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Isby v. Brown

United States Court of Appeals, Seventh Circuit

May 10, 2017

Aaron E. Isby, Plaintiff-Appellant,
Richard Brown, et al. Defendants-Appellees.

          Argued February 8, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:12-cv-116-JMS-MJD - Jane E. Magnus-Stinson, Chief Judge.

          Before Wood, Chief Judge, Flaum, Circuit Judge, and Conley, District Judge. [*]

          Flaum, Circuit Judge.

         Aaron E. Isby has been held in administrative segregation-or, as it is better known, solitary confinement-for over ten years and counting. He filed suit against various prison employees under 42 U.S.C. § 1983, alleging that his continued placement in administrative segregation violated his Eighth Amendment right to be free from cruel or unusual punishment as well as his Fourteenth Amendment rights under the Due Process Clause. Isby sought leave to proceed in forma pauperis in the district court, despite having already accumulated three "strikes" for filing frivolous suits or appeals and thus being restricted under the Prison Litigation Reform Act ("PLRA") from seeking pauper status. 28 U.S.C. § 1915(g). Unaware of Isby's strikes, the district court granted Isby's request. The court later granted summary judgment in favor of defendants on the due process claim, and, following a bench trial, entered judgment against Isby on his Eighth Amendment claim.

         Still unaware of Isby's three-strikes status, the district court granted him leave to proceed in forma pauperis on appeal. After briefing on appeal was complete, Isby's restricted status came to our and the parties' attention; and two days prior to oral argument, defendants-appellees moved to dismiss this appeal "due to [Isby's] deceptive acts in failing to inform the district court of his numerous 'strikes' under the [PLRA]." For the reasons that follow, we deny the motion to dismiss, affirm the district court with respect to Isby's claim under the Eighth Amendment, and reverse and remand for further proceedings on Isby's due process claim.

         I. Background

         A. Factual Background

         In 1989, Isby was convicted of robbery resulting in serious bodily injury and incarcerated at the Pendleton Correctional Facility in Indiana. In October of the following year, a counselor at Pendleton allegedly became verbally abusive. In response, Isby hit him in the face, resulting in officers gassing Isby and entering his cell with dogs, a fire hose, and a fully- armored cell-extraction team. In the ensuing altercation, one of the dogs was killed, and Isby stabbed two correctional officers-one in the neck, and the other in the head, through a helmet. See Isby v. Clark, 100 F.3d 502, 504 (7th Cir. 1996). Isby was subsequently convicted of two counts of attempted murder and battery, and sentenced to an additional forty years in prison.

         After his second conviction, Isby was moved among various facilities in Indiana and received several major-conduct reports for Class A or B infractions, including battery (in June 1999) and intimidation (in October 2005). On October 4, 2006, Isby was transferred to the Wabash Valley Correctional Facility. During his first nineteen days at Wabash Valley, he was housed in the general population and was not involved in any infractions, write-ups, or disturbances. On October 23, however, Isby was transferred to department-wide administrative long-term segregation (now called administrative restrictive-status housing) in the Secured Housing Unit ("SHU, " now called the "Special Confinement Unit" or "SCU").[1] Isby has remained in the SCU since that time.[2]

         Isby's cell is approximately eighty square feet, and he remains inside it for twenty-three hours each day. There are windows through which Isby can see the hallway with a skylight, and a hallway clock is also visible from Isby's cell. He has a television and desk and is able to do some exercises such as push-ups in his cell. Isby is limited to one hour per day of out-of-cell exercise in a small outdoor enclosure surrounded by a chain-link fence with a basketball hoop and a pull-up bar. A number of witnesses testified that the outdoor exercise area is frequently covered in bird feces or even dead birds, which the facility refuses to clean. Isby testified that in light of these conditions, including that he is forced to wear a "nylon dog leash" when outside, he sometimes declines the one hour of outside time allotted to him. Another inmate formerly assigned to the SCU testified that the cramped living conditions prevented him from getting sufficient exercise, such that when he was finally released back into the general population, he "sweated profusely" while walking and "almost fainted."

         Per the district court's findings at trial, Isby also may be outside his cell for social visits, attorney visits, medical appointments, showers, and meetings with prison staff as needed. However, because Isby is housed in the SCU, he does not have access to the vocational, work, or educational programs offered to general-population inmates. Isby is also limited to one personal phone call each week (and legal calls as needed), whereas general-population inmates receive daily telephone access. Isby may communicate with correctional staff when they are on the range (i.e., cell block), as well as with medical and mental-health personnel when they pass out medication and conduct mental-status reviews. He also may communicate orally with other inmates when they are in the recreation area and from cell to cell, though when inmates communicate on the range, other inmates will sometimes disrupt the conversation with radios or by speaking loudly. Isby can send letters to and receive mail from family and friends; but all outgoing legal and personal mail and incoming personal mail is subject to an open-mail rule so that staff can check for contraband and ensure that the sender or recipient matches who is listed on the envelope.[3]

         The district court found that cells in the SCU contain security lights that vary between five and nine watts and are on twenty-four hours per day, so that officers can see into the cells when they walk through the ranges. A former inmate testified that the lights in the SCU are brighter than those in general population, but defendant Richard Brown, the Superintendent of Wabash Valley, testified that they are the same wattage. Inmates are not able to control the lights, and it is against prison rules to attempt to cover the light, including during nighttime hours. No rule, however, prohibits an inmate from putting a towel, shirt, or other clothing over his eyes when he sleeps. A number of inmates (including Isby) testified that their vision or sleep has been adversely affected by the twenty-four hour lighting, and that they have developed headaches.

