     Case: 13-31289   Document: 00512874075     Page: 1   Date Filed: 12/17/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                           United States Court of Appeals
                                                    Fifth Circuit

                                                                         FILED
                                                                    December 17, 2014
                                 No. 13-31289                          Lyle W. Cayce
                                                                            Clerk

ROBERT KING WILKERSON; ALBERT WOODFOX; VICTORY WALLACE;
BARBARA WALLACE MARSHALL; LORRAINA WALLACE ANDERSON;
JUSTINA WALLACE WILLIAMS,

             Plaintiffs - Appellees

v.

JERRY GOODWIN, Warden, David Wade Correctional Center, in his official
and individual capacity; JAMES ARNOLD, Deputy Warden of Security,
David Wade Correctional Center, in his official and individual capacities;
LONNIE NAIL, Lieutenant Colonel, David Wade Correctional Center, in his
official and individual capacities; MARK HUNTER, Classification Officer,
David Wade Correctional Center, in his official and individual capacities;
HOWARD PRINCE, Warden, Elayn Hunt Correctional Center, in his official
and individual capacities; GREG MCKEY, Assistant Warden of Security,
Elayn Hunt Correctional Center, in his official and individual capacities;
BETTY JOHNSON, Lieutenant Colonel, Elayn Hunt Correctional Center, in
her official and individual capacities; KEVIN DURBIN, Lieutenant Colonel,
Elayn Hunt Correctional Center, in his official and individual capacities;
JEFFREY GLADNEY, Classification Officer, Elayn Hunt Correctional
Center, in his official and individual capacities; CHRIS EVANS,

             Defendants - Appellants



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before KING, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
    Case: 13-31289    Document: 00512874075     Page: 2   Date Filed: 12/17/2014



                                 No. 13-31289


      Plaintiff-Appellee Albert Woodfox asserts a Fourteenth Amendment
procedural due process claim against various prison officials at the David Wade
Correctional Facility (“Wade”) in Louisiana, arising out of his lengthy and
continuing incarceration in solitary confinement. The district court denied the
defendant prison officials’ motion for summary judgment based on qualified
immunity. We affirm.
                     I. Factual and Procedural Background
      Plaintiff Albert Woodfox asserts that his solitary confinement, which has
now lasted nearly thirty-nine years, persists indefinitely without justification
and without adequate procedural protections, in violation of the constitutional
guarantee of due process. Woodfox and his previous co-plaintiff, Herman
Wallace, were originally placed in closed-cell restriction (“CCR”), also referred
to as “extended lockdown,” in the Louisiana State Penitentiary at Angola
(“LSP”) in 1972 after they were suspected of the murder of corrections officer
Brent Miller, a crime for which they were subsequently convicted. With the
exception of a three-year transfer to a parish jail and a brief period in which
he was housed in a dormitory setting at LSP, Woodfox has been held
continually in CCR. He was transferred to CCR at Wade in November 2010,
where he continues to be held.
      The district court found, and the record supports, that CCR at both LSP
and Wade is the effective equivalent of solitary confinement. The district court
described the conditions in CCR as follows:
      Extended lockdown, also known as closed cell restrictions or
      administrative segregation, is a form of incarceration at LSP,
      Hunt, and Wade that is similar to solitary confinement. The
      prisoners thereto assigned remain alone in cells approximately 23
      hours each day. During the other hour, a prisoner may shower and

                                       2
     Case: 13-31289      Document: 00512874075        Page: 3     Date Filed: 12/17/2014



                                     No. 13-31289


      walk along the tier in which his cell is located. Three times a week,
      the prisoner may use this hour to exercise alone in a fenced yard,
      if the weather permits. The prisoners in extended lockdown also
      face additional restrictions on privileges generally available to
      inmates such as personal property, reading materials, access to
      legal resources, work, and visitation rights. In contrast, inmates
      in the general prison population live in a dormitory setting where
      they can interact with one another, attend religious ceremonies
      and take advantage of educational opportunities, training, and
      other privileges denied to those in extended lockdown.
Wilkerson v. Stalder (Wilkerson II), No. 3:00-CV-304, 2013 WL 6665452, at *2
n.5 (M.D. La. Dec. 17, 2013) (order denying summary judgment). The inmates
in CCR appear before a review board every ninety days. Woodfox asserts that
he receives inadequate “sham” reviews before the board. The district court
reviewed the evidence submitted regarding the review boards and concluded
that “the Plaintiffs’ placement in CCR was and remains indefinite.” Id. at *9.
       When the summary judgment motion was decided in the district court
and briefed in this court, Herman Wallace’s due process claim against prison
officials at the Elayn Hunt Correctional Facility (“Hunt”) was still pending,
asserted by his family after his death in October 2013. 1 Wallace was held in
CCR at LSP and Hunt for over forty years. After oral argument, counsel
informed us that Wallace’s claims against the Hunt officials have now been
settled and dismissed, and thus are no longer at issue in this appeal.
      The underlying litigation has a lengthy procedural history, which we
briefly summarize to give the necessary context to the current appeal.
Plaintiffs originally filed this § 1983 action against various LSP officials and



