19-2858-pr
Reynolds v. Quiros, et al.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 19-2858-pr
RICHARD REYNOLDS,
Plaintiff-Appellee,
v.
ANGEL QUIROS, LEO ARNONE, EDWARD MALDONADO, GERARD GAGNE,
MARK FRAYNE, SCOTT SEMPLE, WILLIAM FANEUFF, in their Individual
and Official Capacities,
Defendants-Appellants. *
On Appeal from the United States District Court
for the District of Connecticut
ARGUED: MAY 13, 2020
DECIDED: MARCH 11, 2021
The Clerk of Court is directed to amend the official caption to conform to
*
the above.
Before: KEARSE and CABRANES, Circuit Judges. †
Defendants-Appellants Angel Quiros, Leo Arnone, Edward
Maldonado, Gerard Gagne, Mark Frayne, Scott Semple, and William
Faneuff, who are current and former Connecticut Department of
Correction officials, appeal from an August 27, 2019 judgment and
permanent injunction entered in the United States District Court for
the District of Connecticut (Stefan R. Underhill, Chief Judge) principally
granting Plaintiff-Appellee Richard Reynolds’ motion for summary
judgment, and denying Defendants’ motion for summary judgment.
Reynolds, a prisoner serving a life sentence since 1999 in Connecticut’s
Northern Correctional Institution, brought the underlying action
pursuant to 42 U.S.C. § 1983, alleging that the conditions of his
confinement violate his rights under Article I, Section 10 (the Bill of
Attainder Clause) of the Constitution, as well as the Eighth and
Fourteenth Amendments of the Constitution. For the reasons we set
forth below, we AFFIRM IN PART and VACATE IN PART the
August 27, 2019 judgment of the District Court, AFFIRM IN PART
and VACATE IN PART the August 27, 2019 permanent injunction,
† Judge Peter W. Hall, originally assigned to the panel, did not participate
in consideration of this decision. The two remaining members of the panel, who
are in agreement, have decided this case in accordance with Second Circuit Internal
Operating Procedure E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone, 140
F.3d 457, 458 (2d Cir. 1998).
2
and REMAND the cause to the District Court for further proceedings
consistent with this opinion.
Judge Kearse concurs fully in the opinion and judgment of the
Court and also files a separate opinion.
BRETT DIGNAM (Sarah Hong Lin, Caleb
King, and Mary Marshall, Law Students
appearing under Local Rule 46.1(e), on the
brief), Morningside Heights Legal Services
Inc., New York, NY, for Plaintiff-Appellee.
STEVEN R. STROM, Assistant Attorney
General (Clare Kindall, Solicitor General,
and Madeline A. Melchionne, Assistant
Attorney General, on the brief) for William
Tong, Attorney General of Connecticut,
Hartford, CT, for Defendants-Appellants.
JOSÉ A. CABRANES, Circuit Judge:
Defendants-Appellants Angel Quiros, Leo Arnone, Edward
Maldonado, Gerard Gagne, Mark Frayne, Scott Semple, and William
Faneuff (jointly, “Defendants”), who are current and former
Connecticut Department of Correction officials, appeal from an
August 27, 2019 judgment and permanent injunction entered in the
3
United States District Court for the District of Connecticut (Stefan R.
Underhill, Chief Judge) principally granting Plaintiff-Appellee Richard
Reynolds’ (“Reynolds”) motion for summary judgment, and denying
Defendants’ motion for summary judgment. Reynolds, a prisoner
serving a life sentence since 1999, latterly in Connecticut’s Northern
Correctional Institution (“NCI”), brought the underlying action
pursuant to 42 U.S.C. § 1983, alleging that the conditions of his
confinement violate his constitutional rights under Article I, Section 10
(the Bill of Attainder Clause) of the United States Constitution, 1 as well
as the Eighth 2 and Fourteenth 3 Amendments of the Constitution.
On appeal, Defendants challenge the District Court’s grant of
summary judgment, arguing that the District Court: (1) improperly
made credibility determinations and decided triable issues of material
facts that the parties dispute; (2) erred in concluding as a matter of law
that Reynolds’ conditions of confinement violate the Eighth
1 “No State shall … pass any Bill of Attainder ….” U.S. Const. art. I, § 10,
cl. 1.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
2
and unusual punishments inflicted.” U.S. Const. amend. VIII. See Phelps v. Kapnolas,
308 F.3d 180, 185 (2d Cir. 2002) (noting that the Eighth Amendment “applies to the
States through the Fourteenth Amendment . . . and enjoins them from inflicting
cruel and unusual punishments.” (internal citation and quotation marks omitted));
accord Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality opinion)
(holding that the Fourteenth Amendment incorporates the Eighth Amendment’s
protection from cruel and unusual punishment).
“No State shall . . . deprive any person of life, liberty, or property, without
3
due process of law; nor deny to any person within its jurisdiction the equal
protection of the law.” U.S. Const. amend. XIV, § 1.
4
Amendment and the Due Process and Equal Protection Clauses of the
Fourteenth Amendment; and (3) erred in concluding as a matter of law
that the Connecticut statute governing Reynolds’ conditions of
confinement is an unconstitutional “Bill of Attainder” under Article I,
Section 10 of the Constitution.
Defendants also argue that the permanent injunction entered by
the District Court is overly broad in violation of the Prison Litigation
Reform Act, 4 and that the District Court erred in holding that
Defendants were not entitled to qualified immunity.
We hold that the District Court erred by deciding disputed
issues of material facts in granting summary judgment in Reynolds’
favor. We affirm, however, the judgment of the District Court insofar
as it concluded that Conn. Gen. Stat. § 18-10b is an unconstitutional
bill of attainder, and that Defendants violated Reynolds’ rights under
the Equal Protection Clause of the Fourteenth Amendment.
I. BACKGROUND
We draw the facts, which are largely undisputed except as
specified below, from the District Court’s August 27, 2019
Memorandum of Decision 5 (“MOD”) and from the record before us.
