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Bistrian v. Levi

United States Court of Appeals, Third Circuit

December 28, 2018

PETER BISTRIAN
v.
WARDEN TROY LEVI, FDC Philadelphia; ASSISTANT WARDEN TRACY BROWN, FDC Philadelphia; ASSISTANT WARDEN BLACKMAN, FDC Philadelphia; CAPTAIN DAVID C. KNOX, FDC Philadelphia; JEFFREY MCLAUGHLIN, Special Investigative Agent, FDC Philadelphia; DAVID GARRAWAY, Special Investigative Agent, FDC Philadelphia; LT J. A. GIBBS, FDC Philadelphia; SENIOR WILLIAM JEZIOR, FDC Philadelphia; SENIOR OFFICER TIMOTHY BOWNS, FDC Philadelphia; SENIOR OFFICER MARIBEL BURGOS, FDC Philadelphia; UNIT MANAGER WHITE, Philadelphia FDC; LT. RODGERS, FDC Philadelphia; LT R. WILSON, Philadelphia FDC; LT DAVID ROBINSON, FDC Philadelphia; UNITED STATES OF AMERICA Jeffrey McLaughlin; Timothy Bowns; Maribel Burgos; David Robinson, Appellants Troy Levi, Appellant William Jezior, Appellant LT James Gibbs, Appellant Gregory Rodgers, Appellant

          Argued September 11, 2018

          On 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, David Robinson

          Genelle P. Franklin Fridie Law Group Counsel for Appellant Lt. Rodgers

          Gary L. Bailey Syreeta J. Moore Bailey & Associates Counsel for Appellant J.A. Gibbs

          Kay 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 Union

          Before: JORDAN, RENDELL, and VANASKIE, Circuit Judges.

          OPINION

          JORDAN, CIRCUIT JUDGE.

         Peter 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").[1] 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.

         I. FACTUALBACKGROUND[2]

         From 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.

         They 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."[3] (App. at 94.) He remained there for nearly a year, from January 25, 2006, to December 8, 2006.

         During 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.[4] 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.

         Despite 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 protect him.[5]

         In 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.

         In 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 the FDC.

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.[6] 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.

         Bistrian was ultimately sentenced to 57 months' imprisonment and sent to a correctional facility in New York.

         II. PROCEDURAL BACKGROUND

         This 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.

         The 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.[7] 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.

         Following 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.[8] 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.

         More 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."[9] 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.

         As to 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.

         So too, 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. at 711-12.

         Following the District Court's summary judgment ruling, the eight defendants before us now filed their timely interlocutory ...


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