PORTER v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 69

OPINION AND ORDER granting 52 Motion for Summary Judgment; denying 54 Motion for Summary Judgment. Signed by Magistrate Judge Maureen P. Kelly on 11/8/2018. (ndf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERNEST PORTER,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, JOHN E. WETZEL,
ROBERT GILMORE, and JOHN/JANE
DOES,
Defendants.

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Civil Action No. 17-763
Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 52 and 54

OPINION AND ORDER
KELLY, Magistrate Judge
Plaintiff Ernest Porter (“Porter”), an inmate at the State Correctional Institution at Greene
(“SCI – Greene”) has presented a counseled civil rights complaint pursuant to 42 U.S.C. § 1983,
which he has been granted leave to prosecute without prepayment of costs. Porter alleges that
Defendants Robert Gilmore, the Pennsylvania Department of Corrections (“DOC”), and John E.
Wetzel (collectively, “Defendants”) have violated his rights provided by the Eighth and Fourteenth
Amendments to the United States Constitution by continuing to confine him in the Capital Case
Unit (“CCU”) even though his sentence of death has been vacated.
Presently before the Court are a Motion for Summary Judgment filed on behalf of
Defendants, ECF No. 52, and a Motion for Summary Judgment filed on behalf by Porter, ECF No.

54. For the reasons that follow, the Motion for Summary Judgment filed by Defendants is granted
and the Motion for Summary Judgment filed by Porter is denied. 1
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Status of Plaintiff’s Sentence

Over thirty-three years ago, on April 27, 1985, Porter robbed and murdered Raymond
Fiss as Fiss was opening his beauty shop in Philadelphia, Pennsylvania. Porter was convicted of,
inter alia, murder in the first degree on June 27, 1986, in the Court of Common Pleas of
Philadelphia County, Pennsylvania, and subsequently sentenced to death. ECF No. 55 ¶ 37. His
conviction and sentence were subsequently affirmed by the Supreme Court of Pennsylvania on
February 8, 1990. Commonwealth v. Porter, 569 A.2d 942 (Pa. 1990); ECF No. 55 ¶ 38.
On March 23, 1995, Porter filed a petition for relief under Pennsylvania’s Post Conviction
Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541 et seq. See Commonwealth v. Porter 728 A.2d 890
(Pa. 1999). The PCRA petition was denied in the trial court and the denial was affirmed on appeal.
Id.; ECF No. 55 ¶ 39. Porter filed a timely Petition for Writ of Habeas Corpus in the United States
District Court for the Eastern District of Pennsylvania on May 25, 1999. On June 26, 2003, the
District Court granted in part and denied the habeas petition. Porter v. Horn, 276 F. Supp. 2d 278,
364-65 (E.D. Pa. 2003), ECF No. 55 ¶ 41. Specifically, the District Court granted relief with
respect to Plaintiff’s sentence of death, which was vacated, but denied the petition in all other
respects:
AND NOW, this 26th day of June 2003, upon consideration of Petitioner’s Petition
for Writ of Habeas Corpus (Doc No. 14), all Responses and Replies thereto, all

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to having a United
States Magistrate Judge conduct all proceedings in this case, including the entry of a final judgment. ECF Nos. 3,
17.

