                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                  No. 16-1988
                 _____________

  PHILIP A. WHARTON; JOSEPH ROUNDTREE;
     JAMES MADDOX; LAMAR CORREA,
                        Appellants

                        v.

   CARL C. DANBERG; CATHY ESCHERICH;
    REBECCA MCBRIDE; ROBERT COUPE
              ______________

 APPEAL FROM THE UNITED STATES DISTRICT
                      COURT
      FOR THE DISTRICT OF DELAWARE
       (D.C. Civ. Action No. 1-12-cv-01240)
     District Judge: Honorable Leonard P. Stark
                  ______________

            Argued November 3, 2016
                ______________

Before: JORDAN, GREENAWAY, JR., and RENDELL,
                 Circuit Judges.

          (Opinion Filed: April 19, 2017)
Stephen A. Hampton, Esq. [ARGUED]
Grady & Hampton
6 North Bradford Street
Dover, DE 19904
      Counsel for Appellants

Michael F. McTaggart, Esq. [ARGUED]
Delaware Department of Justice
820 North French Street
Carvel Office Building, 6th Floor
Wilmington, DE 19801
      Counsel for Appellees

Richard H. Morse, Esq.
American Civil Liberties Union
100 West 10th Street, Suite 706
Wilmington, DE 19801
      Counsel for Amicus Curiae
                      ______________

                        OPINION
                     ______________


GREENAWAY, JR., Circuit Judge.



       This putative class action alleges that the Delaware
correctional system routinely fails to release inmates in a
timely manner, holding them for days or weeks beyond when
they should be set free. Appellants, a group of inmates who
were over-detained, have sued top correctional officials—




                            2
specifically, former Delaware Department of Corrections
(“DDOC”) Commissioner Carl Danberg, current DDOC
Commissioner Robert Coupe,1 and Rebecca McBride, the
current Director of the DDOC Central Offender Records
division (“COR”)—seeking both damages and structural
reform of COR. The District Court granted summary
judgment in favor of Danberg, McBride, and Coupe
(Appellees). We will affirm.

I.     FACTS

       In 2008, the Delaware correctional system was facing
scandal for its handling of inmate releases. One inmate,
Jermaine Lamar Wilson, committed suicide in his cell on the
day he was supposed to be—but was not—released.2 Dozens
of other inmates had either been released too early or too late.
National experts, cited in contemporaneous press reports,
expressed surprise about how many Delaware inmates were
improperly released. As gubernatorial candidates from both
parties attacked the state correctional system, there was high-
level support for reform.

      That reform took shape in the establishment of a new
Central Offender Records office within the Delaware
Department of Corrections. Previously, staff at each prison
handled releases individually. COR was meant to centralize,

1
  The District Court allowed the substitution of Coupe for
Danberg as a defendant for purposes of prospective relief
only.
2
  Wilson v. Taylor, 597 F. Supp. 2d 451, 457-58 (D. Del.
2009).




                               3
standardize, and generally improve the state’s processing of
inmate releases. The creation of COR, led by then-DDOC
Commissioner Carl Danberg, was a substantial bureaucratic
undertaking, requiring the department to coordinate with
legislators, the judiciary, and its unionized employees.

       This    litigation,   however,  contests  whether
centralization has brought improvement. Appellants allege
that Delaware’s problems with over-detentions have, if
anything, gotten worse since 2008.

        Under the new system, after an inmate is ordered to be
released (because he or she posted bail, because their bail was
changed from secured to unsecured, or because they
completed their sentence, to offer a few examples), the court
is supposed to fax an order to COR. COR then checks
whether there is a reason to continue holding the individual—
for example, an outstanding warrant—and if there is not,
sends instructions to the facility where they are being held for
that individual’s release.

