Escobarrivera v. Whitaker ( 2022 )

Case: 21-30147 Document: 00516563029 Page: 1 Date Filed: 12/01/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2022
No. 21-30147 Lyle W. Cayce
Clerk
Renil Escobarrivera,
Plaintiff—Appellant,
versus
Antonio Whitaker, Warden, Individual Capacity for Damages, Official
Capacity for Injunctive Relief; Tim Hooper, Warden, Louisiana
State Penitentiary; Joseph LaMartinaire; Tim Delaney;
James LeBlanc, Warden, Individual Capacity for Damages, Official
Capacity for Injunctive Relief,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-498
Before Davis, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Proceeding pro se, Plaintiff-Appellant Renil Escobarrivera appeals the
dismissal of his suit against Defendants-Appellees James LeBlanc, the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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secretary of the Louisiana Department of Corrections, warden Darrel
Vannoy, 1 and assistant wardens Joseph LaMartinaire, Tim Delaney, and
Antonio Whitaker. For the following reasons, we AFFIRM in part and
VACATE and REMAND in part.
I. Background
Escobarrivera, who is confined at the Louisiana State Penitentiary in
Angola, Louisiana, has been in closed custody restriction (“CCR”) for four
and a half years. Escobarrivera was initially placed in CCR in December 2017
after prison officials received an anonymous letter accusing him of planning
to escape.
CCR at Angola is the effective equivalent of solitary confinement.
According to Escobarrivera, inmates in CCR are confined to a one-person
cell for twenty-three hours per day. 2 Unless otherwise restricted, inmates
also receive one hour of yard time three days per week and two contact visits
per month. Inmates in CCR are unable to attend religious services and have
no access to email or educational programs.
As relevant to this appeal, Escobarrivera’s initial complaint advanced
three claims against Defendants. First, Escobarrivera asserted that his
placement and continued confinement in CCR violates his Fourteenth
Amendment due process rights. Second, Escobarrivera asserted that
Defendant Whitaker retaliated against him by ordering his transfer to a
different CCR unit after he complained about his continued confinement.
Third, Escobarrivera alleged an equal protection violation premised on the
1
Warden Darrel Vannoy has been replaced by Warden Tim Hooper.
2
Defendants dispute this fact and instead assert that inmates in CCR receive two
hours per day out of their cells. Because the distinction is immaterial to our analysis, we do
not address this issue.
2
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allegation that he has spent more time in CCR than inmates with more
egregious rule violations and that release from solitary confinement is based
solely on Defendants’ personal feelings towards the inmates. Escobarrivera
sought damages against Defendants in their individual capacities pursuant to
42 U.S.C. § 1983 as well as injunctive relief against Defendants in their
official capacities.
After the district court dismissed several of Escobarrivera’s claims for
failure to state a claim, the parties filed opposing summary judgment motions
regarding Escobarrivera’s remaining causes of action. Adopting the
magistrate judge’s recommendation in full, the district court concluded that
Defendants were entitled to qualified immunity on Escobarrivera’s due
process claim and accordingly granted their motion for summary judgment.
The district court also dismissed Escobarrivera’s retaliation and equal
protection claims sua sponte for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e) and 1915A. Notably, the district court did not address
Escobarrivera’s claim for injunctive relief against Defendants in their official
capacities but nonetheless entered a final judgment. This appeal timely
followed.
II. Discussion
The district court had jurisdiction under 28 U.S.C. § 1331, and we
have jurisdiction under 28 U.S.C. § 1291. We discuss the district court’s
dismissal of Escobarrivera’s retaliation and equal protection claims, the
district court’s qualified immunity determination and grant of summary
judgment, and Escobarrivera’s claim for injunctive relief, in turn, below. 3
3
At the outset, we note that Escobarrivera has abandoned many of his claims on
appeal. Pro se briefs are afforded liberal construction, see Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam), but pro se litigants are not “exempt . . . from compliance with
relevant rules of procedural and substantive law,” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
3
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A. 28 U.S.C. §§ 1915(e) and 1915A Dismissals
The district court dismissed Escobarrivera’s retaliation and equal
protection claims under 28 U.S.C. §§ 1915(e) and 1915A. Where, as here, a
prisoner is proceeding in forma pauperis, §§ 1915(e) and 1915A require a
court to dismiss an action or claim against a governmental entity or officer or
employee of a governmental entity that is frivolous or malicious or fails to
state a claim upon which relief may be granted. To determine whether a
complaint fails to state a claim in this context, courts apply the same standard
used for dismissal under Rule 12(b)(6). Legate v. Livingston, 822 F.3d 207,
209–10 (5th Cir. 2016). Accordingly, the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). We review a district court’s dismissal
under §§ 1915(e) and 1915A for failure to state a claim de novo. Legate, 822
F.3d at 209.
