Magluta was indicted by a grand jury in the Southern District of Florida in April 1991 on twenty-four drug trafficking and conspiracy charges. Magluta was arrested in October 1991 and placed in federal custody. Prior to his trial and eventual acquittal in 1996, Magluta was held in three different federal facilities — first in Miami, then in Talledega, and later at USP Atlanta.

Magluta filed the instant Bivens action in the United States District Court for the Northern District of Georgia in 1994 during his pretrial detention at USP Atlanta, and the case has been progressing through the federal courts ever since. Initially, the action was stayed in the district court in Georgia pending the outcome of Magluta's criminal trial in Florida. When Magluta was acquitted of all the drug trafficking and conspiracy charges in early 1996, the stay in the Bivens action was lifted by the district court. However, around the time the stay was lifted, Magluta was indicted in the Southern District of Florida for passport fraud. Magluta was released on bond, and near the end of his February 1997 trial on that charge, failed to appear in court. An arrest warrant was issued for Magluta, and he was convicted in his absence on February 7, 1997.

On March 25, 1997, while Magluta was still a fugitive, the district court in Georgia granted the defendants' motion to dismiss the instant Bivens action citing the fugitive disentitlement doctrine. When Magluta was recaptured in April 1997, he filed a notice of appeal from the district court's order. On appeal, we reversed the district court's order of dismissal and remanded the case, concluding that the fugitive disentitlement doctrine was not appropriately applied because there was "no nexus between Magluta's fugitive status and his Bivens action." Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998).

On remand, the district court once again dismissed Magluta's Bivens action, this time on Rule 12(b)(6) grounds, citing failure to state a claim upon which relief could be granted. On July 13, 2001, we vacated the district court's dismissal and again remanded, stating that Magluta's Original Complaint ("Original Complaint") was a "quintessential `shotgun' pleading of the kind we have condemned repeatedly," but determining that the appropriate disposition was still to remand with instruction that the district court require Magluta to replead his claims so that his Complaint would comply with the "short and plain statement of the claim" requirement of Rule 8 of the Federal Rules of Civil Procedure. Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001).

After our second remand, Magluta filed his Complaint on November 21, 2001. The defendants again brought a motion to dismiss pursuant to Rule 12(b)(6), and the district court again granted the defendants' motion on March 4, 2003. Magluta timely appealed, and we now address the appropriateness of the district court's March 4, 2003 dismissal.

We review a dismissal for failure to state a claim pursuant to Rule 12(b)(6) de novo. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.1998). We accept the facts of the complaint as true and view them in the light most favorable to the nonmoving party. Id. Dismissal pursuant to Rule 12(b)(6) is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Magluta v. Samples, 256 F.3d at 1283-84 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957)).

We review the district court's grant of qualified immunity de novo to the extent the appeal concerns pure issues of law, including whether the underlying law governing official conduct was clearly established. Smith v. Mattox, 127 F.3d 1416, 1418 (11th Cir.1997).

Magluta's first argument on appeal is that the district court erred in granting the defendants' motion to dismiss because the Complaint alleges that the harsh conditions of pretrial detention described were for the purpose of punishment and were not justified by any legitimate governmental objectives.

Due process requires that a pretrial detainee not be punished prior to a lawful conviction. Bell v. Wolfish, 441 U.S. at 535, 99 S. Ct. at 1872; McMillian v. Johnson, 88 F.3d 1554, 1564 (11th Cir. 1996), amended by, 101 F.3d 1363 (11th Cir.1996). However, the government may detain individuals to ensure their presence at trial and may subject them to the conditions and restrictions of the detention facility so long as those conditions and restrictions do not amount to punishment. Bell v. Wolfish, 441 U.S. at 536-37, 99 S. Ct. at 1873. The determination of whether a condition of pretrial detention amounts to punishment turns on whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate government purpose. Id. at 538, 99 S. Ct. at 1873; McMillian, 88 F.3d at 1564. An intent to punish on the part of detention facility officials is sufficient to show unconstitutional pretrial punishment. Bell v. Wolfish, 441 U.S. at 538, 99 S. Ct. at 1873-74; McMillian, 88 F.3d at 1564. Further, "if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment[.]" Bell v. Wolfish, 441 U.S. at 539, 99 S. Ct. at 1874.

