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Latson v. Clarke

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

April 20, 2017

HAROLD W. CLARKE, ET AL., Defendants.

          Caitlin Marie Kasmar and Katherine Katz, BuckleySandler LLP, Washington, D.C., and Deborah Golden and Elliot M. Mincberg, Washington Lawyers' Committee for Civil Rights and Urban Affairs, Washington, D.C., for Plaintiff;

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


          James P. Jones United States District Judge

         In this civil rights case, the plaintiff, a Virginia inmate, asserts claims against prison officials and state entities based on the First, Eighth, and Fourteenth Amendments to the United States Constitution, as well as the Americans with Disabilities Act and the Rehabilitation Act. The defendants have moved to dismiss the Amended Complaint on numerous grounds. For the reasons that follow, I will grant in part and deny in part the Motion to Dismiss.


         The Amended Complaint alleges the following facts, which I must accept as true for the purpose of deciding the pending motion.

         The plaintiff, Reginald Cornelius Latson, is a twenty-four year old man who has been diagnosed with autism spectrum disorder (“ASD”) and intellectual disability (“ID”). These conditions limit his major life activities of learning, concentrating, thinking, communicating, interacting with others, caring for himself, and working. He has a record of such impairments and is regarded by the defendants as having such impairments.

         Marion Correctional Treatment Center (“MCTC”) is a medium security state prison located in Marion, Virginia. Mr. Latson was confined at MCTC from June 5, 2004 until February 2, 2015. The Commonwealth of Virginia, through the Virginia Department of Corrections (“VDOC”), operates MCTC. MCTC and VDOC receive federal financial assistance.

         Defendant Dara Robichaux served as Assistant Warden of MCTC while Latson was incarcerated. Robichaux supervised MCTC employees and had authority to establish and implement policies and procedures. Defendant Larry Jarvis was the Warden of MCTC during part of the time that Latson was incarcerated. He also supervised MCTC employees and had authority to establish and implement policies and procedures. Defendant Harold W. Clarke is the Director of VDOC. Clarke oversees VDOC employees and has authority to establish, alter, and implement VDOC policies and procedures. Latson has also sued certain “Doe Defendants, ” who are employees of the defendants whose identities are presently unknown to Latson.

         Latson was diagnosed as disabled and began receiving special education services in kindergarten. He repeated kindergarten due to his impairments. At the age of seven, Latson was assigned a full-scale IQ score of sixty-one and was noted as having delays in receptive grammar and reduced eye contact. He was diagnosed with ASD at age fourteen. He exhibited symptoms such as rocking, obsessive focusing, and atypical behaviors and was placed in special education throughout his adolescence. His ASD caused him to have difficulty with communication, social interaction, and maintaining attention.

         It is not uncommon for people with ASD to have unusual sensitivities and difficulty regulating their responses. People with ASD have trouble understanding the actions and motivations of others, lack the ability to read social cues, struggle with complex language, do not easily understand rules of social behavior, and often respond to unexpected situations with anxiety and agitation.

         On April 21, 2014, Latson was transferred from the Northwestern Regional Adult Detention Center to the Rappahannock Regional Jail (“Rappahannock”).[1] When he arrived at Rappahannock, he was placed in solitary confinement. He was not permitted to make telephone calls; a window between his cell and the hallway was covered so he could not see into the hallway; and he was given no material for entertainment except a dictionary. Rappahannock officials did not initially attempt to address Latson's mental health needs.

         Three days after his arrival at Rappahannock, Latson, who was psychologically distressed, was evaluated by a psychiatrist. The psychiatrist concluded that Latson was suicidal, prescribed anti psychotic medication, and ordered Latson moved to a crisis cell for suicide watch. On April 24, 2014, a corrections officer who was placing Latson in the crisis cell ordered Latson to put his hands on the wall and then physically pushed him against the wall. Latson, in the midst of a diagnosed mental health crisis, reacted to this physical force with a fight-or-flight response that is symptomatic of ASD and lashed out, striking the officer.

