Roy Lee Williams v. Secretary Pennsylvania Department of Corrections

                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No. 22-2399
                        _____

                ROY L. WILLIAMS,
                            Appellant

                          v.

  SECRETARY PENNSYLVANIA DEPARTMENT OF
               CORRECTIONS
              _______________

    On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                (D.C. No. 2:21-cv-01248)
    District Judge: Honorable Eduardo C. Robreno
                   _______________

               Argued on July 14, 2023

Before: PHIPPS, MONTGOMERY-REEVES and McKEE,
Circuit Judges.

         (Opinion filed: September 20, 2024)
                               _______________
Matthew A. Feldman [Argued]
Pennsylvania Institutional Law Project
718 Arch Street, Suite 304 South
Philadelphia, PA 19106
      Counsel for Appellant

Michelle A. Henry
Anthony T. Kovalchick [Argued]
J. Bart DeLone
Office of Attorney General of Pennsylvania
Appellate Litigation Section
1251 Waterfront Place
Mezzanine Level
Pittsburgh, PA 15222
        Counsel for Appellee


                      _______________

              OPINION OF THE COURT
                   _______________
McKEE, Circuit Judge.

        Roy Lee Williams, a death-row prisoner with a history
of mental illness, was held in solitary confinement on the
Capital Case Unit (CCU) of a Pennsylvania state correctional
institution for twenty-six years. Williams filed this action
alleging that, given his known history of serious mental illness,
being continuously held in solitary confinement for twenty-six
years without penological justification violated the Eighth
Amendment’s cruel and unusual punishment clause and the
Americans with Disabilities Act (ADA). The District Court
granted summary judgment for Defendants. It held that




                               2
Secretary John E. Wetzel, the former Secretary of the
Pennsylvania Department of Corrections (DOC), was entitled
to qualified immunity on the Eighth Amendment claim and that
Williams could not show that the DOC was deliberately
indifferent under the ADA.1 Williams now appeals the District
Court’s grant of Defendants’ motion for summary judgment on
both claims.

       Prior to the District Court’s summary judgment
decision, on April 1, 2021, the District Court sua sponte
dismissed Williams’ Fourteenth Amendment claim, pursuant
to 

(e)(2)(b)(ii), for failure to state a claim.
Williams also appeals that decision.

       Our review of the District Court’s decision requires us
to draw all reasonable inferences in Williams’ favor, including
that the Secretary had knowledge of Williams’ preexisting
serious mental illness. We must then determine if the Secretary
should have known that holding this death-row prisoner with
preexisting serious mental illness in solitary confinement from
1993 to 2019 without penological justification violated the
Eighth Amendment.

      We conclude that the Secretary had “fair and clear
warning” that his conduct was unconstitutional and should

1
  Since Plaintiff filed suit, George Little has replaced Secretary
Wetzel as the acting Secretary of Corrections. Accordingly,
the Court has deemed Plaintiff’s ADA claim to be against
George Little in his official capacity as the Secretary of
Corrections. For purposes of this opinion, we refer to
Secretary Wetzel and George Little as “the Secretary”
throughout.




                                3
have known that keeping Williams in solitary confinement
would constitute cruel and unusual punishment.2 Therefore,
the doctrine of qualified immunity does not shield the
Secretary from Williams’ Eighth Amendment claim. Our prior
precedents and the record before us leave no room for doubt
that it has long been clearly established that someone with a
known preexisting serious mental illness has a constitutional
right not to be held—without penological justification—in
prolonged solitary confinement.

        As to Williams’ Title II ADA claim, the District Court
correctly determined that there was a material factual dispute
as to whether the DOC knew that Williams had a serious
mental illness.3 However, the court erroneously concluded that
a trier of fact could not find that the DOC was deliberately
indifferent to the risk of harm it caused by placing and keeping
Williams in solitary confinement despite his preexisting
serious mental illness.

      Accordingly, we will vacate the District Court’s grant
of summary judgment on both claims and remand for further
proceedings. We will affirm the District Court’s dismissal of
Williams’ Fourteenth Amendment claim.

           I.   Factual Background

      Roy Lee Williams was held on death row in solitary
confinement in the CCU from 1993 to 2019—twenty-six years.




2
    United States v. Lanier, 

 (1997).
3
    J.A. 012, 035.




                                4
Astonishingly, he was only subject to an active death warrant
for thirty-seven days of those twenty-six years.4

               A. Williams’ Mental Health History

       Williams’ history of serious mental health issues dates
back to childhood. In 1979, when Williams was fourteen, he
was involuntarily committed to the Philadelphia Psychiatric
Center for making suicidal threats and exhibiting violent
behavior.5 There, he was diagnosed with depression and
suicidal ideation.6

      In 1994, while in custody at SCI-Graterford, Williams
sought help from the Psychological Services Department
because he was deteriorating emotionally.7 A psychiatrist

4
  Williams’ death warrant is no longer active. His first death
warrant was signed on October 11, 1995. His execution was
scheduled for October 26, 1995, and stayed on October 20,
1995. His second death warrant was signed on February 2,
1996. His execution was scheduled for February 20, 1996, and
stayed on February 12, 1996. His third death warrant was
signed on December 20, 2004. His execution was scheduled
for February 17, 2005, and stayed on January 7, 2005.
5
  J.A. 108; 110–11.
6
  Three to six months after his discharge, Williams voluntarily
returned to the Philadelphia Psychiatric Center for ninety
additional days of inpatient treatment. He participated in
family therapy sessions for roughly one year after his second
hospitalization.
7
  He informed a psychologist that he had a history of suicidal
ideation and that he had been involuntarily committed to the
Philadelphia Psychiatric Center as a teenager.




                              5
diagnosed him with a psychiatric disability and placed him on
the DOC’s Mental Health Roster, with a “C” designation.8 At
some point during his incarceration, he was downgraded to the
“B” Roster.9

       On December 30, 1995, Williams was referred to a
psychiatrist at SCI-Graterford due to manifestations of
“depression and anxiety.”10 During an evaluation performed
on January 29, 1996, Williams described his psychiatric
history of visits to the Philadelphia Psychiatric Center as a
young teenager.11      Mental health staff found that he
“[p]resented no mental decompensation or emotional
problems.”12

8
  The DOC scores the mental health of incarcerated people “on
a four-point nominal scale system.” J.A. 205. People on the
“A” Roster have “no identified psychiatric/[intellectual
disability] needs or history of psychiatric treatment.” 

People on the “B” Roster have an “identified history of
psychiatric treatment, but no current need for psychiatric
treatment; [these individuals are] placed on inactive [mental
health]/[intellectual disability] roster.” 

 People on the “C”
Roster are “currently receiving psychiatric treatment, but [are]
not currently diagnosed with a [serious mental illness] or
functional impairment and do[] not have an [intellectual
disability] or [are] not [guilty but mentally ill]. 

 Finally, the
“D” Roster is for people who are “currently diagnosed with a
[serious mental illness], [intellectual disability], credible
functional impairment, or [are] [guilty but mentally ill].” 

9
  J.A. 121.
10
   J.A. 294.
11
   

12
   

                                 6
        However, in 1996, in support of Williams’ Post
Conviction Relief Act (PCRA) petition, Dr. Barry Crown, a
psychologist and neuropsychologist, and Dr. Robert Fox, a
psychiatrist, evaluated Williams and shared their conclusions
with his criminal defense attorneys who, in turn, shared them
with the DOC.13 Both doctors provided information about
Williams’ traumatic childhood and his struggles with mental
illness, including his psychiatric hospitalization. Dr. Crown
documented Williams’ brain damage and the resulting
“impairments and deficiencies” that neuropsychological
testing had revealed.14 These included “impaired cognition,”
“emotional lability,” and deficiencies in “reasoning
capacity.”15 The evaluation confirmed, in his opinion, that
Williams was “severely psychologically, cognitively and
emotionally impaired.”16      Similarly, Dr. Fox described
Williams as having “ingrained psychological and emotional
impairments,” including symptoms of Post-Traumatic Stress
Disorder and “depression.”17 Williams asserts that copies of

13
   The DOC notes that “those declarations were not mentioned
in the summary of Williams’ medical records that had been
drafted during a review completed by attorneys working for the
Capital Habeas Unit of the Federal Community Defender
Office for the Eastern District of Pennsylvania.” Appellee Br.
25 n.5. The District Court determined, however, that there was
an issue of fact as to whether these declarations were provided
to the prison’s mental health staff. Williams v. Wetzel, No. 21-
1248, 

, at *9 (E.D. Pa. July 21, 2022).
14
   J.A. 51–52.
15
   J.A. 52–53.
16
   J.A. 55.
17
   J.A. 56.




                               7
the doctors’ declarations were provided to the DOC mental
health staff.18

        On July 3, 1996, during his period of incarceration at
SCI-Graterford, Williams attempted to commit suicide by
“ma[king] a noose out of a sheet.”19 In the period leading up
to this suicide attempt, Williams told correctional officers that
he heard “voices telling him to kill himself.”20 Because of the
suicide attempt, Williams was placed in a psychiatric
observation cell for two or three days. The cell is “like an
isolation cell where they take all your clothes.”21 While
confined there, Williams was offered Prozac, which he
declined. Williams later told his attending physician and the
other mental health professionals that he was “faking” the
suicide attempt and had attempted suicide “to get to another
[housing] unit[,] to make a phone call[,] just to get out [of] the
cell.”22 When subsequently deposed, however, Williams

18
   The Secretary argues that even if it had been provided with
the doctors’ declarations, these declarations “could not have
placed Secretary Wetzel . . . on notice that Williams was
mentally ill” because the experts’ opinions were rejected
during subsequent PCRA proceedings. Appellee Br. 25–26
(citing Commonwealth v. Williams, 

, 110–11, 113
(Pa. 2004)). However, there is no evidence in the record that
the DOC was aware of the subsequent PCRA proceedings, and
thus nothing to suggest that the determinations in the PCRA
proceedings would have altered the DOC’s assessment of
whether Williams had a preexisting mental illness.
19
   J.A. 114.
20
   J.A. 294.
21
   J.A. 113–14.
22
   J.A. 114.