        Undoubtedly, there were bumps along the way to a
centralized system. In 2008, Danberg himself admitted that
the creation of COR had caused confusion during the
transition itself. Led by Appellees, DDOC has attempted to
improve COR’s functioning since its inception. COR has an
official goal of processing all releases within 24 hours.
Observing delays in the processing of releases, Appellees
have increased staffing levels. They created a new six-month
orientation period for new hires at COR. In 2010, COR
adopted a new computer system, called the Delaware
Automated Correction System (“DACS”) which is meant to
foster better tracking of release dates and the “triage” of




                               4
records to prioritize releases.3 JA 15. Finally, COR created a
new priority unit for releases likely to be fast and easy, such
as those whose bail is changed to unsecured or those whose
charges are dismissed. According to McBride, she and her
co-defendants are “always looking at ways to be more
efficient.” JA 12.

        Even with these interventions, however, Appellants
suggest that COR is badly broken, causing or allowing the
over-detention of as many as thousands of inmates a year.4
To support their theory of over-detention, Appellants
submitted a disparate and somewhat disjointed assortment of
affidavits from several witnesses whose work brings them in
close contact with the correctional system. These affidavits,
described below, reported huge numbers of over-detentions,
albeit in an impressionistic fashion based on the affiants’ own
personal observations and estimates.

     First, a former records clerk at COR named Brenda
    5
Bell estimated that 10 to 20 percent of release orders

3
  One COR employee, however, averred that the new
computer system “caused more delays.” JA 163.
4
   The parties dispute in the briefing exactly how “over-
detention” should be defined and in particular whether over-
detentions of a certain length of time should qualify. This
issue is not material to this appeal.
5
  Bell worked at COR for roughly one year between 2011 and
2012. She worked as a Records Clerk and Records Specialist
during her employment, positions that involved work on
release orders.




                              5
received by COR were not processed and sent to a
correctional facility within 24 hours, and that 20 to 30
inmates per week ended up spending more than two days
waiting for COR to send their release order to their facility.

       Second, a bail bondsperson, Bruny Mercado,6
calculated that about 35 percent of people for whom she had
posted bond were held for more than 24 hours after bond was
posted, and 25 percent of people were held for more than 48
hours afterward. Mercado also said that she had seen no
improvement at COR in its four years of existence.

       Third, a Delaware public defender, Sandra Dean,7
averred that over-detention was a “consistent problem” for
her clients. JA 179. She reported that she had her secretary
call COR every day to inquire about clients whose release had
been ordered by the courts and that she followed up
personally with COR for clients who were not released after
three days. Notably, although Dean only served as a public
defender until 2010, she claimed that the over-detention
problem worsened at the end of that period.



6
   Mercado has owned and operated her own bail bond
company since 2002 and posts bail for approximately 25 to
30 people in Delaware per month. She and her employees
observe the release process after they post bond for their
clients and communicate with COR during that process.
7
 Dean worked as an attorney for the Delaware Office of the
Public Defender from 1991 to 2010. When her clients were
over-detained, she worked to secure their release.




                              6
       Given that COR processes between 16,000 and 18,000
releases per year, these affidavits allege as many as 6,300
over-detentions a year. The affidavits also allege that COR
was informed of the problem, both by Dean’s regular
inquiries and by Mercado, who stated that she had spoken
personally with McBride about the over-detention problems.

        On the other hand, hard, reliable data about the number
of over-detentions occurring each year is more or less missing
from the record. Appellants’ affidavits put forth various
estimates of the over-detention problem, but no precise
quantification or authoritative analysis. They offer a limited
ability to understand how the problem has changed over time.

       In contrast, Appellees do not even attempt to provide a
systematic accounting of over-detentions from their own
archives. Rather, they base their count of over-detentions on
Appellants’ ability to identify specific over-detained inmates.

        The record does include various tables purporting to
show the number of over-detentions each month, which
totaled to two each year of the relevant period except for FY
’10, when there were 18 over-detentions. But neither party
treats those tables as reliable. Given the absence of
information about the source of that data, we likewise decline
to treat these tables as reliable.8


8
  At oral argument, Appellants claimed that those tables count
only the over-detentions specifically brought to McBride’s
attention. This is not evident from the record, but if it were
so, that would not provide any reliable metric for the actual
number of over-detentions.




