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Porter v. Clarke, VA, Opinion, Death Row Conditions, 2018

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Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 1 of 37 PageID# 4031

Alexandria Division
No. 1:14-cv-1588 (LMB/IDD)


Before the Court are plaintiffs' and defendants' renewed cross-motions for summary
judgment. Plaintiffs argue that the conditions of confinement that existed on Virginia's death row
at the initiation of this litigation violated the Eighth Amendment of the United States
Constitution and that they are entitled to an injunction preventing defendants from returning to
those conditions. Defendants argue that those conditions of confinement were constitutional and
that this Court should decline to issue injunctive relief even if it finds a constitutional violation.
For the reasons that follow, the Court will grant summary judgment for plaintiffs and issue an
injunction preventing defendants from returning to the unconstitutional conditions of
All of the plaintiffs in this civil action have been convicted of capital murder and
sentenced to death and remain confined in a single unit ("death row") at Virginia's Sussex I State
Prison ("SISP") while their sentences are litigated. Plaintiffs Thomas Porter ("Porter"), Anthony
Juniper ("Juniper"), and Mark Lawlor ("Lawlor") have respectively spent over ten, twelve, and
six years on death row, and former plaintiff Ricky Gray ("Gray") had spent more than ten years

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on death row before being executed in January 2017. Compl. [Dkt. No. 1] 112; Answer [Dkt. No.
49] 112. Plaintiffs filed this civil action against defendants Harold Clarke ("Clarke"), the director
of the Virginia Department of Corrections ("VDOC"), and Keith W. Davis, the former warden of
SISP,' claiming that the conditions of their confinement on death row violate the Eighth
Amendment and the Fourteenth Amendment. The still-living plaintiffs are three of the four
inmates currently housed on death row in Virginia.2
This litigation is related to an earlier civil action brought by a former death row inmate,
Alfred Prieto, who claimed that his automatic placement onto death row, combined with the
severe conditions death row inmates faced, violated the Due Process Clause of the Fourteenth
Amendment. The Court found that the placement procedure violated the Fourteenth Amendment
and granted Prieto summary judgment. Prieto v. Clarke, No. 1:12-cv-1199, 2013 WL 6019215
(E.D. Va. Nov. 12, 2013). That judgment was reversed by the Fourth Circuit. See Prieto v.
Clarke, 780 F.3d 245 (4th Cir. 2015)? In response to that decision, the plaintiffs in this action
stipulated to the dismissal of their Fourteenth Amendment Claim. Stipulation of Voluntary
Dismissal [Dkt. No. 30].
When this civil action began, the conditions on death row were identical to those
described in Prieto. Death row inmates were housed in a separate "pod" from the ones housing
I In March 2016, the Court substituted David Zook, the current warden, for Keith Davis, the
former warden, under Fed. R. Civ. P. 25(d).
2 An additional death row inmate, Ivan Teleguz, had originally joined the action, but was
voluntarily dismissed on April 1, 2015. Notice of Dismissal of Pl. Ivan Teleguz [Dkt. No. 34].
Last year, Teleguz's sentence was commuted to life in prison without the possibility of parole,
removing him from death row.
3 Prieto filed a petition for a writ of certiorari, but while that petition was pending before the
Supreme Court, Prieto's execution date was set, leading Lawlor to seek leave to intervene in the
Prieto action to prevent it from becoming moot. On October 2, 2015, Prieto was executed, and on
October 13, 2015, the Supreme Court denied Lawlor's motion for leave to intervene and
dismissed Prieto's petition for writ of certiorari as moot. Prieto v. Clarke, No. 15-31, 2015 WL
4105028 (Oct. 13, 2015).

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the general population of the prison. This pod consisted of two tiers, each holding 22 cells and
three showers. Orig. Def. Mem.4 [Dkt. No. 110] Ex. 1 ("Clarke Aff.") ¶ 11. The cells' size of 71
square feet, with a 10.5 foot-high ceiling, was comparable to the size of cells housing general
population inmates; however, unlike those inmates, death row inmates were isolated from other
inmates in that they did not share cells and were not housed in adjacent cells. Id. ¶¶ 12-13;
Compl. 115; Answer ¶ 5. The cells had windows that were 5 inches high by 41.5 inches long and
covered by wire mesh, although natural light came through and inmates could see out of them.
Clarke Aff. 1114. Each cell door had a rectangular in-set window that allowed inmates to look
outside of their cell into the pod. Id. ¶ 15. The doors were not soundproof, and inmates did
attempt to communicate to other inmates while in their cells, but there is disagreement over how
effectively they could do so. See id. ¶ 15; Orig. Pl. Mem. [Dkt. No. 115] Ex. 7 ("Hendricks
Report") 11. While in their cells, inmates were permitted to have a television and a compact disc
player, and they could request books from the law library.
VDOC Operating Procedure 460A ("OP 460A"), effective March 1, 2010, governed the
daily lives of death row inmates, as did the SISP Institutional Rules and Regulations for
Offenders, effective February 3, 2010. Clarke Aff. ¶¶21-22. Under these regulations, death row
inmates were allowed one hour of outdoor recreation five days per week, but such recreation was
confined to individual enclosures that measured 7.9 feet by 20 feet and lacked any exercise
equipment. Id. ¶ 23. During that outdoor recreation time, some plaintiffs coordinated exercises
with one another, despite not being permitted to use adjacent enclosures. Plaintiffs were also
Due to the history of this case, there are two full sets of briefing: the parties' original (2015)
summary judgment briefs, which mainly address the substantive Eighth Amendment question,
and the parties' renewed (2017) summary judgment briefs, which mainly address whether
plaintiffs are entitled to injunctive relief if they can demonstrate an Eighth Amendment violation.
For purposes of clarity, the 2015 briefs will be denoted as "Orig." and the 2017 briefs will be
denoted as "Ren."

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permitted to leave their cells to shower at least three times each week, and two inmates, Porter
and Gray, were allowed out of their cells to perform their institutional jobs as houseman and
barber, respectively. Id. ¶¶25-28. Visitation was limited to noncontact visitation on weekends
and approved holidays; however, an inmate could request contact visitation, which the warden
had the discretion to grant or deny. Id. ¶ 51.5 Plaintiffs also had access to wireless telephones that
could be brought to their cell and used any day of the week between 8:00 a.m. and 9:30 p.m.,
with each call generally limited to 20 minutes. Id. Ili 43-44. Other than these limited out-of-cell
interactions, death row inmates were generally not permitted to leave their cells. 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. Cf. OP 460A; Prieto, 2013 WL 6019215, at *1.
Plaintiffs had interaction with prison staff, including mental health counselors, and could
have essentially unlimited contact visitation with their attorneys. Corrections officers made
rounds through the unit every 30 minutes and were allowed to converse with the inmates,
medical personnel came through the pod twice each day, nurses came through the pod twice each
day to perform a "pill pass," the mental health practitioner visited once each week, each inmate's
case counselor visited the pod daily, and inmates could request medical or mental health care at
any point as well as meet with the chaplain as frequently as they wanted. Clarke Aff. in 30-38.
Each inmate was screened for mental health problems upon entering the facility for the first time
and received a mental health code that was reviewed at least annually. Orig. Def. Mem. Ex. 4
IT 7-8. According to the results of this screening, Porter and Juniper were (as of 2015) classified

In practice, the SISP warden at the time, Keith Davis, only approved contact visits when an
inmate was about to be executed or was otherwise "on his deathbed." Orig. Pl. Mem. Ex. 8, at
100, 119.