4 18 U.S.C. §§ 3626(a)(1)(A), et seq.
5 See generally Reynolds v. Arnone, 402 F. Supp. 3d 3 (D. Conn. 2019).
5
A. Factual Background
Reynolds was convicted of the aggravated murder of Waterbury
Police Officer Walter Williams and was sentenced to death in 1995. The
Connecticut Supreme Court upheld Reynolds’ sentence in 2003.6 In
2012, the Connecticut Legislature adopted Conn. Gen. Stat. § 18-10b
(“Section 18-10b”), 7 which abolished the death penalty prospectively
and provided the terms and conditions of imprisonment to replace the
death penalty for convictions for capital felonies, including
confinement in a Special Circumstances Unit (“Special Circumstances
6 See generally State of Conn. v. Reynolds, 264 Conn. 1 (2003).
7 Section 18-10b provides in relevant part:
(a) The Commissioner of Correction shall place an inmate on special
circumstances high security status and house the inmate in
administrative segregation until a reclassification process is
completed under subsection (b) of this section, if (1) the inmate is
convicted of the class A felony of murder with special circumstances
committed on or after April 25, 2012, under the provisions of section
53a-54b in effect on or after April 25, 2012, and sentenced to a term
of life imprisonment without the possibility of release, or (2) the
inmate is in the custody of the Commissioner of Correction for a
capital felony committed prior to April 25, 2012, under the
provisions of section 53a-54b in effect prior to April 25, 2012, for
which a sentence of death is imposed in accordance with section 53a-
46a and such inmate’s sentence is (A) reduced to a sentence of life
imprisonment without the possibility of release by a court of
competent jurisdiction, or (B) commuted to a sentence of life
imprisonment without the possibility of release.
6
Unit”). 8 In 2015, in a 4-3 decision, the Connecticut Supreme Court
ruled that the death penalty was unconstitutional under the state
constitution as applied to capital sentences already imposed. 9
Subsequently, in 2016, Reynolds was re-sentenced under Section 18-
10b to life imprisonment without the possibility of release, and subject
to the conditions of confinement prescribed by that statute. 10
B. Procedural History
Reynolds filed a pro se complaint in the District Court on
October 4, 2013. Discovery was conducted and later reopened after
counsel for Reynolds was appointed. On June 29, 2017, Reynolds filed
a Second Amended Complaint (the “SAC”), which was followed by
additional discovery. Both parties cross-moved for summary
judgment on November 9, 2018, seeking judgment as a matter of law
on all issues and claims presented by the pleadings.
On August 27, 2019, the District Court issued its MOD granting
Reynolds’ motion for summary judgment and denying Defendants’
motion for summary judgment on qualified immunity and exhaustion
grounds. The District Court concluded, inter alia, that the prison
8See App’x 561-565, Joint Local Rule 56(a) Statement of Stipulated
Undisputed Facts (describing generally the conditions in the Special Circumstances
Unit).
9 See State of Conn. v. Santiago, 318 Conn. 1 (2015).
10See Reynolds v. Comm’r of Correction, 321 Conn. 750, 765 (2016) (affirming
the judgment of the habeas court but vacating Reynolds’ death sentence); see also
Notes 7 and 8, ante.
7
officials at NCI “were aware of the mental health risks associated with
prolonged isolation.” 11 Accordingly, the District Court held that the
officials “knew or reasonably should have known of the serious risks
of harm to Reynolds from his conditions of confinement; [and] their
failure to ameliorate those conditions reflects deliberate indifference”
to such risks in violation of Reynolds’ Eighth Amendment right to be
free from cruel and unusual punishment. 12
The District Court also entered judgment in Reynolds’ favor on
his due process claim regarding the so-called “classification
hearings”—which prison officials conduct to make an individualized
assessment of risks and needs of prisoners. In doing so, the District
Court found that Defendants failed to provide even minimal due
process protections, and that there was “no evidence in the record to
suggest that Reynolds was provided any advance notice or an
opportunity to be heard during his reclassification process pursuant to
Section 18-10b.” 13
11 Reynolds, 402 F. Supp. 3d at 21.
12Id. at 23. But see Farmer v. Brennan, 511 U.S. 825, 826-37 (1994) (In expressly
rejecting a “purely objective test for determining liability—whether the risk is
known or should have been known,” the Court held that a prison official cannot be
found liable for deliberate indifference under the Eighth Amendment “unless the
official knows of and disregards an excessive risk to inmate health or safety.”). We
do not comment further in this opinion on the District Court’s legal analysis on
Reynolds’ Eighth Amendment claim. See Part II.D, post.
13 Id. at 29.
8
The District Court also held that Reynolds had prevailed on his
equal protection claims, concluding that, with respect to classifications
that determine conditions of confinement, Reynolds was similarly
situated to two other inmates, Terry Johnson (“Johnson”) and Eduardo
Santiago (“Santiago”), both convicted murderers formerly sentenced
to death and now serving mandatory life sentences. 14 The District
Court concluded that, with respect to his “Risk Level” and the
conditions of the prison facility, Reynolds “arbitrarily” received a
classification score of “5,” 15 whereas Johnson and Santiago received a
“Level 4 Risk Level, which enables [Johnson and Santiago] to live
among the general population at [MacDougall-Walker Correctional
Institution] 16 and avoid the harsh conditions that Reynolds endures [at
NCI].” 17
14 See id. at 30-33.
15 According to the Department of Correction’s Classification Manual,
“[a]ssignment to Administrative Segregation, Overall Risk Level 5, shall be
considered when any totality of facts, information or circumstances . . . indicates an
immediate threat to safety and/or security of the public, staff or other inmates.”
App’x 912.
16 MacDougall-Walker Correctional Institution (“MacDougall”) is a
“high/maximum security level multi-mission facility for adult males . . . [that]
provides a highly structured environment to manage long-term sentenced
offenders, protective custody offenders and high bond unsentenced offenders with
programs designed to address the needs of each population.” MacDougall-Walker
CI, CT.GOV, https://portal.ct.gov/DOC/Facility/MacDougall-Walker-CI (last visited
November 12, 2020).
