United States District Court, E.D. Virginia, Alexandria Division
THOMAS PORTER, et al. Plaintiffs,
HAROLD W. CLARKE, Defendants.
M. Brinkema United States District Judge
the Court are plaintiffs' and defendants' renewed
cross-motions for summary judgment. Plaintiffs argue that the
conditions of confinement that existed on Virginia's
death row at the initiation of this litigation violated the
Eighth Amendment of the United States Constitution and that
they are entitled to an injunction preventing defendants from
returning to those conditions. Defendants argue that those
conditions of confinement were constitutional and that this
Court should decline to issue injunctive relief even if it
finds a constitutional violation. For the reasons that
follow, the Court will grant summary judgment for plaintiffs
and issue an injunction preventing defendants from returning
to the unconstitutional conditions of confinement.
the plaintiffs in this civil action have been convicted of
capital murder and sentenced to death and remain confined in
a single unit ("death row") at Virginia's
Sussex I State Prison ("SISP") while their
sentences are litigated. Plaintiffs Thomas Porter
("Porter"), Anthony Juniper ("Juniper"),
and Mark Lawlor ("Lawlor") have respectively spent
over ten, twelve, and six years on death row, and former
plaintiff Ricky Gray ("Gray") had spent more than
ten years on death row before being executed in January 2017.
Compl. [Dkt. No. 1] ¶ 2; Answer [Dkt. No. 49] ¶ 2.
Plaintiffs filed this civil action against defendants Harold
Clarke ("Clarke"), the director of the Virginia
Department of Corrections ("VDOC"), and Keith W.
Davis, the former warden of SISP,  claiming that the conditions
of their confinement on death row violate the Eighth
Amendment and the Fourteenth Amendment. The still-living
plaintiffs are three of the four inmates currently housed on
death row in Virginia.
litigation is related to an earlier civil action brought by a
former death row inmate, Alfred Prieto, who claimed that his
automatic placement onto death row, combined with the severe
conditions death row inmates faced, violated the Due Process
Clause of the Fourteenth Amendment. The Court found that the
placement procedure violated the Fourteenth Amendment and
granted Prieto summary judgment. Prieto v. Clarke.
No. 1:12-cv-l 199, 2013 WL 6019215 (E.D. Va. Nov. 12, 2013).
That judgment was reversed by the Fourth Circuit. See
Prieto v. Clarke. 780 F.3d 245 (4th Cir.
2015). In response to that decision, the
plaintiffs in this action stipulated to the dismissal of
their Fourteenth Amendment Claim. Stipulation of Voluntary
Dismissal [Dkt. No. 30].
this civil action began, the conditions on death row were
identical to those described in Prieto. Death row
inmates were housed in a separate "pod" from the
ones housing the general population of the prison. This pod
consisted of two tiers, each holding 22 cells and three
showers. Orig. Def. Mem. [Dkt. No. 110] Ex. 1 ("Clarke
Aff.")¶ 11. The cells' size of 71 square feet,
with a 10.5 foot-high ceiling, was comparable to the size of
cells housing general population inmates; however, unlike
those inmates, death row inmates were isolated from other
inmates in that they did not share cells and were not housed
in adjacent cells. Id. ¶¶ 12-13; Compl.
¶ 5; Answer ¶ 5. The cells had windows that were 5
inches high by 41.5 inches long and covered by wire mesh,
although natural light came through and inmates could see out
of them. Clarke Aff. ¶ 14. Each cell door had a
rectangular in-set window that allowed inmates to look
outside of their cell into the pod. Id. ¶ 15.
The doors were not soundproof, and inmates did attempt to
communicate to other inmates while in their cells, but there
is disagreement over how effectively they could do so. See
Id. ¶ 15; Orig. Pl. Mem. [Dkt. No. 115] Ex. 7
("Hendricks Report") 11. While in their cells,
inmates were permitted to have a television and a compact
disc player, and they could request books from the law
Operating Procedure 460A ("OP 460A"), effective
March 1, 2010, governed the daily lives of death row inmates,
as did the SISP Institutional Rules and Regulations for
Offenders, effective February 3, 2010. Clarke Aff.
