Peter Bistrian v. Troy Levi

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 10-3629
_______________

PETER BISTRIAN

v.

WARDEN TROY LEVI, FDC Philadelphia; ASSISTANT
WARDEN TRACY BROWN, FDC Philadelphia;
ASSISTANT WARDEN BLACKMAN, FDC Philadelphia;
CAPTAIN DAVID C. KNOX, FDC Philadelphia; J.
MCLAUGHLIN, Special Investigative Agent, FDC
Philadelphia; DAVID GARRAWAY, Special Investigative
Agent, FDC Philadelphia; LT. J. A. GIBBS, FDC
Philadelphia; SENIOR WILLIAM JEZIOR, FDC
Philadelphia; SENIOR OFFICER BOWNS, FDC
Philadelphia; SENIOR OFFICER BERGOS, FDC
Philadelphia; UNIT MANAGER WHITE, FDC Philadelphia;
LT. RODGERS, FDC Philadelphia; LT. R. WILSON, FDC
Philadelphia; LT. ROBINSON, FDC Philadelphia; LT. D.
ACKER, FDC Philadelphia; LT. D. DEMPSEY, FDC
Philadelphia; LT. ARMISAK, FDC Philadelphia; CLINICAL
DIRECTOR O. DALMASI, M.D., FDC Philadelphia;
PHYSICIAN ASSISTANT H. BOKHARI, FDC
Philadelphia; PHYSICIAN ASSISTANT A. FAUSTO, MLP,
FDC Philadelphia; CHIEF PSYCHOLOGIST A.
BOARDMAN, FDC Philadelphia;
 A. MARTINEZ, Health Service Administrator, FDC
Philadelphia; G. REYNOLDS, M.D. FDC Philadelphia; K.
KAISER, PA-C, FDC Philadelphia; Q. HIT ALSBROOKS,
FDC Philadelphia; A. ZORRILLA, NP, FDC Philadelphia; D.
MASSA, M.D., FDC Philadelphia; D. STILL, DDS, CDO,
FDC Philadelphia; JOHN/JANE DOES 1-10, Agents
Servants, and Employees of Federal Bureau of Prisons and/or
Federal Detention Center, Philadelphia; JOHN/JANE DOES
11-15, Agents, Servants, and Employees of other
Departments, Agencies, and/or Bureaus of
the United States of America;
THE UNITED STATES OF AMERICA

WARDEN TROY LEVI; ASSISTANT
WARDEN TRACY BROWN; ASSISTANT
WARDEN BLACKMAN; CAPTAIN
DAVID C. KNOX;
J. MCLAUGHLIN; DAVID GARRAWAY;
LT. J. A. GIBBS; SENIOR WILLIAM
JEZIOR; SENIOR OFFICER BOWNS;
SENIOR OFFICER BERGOS; UNIT
MANAGER WHITE; LT. RODGERS; LT. R.
WILSON; LT. ROBINSON; LT. D. ACKER;
LT. D. DEMPSEY; LT. ARMISAK;
CLINICAL DIRECTOR O. DALMASI, M.D.;
PHYSICIAN ASSISTANT H. BOKHARI;
PHYSICIAN ASSISTANT A. FAUSTO;
CHIEF PSYCHOLOGIST A. BOARDMAN;
A. MARTINEZ; K. KAISER;
Q. HIT ALSBROOKS; A. ZORRILLA; D.
MASSA, M.D.; D. STILL

Appellants

2
 _______________

On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-08-cv-03010)
District Judge: Honorable Cynthia M. Rufe
_______________

Argued March 7, 2012
_______________

Before: McKEE, Chief Judge, SCIRICA,
and AMBRO, Circuit Judges

(Opinion filed: September 24, 2012)

John P. Kahn, Esq. (Argued)
Archer & Greiner
One Centennial Square
P.O. Box 3000
Haddonfield, NJ 08033

Carlton L. Johnson, Esq.
Richard G. Tuttle, Esq.
Archer & Greiner
1650 Market Street
One Liberty Place, 32nd Floor
Philadelphia, PA 19103-7393

Counsel for Appellants

Jonathan S. Abady, Esq.
Adam R. Pulver, Esq.

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O. Andrew F. Wilson, Esq. (Argued)
Emery, Celli, Brinckerhoff & Abady
75 Rockefeller Plaza, 20th Floor
New York, NY 10019

Stephanie B. Fineman, Esq.
Fox Rothschild
2700 Kelly Road, Suite 300
Warrington, PA 18976-3624

Robert E. Goldman, Esq.
P.O. Box 239
Fountainville, PA 18923

James L. Griffith, Esq.
Fox Rothschild
2000 Market Street, 20th Floor
Philadelphia, PA 19103

Counsel for Appellee

_______________

OPINION OF THE COURT
_______________

AMBRO, Circuit Judge

Twenty-seven employees of the Federal Detention
Center in Philadelphia (―FDC Philadelphia‖) appeal the
District Court‘s denial of their motion to dismiss Peter
Bistrian‘s multiple claims. Bistrian asserts that, while he was
awaiting sentencing on wire-fraud charges, prison
investigators used him to intercept notes being passed among

4
other inmates, and then failed to protect him after they
flubbed the operation and the inmates discovered his
involvement. When the target inmates threatened to retaliate,
Bistrian contends he repeatedly begged the officials
responsible for help, but no one took any preventive
measures. Later, one of the inmates against whom Bistrian
had cooperated, along with two others, beat him while they
were together in a locked recreation pen. A few months later,
an inmate wielding a razor-blade type weapon also attacked
Bistrian in the recreation pen. In addition, Bistrian claims
that certain chunks of the 447 days he spent in administrative
segregation violated his substantive due process, procedural
due process, and free speech rights.

Bistrian‘s 108-page Second Amended Complaint (the
―Complaint‖) includes 19 counts, 309 paragraphs, and an
additional 114 pages of exhibits. After the District Court‘s
ruling, six counts survived against 28 defendants. Though we
pare down this action further as to both the number of
defendants and claims, those that remain are plausible and
can proceed past the motion-to-dismiss stage. Thus, we
affirm in part, reverse in part, and remand for proceedings
consistent with this opinion.

I. Factual Background1

1
When reviewing the denial of a Rule 12(b)(6) motion to
dismiss, we must accept as true all well-pled factual
allegations as well as all reasonable inferences that can be
drawn from them, and construe those allegations in the light
most favorable to the plaintiff. See Mayer v. Belichick, 605
F.3d 223, 229-30 (3d Cir. 2010). As such, we set out facts as
they appear in the Complaint and its exhibits. See id. at 230

5
 A. Bistrian Enters the Special Housing Unit
(“SHU”) for the First Time

Bistrian was a detainee at FDC Philadelphia from
August 2005 — when he was arrested on federal wire fraud-
related charges — until his sentencing in March 2008. App.
74 ¶ 9; 186; 235. During that time he clocked four spells,
totaling 477 non-consecutive days, in the Special Housing
Unit (―SHU‖). App. 81 ¶ 39.

The SHU is a segregated housing unit where inmates
may be placed for either administrative or disciplinary
reasons. App. 74-76 ¶¶ 11-17. Inmates are confined in
solitary or near-solitary conditions in a six-by-eight foot cell
―for 23 to 24 hours a day, with little or no opportunity to
interact with other inmates.‖ App. 75 ¶12. They face sensory
deprivation, reduced access to medical care, and increased
suicidal tendencies. App. 75 ¶¶ 12-13.

Administrative detention in the SHU can occur for a
variety of reasons. App. 76 ¶¶ 18-27. If an ―inmate‘s
continued presence in the general population poses a serious
threat to life, property, self, staff, other inmates or the security
or orderly running of the institution,‖ then the Warden may
place the inmate in administrative detention if (among other
reasons) an investigation of an inmate is pending for violating
prison regulations or the inmate requests admission for
protective purposes. App. 76 ¶ 19 (quoting 28 C.F.R.
§ 541.22(a)).2 Bureau of Prison (―BOP‖) regulations require

(noting that a court can consider ―exhibits attached to the
complaint‖ when deciding a Rule 12(b)(6) motion to dismiss).
2
Some of the regulations that Bistrian quotes or cites in the
Complaint (filed in July 2009) have since been amended. In

6
the Warden of a detention facility to prepare an administrative
order ―detailing the reasons for placing an inmate in
administrative detention‖ within 24 hours of the inmate‘s
placement, and to provide a copy to the inmate. App. 77 ¶ 20
(quoting 28 C.F.R. § 541.22(b)). In addition, a Segregation
Review Officer (―SRO‖) must make ongoing determinations
about the appropriateness of the inmate‘s continued housing
in administrative detention. App. 77-78 ¶¶ 21-27.