                              7
       According to Appellants, two specific problems at
COR, in addition to the general failure of the centralization
effort, account for the continuing trouble with over-
detentions. First, they claim that COR is under-staffed
generally and particularly short-handed on nights and
weekends. COR employees and former employees testified
that the division would be able to process releases more
quickly and avoid over-detentions if it had more staff or was
open more hours. Coverage is worse on weekends: although
fewer releases arrive at COR on weekends, staffing levels are
more-than-proportionally thinner. COR also typically closes
its offices between 10:00 p.m. and 5:00 a.m. and over
holidays, which Appellants allege leads to worse delays
during those periods (Delaware’s Justice of the Peace Courts,
which send releases to COR, remain open 24/7). During
those periods, however, COR supervisors are on call around
the clock to handle any problems that might arise. Appellee
McBride testified that she has never received any complaints
about coverage while COR offices were closed, and there is
no record evidence that over-detentions cluster around
holidays or are otherwise affected by these closures.

       Second, Appellants argue that COR is unresponsive to
inmates and those acting on their behalf. Prisoners cannot
contact COR directly, except by mail. If they want more
immediate communication with COR—and time is of the
essence for an inmate detained past his release date—they
must request that prison staff email COR. Prisoners’ families,
friends, and bail bondsmen can call COR directly, but
generally complain that COR is frequently unhelpful or
indifferent, when it can be reached at all. Outside input
allegedly falls on deaf ears. But inmates and their associates
are the individuals best placed to know that they have been




                              8
over-detained—they have access to information and strong
incentives to monitor COR—and could play an important
oversight function if allowed.

        Indeed, the record shows that when inquiries did reach
COR, they helped spur COR to fix problems. Sandra Dean,
the public defender, noted her practice of routinely contacting
COR about over-detained clients. She stated that additional
pressure, such as threatening to contact a judge or initiate a
contempt proceeding, helped more.           Conversely, Dean
observed that those least able to speak for themselves when
over-detained, like the handicapped or those who did not
speak English, were at greater risk.           Likewise, after
Appellants complained of being over-detained, prison
officials urged them to contact COR because that was the best
way to speed their release. COR’s alleged failure to
communicate potentially deprives COR of an alert system and
allows errors to fester. That said, McBride testified that
family members, courts, and correctional officers are able to
reach her directly with complaints about over-detention and
that she responds to those complaints with an immediate
investigation into the inmate’s situation.

II.    PROCEDURAL BACKGROUND

       Plaintiffs filed their complaint on October 1, 2012. At
the close of discovery, Plaintiffs moved for class certification
and Defendants for summary judgment.

      The District Court’s opinion denied the motion for
class certification and granted summary judgment.
Defendants prevailed in toto. Class certification was denied
on commonality grounds because some members of the
proposed class were over-detained due to delays in the court




                               9
system, rather than delays at COR. The Court found that
there was no “common contention” the truth of which could
“resolve an issue that is central to the validity of each one of
the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011). The Court also found that all
claims against Defendants in their official capacities were
barred by sovereign immunity; it declined to reach the
question of qualified immunity; and it granted summary
judgment on Appellants’ state law claims.

       The Court framed its analysis of the core federal
constitutional claims by using the “more-specific-provision
rule.” Specifically, the Court determined that the rule meant
that any substantive due process claims should be addressed
only under the more specific Eighth Amendment analysis of
cruel and unusual punishment. See Betts v. New Castle Youth
Dev. Ctr., 621 F.3d 249, 261 (3d Cir. 2010). In that Eighth
Amendment analysis, the District Court held that Plaintiffs
failed to demonstrate a genuine dispute of material fact on
two required elements of their claim—deliberate indifference
by Defendants to the risk of over-detentions and a causal
connection between Defendants’ acts and Plaintiffs’ over-
detentions.

       In this respect, the Court found particularly
determinative: 1) press coverage praising defendant Danberg
for his creation of COR and his efforts to fix the over-
detention problem, 2) defendant McBride’s familiarity with
COR procedures and her work to improve them, and 3)
defendant Coupe’s formation of a special unit to speed up
daily bail releases.

      Plaintiffs filed a Rule 59(e) motion to amend the
judgment, which was denied because Plaintiffs simply




                              10
rehashed the arguments posed on summary judgment.
Plaintiffs then appealed all of the federal claims asserted.

