William H. Melendez v. Secretary, Florida Department of Corrections, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13455
Non-Argument Calendar
____________________
WILLIAM H. MELENDEZ,
Plaintiff-Appellee,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
JOHN PALMER,
Assistant Regional Director,
STATE OF FLORIDA DEPARTMENT OF CORRECTIONS,
an agency of the State of Florida,
DONALD DAVIS,
JEFFREY R. MCCLELLAN,
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 1 of 63

-- 1 of 63 --

2 Opinion of the Court 21-13455
Defendants-Appellants,
WARDEN, FLORIDA STATE PRISON, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-01023-BJD-JBT
____________________
____________________
No. 22-10306
Non-Argument Calendar
____________________
WILLIAM HOWER MELENDEZ,
Plaintiff-Appellee,
versus
STATE OF FLORIDA DEPARTMENT OF CORRECTIONS,
an agency of the State of Florida,
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 2 of 63

-- 2 of 63 --

21-13455 Opinion of the Court 3
Defendant-Appellant,
WARDEN, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-01023-BJD-JBT
____________________
Before J ORDAN, NEWSOM , and L AGOA , Circuit Judges.
PER CURIAM:
These consolidated cases concern the appeals of two dis-
trict court orders granting William Melendez’s first and second
motions for preliminary injunction against the Florida Depart-
ment of Corrections (“FDC”), Mark Inch, in his official capacity as
the Secretary of FDC, and various FDC officers and officials (col-
lectively, “Defendants”). For the reasons explained below, we
conclude that Defendants’ appeal as to the first preliminary in-
junction is moot and that no exception to mootness applies. We
therefore dismiss the appeal as to case number 21-13455. As to
the second preliminary injunction, we conclude that the district
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 3 of 63

-- 3 of 63 --

4 Opinion of the Court 21-13455
court did not abuse its discretion in granting Melendez’s motion.
We therefore affirm the appeal as to case number 22-10306.
I. BACKGROUND
Melendez, a sixty-two-year-old inmate in Florida state pris-
on, filed a second amended complaint for damages and injunctive
relief against Defendants and other nonparty state officials. In his
complaint, Melendez brought claims under 42 U.S.C. § 1983, al-
leging violations under the First, Eighth, and Fourteenth
Amendments, as well as violations of the Americans with Disabili-
ties Act and the Rehabilitation Act of 1973.
Of relevance to this appeal, Melendez alleged that Defend-
ants had held him in solitary confinement continuously, except
for a four-month period, since he attempted suicide on August 24,
2016. During his term of solitary confinement, Melendez alleged
that he was classified as “Close Management” (“CM”), which is
used by FDC to isolate inmates that FDC has determined cannot
remain in the general prison population without abusing the
rights and privileges of others. He alleged that he had remained
in the most restrictive level of CM, “CM I,” for most of his con-
finement. He additionally alleged that Defendants, through their
isolation-related practices and policies, had “subjected [him] to a
substantial risk of serious harm and deprived him of the minimal
civilized measure of life’s necessities and basic human dignity by
exposing him to excessive periods of isolation in deplorable condi-
tions.” He further alleged that Defendants were aware of these
deprivations and remained deliberately indifferent to them and
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 4 of 63

-- 4 of 63 --

21-13455 Opinion of the Court 5
had not acted to reduce or eliminate the risk posed by them, all in
violation of the Eighth Amendment. Defendants filed an answer
generally denying Melendez’s allegations.
A. First Preliminary Injunction (Case No. 21-13455)
On September 27, 2021, Melendez filed his first motion for
preliminary injunction, alleging that he was “in existential crisis,
having recently made multiple attempts to kill himself,” and
needed “immediate inpatient psychiatric treatment.” He claimed
that a mental health expert had evaluated him and determined
that he was “at an extremely high risk of suicide” and required
“prompt transfer to an inpatient treatment unit.” Melendez ar-
gued that he satisfied the four-part test for issuing a preliminary
injunction because: (1) he was likely to succeed on the merits of
his claims; (2) he would suffer irreparable harm if the injunction
was not granted, as he was at extremely high risk of suicide and
other serious injury due to his ongoing isolation and subsequently
worsening mental illness; (3) the balance of harms and the public
interest favored granting the injunction; and (4) the injunction
met the Prison Litigation Reform Act’s (“PLRA”) “needs-
narrowness-intrusiveness requirements.” In support of his mo-
tion, Melendez submitted: (1) reports authored by Dr. Terry
Kupers, a board-certified psychiatrist who had twice evaluated
Melendez, as recently as September 15, 2021, and diagnosed him
with “major depressive disorder with psychotic features (includ-
ing paranoia) and very high suicide risk”; (2) Melendez’s declara-
tions; (3) FDC records documenting Melendez’s self-harm; (4) dis-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 5 of 63

-- 5 of 63 --

6 Opinion of the Court 21-13455
ciplinary and classification records; and (5) a declaration from Dan
Pacholke, a veteran correctional administrator, who opined that
CM was not appropriate housing for Melendez. Melendez re-
quested an evidentiary hearing.
The district court ordered Defendants to respond to the
first preliminary injunction motion and set a hearing for October
6, 2021. The district court denied Melendez’s request for an evi-
dentiary hearing because the motion did not appear to involve
“bitterly contested” facts or require it to make credibility deter-
minations.
Defendants responded, arguing that Melendez did not have
a “serious mental illness” but suffered from “a generalized anxiety
disorder and an antisocial personality disorder.” They argued that
Melendez was not actively suicidal, that he inflicted self-harm for
secondary gain, that he was being offered mental health services
consistent with his diagnoses, and that a higher level of care was
not warranted. Defendants further argued that Melendez failed
to satisfy the elements for an injunction, contending that the evi-
dence showed he had repeatedly demonstrated an inability to live
in the general population (“GP”) of the prison without abusing
the rights and privileges of others. They submitted the following
evidence in support of their response: (1) an affidavit from Assis-
tant Warden Jeffrey McClellan that summarized Melendez’s dis-
ciplinary history and CM classification (with attached records); (2)
records listing FDC’s reviews of Melendez’s placement in solitary
confinement; (3) a request for judicial notice of an expert report
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 6 of 63

-- 6 of 63 --

21-13455 Opinion of the Court 7
from another case; and (4) a report from FDC mental health di-
rector Dr. George Emanoilidis. Melendez filed a reply to Defend-
ants’ response.
Following the hearing on the first preliminary injunction
motion, the district court made the following findings: (1) Melen-
dez was likely to succeed on his Eighth Amendment claim as to
his conditions of confinement based on the record evidence; (2)
Melendez showed irreparable harm, specifically death; (3) Melen-
dez’s transfer to a psychiatric hospital within FDC was a
“miniscule, if nonexistent” harm to Defendants; and (4) the public
interest favored adequate treatment of mentally ill people.” The
district court entered an endorsed order the same day granting
the first motion for preliminary injunction. The district court di-
rected Defendants to immediately transfer Melendez from CM to
“a suitable mental health unit for inpatient psychiatric treatment
where [he] shall remain until a qualified licensed mental health
provider at the transferee institution determines [he] is medically
and psychologically capable of returning to [GP]” and to “video
record all of [his] interactions with staff on account of [his] physi-
cal or mental health or problematic behavior and transportation
until [he] is transferred to an inpatient psychiatric facility and up-
on his return therefrom.”
Then, on October 15, 2021, the district court issued a writ-
ten order explaining its findings and reasoning for granting the
injunction. First, the district court found that Melendez had
demonstrated a likelihood of success as to his Eighth Amendment
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 7 of 63

-- 7 of 63 --

8 Opinion of the Court 21-13455
claim against Defendants. The district court recognized that soli-
tary confinement, in and of itself, was not prohibited by the
Eighth Amendment, but that the length of such confinement
could not be ignored, noting several recent concurring and dis-
senting opinions from the Supreme Court that questioned the
constitutionality of lengthy terms of solitary confinement. The
district court noted that Melendez did not object to solitary con-
finement in a general sense but rather complained that his ex-
tended commitment deprived him of the most basic constitution-
al guarantees of humane treatment. The court recognized that
the evidence showed Melendez spent most of the previous five
years in CM. Specifically, Melendez had CM I status from Sep-
tember 13, 2016, through June 17, 2019, and again from October
19, 2020, through October 6, 2021, resulting from disciplinary
charges against Melendez that were overturned. The court noted
that, after the first CM I stint, he was downgraded to CM II then
CM III, successfully completing the CM step-down program on
March 23, 2020. The court also explained that, pursuant to the
Florida Administrative Code (“FAC”), the Institutional Classifica-
tion Team (“ICT”) was required to conduct regular reviews of an
inmate’s CM status—once a week for the first sixty days, and then
once every thirty days thereafter. And, after an inmate is on CM
status for six months, the district court explained that the classifi-
cation officer was required to interview the inmate and prepare a
formal assessment and evaluation.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 8 of 63

-- 8 of 63 --

21-13455 Opinion of the Court 9
The district court credited Pacholke’s opinions as to soli-
tary confinement, i.e., that it should be used sparingly and for the
shortest time possible, aligned with the stated purpose of regular
reviews for inmates’ CM statuses and with Eighth Amendment
jurisprudence that harsh conditions may become cruel and unu-
sual if they persist for long periods of time without penological
justification. The district court also found the opinions of Dr.
Kupers— who had interviewed Melendez twice within the last six
months and had reviewed his prison medical records—
convincing, credible, and entitled to significant weight. Specifical-
ly, Dr. Kupers opined that solitary confinement exacerbated
Melendez’s mental illness—diagnosed as major depressive disor-
der with psychotic features, including paranoia, and very high sui-
cide risk—and created daily situations where he was in conflict
with custody staff and that Melendez needed to be transferred to
a unit where more intensive mental health treatment was availa-
ble. Dr. Kupers explained that Melendez thought about suicide
all the time and had attempted suicide at least seven times since
2013, most recently in August 2021, and that despite these inci-
dents, FDC did not recognize that he was at risk of self-injury.
As to Dr. Emanoilidis’s opinion that Melendez was not cur-
rently in crisis and that his mental health needs were being met,
the district court noted that Dr. Emanoilidis had not personally
evaluated Melendez nor spoken to him for more than ten
minutes. Additionally, Dr. Emanoilidis’s opinions were based on
his limited interactions with Melendez, the results of Melendez’s
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 9 of 63

-- 9 of 63 --

10 Opinion of the Court 21-13455
last full psychiatric evaluation, and records prepared by FDC cli-
nicians who, the district court found, had spent little time examin-
ing Melendez and had underreported his “serious psychopatholo-
gy.” By contrast, Dr. Kupers had personally evaluated Melendez
for nearly five hours.
Furthermore, the court explained that it was troubled by
the fact that FDC officials ignored Melendez’s “suicidal gestures”
and returned him to solitary confinement after such incidents and
that mental health professionals in the prison neither intervened
when Melendez unilaterally refused mental health treatment nor
recorded the extent of Melendez’s psychosis. In particular, the
court noted that, as to Melendez’s August 2021 “suicidal gesture”
in which he inserted two nails into his arm, a Multidisciplinary
Service Team (“MDST”) neither acknowledged the incident in its
treatment progress meeting and report conducted within days of
the incident, nor did the team have a psychiatrist evaluate Melen-
dez. The district court also noted that Melendez averred he told
MDST at the meeting that he was hearing voices but that he was
returned to his solitary confinement cell instead of immediately
being taken to a medical unit or the hospital. And, the court ex-
plained, when Melendez was eventually taken to the hospital, the
doctor who evaluated him recognized his serious need for psychi-
atric intervention, bolstering Dr. Kupers’s opinion.
The district court further stated that Melendez not only
had been consigned to CM I status for an inordinately long time
period, but that time period, in combination with the conditions
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 10 of 63