Disciplinary segregation is principally reserved for
inmates ―officially designated as exhibiting violent or
seriously disruptive behavior while incarcerated.‖ App. 74-
75 ¶ 11; 78-80 ¶¶ 28-37. Only a Discipline Hearing Officer
(―DHO‖) may impose disciplinary segregation, and may do
so only after a hearing finding the inmate has committed a
serious prohibited act. App. 78-80 ¶¶ 29-37. An SRO must
also monitor inmates in disciplinary segregation and make
determinations about the appropriateness of their continued
separation. App. 80 ¶ 36.

On November 18, 2005, Bistrian was transferred out of
the general prison population and into administrative
detention in the SHU because he supposedly abused his
telephone privileges. App. 85 ¶ 57. On December 9, 2005, a
DHO sanctioned him to 30 days‘ disciplinary segregation for
the alleged infractions. App. 85 ¶¶ 59. Bistrian was released
from the SHU on January 9, 2006. Id. The propriety of this
30-day disciplinary segregation is not at issue here.

According to the Complaint, Warden Troy Levi failed
to prepare an administrative detention order detailing the

the background section of this opinion, we refer to and quote
the regulations as they appear in the Complaint. Current
federal regulations concerning SHUs appear in 28 C.F.R.
§§ 541.20-.33.

7
reasons for Bistrian‘s detention and to provide him with a
copy within 24 hours of his initial confinement on November
18. App. 85 ¶ 60. Bistrian also claims an SRO failed to
conduct, as required by BOP regulations, reviews of his
placement in administrative detention between November 18
and December 9. App. 86 ¶ 61.

B. Bistrian Enters the SHU a Second Time

Shortly after Bistrian‘s release from the SHU on
January 9, 2006, FDC officials again accused him of violating
the telephone rules and placed him back in the SHU for
administrative detention on January 25. App. 86 ¶ 63. This
time Bistrian remained there for 308 days, until his release on
December 8. Id. He claims that Warden Levi again did not
prepare a timely and appropriate administrative detention
order. App. 86 ¶ 64.

Bistrian also alleges that Warden Levi and nine other
FDC officials (together the ―Prison Management
Defendants‖)3 met on a weekly basis to discuss the status of
SHU inmates and to determine whether any of them should
be released back into the general prison population. App. 80
¶ 38. He claims that, during his second stay in the SHU,
prison officials did not investigate the alleged phone abuse
that was the supposed reason for his confinement. Instead,
they intentionally confined him in administrative segregation
under the pretext of a non-existent investigation in order to

3
This group consists of Warden Levi, Assistant Wardens
Brown and Blackman, five members of the Corrections
Officers staff (Captain David Knox, Lt. David Gibbs, Sr.
Officer William Jezior, Sr. Officer Bergos and Unit Manager
White), and two Special Investigative Agents (J. McLaughlin
and David Garraway). App. 80-81 ¶ 38.

8
bypass the procedural protections required for disciplinary
segregation. App. 86-87 ¶¶ 65-67.

1. Bistrian Collaborates with the Federal
Bureau of Investigation (―FBI‖)

In April or May 2006, Steve Northington (another
SHU detainee) asked Bistrian (then an orderly in the SHU) to
pass along a note to his fellow gang member and SHU
detainee, Kaboni Savage. App. 89 ¶¶ 72, 74. Bistrian agreed,
but later advised Lt. Gibbs and Sr. Officers Bowns, Jezior,
and Bergos that he had done so. App. 89 ¶ 73. Northington
and Savage are members of a drug gang from North
Philadelphia. App. 89 ¶ 74. They have long and violent
criminal careers with prior convictions for, among other
things, robbery and aggravated assault. App. 89 ¶¶ 74-76.
During a court-authorized wiretap of his SHU cell, Savage
was caught on tape repeatedly threatening in graphic detail to
kill the witnesses against him, their wives, parents, siblings,
and young children. App. 89 ¶ 76 (citing Government‘s
Sentencing Memorandum, United States v. Kaboni Savage,
Criminal No. 04-269-01 (E.D. Pa. March 15, 2006)).

The FBI expressed interest in the notes being passed
among Northington, Savage, and other detainees, because
they were defendants in an ongoing drug gang prosecution
that involved substantial witness intimidation, death threats to
witnesses and law enforcement, and a firebombing that killed
six family members of the Government‘s chief cooperating
witness. App. 90 ¶¶ 78-79. After consulting with the FBI,
Lt. Gibbs and Sr. Officers Bowns, Jezior, and Bergos
instructed Bistrian to continue passing notes for the inmates.
App. 90 ¶ 80. They told him, however, to bring the notes to
the Special Investigative Services (―SIS‖) office at FDC
Philadelphia first. App. 90 ¶¶ 80.

9
 Bistrian passed several notes among Northington,
Savage, and two other detainees over the next few weeks.
App. 90 ¶ 81. Each time, Bistrian would bring the note to the
SIS office. Lt. Gibbs, Sr. Officers Bowns, Jezior, and Bergos,
Special Investigative Agents McLaughlin and Garraway, and
Lts. Rodgers and Robinson would review the note, photocopy
it if necessary, and then give it back to Bistrian with
instructions to deliver it. App. 90 ¶ 81. Lt. Gibbs, Sr.
Officers Bowns, Jezior, and Bergos, and Special Investigative
Agents McLaughlin and Garraway forwarded some
photocopies to the FBI. App. 90 ¶ 82.

But ―[o]n one particular occasion‖ when Bistrian
brought in a note for photocopying, Lt. Gibbs and Sr. Officers
Bowns, Jezior, and Bergos placed the photocopy back in the
delivery envelope instead of the original note. App. 91 ¶ 84.
Bistrian claims that the note‘s intended recipient recognized it
as a photocopy and immediately realized Bistrian‘s
cooperation with prison officials. App. 91 ¶ 84. Bistrian also
alleges that, on unspecified occasions, Lts. Gibbs, Rodgers,
and Robinson, Sr. Officers Bowns, Jezior, and Bergos, and
Special Investigative Agents McLaughlin and Garraway
failed to return to him all notes for delivery, further notifying
the intended recipients of his cooperation. App. 91 ¶ 85.
Bistrian began receiving multiple threats from the
notes‘ intended recipients, including Northington, who
threatened him on more than one occasion when they were
together in the recreation yard. App. 91-92 ¶ 86. According
to Bistrian, he ―repeatedly advised (both verbally and in
writing)‖ FDC officials—including Lts. Gibbs, Rodgers, and
Robinson, Sr. Officers Bowns, Jezior, and Bergos, and
Special Investigative Agents McLaughlin and Garraway—of
the threats and the risks he faced by being confined in the
SHU with the Northington gang. App. 92 ¶ 87. He insisted
that members of Northington‘s gang would seriously harm

10
him if they were placed in the recreation yard with him at the
same time. App. 92 ¶ 87. Despite these warnings, FDC
officials took no preventive action.

2. Bistrian is Attacked for the First Time

On June 30, 2006, Bistrian was standing in the SHU
recreation yard (a locked pen with guards posted on the
outside) when Northington and two other SHU inmates
approached him and began arguing about a note that he failed
to deliver. App. 93 ¶ 92; 237. When Bistrian turned away,
Northington punched him in the face. App. 93 ¶ 93. Bistrian
was then knocked to the ground and went unconscious when
his head hit a cement portion of the yard‘s metal cages. Id.
While he lay unconscious, Northington and the other inmates
repeatedly kicked and beat him, landing blows to his face,
head, body, and midsection. App. 93 ¶ 94.

Bistrian claims that FDC guards, including Sr. Officer
Jezior, intervened ―[o]nly after several minutes of continued
pummeling.‖ App. 93-94 ¶ 95. According his incident
report, Sr. Officer Jezior came to the SHU recreation pen in
response to an alarm and, on his arrival, saw an inmate
beating Bistrian in the face with closed fists. App. 250.
Several staff members, including Jezior, shouted orders to the
inmate to stop and back away from Bistrian, but the inmate
continued his beating. Id. When ―enough staff were
present,‖ officers entered the recreation pen and the assaulting
inmate got down on his stomach and allowed himself to be
handcuffed without further incident. Id. By then Bistrian had
already suffered a dislocated left shoulder, broken teeth, and
multiple contusions and lacerations to his head and face that
required sutures. App. 94 ¶ 97.