17Reynolds, 402 F. Supp. 3d at 33. In contrast to MacDougall, NCI is a “level
five, maximum security institution . . . designated to manage those inmates who
9
Finally, the District Court ruled that Section 18-10b constitutes
an unlawful bill of attainder because, inter alia, “Reynolds was not
afforded a judicial trial regarding the punishment inflicted by Section
18-10b.” 18 The District Court did not reach Reynolds’ ex post facto
claim, 19 and denied Defendants’ claims that they are entitled to
qualified immunity. 20
As a remedy, the District Court entered a Permanent Injunction
Order (“PIO”) enjoining Department of Correction officials:
(1) From placing Reynolds in [“]special circumstance[s] high
security status;[”]
(2) From imposing on Reynolds the conditions of more than
twenty-one hours per day alone in his cell, segregation from
have demonstrated a serious inability to adjust to confinement posing a threat to
the safety and security of the community, staff and other inmates, are sentenced to
death, or posses[s] a high bond . . . [that] provides a highly structured, secure and
humane environment while affording inmates an opportunity through positive
behavior and program participation to return to a less restrictive facility.” Northern
CI, CT.GOV, https://portal.ct.gov/DOC/Facility/Northern-CI (last visited March 10,
2021).
18 Id. at 44.
19In his SAC, Reynolds also alleges that the “[e]nactment of [Section 18-10b]
and Defendants’ imposition of its punishment … violate[s] the ex post facto clause
…” App’x 52. See also U.S. Const. art. I, § 10, cl. 1. (“No State shall … pass any … ex
post facto law ….”). Accord Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952)
(Jackson, J.) (“It always has been considered that that which [the ex post facto
provision] forbids is penal legislation which imposes or increases criminal
punishment for conduct lawful previous to its enactment.”).
20 See Reynolds, 402 F. Supp. 3d at 38-39.
10
inmates who are not on special circumstances high security
status, limitation of recreational activity to a maximum of two
hours per day, and no-contact visitation;
(3) From enforcing Connecticut General Statutes Section 18-
10b against any current or future inmate; [and further
directing Defendants]
(4) [To] immediately, and at least every six months thereafter,
provide Reynolds with a meaningful individualized
classification determination using procedures that are the
same or substantially similar to the procedures used for
general population inmates; and
(5) [To] house Reynolds in conditions that are similar to those
of [Johnson and Santiago] at the time [its] Order issued. 21
In timely appealing, Defendants requested a stay of the PIO
pending appeal. Judge Bianco granted a temporary stay on November
1, 2019, pending the decision on the stay motion by a three-judge
motions panel, which granted the stay on January 7, 2020. 22
II. DISCUSSION
We review a grant of summary judgment de novo, construing the
evidence in the light most favorable to the non-movant and drawing
all reasonable inferences in the non-movant’s favor. 23
21 Sp. App’x 58-59.
22 Sp. App’x 73; Dkt. No. 102 (Pooler, Hall, Lohier, Circuit Judges).
23 See Natofsky v. City of New York, 921 F.3d 337, 344 (2d Cir. 2019).
11
A. The District Court’s Application of the Summary Judgment
Standard
A district court may grant summary judgment only where “the
movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 24 In
evaluating a motion for summary judgment, a district court may not
make credibility determinations, or weigh evidence. 25
We agree with Defendants that, in granting summary judgment
to Reynolds, the District Court impermissibly decided disputed issues
of material facts. Specifically, the parties vigorously disagree as to the
precise conditions imposed in the Special Circumstances Unit in which
Reynolds is housed, which in turn has bearing on whether the
conditions may be properly characterized as “solitary confinement.”
This is relevant because if the imposed conditions did constitute
solitary confinement, Reynolds could arguably prevail on his claims
alleging violations of the Eighth Amendment and the Due Process
Clause of the Fourteenth Amendment. In its decision, the District
Court focused on four “core” facts that it characterized as
“undisputed”:
24 Fed. R. Civ. P. 56(a).
25See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge . . . .”).
12
[1] Reynolds is confined to his cell an average of 21 to 22 hours
a day[;]
[2] He is unable to interact with other inmates in general
population[;]
[3] He is unable to physically embrace his visitors[;]
[4] Other than his limited recreation time, professional or
medical visits, and short fifteen-minute increments [sic] to eat
and shower, Reynolds will spend the remainder of his life alone
in a small cell. 26
In their motion for summary judgment, however, Defendants
included voluminous submissions purporting to show that the Special
Circumstances Unit is not, nor even comparable to, “solitary
confinement,” 27 and that any potential differences between the two are
material facts that should be decided by a jury. For example,
Defendants expressly dispute Reynolds’ contentions that he is
26 Reynolds, 402 F. Supp. 3d at 20.
27 In their brief on appeal, Defendants describe what they characterize as
conditions of “true solitary confinement” as found in Wilkinson v. Austin, 545 U.S.
209, 214 (2005), in which the supermax facility in question required “meals in the
cells, no communications by and between inmates, no recreation within the cells,
perpetual lights on in the cells and only one hour a day outside of the cell.”
Appellant’s Br. at 63. Defendants contend that these conditions are not comparable
to those at NCI. Defendants also rely on the expert report of Dr. Gregory Saathoff,
a prison psychiatrist which concluded that the conditions of the Special
Circumstances Unit did not constitute “solitary confinement”—a conclusion based
on comparisons to conditions imposed in other maximum-security prisons and
correctional facilities. See App’x 272-92.
13
“confined to his cell an average of 21 to 22 hours a day,” and that
“other than limited recreation time, professional or medical visits, and
short fifteen-minute increments [sic] to eat and shower … Reynolds
will spend the remainder of his life alone in a small cell.” 28 In our view,
the declarations of Angel Quiros 29 and Gregorio Robles 30 contesting
Defendants’ assertions raise triable issues of fact.