¶¶ 21-22. Under these regulations, death row
inmates were allowed one hour of outdoor recreation five days
per week, but such recreation was confined to individual
enclosures that measured 7.9 feet by 20 feet and lacked any
exercise equipment. Id. ¶ 23. During that
outdoor recreation time, some plaintiffs coordinated
exercises with one another, despite not being permitted to
use adjacent enclosures. Plaintiffs were also permitted to
leave their cells to shower at least three times each week,
and two inmates, Porter and Gray, were allowed out of their
cells to perform their institutional jobs as houseman and
barber, respectively. Id. ¶¶ 25-28.
Visitation was limited to noncontact visitation on weekends
and approved holidays; however, an inmate could request
contact visitation, which the warden had the discretion to
grant or deny. Id. ¶ 51. Plaintiffs also
had access to wireless telephones that could be brought to
their cell and used any day of the week between 8:00 a.m. and
9:30 p.m., with each call generally limited to 20 minutes.
Id. ¶¶ 43-44. Other than these limited
out-of-cell interactions, death row inmates were generally
not permitted to leave their cells. In particular, they were
denied access to any form of congregate recreation, either
indoor or outdoor; they were not allowed to eat meals outside
of their cells; and they could not participate in congregate
religious services or prison programming. C£ OP 460A;
Prieto, 2013 WL 6019215, at *1.
had interaction with prison staff, including mental health
counselors, and could have essentially unlimited contact
visitation with their attorneys. Corrections officers made
rounds through the unit every 30 minutes and were allowed to
converse with the inmates, medical personnel came through the
pod twice each day, nurses came through the pod twice each
day to perform a "pill pass, " the mental health
practitioner visited once each week, each inmate's case
counselor visited the pod daily, and inmates could request
medical or mental health care at any point as well as meet
with the chaplain as frequently as they wanted. Clarke Aff.
¶¶ 30-38. Each inmate was screened for mental
health problems upon entering the facility for the first time
and received a mental health code that was reviewed at least
annually. Orig. Def. Mem. Ex. 4 ¶¶ 7-8. According
to the results of this screening, Porter and Juniper were (as
of 2015) classified as MH-O, meaning they had no mental
health issues or need for treatment in the preceding year,
and Lawlor was classified as MH-2, meaning he had mild to
moderate, but stable, mental health issues. Id.
to Clarke, he began considering changes to some of these
policies as early as 2011 but decided not to move forward
with any changes after the Prieto litigation began
in 2012; however, in mid-2014, he began solidifying plans to
implement changes and decided to move forward with those
changes even after this civil action began. Clarke Aff.
¶¶ 57-58. On August 6, 2015, Zook approved a number
of interim rules and regulations for death row. Id.
¶ 59. In light of these changes, the Court granted the
parties' motion to stay the litigation and to refer the
matter to mediation should any disagreements remain after the
changes were implemented. See Order [Dkt. No. 88].
the changes took effect immediately. By the initial round of
summary judgment briefing, inmates were permitted to have
contact visitation with immediate family members one day per
week for one and a half hours at a time, while still being
permitted to have non-contact visitation on weekends and
holidays with immediate family members and one approved
non-family member. Outdoor recreation time was increased to
90 minutes five days each week; showers became daily; and
plaintiffs were allowed to congregate indoors for one hour
each day, without restraints and in groups of up to four
inmates at a time. This indoor congregation occurred in a
newly screened off area of the death row pod that contained a
television, two tables with seating, a bench, various games,
and a JPAY kiosk that enabled inmates to download music,
purchase books and movies, and send e-mails. The interim
regulations anticipated that the day room would be used
"for congregate religious services, behavioral
programming, and additional employment opportunities for
Death Row Offenders, " and at least one additional job
for inmates was created with at least one more anticipated.
See Stay Def. Mem. [Dkt. No. 85] Ex. 1.
addition to the immediate changes, the interim regulations
called for the construction of a covered outdoor recreation
yard that would include two sections, each equipped with a
basketball court and stationary exercise equipment, in which
groups of up to four death row inmates could congregate.
Clarke Aff. ¶ 57-60. Although the interim regulations
anticipated that construction of the recreation yard would be
completed by October 1, 2015, it had not been completed by
the time the original summary judgment motions were filed.
See Orig. Pl. Mem. Ex. 3 ¶ 23. Since then, the
construction has been completed and death row inmates may now
use the outdoor recreation yard; in addition, the interim
regulations have been adopted into final regulations, which
took effect in June 2016. See Dkt. No. 161-1 ¶¶
12-13; Id. Ex. 8 (Operating Procedure 425. A).
failing to resolve the litigation, the parties filed
cross-motions for summary judgment, primarily focusing on
whether the prior conditions of confinement violated the
Eighth Amendment. Based on the improvements made by
defendants to the death row conditions, which satisfied
plaintiffs' demands, the Court issued an Order and
Memorandum Opinion, in which it found that the adoption of
the interim regulations and the physical improvements had
rendered plaintiffs' action moot. See Order & Mem. Op.
