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Delk v. Younce

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

March 14, 2017

STEVEN DELK, Plaintiff,
v.
MICHAEL C. YOUNCE, et al., Defendant(s).

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE

         Steven Delk, an inmate proceeding pro se, filed this action under the Civil Rights Act, 42 U.S.C. § 1983, and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 to 2000cc-5. Delk sued administrators in the Virginia Department of Corrections (“VDOC”) and officials at Red Onion State Prison (“Red Onion”) contending, among other things, that he had been classified to long-term segregation without due process, where he was subjected to unconstitutional living conditions and suffered a substantial burden on the free exercise of his religious dietary beliefs. After review of the record, I conclude that Defendants' motion for summary judgment must be granted.

         I. BACKGROUND

         A. Long-Term Segregation and the Step-Down Program

         Red Onion and Wallens Ridge State Prison (“Wallens Ridge”) house all VDOC Security Level S (“SLS”) inmates, those who must be managed in a long-term segregation setting.[1]Under current policies, once a VDOC inmate is classified as SLS, officials transfer him to one of these facilities, where he may participate in the Segregation Reduction Step-Down Program set out in Operating Procedure (“OP”) 830.A. (OP 830.A, at 28-47, docket no. 133-9). This version of the step-down procedure 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.)

         Each newly classified SLS inmate is assessed and assigned to the appropriate privilege level: intensive management (“IM”), special management (“SM”), or the reentry unit (reserved for inmates within two years of release). (OP 830.A, § III.) 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 or SM-0, the most restrictive statuses, and ending with the general population, the least restrictive.

Intensive Management (IM):
IM-0
IM-1
IM-2
IM-SL6
Special Management (SM):
SM-0
SM-1
SM-2
SM-SL6
Step-Down-Level 6 General Population Structured Living-Phase 1 and Phase 2 Security Level 5 General Population

         The step-down program in OP 830.A is a so-called cognitive program that involves meeting pro-social goals and requires the inmate to complete a seven-workbook set called the Challenge Series, remain infraction free, exhibit responsible behavior, 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. When an SM-0 inmate makes sufficient progress toward the goals of that step, he will be advanced to SM-1 or SM-2, where he will be permitted additional privileges, including use of electronics and the chance to apply for an in-pod job.

         While assigned to any of these segregation levels, the inmate's classification status will be periodically reviewed by the Institutional Classification Authority (“ICA”). Members of the Unit Management Team, a multi-disciplinary group of staff who work in the housing units, track and rate each inmate's progress toward the goals of his assigned step. They rate his behavior every week as poor, acceptable, or good in each of several categories, such as personal hygiene, standing for count, and respect. Counselors rate the inmate's program participation every week as incomplete, complete, or positive effort. Officers in each of these groups are encouraged to communicate with inmates about these ratings - to acknowledge positive performance and motivate improvement where needed.

         In addition to Unit Management Team review of an inmate's classification status, certain classification decisions are also reviewed by a Dual Treatment Team made up of officials from both Red Onion and Wallens Ridge, by the wardens of the two institutions, or by the VDOC regional operations chief. In addition to this multi-level review scheme, “[a] team external to [Red Onion and Wallens Ridge] will perform an annual review of each [SLS] offender's case.” (OP 830.A, § IV, ¶ K.1.a.) This review includes a reassessment of whether the inmate continues to meet the criteria for the IM or SM path to which he has been assigned. According to OP 830.1, § IV, ¶ G, all classification decisions may be appealed through the Offender Grievance Procedure, to which SLS inmates have access.

         All SLS inmates in the IM and SM categories are housed in single cells. When any SLS inmate leaves his cell, he must undergo a visual strip search and be restrained in handcuffs and shackles. In full restraints, he is then escorted by two officers at all times to recreation, to the shower, or to medical appointments. Outdoor recreation consists of being locked in a fenced, cage-like area to walk or do calisthentics.

         On the other hand, the segregation cells provide living conditions approximately the same as those provided to general population inmates, and the cell design permits inmates to converse with and be observed by staff members. Per policy, SLS inmates receive meals in their cells (the same number and types of meals that inmates in general population units receive), are permitted to shower and shave not less than three times per week, and have out-of-cell recreation for one hour, up to six days per week. They have the same mail regulations and privileges as inmates in other housing assignments, receive clean clothes and bed linens, and have access to medical and mental health care. They are allowed visitation, use of a telephone, access to legal services and library books; they may possess items of personal property (including religious materials) and may order items from the prison commissary.

         When the SM inmate completes the Challenge Series and meets the goals for SM-2, he may be decreased from SLS to Security Level 6 (“SL6”). At this point, officials assess each inmate and assign him to one of three SL6 step-down pods geared to safely reintroduce him in phases into a social environment to interact with other inmates and test his readiness for possible transfer to Level 5 and, eventually, to other non-segregation settings. Inmates in SM-SL6 Phase 1 are still in single cells, but they are permitted to leave their cells unrestrained for movement to the shower and recreation and, gradually, to participate in the Thinking for a Change curriculum with other inmates in groups of up to fifteen participants. Inmates in SM-SL6 Phase 2 have cell mates, are unrestrained for showers and recreation, have outside recreation with other inmates for an hour, twice a week, and can walk to meals with other inmates to eat their meals together in the dining hall. If the inmate completes the goals in SL6, he may then be reduced to Security Level 5 and be placed in a general population setting.

