New opinion: divided Third Circuit panel partially revives prisoner’s dry-celling suit

[The Third Circuit issued this opinion two days ago on November 12. I’m posting it later than usual due to an argument yesterday and a filing deadline the day before.]

Thomas v. Superintendent—prisoner rights—partial reversal—Porter

A peanut M&M.

A Pennsylvania prisoner named ate a peanut M&M that his visitor offered him during a visit in the prison’s visiting room. Now, peanut M&Ms are allowed in the visiting room. Hell, the peanut M&M he ate came from a prison vending machine in the visiting room. But one of the guards alleged suspicion that the prisoner had eaten, not a real peanut M&M, but instead a small, colored balloon with drugs inside in an effort to sneak drugs into the prison. The theory, with my apologies for indelicacy, is that the inmate would swallow the drug-filled balloon, poop it out later, and recover the drugs inside. So the prison decided to dry cell him:

A “dry cell” is a cell that lacks water—all standing water has been drained from the toilet, the room’s water supply has been shut off, and the sink and toilet have been capped to prevent inmate access. An inmate may be placed in a dry cell when prison staff have observed the inmate attempt to ingest an item of contraband or they learn that the inmate is attempting to introduce contraband into the prison. Dry cells are used to closely observe the inmate until natural processes allow for the ingested contraband to be retrieved. To this end, dry cells lack all linens and moveable items other than a mattress, inmates’ clothes are exchanged for a simple smock, and their movements are carefully controlled to prevent them from concealing or disposing of any retrievable contraband.

To expedite his release from the dry cell, Thomas was offered laxatives, which he accepted. Over the next four days, Thomas had twelve bowel movements. No evidence of any contraband was found in any of Thomas’s bowel movements. Prison staff also x-rayed Thomas on June 1. The x-ray revealed no contraband.

And, yes, “lack all linens and moveable items other than a mattress” does mean no toilet paper and no soap, if you’re wondering. Now one might suppose that, after 4 days and












12 bowel movements, any justification for keeping the poor inmate in this appalling confinement was gone. But four prison officials—Eric Tice, Mark Garman, Timothy Miller, and Heather Halderman—decided otherwise.  Based on their decision, the inmate was dry celled for five more days, nine days total.

So he sued ’em.

The district court granted summary judgment in favor of the defendants. The Third Circuit reversed in part. It revived his Eighth Amendment challenge to the duration of his confinement, but upheld summary judgment on the conditions of confinement on the ground that there was no evidence that the defendants he sued were personally involved in those deprivations.

Joining Porter was Shwartz. Judge Greenaway dissented (is “fierily” a word?), arguing that affirming on the conditions claim reflects a “glaring error.” Arguing counsel were former Restrepo clerk James Davy, now of Equal Justice Under Law, for the inmate and Sean Kirkpatrick of the Pennsylvania AG’s office for the prison officials.