# United States Court of Appeals **for the Fifth Circuit**

____________
No. 22-10382

____________ Lonnie Kade Welsh,
Plaintiff—Appellant ,

versus
Lubbock County; Kelly Rowe, Sheriff ; C. Scott, Chief Jail Administrator ; FNU Payne, Sergeant ; K. Young, Sergeant ; FNU McDaniel, Sergeant ; FNU LNU-269, Lubbock County Jail OfficeRadio Number 8281 ; Ron Jenkins, Captain , Defendants—Appellees ,

consolidated with

_____________
No. 22-11049

_____________ Lonnie Kade Welsh,
Plaintiff—Appellant ,

versus
Lubbock County; Kelly Rowe, Sheriff ; C. Scott, Chief Jail Administrator ; K. Young, Sergeant , Defendants—Appellees

. United States Court of Appeals Fifth Circuit 

### FILED June 15, 2023 Lyle W. Cayce Clerk Case: 22-10382 Document: 00516789005 Page: 1 Date Filed: 06/15/20232 ______________________________ Appeals from the United States District Court for the Northern District of Texas USDC No. 5:19-CV-255

______________________________
Before Elrod, Ho, and Wilson, Circuit Judges

. Per Curiam: Plaintiff Lonnie Welsh, a convicted se xually violent predator, was held in the Lubbock County Detention Center as a pre-trial detainee for a period of approximately one month from Decemb er 2017 to January 2018. Soon after his arrival, he was placed in ad ministrative segregation away from the facility’s general population, where he was held for most of the remainder of his time there. He subsequently brough t suit under 42 U.S.C. § 1983 against Lubbock County and a number of law en forcement officials, asserting a series of claims regarding his alle ged mistreatment there.

The district court entered an order dismissing the claims against the county and all but one of the officials, wh ich he now appeals in the first of the consolidated cases. Plaintiff challeng es the process by which he was placed and remained in administrative segregatio n, a claim the district court rejected because “absent extraordinary circumstan ces, administrative segregation as such, being an incident to the ordina ry life of a prisoner , will never be a ground for a constitutional claim” beca use it “simply does not constitute a deprivation of a constitutionally cognizable liberty interest.” Pichardo v. Kinker , 73 F.3d 612, 612–13 (5th Cir. 1996). See also Cardenas v. Young , 655 F. App’x 183, 186 (5th Cir. 2016) (a pplying this conclusion to pre-trial detention); Bonner v. Alford , 594 F. App’x 266, 267 (5th Cir. 2015) (same); Rhine v. City of Mansfield , 499 F. App’x 334, 335 (5 th Cir. 2012) (same); Amaya v. Richardson , 289 F. App’x 792, 793 (5th Cir. 2008) (same); Gibbs v. Grimmette , 254 F.3d 545, 548 n.1 (5th Cir. 2001) (same). He also challenges a slew of aspects of his treatment in custody—such as his clothing, food, Case: 22-10382 Document: 00516789005 Page: 2 Date Filed: 06/15/2023No. 22-10382 c/w No. 22-11049

3 sanitation, recreation, and entertainment— that the district court rejected for failure to amount to a co nstitutional violation. See Bell v. Wolfish , 441 U.S. 520, 539 & n.21 (1979) (allowing “conditi on[s] or restriction[s] of pretrial detention” that are “reasonably re lated to a legitimate governmental objective” or are “‘de minimis’” in na ture). Additionally, Plaintiff raises policy claims against Lubbock County for deliberate indifference and failure to train and supervise, which the district court found lacked an underlying constitutional violation necessary to proceed. See Hicks-Fields v. Harris Cnty. , 860 F.3d 803, 808 (5th Cir. 2017 ) (explaining that municipal liability requires an underlying cons titutional violation). After the district court subsequently dismissed the remaining named official, Plaintiff moved to reconsider that dismissal and the dismissal of several of his other claims. The district court reject ed both motions for lack of new evidence, which Plaintiff no w appeals in the second of the consolidated cases. The Court has carefully co nsidered these appeals in light of the briefs and pertinent portions of the record. Ha ving found no reversible error, we affirm. Case: 22-10382 Document: 00516789005 Page: 3 Date Filed: 06/15/2023No. 22-10382 c/w No. 22-11049

4 Jennifer Walker Elrod , Circuit Judge , concurring: While I agree that the district court did not reversibly err here, I write separately to address the appropriate standard for review of claims brought by pre-trial detainees.

