United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema Judge
the Court are the parties1 cross-motions for summary
judgment. Al! of the four plaintiffs in this civil action
have been convicted of capital murder, sentenced to death,
and are awaiting execution of that sentence while confined in
a single unit ("death row") at Virginia's
Sussex I State Prison ("SISP"). Plaintiffs claim
that the conditions of their confinement at SISP at the time
they filed this civil action violated the Eighth Amendment.
In the intervening period between when plaintiffs'
Complaint was filed and the motions for summary judgment were
filed, defendants made several significant changes to those
conditions, resulting in new conditions of confinement that
plaintiffs concede do not violate the Eighth Amendment.
Nevertheless, plaintiffs argue that they are entitled to an
injunction, the issuance and scope of which would be governed
by the Prison Litigation Reform Act of 1995 ("the
PLRA"), to ensure that defendants do not reinstate the
allegedly unconstitutional conditions that were in place when
plaintiffs filed their Complaint. Defendants do not concede
that the previous conditions violated the Constitution and
argue that given the current conditions, there is no reason
to either decide the constitutional question or to impose an
injunction. The motions have been fully briefed and argued.
For the reasons that follow, defendants' motion will be
granted and plaintiffs' motion will be denied.
are four individuals currently incarcerated on death row at
SISP. Mem. in Supp. of Defs.' Mot. for Summ. J.
[hereinafter Defs.' Br.], Ex. 1, Aff. of Harold C. Clarke
[Dkt. No. 110-1] 1¶ 10, Dec. 21, 2015 ("Clarke
Aff.") Plaintiff Mark Lawlor ("Lawlor")
has spent more than four years on death row, plaintiff Thomas
Porter ("Porter") has spent more than eight years
on death row, plaintiff Ricky Gray ("Gray") has
spent more than nine years on death row, and plaintiff
Anthony Juniper ("Juniper") has spent more than ten
years on death row. Mem. in Supp. of Pls.' Mot. for Summ.
J. [hereinafter Pls.' Br.], Pls.' Statement of
Undisputed Material Facts [Dkt. No. 115] ¶ 1, Dec. 21,
2015 ("Pls.' SOF"); see also Resp. in
Opp'n to Pls.' Mot. for Summ. J. [hereinafter
Defs.' Opp'n], Contested Factual Representations &
Statement of Genuine Issues [Dkt. No. 125], Jan. 11, 2016
("Defs.' Resp. to Pls.' SOF") (not
contesting these facts).
initially filed a three-count Complaint against defendants
Harold W. Clarke ("Clarke"), who has been the
director of the Virginia Department of Corrections
("VDOC") since 2010, and Keith Davis
("Davis"), who was the warden of SISP until May 11,
2015,  in their official capacities and pursuant
to 42 U.S.C. § 1983, claiming that the conditions of
their confinement on death row and the procedures for placing
them there violated the Eighth and Fourteenth Amendments.
See Compl. [Dkt. No. 1] ¶¶ 3-4, Nov. 20,
2014; Answer [Dkt. No. 49] ¶¶ 3-4, May 5. 2015;
see also Clarke Aff. ¶ 53. Specifically, in
Count I of their Complaint, plaintiffs alleged that
defendants had denied them due process of law, Count II
alleged that defendants denied plaintiffs equal protection of
the law, and Count III alleged that defendants violated the
Eighth Amendment by subjecting plaintiffs to cruel and
unusual punishment. Compl. ¶¶ I4-16.
litigation is related to an earlier civil action brought by a
former Virginia death row inmate, Alfredo Prieto, who claimed
that his "automatic and permanent placement in the
restrictive conditions of confinement prevailing on death row
violated his rights under the Due Process Clause of the
Fourteenth Amendment." Prieto v. Clarke. No.
1:12cvl 199, 2013 WL 6019215, at *3 (E.D. Va. Nov. 12, 2013),
rev'd. 780 F.3d 245 (4th Cir. 20151 cert,
dismissed, 136 S.Ct. 319 (2015). Finding that the
"dehumanizing conditions" on Virginia's death
row were "undeniably extreme, " Id. at
*6-8, and that automatically imposing those conditions on
death row inmates violated the Fourteenth Amendment, this
Court granted summary judgment to Prieto and ordered that the
defendants either provide an "individualized
classification determination" to Prieto or improve the
conditions on death row, "if only slightly."