Special Investigative Agent McLaughlin interviewed
Northington after the attack. Presumably when asked why he

11
attacked Bistrian, ―Northington stated that he got 19 and a
half years because of rats and now inmate Bistrian is being
used to get him [Northington] another case.‖ App. 237.
Another inmate involved in the attack admitted that he
previously put a sign on his cell that read ―stop snitching.‖
App. 238.

Bistrian remained in the SHU after the attack. On July
6, 2006, Lt. Wilson prepared an administrative order
purporting to place him in administrative detention for
―security reasons.‖ App. 94 ¶ 99. Bistrian claims that neither
Warden Levi nor Lt. Wilson gave him a copy of this order, as
required by prison regulations. App. 95 ¶ 100.

3. Bistrian is Attacked a Second Time

On October 12, 2006, Bistrian was attacked again in
the SHU recreation yard. App. 96 ¶ 106. He was in hand
restraints, waiting to be let in from the yard, when Aaron
Taylor (an inmate with a history of violently attacking fellow
detainees) approached him waving a ―manufactured razor-
blade style weapon, repeatedly slashing and cutting [his] face,
arms, and legs.‖ App. 96-97 ¶¶ 106-07.
FDC guards and staff, including Captain Knox and
Lts. Acker and Dempsey, attempted to stop the attack by
firing pepper spray into the recreation cage. App. 97 ¶ 109;
269. This proved ineffective, so after several minutes they
used a ―Tactical Blast Stun Munition,‖ which incapacitated
Taylor and allowed staff members to enter the area to attend
to Bistrian. App. 97 ¶ 109. Lt. Acker interviewed Bistrian
after the attack and asked him what happened. App. 276.
According to Lt. Acker‘s report, Bistrian told him that Taylor
yelled ―You racist mother fucker!,‖ and then attacked him

12
even though Bistrian had never spoken to Taylor before the
incident. App. 276.4

Bistrian was transported to a local hospital, where he
received 52 sutures to close his wounds. App. 97 ¶ 112. The
attack left him with scars on his face and body as well as
severe mental, emotional, and psychological injuries. App.
98 ¶ 113. Despite several requests, prison officials did not
allow him to see a medical doctor again until November 9,
2006. App. 98 ¶ 114. After a brief examination, medical
staff told Bistrian that ―he was going to have to be ‗creative‘
at physical rehabilitation due to his confinement in the SHU.‖
App. 98 ¶ 114. Bistrian was released from the SHU on
December 8, 2006, and transferred back to the general
population. App. 99 ¶ 118.

C. Bistrian Enters the SHU a Third Time

After learning that they had placed Bistrian in the same
unit as one of his June 30 assailants, FDC officials returned
Bistrian to the SHU for a third time on December 22, 2006;
he remained there until January 25, 2007. App. 99 ¶¶ 118-19.

Bistrian alleges that the Prison Management
Defendants violated several prison regulations when moving
him back to the SHU. For example, Warden Levi once again
failed to prepare a timely and appropriate administrative
detention order. App. 99 ¶ 121 (citing 28 C.F.R. §
541.22(b)). Also, because they placed Bistrian in
4
Taylor was later convicted of assault with a dangerous
weapon, 18 U.S.C. § 113(a)(3), and sentenced to 120 months‘
imprisonment. We recently affirmed his conviction and
described the racial tensions apparently inflaming inmates at
FDC Philadelphia at the time of the attack. See United States
v. Taylor, 686 F.3d 182 (3d Cir. 2012).

13
administrative segregation for protective purposes but not at
his own request, the Prison Management Defendants were
required to review his status within two work days and hold a
hearing within seven days of his placement, but they failed to
do so. App. 100 ¶¶ 122-24.

D. Bistrian Enters the SHU a Fourth Time

After having been in and out of the SHU three times,
Bistrian met with forensic psychologist Dr. Stephen E.
Samuel. In August 2007, Dr. Samuel informed the FDC‘s
chief psychologist that he had diagnosed Bistrian with Post-
Traumatic Stress Disorder and Dysthymic Disorder resulting
from his long-term confinement in the SHU and the two
attacks he suffered. App. 100 ¶ 125.

That month, Bistrian participated in the first of two
sentencing hearings in his criminal case. App. 100 ¶ 126. In
court filings and at the hearing, his counsel contested the
legality of his placement in the SHU and his other
mistreatment in prison. Id. Following the hearing, on
September 12, 2007, Bistrian‘s attorney sent an email to the
Assistant United States Attorney handling the sentencing,
repeating his challenge to the purported telephone violation
charges against Bistrian that had been used to justify his first
two placements in the SHU and demanding a copy of the
applicable prison regulations. App. 101 ¶ 127. The AUSA
forwarded the email to FDC Philadelphia. Id.

The next day, Bistrian returned to the SHU, received
an administrative detention order indicating that he was being
held ―pending investigation‖ of alleged telephone infractions;
and attended a hearing before the Unit Disciplinary
Committee, where he promptly received a sanction of a loss
of phone privileges for 60 days. App. 101 ¶¶ 128-30.

14
 Four days later, Bistrian‘s counsel wrote a letter to
Warden Levi to request that he release Bistrian from the SHU
and to inform him that Bistrian continued to suffer from
physical and psychological injuries as a result of his prior
confinement in the SHU and the two prior assaults. App. 101-
102 ¶ 131. During this stint in the SHU, Warden Levi told
Bistrian he ―would not see the light of day again.‖ App. 102
¶¶ 133. He also sent FDC staff members to coerce Bistrian
into confessing by telling him that he would not be released
from the SHU unless he confessed to the alleged violations.
App. 102 ¶ 134. Bistrian remained in the SHU until
December 4, 2007. App. 102 ¶ 132.

On March 14, 2008, Judge DuBois sentenced Bistrian
to 57 months‘ imprisonment. App. 8.

II. Procedural Background

Bistrian filed this suit in June 2008. Of the 19 counts
in the Complaint, Counts I-V allege violations of Bistrian‘s
Fifth Amendment substantive and procedural due process
rights, Counts VI-IX relate to the Eighth Amendment, Count
X is a First Amendment retaliation claim, and Counts XI-XIX
are against the United States under the Federal Tort Claims
Act (―FTCA‖). Bistrian seeks $50 million in damages against
the FDC defendants in addition to other relief. See, e.g., App.
109 ¶ 156.

Each of the defendants moved to dismiss the
Complaint, arguing, among other things, that Bistrian failed
to exhaust his administrative remedies, that his claims were
untimely, and that he failed to allege sufficient facts to state
claims that overcome their entitlement to qualified immunity.
The District Court granted motions to dismiss 13 of the 19
counts (Counts VI-IX and XI-XIX). The propriety of these
dismissals is not before us.

15
 The Court denied, however, the FDC defendants‘
motion to dismiss Counts I-V and Count X. The Court found
that Bistrian adequately alleged individual involvement of the
28 named defendants in the constitutional torts at issue to
survive dismissal on qualified immunity grounds.

Twenty-seven of the 28 defendants appeal the District
Court‘s refusal to dismiss Count I-V and X. In his appellate
brief, Bistrian — ―[i]n the interests of narrowing the scope of
this action‖— does not oppose Appellants‘ challenge to his
claim sounding in deliberate indifference to medical needs
(Count IV, Fifth Amendment), but he intends to proceed on
that claim against defendant Reynolds, who has not appealed
the District Court‘s decision. Bistrian Br. 2. He also
concedes in his brief to the dismissal of Appellants Martinez,
Kaiser, Dalmasi, Fausto, Bokhari, Alsbrooks, Zorrilla, Massa,
and Still. Id. at 2-3. Counsel further clarified the
configuration of claims and appellants in play at oral
argument.

Taking into account the District Court‘s decision and
Bistrian‘s concessions and clarifications, the following claims
and persons are at issue in this appeal.

Count I: Fifth Amendment Substantive Due Process (Failure
to Protect)

 Claim: Appellants failed to protect Bistrian from the
June 30, 2006 assault, both before and during the
attack.

 Appellants/defendants (13): (1-10) The 10 Prison
Management Defendants; (11) Sr. Officer Bowns; (12)
Lt. Rodgers; and (13) Lt. Robinson.

16
Count II: Fifth Amendment Substantive Due Process (Failure
to Protect)

 Claim: Appellants failed to protect Bistrian from the
October 12, 2006 assault, both before and during the
attack.

 Appellants/defendants (12): (1-10) The 10 Prison
Management Defendants; (11) Lt. Dempsey; and (12)
Lt. Acker.