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as MH-0, meaning they had no mental health issues or need for treatment in the preceding year,
and Lawlor was classified as MH-2, meaning he had mild to moderate, but stable, mental health
issues. Id. ¶ 10.
According to Clarke, he began considering changes to some of these policies as early as
2011 but decided not to move forward with any changes after the Prieto litigation began in 2012;
however, in mid-2014, he began solidifying plans to implement changes and decided to move
forward with those changes even after this civil action began. Clarke Aff. ¶1157-58. On August 6,
2015, Zook approved a number of interim rules and regulations for death row. Id. ¶ 59. In light
of these changes, the Court granted the parties' motion to stay the litigation and to refer the
matter to mediation should any disagreements remain after the changes were implemented. See
Order [Dkt. No. 88].
Some of the changes took effect immediately. By the initial round of summary judgment
briefing, inmates were permitted to have contact visitation with immediate family members one
day per week for one and a half hours at a time, while still being permitted to have non-contact
visitation on weekends and holidays with immediate family members and one approved nonfamily member. Outdoor recreation time was increased to 90 minutes five days each week;
showers became daily; and plaintiffs were allowed to congregate indoors for one hour each day,
without restraints and in groups of up to four inmates at a time. This indoor congregation
occurred in a newly screened off area of the death row pod that contained a television, two tables
with seating, a bench, various games, and a JPAY kiosk that enabled inmates to download music,
purchase books and movies, and send e-mails. The interim regulations anticipated that the day
room would be used "for congregate religious services, behavioral programming, and additional


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employment opportunities for Death Row Offenders," and at least one additional job for inmates
was created with at least one more anticipated. See Stay Def. Mem. [Dkt. No. 85] Ex. 1.
In addition to the immediate changes, the interim regulations called for the construction
of a covered outdoor recreation yard that would include two sections, each equipped with a
basketball court and stationary exercise equipment, in which groups of up to four death row
inmates could congregate. Clarke Aff. ¶ 57-60. Although the interim regulations anticipated that
construction of the recreation yard would be completed by October 1, 2015, it had not been
completed by the time the original summary judgment motions were filed. See Orig. Pl. Mem.
Ex. 3 1123. Since then, the construction has been completed and death row inmates may now use
the outdoor recreation yard; in addition, the interim regulations have been adopted into final
regulations, which took effect in June 2016. See Dkt. No. 161-1 ¶¶ 12-13; id. Ex. 8 (Operating
Procedure 425.A).
After failing to resolve the litigation, the parties filed cross-motions for summary
judgment, primarily focusing on whether the prior conditions of confinement violated the Eighth
Amendment. Based on the improvements made by defendants to the death row conditions, which
satisfied plaintiffs' demands, the Court issued an Order and Memorandum Opinion, in which it
found that the adoption of the interim regulations and the physical improvements had rendered
plaintiffs' action moot. See Order & Mem. Op. [Dkt. Nos. 166 & 167]. As such, the Court denied
plaintiffs' motion for summary judgment, granted defendants' motion, and ordered that judgment
be entered in favor of defendants. Id.
Plaintiffs appealed to the Fourth Circuit, see Dkt. No. 171, which reversed that decision
and remanded, holding that under the voluntary cessation doctrine, plaintiffs' action was not
constitutionally moot, see Dkt. No. 174; Porter v. Clarke, 852 F.3d 358 (4th Cir. 2017). On

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remand, plaintiffs engaged in limited additional discovery and the parties have filed new briefs
focusing "on the question of whether equitable relief would be appropriate, presupposing (but
not conceding) the existence of a constitutional violation." Dkt. No. 189. Both parties have
expressly adopted and reincorporated their original briefing on the merits of the Eighth
Amendment claims. Id. These renewed motions are now before the Court.


A party is entitled to summary judgment if the party can show "that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). A genuine dispute of material fact exists "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). In general, bare allegations or assertions by the nonmoving party are not
sufficient to generate a genuine dispute; instead, the nonmoving party must produce
"significantly probative" evidence to avoid summary judgment. Abcor Corp. v. AM Intl, Inc.,
916 F.2d 924, 929-30 (4th Cir. 1990) (quoting Anderson, 477 U.S. at 249). That being said, in
ruling on a motion for summary judgment, a court should accept the evidence of the nonmovant,
and all justifiable inferences must be drawn in her favor. Anderson, 477 U.S. at 255.
In determining whether to grant or deny injunctive relief, the district court must exercise
its equitable discretion. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Because
injunctive relief is equitable, "[f]lexibility rather than rigidity has distinguished it." Weinberger
v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (internal quotation marks omitted). An injunction
is appropriate where the plaintiff demonstrates he has suffered an irreparable injury, remedies at
law cannot compensate for that injury, balancing the hardships between the parties inclines in
favor of an equitable remedy, and the public interest is not disserved by an injunction. eBay, 547

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U.S. at 391. In addition, if a defendant has voluntarily discontinued challenged conduct, an
injunction is permissible as long as "there exists some cognizable danger of recurrent violation."
United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). Moreover, in the prison conditions
context, any injunction must conform with the requirements laid out in the Prison Litigation
Reform Act ("PLRA").
Before determining whether injunctive relief is available to plaintiffs, the Court must first
determine whether plaintiffs have proven their substantive Eighth Amendment claim: that the
conditions of confinement on death row before 2015 violated the Eighth Amendment's cruel and
unusual punishment clause.
A. Eighth Amendment Standard
The Eighth Amendment's prohibition of "cruel and unusual punishments" applies to the
treatment of prisoners and the conditions of their confinement. Williams v. Benjamin, 77 F.3d
756, 761 (4th Cir. 1996). To make out an Eighth Amendment claim, plaintiffs must demonstrate
both an objective and a subjective element. Id. First, they must prove "that objectively the
deprivation of a basic human need was sufficiently serious." Johnson v. Quinones, 145 F.3d 164,
167 (4th Cir. 1998) (internal quotation marks omitted). Second, they must prove "that
subjectively the prison officials acted with a sufficiently culpable state of mind." Id. (internal
quotation marks omitted).
The objective prong is "contextual and responsive to 'contemporary standards of
decency.' Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Estelle v. Gamble, 429 U.S. 97,
103 (1976)). To be deemed "sufficiently serious," defendants' conduct must have resulted "in the
denial of 'the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825,

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834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (discussing cases where
conditions were found unconstitutional "because they resulted in unquestioned and serious
deprivation of basic human needs")). The deprivation must have been "extreme," meaning that
the conditions caused a "serious or significant physical or emotional injury" or a "substantial
risk" of such an injury. De'Lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (quoting
De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)). Conditions that are not deemed cruel
and unusual according to contemporary standards cannot be found unconstitutional, even if they
are "restrictive and even harsh," because "they are part of the penalty that criminal offenders pay
for their offenses against society." Rhodes, 452 U.S. at 347.
With respect to the subjective prong, plaintiffs must show that defendants acted with
"deliberate indifference," a standard that "requires proof of more than mere negligence but less
than malice." Williams, 77 F.3d at 761. Specifically, plaintiffs must show that defendants
"actually [knew] of and disregard[ed] an objectively serious condition . . . or risk of harm."6
Angelone, 330 F.3d at 634. If the risk of harm was "obvious," the Court "may infer the existence
of this subjective state of mind." Hope v. Pelzer, 536 U.S. 730, 738 (2002). Similarly, if the
challenged conditions lacked any legitimate law enforcement or penological purpose, the

Defendants argue that because plaintiffs' suit is against defendants in their official capacities,
plaintiffs must show not that defendants themselves personally knew of and disregarded a risk of
harm, but that VDOC's policies and regulations demonstrated deliberate indifference. Orig. Def.
Mem. 21-22. Although defendants appear to misread the applicable Eighth Amendment
authority, see Farmer, 511 U.S. at 840-42, the distinction is not relevant here because plaintiffs
argue that VDOC's operating policies and regulations were developed and enforced by
defendants despite their actual knowledge of the harm or risk of harm to plaintiffs. Plaintiffs do
not premise their arguments solely on "the alleged professional failings of an individual
employee" simply because one of their arguments is that the mental health staff should conduct
more than "drive by" visits to inmates. Cf. Orig. Def. Reply [Dkt. No. 127] 10. Instead, the Court
understands their arguments as asserting that VDOC's policies regarding mental health care
were, as a whole, an insufficient response to the serious risk of harm to plaintiffs' mental health
that the various challenged conditions created.

