19-2858-pr 

Reynolds v. Quiros, et al. 

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2019

No. 19-2858-pr

RICHARD REYNOLDS,

Plaintiff-Appellee,

v.

ANGEL QUIROS, LEO ARNONE, EDWARD MALDONADO, GERARD GAGNE, 

MARK FRAYNE, SCOTT SEMPLE, WILLIAM FANEUFF, in their Individual 

and Official Capacities,

Defendants-Appellants.*

On Appeal from the United States District Court

for the District of Connecticut

ARGUED: MAY 13, 2020

DECIDED: MARCH 11, 2021

* The Clerk of Court is directed to amend the official caption to conform to 

the above. 
2

Before: KEARSE and CABRANES, Circuit Judges.†

Defendants-Appellants Angel Quiros, Leo Arnone, Edward 

Maldonado, Gerard Gagne, Mark Frayne, Scott Semple, and William 

Faneuff, who are current and former Connecticut Department of 

Correction officials, appeal from an August 27, 2019 judgment and 

permanent injunction entered in the United States District Court for 

the District of Connecticut (Stefan R. Underhill, Chief Judge) principally 

granting Plaintiff-Appellee Richard Reynolds’ motion for summary 

judgment, and denying Defendants’ motion for summary judgment. 

Reynolds, a prisoner serving a life sentence since 1999 in Connecticut’s 

Northern Correctional Institution, brought the underlying action 

pursuant to 42 U.S.C. § 1983, alleging that the conditions of his

confinement violate his rights under Article I, Section 10 (the Bill of 

Attainder Clause) of the Constitution, as well as the Eighth and 

Fourteenth Amendments of the Constitution. For the reasons we set 

forth below, we AFFIRM IN PART and VACATE IN PART the

August 27, 2019 judgment of the District Court, AFFIRM IN PART

and VACATE IN PART the August 27, 2019 permanent injunction,

† Judge Peter W. Hall, originally assigned to the panel, did not participate 

in consideration of this decision. The two remaining members of the panel, who 

are in agreement, have decided this case in accordance with Second Circuit Internal 

Operating Procedure E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone, 140 

F.3d 457, 458 (2d Cir. 1998).
3

and REMAND the cause to the District Court for further proceedings 

consistent with this opinion.

Judge Kearse concurs fully in the opinion and judgment of the 

Court and also files a separate opinion.

BRETT DIGNAM (Sarah Hong Lin, Caleb 

King, and Mary Marshall, Law Students

appearing under Local Rule 46.1(e), on the 

brief), Morningside Heights Legal Services 

Inc., New York, NY, for Plaintiff-Appellee.

STEVEN R. STROM, Assistant Attorney 

General (Clare Kindall, Solicitor General,

and Madeline A. Melchionne, Assistant 

Attorney General, on the brief) for William 

Tong, Attorney General of Connecticut, 

Hartford, CT, for Defendants-Appellants.

JOSÉ A. CABRANES, Circuit Judge:

Defendants-Appellants Angel Quiros, Leo Arnone, Edward 

Maldonado, Gerard Gagne, Mark Frayne, Scott Semple, and William 

Faneuff (jointly, “Defendants”), who are current and former 

Connecticut Department of Correction officials, appeal from an 

August 27, 2019 judgment and permanent injunction entered in the
4

United States District Court for the District of Connecticut (Stefan R. 

Underhill, Chief Judge) principally granting Plaintiff-Appellee Richard 

Reynolds’ (“Reynolds”) motion for summary judgment, and denying 

Defendants’ motion for summary judgment. Reynolds, a prisoner 

serving a life sentence since 1999, latterly in Connecticut’s Northern 

Correctional Institution (“NCI”), brought the underlying action 

pursuant to 42 U.S.C. § 1983, alleging that the conditions of his

confinement violate his constitutional rights under Article I, Section 10

(the Bill of Attainder Clause) of the United States Constitution,1 as well 

as the Eighth2 and Fourteenth3 Amendments of the Constitution.

On appeal, Defendants challenge the District Court’s grant of 

summary judgment, arguing that the District Court: (1) improperly 

made credibility determinations and decided triable issues of material 

facts that the parties dispute; (2) erred in concluding as a matter of law 

that Reynolds’ conditions of confinement violate the Eighth 

1 “No State shall ... pass any Bill of Attainder ....” U.S. Const. art. I, § 10, 

cl. 1. 

2 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel 

and unusual punishments inflicted.” U.S. Const. amend. VIII. See Phelps v. Kapnolas,

308 F.3d 180, 185 (2d Cir. 2002) (noting that the Eighth Amendment “applies to the 

States through the Fourteenth Amendment . . . and enjoins them from inflicting 

cruel and unusual punishments.” (internal citation and quotation marks omitted)); 

accord Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality opinion)

(holding that the Fourteenth Amendment incorporates the Eighth Amendment’s 

protection from cruel and unusual punishment). 

3 “No State shall . . . deprive any person of life, liberty, or property, without 

due process of law; nor deny to any person within its jurisdiction the equal 

protection of the law.” U.S. Const. amend. XIV, § 1.
5

Amendment and the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment; and (3) erred in concluding as a matter of law 

that the Connecticut statute governing Reynolds’ conditions of 

confinement is an unconstitutional “Bill of Attainder” under Article I, 

Section 10 of the Constitution. 

Defendants also argue that the permanent injunction entered by 

the District Court is overly broad in violation of the Prison Litigation 

Reform Act,4 and that the District Court erred in holding that 

Defendants were not entitled to qualified immunity. 

We hold that the District Court erred by deciding disputed 

issues of material facts in granting summary judgment in Reynolds’ 

favor. We affirm, however, the judgment of the District Court insofar 

as it concluded that Conn. Gen. Stat. § 18-10b is an unconstitutional 

bill of attainder, and that Defendants violated Reynolds’ rights under 

the Equal Protection Clause of the Fourteenth Amendment. 

I. BACKGROUND

We draw the facts, which are largely undisputed except as 

specified below, from the District Court’s August 27, 2019 

Memorandum of Decision5 (“MOD”) and from the record before us. 

