meaning Class A or B, including battery (6/4/99), intimidation (10/13/05), and disorderly conduct (10/5/07). Isby–Israel has not been convicted of any disciplinary charges of a violent nature in the past seven years. In addition, he has not had a major disciplinary infraction during the period of March 25, 2009, through October of 2013.
IDOC Policy # 01–04–101, “Adult Offender Classification,” allows for an offender to be placed in department-wide administrative segregation when that offender has a history of battery on others or presents an extraordinary threat to themselves or others or presents special safety and security concerns. Under IDOC policy, offenders housed in department-wide administrative segregation are reviewed for continued placement there every thirty (30) days.4 The thirty-day review consists of examining the offender’s Case Plan and other documents related to behavior, conduct, safety concerns, conduct reports, and history. It does not include a formal hearing.

Offenders in department-wide administrative segregation may request a full review of continued placement every ninety (90) days. If a request is made, the formal review includes a hearing. A casework manager interviews the offender and submits a report to the Review Committee and Unit Team Management who then decides whether or not to keep the offender segregated.
Isby–Israel has been reviewed for continued placement in department-wide administrative segregation every thirty (30) days. The parties disagree as to how many times Isby–Israel has requested a full review of his continued administrative segregation status. The defendants assert that he has requested a full review twice. Isby–Israel states that he has made more than ten such requests since December 19, 2009. It is undisputed that full reviews were conducted on or about April 7, 2011, and June 27, 2011, and both included interviews with Isby–Israel and a report that was reviewed by the Review Committee. Isby–Israel states in his affidavit that he requested a full review on June 18, 2012, and May 3, 2013, but was not afforded an in-person interview.
Isby–Israel has been kept on department-wide administrative segregation because of his extensive conduct report history, past behavior, violent tendencies, his inability to cooperate with Wabash Valley staff, and other factors.
In his affidavit, Isby–Israel describes some of the conditions of his confinement as follows: He has been isolated from other prisoners and has no opportunity for social contact with other human beings. He is confined to his single-man, windowless cell 23–24 hours each day. He eats all of his meals alone from food trays passed by guards through a narrow port in the cell door. Lights are kept on around the clock. He suffers from sleep deprivation and he experiences seeing spots, blurred vision, and burning and tearing of his eyes. He has no access to vocational, work, or educational programs that are offered to the general population inmates. His out-of-cell exercise is limited to one hour a day in a cramped enclosed space or cage, with no exercise equipment. He further states that he is permitted to shower three times a week, while inmates in general population are allowed to shower daily. He states that general population inmates receive daily access to a telephone, while he is allowed one phone call each week, if that. He has been given new clothes once every several years, while general population inmates are issued new clothing each year. His outgoing and incoming personal and legal mail is subjected to an open mail rule, meaning

Isby-Israel v. Wynn, Not Reported in F.Supp.3d (2014)
that it is routinely searched and read by defendants and other staff. During the fall and winter months, the segregation cells are frequently kept too cold with the use of air conditioning by defendants as a means of behavior modification and punishment. Hot water is often turned off as well.
B. Analysis
Due Process Claim *3 In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held that due process liberty interests prohibit restraints which impose an “atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life.” Id. at 484. Although prison inmates do not have a constitutional right to remain in general population, see Lekas v. Briley, 405 F.3d 602, 608–09 (7th Cir.2005), in determining whether an atypical and significant hardship exists invoking due process, “both the duration and the conditions of the segregation must be considered.” Marion v. Columbia Correctional Inst., 559 F.3d 693, 698 (7th Cir.2009). “[I]f the conditions of segregation were significantly harsher than those in the normal prison environment, then a year of [segregation] might count as a deprivation of liberty where a few days or even weeks might not.” Id. (internal quotation omitted).
“240 days in conditions materially more onerous than ‘the ordinary incidents of prison life,’ could deprive a person of a ‘liberty.’ ” Marion v. Radtke, 641 F.3d 874, 875 (7th Cir.2011) (quoting Sandin, 515 U.S. at 484). The “evaluation depends on the actual conditions of confinement and not simply ... a review of state regulations.” Id. (internal quotation omitted). See also Wilkinson v. Austin, 545 U.S. 209, 224, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (conditions in Ohio supermax prison whereby almost all human contact was prohibited, conversation from cell to cell was not permitted, the light was on 24 hours a day, exercise was allowed 1 hour per day in a small indoor room, review was provided annually, and placement disqualified inmates from parole consideration, together gave rise to a liberty interest).
The defendants have provided no evidence as to the conditions of Isby–Israel’s confinement for the past seven years, as contrasted with inmates confined in general

population. Given the length of time Isby–Israel has been confined in administrative segregation, however, and accepting Isby–Israel’s undisputed sworn statements concerning the conditions of his confinement as true for purposes of the summary judgment motion, the Court finds that a due process liberty is at stake. The Court moves on to consider the question “what process is required?”
The Supreme Court has held that “[p]rison officials must engage in some sort of periodic review of the confinement of [inmates in administrative segregation].” Hewitt v. Helms, 459 U.S. 460, 477 n. 9, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (abrogated on other grounds by Sandin, 515 U.S. at 484). “This review will not necessarily require that prison officials permit the submission of any additional evidence or statements.” Id. When a due process liberty interest is at stake, such as here, an inmate is entitled to “some informal, non-adversarial” procedures. Westefer v. Neal, 682 F.3d 679, 684–85 (7th Cir.2012). Informal due process under these circumstances requires a periodic review of the placement determination at a frequency sufficient to ensure that “administrative segregation does not become ‘a pretext for indefinite confinement.’ ” Id. (quoting Hewitt v. Helms, 459 U.S. 460, 477, 103 S.Ct. 864, 74 L.Ed.2d 675 n. (1983)). The determination of the frequency of periodic review is committed to the discretion of prison officials. Id.; see also Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir.1990) (120 day interval satisfied due process). In sum, “the requirements of informal due process leave substantial discretion and flexibility in the hands of the prison administrators.” Westefer, 682 F.3d at 685.
*4 Isby–Israel argues that during his seven years of confinement in department-wide administrative segregation, all of the thirty (30) day review decisions sent to him contain essentially the same language and information, with occasional updates. The reasons given for continuing his confinement have been: “Your status has been reviewed and there are no changes recommended to the Southern Regional Director at this time. Your current department-wide administrative segregation status shall remain in effect unless otherwise rescinded by the Southern Regional Director.”
The defendants argue that Isby–Israel’s due process rights have not been violated. They assert that he was initially placed in department-wide segregation because he killed a canine and tried to kill two human correctional officers while incarcerated in 1990, and he has received periodic reviews every thirty (30) days since that time. They contend that the Court should give deference to the

Isby-Israel v. Wynn, Not Reported in F.Supp.3d (2014)

IDOC’s determination that Isby–Israel’s continued placement in segregation is warranted because he remains a security threat to the facility. They also argue that Isby–Israel has been provided all of the process to which he is entitled: thirty (30) day reviews and a full review with the offender’s presence every ninety (90) days when requested by Isby–Israel. The Court agrees.
It is undisputed that during Isby–Israel’s time in administrative segregation, he has received periodic reviews of that placement every thirty (30) days. Isby–Israel argues that such review has been perfunctory, but he has not cited to any authority which requires additional process. The required process is informal and non-adversarial. Isby–Israel also has an opportunity for more formal hearings every ninety (90) days, which goes beyond what is required by the Constitution. The parties dispute whether Isby–Israel has requested any ninety (90) day reviews since 2011. This does not create a genuine issue of material fact, however, because he has received thirty (30) day reviews. As noted above, prison officials must be accorded substantial discretion and flexibility in determining the security risks presented by offenders in administrative segregation. Under these circumstances, the defendants are entitled to summary judgment on Isby–Israel’s due process claim. Because there has been no violation of Isby–Israel’s due process rights, the Court need not reach the defendants’ additional defense that they are entitled to qualified immunity. Mucha v. Village of Oak Brook, 650 F.3d 1053, 1057–58 (7th Cir.2011) (when there is no constitutional violation, defendants “do not require the additional protection of qualified immunity.”).

“depends on the duration and nature of the segregation and the existence of feasible alternatives.” Walker v. Shansky, 28 F.3d 666, 673 (7th Cir.1994); see also Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 666 (7th Cir.2012) (acknowledging the possibility that long-term administrative segregation could violate the Eighth Amendment). The defendants have not addressed this claim at all. Therefore, the plaintiff’s Eighth Amendment claim remains pending.
IV. Conclusion
A. *5 For the reasons discussed above, the defendants’ motion for summary judgment [dkt. 52] as to plaintiff’s due process claim is granted. No partial final judgment shall issue at this time.
B.

This ruling leaves pending the Eighth Amendment claim. The parties shall have through July 23, 2014, in which to propose a schedule for resolving this matter, whether by settlement, trial or further dispositive motion.

Eighth Amendment Claim The defendants have not sought summary judgment on

IT IS SO ORDERED.

Isby–Israel’s Eighth Amendment claim. The Eighth

Amendment requires the state to provide prisoners with “the minimal civilized measure of life’s necessities.”