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decision to impose and enforce the conditions may itself serve as "sufficient evidence of a
culpable state of mind." Ball v. Bailey, No. 7:15-cv-3, 2015 WL 4591410, at *9 (W.D. Va. July
29, 2015) (applying the subjective test in the context of alleged sexual abuse by a prison guard)
(quoting Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)); however, if defendants knew
of the substantial risk and acted reasonably in response, they may not be held liable, even if
plaintiffs can show that they ultimately suffered some harm, Farmer, 511 U.S. at 844.
B. Objective Prong: Substantial Risk of Harm
With respect to the first, objective prong of their Eighth Amendment claim, plaintiffs
argue that the pre-2015 death row conditions deprived them of the fundamental human needs of
environmental stimulation and social interaction, which caused them serious emotional,
psychological, and physical harm. Orig. Pl. Mem. 1-2. Defendants respond that the conditions of
confinement were not objectively intolerable and did not subject plaintiffs to any harm or risk of
harm. Orig. Def. Mem. 24-30. The question for the Court is whether the deprivation of human
contact and stimulation was an "extreme" deprivation—that is, whether it caused a "serious or
significant physical or emotional injury" or the "substantial risk" of such an injury.
Preliminarily, the parties dispute whether the pre-2015 conditions constituted "solitary
confinement" in "the legal sense." Id. at 25-26. Defendants argue that the Supreme Court has
"interpreted" the phrase "solitary confinement" to mean the "complete isolation of the prisoner
from all human society, and his confinement in a cell of considerable size, so arranged that he
had no direct intercourse with or sight of any human being, and no employment or instruction."
Id. (quoting In re Medley, 134 U.S. 160, 167 (1890)). Similarly, they claim that Justice Kennedy
has defined "solitary confinement" as spending "20 years or more in a windowless cell no larger
than a typical parking spot for 23 hours a day; and in the one hour when [the inmate] leaves it, he

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likely is allowed little or no opportunity for conversation or interaction with anyone." Davis v.
Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring); see also Orig. Def. Opp. [Dkt.
No. 125] 14-15. Accordingly, they claim that plaintiffs were not "placed in 'solitary
confinement' because they "were not overwhelmingly deprived of 'direct intercourse with or
sight of any human being.' Orig. Def. Mem. 26 (quoting In re Medley, 134 U.S. at 167).
Instead, defendants argue, plaintiffs had interaction with each other, with prison officials, and
with outside visitors and attorneys and were able to entertain themselves with the personal
property they could possess in their cells. See id.; Orig. Def. Opp. 15.
This Court previously found that the 71 square foot cells measure less than half the size
of a parking space, that the window is a "window in name only," and that the "rudimentary
privileges" provided to death row inmates did not "mitigate the overwhelming fact of isolation."
Prieto, 2013 WL 6019215, at *1, 7.7 The limited communication, stimulation, and contact
provided to plaintiffs before 2015 does not overcome plaintiffs' showing that the vast majority of
their time—almost every hour of the day—was spent alone, in a small, practically windowless,
cell. When they were outdoors for five hours a week, they remained alone in an outdoor cage.
Although they had access to television, music, and books, they had no access to congregate
religious, educational, or social programming.
Different sources provide different definitions for "solitary confinement" and associated
terms. For example, when describing particularly restrictive prison conditions, the United States

Defendants argue that plaintiffs and the Court should not rely on the Court's findings in Prieto
because it was a separate case based on different claims and a different record. Orig. Def. Opp.
16. Although Prieto did not implicate the Eighth Amendment, it did involve identical physical
conditions to the ones at issue in this litigation (i.e., the cells have gotten no bigger and the
windows have not changed) and therefore the Court's findings are informative in this action, if
not determinative. Moreover, defendants do not contest the truth of the facts underlying the
Court's findings in Prieto.

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Department of Justice's Report and Recommendations Concerning the Use of Restrictive
Housing (Jan. 2016) ("DOJ Report") declines to use the term "solitary confinement" because it
can be misleading and instead refers to segregated housing as "restrictive housing" and
"segregation." DOJ Report 3. The Report defines restrictive housing as "any type of detention
that involves three basic elements:" "[r]emoval from the general inmate population,"
"Nlacement in a locked room or cell," and "[i]nability to leave the room or cell for the vast
majority of the day, typically 22 hours or more." Id. This definition corresponds with the pre2015 conditions at VDOC, where prisoners spent between 23 and 24 hours per day in their cells,
although it does not account for the presence or absence of other aspects of the pre-2015 policies
like telephone privileges.
Therefore, plaintiffs have sufficiently shown that the pre-2015 conditions of confinement
constituted "solitary confinement" or "segregated" or "restricted" housing, as those terms are
understood by contemporary observers. But in any event, whether the conditions at issue here
meet Justice Kennedy's (or any specific court's or expert's) description of "solitary
confinement" is irrelevant. To the extent plaintiffs can show that they were sufficiently deprived
of a basic human need such as human interaction and that the deprivation caused a significant
harm or risk of harm, they have made out at least the objective prong of an Eighth Amendment
claim. Trying to determine whether these conditions are, under any given metric, worse or better
than the conditions discussed in Ayala or in In re Medley is missing the forest for the trees.
Moving to the substantive objective inquiry, defendants argue that Fourth Circuit
precedent establishes that "the isolation inherent in administrative segregation or maximum
custody is not itself constitutionally objectionable," even when it lasts for an "indefinite
duration." Orig. Def. Mem. 25 (citing Mickle v. Moore (In re Long Term Admin. Segregation of

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Inmates Designated as Five Percenters), 174 F.3d 464, 471-72 (4th Cir. 1999); and Sweet v. S.C.
Dep't of Corr., 529 F.2d 854, 861 (4th Cir. 1975)). The plaintiffs in Mickle were subjected to
conditions even more restrictive than those in place on death row before 2015: they were
"confined to their cells for twenty-three hours per day without radio or television," they
"receive[d] only five hours of exercise per week," and they were not permitted to "participate in
prison work, school or study programs." Mickle, 174 F.3d at 471. The Mickle court also found
that the prison's "periodic visits by medical personnel" and policies allowing "referral of inmates
displaying mental health problems for treatment" showed that the officials were not deliberately
indifferent. Id. at 472. Similarly, the Sweet court ruled that without "other illegitimate
deprivations," simply isolating inmates and restricting stimulation and activity were
constitutional. Sweet, 529 F.2d at 861.
In addition, defendants argue that the plaintiffs have objected only to "amorphous . . .
overall conditions"—rather than the "deprivation of a single, identifiable human need such a[s]
food, warmth, or exercise"—and therefore their claim fails. Orig. Def. Reply 4 (quoting Wilson
v. Seiter, 501 U.S. 294, 304 (1991)).
In response, plaintiffs argue that defendants rely on "stale Eighth Amendment
jurisprudence" and that the Court must instead evaluate the pre-2015 conditions according to the
"evolving standards of decency that mark the progress of a maturing society." Orig. Pl. Opp.
[Did. No. 124] 8 (formatting and capitalization altered) (quoting Hall v. Florida, 134 S. Ct. 1986,
1992 (2014)). These standards, plaintiffs contend, have changed greatly, not only since 1890
when In re Medley was decided, but also in the decades since Sweet and Mickle were decided.
Id. at 9. In this vein, the plaintiffs provide supplementary materials pertaining to President


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Obama's decision to ban the use of solitary confinement for juveniles in federal prisons. Orig. Pl.
Supp. [Dkt. No. 128].
Given the rapidly evolving information available about the potential harmful effects of
solitary confinement—and the explicit incorporation of contemporary standards of decency into
the Eighth Amendment standard—it is clear that this Court is not bound by the decades-old
determinations made by the Fourth Circuit and the Supreme Court on which defendants rely.
Instead, as the following discussion makes clear, there is a substantial quantity of relatively
recent information demonstrating the harms of extended solitary confinement that was not
available to the Fourth Circuit in 1999—or, of course, to the Supreme Court in 1890.8
To demonstrate the significant psychological and emotional harm that their solitary
confinement has caused, plaintiffs rely primarily on a group of expert reports. First, plaintiffs
submitted an expert report from Dr. Michael Hendricks, a clinical psychologist who evaluated
each of the four plaintiffs and reviewed numerous records to assess whether plaintiffs have
experienced any mental health consequences from the conditions of their confinement. See
Hendricks Report 1. Dr. Hendricks found that "each plaintiff has developed serious
psychological and/or physical distress and impairment in functioning" that "exceeds any distress
and impairment that was evident prior to each man's arrival on death row." Id. at 19. In
particular, prolonged isolation has "led to clinical levels of depression that include dysphoric
mood, constricted affect, hopelessness, feelings of worthlessness, anhedonia (loss of enjoyment
8 Because

the parties have not engaged in substantial additional briefing after this action was
remanded by the Fourth Circuit, the bulk of the cited "contemporary" understanding is from
2015 or early 2016. If anything, plaintiffs' claim has only become stronger in the last two years,
as recognition of the harms of solitary confinement has become more widespread. See, e.g., Ruiz
v. Texas, 137 S. Ct. 1246, 1247 (2017) (Breyer, J., dissenting from denial of stay of execution)
(quoting Justice Kennedy's concurrence Ayala, 135 S. Ct. 2187, and indicating that he believes
the Supreme Court should examine "whether extended solitary confinement survives Eighth
Amendment scrutiny").

