In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3334
AARON E. ISBY,
Plaintiff‐Appellant,
v.
RICHARD BROWN, et al.
Defendants‐Appellees.
____________________
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.
____________________
ARGUED FEBRUARY 8, 2017 — DECIDED MAY 10, 2017
____________________
Before WOOD, Chief Judge, FLAUM, Circuit Judge, and
CONLEY, District Judge.*
FLAUM, Circuit Judge. Aaron E. Isby has been held in ad‐
ministrative 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, al‐
leging that his continued placement in administrative segre‐
gation violated his Eighth Amendment right to be free from
* Of the Western District of Wisconsin, sitting by designation.
2 No. 15‐3334
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 dis‐
trict court granted Isby’s request. The court later granted sum‐
mary 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 ap‐
peal. 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 dis‐
miss 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 counse‐
lor at Pendleton allegedly became verbally abusive. In re‐
sponse, Isby hit him in the face, resulting in officers gassing
Isby and entering his cell with dogs, a fire hose, and a fully‐
No. 15‐3334 3
armored cell‐extraction team. In the ensuing altercation, one
of the dogs was killed, and Isby stabbed two correctional of‐
ficers—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 mur‐
der and battery, and sentenced to an additional forty years in
prison.
After his second conviction, Isby was moved among vari‐
ous 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 Facil‐
ity. 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, how‐
ever, 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
1 Indiana Department of Corrections (“IDOC”) Policy #01‐04‐101,
“Adult Offender Classification,” allows for an offender to be placed in de‐
partment‐wide administrative segregation when that offender has a his‐
tory of battery on others, presents an extraordinary threat to themselves
or others, or presents special safety and security concerns. Section 11‐10‐
1‐7 of the Indiana Code similarly provides that an inmate may be invol‐
untarily segregated from the general population if the IDOC “first finds
that segregation is necessary for the offender’s own physical safety or the
physical safety of others.” Ind. Code § 11‐10‐1‐7(a).
2 According to Isby, defendants‐appellees neither gave him a hearing
prior to placing him in administrative segregation in 2006 nor notified him
of his placement by prison mail, and he was placed in the SCU absent any
4 No. 15‐3334
Isby’s cell is approximately eighty square feet, and he re‐
mains inside it for twenty‐three hours each day. There are
windows through which Isby can see the hallway with a sky‐
light, 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 as‐
signed 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 popula‐
tion, he “sweated profusely” while walking and “almost
fainted.”
emergency condition, charge, prison disturbance, or investigation. As the
district court noted, however, with respect to any claim arising from Isby’s
initial placement in the SCU without notice or a hearing, the two‐year stat‐
ute of limitations applicable to § 1983 actions arising from an alleged in‐
jury in Indiana has expired. See Ind. Code § 34–11–2–4; Serino v. Hensley,
735 F.3d 588, 590 (7th Cir. 2013).
As an aside, from December 29, 2014, to March 29, 2015, Isby was held
in disciplinary restrictive‐status housing in the SCU. His placement in this
even more restrictive form of segregation presumably stemmed from a
December 2014 incident described in further detail below, see infra n.8; and
his time in disciplinary restrictive‐status housing is not at issue in this ap‐
peal.
No. 15‐3334 5
Per the district court’s findings at trial, Isby also may be
outside his cell for social visits, attorney visits, medical ap‐
pointments, 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 pro‐
grams offered to general‐population inmates. Isby is also lim‐
ited 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 dis‐
rupt 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 per‐
sonal 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 secu‐
rity 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
3 This means that Isby’s general, non‐legal mail is routinely searched
and read. Outgoing legal mail is checked to ensure that it is entitled to
treatment as legal mail but is not otherwise read, copied, or otherwise in‐
terfered with in either sending or receipt.
6 No. 15‐3334
general population, but defendant Richard Brown, the Super‐
intendent 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 in‐
mate 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 devel‐
oped 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‐cov‐
ered foam mattress laid over a concrete slab, with a light knit‐
ted 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 some‐
what 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 cal‐
ories per day, but the actual number of calories served, aver‐
aged over a weekly basis, has never matched or exceeded this
No. 15‐3334 7
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 in‐
mate 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 fluctu‐
ated 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 testi‐
fied 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 stand‐
ard‐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 pur‐
chasing additional warm clothing from the commissary. Dur‐
ing 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
4 The meals served apparently average approximately 2500 calories,
or just under ninety percent of the standard.
5 Isby takes issue with the district court’s focus on only his recent
weight fluctuations, but as the defendants‐appellees point out in their
brief, the court focused on the more recent time period because Isby had
submitted into evidence Aramark menus dating back only to September
2010; and any claim accruing before May 15, 2010, would be barred by the
two‐year statute of limitations.
8 No. 15‐3334
reason. However, Chris Nicholson, a correctional lieutenant
with responsibility over the SCU, testified that clothes gener‐
ally 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 men‐
tal 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 re‐
quire 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 place‐
ment reviewed every thirty days.6 The review consists of Wa‐
bash Valley staff members examining the offender’s Case
Plan and other documents related to conduct, history, and
6 Section 11‐10‐1‐7 of the Indiana Code provides that the IDOC “shall
review an offender [involuntarily segregated from the general population]
at least once every thirty (30) days to determine whether the reason for
segregation still exists.” Ind. Code § 11‐10‐1‐7(a) and (b).
No. 15‐3334 9
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 Depart‐
ment‐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 be‐
tween 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 re‐
condition inmates housed in the SCU for return to the general
population, and because Isby had been “extremely argumen‐
tative 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 infrac‐
tions from early 2009 until December 2014.8 Snyder testified,
7 See IDOC Policy #02‐01‐111, VII.A (“It shall not be necessary to hold
a formal Classification Committee Hearing in order to complete this re‐
view.”).
8 In December 2014, Correctional Officer Jaymison Bennett went to
Isby’s cell to retrieve the phone from Isby when his twenty minutes of al‐
lotted phone time was up. Isby became angry because Officer Bennett did
10 No. 15‐3334
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 of‐
fenders already in long‐term restrictive housing.
Offenders in the SCU may also request a more formal re‐
view of their placement every ninety days. If such a request is
made, a casework manager interviews the inmate and sub‐
mits a report to the Review Committee and Unit Team Man‐
agement, 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 re‐
viewed by the case worker assigned to the inmate, and then
by various other individuals up the chain of command, cul‐
minating in a review by Snyder himself, and, if release from
the SCU is recommended, by the executive director of opera‐
tions for the IDOC in Indianapolis. The parties dispute the ex‐
tent 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 un‐
disputed 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.
not allow him time to say goodbye. Isby testified that he then placed the
phone on the “cuff‐port,” a small opening in the cell door through which
prisoners’ hands can be handcuffed. Bennett testified that Isby threw the
phone toward the cuff‐port of his closed cell door. Video evidence showed
that Isby swiped his hand toward the officer through the cuff‐port. Ben‐
nett then sprayed Isby with pepper spray, and Isby was found guilty of
“attempted battery without a weapon.” There is no allegation that Isby
made any physical contact with the officer, either with the phone handset
or his hand.
