PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 18-3505 _____________ ERNEST PORTER, Appellant v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JOHN E. WETZEL, Secretary for Department of Corrections; ROBERT GILMORE; Super. for SCI Greene _____________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. Action No. 2-17-cv-000763) Magistrate Judge: Hon. Maureen P. Kelly ______________ Argued October 22, 2019 ______________ Before: GREENAWAY, JR., PORTER and COWEN, Circuit Judges. (Opinion Filed: September 1, 2020) Bret Grote [Argued] Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Daniel M. Greenfield Roderick & Solange MacArthur Justice Center/Northwestern Pritzker School of Law 375 East Chicago Ave. Chicago, IL 60611 Counsel for Appellant Michael P. Doss Sidley Austin LLP One South Dearborn St. Chicago, IL 60603 Counsel for Amicus Appellant Laura Rovner Student Law Office – Civil Rights Clinic University of Denver College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Counsel for Amicus Appellant Daniel B. Mullen [Argued] Kemal Alexander Mericli Office of Attorney General 1251 Waterfront Place, Mezzanine Level Pittsburgh, PA 1522 Counsel for Appellees 2 ______________ OPINION _____________ GREENAWAY, JR., Circuit Judge. In this case, we must decide whether our 2017 decision in Williams v. Secretary Pennsylvania Department of Corrections, 848 F.3d 549 (3d Cir. 2017), applies not only to death row inmates who have been granted vacatur, but also to death row inmates whose vacatur orders have been stayed pending appeal pursuant to local district court rules. In other words, we must determine whether the fact that a Pennsylvania state inmate received habeas relief in federal court, and is thereby subject to local rules, means that that inmate does not have a procedural due process right in avoiding continued indefinite solitary confinement. We decide that Williams governs this case and now hold that the existence of a stay does not extinguish procedural due process rights. We are also asked to decide whether thirty-three years of solitary confinement may violate the Eighth Amendment. We answer this question in the affirmative. We acknowledge, as we must, that the claimed Eighth Amendment right here has not been clearly established. Further, we hold that representatives of the Pennsylvania Department of Corrections are entitled to qualified immunity on the Eighth Amendment claim. We will therefore reverse and remand in part and affirm in part. 3 I. BACKGROUND A. Procedural Background Plaintiff-Appellant Ernest Porter was convicted of murder in the first degree and sentenced to death in the Philadelphia County Court of Common Pleas in 1986. Since then, he has been incarcerated in the Pennsylvania Capital Case Unit (“the CCU”). He is currently housed at SCI Greene. After his conviction and sentence were affirmed on direct appeal, Porter filed a Pennsylvania Post Conviction Relief Act (“PCRA”) petition in state court. It was denied. But on June 26, 2003, a federal district court in the Eastern District of Pennsylvania granted, in part, Porter’s 28 U.S.C. § 2254 petition. Most important, as relates to the present appeal, the ...
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