United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:16-cv-00863-CCC

Johnson v. Wetzel et al Assigned to: Chief Judge Christopher C. Conner Referred to: Magistrate Judge Martin C. Carlson (Settlement) Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/12/2016 Date Terminated: 06/28/2017 Jury Demand: Both Nature of Suit: 555 Prisoner Civil Rights (Prison Conditions) Jurisdiction: Federal Question

Date Filed 05/12/2016 05/12/2016 05/12/2016
05/13/2016
05/13/2016 05/18/2016 05/18/2016

# Docket Text

COMPLAINT against All Defendants ( Filing fee $400, Receipt

1

Number 0314-3756156) filed by Arthur Johnson. (Attachments:

# 1 Civil Cover Sheet)(pjr) (Entered: 05/13/2016)

3 MOTION for Preliminary Injunction filed by Arthur Johnson. (Attachments: # 1 Proposed Order)(pjr) (Entered: 05/13/2016)

4 BRIEF IN SUPPORT re 3 MOTION for Preliminary Injunction filed by Arthur Johnson. (Attachments: # 1 Unpublished Opinion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(pjr) (Entered: 05/13/2016)

2 Summons Issued as to All Defendants and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e-mail and serve them with the complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (pjr) (Entered: 05/13/2016)

SPECIAL ADMISSION FORM SENT to Jules Lobel, Thomas Jones, Peter Laun and Tarah Ackerman. (pjr) (Entered: 05/13/2016)

5 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Tarah E Ackerman on behalf of Arthur Johnson Attorney Peter Laun is seeking special admission. Filing fee $ 50, receipt number 03143761656.. (Ackerman, Tarah) (Entered: 05/18/2016)

6 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Tarah E Ackerman on behalf of Arthur Johnson Attorney Thomas Jones is seeking special admission. Filing fee $ 50, receipt number 0314-3761663.. (Ackerman, Tarah) (Entered: 05/18/2016)

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7 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Tarah E Ackerman on behalf of Arthur Johnson Attorney Tarah Ackerman is seeking special admission. Filing fee $ 50, receipt number 0314-3761666.. (Ackerman, Tarah) (Entered: 05/18/2016)
DOCKET ANNOTATION: Petitioners, Tarah Ackerman, Thomas Jones and Peter Laun, and Associate Counsel bar status verified. (pjr) (Entered: 05/18/2016)
8 PETITION to Appear Pro Hac Vice - Attorney Jules Lobel is seeking special admission. Filing fee $ 50, receipt number 0314-3763983. by Arthur Johnson.(Grote, Bret) Modified on 5/24/2016 (pjr). (Entered: 05/20/2016)
9 ORDER - Letter to Counsel from Court Re: Case Assignment and Procedures. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/23/16. (ki) (Entered: 05/23/2016)
10 SPECIAL ADMISSIONS FORM APPROVED as to Tarah E. Ackerman, Esquire. (Original: SCR Registry)Signed by Chief Judge Christopher C. Conner on 5/23/16. (ki) (Entered: 05/23/2016)
11 SPECIAL ADMISSIONS FORM APPROVED as to Thomas S. Jones, Esquire. (Original: SCR Registry)Signed by Chief Judge Christopher C. Conner on 5/23/16. (ki) (Entered: 05/23/2016)
12 SPECIAL ADMISSIONS FORM APPROVED as to Peter D. Laun, Esquire. (Original: SCR Registry)Signed by Chief Judge Christopher C. Conner on 5/23/16. (ki) (Entered: 05/23/2016)
DOCKET ANNOTATION: Counsel has been advised to refile Doc. 8 using the Middle District form and using the event Document filed. (pjr) (Entered: 05/26/2016)
DOCKET ANNOTATION: Counsel is reminded to refile Doc. 8 using the Middle District form and using the event Document filed. (pjr) (Entered: 06/02/2016)
13 by Arthur Johnson. Special Admission form for Jules Lobel. (Grote, Bret) (Entered: 06/10/2016)
DOCKET ANNOTATION: Petitioner, Jules Lobel, and Associate Counsel bar status verified. (pjr) (Entered: 06/10/2016)
14 SUMMONS Returned Executed by Arthur Johnson. John Wetzel served on 6/9/2016, answer due 6/30/2016. (Ackerman, Tarah) (Entered: 06/10/2016)
15 SUMMONS Returned Executed by Arthur Johnson. Brenda Tritt served on 6/9/2016, answer due 6/30/2016. (Ackerman, Tarah) (Entered: 06/10/2016)

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06/16/2016 06/17/2016
06/17/2016 06/17/2016 06/24/2016 06/27/2016

16 SUMMONS Returned Executed by Arthur Johnson. Shirley MooreSmeal served on 6/9/2016, answer due 6/30/2016. (Ackerman, Tarah) (Entered: 06/10/2016)
17 SUMMONS Returned Executed by Arthur Johnson. Michael Wenerowicz served on 6/9/2016, answer due 6/30/2016. (Ackerman, Tarah) (Entered: 06/10/2016)
18 SUMMONS Returned Executed by Arthur Johnson. James Meintel served on 6/9/2016, answer due 6/30/2016. (Ackerman, Tarah) (Entered: 06/10/2016)
19 SPECIAL ADMISSIONS FORM APPROVED as to Jules Lobel, Esquire.Signed by Chief Judge Christopher C. Conner on 6/13/16. (ki) (Entered: 06/13/2016)
21 ORDER re: Johnson's motion for preliminary injunction 3 directing defts to file br in opp by 7/1/2016 & permitting pltf to file reply br in further supp following svc of defts' opp papers but no later than time of hearing on motion. (See order for complete details.)Signed by Chief Judge Christopher C. Conner on 6/15/16. (ki) (Entered: 06/15/2016)
22 NOTICE of Appearance by M. Abbegael Giunta on behalf of James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel (Giunta, M.) (Entered: 06/16/2016)
23 SCHEDULING ORDER setting Hearing re: pltf's motion for preliminary injunction 3 set for 7/6/2016 @ 09:30 AM in Harrisburg Courtroom 2 before Chief Judge Christopher C. Conner. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/17/16. (ki) (Entered: 06/17/2016)
24 Writ of Habeas Corpus ad Testificandum Issued as to Arthur Johnson #AF-3457 for 7/6/16 & return to SCI Frackville. (ki) (Entered: 06/17/2016)
25 NOTICE of Appearance by Karen Mascio Romano on behalf of James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel (Romano, Karen) (Entered: 06/17/2016)
26 MOTION Telephone Conference by James Meintel, Shirley MooreSmeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Attachments: # 1 Proposed Order Scheduling Telephone Conference)(Giunta, M.) (Entered: 06/24/2016)
27 SCHEDULING ORDER granting defts' motion for telephone conference 26 & setting telephone conference for 6/28/2016 @ 10:30 AM w/ cnsl for defts to place telephone conference call. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/27/16. (ki) (Entered: 06/27/2016)

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29 SCHEDULING ORDER - It is hereby ORDERED that: 1. Prelim inj hrg set for 7/6/16 shall proceed as scheduled but be limited in scope to Johnson's affirmative evidence in supp of his motion 3 for prelim inj.; 2. Cont'd proceedings on Johnson's motion set for 8/11/2016 @ 10:00 AM in Harrisburg - Courtroom 2, during which defts shall present evidence in response to Johnson's motion & Johnson may present rebuttal evidence as appropriate. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/29/16. (ki) (Entered: 06/29/2016)
30 NOTICE of Appearance by Timothy A. Holmes on behalf of Anthony Kovalchik, James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Holmes, Timothy) (Entered: 06/29/2016)
31 NOTICE of Appearance by Timothy A. Holmes on behalf of Anthony Kovalchik, James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Holmes, Timothy) (Entered: 06/29/2016)
32 ANSWER to 1 Complaint by James Meintel, Shirley MooreSmeal, Brenda Tritt, Michael Wenerowicz, John Wetzel.(Romano, Karen) (Entered: 06/30/2016)
33 BRIEF IN OPPOSITION re 3 MOTION for Preliminary Injunction filed by James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel.(Giunta, M.) (Entered: 07/01/2016)
34 REPLY BRIEF re 3 MOTION for Preliminary Injunction filed by Arthur Johnson.(Ackerman, Tarah) (Entered: 07/05/2016)
35 STIPULATION of Facts by James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Giunta, M.) (Entered: 07/05/2016)
37 PLAINTIFF'S PRELIMINARY INJUNCTION HEARING EXHIBIT LIST from Day #1 of PI Hrg held 7/6/16. (Original exhibits retained by pltf's cnsl) (ki) (Entered: 07/06/2016)
38 ORDER: 1. Pltf shall file any mtn to compel together with a brsupp 7/13/16.2. Dfts shall file a brief in response to pltfs anticipated mtn within (10) days of receipt thereof.3. To the extent the parties are able to resolve the discovery dispute amicably in the interim, the parties shall provide notice to the court of said resolution forthwith. Signed by Chief Judge Christopher C. Conner on 7/8/16. (ma) (Entered: 07/08/2016)

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07/25/2016 08/04/2016 08/05/2016 08/05/2016

39 MOTION to Compel by Arthur Johnson. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Ackerman, Tarah) (Entered: 07/13/2016)

40 MEMORANDUM in Support of Motion to Compel 39 by Arthur Johnson. (Attachments: # 1 Unpublished Opinion(s), # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C)(Ackerman, Tarah) Modified on 7/13/2016 to correct doc ID (ki). (Entered: 07/13/2016)

DOCKET ANNOTATION: Counsel is advised to refile Doc. 40 using the event Brief in Support. (pjr) (Entered: 07/13/2016)

41 BRIEF IN SUPPORT re 39 MOTION to Compel filed by Arthur Johnson. (Attachments: # 1 Unpublished Opinion(s), # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C)(Ackerman, Tarah) (Entered: 07/13/2016)

42 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Preliminary Injunction Proceedings held on 7/6/16 before Judge Conner. Court Reporter L. Shuey, Telephone Number 717-215-1270. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, it may be obtained through the Court Reporter or PACER. Redaction Request due 8/4/2016. Redacted Transcript Deadline set for 8/15/2016. Release of Transcript Restriction set for 10/12/2016. (ctrep1, ) (Entered: 07/14/2016)

43 BRIEF IN OPPOSITION re 40 MOTION to Compel Memorandum in Support, 39 MOTION to Compel filed by James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Attachments: # 1 Exhibit(s) A)(Giunta, M.) (Entered: 07/25/2016)

44 Writ of Habeas Corpus ad Testificandum Issued as to Inmate Arthur Johnson for 8/11/16 & return to SCI Frackville. (ki) (Entered: 08/04/2016)

MEMORANDUM (Order to follow as separate docket entry)

45

re: 39 MOTION to Compel Discovery filed by Arthur Johnson. (See

memo for complete details.)Signed by Chief Judge Christopher C.

Conner on 8/5/16. (ki) (Entered: 08/05/2016)

46

ORDER (Memorandum 45 filed previously as separate docket

entry) GRANTING & DEFERRING portions of motion to compel

discovery 39 as set forth in Paragraphs 1, 2, 3 & 4 of order (... see for

specifics) & directing cnsl for defts to produce docs id'd in Paras 1, 2

& 3 above as well as Integrated CAse Summary -Classification &

Inmate Query - Separations for in camera review by ct by no later

than nooonon 8/9/16... together w/ statement by Sec Wetzesl id'ng...

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08/10/2016
08/10/2016 08/11/2016 08/11/2016

nature & source of threat posed by disclosure... as well as prop order or conf agmt to govern any production or disclosure of said docs. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 8/5/16. (ki) (Entered: 08/05/2016)

47 SCHEDULING ORDER granting pltf's request to reschedule start time for 8/11/16 PI hrg & RESCHEDULING said hearing to commence @ 9:00 AM on 8/11/16 (rather than 10:00 a.m. same date). ( See order for complete details.) Signed by Chief Judge Christopher C. Conner on 8/5/16. (ki) (Entered: 08/05/2016)

48 SUPERSEDING Writ of Habeas Corpus ad Testificandum Issued as to Arthur Johnson for 8/11/16 (time RESCHEDULED to 9:00 a.m., same date). (ki) (Entered: 08/05/2016)

ORDER re: Johnson's motion to compel discovery 39 - It is hereby

49

ORDERED that: 1. Motion DENIED w/ re: Boyd & Perez email.; 2.

Subject to req'mt that all cnsl execute prop conf order prepped by

defts & reviewed by undersigned, motion otherwise conditionally

GRANTED.; 3. Upon execution by parties of defts' prop conf agmt &

filing of same w/ ct defts shall forthwith produce to Johnson's cnsl in

unredacted form the following:... (see Paras 3a-3i for specifics).; 4.

Violation of anticipated conf agmt by any party thereto may result in

impositio of appropriate sanctions. (See order for complete details.)

Signed by Chief Judge Christopher C. Conner on 8/10/16. (ki)

(Entered: 08/10/2016)

50 APPROVED & ENTERED AS ORDER (per 8/10/16 order 51 of ct) STIPULATION Regarding Confidentiality by John Wetzel, Brenda Tritt, Michael Wenerowicz, Shirley Moore-Smeal, Anthony Kovalchik, James Meintel, filed by John Wetzel, Brenda Tritt, Michael Wenerowicz, Shirley Moore-Smeal, Anthony Kovalchik, James Meintel. (Attachments: # 1 Proposed Order)(Romano, Karen) Modified on 8/10/2016 (ki). (Entered: 08/10/2016)

51 ORDER - It is hereby ORDERED that the stipulation 50 of the parties is ENTERED as an order of the court this 10th day of August, 2016. (See stip 50 & order for complete details.) Signed by Chief Judge Christopher C. Conner on 8/10/16. (ki) (Entered: 08/10/2016)

52 Confidentiality STIPULATION & ORDER 50 w/ pltf's signature page executed. (See stip/order for complete details.) File 8/11/16. (ki) (Entered: 08/11/2016)

54 COURT REPORTER NOTES OF PROCEEDINGS - filed by Wesley J. Armstrong of preliminary injunction hearing, Day 2, held before Chief Judge Conner on 11 August 2016. In accordance with 28 U.S.C., Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Chief Judge Conner on 11

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August 2016. By: s/ Wesley J. Armstrong, RMR. (Entered: 08/11/2016)
56 PLAINTIFF'S PRELIMINARY INJUNCTION HEARING (Day #2) EXHIBIT LIST from 8/11/16. (Original exhibits returned to pltf's cnsl on 8/11/16)(ki) (Entered: 08/12/2016)
57 DEFENDANTS' PRELIMINARY INJUNCTION HEARING EXHIBIT LIST from 8/11/16 PI Hrg. (Original exhibits returned to defts' cnsl on 8/11/16) (ki) (Entered: 08/12/2016)
58 ACKNOWLEDGEMENT of Receipt of Original Exhibits from Preliminary Injunction Hearing (held 7/6/16 & 8/11/16) RECEIVED from Plaintiff's Counsel on 8/11/16. (ki) (Entered: 08/12/2016)
59 ACKNOWLEDGEMENT of Receipt of Defendants' Original Exhibits from Preliminary Injunction Hearing (held 7/6/16 & 8/11/16) RECEIVED from Defendants' Counsel on 8/11/16. (ki) (Entered: 08/12/2016)
60 MOTION to Unseal Testimony of Siena Smith by Arthur Johnson. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Ackerman, Tarah) (Entered: 08/23/2016)
61 BRIEF IN SUPPORT re 60 MOTION to Unseal Testimony of Siena Smith filed by Arthur Johnson.(Ackerman, Tarah) (Entered: 08/23/2016)
62 ORDER DEFERRING disposition of Johnson's motion 60 to unseal Smith's testimony, directing that all filings referencing or citing to Smith's testimony to be filed under seal pending ct's disp of motion, parties to set forth positions re: motion in prop findings of fact & conc of law by 9/7/16 & noting ct will rule on motion in connect w/ PI motion 3 . (See order for complete details) Signed by Chief Judge Christopher C. Conner on 8/25/16. (ki) (Entered: 08/25/2016)
63 TRANSCRIPT of S. Smith Testimony (ctrep8, ) Modified on
9/20/2016 (ki). Modified on 9/20/2016 to unseal per order 68 of court(ki). (Entered: 08/29/2016)
64 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of preliminary injunction hearing held on 11 August 2016 before Chief Judge Conner. Court Reporter: Wesley J. Armstrong, RMR (telephone number 717-542-5569). Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/19/2016. Redacted Transcript Deadline set for 9/29/2016. Release of Transcript Restriction set for 11/28/2016. (Entered: 08/29/2016)

09/07/2016

65 Plaintiff's Proposed Findings of Fact & Conclusions of Law (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (pjr) Modified on

09/07/2016

9/20/2016 to unseal per order 68 09/07/2016)

of court (ki). (Entered:

66 Defendants' Proposed Findings of Fact & Conclusions of Law. (Attachments: # 1 Proposed Order) (pjr) Modified on 9/20/2016 to

09/20/2016 09/20/2016
09/21/2016

unseal per order 68 of court) (ki). (Entered: 09/07/2016)

MEMORANDUM (Order to follow as separate docket entry)

67

re: 3 MOTION for Preliminary Injunction filed by Arthur Johnson.

(See memo for complete details.)Signed by Chief Judge Christopher

C. Conner on 9/20/16. (ki) (Main Document 67 replaced on

9/21/2016) (ki). (Entered: 09/20/2016)

68

ORDER (Memorandum 67 filed previously as separate docket

entry) - It is hereby ORDERED that: 1. Johnson's motion for PI 3 is

GRANTED.; 2. Subject to development & implementation of

program set forth in Para 3... defts PRELIMINARILY ENJOINED

from maintaining Johnson in solitary confinement in RHU. ; 3. Parties

DIRECTED forthwith to meet & confer to devlop app step-down

program for Johnson's reintegration into general population... (see

Para 3 for specific instructions).; 4. By 9/28/16 parties to submit jt

prop step-down program for ct's review & app or if unable to agree to

submit separate props.; 5. Step-down program.. shall@ minimum...

(see Paras 5a-c for specific instructions).; 6. In event defts determine

that Johnson's reintegration must be delayed for reasons of his own

safety or safety of others.... defts to document in detail reasons for

delay & submit documentation to ct forthwith.; 7. Ct finds relief

granted hereinabove narrowly drawn, exts no further than necessary to

correct harm req'ng relief & is least intrusive means necessary to

correct that harm...; 8. Johnson's motion 60 to unseal testimony of

Siena Smith GRANTED. Clrk of Ct shall UNSEAL transcript 63 of

her testimony & parties' prop findings of fact & conc of

law 65 & 66 forthwith. (See order for complete details.) Signed by

Chief Judge Christopher C. Conner on 9/20/16. (ki) (Entered:

09/20/2016)

69 ORDER -It is hereby ORDERED that the ct's memo 67 is amended @ page 26 to state, in opening sentece of 1st paragraph, as follows: "When he entered Department custody in August 1973, Mr. Johnson was twenty-one years old, and his life expectancy was fortyfour more years." (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 9/21/16. (ki) (Entered: 09/21/2016)

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03/01/2017 04/18/2017 05/16/2017

70 Proposed Pretrial Order Joint Proposed Step-Down Program for Arthur Johnson by Anthony Kovalchik, James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Giunta, M.) (Entered: 09/28/2016)

ORDER - JOINT STEP DOWN PROGRAM FOR ARTHUR

71

JOHNSON 70 approved by the court. (See order for complete

details)Signed by Chief Judge Christopher C. Conner on 9/30/16. (ki)

(Entered: 09/30/2016)

72 SCHEDULING ORDER: Initial Case Management Conference set for 2/14/2017 @ 10:15 AM - placement of the telephone conference call is the responsibility of the plaintiff. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 1/9/17. (ki) (Entered: 01/09/2017)

73 MOTION to Withdraw as Attorney Thomas S. Jones by Arthur Johnson. (Attachments: # 1 Proposed Order)(Ackerman, Tarah) (Entered: 01/26/2017)

74 ORDER granting motion 73 for leave to w/draw & permitting Atty Thomas S. Jones to w/draw his appearance as cnsl for pltf Arthur Johnson. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 1/30/17. (ki) (Entered: 01/30/2017)

75 CASE MANAGEMENT PLAN agreed upon by all parties by James Meintel, Shirley Moore-Smeal, Brenda Tritt, Michael Wenerowicz, John Wetzel. (Romano, Karen) (Entered: 02/09/2017)

77 ORDER REFERRING CASE for Purposes of Settlement Conference Only to Magistrate Judge Martin C. Carlson. (See order for complete details.)Signed by Chief Judge Christopher C. Conner on 2/14/17. (ki) (Entered: 02/14/2017)

78 SCHEDULING ORDER: A Settlement Conference is set for 4/24/2017 at 1:00 PM in Harrisburg - Courtroom 5 before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on March 1, 2017. (kjn) (Entered: 03/01/2017)

79 VACATED -Writ of Habeas Corpus ad Testificandum Issued as to Arthur Johnson, #AF-2457 for April 24, 2017 at 1:00 p.m.. Signed by Magistrate Judge Carlson 3/1/2017. (kjn) Modified on 4/18/2017 (kjn). (Entered: 03/01/2017)

Letter from Plaintiff's Counsel . (Grote, Bret) (Entered: 04/18/2017) 80

82 ORDER - IT IS HEREBY ORDERED THAT the parties shall provide a status report on the progress of these settlement negotiations

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on or before May 26, 2017. Signed by Magistrate Judge Martin C. Carlson on May 16, 2017. (kjn) (Entered: 05/16/2017)

ORDER DISMISSING CASE without costs and without prejudice to

83

the right of either party, upon good cause shown within ninety (90)

days, to reinstate the action if settlement is not consummated. (See

order for complete details.)Signed by Chief Judge Christopher C.

Conner on 6/28/17. (ki) (Entered: 06/28/2017)

84 WITHDRAWAL OF ATTORNEY APPEARANCE - Attorney M. Abbegael Giunta terminated on behalf of Defendants. (Giunta, M.) (Entered: 10/17/2017)

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 Case 1:16-cv-00863-CCC Document 1 Filed 05/12/16 Page 1 of 26

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

ARTHUR JOHNSON,

:

:

Plaintiff,

:

v.

: :

JOHN WETZEL, Secretary of the

:

Pennsylvania Department of Corrections (DOC); SHIRLEY MOORE-SMEAL, Executive Deputy Secretary of the DOC; MICHAEL

:
: :

WENEROWICZ, Regional Deputy

:

Secretary of the DOC; BRENDA TRITT, Superintendent SCI Frackville; JAMES MEINTEL, Deputy

: :

Superintendent SCI Frackville;

:

ANTHONY KOVALCHIK, Deputy Superintendent SCI Frackville,

: :

Defendants.

:

Case No.
ELECTRONICALLY FILED JURY TRIAL DEMANDED

COMPLAINT Introduction 1. The plaintiff, Arthur Johnson, has been held in solitary confinement for nearly 36 years without any rational justification, and without being afforded any meaningful process to address his confinement or to rectify the damage it has inflicted on him. His confinement in small cells for approximately 23 hours a day for more than three decades has harmed his mental and physical health, resulting in permanent damage to him.

NAI-1500814003v2

Case 1:16-cv-00863-CCC Document 1 Filed 05/12/16 Page 2 of 26

2. The extreme, unusual and cruel conditions of his confinement violate 42 U.S.C. § 1983, as well as the Eighth and Fourteenth Amendments to the United States Constitution.
3. Mr. Johnson seeks injunctive, declaratory, and monetary relief to address these violations of his constitutional rights.
Jurisdiction and Venue 4. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 5. This Court is the appropriate venue pursuant to 28 U.S.C. §1391(b)(2), because the events and omissions giving rise to the claims occurred in the Middle District of Pennsylvania.
Parties 6. Plaintiff Arthur Johnson is and was at all times relevant to this action a prisoner in the custody of the Pennsylvania Department of Corrections (DOC). He is currently incarcerated in solitary confinement at the State Correctional Institution (SCI) Frackville. 7. Defendant John Wetzel is the Secretary of the DOC. His employment and mailing address is 1920 Technology Parkway, Mechanicsburg, PA 17050-8507. Defendant Wetzel is sued in his individual and official capacity. 8. Defendant Shirley Moore Smeal is the Executive Deputy Secretary of the DOC. Her employment and mailing address is 1920 Technology Parkway,

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Case 1:16-cv-00863-CCC Document 1 Filed 05/12/16 Page 3 of 26

Mechanicsburg, PA 17050-8507. Defendant Smeal is sued in her individual and official capacity.
9. Defendant Michael Wenerowicz is the Regional Deputy Secretary of the DOC. His employment and mailing address is 1920 Technology Parkway, Mechanicsburg, PA 17050-8507. Defendant Wenerowicz is sued in his individual and official capacity.
10. Defendant Brenda Tritt is the Superintendent of SCI Frackville. Her employment and mailing address is 1111 Altamont Boulevard, Frackville, PA 179312699. She is sued in her individual and official capacity.
11. Defendant James Meintel is the Deputy Superintendent for Facilities Management at SCI Frackville. His employment and mailing address is 1111 Altamont Boulevard, Frackville, PA 17931-2699. He is sued in his individual and official capacity.
12. Defendant Anthony Kovalchik is the Deputy Superintendent for Centralized Services at SCI Frackville. His employment and mailing address is 1111 Altamont Boulevard, Frackville, PA 17931-2699. He is sued in his individual and official capacity.
Statement of Facts Solitary Confinement: History and Conditions 13. Mr. Johnson was initially incarcerated in October 1970 for homicide. He was 18 years old at the time.

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14. At his criminal trial, an expert in psychological testing employed by the Board of Education of Philadelphia testified that Mr. Johnson had scored as a “retarded educable” on IQ tests administered to Mr. Johnson during his childhood and adolescence at ages 8 (score of 70) and 14 (score of 63). Id. at 156. In the language of today, Mr. Johnson had an intellectual disability.
15. On December 22, 1979, Mr. Johnson was removed from the general prison population and placed in solitary confinement at SCI Pittsburgh for allegedly being involved in an escape attempt. A few hours after being placed in solitary confinement, Plaintiff was shipped to SCI Huntingdon. Plaintiff remains in solitary confinement to this day, more than 36 years later. He is currently held at SCI Frackville.
16. Mr. Johnson was held in solitary confinement at SCI Huntingdon from December 22, 1979 until sometime in 1985, when he was transferred back to SCI Pittsburgh.
17. Mr. Johnson was held in solitary confinement at SCI Pittsburgh from 1985 until November 1989.
18. In November 1989, Mr. Johnson was transferred to the custody of the Federal Bureau of Prisons (BOP) due to a temporary lack of space in DOC facilities.
19. In April 1990, Mr. Johnson was transferred back to DOC custody, at SCI Graterford and was immediately placed in solitary confinement. Mr. Johnson remained at SCI Graterford in solitary confinement until 1995.

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20. In 1995, Mr. Johnson was transferred to SCI Greene and again placed in solitary confinement. Between 1995 and 2004, Mr. Johnson was held in solitary confinement at SCI Greene.
21. In May 2004, Mr. Johnson was transferred to SCI Rockview. One month later, in June 2004, he was again transferred to SCI Smithfield, where he was held until January 2005. He remained in solitary confinement at SCI Rockview and SCI Smithfield.
22. In January 2005, Mr. Johnson was transferred to SCI Forest, where he remained in solitary confinement until November 2009, when he was transferred to SCI Huntingdon, where he remained for approximately 53 days, still being held in solitary confinement.
23. In January 2010, Mr. Johnson was transferred to SCI Rockview, where he was held until January 2013. He remained in solitary confinement his entire time at SCI Rockview.
24. In January 2013, Mr. Johnson was transferred to SCI Frackville and continued in solitary confinement. He remains in solitary confinement at SCI Frackville at the present time.
25. All told, as of the date of this Complaint, Mr. Johnson has spent more than 36 years in solitary confinement. This is more than half of Mr. Johnson’s 63year life and virtually the entirety of his time in prison.

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26. During his 36 years in solitary confinement, Mr. Johnson has spent 23 or 24 hours per day alone in his cell, with little or no human interaction or external stimulation of any other sort.
27. Since 1979, Mr. Johnson’s cell has been approximately 7 feet by 12 feet, smaller than many cages used to hold animals at zoos.
28. While he has been in solitary confinement, Mr. Johnson’s cell has been lighted 24-hours per day, with no reprieve during day or night.
29. For the entirety of his 36 years in solitary confinement, Mr. Johnson has been permitted one hour of time outside, five days of the week, in a fenced-in exercise cage that is slightly larger than his cell, and he is allowed this time only if weather conditions are determined by prison staff to be acceptable.
30. During his solitary confinement period, Mr. Johnson has never been permitted to enter the exercise cage with another person.
31. For the past 36 years, Mr. Johnson has not had access to any exercise or recreational equipment.
32. For the past 36 years, Mr. Johnson has been forced to eat all of his meals alone in his cell.
33. For the past 36 years, Mr. Johnson has been prohibited from participating in organizational, vocational, or educational activities within the prison.
34. Each time Mr. Johnson leaves his cell he is forced to undergo a mandatory strip-search. This includes every time he goes to the exercise cage and to

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any medical appointment. To the best of Plaintiff’s recollection, this strip-search policy has been in effect since sometime in the 1980s.
35. For the past 36 years, Mr. Johnson has been prohibited from having any visits with friends or loved ones that involve any physical contact, such as a handshake or a hug. All visitations have occurred through a partition.
36. Aside from incidental contact with prison staff, Mr. Johnson has not touched another human since 1979.
37. Since his transfer to SCI Greene in 1995, every cell he has been in has had a solid steel door with thin windows, which permits at most a highly constricted view onto the cell-block.
38. The solid steel door is effective at preventing prisoners from speaking to one another on the cell-block, increasing the isolation of those in solitary confinement.
39. Prisoners in solitary confinement are prohibited from communicating with other inmates from behind the steel cell door. Inmates can only hear each other in the solitary confinement unit when they yell, which is forbidden. If they violate this rule, prisoners can be given a misconduct charge and punished with additional time in solitary confinement.
Long-Term Solitary Confinement is a Deprivation of Plaintiff’s Basic Human Needs 40. Mr. Johnson has been deprived of basic and fundamental human needs due to his long-term solitary confinement, including, but not limited to, the following:

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mental health and environmental stimulation; social interaction; sleep; a reasonable opportunity to exercise; and dignity.
41. During his time at SCI Greene between 1995 and 2004, Mr. Johnson was told on multiple occasions by then-Superintendent Ben Varner that he would never be released from solitary confinement. As a consequence, Mr. Johnson formed the reasonable belief that his solitary confinement would be permanent, continuing until he died.
42. As the duration of his solitary confinement grew longer, Mr. Johnson began experiencing increasing feelings of anxiety, frustration, loneliness, difficulty concentrating, memory loss, and depression.
43. Mr. Johnson’s heightened anxiety, concentration and memory problems, loneliness, and depression have gotten progressively worse each year.
44. Mr. Johnson suffers from severely heightened anxiety, which he did not experience prior to his solitary confinement, and which has gotten progressively worse each year.
45. Mr. Johnson experiences ongoing and ever-increasing depression as his period in solitary confinement continues; the monotony of life in solitary confinement causes Mr. Johnson to feel hopeless about his future.
46. The depression Mr. Johnson experiences makes it challenging for him to perform basic tasks such as concentrating, sleeping, exercising, getting out of bed, reading, and writing.

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47. Mr. Johnson has had increasing difficulty sleeping. He wakes up frequently throughout the night and has difficulty getting back to sleep.
48. Mr. Johnson no longer has the capacity to feel empathy for others that he once had; his emotional capacity has been diminished by the prolonged deprivation of human contact and interaction.
49. Mr. Johnson suffers from severe cognitive impairment that did not affect him prior to his solitary confinement.
50. Mr. Johnson has increased difficulty concentrating; he has difficulty sustaining thought or focusing on a subject for more than a few minutes. This problem has gotten worse each year as his solitary confinement has continued.
51. When reading, Mr. Johnson no longer has the ability to concentrate on the material he is reading. When writing, Mr. Johnson must write increasingly shorter letters to family and friends, as it has become more difficult for him to concentrate long enough to write letters.
52. Mr. Johnson has suffered severe damage to his short-term memory capacity. He struggles to recall acts performed minutes or hours before.
53. Depression, anxiety, asocial feelings, cognitive impairment, memory loss, and concentration difficulties are well-established adverse reactions to prolonged solitary confinement. Neuroscience has also established that prolonged isolation damages brain function and physically diminishes parts of the brain.

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54. Mr. Johnson may never recover the normal human capacity to have empathy and caring feelings for others; he feels distanced and disassociated from other people.
55. There are often times when Mr. Johnson goes days without speaking to another person.
56. By continuing to hold Mr. Johnson in solitary confinement, Defendants are substantially increasing the actual harm to Mr. Johnson with each passing day. The psychologically devastating conditions imposed on Mr. Johnson will continue to exacerbate the rapid deterioration of his mental health. Even if Mr. Johnson is released from solitary confinement, he will likely struggle with depression for the rest of his life.
57. Despite the obvious and thoroughly documented risks and harms that result from long-term solitary confinement, mental health staff at SCI Frackville and the other DOC prisons in which Mr. Johnson has been held have never clinically examined Mr. Johnson, or even questioned him, regarding the psychological, emotional, or cognitive impact that his long-term solitary confinement has had and continues to have on him.
58. Solitary confinement of such a prolonged duration also places Mr. Johnson at risk of substantial harm to his physical health due to the extraordinary restrictions on his mobility and ability to exercise, the effect that his solitary-induced

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depression has on his motivation and ability to sleep, and the extreme stress placed on him by his conditions of confinement.
Restricted Release List and Lack of Meaningful Review 59. In 2003 or 2004, the DOC created something called the Restricted Release List (RRL). Prisoners placed on the RRL are held in indefinite, potentially permanent, solitary confinement. 60. RRL prisoners are not permitted to re-enter the general population without the express authorization of the Secretary of the DOC. 61. Mr. Johnson was placed on the RRL in 2004. 62. The sole decision-maker regarding whether to keep a prisoner on the RRL in solitary confinement is the Secretary of the DOC. 63. In October 2012, DOC policy was changed to mandate an annual review of RRL prisoners’ solitary confinement by the Secretary of the DOC. 64. The review process for RRL prisoners involves the circulation of a vote sheet. Select staff members and officials at the prison vote on whether or not to recommend a prisoner for removal from the RRL. The process and standards for recommending removal are opaque. 65. The RRL vote sheet is sent from the prison where the RRL prisoner is held to the DOC Central Office, where the Regional Deputy Secretary and Executive Deputy Secretary also provide recommendations. As with the process at prisons, the process and standards for recommending removal are opaque.

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66. After all recommendations are provided to the Secretary of the DOC, the Secretary decides on whether to continue holding the prisoner in solitary confinement on the RRL. Again, the standards and process for decision-making are unknown and seemingly arbitrary.
67. The entire RRL vote sheet process is done without any input from the prisoner, and the prisoner is never provided with information regarding the recommendations of any of the staff members or officials, or the reasons for such recommendations.
68. Prisoners on the RRL are not provided any substantive information regarding the basis for any decision made by the DOC Secretary.
69. Johnson is seen by the Program Review Committee (PRC) for a hearing every 90 days—the only opportunity that Mr. Johnson is afforded to speak regarding his solitary confinement. However, the PRC only addresses issues that Mr. Johnson may be having in solitary confinement, but not the appropriateness or justification for his continued solitary confinement.
70. Pursuant to DOC policies, the PRC has no authority to release a prisoner held on the RRL from solitary confinement. Accordingly, the PRC does not engage in a review of the appropriateness of keeping RRL prisoners in solitary confinement.
71. On information and belief, the PRC does not assess whether Mr. Johnson remains a security risk.

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72. Prison officials have told Mr. Johnson that he will remain in solitary confinement based solely on his past disciplinary record in prison, referring only to allegations and incidents that are at least 28 years old. Prison officials’ references to Mr. Johnson’s decades-old disciplinary record are always vague and lacking in any specificity regarding the incidents being referred to or how these incidents justify continuing his solitary confinement today.
73. In June 2015, then-Deputy Miller told Johnson at a PRC hearing that he did not think Mr. Johnson could make it in the general population because he has been in solitary confinement too long. This “Catch 22” situation shows the futility of Mr. Johnson’s situation; according to prison officials he has been held in solitary confinement for so long that he now must be held there permanently.
74. Although prison officials at SCI Frackville have told Mr. Johnson that he will remain in solitary confinement permanently due to his past disciplinary record, the sole decision-maker in the matter, Defendant Wetzel, has never communicated any reason to Johnson as to why he remains in solitary confinement.
75. Defendants do not afford Mr. Johnson, or any other qualified person or medical professional, any meaningful opportunity to weigh in on the continued appropriateness of his solitary confinement or his desire and ability to re-enter the general population.
76. Mr. Johnson has not been accused of any serious disciplinary infraction in over 25 years.

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77. On information and belief, nothing that Mr. Johnson says at PRC hearings is transmitted to the sole decision-maker on his solitary confinement status, Defendant Wetzel.
78. DOC policy does not provide a prisoner on the RRL any opportunity to challenge his solitary confinement by providing information or input to the decisionmaker.
79. Mr. Johnson has never been provided with any written or other substantive explanation of the basis for the decision to keep him in solitary confinement.
80. Defendants have never told Mr. Johnson what is required of him in order to be released to the general population.
Roles of the Defendants in Continuing Johnson’s Solitary Confinement 81. Defendants are aware of the harms and risks caused by long-term solitary confinement. 82. More than 36 years of being forced to live in a very small concrete and steel area, in complete isolation, results in physical and psychological harm that are obvious to any person, including the Defendants. 83. Defendants are aware that Mr. Johnson is being deprived of his basic human needs for mental and physical health, environmental stimulation, social interaction, exercise, sleep, and dignity on account of his long-term solitary confinement.

