Case: 22-10382 Document: 00516789005 Page: 1 Date Filed: 06/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 15, 2023
No. 22-10382
Lyle W. Cayce
____________
Clerk
Lonnie Kade Welsh,
Plaintiff—Appellant,
versus
Lubbock County; Kelly Rowe, Sheriff; C. Scott, Chief Jail
Administrator; FNU Payne, Sergeant; K. Young, Sergeant; FNU
McDaniel, Sergeant; FNU LNU-269, Lubbock County Jail OfficeRadio Number 8281; Ron Jenkins, Captain,
Defendants—Appellees,
consolidated with
_____________
No. 22-11049
_____________
Lonnie Kade Welsh,
Plaintiff—Appellant,
versus
Lubbock County; Kelly Rowe, Sheriff; C. Scott, Chief Jail
Administrator; K. Young, Sergeant,
Defendants—Appellees.
Case: 22-10382 Document: 00516789005 Page: 2 Date Filed: 06/15/2023
______________________________
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CV-255
______________________________
Before Elrod, Ho, and Wilson, Circuit Judges.
Per Curiam:
Plaintiff Lonnie Welsh, a convicted sexually violent predator, was held
in the Lubbock County Detention Center as a pre-trial detainee for a period
of approximately one month from December 2017 to January 2018. Soon
after his arrival, he was placed in administrative segregation away from the
facility’s general population, where he was held for most of the remainder of
his time there. He subsequently brought suit under 42 U.S.C. § 1983 against
Lubbock County and a number of law enforcement officials, asserting a series
of claims regarding his alleged mistreatment there.
The district court entered an order dismissing the claims against the
county and all but one of the officials, which he now appeals in the first of the
consolidated cases. Plaintiff challenges the process by which he was placed
and remained in administrative segregation, a claim the district court rejected
because “absent extraordinary circumstances, administrative segregation as
such, being an incident to the ordinary life of a prisoner, will never be a
ground for a constitutional claim” because it “simply does not constitute a
deprivation of a constitutionally cognizable liberty interest.” Pichardo v.
Kinker, 73 F.3d 612, 612–13 (5th Cir. 1996). See also Cardenas v. Young,
655
F. App’x 183, 186 (5th Cir. 2016) (applying this conclusion to pre-trial
detention); Bonner v. Alford,
594 F. App’x 266, 267 (5th Cir. 2015) (same);
Rhine v. City of Mansfield,
499 F. App’x 334, 335 (5th Cir. 2012) (same);
Amaya v. Richardson,
289 F. App’x 792, 793 (5th Cir. 2008) (same); Gibbs v.
Grimmette,
254 F.3d 545, 548 n.1 (5th Cir. 2001) (same). He also challenges
a slew of aspects of his treatment in custody—such as his clothing, food,
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sanitation, recreation, and entertainment—that the district court rejected for
failure to amount to a constitutional violation. See Bell v. Wolfish, 441 U.S.
520, 539 & n.21 (1979) (allowing “condition[s] or restriction[s] of pretrial
detention” that are “reasonably related to a legitimate governmental
objective” or are “‘de minimis’” in nature). Additionally, Plaintiff raises
policy claims against Lubbock County for deliberate indifference and failure
to train and supervise, which the district court found lacked an underlying
constitutional violation necessary to proceed. See Hicks-Fields v. Harris
Cnty.,
860 F.3d 803, 808 (5th Cir. 2017) (explaining that municipal liability
requires an underlying constitutional violation).
After the district court subsequently dismissed the remaining named
official, Plaintiff moved to reconsider that dismissal and the dismissal of
several of his other claims. The district court rejected both motions for lack
of new evidence, which Plaintiff now appeals in the second of the
consolidated cases.
The Court has carefully considered these appeals in light of the briefs
and pertinent portions of the record. Having found no reversible error, we
affirm.
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Jennifer Walker Elrod, Circuit Judge, concurring:
While I agree that the district court did not reversibly err here, I write
separately to address the appropriate standard for review of claims brought
by pre-trial detainees.
Welsh was retained in administrative segregation from December 5,
2017, to January 8, 2018, while he awaited his criminal trial.1 Prison records
establish that paper reviews of Welsh’s placement in administrative
segregation were conducted on December 17, 2017, and January 2, 2018, but
Welsh asserts that he was improperly denied: notice of the reviews; a hearing;
the opportunity to challenge the use of his status as a sexually violent
predator as grounds for placing and keeping him administratively segregated;
and written factual determinations for continuing to keep him in
administrative segregation. This rendered him “unable to appeal the result
under the procedures described in Texas Administrative Code 271.4.”
In district court, Welsh relied on Hewitt v. Helms, 459 U.S. 460 (1983),
in which the Supreme Court held that state statutes defining procedures for
confining an inmate to administrative segregation can give an inmate a
protected liberty interest.
Id. at 476. The district court agreed that Welsh
was potentially denied procedural safeguards, but it nevertheless dismissed
_____________________
1
Welsh was held in the Lamb County Jail awaiting trial from November 28, 2017,
to June 20, 2018, except when he was transferred to the Lubbock County Jail from
December 2017 to January 2018. In a separate case, Welsh v. Lamb County, et al., No. 22-
10124, 2023 WL 3918995 (5th Cir. June 9, 2023), Welsh brought claims against officials at
the Lamb County Jail. We reversed the district court’s dismissal of Welsh’s substantive
due-process claim arising out of his allegation that he was forced for several days to drink
from a toilet, because this was not a de minimis imposition such that his constitutional right
to be free from punishment as a pre-trial detainee was not implicated.
