United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
Reyes, a Virginia inmate proceeding with counsel filed this
42 U.S.C. § 1983 action. The matter is before the Court
on Defendants' RULE 12 MOTION TO DISMISS. (ECF No. 15.)
For the reasons set forth below the RULE 12 MOTION TO DISMISS
(ECF No. 15) will be denied.
STANDARD FOR A MOTION TO DISMISS
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true
and the complaint is viewed in the light most favorable to
the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require  only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to "give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) . But this standard is not satisfied by
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts that are sufficient "to
raise a right to relief above the speculative level,"
id. (citation omitted), stating a claim that is
"plausible on its face," id. at 570,
rather than merely "conceivable." Id.
"A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678
(citing Bell Atl. Corp., 550 U.S. at 556). And, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson
v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.
2002); Iodice v. United States, 289 F.3d 270, 281
(4th Cir. 2002)).
SUMMARY OF ALLEGATIONS
stage of the proceedings, the factual allegations in the
Complaint must be taken as true, unless they are conclusory,
formulaic, or implausible. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In this case, the factual allegations
in the Complaint are neither conclusory, formulaic, or
implausible. Thus, they will be taken as true. All reasonable
inferences are extended to Reyes.
"is a 47-year-old native of El Salvador, who has been in
the custody of the [Virginia Department of Corrections,
("VDOC")] since 2001. Reyes is a monolingual
Spanish speaker, and is unable to read or write in any
language." Compl. ¶ 16. Reyes arrived at Red Onion
State Prison ("Red Onion") in June of 2001 and
remained there until July of 2003 when he was transferred to
Wallens Ridge State Prison ("Wallens Ridge") and
placed in the general population. Id. ¶ 67.
February 24, 2006, while at Wallens Ridge Reyes was assaulted
by his cellmate. Id. ¶ 68. "Reyes was left
bloodied and naked on the floor of his cell. He suffered
broken teeth and a head injury." Id. Reyes was
charged with assault by VDOC officials. Id. ¶
69. "Following the assault [apparently in 2006], VDOC
sent  Reyes [back] to Red Onion and placed him in the
long-term solitary confinement unit, where he remains to this
day." Id. ¶ 72.
Reyes's Confinement At Red Onion
Red Onion: The Facility And Confinement There
"VDOC constructed Red Onion ... as a 'supermax'
prison .... '[A] totally locked down facility, where most
offenders remain in the cell 23 hours a day, seven days a
week.'" Id. ¶¶ 53-54 (citation
omitted).) "The architectural design of Red Onion
emphasizes isolation and total control. The segregation cells
are isolating by design, featuring solid steel doors, wide
distances separating cells opposite one another, and single
occupancy recreation cages." Id. ¶ 56.
The only opportunity for prisoners in solitary confinement to
communicate with one another is to speak to prisoners who
share a ventilation opening. The practice is called
'getting on the vent,' and in this way prisoners can
speak to a maximum of three other persons: the person in the
cell directly beside his and the two men housed either
directly above or below. Otherwise, prisoners may try to
communicate silently with prisoners on the opposite side of
the pod by standing at the narrow window in the door and
making hand signals.
Id. ¶ 57.
Attempts To Move Reyes From Solitary Confinement Prior To The
Institution Of The Step-Down Program
VDOC deemed  Reyes "not a threat to [Red Onion State
Prison] or staff." VDOC promoted  Reyes to Progressive
Housing, a setting aimed ostensibly at helping people
transition out of solitary confinement, for a brief period of
roughly four months. However, when  Reyes expressed fear of
having another cellmate and refused to leave his cell,
Defendants returned  Reyes to the long-term solitary
Id. ¶ 92 (alteration in original). Reyes
alleges that his refusal was a product of the paranoia that
he developed from his years in isolation. Id. ¶
93. Although “VDOC operates an entire unit for
prisoners who 'express resistance to out of cell
activities or a general population environment,' so as to
"reintegrate offenders into a general population setting
in preparation for advancement to a lower security level,
'" Reyes was not offered an opportunity move to that
unit. Id. ¶ 93 (citation omitted).
