Case: 18-11322     Date Filed: 12/20/2018   Page: 1 of 16


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-11322
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 5:15-cv-00419-TES


TIMOTHY R. JOHNSON,

                                                                Plaintiff - Appellee
                                                                  Cross Appellant,

                                      versus

HOUSTON COUNTY GEORGIA, et al.,

                                                                         Defendants,

CITY OF WARNER ROBINS, GEORGIA,
DEBORAH D MILLER , Detective,
individually and in her official capacity as an officer of Warner Robins
Police Department ,
MALCOLM H DERRICK, JR, Detective,
"Mac", individually and in his official capacity as an officer of Warner Robins
Police Department,
 H. D. DENNARD , Captain,
individually and in his official capacity as an officer of Warner Robins
Police Department,
R. G. WEST, Lieutenant,
individually and in his official capacity as an officer of Warner Robins
              Case: 18-11322     Date Filed: 12/20/2018   Page: 2 of 16


Police Department, et al.,

                                                              Defendants-Appellees,

MARGARET HAYS,

                                                              Defendant - Appellant
                                                                   Cross Appellee.

                             ________________________

                   Appeals from the United States District Court
                       for the Middle District of Georgia
                          ________________________

                                (December 20, 2018)

Before WILSON, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM:

      In 2006, the Georgia Supreme Court overturned plaintiff Timothy Johnson’s

convictions and life sentences for murder and armed robbery, concluding that his

guilty plea was not knowing and voluntary. Johnson was re-indicted and transferred

to Houston County Jail to await trial. Over seven years later, he was acquitted.

      After his release, Johnson brought this counseled federal civil-rights lawsuit

alleging malicious prosecution and violations of his substantive and procedural due-

process rights. The district court resolved all claims against Johnson save one: a

substantive-due-process claim based on his pretrial confinement in administrative

segregation after his convictions were overturned in 2006. For that claim, the court

denied qualified immunity to defendant Sergeant Margaret Hays, who made

                                          2
             Case: 18-11322    Date Filed: 12/20/2018   Page: 3 of 16


permanent Johnson’s administrative-segregation classification in January 2011.

Hays now appeals the denial of qualified immunity, and Johnson cross-appeals the

grant of summary judgment on a procedural-due-process claim also based on his

confinement in administrative segregation.

                                        I.

      In September 1984, Taressa Stanley, a convenience-store clerk, was shot

during an armed robbery and later died from her injuries. Johnson was charged with

the armed robbery and murder, and he pled guilty to those charges in December

1984. In February 2006, the Georgia Supreme Court vacated Johnson’s convictions,

concluding that his guilty plea was not knowing and voluntary because the record

did not show that he had been advised at the plea hearing of certain constitutional

rights. Johnson v. Smith, 

, 471 (Ga. 2006).

      The state decided to retry Johnson, and he was transferred from Georgia State

Prison to Houston County Jail (the “Jail”) in March 2006 to await trial. The grand

jury issued a new indictment in June 2006, but the jury trial, at which Johnson was

acquitted, was greatly delayed and did not take place until December 2013, for

reasons not known to this panel.

      Upon his transfer to the Jail, Johnson was designated a “medium maximum

security” detainee and assigned to general population in “H-pod,” where he occupied

a single-person cell. In May 2009, the Jail changed its pod assignments because


                                        3
             Case: 18-11322    Date Filed: 12/20/2018   Page: 4 of 16


particular pods, including H-pod, were reaching capacity.         As part of the

restructuring, H-pod was reassigned as administrative segregation, which is meant

for detainees who cannot get along with others or are required to be by themselves.

      Defendant Hays worked at the Jail during the pod restructuring and became

chairperson of the Inmate Classification Committee in 2010. She testified that,

during the restructuring, detention officers asked the detainees housed in H-pod if

they would like to go to general population. According to Hays, Johnson asked to

remain in H-pod because he wanted a room by himself. Johnson, however, denies

ever being asked to go to the general population or telling Hays or any other

detention officer that he wished to remain in H-pod. And the classification records

do not reflect that Johnson voluntarily asked to stay in H-pod. Rather, the records

simply list his charges—murder, armed robbery, and aggravated battery—as the

reasons for his placement.

      The Jail periodically conducted inmate-classification reviews. After H-pod’s

restructuring, Johnson’s classification was reviewed three times—on March 12,

2010, June 16, 2010, and January 11, 2011. By the time of the reviews, Hays headed

the Classification Committee and therefore determined Johnson’s classification.

During the January 2011 review, Hays made permanent Johnson’s classification in

administrative segregation. She listed no reason for the permanent designation.