                                8
swore that he had in fact attempted suicide, and only told
mental health staff that he had been “faking” the attempt in
order to get out of the psychiatric observation cell.23

       Following this incident, DOC officials removed
Williams from the psychiatric observation cell and placed him
in disciplinary custody for roughly six months. As a result of
his custody status, his property—including his tv and radio—
were removed from his cell, and he visited the yard alone.
Williams describes disciplinary status as being “isolated on top
of being isolated.”24 After being placed in disciplinary
custody, Williams did not have further contact with the Mental
Health Department.25

               B.    Confinement on Death Row

        Although the Secretary argues that Williams’ placement
in solitary confinement was required under Section 4303 of
Pennsylvania’s Prison and Parole Code,26 that statute was not
enacted until five years after Williams was placed in solitary
confinement.27 Williams was placed in solitary initially

23
   J.A. 114.
24
   J.A. 115–16.
25
    This is with the exception that on August 8, 2002, his
psychiatric records indicate that he “seem[ed] worried and
anxious.” J.A. 294.
26
   See 

 (setting “Prisons and Parole
Code” as the reference title for Title 61).
27
   In 1998, the Pennsylvania legislature passed Senate Bill 252
(Pr. No. 253), now known as Section 4303. Section 3 of the
Act of June 18, 1998, Providing for a Procedure and Method




                               9
pursuant to the DOC’s internal policy.28 Section 4303
thereafter mandated that upon receipt of a death warrant, “the
secretary [of corrections] shall, until infliction of the death
penalty . . . keep the [incarcerated person] in solitary
confinement.”29 However, where, as here, an inmate’s death
warrant expired, it was “entirely a matter of the Department’s
discretion where to house an inmate.”30 Until November 2019,
the DOC held individuals with expired death warrants in
solitary confinement indefinitely. The DOC only abandoned
that policy when it settled a class-action brought on behalf of
CCU inmates alleging that their CCU conditions violated their
Eighth and Fourteenth Amendment rights. The DOC began
implementing changes pursuant to the settlement agreement in
December 2019.

       The conditions of death row solitary confinement have
been well-documented by this Court. Before the 2019
settlement agreement, prisoners in the CCU lived in cells no
larger than seven feet by twelve feet.31 They were forced to
“spend[] the overwhelming majority of [their] time in [their]


of Execution; and Making Repeals, P.L. 80. Williams was
placed in solitary confinement in 1993.
28
   In November 1982, the DOC began segregating individuals
sentenced to death from the general population on its own
accord—not pursuant to state statute. See Peterkin v. Jeffes,

 (E.D. Pa. 1987), aff’d in part and
vacated in part, 

 (3d Cir. 1988).
29
   61 Pa.C.S. § 4303 (2009).
30
   Porter v. Pa. Dep’t of Corrs., 

, 445 n.9 (3d Cir.
2020) (quoting Clark v. Beard, 

 (Pa.
Commw. Ct. 2007)).

 F.3d at 436.




                              10
cell[s], including eating [their] meals alone.”32 They were not
allowed to leave their cells for more than ten hours per week,
including for basic hygiene and work duty and were only
permitted to exercise in “cages . . . no more than twice the size
of a typical CCU cell.”33 When permitted to leave their cells,
CCU prisoners were “handcuffed from behind, or handcuffed
in front using a belt and tether” and they were forced to
“undergo a visual strip search.”34 Their “[j]ob assignments
[we]re limited to janitorial duties on the CCU block, and
performed in confined small spaces under close observation
and monitoring.”35 Prisoners in the CCU were “precluded
from participation in adult basic education courses, vocational
learning opportunities or the chance to work towards a high
school diploma” and were not permitted to attend group
religious services.36

        In 2014, the United States Department of Justice (DOJ)
published a comprehensive report, in the form of a letter,
following its investigation of the Pennsylvania DOC’s use of
solitary confinement on individuals with serious mental
illnesses, including individuals placed in the CCU.37 In
addition to facts we set forth in Porter,38 the DOJ investigation
found that all individuals in solitary confinement had to spend
almost their entire day confined to cells that are less than 100

32
   

33
   

34
   

35
   

36
   

37
    We attach the 2014 DOJ report as an Appendix to this
opinion.
38
   974 F.3d at 436–37.




                               11
square feet. Most cells lacked exterior windows, and therefore
any natural light. Although the lighting inside the cell could
be dimmed, it could “never be turned off, even at night,” and
“the noise level c[ould] be high . . . because of yelling and
banging of neighboring prisoners.”39 The DOJ also found that
“the air quality [wa]s often poor because of inadequate
sanitation and ventilation[,]” which was of particular concern
when individuals smeared feces on the wall; “it[] [was] often
left like that for days and the entire pod [would] reek[] of shit
and make[] you want to vomit.”40

        In addition to physical conditions, the DOJ reported on
the DOC’s practices with respect to individuals with serious
mental illness held in solitary confinement. The DOJ
condemned the DOC’s punitive responses to prisoners
exhibiting symptoms of mental illness, noting that the DOC
“respond[s] to behaviors that signal mental illness not by
seeking to ensure that the inmate received adequate mental
health treatment, but instead by imposing additional
restrictions on the conditions of the prisoners’ confinement.”41
This included “us[ing] housing assignments within the solitary
confinement units as a way to punish prisoners for conduct
related to their mental illness,” confining prisoners to their
cells 24/7, denying them bedding material and/or running
water, and taking away their clothes.42 The DOC also resorted

39
   J.A. 070.
40
   

41
   J.A. 071.
42
    J.A. 071–72. Perhaps the most repugnant response to
manifestations of individuals’ mental illness detailed in the
report was one individual’s allegation that when he created a




                               12
to the unnecessary use of full-body restraints—often for more
than seven hours at a time.

       The DOJ found that the DOC’s subjection of prisoners
with serious mental illness to prolonged periods of solitary
confinement was often unjustifiably harsh and resulted in
serious harm. The DOJ warned the Secretary that pursuant to
Supreme Court precedent set forth in Estelle v. Gamble43 and
Farmer v. Brennan,44 the DOC’s use of solitary confinement
violated the Eighth Amendment.45 Specifically, it informed
the Secretary that the DOC’s use of solitary confinement for
extended periods of time on individuals with serious mental
illness “constitutes precisely the type of indifference to
excessive risk of harm the Eighth Amendment prohibits.”46
The DOJ’s analysis emphasized that individuals with serious
mental illness suffer more during prolonged periods of solitary
confinement than individuals who do not have this preexisting
condition.47 After referencing this Court’s pronouncement that


makeshift noose and “stood on his toilet preparing to kill
himself, a group of officers encouraged him . . . . According
to the prisoner, the officers told him that they ‘wanted to see
his feet dangling,’ and chanted, ‘1. . . 2 . . . 3 . . . kill yourself,’
repeatedly.” J.A. 072.
43
   

 (1976).
44
   

 (1994).
45
   J.A. 064–65 (first citing Estelle, 

; and then
citing Farmer, 511 at 843).
46
   J.A. 065.
47
   J.A. 070 (“[T]he particular use of solitary confinement on
inmates with SMI in the PDOC system, when examined under
the totality of the circumstances, includes unjustifiably harsh




                                  13
“[t]he touchstone [of an Eighth Amendment violation] is the
health of the inmate,”48 the DOJ found the manner in which the
DOC used solitary confinement on prisoners with serious
mental illness violated the Eighth Amendment because it: (1)
resulted in serious “harm or an unreasonable risk of harm,” (2)
interfered with the DOC’s “ability to provide adequate mental
health treatment,” and (3) constituted “unjustifiably harsh” and
“dehumanizing” conditions.49

        The DOJ reached a similar conclusion when
considering the DOC’s use of solitary confinement under Title
II of the ADA. Specifically, the DOJ found that the DOC’s
practices violated Title II because the DOC: (1) unnecessarily
segregated individuals with disabilities and failed to modify its
policies and practices; (2) failed to individually assess
individuals to determine whether placement in segregation was
appropriate or justified; and (3) unnecessarily denied
opportunities for individuals to engage in and benefit from
programming.




conditions, even though some of these conditions, standing
alone, might not be inappropriate in other circumstances.”).
48
   J.A. 068 (quoting Young v. Quinlan, 

 (3d
Cir. 1992)).
49
   J.A. 068–70 (emphasis omitted). At the outset of the report,
the DOJ recognized that the DOC had begun reforming the way
in which it uses solitary confinement on prisoners with serious
mental illness but noted that despite “important improvements,
much more work needs to be done to ensure sustained
compliance with the mandates of the Constitution and the
ADA.” J.A. 063.




                               14
       II.   Procedural Background

       Williams filed a pro se complaint against the Secretary,
asserting Eighth and Fourteenth Amendment claims under 

, and a claim under Title II of the ADA. He
requested nominal, compensatory, and punitive damages under
the Eighth Amendment and the ADA based upon his continued
placement in solitary confinement “in light of his history of
depression and suicidal ideation.”50

      The District Court sua sponte dismissed Williams’
Fourteenth Amendment claim pursuant to 

(e)(2)(B)(ii).51

      Thereafter, Defendants filed a motion for summary
judgment, which the District Court granted.52 The District
Court determined that, pursuant to Porter v. Pennsylvania


50
   J.A. 009–10.
51
    The District Court also sua sponte dismissed Williams’
official capacity claim under §1983 and his individual capacity
claim under Title II of the ADA. It determined that Williams’
official capacity claim under § 1983 was barred by the
Eleventh Amendment but allowed Williams’ claim against
Secretary Wetzel in his individual capacity to proceed. The
District Court also held that because Title II of the ADA
prohibits only a “public entity” from discriminating against
people with disabilities, Williams’ official-capacity ADA
claim was tantamount to a claim against the DOC.
52
    Prior to this motion, the District Court permitted the
defendants to depose Williams, but did not allow for other
discovery.




                              15
Department of Corrections,53 the Secretary was entitled to
qualified immunity on Williams’ Eighth Amendment claim.
The District Court also granted summary judgment on
Williams’ ADA claim. It determined that, although there was
a factual dispute as to whether Williams had a disability under
the ADA, he could not establish the intentional discrimination
necessary to obtain compensatory damages.

      III.   Jurisdiction and Standard of Review

       We have jurisdiction over Williams’ appeal under 

, and we conduct plenary review of the grant of
summary judgment.54 Summary judgment should be granted
only where the record shows that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.”55 We draw all reasonable inferences in the
nonmovant’s favor.56

       IV.   Discussion

       Williams argues that the Secretary was not entitled to
qualified immunity from Williams’ Eighth Amendment
allegations. He contends that the Secretary should have known
that continuing to hold someone with his mental and medical
history in solitary confinement violated a clearly established
right. Defendants, on the other hand, dispute whether the
Secretary had adequate notice to defeat the shield of qualified

53
   

.
54
   See Williams v. Sec. Pa. Dep’t of Corrs. (“Williams I”), 

 (3d Cir. 2017).
55
   Fed. R. Civ. P. 56(a).
56
   Williams I, 

.




                              16
immunity, as well as whether the Secretary knew of Williams’
mental problems.57

       Williams further argues that the District Court erred in
granting summary judgment on his ADA claim. Finally,
Williams argues that the District Court erred when, pursuant to
§ 1915(e)(2)(b)(ii), it sua sponte dismissed with prejudice his
Fourteenth Amendment claim for failure to state a claim. We
will address these arguments in turn.