III.   STANDARD OF REVIEW9

        On appeal from a grant of summary judgment, the
Court of Appeals’ review is “plenary” and the court should
“apply the same test the district court should have utilized
initially.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)
(citation omitted). Summary judgment should be granted
only when the record shows that “there is no genuine dispute
as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]ll
justifiable inferences are to be drawn in [the nonmovant’s]
favor” but the “mere existence of some evidence in support of
the nonmovant is insufficient to deny a motion for summary
judgment; enough evidence must exist to enable a jury to
reasonably find for the nonmovant on the issue.” Giles, 571
F.3d at 322 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249, 255 (1986)).

       In deciding whether to certify a class under Federal
Rule of Civil Procedure 23, a district court must make
“findings” and factual determinations. In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008).
The burden of proof rests with the movant to “affirmatively

9
  The District Court had jurisdiction over this civil rights
action pursuant to 28 U.S.C. §§ 1331 and 1343 and exercised
supplemental jurisdiction over state law claims pursuant to 28
U.S.C. § 1367. The District Court’s summary judgment
constituted a final decision and this Court has jurisdiction
pursuant to 28 U.S.C. § 1291.




                              11
demonstrate” certifiability by a preponderance of the
evidence. Wal-Mart, 564 U.S. at 350. The District Court’s
denial of class certification is reviewed for abuse of
discretion. Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 259 F.3d 154, 165 (3d Cir. 2001).

IV.   ANALYSIS

A.    Eighth Amendment Legal Standards

        Our standard for analyzing over-detention claims is
well-established. An inmate’s detention after his term of
imprisonment can, under certain circumstances, constitute
cruel and unusual punishment, in violation of the Eighth
Amendment. Montanez v. Thompson, 603 F.3d 243, 250 (3d
Cir. 2010). Continued incarceration beyond that point is
clearly punitive, and in many cases will serve no penological
justification at all. Sample v. Diecks, 885 F.2d 1099, 1108
(3d Cir. 1989). That said, we also recognize that “[t]he
administration of a system of punishment entails an
unavoidable risk of error” and that “[e]limination of the risk
of error in many instances would be either literally impossible
or unfeasible because prohibitively costly.” Id. The Eighth
Amendment does not, and could not, require the elimination
of all such risk of error.

       Thus, we have established a three-part test for over-
detention claims. A plaintiff must show:

      (1) a prison official had knowledge of the prisoner’s
      problem and thus of the risk that unwarranted
      punishment was being, or would be, inflicted; (2) the
      official either failed to act or took only ineffectual
      action under the circumstances, indicating that his




                              12
       response to the problem was a product of deliberate
       indifference to the prisoner’s plight; and (3) a causal
       connection between the official’s response to the
       problem and the unjustified detention.”

Montanez, 603 F.3d at 252.10


10
   Our precedent also describes the test for supervisor liability
under the Eighth Amendment as a four-part test: “the plaintiff
must identify a specific policy or practice that the supervisor
failed to employ and show that: (1) the existing policy or
practice created an unreasonable risk of the Eighth
Amendment injury; (2) the supervisor was aware that the
unreasonable risk was created; (3) the supervisor was
indifferent to that risk; and (4) the injury resulted from the
policy or practice.” Beers-Capitol v. Whetzel, 256 F.3d 120,
134 (3d Cir. 2001). But see Barkes v. First Corr. Med., Inc.,
766 F.3d 307, 341 (3d Cir. 2014) (Hardiman, J., dissenting),
rev'd on other grounds sub nom. Taylor v. Barkes, 135 S. Ct.
2042 (2015) (questioning validity of four-part test). For
purposes of this litigation, the two formulations of the Eighth
Amendment standard are functionally equivalent, each
broadly requiring risk, knowledge, deliberate indifference and
causation. We find the over-detention-specific description of
our standard better structures our analysis in this case. In any
event, because Plaintiffs fail to show deliberate indifference,
as explained herein, they could not survive summary
judgment under either standard.