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84. Defendants have articulated no valid basis for Mr. Johnson’s solitary confinement.
85. Defendants are aware that there is no contemporary, valid basis for Mr. Johnson’s solitary confinement.
86. Defendant Wetzel is the Secretary of the DOC, its highest-ranking DOC official. As such he is the only official with the authority to remove Mr. Johnson from the RRL and to authorize his release into the general prison population.
87. Defendant Wetzel has made numerous decisions to retain Mr. Johnson in solitary confinement.
88. Defendant Wetzel is aware of the risks and harms associated with longterm solitary confinement. These risks and harms are known and understood by prison officials.
89. Defendant Wetzel has not taken any measures to release Mr. Johnson from solitary confinement.
90. Defendant Wetzel has not informed Mr. Johnson as to the basis for his continuing solitary confinement.
91. Defendant Wetzel has not informed Mr. Johnson what he must do in order to be released from solitary confinement.
92. Defendant Wetzel has made no effort to seek input from Mr. Johnson, qualified medical professionals, or any other party regarding his solitary confinement.

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93. Defendant Smeal is the Executive Deputy Secretary of the DOC. She makes a recommendation as to whether Mr. Johnson should be released to the general population or remain in solitary confinement.
94. Defendant Smeal is aware of the risks and harms associated with longterm solitary confinement. These risks and harms are known and understood by prison officials.
95. Defendant Smeal has not taken any measures to release Mr. Johnson from solitary confinement, or to recommend his release.
96. Defendant Smeal has not informed Mr. Johnson as to the basis for his continuing solitary confinement, nor of the basis for her own recommendations.
97. Defendant Smeal has not informed Mr. Johnson what he must do in order to be released from solitary confinement.
98. Defendant Smeal has made no effort to seek input from Mr. Johnson, qualified medical professionals, or any other qualified person regarding his solitary confinement.
99. Defendant Wenerowicz is the Regional Deputy Secretary of the DOC for the Eastern Region. He makes a recommendation as to whether Mr. Johnson should be released to the general population or remain in solitary confinement.
100. Defendant Wenerowicz is aware of the risks and harms associated with long-term solitary confinement. These risks and harms are known and understood by prison officials.

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101. Defendant Wenerowicz has not taken any measures to release Mr. Johnson from solitary confinement, or to recommend his release.
102. Defendant Wenerowicz has not informed Mr. Johnson as to the basis for his continuing solitary confinement, nor of the basis for his own recommendations.
103. Defendant Wenerowicz has not informed Mr. Johnson what he must do in order to be released from solitary confinement.
104. Defendant Wenerowicz has made no effort to seek input from Mr. Johnson, qualified medical professionals, or any other qualified person regarding his solitary confinement.
105. Defendant Tritt is the Superintendent of SCI Frackville. She makes a recommendation as to whether Mr. Johnson should be released to the general population or remain in solitary confinement. She is also responsible for the operation of SCI Frackville.
106. Defendant Tritt is aware of the risks and harms associated with longterm solitary confinement. These risks and harms are known and understood by prison officials.
107. Defendant Tritt has not taken any measures to release Mr. Johnson from solitary confinement, or to recommend his release.
108. Defendant Tritt has not informed Mr. Johnson as to the basis for his continuing solitary confinement, nor of the basis for her own recommendations.

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109. Defendant Tritt has not informed Mr. Johnson what he must do in order to be released from solitary confinement.
110. Defendant Tritt has made no effort to seek input from Mr. Johnson, qualified medical professionals, or any other qualified person regarding his solitary confinement.
111. On those occasions in which Defendant Tritt has spoken with Mr. Johnson, she has been dismissive of his requests to be released from solitary confinement, refusing to consider or discuss the matter.
112. Defendant Meintel is the Deputy Superintendent for Facilities Management at SCI Frackville. He makes a recommendation as to whether Mr. Johnson should be released to the general population or remain in solitary confinement.
113. Defendant Meintel is also a member of the Program Review Committee. 114. Defendant Meintel is aware of the risks and harms associated with longterm solitary confinement. These risks and harms are known and understood by prison officials. 115. Defendant Meintel has not taken any measures to release Mr. Johnson from solitary confinement, or to recommend his release. 116. Defendant Meintel has not informed Mr. Johnson as to the basis for his continuing solitary confinement, nor of the basis for his own recommendations.

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117. Defendant Meintel has not informed Mr. Johnson what he must do in order to be released from solitary confinement.
118. Defendant Meintel has made no effort to seek input from Mr. Johnson, qualified medical professionals, or any other qualified person regarding his solitary confinement.
119. On those occasions in which Defendant Meintel has spoken with Mr. Johnson, he has been dismissive of his requests to be released from solitary confinement, refusing to consider or discuss the matter.
120. Defendant Kovalchik is the Deputy Superintendent for Centralized Services at SCI Frackville. He makes a recommendation as to whether Mr. Johnson should be released to the general population or remain in solitary confinement.
121. Defendant Kovalchik is also a member of the Program Review Committee.
122. Defendant Kovalchik is aware of the risks and harms associated with long-term solitary confinement. These risks and harms are known and understood by prison officials.
123. Defendant Kovalchik has not taken any measures to release Mr. Johnson from solitary confinement, or to recommend his release.
124. Defendant Kovalchik has not informed Mr. Johnson as to the basis for his continuing solitary confinement, nor of the basis for his own recommendations.

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125. Defendant Kovalchik has not informed Mr. Johnson what he must do in order to be released from solitary confinement.
126. Defendant Kovalchik has made no effort to seek input from Mr. Johnson, qualified medical professionals, or any other qualified person regarding his solitary confinement.
127. On those occasions in which Defendant Kovalchik has spoken with Mr. Johnson, he has been dismissive of his requests to be released from solitary confinement, refusing to consider or discuss the matter.
Exhaustion of Administrative Remedies 128. Under the DOC’s Administrative Custody policy DC-802, “[a]ll issues concerning an inmate’s placement in AC custody or the duration, conditions or other circumstances of his/her AC custody must be addressed through the procedures set forth in this directive and may not be addressed through the procedures set forth in Department policy DC-ADM 801, ‘Inmate Discipline’ or DC-ADM 804, ‘Inmate Grievance System.’” The DC-802 further provides that all issues must be addressed at PRC hearings, and that appeals regarding these issues must be filed to the Superintendent within two days after the hearing. Once the Superintendent replies, a prisoner must appeal to Central Office if he or she is dissatisfied with the response. 129. Prisoners on the Restricted Release List, such as Plaintiff, are held pursuant to the DC-802 Administrative Custody policy and are considered Administrative Custody RHU prisoners.

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130. In January 2014, Mr. Johnson appealed his solitary confinement following a PRC hearing. Superintendent Tritt denied his appeal.
131. When Mr. Johnson appealed this denial to Central Office he was told by Chief Hearing Examiner Robin Lewis that “appeal of placement on the Restricted Release List is not permitted.”
132. On June 26, 2014, Mr. Johnson was seen by the PRC again. On that same day he appealed the PRC’s continuance of his solitary confinement to Superintendent Tritt. After receiving no response to his appeal, Mr. Johnson submitted a request slip asking for a response. This was not responded to either, so Mr. Johnson filed a grievance over the matter on August 4, 2014.
133. On September 19, 2014, following a PRC hearing Mr. Johnson submitted an appeal to Superintendent Tritt of his continued solitary confinement pursuant to the applicable DC-ADM 802 policy.
134. Mr. Johnson’s September 2014 appeal did not receive a response from Superintendent Tritt.
135. On August 27, 2015, following a PRC hearing, Mr. Johnson again appealed his solitary confinement status in accordance with the DC-ADM 802 policy. Superintendent Tritt rejected his appeal, stating that Central Office had not yet determined whether he would continue in solitary confinement.
136. Mr. Johnson appealed this decision to Central Office and was again informed that “appeal of placement on the Restricted Release List is not permitted.”

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137. Despite repeated attempts to appeal his solitary confinement according to DOC policy, prison officials have refused to respond, and on two occasions he has been informed by the highest administrative authority in the DOC that there is no administrative remedy that will be made available to those on the RRL.
138. For the foregoing reasons, Mr. Johnson has satisfied the requirement that he exhaust all available administrative remedies.
CAUSES OF ACTION COUNT I.
Violation of the Eighth Amendment to the U.S. Constitution -- Against All Defendants 139. Plaintiff re-alleges paragraphs ## as if fully stated herein. 140. Each Defendant, individually and collectively, has violated Mr. Johnson’s right under the Eighth and Fourteenth Amendments to the U.S. Constitution to be free from cruel and unusual punishment by acts and omissions manifesting a deliberate indifference to the deprivation of Mr. Johnson’s basic human needs for physical health, mental health, environmental stimulation, social interaction, exercise, sleep, and basic human dignity. 141. All Defendants have violated Mr. Johnson’s right under the Eighth and Fourteenth Amendments to the U.S. Constitution to be free from cruel and unusual punishment by keeping Mr. Johnson in conditions of solitary confinement that cause

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severe pain without penological purpose, and which are grossly disproportionate to any purported governmental interest.
142. All Defendants have violated Mr. Johnson’s right under the Eighth and Fourteenth Amendments to the U.S. Constitution to be free from cruel and unusual punishment by keeping Mr. Johnson in solitary confinement for an extended and unlimited period, and such confinement has caused, and continues to cause, substantial physical and psychological harm to him.
COUNT II. Violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution -- Against All Defendants 143. Plaintiff re-alleges paragraphs ## as if fully stated herein. 144. All Defendants have violated Mr. Johnson’s right under the due process clause of the Fourteenth Amendment to the U.S. Constitution including, without limitation, by engaging in the following conduct: failing to provide Mr. Johnson with a meaningful opportunity to challenge his solitary confinement, including providing him information regarding the basis for any decisions regarding the continuation of his solitary confinement; failing to provide Mr. Johnson a meaningful opportunity to be heard in order to challenge his continuing solitary confinement; denying Mr. Johnson any opportunity to provide information to and/or to influence the ultimate decision-maker regarding his continuing solitary confinement; and informing

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Mr. Johnson what is required of him in order for him to be released from solitary confinement.
COUNT III. Substantive Due Process Violation -- Against All Defendants 145. Plaintiff re-alleges paragraphs ## as if fully stated herein. 146. All Defendants have violated Mr. Johnson’s right to substantive due process under the Fourteenth Amendment to the United States Constitution by continuing to hold him in solitary confinement for nearly 36 years without a valid penological or other justification. Defendants’ conduct shocks the conscience and does not have a rational basis.
PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that the Court grant the following relief:
A. Declare Defendants’ conduct unlawful; B. Enjoin and restrain Defendants from incarcerating Mr. Johnson in
solitary confinement or other similar conditions and order Mr. Johnson’s placement in the general population; C. Mandate that Defendants provide Mr. Johnson with proper psychological and mental health services made necessary due to his prolonged solitary confinement; D. Award compensatory and punitive damages; E. Grant attorneys’ fees and costs; and

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F. Such other relief as the Court deems just and proper.

Dated: May 12, 2016

Respectfully submitted,

/s/ Bret Grote Bret Grote Pa. Bar No. 317273 Dustin McDaniel Pa. Bar No. 314618 Abolitionist Law Center Telephone: (412) 654-9070 bretgrote@yahoo.com dsm@abolitionistlawcenter.org
Jules Lobel* N.Y. Bar No. 1262732 3900 Forbes Avenue Pittsburgh, PA 15260 Telephone: (412) 648-1375 jll4@pitt.edu
Thomas S. Jones* Pa. Bar No. 71636 JONES DAY 500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 tsjones@jonesday.com
Peter D. Laun* Pa. Bar No. 67325 JONES DAY 500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 pdlaun@jonesday.com

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Tarah E. Ackerman* Pa. Bar No. 311411 JONES DAY 500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 tackerman@jonesday.com
*Applying for admission pro hac vice
Attorneys for Plaintiff Arthur Johnson.

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

ARTHUR JOHNSON, Plaintiff
v.

CIVIL ACTION NO. 1:16-CV-863 (Chief Judge Conner)

JOHN WETZEL, SHIRLEY MOORESMEAL, MICHAEL WENEROWICZ, BRENDA TRITT, JAMES MEINTEL and ANTHONY KOVALCHIK,
Defendants

JOINT STEP-DOWN PROGRAM FOR ARTHUR JOHNSON

The parties have met and conferred as directed by this Honorable Court and

have jointly agreed upon the following step-down program for Arthur Johnson's

reintegration to general population as follows:

1. In an effort to accommodate the 90 day time-frame, short-term mental health treatment, and high security focus of Arthur Johnson's step-down program, Arthur Johnson will be housed in a Diversionary Treatment Unit ("DTU"). Mr. Johnson will be transferred to an appropriate State Correctional Institution ("SCI") with a DTU following regular security screening protocol. Upon reception to the SCI, Mr. Johnson will be seen as soon as possible by Unit Management staff, who will brief him on unit rules and expectations, and give Mr. Johnson a DTU handbook, explaining the unit.

2. Time Out of Cell and Social Interactions. Mr. Johnson will be seen weekly by his assigned Correctional Counselor and Unit Manager. Contact with Unit Management staff can be during Out of Cell time, cell side or individually, if needed. At his first Program Review Committee ("PRC") review, to be held every Tuesday, he will be offered full DTU privileges to include four (4) phone calls per week, Long Term AC commissary, and Radio(I'V privileges, if he possesses these items. He will be offered 20 hours

out of cell weekly (10 structured/10 unstructured), the same as any other DTU inmate. The structured hours consist of modules delivered by Treatment Specialists, Psychology Staff Specialists, Chaplaincy, Activities and other designated staff. The unstructured hours will consist of yard time and/or recreational time out of cell on the unit.
On or about day 30 after his placement, provided his conduct is acceptable, Mr. Johnson will be offered block worker duties. At a minimum, Mr. Johnson will be brought out of his cell three (3) times weekly, unsecured, supervised by correctional staff, to perform janitorial duties on the unit. This will continue through the 90 day release date, absent disruptive conduct.
Initially, Mr. Johnson will be given the same number of non-contact visits per month that he received prior to entering the program. After thirty days, Mr. Johnson will be presumptively granted contact visits, numbering no less than one-per-month, unless the PRC determines that contact visits are not appropriate. PRC may make this determination only in the event of documented concerns regarding Mr. Johnson's mental health or behavior. Any documented concerns that result in the denial of non-contact visits after thirty days must be reported to counsel for Plaintiff and to the Court. Each contact visit granted will replace one non-contact visit so that the number of total visits received does not change; however, the number and type of visits afforded to Mr. Johnson will be evaluated weekly by PRC and can be increased based on behavior and inmate request.
2. Progressive Increase in Social Interaction. As stated previously, Mr. Johnson will be placed on the DTU upon reception, where he will be offered 20 hours out of cell time weekly. It will be explained to Mr. Johnson that participation in out of cell programming is essential to his program completion. At a minimum, he will be expected to participate in 30% of Out of Cell offerings during the first 30 days. From 30 days to 60 days, he will be expected to participate in at least 60% of Out of Cell offerings and during the last 30 days of the plan, his participation rate should be 90% at a minimum. This will be communicated to Mr. Johnson upon reception and noted on his Individual Recovery Plan ("IRP"). These rates are goals; however, as noted previously, Mr. Johnson will be offered the full20 hours

upon reception. These participation rates will give staff the opportunity to observe Mr. Johnson's social interaction with both staff and inmates.
3. Mental Health Monitoring and Treatment. As noted, Mr. Johnson will be participating in DTU programming. This will immediately provide him increased social interaction. Mr. Johnson will meet with Psychology Staff upon arrival and an initial Psychological Evaluation will be conducted within three (3) business days. Further, a psychiatric evaluation will be performed if indicated. An IRP will also be developed for Mr. Johnson, establishing goals and objectives for successful reintegration. The IRP will be reviewed and amended as Mr. Johnson's needs/concerns change. Psychology staff will meet with Mr. Johnson at a minimum of one hour weekly for individual therapy. This interaction will be increased should the need arise. Psychology staff will also make daily Mental Health contact to address any emergency needs, should they arise. In addition, the Department of Corrections will utilize a Certified Peer Specialist ("CPS") inmate who will orientate Johnson on the General Population inmate handbook and assist in general questions regarding what to expect in General Population. This will happen at least once a week during the entire placement period.
4. Addressing Adverse Mental Health Symptoms. Mental health services will be provided based on the outcome of all delivered mental health evaluations. The Licensed Psychologist Director will provide clinical supervision regarding current level of care, presenting needs, and he will direct and supervise necessary adjustments to the level of care and services. Monthly summaries will be provided to Central Office if need arises. If adverse mental health symptoms are expected to interfere with Johnson's move to general population, counsel for Plaintiff and the Court shall be notified.
5. Ensuring Readiness for General Population. Security staff will monitor Mr. Johnson's compliance with unit rules and notate his interactions on the form DC-17X daily. His conduct on the unit will be discussed with him weekly during his PRC reviews. If PRC has any concerns with placement in general population, due to rule violations or social interaction concerns, contact with Central Office will be made and a plan of action will be developed by institutional staff. If a determination is made that Johnson is not ready for reintroduction to general population, counsel for Plaintiff and the Court shall be notified in writing.

6. Follow-Up in General Population. Absent disruptive conduct or concerns covered above, Mr. Johnson will be placed in general population after 90 days of placement. Follow-up by psychology/psychiatry will continue on a regular basis. Mr. Johnson will have his IRP reviewed, updated, and issued for the first 90 days of his return to general population. After this period, it will follow time frames based on his stability score and in accordance with DOC Policy.
Currently, Mr. Johnson's correctional plan recommends Thinking for a Change and Violence Prevention High Intensity. Upon successful placement in general population, Mr. Johnson may be placed in the next available Thinking for a Change class. After completion of Thinking for a Change, placement in Violence Prevention High Intensity will occur if staff deems this necessary.
Overall administrative oversight will occur during weekly PRC meetings. Clinical supervision will be handled by the Licensed Psychologist Director on a regular basis to ensure appropriate services are paralleling the presenting needs.

Date: September 28, 2016

Respectfully submitted,

Is/ M. Abbegael Giunta
M. Abbegael Giunta Senior Deputy Attorney General Attorney ID 94059 Karen M. Romano Deputy Attorney General Attorney ID 88848 mgiunta@attorneygeneral.gov kromano@attorneygeneral.gov

Is/ Bret Grote
Bret Grote Pa. Bar No. 317273 Dustin McDaniel Pa. BarNo. 314618 Abolitionist Law Center Telephone: (412) 654-9070 bretgrote@yahoo.com dsm@abolitionistlawcenter.org

Kenneth L. Joel Chief Deputy Attorney General
Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Telephone: (717) 787-1179 Fax: (717) 772-4526
Attorneys for Defendants

Jules Lobel* N.Y. Bar No. 1262732 3900 Forbes Avenue Pittsburgh, PA 15260 Telephone: (412) 648-1375 jll4@pitt.edu
Peter D. Laun* Pa. BarNo. 67325 Thomas S. Jones* Pa. Bar No. 71636 Tarah E. Ackerman* Pa. BarNo. 311411
JONES DAY
500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 pdlaun@jonesday.com tsjones@j onesday.com tackerman@jonesday.com
*Pro hac vice Attorneys for PlaintiffArthur Johnson.

It is so Ordered this 3cf'- day of September, 2016.
CHRISTOPHER C. CONNER, J.

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

ARTHUR JOHNSON,

Plaintiff,

v.

JOHN WETZEL, SHIRLEY MOORESMEAL, MICHAEL WENEROWICZ, BRENDA TRITT, JAMES MEINTEL and ANTHONY KOVALCHIK,
Defendants.

No. 16-0863 Judge Conner Electronically Filed Document Complaint Filed 05/12/16

CERTIFICATE OF SERVICE I, M. Abbegael Giunta, Senior Deputy Attorney General for the

Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that

on September 28, 2016, I caused to be served a true and correct copy of the

foregoing document titled Joint Proposed Step-Down Program for Arthur Johnson

to the following ECF:

Bret D. Grote, Esquire Dustin McDaniel, Esquire Jules Lobel, Esquire Abolitionist Law Center P.0. Box 8654 Pittsburgh, PA 15221 betgrote@abolitionistlawcenter.org exec@alcenter.org Counsel for Plaintiff

Peter D. Laun, Esquire Tarah E. Ackerman, Esquire Thomas S. Jones, Esquire 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 pdlaun@jonesday.com tackerman@jonesday.com tsjones@jonesday.com Counselfor Plaintiff

Theron Perez, Esquire Timothy A. Holmes, Esquire

Department of Corrections Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17070 tperez@pa.gov tholmes@pa.gov Counsel for Defendants
sfM. Abbegael Giunta M. ABBEGAEL GIUNTA Senior Deputy Attorney General

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

ARTHUR JOHNSON,
Plaintiff
v.
JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections, et al.,
Defendants

: CIVIL ACTION NO. 1:16-CV-863 : : (Chief Judge Conner) : : : : : : : :

ORDER

AND NOW, this 20th day of September, 2016, upon consideration of the

motion (Doc. 3) for preliminary injunction by plaintiff Arthur Johnson (“Johnson”),

the parties’ briefs (Docs. 4, 33, 34) and proposed findings of fact and conclusions of

law (Docs. 65-66) in support of and opposition to said motion, respectively, and the

evidence presented during the preliminary injunction hearings convened on July 6,

2016, and August 11, 2016, and further upon consideration of Johnson’s motion

(Doc. 60) to unseal testimony, and for the reasons set forth in the accompanying

memorandum, it is hereby ORDERED that:

1. Johnson’s motion (Doc. 3) for preliminary injunction is GRANTED.

2. Subject to development and implementation of the program set forth in paragraph 3 below, defendants are PRELIMINARILY ENJOINED from maintaining Johnson in solitary confinement in the restricted housing unit.

3. The parties are DIRECTED to forthwith meet and confer with the goal of jointly developing an appropriate step-down program for Johnson’s reintegration into general population, with the goal of achieving said reintegration within ninety (90) days of the date of his transfer to an appropriate facility having a step-down program or capabilities in place.
4. On or before Wednesday, September 28, 2016, the parties shall submit a joint proposed step-down program for the court’s review and approval, or in the event the parties are unable to agree, separate proposals for the court’s consideration.
5. The step-down program identified in paragraphs 3 and 4 shall, at minimum:
a. Provide Johnson with progressively increasing out-of-cell time and opportunities for social interaction with other inmates and with visitors;
b. Provide for effective monitoring of Johnson’s mental health progress, with mental health staff assisting in the reintegration and resocialization process by providing out-of-cell therapy and treatment to ameliorate the effects of Johnson’s prolonged isolation; and
c. Continue to provide the above-described mental health counseling for as long as necessary upon Johnson’s successful reintegration to general population.
6. In the event defendants determine that Johnson’s reintegration must be delayed for reasons of his own safety or the safety of others, for example, in the event of serious misconduct, require defendants to document in detail their reasons for the delay and submit said documentation to the court forthwith.
7. The court finds that the relief granted hereinabove is narrowly drawn, extends no further than necessary to correct the harm requiring relief, and is the least intrusive means necessary to correct that harm. See 18 U.S.C. § 3626(a)(2).
2

8. Johnson’s motion (Doc. 60) to unseal testimony of Siena Smith is GRANTED. The Clerk of Court shall UNSEAL the transcript (Doc. 63) of Siena Smith’s testimony and the parties’ proposed findings of fact and conclusions of law (Docs. 65-66) forthwith.
/S/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania

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

ARTHUR JOHNSON,
Plaintiff
v.
JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections, et al.,
Defendants

: CIVIL ACTION NO. 1:16-CV-863 : : (Chief Judge Conner) : : : : : : : :

ORDER

AND NOW, this 10th day of August, 2016, upon consideration of the court’s

memorandum (Doc. 45) and order (Doc. 46) dated August 5, 2016, granting in part

and deferring in part the motion (Doc. 39) to compel discovery filed by plaintiff

Arthur Johnson (“Johnson”), wherein the court determined that Johnson has

overcome the deliberative process privilege asserted by defendants with respect

to certain documents requested sub judice, but otherwise determined to defer,

pending in camera inspection, any ruling concerning defendants’ assertion that

disclosure of said documents implicates institutional security and individual safety

concerns, and that at least one document is protected attorney work product, and,

following an in camera inspection, and upon review of the declaration of John

Wetzel, Secretary of the Pennsylvania Department of Corrections, stating with

particularity the nature and source of the threat posed by disclosure of the

requested documents, and defendants’ proposed confidentiality agreement,

the court finding, with respect to defendants’ security risk assertions, that public

disclosure of the requested documents may jeopardize both institutional security

and the individual safety of correctional officers, staff, and inmates, and that
defendants’ proposed confidentiality order strikes an appropriate balance between
the need to produce uniquely probative discovery to counsel for Johnson while
mitigating institutional security and individual safety concerns attending broader
disclosure, see, e.g., Mincy v. Chmielewski, No. 1:05-CV-292, 2006 WL 3042968, at *2
(M.D. Pa. Oct. 25, 2006); and the court finding further, with respect to defendants’
assertion of attorney work product privilege as to one document in particular, to
wit: an email between Jaime Boyd (“Boyd”) and Theron Perez (“Perez”), counsel
for the Department, that said document does in fact reflect the legal opinions of
counsel for the Department with respect to the subject matter of this litigation and
is thus privileged, see FED. R. CIV. P. 26(b)(3), it is hereby ORDERED that:
1. Johnson’s motion (Doc. 39) to compel is DENIED with respect to the Boyd and Perez email.
2. Subject to the requirement that all counsel execute the proposed confidentiality order prepared by defendants and reviewed by the undersigned, Johnson’s motion (Doc. 39) to compel is otherwise conditionally GRANTED.
3. Upon execution by all parties of defendants’ proposed confidentiality agreement and filing of same with the court, defendants shall forthwith produce to Johnson’s counsel, in unredacted form, the following:
a. Four (4) DC-46 vote sheets, dated September 21, 2012, October 16, 2013, August 28, 2014, and August 20, 2015;
b. Three RRL annual review sheets; c. The memorandum from Senior Policy Analyst Madeline
McPherson to John Wetzel, Secretary of the Department of Corrections (“Department”) dated October 23, 2015; d. The “RRL Checklist”;
2

e. Four annual RRL psychological evaluations dated January 13, 2012, August 19, 2013, November 20, 2014, and October 6, 2015;
f. The memorandum from Superintendent Michael Barone to Secretary Wetzel dated August 4, 2009;
g. The custodial status of similarly-situated inmates is relevant to Johnson’s instant constitutional claims;
h. The “Integrated Case Summary – Classification”; and i. The “inmate Query – Separations.”
4. Violation of the anticipated confidentiality agreement by any party thereto may result in the imposition of appropriate sanctions.
/S/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania

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

ARTHUR JOHNSON,
Plaintiff
v.
JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections, et al.,
Defendants

: CIVIL ACTION NO. 1:16-CV-863 : : (Chief Judge Conner) : : : : : : : :

ORDER

AND NOW, this 5th day of August, 2016, upon consideration of the

motion (Doc. 39) by plaintiff Arthur Johnson (“Johnson”) to compel discovery,

and for the reasons set forth in the accompanying memorandum, it is hereby

ORDERED that:

1. Johnson’s motion (Doc. 39) to compel is GRANTED to the extent the court declines to apply the deliberate process privilege to any of the following documents:

a. Four (4) DC-46 vote sheets, dated September 21, 2012, October 16, 2013, August 28, 2014, and August 20, 2015;
b. Three RRL annual review sheets; c. The memorandum from Senior Policy Analyst Madeline
McPherson to John Wetzel, Secretary of the Department of Corrections (“Department”) dated October 23, 2015; d. The “RRL Checklist”; e. Four annual RRL psychological evaluations dated January 13, 2012, August 19, 2013, November 20, 2014, and October 6, 2015; and f. The memorandum from Superintendent Michael Barone to Secretary Wetzel dated August 4, 2009.

2. Johnson’s motion (Doc. 39) is further GRANTED to the extent the court concludes that the custodial status of similarly-situated inmates is relevant to Johnson’s instant constitutional claims.
3. Johnson’s motion (Doc. 39) is DEFERRED to the extent it requests production of an email between Jaime Boyd, assistant counsel for the Department, and Theron Perez, the Department’s chief counsel, pending an in camera review of the email by the court to determine whether the attorney work product privilege applies thereto.
4. Johnson’s motion (Doc. 39) is further DEFERRED to the extent it requests production of the documents identified in paragraphs 1, 2, and 3, pending an in camera review of the documents by the court to determine whether production thereof poses a risk to institutional security or individual safety and whether a confidentiality agreement or protective order must attend any production of said documents.
5. Counsel for defendants shall produce the documents identified in paragraphs 1, 2, and 3 above, as well as the “Integrated Case Summary– Classification” and “Inmate Query – Separations,” for in camera review by the court no later than 12:00 p.m. on Tuesday, August 9, 2016. Counsel shall produce these documents together with a statement by Secretary Wetzel identifying with particularity the nature and source of the threat posed by disclosure of each of the documents enumerated in paragraphs 1 and 2, as well as a proposed protective order or confidentiality agreement to govern any production or disclosure of said documents.
/S/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania

 
 Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 2 of 90
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ARTHUR JOHNSON,
Plaintiff,
v.
JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections (DOC), SHIRLEY MOORE-SMEAL, Executive Deputy Secretary of the DOC; MICHAEL WENEROWICZ, Regional Deputy Secretary of the DOC; BRENDA TRITT, Superintendent SCI Frackville; JAMES MEINTEL, Deputy Superintendent SCI Frackville, ANTHONY KOVALCHIK, Deputy Superintendent SCI Frackville. Defendants.,
Defendants.

EXPERT REPORT OF PROFESSOR CRAIG HANEY,
Ph.D., J.D.

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 3 of 90
Table of Contents
I. Summary of Expert Qualifications II. Basis of Expert Opinion III. Summary of Expert Opinion IV. The Scientific, Correctional, and Human Rights Consensus Concerning the
Adverse Psychological Effects of Punitive Isolation
A. Scientific Research on the Painful and Harmful Effects of Isolated Confinement
B. The Shifting Correctional Consensus on the Painful and Harmful Effects of Isolated Confinement
C. Legal and Human Rights Standards Addressing the Painful and Harmful Effects of Isolated Confinement
D. The Consensus on Limiting to Very Brief Exposure, Only After a Showing of Absolute Need or Necessity, and the Exclusion of Vulnerable Populations
V. Arthur Johnson’s Conditions of Confinement and Institutional History
A. The Conditions of Isolated Confinement to Which Arthur Johnson Has Been Exposed
B. Arthur Johnson’s Pennsylvania DOC File Since 2003
1) Mr. Johnson’s Custody and Classification Records in the DOC 2) Mr. Johnson’s Mental Health Records in the DOC
VI. The Psychological Effects of Arthur Johnson’s Extraordinarily Prolonged Isolated Confinement
VII. Conclusion: Arthur Johnson’s Long-Term Solitary Confinement Cruelly Inflicts Extreme Psychological Pain and Lasting Damage That Derives In Large Part From the Experience of Social Death To Which It Has Subjected Him

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 4 of 90

I. SUMMARY OF EXPERT QUALIFICATIONS

1.

I am a Distinguished Professor of Psychology at the

University of California, Santa Cruz, where I also currently serve as the

Director of the Legal Studies Program. My area of academic specialization

is in what is generally termed “psychology and law,” which is the

application of psychological data and principles to legal issues. I teach

graduate and undergraduate courses in social psychology, psychology and

law, and research methods. I received a bachelor's degree in psychology

from the University of Pennsylvania, an M.A. and Ph.D. in Psychology and

a J.D. degree from Stanford University, and I have been the recipient of a

number of scholarship, fellowship, and other academic awards.

2. I have published numerous scholarly articles and book

chapters on topics in law and psychology, including encyclopedia and

handbook chapters on the backgrounds and social histories of persons

accused of violent crimes, the psychological effects of imprisonment, and

the nature and consequences of solitary or “supermax”-type confinement.

In addition to these scholarly articles and book chapters, I have published

two sole-authored books: Death by Design: Capital Punishment as a

Social Psychological System (Oxford University Press, 2005), and

Reforming Punishment: Psychological Limits to the Pains of

Imprisonment (American Psychological Association Books, 2006).

3. In the course of my academic work in psychology and law, I

have lectured and given invited addresses throughout the country on the

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 5 of 90
role of social and institutional histories in explaining criminal violence, the psychological effects of living and working in institutional settings (typically maximum security prisons), and the psychological consequences of solitary confinement. I have given these lectures and addresses at various law schools, bar associations, university campuses, and numerous professional psychology organizations such as the American Psychological Association.
4. I also have served as a consultant to numerous governmental, law enforcement, and legal agencies and organizations, including the Palo Alto Police Department, various California Legislative Select Committees, the National Science Foundation, the American Association for the Advancement of Science, and the United States Department of Justice. For example, in the summer of 2000, I was invited to attend and participated in a White House Forum on the uses of science and technology to improve crime and prison policy, and in 2001 I participated in a conference jointly sponsored by the United States Department of Health and Human Services (DHHS) concerning government policies and programs that could better address the needs of formerly incarcerated persons as they were reintegrated into their communities. I continued to work with DHHS on the issue of how best to insure the successful reintegration of prisoners into the communities from which they have come. More recently, I consulted with the Department of Homeland Security and Department of Defense on detention-related issues, served as both a consultant to and an expert witness before the

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 6 of 90
United States Congress and, most recently, I have briefed members of the White House Domestic Policy Advisory Council, representatives of the United States Department of Justice, and members of Congress several times in Washington, DC on prison and isolation reform-related issues in the last several years. I also serve on the National Advisory Board for the Vera Institute’s Safe Alternatives to Segregation Initiative.
5. In 2012, I testified as an invited witness in an historic hearing in the United States Senate in 2012, before Senator Richard Durbin’s subcommittee, in the first ever such hearing to address problematic aspects of solitary confinement and prison isolation policies and practices. Also in 2012, I was appointed to a National Academy of Sciences committee addressing the causes and consequences of high rates of incarceration in the United States and, along with my fellow committee members, published a book-length analysis of that issue, which was the culmination of two years of our collective study.1 In addition, in 2013, I was promoted to Distinguished Professor of Psychology, the highest level of the professoriate in the University of California system, and in 2015 was selected as the Annual Distinguished Faculty Research Lecturer from among the entire UC Santa Cruz faculty, as well as named UC Presidential Chair, 2015-2018. A copy of my curriculum vitae is attached to this Expert Report as Exhibit 1.
1 National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences. Committee on Causes and Consequences of High Rates of Incarceration, J. Travis, B. Western, and S. Redburn (Editors). Committee on Law and Justice, Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press (2014).

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 7 of 90
6. My academic interest in the psychological effects of various prison conditions is long-standing and dates back to 1971, when I was still a graduate student. I was one of the principal researchers in what has come to be known as the “Stanford Prison Experiment,” in which my colleagues Philip Zimbardo, Curtis Banks, and I randomly assigned normal, psychologically healthy college students to the roles of either “prisoner” or “guard” within a simulated prison environment that we had created in the basement of the Psychology Department at Stanford University. The study has since come to be regarded as a “classic” study in the field of social psychology, demonstrating the power of institutional settings to change and transform the people who enter them.2
7. Since then I have been studying the psychological effects of living and working in real (as opposed to simulated) institutional environments, including juvenile facilities, mainline adult prison and jail settings, and specialized correctional housing units (such as solitary and “supermax”-type confinement). In the course of that work, I have toured and inspected numerous maximum security state prisons and related facilities (in Alabama, Arkansas, Arizona, California, Colorado, Florida, Georgia, Idaho, Louisiana, Massachusetts, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah,
2 For example, see Craig Haney, Curtis Banks & Philip Zimbardo, Interpersonal Dynamics in a Simulated Prison, 1 International Journal of Criminology and Penology 69 (1973); Craig Haney & Philip Zimbardo, The Socialization into Criminality: On Becoming a Prisoner and a Guard, in Law, Justice, and the Individual in Society: Psychological and Legal Issues (J. Tapp and F. Levine, eds., 1977); and Craig Haney & Philip Zimbardo, Persistent Dispositionalism in Interactionist Clothing: Fundamental Attribution Error in Explaining Prison Abuse, Personality and Social Psychology Bulletin, 35, 807-814 (2009).

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 8 of 90
and Washington), many maximum security federal prisons (including the
Administrative Maximum or “ADX” facility in Florence, Colorado), as well
as prisons in Canada, Cuba, England, Hungary, Mexico, and Russia. I also
have conducted numerous interviews with correctional officials, guards,
and prisoners to assess the impact of penal confinement, and statistically
analyzed aggregate data from numerous correctional documents and
official records to examine the effects of specific conditions of confinement
on the quality of prison life and the ability of prisoners to adjust to them.3
8. Over the last several decades, a significant amount of my
research and writing about prison-related issues has focused on a specific
topic—the psychological effects of isolated, solitary, or “supermax”-type
confinement in which prisoners are confined to their cells more or less
continuously (typically, on average, 22 hours or more per day).4
3 For example, Craig Haney & Philip Zimbardo, The Socialization into Criminality: On Becoming a Prisoner and a Guard, in Law, Justice, and the Individual in Society: Psychological and Legal Issues (pp. 198-223) (J. Tapp and F. Levine, eds., 1977); Craig Haney, Psychology and Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law, 3 Psychology, Public Policy, and Law, 499-588 (1997); Craig Haney, The Consequences of Prison Life: Notes on the New Psychology of Prison Effects, in D. Canter & R. Zukauskiene (Eds.), Psychology and Law: Bridging the Gap (pp. 143-165). Burlington, VT: Ashgate Publishing (2008); Craig Haney, On Mitigation as CounterNarrative: A Case Study of the Hidden Context of Prison Violence, 77 University of Missouri-Kansas City Law Review 911-946 (2009); Craig Haney, Counting Casualties in the War on Prisoners, 43 University of San Francisco Law Review 87-138 (2008); Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, 48 American Criminal Law Review, 121-141 (2011) [Reprinted in: S. Ferguson (Ed.), Readings in Race, Ethnicity, Gender and Class. Sage Publications (2012)]; Craig Haney, Prison Effects in the Age of Mass Imprisonment, The Prison Journal, 92, 1-24 (2012); and Craig Haney, Prison Overcrowding, in B. Cutler & P. Zapf (Eds.), APA Handbook of Forensic Psychology (pp. 415-436). Washington, DC: APA Books (2015).
4 See: Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 National Prison Project Journal 3 (1993); Craig Haney, Mental Health Issues in LongTerm Solitary and “Supermax” Confinement, Crime & Delinquency, 49, 124-156 (2003); Craig Haney, A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons, 35 Criminal Justice and Behavior 956-984 (2008); Craig Haney, The Social Psychology

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 9 of 90
9. I have been qualified and have testified as an expert in various federal courts, including United States District Courts in Arkansas, California, Georgia, Hawaii, New Mexico, Pennsylvania, South Carolina, Texas, and Washington, and in numerous state courts, including courts in Alabama, Colorado, Florida, Montana, New Jersey, New Mexico, Ohio, Oregon, Tennessee, Utah, and Wyoming as well as, in California, the Superior Courts of Alameda, Calaveras, Kern, Los Angeles, Marin, Mariposa, Monterey, Orange, Sacramento, San Diego, San Francisco, San Mateo, Santa Clara, Santa Cruz, Shasta, Tulare, Ventura, and Yolo counties.
10. My research, writing, and testimony have been cited by state courts, including the California Supreme Court, and by Federal District Courts, Circuit Courts of Appeal, and the United States Supreme Court.5
11. A statement of compensation and a list of the cases that I have testified in as an expert at trial or by deposition during the last four years are included in an attachment to this Expert Report, as Exhibit 2.
II. BASIS OF EXPERT OPINION
12. I have requested, been provided, and reviewed a number of documents that pertain directly to Mr. Johnson’s case. They include: the
of Isolation: Why Solitary Confinement is Psychologically Harmful, Prison Service Journal, 12 (January, 2009); Craig Haney & Mona Lynch, Regulating Prisons of the Future: The Psychological Consequences of Solitary and Supermax Confinement, 23 New York University Review of Law and Social Change 477-570 (1997); and Craig Haney, Joanna Weill, Shirin Bakhshay, and Tiffany Winslow, Examining Jail Isolation: What We Don’t Know Can Be Profoundly Harmful,” 96 The Prison Journal 126-152 (2016). 5 For example, see Brown v. Plata, 131 S.Ct. 1910 (2011).

