2013.02.20 - opening brief

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

| THOMAS SILVERSTEIN, | | Plaintiff-Appellant, | No. 12-1450 v. | | FEDERAL BUREAU OF PRISONS, | et al., | | Defendants-Appellees. | |

On Appeal from the United States District Court for the District of Colorado The Honorable Philip A. Brimmer

D.C. No. 1:07-cv-02471

APPELLANT’S OPENING BRIEF

Laura Rovner Brittany Glidden Attorneys for Plaintiff-Appellant STUDENT LAW OFFICE Univ. of Denver Sturm College of Law 2255 E. Evans Ave. Denver, CO 80208 Phone: 303.871.6140 Fax: 303.871.6847

ORAL ARGUMENT IS REQUESTED

Appellate Case: 12-1450 Document: 01019005796 Date Filed: 02/20/2013 Page: 1

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TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION ............................................................... 8 II. STATEMENT OF THE ISSUES .................................................................... 8 III. STATEMENT OF THE CASE ....................................................................... 9 IV. STATEMENT OF THE FACTS ................................................................... 10

A. The BOP has held Mr. Silverstein in extreme isolation for three decades. 11

B. The use of solitary confinement is increasingly being condemned nationally and internationally. ...................................................................... 12

C. Mr. Silverstein’s living conditions deprive him of the basic human needs of

human interaction and environmental stimulation. ...................................... 15

D. Mr. Silverstein has suffered harm as a result of his thirty years in solitary confinement. ................................................................................................. 21

1. Depression and Anxiety Disorder .............................................................. 23

2. Memory Loss and Cognitive Impairment .................................................. 28

3. The Parties Disputed Whether Mr. Silverstein Has Been Harmed. ........... 30

4. The district court made a factual finding that ignored evidence of harm. . 32

E. Mr. Silverstein is at substantial risk of future harm if he remains in isolation. ................................................................................................... 33

1. Research demonstrates that long-term isolation creates a significant risk of harm. ............................................................................................................ 33


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2. Mr. Silverstein’s experience demonstrates that he is at risk of future harm if the BOP continues to confine him in isolation. ............................................ 37

3. The BOP disputed that Mr. Silverstein is at risk of future harm. ................ 39

4. The district court erroneously resolved a factual dispute by finding that Mr.

Silverstein is not at risk of future harm. ....................................................... 40 V. SUMMARY OF THE ARGUMENT .............................................................. 40 VI. ARGUMENT ................................................................................................ 42 Issue preservation and standard of review .............................................................. 42 The Eighth Amendment standard ........................................................................... 43

A. The District Court erred by resolving a factual dispute in favor of the moving party in determining Mr. Silverstein has not been harmed by the deprivation of human interaction and environmental stimulation during his thirty years in isolation. ................................................................................ 45

B. The District Court erred in refusing to consider twenty-two years of

evidence, even though Mr. Silverstein challenges the duration and totality of his three decades in isolation under the Eighth Amendment. ...................... 51

C.The District Court erred as a matter of law by ignoring Supreme Court

precedent holding risk of harm is sufficient to establish an Eighth Amendment violation or, alternatively, by resolving a factual dispute by ignoring substantial evidence that Mr. Silverstein is at risk of harm. ............................ 58

1. The District Court Erred as a Matter of Law by Not Examining Whether Mr.

Silverstein was at Substantial Risk of Harm. ............................................... 60

2. In the alternative, the District Court erred by resolving a factual dispute—whether Mr. Silverstein is at substantial risk of serious harm—in favor of the moving party. ................................................................................................ 62


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VII. CONCLUSION ............................................................................................. 65 VIII. STATEMENT OF COUNSEL AS TO ORAL ARGUMENT ..................... 66 CERTIFICATE OF COMPLIANCE WITH WORD COUNT .............................. 66 CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS 66 CERTIFICATE OF COMPLIANCE WITH FILING VIA ECF ............................ 66 CERTIFICATE OF SERVICE ............................................................................... 68 ATTACHMENTS TO BRIEF IN WRITTEN AND DIGITAL FORM:

1. Silverstein v. BOP, et al., 1:07-cv-02471-PAB-KMT, Order Granting Summary Judgment

2. Silverstein v. BOP, et al., 1:07-cv-02471-PAB-KMT, Final Judgment

3. Silverstein v. BOP, et al., 1:07-cv-02471-PAB-KMT, Order


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TABLE OF AUTHORITIES

CASES

Allen v. Avance, 491 Fed.Appx. 1 (10th Cir. 2012) ................................................ 53 Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................. 44 Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998) ....................................... 54, 55 Benefield v. McDowall, 241 F.3d 1267 (10th Cir. 2001) ................................. 61, 62 Brown v. Narvais, 265 Fed. 734 (10th Cir. 2008) .................................................. 62 Craig v. Eberly, 164 F.3d 490 (10th Cir. 1998) ..................................................... 54 DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001) ........................................... 46, 54 Farmer v. Brennan, 511 U.S. 825, 832 (1994) ................................................ passim Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) .......................................................... 55 Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................. 44 Harris v. Fleming, 839 F.2d 1232 (7th Cir.1988) .................................................. 55 Helling v. McKinney, 509 U.S. 25 (1993) ....................................................... passim Hope v. Pelzer, 536 U.S. 730 (2002) ...................................................................... 45 Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008) ................................................ 60 Hudson v. McMillian, 503 U.S. 1 ..................................................................... 49, 59 Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999) .................................................... 58 Hutto v. Finney, 437 U.S. 678 (1978) ......................................................... 44, 53, 59 In re Medley, 134 U.S. 160 (1890) ......................................................................... 34 Johnson v. Lewis, 217 F.3d 726 (9th Cir. 2000) ............................................... 54, 55


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Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005) .......................... 43 Madrid v. Gomez, 889 F. Supp. 1146 (1995) ................................................... 59, 60 McClary v. Kelly, 4 F.Supp.2d 195, 208 (W.D.N.Y. 1998) ................................... 47 Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996) ............................................. 54 O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093 (10th Cir. 1999) .................... 43 Ogbolu v. McLemore, 107 F.3d 21 (10th Cir. 1997) .............................................. 55 Penry v. Lynaugh, 492 U.S. 302 (1989) ................................................................. 45 Perkins v. Kansas Dep’t of Corr., 165 F.3d 803 (10th Cir. 1999) ......................... 45 Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) ............................................... 59, 62 Rhodes v. Chapman, 452 U.S. 337 (1981) ............................................................. 44 Roper v. Simmons, 543 U.S. 551 (2005) ................................................................. 44 Ruiz v. Johnson, 154 F.Supp.2d 975 (S.D. Tex. 2001) ........................................... 47 Shannon v. Graves, 257 F.3d 1164 (10th Cir. 2001) .............................................. 59 Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir. 2002) ......... 43 Stack v. McCotter, 79 Fed.383 (10th Cir. 2003) ..................................................... 44 Stinnett v. Safeway, Inc., 337 F.3d 1213 (10th Cir. 2003) ...................................... 43 Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976 (10th Cir. 2002) .............. 43 Trop v. Dulles, 356 U.S. 86 (1958) ......................................................................... 44 White v. Nix, 7 F.3d 120 (8th Cir. 1993) ................................................................. 55 Whitnack v. Douglas County, 16 F.3d 954 (8th Cir. 1994) .................................... 55 Wilkerson v. Stalder, 639 F.Supp.2d 654, 679 (M.D. La. 2007) .......................... 47


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STATUTES 28 U.S.C. § 1291 ....................................................................................................... 8 28 U.S.C. § 1331 ....................................................................................................... 8 28 U.S.C. §1343(a)(4) .............................................................................................. 8 28 U.S.C. §1346 ........................................................................................................ 8 28 U.S.C. § 2201 ....................................................................................................... 8 28 U.S.C. § 2202 ....................................................................................................... 8 42 U.S.C. § 12102(2) .............................................................................................. 31


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PRIOR OR RELATED APPEALS

There are no prior or related appeals.


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I. STATEMENT OF JURISDICTION

Jurisdiction in the district court was proper pursuant to 28 U.S.C. §§ 1331,

1343(a)(4), 1346, 2201, and 2202. On October 3, 2011, the district court entered

final judgment in the case, dismissing and disposing of all of his claims. (MSJ

Opinion, 001974-76.) On September 13, 2012, the district court denied all post-

trial motions in a final, appealable order. (Order, 002148-60.) This Court has

jurisdiction under 28 U.S.C. § 1291.

II. STATEMENT OF THE ISSUES

1. Did the District Court err by resolving a factual dispute in favor of the

moving party in determining that Mr. Silverstein has not been harmed by his thirty

years of solitary confinement?

2. Did the District Court err in ignoring evidence of twenty-two years of Mr.

Silverstein’s isolation, even though he challenges the duration and totality of his

thirty years in solitary confinement as cruel and unusual?

3. Did the District Court err as a matter of law by ignoring Supreme Court

precedent holding that risk of harm is sufficient to establish an Eighth Amendment

violation, or, in the alternative, by resolving a factual dispute in favor of the

moving party by ignoring substantial evidence that Mr. Silverstein is at risk of

harm?


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III. STATEMENT OF THE CASE

This case seeks to end 30 years of extraordinary, unprecedented, and

apparently unending isolation. Mr. Silverstein, now 61 years old, has been in

solitary confinement for thirty years, a period that represents half of his entire life.

During that time, he has been subjected to conditions of solitary confinement that

are, in the words of one prison mental health expert, “truly severe.” (Haney Rpt.,

001114.) Dr. Craig Haney testified that “in my experience—as someone who has

inspected, studied, and written about such conditions in prison systems throughout

the United States over the last 30 years—they are unprecedented. . . . Not only has

[Mr. Silverstein] been subjected to the most extreme forms of isolation I have ever

seen—placed in housing units that were literally designed to isolate him as

completely as possible from other human beings—but he also has been confined in

these places for an extraordinary length of time.” (Id., 001132)

Mr. Silverstein claims that his extended and indefinite isolation violates the

Eighth Amendment because it is cruel and unusual punishment. This case presents

two factual questions: 1) whether thirty years of isolation from human contact and

environmental stimulation has harmed Mr. Silverstein, and; 2) whether continuing

to hold him in solitary confinement places him at risk of future harm. Rather than

allowing these factual disputes to go to trial, the district court resolved these them


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in favor of the moving party, finding that Mr. Silverstein was neither harmed by

such unprecedented isolation, nor is he at risk of future harm.

The decision by the district court ignored the length of the deprivation

suffered by Mr. Silverstein and overlooked significant evidence in the record that

demonstrated both actual harm and an almost certain risk of future harm. Mr.

Silverstein provided evidence that his extreme isolation has caused—and continues

to cause—him significant psychological damage: it has caused a diagnosed mental

health condition, severe depression and anxiety, and documented cognitive

impairment. He continues to suffer harm from the BOP-imposed conditions, and

that harm will continue and likely worsen as he ages, putting him at substantial

risk, unless and until his isolation is lessened. Expert testimony presented to the

district court established that the risk of future harm is significant, demonstrating

the striking prevalence of a constellation of harms suffered by people who have

been subjected to prolonged solitary confinement.