      1 Wallace’s murder conviction was overturned by the district court on a habeas motion
in October 2013, and he was released. He died three days later of liver cancer.
                                            3
     Case: 13-31289       Document: 00512874075         Page: 4    Date Filed: 12/17/2014



                                      No. 13-31289


the Louisiana Secretary of Corrections (collectively “LSP Defendants”) in 2000,
when Woodfox and Wallace had each been held in solitary confinement for over
twenty years. 2 They asserted that the LSP Defendants violated their First,
Eighth, and Fourteenth Amendment rights by keeping them in such prolonged
solitary confinement. Plaintiffs sought compensatory and punitive damages,
as well as an injunction ordering that they be removed from CCR and housed
with the general prison population.              The district court denied the LSP
Defendants’ Rule 12(b)(6) motion to dismiss the due process claims based on
qualified immunity. On appeal, this court affirmed the denial of the motion to
dismiss. Wilkerson v. Stalder (Wilkerson I), 329 F.3d 431, 436 (5th Cir. 2003).
The LSP Defendants subsequently filed for summary judgment on the basis of
qualified immunity, arguing that the Plaintiffs’ placement in CCR was an
initial security classification that implicated no due process rights. The district
court denied that motion, holding that genuine issues of material fact
precluded summary judgment and, alternatively, that the extraordinary
duration of the solitary confinement gave rise to a protected liberty interest.
Wilkerson v. Stalder, No. 3:00-CV-304 (M.D. La. Feb. 1, 2005) (report and
recommendation of the magistrate judge, adopted by the district court on
March 30, 2005). The LSP Defendants did not appeal that ruling.
       Woodfox was transferred to Wade in November 2010 and was
immediately placed in a newly-created CCR unit, where he has remained ever



       2 A third plaintiff, Robert King Wilkerson, was placed in CCR after he was transferred
to LSP in 1973, after he was accused and subsequently convicted of killing another inmate.
He spent nearly twenty-eight years in solitary confinement at LSP. Wilkerson’s murder
conviction was subsequently overturned, after which he pled to a lesser charge and was
released from prison in 2001. His claims are still pending in the district court against the
LSP Defendants, but are not at issue in this appeal.
                                             4
     Case: 13-31289      Document: 00512874075        Page: 5     Date Filed: 12/17/2014



                                     No. 13-31289


since. In 2013, Plaintiffs obtained leave to file a Fourth Amended Complaint,
to add the defendants at Wade and Hunt. Woodfox named five Wade officials
as defendants, including the Warden, Assistant Warden, and other prison
officials he asserts have authority over his placement or continued detention
in CCR (collectively “Wade Defendants”). 3 The newly added defendants filed
a motion for summary judgment on the basis of qualified immunity.
      The district court denied summary judgment to the Wade Defendants on
two grounds. First, it held that the Plaintiffs’ summary judgment evidence
raised genuine issues of material fact regarding whether their placement in
CCR was an initial security classification or a punitive measure. Wilkerson II,
2013 WL 6665452, at *7-8. In support of its holding, the court noted that
Woodfox produced evidence undercutting the Wade Defendants’ arguments
that they made an initial independent decision that Woodfox should be housed
in CCR upon his 2010 transfer. Plaintiffs produced evidence showing that
there was no CCR tier at Wade prior to Woodfox’s transfer, and that at the
time of the transfer, no official ever had any intention to house Woodfox
anywhere other than at CCR. Id. at *7. Further, the district court agreed that
the Plaintiffs produced evidence questioning whether “an independent and
sincere review of their records, age, and infirmity would lead a review board to
find that they, like gang members or other dangerous inmates, should be
housed in isolation,” which suggested that Woodfox’s placement “was not solely
due to an independent initial classification.” Id. The court also acknowledged
the Plaintiffs’ argument that the Wade Defendants, “having the benefit of



      3 On appeal, the parties, including the Defendants-Appellants, treat the Wade
Defendants collectively, and make no argument specific to any of the individual defendants.
                                            5
    Case: 13-31289     Document: 00512874075         Page: 6   Date Filed: 12/17/2014



