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Jordan v. Virginia Department of Corrections

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

September 18, 2017



          Elizabeth K. Dillon United States District Judge.

         Jason Ramon Jordan, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. In his amended complaint, Jordan asserts constitutional challenges to certain classification procedures and decisions that have resulted in his lengthy confinement under highly restrictive living conditions at Red Onion State Prison (Red Onion).[1]After review of the record, I conclude that the defendants' motions for summary judgment must be granted.

         I. BACKGROUND

         A. Red Onion Classification Policies

         Jordan was transferred to Red Onion on December 9, 2012, from another VDOC prison facility. He is serving a term of life imprisonment.[2]

         Red Onion and Wallens Ridge State Prison house all VDOC “Level S” inmates. Level S is reserved for inmates who must be managed in a segregation setting. When a VDOC inmate is classified to 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 12-34, Dkt. No. 40-1.) The step-down program, first implemented in 2012, has 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 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. (Swiney Aff. ¶ 4, Dkt. No. 40-1.)

         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 in each pathway are further sub-classified under OP 830.A as follows, starting with IM-0 or SM-0, the most restrictive status, and ending with Security Level 6, the least restrictive: Intensive Management (IM): IM-0, IM-1, IM-2, and Security Level 6 (also known as the IM-SL6 Closed Pod); Special Management (SM): SM-0, SM-1, SM-2, SM-SL6 (also known as Structured Living - Phase 1 and Phase 2). (See OP 830.A(IV)(D) and (E).) The step-down program in OP 830.A is a so-called cognitive program that 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. (Id.)

         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. (See OP 830.A Attach. 1-3, at 24-34, Dkt. No. 40.1.) These restraint requirements mirror the security measures applicable during temporary terms of segregated confinement at any VDOC facility. (OP 861.3(V)(D), at 46, Dkt. No. 40-1.) Per policy, Level S inmates in the IM and SM pathways, like segregation inmates in other VDOC facilities, 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 limited telephone use, weekly non-contact visitation, 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 or SM inmate may earn when advanced a step 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.

         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. (OP 830.A(IV)(D)(4) and (E)(4).) Some inmates moved back to a lower step must once again meet the pro-social goals of that step to advance. An inmate's refusal to participate in the step-down program may also be grounds for a reduction in his step assignment back to IM-0 or SM-0, where he may remain, stripped of the privileges he had earned in the higher step, until he chooses to participate. (See gen. Swiney Aff., Dkt. No. 40-1; Duncan Aff., Dkt. No. 49.1.)

         Members of the Unit Management Team, a multi-disciplinary group of staff who work in the housing units, conduct weekly reviews to track and rate each inmate's progress toward the goals of his assigned step. (Duncan Aff. ¶ 11; OP 830.A(IV)(D) and (E).) They rate his behavior 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, a Dual Treatment Team made up of officials from both Red Onion and Wallens Ridge conducts informal monthly reviews of each inmate's progress. (Id.)

         When an inmate completes the Challenge Series curriculum and evaluators deem that he has achieved its behavioral goals in SM-2, he is stepped down in security level from Level S to SM-SL6. (OP 830.A(IV)(F).) At this point, officials assess each inmate and assign him to one of three SL6 program pods geared to safely reintroduce him into a social environment to interact with other inmates and test his readiness for possible transfer out of Level S to Security Level 5, and then to other non-segregation settings.[3] (Id.)

         In the SL6 step-down pod, to which most SM-2 inmates would advance, inmates may progress through two phases. (Id.) In SL6 Phase 1, they 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 SL6 Phase 2 are double-celled and unrestrained for showers and recreation, have limited outside recreation with other inmates, and can walk to meals with other inmates to eat their meals together in the dining hall.

         By contrast, if an IM inmate reaches IM-2 status, he can become eligible for assignment to the lowest security level for an IM status inmate: the IM-SL6 Closed Pod. The Closed Pod is expressly designed “to create an opportunity for an increased quality of life for offenders possibly facing a long term in high security.” (OP 830.A(IV)(G)(1).) Closed Pod inmates continue to have single-celled housing, segregated showers and recreation areas, and out-of-cell restraints, shackles, and dual escorts. Closed Pod inmates can, however, earn more privileges than any other group of IM inmates, such as more in-pod job assignments, more programming in-cell and in small groups in secure chairs, video visitation, and longer in-person visitation.