The district court, however, in largely unexplained conclusions, ignored this

evidence and held that there were no genuine issues of material fact.

IV. STATEMENT OF THE FACTS

The record in this case contains extensive evidence documenting the three

decades that the BOP has confined Mr. Silverstein in isolation. While there are


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many disputes of fact in this case, this appeal addresses those in two key areas

where the district court decided contested issues in favor of the BOP.

First, there was a dispute as to whether—in light of the severity and duration

of Mr. Silverstein’s solitary confinement, as well as the recorded impact on his

mental health—he has been harmed as a result of his extreme isolation. Second,

there is a dispute as to whether these conditions place Mr. Silverstein at substantial

risk of serious harm in the future. On each of these issues, the district court found

that no dispute of fact existed and relied on those findings to enter judgment in

favor of the non-moving party.

A. The BOP has held Mr. Silverstein in extreme isolation for three decades. Mr. Silverstein was placed in solitary confinement, under a BOP-imposed

“no human contact” order, following the murder of Correctional Officer Merle

Clutts in 1983. (BOP Memo, 002431; Earley Decl. ¶¶ 58-61, 000778.) In the

years that followed, BOP officials stated that Mr. Silverstein should have been “put

down” but since they could not execute him, “no human contact” status meant that

he had “lost his right to live in ‘our world.’” (Earley Decl. ¶¶ 56, 60-61, 000778.)

Although the record shows that Mr. Silverstein has maintained clear conduct since

1988 (Silverstein Decl. ¶ 233, 002353), the BOP has continued to hold him in

isolation longer than any other federal prisoner in the United States.


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While Mr. Silverstein has been held in a variety of locations and forms of

isolation over the past thirty years, all of these conditions were always as—or

more—onerous1 as what the correctional literature refers to as “classic conditions

of solitary confinement.” (Haney Rpt., 001116.) As Dr. Haney explains in his

report, these conditions include:

[S]egregation from the mainstream prisoner population in attached housing units or free-standing facilities where prisoners are involuntarily confined in their cells for upwards of 23 hours a day or more, given only extremely limited or no opportunities for direct and normal social contact with other persons (i.e., contact that is not mediated by bars, restraints, security glass or screens, and the like), and afforded extremely limited if any access to meaningful programming of any kind.

(Id.)

B. The use of solitary confinement is increasingly being condemned nationally and internationally. These “classic” solitary confinement conditions have come under increased

scrutiny and condemnation by numerous groups—including the U.S. Congress,

mental health professionals, human rights organizations, state legislatures, and

international human rights bodies.

Some states have passed legislation limiting the duration of solitary

confinement placement. (Hearing Tr., 002084 (“a number of states are starting to

1 There have been lengthy periods during his thirty years of isolation in which Mr. Silverstein’s conditions were even more extreme. (Haney Rpt., 001116.) While his isolation and lack of stimulation have remained constant, Mr. Silverstein has been housed in five different units over the past thirty years: Atlanta (1983-1987); Leavenworth in the basement (1987-1989); Leavenworth in a cell specially designed to comply with the


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reassess solitary confinement . . . They’ve implemented reforms and reduced the

use of solitary, lowering prison violence, and [the] recidivism rate, saving millions

of dollars.”)) For example, Colorado has greatly reduced the use of solitary

confinement, enacting legislation that limits who can be placed in long-term

isolation. (Proposed Law, 001773-85 (adopted and awaiting signature); Post

Article, 002039.) A number of states have either passed laws restricting the use of

solitary confinement, or are reassessing its use, including: Maine (001768-71,

002028-29); California (002041-42); New York (001764-66); Virginia (002033,

002044); Texas (002035-37); New Mexico (001790-96), and New York City

(001787-88).

Most recently, on June 19, 2012, the United States Congress held a hearing

concerning the use and effects of long-term solitary confinement in the Bureau of

Prisons. (See generally Hearing Tr., 002082-117.) The committee, chaired by

Assistant Majority Leader Dick Durbin, took written and oral testimony from a

number of organizations and individuals (Id., 002082-85), including from Dr.

Haney, who is a nationally recognized expert on the topic of solitary confinement

(Id., 002102-03). At this hearing, numerous groups and individuals submitted

testimony regarding the use of extended solitary confinement. (Id., 002116; see

also 60(b) Mot., 002074.) The submissions were from government officials,

physicians, psychologists, former prisoners, and citizens, most of which advocated


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against the use of extended isolation. (60(b) Mot., 002074.) Senator Durbin

expressed concern with the long-term use of solitary confinement, in particular

with its negative mental health effects on those who are held in isolation. (Hearing

Tr., 002083.) He noted that the use of solitary confinement is a human rights issue

and that some people “who may not have had any psychological problems before

isolation can be driven into a psychosis or suicidal state.” (Id., 002084.) The

committee is presently considering whether to propose federal legislation to limit

the use of solitary confinement.

These federal and state hearings reveal that the overwhelming consensus of

those who have studied solitary confinement have expressed concern about its use.

Psychologists and other mental health professionals condemn prolonged isolation

for its potential to cause significant damage to mental health. (APA Testimony,

002120-22; Psychologists for Social Responsibility Testimony, 001748-49.)

People who have been held in long-term isolation assert that it is an extremely

painful form of psychological torture. (Shourd Article, 002048-50; see also

NRCAT Testimony, 002125-27.) As Senator Durbin noted during the

congressional hearing he held on solitary confinement, “our colleague and former

POW, Senator John McCain, who has lived it, said, ‘it’s an awful thing, solitary, it

crushes your spirit and weakens your resistance more effectively than any form of

mistreatment.’” (Hearing Tr., 002084.) Even correctional professionals have


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increasingly spoken out about the harm caused by solitary confinement,

questioning the necessity of and benefit from its use. (Epps Testimony, 002144-

46.)

This trend of negative reactions to the use of long-term solitary confinement

in the United States follows an international trend. (See, e.g., UN Convention,

001699-1709, Eur. Ct. Dec., 001798-1813.) For example, in 2011, the U.N.

Special Rapporteur on Torture issued a statement calling for an “absolute

prohibition” of solitary confinement in excess of fourteen days, citing concerns

about the mental health of prisoners. (Article, 002046; NY Times Article, 002063-

65.)

C. Mr. Silverstein’s living conditions deprive him of the basic human needs of human interaction and environmental stimulation. While the UN has urged prohibiting the use of solitary confinement for more

than two weeks, the BOP has held Mr. Silverstein in segregation for the past thirty

years. Indeed, the conditions of Mr. Silverstein’s isolation and its length are

unprecedented. In his declaration, Dr. Haney described his conditions as “the most

isolated form of long-term solitary confinement I have ever encountered.” (Haney

Rpt., 001114.) Steve Martin, a correctional expert, concurred, stating that Mr.

Silverstein’s “near total isolation from all human contact is unprecedented in my

38 years’ experience in corrections.” (Martin Decl. ¶ 5, 000836.) Even the BOP


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acknowledged that it is unaware of any other person who has been held in such

restrictive conditions for such a long period of time. (Fox Depo., 001405.)

Since 1983, he has spent at least 23 hours a day in an isolation cell—the size

of a small bathroom—with five days a week during which he is permitted to

exercise alone for a short period. (Silverstein Decl. ¶¶ 235, 240, 002353-54.)

Currently, Mr. Silverstein is held in ADX, the only federal “supermax” prison.

(Samuels Test., 002094.) His ADX cell is 87 square feet—smaller than a Chevy

Suburban. (Id. ¶ 215, 002349; Diagram, 001472.) The cell contains a concrete

bed, a concrete desk and stool, a metal sink/toilet unit, and a shower. (Silverstein

Decl. ¶ 215, 002349.) When Mr. Silverstein eats his meals, he is alone in his cell,

within arm’s reach of his toilet. (Id. ¶ 239, 002354.) There is very little variation

in what he can see or experience, where he can go and what he can do. (Id. ¶¶ 240,

243, 246, 002354-55.) As described by Dr. Haney, “[t]he unremitting sameness or

constancy of [Mr. Silverstein’s] day-to-day existence can result in, or contribute to,

depression and cognitive deterioration.” (Haney Decl. ¶ 19, 001065.)

While the exact size and details of each of his cells have varied, the overall

isolation that has characterized Mr. Silverstein’s conditions for the past thirty years

is remarkably consistent, especially with respect to what Dr. Haney has referred to

as the “essence” of solitary confinement: “the near total deprivation of meaningful

human social contact.” (Id. ¶ 8, 001063.) For over a quarter century, Mr.


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Silverstein has not had a face-to-face interaction with any other people unfettered

by glass, bars, chains, or other restraints. (Id. ¶ 10, 001064.) And the BOP has

consistently sought to restrict even the very minimal contact Mr. Silverstein has

with other people—including other prisoners, correctional staff, and any possible

visitors. (Haney Rpt., 001133; Housing Rpt., 002400; Silverstein Decl. ¶ 220,

002351.) Even his ability to contact other people by phone or to have non-contact

visits is severely curtailed by the BOP (Silverstein Decl. ¶¶ 228, 238, 002351,

002354), despite agreement from both parties’ experts that increased pro-social

contacts would benefit Mr. Silverstein (Bursztajn Rpt. ¶ M, 001636-37; Haney

Decl. ¶ 19, 001066.)

For example, while prison policy states that he has the “opportunity” for five

social visits per month, for decades the BOP has repeatedly denied Mr.

Silverstein’s requests for visitors. (Example Denials, 002433-36; Housing

Reviews, 000815, 000825-26.) The policy precludes a prisoner from visiting with

anyone who he did not know prior to incarceration. (Id.) The BOP has regularly

denied Mr. Silverstein access to visits, even though the policy permits exceptions

to the “prior relationship rule,” “particularly for inmates without other visitors,

when it is shown that the proposed visitor is reliable and poses no threat to the

security or good order of the institution.” (Id.; Silverstein Decl. ¶ 238, 002354;

Housing Reviews, 000815, 000825-26.) Because Mr. Silverstein entered prison at


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eighteen, and because the BOP has consistently refused to grant him an exception

to the policy (even for visitors who meet the BOP’s stated criteria), he has gone

years without a social visit. (Id.)

Additionally, in each cell in which Mr. Silverstein has been confined, he has

had essentially no ability to communicate with other prisoners. (Silverstein Decl.

¶¶ 80, 126, 142, 146, 175-77, 208, 002325, 002332, 002336, 002342-43, 002348.)

For decades, he was held in cells where he could not see or hear other prisoners at

all, in cells specially constructed for that purpose. (Haney Rpt., 001133; Housing

Rpt., 002400; Silverstein Decl. ¶ 220, 002351.) Currently, Mr. Silverstein remains

on a solitary confinement range at ADX, where each prisoner is separated from the

others by steel doors and solid walls. (See Silverstein Decl. ¶¶ 208, 240, 002348,

002354.) In this environment, Mr. Silverstein has no ability to have meaningful

communication with other prisoners. (Id. ¶¶ 208, 237, 002348, 002354; Haney

Decl. ¶¶ 8-11, 001063-64.) Dr. Haney describes the significance of this

deprivation as follows: “Like the rest of us…prisoners are social beings who,

although they vary in their levels of sociability are nonetheless dependent on social

context and interaction with others to remain psychologically grounded…Long-

term isolated prisoners are literally at risk of losing their grasp on who they are, of

how and whether they are connected to a larger social world.” (Haney Rpt.,

001123.)