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 10 of 90
undated Complaint in Arthur Johnson v. John Wetzel et al.; two separate statements of the DOC’s administrative custody policy, Pennsylvania DOC Policy Statement on Administrative Custody Procedures (DC-ADM 802), one effective June 7, 2011, and a second effective November 19, 2013; a set of Mr. Johnson’s official, filed grievances (DC-ADM 804)
13. I also have some direct knowledge of conditions of confinement in at least some of the Pennsylvania DOC facilities, especially the isolation units (including some units that are at issue in Mr. Johnson’s case). Specifically, I toured and inspected conditions of confinement in SCI Huntingdon in the 1980s, in conjunction with a California capital case on which I served as an expert. In addition, in March, 2013, in conjunction with a federal capital case on which I served as an expert, I toured and inspected the isolation units in SCI Greene and, once again, at SCI Huntingdon
14. In addition, I interviewed Mr. Johnson at SCI Frackville on January 26, 2016.
III. SUMMARY OF EXPERT OPINIONS
15. I have been asked to summarize, generally, the extensive scientific literature that now exists on the psychological effects of solitary confinement as well as the professional, correctional, and human rights consensus that has emerged over the last decade concerning its use. In addition, I have been asked to assess both the nature and duration of Mr. Johnson’s confinement, and to address the psychological effects that he

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 11 of 90
has suffered as a result of those conditions and that duration of exposure. I have reached all of my opinions in this matter to a reasonable degree of scientific certainty, and is based upon a foundation and analytical approach well-accepted within my field of expertise. I summarize these opinions briefly in the few paragraphs that follow and in much more detail in the remainder of this Declaration.
16. The living conditions to which the Pennsylvania DOC has subjected Mr. Johnson constitute precisely the kinds of conditions of confinement that scientific theory and a sizable empirical literature have established create grave risks of serious psychological damage and harm. Although that knowledge has existed for quite some time—more than a century—it has been significantly broadened and considerably deepened in recent years. More troubling, Mr. Johnson has, in fact, suffered precisely the types of damage and harm that the scientific literature would predict.
17. As I will discuss in detail below, there is also a scientific, correctional, and human rights consensus about the painfulness and harmfulness of punitive isolation that has existed for a number of years. Here, too, that consensus has been significantly broadened and considerably deepened in recent years, especially in the last ten years.
18. The Pennsylvania DOC has subjected Mr. Johnson to extremely adverse conditions of confinement (and therefore to the psychological pain and significant risk of serious psychological harm that they are known to incur) for an almost unbelievable, unprecedented length of time. Mr. Johnson’s situation is almost unique in its severity. I have conducted research and assessed the effects of isolated confinement since the late 1970s, and I have interviewed many hundreds of persons confined in solitary and “supermax”-type confinement. I have encountered no more

Case 1:16-cv-00863-CCC Document 4-2 Filed 05/12/16 Page 12 of 90
than a handful of people in the United States who have been kept in isolation for the length of time that Mr. Johnson has endured.
19. The Pennsylvania DOC has exacerbated Mr. Johnson’s extremely long period of confinement in solitary by denying him anything more than superficial psychological monitoring and care despite clear, substantiated risks to his psychological well-being. In addition, the Pennsylvania DOC does not appear to have provided a clear explanation for why Mr. Johnson continues to be kept in isolation (despite years of conforming behavior), and has not provided Mr. Johnson with any opportunity or pathway to reduce his period of solitary confinement (i.e., he has not been told what he can do to make his suffering end). Thus, he continues to be subjected to severe psychological pain without a clear rationale or the means with which to reduce or end it.
20. Mr. Johnson is now approaching his mid-60s and has spent more than half of his life—virtually all of his adult life—living in isolation, alone in his cell. Notwithstanding his significant resiliency and past ability to withstand his harsh and deprived conditions of confinement without completely breaking down or decompensating psychologically, his agerelated psychological vulnerability has placed him in an especially precarious and dangerous state.
21. Like other prisoners whom I have interviewed who have been subjected to extremely long-term isolation, Mr. Johnson is suffering from what can be termed “social death”—having few if any meaningful social contacts from which to derive nurturing support for so many years, becoming acutely aware of the deep losses he suffered throughout this long ordeal, recognizing his withering connections to family, friends, and others, and facing his increasing inability to function as a social being. The

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many years of painful and harmful isolated confinement have taken a toll and, combined with the psychological fragility that comes from his advanced age, have exacerbated his pain and increased his risk of harm. Mr. Johnson reported to me that he can feel himself faltering and that his mental state has recently, noticeably deteriorated. He feels he has reached and clearly exceeded the limits of his considerable tolerance and resiliency.
22. Remarkably, despite Mr. Johnson’s faltering mental health, he has maintained consistently nonviolent and conforming prison behavior. Thus, other than the acts that resulted in his placement in punitive isolation many years ago, he has not engaged in any violent behavior in prison or committed any acts that were overtly disrespectful to staff for decades.
23. Whatever justification the Pennsylvania DOC may have had for placing Mr. Johnson in isolation in the distant past, his long-standing nonviolent prison record and his increasing age provide ample evidence that those justifications no longer exist. In fact, based on my experience of more than 40 years researching solitary confinement, interviewing and evaluating people held in isolation, and participating in litigation on this issue, I can perceive no current, legitimate penological justification for retaining him in punitive isolation any longer. And, against this absence of penological justification, the increasing level of risk to his psychological and physical well-being if he remains there looms even larger.
24. Finally, there can be no doubt that Mr. Johnson’s decades of solitary confinement have exacted a significant toll on his psychological well being. As a matter of sound correctional practice and as an essential psychological safeguard, Mr. Johnson’s release from isolated confinement

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should be done immediately but only in stages, ideally as part of a meaningful and thoughtfully structured “step down” program in recognition of the damage already inflicted. Mr. Johnson has been deprived of normal social contact and social interaction for three-and-ahalf decades. He will need to become gradually familiar with, and be eased back into, the norms of social life.
IV. THE SCIENTIFIC, CORRECTIONAL, AND HUMAN RIGHTS CONSENSUS CONCERNING THE ADVERSE PSYCHOLOGICAL EFFECTS OF PUNITIVE ISOLATION
25. The effects being housed in solitary or isolated confinement—especially over a long period of time—are now well understood and described in the scientific literature. There are numerous empirical studies that report “robust” findings—that is, the findings have been obtained in studies that were conducted by researchers and clinicians from diverse backgrounds and perspectives, were completed and published over a period of many decades, and are empirically very consistent.6 With remarkably few exceptions, virtually every one of these studies has documented the pain and suffering that isolated prisoners endure and the risk of psychological harm to which they are exposed.
26. In addition, the empirical conclusions are theoretically sound. That is, there are straightforward scientific explanations for the fact that long-term isolation—the absence of meaningful social contact and interaction with others— and the other severe deprivations that typically occur under conditions of isolated or solitary confinement have harmful psychological consequences. Social exclusion and isolation from others is
6 See the reviews of this literature summarized in my various publications listed supra at note 4.

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known to produce adverse psychological effects in contexts other than prison; it makes perfect theoretical sense that this experience produces similar negative outcomes in correctional settings, where the isolation is so rigidly enforced, the social opprobrium that attaches to isolated prisoners can be extreme, and the other associated deprivations are so severe. The scientific literature on isolation, as well as my own research and experience, indicate that “long-term” exposure to precisely the kinds of conditions and practices that—based on my own personal inspections, the United States Department of Justice reports on them, and Mr. Johnson’s descriptions of his conditions of confinement—clearly currently exist in the Pennsylvania DOC and to which Mr. Johnson has himself been subjected over a period of three-and-a-half decades. The significant risk of grave psychological harm is brought about whether or not the prisoners subjected to these conditions suffer from a pre-existing mental illness.
27. It should be noted, as I will discuss in more detail in several later paragraphs, that “long-term” or “prolonged” exposure to prison isolation is generally used in the literature to refer to durations of solitary confinement that are substantially briefer than the amount of time that Mr. Johnson been subjected to it in Pennsylvania. For example, the American Psychiatric Association (APA) defined “prolonged segregation” as segregation lasting for four weeks or longer (which the APA also said “should be avoided” for the seriously mentally ill).7 Thus, Mr. Johnson has been subjected to a duration of isolated confinement that far exceeds—by a substantial order of magnitude (approaching 500 times longer)—the
7 American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), available at http://www.psych.org/File%20Library/Learn/Archives/ps2012 _PrisonerSegregation.pdf

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amounts typically reported in the literature, studied by researchers, and considered psychiatrically problematic.
28. I should also point out that “solitary confinement” and “isolated confinement” are terms of art in correctional practice and scholarship. For perhaps obvious reasons, total and absolute solitary confinement—literally complete isolation from any form of human contact—does not exist in prison and never has. Instead, the term is generally used to refer to conditions of extreme (but not total) isolation from others. I have defined it elsewhere, in a way that is entirely consistent with its use in the broader correctional literature, as:
[S]egregation from the mainstream prisoner population in attached housing units or free-standing facilities where prisoners are involuntarily confined in their cells for upwards of 23 hours a day or more, given only extremely limited or no opportunities for direct and normal social contact with other persons (i.e., contact that is not mediated by bars, restraints, security glass or screens, and the like), and afforded extremely limited if any access to meaningful programming of any kind.8 29. This definition is similar to the one employed by the National Institute of Corrections (NIC), as cited by Chase Riveland in a standard reference work on solitary-type confinement that was sponsored and disseminated by the United States Department of Justice. Riveland noted that the NIC itself had defined solitary or “supermax” housing as occurring in a “freestanding facility, or a distinct unit within a freestanding facility, that provides for the management and secure control of inmates” under conditions characterized by “separation, restricted movement, and limited
8 Haney, The Social Psychology of Isolation, supra note 4, at footnote 1.

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access to staff and other inmates.”9 More recently, the Department of
Justice employed a similar definition, noting that “the terms ‘isolation’ or
‘solitary confinement’ mean the state of being confined to one’s cell for
approximately 22 hours per day or more, alone or with other prisoners,
that limits contact with others… An isolation unit means a unit where all
or most of those housed in the unit are subjected to isolation.”10
A. Scientific Research on the Painful and Harmful Effects of Isolated Confinement
30. In the admitted absence of a single “perfect” study of the
phenomenon,11 there is a substantial body of published literature that
clearly documents the distinctive patterns of psychological harm that can
9 Chase Riveland, Supermax Prisons: Overview and General Considerations. National Institute of Corrections. Washington DC: United States Department of Justice (1999), at p. 3, available at http://static.nicic.gov/Library/014937.pdf
10 United States Department of Justice, Letter to the Honorable Tom Corbett, Re: Investigation of the State Correctional Institution at Cresson and Notice of Expanded Investigation, May 31, 2013, at p. 5 (emphasis in original), available at http://www.justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf, citing also to Wilkinson v. Austin, 545 U.S. 209, 214, 224 (2005), where the United States Supreme Court described solitary confinement as limiting human contact for 23 hours per day; and Tillery v. Owens, 907 F.2d 418, 422 (3d Cir. 1990), where the Third Circuit described it as limiting contact for 21 to 22 hours per day.
11 No more than basic knowledge of research methodology is required to design the “perfect” study of the effects of solitary confinement: dividing a representative sample of prisoners (who had never been in solitary confinement) into two groups by randomly assigning half to either a treatment condition (say, two or more years in solitary confinement) or a control condition (the same length of time residing in a typical prison housing unit), and conducting longitudinal assessments of both groups (i.e., before, during, and after their experiences), by impartial researchers skilled at gaining the trust of prisoners (including ones perceived by the prisoner-participants as having absolutely no connection to the prison administration). Unfortunately, no more than basic knowledge of the realities of prison life and the practicalities of conducting research in prisons is required to understand why such a study would be impossible to ever conduct. Moreover, any prison system that allowed truly independent, experienced researchers to perform even a reasonable approximation of such a study would be, almost by definition, so atypical as to call the generalizability of the results into question. Keep in mind also that the assessment process itself—depending on who carried it out, how often it was done, and in what manner—might well provide the solitary confinement participants with more meaningful social contact than they are currently afforded in a number of such units with which I am familiar, thereby significantly changing (and improving) the conditions of their confinement.

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and do occur when persons are placed in solitary confinement. These broad patterns have been consistently identified in personal accounts written by persons confined in isolation, in descriptive studies authored by mental health professionals who worked in many such places, and in systematic research conducted on the nature and effects of solitary or “supermax” confinement. The studies have now spanned a period of over four decades, and were conducted in locations across several continents by researchers with different professional expertise, ranging from psychiatrists to sociologists and architects.
31. Even prisoners in “isolated confinement” who are “doublecelled” (i.e., housed with another prisoner) may nonetheless suffer many of the negative psychological effects that are described in the paragraphs below. In fact, in some ways, prisoners who are double-celled in an isolation unit have the worst of both worlds: they are “crowded” in and confined with another person inside a small cell but—and this is the crux of their “isolation”—simultaneously isolated from the rest of the mainstream prisoner population, deprived of even minimal freedom of movement, prohibited from access to meaningful prison programs, and denied opportunities for any semblance of “normal” social interaction.12
32. As I noted in passing above, researchers and practitioners know that meaningful social interactions and social connectedness can have a positive effect on people’s physical and mental health and, conversely, that social isolation in general is potentially very harmful and
12 This is especially problematic if prisoners are involuntarily double-celled, have little or no choice over the identity of the person with whom they are double-celled, and have no practical or feasible means of changing cellmates if they become incompatible. Even under the best of circumstances, however, double-celling under conditions of otherwise isolated confinement may be difficult for prisoners to accommodate to.

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can undermine health and psychological well-being.12 Not surprisingly,
there is now a reasonably large and growing literature on the significant
risk that solitary or so-called “supermax” confinement poses for the
mental health of prisoners. The long-term absence of meaningful human
contact and social interaction, the enforced idleness and inactivity, and the
oppressive security and surveillance procedures, and the accompanying
hardware and other paraphernalia that are brought or built into these
units combine to create harsh, dehumanizing, and deprived conditions of
confinement. These conditions predictably can impair the psychological
functioning of the prisoners who are subjected to them.13 For some
prisoners, these impairments can be permanent and life-threatening.
33. In the admitted absence of a single “perfect” study of the
phenomenon,14 there is a substantial body of published literature that
12 For example, see: Brock Bastian & Nick Haslam, Excluded from Humanity: The Dehumanizing Effects of Social Ostracism, Journal of Experimental Social Psychology, 46, 107-113 (2010); Stephanie Cacioppo & John Cacioppo, Decoding the Invisible Forces of Social Connections, Frontiers in Integrative Neuroscience, 6, 51 (2012); DeWall, et al., Belongingness as a Core Personality Trait: How Social Exclusion Influences Social Functioning and Personality Expression, Journal of Personality, 79, 979-1012 (2011); Damiano Fiorillo & Fabio Sabatini, Quality and Quantity: The Role of Social Interactions in Self-Reported Individual Health, Social Science & Medicine, 73, 1644-1652 (2011); S. Hafner et al., Association Between Social Isolation and Inflammatory Markers in Depressed and Non-depressed Individuals: Results from the MONICA/KORA Study, Brain, Behavior, and Immunity, 25, 1701-1707 (2011); Johan Karremans, et al., Secure Attachment Partners Attenuate Neural Responses to Social Exclusion: An fMRI Investigation, International Journal of Psychophysiology, 81, 44-50 (2011); Graham Thornicroft, Social Deprivation and Rates of Treated Mental Disorder: Developing Statistical Models to Predict Psychiatric Service Utilisation, British Journal of Psychiatry, 158, 475-484 (1991).
13 For example, see: Kristin Cloyes, David Lovell, David Allen & Lorna Rhodes, Assessment of Psychosocial Impairment in a Supermaximum Security Unit Sample, Criminal Justice and Behavior, 33, 760-781 (2006); Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, supra note 4; and Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (pp. 441-528). Volume 34. Chicago: University of Chicago Press (2006).
14 No more than basic knowledge of research methodology is required to design the “perfect” study of the effects of solitary confinement: dividing a representative sample of prisoners (who had never been in solitary confinement) into two groups by randomly

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clearly documents the distinctive patterns of psychological harm that can
and do occur when persons are placed in solitary confinement. These
broad patterns have been consistently identified in personal accounts
written by persons confined in isolation, in descriptive studies authored by
mental health professionals who worked in many such places, and in
systematic research conducted on the nature and effects of solitary or
“supermax” confinement. The studies have now spanned a period of over
four decades, and were conducted in locations across several continents by
researchers with different professional expertise, ranging from
psychiatrists to sociologists and architects.15
34. For example, mental health and correctional staff who have
worked in disciplinary segregation and isolation units have reported
observing a range of problematic symptoms manifested by the prisoners
confined in these places. The authors of one of the early studies of solitary
assigning half to either a treatment condition (say, two or more years in solitary confinement) or a control condition (the same length of time residing in a typical prison housing unit), and conducting longitudinal assessments of both groups (i.e., before, during, and after their experiences), by impartial researchers skilled at gaining the trust of prisoners (including ones perceived by the prisoner-participants as having absolutely no connection to the prison administration). Unfortunately, no more than basic knowledge of the realities of prison life and the practicalities of conducting research in prisons is required to understand why such a study would be impossible to ever conduct. Moreover, any prison system that allowed truly independent, experienced researchers to perform even a reasonable approximation of such a study would be, almost by definition, so atypical as to call the generalizability of the results into question. Keep in mind also that the assessment process itself—depending on who carried it out, how often it was done, and in what manner—might well provide the solitary confinement participants with more meaningful social contact than they are currently afforded in a number of such units with which I am familiar, thereby significantly changing (and improving) the conditions of their confinement.
15 For example, in addition to the literature reviews contained in my own published writing on these issues, cited supra at note 4, see: Arrigo, B., & Bullock, J., The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units: Reviewing What We Know and What Should Change, International Journal of Offender Therapy and Comparative Criminology, 52, 622-640 (2008); and Smith, The Effects of Solitary Confinement on Prison Inmates, supra note 14. My own work on these issues builds on the work of those other researchers and my findings and conclusions are consistent with and corroborative of them.

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confinement summarized their findings by concluding that “[e]xcessive deprivation of liberty, here defined as near complete confinement to the cell, results in deep emotional disturbances.”16
35. A decade later, Professor Hans Toch’s large-scale psychological study of prisoners “in crisis” in New York State correctional facilities included important observations about the effects of isolation.17 After he and his colleagues had conducted numerous in-depth interviews of prisoners, Toch concluded that “isolation panic” was a serious problem in solitary confinement. The symptoms that Toch reported included rage, panic, loss of control and breakdowns, psychological regression, a build-up of physiological and psychic tension that led to incidents of selfmutilation.18 Professor Toch noted that although isolation panic could occur under other conditions of confinement it was “most sharply prevalent in segregation.” Moreover, it marked an important dichotomy for prisoners: the “distinction between imprisonment, which is tolerable, and isolation, which is not.”19
36. More recent studies have identified other symptoms that appear to be produced by these conditions. Those symptoms include:
16 Bruno M. Cormier & Paul J. Williams, Excessive Deprivation of Liberty, Canadian Psychiatric Association Journal, 11, 470-484 (1966), at p. 484. For other early studies of solitary confinement, see: Paul Gendreau, N. Freedman, G. Wilde, & George Scott, Changes in EEG Alpha Frequency and Evoked Response Latency During Solitary Confinement, Journal of Abnormal Psychology, 79, 54-59 (1972); George Scott & Paul Gendreau, Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison, Canadian Psychiatric Association Journal, 12, 337-341 (1969); Richard H. Walters, John E. Callagan & Albert F. Newman, Effect of Solitary Confinement on Prisoners, American Journal of Psychiatry, 119, 771-773 (1963). 17 Hans Toch, Men in Crisis: Human Breakdowns in Prisons. Aldine Publishing Co.: Chicago (1975). 18 Id. at 54. 19 Ibid.

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appetite and sleep disturbances, anxiety, panic, rage, loss of control,
paranoia, hallucinations, and self-mutilations. Moreover, direct studies of
prison isolation have documented an extremely broad range of harmful
psychological reactions. These effects include increases in the following
potentially damaging symptoms and problematic behaviors: anxiety,
withdrawal, hypersensitivity, ruminations, cognitive dysfunction,
hallucinations, loss of control, irritability, aggression, rage, paranoia,
hopelessness, a sense of impending emotional breakdown, self-mutilation,
and suicidal ideation and behavior.20
20 In addition to the numerous studies cited in the articles referenced supra at notes 4 and 11, there is a significant international literature on the adverse effects of solitary confinement. For example, see: Henri N. Barte, L’Isolement Carceral, Perspectives Psychiatriques, 28, 252 (1989). Barte analyzed what he called the “psychopathogenic” effects of solitary confinement in French prisons and concluded that prisoners placed there for extended periods of time could become schizophrenic instead of receptive to social rehabilitation. He argued that the practice was unjustifiable, counterproductive, and “a denial of the bonds that unite humankind.” In addition, see: Reto Volkart, Einzelhaft: Eine Literaturubersicht (Solitary confinement: A literature survey), Psychologie -Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen, 42, 1-24 (1983) (reviewing the empirical and theoretical literature on the negative effects of solitary confinement); Reto Volkart, Adolf Dittrich, Thomas Rothenfluh, & Paul Werner, Eine Kontrollierte Untersuchung uber Psychopathologische Effekte der Einzelhaft (A controlled investigation on psychopathological effects of solitary confinement), Psychologie - Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen, 42, 2546 (1983) (when prisoners in “normal” conditions of confinement were compared to those in solitary confinement, the latter were found to display considerably more psychopathological symptoms that included heightened feelings of anxiety, emotional hypersensitivity, ideas of persecution, and thought disorders); Reto Volkart, et al., Einzelhaft als Risikofaktor fur Psychiatrische Hospitalisierung (Solitary confinement as a risk for psychiatric hospitalization), Psychiatria Clinica, 16, 365-377 (1983) (finding that prisoners who were hospitalized in a psychiatric clinic included a disproportionate number who had been kept in solitary confinement); Boguslaw Waligora, Funkcjonowanie Czlowieka W Warunkach Izolacji Wieziennej (How men function in conditions of penitentiary isolation), Seria Psychologia I Pedagogika NR 34, Poland (1974) (concluding that so-called “pejorative isolation” of the sort that occurs in prison strengthens “the asocial features in the criminal’s personality thus becoming an essential cause of difficulties and failures in the process of his resocialization”). See, also, Ida Koch, Mental and Social Sequelae of Isolation: The Evidence of Deprivation Experiments and of Pretrial Detention in Denmark, in The Expansion of European Prison Systems, Working Papers in European Criminology, No. 7, 119 (Bill Rolston & Mike Tomlinson eds. 1986) who found evidence of “acute isolation syndrome” among detainees that occurred after only a few days in isolation and included “problems of concentration, restlessness, failure of memory, sleeping problems and impaired sense of time an ability to follow the rhythm of day and night” (at p. 124). If the isolated confinement persisted—“a few weeks” or more—there was the possibility that detainees would develop “chronic isolation

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37. In addition, a number of correlational studies have been done examining the relationship between housing type and various kinds of incident reports in prison. They show that self-mutilation and suicide are more prevalent in isolated, punitive housing units such as administrative segregation and security housing or SHU, where prisoners are subjected to solitary-like conditions of confinement. For example, clinical researchers Ray Patterson and Kerry Hughes attributed higher suicide rates in solitary confinement-type units to the heightened levels of “environmental stress” that are generated by the “isolation, punitive sanctions, [and] severely restricted living conditions” that exist there.21 These authors reported that “the conditions of deprivation in locked units and higher-security housing were a common stressor shared by many of the prisoners who committed suicide.”22 Similarly, a team of researchers in New York recently reported that “[i]nmates punished by solitary confinement were approximately 6.9 times as likely to commit acts of selfharm after we controlled for the length of jail stay, SMI [whether the
syndrome,” including intensified difficulties with memory and concentration, “inexplicable fatigue,” a “distinct emotional lability” that can include “fits of rage,” hallucinations, and the “extremely common” belief among isolated prisoners that “they have gone or are going mad” (at p. 125). See, also: Michael Bauer, Stefan Priebe, Bettina Haring & Kerstin Adamczak, Long-Term Mental Sequelae of Political Imprisonment in East Germany, Journal of Nervous & Mental Disease, 181, 257-262 (1993), who reported on the serious and persistent psychiatric symptoms suffered by a group of former East German political prisoners who sought mental health treatment upon release and whose adverse conditions of confinement had included punitive isolation.
21 Raymond Patterson & Kerry Hughes, Review of Completed Suicides in the California Department of Corrections and Rehabilitation, 1999-2004, Psychiatric Services, 59, 676682 (2008), at p. 678.
22 Ibid. See also: Lindsay M. Hayes, National Study of Jail Suicides: Seven Years Later. Special Issue: Jail Suicide: A Comprehensive Approach to a Continuing National Problem, Psychiatric Quarterly, 60, 7 (1989); Alison Liebling, Vulnerability and Prison Suicide, British Journal of Criminology, 36, 173-187 (1995); and Alison Liebling, Prison Suicide and Prisoner Coping, Crime and Justice, 26, 283-359 (1999).

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inmate was seriously mentally ill], age, and race/ethnicity.”23 In addition, signs of deteriorating mental and physical health (beyond self-injury), other-directed violence, such as stabbings, attacks on staff, and property destruction, and collective violence are also more prevalent in these units.24
38. The empirical consensus on the harmfulness of isolated or solitary-type confinement is very broad. I say that despite the fact that there is one study that has been cited for a different conclusion. The socalled “Colorado Study” of one year in “administrative segregation,” is sometimes referenced as evidence that isolated confinement does not pose a significant risk to the psychological well-being of inmates. In addition to the fact that the Colorado Study focused on one year in administrative segregation, as opposed to the core issue in the present case—the effects of severe isolation for more than three-and-a-half decades—there are several other reasons why the Colorado Study is a singularly inappropriate study on which to rely. They establish the fact that this study should not serve as the basis for minimizing or ignoring the grave risk of “psychological
23 Fatos Kaba, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, American Journal of Public Health, 104, 442-447 (2014), at p. 445. 24 For example, see: Howard Bidna, Effects of Increased Security on Prison Violence, Journal of Criminal Justice, 3, 33-46 (1975); K. Anthony Edwards, Some Characteristics of Prisoners Transferred from Prison to a State Mental Hospital, Behavioral Sciences and the Law, 6, 131-137 (1988); Elmer H. Johnson, Felon Self-Mutilation: Correlate of Stress in Prison, in Bruce L. Danto (Ed.) Jail House Blues. Michigan: Epic Publications (1973); Anne Jones, Self-Mutilation in Prison: A Comparison of Mutilators and Nonmutilators, Criminal Justice and Behavior, 13, 286-296 (1986); Peter Kratcoski, The Implications of Research Explaining Prison Violence and Disruption, Federal Probation, 52, 27-32 (1988); Ernest Otto Moore, A Prison Environment: Its Effect on Health Care Utilization, Dissertation Abstracts, Ann Arbor, Michigan (1980); Frank Porporino, Managing Violent Individuals in Correctional Settings, Journal of Interpersonal Violence, 1, 213-237 (1986); and Pamela Steinke, Using Situational Factors to Predict Types of Prison Violence, 17 Journal of Offender Rehabilitation, 17, 119-132 (1991).

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damage to inmates” that occurs in isolation units like those at issue in Mr.
Johnson’s case.
39. For one, the Colorado Study has been roundly criticized by a
number of researchers from a variety of disciplines (psychology,
psychiatry, anthropology, history, and law) as deeply flawed in its
methodology. Many of these experts have published critiques of the study
in which they conclude that its methodological problems are so severe as
to render the results uninterpretable.25
40. These and other kinds of methodological problems led well-
known prison researchers David Lovell and Hans Toch to note in their
critique of the study that “[d]espite the volume of the data, no systematic
interpretation of the findings is possible.”26 Many other published
criticisms of the study’s methodology reached similar conclusions.27
25 The serious methodological problems include: the inappropriate exposure of all groups to the key treatment variable (isolation); the continued cross-contamination of the general population and administrative segregation groups throughout the study (confounding the interpretation of any differences or similarities between them); the use of a convenience and patchwork sample rather than a representative group of participants; the failure to record (and, therefore, the inability to quantify or code) the exact nature of the conditions of confinement (especially, the amount or degree of isolation) to which each participant or group of participants was exposed; employing a single, inexperienced research assistant with only a bachelor’s degree (who wore a badge identifying her to the prisoners as a department of corrections employee) to collect all of the study data; problematic instances in which the research assistant questioned the truthfulness of the prisoners’ responses and required them to “redo” the tests being administered; the total reliance on self-reported rating scales that were created through the disaggregation and reconstruction/recombination of subscales taken from other test batteries that had not been validated with prisoner populations; and the failure to utilize even a basic interview with the study participants or to make use of the behavioral observational data that were collected (that appeared at odds with the prisoner self reports).
26 David Lovell & Hans Toch, Some Observations about the Colorado Segregation Study, Correctional Mental Health Report, May/June 2011, 3-4, 14.
27 For example, see: Stuart Grassian & Terry Kupers, The Colorado Study Versus the Reality of Supermax Confinement, Correctional Mental Health Report, May/June 2011, 1-4; Lorna A. Rhodes & David Lovell, Is Adaptation the Right Question? Addressing the Larger Context of Administrative Segregation: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, Corrections & Mental Health, June 21, 2011, 1-9, available at http://community.nicic.gov/cfs-

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41. In addition, two of the study’s other authors, Jeffrey Metzner
and Jamie Fellner, have published an article concluding that “[i]solation
can be harmful to any prisoner,” that the potentially adverse effects of
isolation include “anxiety, depression, anger, cognitive disturbances,
perceptual distortions, obsessive thoughts, paranoia, and psychosis.”28 In
fact, their deep concerns over the harmfulness of isolated conditions of
confinement led them to recommend that professional organizations
“should actively support practitioners who work for changed segregation
policies and they should use their institutional authority to press for a
nationwide rethinking of the use of isolation” in the name of their
“commitment to ethics and human rights.”29
file.ashx/__key/CommunityServer.Components.PostAttachments/00.00.05.95.19/Super max-_2D00_-T-_2D00_-Rhodes-and-Lovell.pdf; Sharon Shalev & Monica Lloyd, If This Be Method, Yet There Is Madness in It: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, Corrections & Mental Health, June 21, 2011, 1-7, available at http://community.nicic.gov/cfsfile.ashx/__key/CommunityServer.Components.PostAttachments/00.00.05.95.21/Super max-_2D00_-T-_2D00_-Shalev-and-Lloyd.pdf; and Peter Scharff Smith, The Effects of Solitary Confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, Corrections & Mental Health, June 21, 2011, 1-11, available at http://community.nicic.gov/cfsfile.ashx/__key/CommunityServer.Components.PostAttachments/00.00.05.95.22/Supe rmax-_2D00_-T-_2D00_-Smith.pdf.
28 Jeffrey Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, Journal of the Academy of Psychiatry and Law, 38, 104-108 (2010), at p. 104, available at http://www.hrw.org/sites/default/files/related_material/Solitary%20Confinement%20a nd%20Mental%20Illness%20in%20US%20Prisons.pdf.
29 Id. at p. 107. In addition to the serious methodological flaws that have been identified in the Colorado Study, and the positions that virtually all of its authors have taken acknowledging the harmful effects of isolation and opposing its use with mentally ill prisoners in particular, the Colorado Department of Corrections itself has moved over the last several years to both very significantly reduce the overall number of prisoners who are housed in isolation units (again, termed “administrative segregation” there). Memo to Wardens from Lou Archuleta, Interim Director of Prisons, Colorado DOC, December 10, 2013. See, also: Jennifer Brown, Colorado Stops Putting Mentally Ill Prisoners in Solitary Confinement, Denver Post, Dec. 12, 2013, available at http://www.denverpost.com/news/ci_24712664/colorado-wont-put-mentally-illprisoners-solitary-confinement.

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42. The study’s numerous and serious methodological flaws notwithstanding, the authors of the Colorado Study have themselves repeatedly taken public positions that explicitly acknowledge the potentially harmful effects of prolonged prison isolation; most of them have published articles, forwarded recommendations, and drafted position papers in favor of limiting the use of isolation altogether and, among other things, against housing mentally ill prisoners inside these kinds of units.
43. For example, Maureen O’Keefe, a researcher for the Colorado Department of Corrections and the primary author of the study, is on record as favoring significant reductions in the use of prison isolation (or “administrative segregation” as it is known in Colorado). She is also very clear about what she termed a misuse or misinterpretation of the study’s results: “[W]e do not believe in any way and we do not promote the study as something to argue for the case of segregation… My interpretation is that people believe that this study sanctions administrative segregation for mentally ill and nonmentally ill alike… I do not believe that the conclusions lend to that and that is not the intended use of our study.30
44. Indeed, the painfulness and damaging potential of solitary confinement is underscored by the fact that it is commonly used in socalled “brainwashing” and certain forms of torture. In fact, many of the negative effects of solitary confinement are analogous to the acute reactions suffered by torture and trauma victims, including post-traumatic stress disorder (“PTSD”) and the kind of psychiatric sequelae that plague
30 Deposition of Maureen O’Keefe at 96, 101 (Oct. 25, 2013), Sardakowski v. Clements, No. 1:2012cv01326 (D. Colo. filed May 21, 2012) (Civil Action No. 12-CV-01326-RBJKLM).

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victims of what are called “deprivation and constraint” torture techniques.31
45. The prevalence of psychological symptoms (that is, the
percentage of prisoners who are placed in these units who suffer from
these and related signs of psychological distress) is often very high. For
example, in an early study that I conducted at the Security Housing Unit
(SHU) at Pelican Bay State Prison in California, I did systematic
assessments of a randomly selected sample of 100 prisoners who were
housed there. The sample was randomly selected to ensure that it
consisted of a representative group of SHU prisoners. The
representativeness of the sample allowed me to estimate the prevalence of
psychological trauma and isolation-related pathology among the
population of PBSHU prisoners. In fact, I found that every symptom of
psychological distress that I measured but one (fainting spells) was suffered by more than half of the prisoners who were interviewed.32 Many
of the symptoms were reported by two-thirds or more of the prisoners
assessed in this isolated housing unit, and some were suffered by nearly
31 Solitary confinement is among the most frequently used psychological torture techniques. In D. Foster, Detention & Torture in South Africa: Psychological, Legal & Historical Studies, Cape Town: David Philip (1987), Psychologist Foster listed solitary confinement among the most common “psychological procedures” used to torture South African detainees (at p. 69), and concluded that “[g]iven the full context of dependency, helplessness and social isolation common to conditions of South African security law detention, there can be little doubt that solitary confinement under these circumstances should in itself be regarded as a form of torture” (at p. 136). See also: Matthew Lippman, The Development and Drafting of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 27 Boston College International & Comparative Law Review, 27, 275 (1994); Tim Shallice, Solitary Confinement—A Torture Revived? New Scientist, November 28, 1974; F.E. Somnier & I.K. Genefke, Psychotherapy for Victims of Torture, British Journal of Psychiatry, 149, 323-329 (1986); and Shaun R. Whittaker, Counseling Torture Victims, The Counseling Psychologist, 16, 272-278 (1988).
32 See Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement supra note 4.