                A. Eighth Amendment Claim

        Williams claims that the Secretary forced him to
languish in solitary confinement, despite knowledge of his
preexisting serious mental frailty, in deliberate indifference to
his health and safety, in violation of his Eighth Amendment
rights.58 In response, the Secretary only argues that he is

57
   At summary judgment, we view the facts in the light most
favorable to Williams. Brooks v. Kyler, 

, 105 n.5
(3d Cir. 2000). Accordingly, on this record, we must assume
that Williams had a preexisting serious mental illness when
placed in solitary confinement and notified the DOC of his
preexisting serious mental illness.
58
    To prove deliberate indifference under the Eighth
Amendment, a plaintiff must establish that “(1) he had a
serious medical need, (2) the defendants were deliberately
indifferent to that need; and (3) the deliberate indifference
caused harm to the plaintiff.” See Durham v. Kelley, 

 (3d Cir. 2023) (describing what a litigant must plead
at the motion to dismiss phase). A prison official is
deliberately indifferent pursuant to the Eighth Amendment if




                               17
entitled to qualified immunity because Williams’ right was not
clearly established. The Secretary does not dispute that
Williams’ Eighth Amendment right to be free from cruel and
unusual punishment was violated.59         Accordingly, that
argument is forfeited.60

           1. Qualified Immunity

        “Under the doctrine of qualified immunity, ‘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.’”61
To determine whether a government official is entitled to
qualified immunity, we must ask whether (1) the facts put
forward by the plaintiff show a violation of a constitutional
right and whether (2) the right was clearly established at the



the official knows an incarcerated person faces “a substantial
risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer, 

.
59
   He would have been hard-pressed to make such an argument,
given that Porter recognized that “prolonged solitary
confinement . . . poses a substantial risk of serious
psychological and physical harm.” 974 F.3d at 441–43.
60
   See Barna v. Board of School Directors of Panther Valley
School District, 

 (3d Cir. 2017)
(‘“[F]orfeiture is the failure to make the timely assertion of a
right,’ an example of which is an inadvertent failure to raise an
argument.”) (quoting United States v. Olano, 

 (1993)).
61
   Williams I, 

 (quoting Harlow v. Fitzgerald,

 (1982)).




                                18
time of the alleged misconduct.62 We need not “tackle these
steps in sequential order.”63 Because the Secretary does not
dispute that Williams’ Eighth Amendment right was violated,
we need only consider whether the right was clearly
established at the relevant time.

        To determine whether the right was clearly established,
we examine the state of the relevant law when the violation
allegedly occurred.64 A right is clearly established where
existing precedent has “placed the statutory or constitutional
question beyond debate.”65 “[G]eneral statements of the law
are not inherently incapable of giving fair and clear warning . .
. .”66 Moreover, the facts in existing precedent “need not
perfectly match” the circumstances of the case at hand.67 The
“ultimate question” in the qualified immunity analysis “is
whether the defendant had fair warning that his conduct
deprived his victim of a constitutional right.”68 “[O]fficials can
still be on notice that their conduct violates established law


62
   Peroza-Benitez v. Smith, 

 (3d Cir. 2021).
63
    Williams I, 848 F.3d at 557–58 (first citing Pearson v.
Callahan, 

, 234–36 (2009); and then citing
Werkheiser v. Pocono Twp., 

 (3d Cir. 2015)).
64
   Williams I, 

.
65
   Ashcroft v. al–Kidd, 

, 741 (2011) (first citing
Anderson v. Creighton, 

 (1987); and then
citing Malley v. Briggs, 

 (1986)).
66
   Lanier, 

.
67
   Williams I, 

.
68
   Schneder v. Smith, 

 (3d Cir. 2011) (quoting
Hope v. Pelzer, 

 (2002) (internal quotation
marks omitted)).




                               19
even in novel factual circumstances”69 because “a general
constitutional rule already identified in the decisional law may
apply with obvious clarity to the specific conduct in question,
even though ‘the very action in question has [not] previously
been held unlawful.’”70 Therefore, common sense may dictate
that a constitutional violation has occurred where a
constitutional violation is “so obvious” that a government
official has “fair warning” that the conduct is
unconstitutional.71

       Given the nearly infinite combination of factors that can
underlie a given claim, requiring an exact factual match with
prior decisions would be tantamount to morphing qualified
immunity into absolute immunity because no plaintiff could
ever identify a sufficiently identical precedent.72 We do not,
therefore, limit our focus to whether we have previously
decided cases with identical facts and circumstances.

      However, before we can turn to relevant caselaw, we
must appropriately “frame the right”73 that Williams alleges
was violated, “with all reasonable inferences drawn in” his


69
   Hope, 

.
70
    

 (quoting Lanier, 520 U.S. at 270–71) (alteration in
original).
71
   

72
   See Williams I, 

 (“Requiring that precedent
and subsequent disputes rest on identical facts would license
state actors to violate constitutional rights with impunity
simply by varying some irrelevant aspect of constitutional
violations.”).
73
   Peroza-Benitez, 

.




                              20
favor, as the nonmovant.74 The Supreme Court has cautioned
against framing the right at “a high level of generality.”75
Instead, we must “define the right allegedly violated at the
appropriate level of specificity”76 to determine “whether the
violative nature of particular conduct is clearly established.”77
This inquiry should consider the specific context of the case,
not simply a broad proposition.78

       The District Court appears to have defined the right at
issue here as a death row prisoner’s Eighth Amendment right
not to be held in solitary confinement. It then determined that
pursuant to our prior decision in Porter, Williams’ alleged
right had not been clearly established. However, in its analysis,
the District Court failed to frame the right with the “appropriate
level of specificity” 79 because it ignored the relevance of
Williams’ preexisting serious mental illness and the
Secretary’s knowledge of it, along with the lack of a
penological justification for placing and continuing to hold
Williams in solitary confinement.




74
    Mack v. Yost, 

 (3d Cir. 2023) (first
citing Peroza-Benitez, 994 F.3d at 165–66; and then citing
Tolan v. Cotton, 

 (2014)).
75
   Ashcroft, 563 U.S. at 742.
76
   Sharp v. Johnson, 

 (3d Cir. 2012) (citing
Williams v. Bitner, 

 (3d Cir. 2006)).
77
    Mullenix v. Luna, 

 (2015) (per curiam)
(quoting Ashcroft, 563 U.S. at 742).
78
   See Peroza-Benitez, 

.
79
   Peroza-Benitez 

 (quoting Sharp, 

).




                               21
        There is evidence in the record that Williams was
diagnosed with depression and suicidal ideation before he
began his twenty-six years in solitary confinement. There is
also evidence that he told a DOC psychologist that he “had a
history of suicidal ideation and [had been] involuntarily
committed to [the] Philadelphia Psychiatric Center when [he]
was 13 years old.”80 It is undisputed that, at some point during
his incarceration, he was placed on the DOC’s Mental Health
Roster with a “C” designation, which is reserved for
individuals requiring psychiatric treatment.81 Viewing the
facts in the light most favorable to Williams, we also consider
that declarations from Williams’ doctors, documenting his
childhood psychiatric hospitalization, “impaired cognition,”
“emotional lability,” and deficiencies in “reasoning capacity,”
were provided to the DOC.82

       Although the Secretary argues that the record does not
support Williams’ assertion that the Secretary knew or should
have known about his preexisting serious mental illness, the
record does raise a genuine dispute of fact as to the DOC’s
knowledge that Williams was seriously mentally ill. Where
“issues of fact may preclude a definitive finding on the
question of whether the plaintiff’s rights have been violated,
the court must nonetheless decide whether the right at issue

80
   J.A. 252.
81
   The DOC’s classification of Williams’s mental illness is a
relevant—but not dispositive—factor when analyzing whether
his mental illness was serious. And the record raises a genuine
dispute of material fact about whether Williams had a known
preexisting serious mental illness for the reasons provided
above.
82
   J.A. 52–53.




                              22
was clearly established.”83 Therefore, we must decide whether
the right of a death row prisoner, with a known preexisting
serious mental illness not to be placed and held in prolonged
solitary confinement—without penological justification—was
clearly established at the relevant time. We hold that it was.

          2. Individuals with a Known History of Serious
             Mental Illness Have a Clearly Established Right
             to Not Be Subjected to Prolonged Solitary
             Confinement Without Penological Justification

        It is well established that prison officials may not act
with “deliberate indifference” to a person’s health or safety,84
and that we may infer the existence of this subjective state of
mind from the fact that the risk of harm at issue is obvious,
though ignored.85 Further, this Court has long held that in
assessing the conditions of segregated housing units, the
“touchstone is the health of … inmate[s],” including their
mental health.86 Undoubtedly, holding a prisoner with a
known preexisting serious mental illness in solitary
confinement for a protracted period without penological
justification would result in “unnecessary and wanton
infliction of pain.”87 This violation is so obvious that the
Supreme Court and Third Circuit cases gave respondents fair
notice that this treatment of Williams was unlawful.



83
   Spady v. Bethlehem Area Sch. Dist., 

, 637 n.4
(3d Cir. 2015).
84
   Hudson v. McMillian, 

 (1992).
85
   Farmer, 

.
86
   Young, 

.
87
   Whitley v. Albers, 

 (1986).




                              23
        Our precedents leave no room for doubt that individuals
with a known history of serious mental illness have a clearly
established right not to be subjected to prolonged solitary
confinement without penological justification, regardless of
their sentence. In Young, one of the many cases the DOJ report
relied upon, we held that the district court had erred by granting
summary judgment to the defendants on Young’s Eighth
Amendment claims because Young had raised a material
dispute as to the conditions of his solitary confinement.88 In so
doing, we clarified that when evaluating Eighth Amendment
allegations concerning segregated housing units, “[t]he
touchstone is the health of the inmate.”89 Further, we explained
that “[t]he duration and conditions of segregated confinement
cannot be ignored in deciding whether such confinement meets
constitutional standards.”90 Highly relevant to this analysis is
that prisons may not punish in a way that “threatens the
physical and mental health of prisoners.”91 Indeed, after
recognizing that segregated detention cannot be “foul,
inhuman or totally without penological justification,”92 we

88
   Young, 960 F.2d at 363–64.
89
   

.
90
    

 (first citing Hutto v. Finney, 

, 686–87
(1978); and then citing Smith v. Coughlin, 

(2d Cir. 1984)).
91
    

 at 685–86 (“Courts . . . have universally condemned
conditions of segregation inimicable [sic] to the inmate-
occupants’ physical health, and, in some instances, have also
considered conditions that jeopardize the mental health or
stability of the inmates so confined. . . . While the prison
administration may punish, it may not do so in a manner that
threatens the physical and mental health of prisoners.”).
92
   

                               24
explained that Young’s preexisting physical illness made his
solitary confinement even more inhumane,93 just as Williams’
preexisting mental illness did here.