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Likewise, Mr. Silverstein’s conditions are also designed to minimize his

contact with prison staff. (Haney Rpt., 001133-34; Housing Rpt., 002400.) Of

course, zero interaction with staff is impossible; as Dr. Haney points out in his

declaration, there is no such thing as “complete isolation” in the correctional

system: “‘[s]olitary confinement’ is a term of art in correctional practice and

scholarship. For perhaps obvious reasons, total and absolute solitary

confinement—literally complete isolation from any form of human contact—does

not exist in prison and never has.” (Haney Rpt., 001116.) Prisoners in segregation

cells are dependent on staff for minimal daily needs, for example, to bring them

food and medicine.

But these forced, perfunctory exchanges with correctional staff do not

provide Mr. Silverstein with meaningful human contact and social interaction.

(Haney Decl. ¶¶ 8-11, 001063-64.) As an initial matter, Mr. Silverstein’s actual

daily contact with staff has always been extremely limited. (Contact Chart,

001421.) Even the BOP does not dispute that these contacts average less than a

minute per day. (Id.) And none of these interactions can be characterized as

“normal,” as there always exists a physical impediment or barrier interposed

between Mr. Silverstein and staff (handcuffs, steel door, bars, etc.). (Haney Decl.

¶ 9, 001064.) The interactions themselves are “typically brief and highly ritualized

– staff deliver food trays, place prisoners in uncomfortable physical restraints, peer


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into their cells as they go by, ‘count’ them, and so on.” (Id. ¶ 12, 001064-65.) As

Dr. Haney explained, “[t]hese are ‘enactments’ of institutional routines rather than

spontaneous interactions.” (Id.) Additionally, officers often simply will not engage

with prisoners, or are openly hostile. (Id. ¶ 11, 001064; Earley Decl. ¶¶ 16-26, 65-

67, 00072-74, 000779, 000796; Rideau Memoir, 001675-76; Silverstein Decl. ¶¶

83, 86, 114, 127, 139, 161-62, 223-26, 002325-26, 0002330, 002333, 002335,

002339-40, 002351-52.) Ultimately, “the fundamental psychological divide” that

exists between prisoners and correctional staff is, as Dr. Haney testified,

“unbridgeable.” (Haney Decl. ¶ 11, 001064.).

In sum, Mr. Silverstein has been subjected to severe and prolonged

isolation—the deprivation of meaningful social contact and environmental

stimulation—for over thirty years. During that period, Mr. Silverstein has never

known how long this denial of human contact will last and what, if anything, he

can do to modify or end it. (Haney Decl. ¶ 47, 001075; Silverstein Decl. ¶ 202,

002348, ¶ 231, 002353 (“Every denial feels like I have just run a marathon and

have been told to run it all over again. And again. It is one step forward and two

steps back.”); Housing Reviews, 000816, 000819, 000823-34.) “This chronic

uncertainty exacerbated the stress of his confinement.” (Haney Rpt., 001114.)

Recent documentation suggests that the BOP intends to hold Mr. Silverstein in

isolation permanently. (Haney Decl. ¶ 23, 001067.)


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D. Mr. Silverstein has suffered harm as a result of his thirty years in solitary confinement. One factual dispute in this case is whether Mr. Silverstein has been harmed

by his three decades in isolation.

Mr. Silverstein presented substantial evidence that he has been and continues

to be harmed by his conditions: he developed an Axis I anxiety disorder while in

isolation (Mental Health Rec., 001032); he continues to suffer from depression,

disrupted sleep and despair (Id., 001030, 001033, 001041; Haney Rpt., 001172);

and is experiencing memory loss and likely cognitive impairment (Mental Health

Rec., 001040; Haney Rpt., 001172; Williams Rpt., 001368), all conditions he has

been complaining of for over twenty years (Haney Rpt., Appx 001155; Williams

Decl. ¶ 11, 001343; Friedman Decl. ¶ 15, 001618-19.) Evidence presented to the

district court supports that each of these concerns is caused or exacerbated by Mr.

Silverstein’s isolation. (Williams Decl. ¶¶ 20, 24, 26, 001344-45.)

As set forth in significant detail in Dr. Haney’s expert report, the BOP’s own

records acknowledge much of the suffering experienced by Mr. Silverstein. Many

of these records “give unmistakable indications of some of the ways that [Mr.

Silverstein] suffered” during his isolation, and indicate that “his mental health has

repeatedly been placed at grave risk.” (Haney Rpt., 001140.) In his report, Dr.

Haney summarizes Mr. Silverstein’s symptoms as set forth in the BOP’s own


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reports, observing that these represent “most of the classic adverse reactions to the

pain of his isolation”:

[Mr. Silverstein] was described by [BOP psychology staff] during this single 10-year period as: suffering ‘disrupted and unsettled’ sleep, having a ‘prevailing . . . hopelessness,’ showing ‘anger with depressive contents,’ appearing ‘tense and withdrawn,’ experiencing ‘helplessness,’ acting ‘depressed and withdrawn,’ being worried about his ‘declining ability to recall historical information,’ appearing ‘markedly angry and despondent,’ expressing ‘frustration over his uncertain future,’ showing signs that his ‘cognitive and social skills…[were] impacted by isolation,’ expressing feelings of being ‘persecuted,’ having ‘thoughts of significant helplessness,’ showing ‘blunted’ and ‘flat and solemn’ mood and affect, appearing to have ‘difficulty expressing himself interpersonally,’ having trouble engaging in higher-order reasoning and conversation,’ showing a preference for ‘sensory deprivation’ that was ‘not a good indicator,’ appearing at times uncharacteristically disheveled and unkempt, avoiding eye contact, being ‘sullen and pessimistic about his future,’ functioning with a ‘degree of regimentation and repetitiveness…[that] does not foster positive mental health,’ suffering from ‘an affective disorder (dysthymia),’ manifesting a ‘dark tone’ and seeming paranoia that any honest expression of his personal problems would be publicly exploited by the BOP and, finally, that he ‘continued to struggle against the conditions he is subjected to.’

(Id., 001154.)

Despite Mr. Silverstein’s repeated voicing of these psychological concerns

and the clear knowledge of the BOP officials evidenced in their own documents, at

no time during his three decades of isolation has Mr. Silverstein been given a

comprehensive psychological evaluation or assessment (Id., 001151, 001155;

Friedman Decl. ¶¶ 7-9, 001617.)


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1. Depression and Anxiety Disorder

Throughout his isolation Mr. Silverstein has—and continues to—experience

depression and anxiety. The BOP’s records are replete with behaviors and self-

reports by Mr. Silverstein of significant depression stretching back over twenty

years and continuing to the present day. (See, e.g., Haney Rpt., 001154.) Dr.

Haney’s report provides a comprehensive review of records from a ten-year period

from 1991 to 2001, observing that they “provide a contemporaneous record of a

man in psychological pain, suffering under the conditions of his confinement and

struggling to adapt and adjust to the extraordinarily severe deprivations that they

imposed on him.” (Id., 001153.) He opined that “at times Mr. Silverstein

appeared to come dangerously close to—and perhaps sometimes to cross over

into—suffering from serious psychological problems that could incur disabling

long-term consequences.” (Id.)

Indeed, signs of significant depression and suffering were noted as early as

1991—eight years into his three decades of isolation. (Id., 001142.) Mr.

Silverstein had repeatedly asked to supplement his visiting list—a request the BOP

psychologist believed could “decrease the possibility of regressive behaviors in the

future”—but there was “continued denial of his requests for overseas telephone

calls and the addition of new individuals to his visiting list.” (Id.) As a result, a

BOP psychologist noted that “[Mr. Silverstein’s] sleep has been disrupted and


24

unsettled…His appearance and hygiene did not show the typical level of personal

attention to these matters as previously noted. His mood and affect evidenced

anger with depressive contents.” (Id.) BOP staff characterized his mental state as

having “a prevailing focus of hopelessness and a sense of futility in working with

the Federal Bureau of Prisons. In particular, he noted his frustration in explaining

to Bureau staff the impact caused by his loss of contact with society.” (Id.)

Similar reports by BOP mental health staff continued over the next decade.

Staff noted that Mr. Silverstein at times failed to take care of his personal

grooming and needs. (Id.) He grew “tense and angry related to his helplessness.”

(Id., 001143.) He showed indications of depression “in his speech, thought content

and behavior.” (Id.) At times, he was “markedly angry and despondent…[and

t]hemes of helplessness were noted in his presentation…” (Id.) The mental health

staff documented that many of these feelings related to his housing conditions and

to the fact that there were “no significant concerns or plans by staff to modify his

program.” (Id., 001144.) A BOP psychologist in 1994 wrote that Mr. Silverstein

had “[s]igns [] of an affective disorder, namely depression.” (Id., 001145.)

However, despite these numerous reports, Mr. Silverstein was still not evaluated

by a psychiatrist. (Id., 001155.)

In 1995, mental health staff observed that Mr. Silverstein showed signs of

withdrawal and depression. He “discontinued eye contact,” ceased responding to


25

questions, showed an “affect and mood that were flat and solemn” and “appear[ed]

to have trouble engaging in higher-order reasoning and conversation.” (Id.,

001146.) During this time, his “[a]nxiety was provoked [during a review] as

considerable sweat developed on his forehead and his face flushed.” (Id.) At

times, Mr. Silverstein chose to live in “near-darkness” (Id., 001147) and his

“interpersonal skills became ‘lazy’” (Id., 001149). Despite the BOP psychologist’s

suggestion that “[s]taff [] be encouraged to foster more interpersonal

communication/interaction” with Mr. Silverstein, there is no note that this

occurred. (Id., Appx.001149.) Rather, Mr. Silverstein continued to report

consistent suffering to mental health and other staff for the next eighteen years, as

described in Dr. Haney’s report and in Mr. Silverstein’s mental health records (Id.,

001153-55; see generally Mental Health Rec., 000919-1047.)

These harms endure to the present day. Mr. Silverstein’s mental health

records continue to document his depression and anxiety. (Mental Health Rec.,

001028, 001030, 001033-34, 001037, 001040, 001044.) And after decades of

showing so-called “resilience,” Mr. Silverstein has been diagnosed by BOP staff as

having developed a DSM Axis I disorder: Anxiety Disorder NOS, a condition he

did not have prior to being held in isolation. (Compare Mental Health Rec.,

001032 (2009) with 000920 (1986).)


