THOMAS PORTER; ANTHONY BERNARD JUNIPER; MARK LAWLOR, Plaintiffs - Appellees,
HAROLD W. CLARKE; DAVID ZOOK, Defendants - Appellants. and RICKY GRAY; IVAN TELEGUZ, Plaintiffs, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INCORPORATED; THE RUTHERFORD INSTITUTE; PROFESSORS AND PRACTITIONERS OF PSYCHIATRY AND PSYCHOLOGY, Amici Supporting Appellee.
Argued: December 13, 2018
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:14-cv-01588-LMB-IDD)
Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants.
Catherine Emily Stetson, HOGAN LOVELLS U.S. LLP, Washington,
D.C., for Appellees.
R. Herring, Attorney General, Victoria N. Pearson, Deputy
Attorney General, Margaret Hoehl O'Shea, Assistant
Attorney General, Toby J. Heytens, Solicitor General, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Kathryn M. Ali, Yuri Fuchs, Elizabeth C. Lockwood, W. David
Maxwell, Ryan J. Stephenson, HOGAN LOVELLS U.S. LLP,
Washington, D.C.; Victor M. Glasberg, VICTOR M. GLASBERG
& ASSOC., Alexandria, Virginia; Steven D. Rosenfield,
Jeffrey E. Fogel, Charlottesville, Virginia, for Appellees.
W. DeBruin, Washington, D.C., Jeffrey A. Atteberry, JENNER
& BLOCK LLP, Los Angeles, California, for Amici American
Civil Liberties Union Foundation of Virginia, Inc. and The
Heilman, Claire Guthrie Gastañaga, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF VIRGINIA, INC., Richmond,
Virginia, for Amicus American Civil Liberties Union
Foundation of Virginia, Inc.
W. Whitehead, Doug R. McKusick, THE RUTHERFORD INSTITUTE,
Charlottesville, Virginia, for Amicus The Rutherford
M. Greenfield, Roderick and Solange MacArthur Justice Center,
NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for
Amici Curiae Professors and Practitioners of Psychiatry and
NIEMEYER, KING, and WYNN, Circuit Judges.
Harold W. Clarke, in his official capacity as director of the
Virginia Department of Corrections, and David Zook, in his
official capacity as warden of Virginia's Sussex I State
Prison (collectively, "State Defendants"), appeal a
decision by the U.S. District Court for the Eastern District
of Virginia holding that conditions of confinement on
Virginia's death row violated the Eighth Amendment and
enjoining reinstatement of those conditions. The district
court held that the death row inmates' long-term
detention in conditions amounting to solitary confinement
created a "substantial risk" of psychological and
emotional harm and that State Defendants were
"deliberately indifferent" to that risk. See
Porter v. Clarke, 290 F.Supp.3d 518, 530-33 (E.D. Va.
2018). For the reasons that follow, we affirm.
Thomas Porter, Anthony Juniper, and Mark Lawlor
(collectively, "Plaintiffs") are housed on
Virginia's death row at Sussex I State Prison
("Sussex Prison"). Death row consists of two tiers,
with each tier holding twenty-two cells and three showers.
Porter, 290 F.Supp.3d at 522. Each death row inmate
is housed in a separate cell, and no inmates are housed in
adjacent cells. Each cell is 71 square feet- approximately
one-half the size of a parking space-and has a 10.5-foot-high
ceiling. Cells contain a bed, a small desk adjacent to the
bed, and a commode/sink combination. Each cell has a window
that is 5 inches high by 41.5 inches long, which is covered
by a wire mesh that allows natural light to pass through into
the cell. Each cell's door is made of solid steel,
includes a tray slot that is bolted shut when not in use, and
a "rectangular in-set window that allow[s] inmates to
look outside their cell into the pod." Id. at
November 2014-when Plaintiffs filed this lawsuit-two
documents governed Plaintiffs' conditions of confinement
on death row: Virginia Department of Corrections
("Corrections Department") Operating Procedure
460A, effective March 2010, and the Sussex Prison
Institutional Rules and Regulations for Offenders, effective
February 2010. These procedures and regulations allowed death
row inmates one hour of outdoor recreation five days a week,
and a ten-minute shower three days a week. During their
outdoor recreation, inmates were confined to individual
enclosures with concrete floors and enclosed by a steel and
wire mesh cage. Each enclosure measured 7.9 feet wide by 20
feet long-approximately the size of a parking space-and 10
feet high. Id. None of the enclosures had exercise
equipment. Inmates could not simultaneously use adjacent
the governing procedures and regulations, cells on death row
were always lit: during the day, cells were illuminated by a
main light mounted on the wall, and at night a low-level
night light provided illumination for security and safety
purposes. Inmates housed on death row could keep a television
and compact disc player in their cell and borrow approved
publications and library materials to read. Additionally,
inmates could request and use wireless telephones any day of
the week between 8:00 a.m. and 9:30 p.m.