                               13
       Up to now, our over-detention jurisprudence has
concerned individual plaintiffs challenging decisions specific
to themselves. In Sample v. Diecks, our first decision in this
line of cases, a prison records officer mistakenly determined
that an inmate still had time to serve on another sentence and
authorities therefore refused to release him. 885 F.2d at 1102.
Then came Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993),
which concerned parole officers who initially misinterpreted a
judge’s sentencing order, resulting in a six-month delay in the
inmate’s release while officials conducted an investigation.
Most recently, Montanez v. Thompson likewise involved
various calculations of a particular inmate’s sentence. 603
F.3d at 246-48.

       In contrast, Plaintiffs here allege systemic
shortcomings at COR. The problems are not prisoner-specific
misapplications of the law, but organizational policies and
practices. Nevertheless, the same standard applies, although
it must be applied with sensitivity to the change of context.
In particular, we have noted that the position of the defendant
in an over-detention suit must affect the second prong of our
test: deliberate indifference. “Among the circumstances
relevant to a determination of whether the requisite attitude
was present are the scope of the official’s duties and the role
he or she has played in the everyday life of the prison.”
Sample, 885 F.2d at 1110. An official is less likely to display
deliberate indifference if “there are procedures in place
calling for others to pursue the matter” and more likely to be
deliberately indifferent if given his or her role, a problem




                              14
“will not likely be resolved unless he or she addresses it or
refers it to others[.]” Id.11

       This flexible standard for deliberate indifference,
which foresees suits against officials up and down the
organizational chart of the prison system, anticipates that
over-detention claims may raise structural challenges as well
as individual ones. Indeed, this is the necessary corollary of
our recognition that the “administration of a system of
punishment entails an unavoidable risk of error.” Sample,
885 F.2d at 1108. Operating a prison system is a major
bureaucratic undertaking. That fact compels us to offer
individual prison officials room for imperfection and
accidents. But it also teaches that preventing over-detentions
may require bureaucratic solutions from top management.
Litigation against top administrators, seeking structural
reforms of the agency as a whole, may be the only effective
way to reduce the overall risk of unconstitutional error.
Where appropriate, we must treat the correctional system as a
system.

       Suits against high-level government officials must
satisfy the general requirements for supervisory liability. In

11
   Here, Appellees are the officials tasked with resolving the
alleged problems. Appellants allege that structural features of
COR cause a systemic over-detention problem. Only top
administrators, not line staff processing individual releases,
can increase staffing levels, foster a more open culture of
communication or declare the creation of COR a success or
failure. The problems alleged in this litigation “will not likely
be resolved unless” top administrators like Appellees address
them. Sample, 885 F.2d at 1110.




                               15
particular, supervisors are liable only for their own acts; in
this case, they are liable only if they, “with deliberate
indifference to the consequences, established and maintained
a policy, practice or custom which directly caused [the]
constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting
Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d
Cir. 1989)) (alteration in original). This standard for
supervisory liability largely overlaps with the over-detention
standard—both require a showing of deliberate indifference
and causation—but centers the inquiry around a policy or
practice.

B.    Eighth Amendment Analysis

       We agree with the District Court that Appellants
established a genuine dispute of material fact as to the first
prong of the over-detention standard: knowledge of a risk of
unwarranted punishment. Fundamentally, COR was created
because DDOC was aware of what it believed to be an
unacceptable level of over-detention in Delaware.12
Moreover, there is record evidence that those near to the
correctional system warned Appellees of continuing over-
detention problems post-2008, including the public defender,
Sandra Dean, and the bail bondsperson, Bruny Mercado.
While the record does not allow for the exact calculation of
over-detention levels or year-by-year trends in over-detention,
a jury could reasonably find the overall level of over-
detention to be quite substantial. Indeed, McBride’s own

12
   Whether the pre-2008 system in fact failed to meet
constitutional standards is outside of our purview in this
matter.




                              16
testimony shows an awareness of continuing challenges at
COR: She admitted at her deposition that she has always
perceived a problem with the timely processing of releases,
since the creation of COR. Her efforts to improve COR came
in response to a sense that there was a need for change in the
agency’s operations.