Accordingly, the District Court erred in granting summary
judgment in favor of Reynolds as to his Eighth Amendment and
Fourteenth Amendment Due Process claims because material facts
remain in dispute.
28 Appellee’s Br. at 17; Appellant’s Br. at 19-21.
29 See App’x 118-19, Declaration of District Administrator Angel Quiros
(stating that, when Quiros was warden from July 2009 to July 2011, death row
inmates at NCI “were never held in solitary confinement” because, inter alia,
“[w]hen they went out to recreation, they would be alone in a single controlled
exercise area . . . but they could talk to other inmates who were also out for
recreation at the same time”; death row inmates “could have social visits … as well
as social phone calls”; and that Quiros “added weekend recreation to the schedule
for death row inmates” in order to “increase[] the opportunity for [their] out-of-
cell-time”).
30 See App’x 155, Declaration of Captain Gregorio Robles, Unit Manager
(stating that “[i]nmates classified as special circumstances high security could send
and receive mail to and from outside [NCI]”; “[i]nmates classified as special
circumstances high security are no longer placed in restraints when they leave their
cells”; “special circumstances high security inmates may interact with one
another[,] … can play cards or board games[,] … [and] can make telephone calls or
read books”; “special circumstances high security inmates have multiple
opportunities each day to interact, face to face, with staff and other inmates
assigned to this unit”).
14
B. Bill of Attainder
The question of whether Section 18-10b constitutes a bill of
attainder does not appear on this record to raise any facts in dispute.
Accordingly, we review the decision for errors of law, and we do so de
novo.
The Supreme Court has described a “bill of attainder” as “a law
that legislatively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections of a
judicial trial.” 31 And the Bill of Attainder Clause in Article I, section 10
of the Constitution, as defined by the Supreme Court, prohibits States
from enacting such laws, just as Article I, section 9 prohibits Congress
from adopting such legislation. “[T]he Supreme Court has identified
three elements of an unconstitutional bill of attainder: (1) ‘specification
of the affected persons,’ (2) ‘punishment,’ and (3) ‘lack of a judicial
trial.’” 32
Defendants have interpreted Section 18-10b as applied to
Reynolds to require that Reynolds be permanently placed on Special
Circumstances Unit high security status without the possibility of
release into the general prison population. The statute further requires
that: (1) Reynolds be housed “separate from inmates who are not on
special circumstances high security status”; (2) his “movements be
31 Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1977).
32ACORN v. United States, 618 F.3d 125, 136 (2d Cir. 2010) (quoting Selective
Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847 (1984)).
15
escorted or monitored”; (3) he be moved “to a new cell at least every
ninety days”; (4) “at least two searches of [Reynolds’] cell each week”;
(5) “no contact be permitted” during Reynolds’ social visits; (6) he be
“assigned to work assignments that are within the assigned [Special
Circumstances Unit]”; and (7) he be “allowed no more than two hours
of recreational activity per day.” 33
Relying upon a legislative record that is replete with references
to Reynolds and ten other individuals who at that time were sentenced
to death in Connecticut, the District Court held that Section 18-10b
satisfies the three elements of an unconstitutional bill of attainder.34
We consider each element in turn.
1. Specification of the Affected Persons
The Supreme Court has instructed that a law may be an
attainder when it “singl[es] out … an individual for legislatively
prescribed punishment … whether the individual is called by name or
33 See Conn. Gen. Stat. § 18-10b(c)(1)(B), (C).
34 Legislators gave heightened attention to two of the ten other individuals:
the “much reviled perpetrators of the widely publicized 2007 home invasion and
murder of three members of Cheshire’s Petit family.” Santiago, 318 Conn. at 116.
Indeed, the “public outrage at the perpetrators in the Cheshire case in particular
was a primary reason the [provision] was drafted to retain the death penalty
retroactively.” Id. at 117 n. 108 (collecting statements from legislators about the role
of the Cheshire case in drafting the bill).
16
described in terms of conduct which, because it is past conduct,
operates only as a designation of particular persons.” 35
On its face, Section 18-10b applies to any “inmate … in the
custody of the Commissioner of Correction for a capital felony
committed prior to April 25, 2012, under the provisions of section 53a-
54b in effect prior to April 25, 2012, for which a sentence of death is
imposed.” 36 There is evidence in the record indicating that the
legislature was well aware that only eleven individuals could ever
meet this description at the time of the provision’s enactment. 37 And
where, as here, “past activity serves as a point of reference for the
ascertainment of particular persons ineluctably designated by the
legislature for punishment, the Act may be an attainder.” 38
The explicit application of the statute only to inmates sentenced
to death as of April 25, 2012 supports a finding that the statute, by
reason of its identification of a closed category of persons, is arguably
a bill of attainder. The fact that the statute does not mention the
inmates by name is immaterial, for it mentions a category of persons
35 Communist Party of the United States v. Subversive Activities Control Bd., 367
U.S. 1, 86 (1961).
36 Conn. Gen. Stat. § 18-10b(a).
37 See, e.g., 55 H.R. Proc., Pt. 4, 2012 Sess., p. 87 (statement of Rep. Cafero)
(“Many people are making their decision on whether or not to vote for this [bill
prospectively repealing the death penalty] because they are trusting that even if …
it passes, those 11 animals on death row will die.”).
38 Selective Serv. Sys., 468 U.S. at 847 (quotation marks and internal citation
omitted).
17
defined only by reference to some pre-existing status. It is well settled
that laws that target persons or groups by a revealing description,
instead of by name, are equally impermissible under the Bill of
Attainder Clause. 39 This is so because a requirement that the names of
targeted individuals be in the law would be easy to circumvent, and
would effectively undermine the protections of the Bill of Attainder
Clause.
