Ernest Porter v. Pennsylvania Department of Cor

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 18-3505
_____________

ERNEST PORTER,
Appellant

v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
JOHN E. WETZEL, Secretary for Department of
Corrections; ROBERT GILMORE; Super. for SCI Greene
_____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. Action No. 2-17-cv-000763)
Magistrate Judge: Hon. Maureen P. Kelly
______________

Argued October 22, 2019
______________

Before: GREENAWAY, JR., PORTER and COWEN, Circuit
Judges.

(Opinion Filed: September 1, 2020)
Bret Grote [Argued]
Abolitionist Law Center
P.O. Box 8654
Pittsburgh, PA 15221

Daniel M. Greenfield
Roderick & Solange MacArthur Justice Center/Northwestern
Pritzker School of Law
375 East Chicago Ave.
Chicago, IL 60611
Counsel for Appellant

Michael P. Doss
Sidley Austin LLP
One South Dearborn St.
Chicago, IL 60603
Counsel for Amicus Appellant

Laura Rovner
Student Law Office – Civil Rights Clinic University of
Denver College of Law
2255 E. Evans Ave., Suite 335
Denver, CO 80208
Counsel for Amicus Appellant

Daniel B. Mullen [Argued]
Kemal Alexander Mericli
Office of Attorney General
1251 Waterfront Place, Mezzanine Level
Pittsburgh, PA 1522
Counsel for Appellees

2
 ______________

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.

3
 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).

4
 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

1
The parties consented to the jurisdiction of the
Magistrate Judge. See Porter v. Penn. Dep’t of Corrs., 2:17-
cv-763, ECF Nos. 3, 17; see also 28 U.S.C. § 636(c).

5
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

6
 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

7
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

8
committed by a person acting under color of state law.” West
v. Atkins, 487 U.S. 42, 48 (1988) (citing Parrat v. Taylor, 451
U.S. 527, 535 (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 (2009)).

A. Procedural Due Process

Porter first argues that, according to our precedent in
Williams, Defendants have violated his procedural due process
rights by keeping him in solitary confinement for thirty-three
years without any regular, individualized determination that he
needs to be in solitary confinement, even though he has been
granted a resentencing hearing. We agree.

“The Fourteenth Amendment’s Due Process Clause
protects persons against deprivations of life, liberty, or
property . . . . A liberty interest may arise from the Constitution
itself, by reason of guarantees implicit in the word ‘liberty,’ or
it may arise from an expectation or interest created by state
laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (internal citations omitted). “To establish [a state-
created liberty interest under the Fourteenth Amendment] in
the conditions of confinement context, courts generally require

9
a showing that the alleged liberty interest is substantial. To rise
to the level of a liberty interest, the right alleged must confer
‘freedom from restraint which . . . imposes atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.’” Williams, 848 F.3d at 559 (quoting
Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997)) (alteration
and emphasis in original).

Williams governs Porter’s procedural due process
claim. In Williams, we held that inmates who have been
granted resentencing hearings have a due process liberty
interest in avoiding indefinite detention in solitary
confinement. Id. at 559–65. Given the scientific consensus on
the severe detrimental impacts of prolonged solitary
confinement, we decided that the plaintiffs’ indefinite
placements on death row constituted extreme deprivation and
that these conditions were atypical in comparison with
conditions in the general prison population. Id. We held that
the employees of the Pennsylvania Department of Corrections
(the “DOC”) had violated the plaintiffs’ procedural due
process rights by keeping them in solitary confinement after
their death sentences were vacated without any individualized
determinations that would justify such extreme deprivations.2
Id.

2
In Williams, we did not decide whether inmates who
have not been granted resentencing hearings and vacatur have
a procedural due process interest in avoiding continued solitary
confinement. See Williams, 848 F.3d at 552 n.2 (stating that
the Court “take[s] no position on whether any inherent risk
posed by inmates whose death sentences are still active and
viable is sufficient to raise a presumption that their continued
confinement on death row is justifiable.”). We need not do so

10
 The plaintiffs in Williams were, like Porter, originally
sentenced to death in Pennsylvania state court. They were
granted vacatur of their death sentences and resentencing
hearings on PCRA review. However, the Pennsylvania courts
denied their challenges to their underlying convictions. The
plaintiffs appealed those denials. Their resentencing hearings
were delayed while these appeals were pending. Because there
was a possibility that they could be resentenced to death, the
DOC kept the Williams plaintiffs in the CCU. This decision to
maintain their solitary confinement pending resentencing was
the basis for their procedural due process challenge.

Here, we are tasked with applying Williams. Porter’s
circumstances are analogous to those of the Williams plaintiffs.
He too received a resentencing hearing in post-conviction
review. Like the Williams plaintiffs, he appealed the district
court’s denial of relief on his guilt-phase habeas claims. His
resentencing has similarly been delayed pending resolution of
the appeals. Moreover, he has spent significantly more time in
solitary confinement than the Williams plaintiffs. He has spent
thirty-three years total in the CCU, sixteen of which were after
he was granted relief in the habeas proceedings.

We are mindful that there are some distinctions between
the Williams plaintiffs and Porter. In the view of Defendants,
the most significant difference is that the Commonwealth
appealed the District Court’s vacatur order; it did not do so in
the cases of the Williams plaintiffs. In addition, since Porter

today. Porter does not have an “active and viable” death
sentence; like the Williams plaintiffs, he has been granted
vacatur and a resentencing hearing but is languishing in
solitary confinement while other litigation is pending. Id.

11
was granted habeas relief in federal court (rather than through
PCRA proceedings in state court), an EDPA local rule stayed
the vacatur order pending the resolution of the appeals.

But we do not think that these differences distinguish
Porter for the purposes of his procedural due process rights. In
Williams, we specifically held that the procedural due process
right attaches for death row inmates whose sentences have
been “vacated,” which we defined as “situations where a
defendant has initially been sentenced to death, but has
subsequently been granted a new sentencing hearing.” Id. at
553 n.4. This describes Porter’s circumstances precisely: like
the Williams plaintiffs, Porter was initially sentenced to death,
but he has been granted a new sentencing hearing.

We are unconvinced by the Magistrate Judge’s reliance
on the Supreme Court’s articulation of the legal impact of a
stay in Nken v. Holder, 556 U.S. 418 (2009). In Nken, an
immigration case, the Court held that traditional stay factors
govern a court of appeals’ authority to stay an alien’s removal
pending judicial review. Explaining the distinction between a
stay and an injunction, the Court stated that “[a] stay does not
make time stand still, but does hold a ruling in abeyance to
allow an appellate court the time necessary to review it.” Id.
at 421. A stay pending appeal “temporarily suspend[s] the
source of the authority to act—the order or judgment in
question” and “suspend[s] judicial alteration of the status quo.”
Id. at 428–29.3

3
Our dissenting colleague characterizes our
disagreement with the Magistrate Judge’s reliance on the stay
as an “assertion that the habeas court’s stay of the vacatur order
accomplished nothing, and that Porter’s death sentence was

12
 That the order granting Porter vacatur and a
resentencing hearing is stayed does not mean that the order has
no legal import or that Porter currently has a viable death
sentence. Porter, like the Williams plaintiffs, is in limbo: he
may not be resentenced until his appeals are resolved.

Nor are we convinced by Defendants’ argument that the
Commonwealth’s appeal meaningfully distinguishes Porter’s
case. Pursuant to the EDPA Local Rule and the District
Court’s order, the vacatur and resentencing order would have
been stayed if either party appealed. In other words, if the
Commonwealth had decided not to appeal (as it did for the
Williams plaintiffs) but Porter decided to appeal his guilt-phase
claims, the order would still have been stayed. The
Commonwealth’s appeal did not result in the stay of the
vacatur order, and Defendants have not offered any other
reason why the Commonwealth’s appeal meaningfully
differentiates Porter’s case from Williams.

We do not see any other relevant distinguishing
features. In both cases, the plaintiffs could end up with an
active death sentence. The Williams plaintiffs could have been
resentenced to death in their resentencing hearings, at which
point the DOC would have returned them to the CCU. Indeed,

actually vacated.” Dissenting Op. at 5. Not so. The stay
certainly has legal effect: as a result of the stay, Porter cannot
be resentenced. But the stay does not mean that Porter, for
purposes of his procedural due process rights, is identical to
other death row inmates who have never received any relief
and have no imminent prospect of resentencing. Like the
Williams plaintiffs, Porter has received relief—that relief is
simply stayed pending appeal.

13
as described above, this was the Department’s argument for
keeping the Williams plaintiffs on death row: the Department
argued that it was not permitted to remove the plaintiffs from
death row until their death sentences had “actually been
modified,” which they had not, since it was possible that they
would again receive the death penalty in their resentencing
hearing. 949 F.3d at 557. We rejected that argument in
Williams. Like the Williams plaintiffs, Porter could ultimately
return to death row either as a result of his resentencing hearing
or if the Third Circuit reverses the grant of habeas relief. A
possible return to death row, therefore, does not distinguish
Porter from Williams.

Nor can the difference be that Porter’s resentencing has
been delayed while other litigation in his case remains pending,
for that was also true of the Williams plaintiffs. Their
resentencing hearings were delayed six and eight years
respectively during their appeals. The Commonwealth is
presented with the same prolonged uncertainty about Porter’s
ultimate sentence that it experienced with the Williams
plaintiffs. Nevertheless, extended delays and the attendant
uncertainty do not justify Porter’s continued solitary
confinement without review.

Nor have Defendants identified any penological need
for solitary confinement for Porter or inmates in Porter’s
position that do not apply to the Williams plaintiffs. In
particular, the Commonwealth’s stated interest in keeping
inmates with death sentences in solitary confinement because
they pose an increased safety risk is as applicable to the
Williams plaintiffs as to Porter. These inmates may or may not
end up back on death row after resentencing and/or disposition
of their appeals. If the possibility of death row means that they

14
have “nothing left to lose” and are therefore more dangerous,
that concern was as true of the Williams plaintiffs. On the flip
side, Porter is as likely as the Williams plaintiffs to be on good
behavior since he could be resentenced to a lesser penalty.

Finally, to the extent that Defendants contend that
Porter is responsible for the delays in his resentencing, we
squarely rejected such an argument in Williams. There too the
Commonwealth argued that, by filing their appeals, the
plaintiffs were responsible for their continued incarceration on
death row. We found this argument “both meritless and
disappointing. Plaintiffs’ exercise of their rights to appellate
review is simply irrelevant to our assessment of the
constitutionality of their conditions of confinement.”
Williams, 848 F.3d at 561 n.2. The same reasoning applies to
Porter’s decision to exercise his state PCRA rights in state
court. Porter’s exercise of his rights (and the Commonwealth’s
exercise of its right to appeal) do not bear on our procedural
due process analysis.

Our decision is thus a straightforward application of
Williams. As in Williams, Defendants must provide Porter
with “regular and meaningful review of [his] continued
placement on death row,” including “a statement of reasons for
the continued placement,” “meaningful opportunity to respond
to the reasons provided,” and a hearing. Williams, 848 F.3d at
576 (emphasis omitted).4

4
Porter makes an alternative claim that, even if
Williams does not apply, his individual term of solitary
confinement constitutes an atypical and significant hardship
that gives rise to a due process liberty interest regardless of the
status of his death sentence. Because we conclude that

15
 B. Eighth Amendment

Porter also argues that Defendants violated his Eighth
Amendment right to be free from cruel and unusual
punishment by subjecting him to solitary confinement for
thirty-three years. Notably, Porter is not making a broader
claim that the conditions for all death row inmates violate the
Eighth Amendment; he makes only an as-applied challenge
based on his own conditions of confinement.5

The Magistrate Judge denied Porter’s Eighth
Amendment claim on the ground that Porter had failed to
establish that “both Defendants were individually aware that
Porter suffered a substantial risk of harm and yet were
deliberately indifferent.” Porter, 2018 WL 5846747, at *14.
The Magistrate Judge found that Porter did not provide any

Williams squarely governs Porter’s case, we will not reach this
argument.
5
Our dissenting colleague takes issue with Porter’s
articulation of his Eighth Amendment claim and argues that
Porter is not, in fact, making an as-applied challenge, but is
rather repackaging his procedural due process claim.
Dissenting Op. at 12. But Porter clearly articulated the
duration and severity of his individual circumstances in
solitary confinement in his complaint. Moreover, at the time
of the drafting of the complaint, Porter was pro se, and “[t]he
obligation to liberally construe a pro se litigant’s pleadings is
well-established.” Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d
Cir. 2011). We are therefore unconvinced that his Eighth
Amendment claim is “analytically identical to his procedural
process claim.” Dissenting Op. at 13.