         Three correctional officers then surrounded Latson, and First Sergeant William Diehl tasered Latson for the full five-second Taser cycle, causing neuromuscular incapacitation. Latson collapsed to the floor. At the direction of First Sergeant Diehl, Latson was placed in handcuffs and leg irons and was seen by a nurse, who removed the Taser probes. After the incident, Latson was placed in a Pro-Straint chair in the crisis cell, and at the direction of First Sergeant Diehl, four correctional officers strapped Latson to the chair. A Pro-Straint chair has a straight back and straps that are used to fully restrain an inmate's legs, arms, waist, and chest.

         Officers checked on Latson every fifteen minutes while he was in the Pro-Straint chair, and for all checks performed within the first hour and a half, he was noted to be either quiet or responsive. For the next four and a half hours, he was noted to be quiet. The officers left him in the Pro-Straint chair, unable to move, eat, or use the restroom, for more than nine hours. When he was released from the Pro-Straint chair, he received a snack bag and milk but was given no dinner.

         Following this incident, Latson was placed in a crisis cell on modified suicide watch for one week. The cell contained a safety mattress but had no toilet, toiletries, or other furnishings. He was then removed from the crisis cell and placed in administrative segregation. While Latson was in segregation, Rappahannock mental health staff only conducted suicide watch checks to ensure he was not in immediate physical danger. Rappahannock staff prevented Latson from receiving mental health testing or treatment. Latson remained in segregation for more than one month, until he was transferred to MCTC on June 5, 2014.

         Within a day of his arrival at Rappahannock, Latson was placed into the legal custody of the VDOC, despite continuing to be housed at a regional jail. Clarke had discretion to determine the priority for receiving prisoners in VDOC custody from local facilities into state-operated facilities and to order transfers of prisoners. Within a week of Latson's arrival at Rappahannock, VDOC representatives were notified of Latson's conditions and treatment at Rappahannock. Clarke, however, did not immediately transfer Latson to a different facility.

         On April 30, 2014, while Latson was restrained in the Pro-Straint chair, clinical psychologist Susan Williams emailed mental health clinician Richard Feldman, copying Keith Dawkins and Eric Madsen, all of whom were VDOC employees, requesting that Feldman meet with Latson to consider whether he should be transferred to a VDOC facility sooner than planned. Williams wrote that VDOC needed a report of Latson's mental status and how he was being managed at Rappahannock.

         On May 8, 2014, Feldman met with Latson and reported that Latson was manageable with close monitoring and regular contact with treatment staff. Feldman conveyed his belief that Latson was being singled out by correctional officers for ridicule and mistreatment because the original offense that led to his incarceration was an assault of a police officer. Feldman observed that Latson was not delusional and did not show evidence of perceptual disturbances. Feldman noted that Latson had previously done very well at Northwestern Regional Adult Detention Center, where he had been in a sheltered housing situation.

         On May 7, 2014, Latson's attorney communicated with VDOC about the possibility of transferring Latson to AdvoServ, a non-VDOC facility, before he had finished serving his active sentence. On May 20, 2014, counsel working on Latson's behalf sent a letter to the Governor of Virginia regarding Latson's conditions and treatment at Rappahannock and the effects on Latson's mental health. Latson's advocates continued to contact VDOC and other Commonwealth agencies throughout Latson's time at Rappahannock, alerting them to Latson's conditions and treatment and his diagnosed disabilities, and requesting that he be transferred to another facility. The Governor directed VDOC to transfer Latson to a VDOC facility as soon as possible, and Latson was transferred to MCTC on June 4, 2015.

         Research has shown that the impacts of solitary confinement can be similar to those of torture and can include a variety of negative physiological and psychological reactions. These effects are amplified in individuals with mental illness and can exacerbate underlying conditions, especially in people with intellectual disabilities. Latson alleges that the defendants knew or should have known that placing him in segregation could be devastating to his mental health. In 2003, following a series of inmate suicides at the facility, a suicide consultant issued a report to Rappahannock recommending that isolation should be avoided and suicidal inmates should instead be housed close to staff in the general population, mental health unit, or medical infirmary. The report also stated that restraints such as the Pro-Straint chair should be used only as a last resort.