All Citations

Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Whether prolonged confinement in

Not Reported in F.Supp.3d, 2014 WL 2866197

administrative segregation constitutes cruel and unusual

punishment in violation of the Eighth Amendment

Footnotes

1

Isby–Israel’s objection to Ms. Gilmore’s affidavit as hearsay is overruled. Further, her statements do not constitute

evidence of prior crimes to prove character under Rule 404(b) of the Federal Rules of Evidence. As Isby–Israel’s

Isby-Israel v. Wynn, Not Reported in F.Supp.3d (2014)

casework manager, her sworn statements are admissible to explain Isby–Israel’s conduct history and the basis for his original and continued placement in administrative segregation.

2

Although Isby–Israel states in his affidavit that he was not given a hearing when he was placed in long term

segregation in October of 2006, the two-year statute of limitations has expired on any constitutional claim based on

that allegation.

3

Isby–Israel refers to various requests for admissions in support of his factual allegations, but those requests were

merely submitted when he filed this lawsuit. Such requests were not properly served on the defendants at the

proper time, and therefore any allegations contained therein are not deemed admitted for purposes of the

summary judgment motion. See Rule 36 of the Federal Rules of Civil Procedure.

4

Ind.Code § 11–10–1–7 provides that an offender may be involuntarily segregated from the general population if the

IDOC first finds that “segregation is necessary for the offender’s own physical safety or the physical safety of

others,” and that the IDOC “shall review an offender so segregated at least once every thirty (30) days to determine

whether the reason for segregation still exists.” Ind.Code § 11–10–1–7(a) and (b).

 
 Isby-Israel v. Lemmon, Not Reported in F.Supp.2d (2012)
2012 WL 3966363 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana.
Aaron ISBY–ISRAEL, Plaintiff, v.
Bruce LEMMON, Commissioner of IDOC, et al., Defendants. No. 2:12–cv–116–JMS–MJD. | Sept. 10, 2012.
Attorneys and Law Firms Aaron Isby–Israel, Carlisle, IN, pro se.
Entry Discussing Amended Complaint and Directing Further Proceedings
JANE MAGNUS–STINSON, District Judge.
I. *1 The 26–page amended complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.2006). Pursuant to this statute, “[a] complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show that plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007). To satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil Procedure, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief,” which is sufficient to provide the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and quoting Fed.R.Civ.P. 8(a) (2)). To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotations omitted). Pro se complaints such as that filed by Aaron Isby–Israel, are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94; Obriecht v. Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir.2008).

Isby-Israel v. Lemmon, Not Reported in F.Supp.2d (2012)
II. Four claims are apparent in the amended complaint, each of which is discussed below. As a preliminary matter, any claims thought to be brought by plaintiff Aaron Isby–Israel on behalf of other inmates are dismissed without prejudice. The plaintiff is not an attorney and does not have standing to assert the rights of other plaintiffs, and no right to act on their behalf. O’Bam v. Hawk, 451 S.E.2d 456, 1994 WL 692969 (N.D. Ind 1994) (citing Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Newsom v. Norris, 888 F.2d 371, 381 (6th Cir.1989); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir.1988); Gometz v. Henman, 807 F.2d 113, 115 (7th Cir.1986); Adams v. James, 784 F.2d 1077 (11th Cir.1986); Martin v. Sargent, 780 F.2d 1334 (8th Cir.1985)).
A. Grievance Process The claim that the defendants interfered with the grievance process in order to prevent the plaintiff from filing a lawsuit is dismissed for failure to state a claim upon which relief may be granted. It is true that the Prison Litigation Reform Act requires that a prisoner exhaust his available administrative remedies before bringing a suit concerning prison conditions. 42 U.S.C.1997e(a); Porter v. Nussle, 534 U.S. 516, 524–25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). It has been recognized, however, that “a remedy becomes ‘unavailable’ if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.” See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). Given these circumstances, the plaintiff has failed to “make specific allegations as to the prejudice suffered because of the defendants” alleged conduct[ ] and any right to access-to-courts claim is dismissed. Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.2003). Further, the Seventh Circuit has “specifically denounc [ed] a Fourteenth Amendment substantive due-process right to an inmate grievance procedure.” Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir.2008). As explained in Antonelli v. Sheahan, 81 F.3d 1422, 1430–31 (7th Cir.1996), “any right to a grievance procedure is a procedural right, not a substantive one. Accordingly, a state’s inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause.” Id. at 1430–31 (internal citations omitted). Because the plaintiff had no expectation of a particular outcome of his grievances, there is no viable claim which can be vindicated through 42 U.S.C. § 1983. Juriss v. McGowan, 957 F.2d 345, 349 n. 1 (7th Cir.1992) (without a predicate constitutional violation one cannot make out a prima facie case under 1 1983).
B. International Law *2 The plaintiff alleges that the defendants’ actions violate international law such as the International Covenant on Civil and Political Rights (ICCPR), Article 7 and 79 to the United Nations Basic Principles for the Treatment of Prisoners. But, the ICCPR is not self-executing and does not give rise to a private cause of action. Sosa v. Alvarez–Machain, 542 U.S. 692, 734–35, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004); Clancy v. Office of Foreign Assets Control of U.S. Dept. of Treasury, 2007 WL 1051767, 17 (E.D.Wis.2007). Similarly, this court is not aware of any authority which supports the position that the United Nations Basic Principles for the Treatment of Prisoners creates a private cause of action. Accordingly, any claims based on international law are dismissed.

Isby-Israel v. Lemmon, Not Reported in F.Supp.2d (2012)
C. Eighth Amendment The plaintiff alleges that the conditions of confinement in administrative segregation violate the Eighth Amendment prohibition against cruel and unusual punishment. This claim shall proceed as submitted consistent with Part III of this Entry.
D. Due Process The plaintiff alleges that his placement in administrative segregation for more than five years without a hearing or review process violates his right to due process. This claim shall proceed as submitted consistent with Part III of this Entry.
III. The plaintiff shall have through October 1, 2012, in which to file a statement of remaining claims. Given the rulings in Part II of this Entry, the statement of remaining claims should identify the circumstances associated with the alleged violation of plaintiff’s Eighth Amendment and Due Process rights and for each such alleged violation, identify what role any of the defendants played in personally causing the alleged violation. As discussed in Part II of this Entry, four claims for relief were identified by the court. If the plaintiff intended to advance additional claims he should restate such claims in his statement of remaining claims. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2012 WL 3966363

 
 Isby v. Brown, 856 F.3d 508 (2017)

856 F.3d 508 United States Court of Appeals, Seventh Circuit.
Aaron E. ISBY, Plaintiff–Appellant, v.
Richard BROWN, et al. Defendants–Appellees.
No. 15-3334 |
Argued February 8, 2017 |
Decided May 10, 2017
Synopsis Background: State inmate brought § 1983 action against prison officials, alleging that his continued placement in administrative segregation violated his Eighth Amendment right to be free from cruel or unusual punishment and that he had not been afforded adequate review of his continued assignment to administrative segregation in violation of due process. The United States District Court for the Southern District of Indiana, No. 2:12–cv–116–JMS–MJD, Jane E. Magnus–Stinson, Chief Judge, 2014 WL 2866197, granted officials’ motion for summary judgment on due process claim, and 2015 WL 5672702, following bench trial, entered judgment against inmate on his Eighth Amendment claim. Inmate appealed.
Holdings: The Court of Appeals, Flaum, Circuit Judge, held that:
Court of Appeals would exercise its discretion to consider the merits of inmate’s claims, even though inmate failed to alert the court to his “three strikes” under PLRA for filing frivolous suits that restricted him from proceeding in forma pauperis;
conditions of inmate’s prolonged administrative segregation were not sufficiently serious, and thus did not violate inmate’s Eighth Amendment right to be free from cruel and unusual punishment; and
genuine issues of material fact existed as to whether inmate’s 30-day reviews of his continued placement in administrative segregation for over ten years were meaningful or pretextual, precluding summary judgment on inmate’s due process claim and on officials’ qualified

immunity defense.
Affirmed in part, reversed in part, and remanded.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
*511 Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:12–cv–116–JMS–MJD—Jane E. Magnus–Stinson, Chief Judge.
Attorneys and Law Firms
Ishan Bhabha, Attorney, Jenner & Block LLP, Washington, DC, Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Plaintiff–Appellant.
Aaron T. Craft, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants–Appellees. Before Wood, Chief Judge, Flaum, Circuit Judge, and Conley, District Judge.*
Opinion
*512 Flaum, Circuit Judge.
Aaron E. Isby has been held in administrative segregation—or, as it is better known, solitary confinement—for over ten years and counting. He filed suit against various prison employees under 42 U.S.C. § 1983, alleging that his continued placement in administrative segregation violated his Eighth Amendment right to be free from cruel or unusual punishment as well as his Fourteenth Amendment rights under the Due Process Clause. Isby sought leave to proceed in forma pauperis in the district court, despite having already accumulated three “strikes” for filing frivolous suits or appeals and thus being restricted under the Prison Litigation Reform Act (“PLRA”) from seeking pauper status. 28 U.S.C. § 1915(g). Unaware of Isby’s strikes, the district court granted Isby’s request. The court later granted summary judgment in favor of defendants on the due process claim, and, following a bench trial, entered judgment against Isby on his Eighth Amendment claim.
Still unaware of Isby’s three-strikes status, the district court granted him leave to proceed in forma pauperis on