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everyone. Well over half of the prisoners who were isolated in the Pelican Bay SHU reported a constellation of symptoms—headaches, trembling, sweaty palms, and heart palpitations—that are known to be stress-related.
46. I also found that almost all of the prisoners whom I evaluated in the SHU reported ruminations or intrusive thoughts, an oversensitivity to external stimuli, irrational anger and irritability, difficulties with attention and often with memory, and a tendency to socially withdraw. Almost as many prisoners reported a constellation of symptoms indicative of mood or emotional disorders—concerns over emotional flatness or losing the ability to feel, swings in emotional responding, and feelings of depression or sadness that did not go away. Finally, sizable minorities of the prisoners reported symptoms that are typically only associated with more extreme forms of psychopathology— hallucinations, perceptual distortions, and thoughts of suicide.
47. Although these specific symptoms of psychological stress and the psychopathological reactions to isolation are numerous and welldocumented, and provide important indices of the risk of harm to which isolated prisoners are subjected, there are other significant aspects to the psychological pain and dysfunction that solitary confinement can produce, ones that extend beyond these specific and more easily measured symptoms and reactions. Depriving people of normal social contact and meaningful social interaction over long periods of time can damage or distort their social identities, destabilize their sense of self and, for some, destroy their ability to function normally in free society.
48. Psychological science has long recognized the critical role of social contact in establishing and maintaining emotional health and wellbeing. As one researcher put it: “Since its inception, the field of psychology

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emphasized the importance of social connections.”33 For example, the
importance of “affiliation”—the opportunity to have meaningful contact
with others—in reducing anxiety in the face of uncertain or fear-arousing
stimuli is long established in social psychological literature.34 In addition,
one of the ways that people determine the appropriateness of their
feelings—indeed, how we establish the very nature and tenor of our
emotions—is through contact with others.35 Prolonged social deprivation
is painful and destabilizing in part because it deprives persons of the
opportunity to ground their thoughts and emotions in a meaningful social
context—to know what they feel and whether those feelings are
appropriate.
49. Since this early research was conducted on the importance of
affiliation, numerous scientific studies have established the psychological
significance of social contact, connectedness and belongingness. They have
concluded, among other things, that the human brain is literally “wired to
connect” to others.36 Thwarting this “need to connect” not only
33 DeWall, C., Looking Back and Forward: Lessons Learned and Moving Forward, in C. DeWall (Ed.), The Oxford Handbook of Social Exclusion (pp. 301-303). New York: Oxford University Press (2013), at p. 301.
34 For example, see: Stanley Schachter, The Psychology of Affiliation: Experimental Studies of the Sources of Gregariousness. Stanford, CA: Stanford University Press (1959); Irving Sarnoff & Philip Zimbardo, Anxiety, Fear, and Social Affiliation, Journal of Abnormal Social Psychology, 62, 356-363 (1961); Philip Zimbardo & Robert Formica, Emotional Comparison and Self-Esteem as Determinants of Affiliation, Journal of Personality, 31, 141-162 (1963).
35 For example, see: A. Fischer, A. Manstead, & R. Zaalberg, Social Influences on the Emotion Process, in M. Hewstone & W. Stroebe (Eds.), European Review of Social Psychology (pp. 171-202). Volume 14. Wiley Press (2004); C. Saarni, The Development of Emotional Competence. New York: Guilford Press (1999); Stanley Schachter & Jerome Singer, Cognitive, Social, and Physiological Determinants of Emotional State, Psychological Review, 69, 379-399 (1962); L. Tiedens & C. Leach (Eds.), The Social Life of Emotions. New York: Cambridge University Press (2004); and S. Truax, Determinants of Emotion Attributions: A Unifying View, Motivation and Emotion, 8, 33-54 (1984).
36 Lieberman, M., Social: Why Our Brains Are Wired to Connect. New York: Random House (2013).

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undermines psychological well-being but increases physical morbidity and mortality.
50. Indeed, in part out of recognition of the importance of the human need for social contact, connection, and belongingness, social psychologists and others have written extensively about the harmful effects of its deprivation—what happens when people are subjected to social exclusion and isolation. Years ago, Herbert Kelman argued that denying persons of contact with others was a form of dehumanization.37 More recently, others have documented the ways in which social exclusion is not only “painful in itself,” but also “undermines people’s sense of belonging, control, self-esteem, and meaningfulness, reduces pro-social behavior, and impairs self-regulation.”38 Indeed, the subjective experience of social exclusion results in what have been called “cognitive deconstructive states” in which there is emotional numbing, reduced empathy, cognitive inflexibility, lethargy, and an absence of meaningful thought.39
51. In fact, the editor of an authoritative Oxford Handbook of Social Exclusion concluded the volume by summarizing the “serious threat” that social exclusion represents to psychological health and wellbeing, including “increased salivary cortisol levels… and blood flow to brain regions associated with physical pain,” “sweeping changes” in
37 Kelman, H., Violence Without Restraint: Reflections on the Dehumanization of Victims and Victimizers. In G. Kren & L. Rappaport (Eds.), Varieties of Psychohistory (pp. 282314). New York: Springer (1976). 38 Bastian & Haslam, supra note 17, at p. 107, internal references omitted. 39 Twenge, J., Catanese, K., & Baumeister, R. (2003). Social Exclusion and the Deconstructed State: Time Perception, Meaninglessness, Lethargy, Lack of Emotion, and Self Awareness. Journal of Personality and Social Psychology, 85, 409-423 (2003).

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attention, memory, thinking, and self-regulation, as well as changes in aggression and prosocial behavior. As he put it: “This dizzying array of responses to social exclusion supports the premise that it strikes at the core of well-being.”40
52. In a broader sense, the social deprivation and social exclusion imposed by solitary confinement engenders social pathology— necessary adaptations that prisoners must make to live in an environment that is devoid of normal social contact—that is, to exist and function in the absence of meaningful interaction and closeness with others. In this socially pathological environment, prisoners have no choice but to adapt in socially pathological ways. Over time, they gradually change their patterns of thinking, acting and feeling to cope with the profoundly asocial world in which they are forced to live, accommodating to the absence of social support and the routine feedback that comes from normal, meaningful social contact.
53. There are several problematic features to the social pathologies that isolated prisoners are forced to adopt. The first is that, although these adaptations are functional—even necessary—under the isolated conditions in which they live, the fact that prisoners eventually “adjust” to the absence of others does not mean that the experience ceases to be painful. Some prisoners have told me that the absence of meaningful contact and the loss of closeness with others are akin to a dull ache or pain that never goes away. Others remain acutely aware of the relationships that have ended and the feelings that can never be rekindled.
54. Second, some prisoners cope with the painful, asocial nature of their isolated existence by paradoxically creating even more distance
40 DeWall, supra note 34, at p. 302.

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between themselves and others. For some, the absence of others becomes so painful that they convince themselves that they do not need social contact of any kind—that people are a “nuisance,” after all, and the less contact they have the better. As a result, they socially withdraw further from the world around them, receding even more deeply into themselves than the sheer physical isolation of solitary confinement and its attendant procedures require. Others move from initially being starved for social contact to eventually being disoriented and even frightened by it. As they become increasingly unfamiliar and uncomfortable with social interaction, they are further alienated from others and made anxious in their presence.41
55. Third, and finally, while these social pathological adaptations are functional and even necessary in the short-term, over time they tend to be internalized and persist long after the prisoner’s time in isolation has ended. Thus, the adaptations move from being consciously employed survival strategies or noticeable reactions to immediate conditions of confinement to becoming more deeply ingrained ways of being. Prisoners may develop extreme habits, tendencies, perspectives, and beliefs that are difficult or impossible to relinquish once they are released. Although their adaptations may have been functional in isolation (or appeared to be so), they are typically acutely dysfunctional in the social world most prisoners are expected to re-enter. In extreme cases, these ways of being are not only dysfunctional but have been internalized so deeply that they become
41 For evidence that solitary confinement may lead to a withdrawal from social contact or an increased tendency to find the presence of people increasingly aversive or anxiety arousing, see: Cormier, B., & Williams, supra note 17; Haney, supra note 4; H. Miller & G. Young, Prison Segregation: Administrative Detention Remedy or Mental Health Problem?, Criminal Behaviour and Mental Health, 7, 85-94 (1997); Scott & Gendreau, supra note 21; Toch, supra note 18; and Waligora, supra note 21.

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disabling, interfering with the capacity to live a remotely normal or fulfilling social life. These individuals do not present an increased security risk due to these adverse symptoms of long-term solitary confinement. In fact, I do not believe that Mr. Johnson presents any such security risk. Persons who have been held in long-term solitary confinement are capable of abiding by the rules and regulations of the institution when released to the general prison population. However, their experience in long-term isolation can make their adjustment to general population painful and challenging, especially if the prison administration does not meaningfully assist them in re-socialization.
56. It is also important to note that, although social deprivation is the source of the greatest psychological pain that prisoners experience in solitary confinement, and places them at the greatest risk of harm, prison isolation units deprive prisoners of many other things as well. Solitary confinement typically includes high levels of repressive control, enforced idleness, reduced environmental stimulation, and physical or material deprivations that also produce psychological distress and can exacerbate the negative consequences of social deprivation. Indeed, most of the things that we know are beneficial to prisoners—such as increased participation in institutional programming, contact visits with persons from outside the prison, opportunities for meaningful physical exercise or recreation, and so on42—are either functionally denied or greatly restricted for prisoners who are housed in isolation units. Thus, in addition to the social pathology that is created by the experience of solitary confinement, these other stressors also can produce additional negative psychological effects.
42 J. Wooldredge, Inmate Experiences and Psychological Well-Being, Criminal Justice and Behavior, 26, 235-250 (1999).

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57. For example, we know that people in general require a certain level of mental and physical activity in order to remain mentally and physically healthy. Simply put, human beings need movement and exercise to maintain normal functioning. The severe restrictions that are imposed in isolation units—typically no more than an hour or so a day out of their cells—can negatively impact prisoners’ well-being. Denying prisoners access to normal and necessary human activity places them at risk of psychological harm.
58. Similarly, apart from the profound social, mental and physical deprivations that solitary confinement can produce, prisoners housed in these units experience prolonged periods of monotony and idleness. Many of them experience a form of sensory deprivation or “reduced environmental stimulation” —there is an unvarying sameness to the physical stimuli that surround them. These prisoners exist within the same limited spaces and are subjected to the same repetitive routines, day in and day out. There is little or no external variation to the experiences they are permitted to have or can create for themselves. They not only see and experience the same extremely limited physical environment, but also have minimal, routinized, and superficial contacts with the same very small group of people, again and again, for years on end. This loss of perceptual and cognitive or mental stimulation may result in the atrophy of important skills and capacities.43
43 For examples of this range of symptoms, see: Brodsky & Scogin, Inmates in Protective Custody: First Data on Emotional Effects, Forensic Reports, 1, 267-280 (1988); Grassian, S., Psychopathological Effects of Solitary Confinement, American Journal of

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59. In addition, conditions of solitary confinement in most prison isolation units deprive prisoners of the opportunity to give and receive caring human touch. This is certainly true of the Pennsylvania isolation units in which Arthur Johnson has been housed, where contact visits are absolutely prohibited. This means that he has gone for decades without ever touching another person with affection. Yet, psychologists have long known that: “Touch is central to human social life. It is the most developed sensory modality at birth, and it contributes to cognitive, brain, and socioemotional development and childhood.”44 The need for caring human touch is so fundamental that early deprivation is a risk factor for neurodevelopmental disorders, depression, suicidality, and other self destructive behavior.45 Later deprivation is associated with violent behavior in adolescents.46 Recent theory and research now indicate that “touch is a primary platform for the development of secure attachments and cooperative relationships,” is “intimately involved in patterns of caregiving,” is a “powerful means by which individuals reduce the
Psychiatry, 140, 1450-54 (1983); Haney, supra note 4; Miller & Young, supra note 42; and Volkart, et al., supra note 21. 44 Hertenstein, M., Keltner, D., App, B., Bulleit, B, & Jaskolka, A., Touch Communicates Distinct Emotions. Emotion, 6, 528-533 (2006), at p. 528. See, also: Hertenstein, M., & Weiss, S. (Eds.), The Handbook of Touch: Neuroscience, Behavioral, and Health Perspectives. New York: Springer (2011). 45 For example, see: Cascio, C., Somatosensory Processes in Neurodevelopmental Disorders. Journal of Neurodevelopmental Disorders, 2, 62-69 (2010); Field, S., Touch Deprivation and Aggression Against Self Among Adolescents, in Stoff, D. & Susman, E. (Ed.), Developmental psychobiology of aggression (117-140). New York: Cambridge (2005). 46 Field, T., Violence and Touch Deprivation in Adolescents, Adolescence, 37, 735-749 (2002)

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suffering of others,” and also “promotes cooperation and reciprocal altruism.”47
60. The uniquely prosocial emotion of compassion “is universally signaled through touch,” so that persons who live in a world without touch are denied the experience of receiving or expressing compassion in this way.48 Researchers have found that caring human touch mediates a sense of security and place, a sense of shared companionship, of being and nurturing, feelings of worth and competence, access to reliable alliance and assistance, and guidance and support in stressful situations.49 A number of experts have argued that caring human touch is so integral to our well being that it is actually therapeutic; it has been recommended to treat a host of maladies including depression, suicidality, and learning disabilities.50
61. Not every isolated prisoner will suffer all of the previously described adverse psychological reactions to their severe conditions of confinement. As I will document below, Mr. Johnson has suffered from a high number of them, but still not literally every one. However, the overall
47 Goetz, J., Keltner, D., & Simon-Thomas, E., Compassion: An Evolutionary Analysis and Empirical Review, Psychological Bulletin, 136, 351-374 (2010), at p. 360. 48 Stellar, J., & Keltner, D., Compassion, in Tugade, M., Shiota, M., & Kirby, L. (Eds.), Handbook of Positive Emotions (pp. 329-341). New York: Guilford (2014) 49 Weiss, R., The Attachment Bond in Childhood and Adulthood, in C. Parkes, J. Stevenson-Hinde, & P. Marris (Eds.), Attachment Across the Life Cycle (66-76). London: Routledge (1995). 50 For example, see: Dobson, S., Upadhyaya, S., Conyers, I., & Raghavan, R., Touch in the Care of People with Profound and Complex Needs, Journal of Learning Disabilities, 6, 351-362 (2002); Field, T., Deprivation and Aggression Against Self Among Adolescents. In D. Stoff & E. Susman(Eds.), Developmental Psychobiology of Aggression (pp. 117-140). New York: Cambridge (2005)

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nature and magnitude of the negative psychological reactions that I have documented in my own research and that have been reported by others in the literature underscore the stressfulness and painfulness of this kind of confinement, the lengths to which prisoners must go to adapt and adjust to it, and the risk of harm that it creates. The potentially devastating effects of these conditions are reflected in the characteristically high numbers of suicide deaths, incidents of self-harm and self-mutilation that occur in many of these units.
62. The years of sustained research on solitary confinement, the negative outcomes that have been documented across time and locality, and the theoretical consistency of these findings with what is known more generally in the psychological literature about the harmful effects of isolation leave little doubt about its negative effects. These effects are not only painful but can do real harm and inflict real damage that is sometimes severe and can be irreversible. Indeed, for some prisoners, the attempt to cope with isolated confinement sets in motion a set of cognitive, emotional, and behavioral changes that are long-lasting. They can persist beyond the time that prisoners are housed in isolation and lead to longterm disability and dysfunction.
63. Thus, the accumulated weight of the scientific evidence that I have cited and summarized above documents and confirms that isolated confinement can produce a range of adverse psychological effects. We clearly do know what happens to people in prison and elsewhere in society when they are deprived of normal social contact for extended periods of

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time. The evidence I have summarized above describes and details the risk of psychological harm that long-term isolation creates, including mental pain and suffering and the increased incidence of self-harm and suicide.
64. The psychological literature underscores the importance of meaningful social contact and interaction, in essence establishing these things as identifiable human needs. Over the long-term, they may be as essential to a person’s psychological or mental health as adequate food, clothing, and shelter are to his or her physical well-being.
65. Thus, the existing scientific knowledge on the painful and harmful nature of long-term isolated confinement is long-standing, robust, empirically well-documented, and theoretically sound. In recent years, new insights about the fundamental human need for meaningful social contact and for caring human touch have added theoretical dimensions to the already existing substantial body of empirical data on these issues. These new insights add considerable weight to the long-standing consensus view: the experience of punitive isolation is not only painful but also places prisoners at significant risk of serious psychological harm.
B. A Shifting Correctional Consensus on the Painful and Harmful Effects of Isolated Confinement
66. In addition to the increasingly broad and deep scientific consensus on the painfulness and harmfulness of isolated confinement, a number of state correctional systems have explicitly recognized the psychological risks as well as the added expense and overall ineffectiveness

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of punitive isolation and taken steps to significantly reduce its use. A
recent New York Times Magazine article is instructive on this issue as well.
It reported the current views of Colorado officials, including the head of its
Department of Corrections: “Gov. John W. Hickenlooper of Colorado
signed [a bill banning solitary confinement for anyone under 21] at the
urging of the state corrections chief, Rick Raemisch, who spent a night in
solitary confinement and wrote about it in a New York Times Op-Ed.
concluding that its overuse is ‘counterproductive and inhumane.’”51
67. In fact, over the last several years, prison systems as diverse
as Maine and Mississippi have drastically reduced the number of prisoners
housed in solitary or isolated confinement.52 In addition, several states
have closed their primary solitary confinement units altogether. For
example, in January, 2013, the Illinois Department of Corrections closed
its supermax prison located at the Tamms Correctional Center.53 In
51 Binelli, supra note 1, at p. 40. For the Colorado Executive Director of Corrections Op Ed, see Raemisch, R., My Night in Solitary, New York Times, February 20, 2014 [available at: http://www.nytimes.com/2014/02/21/opinion/my-night-insolitary.html?_r=0]
52 For a discussion of the nature and impact of the reforms to punitive isolation in Mississippi, see Kupers, T., et al., Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Alternative Mental Health Programs, Criminal Justice & Behavior, 36, 1037- (2009); and Buntin, J., Exodus: How America’s Reddest State—And Its Most Notorious Prison—Became a Model of Corrections Reform, Governing, 23, 20- (2010). For a discussion of the nature of the reforms to punitive isolation in Maine, see: Heiden, Z., Change Is Possible: A Case Study of Solitary Confinement Reform in Maine, ACLU of Maine, March, 2013 [available at: http://www.aclumaine.org/sites/default/files/uploads/users/admin/ACLU_Solitary_Re port_webversion.pdf]; and Tapley, L., Reform Comes to the Supermax, Portland Phoenix, May 25, 2011 [available at: http://portland.thephoenix.com/news/121171-reform-comesto-the-supermax/].
53 See Tamms Correctional Center Closing—Fact Sheet, Illinois Department of Corrections. [available at: http://www.ilga.gov/commission.cgfa2006/upload/TammsMeetingTestimonyDocument s.pdf.]

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Colorado, in addition to reducing their administrative segregation population by nearly 37%, the Department of Corrections completely shut down a 316-bed ad seg facility.54
68. Finally, the Vera Institute of Justice recently received funding from Department of Justice to launch a Safe Alternatives to Segregation Initiative (“SAFE Initiative”) with the explicit goal assisting states and counties to reduce their use of segregation and solitary confinement and to develop effective alternatives to its use. The 11member Vera SAFE Initiative Advisory Board includes several state corrections secretaries and deputy secretaries, including those in Colorado, New Mexico, and Washington, as well as the state in which Mr. Johnson has been kept in isolation for so long, Pennsylvania, who are publicly committed to developing ways of achieving significant reductions in the use of prison isolation.
C. Additional Legal and Human Rights Standards Addressing the Painful and Harmful Effects of Isolated Confinement
69. In large part in response to the scientific evidence that I have summarized above, and out of the recognition that meaningful social contact and interaction is central to psychological health and well-being, the American Bar Association and virtually every major human rights and mental health organization in the United States as well as internationally
54 News Release, Department of Corrections, The Department of Corrections Announces the Closure of Colorado State Penitentiary II (March 19, 2012) [available at: http://www.doc.state.co.us/sites/default/files/Press%20release%20CSP%20II%20close %20%20Feb%201%202013.pdf]

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have taken public stands in favor of significantly limiting solitary or isolated confinement use (if not abandoning it altogether). These organizations include major legal, medical, and health organizations, as well as faith communities and international monitoring bodies.
70. For example, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment concluded that solitary confinement for longer than 15 days constitutes torture, and that juveniles and people with mental illness should never be held in solitary confinement.55 The American Academy of Child and Adolescent Psychiatry issued a statement opposing “the use of solitary confinement in correctional facilities for juveniles,” stating that “any youth that is confined for more than 24 hours must be evaluated by a mental health professional,” and aligning AACAP with the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, which includes among “disciplinary measures constituting cruel, inhuman or degrading treatment” “closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.”56 American Public Health Association issued a statement in
55 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc A/66/268, ¶¶ 76-78 (Aug. 5, 2011). 56 American Academy of Child and Adolescent Psychiatry, Solitary Confinement of Juvenile Offenders (2012) [available at http://www.aacap.org/AACAP/Policy_Statements/2012/Solitary_Confinement_of _Juvenile_Offenders.aspx ]. Calls for the prohibition of the use of isolated confinement for vulnerable populations such as juveniles underscore the widespread recognition that it is a psychologically painful and potentially very harmful environment. The same message is conveyed by the numerous calls to significantly limit the duration of solitary

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which it detailed the public-health harms posed by solitary confinement,
urged correctional authorities to “eliminate solitary confinement for
security purposes unless no other less restrictive option is available to
manage a current, serious, and ongoing threat to the safety of others,” and
recommended that “[p]unitive segregation should be eliminated.”57
71. Various faith-based organizations have issued similar policy
statements and recommendations urging significant reductions in the use
of solitary confinement and its outright elimination for some populations.
For example, New York State Council of Churches passed a resolution in
2012 opposing the use of prison isolation and urging all members of the
faith to participate in work to “significantly limit the use of solitary
confinement.”58 Similarly, that same year, the Rabbinical Assembly called
confinement or to eliminate its use altogether with prisoners who are mentally ill. For example, see, e.g., American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), available at http://www.psych.org/File%20Library/Learn/Archives/ps2012 _PrisonerSegregation.pdf (“Prolonged segregation of adult inmates with serious mental illness, with rare exceptions, should be avoided due to the potential for harm to such inmates.”); Mental Health America, Seclusion and Restraints, Policy Position Statement 24 (2011), available at http://www.nmha.org/positions/seclusion-restraints (“urg[ing] abolition of the use of seclusion . . . to control symptoms of mental illnesses”); National Alliance on Mental Illness, Public Policy Platform Section 9.8, available at http://www.nami.org/Template.cfm?Section=NAMI_Policy_Platform&Template=/Cont entManagement/ContentDisplay.cfm&ContentID=38253 (“oppos[ing] the use of solitary confinement and equivalent forms of extended administrative segregation for persons with mental illnesses”); Society of Correctional Physicians, Position Statement, Restricted Housing of Mentally Ill Inmates (2013), available at http://societyofcorrectionalphysicians.org/resources/position-statements/restrictedhousing-of-mentally-ill-inmates (“acknowledg[ing] that prolonged segregation of inmates with serious mental illness, with rare exceptions, violates basic tenets of mental health treatment,” and recommending against holding these prisoners in segregated housing for more than four weeks).
57 American Public Health Association, Solitary Confinement as a Public Health Issue, Policy No. 201310 (2013), available at http://www.apha.org/advocacy/policy/policysearch/default.htm?id=1462
58 New York State Council of Churches, Resolution Opposing the Use of Prolonged Solitary Confinement in the Correctional Facilities of New York State and New York City

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on prison authorities to end prolonged solitary confinement, and the solitary confinement of juveniles and of people with mental illness.59
72. In fact, in recognition of the adverse mental health effects of segregated, solitary, or isolated confinement, the American Bar Association’s Standards for Criminal Justice on the Treatment of Prisoners mandate that “[s]egregated housing should be for the briefest term and under the least restrictive conditions practicable.”60 Moreover, the ABA requires that the mental health of all prisoners in segregated housing “should be monitored” through a process that should include daily correctional staff logs “documenting prisoners’ behavior,” the presence of a “qualified mental health professional” inside each segregated housing unit “[s]everal times a week,” weekly observations and conversations between isolated prisoners and qualified mental health professionals, and “[a]t least every [90 days], a qualified mental health professional should perform a comprehensive mental health assessment of each prisoner in segregated housing” (unless such assessment is specifically deemed unnecessary in light of prior individualized observations).61 In addition, at
(2012), available at https://sites.google.com/site/nyscouncilofchurches /priorities/onsolitary-confinement; Presbyterian Church (USA), Commissioners’ Resolution 11-2, On Prolonged Solitary Confinement in U.S. Prisons (2012), available at https://pcbiz.org/MeetingPapers/(S(em2ohnl5h5sdehz2rjteqxtn))/Explorer.aspx?id=4389 59 Rabbinical Assembly, Resolution on Prison Conditions and Prisoner Isolation (2012), available at http://www.rabbinicalassembly.org/story/resolution-prison-conditionsand-prisoner-isolation?tp=377 60 American Bar Association, ABA Criminal Justice Standards on the Treatment of Prisoners, Standard 23-2.6(a) (2010), available at http://www.americanbar.org /publications/criminal_justice_section_archive/crimjust_standards_treatmentprisoner s.html [hereinafter “ABA Standards”]. 61 ABA Standards, 23-2.8(b).

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intervals “not to exceed [30 days], correctional authorities should meet and document an evaluation of each prisoner’s progress” in an evaluation that explicitly “should also consider the nature of the prisoner’s mental health,” and at intervals “not to exceed [90 days], a full classification review” should be conducted that addresses the prisoner’s “individualized plan” in segregation with “a presumption in favor of removing the prisoner from segregated housing.”62
73. Moreover, just last year, the United Nations Crime Commission approved the Standard Minimum Rules for the Treatment of Prisoners (known as the “Mandela Rules”) that contained several provisions designed to significantly regulate and limit the use of solitary confinement. Specifically, Rule 43.1 prohibits the use of “indefinite” and “prolonged” solitary confinement, as well as the placement of prisoners in dark or constantly lit cells.”63 More generally, Rule 45.1 provides that solitary confinement “shall be used only in exceptional cases as a last resort, for as short a time as possible…” and Rule 45.2 prohibits its use
62 ABA Standards, 23-2.9. See, also: New York Bar Association, Committee on Civil Rights Report to the House of Delegates: Solitary Confinement in New York State 1-2 Resolution (2013), available at http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26699, which called on state officials to significantly limit the use of solitary confinement, and recommended that solitary confinement for longer than 15 days be proscribed. 63 Commission on Crime Prevention and Criminal Justice, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), United Nations Economic and Social Council, May 21, 2015. The Commission defined “solitary confinement” as “confinement of prisoners for 22 hours or more a day without meaningful human contact.” See Rule 44.

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entirely “in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.”64
74. Finally, in addition to prominent human rights, mental health, and legal organizations, distinguished expert panels that have investigated and analyzed these issues have reached similar conclusions. For example, in 2006, a landmark report was published that was based in large part on a series of fact-finding hearings conducted across the United States by the bipartisan Commission on Safety and Abuse in America’s Prisons. In the course of the hearings, diverse groups of nationally recognized experts, stakeholders, and policymakers testified about a wide range of prison-related issues. Among other things, the Commission concluded that solitary and “supermax”-type units were “expensive and soul destroying”65 and recommended that prison systems “end conditions of isolation.”66
75. The next year, in 2007, an international group of prominent mental health and correctional experts meeting on psychological trauma in Istanbul, Turkey issued a joint statement on “the use and effects of solitary confinement.” In what has come to be known as the “Istanbul Statement,” they acknowledged that the “central harmful feature” of
64 Ibid. 65 Gibbons, John, and Katzenbach, Nicholas. Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons. New York: Vera Institute of Justice (2006), at p. 59, available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confinemen t.pdf. 66 Id. at p. 57.

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solitary confinement is its reduction of meaningful social contact to a level “insufficient to sustain health and well being.”67 Citing various statements, comments, and principles that had been previously issued by the United Nations—all recommending that the use of solitary confinement be carefully restricted or abolished altogether—the Istanbul group concluded that “[a]s a general principle solitary confinement should only be used in very exceptional cases, for as short a time as possible and only as a last resort.” Notably, the specific recommendations they made about how such a regime should be structured and operated would, if adopted, end most forms of long-term isolated confinement.
76. In summary, the conclusion that long-term solitary or isolated confinement subjects prisoners to grave risk of serious psychological harm continues to be theoretically sound, has widespread and growing empirical support, and now reflects the overwhelming consensus view of human rights, mental health, and legal organizations as well as expert groups that have carefully considered the issue.
D. Consensus on Limiting to Very Brief Exposure, Only After a Showing of Absolute Need or Necessity, and the Exclusion of Vulnerable Populations
77. It is worth emphasizing that the widespread recognition of the painful and harmful mental and physical effects of prison isolation that I have summarized above has led to a consensus about three critically
67 International Psychological Trauma Symposium, Istanbul Statement on the Use and Effects of Solitary Confinement. Istanbul, Turkey (December 9, 2007), available at http://www.univie.ac.at/bimtor/dateien/topic8_istanbul_statement_effects_solconfinm ent.pdf

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important limits that must be applied to such confinement: 1) the time or duration that a person is exposed to solitary confinement must be minimized, 2) the risks of harm are so great that solitary confinement should be used only when it is absolutely necessary and as a last resort, and 3) the added risk of harm to vulnerable groups or individual prisoners means that they should be exempted entirely from prolonged solitary confinement.
78. Thus, virtually every mental health, legal, and human rights standard and set of recommendations concerning solitary confinement acknowledges that the risk of harm from isolation is time- or dosedependent—that is, because the risks of psychological and physical damage increase as a function of the increased length of exposure, the use of solitary confinement should be limited to the briefest amount of time possible. In addition to those organizations that call for an outright ban on the use of solitary confinement because of its recognized harmful effects, below is a summary of just some of the recommendations that have been issued on time limits—limits that are typically measured in days and weeks (not years or decades, as in the present case):
—The United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment wrote in 2011 that in his opinion solitary confinement lasting more than 15 days can constitute “torture”68;
68 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc A/66/268, ¶¶ 76-78 (Aug. 5, 2011).

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—The American Bar Association’s 2010 Standards for Criminal Justice hold that “[s]egregated housing should be for the briefest term and under the least restrictive conditions practicable”69 and that at intervals “not to exceed [90 days], a full classification review” should be conducted that addresses the prisoner’s “individualized plan” in segregation with “a presumption in favor of removing the prisoner from segregated housing”70;
—The prominent mental health and correctional experts meeting on psychological trauma in 2007 in Istanbul, Turkey who issued the “Istanbul Statement” concluded that “[a]s a general principle solitary confinement should only be used… for as short a time as possible”71;
— The American Academy of Child and Adolescent Psychiatry’s 2012 policy statement on the solitary confinement of juveniles states that “any youth that is confined for more than 24 hours must be evaluated by a mental health professional”72;
69 American Bar Association, ABA Criminal Justice Standards on the Treatment of Prisoners, Standard 23-2.6(a) (2010), available at http://www.americanbar.org /publications/criminal_justice_section_archive/crimjust_standards_treatmentprisoner s.html [hereinafter “ABA Standards”]. 70 ABA Standards, 23-2.9 (emphases added). 71 International Psychological Trauma Symposium, Istanbul Statement on the Use and Effects of Solitary Confinement. Istanbul, Turkey (December 9, 2007), available at http://www.univie.ac.at/bimtor/dateien/topic8_istanbul_statement_effects_solconfinm ent.pdf. 72 American Academy of Child and Adolescent Psychiatry, Solitary Confinement of Juvenile Offenders (2012) (emphasis added), available at http://www.aacap.org/AACAP/Policy_Statements/2012/Solitary_Confinement_of _Juvenile_Offenders.aspx

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—The New York Bar Association in 2013 called on state officials to
significantly limit the use of solitary confinement and recommended that
solitary confinement for longer than 15 days be proscribed73;
— The Society of Correctional Physicians concluded that
segregating mentally ill prisoners on a “prolonged” basis lasting for more
than four weeks should be prohibited74;
—The American Psychiatric Association (APA) recommended in
2012 that “prolonged segregation” (which it defined as segregation lasting
longer than four weeks) of prisoners with serious mental illness “with rare
exceptions, should be avoided due to the potential for harm to such
inmates;”75
— And the United Nations Commission on Crime Prevention and
Criminal Justice’s Standard Minimum Rules for the Treatment of
Prisoners passed just last year defined “ prolonged solitary confinement”
as lasting “for a time period in excess of 15 consecutive days,” and
mandated that such prolonged confinement “shall be prohibited.”76
73 New York Bar Association, Committee on Civil Rights Report to the House of Delegates: Solitary Confinement in New York State 1-2 Resolution (2013), available at http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26699. See also the Rabbinical Assembly, Resolution on Prison Conditions and Prisoner Isolation (2012), available at http://www.rabbinicalassembly.org/story/resolution-prison-conditionsand-prisoner-isolation?tp=377, which called on prison authorities to end prolonged solitary confinement.
74 Society of Correctional Physicians, Position Statement, Restricted Housing of Mentally Ill Inmates (2013), available at http://societyofcorrectionalphysicians.org/resources/position-statements/restrictedhousing-of-mentally-ill-inmates.
75 American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), available at http://www.psych.org/File%20Library/Learn/Archives/ps2012 _PrisonerSegregation.pdf.
76 See Commission on Crime Prevention and Criminal Justice, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), United Nations Economic and Social Council, May 21, 2015, Rule 43.1 and Rule 44.

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79. Many of these same organizations and agencies similarly emphasized that the grave risk of serious harm from solitary confinement require that it be used only upon a showing of absolute necessity. For example, the authors of the “Istanbul Statement” concluded that “[a]s a general principle solitary confinement should only be used in very exceptional cases… and only as a last resort,”77 and the United Nations used almost identical language in formulating the “Mandela Rules” for the Treatment of Prisoners, mandating that solitary confinement “shall be used only in exceptional cases as a last resort.”78
80. Moreover, expert, legal, and human rights organizations also have recommended that, because of the increased grave risk of serious harm to which solitary confinement exposes them, vulnerable prisoners should be exempted from any form of prolonged placement. Thus, as I noted earlier, the American Psychiatric Association (APA) has recommended that “prolonged segregation” of prisoners with serious mental illness “with rare exceptions, should be avoided due to the potential for harm to such inmates,”79 and United Nations Standard Minimum Rules for the Treatment of Prisoners, Rule 45.2, prohibits its
77 International Psychological Trauma Symposium, Istanbul Statement on the Use and Effects of Solitary Confinement. Istanbul, Turkey (December 9, 2007), available at http://www.univie.ac.at/bimtor/dateien/topic8_istanbul_statement_effects_solconfinm ent.pdf.. 78 Commission on Crime Prevention and Criminal Justice, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), United Nations Economic and Social Council, May 21, 2015, Rule 45.1. 79 American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), available at http://www.psych.org/File%20Library/Learn/Archives/ps2012 _PrisonerSegregation.pdf.

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use entirely “in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.”80
81. As I will discuss in the remainder of this Declaration, all three of these consensus positions appear to have been violated. He has been kept in isolated confinement for three-and-a-half decades, many orders of magnitude beyond any of the tolerable or acceptable maximum limits envisioned in any of the guidelines or principles that have been promulgated. Moreover, he has been kept there despite a decades-long history of conforming behavior. As I will discuss below, there is no plausible justification offered anywhere in Mr. Johnson’s file that his continued isolation is “necessary” to achieve any legitimate penological goal or interest. And, finally, again, as I will discuss below, his advancing age and the cumulative effects of such an extraordinary length of time spent in isolation, absorbing its adverse psychological stressor and pains, have begun to take a serious toll on him. His increased vulnerability provides another compelling argument for expediting his release from isolation.
80 See Commission on Crime Prevention and Criminal Justice, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), United Nations Economic and Social Council, May 21, 2015, Rule 45.2. See, also: American Academy of Child and Adolescent Psychiatry, Solitary Confinement of Juvenile Offenders (2012), available at http://www.aacap.org/AACAP/Policy_Statements/2012/Solitary_Confinement_of _Juvenile_Offenders.aspx, which opposes “the use of solitary confinement in correctional facilities for juveniles”; Mental Health America, Seclusion and Restraints, Policy Position Statement 24 (2011), available at http://www.nmha.org/positions/seclusion-restraints, “urg[ing] abolition of the use of seclusion . . . to control symptoms of mental illnesses”; and the National Alliance on Mental Illness, Public Policy Platform Section 9.8, available at http://www.nami.org/Template.cfm?Section=NAMI_Policy_Platform&Template=/Cont entManagement/ContentDisplay.cfm&ContentID=38253, “oppos[ing] the use of solitary confinement and equivalent forms of extended administrative segregation for persons with mental illnesses.”

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V. ARTHUR JOHNSON’S CONDITIONS OF CONFINEMENT AND INSTITUTIONAL HISTORY
82. The above scientific, correctional, and human rights consensus provides the context or backdrop against which Arthur Johnson’s extraordinarily long period of isolated confinement should be evaluated. As I have outlined in great detail above, there is a substantial body of scientific data to support the proposition that depriving human beings of normal social contact is psychologically dangerous and harmful. There is a widespread professional, legal, correctional, and human rights consensus to significantly limit its use, only under circumstances where it is absolutely necessary and for the shortest possible amount of time, and precluding its use entirely for certain categories of vulnerable prisoners.
83. A prisoner’s psychological reactions to isolated confinement are shaped at least in part not only by the nature, severity, and duration of the isolation, but the psychological make-up and potential vulnerabilities of the prisoner himself. Ordinarily, pre-existing psychological problems and issues can play a role in understanding why and how some people react especially badly to isolation and others less so. In Mr. Johnson’s case, the customary psychological background materials were not included in his prison file. I relied instead on Mr. Johnson’s own brief description of his life before he came into the Pennsylvania Department of Corrections (DOC), while still in his teenage years. Also, because the DOC records I reviewed began in 2003, my account and understanding of Mr. Johnson’s years in isolated confinement before that time are based in large part on my personal interview with him.
84. In my interview with Mr. Johnson, although he was quiet and reserved at first, he became increasingly comfortable as we spoke. He

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was candid and forthcoming in answering all of the questions I posed to him.
85. Mr. Johnson told me that he grew up in a tough neighborhood in Philadelphia that was plagued by a great deal of crime. His mother passed away when he was only two years old, and he has no memories of her. His paternal grandmother, aunts, and father (who never remarried) raised him. Mr. Johnson told me that had a troubled childhood from his early school years on, and that he spent a lot of time in juvenile justice facilities.
86. Mr. Johnson was only 18 years old when he was given a life sentence for murder. He said he had a very difficult time accepting that he would spend the rest of his life in prison. Mr. Johnson said that his inability to come to terms with that harsh fact led to many early disciplinary infractions in DOC, including being place in “the hole” on a number of occasions. He also felt that lessons he had learned as a kid on the streets in his neighborhood in Philadelphia—that you have to “fight back” and that “you can either be weak and break or be strong and fight”— had perhaps served him well there, but caused him a great deal of trouble in the prison system.
A. The Conditions of Isolated Confinement to Which Arthur Johnson Has Been Exposed
87. Mr. Johnson reported that he spent time in various disciplinary segregation units81—called “Behavioral Adjustment Units”
81 As I made clear earlier, there is little question that the conditions of confinement in the Pennsylvania DOC to which Mr. Johnson had been subjected constitute “isolation” or “solitary confinement.” In addition to my own independent opinion on this fact, note that the United States Department of Justice concluded exactly the same thing in direct communications with the Pennsylvania DOC. See Letter from Jocelyn Samuels and David

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(BAUs) and later renamed “Restricted Housing Units” (RHUs) before the
serious incident in 1979 at SCI Pittsburgh that resulted in his continuous
isolation since then. Mr. Johnson said that once the attempted escape and
hostage taking at SCI Pittsburgh occurred, he believes that he was placed
in the worst isolation units throughout the state prison system, with no
possible way of earning his way out. The harshness of the conditions is
beyond dispute. In addition to my own observations of these conditions, I
note that in 2014 the United States Department of Justice found that the
DOC’s isolation units to be “unjustifiably harsh.”82
88. Below is the description of these normatively harsh
conditions of isolated confinement in the DOC that the Justice
Department provided and that are, again, entirely consistent with my own
direct observations and understanding, and corroborated in my interview
with Mr. Johnson:
…Every prisoner placed in solitary confinement must spend almost his entire day confined to a cell that is less than 100 square feet in size--about the size of an average American bathroom. The cell contains a metal bed frame, a thin plastic mattress, metal sink, metal toilet, and metal desk with an attached metal seat, and sometimes a small shelf. At some of the prisons, the cell will also have a small exterior-facing window, but at many of the prisons, the cell has no exterior window and no natural light coming directly into it. Usually, the prisoner
Hicks to Governor Tom Corbett, on the Investigation of the Pennsylvania Department of Corrections’ Use of Solitary Confinement on Prisoners with Serious Mental Illness and/or Intellectual Disabilities, U.S. Department of Justice, Civil Rights Division, February 24, 2014. Having defined isolation or solitary confinement as “the state of being confined in one’s cell for approximately 23 hours per day or more,” and “solitary confinement unit” or ‘isolation unit” as “a unit where either all or most of those housed in the unit are subjected to solitary confinement,” (id. at p. 4), the Department recognized that RHUs, like the ones Mr. Johnson has been confined in for decades, constitute solitary confinement because “[p]risoners in the RHUs are usually confined to their cells for roughly 23 hours a day” (id. at p. 5)
82 For example, id. at p. 9.