Count III: Fifth Amendment Substantive Due Process

(Punitive Detention)

 Claim: Bistrian‘s placement and continued detention
in the SHU deprived him of his liberty interest, as an
inmate awaiting sentencing, in being free from
punishment.

 Appellants/defendants (13): (1-10) The 10 Prison
Management Defendants; (11) Lt. Rodgers; (12) Lt.
Robinson; and (13) Lt. Armisak.

Count V: Fifth Amendment Procedural Due Process

 Claim: Bistrian‘s placement and continued detention
in the SHU failed to comply with the Fifth
Amendment‘s procedural due process requirements.

 Appellants/defendants (11): (1-10) The 10 Prison
Management Defendants; and (11) Lt. Wilson.

17
Count X: First Amendment (Retaliation)

 Claim: Bistrian‘s placement and continued detention
in SHU after his attorney challenged his previous
placement as retaliatory for exercising First
Amendment rights.

 Appellants/defendants (10): (1-10) The 10 Prison
Management Defendants.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331.
The collateral order doctrine allows this appeal because it is
from an order denying a motion to dismiss that raises a
qualified immunity defense turning on an issue of law. See
Ashcroft v. Iqbal, 556 U.S. 662, 670-75 (2009); Argueta v.
U.S. Immigration & Customs Enforcement, 643 F.3d 60, 69
(3d Cir. 2011) (―Pursuant to Iqbal, our appellate jurisdiction
extends beyond merely determining whether the complaint
avers a clearly established constitutional violation, and we
also have the power to consider the sufficiency of the
complaint itself.‖).
We exercise plenary review over the District Court‘s
denial of Appellants‘ motion to dismiss. See Iqbal, 556 U.S.
at 674; Argueta, 643 F.3d at 69.
IV. Discussion

We must decide whether the Complaint adequately
alleges Appellants‘ personal involvement in the violation of
Bistrian‘s clearly established constitutional rights. Appellants
claim the Complaint ―attributes a string of several defendants

18
to each allegation of wrongful conduct,‖ and in doing so ―this
‗everyone in the institution‘ pleading . . . fails to provide the
personal involvement or some affirmative action by the
individual defendants.‖ Appellants‘ Br. 3. They also argue
that they are entitled to qualified immunity because some of
the alleged misconduct does not involve the violation of
clearly established constitutional rights. Thus, they insist that
the Complaint must be dismissed.

A. The Pleading Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a
pleading contain a ―short and plain statement of the claim
showing that the pleader is entitled to relief.‖ The Supreme
Court‘s most recent explications of this Rule appear in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Iqbal.
Our Court has had several occasions to examine those
decisions in depth, see, e.g., Argueta, 643 F.3d at 70-73;
Santiago v. Warminster Twp., 629 F.3d 121, 129-30 (3d Cir.
2010); Fowler v. UPMC Shadyside, 578 F.3d 203, 209-211
(3d Cir. 2009), and so we begin by recounting only their
essential teachings.

The touchstone of the pleading standard is plausibility.
The Court in Iqbal explained that

[t]o survive a motion to dismiss, a
complaint must contain sufficient
factual matter, accepted as true, to
state a claim to relief that is
plausible on its face. A claim has
facial plausibility when the
plaintiff pleads factual content
that allows the court to draw the
reasonable inference that the
defendant is liable for the

19
 misconduct alleged. The
plausibility standard is not akin to
a probability requirement, but it
asks for more than a sheer
possibility that a defendant has
acted unlawfully. Where a
complaint pleads facts that are
merely consistent with a
defendant‘s liability, it stops short
of the line between possibility and
plausibility of entitlement to
relief.

556 U.S. at 678 (citations and quotation marks
omitted).

To determine whether a complaint meets the pleading
standard, our analysis unfolds in three steps. First, we outline
the elements a plaintiff must plead to a state a claim for relief.
See id. at 675; Argueta, 643 F.3d at 73. Next, we peel away
those allegations that are no more than conclusions and thus
not entitled to the assumption of truth. See Iqbal, 556 U.S. at
679; Argueta, 643 F.3d at 73. Finally, we look for well-pled
factual allegations, assume their veracity, and then ―determine
whether they plausibly give rise to an entitlement to relief.‖
Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. This last step
is ―a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.‖ Iqbal,
556 U.S. at 679.

In Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, the Supreme Court recognized an
implied private right of action for damages against federal
officials who have violated a person‘s Fourth Amendment
rights. 403 U.S. 388 (1971). The Court has extended the
Bivens implied right of action to suits for damages brought

20
under the equal protection component of the Due Process
Clause of the Fifth Amendment, see Davis v. Passman, 442
U.S. 228 (1979), and the Cruel and Unusual Punishments
Clause of the Eighth Amendment, see Carlson v. Green, 446
U.S. 14 (1980). Since Carlson, however, the Court ―has
consistently refused to extend Bivens liability to any new
context or new category of defendants.‖ Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001). Nonetheless, ―[i]n the
limited settings where Bivens does apply, the implied cause of
action is the ‗federal analog to suits brought against state
officials under . . . 42 U.S.C. § 1983.‘‖ Iqbal, 556 U.S. at
675-76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2
(2006)). When the claim is available, ―[t]he factors necessary
to establish a Bivens violation will vary with the
constitutional provision at issue.‖ Id. at 676.

But unlike other legal contexts, ―[g]overnment
officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat
superior.‖ Id. ―Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official‘s own
individual actions, has violated the Constitution.‖ Id.5

5
This case gives us no occasion to wade into the muddied
waters of post-Iqbal ―supervisory liability.‖ ―Numerous
courts, including this one, have expressed uncertainty as to
the viability and scope of supervisory liability after Iqbal.‖
Santiago, 629 F.3d at 130 n.8 (collecting cases); see also
Argueta, 643 F.3d at 70. Neither the parties nor the District
Court mention ―supervisory liability‖ as a possible basis for
recovery here. As we understand his claims, Bistrian alleges
that the named defendants directly and personally participated

21
 Moreover, the sufficiency of a plaintiff‘s allegations in
a Bivens action is ―inextricably interwined with‖ and ―directly
implicated by‖ the defense of qualified immunity. Iqbal, 556
U.S. at 673. Under that defense, ―government officials
performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.‖
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For a
constitutional right to be clearly established, its contours
―must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.‖
Anderson v. Creighton, 483 U.S. 635, 640 (1987). To meet
this test, generally ―there must be sufficient precedent at the
time of [the defendant‘s] action, factually similar to the
plaintiff‘s allegations, to put [the] defendant on notice that his
or her conduct is constitutionally prohibited.‖ McLaughlin v.
Watson, 271 F.3d 566, 572 (3d Cir. 2001). Thus, to
overcome the assertion of qualified immunity at the motion to
dismiss stage, a plaintiff must sufficiently plead not only a
violation of a constitutional or statutory right, but also a
violation of a clearly established one.

B. Counts I & II: Failure to Protect from
Inmate Violence

―Being violently assaulted in prison is simply not part
of the penalty that criminal offenders pay for their offenses
against society.‖ Farmer v. Brennan, 511 U.S. 825, 834
(1994) (quotation marks omitted). As such, the Eighth
Amendment‘s Cruel and Unusual Punishments Clause
imposes on prison officials ―a duty to protect prisoners from
violence at the hands of other prisoners.‖ Id. at 833

in the alleged unconstitutional conduct. That is the only
theory of recovery we consider.

22
(quotation marks omitted); see also Beers-Capitol v. Whetzel,
256 F.3d 120, 130-33 (3d Cir. 2001); Hamilton v. Leavy, 117
F.3d 742, 746 (3d Cir. 1997).

The Cruel and Unusual Punishments Clause, however,
does not apply until an inmate has been both convicted of and
sentenced for his crimes. See Graham v. Connor, 490 U.S.
386, 392 n.6 (1989); Hubbard v. Taylor, 399 F.3d 150, 164
(3d Cir. 2005) (hereinafter ―Hubbard I‖). Thus, an inmate
awaiting sentencing must look to either the Fifth
Amendment‘s or the Fourteenth Amendment‘s Due Process
Clause for protection. See Bell v. Wolfish, 441 U.S 520, 535
n.16 (1979); Fuentes v. Wagner, 206 F.3d 335, 341-42 (3d
Cir. 2000). We have not yet in a precedential opinion
recognized that an unsentenced inmate may bring a due
process-grounded failure-to-protect claim of the sort that a
sentenced inmate can bring under the Eighth Amendment.
But it is well established that, under the Constitution‘s
guarantees of due process, an unsentenced inmate ―is
entitled[,] at a minimum, to no less protection than a
sentenced inmate is entitled to under the Eighth Amendment.‖
Fuentes, 206 F.3d at 344 (quotation marks and alterations
omitted). Therefore, Bistrian — as an inmate who at all
relevant times was either not yet convicted or convicted but
not yet sentenced — had a clearly established constitutional
right to have prison officials protect him from inmate
violence.6

Still, not ―every injury suffered by one prisoner at the
hands of another . . . translates into constitutional liability for

6
Although it is a misnomer, the case law often refers to an
inmate awaiting sentencing — even if he has pled guilty to
his crimes or been convicted after trial — as a ―pretrial
detainee.‖ See, e.g., Fuentes. 206 F.3d at 341-43.

