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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11322 Non-Argument Calendar ________________________
D.C. Docket No. 5:15-cv-00419-TES
TIMOTHY R. JOHNSON,
Plaintiff - Appellee Cross Appellant,
versus
HOUSTON COUNTY GEORGIA, et al.,
Defendants,
CITY OF WARNER ROBINS, GEORGIA, DEBORAH D MILLER , Detective, individually and in her official capacity as an officer of Warner Robins Police Department , MALCOLM H DERRICK, JR, Detective, "Mac", individually and in his official capacity as an officer of Warner Robins Police Department, H. D. DENNARD , Captain, individually and in his official capacity as an officer of Warner Robins Police Department, R. G. WEST, Lieutenant, individually and in his official capacity as an officer of Warner Robins Case: 18-11322 Date Filed: 12/20/2018 Page: 2 of 16
Police Department, et al.,
Defendants-Appellees,
MARGARET HAYS,
Defendant - Appellant Cross Appellee.
________________________
Appeals from the United States District Court for the Middle District of Georgia ________________________
(December 20, 2018)
Before WILSON, ROSENBAUM, and HULL, Circuit Judges.
PER CURIAM:
In 2006, the Georgia Supreme Court overturned plaintiff Timothy Johnson’s
convictions and life sentences for murder and armed robbery, concluding that his
guilty plea was not knowing and voluntary. Johnson was re-indicted and transferred
to Houston County Jail to await trial. Over seven years later, he was acquitted.
After his release, Johnson brought this counseled federal civil-rights lawsuit
alleging malicious prosecution and violations of his substantive and procedural due-
process rights. The district court resolved all claims against Johnson save one: a
substantive-due-process claim based on his pretrial confinement in administrative
segregation after his convictions were overturned in 2006. For that claim, the court
denied qualified immunity to defendant Sergeant Margaret Hays, who made
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permanent Johnson’s administrative-segregation classification in January 2011.
Hays now appeals the denial of qualified immunity, and Johnson cross-appeals the
grant of summary judgment on a procedural-due-process claim also based on his
confinement in administrative segregation.
I.
In September 1984, Taressa Stanley, a convenience-store clerk, was shot
during an armed robbery and later died from her injuries. Johnson was charged with
the armed robbery and murder, and he pled guilty to those charges in December
1984. In February 2006, the Georgia Supreme Court vacated Johnson’s convictions,
concluding that his guilty plea was not knowing and voluntary because the record
did not show that he had been advised at the plea hearing of certain constitutional
rights. Johnson v. Smith, 626 S.E.2d 470, 471 (Ga. 2006).
The state decided to retry Johnson, and he was transferred from Georgia State
Prison to Houston County Jail (the “Jail”) in March 2006 to await trial. The grand
jury issued a new indictment in June 2006, but the jury trial, at which Johnson was
acquitted, was greatly delayed and did not take place until December 2013, for
reasons not known to this panel.
Upon his transfer to the Jail, Johnson was designated a “medium maximum
security” detainee and assigned to general population in “H-pod,” where he occupied
a single-person cell. In May 2009, the Jail changed its pod assignments because
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particular pods, including H-pod, were reaching capacity. As part of the
restructuring, H-pod was reassigned as administrative segregation, which is meant
for detainees who cannot get along with others or are required to be by themselves.
Defendant Hays worked at the Jail during the pod restructuring and became
chairperson of the Inmate Classification Committee in 2010. She testified that,
during the restructuring, detention officers asked the detainees housed in H-pod if
they would like to go to general population. According to Hays, Johnson asked to
remain in H-pod because he wanted a room by himself. Johnson, however, denies
ever being asked to go to the general population or telling Hays or any other
detention officer that he wished to remain in H-pod. And the classification records
do not reflect that Johnson voluntarily asked to stay in H-pod. Rather, the records
simply list his charges—murder, armed robbery, and aggravated battery—as the
reasons for his placement.
The Jail periodically conducted inmate-classification reviews. After H-pod’s
restructuring, Johnson’s classification was reviewed three times—on March 12,
2010, June 16, 2010, and January 11, 2011. By the time of the reviews, Hays headed
the Classification Committee and therefore determined Johnson’s classification.
During the January 2011 review, Hays made permanent Johnson’s classification in
administrative segregation. She listed no reason for the permanent designation.
After the permanent designation, Johnson’s classification was not reviewed again
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before trial in December 2013, nearly three years later. Johnson never filed a
complaint regarding his confinement in administrative segregation.