26

Additional testimony from medical experts—Dr. Friedman (a psychologist)

and Dr. Williams (a physician who is board-certified in Internal Medicine and

Geriatrics)—supports the conclusion that Mr. Silverstein has been harmed by his

conditions. In his declaration, Dr. Friedman stated that Mr. Silverstein “often

feels depressed, anxious, has panic attacks, and experiences hopelessness and

despair.” (Friedman Decl. ¶ 27, 001620). He opined that “the chronic isolation in

which Mr. Silverstein is and has been held is an extreme stressor on him and these

conditions likely exacerbate many of his symptoms, including anxiety, despair,

paranoia and pain and suffering.” (Id. ¶¶ 29-30, 001620.) Relatedly, Mr.

Silverstein has also consistently reported insomnia over the course of his thirty

years in solitary confinement. (Williams Decl. ¶ 16, 001343; Haney Rpt., 001142.)

Dr. Williams explained that the two can be related as “insomnia can be caused by

isolation, loneliness and decreased physical activity.” (Williams Decl. ¶ 20,

001344.) As a doctor who specializes in geriatric medicine, she also explained that

both anxiety and insomnia can cause health risks in older adults, and that these

conditions should be responded to. (Id. ¶ 25, 001344-45.)

In his current unit at ADX, Mr. Silverstein has informed mental health staff

of his anxiety and depression. (Mental Health Rec., 001028, 001030, 001033-34,

001037, 001040, 001044.) A BOP doctor wrote “that he has been experiencing

stress and anxiety that would be expected given his circumstances” and prescribed


27

an anti-depressant. (Id., 001030.) Despite the medication, Mr. Silverstein

continues to suffer from depression, anxiety and despair. (Id., 001040-41, 001044;

Silverstein Decl. ¶¶ 241-45, 002354-55.) Mr. Silverstein’s reports have been

consistent over the past several years, and BOP staff specifically noted that “his

report of anxiety was certainly credible.” (Mental Health Rec., 001034.) Anxiety

and depression were also recorded by Dr. Haney during his 2008 evaluation of Mr.

Silverstein (Haney Rpt., 001170, 001172) (documenting that “one of [Mr.

Silverstein’s] main areas of concern and distress revolves around issues of anxiety”

and that “he overreacts to stimuli in his environment, particularly to sounds, that

make him jumpy.”)

Mr. Silverstein’s harms are not surprising or unexpected considering his

conditions; the BOP’s observations of Mr. Silverstein “describe[] behavior that is

very consistent [with] the kind of interpersonal problems that prisoners who have

experienced long-term isolation often experience.” (Id., 001149-50.) In his report,

Dr. Haney recounts the results of a 27-item “symptom checklist” that he

administered to Mr. Silverstein during his evaluation of him, stating that “Mr.

Silverstein’s responses were consistent with those of someone who, although he

had spent an extremely long period of time under conditions of severe isolation,

has been forced to become accustomed to his profoundly asocial existence.” (Id.,

001170.) Those responses include reports of having had “deprivation-related


28

hallucinatory-like experiences” and “having felt that the cell walls were closing in

on him,” among other effects. (Id., 001171.)

2. Memory Loss and Cognitive Impairment

In addition to anxiety and depression, the evidence also demonstrated that

Mr. Silverstein has consistently reported that he is suffering memory loss and

cognitive impairment as a result of his isolation. (Id. ¶ 11, 001343.) As early as

1992, Mr. Silverstein reported to BOP mental health staff that he had a “declining

ability to recall historical information.” (Haney Rpt., 001143.) For years, he asked

to be tested for this memory loss and cognitive impairment, but no tests were done.

(Silverstein Decl. ¶ 158, 002339; Haney Rpt., 001156; Mental Health Rec., 000970

(requesting a “mental health review by an independent mental health expert to

ascertain the level of impairment ‘caused’ by his long term confinement in

isolation”).)

Testing was denied despite clear indications in the BOP’s own records that

Mr. Silverstein’s memory was impaired. For example, a 1995 mental health entry

by a BOP psychologist noted his “struggle to engage in complex and higher-order

reasoning” and his “struggles to find the right words.” (Haney Rpt., 001146

(describing harms), 001155 (quoting BOP statement that evaluation was “never

clearly indicated”).) In 1997, that same BOP psychologist noted that Mr.

Silverstein “indicated that his thinking has been distorted and negatively


29

influenced by his continued presence in solitary confinement” (Id., 001150), but no

action was taken.

Once this lawsuit was underway, two experts—Dr. Williams and Dr.

Friedman—screened Mr. Silverstein for a mental impairment. (Friedman Decl. ¶

5, 001617; Williams Decl. ¶ 11, 001343.) Both used the Mini Mental Status Exam

(MMSE), which is a standard test for assessing memory impairment. (Id.) Mr.

Silverstein had an abnormal MMSE on both occasions in tests that were conducted

five months apart.2 (Friedman Decl. ¶ 22, 001620; Williams Decl. ¶ 11, 001343.)

Despite this finding, and despite further complaints from Mr. Silverstein, the BOP

has not taken any steps to do further assessment, even though recognized medical

practice is that an “abnormal [MMSE] test (positive screen) indicates that

cognition is an area of concern and needs further evaluation by a specialist

(neuropsychiatric testing).” (Williams Decl. ¶ 11, Apppx. 001343, Friedman Decl.

¶ 23, 001620, Williams Rpt., 001381.)

Dr. Williams explained that cognitive impairment is a significant and

dangerous condition that should be treated, particularly as one ages. (Williams

2 Additionally, after conducting his own evaluation of Mr. Silverstein, Dr. Haney documented in his report that “Mr. Silverstein also feels that he is experiencing significant cognitive deficits now, and specifically that he cannot process information the way he wants to and once could,” noting Mr. Silverstein’s statement that “[p]eople say things to me now and I can’t process what they are saying. I feel like I’m in a fog,” and noting that Mr. Silverstein “cannot focus on things or remember things, something he characterizes as a ‘huge problem.’” (Haney Rpt., 001172.)


30

Decl. ¶¶ 12-14, 001343). She opined that Mr. Silverstein’s memory impairment

could be directly caused by his isolation and sensory deprivation. (Id. ¶ 13,

001343.) Separately, Dr. Friedman concluded that Mr. Silverstein’s “isolation may

be also associated with cognitive impairment” and opined that “his conditions of

confinement are likely causing or exacerbating his indicated memory loss.”

(Friedman Decl. ¶¶ 27-30, 001620.)

3. The parties disputed whether Mr. Silverstein has been harmed.

Despite the BOP’s own record of Mr. Silverstein’s suffering and their

diagnosis and acknowledgment of his anxiety disorder, the BOP claims Mr.

Silverstein has suffered no harm from his decades of extreme isolation. (MSJ

Reply, 001865.) The BOP’s expert, Dr. Bursztajn, opined that he did “not find

evidence of damage to Mr. Silverstein’s mental health resulting from the

conditions of his confinement.” (Bursztajn Decl. ¶ 6, 0006661.) Dr. Bursztajn

made this finding despite his acknowledgement that Mr. Silverstein reported

symptoms of “anxiety and depression,” “some potentially psychotic symptoms,”

and some “paranoid trends” during his interview with him. (Id. ¶ 7 e & h, 000662.)

Additionally, in describing the results of a different psychological test he

administered to Mr. Silverstein (the Neurobehavioral Functioning Inventory), Dr.

Bursztajn noted that “Mr. Silverstein reported a number of cognitive difficulties,”

though he also explained that his responses should be “interpreted with caution.”


31

(Id. ¶ 13, 000665.) Dr. Bursztajn believed that Mr. Silverstein has not suffered any

harm because he did not find evidence that Mr. Silverstein “suffers from

substantial impairments of function,” (Bursztajn Depo., 001393). This standard

appears to be more akin to the legal definition of a disability than “psychological

pain, distress and anguish,” which, as Dr. Haney opines, “all represent forms of

harm.” 3 (Haney Decl. ¶¶ 37-40, 001073.)

The expert opinions on the issue of whether Mr. Silverstein has suffered

psychologically and continues to be harmed by his isolation are in stark contrast.

Defendants’ expert, Dr. Bursztajn, acknowledges this dispute, writing that “Mr.

Silverstein’s experts argue that the conditions of his confinement since his last

violent acts have caused massive psychological harm to Mr. Silverstein,” while

dismissing these claims himself. (Bursztajn Decl. ¶ 19, 000667.) In direct

response, Dr. Haney opined that Dr. Bursztajn’s analysis “is flawed,” both because

it “attaches insignificant importance to the degree of suffering that Mr. Silverstein

has already endured” and because “it ignores substantial risks that will be incurred

from his continued confinement…under these severe and potentially damaging

conditions.” (Haney Decl. ¶ 21, 001064.)

3 The Americans with Disabilities Act defines a “disability” as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2).


32

Evidence of harm also appears in Mr. Silverstein’s own reports and in

numerous BOP records documenting his suffering and mental harm. (Haney Rpt.,

001141-56; Silverstein Decl. ¶ 255, 002356 (“The experience of being utterly

alone in a tiny cell for nearly three decades has caused me emotional despair and

has caused me to deteriorate physically as well…I have often wished for death.”; ¶

241, 002354, (“The mental anguish of 28 years of solitary confinement is worse

than any physical pain I have ever suffered or imagined.”).)

4. The district court made a factual finding that ignored evidence of harm.

With this evidence before it, the district court made a finding that Mr.

Silverstein’s lack of harm was undisputed. (MSJ Opinion, 001961.) In doing so,

the court specifically cited Dr. Bursztjan’s opinions that “Mr. Silverstein shows no

significant indication of having been harmed by the restrictions placed on him” and

“that the safest and most reasonable course… is for Mr. Silverstein to continue to

negotiate the conditions of his confinement.” (Id.) In making this determination,

the district court’s order does not mention Dr. Haney’s declaration, which

specifically refutes the idea that “some sort of ‘negotiation’ is currently taking

place between Mr. Silverstein and the BOP,” explaining that “[i]n fact, Mr.

Silverstein has not been permitted to ‘negotiate’ or in any other way exercise

control over the nature and amount of isolation, deprivation, or restrictions that

have been imposed on him.” (Haney Decl. ¶ 22, 001067.) Rather, the court twice


33

mentioned that Dr. Bursztjan’s opinion was “undisputed,” even though the quoted

text demonstrates that these exact claims were specifically disputed in Dr. Haney’s

declaration. (MSJ Opinion, 001961, 001963.)

E. Mr. Silverstein is at substantial risk of future harm if he remains in isolation.

In addition to presenting evidence of the actual harm he has suffered in his

thirty years of isolation, Mr. Silverstein also presented sufficient evidence to allow

a reasonable fact-finder to conclude that he is at a substantial risk of future harm if

the BOP continues to hold him in solitary confinement.

1. Research demonstrates that long-term isolation creates a significant risk of harm.

The mental health effects of solitary confinement are documented in a large

body of research, as detailed by Dr. Haney in his report. (Haney Rpt., 001113-32.)

This research has consistently shown that long-term isolation results in numerous

serious psychological harms, including, but not limited to: suicidal ideation and

behavior, self-mutilation, hopelessness, withdrawal, cognitive dysfunction,

hypersensitivity, panic, anxiety, rage, paranoia, hallucinations, and sleep

disturbances. (Id., 001118-19.)