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is locked in his cell behind a solid metal door. The door has a narrow slot (used for passing food trays and for handcuffing the prisoner before he can leave the cell), and a small plastic window with a view to either a hallway or the housing unit's common area.
The lighting in the cell can be dimmed, but it can never be turned off, even at night. The noise level can be high, even at night, because of the yelling and banging of neighboring prisoners. The prisoner with SMI in solitary confinement in PDOC has limited out-of-cell time. Typically, he is allowed, at most, one hour in an empty and caged outdoor pen, five times a week, and a 15-minute shower three times a week…
Before he can leave his cell, a prisoner must first submit to a strip search. Further, to get from his cell to an out-of-cell activity, the prisoner is at all times escorted by correctional officers and has his arms and legs shackled together. Many prisoners we spoke to told us that they rarely leave their cells because of these procedures. They explained that being strip searched, handcuffed, and led by tether by two corrections officers made them feel like animals.
… disciplinary custody at an RHU generally has no access to television or radio; has only limited access to reading materials; cannot make telephone calls (with the exception of emergency calls approved by management); is denied contact visitation privileges; is denied any opportunity to have non-contact visits with friends; and, at most, can only have one non-contact visit per month with an immediate family member, lasting for no longer than an hour.
Living conditions in the RHU routinely involve a mix of disorienting and uncomfortable sensory experiences. For example, the air quality is often poor because of inadequate sanitation and ventilation. At one of the ·solitary confinement 1mits we visited where the sanitation was especially bad, prisoners complained en masse to us about the smell of the place. A prisoner there explained, “The smell is terrible. When a prisoner smears feces on the walls, it's often left like that for days and the entire pod reeks of shit and makes you want to vomit.”83
83 Id. at p. 9-10, footnote omitted.

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89. Although the focus of the Justice Department’s investigation was on the effects of these conditions on seriously mentally ill prisoners, it is important to recognize that the harsh conditions they observed were experienced by every prisoner who, like Arthur Johnson, was housed in Pennsylvania’s RHUs. Moreover, the lengths of time in solitary confinement that the Justice Department representatives correctly characterized as “long-term” and “prolonged” in the Pennsylvania prison system and about which they justifiably complained (citing, for example, the number of mentally ill prisoners who had been kept in RHUs for a year or more) pale in comparison to the more than three-and-a-half decades of confinement that Mr. Johnson has experienced in many of these same facilities.84
90. In addition, the painfulness of Mr. Johnson’s isolated confinement was exacerbated not only by the harshness of the conditions and the extraordinary length of time that he has been subjected to them but also because he became convinced that he was helpless to alleviate this suffering. More specifically, he told me that he does not know, and has never been told, what steps he could or should take to bring about an end to his painful isolation. His claim that DOC officials have been unresponsive to his requests to be released from isolation and have failed
84 The understanding that conditions of confinement that do not otherwise constitute cruel and unusual punishment could become so if experienced for lengthy periods of time is longstanding. For example, see Madrid v. Gomez, 889 F. Supp. 1146 (1995). It was actually recognized with respect to the Pennsylvania prison system, at around the time Mr. Johnson was beginning his long odyssey in the state’s solitary confinement units. In Imprisoned Citizens United, the court described conditions in a special “Glass Cage” unit at SCI Huntingdon—one that Mr. Johnson reported to me that he actually was housed several times—as “harsh” and “bleak.” Although the court did not declare these this unit unconstitutional per se, it also explicitly acknowledged that “conditions that would be permissible if for a short time may become cruel and unusual if lengthy” Imprisoned Citizens United v. Shapp, 461 F. Supp. 522, 526 (1978).

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to provide him with meaningful guidance about what he can do to facilitate his return to general population is amply supported by the DOC records that I reviewed.
B. Arthur Johnson’s Pennsylvania DOC File Since 2003
91. The portion of DOC file I was provided and reviewed contain official documents that have been placed there since 2003, covering the most recent approximately 13 years that Mr. Johnson has been kept in isolated confinement. I will discuss them in two separate sections—Mr. Johnson’s custody and classification records and the record of his mental health contacts during this period.
1) Mr. Johnson’s Custody and Classification Records in the DOC
92. The portion of Mr. Johnson’s file that I was provided includes, among other things, the various grievances that he has lodged with the prison administration over the years addressing different aspects of his confinement. They reveal him to be conscientious and respectful. His complaints focus on basic aspects of his confinement—access to yard, charges made against his inmate account, not getting his commissary orders delivered, but are unremarkable and appropriate in nature. Similarly, the reports of his “general appearance and behavior” during, for example, his routine medical examinations over the many years he was confined in isolation describe him uniformly as “calm,” “cooperative,” “normal,” and “appropriate.” There is no indication that, during the

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decade-long period covered by the records, Mr. Johnson was in anyway a troublesome, disruptive, or disrespectful prisoner who created or presented any custody-related problems for staff.
93. In addition to the grievances he filed over aspects of living conditions, there are a number of “inmate request to staff member” and other forms that convey Mr. Johnson’s repeated requests to be removed from RHU and placed back in general population (e.g., on June 19, 2009, to the Superintendent at SCI Forest). There are numerous indications that also he has made this request verbally, on many occasions, to relevant staff and committees (e.g., on January 16, 2003, April 10, 2003, at SCI Greene; on June 15, 2006, May 17, 2007, August 9, 2007, January 24, 2008, and June 11, 2009 at SCI Forest; on December 15, 2010 and November 10, 2011, at SCI Rockview).
94. However, based on the files I reviewed, there do not appear to be any meaningful, substantive responses from Pennsylvania DOC officials to Mr. Johnson’s numerous requests to be released from isolated confinement. Instead, the DOC uses the same uninformative, boilerplate language is used purporting to justify his decades-long solitary confinement, seemingly entirely on the basis of events that occurred in 1979, for which the absence of any supporting documentation is repeatedly acknowledged. This continues to occur despite Mr. Johnson’s record of consistently conforming behavior—behavior that is repeatedly described as either “good” or “satisfactory” or “acceptable” or “doing well”85—while
85 In addition to the entries mentioned in various paragraphs in the body of this Declaration, the unit reports that I reviewed continuously describe Mr. Johnson’s behavior as “satisfactory” (for example, his behavior is characterized this way on July 3, 2003 and October 2, 2003, at SCI Greene, on May 20, 2004 at SCI Rockview), and on December 2, 2004 at SCI Smithfield), as “acceptable” (for example, at SCI Smithfield, on October 7, 2004 and November 4, 2004), and he is characterized as “doing well” (on February 3, 2005 at SCI Forest). These positive comments continue to through the most

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he is being subjected to truly severe conditions of confinement. I review this part of his record in some detail in the following paragraphs because it adds the important dimensions of unresponsiveness and uncontrollability to Mr. Johnson’s extraordinarily long period of isolated confinement, dimensions that exacerbate the psychological damage resulting from his experience.
95. The custody and classification records that I was provided begin mid-year, 2004, after Mr. Johnson had already be held in isolation for a quarter century, and end in July, 2015. The records indicate that on June 8, 2004, Mr. Johnson was placed in the RHU at SCI Smithfield. This placement was said to be “due” to his transfer from SCI Rockview while on AC status. The report of the “Program Committee’s Decision and Its Rationale” dated July 15, 2004 indicated that the Committee’s decision to transfer him to the LTSU [“Long Term Segregation Unit”] was based on his “extensive, disruptive history during his incarceration.” Yet the same report acknowledged that “RHU officers report no concerns” about Mr. Johnson, his “adjustment in the RHU is described as good,” and he was said to be “quiet and cooperative with staff.” Essentially the same rationale for his continued isolation was repeated a month later, when the Program Review Committee met on August 12, 2004, despite the same positive characterizations of Mr. Johnson’s behavior.
96. The records reflect that a few months later, on February 4, 2005, SCI Smithfield Superintendent Sobina informed Mr. Johnson that he was being retained on “A.C. status” because of his “poor overall
recent time period covered by the available records. For example, on June 3, 2015, he “[g]ood housing reports are noted.” In the most recent years, the PRC “encourages” Mr. Johnson to “stay misconduct free and to earn good housing reports” (e.g., December 11, 2014), which he invariably does, but to no avail.

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adjustment” at his previous institution, and that his isolated confinement would not be changed “until a successful adjustment to general population appears likely.” However, no evidence of “poor overall adjustment” at Mr. Johnson’s previous institution (SCI Rockview) was cited, and no guidance was provided with respect to exactly what behavior—other than the conforming behavior in which he had been engaged—would make “a successful adjustment to general population appear likely.” In fact, the succession of subsequent communications that Mr. Johnson received from various Program Review Committees suggested that his behavior was irrelevant to his retention in isolation, and that he was utterly powerless to change that fact.
97. Thus, after Mr. Johnson was transferred to RHU at SCI Forest on January 25, 2005, he personally appeared before the Program Review Committee on the next day. A report of the Committee’s conclusions was filed on February 3, 2005, in which it was noted that Mr. Johnson was “polite and cordial.” But the Committee made no recommendation about releasing him from isolation. The next documented “Committee Decision and Rationale” was filed a few months later, on April 19, 2005. Mr. Johnson’s adjustment was again described as “satisfactory “ and “no major issues or concerns” were noted. The report acknowledged that Mr. Johnson complained that “he was being moved once every 10 or 11 days as opposed to once per month”—suggesting that he was not only being retained in isolation but that he also was being subjected to enhanced security procedures.
98. The written justification given for his continued placement in Administrative Custody, stated in this April, 2005 report, was: “the inmate is a danger to some person(s) in the institution who cannot be protected by

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alternative measures. Specifically, he is a long-term AC status inmate with an assaultive history.” The “danger” Mr. Johnson supposedly represented was described in entirely non-specific terms—referencing only “some person(s)”—and the nature of the danger appeared to be based on his status as a “long-term AC inmate.” However, the only justification offered for this status was Mr. Johnson’s “problematic history.” Thus the “threat” he supposedly represented to “some person(s)” was based on his AC status, and his AC status was based on his “history”—a distant and remote history that he could not change.
99. A few months later, the rationale for Mr. Johnson’s continued isolation appeared to have changed slightly. Thus, the Program Review Committee’s report filed on July 14, 2005 indicated that Mr. Johnson “continues to request placement in general population.” Again, however, his RHU housing was justified on the basis of “a problematic history.” But this time the reasoning had shifted: “[I]nmate Johnson will be continued in Administrative Custody because placement in the general population would endanger the inmate’s safety or welfare when it is not possible to protect him by other means.” Clearly, now, the alleged “danger” that Mr. Johnson supposedly once represented to others had been transformed into a danger others represented to him. Once again, no more specific information was provided and no explanation of this shift in rationale was given.
100. In October 6, 2005, the two previous justifications were asserted together, in the same document, with no attempt made to explain what had changed. Thus the Program Review Committee indicated that, although Mr. Johnson’s behavior in the RHU continued to be “acceptable,” he was retained in isolation both because “[t]he case file indicates he

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remains a threat to our population” and “placement in general population would endanger [his] safety or welfare.” Again, no documentation was provided that specified or explained why he represented a threat, or to whom, or why his safety or welfare were in danger, or from whom.
101. On December 29, 2005, Mr. Johnson continued to be described as having demonstrated “satisfactory” behavior and “officers report he remains quiet on the unit.” The threat to his safety that had supposedly existed if he were to be placed in the SCI Forest population had now somehow disappeared but Committee continued to assert that Mr. Johnson posed “a danger to some person(s) in the institution.” Neither the nature of the danger nor the identity of the persons was specified.
102. By March 23, 2006, these rationales had been garbled together into an explanation for continued isolated confinement that I honestly cannot decipher. Specifically, the Program Review Committee’s justification for keeping Mr. Johnson in isolation was expressed this way: “the inmate is a danger by/from some person(s) in the institution who cannot be protected by alternative measures.” I have reproduced that last sentence verbatim but I confess that I do not know exactly what it means. Nonetheless, this same sentence is repeated as the rationale for Mr. Johnson’s continued confinement in isolation in Program Review Committee reports filed at SCI Forest on June 15, 2006, September 7, 2006, November 30, 2006, February 22, 2007, May 17, 2007, August 9, 2007, November 1, 2007, and January 24, 2008.
103. When Mr. Johnson appeared before the Program Review Committee in April, 2008, he again “requested to be released to population. This time, the April 17, 2008 report explained simply, but no more informatively, that “he would not be released to population due to

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his history…” This new justification essentially codified what had been implied all along; omitting any reference to Mr. Johnson allegedly being a danger to others, or being in danger himself, it simply justified his continued isolation on the basis of something he clearly could not change, “history.”
104. The same rationale was included in the next Program Review Committee report, dated July 10, 2008. When Mr. Johnson requested release to the general population, his request was denied, and only the now familiar “problematic history including assaultive behavior” cited as the reason. Here, too, this reason was used despite the fact that Mr. Johnson was described as having been “quiet in the RHU.” This rationale and description of his conforming behavior was repeated in the October 2, 2008 review. The same rationale was used in the December 24, 2008 report, except that the previously uninterpretable language now reappeared: “the inmate is a danger by/from some person(s) in the institution who cannot be protected by alternative measures.” It was repeated verbatim in subsequent SCI Forest Program Review Committee Progress reports, on March 19, 2009 and June 11, 2009.
105. On September 3, 2009, at SCI Forest, a Program Review Committee Action report was filed. It indicated that, at that time, Mr. Johnson had been in “Continuous Security Level 5 Housing” for 29 years 8+ months. The report indicated that Mr. Johnson asked the Committee “why he was placed back on the Restricted Release List,” and he reminded them that “he has never been a problem here.” He further told the Committee he felt he had “paid for what he has done” and was “being punished over and over for the things he did in the past.” In response, the Committee simply repeated the same boilerplate, uninterpretable

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language that had been used in the past: his “problematic history” meant he was “a risk to the security of the institution,” and that he was “a danger by/from some person(s) in the institution who cannot be protected by alternative measures.”
106. Mr. Johnson was transferred to SCI Huntingdon in late 2009. He appeared at his first Program Review Committee on December 2, 2009. A document containing the “Program Review Committee’s Decision and Its Rationale,” dated that same day at SCI Huntingdon indicated that Mr. Johnson was “to be here short term.” Although he had originally been placed in Restricted Housing “due to a Misconduct” in 1222-1979 (some 30 years earlier), the report also noted that “[r]ecords specific to the reason were not available.” Remarkably, although the document mentioned a “problematic past with assaults and escape attempts, it also acknowledged that ”Mr. Johnson’s “adjustment within the RHU” was “satisfactory since 4-22-99,” approximately 10 years from the time of the review, and that the “RHU officers report no new concerns.” Nonetheless, he was retained in isolated confinement.
107. Another ultimately uninformative and unresponsive statement of the “Program Review Committee’s Decision and Its Rationale,” was completed at SCI Huntingdon a few months later, on January 13, 2010, just before Mr. Johnson was transferred to another institution. It repeated a boilerplate rationale for his continued isolation, noting that “[t]here are numerous security concerns related to this case,” and repeated the same exact phrase in the next paragraph (“there are numerous security concerns related to this case”). Rather than explaining what those concerns were, the review “rationale” acknowledged that the “[r]ecords specific to the reason” for Mr. Johnson’s 12/22/1979 placement

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in Restricted Housing more than 30 years earlier “were not available.” The Committee report then re-introduced a rationale for Mr. Johnson’s isolated confinement that had not been employed for years: “the inmate is a danger to himself or others.” It did not include an explanation of the basis for this renewed claim, one made all the more questionable by the fact that the review report also acknowledged—as virtually all of the numerous, preceding ones had—that Mr. Johnson’s RHU adjustment had been “satisfactory,” and that “the RHU officers report no concerns this review period.”
108. On January 22, 2010, Mr. Johnson was transferred from SCI Huntingdon to SCI Rockview. He had his Administrative Custody/802 review there on February 4th of that year (although I could find no documentation of what transpired). On September 23, 2010, December 15, 2010, March 3, 2011, May 26, 2011, August 18, 2011, November 11, 2011, February 2, 2012, April 26, 2012, July 19, 2012, and again on October 11, 2012, Mr. Johnson’s administrative custody was reviewed at SCI Rockview. Each time the corresponding reports acknowledged that, although Mr. Johnson had been kept in Restrictive Housing since 12/22/79 “due to a misconduct,” the “[r]ecords specific to the reason are not available.” The most specific explanation was provided on January 3, 2013, when Mr. Johnson was still at SCI Rockview. He was described as having been “in Restrictive Housing Unit on DC or AC status since 12/22/79”—some 34 years of isolation—“largely due to misconducts related to Escape attempts and/or possession of implements of Escape.” Those were the “misconducts” for which “[r]ecords specific to the reason” continued to be “unavailable.” And, if those misconducts were now only

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“largely” the reason for keeping him for nearly three-and-a-half decades in isolation, nothing in addition was provided in the report.
109. In early 2013, Mr. Johnson was transferred from Rockview to SCI Frackville. On February 28, 2013, a Program Review Committee’s Decision and Rationale report described Mr. Johnson as having been received at SCI Frackville from SCI Rockview as an “ADM/SEP transfer.” He was placed in the RHU Annex at Frackville, and his request to have a TV was denied by the Superintendent, even though “[h]is adjustment within the RHU is described as satisfactory” and the “RHU officers report no concerns this review period.” On May 30, 2013, at SCI Frackville, Mr. Johnson had a “privileges review” in which he was described as having continued to show “positive adjustment.” He was given a TV, a digital antenna, and sneakers, but he nonetheless was retained in “long term AC” due to his unchanged Restricted Release List status.
110. In recent years, Mr. Johnson has been nearly disciplinary free and has received no serious write-ups of any kind—for many years. Most recently, Mr. Johnson was written up in March, 2013, for what seems like more of a misunderstanding, rather than even a minor disciplinary infraction. Mr. Johnson appears to have had a multi-vitamin given to him on his way to the yard by a nurse.86 He then took it back to his cell so that he could take it with fruit (because, he said, probably correctly, that vitamins are best taken with food) and, when the officer discovered the multi-vitamin in his pant leg, he was written up for contraband. There was no allegation that the pill was anything other than a vitamin or that Mr. Johnson was not entitled to possess it, only that he was not supposed to
86 Note that Mr. Johnson’s concerns about access to vitamins were reflected in his file as early as September 9, 2004, when he inquired about them at a Program Review Committee meeting.

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bring it back from yard. It should be noted that the records reflect that, prior to this minor infraction, “[h]e was 15 years free of misconducts…” (Program Review Committee’s Decision and Rationale, September 12, 2013).
111. Despite this, Mr. Johnson continues to request clarification over his continued placement in isolation and guidance about what he can do to arrange for his release, and fails to get meaningful responses to either request. His August 13, 2014 correspondence with DOC Eastern Region Staff Assistant Scott Miller is illustrative of the uninformative responses that he continues to receive. Mr. Miller contended that Mr. Johnson had, in fact, repeatedly been given an explanation for his continued placement in isolation—that it was “due to serious escape history”—which presumably refers to events that occurred in 1979, some 35 years before. In response to Mr. Johnson’s request for guidance about what he could do to facilitate his release, Mr. Miller offered this “advice”: “I would encourage you to demonstrate positive behavior and to work with staff in a constructive manner.” However, that is precisely what Mr. Johnson has been doing, for decades, and continues to do to the present day. He remains in isolation.
2) Mr. Johnson’s Mental Health Records in the DOC
112. The “mental health records” that I was provided pertaining Mr. Johnson’s time in prison date from April, 2003, after he already had been in isolation for some 24 years, and ended in 2013. They are pro forma and largely uninformative, devoid of any kind of in-depth psychological analysis or insights concerning either Mr. Johnson’s mental health or the

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effects of extremely harsh and psychologically damaging isolation to which he has been subjected for decades. Instead, the mental health entries and observations are superficial, often boilerplate and repetitive, and typically reflect little more than endorsements of corrections-based (rather than psychologically-informed) judgments and recommendations that rely entirely on Mr. Johnson’s earlier disciplinary history rather than his current psychological make-up, emotional state, and overall functioning.
113. Thus, for example, Mr. Johnson’s prison file contains a number of “Suicide Risk Indicators Checklists,” all of which appear to have been filled out by correctional officers or correctional lieutenants. They consist of no more than superficial observations (e.g., “inmate seems OK,” and “no suicidal ideation”). The most detailed, but still uninformative, of the checklists in the file I reviewed include entries such as this: “Inmate seen at cell door. Inmate denied suicidal and/or homicidal ideation. Inmate instructed to report any changes to staff.”
114. The Pennsylvania DOC’s heavy reliance on “cell front” contacts by correctional officers and mental health staff as the primary means of routinely monitoring the mental health of isolated prisoners like Mr. Johnson is problematic for several reasons. Of course, correctional officers are not trained mental health professionals. Moreover, even when mental health staff conduct them, cell front contacts typically reveal only the most extreme and clearly visible forms of psychological distress and deterioration. Because isolated prisoners do not actually “do” much, there are few opportunities to notice unusual behavior or changed patterns of interacting. Thus, cell front monitoring places the onus on prisoners to volunteer their own symptoms or signs of dysfunction, something they may be unwilling or unable to do. In addition, prisoners in general and

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isolated prisoners in particular almost never talk about psychological problems with custody staff. They rarely do so with mental health staff if the contacts are cell-front. This is because they do not want to reveal sensitive information to staff within earshot of other prisoners. Finally, “instructing” prisoners to share “suicidal and/or homicidal ideation” with staff—part of the DOC “Suicide Risk Indicators Checklists” protocol—is a similarly ineffective safeguard. It first sets the bar for distress or deterioration very high (suicidal and/or homicidal ideation), places responsibility for “self-diagnosis” on the prisoners, and instructs them to do something (report changes in their mental state to staff) that most of them are adamantly opposed to ever doing.87
115. In addition to the Suicide Risk Indicators Checklists, there were other kinds of documents in Mr. Johnson’s file that purported to address his mental health. Unfortunately, they were only marginally more informative. For example, a “Cumulative Adjustment Record,” filled out at SCI Greene on April 1, 2003, based on another cell front contact (this time with mental health staff), described Mr. Johnson as “submissive.” It noted only that he did not report any “psych/health/MH issues or concerns” and that he “appeared to be in stable condition,” but was no more probative of his underlying mental health or state of mind.
116. Another seemingly more meaningful but still hardly in-depth contact occurred on May 12, 2003, when the results of what was described
87 The inadequacy of “cell-front” psychological evaluations of was underscored by a former DOC staff psychologist who was quoted in the Justice Department report: “One former staff psychologist explained that he found it difficult to appropriately assess the condition of prisoners in solitary confinement. He emphasized that his manager discouraged him from doing anything other than cursory cell-side assessments of prisoners’ mental health. He noted that for inmates who were inactive and in their cells most of the time, it was next to impossible to fully assess the condition of prisoners from cell-side without an out-of-cell visit.” At p. 9.

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as a “normal psychological interview” were recorded. Mr. Johnson was described as “unclean & not well organized.” The mental health staff worker noted that Mr. Johnson “refused to talk much” but that “[i]t appeared he still has to make adjustments”—although, after some 34 years of isolation, it was not clear what he was still adjusting to. He was described as being ‘[e]motionally labile” and, somewhat inconsistently, as having “flat affect.” The staff worker recommended that Mr. Johnson “be checked into but not necessarily often.” A little more than a month later, however, another mental health worker saw him cell front and said he “seemed to be doing well.” There was no evidence of any meaningful follow-up examination in conjunction with the emotional lability and flatness of affect observed earlier.
117. This seemed to establish a pattern that persisted for the next decade—Mr. Johnson is seen cell front and primarily only at cell front, admits to or volunteers no mental health problems or concerns, and the mental health worker duly records that he is just fine. This exact pattern is documented, for example, on September 29, 2003, March 22, 2004, July 2, 2004, October 14, 2004, June 20, 2005, November 17, 2005, December 28, 2005, March 22, 2006, June 12, 2006, November 30, 2006, January 4, 2007, February 20, 2007, May 16, 2007, August 7, 2007, October 31, 2007, January 23, 2008, April 17, 2008, July 9, 2008, September 30, 2008, December 23, 2008, March 16, 2009, June 10, 2009, September 2 2009, January 5, 2010, July 5, 2010, June 17, 2013, July 29, 2013, April 15, 2015, May 19, 2015, May 27, 2015, June 3, 2015, June 22, 2015, and July 10, 2015.
118. As a result, with few exceptions, the “mental health file” covering Mr. Johnson’s 13 years of isolated confinement contains

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numerous “mental health contact notes,” at first spaced at roughly 90-day intervals (although I cannot account for the three year gap between July, 2010 and July, 2013), and then more frequently in 2014 and 2015, that nonetheless provide no meaningful mental health assessments of, or clinical insights into, Mr. Johnson or reflect any appreciation of the adverse psychological effects of the extraordinarily long-term isolated confinement to which he has been subjected. Each report contains basically the same uninformative descriptive account, based on superficial cell-front contact: “inmate voiced no concerns,” and “[n]o psychological preclusions exist to continued housing in RHU at the time of this report.” Interestingly, however, beginning on April 17, 2008 and continuing through September 2, 2009 (with exception of June 10, 2009), the boilerplate language was changed to include this option: “there is no acute psychopathology apparent that would preclude inmate’s release from or continued stay in, the RHU at this time.” No reason was provided for the introduction of the new phrase into the mental health staff’s conclusions, or why it reverted to the previous boilerplate (omitting mention of his possible release to general population) after September 2009.
119. The few exceptions to these entirely superficial and uninformative “mental health contact notes” entries in Mr. Johnson’s file occurred sporadically and infrequently, at several year intervals. They are part of what is apparently supposed to be the DOC’s annual review of isolated prisoners’ suitability for continued housing in solitary confinement-type conditions. Although somewhat more detailed than the “mental health contact notes,” and apparently based on out-of-cell interviews (rather than exclusively cell-front contacts), they still do not remotely represent in-depth psychological evaluations, assessments, or

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analyses. Nor do they appear to reflect any real understanding of the significant risk of serious psychological harm that isolated confinement represents.
120. The first one of these evaluations in the file that I reviewed was actually appended to another report. It was entitled a Report of Restricted Housing Unit (RHU) Evaluation, and dated May 3, 2001.88 It noted that Mr. Johnson, who was then in his 32nd year of isolation, had appeared for a clinical interview but had refused to submit to personality testing. Instead, the clinician—presumably, David Sacks, a psychological services specialist (with unspecified advanced training or education and no advanced degree indicated) relied on personality testing that been completed six years before (in 1995). Although Mr. Sacks had ignored the implications of that earlier testing, it did identify several areas of potential concern for a prisoner who was being evaluated for suitability for continued isolated confinement. Those areas of concern included the fact that the testing revealed that Mr. Johnson had a “very low tolerance for frustration” (a psychological reaction that is significantly worsened and can become very problematic for prisoners in isolation), a tendency to “exhibit periods of increased irritability” (also something that is greatly exacerbated for most people housed in these units), and a susceptibility to suffer “periods of significant depression” (again, a clinical pattern that is very common, and dangerous, in isolated confinement, where rates of suicide are much greater than elsewhere in the prison system).
88 The authorship of this report is somewhat confusing. Although it is signed by “Psychological Services Specialist” Sacks, it makes a number of references to another, 1995 report, authored by PSA D. Sacks,” referenced in the third person. Presumably, the author of both the 1995 and 2001 evaluations are the same person.

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121. The evaluator (presumably, Mr. Sacks) was either unaware of these risks or chose to ignore them. Instead, he relied on what he described as Mr. Johnson’s “record of long term positive adjustment to the RHU” to conclude that he had “adapted well to his current circumstances.” However, Mr. Sacks did note that, although he felt there were “no clinical contraindications to [Mr. Johnson’s] continued AC status,” there also were no clinical reasons “to preclude his release to General population, either.”
122. In the final analysis, Mr. Sacks reached a fundamentally correctional rather than psychological judgment. That is, without offering any psychological rationale or basis for doing so, he concluded that Mr. Johnson represented “a great risk to the safe and orderly running of the institution.” Similarly, his final recommendation—that Mr. Johnson “continue to be maintained on AC status in the RHU in order to minimize any possible institutional disruption”—appeared to be based on correctional rather than any psychological considerations.
123. Another rare out-of-cell evaluation of Mr. Johnson occurred several years later, on August 30, 2004, when a “Confidential Psychological Evaluation for Long-Term Segregation Unit Consideration” was conducted at SCI Smithfield. Mr. Johnson was taken to the “interview room of the Restricted Housing Unit” where he was described as “cooperative,” “polite,” and willing to answer all of the questions posed to him. Although the evaluation appears to have been conducted entirely by an M.A.-level “psychological services specialist”—Debra Houck—it contained very little in the way of psychological insight or analysis. Instead, Ms. Houck merely noted that Mr. Johnson “denies any past suicide and has not taken medication for any psychiatric disorders.” In fact, she, too, concluded with a correctional—not psychological—opinion,

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namely that “[t]he highly structured environment of an LTSU would be appropriate for this inmate.”89 There are no psychological factors or considerations cited in the evaluation that would support this conclusion, and no attempt whatsoever, even in passing, made to grapple with the adverse psychological consequences of continuing to keep Mr. Johnson in isolated confinement for 35 years or more.
124. The report of the next such evaluation was filed on January 3, 2006, at SCI Forest, and was entitled a “Psychological Evaluation for Annual Review—Restricted Housing Unit Placement” and signed by two staff members, Michele Jerman and Alan Bennett (a “psychological services specialist” and “licensed psychological manager,” respectively). Although Mr. Johnson was identified in the report as having average intellect, the report referenced prior testing that revealed that he read at only a mid-4th grade level, and that his spelling and math achievement was at the mid-3rd grade level. (This is notable because, as someone who has been housed in isolation for literally his entire adult life, Mr. Johnson has been prevented from attending any educational classes to improve his ability to read and write.) The report identified only two “misconducts, charges, and sanctions” and listed them as having occurred in April, 1999 and August, 1997. The few clinical judgments that were contained in the report were oddly framed and difficult to interpret. Thus, the evaluators noted that, although Mr. Johnson “spoke freely,” they found that his “openness and directness was sometimes perplexing,” apparently in part because Mr. Johnson’s “perceptions bordered on suspicious, especially when he spoke about line-staff. He reported that he has a mistrust of
89 The previously mentioned 2001 evaluation by Mr. Sacks appears to have been appended to Ms. Houck’s report.

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Correctional Officers.” (Whether one agrees with such mistrust or not, it is hard to understand why mental health staff working in an isolation unit would find it “perplexing” for a long-term isolated prisoner to harbor or express it.) In any event, the evaluators noted that Mr. Johnson’s “thought process is fragmented and illogical,” even though it “makes sense to him in his own mind.” Having found Mr. Johnson “perplexing,” “suspicious,” and manifesting a “fragmented” thought process, the evaluators nonetheless concluded that there was “no acute psychopathology that would preclude his stay in the RHU.”
125. Apparently, during his January 3, 2006 evaluation, Mr. Johnson had expressed the belief that no one should be incarcerated and be forced to relinquish their liberty, and that he would “do anything” to escape from prison. However, an entry recorded in his file six months later indicated that he had disavowed that view. Thus, a “Mental Health Contact Note” dated June 2, 2006, indicated that “[h]e has since changed his mind and says he wants to be in general population so he can go to yard and exercise.” The mental health staff member (Michele Jerman) writing this report indicated that she would “ask Mr. Johnson to write a plan that will help facilitate his placement in general population” and that she would “present something” to facilitate this placement at Mr. Johnson’s next review. This was the only instance in the file that I could identify in which a mental health staff member appeared to engage with Mr. Johnson and provide him with even a modicum of meaningful guidance.
126. Setting aside the questionable tact of asking Mr. Johnson to himself “write a plan that will help facilitate his placement in general population”—that, of course, is something that staff should have had the responsibility to undertake—there does not appear to be any real follow-up

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to this recommendation by the prison administration. Thus, three months later, a Mental Health Contact Note filed on September 8, 2006 (per Ms. Jerman), acknowledged simply that Mr. Johnson “reports that he would like to go to GP,” that he has been “proactive in writing a step-down program,” but there apparently had been no response to his efforts. She recommended that he be “assessed for GP, not necessarily moved, but assessed by counselor who should review all past misconduct and escape record.”
127. However, in the next Mental Health Contact Note, filed several months later, on November 30, 2006, Ms. Jerman indicated simply that Mr. Johnson had “no complaints today,” and “engaged in reciprocal conversation.” The issue of his possible transfer to general population appeared to have been dropped entirely; there was no change in his status and no mention made either of the step-down program or moving him out of isolation.
128. The Mental Health Contact Note written on January 4, 2007, indicated that Mr. Johnson was seen “in response to comments he made to his Unit Counselor recently” (which were not reported in the Note). Mr. Johnson apparently did not recognize the mental health worker and was described as “uncooperative.” The Note implied that he recently had been reviewed by the PRC, who apparently had decided not to move him to general population and, as the staff member acknowledged, “[i]t would be understandable that he might feel some discontent by this decision.”
129. A little more than a month later, on February 20, 2007, Michele Jerman, who had encouraged Mr. Johnson to devise his own stepdown program and plan to facilitate his release from isolation, saw him for a routine cell-front contact. No mention was made of her earlier

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suggestion that he “write a plan that will help facilitate his placement in general population” and her promise to “present something” to facilitate his transfer to general population; instead, she now merely indicated that there was “[n]o acute psychopathology present that would preclude RHU placement.” After that, as I noted above, the pattern of pro-forma, uninformative cell-front contacts unfolded, one in which “no psychological preclusions” to Mr. Johnson’s “continued housing in RHU” and “no mental health concerns” were repeated again and again, almost verbatim.
130. Ms. Jerman surfaced again in Mr. Johnson’s mental health file when she authored a “Psychological Evaluation for Annual Review— Restricted Housing Unit Placement” filed on January 12, 2007. She noted that Mr. Johnson was interviewed “because he has been in long-term, restricted housing unit placement for over two decades” (actually, 28 years). The assessment itself was superficial and, although it was more detailed than the cell-front contacts, was merely pro forma. For example, the section entitled “Analysis of Previous Evaluation Results,” Ms. Jerman simply repeated the somewhat cryptic descriptions contained in the evaluation conducted a year earlier. Her own “Current Evaluation” included her observations that Mr. Johnson “looked well and appeared energetic with no indication of acute psychopathology present,” and that he engaged in what she termed “reciprocal conversation.” However, despite apparently telling Ms. Jerman that he was “happy,” Mr. Johnson went on to say that it was an affront to human nature for people to be in prison and that he would “help himself in anyway to be a free man.” She ended by noting that “he has been requesting general population; however, he is still an escape risk.”