4 18 U.S.C. §§ 3626(a)(1)(A), et seq. 

5 See generally Reynolds v. Arnone, 402 F. Supp. 3d 3 (D. Conn. 2019). 
6

A. Factual Background 

Reynolds was convicted of the aggravated murder of Waterbury 

Police Officer Walter Williams and was sentenced to death in 1995. The 

Connecticut Supreme Court upheld Reynolds’ sentence in 2003.6 In 

2012, the Connecticut Legislature adopted Conn. Gen. Stat. § 18-10b 

(“Section 18-10b”),7 which abolished the death penalty prospectively 

and provided the terms and conditions of imprisonment to replace the 

death penalty for convictions for capital felonies, including 

confinement in a Special Circumstances Unit (“Special Circumstances 

6 See generally State of Conn. v. Reynolds, 264 Conn. 1 (2003). 

7 Section 18-10b provides in relevant part: 

(a) The Commissioner of Correction shall place an inmate on special 

circumstances high security status and house the inmate in 

administrative segregation until a reclassification process is 

completed under subsection (b) of this section, if (1) the inmate is 

convicted of the class A felony of murder with special circumstances 

committed on or after April 25, 2012, under the provisions of section 

53a-54b in effect on or after April 25, 2012, and sentenced to a term 

of life imprisonment without the possibility of release, or (2) the 

inmate is in the custody of the Commissioner of Correction for a 

capital felony committed prior to April 25, 2012, under the 

provisions of section 53a-54b in effect prior to April 25, 2012, for 

which a sentence of death is imposed in accordance with section 53a46a and such inmate’s sentence is (A) reduced to a sentence of life 

imprisonment without the possibility of release by a court of 

competent jurisdiction, or (B) commuted to a sentence of life 

imprisonment without the possibility of release.
7

Unit”).8 In 2015, in a 4-3 decision, the Connecticut Supreme Court 

ruled that the death penalty was unconstitutional under the state 

constitution as applied to capital sentences already imposed.9

Subsequently, in 2016, Reynolds was re-sentenced under Section 18-

10b to life imprisonment without the possibility of release, and subject 

to the conditions of confinement prescribed by that statute.10

B. Procedural History 

Reynolds filed a pro se complaint in the District Court on 

October 4, 2013. Discovery was conducted and later reopened after 

counsel for Reynolds was appointed. On June 29, 2017, Reynolds filed 

a Second Amended Complaint (the “SAC”), which was followed by 

additional discovery. Both parties cross-moved for summary 

judgment on November 9, 2018, seeking judgment as a matter of law 

on all issues and claims presented by the pleadings. 

On August 27, 2019, the District Court issued its MOD granting 

Reynolds’ motion for summary judgment and denying Defendants’ 

motion for summary judgment on qualified immunity and exhaustion 

grounds. The District Court concluded, inter alia, that the prison 

8 See App’x 561-565, Joint Local Rule 56(a) Statement of Stipulated 

Undisputed Facts (describing generally the conditions in the Special Circumstances 

Unit). 

9 See State of Conn. v. Santiago, 318 Conn. 1 (2015). 

10 See Reynolds v. Comm’r of Correction, 321 Conn. 750, 765 (2016) (affirming 

the judgment of the habeas court but vacating Reynolds’ death sentence); see also

Notes 7 and 8, ante.
8

officials at NCI “were aware of the mental health risks associated with 

prolonged isolation.”11 Accordingly, the District Court held that the 

officials “knew or reasonably should have known of the serious risks 

of harm to Reynolds from his conditions of confinement; [and] their 

failure to ameliorate those conditions reflects deliberate indifference”

to such risks in violation of Reynolds’ Eighth Amendment right to be 

free from cruel and unusual punishment.12

The District Court also entered judgment in Reynolds’ favor on 

his due process claim regarding the so-called “classification 

hearings”—which prison officials conduct to make an individualized 

assessment of risks and needs of prisoners. In doing so, the District 

Court found that Defendants failed to provide even minimal due 

process protections, and that there was “no evidence in the record to 

suggest that Reynolds was provided any advance notice or an 

opportunity to be heard during his reclassification process pursuant to 

Section 18-10b.”13

11 Reynolds, 402 F. Supp. 3d at 21. 

12 Id. at 23. But see Farmer v. Brennan, 511 U.S. 825, 826-37 (1994) (In expressly 

rejecting a “purely objective test for determining liability—whether the risk is 

known or should have been known,” the Court held that a prison official cannot be 

found liable for deliberate indifference under the Eighth Amendment “unless the 

official knows of and disregards an excessive risk to inmate health or safety.”). We 

do not comment further in this opinion on the District Court’s legal analysis on 

Reynolds’ Eighth Amendment claim. See Part II.D, post. 

13 Id. at 29. 
9

The District Court also held that Reynolds had prevailed on his 

equal protection claims, concluding that, with respect to classifications 

that determine conditions of confinement, Reynolds was similarly 

situated to two other inmates, Terry Johnson (“Johnson”) and Eduardo 

Santiago (“Santiago”), both convicted murderers formerly sentenced 

to death and now serving mandatory life sentences.14 The District 

Court concluded that, with respect to his “Risk Level” and the 

conditions of the prison facility, Reynolds “arbitrarily” received a 

classification score of “5,”15 whereas Johnson and Santiago received a 

“Level 4 Risk Level, which enables [Johnson and Santiago] to live 

among the general population at [MacDougall-Walker Correctional 

Institution]16 and avoid the harsh conditions that Reynolds endures [at 

NCI].”17

14 See id. at 30-33.

15 According to the Department of Correction’s Classification Manual, 

“[a]ssignment to Administrative Segregation, Overall Risk Level 5, shall be 

considered when any totality of facts, information or circumstances . . . indicates an 

immediate threat to safety and/or security of the public, staff or other inmates.” 

App’x 912. 

16 MacDougall-Walker Correctional Institution (“MacDougall”) is a 

“high/maximum security level multi-mission facility for adult males . . . [that] 

provides a highly structured environment to manage long-term sentenced 

offenders, protective custody offenders and high bond unsentenced offenders with 

programs designed to address the needs of each population.” MacDougall-Walker 

CI, CT.GOV, https://portal.ct.gov/DOC/Facility/MacDougall-Walker-CI (last visited 

November 12, 2020). 