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documents filed in support thereof an in opposition thereto, the record of
Petitioner’s case in state court, the expanded record, and evidence presented at the
evidentiary hearing, it is hereby ORDERED, consistent with the foregoing opinion,
that:
1. Petitioner Ernest Porter’s Petition for Writ of Habeas Corpus is GRANTED
as to Claim V, which related to the Court’s determination that there is a
reasonable likelihood the jury interpreted the penalty phase jury instructions
and verdict form in a way that prevented the consideration of
constitutionally relevant evidence;
2. the Petition is DENIED in all other respects;
3. Petitioner’s death sentence is VACATED;
4. the execution of the writ of habeas corpus is STAYED for 180 days from
the date of this Order, during which period the Commonwealth of
Pennsylvania may conduct a new sentencing hearing in a manner consistent
with this opinion;
5. after 180 days, should the Commonwealth of Pennsylvania not have
conducted a new sentence hearing, the writ shall issue and the
Commonwealth shall sentence Petitioner to life imprisonment;
6. in accordance with 29 U.S.C. § 2253, a certificate of appealability is
GRANTED to Petitioner regarding Claims III, IV, VI, VII, VIII, XII, XIII
and XIV; and
7. if either Petitioner or Respondents file an appeal to the United States Court
of Appeals for the Third Circuit, the entry of this Order will be stayed
pursuant to Eastern District of Pennsylvania Local Rule 9.4 (12) pending
the disposition of that appeal.
BY THE COURT:
ROBERT F. KELLY, SR. J.
No. 99-2677 (E.D. Pa. June 26, 2003), ECF No. 109 at 136-137 (the “Stay Order”).
Thereafter, on August 11, 2003, and August 20, 2003, both Porter and the Commonwealth
filed separate appeals to the United States Court of Appeals for the Third Circuit at Docket Nos.
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03-9006 and 03-9007, respectively. ECF Nos. 55-1 at 57, 69. As relevant to this matter, the
Commonwealth appealed the portion of the Order vacating Porter’s death sentence, and Porter
appealed the denial of relief as to his underlying conviction. In accordance with Paragraph 7 of
the Stay Order, the filing of these two appeals resulted in a stay of the entry of the Order vacating
Porter’s sentence of death.
On February 12, 2004, Porter filed a motion to stay the briefing schedules in both appeals,
pending a decision by the United States Supreme Court in Banks v. Horn, No. 02-1603, 124 S. Ct.
45 (2003). ECF No. 55-1 at 71. The United States Court of Appeals for the Third Circuit granted
Porter’s unopposed motion and entered an order on February 12, 2004, staying the briefing
schedules. The briefing schedule stay was lifted on September 8, 2004, following the Supreme
Court’s decision in Banks.
As set forth in this Court’s prior Memorandum Order relative to Porter’s Motion for
Preliminary Injunction, the appeal was again delayed:
Although the stay was lifted on September 8, 2004, following the Supreme Court’s
decision in Banks, Plaintiff subsequently filed two motions on October 22, 2004,
and October 27, 2004, respectively, asking that the briefing schedules be
temporarily tolled pending the disposition of two other cases then pending in the
United States Supreme Court. [ECF No. 55-1 at 60, 72]. Plaintiff subsequently
withdrew one of those requests and, following the Supreme Court’s decision in the
second case, the briefing schedules on Plaintiff’s cases were reinstated. [Id.]
Plaintiff, however, filed four motions seeking an extension of time of 60 days each
to file his brief and appendix, which were all granted. Id. Then, on November 9,
2006, Plaintiff filed a Motion asking to hold the appellate proceedings in abeyance
pending the Pennsylvania Supreme court’s disposition of Plaintiff’s Petition for
State Post-Conviction Relief filed on August 16, 2002, wherein he raised a claim
under Atkins v. Virginia, 536 U.S. 304 (2002). [ECF No. 55-1 at 61, 73]. That
motion was granted by the Third Circuit Court of Appeals on February 7, 2007,
with the added directive that the parties were to file status reports regarding the
PCRA proceedings every 60 days until the conclusion of the state proceedings.
[ECF No. 55-1 at 61-62, 73]. [….] (It should be noted here that Plaintiff
supplemented his PCRA Petition on June 15, 2006, raising a claim under Brady v.
Maryland, 373 U.S. 83 (1963). Although the PCRA court issued a ruling
dismissing the PCRA Petition on November 8, 2007, it did so finding that it was
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time-barred and did not meet the requirement of Brady material. Com. v. Porter,
35 A.3d 4, 7-11 (Pa. 2012). The PCRA court did not address the Atkins issue and
that portion of the PCRA Petition remains pending. Indeed, in its opinion affirming
the denial of post-conviction relief, the Pennsylvania Supreme Court directed the
PCRA court “to promptly dispose of appellant’s long-pending prior PCRA petition,
which raised an issue under Atkins….” Id. at 7).
Porter v. Pennsylvania Department of Corrections, No. 17-763, 2017 WL 4099784 at *2 n.2 (W.D.
Pa. Sept. 15, 2017) (italics added).
In its directive to the trial court to resolve Porter’s Atkins-related PCRA petition
expeditiously, the Pennsylvania Supreme Court observed that the procedural delay resulted from
a counseled strategy of filing serial PCRA petitions during the pendency of federal habeas review,
and requesting stays in both state and federal court. “The point is simple and fundamental,
obscured here only by the fact that federal counsel’s strategy – pursued in both state and federal
court – has been to avoid having any of appellant’s collateral claims decided any time soon. This
is a legally dubious, but common, strategy peculiar to certain capital defense counsel, who view
delay as an end in itself for those condemned under a sentence of death.” Commonwealth v. Porter,
35 A.3d 4, 15 (Pa. 2012). The Court acknowledged that proceeding with a meritorious Atkins
claim had consequences, “including conditions of incarceration, which specifically counsel against
the deferral of legitimate death eligibility claims.” Id. at 17. Accordingly, “[t]here simply is no
legitimate reason to defer decision of an Atkins claim, unless it lacks merit.” Id.
Despite the above-noted 2012 Order of the Pennsylvania Supreme Court, the latest status
report filed with the Third Circuit on June 12, 2018, indicates that Plaintiff’s Atkins-related PCRA
petition remains pending before the Court of Common Pleas of Philadelphia County. Porter’s
appointed habeas counsel represents that he continues to discuss settlement of this matter with the
Philadelphia District Attorney’s Office. ECF No. 55 ¶ 47; Porter v. Horn, Nos. 03-9006 and 039007, ECF No. 003113057982 (3d Cir. October 11, 2018). As a result of this procedural stalemate,
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the Commonwealth’s appeal from the District Court’s Order granting partial habeas relief with
respect to Porter’s death sentence remains pending in the Third Circuit, and the stay imposed by
the District Court vacating Porter’s death sentence is still in effect, some fifteen years later.
B.

Conditions of Confinement

Upon sentencing on June 27, 1986, Porter was placed in the custody of the Pennsylvania
DOC and, pursuant to 61 Pa. C.S.A. § 4303, was assigned to solitary confinement in the Level 5
housing Capital Case Unit (“CCU”) at SCI – Greene, a unit that houses death-row inmates. 2 ECF
No. 55 ¶¶ 1, 21. Cells in the CCU are no larger than 7 feet by 12 feet, and are closed with a door
that has two narrow vertical windows, measuring 5 ½ inches wide and 36 inches long. Id. ¶¶ 3, 4.
The permanent fixtures in Porter’s cell include a metal bed with a plastic mattress, a sink, toilet
and desk. Id. ¶ 6.
As a CCU inmate, Porter spends the overwhelming majority of his time in his cell,
including eating his meals alone. Id. ¶ 7. Porter is permitted to leave his cell for ten hours per
week, two hours per day Monday through Friday. Id. ¶ 5. This includes time for basic hygiene,
three showers per week, and for work duty. Id. ¶ 8. In addition, Porter is permitted to exercise in
the open air five days per week. Id. ¶ 14. CCU exercise cages are no more than twice the size of a
typical CCU cell, and one or two men are placed in an exercise area at the same time. Id. ¶¶ 15,
16. Porter is permitted one non-contact personal visit per week, and three telephone calls per week.

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The applicable Pennsylvania statute provides:
[T]he secretary [of corrections] shall, until infliction of the death penalty ... keep the inmate in
solitary confinement. During the confinement, no person shall be allowed to have access to the
inmate without an order of the sentencing court, except the following:
(1) The staff of the department.
(2) The inmate's counsel of record or other attorney requested by the inmate.
(3) A spiritual adviser selected by the inmate or the members of the immediate family of the
inmate.