No. 15‐3334 11
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 formulat‐
ing 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 partici‐
pate in the ACT Program, the offender must write a request
to his caseworker, and the caseworker and Unit Team Man‐
ager Snyder choose the participants. The fifth and last phase
in the ACT Program involves release from the SCU and trans‐
fer to a different unit or facility. The Moral Reconation Pro‐
gram 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 partic‐
ipated in these programs.
Isby believes that the ACT Program is a “mind restructur‐
ing program … designed to … indoctrinate certain prisoners
and turn them into snitches.” Isby has declined to participate
in these types of programs. According to defendants‐appel‐
lees, had Isby expressed interest in participating in either pro‐
gram, he would have been recommended immediately.
The IDOC has also implemented the New Castle Correc‐
tional Facility transition program, a step‐down program for
offenders who have been in restrictive‐status housing for sev‐
eral years or longer. The New Castle transition unit has more
12 No. 15‐3334
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 re‐
sponsibility for his own actions.
In August 2014, Snyder advised Isby that Snyder was con‐
sidering transferring Isby from the SCU to the New Castle
transition unit. Snyder explained that prison officials were re‐
viewing all offenders who had been in restrictive‐status hous‐
ing for five or more years, and that officials probably would
recommend transfer to New Castle in all of those cases be‐
cause of the length of time the inmates had been in a restric‐
tive setting. While discussing the program, Isby became ada‐
mant 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 eventu‐
ally discontinued the interview, and although several other
long‐term segregation inmates were recommended for and
transferred to New Castle, Isby received no such recommen‐
dation or transfer. Snyder said he did not recommend Isby for
the program because it requires cooperation. Snyder also ex‐
pressed concern at the bench trial that if Isby were placed in
general population without going through a transition pro‐
gram, 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
No. 15‐3334 13
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 re‐
view 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 “infor‐
mal, non‐adversarial … periodic review[s]”at a frequency
“committed to the discretion of prison officials” and sufficient
9 The operative complaint named as defendants Richard Brown (Su‐
perintendent at Wabash Valley), Bruce Lemmon (Commissioner of
IDOC), James Wynn (Director of Classification for IDOC), Stanley Knight
(Interim Deputy Commissioner for IDOC), Jack Hendrix (Assistant Super‐
intendent at Wabash Valley), Jerry Snyder (SCU Unit Team Manager at
Wabash Valley), Beverly Gilmore (Casework Manager at Wabash Valley),
Julie Snider (Counselor at Wabash Valley), and Dusty Russell (Custody
Supervisor at Wabash Valley).
10 In June 2013, defendants Knight and Lemmon moved to dismiss,
arguing that sovereign immunity barred Isby’s action against them and
that neither of them was personally involved in the alleged deprivations
of Isby’s constitutional rights. Isby did not oppose this motion, and in July
2013, the district court dismissed Knight and Lemmon.
14 No. 15‐3334
to ensure that segregation does not become a “pretext for in‐
definite confinement.” The court found that although the par‐
ties disputed whether Isby had requested any formal ninety‐
day reviews since 2011, summary judgment was nonetheless
appropriate because it was undisputed that Isby had received
ongoing thirty‐day reviews of his placement, and Isby had
not cited to any authority requiring those reviews to be any‐
thing more than “informal and non‐adversarial.”
In July 2015, the district court held a two‐day bench trial
on Isby’s Eighth Amendment claim.11 Two months later, the
district court entered judgment in defendants’ favor. The dis‐
trict court found that the food, clothing, lighting, laundry, and
opportunities for exercise, showers, and time outside pro‐
vided to Isby in the SCU passed constitutional muster. The
court noted that Isby’s weight over the past five years had not
fluctuated greatly, nor was there evidence of any severe
health problem; the district court also explained that any
Eighth Amendment concern implicated by twenty‐four hour
lighting in the SCU was negated by the fact that Isby can cover
his eyes with clothes or towels. The court credited Isby’s tes‐
timony that he feels “dehumanized” by his conditions of con‐
finement but found it significant that Isby has not taken “ad‐
vantage of any of the opportunities to speak with mental
health practitioners, engage in counseling, or otherwise dis‐
cuss or attempt to diffuse these difficult circumstances.”
11 After Isby presented his case during the bench trial, defendants
Wynn, Beverly, Gilmore, Snider, Hendrix, and Russell moved for judg‐
ment as a matter of law in their favor. The district court granted that mo‐
tion as to Wynn, Snider, and Russell, leaving Brown, Hendrix, Snyder, and
Gilmore as the remaining defendants below.
No. 15‐3334 15
The district court noted that although it was “greatly dis‐
turbed” by the length of time Isby has spent in administrative
segregation, his continued placement is “a result of his own
refusal to cooperate in any way with prison officials in efforts
to transition him into the general housing population.” The
court recognized that Isby “cannot be punished forever for
killing a canine and attacking prison officers in 1990,” but
nonetheless determined that the prison’s insistence that Isby
participate in a prison‐mandated transition program was “not
unreasonable.” Because “no case under similar circumstances
where duration alone, coupled with a prisoner’s refusal to
participate in correctional programming, supported a finding
of a constitutional violation,” the district court found no vio‐
lation of Isby’s Eighth Amendment rights.
On appeal, Isby again sought and was granted leave to
proceed in forma pauperis. On February 3, 2017, after briefing
was completed and only five days before oral argument, an‐
other panel of this Court dismissed a separate appeal by Isby
in a different case, in which Isby had contended that prison
officials burdened his religious exercise by failing to serve
him kosher food. See Isby‐Israel v. Lemmon, No. 16‐2697, 2017
WL 465670 (7th Cir. Feb. 3, 2017). The panel in Isby‐Israel ob‐
served that Isby “knew [from the dismissal of one of his ear‐
lier actions] that he had already accumulated three ‘strikes’
for filing frivolous suits or appeals,” and that he thus had to
pay the full filing fee upfront. See id. at *1. The Isby‐Israel panel
concluded that Isby’s withholding of his three‐strikes status
was deceptive and dismissed that appeal, ordering him to pay
all fees in this Court and in the district court and directing the
clerks of federal courts in this Circuit to return as unfiled any
papers submitted by him or on his behalf until full payment
had been made. Id. at *2.