         Policies provide that in addition to the weekly and monthly informal progress ratings by the Unit Management Team and Dual Treatment Team, all segregation inmates, including those participating in the step-down program, are to receive a formal review by the Institutional Classification Authority (“ICA”) every ninety days to determine whether their segregation status remains appropriate. (Swiney Aff. ¶ 7, Dkt. No. 40-1.) Among other actions at these reviews, the ICA makes recommendations for step increases or reductions. (See, e.g., ICA Hearing Report, May 8, 2016, at 32, Dkt. No. 40-2.) Furthermore, according to OP 830.A(IV)(K)(1)(a), “[a] team external to [Red Onion and Wallens Ridge] will perform an annual review of each [Level S] offender's case.” This review includes a reassessment of whether the inmate continues to meet the criteria for Level S and/or the IM or SM path to which he has been assigned. Per policy, all classification decisions may be appealed through the Offender Grievance Procedure, to which Level S inmates have access. (OP 830.1(IV)(G), at 43, Dkt. No. 40-1.)

         B. Jordan's Classification Proceedings

         Shortly after Jordan's arrival at Red Onion in December 2011, the ICA conducted an intake review of his segregation status. (Swiney Aff. Encl. D-E, Dkt. No. 40-1.) Jordan was present, but did not make a statement. The ICA recommended that Jordan remain assigned to administrative segregation because of recent disciplinary convictions he had incurred that included grabbing a nurse between the legs and threatening to stab an officer who was trying to conduct an interview about an assault. The ICA continued this recommendation at his next review in March 2012 and in May 2012, after he incurred an infraction for stabbing another inmate with a four-inch shank in a gang-related incident. (Id. at Encl. F.) Jordan received regular reviews of his segregation status in July and September, and after an ICA review on October 2012, he was assigned to the Special Management pathway, SM-0 status, under a former version of the step-down procedure. (Id. at Encl. J, Dkt. No. 40-2.) In December 2012, however, after an ICA review with Jordan present, the ICA recommended that his status should be changed to the Intensive Management pathway, IM-1 status, because he needed “a longer period of stable adjustment” and to complete the Challenge Series. (Id. at Encl. L.) The ICA reports note that Jordan was present and made statements at most of these reviews.

         Jordan received regular reviews of his segregation assignment in March, May, and August 2013, when the ICA recommended advancing him to IM-2 status. (Id. at Encl. M-P.) After reviews in November 2013 and February, May, and August 2014, the ICA recommended continuing Jordan's IM-2 status, despite his refusal to participate in one review and his recent commission of a disciplinary infraction. (Id. at Encl. Q-U.) In November 2014, the ICA recommended moving Jordan back to IM-0 status because of poor institutional adjustment and several recent disciplinary charges. (Id. at Encl. Y.) After reviews in February and May 2015, the ICA recommended advancing Jordan to IM-1 status; he had completed the Challenge Series and avoided disciplinary infractions for nine months. (Id. at Encl. AA.) In August 2015, the ICA recommended IM-2 status for Jordan, and that change was approved. (Id. at Encl. BB.) After a review in October 2015, the ICA recommended that Jordan be allowed to earn good conduct time. (Id. at Encl. DD.) He continued at IM-2, however, after segregation reviews on November 2015 and January 2016. (Id. at Encl. EE-FF.)

         In March 2016, the Dual Treatment Team and the ICA recommended advancing Jordan from Level S to Security Level 6; the warden approved this change, and Jordan was transferred to the Closed Pod. (Id. at Encl. GG.) After status reviews in April, June, July, and August 2016, the ICA recommended that he remain classified to the Closed Pod, despite the fact that he had incurred a disciplinary conviction for threatening bodily harm and had spent some time in pre-hearing detention. (Id. at Encl. HH-MM.) In September 2016, however, the ICA recommended changing Jordan from Level 6 to Security Level S again because he had incurred two disciplinary charges while in the Closed Pod. (Id. at Encl. OO.)

         At Jordan's annual review in October, the ICA recommended that he continue to earn good conduct time while in Level S; the report noted that Jordan had completed the first two Challenge Series books, was working as a utensil prep worker, and was enrolled in a Distance Learning Program. (Duncan Aff. Encl. A, Dkt. No. 49-1.) In December 2016 and March 2017, the ICA recommended IM-0 because Jordan had not completed the step-down criteria, but after his review in May 2017, he was advanced to IM-1. (Id. at Encl. B-D.) The ICA report for Jordan's July 2017 review noted that he had stated, “Fuck that review, fuck that program.” (Id. at Encl. F.) Nevertheless, the ICA recommended allowing him to remain at IM-1 to continue working on the step-down goals. (Id.)

         C. Jordan's allegations

         Liberally construed, Jordan's verified amended complaint asserts claims that application of OP 830.A on its face and as applied to him prolongs an inmate's confinement under unfair segregation conditions without federally required procedural protections, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and that those conditions violate the Eighth Amendment's prohibition against cruel and unusual punishment. (Am. Compl. ¶¶ 97-99, Dkt. No. 32-1.) Jordan sues VDOC administrators for the OP 830.A policy iteself and failing to correct the alleged constitutional violations. He also sues supervisory and treatment officials at Red Onion for the undesirable conditions and for improperly making or failing to correct the allegedly unfair ...

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