         In 2012, United States Immigration and Customs Enforcement (“ICE”) inspected Rappahannock and recommended that Rappahannock adopt policies and procedures requiring removal of ICE detainees from their cells to use toilet facilities, when necessary, to protect the detainees' privacy and dignity. VDOC, the Commonwealth, and Clarke knew or should have known about the ICE report.

         While he was in segregation at Rappahannock, Latson was provided no sensory stimulation. Specifically, he had no window, radio, reading materials, television, or means of tracking time. He could see only the walls and door of his cell. He was in segregation for more than a month and a half, during which time he was only removed from his cell when the cell was being cleaned.

         Latson was criminally prosecuted for the incident that led to the use of the Pro-Straint chair. Latson pleaded guilty to the charge of assault on a police officer and was sentenced to an additional six months of imprisonment. A prominent corrections expert reviewed the handling of the offense and opined that, in accordance with the standard practices of other jails nationwide, the incident should have been treated as a mental health crisis and not as a criminal matter. The expert commented that criminally prosecuting such violations by mentally ill inmates can lead to a cycle of rule violations, punishment, segregation, and exacerbation of mental illness, which in turn leads to more violations and increasingly severe punishment.

         When he was moved to MCTC, a facility designed to house mentally ill inmates, Latson encountered conditions similar to those he had faced at Rappahannock. He was placed into segregation immediately upon his arrival at MCTC and remained there for nearly six months, with the exception of fourteen days in late September and early October when he was housed in the general population. He again had no access to reading materials, a radio, a television, a clock, or other stimulus while he was in his segregation cell. He could only access these items on days when he was allowed out of his cell for limited periods of time. For most of his incarceration at MCTC, Latson could only stare at the walls of his cell.

         An MCTC policy requires a formal hearing when an offender is considered for removal from the general population, an increase in security level, or reduction in good-time earning level outside the annual review process. Nevertheless, Latson was not given a hearing before being placed into segregation. He received a hearing three weeks later.

         On June 26, 2014, following his hearing, Latson was given a Segregation Release Plan (“SRP”) that provided for limited temporary release three days per week for at least one hour. During the preceding three weeks, Latson was permitted no temporary release. Latson was placed in disciplinary segregation at least three times for actions taken as a result of his ASD. While he was in disciplinary segregation, he was provided no time outside of his cell. On one occasion, he was kept in his cell for twenty consecutive days with no stimulus other than Bible pamphlets. When he was not in disciplinary segregation, Latson's out-of-cell time ranged from half an hour three days per week to one hour five days per week. On the remaining days, he was not permitted outside of his cell at all.

         Throughout Latson's time at MCTC, Risk of Institutional Aggression forms noted that Latson posed a high risk of aggression towards others. The reasons stated for this assessment were that he had been convicted of assaulting a law enforcement officer, had mild ID and ASD, and had a history of low frustration tolerance and aggression. The defendants did not create a protocol to address Latson's disabilities, and they responded to his behavioral incidents with punishment rather than treatment.

         On June 30, 2014, Latson's SRP was suspended and he was placed in disciplinary segregation for one week because he had thrown objects at his cell door and liquid under and around his cell door after becoming upset. He alleges this was an episodic outburst caused by his ASD. Latson was not given a hearing before being placed in disciplinary segregation. Advocates for Latson voiced concerns to an MCTC clinical social worker about the consequences of placing Latson in segregation and asked that he have access to some sensory input, but that request was not fulfilled.

         On July 11, 2014, Latson threw his coffee cup at the wall and pushed his breakfast tray through the slot in his cell door, striking an officer in the abdomen. He was forcibly extracted from his cell and suffered a laceration on his arm that required stitches. He was punished with twenty days of disciplinary segregation, but he was not placed back on an SRP until twenty-eight days after the incident. During his twenty-eight days in segregation, he was not allowed any time outside of his cell. For one month following the incident, he was deprived of a toothbrush. For nearly a month and a half, blood from the laceration on his arm remained in his cell. For more than two months, he was not given toilet paper.