In dismissing Magluta's due process claim based upon Bell v. Wolfish, the district court found that Magluta had failed to allege facts to show that the conditions of his confinement were imposed as a punishment. The district court specifically stated:

There is no indication that the detention was arbitrary or purposeless; indeed, the record reflects that Plaintiff was placed in administrative detention because he and his co-defendants were under investigation for at least four separate escape plots. See Original Complaint ¶ 194 (quoting habeas hearing testimony of Defendant Garrett). Thus, the Court may not infer that the purpose of the detention was punitive. Plaintiff has therefore failed to establish that his administrative detention constitutes punishment and thus has failed to allege that he has a protected liberty interest under the Fifth Amendment itself giving rise to a due process right.

Magluta v. Samples, No. 94-CV-2700-ODE, at 9 (N.D.Ga. Mar. 4, 2003) (hereinafter "District Court Order"). The above quoted language makes clear that the district court premised its holding on its determination that the Original Complaint reflected that Magluta was placed in administrative detention for legitimate purposes while under investigation for escape plots. The district court held, as a result of determining that there was a legitimate purpose, that Magluta's detention was not arbitrary or purposeless and that an intent to punish could not be inferred.

Having reviewed the Original Complaint3 in its entirety and construing it in a light most favorable to Magluta, we conclude that the district court failed to take account of reasonable inferences favorable to Magluta in the Original Complaint and in the Complaint. Magluta's Original Complaint clearly alleges that the harsh treatment of his pretrial confinement was solely for the purpose of punishment or retribution, and was not justified by any legitimate government objectives. See Original Complaint ¶ 117 ("[Defendants] retaliated against Plaintiff for his codefendant's exercise of constitutionally protected conduct by ordering Plaintiff back to `the hole' without cause, solely for the sake of punishment because the codefendant had initiated habeas corpus proceedings in another district."); id. ¶ 145 ("Plaintiff's treatment by the Defendant has been characterized by retaliation for constitutionally protected conduct. That is, the more the Plaintiff complains to prison and jail officials, or even federal judges, it is apparent that he is treated by the Bureau of Prisons and the named Defendants in a more severe manner."); id. ¶ 149 ("In particular, administrative detention has been used in this case as an unconstitutional pretext for indefinite solitary confinement with a purely retributive purpose.").

It is true that paragraph 194 of the Original Complaint states that defendant Garrett testified at a habeas hearing that it gave him great concern that Magluta was under investigation for four separate escape plots. However, that statement must be read within the context of the other allegations of the Original Complaint, in which Magluta alleges that the escape concern was based upon false and fabricated information without even minimal indicia of reliability for the purpose of punishing Magluta and inhibiting his preparation for his criminal trial. For example, although Magluta alleges that defendants Samples and Garrett considered Magluta to be an escape risk, id. ¶¶ 54, 194, his allegation is that this was based upon misinformation, id. ¶ 55, and also fabricated information, id. ¶ 140, which lacked even minimal indicia of reliability, id. ¶¶ 197, 200, and that defendants Samples and Garrett perpetrated a campaign of misinformation for the purpose of punishing Magluta and to inhibit his trial preparation for his criminal defense, id. ¶ 56. Magluta also alleged that his harsh treatment was unlike the treatment of other pretrial detainees, even those also in administrative detention. Id. ¶ 135.

In addition to the foregoing allegations, Magluta has alleged additional facts to support his contention that placing him in solitary confinement was for the purpose of punishment. He alleged that shortly after being transferred to USP Atlanta and placed in solitary confinement, he filed a petition for a writ of habeas corpus; that following a status conference in which the magistrate judge encouraged settlement, defendants removed Magluta from solitary confinement and placed him in the general population for more than two months; that he conducted himself appropriately during that time; and that, although no security threat was apparent, the four defendants returned him to solitary confinement solely for the sake of punishment and to retaliate against him for the exercise of constitutionally protected rights. Id. ¶¶ 113-17.