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in even basic pleasures), anergia (a low level or lack of energy), and suicidal ideation." Id. at 20.
Moreover, the restrictive confinement has caused a substantial reduction in plaintiffs' "initiative
and motivation to maintain contact with family members and other loved ones"; reduced
plaintiffs' "initiative and motivation to maintain a healthy physical condition"; and "created a
profound disturbance in sleep patterns and" quantities. Id. In addition, the conditions have caused
plaintiffs to develop a variety of "coping strategies for dealing with the effects of isolation over a
long period of time." Id. at 19. For example, plaintiffs have found "creative use[s] of the limited
items available to them" and have devised "ways of distracting themselves from boredom by
relying on forms of self-entertainment." Id. Although these coping mechanisms allow plaintiffs
to deal with the negative effects of their restrictive confinement on a day-to-day basis, the cruel
irony is that, over time, they "thwart basic desire for human interaction" by making plaintiffs
reliant on "internal resources that have no connection with meaningful social interaction with
others." Id. As a result, the coping mechanisms "have ultimately deprived [plaintiffs] of a core
element of what it means to be human" in a "lasting" way that Dr. Hendricks compared to the
effects of war on soldiers' mental health. Id.
In addition to his personal evaluations of the plaintiffs and the conditions on death row,
Dr. Hendricks also discussed the scientific findings relating to the effects of isolation, although
most of the scientific literature examines "the effects of isolation for a period of a few days up to
a month," and not the results of years-long isolation, which "far exceeds the duration of isolation
examined under typical experimental procedures." Id. at 18. Even so, the scientific literature has
shown that "[e]xtended periods of isolation lead to adverse mental health, and sometimes
physical health, consequences in even previously healthy individuals." Id. Given plaintiffs'
extremely long period of isolation, Dr. Hendricks found that it is to be expected that they would

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experience similar consequences "but with a greater magnitude of symptomatology." Id. Dr.
Hendricks's summary of the relevant scientific literature is bolstered by an expert declaration
submitted by Dr. Mark Cunningham, a certified forensic and clinical psychologist. Orig. Pl.
Mem. Ex. 10, at 1. Drawing on a comprehensive review of the relevant literature, Dr.
Cunningham found that empirical research on isolating conditions like those experienced by
plaintiffs has "consistently and unequivocally" demonstrated that these conditions lead to
psychological harm—and that "as isolation and stimulus deprivation increase, psychological
deterioration and disorders correspondingly increase." See id. at 20-26 (internal quotation marks
To counter the conclusions presented by Dr. Hendricks, defendants introduce an expert
report from Dr. Gregory Saathoff, a licensed psychiatrist who has provided "regular weekly
consultation services within" VDOC since 1991. Orig. Def. Mem. Ex. 9, at 1-2.9 To form his
opinions, Dr. Saathoff interviewed each plaintiff, with the exception of Lawlor, performed some
psychological testing, and reviewed the conditions of death row and SISP's institutional and
medical files relating to plaintiffs. See id. at 21-22. Based on his research, Dr. Saathoff
concluded that "the conditions on Death Row have not caused mental, social or behavioral
deterioration in" plaintiffs. Id. at 29.
The parties engage in extensive debate about the methodologies used by Drs. Hendricks
and Saathoff as well as the accuracy of each expert's conclusions. See, e.g., id. at 25-28; Orig.
Pl. Opp. Ex. 1. Based on these dueling experts, there is a genuine dispute of fact about the actual
effects the death row housing conditions have had on plaintiffs' emotional and psychological
9 Defendants

do not rebut Dr. Cunningham's review of the scientific literature in a substantive
way; instead, they "dispute the applicability of this research to the" plaintiffs, because Dr.
Cunningham's "report does not review the actual conditions of Virginia's death row inmates."
Orig. Def. Opp. 7.

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health. But there is no genuine dispute about the significant risk that these conditions created. As
Dr. Cunningham's report as well as the scientific evidence discussed in Dr. Hendricks's report
make clear, prolonged isolation and lack of stimulation can have devastating psychological and
emotional consequences. And although defendants dispute Dr. Hendricks's conclusions about the
mental health of plaintiffs, his interviews and report provide at least a concrete contextualization
of the harm that solitary confinement can wreak. Therefore, because the objective prong of the
Eighth Amendment standard does not require the actual infliction of a "serious or significant
physical or emotional injury," but only conditions producing a "substantial risk" of such an
injury, Johnson, 708 F.3d at 525 (quoting Angelone, 330 F.3d at 634), the dispute between Drs.
Hendricks and Saathoff about the actual harm plaintiffs have suffered is not dispositive.1°
This commonsense conclusion is not only supported by scientific research and the expert
reports submitted in this case but has also begun to achieve recognition in legal circles. For
example, the Fourth Circuit and at least one Supreme Court justice have recognized the impact
that solitary or segregated confinement exerts on an inmate) 1 In his concurrence in Ayala,
Justice Kennedy discussed the "factual circumstance" of the plaintiff's solitary confinement even
though it had "no direct bearing" on the legal issues of the action, referred to the "new and
growing awareness" of the problems attendant to solitary confinement, and cited research
In addition, the Court observes that because plaintiffs are only requesting declaratory and
injunctive relief, rather than damages, there is no right to a jury trial in this civil action.
Accordingly, at trial, the task of evaluating the competing experts' opinions would be left to the
Court, and both experts' reports and various supporting materials have been entered into the
summary judgment record. Based on a review of the experts' reports, the Court finds Dr.
Hendricks's methodology is more sound than Dr. Saathoff s, and his conclusions are likewise
more persuasive. Therefore, to the extent that the harm actually experienced by plaintiffs is
material, the Court credits Dr. Hendricks's report rather than Dr. Saathoff s.
11 Plaintiffs contend that there is less case law on this question than would be expected because
many solitary confinement cases end in settlement. Orig. Pl. Mem. 12 n.2. Since the original
briefing, Justice Breyer has joined Justice Kennedy in commenting on the potential constitutional
infirmity of extended solitary confinement, as noted above.

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confirming that "[y]ears on end of near-total isolation exact a terrible price" on the psychological
health of inmates. Ayala, 135 S. Ct. at 2208-10 (Kennedy, J., concurring).
In Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015), the Fourth Circuit cited Justice
Kennedy's Ayala concurrence for the proposition that "[p]rolonged solitary confinement exacts a
heavy psychological toll that often continues to plague an inmate's mind even after he is
resocialized" and therefore determined that the prisoner's due process claim could survive
summary judgment in part because the prisoner had a "significant private interest in leaving the
restrictive conditions" of segregated confinement. Incumaa, 791 F.3d at 534. The Third Circuit
has also cited Justice Kennedy's concurrence, observing that a mentally ill prisoner's excessive
force claim might also be cognizable under the Eighth Amendment's conditions of confinement
test and that it made "palpable 'Wile human toll wrought by extended terms of isolation.'"
Young v. Martin, 801 F.3d 172, 180 n.8 (3d Cir. 2015) (alteration in original) (quoting Ayala,
135 S. Ct. at 2209 (Kennedy, J., concurring)). In addition to this case law,12 plaintiffs point to
other jurisdictions that are reevaluating the way in which they handle death row prisoners,
demonstrating the ongoing evolution in correctional and societal attitudes towards solitary
confinement. Orig. Pl. Mem. 13 (discussing changes in Colorado, Missouri, and North Carolina).
As the undisputed evidence in this record makes clear, and as courts and corrections
officers across the country have begun to recognize, the years-long isolation that the pre-2015
conditions of confinement forced on plaintiffs created, at the least, a significant risk of
substantial psychological and emotional harm. Therefore, plaintiffs have met the objective prong
of the Eighth Amendment test.