16 No. 15‐3334
Three days later, defendants‐appellees moved to dismiss
this appeal, contending that “[t]he facts and circumstances in
this appeal are nearly identical [to those of Isby‐Israel]”; noting
several other occasions on which Isby had been told by fed‐
eral judges that he had “struck out”; and characterizing Isby
as having deceived the district court. We took their motion
with the case for resolution following oral argument.
II. Discussion
A. Motion to Dismiss the Appeal
We first consider whether to dismiss this appeal based on
Isby’s failure to alert the court to his three strikes and to pay
the requisite filing fees. Under the PLRA, prisoners who have
accrued three “strikes” from filing actions or appeals dis‐
missed as frivolous are barred from bringing another action
in federal court without prepayment of fees. See 28 U.S.C.
§ 1915(g). The law of our Circuit requires such litigants to dis‐
close to the court the fact that they have “struck out” and to
pay all fees upfront, or risk dismissal of their case as a sanc‐
tion for misconduct. See, e.g., Gay v. Chandra, 682 F.3d 590, 595–
96 (7th Cir. 2012); Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir.
2011); Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008).
Isby does not dispute that he was aware of his three strikes
when he initially brought this action in district court and
when he appealed. Nor could he credibly do so, given the
many other cases he has brought that were dismissed explic‐
itly on the basis of his litigation history. See, e.g., Isby v. Bennet,
No. 2:16‐cv‐00351‐LJM‐MJD, 2016 WL 5851603 (S.D. Ind. Oct.
6, 2016) (denying motion to alter or amend judgment dismiss‐
ing Isby’s case sua sponte when he sought leave to proceed in
No. 15‐3334 17
forma pauperis without acknowledging his three strikes); Is‐
rael v. Brown, No. 14‐2168 (7th Cir. Aug. 15, 2014) (order deny‐
ing motion for leave to proceed on appeal in forma pauperis
because “Isby‐Israel has accumulated three strikes”); Israel v.
Donahue, No. 3:06‐cv‐0809 WL, 2006 WL 3833390 (N.D. Ind.
Dec. 13, 2006) (noting that Isby had accumulated nine strikes
and, pursuant to § 1915(g), could not proceed in forma pau‐
peris); Israel v. Miller, No. 3:05‐CV‐300 RM, 2005 WL 1310535
(N.D. Ind. May 31, 2005) (same); cf. Israel v. Brown, 135 S. Ct.
2864 (2015) (“As petitioner has repeatedly abused this Court’s
process, the Clerk is directed not to accept any further peti‐
tions in noncriminal matters from petitioner unless the dock‐
eting fee … is paid ….”). He likewise does not dispute that he
failed to alert the district court of his three strikes. The issue
came to light, mere days before oral argument, only when an‐
other panel of this Court dismissed Isby’s appeal in a different
case, see Isby‐Israel, 2017 WL 465670, and defendants‐appellees
in this case followed up with their motion to dismiss.
Defendants‐appellees argue that we ought to dismiss
Isby’s appeal because he concealed his restricted status from
the district court when he sought pauper status below and on
appeal. See Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999) (“An
effort to bamboozle the court by seeking permission to pro‐
ceed in forma pauperis after a federal judge has held that
§ 1915(g) applies to a particular litigant will lead to immediate
termination of the suit.”). While there is an exception to
§ 1915(g) for prisoners who are “under imminent danger of
serious physical injury,” 28 U.S.C. § 1915(g), Isby conceded in
his response to defendants‐appellees’ motion to dismiss and
at oral argument that he had not pled any such danger. In‐
stead, Isby requests that we exercise our discretion under Fed‐
18 No. 15‐3334
eral Rule of Appellate Procedure 3(a)(2) and examine the mer‐
its of his claims, given the serious constitutional questions at
issue and the late stage at which defendants‐appellees raised
their § 1915(g) argument.
We note that defendants‐appellees do not argue that
§ 1915(g) imposes a jurisdictional bar to our hearing Isby’s ap‐
peal; they simply observe that we may sua sponte raise
§ 1915(g) as a basis for dismissal. By its terms, § 1915(g) does
not preclude a prisoner from bringing suit in federal court en‐
tirely; rather, the prisoner may either prepay in full all filing
fees or make a showing of imminent danger of serious physi‐
cal injury in order to proceed with a federal suit. See, e.g., Ab‐
dul‐Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (“It is
important to note that § 1915(g) does not block a prisoner’s
access to the federal courts. It only denies the prisoner the
privilege of filing before he has acquired the necessary filing
fee.”). We have never referred to the three‐strikes provision as
a jurisdictional bar, instead treating it as one of the many pro‐
cedural constraints imposed by the PLRA. See United States v.
Antonelli, 371 F.3d 360, 361 (7th Cir. 2004) (referring to three‐
strikes provision as one of several procedural constraints un‐
der the PLRA); cf. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)
(explaining that the PLRA “exhaustion requirement is not ju‐
risdictional”) (citation omitted). To avoid any ambiguity, we
now explicitly join our sister circuits in holding that the re‐
quirements of the PLRA’s three‐strikes provision are proce‐
dural, and not jurisdictional, in nature. See Lisenby v. Lear, 674
F.3d 259, 263 (4th Cir. 2012); Lloyd v. Benton, 686 F.3d 1225,
1227–28 (11th Cir. 2012); Dubuc v. Johnson, 314 F.3d 1205, 1210
(10th Cir. 2003) (“[section] 1915(g)’s provisions are not juris‐
dictional in nature but contain a condition precedent which
prevents a review of the merits of a three‐strikes prisoner‐
No. 15‐3334 19
plaintiff’s claims, except under extraordinary circumstances,
until the prisoner has prepaid the applicable fees”).
As Isby’s three strikes do not bar us from hearing his ap‐
peal, we may consider whether to exercise our discretion to
reach the merits of Isby’s case. See Fed. R. App. P. 3(a)(2) (“An
appellant’s failure to take any step other than the timely filing
of a notice of appeal does not affect the validity of the appeal,
but is ground only for the court of appeals to act as it consid‐
ers appropriate, including dismissing the appeal.”); cf.
Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (“Because
the rule [requiring immigration petitioners to exhaust all ad‐
ministrative remedies before seeking judicial review] is non‐
jurisdictional, it is subject to waiver, forfeiture, and other dis‐
cretionary considerations.”). Isby points us to Garcia v. Silbert,
in which the Tenth Circuit elected to reach the merits of a
plaintiff‐prisoner’s case, notwithstanding the fact that
§ 1915(g) applied and he had not alleged imminent harm, so
long as the plaintiff paid in full the filing fees owed to the
court. See 141 F.3d 1415, 1417 n.1 (10th Cir. 1998); see also Smith
v. Veterans Admin., 636 F.3d 1306, 1309–10 (10th Cir. 2011) (“we
have long recognized that we retain discretion to ignore the
three‐strikes rule and reach the merits of an appeal”) (citation
omitted). Isby encourages us to adopt the same approach in
the case at hand, and his appointed counsel has offered to pay
all of the fees due in this action, citing to the Illinois Rules of
Professional Responsibility. See Ill. R. Prof. Responsibility
1.8(e)(2) (allowing lawyers to pay court costs and litigation
expenses on behalf of an indigent client); see also Ind. R. Prof.