                                  No. 13-31289


pending litigation to inform what they reflect in their record, had every
advantage to use certain labels over others.”          Id. (internal alteration and
quotation omitted). In light of this evidence produced by the Plaintiffs, the
district court found that the few classification forms the Wade Defendants had
produced on summary judgment did not meet their burden of persuasion to
show that Woodfox’s placement in CCR was solely the result of an initial
classification. Id. at *8. In the alternative, the district court held that even if
Woodfox’s confinement in CCR was due to an initial classification, the
“unparalleled amount of time” he had spent in solitary confinement was an
“extraordinary circumstance” that implicated a liberty interest. Id. at *9. The
district court stated that “Plaintiffs’ approximately forty-year length of
incarceration in extended lockdown is so atypical that the Court is unable to
find another instance of an inmate spending even close to that much time in
isolation.” Id. The Wade Defendants appeal the denial of summary judgment
based on qualified immunity.
                                 II. Discussion
      “The doctrine of qualified immunity seeks to strike a balance between
competing social objectives, providing breathing space for the ‘vigorous
exercise of official authority’ while at the same time allowing a possibility of
redress for victims of officials’ abuses.” Kinney v. Weaver, 367 F.3d 337, 349
(5th Cir. 2004) (en banc) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)).
Therefore,   “governmental     officials       performing   discretionary   functions
generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). We evaluate claims of qualified immunity using a two-part test:
                                           6
    Case: 13-31289     Document: 00512874075       Page: 7   Date Filed: 12/17/2014



                                    No. 13-31289


(1) whether the facts that a plaintiff has shown establish a violation of a
constitutional right; and (2) whether the right was clearly established at the
time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223,
232 (2009) (quotation marks omitted). We may examine these two factors in
any order. See id. at 236 (overruling in part Saucier v. Katz, 533 U.S. 194
(2001)). To be “clearly established” for purposes of qualified immunity, “[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). This inquiry “requires an assessment of whether the
official’s conduct would have been objectively reasonable at the time of the
incident.” Kinney, 367 F.3d at 350 (quotation omitted).
      We review the scope of clearly established law and the objective
reasonableness of the defendant government official’s actions de novo. Flores
v. City of Palacios, 381 F.3d 391, 394 (5th Cir. 2004). On interlocutory appeal
from the denial of qualified immunity, our jurisdiction “is limited to a review
of questions of law,” and we “consider only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.”             Id. (quoting
Kinney, 367 F.3d at 348). We view the facts in the light most favorable to the
plaintiffs. Id.
      A.     The Liberty Interest
      “The Fourteenth Amendment’s Due Process Clause protects persons
against deprivations of life, liberty, or property; and those who seek to invoke
its procedural protection must establish that one of these interests is at stake.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Thus, we must first determine
whether Woodfox’s incarceration in solitary confinement gives rise to a liberty
                                         7
    Case: 13-31289    Document: 00512874075     Page: 8   Date Filed: 12/17/2014



                                 No. 13-31289


interest protected by due process. “A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’” id.
(citing Vitek v. Jones, 445 U.S. 480, 493-494 (1980) (finding a liberty interest
in avoiding involuntary psychiatric treatment and transfer to mental
institution)), “or it may arise from an expectation or interest created by state
laws or policies,” id. (citing Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974)
(finding a liberty interest in avoiding revocation of state-created system of
good-time credits)). With regard to the latter, we focus on “the nature of the
deprivation” resulting from a state regulation, rather than “the language of a
particular regulation.” See Sandin v. Conner, 515 U.S. 472, 481, 482-84 (1995);
Wilkinson, 545 U.S. at 222-23. In Sandin, the Supreme Court held that, in
addition to the obvious due process interests implicated by restrictions that
lengthen a sentence, prisoners’ liberty interests “will be generally limited to
freedom from restraint which . . . imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Sandin, 515
U.S. at 484 (citations omitted); see Wilkinson, 545 U.S. at 223.
      The Wade Defendants argue that we need not reach the Sandin “atypical
and significant hardship” test. Instead, they argue that no liberty interest ever
arose because Woodfox’s incarceration in CCR is the result of an “initial
classification” that the Wade Defendants made upon his transfer in 2010. We
have stated that “generally speaking, a prisoner has no liberty interest in his
custodial classification.” Hernandez v. Velasquez, 522 F.3d 556, 562 (5th Cir.
2008); see, e.g., Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988) (“An
inmate has neither a protectable property nor liberty interest in his custody
classification”). We have “repeatedly affirmed that prison officials should be
accorded the widest possible deference in classifying prisoners’ custodial status
                                       8
    Case: 13-31289     Document: 00512874075      Page: 9   Date Filed: 12/17/2014