12 Since the parties originally briefed the issue, the Seventh and Ninth Circuits have echoed
Justice Kennedy's concerns. See Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017); Shepard v.
Quillen, 840 F.3d 686, 691 (9th Cir. 2016).

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C. Subjective Prong: Deliberate Indifference
With respect to the subjective prong of the Eighth Amendment standard, plaintiffs must
show that defendants acted with "deliberate indifference," a standard that "requires proof of
more than mere negligence but less than malice." Williams, 77 F.3d at 761. Specifically,
plaintiffs must show that defendants "actually [knew] of and disregard[ed] an objectively serious
condition . . . or risk of harm." Angelone, 330 F.3d at 634. In addition to direct evidence of
defendants' knowledge, plaintiffs may be able to prove deliberate indifference with
circumstantial evidence, such as a particularly obvious risk of harm or the lack of a penological
objective for the conditions of confinement. See Hope, 536 U.S. at 737-38 (2002); Wilkerson v.
Stalder, 639 F. Supp. 2d 654, 680 (M.D. La. 2007). Here, plaintiffs point to the obviousness of
the potential for harm, defendants' own policies acknowledging these risks in other contexts, and
the lack of a legitimate penological objective to prove deliberate indifference. Orig. Pl. Mem. 1622. In response, defendants argue that their policies were tailored to mitigate any danger by
providing constant mental health assistance and that the policies were justified by legitimate
security risks. Orig. Def. Mem. 28-30.
Plaintiffs have the better argument. First, as discussed above, there is a large and growing
body of literature—both academic and legal—discussing the potentially devastating effects of
prolonged periods of isolation. As one district court put it nearly two decades ago: "A
conclusion . . . that prolonged isolation from social and environmental stimulation increases the
risk of developing mental illness does not strike this Court as rocket science." McClary v. Kelly,
4 F. Supp. 2d 195, 208 (W.D.N.Y. 1998). Given defendants' status as corrections professionals,
it would defy logic to suggest that they were unaware of the potential harm that the lack of
human interaction on death row could cause. In fact, defendants' policies demonstrate their full

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awareness of this harm. VDOC procedures do not allow non-death row prisoners to stay in
disciplinary segregation for longer than thirty days in a row. Orig. Def. Mem. Ex. 19, at 10.13 As
such, defendants are certainly aware that extended stays in segregation can have harmful
emotional and psychological effects. Moreover, defendants' argument hurts, rather than helps,
their case. Although the provision of mental health services can help identify (and, hopefully,
ameliorate) the harm caused by extended segregation, defendants' practice to have death row
inmates "constantly checked by medical and mental-health personnel," Orig. Def. Mem. 28,
evinces their awareness that those conditions create a significant risk of harm for the death row
Therefore, plaintiffs have demonstrated that defendants acted with deliberate indifference
to a substantial risk of harm when imposing the pre-2015 conditions of confinement. As such,
given that plaintiffs have already met the objective prong of the test, plaintiffs have shown that
those conditions violated the Eighth Amendment.


Although plaintiffs have demonstrated that the pre-2015 conditions of confinement
violated the Eighth Amendment, they must also show that they are entitled to injunctive relief.
To demonstrate the appropriateness of an injunction, plaintiffs must show that they suffered an


Defendants contend that this is misleading because offenders housed in administrative, rather
than disciplinary, segregation are continuously confined in segregated housing without the thirtyday limit. Orig. Def. Opp. 9-10. This statement is a red herring: defendants' use of a "rest
period" with respect to some offenders placed in segregation indicates their awareness that
isolation can be harmful, and their decision to forgo the rest period for a different category of
offenders does not change that awareness.
As discussed above, the parties also disagree about whether these conditions of confinement
had a legitimate penological objective. Given the degree of evidence marshalled by both sides,
this issue would not be amenable to resolution at the summary judgment stage; in any event, it is
unnecessary to resolve the issue given the variety of other evidence that defendants knew of the
potentially harmful effects of the pre-2015 conditions.

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irreparable injury, for which remedies at law cannot adequately compensate them, that balancing
the hardships between the parties inclines in favor of an equitable remedy, and that the public
interest is not disserved by an injunction. eBay, 547 U.S. at 391. In addition, because defendants
here have voluntarily ceased the challenged conduct, plaintiffs must show that "there exists some
cognizable danger of recurrent violation." W.T. Grant Co., 345 U.S. at 633. Finally, because this
litigation challenges the conditions of confinement in a prison, the requested injunction must
conform with the requirements laid out in the PLRA. Defendants challenge plaintiffs' ability to
demonstrate their entitlement to an injunction at each step of this analysis.
A. Irreparable Harm and Adequate Remedies at Law
To satisfy the first two elements of the permanent injunction analysis, plaintiffs must
demonstrate that they have suffered irreparable harm and that there are not adequate remedies
available at law to compensate them. As a general rule, "the denial of a constitutional right . . .
constitutes irreparable harm for purposes of equitable jurisdiction." Ross v. Meese, 818 F.2d
1132, 1135 (4th Cir. 1987). Here, plaintiffs have established that the pre-2015 conditions of
confinement violated their Eighth Amendment rights and, as such, have made a clear showing
that they would be irreparably harmed if the conditions were to be reimposed. Moreover, the
reason the pre-2015 conditions violated the Eighth Amendment points to another, more concrete,
form of irreparable harm. The potential emotional and psychological harm that prolonged
periods of isolation, like those plaintiffs endured, can wreak on prisoners is paradigmatic
irreparable harm.15

Neither party makes a specific argument addressing the "adequate remedies available at law"
prong of the analysis, but the very nature of irreparable harm is that there is no adequate remedy
for it. In any event, it is clear that money damages cannot adequately compensate plaintiffs for
either the deprivation of their constitutional rights or the potential risk of psychological and
emotional harm that the pre-2015 conditions of confinement present.

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In response, defendants do not contend that the violation of plaintiffs' Eighth
Amendment rights is not an irreparable injury. Instead, they argue that, particularly given their
status as state officials, the Court should hesitate before granting an injunction based on the mere
possibility of future irreparable injury. Ren. Def. Opp. [Dkt. No. 199] 18-19. As discussed above,
this contention is addressed by the W.T. Grant line of cases and, as will be explained below,
plaintiffs have met their burden by showing a cognizable danger of a recurrent violation. Nothing
defendants argue in this section alters that analysis. As such, plaintiffs have met the first two
prongs of the injunction analysis.
B. Balancing the Hardships and the Public Interest
To obtain an injunction, plaintiffs must also show that the balance of the hardships
weighs in favor of injunctive relief and that the public interest would not be disserved by an
injunction. Plaintiffs argue here that an injunction will impose practically no burden on
defendants, who have already made the requested changes. Instead, what the injunction would
accomplish would be to prevent defendants from returning to the pre-2015 conditions, as
opposed to being forced to take some affirmative action. Ren. P1. Mem. [Dkt. No. 192] 20. In
addition, they argue that the public interest is served by an injunction because there is a strong
public interest in upholding constitutional rights. Id. at 21 (citing Newsom ex rel. Newsom v.
Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) ("Surely, upholding constitutional
rights serves the public interest.")). On the other hand, defendants argue that plaintiffs
inadequately account for the federalism principles that counsel against federal courts issuing
injunctions against state officials, the doctrine that prison officials should receive deference, and
the public interest the citizens of Virginia have in ensuring their prison administrators can run
their death row without undue interference. Ren. Def. Opp. 19-21.