Id. at * 10-11. Following that decision, the VDOC
granted Prieto additional privileges not extended to the
other death row inmates, which spurred plaintiffs' equal
protection claim in this action. Compl. ¶¶ 8-11,
split panel decision, the Fourth Circuit reversed the
Prieto ruling, although in doing so the court
acknowledged that the conditions under which Prieto was
confined were "undeniably severe." Prieto v.
Clarke, 780 F.3d 245, 254-55 (4th Cir. 2015), cert,
dismissed, 136 S.Ct. 319 (2015). Furthermore, in his dissent,
Judge Wynn found that Prieto had a liberty interest in
avoiding "the highly restrictive conditions of
Virginia's death row, " which "deprived
[Prieto] of almost all human contact" and
"stimuli." Id. at 255-56 (Wynn, J.,
dissenting). In light of the majority decision in
Prieto, the parties in this action stipulated to the
dismissal of the Fourteenth Amendment due process and equal
protection claims, leaving only the Eighth Amendment claim in
Count III for litigation. Stipulation of Voluntary Dismissal
Pursuant to F.R.C.P. 41(a)(1)(A)(ii) [Dkt. No. 30], Mar. 19,
2015 ("Stipulation of Dismissal").
this civil action began, the conditions on death row were
essentially identical to those described in the
Prieto decision. See Pls.' Br., Ex. 7,
Report of Michael L. Hendricks, Ph.D., ABPP [Dkt. No. 115-9]
7, Dec. 21, 2015 (-'Hendricks Report") ("The
District Court's description of the conditions of
Virginia's death row in its Prieto decision
captured the essence of Virginia's death row and lines up
with my observations."); see also Prieto, 2013
WL 6019215, at * 1 (describing the conditions on death row).
Death row inmates at S1SP are housed in a "pod"
that is separate from the ones that house the general
population of the prison. Clarke Aff. ¶¶ 9,
see also Defs.' Br., Ex. 23, Va. Dep't of
Corr. Operating Procedure [Dkt. No. 122-2] III, Dec. 23, 2015
("OP 460A") (defining the "Death Row
Unit" as "[a] separate housing unit set aside for
the custodial control and management of offenders under the
sentence of death"). The VDOC defines the pod as a kind of
"segregated" housing but does not use the term
"solitary confinement" or characterize any of its
facilities or housing as "solitary confinement."
¶¶ 8-9 (internal quotation marks omitted). The
death row pod consists of two tiers, each holding 22 cells
and three showers. Id. If 11. Each cell measures 71
square feet, with a 10.5-foot-high ceiling. Id.
Â¶ 12. The cells "are comparable in size"
to those shared by general population inmates, but death row
inmates do not share cells and are not housed in adjacent
cells, Id., ¶¶ 12-13; Compl. ¶ 5; Answer
Â¶ 5. Each cell has a bed, "a small
'desk' adjacent to the bed, and a commode/sink
combination." Hendricks Report 8.
cells have windows that are 5 inches high by 41.5 inches
long. Clarke Aff. ¶ 14. Even though the windows are
covered in wire mesh for security reasons, they do allow some
natural light to come through and inmates can see out of
them. Id. The cell lights turn on at 5:30 a.m. and
stay on until 10:30 p.m., at which time a "low-level
might light'" is turned on "for security
purposes and for the safety of the inmate." Id.
¶¶ 16-17. Each cell door has a tray slot as well as
a "rectangular in-set window" from which inmates
can look into the pod from their cells. Id. ¶
15. The cell doors are not sound-proof, and inmates do
attempt to communicate with other inmates while in their
cells, although the parties disagree over how effectively
inmates can communicate. See id.; Hendricks
Report 7; see also Defs.' SOF¶ 14;
Pls.' Resp. to Defs.' SOF *¶ 14.
Plaintiffs may have a television and a compact disc player in
their cells, and they may request "materials from the
law library and the regular library" in addition to
ordering "approved publications" to read. Clarke
Aff. ¶¶ 41, 45.
this lawsuit was filed, VDOC Operating Procedure 460A
("OP 460A"), effective March 1, 2010, and the SISP
Institutional Rules and Regulations for Offenders, effective
February 3, 2010, governed the daily lives of the death row
inmates, ¶¶ 21-22. Under these procedures and
regulations, inmates were allowed one hour of outdoor
recreation, five days a week, which they spent in individual
enclosures "made of steel interlocking mesh" that
measured 7.9 feet wide by 20 feet long and 10 feet high.