       Appellants fail, however, to show a genuine dispute of
material fact as to the second prong: deliberate indifference.
As the District Court held, the record shows a variety of
efforts by Appellees to improve COR and address the over-
detention problem. For example, not only did McBride
increase staffing levels at COR, she offered uncontradicted
testimony that she did so specifically in response to delays in
processing. Likewise, her efforts to improve the agency’s
training system, to upgrade its technology, and to create
special units to more efficiently handle certain types of
release show, as she testified, that COR leadership was
“always looking at ways to be more efficient.” JA 12.

       These facts weigh heavily against any reasonable
finding of deliberate indifference. In Moore v. Tartler, we
observed that deliberate indifference had been “demonstrated
in those cases where prison officials were put on notice and
then simply refused to investigate a prisoner’s claim of
sentence miscalculation.” 986 F.2d at 686 (citing Alexander
v. Perrill, 916 F.2d 1392, 1398 (9th Cir. 1990) and Haygood
v. Younger, 769 F.2d 1350 (9th Cir. 1985)). Because the
parole board officials’ investigation in Moore constituted
“affirmative steps” to resolve the issue, we could not find
deliberate indifference. Id. at 687. Here, Appellees have also
taken affirmative steps to address over-detentions in the
Delaware system and this makes a finding of deliberate
indifference difficult.




                              17
       But the presence of such affirmative steps is not
necessarily dispositive. A further inquiry, not undertaken by
the District Court, is required in this case. In Moore, the
parole officers’ investigation was targeted to resolve the
inmate’s complaint in full. Although the investigation was
slow, the officials could safely conclude that upon its
completion they would have done all that they could do to
address Moore’s over-detention. Here, it is not self-evident
that the COR reforms were up to the task at hand.
“[I]neffectual action under the circumstances” can also
indicate deliberate indifference. Montanez, 603 F.3d at 252.

       This is not to say that federal courts conduct
independent reviews of the wisdom of prison policy. The
purpose of addressing “ineffectual action” is not to render a
program evaluation. The ultimate subject of inquiry remains
deliberate indifference: a state of mind. We look to see
whether the gap between the officials’ actions or inaction and
the problem they were trying to solve was so large that those
actions display deliberate indifference. Imagine an inmate
who came to the prison infirmary with a cut and with kidney
failure and was given only a bandage. We would have no
trouble concluding that this could constitute deliberate
indifference. Cf. Rouse v. Plantier, 182 F.3d 192, 194-95,
198-99 (3d Cir. 1999) (suggesting that providing diabetic
inmates with only one insulin injection per day and less-than-
daily blood sugar monitoring, when they needed more, can
constitute deliberate indifference).

      By the same token, supervisory efforts to minimize
over-detentions in one manner could, in principle, co-exist
with deliberate indifference to a festering over-detention
problem rooted in different agency practices or policies.
Given the allegations of rampant over-detention—affecting as




                             18
many as one-third of inmates—a jury could might reasonably
ponder whether something along these lines was occurring.

        But an argument of this sort requires evidence to
survive summary judgment. While Appellants may have
shown a genuine dispute whether over-detentions remain a
large-scale problem in the Delaware correctional system,
there is no genuine dispute regarding whether Appellees have
tried to address the over-detention problem. Viewing the
facts in the light most favorable to Appellants, we could
conclude that over-detentions are rampant in Delaware and
that correctional officials are trying, albeit without great
success, to tackle that challenge. So far, this is not deliberate
indifference. Appellants need more to rescue their claim.
They would need to show that Appellees’ efforts to improve
COR so obviously miss the mark that pursuing those efforts
manifests disregard for the real problem and thereby amounts
to deliberate indifference. Such evidence is absent from the
record.

        On summary judgment, the nonmoving party must
affirmatively “show where in the record there exists a genuine
dispute over a material fact.” Doe v. Abington Friends Sch.,
480 F.3d 252, 256 (3d Cir. 2007). “[S]peculation and
conjecture may not defeat a motion for summary judgment[.]”
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199,
228 (3d Cir. 2009) (citing Lexington Ins. Co. v. W. Pa. Hosp.,
423 F.3d 318, 332-33 (3d Cir. 2005)). But speculation is all
that Appellants can put forward to show that the DDOC
officials were deliberately indifferent notwithstanding their
efforts to improve the release process. The record offers no
reason to believe that Appellees’ chosen interventions were
callously misguided.