The Connecticut legislature abolished the death penalty
prospectively in 2015 because there was not enough support to pass a
full repeal—that is, to abrogate the death penalty in those cases where
it had been imposed prior to enactment of the statute. 40 Legislators at
the time recognized that there was no consistent method to distinguish
between the eleven individuals then on death row and those who
might receive the death penalty in the future. 41 The resulting
39 See United States v. Brown, 381 U.S. 437, 461 (1956) (invalidating as an
unlawful bill of attainder a law that punished the Communist Party by name and
noting that it “was not uncommon for English acts of attainder to inflict their
deprivations upon relatively large groups of people, sometimes by description
rather than [by] name”); Cummings v. Missouri, 71 U.S. 277, 323 (1866) (Stephen J.
Field, J.) (invalidating attainder laws penalizing large groups of former
Confederate sympathizers and remarking that “these bills are generally directed
against individuals by name; but they may be directed against a whole class”).
40 See Santiago, 318 Conn. at 68.
41 See, e.g., 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1054 (remarks of Rep. John
Hetherington) (“It says that, prospectively, it operates to spare killers in the future
but not a certain [eleven] who currently occupy death row. So it is a very curious
moral position; that is, the morality changes depend[ing] upon when it’s applied.”);
55 H.R. Proc., Pt. 4, 2012 Sess., p. 1306 (remarks of Rep. Ernest Hewett) (“If you are
18
legislative compromise directed that the eleven inmates then on death
row would be singled out for especially restrictive conditions of
confinement in the event that they thereafter received a reduced or
commuted sentence. 42
Defendants argue that Section 18-10b cannot be a bill of
attainder because it did not expressly apply to Reynolds or the other
death row inmates at the time it was enacted. But that argument
appears to prove too much and elevates form over substance. To be
sure, Reynolds became subject to Section 18-10b only after the
Connecticut Supreme Court held that capital punishment violated the
state constitution, regardless of the date of the imposition of the
sentence of death—the very possibility that Section 18-10b anticipated
serious about innocent people being put to death, then wait until you have the votes
for a total repeal .… You will not have my vote, but at least you would have done
it the right way.”).
42 See 55 H.R. Proc., 2012 Sess., p. 178 (remarks of Rep. Gerald M. Fox)
(stating that Section 18-10b would further “restrict [the] incarceration” of the eleven
people then sentenced to death, should those sentences be commuted, and “if they
were no longer on death row,” they would be “limited to special circumstances
high security status”). Several legislators specifically referred to Reynolds by name
during these debates. See, e.g., Conn. J. Standing Comm. Hearing, Jud. Pt. 8, 2012
Sess. p. 62 (statement of Rep. Adinolfi) (“I think I could bend … if we gave them
solitary confinement for life. … You have Richard Reynolds, who is [convicted of]
murdering Waterbury Police Officer Walter T. Williams.”); 55 H.R. Proc., Pt. 4, 2012
Sess., pp. 224-25 (statement of Rep. Davis) (“I’d like to bring attention to one
particular inmate on death row …[,] Richard Reynolds.”).
19
and intended to govern by its express terms. 43 Indeed, the fact that the
state legislature contemplated that very contingency and singled out
Reynolds and ten similarly-situated inmates for special treatment in
the event that any of them avoided the death sentence easily meets the
threshold test of “specification” required by the Bill of Attainder
Clause.
2. “Punishment”
To determine whether a law directed at a readily identified
party is punitive, courts look to three factors: “(1) whether the
challenged statute falls within the historical meaning of legislative
punishment; (2) whether the statute, ‘viewed in terms of the type and
severity of burdens imposed, reasonably can be said to further
nonpunitive legislative purposes’; and (3) whether the legislative
record ‘evinces a [legislative] intent to punish.’” 44
i. Historical Test
As recently as 2010, we observed that “[t]he Supreme Court has
recognized that certain types of [legislative] punishment are ‘so
disproportionately severe and so inappropriate to nonpunitive ends
43 See Conn. Gen. Stat. § 18-10b(a) (the section applies only to an inmate who,
inter alia, has had his sentence “reduced to a sentence of life imprisonment without
the possibility of release by a court of competent jurisdiction”).
44Selective Serv. Sys., 468 U.S. at 852; see also Consolidated Edison Co. of N.Y. v.
Pataki, 292 F.3d 338, 350 (2d Cir. 2002) (“[A] statute need not fit all three factors to
be considered a bill of attainder; rather, those factors are the evidence that is
weighed together in resolving a bill of attainder claim.”).
20
that they unquestionably have been held to fall within the proscription
of the [Bill of Attainder Clause].’” 45 These legislative punishments,
when disproportionately severe as imposed, include death,
imprisonment, confiscation of property, and prohibition from
specified employments or vocations. 46
Consistent with the history of the proscription of bills of
attainder, Section 18-10b’s restrictions are plainly punitive, as it directs
the Commissioner of Correction to “house [special circumstances]
inmate[s] in administrative segregation,” which is Connecticut’s most
restrictive form of incarceration. 47
ii. Functional Test
We have likewise noted that “[t]he functional test of
punishment looks to whether the challenged law, ‘viewed in terms of
the type and severity of burdens imposed, reasonably can be said to
further nonpunitive legislative purposes.’” 48
Defendants argue that Section 18-10b lacks a punitive purpose
because it was designed to prescribe the treatment of defendants
45 ACORN, 618 F.3d at 136 (quoting Nixon, 433 U.S. at 473).
46 See id.
47 Conn. Gen. Stat. § 18-10b.
48 ACORN, 618 F.3d at 138 (quoting Nixon, 433 U.S. at 475). See also Kaspersky
Lab, Inc. v. United States Department of Homeland Security, 909 F.3d 446, 455 (D.C. Cir.
2018) (remarking that the functional test “invariably appears to be the most
important of the three [tests]” and that it “provides an inferential tool; it does not
21
following elimination of a sentence of death. We are not persuaded by
this argument, inasmuch as Section 18-10b did not eliminate Reynolds’
death sentence, but rather, addressed the concern that Reynolds’
capital sentence could be reduced or commuted at a future point. In
setting forth the conditions of confinement that Reynolds would then
face, the statute’s primary purpose, in the view of Reynolds, was to
newly punish him. 49
impose an independent requirement” (internal citation and quotation marks
omitted)).
