NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 20

- 1 298

____________ QUINTEZ TALLEY ,

Appellant

v. MAJOR CLARK; LAURA BANTA; M. NASH; THOMAS GRENEVICH; J. YODIS; JOSEPH DUPONT; PA DEPARTMENT OF CORRECTIONS; JOHN E. WETZEL

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania ( D.C. No. 2

- 18

- cv - 0 5316 ) District Judge : Honorable Timothy J. Savage

____________ Argued on January 2 0 , 202 1 Before: SMITH , Chief Judge , HARDIMAN , and ROTH , Circuit Judges

. (Filed: April 1 4 , 2021) Jacob I. Chefitz Harry Sandick Kathrina Szymborski [Argued] Patterson Belknap Webb & Tyler 1133 Avenue of the Americas New York, NY 10036 David M. Shapiro Roderick and Solange MacArthur Justice Center Northwestern University Pritzker School of Law 375 East Chicago Avenue2

Chicago, IL 60611 Counsel for Appellant Josh Shapiro Claudia M. Tesoro [Argued] J. Bart DeLone Office of Attorney General of Pennsylvania 1600 Arch Street Suite 300 Philadelphia, PA 19103 Counsel for Appellees Eric S. Mattson Benjamin I. Friedman Sidley Austin One South Dearborn Street Chicago, IL 60603 J. Manuel Valle Sidley Austin 1501 K Street, NW Washington, DC 20005 Counsel for Amici Curiae Professors and Practitioners of Psychiatry, Psychology, and Medicine i n Support of Appellant

___________ OPINION *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

HARDIMAN, Circuit Judge

. Quintez Talley appeals order s of the District Court dismissing his complaint against the Pennsylvania Department of Corrections (DOC) and various prison officials

. We will reverse and remand

. I A Pennsylvania prisoner, Talley has longstanding mental health problems. He tends to harm himself, often with fire, and he has tried to commit suicide by burning his mattress. Before May 2015, the DOC determined he had a “serious mental illness,” which placed him in the highest mental health classification ( D )

. In May 2015, the D OC downgraded Talley to level C, which meant that his mental illness no longer qualified as “serious.” Talley remained on the C roster during the events relevant to this case. Talley’s case involves his treatment while incarcerated at Pennsylvania State Correctional Institutions Graterford and Fayette in 2018. Because the case was dismissed, we accept as true the facts pleaded in Talley’s complaint. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Near the end of his time at Graterford, Talley faced nine unspecified misconduct charges, apparently including sexual harassment, us ing obscene or inappropriate language to a staff member, refusing to obey an order, and destroying prison equipment (according to Talley, the latter was during a suicide attempt). While the charges were pending, Talley was placed on suicide watch in an iso lated psychiatric observation cell without access to pens or pencils. Because he could not write a statement, request the4

presence of witnesses, or appeal, Talley asked to postpone the misconduct hearing until after he left suicide watch. He also claimed h e had not been properly notified of several of the charges against him. Hearing Examiner J. Yodis obtained approval from his supervisor, Joseph Dupont, to deny Talley’s request and proceed with the hearing. Yodis told Talley he could either
attend the hea ring or have Yodis conduct the proceedings without him, find him guilty of all nine charges, and give him the maximum punishment. Faced with this ultimatum, Talley waived his rights to submit statements and witness requests, and the hearing happened on Jan uary 22, 2018. Yodis sanctioned Talley to ten months’ disciplinary custody for seven of the nine charged offenses. Talley asked the members of the “Program Review Committee”

— a group of prison officials who review the status of a prisoner’s administrative segregation or disciplinary custody

— to provide an assistant who could prepare a dictated appeal for him. The Committee members

— M. Nash, Thomas Grenevich, Laura Banta, and Major Clark

— refused, telling Talley that if he wanted to have the right to appeal lik e other prisoners, “maybe he .

