PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1469

_____________

CRAIG WILLIAMS,

 Appellant

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS; DORINA VARNER, Chief Grievance 

Coordinator; TINA FRIDAY, Records Officer, in her 

individual and official capacity; JEFFREY R. ROGERS, 

Manager, in his individual and official capacity; TRACY 

SHAWLEY, Grievance Coordinator, in her individual and 

official capacity; LOUIS FOLINO, in his individual and 

official capacity

_____________

APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE WESTERN DISTRICT 

OF PENNSYLVANIA

(No. 2-12-cv-00944)

District Judge: Honorable Mark R. Hornak
2

_____________

No. 15-1390

_____________

SHAWN T. WALKER,

 Appellant

v.

MICHAEL A. FARNAN; SECRETARY PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS; SUPERINTENDENT 

GRATERFORD SCI; CINDY G. WATSON, and others to be 

named later 

_____________

APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE EASTERN DISTRICT 

OF PENNSYLVANIA

(No. 2-07-cv-04977)

District Judge: Honorable R. Barclay Surrick

_____________

Argued 

April 18, 2016

____________
3

Before: McKEE*, Chief Judge, FUENTES*, and ROTH,

Circuit Judges.

(Opinion Filed: February 9, 2017)

______________

James J. Bilsborrow, Esq. [ARGUED]

Weitz & Luxenberg

700 Broadway

New York, NY 10003

Attorney for Appellants

John G. Knorr, III, Esq. [ARGUED]

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Kemal A. Mericli, Esq.

Office of Attorney General of Pennsylvania 

564 Forbes Avenue

6th Floor, Manor Complex

Pittsburgh, PA 15219

 

*

Judge McKee was Chief Judge at the time this appeal was 

argued. Judge McKee completed his term as Chief Judge on 

September 30, 2016. 

*

Judge Fuentes assumed senior status on July 18, 2016.
4

Randall J. Henzes, Esq.

Claudia M. Tesoro, Esq.

Office of Attorney General of Pennsylvania

3rd Floor

21 South 12th Street

Philadelphia, PA 19107

Attorneys for Appellees

______________

OPINION OF THE COURT

______________

McKEE, Circuit Judge.

I. INTRODUCTION

We are asked to decide whether there is a 

constitutionally protected liberty interest that prohibits the 

State from continuing to house inmates in solitary 

confinement1 on death row after they have been granted 

resentencing hearings, without meaningful review of the 

continuing placement. For the reasons set forth below, we 

conclude that there is and that the Due Process Clause of the 

Fourteenth Amendment therefore limits the State’s ability to 

subject an inmate to the deprivations of death row once the 

death sentence initially relied upon to justify such extreme 

 

1 This level of confinement is also sometimes referred to as 

“administrative segregation.”
5

restrictions is no longer operative.2 However, we also hold 

that, because this principle was not clearly established before 

today, the prison officials (“Defendants”) in this consolidated 

appeal are entitled to qualified immunity.

Accordingly, we will affirm the district courts’ grants 

of summary judgment in favor of Defendants based on 

qualified immunity. In reaching this conclusion, we stress

that this liberty interest, as explained more fully below, is 

now clearly established.

II. FACTS AND PROCEDURAL HISTORY

Craig Williams and Shawn T. Walker (“Plaintiffs”)3

are inmates in the custody of the Pennsylvania Department of 

Corrections (“DOC”). Each was sentenced to death and 

housed on the death row of his respective institution 

following imposition of his death sentence. Eventually, their

death sentences were vacated, but several years elapsed 

before they were resentenced to life without parole.4In the 

 

2 Plaintiffs have both had their death sentences vacated but 

were nevertheless detained in solitary confinement on death 

row. We take no position on whether any inherent risk posed 

by inmates whose death sentences are still active and viable is 

sufficient to raise a presumption that their continued 

confinement on death row is justifiable.

3 This Court consolidated Williams’s and Walkers’ appeals. 

We thank James J. Bilsborrow, Esq., appointed counsel, for 

his pro bono representation of Plaintiffs in this matter.

4

“Vacated” as used throughout this opinion refers to 

situations where a defendant has initially been sentenced to 
6

interim, Plaintiffs were kept on death row until their appeals 

were finally decided. Accordingly, they spent several years 

in the solitary confinement of death row from the date their 

death sentences were vacated, until they were finally 

resentenced to life imprisonment and placed in the general 

population.5 

After their sentences were vacated, each Plaintiff 

brought suit seeking damages6from various DOC officials.

7

 

 

death, but has subsequently been granted a new sentencing 

hearing. 

5 As defined by DOC policy, the “general population” is a 

“status of confinement for an inmate who is not in 

Administrative or Disciplinary Custody or other type of 

special housing.” DC-ADM 802, Administrative Custody 

Procedures, JA at 94 ¶E.

6 Walker sued Defendants in their individual capacities. He 

initially sought injunctive and declaratory relief in addition to 

damages. His transfer from death row mooted all but his 

damages claim. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d 

Cir. 2003) (per curiam) (“An inmate’s transfer from the 

facility complained of generally moots the equitable and

declaratory claims.”).

7 Williams sued Defendants in their individual and official 

capacities. He filed suit against John Wetzel, Secretary 

Pennsylvania DOC; Dorina Varner, Chief Grievance 

Coordinator; Tina Friday, Records Officer; Jeffrey R. Rogers, 

Program Manager; Tracy Shawley, Grievance Coordinator; 

and Louis N. Folino, Superintendent. Walker filed suit 

against Michael A. Farnan, Chief Counsel; Jeffrey A. Beard, 

Secretary Pennsylvania DOC; David DiGuglielmo, 
7

Their suits allege the officials violated their Fourteenth 

Amendment rights to due process by continuing to subject 

them to the deprivations of solitary confinement on death row 

without meaningful review of their placements after their 

death sentences had been vacated.

8

Inasmuch as the claimed 

liberty interest turns on the conditions of Plaintiffs’

confinement, we will first describe those conditions and the 

legal authority relied upon to impose it, and then address 

whether those conditions violate a constitutionally protected 

liberty interest. 

A. Confinement on Death Row

Plaintiffs were placed on death row after receiving 

their death sentences pursuant to 61 Pa. Cons. Stat. § 4303,

which provides:

[T]he secretary [of corrections] 

shall, until infliction of the death 

penalty . . . keep the inmate in 

solitary confinement. During the 

confinement, no person shall be 

allowed to have access to the 

inmate without an order of the 

sentencing court, except the 

following:

(1) The staff of the department.

 

Superintendent; and Cindy G. Watson, Chief Grievance 

Officer.

8 Plaintiffs also initially asserted substantive due process and 

Eighth Amendment claims against the DOC that they do not 

pursue on appeal.
8

(2) The inmate’s counsel of 

record or other attorney requested 

by the inmate.

(3) A spiritual adviser selected by 

the inmate or the members of the 

immediate family of the inmate.9

Plaintiffs assert that this provision no longer applied to them 

once their death sentences were vacated. They further stress 

that they did not receive meaningful review of their 

continuing placement on death row to determine if the 

deprivations of that placement were necessary. 

In total, Walker spent approximately twenty years on 

death row. Roughly eight of those years were spent after he 

had been granted a resentencing hearing.10 Williams spent 

twenty-two years on death row, with six of those years 

following his grant of resentencing.11 

1. Walker

After his death sentence was vacated, Walker 

remained on death row where he was confined in a

windowless seven by twelve feet cell for almost twenty-four 

hours a day. There, like other death row inmates at SCIGraterford, he lost “virtually all communication [with] the 

 

9 61 Pa. Stat. and Cons. Stat. § 4303, formerly codified at § 

3003.

10 Walker v. Farnan, No. CIV. A. 07-4977, 2015 WL 390424, 

at *1-2 (E.D. Pa. Jan. 29, 2015). 

11 Plaintiffs Br. at 4-6.
9

general population and the outside world.”12 Walker was 

permitted four (non-legal) visits per month. During those 

visits he was “locked in a closet-sized room, behind a 

reinforced sheet of glass . . . . [and was] not permitted 

physical contact with any of his visitors . . . .”

13

 Even

Walker’s meals were provided in the isolation of his cell. 

Walker was permitted to leave his cell only five times 

a week for two-hour intervals of exercise in the open air, in a 

restricted area known as the “dog cage.”14 However, to enter 

the “dog cage,” Walker first had to undergo an invasive strip 

search.

15 To avoid the psychological and physical intrusion 

of these “full” body searches, Walker did not leave his cell 

for open air exercise for nearly seven years.16

Walker alleges that his prolonged confinement on 

death row in these constricting conditions has taken a toll on 

his mental and physical well-being. He describes these 

 

12 JA at 193 ¶36.

13 Id. at 195 ¶60.

14 Id. at 193-94 ¶47.

15 The precise nature of the strip searches Walker was 

subjected to is not evident in the record. Correctional facility 

strip searches have been described elsewhere as requiring an 

inmate to “lift and shake his genitalia, . . . bend over, spread 

his buttocks in the direction of the officer so that he may look 

at [the inmate’s] anus, then made to squat and cough, and 

afterwards [the inmate is] hand cuffed behind his back[.]” 

Incumaa v. Stirling, 791 F.3d 517, 522 (4th Cir. 2015), as 

amended (July 7, 2015).

16 JA at 193-94, 283 ¶6.
10

effects as “long term and debilitating.”17 For example, due to 

the constant noise of other inmates on death row, and a “fear 

of being executed accidentally,” Walker developed

insomnia.18 He also claims to suffer from uncontrollable 

body tremors and severe emotional distress.

2. Williams

Williams’s plight on death row at SCI-Greene was 

similar to Walker’s. He remained confined to his cell for

almost twenty-two hours a day after his death sentence was 

vacated. His meals were also provided in the confines of his 

cell. Williams explains that because medical consultations 

were provided at his cell door, inmates in separate cells could 

hear his exchanges with medical providers, which 

compromised his privacy. During the short intervals that 

Williams was not in his cell, but in the prison yard, law 

library, or shower, he was held inside a small locked cage that

continued to restrict his movement and freedom of 

association. Like Walker, he was only permitted non-contact 

visits.