Dr. Haney explained that the “literature is empirically consistent—virtually

every one of the studies conducted has documented the psychologically precarious

state of persons confined under conditions of penal isolation, and many address in


34

detail the pain and suffering that isolated prisoners endure.” (Id., 001113.) He

further explained that the research is “theoretically sound; there are numerous

reasons why one would expect long-term isolation, the absence of meaningful

social interaction and activity, and the other severe deprivations that are common

under conditions of solitary confinement to have harmful psychological

consequences.” (Id., 001113-14.)

The evidence of psychological harm and suffering resulting from solitary

confinement dates back over a hundred years. In In re Medley, the U.S. Supreme

Court examined solitary confinement conditions in Colorado. 134 U.S. 160 (1890).

In reaching that holding, the Court recounted "serious objections" to solitary

confinement: "[a] considerable number of the prisoners fell, after even a short

confinement, into a semi-fatuous condition, from which it was next to impossible

to arouse them, and others became violently insane; others still, committed suicide;

while those who withstood the ordeal better were not generally reformed and in

most cases did not recover sufficient mental activity to be of any subsequent

service to the community." Id. at 168.

The significance of the risk of harm is also apparent from the prevalence of

prisoners in solitary confinement who experience negative effects. The research

documents that almost all prisoners in isolation experience some psychological

harm, with many experiencing a “constellation of symptoms indicative of mood or


35

emotional disorders.” (Haney Rpt., 001122.) Many others report “symptoms

typically only associated with more extreme forms of psychopathy—

hallucinations, perceptual distortions, and thoughts of suicide.” (Id.)

Studies on the psychological effects of solitary confinement have been

conducted in a variety of different isolation settings in prisons in the U.S. and other

countries with strikingly similar results. A large-scale study of New York

correctional facilities observed the effects of isolation and found it resulted

regression, break-downs, panic, and self-mutilation. (Haney Rpt., 1118.) Studies

from around the world similarly confirmed that people placed in isolation

developed more psychopathological symptoms than those in other types of

custody. (Id., 1119 n.2 (citing studies conducted in France, Germany, Poland, and

Denmark, among others.) Segregated prisoners displayed heightened anxiety,

hallucinations, problems with concentration, self-mutilation, and extreme distress.

(Id.) Other researchers have specifically linked isolation units to increased suicide

rates. (Id., 1119.) The dire impact of long-term solitary confinement on a person’s

health also is indicated by its use as a torture tactic. (Id., 1121.)

The risks presented by long-term solitary confinement are acknowledged by

the psychological community at large, including the American Psychiatric

Association. (APA Testimony, 002121.) In a report submitted to Congress on the

risks of long-term solitary confinement, the APA stated that the organization is


36

concerned because “[s]egregation over prolonged periods of time may produce

harmful psychological effects. These effects may include anxiety, anger, cognitive

disturbance, perceptual distortion, obsessive thoughts, paranoia, and psychosis.”

(Id.) The APA notes that for prisoners with serious mental illness, the effects can

be even more extreme and can require psychiatric hospitalization or crisis

intervention services. (Id.) Likewise, other mental health organizations (including

Psychologists for Social Responsibility and Physicians for Human Rights) have

urged curtailment of the use of solitary confinement based on their concerns that

“solitary confinement can have severely deleterious effects on the psychological

well-being of those subjected to it.” (PSR Testimony, 001748-79; see also

Physicians for Human Rts. Rpt., 001815-19.)

The harmful effects of solitary confinement have been observed not only by

researchers and mental health professionals, but also by prison staff who have

worked in segregation units. (Haney Rpt., 001117-18.) Correctional staff have

reported seeing prisoners suffer severe psychological effects, explaining that

“complete confinement to the cell[] results in deep emotional disturbances” which

manifest in an increased prevalence of suicide and self-mutilation in isolation

units. (Id., 001118-20.)

Risk of harm is further demonstrated by the fact that others who have been

housed in ADX or other solitary confinement units report similar symptoms.


37

(McBayne Decl. ¶¶ 6-10, 001687; Rideau Memoir, 001673-74; Scutari Decl.,

001692-93.) All reported hallucinations, in particular the fear that the cell walls

were moving or closing in on them, and all noted extreme depression, despair, and

loss of the ability to determine what was part of reality and what was not. (Id.)

2. Mr. Silverstein’s experience demonstrates that he is at risk of future harm if the BOP continues to confine him in isolation.

That Mr. Silverstein is at substantial and continual risk of harm as a result of

his extended isolation is unsurprising as he has already exhibited many of the same

psychological harms that are documented in the research on solitary confinement.

(Haney Rpt., 001153-55.) As set forth above and in the record before the district

court, the symptoms reported by other prisoners in solitary confinement parallel

those in Mr. Silverstein’s own reports. (Id., Silverstein Decl. ¶¶ 122, 241-49,

002332, 002354-55.) He has suffered “most of the classic adverse reactions”

associated with long-term isolation, including cognitive dysfunction, anxiety,

depression, ruminations, hopelessness, lethargy, hallucinations, and thoughts of

suicide. (Haney Rpt., 001154-55.)

Some of these harms have plagued Mr. Silverstein for years or decades, and

there is no evidence to demonstrate that he will not continue to suffer from them—

and for them to worsen—if he continues to be isolated from human contact. As

Dr. Haney explained, “the full-range of long-term future consequences that may

stem from his extraordinary treatment…remain to be seen.” (Id., 001115.)


38

Indeed, from his three decades of mental health reports, a reasonable fact-finder

could conclude it is certain that he will continue to suffer psychological damage

and pain as a result of his isolation. While some of Mr. Silverstein’s psychological

conditions have remained consistent over time (anxiety, memory loss, depression,

despair), others symptoms have manifested at various points during his long

segregation. For example, for a period of his isolation Mr. Silverstein reports that

he “thought about suicide all the time.” (Haney Rpt., 001171.) Likewise, he

intermittently has reported hearing voices and having hallucinations. (Id., 001171;

Williams Rpt., 001367; Silverstein Dec. ¶¶ 85, 122, 245, 002326, 002332,

002355.) Variance of symptoms does not show a lack of risk; rather, it is evidence

that Mr. Silverstein will continue to be harmed by his conditions—though the next

symptom and its precise severity are unknown. What the evidence does

demonstrate is that “[t]he chronic isolation in which Mr. Silverstein is and has been

held is an extreme stressor on him and these conditions likely exacerbate many of

his symptoms…” (Friedman Decl. ¶ 29, 001620.)

Relatedly, Dr. Williams explained that many of the psychological harms that

Mr. Silverstein is experiencing can and do lead to physical ones. Conditions

experienced by Mr. Silverstein—including sleeplessness and anxiety—are health

risks. (Id. ¶¶ 17-26, 001343-45.) She specifically opined that “Mr. Silverstein’s

conditions of confinement have increased his serious risk of harm or injury. In


39

some instances, this increased risk is a result of his isolation, and is substantial.”

(Williams Decl. ¶ 10, 001342-43.) For example, as explained by Dr. Williams, a

memory impairment is dangerous as it “can increase the risk of falls, morbidity,

and mortality… risks [that] become increasingly common and more serious as one

ages.” (Id. ¶ 12, 001343.) In other words, keeping Mr. Silverstein in these

conditions increases the chance that he will die prematurely.

3. The BOP disputed that Mr. Silverstein is at risk of future harm. While the BOP did not admit that long-term solitary confinement is likely to

lead to harm, they failed to produce research contradicting that put forth by Dr.

Haney and the broader mental health community documenting the significant

potential for harm posed by prolonged solitary confinement.

In fact, in his declaration, Dr. Bursztajn made no mention of the vast body of

research documenting that prisoners in long-term isolation are placed at

significantly increased risk of psychological harm. He only asserted that Mr.

Silverstein was not at risk, basing that on his opinion that he had not suffered any

past damage that would rise to the level of a legal disability. (Bursztajn Depo.,

001393.) However, Dr. Bursztajn himself acknowledges the impossibility of

knowing how someone will react in the future (Bursztajn Decl. ¶¶ 14-15, 000665),

and even with his lack of concern over Mr. Silverstein’s current mental state, he

states that “greater interpersonal contact with appropriately screened individuals


40

from outside the prison is likely to benefit [Mr. Silverstein].” (Bursztajn Rpt. ¶ M,

001636-37.)

4. The district court erroneously resolved a factual dispute by finding that Mr. Silverstein is not at risk of future harm.

In the face of the large body of research documenting that long-term use of

solitary confinement is harmful as well as the expert opinions that Mr. Silverstein

is at significant risk of harm, the district court ruled as a matter of law that Mr.

Silverstein “does not objectively face a serious risk of harm within the context of

the Eighth Amendment.” (MSJ Opinion, 001962.) The court failed to provide any

discussion of the evidence to the contrary and no explanation as to why Mr.

Silverstein is not at risk of future harm. Rather, the court only discussed its finding

that Mr. Silverstein has not yet been harmed (itself a significant factual dispute),

focusing only on the past and present and not assessing potential future risk. (Id.,

001962-63.)

V. SUMMARY OF THE ARGUMENT

In granting summary judgment in favor of the BOP in this case, the district

court made three significant errors.

First, the district court erroneously resolved disputed factual issues in favor

of the moving party – the BOP. Specifically, the court found that Mr. Silverstein

was not harmed by his decades in isolation and long-term deprivation of the human

needs of social interaction and environmental stimulation. In so doing, the district


41

court erred by resolving a material factual dispute. Mr. Silverstein presented

evidence from which a reasonable fact-finder could conclude that his conditions

are harmful, and that he has suffered specific and significant harms. Thus, the

district court committed reversible error in resolving a factual dispute in favor of

the moving party.

Second, the district court erred by failing to consider evidence of the

duration of Mr. Silverstein’s isolation. Rather, the court erroneously and

arbitrarily limited the evidence considered only to the last several years Mr.

Silverstein has been in isolation. It imposed this limitation despite clear Supreme

Court and Tenth Circuit precedent that both the nature of the conditions and their

duration is relevant to determining whether the Eighth Amendment has been

violated.

Finally, the district court erred by ignoring Supreme Court precedent and

failing to consider whether Mr. Silverstein’s solitary confinement conditions put

him at substantial risk of future harm. The objective prong of the Eighth

Amendment is satisfied if a prisoner is placed at a substantial risk of serious harm.

Farmer v. Brennan, 511 U.S. 825, 834 (1994), Helling v. McKinney, 509 U.S. 25,

33 (1993). Here, however, once the district court determined that Mr. Silverstein

was not experiencing harm, it failed to consider whether continued isolation placed

him at risk of harm in the future. The district court concluded there was no risk of


42

harm but cited no evidence in doing so, thus committing reversible error.

Accordingly, this ruling should be remanded and the issue of whether Mr.

Silverstein’s ongoing isolation puts him at risk of future harm should proceed to

trial.

