Thorpe v. Clarke

37 F.4th 926

William THORPE; Frederick Hammer; Dmitry Khavkin; Gerald McNabb ; Gary Wall; Vernon Brooks; Brian Cavitt; Derek Cornelison; Christopher Cottrell; Peter Mukuria; Steven Riddick; Kevin Snodgrass, Plaintiffs – Appellees,

v.Harold CLARKE; Randall C. Mathena; H. Scott Richeson; A. David Robinson; Henry J. Ponton; Marcus Elam; Denise Malone ; Dr. Steve Herrick; Tori Raiford; Jeffrey Kiser; Carl Manis, Defendants – Appellants,andVirginia Department of Corrections, Defendant.

Professors and Practitioners of Psychiatry and Psychology; Former Corrections Executives; Roderick and Solange MacArthur Justice Center, Amici Supporting Appellant.

No. 21-1714

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2022

Decided: June 14, 2022

ARGUED: Margaret Hoehl O'Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Vishal Mahendra Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Andrei Alexander Popovici, WHITE & CASE LLP, Washington, D.C., for Appellees. ON BRIEF: Mark R. Herring, Attorney General, K. Scott Miles, Deputy Attorney General, Michelle S. Kallen, Acting Solicitor General, Brittany M. Jones, Deputy Solicitor General, Laura H. Cahill, Assistant Attorney General, Rohiniyurie Tashima, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Tara Lee, Daniel Levin, Kristen J. McAhren, Timothy L. Wilson, Jr., Nathan Swire, WHITE & CASE LLP, Washington, D.C.; Eden Heilman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for Appellees. Jacob Frasch, Washington, D.C., Robert P. Sherman, Boston, Massachusetts, Andrew P. Valentine, DLA PIPER LLP (US), East Palo Alto, California, for Amici Professors and Practitioners of Psychiatry and Psychology. Laura Rovner, Molly O'Hara, Student Attorney, Kevin M. Whitfield, Student Attorney, Jamie Ray, Student Attorney, Student Law Office, Civil Rights Clinic, UNIVERSITY OF DENVER STURM COLLEGE OF LAW, Denver, Colorado, for Amici Former Corrections Executives. Rosalind Dillon, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois; Daniel M. Greenfield, Roderick & Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Amicus The Roderick and Solange MacArthur Justice Center.

Before GREGORY, Chief Judge, THACKER, Circuit Judge, and FLOYD, Senior Circuit Judge

Affirmed by published opinion. Senior Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.

FLOYD, Senior Circuit Judge:

In this putative class action, Plaintiffs allege that as prisoners at two of Virginia's supermax facilities, they have suffered severe isolation in violation of the U.S. Constitution. Supermaxes are maximum-security prisons designed to segregate the most dangerous prisoners from the general prison population. Their use has increased in recent decades, in part as a response to the rise in prison gangs and violence. And conditions in these prisons have long been recognized as "synonymous with extreme isolation." Wilkinson v. Austin , 545 U.S. 209, 214, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). They deprive prisoners of nearly all environmental and sensory stimuli and of nearly all human contact for 22–24 hours a day.

Plaintiffs acknowledge that isolation has a place in today's prisons. But they object the Virginia Department of Corrections (VDOC) has not used its supermax facilities for any legitimate penological purposes. Instead, Plaintiffs claim, Virginia and its officers have warehoused prisoners in solitary, without any meaningful path back to general population, to justify the profligate costs of building and running those institutions. Plaintiffs now bring this action against VDOC and several of its officials for violating their Eighth Amendment right to be free from cruel and unusual punishment and their Fourteenth Amendment right to receive sufficient process.

In response, Defendants focus on qualified immunity. Even if they committed the violations, Defendants posit, case law that existed in 2012, when their latest solitary-confinement program went into effect, simply did not put them on notice that either the conditions themselves or the procedures used to decide who belongs in them violated the Constitution. The problem for Defendants, however, is that they invoke qualified immunity at the motion to dismiss, before any of the evidence is in. And on the facts Plaintiffs have pleaded, Defendants cannot succeed: On the Eighth Amendment charge, Plaintiffs have adequately alleged—even by Defendants' own measure—that Defendants knew the harms long-term solitary confinement causes and disregarded them. But qualified immunity does not protect knowing violations of the law.

Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). As to the Fourteenth, Plaintiffs suggest Defendants violated even the most foundational due process guarantees: notice and an opportunity to respond. Defendants cannot meaningfully argue they did not know due process requires at least that much. See Mathews v. Eldridge , 424 U.S. 319, 348, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Defendants' contentions boil down to disagreements over the facts: what they knew and when, and what procedures they offered in practice. But at this stage, we take Plaintiffs' allegations as true and affirm the district court's denial of the motion to dismiss.

I.

Plaintiffs are prisoners living in long-term solitary confinement—some as long as 24 years—in Red Onion and Wallens Ridge State Prisons VDOC operates. They bring this action for declarative and injunctive relief as well as damages against VDOC and several corrections officers who created and administered their segregation program. Plaintiffs also seek to represent a class of similarly situated prisoners. But this appeal comes to us at an early stage: the district court's denial of Defendants' motion to dismiss. Well-pleaded allegations establish the following facts.

All Plaintiffs were originally sentenced to confinement in general population but were at some point assigned to either Red Onion or Wallens Ridge. VDOC built these supermaxes in the 1990s, six years after publishing a report that faulted a previous solitary facility, Mecklenburg, for using its confinement program to fill empty beds for economic, not penological purposes. Plaintiffs allege that Red Onion and Wallens Ridge have followed the same practices and for the same reasons. They point to several investigations and reports conducted by legislators and the U.S. Department of Justice that allegedly pressured VDOC in 2012 to introduce the Step-Down program to help progress prisoners to lower security levels through a system of incentives and periodic reviews. But even that program, Plaintiffs now maintain, runs roughshod over basic constitutional guardrails.

Step Down offers two pathways, Special Management (SM) and Intensive Management (IM). Both move prisoners through levels 0, 1, and 2 to a level called SL-6, whereupon VDOC maintains prisoners receive more freedoms, but Plaintiffs allege solitary confinement remains severe. The principal difference between IM and SM is that SM prisoners may one day be transferred to general population, provided they have no disciplinary infractions at SL-6, but IM prisoners may not—unless VDOC first reclassifies them as SM.

Plaintiffs allege concerning confinement conditions. They claim to spend 22–24 hours each day in cells smaller than a parking space. Steel doors, lined with solid strips, halt communication with others, and opaque windows obscure not just the outside but even the inside of the prison; bright lights stay on all day and night. Plaintiffs also claim to experience only perfunctory interactions with mental-health professionals and that VDOC's answer to threats of self-harm is to strip prisoners naked, strap them to a gurney, and feed them a liquid diet until they change their minds. As for out-of-cell time, Plaintiffs allege they receive just one hour of non-contact visitation per week, a shower three times a week, and one hour of exercise a day in a small cage—but they must agree to a cavity search each time they wish to leave their cells. VDOC then denies Plaintiffs all productive activities, save for the Challenge Series workbooks that are supposed to aid prisoners' progress through Step Down. Adding to all that, Plaintiffs claim, they cannot earn any good-time credits (or earn them at a much-reduced rate) and cannot receive parole. Plaintiffs allege severe mental-health problems as a result, including psychosis, hallucinations, suicidal acts, and permanent neurological damage.

Plaintiffs also allege deficiencies in their status reviews. For both SM and IM designees, mill-run staff initially assess prisoners' progress. Supervised by a Unit Manager and a Building Management Committee (BMC), which often consists solely of the same Unit Manager, the staff fill out weekly Status Rating Charts. A negative review on the charts often means prisoners have to restart at level 0. Yet prisoners do not receive a hearing, do not have access to the charts, and cannot appeal any re-start decisions. VDOC provides two other, "formal" reviews. The Institutional Classification Authority (ICA) conducts one, every 90 days. But the ICA, according to Plaintiffs, does not review prisoners' "internal" progress through the program, only their "external" assignment to the supermax facilities. And it holds hearings that last only minutes and result in pre-filled, rote explanations such as "Remain Segregation." J.A. 95. The External Review Team (ERT) conducts another review, but only for IM prisoners. Even then, the ERT provides no written decisions and reviews solely the original directive to place prisoners in IM.¹

On top of this, Plaintiffs challenge the metrics corrections officers use to assess their progress through Step Down. They insist that individual...