Once again, in September of 2010, VDOC staff concluded that
Reyes [was] "not ... a threat to the orderly operation
of this institution." In October 2010,  Reyes
declined to move to Progressive Housing out of fear and
paranoia. Instead of determining how best to reintegrate
 Reyes into general population after so many years of
solitary confinement, or assuring  Reyes that he would not
be forced to live with another cellmate who would assault
him, VDOC staff disciplined him for "disobeying an
order" and he stayed in solitary
Id. ¶ 94 (emphasis added) (punctuation
2011, Reyes was again approved for release to Progressive
Housing because the VDOC determined that Reyes was not a
threat to the orderly operation of Red Onion. Id.
¶ 95. "Nevertheless, [Reyes] remained in solitary
Reyes's "August 2011 segregation review, VDOC staff
decided that Reyes would remain in solitary confinement based
solely on two disciplinary offenses: the assault charge from
2006 and the disobeying-an-order charge for refusing a move
to progressive housing in 2010." Id. ¶ 97.
Thereafter, at Reyes's regular 90-day segregation
reviews, VDOC continued to keep Reyes in segregation based on
the above infractions and/or "a subsequent disciplinary
offense for failing to submit to a drug test when there was
no indication that Reyes had used drugs or even understood
the order to submit to a drug test." Id. ¶
The Step-Down Program
2011, VDOC began transitioning to the so-called
"Step-Down or 'Pathways' Program" with the
purported goal of providing a defined pathway for prisoners
to transition out of long-term, indefinite solitary
confinement. Under the Step-Down Program, there are two
pathways [out of solitary confinement]: Intensive Management
(IM) and Special Management (SM)." Id. ¶
58 (citation omitted). "Each pathway consists of
privilege levels 0, 1, and 2." Id.
to the VDOC's Step-Down Program "Operations
Strategy" manual, the conditions for inmates at Level 0,
the lowest level, were as follows for the SM pathway:
a. One hour of recreation per day outside in recreation
b. Three showers per week;
c. Two fifteen-minute phone calls per month;
d. One one-hour non-contact visitation per week;
e. No video visitation;
f. No television;
g. Shackled with dual escort whenever out of cell;
h. No. out-of-cell programming, law library access, or
i. Limited commissary list with no food items for purchase.
Id. ¶ 63 (footnote omitted). The VDOC recently
amended the policy to provide for two hours of recreation per
day, five days a week. Id. ¶ 63 n.8. In order
for an inmate to progress from Level 0, he must participate
in the Step-Down Program. Id. ¶¶ 59-60.
For inmates, such as Reyes, on the SM pathway, "[t]he
basic Step-Down Program consists of seven English-language
journals called 'the Challenge Series,' that purport
to change the behavior and mindset of prisoners to improve
their likelihood of success in general population. In-person
instruction accompanies journals three through seven."
Id. ¶ 61. Under the program, prisoners
"such as  Reyes are entitled to progressively earn
more privileges as they move through the program."
Id. ¶ 76.
Reyes Was Allegedly Improperly Classified To The SM
has been designated to SM pathway, which is intended for
display an institutional adjustment history indicating
repeated disruptive behavior at lower level
facilities, a history of fighting with staff or
offenders, and/or violent resistance towards a
staff intervention resulting in harm to staff, other
offenders without the intent to invoke serious harm or the
intent to kill, or serious damage to the facility,
and where reasonable intervention at the lower
security level have not been successful in eliminating
disruptive behaviors. Attachment A, O.P. 830.A.III.
Id. ¶ 73 (emphasis added). It is alleged that
Reyes does not and never has met "the criteria for
designation as an SM prisoner [and that] Reyes does not have
an extensive history of violence within VDOC."