23
prison officials responsible for the victim‘s safety.‖ Farmer,
511 U.S. at 834. To state a claim for damages against a
prison official for failure to protect from inmate violence, an
inmate must plead facts that show (1) he was incarcerated
under conditions posing a substantial risk of serious harm, (2)
the official was deliberately indifferent to that substantial risk
to his health and safety, and (3) the official‘s deliberate
indifference caused him harm. Id. at 834; Hamilton, 117 F.3d
at 746.

―Deliberate indifference‖ in this context is a subjective
standard: ―the prison official-defendant must actually have
known or been aware of the excessive risk to inmate safety.‖
Beers-Capitol, 256 F.3d 120 at 125. It is not sufficient that
the official should have known of the risk. Id. at 133. A
plaintiff can, however, prove an official‘s actual knowledge
of a substantial risk to his safety ―in the usual ways, including
inference from circumstantial evidence.‖ Farmer, 511 U.S. at
842. In other words, ―a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the
risk was obvious.‖ Id.

Prison officials may escape liability for deliberate
indifference claims in several ways. They ―might show, for
example, that they did not know of the underlying facts
indicating a sufficiently substantial danger and that they were
therefore unaware of a danger, or that they knew the
underlying facts but believed (albeit unsoundly) that the risk
to which the facts gave rise was insubstantial or nonexistent.‖
Id. at 844. ―In addition, prison officials who actually knew of
a substantial risk to inmate health or safety may be found free
from liability if they responded reasonably to the risk, even if
the harm ultimately was not averted.‖ Id. “Whether one puts
it in terms of duty or deliberate indifference, prison officials
who act reasonably cannot be found liable‖ on a failure-to-
protect claim. Id. at 845; see also Hamilton, 117 F.3d at 746

24
(noting that prison officials have ―a duty . . . to take
reasonable measures to protect prisoners from violence at the
hands of other prisoners‖) (quotation marks omitted).

1. The Officials‘ Alleged Deliberate
Indifference to the Risk Posed by
Bistrian‘s Continued Detention in the SHU

We do not infer that the decision to keep Bistrian in
the SHU after his cooperation became exposed was, by itself,
unreasonable. This is so whether we ―put[] it in terms of duty
or deliberate indifference.‖ Farmer, 511 U.S. at 845. More
is needed to sustain a failure-to-protect claim.

BOP regulations suggest that, generally speaking,
officials can better protect inmates when they are in the SHU
rather than the general population. See 28 C.F.R. § 541.22
(describing SHUs as units ―where inmates are securely
separated from the general inmate population‖ to ―help ensure
the safety, security, and orderly operation of correctional
facilities‖). According to Bistrian‘s own allegations, inmates
in the SHU are in solitary or near-solitary conditions ―for 23
to 24 hours a day, with little or no opportunity to interact with
other inmates.‖ App. 75 ¶ 12. Given these conditions, it
seems reasonable to assume that an inmate would generally
be less at physical risk in the SHU than elsewhere in the
prison.

Still, placing an informant in the SHU does not
automatically shield officials from suit. If they are
deliberately indifferent to a particular risk that an informant
faces while in the SHU, that may form the basis of a failure-
to-protect claim. For example, the Court of Appeals for the
Eighth Circuit has held that allowing an inmate with known,
violent propensities to have access to an informant in
administrative segregation was unreasonable and thus a

25
possible constitutional violation. Yet it described the decision
to move the informant to administrative segregation in the
first place as ―an apparently reasonable response.‖ Reece v.
Groose, 60 F.3d 487, 491 (8th Cir. 1995). Here too we
conclude that keeping Bistrian in the SHU was itself not
unreasonable, but we also consider whether Bistrian has
plausibly alleged that officials were deliberately indifferent to
specific and substantial risks that he faced while in the SHU.

2. The Officials‘ Alleged Deliberate
Indifference to the Risk Posed by
Bistrian‘s Placement in a Locked
Recreation Pen with Northington, et al.

After stripping away conclusory allegations not
entitled to the presumption of truth, we conclude that Bistrian
states a plausible failure-to-protect claim against the ten
Prison Management Defendants, Lts. Rodgers and Robinson,
and Sr. Officer Bowns based on Bistrian‘s placement in the
recreation yard with Northington and his gang. First, Bistrian
alleges that putting him in a locked recreation area with
Northington et al. posed a substantial risk of serious harm
because (a) Northington and others knew of Bistrian‘s
cooperation with prison officials plus (b) Northington had a
violent criminal past and had previously threatened to attack
Bistrian in the recreation yard because of that cooperation.
Second, Bistrian alleges that officials were deliberately
indifferent to the obvious risk posed because they made no
attempt to prevent his placement in the yard with Northington
despite the fact that he (Bistrian) repeatedly advised the
officials responsible for the photocopying operation of the
threats Northington and others made. Third, Bistrian pleads
causation: Northington and two other inmates violently
attacked him on June 30, 2006 in the recreation yard because
he cooperated with prison officials, not for some other reason.

26
We consider the supporting factual allegations in further
detail.

First, Bistrian has plausibly alleged that Northington
and other inmates knew that he was cooperating with prison
officials. Bistrian claims that ―[o]n one particular occasion,‖
after FDC officials photocopied an intercepted note, they
placed the photocopy in the delivery envelope instead of the
original. App. 91 ¶ 84. It is reasonable to infer that the
intended recipient could recognize the difference between a
hand-written note and a photocopy, and immediately assume
Bistrian‘s cooperation with prison officials. Bistrian also
alleges that, on unspecified occasions, officials failed to
return to him all notes for delivery. App. 91 ¶ 85. Again, it is
reasonable to infer that the inmates who sent the undelivered
notes eventually learned that they were not delivered and
assumed Bistrian‘s cooperation with prison officials. We are
further convinced of the reasonableness of these inferences
because Bistrian began receiving multiple threats from the
notes‘ intended recipients, including Northington, who
threatened him on more than one occasion when they were
together in the recreation yard. App. 91-92 ¶ 86.

Next, having plausibly pled that Northington and other
inmates knew of his cooperation, Bistrian has also plausibly
pled that that they were likely to retaliate violently if placed
in the same locked recreation cage. Northington was not a
non-violent, white-collar criminal. He was a member of a
violent drug gang with a prior conviction for (among other
things) robbery and aggravated assault. App. 89 ¶¶ 74-75. At
the time he was also a co-defendant in an ongoing
prosecution that involved substantial witness intimidation,
death threats to witnesses and law enforcement, and a
firebombing that killed six family members of the
Government‘s chief cooperating witness. App. 90 ¶¶ 78-79.
Not only did Northington have violent propensities, but he

27
made his violent intentions quite clear by threatening Bistrian
on more than one occasion when they were together in the
recreation yard. App. 91-92 ¶ 86

Turning to the officials‘ supposed deliberate
indifference, Bistrian plausibly alleges that certain prison
officials actually knew that he faced an excessive risk of harm
by being placed in the SHU recreation yard with Northington
and his cronies but failed to take any preventive measures.
According to Bistrian, he ―repeatedly advised (both verbally
and in writing)‖ FDC officials, including Lts. Gibbs, Rodgers,
and Robinson, Sr. Officers Bowns, Jezior, and Bergos, and
Special Investigative Agents McLaughlin and Garraway, of
the multiple threats Northington and others made after
Bistrian‘s cooperation was exposed as well as the specific risk
that he would suffer serious harm if placed in the recreation
yard with them at same time. App. 92 ¶ 87. Yet, based on
what is before us, nothing was done to abate the potential
threat.