. . shouldn’t say he was suicidal.” App. 49. On January 31

— nine days after his initial misconduct hearing

— Talley was transferred to SCI Fayette, where he was initially placed in another psychiatric observation cell. On Febru ary 5, Talley was released from the cell and was taken to the “Special Management Unit” (SMU). The parties dispute the significance of this transfer. Talley claims the SMU , like disciplinary custody, is “a form of solitary confinement.” Reply Br. 3. Appel lees do not5

dispute this, though they say the SMU was a change “for the better.” Response Br. 32. Appellees also emphasize that SMU prisoners can return to the general population if they successfully complete steps in a behavior modification program. Talley alleges that on February 8 , Hearing Officer Yodis held another misconduct hearing

— remotely

— for the remaining two infractions Tal ley was charged with at Graterford. Yodis sanctioned Talley to an additional 90 days of disciplinary custody (bringing Talley’s total sentence to 13 months), took away Talley’s prison job, and

assess ed Talley’s prisoner account for equipment he destroyed

. According to Talley, his inability to write while on suicide watch prevented him from appealing the January 22 punishment . He also alleges that he could not appeal the February 8 sanctions because he did not receive a written copy of the decision until af ter the deadline to appeal had expired

. II Talley sued the officials discussed above, along with the DOC and its Secretary, John Wetzel. Talley ’s pro se complaint alleged , among other things : (1) that the DOC failed to reasonably accommodate him under the ADA and the Rehabilitation Act; (2) Yodis and Secretary Wetzel violated his Eighth Amendment rights; (3) Yodis and Dupont violated his due process rights concerning a protected property interest ; and (4) Yodis , Dupont, and the Program Review Committee members violated his due process rights concerning a protected liberty interest. Talley brought the constitutional claims under 42
U.S.C. § 1983.6

The Eighth Amendment claims are: (1) Yodis failed to consider Talle y’s mental illness during the misconduct hearings, which resulted in a cruel and unusual sentence of solitary confinement; and (2) Secretary Wetzel was willfully blind to the “ongoing practice” of prisoners such as Talley being put in isolation for conduct caused by mental illness. Talley’s counsel characterizes the claim as “not that any time in solitary confinement violates the Eighth Amendment but that a 13

- month stint in solitary confinement for a person with [Talley’s] particular mental health profile violates the Eighth Amendment.” Talley Br. 56. In two separate orders, the District Court dismissed the constitutional claims on the merits and the ADA and Rehabilitation Act claims for failure to exhaust administrative remedies. S ee 42 U.S.C. § 1997e(a) (requiring administrative exhaustion). This timely appeal followed.
III The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s orde rs . Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000). T he parties agree the District Court lacked a factual basis to conclude that Talley could have appealed the disciplinary rulings after the relevant deadlines because he had a “serious mental illnes s,” and that the District Court overlooked his due process claim s based on the property interest in his prison account funds. But Appellees argue remand should be limited to those issues, while Talley urges us to reverse and remand the whole case for furth er factual development. This disagreement requires us to decide whether : (a) Talley’s transfer to Fayette mooted7

his request for injunctive relief regarding his treatment at Graterford; (b) further factual development is needed as to the exhaustion of admi nistrative remedies ; (c) Talley alleged that Yodis and Dupont actually took his property without due process ; ( d ) Talley has a protected liberty interest supporting his other due process claims ; and ( e ) he has a viable Eighth Amendment claim. 1 We consider each question in turn.
A Appellees claim Talley’s transfer from Graterford to Fayette moots his request for injunctive relief. Although a “transfer from the facility complained of generally moots the equitable and declaratory claims,” “dismiss al of an action on mootness grounds requires the defendant to demonstrate that there is no reasonable expectation that the wrong will be repeated.” Sutton v. Rasheed , 323 F.3d 236, 248 (3d Cir. 2003) (per curiam) (internal quotation marks and citation omit ted). A mootness determination is “an intensely factual inquiry.” Ortho Pharma. Corp. v. Amgen, Inc. , 882 F.2d 806, 811 (3d Cir. 1989) (citation omitted). Talley alleges that, after the transfer to Fayette, he remained in solitary confinement (albeit under a different correctional designation); Yodis and Dupont retained power over him; and Yodis sanctioned him to three more months of disciplinary

1 We quickly address two other issues. First, while Appellees argue they are qualifiedly immun e from Talley’s Eighth Amendment claims, this argument fails because they did not invoke qualified immunity in the District Court. See Bines v. Kulaylat , 215 F.3d 381, 385

