Breaking News
Petitions of the week

A 27-year solitary confinement and a dispute about discharging settlement payments in bankruptcy

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether a prisoner’s 27-year period in solitary confinement violates either the Eighth Amendment or the 14th Amendment, and whether a settlement can include a provision in which a debtor agrees that any payments are non-dischargeable in bankruptcy.

Constitutional challenges to a 27-year solitary confinement

Dennis Wayne Hope has been in solitary confinement for 27 years since 1994. In Hope v. Harris, Hope – who now suffers hallucinations and thoughts of suicide – raises two constitutional issues for the justices. First, he argues that his confinement violates the Eighth Amendment’s prohibition on cruel and unusual punishments. The U.S. Court of Appeals for the 5th Circuit dismissed Hope’s case on the ground that solitary confinement does not offend the Eighth Amendment, including at Hope’s length. Hope argues that this approach conflicts with that of five other U.S. courts of appeals, for which a prolonged solitary confinement can sometimes infringe on the Eighth Amendment’s protection. Hope also maintains that long-term solitary confinement was “unheard of at the Founding” and largely began with his “generation of prisoners.”

Second, Hope argues that the twice-yearly hearings in which prison administrators review his case violate the due process clause of the 14th Amendment. Prison administrators originally placed Hope in solitary confinement following an escape attempt, but after 11 years a committee of prison security personnel determined that he no longer represented an “escape risk.” In his petition, Hope maintains that committee members “merely rubber-stamp” his ongoing confinement, without reading or discussing his file. The 5th Circuit again disagreed and dismissed because in its view, the hearings satisfied due process. Judge Catharina Haynes dissented, in part because “if Hope is correct that the forty-eight SCC hearings were a ‘sham,’ then it would be as if he never attended any hearings at all.”

Settlement provisions on bankruptcy non-dischargeability

Speech & Language Center, LLC v. Horizon Blue Cross Blue Shield of New Jersey addresses whether parties to a civil settlement can agree that the payments will not be dischargeable in bankruptcy. In a purported settlement, Horizon Blue Cross Blue Shield of New Jersey moved to compel the Speech & Language Center, LLC (along with its principal, Chryssoula Marinos-Arsenis) to agree that in the event of Arsenis’ bankruptcy “prior to payment in full of the obligation to Horizon,” Arsenis “agrees not to contest the non-dischargeability of any remaining settlement payment obligation owed to Horizon.” Though Arsenis and the center contested the non-dischargeability provision as contrary to federal bankruptcy law, the New Jersey trial court compelled them to sign Horizon’s agreement. On an appeal from Arsenis and the center, a New Jersey intermediate appellate court declined to rule on the issue, which the parties could dispute in bankruptcy court if Arsenis ever filed for bankruptcy. The New Jersey Supreme Court heard oral argument on the matter, but dismissed the case as improvidently granted. Before the U.S. Supreme Court, the center maintains that the issue was relevant at the settlement stage because if such provisions are legal (an issue, the center says, that divides lower courts), then a debtor may be dissuaded from ever even seeking bankruptcy relief in the first place.

These and other petitions of the week are below:

Hope v. Harris
Issues: (1) Whether decades of solitary confinement can, under some circumstances, violate the Eighth Amendment, as at least five circuits have held, or whether solitary confinement can never run afoul of the Eighth Amendment, as the U.S. Court of Appeals for the 5th Circuit held below and three other circuits have held; and (2) whether the due process clause requires hearings where prison officials are open to the possibility of a different outcome, as at least seven circuits have held, or whether a hearing that rubber-stamps a prisoner’s placement suffices, as the 5th Circuit held below.

Asner v. Hengle
Issue: Whether a federal court can refuse to enforce the delegation clause of an arbitration agreement on the ground that a choice-of-law provision applicable to the arbitration agreement as a whole prospectively waives federal rights.

Treppa v. Hengle
Issues: (1) Whether a court can invalidate an agreement to have an arbitrator resolve questions of arbitrability (a “delegation clause”) based on the court’s interpretation of a separate choice-of-law provision; and (2) whether sovereign immunity bars private plaintiffs from suing tribal government officials, in their official capacities, for alleged violations of state law.

Molina Healthcare of Illinois, Inc. v. Prose
Issues: (1) Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases to plead details of the alleged false claims; and (2) whether a request for payment that makes no specific representations about the goods or services provided can be actionable under an implied false certification theory.

Speech & Language Center, LLC v. Horizon Blue Cross Blue Shield of New Jersey
Issue: Whether the parties to a civil settlement can agree that the payments required under the agreement are not dischargeable in bankruptcy.

Recommended Citation: Andrew Hamm, A 27-year solitary confinement and a dispute about discharging settlement payments in bankruptcy, SCOTUSblog (Mar. 4, 2022, 4:44 PM),