61 Pa. Cons. Stat. Ann. § 4303.

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Id. ¶¶ 11, 13. In addition, unless Porter specifically requests a mental health appointment, any
medical or mental health consultations take place through his cell door, within listening range of
prisoners in the surrounding cells. Id. ¶ 20.
On the occasions when Porter is permitted to leave his cell, he must undergo a visual strip
search, and is handcuffed from behind, or handcuffed in front using a belt and tether. Id. ¶¶ 9, 10.
Job assignments are limited to janitorial duties on the CCU block, and performed in confined small
spaces under close observation and monitoring. Id. ¶ 18. CCU prisoners are permitted in-cell
study, using personal workbooks and reading material, but are otherwise precluded from
participation in adult basic education courses, vocational learning opportunities or the chance to
work towards a high school diploma. Id. ¶ 19. In addition, Porter is not permitted to attend
religious services with the general population, but may receive a daily visit from a religious leader,
for discussions through the narrow windows of his door. Id. ¶ 20.
Porter claims that as a result of the conditions of his confinement, he has suffered
deterioration of his mental health, including “severe anxiety, depression, panic, paranoia, bipolar
mood swings and sometimes suicidal impulses,” for which he is prescribed anti-depressant
medication. ECF No. 9 ¶ 21. In response to grievances related to Porter’s continued detention in
the CCU, Defendant Gilmore noted that Porter receives mental health services and indicated that
additional services may be requested through Porter’s counselor or the SCI-Greene Psychology
Department. ECF No. 9-7. Delivery of mental health services occurs in a number of ways. A
psychology staff member is assigned to the CCU on a full-time basis. ECF 55-2 at 59. In addition,
each CCU inmate receives weekly psychiatric visits, and can request additional services on an asneeded basis. Id. If an inmate is experiencing a mental health emergency, staff can arrange for
off-duty consultation with medical staff. When a CCU inmate is identified as decompensating, he

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or she can be placed into a Diversionary Treatment Unit (“DTU”) for interactive therapy or a
mental health unit on a temporary basis. Id. at 59-60.
There is no evidence in the record before this Court that Porter required or requested (and
did not receive) additional mental health services or placement in a specialized housing unit for
mental health purposes. Further, there is no evidence of record that either Defendant Wentz or
Defendant Gilmore were aware that available mental health treatment was insufficient for Porter’s
claimed mental health diagnoses.
It is undisputed that over the course of Porter’s thirty-two years of solitary confinement,
Porter has never been cited for disciplinary misconduct. ECF No. 55 ¶ 29.

Despite his

unremarkable behavior, and solely because of the status of his death sentence, the parties further
agree that Porter “lacks the opportunity to earn additional privileges” to further demonstrate his
ability to self-manage his behavior. Id. ¶ 30. DOC Policy DC-ADM 802 does not provide prisoners
in the CCU with the opportunity to challenge prolonged placement in solitary confinement. Id. ¶
31.
C.

Porter’s Claims

In Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549 (3d Cir. 2017), the United
States Court of Appeals for the Third Circuit recognized that “[i]nmates in solitary confinement
on death row without active death sentences face the perils of extreme isolation and are at risk of
erroneous deprivation of their liberty.” Id. at 574. “Accordingly, they have a clearly established
due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary
confinement on death row. The State must therefore afford these inmates procedural protections
that ensure that continuing this level of deprivation is required for penological purposes, and is not
reflexively imposed without individualized justification.” Id.

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Citing Williams, Porter brings this action, asserting that his death sentence has been
vacated, and thus his continued incarceration in the CCU violates his procedural and substantive
due process rights under the Fourteenth Amendment. In addition, based upon the conditions of
his allegedly wrongful confinement in the CCU, Porter asserts that his incarceration has subjected
him to cruel and unusual punishment in violation of the Eighth Amendment. In his Complaint,
ECF No. 9, Porter seeks declaratory relief in the form of a declaration that his constitutional rights
have been violated, and claims that as a result of his wrongful confinement to death row, he is
entitled to compensatory and punitive damages. 3 ECF No. 9 ¶¶ 32, 37, 42, 47, 52.
After extensive discovery, including the deposition of appropriate prison personnel and the
exchange of an expert report regarding the alleged absence of legal justification for Porter’s longterm solitary confinement, Porter now moves for the entry of summary judgment in his favor with
regard to his Fourteenth Amendment procedural and substantive due process claims. ECF Nos.
54, 56.
Defendants respond that Williams is specifically limited to situations where a sentence has
been vacated and all that remains is a resentencing hearing. According to Defendants, in this case,
the order vacating Porter’s sentence was stayed for purposes of appeal and so, by operation of law,
his sentence of death remains in effect. Under these circumstances, Defendants contend that no
procedural or substantive due process violation has occurred, and Pennsylvania law requires
Porter’s continued confinement in the CCU. In addition, to the extent Porter alleges an Eighth
Amendment conditions of confinement claim arising from the impact of long-term solitary

In response to Defendants’ Motion for Summary Judgment, Porter voluntarily withdraws his equal protection
claims against all parties, as well as all claims against the Pennsylvania Department of Corrections. ECF No. 60 at
14-15. Accordingly, summary judgment is entered in favor of Defendant Pennsylvania Department of Corrections
as to all claims, and in favor of Defendants Wetzel and Gilmore with respect to Porter’s Fourteenth Amendment
equal protections claims.

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confinement upon his mental health, Defendants contend that Porter failed to properly exhaust this
claim as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
Defendants further argue that pursuant to Section 1983, Porter has not sufficiently alleged or
established the personal involvement of Defendants Wetzel and Gilmore in the deprivations at
issue and has otherwise failed to muster evidence sufficient to establish that his Eighth Amendment
rights have been violated. Finally, Defendants contend that if the Court concludes that Porter’s
substantive or procedural due process rights have been violated, each is shielded from liability as
to all claims by application of the doctrine of qualified immunity because Williams has not been
applied previously to situations where an order vacating a sentence of death is stayed pending
appeal. In support of each of these arguments, Defendants seek the entry of summary judgment
as to all pending claims. ECF No. 52.
The parties have filed extensive briefs and exhibits in support and in opposition to the
pending Motions for Summary Judgment, ECF Nos. 53, 55, 56, 59, 60 and 62, and the Motions
are ripe for review.
II.