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131. Note that the next “Psychological Evaluation for Annual Review—Restricted Housing Unit Placement” that was filed on August 11, 2008 and that purported to be a new evaluation conducted by another mental health worker, Christine Mancini, appears to be an exact replica and repeats exactly the same language as the evaluation filed the year before. In fact, the next actual “annual review” evaluation contained in the file I examined did not occur until October 4, 2010, almost four years since Ms. Jerman filed hers on January 12, 2007.
132. Unfortunately, the 2010 review, per Nancy Mayer, contained no new or meaningful psychological information either, in part because, by now, Mr. Johnson was refusing to participate in the process. Not only was the review devoid of psychological content (and focused on a detailed rehash of the escape attempt at SCI Pittsburgh in 1979, in which Mr. Johnson had participated and that resulted in his placement in isolation, now some 31 years earlier), but Ms. Mayer also repeatedly confused Mr. Johnson with someone named “Mr. Anderson.” She even did this in the final, concluding paragraph of her evaluation: “Mr. Anderson [sic] is serving a life sentence for Murder. In lieu of [sic] his poor record for escape attempts and possession of a weapon, it is unlikely he will be living in the community.”
133. Two years later, in a Psychological Evaluation for Annual RHU Psychological Report completed on January 13, 2012, Ms. Mayer (who now had clarified that Mr. Johnson was not “Mr. Anderson”) noted that “Mr. Johnson makes little to no conversation with this interviewer when attempting to speak with him in the RHU.” She nonetheless opined—apparently on the basis of nothing more than his past institutional record—that “Mr. Johnson’s presence in general population is

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not a good idea since he presents a risk to both staff and inmates.” The only basis provided for this conclusion was contained in her brief but evocative summary of events at SCI Pittsburgh that had occurred some 33 years earlier. This was the last psychological “evaluation” I could find in Mr. Johnson’s prison file.
133. Again, on August 19, 2013, a Psychological Evaluation for Annual RHU Psychological Report completed on Mr. Johnson. This one was conducted by two new evaluators, Nancy Mayer and Kenneth Ley (neither of whom list advanced degrees after their names). Here, too, the “analysis” that is presented lacks any psychological information or content whatsoever. Instead, Ms. Mayer and Mr. Ley recount the story of Mr. Johnson’s attempted escape from SCI Pittsburgh in 1979, and use it as the basis for concluding “Mr. Johnson’s presence in the general population is not a good idea since he presents a risk to both staff and inmates.” That risk is based on nothing more than the evaluators’ understanding of what happened 34 years earlier. It cannot have been based on anything Mr. Johnson told them because, as they note in their report, “Mr. Johnson continues to refuse conversation when this interviewer stops by his cell in the RHU.” Despite not having spoken with him, they submitted a “Psychological Evaluation for Annual RHU Psychological Report,” and made a recommendation about his retention in isolated confinement.
134. The documentation of these various mental health contacts and “evaluations” make clear that, unfortunately, Mr. Johnson has not had the benefit of any careful, meaningful mental health monitoring or evaluation from 2003 (and perhaps long before that, if ever) until 2015 (when the last entries in the file that I reviewed appeared). Except for supposedly “annual” reviews—that sometimes did not occur for several

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year intervals—Mr. Johnson has had primarily only superficial cell-front (or what inmates call "drive-by") contacts with mental health staff, most of whom, as far as I can tell, lacked advanced degrees in psychology. At least over the 10-year period they covered, even those yearly reviews appeared to be of questionable reliability and validity; they rarely if ever contained any meaningful psychological analysis or reflected any real appreciation of the significant risks of serious psychological harm to which Mr. Johnson was being subjected.
135. Indeed, the evaluators sometimes referred to Mr. Johnson by the wrong name, and sometimes repeated verbatim and at length the exact language that was used in a prior evaluation (and added little or nothing more of their own). The “mental health” conclusions and recommendations virtually always embraced a correctional rather than independent psychological perspective, justifying his continued decadeslong placement in isolation in terms of his past history, one dating back some 35 or more years.
136. In addition to their failure to provide careful, meaningful psychological monitoring and any in-depth assessments of the psychological effects of three-and-a-half decades of isolation on Mr. Johnson’s mental health or functioning, there is no evidence in the records that DOC mental health staff provided Mr. Johnson with any guidance or input about how to change or modify his behavior in such a way that he might improve his chances of being released from isolation and returned to general population. The one exception occurred when, as I noted, a mental health staff member encouraged Mr. Johnson to write his own step-down program or plan but then, when he complied, soon reverted to

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the use of boilerplate language to retain him in RHU, as if the step-down suggestion and his attempts to comply with it had never happened.
137. Repeatedly, instead of an independent psychological or mental health-oriented perspective, mental health staff appears to have consistently adopted a custody-oriented correctional approach to Mr. Johnson’s case. They did so without at any time explicitly acknowledging the severe psychological pain and significant risk of serious psychological harm that their recommendations and those of the other DOC officials imposed on him, by continuing to retain Mr. Johnson for decades living under these extremely harsh conditions of isolated confinement.
138. As an addendum to the mental health records that I reviewed, in my interview with him, Mr. Johnson told me that he had lost all faith and confidence in the mental health staff in the DOC. He said that he had decided years not to talk about anything meaningful with them because he did not trust them, after he saw “how treacherous they are.” As one example, he told me that one mental health staff person—Mr. Sacks, mentioned several times in the file, and who Mr. Johnson described to me as “a psychiatrist who wrote bad things about me”—was someone who had never actually talked to him—“he just made it up.”
139. However, Mr. Johnson said that recently at SCI Frackville, and in the wake of the Department of Justice investigation and recommendations, there was a mental health staff member who seemed to take a genuine interest in him and was more responsive to his expressed concerns about being released from isolation. He says that she made it a point to speak with others in the RHU as well. [There was no documentation in the file I reviewed of this contact with this staff member, so it is likely that it occurred very recently, sometime after the last date,

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July, 2015, of the records I was provided.] This staff member told him that she believed that he should be in a step down program, on his way to general population, but that correctional officials have ignored her recommendations to this effect. She apparently told him, “I tried, but they just won’t listen.”
140. It is my opinion that Mr. Johnson’s failure to receive meaningful mental health monitor and responsive care has added to the painfulness of his confinement. Mental health staff not only failed to meaningfully monitor his psychological health and attend to the adverse psychological effects of the long-term isolation to which he was being subjected but they also failed to provide him with guidance about what he could do to address what he made clear was causing him so much anguish—his retention in the RHU. It appears from the records that they mostly just ignored his pleas. With the exception of one mental health staff member who encouraged him to create and implement his own step down program (which seems to have resulted in little more than frustration on Mr. Johnson’s part when his efforts came to naught), and a mental health staff member who more recently told him that she “tried” but the prison officials “just won’t listen,” Mr. Johnson has received little solace, let alone meaningful guidance from the mental health staff over the years. In my opinion, this had added to his vulnerability, to his increasing frustration, and to his worsening sense of hopelessness and despair about his plight.
VI. THE PSYCHOLOGICAL EFFECTS OF MR. JOHNSON’S EXTRAORDINARILY PROLONGED ISOLATED CONFINEMENT

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141. As I noted above, despite being held in very severe isolation units for approximately 37 years, Arthur Johnson appears to have been given little or no careful mental health attention, evaluation, or treatment (at least over the approximately 10 year period for which documentation was available for me to review). In his personal interview with me, Mr. Johnson confirmed that this has been the case throughout his entire, lengthy period of confinement in various Pennsylvania DOC’s isolation units.
142. Mr. Johnson told me that there were times when he was singled out and treated especially badly—including what he remembers at three separate occasions when he was placed naked, “in the box” in the 1980s, inside the special glass cells at SCI Huntingdon (that eventually were closed), and another time when he was kept in a cell that had been built especially for him, in which correctional officers did constant monitoring and a bright light was kept on inside the cell around-the-clock. Otherwise, with the exception of about a year spent at the federal penitentiary in Lewisburg, Pennsylvania, he had been in one or another of these isolation units.
143. During this 37 year period, Mr. Johnson has spent all of his time locked in his cell, except for the five hours a week (one hour, five times a week) he is allowed to go to recreation pens, and the approximately 30 minutes he is allowed to shower (10 minute showers, three times a week). In each instance, when he is taken out of his cell, he is first placed in handcuffs, and tethered to a chain or leash, so that correctional officers can escort him (to yard or the showers). The Annex unit that he is in now is not much different from the other isolation units he has been housed in, except it has a hard plastic shield or covering on

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the outside of the cell door. As Mr. Johnson described it, “it makes it more closed in and you can’t really talk to people. If you try, you have to yell. Also, [you] can’t see in or out.” The front of the cell has one long slot for the correctional staff to see in. Otherwise, there is no visibility in or out. He said that there are still mentally ill prisoners in his unit on a long-term basis, despite the Department of Justice recommendations against this practice. He said, “I have, now, guys in my unit who are screaming, banging on the door, hearing voices.” Apparently, the only prisoners who are removed from the unit are those who are overtly suicidal.
144. On rare occasions—he estimated no more than once every couple years—he has received a social visit from a family member or loved one. Because he has been housed in an isolation unit for the last 37 years, these visits have all been conducted on a non-contact basis. As he told me, “the last time I shook someone’s hand or hugged somebody was 1979.” Mr. Johnson also told me that no one in his immediate family is still alive. As I noted, he never knew his mother, who died when he was very young. His grandmother (who raised him), his father, and his two brothers are now all deceased, having died while he was in isolation.
145. In one of the saddest moments in my interview with him, Mr. Johnson told me that no prison officials had come to him to notify him on the occasions of his family members’ deaths, and that he received no special bereavement phone calls to home in the wake of their passing. Instead, he learned unceremoniously through letters he received from other family members, telling him that these key people in his life had passed away. He was left to mourn these profound losses by himself, alone in his cell. As a result of these deaths, he said, there are now only a few family members left who know, and very few people who can come visit

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him. Clearly, during the time he has been held in isolation he has lost his most intimate and important relationships and, in fact, nearly all of his connections to the outside world.
146. Mr. Johnson’s exceptional resilience has enabled him to somehow endure this extraordinarily long period of isolation. But the ordeal has finally worn him down psychologically. He told me that he has undergone many changes over the years, losing his bitterness and also his “fight.” Beyond that, however, he has also begun to lose his will to go on. He said simply, “I can’t stand to live like this.” He said he sits in his cell, and cannot shake the feeling that “this is no way to live” and that his life is “terrible, terrible, terrible.” He also now fears losing his mind: “I don’t want to be crazy. I want to hold onto my self respect. [I] just keep trying, but it is a struggle, all the time. [I am] fighting depression.
147. Mr. Johnson told me that he was raised not to complain about things, and that he has tried not to complain about his treatment. Even now, when he feels as though he is going crazy, he fights against it— “strong men don’t complain, they just endure.” And, yet, when I asked him about whether there were any specific symptoms that were bothering him, now, while in isolation, he was able recognize and acknowledge a great many of them. The wide range of maladies and signs of dysfunction he reported are associated with psychological trauma and stress and a number of psychopathological reactions that often occur in isolated confinement.
148. The pattern was one very similar to ones I have recorded among many prisoners who have served very long terms in solitary confinement (although, as I said, few prisoners in my experience have ever served as long in isolation as Mr. Johnson). It is my opinion that the

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extraordinary length of isolated confinement, combined with Mr. Johnson’s now-advanced age, have rendered him especially susceptible to both the emotional pains and psychological risks of this extremely harsh and severe form of imprisonment.
149. Mr. Johnson reported that he suffers from sleeplessness that has gotten progressively worse over the years. Even when his unit is relatively quiet at night, he said, he still lies awake in bed, unable to sleep. Recently he said he has been feeling that he is on the verge of an emotional breakdown, and he has struggled to ward off those feelings. He said that when he was young his grandmother would tell him during hard times that “tomorrow will be a better day,” so he tries to go to sleep to bring that day around sooner, but this technique no longer works and he is worried about where these feelings will lead. He also reported that he is regularly bothered by ruminations—he is not able to control what he thinks about or make bad thoughts go away. They get stuck in his mind, and remain, no matter what he does to try to distract himself. On the other hand, he has experienced increasing difficulty concentrating or focusing his attention on the things he wants to focus on or accomplish. He is very worried that his attention wanders constantly, no matter how hard he tries, he cannot stay focused long enough to write long letters, or read for any significant period of time, and he is very forgetful. All of these are new developments they concern him very much. In fact, he is extremely worried about what he perceives as his overall physical and mental deterioration in isolation— that it has taken an irreversible toll on him.
150. In addition, Mr. Johnson reported that he recently has become increasingly irritable over small or minor things that in the past would not have bothered him. Notably, he reported that he now struggles

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greatly with depression. He said, “I try to go to sleep to make it go away, or do something” to distract himself from the feelings of hopelessness, but “it doesn’t work well anymore.” He assured me that he is not actively suicidal but then he qualified that statement by saying “I don’t care about living or dying anymore. I know prison is bad, but sometimes you feel like you can’t take living like this.”
VII. CONCLUSION: Arthur Johnson’s Long-Term Solitary Confinement Cruelly Inflicts Extreme Psychological Pain and Lasting Damage That Derives In Large Part From the Experience of Social Death To Which It Has Subjected Him
152. The principles that are now used to limit the use of solitary confinement—that exposure should be brief, employed only when absolutely necessary and as a last resort, and that vulnerable populations should be entirely excluded from such confinement—are being flagrantly violated in this case. Arthur Johnson has been kept in solitary confinement for an extraordinary amount of time—an amount that greatly exceed any of the limits recommended or countenanced by any legal, mental health, or human rights organization of which I am aware.
153. The events that are presumably being used to justify his continued isolation occurred in 1979. The record of his confinement over the last 13 years that I reviewed contained no evidence of dangerous or disruptive behavior that could possibly justify continued isolation. Thus, there is no convincing showing of any remotely plausible necessity or need at the present time.
154. Mr. Johnson’s advanced age and psychological frailty now render him especially vulnerable to the pains and harms of continued

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isolated confinement. Despite his numerous “contacts” with mental health staff (overwhelmingly cell-front), he has received no more than superficial psychological monitoring and care. From the records I reviewed, he does not appear to have been given a clear explanation for why he continues to be kept for decades in isolation (despite years of conforming behavior), and has not been provided with any opportunity or pathway to change his circumstances (i.e., he has not been told what he can do to make his suffering end). The fact that he continues to be subjected to severe psychological pain without a clear rationale or the means with which to reduce or end it creates a feeling of helplessness that exacerbates the pain of his confinement.
155. Arthur Johnson is now approaching his mid-60s and has spent more than half of his life—virtually all of his adult life—living in isolation, alone in his cell. Notwithstanding his significant resiliency and past ability to withstand his harsh and deprived conditions of confinement without completely breaking down or decompensating psychologically, his age-related psychological vulnerability has placed him in an especially precarious and dangerous state. As I noted earlier, Mr. Johnson is suffering from what can be termed “social death”—having few if any meaningful social contacts from which to derive nurturing support for so many years, and becoming acutely aware of the deep and irreplaceable losses he suffered throughout this long ordeal. His dwindling connections to family, friends, and others—all of his immediate family members died during the decades that Mr. Johnson was in isolation—and his increasing inability to function as a social being have left him deeply sad and profoundly alone.

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 Case 1:16-cv-00863-CCC Document 4 Filed 05/12/16 Page 1 of 31

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

ARTHUR JOHNSON

:

:

Plaintiff,

:

v.

: :

JOHN WETZEL, Secretary of the

:

Pennsylvania Department of Corrections (DOC); SHIRLEY

: :

MOORE-SMEAL, Executive Deputy :

Secretary of the DOC; MICHAEL WENEROWICZ, Regional Deputy

: :

Secretary of the DOC; BRENDA TRITT, Superintendent SCI Frackville;

: :

JAMES MEINTEL, Deputy Superintendent SCI Frackville;

: :

ANTHONY KOVALCHIK, Deputy Superintendent SCI Frackville

: :

Case No.
ELECTRONICALLY FILED JURY TRIAL DEMANDED

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS Page
I. Introduction.....................................................................................................1 II. Statement of Facts...........................................................................................2 III. Statement of the Questions Involved..............................................................4 IV. Argument ........................................................................................................5
A. Mr. Johnson is likely to succeed on the merits. ...................................5 1. Mr. Johnson’s excessively lengthy incarceration in solitary confinement has deprived him of basic human needs. .......................................................................................... 7 2. Defendants are deliberately indifferent to the deprivations of Mr. Johnson’s basic human needs and the substantial risk of serious harm to his health from his extended solitary confinement. ................................................13
B. Mr. Johnson is suffering irreparable harm that will be exacerbated if the injunction is denied...............................................18
C. The balance of equities and the public interest favor Mr. Johnson ...............................................................................................20
V. Conclusion ....................................................................................................22
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TABLE OF AUTHORITIES
Page
CASES
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153 (3d Cir. 1999) .................................................................................4
Ashker v. Brown, No. 4:09-cv-5796, Dkt. No. 191, Order Denying Mot. to Dismiss (N.D. Cal. Apr. 9, 2013) .....................................................................................10
AT&T v. Winback & Conserve Program, 42 F.3d 1421 (3d Cir. 1994) ...............................................................................19
Buck v. Stankovic, 485 F. Supp. 2d 576 (M.D. Pa. 2007).................................................................19
Coble v. Damiter, Civ. No. 3:11-CV-1276, 2012 WL 3231261 (M.D. Pa. June 27, 2012) .....................................................................................................................6
Davis v. Ayala, 135 S. Ct. 2187 (2015)........................................................................................20
Elrod v. Burns, 427 U.S. 347 (1976)............................................................................................18
Farmer v. Brennan, 511 U.S. 825 (1994)....................................................................................5, 6, 12
Harper v. Showers, 174 F.3d 716 (5th Cir. 1999) ..............................................................................11
Helling v. McKinney, 509 U.S. 25 (1993)................................................................................................6

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Hutto v. Finney, 437 U.S. 678 (1978)..............................................................................................6
Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) .................................................................................4
Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) 11 C.......................................................................18
Nami v. Fauver, 82 F.3d 63 (3d Cir. 1996) .....................................................................................6
Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) .........................................................................7, 12
Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999)..............................................................8, 10
Shoatz v. Wetzel, No. 2:13-cv-0657, 2016 WL 595337 (W.D. Pa. 2016) ........................................8
Stilp v. Contino, 629 F. Supp. 2d 449 (M.D. Pa. 2001)...............................................................4, 5
Union Cnty. Jail Inmates v. Di Buono, 713 F.2d 984 (3d Cir. 1983) ...............................................................................12
Wilkerson v. Stalder, 639 F. Supp. 2d 654 (M.D. La. 2007)..........................................................passim
Wilson v. Seiter, 501 U.S. 294 (1991)..........................................................................................5, 6
Young v. Quinlan, 960 F.2d 351 (3d Cir. 1992) .................................................................................7
STATUTES
42 U.S.C. § 1983....................................................................................................1, 5

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OTHER AUTHORITIES
11 C. Wright & A. Miller, Federal Practice and Procedure, § 2948, at 440 (1973)...........................................................................................................19
Atul Gawande, Hellhole: The United States Holds tens of thousands of inmates in long-term solitary confinement. Is this torture?, The New Yorker, March 30, 2009 .............................................................................13
Erica Goode, Solitary Confinement: Punished for Life, N.Y. Times, Aug. 3, 2015........................................................................................................13
Fed. R. Civ. P. 65(a)...................................................................................................1
Jason Stromberg, The Science of Solitary Confinement: Research tells us that isolation is an ineffective rehabilitation strategy and leaves lasting psychological damage, Smithsonian Magazine, www.smithsonianmag.com/science-nature/science-solitaryconfinement-180949793/?no-ist (Feb. 19, 2014) ...............................................13
Kirsten Weir, Alone, in ‘the hole’: Psychologists probe the mental health effects of solitary confinement, Monitor on Psychology v.43, no. 5 at 54 (May 2012)........................................................................................13
Laura Matter, Hey, I think We’re Unconstitutionally Alone Now: The Eighth Amendment Protects Social Interaction as a Basic Human Need, 14 J. Gender Race & Justice 265, 290-91 (2010).......................................9
Richard H. Walters, John E. Callagan, and Albert F. Newman, Effect of Solitary Confinement on Prisoners, The American Journal of Psychiatry, v. 119, issue 8 at 771 (1963)............................................................13
Stephen J. Suomi, Harry F. Harlow, and S. David Kimball, Behavioral Effects of Prolonged Partial Social Isolation on the Rhesus Monkey, Psychological Reports 29, at 1171-1177 (1971)..................................14

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Stuart Grassian and Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, Int’l J. of Law and Psychiatry v. 8, issue 1 at 49-56 (1986) ......................................................13
Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J. Psychiatry 1450 (1983). ...................................................................14
UN Special Rapporteur on torture calls for the prohibition of solitary confinement, United Nations Human Rights Office of the High Commissioner (Oct. 18, 2011)............................................................................13

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Case 1:16-cv-00863-CCC Document 4 Filed 05/12/16 Page 7 of 31

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

ARTHUR JOHNSON

:

:

Plaintiff,

:

v.

: :

JOHN WETZEL, Secretary of the Pennsylvania Department of

: :

Corrections (DOC); SHIRLEY MOORE-SMEAL, Executive Deputy

: :

Secretary of the DOC; MICHAEL WENEROWICZ, Regional Deputy

: :

Secretary of the DOC; BRENDA TRITT, Superintendent SCI Frackville;

: :

JAMES MEINTEL, Deputy Superintendent SCI Frackville;

: :

ANTHONY KOVALCHIK, Deputy Superintendent SCI Frackville

: :

Case No.
ELECTRONICALLY FILED JURY TRIAL DEMANDED

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION I. INTRODUCTION The Pennsylvania Department of Corrections (“DOC”) placed plaintiff, Mr. Arthur Johnson (“Mr. Johnson”) in solitary confinement when Jimmy Carter was President. For the past 36 years, it has held him in solitary confinement with no reasonable justification. Each day he remains segregated inflicts substantial and irreparable harm. The extreme conditions and length of his confinement, taken together, constitute cruel and unusual punishment in violation of the Eighth and

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Fourteenth Amendments of the U.S. Constitution1 and therefore are actionable under 42 U.S.C. § 1983. Excessive solitary confinement—without a legitimate penological purpose, and there is none here—offends public policy and violates substantive due process.
An injunction is necessary to prevent defendants from continuing to inflict permanent harm on Mr. Johnson. Mr. Johnson requests, pursuant to Fed. R. Civ. P. 65(a), this Court issue a preliminary injunction mandating Defendants: (1) begin a court-approved “step down” process to provide him with immediate social interaction and environmental stimulation, and quickly reintegrate Mr. Johnson into general population; and (2) provide appropriate counseling to begin to address the serious psychological effects that Mr. Johnson is experiencing as a result of his more than three decades in isolation. II. STATEMENT OF FACTS
The DOC placed Mr. Johnson in solitary confinement on December 22, 1979 for his alleged participation in a prison escape attempt at SCI Pittsburgh. (Ex. B, Johnson Decl. ¶ 4). He was 26 years old. Aside from a period of less than 6 months between late 1989 and early 1990 which Mr. Johnson spent in a United States Bureau of Prisons (“BOP”) facility, Mr. Johnson has remained in solitary
1 Mr. Johnson also asserts that Defendants have violated his Due Process rights under the Fifth and Fourteenth Amendments, but that claim is not the subject of this motion.

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confinement ever since—for over 36 years. (Id. ¶¶ 4-14). Mr. Johnson, now 63 years old, is in solitary confinement in the Restricted Housing Unit (“RHU”) at the Pennsylvania State Correctional Institution at Frackville (“SCI Frackville”).
Mr. Johnson spends 23 hours a day, or more, in a 7 by 12 foot cell. (Id. ¶¶ 16, 19). He leaves his cell only to shower alone in a stall for 10 minutes, three times per week, and for outdoor “recreation,” alone in a cage about the same size of his cell for one hour, five days per week, weather permitting. (Id. ¶ 18). If weather does not permit outdoor “recreation,” Mr. Johnson is not offered indoor “recreation,” but remains in his cell for 24 hours that day. Mr. Johnson is not given access to exercise equipment.
Mr. Johnson’s cell has been illuminated 24 hours a day, every day, for the past 36 years. (Id. ¶ 17). Since 1995, his cell door has been solid with only a single thin window. (Id. ¶ 26). Mr. Johnson cannot speak to other inmates, as doing so requires yelling to the next cell, which is forbidden. (Id. ¶¶ 27-28). He is allowed a limited number of phone calls per month (sometimes as few as one), and all his visits are non-contact. (Id. ¶ 24). Aside from incidental contact with prison staff, which includes mandatory strip searches when he leaves his cell, Mr. Johnson has not touched another person in 36 years. (Id. ¶¶ 23-25).
The shocking length of time Mr. Johnson has endured these inhumane conditions has left him with a number of debilitating physical, psychological, and

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emotional maladies. As Plaintiff’s expert, Dr. Craig Haney, points out in his report, attached hereto as Exhibit A, Mr. Johnson suffers from crippling anxiety, memory loss, loss of empathy, inability to concentrate, and depression. (Haney Decl. ¶¶ 19-21). Mr. Johnson struggles to get out of bed each morning, but also has difficulty sleeping. (Johnson Decl. ¶¶ 33-34). He cannot concentrate to write detailed letters, or read a book—once his favorite pastimes—and suffers from short-term memory loss. (Id.¶¶ 36-38). He fights depression and feels hopeless about the future. Drawing on his decades of experience and research in to solitary confinement, Professor Haney opines: “Mr. Johnson’s situation is almost unique in its severity.” (Haney Decl. ¶ 18).
Defendants lack any legitimate penological purpose for Mr. Johnson’s continued solitary confinement. Mr. Johnson has not had a serious disciplinary infraction for over 25 years. (Johnson Decl. ¶ 44). Despite repeated requests, Defendants have not explained why he continues to be housed in solitary confinement, or how he may secure release to general population. (Id. ¶¶ 42-43). Mr. Johnson is committed to participating in whatever program is necessary to reenter general population. (Id. ¶ 51). His nightmare must end. III. STATEMENT OF THE QUESTIONS INVOLVED
A. Whether Mr. Johnson is likely to succeed on the merits of his Eighth Amendment claim. Suggested Answer: Yes.

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B. Whether Mr. Johnson is suffering, and will continue to suffer, irreparable harm if a preliminary injunction is denied. Suggested Answer: Yes.
C. Whether the balance of the equities and public policy favor granting the requested preliminary injunction in favor of Mr. Johnson. Suggested Answer: Yes.
IV. ARGUMENT “A party seeking a preliminary injunction must show: (1) a likelihood of
success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)). Here, all of these factors favor a preliminary injunction.
A. Mr. Johnson is likely to succeed on the merits. The Court’s first inquiry is whether Mr. Johnson has a “reasonable probability of success on the merits.” Allegheny Energy, Inc., 171 F.3d at 158. To meet this burden, the moving party must present “sufficient evidence to satisfy the essential elements of the underlying cause of action.” Stilp v. Contino, 629 F. Supp. 2d 449, 457 (M.D. Pa. 2001). “The mere possibility that the claim might be defeated does not preclude a finding of probable success.” Id. Mr. Johnson is

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likely to succeed on the merits of his Eighth Amendment claim under 42 U.S.C. § 1983, as his three-and-a-half decades of incarceration in solitary confinement constitutes cruel and unusual punishment.
Conditions of prisoner confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832-34 (1994). Pursuant to the Eighth Amendment’s prohibition on cruel and unusual punishment, prison officials must ensure inmates are held in “humane” conditions. Id. at 832 The Supreme Court has set forth a two-pronged inquiry. Id. at 834. First, the conditions to which a prisoner is subjected must be objectively “serious,”—a denial of “the minimal civilized measure of life’s necessities” or posing a “substantial risk of serious harm.” Id. at 834. Second, the prison official must be subjectively culpable— showing “‘deliberate indifference to inmate health or safety.’” Id.
To satisfy the objective component, a plaintiff must show a deprivation of a single, identifiable human need, such as health, safety, or exercise. Wilson v. Seiter, 501 U.S. 294, 304 (1991). A court may also consider a combination of conditions if the combination produces a “mutually reinforcing effect” resulting in a deprivation of a single, identifiable human need. Id. The Eighth Amendment also protects against future harm, where conditions “pose an unreasonable risk of serious damage to [the prisoner’s] future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993).

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The subjective component requires prison officials be deliberately indifferent to the identified deprivations or risks. Farmer, 511 U.S. at 834. A defendant is deliberately indifferent when he or she “knows of and disregards” a deprivation or “an excessive risk to inmate health or safety.” Id. at 837. To disregard a deprivation or risk means to “fail[] to take reasonable measures to abate it.” Id. at 847.
Prison officials cannot “choose to remain deliberately indifferent to an excessive or substantial or serious risk of harm to inmates.” Coble v. Damiter, Civ. No. 3:11-CV-1276, 2012 WL 3231261, *8-*9 (M.D. Pa. June 27, 2012). Accordingly, courts properly infer deliberate indifference when the plaintiff proves the risk or deprivation was “obvious.” Farmer, 511 U.S. at 842.
1. Mr. Johnson’s excessively lengthy incarceration in solitary confinement has deprived him of basic human needs.
“The length of confinement [in isolation] cannot be ignored in deciding whether confinement meets constitutional standards.” Hutto v. Finney, 437 U.S. 678, 686 (1978); Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (considerations relevant to the Eighth Amendment test “include the length of confinement, the amount of time prisoners must spend in their cells each day, sanitation, lighting, bedding, ventilation, noise, education and rehabilitation programs, opportunities for activities outside of cells, . . .”); Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (superseded by statute on other grounds) (“The duration and conditions of

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segregated confinement cannot be ignored in deciding whether such confinement meets constitutional standards.”); Peterkin v. Jeffes, 855 F.2d 1021, 1025 (3d Cir. 1988) (“objective factors which a court must examine in prison conditions cases include basic human needs such as . . . length of confinement, and out-of-cell time.”). Solitary confinement in any duration—and particularly in an extreme duration such as this—deprives inmates of the basic human needs of social interaction, environmental stimulation, mental health, sleep, and exercise. (Haney Rpt. ¶¶ 87-91). Mr. Johnson has endured these deprivations for 36 years. Mr. Johnson, therefore, satisfies the objective component of an Eighth Amendment claim. See Wilkerson v. Stalder, 639 F. Supp. 2d 654, 679 (M.D. La. 2007).
(a) Mr. Johnson has been deprived of the basic human needs of social interaction and environmental stimuli.
Defendants have deprived Mr. Johnson of all human interaction and environmental stimulation for more than three decades. As set forth above, Mr. Johnson spends no less than 23 hours per day in his cell, alone. (Johnson Decl. ¶¶ 15). He takes all his meals there, alone. (Id. ¶ 21). He is not permitted to touch any visitors, ever; and aside from strip searches and other incidental contact with his captors, he has not touched another human for over 36 years. (Haney Rpt. ¶ 144; Johnson Decl. ¶¶ 24-25). Mr. Johnson’s entire immediate family is deceased, and he only learned of his loved ones, deaths through letters from other

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family members. (Haney Rpt. ¶ 114-145). He was given no bereavement phone calls, and was left to mourn these losses alone in his cell. (Haney Rpt. ¶ 145).
Since 1995, Mr. Johnson’s cell door has been solid with windows permitting only a constricted peak into the hall. (Johnson Decl. ¶ 26). For the past 21 years, he only sees other inmates when he is moved quickly through general population. He showers alone, exercises (such as it is) in a cage alone, is not permitted to participate in prison programs, and is not permitted to speak with other inmates. (Id. ¶¶ 15-22).
Social interaction and environmental stimulation are basic human needs. Wilkerson, 639 F. Supp. 2d at 677-678, Ruiz v. Johnson, 37 F. Supp. 2d 855, 91415 (S.D. Tex. 1999) rev’d on other grounds, 243 F. 3d 941 (5th Cir. 2001), adhered to on remand 154 F. Supp 2d 975 (S.D. Tex 2001), Shoatz v. Wetzel, No. 2:13-cv-0657, 2016 WL 595337 at *8 (W.D. Pa. 2016) (summary judgment denied after finding plaintiff produced sufficient evidence that “over 22 years in consecutive solitary confinement constitutes a sufficiently serious deprivation of at least one basic human need, including but not limited to sleep, exercise, social contact and environmental stimulation.”).

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The almost total limitation on human interaction imposed on Mr. Johnson
over several decades is a deprivation of what it means to be human.2 As the
Wilkerson court stated: “The cumulative effect of over 28 years of confinement in
lockdown [in solitary confinement] constitutes a sufficiently serious deprivation of
at least one basic human need, including but not limited to sleep, exercise, social
contact and environmental stimulation. It is obvious that being housed in isolation
in a tiny cell for 23 hours a day for over three decades results in serious
deprivations of basic human needs.” Wilkerson, 639 F. Supp. 2d at 679.
Just as in Wilkerson, Mr. Johnson was held in isolation (save for several
weeks in a BOP facility) “in a tiny cell for 23-24 hours per day for over three
decades.” Id. As in Wilkerson, he has, by that very fact, “obvious[ly]” been
deprived of basic human needs. Id.
(b) The Isolation Imposed On Mr. Johnson for Over Three Decades Has Seriously Harmed His Mental Health
Mr. Johnson’s pervasive isolation has lead to cognitive impairment, chronic
depression, emotional pain and suffering, and other psychological harms. (Haney
2 See Haney Rpt. ¶¶ 47-51 (summarizing scientific research demonstrating humans have a basic “need to connect”). See also Mathew Lieberman, Social: Why are Brains are Wired to Connection (2013); Laura Matter, Hey, I think We’re Unconstitutionally Alone Now: The Eighth Amendment Protects Social Interaction as a Basic Human Need, 14 J. Gender Race & Justice 265, 290-91 (2010) (summarizing research on fundamental role of social interaction in human cognition).

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Rpt. ¶¶ 141-150). Various courts have found the Eighth Amendment protects against segregation that causes a serious deprivation of mental health over a prolonged period. Ruiz v. Johnson, 37 F. Supp. 2d 855, 914 (S.D. Tex. 1999) (“extreme levels of psychological deprivation” cause “pain and suffering,” (reversed on other grounds)); Wilkerson supra, Shoats supra, Ashker v. Brown, No. 4:09-cv-5796, Dkt. No. 191, Order Denying Mot. to Dismiss, *9 (N.D. Cal. Apr. 9, 2013) (“Plaintiffs’ asserted injuries --- the symptoms of which include ‘chronic insomnia,’ ‘severe concentration and memory problems,” ‘anxiety,’ and other ailments – are sufficient to satisfy the objective component of their Eighth Amendment claim, considering the length of Plaintiffs’ exposure to these conditions.”).
Quite understandably, Mr. Johnson suffers from increasing hopelessness, depression and anxiety, declining short-term memory, and an inability to perform even basic mental tasks such as reading and writing, for more than a few minutes. (Haney Rpt. ¶¶ 21, 146-150; Johnson Decl. ¶¶ 30-33, 37). All of these symptoms, suffered over 36 years in isolation, demonstrate a serious deprivation of mental health—an established identifiable human need.

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(c) Mr. Johnson’s grossly excessive time in solitary confinement has deprived him of sleep, resulting in long-term psychological damage.
Mr. Johnson has increasingly crippling insomnia as a result of his isolation. (Haney Rpt. ¶ 149; Johnson Decl. ¶ 34). A light remains on inside Mr. Johnsons’ cell 24 hours per day. (Johnson Decl. ¶ 17). He wakes frequently and has difficulty falling back asleep, sleeping at most only four to five hours every night. “[S]leep undoubtedly counts as one of life’s basic needs.” Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999). Deprivation of sleep, coupled with the other deprivations to which he is subjected, constitutes a deprivation of an identifiable human need.
(d) Mr. Johnson’s lack of exercise and severely limited movement has negatively affected his health.
Mr. Johnson cannot maintain his basic physical health. He spends no less than 23 hours per day in an 84 square foot cell. Most of his cell is taken up by a bunk, sink, toilet and a desk. There is little space for movement of any kind. Mr. Johnson is not provided with exercise equipment. Aside from showers, Mr. Johnson leaves his cell a maximum of 5 times per week, one hour each time, for outdoor “recreation” in an outdoor cage roughly the size of his cell. This only occurs weather permitting and if the prison is not on lockdown. During outdoor “recreation,” Mr. Johnson is not provided exercise equipment. (Johnson Decl.

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¶ 20). If outdoor “recreation” is cancelled, there is no opportunity for indoor “recreation.” Mr. Johnson is left in his cell.
Mr. Johnson cannot walk, run, or exercise in any way essential to physical health. This is a deprivation of an identifiable human need, both on its own and in conjunction with the other deprivations detailed herein. The Third Circuit has held that the amount of time that a prisoner spends out of his cell is a critical factor in assessing whether his confinement violates the Eighth Amendment. Peterkin, 855 F.2d at 1025 (listing “how much time prisoners must spend in their cells each day” and “the opportunities for inmate activities outside of the cells” as factors “we must consider.” (internal quotation marks and citations omitted)); Union Cnty. Jail Inmates v. Di Buono, 713 F.2d 984, 1000 (3d Cir. 1983). Mr. Johnson’s extended confinement in RHU raises serious Eighth Amendment issues.
2. Defendants are deliberately indifferent to the deprivations of Mr. Johnson’s basic human needs and the substantial risk of serious harm to his health from his extended solitary confinement.
Deliberate indifference can be inferred when the risk of harm is obvious. Farmer, 511 U.S. at 842. As noted by the court in Wilkerson, the risks of 36 years in solitary confinement are so obvious no reasonable person can claim to be unaware of them. Wilkerson, 639 F. Supp. 2d at 679. Accordingly, this Court can and should infer that Defendants know the risks posed by prolonged solitary confinement.

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The ruinous effects of long term isolation are not new or unknown concepts, nor are they debated. (Haney Rpt. ¶¶ 25-26, ¶¶ 30-76). The United Nations has called for all countries to ban solitary confinement in excess of 15 days, saying “the severe mental pain or suffering solitary confinement may cause, it can amount to torture or cruel, inhuman or degrading treatment or punishment.” UN Special Rapporteur on torture calls for the prohibition of solitary confinement, United Nations Human Rights Office of the High Commissioner (Oct. 18, 2011), www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11506&LangI D=E. The negative effects of prolonged solitary confinement are widely researched and reported on in both scientific journals and the mainstream media.3

3 See, e.g., Erica Goode, Solitary Confinement: Punished for Life, N.Y. Times, Aug. 3, 2015, at D1; Atul Gawande, Hellhole: The United States Holds tens of thousands of inmates in long-term solitary confinement. Is this torture?, The New Yorker, March 30, 2009; Jason Stromberg, The Science of Solitary Confinement: Research tells us that isolation is an ineffective rehabilitation strategy and leaves lasting psychological damage, Smithsonian Magazine, www.smithsonianmag.com/science-nature/science-solitary-confinement180949793/?no-ist (Feb. 19, 2014); Stuart Grassian and Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, Int’l J. of Law and Psychiatry v. 8, issue 1 at 49-56 (1986); Richard H. Walters, John E. Callagan, and Albert F. Newman, Effect of Solitary Confinement on Prisoners, The American Journal of Psychiatry, v. 119, issue 8 at 771-771 (1963); Kirsten Weir,
Alone, in ‘the hole’: Psychologists probe the mental health effects of solitary confinement, Monitor on Psychology v.43, no. 5 at 54 (May 2012).