16
evidence of his “alleged mental decomposition” or that “either
of the Defendants were aware that the care afforded or
available was insufficient so as to place Porter at risk of further
decline.” Id. We disagree.

To determine whether prison officials have violated the
Eighth Amendment, we apply a two-prong test: (1) the
deprivation must be “objectively, sufficiently serious; a prison
official’s act or omission must result in the denial of the
minimal civilized measure of life’s necessities”; and (2) the
prison official must have been “deliberate[ly] indifferen[t] to
inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,
834 (1994) (internal citations and quotation marks omitted).
An official is deliberately indifferent if he “knows of and
disregards an excessive risk to inmate health or safety.” Id. at
837. Whether conditions constitute “cruel and unusual
punishment” is measured against “the evolving standards of
decency that mark the progress of a maturing society.” Estelle
v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles,
356 U.S. 86, 101 (1958)).

1. Whether Porter’s Deprivations Were Sufficiently
Serious

To satisfy the objective prong of this test “the inmate
must show that he is incarcerated under conditions posing a
substantial risk of serious harm.” Mammana v. Fed. Bureau of
Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting Farmer,
511 U.S. at 834). “The proof necessary to show that there was
a substantial risk of harm is less demanding than the proof
needed to show that there was a probable risk of harm.”
Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 227 (3d Cir.
2015).

17
 The Magistrate Judge did not apply the correct standard
here. The Magistrate Judge decided that Porter failed to satisfy
the objective prong in part because he did not offer evidence
that he had experienced an actual injury. See Porter, 2018 WL
5846747, at *14 (“[N]owhere in the record before this Court
has Porter provided any evidence whatsoever of his alleged
mental decomposition.”). But an inmate need not provide
evidence of actual injury. We have specifically held that the
inmate need only offer evidence that there was a “substantial
risk of serious harm.” Mammana, 934 F.3d at 373.

It is well established in both case law and scientific and
medical research that prolonged solitary confinement, like that
experienced by Porter, poses a substantial risk of serious
psychological and physical harm:

A comprehensive meta-analysis of the existing
literature on solitary confinement within and
beyond the criminal justice setting found that
“[t]he empirical record compels an unmistakable
conclusion: this experience is psychologically
painful, can be traumatic and harmful, and puts
many of those who have been subjected to it at
risk of long-term . . . damage.” Specifically,
based on an examination of a representative
sample of sensory deprivation studies, the
researchers found that virtually everyone
exposed to such conditions is affected in some
way. They further explained that “[t]here is not
a single study of solitary confinement wherein
non-voluntary confinement that lasted for longer
than 10 days failed to result in negative

18
psychological effects.” And as another
researcher elaborated, “all [individuals subjected
to solitary confinement] will . . . experience a
degree of stupor, difficulties with thinking and
concentration, obsessional thinking, agitation,
irritability, and difficulty tolerating external
stimuli.”

Anxiety and panic are common side effects.
Depression, post-traumatic stress disorder,
psychosis, hallucinations, paranoia,
claustrophobia, and suicidal ideation are also
frequent results. Additional studies included in
the aforementioned meta-analysis further
“underscored the importance of social contact
for the creation and maintenance of ‘self.’” In
other words, in the absence of interaction with
others, an individual’s very identity is at risk of
disintegration.

...

As if psychological damage was not enough, the
impact of the deprivation does not always stop
there. Physical harm can also result. Studies
have documented high rates of suicide and self-
mutilation amongst inmates who have been
subjected to solitary confinement. These
behaviors are believed to be maladaptive
mechanisms for dealing with the psychological
suffering that comes from isolation. In addition,
the lack of opportunity for free movement is
associated with more general physical

19
 deterioration. The constellations of symptoms
include dangerous weight loss, hypertension, and
heart abnormalities, as well as the aggravation of
pre-existing medical problems.

Williams, 848 F.3d at 566–68 (internal citations omitted)
(alterations in original); see also Brief of Amici Curiae
Professors and Practitioners of Psychiatry, Psychology, and
Medicine at 1 (“[S]olitary confinement causes substantial harm
to prisoners’ mental and physical health. For prisoners subject
to extreme lengths of solitary confinement, such as Appellant
Porter here, such harm is inevitable.”).

We have repeatedly recognized the severe effects of
prolonged solitary confinement, as have our sister circuits and
Justices of the Supreme Court. See Shoats v. Horn, 213 F.3d
140, 144 (3d Cir. 2000) (noting that a special assistant to the
Secretary of the Pennsylvania DOC would be concerned about
the psychological damage to an inmate after only 90 days of
solitary confinement); Palakovic v. Wetzel, 854 F.3d 209, 225
(3d Cir. 2017) (acknowledging the “robust body of legal and
scientific authority recognizing the devastating mental health
consequences caused by long-term isolation in solitary
confinement”); Porter v. Clarke, 923 F.3d 348, 355–56 (4th
Cir. 2019) (holding that conditions on Virginia’s death row
violated the Eighth Amendment and noting that “[i]n recent
years, advances in our understanding of psychology and new
empirical methods have allowed researchers to characterize
and quantify the nature and severity of the adverse
psychological effects attributable to prolonged placement of
inmates in isolated conditions”); Davis v. Ayala, 135 S. Ct.
2187, 2210 (2015) (Kennedy, J., concurring) (“[R]esearch still
confirms what this Court suggested over a century ago: Years

20
on end of near-total isolation exact a terrible price.”); Glossip
v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting)
(reviewing literature and stating that “it is well documented
that such prolonged solitary confinement produces numerous
deleterious harms”). This consensus makes plain that a
reasonable jury could conclude that thirty-three years in
solitary confinement posed a substantial risk of harm to Porter.

Porter has also provided competent evidence that he
has, in fact, experienced severe detrimental effects from his
prolonged solitary confinement. In his sworn complaint, he
stated that “the effects suffered from long-time solitary
confinement, include, but are not limited to: severe anxiety,
depression, panic, paranoia, bipolar mood swings, and at
sometimes [sic] suicidal impulses. Plaintiff regularly takes
depression medication.” JA 41. We “consider as affidavits
[Plaintiff’s] sworn verified complaints, to the extent that they
are based upon personal knowledge and set out facts that would
be admissible in evidence.” Revock v. Cowpet Bay W. Condo.
Ass’n, 853 F.3d 96, 100 n.1 (3d Cir. 2017) (citing Fed. R. Civ.
P. 56(c)(4) & Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)).
The verified complaint was part of the record before the
Magistrate Judge; Defendants have acknowledged that the
Magistrate Judge was obligated to consider the verified
complaint in deciding the motions for summary judgment. See
Oral Arg. Recording at 1:00:22-25. Porter thus provided
sufficient evidence of both serious harm and the substantial
risk of harm to survive summary judgment.6

6
In a post-oral argument 28(j) letter, Defendants have
argued that Porter was required to present expert medical
testimony to satisfy the objective prong of the Eighth
Amendment test. They cite Pearson v. Prison Health Service,

21
 Defendants’ arguments to the contrary are unavailing.
Defendants rely primarily on our decision in Peterkin v. Jeffes,
855 F.2d 1021 (3d Cir. 1988) to argue that Porter’s solitary
confinement does not give rise to an Eighth Amendment
violation. In Peterkin, we held that a class of fifteen prisoners
on death row in Pennsylvania “ha[d] not established that the
totality of the conditions of their confinement constitutes cruel
and unusual punishment.” Id. at 1022. Defendants argue that
Peterkin controls this case.

We disagree. Although many of the current conditions
in the CCU are the same as or similar to those at issue in
Peterkin,7 there are key differences between the cases. First,

850 F.3d 526 (3d Cir. 2017), for this proposition. But Pearson
was an adequacy of care case. We held that medical testimony
may be necessary to satisfy the subjective prong of the Eighth
Amendment test in such cases: “[W]e think that medical expert
testimony may be necessary to establish deliberate indifference
in an adequacy of care claim where, as laymen, the jury would
not be in a position to determine that the particular treatment
or diagnosis fell below a professional standard of care.” Id. at
536. This is not the situation here.
7
Death row inmates were housed at two facilities when
Peterkin was decided. 855 F.2d at 1026. The conditions varied
slightly at the two facilities. The conditions similar to Porter’s
include: confinement in individual cells for approximately
twenty-two hours a day; cells between sixty and seventy-one
square feet; showers three times a week or on alternate days;
telephone calls either once a week or once a month; noncontact
visits once a week; work programs in the form of janitorial
tasks on death row; access to educational materials in the cells

22
Porter is making an as-applied Eighth Amendment challenge
to his specific conditions of confinement; in contrast, Peterkin
was a class action making a facial challenge to death row
conditions generally. Our decision in Porter’s case would not
determine that the Commonwealth’s death row procedures and
policies are facially unconstitutional. As Defendants
acknowledged at oral argument, the fact that Peterkin was a
facial challenge distinguishes the case. See Oral Arg.
Recording at 58:48-52.8

only; access to medical and psychological professionals in the
cells; and exercise either individually or with one companion
in enclosed exercise spaces. Peterkin, 855 F.2d at 1026–29,
1031.
8
Our dissenting colleague disagrees that this posture
distinguishes Porter’s case. Dissenting Op. at 14. For that
proposition, he relies on Bucklew v. Precythe, 139 S. Ct. 1112
(2019), where the Supreme Court held that in all Eighth
Amendment method-of-execution claims, including both facial
challenges and as-applied challenges, a prisoner must show a
feasible alternative method of execution. Rejecting Bucklew’s
argument that he should not be required to show an alternative
in an as-applied challenge, the Court stated that “classifying a
lawsuit as facial or as-applied affects the extent to which the
invalidity of the challenged law must be demonstrated and the
corresponding breadth of the remedy, but it does not speak at
all to the substantive rule of law necessary to establish a
constitutional violation.” Id. at 1127 (internal quotation marks
omitted). The dissent seems to believe that we are relying on
a different “substantive rule of law” in recognizing a
distinction between Porter’s situation and that of the Peterkin
class. Not so. In both cases, the Eighth Amendment standard

23
 Second, Porter has spent substantially more time in
solitary confinement on death row than the Peterkin plaintiffs.
The maximum amount of time that any of the Peterkin
plaintiffs had spent on death row at the time of the lawsuit was
four years. Id. at 1029 (“The district court found that some of
the prisoners had already been on death row for four years.”).
Porter’s duration of confinement is more than eight times as
long. Given the consensus in the research and caselaw that
prolonged solitary confinement is highly detrimental to an
inmate’s physical and mental health, that Porter has been in
isolation for more than three decades sharply distinguishes the
Eighth Amendment calculus here.

Third, and finally, the research and caselaw have
advanced considerably since we decided Peterkin in 1988.
See, e.g., Porter, 923 F.3d at 358–59 (clarifying that Porter
does not overrule past precedent because it was decided on a
different set of facts, including that the plaintiffs in Porter
introduced expert reports detailing the risks of solitary
confinement with studies that are more recent than those that
were available in the prior case).

is the same: to satisfy the objective prong, “the inmate must
show that he is incarcerated under conditions posing a
substantial risk of serious harm.” Mammana v. Fed. Bureau of
Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). While the class in
Peterkin was not able to meet this standard based on the
conditions that affected the class as a whole, Porter is able to
meet this standard because of his particular circumstances.
There is no difference in the substantive rule of law, only
whether Porter has shown a deprivation in his particular case.