We do not doubt that the district court's inference from paragraph 194 of the Original Complaint — that Magluta was placed in administrative detention because of a legitimate concern about escape risk — was a reasonable inference. However, in view of the context of the Original Complaint as a whole as above summarized, and in view of our obligation to take all reasonable inferences in favor of Magluta, we cannot conclude that the district court's inference is the only reasonable inference from the allegations. Rather, we conclude that Magluta's allegations in the Original Complaint give rise to a reasonable inference that Magluta's placement in solitary confinement was for the purpose of punishment.4

Having determined that the district court failed to take into account all of the reasonable inferences with respect to any legitimate reason for Magluta's solitary confinement, we turn to the Complaint actually before us to evaluate the allegations describing the alleged conditions of Magluta's solitary confinement and the alleged purpose therefor. Magluta alleges in his Complaint that he spent more than 500 days in administrative detention under conditions constituting solitary confinement, namely that he was incarcerated in a "closet-size concrete room" from which he was unable to communicate even with the other inmates on his cellblock because his cell was closed by a "solid high security thick metal door." See Complaint ¶ 39. Magluta alleges that at all pertinent times he was confined to his cell, even during meals which were placed on trays and pushed through the cell door. Id. ¶ 44. Magluta remained in his cell except for limited social or legal visits. Id. ¶ 42. Magluta further alleges that he was not permitted to have a job at USP Atlanta, not permitted to participate in joint sacrament and prayer, not permitted to participate in educational classes, and not permitted to participate in any programming with other pretrial detainees — all in violation of the defendants' own governing rules which entitle pretrial detainees, even those in administrative detention, to have the same rights and privileges as other inmates. Id. ¶¶ 45-49. Magluta alleges that he was punished in violation of his Fifth Amendment due process rights by this solitary confinement under the pretext of ongoing administrative detention. Id. ¶¶ 16, 50. He alleges that it was unreasonable for any official to believe that it was constitutional to hold him for over 500 days in solitary confinement without any of the required hearings and that the defendants' actions in doing so lacked good faith. Id. ¶¶ 35, 38. Such actions, he alleged, were virtually unprecedented for pretrial detainees, id. ¶ 43, and were egregious violations, id. ¶ 38.

Probably the most crucial factor pertinent to this claim is the Rule 12(b)(6) posture. In this posture, we must take all reasonable inferences in favor of the plaintiff, Magluta. As discussed immediately above, we must therefore infer that Magluta was confined under extremely harsh conditions — in solitary confinement (under conditions unlike other pretrial detainees or even convicted prisoners), locked in an extremely small, closet-sized space, and with minimal contact with other human beings for a prolonged time exceeding 500 days. And, as also discussed above, we must accept the reasonable inference that these harsh conditions were not imposed because of any concern about escape risks, but rather were imposed solely for the sake of punishment and without any apparent reason at all other than punishment, i.e., for no legitimate reason.5

We now apply the law to the foregoing facts that we must assume for purposes of this appeal. As noted above, the Supreme Court in Bell v. Wolfish held:

In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.

441 U.S. at 535, 99 S. Ct. at 1872. An intent to punish is sufficient. Id. at 538, 99 S. Ct. at 1873; McMillian, 88 F.3d at 1564. And an "intent to punish may be inferred when a condition of pretrial detention is not reasonably related to a legitimate governmental goal." McMillian, 88 F.3d at 1564 (citing Bell v. Wolfish, 441 U.S. at 538, 99 S. Ct. at 1874). Because Magluta has made allegations in his Complaint with sufficient specificity such that we must assume for purposes of this appeal that the solitary confinement at issue here was imposed for the purpose of punishment, and that there was no legitimate reason at all for such confinement, we readily conclude that Magluta's due process rights were violated.

Finally, we conclude that the defendants would not be entitled to qualified immunity with respect to this claim on the basis of the facts we must assume in this appeal. In McMillian, we applied the principles of Bell v. Wolfish to a time frame comparable to the time frame of the instant case, and held that they were clearly established. McMillian, 88 F.3d at 1564-66. We held that "an intent to punish suffices to show unconstitutional pretrial punishment," and that an "intent to punish may be inferred when a condition of pretrial detention is not reasonably related to a legitimate governmental goal." Id. at 1564. In the instant case, as we have noted above, we must assume that harsh, solitary confinement conditions were imposed on Magluta (and not on other pretrial detainees or even convicted prisoners) for a prolonged duration and for no reason at all except punishment, i.e., for no legitimate reason at all. Applying those facts to the principles of law which McMillian held were clearly established, we cannot but conclude that defendants would not be entitled to qualified immunity if Magluta can prove these facts.