VI. ARGUMENT

ISSUE PRESERVATION AND STANDARD OF REVIEW

The BOP moved for summary judgment on all of Mr. Silverstein’s claims,

and he opposed the motion. (Defs.’ MSJ Mot., 000167-201; Pl.’s Resp., 000734-

68.) The district court granted summary judgment on all claims. (MSJ Opinion,

001925-67.) Mr. Silverstein moved for reconsideration, asserting that the district

court had ignored then-prevailing Tenth Circuit law and had made substantial

errors. (59(e) Mot., Appx., 001977-91.) Subsequently, Mr. Silverstein submitted

further post-judgment briefing, providing newly discovered evidence to the district

court. (60(b) Mots., 002013-24, 002072-78.) The district court denied these

motions on September 12, 2012. (Order, 002148-60.) Mr. Silverstein timely

appealed. (Not. of Appeal, 002161-62.)

This Court reviews a grant of summary judgment de novo and affirms only if

the record, viewed in the light most favorable to the losing party, establishes no

genuine issues of material fact. Jones v. Denver Public Schools, 427 F.3d 1315,

1318 (10th Cir. 2005). In considering a motion for summary judgment, the Tenth


43

Circuit has “repeatedly has emphasized that [courts] must draw all inferences in

favor of the party opposing summary judgment.” O’Shea v. Yellow Tech. Servs.,

Inc., 185 F.3d 1093, 1096 (10th Cir. 1999) (citations and quotations omitted);

Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). The non-movant is

given ‘wide berth to prove a factual controversy exists.’” Smith v. Diffee Ford-

Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002). The “moving party

carries the burden of showing beyond a reasonable doubt that it is entitled to

summary judgment.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979

(10th Cir. 2002) (internal quotation omitted). Where the evidence of harm is

equivocal, the evidence should proceed to a fact-finder. See Stack v. McCotter, 79

Fed.383, 389 (10th Cir. 2003).

THE EIGHTH AMENDMENT STANDARD

“By protecting even those convicted of heinous crimes, the Eighth

Amendment reaffirms the duty of the government to respect the dignity of all

persons.” Roper v. Simmons, 543 U.S. 551, 560 (2005). This duty extends to

prisons, for it is well-established that “[c]onfinement in a prison . . . is a form of

punishment subject to scrutiny under the Eighth Amendment standards.” Hutto v.

Finney, 437 U.S. 678, 685 (1978). In ascertaining the content of those standards,

the Supreme Court interprets the Amendment “in a flexible and dynamic matter.”

Gregg v. Georgia, 428 U.S. 153, 171 (1976). This means that “[n]o static ‘test’


44

can exist by which courts determine whether conditions of confinement are cruel

and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving

standards of decency that mark the progress of a maturing society.” Rhodes v.

Chapman, 452 U.S. 337, 346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101

(1958)).

To determine society’s evolving views on what punishments are cruel and

unusual, courts look to national and international authorities, Roper, 543 U.S. at

575, as well as rely on what risks are obvious, Farmer v. Brennan, 511 U.S. 825,

842 (1994). Because the Amendment’s meaning is governed by evolving

standards of decency, a court may find that a punishment is unconstitutional even

if other courts previously held similar or identical punishments to be constitutional.

Compare Penry v. Lynaugh, 492 U.S. 302 (1989) (holding Eighth Amendment

does not categorically prohibit the execution of mentally retarded persons) with

Atkins v. Virginia, 536 U.S. 304 (2002) (finding Eighth Amendment categorically

prohibits execution of mentally retarded persons). At all times, however, courts

must remember that the “basic concept underlying the Eighth Amendment” is

“nothing less than the dignity of man.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(citation and quotations omitted).

To establish an Eighth Amendment claim for conditions of confinement, a

plaintiff must satisfy a two-prong test, including an objective and a subjective


45

component. The objective component asks whether the deprivation is sufficiently

serious, and “by necessity relies on the particular facts of each situation; the

circumstances, nature, and duration of the challenged conditions must be carefully

considered.” (Doc. 261 at 36, quoting DeSpain v. Uphoff, 264 F.3d 965, 974 (10th

Cir. 2001)). The subjective component is satisfied if officials were aware of a risk

and disregarded it. Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 810 (10th Cir.

1999).

A. The District Court erred by resolving a factual dispute in favor of the moving party in determining Mr. Silverstein has not been harmed by his thirty years in isolation.

Mr. Silverstein alleged that the BOP has subjected him to cruel and unusual

punishment by depriving him of human interaction and environmental stimulation

for thirty years. He asserts that this long-term isolation has harmed him and

continues to harm him, and that the evidence of his harm is sufficient to allow him

to proceed to trial on his claim.

Earlier in the case, at the motion to dismiss phase, the district court

determined—as a matter of law—that the denial of social interaction and

environmental stimulation are sufficient deprivations of “basic human needs” to

state an Eighth Amendment claim. (MTD Opinion, 000129) (“Mr. Silverstein’s

segregated confinement has continued for a sufficient length of time that relief on

his Eighth Amendment claim is plausible…”). The district court did not revisit


46

this legal determination at summary judgment, though it was aware that it had the

ability to revisit a prior issue, as stated earlier in its opinion. (MSJ Opinion,

001939.)

Thus, the issue of whether Mr. Silverstein has been sufficiently harmed by

those deprivations such that his Eighth Amendment rights have been violated

should have been allowed to proceed to trial, as this factual issue was disputed by

the parties. Instead, the district court resolved the issue in favor of the moving

party, an error that requires reversal.

First, a fact-finder could determine, simply by examining Mr. Silverstein’s

conditions, that the severity and duration of Mr. Silverstein’s isolation harmed him.

Reasonable people have concluded that it is obvious that prolonged and indefinite

segregation leads to psychological harm sufficient to establish an Eighth

Amendment claim. In Wilkerson v. Stalder, for example, Chief Judge Tyson stated

that “[i]t is obvious that being housed in isolation in a tiny cell for 23 hours a day

for over three decades results in a serious deprivation of basic human needs.” 639

F.Supp.2d 654, 679 (M.D. La. 2007). Other courts have reached similar

conclusions, holding that “basic human needs include social interaction and

sensory stimulation” and noting that “a conclusion ... that prolonged isolation from

social and environmental stimulation increases the risk of development of mental

illness does not strike this court as rocket science.” McClary v. Kelly, 4 F.Supp.2d


47

195, 208 (W.D.N.Y. 1998); Ruiz v. Johnson, 154 F.Supp.2d 975, 985-86 (S.D.

Tex. 2001) (level of deprivation of basic mental health needs “marked by extreme

social isolation and reduced environmental stimulation” violated “evolving

standards of decency that mark the progress of a maturing society”).

By contrast, the BOP asserted that it did not deny Mr. Silverstein any basic

human necessities. (Defs.’ MSJ Mot., 000200.) The BOP claimed that Mr.

Silverstein had sufficient human contact because he received “some social

interaction and some environmental stimulation.” (MSJ Reply, 001872.) A

reasonable fact-finder could determine that the one minute a day that Mr.

Silverstein interacts with prison staff, and the approximately one minute a day of

phone time he receives, do not change the fact that he is deprived of normal and

regular social interaction, and that this deprivation causes harm.

Accordingly, a fact-finder could conclude that based on the unprecedented

length of time that Mr. Silverstein has been deprived of the basic human needs of

human interaction and environmental stimulation, that the harm caused by these

deprivations is apparent. That this conclusion is both possible and reasonable is

illustrated by the choices of reasonable judges, legislators, and citizens across the

country who have concluded that extreme isolation is harmful and painful – even

for time periods well under three decades.


48

Mr. Silverstein also presented substantial evidence of his current mental

harm resulting from his isolation. The BOP’s own records demonstrate that he has

developed an Axis I mental health disorder while in solitary confinement (Mental

Health Rec., 001032), and that he has consistently and continually reported that he

is depressed, anxious, and suffering memory loss and other cognitive effects—all

as a result of his isolation (Id., 001028, 001030, 001033-34, 001037, 001040,

001044). These reports to BOP staff began over two decades ago, and continue to

this day. (Haney Rpt., 001053-56.) In addition, Dr. Haney observed that Mr.

Silverstein “has suffered most if the classic adverse reactions to the pain of

isolation.” (Id.) This harm was confirmed by two other medical experts, Dr.

Williams and Dr. Friedman. (Friedman Decl. ¶ 5, 001617; Williams Decl. ¶ 11,

001343.) As set forth in his declaration submitted to the district court, Mr.

Silverstein reports that he has suffered, and is continuing to suffer, extreme harm.

(Silverstein Decl., ¶¶ 241-45, 002354-55.)

These harms are significant. Psychological pain and suffering of the sort at

issue here has long been recognized as a substantial and serious harm. As

explained by Justice Blackmun: “it is not hard to imagine inflictions of

psychological harm—without corresponding physical harm—that might prove to

be cruel and unusual punishment... ‘Pain’ in its ordinary meaning sure includes a

notion of psychological harm.” Hudson v. McMillian, 503 U.S. 1, 16 (Blackman,


49

J. concurring in judgment). In addition, allowing these conditions to persist is

dangerous; as Dr. Williams explained, continued failure to treat conditions such as

anxiety or cognitive impairment can result in increased risk of premature death.

(Williams Decl. ¶ 12, 001343.) In light of these grave harms, the BOP has

displayed complete unwillingness to evaluate Mr. Silverstein’s harms—never in

thirty years giving him a comprehensive psychological evaluation (Haney Rpt.,

001155), nor testing him for cognitive impairment despite clear indicators that this

is medically indicated. (Williams Decl. ¶ 11, 001343; Friedman Decl. ¶ 22,

001620.)

Rather, the BOP simply keeps claiming that there is no harm. The BOP

mainly relies on its expert, Dr. Bursztajn, to present evidence that Mr. Silverstein

has not been harmed. (Bursztajn Decl. ¶¶ 14-15, 000665.) Dr. Bursztajn made a

finding that Mr. Silverstein has not suffered any harm because he did not find

evidence that he “suffers from substantial impairments of function.” (Bursztajn

Depo., 001393.) Ultimately, Dr. Bursztajn opined that he did not “find any

evidence of damage to Mr. Silverstein’s mental health resulting from the

conditions of his confinement.” (Bursztajn Decl. ¶ 6, 000661.)

This is a classic dispute on a material factual issue; there are conflicting

records and expert testimony on the question of whether Mr. Silverstein has been

harmed by his isolation. In holding—as a matter of law—that Mr. Silverstein has


50

not been harmed, the district court blatantly ignored the evidence before it. The

court states that “the record is devoid of actual instances where plaintiff personally

suffers from panic, rage, loss of control, paranoia.” (Id., 001963.) This conclusion

is baffling in light of the fact that the BOP’s own records document these harms

that Dr. Haney, Dr. Friedman, Dr. Williams, specifically discussed that Mr.

Silverstein had experienced or currently was experiencing these exact symptoms,

and because even Defendant’s expert noted that Mr. Silverstein exhibited some of

these symptoms (Bursztajn Decl. ¶ 7 e & h, 000662.)

In holding, as a matter of law, that Mr. Silverstein was not harmed, the court

also appears to have relied on the claim made by BOP psychologist Dr. Denney

that Mr. Silverstein is “resilient.” (MSJ Opinion, 001963.) However, Dr. Haney

specifically criticized Dr. Denney’s determination of resiliency in light of the

lengthy record of negative effects recorded by Dr. Denney himself. (Haney Rpt.,

001141-42). Likewise, Dr. Haney notes that Dr. Denney’s evaluations of Mr.