24
 Because of these differences, Peterkin is not controlling
here. Porter has been subjected to more than thirty-three years
in solitary confinement. That extreme duration of solitary
confinement has had severe detrimental impacts on Porter,
impacts that track the robust and growing scientific and legal
understanding of the harms of prolonged solitary confinement.
Viewing Porter’s deprivations according to “contemporary
standards of decency,” Estelle, 429 U.S. at 103, Porter has
certainly provided enough evidence to survive summary
judgment.

2. Whether Defendants Knew of and Disregarded the
Risk to Porter

To satisfy the subjective prong of the Eighth
Amendment test, an inmate must show that the prison official
“knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to
abate it.” Chavarriaga, 806 F.3d at 229 (quoting Farmer, 511
U.S. at 847) (quotation marks omitted). The inmate “may
demonstrate deliberate indifference by showing that the risk of
harm was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past such that
defendants must have known about the risk.” Betts v. New
Castle Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir. 2010)
(quoting Farmer, 511 U.S. at 842–43) (internal quotation
marks omitted).9

9
Our dissenting colleague cites 61 Pa. Cons. Stat.
§ 4303 several times, including for the proposition that our
“entire discussion of the subjective prong is ill-considered.”
Dissenting Op. at 24. Under § 4303, the Pennsylvania
Department of Corrections must keep an inmate sentenced to

25
 Defendants have acknowledged the risks of prolonged
solitary confinement. In a past case, Defendant Wetzel
conceded that long-term solitary confinement poses serious
risks: “Secretary Wetzel agreed that ‘long term’ solitary
confinement ‘certainly could’ have negative effects on mental
health and that Johnson’s thirty-six year confinement is
‘certainly’ considered long term. . . . Moreover, Secretary
Wetzel stated that he is familiar with the work of Dr. Haney,
which sets forth at length the harmful effects of solitary

death in solitary confinement until infliction of the death
penalty or discharge “[u]pon receipt of the warrant.” 61 Pa.
Cons. Stat. § 4303. The “warrant,” which is issued by the
Governor, specifies a day for execution “which shall be no later
than 60 days after the date the warrant is signed.” § 4302(a)(1).
Once the warrant has expired, however, “it is entirely a matter
of the Department’s discretion where to house an inmate.”
Clark v. Beard, 918 A.2d 155, 160 (Pa. Commw. Ct. 2007).
According to Department of Corrections’ website, the
Governor of Pennsylvania has never issued an execution
warrant for Porter. See Department of Corrections, Execution
Warrants/Notices Issued by Governor (1985 to Present)
https://www.cor.pa.gov/About%20Us/Initiatives/Documents/
Death%20Penalty/Warrants.pdf (last visited June 25, 2020).
Moreover, at oral argument, Defendants conceded that if there
is an execution warrant for Porter that is not listed, it is null
because the sixty days have run. Oral Arg. Recording at 48:16-
46. The dissent’s statement that “the citizens of Pennsylvania .
. . have determined that [Porter] must remain in solitary
confinement while on death row” is simply incorrect.
Dissenting Op. at 23–24. Porter remains in the CCU as a
matter of the Department of Corrections’ discretion, not
because of any statutory requirement.

26
confinement.” Johnson v. Wetzel, 209 F. Supp. 3d 766, 779
(M.D. Pa. 2016) (internal citation omitted). The record also
reflects that Defendant Gilmore was aware that Porter had been
in solitary confinement for more than three decades and was
experiencing mental health problems: following our decision
in Williams, Porter submitted a grievance and multiple appeals
to the DOC, including to Defendant Gilmore. Moreover, the
DOC’s representative in this case, Steven Glunt, testified in his
deposition about “potential decomposition” that affects death
row inmates as a result of prolonged solitary confinement:

[I]f you put [capital case inmates] in an
environment where there’s not an opportunity to
be interactive, stimulate their thought processes,
to grow . . . they start to decompensate. And then
that increases their risk of self harm. That
increases their risk of hurting others. . . .
[Decompensate means] a person who is either
emotional, physically, or mentally starting to
withdraw, and they’re starting to reduce their
interaction with others. They’re starting to
literally, from an emotional and intellectual
standpoint, shut down.

JA 199–200.

Furthermore, the substantial risks of prolonged solitary
confinement are “obvious,” “longstanding, pervasive, well-
documented, [and] expressly noted by prison officials in the
past.” Farmer, 511 U.S. at 842 (holding that a factfinder can
conclude that a prison official was aware of a serious risk if the
risk was obvious). As we have emphasized, a wide range of
researchers and courts have repeatedly described the serious

27
risks associated with solitary confinement. Moreover,
correctional officers have publicly acknowledged these harms.
As Porter highlights, Defendant Wetzel is the president of the
Association of State Correctional Administrators (“ASCA”),
which has published reports about efforts to limit solitary
confinement.10

Finally, that DOC policies specifically recognize the
mental health risks posed by solitary confinement supports
Porter’s argument that Defendants were deliberately
indifferent. In the section on administrative custody (“AC”),
the policies state: “If the inmate has a mental illness, the PRC
[Program Review Committee] should explore the feasibility of

10
See Association of State Correctional Administrators,
Committees, https://www.asca.net/committees (last visited
Nov. 14, 2019); ASCA and Liman Center Release Two New
Reports on Solitary Confinement, Yale Law School (Oct. 10,
2018), https://law.yale.edu/yls-today/news/asca-and-liman-
center-release-two-new-reports-solitary-confinement;
Association of State Correctional Administrators & The Liman
Center for Public Interest Law, Reforming Restrictive
Housing: The 2018 ASCA-Liman Nationwide Survey of Time-
in-Cell, Yale Law School (Sept. 25, 2018),
https://law.yale.edu/sites/default/files/documents/pdf/Liman/a
sca_liman_2018_restrictive_housing_revised_sept_25_2018_
-_embargoed_unt.pdf; Association of State Correctional
Administrators & The Liman Center for Public Interest Law,
Working to Limit Restrictive Housing: Efforts in Four
Jurisdictions to Make Changes (Sept. 25, 2018),
https://law.yale.edu/sites/default/files/documents/pdf/Liman/a
sca_liman_2018_workingtolimit.pdf.

28
placing him/her into [other treatment units] as an alternative . .
. .” JA 101. “A qualified psychologist or psychiatrist shall
personally interview and conduct an assessment of any inmate
remaining in AC status for more than 30 calendar days. If the
inmate’s confinement continues for more than 30 calendar
days, a mental health assessment shall be completed at least
every 90 calendar days.” JA 106 (emphases omitted). As
Glunt describes, staff working in the CCU are trained with
“more advanced mental-health observation,” including how to
recognize symptoms of decompensation. JA 223. The DOC
has thus openly recognized the substantial risk of serious
mental harm that prolonged solitary confinement poses.11

In evaluating the subjective prong of the Eighth
Amendment test, we may also consider whether officials “had
a legitimate penological purpose” behind their conduct. Ricks
v. Shover, 891 F.3d 468, 475 (3d Cir. 2018); see also Wood v.
Beauclair, 692 F.3d 1041, 1050 (9th Cir. 2012). The Eighth
Amendment prohibits punishments without penological
justification. See Hope v. Pelzer, 536 U.S. 730, 737 (2002).
As a defense to Porter’s Eighth Amendment claim, Defendants
argue that they have a legitimate penological justification for
keeping him in indefinite solitary confinement. Specifically,

11
At oral argument, Defendants maintained that they
were not deliberately indifferent because they provided
enhanced mental health services to CCU inmates. See Oral
Arg. Recording at 1:06:39-53. But the question in this case is
not whether the mental health care afforded to Porter was
constitutionally inadequate. A reasonable jury could conclude
that Defendants have been deliberately indifferent to the
substantial risk of serious harm by leaving Porter in solitary for
more than thirty-three years.

29
Defendants argue that they keep inmates like Porter in solitary
because capital inmates have “nothing left to lose.” Answering
Br. 27. However, Defendants have not offered any evidence
about the risk that Porter specifically poses, or any
individualized argument about Porter at all. Moreover, the
DOC witness acknowledged in his deposition that the “nothing
left to lose” argument is not entirely accurate; he testified that
death row inmates like Porter have privileges that can be taken
from them if they break any rules. It is also undisputed that
Porter has not had any disciplinary infractions during his
lengthy incarceration. We therefore do not find Defendants’
argument on this point convincing.

In conclusion, we hold that a reasonable jury could find
that Defendants know that prolonged solitary confinement has
serious detrimental health impacts, but that they have
disregarded the risk in Porter’s case by leaving him in isolation
for more than thirty-three years.12

12
It scarcely needs saying that, in reaching this
conclusion we do not “create[] for death-row prisoners like
Porter a brand-new constitutional right to escape solitary
confinement,” as our dissenting colleague claims. Dissenting
Op. at 8. To the contrary, our conclusion is based on: (1) our
well-established case law stating that the standard for
satisfying the objective prong of the Eighth Amendment is a
substantial risk of serious harm; (2) the well-documented and
oft-cited body of research and law recognizing the substantial
risk posed by solitary confinement of such an extreme
duration; (3) Porter’s own articulation of the harm that he has
experienced; and (4) Defendants’ own recognition of the
substantial risks that prolonged solitary confinement like that
experienced by Porter poses. We do not hold that all inmates

30
 C. Substantive Due Process

Porter also argues that Defendants have violated his
substantive due process rights under the Fourteenth
Amendment. We hold that Porter’s substantive due process
claim is barred under the more-specific-provision rule and
affirm the District Court’s grant of summary judgment on this
claim.

The substantive component of the Due Process Clause
“protects individual liberty against certain government actions
regardless of the fairness of the procedures used to implement
them.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir.
2016) (quoting Collins v. City of Harker Heights, Tex., 503
U.S. 115, 125 (1992)). “[T]he substantive component of the
Due Process Clause can only be violated by governmental
employees when their conduct amounts to an abuse of official
power that ‘shocks the conscience.’” Fagan v. City of
Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (citation omitted).

Porter argues that his thirty-three year solitary
confinement is conscience-shocking because Defendants have
subjected him to “extreme social isolation” even though he has
a perfect disciplinary record and they are aware of the
psychological and physical consequences of prolonged
isolation. Defendants argue that Porter cannot bring a separate
substantive due process claim because his Eighth Amendment
claim covers the same allegations under the more-specific-
provision rule.

in solitary confinement or on death row have been subjected to
an Eighth Amendment violation.

31
 We agree with Defendants. The Supreme Court “has
always been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.” Collins, 503
U.S. at 125. Under the more-specific-provision rule, “if a
constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim
must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due
process.” United States v. Lanier, 520 U.S. 259, 272 n.7
(1997). As the Supreme Court explained in Whitley v. Albers,
475 U.S. 312, 327 (1986):

[T]he Eighth Amendment, which is specifically
concerned with the unnecessary and wanton
infliction of pain in penal institutions, serves as
the primary source of substantive protection to
convicted prisoners in cases such as this one,
where the deliberate use of force is challenged as
excessive and unjustified. It would indeed be
surprising if, in the context of forceful prison
security measures, “conduct that shocks the
conscience” or “afford[s] brutality the cloak of
law,” and so violates the Fourteenth
Amendment, were not also punishment
“inconsistent with contemporary standards of
decency” and “repugnant to the conscience of
mankind,” in violation of the Eighth . . . . [I]n
these circumstances the Due Process Clause
affords respondent no greater protection than
does the Cruel and Unusual Punishments Clause.

Id. at 327 (internal citations omitted).

32
 We first applied the more-specific-provision rule in
Betts, 621 F.3d at 260. There, the plaintiff alleged that prison
officials violated his Eighth Amendment and substantive due
process rights by permitting him to play tackle football without
protective equipment. We noted that the plaintiff failed to “cite
any case law for the proposition that he may bring both
substantive due process and Eighth Amendment claims
challenging the same conduct” and that his claims about his
conditions of confinement and the officials’ failure to ensure
his safety “fit squarely within the Eighth Amendment’s
prohibition on cruel and unusual punishment.” Id. at 261; see
also Wharton v. Danberg, 854 F.3d 234, 246 (3d Cir. 2017)
(affirming district court’s dismissal of substantive due process
claims that were parallel to Eighth Amendment claims under
the more-specific-provision rule).

