                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2200
                                       ___________

                       TABU N. MCCLURE, a/k/a Tabu Phillips,
                                           Appellant

                                             v.

COMMISSIONER JEFFREY T. HASTE; BOARD OF DAUPHIN COUNTY PRISON;
   DEPUTY WARDEN D. W. CARROLL; LT. HOSTETTER; SGT. R. ADAMS
               ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1:14-cv-02249)
                       District Judge: Honorable Sylvia H. Rambo
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 1, 2020

                Before: KRAUSE, MATEY, and ROTH, Circuit Judges

                               (Opinion filed: July 8, 2020)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Tabu McClure, a prisoner proceeding pro se, appeals the District Court’s grant of

summary judgment in favor of two of the Defendants.1 For the reasons detailed below,

we will vacate and remand.

                                              I.

         McClure brought this action under 42 U.S.C. § 1983, asserting, as relevant, a

Fourteenth Amendment due-process claim against Lt. Hostetter and Deputy Warden

Carroll.2 The District Court construed the claim as an Eighth Amendment claim after

concluding that McClure, as a parole violator, was the equivalent of “a convicted person

punished by incarceration,” rather than a pretrial detainee.3 McClure was confined in

Dauphin County Prison during the relevant events, but is now confined elsewhere.

         McClure alleged the following set of facts.4 On February 8, 2013, around 11:00

p.m., two guards told McClure to turn the light on in his cell. When he did not do so (he


1
 We note that the Defendants also argued below that McClure had failed to exhaust his
administrative remedies. The District Court disagreed, concluding that he had properly
exhausted. The Defendants have not challenged that holding on appeal.
2
  McClure’s initial complaint named nine Defendants. (Dkt. No. 1). After the District
Court granted the Defendants’ motion to dismiss, (Dkt. Nos. 27, 28), McClure filed an
amended complaint, naming five Defendants, (Dkt. No. 29). The District Court, sua
sponte, dismissed the claims against three of the Defendants. (Dkt. No. 30). Later, the
District Court granted summary judgment in favor of Lt. Hostetter and Deputy Warden
Carroll. (Dkt. Nos. 99-101). On appeal, McClure challenges only the summary
judgment decision. (See Appellant’s Br.).
3
    McClure has not challenged this determination on appeal.
4
    These facts are from both the amended complaint, which was sworn under the penalty
                                             2
claims the light was broke), he was written up and placed in administrative segregation.

The segregation cell was very cold and he had only a t-shirt, jumpsuit bottom, and

slippers. His requests for sheets, blankets, and a pillow went unanswered. After a couple

of hours, he ripped the stuffing out of his mattress and crawled inside the mattress to stay

warm. Around 2:00 a.m., a guard wrote him up for destroying the mattress. The write-

up claimed that McClure used the stuffing from the mattress to cover up his window,

which is prohibited. McClure denied doing so. McClure was then taken to a “strip cell”

and put in a restraint chair until morning.

       Beginning the morning of February 9, 2013, and lasting through September 3,

2013, McClure was subjected to a mattress restriction, pursuant to which his mattress was

taken away during the daytime, and then returned each night. The mattress he was given

each night was the one from which he had ripped the stuffing. His cell contained a

concrete slab upon which he could lay the mattress at night. McClure described the

mattress in his deposition:

       It was basically a shell. It wasn’t really a mattress at that point. I would
       just call it like a shell of a mattress, that is how I described it, because the
       insulation inside of it didn’t exist anymore. . . .


of perjury, and from McClure’s deposition. (Dkt. Nos. 29, 89-2). The District Court
stated that McClure did not follow local rules regarding the filing of a statement of
material facts, but instead “filed his own statement of material facts without regard to that
of Defendants.” (Dkt. No. 99 at 8 n.3). However, based on our review, McClure’s
“Statement of Disputed Factual Issues,” contained numbered paragraphs which directly
corresponded to the numbered paragraph in the Defendants’ “Statement of Material
Facts.” (Dkt. Nos. 89, 95).
                                               3
       I would use my paperwork and stuff to create like a layer, keep it off the
       concrete, so it wouldn’t be cold, so it wouldn’t seep through the concrete.
       So I would use paper underneath or folders or books or whatever I had. I
       had a blanket also and I was given a full jumpsuit, so I would use some of
       those things.