Silverstein were “exceedingly limited and superficial, and compromised by high

levels of mistrust,” pointing out that even Dr. Denney himself characterized those

evaluations as “based upon [] narrowly focused and necessarily brief interview[s].”

(Id., 001140).

In holding that Mr. Silverstein has not suffered harm, the district court also

relied on a directly disputed piece of expert testimony. The court cites “an


51

undisputed report by Dr. Bursztjan” as evidence that “plaintiff shows no significant

indication of having been harmed by the restrictions placed on him at ADX.”

(MSJ Opinion, 001963.) This exact quote from Dr. Bursztjan was directly

disputed by Plaintiff’s expert, Dr. Haney, who stated that this opinion “is flawed,”

because it “attaches insignificant importance to the degree of suffering that Mr.

Silverstein has already endured.” (Haney Decl., ¶ 21, 001067.) Remarkably, the

district court does not discuss Dr. Haney’s opinion on this point. The court further

appears to ignore, or erroneously discredit, Dr. Haney’s testimony that Mr.

Silverstein “suffered, and continues to suffer numerous forms of psychological

harm,” including “inter alia, pain and distress, extreme anxiety, sleeplessness,

despair and hopelessness, depression, inability to concentrate and cognitive

impairment.” (Id. ¶ 36, 001073.)

The dispute here is clear and alone merits a remand of this case with

instruction that it be sent to trial because of this disputed issue of fact.

B. The District Court erred in refusing to consider twenty-two years of evidence, even though Mr. Silverstein challenges the duration and totality of his three decades in isolation under the Eighth Amendment.

The district court’s ruling that there was no evidence of harm in part relied

upon an erroneous limitation of the record, resulting in the court ignoring twenty-

two years of evidence about Mr. Silverstein’s harms. In analyzing whether

summary judgment was warranted on Mr. Silverstein’s Eighth Amendment claim,


52

the district court defied Supreme Court and circuit court law and refused to

consider the duration of Mr. Silverstein’s deprivation of human contact and

environmental stimulation. The court made this error by relying on the incorrect

premise that only Mr. Silverstein’s conditions of confinement for the six years he

has been confined in ADX were relevant to his claims, rather than the decades that

the BOP has held Mr. Silverstein in solitary confinement. (MSJ Opinion, 001956;

Order, 002153-54.)

The court made this error by conflating two issues: (1) the date it believed

Mr. Silverstein’s claim accrued for statute of limitations purposes; and (2) what

evidence to consider in determining whether his conditions of confinement

constitute cruel and unusual punishment. (Id., 001956.) The district court found

that Mr. Silverstein’s injuries accrued in 2005 upon his transfer to ADX4 (Id.,

001939), and erred when it then used that date to preclude consideration of any

evidence of Mr. Silverstein’s conditions of confinement for the prior 22 years (Id.,

001939, 001956; Order, 002153-54.) By selecting this date, the district court

erroneously excluded all evidence of a central aspect of Mr. Silverstein’s Eighth

Amendment claim: the duration of his isolation.

4 The district court’s holding that Mr. Silverstein’s Eighth Amendment claim accrued in 2005 is also incorrect. Because that claim necessarily includes the duration of his confinement in isolation – which continues to the present day – his claim accrues every day that the BOP fails to address the unconstitutional condition.


53

In considering Eighth Amendment challenges to conditions of confinement,

the Supreme Court has held that duration is significant because the length of time

in restrictive conditions alters the individual’s experience, making the deprivation

worse. See Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (“[a] filthy, overcrowded

cell and diet of ‘grue’ might be tolerable for a few days and intolerably cruel for

weeks or months.”). Likewise, the Tenth Circuit recognizes that duration is an

indispensable consideration in the analysis of an Eighth Amendment conditions

claim. See DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (Eighth

Amendment requires courts to consider plaintiff’s conditions of confinement and

“the length of exposure to the conditions,” which is “often of prime importance” as

“the circumstances, nature, and duration of the challenged conditions must be

carefully considered”); Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)

(“[Eighth Amendment] inquiry turns not only on the severity of the alleged

deprivations, but also on their duration”); Allen v. Avance, 491 Fed.Appx. 1, 3

(10th Cir. 2012) (“The failure to provide basic necessities, if sufficiently prolonged

and severe, can satisfy the objective prong . . . it is particularly important to

develop an adequate record on factual disputes related to the seriousness and

length of the alleged deprivations, for these are essential elements of a conditions

of confinement claim. . . The difference between enduring certain harsh conditions

for seven weeks versus six months may be constitutionally significant”); Mitchell


54

v. Maynard, 80 F.3d 1433 (10th Cir. 1996) (failure to provide basic necessities, if

sufficiently prolonged and severe, can satisfy objective prong); Barney v.

Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (“An important factor in

determining whether conditions of confinement meet constitutional standards is the

length of the incarceration”).

Indeed, in determining the constitutionality of a condition of confinement,

the federal courts of appeal have recognized an inverse relationship between the

severity of the challenged condition and its duration, holding that extended

exposure may render unconstitutional a particular set of conditions that would pass

constitutional muster if imposed for a short time. Gates v. Cook, 376 F.3d 323,

333 (5th Cir. 2004) (“length of confinement cannot be ignored”); Johnson v. Lewis,

217 F.3d 726, 732 (9th Cir. 2000) (“modest deprivations can form the objective

basis of a violation, but only if such deprivations are lengthy or ongoing”).

Conversely, courts also have held that even some “deplorable” conditions do not

violate the Eighth Amendment if they are endured for relatively brief periods. See,

e.g., Barney v. Pulsipher, 143 F.3d at 1312 (courts have repeatedly held that

similar and far worse conditions fail to state a claim because of the brief nature of

the incarceration); citing Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir.

1994) (deplorably filthy and patently offensive cell with excrement and vomit not

unconstitutional because conditions lasted only for 24 hours); White v. Nix, 7 F.3d


55

120, 121 (8th Cir. 1993) (eleven-day stay in unsanitary cell not unconstitutional

because of relative brevity of stay); Harris v. Fleming, 839 F.2d 1232, 1235-36

(7th Cir.1988) (five-day stay in “filthy, roach-infested cell” not unconstitutional);

Ogbolu v. McLemore, 107 F.3d 21 (Table) (10th Cir. 1997) (cold, wet, drafty, and

unsanitary solitary cell for two days does not violate Eighth Amendment).

Here, Mr. Silverstein is challenging the ongoing isolation that he has been

subjected to since 1983. The duration of this enduring condition cannot be parsed,

nor can some parts be discarded. That Mr. Silverstein’s isolation has been

consistent and without break is without question—even BOP officials

acknowledge that he has been in isolation this entire period. Rather, the district

court attempts to disregard the duration of this deprivation by focusing on

immaterial and irrelevant facts. Specifically, the district court cites differences

from his housing units—for example, that he had variable control of the lights,

variable access to exercise equipment, and variable outdoor recreation—to claim

his isolation was not lasting. (Order, 002154.) These facts matter no more to his

claim regarding isolation than the color of his jumpsuit or what food Mr.

Silverstein is served for lunch. His claim of cruel and unusual punishment does

not allege that he was denied recreation or lighting, it asserts he has been—for

thirty years and counting—denied human contact and environmental stimulation.


56

By determining that Mr. Silverstein’s claims accrued in 2005 and limiting

the evidence it considered to only the six years of isolation at ADX, the Court

ignored that Mr. Silverstein’s current conditions cannot be separated from the total

length of time he has been isolated. It is the duration itself that establishes Mr.

Silverstein’s claim; the three decades in solitary confinement that Mr. Silverstein

has suffered –and continues to suffer—at the hands of the BOP is the violation.

Indeed, the district court itself recognized the significance of the duration of

Mr. Silverstein’s isolation earlier in this litigation when, at the Motion to Dismiss

phase, it refused to dismiss his Eighth Amendment claim against the BOP precisely

because of the 28-year period in solitary confinement. (MTD Opinion, 000129.)

Stating that “a noteworthy characteristic of Mr. Silverstein’s confinement is its

duration,” and observing that “the Court is unaware of a circuit court decision

discussing the eighth amendment implications of decades-long segregated

confinement,” the district court held that “Mr. Silverstein’s segregated confinement

has continued for a sufficient length of time that relief on his eighth amendment

claim is plausible and dismissal is not appropriate against defendant BOP.” (Id.,

000128-29.)

Yet in its order granting summary judgment, the district court converted Mr.

Silverstein’s 28-year period of solitary confinement into six years by holding, as a

matter of law, that the entire period of isolation prior to his transfer to ADX is


57

irrelevant to his Eighth Amendment claim. (MSJ Opinion, 001956.) In that

decision, the district court held that “although plaintiff alleges that he has faced

serious risk of harm based in part on his isolation for over 28 years, the court will

focus its Eighth Amendment inquiry on conditions imposed after plaintiff’s

transfer in July 2005. The Court finds that plaintiff’s confinement in USP

Leavenworth is inconsequential to his ongoing Eighth Amendment claim insofar as

plaintiff seeks injunctive relief because nothing in plaintiff’s supporting documents

suggests that he is likely to be subject to those conditions again.” (Id.)

This fundamentally misapprehends Mr. Silverstein’s claim because, as the

evidence before the district court shows, he is still subject to “those conditions”

because he is still in solitary confinement.5 (Id.) Evidence of conditions prior to

Mr. Silverstein’s placement at ADX is indispensible to his Eighth Amendment

claim because duration is such a significant aspect of the violation. For that reason,

this issue should be remanded with instructions to District Court to consider all

relevant evidence from the entire thirty-year period comprising Mr. Silverstein’s

isolated confinement.

5 The cases cited by the district court in support of its conclusion (Saleh v. U.S., No. 09-cv-02563-PAB-KLM, 2011 WL 2682728 (D. Colo. July 8, 2011) and Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006)) are inapposite because in those cases, the courts dismissed the plaintiffs’ claims on mootness grounds because they concluded that the plaintiffs were no longer suffering the constitutional harm. Here, there is no argument that Mr. Silverstein’s claims are moot – he has been in solitary confinement since 1983 and his harm is ongoing because he remains in isolation today.


58

C. The District Court erred as a matter of law by ignoring Supreme Court precedent holding risk of harm is sufficient to establish an Eighth Amendment violation or, alternatively, by resolving a factual dispute by ignoring substantial evidence that Mr. Silverstein is at risk of harm.

“That the Eighth Amendment protects against future harm to inmates is not a

novel proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993); Hunt v. Uphoff,

199 F.3d 1220, 1224 (10th Cir. 1999). Accordingly, it is well-established that a

substantial risk of serious harm is enough to establish the objective prong of an

Eighth Amendment claim. Helling, 509 U.S. at 33 (1993), citing Hutto v. Finney,

437 U.S. 678, 682 (1978). The Eighth Amendment does not require a prisoner

seeking “’a remedy for unsafe conditions [to] await a tragic event’” before

obtaining relief. Farmer v. Brennan, 511 U.S. 825, 845 (1994), quoting Helling,

509 U.S. at 33-34; see also Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980)

(prisoner need not wait until he is actually assaulted before obtaining relief);

Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) ( “There is no

requirement that an inmate suffer serious medical problems before the condition is

actionable.”) As explained by the Supreme Court, “’It would,’ indeed, ‘be odd to

deny an injunction to inmates who plainly proved an unsafe, life-threatening

condition in their prison on the ground that nothing yet had happened to them.’”