         The district court found that temperatures in the SCU are maintained within normal limits, although the court noted that, on at least one occasion, temperatures approached forty degrees, and some inmates had to be moved to other housing for their own safety. Various inmates testified that they "freeze" during the winter and "burn ... up" in the summer. Regardless of the season, inmates sleep on a thin, vinyl-covered foam mattress laid over a concrete slab, with a light knitted blanket and two sheets. Isby complains that these sleeping arrangements started causing him back problems in 2013. His medical records reflect that his symptoms improved somewhat by July 2014 with osteopathic manipulative treatment.

         Isby has eaten all of his meals alone from food trays passed by correctional officers through a narrow port in the cell door. Aramark Food Services contracts with Indiana to provide meals to prison inmates, including those housed in the SC U.Sample Aramark menus introduced during trial reflect that the standard daily caloric intake for an adult male is 2800 calories per day, but the actual number of calories served, averaged over a weekly basis, has never matched or exceeded this standard.[4] Numerous inmates testified at trial that both the quantity and quality of the food is poor. One SCU inmate also testified that the water in the SCU is rusty, and that if an inmate does not boil the water before consuming it, he will "end up feeling nauseated, sick, diarrhea." Isby is five feet, eleven inches tall, and over the past five years, his weight has fluctuated between 148 and 163 pounds. In September 2010 he weighed 152 pounds, and in April 2015 he weighed 148.[5]

         Inmates in the SCU are allowed to shower three times a week (as opposed to daily in the general population), and trial testimony reflected that the water in the showers alternates between "scalding hot" and freezing cold. Inmates also testified that toilets do not flush adequately, in some instances leaving feces, or the odor of feces, present in a cell for multiple days. SCU inmates are provided with a change of clothing once a year and new underwear every six months. The standard-issue clothing for a SCU inmate is a thin red jumpsuit. In winter, inmates are also provided with a "very, very thin" coat, and, if they can afford it, they have the option of purchasing additional warm clothing from the commissary. During trial, a number of inmates testified that when they send clothes to the laundry to be washed, they come back dirty and damaged. Isby said that he hand washes his clothing for that reason. However, Chris Nicholson, a correctional lieutenant with responsibility over the SCU, testified that clothes generally come back clean, and that there have been maybe three occasions in four years when laundry was returned dirty due to a malfunctioning dryer.

         A number of inmates, including Isby himself, testified to feelings of anger, frustration, and helplessness resulting from prolonged and isolated detainment in the SCU. However, Isby is not receiving and has not received treatment for mental illness, and seriously mentally ill inmates are not housed in the SCU. Isby has been seen by mental-health providers at weekly, thirty-day, and ninety-day intervals to determine whether he has any mental-health concerns that would require him to be removed from the SCU. Records of these visits from 2012 to 2014 show that Isby reported no mental-health concerns, though he said things like, "I'm doing the best I can under the circumstances, " "I'm okay but I'd be better if they let me out of here, " and "How do you think I'm doing, " and complained about his time in segregation being excessive. There is no record that Isby ever requested but was refused mental-health treatment.

         Inmates in administrative segregation have their placement reviewed every thirty days.[6] The review consists of Wabash Valley staff members examining the offender's Case Plan and other documents related to conduct, history, and safety concerns. The IDOC does not require a formal hearing as part of these thirty-day reviews.[7]

         In the over-ten-year period that Isby has been assigned to the SCU, IDOC's stated reason for his continued placement following each review has been the same: "Your status has been reviewed and there are no changes recommended to the Southern Regional Director at this time. Your current Department-wide Administrative segregation status shall remain in effect unless otherwise rescinded by the Southern Regional Director." During the 2015 bench trial on Isby's Eighth Amendment claim, Lieutenant Nicholson testified that he had never recommended that Isby be released from the SCU between 2006 and the present time "[b]ecause he killed a ... dog and stabbed two officers/' referring to the incident that had occurred in 1990. In response to questions from the court, Jerry Snyder, the SCU Unit Team Manager, testified at trial that he had never recommended that Isby be released from the SCU because of the incident in 1990, because Isby had not signed up for two voluntary programs offered by IDOC to recondition inmates housed in the SCU for return to the general population, and because Isby had been "extremely argumentative and disrespectful with staff." The record shows that Isby received a major-conduct report for disorderly conduct in October 2007, but that he had no major disciplinary infractions from early 2009 until December 2014.[8] Snyder testified, however, that he was aware of incidents during the past few years when Isby has been uncooperative with staff, and that these incidents were not always written up in conduct reports because some officers overlook "minor" infractions by offenders already in long-term restrictive housing.