(Dkt. No. 89-2 at 29:22-30:1; 30:15-21).

       McClure had a preexisting back problem, which was exacerbated by the mattress

restriction—both the nighttime issues with the defective mattress, and also not having a

mattress to sit or lie on during the day. After a couple of weeks, he began to experience a

substantial amount of pain in his lower back, along with sciatica and tingling and

numbness in his legs. He signed up for medical treatment on several occasions,

beginning around March 20, 2013, but was only given Motrin for 5-7 days each time.5

The mattress restriction lasted over 200 days. Defendants asserted that the restriction was

extended repeatedly because of McClure’s behavior—such as trying to hold onto the

mattress in the morning and being verbally abusive when it was taken away from him.

       The mattress restriction was put in place by an order issued by Lt. Hostetter on

behalf of Deputy Warden Carroll. McClure alleged that: “On numerous occasions I

spoke to Lt. Hostetter about the prolonged mattress deprivation and the harm it was

causing me.” (Dkt. No. 29 at 60). He also alleged that he spoke to Carroll about the

“mattress situation,” but that Carroll said he did not have time to deal with it. (Id.).

McClure also testified in his deposition as to these interactions with Lt. Hostetter and

5
 At one point, McClure was cut off from receiving Motrin because he was allegedly
“hoarding” it. He denied doing so.
                                          4
Deputy Warden Carroll. (Dkt. No. 89-2 at 27-28). The mattress restriction finally ended

when McClure left Dauphin County Prison.

       The District Court granted summary judgment in favor of Lt. Hostetter and

Deputy Warden Carroll. McClure timely appealed.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s grant of summary judgment for the Defendants. See Blunt v.

Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).

       Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions” of the record

which demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the nonmoving

party then must present specific facts that show there is a genuine issue for trial. Fed. R.

Civ. P. 56(c)(1), (e)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

                                             III.

       Summary judgment should not have been granted in favor of Lt. Hostetter and

Deputy Warden Carroll. For the reasons explained below, we will vacate the grant of

summary judgment and remand for further proceedings.

                                              5
       The Eighth Amendment prohibits deprivations suffered during incarceration “that

constitute an ‘unnecessary and wanton infliction of pain,’ including ‘those that are totally

without penological justification.’” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368,

372 (3d Cir. 2019) (quoting Wilson v. Seiter, 501 U.S. 294, 297, 308 (1991)). A

successful Eight Amendment claim based on a prisoner’s conditions of confinement has

two components. “First, ‘the deprivation alleged must be, objectively, sufficiently

serious,’ resulting in ‘the denial of the minimal civilized measure of life’s necessities.’”

Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). This is a totality-of-the-

circumstances analysis. “Conditions . . . alone or in combination[] may deprive inmates

of the minimal civilized measure of life’s necessities,” and “[s]ome conditions of

confinement may establish an Eighth Amendment violation ‘in combination’ when each

would not do so alone, but only when they have a mutually enforcing effect that produces

the deprivation of a single, identifiable human need such as food, warmth, or exercise.”

Id. at 373-74 (quoting Wilson, 501 U.S. at 304, and Rhodes v. Chapman, 452 U.S. 337,

347 (1981)). This Court has noted that “[s]leep is critical to human existence, and

conditions that prevent sleep have been held to violate the Eighth Amendment.’” Id.

(quoting Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) (alteration in original)); see

also Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999) (“[S]leep undoubtedly counts

as one of life’s basic needs.”).




                                              6
       Second, a successful conditions-of-confinement claim requires a showing that a

prison official has a “sufficiently culpable state of mind,” i.e., deliberate indifference to

the inmate’s health or safety. Id. (citing Farmer, 511 U.S. at 834, and Wilson, 501 U.S. at

302-03). “[T]he official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer, 511 U.S. at 837.