We acknowledge that when inmates claim they are in
danger, they confront prison officials with an ―arduous task.‖
Young v. Quinlan, 960 F.2d 351, 363 n.23 (3d Cir. 1992).
―[P]risoners may feign their fear of physical harm simply to
manipulate a transfer,‖ in the hope, for example, of obtaining
more desirable living arrangements. Id. (quotation marks
omitted). But here, Bistrian sets out sufficient factual
allegations, which we must accept as true, that make his
repeated pleas radically different from an out-of-the-blue and
unadorned ―I‘m-in-trouble‖ entreaty. The eight officials that
Bistrian claims he ―repeatedly advised (both verbally and in
writing)‖ were the very officials that orchestrated the botched
note-photocopying operation. App. 90 ¶¶ 80-82. Given their
familiarity with the scheme and the players involved, it is
quite plausible that they knew Bistrian‘s cries for help were
legitimate and that he faced a substantial risk of serious harm.

28
After all, the genesis of the operation was a desire to assist an
FBI investigation into violent criminal activity by
Northington and others that included, among other things,
substantial witness intimidation. App. 90 ¶ 78.

Moreover, the alleged number of tortfeasors in this
case does not undermine the plausibility of the underlying
torts. In Young v. Quinlan, we allowed an inmate‘s failure-to-
protect claim to proceed past summary judgment when,
among other things, he claimed to have ―told [ten named
prison officials] several times that he was concerned for his
safety and needed to be placed in protective custody,‖ and
each of these ten officials had failed to respond reasonably to
stop the assaults by other inmates. 960 F.2d 351, 363 (3d Cir.
1992). Here too the fact that Bistrian claims to have
specifically warned eight officials of the risks he faced does
not transform his allegations into impermissible ―group
pleading.‖

In addition, it is reasonable to infer at this early stage
that the other Prison Management Defendants also knew of
the substantial risk Bistrian faced by being put in the same
locked recreation yard as Northington and failed to respond
reasonably. Bistrian claims that the ten Prison Management
Defendants met ―[o]n a weekly basis . . . to review the list of
inmates in the SHU and discuss and determine which inmates
would be released from the SHU and which inmates would
remain confined.‖ App. 80 ¶ 38. Five (Gibbs, Jezior, Bergos,
McLaughlin, and Garraway) of those ten people were
involved in the note operation and, for the reasons discussed
above, plausibly were aware of the risk Bistrian faced.
Affording Bistrian all reasonable inferences from his
allegations and construing them in the light most favorable to
him, as we must, it is plausible that these five Appellants
discussed the problems with the note operations and the
threats Bistrian repeatedly reported with the remainder of the

29
Prison Management Defendants during their weekly
meetings.

Of course, discovery may reveal that some Prison
Management Defendants did not know that the lid had been
blown off the note sting, or, if they did know, that some
objected to Bistrian‘s continued use of the recreation yard
with the inmates he cooperated against. At this point,
however, we cannot expect clairvoyance from Bistrian. He
obviously was not present for Prison Management
Defendants‘ meetings, but he has alleged other facts that
plausibly suggest that they knew about his situation and failed
to respond. Further investigation will show what was
discussed behind closed doors.

Finally, Bistrian has alleged adequate facts to suggest
that he was attacked as a result of his being an informant and
the FDC officials‘ failure to respond reasonably to the
dissemination of that fact. It can be plausibly inferred from
the fact Northington himself was one of the assailants that he
attacked Bistrian because of the latter‘s cooperation. Further,
Northington‘s behavior immediately before and after that
attack also suggests that it occurred because Bistrian was an
informant. Northington and two other SHU inmates
approached Bistrian in the SHU recreation pen and began
arguing about a note that he failed to deliver. App. 93 ¶ 92.
In a post-attack interview, Northington complained about
being in prison ―because of rats‖ and lamented how Bistrian
was ―being used to get him [Northington] another case.‖
App. 237.

In sum, Bistrian has stated a plausible claim that
thirteen officials violated their constitutional duty to protect
him from inmate violence by being deliberately indifferent to
the risk posed by his placement in the recreation yard with
Northington and others who knew of his prior complicity with

30
prison authorities. If this claim fails to survive a motion to
dismiss, little does.

3. The Officials‘ Alleged Deliberate
Indifference to the Risk Posed by
Bistrian‘s Placement in a Locked
Recreation Pen with Taylor

Given prisoners‘ attitudes about ―snitches,‖ it is
reasonable to infer that placing Bistrian in a locked recreation
pen with any violent inmates, not only those he specifically
cooperated against, created a substantial risk of serious harm.
But Bistrian does not allege that Taylor had any connection to
Northington and his cohorts or that Taylor otherwise attacked
him because he was an informant. Instead, Bistrian refers to
Taylor‘s ―history of violent assaults against other inmates‖ in
his complaint, and generally creates the impression that
Taylor‘s attack was unprovoked, inexplicable, and unrelated
to his participation in the note-copying operation. App. 96 ¶
105; 97 ¶ 107; 110 ¶ 158.7 Thus, according to Bistrian, the
risk of the harm that occurred was the risk that an inmate with
a history of violence might attack another inmate for an
unknown reason. We cannot conclude on these allegations
that prison officials were deliberately indifferent to such a
speculative risk.

7
Lt. Acker‘s report of the incident, which was attached to
Bistrian‘s complaint, suggests the attack may have been
motivated by Taylor‘s belief that Bistrian was a racist. App.
276. Bistrian makes no reference in the complaint itself to
the apparent racial tensions infecting FDC Philadelphia at the
time, which we described in our opinion in Taylor‘s case, nor
to Taylor‘s allegations that Bistrian instigated the attack in the
yard by telling Taylor that he was ―going down.‖ See Taylor,
686 F.3d at 185.

31
 4. The Officials‘ Alleged Failure to Intervene
Appropriately in the Assaults

In Smith v. Messinger, we held that a corrections
officer who fails to intervene when other officers are beating
an inmate may be liable on a failure-to-protect claim if the
officer had ―a realistic and reasonable opportunity to
intervene‖ and ―simply refused to do so.‖ 293 F.3d 641, 650-
51 (3d Cir. 2002). We are hardly breaking new ground by
extending this standard to inmate-on-inmate attacks. As the
Court of Appeals for the Seventh Circuit has observed, if an
officer witnesses an inmate assault and fails to intervene, ―his
actions would seemingly constitute a paradigm case of
deliberate indifference.‖ Grieveson v. Anderson, 538 F.3d
763, 778 (7th Cir. 2008) (quotation marks omitted).

In this case, Bistrian faults the guards who were
present for his assaults for not responding quickly and
aggressively enough. No doubt, there are some
circumstances in which an officer‘s response to an inmate
attack is so half-hearted that it effectively amounts to no
response at all. If well-pled, such a claim can survive a
motion to dismiss. But surely there are cases at the other end
of the spectrum in which an inmate fails to allege that an
officer‘s response was so unreasonable as to give rise to an
entitlement to relief. For example, if an inmate alleges that an
assailant landed two punches in rapid succession, the fact that
guards saw the first punch and reacted quickly enough to
prevent a third, but not the second, is not unreasonable. Such
an allegation would not survive a motion to dismiss. The key
is whether prison officials acted reasonably; if so, they cannot
be found liable on a failure-to-protect claim. See Farmer,
511 U.S. at 845.

With respect to the Northington attack, Bistrian claims
that Sr. Officer Jezior was deliberately indifferent because he

32
intervened ―[o]nly after several minutes of continued
pummeling.‖ App. 93-94 ¶ 95. But, according to Jezior‘s
post-incident memorandum (which Bistrian attached to his
complaint), Jezior was not standing around and doing
nothing. He came to the SHU recreation pen in response to
an alarm and, when he arrived, several officers (himself
included) unsuccessfully ordered the assailant to stop. App.
250. When ―enough staff were present,‖ they entered the pen
and subdued the assailant. Id. At this point, we must
construe the facts in the light most favorable to Bistrian and
afford him all reasonable inferences. With that in mind, we
believe that Bistrian‘s allegations raise enough questions
about the reasonableness of Jezior‘s response to preclude
dismissal. How long did Jezior shout orders to Northington
before realizing that his words were futile? How often, in
Jezior‘s experience, does a prisoner stop violently assaulting
another inmate simply because a guard orders him to do so?
How many guards are ―enough‖ to break up a fist fight?
Discovery is needed. It may be that summary judgment for
Jezior is on the horizon. But right now we conclude that
Bistrian has plausibly alleged that Jezior responded
unreasonably to the attack, and thus this claim survives a
motion to dismiss.
We reach a different result with respect to the Taylor
attack. To repeat, officials at the scene attempted to stop the
attack by firing pepper spray into the recreation cage. When
this proved ineffective, they used a ―Tactical Blast Stun
Munition‖ to incapacitate Taylor. App. 97 ¶ 109; 269.
Bistrian insists that Captain Knox and Lts. Acker and
Dempsey acted with deliberate indifference by delaying their
use of the Tactical Blast Stun Munition and their decision to
intervene forcibly. App. 97 ¶ 111. Given the facts alleged, it
is difficult, if not impossible, for us to glean deliberate
indifference from the guards‘ weapon of choice. Although
the pepper spray ultimately proved ineffective, Bistrian does

33
not allege facts that suggest the decision to use it was
unreasonable.