         By the time he was transferred to MCTC, Latson had already lost forty-two pounds since his arrest. Within ten days of his arrival at MCTC, he had lost an additional five pounds. Beginning a few days after his transfer, MCTC gave him Ensure twice a day in addition to his meals. However, following the July 11 incident, he no longer received Ensure despite pleas by those advocating on his behalf. In addition, Latson was not permitted to purchase anything from the commissary other than writing materials and hygiene supplies. Though no security reason was stated for the restriction, he was not permitted to order food or discretionary items that other inmates were allowed to order.

         On June 18, 2014, an MCTC recreation therapist completed a Recreation Therapy Assessment of Latson. He noted that Latson had a slow learning ability and would need activities to help him cope with his environment. No such activities were implemented. While at MCTC, Latson received no mental health treatment aside from psychiatric medication. His advocates visited him on October 3, 2014, and were not permitted to complete a grievance form.

         On October 5, 2014, Latson had an outburst in the cafeteria at breakfast. His SRP was suspended and he was placed in disciplinary segregation for twenty days. During that time, he was not allowed outside of his cell and had no access to music, books, magazines, radio, television, or canteen items. His only source of stimulus was a few Bible pamphlets. Latson alleges that because of his ASD, he is not deterred from future misconduct by discipline in the way that non-disabled inmates are deterred.

         Latson avers that throughout his time at MCTC, Robichaux and Jarvis personally reviewed and approved decisions regarding his housing situation. Beginning the day after his arrival at MCTC, people advocating on Latson's behalf communicated with Robichaux and Jarvis about his diagnoses and expressed their concerns about his treatment and conditions of confinement, and the effects that isolation would have on his mental state. Latson's advocates also communicated with other staff members who were supervised by Robichaux and Jarvis. On June 5, 2014, Latons's attorney spoke with an MCTC employee to express his concern about Latson's segregation placement and to request that reading materials be made available. The employee responded that she would review the applicable policies and speak to security about his concerns.

         VDOC employees working under Clarke's supervision were also informed of Latson's treatment and conditions of confinement throughout his placement at Rappahannock and MCTC. On July 9, 2014, Clarke sent Latson's attorney an electronic calendar invitation to speak about Latson on July 14, 2014. Clarke was copied on letters regarding Latson's situation at MCTC that Latson's counsel sent to the Governor on September 2, 2014, and November 21, 2014.

         In late 2014, media sources including the Washington Post and the New York Times began publishing stories about Latson. The United States Department of Justice (“DOJ”) interviewed Latson as part of an investigation into the Commonwealth's compliance with a settlement agreement involving accommodations for inmates with intellectual and developmental disabilities. Virginia's Protection and Advocacy Organization, a federally mandated program, sought information about his confinement. In December, 2014, Latson was transferred from administrative segregation to the general population at MCTC.

         Latson's counsel submitted a formal pardon request to the Governor on January 12, 2015. The Governor granted a conditional pardon on January 20, 2015, approving Latson's transfer to AdvoServ, an out-of-state facility designed to serve individuals with intellectual and developmental disabilities. The Virginia Department of Medical Assistance Services had contemplated this placement as early as August, 2013, and had procured funding for it in October, 2013.

         On January 20, 2015, after Latson was conditionally pardoned, he was returned to segregation. He was stripped of his possessions, had all of his privileges revoked, and was again denied access to books, television, telephone, the commissary, and his music player. Three days later, MCTC staff informed Latson's attorney that Latson had been placed in segregation for his own protection, but offered no explanation for the withdrawal of privileges and lack of stimulation. Latson's counsel then emailed several representatives of MCTC, VDOC, and the Virginia Department of Behavioral Health & Developmental Services (“DBHDS”), including Robichaux, alerting them to his segregation and removal of stimulus and privileges following the pardon, and expressing concern about the effect these conditions would have on Latson. His counsel had learned that Latson had no water in his segregation cell and was only given drinks at meals, and she had been told that after the pardon, staff had been handling him roughly, mocking and disparaging him, and threatening him about the pardon. Latson's counsel included this information in her emails to representatives of MCTC, VDOC, and DBHDS.

