United States District Court, W.D. Virginia, Abingdon Division
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;
Hull Davidson, Assistant Attorney General, Office of the
Attorney General, Richmond, Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge
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.
Amended Complaint alleges the following facts, which I must
accept as true for the purpose of deciding the pending
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.
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.
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.
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.
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.
April 21, 2014, Latson was transferred from the Northwestern
Regional Adult Detention Center to the Rappahannock Regional
Jail (“Rappahannock”). 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.
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.
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.
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.
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.
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
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
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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 ...