         Offenders in the SCU may also request a more formal review of their placement every ninety days. If such a request is made, a casework manager interviews the inmate and submits a report to the Review Committee and Unit Team Management, who then decide whether or not to keep the inmate segregated from the general population. According to Snyder, documents used in the thirty-day reviews are initially reviewed by the case worker assigned to the inmate, and then by various other individuals up the chain of command, culminating in a review by Snyder himself, and, if release from the SCU is recommended, by the executive director of operations for the IDOC in Indianapolis. The parties dispute the extent to which Isby has requested any such hearing. Defendant Beverly Gilmore, a case worker at Wabash Valley, claimed that Isby requested only two ninety-day reviews, and it is undisputed that full reviews were conducted on or about April 7, 2011, and June 27, 2011, both of which included interviews with Isby and reports considered by the Review Committee. In contrast, Isby asserted in an October 2013 affidavit that he has requested this more formal review "over [t]en times since December 19, 2009, " with his most recent requests for review being submitted in June 2012 and May 2013.

         The IDOC also offers self-help programs designed to assist offenders with examining their past behavior and formulating new perspectives. Two of these programs are the Actions, Consequences, and Treatment ("ACT") Program and the Moral Reconation Program. They both include counseling to help inmates learn how to make better decisions. To participate in the ACT Program, the offender must write a request to his caseworker, and the caseworker and Unit Team Manager Snyder choose the participants. The fifth and last phase in the ACT Program involves release from the SCU and transfer to a different unit or facility. The Moral Reconation Program is a twelve-phase cognitive-behavior program, and an offender must likewise make a request in order to participate. These programs offer a means for inmates to potentially earn their way out of the SCU, though in the past, some inmates have also been released from the SCU without having participated in these programs.

         Isby believes that the ACT Program is a "mind restructuring program ... designed to ... indoctrinate certain prisoners and turn them into snitches." Isby has declined to participate in these types of programs. According to defendants-appellees, had Isby expressed interest in participating in either program, he would have been recommended immediately.

         The IDOC has also implemented the New Castle Correctional Facility transition program, a step-down program for offenders who have been in restrictive-status housing for several years or longer. The New Castle transition unit has more programming than that available in the SCU, and the unit is designed to give offenders a greater opportunity for success in adjusting to the general population. The program involves a therapeutic component requiring an inmate to accept responsibility for his own actions.

         In August 2014, Snyder advised Isby that Snyder was considering transferring Isby from the SCU to the New Castle transition unit. Snyder explained that prison officials were reviewing all offenders who had been in restrictive-status housing for five or more years, and that officials probably would recommend transfer to New Castle in all of those cases because of the length of time the inmates had been in a restrictive setting. While discussing the program, Isby became adamant that he would not go and that they could not make him go to New Castle. He said there was no reason for him to go to the New Castle transition unit because he did not need to and was not interested, and he demanded to be released to general population at Wabash Valley. Snyder continued to try to talk to Isby, but Isby kept interrupting him. Snyder eventually discontinued the interview, and although several other long-term segregation inmates were recommended for and transferred to New Castle, Isby received no such recommendation or transfer. Snyder said he did not recommend Isby for the program because it requires cooperation. Snyder also expressed concern at the bench trial that if Isby were placed in general population without going through a transition program, his anger issues would present a safety concern for other offenders and prison staff.

         B. Procedural Background

         Isby filed this lawsuit in May 2012, and the district court granted his request to proceed in forma pauperis. His second amended complaint alleged, among other things, that his then six-year (and now ten-year) assignment to the SCU violated the Eighth Amendment's prohibition on cruel and unusual punishment, and that he had not been afforded adequate review of his continued assignment to the SCU, in violation of the Fourteenth Amendment's Due Process Clause.[9]

         In September 2013, after the dismissal of two defendants, [10]the remaining defendants moved for summary judgment on the due process claim, arguing that Isby had no right to be free from segregated confinement and that the reviews of his confinement-even in the absence of any in-person hearing- satisfied minimum constitutional guarantees. Defendants also argued that they were entitled to qualified immunity in light of Isby's failure to prove that their conduct violated clearly established law. The district court granted defendants' motion as to the due process claim, concluding that all that was constitutionally required in cases like Isby's were "informal, non-adversarial ... periodic review[s]"at a frequency "committed to the discretion of prison officials" and sufficient to ensure that segregation does not become a "pretext for indefinite confinement." The court found that although the parties disputed whether Isby had requested any formal ninety-day reviews since 2011, summary judgment was ...

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