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Porter v. Clarke

United States Court of Appeals, Fourth Circuit

May 3, 2019

THOMAS PORTER; ANTHONY BERNARD JUNIPER; MARK LAWLOR, Plaintiffs - Appellees,
v.
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

          Appeal 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)

         ARGUED:

          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.

         ON BRIEF:

          Mark 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 Appellants.

          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.

          David 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 Rutherford Institute.

          Eden Heilman, Claire Guthrie Gastañaga, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC., Richmond, Virginia, for Amicus American Civil Liberties Union Foundation of Virginia, Inc.

          John W. Whitehead, Doug R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia, for Amicus The Rutherford Institute.

          Daniel M. Greenfield, Roderick and Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Amici Curiae Professors and Practitioners of Psychiatry and Psychology.

          Before NIEMEYER, KING, and WYNN, Circuit Judges.

          WYNN, CIRCUIT JUDGE

         Defendants 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.

         I.

         Plaintiffs 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 523.

         In 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 recreation enclosures.

         Under 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.

         The 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.

         Two inmates housed on death row, Plaintiff Porter and former Plaintiff Ricky Gray, [1] 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.

         In 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 declaratory relief.

         On 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.

         II.

         On 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.

         A.

         At the 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 Cir. 2018).

         The 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).

         1.

         To 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)).

         More 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).

         In 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.

         Numerous 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.

         Notwithstanding 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.

         Courts 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 price.").

         Likewise, 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 confinement.").

         Of 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 rocket science.").

         We 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 ...


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