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Although defendants' arguments have some merit, they cannot overcome plaintiffs'
strong showing. Given the minimally intrusive nature of the requested injunction, and even
considering traditional principles of federalism and comity, the negligible hardship state officials
might have to endure in complying with the injunction cannot outweigh the hardships plaintiffs
would suffer if forced to endure unconstitutional conditions of confinement. Moreover, although
the citizens of Virginia certainly have an interest in their prison officials being able to exercise
their professional discretion in setting policies, the injunction requested here barely intrudes on
that discretion and barely offends the public interest. When this intrusion is considered against
the strong public interest in vindicating constitutional rights and preventing future violations, it is
clear that an injunction would not disserve the public interest. Therefore, plaintiffs have made the
requisite showing and are entitled to an injunction.
C. Prison Litigation Reform Act Requirements
Under the PLRA, "[p]rospective relief in any civil action with respect to prison
conditions shall extend no further than necessary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs" and a court may not grant or approve any prospective relief
unless it "finds that such relief is narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right." 18 U.S.C. § 3626(a)(1)(A). Defendants make two conceptually
distinct arguments relying on this language. First, they argue that, as a matter of law, the PLRA
bars injunctive relief unless there is an ongoing constitutional or statutory violation. Ren. Def.
Mem. [Dkt. No. 194] 18-20. Second, they argue that, under the circumstances of this litigation,


Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 24 of 37 PageID# 4054

plaintiffs' requested injunction does not fit the need-narrowness-intrusiveness requirement. Ren.
Def. Opp. 17-18.16
1. Ongoing Violation
Defendants argue that, as a matter of law, in "situations where the alleged constitutional
violation no longer exists," prospective relief would "violate the express terms of the PLRA"
because, absent an ongoing violation, prospective relief cannot be necessary to "correct the
violation of the Federal right." Ren. Def. Mem. 18-20, 22-23. In support of this proposition,
defendants turn primarily to three sources. First, they focus on the plain language of the PLRA,
which they describe as foreclosing injunctive relief when it is not necessary to correct the
violation of a federal right. Defendants argue that logic dictates that relief cannot be necessary to
correct a violation if there is in fact no ongoing violation. Id. at 19-20. Second, they cite portions
of the legislative history and context surrounding passage of the PLRA to argue that the point of
the legislation was to "eliminate unwanted federal-court interference with the administration of
prisons." Id. at 19 (quoting Woodford v. Ngo, 548 U.S. 81, 93 (2006)). Given this view of the
PLRA, they argue that federal courts should abstain from issuing injunctive relief in the absence
of an ongoing violation. Third, defendants cite a Ninth Circuit case, Hallett v. Morgan, 296 F.3d
732, 743 (9th Cir. 2002), in which the court held: "The text of § 3626(a)(1)(A) suggests that, in
the absence of a 'current and ongoing' violation, there is no occasion to fashion prospective

16 The need-narrowness-intrusiveness argument appears more clearly in defendants' brief in
opposition to plaintiffs' motion for summary judgment than in defendants' brief in support of
their own motion for summary judgment. Given that the need-narrowness-intrusiveness
requirement has been thoroughly briefed (both at the renewed motions stage and at the original
motions stage) and that the PLRA appears to require a court to satisfy itself (even in the absence
of argument) that the requested injunction complies with the requirement, the Court will fully
consider defendants' argument, regardless of where it was most clearly raised.

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relief to cure the violation. In other words, if a violation no longer exists, the statute does not
permit the court to order prospective relief."I7 Ren. Def. Mem. 22-23 & 23 n.105.
In response, plaintiffs offer three basic arguments. First, a "bedrock principle of equity"
is that "where a defendant has voluntarily discontinued conduct that caused irreparable harm, an
injunction remains appropriate where 'there exists some cognizable danger of recurrent
violation.' Ren. Pl. Opp. 14-15 (quoting W.T. Grant Co., 345 U.S. at 633). As such, plaintiffs
argue, the Court should not interpret the PLRA to alter this bedrock principle in the absence of
clear language indicating such a congressional intent. M. at 15. Second, plaintiffs argue that the
differences in language between § 3626(a)(1)(A) and § 3626(b)(3), which limits a court's
authority to extend prospective relief to situations where it "remains necessary to correct a
current and ongoing violation of a Federal right," indicate a difference in intent. If Congress had
wished to import the "current and ongoing" requirement into the initial relief inquiry, it would
not have used different language in the two provisions. Id. at 15-16. Third, plaintiffs point to a
variety of case law in support of their position, including an Eleventh Circuit case explicitly
holding that the "current and ongoing" requirement is not applicable to the question of initial
prospective reliefI8 and a case in this district where the court "found that an injunction

17 Plaintiffs argue that this case is inapposite because it was about the extension of a consent
decree rather than the initial entry of injunctive relief and, as such, "does not address the issue
here: whether the PLRA eliminates the Court's equitable authority to grant an injunction in the
first instance." Ren. Pl. Opp. [Dkt. No. 198] 17. Although plaintiffs correctly describe the factual
circumstances in Hallett, the Ninth Circuit made clear that it was interpreting § 3626(a)(1)(A)—
the provision at issue here.
18 This case, Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010), postdates Cason v. Seckinger,
231 F.3d 777 (11th Cir. 2000), an Eleventh Circuit case cited by defendants in support of their
position. Defendants' interpretation of Cason as supporting the idea that relief may not be
entered in the first instance in the absence of an ongoing violation is questionable at best, see
Thomas, 614 F.3d at 1320 ("Our circuit has previously recognized that the 'current and ongoing'
requirement is distinct from the standard governing the initial entry of injunctive relief." (citing

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`precluding Defendants from returning to a specific prior policy that is no longer in force and has
been found to be unconstitutional comports with the requirements set forth in 18 U.S.C.
§ 3625(a)' sic that an injunction must be narrowly drawn, necessary, and the least intrusive
means of granting relief."19 Id. at 16-17.
Plaintiffs' view is correct. As an initial matter, the case law cited by both parties is not
particularly helpful. There are cases going both ways and none of the cited cases is binding on
this court. The better approach is first to recognize the background equitable rule that courts have
the authority to issue prospective relief even in the absence of an ongoing violation, see W.T.
Grant, 345 U.S. at 633, and that the Supreme Court has counseled that courts "should not
construe a statute to displace courts' traditional equitable authority absent the clearest command
or an inescapable inference to the contrary," Miller v. French, 530 U.S. 327, 340 (2000) (internal
quotation marks and citations omitted).
In the PLRA context, Congress has demonstrated that it knows how to give courts a
"clear command" not to grant equitable relief except in cases of an ongoing violation because it
did exactly that in the termination provision. In the termination section of the PLRA, Congress
provided that defendants can move to terminate an injunction related to prison conditions after
two years and a court must grant such a termination motion unless "the court makes written
findings based on the record" that, among other things, "prospective relief remains necessary to
correct a current and ongoing violation of the Federal right." 18 U.S.C. § 3626(b)(3). Congress

Cason)), but in any event, Thomas makes clear that the Eleventh Circuit believes there is no
"current and ongoing" requirement for the initial entry of relief, see id.
19 In this case, Prison Legal News v. Stolle, No. 2:13-cv-424, 2015 WL 1487190 (E.D. Va. Mar.
31, 2015), the court granted an injunction stopping defendants from reinstating a former policy,
but it did not analyze the question whether such an injunction is appropriate under the PLRA in
the absence of an ongoing violation. Instead, it recited at the end of the merits analysis its finding
that the injunction complied with the need-narrowness-intrusiveness requirement.

