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Vigil v. Clarke

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

September 27, 2016

HAROLD CLARKE, ET AL., Defendants.

          Francisco Vigil, Pro Se Plaintiff

          Nancy Hull Davidson, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants.


          James P. Jones United States District Judge

         The plaintiff, Francisco Vigil, a state prison inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983. Vigil asserts constitutional challenges to certain classification procedures that allegedly prevented him from earning his release from the highly restrictive segregation conditions at Red Onion State Prison (“Red Onion”) in Pound, Virginia. He seeks monetary damages and injunctive relief.[1] After review of the record, I conclude that the defendants' Motion for Summary Judgment must be granted.


         Vigil is serving a Colorado state court sentence of life without parole for a conviction of first degree murder, with additional sentences for convictions for kidnapping and assault. Vigil was one of ten offenders received by Red Onion from the Colorado Department of Corrections (“CODOC”) on June 29, 2014.

         Red Onion and its sister facility, Wallens Ridge State Prison (“Wallens Ridge”), house all Virginia Department of Corrections (“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 9-34, ECF No. 29-1.) This OP 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, until they reach the SM-SL6 stage, are restrained in handcuffs and shackles and escorted by two officers whenever they leave their cells. Per policy, they receive meals in their cells (the same types of meals that inmates in general population units receive), receive not less than three showers per week, and have out-of-cell recreation for one hour, five days per week. These inmates generally can have two twenty-minute phone calls per month, one one-hour, non-contact visit per week, limited use of radio and television, and limited commissary purchases. They can possess at least two library books per week, receive and send mail, and possess legal and religious materials. The privileges an IM inmate may earn under OP 830.A at IM-1 and IM-2 include more library books per week, more commissary purchases, more non-contact visits or telephone calls, increased TV time and channels, and even limited job possibilities. An inmate progressing to SM-1 or SM-2 can earn even greater privileges.

         IM or SM inmates who do not meet the standards for discipline, responsible behavior, self-improvement, and programming can be moved back to a lower step. 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 participate in the step-down program may also be grounds for a reduction in his step assignment ...

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