       We have recently explained that Young “recognized that
determining the constitutionality of prison conditions is a
heavily fact-specific inquiry, where the particular
characteristics of the prisoner raising the challenge are taken
into consideration.”94 Relying on Supreme Court precedent,
we held, in Clark, that someone with a known preexisting
serious mental illness has a clearly established right since at
least 2016 not to be held in prolonged solitary confinement.95
There, the plaintiff’s allegations that “he was kept in conditions
of almost complete isolation for seven months by officials who
knew him to be seriously mentally ill” were sufficient to allege
an Eighth Amendment violation.96 In so holding, we drew
from Palakovic v. Wetzel,97 and a “robust consensus of [district
court] decisions” holding unconstitutional the practice of
“assigning mentally ill prisoners to solitary confinement.”98 In

93
   Id. at 365 (noting the fact that Young’s HIV-positive status
made his unsanitary conditions “all the more revolting”
because he was “more susceptible to infection and disease”).
94
   Clark, 55 F.4th at 179, 181–82, 184–85.
95
   See id.
96
   Id. at 186.
97
   

 (3d Cir. 2017),
98
   Clark, 55 F.4th at 186–87 (citing Ind. Pro. & Advoc. Servs.
Comm’n v. Comm’r, Ind. Dep’t of Corr., No. 1:08-cv-01317-
TWP-MJD, 

, at *23 (S.D. Ind. Dec. 31,
2012) (placing seriously mentally ill inmates in solitary
confinement threatened permanent injury and violated the




                               25
reaching this conclusion, we noted that Clark had adequately
alleged deliberate indifference because he claimed that, like in
Palakovic, the DOC defendants knew he was seriously
mentally ill and knew that placing him in solitary confinement
would cause him severe harm.99 In Palakovic, a plaintiff,
“diagnosed with a number of serious mental disorders,”100
committed suicide after he was repeatedly placed in solitary
confinement for “multiple 30-day stints” during a thirteen-
month period.101 There, we held that allegations that “prison


Eighth Amendment); Jones “El v. Berge, 164 F. Supp. 2d.
1096, 1101–02 (W.D. Wis. 2001) (granting injunctive relief
where conditions of solitary confinement “can be devastating”
to mentally ill individuals housed in supermax prison); Madrid
v. Gomez, 

, 1265–66 (N.D. Cal.
1995) (concluding that mentally ill inmates “in the SHU is the
mental equivalent of putting an asthmatic in a place with little
air to breathe’ and therefore unconstitutional”); Coleman v.
Wilson, 

, 1320–21 (E.D. Cal.
1995) (concluding that segregating inmates with serious
mental disorders violates their Eighth Amendment
rights); Casey v. Lewis, 

, 1549–50 (D. Ariz.
1993) (holding the practice of assigning seriously mentally ill
inmates to segregated housing “despite their knowledge of the
harm” constitutes an “appalling” Eighth Amendment
violation); Langley v. Coughlin, 

(S.D.N.Y. 1989) (holding viable claim that prison officials”
failure to “screen out” those inmates that “by virtue of their
mental condition, are likely to be severely and adversely
affected by placement there”)).
99
   Clark, 55 F.4th at 180–81.
100
    

.
101
    

.




                              26
officials knew the conditions of confinement “were inhumane
for [Palakovic] in light of his mental illness,”102 yet continued
to subject him to severe isolation, were “more than sufficient”
to state an Eighth Amendment claim.103

       We then determined in Clark that qualified immunity
did not apply because “the right of a prisoner known to be
seriously mentally ill to not be placed in solitary confinement
for an extended period of time by prison officials who were
aware of, but disregarded, the risk of lasting harm posed by
such conditions,” was well established at the time of the
violative conduct.104 Even though Clark concerned violations
that began in January 2016, we recognized that the
constitutional right was “long protected by Eighth Amendment
jurisprudence,”105 including Young, Farmer, and Hope.106 We
determined that Third Circuit and Supreme Court precedent
supported our conclusion that Clark’s right was clearly
established, and found that the defendant had fair notice that
he was violating Clark’s right in light of our precedents, prison
policy, state statute, and a federal lawsuit that survived a
motion to dismiss.107 Here, we rely on much of the same law

102
    Clark, 55 F.4th at 179 (quoting Palakovic, 

).
103
     Palakovic, 

. Because Palakovic did not
consider qualified immunity, we had no occasion to determine
whether the Eighth Amendment right was clearly established
at the time of the violative conduct, which began in 2011, 

and do not rely on this case in concluding that Williams’ right
was clearly established as of at least 2014.
104
    Clark, 55 F.4th at 182.
105
    Id. at 181 (emphasis added).
106
    Id. at 183–85.
107
    Id. at 180–88.




                               27
that we did in Clark and determine that the Secretary had fair
notice that Williams’s conditions of confinement violated the
Eighth Amendment because controlling precedent clearly
established the right of a death row prisoner with a known
preexisting serious mental illness not to be held in prolonged
solitary confinement without penological justification.

       This conclusion is easily buttressed by the
comprehensive 2014 DOJ report, which—relying on Farmer,
Hope, Young, and other binding precedent—warned the
Secretary that the DOC’s practices of knowingly holding
seriously mentally ill prisoners in solitary confinement for
extended periods of time was cruel and unusual.108 The DOJ
concluded a months’ long investigation and determined that
the DOC’s “use of a harsh form of solitary confinement for
extended periods of time on hundreds of prisoners with
[serious mental illness]/[intellectual disability] constitutes
precisely the type of indifference to excessive risk of harm the
Eighth Amendment prohibits.”109 The DOJ then advised the
DOC—and Secretary Wetzel specifically—of its findings,
including its detailed analysis of how the DOC’s practices
violated Supreme Court and Third Circuit precedent.

      We have recognized that a variety of sources can be
considered when evaluating whether officials received fair
warning that their conduct was unlawful.110 The Supreme

108
    Id. at 180.
109
    J.A. 065 (emphasis added).
110
    Clark v. Coupe, 

 (3d Cir. 2022) (“Both
Supreme Court and this Court’s precedents consider district
court cases, prison regulations, and state statutes in




                              28
Court recognized in Hope v. Pelzer that DOJ reports like this
one should not be ignored when determining whether officials
had fair notice that they were violating clearly established
law.111 In Hope, the Supreme Court held that the DOJ’s
warning to the Alabama Department of Corrections that its
practice of shackling individuals to a hitching post was
unconstitutional supported the determination that it was clearly
established that such practices violated the law.112 Even
though there was “nothing in the record indicating that the
DOJ’s [report was] communicated to [the individual
defendants],” the Court nonetheless relied on it because other
DOJ communications with the Alabama Department of
Corrections “len[t] support to the view that reasonable officials
in the ADOC should have realized” the alleged treatment
violated the Eighth Amendment.113

       The 1994 DOJ report in Hope was not nearly as
authoritative and informative as the letter that the DOJ sent to
the Secretary here. The 1994 DOJ report stated that “[t]he
hitching pole policy is inappropriate and violates constitutional
standards.”114 In three paragraphs, it explained that the


determining whether officials received fair warning that their
conduct was unreasonable.”).
111
    536 U.S. at 744–46.
112
    Id. at 744.
113
    Id. at 745.
114
    U.S. Dep’t of Justice, Notice of Findings from Investigation
of Easterling Correctional Facility (Alio, Alabama), inc.
Review of Medical Care at Easterling Correctional Center June
1994 (Mar. 27, 1995) at 3, https://clearinghouse.net/case/535/.
The DOJ also noted at the outset of the document that it found




                               29
hitching pole “should never be used as punishment,” that the
staff does not comply with its own policies regarding the
hitching pole, and that the dehumanizing practice is
“potentially dangerous.”115 However, unlike the DOJ report
here, the 1994 report did not rely upon, nor cite to cases or
external sources to support its conclusions.

        In contrast, the 2014 DOJ report, which was twenty-
five-pages long and sent directly to the Secretary, was replete
with citations to Supreme Court and Third Circuit cases, case
studies, and statistics to support its conclusion that the DOC’s
solitary confinement of individuals with serious mental illness
violated the law. More than ten pages of the report analyzed
and explained how the DOC’s specific practices violated the
Eighth Amendment.           In Hope, the DOJ’s conclusory
constitutional determination buttressed the Court’s conclusion
that the law was clearly established. The 2014 DOJ report
serves the same function and provides the same notice as it did
in Hope.116


“significant constitutional violations in two major areas.” Id.
at 1. It explained that “[i]n order to bring Easterling up to
constitutional standards, [it] recommend[ed] implementation
of . . . remedial measures,” including “[c]eas[ing] use of the
‘security bar’ or any other form of corporal punishment or
improper restraint including, but not limited to: shackling
inmates to fences, posts, rails, cell bars, or other stationary
objects.” Id. at 4–5.
115
    Id. at 3.
116
     Id. at 745-46 (“Even if there might once have been a
question regarding the constitutionality of this practice, the
Eleventh Circuit precedent . . . as well as the DOJ report




                              30
       Relying on Hope, the 2014 DOJ report explained
precisely why the DOC’s use of solitary confinement on
prisoners with serious mental illness was unconstitutional
under controlling precedent:

        By subjecting prisoners with [serious mental
        illness (“SMI”)] to prolonged periods of
        solitary confinement under harsh conditions
        that are not necessary for legitimate security-
        related reasons, [the DOC] exposes them to an
        excessive and obvious risk of serious harm.
        See Farmer, 

; Hope v. Pelzer,
        

 (2002) (holding that
        prison officials show deliberate indifference
        where they disregard obvious risks to prisoner
        safety). Moreover, our expert-consultants
        observed that as a direct result of these
        practices, prisoners with SMI have suffered
        serious psychological and physical harms,
        including     psychosis,     trauma,      severe
        depression, serious self injury, and suicide. Cf
        Young v. Quinlan, 

 (3d Cir.
        1992) (“The touchstone is the health of the
        inmate. While the prison administration may
        punish, it must not do so in a manner that
        threatens the physical and mental health of
        prisoners.”).117


condemning the practice, put a reasonable officer on notice that
the use of the hitching post under the circumstances alleged by
Hope was unlawful.”).
117
    J.A. 068.