After the permanent designation, Johnson’s classification was not reviewed again


                                         4
              Case: 18-11322    Date Filed: 12/20/2018    Page: 5 of 16


before trial in December 2013, nearly three years later. Johnson never filed a

complaint regarding his confinement in administrative segregation.

      As a detainee in administrative segregation, Johnson did not receive the same

privileges as detainees in the general population. He was confined to a cell where

he could communicate with other inmates only through the vent. He could exit his

cell only to shower and occasionally attend 30-minute yard calls. While on yard

calls, he was permitted to be outside in the jail yard, but he could not interact with

other inmates.

                                         II.

      Johnson filed this 42 U.S.C. § 1983 federal civil-rights action in November

2015. He brought claims against various defendants arising out of his 1984 arrest

and prosecution, his prosecution following the Georgia Supreme Court’s vacatur of

his 1984 conviction, and his lengthy pretrial confinement in administrative

segregation at the jail.

      Two claims against Hays are relevant to this appeal. First, Johnson brought a

substantive-due-process claim, complaining that his confinement in administrative

segregation lacked a legitimate governmental purpose. Second, Johnson brought a

procedural-due-process claim, alleging that the jail had confined him to

administrative segregation without notice and a meaningful opportunity to challenge

the classification.


                                          5
             Case: 18-11322     Date Filed: 12/20/2018   Page: 6 of 16


      The district court denied summary judgment to Hays on the first claim but

granted it on the second claim. As to the procedural-due-process claim, the court

found that it failed for multiple reasons: Hays did not initially place Johnson in

administrative segregation; Johnson never requested a hearing after his initial

placement; and no clearly established law would have put Hays on notice that

placing Johnson in administrative segregation without a hearing would have denied

him due process.

      As to the substantive-due-process claim, the district court found that summary

judgment was not appropriate because a genuine issue of material fact existed as to

whether Johnson was permanently placed in administrative segregation as

punishment for the charged crimes. The court explained that Johnson was a pretrial

detainee while awaiting trial, so his claim—despite being presented under the Eighth

Amendment—was analyzed under the Due Process Clause of the Fourteenth

Amendment, which prohibits pretrial punishment and the imposition of conditions

not reasonably related to a legitimate governmental purpose. The court found a

factual dispute regarding Hays’s “stated reason for permanently keeping [Johnson]

in administrative segregation”—that H-pod was being reassigned and he requested

to remain there—because Johnson denied making any such request, and prison

records simply listed Johnson’s charges as the reason for his confinement in

administrative segregation. Viewing this evidence in Johnson’s favor, the district


                                         6
             Case: 18-11322     Date Filed: 12/20/2018   Page: 7 of 16


court reasoned that a reasonable jury could infer that Hays had no legitimate

government purpose for keeping Johnson in pretrial administrative segregation and

that the more restrictive conditions were, instead, imposed as punishment.

      The district court further found that the law was clearly established enough to

defeat Hays’s defense of qualified immunity. Specifically, the court concluded that

the totality of Johnson’s confinement conditions—indefinite and lengthy pretrial

confinement in the restrictive conditions of administrative segregation for the

purpose of punishment—violated Johnson’s clearly-established rights.

      Hays appeals the denial of qualified immunity on the substantive-due-process

claim. She also argues that Johnson’s claim is time-barred. Johnson cross-appeals

the grant of qualified immunity to Hays on the procedural-due-process claim.

                                        III.

      We first consider our jurisdiction.        We have interlocutory appellate

jurisdiction to review an order denying qualified immunity, at least to the extent it

turns on an issue of law. Cottrell v. Caldwell, 

, 1484 (11th Cir. 1996).

Such orders are ordinarily immediately appealable because the “immunity issue is

both important and completely separate from the merits of the action, and . . . could

not be effectively reviewed on appeal from a final judgment because by that time the

immunity from standing trial will have been irretrievably lost.” Plumhoff v. Rickard,

, 772 (2014).


                                         7
              Case: 18-11322    Date Filed: 12/20/2018    Page: 8 of 16


      In contrast, we lack “interlocutory jurisdiction to review the grant of summary

judgment to a defendant on qualified immunity grounds.” 

(emphasis in original). Nevertheless, “[a]n appeal from the denial of qualified

immunity may implicate this Court’s discretionary pendent appellate jurisdiction to

review otherwise non-appealable matters.” Smith v. LePage, 

, 1292

(11th Cir. 2016). We may exercise pendent appellate jurisdiction “if the non-

appealable matters are ‘inextricably intertwined with an appealable decision or if

review of the former decision is necessary to ensure meaningful review of the latter.”

omitted). “Matters may be sufficiently intertwined where they

implicate the same facts and the same law.” 

and alteration

omitted). But “[w]e are wary of attempts to ‘piggy-back’ cross-appeals on an appeal

of the denial of qualified immunity.” Leslie v. Hancock Cty. Bd. of Educ., 

, 1344–45 (11th Cir. 2013).