Porter submits that the claims are distinct because on his
substantive due process claim, he is arguing that Defendants
“have violated that constitutional right by engaging in conduct
that shocks the conscience irrespective of any procedural
safeguards, unreasonable risk, or penological purpose.”
Opening Br. 46–47. But we do not see a distinction here. As
in Betts, Porter’s substantive due process claim challenges the
same conduct as his Eighth Amendment claim, namely, his
prolonged solitary confinement. There are no distinct facts that
apply only to his substantive due process claim. We therefore
affirm the Magistrate Judge’s grant of summary judgment on
Porter’s substantive due process claim.

33
 D. Qualified Immunity

Finally, we must decide whether Defendants have
qualified immunity from Porter’s constitutional claims.13
Because the Magistrate Judge found that Defendants did not
violate Porter’s constitutional rights, she did not reach this
affirmative defense. Since we disagree with the Magistrate
Judge on the procedural due process and Eighth Amendment
claims we will do so. See Kabakjian v. United States, 267 F.3d
208, 213 (3d Cir. 2001) (“We may affirm a judgment on any
ground apparent from the record, even if the district court did
not reach it.”).

We apply a two-part test to qualified immunity
defenses: “We first determine whether a right has been
violated. If it has, we then must decide if the right at issue was
clearly established when violated such that it would have been
clear to a reasonable person that her conduct was unlawful.”
Williams, 848 F.3d at 557. To determine whether the right was
clearly established, the inquiry “must be undertaken in light of
the specific context of the case, not as a broad general

13
Porter contends that Defendants have arguably
waived the defense of qualified immunity on his Eighth
Amendment claims because they did not raise it in their motion
for summary judgment. We disagree. Defendants did properly
raise qualified immunity as a defense in their Answer to
Porter’s Complaint and in their Response to Porter’s Motion
for Summary Judgment on his procedural due process claim.
Their Response to Porter’s Motion for Summary Judgment did
not need to include qualified immunity with respect to the
Eighth Amendment because Porter did not move for summary
judgment on this claim.

34
proposition. . . .” Saucier v. Katz, 533 U.S. 194, 201–02 (2001)
(receded from on other grounds by Pearson, 555 U.S. 223). In
some cases, “a general constitutional rule already identified in
the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in
question has [not] previously been held unlawful.” Hope, 536
U.S. at 741 (2002) (quoting Lanier, 520 U.S. at 271) (brackets
in original) (internal quotation marks and citation omitted).
“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances” as long as
the law gives the officials “fair warning” that their treatment of
the inmate is unconstitutional. Id.

We look to the Supreme Court, our Circuit, and our
sister circuits to determine whether a right is clearly
established:

In conducting the inquiry into whether a right is
clearly established, we look first for applicable
Supreme Court precedent. If none exists, we
consider whether there is a case of controlling
authority in our jurisdiction or a robust
consensus of cases of persuasive authority in the
Courts of Appeals that could clearly establish a
right for purposes of qualified immunity.

Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877
F.3d 136, 142 (3d Cir. 2017) (internal citations, quotation
marks, and alterations omitted).

35
 1. Porter’s Procedural Due Process Claim

Because Porter’s procedural due process rights have
been clearly established since we decided Williams in 2017,
Defendants are not entitled to qualified immunity on this claim.
In Williams, we explicitly stated:

Our holding today that Plaintiffs had a protected
liberty interest provides “fair and clear warning”
that, despite our ruling against Plaintiffs,
qualified immunity will not bar such claims in
the future. As we have explained, scientific
research and the evolving jurisprudence has
made the harms of solitary confinement clear:
Mental well-being and one’s sense of self are at
risk. We can think of few values more worthy of
constitutional protection than these core facets of
human dignity.

848 F.3d at 574 (quoting Lanier, 520 U.S.at 271).

We were not alone in reaching this conclusion. See Isby
v. Brown, 856 F.3d 508, 524 (7th Cir. 2017) (holding that
inmate who had been in administrative segregation for over ten
years had a due process liberty interest in avoiding continued
isolation); Incumaa v. Stirling, 791 F.3d 517, 531–32 (4th Cir.
2015) (holding that an inmate who spent twenty years in
solitary confinement had a due process liberty interest in
avoiding solitary confinement); Wilkerson v. Goodwin, 774
F.3d 845, 857–58 (5th Cir. 2014) (denying a qualified
immunity defense to prison officials on a procedural due
process claim brought by an inmate who had been in solitary
confinement for thirty-nine years and stating that “no

36
reasonable prison official could conclude that continuing four
decades in indefinite solitary confinement would not implicate
a liberty interest protected by due process”); Brown v. Ore.
Dep’t of Corrs., 751 F.3d 983, 987–88 (9th Cir. 2014) (holding
that an inmate who spent twenty-seven months in solitary
confinement had a due process liberty interest in avoiding
further solitary confinement); Selby v. Caruso, 734 F.3d 554,
559 (6th Cir. 2013) (holding that an inmate who spent thirteen
years in solitary confinement had a due process liberty
interest); Magluta v. Samples, 375 F.3d 1269, 1277–80 (11th
Cir. 2004) (holding that an inmate who spent more than five
hundred days in solitary confinement stated a claim for a
procedural due process violation); Hanrahan v. Doling, 331
F.3d 93, 99 (2d Cir. 2003) (affirming the denial of qualified
immunity to prison officials on a procedural due process claim
brought by an inmate who had been sentenced to solitary
confinement for ten years); Colon v. Howard, 215 F.3d 227,
231–32 (2d Cir. 2000) (holding that solitary confinement for
305 days gave rise to a due process liberty interest).

There is therefore wide consensus that prolonged and
indefinite solitary confinement gives rise to a due process
liberty interest for inmates in Porter’s circumstances. These
cases gave Defendants “fair warning” that keeping an inmate
who has been in solitary confinement for thirty-three years on
death row while appeals of his vacatur order proceed violates
his procedural due process rights. Defendants therefore are not
entitled to qualified immunity as of our decision in Williams.

2. Porter’s Eighth Amendment Claim

On Porter’s Eighth Amendment claim, however, we
reach a different conclusion. Unlike his procedural due

37
process rights, Porter’s Eighth Amendment right has not been
clearly established. Porter has correctly pointed out that our
Circuit and our sister circuits have held that inmates can bring
Eighth Amendment claims based (at least in part) on conditions
in solitary confinement. But only one circuit has done so in
connection with solitary confinement on death row. Cases that
challenge interpretation of death row policy and conditions on
death row are distinct from cases brought by inmates in general
population subject to solitary confinement. In Williams, for
example, we considered whether our decision in Shoats, 213
F.3d 140, was sufficiently similar to the facts and claims raised
by the Williams plaintiffs. We decided that, although Shoats is
analogous and should have “raised concerns” about whether
the treatment of the Williams plaintiffs was constitutional, it
was not sufficiently similar because Shoats was not on death
row and did not directly dispute the death row isolation policy
at issue in Williams. See Williams, 848 F.3d at 572.

We have not found Eighth Amendment cases with
sufficiently similar fact patterns, and the cases that Porter cites
in support of his argument are inapposite. In particular,
Porter’s reliance on Palakovic, 854 F.3d 209 is unavailing. In
that case, the plaintiff had committed suicide in solitary
confinement. He was not on death row. The plaintiff’s family
alleged that he had preexisting serious mental health problems
that the prison had diagnosed. Even so, prison officials
repeatedly placed him in solitary confinement. Considering
the plaintiff’s particular vulnerability in light of the known
dangers of solitary confinement, we held that the plaintiff had
stated an Eighth Amendment claim. Id. at 225–26. Although
the Palakovic decision certainly acknowledges the dangers of
solitary confinement, that the plaintiff was not on death row
and had specific known mental health issues pre-assignment to

38
solitary confinement distinguishes Palakovic from Porter’s
case.

We similarly find Porter’s reference to Allah v.
Bartkowski, 574 F. App’x 135 (3d Cir. 2014) (unpublished),
unconvincing. Aside from the not precedential status of Allah,
which renders it useless as precedent, that case focused on
sleep deprivation and unsanitary conditions in solitary
confinement, neither of which are at issue in Porter’s case. Id.
at 138–39. Nor are the cases Porter cites from other circuits
sufficiently on point. They do not concern death row and, in
each case, the inmate made specific allegations in addition to
placement in solitary confinement that gave rise to a potential
Eighth Amendment violation. See Rice ex rel. Rice v. Corr.
Med. Srvs., 675 F.3d 650, 666–67 (7th Cir. 2012) (noting in
dicta that the court has previously recognized that prolonged
confinement in solitary may constitute a violation of the Eighth
Amendment depending on duration, nature and need for the
confinement, but dismissing the Eighth Amendment claim in
the case and noting that past cases involved other deprivations
in addition to confinement in solitary); Fogle v. Pierson, 435
F.3d 1252, 1259–60 (10th Cir. 2006) (holding that an inmate
in administrative segregation made an arguable Eighth
Amendment claim when he alleged that he was denied outdoor
exercise for three years); Keenan v. Hall, 83 F.3d 1083, 1089
(9th Cir. 1996) (an inmate in solitary confinement stated a
claim for an Eighth Amendment violation based on his
allegations that he was subjected to a lack of outdoor exercise,
constant loud noise, bad ventilation, constant illumination,
poor sanitation, and spoiled food and foul water); Walker v.
Shansky, 28 F.3d 666, 672–73 (7th Cir. 1994) (holding that a
jury could conclude that the plaintiff’s prolonged solitary
confinement together with his other allegations of deprivations

39
and abuse, including denial of water for up to a week, repeated
physical abuse, and denial of sufficient exercise time, violated
the Eighth Amendment); LaReau v. MacDougall, 473 F.2d
974, 978 (2d Cir. 1972) (holding that an inmate made an Eighth
Amendment claim based on a five day stay in a strip cell, but
focusing on the fact that the cell was in continuous darkness
and the inmate was unable to maintain his personal
cleanliness).

The Fourth Circuit has held that solitary confinement
conditions on death row violate the Eighth Amendment.
Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). But a single
out-of-circuit case is insufficient to clearly establish a right.
Defendants are therefore entitled to qualified immunity on
Porter’s Eighth Amendment claim.

We emphasize, however, that from this point forward,
it is well-established in our Circuit that such prolonged solitary
confinement satisfies the objective prong of the Eighth
Amendment test and may give rise to an Eighth Amendment
claim, particularly where, as here, Defendants have failed to
provide any meaningful penological justification.

IV. CONCLUSION

For the foregoing reasons, we will reverse and remand
in part and affirm in part. We reverse the Magistrate Judge’s
grant of summary judgment to Defendants on Porter’s
procedural due process claim. We affirm the grant of summary
judgment to Defendants on Porter’s Eighth Amendment claim,
but on the ground that Defendants are entitled to qualified
immunity because the right was not clearly established. We
affirm the grant of summary judgment to Defendants on

40
Porter’s substantive due process claim. Finally, we remand to
the District Court to determine damages and declaratory and
injunctive relief.14

14
Defendants argue that Porter’s requests for equitable
relief are moot and/or abandoned. We disagree. Since the
“effects of the alleged violation” have not been “completely
eradicated,” the claims are not moot. Burns v. PA Dep’t of
Corrs., 544 F.3d 279, 283 (3d Cir. 2008) (quotation marks
omitted). Nor has Porter abandoned the claims. Porter
requested declaratory and injunctive relief in his Complaint.
Defendants recognized that he was seeking injunctive relief in
their motion for summary judgment. See Porter v. Penn. Dep’t
of Corrs., 2:17-cv-763, Doc. 53, at 2 (“As relief, Porter is
requesting that he be released from the CCU and placed in a
General Population housing unit.”). Likewise, the Magistrate
Judge recognized that Porter was requesting equitable relief.
See Porter, 2018 WL 5846747, at *5 (“Porter seeks declaratory
relief.”). Defendants have not pointed to any evidence that
Porter has changed his originally requested relief.