B. Procedural Due Process and 28 C.F.R. § 541.22

Magluta's second argument on appeal is that the district court erred in dismissing his procedural due process claim. With respect to this claim, Magluta argues that 28 C.F.R. § 541.22, which governs the Bureau's placement and review of inmates in administrative detention,6 creates a protected liberty interest, and that his placement and continued confinement in administrative detention in the absence of the notice, hearings, and periodic review violated his procedural due process rights under the Fifth Amendment. The district court did not address the constitutional issue — whether Magluta has alleged conduct which violated his procedural due process rights. Instead, the district court held that the law at the time did not clearly establish that § 541.22 created a liberty interest. For the reasons that follow, we conclude that the district court erred in this determination; we conclude that the legal landscape as of the time of the conduct challenged here clearly established that § 541.22, as applied to the alleged conditions of confinement, did give rise to a liberty interest.7

At the time of the relevant conduct in the instant case, the determination of whether a prison regulation had created a liberty interest protected by the Due Process Clause was governed by the "mandatory language" analysis used by the Supreme Court in Hewitt v. Helms, 459 U.S. 460, 472, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). In Hewitt, the Supreme Court found that the State of Pennsylvania, in enacting regulations for the use of administrative detention, had created a liberty interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters. Id. at 471-72, 103 S. Ct. at 871. In so holding, the Supreme Court focused on the "unmistakably mandatory character" of the language used in the regulations, "requiring that certain procedures `shall,' `will,' or `must' be employed ... and that administrative segregation ... not occur absent specified substantive predicates." Id. The Court was "persuaded that the repeated use of explicit mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest." Id.

We applied the Hewitt analysis in Sheley v. Dugger, 833 F.2d 1420 (11th Cir. 1987) and McQueen v. Tabah, 839 F.2d 1525 (11th Cir.1988), in holding that the mandatory language and substantive predicates in the Florida Department of Corrections' rules and regulations concerning administrative segregation and close management created a liberty interest for inmates in remaining in the general prison population. In equating the Florida Department of Corrections' rules to those at issue in Hewitt, we stated:

The administrative confinement rules, for example, provide that an inmate can be placed in administrative confinement only for certain reasons: if "disciplinary charges or criminal charges" are pending against the inmate and the "presence of the inmate in the general population would present a clear danger;" if an "investigation is pending and the presence of the inmate in the general prison population might interfere with that investigation;" if the inmate would create a risk because of medical (including psychiatric) reasons; or if the "facts clearly indicate that the inmate must be removed from the general inmate population for the safety of any [persons] or for the security of the institution." Fla.Admin.Code Ann. §§ 33-3.0081(a)(a)-(d) (Supp.1985). The rules also state that: "administrative confinement shall be for the shortest period of time necessary," id. at §§ 33-3.0081 (3) (emphasis added); the reason for placement "shall be explained to the inmate, and he shall be given an opportunity to present his views," id. at §§ 33-3.0081(4)(a) (emphasis added); and a "formal evaluation report shall be required" if the inmate is kept in administrative confinement for more than thirty days, id. at §§ 33-3.0081(6)(a) (emphasis added). Likewise, the close management rules provide that an "inmate placed in [CM] shall be given a hearing" before a review team, id. at §§ 33-3.0083(4)(a) (emphasis added); that the review team "shall inform the inmate of the basis for its decision," id. at §§ 33-3.0083(4)(b) (emphasis added); that a "formal evaluation report is required on inmates in [CM] each 30 days," id. at §§ 33-3.0083(6)(d); and that the "goal of the Close Management Review Team shall be toward returning the inmate to open population as soon as the facts of the case suggest it can be safely done," id. at §§ 33-3.0083(6)(e) (emphasis added).

Sheley, 833 F.2d at 1424; see also McQueen, 839 F.2d at 1525.

Our review of § 541.22 convinces us that it contains substantive predicates and mandatory language extremely similar to those State regulations at issue in Hewitt and Sheley that were found to create a liberty interest. The substantive predicates for administrative detention are specifically provided in § 541.22(a). Under § 541.22(a), a warden may place an inmate in administrative detention when the inmate's presence in the general population poses a serious threat to the "life, property, self, staff, other inmates or to the security or orderly running of the institution;" when the inmate requests such detention for his or her own protection, or the staff determines that such detention is necessary for the inmate's own protection; when the inmate is pending an investigation or adjudication for the violation of a Bureau regulation or a criminal act; or when the inmate is in holdover status pending transfer or a new commitment pending classification. Thus § 541.22 contains similar substantive predicates to those in Sheley which included, inter alia, pending disciplinary charges or criminal charges against the inmate and the safety concerns of any individual or the security of the institution. Sheley, 833 F.2d at 1424.