                                  No. 13-31289


as necessary to maintain security and preserve internal order.” Hernandez,
522 F.3d at 562 (quotations and internal alteration omitted); see also Wilkerson
I, 329 F.3d at 436. Wilkerson I, a previous opinion in this litigation, did suggest
that a liberty interest would not arise from an initial classification when it
stated that “if the inmates’ confinement in extended lockdown is not the result
of their initial classification, the Sandin test would be triggered.” Wilkerson I,
329 F.3d at 436.
      However, the recognized need to afford prison officials wide latitude to
maintain safety and order in the prisons they manage must coexist with
constitutional dictates. In recent precedent, the Supreme Court and this court
have made clear that there is no dispositive bright line between deprivations
resulting from initial custodial classifications and deprivations resulting from
disciplinary measures. Notably, in Wilkinson v. Austin, the plaintiff prisoners
asserted that placement in a Supermax facility in Ohio violated their due
process rights. 545 U.S. at 213. Placement in the Supermax facility was made
both by initial security classification and by subsequent reclassification based
on conduct while in prison. Id. at 215-16. The Supreme Court never indicated
that the liberty interest analysis was different when addressing an initial
security classification or an administrative custodial determination, as
opposed to a punitive disciplinary action. Instead, the Court simply applied
the “atypical and significant hardship” test from Sandin. Id. at 223. Likewise,
since the Supreme Court’s decision in Wilkinson, we have stated that “when a
prisoner demonstrates extraordinary circumstances,” or in other words, an
“atypical and significant hardship,” he may “maintain a due process challenge
to a change in his custodial classification.”      Hernandez, 522 F.3d at 562
(internal quotation marks omitted); see also Tate v. Starks, 444 F. App’x 720,
                                        9
    Case: 13-31289      Document: 00512874075     Page: 10   Date Filed: 12/17/2014



                                   No. 13-31289


723-24 (5th Cir. 2011) (noting that extremely restrictive conditions constitute
a “crucial exception to the general rule that a prisoner has no liberty interest
in his classification”).
      The Wade Defendants also point to case law holding that, in general,
administrative segregation does not implicate a liberty interest. We have
stated that, “absent extraordinary circumstances,” administrative segregation
that is merely “incident to the ordinary life as a prisoner” is not grounds for a
constitutional claim, because it simply “does not constitute a deprivation of a
constitutionally cognizable liberty interest.” Pichardo v. Kinker, 73 F.3d 612,
612-13 (5th Cir. 1996); see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995)
(“administrative segregation, without more, simply does not constitute a
deprivation of a constitutionally cognizable liberty interest”).             These
statements, however, are best understood as alternative statements of the
Sandin    test:   administrative   segregation    “without   more”    or   “absent
extraordinary circumstances” is administrative segregation that is merely
incident to ordinary prison life, and is not an “atypical and significant
hardship” under Sandin. See Pichardo, 73 F.3d at 612-13; Luken, 71 F.3d at
193. “In other words, segregated confinement is not grounds for a due process
claim unless it ‘imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” Hernandez, 522 F.3d at 562
(quoting Sandin, 515 U.S. at 484); see also Hardaway v. Meyerhoff, 734 F.3d
740, 743 (7th Cir. 2013) (“Whether a prisoner has a liberty interest implicated
by [segregated] confinement relies on whether the confinement imposed an
‘atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.’”).


                                       10
    Case: 13-31289     Document: 00512874075      Page: 11    Date Filed: 12/17/2014



                                   No. 13-31289


      We must therefore apply the Sandin test and determine whether
Woodfox’s continued solitary confinement at Wade constitutes “atypical and
significant hardship. . . in relation to the ordinary incidents of prison life,” such
that a liberty interest in avoiding the deprivation arises. See Wilkinson, 545
U.S. at 223; Sandin, 515 U.S. at 484; Hernandez, 522 F.3d at 562-63. Our
conclusion flows directly from the Supreme Court’s decisions in Sandin and
Wilkinson.    “In deciding whether changes to an inmate’s conditions of
confinement implicate a cognizable liberty interest, both Sandin and
[Wilkinson] considered the nature of the more-restrictive confinement and its
duration in relation to prison norms and to the terms of the individual’s
sentence.” Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 2008) (emphasis
in original). In Sandin, the Supreme Court held that no liberty interest was
implicated by segregated confinement for thirty days, imposed as discipline for
disruptive behavior. Sandin, 515 U.S. at 485-86. The Court found that in the
circumstances of that case, segregated confinement did not “present a dramatic
departure from the basic conditions of Conner’s indeterminate sentence.” Id.
at 485. The Court noted that inmates in the general population at the prison
experienced “significant amounts of ‘lockdown time,’” that the degree of
confinement in disciplinary segregation was not excessive “in either duration
or degree of restriction” compared to other types of restrictive confinement
imposed on inmates, and that the thirty-day disciplinary segregation did not
work a “major disruption in the inmate’s environment.” Id. at 486-87.
      Subsequently, in Wilkinson v. Austin, the Supreme Court held that a
prisoner’s assignment to the Ohio Supermax facility entailed “highly
restrictive conditions” of confinement, and did give rise to a liberty interest.
545 U.S. at 213, 224. In the Ohio Supermax, inmates spent 23 hours a day in
                                         11
   Case: 13-31289     Document: 00512874075     Page: 12   Date Filed: 12/17/2014



