September 11, 2018
Appeal from the United States District Court for the Eastern
District of Pennsylvania (D.C. No. 2-08-cv-03010) District
Judge: Hon. Cynthia M. Rufe
Benjamin N. Gialloreto Law Offices of Richard Stoloff Counsel
for Appellant Troy Levi
Carlton L. Johnson Jeffrey M. Scott [ARGUED] Shelley R. Smith
Archer & Greiner Three Logan Square Counsel for
Appellants Jeffrey McLauglin, Timothy Bowns, Maribel Burgos,
Genelle P. Franklin Fridie Law Group Counsel for Appellant
L. Bailey Syreeta J. Moore Bailey & Associates Counsel
for Appellant J.A. Gibbs
Kyungsun Yu Aleena Y. Sorathia Ahmad Aaffarese Joseph E.
Zaffarese Counsel for Appellant William Jezior
Richard L. Bazelon [ARGUED] Michael F. Harris Bazelon Less
& Feldman Robert E. Goldman Counsel for Appellee
Jonathan H. Feinberg Kairys Rudovsky Messing & Feinberg
Bruce P. Merenstein Schnader Harrison Segal & Lewis Mary
Catherine Roper American Civil Liberties Union of
Pennsylvania Counsel for Amicus, American Civil Liberties
Before: JORDAN, RENDELL, and VANASKIE, Circuit Judges.
JORDAN, CIRCUIT JUDGE.
Bistrian, a detainee at the Federal Detention Center
("FDC") in Philadelphia, brought suit against
prison officials there. He alleges that they failed to
protect him from other prisoners and punitively detained him
in the FDC's Special Housing Unit
("SHU"). The District Court granted qualified
immunity to some defendants on some claims, but denied
summary judgment on Bistrian's constitutional claims,
which were brought pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). For the reasons that follow, we will affirm in
part and reverse in part.
August 2005 until March 2008, Bistrian was a detainee at the
FDC while he awaited trial, was tried, convicted, and finally
sentenced on charges related to wire fraud. During that time,
prison officials placed him in the SHU on four occasions.
first placed him in the SHU on November 18, 2005, following
allegations that he had violated telephone use rules. He
stayed there for approximately seven weeks, until January 9,
2006. Three weeks later, on January 25, 2006, prison
officials again put him in the SHU, this time because of
"[s]ecurity [c]oncerns." (App. at 94.) He remained
there for nearly a year, from January 25, 2006, to December
that second round of intensive detention, Bistrian earned
some privileges and became an orderly, a prison job that
provided him the opportunity to interact with other inmates
housed in the SHU. Knowing of Bistrian's access to others
in the SHU, a fellow inmate, Steven Northington, asked him to
pass notes between inmates. In particular, Northington wanted
to facilitate communication for another prisoner, his friend
and criminal confederate Kaboni Savage. Bistrian told
Officers Gibbs and Bowns of that request, rightfully
believing they would be interested. That led to the formation
of a surveillance operation in which Bistrian secretly passed
inmate notes to prison officials. Prison officials
photocopied the notes, and gave Bistrian the original to pass
along. All went as planned until Bistrian accidentally gave a
photocopy of a note, instead of the original, to an inmate,
thereby tipping off the SHU's residents to Bistrian's
cooperation with prison officials. After his cooperation
became known, he received multiple threats and made prison
officials aware of them, including defendants Bowns, Gibbs,
Jezior, and Warden Levi.
their knowledge of the threats against Bistrian, on June 30,
2006, prison officials placed him in the recreation yard
where Northington and two other inmates were also present. In
what, for ease of reference, we will call "the
Northington attack," Northington and the two others
proceeded to brutally beat Bistrian. Jezior and other
officials yelled for the attack to stop, but they did not
enter the yard. Instead, they waited until a larger number of
guards (12 to 15) were present to intervene. By then, the
damage was done. Bistrian suffered severe physical and
psychological injuries, and that is the basis of his claim
under the Fifth Amendment that the prison officials failed to
December 2006, less than a month after Bistrian had completed
his nearly yearlong second detention, prison officials again
placed him in the SHU. They cited his safety as the reason
for doing so. According to the defendants, there had been
death threats against him. Shortly after that placement,
Bistrian's counsel sent a letter to Warden Levi asking
why his client was there. The Warden replied that records
indicated it was due to an investigation. Bistrian was
released two days after that response, having spent
approximately a month in the SHU.
August 2007, at a sentencing hearing, Bistrian objected to
his treatment in prison and the time and circumstances of his
administrative detentions. After the hearing, the government
provided Bistrian's counsel with evidence of the
telephone infractions they relied on as the justification for
Bistrian's confinement in the SHU. That prompted an email
exchange in which Bistrian's counsel asked for an
explanation of how Bistrian had violated prison policies.