-- 10 of 63 --

21-13455 Opinion of the Court 11
of CM I, suggested he was deprived of the minimal civilized
measure of life’s necessities, including human interaction, exer-
cise, and regular opportunities to cleanse himself. The court not-
ed Melendez’s statements that, despite the rules governing CM
inmates, he was not permitted to exercise outdoors since July 26,
2020, and, as of September 24, 2021, he had not showered in four
weeks, leading to a staph infection in his legs. Melendez also
averred that he laid awake at night afraid that officers would enter
his cell and assault him. The court noted that Defendants had not
offered evidence to rebut those assertions. Thus, the evidence
demonstrated that Melendez’s “lengthy confinement in [CM I]
pose[d] a substantial risk of serious harm to his mental and physi-
cal health.”
The district court also determined that Melendez was likely
to establish that Defendants were deliberately indifferent to the
risk of harm he faced “by the very fact that the risk is obvious,” as
the risks of harm associated with prolonged periods of isolation
are well known, including by corrections officials tasked with
promulgating and enforcing rules for safety and well-being of in-
mates. The court explained that FDC staff was aware of Melen-
dez’s stay in CM I because of their obligation to visit CM units
and because, prior to Melendez’s action, his attorney sent a letter
to the then-warden of the prison detailing Melendez’s mental
health deterioration, his grievances, and the fact that he was, at
the time, on a hunger strike.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 11 of 63

-- 11 of 63 --

12 Opinion of the Court 21-13455
As to the other injunction elements, the district court
found that Melendez demonstrated the threat of irreparable harm
because of his suicidal behavior and depression and because po-
tential death constituted the ultimate irreparable injury. The
court found the risk of harm to Defendants was minor, given that
FDC already maintained facilities equipped to treat mentally ill
prisoners. And the court explained it was in the public interest to
ensure prisoners with mental illness are humanely treated in ac-
cordance with the Constitution. The court further explained that
its relief was “narrowly drawn and extends no further than neces-
sary to address the harm [he] was facing when he filed his emer-
gency motion,” as its directives ensured Melendez’s rights were
not further infringed in addition to safeguarding prison staff inter-
acting with him.
Defendants appealed and moved to stay the first prelimi-
nary injunction in the district court pending their appeal. The dis-
trict court denied Defendants’ stay motion. Defendants filed an
emergency motion to stay the preliminary injunction pending ap-
peal in this Court, which we denied on October 11, 2021. On
January 4, 2022, the first preliminary injunction expired by opera-
tion of law.
See 18 U.S.C. § 3626(a)(2).
B. Second Preliminary Injunction (Case No. 22-10306)
On January 3, 2022, Melendez filed a second motion for a
preliminary injunction. Melendez stated that, following the first
preliminary injunction, Defendants began to comply with the
court’s injunction under threat of sanctions but, within days of
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 12 of 63

-- 12 of 63 --

21-13455 Opinion of the Court 13
transfer, filed a report to the court downplaying his mental illness
and portraying him as a malingerer. According to Melendez, on
November 4, 2021, FDC’s counsel notified his counsel that FDC
had cleared him to return to CM. Then, on November 9, 2021,
Melendez was returned to administrative solitary confinement,
where FDC stated he would stay pending resolution of its inter-
locutory appeal. Melendez asserted that FDC would likely return
him to a CM unit upon the expiration of the first preliminary in-
junction.
Melendez asserted that Defendants had “no intention” of
providing him with adequate mental health treatment and there-
fore sought an order requiring that: (1) Defendants return Melen-
dez to the Transitional Care Unit (“TCU”) for inpatient mental
health care; (2) a court-appointed, independent expert opine as to
his mental health needs; (3) the parties have the opportunity to
review the findings of the court-appointed expert and a reasona-
ble opportunity to challenge any proposed discharge from the
TCU; and (4) Defendants not hold Melendez in solitary confine-
ment conditions, i.e., confinement to his cell for at least 22 hours
per day or any other confinement characterized by minimal to
rare meaningful contact with other individuals and the lack of op-
portunities for congregate recreation, meals, and programming.
Melendez asserted that he satisfied the test for issuing a prelimi-
nary injunction for substantially the same reasons as the first pre-
liminary injunction and noted that the court granted his previous
injunction. Melendez filed several exhibits in support of his mo-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 13 of 63

-- 13 of 63 --

14 Opinion of the Court 21-13455
tion, including a demonstrative exhibit summarizing his special
housing unit records from December 2011 to July 2021, which
were produced by Defendants during expedited discovery.
Melendez also requested an evidentiary hearing.
Defendants again opposed Melendez’s motion, arguing
that he was not likely to succeed on the merits of his Eighth
Amendment claim because he could not demonstrate deliberate
indifference and because his placement in CM was penologically
justified. Specifically, they contended that Melendez was classi-
fied as CM I status because FDC officials determined he could not
be housed in GP. They further argued that his claim should have
been brought as a writ for habeas corpus relief and was not ac-
tionable under § 1983. And they argued that the requested relief
did not satisfy the PLRA.
The district court held a three-day evidentiary hearing on
the second preliminary injunction motion. At the evidentiary
hearing, Melendez presented his own testimony as well as the tes-
timony of Pacholke and Dr. Kupers, both of whom had previous-
ly provided declarations in support of his preliminary injunction
motions. In opposing the injunction motion, Defendants pre-
sented testimony from: (1) Carl Wesley Kirkland, Jr., the deputy
director of institutional operations at FDC; (2) Dr. Ryan Labrec-
que, an assistant professor of criminal justice; (3) Dr. Emanoilidis;
(4) Dr. Johnathan Greenfield, the assistant statewide psychiatric
director for FDC; and (5) Sergeant Eugene Williams.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 14 of 63

-- 14 of 63 --

21-13455 Opinion of the Court 15
At the conclusion of the hearing on January 24, 2022, the
district court found that Melendez was likely to succeed in estab-
lishing that Defendants, through a pattern and practice, had main-
tained Melendez on CM status for a majority of the previous five
years and that such pattern and practice of administration and
maintenance constituted cruel and unusual punishment. The dis-
trict court found there was no evidence establishing that Melen-
dez should currently be placed in CM status. The court noted
that FDC’s clinicians indicated that Melendez had “demonstrated
he has the coping resources to manage [CM] or [GP] environ-
ments” on November 8, 2021. The court further noted Dr.
Greenfield’s testimony that Melendez could care for himself and
follow FDC’s rules. And the court recognized that Melendez’s
security evaluations for September and October 2021 were satis-
factory and above satisfactory. As such, the court ordered De-
fendants to return Melendez to a GP status. The court further
ordered the parties to provide proposed findings of fact and con-
clusions of law regarding any additional preliminary relief. In an
endorsed order issued the same day, the district court directed
Defendants to return Melendez to GP status “as quickly as can be
done safely.” The court explained that if Melendez engaged in
conduct warranting a recommendation for CM status, FDC shall
immediately begin the Institutional Classification Team (“ICT”)
process—i.e., the process for making and reviewing prisoners’
housing status classifications—and record by video and audio any
ICT hearings, and any related mental health examinations, relat-
ing to his housing status.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 15 of 63

-- 15 of 63 --

16 Opinion of the Court 21-13455
Defendants filed their notice of appeal and an emergency
motion to stay in the district court. Subsequently, the district
court issued a written order explaining its findings and reasons for
granting the second preliminary injunction, adopting its reasoning
from the first preliminary injunction, and denying Defendants’
motion to stay. The district court found that Melendez demon-
strated a likelihood of success on the merits of his Eighth
Amendment claim as to his conditions of confinement. The court
explained that Melendez had offered evidence in support of the
allegations in his second amended complaint and second prelimi-
nary injunction motion—i.e., that Defendants had intentionally
deprived Melendez of basic human needs while holding him in
excessive periods of solitary confinement, that Melendez’s mental
and physical health had dramatically declined, and that he was not
allowed outdoor recreation during his entire isolation in CM I and
CM II nor allowed the minimum number of weekly showers, in
violation of the FAC.
Reviewing the evidence, the court noted Pacholke exam-
ined Melendez’s confinement status records and testified that
Melendez “very rarely gets out of his cell and has participated in
little to no recreation and little to no therapeutic programming or
classes.” The court noted Melendez’s testimony that he received
little to no out-of-cell time while in CM status, that he was not
permitted to keep his walker because he would not be out of his
cell enough to justify it, and that his requests for outdoor recrea-
tion were ignored or denied by FDC officers. Additionally, the
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 16 of 63

-- 16 of 63 --

21-13455 Opinion of the Court 17
district court explained that, based on the summary of Melendez’s
special housing records, he was allowed outdoor recreation only
20 times, and 14 of those instances were when he was under the
least restrictive CM III status. The court also noted that Melen-
dez’s records showed that he received the required minimum of
three showers per week only 195 out of 361 weeks and that, at the
evidentiary hearing, Melendez showed the black marks that re-
main on his legs from the staph infection he developed from be-
ing deprived of showers for so long.
The court rejected Defendants’ contention that Melendez
received the privileges to which he is entitled, based on his cur-
rent housing status, as contradictory to Melendez’s evidence, not-
ing that Defendants had failed to offer evidence to dispute Melen-
dez’s evidence and that their witness, Kirkland, acknowledged
that correctional staff were required to document the program-
ming or privileges inmates on CM status receive. Therefore, the
district court, in accordance with its prior ruling in the first pre-
liminary injunction, found that Defendants subjected Melendez to
cruel and unusual conditions of confinement and had subjective
knowledge of the risk he faced.
The district court additionally found that Melendez will
suffer irreparable harm in the absence of the injunctive relief and
that his harm outweighed any harm Defendants may incur in
complying with the injunction. The court noted that the mental
health experts disagreed on whether Melendez was legitimately
suicidal or harmed himself for secondary gain but found there
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 17 of 63