                              31
        The DOJ went on to explain that the manner in which
the [DOC] used solitary confinement posed an “excessive risk
to the mental health of prisoners” and “violated the Eighth
Amendment.”118 First, it specifically stated that “lengthy
periods of solitary confinement involve[d] conditions that [the
DOJ’s] expert-consultants found subjected prisoners to harm
or an unreasonable risk of harm and contribute[d] to the
Constitutional violation.”119 Undoubtedly, this included
individuals like Williams, who had a history of serious mental
illness and had nevertheless been held in solitary confinement
for over twenty years. Second, the DOJ found that “the manner
in which []DOC use[d] solitary confinement interfere[d] with
its ability to provide adequate mental health treatment to
prisoners with SMI and contribute[d] to the Constitutional
violation.”120 The Pennsylvania DOC’s use of solitary
confinement likely also interfered with Williams’ treatment.
This record supports the conclusion that Williams’ already-
fragile mental health deteriorated to the point that he attempted
suicide while held in solitary confinement. Although the
Secretary notes that Williams was offered Prozac after his
suicide attempt, the 2014 DOJ report makes clear that
“[a]ppropriate mental health treatment for prisoners with SMI
should involve much more than medication.”121 And third,




118
    

 (citing Peterkin v. Jeffes, 

 (3d
Cir, 1988)).
119
    

 (emphasis omitted).
120
    J.A. 069 (emphasis omitted).
121
    J.A. 069.




                               32
citing the Supreme Court’s decision in Wilson v. Seiter,122 the
2014 DOJ report recognized that “unjustifiably harsh
conditions often attend[ed] [DOC]’s use of prolonged solitary
confinement on prisoners with SMI. In combination, these
conditions [we]re dehumanizing and cruel and contribute[d] to
the Constitutional violation.”123 It further explained how the
DOC’s use of solitary confinement on prisoners with serious
mental illness resulted in harm, noting, for example, that “more
than 70 percent of documented suicide attempts between
January 1, 2012 and May 31, 2013 occurred in solitary
confinement units.”124

       The significance of the 2014 DOJ report simply cannot
be ignored. The Secretary was directly informed that under
binding precedent, placing someone with a known history of
serious mental illness in solitary confinement for a prolonged
period of time without penological justification clearly was
unlawful.125 We therefore conclude that the Secretary
personally had fair warning by 2014—at the very latest—that

122
     

 (1991) (holding that conditions of
confinement violate the Eighth Amendment when they
combine to “have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need”).
123
    J.A. 070 (emphasis omitted).
124
    J.A. 064 (emphasis added).
125
     This notice is similar to that in Clark, in which we
determined that a federal lawsuit surviving a motion to dismiss
gave “prison officials . . . direct notice that their conduct
regarding solitary confinement potentially violated the Eighth
Amendment,” and supported our conclusion that Clark alleged
the violation of a clearly established law. 

(emphasis added).




                              33
Williams’s conditions of confinement clearly violated basic
principles of Eighth Amendment established by controlling
precedent.126 And that personal notice buttresses our holding
that a reasonable person in the Secretary’s shoes would have
known that it clearly violated basic principles of Eighth
Amendment law—established by controlling precedent—to
hold a death row prisoner with a known history of serious
mental illness in solitary confinement for a prolonged period
of time without penological justification.

        The Secretary argues that Porter forecloses this
conclusion, but that argument fails. Porter, like Clark and
Palakovic, also concerned prolonged solitary confinement, but
it only concerned people of sound mind when first placed in
solitary confinement. In Porter, we held that keeping a
prisoner sentenced to death in solitary confinement for thirty-
three years violated the Eighth Amendment, however,
qualified immunity applied because “[w]e ha[d] not found
Eighth Amendment cases with sufficiently similar fact
patterns.”127 Although Palakovic “certainly acknowledge[d]
the dangers of solitary confinement,” we “distinguishe[d]
Palakovic from Porter’s case” on the basis “that the plaintiff
was not on death row and had specific known mental health


126
    In Busanet v. Wetzel, No. CV 21-4286, 

,
at *10–14 (E.D. Pa. Aug. 4, 2023), the court—on similar
facts—concluded that the right of an individual on death row
with preexisting mental illness not to be held in prolonged
solitary confinement was clearly established. We find Judge
McHugh’s reasoning to be sound, and echo many of the same
principles throughout this opinion.
127
    

.




                              34
issues pre-assignment to solitary confinement.”128 Therefore,
it was not yet clearly established that the Eighth Amendment
prohibited placing a person without a known preexisting
serious mental illness in prolonged solitary confinement while
on death row prior to our deciding Porter in 2020.129

        The Secretary argues that based on Porter, Williams’
sentence—and not his health—controls the analysis. Porter
indeed recognized that the sentence an individual serves may
be relevant, but the “touchstone” of an Eighth Amendment
analysis has long been, and remains, “the health of the
inmate[,]”130 not his sentence. Just as the known preexisting
mental illness pre-assignment to solitary confinement was a
distinguishing factor in Porter, it is a distinguishing factor
here. As Porter recognized, this distinction is important. Our
precedents have made clear that solitary confinement can
“cause cognitive disturbances” after “even a few days”131 in a
person without a preexisting mental illness; obviously, such
prolonged confinement is particularly cruel for a person with
“severely compromised mental health.”132 In other words,
Porter certainly suggests that being on death row may be
relevant to an Eighth Amendment analysis in some contexts.
It is not possible, however, to read Porter as standing for the
proposition that the Eighth Amendment rights for individuals
with known preexisting serious mental illness turn on the
nature of their sentences—a non-health related concern.


128
    

 (emphasis added).
129
    See 

.
130
    Young, 

.
131
    Williams I, 

 (citation omitted).
132
    Clark, 

. (alterations in original).




                                35
        Next, the Secretary argues that respondents did not
violate clearly established law because the DOC purportedly
kept Williams in solitary confinement pursuant to an internal
policy interpreting 61 Pennsylvania Consolidated Statute,
Section 4303. In doing so, the Secretary gives tremendous
weight to an internal DOC policy that is actually irrelevant.
The Secretary begins by noting that Williams was initially
placed in solitary confinement pursuant to Section 4303. That
is simply wrong.133 Williams was initially placed in solitary
confinement in 1993, and Section 4303—directing placement
in solitary confinement for death-row prisoners—did not go
into effect until five years later.134 In other words, although the
DOC knew that Williams had a preexisting serious mental
illness, Williams nevertheless languished in solitary
confinement after the expiration of his death warrant, not
because of Section 4303, but because of the DOC policy that
remained in effect until 2019, when the DOC settled the Eighth
Amendment and ADA claims brought against it.

       According to the Secretary, he is entitled to qualified
immunity because keeping Williams in solitary confinement
for twenty-six years was “consistent with the [DOC] policy in
effect during the relevant period of time.”135 The sole support

133
    See supra Section I.b., n. 34, 35.
134
    1998 Pa. Legis. Serv. Act 1998-80 (West).
135
    Appellee Br. 21. Defendants do not argue that Section 4303
prohibited them from removing death-row prisoners, like
Williams, from solitary confinement after their death warrant
had expired.       Nor could they.        The Pennsylvania
Commonwealth Court has held that pursuant to Section 4303,
“[o]nce [a death] warrant has expired . . . . ‘it is entirely a




                                36
for this conclusory assertion is a citation to Williams I, in which
we stated that the DOC’s interpretation of Section 4303, which
resulted in the DOC’s continued confinement of individuals on
death row, was “not without support.”136

       The relevant passages from Williams I are inapposite, as
that opinion addressed alleged violations of procedural due
process rights, not cruel and unusual punishment.137
Moreover, in Williams I, we had no occasion to consider
whether the DOC’s indiscriminate practice of keeping people
with known preexisting serious mental illness in solitary
confinement indefinitely without penological justification was
reasonable because the plaintiff did not allege that he had a
known preexisting serious mental illness. And absent
individualized evidence demonstrating that prison officials
kept an inmate in solitary confinement for a legitimate
penological purpose, DOC’s blanket policy of keeping people
with known preexisting serious mental illness in solitary
confinement solely because they were sentenced to death, even


matter of the Department’s discretion where to house an
[incarcerated person].’” Porter, 

 n.9 (quoting
Clark v. Beard, 

). Therefore, after 2005, when
Williams’ warrant expired, the DOC had discretion as to where
to hold him.
136
    Williams I, 

.
137
    See 

 at 557–76. Even if Williams I did concern cruel and
unusual punishment, it would still be inapplicable. In Williams
I, we concluded that the DOC’s policy was “only relevant to
our qualified immunity analysis because the case law . . . did
not adequately inform [the defendants] that the policy ran
counter to Plaintiffs’ protected liberty interests.” As explained,
that is not the case here.




                                37
in the absence of an active death warrant, amounted to “foul”
and “inhuman” “conditions of confinement . . . without
penological justification,”138 a classic Eighth Amendment
violation.139 Moreover, we are not willing to accept the
argument that one can escape liability by relying upon a policy
that s/he knows to be unconstitutional.140 Given the 2014 DOJ
report, the Secretary had to know that any policy requiring an
individual with a known preexisting serious mental illness to
be confined in solitary without a legitimate penological
justification was contrary to law.141

       Accordingly, we hold that individuals with a known
history of serious mental illness have a clearly established right
not to be subjected to prolonged, indefinite solitary

138
    Clark, 

 (quoting Young, 

).
139
    The cruelty of the DOC’s policy is exacerbated by the
practice of keeping lights in solitary cells on twenty-four hours
a day. We cannot think of any legitimate penological purpose
for this—especially given the impact it could have on someone
with serious mental illness; and the Secretary offers none.
140
     Just as we do not “equate policy violations with
constitutional violations,” McKenna v. City of Philadelphia,

 (3d Cir. 2009), adherence to policy does not
compel the conclusion that no constitutional violation
occurred.
141
    Moreover, Secretary Wetzel readily admits that he “is
familiar with the work of [researcher] Dr. [Craig] Haney,
which sets forth at length the harmful effects of solitary
confinement.” Johnson v. Wetzel, 

(M.D. Pa. 2016). In light of this research, he acknowledges
that “‘long term’ solitary confinement ‘certainly could’ have
negative effects on mental health.” 

                               38
confinement—without penological justification—by an
official who was aware of that history and the risks that solitary
confinement pose to someone with those health conditions. To
hold otherwise would fail in the face of Eighth Amendment
jurisprudence. 142 Given this record, the right at issue was
clearly established.

        The dissent improperly truncates our holding, and then
criticizes the subsequent vagueness created by its own
truncation. Despite the dissent’s assertion to the contrary, we
do not hold that “prison officials [are prohibited] from housing
a mentally ill inmate in solitary confinement for long periods
of time.”143 Indeed, our holding is limited to the specific
allegations of this appeal from the grant of summary judgment
and is as we have just stated in the preceding paragraph.




142
     As previously stated, Williams also argues that the
Secretary is not entitled to qualified immunity because he was
deliberately indifferent to Williams’ health and safety by
knowingly subjecting him to twenty-six years in solitary
confinement, despite his awareness of the serious risks such
confinement posed. The District Court did not address this
argument, and we need not reach it because we determine that
the Secretary is not entitled to qualified immunity since there
is a material issue of fact as to whether Williams put forth
enough evidence to show a violation of a constitutional right,
and the right at issue was clearly established.
143
    Dissent at 2 (quoting Clark v. Coupe, 

)
(internal quotation marks omitted) (describing how the lower
court framed the right before clarifying the right to be more
specific).