[Dkt. Nos. 166 & 167]. As such, the Court denied
plaintiffs' motion for summary judgment, granted
defendants' motion, and ordered that judgment be entered
in favor of defendants. Id.
appealed to the Fourth Circuit, see Dkt. No. 171, which
reversed that decision and remanded, holding that under the
voluntary cessation doctrine, plaintiffs' action was not
constitutionally moot, see Dkt. No. 174; Porter v.
Clarke. 852 F.3d 358 (4th Cir. 2017). On remand,
plaintiffs engaged in limited additional discovery and the
parties have filed new briefs focusing "on the question
of whether equitable relief would be appropriate,
presupposing (but not conceding) the existence of a
constitutional violation." Dkt. No. 189. Both parties
have expressly adopted and reincorporated their original
briefing on the merits of the Eighth Amendment claims.
Id. These renewed motions are now before the Court.
STANDARD OF REVIEW
is entitled to summary judgment if the party can show
"that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). A genuine dispute of material
fact exists "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In general, bare allegations or assertions by the
nonmoving party are not sufficient to generate a genuine
dispute; instead, the nonmoving party must produce
"significantly probative" evidence to avoid summary
judgment. Abcor Corp. v. AM Int'l. Inc., 916
F.2d 924, 929-30 (4th Cir. 1990) (quoting Anderson.
477 U.S. at 249). That being said, in ruling on a motion for
summary judgment, a court should accept the evidence of the
nonmovant, and all justifiable inferences must be drawn in
her favor. Anderson, 477 U.S. at 255.
determining whether to grant or deny injunctive relief, the
district court must exercise its equitable discretion.
eBay Inc. v. MercExchange. LLC. 547 U.S. 388, 391
(2006). Because injunctive relief is equitable,
"[flexibility rather than rigidity has distinguished
it." Weinberger v. Romero-Barcelo. 456 U.S.
305, 312 (1982) (internal quotation marks omitted). An
injunction is appropriate where the plaintiff demonstrates he
has suffered an irreparable injury, remedies at law cannot
compensate for that injury, balancing the hardships between
the parties inclines in favor of an equitable remedy, and the
public interest is not disserved by an injunction.
eBay, 547 U.S. at 391. In addition, if a defendant
has voluntarily discontinued challenged conduct, an
injunction is permissible as long as "there exists some
cognizable danger of recurrent violation." United
States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).
Moreover, in the prison conditions context, any injunction
must conform with the requirements laid out in the Prison
Litigation Reform Act ("PLRA").
PLAINTIFFS' EIGHTH AMENDMENT CLAIM
determining whether injunctive relief is available to
plaintiffs, the Court must first determine whether plaintiffs
have proven their substantive Eighth Amendment claim: that
the conditions of confinement on death row before 2015
violated the Eighth Amendment's cruel and unusual
Eighth Amendment Standard
Eighth Amendment's prohibition of "cruel and unusual
punishments" applies to the treatment of prisoners and
the conditions of their confinement. Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). To make out
an Eighth Amendment claim, plaintiffs must demonstrate both
an objective and a subjective element. Id. First,
they must prove "that objectively the deprivation of a
basic human need was sufficiently serious." Johnson
v. Ouinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal
quotation marks omitted). Second, they must prove "that
subjectively the prison officials acted with a sufficiently
culpable state of mind." Id. (internal
quotation marks omitted).
objective prong is "contextual and responsive to
'contemporary standards of decency.'" Hudson
v. McMillian. 503 U.S. 1, 8 (1992) (quoting Estelle
v. Gamble. 429 U.S. 97, 103 (1976)). To be deemed
"sufficiently serious, " defendants' conduct
must have resulted "in the denial of' the minimal
civilized measure of life's necessities." Farmer
v. Brennan. 511 U.S. 825, 834 (1994) (quoting Rhodes
v. Chapman. 452 U.S. 337, 347 (1981) (discussing cases
where conditions were found unconstitutional "because
they resulted in unquestioned and serious deprivation of
basic human needs")). The deprivation must have been
"extreme, " meaning that the conditions caused a
"serious or significant physical or emotional
injury" or a "substantial risk" of such an
injury. De'Lonta v. Johnson. 708 F.3d 520, 525
(4th Cir. 2013) (quoting De'Lonta v. Angelone.