                                 No. 13-31289


single cells, with solid metal doors that prevented communication from one cell
to another; prisoners took all their meals alone in their cells; and visitation
opportunities were “rare,” and conducted through glass walls. Id. at 214, 223-
24. In addition, confinement at the Supermax facility was indefinite, and
otherwise eligible inmates were disqualified for parole consideration by
placement in Supermax. Id. at 224. The Court explained that “[w]hile any of
these conditions standing alone might not be sufficient to create a liberty
interest, taken together they impose an atypical and significant hardship
within the correctional context,” and held that the prisoners had a liberty
interest in avoiding assignment to the Supermax facility. Id.
      Following Sandin and Wilkinson, our sister circuits have considered the
severity of the restrictive conditions and their duration as key factors in
analyzing whether those conditions constitute an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” See
Hardaway, 734 F.3d at 743 (“In assessing whether disciplinary segregation
amounts to a constitutional violation, this court looks to ‘the combined import
of the duration of the segregative confinement and the conditions endured.’”);
Harden-Bey, 524 F.3d at 793 (“[M]ost (if not all) of our sister circuits have
considered the nature of the more-restrictive confinement and its duration in
determining whether it imposes an ‘atypical and significant hardship.’”
(emphasis in original)); Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)
(“Factors relevant to determining whether the plaintiff endured an ‘atypical
and significant hardship’ include ‘the extent to which the conditions of the
disciplinary segregation differ from other routine prison conditions’ and ‘the
duration of the disciplinary segregation imposed compared to discretionary
confinement.’”); Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (noting
                                       12
    Case: 13-31289    Document: 00512874075      Page: 13    Date Filed: 12/17/2014



                                  No. 13-31289


that relevant factors include “the duration of the condition, and the degree of
restraint imposed”); Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)
(considering the amount of time the prisoner was placed in segregation and
whether the conditions were significantly more restrictive than those imposed
upon other inmates in solitary confinement).
      Courts have considered different baselines when determining what
conditions are “atypical” in a particular case. Some courts have compared the
conditions for inmates in segregated confinement to inmates in the general
population at the institution. See Beverati v. Smith, 120 F.3d 500, 504 (4th
Cir. 1997). Some have compared the conditions of the segregated confinement
at issue to conditions of segregation that are ordinary within the particular
state’s penal system as a whole. See Griffin v. Vaughn, 112 F.3d 703, 708 (3d
Cir. 1997). One court has held that the appropriate comparison is to “the most
restrictive confinement conditions that prison officials . . . routinely impose on
inmates serving similar sentences.” Hatch v. District of Columbia, 184 F.3d
846, 856 (D.C. Cir. 1999).
      Here, considering the duration of the solitary confinement, the severity
of the restrictions, and their effectively indefinite nature, it is clear that
Woodfox’s continued detention in CCR constitutes an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”
according to any possible baseline we could consider.
      We need not dwell on duration.         Woodfox’s incarceration in solitary
confinement is now approaching an extraordinary thirty-nine years. This is
almost five times the duration deemed sufficient to give rise to a liberty
interest in Shoats. 213 F.3d at 144 (“[E]ight years in administrative custody,
with no prospect of immediate release in the near future, is ‘atypical’ in relation
                                        13
    Case: 13-31289    Document: 00512874075      Page: 14   Date Filed: 12/17/2014