                               39
        Lest there be any confusion, we reiterate that we hold
“that individuals with a known history of serious mental illness
have a clearly established right not to be subjected to
prolonged,       indefinite   solitary    confinement—without
penological justification—by an official who was aware of that
history and the risks that solitary confinement pose to someone
with those serious health conditions.”144 That is nearly
identical to the holding in Clark v. Coupe,145 and it is hardly a
novel or surprising proposition. In Clark, we framed the
clearly established right at issue as: “the right of a prisoner
known to be seriously mentally ill to not be placed in solitary
confinement for an extended period of time by prison officials
who were aware of, but disregarded, the risk of lasting harm
posed by such conditions.”146 Relying on much of the same
binding precedent Clark did,147 our current holding merely
clarifies that the clearly established right in Clark extends to
individuals on death row.

       Having clarified our holding, and again highlighted the
many cases we rely upon to conclude that the right was clearly
established here, the remainder of the dissent’s criticisms about
our use of the 2014 DOJ report have little force. As we noted,
the 2014 DOJ report concisely packaged much of the relevant


144
    Op. 33-34 (emphasis added).
145
    

 at 182.
146
    

147
    Clark relied, inter alia, on Hope v. Pelzer, 

(2002), Farmer v. Brennan, 

 (1994), Palakovic v.
Wetzel, 

 (3d Cir. 2017), and Young v. Quinlan,

 (3d Cir. 1992), in concluding that the right at
issue was clearly established. We do the same.




                               40
and binding law and delivered it to the defendant’s doorstep.148
In disparaging the relevance of the DOJ report to our analysis,
our dissenting colleague misses the point. The DOJ letter
addressed to Secretary Wetzel is not important because it had
the force of legal precedent. We agree that it obviously did not
and could not have had the force of legal precedent. That is
simply not the point, and it is not why the DOJ report that was
on the record here is so important. Rather, it is important
because it directly informed the Secretary that the practice of
solitary confinement that had been investigated was a violation
of the Eighth Amendment based upon the judicial decisions
cited in the letter. The dissent would prefer we ignore that
notice, but binding precedent and the fact that Secretary Wetzel
was personally informed of the constitutional violation
establish its relevance. And that personal notice simply
buttresses our conclusion that controlling precedent clearly
established that the conditions of Williams’s confinement
violated the Eighth Amendment.

148
    Op. at 24. Notably, the dissent relies upon the hallowed
precedent of Marbury v. Madison, 

(1803), to suggest that our holding somehow violates the
separation of powers, ignores the obvious principle that the
courts, and not the executive branch, determine what is legal
precedent. See Dissent at 5.
        Ironically, while expressing concern that the Majority
disregards the role of the courts as set forth in Marbury v.
Madison, our dissenting colleague relies on a single judge
concurrence that disparages Supreme Court jurisprudence.
Dissent at 7 (citing United States v. Grant, 

, 201–
07 (3d Cir. 2021) (en banc) (Hardiman, J., concurring)
(criticizing the Supreme Court for “stray[ing] far from the text
and original meaning of the Eighth Amendment”).




                              41
       Moreover, our use of the DOJ report here is no more in
tension with Marbury v. Madison than the Supreme Court’s
use of the analogous DOJ report in Hope v. Pelzer. In both
cases, the DOJ report buttresses the conclusion that “a
reasonable person would have known” of the Eighth
Amendment violation.149 Following Lanier, which established
the “fair warning” standard, Hope makes clear that for
purposes of qualified immunity, the “salient question” is
whether the state of the law gives defendants “fair warning”
that their alleged conduct was unconstitutional.150 Following
that precedent, the Supreme Court explicitly held that “in light
of binding Eleventh Circuit precedent, an Alabama
Department of Corrections (ADOC) regulation, and a DOJ
report informing the ADOC of the constitutional infirmity in its
use of the hitching post . . . the respondents’ conduct violated
‘clearly established statutory or constitutional rights of which
a reasonable person would have known.’”151

       It should not be a controversial or novel proposition that
a personalized report setting forth binding, applicable case law,
and detailing how a specific defendant is systematically
violating the Eighth Amendment, is highly relevant to a finding
that such defendant had “fair notice.” We simply cannot agree
with our dissenting colleague’s belief that the defendants
should nevertheless be wrapped in the protective cloak of




149
    Hope, 

 (citing Harlow, 

).
150
    Id. at 741.
151
    Id. at 741–42 (citing Harlow, 

) (emphasis
added).




                               42
qualified immunity after such “fair and clear warning” of the
clearly established law.152

        Finally, the dissent complains that even if we are correct
in concluding that individuals with a known serious mental
illness have the right not to be held in prolonged, indefinite
solitary confinement, the case law upon which we rely does not
provide adequate notice with regard to individuals on death
row.153 But as already explained, the health of the incarcerated
person is what drives the Eighth Amendment analysis, not the
type of sentence.154 Moreover, as early as the 19th century, the
Supreme Court has recognized that solitary confinement is a
severe and additional punishment even for people on death
row.155

                B. Fourteenth Amendment

       The District Court assumed Williams was bringing a
substantive due process claim under the Fourteenth
Amendment and concluded that Williams’ conditions-of-
confinement claim was only cognizable under the Eighth

152
    Lanier, 

 (1997).
153
    See Dissent at [5].
154
    See Op. at 31.
155
    See In re Medley, 

, 167–71 (1890). Although
the Eighth Amendment was not considered in Medley, the
Court concluded without hesitation that solitary confinement is
“an additional punishment of the most important and painful
character” that violates the ex post facto provision of the
Constitution when added to a sentence after the offense has
been committed because it increases the punishment. 

.




                               43
Amendment. We review de novo a district court’s sua sponte
dismissal of a claim under 

(e)(2), and we
review a district court’s decision not to grant leave to amend
for abuse of discretion.156

        Because Williams was proceeding pro se, his complaint
should have been liberally construed as asserting a Fourteenth
Amendment procedural due process claim.157 Williams’
allegations that he was subjected to “automatic placement in
indefinite solitary confinement” and “without either
individually assessing the risk he may actually and objectively
pose for others . . . or otherwise justifying the need for
isolations [sic],” indicates that he was alleging that he had been
kept in solitary confinement without meaningful review or an
opportunity to be heard.158

       Nonetheless, at the time of Williams’ confinement, the
due process rights of an active death-row prisoner had not been
clearly established. The Court in Williams I held that
individuals on death row who had been granted resentencing
hearings had a liberty interest that prohibited the state from
housing them in solitary confinement on death row without
“regular and meaningful review of their continued
placement.”159 However, we did not reach a conclusion as to
whether the due process clause of the Fourteenth Amendment
limited the State’s ability to subject prisoners with active death




156
    Dooley v. Wetzel, 

 (3d Cir. 2020).
157
    See Vogt v. Wetzel, 

 (3d Cir. 2021).
158
    J.A. 048–49.
159
    

 (emphasis in original).




                               44
row sentences to prolonged solitary confinement.160 Similarly,
in Porter we did not reach a determination as to whether
prisoners with active death row sentences had a procedural due
process claim.161 Given that we have not determined whether
an active death-row prisoner has a procedural due process
interest in avoiding continued solitary confinement, the DOC
is entitled to qualified immunity on this claim.
                C. Claim Under the Americans with
                   Disabilities Act (ADA)


       The DOC does not escape liability under the ADA
because it placed and held Williams in solitary confinement
pursuant to a since-revoked DOC policy. The District Court
acknowledged that there was a material dispute of fact as to
whether the Secretary knew Williams suffered from serious
mental illness. Drawing all inferences in favor of Williams,
we must assume that the Secretary was aware of Williams’
serious mental illness. Therefore, under the ADA, the DOC
had an obligation to modify its practices to ameliorate the
harms of prolonged solitary confinement on Williams, or
alternatively, demonstrate that the modifications would

160
    See 

 at 552 n.2 (stating that the Court “take[s] no position
on whether any inherent risk posed by inmates whose death
sentences are still active and viable is sufficient to raise a
presumption that their continued confinement on death row is
justifiable”).
161
    See Porter, 

 n.2 (reasoning that it need not
decide whether a prisoner on death row who has “not been
granted [a] resentencing[] hearing and vacatur ha[s] a
procedural due process interest in avoiding continued solitary
confinement” (citing Williams I, 

 n.2)).




                                45
fundamentally alter the nature of the “service, program or
activity.”162 The DOC failed to do either of those things.
Additionally, we find that Williams has stated a claim of
deliberate indifference under the ADA where—viewing the
facts in the light most favorable to Williams—the Secretary
knew Williams had a preexisting serious mental illness, was
aware of the risk of prisoner safety, and failed to act despite
this knowledge.
          1. The Elements of an ADA Claim

        To bring a claim under the ADA, Williams “must
demonstrate: (1) he is a qualified individual; (2) with a
disability; (3) [who] was excluded from participation in or
denied the benefits of the services, programs, or activities of a
public entity, or was subjected to discrimination by any such
entity; (4) by reason of his disability.”163 The ADA defines
“disability” as “a physical or mental impairment that
substantially limits one or more major life activities of such
individual,” “a record of such an impairment,” or “being
regarded as having such an impairment.”164 “[M]ental illness
qualifies as a disability under” the ADA.165 The District Court
correctly concluded that there is an issue of material fact as to
whether the DOC knew that Williams had a serious mental


162
    

(b)(7).
163
    Haberle v. Troxell, 

, 178–79 (3d Cir. 2018)
(quoting Bowers v. Nat’l Collegiate Athletic Ass’n, 475, F.3d
524, 533 n.32 (3d Cir. 2007)) (alterations in original).
164
    

(1).
165
    Disability Rts. N.J., Inc. v. Comm’r, N.J. Dep’t of Hum.
Servs., 

 (3d Cir. 2015); 

(d)(2)(iii).




                               46
illness, and therefore knew that he had a disability under the
ADA.

        Nevertheless, the Secretary now argues that Williams’
ADA claim fails because he was not placed in solitary
confinement “by reason of” his disability but instead because
of his death sentence.166 Initially, we note that the DOC
forfeited this argument by not raising it before the District
Court.167 However, even if the DOC had raised this argument,
it would have failed, because it misconstrues Williams’ claim.
Williams does not argue that he was placed in solitary
confinement “by reason of” his disability. Instead, he argues
that, considering his disability, the DOC failed to “take certain
pro-active measures to avoid the discrimination proscribed by
Title II [of the ADA].”168 We agree.