Id. ¶ 74. Reyes's altercation, with his
cellmate in 2006 is his only incident of violence, and the
VDOC did not "attempt any 'reasonable
intervention' to manage Reyes at lower security
Defendants' Alleged Failure To Properly Review And
Advance Reyes's Out Of SH 0 Status
Reyes satisfied the behavioral prerequisites for progressing
in the Step-Down Program on the SM pathway, as
a non-English speaker, unable to read and write, and [with]
mental health limitations,  Reyes was unable to
participate in the journal series component of the
Step- Down Program, thereby making it impossible for him
to progress out of solitary confinement without
assistance or accommodations. And because of Red
Onion correctional officers' hostility towards
Spanish speakers and persons of Central American descent like
 Reyes, such assistance and accommodation have been
Id. ¶ 64 (emphasis added). Reyes was not moved
from SM 0 to SM 1 until June of 2018, seven years after the
Step-Down Program began. Id. ¶ 65. According to
Reyes, although the VDOC established procedures for reviewing
an inmate's segregation or solitary confinement status,
those reviews are essentially a sham. Id. ¶ 81.
Reyes alleges that, "[a]lthough multiple levels of
review ostensibly provide a veneer of procedure, they have
operated instead as rubberstamps of one another and of 
Reyes' [s] indefinite solitary confinement."
The VDOC's Prescribed Review Procedures
an SM prisoner,  Reyes is entitled to reviews of his
segregation classification and progress through the Step-Down
Program every 90 days by a designated staffer or staffers
known as the Institutional Classification Authority
(ICA)." Id. ¶ 77 (citing Attach. A).
"The Building Management Committee, comprised of mental
health and correctional staff with direct knowledge of the
prisoners in their custody, is responsible for making
recommendations to the ICA, including recommendations
regarding assignment of prisoners to privilege levels (0, 1,
or 2)." Id. ¶ 78.
The ICA reviews the progress of individual prisoners through
the IM and SM pathways as well as their on-going segregation
classification. For these segregation interim ICA reviews, a
reporting staff member first makes a recommendation as to
whether a prisoner should be retained in solitary
confinement, and if so, at what privilege level (0, 1, or 2).
On information and belief, this recommendation reflects the
decision of the Building Management Committee. The ICA then
reviews the staff recommendation internally before adopting
it. All interim segregation reviews are also reviewed by the
Facility Unit Head (currently Defendant Warden Riser) or his
Id. ¶ 79. Additionally, Reyes is
entitled to have his status in segregation reviewed by the
Dual Treatment Team (DTT) and by the External Review Team
(ERT) . The DTT is responsible for reviewing solitary
confinement classifications and making recommendations as to
whether prisoners are properly classified. The DTT also
reviews mental health assessments to determine appropriate
housing. The ERT reviews prisoners bi-annually to determine
if they are appropriately classified to segregation, if they
continue to meet criteria for the SM pathway, and if the DTT
has made appropriate decisions to advance the prisoner
through the Step-Down Program.
Id. ¶ 80.
The VDOC s Allegedly Ineffective Review Of The Necessity Of
Maintaining Reyes In Solitary Confinement
to Reyes, the failure to provide translation services renders
the ICA review process a farce because:
 Reyes does not receive Spanish-language notice of ICA
hearings and recommendations before ICA segregation
reviews occur, and so he has no meaningful opportunity to
contest the basis for his ongoing solitary confinement.
ICA segregation reviews occur at prisoners7 cell
doors and consist of VDOC staff telling the prisoner the
reporting staff's recommendation and asking for
a statement from the prisoner. VDOC staff do not
offer translation services for  Reyes during ICA
segregation reviews. As such,  Reyes does not
understand the reporting officer's recommendation,
nor can he provide a statement. He thus has no
meaningful opportunity to communicate his readiness to
transition out of solitary confinement to the ICA. Indeed, 
Reyes is not even aware when ICA reviews are occurring.