                                  No. 13-31289


to the ordinary incidents of prison life”); see also Laue v. Johnson, 117 F. App’x
365, 366 (5th Cir. 2004) (“We will assume arguendo that Laue’s eight years of
confinement in administrative segregation constitutes an ‘atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life.’”); Harden-Bey, 524 F.3d at 793 (finding due process complaint was
incorrectly dismissed where it alleged three years of administrative
segregation which was “not improbably” indefinite). By contrast, the duration
in segregated confinement that courts have found does not give rise to a liberty
interest ranges up to two and one-half years, a mere fraction compared to the
duration of Woodfox’s solitary confinement. See Jones v. Baker, 155 F.3d 810,
812-13 (6th Cir. 1998) (holding that administrative segregation for two and
one-half years did not give rise to a liberty interest); Griffin, 112 F.3d at 708
(finding that inmate’s placement in administrative segregation for fifteen
months did not give rise to a liberty interest); Hernandez, 522 F.3d at 563
(finding that protective lockdown for twelve months did not give rise to a
liberty interest).
        Coupled with this extraordinary duration, the conditions in CCR are
sufficiently restrictive so as to constitute an “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515
U.S. at 484. In Wilkinson, inmates at Ohio Supermax (“OPS”) were confined
for 23 hours a day in individual cells with metal doors, where inmates ate all
their meals alone, visits were rare and conducted through a window, placement
was indefinite, and inmates were automatically made ineligible for parole.
Wilkinson, 545 U.S. at 214, 223-24. In the present case, the district court found
that,


                                       14
   Case: 13-31289     Document: 00512874075       Page: 15    Date Filed: 12/17/2014



                                   No. 13-31289


      Here, there are similar severe conditions of confinement. Like the
      conditions at OPS, inmates housed in Hunt and Wade’s CCR unit
      are confined alone to their cells for 23 hours per day with one hour
      designated for exercise and a shower period. Inmates on the CCR
      unit are not afforded the same ability to partake in religious or
      educational opportunities or to enjoy other privileges as those
      housed in general population.

Wilkerson II, 2013 WL 6665452, at *8. Though there are some distinctions
between the conditions at Ohio Supermax and CCR at Wade, notably that no
parole ramifications appear to attach to CCR, the record evidence supports the
district court’s finding that there are material and substantial similarities. In
both cases, prisoners are isolated in their cells for 23 hours a day, the exercise
allowed in the one hour outside of their cells is limited to isolated areas, there
are significant limitations on human contact, and placement is indefinite. The
Wade Defendants argue that restrictions in CCR are not sufficiently severe,
because they assert that Woodfox is allowed some contact visits, telephone
privileges, peer counseling, and correspondence courses. Were the duration of
Woodfox’s solitary confinement less lengthy, such distinctions might become
material.   Here, however, we consider the 23-hour-a-day in cell isolation,
limited physical exercise, and limited human contact, together with the
extraordinary length of time that Woodfox has been held in such conditions.
Viewed collectively, there can be no doubt that these conditions are sufficiently
severe to give rise to a liberty interest under Sandin.
      This is particularly true in light of the district court’s factual finding that
Woodfox’s solitary confinement at Wade is effectively indefinite. In Wilkinson,
the Supreme Court considered the indefinite duration of the confinement at
Supermax to be a significant factor. See Wilkinson, 545 U.S. at 214-15, 224.
Here, the district court stated:
                                        15
   Case: 13-31289    Document: 00512874075      Page: 16   Date Filed: 12/17/2014



                                 No. 13-31289


      Additionally, as this Court has previously found the Plaintiffs’
      placement in CCR was and remains indefinite. When determining
      that the Plaintiffs’ placement in CCR was indefinite at LSP, the
      Court observed,

            In the present matter, the Review Board’s rote
            repetition of the reason for the inmates continued
            confinement as being the same reason they were
            initially placed in lockdown effectively eliminates any
            possibility of release, regardless of their current
            situation and behavior while in lockdown. The
            original reason for placement in lockdown can never
            change; thus plaintiffs’ current situation of “indefinite
            placement” in lockdown is static, with no hope of
            release other than by death or release from the prison
            entirely, as was the case for plaintiff Wilkerson.
      As the evidence in the present matter demonstrates, this practice
      of rote repetition has continued at Hunt and Wade.
Wilkerson II, 2013 WL 6665452, at *9. We agree with the district court that
the summary judgment evidence, viewed in the light most favorable to
Woodfox, shows that his solitary confinement is effectively indefinite.
      Whether we compare Woodfox’s nearly thirty-nine years in 23-hour-a-
day isolation to other inmates in the general population, other inmates in
segregated confinement within the Louisiana system as a whole, or other
inmates serving life sentences, these conditions constitute an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin, 515 U.S. at 484. Whatever the “ordinary incidents of
prison life” may encompass, they can only be truly “ordinary” when
experienced by some measurable proportion of a baseline prison population. In
Shoats, the Third Circuit held that the parties “do not dispute the fact that
very few Pennsylvania prisoners have been confined in administrative custody