-- 17 of 63 --

18 Opinion of the Court 21-13455
was no dispute that Melendez had engaged in multiple acts of self-
harm, with some requiring emergency treatment. The court ex-
plained that such acts of self-harm could result in his death, even
if there was a dispute as to the rationale behind the acts. And the
court noted that Melendez testified that he thought about self-
harm “a lot” and, within the last month, had come close to cut-
ting himself, although he changed his mind after thinking about
his sister. The district court further found that, given the evi-
dence of a potential past and continuing constitutional violation,
granting Melendez’s motion in part by ordering his transfer to GP
status served the public interest.
As to the PLRA’s requirements, the district court found
that the granted relief “is narrowly tailored, extends no further
than necessary, and is the least intrusive means to correct the vio-
lation.” The court noted that Melendez had sought much broad-
er relief than what was granted: transfer to the TCU and for an
independent expert to weigh in before being released from the
TCU. It noted that both parties’ experts did not believe Melendez
currently required long-term inpatient treatment. The court ex-
plained that the relief was tailored to address the violation, as the
evidence indisputably showed that Melendez had spent a majority
of the last five years in CM I status with little to no out-of-cell
time and that there was no dispute that solitary confinement was
a long-term housing solution for inmates. The court further ex-
plained that the relief was narrowly tailored because Defendants’
own witnesses and the correctional records demonstrated une-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 18 of 63

-- 18 of 63 --

21-13455 Opinion of the Court 19
quivocally that Melendez’s consignment to solitary confinement
was not currently warranted, i.e., no FDC witness could explain
why a CM or administrative confinement status was currently
justified based on his present risk assessment. For example,
Melendez’s recent security evaluations were satisfactory and
above satisfactory, FDC’s own clinicians indicated that Melendez
demonstrated he has the coping resources to manage CM or GP
environments, and Dr. Greenfield testified that Melendez was
able to care for himself and follow the rules.
Further, the court noted that it had not directed FDC to
keep Melendez in GP status regardless of his future behavior, ex-
plaining that its order did not prevent Defendants from managing
their prisons or enforcing rules designed to protect inmates and
staff. For example, if Melendez engaged in future behavior war-
ranting imposition of disciplinary measures, Defendants were en-
titled to impose such measures in accordance with FDC policies.
It further explained that the requirement that ICT hearings being
recorded, along with any mental health evaluations that may be
conducted or used in connection with the ICT process, was also
narrowly tailored and the least intrusive means of developing a
record for the parties and the court, should future violations oc-
cur.
The court stated that it was “not unsympathetic to [FDC’s]
extraordinary responsibility to administer safe prisons under im-
mense pressures,” but “[w]hen a court is confronted with con-
vincing evidence of inhumane conditions, ‘court-ordered correc-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 19 of 63

-- 19 of 63 --

20 Opinion of the Court 21-13455
tion of [those] . . . conditions’ is appropriate,” especially when
prison officials have been informed their practices are infringing
an inmate’s constitutional rights but persist in that conduct. And
the court stated that Defendants failed to show how the injunc-
tion would adversely impact the public safety or operation of the
criminal justice system. Accordingly, the district court granted
Melendez’s motion in part and entered the second preliminary
injunction.
Following their notice of appeal, Defendants again moved
for an emergency stay in this Court pending the resolution of
their appeal. We denied Defendants’ motion but expedited the
case for merits disposition purposes and consolidated the cases.
II. STANDARD OF REVIEW
“We review a district court’s grant of preliminary injunc-
tive relief for abuse of discretion.”
Jones v. Governor of Florida,
950 F.3d 795, 806 (11th Cir. 2020). Our review of an order grant-
ing a preliminary injunction “is extremely narrow in scope.”
Id.
(quoting
Carillon Imps., Ltd. v. Frank Pesce Int’l Grp., Ltd., 112
F.3d 1125, 1126 (11th Cir. 1997)). “[W]e review the district court’s
underlying legal conclusions
de novo and its findings of fact for
clear error.”
Id. “This deferential standard follows from ‘[t]he
expedited nature of preliminary injunction proceedings,’ in which
‘judgments . . . about the viability of a plaintiff’s claims and the
balancing of equities and the public interest . . . are the district
court’s to make.’”
Id. (alterations in original) (quoting
BellSouth
Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC,
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 20 of 63

-- 20 of 63 --

21-13455 Opinion of the Court 21
425 F.3d 964, 968 (11th Cir. 2005)). “For a factual finding to be
clearly erroneous, this court, after reviewing all of the evidence,
must be left with the definite and firm conviction that a mistake
has been committed.”
Bryant v. Rich, 530 F.3d 1368, 1377 (11th
Cir. 2008) (quoting
Dresdner Bank AG v. M/V Olympia Voyager,
465 F.3d 1267, 1275 (11th Cir. 2006));
accord Thomas v. Bryant,
614 F.3d 1288, 1307 (11th Cir. 2010) (“[A] finding is ‘clearly erro-
neous’ when although there is evidence to support it, the review-
ing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” (alteration in
original) (quoting
Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985))).
We review the question of mootness
de novo.
FTC v. On
Point Cap. Partners LLC, 17 F.4th 1066, 1078 (11th Cir. 2021).
III. ANALYSIS
In their consolidated appeals, Defendants contend that the
district court erred in granting Melendez’s motions for prelimi-
nary injunction in its first and second preliminary injunction or-
ders. We address the two injunction orders in turn.
A. First Preliminary Injunction in Case No. 21-13455
In their first appeal, Defendants argue that the district court
erred in granting Melendez’s first motion for preliminary injunc-
tion. In their briefing, Defendants recognize that the district
court’s first preliminary injunction, entered on October 6, 2021,
expired by operation of law on January 4, 2022. But Defendants
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 21 of 63

-- 21 of 63 --

22 Opinion of the Court 21-13455
assert that we should not find its appeal of the first preliminary
injunction moot under the “capable of repetition, yet evading re-
view” exception to mootness because Melendez sought (and ob-
tained) a second preliminary injunction.
See Sierra Club v. Mar-
tin, 110 F.3d 1551, 1554 (11th Cir. 1997).
Congress enacted the PLRA “to expedite prison litigation
and end judicial overreach into the management of prisons.”
Ga.
Advoc. Off. v. Jackson, 4 F.4th 1200, 1205–06 (11th Cir. 2021). In
doing so, Congress established the limited circumstances in which
district courts can issue “prospective relief” in inmates’ civil ac-
tions challenging their prison conditions.
Id. at 1206. Specifically,
18 U.S.C. § 3626(a)(1)(A) provides:
Prospective relief in any civil action with respect to
prison conditions shall extend no further than neces-
sary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not
grant or approve any prospective relief unless the
court finds that such relief is narrowly drawn, ex-
tends no further than necessary to correct the viola-
tion of the Federal right, and is the least intrusive
means necessary to correct the violation of the Fed-
eral right. The court shall give substantial weight to
any adverse impact on public safety or the operation
of a criminal justice system caused by the relief.
Section 3626(a)(1)(A)’s requirements are often referred to as the
“need-narrowness-intrusiveness” requirements.
Ga. Advoc. Off.,
4 F.4th at 1206.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 22 of 63

-- 22 of 63 --

21-13455 Opinion of the Court 23
Section 3626(a)(2) sets forth the requirements for prelimi-
nary injunctive relief.1 The statute “confirms that courts can issue
preliminary injunctions in prison cases ‘to the extent otherwise
authorized by law.’”
Ga. Advoc. Off., 4 F.4th at 1206–07 (quoting
§ 3626(a)(2)). The statute also provides that “preliminary injunc-
tive relief must meet the need-narrowness-intrusiveness require-
ments.”
Id. at 1207. And “it provides that preliminary injunctive
relief shall expire within 90 days unless the court does two things:
(1) makes the need-narrowness-intrusiveness findings for prospec-
tive relief under § 3626(a)(1), and (2) makes the order final.”
Id.
Melendez argues that Defendants’ appeal of the first pre-
liminary injunction is now moot, given that the injunction has
1 Section 3626(a)(2) provides in full:
In any civil action with respect to prison conditions, to the
extent otherwise authorized by law, the court may enter a
temporary restraining order or an order for preliminary in-
junctive relief. Preliminary injunctive relief must be narrowly
drawn, extend no further than necessary to correct the harm
the court finds requires preliminary relief, and be the least in-
trusive means necessary to correct that harm. The court shall
give substantial weight to any adverse impact on public safety
or the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity
set out in paragraph (1)(B) in tailoring any preliminary relief.
Preliminary injunctive relief shall automatically expire on the
date that is 90 days after its entry, unless the court makes the
findings required under subsection (a)(1) for the entry of pro-
spective relief and makes the order final before the expiration
of the 90-day period.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 23 of 63

-- 23 of 63 --

24 Opinion of the Court 21-13455
expired. We agree. “An appeal is moot ‘when, by virtue of an
intervening event, a court of appeals cannot grant any effectual
relief whatever in favor of the appellant.’”
United States v. Sec’y,
Fla. Dep’t of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015) (quoting
Calderon v. Moore, 518 U.S. 149, 150 (1996)). “One such inter-
vening event is the expiration of a preliminary injunction that is
being challenged in an interlocutory appeal.”
Id. at 1228–29.
And, as we have recently explained, “when a preliminary injunc-
tion expires by operation of law under § 3626(a)(2), any appeal
from that injunction is moot.”
Ga. Advoc. Off., 4 F.4th at 1215. It
is undisputed that the first preliminary injunction, which was not
made final by the district court, expired on January 4, 2022.
Therefore, Defendants’ appeal of the first preliminary injunction
is now moot.
While Defendants argue that we should apply the capable
of repetition, yet evading review exception to mootness, we de-
cline to do so. The capable of repetition, yet evading review ex-
ception “applies in ‘exceptional circumstances’ where ‘(1) there is
a reasonable expectation or a demonstrated probability that the
same controversy will recur involving the same complaining par-
ty, and (2) the challenged action is in its duration too short to be
fully litigated prior to its cessation or expiration.”
Ga. Advoc.
Off., 4 F.4th at 1215 (alteration adopted) (quoting
United States v.
Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228–29). “The remote pos-
sibility that an event might recur is not enough to overcome
mootness, and even a likely recurrence is insufficient if there
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 24 of 63

-- 24 of 63 --

21-13455 Opinion of the Court 25
would be ample opportunity for review at that time.”
Al Najjar v.
Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001). And, in the context
of a preliminary injunction under the PLRA, the exception does
not apply “merely because the district court might enter another
preliminary injunction without making additional need-
narrowness-intrusiveness findings and making the order final
within 90 days.”
See Ga. Advoc. Off., 4 F.4th at 1216.
Moreover, the issues that Defendants raise as to the first
preliminary injunction, even if capable of repetition, are not
“evading review.” Indeed, we address below the merits of De-
fendants’ arguments against the second preliminary injunction.
Accordingly, we conclude that Defendants’ appeal of the
district court’s order granting Melendez’s first motion for prelim-
inary injunction is now moot. We therefore dismiss the appeal as
to case number 21-13455.
B. Second Preliminary Injunction in Case No. 22-10306
We now turn to Defendants’ appeal of the second prelimi-
nary injunction. Defendants argue that the district court erred in
granting the second preliminary injunction for several reasons.
First, they contend that the injunction impermissibly grants relief
beyond the purported constitutional violation. Second, they ar-
gue that the injunction does not comply with the PLRA. Third,
they contend that the district court erred in finding Melendez met
his burden under Federal Rule of Civil Procedure 65 to establish
the required elements for granting a preliminary injunction.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 25 of 63