       We will address the deliberate-indifference requirement first. The District Court

concluded that “McClure has not demonstrated that Defendants knew or were aware of a

risk to his health or safety by imposing the daytime mattress restriction.” (Dkt. No. 99 at

29). To the contrary, we conclude that McClure created a genuine issue of fact in this

regard, given his sworn allegations in his amended complaint, and his deposition

testimony, that he spoke to Lt. Hostetter on numerous occasions about the harm the

mattress restriction was causing him and also tried to talk to Deputy Warden Carroll, who

blew him off.6 Accordingly, we conclude that McClure created a triable issue as to the

Defendants’ deliberate indifference to the harm he suffered as a result of the mattress

restriction.

       With regard to the mattress restriction, although the District Court correctly noted

that “[t]he length of the inmate’s exposure to the alleged unconstitutional conditions and

6
 Although the Defendants assert that McClure did not in any meaningful way cite to the
evidentiary record in his “Statement of Disputed Factual Issues,” McClure did in fact
specifically cite the relevant page of his deposition. (Dkt. No. 95 at ¶ 30) (citing Dkt. No.
89-2 (McClure’s Depo.) at 27).
                                              7
the totality of the circumstances must be considered when making a determination as to

whether a condition amounts to cruel and unusual punishment,” (Dkt. No. 99 at 27), the

District Court went on to state that “[t]he Third Circuit has concluded that an inmate is

not subject to cruel and unusual punishment when he is deprived of a mattress during the

day and has the mattress returned to him at night,” (id. at 28). The District Court stated

this latter proposition as a matter of law, suggesting it applied regardless of important

factors, such as the length of the deprivation and the totality of the circumstances.

       Indeed, the District Court relied exclusively on cases in which inmates were

subjected to daytime mattress restrictions for significantly shorter periods of time than the

200-plus days at issue here.7 In their appellate brief, the Defendants rely on the same

cases and add one more, where the restriction lasted a week. See Jackson v. Lencovich,

2005 U.S. Dist. LEXIS 47182 (M.D. Pa. June 6, 2005). There was no indication in any

of these cases that the inmates were given a defective mattress in the evenings, or that

they had pre-existing back problems that were exacerbated by the mattress restriction.

       Defendants also cited several cases in their appellate brief in which courts held

that complete deprivations of mattresses for short periods of time did not violate the



7
 See Anderson v. Warden of Berks Cty. Prison, 602 F. App’x 892 (3d Cir. 2015) (per
curiam) (restriction lasted less than a month); Alex v. Stalder, 225 F. App’x 313 (5th Cir.
2007) (51 days); Mestre v. Wagner, 2012 WL 300724 (E.D. Pa. Jan. 31, 2012) (13 days);
Gannaway v. Berks Cty. Prison, 2011 WL 1196905 (E.D. Pa. Mar. 31, 2011) (one stretch
of 15 days, one stretch of 22 days); Andrews v. Vance, 2005 WL 3307334 (M.D. Pa.
Dec. 6, 2005) (two days).
                                              8
Eighth Amendment.8 To a degree, these cases are more on point, given that McClure

alleged the mattress he received each night “wasn’t really a mattress at that point,” but,

rather, was a “like shell of a mattress.” However, these cases do not help the Defendants

as McClure’s deprivation of a functional mattress did not last a few days; it lasted over

200 days. We conclude that McClure adequately presented a claim that the mattress

restriction was “objectively, sufficiently serious, resulting in the denial of the minimal

civilized measure of life’s necessities,” based on the totality of the circumstances here—a

prisoner with pre-existing back problems being subjected, for a period in excess of 200

days, to the effective deprivation of a mattress at night, and the complete deprivation of a

mattress during the day, resulting in substantial pain in his lower back, sciatica, and

tingling and numbness in his legs.