Id. at *3 (citing Bell
v. Wolfish,
441 U.S. 520, 535–40 (1979)). We remanded with instructions that Welsh’s
factual allegations be considered under the law governing pre-trial detainees’ due-process
rights.
Id.
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Welsh’s claim because of this court’s holding that “absent extraordinary
circumstances, administrative segregation as such, being an incident to the
ordinary life of a prisoner, will never be a ground for a constitutional claim.”
Pichardo v. Kinker, 73 F.3d 612, 612 (5th Cir. 1996). Pichardo relied on the
Supreme Court’s holding in Sandin v. Conner,
515 U.S. 472 (1995).
However, both Pichardo and Sandin dealt with convicted prisoners, not pre-trial detainees like Welsh.
Every circuit to consider the issue of the proper standard for review of
pre-trial detainee claims has held that Sandin does not apply to pre-trial
detainee claims. See Dilworth v. Adams, 841 F.3d 246, 252 (4th Cir. 2016);
Jacoby v. Baldwin County,
835 F.3d 1338, 1347–50 (11th Cir. 2016); Hanks v.
Prachar,
457 F.3d 774, 776 (8th Cir. 2006); Surprenant v. Rivas,
424 F.3d 5,
17 (1st Cir. 2005); Peoples v. CCA Det. Ctrs.,
422 F.3d 1090, 1106 & n.12 (10th
Cir. 2005), vacated in part on other grounds by
449 F.3d 1097 (10th Cir. 2006)
(en banc); Benjamin v. Fraser,
264 F.3d 175, 188–89 (2d Cir. 2001); Rapier v.
Harris,
172 F.3d 999, 1004–05 (7th Cir. 1999); Mitchell v. Dupnik,
75 F.3d
517, 524 (9th Cir. 1996); see also Fuentes v. Wagner,
206 F.3d 335, 342 n.9 (3d
Cir. 2000) (holding Sandin inapplicable to detainee convicted but not yet
sentenced), abrogated in part on other grounds by Kingsley v. Hendrickson,
576
U.S. 389 (2015).
Although circuits have uniformly held that pre-trial detainees’ claims
are not governed by Sandin, they have reached different conclusions as to
whether detainees may continue to rely on Hewitt to support their due
process claims. Compare Thorpe v. Clarke, 37 F.4th 926, 944–46 (4th Cir.
2022) (discussing the baseline procedural requirements for retaining an
inmate in administrative segregation under Hewitt), Williamson v. Stirling,
912 F.3d 154, 174–77 (4th Cir. 2018) (relying on Hewitt to determine whether
a pre-trial detainee is entitled to procedural due process before and after
being placed in administrative segregation), and Williams v. Hobbs,
662 F.3d
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994, 1006–09 (8th Cir. 2011) (holding post-Sandin that prisoners who were
confined in non-disciplinary administrative segregation were entitled to
meaningful periodic review under Hewitt), with Rapier v. Harris, 172 F.3d
999, 1004–05 (7th Cir. 1999) (“We are aware that Sandin distinguishes
between convicted prisoners and pretrial confinees, but we do not believe
that the distinction made by the Court, read in context, justifies the
continued vitality of the Hewitt approach in dealing with pretrial
confinees.”).
In several unpublished cases, we have applied Sandin and cases based
on Sandin to pre-trial detainees, but we have not explicitly addressed whether
Sandin’s holding applies to pre-trial detainees. See, e.g., Aucoin v. Terrebonne
Par. Sheriff’s Off., No. 21-30322, 2022 WL 16657429, at *2 (5th Cir. Nov. 3,
2022) (concluding that a pre-trial detainee’s claims about his disciplinary
proceeding and subsequent lockdown sentence were properly dismissed
because he did not allege any atypical or significant hardship); Cardenas v.
Young,
655 F. App’x 183, 186 (5th Cir. 2016) (only applying Sandin during
time when plaintiff was convicted prisoner, not pre-trial detainee); Bonner v.
Alford,
594 F. App’x 266, 267 (5th Cir. 2015) (applying Pichardo to pre-trial
detainee); Rhine v. City of Mansfield,
499 F. App’x 334, 335 (5th Cir. 2012)
(applying Pichardo to pre-trial detainee); Amaya v. Richardson,
289 F. App’x
792, 793 (5th Cir. 2008) (applying Pichardo to pre-trial detainee).
Sandin does not apply to pre-trial detainees. For a convicted prisoner,
administrative segregation falls under the “expected perimeters of the
sentence imposed by a court of law.” Sandin, 515 U.S. at 485. But a pre-trial
detainee is not subject to such an expectation of punishment.
Id. at 484 (“[A]
detainee ‘may not be punished prior to an adjudication of guilt in accordance
with due process of law.’” (quoting Bell v. Wolfish,
441 U.S. 520, 535
(1979))); Welsh v. Lamb County,
2023 WL 3918995, at *3 (remanding Welsh’s
claim against Lamb County Jail). Unlike a convicted prisoner, a pre-trial
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detainee has a liberty interest in freedom from increased restraint, even if that
restraint does not exceed the Sandin requirements. Hewitt continues to
provide the correct framework for determining the procedural protections to
which a pre-trial detainee is entitled to ensure that solitary confinement is not
imposed as punishment.
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