17 Reynolds, 402 F. Supp. 3d at 33. In contrast to MacDougall, NCI is a “level 

five, maximum security institution . . . designated to manage those inmates who 
10

Finally, the District Court ruled that Section 18-10b constitutes

an unlawful bill of attainder because, inter alia, “Reynolds was not 

afforded a judicial trial regarding the punishment inflicted by Section

18-10b.”18 The District Court did not reach Reynolds’ ex post facto

claim,19 and denied Defendants’ claims that they are entitled to 

qualified immunity.20

As a remedy, the District Court entered a Permanent Injunction 

Order (“PIO”) enjoining Department of Correction officials: 

(1) From placing Reynolds in [“]special circumstance[s] high 

security status;[”]

(2) From imposing on Reynolds the conditions of more than 

twenty-one hours per day alone in his cell, segregation from 

have demonstrated a serious inability to adjust to confinement posing a threat to 

the safety and security of the community, staff and other inmates, are sentenced to 

death, or posses[s] a high bond . . . [that] provides a highly structured, secure and 

humane environment while affording inmates an opportunity through positive 

behavior and program participation to return to a less restrictive facility.” Northern 

CI, CT.GOV, https://portal.ct.gov/DOC/Facility/Northern-CI (last visited March 10, 

2021). 

18 Id. at 44. 

19 In his SAC, Reynolds also alleges that the “[e]nactment of [Section 18-10b] 

and Defendants’ imposition of its punishment ... violate[s] the ex post facto clause 

...” App’x 52. See also U.S. Const. art. I, § 10, cl. 1. (“No State shall ... pass any ... ex 

post facto law ....”). Accord Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) 

(Jackson, J.) (“It always has been considered that that which [the ex post facto 

provision] forbids is penal legislation which imposes or increases criminal 

punishment for conduct lawful previous to its enactment.”). 

20 See Reynolds, 402 F. Supp. 3d at 38-39.
11

inmates who are not on special circumstances high security 

status, limitation of recreational activity to a maximum of two 

hours per day, and no-contact visitation; 

(3) From enforcing Connecticut General Statutes Section 18-

10b against any current or future inmate; [and further 

directing Defendants]

(4) [To] immediately, and at least every six months thereafter, 

provide Reynolds with a meaningful individualized 

classification determination using procedures that are the 

same or substantially similar to the procedures used for 

general population inmates; and 

(5) [To] house Reynolds in conditions that are similar to those 

of [Johnson and Santiago] at the time [its] Order issued.21

In timely appealing, Defendants requested a stay of the PIO 

pending appeal. Judge Bianco granted a temporary stay on November 

1, 2019, pending the decision on the stay motion by a three-judge 

motions panel, which granted the stay on January 7, 2020.22

II. DISCUSSION

We review a grant of summary judgment de novo, construing the 

evidence in the light most favorable to the non-movant and drawing 

all reasonable inferences in the non-movant’s favor.23

21 Sp. App’x 58-59. 

22 Sp. App’x 73; Dkt. No. 102 (Pooler, Hall, Lohier, Circuit Judges). 

23 See Natofsky v. City of New York, 921 F.3d 337, 344 (2d Cir. 2019). 
12

A. The District Court’s Application of the Summary Judgment 

Standard 

A district court may grant summary judgment only where “the 

movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.”24 In 

evaluating a motion for summary judgment, a district court may not 

make credibility determinations, or weigh evidence.25

We agree with Defendants that, in granting summary judgment 

to Reynolds, the District Court impermissibly decided disputed issues 

of material facts. Specifically, the parties vigorously disagree as to the 

precise conditions imposed in the Special Circumstances Unit in which 

Reynolds is housed, which in turn has bearing on whether the 

conditions may be properly characterized as “solitary confinement.” 

This is relevant because if the imposed conditions did constitute 

solitary confinement, Reynolds could arguably prevail on his claims 

alleging violations of the Eighth Amendment and the Due Process 

Clause of the Fourteenth Amendment. In its decision, the District 

Court focused on four “core” facts that it characterized as 

“undisputed”: 

24 Fed. R. Civ. P. 56(a). 

25 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility 

determinations, the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge . . . .”). 
13

[1] Reynolds is confined to his cell an average of 21 to 22 hours 

a day[;]

[2] He is unable to interact with other inmates in general 

population[;]

[3] He is unable to physically embrace his visitors[;] 

[4] Other than his limited recreation time, professional or 

medical visits, and short fifteen-minute increments [sic] to eat 

and shower, Reynolds will spend the remainder of his life alone 

in a small cell.26

In their motion for summary judgment, however, Defendants 

included voluminous submissions purporting to show that the Special 

Circumstances Unit is not, nor even comparable to, “solitary 

confinement,”27 and that any potential differences between the two are

material facts that should be decided by a jury. For example, 

Defendants expressly dispute Reynolds’ contentions that he is 

26 Reynolds, 402 F. Supp. 3d at 20. 

27 In their brief on appeal, Defendants describe what they characterize as 

conditions of “true solitary confinement” as found in Wilkinson v. Austin, 545 U.S. 

209, 214 (2005), in which the supermax facility in question required “meals in the 

cells, no communications by and between inmates, no recreation within the cells, 

perpetual lights on in the cells and only one hour a day outside of the cell.” 

Appellant’s Br. at 63. Defendants contend that these conditions are not comparable 

to those at NCI. Defendants also rely on the expert report of Dr. Gregory Saathoff, 

a prison psychiatrist which concluded that the conditions of the Special 

Circumstances Unit did not constitute “solitary confinement”—a conclusion based 

on comparisons to conditions imposed in other maximum-security prisons and 

correctional facilities. See App’x 272-92. 
14

“confined to his cell an average of 21 to 22 hours a day,” and that 

“other than limited recreation time, professional or medical visits, and 

short fifteen-minute increments [sic] to eat and shower ... Reynolds 

will spend the remainder of his life alone in a small cell.”28 In our view, 

the declarations of Angel Quiros29 and Gregorio Robles30 contesting 

Defendants’ assertions raise triable issues of fact. 