41
PORTER, Circuit Judge, concurring in part and dissenting in
part.

The majority incorrectly holds that Porter’s solitary
confinement violates his procedural due process rights. To
reach that conclusion, the majority must shoehorn this case into
the non-analogous holding of Williams v. Secretary
Pennsylvania Department of Corrections, 848 F.3d 549 (3d
Cir. 2017). It accomplishes that only by ignoring Supreme
Court precedent describing the nature of a judicial stay. The
majority then strides into constitutional territory that the
Supreme Court and our Court have assiduously avoided—
holding that Defendants likely violated the Eighth Amendment
by keeping Porter in solitary confinement. For these and other
reasons, I respectfully dissent in part.

I concur in part because I agree with the majority that
Porter’s substantive due process claim is barred by the more-
specific-provision rule. See Maj. Op. 31–33. Assuming for the
sake of argument that Porter’s Eighth Amendment rights were
violated, I also agree that Defendants are entitled to qualified
immunity.

I

On April 27, 1986, Theodore Wilson a.k.a. Ernest
Porter robbed, shot, and killed Raymond Fiss at Fiss’s
1

Philadelphia beauty shop. Commonwealth v. Porter, 569 A.2d
942, 944 (Pa. 2012). A Pennsylvania jury convicted Porter of
first-degree murder, robbery, and possessing a firearm. Id. at
943. The jury then sentenced Porter to death. Id. In accordance
with state law, he was placed in solitary confinement. See 61
Pa. Cons. Stat. § 4303.2

The Supreme Court of Pennsylvania affirmed Porter’s
conviction and sentence. It also denied his two subsequent
petitions for post-conviction relief. See Commonwealth v.

1
State and federal courts have used Wilson’s alias throughout
all proceedings, and we follow suit. See Porter v. Horn, 276 F.
Supp. 2d 278, 288 n.1 (E.D. Pa. 2003).
2
The predecessor statute to 61 Pa. Cons. Stat. § 4303 was 61
Pa. Stat. § 3003.
1
Porter, 728 A.2d 890, 893 (Pa. 1999); Commonwealth v.
Porter, 35 A.3d 4, 6 (Pa. 2012).

In 2000, Porter filed a petition for habeas corpus in the
United States District Court for the Eastern District of
Pennsylvania. On June 26, 2003, the District Court granted
relief with respect to Porter’s death sentence but denied the
petition in all other respects. Porter v. Horn, 276 F. Supp. 2d
278, 288 (E.D. Pa. 2003). Porter and the government both
appealed, triggering an automatic stay of the District Court’s
order vacating Porter’s death sentence. See E.D. Pa. L.R.
9.4(12) (requiring the District Court, after granting a certificate
of appealability in a habeas proceeding, to “grant a stay
pending disposition of the appeal”). Seventeen years later, at
Porter’s request, his habeas appeal remains pending in
abeyance before this Court. So he has continued to live in
solitary confinement.

Porter commenced this action in 2017, alleging
violations of three constitutional protections: (1) his procedural
due process rights under the Fourteenth Amendment; (2) his
substantive due process rights under the Fourteenth
Amendment; and (3) his right to be free from cruel and unusual
punishment under the Eighth Amendment. The parties filed
cross-motions for summary judgment, and the District Court—
correctly in my view—granted Defendants’ motion on all three
claims.

II

The majority holds that Pennsylvania has violated
Porter’s procedural due process right to avoid continued
solitary confinement. That holding turns on the majority’s
insistence that “Williams governs Porter’s procedural due
process claim.” Maj. Op. 10. But by its own terms, Williams
does not apply to this case. And without Williams, Porter’s
alleged protected liberty interest and procedural due process
claim have no legal support.

In Williams, the plaintiffs were two Pennsylvania death-
row inmates who were kept in solitary confinement by prison
officials for six and eight years, respectively, after their death
sentences were vacated. 848 F.3d at 554. The fact that the
inmates remained in solitary confinement long after their death
2
sentences had been vacated is central to Williams’s holding,3
and it permeates the entire opinion: Twenty-eight times we
carefully noted that the inmates were kept in solitary
confinement after their death sentences had been vacated.

In the section of Williams concluding that the inmates
had a protected liberty interest, we emphasized that they
remained in solitary confinement on death row for years “after
the initial justification for subjecting them to such extreme
deprivation (their death sentences) ceased to exist.” Id. at 561
(emphasis added). Focusing on the indefinite nature of their
solitary confinement, we said that their “confinement on death
row after their death sentences were vacated continued for
years with no ascertainable date for their release into the
general population.” Id. at 562 (emphasis added). And
contrasting the plaintiffs with other inmates who were moved
into and out of administrative segregation for behavioral
reasons, we observed that they “would still have been relegated
to death row indefinitely even though they had won new
sentencing proceedings and were not under active sentences of
death.” Id. (emphasis added).

In another section of Williams, we distinguished cases
holding that capital murder inmates do not have a liberty
interest that precludes confinement on death row without
regular review because “those inmates were all confined
pursuant to death sentences that had not been vacated.” Id. at
569 (emphasis in original) (distinguishing Prieto v. Clarke,
780 F.3d 245 (4th Cir. 2015); Smith v. Coughlin, 748 F.2d 783
(2d Cir. 1984); and Parker v. Cook, 642 F.2d 865 (5th Cir.
1981)). “Accordingly,” we explained, “confinement on death
row was not a significant or atypical hardship for them. Rather,
it was expressly within the ‘expected perimeters of the
sentence imposed.’” Id. (quoting Sandin v. Conner, 515 U.S.
472, 485 (1995)). Because the Williams plaintiffs’ death
sentences had been vacated, their liberty interests were “not

3
See Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 570
(3d Cir. 2017) (“For the reasons we have discussed, we now
hold that Plaintiffs had a due process liberty interest in
avoiding the extreme sensory deprivation and isolation
endemic in confinement on death row after their death
sentences had been vacated.” (emphasis added)).
3
comparable to those of inmates with active death sentences that
arguably require continued placement on death row.” Id. But if
the fact of an active death sentence is what distinguished
Williams from Prieto, Smith, and Parker, then it also
distinguishes Porter’s case from Williams.

Finally, in order to dispel any possible ambiguity we
explicitly cabined Williams’s holding by refusing to extend it
to “inmates whose death sentences are still active and viable.”
Id. at 552 n.2. That is, inmates like Porter.

A

I belabor this point because Porter’s solitary
confinement (unlike the plaintiffs in Williams, but exactly like
the capital murder inmates in Prieto, Smith, and Parker) is
required by his still-active death sentence. As we noted in
Williams, when a defendant is sentenced to death and the
Governor issues a warrant for execution, the Department of
Corrections “shall, until infliction of the death penalty or until
lawful discharge from custody, keep the inmate in solitary
confinement.” 61 Pa. Cons. Stat. § 4303; see Williams, 848
F.3d at 554. That is, Pennsylvania’s Prisons and Parole Code
requires inmates with active death sentences to remain in
solitary confinement until execution or lawful discharge from
custody, which “would occur when the inmate’s conviction is
overturned or pardoned.” Clark v. Beard, 918 A.2d 155, 160
(Pa. Commw. Ct. 2007). Porter has not been executed or
lawfully discharged from custody. So his solitary confinement
is not a significant or atypical hardship but fits squarely within
the “expected perimeters of the sentence imposed.” Williams,
848 F.3d at 569.

B

The majority attempts to fit this case into Williams’s
holding by asserting that “Porter’s circumstances are
analogous to those of the Williams plaintiffs.” Maj. Op. 11. In
fact, Porter’s case differs from Williams on precisely the
ground that that we took such pains to emphasize in Williams:
He still has an active death sentence.

Porter’s death sentence remains active because the
habeas court’s vacatur order was immediately stayed,
4
preserving the status quo. The majority brushes that aside,
declaring that the stay “does not mean that the [vacatur] order
has no legal import or that Porter currently has a viable death
sentence.” Maj. Op. 11. This is pure ipse dixit, and it is
incorrect.

In Nken v. Holder, 556 U.S. 418 (2009), the Supreme
Court described the nature and effect of a stay. As the Court
explained, a stay is not a vague, legally meaningless pause in a
judicial proceeding. For as long as the stay is in effect it
“suspend[s] the source of authority to act—the order or
judgment in question[.]” Id. at 428–29. Although a stay is
functionally similar to an injunction, they “serve different
purposes” and are analytically distinct in this important
respect: The injunction operates in personam, telling a
particular actor what it may or may not do; conversely, the stay
“operates upon the judicial proceeding itself” and prevents
“judicial alteration of the status quo.” Id.

Here, the status quo that would have been judicially
altered by the habeas court’s vacatur order was Porter’s active
death sentence. But because the stay of that order “suspend[ed]
judicial alteration of the status quo,” see id. at 429 (citation
omitted), Porter’s death sentence was undisturbed and remains
in place, uninterrupted, to this day.

This explication of Nken’s teaching about stays is
utterly conventional. Following Nken, other circuit courts have
similarly described stays as “preserv[ing] the status quo,” Al
Otro Lado v. Wolf, 945 F.3d 1223, 1224 (9th Cir. 2019),
“suspend[ing] judicial alteration of the status quo,” Veasey v.
Perry, 769 F.3d 890, 892 (5th Cir. 2014) (citing Nken, 556 U.S.
at 429), and “void[ing] any legal effect from the stayed
judgment,” Sanofi-Aventis U.S. LLC v. Sandoz, Inc., No. 2009-
1427, 2009-1444, 2009 WL 7365766, at *2 (Fed. Cir. Aug. 13,
2009) (Moore, J., concurring in the denial of reconsideration)
(referencing Nken). The majority’s assertion that the habeas
court’s stay of the vacatur order accomplished nothing, and
that Porter’s death sentence was actually vacated, is
unprecedented and flies directly in the face of Nken.4 The

4
The majority’s unconventional stay doctrine also threatens to
destabilize the appellate process and our local practice. See
5
critical distinction between Williams and this case cannot be
evaded by pretending that the stay of the vacatur order was a
legal nullity.

III

Porter argues in the alternative that even if Williams
does not apply, his solitary confinement is an atypical and
significant hardship that creates a due process liberty interest.
Because the majority holds that Nken does not apply and so
Williams does, it declined to address this argument. Maj. Op.
15 n.4. But Porter’s constitutional-liberty-interest argument is
also a non-starter.

“The Due Process Clause standing alone confers no
liberty interest in freedom from state action taken within the
sentence imposed.” Sandin, 515 U.S. at 480 (internal quotation
marks and citation omitted). Therefore, “[a]s long as the
conditions or degree of confinement to which the prisoner is
subjected is within the sentence imposed upon him and is not
otherwise violative of the Constitution, the Due Process Clause
does not in itself subject an inmate’s treatment by prison
authorities to judicial oversight.” Montanye v. Haymes, 427
U.S. 236, 242 (1976). So the baseline for a prisoner’s
allegation of atypical and significant hardship “is ascertained
by what a sentenced inmate may reasonably expect to
encounter as a result of his or her conviction in accordance with
due process of law.” Powell v. Weiss, 757 F.3d 338, 344 (3d
Cir. 2014) (citation omitted).

In Sandin, the plaintiff challenging his solitary
confinement did not have a protected liberty interest because
his detention in a segregated unit “did not exceed similar, but
totally discretionary, confinement in either duration or degree
of restriction.” Sandin, 515 U.S. at 486. But inmates in long-
term solitary confinement may have a protected liberty interest
if they can show that, but for the discretionary decisions of

Fed. R. App. P. 8, 41(d); 3d Cir. L.A.R. 8.0, 18.0, 110.1, 111.4,
111.7 (2011). And it invites mischief in proceedings that
routinely employ stays. See e.g., 8 U.S.C. § 1252(f)(2)
(immigration); 9 U.S.C. § 3 (arbitration); 11 U.S.C. § 362
(bankruptcy).
6
prison administrators, they would be in the general prison
population. Shoats v. Horn, 213 F.3d 140, 143–44 (3d Cir.
2000). Their solitary confinement is thus “atypical” in relation
to the ordinary incidents of prison life and differs significantly
from “routine” prison conditions in Pennsylvania prisons. Id.
at 144; see also Williams, 848 F.3d at 561 (noting that prison
administrators continued plaintiffs’ assignment on death row
“after the initial justification for subjecting them to such
extreme deprivation (their death sentences) ceased to exist”);
see also Wilkinson v. Austin, 545 U.S. 209, 217 (2005)
(explaining that plaintiffs were assigned to Ohio’s Supermax
facility upon the discretionary recommendation of a three-
member committee, approved by prison warden and the
Bureau of Classification, a body of “prison officials vested
with final decisionmaking authority over all Ohio inmate
assignments”).