                                       16
   Case: 13-31289    Document: 00512874075     Page: 17   Date Filed: 12/17/2014



                                No. 13-31289


for periods of eight years or more,” and found that the uniqueness of the
duration, together with restrictive conditions, was sufficient to render that
confinement “atypical.” See Shoats, 213 F.3d at 144. Here, the district court
specifically found that “Plaintiffs’ approximately forty-year length of
incarceration in extended lockdown is so atypical that the Court is unable to
find another instance of an inmate spending even close to that much time in
isolation.” Wilkerson II, 2013 WL 6665452, at *9. Indeed, the Defendants
acknowledged at oral argument that there is no other inmate in Louisiana that
has been held in CCR for as long as Woodfox. Even if there may be some small
number of unknown prisoners in a comparable situation, it is clear that
Woodfox’s decades-long, effectively indefinite solitary confinement cannot be
classified as “ordinary” according to any measure. See Shoats, 213 F.3d at 144.
      Although it is true that Woodfox was confined in CCR at LSP, an
institution outside the management of the Wade Defendants, for thirty-five of
the nearly thirty-nine years of his solitary confinement, in the circumstances
of this case we must consider the entire duration.        We reject the Wade
Defendants’ assertion—unsupported by any authority—that Woodfox’s
previous decades in solitary confinement are irrelevant to the question of his
due process rights now. “Due process is flexible and calls for such procedural
protections as the particular situation demands.” Mathews v. Eldridge, 424
U.S. 319, 334 (1976) (quotation omitted).      In the present case, the Wade
Defendants did not confront Woodfox as a newly convicted inmate, entirely
unknown to them, with no institutional record. Instead, in November 2010,
part of the circumstances to be considered upon his transfer was that Woodfox
had already been subjected to over three decades in solitary confinement, in


                                      17
   Case: 13-31289    Document: 00512874075      Page: 18   Date Filed: 12/17/2014



                                 No. 13-31289


the same prison system, under the same ultimate administration, and with the
same continuing justification for the confinement.
      In comparable situations, other circuits have aggregated time spent in
different facilities when deciding whether a liberty interest was implicated by
administrative segregation. In Giano v. Selsky, the Second Circuit found it
particularly appropriate to aggregate the time the plaintiff spent in
administrative segregation at two facilities where “the two periods of
confinement were based on the same administrative rationale and that the
conditions of [the plaintiff’s] confinement were, for all practical purposes,
identical at both facilities.” 238 F.3d 223, 226 (2d Cir. 2001). Similarly, in
Shoats, the plaintiff prisoner had been transferred among multiple institutions
in the state and federal prison system. 213 F.3d at 142. Shoats was originally
placed in administrative custody in 1989 at the State Correctional Institution
in Dallas, Pennsylvania (“SCI-Dallas”). Id. He was subsequently transferred
to the federal penitentiary at Leavenworth, Kansas, and returned to SCI-
Dallas in June 1991, where he was placed back in administrative custody. Id.
In January 1995, he was transferred to a state correctional institution in
Greene, Pennsylvania, and continued to be held in administrative custody. Id.
In determining whether that continued administrative custody implicated a
liberty interest, the Third Circuit considered the entire cumulative eight-year
period of the prisoner’s administrative custody in the state system. See id. at
143-44.
      Given the extraordinarily lengthy detention and the isolating, restrictive
conditions that we consider here, there is no basis for concluding that prison
officials may avoid the established constitutional rights of prisoners by


                                      18
    Case: 13-31289         Document: 00512874075        Page: 19   Date Filed: 12/17/2014



                                      No. 13-31289


transferring them to a new facility and wiping the slate clean, while continuing
all of the conditions that the prisoner has challenged.
      B.        Clearly Established Law
      Having found a liberty interest, we must now determine whether that
liberty interest was sufficiently clearly established at the time of Woodfox’s
2010 transfer, such that a reasonable official would have understood that the
failure to provide adequate procedural protections violated the Constitution.
The touchstone of this inquiry is “fair warning.” See Kinney, 367 F.3d at 350.
“The law can be clearly established ‘despite notable factual distinctions
between the precedents relied on and the cases then before the Court, so long
as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 740
(2002)).
      The Wade Defendants contend that, despite subsequent developments in
the law, they were objectively reasonable in relying on the assumption in
Wilkerson I that a liberty interest could not arise from an initial classification,
regardless of the duration or indefiniteness of Woodfox’s solitary confinement.
See Wilkerson I, 522 F.3d at 435-36.
      However, the law did not freeze with the decision in Wilkerson I in 2003.
As we have said, prior to the 2010 transfer of Woodfox, both our court and the
Supreme Court had recognized that even if an initial security classification
does not generally implicate a liberty interest, such an interest may arise
where      an    initial   classification   is   also   attended    by   “extraordinary
circumstances,” that is, an “atypical and significant hardship.” See Wilkinson,
545 U.S. at 213, 222-24; Hernandez, 522 F.3d at 562-63. The Supreme Court’s
2005 decision in Wilkinson made it clear that “indefinite” placement in “highly
                                            19
   Case: 13-31289     Document: 00512874075      Page: 20   Date Filed: 12/17/2014