                               19
        For example, Appellants offer an affidavit from a
former COR employee stating that the computerized DACS
system increased delay. Whether DACS was a successful
technological upgrade is not a dispute sufficient to go to trial.
It does not show a dispute that computerization was
misguided from the start. Moreover, McBride testified that
DACS has helped COR be more efficient and has sped up the
release process. She admitted that there were issues with the
system that needed to be resolved, but did not indicate that
COR would leave those issues unaddressed. DACS may have
been “ineffective” in the sense that it did not immediately
reduce over-detentions—but that is not the test. Rather,
Appellants must show that COR’s ineffectiveness amounted
to deliberate indifference.

       Likewise, it may be the case that COR needs more
staff. There is evidence to that effect, sufficient to create a
factual dispute. But the record also shows that McBride
observed a need for more staff, worked with other officials to
calculate how many more staff were required, and secured
those positions from more senior authorities within state
government. Separately, COR also increased the number of
casual/seasonal staff used to pull and re-file records, again in
response to a perceived need and a review of agency
operations. To show deliberate indifference on the staffing
issue, Appellants would need evidence that would allow a
jury to conclude, for example, that COR knew its staffing
increases would be insufficient or that after it realized it still
needed more staff after the first round of hires, it did nothing
in response. No such evidence is in this record.

       With regards to COR’s unresponsiveness to outside
communications, a different sort of evidence would be needed
to establish deliberate indifference. Appellants demonstrated




                               20
a dispute whether COR was open to inquiries from inmates
and whether increased openness would help reduce over-
detentions. As already noted, there is evidence to suggest that
inmates were urged to contact COR to expedite their release
and that where contact was made, such as by a public
defender, it really did spur action. But the record does not
show that COR took any particular action to improve this
problem. Although this may be more indicative of deliberate
indifference, what is absent here is any evidence showing that
COR should have addressed this problem with particular
alacrity as opposed to any other. Had the crux of the
evidence presented to the District Court been that closed
channels of communication caused particularly large numbers
of over-detentions; that an alternative system had been
presented to COR or was a best practice they should have
known to adopt; or that changes to COR’s communications
policy would have been easier or more efficacious than
COR’s other reform efforts, then Appellants may have been
in a different posture regarding summary judgment.13

       Nor could a reasonable jury infer deliberate
indifference from the simple fact that over-detentions
increased in this period (if the jury found that they did).
There are surely many variables that affect the over-detention

13
    Even less indicative of deliberate indifference is
Appellants’ assertion that COR failed to track certain
performance metrics, such as the number of lost files or the
number of inmate letters received. No record evidence is put
forward that could allow a finding that these metrics should
have been used rather than the alternative forms of tracking
and oversight employed at COR, much less that Appellees
were deliberately indifferent for failing to use them.




                              21
problem. In particular, there is substantial and uncontested
record evidence that many over-detentions originate in the
court system rather than at COR. It is entirely plausible that
the overall increase in over-detentions stemmed from changes
outside COR and that the reform efforts at COR, though
effective, were swamped by external forces. To survive
summary judgment, Appellants need more than speculation
connecting any increase in over-detentions with the COR
policies they deem ineffective.