governing regulations and procedures allowed death row
inmates to have non-contact visitation on weekends and state
holidays. Inmates also could request contact visitation with
immediate family members in "extreme circumstances"
once every six months, which request the warden had
unconstrained discretion to grant or deny. J.A. 997. In
practice, the warden would grant a request for contact
visitation only when an inmate was approaching
"death." J.A. 997. Additionally, inmates had
limited contact with prison staff. Corrections officers made
rounds through the death row pod to perform security checks
on inmates every thirty minutes and could-and sometimes
would- speak with inmates to see if they needed assistance or
had requests. Medical personnel and nurses also made rounds
through the pod twice a day to provide inmates with
medication. And death row inmates received visits from a
mental-health practitioner at least once a week, and case
counselors made rounds through the pod once a day.
inmates housed on death row, Plaintiff Porter and former
Plaintiff Ricky Gray,  were allowed out of their cells to perform
institutional jobs. "Other than these limited
out-of-cell interactions, death row inmates were generally
not permitted to leave their cells." Porter,
290 F.Supp.3d at 523. "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." Id. Due to
these restrictions, death row inmates spent between 23 and 24
hours per day in their cells. Id. at 528.
November 2014, Plaintiffs filed suit against Clarke, in his
official capacity as director of the Corrections Department,
and Keith Davis, who, at that time, served as warden of
Sussex Prison. Plaintiffs alleged that the then-existing
conditions of confinement on Virginia's death row
violated the Eighth Amendment and sought injunctive and
February 21, 2018, the district court awarded summary
judgment in Plaintiffs' favor on their Eighth Amendment
claim. Porter, 290 F.Supp.3d at 533. In reaching
that conclusion, the district court held that, under the
undisputed evidence, the conditions of confinement on
Virginia's death row-particularly inmates' prolonged
periods of isolation-"created, at the least, a
significant risk of substantial psychological or emotional
harm." Id. at 532. The district court further
held that, under the undisputed evidence, that State
Defendants were "deliberate[ly] indifferen[t]" to
that risk of harm. Id. at 533. The district court
awarded Plaintiffs injunctive and declaratory relief,
concluding that such relief was available under the Prison
Litigation Reform Act ("PLRA") and was necessary
because there "exist[ed] some cognizable danger of
recurrent violation." Id. at 534-42 (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953)). State Defendants timely appealed.
appeal, State Defendants argue that the district court erred
(A) in awarding summary judgment to Plaintiffs on their
Eighth Amendment claim and (B) in awarding Plaintiffs
injunctive relief. We address each argument in turn.
outset, State Defendants argue that the district court erred
in awarding Plaintiffs summary judgment on their Eighth
Amendment conditions of confinement claim. Summary judgment
is proper when there are no material disputes of fact and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). This Court reviews de novo a district
court's award of summary judgment. United States v.
Ancient Coin Collectors Guild, 899 F.3d 295, 312 (4th
Eighth Amendment, which prohibits infliction of "cruel
and unusual punishments," U.S. Const. amend. VIII,
applies to claims by prisoners against corrections officials
challenging conditions of confinement. See Scinto v.
Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)
("[T]he Eighth Amendment imposes a duty on prison
officials to 'provide humane conditions of confinement .
. . [and] ensure that inmates receive adequate food,
clothing, shelter, and medical care." (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994)));
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.
1996). Whether an inmate's conditions of confinement
amount to "cruel and unusual punishment" must be
measured against "the evolving standards of decency that
mark the progress of a maturing society." Estelle v.
Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958)). Like any other Eighth
Amendment claim, an Eighth Amendment conditions of
confinement claim has (1) "objective" and (2)
"subjective" components. Scinto, 841 F.3d
at 225 (citing Farmer, 511 U.S. at 834).
satisfy the "objective" prong, a plaintiff inmate
must "demonstrate that 'the deprivation alleged
[was], objectively, sufficiently serious.'"
Id. at 225. (quoting Farmer, 511
U.S. at 834). "To be 'sufficiently serious,' the
deprivation must be 'extreme'-meaning that it poses a
'serious or significant physical or emotional injury
resulting from the challenged conditions,' or 'a
substantial risk of serious harm resulting from . . .
exposure to the challenged conditions.'"
Id. (quoting De'Lonta v. Angelone, 330
F.3d 630, 634 (4th Cir. 2003)).
than a century ago, the Supreme Court recognized the adverse
consequences to inmates' mental health posed by prolonged
detention in conditions akin to solitary confinement.
According to the Court, "experience demonstrated"
that, when placed in isolation, "[a] considerable number
of prisoners fell, after even a short confinement, into a
semi-fatuous condition, from which it was next to impossible
to arouse them, and others became violently insane; others
still, committed suicide; while those who stood the ordeal
better were not generally reformed, and in most cases did not
recover sufficient mental activity to be of any subsequent
service to the community." In re Medley, 134
U.S. 160, 168 (1890).
recent years, advances in our understanding of psychology and
new empirical methods have allowed researchers to
characterize and quantify the nature and severity of the
adverse psychological effects attributable to prolonged
placement of inmates in isolated conditions materially
indistinguishable from the challenged conditions on
Virginia's death row. For example, a report submitted by
one of Plaintiffs' experts in clinical and forensic
psychology, Dr. Mark Cunningham, notes "that the
associated adverse psychological reactions to solitary
confinement detailed in th[e] literature include
psychotic-spectrum symptoms of paranoia and hallucinations;
mood-spectrum symptoms of depression, withdrawal, appetite
and sleep disturbance, fatigue and lethargy, and suicidal
ideation; anxiety spectrum symptoms of subjective distress,
feelings of impending doom, somatic complaints, dissociative
experience, and ruminative thoughts; affective lability
characterized by irritability, rage, and aggressive impulses;
and behavioral self-control symptoms of aggression, assaults,
and self-mutilation." J.A. 1041.
studies reveal that prolonged detention of inmates in
conditions akin to those Plaintiffs faced on Virginia's
death row also leads to "psychological
deterioration," including "'declines in mental
functioning, '" "'difficulties in thinking,
concentration and memory problems, and problems with impulse
control.'" J.A. 1042 (quoting Jesenia Pizarro &
Vanja M. K. Stenius, Supermax Prisons: Their Rise,
Current Practices, and Effect on Inmates, 84 Prison J.
248, 256 (2004)). Similarly, another expert in forensic and
clinical psychology retained by Plaintiffs, Dr. Michael
Hendricks, reports that "common adverse psychological
effects of isolation housing in prison and jail settings
(i.e., typically found to have been experienced by at least
half of inmates in these settings) include anxiety, headaches
and other psychosomatic symptoms, lethargy, insomnia,
decreased appetite, and nightmares." J.A. 925.
that scholars have conducted dozens of studies on the
psychological and emotional effects of solitary and
segregated confinement, the leading survey of the literature
regarding such confinement found that "there is not
a single published study of solitary or supermax-like
confinement in which nonvoluntary confinement lasted for
longer than 10 days, where participants were unable to
terminate their isolation at will, that failed to result
in negative psychological effects." J.A. 1041
(emphases added) (quoting Craig Haney, Mental Health
Issues in Long-Term Solitary and
"Supermax" Confinement, 49 Crime &
Delinquency 124, 132 (2003)). Based on this extensive body of
literature, scholars have concluded that "solitary
confinement has potentially serious psychiatric risks."
J.A. 1042 (quoting Pizarro & Stenius, supra at
256); see also Br. Amici Curiae Profs.