                                  No. 13-31289


restrictive conditions” implicates a liberty interest, even if that placement is
the result of an initial classification. Wilkinson, 545 U.S. at 213, 222-24.
Wilkinson clearly negates any assumption in Wilkerson I that a decision based
upon an initial classification could never give rise to due process concerns.
Likewise, in our 2008 decision in Hernandez, we clearly stated: “Only when a
prisoner demonstrates ‘extraordinary circumstances’ may he maintain a due
process challenge to a change in his custodial classification.” 522 F.3d at 562.
      In 2010, a reasonable prison official would have been on notice that
continuing Woodfox’s solitary confinement would give rise to a liberty interest
requiring procedural protections. Prior to Woodfox’s transfer to Wade, cases
such as Wilkinson and Hernandez made clear that even an initial security
classification may give rise to a liberty interest if the Sandin “atypical and
significant hardship” test is met. See Wilkinson, 545 U.S. at 223; Hernandez,
522 F.3d at 562; see also Tate, 444 F. App’x at 723-24. Woodfox was subjected
to the sort of 23-hour-a-day in-cell confinement, limited physical exercise,
limited human contact, and effectively indefinite placement that gave rise to a
liberty interest in Wilkinson.      Any differences between the Supermax
conditions in Wilkinson and the CCR conditions at Wade are insufficient to
render reasonable the conclusion that there is no liberty interest here.
      This conclusion is cemented by the unprecedented duration of Woodfox’s
incarceration in CCR. It is difficult, if not impossible, to imagine circumstances
more “extraordinary” than nearly four decades in solitary confinement. Courts
applying the Sandin test have always considered the duration of the
restrictions to be a central factor in the analysis. See Hernandez, 522 F.3d at
563 (contrasting twelve months of protective lockdown with thirty years);
Hardaway, 734 F.3d at 743; Harden-Bey, 524 F.3d at 792; Palmer, 364 F.3d at
                                       20
   Case: 13-31289      Document: 00512874075     Page: 21   Date Filed: 12/17/2014



                                  No. 13-31289


64; Serrano, 345 F.3d at 1078; Shoats, 213 F.3d at 144. Indeed, in Hernandez,
this court expressly characterized the CCR conditions at issue here as “extreme
conditions” and contrasted the Hernandez plaintiff’s twelve months of
protected lockdown with Woodfox, who had been “kept on lockdown status for
30 years.” Hernandez, 522 F.3d at 563. In the circumstances of this case, no
reasonable prison official could conclude that continuing four decades in
indefinite solitary confinement would not implicate a liberty interest protected
by due process.
      C.    Adequacy of Process
      We hold that Woodfox has a clearly established liberty interest. It does
not follow that this type of extended lockdown is necessarily impermissible in
every circumstance, but that it is such an “atypical and significant hardship”
that the prison officials must provide adequate procedural protections to the
inmate. See Wilkinson, 545 U.S. at 224-29 (holding that the prison system
provided adequate due process by providing informal, non-adversary
procedures which included multiple levels of review for any decision
recommending OPS placement, and a placement review within 30 days of the
initial assignment).   Here, the district court found that genuine issues of
material fact precluded summary judgment on the question of whether the
procedures for review of CCR placement at Wade were constitutionally
adequate. Wilkerson II, 2013 WL 6665452, at *9-11. The Wade Defendants do
not challenge this holding on appeal, and conceded at oral argument that if we
were to find a liberty interest, the case must be remanded to determine the
adequacy of the procedures.       Having found a clearly established liberty
interest, we affirm the denial of summary judgment based on qualified


                                      21
    Case: 13-31289       Document: 00512874075    Page: 22   Date Filed: 12/17/2014



                                   No. 13-31289


immunity and leave the question of the adequacy of the process to be resolved
in the district court.
                                    III. Conclusion
      For the foregoing reasons, the district court’s denial of qualified
immunity is AFFIRMED.           The case is remanded for further proceedings
consistent with this opinion.




                                        22