B. Plaintiffs’ Legal Proceedings

Plaintiffs filed numerous prison grievances based on 

continually being subjected to these deprivations. Those 

grievances were unsuccessful. Plaintiffs then filed the suits 

that are before us in these consolidated appeals. The 

procedural background leading to these suits is as follows.

 

17 Id. at 195-96 ¶64.

18 Id. at 194 ¶51.
11

1. Williams

In 1988, Williams was convicted of first degree 

murder in the Philadelphia Court of Common Pleas and was 

later sentenced to death. Williams’s criminal judgment was 

affirmed on direct appeal.19 Williams then pursued relief 

under Pennsylvania’s Post Conviction Relief Act

(“PCRA”).

20 On July 11, 2006, the trial court concluded that 

Williams was entitled to a new penalty hearing. Williams 

appealed the court’s denial of his guilt phase claims, but the 

State did not appeal the court’s invalidation of the death 

sentence that was imposed at the sentencing phase. On May 

1, 2012, Williams was resentenced to life imprisonment 

without the possibility of parole. Soon thereafter, he was 

finally removed from death row at SCI-Greene and placed in 

the general population.21

In July of 2012, Williams filed a pro se and in forma 

pauperis action under 42 U.S.C. § 1983 against various DOC

officials. He alleged that his confinement on death row 

between the time that he was granted resentencing and the 

time his new sentence was imposed violated his substantive 

and procedural due process rights. Defendants moved for 

summary judgment, contending that Williams’s confinement 

while awaiting resentencing did not violate his constitutional 

 

19 Commonwealth v. Williams, 615 A.2d 716 (Pa. 1992). 

20 42 Pa. Cons. Stat. § 9541 et seq.

21 Williams did not challenge the delay between his 

resentencing, which took place in May, and his transfer into 

the general population, which took place in September.
12

rights. Defendants also argued that they were entitled to 

qualified immunity, a defense they had raised earlier in their 

answer to Williams’s complaint. In a Report and 

Recommendation, the assigned Magistrate Judge concluded 

that Williams’s Fourteenth Amendment procedural due 

process claim failed because he did not have a liberty interest 

in being housed in the general prison population.

22 The 

Magistrate Judge also concluded that because Defendants’ 

policy of keeping inmates like Williams on death row even 

after their death sentences were vacated was grounded in 

legitimate penological goals, Williams did not have a 

substantive due process claim.

23 Overruling Williams’s 

objections, the district court adopted the Report and 

Recommendation and granted Defendants’ motion for 

summary judgment.24 Williams appealed.

2. Walker

Walker was also convicted of first degree murder in 

the Philadelphia Court of Common Pleas in 1992, and 

sentenced to death. The verdict and sentence were affirmed 

by the Pennsylvania Supreme Court on direct appeal.25 

Walker thereafter filed for relief under the PCRA. In April 

2004, the Philadelphia Court of Common Pleas upheld his 

conviction but granted a new sentencing hearing. After 

 

22 Williams v. Wetzel, No. CIV. A. 12-944, 2014 WL 252020, 

at *5 (W.D. Pa. Jan. 22, 2014). The district court adopted a 

magistrate judge’s Report and Recommendation. 

23 Id. at *7-9.

24 Id. at *1.

25 Commonwealth v. Walker, 656 A.2d 90 (Pa. 1995). 
13

additional unsuccessful challenges to his conviction, Walker 

was resentenced to life imprisonment without the possibility 

of parole on April 12, 2012,

26 and transferred to the general 

population on May 4, 2012.27

Before his resentencing, in 2008 Walker filed a pro se 

and in forma pauperis § 1983 action alleging that his 

confinement on death row after his death sentence had been

vacated violated his Eighth Amendment right to be free from 

cruel and unusual punishment as well as his Fourteenth 

Amendment right to due process of law.28 Pro bono counsel 

was appointed to represent Walker. The district court granted 

summary judgment in favor of Defendants.

29 The court 

concluded that Defendants were entitled to qualified 

immunity because the rights Walker asserted were not clearly 

established.30 Walker’s appeal from that ruling was 

consolidated with Williams’s appeal.

C. DOC Policy

Defendants argue that the DOC policy that implements

§ 4303 required Plaintiffs’ continued confinement on death 

row until they were resentenced to life imprisonment. In 

relevant part, this policy states:

S. Modification of Sentence

 

26 JA at 218.

27 Id. at 287.

28 Walker initially filed suit pro se and in forma pauperis. 

The district court appointed pro bono counsel to represent 

him.

29 Walker, No. CIV. A. 07-4977, 2015 WL 390424, at *1.

30 Id. at *4.
14

1. In the event that an order is 

received modifying the sentence 

of a Capital Case inmate to life 

imprisonment due to a resentencing proceeding held as the 

result of an appeal or Post 

Conviction Relief Act, . . . the 

facility Records Supervisor must 

determine whether the order is 

valid and whether the District 

Attorney intends to appeal the 

order.

2. If the District Attorney intends 

to appeal, the inmate shall not be 

moved from the Capital Case unit 

until the appeal is resolved.

However, the inmate may be 

moved from the Capital Case 

Unit, if the District Attorney does 

not file an appeal within 30 days.

3. If the District Attorney does not 

intend to appeal and if the inmate 

does not remain subject to an 

execution sentence as the result of 

a prosecution other than the 

sentence modified in the order, 
15

the inmate may be moved from 

the Capital Case Unit.31

According to Defendants, this policy only permits 

removal from death row (referred to in the policy as the 

“Capital Case Unit”) when a death sentence has actually been 

modified. They claim that the grants of resentencing here 

merely put Plaintiffs’ sentences on hold because reimposition of the death penalty was possible. In any event, 

Defendants assert they are protected from Plaintiffs’ suits by 

qualified immunity.

III. JURISDICTION AND STANDARD OF REVIEW

The district courts had jurisdiction under 28 U.S.C. § 

1331. We exercise jurisdiction over these consolidated

appeals pursuant to 28 U.S.C. § 1291. Our review of the 

courts’ grants of summary judgment is plenary.32 Thus, we 

must draw all reasonable inferences in Plaintiffs’ favor.

33

 If 

we find there are no genuine issues of material fact, and 

Defendants are entitled to judgment as a matter of law, we 

must affirm the courts’ orders of summary judgment.34

IV. DISCUSSION

 

31 Pennsylvania Department of Corrections Capital Case 

Procedures Manual 6.5.8.1.S; JA at 91.

32 See Blackhawk v. Pennsylvania, 381 F.3d 202, 206 (3d Cir. 

2004).

33 See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218 

(3d Cir. 2015).

34 See id.
16

Plaintiffs maintain that their confinement on death row 

without regular placement reviews after they had been 

granted new sentencing hearings violated their procedural due 

process rights under the Fourteenth Amendment.

Accordingly, we begin with the threshold question of whether 

Plaintiffs have asserted a liberty interest sufficient to trigger 

due process protections. If we conclude they have a liberty 

interest under the Due Process Clause, we then must decide if 

that right was clearly established when the alleged due 

process violation occurred. If the right was not clearly 

established, our inquiry ends and Defendants are entitled to 

qualified immunity. If it was, we then need to determine if 

there is a genuine issue of material fact regarding the alleged 

violation of that right.

A. Qualified Immunity

Defendants assert that qualified immunity bars 

Plaintiffs’ claims for damages and that they are therefore not 

liable even if Plaintiffs’ protracted confinement on death row 

was unconstitutional. Under the doctrine of qualified 

immunity, “officials performing discretionary functions 

generally are shielded from liability for civil damages insofar 

as their conduct does not violate clearly established statutory 

or constitutional rights.”35 In assessing qualified immunity 

claims, we conduct a two-part inquiry. We first determine 

whether a right has been violated. If it has, we then must 

decide if the right at issue was clearly established when 

 

35 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
17

violated such that it would have been clear to a reasonable 

person that her conduct was unlawful.36 

As the Supreme Court made clear in Pearson v. 

Callahan, courts are no longer required to tackle these steps 

in sequential order.37 The decisions now on appeal represent 

both possible approaches. The district court that decided 

Williams’s case found that his constitutional rights had not 

been violated, albeit not in the context of a qualified 

immunity analysis. The district court in Walker’s case 

discussed only the second prong, concluding that because the 

right Walker alleged was not clearly established, Defendants 

were entitled to summary judgment based on qualified 

immunity.38

Despite relaxing the “rigid order of battle”39 that 

formerly governed the analysis of qualified immunity, in 

Pearson, the Court nonetheless recognized that it is often 

appropriate and beneficial to define the scope of a 

 

36 Saucier v. Katz, 533 U.S. 194, 201-02 (2001), overruled in 

part by Pearson v. Callahan, 555 U.S. 223 (2009).

37 See Pearson, 55 U.S. at 234-36 (relaxing “the rigid order of 

battle”) (overruling Saucier, 533 U.S. 194); see also

Werkheiser v. Pocono Twp., 780 F.3d 172, 176 (3d Cir. 2015) 

(“Because we do not believe the right at issue here was 

clearly established, we begin with the second step.”).

38 Walker, No. CIV. A. 07-4977, 2015 WL 390424, at *4 

(“Even if we were to somehow conclude that there was such a 

right, it certainly was not clearly established during the period 

in question.”).

39 Pearson, 555 U.S. at 234.
18

constitutional right. Doing so “promotes the development of 

constitutional precedent” and is especially valuable “with 

respect to questions that do not frequently arise in cases in 

which a qualified immunity defense is unavailable.”40 The 

analytical approach is thus left to appellate courts to resolve 

in the context of the individual case, and the constitutional 

question, before it.41

“Because we believe this case will clarify and 

elaborate upon our prior jurisprudence in important and 

necessary ways,” we exercise our discretion under Pearson to 

reach the qualified immunity steps in sequence.