Isby v. Brown, 856 F.3d 508 (2017)
appeal. After briefing on appeal was complete, Isby’s restricted status came to our and the parties’ attention; and two days prior to oral argument, defendants-appellees moved to dismiss this appeal “due to [Isby’s] deceptive acts in failing to inform the district court of his numerous ‘strikes’ under the [PLRA].” For the reasons that follow, we deny the motion to dismiss, affirm the district court with respect to Isby’s claim under the Eighth Amendment, and reverse and remand for further proceedings on Isby’s due process claim.
I. Background
A. Factual Background In 1989, Isby was convicted of robbery resulting in serious bodily injury and incarcerated at the Pendleton Correctional Facility in Indiana. In October of the following year, a counselor at Pendleton allegedly became verbally abusive. In response, Isby hit him in the face, resulting in officers gassing Isby and entering his cell with dogs, a fire hose, and a fully-armored cell-extraction team. In the ensuing altercation, one of the dogs was killed, and Isby stabbed two correctional officers—one in the neck, and the other in the head, through a helmet. See Isby v. Clark, 100 F.3d 502, 504 (7th Cir. 1996). Isby was subsequently convicted of two counts of attempted murder and battery, and sentenced to an additional forty years in prison.
After his second conviction, Isby was moved among various facilities in Indiana and received several major-conduct reports for Class A or B infractions, including battery (in June 1999) and intimidation (in October 2005). On October 4, 2006, Isby was transferred to the Wabash Valley Correctional Facility. During his first nineteen days at Wabash Valley, he was housed in the general population and was not involved in any infractions, write-ups, or disturbances. On October 23, however, Isby was transferred to department-wide administrative long-term segregation (now called administrative restrictive-status housing) in the Secured Housing Unit (“SHU,” now called the “Special Confinement Unit” or “SCU”).1 Isby has remained *513 in the SCU since that time.2

Isby’s cell is approximately eighty square feet, and he remains inside it for twenty-three hours each day. There are windows through which Isby can see the hallway with a skylight, and a hallway clock is also visible from Isby’s cell. He has a television and desk and is able to do some exercises such as push-ups in his cell. Isby is limited to one hour per day of out-of-cell exercise in a small outdoor enclosure surrounded by a chain-link fence with a basketball hoop and a pull-up bar. A number of witnesses testified that the outdoor exercise area is frequently covered in bird feces or even dead birds, which the facility refuses to clean. Isby testified that in light of these conditions, including that he is forced to wear a “nylon dog leash” when outside, he sometimes declines the one hour of outside time allotted to him. Another inmate formerly assigned to the SCU testified that the cramped living conditions prevented him from getting sufficient exercise, such that when he was finally released back into the general population, he “sweated profusely” while walking and “almost fainted.”
Per the district court’s findings at trial, Isby also may be outside his cell for social visits, attorney visits, medical appointments, showers, and meetings with prison staff as needed. However, because Isby is housed in the SCU, he does not have access to the vocational, work, or educational programs offered to general-population inmates. Isby is also limited to one personal phone call each week (and legal calls as needed), whereas general-population inmates receive daily telephone access. Isby may communicate with correctional staff when they are on the range (i.e., cell block), as well as with medical and mental-health personnel when they pass out medication and conduct mental-status reviews. He also may communicate orally with other inmates when they are in the recreation area and from cell to cell, though when inmates communicate on the range, other inmates will sometimes disrupt the conversation with radios or by speaking loudly. Isby can send letters to and receive mail from family and friends; but all outgoing legal and personal mail and incoming personal mail is subject to an open-mail rule so that staff can check for contraband and ensure that the sender or recipient matches who is listed on the envelope.3
The district court found that cells in the SCU contain security lights that vary between *514 five and nine watts and are on twenty-four hours per day, so that officers can see into the cells when they walk through the ranges. A former inmate testified that the lights in the SCU are brighter than those in general population, but defendant Richard Brown, the Superintendent of Wabash Valley, testified that they are the same wattage. Inmates are not

Isby v. Brown, 856 F.3d 508 (2017)
able to control the lights, and it is against prison rules to attempt to cover the light, including during nighttime hours. No rule, however, prohibits an inmate from putting a towel, shirt, or other clothing over his eyes when he sleeps. A number of inmates (including Isby) testified that their vision or sleep has been adversely affected by the twenty-four hour lighting, and that they have developed headaches.
The district court found that temperatures in the SCU are maintained within normal limits, although the court noted that, on at least one occasion, temperatures approached forty degrees, and some inmates had to be moved to other housing for their own safety. Various inmates testified that they “freeze” during the winter and “burn ... up” in the summer. Regardless of the season, inmates sleep on a thin, vinyl-covered foam mattress laid over a concrete slab, with a light knitted blanket and two sheets. Isby complains that these sleeping arrangements started causing him back problems in 2013. His medical records reflect that his symptoms improved somewhat by July 2014 with osteopathic manipulative treatment.
Isby has eaten all of his meals alone from food trays passed by correctional officers through a narrow port in the cell door. Aramark Food Services contracts with Indiana to provide meals to prison inmates, including those housed in the SCU. Sample Aramark menus introduced during trial reflect that the standard daily caloric intake for an adult male is 2800 calories per day, but the actual number of calories served, averaged over a weekly basis, has never matched or exceeded this standard.4 Numerous inmates testified at trial that both the quantity and quality of the food is poor. One SCU inmate also testified that the water in the SCU is rusty, and that if an inmate does not boil the water before consuming it, he will “end up feeling nauseated, sick, diarrhea.” Isby is five feet, eleven inches tall, and over the past five years, his weight has fluctuated between 148 and 163 pounds. In September 2010 he weighed 152 pounds, and in April 2015 he weighed 148.5
Inmates in the SCU are allowed to shower three times a week (as opposed to daily in the general population), and trial testimony reflected that the water in the showers alternates between “scalding hot” and freezing cold. Inmates also testified that toilets do not flush adequately, in some instances leaving feces, or the odor of feces, present in a cell for multiple days. SCU inmates are provided with a change of clothing once a year and new underwear every six months. The standard-issue clothing for a SCU inmate is a thin red jumpsuit. In winter, inmates are also provided with a “very, very thin” coat,

and, if they can afford it, they have the option of purchasing additional warm clothing from the commissary. During trial, a number of *515 inmates testified that when they send clothes to the laundry to be washed, they come back dirty and damaged. Isby said that he hand washes his clothing for that reason. However, Chris Nicholson, a correctional lieutenant with responsibility over the SCU, testified that clothes generally come back clean, and that there have been maybe three occasions in four years when laundry was returned dirty due to a malfunctioning dryer.
A number of inmates, including Isby himself, testified to feelings of anger, frustration, and helplessness resulting from prolonged and isolated detainment in the SCU. However, Isby is not receiving and has not received treatment for mental illness, and seriously mentally ill inmates are not housed in the SCU. Isby has been seen by mental-health providers at weekly, thirty-day, and ninety-day intervals to determine whether he has any mental-health concerns that would require him to be removed from the SCU. Records of these visits from 2012 to 2014 show that Isby reported no mental-health concerns, though he said things like, “I’m doing the best I can under the circumstances,” “I’m okay but I’d be better if they let me out of here,” and “How do you think I’m doing,” and complained about his time in segregation being excessive. There is no record that Isby ever requested but was refused mental-health treatment.
Inmates in administrative segregation have their placement reviewed every thirty days.6 The review consists of Wabash Valley staff members examining the offender’s Case Plan and other documents related to conduct, history, and safety concerns. The IDOC does not require a formal hearing as part of these thirty-day reviews.7
In the over-ten-year period that Isby has been assigned to the SCU, IDOC’s stated reason for his continued placement following each review has been the same: “Your status has been reviewed and there are no changes recommended to the Southern Regional Director at this time. Your current Department-wide Administrative segregation status shall remain in effect unless otherwise rescinded by the Southern Regional Director.” During the 2015 bench trial on Isby’s Eighth Amendment claim, Lieutenant Nicholson testified that he had never recommended that Isby be released from the SCU between 2006 and the present time “[b]ecause he killed a ... dog and stabbed two officers,” referring to the incident that had occurred in 1990. In response to questions from the court, Jerry Snyder, the SCU Unit Team Manager,

Isby v. Brown, 856 F.3d 508 (2017)
testified at trial that he had never recommended that Isby be released from the SCU because of the incident in 1990, because Isby had not signed up for two voluntary programs offered by IDOC to recondition inmates housed in the SCU for return to the general population, and because Isby had been “extremely argumentative and disrespectful with staff.” The record shows that Isby received a major-conduct report for disorderly conduct in October 2007, but that he had no major disciplinary infractions from early 2009 until December 2014.8 Snyder testified, *516 however, that he was aware of incidents during the past few years when Isby has been uncooperative with staff, and that these incidents were not always written up in conduct reports because some officers overlook “minor” infractions by offenders already in long-term restrictive housing.
Offenders in the SCU may also request a more formal review of their placement every ninety days. If such a request is made, a casework manager interviews the inmate and submits a report to the Review Committee and Unit Team Management, who then decide whether or not to keep the inmate segregated from the general population. According to Snyder, documents used in the thirty-day reviews are initially reviewed by the case worker assigned to the inmate, and then by various other individuals up the chain of command, culminating in a review by Snyder himself, and, if release from the SCU is recommended, by the executive director of operations for the IDOC in Indianapolis. The parties dispute the extent to which Isby has requested any such hearing. Defendant Beverly Gilmore, a case worker at Wabash Valley, claimed that Isby requested only two ninety-day reviews, and it is undisputed that full reviews were conducted on or about April 7, 2011, and June 27, 2011, both of which included interviews with Isby and reports considered by the Review Committee. In contrast, Isby asserted in an October 2013 affidavit that he has requested this more formal review “over [t]en times since December 19, 2009,” with his most recent requests for review being submitted in June 2012 and May 2013.
The IDOC also offers self-help programs designed to assist offenders with examining their past behavior and formulating new perspectives. Two of these programs are the Actions, Consequences, and Treatment (“ACT”) Program and the Moral Reconation Program. They both include counseling to help inmates learn how to make better decisions. To participate in the ACT Program, the offender must write a request to his caseworker, and the caseworker and Unit Team Manager Snyder choose the participants. The fifth and last phase in the ACT Program involves release from the SCU and transfer to a different