      Here, there is no dispute that we have jurisdiction over Hays’s appeal of the

denial of qualified immunity because she raises legal issues about whether her

conduct violated the Fourteenth Amendment and whether the law was clearly

established. 

. But at this time, we will not review her

argument that Johnson’s claim is time-barred because the court’s non-final

limitations decision is not intertwined with or necessary for review of the qualified-

immunity issue. See 

. Accordingly, we dismiss that portion


                                          8
                Case: 18-11322   Date Filed: 12/20/2018    Page: 9 of 16


of Hays’s appeal without prejudice to appealing it as part of any appeal from a final

judgment.

         As for Johnson’s cross-appeal, we decline to exercise pendent appellate

jurisdiction because Johnson’s procedural-due-process claim is not sufficiently

interwoven with the qualified-immunity issue to necessitate immediate review.

Johnson’s substantive- and procedural-due-process claims may share the same basic

factual predicate—Johnson’s pretrial confinement in administrative segregation—

but the legal issues to be resolved are distinct. The court’s decision denying qualified

immunity turns on the lack of a legitimate government objective for keeping Johnson

in administrative segregation. The procedural-due-process claim, in contrast, turns

on what procedures, if any, the jail was required to afford Hays with respect to that

confinement. There is, of course, some overlapping evidence, but it is not necessary

that we review the procedural-due-process claim in order to afford meaningful

review of the substantive-due-process claim. Accordingly, we decline to exercise

pendent appellate jurisdiction over Johnson’s cross-appeal.

         In sum, the sole issue before us at this time is whether the district court

properly denied qualified immunity to Hays on Johnson’s substantive-due-process

claim.

                                          IV.




                                           9
             Case: 18-11322     Date Filed: 12/20/2018    Page: 10 of 16


      We review de novo the denial of qualified immunity at summary judgment.

Moore v. Pederson, 

, 1041 (11th Cir. 2015). Summary judgment is

appropriate when “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing

whether summary judgment is warranted, we, like the district court, must consider

the record and draw all reasonable inferences in favor of the non-moving party.

.

      Qualified immunity protects public officials from suit in their individual

capacities for reasonable, discretionary actions performed in the course of their

duties. Carter v. Butts, 

, 1318 (11th Cir. 2016). But qualified

immunity offers no protection if the plaintiff can show that the defendant, even

though engaged in a discretionary job duty, violated a constitutional right that was

clearly established at the time of the misconduct. 

Hays argues that the

district court erred in finding both a violation of a constitutional right and that the

right was clearly established. We address each issue separately.



                                          A.

      We first consider the district court’s conclusion that a reasonable jury could

find a violation of Johnson’s rights under the Fourteenth Amendment. We analyze

the conditions under which a pretrial detainee is held under the Due Process Clause


                                          10
             Case: 18-11322     Date Filed: 12/20/2018    Page: 11 of 16


of the Fourteenth Amendment, rather than the Eighth Amendment. Jacoby v.

Baldwin Cty., 

, 1344 (11th Cir. 2016). “Due process requires that a

pretrial detainee not be punished prior to a lawful conviction.” Magluta v. Samples,

, 1273 (11th Cir. 2004); see Block v. Rutherford, 

, 583

(1984); Bell v. Wolfish, 

, 535 (1979).

      In evaluating the constitutionality of conditions of pretrial detention, we “must

decide whether the disability is imposed for the purpose of punishment or whether

it is but an incident of some other legitimate governmental purpose.” 

; see 

(stating that we must ask whether any

“legitimate goal” was served by the prison conditions and whether the conditions are

“reasonably related” to that goal). “[T]he 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.” 

. But “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.”

.

      Hays presents two arguments in support of her view that the district court

erred in finding a constitutional violation. First, she contends that the court erred in

finding that she was required to perform a periodic review of Johnson’s


                                          11
               Case: 18-11322      Date Filed: 12/20/2018       Page: 12 of 16


administrative-segregation classification. She asserts that no periodic review is

necessary when an inmate’s administrative confinement is unconnected with the

disciplinary process. Second, she maintains that the court erred in finding that

Johnson had a liberty interest in freedom from administrative segregation, stating

that Johnson cannot meet the standard established by the Supreme Court in Sandin

v. Conner, 

(1995).

       These arguments, however, fail to address the stated ground for the district

court’s ruling. In finding a constitutional violation, the court did not cite Hays’s

failure to perform a “periodic review,” which is a procedural protection sometimes

afforded to those confined in administrative segregation.1 

n.7 (stating that inmates may be entitled to “some sort of periodic review” of

confinement to administrative segregation). Nor did the court find that Johnson met

Sandin’s standard, which does not, in any event, apply to pretrial detainees like

Johnson. See 

–49 (“A pretrial detainee need not meet the

Sandin standard to establish his right to a due process hearing before being placed

in disciplinary segregation.”).