Likewise, § 541.22 contains mandatory language exactly like the regulation at issue in Sheley. The Florida regulation stated that "administrative confinement shall be for the shortest period of time necessary," and mandated a number of formal and informal reviews at various time intervals. Id. Section 541.22(c)(1) states that the appropriate officer "shall release an inmate from administrative detention when reasons for the placement cease to exist." Section 541.22(b) mandates that "the Warden shall prepare an administrative detention order detailing the reasons for placing an inmate in administrative detention," and that the "[s]taff shall deliver this order to the inmate within 24 hours of the inmate's placement in administrative detention." Further, § 541.22(c)(1) provides that the Segregation Review Official "shall conduct a record review within three work days of the inmate's placement in administrative detention and shall hold a hearing and formally review the status of each inmate who spends seven continuous days in administrative detention, and thereafter shall review these cases on the record (in the inmate's absence) each week, and shall hold a hearing and review these cases formally at least every 30 days." Section 541.22(c)(1) further indicates that the inmate has the right to appear at the above hearing. Additionally, § 541.22(c)(1) mandates that the "[s]taff will conduct a psychiatric or psychological assessment, including a personal interview, when administrative detention continues beyond 30 days." Finally, § 541.22(a)(6) mandates further procedures and approvals necessary for placements in administrative detention exceeding ninety days, including review by the Regional Director and the Assistant Director of the Correctional Programs Division.

We conclude that the substantive predicates and extensive use of mandatory language in § 541.22 would create a liberty interest in remaining in the general prison population under the analysis used by the Supreme Court in Hewitt and by this Court in Sheley and McQueen. This analysis was applicable at the time of the challenged conduct in the instant case.

However, after the challenged conduct took place, the Supreme Court expressly abandoned Hewitt's methodology.8 See Sandin v. Conner, 515 U.S. 472, 483 n. 5, 115 S. Ct. 2293, 2300 n. 5, 132 L. Ed. 2d 418 (1995). The Supreme Court stated that "the search for a negative implication from mandatory prison regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause." Id. The Court then stated:

States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at 483-84, 115 S. Ct. at 2300 (citation omitted). Applying this standard, the Supreme Court determined that the Hawaii prison regulation at issue in Sandin did not give rise to a protected liberty interest upon the plaintiff/prisoner's transfer to disciplinary confinement. Id. at 487, 115 S. Ct. at 2302. The Supreme Court specifically stated:

[The prisoner's] confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction. Indeed, the conditions at [the prison] involve significant amounts of "lockdown time" even for inmates in the general population. Based on a comparison between inmates inside and outside disciplinary segregation, the State's action in placing him there for 30 days did not work a major disruption in his environment.

Id. at 486, 115 S. Ct. at 2301.

There would be no liberty interest and no constitutional violation in the instant case if the Sandin "atypical and significant hardship" standard were not met. However, we conclude that Magluta's allegations would support the finding of a liberty interest under the new Sandin standard; thus we conclude that Sandin does not operate to erode the existence of a liberty interest which was indicated by the state of the law as of the time of the conduct at issue. Again, the Rule 12(b)(6) posture of this case requires us to take all reasonable inferences in favor of Magluta. Therefore, we must infer that Magluta was confined under extremely harsh conditions — in solitary confinement (under conditions unlike other pretrial detainees or even convicted prisoners), locked in an extremely small, closet-sized space, and with minimal contact with other human beings for a prolonged time exceeding 500 days. The conditions of confinement as alleged amount to an atypical and significant hardship as compared to the ordinary incidents of imprisonment to be expected by a pretrial detainee. Therefore, we conclude that Magluta has alleged the protection of a liberty interest under either the Hewitt or the Sandin standard.9

Having determined that Magluta's allegations, if true, establish a liberty interest, and a constitutional violation in the absence of due process, we turn to the question of whether the district court erred in concluding that the defendants were entitled to qualified immunity. The district court granted qualified immunity based upon its determination that at the time in question — October 1993 through April 1995 — clearly established federal law did not show that the solitary confinement of a pretrial detainee implicated a pretrial detainee's due process rights. We conclude that the district court erred in this determination.