Id., ¶ 23; see also OP 460A
IV.J. The enclosures lacked any exercise
equipment and inmates were prohibited from using adjacent
enclosures; nonetheless, some inmates coordinated exercises
with one another from their individual enclosures. Defs.'
SOF ¶¶ 19-20; Pls.' Resp. to Defs.' SOF
¶¶ 19-20. Inmates were also permitted to leave
their cells for a ten-minute shower a minimum of three times
a week, OP 460A IV.L., and two inmates, Porter and Gray, were
allowed out of their cells to perform their respective
institutional jobs as the houseman and the barber for death
row. Clarke Aff. ¶¶ 26-28.
were permitted to have non-contact visitation on weekends and
state holidays, OP 460A IV.N, and could request contact
visitation with immediate family members if "extreme
circumstances exist[ed], " but the Warden had discretion
to grant or deny such requests. OP 460A IV.N.2; see
also Clarke Aff. ¶ 51. They also had access to
wireless telephones that could be brought to their cell and
used seven days per week, between 8:00 a.m. and 9:30 p.m.,
with each call generally limited to 20 minutes. Clarke Aff.
¶¶ 43-44; see also Defs.' Br., Ex. 7,
Aff. of Joycetine Boone [Dkt. No. 110-7] ¶ 13, Dec. 21,
2015 ("Boone Aff.") ("[Offenders were given
virtually unlimited access to the
these limited interactions with fellow inmates and the
outside world, death row inmates had contact with prison
staff, including mental health counselors, and could request
to have contact visitation with their attorneys on weekdays
from 8:00 a.m. to 3:00 p.m., for approximately one hour at a
time. Id. ¶¶ 47-48; see also OP
460A IV.1. Corrections officers walked through the death row
pod performing security checks every 30 minutes, medical
personnel made rounds through the pod twice a day, nurses
came through the pod twice a day to distribute medications,
the mental health practitioner visited once a week, each
inmate's case counselor visited the pod daily, and
inmates could request additional medical or mental health
care from those practitioners. Id. ¶¶
30-36; see also Lyons Aff. ¶ 4; Zook Aff.
inmates could request meetings with the chaplain and other
"[a]pproved religious volunteers." Id.
¶¶ 38-40. Although death row provided these
minimal opportunities for human interaction, plaintiffs spent
"almost alt of [their] time alone1'-approximately 22
to 23 hours a day in their cells. Prieto, 2013 WL 6019215, at
and other VDOC officials maintain that these policies were
necessary due to the heightened security risks posed by death
row inmates and argue that the impact of such policies on
plaintiffs has not been constitutionally unacceptable. For
example, A. David Robinson ("Robinson"), the
VDOC's Chief of Corrections Operations, avers that
"[w]hen devising policies pertaining to death row
inmates, the nature of their underlying crime, as well as the
sentence they are facing, necessitates certain
precautions" and "the risk of escape or violence
must... be taken into account, " particularly because
"[t]hese offenders have already shown themselves to be
capable of murder." Defs.' Br., Ex. 2, Aff. of A.
David Robinson [Dkt. No. 110-2] ¶ 23, Dec. 21, 2015
("Robinson Aff"). Robinson highlights the escape of
six prisoners that occurred when Virginia's death row was
located at Mecklenburg Correctional Center, and he attributes
the lack of similar incidents at SISP to the policies and
regulations that were in place until 2015. Id.
¶¶ 16-20. Similarly, Zook describes the murder of
two inmates by two others during group recreation at a
Florida prison where he worked as "illustrative of what
can happen when death-row offenders are allowed to congregate
in larger groups." Zook Aff. ¶ 18. Clarke avers
that he too is "ever-cognizant. . . of the security risk
posed by convicted murderers who are awaiting the imposition
of a death sentence" and particularly of the
"heightened risk of attempted escape" among that
population. Clarke Aff. ¶ 63.
addition to justifying the pre-2015 conditions as necessary
security precautions, defendants also contend that those
conditions had no harmful effects on plaintiffs. In multiple
affidavits submitted by defendants, VDOC officials aver that
they have not witnessed any "mental deterioration"
or other mental health problems among plaintiffs during their
incarceration under the pre-2015 conditions. See,
e.g., Zook Aff. ¶ 19.
defendants' belief that the pre-litigation conditions
were not harmful to plaintiffs and were necessary to ensure
the facility's security, Clarke began considering
changing some of those conditions as early as 2011. Clarke
Aff. 1¶ 57. Clarke avers that he chose not to move
forward with any changes while the Prieto litigation
was pending, but then decided in mid-2014 to implement
changes and continued in that effort even after the instant
litigation began on November 20, 2014. Id. ¶
58. Zook and Clarke eventually approved a number of interim
rales and regulations for death row in August 2015,
Id. ¶ 59, and then moved to stay these
proceedings for 90 days while they implemented the new
regulations, with the additional request that any remaining
issues at the end of those 90 days be referred for mediation.