Conduct 1.8(e)(2) (same). Defendants‐appellees distinguish
Garcia, however, emphasizing that the prisoner in that case
had never been told by a federal judge that he had struck out,
nor had the Tenth Circuit held that prisoners to whom
20 No. 15‐3334
§ 1915(g) applies have a duty to alert the court to their three‐
strikes status. Defendants‐appellees cite to Sloan, in which we
declined to provide the prisoner who had struck out an op‐
portunity to pay docketing and filing fees because he had
“committed a fraud on the federal judiciary.” 181 F.3d at 859;
see also id. (“A litigant who follows frivolous litigation with
fraud has no claim to a tender reception.”).
Isby’s deception by omission is certainly not lost on us,
and we agree with defendants‐appellees that Isby’s counsel’s
payment of all fees owed to this Court and the district court
does not remedy his fraud. However, we have recognized the
possibility of a lawyer paying for a prisoner’s filing fee as a
viable option under § 1915(g)—albeit in the context of bor‐
rowing the fee from one’s attorney with the promise of reim‐
bursement under 42 U.S.C. § 1988. See Lewis v. Sullivan, 279
F.3d 526, 530 (7th Cir. 2002). And we agree with Isby that the
length of his placement in administrative segregation impli‐
cates serious constitutional concerns. Given the foregoing,
and the fact that defendants‐appellees raised the § 1915(g) is‐
sue only two days before oral argument, we deny the motion
to dismiss, exercise our discretion to consider the merits of
Isby’s claims, and will accept Isby’s counsel’s payment of his
fees. That said, we caution future litigants to whom § 1915(g)
applies that our course of action in this case is the exception,
not the norm, and our holdings in Sloan, Ammons, and so forth
remain intact. Restricted filers must still alert the court to their
three‐strikes status or risk dismissal and termination of their
suits “not only for lack of payment but also as a sanction for
misconduct.” Ammons, 547 F.3d at 725 (citation omitted).
No. 15‐3334 21
B. Eighth Amendment Claim
We now turn to Isby’s appeal from the district court’s ver‐
dict on his Eighth Amendment claim. We review the court’s
legal conclusions de novo and its factual findings for clear er‐
ror, see, e.g., Ernst v. City of Chi., 837 F.3d 788, 795–96 (7th Cir.
2016) (citation omitted), and certain mixed questions of law
and fact concerning constitutional issues may be reviewed de
novo, see Dean Foods Co. v. Brancel, 187 F.3d 609, 616–17 (7th
Cir. 1999) (citation omitted).
In cases involving the conditions of confinement in a
prison, two elements are required to establish a violation of
the Eighth Amendment’s prohibition against cruel and unu‐
sual punishment: first, an objective showing that the condi‐
tions are sufficiently serious—i.e., that they deny the inmate
“the minimal civilized measure of life’s necessities,” Rhodes v.
Chapman, 452 U.S. 337, 347 (1981), creating an excessive risk
to the inmate’s health and safety—and second, a subjective
showing of a defendant’s culpable state of mind. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). We have held that “pro‐
longed confinement in administrative segregation may con‐
stitute a violation of the Eighth Amendment … depending on
the duration and nature of the segregation and whether there
were feasible alternatives to that confinement.” Rice ex rel. Rice
v. Corr. Med. Servs., 675 F.3d 650, 666 (7th Cir. 2012) (citing
Walker v. Shansky, 28 F.3d 666, 673 (7th Cir. 1994)); see also Mer‐
iwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
We agree with the district court that Isby’s Eighth Amend‐
ment claim fails on the objective element. Isby raises a number
of complaints about the SCU relating to the lighting, food,
temperatures, sleeping arrangements, the restricted time for
showers and exercise, and so forth. He claims that the district
22 No. 15‐3334
court erred by analyzing each of these conditions in isolation,
rather than in totality. However, the court’s order made clear:
“Even having considered the total effect of Mr. Isby[]’s cir‐
cumstances, … they do not rise to the level of extreme depri‐
vation of basic human needs required to satisfy Eighth
Amendment standards.” Given our extensive case law reject‐
ing Eighth Amendment claims based on similar conditions of
confinement, we cannot say that the district court’s conclusion
on this matter constituted error. See, e.g., Davenport v. De‐
Robertis, 844 F.2d 1310, 1315 (7th Cir. 1988) (observing that at
least five hours per week of exercise outside cell may be nec‐
essary to avoid constitutional issues); Vasquez v. Frank, 290 F.
App’x 927, 929 (7th Cir. 2008) (“24‐hour lighting involving a
single, 9‐watt fluorescent bulb does not objectively constitute
an extreme deprivation”) (citation and internal quotation
marks omitted);12 Williams v. Berge, 102 F. App’x 506, 507 (7th
Cir. 2004) (“Prisoners have a right to adequate food, but not
to food that is tasty or even appetizing.”) (citing, inter alia,
Lunsford v. Bennett, 17 F.3d 1574, 1578 (7th Cir. 1994)); Bono v.
Saxbe, 620 F.2d 609, 613–14 (7th Cir. 1980) (“[T]he segregated
area was not overcrowded or unsanitary. Inmates had some
reading materials and an opportunity to exercise. ‘Seconds’ at
meals were not available and food was occasionally cold, but
12 Isby cites to Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996), in which the
Ninth Circuit held that summary judgment was inappropriate where an
inmate alleged that large fluorescent lights kept his cell constantly illumi‐
nated and caused sleeping issues and other mental and psychological
problems. See id. at 1090–91. Here, however, the district court weighed all
available evidence at trial and found that Isby was allowed to cover his
eyes with clothes or towels if the light disturbed him. And, as defendants
point out, the lights in Keenan involved “large fluorescent lights,” not five‐
to‐nine‐watt bulbs.
No. 15‐3334 23
it was the same food as that served to the general prison pop‐
ulation…. Inactivity, lack of companionship and a low level of
intellectual stimulation do not constitute cruel and unusual
punishment even if they continue for an indefinite period of
time ….”); Meriwether, 821 F.2d at 415 (“[C]onditions are not
unconstitutional simply because they are harsh and restric‐
tive; such conditions are part of the penalty that criminal of‐
fenders pay for their offenses against society…. [T]he Consti‐
tution does not mandate that prisons be comfortable ….”) (in‐
ternal citation and quotation marks omitted); see also Hosna v.