49 In their reply brief, Defendants argue for the first time—without any
citation to the record—that Section 18-10b has legitimate non-punitive purposes,
including “frequent cell searches and moving the inmate to a new cell every ninety
days, [which] are reasonably related to legitimate penological objectives of
reducing contraband and preventing escapes.” Appellant’s Reply Br. at 25.
This assertion is belied by the absence of any consideration of these
objectives in the legislative history, which predominantly involved discussion of
punishing Reynolds and the ten other death row inmates. See Notes 42-43, ante and
accompanying text; see also Conn. J. Standing Comm. Hearing, Jud, Pt. 8, 2012 Sess.,
p. 93 (statement of Sen. Looney) (“I think that someone serving a sentence without
the possibility of release should be subject to the harshest possible constitutional
conditions that could be imposed on someone.”); 55 S. Proc., Pt. 3, 2012 Sess., p. 154
(statement of Sen. Slossberg) (“The death penalty doesn't bring back the victims of
their crimes. And we certainly can punish criminals and protect the public safety
without it. But . . . don't get me wrong, these people have committed horrible crimes
and they deserve to be punished. And with the amendment that was offered at the
beginning of this debate [Section 18-10b], we will have a very severe punishment,
a punishment so horrible at least one person chose to die instead.”); 55 S. Proc., Pt.
3, 2012 Sess., p. 296 (statement of Sen. Prague) (“I did go to Northern and saw death
row and saw how horrible it is there and spending life in prison without the
possibility of parole on death row in a situation that is just like death row is very,
22
iii. Motivational Test
The motivational test inquires “whether the legislative record
‘evinces a congressional intent to punish.’” 50 We have held that “[t]he
legislative record by itself is insufficient evidence for classifying a
statute as a bill of attainder unless the record reflects overwhelmingly
a clear legislative intent to punish.” 51 We agree with the District Court
that the legislative record in this instance overwhelmingly discloses an
intent on the part of the legislature to punish Reynolds should his
death sentence be commuted. 52
very, very, severe punishment. So — and that was our Amendment [Section 18-
10b].”); 55 S. Proc., Pt. 3, 2012 Sess., p. 306 (statement of Sen. Crisco) (“And while
some would say doing this bill may be soft on crime, I'd just like to remind those,
you know, those of you about Northern Prison, death row. To me, that is hell on
earth. How one retains his sanity in an environment like that is incomprehensible.
And the amendment that we approve tonight [Section 18-101)] . . . really presents
to us, I believe, the right way to go.”); 55 H.R. Proc., 2012 Sess., p. 162 (statement of
Rep. Hovey) (“Madam Speaker, we've heard a lot of very eloquent debate today.
And part of the conversation around the argument for the abolishment of the death
penalty is that, one, life and imprison -- life in prison is actually worse or even more
punitive than being put to death. But, for me, these individuals are the most vile in
our society and because of their choices and their behaviors, they will have received
Connecticut's maximum sentencing for prison[.]”).
50 Selective Serv. Sys., 468 U.S. at 852 (quoting Nixon, 433 U.S. at 478).
51ACORN, 618 F.3d at 141 (noting that statements by only a “smattering of
legislators” is insufficient to demonstrate punitive intent by the legislature).
52 See Note 49, ante and accompanying text.
23
Under each of these three tests, we believe the statute was
properly held to have been intended to punish.
3. Lack of a Judicial Trial
Reynolds argues that Section 18-10b imposes punishment
without a judicial trial. But for Section 18-10b, Reynolds would still be
subject to life imprisonment without the possibility of release while
eligible for transfer from the Special Circumstances Unit into the
general prison population. 53
Defendants argue that Reynolds received a trial because he
“was sentenced to death after a full trial, and that conviction was
upheld after habeas challenges.” 54 Reynolds, however, did not receive
a trial for the additional punitive measures that the legislature
imposed on April 25, 2012, when it eliminated the possibility that
Reynolds could ever be released from the Special Circumstances Unit
in the event his death sentence was reduced to life imprisonment.
At the time of Reynolds’ conviction, a permanent and
unreviewable assignment to the Special Circumstances Unit was not a
punishment provided for by the laws of Connecticut. His sentence was
53 We assume without deciding that assignment to “general population” is
preferable to indefinite confinement to the single-cell arrangement of a “supermax”
facility such as NCI. But see Notes 58 and 67, post.
54 Appellants’ Br. at 47.
24
governed by Connecticut General Statute § 53a-46b, as amended by
Public Act 85-366, which provides in relevant part:
If the jury or, if there is no jury, the court finds that none of the
[aggravating] factors … exists or that one or more mitigating
factors exist, the court shall impose a sentence [in accordance
with subsection 1 of Connecticut General Statute § 53a-35a] of
life imprisonment without the possibility of release. 55
Section 53a-35a imposed “a term of life imprisonment without
the possibility of release unless a sentence of death is imposed.” 56
Section 18-10b thus compels a form of severe confinement that was not
available to anyone at the time of Reynolds’ offense and trial—namely,
confinement in indefinite and unreviewable isolation without the
possibility that Reynolds could ever be housed in the general prison
population. 57 Because the punishment imposed on Reynolds was not
available at the time his guilt was initially determined and after it
55 Connecticut Gen. Stat. § 53a-46b
56 Id. § 53a-46b
57 But see Note 53, ante, and Note 67, post.
25
became available it was imposed without a trial, we cannot say that he
was afforded a judicial trial in connection with his punishment. 58
* * *
When applied to Reynolds, Section 18-10b thus meets all of the
requisite criteria for an unlawful bill of attainder.