Escobarrivera’s retaliation claim against Defendant Whitaker is
premised on the allegation that Whitaker transferred him to a different CCR
unit after Escobarrivera complained about his continued confinement.
Escobarrivera, however, failed to allege any facts demonstrating that the
transfer to a different CCR unit was more than a de minimis adverse act. See
Morris v. Powell, 449 F.3d 682, 684–87 (5th Cir. 2006). For example,
Escobarrivera failed to plead that the unit to which he was transferred was
more dangerous or restrictive than his prior unit. Accordingly, without any
Nov. 1981) (per curiam). Because Escobarrivera does not sufficiently challenge the district
court’s holdings regarding his claims based on supervisory liability, his initial disciplinary
hearing, or the Eighth Amendment, we deem those claims abandoned and accordingly do
not address them.
4
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facts supporting actual retaliation, the district court properly dismissed this
claim.
Escobarrivera also advanced an equal protection claim, asserting that
he has spent more time in CCR than other inmates and that release from
solitary confinement is based solely on Defendants’ favoritism (or lack
thereof) towards those inmates. Because Escobarrivera failed to allege
membership in a protected class, he must establish that he, as a “class of
one,” was “intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Given that
prison officials are afforded wide deference in determining a prisoner’s
custodial status in order to maintain security, we conclude that Escobarrivera
failed to plead sufficient facts to carry this heavy burden. 4 See Hernandez v.
Velasquez, 522 F.3d 556, 562 (5th Cir. 2008) (per curiam). Escobarrivera’s
equal protection claim was accordingly properly dismissed.
B. Summary Judgment
The district court concluded that Defendants were entitled to
qualified immunity on Escobarrivera’s claim that his continued confinement
violates his Fourteenth Amendment due process rights, and it accordingly
granted summary judgment in favor of Defendants. Specifically, the district
court held that Escobarrivera’s alleged liberty interest was “not clearly
established based on the specific facts” alleged. We examine that analysis.
4
The magistrate judge noted that several district courts have held “class of one”
claims are largely, if not entirely, unavailable in the context of prison disciplinary
proceedings. Because we conclude that Escobarrivera failed to carry the heavy burden of
negating any rational basis for his CCR confinement, we do not address this observation.
5
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We review “a district court’s grant of summary judgment de novo,
applying the same standards as the trial court.” Griffin v. UPS, Inc., 661 F.3d
216, 221 (5th Cir. 2011). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
“A good-faith assertion of qualified immunity,” however, “alters the
usual summary judgment burden of proof.” Trent v. Wade, 776 F.3d 368, 376
(5th Cir. 2015) (internal quotation marks and citation omitted). In those
situations, once the defendants raise the defense, the burden shifts to the
plaintiff to raise a material fact issue that would show the absence of qualified
immunity. Id.Our qualified immunity analysis is a two-part process: (1) we ask
whether the alleged conduct has violated a federal right, Cole v. Carson, 935
F.3d 444, 451 (5th Cir. 2019) (en banc); and (2) we consider “whether the
right in question was clearly established at the time of the alleged violation”
such that the official was on notice of the unlawfulness of the conduct, id.(internal quotation marks and citation omitted). We need not decide the two
questions in order—we may decide the issue solely on the basis that a right
was not clearly established. Pearson v. Callahan, 555 U.S. 223, 236–37, 243
(2009). With this framework in mind, we turn to Escobarrivera’s due
process claim.