       Our decision in Furgess v. Pennsylvania Department of
Corrections169 is instructive. There, we considered whether
Furgess, an incarcerated person with a disability, had suffered
discrimination “by reason of his disability.”170 Furgess, who
had received the accommodation of an accessible shower stall
in general population, was placed in the Restrictive Housing
Unit (RHU), “which lacked accessible shower facilities.”171 In
response to Furgess’ disability discrimination claim, the DOC
argued that Furgess was “deprived of a shower because his own

166
    Appellee Br. 30 (emphasis omitted).
167
    Barna, 

 (citing United States v. Olano, 

 (1993).
168
    Chisholm v. McManimon, 

 (3d Cir. 2001).
169
    

 (3d Cir. 2019).
170
    

.
171
    

                               47
misconduct landed him in the RHU, which lacked accessible
shower facilities, not because the [DOC] intentionally
discriminated against him on the basis of his disability.”172 We
disagreed, and determined that the DOC had misconstrued the
causation element under the ADA. We explained: “the reason
why Furgess was housed in the RHU is irrelevant . . . . [A]
prison’s obligation to comply with the ADA . . . does not
disappear when inmates are placed in a segregated housing
unit, regardless of the reason for which they are housed
there.”173

        This same reasoning applies to Williams’ claim under
the ADA. Although Williams was placed in solitary
confinement pursuant to a prison policy, the DOC’s obligation
to comply with the ADA did not disappear because of his death
sentence. One who violates the ADA (or any other statute)
cannot escape liability merely because the violation is a result
a state policy that conflicts with federal law. Indeed, a contrary
holding would erode the protections afforded by remedial
statutes such as the ADA, as the rights they confer would
depend on the vagaries of governmental policies. Just as the
DOC’s failure to provide accessible showers in the RHU was
not by reason of Furgess’ alleged misconduct, the DOC’s
failure to provide Williams with reasonable accommodations
for his disability was not by reason of his death sentence.

      The DOC has an obligation to make “reasonable
modifications” to “policies, practices, or procedures” where
modifications are necessary to avoid discrimination on the


172
      

173
      

                               48
basis of a disability.174 Assuming that Williams had a known
mental illness, the DOC had an obligation to modify its
practices to ameliorate the harms of prolonged solitary
confinement on Williams. The only way the DOC could avoid
this responsibility is by “demonstrat[ing] that making the
modifications would fundamentally alter the nature of the
service, program, or activity.”175 The record is devoid of
evidence that providing Williams with accommodations would
have fundamentally altered the DOC’s services, programs, or
activities.

       Moreover, the DOC’s argument that no ADA violation
exists because Williams’ treatment is the same as that of non-
disabled death-row prisoners reflects a “lack of appreciation
for one of the chief purposes of the ADA.”176 The purpose of
the ADA is to ensure that persons with disabilities can
participate equally in society.177 Because people with and
without disabilities may have different needs, there are
instances in which providing equal treatment will not achieve
the ADA’s goals of equal opportunity. As Judge McHugh
stated in Anderson v. Franklin Institute, “a facially neutral
policy can still result in discrimination.”178 “[A] person with a

174
    

(b)(7)(i).
175
    

176
    Anderson v. Franklin Inst., 

 (E.D.
Pa. 2016).
177
    

(a)(7).
178
    

. That decision explained, “[t]he
ADA was promulgated in part to level the playing field for
disabled individuals . . . . Stated differently, if disabled persons
protected under the ADA were similarly situated to all other




                                49
disability may be the victim of discrimination precisely
because she did not receive disparate treatment when she
needed accommodation.”179 And as the Ninth Circuit has
recognized, because facially neutral policies may “disparately
impact people with disabilities,” “a public entity may be
required to make reasonable modifications” to these
policies.180

      Given the factual dispute as to whether the DOC knew
that Williams had a serious mental illness and because the
DOC failed to make modifications or accommodations to
Williams’ conditions of confinement, Williams’ claim under
the ADA survives summary judgment.




persons, there would be no need for the ADA in the first place.”

179
    Presta v. Peninsula Corridor Joint Powers Bd., 

 (N.D. Cal. 1998) (citation omitted).
180
    Payan v. L.A. Cmty. Coll. Dist., 

, 738 (9th Cir.
2021). We are not persuaded by the DOC’s argument that,
pursuant to our precedent in Disability Rights, 

,
Williams must have pointed to evidence that he was “denied
some benefit that a public entity has extended to nondisabled
people.” Appellee Br. 31. Although in Disability Rights, we
held as much, that was in the context of a claim that the
appellant had been denied “public services, programs, and
activities.” 

. In contrast, Williams argues that
he was discriminated against because of his disability.




                               50
          2. Compensatory Damages

       Compensatory damages, as Williams seeks here, are
unavailable “absent proof of ‘intentional discrimination,’”181
which requires at least deliberate indifference.182 To prove
deliberate indifference, the (1) “defendant must actually have
known or been aware of the excessive risk to [prisoner]
safety”183 and (2) failed to act despite that knowledge. 184

       The District Court determined that Williams failed to
put forth evidence that the DOC acted with deliberate
indifference.    We disagree.       The evidence here is
uncontradicted as to the second factor: by neither removing
Williams from solitary confinement for twenty-six years, nor
making modifications to his conditions of confinement, the
DOC failed to act. Assuming that Williams had a preexisting
serious mental illness that the DOC was aware of, the only
question is whether there is a genuine factual dispute as to
whether the DOC actually knew that prolonged solitary
confinement caused an “excessive risk” to prisoner safety.185
       We have already explained that the record includes
evidence that suggests the DOC knew that prolonged solitary
confinement causes an excessive risk of harm to prisoners with
serious mental illness. For instance, the 2014 DOJ report

181
    Haberle, 

 (quoting S.H. ex rel. Durrell v.
Lower Merion Sch. Dist., 

 (3d Cir. 2013)).
182
    S.H. ex rel. Durrell, 

.
183
    Beers-Capitol v. Whetzel, 

 (3d Cir. 2001).
184
    Haberle, 

 (quoting S.H. ex rel. Durell, 

).
185
    See S.H. ex. Rel. Durrell, 

 (“The relevant
inquiry is knowledge.”).




                              51
concluded that the DOC was violating the ADA by (1)
automatically placing individuals with serious mental illness in
solitary confinement without an individualized assessment of
their mental health needs and the appropriateness of such
placement; and (2) failing to ensure that prisoners with serious
mental illness placed in solitary confinement for reasons
unrelated to their disabilities could “participate in and benefit
from prison activities, programs, and services.”186 That letter
also provided the DOC with “narrowly tailored” remedies it
could implement to ensure its compliance with obligations
under the ADA.187

       The DOC’s contention that Williams improperly relied
on a “generalized history” of ADA violations is unavailing.
Although we have explained that “a generalized history of civil
rights violations . . . would not necessarily demonstrate ‘a
pattern’”188 of violations sufficient to prove deliberate
indifference, the DOJ’s report does far more than provide a
“generalized history” of ADA violations. It documents the
DOC’s pattern and practice of placing individuals with
preexisting mental illness in prolonged solitary confinement,
and explains that even where “solitary confinement is
necessary,” the DOC fails “to adjust the conditions of solitary
confinement to avoid harm to the prisoner.”189 That report—

186
    J.A. 081–82.
187
    J.A. 083.
188
    Haberle, 

 (quoting Beers-Capitol, 

).
189
     J.A. 080. This situation is much more akin to that in
Haberle v. Borough of Nazareth, 

 (3d Cir. 2019),
in which we found that deliberate indifference had been




                               52
coupled with the robust body of caselaw and reports on the
harms caused to prisoners with preexisting mental illness190—
creates a genuine issue of material fact as to whether the DOC
was deliberately indifferent in subjecting Williams to
prolonged solitary confinement under the circumstances
alleged here. Accordingly, we will vacate the District Court’s
grant of summary judgment on Williams’ ADA claim and
remand for further proceedings.
       V.    Conclusion

       For the above reasons, we will affirm the District
Court’s order dismissing Williams’ Fourteenth Amendment
claim, and we will vacate the District Court’s order granting
summary judgment for the Secretary on Williams’ Eighth
Amendment and ADA claims and remand for further
proceedings consistent with this opinion.




plausibly pled in allegations that a police department was
aware of a pattern of police encounters causing harm to people
with mental disabilities but failed to adopt an accommodation
policy. 936 F.3d at 141–42.
190
    See supra Part IV.A.




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                           JA089
Williams v. Secretary Pennsylvania Department of
   Corrections, No. 22-2399

PHIPPS, Circuit Judge, dissenting in part.

    In denying qualified immunity to the former Secretary of
the Pennsylvania Department of Corrections, John Wetzel,
with respect to death-row inmate Roy Lee Williams’s claim for
cruel and unusual punishment brought under 

,
the Majority Opinion relies on a new rule of constitutional law:
death-sentenced inmates with any known history of mental
illness cannot be subjected to prolonged solitary confinement.
To arrive at the conclusion that such a constitutional right was
clearly established between 2014 and 2019, when Williams
was in solitary confinement, so as to defeat qualified immunity
here, where Secretary Wetzel relies only on the ‘clearly
established’ prong in seeking such immunity, the Majority
Opinion ignores this Court’s precedent and misapplies
foundational principles. For those reasons, elaborated below,
I respectfully dissent.

    The lynchpin of the Majority Opinion is its statement that
“[u]ndoubtedly, holding a prisoner with a known preexisting
serious mental illness in solitary confinement for a protracted
period without penological justification would result in
unnecessary and wanton infliction of pain.” Maj. Op. at 23
(citation omitted). Using that principle, the Majority Opinion
articulates the right at issue as that of “a death row prisoner,
with a known preexisting serious mental illness not to be
placed and held in prolonged solitary confinement . . . without
penological justification.” 

 at 22–23. The Majority
Opinion, however, provides no caselaw clearly establishing
such a substantive right, much less its applicability to death-
row inmates.

   The Majority Opinion relies heavily on Young v. Quinlan,

 (3d Cir. 1992), but that case involved
confinement in a dry cell as a means of enforcing prison




                               1
discipline for a general population inmate – not a death-
sentenced inmate in a non-dry cell. 

. And this Court
in Clark v. Coupe, 

 (3d Cir. 2022), has since
emphasized that the articulation of Eighth Amendment rights
in the context of solitary confinement is a “heavily fact-specific
inquiry.” 

. The Clark decision applied that principle
even after fully considering Young, by underscoring that
“solitary confinement does not per se violate the Constitution
‘as long as the conditions of confinement are not foul, inhuman
or totally without penological justification.’” 

 (quoting
Young, 

). Thus, in light of the guidance from
Clark, the factual differences between Young and this case
preclude Young from providing the requisite notice with
respect to the Eighth Amendment claim at issue here.

   The Majority Opinion’s conclusion regarding the clarity of
the right at issue also cannot be reconciled with this Court’s
most recent solitary confinement decisions.

