Perry v. Spencer

94 F.4th 136

Jwainus PERRY, Plaintiff, Appellant, v. Luis S. SPENCER, Commissioner; Thomas Dickhaut, Former Superintendent; Anthony M. Mendonsa, Former Deputy of Classification; James J. Saba, Superintendent; Abbe Nelligan, Deputy of Classification; Patrick Toolin, Correctional Program Officer; Kristie Ladouceur; Carol Mici; Thomas Neville, Defendants, Appellees, Jens Swanson, Property Officer, Defendant.

No. 16-2444

United States Court of Appeals, First Circuit

February 21, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. M. Page Kelley, Magistrate Judge]

Rosalind E. Dillon, with whom Daniel Greenfield, Alexis Garmey Chardon, Roderick & Solange MacArthur Justice Center, and Terry Garmey & Associates were on brief, for appellant.

Nancy Ankers White, Special Assistant Attorney General, with whom Sheryl F. Grant, Counsel, and Mary Eiro-Bartevyan, Counsel, were on brief, for appellees.

Claudia Pare, Melissa Giangrande, Matthew Marchiori, and Hogan Lovells US LLP on brief for amici curiae Former Corrections Officials.

John P. Bueker on brief for amicus curiae Prisoners' Legal Services.

Mary B. McCord, Kelsi Brown Corkran, Amy Marshak, Seth Wayne, Shelby Calambokidis, and Institute for Constitutional Advocacy and Protection on brief for amici curiae Current and Former Prosecutors and Department of Justice Officials.

Nancy Gertner on brief for amici curiae Center for Law, Brain, and Behavior and Neuroscientists.

John J. Butts, Nina B. Garcia, Hannah E. Gelbort, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for amici curiae Terry Kupers, Craig Haney, Pablo Stewart, and Stuart Grassian.

Jennifer A. Wedekind, Carol J. Garvan, Zachary L. Heiden, Gilles R. Bissonnette, Matthew R. Segal, Jessie J. Rossman, Areeba Jibril, and Lynette Labinger on brief for amici curiae American Civil Liberties Union and its state affiliates.

Jaime A. Santos, William E. Evans, and Goodwin Procter LLP on brief for amicus curiae Professor John F. Stinneford.

Clark M. Neily III and Jay R. Schweikert on brief for amicus curiae Cato Institute.

Before Barron, Chief Judge, Lynch, Howard, Thompson, Kayatta, Gelpí, Circuit Judges.

Opinion En Banc

BARRON, Chief Judge.

This appeal concerns Jwainus Perry's challenge to the grant of summary judgment on his claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV, § 1 ("[N]or shall any state deprive any person of ... liberty ... without due process of law."). Perry brought the claim in the United States District Court for the District of Massachusetts pursuant to 42 U.S.C. § 1983 against officials of the Massachusetts Department of Correction ("DOC"). He alleges that the DOC officials violated his right to procedural due process by depriving him of "liberty ... without due process of law" during a portion of his life sentence for first-degree murder under Massachusetts law. He alleges that the DOC officials did so by placing him in solitary confinement for a total of nearly two years without affording him either notice of the factual basis for that confinement or an opportunity for rebuttal.

The District Court granted summary judgment to the defendants based on qualified immunity after determining that, at the relevant time, clearly established law did not treat such prolonged solitary confinement as a deprivation of a liberty interest that the Due Process Clause protects. Perry v. Spencer, No. 12-CV-12070, 2016 WL 5746346, at *16 (D. Mass. Sept. 30, 2016). A panel of this Court affirmed that ruling. Perry v. Spencer, 751 F. App'x 7 (1st Cir. 2018). But the panel also ruled that, even if Perry's confinement did implicate a liberty interest that the Due Process Clause protects, Perry failed to show that he had been denied the process that he was due under clearly established law at the relevant time. Id. at 11. Rehearing the case en banc, we affirm the District Court's grant of summary judgment to the defendants based on qualified immunity. We do so on the ground that, while Perry supportably has shown that his segregated confinement implicated a liberty interest and that the defendants denied him the process that was due to him before depriving him of that interest, there is no basis for concluding on this record that it would have been clear to a reasonable corrections officer that the confinement implicated a liberty interest. In so holding, we clarify both the circumstances in which the use of solitary confinement results in a deprivation of a liberty interest that the Due Process Clause protects and the process that is due in consequence of such a deprivation.

I.

A.