unit or facility. The Moral Reconation Program is a twelve-phase cognitive-behavior program, and an offender must likewise make a request in order to participate. These programs offer a means for inmates to potentially earn their way out of the SCU, though in the past, some inmates have also been released from the SCU without having participated in these programs.
Isby believes that the ACT Program is a “mind restructuring program ... designed to ... indoctrinate certain prisoners and turn them into snitches.” Isby has declined to participate in these types of programs. According to defendants-appellees, had Isby expressed interest in participating in either program, he would have been recommended immediately.
The IDOC has also implemented the New Castle Correctional Facility transition program, a step-down program for offenders who have been in restrictive-status *517 housing for several years or longer. The New Castle transition unit has more programming than that available in the SCU, and the unit is designed to give offenders a greater opportunity for success in adjusting to the general population. The program involves a therapeutic component requiring an inmate to accept responsibility for his own actions.
In August 2014, Snyder advised Isby that Snyder was considering transferring Isby from the SCU to the New Castle transition unit. Snyder explained that prison officials were reviewing all offenders who had been in restrictive-status housing for five or more years, and that officials probably would recommend transfer to New Castle in all of those cases because of the length of time the inmates had been in a restrictive setting. While discussing the program, Isby became adamant that he would not go and that they could not make him go to New Castle. He said there was no reason for him to go to the New Castle transition unit because he did not need to and was not interested, and he demanded to be released to general population at Wabash Valley. Snyder continued to try to talk to Isby, but Isby kept interrupting him. Snyder eventually discontinued the interview, and although several other long-term segregation inmates were recommended for and transferred to New Castle, Isby received no such recommendation or transfer. Snyder said he did not recommend Isby for the program because it requires cooperation. Snyder also expressed concern at the bench trial that if Isby were placed in general population without going through a transition program, his anger issues would present a safety concern for other offenders and prison staff.

Isby v. Brown, 856 F.3d 508 (2017)
B. Procedural Background Isby filed this lawsuit in May 2012, and the district court granted his request to proceed in forma pauperis. His second amended complaint alleged, among other things, that his then six-year (and now ten-year) assignment to the SCU violated the Eighth Amendment’s prohibition on cruel and unusual punishment, and that he had not been afforded adequate review of his continued assignment to the SCU, in violation of the Fourteenth Amendment’s Due Process Clause.9
In September 2013, after the dismissal of two defendants,10 the remaining defendants moved for summary judgment on the due process claim, arguing that Isby had no right to be free from segregated confinement and that the reviews of his confinement—even in the absence of any in-person hearing—satisfied minimum constitutional guarantees. Defendants also argued that they were entitled to qualified immunity in light of Isby’s failure to prove that their conduct violated clearly established law. The district court granted defendants’ motion as to the due process claim, concluding that all that was constitutionally required in cases like Isby’s *518 were “informal, non-adversarial ... periodic review[s]” at a frequency “committed to the discretion of prison officials” and sufficient to ensure that segregation does not become a “pretext for indefinite confinement.” The court found that although the parties disputed whether Isby had requested any formal ninety-day reviews since 2011, summary judgment was nonetheless appropriate because it was undisputed that Isby had received ongoing thirty-day reviews of his placement, and Isby had not cited to any authority requiring those reviews to be anything more than “informal and non-adversarial.”
In July 2015, the district court held a two-day bench trial on Isby’s Eighth Amendment claim.11 Two months later, the district court entered judgment in defendants’ favor. The district court found that the food, clothing, lighting, laundry, and opportunities for exercise, showers, and time outside provided to Isby in the SCU passed constitutional muster. The court noted that Isby’s weight over the past five years had not fluctuated greatly, nor was there evidence of any severe health problem; the district court also explained that any Eighth Amendment concern implicated by twenty-four hour lighting in the SCU was negated by the fact that Isby can cover his eyes with clothes or towels. The court credited Isby’s testimony that he feels “dehumanized” by his conditions of confinement

but found it significant that Isby has not taken “advantage of any of the opportunities to speak with mental health practitioners, engage in counseling, or otherwise discuss or attempt to diffuse these difficult circumstances.”
The district court noted that although it was “greatly disturbed” by the length of time Isby has spent in administrative segregation, his continued placement is “a result of his own refusal to cooperate in any way with prison officials in efforts to transition him into the general housing population.” The court recognized that Isby “cannot be punished forever for killing a canine and attacking prison officers in 1990,” but nonetheless determined that the prison’s insistence that Isby participate in a prison-mandated transition program was “not unreasonable.” Because “no case under similar circumstances where duration alone, coupled with a prisoner’s refusal to participate in correctional programming, supported a finding of a constitutional violation,” the district court found no violation of Isby’s Eighth Amendment rights.
On appeal, Isby again sought and was granted leave to proceed in forma pauperis. On February 3, 2017, after briefing was completed and only five days before oral argument, another panel of this Court dismissed a separate appeal by Isby in a different case, in which Isby had contended that prison officials burdened his religious exercise by failing to serve him kosher food. See Isby–Israel v. Lemmon, 674 Fed.Appx. 569, 2017 WL 465670 (7th Cir. Feb. 3, 2017). The panel in Isby–Israel observed that Isby “knew [from the dismissal of one of his earlier actions] that he had already accumulated three ‘strikes’ for filing frivolous suits or appeals,” and that he thus had to pay the full filing fee upfront. See id. at 569, 2017 WL 465670, at *1. The Isby–Israel panel concluded that Isby’s withholding of his three-strikes status was deceptive and dismissed that appeal, ordering him to pay all fees in this Court and in the district court and directing *519 the clerks of federal courts in this Circuit to return as unfiled any papers submitted by him or on his behalf until full payment had been made. Id. at 570, 2017 WL 465670, at *2.
Three days later, defendants-appellees moved to dismiss this appeal, contending that “[t]he facts and circumstances in this appeal are nearly identical [to those of Isby–Israel]”; noting several other occasions on which Isby had been told by federal judges that he had “struck out”; and characterizing Isby as having deceived the district court. We took their motion with the case for resolution following oral argument.

Isby v. Brown, 856 F.3d 508 (2017)
II. Discussion
A. Motion to Dismiss the Appeal We first consider whether to dismiss this appeal based on Isby’s failure to alert the court to his three strikes and to pay the requisite filing fees. Under the PLRA, prisoners who have accrued three “strikes” from filing actions or appeals dismissed as frivolous are barred from bringing another action in federal court without prepayment of fees. See 28 U.S.C. § 1915(g). The law of our Circuit requires such litigants to disclose to the court the fact that they have “struck out” and to pay all fees upfront, or risk dismissal of their case as a sanction for misconduct. See, e.g., Gay v. Chandra, 682 F.3d 590, 595–96 (7th Cir. 2012); Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011); Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008).
Isby does not dispute that he was aware of his three strikes when he initially brought this action in district court and when he appealed. Nor could he credibly do so, given the many other cases he has brought that were dismissed explicitly on the basis of his litigation history. See, e.g., Isby v. Bennet, No. 2:16-cv-00351-LJM-MJD, 2016 WL 5851603 (S.D. Ind. Oct. 6, 2016) (denying motion to alter or amend judgment dismissing Isby’s case sua sponte when he sought leave to proceed in forma pauperis without acknowledging his three strikes); Israel v. Brown, No. 14–2168 (7th Cir. Aug. 15, 2014) (order denying motion for leave to proceed on appeal in forma pauperis because “Isby–Israel has accumulated three strikes”); Israel v. Donahue, No. 3:06-cv-0809 WL, 2006 WL 3833390 (N.D. Ind. Dec. 13, 2006) (noting that Isby had accumulated nine strikes and, pursuant to § 1915(g), could not proceed in forma pauperis); Israel v. Miller, No. 3:05-CV-300 RM, 2005 WL 1310535 (N.D. Ind. May 31, 2005) (same); cf. Israel v. Brown, ––– U.S. ––––, 135 S.Ct. 2864, 192 L.Ed.2d 892 (2015) (“As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee ... is paid....”). He likewise does not dispute that he failed to alert the district court of his three strikes. The issue came to light, mere days before oral argument, only when another panel of this Court dismissed Isby’s appeal in a