-- 25 of 63 --

26 Opinion of the Court 21-13455
Fourth, they claim that the district court erred in ordering Melen-
dez released from restrictive housing under § 1983. Finally, they
argue that the injunction violates the separation of powers and
federalism. We begin our analysis by determining whether the
second preliminary injunction satisfies all the elements required
for entry of injunctive relief and then turn to Defendants’ other
arguments.
1. Whether Melendez demonstrated all the elements required
for entry of a preliminary injunction
For a district court to grant preliminary injunctive relief,
the plaintiff must demonstrate that: (1) there is a substantial like-
lihood of success on the merits; (2) a substantial threat that the
plaintiff will suffer irreparable harm if the injunction is not grant-
ed; (3) the threatened harm to the plaintiff outweighs the harm an
injunction may cause to the defendants; and (4) the injunction
does not disserve the public interest.
Ga. Advoc. Off., 4 F.4th at
1200. We are mindful that, in this Circuit, a preliminary injunc-
tion is an extraordinary remedy not to be granted unless the mo-
vant clearly establishes the burden of persuasion for each of the
four elements.
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.
2000).
On appeal, Defendants argue that the second preliminary
injunction satisfies none of these elements.
a. Substantial likelihood of success on the merits
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 26 of 63

-- 26 of 63 --

21-13455 Opinion of the Court 27
“A substantial likelihood of success on the merits requires
a showing of only
likely or probable, rather than
certain success.”
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1298 (11th Cir.
2005) (emphasis in original). Here, Defendants argue that the dis-
trict court erred in finding that Melendez was likely to succeed on
the merits of his Eighth Amendment claim as to the conditions of
his confinement.
The Eighth Amendment’s prohibition against cruel and
unusual punishment “prohibits the ‘unnecessary and wanton in-
fliction of pain,’”
Thomas, 614 F.3d at 1303 (11th Cir. 2010) (quot-
ing
Hudson v. McMillian, 503 U.S. 1, 5 (1992)), “or the infliction
of pain totally without penological justification,”
Ort v. White,
813 F.2d 318, 321 (11th Cir. 1987). The Eighth Amendment can
serve as a basis for a claim challenging specific conditions of con-
finement.
Thomas, 614 F.3d at 1303. A conditions-of-
confinement claim “requires a two-prong showing”: (1) “an objec-
tive showing of a deprivation or injury that is ‘sufficiently serious’
to constitute a denial of the ‘minimal civilized measure of life’s
necessities’” and (2) “a subjective showing that the official had a
‘sufficiently culpable state of mind.’”
Id. at 1304 (quoting
Farmer
v. Brennan, 511 U.S. 825, 834 (1994));
see also Hamm v. DeKalb
County, 774 F.2d 1567, 1572 (11th Cir. 1985) (explaining an Eighth
Amendment violation may occur when a state fails “to provide
prisoners with reasonably adequate food, clothing, shelter, and
sanitation”). Whether an injury or deprivation is sufficiently seri-
ous to satisfy the objective prong “is a question of law we evalu-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 27 of 63

-- 27 of 63 --

28 Opinion of the Court 21-13455
ate based on ‘evolving standards of decency,’” and “[w]e balance
these standards of decency against prison officials’ need to keep
the prison safe.”
Thomas, 614 F.3d at 1307 (quoting
Rhodes v.
Chapman, 452 U.S. 337, 346 (1981)). An inmate does not need to
await a tragic event before seeking relief, but he must show that
“a condition of his confinement ‘pose[s] an unreasonable risk of
serious damage to his future health’ or safety.”
Chandler v. Cros-
by, 379 F.3d 1278, 1289 (11th Cir. 2004) (alteration in original)
(quoting
Helling v. McKinney, 509 U.S. 25, 35 (1993)).
With respect to the subjective inquiry in prison conditions
cases, “the relevant state of mind for purposes of liability is delib-
erate indifference.”
Thomas, 614 F.3d at 1304;
Farmer, 511 U.S. at
834. The deliberate indifference standard sets a “high bar” in the
prison context.
Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir.
2020). “Ordinary malpractice or simple negligence won’t do; in-
stead, the plaintiff must show ‘subjective recklessness as used in
the criminal law.’”
Id. at 1285–86 (quoting
Farmer, 511 U.S. at
839–40). Thus, the plaintiff must show defendants “subjectively
knew of the substantial risk of serious harm and that [they] know-
ingly or recklessly disregarded that risk.”
Goodman v. Kim-
brough, 718 F.3d 1325, 1332 (11th Cir. 2013) (alteration in origi-
nal) (quoting
Halte v. Tallapoosa County, 50 F.3d 1579, 1583
(11th Cir. 1995)). Whether prison officials possessed the requisite
awareness of the risk “is a question of fact subject to demonstra-
tion in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 28 of 63

-- 28 of 63 --

21-13455 Opinion of the Court 29
knew of a substantial risk from the very fact that the risk was ob-
vious.”
Id. (quoting
Farmer, 511 U.S. at 842).
We have long held that “administrative segregation and
solitary confinement do not, in and of themselves, constitute cru-
el and unusual punishment.”
Sheley v. Dugger, 833 F.2d 1420,
1428–29 (11th Cir. 1987). But “the length of confinement cannot
be ignored in deciding whether the confinement meets constitu-
tional standards”; therefore, “the length of time in isolation is a
factor which must be considered” in analyzing an inmate’s Eighth
Amendment claim.
Id. at 1429 (quoting
Hutto v. Finney, 437 U.S.
678, 686 (1978);
accord Hutto, 437 U.S. at 486–87 (“[T]he length of
confinement cannot be ignored in deciding whether the confine-
ment meets constitutional standards. A filthy, overcrowded cell
and a diet of ‘grue’ might be tolerable for a few days and intolera-
bly cruel for weeks or months.”). Indeed, certain “conditions of
confinement may establish an Eighth Amendment violation ‘in
combination’ when each would not do so alone, but only when
they have a mutually enforcing effect that produces the depriva-
tion of a single, identifiable human need such as food, warmth, or
exercise.”
Wilson v. Seiter, 501 U.S. 294, 304 (1991). And there is
a “‘well established’ Eighth Amendment right ‘not to be confined
. . . in conditions lacking’” either basic sanitation or hygiene.
See
Brooks v. Warden, 800 F.3d 1295, 1303–04 (11th Cir. 2015) (quot-
ing
Chandler v. Baird, 926 F.2d 1057, 1065–66 (11th Cir. 1991));
see also Chandler, 926 F.2d at 1063–66.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 29 of 63

-- 29 of 63 --

30 Opinion of the Court 21-13455
Given our deferential standard of review at the preliminary
injunction stage,
see Jones, 950 F.3d at 806, we cannot say that the
district court abused its discretion in finding that Melendez’s
Eighth Amendment claim was likely to succeed on the merits. At
the outset, we note that many of Defendants’ arguments center
on the district court’s factual findings and credibility determina-
tions made in granting the second preliminary injunction. But
our review of the district court’s factual findings is for clear error,
meaning that, after reviewing the record evidence, we “must be
left with the definite and firm conviction that a mistake has been
committed.”
Bryant, 530 F.3d at 1377 (1377 (quoting
Dresdner
Bank, 465 F.3d at 1275);
Thomas, 614 F.3d at 1307. And here, we
find that the district court’s factual findings are supported by the
record evidence and based on credibility determinations it made
after listening to the witnesses’ testimonies. The district court
was permitted to make credibility determinations as to the wit-
nesses during the three-day evidentiary hearing,
see McDonald’s
Corp v. Robertson, 147 F.3d 1301, 1311–12 (11th Cir. 1998), and
we give the district court’s credibility determinations made at a
preliminary injunction evidentiary hearing “a great deal of defer-
ence,”
see Mesa Air Grp. v. Delta Air Lines, Inc., 573 F.3d 1124,
1130 n.7 (11th Cir. 2009);
see also Stano v. Butterworth, 51 F.3d
942, 944 (11th Cir. 1995) (“[A]s mandated by the Supreme Court,
we will give even ‘greater deference’ to factfindings of the district
court that are based on determinations of the credibility of wit-
nesses.” (quoting
Anderson, 470 U.S. at 575)).
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 30 of 63

-- 30 of 63 --

21-13455 Opinion of the Court 31
Turning to the objective prong, the district court did not
abuse its discretion at the preliminary injunction stage in finding
that Melendez made a “showing of a deprivation or injury that is
‘sufficiently serious’ to constitute a denial of the ‘minimal civilized
measure of life’s necessities’” based on the record before us.
See
Thomas, 614 F.3d at 1304 (quoting
Farmer, 511 U.S. at 834). As
the district court found, for a vast majority of the relevant time
period, Melendez was placed in CM I status. The FAC defines
CM as “the separation of an inmate apart from the general popu-
lation, for reasons of security or the order and effective manage-
ment of the institution, when the inmate, through his or her be-
havior, has demonstrated an inability to live in the general popu-
lation without abusing the rights and privileges of others.” Fla.
Admin. Code r. 33-601.800(1)(a). CM I is the most restrictive of
CM designations.
Id. r. 33-601.800(2)(a). The FAC states that CM
inmates shall have an exercise schedule “to ensure a minimum of
six hours per week . . . of exercise out of doors,”
id. r. 33-
601.800(10)(m), and a minimum of three showers per week,
id. r.
33-601.800(10)(e). FDC staff are required to visit CM units week-
ly,
id. r. 33-601.800(15), and the warden (or assistant warden) is a
member of the ICT,
id. r. 33-601.800(1)(g), which “evaluate[s] the
recommendations for CM placement and the mental health as-
sessment, interview[s] the inmate, and consider[s] all relevant in-
formation provided to the ICT by the inmate,
id. r. 33-
601.800(3)(h). ICT is required to review an inmate’s CM status
once per week for the first 60 days and once every 30 days there-
after.
Id. r. 33-601.800(16)(a). “The purposes of this review shall
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 31 of 63

-- 31 of 63 --

32 Opinion of the Court 21-13455
be to reduce the inmate’s status to the lowest management level
possible or return the inmate to general population as soon as the
facts of the case indicate that this can be done safely.”
Id.
Here, the district court—relying in part on the reasoning
from its first injunction—found that there was evidence showing
Melendez’s “lengthy confinement in [CM I] pose[d] a substantial
risk of serious harm” such that he was likely to succeed on his
Eighth Amendment conditions of confinement claim. The district
court explained that Melendez was consigned to CM I status for
an “inordinately long period of time,” which “in combination”
with the conditions of how CM I status was applied to him, sug-
gested that he had been deprived of the “minimal civilized meas-
ure of life’s necessities.” The district court found that Melendez
was placed in excessive periods of isolation and deprived of the
minimum out-of-cell recreation time and number of showers re-
quired by the FAC for CM I status inmates. The district court
credited the testimony of Pacholke and Melendez, who both stat-
ed that Melendez had little to no out-of-cell time and went ex-
tended periods of time without showering, to the point he had
developed a staph infection on his legs. The court further relied
on Melendez’s summary of the special housing unit records pro-
duced by Defendants during discovery, finding that Melendez was
allowed outdoor recreation only 20 times out of 2,527 days and
received the required weekly minimum of showers only 195 out
of 361 weeks while having CM status. Furthermore, the district
court found that the evidence demonstrated Melendez’s confine-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 32 of 63