330 F.3d 630, 634 (4th Cir. 2003)). Conditions that are not
deemed cruel and unusual according to contemporary standards
cannot be found unconstitutional, even if they are
"restrictive and even harsh, " because "they
are part of the penalty that criminal offenders pay for their
offenses against society." Rhodes. 452 U.S. at
respect to the subjective prong, plaintiffs must show that
defendants acted with "deliberate indifference, " a
standard that "requires proof of more than mere
negligence but less than malice." Williams. 77
F.3d at 761. Specifically, plaintiffs must show that
defendants "actually [knew] of and disregard[ed] an
objectively serious condition ... or risk of
harm."Angelone. 330 F.3d at 634. If the
risk of harm was "obvious, " the Court "may
infer the existence of this subjective state of mind."
Hope v. Pelzer. 536 U.S. 730, 738 (2002). Similarly,
if the challenged conditions lacked any legitimate law
enforcement or penological purpose, the decision to impose
and enforce the conditions may itself serve as
"sufficient evidence of a culpable state of mind."
Ball v. Bailey. No. 7:15-cv-3, 2015 WL 4591410, at
*9 (W.D. Va. July 29, 2015) (applying the subjective test in
the context of alleged sexual abuse by a prison guard)
(quoting Boddie v. Schnieder. 105 F.3d 857, 861 (2d
Cir. 1997)); however, if defendants knew of the substantial
risk and acted reasonably in response, they may not be held
liable, even if plaintiffs can show that they ultimately
suffered some harm, Farmer, 511 U.S. at 844.
Objective Prong: Substantial Risk of Harm
respect to the first, objective prong of their Eighth
Amendment claim, plaintiffs argue that the pre-2015 death row
conditions deprived them of the fundamental human needs of
environmental stimulation and social interaction, which
caused them serious emotional, psychological, and physical
harm. Orig. Pl. Mem. 1-2. Defendants respond that the
conditions of confinement were not objectively intolerable
and did not subject plaintiffs to any harm or risk of harm.
Orig. Def. Mem. 24-30. The question for the Court is whether
the deprivation of human contact and stimulation was an
"extreme" deprivation-that is, whether it caused a
"serious or significant physical or emotional
injury" or the "substantial risk" of such an
the parties dispute whether the pre-2015 conditions
constituted "solitary confinement" in "the
legal sense." Id. at 25-26. Defendants argue
that the Supreme Court has "interpreted" the phrase
"solitary confinement" to mean the "complete
isolation of the prisoner from all human society, and his
confinement in a cell of considerable size, so arranged that
he had no direct intercourse with or sight of any human
being, and no employment or instruction." Id.
(quoting In re Medley, 134 U.S. 160, 167 (1890)).
Similarly, they claim that Justice Kennedy has defined
"solitary confinement" as spending "20 years
or more in a windowless cell no larger than a typical parking
spot for 23 hours a day; and in the one hour when [the
inmate] leaves it, he likely is allowed little or no
opportunity for conversation or interaction with
anyone." Davis v. Avala. 135 S.Ct. 2187, 2208
(2015) (Kennedy, J., concurring); see also Orig.
Def. Opp. [Dkt. No. 125] 14-15. Accordingly, they claim that
plaintiffs were not "placed in 'solitary
confinement'" because they "were not
overwhelmingly deprived of' direct intercourse with or
sight of any human being.'" Orig. Def. Mem. 26
(quoting In re Medley, 134 U.S. at 167). Instead,
defendants argue, plaintiffs had interaction with each other,
with prison officials, and with outside visitors and
attorneys and were able to entertain themselves with the
personal property they could possess in their cells. See
Id; Orig. Def. Opp. 15.