– 86 (3d Cir. 200 0) . Second, Talley’s attorneys do not dispute Appellees’ argument that he cannot sue the DOC under § 1983.8

custody. Be cause we must take these allegations as true at this stage , Allah , 229 F.3d at 223, the facility transfer alone does not moot Talley’s request for injunctive relief.
B According to Talley, the District Court erred when it concluded that prison rules would have permitted him to appeal late because he had a “serious mental illness.” See App. 35 (discussing a prison regulation that excuses seriously mentally ill prisoners from meeting disciplinary appellate deadlines) ; Ross v. Blake , 136 S. Ct. 1850 , 1856 (2016) ( explaining prisoners must exhaust administrative remedies only if those remedies are “available”). Talley claims that, although he is mentally ill, “serious mental illness” is a DOC phrase of art that does not apply to him. Appellees agree the Dist rict Court had an inadequate basis to dismiss for failure to exhaust based on the serious mental illness exception. Because “[f]ailure to exhaust is an affirmative defense the defendant must plead and prove,” rather than “a pleading requirement for the pri soner - plaintiff,” we will

reverse the District Court’s exhaustion ruling without prejudice to Appellees ’ right to raise the defense on remand

. See Paladino v. Newsome , 885 F.3d 203, 207 (3d Cir. 2018) (quoting Small v. Camden Cnty. , 728 F.3d 265, 268 (3d C ir. 2013)).
C We now consider Talley’s due process claims. Talley alleged that the assessment against his pri s on account implicated a constitutionally protected property interest

. See Burns v. Pa. Dep’t of Corr. , 544 F.3d 279, 286 (3d Cir. 2008 ) . Because the District Court overlooked this allegation when it dismissed Talley’s due process claims, this is another
reason to reverse and remand

.9

Appellees agree that a remand is necessary but argue that it should be limited because it is unclear wheth er Talley claims he lost funds from his account. T he complaint indicates otherwise : Talley was allegedly required “to pay” for equipment he destroyed

. App. 53 ( ¶ 52) . For that reason, Talley’s due process claim s based on the property interest against Yodis and Dupont must proceed to discovery.
D The District Court held that Talley did not allege a constitutionally protected liberty interest

. To establish such an interest in the prison conditions context, “the right alleged must confer ‘freedom from restraint which .

. . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Williams v.
S ec’y Pa. Dep’t of Corrs

. , 848 F.3d 549, 559 (3d Cir. 2017) (quoting Griffin v. Vaughn , 112 F.3d 703, 708 (3d Cir. 1997)). Although we held in Griffin that “administrative custody” for as long as 15 months does not create an atypical and significant hardshi p,

see 112 F.3d at 708, that decision came at the summary judgment stage. And the hardship inquiry is “fact

- intensive

. ” Mitchell v. Horn , 318 F.3d 523, 532

– 33 (3d Cir. 2003) (citation omitted)

. Because the standard is so fact

- based, in Mitchell we reversed the dismissal of a due process claim whe re , as here, the plaintiff filed the complaint challenging his disciplinary confinement pro se. Id. We held that this was the right approach

— even though the case was similar to Griffin

— given the procedural posture, the plaintiff’s pro se status, and the fact that “the record [was] not sufficiently developed for us to determine whether there were other features of [the] confinement that meaningfully distinguished10

[the plaintiff’s] situation from that in Griffin .” Id. at 532. The case involved “several months” of disciplinary confinement. I d. at 526. In this case, t he District Court cited Griffin without discussing Mitchell

. Considering the similarities between this appeal and Mitchell , we will reverse the January 24, 2019 order to the extent it dismissed Talley’s due process liberty interest claims against Yodis, Dupont, and the Program Review Committee members

. E
We turn next to the Eighth Amendment claim s . T he District Court held that Yodis “did not deprive [Talley] of basic necessities” or impose a punishment that dramatically departed from accepted standards of confinement. App. 15

– 16. The District Court also dismissed as too speculative Talley’s Eighth Amendment claim that Secre tary Wetzel was willfully blind to the practice of placing prisoners in solitary confinement for conduct arising from mental illness. Appellees argue that Talley lacks a viable Eighth Amendment claim because his disciplinary custody term actually lasted 1 9 days, not 13 months; even 13 months would not be constitutionally significant; he was in disciplinary custody “due to his own misbehavior”; and he did not point to evidence of deliberate indifference “by any individual defendant” in his opening brief. We disagree. First, at this stage of the litigation, we must accept Talley’s allegation that he was in solitary confinement for 13 months

