“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
In November 2019, in Thomas v. Tice, Trump Third Circuit judge David Porter wrote a 2-1 opinion deciding that a prisoner’s dry cell confinement—confinement in a cell without access to plumbing facilities —was not a form of cruel and unusual punishment under the 8th Amendment. The dissent maintained that at least because of the “inhumane” conditions in this case, the court should have sent the case back to resolve factual issues on whether the defendants were responsible.
While he was confined in a Pennsylvania state prison, Briaheen Thomas received a visit from a friend in the visiting room. During the visit, Thomas ate an M&M from a bag his friend gave him and took a drink of soda. Guards, believing he might have ingested contraband, immediately handcuffed and transported Thomas to the so-called dry cell in the prison infirmary, where he stayed for nine days.
The conditions of Thomas’ confinement were particularly harsh as prison officials waited to see whether “natural processes” would produce any contraband. He had 12 bowel movements in four days as a result of taking laxatives, and was x-rayed and screened, but no illegal contraband was found. Still, he was forced to remain in the dry cell for five more days. Throughout that time. Thomas’ ill-fitting paper smock – the only item he was permitted to wear –was never replaced. Officials also repeatedly refused to give him a blanket, and his mattress was “soiled and did not have a slip covering, sheet, or pillow.” And in violation of prison policy, he was “repeatedly denied any means of cleaning himself,” including denying him “toilet paper, sanitizing wipes, or the opportunity to even wash his hands.” Thomas was also “handcuffed in a painful position” that “pained him at length, both during and after his dry cell stay.” No contraband was ever found.
Upon release, Thomas filed an administrative complaint and then a lawsuit, contending that prison officials violated his 8th Amendment right against cruel and unusual punishment, both because of the deplorable conditions and the duration of his confinement in the dry cell. The district court granted summary judgment against him and he appealed.
All three judges agreed that Thomas should have the opportunity to go to trial on the issue of whether he was required to stay in the dry cell too long. But Porter’s decision “perfunctorily” affirmed the dismissal of Thomas’ challenge to the conditions of his confinement because the particular prison officials who Thomas sued were allegedly “not involved.”
Judge Joseph Greenaway strongly dissented, arguing for a reversal on Thomas’ conditions of confinement claim. Judge Greenaway explained that there were “disputed issues of material fact” as to whether the officials knew about and were “personally involved in the many indecent conditions of Thomas’ dry cell,” and that there was “ample precedent” finding that similar conditions of confinement violated the 8th Amendment. Judge Greenaway concluded that the entire decision should be reversed, and that Thomas should have received a jury trial on all his claims.
As a result of Judge Porter’s opinion, however, Briaheen Thomas and others in the Third Circuit who want to similarly challenge the conditions of their confinement as violating the 8th Amendment will find that they cannot even get a jury trial on their challenges.
PFAW legal intern Oliver Telsuma researched and prepared the initial draft of this blog post.