Unbeknownst to  Reyes, his inability to participate in
his own ICA review has been routinely used to justify his
continued solitary confinement, as Defendants have
faulted him for refusing to participate.
Moreover, the written decisions of the ICA are not
translated into Spanish or communicated orally to 
Reyes so that he might understand them.
Despite the directive that “[i]t is valuable for
Officers, Counselors, and the Unit Manager to communicate
with each offender routinely on their [Step-Down]
ratings," Attachment A, O.P. 830.A.IV.D.E.5.d, this is
not done with  Reyes.
For years Defendants denied  Reyes the opportunity to
progress out of solitary confinement on the sole ground that
 Reyes was not participating in the Step-Down Program. Yet
the Step-Down Program was not made available to  Reyes.
Id. ¶¶ 82-83, 85-87 (emphasis added)
(alterations in original).
further contends that the ERT and DTT provide "no
meaningful review or oversight of the ICA's segregation
retention decisions." Id. ¶¶ 88, 91.
He alleges that:
Prisoners do not attend their ERT reviews and are not
notified of ERT decisions. There is no right to appeal ERT
The DTT likewise fails to provide meaningful review or
oversight of segregation decisions. Prisoners do not attend
DTT reviews and are not aware when they occur. As with ERT
reviews, prisoners cannot appeal decisions of the DTT or
otherwise challenge them.
Id. ¶¶ 90-91.
Reyes's Segregation Reviews Under The Step-Down
assigned Reyes to the SM pathway at Level 0 in December of
2012. Id. ¶ 99. According to Reyes:
[e]very 90 days thereafter, ICA staff conducted pro forma
reviews that relied primarily on  Reyes'[s]
supposed refusal to participate in the newly created
Step-Down Program - a program that  Reyes could not
meaningfully participate in due to the lack of language
access and his mental health disabilities - to justify his
otherwise inexplicable retention in long-term solitary
Id. (emphasis added).
February 2018, Reyes received a blue book. Id.
Reyes does not understand what is in the book because it
is in English, and he cannot read it. On information and
belief, the blue book is part one of the Challenge
Series that he must complete to leave solitary
confinement. February 2018 was the first time  Reyes
received these course materials. At  Reyes'[s] June
2018 ICA hearing, the ICA retained  Reyes in solitary
confinement, but moved him from SM 0 to SM 1 for the first
time in six years, citing his participation in a Step-Down
Program that he does not comprehend.
Id. (emphasis added}.
alleged that, "[t]here is no penological purpose to 
Reyes'[s] retention in solitary confinement. During the
twelve and a half years that  Reyes has been in isolation,
he has accrued just seven disciplinary reports - none of them
involving incidents of violence. He has not had a
disciplinary report of any kind in over three years."
Id. ¶ 104.
The Conditions Of Reyes's Confinement
cell is six paces in length and three paces wide.
Id. ¶ 107., The cell is "furnished with a
steel bed, a steel table with no chair, and a steel toilet
with a sink at the top. There is no mirror inside his cell.
The fluorescent lights in his cell dim but do not turn off at
night." Id. "There is a small, narrow
window on the back wall of  Reyes' [s] cell that has
been darkened over so that he cannot see out of it. As such,
the window does not relieve  Reyes' [s] sensory
deprivation." Id. ¶ 119. The door to
Reyes's cell is solid steel "that masks all sound
except the voices of those in the cells directly beside and
below him. No. Spanish-speaking prisoner is housed in a cell
near enough for communication with  Reyes. His isolation
and lack of social interaction is nearly absolute."
Id. ¶ 108. "Due to  Reyes'[s] solitary
confinement, he cannot participate in congregate programming
or employment, and he has no access to religious services.
Until June 2018, he had no television inside his cell and no
way to watch television." Id. ¶ 126.
correctional officers treat Reyes with disdain because he is
Latino, does not speak English, and has mental
vulnerabilities. Id. ¶ 109. Correctional
Officer regularly call Reyes and other Latino prisoners
"wetbacks" and Mexicans. Id. ¶ 110.
ridicule his language, and they use his inability to speak
and understand English as an excuse to not take  Reyes
outside for recreation or to the shower. Correctional
officers understand that  Reyes is unable to advocate for
himself and that there will be no repercussions for their
Id. ¶ 111 (emphasis added).