Counsel for the government promptly forwarded that request to
Two days after Bistrian's counsel pressed for an
explanation, Bistrian was put in the SHU for the fourth time.
Officer Jezior wrote an incident report stating that Bistrian
had again violated telephone use rules. Using available
administrative procedures, Bistrian contested the placement
but his grievance and appeal were denied. Bistrian alleges
that, after Warden Levi denied the appeal, the Warden said
Bistrian "would never see the light of day again."
(App. at 22 (citation omitted).) Bistrian was in the SHU for
about three months, until early December 2007. That final
stay forms the basis of his First Amendment retaliation claim
and his Fifth Amendment punitive detention claim.
was ultimately sentenced to 57 months' imprisonment and
sent to a correctional facility in New York.
lawsuit began over a decade ago. The operative pleading is an
amended complaint asserting various First, Fifth, and Eighth
Amendment claims against FDC prison officials and medical
staff, and claims under the Federal Tort Claims Act
("FTCA") against the United States. The defendants
filed motions to dismiss all nineteen claims in the amended
complaint, saying there had been a failure to exhaust
administrative remedies and a failure to plead sufficient
facts to overcome the defense of qualified immunity.
Bistrian v. Levi, Civ. No. 08-3010, 2010 WL 3155267,
at *4-7 (E.D. Pa. July 29, 2010). The District Court granted
those motions in part. Id. at *1. It dismissed
thirteen claims but found that six were sufficiently pled to
survive dismissal, including Bistrian's Bivens
claims for violations of the First Amendment and Fifth
Amendment. Id. at *1.
defendants involved in this appeal, with others, then asked
us to review the District Court's denial of their
assertion of qualified immunity. Bistrian v. Levi,
696 F.3d 352, 364-65 (3d Cir. 2012) (Bistrian II).
We affirmed in part, but dismissed the claims against some
defendants and limited the Bivens claims to a Fifth
Amendment procedural due process claim, a Fifth Amendment
substantive due process claim for failure to protect and
another for punitive detention, and a First Amendment claim
for retaliation. Id. at 377. In doing so, we set
forth the legal standards governing the claims we permitted
to proceed. Id. at 366-68, 372-76.
remand and years of extensive discovery, the remaining
defendants filed motions for summary judgment, which the
District Court granted in part and denied in part.
Bistrian v. Levi, 299 F.Supp.3d 686, 713 (E.D. Pa.
2018) (Bistrian III). It granted summary judgment in
favor of all defendants on the Fifth Amendment procedural due
process claim because Bistrian had had the opportunity to
challenge each SHU confinement. Id. at 707-10. It denied
summary judgment on the other three Bivens claims,
concluding that they were based on clearly established rights
at the time of the alleged violations, making the defense of
qualified immunity inapplicable. Id. at 702, 707,
711-12. Those three claims survived, however, only against
certain defendants. Id.
specifically, the District Court granted summary judgment for
five defendants on Bistrian's Fifth Amendment
failure-to-protect claim, but it denied summary judgment for
the eight defendants who bring this appeal. Id. at
700-02. It decided that there were material issues of fact as
to whether those eight "were deliberately indifferent to
the substantial risk to [Bistrian's] safety[, ]"
id. at 700, and it highlighted evidence that it said
could lead a reasonable jury to conclude that "Bergos
[sic], Bowns, Gibbs, Jezior, Levi, McLaughlin, Robinson, and
Rodgers knew of the note-passing scheme and were aware of the
risk [Bistrian] faced once his cooperation … was
discovered." Id. Because the right to be
protected against prisoner-on-prisoner violence was already
clearly established, the Court said, qualified immunity did
not apply. Id. at 702.
Bistrian's Fifth Amendment punitive detention claim, the
District Court granted summary judgment for all defendants
except Levi and Jezior. Id. at 706. It determined
that a genuine dispute of material fact existed
"regarding whether [in sending Bistrian to the SHU for
the fourth time] Jezior and Levi expressly intended to punish
him for his protests to the Court[.]" Id. at
706. The Court relied on the timing of Jezior's incident
report leading to the fourth confinement, as well as
Levi's purported statement that Bistrian "would
never see the light of day again[.]" Id.
Qualified immunity, again, was not available because the
right to be free from punitive detention was already clearly
established at the time. Id. at 707.
the First Amendment retaliation claim was allowed to proceed
against Levi and Jezior. Id. at 710-11. The District
Court determined that Bistrian's challenge to his SHU
confinements was a protected activity and that his fourth
assignment to the SHU could be seen as a retaliatory and
adverse action taken by Jezior and Levi, given the
"suggestive temporal proximity" of Jezior's
incident report and the obvious import of the "never see
the light of day" comment that Levi allegedly made.
Id. Once again, qualified immunity was not
justified, the Court said, because the right against
retaliation was clearly established at the time. Id.
the District Court's summary judgment ruling, the eight
defendants before us now filed their timely interlocutory