“[T]he Due Process Clause does not protect every change in the
conditions of confinement which has a substantial adverse effect upon a
prisoner.” Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). Therefore,
we must first consider whether Escobarrivera has been deprived of a liberty
or property interest and then examine whether the procedures related to that
deprivation were “constitutionally sufficient.” Meza v. Livingston, 607 F.3d
392, 399 (5th Cir. 2010) (quotation omitted). Escobarrivera argues that he
6
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has a clearly established liberty interest based on his continued confinement. 5
We disagree.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that
a prisoner’s liberty interests “will be generally limited to freedom from
restraint” that “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Id. at 484. Accordingly, and
because we afford wide deference to prison officials, we have consistently
held that “generally speaking, a prisoner has no liberty interest in his
custodial classification.” Hernandez, 522 F.3d at 562.
Whether a prisoner has raised a valid liberty interest as a result of
continued solitary confinement turns on whether that custodial status
“demonstrates extraordinary circumstances or, in other words, an atypical
and significant hardship.” Wilkerson v. Goodwin, 774 F.3d 845, 853 (5th Cir.
2014) (internal quotation marks and citation omitted). To make that
determination, we evaluate “the nature of the more-restrictive confinement
and its duration in relation to prison norms.” Id. (quotation omitted). These
two factors are considered on a sliding scale. See id. at 855–56. “[T]ruly
onerous conditions for a brief period of time may not be atypical; less onerous
conditions for an extended period of time may be.” Bailey v. Fisher, 647 F.
App’x 472, 476 (5th Cir. 2016) (per curiam).
5
Escobarrivera also claims a liberty interest based on his inability to seek a pardon
while in CCR and a property interest based on his inability to earn incentive pay while in
CCR. Neither assertion is availing. The speculative nature of an early release by pardon
does not involve a protected liberty interest, cf. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir.
2000) (holding that because consideration for parole in Texas is entirely speculative, it
cannot support a constitutional claim), and “[p]risoners have no constitutional right to be
paid for work performed in prison,” Rochon v. La. State Penitentiary Inmate Acct., 880 F.2d
845, 846 (5th Cir. 1989).
7
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We begin with the nature of confinement. In Wilkinson v. Austin, 545
U.S. 209 (2005), the Supreme Court articulated conditions of confinement
sufficiently severe to create a clearly established due process violation. Id. at
214–15. The Wilkinson Court evaluated an inmate’s confinement at the Ohio
Supermax facility, noting that his segregation denied him of almost all human
contact. Id. at 214. His cell door was made of solid metal, preventing him
from conversing with others; his cell light could be dimmed, but was on for
twenty-four hours a day; and he could exercise one hour per day, but only
while isolated and in a small indoor room. Id. Placement in the facility was
indefinite and disqualified inmates from otherwise eligible parole
considerations. Id. at 214–15.
In Bailey, we applied Wilkinson and concluded that the inmate’s
confinement was similarly severe. 647 F. App’x at 474–75. The inmate in
Bailey was on lockdown between twenty-three and twenty-four hours a day
in a one-person cell with a solid steel door. Id. When the inmate was
permitted to exercise, he remained isolated from other prisoners; visitation
and telephone use were either non-existent or rare; and the inmate had no
access to any privileges or programming, such as religious gatherings,
educational programs, entertainment, canteen, or packages. Id. at 475.
Moreover, any time the inmate left his cell he was handcuffed through a
mailbox-like structure and strip searched. Id.
We conclude Escobarrivera has failed to create a fact issue that his
confinement as of the date of final judgment in the district court rises to the
level of severity articulated in Wilkinson and Bailey. We recognize that
Escobarrivera is confined for twenty-three hours (or at least twenty-two
hours) a day in a cell by himself, eats his meals alone, is prevented from
attending church services, and his confinement is allegedly “indefinite.” But
important to the Court in Wilkinson was the “depriv[ation] of almost any
environmental or sensory stimuli and of almost all human contact.” 545 U.S.
8
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at 214. Escobarrivera’s confinement does not amount to such a deprivation.
Escobarrivera’s cell has bars as opposed to a steel door, allowing him the
opportunity to communicate with other inmates. He can roam the hall and
interact with others during his hour of release; he receives three additional
one-hour sessions a week outside; and he has access to visitation twice a
month. Accordingly, taking his facts as alleged as true, we cannot conclude
that Escobarrivera’s conditions of confinement alone are “atypical and
significant.” See Sandin, 515 U.S. at 484.
We now turn to the duration of Escobarrivera’s confinement.