       However, the Defendants resurrect another argument on appeal—one the District

Court did not reach—which we must address. The Defendants argue that “whatever

adversity was occasioned by the [mattress] restriction, [Defendants] cannot be held liable

for it, as [McClure] clearly brought it upon himself.” Essentially, the Defendants’

argument is that McClure initially found himself with a defective mattress through his

8
  See Stephens v. Cottey, 145 F. App’x 179 (7th Cir. 2005) (deprivation of mattress for
three days where inmate slept on steel bed frame did not violate Eighth Amendment);
Milhouse v. Gee, 2011 WL 3627414 (M.D. Pa. Aug. 17, 2011) (“short period” of days);
Castro v. Chesney, 1998 WL 767467 (E.D. Pa. Nov. 3, 1998) (two days); Collins v.
Klotz, 1994 WL 371479 (E.D. Pa. July 1, 1994) (holding that short delays in replacing
beds and mattresses destroyed by an inmate did not constitute Eighth Amendment
violations because prison officials could not be expected to “instantaneously” replace
property he destroyed; one of the mattress was ripped open to hide weapons inside).
                                             9
own doing, i.e., ripping the stuffing out of his mattress, and that he prolonged his time

with the defective mattress by committing infractions, such as often refusing to relinquish

the mattress in the morning when officers tried to take it away from him and being

verbally abusive to them as they took it. The Defendants also point to a litany of

McClure’s unrelated misconduct: flooding his cell once by flushing his toilet repeatedly,

blocking his cell window once with a towel, impermissibly shaving his head twice,

making a “throat-cutting” gesture to an officer, and attempting to strike an officer and

throwing a newspaper at the officer. McClure was told by staff members that if he

behaved himself, the mattress restriction would be lifted.

       Thus, the Defendants’ position, very literally, is that McClure made his own bed

and then had to lie in it. More precisely put, the Defendants contend that, even assuming

the mattress restriction otherwise would have constituted an Eighth Amendment

violation, it did not here because McClure himself destroyed the mattress and engaged in

related misconduct (refusing to relinquish the mattress come morning and verbally

abusing officers for taking it), and unrelated misconduct of the various kinds described

above. In the Defendants’ view, there could be no constitutional foul because McClure,

much like an individual found to be in civil contempt, held the keys to release from

punishment in his own hands. All McClure had to do was to shape up, the Defendants

assert, and he would have been given a functional mattress to use day and night.




                                             10
       In support of this position the Defendants rely upon a number of cases where

inmates were deprived of basic needs such as food or exercise as a result of persistently

disrespecting prison rules. However, in the cases upon which the Defendants rely, the

inmates’ rule violations made provision of the deprived needs difficult or dangerous.

Indeed, most of the cases the Defendants rely upon involve prisoners refusing to comply

with safety protocol required to receive meals.9 These cases are clearly distinguishable.

Most of McClure’s misconduct was completely unrelated to the mattress restriction.

Providing McClure with a functional mattress would not have placed correctional officers

or other inmates at risk. As to the unrelated misconduct, the record reflects that McClure

was regularly disciplined. He was placed in administrative segregation for periods of

time, and was also required to wear handcuffs and shackles at various times whenever out

of his cell. With regard to his misconduct that did relate to the mattress, McClure

destroyed one mattress, not multiple, and claims to have done so for a specific reason—to

crawl inside and stay warm when his requests for blankets went unanswered. We do not

condone McClure’s destruction of prison property, but using his destruction of one

9
  See Freeman v. Berge, 441 F.3d 543 (7th Cir. 2006) (in maximum security prison where
inmates were served meals in their cells, the plaintiff was denied many meals over a two-
year period because he refused to comply with requirement that, when meals were
served, inmates stand in the middle of their cell, with the light on, wearing certain
clothing); Rodriguez v. Briley, 403 F.3d 952 (7th Cir. 2005) (the plaintiff was denied
between 300 and 350 meals over an 18-month period because he refused to place certain
required belongings in a designated box in his cell before leaving to go to the cafeteria);
Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998) (the plaintiff was denied 50 meals over a
five-month period when he refused to kneel with his hands behind his back as meals were
being served in cells during lockdown periods as a result of gang-related violence).
                                             11
mattress, under these circumstances, as grounds for depriving him of a functional

mattress for an extended period of time was inappropriate under the Eighth Amendment.