Groose, 80 F.3d 298, 306 (8th Cir. 1996) (no violation for weekly
outdoor recreation in prison yard totaling three hours); cf.
Hardaway v. Meyerhoff, 734 F.3d 740, 744–45 (7th Cir. 2013) (no
atypical and significant hardship violating the Fourteenth
Amendment’s Due Process Clause where access to showers
was only weekly).
Moreover, although Isby points out that “[s]ome condi‐
tions of confinement may establish an Eighth Amendment vi‐
olation in combination when each would not do so alone,”
this occurs “only when they have a mutually enforcing effect
that produces the deprivation of a single, identifiable human
need such as food, warmth, or exercise.” Wilson v. Seiter, 501
U.S. 294, 304 (1991) (providing example of low cell tempera‐
ture at night combined with failure to issue blankets) (cita‐
tions and internal quotation marks omitted). While “the
length of confinement cannot be ignored in deciding whether
the confinement meets constitutional standards,” Hutto v. Fin‐
ney, 437 U.S. 678, 686 (1978), we agree with the district court
that there is no evidence of serious physical, mental, or psy‐
chological harm to Isby caused by the conditions of the SCU
24 No. 15‐3334
or the duration of Isby’s segregation.13 It’s true that Isby testi‐
fied to feeling angry and dehumanized in isolation, but he
generally stated that he was “alright” and declined opportu‐
nities to speak with mental‐health practitioners, engage in
counseling, or otherwise discuss or attempt to alleviate these
circumstances. See Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir.
2001) (“It is telling that no credible evidence was presented of
any physical or psychological harm to the plaintiff as a result
of his protracted confinement in the segregation unit ….”).
Without some egregious deprivation, see, e.g., Walker, 28 F.3d
at 672–73 (possible Eighth Amendment violation stemming
from prolonged segregation while being denied water for pe‐
riods of up to one week, given inadequate time to exercise,
and subjected to physical abuse), Isby’s complaints about the
conditions of his confinement fall short.
Moreover, “[o]bviously influencing whether prolonged
segregation constitutes cruel and unusual punishment is the
existence of feasible alternatives.” Meriwether, 821 F.2d at 417.
As the district court noted, “[t]his [case] presents a somewhat
unique circumstance where feasible alternatives—the New
Castle transition program, the ACT program—do exist, but
they are alternatives that reasonably require Mr. Isby[] to co‐
operate, and he has steadfastly refused to do so.” Isby takes
issue with what he characterizes as the district court’s overre‐
liance on the existence of these IDOC programs in denying his
Eighth Amendment claim. He notes that the district court
cited nothing in support of its assertion that an Eighth
Amendment violation may be nullified because the inmate
13 But see Kervin v. Barnes, 787 F.3d 833, 837 (7th Cir. 2015) (“The seri‐
ous psychological consequences of … quasi‐solitary imprisonment have
been documented.”) (collecting sources).
No. 15‐3334 25
could take steps to reduce the harms being inflicted. How‐
ever, numerous cases support this very proposition. See, e.g.,
Freeman v. Berge, 441 F.3d 543, 547 (7th Cir. 2006) (no Eighth
Amendment violation where “to an overwhelming degree
Freeman’s food deprivation was self‐inflicted [because he re‐
fused to wear pants while eating], … and the record contains
no evidence that he experienced real suffering … or any last‐
ing detrimental health consequences”); Rodriguez v. Briley, 403
F.3d 952, 952–53 (7th Cir. 2005) (“deliberate noncompliance
with a valid rule does not convert the consequences that flow
automatically from that noncompliance into punishment….
As soon as Rodriguez puts his belongings in the storage box,
he can leave his cell and go to the cafeteria…. [B]y failing to
comply with a reasonable condition … , and as a result miss‐
ing out on meals, Rodriguez punished himself.”); Sostre v.
McGinnis, 442 F.2d 178, 187, 193–94 (2d Cir. 1971) (no Eighth
Amendment violation where officials testified that prisoner
could have returned to the general population “either by suc‐
cessful participation in group therapy or by agreeing to live
by the rules of the prison”), overruling on other grounds recog‐
nized by, e.g., Davidson v. Scully, 114 F.3d 12 (2d Cir. 1997).14
14 It is true that there is no guarantee that participating in the IDOC
self‐help programs would necessarily lead to Isby’s return to the general
population (unlike compliance with the prison rules at issue in Rodriguez
or Freeman, or the explicit testimony by prison officials in Sostre), or that
program participation is a necessary predicate to being released from ad‐
ministrative segregation. And there was some dispute as to the extent to
which Isby was aware of the degree to which an IDOC program was a
necessary predicate to his being released from the SCU. Regardless, the
district court’s factual assessments of these programs do not strike us as
clear error, and, given the lack of evidence of egregious conditions in the
26 No. 15‐3334
While, as a personal matter, we (like the district court) find
the length of Isby’s confinement greatly disturbing, see, e.g.,
Davis v. Ayala, 135 S. Ct. 2187, 2208–10 (Kennedy, J., concur‐
ring) (discussing “[t]he human toll wrought by extended
terms of isolation”), reh’g denied, 136 S. Ct. 14 (2015), we agree
that under the law as it currently stands, Isby has not made
out an Eighth Amendment violation.
C. Fourteenth Amendment Claim
We review the district court’s grant of summary judgment
on Isby’s due process claim de novo, construing all facts and
drawing all reasonable inferences in Isby’s favor. See, e.g., Col‐
lins v. Al‐Shami, 851 F.3d 727, 730–31 (7th Cir. 2017) (citation
omitted). Summary judgment is appropriate if the movant
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).
The Due Process Clause of the Fourteenth Amendment
applies only to deprivations of life, liberty, and property.
“Otherwise states are free to act summarily.” Marion v. Radtke,
641 F.3d 874, 875 (7th Cir. 2011) (per curiam). “We undertake
a two‐part analysis in procedural due‐process cases: first, we
determine whether the plaintiff was deprived of a protected
interest; if so, we determine what process was due under the
circumstances.” Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668,
673 (7th Cir. 2016) (citations omitted). Prisoners do not have a
constitutional right to remain in the general population, see,
e.g., Sandin v. Conner, 515 U.S. 472, 480 (1995) (“transfer to less
amenable quarters for nonpunitive reasons [is] ‘ordinarily
SCU or serious suffering on Isby’s part, we affirm the court’s verdict on
Isby’s Eighth Amendment claim.
No. 15‐3334 27
contemplated by a prison sentence’” (quoting Hewitt v. Helms,
459 U.S. 460, 468 (1983))); but “both the duration and the con‐
ditions of the segregation must be considered” in determining
whether due process is implicated, Marion v. Columbia Corr.