Confinement in less severe conditions may still give rise to a protected liberty
interest if the confinement’s duration is excessive. Wilkerson, 774 F.3d at
855–56. In Wilkerson, for example, we considered a thirty-nine-year
confinement and concluded that such an “extraordinary duration” diluted
the materiality of the less severe confinement conditions. Id. The duration
of Escobarrivera’s confinement—which was three years and three months
when the district court entered summary judgment and is now four years and
six months—is significantly shorter than the duration at issue in Wilkerson.
Therefore, Escobarrivera’s length of confinement does not, at least at this
point, tip the scale towards severity.
Moreover, we have noted that a period of eight years in solitary
confinement with no prospect of immediate release in the near future is
sufficient to give rise to a liberty interest, but a period of two and one-half
years in confinement is not. Id. at 855 (citing Shoats v. Horn, 213 F.3d 140,
144 (3d Cir. 2000)). Escobarrivera’s confinement duration is closer to the
two-and-a-half-year mark that we have deemed insufficient to establish a
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liberty interest than it is to the eight-year mark we have deemed sufficient.
Therefore, Escobarrivera’s duration of confinement is also not atypical. 6
In sum, considering the conditions of Escobarrivera’s confinement
coupled with its duration, we conclude that Escobarrivera has not articulated
a clearly established due process liberty interest at this point. Because
Escobarrivera’s due process rights in these circumstances were not “so well
defined” that a “reasonable officer” would understand his conduct to be
unlawful, see Cole, 935 F.3d at 451, we affirm the district court’s grant of
summary judgment in favor of Defendants as to the claims asserted against
them in their individual capacities as of the date of the final judgment in the
district court. That said, this summary judgment affirmance does not
preclude what Escobarrivera may be able to assert as time continues.
C. Injunctive Relief
Escobarrivera’s complaint asserted claims against Defendants for
damages in their individual capacities and for injunctive relief in their official
capacities. As to the injunctive relief, Escobarrivera sought release from
solitary confinement and placement in the general population.
In their motion to dismiss, Defendants asserted that Escobarrivera’s
claims against them in their official capacities were barred by sovereign
immunity. In its report and recommendation on the motion to dismiss, the
magistrate judge did not address Defendants’ sovereign immunity argument.
The district court subsequently granted Defendants’ summary judgment
motion on the basis of qualified immunity and dismissed Escobarrivera’s
entire complaint with prejudice.
6
In Bailey, we indicated that a period of five years in solitary confinement might be
enough to implicate a protected liberty interest. 647 F. App’x at 477. Because he has not
yet reached that number, we need not address that case further at this point.
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Qualified immunity, however, does not bear on Escobarrivera’s
entitlement to injunctive relief. “Absolute and qualified immunity protect
only individuals from claims for damages; they do not bar official-capacity
claims or claims for injunctive relief.” Singleton v. Cannizzaro, 956 F.3d 773,
778 n.3 (5th Cir. 2020). Neither the magistrate judge nor the district court
independently addressed Escobarrivera’s official capacity claims before
dismissing the complaint. 7
The district court erred by failing to consider Escobarrivera’s official
capacity claims against Defendants. At the pleading stage, Escobarrivera
asserted sufficient factual allegations supporting an official capacity due
process claim. He alleged that he is denied meaningful review of his custodial
status because the hearings held regarding his CCR classification are
essentially shams. Specifically, Escobarrivera asserted that Defendants
contribute to the denial of meaningful review and due process by, inter alia,
basing CCR release decisions “solely on their personal like or dislike of a
prisoner.” Per Escobarrivera, Defendant LeBlanc similarly contributes to
the denial of review by failing to establish “a set criteria for CCR release,”
which creates a “biased and unjust” release system. On those facts,
Escobarrivera has established that his denial of procedural due process is
fairly traceable to Defendants and his requested relief—ordering Defendants
7
As noted above, a party must “press and not merely intimate” its claims to avoid
waiver, F.D.I.C. v. Mijalis, 15 F.3d 1314, 1326–27 (5th Cir. 1994), but “we construe briefs
of pro se litigants liberally,” applying “less stringent standards,” Alexander v. Verizon
Wireless Servs., L.L.C., 875 F.3d 243, 248 n.10 (5th Cir. 2017). In his brief on appeal,
Escobarrivera “asks this court to order his release into general population.” He also asserts
that he will never “have a real review” of his confinement “unless a court makes Louisiana
start conducting real board hearings.” Affording Escobarrivera the benefit of liberal
construction, we conclude that Escobarrivera’s claim for injunctive relief is adequately
preserved on appeal.
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to afford him the process he is due to determine release from CCR—would
redress that injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Moreover, Escobarrivera’s claims likely clear the state sovereign
immunity jurisdictional bar. State sovereign immunity precludes “private
suits against nonconsenting states in federal court,” see City of Austin v.
Paxton, 943 F.3d 993, 997 (5th Cir. 2019), and where a suit is effectively
against a state, state officials enjoy the same sovereign immunity, Tex.
Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020), cert. denied, 141
S. Ct. 1124 (2021). Ex parte Young, 209 U.S. 123 (1908), however, allows
suits for prospective injunctive relief or declaratory relief against a state
official acting in violation of federal law if the state official has a sufficient
connection to enforcement of the allegedly unconstitutional law. Id. at 157.
Because there is significant overlap between the Article III standing and the
Ex parte Young inquiries, the standing analysis can inform the state sovereign
immunity analysis. See City of Austin, 943 F.3d at 1002.
Here, each of the named Defendants has the authority to compel or
constrain Escobarrivera’s conditions of confinement by maintaining his
placement in CCR. See Tex. Democratic Party v. Hughs, 997 F.3d 288, 290–
91 (5th Cir. 2021). “[G]enerally all institutional litigation involving state
prisons, such as this case, is brought under the Ex parte Young exception.”
Hope v. Harris, 861 F. App’x 571, 578 (5th Cir. 2021) (per curiam) (internal
quotation marks and citation omitted), petition for cert. filed, No. 21-1065
(U.S. Jan. 28, 2022). Accordingly, though Escobarrivera cannot seek
monetary damages from Defendants in their official capacities, state
sovereign immunity does not bar Escobarrivera’s official capacity claims for
injunctive relief. See Abbott, 978 F.3d at 179.
That said, we are “a court of review, not of first view.” See Cutter v.
Wilkinson, 544 U.S. 709, 718 n.7 (2005). We accordingly vacate the district
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court’s order dismissing Escobarrivera’s injunctive relief claim against
Defendants in their official capacities and remand to the district court to
consider the claim in the first instance.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s dismissal
of Escobarrivera’s equal protection and retaliation claims and the district
court’s grant of summary judgment in favor of Defendants as to
Escobarrivera’s individual capacity claims. We VACATE the district
court’s grant of summary judgment in favor of Defendants as to
Escobarrivera’s official capacity injunctive relief claim and REMAND for
further proceedings consistent with this opinion. 8 We ORDER the district
court to grant Escobarrivera’s request for appointment of counsel.
8While the partial concurrence and partial dissent posits that we “take[]
[Wilkerson] to use duration of confinement alone to determine whether constitutional due
process protections must be afforded,” as is discussed above, we only reach the question
of the duration of Escobarrivera’s confinement after holistically considering the nature and
severity of that confinement. Partial Concurrence and Partial Dissent at 3, 5. In addition,
as we discuss in footnote six, the five year period of solitary confinement mentioned in
Bailey has not yet been matched in this case. Therefore, based upon both the duration and
nature of Escobarrivera’s confinement, we conclude that Escobarrivera did not create a fact
issue as to his confinement as of the date of the district court’s final judgment. However,
given the passage of time in this case, the district court can and should consider the current
circumstances of Escobarrivera’s confinement, including the duration of his confinement,
in its further proceedings as to the injunctive relief claim. In addition, in such proceedings,
the district court should reconsider the injunctive relief claim without respect to qualified
immunity considerations. Finally, the district court should allow appointed counsel for
Escobarrivera an opportunity to file an amended complaint on the injunctive relief claim
that accounts for all conditions relevant to his incarceration.
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Jennifer Walker Elrod, Circuit Judge, concurring 1 in part and
dissenting in part:
Mr. Escobarrivera has been in closed custody restriction, better
known as solitary confinement, since December of 2017. The parties quibble
over whether he is permitted to leave his cell for two or only one hour each
day. Regardless, he spends most of his time isolated in an eight-by-eight-foot
room. He is permitted one hour of outdoor exercise in a slightly larger “dog
cage,” but is limited to three such sessions per week. He is disqualified from
participating in religious and educational programming. While he is
technically permitted two contact visits each month, he is often unable to
secure the necessary approvals—he tells us that he has not had a single visitor
in over a year. He has not been given any indication of when, if ever, he will
be transferred back to the general population.