Cf. Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (“There is a fundamental

difference between depriving a prisoner of privileges he may enjoy and depriving him of

the basic necessities of human existence. . . . The duration and conditions of [the

deprivation] cannot be ignored in deciding whether [the deprivation] meets constitutional

standards.”) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)), superseded by statute

on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000).

Furthermore, the fact that McClure desperately tried to hold on to the only mattress he

had, come daytime, to avoid more time lying directly on a concrete slab did not justify a

continuing violation of his Eighth Amendment rights in these circumstances.

       The Defendants also cite Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001), where

the plaintiff was ultimately deprived of yard privileges for one year, dispensed in 90-day

increments tied to four infractions: beating a guard to the point of hospitalization; setting

a fire which produced so much smoke that some prisoners had to be evacuated; spitting in

the face of a guard who tried to restrain him after he assaulted another guard; and

throwing a bottle of bodily fluids in a medical technician’s face. All of these infractions

occurred outside the inmate’s cell. Pearson too is distinguishable. The plaintiff in

Pearson lost yard privileges because his misconduct demonstrated that letting him into

the yard put prison officials and other inmates at risk. Here, the Defendants were not

                                             12
neutralizing a known danger by depriving McClure of a functional mattress over the

course of more than 200 days. Again, the dangers created by McClure’s unrelated

misconduct were addressed by placing him in administrative segregation. This case

would be similar to a situation in which, instead of a mattress, the Defendants arbitrarily

chose meals to withhold, told McClure he would receive an insufficient number of meals

if he did not improve his wholly unrelated misconduct, and then used his displeasure over

the deprivation of the meals to deprive him of still more meals.10 In short, the Defendants

have pointed to no legitimate penological reason for the mattress restriction, and we

reject the Defendants’ argument that McClure’s actions justified the restriction.

       Finally, the Defendants argue that they are entitled to qualified immunity because,

even if there was an Eighth Amendment violation, the right at play was not clearly

established. “Qualified immunity shields government officials from civil damages

liability unless the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658,


10
   The Defendants also contend that the mattress restriction was justified as a security
measure because McClure had a history of using objects, such as mattress stuffing, to
block the window on his cell door. However, the Defendants acknowledge that McClure
denies ever doing so with the stuffing from the mattress in question. To combat this
disputed issue of fact, the Defendants unimpressively assert that “it is obvious that the
stuffing could be used for that purpose by an inmate with a propensity for doing so.”
(Appellees’ Br. at 16) (emphasis added). We are unpersuaded by this justification for the
long running mattress restriction as the Defendants have fallen well short of showing that
this was a pervasive issue with McClure, let alone to a degree that would necessitate
depriving him of a functional mattress for over 200 days.

                                               13
664 (2012) (citation omitted). The contours of a clearly established right must be

“sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001). Clearly established does

not mean that “the very action in question has previously been held unlawful.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002). Indeed, “[t]o prevail against a claim of qualified

immunity, the plaintiff need not produce ‘a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate.’” Thomas v.

Tice, 948 F.3d 133, 141 (3d Cir. 2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741,

(2011)). “[T]he salient question . . . is whether the state of the law’ at the time of an

incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was

unconstitutional.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam) (quoting

Hope, 536 U.S. at 741). We conclude that, at the time the mattress restriction was in

effect, it was clearly established that an inmate could not be effectively deprived a

functional mattress for over 200 days, for no legitimate penological reason, particularly

where the deprivation caused the exacerbation of his pre-existing back problems. See

Mammana, 934 F.3d at 371-74;11 cf. Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d

754, 757 (3d Cir. 1979).

       For these reasons, we will vacate the judgment of the District Court and will

remand for further proceedings.

11
  Although Mammana was decided after the events at issue, it broke no new ground and
relied upon a considerable amount of well-established case law.
                                           14