Accordingly, the District Court erred in granting summary 

judgment in favor of Reynolds as to his Eighth Amendment and 

Fourteenth Amendment Due Process claims because material facts 

remain in dispute. 

28 Appellee’s Br. at 17; Appellant’s Br. at 19-21. 

29 See App’x 118-19, Declaration of District Administrator Angel Quiros 

(stating that, when Quiros was warden from July 2009 to July 2011, death row 

inmates at NCI “were never held in solitary confinement” because, inter alia, 

“[w]hen they went out to recreation, they would be alone in a single controlled 

exercise area . . . but they could talk to other inmates who were also out for 

recreation at the same time”; death row inmates “could have social visits ... as well 

as social phone calls”; and that Quiros “added weekend recreation to the schedule 

for death row inmates” in order to “increase[] the opportunity for [their] out-ofcell-time”). 

30 See App’x 155, Declaration of Captain Gregorio Robles, Unit Manager 

(stating that “[i]nmates classified as special circumstances high security could send 

and receive mail to and from outside [NCI]”; “[i]nmates classified as special 

circumstances high security are no longer placed in restraints when they leave their 

cells”; “special circumstances high security inmates may interact with one 

another[,] ... can play cards or board games[,] ... [and] can make telephone calls or 

read books”; “special circumstances high security inmates have multiple 

opportunities each day to interact, face to face, with staff and other inmates 

assigned to this unit”). 
15

B. Bill of Attainder

The question of whether Section 18-10b constitutes a bill of 

attainder does not appear on this record to raise any facts in dispute. 

Accordingly, we review the decision for errors of law, and we do so de 

novo. 

The Supreme Court has described a “bill of attainder” as “a law 

that legislatively determines guilt and inflicts punishment upon an 

identifiable individual without provision of the protections of a 

judicial trial.”31 And the Bill of Attainder Clause in Article I, section 10 

of the Constitution, as defined by the Supreme Court, prohibits States 

from enacting such laws, just as Article I, section 9 prohibits Congress 

from adopting such legislation. “[T]he Supreme Court has identified 

three elements of an unconstitutional bill of attainder: (1) ‘specification 

of the affected persons,’ (2) ‘punishment,’ and (3) ‘lack of a judicial 

trial.’”32

Defendants have interpreted Section 18-10b as applied to 

Reynolds to require that Reynolds be permanently placed on Special 

Circumstances Unit high security status without the possibility of 

release into the general prison population. The statute further requires

that: (1) Reynolds be housed “separate from inmates who are not on 

special circumstances high security status”; (2) his “movements be 

31 Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1977). 

32 ACORN v. United States, 618 F.3d 125, 136 (2d Cir. 2010) (quoting Selective 

Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847 (1984)). 
16

escorted or monitored”; (3) he be moved “to a new cell at least every 

ninety days”; (4) “at least two searches of [Reynolds’] cell each week”;

(5) “no contact be permitted” during Reynolds’ social visits; (6) he be 

“assigned to work assignments that are within the assigned [Special 

Circumstances Unit]”; and (7) he be “allowed no more than two hours 

of recreational activity per day.”33

Relying upon a legislative record that is replete with references 

to Reynolds and ten other individuals who at that time were sentenced 

to death in Connecticut, the District Court held that Section 18-10b 

satisfies the three elements of an unconstitutional bill of attainder.34

We consider each element in turn.

1. Specification of the Affected Persons

The Supreme Court has instructed that a law may be an 

attainder when it “singl[es] out ... an individual for legislatively 

prescribed punishment ... whether the individual is called by name or 

33 See Conn. Gen. Stat. § 18-10b(c)(1)(B), (C). 

34 Legislators gave heightened attention to two of the ten other individuals: 

the “much reviled perpetrators of the widely publicized 2007 home invasion and 

murder of three members of Cheshire’s Petit family.” Santiago, 318 Conn. at 116. 

Indeed, the “public outrage at the perpetrators in the Cheshire case in particular 

was a primary reason the [provision] was drafted to retain the death penalty 

retroactively.” Id. at 117 n. 108 (collecting statements from legislators about the role 

of the Cheshire case in drafting the bill).
17

described in terms of conduct which, because it is past conduct, 

operates only as a designation of particular persons.”35

On its face, Section 18-10b applies to any “inmate ... in the 

custody of the Commissioner of Correction for a capital felony 

committed prior to April 25, 2012, under the provisions of section 53a54b in effect prior to April 25, 2012, for which a sentence of death is 

imposed.”36 There is evidence in the record indicating that the 

legislature was well aware that only eleven individuals could ever 

meet this description at the time of the provision’s enactment.37 And 

where, as here, “past activity serves as a point of reference for the 

ascertainment of particular persons ineluctably designated by the 

legislature for punishment, the Act may be an attainder.”38

The explicit application of the statute only to inmates sentenced 

to death as of April 25, 2012 supports a finding that the statute, by 

reason of its identification of a closed category of persons, is arguably

a bill of attainder. The fact that the statute does not mention the 

inmates by name is immaterial, for it mentions a category of persons 

35 Communist Party of the United States v. Subversive Activities Control Bd., 367 

U.S. 1, 86 (1961). 

36 Conn. Gen. Stat. § 18-10b(a). 

37 See, e.g., 55 H.R. Proc., Pt. 4, 2012 Sess., p. 87 (statement of Rep. Cafero) 

(“Many people are making their decision on whether or not to vote for this [bill 

prospectively repealing the death penalty] because they are trusting that even if ... 

it passes, those 11 animals on death row will die.”). 

38 Selective Serv. Sys., 468 U.S. at 847 (quotation marks and internal citation 

omitted). 
18

defined only by reference to some pre-existing status. It is well settled 

that laws that target persons or groups by a revealing description,

instead of by name, are equally impermissible under the Bill of 

Attainder Clause.39 This is so because a requirement that the names of 

targeted individuals be in the law would be easy to circumvent, and 

would effectively undermine the protections of the Bill of Attainder 

Clause.