STANDARD OF REVIEW
Summary judgment may only be granted “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(c). Pursuant to Rule 56, the court must enter summary judgment against the party “who
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A motion for summary judgment will only be denied when there is a genuine
issue of material fact, i.e., if the evidence is such that a reasonable jury could return a verdict for
the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). The mere existence

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of some disputed facts is insufficient to defeat a motion for summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In determining whether the dispute is genuine, the court’s function is not to weigh the
evidence, to determine the truth of the matter, or to evaluate credibility. The court is only to
determine whether the evidence of record is such that a reasonable jury could return a verdict for
the non-moving party. McGreevy, 413 F.3d at 363; Simpson v. Kay Jewelers, 142 F.3d 639, 643
n.3 (3d Cir. 1998) (citing Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)). In evaluating
the evidence, the court must interpret the facts in the light most favorable to the non-moving party,
and draw all reasonable inferences in its favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d
Cir. 2007). As to materiality, the relevant substantive law identifies which facts are material.
Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Id. “Factual
disputes that are irrelevant or unnecessary will not be counted.” Id. Further, inferences based upon
speculation or conjecture do not create a material factual dispute sufficient to defeat a motion for
summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
As indicated, each party has moved for the entry of judgment as a matter of law. However,
the standards under which a court grants or denies each party summary judgment do not change
by virtue of cross-motions being presented. Home for Crippled Children v. Prudential Insurance
Co., 590 F. Supp. 1490, 1495 (W.D. Pa. 1984). “On cross-motions for summary judgment, the law
in our Circuit is clear—the Court considers each Motion on its own merits, tested against the
standards of [Federal Rule of Civil Procedure 56].” U.S. Equal Employment Opportunity Comm’n
v. Bob Evans Farms, LLC, 275 F. Supp. 3d 635, 639 (W.D. Pa. 2017) (internal citations omitted).

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III.

DISCUSSION
A. Procedural Due Process Claim - 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). A liberty
interest may arise from the Constitution itself, by reason of guarantees implicit in the word
‘liberty,’ … or it may arise from an expectation or interest created by state laws or policies.” Id.
(internal citations omitted). The United States Supreme Court has recognized that with respect to
adverse conditions of confinement, the Constitution itself does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confinement, because “confinement … is within
the normal limits or range of custody which [a] conviction has authorized the State to impose.”
Id., quoting Meachum v. Fano, 427 U.S. 215, 225 (1976). Accordingly, “[t]he Due Process Clause
standing alone confers no liberty interest in freedom from state action taken within the sentence
imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995). However, a state-created liberty interest
in avoiding freedom from restraint may arise from state policies or regulations “which, while not
exceeding the sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Wilkinson, 545 U.S. at 222–23; and see
Williams, 848 F.3d at 559. Where a sufficient liberty interest is at stake, the Due Process Clause
requires meaningful procedural protections to permit periodic individualized assessment of the
asserted penological justification supporting continued exposure to atypical conditions.
In the instant case, Porter contests the validity of continuous confinement on death row as
imposing an atypical and significant hardship, and therefore a violation of his Fourteenth

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Amendment due process rights due to the absence of an individualized assessment justifying the
need for his placement.
Porter’s due process claims rely in large part upon the application of the precedential
opinion of the United States Court of Appeals for the Third Circuit in Williams, where after a
lengthy review of the conditions faced by inmates in the Pennsylvania DOC’s CCU and the “robust
body of scientific research” on the effects of solitary confinement, the Third Circuit unequivocally
concluded that with respect to inmates awaiting resentencing and no longer subject to active death
sentences, the Fourteenth Amendment requires procedural protections to ensure that continued
confinement to death row is imposed for legitimate penological purposes. Williams, 848 F.3d at
573. The Third Circuit went on to explain, “scientific research and the evolving jurisprudence
has made the harms of solitary confinement clear: Mental well-being and one’s sense of self are at
risk. We can think of few values more worthy of constitutional protection than these core facets
of human dignity.” Id. at 574. The Third Circuit made “clear what prison officials should have
already known: those no longer subject to the death penalty … have a due process right to be free
from indefinite conditions of solitary confinement.” Id. at 574-75. 4
In reaching its decision in Williams, the Third Circuit repeatedly acknowledged that it was
not deciding the issue of whether an inmate with an “active” death sentence had a liberty interest
that precluded confinement on death row without regular review. In footnote 2, the Third Circuit
noted that “Plaintiffs have both had their death sentences vacated but were nevertheless detained
in solitary confinement on death row. We take no position on whether any inherent risk posed by
inmates whose death sentences are still active and viable is sufficient to raise a presumption that

The two plaintiffs in Williams were in a significantly different position than Porter. There, the death sentences of
the two inmates were vacated but the inmates were kept in solitary confinement six and eight years, respectively,
until they were finally resentenced to life imprisonment and placed in general population.
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their continued confinement on death row is justifiable.” Id. at 553 n.2. The Court summarized its
holding as follows: “the Due Process Clause of the Fourteenth Amendment … limits the State’s
ability to subject an inmate to the deprivations of death row once the death sentence initially relied
upon to justify such extreme restrictions is no longer operative.” Id. at 552. So defined and limited,
if the June 26, 2003 Stay Order renders Porter’s death sentence still “active,” Williams informs
but is not dispositive as to Porter’s due process claim, for it acknowledges the “State’s ability to
subject an inmate to the deprivations of death row.” Id.
The State’s authority derives from Pennsylvania statutory provisions requiring that inmates
sentenced to death be subject to solitary confinement, with access to only staff of the department,
the inmate’s counsel of record, and a spiritual advisor. 61 Pa. C.S.A. § 4303. See fn. 2, supra. For
those inmates with an active death sentence, solitary confinement until death is a component of
the sentence imposed, and accordingly cannot give rise to the requisite expectation or interest in
typical conditions of confinement enjoyed by general population inmates to support a Fourteenth
Amendment claim. Williams, 848 F.3d at 569 (“[h]owever, [with regard to inmates confined to
death sentences that had not been vacated], those inmates were all confined pursuant to death
sentences that had not been vacated. Accordingly, confinement on death row was not a significant
or atypical hardship for them. Rather, it was expressly within the “expected perimeters of the
sentence imposed.”).
Further, through his pending post-conviction appeals, Porter continues to be afforded the
opportunity to challenge his death sentence and the terms of his confinement. This factor is
particularly relevant given the relief sought through his pending due process claim; i.e., procedural
protections to permit examination of the propriety of his confinement on death row. Under these