Porter does not fit within the category of prisoners
described in Shoats, Williams, or Wilkinson because his
solitary confinement was not discretionary. His death sentence
carries with it the statutory requirement that he remain in
solitary confinement until execution or discharge from
custody. Because solitary confinement is “within the sentence
imposed[,]” it is not atypical but exactly what Porter could
reasonably expect as a result of his death sentence. See Sandin,
515 U.S. at 480 (citation omitted).

The majority contends that sixty days after the issuance
of Porter’s execution warrant, his housing status was left
entirely to the discretion of Pennsylvania’s Department of
Corrections. Maj. Op. 25 n.9. That is not what the statute says.
Pennsylvania law provides that within ninety days after a death
sentence has been transmitted to the governor, he shall issue an
execution warrant. 61 Pa. Cons. Stat. § 4302(a)(1). “Upon
receipt of the warrant, the secretary shall, until infliction of the
death penalty or until lawful discharge from custody, keep the
inmate in solitary confinement.” 61 Pa. Cons Stat. § 4303.
These unambiguous statutory requirements are mandatory;
they confer no discretion upon the Department of Corrections
either before or after the expiration of sixty days.

The Commonwealth Court’s decision in Clark
emphasizes this point. In that case, the court specifically

7
rejected the argument that “an inmate convicted of capital
crimes [c]ould be moved back and forth between the general
population and the Capital Case Unit, depending upon the
status of his execution warrant[.]” 918 A.2d at 161. Although
the execution warrant “is the trigger for moving an inmate to
the Capital Case Unit” in the first instance, his continued stay
in solitary confinement is required by statute, not the status of
the warrant, “which might be signed several times over the
course of [the] inmate’s post-conviction appeals.” Id. The
Department has discretion “where to house” the death-
sentenced inmate, but it does not have discretion to remove him
from the Capital Case Unit altogether. Id. at 160. To the
contrary, § 4303 specifically prohibits the Department from
exercising the type of discretion suggested by the majority:
“Once the governor signed an execution warrant for [Porter],
the Department was compelled by [§ 4303] to remove [him]
from the general population.” Id. at 161; see also Lopez v. Pa.
Dep’t of Corr., 119 A.3d 1081, 1089 (Pa. Commw. Ct. 2015)
(“[B]ecause the Legislature has specifically provided that a
capital case prisoner shall be kept in solitary confinement until
the execution of the death penalty or the inmate’s lawful
discharge from custody pursuant to section 4303 of the Prisons
and Parole code, DOC is required to keep [the inmate] in
solitary confinement.”).

IV

The majority also creates for death-row prisoners like
Porter a brand-new constitutional right to escape solitary
confinement. In fashioning this new right, it precipitately veers
into Eighth Amendment territory that we and the Supreme
Court have avoided to date. Moreover, the majority’s holding
on Porter’s Eighth Amendment claim is tantamount to a panel
reversal of our precedential opinion in Peterkin v. Jeffes, 855
F.2d 1021 (3d Cir. 1988).

A

The majority applies the conditions-of-confinement
standard to Porter’s Eighth Amendment claim, concluding that
he has satisfied both its objective and subjective prongs. Maj.
Op. 17. But there are two problems with the majority’s
analysis. First, Porter’s claim does not satisfy the objective

8
prong. Second, his attack on a statutorily required punishment
cannot meaningfully be analyzed under the subjective prong.

The Eighth Amendment prohibits the infliction of
“cruel and unusual punishments.” U.S. Const. amend. VIII. It
applies to the States through the Fourteenth Amendment. See
Robinson v. California, 370 U.S. 660, 675 (1962) (Douglas, J.,
concurring) (citing Louisiana ex rel. Francis v. Resweber, 329
U.S. 459, 463 (1947)). In the mid-twentieth century, the Court
grafted its “evolving standards of decency standard” from
death-penalty cases onto “deprivations that were not
specifically part of the sentence but were suffered during
imprisonment.” Wilson v. Seiter, 501 U.S. 294, 297 (1991)
(describing Estelle v. Gamble, 429 U.S. 97 (1976)).

To succeed on a conditions-of-confinement claim, a
prisoner must show that the conditions involve the
“unnecessary and wanton infliction of pain.” Id. (citation and
emphasis omitted). We analyze a conditions-of-confinement
claim using objective and subjective prongs. Id. at 298. The
objective prong considers whether a punishment contravenes
“the evolving standards of decency that mark the progress of a
maturing society[.]” Hudson v. McMillian, 503 U.S. 1, 8
(1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 346
(1981)).

Under the objective prong, a condition of confinement
(or a combination of conditions) must produce “the deprivation
of a single, identifiable human need such as food, warmth, or
exercise.” Wilson, 501 U.S. at 304. Other basic human needs
identified by the Supreme Court include “shelter, medical care,
and reasonable safety.” DeShaney v. Winnebago Cty. Dep’t of
Soc. Servs., 489 U.S. 189, 200 (1989); see also Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (citations omitted) (noting
that prison officials “must provide humane conditions of
confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care,” and that
they are reasonably safe). The deprivation must be
“sufficiently serious” and “must result in the denial of ‘the
minimal civilized measure of life’s necessities[.]’” Farmer,
511 U.S. at 834 (quoting Wilson, 501 U.S. at 298, and Rhodes,
452 U.S. at 347).

9
 Porter does not identify the deprivation of any basic
human need recognized by the Supreme Court. As the majority
observes, Porter averred that he has experienced “severe
anxiety, depression, panic, paranoia, bipolar mood swings, and
at sometimes [sic] suicidal impulses. Plaintiff regularly takes
depression medication.” Maj. Op. 21 (quoting JA 41). In his
brief, Porter characterizes the “single, identifiable human
need” denied to him as “physical or psychological health,
social interaction, or environmental stimulation.” Appellant’s
Br. at 32. And the majority summarizes dicta from Williams
and other cases describing a purportedly robust scientific
consensus pointing to a substantial risk of psychological harm
caused by solitary confinement. Maj. Op. 18–21.

From these allegations and dicta, the majority concludes
that Porter has satisfied the objective prong of his conditions-
of-confinement claim. Maj. Op. 21.5 But the Supreme Court
has not recognized psychological health, social interaction, or
environmental stimulation as basic human needs in the Eighth
Amendment context. Neither have we.

We have, however, rejected a virtually identical Eighth
Amendment challenge to the conditions of confinement on
Pennsylvania’s death row. In Peterkin, we held that the totality
of conditions experienced by death row prisoners—isolation
for twenty-two hours per day in cells measuring between sixty
and seventy-one square feet, allegedly causing psychological
and physical deterioration without penological justification—

5
The majority also quotes Justice Kennedy’s concurring
opinion in Davis v. Ayala, 135 S. Ct. 2187, 2208–10 (2015),
and Justice Breyer’s dissenting opinion in Glossip v. Gross,
135 S. Ct. 2726, 2765 (2015). See Maj. Op. 20–21. To these,
the majority could have added Justice Breyer’s opinions
regarding denial of certiorari in Jordan v. Mississippi, 138 S.
Ct. 2567 (2018), and Ruiz v. Texas, 137 S. Ct. 1246 (2017), and
Justice Sotomayor’s statement respecting the denial of
certiorari in Apodaca v. Raemisch, 139 S. Ct. 5 (2018). But
those impassioned dissents and statements do not support the
majority’s objective prong analysis. If anything, they
underscore the Supreme Court’s long-standing and apparently
determined refusal to expand the Eighth Amendment as the
majority does here.
10
“does not contravene the [E]ighth [A]mendment.” 855 F.2d at
1032. In reaching that conclusion, we emphasized:

The primary responsibility for operating prisons
belongs to prison administrators, to other state law
enforcement officials and to the state legislature. The
[E]ighth [A]mendment does not authorize a federal
court to second guess their decisions nor is it our role to
express our agreement or disagreement with their
overall policies or theories of prison administration, as
long as we find no constitutional violation.

Id. at 1032–33 (citation omitted). Peterkin remains binding
precedent,6 and as I explain below the majority’s attempt to
distinguish it is deeply unpersuasive. The result is a sub silento
panel reversal.

6
Peterkin fits comfortably within a long line of our cases
rejecting Eighth Amendment challenges to the use of solitary
confinement in various contexts. See, e.g., Griffin v. Vaughn,
112 F.3d 703, 709 (3d Cir. 1997) (no Eighth Amendment
violation when prisoner’s administrative segregation was not
accompanied by the denial of basic human needs, such as food,
clothing, shelter, sanitation, medical care, or personal safety);
Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992)
(“Segregated detention [as discipline] is not cruel and unusual
punishment per se, as long as the conditions of confinement
are not foul, inhuman[,] or totally without penological
justification.”); Gibson v. Lynch, 652 F.2d 348, 352 (3d Cir.
1981) (solitary confinement for more than 30 days “cannot be
considered to trench upon [plaintiff’s] [E]ighth [A]mendment
rights”); United States ex rel. Tyrrell v. Speaker, 471 F.2d
1197, 1202 (3d Cir. 1973) (“We have said that solitary
confinement does not, in itself, violate the Eighth
Amendment[.]”); Gray v. Creamer, 465 F.2d 179, 187 (3d Cir.
1972) (punitive or administrative segregation did “not clearly
present the extreme type of situation required to establish an
Eighth Amendment violation”); Ford v. Bd. of Managers of
N.J. State Prison, 407 F.2d 937, 940 (3d Cir. 1969) (“Solitary
confinement in and of itself does not violate Eighth
Amendment prohibitions[.]”).
11
 1

First, the majority asserts that Porter is making an as-
applied challenge to his specific conditions of confinement,
whereas Peterkin involved a facial challenge to death row
conditions generally. See Maj. Op. 22–23. This argument
mischaracterizes Porter’s complaint, and, in any event, the
alleged distinction is constitutionally meaningless.

The majority’s framing of Porter’s Eighth Amendment
claim is very different from his actual claim set forth in the
Complaint. According to the majority, Porter claims that
“Defendants violated his Eighth Amendment right to be free
from cruel and unusual punishment by subjecting him to
solitary confinement for thirty-three years.” Maj. Op. 16. But
in Count IV of his Complaint—the only cause of action
asserting an Eighth Amendment violation—Porter neither
attacks any specific conditions of his confinement nor
mentions his thirty-three years on death row. Nor does he
complain of the deprivation of a basic human need, which is
the predicate for any conditions-of-confinement claim. See
Wilson, 501 U.S. at 304–05. Instead, he merely repackages his
Williams-based procedural due process claim, giving it an
Eighth Amendment label.

Specifically, Porter alleges that Defendants violated his
right to be free from cruel and unusual punishment by failing
“to remove [him] from ‘death row’ as housed in solitary
confinement once the sentence of death had been vacated.” JA
44 (Cmpl. ¶ 44) (emphasis added). He further alleges that
Defendants violated his Eighth Amendment rights by keeping
him “on ‘death row’ and in solitary confinement despite
Plaintiff’s sentence of death being vacated . . . .” Id. (Cmpl. ¶
46) (emphasis added). The allegations in these paragraphs are
mostly verbatim restatements of the allegations in Count III,
the procedural due process claim. See id. at 43 (Cmpl. ¶¶ 34–
36).

In the paragraphs of Porter’s Complaint common to all
counts, he avers a number of “well established” conditions of
solitary confinement—conditions that are the same for death-
row inmates throughout Pennsylvania and virtually identical to
those challenged in Peterkin. Id. at 40 (Cmpl. ¶ 12); cf.

12
Peterkin, 855 F.2d at 1026–31 (describing challenged
conditions of confinement). He then alleges, not that those
conditions or any combination of them is cruel and unusual,
but that his continued confinement in such “well established”
conditions is no longer justified. In support of that allegation,
he specifically cites and quotes Williams. JA 40 (Cmpl. ¶¶ 13,
14).