-- 32 of 63 --

21-13455 Opinion of the Court 33
ment in CM I posed a substantial risk of serious harm to his men-
tal and physical health, crediting Dr. Kupers’s opinions that: (1)
Melendez suffered from major depressive disorder with psychotic
features; (2) Melendez’s mental illness had worsened considerably
during his years of solitary confinement; and (3) he often thought
about suicide. The court also expressed concern that FDC mental
health professionals did not recognize nor record the extent of
Melendez’s mental illness. The court pointed specifically to
MDST’s August 19 review of Melendez’s treatment progress,
which did not mention Melendez’s days-earlier “suicidal gesture”
of inserting battery nails into his arm nor that Melendez was
“hearing voices,” even though Melendez testified that he had in-
formed MDST of the occurrence.
In issuing the second preliminary injunction, which ex-
pressly incorporated the reasoning of the first injunction, the dis-
trict court credited Melendez’s testimony, as well as his two wit-
nesses, Pacholke and Dr. Kupers. Dr. Kupers extensively testified
as to his evaluation and diagnosis of Melendez and as to the ef-
fects of long-term solitary confinement on mentally ill inmates.
For example, Dr. Kupers testified that Melendez had major de-
pressive disorder and suffered from auditory “command halluci-
nations,” that solitary confinement can exacerbate mental illness,
that Melendez’s mental health had deteriorated while in solitary
confinement, and that Melendez “is someone who is an extremely
serious suicide risk” with a long history of suicidal behavior. Ad-
ditionally, Pacholke testified that, based on his review of Melen-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 33 of 63

-- 33 of 63 --

34 Opinion of the Court 21-13455
dez’s records, Melendez very rarely gets out of his cell and had
participated in little to no recreation or therapeutic programing or
classes while in CM, and that Melendez did not require confine-
ment in solitary on a near-permanent basis. The court relied on
Melendez’s testimony that he had little to no out-of-cell time
while in CM, that he was not allowed to keep his walker in CM
because officials told him he would not need it, and that his re-
quests for outdoor recreation were either ignored or denied. And
the court recognized that, even though the mental health experts
disagreed on whether Melendez was legitimately suicidal, Melen-
dez had testified that he thought about self-harm “a lot.”
Thus, the district court concluded that Melendez—an in-
mate (1) diagnosed with major depressive disorder with psychotic
features that was exacerbated by his extended stay in solitary con-
finement, (2) having a history of self-injurious acts while in CM,
with some requiring emergency treatment, and (3) determined to
be suicidal by a psychiatrist (Dr. Kupers)—had demonstrated his
lengthy confinement in CM I, in combination with him receiving
little to no out-of-cell recreation over the majority of a five-year
period and being denied showers for multi-week periods, posed a
substantial enough risk of serious harm to his mental and physical
health to satisfy the objective prong of his Eighth Amendment
claim.
Based on the record and our deferential review at the pre-
liminary injunction stage, we conclude that the district court did
not err in its conclusion or clearly err in its factual findings. In-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 34 of 63

-- 34 of 63 --

21-13455 Opinion of the Court 35
deed, while solitary confinement, in and of itself, does not consti-
tute cruel and unusual punishment, we must consider the length
of the confinement in analyzing Melendez’s claim.
See Hutto,
437 U.S. at 686–87 (“[T]he length of confinement cannot be ig-
nored in deciding whether the confinement meets constitutional
standards.”);
Sheley, 833 F.2d at 1428–29 (remanding for an evi-
dentiary hearing because “Sheley’s twelve-year confinement in
CM raises serious constitutional questions,” and noting that “[i]n
addition to the mental and physical deterioration he alleges,
Sheley’s Eighth Amendment claim is supported, at this stage of
the litigation, by his contention that his confinement in CM is pu-
nitive in nature”). And certain conditions of confinement in com-
bination with one another can constitute an Eighth Amendment
violation, even if each would not do so alone, “when they have a
mutually enforcing effect that produces the deprivation of a sin-
gle, identifiable human need such as food, warmth, or exercise.”
Wilson, 501 U.S. at 304. The district court found that the evidence
showed Melendez had been deprived of out-of-cell recreation for
extended periods of time and of basic hygiene (i.e., being unable
to shower for weeks, which led to a staph infection) during his
time in CM.
See id.;
Brooks, 800 F.3d at 1303–04 (collecting cas-
es). Coupled with Dr. Kupers’s opinion, credited by the district
court, that Melendez’s mental illness was exacerbated by the
lengthy stay in solitary confinement, we agree that Melendez—at
this stage and on this record—has made “an objective showing of
a deprivation or injury that is ‘sufficiently serious’ to constitute a
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 35 of 63

-- 35 of 63 --

36 Opinion of the Court 21-13455
denial of the ‘minimal civilized measure of life’s necessities.’”
See
Thomas, 614 F.3d at 1304 (quoting
Farmer, 511 U.S. at 834).
Defendants, however, contend that the district court erred
by failing to consider their “legitimate penological justifications”
for placing (and retaining) Melendez in CM. Defendants assert
that “[a]mong ‘unnecessary and wanton’ inflictions of pain are
those that are ‘totally without penological justification,’”
Rhodes,
452 U.S. at 346 (quoting
Gregg v. Georgia, 428 U.S. 153, 173, 183
(1976)), and that the conditions inflicting unnecessary pain or suf-
fering upon the prisoner “must be balanced against competing
penological goals,”
LaMarca v. Turner, 995 F.2d 1526, 1535 (11th
Cir. 1993). Defendants assert that the district court failed to de-
termine whether Melendez’s placement in CM was totally with-
out penological justification.
Defendants misread our precedents. We agree that, in de-
termining whether an Eighth Amendment violation has occurred,
we must balance the conditions inflicting unnecessary pain or suf-
fering upon the prisoner against competing penological goals.
See Thomas, 614 F.3d at 1307;
LaMarca, 995 F.2d at 1535;
Ort, 813
F.2d at 321. And one way to prove an injury was “unnecessary
and wanton” is to show that the infliction of pain is without peno-
logical justification. But, contrary to Defendants’ suggestion, that
is not the
only way an inmate can prove an Eighth Amendment
violation. Rather, when penological justifications exist, we must
balance those justifications against countervailing considerations
suggesting that an injury or deprivation alleged by an inmate is
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 36 of 63

-- 36 of 63 --

21-13455 Opinion of the Court 37
“objectively ‘sufficiently serious’ to satisfy the objective prong.”
Thomas, 614 F.3d at 1307 (first quoting
Rhodes, 452 U.S. at 346;
then quoting
Farmer, 511 U.S. at 834).
Defendants additionally contend that the district court
failed to consider Melendez’s actions while under CM status, such
as disobeying orders, disrespecting a prison officer, and tampering
with a safety device. While Defendants recognize these infrac-
tions are “non-violent,” they point to their expert’s testimony that
they are “serious violations” because disruptions and disturbances
can interfere with staff’s ability to hear an inmate calling for help
in an emergency. Defendants further point to an incident be-
tween Melendez and Sergeant Williams in July 2020, which
served as the basis for Melendez’s most recent placement in CM I.
During this incident, Melendez allegedly placed his hands around
Williams’s throat during a medical examination following Melen-
dez’s act of self-harm after Williams placed an ammonia stick on
Melendez. Defendants note that the disciplinary report as to this
incident was overturned, but contend that it was based on a tech-
nical error and that the underlying conduct can serve as a basis for
retaining Melendez in CM I.
In its order, the district court found that none of Defend-
ants’ witnesses “could explain why a CM or administrative con-
finement status is currently justified based on [Melendez’s] pre-
sent risk assessment.” The court noted that Melendez’s security
evaluations for September and October 2021 were “satisfactory
and above satisfactory” and that Dr. Greenberg had testified that
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 37 of 63

-- 37 of 63 --

38 Opinion of the Court 21-13455
Melendez could “care for himself” and that he ”follows the rules.”
The district court relied on an FDC document stating Melendez
“has demonstrated that he has the coping resources to manage
CM or GP environments.” The district court also credited
Pacholke’s opinion that there was no sound penological purpose
served by continuing to keep Melendez in CM. And the district
court, at the hearing and in its written order, explained that if
Melendez engaged in conduct warranting a return to CM status,
Defendants were permitted to immediately begin the ICT status
so long as it was recorded by video and audio. The district court’s
findings are not clearly erroneous, and it did not abuse its discre-
tion in finding that CM was not currently penologically justified
on this record at this stage in the litigation.
Defendants also cite to
Bass v. Perrin, 170 F.3d 1312 (11th
Cir. 1999), but we find
Bass factually distinguishable. In
Bass, two
CM inmates had their outdoor recreation time suspended for
years through a formal process based on their possession of fire-
arms, stabbing another inmate, murdering a correctional officer,
and participating in a violent escape attempt.
See id. at 1315. The
inmates challenged this deprivation of outdoor time as an Eighth
Amendment violation.
Id. On appeal, we explained that com-
plete lack of outdoor recreation time “certainly involves the ‘in-
fliction of pain’” because, while “being in solitary confinement
with minimal time outside is only marginally different from being
in solitary confinement with no time outside, there is nevertheless
a significant difference between some time outside—even a min-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 38 of 63

-- 38 of 63 --

21-13455 Opinion of the Court 39
imal amount—and none at all.”
Id. at 1316. However, we ex-
plained that the “pain” was not “unnecessary” or “totally without
penological justification” and that “it would be hard to imagine a
situation in which two persons had shown a greater threat to the
safety and security of the prison,” given the inmates’ violent crim-
inal convictions and their continued violent behavior including
battery and murder since being incarcerated.
See id. (quoting
Gregg, 428 U.S. at 183). Thus, the complete deprivation of out-
door recreation time “was a rational, albeit debatable, response to
the substantial threat posed by the plaintiffs.”
Id. at 1317. Melen-
dez, however, has not engaged in the pervasive violent conduct
we found penologically justified the
Bass inmates’ complete dep-
rivation of out-of-cell recreation.
Defendants further claim that the district court relied on
insufficient evidence to determine Melendez had little to no out-
of-cell time. Defendants contend that the district court improper-
ly considered Melendez’s demonstrative exhibit, in support of his
motion, summarizing the special housing unit records that “were
produced by FDC in expedited discovery” and recorded Melen-
dez’s “time out of cell.” Defendants assert that the summary was
hearsay, not authenticated, and they were not given the oppor-
tunity to challenge it. Defendants, however, did not object to
Melendez’s reliance on the summary of the records in their re-
sponse to the motion. At the evidentiary hearing, the district
court informed Defendants’ counsel that “the logs . . . that
were . . . of record do not show that Mr. Melendez has been pro-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 39 of 63