Inst., 559 F.3d 693, 698 (7th Cir. 2009) (citation omitted).
The district court concluded that, “[g]iven the length of
time Isby[] has been confined in administrative segregation,
… and accepting [his] undisputed sworn statements concern‐
ing the conditions of his confinement as true for purposes of
the summary judgment motion, … a due process liberty is at
stake.” Defendants‐appellees sensibly do not contest the con‐
clusion that the extraordinary length of Isby’s segregation in
the SCU implicates his due process rights. See, e.g., Harris v.
Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (“Harris has a cog‐
nizable liberty interest due to the atypical [eight‐year] dura‐
tion of his administrative segregation”). They claim, however,
that the reviews that Isby receives every thirty days are suffi‐
cient for due process.
The Supreme Court held in Hewitt that the Due Process
Clause mandates that prison officials periodically review
whether an inmate placed in administrative segregation con‐
tinues to pose a threat. 459 U.S. at 477 n.9, abrogated in part on
other grounds by Sandin, 515 U.S. 472. The Court recognized
that “lawfully incarcerated persons retain only a narrow
range of protected liberty interests,” and that “broad discre‐
tionary authority is necessary because the administration of a
prison is at best an extraordinarily difficult undertaking.” Id.
at 467 (citation and internal quotation marks omitted). The
Court then concluded that since “a prison’s internal security
is … a matter normally left to the discretion of prison admin‐
istrators,” id. at 474 (citation omitted), elaborate procedural
28 No. 15‐3334
safeguards like an adversary proceeding were unnecessary,
id. at 474–75. Thus, although “administrative segregation may
not be used as a pretext for indefinite confinement of an in‐
mate,” the periodic review of the confinement of such inmates
required to meet due process “will not necessarily require
that prison officials permit the submission of any additional
evidence or statements.” Id. at 477 n.9. Rather:
The decision whether a prisoner remains a secu‐
rity risk will be based on facts relating to a par‐
ticular prisoner—which will have been ascer‐
tained when determining [whether] to confine
the inmate to administrative segregation—and
on the officials’ general knowledge of prison
conditions and tensions, which are singularly
unsuited for “proof” in any highly structured
manner…. [T]he ongoing task of operating the
institution will require the prison officials to
consider a wide range of administrative consid‐
erations.
Id. As the district court here rightly explained, we and other
circuits have interpreted Hewitt as entitling inmates to an “in‐
formal and nonadversary” periodic review (the frequency of
which is committed to the discretion of the prison officials)
that keeps administrative segregation from becoming a pre‐
text for indefinite confinement. Westefer v. Neal, 682 F.3d 679,
684–86 (7th Cir. 2012) (dealing with transfers to supermax
prison, where inmates were held in either disciplinary or ad‐
ministrative segregation) (citations omitted); see also Smith v.
Shettle, 946 F.2d 1250, 1254 (7th Cir. 1991); Black v. Parke, 4 F.3d
442, 448 (6th Cir. 1993) (“inmates in segregation are entitled
No. 15‐3334 29
only to minimal procedural process, so long as that process is
not pretextual”).
Isby takes issue with the perfunctory nature of his thirty‐
day reviews, emphasizing that, despite the amount of time
that has passed since the 1990 incident,15 the duration of his
confinement in the SCU, and his long stretches without disci‐
plinary charges, he receives the same two‐line decision at
every review. To evaluate Wabash Valley’s procedures in light
of Hewitt, we consider the three Mathews v. Eldridge factors: (1)
the private interest (that is, Isby’s interest) affected by a gov‐
ernmental decision, (2) the governmental interests at stake,
and (3) “the risk of an erroneous deprivation of [the private]
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards.” 424
U.S. 319, 335.
With respect to the first factor, Isby’s private interest is
considerably lessened because of his status as an inmate. See,
e.g., Hewitt, 459 U.S. at 473 (“[The prisoner] was merely trans‐
ferred from one extremely restricted environment to an even
more confined situation”). However, whereas the inmate in
Hewitt spent less than two months in segregation awaiting a
hearing, Isby has spent over ten years there, and counting.
The extended, indefinite length of his placement in the SCU
tips the scale in his favor on this prong of the analysis. See
15 Defendants‐appellees claim that the trial transcript does not sup‐
port Isby’s assertion that the 1990 incident is the sole reason for his place‐
ment in the SCU. But Lieutenant Nicholson did testify that he never rec‐
ommended Isby for release from the SCU “[b]ecause he killed a … dog
and stabbed two officers.” Nicholson also testified, however, that he was
not the sole decisionmaker, and Isby himself stated that he was eventually
told that he was in the SCU because of his “conduct history” generally.
30 No. 15‐3334
Proctor v. LeClaire, 846 F.3d 597, 610 (2d Cir. 2017) (“Proctor’s
interest in avoiding an indefinite Ad Seg term is surely sub‐
stantial, more so than [the inmate in Hewitt’s] interest in
avoiding a temporary Ad Seg term awaiting a hearing.”);
Mims v. Shapp, 744 F.2d 946, 951–52 (3d Cir. 1984) (concluding
that inmate facing “potentially limitless” term in administra‐
tive segregation has “a more significant liberty interest for
due process analysis than that attributed to the prisoner in
Hewitt”).
Next, we consider the government’s interests, which are
substantial. Maintaining institutional security and safety are
crucial considerations in the management of a prison, and, to
the extent that an inmate continues to pose a threat to himself
or others, ongoing segregation may well be justified. See, e.g.,
Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Prison officials must
be free to take appropriate action to ensure the safety of in‐
mates and corrections personnel and to prevent escape or un‐
authorized entry.”). Obviously, however, the validity of the
government interest continues only so long as the inmate con‐
tinues to pose a safety or security risk. Mims, 744 F.2d at 953;
see also id. (“the governmental interest involved in a good faith
decision to subject a prisoner to administrative segregation
may fluctuate with the passage of time and change of circum‐
stances”). It is for this very reason that the Hewitt Court deter‐
mined that periodic review of administrative segregation de‐
cisions is necessary. See id. at 953–54; see also Smith, 946 F.2d at
1254–55 (“[inmate’s period of administrative segregation,
which was not fixed in advance,] is an indefinite term, keyed
to changing conditions, so there has to be some mechanism
No. 15‐3334 31
for determining whether change has occurred”).16 And again,
whereas the inmate in Hewitt was confined to administrative
segregation pending the completion of investigations into his
role in a prison riot and a hearing on charges against him, the
record here indicates that Isby has been held indefinitely fol‐
lowing the 1990 incident and other past behavioral issues.17
With no potential end date on Isby’s segregation, we confront
the third of the Mathews factors and note that the boilerplate
output of each review seems all the more concerning.
