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' MOTIONS TO TRANSFER. ECF Nos. 39, 44. For
the reasons set forth below, the Western District of Virginia
is the more logical and convenient forum in which to
adjudicate the claims at bar. Accordingly, the MOTION TO
TRANSFER, ECF Nos. 39, 44, will be granted. The MOTION TO
DISMISS FOR IMPROPER VENUE, ECF No. 13, will be denied.
SUMMARY OF PERTINENT ALLEGATIONS
"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. Following a 2006 altercation
with his cellmate at Wallens Ridge State Prison, ``VDOC sent
Reyes to Red Onion [State Prison] and placed him in the
long-term solitary confinement unit, where he remains to this
day." Id. ¶¶ 67-71, 72. Red Onion is
located in the Western District of Virginia.
Alleged Acts And Omissions Of The Defendants And
Defendants' Places Of Residence
is the Commissioner of the VDOC and sets policy for the VDOC,
including the long-term segregation policy at Red Onion State
Prison. Id. ¶ 165. "Defendant Clarke also
dictates the extremely harsh conditions of confinement for
prisoners in long-term solitary confinement, including 
Reyes." Id. ¶ 167. Clarke resides in the
Eastern District of Virginia, in Henrico County. ECF No. 40,
is the Chief of Corrections Operations for the VDOC. Compl.
¶ 170. Robinson "is responsible for approving
VDOC's long-term segregation policy and overseeing its
implementation." Id. Robinson resides in the
Eastern District of Virginia, in Powhatan County. ECF No. 40,
Kiser And Barksdale
is the Warden of Red Onion. Compl. ¶ 173. Barksdale was
the Warden of Red Onion prior to Kiser. Id. ¶
178. Kiser and Barksdale failed ``to ensure that limited
English proficiency-prisoners such as  Reyes have adequate
translation services." Id. ¶¶ 173,
178. Kiser and Barksdale were and are "directly
responsible for decisions removing prisoners from Level S
(i.e., long-term segregation) classification to a less
restrictive security level." Id.
and Barksdale were and are "responsible for training
correctional staff and for exercising oversight to ensure
that [their] correctional officers perform their duties in a
professional manner . . . ." Id. ¶¶
174, 179. Despite receiving "numerous reports of
correctional officers refusing to take prisoners in solitary
confinement outside for recreation or to showers and of
correctional officers giving prisoners empty food
trays," Kiser and Barksdale took no steps to correct
this misconduct. Id. Kiser resides in the Western
District of Virginia, in Russell County. ECF No. 40, at 5.
Barksdale resides in the Western District of Virginia, in
Charlotte County. Id.
became Warden of Red Onion in 2011. Compl. ¶ 180. As
Warden, Mathena had the same failing as Barksdale and Riser
described above. Id. ¶¶ 180, 181.
Defendant Mathena currently works at VDOC headquarters as the
head of Security Operations. As Security Operations Manager,
he serves as the Chairman of the External Review Team. In
this role, Defendant Mathena performs biannual reviews of
each prisoner assigned to Red Onion at Security Level
``S" (i.e., in solitary confinement) to determine if the
prisoner should move out of solitary confinement.  Reyes
remains in solitary confinement due to Defendant
Mathena's failure to perform a meaningful review of the
necessity of  Reyes'[s] continued isolation.
Id. ¶ 182. Mathena resides in the Eastern
District of Virginia, in Goochland County. ECF No. 40, at 5.
is the Chief of Housing and Programs for Red Onion. Compl.
¶ 183. "Defendant Gallihar has abdicated his
responsibility as a member of the (DTT) to advise the
Regional Operations Chief and Warden that  Reyes does not
meet the criteria for segregation." Id.
Defendant Gallihar also serves on the Building Management
Committee and bears responsibility for the decisions of the
Building Management Committee. In this role, Defendant
Gallihar is responsible for assigning, or in the alternative,
for recommending offenders to SM 0,  SM 1, and SM 2 privilege
levels and for discussing and preparing recommendations for
the ICA and DTT. Defendant Gallihar has failed to
meaningfully assess and review  Reyes' [s] status, and
so has caused  Reyes to remain in segregation at the lowest
privilege level for years.
Id. ¶ 184. Gallihar resides in the Western
District of Virginia, in Wise County. ECF No. 40, at 5.
6. Duncan and Collins
Defendants Duncan and Collins performed Administrative
Reviews of  Reyes'[s] segregation ICA reviews. They
abdicated their responsibility to perform meaningful reviews
of  Reyes'[s] continued placement in solitary
confinement. At each 90-day review, they merely rubberstamped
the recommendation of lower-level staff. Due to their failure
to perform even a modicum of investigation or oversight into
 Reyes'[s] solitary confinement status,  Reyes spent
years in solitary confinement ....
Defendant Duncan is the former C-Building Unit Manager.