The Connecticut legislature abolished the death penalty 

prospectively in 2015 because there was not enough support to pass a 

full repeal—that is, to abrogate the death penalty in those cases where 

it had been imposed prior to enactment of the statute.40 Legislators at 

the time recognized that there was no consistent method to distinguish 

between the eleven individuals then on death row and those who 

might receive the death penalty in the future.41 The resulting 

39 See United States v. Brown, 381 U.S. 437, 461 (1956) (invalidating as an 

unlawful bill of attainder a law that punished the Communist Party by name and 

noting that it “was not uncommon for English acts of attainder to inflict their 

deprivations upon relatively large groups of people, sometimes by description 

rather than [by] name”); Cummings v. Missouri, 71 U.S. 277, 323 (1866) (Stephen J. 

Field, J.) (invalidating attainder laws penalizing large groups of former 

Confederate sympathizers and remarking that “these bills are generally directed 

against individuals by name; but they may be directed against a whole class”). 

40 See Santiago, 318 Conn. at 68.

41 See, e.g., 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1054 (remarks of Rep. John 

Hetherington) (“It says that, prospectively, it operates to spare killers in the future 

but not a certain [eleven] who currently occupy death row. So it is a very curious 

moral position; that is, the morality changes depend[ing] upon when it’s applied.”); 

55 H.R. Proc., Pt. 4, 2012 Sess., p. 1306 (remarks of Rep. Ernest Hewett) (“If you are 
19

legislative compromise directed that the eleven inmates then on death 

row would be singled out for especially restrictive conditions of 

confinement in the event that they thereafter received a reduced or 

commuted sentence.42

Defendants argue that Section 18-10b cannot be a bill of 

attainder because it did not expressly apply to Reynolds or the other 

death row inmates at the time it was enacted. But that argument 

appears to prove too much and elevates form over substance. To be 

sure, Reynolds became subject to Section 18-10b only after the 

Connecticut Supreme Court held that capital punishment violated the 

state constitution, regardless of the date of the imposition of the 

sentence of death—the very possibility that Section 18-10b anticipated 

serious about innocent people being put to death, then wait until you have the votes 

for a total repeal .... You will not have my vote, but at least you would have done 

it the right way.”). 

42 See 55 H.R. Proc., 2012 Sess., p. 178 (remarks of Rep. Gerald M. Fox) 

(stating that Section 18-10b would further “restrict [the] incarceration” of the eleven 

people then sentenced to death, should those sentences be commuted, and “if they 

were no longer on death row,” they would be “limited to special circumstances 

high security status”). Several legislators specifically referred to Reynolds by name 

during these debates. See, e.g., Conn. J. Standing Comm. Hearing, Jud. Pt. 8, 2012 

Sess. p. 62 (statement of Rep. Adinolfi) (“I think I could bend ... if we gave them 

solitary confinement for life. ... You have Richard Reynolds, who is [convicted of]

murdering Waterbury Police Officer Walter T. Williams.”); 55 H.R. Proc., Pt. 4, 2012 

Sess., pp. 224-25 (statement of Rep. Davis) (“I’d like to bring attention to one 

particular inmate on death row ...[,] Richard Reynolds.”). 
20

and intended to govern by its express terms.43 Indeed, the fact that the 

state legislature contemplated that very contingency and singled out 

Reynolds and ten similarly-situated inmates for special treatment in 

the event that any of them avoided the death sentence easily meets the 

threshold test of “specification” required by the Bill of Attainder 

Clause. 

2. “Punishment”

To determine whether a law directed at a readily identified 

party is punitive, courts look to three factors: “(1) whether the 

challenged statute falls within the historical meaning of legislative 

punishment; (2) whether the statute, ‘viewed in terms of the type and 

severity of burdens imposed, reasonably can be said to further 

nonpunitive legislative purposes’; and (3) whether the legislative 

record ‘evinces a [legislative] intent to punish.’”44

i. Historical Test 

As recently as 2010, we observed that “[t]he Supreme Court has 

recognized that certain types of [legislative] punishment are ‘so 

disproportionately severe and so inappropriate to nonpunitive ends 

43 See Conn. Gen. Stat. § 18-10b(a) (the section applies only to an inmate who, 

inter alia, has had his sentence “reduced to a sentence of life imprisonment without 

the possibility of release by a court of competent jurisdiction”). 

44 Selective Serv. Sys., 468 U.S. at 852; see also Consolidated Edison Co. of N.Y. v. 

Pataki, 292 F.3d 338, 350 (2d Cir. 2002) (“[A] statute need not fit all three factors to 

be considered a bill of attainder; rather, those factors are the evidence that is 

weighed together in resolving a bill of attainder claim.”).
21

that they unquestionably have been held to fall within the proscription 

of the [Bill of Attainder Clause].’”45 These legislative punishments, 

when disproportionately severe as imposed, include death, 

imprisonment, confiscation of property, and prohibition from 

specified employments or vocations.46

Consistent with the history of the proscription of bills of 

attainder, Section 18-10b’s restrictions are plainly punitive, as it directs 

the Commissioner of Correction to “house [special circumstances] 

inmate[s] in administrative segregation,” which is Connecticut’s most 

restrictive form of incarceration.47

ii. Functional Test 

We have likewise noted that “[t]he functional test of 

punishment looks to whether the challenged law, ‘viewed in terms of 

the type and severity of burdens imposed, reasonably can be said to 

further nonpunitive legislative purposes.’”48

Defendants argue that Section 18-10b lacks a punitive purpose 

because it was designed to prescribe the treatment of defendants 

45 ACORN, 618 F.3d at 136 (quoting Nixon, 433 U.S. at 473). 

46 See id. 

47 Conn. Gen. Stat. § 18-10b. 

48 ACORN, 618 F.3d at 138 (quoting Nixon, 433 U.S. at 475). See also Kaspersky 

Lab, Inc. v. United States Department of Homeland Security, 909 F.3d 446, 455 (D.C. Cir. 