Farmer, 511 U.S. at 845 (quoting Helling, 509 U.S. at 33); Shannon v. Graves, 257

F.3d 1164, 1168 (10th Cir. 2001).


59

The serious harm at issue can be physical or mental. “The touchstone of the

Eighth Amendment is the health of the inmate. While the prison administration

may punish, it may not do so in a manner that threatens the physical and mental

health of prisoners,” Madrid v. Gomez, 889 F. Supp. 1146, 1260 (1995) (emphasis

in original); accord Hudson v. McMillian, 503 U.S. 1, 16 (Blackman, J. concurring

in judgment). This is because “[m]ental health, just as much as physical health, is a

mainstay of life. Indeed, it is beyond any serious dispute that mental health is a

need as essential to a meaningful human existence as other basic physical demands

[of] our bodies…” Madrid, 889 F. Supp. at 1261.

In order to show that a risk—mental or otherwise—is sufficient to meet the

objective standard of the Eighth Amendment, a plaintiff must provide evidence

that there is a substantial risk of serious harm. Helling, 509 U.S. at 33; Farmer,

511 U.S. at 834. However, the risk does not need to be proved with regard to an

individual plaintiff; rather, a showing that “all prisoners in [the challenged]

situation face such a risk” is adequate to establish an Eighth Amendment violation.

Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008). In Helling, for example,

the Court held that a prisoner stated a substantial risk of serious harm because he

was exposed to second-hand smoke from other prisoners. 509 U.S. at 35. In

making this determination the Court noted it had repeatedly granted relief to

prisoners where the risk of harm was substantial, even if it would not impact every


60

single prisoner exposed to it. Id. at 33. To underscore this point, the Court

specifically rejected the notion that “only deliberate indifference to current serious

health problems of inmates is actionable.” Id. (emphasis added).

1. The District Court Erred as a Matter of Law by Not Examining Whether Mr. Silverstein was at Substantial Risk of Harm.

Consistent with the standard set forth above, the district court correctly recited

that one means to satisfy the objective prong of the Eighth Amendment test is for a

plaintiff to show “he is incarcerated under conditions posing a substantial risk of

serious harm.” (MSJ Opinion, 001955 (quoting Farmer v. Brennan, 511 U.S. 825,

832 (1994).) The court further observed that if a plaintiff provides sufficient

evidence of a risk of harm, his claim should survive summary judgment. (Id.,

001957.)

Despite correctly describing the law, the district court then disregarded this

standard by failing to make any assessment of whether Mr. Silverstein’s thirty

years in solitary confinement placed him at substantial risk of serious harm. The

district court concluded that Mr. Silverstein “does not objectively face a risk of

serious harm” (Id., 001962); however, the only support provided for this

pronouncement is its (also disputed) finding that Mr. Silverstein is not suffering

current harm (Id., 001962-63). Both the Supreme Court and the Tenth Circuit

have made clear that proof of current harm is not required to demonstrate an


61

Eighth Amendment violation grounded in a claim that asserts that the objective

prong is met by virtue of a risk of harm. Benefield v. McDowall, 241 F.3d 1267,

1272 (10th Cir. 2001) (citing Helling, 509 U.S. at 33). The Tenth Circuit has

explained that “the argument that mere risk is insufficient to establish the objective

component of an Eighth Amendment violation” is precisely what the Supreme

Court rejected in Helling. Id.

Here, the district court’s decision to examine only whether Mr. Silverstein has

sustained current harm is counter to Tenth Circuit and Supreme Court precedent.

In failing to analyze whether Mr. Silverstein presented evidence from which a

reasonable factfinder could conclude that he is at substantial risk of future harm,

the court ignored both this important means of satisfying the objective prong of the

Eighth Amendment test, as well as ample evidence that Mr. Silverstein is, in fact,

at significant risk of harm if he continues to be held in solitary confinement. This

is exactly the type of evidence that the Supreme Court and Tenth Circuit require

courts to assess in determining whether the objective prong of the Eighth

Amendment is satisfied. Benefield, 241 F.3d 1267, 1272 (10th Cir. 2001); Ramos

v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980); Brown v. Narvais, 265 Fed. 734

(10th Cir. 2008).


62

Thus, by failing to examine evidence of risk, the district court ignored the

prevailing legal standards and committed clear error. This error requires reversal

for consideration of the evidence of risk of future harm to Mr. Silverstein.

2. In the alternative, the District Court erred by resolving a factual dispute—whether Mr. Silverstein is at substantial risk of serious harm—in favor of the moving party. Alternatively, if it is inferred that the district court did consider the evidence

of whether—by holding him in solitary confinement for over thirty years—the

BOP is placing Mr. Silverstein at risk of harm, it erroneously resolved a factual

dispute in favor of the moving party.

Mr. Silverstein presented substantial evidence of the risk of continuing to

hold him in isolation. A fact-finder could rely on the extensive—and near

universal—research that extended solitary confinement places a person at grave

risk of psychological harm. As Dr. Haney explains, the voluminous body of

research supports the common-sense point that extended solitary confinement

results in numerous psychological harms. (Haney Rpt., 001116-32.) These

potential harms are serious and painful, including deep emotional disturbances

which can lead to an increase in suicidal thoughts, self-mutilation, depression,

anxiety, and pain and suffering. (Id., 001118-19.) That a fact-finder could rely on

these is reasonable, as others in the psychological community have concluded that


63

the use of solitary confinement places prisoners at grave risk. (APA Testimony,

002121; Psychologists for Social Responsibility Testimony, 001748-49.)

The evidence concerning Mr. Silverstein’s own experience in solitary

confinement underscores the significance of the risk of mental harm. The district

court had before it evidence that Mr. Silverstein has experienced nearly all of the

psychological harms characteristic of a person held in long-term isolation. (Haney

Rpt., 001153-56.) The BOP’s own records indicate a multitude of occasions where

Mr. Silverstein has reported negative health effects—reports that began over two

decades ago and continue to this day. (Id., 001139-53; Mental Health Rec.,

001028, 001030, 001033-34, 001037, 001040, 001044.) Relatedly, the longer he

remains in conditions of isolation—particularly as he ages—he is put at increased

substantial risk of serious harm or injury. (Williams Decl. ¶ 10, 001342-43.)

Based on Mr. Silverstein’s evidence that he is suffering harm coupled with

that regularly found in solitary confinement, a reasonable fact-finder could

conclude that his harm will continue, and potentially worsen, as he ages and

remains alone for longer. While the precise form of harm that will befall Mr.

Silverstein in the future is unknown—his symptoms have varied over time as

would be expected over such an extended period—the risk that he will continue to

be harmed without human contact and environmental stimulation is well-

supported, by research, by common sense, and by the record in this case.


64

In disputing this evidence, the BOP never explicitly addressed the issue of

whether Mr. Silverstein is at substantial risk of future harm resulting from his

continued isolation.6 The BOP failed to present evidence countering the extensive

research studies linking isolation and psychological harm. The BOP argued only

that Mr. Silverstein was not suffering a current harm, allowing the inference that

he therefore was not at future risk. For example, the BOP’s expert Dr. Burzstjan

explained that his opinion was that Mr. Silverstein had suffered no psychological

damage as a result of his extended segregation, and that his current conditions were

“prudent and reasonable.” (Burzstjan Decl. ¶¶ 5-7, 000661.) But the law is clear

that current harm is not necessary in order to demonstrate a risk. Helling, 509 U.S.

at 33. At best, the evidence presented by the BOP demonstrates a dispute on the

issue of whether Mr. Silverstein was at risk of harm because of his unprecedented

length of isolation.

In light of this evidence concerning risk of harm, the district court

improperly resolved the factual dispute in favor of the moving party, finding that

Mr. Silverstein was not at serious risk of harm. In so doing, the court failed to

address any of the evidence of risk submitted by Mr. Silverstein, save a single

mention of the research documenting the harm caused by prolonged isolation.

6 The BOP did argue that if any risk existed, it was not deliberately disregarded because mental health staff regularly checked on Mr. Silverstein’s mental health status. (MSJ Reply, 001876.)


65

(MSJ Opinion, 001963.) Specifically, the court found that this “evidence of mental

harm relies on studies performed on other prisoners” and was therefore

insufficient. (Id.) This ruling was in error, as risk can be—and regularly is—

demonstrated by showing evidence related to other individuals in circumstances

similar to the plaintiff.7 This finding was also the improper resolution of a factual

dispute in favor of the moving party.

Because a reasonable fact-finder could have relied upon the evidence

presented by Mr. Silverstein to hold that he satisfied the objective element of the

Eighth Amendment test by demonstrating he is at substantial risk of harm, the

district court was required to allow this issue to proceed to trial for full hearing.

Thus, the district court erred and should be reversed.

VII. CONCLUSION

Because the grant of summary judgment on the Eighth Amendment claim

was error, the Court should reverse and remand for trial on the merits.

7 Indeed, nearly every medical case showing that a person is at risk of harm is based on medical knowledge of what is likely to happen to the average person. A prisoner is not required to have his cancer develop to Stage 4 before treatment is required; rather, the risk is actionable based on the knowledge of what is likely to happen, based on other, prior patients.


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STATEMENT OF COUNSEL AS TO ORAL ARGUMENT

Oral argument is requested in this case as it will assist the Court in

addressing the factual record, the nuance in both the factual and legal analysis, and

the reasons the district court’s decision was erroneous.

Respectfully submitted this 20th day of February 2013.

s/ Laura Rovner Laura Rovner s/ Brittany Glidden Brittany Glidden STUDENT LAW OFFICE 2255 E. Evans Avenue Denver, CO 80208 303-871-6140

ATTORNEYS FOR PLAINTIFF/APPELLANT

CERTIFICATE OF COMPLIANCE WITH WORD COUNT

Under FRAP 32(a)(7), undersigned counsel certifies that this brief is set in the proportionate font Times New Roman, 14-point, and contains a word count of 13,581 words.

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS

I hereby certify that all required privacy redactions have been made to this document. I further certify that the foregoing document has been scanned for viruses with Symantec Endpoint Protection Version: 11.0.5002.333, Definition update: Monday, November 26, 2012 r20, and, according to the program, is free of viruses.


67

CERTIFICATE OF COMPLIANCE WITH FILING VIA ECF I hereby certify that the hard copies of this brief to be submitted to the Court are exact copies of the version submitted electronically.

s/ Laura Rovner

Laura Rovner (Digital)


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CERTIFICATE OF SERVICE

I hereby certify that on February 20, 2013, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses:

[email protected] [email protected]

/s/ Brittany Glidden Brittany Glidden


2013.02.20 - opening brief

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