. We have held that a prisoner stated an Eighth Amendment claim against Pennsylvania officials

— including Secretary Wetzel

— who were responsible for giving him “multiple 30

- day stints in solitary confinement” over the11

course of 13 months despite knowledge of his significant mental health problems. Palakovic v. Wetzel , 854 F.3d 209, 216

– 217, 226 (3d Cir. 2017). We emphasized “t he robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long

- term isolation in solitary confinement.” Id. at 225. These “increasingly obvious” risks; the defendants’ alleged knowledge of the plainti ff’s mental health issues; and his claims about the defendants’ awareness of suicides and self

- harm by other solitary prisoners

— along with a subsequent U.S. Department of Justice investigation of the plaintiff’s facility

— allowed his claim to survive motion s to dismiss

. Id. at 226. Because 30

- day stints in solitary confinement over a period of 13 months are shorter than the 13 month s Talley alleges, and because both cases turned on prison officials’ alleged deliberate indifference to a prisoner’s mental illness, Palakovic requires Talley’s Eighth Amendment claims to proceed to discovery

. Appellees’ argument about Talley’s misconduct causing his restricted confinement is an unpersuasive attempt to distinguish Palakovic . First, although we may consider prison officials’ penological purposes when evaluating their disciplinary decisions under the Eighth Amendment, see Porter v. Pa. Dep’t of Corrs. , 974 F.3d 431, 44 6 (3d Cir. 2020) , Appellees do not explain how Talley’s alleged misconduct would justify putting him in solitary for 13 months despite his mental illness. See Response Br. 13 & n.11, 39. Second, although Palakovic does not expla in exactly how the prisoner in that case ended up in isolation, the opinion indicates that his “behavior” arising from his mental illness
was the cause. See Palakovic , 854 F.3d at 216. Thus, Palakovic is more like this case than Appellees suggest.12

Finally, contrary to Appellees’ point about Talley not discussing deliberate indifference, Talley’s opening brief cited the complaint’s allegation that Secretary Wetzel and Hearing Officer Yodis were responsible for putting him in solitary despite his mental illness, comparing the case to Palakovic . Talley Br. 54 (citing App. 48

– 49, 57). Talley emphasized our recognition of “the increasingly obvious” risks of prolonged solitary confinement. Talley Br. 54

– 55 (quoting Palakovic , 85 4 F.3d at 226). H e therefore stated a claim against Yodis, who made the disciplinary decision. Whether the District Court correctly ruled that Talley’s claim against Secretary Wetzel was too speculative is a closer question. Talley’s allegation that Wetzel was willfully blind to the “ongoing practice” of putting mentally ill prisoners in disciplinary custody for unintentional violations of prison rules might seem speculative at first glance , but it is enough in context. Wetzel is the S ecretary of the DOC an d we allowed a similar claim to proceed against him in Palakovic . In that case we held that the plaintiff adequately alleged that Wetzel was deliberately indifferent to the obvious risks of prolonged solitary confinement of a mentally ill prisoner, especia lly given Wetzel’s knowledge of specific instances of suicide and self

- harm by other prisoners held in isolation. Palakovic , 854 F.3d at 226. We noted that, as here, the plaintiff’s placement on a mental health roster supported the inference “ that prison o fficials [including Wetzel] had (or should have had) knowledge of th[e] diagnoses.” Id. The similarities between the claims against Wetzel in Palakovic and this case, as well as Talley’s pro se status when he filed his complaint , support reversing the order dismissing the claim against Wetzel.13

See Higgs v. Att’y Gen. , 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally

construe a pro se litigant’s pleadings is well

- established.”).

* * * For the reasons stated, we will reverse the Distric t Court’s January 24, 2019 and August 7 , 20 19 orders and remand for further factual development as to the following claims: the Eighth Amendment claims against Yodis and Secretary Wetzel; the due process property interest claims against Yodis and Dupont; t he due process liberty interest claims against Yodis, Dupont, and the Program Review Committee members ; and the ADA and Rehabilitation Act claims against the Department of Corrections. In allowing these claims to proceed to discovery, we express no opinion as to their merits. That decision will be the District Court’s task at summary judgment or trial.