different case, see Isby–Israel, 674 Fed.Appx. 569, 2017 WL 465670, and defendants-appellees in this case followed up with their motion to dismiss.
Defendants-appellees argue that we ought to dismiss Isby’s appeal because he concealed his restricted status from the district court when he sought pauper status below and on appeal. See Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999) (“An effort to bamboozle the court by seeking permission to proceed in forma pauperis after a federal judge has held that § 1915(g) applies to a particular litigant will lead to immediate termination of the suit.”). While there is an exception to § 1915(g) for prisoners who are “under imminent danger of serious physical injury,” *520 28 U.S.C. § 1915(g), Isby conceded in his response to defendants-appellees’ motion to dismiss and at oral argument that he had not pled any such danger. Instead, Isby requests that we exercise our discretion under Federal Rule of Appellate Procedure 3(a)(2) and examine the merits of his claims, given the serious constitutional questions at issue and the late stage at which defendants-appellees raised their § 1915(g) argument.
We note that defendants-appellees do not argue that § 1915(g) imposes a jurisdictional bar to our hearing Isby’s appeal; they simply observe that we may sua sponte raise § 1915(g) as a basis for dismissal. By its terms, § 1915(g) does not preclude a prisoner from bringing suit in federal court entirely; rather, the prisoner may either prepay in full all filing fees or make a showing of imminent danger of serious physical injury in order to proceed with a federal suit. See, e.g., Abdul–Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (“It is important to note that § 1915(g) does not block a prisoner’s access to the federal courts. It only denies the prisoner the privilege of filing before he has acquired the necessary filing fee.”). We have never referred to the three-strikes provision as a jurisdictional bar, instead treating it as one of the many procedural constraints imposed by the PLRA. See United States v. Antonelli, 371 F.3d 360, 361 (7th Cir. 2004) (referring to three-strikes provision as one of several procedural constraints under the PLRA); cf. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (explaining that the PLRA “exhaustion requirement is not jurisdictional”) (citation omitted). To avoid any ambiguity, we now explicitly join our sister circuits in holding that the requirements of the PLRA’s three-strikes provision are procedural, and not jurisdictional, in nature. See Lisenby v. Lear, 674 F.3d 259, 263 (4th Cir. 2012); Lloyd v. Benton, 686 F.3d 1225, 1227–28 (11th Cir. 2012); Dubuc v. Johnson, 314 F.3d 1205, 1210 (10th Cir. 2003) (“[section] 1915(g)’s provisions are not jurisdictional in

Isby v. Brown, 856 F.3d 508 (2017)
nature but contain a condition precedent which prevents a review of the merits of a three-strikes prisoner-plaintiff’s claims, except under extraordinary circumstances, until the prisoner has prepaid the applicable fees”).
As Isby’s three strikes do not bar us from hearing his appeal, we may consider whether to exercise our discretion to reach the merits of Isby’s case. See Fed. R. App. P. 3(a)(2) (“An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.”); cf. Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (“Because the rule [requiring immigration petitioners to exhaust all administrative remedies before seeking judicial review] is non-jurisdictional, it is subject to waiver, forfeiture, and other discretionary considerations.”). Isby points us to Garcia v. Silbert, in which the Tenth Circuit elected to reach the merits of a plaintiff-prisoner’s case, notwithstanding the fact that § 1915(g) applied and he had not alleged imminent harm, so long as the plaintiff paid in full the filing fees owed to the court. See 141 F.3d 1415, 1417 n.1 (10th Cir. 1998); see also Smith v. Veterans Admin., 636 F.3d 1306, 1309–10 (10th Cir. 2011) (“we have long recognized that we retain discretion to ignore the three-strikes rule and reach the merits of an appeal”) (citation omitted). Isby encourages us to adopt the same approach in the case at hand, and his appointed counsel has offered to pay all of the fees due in this action, citing to the Illinois Rules of Professional Responsibility. See Ill. R. Prof. Responsibility 1.8(e)(2) (allowing lawyers *521 to pay court costs and litigation expenses on behalf of an indigent client); see also Ind. R. Prof. Conduct 1.8(e)(2) (same). Defendants-appellees distinguish Garcia, however, emphasizing that the prisoner in that case had never been told by a federal judge that he had struck out, nor had the Tenth Circuit held that prisoners to whom § 1915(g) applies have a duty to alert the court to their three-strikes status. Defendants-appellees cite to Sloan, in which we declined to provide the prisoner who had struck out an opportunity to pay docketing and filing fees because he had “committed a fraud on the federal judiciary.” 181 F.3d at 859; see also id. (“A litigant who follows frivolous litigation with fraud has no claim to a tender reception.”).
Isby’s deception by omission is certainly not lost on us, and we agree with defendants-appellees that Isby’s counsel’s payment of all fees owed to this Court and the district court does not remedy his fraud. However, we have recognized the possibility of a lawyer paying for a prisoner’s filing fee as a viable option under §

1915(g)—albeit in the context of borrowing the fee from one’s attorney with the promise of reimbursement under 42 U.S.C. § 1988. See Lewis v. Sullivan, 279 F.3d 526, 530 (7th Cir. 2002). And we agree with Isby that the length of his placement in administrative segregation implicates serious constitutional concerns. Given the foregoing, and the fact that defendants-appellees raised the § 1915(g) issue only two days before oral argument, we deny the motion to dismiss, exercise our discretion to consider the merits of Isby’s claims, and will accept Isby’s counsel’s payment of his fees. That said, we caution future litigants to whom § 1915(g) applies that our course of action in this case is the exception, not the norm, and our holdings in Sloan, Ammons, and so forth remain intact. Restricted filers must still alert the court to their three-strikes status or risk dismissal and termination of their suits “not only for lack of payment but also as a sanction for misconduct.” Ammons, 547 F.3d at 725 (citation omitted).
B. Eighth Amendment Claim We now turn to Isby’s appeal from the district court’s verdict on his Eighth Amendment claim. We review the court’s legal conclusions de novo and its factual findings for clear error, see, e.g., Ernst v. City of Chi., 837 F.3d 788, 795–96 (7th Cir. 2016) (citation omitted), and certain mixed questions of law and fact concerning constitutional issues may be reviewed de novo, see Dean Foods Co. v. Brancel, 187 F.3d 609, 616–17 (7th Cir. 1999) (citation omitted).
In cases involving the conditions of confinement in a prison, two elements are required to establish a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment: first, an objective showing that the conditions are sufficiently serious—i.e., that they deny the inmate “the minimal civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), creating an excessive risk to the inmate’s health and safety—and second, a subjective showing of a defendant’s culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). We have held that “prolonged confinement in administrative segregation may constitute a violation of the Eighth Amendment ... depending on the duration and nature of the segregation and whether there were feasible alternatives to that confinement.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012) (citing Walker v. Shansky,

Isby v. Brown, 856 F.3d 508 (2017)
28 F.3d 666, 673 (7th Cir. 1994)); see also Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
*522 We agree with the district court that Isby’s Eighth Amendment claim fails on the objective element. Isby raises a number of complaints about the SCU relating to the lighting, food, temperatures, sleeping arrangements, the restricted time for showers and exercise, and so forth. He claims that the district court erred by analyzing each of these conditions in isolation, rather than in totality. However, the court’s order made clear: “Even having considered the total effect of Mr. Isby[ ]’s circumstances, ... they do not rise to the level of extreme deprivation of basic human needs required to satisfy Eighth Amendment standards.” Given our extensive case law rejecting Eighth Amendment claims based on similar conditions of confinement, we cannot say that the district court’s conclusion on this matter constituted error. See, e.g., Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988) (observing that at least five hours per week of exercise outside cell may be necessary to avoid constitutional issues); Vasquez v. Frank, 290 Fed.Appx. 927, 929 (7th Cir. 2008) (“24–hour lighting involving a single, 9–watt fluorescent bulb does not objectively constitute an extreme deprivation”) (citation and internal quotation marks omitted);12 Williams v. Berge, 102 Fed.Appx. 506, 507 (7th Cir. 2004) (“Prisoners have a right to adequate food, but not to food that is tasty or even appetizing.”) (citing, inter alia, Lunsford v. Bennett, 17 F.3d 1574, 1578 (7th Cir. 1994)); Bono v. Saxbe, 620 F.2d 609, 613–14 (7th Cir. 1980) (“[T]he segregated area was not overcrowded or unsanitary. Inmates had some reading materials and an opportunity to exercise. ‘Seconds’ at meals were not available and food was occasionally cold, but it was the same food as that served to the general prison population.... Inactivity, lack of companionship and a low level of intellectual stimulation do not constitute cruel and unusual punishment even if they continue for an indefinite period of time....”); Meriwether, 821 F.2d at 415 (“[C]onditions are not unconstitutional simply because they are harsh and restrictive; such conditions are part of the penalty that criminal offenders pay for their offenses against society.... [T]he Constitution does not mandate that prisons be comfortable....”) (internal citation and quotation marks omitted); see also Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996) (no violation for weekly outdoor recreation in prison yard totaling three hours); cf. Hardaway v. Meyerhoff, 734 F.3d 740, 744–45 (7th Cir. 2013) (no atypical and significant hardship violating the Fourteenth Amendment’s Due Process Clause where access to showers was only weekly).