As a detainee in administrative segregation, Johnson did not receive the same
privileges as detainees in the general population. He was confined to a cell where
he could communicate with other inmates only through the vent. He could exit his
cell only to shower and occasionally attend 30-minute yard calls. While on yard
calls, he was permitted to be outside in the jail yard, but he could not interact with
other inmates.
II.
Johnson filed this 42 U.S.C. § 1983 federal civil-rights action in November
2015. He brought claims against various defendants arising out of his 1984 arrest
and prosecution, his prosecution following the Georgia Supreme Court’s vacatur of
his 1984 conviction, and his lengthy pretrial confinement in administrative
segregation at the jail.
Two claims against Hays are relevant to this appeal. First, Johnson brought a
substantive-due-process claim, complaining that his confinement in administrative
segregation lacked a legitimate governmental purpose. Second, Johnson brought a
procedural-due-process claim, alleging that the jail had confined him to
administrative segregation without notice and a meaningful opportunity to challenge
the classification.
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The district court denied summary judgment to Hays on the first claim but
granted it on the second claim. As to the procedural-due-process claim, the court
found that it failed for multiple reasons: Hays did not initially place Johnson in
administrative segregation; Johnson never requested a hearing after his initial
placement; and no clearly established law would have put Hays on notice that
placing Johnson in administrative segregation without a hearing would have denied
him due process.
As to the substantive-due-process claim, the district court found that summary
judgment was not appropriate because a genuine issue of material fact existed as to
whether Johnson was permanently placed in administrative segregation as
punishment for the charged crimes. The court explained that Johnson was a pretrial
detainee while awaiting trial, so his claim—despite being presented under the Eighth
Amendment—was analyzed under the Due Process Clause of the Fourteenth
Amendment, which prohibits pretrial punishment and the imposition of conditions
not reasonably related to a legitimate governmental purpose. The court found a
factual dispute regarding Hays’s “stated reason for permanently keeping [Johnson]
in administrative segregation”—that H-pod was being reassigned and he requested
to remain there—because Johnson denied making any such request, and prison
records simply listed Johnson’s charges as the reason for his confinement in
administrative segregation. Viewing this evidence in Johnson’s favor, the district
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court reasoned that a reasonable jury could infer that Hays had no legitimate
government purpose for keeping Johnson in pretrial administrative segregation and
that the more restrictive conditions were, instead, imposed as punishment.
The district court further found that the law was clearly established enough to
defeat Hays’s defense of qualified immunity. Specifically, the court concluded that
the totality of Johnson’s confinement conditions—indefinite and lengthy pretrial
confinement in the restrictive conditions of administrative segregation for the
purpose of punishment—violated Johnson’s clearly-established rights.
Hays appeals the denial of qualified immunity on the substantive-due-process
claim. She also argues that Johnson’s claim is time-barred. Johnson cross-appeals
the grant of qualified immunity to Hays on the procedural-due-process claim.
III.
We first consider our jurisdiction. We have interlocutory appellate
jurisdiction to review an order denying qualified immunity, at least to the extent it
turns on an issue of law. Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir. 1996).
Such orders are ordinarily immediately appealable because the “immunity issue is
both important and completely separate from the merits of the action, and . . . could
not be effectively reviewed on appeal from a final judgment because by that time the
immunity from standing trial will have been irretrievably lost.” Plumhoff v. Rickard,
572 U.S. 765, 772 (2014).
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In contrast, we lack “interlocutory jurisdiction to review the grant of summary
judgment to a defendant on qualified immunity grounds.” Cottrell, 85 F.3d at 1484
(emphasis in original). Nevertheless, “[a]n appeal from the denial of qualified
immunity may implicate this Court’s discretionary pendent appellate jurisdiction to
review otherwise non-appealable matters.” Smith v. LePage, 834 F.3d 1285, 1292
(11th Cir. 2016). We may exercise pendent appellate jurisdiction “if the non-
appealable matters are ‘inextricably intertwined with an appealable decision or if
review of the former decision is necessary to ensure meaningful review of the latter.”
Id. (quotation marks omitted). “Matters may be sufficiently intertwined where they
implicate the same facts and the same law.” Id. (quotation marks and alteration
omitted). But “[w]e are wary of attempts to ‘piggy-back’ cross-appeals on an appeal
of the denial of qualified immunity.” Leslie v. Hancock Cty. Bd. of Educ., 720 F.3d
1338, 1344–45 (11th Cir. 2013).
Here, there is no dispute that we have jurisdiction over Hays’s appeal of the
denial of qualified immunity because she raises legal issues about whether her
conduct violated the Fourteenth Amendment and whether the law was clearly
established. Cottrell, 85 F.3d at 1484. But at this time, we will not review her
argument that Johnson’s claim is time-barred because the court’s non-final
limitations decision is not intertwined with or necessary for review of the qualified-
immunity issue. See Smith, 834 F.3d at 1292. Accordingly, we dismiss that portion
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of Hays’s appeal without prejudice to appealing it as part of any appeal from a final
judgment.