42

 

Accordingly, we will first determine whether Plaintiffs’ rights 

were violated and then decide if Defendants should have 

qualified immunity from suit. We adopt this approach for 

several reasons, not the least of which is the salience of the 

underlying questions to the ongoing societal debate about 

solitary confinement. But at a more basic level, lawsuits by 

prisoners, whether about conditions of confinement or other 

aspects of incarceration, are frequently—and, we stress, not 

inappropriately—met with qualified immunity defenses from 

defendants.43 Thus, defining rights when given the 

 

40 Id. at 236. 

41 See id.

42 Doe v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169-70 (4th 

Cir. 2010).

43 See, e.g., Gilmore v. Hodges, 738 F.3d 266, 273 (11th Cir. 

2013) (“A claim of deliberate indifference to a serious 

medical need in violation of the Eighth or Fourteenth 

Amendments necessarily arises only where the plaintiff is 

incarcerated, and a qualified immunity defense is generally 
19

opportunity to do so not only inures to the benefit of potential 

plaintiffs, it also informs prison personnel and others about 

what is appropriate. Those responsible for discharging the 

difficult responsibility of administering our nation’s prisons 

deserve clear statements about what the law allows. 

B. Protected Liberty Interest

1. Sandin, Wilkinson, and Shoats44

 

available to the public official or officials against whom the 

plaintiff brings suit. . . . Thus, we see precious little reason to 

delay the resolution of the constitutional question until a later 

date, since any later case raising this question will almost 

surely be decided in the same context of qualified 

immunity.”). 

44 Both Plaintiffs’ and Defendants’ appellate briefs focus on 

these and similar cases, and specifically the “atypical and 

significant hardship” standard from Sandin and its discussion 

of state-created liberty interests. However, our cases hold 

that prisoners whose sentences have been vacated, and who 

have not yet been resentenced, are treated as pretrial detainees 

for purposes of constitutional inquiry, even if their criminal 

conviction has not been reversed. See Stevenson v. Carroll, 

495 F.3d 62, 67 (3d Cir. 2007). “Unlike sentenced prisoners, 

who . . . must look to state law for the protection of their 

personal liberties, pre-trial detainees have liberty interests 

firmly grounded in federal constitutional law.” Fuentes v. 

Wagner, 206 F.3d 335, 341 (3d Cir. 2000) (quoting Cobb v. 

Aytch, 643 F.2d 946, 957 (3d Cir. 1981) (en banc)). In 

Carroll, as here, the “[institution did] not contest the status of 

the appellants as pretrial detainees . . . .” Carroll at 67. 
20

A liberty interest may arise from the Constitution or 

“from an expectation or interest created by state laws.”45

Here, Plaintiffs contend they had a state-created liberty 

interest under the Fourteenth Amendment. To establish such 

an interest in the conditions of confinement context, courts 

generally require a showing that the alleged liberty interest is 

substantial.46 To rise to the level of a liberty interest, the right 

 

Moreover, we have emphasized that Sandin, which 

concerned the due process rights of a sentenced prisoner, does 

not apply in the pretrial-detainee context. Fuentes, 206 F.3d

at 342 n.9; see also Dilworth v. Adams, 841 F.3d 246, 252 

(4th Cir. 2016) (“Every federal court of appeals to consider 

the question has concluded that Sandin’s ‘atypical and 

significant hardship’ standard does not govern the procedural 

due process claims of pretrial detainees.”); Bistrian v. Levi, 

696 F.3d 352, 372-73 (3d Cir. 2012) (discussing the different 

due process standards). 

We will nevertheless use the Sandin framework here, 

as both parties suggest. The standards applicable to 

sentenced inmates provide a floor for treatment of pretrial 

detainees, who are generally entitled to greater comparative 

freedom from unconstitutional punishments and deprivations 

of process. See Bistrian, 696 F.3d at 375. Moreover, since 

we find, as explained below, that Plaintiffs prevail in part 

even under the more demanding Sandin analysis, we would 

reach the same result even under the standard we set forth in 

the Fuentes and Stevenson line of cases. 

45 Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

46 We are not persuaded by Defendants’ attempt to insert a 

second criterion, namely, that a “state-created” interest must 
21

alleged must confer “freedom from restraint which . . . 

imposes atypical and significant hardship on the inmate in 

relation to the ordinary incidents of prison life.”47

The Supreme Court’s decisions in Sandin v. Conner48

and Wilkinson v. Austin49 guide our inquiry into what 

 

be formalized through law or policy. It is clear under Sandin 

v. Conner that we must consider the extent of the hardship, 

not whether the State has expressly written the right into law 

or policy. 515 U.S. 472, 481-82 (1995) (“[E]ncourag[ing] 

prisoners to comb regulations in search of mandatory 

language . . . creates disincentives for States to codify prison 

management procedures . . . [to] avoid creation of ‘liberty’ 

interests.”); see also Shoats v. Horn, 213 F.3d 140, 143 (3d 

Cir. 2000) (“In [Sandin], the Supreme Court announced a new 

standard for determining whether prison conditions deprive a 

prisoner of a liberty interest that is protected by procedural 

due process guarantees.”); Parker v. Cook, 642 F.2d 865, 867 

(5th Cir. 1981) (“Since states rarely if ever explicitly label 

their creations as ‘liberty interests,’ we must look to the 

substance of the state action to determine whether a liberty 

interest has been created. And whether this substance is 

embodied in a constitution, statute, regulation, rule, or 

practice is of no significance.”). Indeed, a contrary result 

would allow states to impose any level of extreme 

deprivations and escape remediation under the Due Process 

Clause by simply not writing the countervailing liberty 

interest into law or incorporating it into pronounced policy.

47 Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) 

(emphasis added) (quoting Sandin, 515 U.S. at 484).

48 515 U.S. 472 (1995).

49 545 U.S. 209 (2005).
22

constitutes an “atypical and significant” hardship. In 1995, 

the Court held in Sandin that no liberty interest was 

implicated by an inmate’s placement in solitary confinement 

for thirty days as discipline for disruptive behavior.50 The 

holding was based on the Court’s conclusion that disciplinary 

solitary confinement was “within the expected perimeters of 

the sentence imposed” and therefore, was not atypical.51 A 

decade later, in Wilkinson, the Court held that conditions at a 

“Supermax” facility were such a severely constricting

environment that they gave rise to a state-created liberty 

interest.52 The Court explained, “Supermax facilities are 

maximum-security prisons with highly restrictive conditions, 

designed to segregate the most dangerous prisoners from the 

general prison population.”53 The Court concluded that longterm incarceration in the Supermax at issue was “synonymous 

with extreme isolation.”54 Consequently, the Court held that 

the challenged conditions of confinement were atypical 

“under any plausible baseline.”

55

 The inmates therefore had a 

 

50 Sandin, 515 U.S. at 486 (“We hold that Conner’s discipline 

in segregated confinement did not present the type of 

atypical, significant deprivation in which a State might 

conceivably create a liberty interest.”).

51 Id. at 485.

52 Wilkinson, 545 U.S. at 223-24.

53 Id. at 213.

54 Id. at 214.

55 Id. at 223. In coming to this conclusion, the Wilkinson

Court also considered the fact that placement in this 

Supermax facility disqualified an otherwise eligible inmate 

for parole consideration. Id. at 224. Contrary to Defendants’ 

assertions, we need not consider the absence of this factor 
23

liberty interest under the Fourteenth Amendment’s Due 

Process Clause in not being subjected to these conditions

absent procedural protections that ensured the confinement 

was appropriate.

56

As Wilkinson recognized, “[i]n Sandin’s wake the 

Courts of Appeals have not reached consistent conclusions 

for identifying the baseline from which to measure what is 

atypical and significant.”57 Given Wilkinson’s guidance, in 

Shoats v. Horn we established the following two-factor 

inquiry: (1) the duration of the challenged conditions; and (2) 

whether the conditions overall imposed a significant hardship 

in relation to the ordinary incidents of prison life.

58 Applying 

that inquiry in Shoats, we concluded that “virtual isolation for 

almost eight years” in solitary confinement created a 

protected liberty interest.59

 

here. Parole was not Plaintiffs’ to lose. In any event, this 

consideration was not essential to the Court’s finding of a 

protected interest in Wilkinson. See Westefer v. Snyder, 422 

F.3d 570, 590 (7th Cir. 2005) (“Illinois’ contention that the 

liberty interest identified in Wilkinson turned exclusively on 

the absence of parole constitutes, [in] our view, far too 

crabbed a reading of the decision.”).

56 Wilkinson, 545 U.S. at 224.

57 Id. at 223.

58 213 F.3d 140, 144 (3d Cir. 2000); see also Powell v. Weiss, 

757 F.3d 338, 346 (3d Cir. 2014) (noting that Shoats is this 

court’s governing standard).

59 Shoats, 213 F.3d at 144.
24

Shoats involved a suit by an inmate confined in 

administrative custody because of his history of violence.60 

The inmate was serving a life sentence for murder when he 

escaped from custody.61 During the escape, Shoats stabbed 

several guards.62 Given his violent behavior and the 

perceived threat to others, Shoats was placed in 

administrative custody when finally recaptured. Under then 

existing prison policy, “there [was] no maximum period of 

confinement in administrative custody.”63 Rather, release 

back to the general population was dependent on “an 

evaluation of many factors.”64 These included behavior while 

in administrative custody, “continued risk, safety of others, 

and recommendations of prison personnel, including 

treatment staff.”65

In discussing Shoats’ claim that indefinite detention in 

administrative custody violated his right to due process, we 

described what administrative custody involved.

Administrative custody meant that inmates were “not allowed 

to have radios, televisions, telephone calls (except emergency 

or legal), personal property except writing materials, or books 

other than legal materials and a personal religious volume.”66 

“Non-legal visits [were limited to] one per week . . . under 

appropriate security procedures designated by the [prison’s] 

 

60 Id. at 142-43.

61 Id. at 141.

62 Id.

63 Id. at 142.

64 Id.

65 Id.

66 Id. 
25

Program Review Committee (PRC).”67 Finally, inmates in 

administrative custody were not eligible to participate in any 

educational programs “and all meals [had to be] eaten in the 

inmates’ cells.”68 We concluded that these deprivations were 

such a significant departure from the hardships normally 

attendant to incarceration that Shoats had a liberty interest in 

not being made to endure them indefinitely.