C. Equal Protection
The District Court granted summary judgment to Reynolds on
his claim that his conditions of confinement, when compared to those
of similarly-situated inmates, violate his rights under the Equal
Protection Clause of the Fourteenth Amendment. To prevail on an
equal protection claim, “a plaintiff must demonstrate that he was
treated differently than others similarly situated as a result of
intentional or purposeful discrimination.” 59 The disparity in treatment
must survive the appropriate level of judicial scrutiny which, in the
58 Our conclusion on this point is informed by our view that the relevant
question is not whether the punishment imposed by Section 18-10b was imposed
subsequent to some judicial trial, but rather, whether the punishment was imposed
after a judicial trial at which the punished individual had an opportunity to
challenge the punishment. While this unique legislative approach has not been
considered by other courts, it embodies the type of harm that the Bill of Attainder
Clause seeks to avoid.
59 Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005).
26
context of a prison, is that the difference in treatment was not
reasonably related to any “legitimate penological interests.” 60
Reynolds does not allege that Defendants treated him
differently because he belonged to a protected class, but rather, rests
on a “class of one” theory, which requires Reynolds to show that he
has been “intentionally treated differently from others similarly-
situated and that there is no rational basis for the difference in
treatment.” 61 Specifically, Reynolds contends that his assignment of an
unreviewable Risk Level 5 was arbitrary, inasmuch as two similarly-
situated prisoners, Santiago and Johnson, were assigned classification
of Risk Level 4, which permits them to live in the general population.62
We agree with the District Court that Santiago and Johnson are
similarly situated to each other, and that, in turn, Reynolds’ individual
circumstances have the requisite high degree of similarity to the two
of them. 63 Notably, all three prisoners: (1) were convicted of murder
and initially sentenced to death; and (2) after their sentences of death
were reversed, were resentenced to life in prison without the
60 Id.
61Village of WIllowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Clubside, Inc.
v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (requiring an “extremely high degree of
similarity” between the plaintiff and those similarly situated).
62See App’x 610 (Affidavit of Eduardo Santiago); App’x 617 (Affidavit of
Terry D. Johnson).
See Reynolds, 402 F. Supp. 3d at 30-33 (discussing the factual backgrounds
63
of Santiago and Johnson).
27
possibility of release. 64 In addition, both Santiago and Johnson have
records of fighting guards and other inmates, while Reynolds has no
violent disciplinary history. We see no rational basis for the
Department of Correction's classification of Reynolds at Risk Level 5
while Santiago and Johnson are classified at Level 4. 65
We are not persuaded by Defendants’ sole proffered
explanation for this discrepancy—namely, that unlike Reynolds,
64 See State of Conn. v. Santiago, 318 Conn. 1 (2015). We acknowledge that the
cases of Johnson and Santiago are not identical in all respects to that of Reynolds.
See State v. Johnson, 253 Conn. 1, 56, 81-82 (2000) (reversing judgment imposing
death penalty and remanding with instructions to impose a sentence of life
imprisonment without the possibility of release because “the evidence adduced at
trial did not support the jury’s finding of an aggravating factor”); State v. Santiago,
318 Conn. 1, 10, 85 (2015) (explaining that while Santiago’s conviction was affirmed,
his sentence of death was initially reversed and remanded for a new penalty phase
hearing on the ground that he had been deprived of the opportunity to review and
use certain potentially mitigating evidence; but, after the passage of Section 18-10b,
on reconsideration, Santiago’s sentence of death was reversed and remanded with
direction to sentence the defendant to life imprisonment without the possibility of
release). But we have not held that comparators must be identical; rather, that “a
plaintiff must show an extremely high degree of similarity between itself and its
comparators.” NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 198 (2d Cir. 2019)
(internal quotation marks omitted); see also Fortress Bible Church v. Feiner, 694 F.3d
208, 221 (2d Cir. 2012) (rejecting defendant’s argument that plaintiff’s equal
protection claim failed “because the [plaintiff] has not provided a single
comparator situated similarly to it in all respects”).
65 See App’x 1043 (Declaration of Carol Guerrero attaching Santiago’s
disciplinary records); App’x 1110 (Declaration of Ruth O’Herron attaching
Johnson’s disciplinary records); App’x 569, Reynolds’s Local Rule 56(a)(1)
Statement of Material Facts (stating that Reynolds did not incur any disciplinary
infractions between 1998 and 2010, and Reynolds has never been cited for a
disciplinary infraction as a result of violent or aggressive behavior).
28
Santiago and Johnson were not “convicted of aggravated capital
murder of a police officer, in a manner that was especially cruel and
heinous.” 66 Santiago was convicted of murdering a sleeping victim in
the victim’s home after being hired by a third party to carry out the
killing, and Johnson was convicted of the murder of a Connecticut
State Trooper during the commission of a burglary. 67 We assume for
the argument that the comparative heinousness of each prisoner’s
offenses may, in some circumstances, factor into a particular equal
protection analysis, but we see no differences between the underlying
crimes of conviction in the instant case sufficient to justify discrepant
treatment.
We conclude that Reynolds is similarly situated to Santiago and
Johnson, and because Defendants do not offer a persuasive
explanation as to why Reynolds is treated differently (particularly
given his lack of violent infractions compared to Santiago and
Johnson), we conclude that Defendants’ classification of Reynolds as
Risk Level 5 violated his equal protection rights.
D. Defendants’ Remaining Challenges on Appeal
In vacating the judgment and the preliminary injunction of the
District Court on these grounds—namely, that the District Court
decided disputed issues of material facts in granting summary
66 Appellant’s Br. at 37.
67 See Santiago, 318 Conn. at 86; State of Conn. v. Johnson, 253 Conn. 1, 4-5
(2000).
29
judgment to Reynolds—we express no view on the remaining
arguments raised by Defendants on appeal, specifically, their
challenges to the District Court’s conclusions regarding whether
Reynolds’ conditions of confinement violate the Eighth Amendment,
or the Due Process Clause of the Fourteenth Amendment; whether the
District Court’s permanent injunction violated the Prison Litigation
Reform Act; and whether, in the circumstances presented here,
Defendants are entitled to qualified immunity.