For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515, 153 L. Ed. 2d 666 (2002). The very action in question does not have to have been found unlawful, but in light of pre-existing law the unlawfulness must be apparent. Id. The salient question is whether the state of the law at the time of the violation gave the officials fair warning that their alleged actions were unconstitutional. Id. at 741, 122 S. Ct. at 2516. In the instant case, we conclude that ample federal law existed at the time of the challenged conduct to give fair warning to the defendants that it was unconstitutional to hold Magluta in solitary confinement for 500 days for the purpose of punishment and with virtually no procedural protection in the form of periodic reviews.

In Hewitt, the Supreme Court, focusing on the substantive predicates and "language of an unmistakably mandatory character," determined that the State of Pennsylvania had created a liberty interest with respect to remaining in the general prison population. Hewitt, 459 U.S. at 471-72, 103 S. Ct. at 871. The Supreme Court apparently included the most relevant portions of the Pennsylvania regulations in a footnote to the opinion. Id. at 471 n. 6, 103 S. Ct. at 871 n. 6. Section 541.22, at issue in the instant case, requires that much greater procedural protections "shall," "will," or "must" be employed, and contains substantive predicates giving prison officials even less discretion, than the Pennsylvania regulation at issue in Hewitt. See id.; 28 C.F.R. § 541.22. The Supreme Court having found a liberty interest on the basis of the lesser procedural protections at issue there, we can apply the Hewitt methodology to the greater protections and more clearly mandatory regulations at issue here, and conclude a fortiori that § 541.22 creates a liberty interest on these facts.

Moreover, in both Sheley in 1987 and McQueen in 1988, we recognized a protected liberty interest created from a Florida regulation governing administrative detention. As previously discussed, that Florida regulation was extremely similar to § 541.22 at issue in the instant case in that both provide very similar substantive predicates for administrative confinement, both mandate very similar notice and review procedures, and both express these requirements with the repeated use of terms like "shall." See Sheley, 833 F.2d at 1424-25; McQueen, 839 F.2d at 1527-29; 28 C.F.R. § 541.22.

Therefore, even though this Court has not specifically held that § 541.22 created a protected liberty interest, the defendants had fair and clear warning from the Supreme Court's holding in Hewitt and our holdings in Sheley and McQueen that their actions in holding Magluta in solitary confinement for 500 days for no legitimate purpose and without any periodic review violated his constitutional rights. The district court erred in failing to recognize that these precedents clearly established a liberty interest in this case.

We recognize that the finding of a liberty interest in Hewitt, Sheley and McQueen was premised upon the "mandatory language" methodology for determining whether a protected liberty interest exists, and that the Supreme Court expressly abandoned the Hewitt "mandatory language" methodology in Sandin in favor of the atypical and significant hardship test. Sandin, 515 U.S. at 484 n. 5, 115 S. Ct. at 2300 n. 5. However, Sandin was decided in June 1995, two months after the relevant period in the instant case ended. Hewitt, Sheley and McQueen provided the defendants fair warning that their actions in holding Magluta in solitary confinement violated Magluta's constitutional rights at the time those actions were taking place. Although the result in this case would be different if the new Sandin methodology indicated no constitutional violation at all — the fair warning or qualified immunity issue would then be moot — the subsequent change in methodology does not in this case erode the fact that Magluta's constitutional rights were clearly established at the pre-Sandin time of the challenged conduct. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987); Tellier v. Fields, 280 F.3d 69, 80 n. 4 (2d Cir.2000). Therefore, while the methodology utilized to determine whether there was a liberty interest and constitutional violation may have subsequently changed, the outcome of that determination remained the same under the facts as alleged here, and the defendants had fair warning at the time of the alleged violation that their actions were violating Magluta's constitutional rights, at least with respect to periodic review.10

For the foregoing reasons, we affirm the judgment of the district court with respect to all of Magluta's claims,11 except his due process claim of intentional punishment of a pretrial detainee and his procedural due process claim premised upon the presence of a liberty interest. With respect to those claims, we vacate the judgment of the district court and remand for further proceedings, noting however, that due to the Rule 12(b)(6) procedural posture of the case, we have accepted the facts as alleged in the complaint as true and have reviewed them most favorably to Magluta. We voice no opinion as to whether further development of the record will permit the defendants to reassert their qualified immunity defense or require some other disposition of Magluta's claims.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.