C. Count III: Punitive Detention

Next, Bistrian argues that his detention in
administrative segregation for 447 days deprived him of his
clearly established liberty interest to be free from punishment
before sentencing, in violation of the Fifth Amendment‘s Due
Process Clause.

It is important to explain the significance of Bistrian‘s
constitutional status as a ―pretrial detainee,‖ a category of
detainees that includes all inmates awaiting sentencing. A
conviction alone does not extinguish all liberty interests
protected by the Constitution‘s guarantee of due process:
―[t]he right to remain at liberty continues until a court
pronounces a judgment of sentence, although after a jury has
pronounced a guilty verdict the court may insist upon greater
assurance that a defendant will submit to sentence.‖ Cobb v.
Aytch, 643 F.2d 946, 962 (3d Cir. 1981) (en banc). As such,
pretrial detainees have ―federally protected liberty interests
that are different in kind from those of sentenced inmates.‖
Id. at 957. ―Unlike sentenced prisoners, who . . . must look to
state law for the protection of their personal liberties, pretrial
detainees have liberty interests firmly grounded in federal
constitutional law.‖ Id.

Given pretrial detainees‘ federally protected liberty
interests, the Supreme Court in Bell v. Wolfish held that
―under the Due Process Clause . . . a detainee may not be
punished prior to an adjudication of guilt in accordance with
due process of law.‖ 441 U.S. 520, 535 (1979).8 Still, ―[n]ot

8
Although pretrial detainees are, at least, on equal footing
with sentenced inmates when they claim that prison officials

34
every disability imposed during pretrial detention amounts to
‗punishment‘ in the constitutional sense . . . .‖ Id. at 537. For
example, conditions that are reasonably related to a penal
institution‘s interest in maintaining jail security typically pass
constitutional muster. Id. at 540. Under Bell, a ―particular
measure amounts to punishment when there is a showing of
express intent to punish on the part of detention facility
officials, when the restriction or condition is not rationally
related to a legitimate non-punitive government purpose, or
when the restriction is excessive in light of that purpose.‖
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (quoting
Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999)). ―In
evaluating a pretrial detainees‘s claim of unconstitutional
punishment, courts must examine the totality of the
circumstances within the institution.‖ Id. Since Bell, we have
conducted exhaustive examinations of the Court‘s ―no-
punishing-pretrial-detainees‖ rule and applied the Court‘s
teachings in a long series of decisions. See, e.g., Hubbard v.
Taylor, 538 F.3d 229, 231-36 (3d Cir. 2008) (hereinafter
―Hubbard II‖); Stevenson, 495 F.3d at 67-69; Hubbard I, 399
F.3d at 157-68; Fuentes, 206 F.3d at 341-43; Union Cnty. Jail
Inmates v. Di Buono, 713 F.2d 984, 991-92 (3d Cir. 1983).

Despite our history with the Bell test and the
distinction it draws between those inmates sentenced and
those not, Appellants confusingly pin their qualified
immunity hopes to our decisions in Griffin v. Vaughn, 112

failed to protect them from other inmates, they have an
indisputable advantage when they claim that they were
unconstitutionally punished. See Bell, 441 U.S. at 535 n.16
(1979) (―Due process requires that a pretrial detainee not be
punished. A sentenced inmate, on the other hand, may be
punished, although that punishment may not be ‗cruel and
unusual‘ under the Eighth Amendment.‖).

35
F.3d 703 (3d Cir. 1997), and Fuentes v. Wagner, 206 F.3d
335 (3d Cir. 2000). See Appellants‘ Br. 48-49. In Griffin we
held that the conditions experienced by a sentenced inmate
while in the SHU did not impose on him an ―atypical and
significant hardship‖ such that he was deprived of a state-
created liberty interest in violation of the Fourteenth
Amendment‘s Due Process Clause. 112 F.3d at 706 (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)). But as Griffin
itself makes clear and as we have explained at least twice
before, Sandin‘s ―atypical and significant hardship‖ test
applies only to sentenced inmates, while the Bell test applies
to pretrial detainees. See Stevenson, 495 F.3d at 69 n.4
(―Sandin does not apply [to pretrial detainees]. Sandin
concerned punishment of a sentenced prisoner, and therefore
required a completely different analysis.‖) (quoting Fuentes,
206 F.3d at 342 n.9).

Fuentes also offers Appellants no help. They point to
our statement in that case that ―it is impractical to draw a line
between convicted prisoners and pretrial detainees for the
purpose of maintaining jail security.‖ Appellants Br. 49
(quoting Fuentes, 206 F.3d at 347). This selective quotation
is, at best, misguided and closer to misleading. As we
explained in Fuentes, ―claims based on excessive force and
claims based on conditions of confinement are different in
kind.‖ 206 F.3d at 347 (quoting Valencia v. Wiggins, 981
F.2d 1440, 1446 (5th Cir. 1993)). Because of this difference,
we did not apply the Bell due process standard concerning
confinement to a pretrial detainee‘s excessive force claim.
Instead, we held that the more demanding ―Eighth
Amendment cruel and unusual punishments standards found
in Whitley v. Albers, 475 U.S. 312 (1986) and Hudson v.
McMillian, 503 U.S. 1 (1992) apply to a pretrial detainee‘s
excessive force claim arising in the context of a prison
disturbance.‖ Id. (emphasis in original). Not surpisingly, in
that context we could ―draw no logical or practical distinction

36
between a prison disturbance involving pretrial detainees,
convicted but unsentenced inmates, or sentenced inmates.‖
Id. Nor could we expect prison guards ―to draw such precise
distinctions between classes of inmates when those guards are
trying to stop a prison disturbance.‖ Id. at 347-48. We are
puzzled, to say the least, how Fuentes assists Appellants in
their assertion that they are entitled to qualified immunity
from Bistrian‘s conditions-of-confinement claim.

Here, Bistrian alleges that officials punished him by
placing him in the SHU for 447 days of administrative
segregation. With respect to the nature of his confinement in
the SHU, he claims:

 ―Inmates … receive meals in their cells with no
communal time permitted‖;

 ―Recreational activities in the SHU are virtually
nonexistent, and basic supplies such as paper
and pencils are difficult to obtain‖;

 ―Inmates housed in the SHU are confined to
solitary or near-solitary confinement … for 23
to 24 hours a day, with little or no opportunity
to interact with other inmates…,‖ together with
―sensory deprivation, with poorly lighted cells
and smoked windows to prevent outside
visibility‖;

 ―Medical care in the SHU is absent or
deficient‖; and

 ―Inmates housed in the SHU have reduced
access to personal property and to legal
materials and have limited ability to file

37
 administrative grievances,‖ and ―[a]ccess to
legal counsel is limited.‖

App. 75 ¶ 12. In addition, Bistrian alleges that ―[d]ue to the
SHU‘s isolative and claustrophobic nature, suicide attempts
are not uncommon in the SHU … [, where] there is a greater
tendency among inmates to attempt suicide‖ than in other
parts of the prison. App. 75 ¶ 13.

Given these conditions, Bistrian‘s complaint raises the
reasonable inference that some of his time spent in
administrative detention was excessive in light of any
legitimate non-punitive government purpose for his
segregation. Bistrian was first confined in administrative
detention in the SHU from November 18, 2005 until
December 9, 2005, pending a hearing on the ―minor offense
of telephone abuse – non-criminal.‖ App. 85 ¶¶ 57-59. After
a DHO sanctioned him to 30 days‘ disciplinary segregation,
he was released from the SHU on January 9, 2006. App. 85
¶¶ 59. Given Appellants‘ failure to assert any legitimate non-
punitive need for the segregation, Bistrian has plausibly
alleged that it was excessive to keep him in the SHU for
nearly a month while awaiting a hearing on seemingly minor
telephone infractions.