Defendants‐appellees claim that “[t]here is no mystery as
to why Isby remains in the SCU,” and the undisputed‐facts
portion of the district court’s summary judgment order states
that Isby has been kept in segregation because of his extensive
16 Defendants‐appellees argue that Smith held that the thirty‐day re‐
view process at issue in this case passed constitutional muster. But what
we held in Smith was that the prison officials’ uncontroverted affidavits
established that the inmates received notice and an opportunity to be
heard on the front end as well as sufficiently frequent periodic reviews.
See 946 F.2d at 1254. The adequacy or potential pretextual nature of those
periodic reviews was thus not at issue in that case.
17 In response to a question from the district court during the bench
trial, defendant Jerry Snyder, the Unit Team Manager for the SCU at Wa‐
bash Valley, confirmed that he did not recall any conduct by Isby that
prompted his move from the general population to the SCU. And even
accepting the district court’s findings of fact on this issue and the trial tes‐
timony that Isby was “extremely argumentative and disrespectful,” our
own case law warns that long stretches of solitary confinement may be too
strict of a punishment for mere behavioral problems. See Kervin, 787 F.3d
at 837 (reminding prison officials and judges “to be alert for the potentially
serious adverse consequences of protracted segregation as punishment for
misbehavior in prison, especially … nonviolent misbehavior” like repeat‐
edly talking back to prison guards).
32 No. 15‐3334
conduct‐report history, past behavior, violent tendencies, ina‐
bility to cooperate with Wabash Valley staff, and other factors.
However, the first two items in this list are limited to occur‐
rences in the past, and it is unclear whether the other three
items occurred in the distant or recent past as opposed to cur‐
rently affecting Isby’s readiness to return to the general prison
population. Meanwhile, Lieutenant Nicholson highlighted
the 1990 incident as the main reason for Isby’s continued
placement in segregation. If it is in fact the case, as defend‐
ants‐appellees suggest, that Isby is still being held in admin‐
istrative segregation because of his ongoing refusal to cooper‐
ate with staff and to participate in any of the self‐help pro‐
grams, then it seems easy enough to include that explanation
in the output of his thirty‐day reviews. See Toevs v. Reid, 685
F.3d 903, 913–14 (10th Cir. 2012) (“if the relevant circum‐
stances truly have not changed, that can easily be stated, ra‐
ther than just relying on a meaningless, repetitive, and rote
response”) (citation omitted). Even one or two edits or addi‐
tions along these lines could assuage our concerns and pro‐
vide helpful notice to Isby as to the reasons for his placement
and how he could get out. While defendants‐appellees claim
that Isby is “well aware that he has an avenue for release”
through the self‐help programs, it is uncertain that participa‐
tion in the IDOC programs would necessarily result in trans‐
fer or release from the SCU, and the parties dispute the extent
to which such information was communicated to Isby.18
18 The district court’s bench‐trial order on Isby’s Eighth Amendment
claim concluded that Isby had “avenues that he could take to lead him to
general population” (emphasis added), which “he simply has chosen not
to attempt.” But these conclusions do not necessarily bear on Isby’s due
process claim (i.e., as to whether the existing process was sufficient).
No. 15‐3334 33
Defendants‐appellees emphasize that the law does not re‐
quire that an inmate receive a statement of reasons for their
retention in administrative segregation. See Westefer, 682 F.3d
at 685–86. While such a statement of reasons may not be con‐
stitutionally required, however, under Hewitt, the periodic re‐
view must still be meaningful and non‐pretextual. Westefer,
682 F.3d at 686 (citing Hewitt, 459 U.S. at 477 n.9); see also Toevs,
685 F.3d at 912 (“The [periodic] review need not be extensive,
… [b]ut the review must be meaningful; it cannot be a sham
or a pretext.”) (citations omitted); Mims, 744 F.2d at 954 (warn‐
ing that periodic reviews must “not become simply a sham”).
The Third Circuit has held that “a meaningful review … is one
that evaluates the prisoner’s current circumstances and future
prospects, and, considering the reason(s) for his confinement
to the program, determines whether that placement remains
warranted.” Toevs, 685 F.3d at 913 (internal quotation marks
omitted).19 On the record at summary judgment, there is a
genuine dispute of fact as to whether the thirty‐day reviews
19 The Third Circuit also elaborated that “[w]here … the goal of the
placement is solely and exclusively to encourage a prisoner to improve his
future behavior, the review should provide a statement of reasons, which
will often serve as a guide for future behavior (i.e., by giving the prisoner
some idea of how he might progress toward a more favorable place‐
ment).” Toevs, 685 F.3d at 913; cf. Wilkinson v. Austin, 545 U.S. 209 (2005)
(noting that Ohio’s requirement that a decisionmaker provide a “short
statement of reasons … guards against arbitrary decisionmaking while
also … serv[ing] as a guide for future behavior”) (citation omitted). The
defendants‐appellees argue that even if they did not provide official notice
or statements of reasons, Isby was aware that he needed to improve his
behavior and participate in the IDOC self‐help programs in order to be
eligible for transfer. However, Isby argues that there was no guarantee
that participation would lead to such a transfer and that others were
moved out of the SCU without participation, which raises issues of fact.
34 No. 15‐3334
take into account any updated circumstances in evaluating
the need for continued confinement, given the length of Isby’s
segregation, his long stretches of time without any discipli‐
nary issues, and the rote repetition of the same two boilerplate
sentences following each review. And while submission of
new evidence or a full hearing may not be necessary to meet
the requirements of due process under Hewitt, an actual re‐
view—i.e., one open to the possibility of a different outcome—
certainly is. See, e.g., Proctor, 846 F.3d at 611 (“It is inherent in
Hewitt’s use of the term ‘periodic’ that ongoing Ad Seg re‐
views may not be frozen in time, forever rehashing infor‐
mation addressed at the inmate’s initial Ad Seg determina‐
tion…. prison officials must look to the inmate’s present and
future behavior and consider new events to some degree to
ensure that prison officials do not use past events alone to jus‐
tify indefinite confinement.”).
Several other circuits have also criticized review proce‐
dures like those we have here. See, e.g., Incumaa v. Stirling, 791
F.3d 517, 534 (4th Cir. 2015) (“The ICC has merely rubber‐
stamped Appellant’s incarceration in [solitary confinement]
(figuratively and sometimes literally), listing in rote repetition
the same justification every 30 days…. Indeed, the ICC’s on‐
going classification of Appellant is especially wanting for ex‐
planation in light of his nearly perfect disciplinary record
while in security detention.”) (citations and internal quota‐
tions omitted); Selby v. Caruso, 734 F.3d 554, 559–60 (6th Cir.