69

2. Plaintiffs’ Atypical Hardship

a. Duration of Segregation

Plaintiffs have shown atypical hardship. In Sandin, the 

Court found that thirty days in solitary confinement did not 

give rise to a protected interest.70 In Wilkinson, the Court 

found that essentially indefinite confinement with the extreme 

deprivations imposed there did give rise to a protected 

interest.71 The hardship Plaintiffs experienced here is far 

more analogous to the extreme deprivation in Wilkinson than 

the much shorter and less severe infringement on liberty that 

was present in Sandin. Both Plaintiffs remained in solitary 

confinement on death row for years—many multiples of 

Sandin’s thirty days—after the initial justification for 

subjecting them to such extreme deprivation (their death 

sentences) ceased to exist.72 Plaintiffs’ isolation on death row 

 

67 Id.

68 Id.

69 Id. at 144.

70 Sandin, 515 U.S. at 486-87.

71 Wilkinson, 545 U.S. at 224.

72 Defendants’ argument that Plaintiffs are responsible for the 

length of these periods of confinement because they initiated 

prolonged appeals of their convictions is both meritless and 
26

lasted six and eight years. We see no meaningful distinction 

between those periods of extreme deprivation and the eight 

years of solitary confinement that we concluded in Shoats

was “not only atypical, but [] indeed ‘unique.’”73 Although 

we do not suggest that it would be considered atypical under 

Sandin, we do note that researchers have found that even a 

few days in solitary confinement can cause cognitive 

disturbances.74

Here, as in Wilkinson and Shoats, Plaintiffs’ 

placements on death row were indefinite.75 In Wilkinson, 

“placement at [the Supermax] is for an indefinite period of 

time, limited only by an inmate’s sentence. For an inmate 

serving a life sentence, there is no indication how long he 

 

disappointing. Plaintiffs’ exercise of their rights to appellate 

review is simply irrelevant to our assessment of the 

constitutionality of their conditions of confinement.

73 Shoats, 213 F.3d at 144 (noting also that the DOC “would 

be concerned about the psychological damage to an inmate 

after only 90 days of such confinement and would generally 

recommend transfer to the general population after 90 days as 

a consequence”) (emphasis in original); see also Wilkerson v. 

Goodwin, 774 F.3d 845, 855 (5th Cir. 2014) (“[T]he duration 

in segregated confinement that courts have found does not 

give rise to a liberty interest ranges up to two and one-half 

years.”).

74 Stuart Grassian, Psychiatric Effects of Solitary 

Confinement, 22 Wash. U. J.L. & Pol’y 325, 331 (2006) 

[hereinafter Grassian].

75 See JA at 192 ¶31 (“Walker’s solitary confinement is 

indefinite.”) (emphasis added).
27

may be incarcerated . . . once assigned there.”76 And in 

Shoats, we found the deprivations were indefinite because 

there was no maximum period for the inmate’s placement in 

solitary confinement.77 Likewise, Plaintiffs’ continued 

confinement on death row after their death sentences were 

vacated continued for years with no ascertainable date for 

their release into the general population. Plaintiffs could not 

even hope to be released based on prison PRC review because 

these pro forma assessments did not consider the necessity of 

their severe conditions of confinement. Obviously, had 

Plaintiffs’ respective appellate proceedings stretched far 

beyond six and eight years, so would their respective 

placements on death row. Indeed, Defendants argue this is 

precisely what the DOC policy would have required. In 

Defendants’ view, so long as re-imposition of the death 

penalty was possible, the automatic deprivations of death row 

were mandatory. 

This indefiniteness contrasts sharply with other 

common forms of solitary confinement, such as the punitive 

segregation that is discussed in Sandin.

78

 The duration of the 

deprivations that follow from that seclusion is often 

predetermined and fixed79 unless the inmate’s behavior is 

thought to require an additional period of segregation.80 

 

76 Wilkinson, 545 U.S. at 214-15.

77 Shoats, 213 F.3d at 142, 144.

78 Sandin, 515 U.S. at 475-76, 485-86.

79 See, e.g., id. at 475-76 (noting that prior to the inmate’s 

placement in solitary confinement, he was sentenced to a term 

of thirty days of administrative segregation).

80 See JA at 251, 18:5-13. 
28

Here, Walker and Williams could have been the most 

compliant inmates in a given facility, and exhibited no signs 

they would endanger themselves or others. They would still 

have been relegated to death row indefinitely even though 

they had won new sentencing proceedings and were not under 

active sentences of death. This would follow even if the 

professionals who are part of the prison PRC reviewed their 

placements and concluded that that level of confinement was 

not otherwise warranted. We therefore have no trouble 

holding that the conditions they had to endure while awaiting 

resentencing constitute an “atypical . . . hardship on the 

inmate in relation to the ordinary incidents of prison life.”81

b. Plaintiffs’ Significant Hardship

As in Shoats, it is undisputed that the conditions 

Plaintiffs experienced on death row “differ significantly from 

‘routine’ prison conditions in Pennsylvania state 

institutions.”82 Among the range of hardships we have 

already noted, Plaintiffs were confined to their respective 

cells for twenty-two to twenty-four hours a day and ate all 

meals accompanied only by the emptiness within the walls of 

their cells. In addition, Williams was placed inside a small 

locked cage during much of the limited time he was allowed 

to leave his cell and Walker was subjected to invasive strip 

searches each time he left his cell for exercise. As discussed

below, a body of research has shown that such conditions can 

 

81 Griffin, 112 F.3d at 708 (emphasis added) (quoting Sandin, 

515 U.S. at 484). 

82 Shoats, 213 F.3d at 144.
29

trigger devastating psychological consequences, including a 

loss of a sense of self.83

These are also stark departures from conditions in the 

general prison population, and Defendants readily concede as 

much: “Regarding the comparison of conditions of 

confinement for capital case inmates with those [in the] 

general population, it is admitted that they are more strict than 

those for general population.”84 The record establishes that, 

unlike those confined on death row, inmates in the general 

population have: Access to open air activities without strip 

searches; regular access to windows and natural light; daily 

access to showers; and the right to more frequent visits where 

contact is permitted. General population inmates also have 

access to group religious services, while death row inmates 

are limited to religious tapes. A variety of jobs and 

vocational programs—including clothing factory jobs, 

culinary training, and barbershop training—are limited to 

inmates in the general population. Likewise, group sport 

activities are reserved for the general population. General 

population inmates can make phone calls as frequently as 

their funds allow. On death row, outside of attorney calls, 

only three fifteen minute calls are allowed per week.

The district court that ruled on Walker’s claim 

recognized these discrepancies. The court stated in no 

uncertain terms that “[t]he conditions of confinement [on 

death row] are much more restrictive than in the general 

 

83 See infra notes 144-171.

84 JA at 63 ¶13; see also JA at 176 ¶9.
30

population at Graterford.”85 For instance, “Plaintiff’s contact 

with individuals other than prison staff was extremely limited 

[on death row]. Plaintiff received each of his three meals per 

day in his cell. By contrast, the general population at 

Graterford eats in communal dining rooms.”86 Thus, while 

general population affords inmates regular human contact, 

inmates on death row such as Plaintiffs are deprived of such 

interaction. Even the most basic activities of daily living, 

such as eating, are done in utter solitude. 

Numerous studies on the impact of solitary 

confinement show that these conditions are extremely 

hazardous to well-being. Accordingly, it is precisely this type 

of isolation that led the courts in Shoats and Wilkinson to 

conclude that the deprivations of solitary confinement 

implicate a protected liberty interest. In Shoats, we gave 

great weight to the fact that the inmate was “confined in his 

cell for 23 hours a day, five days a week, and 24 hours a day, 

two days a week . . . . [and] eats meals by himself.”87 

Similarly, in Wilkinson the Supreme Court grounded a liberty 

interest on its finding that “[i]nmates must remain in their 

cells, which measure 7 by 14 feet, for 23 hours per day” and 

“[a]ll meals are taken alone in the inmate’s cell instead of in a 

common eating area.”88 These conditions of extreme social 

isolation cannot be meaningfully distinguished from the 

deprivations suffered by Plaintiffs here. 

 

85 Walker, No. CIV. A. 07-4977, 2015 WL 390424, at *1. 

86 Id.

87 Shoats, 213 F.3d at 144.

88 Wilkinson, 545 U.S. at 214.
31

In fact, in some respects, Plaintiffs’ conditions were 

more severe than those the Supreme Court found atypical and 

significant under “any plausible baseline.”89 Walker’s cell 

was even smaller than the cells in Wilkinson,

90 and the 

inmates in Wilkinson were not subject to invasive strip 

searches when they left their cells. Accordingly, Plaintiffs 

have sufficiently alleged the significant and atypical 

conditions of confinement that give rise to a protected liberty 

interest.

 3. Defendants’ Alternate Standard

Defendants assert that the appropriate standard in this 

case is not the general prison population as in Wilkinson and 

Shoats. Instead, they claim the metric we should use is the

conditions imposed on “inmates serving similar sentences” or 

what Plaintiffs’ convictions have “authorized the State to 

impose.”91 Defendants thus claim the baseline of comparison 

here is death row itself92 because Plaintiffs remain eligible for 

the death penalty.

93

 Therefore, Defendants argue that 

 

89 Id. at 223 (emphasis added).

90 The size of Williams’s death row cell is not apparent in the 

record.

91 Defendants Br. at 26.

92 Defendants also suggest the comparator is conditions in 

general (non-death row) solitary confinement. This standard 

is untenable. It assumes, with no factual basis, that if 

Plaintiffs had been removed from death row earlier, they 

would necessarily have been placed in general solitary 

confinement as opposed to the general prison population.

