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Reyes v. Clarke

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

September 4, 2019

NICOLAS REYES, Plaintiff,
v.
HAROLD CLARKE, et al., Defendants.

          MEMORANDUM OPINION

          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' 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.

         I. SUMMARY OF PERTINENT ALLEGATIONS

         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] 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.[2] Red Onion is located in the Western District of Virginia.

         A. Alleged Acts And Omissions Of The Defendants And Defendants' Places Of Residence

         1. Clarke

         Clarke 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, at 5.

         2. Robinson

         Robinson 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, at 5.

         3. Kiser And Barksdale

         Riser is the Warden of Red Onion.[3] 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.

         Kiser 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.

         4. Mathena

         Mathena 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.

         5. Gallihar

         Gallihar is the Chief of Housing and Programs for Red Onion. Compl. ¶ 183.[4] "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, [5] 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.

8. Lee
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 solitary confinement.

Compl. ¶ 188 (emphasis omitted). Lee resides in the Western District of Virginia, in Roanoke City. ECF No. 40, at 6.

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.

10. Herrick
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.

         B. Solitary Confinement and the Step-Down Program

         "In 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.

         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.

         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).

         "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 Kiser) 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.

         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.

         The ICA assigned Reyes to the SM pathway at Level 0 in December of 2012. Id ...


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