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used a different test—the need-narrowness-intrusiveness test—in the PLRA provision governing
whether a court may grant prospective relief in the first instance. See id. § 3626(a)(1)(A) ("The
court shall not grant or approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the Federal right."). That
Congress explicitly included an "ongoing violation" requirement in the termination provision
and omitted it from the initial relief provision implies that Congress did not intend for courts to
be bound by the "ongoing violation" requirement when determining whether equitable relief is
initially available. At the least, the difference between the two provisions means that Congress
did not give the "clearest command" that initial relief requires an ongoing violation.
Neither of defendants' remaining arguments is persuasive. As discussed above, the "plain
language" of the PLRA does not in fact indicate that an ongoing violation is necessary to support
the initial entry of an injunction, and although the context of the enactment of the PLRA is
relevant and does incline toward a more onerous standard for the entry of injunctive relief, this
context can neither provide the "clearest command" necessary to overcome the background legal
rule that vests courts with the ability to issue prospective relief even in the absence of an ongoing
violation nor overcome the implication from the language of the PLRA that different standards
apply in the initial entry and termination contexts.
As such, the Court finds that an ongoing violation of a constitutional right is not a
prerequisite for the initial entry of injunctive relief under the PLRA.
2. Need-Narrowness-Intrusiveness Requirement
Defendants also argue that plaintiffs' requested injunction does not meet the neednarrowness-intrusiveness requirement because it is not "sufficiently narrow" and "would not be

Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 28 of 37 PageID# 4058

the least intrusive means" to correct the violation. Ren. Def. Opp. 17. Although plaintiffs request
only an injunction prohibiting VDOC from reinstating the pre-2015 conditions of confinement,
defendants have a host of questions: "But what conditions? And as to which inmates? And for
what duration? Would the injunction just require occasional contact visitation? More recreation
time? Group recreation? Or just recreation in a gymnasium, as was afforded Mr. Prieto during
the pendency of his appeal? . . . [And h]ow would VDOC comply with any command for
congregate recreation if the number of death row inmates dwindled—as it may soon—to a single
inmate?" Id. at 17-18.
As plaintiffs have explained, they "seek to enjoin a specific set of conditions on Death
Row—namely, their solitary confinement, as characterized by the combination of: (1) twentythree hours per day alone in cells; (2) no contact visitation; (3) no congregate recreation or
programming; [and] (4) only five hours per week of outdoor recreation in separate cages." Orig.
Pl. Reply [Dkt. No. 126] 19 (emphasis added). This explanation answers the bulk of defendants'
rhetorical questions, as it specifically delineates the combination of conditions that plaintiffs
want an injunction to prohibit. Moreover, by focusing on a prohibition of this combination of
conditions, plaintiffs' request is both narrow and minimally intrusive: rather than ordering
specific affirmative steps, it leaves defendants free to craft any other set of policies relating to
cell time, visitation, and recreation that defendants, in their professional expertise, believe satisfy
both the Eighth Amendment and the prison's need for security.20 Finally, with respect to
duration, the requested injunction will only remain in effect for two years absent a finding by the

And, indeed, defendants appear to have already crafted a set of policies that both parties agree
are constitutional and practically workable. Therefore, at this point, complying with the
injunction will require no affirmative steps at all on the part of defendants, much less any
substantial financial outlay.


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Court in a future termination proceeding that "prospective relief remains necessary to correct a
current and ongoing violation." 18 U.S.C. § 3626(b)(3).
D. Equitable Mootness
Defendants also raise an argument grounded in "prudential" or "equitable" mootness, in
which they argue that various prudential considerations—including the inability to fashion
effective relief given the intervening change in policy, the "difficult and sensitive" legal issues
involved in the case, and the "deference traditionally afforded the administrative and security
judgments of prison officials"—should persuade the Court to, "in the exercise of its discretion,
stay its hand and decline to consider an award of equitable relief." Ren. Def. Mem. 20-24
(internal quotation marks omitted). In response, plaintiffs argue that the continued vitality of
equitable mootness has been placed in question by recent Supreme Court decisions, Ren. Pl.
Opp. 11-12, and that the request for injunctive relief is not equitably moot because there is a
significant possibility of reversion, id. at 12-14. In reply, defendants cite to W.T. Grant and argue
that it has never been overruled and remains binding on this Court. Ren. Def. Reply [Dkt. No.
205] 2-6.
Unfortunately, defendants have pushed together two distinct inquiries that are better left
apart. First, as all parties agree, plaintiffs must make a threshold showing that "there exists some
cognizable danger of recurrent violation," W.T. Grant, 345 U.S. at 633, to obtain an injunction.
Second, and where the parties disagree about the appropriate legal test, defendants appear to
argue that even if plaintiffs can make this showing, additional "prudential" considerations should
convince the Court to stay its hand and refuse to issue an injunction. It is the continued vitality of
this "equitable mootness" doctrine that plaintiffs attack. The Court will consider the threshold
W.T. Grant showing and the potential additional "prudential" considerations in turn.

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1. Possibility of Recurrent Violation
All parties agree that W.T. Grant establishes the appropriate preliminary test: plaintiffs
cannot obtain an injunction unless they can demonstrate that "there exists some cognizable
danger of recurrent violation, something more than the mere possibility which serves to keep the
case alive." W.T. Grant, 345 U.S. at 633; see also Ren. Pl. Mem. 15; Def. Reply 2-6.21
Although the parties agree on the legal standard,22 they vehemently disagree on plaintiffs'
ability to meet it. Plaintiffs argue that this litigation was the catalyst for the changes made by
defendants, who continue to believe that the pre-2015 conditions of confinement were justified
by legitimate security concerns. Ren. Pl. Mem. 16-19. Plaintiffs contend that once this litigation
is not hanging over defendants' heads, they may be willing to revert to the pre-2015 conditions.
See id. Plaintiffs also point out that, without an injunction, there is no "legal barrier to prevent
VDOC from reinstating more restrictive conditions," because VDOC may "promulgate and
revoke regulations without notice, comment, or judicial review." Id. at 19. Therefore, plaintiffs

There is some ambiguity about whether the Fourth Circuit has decided this issue. Compare
Fourth Circuit Op. 13 ("[I]t is more than a 'mere possibility' that Defendants will alter Plaintiffs'
current conditions of confinement." (citing W.T. Grant, 345 U.S. at 633)), with id. at 15 n.4 ("On
remand in this case, the city may attempt to show that the likelihood of its engaging in similar
constitutional violations is sufficiently remote to make injunctive relief unnecessary." (internal
quotation marks omitted)). Despite the Fourth Circuit's language that plaintiffs had satisfied the
W.T. Grant standard, it seems that the court did not intend to hold anything with respect to
whether plaintiffs had shown a cognizable danger of recurrent harm, a reading of the opinion
supported by both parties' decision to expend substantial resources on briefing the W.T. Grant
question for this Court. Moreover, the parties have engaged in additional discovery and briefing
tied to this question, and the Court will address the question anew.
22 In their reply brief, defendants jump on a purported "concession" by plaintiffs that they have
to show a "substantial risk" of future harm. Ren. Def. Reply 6. Although plaintiffs do say at one
point in their response brief that "an injunction is appropriate where substantial risk of future
irreparable harm is shown," Ren. Pl. Opp. 16, this appears to be a loose bit of drafting. Reading
the briefing as a whole, it is clear that plaintiffs and defendants correctly agree that the W.T.
Grant standard is the appropriate standard.

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believe that any change of heart on defendants' parts will be easily implementable and difficult
to challenge in a timely fashion.23
In response, defendants largely contend that there is no cognizable danger of recurrent
violation, because Clarke, Zook, and Chief of Corrections Operations A. David Robinson
("Robinson") "have all stated, under oath, that they do not intend to return to the prior policies"
and there is no evidence suggesting that these statements are false. Ren. Def. Reply 6. Moreover,
defendants contest plaintiffs' characterization of the timeline of change, pointing to deposition
testimony from Clarke and Robinson indicating that they had begun conversations about
changing death row conditions as early as 2011, well before this civil action was filed, even
though those changes were not implemented until 2015. See Ren. Pl. Mem. Ex. 1, at 139-42; id.
Ex. 2, at 42-51.
The undisputed facts partially support both parties' version of events. On the one hand,
plaintiffs are unable to produce any evidence to suggest that Clarke and Robinson did not begin
engaging in conversations about death row conditions soon after Clarke was hired in 2010, and
Clarke and Robinson have given sworn testimony consistent with each other that those
conversations did take place. At the same time, those conversations were described only as
preliminary and there is no documentary evidence indicating their content nor was the VDOC
Executive Team looped in until 2015, after the litigation was started. Moreover, it is clear that
there was at least some pressure put on VDOC by the pending litigation. For example, the record
includes a variety of emails from Kimberly Lipp, Chief of VDOC's Architectural and
Engineering Services Department, that discuss the death row project being particularly time23 Plaintiffs'

argument that even if the current officials in charge of VDOC are committed to the
changes, it is likely that one or more of these officials will soon be replaced, Ren. Pl. Mem. 1920, has been rendered moot because the recently elected governor reappointed Clarke to remain
the Director of VDOC, Def. Mot. to Supp. the Record [Dkt. No. 214] Ex. 1.