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circumstances, it cannot be said that Porter has been deprived of a liberty interest without adequate
process.
That said, if Porter is subject to a vacated death sentence that is no longer “active,” then
his claim falls squarely within Williams, and he has an established due process right to be free
from indefinite conditions of solitary confinement without periodic examination of the reasons for
continued placement on death row. Accordingly, the Court next considers the effect of the June
26, 2003 Stay Order to determine whether Porter has established a viable procedural due process
claim.
B. Procedural Due Process Claim - Effect of Stay Order
As explained by the United States Supreme Court in Nken v. Holder, 556 U.S. 418 (2009),
It takes time to decide a case on appeal. Sometimes a little; sometimes a lot. “No
court can make time stand still” while it considers an appeal, Scripps–Howard
Radio, Inc. v. FCC, 316 U.S. 4, 9, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), and if a
court takes the time it needs, the court’s decision may in some cases come too late
for the party seeking review. That is why it “has always been held, ... that as part
of its traditional equipment for the administration of justice, a federal court can
stay the enforcement of a judgment pending the outcome of an appeal.” Id., at 9–
10, 62 S.Ct. 875 (footnote omitted). A stay does not make time stand still, but
does hold a ruling in abeyance to allow an appellate court the time necessary to
review it.
Nken, 556 U.S. at 421. In contrast to an injunction, “a stay operates upon the judicial proceeding
itself. It does so either by halting or postponing some portion of the proceeding, or by temporarily
divesting an order of enforceability. See Blacks [Law Dictionary] at 1413 (6th ed. 1990) (defining
‘stay’ as ‘a suspension of the case or some designated proceedings within it.’).” Id. at 428.
The United States Supreme Court went on to distinguish between a stay pending appeal
and injunctive relief with regard to whether an order is presently viable:
A stay pending appeal certainly has some functional overlap with an injunction,
particularly a preliminary one. Both can have the practical effect of preventing
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some action before the legality of that action has been conclusively determined. But
a stay achieves this result by temporarily suspending the source of authority to act—
the order or judgment in question—not by directing an actor’s conduct. A stay
“simply suspend[s] judicial alteration of the status quo,” while injunctive relief
“grants judicial intervention that has been withheld by lower courts.”
Id. at 428–29.
In this case, Porter contends that the Stay Order vacating his death sentence places him in
the identical procedural posture of the vacated death sentences at issue in Williams, supra, where
both plaintiffs’ death sentences had been vacated, and the trial court awarded each of them a new
penalty hearing. ECF No. 56 at 10-12. However, in both cases, the State did not appeal the portion
of the Order vacating the sentences of death. Williams, 848 F.3d at 555-56. Given the State’s
failure to appeal the court’s invalidation of the death sentences, neither prisoner was subject to a
stay of an active sentence of death during the pendency of the appeals. Here, the District Court
stayed its order vacating Porter’s death sentence pending the specific appeal of the death sentence
portion of the order by the State which, pursuant to Nken, temporarily suspended “the source of
authority to act—the order or judgment in question.” Nken, 556 U.S. at 428-29. As such, the Stay
Order at issue here returns the matter “to the status quo – the state of affairs before the … order
was entered.” Id. Accordingly, the Stay Order did not achieve what Porter represents; rather,
Porter’s sentence of death remains unaltered pending the disposition of his federal appeal. Because
Porter is the subject of an active death sentence, Defendants are entitled to the entry of judgment
in their favor as to Porter’s Fourteenth Amendment procedural due process claim. 5

If the stay of the order vacating Porter’s death sentence is lifted, effectively resulting in the entry of the Order
vacating his death sentence, then Porter will no longer be subject to an active death sentence. At that time, Porter
would have the Fourteenth Amendment procedural due process right to avoid “unnecessary and unexamined solitary
confinement” as recognized by Third Circuit in Williams.

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C. Substantive Due Process Claim
Porter seeks the entry of summary judgment in his favor with regard to a Fourteenth
Amendment substantive due process claim, based upon his contention that Defendants’
indifference to the mental and physical impact of long-term solitary confinement is arbitrary and
shocks the conscience. ECF No. 56 at 15-16. In their cross-motion for summary judgment,
Defendants argue that Porter’s substantive due process claim is barred by the “explicit source rule,”
because the challenged conduct is properly addressed by the protections afforded under the Eighth
Amendment and Porter has not established an independent basis for his Fourteenth Amendment
substantive due process claim.

The Court agrees.

In Betts v. New Castle Youth Development Center, the United States Court of Appeals for
the Third Circuit explained the rule as follows:
Noting its “reluctan[ce] to expand the concept of substantive due process,” the
Supreme Court has established the “more-specific-provision rule.” County of
Sacramento v. Lewis, 523 U.S. 833, 843–44, 118 S.Ct. 1708, 140 L.Ed.2d 1043
(1998). Under this rule, “if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under the
rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7,
117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (clarifying prior holing in Graham v.
Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Supreme
Court explained the rationale behind the rule for Eighth Amendment claims in
Whitley v. Albers, where a prisoner shot in the leg during a prison riot filed both
Eighth Amendment and Fourteenth Amendment substantive due process claims
against prison officials:
[T]he Eighth Amendment, which is specifically concerned with the
unnecessary and wanton infliction of pain in penal institutions,
serves as the primary source of substantive protection to convicted
prisoners in cases such as this one, where the deliberate use of force
is challenged as excessive and unjustified. It would indeed be
surprising if, in the context of forceful prison security measures,
“conduct that shocks the conscience” or “afford[s] brutality the
cloak of law,” and so violates the Fourteenth Amendment, were not
also punishment “inconsistent with contemporary standards of
decency” and “‘repugnant to the conscience of mankind,’” in
violation of the Eighth.... [I]n these circumstances the Due Process
17

