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Faison v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

September 26, 2016

MILTON D. FAISON, Plaintiff,
HAROLD CLARKE, ET AL., Defendants.

          Milton D. Faison, Pro Se Plaintiff; Nancy Hull Davidson, Office of the Attorney General, Richmond, Virginia, for Defendants.


          James P. Jones United States District Judge.

         The plaintiff, Milton D. Faison, a Virginia prison inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983. Faison asserts constitutional challenges to certain classification procedures that have allegedly prevented him from earning his release from the highly restrictive segregated confinement conditions at Red Onion State Prison (“Red Onion”). After review of the record, I conclude that the defendants' Motion for Summary Judgment must be granted.


         Faison, currently incarcerated at Red Onion, is serving a term of confinement in the custody of the Virginia Department of Corrections (“VDOC”).[1]He was classified to administrative segregation at Red Onion in early 2015.

         Red Onion and its sister facility, Wallens Ridge State Prison (“Wallens Ridge”), house all VDOC “Level S” inmates. Level S is reserved for inmates who must be managed in a segregation setting.[2] Under current policies, once a VDOC inmate is classified as Level S, officials transfer him to one of these facilities, where he may participate in the Segregation Reduction Step-Down Program designed to help him progress in stages toward a return to the general prison population. (Operating Procedure (“OP”) 830.A, at 6-19, ECF No. 17-1.) The version of this policy that Faison is challenging became effective on February 18, 2013, with the stated purpose to provide “established procedures for incentive based offender management which will create a pathway for offenders to step-down from Security level S to lower security levels in a manner that maintains public, staff and offender safety.” (OP 830.A(I).) The step-down program is goal-oriented: when inmates exhibit positive behaviors, such as anger management and respect, and succeed in completing the established goals in each stage of the procedure, they are rewarded by moving to the next step and earning its additional privileges.

         As described in OP 830.A(III), each newly classified Level S inmate is assessed and assigned to the appropriate privilege level within Level S: intensive management (“IM”), special management (“SM”), or the reentry unit (reserved for inmates within two years of release). An inmate is assigned to IM status if evaluators determine that he has “the potential for extreme and/or deadly violence, ” as indicated by a history of violent disciplinary infractions against staff or other inmates, or an “extensive criminal history and lifestyle that has escalated so that extreme/deadly violence has become a behavior characteristic.” (OP 830.A(III).) The policy expressly states that “[t]he potential for extreme or deadly violence is not eliminated despite the offender's daily institutional adjustment even when providing more than a year of compliant, polite, and cooperative behavior and attitude.” (Id.)

         Alternatively, an inmate may be placed in IM status because of his “routinely disruptive and threatening pattern of behavior and attitude” or because he is “incarcerated for a notorious crime that puts [him] at risk from other offenders.” (Id.) On the other hand, an inmate is assigned to SM status if evaluators find that he has a history of “repeated disruptive behavior at lower level facilities, . . . fighting with staff or offenders, and/or violent resistance” that harmed staff or other inmates, but “without the intent to invoke serious harm, . . .

         kill, or [cause] serious damage to the facility.” (Id.)

         Inmates are further sub-classified under OP 830.A as follows, starting with IM-0, the most restrictive status, and ending with the general population, the least restrictive:

Intensive Management (IM):
Special Management (SM):
Step-Down-Level VI General Population
Structured Living-Phase 1 and Phase 2
Security Level V General Population

         The step-down program in OP 830.A is a so-called cognitive program that includes pro-social goals and requires the inmate to complete a workbook set called the Challenge Series, remain infraction free, meet responsible behavior goals, and participate in self-improvement and education programs. When an inmate meets the goals designated for a step, he may be advanced to the next step and receive the additional privileges assigned to it.

         All Level S inmates in the IM and SM categories are housed in single cells and are not permitted out of their cells unrestrained. They have limited out-of-cell activities and privileges. As an inmate meets the standards for discipline, responsible behavior, self-improvement, and programming of his step assignment and progresses from SM-0 to SM-1 or SM-2, or from IM-0 to IM-1 or IM-2, he will earn greater privileges. An IM or SM inmate who does not meet the goals of his current step assignment can be moved back to a lower step and have his privileges reduced accordingly. Some inmates assigned to a lower step may be required to start over with the Challenge Series; they must then work with treatment staff to complete its exercises again to achieve positive changes in thought processes and social skills. An inmate's refusal to ...

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