        A comparison with a similar, successful over-detention
suit is instructive. In Barnes v. District of Columbia, 793 F.
Supp. 2d 260 (D.D.C. 2011), the Court was presented with a
far richer evidentiary picture—and plaintiffs were able not
only to avoid summary judgment, but to win summary
judgment themselves on certain of their claims. There, as
here, the correctional officials had made efforts to reduce
over-detentions and there, as here, plaintiffs argued that those
efforts were ineffectual. But plaintiffs were able to carry their
burden. They hired a statistical expert to sift through
correctional records and provide reliable annual estimates of
how many people had been over-detained. Id. at 269-70.
What is more, they were able to estimate how many of those
over-detentions were attributable to specific policies. Id. at
271. This allowed the Court to determine that the District of
Columbia’s early efforts to reduce over-detentions were
utterly ineffectual, allowing a grant of summary judgment for
plaintiffs, and that the District’s later efforts were quite
effective, allowing a grant of summary judgment for
defendants (whether the District’s efforts during an
intermediate period showed deliberate indifference required
factfinding). Id. at 280-81. Plaintiffs in Barnes could also
demonstrate precisely how long processing a release should




                               22
take and how much longer it often took in practice. Id. at
278-79. This sort of data allowed plaintiffs to show
deliberate indifference to over-detentions, even in the face of
affirmative steps to improve matters. Appellants have not
shown deliberate indifference here. We therefore affirm the
District Court’s grant of summary judgment for Appellees on
all Eighth Amendment claims.

C.     Fourteenth Amendment Analysis

       For the same reasons, we affirm the District Court’s
grant of summary judgment on all Fourteenth Amendment
substantive due process claims. The District Court dismissed
Plaintiffs’ Fourteenth Amendment claims under the “more-
specific-provision rule.”     That rule holds that “if a
constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the
claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due
process.” United States v. Lanier, 520 U.S. 259, 272 n.7
(1997); see also Betts, 621 F.3d at 261. The District Court
held that because the Third Circuit addresses over-detention
under the rubric of the Eighth Amendment, Plaintiffs could
not bring parallel claims under the Fourteenth Amendment’s
protection of substantive due process.

        Appellants and amicus argue that the more-specific-
provision rule does not apply to all claims, because some
plaintiffs were pretrial detainees, who are not protected by the
Eighth Amendment.14 Our Court has always analyzed over-

14
   They also argue that Plaintiffs’ claims arose under a
procedural due process framework rather than a substantive
due process framework. This argument is waived. Plaintiffs’




                              23
detention claims under the Eighth Amendment, unlike some
other courts. See Barnes, 793 F. Supp. 2d at 274-75
(“Overdetentions potentially violate the substantive
component of the Due Process Clause. . . .”). But we have
applied the Eighth Amendment because each of our over-
detention cases involved convicted and sentenced inmates.
Montanez, 603 F.3d 243; Moore, 986 F.2d 682; Sample, 885
F.2d 1099.

       Our precedent is clear that while the detention of
sentenced inmates is governed by the Eighth Amendment, the
treatment of pretrial detainees is governed by the Due Process
Clause. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due
process requires that a pretrial detainee not be punished. A
sentenced inmate, on the other hand, may be punished,
although that punishment may not be ‘cruel and unusual’
under the Eighth Amendment.”); Boring v. Kozakiewicz, 833
F.2d 468, 471 (3d Cir. 1987) (“Pretrial detainees are not
within the ambit of the Eighth Amendment but are entitled to
the protections of the Due Process clause.”); Hubbard v.
Taylor, 399 F.3d 150, 164-67 (3d Cir. 2005) (same).

       For pretrial detainees, therefore, there is no applicable
provision more specific than the Due Process Clause and the
more-specific-provision rule does not apply. A separate due
process analysis is required.

      The protections of the Eighth Amendment and Due
Process Clauses are sometimes, but not always, the same.
Hubbard, 399 F.3d at 164-67. We need not delve into the

arguments below expressly identified their claims as being for
substantive due process.




                              24
differences between those two analyses in this context,
however. This is a suit against supervisory officials, for the
creation of policies and practices. Supervisory policy-and-
practice liability requires deliberate indifference. A.M. ex rel.
J.M.K., 372 F.3d at 586. Thus, for the same reasons as in our
Eighth Amendment analysis, we conclude that there is no
genuine dispute of material fact as to deliberate indifference
under the Fourteenth Amendment. We will affirm.15




15
   Having affirmed the District Court’s grants of summary
judgment on the merits, we need not reach the other issues in
the Court’s opinion: qualified immunity, sovereign immunity,
and class certification. We also need not reach the causation
prong of the Eighth Amendment analysis.




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