         B. Delk's Classification History

         Delk arrived at Red Onion on July 16, 2012 and was assigned to the general population. On March 1, 2013, he was assigned to segregation, because he had received a disciplinary charge for possession of a weapon. On March 4, the ICA recommended that Delk remain in segregation pending the outcome of the disciplinary proceeding. On April 3, the ICA noted that Delk had received five new institutional infractions since March 1, 2013: three charges for possessing a weapon, one charge for possessing a razor blade, and one charge for possessing tobacco. Accordingly, the ICA recommended an increase for Delk from Security Level 5 to SLS and a decrease in his good time earning rate from Level 1 (earning the most available good time) to Level 4 (earning no good conduct time).

         At an informal review on June 20, the ICA recommended that Delk be assigned to the Special Management pathway, SM-0, based upon his recent disciplinary history and a need for a longer period of stable adjustment. SM-0 inmates are those who exhibit inappropriate behavior or choose not to participate in the step-down programming. The ICA reviewed Delk's housing status on September 19, 2013, and recommended that he remain at SM-0 because he needed a longer period of stable adjustment. At reviews on December 2, February 28 and May 21, 2014, the ICA recommended that Delk remain at SM-0 because of his nonparticipation in programs and a continued need for stable adjustment.

         On June 5, 2014, during Delk's annual review, the ICA reviewed his housing status and goodtime earning rate. The ICA noted that Delk had not held a work assignment or participated in treatment programming. Therefore, the ICA recommended that Delk remain an SLS inmate and continue at Level 4, earning no good time. He remained at SM-0 through regular reviews in August and November, 2014, and February and May 2015, based on nonparticipation in step-down programming. At his annual review on June 26, 2015, the ICA recommended that Delk remain an SLS inmate, again noting his failure to complete programming or hold a job assignment. Based on these same factors, at reviews in July and October 2015, and January and April 2016, the ICA recommended that Delk remain at SM-0.

         In addition to these reviews of Delk's status, the External Review Team has conducted evaluations of his step-down pathway assignment on at least five occasions. These sessions are informal ones, “intended to function as an additional, outside check to insure that all offenders are given an appropriate opportunity to progress through the step-down program.” (Artrip Aff. ¶ 7, docket no. 126-1.)

         Delk alleges that his initial assignment to SLS in April 2013 occurred without a formal hearing, in violation of VDOC policies. He also alleges that Defendants violated his due process rights by denying him hearings and/or “meaningful” hearings before each subsequent classification review and decision, in violation of their own classification procedures.

         C. Delk's SLS Conditions Complaints

         Delk challenges his conditions of confinement as an SLS inmate. He states that he has “almost” no human contact and “no possibility of intellectual stimulation.” He complains that his steel cell door is fitted with metal security box over the tray slot and rubber or metal barriers on the door edges to prevent contact and hamper communication; he has not seen or heard a radio or television since 2013; and his only access to social media is through free religious magazines the chaplain provides. Delk also alleges that the lights are left on all the time; the food service and ventilation systems are unsanitary; food portions are cold and (he believes) smaller than those general population inmates receive; officers subject him to “constant verbal abuse”; he has to be strip searched, kneel, and crawl to leave his cell;[2] he has to hear staff and inmates slam security device covers and beat and kick doors, and he has to see inmates throw feces and flood their cells.[3] Further, Delk alleges that his SLS confinement is indefinite, without explanation, and prevents him from earning good conduct time.

         Delk alleges that while subject to SLS conditions, he has suffered weight loss; “worsening” of an unspecified neurological condition; severe hand tremors; daily “seizures”; a chipped tooth from a seizure; hair loss; sleep loss; “constant, severe pain in [his] head”; worsening asthma; and a “detrimental effect” on his “future effort[s]” for “parole eligibility and pardon/clem[en]cy request[s].” (Am. Compl. 8-9, docket no. 32.)

         Defendants offer the affidavit of V. Phipps, head nurse at Red Onion. Phipps notes that according to medical records, Delk weighed 175 pounds upon arrival at Red Onion on July 19, 2012, and his next recorded weight on May 21, 2013 was 150 pounds. The records reflect that between that date and May 26, 2015, Delk's weight steadily increased to 155 pounds. Phipps states, “A 20 lbs. weight loss over three years is not an extreme weight loss.” (Phipps Aff. ¶ 4, docket no. 68-1.) Phipps further states that according to Delk's medical records, he has been provided with a prescription inhaler for asthma, has been diagnosed with an allergy to beans, and has been seen by medical staff for his complaints of head and shoulder pain, tremors while writing and brushing his teeth, and seizures. Phipps also states that Delk is “unable to give symptoms nor has anyone witnessed such ...


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