As for Johnson’s cross-appeal, we decline to exercise pendent appellate
jurisdiction because Johnson’s procedural-due-process claim is not sufficiently
interwoven with the qualified-immunity issue to necessitate immediate review.
Johnson’s substantive- and procedural-due-process claims may share the same basic
factual predicate—Johnson’s pretrial confinement in administrative segregation—
but the legal issues to be resolved are distinct. The court’s decision denying qualified
immunity turns on the lack of a legitimate government objective for keeping Johnson
in administrative segregation. The procedural-due-process claim, in contrast, turns
on what procedures, if any, the jail was required to afford Hays with respect to that
confinement. There is, of course, some overlapping evidence, but it is not necessary
that we review the procedural-due-process claim in order to afford meaningful
review of the substantive-due-process claim. Accordingly, we decline to exercise
pendent appellate jurisdiction over Johnson’s cross-appeal.
In sum, the sole issue before us at this time is whether the district court
properly denied qualified immunity to Hays on Johnson’s substantive-due-process
claim.
IV.
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We review de novo the denial of qualified immunity at summary judgment.
Moore v. Pederson, 806 F.3d 1036, 1041 (11th Cir. 2015). Summary judgment is
appropriate when “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). In reviewing
whether summary judgment is warranted, we, like the district court, must consider
the record and draw all reasonable inferences in favor of the non-moving party.
Moore, 806 F.3d at 1041.
Qualified immunity protects public officials from suit in their individual
capacities for reasonable, discretionary actions performed in the course of their
duties. Carter v. Butts, 821 F.3d 1310, 1318 (11th Cir. 2016). But qualified
immunity offers no protection if the plaintiff can show that the defendant, even
though engaged in a discretionary job duty, violated a constitutional right that was
clearly established at the time of the misconduct. Id. at 1319. Hays argues that the
district court erred in finding both a violation of a constitutional right and that the
right was clearly established. We address each issue separately.
A.
We first consider the district court’s conclusion that a reasonable jury could
find a violation of Johnson’s rights under the Fourteenth Amendment. We analyze
the conditions under which a pretrial detainee is held under the Due Process Clause
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of the Fourteenth Amendment, rather than the Eighth Amendment. Jacoby v.
Baldwin Cty., 835 F.3d 1338, 1344 (11th Cir. 2016). “Due process requires that a
pretrial detainee not be punished prior to a lawful conviction.” Magluta v. Samples,
375 F.3d 1269, 1273 (11th Cir. 2004); see Block v. Rutherford, 468 U.S. 576, 583
(1984); Bell v. Wolfish, 441 U.S. 520, 535 (1979).
In evaluating the constitutionality of conditions of pretrial detention, we “must
decide whether the disability is imposed for the purpose of punishment or whether
it is but an incident of some other legitimate governmental purpose.” Wolfish, 441
U.S. at 538; see Jacoby, 835 F.3d at 1345 (stating that we must ask whether any
“legitimate goal” was served by the prison conditions and whether the conditions are
“reasonably related” to that goal). “[T]he government may detain individuals to
ensure their presence at trial and may subject them to the conditions and restrictions
of the detention facility so long as those conditions and restrictions do not amount
to punishment.” Magluta, 375 F.3d at 1273. But “if a restriction or condition is not
reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court
permissibly may infer that the purpose of the governmental action is punishment.”
Wolfish, 441 U.S. at 539.
Hays presents two arguments in support of her view that the district court
erred in finding a constitutional violation. First, she contends that the court erred in
finding that she was required to perform a periodic review of Johnson’s
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administrative-segregation classification. She asserts that no periodic review is
necessary when an inmate’s administrative confinement is unconnected with the
disciplinary process. Second, she maintains that the court erred in finding that
Johnson had a liberty interest in freedom from administrative segregation, stating
that Johnson cannot meet the standard established by the Supreme Court in Sandin
v. Conner, 515 U.S. 472 (1995).
These arguments, however, fail to address the stated ground for the district
court’s ruling. In finding a constitutional violation, the court did not cite Hays’s
failure to perform a “periodic review,” which is a procedural protection sometimes
afforded to those confined in administrative segregation.1 Magluta, 375 F.3d at 1278
n.7 (stating that inmates may be entitled to “some sort of periodic review” of
confinement to administrative segregation). Nor did the court find that Johnson met
Sandin’s standard, which does not, in any event, apply to pretrial detainees like
Johnson. See Jacoby, 835 F.3d at 1348–49 (“A pretrial detainee need not meet the
Sandin standard to establish his right to a due process hearing before being placed
in disciplinary segregation.”).
