No. 16-2444

JWAINUS PERRY,

Plaintiff, Appellant,

v.

LUIS S. SPENCER, Commissioner; THOMAS DICKHAUT, Former Superintendent; ANTHONY M. MENDONSA, Former Deputy of Classification; JAMES J. SABA, Superintendent; ABBE NELLIGAN, Deputy of Classification; PATRICK TOOLIN, Correctional Program Officer; KRISTIE LADOUCEUR; CAROL MICI; THOMAS NEVILLE,

Defendants, Appellees,

JENS SWANSON, Property Officer,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. M. Page Kelley, Magistrate Judge]

Before

Barron, Chief Judge, Lynch, Howard, Thompson, Kayatta, Gelpí, Circuit Judges.

Rosalind E. Dillon, with whom Daniel Greenfield, Alexis Garmey Chardon, Roderick & Solange MacArthur Justice Center, and Terry Garmey & Associates were on brief, for appellant.

Nancy Ankers White, Special Assistant Attorney General, with whom Sheryl F. Grant, Counsel, and Mary Eiro-Bartevyan, Counsel, were on brief, for appellees. Claudia Pare, Melissa Giangrande, Matthew Marchiori, and Hogan Lovells US LLP on brief for amici curiae Former Corrections Officials.

John P. Bueker on brief for amicus curiae Prisoners' Legal Services.

Mary B. McCord, Kelsi Brown Corkran, Amy Marshak, Seth Wayne, Shelby Calambokidis, and Institute for Constitutional Advocacy and Protection on brief for amici curiae Current and Former Prosecutors and Department of Justice Officials.

Nancy Gertner on brief for amici curiae Center for Law, Brain, and Behavior and Neuroscientists.

John J. Butts, Nina B. Garcia, Hannah E. Gelbort, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for amici curiae Terry Kupers, Craig Haney, Pablo Stewart, and Stuart Grassian.

Jennifer A. Wedekind, Carol J. Garvan, Zachary L. Heiden, Gilles R. Bissonnette, Matthew R. Segal, Jessie J. Rossman, Areeba Jibril, and Lynette Labinger on brief for amici curiae American Civil Liberties Union and its state affiliates.

Jaime A. Santos, William E. Evans, and Goodwin Procter LLP on brief for amicus curiae Professor John F. Stinneford.

Clark M. Neily III and Jay R. Schweikert on brief for amicus curiae Cato Institute.

February 21, 2024

Opinion En Banc BARRON, Chief Judge. This appeal concerns Jwainus Perry's challenge to the grant of summary judgment on his claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV, § 1 ("[N]or shall any state deprive any person of . . . liberty . . . without due process of law."). Perry brought the claim in the United States District Court for the District of Massachusetts pursuant to 42 U.S.C. § 1983 against officials of the Massachusetts Department of Corrections ("DOC"). He alleges that the DOC officials violated his right to procedural due process by depriving him of "liberty . . . without due process of law" during a portion of his life sentence for first-degree murder under Massachusetts law. He alleges that the DOC officials did so by placing him in solitary confinement for a total of nearly two years without affording him either notice of the factual basis for that confinement or an opportunity for rebuttal.

The District Court granted summary judgment to the defendants based on qualified immunity after determining that, at the relevant time, clearly established law did not treat such prolonged solitary confinement as a deprivation of a liberty interest that the Due Process Clause protects. Perry v. Spencer, No. 12-CV-12070, 2016 WL 5746346, at *16 (D. Mass. Sept. 30,