For 468 days between December 2010 and March 2012, and for 143 days between September 2012 and February 2013, the Massachusetts Department of Correction (DOC) forced Jwainus Perry to spend at least 23 hours a day alone in a tiny, windowless cell. As Mr. Perry has shown, federal decisions issued before Mr. Perry’s confinement confirmed that he was entitled to procedural due process before and while being trapped in such conditions.
Yet the district court and a panel of the First Court concluded that DOC officers were entitled to qualified immunity for failing to provide Mr. Perry with the procedural protections that the constitution requires. The courts reached their conclusions after citing LaChance v. Commissioner of Correction, 463 Mass. 767 (2012), a case decided by the Massachusetts Supreme Judicial Court in November 2012, nearly two years after the start of Mr. Perry’s solitary confinement. LaChance recognized that incarcerated individuals accrue due process protections after 90 days of solitary confinement—the very right Mr. Perry advances here—but held that this right had not been clearly established before the November 2012 decision in LaChance itself.
As argued in this amicus brief filed on March 14, 2022 before the First Circuit by the ACLU and ACLU affiliates in Massachusetts, Maine, Rhode Island, and New Hampshire, when viewed against the rationale that has been articulated for a qualified immunity defense—namely, notice based on case law at the time of the challenged conduct—the LaChance decision cannot support the application of immunity here. LaChance was decided well into the deprivation of Mr. Perry’s rights. As the brief explains, on the merits, its holding supports Mr. Perry’s claim that he had a procedural due process right against the arbitrary imposition of lengthy solitary confinement.