& Practitioners of Psychiatry & Psychology in Supp.
of Pls.-Apps. and Affirmance ("Amici Br.") at 8-9
("Scientific research, regardless of methodology, has
produced strikingly consistent results: the deprivation of
meaningful social contact and positive environmental
stimulation characteristic of solitary confinement subjects
prisoners to grave psychological and physiological
harms." (internal quotation marks omitted)). Notably,
State Defendants adduced no evidence refuting Plaintiffs'
expert evidence establishing the risks and serious adverse
psychological and emotional effects of prolonged solitary
confinement, or the surveys of the scholarly literature
supporting that evidence.
have taken note of this extensive-and growing-body of
literature. In recent years, Justice Kennedy and Justice
Breyer authored separate opinions highlighting the serious
psychological and emotional harm caused by segregated or
solitary confinement under conditions materially
indistinguishable from those that existed on Virginia's
death row. See Ruiz v. Texas, 137 S.Ct. 1246, 1247
(2017) (Breyer, J., dissenting from denial of stay of
execution) (stating that evidence demonstrated that the
petitioner, an inmate held on Texas's death row,
"ha[d] developed symptoms long associated with solitary
confinement, namely severe anxiety and depression, suicidal
thoughts, hallucinations, disorientation, memory loss, and
sleep difficulty"); Glossip v. Gross, 135 S.Ct.
2726, 2765 (2015) (Breyer, J., dissenting) (reviewing
literature and stating that "it is well documented that
. . . prolonged solitary confinement produces numerous
deleterious harms"); Davis v. Ayala, 135 S.Ct.
2187, 2210 (2015) (Kennedy, J., concurring) ("[R]esearch
still confirms what this Court suggested over a century ago:
Years on end of near-total isolation exact a terrible
this Court stated that "[p]rolonged solitary confinement
exacts a heavy psychological toll that often continues to
plague an inmate's mind even after he is
resocialized." Incumaa v. Stirling, 791 F.3d
517, 534 (4th Cir. 2015). And the Third Circuit recently
reviewed the "robust body of scientific research on the
effects of solitary confinement" and found a
"scientific consensus" that such confinement
"is psychologically painful, can be traumatic and
harmful, and puts many of those who have been subjected to it
at risk of long-term . . . damage." Williams v.
Sec'y Penn. Dep't of Corr., 848 F.3d 549, 566-67
(3d Cir. 2017), cert denied sub nom. Walker v.
Farnam, 138 S.Ct. 357 (2017), and cert denied sub
nom. Williams v. Wetzel, 138 S.Ct. 357 (2017); see
also, e.g., Grissom v. Roberts, 902 F.3d 1162,
1176-77 (10th Cir. 2018) (Lucero, J., concurring) (reviewing
academic literature and determining that "solitary
confinement, even over relatively short periods, renders
prisoners physically sick and mentally ill. . . . These
harms, which are persistent and may become permanent, become
more severe the longer a person is exposed to solitary
particular relevance, several courts have found-based on the
empirical evidence set forth above-that solitary confinement
poses an objective risk of serious psychological and
emotional harm to inmates, and therefore can violate the
Eighth Amendment. See, e.g., Palakovic v.
Wetzel, 854 F.3d 209, 225-26 (3d Cir. 2017)
("acknowledg[ing] the robust body of legal and
scientific authority recognizing the devastating mental
health consequences caused by long-term isolation in solitary
confinement"); Ashker v. Brown, No. C 09-5796,
2013 WL 1435148, at *4-5 (N.D. Cal. Apr. 9, 2013);
Wilkerson v. Stalder, 639 F.Supp.2d 654, 678-79
(M.D. La. 2007) ("It is obvious that being housed in
isolation in a tiny cell for 23 hours a day for over three
decades results in serious deprivations of basic human
needs."); McClary v. Kelly, 4 F.Supp.2d 195,
208 (W.D.N.Y. 1998) ("[T]hat prolonged isolation from
social and environmental stimulation increases the risk of
developing mental illness does not strike this Court as
agree. The challenged conditions of confinement on
Virginia's death row- under which Plaintiffs spent, for
years, between 23 and 24 hours a day "alone, in a small
. . . cell" with "no access to congregate
religious, educational, or social programming"- pose a
"substantial risk" of serious ...