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Porter v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

July 8, 2016

THOMAS PORTER, et al., Plaintiffs,
HAROLD W. CLARKE, et al., Defendants.


          Leonie M. Brinkema Judge

         Before 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.


         Plaintiffs 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.")[1] 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.[2] 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).

         Plaintiffs 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, [3] 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.[4]

         This 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).[5] 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, 15.

         In a 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).[6] 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").[7]


         When 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, 11;[8] 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").[9] 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. ¶ 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 ¶ 5. Each cell has a bed, "a small 'desk' adjacent to the bed, and a commode/sink combination."[10] Hendricks Report 8.

         The 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.[11] 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.

         When 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.[12] 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.

         Inmates 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.[13] 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 telephone.").[14]

         Besides 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.[15] Id. ¶¶ 30-36; see also Lyons Aff. ¶ 4; Zook Aff. ¶ 21.

         Additionally, inmates could request meetings with the chaplain and other "[a]pproved religious volunteers." Id. ¶¶ 38-40.[16] 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 * 1.

         Defendants 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.[17] 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.

         In 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.

         Despite 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.[18] 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.

         The 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.

         To 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.

         In 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 ¶ 10.

         Following 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.

         Specifically, 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 ½ hours of outside recreation, 5 days a week and 1 hour of [in-]pod recreation per day." OP 425.A.V.C.I.[19] During in-pod recreation, groups of up to four inmates may ...

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