In short, Porter has not asserted an as-applied
conditions-of-confinement claim based on thirty-three years in
solitary confinement. His Eighth Amendment claim is
analytically identical to his procedural process claim: He
asserts that it is cruel and unusual for Defendants to keep him
on death row after his sentence of death was allegedly vacated.
Indeed, all of the counts in Porter’s complaint sound in the
exact same Williams-based theory.7

Even if Porter had asserted a conditions-of-confinement
claim, it is readily apparent from his complaint and from the
majority’s sweeping opinion that he does not raise an as-
applied Eighth Amendment challenge. Porter does not
complain that the Commonwealth’s particular application of its
death row statute to him has deprived him of a constitutional
right. And he does not complain that the “well established”
conditions of solitary confinement in Pennsylvania are
somehow different for him than for any other death row
inmate. If, as the majority concludes, Porter’s continued
maintenance in solitary confinement violates the Eighth
Amendment, then its holding applies to all similarly situated
Pennsylvania inmates. There would be no set of as-applied
circumstances under which their solitary confinement could be
valid.8 See Const. Party of Pa. v. Cortes, 824 F.3d 386, 394 (3d

7
Even if Williams applied to this case, which it does not for
reasons I explain above, Porter’s Williams-based Eighth
Amendment claim is bootless. Williams considered only a
procedural due process claim and did not undertake any Eighth
Amendment analysis. That was not an oversight; plaintiffs
waived their Eighth Amendment claim on appeal. Williams,
848 F.3d at 553 n.8.
8
The majority’s only discussion of Porter’s particular situation
is a passing reference to his conclusory allegations of harm in
the complaint. Maj. Op. 21. But the majority’s objective prong
13
Cir. 2016) (discussing as-applied and facial challenges);
United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010)
(same).

Finally and most importantly, even if Porter’s Eighth
Amendment claims really were as-applied, rather than a facial
attack on Pennsylvania’s death row statute, it would not matter
for purposes of the constitutional analysis. “[C]lassifying a
lawsuit as facial or as-applied affects the extent to which the
invalidity of the challenged law must be demonstrated and the
corresponding ‘breadth of the remedy[.]’” Bucklew v.
Precythe, 139 S. Ct. 1112, 1127 (2019) (citation omitted). But
whether a challenge is facial or as-applied “does not speak at
all to the substantive rule of law necessary to establish a
constitutional violation.” Id. (citation omitted). “Surely it
would be strange for the same words of the Constitution to bear
entirely different meanings depending only on how broad a
remedy the plaintiff chooses to seek.” Id. at 1127–28 (citations
omitted). For all of these reasons, the majority’s attempt to
distinguish Peterkin’s Eighth Amendment holding based on
the nature of the remedy sought by Porter is specious.

2

The majority next attempts to distinguish Peterkin by
observing that Porter “has spent substantially more time in
solitary confinement on death row than the Peterkin plaintiffs.”
Maj. Op. 24. Again, Porter’s Eighth Amendment claim does
not challenge the overall duration of his solitary confinement
but only his continued solitary confinement after 2003, based
on a misreading of Williams.

In any event, the majority makes no attempt to show
why Porter’s longer stay on death row is constitutionally
significant or legally distinguishes Peterkin’s Eighth
Amendment holding. Because this section of the majority’s
opinion is no longer tethered to Williams’s procedural due
process framework, it appears to hold generally—but with

analysis relies most heavily on scientific studies that purport to
describe psychological findings for all inmates in any type of
solitary confinement, no matter where they are incarcerated.
Maj. Op. 18–21.
14
almost no constitutional analysis—that long-term solitary
confinement is objectively cruel and unusual even for inmates
serving an active death sentence. See Maj. Op. 24–25. That is
an unwarranted leap from our Eighth Amendment
jurisprudence in this area, including Palakovic v. Wetzel, 854
F.3d 209 (2017) (finding that prison officials acted with
deliberate indifference by repeatedly subjecting a mentally ill
and suicidal inmate serving a sentence for burglary to solitary
confinement, abusive staff, and inadequate to non-existent
mental health care), and from any guidance offered by the
Supreme Court.

Still, it is indeed troubling that seventeen years after the
habeas court granted relief with respect to Porter’s death
sentence and stayed its vacatur order pending appeal, he
perseveres in solitary confinement and the cross-appeals
remain undecided. Porter’s habeas appeal was docketed on
August 14, 2003. Over the next three years, Porter filed eight
motions to stay or temporarily toll briefing, all of which were
granted. On November 9, 2006, Porter filed a motion to hold
his case in abeyance pending the Pennsylvania state courts’
disposition of his petitions for post-conviction relief. We
granted Porter’s motion over the government’s opposition,
held the case in abeyance, and required a status report every
sixty days. From April 2007 to date, Porter’s counsel has duly
filed status reports every sixty days, advising this Court that his
PCRA petition remains pending before the state PCRA court
but never asking this Court to resolve his case. At the same
time, Porter has apparently argued to the PCRA court that it
lacked authority to rule on his PCRA petition until his federal
proceedings were completed. The result is that both this Court
and the PCRA court have held their proceedings in abeyance
out of deference to each other, creating an exquisite catch-22
gridlock now approaching two decades.

In Commonwealth v. Porter, the Supreme Court of
Pennsylvania recounted the history of this multi-jurisdictional
procedural morass. That court opined that Porter’s litigation
“strategy—pursued in both state and federal court—has been
to avoid having any of [his] collateral claims decided any time
soon.” 35 A.3d at 15. And in Commonwealth v. Spotz, Chief
Justice Castille filed a concurring opinion describing in detail
and sharply criticizing Porter’s litigation strategy, which has

15
“assured a de facto, perpetual stay of execution.” 18 A.3d 244,
347 (Pa. 2011) (Castille, C.J., concurring). The principle of
comity counsels that we at least respectfully consider the
Pennsylvania Supreme Court’s writings on a matter of direct
import to this case.

Porter asserts that his maintenance in solitary
confinement after 2003 violates his Eighth Amendment right
against cruel and unusual punishment. In evaluating the
temporal aspect of that claim, most people exercising common
sense would reasonably wonder whether Porter’s own strategic
decisions may have contributed to his plight. Common sense
aside, because legal relevance concerns probabilistic
tendencies and the consequences of one’s actions, Porter’s
litigation choices and actions are surely relevant to the length
of his time in solitary confinement. See Fed. R. Evid. 401.

And because the law assumes that moral actors are
responsible for their voluntary actions, courts have uniformly
rejected prisoners’ arguments that delay caused by their own
extended appeals creates an Eighth Amendment violation. See
Chambers v. Bowersox, 157 F.3d 560, 570 (8th Cir. 1998);
Stafford v. Ward, 59 F.3d 1025, 1028 n.5 (10th Cir. 1995);
Turner v. Jabe, 58 F.3d 924, 928–29 (4th Cir. 1995); McKenzie
v. Day, 57 F.3d 1461, 1466 (9th Cir. 1995); Fearance v. Scott,
56 F.3d 633, 639 (5th Cir. 1995); Porter v. Singletary, 49 F.3d
1483, 1485 (11th Cir. 1995). So there is obvious merit in
considering the reasons for delay.

I wholeheartedly affirm that no litigant should be
criticized for vigorously pursuing his appeal rights. But
acknowledging responsibility is different than criticism. And
the history of this particular appeal is extraordinary, to say the
least. The salient issue, which the majority avoids, is whether
Porter—perhaps through less-than-candid maneuvering in two
jurisdictions—has thwarted this Court’s disposition of his
appeal precisely because he does not wish to pursue his appeal
rights. If so, the majority’s argument that Peterkin is
distinguishable because Porter has spent relatively more time
on death row rings especially hollow.

16
 3

Finally, the majority attempts to distinguish Peterkin
because the “research and caselaw” have allegedly “advanced
considerably” since that case was decided. Maj. Op. 24. Even
if that were correct, it is insufficient reason for a panel to
overrule a decision with which it no longer agrees. 3d Cir.
I.O.P. 9.1 (2018). But it is incorrect.

The majority overstates the extent to which caselaw has
“advanced” in the direction that the majority perceives. The
Supreme Court has never held that solitary confinement
violates the Eighth Amendment, and it continues to rebuff
fervid invitations to do so. See supra note 5. Our Court has not
held that the conditions of confinement on Pennsylvania’s
death row are unconstitutional, and we have a long train of
decisions to the contrary. See supra note 6 (collecting cases).
And we are not an outlier. “The practice of solitary
confinement remains unrestrained by the Constitution in just
about all forms, imposed on just about all groups of prisoners,
in just about all jurisdictions in America.” Andrew Leon
Hanna, The Present Constitutional Status of Solitary
Confinement, 21 U. Pa. J. Const. L. Online 1, 5 (2019). “[T]he
Eighth Amendment has done little to no work in the area of
solitary confinement”; indeed, “[i]f there are any true
substantive limitations on the conditions presented by solitary
or the length of time that a person may be placed in extreme
isolation, they have not come from constitutional law.”
Alexander A. Reinert, Solitary Troubles, 93 Notre Dame L.
Rev. 927, 932, 944 (2018).

In support of its assertion that caselaw has “advanced
considerably” since Peterkin, the majority cites one case from
another circuit, Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019).
Clarke was the first and remains the only Court of Appeals
decision holding that solitary confinement violates the Eighth
Amendment. See Maj. Op. 38 (“But only one circuit has [found
an Eighth Amendment violation] . . . in connection with
solitary confinement on death row.”). But its relevance to
Porter’s case is limited because Virginia—unlike
Pennsylvania—did not statutorily require that death-sentenced
inmates remain in solitary confinement. Rather, the decision
was left solely to the discretion of the state department of

17
corrections. See Va. Code Ann. § 53.1-234. Also, the state
defendants inexplicably waived their obligation to adduce
legitimate penological considerations justifying the prison
officials’ discretionary decisions to isolate death row prisoners.
And the state defendants did this notwithstanding the court’s
acknowledgement that “a legitimate penological justification
can support prolonged detention of an inmate in segregated or
solitary confinement, similar to the challenged conditions on
Virginia’s death row, even though such conditions create an
objective risk of serious emotional and psychological harm.”
Clarke, 923 F.3d at 362–63. One easily distinguishable case in
another jurisdiction hardly constitutes a sea change in the law,
so I disagree that the caselaw has “advanced considerably.”

At bottom, the majority jettisons Peterkin because of
“scientific and medical research” which allegedly provides
insight about solitary confinement that we lacked when
deciding Peterkin (1988), or for that matter Young (1992) and
Griffin (1997). Maj. Op. 18–21. That seems to me a dubious
proposition. Long before such research emerged, Americans
well-understood the baleful effect of solitary confinement on
some inmates. Alexis de Tocqueville vividly wrote about the
American practice in 1833,9 as did Charles Dickens in 1842.10
And in 1890, the Supreme Court pointedly remarked:

9
“This experiment, of which the favourable results had been
anticipated, proved fatal for the majority of prisoners. It
devours the victim incessantly and unmercifully; it does not
reform, it kills. The unfortunate creatures submitted to this
experiment wasted away . . . .” Craig Haney & Mona Lynch,
Regulating Prisons of the Future: A Psychological Analysis of
Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc.
Change 477, 484 (1997) (citing Torsten Eriksson, The
Reformers, An Historical Survey of Pioneer Experiments in the
Treatment of Criminals 49 (1976) (quoting Alexis de
Tocqueville and Gustave de Beaumont)).
10
“The system here, is rigid, strict, and hopeless solitary
confinement. I believe it, in its effects, to be cruel and wrong
. . . . [T]here is a depth of terrible endurance in it which none
but the sufferers themselves can fathom, and which no man has
a right to inflict upon his fellow-creature. I hold this slow and
daily tampering with the mysteries of the brain, to be
18
 A considerable number of the prisoners fell, after
even a short [solitary] confinement, into a semi-
fatuous condition, from which it was next to
impossible to arouse them, and others became
violently insane; others still, committed suicide;
while those who stood the ordeal better were not
generally reformed, and in most cases did not
recover sufficient mental activity to be of any
subsequent service to the community.

