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Porter v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

February 21, 2018

THOMAS PORTER, et al. Plaintiffs,
HAROLD W. CLARKE, Defendants.


          Leonie M. Brinkema United States District Judge

         Before 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.

         I. BACKGROUND

         All of 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, [1] 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.[2]

         This 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).[3] 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].

         When 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.[4] [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 library.

         VDOC 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.[5] 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.

         Plaintiffs 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. ¶ 10.

         According 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].

         Some of 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.

         In 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).

         After 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.

         Plaintiffs 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.


         A party 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.

         In 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").


         Before 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 punishment clause.

         A. Eighth Amendment Standard

         The 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).

         The 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 347.

         With 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."[6]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.

         B. Objective Prong: Substantial Risk of Harm

         With 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 injury.

         Preliminarily, 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.

         This 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, 7.[7] 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 programming.

         Different 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.

         Therefore, 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.

         Moving 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.

         In 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)).

         In 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. 128].

         Given 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 ...

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