         When Latson was removed from the general population and placed into segregation following his pardon, he was not placed in pre-hearing detention or given a formal hearing. Latson alleges that guards and other MCTC staff placed him in segregation as an act of retaliation against him for exercising his free speech rights to secure a pardon. As a result, his ability to communicate with his counsel, family, and others outside the facility was restricted; his mental condition was destabilized; and he feared further retaliation for future attempts to exercise his free speech rights.

         Latson was transferred to AdvoServ on February 2, 2015. Though his mental health needs are being addressed there, Latson alleges that the defendants' actions caused him significant and potentially irreversible damage. He developed post-traumatic stress disorder (“PTSD”) and other mood, anxiety, and panic disorders. He has had difficulty adapting to his new environment. Authority figures provoke severe anxiety and fear. Latson avers that he once showed promise of leading a relatively independent life in the least restrictive placement and maintaining employment, but it is now unlikely that he will achieve that level of independence in the foreseeable future. He relies on others to manage his heightened fear and reactivity in challenging interpersonal situations, and he is hypervigilant to signs of danger. He alleges that he will require long-term mental health treatment to address his anxiety, depression, social isolation, and sense of hopelessness. Latson contends that his trauma was caused by the conditions of his confinement at Rappahannock and MCTC, and in particular, his lengthy placements in segregation and lack of stimulus.

         Based on these allegations, Latson asserts seven claims. Count One is an Eighth Amendment claim regarding Latson's conditions of confinement, brought pursuant to 42 U.S.C. § 1983 against Robichaux, Jarvis, and Clarke in their individual capacities. Count Two is an Eighth Amendment claim brought pursuant to § 1983 against Robichaux, Jarvis, and Clarke in their individual capacities, regarding their alleged failure to provide medical care to Latson. Count Three is a Fourteenth Amendment due process claim brought pursuant to § 1983 against Robichaux, Jarvis, and Clarke in their individual capacities. Count Four is a Fourteenth Amendment equal protection claim brought pursuant to § 1983 against Robichaux, Jarvis, and Clarke in their individual capacities. Count Five is a First Amendment free speech retaliation claim brought pursuant to § 1983 against Robichaux and Clarke in their individual capacities. Count Six asserts a claim of violation of the Americans with Disabilities Act (“ADA”) against Robichaux, Jarvis, and Clarke, in their official capacities, and MCTC, the Commonwealth of Virginia, and VDOC. Count Seven asserts a claim under the Rehabilitation Act (“RA”) against Robichaux, Jarvis, and Clarke, in their official capacities, and MCTC, the Commonwealth of Virginia, and VDOC.


         Latson initially filed suit in the United States District Court for the Eastern District of Virginia on April 21, 2016, asserting claims against the defendants named here as well as parties associated with Rappahannock. Latson v. Clarke, No. 1:16-cv-00447-GBL-MSN (E.D. Va.). Clarke, MCTC, Robichaux, Jarvis, the Commonwealth, and VDOC moved to sever the claims against them from the claims against the Rappahannock parties and to transfer the severed claims to the Abingdon Division of the Western District of Virginia, in which MCTC is located. The court granted the Motion to Sever and Transfer Venue, finding that the two sets of claims were significantly different from one another and would require the presentation of different evidence and witnesses. Mem. Op. & Order 10-11 (E.D. Va. Oct. 14, 2016), ECF No. 79. The court also found that “trying the claims together may cause the jury to hold the Commonwealth Defendants liable for physical force the Complaint alleges occurred at the Rappahannock Jail only, ” prejudicing the defendants. Id. at 11.

         After the severed claims were transferred to this court, Latson filed an Amended Complaint. The defendants have moved to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted, asserting a number of grounds for dismissal. The Motion to Dismiss has been fully briefed and is now ripe for decision.[2]


         “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

         In ruling on a motion to dismiss, the court must regard as true all of the factual allegations contained in the complaint, Erickson v. Pardus,551 U.S. 89, 94 (2007), and must view those facts in the light most favorable to the plaintiff. Christopher v. Harbury,536 U.S. 403, 406 (2002). “Where, as here, the motion to dismiss involves a civil rights complaint, [I] must be especially solicitous of the wrongs alleged and must not dismiss the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal ...

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