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Indeed, the psychological effects of extreme isolation have been discussed since at least the 1960s,4 with the first extensive U.S. study published in 1983. Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J. Psychiatry 1450 (1983). Dr. Grassian’s study, conducted using volunteer longterm prisoners, and placing them in solitary confinement cells for period of mere days, found solitary confinement leads to “perceptual distortions, hallucinations, hyperreponsivity to external stimuli, aggressive fantasies, overt paranoia, inability to concentrate, and problems with impulse control.” Id. All of this illustrates the obvious and well-known nature of the serious negative ramifications of 36 years of isolation. Accordingly, this Court may assume Defendants possess such knowledge.
Despite this knowledge, Defendants hold Mr. Johnson in isolation without penological purpose. Mr. Johnson has not been accused of a violent, or even serious, disciplinary infraction for over 25 years. (Johnson Decl. ¶ 44). Since the 1980s, Mr. Johnson has been accused of three minor infractions. (See id. ¶¶ 45-48). While Mr. Johnson’s records indicate he expressed a desire to leave prison more

4 See Stephen J. Suomi, Harry F. Harlow, and S. David Kimball, Behavioral Effects of Prolonged Partial Social Isolation on the Rhesus Monkey, Psychological Reports 29, at 1171-1177 (1971) (“Prolonged social isolation has long been thought to predispose psychopathological behavior in humans. In monkeys, this hypothesis has been verified empirically (Harlow & Harlow, 1962; Mason & Sponholz, 1963; Rowland, 1964 . . .).”)

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than ten years ago, he recognizes that any ability to leave prison must come through the courts. (See id. ¶ 49). Further, the same therapists who wrote reports of his desire to leave prison began the process of transitioning Mr. Johnson out of isolation. (Ex. C. (records showing transition recommended)).
When Mr. Johnson has asked why he remains in solitary after decades of good conduct, Defendants have presented no basis beyond thirty-year-old disciplinary infractions. (See Haney Rpt. ¶ 90; Johnson Decl. ¶ 42). That these decades-old infractions remain the sole basis for his isolation is supported by Mr. Johnson’s review record, which offers only incidents in 1979 and 1984 as bases for refusal to release him to general population. (See, e.g., Ex. D. 8/19/2013 Annual RHU psychological report; see also Haney Rpt. ¶¶ 92-111 (noting bases for refusal to release Mr. Johnson to general population and reliance upon 20 year old incidents)). Many of the reports in Mr. Johnson’s file even note “[g]ood housing reports,” indicating Mr. Johnson demonstrates positive inmate behavior. (Ex. E).
Mr. Johnson now acknowledges his upbringing and thought processes upon arrival in prison are likely the cause of past inappropriate behavior, and success in the prison system requires he abandon the lessons of his childhood. (Haney Rpt. ¶ 86). Such a recognition is strong evidence Mr. Johnson now possesses the tools
(continued…)

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necessary for a successful re-entry to general population. However, Mr. Johnson is, and will always be, powerless to change incidents that occurred and mistakes he made in his youth. (See id. ¶ 103). The DOC’s reliance upon these incidents to refuse to release Mr. Johnson to general population indicates its readiness to hold him in solitary confinement for the rest of his life, regardless of his current or future behavior.
Under the DOC’s administrative custody policy, each Defendant plays a role in determining Mr. Johnson’s continued solitary confinement. (See Ex. F, DCADM 8012 §§ 1(C) & 4(B)). Mr. Johnson is on DOC’s Restricted Release List (“RRL”). (Id.). Since 2012, DOC provides RRL prisoners with an annual review of their RRL status. (Id.). While all defendants cast a vote as to whether Mr. Johnson will remain in solitary confinement, the ultimate decision is made by Secretary Wetzel. (Id.) Since 2012, Defendant Wetzel has continued Mr. Johnson’s isolation despite his knowledge that he has been in isolation since 1979, that such extraordinarily long solitary confinement is inherently harmful, and that any penological basis for his isolation expired long ago. Defendant Wetzel has never provided Mr. Johnson with any notice of the reasons for his continued solitary confinement. This is the height of deliberate indifference.
The evidence shows Mr. Johnson has satisfied all elements of his Eighth Amendment claim. He suffers deprivations of identifiable human needs, and

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Defendants are deliberately indifferent to these deprivations. The serious deprivations caused by 36 years in isolation, which include deprivations of mental and physical health, human interaction and environmental stimulation, and sleep, are so obvious Defendants cannot claim to be ignorant of them. Despite their knowledge, Defendants continue to hold Mr. Johnson in isolation without penological purpose. Mr. Johnson is likely to succeed on the merits of this Eighth Amendment claim.
B. Mr. Johnson is suffering irreparable harm that will be exacerbated if the injunction is denied.
Professor Haney’s report documents the irreparable harm Mr. Johnson suffers each day. Mr. Johnson is exceptionally resilient, but the excessive period he has endured in solitary confinement has broken him down to the point that continued isolation will lead to irreparable mental harm. (Haney Rpt. ¶ 146). Long-successful coping techniques involving hope for the future and turning to books and other outlets to pass time, have begun to fail as Mr. Johnson is given no explanation for his continued residence in RHU, and no hope of ever being released. (Id. ¶¶ 146-150). He is experiencing increasing hopelessness, depression, and feelings of an impending mental breakdown he cannot control. (Id.) Mr. Johnson’s advancing age makes him even more susceptible to irreversible mental decline due to his isolation. (Id. ¶¶ 148,154). Mr. Johnson’s fragile psychological state is at a critical point. Should this Court deny this motion

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for preliminary injunction, Mr. Johnson’s complete and irreversible mental collapse is inevitable.
Despite being in extreme isolation for over 36 years, the DOC has not provided Mr. Johnson with more than cursory and superficial mental health attention. As outlined in detail in Section VI of Professor Haney’s Report, DOC’s practice is to provide routine, “cell front” well-being checks as the primary means of monitoring Mr. Johnson’s mental health. (Id. ¶ 114). Any more in-depth examinations have been superficial, the results being little more than foregone conclusions. (Id. ¶¶ 112-40). Many of the reports from these “examinations” simply quote verbatim previous examination reports, and a few even refer to Mr. Johnson by the wrong name. (Id. ¶ 135).
These “examinations” fall woefully short of what Mr. Johnson requires to remedy the extreme harm Defendants have caused through their inexplicable refusal to release him from isolation for 36 years. (Id. ¶ 140). Mr. Johnson is in need of intensive and personalized therapy in order to begin to reverse the psychological wounds Defendants have inflicted upon him. A refusal to grant a preliminary injunction will result in a continued failure to address his serious and declining mental health issues: an irreparable harm that cannot be denied.5

5 The violation of a constitutional right in and of itself can constitute irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“‘When an alleged deprivation of a

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C. The balance of equities and the public interest favor Mr. Johnson The third and fourth factors also favor Mr. Johnson. Mr. Johnson has demonstrated he will suffer severe and irreparable harm in violation of the U.S. Constitution absent an injunction. See supra Parts I & II. In contrast, there is no burden on Defendants in transferring Mr. Johnson to general population and providing him with needed counseling. Housing prisoners in general population when there is no basis to keep them isolated is part of the DOC’s day-to-day job. The DOC is also required, as a general matter, to provide prisoners with needed health services—most especially when the ailment at issue was caused by the DOC. Mr. Johnson is asking for nothing more than for the DOC to act as the Constitution requires. With regard to public policy, the Third Circuit has determined that “if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.” AT&T v. Winback & Conserve Program, 42 F.3d 1421, 1427 n. 8 (3d Cir. 1994). Moreover, “‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’” Buck v. Stankovic, 485 F. Supp. 2d 576, 586-87 (M.D. Pa. 2007) (quoting G&V Lounge v. Michigan Liquor Control Comm’n, 23

(continued…)
constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.’” (quoting 11 C. Wright & A. Miller, Federal

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F.3d 1071, 1079 (6th Cir. 1994) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979)).
More specifically, that public policy is against long term solitary confinement without penological justification is clear. Justice Kennedy recently recognized the “human toll wrought by extended terms of solitary confinement,” and that it may be time for the courts to find “workable alternative systems” for long term solitary confinement. Davis v. Ayala, 135 S. Ct. 2187, 2208-10 (2015) (Kennedy, J. concurring). He noted, succinctly: “[y]ears on end of near-total isolation exact a terrible price.” Id. Mr. Johnson has paid that price for decades.
Statements from the correctional community itself also demonstrate public policy is strongly in favor of Mr. Johnson’s release from solitary confinement. The American State Correctional Association (“ASCA”), of which Defendant Wetzel is an officer, recently released a statement indicating the need to reduce, if not eliminate, long term solitary confinement. (Ex.G, ASCA Statement). In the summer of 2015, Defendant Wetzel himself defined long-term solitary confinement as “[a]nything longer than 14 days”, and shared an expectation that “we may see a capping of time an individual can be housed in restricted housing [i.e. solitary confinement].” (Ex. H, Correctional Newsfront: Official Newsletter

(continued…)
Practice and Procedure, § 2948, at 440 (1973)).

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of PA DOC, July to September 2015, at 21-25). He also discussed reviewing

current conditions in solitary confinement to consider more programming, out-of-

cell time, visits, telephone and technology use. (Id.).

V. CONCLUSION “The degree of civilization in a society can be judged by entering its

prisons.” Fyodor Dostoyevsky, The House of the Dead (1862). Defendants have

inflicted a fearsome toll on Mr. Johnson long after any arguably legitimate interest

in doing so has evaporated. Mr. Johnson lost contact with other humans before the

internet, cell phones, or the fall of the Soviet Union. The time to end his isolation

is now. For the foregoing reasons, Plaintiff Arthur Johnson’s motion for a

preliminary injunction to end both his continued isolation and to provide

affirmative psychological and social support to counteract the DOC has inflicted

upon him should be granted.

Date: May 12, 2016

Respectfully submitted,

/s/ Bret Grote
Bret Grote Pa. Bar No. 317273 Dustin McDaniel Pa. Bar No. 314618 Abolitionist Law Center Telephone: (412) 654-9070 bretgrote@yahoo.com dsm@abolitionistlawcenter.org

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Jules Lobel* N.Y. Bar No. 1262732 3900 Forbes Avenue Pittsburgh, PA 15260 Telephone: (412) 648-1375 jll4@pitt.edu
Thomas S. Jones* Pa. Bar No. 71636 JONES DAY 500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 tsjones@jonesday.com
Peter D. Laun* Pa. Bar No. 67325 JONES DAY 500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 pdlaun@jonesday.com
Tarah E. Ackerman* Pa. Bar No. 311411 JONES DAY 500 Grant Street, Ste. 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 tackerman@jonesday.com
*Applying for admission pro hac vice
Attorneys for Plaintiff Arthur Johnson.

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CERTIFICATE OF COMPLIANCE OF BRIEF LENGTH I hereby certify that the foregoing Brief in Support of Plaintiff Arthur Johnson’s Motion for Preliminary Injunction measures 4,883 words in length, including footnotes, and excluding the Tables of Contents and Authorities and the Certificates of Compliance and Service, and thus complies with the 5,000 word count limitation set forth in L.R. 7.8(b). This word count is based upon the word count feature in Microsoft Office Word 2007.

Dated: May 12, 2016

/s/ Bret Grote
Bret Grote Attorney for Plaintiff Arthur Johnson

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CERTIFICATE OF SERVICE
I hereby certify that, on May 12, 2016, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system, and served the following by
statutory overnight delivery and certified U.S. mail as follows:
Defendants John Wetzel, Shirley Moore-Smeal, and Michael Wenerowicz: 1930 Technology Parkway Mechanicsburg, PA 17050
Defendants Brenda Tritt, James Meintel, and Anthony Kovalchik: 1111 Altamont Blvd. Frackville, PA 17931

Dated: May 12, 2016

/s/ Bret Grote
Bret Grote Attorney for Plaintiff Arthur Johnson

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

ARTHUR JOHNSON,
Plaintiff
v.
JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections, et al.,
Defendants

: CIVIL ACTION NO. 1:16-CV-863 : : (Chief Judge Conner) : : : : : : : :

MEMORANDUM

Plaintiff Arthur Johnson (“Johnson” or “Mr. Johnson”) is a convicted

murderer. He has been in the custody of the Pennsylvania Department of

Corrections (“the Department”) since 1973, serving a life sentence without the

possibility of parole. For the past thirty-six years, the Department has held Mr.

Johnson in solitary confinement—his entire existence restricted, for at least twenty-

three hours per day, to an area smaller than the average horse stall. Astoundingly,

Mr. Johnson continues to endure this compounding punishment, despite the

complete absence of major disciplinary infractions for more than a quarter century.

Mr. Johnson initiated this cause to challenge his institutional exile as

violative of the United States Constitution. Presently, Mr. Johnson moves the court

to compel the Department to: (1) stop his interminable isolation and (2) release him

to general population.

I. Background On May 12, 2016, Johnson commenced this matter with the filing of a three-
count complaint, contemporaneous with a motion for preliminary injunction. (See Docs. 1, 3). Johnson challenges the constitutionality of his continued placement in solitary confinement pursuant to 42 U.S.C. § 1983. He asserts claims for violation of the Eighth Amendment’s proscription against cruel and unusual punishment (Count I) as well as the Fifth and Fourteenth Amendments’ respective guarantees of substantive and procedural due process (Counts II and III). Johnson names as defendants John Wetzel, Secretary of the Department; Shirley Moore-Smeal, Executive Deputy Secretary of the Department; and Michael Wenerowicz, Regional Deputy Secretary of the Department; as well as Brenda Tritt, Superintendent of the State Correctional Institution (“SCI”) in Frackville, Pennsylvania; James Meintel, Deputy Superintendent for Facilities Management at SCI Frackville; and Anthony Kovalchik, Deputy Superintendent for Centralized Services at SCI Frackville. (Doc. 1 ¶¶ 7-12). Johnson seeks a declaration that the defendants’ conduct violates the United States Constitution, and he requests compensatory and punitive damages as well as permanent injunctive relief. (Id. at 24-25).
In the instant motion, Johnson petitions the court to compel his reintegration to general prison population. (Doc. 1-1). He also seeks psychological counseling to redress the deleterious psychological effects of his long-term isolation. (Id.) The court convened a preliminary injunction hearing over the course of two separate days, taking Johnson’s evidence on July 6, 2016, and defendants’ evidence on August 11, 2016. Per the court’s directive, the parties filed proposed findings of fact
2

and conclusions of law (Docs. 65-66) on September 7, 2016. Johnson’s motion (Doc. 3) for preliminary injunction is now ripe for disposition. II. Findings of Fact1
The predicate facts undergirding the instant dispute are largely uncontested. Johnson is serving a life sentence without possibility of parole for a homicide that occurred during a street fight in October 1970. See Commonwealth v. Johnson, No. CP-51-CR-110791-1971 (Pa. Ct. Com. Pl. Phila. Cty.); (Joint Stip. ¶ 2). Johnson has been in the Department’s custody continuously since his conviction in August of 1973. (See Joint Stip. ¶ 1; Doc. 65 ¶ 1; Doc. 66 ¶ 1).
A. Johnson’s History in Department Custody According to Department records, Johnson was involved in a violent escape attempt at SCI Pittsburgh on December 22, 1979. (Joint Stip. ¶ 6). A corrections officer was bound, gagged, and locked in a prison cell during that attempt. (See id.) Records indicate that Johnson was in possession of two loaded zip guns at the time of his unsuccessful escape attempt. (Id.) Prison administrators subsequently removed Johnson from general population and placed him in a restricted housing unit (“RHU”), commonly referred to as “solitary confinement.” (Id.; see Doc. 65
1 Consistent with the directive of Federal Rule of Civil Procedure 65(d), the following factual narrative represents the court’s findings of fact as derived from the record. To the extent the parties’ proposed findings of fact (Docs. 65-66) find support in the record evidence, the court cites directly thereto. Citations to the record also include the transcript of the preliminary injunction hearing convened on July 6, 2016 (“Tr. 1”), sealed and unsealed transcripts of the hearing convened on August 11, 2016 (“Tr. 2” and “Tr. 3,” respectively), Johnson’s hearing exhibits (“Ex. P-_”), defendants’ hearing exhibits (“Ex. D-_”), and the parties’ joint stipulation of facts (“Joint Stip. ¶ _”).
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¶ 2). Department records reflect that Johnson was accused of two additional escape attempts in 1984 and 1987. (Joint Stip. ¶¶ 7, 9). Johnson accrued “at least ninety class 1 misconducts” during the early years of his incarceration for escape, attempted escape, possession of contraband, and assaultive behavior. (Doc. 66 ¶ 9). Since 1987, Johnson has not been disciplined for any serious misconduct. (Joint Stip. ¶ 8; Doc. 65 ¶ 71). With the exception of a “very minor” infraction involving a multivitamin deemed “contraband,” Johnson has been misconduct free for more than a decade. (Doc. 65 ¶ 72). Deputy Superintendent Meintel describes Johnson as “the model inmate.” (Id. ¶ 74). Notwithstanding this decade of exemplary behavior, Johnson remains in isolation. (Doc. 66 ¶¶ 99-100).
B. The Restricted Release List In approximately 2004, the Department instituted a Restricted Release List (“RRL”) program designating certain categories of inmates to solitary confinement indefinitely. (See Joint Stip. ¶ 20). An inmate placed on the RRL is “held in the RHU unless and until they are taken off RRL status.” (Id.) Only Secretary Wetzel is authorized to remove a prisoner from the RRL. (Id. ¶¶ 21, 30). The Department placed Johnson on the RRL in 2009, and he remains on the RRL to present day. (See id. ¶¶ 22, 32). The Department amended its policy in October 2012 to mandate annual review of RRL designations by the Secretary. (Id. ¶ 23). The annual review process commences with circulation of a form referred to as a “DC-46 vote sheet.” (Id. ¶ 24). Therein, select staff members and prison officials opine as to whether a particular prisoner should remain on the RRL. (Id.) The vote sheet is then forwarded to the
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Department’s Central Office, where both the Regional Deputy Secretary and Executive Deputy Secretary provide additional input concerning the prisoner’s continued RRL status. (Id. ¶ 25). As part of the review process, a Department psychological services specialist (“PSS”) conducts psychological evaluations of RRL inmates. (See Doc. 66 ¶ 85). The PSS provides input on circulated vote sheets based on their observations. (See id. ¶ 84). According to Secretary Wetzel, the term “vote sheet” is something of a misnomer, because only the Secretary is authorized to make final RRL decisions. (Id. ¶ 82).
Inmates have an “opportunity to speak about” the RRL designation before a Program Review Committee (the “Review Committee”) approximately every ninety days, (Joint Stip. ¶¶ 25-26), but the extent of that opportunity is not fully apparent from the record. The Review Committee “has no authority to release an inmate” from the RRL, but it may make a recommendation to a prison’s facility manager “if it is believed that an inmate on the RRL could be safely released to general population or to a Specialized Housing Unit.” (Id. ¶¶ 27-28).
The Department has reviewed Johnson’s RRL designation annually since 2013, but Secretary Wetzel has not authorized Johnson’s removal from the RRL. (See Joint Stip. ¶¶ 31-32). Johnson’s annual psychological reviews for 2012 and 2013 identify “attempted escapes and staff assaults” as the basis for recommending Johnson’s continued isolation. (Doc. 65 ¶ 49; see also Ex. P-11 at 3; Ex. P-12 at 3). The most recent review, which occurred in 2015, was fully explored by the parties during the preliminary injunction hearing.
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The 2015 RRL review process began with circulation of a DC-46 vote sheet in August of 2015. (Doc. 65 ¶ 51; see Doc. 66 ¶¶ 80-84). The Superintendent and both Deputy Superintendents at SCI Frackville voted to remove Johnson from the RRL. (Doc. 65 ¶ 51; Ex. P-17). On August 24, 2015, Johnson’s then-assigned PSS, Siena Smith (“PSS Smith”), voted to retain him on the RRL based on his escape history and “threats to harm others.” (Ex. P-17). PSS Smith had just begun working with Johnson in March 2015, had not developed a communicative relationship with him at the time, and now concedes that her vote was based entirely on his decades-old escape attempts. (Doc. 65 ¶ 61).
On October 2, 2015, at Secretary Wetzel’s request, PSS Smith conducted a psychological evaluation to supplement Johnson’s RRL review. (Doc. 66 ¶ 89; see also Doc. 65 ¶ 62). PSS Smith observes in an accompanying report that, during the review, Johnson stated: “I have too much respect for you to lie and give you the answers I know they want to hear. I would prefer that someone else ask me the questions.” (Ex. P-16 at 3). PSS Smith reports that Johnson made this comment while the “PSS was. . . asking [Johnson] about his escape attempts and assaults and his plans for doing them in the future.” (Id.) At the preliminary injunction hearing,
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however, PSS Smith testified that Johnson offered this remark in response to a
question about prospective escape plans only.2 (Tr. 2 at 39:17-24, 81:3-22).
Secretary Wetzel ultimately decided to retain Johnson on the RRL
following the 2015 review, based in large part on PSS Smith’s psychological
evaluation. (Doc. 65 ¶ 54; Doc. 66 ¶¶ 98-100). In response to the undersigned’s
inquiry, Secretary Wetzel conceded that “short of eliminating his history and
retracting his statements” as construed by PSS Smith, there is no hope for
Johnson’s removal from the RRL. (Doc. 65 ¶ 69).
C. Johnson’s Mental Health
During the July 6, 2016 injunction hearing, Johnson testified at length to the
effects of his prolonged isolation. He explained that he suffers from sleeplessness,
anxiety, depression, obsessive behavior, anger, loss of concentration, loss of short-
term memory, and despair. (Doc. 65 ¶¶ 33-35). He also described feeling hopeless,
stating: “I behave every way that they told me I [was] supposed to behave, and it
2 At defendants’ request, the court ordered that PSS Smith’s testimony be filed under seal. Thereafter, Johnson moved to unseal the testimony, citing the “strong presumption of openness” of judicial proceedings, Miller v. Ind. Hosp., 16 F.3d 549, 559 (3d Cir. 1994), and observing that the sensitive documents central to PSS Smith’s testimony were later unsealed by the court. (Doc. 61). Johnson’s counsel notes that the Department transferred Johnson to SCI Coal Township immediately following the August 11, 2016 hearing, eliminating any ostensible threat to PSS Smith’s personal security. (Id. at 7-8). The court deferred resolution of Johnson’s motion to unseal and directed the parties to set forth their respective positions in proposed findings of fact and conclusions of law. (Doc. 62). Defendants fail to substantively challenge Johnson’s motion to unseal in their proposed findings, (see Doc. 66 at 7-8 n.4), and the court deems any objection to Johnson’s motion to be waived. Moreover, the court finds that any institutional security concerns stemming from unsealing PSS Smith’s testimony have been abated by Johnson’s transfer. The court will therefore grant Johnson’s motion (Doc. 60) to unseal PSS Smith’s testimony.
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really doesn’t mean nothing at all,” referring to defendants’ refusal to release him from isolation. (Id.) Johnson explained that, historically, he has been hesitant to report his mental suffering to prison psychological staff because he “was brought up not to ‘complain.’” (Id. ¶ 37).
Craig Haney, Ph.D. (“Dr. Haney”), is a psychologist who studies the intersection of psychology and the law, with particular emphasis on the effects of long-term solitary confinement. (Tr. 1 at 85:7-18). Dr. Haney evaluated Johnson in a non-contact visitation room at SCI Frackville on January 26, 2016, and submitted a comprehensive expert report of his findings. (See Doc. 4-2 ¶ 14 (“Haney Report”)). Therein, Dr. Haney documents Johnson’s reports of progressive sleeplessness, frenetic ruminations, difficulty concentrating and focusing, obsessive behavior, and increasing irritability. (Id. ¶¶ 149-50). He notes that Johnson described “struggl[ing] greatly with depression.” (Id. ¶ 150). Dr. Haney opines that it is only Johnson’s “exceptional resilience” that has allowed him to endure his lengthy isolation, but that the experience “has finally worn him down psychologically.” (Id. ¶ 146). Based upon his in-person assessment of Mr. Johnson, Dr. Haney testified that “[Johnson] has struggled to maintain his sanity” in isolation, and has deteriorated to the point of experiencing “social death”—the condition of having so few meaningful social contacts, and such an acute awareness of that deficit, that an individual loses the ability “to function as a social being.” (Tr. 1 at 115:20-25; see also Haney Report ¶¶ 21, 145). Dr. Haney concludes that Johnson is “approaching losing the will to live,” and that, without a change of circumstance, he would
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“expect [Johnson] to enter that last or final stage of giving up, or basically not being able to tolerate this existence any longer.” (Doc. 65 ¶ 39).
In sharp contrast, PSS Smith flatly rejects the proposition that Johnson is experiencing any form of mental health disorder. (See Doc. 66 ¶ 42). PSS Smith began treating Johnson in March 2015 and conducted cell-side “contact visits” with Johnson two or three days per week. (Doc. 65 ¶ 56; Doc. 66 ¶ 48). During these contact visits, PSS Smith neither enters the inmate’s cell nor removes the inmate therefrom; instead, she speaks to inmates through solid steel isolation doors for brief periods, ranging between five and fifteen minutes. (Doc. 65 ¶ 29; Doc. 66 ¶¶ 41, 50). The vast majority of PSS Smith’s contact notes include only a cursory statement that “inmate reports no issues/concerns,” with no meaningful observations. (See Ex. P-15). Nonetheless, a number of contact notes reflect that Johnson reported suffering anger, frustration, depression, insomnia, and loss of focus. (Doc. 65 ¶ 30; see also Ex. P-15 at 55, 60, 64, 66, 69, 97, 101, 102, 115). On a few occasions, PSS Smith indicated that she “reviewed coping skills” with Johnson in response to his complaints. (Ex. P-15 at 69, 97, 101, 115, 116). Despite these documented issues, PSS Smith does not believe Johnson exhibits symptoms of mental illness or decompensation. (Doc. 66 ¶¶ 42-45).
Pogos Voskanian, M.D. (“Dr. Voskanian”), a board-certified forensic psychiatrist, evaluated Johnson and submitted an expert report at defendants’ request. (See Tr. 3 at 46:4-7; Ex. D-10 (“Voskanian Report”)). During their meeting on July 22, 2016, Johnson reported suffering from insomnia, anxiety, depression, loss of concentration, and hopelessness. (See Doc. 65 ¶ 34; Tr. 3 at 72:13-73:13; see
9

also Voskanian Report at 7-8). Dr. Voskanian agreed on cross-examination that Johnson’s self-reported symptoms are constituent elements of depressive disorder, but opined that his symptoms do not yet present with sufficient frequency to “add up to a diagnosable condition.” (Tr. 3 at 72:2-9, 76:14-77:17). Consequently, Dr. Voskanian testified that Johnson is not presently suffering from any cognizable form of mental illness. (See id.; see also Doc. 66 ¶ 42).
D. Conditions of Johnson’s Confinement3 Johnson’s cell in the RHU is approximately seven feet wide by ten feet long, comprising a total area of sixty-eight square feet, of which forty-seven square feet are unencumbered. (Joint Stip. ¶ 12; Doc. 65 ¶ 6; Doc. 66 ¶ 11). Johnson has a television, radio, bed, mattress, desk, and toilet, and his cell contains a small window with a view of the exercise yard. (See Doc. 65 ¶ 6; Doc. 66 ¶¶ 13-14). Two narrow windows in the cell’s solid steel door permit an obstructed view of general population. (See Doc. 65 ¶ 6; Ex. P-1 at 1). The cell is illuminated by a security light twenty-four hours per day. (Doc. 65 ¶ 6; Doc. 66 ¶ 16). Johnson eats, sleeps, washes up, and uses the toilet all within this sixty-eight square foot space. (Doc. 66 ¶¶ 17-18; Tr. 1 at 174:22-175:4). Johnson can only speak to other inmates by yelling through his cell’s solid steel door. (Doc. 65 ¶ 8; Doc. 66 ¶ 22).
3 Johnson’s counsel reports that the Department transferred Johnson from SCI Frackville to SCI Coal Township following the August 11, 2016 hearing. (Doc. 61 at 7-8). Record evidence as to the conditions of Johnson’s confinement pertains to his cell in the RHU at SCI Frackville. Although the court’s factual summary and analysis address the conditions at SCI Frackville, the court logically assumes that Johnson remains subject to nearly identical conditions at SCI Coal Township. Indeed, the Department has expressed its intent to retain Johnson on the RRL indefinitely. (Tr. 3 at 158:1-7).
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Johnson leaves his cell three times per week for a shower. (Doc. 65 ¶ 7; Doc. 66 ¶ 19). Weather permitting, Johnson is allowed one hour of outdoor “yard” time each weekday. (Doc. 65 ¶ 9; see also Doc. 66 ¶ 23). During yard, Johnson is placed by himself in a nine-foot by twenty-foot recreation cage. (Doc. 65 ¶ 9; Doc. 66 ¶ 24). On weekends and days when inclement weather disrupts yard privileges, Johnson spends twenty-four hours in his cell. (Doc. 65 ¶ 10). All of his immediate family members are deceased. (Id. ¶ 13). Johnson has not had any physical contact with family or friends in more than thirty-six years. (Id. ¶ 12). III. Legal Standard
Preliminary injunctive relief is an extraordinary remedy and should issue in only limited circumstances. See AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994); see also FED. R. CIV. P. 65. Four factors inform a district court’s decision to issue a preliminary injunction: (1) whether the movant has shown “a reasonable probability” of success on the merits; (2) whether the movant will suffer “irreparable” harm if denied relief; (3) whether the requested relief will cause greater harm to the nonmovant; and (4) whether an injunction is in the public’s interest. Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012) (quoting Crissman v. Dover Downs Entm’t Inc., 239 F.3d 357, 364 (3d Cir. 2001)). The moving party bears the burden of establishing that the balance of these factors weighs in its favor. Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014). A movant’s failure to demonstrate a likelihood of success on the merits or irreparable harm in the absence of injunctive
11

relief renders a preliminary injunction inappropriate. See Grill v. Aversa, 908 F. Supp. 2d 573, 591 (M.D. Pa. 2012). IV. Discussion
Johnson grounds his request for preliminary injunctive relief in his cruel and unusual punishment claim. (See Doc. 4 at 2 n.1). He contends that his indefinite and unjustified placement in solitary confinement violates the most basic constitutional guarantees of humane treatment. (Id. at 5-18). A district court need only determine that the moving party would likely succeed on one claim to issue injunctive relief. See Trefelner ex rel. Trefelner v. Burrell Sch. Dist., 655 F. Supp. 2d 581, 590 (W.D. Pa. 2009); First Health Grp. Corp. v. Nat’l Prescription Adm’rs, Inc., 155 F. Supp. 2d 194, 234 (M.D. Pa. 2001). Consequently, the court restricts its analysis to Johnson’s Eighth Amendment cause of action.
A. Reasonable Probability of Success on the Merits To establish a reasonable probability of success on the merits, a movant must produce sufficient evidence to satisfy the essential elements of the underlying cause of action. Punnett v. Carter, 621 F.2d 578, 582-83 (3d Cir. 1980). The district court must examine the legal principles controlling the claim and the potential defenses available to the opposing party. See BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 264 (3d Cir. 2000). A mere possibility that the claim might be defeated does not preclude a finding of probable success if the evidence clearly satisfies the essential prerequisites of the cause of action. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001).
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The fundamental principles of Johnson’s constitutional claim are firmly established. The Eighth Amendment to the United States Constitution proscribes the government from inflicting upon its citizens “cruel and unusual punishment” of any form. U.S. CONST. amend VIII. More than two decades ago, in Farmer v. Brennan, 511 U.S. 825 (1994), the United States Supreme Court observed that this constitutional proscription requires prison officials to provide “humane conditions of confinement” to their charges. Id. at 832. Prison officials violate this guarantee when they “deprive inmates of the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Atkinson v. Taylor, 316 F.3d 257, 272 (3d Cir. 2003).
An Eighth Amendment conditions of confinement claim requires both objective and subjective proof. A prisoner must demonstrate: first, that he or she has been subjected to an objectively “serious” deprivation of life’s basic needs or a “substantial risk of serious harm” to his or her health; and, second, that defendants knew of and were deliberately indifferent to that deprivation or risk. Farmer, 511 U.S. at 834; Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 227-28 (3d Cir. 2015). The court will address the requisite elements of Johnson’s claim seriatim.
1. “Serious” Conditions of Confinement Defendants argue that “courts have consistently upheld the [Department’s] RHU regime against Eighth Amendment challenges.” (Doc. 33 at 9-10). But Johnson’s claim is not a generic challenge to the institutional use of solitary confinement. (Doc. 34 at 2-3). Instead, he maintains that the extraordinary duration of his confinement combines with the harsh consequences of involuntary
13