Clause affords respondent no greater protection than does the Cruel
and Unusual Punishments Clause.
475 U.S. at 327, 106 S.Ct. 1078 (internal citations omitted). Compare with County
of Sacramento, 523 U.S. at 843, 118 S.Ct. 1708 (rejecting application of morespecific-provision rule to substantive due process claim arising from high speed
police chase because facts were not within “search and seizure” protections of
Fourth Amendment).
Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010). In this instance, Porter
contends that he has a “due process liberty interest in avoiding the harsh conditions of solitary
confinement.” ECF No. 62 at 4. As defined by him, Porter’s substantive due process claims for
relief under the Fourteenth Amendment challenge the same conduct and conditions at issue under
his Eighth Amendment “cruel and unusual punishment” claim; in particular, Defendants’
deliberate indifference to the physical and psychological harms caused by long term solitary
confinement. Porter’s

substantive

due

process

claim

therefore

is

“covered”

by the Eighth Amendment, and Porter is foreclosed from simultaneously pursuing a substantive
due process claim. Therefore, Defendants’ Motion for Summary Judgment is granted on this basis.
D. Eighth Amendment Claim
Porter also presents an Eighth Amendment claim, challenging the extraordinary conditions
faced by him as an inmate confined in the CCU on Pennsylvania’s death row. Defendants seek
entry of judgment in their favor as a matter of law because: (1) Porter failed to file a grievance
specifically challenging his conditions of confinement on death row and therefore failed to exhaust
his claim as required by the PLRA; (2) there is no evidence of the personal involvement of either
Defendant in the creation or imposition of the conditions at issue; and, (3) Porter fails to establish
that he has been deprived of any of “the minimal civilized measure of life’s necessities.” ECF No.
53 at 14-24. For the reasons that follow, the Court denies Defendants’ Motion for Summary
Judgment on the basis of exhaustion and personal involvement, but finds that Porter has not
18

presented evidence to establish that Defendants were deliberately indifferent to a known
substantial risk of serious harm to Porter’s mental health due to the availability of substantial
psychological care, and the dearth of evidence that either Defendant was aware that the care
afforded to Porter was insufficient.
1. Exhaustion
The PLRA, 42 U.S.C. § 1997(e)(a), provides as follows:
No action shall be brought with respect to prison conditions under section 1983
of this title by a prisoner confined in jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.
The PLRA also mandates “proper exhaustion” of all the agency’s deadlines and other
procedural rules pertaining to its administrative remedy process. Woodford v. Ngo, 548 U.S. 81,
93 (2006). “‘[P]rison grievance procedures supply the yardstick’ for determining what steps are
required for exhaustion.” Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting Spruill v.
Gillis, 372 F.3d 218, 230 (3d Cir. 2004)). “[T]o properly exhaust administrative remedies,
prisoners must ‘complete the administrative review process in accordance with the applicable
procedural rules’” as they are “defined ... by the prison grievance process itself.” Jones v. Bock,
549 U.S. 199, 218 (2007) (quoting Ngo, 548 U.S. at 93). “[I]t is the prison’s [administrative
remedy] requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. at
218. Failure to comply substantially with the procedural requirements of the applicable prison's
grievance system will result in a procedural default of the claim. Spruill, 372 F.3d at 227–32; see
also Williams, 482 F.3d at 639 (inmate “procedurally defaulted” when he failed to comply with
the requirements of the prison’s grievance procedures). Of particular relevance here, “[t]he level
of detail necessary in a grievance to comply with the grievance procedures will vary from system
to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
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boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. at 218. In making this determination,
“exhaustion is a question of law to be determined by a judge, even if that determination requires
the resolution of disputed facts.” Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013).
The procedural requirements of the DOC Inmate Grievance System are set forth in Policy
DC-ADM 804 and, as relevant here, require an inmate to present a signed and dated grievance
containing the following information:
The text of the grievance must be legible, understandable, and presented in a
courteous manner. The inmate must include a statement of the facts relevant to the
claim.
a. The statement of facts shall include the date, approximate time, and location
of the events(s) that gave rise to the grievance.
b. The inmate shall identify individuals directly involved in the event(s).
c. The inmate shall specifically state any claims he/she wishes to make
concerning violations of Department directives, regulations, court orders,
or other law.
d. If the inmate desires compensation or other legal relief normally available
from a court, the inmate must request the specific relief sought in his/her
initial grievance.
ECF No. 55-2 at 145 (DC-ADM 804.1.A.11). On March 2, 2017, Porter submitted Inmate
Grievance No. 666916, stating a follows:
In accordance with the new recent Third Circuit Court Order in “Craig Williams v.
Dept. of Corrections”, where (they) the Court made it clear that all inmates
currently on death row that no-longer have a current legal death sentence should be
removed from death row!! Sadly, I am one of those inmates, and I have requested
to be removed from death row and allowed to move into general population.
However, to date I have not been removed from death row, and is illegally being
subjected to solitary confinement on death row. For which, failure from this day
forward to heel to the Court Order, I will sue the D.O.C. $5,000.00 for each day I
remain illegally on Death row.