Defendant Collins is the current C-Building Manager. As Unit
Manager, Defendants Duncan and Collins are responsible for
ensuring that the correctional officers in their unit perform
their duties in a professional manner that follows
correctional policy and that respects the inherent dignity of
the incarcerated persons in their care. Despite numerous
reports of correctional officers refusing to take prisoners
on their units outside for recreation or to showers and
giving prisoners empty food trays -- including reports
specific to  Reyes -- Defendants Duncan and Collins took no
steps to correct this misconduct. By failing to take
corrective action to ensure the correctional staff under
their supervision provide prisoners appropriate care,
Defendants Duncan and Collins all but ensured that
mistreatment of the kind  Reyes endured would occur.
Compl. ¶¶ 185-86 (emphasis omitted). Duncan resides
in the Western District of Virginia, in Wise County. ECF No.
40, at 5. Collins resides in the Western District of
Virginia, in Dickenson County. Id. at 6.
7. Justin Kiser, Gilbert, Adams, and Lambert
Defendants Justin Kiser, Gilbert, Adams, and Lambert are or
have been members of the ICA responsible for reviewing the
continued segregation of  Reyes during his time in solitary
confinement. They have abdicated their responsibility to
perform meaningful reviews of  Reyes'[s] continued
placement in solitary confinement. At each 90-day review,
they merely retained  Reyes in segregation at the lowest
privilege level due to  Reyes' [s] purported failure to
participate in programming. Due to their insistence that 
Reyes complete the Step-Down Program journal series,  Reyes
spent years in solitary confinement in unconstitutional
conditions and suffered lasting psychological damage.
Compl. ¶ 187 (emphasis omitted). Justin Kiser and
Lambert reside in the Western District of Virginia, in
Dickenson County. ECF No. 40, at 6. Gilbert resides in the
Western District of Virginia, in Scott County. Id.
Adams resides in Eolia, Kentucky. Id.
Defendant Lee is a member of Central Classification Services.
He is responsible for approving prisoner transfers out of
long-term solitary confinement units for mental health
reasons. Due to Defendant Lee's refusal to approve the
transfer of  Reyes to a residential mental health unit
because of  Reyes'[s] inability to speak English, 
Reyes continues to suffer in unconstitutional conditions in
Compl. ¶ 188 (emphasis omitted). Lee resides in the
Western District of Virginia, in Roanoke City. ECF No. 40, at
9. Huff, Trent, and McDuffie
Defendants Huff, Trent[, ] and McDuffie are  Reyes'[s]
treating mental health professionals. They have failed to
address the obvious primary cause of  Reyes'[s] poor
mental health: his unending solitary confinement. As
qualified mental health professionals, Defendants Huff and
Trent serve on the Building Management Committee and Dual
Treatment Team, and are responsible for making
recommendations and decisions regarding  Reyes'[s]
ongoing solitary confinement. Defendants Huff, Trent[, ] and
McDuffie also have failed to perform a comprehensive mental
health evaluation of  Reyes so as to render a meaningful
diagnosis and develop a treatment plan. Defendants'
repeated failure to use translation services when
communicating with U Reyes places him at immense risk.
Defendants Huff, Trent[, ] and McDuffie refuse to designate
 Reyes as seriously mentally ill and functionally impaired,
despite a long history of psychotic behavior evident in the
medical record. As a result of Defendants'
unconstitutional conduct,  Reyes continues to suffer in
unconstitutional conditions in solitary confinement, and his
mental health will decline.
Compl. ¶ 189 (emphasis omitted). Trent resides in the
Western District of Virginia, in Wise County. ECF No. 40, at
6. Huff resides in Cumberland, Kentucky. Id.
McDuffie resides in Bountville, Tennessee. Id.
Defendant Herrick is the Director of Health Services for
VDOC. He is responsible for ensuring that all VDOC prisoners,
including  Reyes, have adequate access to health services.
On information and belief, Defendant Herrick has failed to
institute a policy requiring that all mental health staff use
interpretation services when communicating with limited
English proficiency prisoners such as  Reyes. Defendant
Herrick is well aware that VDOC has limited English
proficiency prisoners and that without interpretation
services, there exists a significant and unacceptable risk
that mental illness will go undiagnosed or misdiagnosed in
this population. Defendant Herrick is also aware that
long-term solitary confinement causes and exacerbates mental
illness. Yet Defendant Herrick failed to ensure that mental
health staff properly assess solitary confinement prisoners
for decompensation and advocate for the removal of prisoners
like  Reyes who have decompensated in such conditions. As a
result of Defendant Herrick's actions and omissions, 
Reyes continues to suffer in unconstitutional conditions in
solitary confinement, and his mental health will decline.
Compl. ¶ 190 (emphasis omitted). Herrick resides in the
Eastern District of Virginia, in Chesterfield County. ECF No.
40, at 6.
Solitary Confinement and the Step-Down Program
2011, VDOC began transitioning to the Step-Down or
`Pathways' Program with the purported goal of providing a
defined pathway for prisoners to transition out of long-term,
indefinite solitary. Under the Step-Down Program, there are
two pathways [out of solitary confinement]: Intensive
Management (IM) and Special Management (SM)." Compl.
¶ 58 (citation omitted). "Each pathway consists of
privilege levels 0, 1, and 2." Id.
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 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).
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 Kiser) 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.
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."
assigned Reyes to the SM pathway at Level 0 in December of
2012. Id ...