93 Id. (“It is enough to say that, for these prisoners, 

confinement on death row is not a ‘departure’ from the 

baseline, it is the baseline.”) (emphasis in original). We note 
32

Plaintiffs’ continued confinement on death row can hardly be 

atypical. 

This argument fails for at least two reasons. First, the 

standard Defendants propose is inconsistent with Shoats. 

There, we did not limit our focus to the conditions of solitary 

confinement, even though the DOC might think it appropriate 

to subject inmates evidencing violent tendencies such as 

Shoats’ to that level of deprivation. Rather, we judged 

Shoats’ conditions “in relation to the ordinary incidents of 

prison life” or relative to “‘routine’ prison conditions.”94 The 

terms “ordinary” and “routine” direct us to use a general 

metric (the general population), not one specific to a 

particular inmate. Second, though some courts have used the 

 

that in some jurisdictions, though to our knowledge 

Pennsylvania is not among them, even inmates with active

death sentences are not always confined on death row—some 

are housed in the general population. See Arthur Liman Pub. 

Interest Program & Ass’n of St. Corr. Admin., Time-In-Cell: 

The ASCA-Liman 2014 National Survey of Administrative 

Segregation in Prison (Aug. 2015), 52-53, 

https://www.law.yale.edu/system/files/area/center/liman/docu

ment/asca-liman_administrativesegregationreport.pdf 

[hereinafter Time-in-Cell]; Mark D. Cunningham & Mark P. 

Vigen, Death Row Inmate Characteristics, Adjustment, and 

Confinement: A Critical Review of the Literature, 20 Behav. 

Sci. & L. 191, 205 (2002); George Lombardi et al., 

Mainstreaming Death-Sentenced Inmates: The Missouri 

Experience and its Legal Significance, 61 Fed. Prob. 3, 5 

(1997).

94 Shoats, 213 F.3d at 144 (emphases added).
33

metric Defendants propose, it is unworkable in this context.95 

We cannot resolve Plaintiffs’ claims by reference to “inmates 

serving similar sentences” because, during the period at issue, 

Plaintiffs were not serving any sentence whatsoever. Their 

sentences had been vacated and resentencing had been 

ordered.

Defendants’ other metric—what the State is authorized 

to impose—is based on a similarly mistaken premise. As we 

just explained, it is inconsistent with the analysis in both 

Wilkinson and Shoats. It also assumes that what the State is 

“authorized” to impose is determinative of our constitutional 

inquiry. However, whether Defendants were complying with 

DOC policy is irrelevant to our liberty interest analysis. As 

Plaintiffs point out, in Shoats, the DOC was following its own 

policy in providing Shoats with regular reviews and hearings 

regarding his placement in solitary confinement, and in 

keeping him there.

96 But these policies were only relevant to

our finding that Shoats’ due process rights had not been 

 

95 See, e.g., Rezaq v. Nalley, 677 F.3d 1001, 1014 (10th Cir. 

2012) (“[I]t is appropriate to compare the nature of the 

challenged conditions to the type of nonpunitive confinement 

routinely imposed on inmates serving comparable 

sentences.”); Hatch v. District of Columbia, 184 F.3d 846, 

847 (D.C. Cir. 1999) (holding that “due process is required 

when segregative confinement imposes an ‘atypical and 

significant hardship’ on an inmate in relation to the most 

restrictive conditions that prison officials . . . routinely 

impose on inmates serving similar sentences”).

96 Shoats, 213 F.3d at 142-43, 144-46.
34

violated.97 The DOC’s compliance with its policy did not 

stand in the way of us finding that Shoats had a liberty 

interest in avoiding solitary confinement. We answered the 

liberty interest question based on the conditions themselves, 

as we must if the Constitution is to be our guide.

98

 

Wilkinson likewise instructs that application of the 

DOC policy must be circumscribed by Plaintiffs’ liberty 

interest. In Wilkinson, the Court explained that “it is clear 

that the touchstone of the inquiry into the existence of a 

protected, state-created liberty interest in avoiding restrictive 

conditions of confinement is not the language of regulations

regarding those conditions but the nature of those conditions 

themselves.”99 Therefore, Defendants’ reliance on their own

policy cannot defeat Plaintiffs’ liberty interest. Rather, our 

inquiry must be governed by the conditions on death row.

Wilkinson also counsels against weighing inmate 

dangerousness in determining whether Defendants’ continued 

confinement of Plaintiffs on death row without meaningful 

review violated their liberty interests. Defendants highlight 

the testimony of prison officials to claim that:

 

97 Id.

98 Id. at 144.

99 Wilkinson, 545 U.S. at 223 (emphasis added); see also 

Parker v. Cook, 642 F.2d 865, 867 (5th Cir. 1981) (“[W]e 

must look to the substance of the state action to determine 

whether a liberty interest has been created. And whether this 

substance is embodied in a constitution, statute, regulation, 

rule, or practice is of no significance.”). 
35

prisoners whose death sentences 

have been vacated, but who are 

still liable to have the death 

penalty re-imposed, present the 

same security and safety issues as 

those who are actually under a 

death sentence . . . . Thus, when a 

sentence of death is vacated on 

appeal or otherwise, the prisoner 

remains in a CCU until he or she 

is no longer exposed to the death 

penalty.

100

 

In Wilkinson, the Court explained: “[H]arsh conditions may 

well be necessary and appropriate in light of the danger that 

high-risk inmates pose both to prison officials and to other 

prisoners. . . . That necessity, however, does not diminish our 

conclusion that the conditions give rise to a liberty interest in 

their avoidance.”101 Thus, although dangerousness is 

certainly relevant to Defendants’ decisions about where to 

place inmates, it does not control the outcome of our due 

process analysis. It is the conditions themselves that 

determine whether a liberty interest is implicated and 

 

100 Defendants Br. at 6. The district court came to a similar 

conclusion in its substantive due process analysis. It found 

the policy had a valid purpose because “[t]here is no doubt 

that an inmate in such a situation presents a heightened risk 

and threat to the safety and security of staff and other inmates 

. . . . they have ‘nothing left to lose.’” Wetzel, No. CIV. A. 

12-944, 2014 WL 252020, at *8.

101 Wilkinson, 545 U.S. at 224.
36

procedural protections must be in place to determine if the 

level of dangerousness justifies the deprivations imposed.

4. The Scientific Consensus

The robust body of scientific research on the effects of 

solitary confinement, combined with the Supreme Court’s 

analysis in Wilkinson and ours in Shoats, further informs our 

inquiry into Plaintiffs’ claim that they had a liberty interest in 

avoiding the extreme conditions of solitary confinement on 

death row. This research contextualizes and confirms the 

holdings in Wilkinson and Shoats: It is now clear that the 

deprivations of protracted solitary confinement so exceed the 

typical deprivations of imprisonment as to be the kind of 

“atypical, significant deprivation . . . which [can] create a 

liberty interest.”102

A comprehensive meta-analysis of the existing 

literature on solitary confinement within and beyond the 

criminal justice setting found that “[t]he empirical record 

compels an unmistakable conclusion: this experience is 

psychologically painful, can be traumatic and harmful, and 

puts many of those who have been subjected to it at risk of 

long-term . . . damage.”103 Specifically, based on an 

examination of a representative sample of sensory deprivation 

studies, the researchers found that virtually everyone exposed 

 

102 Sandin, 515 U.S. at 486.

103 Craig Haney & Mona Lynch, Regulating Prisons of the 

Future: A Psychological Analysis of Supermax and Solitary 

Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 500 

(1997) [hereinafter Haney].
37

to such conditions is affected in some way.104 They further 

explained that “[t]here is not a single study of solitary 

confinement wherein non-voluntary confinement that lasted 

for longer than 10 days failed to result in negative 

psychological effects.”105 And as another researcher 

elaborated, “all [individuals subjected to solitary 

confinement] will . . . experience a degree of stupor, 

difficulties with thinking and concentration, obsessional 

thinking, agitation, irritability, and difficulty tolerating 

external stimuli.”106

Anxiety and panic are common side effects.107 

Depression, post-traumatic stress disorder, psychosis, 

hallucinations, paranoia, claustrophobia, and suicidal ideation 

are also frequent results.108 Additional studies included in the 

aforementioned meta-analysis further “underscored the 

importance of social contact for the creation and maintenance 

of ‘self.’”109 In other words, in the absence of interaction 

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

disintegration. 

In light of the severity of solitary confinement 

conditions, these troubling findings are hardly 

counterintuitive. In one of the most comprehensive surveys 

of conditions of solitary confinement to date, researchers 

 

104 Id. at 500-03.

105 Id. at 531. 

106 Grassian at 332. 

107 See Haney at 500-01.

108 See id. at 521, 524, 530-31, 491 n.74.

109 Id. at 503.
38

gathered detailed data from prison directors.110 They found 

that solitary confinement cells typically range from 45 to 128 

square feet111 or, in Justice Kennedy’s words, “no larger than 

a typical parking spot.”112 The researchers also learned that 

in many jurisdictions, inmates spend twenty-three hours a day 

on weekdays, and forty-eight hours straight on weekends, in 

these miniscule spaces.113 Opportunities to stay connected 

with family and friends are also limited, with some 

jurisdictions only permitting video visits and forbidding visits 

by minors.114 

The results of all of these studies are really neither 

surprising, nor novel. Over one hundred years ago, well 

before the full emergence of the empirical research in this 

area, the Supreme Court recognized that solitary confinement 

caused “[a] considerable number of the prisoners [to] f[a]ll, 

after even a short confinement, into a semi-fatuous condition, 

from which it was next to impossible to arouse them, and 

others became violently insane.”115 

Now, with the abundance of medical and 

psychological literature, the “dehumanizing effect”116 of 

 

110 Time-In-Cell.

111 Id. at ii.

112 Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., 

concurring).