Moreover, although Isby points out that “[s]ome conditions of confinement may establish an Eighth Amendment violation in combination when each would not do so alone,” this occurs “only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (providing example of low cell temperature at night combined with failure to issue blankets) (citations and internal quotation marks omitted). While “the length of confinement cannot be ignored in deciding *523 whether the confinement meets constitutional standards,” Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), we agree with the district court that there is no evidence of serious physical, mental, or psychological harm to Isby caused by the conditions of the SCU or the duration of Isby’s segregation.13 It’s true that Isby testified to feeling angry and dehumanized in isolation, but he generally stated that he was “alright” and declined opportunities to speak with mental-health practitioners, engage in counseling, or otherwise discuss or attempt to alleviate these circumstances. See Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir. 2001) (“It is telling that no credible evidence was presented of any physical or psychological harm to the plaintiff as a result of his protracted confinement in the segregation unit....”). Without some egregious deprivation, see, e.g., Walker, 28 F.3d at 672–73 (possible Eighth Amendment violation stemming from prolonged segregation while being denied water for periods of up to one week, given inadequate time to exercise, and subjected to physical abuse), Isby’s complaints about the conditions of his confinement fall short.
Moreover, “[o]bviously influencing whether prolonged segregation constitutes cruel and unusual punishment is the existence of feasible alternatives.” Meriwether, 821 F.2d at 417. As the district court noted, “[t]his [case] presents a somewhat unique circumstance where feasible alternatives—the New Castle transition program, the ACT program—do exist, but they are alternatives that reasonably require Mr. Isby[ ] to cooperate, and he has steadfastly refused to do so.” Isby takes issue with what he characterizes as the district court’s overreliance on the existence of these IDOC programs in denying his Eighth Amendment claim. He notes that the district court cited nothing in support of its assertion that an Eighth Amendment violation may be nullified because the inmate could take steps to reduce the harms being inflicted. However, numerous cases support this very proposition. See, e.g., Freeman v. Berge, 441 F.3d 543, 547 (7th Cir. 2006) (no Eighth Amendment violation where “to an overwhelming degree Freeman’s food

Isby v. Brown, 856 F.3d 508 (2017)
deprivation was self-inflicted [because he refused to wear pants while eating], ... and the record contains no evidence that he experienced real suffering ... or any lasting detrimental health consequences”); Rodriguez v. Briley, 403 F.3d 952, 952–53 (7th Cir. 2005) (“deliberate noncompliance with a valid rule does not convert the consequences that flow automatically from that noncompliance into punishment.... As soon as Rodriguez puts his belongings in the storage box, he can leave his cell and go to the cafeteria.... [B]y failing to comply with a reasonable condition ..., and as a result missing out on meals, Rodriguez punished himself.”); Sostre v. McGinnis, 442 F.2d 178, 187, 193–94 (2d Cir. 1971) (no Eighth Amendment violation where officials testified that prisoner could have returned to the general population “either by successful participation in group therapy or by agreeing to live by the rules of the prison”), overruling on other grounds recognized by, e.g., Davidson v. Scully, 114 F.3d 12 (2d Cir. 1997).14
*524 While, as a personal matter, we (like the district court) find the length of Isby’s confinement greatly disturbing, see, e.g., Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 2208–10, 192 L.Ed.2d 323 (Kennedy, J., concurring) (discussing “[t]he human toll wrought by extended terms of isolation”), reh’g denied, ––– U.S. ––––, 136 S.Ct. 14, 192 L.Ed.2d 983 (2015), we agree that under the law as it currently stands, Isby has not made out an Eighth Amendment violation.
C. Fourteenth Amendment Claim We review the district court’s grant of summary judgment on Isby’s due process claim de novo, construing all facts and drawing all reasonable inferences in Isby’s favor. See, e.g., Collins v. Al–Shami, 851 F.3d 727, 730–31 (7th Cir. 2017) (citation omitted). Summary judgment is appropriate 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(a).
The Due Process Clause of the Fourteenth Amendment applies only to deprivations of life, liberty, and property. “Otherwise states are free to act summarily.” Marion v. Radtke, 641 F.3d 874, 875 (7th Cir. 2011) (per curiam). “We undertake a two-part analysis in procedural due-process cases: first, we determine whether the plaintiff was deprived of a protected interest; if so, we determine what process was due under the circumstances.” Hess v. Bd. of Trs. of S. Ill. Univ., 839

F.3d 668, 673 (7th Cir. 2016) (citations omitted). Prisoners do not have a constitutional right to remain in the general population, see, e.g., Sandin v. Conner, 515 U.S. 472, 480, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (“transfer to less amenable quarters for nonpunitive reasons [is] ‘ordinarily contemplated by a prison sentence’ ” (quoting Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983))); but “both the duration and the conditions of the segregation must be considered” in determining whether due process is implicated, Marion v. Columbia Corr. Inst., 559 F.3d 693, 698 (7th Cir. 2009) (citation omitted).
The district court concluded that, “[g]iven the length of time Isby[ ] has been confined in administrative segregation, ... and accepting [his] undisputed sworn statements concerning the conditions of his confinement as true for purposes of the summary judgment motion, ... a due process liberty is at stake.” Defendants-appellees sensibly do not contest the conclusion that the extraordinary length of Isby’s segregation in the SCU implicates his due process rights. See, e.g., Harris v. Caruso, 465 Fed.Appx. 481, 484 (6th Cir. 2012) (“Harris has a cognizable liberty interest due to the atypical [eight-year] duration of his administrative segregation”). They claim, however, that the reviews that Isby receives every thirty days are sufficient for due process.
The Supreme Court held in Hewitt that the Due Process Clause mandates that prison officials periodically review whether an inmate placed in administrative segregation continues to pose a threat. 459 U.S. at 477 n.9, 103 S.Ct. 864, abrogated in part on other grounds by Sandin, 515 U.S. 472, 115 S.Ct. 2293. The Court *525 recognized that “lawfully incarcerated persons retain only a narrow range of protected liberty interests,” and that “broad discretionary authority is necessary because the administration of a prison is at best an extraordinarily difficult undertaking.” Id. at 467, 103 S.Ct. 864 (citation and internal quotation marks omitted). The Court then concluded that since “a prison’s internal security is ... a matter normally left to the discretion of prison administrators,” id. at 474, 103 S.Ct. 864 (citation omitted), elaborate procedural safeguards like an adversary proceeding were unnecessary, id. at 474–75, 103 S.Ct. 864. Thus, although “administrative segregation may not be used as a pretext for indefinite confinement of an inmate,” the periodic review of the confinement of such inmates required to meet due process “will not necessarily require that prison officials permit the submission of any additional evidence or statements.” Id. at 477 n.9, 103 S.Ct. 864. Rather:

Isby v. Brown, 856 F.3d 508 (2017)
The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner—which will have been ascertained when determining [whether] to confine the inmate to administrative segregation—and on the officials’ general knowledge of prison conditions and tensions, which are singularly unsuited for “proof” in any highly structured manner.... [T]he ongoing task of operating the institution will require the prison officials to consider a wide range of administrative considerations.
Id. As the district court here rightly explained, we and other circuits have interpreted Hewitt as entitling inmates to an “informal and nonadversary” periodic review (the frequency of which is committed to the discretion of the prison officials) that keeps administrative segregation from becoming a pretext for indefinite confinement. Westefer v. Neal, 682 F.3d 679, 684–86 (7th Cir. 2012) (dealing with transfers to supermax prison, where inmates were held in either disciplinary or administrative segregation) (citations omitted); see also Smith v. Shettle, 946 F.2d 1250, 1254 (7th Cir. 1991); Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993) (“inmates in segregation are entitled only to minimal procedural process, so long as that process is not pretextual”).
Isby takes issue with the perfunctory nature of his thirty-day reviews, emphasizing that, despite the amount of time that has passed since the 1990 incident,15 the duration of his confinement in the SCU, and his long stretches without disciplinary charges, he receives the same two-line decision at every review. To evaluate Wabash Valley’s procedures in light of Hewitt, we consider the three Mathews v. Eldridge factors: (1) the private interest (that is, Isby’s interest) affected by a governmental decision, (2) the governmental interests at stake, and (3) “the risk of an erroneous deprivation of [the private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
With respect to the first factor, Isby’s private interest is considerably lessened because of his status as an inmate. See, e.g., Hewitt, 459 U.S. at 473, 103 S.Ct. 864 *526

(“[The prisoner] was merely transferred from one extremely restricted environment to an even more confined situation”). However, whereas the inmate in Hewitt spent less than two months in segregation awaiting a hearing, Isby has spent over ten years there, and counting. The extended, indefinite length of his placement in the SCU tips the scale in his favor on this prong of the analysis. See Proctor v. LeClaire, 846 F.3d 597, 610 (2d Cir. 2017) (“Proctor’s interest in avoiding an indefinite Ad Seg term is surely substantial, more so than [the inmate in Hewitt’s] interest in avoiding a temporary Ad Seg term awaiting a hearing.”); Mims v. Shapp, 744 F.2d 946, 951–52 (3d Cir. 1984) (concluding that inmate facing “potentially limitless” term in administrative segregation has “a more significant liberty interest for due process analysis than that attributed to the prisoner in Hewitt”).
Next, we consider the government’s interests, which are substantial. Maintaining institutional security and safety are crucial considerations in the management of a prison, and, to the extent that an inmate continues to pose a threat to himself or others, ongoing segregation may well be justified. See, e.g., Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry.”). Obviously, however, the validity of the government interest continues only so long as the inmate continues to pose a safety or security risk. Mims, 744 F.2d at 953; see also id. (“the governmental interest involved in a good faith decision to subject a prisoner to administrative segregation may fluctuate with the passage of time and change of circumstances”). It is for this very reason that the Hewitt Court determined that periodic review of administrative segregation decisions is necessary. See id. at 953–54; see also Smith, 946 F.2d at 1254–55 (“[inmate’s period of administrative segregation, which was not fixed in advance,] is an indefinite term, keyed to changing conditions, so there has to be some mechanism for determining whether change has occurred”).16 And again, whereas the inmate in Hewitt was confined to administrative segregation pending the completion of investigations into his role in a prison riot and a hearing on charges against him, the record here indicates that Isby has been held indefinitely following the 1990 incident and other past behavioral issues.17 With no potential end date on Isby’s segregation, we confront the third of the Mathews factors and note that the boilerplate *527 output of each review seems all the more concerning.
Defendants-appellees claim that “[t]here is no mystery as