Instead, the district court concluded that Johnson had established a
substantive-due-process violation under Wolfish by showing that the more restrictive
1 True, the district court discussed the lack of periodic review in analyzing whether the right was clearly established, but that is a separate inquiry. 12 Case: 18-11322 Date Filed: 12/20/2018 Page: 13 of 16
conditions of administrative segregation were not reasonably related to a legitimate
goal. See Wolfish, 441 U.S. at 539 (“[I]f a restriction or condition is not reasonably
related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly
may infer that the purpose of the governmental action is punishment.”). That
conclusion is not undermined by Sandin, see Jacoby, 835 F.3d at 1348 (“Sandin
leaves intact [Wolfish]’s holding that a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.” (quotation marks
omitted)), nor does it depend on the procedures the Jail employed in making
confinement decisions.
Accordingly, Hays’s arguments relating to Sandin and periodic review do
nothing to convince us that the stated ground for the district court’s decision was
incorrect. And aside from these two arguments, Hays’s initial brief on appeal does
not meaningfully challenge the basis for the district court’s holding. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (stating that an
appellant abandons an issue when she fails “to challenge properly on appeal one of
the grounds on which the district court based its judgment”). Her passing references
to the “nonpunitive” nature of Johnson’s confinement, without offering supporting
arguments and relevant authority to explain why the court erred, are insufficient to
properly raise the issue on appeal. Id. at 681 (“We have long held that an appellant
abandons a claim when he either makes only passing references to it or raises it in a
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perfunctory manner without supporting arguments and authority.”). While she raises
pertinent arguments in her reply brief, these arguments come too late. See id. at 682–
83 (declining to address arguments raised for the first time in a reply brief).
Therefore, accepting the version of events in the light most favorable to the plaintiff,
we affirm the district court’s conclusion that Johnson established a constitutional
violation.
B.
We next consider Hays’s argument that the district court “erred in finding that
the law was clearly established that an officer is required to perform periodic reviews
of the designation of a pre-trial detainee who is in administrative segregation due to
overcrowding.” She contends that the law was not clearly established in 2011 that
“an inmate should not be placed in administrative segregation due to overcrowding
and reassignment of a cell,” or that periodic reviews were necessary when a
defendant could have, but did not, request reassignment.
Again, however, Hays’s argument glosses over the district court’s
determination that Johnson established a genuine issue of material fact as to whether
his pretrial confinement in administrative segregation was for punitive reasons.
While Hays asserts that Johnson’s confinement was due to “overcrowding,” that
reason explains only the initial restructuring of H-pod, not Johnson’s subsequent
placement in the newly-restructured H-pod, let alone the decision to keep him in
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administrative segregation on a permanent basis more than a year later. Plus, as the
district court noted, the stated reason for the initial placement decision was that
Johnson requested it, but he denied ever doing so.
Moreover, we conclude that it was clearly established that subjecting a pretrial
detainee to more restrictive conditions of confinement solely for the purpose of
punishment violated clearly established law. In McMillian v. Johnson, for example,
we held that “it was clearly established that transferring a pretrial detainee to death
row for the purpose of punishment violates due process.” 88 F.3d 1554, 1565–66
(11th Cir. 1996). In finding that the law was clearly established, we did not focus
on the particular conditions of death-row confinement. See id. Rather, we explained
that Wolfish prohibited “any pretrial punishment, defined to include conditions
imposed with an intent to punish.” Id. at 1565 (emphasis in original). That is
because “intent or motivation is an essential element of the underlying constitutional
violation.” Id. at 1566. Because we found that a reasonable jury could infer an
“intent to punish” on the part of the defendants in McMillian, we said that “there
[was] no question that their alleged conduct violated clearly established law.” Id.
For the reasons explained earlier—namely, that Hays forfeited this issue on
appeal—we do not revisit the district court’s determination that a reasonable jury
could infer that Hays intended to punish Johnson by keeping him in the more
restrictive conditions of administrative segregation. And we conclude that if a jury
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found such an intent to punish, there is likewise “no question” that Hays violated
clearly established law.
V.
In summary, we affirm the denial of qualified immunity to Hays on Johnson’s
substantive due process claim. We dismiss her appeal of the denial of her statute-
of-limitations defense, and we dismiss Johnson’s cross-appeal.
AFFIRMED IN PART; DISMISSED IN PART.