20

Id. at 177 (emphasis in original). Porter received an initial decision denying his grievance and
request for relief, stating that while the DOC was aware of the Court’s decision, no change in DOC
policy had yet been announced. Id. at 179. The response further indicated that Porter was
receiving available mental health services, and that additional services were available if requested.
Id. Porter appealed the denial of his grievance to Defendant Gilmore, in his role as Superintendent
of SCI – Greene, and received a decision affirming the initial response. Porter submitted an appeal
to final review with the DOC Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”),
stating that he suffered declining mental health as a result of the conditions of his confinement,
and requesting an immediate transfer to general population. Id. at 180-188.
Defendants argue that despite Porter’s compliance with the administrative review process,
he failed to exhaust his Eighth Amendment claim related to confinement on death row because his
grievance challenging continued confinement in the CCU does not specifically invoke the phrase
“Eighth Amendment” or detail the allegedly cruel conditions of confinement. This argument fails.
Neither the prison’s grievance process nor legal precedent requires inmates to identify the precise
legal theory or statutory source of a claim, but merely to state the claim he or she wishes to raise
“concerning violations of Department directives, regulations, court orders, or other law.” Id. at
145. Porter plainly and clearly stated that he was “illegally being subjected to solitary confinement
on death row.” Id. at 177. In the grievance appeal process, he stated that he was “suffering the
deprivation associated with death row,” and that his “mental pain and suffering continues.” These
allegations were certainly sufficient to provide prison officials notice of the basis of his claim, and
a fair opportunity to address the underlying issue; i.e., Porter’s solitary confinement was causing
him harm. Notably, beginning with the initial response to Porter’s grievance, prison officials
including Defendant Gilmore reminded Porter that “a broad continuum of mental health services

21

is available to every inmate, regularly,” id. at 179, and that if he felt the need for additional services,
he should notify his counselor and/or the psychology department. Id. at 183. Based upon these
statements, it is clear that prison officials understood the scope of Porter’s grievance as including
the imposition of conditions of confinement causing or likely to cause harm to Porter’s mental
well-being.

Under these circumstances, Porter has appropriately exhausted administrative

remedies with regard to his Eighth Amendment claim, and Defendants’ Motion for Summary
Judgment on this basis is denied. See e.g., Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)
(“In determining whether exhaustion has been achieved, we have drawn an analogy between the
contents of an administrative grievance and notice pleading, explaining that ‘[a]s in a notice
pleading system, the grievant need not lay out the facts, articulate legal theories, or demand
particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.’”
Id., quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
2. Personal Involvement
To maintain a claim pursuant to 42 U.S.C. § 1983, each individual defendant “‘must have
personal involvement in the alleged wrongdoing.’” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.
2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Personal involvement
can be shown through allegations of personal direction or of actual knowledge and acquiescence.”
Rode, 845 F.2d at 1207.

In this instance, Defendants contend that summary judgment is

appropriate because Porter has failed to establish that either Wetzel or Gilmore was personally
involved in the complained of violations of his Eighth and Fourteenth Amendment rights.
The United States Court of Appeals for the Third Circuit recognizes two theories of
supervisory liability: first, individuals who are policymakers may be liable under Section 1983 if
it is shown they “with deliberate indifference to the consequences, established and maintained a

22

policy, practice or custom which directly caused the constitutional harm;” and, second, a
supervisor may be personally liable under Section 1983 if he “participated in violating the
plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of
and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004); Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016).
In this instance, it is apparent that the DOC policy at issue, establishing the challenged
conditions of confinement in the CCU, was implemented at the direction of Defendant Wetzel, as
Secretary of the DOC. See, e.g., Hall v. Wetzel, No. 17-cv-4738, 2018 WL 1035780 (E.D. Pa.
Feb. 22, 2018) (district court recognizing Defendant Wetzel’s role as Secretary of the DOC and
therefore responsible for establishing and implementing CCU policy); Shoatz v. Wetzel, No. 13cv-0657, 2016 WL 595337 (W.D. Pa. Feb. 12, 2016) (Defendant Wetzel acknowledged his role as
the sole decision-maker regarding the plaintiff’s solitary confinement); Johnson v. Wetzel, 209 F.
Supp. 3d 766, 779 (M.D. Pa. 2016) (“The record reflects that Secretary Wetzel knows well the
risks inherent in prolonged isolation. Secretary Wetzel agreed that ‘long term’ solitary confinement
‘certainly could’ have negative effects on mental health and that Johnson’s thirty-six year
confinement is ‘certainly’ considered long term.… Moreover, Secretary Wetzel stated that he is
familiar with the work of Dr. Haney, which sets forth at length the harmful effects of solitary
confinement. The court finds that Secretary Wetzel—the only defendant with authority to remove
Johnson from the RRL—knew of the significant mental health risks attending extended
isolation.”). In light of each of these prior federal court decisions recognizing Secretary Wetzel’s
role in implementing policies regarding the conditions of solitary confinement, Defendants’
Motion for Summary on the basis of personal involvement as to Secretary Wetzel is denied.

23

Similarly, the evidence of record establishes that Defendant Gilmore has acknowledged his
participation and acquiescence in Porter’s continued confinement. In his response to Porter’s
grievance, Gilmore stated that Porter “will remain housed in the Capital Case Unit until directed
otherwise.” ECF No. 55-2 at 183. In addition, Gilmore acknowledged the impact of solitary
confinement on Porter’s mental health, and volunteered that additional mental health services were
available upon request. Id.

Under these circumstances, Defendants’ Motion for Summary

Judgment on the basis of Superintendent Gilmore’s personal involvement is denied.
3. Conditions of Confinement
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.
Const. amend. VIII; Whitley v. Albers, 475 U.S. 312, 318–19 (1986). The United States Supreme
Court has held that this prohibition imposes affirmative duties on prison officials to “provide
humane conditions of confinement; prison officials must ensure that inmates receive adequate
food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the
safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer,
468 U.S. 517, 526-27 (1984)); and see Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015). It is
well settled that prison conditions constitute cruel and unusual punishment if they result in serious
deprivations of basic human needs. See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410 (3d
Cir. 2000). A condition of confinement implicates the Eighth Amendment if it is so reprehensible
as to be deemed inhumane under contemporary standards or if it deprives an inmate of minimal
civilized measures of the necessities of life. See Hudson v. McMillian, 503 U.S. at 8; Wilson v.
Seiter, 501 U.S. 294, 298 (1991).
To find that an official has violated the Cruel and Unusual Punishments Clause, “[he] must
have a ‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 834. “In prison-conditions cases

