Isby v. Brown

• Decision Date: 10 May 2017
• Docket Number: No. 15-3334,15-3334
• Citation: 856 F.3d 508
• Parties: Aaron E. ISBY, Plaintiff–Appellant, v. Richard BROWN, et al. Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

856 F.3d 508

Aaron E. ISBY, Plaintiff–Appellant,

v.Richard BROWN, et al. Defendants–Appellees.

No. 15-3334

United States Court of Appeals, Seventh Circuit.

Argued February 8, 2017

Decided May 10, 2017

Ishan Bhabha, Attorney, Jenner & Block LLP, Washington, DC, Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Plaintiff–Appellant.

Aaron T. Craft, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants–Appellees.

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 SCU. 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...