113 Time-in-Cell at ii.

114 Id. at 45.

115 In re Medley, 134 U.S. 160, 168 (1890).

116 Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., 

dissenting).
39

solitary confinement is firmly established. As Justice Breyer 

recognized, “it is well documented that such prolonged 

solitary confinement produces numerous deleterious 

harms.”117 A clinical review by an expert who has evaluated 

the psychiatric effects of solitary confinement in over two 

hundred inmates offers a case in point.118 This expert found 

that “disturbances were often observed in individuals who 

had no prior history of any mental illness.”119 That is to say, 

the evidence shows that the psychological trauma associated 

with solitary confinement is caused by the confinement itself. 

The relationship cannot be dismissed as merely a simple 

correlation between pre-existing mental health issues and 

placement in solitary confinement. 

This study also determined that even a short time in 

solitary confinement is associated with drastic cognitive 

changes: “Indeed, even a few days of solitary confinement 

will predictably shift the electroencephalogram (EEG) pattern 

toward an abnormal pattern characteristic of stupor and 

delirium.”120 In the words of the study’s author, solitary 

confinement is “strikingly toxic to mental functioning.”121

As if psychological damage was not enough, the 

impact of the deprivation does not always stop there. 

Physical harm can also result. Studies have documented high 

 

117 Id.

118 Grassian at 333.

119 Id. at 328-29.

120 Id. at 331.

121 Id. at 354.
40

rates of suicide122 and self-mutilation123 amongst inmates who 

have been subjected to solitary confinement. These behaviors 

are believed to be maladaptive mechanisms for dealing with 

the psychological suffering that comes from isolation.124 In 

addition, the lack of opportunity for free movement is 

associated with more general physical deterioration. The 

constellations of symptoms include dangerous weight loss, 

hypertension, and heart abnormalities, as well as the 

aggravation of pre-existing medical problems.125

Personal accounts of individuals subjected to solitary 

confinement are consistent with this body of research and 

 

122 See, e.g., Thomas B. Benjamin & Kenneth Lux, 

Constitutional and Psychological Implications of the Use of 

Solitary Confinement: Experience at the Maine State Prison, 

9 Clearinghouse Rev. 83, 84 (1975); Lindsay M. Hayes & 

Joseph R. Rowan, National Study of Jail Suicides: Seven 

Years Later, 32-33 (1988), http://www.ncianet.org/wpcontent/uploads/2015/05/National-Study-of-Jail-SuicidesSeven-Years-Later-1988.pdf (finding that isolation is one of 

the key correlates of jail suicides).

123 See, e.g., Hans Toch, Mosaic of Despair: Human 

Breakdowns in Prison 52-53 (Revised ed., 1992); Stuart 

Grassian, Psychopathological Effects of Solitary 

Confinement, 140 Am. J. Psychiatry 1450, 1453 (1983).

124 See Frank J. Porporino, Managing Violent Individuals in 

Correctional Settings, 1 J. Interpersonal Violence 213, 219 

(1986).

125 See Haney at 531; Richard Korn, The Effects of 

Confinement in the High Security Unit at Lexington, 15 Soc. 

Just. 8, 16 (1988).
41

describe the devastating effects of extreme isolation and 

sensory deprivation. One individual who spent twenty-nine 

years in solitary confinement explained, “At times I felt an 

anguish that is hard to put into words. To live 24/7 in a box, 

year after year, without the possibility of parole, probation or 

the suspension of sentence is a terrible thing to endure.”126 

The experience drives some individuals to contemplate 

suicide.127 

The conclusion of another inmate paints a similar 

picture. He described solitary confinement as capable of 

“alter[ing] the ontological makeup of a stone.”128 Given the 

research that we have discussed, that statement cannot be 

 

126 Robert King, Experience: I Spent 29 Years in Solitary 

Confinement, GUARDIAN (Aug. 27, 2010), 

https://www.theguardian.com/lifeandstyle/2010/aug/28/29-

years-solitary-confinement-robert-king; see also Five Omar 

Mualimm-ak, Solitary Confinement’s Invisible Scars, 

Guardian (Oct. 30, 2013), 

https://www.theguardian.com/commentisfree/2013/oct/30/soli

tary-confinement-invisible-scars (“Everyone knows that 

prison is supposed to take away your freedom. But solitary 

doesn’t just confine your body; it kills your soul . . . . Even 

now that I am out of prison, I suffer major psychological 

consequences from those years in isolation.”).

127 Reginald Dwayne Betts, Only Once I Thought About 

Suicide, 125 Yale L.J. F. 222, 228 (2016), 

http://www.yalelawjournal.org/forum/only-once-i-thoughtabout-suicide.

128 Jack Henry Abbott, In the Belly of the Beast: Letters from 

Prison 45 (1981).
42

dismissed merely because it is hyperbole. In fact, that inmate 

eventually committed suicide in prison.129 And as we have 

just shown, his is not the only story of solitary confinement 

followed by deterioration and self-harm. These stories 

confirm what the scores of studies130 that have examined this 

phenomenon tell us: Continued solitary confinement, the 

experience Plaintiffs complain of here, poses a grave threat to 

well-being.

This data compels us to recognize the similarities 

between the plight of Plaintiffs, and those of Shoats and the 

inmates in Wilkinson. All were indefinitely subject to 

isolating conditions that researchers agree cause deep and 

long-term psychic harm. Such harm is the essence of the 

atypical and significant hardship inquiry required under 

Sandin and Wilkinson.

 

129 Prison Writer Jack H. Abbott Dies, Wash. Post (Feb. 12, 

2002), 

https://www.washingtonpost.com/archive/local/2002/02/12/pr

ison-writer-jack-h-abbott-dies/b12e2969-a2e7-4530-bc72-

d78af089023f/. 

130 See, e.g., Henrik S. Andersen et al., A Longitudinal Study 

of Prisoners on Remand Repeated Measures of 

Psychopathology in the Initial Phase of Solitary versus 

Nonsolitary Confinement, 26 Int’l J.L. & Psychiatry 165, 173-

75 (2003); Terry A. Kupers, What to Do with the Survivors? 

Coping with the Long-Term Effects of Isolated Confinement, 

35 Crim. Just. & Behav. 1005, 1010 (2008); David Lovell, 

Patterns of Disturbed Behavior in a Supermax Population, 35 

Crim. Just. & Behav. 985, 997 (2008).
43

5. Purportedly Contrary Precedent Cited by Defendants

With one exception, which we shall discuss, the cases 

Defendants rely upon in arguing against Plaintiffs’ liberty 

interest are readily distinguishable. Those cases hold that 

inmates confined under a death sentence do not have a liberty 

interest that precludes confinement on death row without 

regular review.

131

 However, those inmates were all confined 

pursuant to death sentences that had not been vacated. 

Accordingly, confinement on death row was not a significant 

or atypical hardship for them. Rather, it was expressly within 

the “expected perimeters of the sentence imposed.”132 This 

logic does not apply here. Plaintiffs were no longer being 

confined under a death sentence because their death sentences 

had been vacated. Their liberty interests are thus not 

 

131 Prieto v. Clarke, 780 F.3d 245, 252 (4th Cir. 2015) (“[A] 

court cannot conclude that death row inmates have a statecreated interest in consideration for non-solitary confinement 

when the State’s established written policy expressly 

precludes such consideration.”); Smith v. Coughlin, 748 F.2d 

783, 787 (2d Cir. 1984) (“[I]n light of [state law], which 

expressly mandated his confinement [on death row], appellant 

had no basis to claim to be the beneficiary of any statecreated liberty interest.”); Parker v. Cook, 642 F.2d 865, 874 

n.7 (5th Cir. 1981) (“Because death row inmates are never 

placed in the general population or given an expectation of 

being placed in the general population, it appears that no 

liberty interest is affected when they are placed in 

administrative segregation.”).

132 Sandin, 515 U.S. at 485.
44

comparable to those of inmates with active death sentences 

that arguably require continued placement on death row.

Defendants and the district court also relied on Clark 

v. Beard.

133 There, the Commonwealth Court of 

Pennsylvania examined the same policy that is at issue here 

under circumstances that were similar to those before us. 

Clark did involve inmates confined on death row without

active death sentences.

134 However, that court’s analysis does 

not advance our inquiry. That court merely found the inmates 

failed to provide the facts necessary to establish an 

appropriate comparator for their conditions of confinement: 

“Their complaint describes the conditions in the Capital Case 

Unit, but it is devoid of any baseline against which to 

measure those conditions and determine whether they pose an 

‘atypical and significant hardship.’”135 As a result, the court 

concluded it could not determine if the inmates’ conditions 

gave rise to a liberty interest under Sandin. Clark’s holding

thus rested on an evidentiary determination, not a 

constitutional one rooted in the Due Process Clause. Clark

did not decide if the inmates had a liberty interest in being 

housed outside death row.136 Consequently, Clark simply 

does not answer the question posed here.

 

133 918 A.2d 155 (Pa. Comm. Ct. 2007).

134 Id. at 159.

135 Id. at 162-63.

136 Id. As the district court noted here, “Defendants cited 

Clark as a basis for dismissal in their motion to dismiss. We 

were not persuaded, however, observing that the 

Commonwealth Court’s affirmance in Clark was based on the 

plaintiffs’ failure to appropriately plead a cause of action-not 
45

For the reasons we have discussed, we now hold that 

Plaintiffs had a due process liberty interest in avoiding the 

extreme sensory deprivation and isolation endemic in 

confinement on death row after their death sentences had 

been vacated.

137 However, as we explain below, we must 

nevertheless affirm the district courts’ grants of summary 

judgment in favor of Defendants because we conclude that 

they are entitled to qualified immunity.

C. Was the Right Clearly Established?

Having found a violation of Plaintiffs’ constitutional 

rights, we now determine whether the scope of the right was 

clearly established for the purposes of Defendants’ defense of 

qualified immunity. 

As the district court suggested, a qualified immunity 

analysis looks through the rearview mirror, not the 

 

necessarily on the absence of a constitutional right to be 

housed in the general population after their death sentences 

were vacated.” Walker, No. CIV. A. 07-4977, 2015 WL 

390424, at *4.