Welsh was retained in administrati ve segregation from December 5, 2017, to January 8, 2018, while he awaited his criminal trial. 1 Prison records establish that paper reviews of Wels h’s placement in administrative segregation were conducted on December 17, 2017, and January 2, 2018, but Welsh asserts that he was improperly de nied: notice of the reviews; a hearing; the opportunity to challenge the use of his status as a sexually violent predator as grounds for placing and k eeping him administratively segregated; and written factual determinations for continuing to keep him in administrative segregation. This rend ered him “unable to appeal the result under the procedures described in Te xas Administrative Code 271.4.” In district court, Welsh relied on Hewitt v. Helms , 459 U.S. 460 (1983), in which the Supreme Court held that st ate statutes defining procedures for confining an inmate to administrative segregation can gi ve an inmate a protected liberty interest. Id. at 476. The district court agreed that Welsh was potentially denied procedural safe guards, but it nevertheless dismissed

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1 Welsh was held in the Lamb County Jail awaiting trial from November 28, 2017, to June 20, 2018, except when he was t ransferred to the Lubbock County Jail from December 2017 to January 2018. In a separate case, Welsh v. Lamb County, et al. , No. 22- 10124, 2023 WL 3918995 (5th Cir. June 9, 20 23), Welsh brought claims against officials at the Lamb County Jail. We reversed the distri ct court’s dismissal of Welsh’s substantive due-process claim arising out of his allegation th at he was forced for several days to drink from a toilet, because this was not a de minimis imposition such that his constitutional right to be free from punishment as a pre-trial detainee was not implicated. Id. at *3 (citing Bell v. Wolfish , 441 U.S. 520, 535–40 (1 979)). We remanded with instructions that Welsh’s factual allegations be considered under the law governing pre-trial detainees’ due-process rights. Id. Case: 22-10382 Document: 00516789005 Page: 4 Date Filed: 06/15/2023No. 22-10382 c/w No. 22-11049

5 Welsh’s claim because of this court’ s holding that “absent extraordinary circumstances, administrative segregatio n as such, being an incident to the ordinary life of a prisoner, will never be a ground for a consti tutional claim.” Pichardo v. Kinker , 73 F.3d 612, 612 (5th Cir. 1996). Pichardo relied on the Supreme Court’s holding in Sandin v. Conner , 515 U.S. 472 (1995). However, both Pichardo and Sandin dealt with convicted prisoners, not pretrial detainees like Welsh. Every circuit to consider the issue of the proper standard for review of pre-trial detainee claims has held that Sandin does not apply to pre-trial detainee claims. See Dilworth v. Adams , 841 F.3d 246, 252 (4th Cir. 2016); Jacoby v. Baldwin County , 835 F.3d 1338, 1347–50 (11th Cir. 2016); Hanks v. Prachar , 457 F.3d 774, 776 (8th Cir. 2006); Surprenant v. Rivas , 424 F.3d 5, 17 (1st Cir. 2005); Peoples v. CCA Det. Ctrs. , 422 F.3d 1090, 1106 & n.12 (10th Cir. 2005), vacated in part on other grounds by 449 F.3d 1097 (10th Cir. 2006) ( en banc ); Benjamin v. Fraser , 264 F.3d 175, 188–89 (2d Cir. 2001); Rapier v. Harris , 172 F.3d 999, 1004–05 (7th Cir. 1999); Mitchell v. Dupnik , 75 F.3d 517, 524 (9th Cir. 1996); see also Fuentes v. Wagner , 206 F.3d 335, 342 n.9 (3d Cir. 2000) (holding Sandin inapplicable to detain ee convicted but not yet sentenced), abrogated in part on other grounds by Kingsley v. Hendrickson , 576 U.S. 389 (2015). Although circuits have uniformly he ld that pre-trial detainees’ claims are not governed by Sandin , they have reached different conclusions as to whether detainees may continue to rely on Hewitt to support their due process claims. Compare Thorpe v. Clarke , 37 F.4th 926, 944–46 (4th Cir. 2022) (discussing the baseline proced ural requirements for retaining an inmate in administrative segregation under Hewitt ), Williamson v. Stirling , 912 F.3d 154, 174–77 (4th Cir. 2018) (relying on Hewitt to determine whether a pre-trial detainee is entitled to procedural due process before and after being placed in admini strative segregation), and Williams v. Hobbs , 662 F.3d Case: 22-10382 Document: 00516789005 Page: 5 Date Filed: 06/15/2023No. 22-10382 c/w No. 22-11049