Defs.' Mot. for Stay & to Refer Remaining Issues to
Mediation [Dkt. No. 84], Aug. 10, 2015. The plaintiffs did
not oppose the motion, and the Court granted the requested
relief. Order [Dkt. No. 88], Aug. 12, 2015.
interim regulations provided for a number of significant
changes to plaintiffs' conditions of confinement. See
generally, Mem. in Supp. of Defs.' Mot. for Stay &
to Refer Remaining Issues to Mediation [hereinafter Mot. for
Stay], Ex. 1, Aff. of Harold Clarke [hereinafter Clarke Aff.
2], Ex. A, Interim Offender Rules and Regulations - Death Row
[Dkt. No. 85-1] Aug. 10, 2015 ("Interim
Regulations"). With respect to visitation, the interim
regulations allowed death row inmates to "have contact
visits with immediate family members" every Friday for 1
hour and 30 minutes, " and "non-contact visits with
any approved visitor on Saturdays, Sundays, and holidays for
1 hour and 30 minutes." 14 at 3. The interim regulations
allowed inmates to shower seven days a week, for fifteen
minutes each time, and inmates were permitted to engage in
daily congregate recreation within the death row pod
"with a maximum of three other offenders" for at
least an hour at a time. Id at 4.
implement this "in-pod" recreation, the VDOC began
"constructing a multi-purpose day room" in the
death row pod with tables on which inmates could play games,
several telephones and a television, and a J-PAY kiosk from
which inmates could send email and purchase books and movies.
Clarke Aff. 2 ¶ 11. The VDOC planned to "us[e] the
day room for congregate religious services, behavioral
programming, and additional employment opportunities"
for the death row inmates. Id. With respect to these
additional employment opportunities, the VDOC immediately
created an additional job cleaning the pod and showers, and
Clarke averred that the VDOC was working to create another
job that would involve "wrapping sporks for offender
meals." Id ¶ 12.
addition to the new opportunities for in-pod recreation and
congregation, the interim regulations provided for increased
outdoor recreation, permitting inmates to engage "in
outdoor recreation five days per week for a minimum of 1 hour
and 30 minutes per day." Interim Regulations 4. Although
the regulations themselves did not refer to congregate
outdoor recreation, Clarke averred that the VDOC was in the
process of constructing a "covered outdoor recreation
yard specifically for Death Row offenders, " which would
be "separated into two sections, each" with "a
basketball court and an area for stationary exercise
equipment, " and would allow for a maximum of four death
row inmates to congregate in each section of the yard,
unrestrained, "for a minimum of one hour and thirty (30)
minutes per day, five (5) days per week." Clarke Aff. 2
the promulgation and partial implementation of these interim
regulations, the parties participated in a settlement
conference, but failed to resolve the action. Joint Status
Report [Dkt. No. 102], Nov. 13, 2015. Accordingly, the
parties filed the pending cross-motions for summary judgment.
Since the filing of those motions, the parties have provided
multiple updates regarding the progress of the policy
changes. These submissions demonstrate that defendants have
finalized the interim regulations and have implemented most,
if not all, of the promised changes, at significant expense.
Zook approved finalizing the interim regulations as Operating
Procedure 425.A ("OP 425.A") in May 2016, and OP
425.A was signed into effect by the VDOC's Regional
Operations Chief on June 2, 2016. Resp., Ex. A, Aff. of David
Zook [Dkt. No. 161-1] ¶ 20, June 3, 2016 ("Zook
Aff. 3"); see also Resp., Ex. 8, Va. Dep't
of Corr. Operating Procedure 425.A [Dkt. No. 158], June 3,
2016 ("OP 425.A"). Pursuant to OP 425.A, death row
inmates who are in compliance with grooming and other
standards "will receive at least 1 Â½ hours of outside recreation, 5 days a week and
1 hour of [in-]pod recreation per day." OP
425.A.V.C.I. During in-pod recreation, groups of up
to four inmates may ...