In re Medley, 134 U.S. 160, 168 (1890).

Throughout the twentieth century, similar criticisms
were raised, and political and legal challenges were asserted
against the use of solitary confinement. Those controversies
attracted the attention of psychologists and psychiatrists who
“wrote and testified about the nature, magnitude, and long-
term consequences of these acute negative effects.” Craig
Haney & Mona Lynch, Regulating Prisons of the Future: A
Psychological Analysis of Supermax and Solitary
Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 491
(1997).

So while scientific articles may have proliferated in
recent years, we have not witnessed some kind of Copernican
shift in our understanding. The risk of potential harm from

immeasurably worse than any torture of the body: and because
its ghastly signs and tokens are not so palpable to the eye and
sense of touch as scars upon the flesh; because its wounds are
not upon the surface, and it extorts few cries that human ears
can hear; therefore I the more denounce it, as a secret
punishment which slumbering humanity is not roused up to
stay . . . . I solemnly declare, that with no rewards or honours
could I walk a happy man beneath the open sky by day, or lie
me down upon my bed at night, with the consciousness that
one human creature, for any length of time, no matter what, lay
suffering this unknown punishment in his silent cell, and I the
cause, or I consenting to it in the least degree.” Eleanor
Umphres, Note, Solitary Confinement: An Unethical Denial of
Meaningful Due Process, 30 Geo. J. Legal Ethics 1057, 1062
(2017) (quoting Charles Dickens, American Notes for General
Circulation 54 (1867)).
19
solitary confinement (as well as the obvious possible Eighth
Amendment implications) has long been well-known. More
pointedly, it was not lost on our Court when we decided
Peterkin. We described the plaintiffs’ allegations of insanity,
suicide, lethargy, anger, and psychological deterioration as
“deeply disturbing” though not unconstitutional. Peterkin, 855
F.2d at 1033.

None of the “scientific and medical research” upon
which the majority relies so heavily was included in the record
of this case. So this panel has not even seen the relevant studies.
Instead, the majority simply declares that the risk of harms
discussed in unidentified scientific and medical research is
“well established,” citing dicta from other cases and an amicus
brief. Maj. Op. 18–21. Thus, the evidentiary burden is neatly
flipped in this case: The substantial risk of harm that Porter
must show is simply presumed as though it were judicially
noticeable.

I believe we should at least attend to the scientific
research rather than merely accept descriptions of it, sight-
unseen, as settled adjudicative fact. If we did, we may be
surprised to find that the allegedly robust consensus is a bit
overstated.

For example, in July 2015, President Obama “directed
Attorney General Loretta E. Lynch and the Justice Department
to review the overuse of solitary confinement across U.S.
prisons.”11 As part of that review, the U.S. Department of
Justice’s National Institute of Justice12 issued a March 2016

11
Barack Obama, Opinion, Why We Must Rethink Solitary
Confinement, Wash. Post, Jan. 25, 2016,
https://www.washingtonpost.com/opinions/barack-obama-
why-we-must-rethink-solitary-
confinement/2016/01/25/29a361f2-c384-11e5-8965-
0607e0e265ce_story.html (last visited July 28, 2020).
12
“The National Institute of Justice (NIJ) focuses on research,
development, and evaluation of crime control and justice
issues. NIJ provides objective, independent, evidence-based
knowledge and tools to meet the challenge of criminal justice,
particularly at local and state levels.” See
20
paper titled “Administrative Segregation in U.S. Prisons,” in
which it surveyed the research on the psychological effects of
solitary confinement and other types of administrative
segregation as practiced throughout the United States. See
https://www.ncjrs.gov/pdffiles1/nij/249749.pdf (last visited
July 28, 2020). Here are some of the findings in the NIJ report:

• “The only clear statement that can be
made about the body of literature
assessing the psychological effects of
solitary confinement is that researchers
using different methods to study different
populations have come to different
conclusions about the psychological
effects on inmates.” Id. at 16.

• “Although rarely acknowledged, the
psychological/psychiatric effects research
frequently relies on a large body of
literature on the effects of sensory
deprivation. . . . [I]t is often taken for
granted that isolation will have severe and
lasting detrimental effects on the
psychological well-being of all those
exposed to it, even though the evidence in
this area does not always bear out this
assumption . . . .” Id. n.10.

• “Other respected scholars have also been
less than convinced by the accumulated
evidence regarding psychological effects.
Bonta and Gendreau (1990), for example,
argued that little evidence exists of
deteriorating mental health among
inmates, emphasizing that ‘long-term
imprisonment and specific conditions of
confinement such as solitary, under
limiting and humane conditions, fail to
show any sort of profound detrimental
effects.’” Id. at 17.

https://www.ojp.gov/about/offices/national-institute-justice-
nij (last visited July 28, 2020).
21
• Researchers’ “findings could just as
easily be interpreted as demonstrating that
incarceration in and of itself has
damaging effects on the mental health of
individuals subjected to it, especially
initially.” Id. at 18.

• Meta-analytic scholars “found only weak
effects of solitary confinement on inmate
outcomes (most of which were
psychological) and concluded that their
meta-analytic review did not find support
for the long-argued contention that
solitary confinement has lasting
psychological effects on those subjected
to it.” Id. at 22.

• Findings from recent meta-analyses “cast
some doubts about [solitary confinement]
being as devastating to inmates as has
often been portrayed in the media and by
some human rights organizations,
activists, and scholars who vehemently
oppose the practice on moral/ethical
grounds . . . .” Id.

• “After a thorough review of the extant
literature [on the practice of all types of
administrative segregation throughout the
United States], it is clear that, in 2015, the
answers continue to be few and the
questions many. It is equally clear that
when researchers have disagreed, and in
this area they have tended to disagree
passionately, they have not always been
speaking the same language or
conducting research with equivalent
populations.” Id. at 23.

• “What is more, for many researchers
studying solitary confinement, the
practice raises not only empirical
22
 questions but also moral and ethical
concerns that will persist regardless of the
breadth or depth of the evidence base.
Across a literature replete with highly
charged emotions, interpreting the
evidence and separating evidence from
strongly held beliefs have become
exceptionally difficult.” Id.

These bullet points are not fully representative of the
NIJ report. It also finds, for example, that “a substantial body
of work has established that solitary confinement can have
damaging psychological effects, particularly when that
confinement involves near complete isolation and sensory
deprivation, or when the term of such confinement is
extended.” Id. at 17. But my point is that the purported
“consensus” of recent medical and scientific research is not so
“robust” and univocal as to justify overturning Peterkin, just
because that case was decided in 1988. At least according to
the NIJ report, the scientific evidence is ambiguous, contested,
and ideologically charged. But the majority does not even
acknowledge the ongoing debate, choosing instead to repeat
broad, one-sided pronouncements.

B

The subjective prong of the conditions-of-confinement
standard requires a prisoner to establish that prison officials
acted with deliberate indifference. Wilson, 501 U.S. at 302–03.
A prison official is deliberately indifferent when he “knows of
and disregards an excessive risk to inmate health or safety[.]”
Farmer, 511 U.S. at 837. The deliberate indifference test is
thus individualized for each prison official responsible for
inmates’ care. The majority asserts that Porter has satisfied the
subjective prong because officials from Pennsylvania’s
Department of Corrections are aware of risks that accompany
solitary confinement. Maj. Op. 25–30.

But Porter has not been in solitary confinement because
of the discretionary decisions or policies of DOC officials
acting with the “requisite culpable state of mind.” See Wilson,
501 U.S. at 297. Instead, the citizens of Pennsylvania, through
their elected representatives in the General Assembly, have

23
determined that he must remain in solitary confinement while
on death row. See 61 Pa. Cons. Stat. § 4303. For this reason, I
believe the majority’s entire discussion of the subjective prong
is ill-considered.

As the Court noted in Wilson, Estelle first extended
Eighth Amendment protections to “some deprivations that
were not specifically part of the sentence but were suffered
during imprisonment.” 501 U.S. at 297 (emphasis added).
Accordingly, the subjective prong is inapplicable when, as
here, the challenged condition is “formally meted out as
punishment by the statute or the sentencing judge.” Id. at 300;
see also Thaddeus-X v. Blatter, 175 F.3d 378, 401 (6th Cir.
1999) (“All Eighth Amendment claims have an objective
component, and when ‘the pain inflicted is not formally meted
out as punishment by the statute or the sentencing judge, some
mental element must be attributed to the inflicting officer’ in
order to make out the subjective component of an Eighth
Amendment violation.” (emphasis added) (quoting Wilson,
501 U.S. at 300)).

The Supreme Court has applied the conditions-of-
confinement standard to medical care;13 disciplinary (i.e.,
discretionary) solitary confinement;14 double celling;15 injuries
caused by prison guards;16 and injuries caused by other
inmates.17 None of those cases dealt with a statutorily imposed
condition of punishment, and for good reasons. The
impossibility of imputing subjective intention to a collective
body is well-known. See generally John F. Manning, Inside
Congress’s Mind, 115 Colum. L. Rev. 1911, 1918–21 (2015);
Kenneth A. Shepsle, Congress Is a “They,” Not an “It”:
Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239
(1992). And Wilson makes clear that the subjective prong
applies only to “Eighth Amendment claims based on official
conduct that does not purport to be the penalty formally

13
See Estelle v. Gamble, 429 U.S. 97 (1976).
14
See Hutto v. Finney, 437 U.S. 678 (1978).
15
See Rhodes v. Chapman, 452 U.S. 337 (1981).
16
See Hudson v. McMillian, 503 U.S. 1 (1992); Whitley v.
Albers, 475 U.S. 312 (1986).
17
See Farmer v. Brennan, 511 U.S. 825 (1994); Helling v.
McKinney, 509 U.S. 25 (1993).
24
imposed for a crime[.]” Wilson, 501 U.S. at 302. Because the
majority elides the critical distinction between the
discretionary acts of deliberately indifferent prison officials
and the faithful enforcement of a law enacted by the
Pennsylvania Legislature, its subjective-prong analysis is
unpersuasive.

V

I agree that Porter’s substantive due process claim is
barred under the more-specific-provision rule. See Maj. Op.
31–33. So I concur with Part III.C. of the majority’s opinion.

VI

The majority holds that qualified immunity is
unavailable to Defendants because Porter’s procedural-due-
process right was clearly established by Williams. See Maj. Op.
36. I disagree for all of the reasons stated in Part II above.
Rather, I believe the majority has created a new procedural-
due-process right to be free from solitary confinement
notwithstanding an active death sentence. Because that right
was not clearly established, Defendants are entitled to qualified
immunity on Porter’s procedural due process claim.

VII

Assuming for the sake of argument that Porter’s Eighth
Amendment right to be free from cruel and unusual
punishments was violated, I agree that Defendants are entitled
to qualified immunity. See Maj. Op. 40. I therefore concur with
Part III.D.2. of the majority opinion insofar as it holds that
“Defendants are . . . entitled to qualified immunity on Porter’s
Eighth Amendment claim.” Id.

* * *

This opinion explains my disagreement with the
majority’s opinion and judgment. It is not about the merits or
demerits of solitary confinement. Whether to use solitary
confinement at all—and if so, under what circumstances, for
which prisoners, the specific conditions of confinement, and
the duration of such confinement—is a policy judgment
bristling with moral, political, penological, institutional, and

25
religious or philosophical questions. Such policy judgments
are reserved for the Legislative Branch18—and the
Pennsylvania Legislature has made them, at least for inmates
who, like Porter, have been sentenced to death following a
conviction of murder. For the reasons discussed herein, I
respectfully dissent in part from the majority’s opinion because
I believe it misconstrues the applicable law.

18
See Bell v. Wolfish, 441 U.S. 520, 548 (1979) (The
“operation of our correctional facilities is peculiarly the
province of the Legislative and Executive Branches of our
Government, not the Judicial.” (citation omitted)); see
generally Bradford R. Clark, Constitutional Structure, Judicial
Discretion, and the Eighth Amendment, 81 Notre Dame L. Rev.
1149 (2006).
26