Porter v. Pa. Dep't of Corr.

• Decision Date: 01 September 2020
• Docket Number: No. 18-3505,18-3505
• Citation: 974 F.3d 431
• Parties: Ernest PORTER, Appellant v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS ; John E. Wetzel, Secretary for Department of Corrections; Robert Gilmore; Super. for SCI Greene
• Court: U.S. Court of Appeals — Third Circuit

974 F.3d 431

Ernest PORTER, Appellant

v.PENNSYLVANIA DEPARTMENT OF CORRECTIONS ; John E. Wetzel, Secretary for Department of Corrections; Robert Gilmore; Super. for SCI Greene

No. 18-3505

United States Court of Appeals, Third Circuit.

Argued October 22, 2019

Opinion Filed: September 1, 2020

OPINION

GREENAWAY, JR., Circuit Judge.

In this case, we must decide whether our 2017 decision in Williams v. Secretary Pennsylvania Department of Corrections , 848 F.3d 549 (3d Cir. 2017), applies not only to death row inmates who have been granted vacatur, but also to death row inmates whose vacatur orders have been stayed pending appeal pursuant to local district court rules. In other words, we must determine whether the fact that a Pennsylvania state inmate received habeas relief in federal court, and is thereby subject to local rules, means that that inmate does not have a procedural due process right in avoiding continued indefinite solitary confinement. We decide that Williams governs this case and now hold that the existence of a stay does not extinguish procedural due process rights.

We are also asked to decide whether thirty-three years of solitary confinement may violate the Eighth Amendment. We answer this question in the affirmative. We acknowledge, as we must, that the claimed Eighth Amendment right here has not been clearly established. Further, we hold that representatives of the Pennsylvania Department of Corrections are entitled to qualified immunity on the Eighth Amendment claim. We will therefore reverse and remand in part and affirm in part.

I. BACKGROUND

A. Procedural Background

Plaintiff-Appellant Ernest Porter was convicted of murder in the first degree and sentenced to death in the Philadelphia County Court of Common Pleas in 1986. Since then, he has been incarcerated in the Pennsylvania Capital Case Unit ("the CCU"). He is currently housed at SCI Greene.

After his conviction and sentence were affirmed on direct appeal, Porter filed a Pennsylvania Post Conviction Relief Act ("PCRA") petition in state court. It was denied. But on June 26, 2003, a federal district court in the Eastern District of Pennsylvania granted, in part, Porter's 28 U.S.C. § 2254 petition. Most important, as relates to the present appeal, the District Court granted Porter relief regarding his sentence after determining that his penalty phase verdict form was unconstitutional. The District Court's order vacated Porter's death sentence and required the Commonwealth to conduct a new sentencing hearing within 180 days. Finally, the District Court stated that this order would be stayed if either side appealed: "[I]f either Petitioner or Respondents file an appeal to the United States Court of Appeals for the Third Circuit, the entry of this Order will be stayed pursuant to Eastern District of Pennsylvania Local Rule 9.4(12) pending the disposition of that appeal." Porter v. Horn , 276 F. Supp. 2d 278, 365 (E.D. Pa. 2003). Local Rule 9.4(12) provides: "If a certificate of appealability is granted, the court must state the issues that merit the granting of a certificate and must also grant a stay pending disposition of the appeal, except as provided in 28 U.S.C. § 2262." E.D. Pa. Civ. R. 9.4(12).

Both Porter and the Commonwealth appealed to the Third Circuit, and the District Court's order was stayed. On February 7, 2007, we granted Porter's motion to temporarily hold the appeals in abeyance while the Pennsylvania courts adjudicate another PCRA petition that Porter has filed. We ordered the parties to file periodic status reports every sixty days. Because the Pennsylvania courts have not resolved that petition, the Third Circuit appeals remain in abeyance. The parties last filed a status report on June 30, 2020. Porter v. Horn et al. , ECF No. 03-9006 (3d Cir. June 30, 2020).

Porter filed the case before us in the Western District of Pennsylvania on June 12, 2017. He was initially pro se, but subsequently obtained counsel. See Porter v. Penn. Dep't of Corrs. , 2:17-cv-763, ECF Nos. 1, 28-31. In his suit, Porter argued that Defendants violated his rights under the Eighth and Fourteenth Amendments by continuing to confine him on death row even though his death sentence had been vacated. He requested damages, as well as injunctive and declaratory relief. Defendants denied these claims and argued that they were entitled to qualified immunity.