2013) (holding that factual issue existed as to whether peri‐
odic administrative segregation reviews were meaningful
and supported by “some evidence”); Toevs, 685 F.3d at 914–15
(concluding that periodic reviews that were not “meaningful”
violated prisoner’s due process rights); Kelly v. Brewer, 525
No. 15‐3334 35
F.2d 394, 399–402 (8th Cir. 1975) (remanding for further pro‐
ceedings and directing warden to evaluate prisoners’ place‐
ments based on “valid” present and future justifications ra‐
ther than punishing an inmate for past conduct). Most re‐
cently, the Second Circuit held in Proctor that an inmate con‐
fined in the SHU for twenty‐two years had raised triable is‐
sues of fact as to his due‐process claim. Proctor, 846 F.3d at 612.
Like Isby, Proctor’s time in prison, was also “marked by vio‐
lence and dangerous defiance of the law,” which led to Proc‐
tor being placed in disciplinary segregation in the SHU. Id. at
602. Despite his behavior improving later on,20 he was re‐
tained in administrative segregation in the SHU.21 New York
provided SHU inmates with periodic reviews every sixty
days until they were returned to the general population. After
explaining that meaningful periodic reviews must include on‐
going evaluation of whether an inmate’s continued segrega‐
tion is justified, the Second Circuit noted that testimony from
prison officials indicated that, based on Proctor’s past con‐
duct, they had no intention of releasing him. Id. at 611–12. The
court explained that it was insufficient for officials merely to
go through the motions of conducting a review when they
had developed a pre‐review conclusion that the inmate would
20 The Second Circuit noted that, “in the main, Proctor’s behavior [in
administrative segregation] has remained positive,” that he “has gone
long stretches—including one period of almost four years—without any
disciplinary reports,” and that he “received just one disciplinary report
between December 2011 and the close of the record in this case.” 846 F.3d
at 603.
21 At the hearing held shortly thereafter, the hearing officer found that
Proctor posed a threat to the prison based on his criminal history and mis‐
behavior, including his past escape and his bad behavior during his first
years in disciplinary segregation. 846 F.3d at 603.
36 No. 15‐3334
remain in solitary confinement no matter what the evidence
showed. See id. at 611 (“The state may not use Ad Seg as a
charade in the name of prison security to mask indefinite pun‐
ishment for past transgressions.”).
Given the long stretches of time during which Isby had no
serious disciplinary problems, as well as the conflicting evi‐
dence as to the reasons for his ongoing segregation, Isby has
raised triable issues of material fact regarding whether his re‐
views were meaningful or pretextual. See id. at 610 (“Review
with a pre‐ordained outcome is tantamount to no review at
all.”). Here, the repeated issuance of the same uninformative
language (without any updates or explanation of why contin‐
ued placement is necessary) coupled with the length of Isby’s
confinement, could cause a reasonable trier of fact to conclude
that Isby has been deprived of his liberty interest without due
process. Moreover, our concerns with the thirty‐day review
process bring us to the ninety‐day reviews, and the parties
and the district court agree there is a disputed issue of mate‐
rial fact in Isby’s case with respect to these more formal re‐
views. Further testimony and evidence at trial could clarify
the reasons for Isby’s ongoing segregation and convince a trier
of fact that his reviews were not pretextual. However, his due
process claim ought to have survived summary judgment.
D. Qualified Immunity
Because the district court found no violation under the
Fourteenth Amendment, it did not have to reach the question
of qualified immunity. We now consider whether summary
judgment on Isby’s due process claim was nonetheless war‐
ranted on that ground. See United States v. Flores‐Sandoval, 94
No. 15‐3334 37
F.3d 346, 349 (7th Cir. 1996) (explaining that we are free to af‐
firm “on any grounds found in the record, regardless of the
rationale employed by the district court”) (citation omitted).
In considering whether qualified immunity applies, we
must inquire: “(1) whether the facts, taken in the light most
favorable to the plaintiff, show that the defendant violated a
constitutional right; and (2) whether that constitutional right
was clearly established at the time of the alleged violation.”
Hernandez v. Cook Cty. Sheriff’s Office, 634 F.3d 906, 914 (7th Cir.
2011) (citation omitted). “To be clearly established at the time
of the challenged conduct, the right’s contours must be suffi‐
ciently clear that every reasonable official would have under‐
stood that what he is doing violates that right, and existing
precedent must have placed the statutory or constitutional
question beyond debate.” Gustafson v. Adkins, 803 F.3d 883,
891 (7th Cir. 2015) (citation omitted).
It is well established that whenever process is constitution‐
ally due, no matter the context, it must be granted in a mean‐
ingful manner. Cf. Armstrong v. Manzo, 380 U.S. 545, 552
(1965). That said, we must also be cautious about defining the
due process violation at issue here “at the appropriate level of
specificity.” Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016)
(citation omitted). There is no Seventh Circuit or Supreme
Court case establishing exactly that periodic reviews of ad‐
ministrative segregation like those at issue here violate due
process. “However, a case holding that the exact action in
question is unlawful is not necessary.” Alicea, 815 F.3d at 291
(citation omitted). After all, prison officials have been on no‐
tice since Hewitt that periodic reviews of administrative seg‐
regation are constitutionally required, and it is self‐evident
that they cannot be a sham.
38 No. 15‐3334
Although some appellate courts that have considered this
issue have concluded that qualified immunity applied, see,
e.g., Toevs, 685 F.3d at 916 (“we cannot conclude that the state
of the law from 2005 to 2009 gave defendants fair warning that
the [Quality of Life Level Program] review process [for pris‐
oners in administrative segregation] was not meaningful, or
that the lack of reviews at QLLP Levels 4 through 6 was a due‐
process violation”), in the case at hand, the various factual
disputes discussed above preclude summary judgment on the
basis of qualified immunity. See Selby, 734 F.3d at 560 (“When
no facts are in dispute, whether an official receives qualified
immunity is a question of law. But in this case, … facts are in
dispute, precluding summary judgment for the defendants.”)
(emphasis, citations, and internal quotation marks omitted);
Black, 4 F.3d at 450 (“[W]e cannot determine from the record
before the trial court whether the facts as to the kind and fre‐
quency of review given to Black are as he says they are or as
the defendants say they are. Therefore a genuine issue of fact
remains as to whether Black received the process required by
Hewitt. [S]ummary judgment on the grounds of qualified im‐
munity was not appropriate”). As Isby may be able to con‐
vince the trier of fact that defendants‐appellees have been de‐
liberately giving him meaningless “reviews,” without any in‐
tention of ever releasing him from the SCU, qualified immun‐
ity may not apply.
III. Conclusion
For the foregoing reasons, Isby is ordered to pay in full all
outstanding fees to this Court and the district court, and we
AFFIRM the district court on Isby’s Eighth Amendment claim
and REVERSE and REMAND on his Fourteenth Amendment
claim.