137 As noted at the outset, only the district court that heard 

Williams’s case reached the due process question. The 

district court that decided Walker’s claim ruled on qualified 

immunity alone. Nevertheless, our conclusion regarding the 

due process right to avoid restrictive conditions of 

confinement applies equally to Walker, who was subjected to 

the same conditions under the same circumstances. 
46

windshield.138 The inquiry focuses on the state of the relevant 

law when the violation allegedly occurred. For a right to 

have been “clearly established,” “existing precedent must 

have placed the statutory or constitutional question beyond 

debate.”

139 However, the facts of the existing precedent need 

not perfectly match the circumstances of the dispute in which 

the question arises. “[O]fficials can still be on notice that 

their conduct violates established law even in novel factual 

circumstances.” 140 Requiring that precedent and subsequent 

disputes rest on identical facts would license state actors to 

violate constitutional rights with impunity simply by varying 

some irrelevant aspect of constitutional violations. 

Here, although the precedent that existed when 

Defendants continued Plaintiffs’ confinement on death row 

should have suggested caution, it was not sufficient to inform 

Defendants that their conduct violated clearly established law. 

In arguing to the contrary, Plaintiffs cite Shoats for the 

proposition that an inmate’s due process right to avoid 

solitary confinement was clearly established.141 We agree 

that the interest in avoiding extreme seclusion in Shoats is 

analogous to Plaintiffs’ liberty interest even though Shoats 

did not involve confinement on death row. As we have 

already explained, the conditions of confinement in Shoats—

indefiniteness and extreme seclusion—closely mirror those 

Plaintiffs suffered. Thus, Shoats is consistent with, and does 

support, Plaintiffs’ claim that they had a protected liberty 

 

138 See Crawford-El v. Britton, 523 U.S. 574, 590 (1998).

139 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

140 Hope v. Pelzer, 536 U.S. 730, 741 (2002). 

141 Shoats, 213 F.3d 140. 
47

interest. However, we are not prepared to conclude that 

Shoats was sufficient to clearly establish Plaintiffs’ due 

process interest in avoiding confinement on death row.

Shoats was not the only relevant law in existence 

during Plaintiffs’ confinement after their sentences had been 

vacated. Section 4303142 and its implementing policy143

setting forth the conditions for release from death row also 

bear on whether Plaintiffs’ due process rights were clearly 

established. Plaintiffs do not contest the legality of the statute 

or policy themselves. Rather, Plaintiffs concede that despite

Shoats, the policy gave Defendants reason to believe their 

actions were lawful: “Admittedly, whether Appellants’ rights 

were ‘clearly established’ at the time of the violation is a 

difficult question. Prison officials were following a prison 

policy that required that Appellants remain on death row until 

they were resentenced.”144

Defendants read the statute and policy as creating a 

rule that requires “prisoners like Williams and Walker, whose 

death sentences have been vacated but who are still exposed 

to the death penalty, [to] remain [on death row] until resentenced to something other than death.”

145

 Though 

Defendants do not parse the policy, their interpretation is not 

without support. The policy’s first criterion for removal from 

death row is “that an order is received modifying the sentence 

 

142 61 Pa. Cons. Stat. § 4303.

143 Pennsylvania Department of Corrections Capital Case 

Procedures Manual 6.5.8.1.S; JA at 91.

144 Plaintiffs Supp. Br. at 4. 

145 Defendants Br. at 13.
48

of a Capital Case inmate to life imprisonment due to a resentencing proceeding held as the result of an appeal or Post 

Conviction Relief Act, or as the result of a commutation.”146 

At the time in question, Plaintiffs’ sentences had not yet been 

modified to life without the possibility of parole. Their 

sentences had been vacated. Nor were their death sentences 

commuted. Because Plaintiffs do not satisfy the first 

condition for release from death row pursuant to the policy, 

we need not reach the second two criteria. We merely note 

that Defendants’ continued confinement of Plaintiffs on death 

row resulted from a reasonable interpretation of the policy. 

In recognizing the validity of Defendants’ 

interpretation of the policy, we do not suggest that the 

profound liberty concerns raised by Plaintiffs’ continued 

confinement on death row can be overcome by a carefully

worded prison policy. State policy cannot undermine a 

constitutional interest. Rather, Defendants’ policy is only 

relevant to our qualified immunity analysis because the case 

law in existence during Plaintiffs’ continued confinement on 

death row did not adequately inform Defendants that the 

policy ran counter to Plaintiffs’ protected liberty interests. 

Indeed, the limited precedent that existed on the topic 

suggested the contrary. 

Clark, as well as the district court that decided 

Williams’s claim, read the policy and underlying statute the 

same way Defendants did.147 They concluded that these 

 

146 Pennsylvania Department of Corrections Capital Case 

Procedures Manual 6.5.8.1.S.1 (emphasis added); JA at 91.

147 Wetzel, No. CIV. A. 12-944, 2014 WL 252020, at *3

(“[P]ursuant to the aforementioned DOC policy, the 
49

mandates required inmates’ continued confinement on death 

row despite the fact that their death sentences had been 

vacated. In Clark, the Commonwealth Court of Pennsylvania 

described the policy as establishing that “[a]n inmate 

successful in having his capital punishment replaced by 

another sentence is eligible to be discharged from custody [on 

death row].”148 Although, as we have just noted, Shoats 

should have raised concerns and counseled caution, Shoats

does not directly dispute Clark or Defendants’ interpretation 

of the policy because Shoats was not on death row. Thus, the 

DOC death row policy was simply not at issue there. We 

therefore cannot say Defendants’ actions here were “plainly 

incompetent” or a “knowing[] violat[ion of] the law.”149

Accordingly, we will affirm the district courts’ grants 

of summary judgment based on qualified immunity in favor 

of all Defendants and against both Plaintiffs. We realize that 

the court that decided Williams’s case incorrectly concluded 

that Williams did not have a protected liberty interest and 

therefore did not reach the question of qualified immunity. 

However, “[w]e may affirm a judgment on any ground 

apparent from the record, even if the district court did not 

 

undersigned agrees with Defendants’ position as to why 

Plaintiff was confined [on death row] during the disputed 

period of time.”); Clark, 918 A.2d at 161 (“The warrant is the 

trigger for moving an inmate to [death row], but it is not the 

key to his continued stay there.”).

148 Clark, 918 A.2d at 164 (emphasis added).

149 Acierno v. Cloutier, 40 F.3d 597, 616 (3d Cir. 1994) (en 

banc) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 
50

reach it.”150 Our qualified immunity analysis applies equally 

to Walker and Williams.151

V. CONCLUSION:

A. The Jurisprudential Shift

Given the scientific consensus, it should come as no 

surprise that courts have recently started recognizing inmates’ 

due process right to avoid solitary confinement as clearly 

established. The Court of Appeals for the Fifth Circuit’s 

decision in Wilkerson v. Goodwin is illustrative.152 There, the 

record showed that the inmate had been confined to his cell 

for approximately twenty-three hours a day for nearly forty 

 

150 Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir. 

2001). 

151 As stated earlier, Williams sued Defendants in their 

individual and official capacities. The district court did not 

have to distinguish between the two types of defendants and 

claims because it decided that there was no underlying 

constitutional violation. Because we affirm on the second 

prong of qualified immunity, we do need to reach the 

distinction, as official-capacity defendants cannot take 

advantage of the qualified immunity defense. See Melo v. 

Hafer, 912 F.2d 628, 636 (3d Cir. 1990). Thus, we will 

affirm in favor of the official-capacity Defendants on the 

alternative but well-worn ground that Williams’s § 1983 

claims for money damages against the official-capacity 

Defendants were barred by Eleventh Amendment immunity. 

Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d 

Cir. 2010).

152 774 F.3d 845 (5th Cir. 2014).
51

years, and his rights to visitation, personal property, and 

exercise had been severely curtailed.153 Recognizing the clear 

threat to liberty such conditions pose, the court denied the 

prison officials’ assertion of qualified immunity: “Viewed 

collectively, there can be no doubt that these conditions are 

sufficiently severe to give rise to a liberty interest under 

Sandin. This is particularly true in light of the district court’s 

finding that [the inmate’s] solitary confinement at Wade is 

effectively indefinite.”

154

Speaking in nearly identical terms, the Court of 

Appeals for the Second Circuit held that “[w]hatever 

confusion Sandin may have left in its wake, defendants do not 

argue, nor could a credible argument be made, that it was not 

clearly established at the time of the alleged violations that . . 

. ten years of solitary confinement[] triggered due process 

protection.”155 The Courts of Appeals for the Fourth156 and 

Sixth Circuits157 have also recognized the constitutional 

 

153 Id. at 848-49.

154 Id. at 856.

155 Hanrahan v. Doling, 331 F.3d 93, 99 (2d Cir. 2003) (per 

curiam).

156 See Incumaa v. Stirling, 791 F.3d 517, 531 (4th Cir. 2015), 

as amended (July 7, 2015) (“Appellant offered evidence 

demonstrating that conditions in [solitary confinement] are 

significantly worse than in the general population and that the 

severity, duration, and indefiniteness of his confinement 

implicate the concerns the Supreme Court identified in 

Wilkinson.”).

157 See Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 

2008) (recognizing that the plaintiff, an inmate subjected to 
52

implications of solitary confinement. In Incumaa v. Stirling, 

the Court of Appeals for the Fourth Circuit found that the 

“near-daily cavity and strip searches; the confinement to a 

small cell for all sleeping and waking hours, aside from ten 

hours of activity outside the cell per month; [and] the inability 

to socialize with other inmates” endemic to solitary 

confinement were sufficiently severe to establish a protected 

liberty interest.158 In Prieto v. Clarke, one member of that

court went even further in a vigorous dissent, critiquing 

limitations on the due process rights of all inmates housed in 

extreme solitary confinement, even those on death row with 

active death sentences.159

A recent decision by the United States District Court 

for the Middle District of Pennsylvania is a prime example of 

the judiciary’s increasing recognition of the scientific 

evidence of the harms of solitary confinement.160 In Johnson 

 

solitary confinement, “has a point. Even after a proper 

conviction and sentence, an inmate still retains a ‘liberty’ 

interest, guarded by due process, with respect to stateimposed prison discipline that rises to the level of an ‘atypical 

and significant hardship on the inmate’” (quoting Sandin, 515 

U.S. at 484)).