    In Williams v. Secretary Pennsylvania Department of
Corrections, 

 (3d Cir. 2017), this Court first
announced a rule that a prison’s policy of continuing to house
death-sentenced inmates whose death sentences had been
vacated in solitary confinement was unconstitutional. 

. But that rule was newly articulated, and this Court held
that qualified immunity applied because that articulation of the
right was not clearly established. 

. Moreover, the
rule announced in Williams was based on procedural due
process principles and not the Eighth Amendment. 

.
Also, that rule applied to only inmates whose death sentences
had been vacated, but here, Williams’s sentence remains in
effect. The Williams decision therefore does not provide the
heavily fact-specific notice needed to clearly establish that
Secretary Wetzel violated Williams’s Eighth Amendment
rights.

   Also in 2017, in Palakovic v. Wetzel, 

 (3d Cir.
2017), this Court overruled a District Court’s dismissal of an


                                2
Eighth Amendment claim for an inmate’s solitary
confinement. See 

 at 225–26. The allegations there differ in
several key respects from the facts of this case: the inmate was
not on death row – he was repeatedly housed in solitary
confinement for penal purposes; the inmate was mocked for his
mental health issues and abused by staff; and the inmate was
denied medical care despite the documented deterioration of
his mental health. See 

 at 216–17, 228. Thus, under the
heavily fact-specific inquiry applicable to the ‘clearly
established’ prong, Palakovic does not provide the requisite
notice to defeat qualified immunity in this case. See 

    This Court’s decision in Porter v. Pennsylvania
Department of Corrections, 

 (3d Cir. 2020),
similarly does not provide the notice required to defeat
qualified immunity. That case expressed a new rule applicable
to death row inmates that “prolonged solitary confinement
satisfies the objective prong of the Eighth Amendment test and
may give rise to an Eighth Amendment claim, particularly
where . . . [d]efendants have failed to provide any meaningful
penological justification.” 

. Because that articulation
of the right had not previously been clearly established, this
Court held that the defendants in that case were entitled to
qualified immunity. See 

 And even if Porter were factually
similar enough to provide the requisite notice, it could not do
so here because it was decided in 2020, after Williams’s period
of solitary confinement ended.

   Finally, in 2022, in Clark v. Coupe, this Court articulated
an Eighth Amendment right with respect to solitary
confinement with several qualifiers. But Clark, like Young and
Palakovic, was not a case involving a death-sentenced inmate.
And as recently as the Porter decision in 2020, this Court
emphasized the significance of status on death row for
purposes of assessing the constitutionality of solitary
confinement:




                               3
       Cases that challenge interpretation of death row
       policy and conditions on death row are distinct
       from cases brought by inmates in general
       population subject to solitary confinement.

Porter, 

; cf. 

 at 461–62 (Porter, J., concurring
in part and dissenting in part) (“Our Court has not held that the
conditions of confinement on Pennsylvania’s death row are
unconstitutional, and we have a long train of decisions to the
contrary.”). Thus, even if the formulation of the right by the
Majority Opinion were correct as to the general prison
population, that would not be enough to provide adequate
notice: there would still have to be additional precedent
applying that formulation of the right to death-row inmates.
And the Majority Opinion identifies no such case.

    Under that tapestry of precedent, the right as articulated by
the Majority Opinion was not clearly established between 2014
and 2019 when Williams was in solitary confinement.

    Lacking precedent from the relevant time period for the
proposition that it is unconstitutional to place death-row
inmates with any history of serious mental illness in solitary
confinement, the Majority Opinion makes a grievous error
offensive to basic principles of separation of powers: it
substitutes a 2014 findings letter from the United States
Department of Justice for binding precedent. See Letter from
Jocelyn Samuels, Acting Assistant Attorney General for the
Civil Rights Division of the United States Department of
Justice, & David J. Hickton, United States Attorney for the
Western District of Pennsylvania, to the Honorable Tom
Corbett, Governor of the Commonwealth of Pennsylvania
(Feb. 24, 2014) (JA62–89) (hereinafter the ‘2014 Letter’). But
the Judiciary, not the Executive Branch, has the authority to
announce binding interpretations of the Constitution. See
Marbury v. Madison, 

 (1803); see
also Loper Bright Enters. v. Raimondo, 

, 2257
(2024) (“To ensure the ‘steady, upright and impartial


                                4
administration of the laws,’ the Framers structured the
Constitution to allow judges to exercise that judgment
independent of influence from the political branches.” (quoting
The Federalist No. 78, at 522) (Alexander Hamilton) (J. Cooke
ed., 1961)). And qualified immunity, which depends on fair
notice at the time of the alleged violation of a federal right, 1
looks to judicial opinions – not letters from federal agencies –
as the sources for such notice. See Porter, 

. So,
treating constitutional interpretations of a federal agency as
having the force of judicial precedent is plainly incorrect. See
Loper Bright, 144 S. Ct. at 2257 (“The Framers also
envisioned that the final ‘interpretation of the laws’ would be
‘the proper and peculiar province of the courts.’” (quoting The
Federalist No. 78, at 525)). Thus, a letter from a federal agency
cannot satisfy the ‘clearly established’ standard for qualified
immunity. And if the 2014 Letter – which addressed solitary
confinement of both general population and death-sentenced
inmates – did provide adequate notice of a clearly established
constitutional right, then why has no subsequent decision of
this Court – Williams, Palakovic, Porter, or Clark – relied on
the 2014 Letter for that purpose? The answer is simple: a letter
from an Executive Branch agency does not suffice for notice
under the ‘clearly established’ prong of qualified immunity.


1
   See Rivas-Villegas v. Cortesluna, 

 (2021)
(explaining a government official has ‘fair notice’ if at the time
of the alleged constitutional violation it was ‘beyond debate’
such that “every reasonable official would have understood
that what he is doing violates that right” (quoting see also
Mullenix v. Luna, 

 (2015) (per curiam))); Burns
v. Pennsylvania Dep’t of Corr., 

 (3d Cir.
2011) (“Because qualified immunity is intended to protect
officials absent ‘fair warning’ that their conduct violates
constitutional guarantees, we examine qualified immunity
from the perspective of the official at the time of the
violation.”).

                                5
By contravening that principle and doing what those prior
cases did not, the Majority Opinion makes a big mistake.

    The Majority Opinion attempts to legitimatize its reliance
on the 2014 Letter by noting that the Supreme Court in Hope
v. Pelzer, 

 (2002), relied on a report from the
United States Department of Justice. But the Supreme Court
used that report – not as a substitute for precedent – but rather
as evidence for the proposition that the conduct at issue there
(tying a shirtless prisoner to a hitching post in the Alabama sun
for seven hours without bathroom breaks and with only one or
two offers of water) was obviously a violation of the Eighth
Amendment. See 

 at 734–35. Here, however, the Majority
Opinion does not use the 2014 Letter for that purpose. Instead,
it uses the 2014 Letter to set a date certain on which a
constitutional right was clearly established – the date of the
2014 Letter.

    That is impermissible under Hope. Although the modern
Eighth Amendment jurisprudence uses an evolving-standard-
of-decency analysis, see United States v. Grant, 

,
201–07 (3d Cir. 2021) (en banc) (Hardiman, J., concurring)
(recounting with skepticism the development of that strand of
Eighth Amendment jurisprudence because it “strayed far from
the text and original meaning of the Eighth Amendment”), the
Hope exception for obvious constitutional violations applies
only to conduct that has always been obviously cruel and
unusual. See Hope, 536 U.S. at 741–42; see also Taylor v.
Riojas, 

, 8–9 (2020) (per curiam) (holding “any
reasonable officer should have realized” that it was
unconstitutional to confine an inmate for six days in two cells
– one, which “was covered, nearly floor to ceiling in massive
amounts of feces,” and another, which was “frigidly cold” and
required the inmate to sleep naked on a sewage-covered floor
(quotation omitted)); Camreta v. Greene, 

(2011) (Kennedy, J., dissenting) (“That rule permits clearly
established violations to be found when extreme though
unheard-of actions violate the Constitution.”).


                               6
    For conduct that becomes viewed as cruel and unusual by
virtue of evolving standards of decency, Hope does not apply;
rather, case law provides the notice of the updated reach of the
Eighth Amendment, as it typically does for qualified
immunity. See Ashcroft v. al-Kidd, 

, 741 (2011)
(explaining that case law must provide notice such that it places
the constitutional violation “beyond debate”); Montemuro v.
Jim Thorpe Area Sch. Dist., 

 (3d Cir. 2024)
(“A right is clearly established if the case law at the time of the
alleged violation of the right would have put government
officials on fair notice that their conduct violated the plaintiff’s
rights.” (emphasis added)). Any other approach would
impermissibly deny qualified immunity to § 1983 defendants
without first providing them with notice of the evolved nature
of the Eighth Amendment’s protections. See Ziglar v. Abbasi,

, 150–51 (2017) (explaining “[t]he doctrine of
qualified immunity gives officials ‘breathing room to make
reasonable but mistaken judgments about open legal
questions.’” (quoting Al–Kidd, 

)).

    In short, because it does not rely on the 2014 Letter as
evidence that placing a death-row inmate with a history of
mental illness in solitary confinement has always constituted
cruel and unusual punishment, the Majority Opinion misuses
the 2014 Letter in its efforts to defeat qualified immunity.

                               ***

   For these reasons, I respectfully dissent from the denial of
qualified immunity, and I would affirm the judgment of the
District Court in all respects. 2


2
 I also would affirm the judgment against Williams’s claim
under Title II of the Americans with Disabilities Act because
Williams has conceded that he is entitled to only compensatory
damages for his Title II claim and despite having the
opportunity to do so through supplemental briefing, Williams

                                 7
has not produced evidence of a physical injury in connection
with his exclusion from a service, program, or activity, yet the
Prison Litigation Reform Act bars statutory claims that are not
accompanied by such a physical injury, see 42 U.S.C.
§ 1997e(e) (“No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody
without a prior showing of physical injury or the commission
of a sexual act (as defined in section 2246 of Title 18).”); see
also Mitchell v. Horn, 

 (3d Cir. 2003)
(holding that 42 U.S.C. § 1997e(e) requires a “less-than-
significant-but-more-than-de minimis physical injury”); but cf.
Allah v. Al-Hafeez, 

, 252 n.5 (3d Cir. 2000)
(explaining, in the context of an alleged violation of a
constitutional right (but not a statutory right), that the PLRA’s
physical injury requirement may not bar claims for nominal
and punitive damages). Although the Majority Opinion does
not affirm the District Court’s rejection of Williams’s Title II
claim on that alternative ground, as it could, see TD Bank N.A.
v. Hill, 

 (3d Cir. 2019), nothing about the
opinion precludes the District Court from rejecting Williams’s
Title II claim on that basis on remand.




                                 8