       Instead, the district court concluded that Johnson had established a

substantive-due-process violation under Wolfish by showing that the more restrictive



       1
         True, the district court discussed the lack of periodic review in analyzing whether the
right was clearly established, but that is a separate inquiry.
                                              12
             Case: 18-11322     Date Filed: 12/20/2018   Page: 13 of 16


conditions of administrative segregation were not reasonably related to a legitimate

goal. See 

(“[I]f 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.”). That

conclusion is not undermined by Sandin, see 

(“Sandin

leaves intact [Wolfish]’s holding that a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of law.” (quotation marks

omitted)), nor does it depend on the procedures the Jail employed in making

confinement decisions.

      Accordingly, Hays’s arguments relating to Sandin and periodic review do

nothing to convince us that the stated ground for the district court’s decision was

incorrect. And aside from these two arguments, Hays’s initial brief on appeal does

not meaningfully challenge the basis for the district court’s holding. See Sapuppo v.

Allstate Floridian Ins. Co., 

, 681 (11th Cir. 2014) (stating that an

appellant abandons an issue when she fails “to challenge properly on appeal one of

the grounds on which the district court based its judgment”). Her passing references

to the “nonpunitive” nature of Johnson’s confinement, without offering supporting

arguments and relevant authority to explain why the court erred, are insufficient to

properly raise the issue on appeal. 

(“We have long held that an appellant

abandons a claim when he either makes only passing references to it or raises it in a


                                         13
             Case: 18-11322     Date Filed: 12/20/2018    Page: 14 of 16


perfunctory manner without supporting arguments and authority.”). While she raises

pertinent arguments in her reply brief, these arguments come too late. See 

83 (declining to address arguments raised for the first time in a reply brief).

Therefore, accepting the version of events in the light most favorable to the plaintiff,

we affirm the district court’s conclusion that Johnson established a constitutional

violation.

                                          B.

      We next consider Hays’s argument that the district court “erred in finding that

the law was clearly established that an officer is required to perform periodic reviews

of the designation of a pre-trial detainee who is in administrative segregation due to

overcrowding.” She contends that the law was not clearly established in 2011 that

“an inmate should not be placed in administrative segregation due to overcrowding

and reassignment of a cell,” or that periodic reviews were necessary when a

defendant could have, but did not, request reassignment.

      Again, however, Hays’s argument glosses over the district court’s

determination that Johnson established a genuine issue of material fact as to whether

his pretrial confinement in administrative segregation was for punitive reasons.

While Hays asserts that Johnson’s confinement was due to “overcrowding,” that

reason explains only the initial restructuring of H-pod, not Johnson’s subsequent

placement in the newly-restructured H-pod, let alone the decision to keep him in


                                          14
             Case: 18-11322     Date Filed: 12/20/2018    Page: 15 of 16


administrative segregation on a permanent basis more than a year later. Plus, as the

district court noted, the stated reason for the initial placement decision was that

Johnson requested it, but he denied ever doing so.

      Moreover, we conclude that it was clearly established that subjecting a pretrial

detainee to more restrictive conditions of confinement solely for the purpose of

punishment violated clearly established law. In McMillian v. Johnson, for example,

we held that “it was clearly established that transferring a pretrial detainee to death

row for the purpose of punishment violates due process.” 

, 1565–66

(11th Cir. 1996). In finding that the law was clearly established, we did not focus

on the particular conditions of death-row confinement. See 

explained

that Wolfish prohibited “any pretrial punishment, defined to include conditions

imposed with an intent to punish.” 

(emphasis in original). That is

because “intent or motivation is an essential element of the underlying constitutional

violation.” 

Because we found that a reasonable jury could infer an

“intent to punish” on the part of the defendants in McMillian, we said that “there

[was] no question that their alleged conduct violated clearly established law.” 

reasons explained earlier—namely, that Hays forfeited this issue on

appeal—we do not revisit the district court’s determination that a reasonable jury

could infer that Hays intended to punish Johnson by keeping him in the more

restrictive conditions of administrative segregation. And we conclude that if a jury


                                          15
             Case: 18-11322   Date Filed: 12/20/2018   Page: 16 of 16


found such an intent to punish, there is likewise “no question” that Hays violated

clearly established law.

                                        V.

      In summary, we affirm the denial of qualified immunity to Hays on Johnson’s

substantive due process claim. We dismiss her appeal of the denial of her statute-

of-limitations defense, and we dismiss Johnson’s cross-appeal.

      AFFIRMED IN PART; DISMISSED IN PART.




                                        16