6 994, 1006–09 (8th Cir. 2011) (holding post- Sandin that prisoners who were confined in non-disciplinary administra tive segregation were entitled to meaningful periodic review under Hewitt ), with Rapier v. Harris , 172 F.3d 999, 1004–05 (7th Cir. 1999) (“We are aware that Sandin distinguishes between convicted prisoners and pretri al confinees, but we do not believe that the distinction made by the Cour t, read in context, justifies the continued vitality of the Hewitt approach in dealing with pretrial confinees.”). In several unpublished ca ses, we have applied Sandin and cases based

on Sandin to pre-trial detainees, but we have not explicitly addressed whether Sandin ’s holding applies to pre-trial detainees. See, e.g. , Aucoin v. Terrebonne Par. Sheriff’s Off. , No. 21-30322, 2022 WL 16657429, at *2 (5th Cir. Nov. 3, 2022) (concluding that a pre-trial de tainee’s claims about his disciplinary proceeding and subsequent lockdown sentence were properly dismissed because he did not allege any atypical or significant hardship); Cardenas v. Young , 655 F. App’x 183, 186 (5th Cir. 2016) (only applying Sandin during time when plaintiff was convicted prisoner, not pre-trial detainee); Bonner v. Alford , 594 F. App’x 266, 267 (5 th Cir. 2015) (applying Pichardo to pre-trial detainee); Rhine v. City of Mansfield , 499 F. App’x 334, 335 (5th Cir. 2012) (applying Pichardo to pre-trial detainee); Amaya v. Richardson , 289 F. App’x 792, 793 (5th Cir. 2008) (applying Pichardo to pre-trial detainee).

Sandin does not apply to pre-trial deta inees. For a convicted prisoner, administrative segregation falls un der the “expected perimeters of the sentence imposed by a court of law.” Sandin, 515 U.S. at 485. But a pre-trial detainee is not subject to such an expectation of punishment. Id. at 484 (“[A] detainee ‘may not be punished prior to an adjudication of guilt in accordance with due process of law.’” (quoting Bell v. Wolfish , 441 U.S. 520, 535 (1979))); Welsh v. Lamb County, 2023 WL 3918995, at *3 (remanding Welsh’s claim against Lamb County Jail). Un like a convicted prisoner, a pre-trial Case: 22-10382 Document: 00516789005 Page: 6 Date Filed: 06/15/2023No. 22-10382 c/w No. 22-11049

7 detainee has a liberty interest in freedom from increased restraint, even if that restraint does not exceed the Sandin requirements. Hewitt continues to provide the correct framework for determ ining the procedural protections to which a pre-trial detainee is entitled to ensure that solitary confinement is not imposed as punishment. Case: 22-10382 Document: 00516789005 Page: 7 Date Filed: 06/15/2023