Defendants filed a motion for summary judgment and Porter filed a partial motion for summary judgment. The Magistrate Judge granted Defendants’ motion.¹ The Magistrate Judge decided that: 1) Williams does not give Porter a procedural due process interest in avoiding solitary confinement because Porter's death sentence remains active; 2) Porter has not offered evidence of actual injury or Defendants’ deliberate indifference so he cannot succeed on an Eighth Amendment claim; and 3) Porter cannot make a substantive due process claim based on the same allegations at issue in his Eighth Amendment claim. The Magistrate Judge did not reach the merits of Defendants’ qualified immunity defense.

B. Factual Background

Porter has been in solitary confinement on death row for more than thirty-three years. The Magistrate Judge summarized the conditions that Porter is subjected to daily as follows:

Cells in the CCU are no larger than 7 feet by 12 feet, and are closed with a door that has two narrow vertical windows, measuring 5 ½ inches wide and 36 inches long. The permanent fixtures in Porter's cell include a metal bed with a plastic mattress, a sink, toilet and desk.

As a CCU inmate, Porter spends the overwhelming majority of his time in his cell, including eating his meals alone. Porter is permitted to leave his cell for ten hours per week, two hours per day Monday through Friday. This includes time for basic hygiene, three showers per week, and for work duty. In addition, Porter is permitted to exercise in the open air five days per week. CCU exercise cages are no more than twice the size of a typical CCU cell, and one or two men are placed in an exercise area at the same time. Porter is permitted one non-contact personal visit per week, and three telephone calls per week. In addition, unless Porter specifically requests a mental health appointment, any medical or mental health consultations take place through his cell door, within listening range of prisoners in the surrounding cells.

On the occasions when Porter is permitted to leave his cell, he must undergo a visual strip search, and is handcuffed from behind, or handcuffed in front using a belt and tether. Job assignments are limited to janitorial duties on the CCU block, and performed in confined small spaces under close observation and monitoring. CCU prisoners are permitted in-cell study, using personal workbooks and reading material, but are otherwise precluded from participation in adult basic education courses, vocational learning opportunities or the chance to work towards a high school diploma. In addition, Porter is not permitted to attend religious services with the general population, but may receive a daily visit from a religious leader, for discussions through the narrow windows of his door.

Porter v. Penn. Dep't of Corrs. , 2018 WL 5846747, at *3–4 (W.D. Pa. Nov. 8, 2018) (internal record citations omitted). The parties agree that Porter has been subjected to these conditions throughout his confinement. It is also uncontested that Porter has not received any disciplinary infractions during his incarceration. However, the parties agree that he is unable to challenge his placement in solitary confinement or to earn any additional privileges.

In his Complaint, Porter alleged that his solitary confinement has caused "irreversible damage" to his mental health. JA 41. More specifically, he alleged that the effects of his solitary confinement include "severe anxiety, depression, panic, paranoia, bipolar mood swings, and at sometimes [sic] suicidal impulses. Plaintiff regularly takes depression medication." JA 41.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over Porter's 42 U.S.C. § 1983 suit under 28 U.S.C. § 1331. We have jurisdiction over Porter's appeal under 28 U.S.C. § 1291. We conduct a plenary review of the grant of summary judgment. See Williams , 848 F.3d at 557. Summary judgment should only be granted where the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We draw all reasonable inferences in the nonmovant's favor. See Williams , 848 F.3d at 557.

III. DISCUSSION

Porter argues that his thirty-three year incarceration in solitary confinement violates his procedural due process, Eighth Amendment, and substantive due process rights. He has brought suit under 42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff [ (1) ] must allege the violation of a right secured by the Constitution and laws of the United States, and [ (2) ] must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citing Parratt v. Taylor , 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) ). Defendants argue that they have not violated Porter's constitutional rights and that they are entitled to qualified immunity because the rights at issue were not clearly established.

Because we are mindful that "it is often appropriate and beneficial to define the scope of a constitutional right" to "promote[ ] the development of constitutional precedent" before deciding whether the right was clearly established, we will begin by evaluating whether Defendants have violated Porter's constitutional rights. Williams , 848 F.3d at 558 (quoting Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ).

A. Procedural Due Process

Porter first argues that, according to our precedent in Williams , Defendants have violated his...