Isby v. Brown, 856 F.3d 508 (2017)
to why Isby remains in the SCU,” and the undisputed-facts portion of the district court’s summary judgment order states that Isby has been kept in segregation because of his extensive conduct-report history, past behavior, violent tendencies, inability to cooperate with Wabash Valley staff, and other factors. However, the first two items in this list are limited to occurrences in the past, and it is unclear whether the other three items occurred in the distant or recent past as opposed to currently affecting Isby’s readiness to return to the general prison population. Meanwhile, Lieutenant Nicholson highlighted the 1990 incident as the main reason for Isby’s continued placement in segregation. If it is in fact the case, as defendants-appellees suggest, that Isby is still being held in administrative segregation because of his ongoing refusal to cooperate with staff and to participate in any of the self-help programs, then it seems easy enough to include that explanation in the output of his thirty-day reviews. See Toevs v. Reid, 685 F.3d 903, 913–14 (10th Cir. 2012) (“if the relevant circumstances truly have not changed, that can easily be stated, rather than just relying on a meaningless, repetitive, and rote response”) (citation omitted). Even one or two edits or additions along these lines could assuage our concerns and provide helpful notice to Isby as to the reasons for his placement and how he could get out. While defendants-appellees claim that Isby is “well aware that he has an avenue for release” through the self-help programs, it is uncertain that participation in the IDOC programs would necessarily result in transfer or release from the SCU, and the parties dispute the extent to which such information was communicated to Isby.18
Defendants-appellees emphasize that the law does not require that an inmate receive a statement of reasons for their retention in administrative segregation. See Westefer, 682 F.3d at 685–86. While such a statement of reasons may not be constitutionally required, however, under Hewitt, the periodic review must still be meaningful and non-pretextual. Westefer, 682 F.3d at 686 (citing Hewitt, 459 U.S. at 477 n.9, 103 S.Ct. 864); see also Toevs, 685 F.3d at 912 (“The [periodic] review need not be extensive, ... [b]ut the review must be meaningful; it cannot be a sham or a pretext.”) (citations omitted); Mims, 744 F.2d at 954 (warning that periodic reviews must “not become simply a sham”). The Third Circuit has held that “a meaningful review ... is one that evaluates the prisoner’s current circumstances and future prospects, and, considering the reason(s) for his confinement to the program, determines whether that placement remains warranted.” Toevs, 685 F.3d at 913 (internal quotation marks omitted).19 *528 On the record at summary judgment, there is a genuine dispute of fact as to whether

the thirty-day reviews take into account any updated circumstances in evaluating the need for continued confinement, given the length of Isby’s segregation, his long stretches of time without any disciplinary issues, and the rote repetition of the same two boilerplate sentences following each review. And while submission of new evidence or a full hearing may not be necessary to meet the requirements of due process under Hewitt, an actual review—i.e., one open to the possibility of a different outcome—certainly is. See, e.g., Proctor, 846 F.3d at 611 (“It is inherent in Hewitt’s use of the term ‘periodic’ that ongoing Ad Seg reviews may not be frozen in time, forever rehashing information addressed at the inmate’s initial Ad Seg determination.... prison officials must look to the inmate’s present and future behavior and consider new events to some degree to ensure that prison officials do not use past events alone to justify indefinite confinement.”).
Several other circuits have also criticized review procedures like those we have here. See, e.g., Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir. 2015) (“The ICC has merely rubber-stamped Appellant’s incarceration in [solitary confinement] (figuratively and sometimes literally), listing in rote repetition the same justification every 30 days.... Indeed, the ICC’s ongoing classification of Appellant is especially wanting for explanation in light of his nearly perfect disciplinary record while in security detention.”) (citations and internal quotations omitted); Selby v. Caruso, 734 F.3d 554, 559–60 (6th Cir. 2013) (holding that factual issue existed as to whether periodic administrative segregation reviews were meaningful and supported by “some evidence”); Toevs, 685 F.3d at 914–15 (concluding that periodic reviews that were not “meaningful” violated prisoner’s due process rights); Kelly v. Brewer, 525 F.2d 394, 399–402 (8th Cir. 1975) (remanding for further proceedings and directing warden to evaluate prisoners’ placements based on “valid” present and future justifications rather than punishing an inmate for past conduct). Most recently, the Second Circuit held in Proctor that an inmate confined in the SHU for twenty-two years had raised triable issues of fact as to his due-process claim. Proctor, 846 F.3d at 612. Like Isby, Proctor’s time in prison, was also “marked by violence and dangerous defiance of the law,” which led to Proctor being placed in disciplinary segregation in the SHU. Id. at 602. Despite his behavior improving later on,20 he was retained in administrative segregation in the SHU.21 New York provided SHU inmates with periodic reviews every sixty days until *529 they were returned to the general population. After explaining that meaningful periodic reviews must include ongoing evaluation of whether an inmate’s continued segregation is justified, the

Isby v. Brown, 856 F.3d 508 (2017)
Second Circuit noted that testimony from prison officials indicated that, based on Proctor’s past conduct, they had no intention of releasing him. Id. at 611–12. The court explained that it was insufficient for officials merely to go through the motions of conducting a review when they had developed a pre-review conclusion that the inmate would remain in solitary confinement no matter what the evidence showed. See id. at 611 (“The state may not use Ad Seg as a charade in the name of prison security to mask indefinite punishment for past transgressions.”).
Given the long stretches of time during which Isby had no serious disciplinary problems, as well as the conflicting evidence as to the reasons for his ongoing segregation, Isby has raised triable issues of material fact regarding whether his reviews were meaningful or pretextual. See id. at 610 (“Review with a pre-ordained outcome is tantamount to no review at all.”). Here, the repeated issuance of the same uninformative language (without any updates or explanation of why continued placement is necessary) coupled with the length of Isby’s confinement, could cause a reasonable trier of fact to conclude that Isby has been deprived of his liberty interest without due process. Moreover, our concerns with the thirty-day review process bring us to the ninety-day reviews, and the parties and the district court agree there is a disputed issue of material fact in Isby’s case with respect to these more formal reviews. Further testimony and evidence at trial could clarify the reasons for Isby’s ongoing segregation and convince a trier of fact that his reviews were not pretextual. However, his due process claim ought to have survived summary judgment.
D. Qualified Immunity Because the district court found no violation under the Fourteenth Amendment, it did not have to reach the question of qualified immunity. We now consider whether summary judgment on Isby’s due process claim was nonetheless warranted on that ground. See United States v. Flores–Sandoval, 94 F.3d 346, 349 (7th Cir. 1996) (explaining that we are free to affirm “on any grounds found in the record, regardless of the rationale employed by the district court”) (citation omitted).
In considering whether qualified immunity applies, we must inquire: “(1) whether the facts, taken in the light most favorable to the plaintiff, show that the defendant violated a constitutional right; and (2) whether that constitutional right was clearly established at the time of

the alleged violation.” Hernandez v. Cook Cty. Sheriff’s Office, 634 F.3d 906, 914 (7th Cir. 2011) (citation omitted). “To be clearly established at the time of the challenged conduct, the right’s contours must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right, and existing precedent must have placed the statutory or constitutional question beyond debate.” Gustafson v. Adkins, 803 F.3d 883, 891 (7th Cir. 2015) (citation omitted).
It is well established that whenever process is constitutionally due, no matter the context, it must be granted in a meaningful manner. Cf. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). That said, we must also be cautious about defining the due process violation at issue here “at the appropriate level of specificity.” Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (citation omitted). There is no Seventh Circuit or Supreme *530 Court case establishing exactly that periodic reviews of administrative segregation like those at issue here violate due process. “However, a case holding that the exact action in question is unlawful is not necessary.” Alicea v. Thomas, 815 F.3d 283, 291 (7th Cir.2016) (citation omitted). After all, prison officials have been on notice since Hewitt that periodic reviews of administrative segregation are constitutionally required, and it is self-evident that they cannot be a sham.
Although some appellate courts that have considered this issue have concluded that qualified immunity applied, see, e.g., Toevs, 685 F.3d at 916 (“we cannot conclude that the state of the law from 2005 to 2009 gave defendants fair warning that the [Quality of Life Level Program] review process [for prisoners in administrative segregation] was not meaningful, or that the lack of reviews at QLLP Levels 4 through 6 was a due-process violation”), in the case at hand, the various factual disputes discussed above preclude summary judgment on the basis of qualified immunity. See Selby, 734 F.3d at 560 (“When no facts are in dispute, whether an official receives qualified immunity is a question of law. But in this case, ... facts are in dispute, precluding summary judgment for the defendants.”) (emphasis, citations, and internal quotation marks omitted); Black, 4 F.3d at 450 (“[W]e cannot determine from the record before the trial court whether the facts as to the kind and frequency of review given to Black are as he says they are or as the defendants say they are. Therefore a genuine issue of fact remains as to whether Black received the process required by Hewitt. [S]ummary judgment on the grounds of qualified immunity was not appropriate”). As Isby may be able to convince the trier of fact that defendants-appellees

Isby v. Brown, 856 F.3d 508 (2017)

have been deliberately giving him meaningless “reviews,” without any intention of ever releasing him from the SCU, qualified immunity may not apply.

outstanding fees to this Court and the district court, and we AFFIRM the district court on Isby’s Eighth Amendment claim and REVERSE and REMAND on his Fourteenth Amendment claim.