isolation to impel its effects across constitutional boundaries. (See id. at 3-6; Doc. 4 at 8-13). He contends that his prolonged confinement in the RHU denies him social interaction, environmental stimuli, sleep, and exercise, culminating in a collective deprivation of constitutional proportion. (See Doc. 4 at 7-13; Doc. 65 ¶ 93). The court agrees.
The objective component of a conditions of confinement claim tasks a plaintiff to demonstrate that the conditions of confinement are so “objectively, sufficiently serious” as to constitute a “denial of the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834. Plaintiffs may satisfy this requirement by showing either that prison officials have deprived them of “a single, identifiable human need,” such as food, water, shelter, clothing, or exercise, Wilson v. Seiter, 501 U.S. 294, 304 (1991), or that prison conditions “pose an unreasonable risk of serious damage” to the prisoner’s current or future health, Helling v. McKinney, 509 U.S. 25, 35 (1993). Moreover, the fact that one or more conditions would not independently constitute an Eighth Amendment violation is not dispositive when the conditions, in combination, have a “mutually enforcing effect” of producing an unconstitutional deprivation. Wilson, 501 U.S. at 304.
The Supreme Court has declined to draw a bright line between those conditions which transgress accepted bounds of decency and those that pass constitutional muster. Rhodes, 452 U.S. at 346. Rather, courts must measure alleged deprivations against an evolving metric, determining on a case by case basis whether challenged conditions offend “contemporary standards of decency.” Helling, 509 U.S. at 32, 36; Rhodes, 452 U.S. at 346.
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It is undisputed that a prisoner’s placement in solitary confinement does not, in itself, violate the Constitution. See Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992), superseded on other grounds by statute, Prison Litigation Reform Act, 42 U.S.C. § 1997 et seq., as recognized in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000). However, the Supreme Court of the United States has admonished that duration of confinement “cannot be ignored” in determining whether challenged conditions withstand constitutional scrutiny. Hutto v. Finney, 437 U.S. 678, 686 (1978); Young, 960 F.2d at 364. Courts must be cognizant of the “fundamental difference” between deprivation of discretionary privileges that a prisoner in general population may enjoy and deprivation “of the basic necessities of human existence.” Young, 960 F.2d at 364. A number of courts have resolved that the denials of basic human needs such as social interaction, environmental stimuli, exercise, and sleep which attend long-term isolation run afoul of the Eighth Amendment. See Shoatz v. Wetzel, No. 2:13-CV-657, 2016 WL 595337 (W.D. Pa. Feb. 12, 2016) (twenty-two years); Ashker v. Brown, No. 09-5796, 2013 WL 1435148 (N.D. Cal. Apr. 9, 2013) (more than twenty years); Wilkerson v. Stalder, 639 F. Supp. 2d 654 (M.D. La. 2007) (twenty-eight and thirty-five years).
Mr. Johnson’s entire adult existence has been relegated to a sixty-eight square foot area. (See Joint Stip. ¶ 12). Johnson “eats, sleeps, and defecates” in this exiguous space. (Tr. 1 at 174:22-175:4). Light illuminates the cell twenty-four hours per day, inexorably leading to bouts of sleep deprivation. (Doc. 65 ¶ 6; see Doc. 66 ¶ 16). Johnson exits his cell for three showers per week, and he is allowed only one hour of “yard” time on weekdays, during which time he is confined to a nine-foot by
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twenty-foot exercise cage—without exercise equipment. (Doc. 65 ¶¶ 7, 10; Doc. 66 ¶¶ 19, 23-24). On weekends and on days of inclement weather, Johnson is confined to his cell for twenty-four continuous hours. (Doc. 65 ¶ 10).
Johnson’s primary view of the world is through three small windows: one in the back of the cell offering a view of the yard, and two narrow, vertical windows in the cell’s solid steel door providing a limited view of general population. (Joint Stip. ¶ 19; Doc. 66 ¶¶ 13, 21). Johnson can see other inmates but can speak to them only by yelling through the cell door, potentially exposing himself to a misconduct. (Doc. 65 ¶ 8; see Doc. 66 ¶ 22). He has no physical contact with visitors. (Joint Stip. ¶ 18). Except for incidental contact with corrections officers, Johnson had no physical contact with another person from 1979 until he shook the hands of his counsel on the morning of the initial hearing. (Doc. 65 ¶ 12). Replicated daily for thirty-six years, individual conditions set forth in the instant Rule 65 record coalesce to comprise an unconstitutional deprivation. See Wilson, 501 U.S. at 304; see also Shoatz, 2016 WL 595337, at *7-8; Ashker, 2013 WL 1435148, at *4-6; Wilkerson, 639 F. Supp. 2d at 677-78.
In addition, Johnson produces credible evidence that he has suffered—and continues to suffer—psychological deterioration as a direct result of his continued isolation. The Eighth Amendment protects an inmate’s physical and mental health. See Farmer, 511 U.S. at 852 (citing Gregg v. Georgia, 428 U.S. 153, 183 (1976)); see also Young, 960 F.2d at 364. Hence, conditions of confinement which unreasonably jeopardize an inmate’s mental health are the proper subject of constitutional scrutiny. See Farmer, 511 U.S. at 852; Young, 960 F.2d at 364.
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Johnson alleges severe psychological deterioration in his complaint. (See Doc. 1 ¶¶ 42-54). For purposes of his instant motion, Johnson presents sufficient probata to meet his allegata. Johnson testified at length to the palpable, deleterious effects of his prolonged isolation. He described feeling depressed and anxious, deteriorating short-term memory, and decreasing focus. (See Doc. 65 ¶ 35). He also described profound hopelessness, observing that no matter how well he behaves, defendants refuse to release him from isolation. (Id.)
Dr. Haney’s expert report and testimony corroborate Johnson’s lay description of his mental degradation. Dr. Haney opines with certitude that Johnson “has struggled to maintain his sanity” in isolation. (Tr. 1 at 115:20-25). He notes that Johnson reported “a variety of different psychological problems” during their interview, including sleeplessness, stress, anxiety, ruminations, obsessive behavior, loss of focus, irritability, anger, and a level of hopelessness that Dr. Haney believes is “deeper than depression,” a “kind of despair” that resembles “a sense of grief or a sense of melancholy.” (Id. at 116:12-117:24). Dr. Haney concludes that Johnson has deteriorated to the point of social death as a direct result of his continued isolation. (Haney Report ¶¶ 21, 145). He cautions that, without injunctive relief, Johnson will likely “enter that last or final stage of giving up, or basically not being able to tolerate this existence any longer.” (Doc. 65 ¶ 39).
Defendants make much of the fact that neither PSS Smith nor Dr. Voskanian have diagnosed Johnson with a mental health disorder. (Doc. 66 ¶ 42). PSS Smith testified that Johnson has “some bad days . . . [j]ust like anybody else,” but she does not believe that he is depressed. (Tr. 2 at 28:13-14, 54:2-15). Similarly, Dr.
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Voskanian agrees that Johnson reports many symptoms constituent of depressive disorder, but opines that Johnson’s symptoms do not arise with sufficient frequency to “elevate to the severity required for the diagnosis.” (Tr. 3 at 76:14-77:17).
Johnson’s claim has merit notwithstanding this disagreement as to the clinical extent of his mental deterioration. The Supreme Court has long held that “the Eighth Amendment protects against future harm to inmates” as well as extant and manifest harm. Helling, 509 U.S. at 33 (emphasis added). As the Helling Court observed, it would defy the Amendment’s spirit to deny injunctive relief “to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Id. Defendants do not, and cannot, dispute this settled proposition. Even Dr. Voskanian concedes that the “exceptional resilience” thus far demonstrated by Mr. Johnson is not “guaranteed to last forever.” (Doc. 65 ¶ 41). The court rejects defendants’ contention that Mr. Johnson cannot attain relief until his condition devolves below some arbitrary threshold of mental illness.
2. Deliberate Indifference Johnson must also demonstrate that defendants acted with deliberate indifference to his mental health in retaining him on the RRL for more than thirtysix years. See Farmer, 511 U.S. at 834. This standard is a subjective one, tasking courts to examine whether defendants knew of and disregarded “an excessive risk to inmate health and safety.” Id. at 837. An inmate in pursuit of constitutional relief need not establish that a “defendant intentionally sought to cause the inmate harm.” Chavarriaga, 806 F.3d at 227 (emphasis added). Rather, an inmate carries
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his or her burden by showing that a defendant failed to act despite possessing knowledge that failure to do so “would subject the inmate to a substantial risk of serious harm.” Id. When the risk of constitutional harm is “obvious,” courts may infer deliberate indifference. Hope v. Pelzer, 536 U.S. 730, 738 (2002).
The record reflects that Secretary Wetzel knows well the risks inherent in prolonged isolation. Secretary Wetzel agreed that “long term” solitary confinement “certainly could” have negative effects on mental health and that Johnson’s thirtysix year confinement is “certainly” considered long term. (Tr. 3 at 156:1-7). He also acknowledged that isolation should be used “only . . . in very narrow circumstances when it’s absolutely necessary.” (Id. at 145:10-13). Moreover, Secretary Wetzel stated that he is familiar with the work of Dr. Haney, which sets forth at length the harmful effects of solitary confinement. (Id. at 156:8-10). The court finds that Secretary Wetzel—the only defendant with authority to remove Johnson from the RRL—knew of the significant mental health risks attending extended isolation.
Both decisional law and academic literature accord with this predicate finding. In a concurring opinion in Davis v. Ayala, 135 S. Ct. 2187 (2015), Justice Kennedy urged courts and prison administrators alike to contemplate critically the “human toll wrought by extended terms of isolation.” Id. at 2209. He emphasized the Supreme Court’s century-old recognition that “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and peculiar mark of infamy.’” Id. (quoting In re Medley, 134 U.S. 160, 170 (1890)). District courts have reached a similar consensus throughout the country. See, e.g., Shoatz, 2016 WL 595337, at *7-8; Ashker, 2013 WL 1435148, at *4-6; Wilkerson, 639 F. Supp. 2d at 677-78. As
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one district court has aptly observed: “[T]hat prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science.” McClary v. Kelly, 4 F. Supp. 2d 195, 208 (W.D.N.Y. Apr. 30, 1986).
Academic literature of both the psychological and penological genre reflect similar findings. Researchers have observed that “psychological stressors such as isolation can be as clinically distressing as physical torture.” Jeffrey L. Metzner, M.D., et al., Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM. ACAD. PSYCHIATRY & LAW 104, 104 (2010). In calling for an outright ban on solitary confinement beyond fifteen days, a United Nations’ Special Rapporteur of the Human Rights Council determined that such confinement may cause “severe mental pain or suffering” and “amount to torture or cruel, inhuman or degrading treatment.” Juan Mendez (Special Rapporteur), Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/66/268 Summary & ¶¶ 76-78 (Aug. 5, 2011). Dr. Haney’s expert report identifies copious authorities exploring and validating these concerns. (See Haney Report ¶¶ 30-80). Defendants concede “there is a strong desire to move away from the long-term segregation and isolation of inmates generally.” (Doc. 33 at 19).
Defendants contend, however, that they possess a legitimate penological rationale for maintaining Johnson in solitary confinement notwithstanding the known risks of extended isolation. (See id.; Doc. 66 ¶ 106). The Third Circuit Court of Appeals has recognized that isolation “may be a necessary tool of prison
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discipline . . . to control and perhaps protect inmates whose presence within the general population would create unmanageable risks.” Young, 960 F.2d at 364 (citing Hutto, 437 U.S. at 685-86). However, harsh conditions of confinement which lack legitimate penological justification violate the Constitution. See Hope, 536 U.S. at 737-38; see also Wilkerson, 639 F. Supp. 2d at 680-81.
Defendants classify Johnson as a threat to institutional safety, asserting that “[h]e has not exhibited behavior to demonstrate that he does not intend to escape from the general population.” (Doc. 66 ¶ 106). Defendants base this concern on: (1) Johnson’s involvement in the 1979 escape attempt; (2) his alleged involvement in escape attempts in 1984 and 1987; and (3) his accumulation of “at least ninety class 1 misconducts” during the early years of his incarceration. (Id. ¶¶ 3-10).
The concerns cited in defendants’ briefing are substantially undermined by their own record evidence. The court does not discount the severity of Johnson’s past misconduct. It is undisputed that Johnson’s institutional misconduct record reflects his involvement in three separate escape attempts in an eight-year span. (See Doc. 65 ¶ 70; Doc. 66 ¶¶ 3-10). However, defendants’ argument ignores that Johnson has—in Secretary Wetzel’s own words—“stayed out of trouble in prison . . . [for] the last twenty-five years.” (Doc. 65 ¶ 71 (emphasis added)). In the past decade, Johnson received only one minor misconduct, for possessing a multivitamin in his cell. (Id. ¶ 72). Secretary Wetzel described this misconduct as “very minor” and observed that he “didn’t even consider” it when determining whether to retain Johnson on restricted release status. (Id.) Indeed, Deputy Superintendent Meintel,
21

who interacts regularly with Johnson, described him as “the model inmate.” (Id. ¶ 74).
The only cited safety concern with facial plausibility is Johnson’s purported “inability to give the PSS a ‘straight answer’ concerning his intentions to escape” during a 2015 psychological review. (Doc. 66 ¶ 92). PSS Smith observed in her 2015 annual evaluation report that Johnson told her he has “too much respect for” her to “lie and give [her] the answers . . . they want to hear.” (Ex. P-16 at 3). PSS Smith noted in the report that Johnson offered this comment while she was asking him “about his escape attempts and assaults and his plans for doing them in the future.” (Id.) However, PSS Smith now maintains that she was asking Johnson only about his prospective escape plans, and that she construed his comment as a threat to escape in the future. (See Doc. 66 ¶ 91; see also Tr. 2 at 39:17-24, 81:3-22). When asked why she did not report this perceived threat to security, PSS Smith testified that she did not consider Johnson to be “an immediate risk,” but nonetheless believed that “he was not ready to be released to general population.” (Tr. 2 at 82:19-83:4). Johnson testified that, per contra, his comment was made in the context of discussing mental health, not his escape record. (See Doc. 65 ¶ 64). He averred that, except for his assurances that he “won’t try to escape . . . and won’t try to hurt nobody,” he never discussed past or prospective escape attempts with his PSS. (Tr. 3 at 191:6-12).
The court reiterates its prior observation that PSS Smith’s report is far from a model of clarity. (See id. at 159:6-8). Notably, the review was conducted after PSS Smith had already voted in support of Johnson’s retention on the RRL, and her
22

report was drafted for the sole purpose of supporting her prior vote. (Tr. 2 at 80:210). Further, it is unclear from PSS Smith’s cursory notations whether Johnson’s comment refers to escape propensities at all—and much less to prospective ones. (See Ex. P-16 at 3). Inconsistencies between the report and PSS Smith’s testimony, together with the patent ambiguities in the report itself, call Secretary Wetzel’s exclusive reliance thereon into serious question. This incertitude is compounded by the Secretary’s failure to seek clarification from PSS Smith concerning her vague and incomplete observations. (See Doc. 65 ¶ 68; Tr. 3 at 159:2-24).
It is hardly a revelation that prisoners sentenced to life in prison without the possibility of parole contemplate, at least momentarily, opportunities to escape. There is no penal institution in this country where whimsical or even serious thoughts of escape do not cross the minds of inmates…daily. But to confine an inmate to isolation indefinitely, absent a tenable threat, cannot be justified under the guise of institutional security. The court preliminarily finds that defendants acted with deliberate indifference in maintaining Johnson on restricted release status ad infinitum.
B. Irreparable Harm Irreparable injury is harm of such an irreversible character that prospective judgment would be inadequate to make the moving party whole. See Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The mere risk of injury is not sufficient to meet this standard. Rather, the moving party must establish that the harm is imminent and probable. Anderson, 125 F.3d at 164. Harm that may be contained effectively
23

only through immediate injunctive relief is properly deemed “irreparable.” Instant Air Freight, 882 F.2d at 801.
The record establishes that Johnson will continue to suffer irreparable injury in the absence of immediate injunctive relief. As noted at length supra, Johnson demonstrates escalating symptoms of mental degradation. This account is wellsupported by the report and testimony of Dr. Haney, an expert renowned in the areas of psychology and law. Although defendants’ expert ultimately disagreed with Dr. Haney’s conclusions, he acknowledged that Johnson reports “problems with concentration, problems with sleep, anxiety, anger, hopelessness, depression, inability to finish tasks, sadness, and stress,” and “could also have told me that he hears voices.” (Tr. 3 at 74:23-75:3). The court harbors no doubt that Johnson’s retention in the RHU will protract his extant injuries and expose him to an imminent and probable risk of even greater psychological damage. Johnson has amply demonstrated a likelihood of irreparable harm.
C. Public Interest The public interest generally supports an award of preliminary injunctive relief when a plaintiff has demonstrated both a reasonable likelihood of success on the merits and irreparable harm. AT&T, 42 F.3d at 1427 n.8. This interest is particularly strong where the right to be vindicated derives from the United States Constitution. See Buck v. Stankovic, 485 F. Supp. 2d 576, 586-87 (M.D. Pa. 2007) (quoting G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). Issuance of a preliminary injunction will serve the public’s interest in defending the integrity of a constitutional right.
24

D. Balancing of Hardships To determine whether granting preliminary injunctive relief would result in greater harm to the nonmovant, the court must examine the terms of the proposed injunction, consider the parties’ respective positions, and assess the ramifications of the requested relief. See Novartis Consumer Health, Inc. v. Johnson & Johnson– Merck Consumer Pharms. Co., 290 F.3d 578, 596-97 (3d Cir. 2002). Injunctive relief should generally be denied if the potential harm to the nonmovant outweighs the potential benefits to be bestowed upon the movant. See id. at 596-97. Defendants rely exclusively on asserted institutional security concerns, arguing that injunctive relief would work greater detriment to the Department than any ostensible benefit to Johnson. (Doc. 66 ¶ 108). The court has already concluded that the Department’s characterization of Johnson as a threat to institutional security is flawed, as that assessment is based solely on decades-old misconducts and an opaque mental health report. See supra at 20-23. The court has no crystal ball. It may well be that Johnson will endeavor to escape again. But Mr. Johnson is sixty-four years old. And he will be subject to three decades of improvements in institutional security over the general population. The Department has at its disposal a broad array of investigative and penological techniques to dissuade even the most entrenched escape artist. Surely, there are less restrictive means to monitor Mr. Johnson than solitary confinement. For all of these reasons, the court finds that defendants fail to demonstrate a prospective harm to the Department outweighing Johnson’s interest in vindicating his constitutional rights.
25

V. Conclusion When he entered Department custody in August 1973, Mr. Johnson was
eighteen years old, and his life expectancy was forty-four more years. See U.S. DEP’T OF HEALTH, EDUCATION, AND WELFARE, LIFE TABLES (1973). He has now served over eighty percent of that life expectancy in solitary confinement. The government’s proffered reason for Mr. Johnson’s continued exile—that he is an “escape risk”—is unpersuasive and substantially outweighed by the compelling facts presented in support of preliminary injunctive relief. Indeed, it is difficult to conjure up a more compelling case for reintegration to the general prison population. After thirty-six years of isolation, Mr. Johnson deserves the opportunity to shake hands with someone other than his attorneys.
The court will grant Johnson’s motion (Doc. 3) for preliminary injunction and direct his release from the RHU forthwith, in accordance with the accompanying order.

Dated:

September 20, 2016

/S/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania

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

ARTHUR JOHNSON,
Plaintiff
v.
JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections, et al.,
Defendants

: CIVIL ACTION NO. 1:16-CV-863 : : (Chief Judge Conner) : : : : : : : :

MEMORANDUM

Plaintiff Arthur Johnson (―Johnson‖) brings the above-captioned civil

rights action pursuant to 42 U.S.C. § 1983, asserting claims for violation of the Fifth,

Eighth, and Fourteenth Amendments to the United States Constitution. Johnson‘s

claims arise from his continued placement in solitary confinement. Johnson filed

the instant motion (Doc. 39) to compel discovery and to overrule certain evidentiary

privileges asserted by defendants. The court will grant in part and defer in part

Johnson‘s discovery motion.

I. Factual Background & Procedural History1

Johnson has been a prisoner in the custody of the Pennsylvania Department

of Corrections (―Department‖) since 1973. (Doc. 35 ¶ 1). According to Department

records, Johnson was involved in a violent escape attempt at the State Correctional

Institution (―SCI‖) at Pittsburgh, Pennsylvania, on December 22, 1979. (See id. ¶ 6).

Department records also reflect that Johnson was accused of a second escape

1 The limited factual background set forth herein derives from the parties‘ joint factual stipulation (Doc. 35), submitted in advance of an evidentiary hearing convened on July 6, 2016.

attempt in 1984. (Id. ¶ 7). Both attempts were unsuccessful. (Id. ¶¶ 6-7). With the exception of a fourteen month temporary transfer to federal custody from late 1989 to early 1991 and ―very brief periods‖ attending transports between institutions, Johnson has been continuously held in administrative custody in the Department‘s Restricted Housing Units (―RHUs‖) since the 1979 escape attempt. (See id. ¶ 10). Johnson has not been issued a misconduct for a major disciplinary infraction in more than two decades. (Id. ¶ 8).
In approximately 2004, the Department instituted a Restricted Release List (―RRL‖). (See id. ¶ 20). A prisoner placed on the RRL will be ―held in the RHU unless and until they are taken off RRL status.‖ (Id.) Only defendant John Wetzel (―Secretary Wetzel‖), Secretary of the Department (―Secretary‖), is authorized to remove a prisoner from the RRL. (Id. ¶¶ 21, 30). Johnson was placed on the RRL in 2009 and has remained on the RRL since that time. (See id. ¶¶ 22, 32).
The Department amended its policy in October 2012 to mandate annual review of RRL designations by the Secretary. (Id. ¶ 23). The annual review entails circulation of a form referred to as a ―DC-46 vote sheet.‖ (Id. ¶ 24). Therein, select staff members and prison officials opine as to whether a particular prisoner should remain on the RRL. (Id.) The vote sheet is then forwarded to the Department‘s Central Office, where both the Regional Deputy Secretary and Executive Deputy Secretary provide additional input concerning the prisoner‘s continued RRL status. (Id. ¶ 25). Johnson has an ―opportunity to speak about‖ the RRL designation before the prison‘s Program Review Committee (the ―Review Committee‖) approximately
2

every ninety days, (id. ¶¶ 25-26), but the full extent of that opportunity is not yet apparent from the record. The Review Committee ―has no authority to release an inmate‖ from the RRL, but it may make a recommendation to a prison‘s facility manager ―if it is believed that an inmate on the RRL could be safely released to general population or to a Specialized Housing Unit.‖ (Id. ¶¶ 27-28).
Commencing in 2013, Johnson‘s RRL status has been reviewed annually in accordance with Department policy, but Secretary Wetzel has not authorized Johnson‘s release from the RRL. (See id. ¶¶ 31-32). Currently, Johnson is in administrative custody in the RHU at SCI Frackville, Pennsylvania. (Id. ¶ 1).
Johnson commenced this action with the filing of a three-count complaint (Doc. 1) on May 12, 2016. Johnson asserts an Eighth Amendment claim for cruel and unusual punishment in Count I, and claims for procedural and substantive due process violations of the Fifth and Fourteenth Amendments in Counts II and III. Contemporaneous with the filing of his complaint, Johnson moved for preliminary injunctive relief pursuant to Federal Rule of Civil Procedure 65. (Doc. 2). Only the Eighth Amendment claim is subject to Johnson‘s Rule 65 motion. (Doc. 4 at 2 n.1). The court scheduled a multi-day preliminary injunction hearing to commence on July 6, 2016. (Docs. 23, 29).
In advance of the preliminary injunction hearing, Johnson‘s counsel requested that the Department produce any documents defendants intended to use in support of their defense, in addition to:
Any and all documents that are part of the Restricted Release List annual review process described in DC-ADM 802 § 2.8 pertaining to Arthur Johnson, including each DC-46 Vote Sheet, Annual RRL Review, Removal Request
3

forms, any security or psychological reports that were part of the review, and any other documents used in making recommendations, decisions, or assessments about Mr. Johnson‘s RRL status. These reviews were begun in 2012.
(Doc. 40 at 3). Defendants agreed to comply with the request, subject to any
applicable privileges. (Id.; Doc. 43 at 2). On July 1, 2016, defendants provided
Johnson with numerous documents responsive to his request. (See Doc. 43 at 2).
Contemporaneous with their response, defendants determined that a number of
documents were subject to certain evidentiary privileges or other protections and
accordingly withheld or redacted those documents. (Id.) Defendants provided a
privilege log to Johnson‘s counsel, identifying documents withheld from production
as follows:
 Four (4) DC-46 vote sheets, dated September 21, 2012, October 16, 2013, August 28, 2014, and August 20, 2015, on deliberative process privilege and security risk grounds;
 Three (3) RRL annual review sheets, on deliberative process privilege and security risk grounds;
 A memorandum from Senior Policy Analyst Madeline McPherson to Secretary Wetzel (―the McPherson memo‖), on deliberative process privilege grounds and security risk grounds;
 An email between the Department‘s assistant counsel, Jaime Boyd (―Boyd‖), and chief counsel, Theron Perez (―Perez‖), on deliberative process privilege and attorney work product privilege grounds;
 An ―Integrated Case Summary – Classification,‖ on security risk grounds; and
 An ―Inmate Query – Separations,‖ on security risk grounds.
(Doc. 43-1). Defendants also produced redacted versions of four annual RRL
psychological evaluations, as well as an ―RRL Checklist‖ and a memorandum from
4

Superintendent Michael Barone (―the Barone memo‖) to the Department‘s Deputy
Secretary, citing both deliberative process privilege and security risks. (See id.; see also Doc. 43 at 3).2
The parties brought their dispute to the court‘s attention during the first day
of a two-part preliminary injunction hearing on July 6, 2016. The court instructed
Johnson‘s counsel to file an appropriate motion in advance of the second hearing,
scheduled for August 11, 2016. Johnson timely filed the instant motion (Doc. 39)
to compel discovery and brief (Doc. 40) in support, and defendants responded with
an opposition brief. (Doc. 43). On August 1, 2016, Johnson‘s counsel advised the
court by telephone that no reply brief will be forthcoming. Hence, the motion is
ripe for disposition.
II. Discussion
The parties‘ discovery dispute is manifold, consisting of privilege invocations
and relevance objections, as well as an overarching assertion that the evidence
sought by Johnson implicates institutional security concerns. The court will
consider these issues seriatim.
A. Deliberative Process Privilege
Federal Rule of Civil Procedure 26(b)(1) provides that a party may obtain
discovery, subject to applicable evidentiary privileges, ―that is relevant to any
2 Johnson additionally requested that the Department provide information concerning housing assignments of ten other inmates with escape histories. (See Doc. 40 at 5-6; Doc. 43 at 3-4). The other inmates are: (1) Leslie Kevin Billingsley, CL0124; (2) George Conard, AK6890; (3) Hector Huertas, DZ5597; (4) Norman Johnston, AY8624; (5) Carmen Keller, AJ1890; (6) Malcolm Kysor, AJ1746; (7) Eric Lyons, EX1127; (8) Michael McCloskey, AY9776; (9) Russell Shoats, AF3855; and, (10) Anthony Yang, AS3190. (Doc. 40 at 23 n.1; Doc. 43 at 16 n.1). Defendants object to this request as irrelevant. (See Doc. 40 at 5-6; Doc. 43 at 3-4).
5

party‘s claim or defense and proportional to the needs of the case.‖ FED. R. CIV. P. 26(b)(1). One such privilege is that of deliberative process, which authorizes the government to withhold from production documents which contain ―confidential deliberations of law or policymaking, reflecting opinions, recommendations, or advice.‖ Redland Soccer Club, Inc. v. Dep‘t of the Army of the United States, 55 F.3d 827, 853 (3d Cir. 1995) (quoting In re Grand Jury, 821 F.2d 946, 959 (3d Cir. 1987)). The purpose of this established privilege is ―to prevent injury to the quality of agency decisions.‖ Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)). The privilege acknowledges that ―the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer . . . [if agencies were] forced to operate in a fishbowl.‖ Id. (quoting First E. Corp. v. Mainwaring, 21 F.3d 465, 468 (D.C. Cir. 1994)).
A government agency invoking an executive privilege, including the deliberative process privilege, must follow certain judicial guidelines concerning manner of assertion. See United States v. O‘Neill, 619 F.2d 222, 226 (3d Cir. 1980) (citing United States v. Reynolds, 345 U.S. 1, 7-8 (1953)). The Third Circuit Court of Appeals has held that the head of the agency asserting the privilege ―must personally review the material‖ and provide both ― ‗a specific designation and description of the documents‘ claimed to be privileged‖ as well as ― ‗precise and certain reasons for preserving‘ the confidentiality of the communications.‖ Id. (quoting Smith v. Fed. Trade Comm‘n, 403 F. Supp. 1000, 1016 (D. Del. 1975)). Courts within the Third Circuit routinely hold that claims of deliberative process privilege must be presented by the agency head, typically by way of affidavit, rather
6

than by counsel. See, e.g., Griffin-El v. Beard, No. 06-2719, 2009 WL 1606891, at *4 (E.D. Pa. June 8, 2009); Startzell v. City of Phila., 05-5287, 2006 WL 2945226, at *2 n.5 (E.D. Pa. Oct. 13, 2006); Scott Paper Co. v. United States, 943 F. Supp. 501, 502 (E.D. Pa. 1996); Smith, 403 F. Supp. at 1016.
Defendants have not submitted an affidavit or other evidence establishing that Secretary Wetzel personally reviewed the allegedly privileged material or the privilege log, nor have they averred that Secretary Wetzel asserts the privilege on behalf of the Department. (See generally Doc. 43). At least one district court within the Third Circuit rejected a deliberative process privilege assertion when there was ―no indication. . . that the department heads made the type of personal careful examination which must precede invocation of the privilege.‖ Griffin-El v. Beard, No. 06-2719, 2009 WL 678700, at *5 (E.D. Pa. Mar. 16, 2009) (quoting O‘Neill, 619 F.2d at 226). Similar deficiencies in the case at bar, ceteris paribus, might counsel a similar fate. See O‘Neill, 619 F.2d at 226. Nonetheless, the court is mindful of the emergent status of this litigation, and counsel for Johnson has not objected to the manner of privilege assertion. (See generally Doc. 40). The court will thus proceed to review the merits of defendants‘ privilege claim.
When the deliberative process privilege is properly asserted, the government bears the initial burden of establishing its applicability. See Redland Soccer Club, 55 F.3d at 853 (citing Schreiber v. Soc‘y for Sav. Bancorp, 11 F.3d 217, 221 (D.C. Cir. 1993)); see also Scott v. Bd. of Educ. of City of E. Orange, 219 F.R.D. 333, 336 (D.N.J. 2004). The government must present ―more than a bare conclusion or statement that the documents sought are privileged.‖ Redland Soccer Club, 55 F.3d at 854
7

(citing Schreiber, 11 F.3d at 221). Rather, to sustain its burden, the government must establish that the information contained in the subject documents is both ―predecisional‖ and ―deliberative.‖ Reid v. Cumberland Cnty., 34 F. Supp. 3d 396, 406 (D.N.J. 2013) (citing EEOC v. FAPS, Inc., No. 10-3095, 2012 WL 1656738, at *9 (D.N.J. May 10, 2012)); Griffin-El, 2009 WL 1606891, at *4 (citing Startzell, 2006 WL 2945226, at *2). Information is ―predecisional‖ when it reflects particular steps taken by the agency in reaching a final decision and ―deliberative‖ when it reveals processes used by the agency in reaching the decision. Griffin-El, 2009 WL 1606891, at *4 (citing Startzell, 2006 WL 2945226, at *2). The privilege protects the process of ―conceptualizing‖ but not ―the gathering of facts.‖ Cozen O‘Connor v. U.S. Dep‘t of Treasury, 570 F. Supp. 2d 749, 780 (E.D. Pa. 2008). Hence, material which is factual only is not protected unless its exposure would compromise the deliberative process itself. Id.
The deliberative process privilege is not absolute. Redland Soccer Club, 55 F.3d at 854 (citing Mainwaring, 21 F.3d at 468 n.5; United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993)). Once the government establishes that the information sought is both predecisional and deliberative, the court must determine whether the interests of the party seeking discovery ―outweigh[] the government‘s interest.‖ Id. The Third Circuit requires the party moving to compel production to show ―a sufficient need for the material in the context of the facts or the nature of the case.‖ Id. (quoting In re Grand Jury, 821 F.2d at 959). Courts consider the following nonexhaustive list of factors in balancing the parties‘ competing interests: (1) the relevance of the information subject to the privilege; (2) the ―availability of other
8

evidence‖; (3) the ―seriousness‖ of the claims asserted in the litigation; (4) the government‘s role in the litigation; and (5) whether overruling the privilege would result in ―the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.‖ Id. (quoting Mainwaring, 21 F.3d at 468 n.5).
When the propriety of the deliberative process itself is genuinely disputed, the privilege ―designed to shield that process from public scrutiny must yield to the overriding public policies expressed in the civil rights laws.‖ Scott, 219 F.R.D. at 337 (quoting Grossman v. Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y. 1989)). Hence, courts often reject assertions of deliberative process privilege in cases wherein the agency‘s deliberations themselves are the subject of constitutional review. See Griffin-El, 2009 WL 1606891, at *9; Scott, 219 F.R.D. at 337. The deliberative process privilege, like all evidentiary privileges, must be narrowly construed. Redland Soccer Club, 55 F.3d at 856.
As a threshold matter, the court cannot determine at this juncture whether the deliberative process privilege should apply to email correspondence between Boyd and Perez in their capacities as Department counsel. (See Doc. 43 at 11). Defendants generally aver that the email in question ―is privileged attorney work product and deliberative process.‖ (Id.) The court cannot test the merits of this assertion on the present record. Consequently, the court will defer resolution of Johnson‘s motion to compel production of this evidence pending in camera review of the subject correspondence.
9

The predecisional and deliberative nature of the balance of the disputed RRL evidence is manifest from the parties‘ descriptions thereof. Per Department policy, the DC-46 vote sheets and RRL annual review sheets comprise the collective body of institutional recommendations, observations, and opinions upon which Secretary Wetzel renders annual RRL decisions. (Doc. 43 at 8); see PA. DEP‘T OF CORR., NO. DC-ADM 802(2)(D)(8), ADMINISTRATIVE CUSTODY PROCEDURES (2014). Similarly, defendants describe the McPherson memo as a compilation of ―McPherson‘s impressions, suggestions, and recommendations to Wetzel regarding the RRL review process for Johnson in 2015.‖ (Doc. 43 at 10). It cannot be reasonably disputed that such documents are both predecisional and deliberative. The same is true of redacted RRL psychological evaluations, an RRL checklist, and the Barone memo, each of which was provided to Secretary Wetzel to assist in his RRL determinations. (See Doc. 40 at 18-21; Doc. 43 at 14-15).
The court is therefore compelled to determine whether Johnson‘s need for the disputed evidence overcomes the arguably applicable deliberative process privilege. The weighted balance of the Redland Soccer Club factors dictates an answer in the affirmative. Information about the Department‘s deliberative process for RRL placement is directly relevant to this litigation—indeed, this evidence represents the punctum saliens of Johnson‘s constitutional claims. Accordingly, the first factor weighs heavily in favor of disclosure. Concerning availability of other evidence, defendants assert that the Secretary‘s rationale alone is relevant to the RRL determinations and offer that Secretary Wetzel will be available to testify; this contention ignores defendants‘ own concession that Secretary Wetzel‘s decision is
10

informed entirely by the withheld and redacted evidence. Hence, the second factor likewise favors Johnson, as the requested evidence is the best evidence available.
The third factor, the seriousness of this litigation, also weighs in favor of disclosure. Johnson charges defendants with trifold constitutional violations, contending that their actions have caused significant and enduring psychological trauma. (See Doc. 1). Indeed, in analogous civil rights cases, courts have been loath to permit invocation of the deliberative process privilege unless the government‘s assertion is so compelling as to ―overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action.‖ Griffin-El, 2009 WL 1606891, at *3 (quoting Crawford v. Dominic, 469 F. Supp. 260, 262 (E.D. Pa. 1979)). Similarly, and as noted supra, when the constitutional integrity of the government‘s deliberative process is called into question, the asserted privilege is accorded little weight. See id. at *9; Scott, 219 F.R.D. at 337 (quoting Grossman, 125 F.R.D. at 381). For this reason, the fourth factor—the nature of the government‘s role in the litigation—also favors overruling the privilege.
The only factor lending support to defendants‘ privilege assertion is the fifth, which tasks courts to consider whether the disclosure of internal deliberative information might chill government employees from freely exchanging ideas and opinions critical to institutional administration. See Redland Soccer Club, 55 F.3d at 854. Defendants offer no specific, factual support for this factor; instead, defendants quote selectively from a prior decision of this court and assert broadly that release of the subject documents ―would interfere with the [Department‘s] ability to ‗protect institutional safety and to avoid manipulation of the system by
11

inmates.‘‖ (Doc. 43 at 9 (quoting Mincy v. Chmielewski, No. 1:05-CV-292, 2006 WL 3042968, at *1 (M.D. Pa. Oct. 25, 2006) (Conner, J.))). This court‘s decision in Mincy does not offer the unqualified privilege that defendants seek; indeed, Mincy is materially distinct in that the privileged information sought by the plaintiff was only peripherally relevant to the essential substance of the litigation. See Mincy, 2006 WL 3042968, at *1-2.
After considering the above factors in toto, the court finds that Johnson has overcome the deliberative process privilege to the extent it applies to any RRLrelated documents. The court‘s holding casts no doubt upon the sincerity of defendants‘ stated concerns regarding the potential chilling effect of disclosure. (See Doc. 43 at 9). Nonetheless, withholding or redacting the very evidence which informs the core of Johnson‘s constitutional remonstrance would unfairly impede Johnson‘s ability to fully prosecute his claims. Griffin-El, 2009 WL 1606891, at *11. The court concludes that defendants cannot avail themselves of the deliberative process privilege in this litigation. The court will grant Johnson‘s motion on this issue.
B. Relevance Objection Johnson requests that the Department provide information concerning the custodial status of ten other inmates who, like Johnson, have an escape history and at one time were designated to the RRL. (See Doc. 40 at 23; Doc. 43 at 16). Johnson argues that the Department‘s treatment of similarly-situated inmates is discoverable and relevant to whether defendants‘ stated rationale for Johnson‘s continued confinement is justifiable. (See Doc. 40 at 24). Defendants object to the
12

request for other inmate information on both security risk and relevance grounds. (See Doc. 43 at 15-18).
As noted supra, Federal Rule of Civil Procedure 26(b)(1) provides that a party ―may obtain discovery regarding any nonprivileged matter that is relevant to any party‘s claim or defense and proportional to the needs of the case.‖ FED. R. CIV. P. 26(b)(1). Rule 26(b)(1) provides for a broad scope of discovery. As a consequence, courts often—and appropriately—apply liberal treatment to discovery rules. See, e.g., Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300 F.R.D. 225, 226 (M.D. Pa. 2014) (citing Great W. Life Assurance Co. v. Levithan, 152 F.R.D. 494, 497 (E.D. Pa. 1994)). Nonetheless, a ―valid claim[] of relevance or privilege‖ operates to restrict a court‘s otherwise broad discretion under Rule 26(b)(1). McConnell v. Canadian Pac. Realty Co., 280 F.R.D. 188, 192-93 (M.D. Pa. 2011).
The court concludes that the information sought by Johnson is facially relevant to Johnson‘s constitutional claims and thus is discoverable under Rule 26. Defendants rejoin that Johnson‘s claims are unique to his situation, such that any measurement of his circumstances against other inmates is inappropriate. It is true that Johnson does not state equal protection or discrimination claims which require a comparative analysis. (See Doc. 1). Nonetheless, defendants‘ treatment of similarly-situated inmates may bear upon credibility inquiries or otherwise allow Johnson‘s counsel to test the veracity of the Department‘s position with respect to Johnson‘s continued placement on the RRL. Given the broad and liberal discovery philosophy espoused by Rule 26(b)(1), the court finds that this particular evidence is
13

both relevant and discoverable. The court will grant Johnson‘s motion to compel evidence regarding the custodial status of similarly-situated inmates.
C. Security Risk Assertion Defendants alternatively contend that security concerns counsel against disclosure of the RRL documents and information regarding other inmates‘ housing assignments to Johnson. Defendants also assert that an ―Integrated Case Summary – Classification‖ and ―Inmate Query – Separations‖ must be withheld or produced subject to a confidentiality agreement or protective order on security grounds. According to defendants, the case summary provides a ―snapshot overview of the inmate‘s classification information‖ and contains ―evaluations, assessments and recommendations‖ by Johnson‘s evaluators, and the separations document identifies prison staff and other inmates who, for security reasons, ―are not to be located within the same institution or incarcerated with the subject inmate.‖ (Doc. 43 at 12). Defendants maintain that disclosure of such documents ―could pose a security risk to staff, inmates, and the institution as a whole.‖ (Id. at 12-13). On this score, the court agrees in principle with defendants. Disclosure of sensitive documents generated by prison personnel may jeopardize institutional security and individual safety of prison staff, and the potential threat posed by such disclosure is a proper consideration for the court. See, e.g., Mearin v. Folino, No. 11-571, 2012 WL 4378184, at *3-7 (W.D. Pa. Sept. 24, 2012); Mincy, 2006 WL 3042968, at *1-2. Nonetheless, given the uniquely probative value of the evidence sought by Johnson, the court and the parties must endeavor to strike a proper balance
14

between Johnson‘s right to prosecute his claims and the defendants‘ interest in

institutional safety.

This court has previously authorized disclosure of sensitive but highly

relevant prisoner mental health records subject to a ―precondition of execution of a

confidentiality agreement.‖ Mincy, 2006 WL 3042968, at *2. An alternative option

identified by the parties sub judice is ―an appropriate protective order‖ which, if

necessary, ―restrict[s] the disclosure of certain information to . . . counsel alone.‖

Gevas v. McLaughlin, 798 F.3d 475, 486 (7th Cir. 2015). However, the undersigned

cannot determine whether either option is necessary or appropriate without an in

camera inspection of the documents in question and without a statement from the

Secretary specifically identifying the nature and source of the institutional threat

posed by disclosure. Cf. Mincy, 2006 WL 3042968, at *2.

In light of the above, the court will direct defendants to produce the following

documents to the court for in camera review:



Four (4) DC-46 vote sheets, dated September 21, 2012, October 16,

2013, August 28, 2014, and August 20, 2015;



Three RRL annual review sheets;



The memorandum from Senior Policy Analyst Madeline McPherson to

John Wetzel, Secretary of the Department of Corrections

(―Department‖) dated October 23, 2015;



The ―Integrated Case Summary – Classification‖;



The ―Inmate Query – Separations‖;



The ―RRL Checklist‖;

15



Four annual RRL psychological evaluations dated January 13, 2012,

August 19, 2013, November 20, 2014, and October 6, 2015; and



The memorandum from Superintendent Michael Barone to Secretary

Wetzel dated August 4, 2009.

Counsel for defendants shall provide the above documents to the court forthwith,

as more specifically set forth in the accompanying order of today‘s date. Defense

counsel shall also present to the court a statement by Secretary Wetzel identifying

with particularity the nature and source of the threat posed by disclosure of each

of the above-referenced documents. The court will thereafter determine whether

a confidentiality order or other directive limiting production and disclosure is

compelled by institutional security concerns.

III. Conclusion

The court will grant in part and defer in part Johnson‘s motion (Doc. 39) to

compel discovery. An appropriate order shall issue.

Dated:

August 5, 2016

/S/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania