First Circuit Affirms Qualified Immunity for Massachusetts Officials Who Held Prisoner in Solitary for Two Years Without Hearing
by Douglas Ankney
In a maddeningly byzantine decision on February 21, 2024, the U.S. Court of Appeals for the First Circuit dismissed a claim by Massachusetts prisoner Jwainus Perry that his due process rights were violated by state Department of Correction (DOC) officials, who held him in solitary confinement for almost two years in a Special Management Unit (SMU) at the notorious Souza-Baronowski Correctional Center between 2010 and 2012 “without affording him either notice of the factual basis for that confinement or an opportunity for rebuttal.”
Perry filed his claim in April 2014, after which the federal court for the District of Massachusetts granted Defendants summary judgment. A panel of the First Circuit affirmed that decision in 2018, agreeing that they were entitled to qualified immunity (QI) because the law was not clearly established, at the time of the alleged violation, that prolonged SMU confinement was a deprivation of a liberty interest protected by the Due Process Clause. Four years later, the full Court sitting en banc vacated that decision and granted Perry’s motion for rehearing—only to reach the same conclusion again another two years after that.
Attempting this time to provide a framework for determining when confinement in segregation triggers due process protections, the Court began with a “two-step approach” to analyze the QI claim, as laid out in Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir. 2016). The first step: Look for “a genuine issue of disputed fact” which might support Plaintiff’s claimed violation of his constitutional rights; and, if one is found, take a second step to determine whether the right “was clearly established at the time of the defendant’s alleged violation.”
But the Court said that the first step could not be completed without taking a detour to determine whether a liberty interest protected by the Due Process Clause was possibly violated by Defendants. Since Perry’s was a conditions-of-confinement claim, no liberty interest was threatened unless an “atypical and significant hardship” was imposed on him “in relation to the ordinary incidents of prison life,” the Court said, quoting Sandin v. Conner, 515 U.S. 472 (1995).
Having determined that, the Court said it was obliged to continue its detour to examine those “ordinary incidents of prison life,” in order to establish a baseline beyond which SMU confinement constitutes a ‘significant and atypical hardship.’ Citing Skinner v. Cunningham, 430 F.3d 483 (1st Cir. 2005), the Court said that solitary confinement exceeding 30 days may cross this threshold if it is “irrational,” “inessential” or “excessive” in length. “This is not to say,” the Court allowed, “that confinement beyond thirty days creates a per se due process violation.”
So it took a another step to ask whether “‘few’ members of the general prison population have experienced similar durations of such confinement,” quoting Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000). Even if that’s so, however, it only “secure[s] a procedural opportunity to challenge” the confinement, “not to bar the confinement’s use for any length of time or purpose.”
Which still doesn’t mean the challenge to the confinement is dead, the Court continued; as a third-step “matter of procedure and burden allocation,” the prisoner may show his confinement’s duration was an “atypical and significant hardship” even without “[an] empirical showing as to the frequency with which the prison system at issue imposes solitary confinement of comparable length,” per Colon v. Howard, 215 F.3d 227 (2d Cir. 2000).
So the Court took a fourth-step look at “the state’s own regulations,” which are “not the source of any liberty interest themselves” but “can inform the inquiry into whether the solitary confinement at issue persisted long enough” to exceed the “reasonable ‘expectations’ that the state’s own laws and policies have generated about what an inmate reasonably should understand to constitute the basic experience of prison life,” quoting LeChance v. Commissioner of Correction, 978 N.E.2d 1199 (Mass. 2012).
Applying this to Perry’s case, the Court concluded that the length of his SMU confinement subjected him to an ‘atypical and significant hardship.’ Moreover, Defendants deprived Perry of his due-process rights—in the language of Hewitt, they gave him no “notice of the factual basis” for the confinement nor “an opportunity to present [his] views” to the official charged with the decision to put him there.
But after all that, the Court also concluded that it wasn’t clearly established at the time of Perry’s solitary confinement that prolonging it would constitute an ‘atypical and significant hardship’; therefore, Defendants were entitled to QI. Accordingly, the district court’s dismissal of his complaint was affirmed. Before the Court, Perry was represented by attorneys with Garmey Law in Portland, Maine, and the Roderick and Solange MacArthur Justice Center in Chicago. See: Perry v. Spencer, 94 F.4th 136 (1st Cir. 2024).