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sensitive in reference to pending litigation. See id. Ex. 8 (discussing how the death row
construction project had previously "avoided a major legal issue" for VDOC and informing a
colleague that VDOC was "again under serious threat of being sued" for issues relating to the
project). Defendants do not dispute that there is no legal barrier to a future Director reinstating
the pre-2015 policies nor do defendants dispute that the Director serves at the pleasure of the
governor. The most persuasive evidence in this record, as recognized by the Fourth Circuit, is the
"significant[)" fact that "throughout the course of this litigation, Defendants have refused to
commit to keep the revised policies in place and not revert to the challenged practices." Fourth
Circuit Op. 13-14.
Taken together, these facts are sufficient to establish that (1) defendants' change from the
pre-2015 conditions of confinement to the current conditions was influenced, although not
entirely dependent on, the current litigation; (2) there is no legal barrier to defendants' returning
to the pre-2015 conditions nor is there any pre-implementation mechanism for plaintiffs to
challenge such a return; and (3) although defendants individually state they do not currently
intend to return to the pre-2015 conditions, they have declined to commit VDOC to this
nonreversion promise. Given these facts, plaintiffs have met their burden of showing a
"cognizable danger of recurrent violation" in the absence of injunctive relief because many
different changed circumstances could lead VDOC to revert to the pre-2015 conditions. In
particular, VDOC's consistent refusal to represent to the Court that it will not revert to the pre2015 conditions and there being no way for plaintiffs to adequately and timely challenge a future
reversal support the need for an injunction.


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2. Prudential Concerns
The various "prudential considerations" cited by defendants do not convince this Court to
forgo the exercise of its equitable discretion and decline to issue an injunction. The Fourth
Circuit has, in the past, recognized the existence of a "prudential" or "equitable" mootness
doctrine that is separate from constitutional mootness. See, e.g., S-1 & S-2 v. Spangler, 832 F.2d
294, 297 (4th Cir. 1987). In Spangler, the Fourth Circuit declined to grant injunctive relief based
on three prudential considerations: a lack of a "present need for remedial relief from the federal
courts," the "difficulty and sensitivity of the constitutional issue at the core" of the action, and
the ability for future plaintiffs to challenge the underlying conduct if it were to reoccur. Id. at
297-98. Although defendants here primarily base their prudential arguments around these three
factors, and plaintiffs seem to agree that the "Fourth Circuit historically has looked to" these
three factors in deciding equitable mootness, Ren. Pl. Opp. 12, the Court reads Spangler to allow
courts to evaluate any prudential considerations that might weigh in favor of or against granting
equitable relief.
To support their position that this action is equitably moot, defendants primarily argue
that there is no immediate need for relief because the challenged conduct will likely not reoccur,
as discussed above, and that the constitutional issues here are "difficult and sensitive from [a]
legal perspective, and a practical one." Ren. Def. Mem. 20-24. Plaintiffs respond that there is a
legitimate risk of reversion to the unconstitutional conditions, Ren. Pl. Opp. 12-14,24 and stress

Plaintiffs also argue that recent Supreme Court decisions "call into question the continued
vitality of the equitable mootness doctrine." Ren. Pl. Opp. 11 (formatting altered). In the
decisions they identify, Lexmark International, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377 (2014), and Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014), the Supreme
Court looked with disfavor on the use of prudential considerations in deciding standing and
ripeness. These doctrines, the Court commented, are in "tension" with "the principle that a
federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging."

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that the injunction they seek is minimally intrusive, requiring only that defendants not revert to
the pre-2015 conditions, not that they take specific affirmative steps to alter conditions now or in
the future, and allowing for the possibility of temporarily reinstituting restrictive conditions in
the event of an emergency, see id. at 17-18; Ren. Pl. Mem. 21-22.
In addition, amici curiae the American Civil Liberties Union Foundation of Virginia and
the Rutherford Institute have filed a Statement of Position focused on the equitable mootness
question. They argue that the use of equitable mootness to avoid reaching the merits of plaintiffs'
claim would "undermine the system established by Congress and the Supreme Court to ensure
that important civil rights are properly vindicated." Statement of Position [Dkt. No. 207] 1. As
amici explain, Congress has passed a number of fee-shifting statutes, including 42 U.S.C.
§ 1988, to enable private parties adequately to enforce federal civil rights. See id. The Supreme
Court has interpreted these statutes only to allow for parties to recover attorney's fees when they
have obtained a judgment or other court order cementing their victory. See Buckhannon Bd. &
Care Home, Inc. v. W.V. Dep't of Health & Human Resources, 532 U.S. 598 (2001). In doing
so, the Supreme Court explicitly considered the possibility of tactical mooting, where defendants
might be encouraged by a lawsuit to make structural changes that vindicate plaintiffs' rights but
that they might do so before a court decides the case to avoid attorney's fee awards. This
situation, the Supreme Court explained, is unlikely to occur frequently because the high
constitutional standard for mootness ensures it is very difficult for a defendant unilaterally to
moot a civil action. See id. at 608-09.

Lexmark, 134 S. Ct. at 1386 (internal quotation marks omitted). Neither case squarely addressed
the doctrine of equitable mootness, and the Fourth Circuit's decisions blessing equitable
mootness are still binding on this Court. At the same time, these cases remind the Court that
equitable mootness is the exception rather than the rule; in the ordinary case, a court is obligated
to reach the merits.

Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 35 of 37 PageID# 4065

As amici explain, dismissing plaintiffs' claims on equitable mootness grounds would
undercut this logic, as it would lower the bar for mootness and allow both the specific defendants
in this action and future potential defendants to moot a case to avoid having to pay attorney's
fees. This outcome would undermine the structure of private civil rights enforcement that
Congress has established, which is predicated on the ability of private litigants to recover their
attorney's fees.25
Taken together, these prudential considerations do not convince the Court to stay its
hand. Although the constitutional issues here are relatively sensitive and prison administrators
typically receive broad deference from the courts in making security determinations, the
particular circumstances of this action demonstrate that a ruling for plaintiffs on the merits would
not overly intrude on defendants' ability to manage the prison system safely. At this point,
discovery is complete, the constitutional issues are fully framed for the Court, the legal standard
is clear, and the injunction plaintiffs request would require extremely little affirmative action
from defendants. Moreover, as discussed above, plaintiffs have shown at least a cognizable
danger that VDOC administrators, present or future, may revert to the pre-2015 conditions, and
defendants refuse to allay this concern by representing to the court that reversion will not occur.
Finally, the concerns expressed by amici about the danger that a broad application of equitable
mootness poses to the carefully structured federal civil rights regime are well-taken and counsel
against dismissing plaintiffs' claims on prudential grounds. Therefore, the Court rejects
defendants' argument that this action should be dismissed on prudential mootness grounds.

Although neither party discusses the attorney's fees issues, it was addressed by the Spangler
court in a footnote. In that pre-Buckhannon case, the Fourth Circuit observed that "a
determination of mootness of the action on the merits [does not] preclude an award of attorney's
fees on remand." Spangler, 832 F.2d at 297 n.l. As such, the connection between attorney's fee
awards, underenforcement of federal civil rights, and tactical mooting introduces an additional
prudential wrinkle that deserves serious consideration from the Court.

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For the reasons stated above, plaintiffs' Motion for Summary Judgment will be
GRANTED and defendants' Motion for Summary Judgment will be DENIED by an appropriate
Order to be issued with this Memorandum Opinion.
Entered this,,/ day of February, 2018.
Alexandria, Virginia
Leonie M. Brinkema
United States District Judge


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