2018) (remarking that the functional test “invariably appears to be the most 

important of the three [tests]” and that it “provides an inferential tool; it does not 
22

following elimination of a sentence of death. We are not persuaded by 

this argument, inasmuch as Section 18-10b did not eliminate Reynolds’ 

death sentence, but rather, addressed the concern that Reynolds’ 

capital sentence could be reduced or commuted at a future point. In 

setting forth the conditions of confinement that Reynolds would then 

face, the statute’s primary purpose, in the view of Reynolds, was to 

newly punish him.49

impose an independent requirement” (internal citation and quotation marks 

omitted)). 

49 In their reply brief, Defendants argue for the first time—without any 

citation to the record—that Section 18-10b has legitimate non-punitive purposes, 

including “frequent cell searches and moving the inmate to a new cell every ninety 

days, [which] are reasonably related to legitimate penological objectives of 

reducing contraband and preventing escapes.” Appellant’s Reply Br. at 25. 

This assertion is belied by the absence of any consideration of these 

objectives in the legislative history, which predominantly involved discussion of 

punishing Reynolds and the ten other death row inmates. See Notes 42-43, ante and 

accompanying text; see also Conn. J. Standing Comm. Hearing, Jud, Pt. 8, 2012 Sess., 

p. 93 (statement of Sen. Looney) (“I think that someone serving a sentence without 

the possibility of release should be subject to the harshest possible constitutional 

conditions that could be imposed on someone.”); 55 S. Proc., Pt. 3, 2012 Sess., p. 154 

(statement of Sen. Slossberg) (“The death penalty doesn't bring back the victims of 

their crimes. And we certainly can punish criminals and protect the public safety 

without it. But . . . don't get me wrong, these people have committed horrible crimes 

and they deserve to be punished. And with the amendment that was offered at the 

beginning of this debate [Section 18-10b], we will have a very severe punishment, 

a punishment so horrible at least one person chose to die instead.”); 55 S. Proc., Pt. 

3, 2012 Sess., p. 296 (statement of Sen. Prague) (“I did go to Northern and saw death 

row and saw how horrible it is there and spending life in prison without the 

possibility of parole on death row in a situation that is just like death row is very, 
23

iii. Motivational Test 

The motivational test inquires “whether the legislative record 

‘evinces a congressional intent to punish.’”50 We have held that “[t]he 

legislative record by itself is insufficient evidence for classifying a 

statute as a bill of attainder unless the record reflects overwhelmingly 

a clear legislative intent to punish.”51 We agree with the District Court 

that the legislative record in this instance overwhelmingly discloses an 

intent on the part of the legislature to punish Reynolds should his 

death sentence be commuted.52

very, very, severe punishment. So — and that was our Amendment [Section 18-

10b].”); 55 S. Proc., Pt. 3, 2012 Sess., p. 306 (statement of Sen. Crisco) (“And while 

some would say doing this bill may be soft on crime, I'd just like to remind those, 

you know, those of you about Northern Prison, death row. To me, that is hell on 

earth. How one retains his sanity in an environment like that is incomprehensible. 

And the amendment that we approve tonight [Section 18-101)] . . . really presents 

to us, I believe, the right way to go.”); 55 H.R. Proc., 2012 Sess., p. 162 (statement of 

Rep. Hovey) (“Madam Speaker, we've heard a lot of very eloquent debate today. 

And part of the conversation around the argument for the abolishment of the death 

penalty is that, one, life and imprison -- life in prison is actually worse or even more 

punitive than being put to death. But, for me, these individuals are the most vile in 

our society and because of their choices and their behaviors, they will have received 

Connecticut's maximum sentencing for prison[.]”). 

50 Selective Serv. Sys., 468 U.S. at 852 (quoting Nixon, 433 U.S. at 478).

51 ACORN, 618 F.3d at 141 (noting that statements by only a “smattering of 

legislators” is insufficient to demonstrate punitive intent by the legislature). 

52 See Note 49, ante and accompanying text. 
24

Under each of these three tests, we believe the statute was 

properly held to have been intended to punish.

3. Lack of a Judicial Trial 

Reynolds argues that Section 18-10b imposes punishment 

without a judicial trial. But for Section 18-10b, Reynolds would still be 

subject to life imprisonment without the possibility of release while 

eligible for transfer from the Special Circumstances Unit into the 

general prison population.53

Defendants argue that Reynolds received a trial because he

“was sentenced to death after a full trial, and that conviction was 

upheld after habeas challenges.”54 Reynolds, however, did not receive 

a trial for the additional punitive measures that the legislature 

imposed on April 25, 2012, when it eliminated the possibility that 

Reynolds could ever be released from the Special Circumstances Unit 

in the event his death sentence was reduced to life imprisonment. 

At the time of Reynolds’ conviction, a permanent and 

unreviewable assignment to the Special Circumstances Unit was not a 

punishment provided for by the laws of Connecticut. His sentence was 

53 We assume without deciding that assignment to “general population” is 

preferable to indefinite confinement to the single-cell arrangement of a “supermax” 

facility such as NCI. But see Notes 58 and 67, post. 

54 Appellants’ Br. at 47. 
25

governed by Connecticut General Statute § 53a-46b, as amended by 

Public Act 85-366, which provides in relevant part: 

If the jury or, if there is no jury, the court finds that none of the 

[aggravating] factors ... exists or that one or more mitigating 

factors exist, the court shall impose a sentence [in accordance 

with subsection 1 of Connecticut General Statute § 53a-35a] of 

life imprisonment without the possibility of release. 55

Section 53a-35a imposed “a term of life imprisonment without 

the possibility of release unless a sentence of death is imposed.”56

Section 18-10b thus compels a form of severe confinement that was not 

available to anyone at the time of Reynolds’ offense and trial—namely,

confinement in indefinite and unreviewable isolation without the 

possibility that Reynolds could ever be housed in the general prison 

population.57 Because the punishment imposed on Reynolds was not 

available at the time his guilt was initially determined and after it 

55 Connecticut Gen. Stat. § 53a-46b 

56 Id. § 53a-46b

57 But see Note 53, ante, and Note 67, post. 
26

became available it was imposed without a trial, we cannot say that he 

was afforded a judicial trial in connection with his punishment.58

* * * 

When applied to Reynolds, Section 18-10b thus meets all of the 

requisite criteria for an unlawful bill of attainder. 

