Perry v. Spencer

For nearly two years, Jwainus Perry spent between 23 and 24 hours every day behind a solid steel door in a windowless cell so cramped he could stand in the middle of it, stretch out his arms, and touch both sides. During his sparse out-of-cell time, Perry was barred from all meaningful contact with others; he could not hold a prison job, enjoy meals in the chow hall, join in group yard time, or participate in congregate worship services. Instead, Perry worshiped alone, dined alone, and passed the time alone. He even exercised alone in a small, outdoor cage exposed to the elements. Predictably, Perry’s already precarious mental health declined during that time. Though prison staff noted that decline, they refused to remove him from solitary confinement.

Perry endured these conditions after prison officials credited anonymous allegations suggesting that Perry was planning to engage in gang-related activity. But, notwithstanding the fact that Perry disputed even having a gang affiliation, for the next two years he languished in solitary confinement without any meaningful opportunity to contest his placement.

Perry sued the officials responsible for violating his due process rights by holding him in prolonged solitary confinement without notice of why his housing placement was changed, and without any opportunity to meaningfully contest his placement. The district court entered summary judgment for Defendants, concluding that Defendants were entitled to qualified immunity because the law was not clearly established at what point during confinement in solitary due process requirements attached and what level of process was due. Without counsel, Perry appealed to the First Circuit Court of Appeals, which affirmed on the basis of qualified immunity.

The MacArthur Justice Center disagreed and petitioned for rehearing en banc, arguing that the Supreme Court long ago held that prisoners may not be placed into prolonged solitary confinement without meaningful due process protections. The First Circuit granted our petition, and we, along with co-counsel at Terry Garmey & Associates, raised the same argument in our en banc briefing to the full court.

In support of our position, various organizations and individuals filed eight different amicus briefs, some related to the problems that plague the doctrine of qualified immunity, and others about the devastating physical and mental health consequences of solitary confinement. In February 2024, the en banc court affirmed the grant of summary judgment against Mr. Perry on the basis of qualified immunity, but, unlike the prior panel, reached the merits of the constitutional claim, holding that Mr. Perry was owed process by defendants and defendants did not provide him the process due. In doing so, it identified a “presumption” that 30 days in solitary confinement amounts to an atypical and significant hardship requiring meaningful procedural protections. Prior to this holding, the Second Circuit was the best circuit in this regard, having held that periods of solitary approaching one year are presumptively atypical and significant

UPDATE

In February 2024, the en banc court affirmed the grant of summary judgment against Mr. Perry on the basis of qualified immunity, but, unlike the prior panel, reached the merits of the constitutional claim, holding that Mr. Perry was owed process by defendants and defendants did not provide him the process due. In doing so, it identified a “presumption” that 30 days in solitary confinement amounts to an atypical and significant hardship requiring meaningful procedural protections. Prior to this holding, the Second Circuit was the best circuit in this regard, having held that periods of solitary approaching one year are presumptively atypical and significant.