All Citations

III. Conclusion

856 F.3d 508

For the foregoing reasons, Isby is ordered to pay in full all Footnotes

*

Of the Western District of Wisconsin, sitting by designation.

1

Indiana Department of Corrections (“IDOC”) Policy #01–04–101, “Adult Offender Classification,” allows for an

offender to be placed in department-wide administrative segregation when that offender has a history of battery on

others, presents an extraordinary threat to themselves or others, or presents special safety and security concerns.

Section 11–10–1–7 of the Indiana Code similarly provides that an inmate may be involuntarily segregated from the

general population if the IDOC “first finds that segregation is necessary for the offender’s own physical safety or the

physical safety of others.” Ind. Code § 11–10–1–7(a).

2

According to Isby, defendants-appellees neither gave him a hearing prior to placing him in administrative

segregation in 2006 nor notified him of his placement by prison mail, and he was placed in the SCU absent any

emergency condition, charge, prison disturbance, or investigation. As the district court noted, however, with respect

to any claim arising from Isby’s initial placement in the SCU without notice or a hearing, the two-year statute of

limitations applicable to § 1983 actions arising from an alleged injury in Indiana has expired. See Ind. Code §

34–11–2–4; Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013).

As an aside, from December 29, 2014, to March 29, 2015, Isby was held in disciplinary restrictive-status housing in

the SCU. His placement in this even more restrictive form of segregation presumably stemmed from a December

2014 incident described in further detail below, see infra n.8; and his time in disciplinary restrictive-status housing is

not at issue in this appeal.

3

This means that Isby’s general, non-legal mail is routinely searched and read. Outgoing legal mail is checked to

ensure that it is entitled to treatment as legal mail but is not otherwise read, copied, or otherwise interfered with in

either sending or receipt.

4

The meals served apparently average approximately 2500 calories, or just under ninety percent of the standard.

5

Isby takes issue with the district court’s focus on only his recent weight fluctuations, but as the

defendants-appellees point out in their brief, the court focused on the more recent time period because Isby had

submitted into evidence Aramark menus dating back only to September 2010; and any claim accruing before May

15, 2010, would be barred by the two-year statute of limitations.

6

Section 11–10–1–7 of the Indiana Code provides that the IDOC “shall review an offender [involuntarily segregated

from the general population] at least once every thirty (30) days to determine whether the reason for segregation

still exists.” Ind. Code § 11–10–1–7(a) and (b).

Isby v. Brown, 856 F.3d 508 (2017)

7

See IDOC Policy #02–01–111, VII.A (“It shall not be necessary to hold a formal Classification Committee Hearing in

order to complete this review.”).

8

In December 2014, Correctional Officer Jaymison Bennett went to Isby’s cell to retrieve the phone from Isby when

his twenty minutes of allotted phone time was up. Isby became angry because Officer Bennett did not allow him

time to say goodbye. Isby testified that he then placed the phone on the “cuff-port,” a small opening in the cell door

through which prisoners’ hands can be handcuffed. Bennett testified that Isby threw the phone toward the cuff-port

of his closed cell door. Video evidence showed that Isby swiped his hand toward the officer through the cuff-port.

Bennett then sprayed Isby with pepper spray, and Isby was found guilty of “attempted battery without a weapon.”

There is no allegation that Isby made any physical contact with the officer, either with the phone handset or his

hand.

9

The operative complaint named as defendants Richard Brown (Superintendent at Wabash Valley), Bruce Lemmon

(Commissioner of IDOC), James Wynn (Director of Classification for IDOC), Stanley Knight (Interim Deputy

Commissioner for IDOC), Jack Hendrix (Assistant Superintendent at Wabash Valley), Jerry Snyder (SCU Unit Team

Manager at Wabash Valley), Beverly Gilmore (Casework Manager at Wabash Valley), Julie Snider (Counselor at

Wabash Valley), and Dusty Russell (Custody Supervisor at Wabash Valley).

10 In June 2013, defendants Knight and Lemmon moved to dismiss, arguing that sovereign immunity barred Isby’s action against them and that neither of them was personally involved in the alleged deprivations of Isby’s constitutional rights. Isby did not oppose this motion, and in July 2013, the district court dismissed Knight and Lemmon.

11 After Isby presented his case during the bench trial, defendants Wynn, Beverly, Gilmore, Snider, Hendrix, and Russell moved for judgment as a matter of law in their favor. The district court granted that motion as to Wynn, Snider, and Russell, leaving Brown, Hendrix, Snyder, and Gilmore as the remaining defendants below.

12 Isby cites to Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996), in which the Ninth Circuit held that summary judgment was inappropriate where an inmate alleged that large fluorescent lights kept his cell constantly illuminated and caused sleeping issues and other mental and psychological problems. See id. at 1090–91. Here, however, the district court weighed all available evidence at trial and found that Isby was allowed to cover his eyes with clothes or towels if the light disturbed him. And, as defendants point out, the lights in Keenan involved “large fluorescent lights,” not five-to-nine-watt bulbs.

13 But see Kervin v. Barnes, 787 F.3d 833, 837 (7th Cir. 2015) (“The serious psychological consequences of ... quasi-solitary imprisonment have been documented.”) (collecting sources).

14 It is true that there is no guarantee that participating in the IDOC self-help programs would necessarily lead to Isby’s return to the general population (unlike compliance with the prison rules at issue in Rodriguez or Freeman, or the explicit testimony by prison officials in Sostre), or that program participation is a necessary predicate to being released from administrative segregation. And there was some dispute as to the extent to which Isby was aware of the degree to which an IDOC program was a necessary predicate to his being released from the SCU. Regardless, the district court’s factual assessments of these programs do not strike us as clear error, and, given the lack of evidence of egregious conditions in the SCU or serious suffering on Isby’s part, we affirm the court’s verdict on Isby’s Eighth Amendment claim.

15 Defendants-appellees claim that the trial transcript does not support Isby’s assertion that the 1990 incident is the sole reason for his placement in the SCU. But Lieutenant Nicholson did testify that he never recommended Isby for release from the SCU “[b]ecause he killed a ... dog and stabbed two officers.” Nicholson also testified, however, that

Isby v. Brown, 856 F.3d 508 (2017)
he was not the sole decisionmaker, and Isby himself stated that he was eventually told that he was in the SCU because of his “conduct history” generally.
16 Defendants-appellees argue that Smith held that the thirty-day review process at issue in this case passed constitutional muster. But what we held in Smith was that the prison officials’ uncontroverted affidavits established that the inmates received notice and an opportunity to be heard on the front end as well as sufficiently frequent periodic reviews. See 946 F.2d at 1254. The adequacy or potential pretextual nature of those periodic reviews was thus not at issue in that case.
17 In response to a question from the district court during the bench trial, defendant Jerry Snyder, the Unit Team Manager for the SCU at Wabash Valley, confirmed that he did not recall any conduct by Isby that prompted his move from the general population to the SCU. And even accepting the district court’s findings of fact on this issue and the trial testimony that Isby was “extremely argumentative and disrespectful,” our own case law warns that long stretches of solitary confinement may be too strict of a punishment for mere behavioral problems. See Kervin, 787 F.3d at 837 (reminding prison officials and judges “to be alert for the potentially serious adverse consequences of protracted segregation as punishment for misbehavior in prison, especially ... nonviolent misbehavior” like repeatedly talking back to prison guards).
18 The district court’s bench-trial order on Isby’s Eighth Amendment claim concluded that Isby had “avenues that he could take to lead him to general population” (emphasis added), which “he simply has chosen not to attempt.” But these conclusions do not necessarily bear on Isby’s due process claim (i.e., as to whether the existing process was sufficient).
19 The Third Circuit also elaborated that “[w]here ... the goal of the placement is solely and exclusively to encourage a prisoner to improve his future behavior, the review should provide a statement of reasons, which will often serve as a guide for future behavior (i.e., by giving the prisoner some idea of how he might progress toward a more favorable placement).” Toevs, 685 F.3d at 913; cf. Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (noting that Ohio’s requirement that a decisionmaker provide a “short statement of reasons ... guards against arbitrary decisionmaking while also ... serv[ing] as a guide for future behavior”) (citation omitted). The defendants-appellees argue that even if they did not provide official notice or statements of reasons, Isby was aware that he needed to improve his behavior and participate in the IDOC self-help programs in order to be eligible for transfer. However, Isby argues that there was no guarantee that participation would lead to such a transfer and that others were moved out of the SCU without participation, which raises issues of fact.
20 The Second Circuit noted that, “in the main, Proctor’s behavior [in administrative segregation] has remained positive,” that he “has gone long stretches—including one period of almost four years—without any disciplinary reports,” and that he “received just one disciplinary report between December 2011 and the close of the record in this case.” 846 F.3d at 603.
21 At the hearing held shortly thereafter, the hearing officer found that Proctor posed a threat to the prison based on his criminal history and misbehavior, including his past escape and his bad behavior during his first years in disciplinary segregation. 846 F.3d at 603.

 
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