C. Equal Protection 

The District Court granted summary judgment to Reynolds on 

his claim that his conditions of confinement, when compared to those 

of similarly-situated inmates, violate his rights under the Equal 

Protection Clause of the Fourteenth Amendment. To prevail on an 

equal protection claim, “a plaintiff must demonstrate that he was 

treated differently than others similarly situated as a result of 

intentional or purposeful discrimination.”59 The disparity in treatment 

must survive the appropriate level of judicial scrutiny which, in the 

58 Our conclusion on this point is informed by our view that the relevant 

question is not whether the punishment imposed by Section 18-10b was imposed 

subsequent to some judicial trial, but rather, whether the punishment was imposed 

after a judicial trial at which the punished individual had an opportunity to 

challenge the punishment. While this unique legislative approach has not been 

considered by other courts, it embodies the type of harm that the Bill of Attainder 

Clause seeks to avoid. 

59 Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). 
27

context of a prison, is that the difference in treatment was not 

reasonably related to any “legitimate penological interests.”60

Reynolds does not allege that Defendants treated him 

differently because he belonged to a protected class, but rather, rests 

on a “class of one” theory, which requires Reynolds to show that he 

has been “intentionally treated differently from others similarlysituated and that there is no rational basis for the difference in 

treatment.”61 Specifically, Reynolds contends that his assignment of an 

unreviewable Risk Level 5 was arbitrary, inasmuch as two similarlysituated prisoners, Santiago and Johnson, were assigned classification 

of Risk Level 4, which permits them to live in the general population.62

We agree with the District Court that Santiago and Johnson are 

similarly situated to each other, and that, in turn, Reynolds’ individual 

circumstances have the requisite high degree of similarity to the two 

of them.63 Notably, all three prisoners: (1) were convicted of murder 

and initially sentenced to death; and (2) after their sentences of death 

were reversed, were resentenced to life in prison without the 

60 Id. 

61 Village of WIllowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Clubside, Inc. 

v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (requiring an “extremely high degree of 

similarity” between the plaintiff and those similarly situated). 

62 See App’x 610 (Affidavit of Eduardo Santiago); App’x 617 (Affidavit of 

Terry D. Johnson). 

63 See Reynolds, 402 F. Supp. 3d at 30-33 (discussing the factual backgrounds 

of Santiago and Johnson). 
28

possibility of release.64 In addition, both Santiago and Johnson have 

records of fighting guards and other inmates, while Reynolds has no 

violent disciplinary history. We see no rational basis for the 

Department of Correction's classification of Reynolds at Risk Level 5 

while Santiago and Johnson are classified at Level 4.65

We are not persuaded by Defendants’ sole proffered 

explanation for this discrepancy—namely, that unlike Reynolds, 

64 See State of Conn. v. Santiago, 318 Conn. 1 (2015). We acknowledge that the 

cases of Johnson and Santiago are not identical in all respects to that of Reynolds.

See State v. Johnson, 253 Conn. 1, 56, 81-82 (2000) (reversing judgment imposing 

death penalty and remanding with instructions to impose a sentence of life 

imprisonment without the possibility of release because “the evidence adduced at 

trial did not support the jury’s finding of an aggravating factor”); State v. Santiago, 

318 Conn. 1, 10, 85 (2015) (explaining that while Santiago’s conviction was affirmed,

his sentence of death was initially reversed and remanded for a new penalty phase 

hearing on the ground that he had been deprived of the opportunity to review and 

use certain potentially mitigating evidence; but, after the passage of Section 18-10b, 

on reconsideration, Santiago’s sentence of death was reversed and remanded with 

direction to sentence the defendant to life imprisonment without the possibility of 

release). But we have not held that comparators must be identical; rather, that “a 

plaintiff must show an extremely high degree of similarity between itself and its 

comparators.” NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 198 (2d Cir. 2019)

(internal quotation marks omitted); see also Fortress Bible Church v. Feiner, 694 F.3d 

208, 221 (2d Cir. 2012) (rejecting defendant’s argument that plaintiff’s equal 

protection claim failed “because the [plaintiff] has not provided a single 

comparator situated similarly to it in all respects”).

65 See App’x 1043 (Declaration of Carol Guerrero attaching Santiago’s 

disciplinary records); App’x 1110 (Declaration of Ruth O’Herron attaching 

Johnson’s disciplinary records); App’x 569, Reynolds’s Local Rule 56(a)(1) 

Statement of Material Facts (stating that Reynolds did not incur any disciplinary 

infractions between 1998 and 2010, and Reynolds has never been cited for a 

disciplinary infraction as a result of violent or aggressive behavior). 
29

Santiago and Johnson were not “convicted of aggravated capital 

murder of a police officer, in a manner that was especially cruel and 

heinous.”66 Santiago was convicted of murdering a sleeping victim in 

the victim’s home after being hired by a third party to carry out the 

killing, and Johnson was convicted of the murder of a Connecticut 

State Trooper during the commission of a burglary.67 We assume for 

the argument that the comparative heinousness of each prisoner’s 

offenses may, in some circumstances, factor into a particular equal 

protection analysis, but we see no differences between the underlying 

crimes of conviction in the instant case sufficient to justify discrepant 

treatment. 

We conclude that Reynolds is similarly situated to Santiago and 

Johnson, and because Defendants do not offer a persuasive 

explanation as to why Reynolds is treated differently (particularly 

given his lack of violent infractions compared to Santiago and 

Johnson), we conclude that Defendants’ classification of Reynolds as 

Risk Level 5 violated his equal protection rights. 

D. Defendants’ Remaining Challenges on Appeal 

In vacating the judgment and the preliminary injunction of the 

District Court on these grounds—namely, that the District Court 

decided disputed issues of material facts in granting summary 

66 Appellant’s Br. at 37. 

67 See Santiago, 318 Conn. at 86; State of Conn. v. Johnson, 253 Conn. 1, 4-5 

(2000). 
30

judgment to Reynolds—we express no view on the remaining 

arguments raised by Defendants on appeal, specifically, their 

challenges to the District Court’s conclusions regarding whether 

Reynolds’ conditions of confinement violate the Eighth Amendment, 

or the Due Process Clause of the Fourteenth Amendment; whether the 

District Court’s permanent injunction violated the Prison Litigation 

Reform Act; and whether, in the circumstances presented here,

Defendants are entitled to qualified immunity. 