The same may be said for Bistrian‘s second stint in the
SHU for alleged telephone infractions, starting on January,
2006, though only until April or May, 2006, when Bistrian
agreed to intercept notes and cooperate against his fellow
detainees. For the remainder of his second stay and his third
(from December 22, 2006 to January 25, 2007), prison
officials had a legitimate non-punitive purpose for Bistrian‘s
detention in the SHU — having him participate in the note-
copying scheme and keeping him in what they thought was
the safest possible place in the prison. With respect to his
fourth confinement in the SHU, however, it is plausibly

38
alleged that Warden Levi expressly intended to punish
Bistrian by placing him there after his lawyer challenged his
previous confinement.

As discussed above, it is sufficient at this point that
Bistrian has alleged that the Prison Management Defendants
each shared responsibility for his placement in the SHU. He
has not sufficiently pled, however, how Lt. Rodgers, Lt.
Robinson, and Lt. Armisak, who are not among the Prison
Management Defendants, were involved in the violation of
his substantive due process rights.

D. Count IV: Violation of Bistrian’s Procedural
Due Process Rights

―Although pretrial detainees do not have a liberty
interest in being confined in the general prison population,
they do have a liberty interest in not being detained
indefinitely in the SHU without explanation or review of their
confinement.‖ Stevenson, 495 F.3d at 69. Thus, procedural
due process requires prison officials to ―provide detainees
who are transferred into more restrictive housing [,] for
administrative purposes only [,] an explanation of the reason
for their transfer as well as an opportunity to respond.‖ Id. at
70.

Although Stevenson was decided in July 2007, after
Bistrian had already been confined in the SHU three times,
the rule the case announces was ―compelled by our holding in
Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000).‖ Stevenson, 495
F.3d at 69. In Shoats, we reaffirmed that sentenced inmates
are entitled to minimal due process under the Supreme
Court‘s decision in Hewitt v. Helms, 459 U.S. 460 (1983),
which held that the removal of a sentenced inmate from the
general prison population and his transfer into administrative
segregation requires at least a minimal degree of process. 213

39
F.3d at 144. As we explained in Stevenson, ―the protections
due to sentenced inmates [as discussed in Hewitt and Shoats]
provide a floor for what pretrial detainees may expect.‖ 495
F.3d at 69. Therefore, the law was sufficiently clear prior to
Stevenson that Plaintiff was entitled to an explanation and
opportunity to challenge his confinement.

Here, however, the District Court did not address
Bistrian‘s procedural due process claim at all. Taking a
similar route to the one we took in Stevenson, we ask the
Court to consider the issue in the first instance by
―examin[ing] the asserted purposes for [Bistrian‘s] detention,
and determin[ing] whether sufficient process has been
afforded.‖ Id. at 71.

E. Count X: First Amendment Retaliation

Bistrian claims the Prison Management Defendants
detained him in the SHU for a fourth time on September 13,
2007, in retaliation for protesting his prior confinements in
the SHU. App. 101 ¶ 128. As noted, the day after the
Assistant U.S. Attorney handling Bistrian‘s case notified
officials at FDC Philadelphia that Bistrian had challenged his
prior confinements in the SHU, he was (1) returned to the
SHU, (2) received an administrative detention order
indicating that he was being held ―pending investigation‖ of
alleged telephone infractions, and (3) attended a hearing
before the Unit Disciplinary Committee (where he promptly
received the sanction of a loss of phone privileges for 60
days). App. 101 ¶¶ 128-30. After Bistrian‘s counsel asked
Warden Levi to release Bistrian from the SHU, the Warden
purportedly told Bistrian he ―would not see the light of day
again.‖ App. 102 ¶¶ 133. Levi also allegedly sent FDC staff
members to coerce Bistrian into confessing by telling him that
he would not be released from the SHU unless he confessed
to the alleged violations. App. 102 ¶ 134.

40
 Retaliating against a prisoner for the exercise of his
constitutional rights is unconstitutional. See, e.g., Mitchell v.
Horn, 318 F.3d 523, 529-31 (3d Cir. 2003); Rauser v. Horn,
241 F.3d 330, 333-34 (3d Cir. 2001); Allah v. Seiverling, 229
F.3d 220, 224-26 (3d Cir. 2000). To state a claim for
retaliation, a plaintiff must allege that: (1) he was engaged in
constitutionally protected conduct, (2) ―he suffered some
‗adverse action‘ at the hands of the prison officials‖; and (3)
―his constitutionally protected conduct was ‗a substantial or
motivating factor‘ in the decision‖ to take that action.
Rauser, 241 F.3d at 333.9

The plausibility of Bistrian‘s allegations with respect
to the first and third elements is not in dispute. Instead,

9
We acknowledge that the Supreme Court has been reluctant
to extend the Bivens implied right of action to new contexts,
and in recent cases has conspicuously avoided extending it to
First Amendment claims. See Reichle v. Howards, 132 S.Ct.
2088, 2093 n.4 (2012) (―We have never held that Bivens
extends to First Amendment claims.‖); Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009) (―Because implied causes of action are
disfavored, the Court has been reluctant to extend Bivens
liability to any new context or new category of defendants.
. . . Indeed, we have declined to extend Bivens to a claim
sounding in the First Amendment. Petitioners do not press
this argument, however, so we assume, without deciding, that
respondent‘s First Amendment claim is actionable under
Bivens.‖). Our Court, however, relying on Bivens, has held
that ―a federal cause of action for damages may be implied
directly from the [F]irst [A]mendment.‖ Milhouse v. Carlson,
652 F.2d 371, 374 (3d Cir. 1981); see also Paton v. La Prade,
524 F.2d 862, 869-70 (3d Cir. 1975).

41
Appellants argue that Bistrian has not plausibly alleged an
―adverse action‖ because he was not ―impeded in his efforts
to complain to the outside world about his confinement in
[the] SHU.‖ Appellants‘ Br. 55. But whether placement in
the SHU was ―sufficient to deter a person of ordinary
firmness from exercising his constitutional rights‖ is an
objective inquiry and ultimately a question of fact. Rausser,
241 F.3d at 333; see also Allah, 229 F.3d at 225. In Allah, we
explained that where ―confinement in administrative
segregation resulted, inter alia, in reduced access to phone
calls, reduced access to the commissary, reduced access to
recreation, confinement in his cell for all but five hours per
week, denial of access to rehabilitative programs and,
significantly, inadequate access to legal research materials
and assistance,‖ ―[a] fact finder could conclude from those
facts that retaliatory continued placement in administrative
confinement would ‗deter a person of ordinary firmness from
exercising his First Amendment rights.‘‖ Id. (quoting Suppan
v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). As described
above, Bistrian has alleged very similar facts as to the nature
of this confinement in the SHU. Thus, his allegations create a
plausible inference that continued placement in the SHU was
retaliatory and in violation of his free speech rights.
V. Conclusion

For these reasons, we affirm in part, reverse in part,
and remand for proceedings consistent with this opinion. To
summarize, in addition to Bistrian‘s deliberate indifference
claim against Reynolds, which was not at issue here, the
following claims against the following defendants remain.

Count I: Fifth Amendment Substantive Due Process (Failure
to Protect)

 Claim: Appellants were deliberately indifferent to the

42
 risk posed by placing Bistrian in the same locked
recreation pen as Northington and his gang.

 Appellants/defendants (13): (1-10) The 10 Prison
Management Defendants; (11) Sr. Officer Bowns; (12)
Lt. Rodgers; and (13) Lt. Robinson.

 Claim/defendant: Jezior was deliberately indifferent to
Bistrian‘s safety during the Northington attack.

Count III: Fifth Amendment Substantive Due Process

(Punitive Detention)

 Claim: Bistrian‘s first detention in the SHU, his
second until the beginning of the note-copying
operation, and his fourth, deprived him of his liberty
interest, as an inmate awaiting sentencing, to be free
from punishment.

 Appellants/defendants (10): (1-10) The 10 Prison
Management Defendants.

Count V: Fifth Amendment Procedural Due Process

 Claim: Bistrian‘s placement and continued detention
in the SHU failed to comply with the Fifth
Amendment‘s procedural due process requirements.

 Appellants/defendants (11): (1-10) The 10 Prison
Management Defendants; and (11) Lt. Wilson.

43
Count X: First Amendment (Retaliation)

 Claim: Bistrian‘s placement and continued detention
in SHU after his attorney challenged Bistrian‘s
previous placement was retaliatory for exercising his
First Amendment rights.

 Appellants/defendants (10): (1-10) The 10 Prison
Management Defendants.

44