On December 10, 2010, while Perry was confined in the general prison population at the DOC's Souza-Baranowski Correctional Center ("SBCC"), DOC officials "received an anonymous informant letter." Perry, 2016 WL 5746346, at *8. The letter alleged that "Perry had made threats against an inmate who was a suspected gang member," would "'get anybody' from" a different gang "in retaliation for [a] knife fight he had been involved in" two years prior, and had "motivated" another attack that had occurred in the prison the previous month. Id.

The same day, and following the letter's receipt, DOC officials moved Perry from the general prison population within SBCC to a Special Management Unit ("SMU") in that same facility. Id. at *9. The then-operative DOC regulations described an SMU as "[a] separate housing area from general population ... in which inmates may be confined for reasons of administrative segregation, protective custody, or disciplinary detention." 103 MASS. CODE REGS. § 423.06 (2007).

The parties agree that prior to Perry's placement in the SMU he was seen by medical staff and cleared for SMU placement, as required by the DOC regulations. See id. § 423.08(2)(a). The parties agree that Perry was thereafter held in an SMU for a total of fifteen consecutive months -- spanning his time at both SBCC and another DOC facility, Massachusetts Correctional Institution-Cedar Junction ("MCI-Cedar Junction") -- on "awaiting action status." Perry, 2016 WL 5746346, at *1, *9.

The regulations then in place defined confinement on "awaiting action status" as "confinement of an inmate in an individual cell, which may be ... in a[n SMU], until an investigation is completed or hearing is held relative to a disciplinary, administrative, or classification matter." 103 MASS. CODE REGS. § 902.01 (2007). The regulations further provided that an inmate may be placed in an SMU in various "instances," such as when the inmate is "pending investigation for disciplinary offenses," "pending transfer," or "for the inmate's own protection."¹ Id. § 423.08(1). Perry was told at various points during the fifteen months that he was confined in an SMU at either SBCC or MCI-Cedar Junction that he was so confined "pending investigation," "pending classification," or "pending an out-of-state placement." Perry, 2016 WL 5746346, at *1.

Both the District Court and the panel in this case described the conditions that Perry experienced in the SMUs during the fifteen months as "akin to solitary confinement." Perry, 751 F. App'x at 8; see also Perry, 2016 WL 5746346, at *1 n.3 ("Notwithstanding the bureaucratic nomenclature, as Justice Kennedy has said, 'administrative segregation' is better known as 'solitary confinement.'" (quoting Davis v. Ayala, 576 U.S. 257, 286, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015) (Kennedy, J., concurring))). Specifically, Perry spent up to twenty-three or twenty-four hours per day alone in a windowless cell,² in which he ate his meals alone and from which he was permitted to leave only for certain limited reasons, including for outdoor exercise alone one hour per day five days per week. Perry, 2016 WL 5746346, at *4 & n.7, *5. He also had limited visitation and phone privileges. Id.

The regulations required Perry to receive "SMU Reviews" while he was in an SMU. See 103 MASS. CODE REGS. § 423.08(2)(b) (2007). Those reviews ensured that "Perry received periodic written notifications that he was on awaiting action status ... and that administrative reviews of his placement had been conducted." Perry, 2016 WL 5746346, at *11.

The regulations did not require that Perry receive either notice of the factual basis for his placement in the SMUs on "awaiting action status" or an opportunity to rebut his placement in them on that basis. See 103 MASS. CODE REGS. § 423.08 (2007). The regulations also did not place a limit on the time that an inmate could be kept in an SMU on "awaiting action status." See id.

In March 2012, while Perry was still in the SMU at SBCC, he was transferred to an out-of-state prison facility in Connecticut. Perry, 2016 WL 5746346, at *1 & n.4. Approximately six months later, he was sent back to DOC custody, at which point DOC officials returned Perry to the SMU at MCI-Cedar Junction for another four and a half months, from September 2012 to February 2013. Id. Then, too, the parties agree, Perry was held in the SMU on "awaiting action status" and in conditions akin to those that he experienced during his initial fifteen-month period of confinement in SMUs.³

In November 2012, two months after Perry was returned to the SMU at MCI-Cedar Junction, the Supreme Judicial Court of Massachusetts ("SJC") held in LaChance v. Commissioner of Correction that "an inmate confined to administrative segregation on awaiting action status ... is entitled, as a matter of due process, to notice of the basis on which he is so detained; a hearing at which he may contest the asserted rationale for his confinement; and a post[-]hearing written notice explaining the reviewing authority's classification decision." 463 Mass. 767, 978 N.E.2d 1199, 1206-07 (2012). The SJC also held in LaChance that "in no circumstances may an inmate be held in segregated confinement on awaiting action status for longer than ninety days without a hearing." Id. at 1207....