Reyes v. Clarke

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

Civil Action No. 3:18CV611

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

August 27, 2019

MEMORANDUM OPINION

Nicolas Reyes, a Virginia inmate proceeding with counsel filed this 42 U.S.C. § 1983 action. The matter is before the Court on Defendants' RULE 12 MOTION TO DISMISS. (ECF No. 15.) For the reasons set forth below the RULE 12 MOTION TO DISMISS (ECF No. 15) will be denied.

I. STANDARD FOR A MOTION TO DISMISS

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original). But this standard is not satisfied by complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts that are sufficient "to raise a right to relief above the speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). And, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient tostate all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)).

II. SUMMARY OF ALLEGATIONS

At this stage of the proceedings, the factual allegations in the Complaint must be taken as true, unless they are conclusory, formulaic, or implausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In this case, the factual allegations in the Complaint are neither conclusory, formulaic, or implausible. Thus, they will be taken as true. All reasonable inferences are extended to Reyes.

A. Reyes Generally

Reyes "is a 47-year-old native of El Salvador, who has been in the custody of the [Virginia Department of Corrections, ("VDOC")] since 2001. Reyes is a monolingual Spanish speaker, and is unable to read or write in any language." Compl. ¶ 16.¹ Reyes arrived at Red Onion State Prison ("Red Onion") in June of 2001and remained there until July of 2003 when he was transferred to Wallens Ridge State Prison ("Wallens Ridge") and placed in the general population. Id. ¶ 67.

On February 24, 2006, while at Wallens Ridge Reyes was assaulted by his cellmate. Id. ¶ 68. "Reyes was left bloodied and naked on the floor of his cell. He suffered broken teeth and a head injury." Id. Reyes was charged with assault by VDOC officials. Id. ¶ 69. "Following the assault [apparently in 2006], VDOC sent [] Reyes [back] to Red Onion and placed him in the long-term solitary confinement unit, where he remains to this day." Id. ¶ 72.

B. Reyes's Confinement At Red Onion

1. Red Onion: The Facility And Confinement There

The "VDOC constructed Red Onion . . . as a 'supermax' prison . . . . '[A] totally locked down facility, where most offenders remain in the cell 23 hours a day, seven days a week.'" Id. ¶¶ 53-54 (citation omitted).) "The architectural design of Red Onion emphasizes isolation and total control. The segregation cells are isolating by design, featuring solid steel doors, wide distances separating cells opposite one another, and single occupancy recreation cages." Id. ¶ 56.

The only opportunity for prisoners in solitary confinement to communicate with one another is to speak to prisoners who share a ventilation opening. The practice is called 'getting on the vent,' and in this way prisoners can speak to a maximum of three otherpersons: the person in the cell directly beside his and the two men housed either directly above or below. Otherwise, prisoners may try to communicate silently with prisoners on the opposite side of the pod by standing at the narrow window in the door and making hand signals.

Id. ¶ 57.

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

In May 2009,

VDOC deemed [] Reyes "not a threat to [Red Onion State Prison] or staff." VDOC promoted [] Reyes to Progressive Housing, a setting aimed ostensibly at helping people transition out of solitary confinement, for a brief period of roughly four months. However, when [] Reyes expressed fear of having another cellmate and refused to leave his cell, Defendants returned [] Reyes to the long-term solitary confinement unit.

Id. ¶ 92 (alteration in original). Reyes alleges that his refusal was a product of the paranoia that he developed from his years in isolation. Id. ¶ 93. Although "VDOC operates an entire unit for prisoners who 'express resistance to out of cell activities or a general population environment,' so as to 'reintegrate offenders into a general population setting in preparation for advancement to a lower security level,'" Reyes was not offered an opportunity move to that unit. Id. ¶ 93 (citation omitted).

Once again, in September of 2010, VDOC staff concluded that

Reyes [was] "not . . . a threat to the orderly operation of this institution." In October 2010, [] Reyes declined to move to Progressive Housing out of fear and paranoia. Instead of determining how best to reintegrate [] Reyes into general population after so many years ofsolitary confinement, or assuring [] Reyes that he would not be forced to live with another cellmate who would assault him, VDOC staff disciplined him for "disobeying an order" and he stayed in solitary confinement.

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

In July 2011, Reyes was again approved for release to Progressive Housing because the VDOC determined that Reyes was not a threat to the orderly operation of Red Onion. Id. ¶ 95. "Nevertheless, [Reyes] remained in solitary confinement. Id.

At Reyes's "August 2011 segregation review, VDOC staff decided that Reyes would remain in solitary confinement based solely on two disciplinary offenses: the assault charge from 2006 and the disobeying-an-order charge for refusing a move to progressive housing in 2010." Id. ¶ 97. Thereafter, at Reyes's regular 90-day segregation reviews, VDOC continued to keep Reyes in segregation based on the above infractions and/or "a subsequent disciplinary offense for failing to submit to a drug test when there was no indication that Reyes had used drugs or even understood the order to submit to a drug test." Id. ¶ 98.

C. The Step-Down Program

"In 2011, VDOC began transitioning to the so-called "Step-Down or 'Pathways' Program" with the purported goal of providing a defined pathway for prisoners to transition out of long-term, indefinite solitary confinement. Under the Step-Down Program, there are two pathways [out of solitary confinement]: IntensiveManagement (IM) and Special Management (SM)." Id. ¶ 58 (citation omitted). "Each pathway consists of privilege levels 0, 1, and 2." Id.

According to the VDOC's Step-Down Program "Operations Strategy" manual, the conditions for inmates at Level 0, the lowest level, were as follows for the SM pathway:

a. One hour of recreation per day outside in recreation cages;

b. Three showers per week;

c. Two fifteen-minute phone calls per month;

d. One one-hour non-contact visitation per week;

e. No video visitation;

f. No television;

g. Shackled with dual escort whenever out of cell;

h. No out-of-cell programming, law library access, or religious services;

i. Limited commissary list with no food items for purchase.

Id. ¶ 63 (footnote omitted). The VDOC recently amended the policy to provide for two hours of recreation per day, five days a week. Id. ¶ 63 n.8. In order for an inmate to progress from Level 0, he must participate in the Step-Down Program. Id. ¶¶ 59-60. For inmates, such as Reyes, on the SM pathway, "[t]he basic Step-Down Program consists of seven English-language journals called 'the Challenge Series,' that purport to change the behavior and mindset of prisoners to improve their likelihood of success in general population. In-person instruction accompanies journals three through seven." Id. ¶ 61. Under the program, prisoners "such as[] Reyes are entitled to progressively earn more privileges as they move through the program." Id. ¶ 76.

1. Reyes Was Allegedly Improperly Classified To The SM Pathway

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

display an institutional adjustment history indicating repeated disruptive behavior at lower level facilities, a history of fighting with staff or offenders, and/or violent resistance towards a staff intervention resulting in harm to staff, other offenders

...