-- 39 of 63 --

40 Opinion of the Court 21-13455
vided those opportunities not to be isolated.” Similarly, the dis-
trict court asked Defendants’ witness, Kirkland, whether FDC had
records of inmates receiving privileges and program opportuni-
ties, Kirkland stated that there were such records, and Melendez’s
counsel confirmed with Kirkland that the “logs” in question were
titled “Daily Record of Special Housing” and their form number
was “DC6-229.” These two labels corresponded with the sample
records Melendez submitted with his motion. Yet Defendants’
counsel did not object to the court’s consideration of the sum-
mary of records. Generally, a failure to object to evidence on the
ground of hearsay results in waiver of appellate review of the is-
sue.
See, e.g.,
United States v. McDonald, 935 F.2d 1212, 1221
(11th Cir. 1991).
Moreover, “[a]t the preliminary injunction stage, a district
court may rely on affidavits and hearsay materials which would
not be admissible evidence for a permanent injunction, if the evi-
dence is ‘appropriate given the character and objectives of the in-
junctive proceeding.’”
Levi Strauss & Co. v. Sunrise Int’l Trading
Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting
Asseo v. Pan Am.
Grain Co., 805 F.2d 23, 26 (1st Cir. 1986));
see also Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981) (“[A] preliminary injunction
is customarily granted on the basis of procedures that are less
formal and evidence that is less complete than in a trial on the
merits.”). Relying on
Levi Strauss, Defendants contend that the
record summary was not appropriate for the court to consider be-
cause there was an evidentiary hearing where witnesses testified
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 40 of 63

-- 40 of 63 --

21-13455 Opinion of the Court 41
and exhibits were introduced. We find Defendants’ argument
without merit. Indeed, the district court in
Levi Strauss held an
evidentiary hearing regarding the preliminary injunction at issue
where it took witness testimony.
See 51 F.3d at 984. Therefore,
regardless of whether the record summary would be admissible
evidence in support of a permanent injunction, the district court
did not abuse its discretion in relying on the summary at the pre-
liminary injunction stage.2
In a similar vein, Defendants criticize the district court’s
reliance on the testimonies of Pacholke and Melendez in finding
Melendez had little to no out-of-cell time. Defendants speculate
that Pacholke relied on the summary of records, rather than the
records themselves (that were provided by Defendants), in form-
ing his opinion. As to Melendez, Defendants contend that his tes-
timony was “self-serving,” and that prisoners’ suits should be
viewed with skepticism, are predicated upon a prisoner’s bore-
dom and resentment of authority, and can lack substantial basis in
fact. But, as we have explained, the district court’s factual find-
ings are reviewed for clear error, and the district court was per-
mitted to resolve credibility determinations after considering the
evidence and testimony at the evidentiary hearing. And the dis-
2 We express no opinion as to whether Melendez’s summary of the special
housing unit records would be admissible at a permanent injunction eviden-
tiary hearing nor at trial if Defendants later choose to object to its introduc-
tion into evidence.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 41 of 63

-- 41 of 63 --

42 Opinion of the Court 21-13455
trict court did so, relying in part on their testimonies to find that
Melendez had received little to no out-of-cell time while in CM I.
We therefore reject this argument.
The subjective prong of Melendez’s Eighth Amendment
claim—the deliberate indifference standard—is a closer call. In its
written order, the district court incorporated its findings and rea-
soning from the first preliminary injunction as to deliberate indif-
ference. The court found that deliberate indifference was estab-
lished because “the risk was obvious,” i.e., the risks of physical
and mental harm associated with prolonged periods of isolation
“are well known, certainly by corrections officials tasked with
promulgating and enforcing rules for safety and well-being of in-
mates and staff.” In finding so, the court relied on Dr. Kupers’s
opinions about the literature on the effects of long-term solitary
confinement as well as commentary by Supreme Court Justices
and by some circuit court opinions. The court also explained that
the prison warden and assistant wardens were aware of Melen-
dez’s extended stay in CM I given their obligations under the FAC
to visit CM units weekly. The district court further relied on a
July 2018 letter sent by Melendez’s attorney to the then-warden of
the prison where Melendez was held, describing his mental health
deterioration after spending two years in solitary confinement.
As to the district court’s conclusion that Defendants knew
the substantial risk Melendez faced by the fact that the risk was
“obvious,” we hesitate to reach the same conclusion at this stage.
Dr. Kupers explained that there was “large literature on the ef-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 42 of 63

-- 42 of 63 --

21-13455 Opinion of the Court 43
fects of long-term . . . solitary confinement” with an “evolving
consensus” that, for inmates with serious mental illness, time
served in isolation greatly exacerbates mental illness and “too of-
ten results in suicide.” But Dr. Ryan Labrecque, Defendants’ ex-
pert witness, testified that Dr. Kupers relied on “opinion pieces
and other low-methodological-quality studies, largely those with-
out comparison groups” in support of his position and dismissed
as outliers “findings from the more methodologically rigorous
studies.” We hesitate to conclude, based on this record, that the
risk of harm to mentally ill inmates in lengthy solitary confine-
ment was obvious to Defendants such that they were deliberately
indifferent. On the other hand, we recognize that Melendez’s
claims of the risk of substantial harm go further. Melendez claims
that he was held for the vast majority of a five-year period in re-
strictive housing during which: (1) his mental health substantially
deteriorated due to his mental illness, resulting in acts of self-
harm, and (2) he received little to no out-of-cell time for months
(or years) and often was denied the FAC-required number of
three showers per week, including a four-week period where
Melendez was not permitted to shower and subsequently devel-
oped a staph infection in his legs.
Nonetheless, without deciding whether the risk of serious
harm Melendez faced was obvious to Defendants, we conclude
that the district court did not err in determining that, at this stage,
Melendez had demonstrated deliberate indifference by Defend-
ants based on the July 2018 letter his attorney sent to the prison
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 43 of 63

-- 43 of 63 --

44 Opinion of the Court 21-13455
warden. Melendez’s attorney informed the warden that Melen-
dez had been in CM since September 2016, during which he spent
24 hours per day in his cell, and that his mental health had “dete-
riorated substantially.” The attorney also informed the warden
that Melendez reported that (1) “he informed officers that he was
having a psychological crisis and needed to go to medical,” (2) of-
ficers refused to take him to the medical unit for a crisis visit, and
(3) he punctured a vein with a foreign object and began bleeding
in his cell, which resulted in Melendez being taken to the infirma-
ry and beaten off camera by several officers. The attorney addi-
tionally listed grievances Melendez had filed, including one that
stated the solitary confinement process prevented him from
meaningful social interactions and was harmful to him
“[m]entally, [p]hysically and [e]motionally.” The attorney asked
the warden to investigate Melendez’s reports, respond to his
grievances, and transfer him to the medical unit to receive appro-
priate medical and mental health care.3 And an assistant warden
at the prison acknowledged receipt of the attorney’s letter, con-
firming that the allegations had been documented, Melendez had
3 Although not explicitly relied upon by the district court, we note that
Melendez’s attorney sent a second letter to FDC regional director John
Palmer on August 4, 2020—before the filing of the instant action—to inform
the director of Melendez’s suicidal behavior and history of self-harm while in
isolation and to state that this behavior should have resulted in immediate
transfer to an intensive psychiatric care facility. And, after filing suit, Melen-
dez sent two letters to Defendants’ attorney before he filed his first prelimi-
nary injunction motion complaining of grievances, including the lack of
showers and lack of out-of-cell recreation time.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 44 of 63

-- 44 of 63 --

21-13455 Opinion of the Court 45
been evaluated, and that the grievances had been reviewed and
addressed.4 Finally, we note that FDC’s records as to Melendez
show a history of self-harm attempts, even if they do not state
that the attempts were committed with suicidal intent.
Thus, the court did not clearly err in finding that Melendez,
through his attorney, specifically informed Defendants of the sub-
stantial risk of serious harm he faced—the deterioration of his
mental health based on his extended stay in CM, evidenced by his
acts of self-harm, without the “minimal civilized measure of life’s
necessities,”
see Thomas, 614 F.3d at 1304 (quoting
Farmer, 511
U.S. at 834), including, e.g., the allowance of any out-of-cell time
for recreation.
Cf. Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d
611, 621–22 (11th Cir. 2007) (concluding a reasonable juror could
determine that the defendant “actually knew” the inmate faced a
substantial risk of serious harm based on the plaintiff’s testimony
4 For the first time in their reply brief, Defendants contend that the letters
submitted by Melendez that pre-date January 2021, the beginning of his cur-
rent CM placement, are outside the scope of his challenge and thus were not
relevant for the court to consider. We generally decline to address argu-
ments raised for the first time in an appellant’s reply brief.
See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014). Moreover, we
disagree with Defendants’ premise—the July 2018 letter informed FDC offi-
cials of Melendez’s mental health issues, including self-injurious behavior,
and that Melendez’s nearly two-year stay in CM I, without any out-of-cell
recreation time, had resulted in his mental health deteriorating substantially.
We fail to see how this letter is not relevant to the determination of whether
Defendants actually knew of the substantial risk Melendez faced such that
they were deliberately indifferent.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 45 of 63

-- 45 of 63 --

46 Opinion of the Court 21-13455
that he told the defendant specific information about the risk to
his life and asked to be transferred or placed in protective custo-
dy).
Defendants, however, assert that their records show that
Melendez either did not express to their mental health staff his
complaints of being harmed by the restrictive housing or denied
that he was being harmed or suicidal, instead stating his self-harm
acts were “instrumental” or for “secondary gain”; in other words,
for the purpose of being removed from CM. In essence, Defend-
ants complain that the district court did not credit the evidence
and testimony they presented against the issuance of the second
preliminary injunction.
We recognize that there is evidence in the record to sup-
port Defendants’ position that they did not know of any substan-
tial risk of serious harm Melendez faced nor knowingly or reck-
lessly disregarded that risk. For example, Defendants submitted
an October 11, 2021, psychiatric evaluation written by Dr. Green-
field, in which he wrote that Melendez denied suicidality and au-
ditory hallucinations. But Melendez presented testimony and ev-
idence to the contrary in support of the injunction. During his
testimony, Melendez stated that he experienced auditory halluci-
nations, which he claimed he had informed FDC officials of dur-
ing his mental health examinations. He denied making the state-
ments in his evaluations that he was not suicidal. In an October 8,
2021, evaluation, Melendez reported that he was “suicidal due to
voices telling him to kill himself.” Dr. Kupers also expressed
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 46 of 63

-- 46 of 63 --

21-13455 Opinion of the Court 47
skepticism during his testimony that Melendez had denied audito-
ry hallucinations and suicide to FDC officials and questioned the
lack of reference to Melendez’s past self-harm attempts in many
of the medical records. Indeed, the district court was troubled by
the omission of Melendez’s August 2021 self-harm act involving
“nails” in an MDST treatment progress report written only days
later.
The district court was permitted to make credibility deter-
minations and resolve conflicts in the evidence and testimony
presented by the parties. While we may not have made the same
factual findings if we were in the position of the district court, our
review of those factual findings is for clear error. And, after re-
viewing the record, we are not “left with the definite and firm
conviction that a mistake has been committed.”
See Thomas, 614
F.3d at 1307 (quoting
Anderson, 470 U.S. at 573).
Accordingly, while we do not rule on the merits of Melen-
dez’s claim,5 we conclude that the district court, at the prelimi-
nary injunction stage, did not abuse its discretion in finding that
5 Indeed, in the preliminary injunction context, “the findings of fact and con-
clusions of law made by a court granting a preliminary injunction are not
binding at trial on the merits,” and “it is generally inappropriate for a federal
court at the preliminary-injunction stage to give a final judgment on the mer-
its.”
See Camenisch, 451 U.S. at 395.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 47 of 63