None of this factored into the district court’s conclusion that Mr.
Escobarrivera lacks a sufficient liberty interest in avoiding closed custody
restriction to invoke the constitutional floor of procedural due process
protections—or, at least, that any liberty interest he might have is not well-
enough established to put state officials on notice that those protections have
been triggered. Instead, brushing aside other considerations, the district
court held that Mr. Escobarrivera’s stint in solitary confinement has simply
been too short to raise constitutional concern. At the time, Mr. Escobarrivera
had been subject to restrictive conditions for “just over three years,” and
there was no authority on hand in which a prisoner had successfully claimed
a liberty interest after three years in solitary confinement. Escobarrivera v.
Vannoy, No. 3:19-CV-00498, 2021 WL 943106, at *1 (M.D. La. Mar. 12,
1
I agree with the majority opinion that the district court was correct to dismiss Mr.
Escobarrivera’s retaliation and equal protection claims. I also agree that the district court
erred by failing to consider Mr. Escobarrivera’s official capacity claims.
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2021). According to the district court, this “lack of clear guidance regarding
terms equivalent to Plaintiff’s term is dispositive, and entitle[d] Defendants
to qualified immunity.” Id.There are two problems with this holding. First, prior decisions do
not articulate a bright-line test that shackles a prisoner’s liberty interest solely
to the duration of his confinement. Our precedents sensibly treat duration as
but one consideration among many. Second, the district court’s invocation
of qualified immunity, to borrow a phrase, “smacks of unqualified
impunity.” Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J.,
concurring in part). “The law can be clearly established ‘despite notable
factual distinctions between the precedents relied on and the cases then
before the Court, so long as the prior decisions gave reasonable warning that
the conduct then at issue violated constitutional rights.’” Wilkerson v.
Goodwin, 774 F.3d 845, 857 (5th Cir. 2014) (quoting Kinney v. Weaver, 367
F.3d 337, 350 (5th Cir. 2004)). I would hold that they did so here.
Far from treating duration as dispositive, the Supreme Court has
looked to the nature of the conditions of confinement as the “touchstone” of
the liberty-interest analysis. Wilkinson v. Austin, 545 U.S. 209, 223 (2005).
Courts are to determine whether a prisoner’s conditions of confinement
impose an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)). Duration is certainly relevant to that assessment. And in
declining to recognize a liberty interest in an early case, the Supreme Court
relied heavily on the fact that the plaintiff had only been subjected to a 30-day
period of disciplinary confinement, reasoning that “significant amounts of
‘lockdown time’” are an ordinary part of prison life and do “not work a major
disruption in [the inmate’s] environment.” Sandin, 515 U.S. at 486–87. But
duration is clearly not everything. Indeed, Wilkinson, the Supreme Court’s
most recent word on this issue, was a class action. The various plaintiffs
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involved had doubtless spent different—perhaps vastly different—amounts
of time under restrictive conditions.
Simply put, there is no minimum threshold duration requirement.
Following Wilkinson and drawing on the practice of our sister circuits, we
articulated a holistic approach in Wilkerson, 774 F.3d 845. We instructed that
courts should consider the combination of the “duration of the solitary
confinement, the severity of the restrictions, and their effectively indefinite
nature.” 774 F.3d at 855. The majority opinion misreads Wilkerson,
therefore, when it takes it to use duration of confinement alone to determine
whether constitutional due process protections must be afforded. In the
majority opinion’s view, Wilkerson held that two and a half years is simply
not enough to give rise to a liberty interest, but eight years is sufficient. It
apparently relies on Wilkerson’s overview of sister-circuit decisions and
Wilkerson’s observation that the “duration in segregated confinement that
courts have found does not give rise to a liberty interest range up to two and
one-half years.” Id. at 855. But this overview was used only to stress the
“extraordinary” nature of the thirty-nine years of confinement at issue in
that case. Id. (“We need not dwell on duration.” Id.). It does nothing to
disavow or amend the holistic approach that had just been put forward. 2 And
2
The opinions cited by Wilkerson do not treat duration as dispositive either. See
Hernandez v. Velasquez, 522 F.3d 556, 563 (5th Cir. 2008) (reviewing plaintiff’s conditions
and concluding that “[c]ases where segregated confinement is sufficiently ‘atypical’ to
implicate a due process liberty interest involve circumstances much harsher than those
presented here”); Jones v. Baker, 155 F.3d 810, 813 (6th Cir. 1998) (describing two and a
half years as atypical but nevertheless holding that the particular “conditions of plaintiff’s
confinement” were justified and did “not rise to an ‘atypical and significant’ hardship”);
Griffin v. Vaughn, 112 F.3d 703, 708 (3rd Cir. 1997) (reviewing plaintiff’s conditions and
concluding that “it is not extraordinary for inmates in a myriad of circumstances to find
themselves exposed to the conditions to which [plaintiff] was subjected”).