158 791 F.3d at 531.

159 Prieto, 780 F.3d at 255-56 (Wynn, J., dissenting) (“In my 

view, the majority opinion reads Wilkinson unnecessarily 

narrowly in signing off on Prieto’s automatic, permanent, and 

unreviewable placement in the highly restrictive conditions of 

Virginia’s death row.”). 

160 We discuss this case merely to highlight its factual 

findings and strong reliance on scientific research, both of 
53

v. Wetzel, the district court held that the damage of indefinite 

solitary confinement was so severe, certain, and irreparable 

that Johnson—an inmate who had been subjected to solitary 

confinement for decades—was entitled to a preliminary 

injunction requiring his transfer to the general population.161 

The district court ordered this “extraordinary remedy”162

because Johnson, though not on death row, was subjected to 

conditions much like those Plaintiffs experienced here. 

Johnson’s “entire existence [was] restricted, for at least 

twenty-three hours per day, to an area smaller than the 

average horse stall.”163 Like Plaintiffs, Johnson was left for 

lost in the solitude of his cell walls “ad infinitum.”164 

Johnson testified about the extensive harms these conditions 

have caused him, including depression, memory loss, and 

profound hopelessness.165 A scientific expert who examined 

Johnson corroborated his symptoms, concluding that Johnson 

 

which are highly relevant to the issue before us. We, of 

course, do not rely on this case as precedent, or take any 

position on the merits of the court’s decision. 

161 No. 1:16-CV-863, 2016 WL 5118149, at *12 (M.D. Pa. 

Sept. 20, 2016). The district court grounded its preliminary 

injunction in the Eighth Amendment’s prohibition against 

cruel and unusual punishment. Id. at *6. The district court’s 

findings on the harms of solitary confinement are pertinent to 

our procedural due process analysis, which must consider the 

significance of the conditions of confinement.

162 Id. at *5.

163 Id. at *1.

164 Id. at *11.

165 Id. at *4.
54

has “deteriorated to the point of social death as a direct result 

of his continued isolation.”166 

The district court found robust support for Johnson’s 

claim in academic literature. It noted that researchers have 

observed that “psychological stressors such as isolation can 

be as clinically distressing as physical torture.”

167

 It also 

emphasized that it is not the only district court to have 

recognized the obviousness of the harms of solitary 

confinement.168 As another district court has explained, “that 

prolonged isolation from social and environmental 

stimulation increases the risk of developing mental illness 

does not strike this Court as rocket science.”169

In our ruling today, we now explicitly add our 

jurisprudential voice to this growing chorus. In doing so, we 

rely, in part, upon the scientific consensus and the recent 

precedent involving non-death row solitary confinement. 

Those decisions advance our inquiry into the unique, yet 

analogous, scenario presented here.170 Inmates in solitary 

confinement on death row without active death sentences face 

the perils of extreme isolation and are at risk of erroneous 

deprivation of their liberty. Accordingly, they have a clearly 

established due process right under the Fourteenth 

 

166 Id. at *8 (emphasis added).

167 Id. at *9.

168 Id.

169 McClary v. Kelly, 4 F. Supp. 2d 195, 208 (W.D.N.Y. Apr. 

30, 1998).

170 As previously noted, pursuant to Pennsylvania law death 

row is solitary confinement. 61 Pa. Cons. Stat. § 4303.
55

Amendment to avoid unnecessary and unexamined solitary 

confinement on death row. The State must therefore afford 

these inmates procedural protections that ensure that 

continuing this level of deprivation is required for penological 

purposes, and is not reflexively imposed without 

individualized justification. 

B. Plaintiffs’ Due Process Right to Avoid 

Death Row Solitary Confinement is Now Clearly 

Established 

Our holding today that Plaintiffs had a protected 

liberty interest provides “fair and clear warning”171 that, 

despite our ruling against Plaintiffs, qualified immunity will 

not bar such claims in the future. As we have explained, 

scientific research and the evolving jurisprudence has made 

the harms of solitary confinement clear: Mental well-being 

and one’s sense of self are at risk.172 We can think of few 

values more worthy of constitutional protection than these 

core facets of human dignity. Accordingly, we accept 

Plaintiffs’ request that “[t]his Court . . . make clear what 

prison officials should have already known: those no longer 

 

171 United States v. Lanier, 520 U.S. 259, 271 (1997).

172 See Stuart Grassian & Nancy Friedman, Effects of Sensory 

Deprivation in Psychiatric Seclusion and Solitary 

Confinement, 8 Int’l J.L. & Psychiatry 49, 53 (1986) (“The 

more recent literature on this subject has also nearly 

uniformly described or speculated that solitary confinement 

has serious psychopathological consequences.”).
56

subject to the death penalty . . . have a due process right to be 

free from indefinite conditions of solitary confinement.”173

C. The Required Procedural Protections

It is important to emphasize that this right to 

procedural due process protections is neither abstract nor 

symbolic, but both meaningful and required. In Shoats, upon 

finding a protected liberty interest in avoiding solitary 

confinement, we described what we considered to be 

adequate procedural protections. There, we granted summary 

judgment to the prison official defendants only because the 

procedures provided were sufficient to protect Shoats from 

being improperly held in solitary confinement.174 We noted 

that under the applicable DOC policy, “an inmate must 

receive written notice of the reason for his placement in 

administrative custody and he is entitled to receive a hearing 

before a PRC within six days of the initial transfer to 

administrative custody.”175 Most importantly for our 

purposes, “[e]very thirty days thereafter, inmates . . . have the 

opportunity to be personally interviewed by the PRC, which 

then determines whether the inmate should continue to be 

maintained in administrative custody.”

176

 That determination 

takes into account “a variety of factors including the safety of 

other inmates and staff [and] the continued public or 

institutional risk.”177 According to the DOC procedures as set 

 

173 Plaintiffs Supp. Br. 4.

174 Shoats, 213 F.3d at 147.

175 Id. at 142.

176 Id.

177 Id.
57

forth in the record before us in this case, the PRC’s decision 

may be based on evidence such as “counselor’s reports [and] 

Psychiatric/Psychological information.”

178

 For Shoats, we 

found that the “record reflect[ed] that the procedures called 

for did in fact occur.”179 

We see no justification consistent with these Plaintiffs’ 

constitutionally protected liberty interests for subjecting them 

to the deprivations of being housed on death row after their 

death sentences were vacated with any less procedural 

protections than we held were adequate in Shoats.

180

 

 

178 JA at 116 ¶7.

179 Shoats, 213 F.3d at 145.

180 We note, simply to stress the importance of individualized 

placement reviews, that comparative studies examining the 

incidence of prison violence have found equivalent rates 

between death-sentenced and non-death-sentenced inmates. 

See, e.g., Mark D. Cunningham & Thomas J. Reidy, Don’t 

Confuse Me with the Facts: Common Errors in Violence Risk 

Assessment at Capital Sentencing, 26 Crim. Just. & Behav. 

20, 23-24, 27 (1999); Jon Sorensen & Robert D. Wrinkle, No 

Hope for Parole: Disciplinary Infractions among DeathSentenced and Life-Without-Parole Inmates, 23 Crim. Just. & 

Behav. 542, 549-50 (1996). 

As one analysis concluded, “An expectation then that 

death row inmates will invariably commit assaults in prison 

because they have ‘nothing to lose’ appears to be unfounded.” 

Mark D. Cunningham & Mark P. Vigen, Death Row Inmate 

Characteristics, Adjustment, and Confinement: A Critical 

Review of the Literature, 20 Behav. Sci. & L. 191, 203 
58

The review that we found adequate in Shoats is not an 

inconvenient ritual intended to shelter officials from liability 

so that they may mechanically continue an inmate’s 

confinement on death row after a sentence of death has been 

vacated without fear of sanction. Rather, such inmates have a 

right to regular and meaningful review of their continued 

placement on death row.181 In conjunction with periodic 

review, to ensure the review is meaningful, this process must 

include a statement of reasons for the continued placement on 

death row.

182

 Inmates must also have a meaningful 

opportunity to respond to the reasons provided.

183

 These

procedures would be of little value absent the attendant right 

 

(2002). This conclusion may well apply here, where the 

vacatur of Plaintiffs’ death sentences made life theirs to lose. 

This is precisely why an individualized assessment of the 

necessity of continued confinement of inmates like Plaintiffs 

on death row by the prison PRC is so necessary. 

181 See Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983) (“Of 

course, administrative segregation may not be used as a 

pretext for indefinite confinement of an inmate. Prison 

officials must engage in some sort of periodic review of the 

confinement of such inmates.” (emphasis added)), overruled 

on other grounds by Sandin, 515 U.S. 472.

182 See Wilkinson, 545 U.S. at 226 (“If the recommendation is 

[solitary] placement, Ohio requires that the decisionmaker 

provide a short statement of reasons. This requirement 

guards against arbitrary decisionmaking while also providing 

the inmate a basis for objection before the next decisionmaker 

or in a subsequent classification review.”); see also JA at 97 

¶4.

183 See JA at 99 ¶6.
59

of a hearing.

184 Without such protections, the Constitution’s 

guarantee of due process would be “a tale . . . full of sound 

and fury, signifying nothing.”185 As Justice Kennedy has 

explained, this would leave individuals vulnerable to 

erroneous and unjustifiable infliction of “[y]ears on end of 

near-total isolation” at “a terrible price.”

186

VI.

For the foregoing reasons, we will affirm the district 

courts’ orders granting summary judgment in favor of

Defendants based on qualified immunity. We also hold that it 

is now clearly established that inmates on death row whose 

death sentences have been vacated have a due process right to 

avoid continued placement in solitary confinement on death 

row, absent the kind of meaningful protections discussed 

herein. 

 

184 See Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974).

185 William Shakespeare, Macbeth, act V, sc. V.

186 Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., 

concurring).