-- 47 of 63 --

48 Opinion of the Court 21-13455
Melendez’s Eighth Amendment conditions of confinement claim
had a substantial likelihood of succeeding on the merits.6
b. Substantial threat of irreparable harm
Defendants also contend that the district court abused its
discretion in finding Melendez demonstrated a risk of irreparable
harm. Specifically, Defendants argue that Melendez has not
shown irreparable harm because the district court stated that
“death may not be ‘probable’ based on [his] history and mental
health assessments,” because Melendez did not commit an act of
self-harm between November 2021 and January 2022, and be-
cause Melendez’s “self-serving behavior” should not constitute
irreparable harm.
Here, the district court found that Melendez would suffer
irreparable harm in the absence of injunctive relief. While noting
the experts disagreed on whether he was legitimately suicidal or
harmed himself for “secondary gain,” it was undisputed that
Melendez had engaged in multiple acts of self-harm, with some
requiring emergency treatment. The court noted that regardless
of Melendez’s intent, “acts of self-harm can result in death,” citing
6 Defendants also raise a “respondeat superior” argument, i.e., that the dis-
trict court was required to, but did not find, the Secretary in his individual
capacity played a role in the unconstitutional conduct alleged in the case.
Defendants, however, did not raise this argument in their response to the
second preliminary injunction or at the evidentiary hearing, and we decline
to address it for the first time on appeal.
See Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 48 of 63

-- 48 of 63 --

21-13455 Opinion of the Court 49
Dr. Kupers’s testimony that “self-harm is an extreme action” and
should be treated “as serious because it can, and at times does,
lead to death.”
Reviewing the record, the district court did not abuse its
discretion in concluding that there was a substantial threat
Melendez will suffer irreparable harm if the injunction was not
granted.
See Ga. Advoc. Off., 4 F.4th at 1208. Although the dis-
trict court did not resolve the factual dispute of the intent behind
Melendez’s self-harm acts, it nonetheless found that those acts
could—intentionally or not—result in Melendez’s death. Indeed,
the record reflects that some of Melendez’s acts of self-harm have
resulted in hospitalization and emergency treatment. The district
court also noted Melendez’s testimony that he thought about self-
harm “a lot” and “came close” to harming himself in the month
preceding the second preliminary injunction. Additionally, while
one recent FDC record states that Melendez’s “mood and behav-
iors have been stable,” and he has not engaged in any self-
injurious behavior, another record shows that Melendez told
FDC mental health staff he was “suicidal due to voices telling him
to kill himself.” And Dr. Kupers, in an affidavit attached to
Melendez’s motion, warned that if Melendez was replaced in CM
at that time, “his level of despair and anxiety will rise quickly”
such that, “to a reasonable degree of medical certainty, he would
be at extremely high risk of engaging in further acts of self-harm
and dying of the wounds he inflicts on himself.”
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 49 of 63

-- 49 of 63 --

50 Opinion of the Court 21-13455
As such, the district court did not err in finding that Melen-
dez has shown a substantial risk of irreparable harm if the injunc-
tive relief were not granted.
c. Balance of the harms and the public interest
Defendants also contend that the district court erred in
finding that the threatened harm to Melendez outweighed any
potential harm to Defendants and that the injunction would not
disservice the public interest. The balance-of-the-harms and pub-
lic-interest elements merge when the government is the party op-
posing the injunctive relief.
Swain, 961 F.3d at 1293.
Here, the district court found that the balance of the par-
ties’ harms weighed in favor of Melendez and that its order trans-
ferring him to GP served the public interest given its finding that
there was a past and continuing constitutional violation. The
court explained that it was “not unsympathetic to [FDC’s] ex-
traordinary responsibility to administer safe prisons under im-
mense pressures” but that, “[w]hen a court is confronted with
convincing evidence of inhumane conditions, ‘court-ordered cor-
rection of [those] inhumane prison conditions’ is appropriate.” It
found this was “especially true when prison officials have been
informed their practices have infringed or are infringing an in-
mate’s constitutional rights, but those officials persist in that con-
duct.”
Defendants argue that the district court, in weighing the
parties’ harms, ignored the risk FDC faces by requiring FDC to
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 50 of 63

-- 50 of 63 --

21-13455 Opinion of the Court 51
discharge Melendez, who they assert belongs in CM I due to his
history of violence and non-violent disruptive behavior, to GP.
They assert that the district court’s injunction undermines FDC’s
ability to effectively manage prison administration.
We recognize that “[p]rison administrators . . . should be
accorded wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to pre-
serve internal order and discipline and to maintain institutional
security.”
Mosley v. Zachery, 966 F.3d 1265, 1273 (11th Cir. 2020)
(alterations in original) (emphasis removed) (quoting
Bell v. Wolf-
ish, 411 U.S. 520, 547 (1979)). But, at the same time, “the public
interest is served when constitutional rights are protected.”
Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th
Cir. 2019). As explained previously, Melendez has, at this stage,
shown a substantial likelihood of success on the merits of his
Eighth Amendment claim based on his extended stay in CM I
over the majority of a five-year period that was often without the
privileges afforded to CM I inmates such as out-of-cell recreation
time or showers and that, as a result, exacerbated his mental ill-
ness, as evidenced by his acts of self-harm.
Furthermore, the district court found that none of Defend-
ants’ witnesses “could explain why a CM or administrative con-
finement status is currently justified based on [Melendez’s] pre-
sent risk assessment.” As the district court found, since being re-
leased from CM pursuant to the first preliminary injunction,
Melendez has received satisfactory and above satisfactory security
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 51 of 63

-- 51 of 63 --

52 Opinion of the Court 21-13455
evaluations. Dr. Greenberg testified that Melendez could care for
himself and follow the rules, and an FDC record stated that
Melendez had the coping resources to manage CM or GP envi-
ronments. The district court also credited Pacholke’s opinion that
there was no sound penological purpose served by continuing to
keep Melendez in CM. And we note that the district court specif-
ically asked Defendants’ counsel during the evidentiary hearing to
provide evidence explaining Melendez’s current security risk if
placed in GP and why it was necessary for him to return to CM
status.
Moreover, the second preliminary injunction only pertains
to Melendez individually—specifically, his housing in GP—and
does not prevent Defendants from initiating the ICT process if
Melendez engages in conduct warranting a recommendation for
CM status. Defendants simply must record by audio and video
the ICT hearings and any mental health examinations related
thereto and file them with the court under seal. Defendants
therefore are not hamstringed from placing Melendez back in CM
if he, in their judgment, becomes a safety threat to FDC staff and
other inmates while housed in GP.
Defendants also contend that the district court should have
“preserve[d] the status quo” in issuing the second preliminary in-
junction by ordering Defendants to provide Melendez his statuto-
rily required privileges as a CM I inmate, e.g., allowing him the
required hours of out-of-cell time and number of showers per
week. But “[i]f the currently existing status quo itself is causing
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 52 of 63

-- 52 of 63 --

21-13455 Opinion of the Court 53
one of the parties irreparable injury, it is necessary to alter the sit-
uation so as to prevent the injury,” e.g., “by allowing the parties
to take proposed action that the court finds will minimize the ir-
reparable injury.”
Canal Auth. v. Callaway, 489 F.2d 567, 576 (5th
Cir. 1974).7 As noted above, Melendez has demonstrated, at the
preliminary injunction stage, a substantial risk of irreparable
harm. In addition, as the district court found, Melendez was only
allowed 20 instances of outdoor recreation over a period 2,527
days and received the required three showers for CM inmates on-
ly 195 out of 361 weeks, contrary to the FAC provisions govern-
ing CM. Based on Defendants’ history of failing to comply with
those rules, we do not believe it was error for the district court to
not merely order Defendants to comply with the FAC instead of
ordering him released to the GP.
We therefore conclude that the district court did not abuse
its discretion in concluding the balance-of-harms and public inter-
est elements favored granting an injunction.
2. Whether the injunction complies with the PLRA
Defendants also contend that the district court failed to
comply with the PLRA in issuing the second preliminary injunc-
tion. Specifically, Defendants assert that the district court’s order
is not “narrowly tailored” because alternative relief could have
7 In
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 53 of 63

-- 53 of 63 --

54 Opinion of the Court 21-13455
been ordered—ordering FDC to comply with their existing statu-
tory obligations with respect to out-of-cell-time and showering in
applying CM status to Melendez. Defendants further contend
that the injunction is not the least intrusive means necessary to
correct the violation and claim that the district court failed to ad-
dress this prong of the PLRA. Finally, Defendants assert that the
district court failed to make particularized findings as to any of the
“need-narrowness-intrusiveness” criteria.
As previously noted, the PLRA provides that “[t]he court
shall not grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and is the
least intrusive means necessary to correct the violation of the
Federal right.” § 3626(a)(1)(A). The PLRA “require[s] particular-
ized findings that each requirement imposed by the preliminary
injunction satisfies each of the need-narrowness-intrusiveness cri-
teria.”
Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1278
(11th Cir. 2020) (alteration in original) (quoting
United States v.
Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228). Particularized find-
ings must be made to each of the criteria, and a district court can-
not “‘simply state in conclusory fashion that the requirements of
the [injunction] satisfy’ the PLRA’s narrowness, necessity, and
non-intrusiveness standards.”
Id. at 1279 (alteration in original)
(quoting
Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir. 2000)).
Reviewing the district court’s order, it made the following
findings as to the PLRA’s requirements. The district court began
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 54 of 63

-- 54 of 63 --

21-13455 Opinion of the Court 55
by finding that the relief was “narrowly tailored, extends no fur-
ther than necessary, and is the least intrusive means to correct the
violation.” The district court explained that Melendez had
“sought much broader relief than what [it] granted”—i.e., transfer
to the TCU and an independent expert evaluation—but it had not
ordered that relief, noting Dr. Kupers’s testimony that he did not
disagree with Dr. Greenfield that Melendez did not currently re-
quire long-term inpatient treatment. The court stated the relief
was tailored to address the constitutional violation because the
evidence showed that Melendez had “spent a majority of the last
five years in CM I status with little to no out-of-cell time” and that
there was “no dispute that solitary confinement should not be a
long-term housing solution for inmates,” citing to the FAC and
the testimony of Defendants’ expert, Dr. Labrecque. The court
found the relief was also “narrowly tailored to address the harm”
because FDC’s own witnesses and records demonstrate unequiv-
ocally that Melendez’s “consignment to solitary conditions [was]
not currently warranted.” Indeed, the court noted the recent sat-
isfactory security evaluations and the lack of testimony from FDC
witnesses to explain why CM status was currently justified based
on Melendez’s present risk assessment. The court also explained
that it had not directed FDC to keep Melendez in GP regardless of
his future behavior and that its order “in no way prevents [De-
fendants] from managing its prisons or enforcing rules designed to
protect inmates and staff.” Furthermore, the court noted that if
Melendez engaged in “future behavior that warrants the imposi-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 55 of 63