Court previously found that the 71 square foot cells measure
less than half the size of a parking space, that the window
is a "window in name only, " and that the
"rudimentary privileges" provided to death row
inmates did not "mitigate the overwhelming fact of
isolation." Prieto. 2013 WL 6019215, at *1,
The limited communication, stimulation, and contact provided
to plaintiffs before 2015 does not overcome plaintiffs'
showing that the vast majority of their time-almost every
hour of the day-was spent alone, in a small, practically
windowless, cell. When they were outdoors for five hours a
week, they remained alone in an outdoor cage. Although they
had access to television, music, and books, they had no
access to congregate religious, educational, or social
sources provide different definitions for "solitary
confinement" and associated terms. For example, when
describing particularly restrictive prison conditions, the
United States Department of Justice's Report and
Recommendations Concerning the Use of Restrictive Housing
(Jan. 2016) ("DOJ Report") declines to use the term
"solitary confinement" because it can be misleading
and instead refers to segregated housing as "restrictive
housing" and "segregation." DOJ Report 3. The
Report defines restrictive housing as "any type of
detention that involves three basic elements:"
"[r]emoval from the general inmate population, "
"[p]lacement in a locked room or cell, " and
"[i]nability to leave the room or cell for the vast
majority of the day, typically 22 hours or more."
Id. This definition corresponds with the pre-2015
conditions at VDOC, where prisoners spent between 23 and 24
hours per day in their cells, although it does not account
for the presence or absence of other aspects of the pre-2015
policies like telephone privileges.
plaintiffs have sufficiently shown that the pre-2015
conditions of confinement constituted "solitary
confinement" or "segregated" or
"restricted" housing, as those terms are understood
by contemporary observers. But in any event, whether the
conditions at issue here meet Justice Kennedy's (or any
specific court's or expert's) description of
"solitary confinement" is irrelevant. To the extent
plaintiffs can show that they were sufficiently deprived of a
basic human need such as human interaction and that the
deprivation caused a significant harm or risk of harm, they
have made out at least the objective prong of an Eighth
Amendment claim. Trying to determine whether these conditions
are, under any given metric, worse or better than the
conditions discussed in Avala or in In re
Medley is missing the forest for the trees.
to the substantive objective inquiry, defendants argue that
Fourth Circuit precedent establishes that "the isolation
inherent in administrative segregation or maximum custody is
not itself constitutionally objectionable, " even when
it lasts for an "indefinite duration." Orig. Def.
Mem. 25 (citing Mickle v. Moore (In re Long Term Admin.
Segregation of Inmates Designated as Five
Percenters). 174 F.3d 464, 471-72 (4th Cir. 1999); and
Sweet v. S.C. Dep'tof Corr.. 529 F.2d 854, 861
(4th Cir. 1975)). The plaintiffs in Mickle were
subjected to conditions even more restrictive than those in
place on death row before 2015: they were "confined to
their cells for twenty-three hours per day without radio or
television, " they "receive[d] only five hours of
exercise per week, " and they were not permitted to
"participate in prison work, school or study
programs." Mickle, 174 F.3d at 471. The
Mickle court also found that the prison's
"periodic visits by medical personnel" and policies
allowing "referral of inmates displaying mental health
problems for treatment" showed that the officials were
not deliberately indifferent. Id. at 472. Similarly,
the Sweet court ruled that without "other
illegitimate deprivations, " simply isolating inmates
and restricting stimulation and activity were constitutional.
Sweet. 529 F.2d at 861.
addition, defendants argue that the plaintiffs have objected
only to "amorphous ... overall conditions"-rather
than the "deprivation of a single, identifiable human
need such a[s] food, warmth, or exercise"-and therefore
their claim fails. Orig. Def. Reply 4 (quoting Wilson v.
Seiter. 501 U.S. 294, 304 (1991)).
response, plaintiffs argue that defendants rely on
"stale Eighth Amendment jurisprudence" and that the
Court must instead evaluate the pre-2015 conditions according
to the "evolving standards of decency that mark the
progress of a maturing society." Orig. Pl. Opp. [Dkt.
No. 124] 8 (formatting and capitalization altered) (quoting
Hall v. Florida. 134 S.Ct. 1986, 1992 (2014)). These
standards, plaintiffs contend, have changed greatly, not only
since 1890 when In re Medley was decided, but also
in the decades since Sweet and Mickle were
decided. Id. at 9. In this vein, the plaintiffs
provide supplementary materials pertaining to President
Obama's decision to ban the use of solitary confinement
for juveniles in federal prisons. Orig. Pl. Supp. [Dkt No.
the rapidly evolving information available about the
potential harmful effects of solitary confinement-and the
explicit incorporation of contemporary standards of decency
into the Eighth Amendment standard-it is clear that this
Court is not bound by the decades-old determinations made by
the Fourth Circuit and the Supreme Court on which defendants
rely. Instead, as the following discussion makes clear, there
is a substantial quantity of relatively recent information
demonstrating the ...