24

that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. This is a
subjective inquiry. “A prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of and disregards
an excessive risk to inmate health or safety; the 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.” Id. at 837. “In addition, prison officials who actually knew of a substantial risk
to inmate health or safety may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted. A prison official’s duty under the Eighth Amendment
is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’
‘unenviable task of keeping dangerous men in safe custody under humane conditions[.]’ Whether
one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot
be found liable under the Cruel and Unusual Punishments Clause.” Id. at 844-45.
Applying the above-noted established Eighth Amendment law to the facts of this case,
Porter must present evidence of both that he was subjected to inhumane conditions and, second,
that each Defendant knew or was aware that Plaintiff “faced a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.
Porter contends that the risk of harm of long term solitary confinement is both inhumane
and obvious. Certainly, societal standards in this regard have evolved over time. Porter relies upon
Williams, where the Third Circuit “first acknowledge[d] the robust body of legal and scientific
authority recognizing the devastating mental health consequences caused by long-term isolation
in solitary confinement. [W]e observed a growing consensus—with roots going back a century—
that [long term isolation] can cause severe and traumatic psychological damage, including anxiety,
panic, paranoia, depression, post-traumatic stress disorder, psychosis, and even a disintegration of

25

the basic sense of self identity. And the damage does not stop at mental harm: ‘Physical harm can
also result. Studies have documented high rates of suicide and self-mutilation amongst inmates
who have been subjected to solitary confinement. These behaviors are believed to be maladaptive
mechanisms for dealing with the psychological suffering that comes from isolation.”’ Palakovic
v. Wetzel, 854 F.3d 209, 225–26 (3d Cir. 2017) (quoting Williams 848 F.3d at 567–68 (internal
citations omitted)).
The obviousness of the risk alone, however, is not sufficient to impose liability. There
must also be evidence that despite Secretary Wetzel’s recognition that such “long term solitary
confinement certainly could have negative effects on mental health,” Johnson, 209 F. Supp. 3d at
779, and despite the various measures implemented to provide mental health treatment, both
Defendants were individually aware that Porter suffered a substantial risk of harm and yet were
deliberately indifferent. In this respect, Porter’s claim fails.
Furthermore, Porter certainly presents a wealth of recent legal opinions that the risk of long
term solitary confinement is obvious. Although this Court is certainly sympathetic to these risks,
as discussed in Williams, unfortunately, nowhere in the record before this Court has Porter
provided any evidence whatsoever of his alleged mental decomposition. There are no medical
records, no mental health records, no evidence of counseling sessions or treatment for suicidal
impulses provided to this Court. Further, the record establishes that because of the known risks of
solitary confinement, several measures are in place at the CCU at SCI – Greene, where Porter is
confined, to ensure the delivery of mental health treatment on a routine and frequent basis, as well
as emergency measures that could, if necessary, result in an inmate’s temporary removal from the
CCU for interactive psychiatric and psychological care. ECF No. 55-2 at 59-60. Porter fails to
present any evidence that these measures were utilized by him, or were unavailable to him, or even

26

that such measures would fail to ameliorate the harm alleged. Most critically, there is no evidence
that either of the Defendants were aware that the care afforded or available was insufficient so as
to place Porter at risk of further decline. 6
Summary judgment is appropriate if the nonmoving party provides merely colorable,
conclusory, or speculative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. There must
be more than a scintilla of evidence supporting the nonmoving party and more than some
metaphysical doubt as to the material facts. Id. at 252. “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In this
instance, and after extensive discovery, the evidence mustered by Porter in opposition to the
pending Motion for Summary Judgment fails to present a genuine issue for trial. Accordingly, the
Defendants’ Motion for Summary Judgment is granted. 7,8
IV.

CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed on behalf of

Defendants Pennsylvania Department of Corrections; John E. Wetzel, Secretary for Department
of Corrections; and Robert Gilmore, Superintendent of SCI – Greene, is properly granted. The

The Court is compelled to note that the absence of evidence in this case starkly contrasts with Johnson v. Wetzel,
209 F. Supp. 3d 766 (2016), where plaintiff similarly alleged severe psychological deterioration in his complaint,
but supported his allegations with a corroborating expert report and testimony of Dr. Craig Haney, a social
psychologist. The evidence of record established that the plaintiff “deteriorated to the point of social death as a
direct result of his continued isolation.” Id. at 778.
6

During a status conference with the parties, the Court discussed the pending class action lawsuit filed in the United
States District Court for the Middle District of Pennsylvania, challenging the conditions of confinement facing all
current and future death-sentenced prisoners in the Commonwealth of Pennsylvania. Reid v. Wetzel, No. 18-176
(M.D. Pa.). The Court’s conclusion that Porter remains subject to an active sentence of death necessarily places his
claims regarding the conditions of his confinement within the scope of the class action to permit further
consideration based upon evidence obtained therein.
7

In light of the disposition of Porter’s Eighth Amendment conditions of confinement claim, the Court does not reach
the issue of qualified immunity as a defense to Porter’s claim.

8

27

Motion for Summary Judgment filed on behalf of Plaintiff Ernest Porter is denied. Accordingly,
the following Order is entered:

ORDER
AND NOW, this 8th day of November, 2018, upon consideration of the Motion for
Summary Judgment filed on behalf of Defendants Pennsylvania Department of Corrections; John
E. Wetzel, Secretary for Department of Corrections; and Robert Gilmore, Superintendent of SCI
- Greene, and the Motion for Summary Judgment filed on behalf of Plaintiff Ernest Porter, as
well as the briefs and exhibits filed in support and in opposition thereto,
IT IS HEREBY ORDERED that the Motion for Summary Judgment filed on behalf of all
Defendants is GRANTED;
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of
Plaintiff is DENIED;
IT IS FURTHER ORDERED that the Clerk of Court is to mark the case closed; and
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, if the Plaintiff wishes to appeal from this Order he or she must do so within
thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P., with the Clerk
of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219.
BY THE COURT,

cc:

All counsel of record by Notice of Electronic Filing

28