Over the past several months, Defendants have begun taking 
Reyes out of his cell for what he believes are English
lessons. Correctional officers escort  Reyes in handcuffs
and shackles to a small, individual cage. One other prisoner
sits inside an identical small, individual cage nearby. The
instructor of these classes speaks only in English. When 
Reyes attempts to communicate in Spanish, the instructor
tells  Reyes: "You're in our country, speak our
 Reyes believes that he is expected to learn English
through this "class" so as to progress out of
solitary confinement. On information and belief,  Reyes is
unknowingly participating in the Step-Down Program. He copies
English words into the "Challenge Series" journals
without understanding the words he is transcribing.
At all other times,  Reyes is confined to a cell roughly
half the size of a parking space. He eats all meals in this
small, confined space, which is also where he uses the toilet
Id. ¶¶ 128-30.
alleged that Correctional officers:
have routinely deprived  Reyes of meals, including
for a full day at a time. For the seven years that
correctional staff relegated him to the most restrictive form
of solitary confinement,  Reyes was categorically
ineligible to work and earn money, and he was unable to
purchase food items through commissary. When  Reyes moved
to SM 1 in June 2018, he became eligible for an in-unit job.
SM 2 prisoners, however, have first priority for such
assignments, and  Reyes has not been assigned a job. His
nutrition is dependent on the whims of the correctional
officers who distribute food trays in his unit, and he often
goes hungry. He has lost a substantial and unhealthy
amount of weight while in solitary confinement due to
Defendants' failure to provide adequate food.
Id. ¶ 113 (emphasis added). "Reyes entered
solitary confinement weighing 186 1bs. He has lost nearly 50
1bs. since that time, and today weighs just 138 1bs."
Id. ¶ 112.
the majority of his time in isolation, VDOC policy provided
that solitary confinement prisoners received no more than one
hour of recreation five days a week. Recently, VDOC increased
the policy to provide two hours of recreation five days a
week." Id. ¶ 114 (citing Attach. C, O.P.
861.3.V.E.17.a (amended 1/16/2018)). Correctional officers,
however, often fail to adhere to these guidelines:
In 2017,  Reyes was taken out of his cell for
recreation an estimated three times for the entire year.
Now,  Reyes goes outside for recreation roughly once every
three-to-four weeks. For example,  Reyes did not go outside
for recreation once during the three-week period from on or
about February 27 through on or about March 20, 2018 and
again from on or about June 21 through on or about July 19,
Id. ¶ 115 (emphasis added).
 Reyes does go outside, he is relegated to a narrow cage
resembling a dog run, where he recreates alone."
Id. ¶ 116. "Every time  Reyes leaves his
cell, including . . . [going] to the recreation cage, he must
first submit to a cavity search." Id. ¶
117. "While shackling  Reyes, officers restrain him
with a dog tether. If he moves in a way the officers find
disobedient, correctional officers yank on the tether. 
Reyes finds the strip-search procedure humiliating and
degrading." Id. "Correctional staff
routinely apply handcuffs to  Reyes'[s] wrists and
ankles in a manner that is needlessly tight and that breaks
the skin so as to cause him pain. This is a common practice
at Red Onion that is used to dissuade prisoners from leaving
their cells." Id. ¶ 118.
Defendants' policy, Reyes, as a segregation prisoner, is
entitled to three showers per week. Id. ¶ 120.
Reyes is routinely denied the opportunity to leave
his cell to shower, with the result that he showers no more
than once or twice a week and often far less. Correctional
officers refuse to take him out for showers
until the odor emanating from his cell becomes
overwhelming. In 2017,  Reyes showered only a handful of
times over the course of the year. On ...