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it certainly does not categorically deem insufficient any claim to a liberty
interest that does not meet a minimum threshold period of confinement.
Our sister circuits continue to treat duration as simply one factor
among others. The Seventh Circuit, in fact, recently rejected a
“presumptive minimum” of six months as inconsistent with case law across
the federal courts, noting that “[a] considerably shorter period of segregation
may, depending on the conditions of confinement and on any additional
punishments, establish a violation.” Kervin v. Barnes, 787 F.3d 833, 836–37
(7th Cir. 2015) (citing examples from the Second Circuit (77 days), Third
Circuit (90 days), and Tenth Circuit (75 days)).
Analyzed under the proper test articulated in Wilkinson and
Wilkerson, and employed by our sister circuits, Mr. Escobarrivera’s
conditions plainly implicate a clearly established liberty interest. In Wilkerson
we zeroed-in on the combination of the plaintiff’s “23-hour-a-day in-cell
confinement, limited physical exercise, limited human contact, and
effectively indefinite placement” to determine that a clearly established
liberty interest was implicated. 774 F.3d at 858. It is undisputed that all of
these factors are present here.
The district court’s contrary conclusion follows from its error in
treating the “lack of clear guidance regarding terms equivalent to Plaintiff’s
term” as the beginning and the end of the qualified immunity analysis.
Escobarrivera, 2021 WL 843106, at *1. As we held in Wilkerson, a liberty
interest can be clearly established despite “some distinctions between the
conditions” that have been held to implicate a liberty interest in previous
cases. 774 F.3d at 855. Thus, the district court was obliged to fully consider
all of Mr. Escobarrivera’s conditions of confinement to determine whether
there were “material and substantial similarities” with conditions that have
previously been found to implicate a liberty interest. Id. A difference in
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duration alone does not preclude a finding of clearly established law. See id.
at 858 (concluding that plaintiff’s conditions of confinement implicate a
clearly established liberty interest and then noting that this conclusion is
“cemented by the unprecedented duration of [the prisoner’s] incarceration”
(emphasis added)).
Moreover, even assuming arguendo that claims like Mr.
Escobarrivera’s cannot be brought until a prisoner has spent a minimum
period in solitary confinement, Mr. Escobarrivera has satisfied that
prerequisite. As noted, the majority opinion identifies eight years with no
prospect of immediate release as “sufficient,” but two and a half years as
“not.” Supra p. 9. Mr. Escobarrivera is now approaching five years in
solitary confinement with no indication of when or how he may ever be
released. I would hold that five years is enough, as foreshadowed by our
decision in Bailey v. Fisher, 647 F. App’x 472 (5th Cir. 2016). The plaintiff in
Bailey likewise sought judicial review of his placement in solitary
confinement. Id. at 473. But it was not clear from the record how long he
had been in isolation, prompting the panel to remand to the district court to
determine whether the plaintiff was still being held in solitary confinement.
Id. at 477. In doing so, the panel noted that if the plaintiff was still in solitary
confinement, “he has been isolated for over five years.” Id. If five years of
confinement were insufficient to trigger constitutional due process
protections, there would be no need for a remand.
Simply put, five years in solitary confinement with no path forward to
release is sufficient to trigger constitutional due process protections.
I respectfully dissent in part and would remand this claim for further
consideration in the district court.
18