III. CONCLUSION
In closing, we note with interest Defendants’ suggestion that
Reynolds does not wish to be moved into general population, given
his preference for a single cell. 68 Our holding does not suggest, much
less require, that after further review of Reynolds’ situation, Reynolds’
own preferences should be disregarded.
To summarize, we hold as follows:
(1) The District Court erred by deciding disputed issues of
material fact in granting summary judgment in favor of
68 See App’x 2230, August 30, 2019 Declaration of NCI Warden Giuliana
Mudano (stating that she has spoken with Reynolds following the entry of the
injunction, and that Reynolds told her he would prefer to keep his single cell). But
see App’x 1799, Reynolds's Local Rule 56(a)(2) Statement of Material Facts (stating,
inter alia, that he had "made his complaints about conditions clear through written
Inmate Request forms," and that he had "never discussed his single cell status with
Defendant Quiros and he made it clear in numerous grievances that he was not
'satisfied' with his conditions on death row"). See also Notes 53 and 57, ante.
30
Reynolds on his claims under the Eighth Amendment, and
the Due Process Clause of the Fourteenth Amendment;
(2) The District Court correctly concluded that, with respect to
Reynolds, Conn. Gen. Stat. § 18-10b is an unconstitutional bill
of attainder; and
(3) Reynolds’ unreviewable classification score of Risk Level 5
violates his rights under the Equal Protection Clause of the
Fourteenth Amendment because the difference in his
treatment compared to that of other similarly-situated
inmates lacks a rational basis.
For the foregoing reasons, we AFFIRM IN PART the August 27,
2019 judgment of the District Court, insofar as it held that Conn. Gen.
Stat. § 18-10b is an unconstitutional bill of attainder and that
Defendants violated Reynolds’ equal protection rights by arbitrarily
assigning him an unreviewable Risk Level 5; we VACATE the August
27, 2019 judgment in all other respects; AFFIRM IN PART the August
27, 2019 permanent injunction with respect to its provisions: (1)
enjoining DOC from enforcing Section 18-10b in Reynolds’ case; (2)
directing DOC to house Reynolds in conditions similar to those of
Johnson and Santiago; and (3) requiring DOC to provide Reynolds
with a meaningful individualized classification determination;
VACATE the August 27, 2019 permanent injunction in all other
respects; and REMAND the cause to the District Court for further
proceedings consistent with this opinion.
31
19-2858
Reynolds v. Quiros,
1 KEARSE, Circuit Judge, concurring:
2 Previously we have acknowledged that generally, a prisoner's contention
3 that his conditions of confinement violate the Eighth Amendment requires an analysis
4 involving both objective and subjective factors. See Phelps v. Kapnolas, 308 F.3d 180,
5 185 (2d Cir. 2002); see, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). While I concur
6 fully in Judge Cabranes's opinion, I write separately to offer a brief thought--which
7 has no immediate bearing on our disposition in this case--on the applicability of the
8 subjective factor.
9 "[T]he treatment a prisoner receives in prison and the conditions under
10 which he is confined are subject to scrutiny under the Eighth Amendment." Helling
11 v. McKinney, 509 U.S. 25, 31 (1993). Generally a prisoner's challenge to his conditions
12 of confinement on the basis that the conditions constitute cruel and unusual
13 punishment in violation of the Eighth Amendment requires a two-step analysis. See,
14 e.g., Farmer, 511 U.S. at 834. First, a prisoner must show that, because of his conditions
15 of confinement, he is deprived of a "basic human need[]," including "food, clothing,
16 shelter, medical care, and reasonable safety." Helling, 509 U.S. at 32 (internal
17 quotation marks omitted). Risk of future harm from unsafe conditions can meet this
1 "objective prong" of an Eighth Amendment violation. Id. at 33-35. Second, he must
2 show that prison officials were deliberately indifferent to a risk to his health and
3 safety, which the Court has defined as knowing and disregarding an excessive risk
4 to inmate health or safety. See Farmer, 511 U.S. at 834-37.
5 The Court has explained that the source of the deliberate indifference
6 standard is "the Eighth Amendment itself, which bans only cruel and unusual
7 punishment." Wilson v. Seiter, 501 U.S. 294, 300 (1991) (emphasis in original). "If the
8 pain inflicted is not formally meted out as punishment by the statute or the sentencing
9 judge, some mental element must be attributed to the inflicting officer before it can
10 qualify." Id. (emphasis in original). Despite the implicit limitation that the inquiry
11 into a prison official's state of mind applies only to claims challenging conditions of
12 confinement that do not implicate statutorily required conditions, courts have
13 generalized the application of the deliberate indifference requirement to all conditions
14 of confinement. See, e.g., Helling, 509 U.S. at 32 ("Wilson v. Seiter . . . held that a claim
15 that the conditions of a prisoner's confinement violate the Eighth Amendment
16 requires an inquiry into the prison officials' state of mind."). To be sure, it is likely
17 that most conditions-of-confinement claims will arise in the context of prison officials
18 performing (or not performing) discretionary management duties; but where the
-2-
1 challenged conditions are explicitly prescribed by statute, I do not see the rationale
2 for an inquiry into an official's mental state, nor do I read the caselaw to require one.
3 The conditions challenged by Reynolds are unique in that they are
4 imposed by Conn. Gen. Stat. § 18-10b and are thus "formally meted out as
5 punishment by the statute." Wilson v. Seiter, 501 U.S. at 300 (emphasis omitted). Such
6 conditions being required by statute, I do not think any Eighth Amendment challenge
7 necessitates a showing of deliberate indifference. See id. at 306 (White, J., concurring
8 ("It is well established, and the majority does not dispute, that pain or other suffering
9 that is part of the punishment imposed on convicted criminals is subject to Eighth
10 Amendment scrutiny without regard to an intent requirement.")).
-3-