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Reyes v. Clarke

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

August 27, 2019

HAROLD CLARKE, et al., Defendants.


          Robert E. Payne, Senior United States District Judge

         Nicolas 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.


         "A 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).

         The 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)).


         At this 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.

         A. Reyes Generally

         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.[1] 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.

         On 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.

         B. Reyes's Confinement At Red Onion

         1. Red Onion: The Facility And Confinement There

         The "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.

         2. Attempts To Move Reyes From Solitary Confinement Prior To The Institution Of The Step-Down Program

         In May 2009,

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 confinement unit.

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 confinement.

Id. ¶ 94 (emphasis added) (punctuation corrected).

         In July 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 confinement. Id.

         At 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. ¶ 98.

         C. The Step-Down Program

         "In 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.

         According 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 cages;
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 religious services;
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.

         1. Reyes Was Allegedly Improperly Classified To The SM Pathway

         Reyes has been designated to SM pathway, which is intended for prisoners who

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 levels." Id.

         2. Defendants' Alleged Failure To Properly Review And Advance Reyes's Out Of SH 0 Status

         Although 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 withheld.

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." Id.

         (a) The VDOC's Prescribed Review Procedures

         "As 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 designee.

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.

         (b) The VDOC s Allegedly Ineffective Review Of The Necessity Of Maintaining Reyes In Solitary Confinement

         According 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).[2]

         Reyes 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 decisions.
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.

         (c) Reyes's Segregation Reviews Under The Step-Down Program

         The ICA 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 confinement.

Id. (emphasis added).

         In February 2018, Reyes received a blue book. Id. ¶ 102.

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}.

         It is 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.

         D. The Conditions Of Reyes's Confinement

         Reyes's 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.[3] "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.

         The 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. Correctional officers

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 actions.

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 language."[4]
[] 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 and sleeps.

Id. ¶¶ 128-30.

         1. Food

         It is 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.

         2. Recreation

         "For 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, 2018.

Id. ¶ 115 (emphasis added).

         "When [] 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.

         3. Showering

         Under Defendants' policy, Reyes, as a segregation prisoner, is entitled to three showers per week. Id. ¶ 120. Nevertheless,

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 ...

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