III. CONCLUSION

In closing, we note with interest Defendants’ suggestion that 

Reynolds does not wish to be moved into general population, given 

his preference for a single cell.68 Our holding does not suggest, much 

less require, that after further review of Reynolds’ situation, Reynolds’

own preferences should be disregarded. 

To summarize, we hold as follows:

(1) The District Court erred by deciding disputed issues of 

material fact in granting summary judgment in favor of 

68 See App’x 2230, August 30, 2019 Declaration of NCI Warden Giuliana 

Mudano (stating that she has spoken with Reynolds following the entry of the 

injunction, and that Reynolds told her he would prefer to keep his single cell). But 

see App’x 1799, Reynolds's Local Rule 56(a)(2) Statement of Material Facts (stating, 

inter alia, that he had "made his complaints about conditions clear through written 

Inmate Request forms," and that he had "never discussed his single cell status with 

Defendant Quiros and he made it clear in numerous grievances that he was not 

'satisfied' with his conditions on death row"). See also Notes 53 and 57, ante.
31

Reynolds on his claims under the Eighth Amendment, and 

the Due Process Clause of the Fourteenth Amendment; 

(2) The District Court correctly concluded that, with respect to 

Reynolds, Conn. Gen. Stat. § 18-10b is an unconstitutional bill 

of attainder; and

(3) Reynolds’ unreviewable classification score of Risk Level 5 

violates his rights under the Equal Protection Clause of the 

Fourteenth Amendment because the difference in his 

treatment compared to that of other similarly-situated 

inmates lacks a rational basis. 

For the foregoing reasons, we AFFIRM IN PART the August 27, 

2019 judgment of the District Court, insofar as it held that Conn. Gen. 

Stat. § 18-10b is an unconstitutional bill of attainder and that 

Defendants violated Reynolds’ equal protection rights by arbitrarily 

assigning him an unreviewable Risk Level 5; we VACATE the August 

27, 2019 judgment in all other respects; AFFIRM IN PART the August 

27, 2019 permanent injunction with respect to its provisions: (1) 

enjoining DOC from enforcing Section 18-10b in Reynolds’ case; (2) 

directing DOC to house Reynolds in conditions similar to those of 

Johnson and Santiago; and (3) requiring DOC to provide Reynolds 

with a meaningful individualized classification determination; 

VACATE the August 27, 2019 permanent injunction in all other 

respects; and REMAND the cause to the District Court for further 

proceedings consistent with this opinion. 
19-2858

Reynolds v. Quiros,

1 KEARSE, Circuit Judge, concurring:

2 Previouslywehave acknowledgedthat generally, aprisoner's contention

3 thathis conditions of confinementviolate theEighth Amendment requires an analysis

4 involving both objective and subjective factors. See Phelps v. Kapnolas, 308 F.3d 180,

5 185 (2d Cir. 2002); see, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). While I concur

6 fully in Judge Cabranes's opinion, I write separately to offer a brief thought--which

7 has no immediate bearing on our disposition in this case--on the applicability of the

8 subjective factor.

9 "[T]he treatment a prisoner receives in prison and the conditions under

10 which he is confined are subject to scrutiny under the Eighth Amendment." Helling

11 v. McKinney, 509 U.S. 25, 31 (1993). Generally a prisoner's challenge to his conditions

12 of confinement on the basis that the conditions constitute cruel and unusual

13 punishment in violation of the Eighth Amendment requires a two-step analysis. See,

14 e.g., Farmer, 511 U.S. at 834. First, a prisoner must show that, because of his conditions

15 of confinement, he is deprived of a "basic human need[]," including "food, clothing,

16 shelter, medical care, and reasonable safety." Helling, 509 U.S. at 32 (internal

17 quotation marks omitted). Risk of future harm from unsafe conditions can meet this
1 "objective prong" of an Eighth Amendment violation. Id. at 33-35. Second, he must

2 show that prison officials were deliberately indifferent to a risk to his health and

3 safety, which the Court has defined as knowing and disregarding an excessive risk

4 to inmate health or safety. See Farmer, 511 U.S. at 834-37.

5 The Court has explained that the source of the deliberate indifference

6 standard is "the Eighth Amendment itself, which bans only cruel and unusual

7 punishment." Wilson v. Seiter, 501 U.S. 294, 300 (1991) (emphasis in original). "If the

8 pain inflicted is not formally meted out as punishment by the statute or the sentencing

9 judge, some mental element must be attributed to the inflicting officer before it can

10 qualify." Id. (emphasis in original). Despite the implicit limitation that the inquiry

11 into a prison official's state of mind applies only to claims challenging conditions of

12 confinement that do not implicate statutorily required conditions, courts have

13 generalizedthe application ofthedeliberate indifference requirementto all conditions

14 of confinement. See, e.g., Helling, 509 U.S. at 32 ("Wilson v. Seiter . . . held that a claim

15 that the conditions of a prisoner's confinement violate the Eighth Amendment

16 requires an inquiry into the prison officials' state of mind."). To be sure, it is likely

17 that most conditions-of-confinement claims will arise in the context of prison officials

18 performing (or not performing) discretionary management duties; but where the

-2-
1 challenged conditions are explicitly prescribed by statute, I do not see the rationale

2 for an inquiry into an official's mental state, nor do I read the caselaw to require one. 

3 The conditions challenged by Reynolds are unique in that they are

4 imposed by Conn. Gen. Stat. § 18-10b and are thus "formally meted out as

5 punishment by the statute." Wilson v. Seiter, 501 U.S. at 300 (emphasis omitted). Such

6 conditions being required by statute, I do notthink any Eighth Amendment challenge

7 necessitates a showing of deliberate indifference. See id. at 306 (White, J., concurring

8 ("It is well established, and the majority does not dispute, that pain or other suffering

9 that is part of the punishment imposed on convicted criminals is subject to Eighth

10 Amendment scrutiny without regard to an intent requirement.")).

-3-