-- 55 of 63 --

56 Opinion of the Court 21-13455
tion of disciplinary measures,” e.g., placement back into CM,
FDC was entitled to do so in accordance with FDC policies.
As an initial matter, we reject Defendants’ argument that
the district court failed to address the intrusiveness prong. The
district court’s order explicitly states that the granted relief was
the least intrusive means of correcting the violation. Additionally,
the court made findings as to how FDC was not prevented from
managing its prisons and enforcing its rules by the injunction and
could initiate the ICT process against Melendez if he engaged in
behavior warranting a return to CM, and these findings go to the
PLRA’s intrusiveness prong. We also reject Defendants’ argu-
ment that the district court’s order was merely a conclusory or
formulaic recitation of the PLRA requirements; clearly, the dis-
trict court made findings in support of the “needs-narrowness-
intrusiveness requirements,” even if Defendants believe those
findings are erroneous.
Turning to Defendants’ other PLRA arguments, we con-
clude that none of them have merit. As to the narrowly tailored
requirement, Defendants contend that alternative relief could
have been ordered, e.g., ordering them to comply with their stat-
utory duties set forth in the FAC as to CM inmates that they had
not previously complied with during Melendez’s previous con-
finements in CM. In a similar vein, Defendants argue that the
second preliminary injunction grants relief beyond targeting the
existing wrong because its order releasing Melendez from CM
eliminated a condition that did not violate the Constitution.
See
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 56 of 63

-- 56 of 63 --

21-13455 Opinion of the Court 57
LaMarca, 995 F.2d at 1543 (“While district courts have broad dis-
cretion to fashion equitable relief, such relief must target the exist-
ing wrong.”).
We find that the district court did not abuse its discretion
in finding the granted relief—ordering Melendez released into GP
housing—was narrowly tailored to the alleged constitutional vio-
lation. While Defendants contend that the constitutional viola-
tion found by the district court was limited to the fact that
Melendez was receiving little to no out-of-cell time, the district
court’s findings were not so limited. As explained previously, the
district court incorporated the reasoning from its first preliminary
injunction, in which the court found that: (1) Melendez’s inordi-
nately long confinement in CM I, coupled with conditions such as
lack of out-of-cell recreation and lack of showering (in violation of
the FAC provisions as to CM), suggested he had been deprived of
“the minimal civilized measure of life’s necessities”; and (2) the
lengthy confinement posed a substantial risk of serious harm to
Melendez’s physical and mental health. Moreover, the district
court found that there was no evidence establishing that Melen-
dez should
currently be placed on CM status based on the recent
satisfactory security evaluations and lack of testimony from FDC
to the contrary. And the district court had previously credited Dr.
Kupers’s testimony that solitary confinement exacerbated Melen-
dez’s mental illness. Thus, the relief granted is narrowly tailored
to the alleged constitutional violation identified by the court. We
additionally note that the injunction only applies to Melendez’s
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 57 of 63

-- 57 of 63 --

58 Opinion of the Court 21-13455
individual placement in GP and does not bar Defendants from ini-
tiating the process to place Melendez back in CM should his be-
havior warrant doing so.
Cf. Thomas, 614 F.3d at 1324 (conclud-
ing an injunction was narrowly tailored where it governed the
department’s treatment of only one inmate “only target[ed] the
narrow constitutional violation identified by the district court”—
i.e., “the district court's injunction [did] not prohibit all non-
spontaneous use of chemical agents on [the inmate] but merely
require[d] that the [department’s] trained mental health staff
evaluate his psychological state prior to authorizing such force”).
Defendants also contend that the injunction does not satis-
fy the “least intrusive means necessary” requirement because they
must wait for Melendez to commit behavior warranting a return
to CM before initiating an ICT hearing to do so. We disagree.
The district court found that FDC’s witnesses and correctional
records demonstrated that Melendez’s “consignment to solitary
conditions is not currently warranted” and that finding is not
clearly erroneous. In other words, Melendez would need to ex-
hibit behavior constituting a security risk for Defendants to begin
the process to place him back in CM. And the district court’s or-
der has given Defendants the discretion to do so—Defendants can
impose disciplinary measures in accordance with FDC policies
and may initiate the ICT process if warranted, so long as they are
recorded and presented to the court.
Cf. id. at 1325–26 (uphold-
ing injunction that required “little to no additional expenditures
on the part of” the department of corrections and that did not re-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 58 of 63

-- 58 of 63 --

21-13455 Opinion of the Court 59
quire “onerous continuous supervision by the court or judicial in-
terference in running [the prison]”). Contrary to Defendants’
suggestion, this is not a case where the district court is microman-
aging “the minutiae of prison operations.”
See id. at 1325 (quot-
ing
Lewis v. Casey, 518 U.S. 343, 362 (1996)).
We thus conclude that the district court did not err in find-
ing that the second preliminary injunction satisfied the PRLA’s
requirements.
3. Defendants’ remaining arguments
Defendants raise two final arguments against the second
preliminary injunction. They contend that Melendez’s challenge
to the decision to place him in CM and his requests to be released
from CM could only be made pursuant to a writ of habeas corpus,
and not under § 1983.
“When an inmate challenges the ‘circumstances of his con-
finement’ but not the validity of his conviction and/or sentence,
then the claim is properly raised in a civil rights action un-
der § 1983.”
Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.
2006) (quoting
Hill v. McDonough, 547 U.S. 573, 579 (2006)). By
contrast, “when an inmate raises any challenge to the ‘lawfulness
of confinement or [the] particulars affecting its duration,’ his
claim falls solely within ‘the province of habeas corpus.’”
Id. (al-
teration in original) (quoting
Hill, 547 U.S. at 579). As the Su-
preme Court has stated, “[w]here the prisoner’s claim would not
‘necessarily spell speedier release,’ . . . suit may be brought under
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 59 of 63

-- 59 of 63 --

60 Opinion of the Court 21-13455
§ 1983.”
Skinner v. Switzer, 562 U.S. 521, 525 (2011) (quoting
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).
In his second amended complaint, Melendez sought the
following relief as to his Eighth Amendment claim: (1) an order
requiring that he be removed from CM and transferred to an ap-
propriate FDC facility for inpatient mental health care; (2) an or-
der preventing Defendants from imposing isolation lasting longer
than 72 hours; and (3) an order requiring Defendants to provide
him privileges such as outdoor recreation time, access to his tab-
let, and the minimum-required three showers per week, as well as
to allow him to attend ICT hearings as to his housing status. In
his second preliminary injunction motion, Melendez sought a
similar type of relief. But neither of these requests for relief seek
Melendez’s “‘immediate release from prison,’ or the ‘shortening’
of his term of confinement.”
Wilkinson, 544 U.S. at 79 (quoting
Preiser v. Rodriguez, 411 U.S. 475, 482 (1973));
accord Jenkins v.
Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (“[Conditions of confine-
ment] quite simply encompasses all conditions under which a
prisoner is confined for his term of imprisonment. These include
terms of disciplinary or administrative segregation such as
keeplock or solitary confinement, as well as more general condi-
tions affecting a prisoner’s quality of life . . . .”);
Preiser, 411 U.S.
at 488 (explaining that, in
Haines v. Kerner, 404 U.S. 519 (1972),
the prisoner’s claim that prison officials had acted unconstitution-
ally in placing him in solitary confinement as a disciplinary meas-
ure was properly brought in a § 1983 action, as it was solely relat-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 60 of 63

-- 60 of 63 --

21-13455 Opinion of the Court 61
ed to the state’s alleged unconstitutional treatment of him while
in confinement and did not “challenge the very fact or duration of
the confinement itself”);
see also, e.g.,
Quintanilla v. Bryson, 730
F. App’x 738, 742 (11th Cir. 2018) (reversing a district court’s dis-
missal for failure to state plausible claims of relief as to an in-
mate’s challenge to his solitary confinement as violating the
Eighth and Fourteenth Amendments brought in a § 1983 com-
plaint). Similarly, the relief granted by the district court—
ordering Melendez released into GP housing from CM—did not
result in altering the legality or duration of Melendez’s term of
confinement. We therefore find that § 1983 is a proper vehicle for
the Eighth Amendment claim Melendez raises.
Finally, Defendants briefly argue that the injunction vio-
lates the separations of powers and federalism. Defendants again
point to their interest in prison management security and that
prison administrators “should be accorded wide-ranging defer-
ence in the adoption and execution of policies and practices.”
See
Mosley, 966 F.3d at 1273–74. They assert that the district court
acted as a “super-warden” by sidestepping their expertise and
judgment and requiring them to release Melendez to GP and that
the injunction “hamstrings” their officials by “seeking a permis-
sion slip from the district court” if they wish to change Melen-
dez’s housing status.
See Swain v. Junior, 958 F.3d 1081, 1090
(11th Cir. 2020).
We find this argument without merit. Federal courts have
the authority to eliminate and remedy unconstitutional condi-
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 61 of 63

-- 61 of 63 --

62 Opinion of the Court 21-13455
tions, e.g., those constituting cruel and unusual punishment un-
der the Eighth Amendment.
See Jones v. Diamond, 594 F.2d 997,
1015 (5th Cir. 1979);
Brown v. Plata, 563 U.S. 493, 511 (2011) (“If
government fails to fulfill this obligation, the courts have a re-
sponsibility to remedy the resulting Eighth Amendment viola-
tion.”);
see also e.g.,
Thomas, 614 F.3d at 1318–22. “Courts must
be sensitive to the State’s interest in punishment, deterrence, and
rehabilitation, as well as the need for deference to experienced
and expert prison administrators faced with the difficult and dan-
gerous task of housing large numbers of convicted criminals.”
Brown, 563 U.S. at 511. Nevertheless, we “must not shrink from
[our] obligation to ‘enforce the constitutional rights of all “per-
sons,” including prisoners.’”
Id. (quoting
Cruz v. Beto, 405 U.S.
319, 321 (1972)). As we have already explained, the district court
did not err in concluding that, at the preliminary injunction stage,
Melendez’s Eighth Amendment claim had a substantial likelihood
of success on the merits. And, contrary to Defendants’ assertion,
the injunction does not hamstring their officials by requiring them
to seek permission from the district court to move Melendez back
to CM status. Again, as the district court explained, Defendants
are entitled to impose disciplinary measures on Melendez in ac-
cordance with FDC policies and may initiate the ICT process to
place Melendez in CM should his future conduct warrant it.
* * * *
Accordingly, under our deferential standard of review at
the preliminary injunction stage, we conclude that the district
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 62 of 63

-- 62 of 63 --

21-13455 Opinion of the Court 63
court did not abuse its discretion in entering the second prelimi-
nary injunction.
IV. CONCLUSION
For the foregoing reasons, we dismiss Defendants’ appeal
of the district court’s first preliminary injunction in case number
21-13455, and we affirm the district court’s second preliminary
injunction in case number 22-10306.
DISMISSED IN PART, AFFIRMED IN PART.
USCA11 Case: 21-13455 Date Filed: 04/15/2022 Page: 63 of 63

-- 63 of 63 --